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^f'i
REPORTS OF CASES
IN LAW AND EQUITY, ARGUED AND
DKIERMINEU IN THE
Supreme Court of Georgia,
AT ATLANTA.
l*arl of Soi)l('ml)er 'l>rm, 1879, and of
February Term, 1880.
Volume LXIV. < " '
X-*
Bv JACKSON & LUMPKIN, Repdrteus.
ATLANTA, GEORGIA:
JAS. P. HARRISON & CO., PRINTERS AND PUBLISHERS.
I88I.
Entered according to Act of Congress in the year 1881, by
JACKSON & LUMPKIN,
In the office of the Librarian of Congress at Washington.
JITIWES AND OFFIOETIS
OF THK
Supreme Court of Georgia
DURINC; THE PERIOD OF THESE REPORTS.
HON. HIRAM WARNER. Chief Justice Greenville
HON. LOGAN E. BLECKLEY. Associate Justice. . . . Atlanta.
HON. JAMES JACKSON. Associate Justice Macon.
HON. MARTIN J. CRAWFORD. Asssocialc Justice,* . Columbus
HENRY JACKSON, Reporter Atlanta.
J. H. LUMPKIN, Assistant Reporter Atlanta.
Z. D. HARRISON. Clerk Atlanta.
JUDGES OF THE SUI^EKIOK COITRTS.
CIRCUIT. JUDOE. RESIDENCE.
ALBANY Hon. Gilrert J. Wrighi'. . . Albany.
ATLANTA Hon. Geor(;e Hillver. . . . Atlanta.
AUGUSTA Hon. Ckaihorne Snead. . . Augusta.
BLUE RIDGE Hon. Georc.e N. Lester, . . Marietta.
BRUNSWICK Hon. Martin L. Mershon, . Brunswick.
CHATTAHCMKHKK.HoN. Martin J. Crawkorp. Columbus.
Hon. Edgar M. Bijtt,+ . ; . . Buena Vista.
Hon. James L. Wimherey,*! .Lumpkin.
CHEROKEE Hon. Cicero D. McCutchen. Dalton.
COWETA Hon. Hi;(iH Buchanan.. . . Newnan.
EASTERN Hon. William B. Fleming.. Savannah.
FLINT Hon. Alexander M. Speer,. Griftln.
MACON Hon. Thomas J. Simmons,. . Macon.
MIDDLE, Hon. Herschel V. John.son, Bartow.
NORTHERN Hon. Edward H. Pottle. . Warrenton.
OCMULC^.EE Hon. Thomas G. Lawson, . Eatonton.
OCONEE Hon. A. C. I'ate Hawkinsville
PATAULA Hon. Arthur Hood Cuthbert.
ROME, Hon. J. W. H. Underwood. . Rome.
SOUTHERN Hon. Augustus Hansell. . Thomasville.
SOUTHWESIKKN, Hon. Charles F.Crisp,. . . Americus.
WESTERN Hon. Alexander S. Erwin, Athens.
JUDGES OF THE CITY COITRTS.
CITY COURT. JUDGE. RESIDENCE.
ATLANTA Hon. Richard H. Clark,. . Atlanta.
CLARK COUNTY . Hon. Howell Comp., Athens.
SAVANNAH Hon. William D. Harden,. Savannah.
•Hon. i.oGAN E. Bi.RCKLKV havinff resigned, Hon. Martin J, Crawford was .ap-
pointed to succeed him. He qualified February 9th, 1880.
+ 1 Judge Ckawkoru having resigned to accept a position on the Supreme Court Bench.
Judge Burr wu appointed to succeed him. He qualilied February 9th, t88o, but resigned
in the foUowin){ May, when Judge Wimbkklv was appointed tosucced him. He quaQfiad
May asd, 1880.
NOTE.
By act of 1866 (section 4270 of the Code), the decisions of the
Supreme Court are required to be announced by written synopses of
the points decided. The decisions thus announced from the bench by
Justices Blecicley and Jackson, up to the end of the September term,
1879. are made the head-notes to the cases; the decisions of Chief
Justice Warner are published as his opinions, the head-notes bein)^
made by the reporters. All other head-notes by the reporters are
designated by (R.) Beginning with the February term, 1880, all
head-notes are made by the reporters, the decisions being published as
the opinions of the Justices delivering them.
TABLE OF CASES. "
Ailamfl €t al. vs. Qark 648
Adamson ae/v. Heam 608
Akin w. Peck A Allen f»4:i
Alexander «irf»'. Mayor, etc., of Amer-
icDfi 447
Alien et al. vs. Heyerhardt 337
Almand adv. Hardin, ex*r 5S2
Alnton vs. Wilson 482
Anderson . Starr <feCo. Ofiv. Gerdiu^,
SQiT. ptnr 804
ArmairoDg, adm*r adv. Lewit* stal . . 645
Arnold ei ux. adv. Fuller 5S)9
AtlanU & W. P. R. B. vs. JobnBon ... 447
Atlanta A W. P. R. R. vs. Vlckers 806
Aaltman vs. Wilcox, Gibbs A Co 544
Anabora et al. adv. Boyer 271
AastiD w. S)tate 488
Avera adv. McKiuney, adni'r 450
Aycock, adm'r, ef al, adv. Head et al.. 441
B
Ballard adv. DtiBose, adm'r. 350 I
Bameti adv. (Jollier, BA8*e 484 j
Bates A Co. vs. Fon*yth. adm'r . 232 ;
Eleard vs. Dean .25M ,
Beckman adv. Zellers 747 I
Bennett tf/ int. rs. Walker el al., rum-
miaslonen 3-'6
Black vs. Peteni 65«
board of Comin'rH Webeter County Uf/v.
Hj^on slal 498
Bolden ^^ a/, w. State 301
Bone^ M. Printap Bros. A Co 758
Bontell adv, Powell 446
Boyer vs. Aasbum etal 271
Bracken A Ellsworth vs. Dillon &
Sons 243
Bradley, in rtf !i35
Braasell tv. State 818
Bridges, jailer, et al. adv. State tx ret. . 146
Brfnaon adv. Central R. R 475
Brown adv. Mayor, etc.. Savannah .229
Brown V*. Lathrop & Co. . . . 430
Brown z««. Wylie A Co 48^
Bmmby, truatee, adv, Finney AID
Bryvi a<fv. Smith S6C
Bryce adv, Clark, tnintce
Bahlcr w. State
Bnice vs. Ix>wman Gold and Silver M*nji:
Company
Biirk vx. Btirk
Biirr«% Vo.va. City of Atlanta
c
CaJhonn, ex'r. adv. Felker
C-amp atiu. Simmonn
Candler, ex'r, adv. Lowry's
Carter adv. Gunn el al
Ca»0idy. adm'r, adv. Clark
Calchlngs adv. Kieth
Pcnlral Cotton PrenH Co. adv. Dean,
ex*r.
Central R. R vs. firinson
Central R. R. ve, Kenney
Central R. R. vs. Roarh
Cbamb<*rlin, Boynton A Co., adv. How-
ard
Chamblis}<, g^d'n, ri<2t>. Cleveland^/ a/ .
Champe et al. adv City of Atlanta
Champion vs. Wilson A Co
Cheney H al. adv. Rosier
Christie, sheriff, et al. aUv. Johnson. . .
City Council of Augusta «^ nl. adv. Pic-
quet
City Council of Augusta stiU. tulr. Pic-
qnet
City of Atlanta adv. Burr A Co
City of Atlanta vs. Champe et ul
Clark ativ. Adams et al
Clark, trustee, vs. Bryce
Clark V8. CaMflldy. adm'r
Cleveland et al. vs. Chambliss, gdn
Cogginn vs. (f ris wold
Cohen A Kaplan vs. Duncan & John-
ston
C/olbert vs. Moore, adm'r
Collier, ass'ce. v». Barnes
Colquitt, gov., adr. Walsh etal
Comm'rs Bartow Co. vs. Newell
Conkle adv. Sewell & Co. ,
Connon vs. Dunlap
Coach vs. State
Cox adv. Georgia R. R
486
54)4
76i«
692
225
514
72U
386
651
662
773
670
47ft
100
636
684
352
437
184
564
117
254
516
S25
487
648
486
i;69e
352
323
841
50-2
484
740
699
486
680
488
619
VI
TABLK C)F CASKS.
Cox adv, Hpence etal 6^:'
Cox «< a/, adv. Prater 706
Coxv«.Ktate 874
Cox w. Weems 166
CreoMhaw w. IJtate 449
CroHH r«. Btate 4*^
Cummin^ «f. (U. vft. Trusteei* Roid Mem.
Ch ^^
Carry m. Mayor, cte., of Savannnh . 290
Cnyler H <U. w. Wayne, adm'r 7R
D
Daniel adv. Shannon 448
Daniellyadv. Smith 654
Davis & Co. vs. Mayor, etc., of Macon. 128
Davia ei ftl., comm'r*. «#. Home ... . 69
Dean adv. Beard 258
Dean, ex'r, w. Central CotUm Pre«*« Co. 670
Deaaon fu/v. Elliott 68
DeGive »7*. Seltxer 4<3
DeLoach mt. Hardee'a Son A Co . 94
Dendy vn. Gamble & Copeland 528
Denbam vi. KIrkpatrick 71
Dillon & Sons adr. Bracken A Ells-
worth 248
Dismnke v*. Trammell 428
Donglaas culv, Thompson 57
DuBo8e» adm'r, w. Ball .860
DuGan et (U. v*. McGlaao etal 446
Duncan A Johnston adv. Cohen \ Kap-
lan 341
Danlap a//v. Connon 680
Davall adv. Soutliem SUr L. R. Co. . . ^»l
Dykea v$. State 487
Dyko« w. Stale 488
E
Edmondaon adv, Parrott €t<U ^2
Eldridge adr. Mayor, etc., of Ameri-
cnfl 524
Elliott, ex'r, et al. v». Savannah & Og.
Can. Co 4X7
Elliotvtf. DeaRon . 68
KlliH v$. U. S. Fertilizing ifc Chem. lk>. 571
Englifih adr. Williams 646
Faw /afo. Marietta Paper Mfg. Co 450
Felker va. Calhoan, ex'r, 514
l^lnney w. Brnniby, tniatoe 510
Fisher, rec'r, twr. Peoplc'.s Sav. In.«t 18
Flanegan v«. State 52
Fletcher, ex'r, adv. Hamlin et nl .549
Flonmoy & Kpping €t al. adv. Pitta ... . 681
Ford iv». Kennedy 537
Ponjyth, adm'r, adv. Bates & Co .... 232
Forayth w. Freer, Illgea & Co S81
Foster «t tU. fm. Stapler etal 766
French. Richards A Co. Vf. Kemp. shff. 740
Fuller w. Arnold ft vx 599
G
Gamble & Copeland adv. Dcndv 628
Gaakill r«. State 662
Ga. i& AIn. Steamboat Co. r«. McCart-
ney & Ayers «^ rrf 438
Georgia Land aud CotU)u Co. adv.
Rhett, tmatee 521
Georgia National B'k. adv. Rice 178
Geon^ R. B. «w. Cox 619
Georgia Hoothern K. R. tw. Reeves 492
Gerding surv. p'tner, vir. AnderM>n,Htiirr
A Co 304
Giles, ord'y, iv». Splnka et al 205
Gilham & Brown tw . Wells elal 1 92
Croldsmith adr. Lynch 42
Gordon adv. McCauley etal 221
Gourdins, Tonng it Frost mlv. Wood
ward A Co 490
Greene vs. OHphant A Hannah 5G5
Griffeth f«. State 488
GrifHu Bkg Co. adv. Williami* 178
Griswold adv. C<^(gins 823
Gann adv. Carter et al 651
H
Hall Safe and Lock Co. adr. Harrison
A Co 5r»8
Hamilton adr. Tnmmona 137
Hamlin et al. rt. Fletcher, ex'r 549
Hanson adv. Pounds 6G8
Hardee's Bou Jii Co. ftdv. DeLoach 94
Hardin, ex*r. w. Almand .582
Harris adv. Hnll 309
Harris et al. v$. Pounds 121
Harris, ex'r, adv. Jenkins 440
Harrison dk Co vs. Hall Safe and Ix)ck
Co .VW
Hawks vs. Hawks, ex'x 52-"!i
Head et al. vs. Aycock, adm'r, e.t at 441
Heard et al. adv. Maddox 44S
Hearn vs. Adamson I'lOS
Henderson adv. Sims, ex*r 27H
Henderson vs. Hill 292
Heyman t^. State 4H7
Hill, adm'r, w. Sheibley 529
H\Wadr. Henderson '^92
Hill vs. State A'tA
Holleman rs. Holleinan 437
Hollia e' al. f>. Sanlsbury, Respess &
Co 444
Horn adv. Davia et al.^ commr's o<»
Howard vs. ChamlYcrlin. Boynton &
Co 6H4
Hudi«on et. al vs. Mayor, etc., of Mari-
etta 286
Hnll vs. Harris 309
TABLE OF CA8K8.
VII
Hnnterrrefo. McBridc. adm'r 655
Hua8<>y. pre^'t, udr. McEvoy 314
J
J;ick}<on A Co. rs. RAitiey 811
Jtckson r/t State SM
JamoK adv. Wrighi *;f at 833
Jeiikinftfv. IIarH«, ex'r 440
•Icier adv. William*, adm'x T«7
Johnson Ufiv. Atlanta & W. P. R K.. 447
.Tohn«on ft al. nilr. Lester 2U5
Johnson et al. adv. Walker HKJ
Johni«on v«. Chri!»tie, sheriff, etnl 117
JnhnHon vs. State 442
Joiic» A Norri» ndr. Thomas, trnistce,
€t al 189
Jones, ai»»«'e^, pm. Mobile A G. R. K .. 416
Joiiea et of t«. Smith, gov 711
Jone* IV. Slate 450
Jonen w. SUte 60"
K
Kieth r». Calchings 77S
Korop. »«h*ff, adv. Froncli, RichardK
&Co 749|
Kennedy adv. Kord 537 i
K.-iinedy adv. Central R. R lOu '
Kinard t?*. Sanford tt30
Kirkpatrick itdt. Denham 71
Lattiam M. McUln 330
I^thrt>p & Co. adv. Brown 4hO
Lee t». State 2<>3
Letter w. Johnson eial 295
Lowlfl it at. vs. Armstrong, adm'r 645
Lind#ay w. Lowe OS
Longley A Robinson adr. Star Gla»«
Co *>?«
Ldwe (tdv. Llndmy 488
Lowman Gold and Silver M'n'g Co.
>tdv. Boicc "^fi*
I>jwry* vs. Candler, ex'r 2:<6
Lynch rs. Goldt»milh 42
M
Maddox vs. Heard et al 4*8
Main rs. Western A Atlantic R. R. . . . 64i*
Manhattan Flrr Ins. Co. vs. Tumlln — 431
Marietta Paper M'f'g Co. vs. Faw 450
Mayor, etc., of Americui* rs. Alexan-
der 447
Mayor, etc., of AmerlcaH v*. Eldridge . . 524
Mayor, etc., of Griffin w. Powell 625
Mayor, etc., of Macon ttdv. Davie &
Co 12e
Mayor, etc., of .Marietta adv. Hudt»on
etat 286
Mayor, etc., of Bavannah ofto. Currv. . . 290
Mayor, etc., of Suvnnah vs. Brown 229
McAdam vs. Weikel A Smith Spice
Co 441
McAllister rn. Singer M'f'g Co 6a2
MeBride, adnf r, vs. Hunter . .- 655
McCartney A Ayere et al. adv. (Ja. A
Ala. Steamboat Co 43K
MeCauley el al. iv. Uordon 231
McCown adv. Moore (;i7
McDaniel <w/r. Scott 780
McEvoy IV. Hnnstey, prw't 314
McEwin vs. Springfield Hal 150
McGlaun et id adv. Dugan etal 446
McKinney, adnrr, vs. Avera 4S0
McKinney. adm'r, vs. Wells A Avera.. 450
McLain udv. Latham 2^20
McLeo'l t*8. WillianiBOo 761
McMath tv. Teel, adm'r 5«»5
McMlchael udv. Williams 445
Meadors, ex'r, adv. Willis 721
Meyerhardt adv. Allen et al :><7
Miles A Co. et al. vs. Peabody, adm'r. 729
Mitchell t>. State 4«8
Mitchell vs. St*t«on 44Si
Mitchell vs. Tomlln 868
Mitchell rx. Word, gdn., ttal 208
Mobile AG. K. R. adv. Jonet^, ans ee.. 4iH
Moore, adm'r, adv. Colhert 50«
Moore vs. McCown 617
iluoTiiVs. State 410
Moreland vs. Stephens, shff., c^ a/ 280
MorgMU vs. Twitty etal 426
Morri(<on f«. State 751
Morton, gdn., vs. ^imx 208
Mulligan vs. Perry, adm'r 667
Muoroe el al. vs. Philli|nt, adm'x 82
Myer« adv. Way etal 760
Myrick et al. wtv. Tl».»n 44 i
N
Keal adv. Rhodes et id. , ex'rs 704
Neul ti lU. vs. State 272
Newell adv. Conim'rw Bartow Co 609
NurthwuBtem Mut. L. In.**. Co. vs. Wil-
coxou, adm'r 556
Noyes adv. Sptirks 437
Noy OS vs. Ifciy 2W
• o
O'Connor vs. StAie J25
Oliphuui & llhuuah adv. Greene 566
Oliver vs. State 48(>
Outlaw, Bhff.,«(Yi*. Smith, county treai?, 677
Owen? vs. Wilcox, Glbbi? A Co 60i
P
Parrott et al. vs. Edraondson H32
Pat'hcal & II eidiogsf elder adv. Waxel-
baam A Bro 2To
vm
TABLB OF OASES.
Peabody, adrn'r, adv. Miles & Co. ft al. 72;>
Peck A Allen adv. Akin 64«
Pcople'i^ Sav. lu^t. adv. Fiaher, rec'r . 18
Perry, ailm'r, culv. Mtilltgau .'.67
Pen*oll v». Scott, adm'r 767
Pct4'r(» adv. Black 62S
Shieli* vs. Roberta 370
8fmm<iii.s 7'x. Camp 726
Sims athf. Morton, gdn 298
Sim*, ex*r, -'s. Henderson 278
Singer MTg Co .lYr. McAllister «23
Smith, CO. trcaa'r, ts. Outlaw, «h*ir. . . . i;77
Pliillips, adm'x, adv. Miniroe ft al :V2 Smith, gov'r, atf-'. Joneu 4l al 711
Picquet vs. City Conncll of Aug. i-t nl. 254
Picquet t». City Council of Aug. €i al. 510
PiltH IV. Flournof & Eppini{<»r ^//... . 681
Planters' Bk. of Ft. Valley »>. Prater it
id etw
Pliimb, trnntee, c*. Tucker 4'J7
Pounds €l al. adv. llarrii* fttd 121
Pounds t'A. Hannon 6CS
Powell adv. Mayor, etc., of Griflin fi'25
Powell f *'. Bout«II 44'I
Prater f^ (4^. adv. Planterj*' Bk. of Ft.
Valley 609
Prater t'<f. Co.x €l td 70«» '
Smith vs. Bryan, m^
Smith vs. Danielly .^,14
Smith 7 /. SUte 439
braith vs. State 6 i.s
Smith T'j. Wa le, constable, <•/ rtf lie
South Carolma R. R. rv.People'H Savjru.
In.n m
South Carolina R. B. vs. Williamt* et al. 18
S( nthern Star L. R Co. vs. Duval 26'J
Sonth\\ct«tern R. R. a,lv. Wright, comp
fff", ftal 78S
Spann et al., vs. Board of CommV
Webnt^r Co 498
Freer, lllges & Co. adv. Forny th 281 Sparks 7s. NoyeH 4^7
Printup Bros. & Co. adv. Boiicn 753
Piilchard t». Ward 410
K
Raiuey adv. Jackson & Co. (( nl :;i 1
Raywii' Noys 2S3
Reeves adf. Geor;jia Soui hern R. R V.ri
Rent, in the Matter of, a \\ov\\\ 4.vj '
Rhett, trustee, vi. Georgia Land A: Col-
ton Co.
5^1
Khodet* tt al., ex'rs, vg. tiv^\ 704
Rice 7's. Georgia National Bunk 178
Roach itf/v. Central R. R «:«
Roberta atlv. Shielj* 370
Roberta m/v. Tritt IW
Rotiser vs. Cheney et a^ 564
Rom ft ul.^ adm'rs, vs. Stokeh, adm'r. . 75.H
Sanford ativ. Klnard 030
Saulsbury, Kespei»^ &> Co. ttflv* Hoi I If
etal 444
Savannah and 0%. Canal Co. adv. El-
liott, ex'r, etid 437
Savannah and Og. Canal Co. atlv.
Watta&Bro 8«
Scales 7>s ShacklcfonI 170
Scotield Rol, M. Co. et al. vs. State. ... 437
Scott, a<lm'r, adv. Persoll 767
Scott vs. McDauiel 780
Scott rx. Taylor .'iOd
Seltzer adv. DeGive 423
Sewella^?'. Conklc 438
Shackleford adv. Scales 170
Sliannon %fs, Daniel 448
Shualy, gdn., vs, Toole it al ."ilQ
j>peuco et al. vs. Cox 54:?
Spiuks et al. adv. Otlej«, ord'y »>:»
SpringtUld et (U. adv. McUwen 150
Stapler et at. adv. Fotiler ft al 766
Star Ghiss Co. rs. Lungley A Robin-
son .%7«
StoU* fj: rel. vg. Bridgei", Jailer, etal... 146
State adv. Austin 438
St^ite adr. Bolden et al ,361
State adv. Brnssell 31R
State adv. Buhler .»i04
Slate adv. Couch 4:18
State adv. Cox 375
State adv. C*rcnshaw 449
State adv. Cross 448
State rM/r. DykeK 437
Stale adr. Dykes 438
Stat« ad«\ Flanegan 62
State (K/v. Gaakill 668
StiHeadv. Griffeth 4^8
State ridt*. Heymno 437
State odr. Hill 453
Stats adv. Jackson 344
State adv. Johnson 442
fc*tate adv. Jones 450
State adr. Jones 697
State ada. Lee 203
State adv. Mitchell 448
State (M/r?. Moore 449
State adr. Morrison 751
Mate mtv. Neal etal 272
State adr. O'Connor 125
SUte adr. Oliver 480
State adv. Scoileld Rol. M. Co. et al... 437
State adv. Smith 48»
SUte adv. Smith 605
Sheibly adv. Hill, adm r.
529 ! SUte adv. Watson,
61
TABLE OF GARE8.
IX
^^rcphens, i»h'ff, el al. adv. Morcland. . . 289
>re!-hon orfr. Mitchell ^2
<tokee»,«dafr, adv. EoBHttai., adiw'rs.. 7?»8
i<tok«rK w. Tift 312
•^tory A Bro. ivr. Walker «U
TMvlor adv. i^ott 6Ctf
Joel, •dm'r, adv. McMath 381
rhiot, «/<i/. adr. Wcitman, adni^r eial. 11
Thonuw, tnistee, g( al. t's. Jones A
Vonris 189
1 homp«on tw. Dooglastf 57
Tift ai£z'. Stokei* 812
Twm vs. Myrick et al 443
Tomlin at/v. Mitchell 868
Tifolvctal rt//r. Shaaly, g'd'n 619
Tr&mmell aJ7', Diemako 4'J8
Tritt T*. Robertu 156
Tni!»i*je9 Rcid Mem. Ch. «u/7'. Cum-
miug et al 105
Tucker adt'. Plumb, trustee 497
Tucker ativ, Zimmerman etal 4-t2
Ttimlin ai/v. Manhattan F. ins. Co 4.M
Tummouit vs, Hamilton 187
Twilty el id, atfx>. Morgan 426
u
Vuited StatCH Fcrt. A C. Co. adi'. ZWU. 571
I Ty rx. Usry ei al 179
V
Vickers vs. Atlanta & W. P. It R 30G
w
W«de, constable, el aL atfv. Smith . . .
Wnlsb ft al. rs. Cohjuitt , j^ot
Walker adv. Btory A Bro
Walker et.al»i corom^rs, atfv. Bennett
ft HJt
I
11H
740 !
614
826
Walker ?'s. Johnson e/ al 8«3
Warda^T'. Pritchard 446
WatMn 7's. 8Ute 61
WattJ* & Bro. 7*. Savannah & Og. Ca-
nal To 88
Waxelbaum A Bro. vs. Ptinclml A Held-
ingttfelder 275
Way et (U. r-*. Myers 7fi<)
Wayne» adm>, «»/?«. Cuyler et td 78
Weemii «//t/. Cox 166
Weikel A Smith Spice Co. m/ju Mc-
Adam HI
Weitman, adm'r, et al. vs. Thiot et al.. 11
WelU A. Avera n/lv. McKinney, adni'r 4.Vi
Wells et aL adv. Oilham & Brown 192
Western & At. R R. vs. Main 649
Wilcox, (iibbs & Co. vs. Anltman 544
Wilcox, Gibl)!* & Co. vs. Owens 601
Wilooxon, adnrr, adv. Nortliweslcrn
Mut. L. Ins, Co S-'iH
Williams, wlnrx, rvi. Jeter 737
Williams et fd. adv. Pisher rec'r * 18
Williams «^ «/. rf^7'. S. C. R. R 18
Williamson 7.r. McLeod 761
WilllaiDs vs. English 546
Williams T J. Gnffln B'k'g Co 178
Williams r j. McMichacl 445
Willis vs. Meadors, ex'r 721
Wilson rt//7'. Alston 482
Wilson A Ca adv. Champion 184
Woodward A Co. vs. Gonrdins, Young
& Frost 490
Word, g'd'n, et al. adv. Mitchell i»H
Wright, corop. gen., et al. vs. Souih-
westem R. R T8:i
Wright et al. r's. James 5:«
Wyllc & Co. adv. Brown 485
Z
Zeller?* rut. Bcckmat: 747
Zimmerman <?/ al. re. Tucker 482
>.
CASES ARGUED AND DETERMINED
IN THE
i n
\i\ntm €ontt af {}Htpn,
AT ATLANTA.
SEPTEMBER TERM, 1879.
Present— HIRAM WARNER Chief Justicb.
L. E. BLECKLEY Associate "
JAMES JACKSON
c
Weitman, administrator, et al. vs. Thiot et aL
1. Where a bond and mortgage were executed in 1854: and matured i^/iL^juvuix.
1B55, nod the maker died, and letters of administration issued in 1 ^l ^
1861, and the administrator died in 1864, and the estate was unrepS^^*"^^
resented until 1872, when letters de bonis non were issued: ^
Held, that inasmuch as the statute of limitations was suspended from
1864 to 1808. and the time intervening between the termination of
the first administration and the commencement of the administration
de bonU non is not to be counted until the expiration of five years
more, and nine months and fifteen d lys in addition are to he added
before the bar prescribed by the limitation act of 1869 would attach,
the bond and mortgage were not barred by that act in 1872, when
the letters de bonis non were issued.
3. Administration d« 6o7ii> 7k?n having been granted in 1872 to one of
several trustees for the purpose of securing the payment of the
bond and mortgage, they were not barred whilst he was the sole
administrator, and when he administered the assets and applied
them to the debt due from the intestate to the trustees without un-
reasonable delay.
3. An administrator cannot sell the lands of intestate whilst in the ad-
verse possession of the heirs at law, and actual possession of part
12 SUPREME COURT OF GEORGIA.
Weitraan, admiuistrator, el al. vs. Thiot el al.
of a tract will constructively extcud to the limils described in a.
deed recorded, or of the boundaries of which the adverse party had
knowledge.
4 Where the real issue of Ihe case on trial turned on the question of
such possession in the heirs as against the administrator on a bill
brought by the heirs to set aside the sale of the mortgaged property
for the purpose of paying the debt, and the evidence was conflict-
ing thereon, and the court charged erroneously on other controlling'
points, a new trial should- be granted.
5. Deeds thirty years old, apparently genuine, and coming from the-
proper custody, are admissible without proof of execution or of
proper record.
Statute of limitations. Administrators and executors.
Title. Dends. Evidence. New trial. Before Jud^e
Fleming. Effingham Superior Court. April Term, 1879.
Anna N. Thiot and her children filed their bill against
Weitman, administrator,^^ aZ., alleging, in brief, as follows :
Complainants are the widow and children of Charles II.
Thiot, who resided in Effingham county, was a soldier in
the apiny, and has not been lieard of since the war ; last
hetird from with the army in North Carolina, in 18(55, about
the close of the war. Charles II. Thiot was a brother of
Alex. W. Thiot, who died October 10, 1860. Part of the
real estate owned by Charles H. Thiot at time of his death
was 100 acres, known as the Pierce tract; 200 acres, known
as the Rudesperger tract, and 200 acres known as the
Sweigofer tract. Elbert G. Weitman, without the knowl-
edge or consent of complainants, and without aHual wotxQQ
to them, took out letters of administration ori Alex. W.
Thiot's estate in May 1873, and in July, 1873, obtained an
order from the court of ordinary for the sale of the land of
Alex. W. Thiot, and by virtue of the order, on the first
Tuesday in September, 1873, exposed the lands above de-
scribed as the lands of Alex. W. Thiot, for sale, and the 1
German Lutheran Congregation became the purchaser for
$175.00. Charles Thiot took out letters of administi-ation
on Alex. W. Thiot's estate in 1 800, and complainants be-
lieve fully administered it. Said lands had either been
SEPTEMBEK TERM, 1879. 13
Weitman, adiniuistrttir, et al vx. Thiot *tai.
sold by Alex. W. to Charles IL or vested in Charles II., as
rext of kin to Alex. W., upon his death. There were no
leij^al debts a^^ainst the estate of Alex. W. Thiot in May,
1S73, and hence no necessity of administration or of sale.
Weitman and the German Lntheran Con<jjre^ation confed-
erated together for the purpose of enforcing a debt of the
(lennan Lutheran Congregation against Alex. W. Thiot
barred by the stututes of limitation. Prayer to enjoin the
(rerman Lutheran Congregation from taking posscvssion of
the land under the sale, to revoke the letters of adniinis-
tion to Weitman, to cancel the deed made by Weitman,
and to have the possession of the land given to complain-
ants.
The bill was amended as follows :
The land was owned by Charles II. Thiot, and was in his
possession at his death. It was held adversely to all the
world by Charles H. Thiot and by complainants as hislieirs
at law. Weitman is one of the trustees of the German
Lutheran Congregation, and the administration by him was
to secure Ihe debt against Alex. W. Thiot, although the
debt, which was secured by a mortgage on the land of
Alex. W. Thiot, was barred by the statute of limitation.
Alex. W. Thiot never owned title to more than one-third
of said lands.
The defendants answered, in brief, as follows:
They do not know complainants to be heirs at law of
Charles II. Tliiot. The land was not the property of
Charles H. Thiot, but of Alex. W. Thiot. The estate of
Alex. W. Thiot was not fully administered by Charles
Thiot, but he died before administration was completed,
and, on the suggestion of his death, Elbert G. Weitman
was appointed administrator in his place. In the due course
of administration, and for the purpose of paying tne debts
of. the estate, Weitman, as administrator, applied to the
ordinary for and obtained an order for leave to sell the land,
and sold the same according to law. Defendants believe that
14 SUPREME COURT OF GEORGIA.
Weitman. administrator, et al. v». Thiot e4 at.
complainants had actiicd notice of both the application for
letters and the leave to sell. The German Lutheran Congre-
gation became the purchaser of the land, being the highest
bidder at the sale, Tliere were legal and valid debts against
the estate of Alex. W. Thiot wlien Weitman took out letters^
and when he sold the land. There was no collusion or
confederation to-injure complainants or to subject the estate
to the payment of any unjust claim. That the debt held
by the German Lutheran Congregation against the estate
was a bond and mortgage made by Alex. W. Thiot to secure
the payment of $500.00, money borrowed by him from the
German Lutheran Ccvngregatiofi, the mortgage being upon
the land in question. Charles H. Thiot was security on
the bond. The debt had never been paid. Co<nplainant&
were not in possession of the land at tlie time Weitman
became administrator nor since; nor did Charles IL Thiot
at any time have possession thereof. It was unoccupied at
the time Weitman sold it, althoiigh it was notoriously
known and considered ta be tlie property of the estate of
Alex. W. Thiot. Weitman, as administrator, sold the
same to the German LiUherai> Congregation, and it took
control and had it surveyed.
The evidence was somewhat conflicting, especially on tlie
question of possession by coniplainants. They claimed that
while the lands were known as three distinct places, they
were contiguous to each other so as to« form virtually one
tract, and that they were in possession, actuajly exercising
control over and using a part of the land, and their posses-
sion extending to the boundary of the whole tract. De-
fendants denied such possession in complainants. It ap-
peared that the mortgage and bond were made in 1854, and
the indebtedness matured in 1855 ; that Alexander Thiot
died in 1.^60, and Charles Thiot, father of Charles H. Thiot,.
was appointed his administrator in 1861; that he died \\\
1864: and that the estate was unrepresented until 1872^
when Weitman (who was one of the trustees of the Luthe-
SEPTEMBER TERM, 1879. 15
Weitiaan, adminif^trator. ftal. vg. Thiol et al.
ran Congregation) was appointed administrator de bonis non.
Complainants offered in evidence, in support of their
title, two deeds, one from Polhill et al,^ administrators, to
Charles Thiot, dated November 27, 1819 ; the other from
Tajlor & Davis to Martha Thiot, dated June 12, 1824,
Xeither of these deeds was attested by an official witness,
nor was there any proof of execution. The first had an
entry on it showing that it liad been recorded; the other
did not. Complainants' counsel stated that he had received
these deeds from Mrs. Thiot, one of complainants. De-
fendants objected to them, but they were admitted.
The jury found for complainants. Defendants moved
for a new trial on the following, among other grounds :
(1.) Because the court erred in admitting in evidence the
deed from Taylor & Davis to Martha Thiot.
(2.) Because the court admitted the deed from Polhill
Hi aU^ administrators, to Charles Thiot.
(3.) Because the court charged the jury that if complain-
ants had jx>dse3sion of the land the sale was void.
(4.) Because the court charged the jury that if a party
is in possession of a part of a tract of land they are in pos-
session to the boundaries of the tract.
(5.) Because the court charged that if a claim is barred
l)y the statute of limitations, no recovery can be had
upon it.
The motion was overruled, and defendants excepted,
RuFCS E. Lester, for plaintiffs in error.
J. R. Saussy ; H. B. Tompkins, for defendants.
Jackson, Justice.
The court instructed the jury in this case that the sale by
the administrator de bonis 7io?i was void, because he had ob-
tained the letters and the order to sell fraudulently, in this,
that the debt due to the church was barred when the letters
were granted in 1872 — barred by tlie act of 18t;9. The
I
16 SUPREME COURT OF GEORGIA.
Weirman, aiimnii-mtor. tt -il, m. Thiot «/ al.
l>ond and in<»rtfjaire were executed in 1S54 and matnred iit
1855; the maker died in ISOl and letters were in'anted to
Ins father, who died in l^^i-t; tlienoe to 1872 there was no
adiiiiniritration : henr-e, in the judsTment of the court below,
the bond wa? barred hv the limitation act of 1869. Evon
if it were so barrevj, it would seem that the grant of letters
would have been ^o<m1 if tak<*n out to pay an honest debt :
or, at any rate, that the ordinary had aiijudicated that ques-
tion, and that the letters of administration, not iiavins: been
got by fraudulent or faWe representations of an}' sort, wonld
stand until revoked by the court which granted them.
1. However that niay l>efand it is not necessaiy to decide
it in this case;, were the bond and mortgage given l)y the in-
testate in 1854 and due in 1S55 barred by the act of 1809 (
We think not. The statute of limitations was snspended
in 1^^>8, and only then it could begin again to nin. The
e^t:lte was then unrepresented, and the bar would not attach
until live years more had expired: because the period of
five years is allowed fiom the close of the administration
first granted to the beginning of that de bom's non bv our
statute. Code, ^2v>28. To this^ as there was no administra-
tor to sue on the Ist of January, 1870, nine months and
fifteen days should be added from the expiration of five
years after July, 18»j8. 55 Ga., 85. So that it is very
clear that when administration was granted in 1872 this
debt was not barred, and therefore the court was wrono- in
the cliarge which pronounced it barred. And the creditor
bad a clear right to administer without considering or de-
ciding whether he could have done so to secure a barred
debt.
2. But the sale did not take place until nine months and
tifteen days after tlie grant of administration de bonis nmi
so that it may be asked why was not the debt barred when
the sale took place and the proceeds were applied to the
debt i The answer is, because the administrator could not
sue himself, and inasmuch as iie was one of the trustees
who held the legal title in common with others, the spirit of
SEPTEMBER TERM, 1879. 17
Weitnian, adminiptrntor, et ml. vs. Thiot €t at.
the decision in 57 Ga.^ 668, would apply, and the debt
would not he barred while lie was trying to sell and have it
paid, and not unreasonably delaying the matter. The facts
sliow that he pressed the matter as rapidly as was practica-
ble, and was guilty of no laches. Therefore the bond and
mortgage were not barred in equity when the sale took
place.
3, 4. — It is clear that the lands, if held and possessed by
the heirs adversely, cannot be sold by the administratqr
until he sues and recovers them. Code, §^2564, 2483, 2486 ;
^^ Oa., 43(^
But that is a contested point on the facts, and while the
court charged the law thereon, and that was the real issue
in the case, yet the charge of the bar of the statute and
fraud of the administrator concluded the case for complain-
ants without reference to this issue ; and therefore the case
must be tried over again. The charge in respect to the ex-
tent of possession by construction when the party actually
possesses part, is right, as we uncjprstand it. The law is
that it extends as far as the boundary of the tract described
in the deed, if recorded, or if the boundaries are known to
ti.e contesting party.
5. There was no error in admitting the deeds which were
over thirty years old, they appeared genuine, and came from
the proper custody. Code, §2700.
The judgment is reversed on the ground that the court
erred in the charge in respect to the debt being barred and
fi-aud in the administrator in taking out letters and selling
the land mortgaged to pay it.
Judgment reversed.
18 SUPREME COURT OF GEORGIA.
The Sonth Carolina Railroad Co. v». The Peoples' Saving Iniititution, etc.
The South Carolina Railroad Company vs. The Peo-
ples' Saving Institution.
The Same vs. Williams et al,
Fisher, receiver, vs. The Peoples' Saving Institution.
The Same vs. Williams et al.
1. That a foreign railroad company was allowed by special act of the
legislature to contract With a municipal corporation on the Georgia
line and extend its road into that city, and by the same act was
made liable to suits in the proper courts in this state, did not change
its charter as a foreign corporation so as to prevent an attachment
against it. The remedy provided by the act was merely cumula-
tive.
2. The mere pendency of a bill to foreclose a mortgage on a railroad, and
for the appointment of a receiver in the United States circuit court
of South Carolina, could not affect the operation of the attachment
laws of this state, although some of the plaintiffs in attachment
were parties defendants lyfore any levy was made, and the others
were made so afterwards, the bill not being a general creditors* bill,
but a bill to foreclose a mortgage, and no receiver having been up-
pointed prior to the levies.
8. The fact that an attachment has been levied on that part of a foreign
railroad which extends into this state and its appurtenant properly
here, does not, without more, render the levy illegal.
4. Where attachments have been levied on the property of a foreign
corporation in this state, and afterwards a receiver is appointed for
the corporation in its own state, before he oan plead to or defend
the attachment suits, he must apply to the courts where they are
pending and be made a party.
5. Where, after the levy of attachments on the property of a foreign
corporation in this state, a receiver is appointed in its own state,
and takes possession of all the property, including that levied on.
subject to the disposition of the attachments, it is not a proper
mode of disposing of them for the receiver to petition the court
where tiiey are pending to order the property levied on to be turned
over to him.
Corporations. Rjiilroads. Attachment. Jurisdiction.
Laws. Levy and sale. Receivers. Parties. Practice in
the Superior Court. Before Judge Snead. Richmond
SnT>erior Court. April Term, 1879.
SEPTEMBER TERM, 1879. 19
The South Girollna Railroad Co. w. The Peoples' Saving Institution, etc.
Reported in the decision.
Barnes & Gumming, for plaintiffs in error.
Frank H. Miller, for defendants.
Warner, Chief Justice.
The above stated cases were argued together here upon
the following abstract of facts as contained in the record
thereof :
The Peoples' Saving Institution, a corporation created
under the laws of the state of South Carolina and doing*
business in the city of Charleston, on the 9th day of July,
1878, levied an attachment against the South Carolina Rail-
road Company, as a non-resident corporation, returnable to
October term, 1878, of the superior court of Richmond
county, on two lots of land, situate in said county, on the
track with right to use horse power thereon, extending from
lot first levied on through Washington street, Augusta, to
the Georgia Railroad track, as granted under certain con-
tracts with the city council of Augusta, and others, dated
August 10, 1852, July 31, 1857, and June — , 1869, notice
of the levy being served July 10, 1878, on F. K. Huger, in
possession of property as agent of defendant, at the office
of defendant, and under said attachment caused process of
garnishment to be served July 9, 1878, on the Georgia
Railroad and Banking Company, and on the Charlotte,
Columbia and Augusta Railroad Company, and on July
10th on F. K. Huger, individually, and as agent at Augusta
of the South Carolina Railroad Company, on July 16th on
the Southern Express Company, and July 17, 1878, upon
Wellington Stevenson. On the 21st of October it tiled its
declaration on said attachment, alleging, among other things,
that said South Carolina Railroad Conipany was indebted
to plaintiff $6,486.94, with interest Irom June 14, 1878, on
a judgment obtained in the court of common pleas of the
county of Charleston, South Carolina. The above men-
20 SUPREME COURT OF GEORGIA.
The South Carolina Railroad Co. vs. The Peoples' Saving loiistitutiOD, etc.
tioned contracts are fullj set forth in the bills of excep-
tions.
The Georgia Railroad Company and the Charlotte, Co-
lumbia and Augusta Railroad Company answered, den^^ing
any indebtedness. Their answers were traversed and ex-
ception taken to the latter. F. K, Huger answered, deny-
ing any indebtedness individually, and as agent stating dis-
position of effects in accordance .with the orders of his
superior officers. To this answer plaintiff filed a traverse
and exceptions. The Southern Express Company answered,
admitting an indebtedness of $1,108.72, and Wellington
Stevenson an indebtedness of $30.00.
On the 25th of July, 1878, George W. Williams and
others, all residents of Charleston, South Carolina, levied
an attachment against the South Carolina Railroad Com-
pany, returnable to October term, 1878, of the superior
court of Richmond county, upon the same property men-
tioned as the subject matter of levy in the first attachment;
also on the bridge across the Savannah river, with the abut-
ments, piers and privileges thereof. Notice of this levy
was served upon Frank K. Huger, in possession of the
property as agent of defendant, at the office of the defend-
ant, July 25, 1878. On the 21st of October, 1878, they
filed their declaration on said attachment, alleging, among
other things, an indebtedness to plaintiffs of $43,065.21,
besides interest.
An order w'as taken during the term allowing defendant
further time to file pleas to both of the aforementioned
eases, which, in pursuance of the order, were filed on the
28th of February, 1879, being sworn to by John H. Fisher,
receiver of the. South Carolina Railroad Company.
The material facts as set forth in the pleas are, that Cyrus
Gatewood et al. filed on the 5th day of July, 1878, a bill
in the United States circuit court for the district of South
Carolina against the South Carolina Railroad Companj^, and
other defendants, among whom were the plaintiffs in the
second above named attachments, for the foreclosure of a
SEPTEMBER TERM, 1879. 21
The South Carolina Kaiiroad Co. fv. The Peoples' Saying lustilution, etc.
mort^afi^e, usual Iv known as the second uiort^ajj^e of the
Soutli Caroh'na Raih-oad Company, and the appointment of
a receiver. On the same day the court issued its order,
which was served on the same day on the Soutli Carolina
Kaiiroad Company and the plaintiffs named in the second
of the foregoing mentioned attachments, enjoining the de-
livery of any property of said company, save to a receiver
to he appointed by the court. On the 2()th of July, 1878,
the complainants in said bill amended the same, making the
Peoples' Saving Institution a party defendant to said bill,
and on said 2()th of July the said Institution was served
with a copy of same, and said Institution hassince appeared
and answered. On the 19th of September, 1878, the said
United States circuit court for the district of Soutii Caro-
lina, appointed John II. Fisher receiver, with directions to
defend all existing actions aajainst the South Carolina Rail-
road Company, and all that might thereafter be brought
against the company or himself.
• The order appointed him receiver of the entire property
embraced in the trust deed (the mortgage) set forth in com-
plainants' bill, and this embraced all the property described
in the levies of the attachments, and also of all the earn-
ings and income of or from said property, whether the
same mAy have accrued before or since the 5th day of July,
1878.
On the 31st of July, 1878, the complainants in said bill
filed their auxiliary bill in the United States circuit -court
for the southern district of Georgia, and on the 10th day of
December, 1878, the said circuit court for the southern dis-
trict of Georgia passed an order appointing the said John
H. Fisher receiver of all property embraced in the trust
deed (a mortgage) mentioned in complainants' bill, as is in
the state of Georgia, and of all the earnings or income of
or from said property, whether the same may have accrued
before or since the 5th day of July, 1878, and with all the
powers, privileges, rights, liabilities and duties imposed
upon said receiver by the circuit court of the United States
for the district of South Carolina.
22 SUPREME COURT OF GEORGIA.
The S^mth CkroliaA RtMroad Co. 09. The Peopl>M' Sivin; InstitaCioa, etc.
It is declared to be the intent and meaning of this order
to confirnri and adopt the order of the appointment of the
United States con rt for the district of South Carolina, so fir
afi the circait coart for Georgia has jurisdiction in the
premises.
The receiver is also directed to make a report of his act-
ing and doings under the Georgia confirmatory order to
the United States court for South Carolina.
The mortgage for the foreclosure of which the bill was
filed, was a second mortgage of the South Carolina Railroad
Company, dated 1st day of October, 1872. It conveyed to
the trustees therein named the entire property of said com-
pany, whether in Geor:^ia or South Carolina, for the pur-
pose of securing the mortgage bondholders, subject to the
lien of the first mortgage of said company, bearing date
the first day of July, 18<>8. These appear as set forth in
the amended bill, made a part of the bills of exceptions in
these cases. All of the bonds provided for by said mort-
gages or deeds of trust have been issued and are now out-
standing.
The attachment of the Peoples' Savings Institution was
based on a judgment obtained by said Institution in the
court of common pleas for the county of Charleston and
state of South Carolina, on the 14rth day of June, ls78,(8ee
declaration in attachment) for $6,485.94:. This judgment
was a balance due on a note dated October 6, 1877, (long
subsequent to the execution of the second mortgage) pay-
able January 7, 1878, for $14,000. Said note was secured
by a pledge of 56 second mortgage bonds, each bearing
plainly printed on its face and indorsed on its back, "sec-
ond mortgage bonds of the South Carolina Railroad Com-
pany." They were received as security for said note, with
full knowledge that they were bonds secured by a second
mortgage of its property. At maturity of note, said bonds
so pledged were sold, and were accounted for to defendant
in a statement of the sale as second mortgage bonds. The
suit in which the judgment was rendered was for the bal-
SEPTEMBER TERM, 1879. 23
The 8oath Carolina Bailroad Co. vg. The Peoples* Saving Institution, etc.
ance of said note, after crediting proceeds of the sale of
Baid bonds.
The attachment in the case of George W. WiUiains et al.
was based on an alleged indebtedness of defendant to plain-
tiffs for S43,0G5.2l, evidenced by certain promissory notes —
one dated May 12, 1877, due January h 1878, for $20,000 ;
a second dated October 9, 1877, and payable on demand,
for $19,000, and a third dated February 13, 1878, payable
on demand, for $9,000. A second count of said declara-
tion is based on an account composed of three items, dated,
respectively, October 9, 18*7, January 11, 1878, and Febru-
ary 13, 1878. This indebtedness was contracted long subse-
quent to the execution of either of the mortgages. The first
of said not'^.s recites that there is deposited with the holder
as collateral security nine of the sterling bonds of said com-
pany (being the first mortgage bonds) and twenty -two of the
second mortgage bonds. The second recites a like deposit
of thirteen fiist mortgage bonds and sixty-two second
mortgage bonds. The third, a like deposit of sixty-six
second mortgage bonds. They thus acquired actual know-
ledge of the first and second mortgages at the time of the
creation of their debt.
The plaintiffs in both cases are all residents of South Car-
olina. The Peoples' Savings Institution was made a party
defendant to the bill early after the levy of its attach-
ment. George W. Williams and his co-plaintiffs were par-
ties defendant before the levy of their attachment.
In the case of George W. Williams et aL, all the plain-
tiffs named were members of the board of directors of the
South Carolina Railroad Company at the time of the execu-
tion of both of the mortgages, and one of said plaintiffs,
Henry Gourdin, was one of the trustees named in the first
mortgage, and they all voted for the resolution directing
the creation of said mortgages, and under and by virtue of
which said mortgages were created and executed.
Said mortgages were properly recorded in the state of
South Carolina, but had not been properly placed on the
24 SUPKEME COURT OF GEORGIA.
The South Carolina llailroad Co. vs. The Peoples' Saving Institution, etc.
records in the county of Richmond, and state of Georgia,
at the time said attacliments were levied. They had been
entered in the book of records but had been probated be-
fore a notary public of South Carolina, and had not been
probated before any duly authorized otiicer of the state of
Georgia. Such record, it is admitted, was defective.
It is admitted that since the date of the levy of the
attachments, said mortgages have been properly probated
before a Georgia commissioner, resident in South Carolina,
and properlj'^ entered of record.
The pleas based on these facts were first to the jurisdic-
tion of the court in both cases. The second plea in the
case of the Peoples' Saving Institution concluded with a
prayer, that inasmuch as said Institution had positive know-
ledge of the mortgages, any lien obtained by the attach-
ment, or the judgment rendered thereon, should be post-
poned to said mortgages. In the case of George W. Wil-
liams and others, there were five pleas besides the plea to
the jurisdiction, the first, praying that inasmuch as collater-
als in the hands of plaintiffs are not 'exhausted, suit should
be dismissed ; the second, that an account should be taken
of the value of these collaterals, and judgment allowed
only for excess of the amount of the claim over and above
such value ; third, that inasmuch as plaintiffs had actual
knowledge of the mortgages, the lien of their judgment
should be made posterior to the mortgage liens ; the fourth
alleges that it was duty of plaintiffs, as directors of the South
Carolina Railroad Company, to see to proper probate and
record of the mortgages, that their failure to do so was a
breach of duty on their part, and that as a consequence any
lien which they might acquire should be posterior to the
lien of the mortgages ; and fifth, that inasmuch as said
plaintiffs participated as directors in the execution of said
mortgages, the lien of the mortgages should be made supe-
rior to any lien either under said attachment, or any judg-
ment based thereon. All the pleas were sworn to by John
H. Fisher, receiver of South Carolina Itailroad Company,
SEPTEMBER TERM, 1879. 25
The South Carolina Railroad Co. vs. The Peoples' Savins: Institution, etc.
on March 4, 1879. To these pleas plaintiffs in both cases
filed a demurrer, accompanied with a motion to dismiss the
same, and at the same time served defendant with notice to
produce, on the hearing, a copy of each and every legal or
equitable proceeding set forth in the pleas and of the deeds
of mortgage referred to therein, with prol)ate6 thereof in
South Carolina and Georgia.
The grounds of demurrer were :
First. That the pleas were not properly verified.
Second. That they set forth no legal defense to plain-
tiffs' action.
Third. That the defendant, as a foreign corporation, can-
not, as to liabilities incurred in South Carolina, be sued in
jjersanam in Georgia, and the proceedings in Georgia by at-
tachment cannot be set aside or affected by any proceed-
ings against the corporation in South Carolina.
Fourth. That the proceedings in the United States courts
in South Carolina and Georgia were void as to proceedings
in the state courts of Georgia, especially when the attachment
in the first case was levied before the party plaintiff therein
was made a party defendant in the proceedings in the
United States courts.
Fifth. Because the levy of the attachment gives juris-
diction at its date, not the date of the suit or the appoint-
ment of a receiver.
Sixth. Because the couiity of tliis etate recognizes no
rule of pleading, which it would violate the statute law of
Georgia to enforce.
On Saturday, the 12th of April, argument was had
thereon. In compliance with the notice tliere was pro-
duced at the hearing, and the same were referred to in ar-
gument, and are now embraced in the bills of exceptions,
the mortgages of the South Carolina Railroad Company re-
ferred to in the pleas ; a certified copy of the order of the
circuit court of the United States for South Carolina,
passed SepteiiJier 19th, 1878, appointing John H. Fisher,
Esq., receiver of the entire property embraced in the
26 SUPREME COURT OF GEORGIA.
The Soath Carolina EUflroad Co. vs. The PeoplPA' Saving Instltation, etc.
second of said mortgages ; copy of an order of Judge
Woods, of the fifth circuit court of the United States for
the southern district of Georgia, in a bill auxiliary to the
bill in which the preceding order was passed ; a copy of an
order by Judge Erskine, December 9th, 1878, and a further
order of Judge Woods, December 10th, 1878 ; also the con-
tracts between the South Carolina Railroad Company and
the City Council of Augusta, dated August 10th, 1852,
July 13th, 1857, and June — ,1869, referred to in the levies
of the attachments, made a part of the brief of evidence,
and embraced in the bills of exceptions. The statutes of
Georgia and South Carolina relative to said South Carolina
Railroad were also, by consent, made a part of the record in
said case, having been referred to by counsel in the course
of argument. Both sides announced that they would tile
with the couft written briefs of argument. The counsel
for defendant filed with their brief a motion, of which due
notice was given to counsel for plaintiffs, to dismiss said at-
tachments on the ground that an attachment would not lie
against the South Carolina Railroad Company, said com-
pany having been made expressly suable in the county of
the state in which its road terminates, by section vii of
the act of the legislature of Georgia of February 18th,
1854:, to charter the Charleston and Savannah Railroad.
As thus presented, the cases were submitted to the court,
and afterwards, to- wit : the 21st of April, 1879, being the
first day of the April term, 1879, the demurrer was sus-
tained and the pleas were ordered stricken, and the court
held that the receiver was acting ultra vires, and was not
properly in court.
On the 24th of April, 1879, and during said term of the
court, John H. Fisher, receiver of the South Carolina Rail-
road Company, presented a petition to the superior court of
said county, in both of said cases, praying, wliile protesting
that the seizure by the sheriff under the aforesaid attach-
ments was illegal, that his possession should be removed,
and that he, the petitioner, should have the same possession,
SEPTEMBER TERM, 1879. 27
TheSoutb CaroHn i Railroad Co. vs. The Peoples' having Institatlon, etc.
actual and constructive, which the South Carolina Railroad
Company liad before the levy of the eaid attachments,
which petition was refused by his honor, Judge Snead, on
the 25th of April, 1879.
On the same day Judge Snead awarded judgment in
both cases, to be enforced by execution against the lots of
land levied on under the attachments, also on the track
with right to use horse power thereoii, extending through
Washington street to the Georgia Railroad track, as granted
under the contracts with the city council of Augusta ; also,
against all the rights and privileges that properly appertain
to the South Carolina Railroad, as an instrument of trans-
portation, as well as the right of way and superstructure,
and all other rights which passed to the South Carolina
Railroad under contracts with the city council of Augusta,
and others, as far as described in the levy of attachjneats.
It was provided in the case of the Peoples' Saving Institu-
tion, bnt which was omitted in the case of George W". Wil-
liams et al,, that said judgment was to be enforced against
the money and choses in action in the hands of the South-
ern Express Company and Wellington Stevenson, gar-
nishees, and also against whatever may be hereafter found
in the hands of other garnishees. The judgment in the
case of George W. Williams et al., also provided that it
should be enforced by execution on the bridge across t?TB
Savannah river, with the abutments, piers and privileges
thereof.
The exceptions are that the court erred in the case of the
Peoples' Saving Institution :
First. In not dismissing the attachment under section 7
of the act of the legislature, February 18th, 1854.
Second. In sustaining the demurrer.
Third. In striking the pleas of defendant.
Fourth. In holding that the receiver was acting ultra
vires.
Fifth. In striking the plea to the jurisdiction of the
court.
2
28 SUPREME COURT OF GEORGIA.
The South CaroiiDa Railroad Co. vs. The Peoples' Savmg lustitation, etc.
Sixth. In Striking the second plea.
Seventh. In striking the plea prajing that the vprdict
and judgment should be so moulded that the lien should be
posterior to the mortgage lien.
Eighth. In refusing petition of John H. Fisher, receiver,
for possession of attached property.
Ninth. In passing the order refusing such possession.
Tenth. In rendering the judgment on said attachmentr
Eleventh. In rendering judgment to be enforced against
the property levied on under the attachment.
Twelfth. In rendering judgment to be enforced by exe-
cution on the track and right to use horse power extending
througli Washington street, Augusta, said right not being
subject to levy and sale under attachment.
Thirteenth. In rendering judgujent against all the rights
and privileges that properly appertain to the South Carolina
Kailroad as an instrument of transportation, as well as the
right of way and superstructure, and all other rights which
passed to said road under contracts with the city council
of Augusta, as described in the levy of the attachment.
Fourteenth. In rendering judg'.nent to l>e.enforced against
all the rights and privileges that properly appertain to the
South Carolina Railroad as an instrument of transportation
as well as the right of way and superstructure, said rights
and privileges not being subject to levy and sale under
attachment.
Fifteenth. In rendering judgment co be enforced against
the preceding and all other rights which passed to the South
Carolina Railroad under contracts with the city council of
Augusta, as far as described in the levy of attachment, such
other rights not being subject to levy and sale under attach-
ment.
Sixteenth. In not making the lien of said judgment
posterior to the lien of the mortgages.
Seventeenth. In providing in said judgment for enforcing
same against money and choses in action in the hands of
the Southern Express Company and W. Stevenson, gar-
nishees.
SEPTEMBER TERM, 1879. 2&
The Sooth CarolmA Railroad Co. va. The Peoples' Saving; Iu8titutioii« etc.
Eighteeuth. In providing in said judgment for enforcing
same against any eifects thereafter to be found in the hands
of other garnishees.
Nineteenth. In providing in said judgment for enforcing
same against money or property thereafter found in the
hands of F. K. Huger, individually.
Twentieth. In providing for enforcing same against same
thereafter found in his hands as agent, in Georgia, of de-
fendant.
Twenty-tirst. In passing order requiring Southern Ex-
press Company, as garnishee, to pay. to plaintiff on said
judgment the sum of $1,108.72.
In the case of George W. Williams et aL^ the exceptions
are the same as in the case of the Peoples' Saving Institu-
tion, saving the 7th, 8th, 10th and 12th, which complain of
error in strikfng the 4th, 5th and 6th pleas of defendant ;
and the 9th, 11th and 13th, which complain of the court in
not providing, in rendition of judgment, that the lien of
attachment and judgment thereon should be posterior to
the mortgage lien, on the grounds set forth in the 4:th, 5th
and 6th pleas respectively. The 22d exception assigns as
error rendering judgment to be enforced against the bridge
across the Savannah river, with the abutments, piers and
privileges thereof, and the 23d complains of the same judg
ment on same ground, and on the further ground that said
privileges are not subject to levy and sale under attachment.
Besides the foregoing bills of exceptions, John II. Fisher,
as receiver ot the South Carolina Railroad Company, filed
two bills of exceptions, one in the case of the Peoples'
Saving Institution and one in the case of George W. Wil-
liams et at. They both complain of the decision of the
judge of the superior court in refusing his petition for pos-
session of the road, and in passing the order denying him
such possession.
The exceptions taken to the rulings of the c«jurt below
are attenuated and specific, but may be embraced in the fol-
lowing objections as insisted on here by the plaintiffs in
-V» SUPREME COrRT OF GEORGIA-
T "»* ftnti C»r.i-=a lLi.~.;rwi •'♦ r» Tiit ?^ c»e»' ■%% jg Is(<irx »-. etc.
err»>r a* :Ije miio <s>n:n//.:LsZ0ii€5=^ti>'» rrLiitr bv t:i^ record :
ij tL'a state t*<-aii5e iiitr «itfer. :*:.: e-*::".! h^ve been sued
here ^-v the oniir-irr pn.-.'v!?^ of Iat. S^»n.i, rh^t ::ie coarts
of tLL* ^t^re L^d no i'ir:^iiet:«»o to onier tlxe strizare of
•iefenoint'* p!ot>ertT ia tliis ^tate br a:ii«*:*:iitra: after the
ft ^ « m
£-:l^ of 'Le b:'/. in ei^^rj a^i:n>: it ia the Ui.irtni States
efre^it c*»?;rt of S-'Otb CArt*!:^!, as set f"»r:h in tise record.
TLir'i, t^At the lew o: the attaohuieats G»a tl*e defend-
ant's r.n»:?ertT ia iLis «-tate was :'Ie^a!, tlie same l«^iri2 onlv
a I'An of its entire rtiVxid, Foirth, thir F:-ht:r, the re-
cti^er of the Unitt^tl States circuit c».*nrt sa'-»ali have been
allvwei Vj have drferide»i trie attaehiiietit suits hr DliQ«; the
»e«"era: p!tas set forrh in tr.e rect.oi- Pitth. ihit the conrt
frh«'»--d hare sranrcd t:je petiti«»Q of Fisher, the leceiver, to
take p-:t»es?^:' Ml of ilie property of the dtrfcaiant -in this
state Itrri^ oa br the attaohioentSw
1. As to the drst <n\Maad of ci>:n plaints the S-:>ath Car-
o'ira Riiln.^id Comtvinv is a fore:,:ri o»>n»ratioa, and its
FE^idtrf.ce is in that state* and bv the laws of this state,
attach Tj^nts niaj he is^utrd when the dtfl<or res^i les out of
the state, at^d a^rainst foreLn* o»-»rm>rationi C>ie, $^32G4,
3^1. Bt the 7ih cectioa of the act of 1>54, the Soath
Carol:r.a Railroad Com pan j, bj an arran^nitfnt with the
eitj ei'^Kucil of Anirnsta* was allowed to extend its road into
aid citT. and w^^s made liable to be sued by persons having
eUiics a^nst it in the pn.^per conrts of the counties and
extiesof this state, bat that did not tuake it anv the less a
fc»rei£m oiH'poration, and liable to be proceeded agaiDst
by attach Jitrit, as provideed by the general laws of the
state — the provision that it miiTit be sued in the conrts of
this state was merely a cnninlative remedy t\>r the better
prc^tection of our own people, bat did not alter or rvpeal the
l^neral attachment laws of the state, nor any part thereof.
i. As to the second srround of complaint, the bill in
equity filed in the circuit court of the Tniie^l States in
South Can..Mna, was not a general crvditors' WH, but a bill
SEPTEMBER TERM, 1879. 31
The Sonth CaroIinA Bailroad Co. vt. The Peoples' Saving Institution, etc.
to foi"eclo8e a certain mortgage made by the South Carolina
Railroad Company. No receiver had been appointed by
that conrt when the attachments were levied apon the de-
fendant's property in this state, and the mere pendency of
that suit could not interfere with the execution of the attach-
ment laws of this state within the jurisdictional limits
thereof.
3. As to the third ground, it does not appear that the
general assembly has ever granted any franchises, privileges
or immunities to the South Carolina Railroad Company in
this state which would prevent a levy and sale of its prop-
erty found here under legal process. All the rights and
privileges which have been granted to it in this state, that
we have been able to discover, is to extend its road into the
city of Augusta, by an arrangement or contract made with
the council of that city, and therefore the illegality of levy-
ing the attachments on the defendant's property in this
state is not apparent to us. Perhaps a court of equity, on
a proper case being made, would restrain the sale of that
part of the defendant's road which is in this state, under
the attachment judgments, and decree that the entire road
of the defendant should be sold; but that is not now the
question here. The question here is as to the right of the
plaintiffs in attachment to obtain judgments thereon in this
state.
4. In relation to the fourth ground, the preliminary step
of Fisher, the receiver of the United States circuit court,
should have been to have made application to the court
below to be made a party to the suits against the defendant
for the purpose of defending the same, if he desired to do
so. This not having been done, there was no error in the
court's striking the pleas tiled by him.
5. As to the fifth ground, it appears that the receiver
was already in possession of the property, and as the only
object appears to have been to get rid of the attachments
levied thereon, the petition of the receiver was properly
refused by the court
9
2 SUPREME COURT OF GEORGIA.
Monroe et al. vt. Phillips, admmistratrix.
We therefore affirm the judgment of the court below in
all the cases, with directions that the judgments rendered
in the attachment cases shall not be enfoi-ced by a sale of
tlie property levied on, until a reasonable time shall have
elapsed for the final disposition of the injunction granted
by decree of the circuit court of the United States.
Let the judgment of the court below in all the cases be
affirmed with directions as herein indicated.
Judgment affirmed with directions.
MuNROE et al. vs. Phillips, administratrix.
Wakkkb, Chief Justice, being engaged ir presidiog over the senate oi^ganised as a
coart of impeachment, did not sit in thiiii case.] *
1. In 1868, no ordinary had power to dismiss from his trust a guardian
of free persons of color, appointed as such prior to the abolition of
Blaver}', and appoint a successor in such guardianship. An order of
dismission based on the appointment of a successor, and on an ac-
counting with him insl&id of with the wards, is void if no citation
or other notice to the wards, nor any election by them, is made to
appear by recitals in the order, or otherwise. After the status of free
persons of color became changed both civilly and politically, a
guardian of that class of persons was placet! in new relations, ana
his holding of the property of his wards was thenceforth more in
the nature of a general trust Nevertheless, the ordinary had and
has jurisdiction of returns relating to his management. Sucb
returns are not conclusive upon him in all respects, but are open to
explanation.
2 During the existence of slavery, there was no law or public policy
against the ownership of personal property by free persons of color,
and no law for any slave to have a guardian. The appolntmeni
of a white man as guardian for certain negroes, and his acting io
such capacity, involved their freedom as a foregone conclusion. If
they were dc facto free in *' slavery times." and he made returns to
the ordinary in 1808, reaching back to 1854, in which he debited and
crediteti them as his wards, It need not further appear whether they
were free tie jure or not, in order to hold him to account lawfully
for a fund which he received for their benefit in 1854, and to the
management of which, as their guardian, his said returns relate.
He stands committed to their having acquired freedom by some law-
ful means, and to their ownership of the fund.
SEPTEMBER TERM, 1879. 33
Munroe«^ al, is. Phillips, odmiuletratriz.
3. The burden of proving that the fnnd was converted into Confederate
bonds in a legal way, is upon the guardian, or his representative.
4. When the plaintiffs have introduced in evidence one o' several re-
turns to the ordinary, made at the same time and sworn to in one
and the same affidavit, the defendant may introduce the rest of tlie
series, and the whole may be considered by the jury as one entire
document. They are, however, not bound to give equal credit to
all (he several parts.
5. As to the effect of infancy in reply to the limitation act of 1869, see
Jordan V6. Ticknor, 63 Ga., 128; Windsor vs. Bell, 61 lb., 671.
Gnardian and ward. Free persons of color. Slave.
Statute of limitations. Evidence. Before Judge Craw-
ford. Muscogee Superior Court. November Adjourned
Term, 1878.
Reported in the opinion.
Blai^dford & Garrard; Thornton & Grimes, for plain-
tiffs in error.
Peabody & Brannon; James Ru^skll, for defendant.
Bleckley, Justice.
On the 23d of April, 1878, three sisters — Victoria Mun-
roe, Maria Gray and Missouri Overton —brought assumpsit
against Laura Phillips as administratrix of Pleasant J. Phil-
lips, deceased, in Muscogee superior court. The declara-
tion alleged that the defendant's intestate, as guardian of
the plaintiffs, received from Henry Lowe, their reputed
father, the sum of $i,268-76, on the first of January, 1854:,
to and for the use of the plaintiffs ; that he undertook and
promised to pay the plaintiffs said sura when requested ;
that neither he, while in life, nor his ad.ninistratrix, since
his death, has paid the same, etc. The defendant pleaded,
first, non-assumpsit ; second, that at the March term, I8t58,
of the court of ordinary of Mu^cogee county, which court
had jurisdiction of the trust, the intestate was by the judg-
ment of that court discharged from his trust as guardian
34 SUPREME COURT OF GEORGIA.
MuDroe H al. vb. Phill ps, adkniniFtratrix.
of the plaintiffs, and then delivered all property and paid
all money held by him as such guardian, upon a fair settle-
ment of his accounts, to Philip Munroe, his successor in
the guardianship, filing in the oflSce of the ordinary the re-
ceipt of the said successor in full ; and that naore than live
years had elapsed after each of the plaintiffs became of age
before their action was comuie need; third, that nvore than ten
years had elapsed befoi*e the suit, after tliso riglit af action^
if any, had accrued ; and, fourth, tl>at more than four years
h^d elapsed before the suit, after the right of action, if any,,
had accrued.
The case was tried, and the jury found far the defendant.
The plaintiffs, not movingfor a new trial, sued out a writ of
error on the ruh'ngs and charge of the court, and its refusal
to charge. The evidence at the trial disclosed the follow-
ing state of facts : Tl>e plaintiffs were the negro slaves of
Henry Lowe,, and tliey, together with tlieir brother, Polkt
were his reputed children by Sophy Lowe, a woman of
color (his own slave); that in the year 185i, the defendant's
intestate received from Henry Lowe $14,000.00 for Sophy
and her four children^ of which sum $1000.00 each was for
her and the three girls, and $10,000.00 for Polk, the son ;
that this fund was not turned over by Lowe to the intestate
by deed, will (m* other writing, but it was in divers notes ot>
good and solvent persons, and the notes were delivered in
the presence of a witness ; that Lowe had previously made
a will providing for Sopliy and her children, but being ad-
vised that it was not lawful to bequeath property to- slaves^
he gave the fund into the liand of the intestate in the man-
ner above stated ; that all this occurred in Georgia, where
all the parties resided; that Lowe died in July, 1854, and
not long thereafter, perhaps in 1855 or 1856, the intestate
sent Sophy and the plaintiffs to Washington, D. C, and Polk
to Pittsburg, Pa., or they went at his instance, he paying
their expenses ; that the purpose was for Sophy to reside in
Washington and educate her children, but she soon concluded
to return to Georgia, and did return in two or three weeks.
SEPTEMBER TERM, 1879. 35
Munroe et al. rs Phillipe, administratrix.
bringing the plaintifFs back with her ; that after their return
they staid in Harris county about three weeks, and the
intestate then removed thera to Cohimbus, in Muscogee
county. The plaintiffs introduced in evidence a certificate of
the clerk of the inferior court of Muscogee county, under
the seal of said court, dated May 6, 1856, describing Sophy
as a free person of color residing in that county, reciting
that advertisement had been made, and certifying that she
was duly registered as a free person of color, and certifying
also that the intestate was then her guardian. They like-
wise introduced the records of the court of ordinary of
Muscogee county, containing all the returns of the intestate
as guardian of the plaintiffs and thdir mother. The returns
were all made and sworn to at the same time, one and the
same affidavit verifying the whole series, and it was dated
March 2, 1868. The plaintiffs read as their evidence only
the returns for the first two years, the years 1855 and 1856,
the former showing a balance against the guardian of
$4-,148.19, and the latter of $3,913.45. The defendant read
the other returns, and, over the objections of plaintiffs,
read from the same records an order, or orders, passed by
the ordinary at the March term, 1868, discharging the in-
testate from the guardianship of the plaintiffs, and appoint-
ing Philip Munroe in his place. It appeared that there was
a full settlement and a receipt in full between the outgoing
and incoming guardian ; that the former turned over to the
latter, as the assets, certain Confederate bonds and treasury
notes, and gave him $50.00 in money for each of the plain-
tiffs. The new guardian was the husband of Victoria, one
of the plaintiffs. Not long after this transaction, Munroe
and wife and the other two plaintiffs all emigrated to LU
beria, the intestate advising the two girls to go with their
sister and her husband. The two never returned, but mar-
ried in Liberia, and are there still. Munroe and wife came
back to Georgia about 1871 or 1872, and Munroe died a
year or two thereafter. As to the ages of the plaintiffs, it
appeared that Victoria arrived at majority in 1863, and
30 SUPREME COURT OF GEORGIA..
Manroe et al. vs. Phillips, administratrix.
married Munroe some time during the late war; the elder
of the other two plaintiffs attained her majority in 1871,
and the younger in 1872. Sophy, the mother, died in
1864. The intestate, Phillips, died October 12, 1876, and
letters of administration were issued to the defendant at
March term, 1877. There was evidence introduced by de-
fendant showing that Confederate money was collected dar-
ing the war on paper payable to the intestate as guardian,
and that he funded in Confederate bonds. No order to
fund, such as the statutes passed during the war required,
was produced. The judgment of the ordinary discharging
the intestate from the guardianship, and appointing Munroe
to succeed him, did not recite any citation or other notice
to the next of kin or to the wards, nor any election by them ;
nor did any such citation, notice or election appear by other
testimony.
The several propositions excepted to in the charge of the
court were in substance as follows: 1. That a guardian is
not estopped by his returns. 2. That if the plaintiffs were
slaves in 1854^, and if the fund claimed was at that time
tamed over to Phillips for their use and benefit, as part of
a scheme for their emancipation, and for their support
afterwards in Georgia, the gift was void, and plaintiffs can-
not recover. 8. If the settlement was without fraud it was
final, save that it was subject to be opened by the minor
wards within five years after they arrived at majority. 4.
That the limitation of ten years does not apply. 5, That
if the guardian received Confederate money when he re-
ceived it for himself, and when other prudent creditors
received it, and if he afterwards invested it in Confederate
bonds, in good faith and as the best that could be done at
the time, then he would not l)e liable; and more especially,
if without fraud he turned them over to Munroe who
received them in satisfaction. One of the exceptions is to
the refusal of the court to charge, at the plaintiffs' request
as follows: "If Lowe placed money in Phillips' hands
when the plaintiffs were slaves, for their benefit, and if the
SEPTEMBER TERM, 1879. 37
Mauroe ei al. vs. Phillips, administratrix.
plaintiffs afterwards became free, and Phillips, after tlieir
freedom, made returns to the court of ordinary whereby he
admitted that he had money in his hands as their guardian,
then he is bound by his returns to the ordinary."
1. There is no dispute that the plaintiffs are persons of
color, and that Phillips was once their guardian. Ilis char-
acter of guardian is alleged in the declaration, and is ad-
mitted in the second plea. But that plea makes the point
that he was legally discharged by the ordinary, and a suc-
cessor appointed, in March, 1868. The record shows that
the order of discharge was based on the order granted at
the same term appointing the successor, and upon an ac-
counting with the successor and not with the wards. It
fails to show, nor is there any evidence whatever, that there
was any citation or other notice to the next of kin or to the
plaintiffs, or any election by them, or any of them, to change
the guardianship. The general law providing for the dis-
mission of guardians requires a previous publication of the
application. Code, §1849. The provision for the resigna-
tion of a guardian is found in the next preceding section,
and reads as follows: *' Any guardian who, from age, in-
firmity, removal from the county, or for any other cause,
desires to resign his trust as such, may apply to the ordinary
having jurisdiction of the trust, setting forth the reasons
therefor, and also the name of some suitable person willing
to accept the trust, whereupon the ordinary shall cite such
person and also the nearest of kin of such ward, to appear
at the next term of said court, and if the ordinary shall be
satisfied that such change of guardians will not be detri-
mental to the interest of the ward, and no good cause is
shown against it, he shall grant the prayer of the applicant,
discharging him from his trust on the following conditions,
viz : that he shall forthwith deliver all property and pay
all money held by him as such guardian, upon a fair settle-
ment of his accounts, to his successor; and upon the filing
of the evidence of such settlement, and the receipt in full
of his successor, the guardian shall be discharged from his
88 SUPEEME COURT OF GEORGIA.
Manroe et tU, vs. Phillipe, administratrix.
said trust. The ward shall have the privileffe, within five
years after he comes of age, to re-open such settlement and
call for an account." If this provision were applicable, we
think the evidence fails to show that it was pursued. It
contemplates that the nearest of kin of the ward shall be
cited, and have an opportunity to show cause. But we do
not think it can be held applicable, for the reason that all
guardianships of free persons of color were terminated, as
guardianships strictly, when the status of free persons of
color became changed both civilly and politically by the
results of the war and what ensued. If Phillips was the
guardian of negroes prior to the war, they were free persons
of color, for there was no law for any slave to have a guar-
dian ; and the distinctive legal class " free persons of color"
had ceased to exist in this state in 186S. This great change
of status placed those who had been guardians of that
class in new relations, and their subsequent holding of the
property of their former wards was in the nature of a gen-
eral trust, superinduced by operation of law. The guar-
dianship proper having terminated, such guardians could
no more resign to or before the ordinary than could a guar-
dian appointed for an infant, during infancy, resign after
his ward had become of age. Adult negroes could at once
call their former guardians to account ; and infant negroes
could do so too, suing, if not by a next friend, by a
guardian appointed for them as infants. Doubtless it
would have been perfectly competent for the ordinary, on
due citation, or on the election of the two plaintiffs who
were then minors, to have appointed a guardian for them,
not as free persons of color, but as infants. The mistake
was in applying the law of resignation and succession,
where the law of a new and original guardianship of alto-
gether another class from that which had existed and ex-
pired, was applicable. Nor was this quite all of the mis-
take, for as to the plaintiff who was no longer a minor iu
1S63, there was no cause for a further guardianship of any
sort. The true view of the situation of Phillips in 1868 is,
SEPTEMBER TERM, 1879. 39
Manroe^^ al.v^. Phillips, AdmiDiHtratrlx.
not that he was the holder of a living guardianship with
power to resign it, but that he had already been turned out
of office as guardian and converted into a trustee of a more
general class ; nevertheless, as all trustees having in their
hands a pecuniary fund, as a part of the trust estate, or
receiving any sums of money as income or proceeds of such
estate are, by section 232-t of the Code, to make returns to
the ordinary . . . under the same rules and regulations as
are prescribed for guardians, the ordinary was not without
jurisdiction of the returns which Philips made. We rule,
too, that his returns are not conclusive against him in all
respects, but are open to explanation. See 45 Ga,j 520 ;
59 lb, 213, and compare II /&., 262 ; 25 2b., 696.
2. But we do not agree with the circuit judge that they
can be explained to the extent of breaking up the whole
trust, and putting a negative upon the very existence of the
trust relation and of the admitted guardianship out of
which that relation sprang. We are dealing with person-
alty and not with realty, and this is material to be borne
in mind when comparing the present case with some cases
that have preceeded it. While slavery existed, there was
no law or public policy against the ownership of personal
property (other than slaves) by free persons of color, but
a different rule prevailed as to realty. Personalty could
be owned by free persons of color, without limit, in all parts
of the state. But by a slave nothing could be owned, for
all his acquisitions belonged, as he did, to his master. The
appointment of Phillips as guardian for the plaintiffs and
their mother, and his acting in the capacity of their guardi-
an, presupposed their freedom — involved it as a foregone
conclusion. He could not have been the guardian of
slaves ; there was no law for it. If these negroes were de
fv^to free (and the evidence indicates they were, long before
slavery was abolished) and if Philips acted as their guar-
dian from and after 1854, debiting and crediting them
as his wards, (and his sworn returns show that he so did)
what matters it whether they were free de Jure or not ?
40 SUPREME COURT OF GEORGIA.
Manroe et al. vs. Phillips, adminlHtrjitrix.
We have the oath of Phillips that he was their guardian,
that he had their funds as such, and expended a part thereof
for their benefit. The other evidence shows that the funds
came by gift from their reputed father, and not from Phil-
lips. The latter was not dealing with the wards as free, at
his own expense, and never in his life-time made the point
that they were not free. As late as 1868, he recognized
and avowed their freedom, as dating at least as far back as
1855, and their title to the original fund in his hands, and
this he did by a solemn admission in Judicio. Can his rep-
resentative, at this late day, raise the question of their free-
dom dejure,2ind overturn the whole fabric of guardianship,
trust and title ? Has so wide a range ever been taken under
the name of explaining returns ? All slavery long ago abol-
ished, one of the wards (the mother) dead, the guardian
dead, and now the questions are made for the first time,
were the wards free ? Could they legally have a guardian in
1855, and for the ten years succeeding? Could they own
the personal property which the guardian never claimed
for himself, but always treated as theirs ? We think the
guardian stood committed to the theory that his wards had
acquired their freedom by some lawful means, and to their
ownership of the fund, (the fund being personalty) and that
his administratrix must abide the consequences.
3. The returns are open to explanation as to the amount
of the fund, the changes through which it underwent, etc.,
but no conversion of u from one form into another, as into
Confederate bonds, could be recognized as binding upqn
the wards, unless it was made in a legal way. To invest
trust assets in Confederate bonds, the statutes on that subject
in force at the time, with reference to the procuring an
order from the judge of the superior court, had to be pur-
sued. The burden of proof on this branch of the case is
upon the defendant.
4. Though the plaintiffs read but two of the returns, it
was competent for the defendant to introduce the rest, and
for the jury to consider the whole as one entire document,
SEPTEMBER TERM. ]879. 41
Manroe^^ al. iv. PhililpB, administratrix.
giving more or less credit to the several parts as they thought
they deserved. The returns were all made at the same
time, and sworn to in one and the same affidavit.
5. The declaration is not properly framed, and if it had
been demurred to, it ought to have been amended. Indeed,
it ought still to be amended, so as to set out the actual facts
more fully. But the question of limitation was not raised
upon the declaration separately ; and on the evidence, the
ten years term, and not that of five or of four years, applies
Code, §2922. The cause of action could not be considered
as accruing before free persons of color ceased to exist in
our system as a separate class. The two plaintiffs who
were infants when the war closed would have the full ten
years from the time they attained majority. Code, §2926
It will be noticed that the application of the act of 1869
was not suggested in the record. If it had been, with the
declaration left in its present shape, the following cases
would have been somewhat in point : Windsor V8, Bell, 61
Ga,^ 671 ; Jordan vs. Ticknar^ 62 /5., 113. And see Beavers
vs. Campy last term. The declaration is very unsatisfac-
tory, when compared with the evidence, but it is amendable,
and no direct point seems to have been made upon it below.
Cited by counsel for plaintiffs. On change of guardians,
Cobb's Dig., 985,977; Code, §1811. On estoppel by re-
turns, 1 1 ba., 262 ; 25 76., 696 ; 1 QVl'f on Ev., §§207, 208 ;
1 Bos. & Pull., 293 ; Code, §3753. On period of limita-
tions, Code, §§2922, 2926, 2931.
Cited by counsel for defendant. On gift to slaves, 6 Oa.^
539 ; 20 76., 338 ; 26 76., 225, 625 ; 30 76., 253, 275 ; 38
7J., 655 ; 46 IK, 361, 399 ; 58 7J., 118 ; 61 lb., 248. On
change of guardians, Code, §1848 ; Cobb's Dig., 985, 999 ;
and sufficiency of recitals in the order, 47 Qa., 196; 52 76.,
604 ; 56 76., 307, 808. On limitations, 54 Oa., 500 ; 55
/6., 35 ; 56 76., 416 ; 68 /6., 382.
Judgment reversed.
42 SUPREME COURT OF GEORGIA.
Lynch m. QoldBmith.
Lynch vs. Goldsmith.
1. An instrument in the following terms: *' Atlanta. Qa., February
1 1th, 1873. This is to certify that Mike Lynch has deposited in the
Dollar Savings Bank three hundred and fifty dollars, subject to his
order, on the following terms : interest at seven per cent, on call,
or ten per cent, by the year. J. M. Willis, cashier," and indorsed
in blank by Lynch the payee, is in effect a negotiable promissory
note, payable generally on demand, and due immediately, and no
demand, notice or protest is necessary to charge the indorser.
2. The indorsement of negotiable paper in blank imports, prima facie,
an undertaking to pay, and the burden of rebutting the presump-
tion is on the indorser.
8 Where the indorsement is in blank, and the indorser, at the time of
negotiating the instrument, construes the indorsement as a transfer
of title unattended with liability on his part, and the other party
knows he so construes it, and docs not object, that constructioo,
in the absence of an express agreement to the contrary, will control
as between these two parties.
4. Considered alone, or in connection with the rest of the instructions
given to the jury, so much of the charge of the court was erroneous
as directed the jury thus: "See what material facts going to illus-
trate the issue stand undisturbed before you, and then see to what
conclusion those material facts in the case undisturbed lead your
minds, and as they may lead your minds, you so believing them,
why, you must so flud/' the losing party being dependent for success
chiefly on the controverted matters in the evidence, while the mat-
ters not controverted, considered by themselves, necessitated a ver-
dict against him.
Negotiable instruments. Indorsement. Protest. Charge
of court. Before Judge Clark. City Court of Atlanta.
December Term, 1878.
Goldsmith sued Lynch as indorser on five certificates of
deposit differing only in dates and amounts, one of which
is copied in the first head-note, aggregating $1,450.00, be-
sides interest. The declaration was in the short statutory
form with copies attached. The defendant pleaded as fol-
lows:
1. The general issue.
2. That on December 9, 1873, the defendant exchanged
SEPTEMBER TERM, 1879. 43
Lynch vs. Goldsmith.
the certificates sued on with plaintiff for a house and
lot, and indorsed them in blank solely for the purpose of
passinc: the title thereto, and not with any intention of be-
coming liable on said indorsement, as was well known to
the plaintiff.
3. That at the time of this exchange, the certificates
were worth par, and were selling in Atlanta at eighty cents
on the dollar, whilst the house and lot were not worth more
than $2,000.00.
4. That no demand was made on the Dollar Savings
Bank, the place where said moneys were left on deposit,
before this suit was brought.
5. That said certificates were made and were payable at
the Dollar Savings Bank, a chartered bank having its place
of business in the city of Atlanta, that payment was never
demanded, that said certificates were never protested, and
that defendant was never notified of any demand or of any
protest.
The plaintiff introduced in evidence, besides the five cer-
tificates sued on, three others aggregating $550.00, which
had been transferred to him by defendant at the same time,
and with which he had subsequently parted.
The plaintiff testified, in brief, as follows : Came into
possession of the certificates on December 9, 1873. Made
repeated demands on the Dollar Savings Bank, and on each
of its officers, but it was in a state of suspension, and has
so remained ever since. The certificates were not protested.
The bank was a chartered instituticm doing business in the
city of Atlanta. Told defendant that the certificates had
not been paid.
Defendant introduced the deed to the lot for which he
exchanged the certificates. It purported upon its face to
be in consideration of $'^,000.00.
J. M. Willis testified, in brief, as follows: Was cashier
of Dollar Savings Bank. It suspended September 25,
1873. It was put into the hands of the stockholders on
October Ist, and on the 4th of the same month W. S.
8
44 SUPREME COURT OF GEORGIA.
Lynch vg. Ooldemitb,
ThomsoTiy Esq., under their direction, took charge of it.
After that, witness assisted him. Subsequently plaintiff
came into the bank and asked witness how they were get-
ting on ? to which he replied that tl>ey were trying to get
the bank on its feet again, etc. Plaintiff showed him some
certificates which he had bought of Lynch, but made no
demand for payment. The certificates then sold for 60 to
75 cents on the dollar. It was then thought that the bank
would pay all of its debts and leave something for the
Rtockholders.
M. Lynch, the defendant, testified, in brief, as follows:
There was about $175.00 in interest due on the certificates
at the time of the trade. They cost him $2,003.40; that \%
to say, he had to pay §3.40 more than the principal to get
one of them. On or about December 1, 187*^, plaintiff
asked defendant if he had any money in the Dollar Savings
Bank. Defendant replied that he had, and inquired what
plaintiff would give for the certificates 'i Plaintiff said he
had no money, but would give a house and lot for them.
Defendant replied that he did not want a bouse and lot,
but would rather sell tl>em for cash and throw in the inter-
est. After that, every time plaintiff passed his store, he
would come in and talk about the "swap." Defendant
continued refusing until plaintiff told him to go and look
a* the house, which he did, and after consulting with hi»
partner he consented to trade* Plaintiff came ta see hin>
from seven to a dozen tinves on the subject. In not ex-
ceeding twenty minutes after defendant consented to swap,
plaintiff brought the deed and put it on his show case.
Defendant then got tlie certificates, when plaintiff said that
as they were payable to his order he roust indorse them,
and he (plaintiff) would stand between him (defendant) and
danger, but he could not do- anything with them nnlesa
defendant's name was on them. Defendant then indorsed
them in blank. He did not put his name there to be liable
if the bank failed to pay ; if he had ever thought that he
would be liable he would not have doue it. It was solely
SEPTEMBER TERM, 1879. 45
Lynch V8. Goldcimith.
on the faith of plaintiff's promiee to stand between liim and
danger that he indorsed. Two or three days after the
trade, and after defendant had been to the house, and had
seen tliat it had only two good rooms in it, and two shed-
rooms, he met plaintiff and said: "I did not think you
would swindle me; I want you to rue back, and I will give
yoa ten dollars for the trouble of drawing the papers/'
Plaintiff declined this proposition. For various reasons
stated, does not regard the house and lot as worth more
than $1,500.00, if tliat, though it is assessed by the city at
* 1.800.00.
W. S. Thomson, Esq., testified that he took charge of the
assets of the bank for the stockholders about October 1,
1873, and so remained nntilJanuary, 1874. The bank was
adjudicated to be bankrupt about March 24, 1874, and wit-
ness and Candler were appointed trustees, and have since
had charge as such. About December 10, 1873, certificates
of deposit sold for 80 cents cash as an investment. They
were then worth from 75 cents to par. Plaintiff never
made any demand on witness for the payment of the cer-
tificates held by him.
The above synopsis e( the evidence for the defendant
will clearly show the nature of the case and the questions
involved. It is only necessary to add that the plaintiff, in
rebuttal, controverted every material statement. He insisted
that he parted with his house and lot for the certificates on
a bank in a state of suspension solely and expressly on the
faith (»f defendant's indorsement, and that he only did this
in response to the urgent and repeated solicitations of de-
fendant ; that his house was well worth $2,200.00, the price
charged, not $2,000.00 as erroneously stated in the deed ;
that the interest on the certificates at the time of the trade
amounted to about $200.00 ; that from the suspension of
the Dollar Savings Bank, defendant was in a great state of
excitement and alarm lest he should lose his money, and
seemed to be of the opinion that becanse plaintiff was the
cashier of the Georgia Banking and Trust Company, with
46 SUPREME COUKT OF GEORGIA.
Lynch rx. Goldsmith.
which the Dollar Savings Bank kept an account, and in
close intimacy with the officers of the latter institution,
that he could save him in some waj ; that defendant was
not satisfied to leave the certificates with him simply for
collection, but insisted that he (plaintiff) should become in-
terested in them in some way, andaftermany entreaties and
importunities on the part of defendant this trade was made ;
that the house was well worth the sum asked, and that de-
fendant well knew that plaintiff would never have taken the
certificates therefor unsecured by his indorsement, so as to
be protected in case he failed to collect from the bank.
There was testimony upon collateral points tending to
sustain and refute the statements of the parties at interest,
not deemed material here.
The jury found for the plaintiff the full amount sued
for, with interest.
The defendant made a motion in avert of judgment as
follows, to-wit :
J. Because said defendant, if bound at all upon the in-
struments sued on, was bound as a security, and was liable
as a security, and not as an indorser, and he was improperly
sued in said action as appears on tli^ face of the record.
*2. Because the Dollar Savings Bank, the maker of said
instruments sued on, and on which said defendant was so
liable, if liable at all, as security, was not sued.
3. Because the instruments sued on were not in law such
as could be transferred by blank indorsement, and thus
create the liability on the person making such indorsement,
of indorser as known to our law.
4. Because no demand and notice were averred as is nec-
essary to charge an indorser on a negotiable instrument, pay-
able at a chartered bank, if said instruments sued on are
promissory notes and io payable.
The motion was overruled and defendant excepted.
The defendant also filed his motion for a new trial upon
the following, amonst other grounds, to-wit :
1. Because the court erred, in charging the jury as fol-
SEPTEMBER TERM, 1879. 47
Lynch vf. (toldi^niith .
lows: "It is immaterial, gentlemen, whether this is called
a promissory note or what is the particular class or style
of paper tin's is under the law. It is sufficient that it is ne-
gotiable paper. The paper is in evidence, and undisputed
as to its contents, and it is a promise on the part of the
bank to pay to Lynch, or his order, the sum of money. It
draws interest at 7 per cent, per annum, if on call, and
at 10 per cent, by the year. I say that that is sub-
stantially the contents of the papers that are sued on. It
was not, in my judgment, necessary that upon this paper
there should have been any demand upon the bank for its
payment, or as a consequence, any protest or notice of pro-
test to Lynch to hold him liable, if you believe that at
tlie time of this indorsement this bank was in a state of
suspension. But so far as the demand is concerned, if you
believe that a demand was made upon the president or the
cashier of this bank, or both, that would satisfy the require-
ments of the law so far as demand is concerned."
2. Because the court erred in charging as follows : "Every
indorsement of a paper is a new contract as between the
indorser and the person to whom indorsed, who is called the
indorsee, and is an engagement upon the part of the indorser,
if that indorsement is not upon any condition, not limited
or qualified in any way, that he will become liable to the
indorsee or any one to whom he may indorse that paper
according to the legal tenor and eflfect. That being the
true law governing indorsements, and if you believe the
evidence satisfies your minds that Mr. Lynch put his name
upon these papers without qualification, without restriction,
the presumption is that he intended to bind himself accord-
ing to the law of indorsement, as I have stated to you,
and if he expects to relieve himself from the effect of that
indorsement, ho should show, to the satisfaction of the jury,
some reason, good in law, why he should not be made so
liable."
3. Because the court erred in charging as follows : "But
if the matter was not understood between the two parties
48 suprem:-: court of Georgia.
Lynoh w. Goldsmith.
at the time, or rather, I should have stated it, that in order
for jon to find that Mr. Lynch is not liable upon this in-
dorsement, jou must believe from the evidence, that it
was the contract and the understanding of both the parties
at the time, that it was not to be so."
4. Because the court erred in charging as follows: *'See
what is most natural, probable and reasonable under the
several circumstances in the case, and also see, and perhaps
more particularly see, what material facts going to illustrate
this issue, stand undisturbed before you, and then see to
what result and to what conclusion those material facts in
the case undisturbed lead your minds, and as they may lead
your minds, and you so believing them, why you must so
find."
5. "Because the court erred in refusing to charge as fol-
lows : "Lynch pleads that he exchanged said instruments
sued on for a house and lot in the city of Atlanta, and that
he indorsed said instruments in blank solely for the purpose
of passing the title thereto, and not with any intention or
purpose of becoming liable upon said indorsement, and
that this was well known to Goldsmith. The court charges
you that if the indorsement was made by Lynch to pass
title to the instruments sued on, and with the intention of
not being liable thereon as indorser, and Goldsmith knew
that was Lynch's understanding when Lynch made said
indorsement thereon, then Lynch would not be liable."
The motion was overruled, and defendant excepted.
Error was assigned upon the refusal to arrest the judg-
ment and to grant U new trial.
Jruus L. Brown ; Hopkinb & Glenn, for plaintiff in
error, cited on liability of Lynch as suret}', and not as in-
dorser, 4 Oa., 115,280; 29 /J., 704; if indoreer, there
should have been averment and proof of demand and no-
tice, 41 Ga., «.14; 44 /J., 186; 9 Fla., 212. Certificates
were not negotiable promissory notes, Code, §§2103, 2105,
SEPTEMBER TERM, 1879. 49
Lynch r*. Goldsmith.
2774; 56 Ga., 206 ; 6 Watts & S., 227, 235 ; 8 lb., 353 ; 57
Oa., 510 ; 44 /*., 636 ; 8 lb., 178 ; 2 U.in. No<^. Ins., §j?l608,
1704 ; 48 N. Y., 478; I Greenleafs Ev., §305 ; 28 Pa. State,
452. Charge as to demand and notice error, Code, §2781;
44 ffa., 178; 25 Miss., 571 ; 2 Wheat., 29; 3 John. Ch.,
142; 27 Maine, 285; 2 Binney, 279; 8 John., 3ti2. Re-
fusal of request error, 4 Ga., 294; 42 /J., 290. Error to
refer the jury specially to the undisturbed facts, 61 Ga.,
322, 475; 59*^ /5., 408, 584 ; 57 lb., 489.
John D. Cunningham; B. F. Abboit; Gkorge C. Spann,
for defendant, argued as follows : If Lynch was security,
<le feet cured by verdict, 62 6ra., 73; 45 /J., 98; Code,
§3590. Bank not necessary party. Code, §§2162, 2168.
* —
Certificates negotiable. Code, §2776; 50 Ga., 605; Dan.
Jfeg. Ins., §§1702 et seq. No demand and notice necessary.
Code, §2781 ; 56 Ga., 605; 52 /J., 438; Morse on Bank-
ing, 33. Charge legal, and refusal covered by general
charge, 50 Ga.^ 119 ; 53 /J., 570, 633 ; 60 lb., 264, 609 ;
41 /J.. 186 ; 43 Ik, 529 ; 55 lb., 696 ; 54 lb., 146 ; 61 lb.,
401 ; 60 IL, 309 ; 58 lb., 306.
Bleckley, Justice.
There was no cause for an-esting the judgment. The
declaration was framed on a correct theory of the law, was
full enough, and set forth a cause of action. The instruc-
tions of the court, except that portion of the same embraced
in that ground of the motion for new trial numbered 4th
in the report, were substantially correct, but did not ex-
haust the ease. The request to chargij reported in the 5th
ground of the motion was proper, and was in writing. It
should have been given to the jury, A new trial results
from the denial of the request, and from the misdirection
which is q,uoted in the last head-note ; but it is proper to
go over some of the points made in the record, and dispose
of them seyeralJy.
50 SUPREME COURT OF GEORGIA.
LyDcfa rt. Ooldemith.
1. The iustruinents issued by the bank and indorsed by
Lynch are, in effect, negotiable promissory notes, payable
generally on demand and due immediately. That they are
promissory notes, see 7 Ga.^ 84.; 6 /6., 5S8 ; 7 /J., 584; 9
/i., 338 ; 17 lb., 574. They contain words of negotiability,
being payable to Lynch's order. 56 Ga.^ 'i05 (text) ; 62 /J.,
79, (text). That they are to be construed as payable gener-
ally, and at no particular place, and therefore not at a char-
tered bank, see 13 G^a., 287. And that they belong to the
clast? of paper payable on demand, and consequently due
immediately, see 56 Ga., 605; 15/i., 257; Code, §2791
With reference to demand upon the maker and notice to
the indorser, the Code is decisive. It provides, in seciion
2781, that when promissory notes are made for the purpose
of negotiation, or intended to be negotiated, at any char-
tered bank, and the same are not paid at maturity, notice of
the non-payment, and of protest for non-payment, must be
given to the indorser, or the indorser will not be held lia-
ble, and that upon iio other notes shall notice or protest be
held necessary to charge the indorser. The instruments
which we are considering were indorsed long after maturity,
and therefore if they had been expressly payable at bank,
the indorser was not entitled to notice. 44 Ga., 178^
Again, if, as we have held, the instruments were payable
generally, demand and notice were unnecessary to bind the
indorser. 44 Ga., 63. The better opinion seems to be that
the face of the paper, and that alone, is to govern on the
question of right to notice. 4 Ga., 106 ; 30 lb., 271 ; 52
lb., lai ; 59 /*.. 776. Apparently contra, 28 lb., 177.
Having spoken thus far for the court, candor obliges me
to add, that since the.decision was pronounced, the follow-
ing line of reflection has occurred to me : What is a cer-
tificate of general deposit issued by a bank i Is it not an
acknowledgment of the bank that it has received a loan of
money from the depositor, coupled with a promise implied,
if none be expressed, that it will repay the loan at t/ie bank
upon actual demand or call, if no particular time or place
SEPTEMBER TERM, 1879. 51
Lynch tv. Guldsiiiith.
be specified ? Does not the known coarse of business re-
quire this construction, and does not the nature of the
transaction sno^fijest it? If these questions be answered in
the affinnative, there is no dishonor of the certificate until
after actual demand at the ba?ik% and consequently not until
after such demand is the paper over-due. If demand must
be made at the bank, then the bank is the place of payment ;,
and the ri^ht of the indoreer to notice would seem to follow
unless the fact that the bank was in a state of suspenpion,
and so known to be by both parties, when the certificates
were negotiated, constitutes an excuse for the omission of
notice. But I pass on to the other points.
2. There can be no possible doubt that the indorsement
of Lynch imported, prima ^acie^ an undertaking to pay,
and that the burden of rebutting is on him. He was the
payee of the certificates, and he indorsed in blank, and
after so indorsing, made delivery, and received value.
Formerly he would have been precluded from shielding
himself by parol evidence, b^t under the Code he may do
80. While a blank indorsement, standing by itself, still has
a distinct legal meaning, it is, in relation to extrinsic facts,
an unbounded ambiguity — a line with an unlimited margin
OD either side.
3. As was his right, Lynch attempted to explain and
qualify his indorsement by his own testimony, after plead-
ing that he indorsed solely for the purpose of passing title,
and with no intention of becoming liable, and that this was
well known to the plaintiff. In the request to charge which
the court declined, it was sought to have this defense recog-
nized as legally available. The action was between the
original parties, and no rights of third persons were involved.
The Code says, in section 2756: ''The intention of the
parties may differ among themselves. In such case, the
meaning placed on the contract by one party, and known
to be thus understood by the other party, at the time, shall
be held as the true meaning " It seems to us clear that the
request to charge was within this section of the Code ; and
52 SUPREME COURT OF GEORGIA.
Fluncgan vs. The State.
there was undoubtedly some evidence that Lynch under-
stood the effect of indorsing in blank, under the special
circumstances, to be as he alleged in his plea, and that his
understanding was known at the time to Goldsmith. The
indorsement being in blank, this evidence did not contra-
dict the writing, but went to explain its ambiguity. The
conflict in the evidence should have been left to be settled
by the jury, but they should have been instructed as matter
of law that the defense was suflicient if they found as
matter of fact that it was proved.
4. The absolutely predominant influence which the court,
in charging the jury, gave to the "undisturbed" facts was
error. The facts which were in repose, unless some of
them were made to bend to those which were in agitation,
necessitated a recovery by the plaintiff. The true dispute
lay in the region of the controverted facts, and to reach a
correct verdict without disposing of them was impossible.
Not by one description of facts or another, but by all the
facts, ought the finding to be governed.
Judgment reversed.
Flanegan vs. The State of Georgia.
[Wabnsb, Chief Jaetice. being eni'iiged in presiding over the senate oi^anized w a
court of impeacliment, did not Bit in thi^ case ]
1. Wliere a homicide was committed in the dark and in the midst of a
crowd, and there is question whether a wound in the back from
which the death may have resulted, wtis made hy the prisoner or
by another, a declaration made by a bystander immediately after the
rencounter, to the effect that he, the bystamler, cut the accused in
the back with a knife, when the accused had no such cut in the
back, but deceased had, is admissible for all purposes as part of the
res gesUB, and a charge of the court confining such evidence to tlie
single object of impeaching the testimony of the bystander, is en or
for which a new trial should be granted, though in other respects
no errors were committed, and the case otherwise was fairly trie<l,
the fight occurring in a crowd at night, and the evidence being con-
flicting.
SEPTEMBER TERM, 1879. 53
Flancgan t«. The State.
2. Newly discovered testimony tending to impeach a witness, and in
the main cumulative, will not be sufficient ground, of itself, for the
grant of a new trial.
8. That a juror while charged with the case, had one or two casual
communications with persons not on the jury, and that the bailiff
in charge procured newspapers for him late in the evening and
shortly before the verdict was found, will not necessitate a new
trial, it appearing that nothing was said or done which had any
bearing on the case, or which damaged the defendant. (R.)
4. Taking the entire case together, we find no other error except that
stated in the first head-note. (K.)
Criminal law. Charge of Court. Evidence. Res gesUv,
New trial. Jurors. Before Judge Cra^wford. Marion
Superior Court. April Term, 1879.
The following, in connection with the opinion, sufficiently
reports this case :
Flanegan, as principal in tlie first degree, and two others,
as principals in the second degree, were indicted for the
murder of one Tullis. The evidence on the trial of Flane-
gan was, in brief, as follows : At a party which took place
at the house of a Mr. Gordon, Tullis wanted a fiddle which
Flanegan had, and refused to give up; after playing awhile,
ho went out to the front of the house, and in a short time
one Pickett came in and reported to Tullis that Flanegan
was out there abusing him. Tullis went out, and a col-
loquy ensued in which Pickett joined with Tullis, and ren-
dered himself efficient in bringing on a difficulty. Finally
Tullis invited Flanegan to go out in the yard and fight; the
latter seems to have been loth to do so, but at length they
did go, and a fight ensued. Several others besides the
principal actors took a hand in the aflEair. Such as were
made witnesses testified that they were separating the
parties, and acting as peace-makers, while other witncisses
insisted that most of them acted in a manner too energetic
to comport with peaceful intentions. Tullis was cut with a
knife ; Flanegan was not hurt ; Tullis died from his
wounds. The evidence for the state pointed to Flanegan
aa the one who did the cutting. One of his lines of defense
54 SUPREME COtIRT OK tiEOKGIA.
Flaiiegan vt. The State.
was that it was dark, and in the melee the cutting was done
bj some other than himself. When Gunnels, a witness for
the state who testified to having sought to separate the
combatants, was asked if at the time, or within a moment
or two thereafter, he had not said " Where's the God
damned rascal ? Let's kill him !" and if Pickett had not re-
plied "He's gone, but I gave him five gashes in the back
before he got away," the witness denied any sucli conver-
sation. Other testimony was introduced to show that it
did take place. In his charge, the court limited the effect
of this testimony to the purpose of impeaching Gunnels.
In regard to the details of what was said by the parties, etc.,
the evidence Was very conflicting.
The jury found the defendant guilty of voluntary man-
slaughter. He moved for a new trial on the following,
among other grounds :
(1.) Because the court erred in limiting the scope of the
testimony, as set out above.
(2.) Because of newly discovered evidence. [On exami-
nation of the aflidavits in support of this ground, it ap-
peared that the new evidence was merely cumulative of
that already introduced.]
(3.) Because one of the jurors communicated with various
people after being charged with the case ; and because the
bailiff in charge of the jury left his post and carried mes-
sages for the juror. [The affidavits for the state show that
the juror spoke to a lady at the hotel where the jury were
domiciled, and asked her for a pack of cards called
"authors;" that he received the cards and also a cigar;
that the bailiff, at the request of the juror, sent for some
newspapers and afterwards went himself for them. But
these aflSdavits show that nothing was said by the juror to
any one in regard to the case under consideration ; that the
jury were kept under lock and key ; that, under the direc-
tion of the court for the bailiff to allow the jury to have
papers, etc., to read during the night, he had endeavored
SEPTEMBER TERM, 1879. 55
Flanegan vs The State.
to get the newspapers which the juror wanted, and did ob-
tain and deliver them late in the evening just before the
verdict was found ; that nothing was said or done to influ-
ence the juror in his decision.]
The motion was overruled, and defendant excepted.
W. S. Wallace ; Blandfokd & Garrard ; E. M. BaiT,
for plaintiff in error.
H. BcssEY, solicitor-general, by John Pkabody, for the
state.
Jackson, Justice.
The defendant was indicted for murder and found guilty
of voluntary manslaughter; a new trial was denied him,
and he excepted.
1. After a very mature consideration of this case, we
have concluded to grant a new trial on the ground that the
court erred in one material point in the charge to the jury.
It appears from the record that Gunnels, a witness for the
state, in answer to cross questions, said that he did not say
just after he pulled the accused from the deceased or jerked
his hand back from striking him, or within a moment or
two thereafter, " where's the God damned rascal, let's kill
him," and that Munroe Pickett did not reply " he's gone,
but I gave him five gashes in the back before he got
away," or words to that effect. It afterwards api)eared by
other testimony that conversation to that effect iminediatelv
at the close of the fight did take place between the two, '
Upon this state of facts the court instructed the jury in the
charge as follows : " But the defendant further insists in
that connection, that if there was a knife used on that oc-
casion it was not used by the defendant, and if the killing
took place, it took place by reason of the fact that one
Pickett was the guilty party and not the accused, and in-
sists upon the testimony which has been submitted to you
on that subject as being sufficient to satisfy your minds that
66 SUPREME COURT OF GEORGIA.
Flanegan v«. The State.
Pickett was the party who committed the oflfeiisc. In that
connection the court says to you did Gunnels ask ' wbere'a
the damned rascal,' referring to the prisoner at the bar, fol-
lowing it up with the words * let's kill him?' If so what
Pickett said, if he said anything in reply to that remark of
Gunnels, was not evidence to establish the fact that he did
give TuUis a number of gashes in the back, but may be con-
sidered as evidence of what transpired between Gunnels
and himself to see whether Gunnels did or did not swear
truly."
In view of the facts disclosed in the record, we think
that this charge was erroneous. The deceased had severe
wounds in the back, one physician testifying that they
killed him or largely contributed to his death ; the accused
had no such wounds in the back ; the two men were fight-
ing in the dark, and Pickett, if he cut one of them in the
back with a knife, making several bad gashes, in all human
probability cut the deceased, and if deceased died from these
wounds, or would not have died but for these wounds in
the back, Pickett may have killed him, though intending
the licks or stabs for the accused. The conversation oc-
curred just as Flanegan got away, and while deceased was
bleeding with the wounds of which he died. Pickett was
not making evidence for Hanegan, if he made the remark.
It was part of the res gestcB. It was almost instantaneoas
with the stabbing which the witness swore he said ho gave;
therefore being res gestce, it became an act done during the
tight or evidence thereof, if he said it, and was testimony
not only to impeach Gunnels, but to show that he did the
stabbing in the back of deceased by mistake. It is clear
therefore to us that the court was wrong to exclude it
from the jury except to be used as impeaching the other
witness. The jury had the right to consider it for all pur-
poses, to be weighed by them with the other evidence.
0' Shields vs. The State^ 55 Oa,^ 696 ; Mitchum vs. The
State, 11 Ga., 615 ; 1 Greenleaf Ev., 10 Ed., §§108-114.
2. The newly discovered evidence appears to be cnmnla-
SEPTEMBER TERM, 1879. 57
Thompson vs. Douglass.
tive and tending only to impeach the witneeeee for state.
Therefore alone, it could not operate to require a new trial.
25 Ga,, 182 ; 37 Ga., 48; 39 Ga., 718 ; 56 Ga., 364 ; 59
Ga.y 391. 13nt the case will be tried over, and then, of
conrse, it can be used.
3. The trouble about the juror was answered by the ex-
planations. So about the bailiff. Prisoner was not hurt.
18 Ga., 534; 19 Ga., 102.
4. The part of the charge first excepted to gave the law
substantially to the jury in regard to justifiable homicide,
and taking the case altogether, we are unable to see any
error except the exclusion from the jury of the evidence of
Pickett's sayings to show that he did what in the melee he
said he did, as testified to by some witnesses. This evidence
was good to be considered by the jury and weighed as part
of the transaction for whatever they thought it worth ; and
on this ground, coupled with the conflict of evidence, the
fact that Pickett helped bring on the fight, the darkness of
the night, the reluctance, apparently, of accufed to fight,
and the general confusion, we think that the case should be
tried again.
Judgment reversed.
Thompson vs, Douglass.
1. The question being as to the fact of the agency for the proprietor
of a hotel in Savannah of one who purchased goods as the caterer,
there was no error in excluding from the jury the evidence as to the
custom of the proprietors of hotels in the city of Savannah in buy-
ing provisions through the hotel caterer.
2. Where the evidence tended to show a liability by reason of pur-
chases made by a general agent, unless the principal had given notice
to the seller that he must look to the agent for his money, and this
was the real point at issue, it wa? error to charge that if the pur-
chaser was a special agent for a particular purpose, the seller
should examine his authority.
58 SUPREME COURT OF GEORGIA.
Thorapjion vs. Douglass.
Evidence. Principal and agent. Charge of Court. Be-
fore Judge Tompkins. Chatham Superior Court. Febru-
ary Term, 1879.
Thompson sued Mrs. Douglass in a justice court on an
account for merchandise. On the trial the justice ^ave
judgment for the plaintiff, and defendant appealed. On
the trial in the superior court, the evidence for plaintiff
tended to show that Mrs. Douglass was proprietress of the
Pavilion hotel, and traded with plaintiff, using a pass-book;
that she informed plaintiff that she had employed a caterer ;
that a few days after that, one Seymour, as caterer of the
hotel, began making orders for groceries, which were sent
to the hotel ; that plaintiff considered the articles as fur-
nished to defendant, and so charged them ; and that he
never knew that defendant disputed such charges until
Seymour ran away ; that she then denied owing the account,
but afterwards promised to pay it if it was withdrawn
from the hands of an attorney, but she failed to pay it, and
it was sued.
The evidence for defendant tended to show that she
traded with plaintiff, and instructed him not to let any one
have goods without her book ; that she found she could not
conduct the entire hotel business, and accordingly made
arrangements with Seymour by which he was to keep the
restaurant and furnish meals to the boarders ; that she then
went to several stores where she had traded, and notified
the proprietors that Seymour would be responsible for all
goods purchased in his department ; and that she so notified
plaintiff among others. Defendant admitted that she told
plaintiff that she would pay him the bill when she was able,
if he would withdraw it from the hands of the attorney ;
she testified that she told plaintiff that she saw how he had
been misled, and while it was hard on her, she would pay
for what Seymour got rather than have plaintiff lose the
debt ; that she did make a payment on the debt, with money
SEPTEMBEK TERM, 1879. 59
Thonififoii vg. Douj;ls<8.
which she received from a boarder who owed both her and
Sejmcnr.
The jury found for the defendant. Plaintiff moved for
a new trial on the followincr, amono^ other grounds :
1. That the court erred in excluding from the jury the
evidence of tlie plaintiff showing that in Savannah the
custom of hotels was to buy provisions on the credit of the
proprietors through tlie hotels' caterers, and by orders signed
by the caterers only.
2. Because the court erred in charging the jury : " If the
goods sued for were bought by Seymour as special agent
for a particular purpose, the plaintiff should have examined
his authority," and in reading in this connection §211)6 of
the Code.
The motion was overruled, and plaintiff excepted.
A. P. & S. B. Adams, for plaintiff in error.
P. W. Mkldrim ; J. R. SxVussy, for defendant.
Warner, Chief Justice.
The plaintiff sued the defendant in a justice's court on
an account for the sum of $84.03, and judgment was ren-
dered in his favor. The defendant entered an appeal to
the snperior court, and on the trial of the case in the last
named court, the jury, under the charge of the court, found
a verdict in favor of the defendant. A motion was made
for a new trial on the several grounds therein stated, which
was overruled, and the plaintiff excepted.
1. There was no error in excluding from the jury the
evidence as to the custom of the proprietors of hotels in
the city of Savannah in buying provisions through the
hotel caterers.
2. The court charged the jury, amongst other things, that
"if the goods sued for were bought l)y Seymour as a special
agent for a particular purpose, the plaintiff should have ex-
amined his authority," and read the 21i)6th section of the
60 SUPREME COURT OF GEORGIA.
Tbompeton ts. Douglass.
Code. This charge of the court, in view of the evidence
in the record, was error. According to that evidence the
defendant wonld have been liable to the plaintiff for the
goods sold to Seymour as her caterer for the Pavilion hotel,
as her general agent in that capacity, unless she had notified
the plaintiff before the goods were sold and delivered, of
the new arrangement which she had made, and told hi in
that Seymour would be responsible for all the goods pur-
chased in his department and that she liad nothing to do
with it. If the defendant did thus notify the plaintiff,
then she was not liable for the goods afterwards sold and
delivered to Seymour by the plaintiff, and that was the
main controlling question in the case, and should have been
submitted to the jury by the court in its charge. The
charge of the court in relation to Seymour being the special
agent of the defendant for a particular purpose, and that
the plaintiff should have examined his authority as such
special afi:ent, was calculated to divert the minds of the jury
from the main issue made by the evidence in the case, and
to direct their attention to an issue not made by the evi-
dence, to-wit : whether Seymour was a special agent for a
particular purpose and did the plaintiff examine his author-
ity as such special agent. The jury may have found their
verdict on the fact (assuming, as the charge of the court
did, that Seymour was a special agent for a particular pur-
pose) that there was no evidence that the plaintiff did ex-
amine as to Seymour's authority, whereas the evidence
shows that the goods were sold and delivered by the plain-
tiff on the authority of defendant herself.
Let the judgment of the court below be reversed.
SEPTEMBER TERM, 1879. 61
Watson vs. The Stat6.
Watson vs. The State of GnoRfiiA.
1. The refusal to arrest a judgment on the ground therein stated cannot
be made the ground of a motion for new trial. Such refusal may
be excepted to in a bill of exceptions which brings up the whole
case for review, but not in a bill of exceptions which brings up only
the motion for a new trial.
2. Though the indictment need not allege that the money fraudulently
converted by the defendant was lawful currency of the United
States under section 4424 of the Code; yet if alleged, the description
must be proved Jis laid, and therefore proof that money, without
more, was so converted will not support a conviction under such aa
indictment
Practice in the Supreme Coart. Criminal law. Verdict.
Before Judge Fnderwood. Floyd Superior Court. March
Term, 187^.
Watson was indic*^ed for larceny after trust. The indict-
ment alleged that he was the agent at Rome of the Singer
Manufacturing Company, and in that capacity received of
various persons named specified amounts, ''which said sev-
eral sums of monev the said Watson received in lawful cur-
rency of the United States, and then and there, in the said
county of Floyd, did wrongfully and fraudulently convert
the same to his own use," etc.
The jury found defendant guilty. He moved in arrest
of judgment on various grounds. The motion was over-
ruled. Defendant then moved for a new trial, one of the
grounds being that the court erred in overruling the motion
in arrest of judgment. Other grounds were that the ver-
dict was contrary to law and the evidence, and that the
evidence failed to show what kind of money was appro-
priated. This motion was also overruled, and defendant
excepted.
Capkes King; J. Branhau; L. J. Fkathkrston, for
plaintiff in error.
62 SUPREME COURT OF GEORGIA.
Wateop vs. The State.
C. T. Cli-ments, solicitor general, by T. W. Alkxandrb,
for the state.
jACKsoff, Justice.
1. In this case it seems that there was a motion in arrest
of judgment predicated upon many alleged errors in the
bill of indictment; but the motion was overrnlad and was
not excepted to so that we can consider it here. The only
case brought before us is the conduct of the court in over-
ruling the motion for a new trial. The case of Tlie State
vs, Watson in its totality has not been brought up, but only
the motion for a new trial in that case. So that we cannot
review the motion in arrest or the grounds thereof. It is
true that the first ground of the motion for a new trial
16 the refusal of the court to arrest the judgment, but
such refusal is no ground for a new trial. That re-
fusal was itself a final judgment and should have been at once
exce|>ted to. The two motions are distinct, and each can
be brought here, or both, if the whole case is brought up;
but the law will not compel the caurt to travel in the circle
of refusing the one motion and then make that refusal the
ground for another distinct motion. The grounds are no};
repeated in the motion for a new trial as reasons why it
should be granted ; but the refusal to arrest is the only
ground connected with that motion which is alleged as error.
This view will dispose of all errors complained of in re-
spect to the indictment. One of them, perhaps, would
have been held good ; and that is, that there is no allega-
tion in the indictment that the money belonged to the
Singer Machine Company, or that the persons paying it
over to the defendant were agents of that company.
But all these objections are disposed of by the ruling first
made above, which is all that is before us now.
2. This brings us to the consideration of the grounds
proper in the motion for a new trial.
It was unnecessary that the indictment should have al-
SEPTEMBER TERM, 1879. 63
EIHott vs. Deason.
leged that the money converted was ^^ lawful carreney of
the United States ;" but being alleged it ought to be proven,
In Fidwood vs. The State^ 50 Ga„ 591, it was ruled that in
an indictment for aiding and abetting an assault with intent
to mnrder, it was not necessary to allege how and with
what implements the aiding and abetting was done, but
being alleged it had to be proved. So in Crenshaw vs. The
State, it was decided this term that the description of the hog
need not have been as full and minute as it was laid in the
indictment, but being laid it should be proved. The princi-
ple there ruled covers this case. All money is not lawful
currency of the United States, and there is no proof that
tlie money here converted was that sort of money. There-
fore, under tlie unanimous ruling of this court in the 50th,
we are constrained to grant a new trial in this case.
Besides, the general aspect of the case seems to us such as
that justice would be better subserved by another and more
thorough investigation, especially in respect to the fraudu-
lent intent of the defendant in the use of the money of his
principal. On that trial any minor inaccuracies will doubt-
less be corrected by the able and experienced judge who
presides in the Rome circuit.
Judgment reversed.
Elliotf vs. Deason.
1. If a promissory note, when made and delivered, is payable to a cer-
tain person or . • . (a blank being left suitable to tlie insertion
of bearer or order) and afterwards the maker, for the purpose of
securing the payment of the note to the payee or his assigns, exe-
cutes and delivers a mortgage in which the note is described as pay-
able to the pa^'ee or bearer, the mortgage, on a rule to foreclose the
same »t the instance of an assignee, will be treated as explaining the
intention of the parties in respect to the blank in the note, and the
note being indorsed to the assignee of the mortgage or to her trustee,
will be held negotiable.
2. Negotiable paper transferred bona Jide, whether before or after ma-
turity, and whether for a valuable consideration or for a good coa-
64 SUPREME COURT OF GEORGIA.
Elliott w. Deason.
sideratioD only, is not subject in the liands of the holder to a set-off
between the maker and the payee, arising subsequently lo the trans-
fer and out of transactions wholly disconnected with the paper or
the contract on which it is founded.
8. "When negotiable paper is assigned to a married woman, or to a
naked trustee for her use, both being absent, delivery may be made
to a friend acting on her behalf, and the same will be as effective
as if made directly to her or to the trustee.
4. When a mortgage is assigned to a married woman, and the negotia-
ble note which it w^as given to secure is also assigned, but to a naked
trustee for her use, the title to both is in her, and she may foreclose
the mortgage in her own name
5. A mortgage to the mortgagee and his assigns, having upon it a
written assignment purporting to be made for value received, and
for love and affection, the assignment bearing date before the ma
turity of the debt, there is some evidence, in view of the general
presumptions of law. of an assignmest for value — enough to war-
rant the court in touching upon that subject in charging the jury.
6. Advances by a partner to carry on the partnership business are gen-
erally on the credit of the firm, and not on the separate credit of
the copartner. Reimbursement involves, therefore, a settlement of
the partnership accounts ; and to settle them so as ascertain the
bal»nce, if any, due for advances, there should be an accounting
between the partners, either out of court or in court. For an ac-
counting to l>e had in court, both partners should be present as par-
ties before the tribunal.
7. Parol evidence is not admissible to show that a transcript of a record
from another court is incomplete. A certificate to a transcript which
states that **the following and annexed writing is a true, correct and
complete copy of the original on file and remaining of record iu
my office" is not sufficient. It should show with due certainty
that the transcript embraces all that is of record or on flic in the
given case. Where the verdict undoubtedly should have been the
same without the illegal evidence as with it, the admission of the
evidence is not cause for a new trial.
Negotiable instruments. Mortgage. Trusts. Parties.
Husband and wife. Partnership. Evidence. New trial
Before Judge Underwood. Floyd Superior Court. March
Adjourned Term, 1 879.
Mrs. Deason commenced j)roceedings against Elliott to
foreclose a mortgage on certain real estate in Rome, exe-
cuted to secure the payment of the following note :
SEPTEMBER TERM, 1879. 66
Elliott r« DeASOD.
•*On or by the 9lh day of January, 1872, I promise to pay W. L.
Prentice, or , five thousand and five hundred dollars for value
received, 10 per cent, interest. This January 9, 1871.
[Signed] J. M. Elliott."
On the back of the note were several credits, not mate-
rial here. Also the follwin^ transfer :
"For love and affection I have for my daughter, Mattie P. Deason, I
hereby transfer to J. T. Deason, her husband and trustee, this note and
the mortgage taken to secure the same, iilso the steamboat stock I hold
as collateral to secure the same. Witness my hand and seal, this Jan-
uary 9th, 1871.
[Signed] W. L. Prentice."
"Attest : C. G. Samuel.
A mortgage was executed coteinporaneously with this
note on certain property, which was subsequently taken up
and canceled and a new mortgage made covering other prop-
erty, dated June 8th, 1871. On this was the following
transfer :
"Georgia — Floyd county.
For value received, and for love and affection, I hereby transfer this
mortgage to ray daughter, Mattie Deason, wife of J. T. Deason, now
residing in Jefferson county, Alabama, and I authorize said J. T. Dea
son as her trustee to collect the note. This is intended to secure and
control the same for my said daughter and such children as he may
have by her. Witness my hand and seal, this June 8th, 1871.
'*Te8t : C. G. Samuel. W. L. Prentice."
The note to secure which this instrument was given was
described therein as payable to "W. L. Prentice or bearer."
The defendant showed for cause as^ainst the foreclosure :
1. The general issue. 2. That tlie transfer was made
after the i.iaturity of the note, and was without considera-
tion. That it was voluntary, and made when Prentice was
insolvent. 3. That Prentice was, at and before the trans-
fer, indebted to defendant $2,957.60, besides interest, for
money advanced to him for his use in the partnership of
Elliott & Prentice, which began on December 10th, 1871.
Also various items of indebtedness arising from expenses
incurred and losses in the business of said iirm.
66 SUTREME COURT OF GEORGIA.
Elliott v^ Deasoo.
The evidence sliowed that the note and mortgage, at the
time of the transfer, were delivered by Prentice to one Sam-
uel for the use of Mrs. Deason, he being her brother-in-law ;
that the papers have been in his possession ever since. Mnch
testimony was introduced on the subject of the partnership
relations of Prentice & Elliott, advances by Elliott for the
firm, losses in cotton transactions, and.expenses of litigation,
all of which is deemed immaterial here.
The jury found for the plaintiff. The defendant moved
for a new trial on the following grounds:
1. Because the defendant proposed to prove by Samuel,
one of plaintiff's witnesses, that the mortgage and note sued
on had never been delivered to J. T. Deason, the trustee
named in the assignment on the note and mortgage, and
that he had never seen either of them, and the court refused
to allow this proof to be made.
Note. — The court did not refuse to allow the defendant
to prove any distinct fact connected with the delivery or
possession of the note and mortgage.
2. Because the court refused to allow the defendant to
show by D. S. Printup, that the record offered in evi-
dence by the plaintiff of the suit of John Inman against
Elliott, was but a part of the record of that suit, and
because the court admitted that record in evidence against
the objection of the defendant's counsel that the certificate
of the clerk did not show that it was a copy of the whole
of said record.
3. Because the court charged the jury as follows: "The
plaintiff alleges that the note and mortgage were assigned
before the note was due — it is for the plaintiff to show this.
If this is shown, or if the transfer was for value, and be-
fore the maturity of the note, and without notice of any
existing equities between Elliott and Prentice, then the trans-
fer would be good, and the plaintiff would be entitled to re-
cover."
4. Because the court charged the jury as follows : "If
the transfer was made on the papers and they were not de-
SEPTEMBER TERM, 1879. 67
Elli'tt vti. D a5on.
livered, then the defense set up would be good up to the
time the p«nper6 were delivered and as to such transactions
as occurred before delivery, but if the note and mortgage
were delivered to Mr. Samuel for Mrs. Deason, and she
knew it, and he held them for her, then she would be liable
only to such equity as existed at the time of such delivery."
5. Because the court charged the jury as follows : ''You
will go further and inquire whether Elliott is a creditor of
Prentice, and if the indebtedness arises out of the partner-
ship. Has that partnership been settled by a judgment of
a court? Unless the partnership has been settled by a judg-
ment of a court, how is it to be ascertained that Elliott is
a creditor? If there has been no judgment of a court, then
the defendant would have to show that Prentice made the
transfer to shuck himself, to strip himself of his property
and put it where a creditor could not get it."
The motion was overrnled and defendant excepted.
J. Branuam ; Daniel S. Printdp, for plaintiff in error.
0. EowELL, for defendant.
Bleckley, Justice.
1. The uncertainty in the note is aided by the mortgage.
In the former a blank was left suitable to the insertion of
the word bearer or order; and in the latter, the note is
described as payable to the payee or bearer. We think
there is no doubt that both documents should be treated as
negotiable paper in a commercial sense.
2. The holder of a negotiable instrument has a right to
dispose of it before or after due, and with or without re-
ceiving value. If, after ho has parted with it bona fde^
matter arises which would be appropriate as a set-off were
he still the holder, and if such matter springs out of trans-
actions wholly disconnected with the paper or the contract
on which it is founded, his transferee, the new holder, will
not be affected. Code, §2904.
68 SUPREME COURT OF GEORGIA.
Elliott vf. Deason.
3. Delivery can be made to the absent. Any friend may
receive the instrument on behalf of the transferee or ben-
eficiary. This followed by ratification would sufiice.
4. A married woman may, in Georgia, take and hold
property just as another person. When a morto^ge is as-
signed to her, and the note to a naked trnsteefor her use, she
is the owner of both, and may foreclose in lier own name.
5. It is not impossible for a transaction to be founded on
both a valuable and a good consideration. Money maj' be
the motive in part and aflFection in part — the two combined
may make up the whole consideration. The assignment of
the mortgage bore date before the debt matured, and pur-
ported to be for value received, and for love and affection.
There is a general presumption that negotiable paper, in
the hands of a transferee, passed for value and before due,
unless the contrary appeal's. This was enough to warrant
the court in touching upon that subject in charging the
jury.
6. If advances were made by Elliott to carry on the bus-
iness of a partnership of which he and Prentice (Mrs. Dca-
son's father) were members, the probability is that they
were not made on the individual credit of Prentice, but on
the credit of the firm. If the firm received the advances,
the firm would be the debtor for them, and Elliott's reim-
bursement would involve a settlement of the partnership
accounts. The balance ought to be ascertained, either out
of court or in court.- And, certainly, to have an account-
ing in court, the parti^ers ought both to be present as parties
to the litigation. Here only one of them was present, and
for that reason, if for no other, the settlement of the part-
nership account was, in this suit, impracticable.
7. The transcript from the record of the United States
court could not be proved by parol to be incomplete. On
the other hand, the clerk's certificate was quite insufiicient
to authenticate it. The certificate should have gone much
fnrther than it did. But the verdict was correct, and the
illegal evidence may now be ignored.
Judgment aflSrmed.
SEPTEMBER TERM, 1879. 69
Da via ei al.^ commiRsioners. vs. Home.
Davis et aL, commissioners, vs. IIorne.
If the time covered by a contractor's bond for keeping in repair a
county bridge has expired, and the county does not make a new
contract for that purpose, but undertakes to keep the bridge in
repair itself, ii will be liable for damages resulting from a failure
to do so.
Bleckley, Justice, dissented.
County matters. Roads and bridges. Damages. Before
Judge Simmons. Houston Superior Court. November
Adjourned Term, 1878.
Reported in the decision.
E. Warrkn ; Davis & Riley, for plaintiffs in error.
Duncan & Miller, for defendant.
Warner, Chief Justice.
This case came before the court below on a ceHio^^arl
from the county court of Houston county. On the hear-
ing of the same the court sustained the certiorari and
awarded a judgment against the defendants for the sum of
$50.00 and costs; whereupon the defendants excepted.
It appears from the evidence in the record that Jordan
Home sued the county of Houston to recover damages on
account of his horse having fallen through a defective
bridge in said county. It was admitted that the bridge had
been built by a contractor; that the county authorities had
taken from him the bond and security required by law to
keep it up, etc., for seven years; that the seven years had
expired, and that since that time the county had undertaken
to keep it in repair itself ; and the question is whetlier, upon
this statement of facts, the county was liable for the dam-
ages sustained by the plaintiff. This case comes within the
ruling of this court in Mackeyvs, The Ordinaries of Mur-
70 SUPREME COURT OF GEORGIA.
I
I
Pa vis et al., commiiisloners, w. Home.
ray and Whitfield Counties^ 59 Oa.^ 832, and must be con-
trolled by it.
Let the judgment of the court below be affirmed.
Jackson, Justice, concurred, but furnished no written
opinion.
Bleckley, Justice, dissenting.
In the scheme of the Code, one who has erected a public
free bridge at the expense of the county, under contract
with the ordinary, is responsible for its safety in so far as
faithful construction and repairs will render it safe; and
this responsibility continues through at least seven years,
and may continue through a longer period if his contract
so provides. His liability for injuriea sustained in using
the bridge is not to the county, but directly to the pei-son
or persons injured, and it exists whether he has given lx)nd
and security or not. In case the ordinary has neglected his
duty in respect to taking bond and security, the county is
also liable. The contractor may be liable and the county
not; but the county is never liable unless the contractor is.
The first step, therefore, in making a case for recovery
against the county is, after proving the injury, to show that
it is an injury for which the contractor is liable ; the next
step is to show that the ordinary has failed to take from him
the bond and security which ought to have been taken.
These two steps will fix liability upon the county, and noth-
ing else will. The Code makes the county stand as surety
for the contractor if there has been official neglect to exact
other security ; but the substituted surety stands bound no
longer than the primary and proper security would have
been bound if the official neglect had not occurred. In 59
Oa.^ 832, the injury happened after seven years from the
completion of the bridge had expired, and there was no
evidence of any undertaking by the contractor which made
it his duty to keep up or repair the structure through a
longer period than seven years ; for this reason, there was,
^j^ij
SEPTEMBER TERM, 1879. 71
Denham vs. Kiikiiairick.
on the part of the plaintiff in tiiat ease, a failure to take the
first step above indicated, and consequently the action, as I
then thought and still think, was not maintainable. In the
present case, there is a failure in both steps, and I have not
the slightest doubt that the law is with the county, and
that the judgment ought to be reversed. Code, §^G7U, 671,
690, 6 >1 ; 41 Ga.^ 225. The theory that the various coun-
ties have been made liable by the Code for injuries 8u>-
tained on defective bridges generally, as well as in the
instances expressly enumerated in sections 600 and 691,
seems to me quite untenable. Freeholders of Sui^sex V8,
Strader, 18 N. J. Law (3 Harrison), 108. Fortunately, the
constitution of 1877 will, as to injuries sustained after its
adoption, protect the tax-payers against all pecuniary conse-
quences of any misconstruction of the Code, for the pay-
ment of damages is not among the objects for which county
taxes may be assessed and collected.
Denham vs. Kirkpatbigk.
1. An action for damages transferred from the county court to the su-
perior court because the phiintiff's title to land was involve i, goes
in itfl entirety to the superior court, and will be fully and finally
disposed of therein.
2. A deed tainted with usury is void as title, and if good as an equita-
ble mortgage construed with bond to recovery, it is good only to
BC'-ure the principal debt
3. Where the holder of such a deed, on the sale of the land by the
sheriff, slates he holds an equitable mortgage for fifteen bun-
dled dollars and that the purchaser will l»uy 8u!»ject to that incum-
brance, and becomes a bidder himself, with full knowlclge that five
hundred doihirs of the fifteen hundred is for inlerot taken by him-
self for one year's loan of one thousand dollars, and the land is
knocked oH to him, and another bidder who contested with him
would have given five hundred dollars more for the land, had
the mortgage been represented as to secure but one thousand dol-
lars:
Eeldf that the equitable mortgagor is entitled in an action plainly and
distinctly setting out the above stated facts and proviug them on
72 SUPREME COURT OF GEORGIA.
Denham V9. Ktrkpatrlck.
Ihe trial, to recover from the buyer the difference between the price
at which the land was bid off and what it would have brought but
for the misrepvesentation, with interest up to the trial.
4. It is always right for the court, before their discharge, to have the
verdict of the jury put in proper form, the substance thereof not
being changed.
Courts. Jurisdiction. Title. Usury. Mortgage. Dam-
ages. Practice in the Superior Court. Before Judge Sjteao.
Richmond Superior Court. April Term, 1879.
Kirkpatrick brought suit in the county court of Rich-
mond county, against Denham. The declaration alleged,
in brief, the following facts : PlaintiflE was the owner of a
lot in the city of Augusta, which was levied on and brought
to sale in June, 1876,-under dkjl.fa. against him. Just as
the lot was exposed for sale by the sheriff in the presence
of a large number of bidders, defendant caused his attorney
to announce publicly that he held an equitable mortgage
for $1,500.00 on the place, and that the purchaser would
take subject to this lien, — the attorney exhibiting at the
same time a paper as such mortgage. This statement was
false, fraudulent and malicious, and, by frightening bidders,
enabled defendant to buy in the land at a price much below
its vs^lue, thereby damaging plaintiff.
This declaration was filed in the county court, Septem-
ber 14, 1878.
Defendant pleaded the general issue, the statute of limi-
tations, and estoppel from claiming title by reason of a
deed conveying the property out of defendant before the
sheriff's sale.
On account of the collateral issue in regard to the title,
the case was transferred to Richmond superior court.
(Acts 1874, p. 79). When the case was called in that court,
counsel for defendant insisted that nothing was for trial
thero except the collateral issue of title. The court over-
ruled this position and ordered the case to proceed.
The evidence showed substantially the following facts :
SEPTEMBER TERM, 1879. 73
t
Df>nhain vs. Kirkpatrick.
In December, 1875, plaintiff, who then owned the place,
borrowed Sl,000.<iO from defendant. For this he gave his
note for $1,500.00 due at twelve months, and to secure this,
made a deed for the lot to defendant, and took a bond for
re-con vejance upon payment of the note. At the sheriff's
sale defendant's attorney made an announcement, or had it
made. lie testified that it was stated that defendant had
a deed to the property the consideration of which was
$l,500.00,and would claim under it as an equitable mortgage,
and that purchasers would buy subject to whatever incum-
brance defendant might have under the deed. Witnesses
for plaintiff state the announcement as it was set out in the
declaration. Defendant himself became a bidder. One
Wilson. was also a bidder. The latter was willing to pay
$3,700.00 for a clear title ; considering that the incum-
brance would be $1,500.00, he bid $2,200.00, and, defend-
ant bidding $2,210.00, he became the purchaser. Had it
been announced that the incumbrance was $1,000.00 Wil-
son would have bid $2,700.00.
The jury found for plaintiff $588.95. Defendant moved
for a new trial on the following grounds, among others :
1st. Because the court erred in holding that the whole
case was before the superior court for trial.
2d. Because the court refused to charge, as requested by
defendant's counsel, "that to support an action for slander
of title, it must be shown that the statement made by de-
fendant to the injury of the title, was both false and mali-
cious;" but instead of charging as so requested, qualified
the same by saying " that if the statement was false, that
was, alone, sufficient to authorize the plaintiff to recover ac-
tual damages, and if malicious, then the plaintiff could also
recover exemplary damages."
3d. Because the court refused to charge, as requested by
defendant's counsel, ''that if the case is not an action for
slander of title, then it is an action for words, and if not
brought within one year from the time the action accrued,
then it is barred by the statute of limitations."
74 SUPREME COURT OF GEORGIA,
*' Den ham rs. Ki>kpairirk.
4th. Because the court refused to char<j:e the jury, as re-
quested by defendant's counsel, 'Hhat the plea of usury is a
personal plea, and until Kirkpatrick, the plaintiff in this
case, availed himself of this plea, Denham, the defendant,
could in good faith and without malice or falsehood, claim
that there was due him in the transaction fifteen hundi-ed
dollai-s."
5th. Because the court erred in charging the jury "that
if they found from the evidence that §500.00 of the sum
named as the consideration in the de^d from Kiikpatrick to.
Denham was usury, then said deed was void as title, and
the statement, if made by defendant or his counsel at the
sale, that he held an equitable mortgage upon the property
for fifteen hundred dollars, was false, and the plaintitf was
therefore entitled to recover whatever actual' damages he
may have sustained ; and further, if the jury found that
the statement was also malicious, then plaintiff is entitled
besides to exemplary damages."
6th. Because the verdict was contrary to law and evi-
dence.
7lh. Because the court erred in the following : When
the jury returned to the court-room with their verdict it
was as follows :
" We, the jury, find for plaintiff the sum of four hundred •
and ninety dollars, with interest from date of the bale of
the proi)erty."«
Counsel for plaintiff arose, and stating that he desired no
interest to be expressed in the verdict, moved the court to
instruct the jury, if they meant to give the interest as dam-
ages to plaintiff, to retire to their room and so amend the
verdict as to include all the damages in one general verdid
of damages. Whereupon the court so instructed the jniy,.',
and they retired to their room and immediatelj' afterwaidfit'
returned with the following addition to their finding:
*'The aniount of damages with interest is five hundred and
eighty-eight dollars and ninety-five cents." Counsel for
plaintiff btill objecting to the form of the verdict, the coaft
SEPTEMBER TERM, 1879. 75
Denham vi. Kirkpatrir^c.
^Lrected the foreman, if such was the intention of the jury,
^ iocln<ie or erabody the whole amount in one general ver-
^iot roa^ding in damages. Whereupon the foreman, with-
^ut t;lie jury retiring, wrote the following verdict over his
^arrio &8 foreman : " We, the jury, find for plaintiff the
^Om of five hundred and eighty-eight dollars and ninety-
^^ o^iitfi damages," — which was read aloud by the clerk,
^ ^^^ "fclii.^ jury being in their seats and all of them tacitly
^^^^^t^iwTk^ to the verdict so amended, but the court not in-
■^Hirixi^- j)articularly of the balance of the jury if such was
®"* "^^^x-dict; all of which was objected to by defendant's
con
^r«^o:r-.
:unotion was overruled, and defendant excepted.
& Verdbry; H. Clay Foster, for plaintiff in
.A.BBEN Mays, for defendant.
, Justice.
hen this case for damages, arising upon misrepre-
'ion of title of defendant in Jl.J^a. to his land, to the
^^^^^^ of spreading too heavy a cloud over it, was trans-
v^TT^d to the superior court from the county court as in-
'^oVving title to laud, the entire cause was transferred, and
\\ie superior court was right to retain jurisdiction of the
entire case.
2. Not only our Code of laws (omitted from the Code of
1873 because there was at that date no law against usury, but
foond in the Code of 1868, §2025) but frequent rulings of
this court, makes deeds for land tainted with usury void,
if used to transfer title ; and no recovery in ejectment could
be had on such a deed. • ,
We have not decided that such a deed with bond to re-
convey would be good for anything as an equitable mort-
gage. The nearest approach to such ^ decision is to be
found in Sugart V8, Mayes, 64 Gaij 554; but ^tHefe iti is
76 SUPREME COURT OF GEORGIA.
Dcnham vs. Kirkpatrick.
merely intimated that such might be the equity of the case.
However that may be, it is quite certain that the deed could
only be hold good as a security for the legal part of the con-
sideration, and that in this case, under the act of 1875, p.
105, is only the principal. So there is no error in the rul-
ing of the court on these points.
3. *But the main question in the case is, whether the
pleadings and facts proven under them make such a case as
entitled the plaintiff to recover ? Thfe defendant says that
the suit is for slander of title under section 3025 of the
Code, and that the facts do not sustain such an action, and
that the charge was inapplicable to the action for slander of
title. The reply is that the action is complaint, or, as it
would have been termed at common law, an action on the
case founded on equitable principles, for the recovery of
money which in good conscience the plaintiff ought to re-
cover. The declaration alleges, in substance, that defend-
ant represented at the sale of the plaintiff's property by the
sheriff that he held an equitable mortgage thereon for fif-
teen hundred dollars, whereas, in truth and fact, if he held
a mortgage at all, it was for only one thousand dollars ; that
he made this representation with a fraud nleut view and in-
tent to bid for the land at the sale and to get it at a less
price than it was worth ; that he did bid, and it was knocked
off at a less price to him, and that plaintiff was entitled to
recover from him the difference between what the land
brought and what it would have brought but for his false
and unfair statement. The allegata and probata agree bet-
ter in this case than any I believe I have ever reviewed, and
if the allegata entitle plaintiff to recover, his case was fully
made out by the proof.
If one interferes with a judicial sale, or any other sort of
rWle^ by statements by which he gets the property at less
ffhan others would have given, he must state the truth, the
' \DhoLe truthy and nothing but the truth. This defendant
stated that he had an equitable mortgage for fifteen hun-
dred dollars, whereas five hundred of it was interest for the
SEPTEMBER TERM, 1879.
77
Denhum vs. Kirkpatrick.
loan of one thousand for one year ; which made the truth
to be, if he had any mortgage at all, tliat he had one only
for one thousand dollars. Thereby he got the land for
$500.UO less than another bidder swore he would have given
for it. lie ought not ex wqico et hono to keep tliis money,
and the verdict is just and right. When one thus interferes
with a judicial sale particularly, he must not cloud the title
of defendant in Ji.fa, without stating all the truth, espe-
cially must he not do so for the purpose of getting an ad-
vantage at the sale at the expense of other bidders and of
the defendant mfi.fa.
In respect to the view that the pleadings in this state
have been held too loose in past adjudications, and that they
are too loose here, we have but to say that whatever they
may have been in other cases, in this the plaintiflE has most
clearly and distinctly set forth his cause of action, giving
in it every fact which makes his equitable case on the decla-
ration full and complete, and ample to authorize a recovery.
This is all that he hiis ever been required to do in this state
since the judiciary act of 1790. Cobb's Digest, pp. 470-
486.
And the struggle has always been with our legislature to
make pleadings as simple as possible ever since that act of
1799, and so far from our courts innovating upon law when
they sustained such pleadings, they have co-operated with
the law-making power when they have done so ; and have
generally endeavored to conform to special pleading as far
as conscience would permit them to go. And now that the
legislature, not the courts on their own motion, have broken
down the barriers between law and equity by distinctly en-
acting that no suitor shall be driven into equity to enforce
any right which law or equity may give him, but may elect
either forum — Code, §3082 — there can be no doubt of the
legality of this suit and the rightfulness of this recovery ;
and if anybody finds fault and wishes the law changed, let
each an one go to the law-making and not to the law.
expounding authorities.
i
78 SUPREME COURT OF GEORGIA.
Cnyler st al. vf . Wsyneb adminlatntor.
The verdict is not for panitive, bat actual damage ; there-
fore it does not matter what the court charged on that sub-
ject, though it would seem, as this was a tort, or at least in
the nature of a tort, the judge was not far wrong under oar
€!ode, section 3066.
4. The substance of the verdict was not altered. Onlj
the interest found by the jury to be paid as damage sepa-
rately from the principal was consolidated with it in tho
presence of, and by the consent of, the jury before their
discharge.
Judgment affirmed.
OuYLBB et al. vs. Watns, administrator.
1. When parties to a proceeding to sell realty for partition who were
served, afterwards, on a bill filed by one in interest who was not
served, to set aside the sale as to him, answered that they were
"content to stand by it so far as their interest was concerned in
said proceeding and to abide its result/* they cannot subsequently
attack the sale on the ground of want of service of all parties.
9. Where a bill was served on a minor, and her step-father answered
as her proehdn ami, she would be bound by the decree in the ab-
sence of any fraud.
3. In all cases of the appointment by the ordinary of the guardian of
a minor— whether the clerk of the superior court or some other
proper person — bond should be required ; but the grant of letters
without taking bond would not be void as against a bona fide pur-
chaser under the guardian, without notice of the want of a bond.
f
Partition. Parties. Equity. Minors. Before Judge
Tompkins. Chatham Superior Court. October Term, 1878.
Reported in the decision.
T. M. NoBwooD ; Wrioht & Fsatubbston, for plaintiffs
in error.
J. B. Sausst ; Geobqb A. Mbroeb, for defendant.
SEPTEMBER TERM, 1879.
79
Cnyler 4t cU. vs. Wayne, admiaistrator.
Wabnxb, Chief Justice.
The sait below was an action of ejectment in Chatham
snperior court, brought by Thomas H. Cuyler, Estelle
Smith (formerly Cnyler), and Georgia C. Branham (form-
erly Cuyler), against John C, Ferrell, to recover an undi-
Yided half of certain real estate situated in the city of
Savannah, and also the rents thereof since October 1, 1863,.
of the yearly value of $3,000.00. Suit brought on Decem-
ber 30, 1869.
Ferrell, after suit was brought, died, and Henry 0. Wayne,,
his administrator, was made party in his stead, at the Jan-
uary term, 1872.
The defendant pleaded the general issue and the statute
of limitations.
The case came on for trial on January 23, 1879, before
his honor, Henry B. Tompkins, judge of said court, presid-
ing, when, by the written agreement on both sides, the
whole case was submitted to the court for trial without a
jury, except as to the amount of mesne profits, which was
referred to a jury and assessed at $500.00 per annum for
as many years as the court should decide plaintiffs were en-
titled to recover.
The plaintiffs introduced the will of Jeremiah Cuyler
conveying the entire property, one undivided half of which
is involved in this suit, to certain daughters for life, with
remainder to his two sons John M. and Telamon Cuyler,.
in fee. It was shown that the last of the life tenants died
in 1863, and that the title then vested in possession in John
M. Cuyler, as to one undivided half, and as to the other
half in the three plaintiffs, the children of Telamon Cuyler,.
he having previously died. Tlie defendant then admitted
that he or his intestate, Ferrell, had been continuously in
possession of the property since August 14, 1863, and that
they claimed title under or through the plaintiffs.
It was proved that Thomas H. Cuyler was born on Janu-
ary 29, 1845, and Estelle Cuyler on January 24, 1851.
80 SUPREME COURT OF GEORGIA.
Cuyler et al. rt. Way do, administrator.
S. P. Bell testified that he was a real estate agent and
knew the property in dispute. The entire property, one
undivided half of which is sued for, had been worth for
rent since the close of the war an average annual sum of
■$2,500.00 ; was worth much moi'c for several years after
the war, but is now worth less.
Plaintiffs closed.
The defendant introduced the following record :
PARTITION PKOCEEDINGS.
"Georgi.v— Floyd County.
•*To Jolm II. Freeman, guardian of Thomas Cuyler, and A. B, Ross,
guardian of Estelle Cuyler, minor children of Tclamon Cuyler, de-
ceased: You are hereby notified that I shall applj'to the superior court
to he held in and for the counly of Chatham on the second Monday in
May next, for the appointment of partitioners to divide the lot of land
fronting on Broughton and Bull streets, in the city of Savannah, de-
vised by the will of Jeremiah Cuyler, deceased, to his daughters for
life, remainder to Telamon and John Cuyler and their heirs, said life
estate having terminated, and that an order for the sale of said lots
will be prayed for.
(Signed) J. Bkat^ham, Jr.,
Trustee Georgia C. Branham, etc,
"April 8, 1803.
* 'Georgia— Floyd County.
*'We acUnowledge due and legal service of the within, and waive all
other and further notice. This April 17, 1863.
(Signed) John R. Fukeman, Ouardian for Thoi. Cuykr,
A. B. Koss, Guardian for Estelle Cuyler.
«'Filed May Ifi, 18G3. W. IT. Bulloch, Clerk 8. G. a C"
Then follows a petition to the superior court of Chatham
coniity, signed by J. Branham, Jr., trustee for Georgia C.
Branlumi, tihovvin<Tj that the property, one undivided half of
which is involved in the present suit, had vested as to one
undivided half in John M. Cnjler, and as to the other
half in the children of Telanion Cuyler, deceased, to-wit:
"Thomas II. Cuyler, minor, of whom John R. Freeman is
guardian ; Estelle Cuyler, minor, of whom A. B. Ross is
guardian, and Georgia C. Branham, formerly Georgia C.
Cuyler, the wife of petitioner," and of whom the petitioner
•was trustee. Tliat the said John M. Cuyler and the said
SEPTEMBER TERM, 1879.
81
Cuylcr et al. vs. Wayne, administrator.
Freeman, as guardian of Thomas H. Ciiyler, and the said
Eoss, as guardian ofEstelle Ciiyler, and the petitioner, are
the common owners of said property, tlic said guardians
and the petitioner being entitled to one-half, making the
petitioners share one-sixth of tlie whole. Tlie petitioner
was desirous of liaving the property j)artitioned between
the aforesaid parties and himself; that it could not be di-
vided fairly by metes and bounds on account of improve-
ments. Therefore he prayed for the appointment of com-
missioners to sell the property for divi.<ion as by law in
such case provided; states '* that notice of this ap]>lication
has been given, a copy of which is hereto annexed." Dated
Mav 11, 1803.
Then follows the order of the court, reciting the sub-
stance of the petitir)]! ; that the petitioner had ])roved liis
title to one-sixth of the ])roperty ; that a division by metes
and bounds was impracticable; ^*nnd it further appearing
that the notice required had been given,'' a sale of the
property is ordered; and Geoi'ge W. Wylly, Thomas Pui'se
and John Williamson are appointed to conduct said sale,
and directed to sell at public outcry, etc., after advertising
thirty days, and to make return of their proceedings to the
next term of said court. Dated May 10, 1803. (Signed)
*'W. B. Fleming, Judge E. D. Ga. *Filed May 10, hS03.
William 11. Bulloch, Clerk, etc."
Next follows the return of the commissioners, statinir
"that in pursuance of the terms of the decree," etc., the
proper t}' '^ was duly exposed for sale before the court-house
in Chatham couJity, and brought the sum of $30.0i)0.i)0."
That the expenses of the sale were 8l>'243. 50, leaving a
bala!K-c of S34,75G.50. Of this they had paid to J. Bran-
haui and J. R. Freeman, guardian of Thouias 11. Cuyler,
and to A. B. Boss, guardian of Estelle Cuyler, eacli the sum
of $5,807.83, leaving a balance of $17,333.00, or one-half
the proceeds of the sale, which, they say, "under the will
of Jeremiah Cuyler, is devised to Dr. John M. Cuyler, a
rfiurgeon in the army of the United States." This sum they
a
r
82 SUPREME COURT OF GEORGIA.
Cnyler «l ol. w. Wayne, advinistntor.
had invested nnder the cnrreQcy act of the Confederate
States in 4 per cent, certificates, etc Report signed by the
commissioners, and dated June 1, 1864.
The defendant next introduced the deed made by said
commissioners in pnrsnance of said sale conveying the
property to John C. Ferrell, the defendant's intestate, dated
Angnst 14, 1863, which deed the plaintiffs admitted to be
regular and conveyed the title if the sale was legal or bind-
ing on them.
It was also in open court admitted by the plaintiffs that
Branhara, in right of his wife, and Freeman, as guardian of
Thomas H. Cnyler, and Boss, acting as guardian of Estelle
Cnyler, received from the commissioners in the partition
proceedings, on October 1, 1863, the proceeds of the sale
of the property, the parties having come to Savannah for
that purpose ; that on the same day they invested the money
(Confederate currency) in a farm in Floyd county, taking
the title to them in their said representative capacities;,
that on October 29, 1868, Estelle Cnyler was married to-
H. H. Smith. On June 7, 1869, Branham and wife, and
Smith and wife, Estelle, and Thomas H. Cnyler, exchanged
the farm for a house and lot in Rome, Georgia, all joining
in the deeds. That Branham soon after bought Thomas H.
Cuyler's interest in the house and lot for $700.00 or $800.00.
Smith and wife, Estelle, sold their interest on December 9,
1870, for $700.00, and invested the proceeds in part pur-
chase of a lot in Rome, taking the title to Smith, as
trustee for Estelle, on January 12, 1871, on which lot Smith
afterwards built a house, and he and his family have con-
tinnonsly lived there since.
Ross also acted as guardian for Estelle in the division of
some negroes of the estate of Telamon Cuyler in July, 1862,
the day after he was appointed guardian ; but he was &
mere nominal party to the proceeding, and did not receive
the n^roes, which remained with Estelle's mother and step-
father, D. M. Hood.
It waa admitted by the plaintiffs that J. R Freeman was-
SEPTEMBER TERM, 1879. 83
Cayler it al. vt. WajDe, administrator.
regularly appointed and qualified as guardian of Thomas
H. Cnyler on July 7, 1862, by the ordinary of Floyd county.
The defendant also introduced a transcript of the record
of the proceedings had in the court of ordinary of Floyd
county for the appointment of A. B. Ross as guardian of
Estelle Cuyler.
The first thing in said proceedings is the order of the
ordinary, which, after reciting that citation had issued re-
quiring all persons concerned to show cause why guardian-
ship should not be granted to A. B. Boss, or some other fit
person, for the property of Estelle Cayler, and no cause
being shown, etc., proceeds : " It is ordered by the court
that letters of guardianship issue to A. B. Ross, clerk of
the superior court of the county aforesaid, according to the
statute in such case made and provided, he taking the usual
oath of oflSce." Signed by the ordinary, and dated July 7,
1862.
Then follows the oath taken by Boas, as guardian, in the
usual form ; also the letters of guardianship, which are
signed by the ordinary, and are addressed to " Absalom B.
Boss," simply. Both dated July 7, 1862.
The defendant admitted that Ross never gave any bond
as guardian of Estelle.
The defendant, Wayne, testified that he, as administra-
tor, took charge of the property in dispute in 1871 ; that
the entire property had been worth since then an average
rent of $175.00 per month ($2,100.00 per annum), but the
taxes, insurance and repairs had been about $1,000.00 a
year, exclusive of commissions for collecting the rent.
The defendant also introduced the record of a suit in
equity in the United States circuit court for the southern
district of Georgia, brought in February, 1867, by John M.
Cuyler, against D. M. Hood and his wife Frances, "Estelle
Coyler, a minor," Joel Branhara and Georgia C, his wife,
and John C. Ferroll. The bill states that the complainant
is a son of Jeremiah Cuyler ; sets forth the will of Jeremiah,
84 SUPREME COURT OF GEORGIA.
Cuyler et al. vs. Wayne, administrator.
and bis title under that will to one undivided half of the
property therein conveyed, and the title of the heirs of his
brother, Telamon Cuyler, to the other half, as shown in
former part of this brief of evidence, (Frances Hood hav-
ing been the widow of Telamon Cnyler, bat her interest
and that of her husband, D. II. Hood, having been con-
veyed to her children, as shown in the partition proceed-
ings) ; that Thomas II. Cuyler, tlic remaining heir of Tela-
mon, then resided out of the jurisdiction of the court, and
could not be served ; that complainant has heard that some
of the parties during the war 'had instituted proceedings
and had the property sold for partition, and that John C
Fcrrell had purchased the property at such a sale and paid
for it in Confederate currency ; that complainant was at
that time a surgeon in the United States army, and engaged
in the discliarge of his duties as such, and had no notice
whatever of such proceedings, and the same are not binding
on him, etc. lie prays that the ])roperty may be parti-
tioned, that he may pjssess his half in severalty, and that
an account be taken of the rents, and for general relief.
There is a return of the marshal showino: that the de-
fen dan ts were served.
The defendant John C. Ferrell answered the bill, setting
up as his defense his purchase of the property at the sale
made under tlie decree of Chatham superior court in the
proceedings instituted by J. Branham in 1 863 for partition,
hereinbefore set forth.
J. Branham and wife, Georgia C, and Estelh Cnyler,
also answered the bill, in which they admit the complainant's
allegations, give a statement of the proceedings and sale
for partition, and reasons why they desired a partition, and
state that they are willing to abide the same. In the con-
eluding part of the answer it is stated that B. M. Hood an-
swers for Estelle Cuyler as ne.\t friend, she being still a
minor.
The decree rendered October 26, 186S, is as follows:
*• Tliis cause came on to be heard at this term of court
SEPTEMBER TERM, 1879.
85
Cuylcre^ al. vs. Wayne, administrator.
and was argued by counsel, and thereupon, on consideration
thereof, it is ordered, adjudged and decreed as follows :
"First. That partition be made of the premises in said bill
of complaint described, so that one moiety thereof shall be-
long to the complainant in severalty, and be to him delivered
for his several possession and enjoyment forever.
"Second. That William R Boggs, A. N. Wilson and A.
S. Ilartridge, Esqrs., arehei'eby ap|)ointed commissioners to
make such partition in terms of the law, and report their
action to the next term of this court. And if said com-
missioners shall find it ihi practicable to divide said prem-
ises into two equal moieties so that one of the same ma}' be
assigned to the complainant, then they shall report that fact
to the court, and abstain from further action until further
order.
"Third. That E. J. Harden, Esq., is liereby appointed a
master in chancery 7>?v> /utc vice in tliis case, to take the ac-
count between the complainant, John M. Cuyler, and the
defendant, John C. Ferrell, of all rents and profits, if any,
that may be due from the latter to the f<jrmer, whether by
actual receipt of rents and prolits issuing out of said prem-
ises, or by reason of the occupation of the premises by the
defendant himself, charging said defendant with one moiety
of the whole, and giving him credit of one moiety of the
actual and necessary expenses incurred and paid by him
touching said premises."
On November 10, 1SG8, two of the commissiuners named
in the foregoing decree, report to the court that they find
it impracticable to divide the premises into two equal moie-
ties.
On December 10, 1S72, the following deci-ee appears :
"John M. Cuyler, coinpkiinant, ']
vs. I T T^
IT n ^17 1 • • . * M" Equity.
Henry C. Wayne, administrator, | ^ *^
John C. Ferrell, defendant. J
"This cause came on to be further heard at this term and
was argued by counsel, and therefore upon consideration
86 SUPREME COURT OF GEORGIA.
CuyJer et ai. vt. Wajne, tdmlnistntor.
thereof it was ordered, adjudged and decreed as follows, viz :
That the lots nambers one and two, Hack's Tything, Perci-
val ward, in the city of Savannah, with the improvemento
and appurtenances, belong in equal undivided moieties to
the said complainant and his assigns and to the said defend-
ant as the administrator of the estate of John C. Ferrell, as
of and from October 20, 1868, the date of the original de-
cree in said cause. That the said parties so holding the
said property as tenants in common shall determine among
themselves as to their ownership respectively of the said
lots and appurtenances, equalizing the value thereof accord-
ing to the election which may be made in the manner pro-
vided by the commissioners appointed by this court, the
final report of said commissioners having been adopted by
the court. It is further ordered that the complainant do
recover his costs against the said defendant."
On the trial of this case the court rendered a finding in
favor of the defendant, and ordered that the defendant
have leave to enter up judgment against the plaintifis, and
judgment was so signed by counsel for the defendant. Date
of finding and judgment, January 24, 1879.
The plaintiffs on the same day moved the court to set
aside said finding and judgment, and for a new trial, on the
following grounds :
1. Because the said finding and judgment are contrary to
the evidence and without evidence.
2. The finding and judgment are contrary to law.
3. The plaintiff, Estelle Cnyler (now Smith), pending the
trial, in open court, proposed and offered to allow the $700.00
which had come into her hands from the proceeds of the
sale of the property for partition in 1863, and which she
found in her possession on arrival at majority, as shown by
the evidence, or the value of the Confederate money re-
ceived by Ross acting as her guardian from the sale of the
property, as a set-off against her share of the rents and
profits, or as a charge upon her share of the property in
favor of the defendant, if there should not be a sufficient
SEPTEMBER TERM, 1879.
87
Oijiet$t al., m. Wayne, admlDistrator.
amount of rents to cover the same; and she offered to
amend the declaration by adding to it this proposition and
offer. Bat the conrt rnled she conld not make such propo-
sition or amendment, and declined to consider the same.
The motion for new trial was overrnled and the plaintiffs
excepted.
Two questions were mainly insisted on here by the plain-
tiffs in error : First, as to the validity of the sale of the
property for partition by the judgment of the court in May,
1863, on the gronnd that John M. Cuyler was not a party
to that proceeding. Second, that the sale and partition of
the property was not binding upon Estelle Cuyler, now
Mrs. Smith, because she was a minor at the time, and was
represented by Boss, wh9 had been appointed her guardian,
but who had not given bond and security as such.
1. In relation to the first question, whether the sale of
the property for partition was legal and valid or not, the
plaintiffs, in their answer to the bill filed against them and
the purchaser of the property by John M. Cuyler, ratified
and confirmed it, for they state in reference thereto " that
they are content to stand by it so far as their interest is
concerned in said proceeding and to abide its result."
2. The bill was served upon Estelle Cuyler, and was an-
swered by D. M. Hood, as her step-fatlier and next friend,
or, as he describes himself in his signature to the affidavit to
the answer, " D. M. Hood, prochei/n ami of Estelle Cuy-
ler," and she is therefore bound by it as well as the other
parties thereto. 53 Oa,^ 514.
8. We might rest our judgment in this case right here,
but as the question was discussed on the argument as to
whether a guardian was required to give bond and security,
especially when the clerk of the superior court is appointed
a guardian for minors by the ordinary, or whether it is dis-
cretionary with the ordinary to require bond and security,
we will express our opinion upon that question. In our
judgment the law requires that bond and security should be
given in all cases on the appointment of a guardian by the
88 SUPREME COURT OF GEORGIA.
Watts A Bro. vs. The Savannah & Ogeechee Canal Co.
ordinary. Code, §1812. But the grant of lettereof guard-
ianship by the ordinary without taking bond, though erro-
neous, would not make the grant of the letters void as
against a bona fide purchaser who had no notice that a bond
had not been given. 13 Oa,^ 10. In the case under re-
view, Ferrell, the defendant's intestate, alleges that he was
a hanafi/le purchaser at the partition sale of the property
in dispute, and, as such, is entitled to be protected against
the claim of the plaintiffs on the statement of facts con-
tained in the record. There was no error in overrul-
ing the plaintiffs' motion for a new trial.
Let the judgment of the court below be affirmed.
Watts & Brother vs. The Savannah & Ogeeohkb
Canal Company.
An incorporated cannl company whose bubiness is to maintain and
keep open a waterway for the use of the public, taking toHs for
such use, and haying, at or near the terminus of the canal, basins
for the accommodation of its customers, with a usage or regulation
that timber which lies in the canal, or in the basin, for more than
fifteen days after the transportation is completed, shall be subject
to an additional charge at a fixed rate per month, is not liable, in
the absence of special contract, for the exercise of any care or dili-
gence in guarding or protecting the timber, beyond keeping the
canal and basins in good order; and if from rafts lying in the basins
or in the canal itself, sticks of timber be lost at any time, by theft,
sinking, or otherwise, without some wrongful act on the part of the
company or its servants (the burden of proving which is on the
owner), the company is not answerable for the damages.
Canals. Tort. Contract. Damages, Before Judge
Harden. City Court of Savannah. May Term, 1879.
Reported in the opinion.
J. R. Saussy ; P. W. Meldrim, for plaintiffs in error,
R. E. Lester, for defendant.
SEPTEMBER TERM, 1879.
S9
Watta & Bro. w. The Savaunoh & Ogeechee Canal Co.
Bleckley, Justice.
Tlie declaration allci^es that the defendant is a corpora-
tion of this state, havincr its principal place of business in
the city of Savannah, and has damaged the plaintiffs two
hundred dolIai*3 ; that the defendant was and is enirao^ed in
the business of canalage, affording, by njeans of its canal,
transportation from the river Ogeechee to the river Savan-
nah, and to and from intermediate points, charging and re-
ceivins: certain tolls ; that it has attached to and connected
with its canal certain ponds used as booms, for the safe-
keeping and custody of such timber as may be delivered to
it, charging and receiving compensation for the boomage
or eafe-keeping ; that the plaintiffs, in the year 1876, on
divers days (specifying them) delivered to it certain de-
scribed timber of the value of $106.37, for safe-keeping in
said booms ; that by reason of the carelessness and negli-
^icence of the defendant, its agents and servants, said timber
has been wholly lost to the plaintiffs ; and that "the said
defendant, though often requested, has refused and still
doth refuse to deliver to your petitioners the said timber or
any part thereof, or to pay the value thereof ;" wherefore
process is prayed, etc. The defendant pleaded not guilty^
and " ultra vires,^^
At the trial, the court, on motion of the defendant, or-
dered a nonsuit, holding the plaintiffs' evidence insufficient
to make 2k prima facie case for recovery. Whether or not
this adjudication was erroneous, is the question made by the
writ of error.
One of the plaintiffs testified to the description, owner-
ship and value of the timber lost. It constituted a part of
three rafts brought to Savannah over the defendant's canal,
one of which was left in the canal and the other two were
placed in the basins. No arrangement for care and cus-
tody was made between the parties. The defendant has
nothing to do with the transportation of timber over the
canal, except to keep the canal and locks open, the care and
i
90 SUPREME COURT OF GEORGIA.
Watts A Bro. ot. The SAvaoDAh A Ogeechee Oanal Go.
custody daring transportation being in the owners. No re-
ceipt is given by the defendant. Its custom is to allow the
timber to remain fifteen days without charge, and after
that time to charge for dockage at the rate per month of
twenty cents the M feet. Timber, after inspection, is al-
lowed to remain in the canal or may be placed in the basins
or artificial harbor, from which it is taken by owners as re-
quired, they, by their servants, or the servants of their fac-
tors, moving the timber from the basins to and through the
locks, and the lock-keeper suffering it to pass on orders
which are sent to him by such owners or their factors.
Sometimes a whole section is taken out at once, and again
only a few pieces. The lock-keeper enters in a book which
he keeps, an account of all timber that passes the locks.
The timber in the rafts of which the sticks now sued for
formed a part, became loose, and the witness had it brought
together and staked, and the president of the Canal Com-
pany allowed him twelve dollars for expenses incurred in
so doing. The rafts remained in the canal basins until af-
ter the yellow fever of 1876, and dockage at the usual rate
was paid to the company upon all except the lost timber.
When the rafts were sold and ordered out, seven sticks
could not be found. The witness does not know what be-
came of them. The president of the company promised to
settle for them, but never did so. The price chai^ged at
other booms is fifteen to twenty cents the M. feet per
month and they, too, do not receipt for timber.
A clerk of the plaintiffs testified that the basins are from
150 to 300 yards from the lock-house where the lock-
keeper resides. Upon the arrival of timber near the lower
lock, it is regularly inspected by sworn inspectors, who give
the lock-keeper the name of the owner, number of pieces,
and the dimensions, and he makes entries accordingly in his
book ; it is by this means that he knows what to charge and
from whom to collect. Timber is put in the basins, some-
times by the owners, sometimes by the canal company.
No receipt is required or given. An order is given to the
SEPTEMBER TERM, 1879. 91
Watto A Bro. rs. The Savannah & Ogecchee Canal Co.
lock-keeper to pass through the locks and tlie timber is so
passed per order. One of the three rafts of the plaintiffs
was put in the basin by the defendant. The witness saw
all the timber a few months before the seven sticks were
lost, and it was in good condition. When witness went for
it, the lock-keeper admitted that It was short seven pieces
according to the entries in his book% and he assisted wit-
ness two days in searching for the missing pieces. Timber
if loblolly, fat or rotten will sink, but none of this was of
Buch character, and none of it was found in a sunken condi-
tion.
Another person, a timber dealer^ and familiar with the
trade testified, tliat an account of the timber brought down
the canal is given by the inspectors to the lock-keeper.
The defendant has control over the location of timber
placed in the basins, and the lock-keeper can place it
where he pleases. It is usually inspected in the basins, and
is cut loose so as to be turned over, and then fastened by
pinning the outside sticks, but not securely. The dockage
or boomage has been charged and received by the defendant
for years on timber remaining over fifteen days in the canal or
the basins. The price is about the same as at the river booms.
These latter charge 15 to 20 cents perM feet per month.
At them there is tide-water, and a watchman is employed,
and the timber tied, but in the canal basins there is no tide-
water; the banks prevent the timber from getting away or
being stolen. It could not be removed except through the
locks. There is no watchman at the canal basins— the lock-
keeper is about 150 yards from them. Witness has known
timber passed through the locks by mistake — that is, the
timber of one party was allowed to pass as the timber of
another — such taking was by the servants of the factor who
had the sale of the timber. The canal company has noth
ing to do with the custody or control of timber while it is
being transported over the canal.
Did this evidence make a case ? We think not. Accord-
6
92 SUPREME COURT OF GEORGIA.
Watts & Bro. ve. The Savanx»h & Ogeechce Canal Co.
ing to the charter of the canal company, Dawson^ 8 Com^,y
90, et 8eg.y and amendments thereto, acts of 18.^1, p. 200^
of 1837, p. 2U, of 1847, p. 141, of 18il>-5a, p. 208, the
business of the corporation is to maintain and keep open a
water-way for the use of the public, taking tolls for sucb
use. In the light of the charter and of the evidence, the
company is not a carrier ; it is not engaged in the business
of transportation ; it furnishes nothing but the water upon
which the commerce of the canal floats; its servants render
no assistance in the actual work of navigation ; and it as-
sumes no custody or control of the property which enters
the canal and passes over or through it. The basins at the
Savannah terminus are but expansions of the canal proper,
and are evidently intended for the more ample accommo-
dation of customers, since all have a right to their use free
of any charge additional to the ordinary tolls, for fifteen
days, and this indulgence is equally applicable whether the
timber lies in the basins or in other parts of tl>e canal. The
regulation which subjects customers to a further assessment
under the name of boomage or dockage, in case they fail to
withdraw their property within fifteen days after the trans-
portation is completed, has for its object, most probably^
the clearing away of the commerce which has arrived at
destinatic^i, to make room for subsequent arrivals, so as to
keep the canal from choking up. Without soii>ething to
stimulate discliarge, those customers who have been served
might render it impracticable to serve, with reasonable ex-
pedition and equal advantage, those who are behind them.
In order to keep the canal open alike to the whole public,
that portion who bring their rafts into port eaily, must get
out of the way of that portion who come later ; and there
can be no doubt that to give each individual the half of »
month, or tlie twenty-fourth part of a whole year, to move
out, is a very liberal allowance of time. To furnish mere
water-surface and support during a longer period, on con-
dition that it is paid for at an established rate per month,
does not impress upon the canal the character of a water
SEPTEMBER TERM, 1879. 9»
Watte & Bro. t««. The Savannah & Og^echee Canal Co.
warehouse, or make the company a bailee for storapje and
safe-keeping. The business of the company is exchisively
that of road-m ikin(( and road-mending, and, in the absence
of special contract, it owes no duty to customers beyond
that of keeping the canal and tjasins in good order, and
open for use. Whether the property afloat is, for the
time, stationary in suitable situations, or in motion along^
the main channel, makes no difference; the legal relation
of the company to it is the same in the one an^c as in the
other. The manning of rafts which are moored, or the
keeping of watch over the same, is neither more nor less
in the line of the company's busitiess than is the like service
in respect to those which are making the voyage ; and no
new duty arises toward such as have become subject to
charges on account of continuing to occupy space in the
canal or its basins for a longer term than fifteen days after
reaching port. The true nature of this further assessment
is a graduated toll upon lingering rafts, proportioned to the
length of time they respectively enjoy the use of the com-
pany's water-way, and somew^hat to the extent of water-
surface they occupy. For any wrongful act of the com-
pany to the commerce of the canal, the company would be
liable in damages, whether the property lost or injured
was, at the time, in transit or at destination; but the mere
disappearance of property from the canal or the basins, unac-
counted for, is not evidence of any such act. In the pres-
ent case, the missing sticks of timber might have sunk, or
they might have been stolen and carried away. How they
disappeared, or what became of them, is simply an unsolved
mystery. One ot the witnesses had known instances in
which the lock-keeper had, by mistake, suffered timber to
pass through the lock, but he did not pretend that he had
any knowledge that this particular timber passed out that
way. If mistake in the other instances could be detected,,
no reason appears why it could not also be detected in this,
if it bad occurred ; and to argue from known mistakes that
an unknown one has taken place, not simply that it mighi
M SUPREME COURT OF GEORGIA.
De Lncch v«. Hardee's Son A Co.
have taken place, is unsound. There was no evidence that
mistakes were habitual with the lock-keeper, or committed
with a f lequency more than ordinary, or that he was unfit
for his position, or below the average in competency. There
is no wrongful act of commission or omission on the part
of the company even pointed to by the evidence, much less
established, in regard to this particular timber. The timber
disappeared, was searched for thoroughly and could not be
found; the preddent of the company promised to pay for
it, and failed to comply with the promise ; these are the
facts which bear against the company with most force, and
they wholly fail to support the declaration. It would be
altogether unwarranted to infer liability from the president's
promise to pay, as the circumstances did not justify the
promise, and as the president himself seems to have recon-
sidered it, and declined compliance. The company is nit
shown to have failed to perform its charter obh'gations, or
to have done any wrongful act, and hence the nonsuit was
properly awarded.
Judgment affirmed.
Dc Loach v^.' Hardee's Son & Company.
Where suit is brought for the purchase money for fertilizers on a con-
racl containing this stipulation : "which said note is given for
forty-one hundced pounds of fertilizer known as the Sea Fowl
Qunno, valued at this date at $143.50, which I buy and accept
from N. A. Hardee's Son & Co., entirely upon its analytical stand-
ard, they in no case to be held responsible for the practical results:"
PiUL, 1. That evidence by a chemist who applied the test of analysis
to a sample of the fertilizer, and who testified from his analysis that
it did not come up to the analytical standard of such fertilizer, is
admissible, though his analysis was imperfect, and the condition of
the sample as to its preservation unknown to the chemist, and the
date of the analysis was not given — such evidence being compe-
tent, and Jts effect being for the jury to pass upon in connection
with other evidence which might have been introduced to supply
its want of sufficiency to make a complete defense.
SEPTEMBER TERM, 1879, 95
De Loach V9. Hardee^e Son & Co.
2. That testimony in respect to the practical result of its application
to defendant's crop, while inadmissible by the terms of the contract
to hold plaintiffs responsible, standing alone, yet may be admitted
to throw light upon the true issue, whether or not the fertilizer de-
livered actually came up to the analytical standard stipulated in
the contract.
Evidence. Contracts. Before Jndge Fleming. Bulloch
Saperior Court. April Term, 1879.
To the report contained in the opinion it is only neces-
sary to add the following :
A witness for defendant, Dr. Lane, testified as follows :
"Am a physician and chemist, and competent to make
chemical analysis. I analyzed the sample of fertilizer
brought to me by defendant, of which he has spoken. Sub-
jected it to cliemical tests to find out principally the por
tion of insoluble matter in it, and to find out the presence
of the usual fertilizing ingredients of the fertilizer. The
test was perfect for discovering the insoluble matter which
is wholly unfertilizing. I found eighty-five per cent, of
sand and other matter wholly insoluble, and fifteen per cent,
of soluble matter. I found only a trace of ammonia, not,
in my opinion, an amount equal to two per cent, nor any-
thing like that. I cannot swear to the quantity of ammonia
precisely, because I had no way of measuring the quantity
accurately, not being fitted up for that. But I did test it so
as to discover its presence and found only a trace. I found
also phosphoric acid in it, but did not test the quantity ;
neither that nor the ammonia was left in the insoluble
matter.
"The analytical standi»rJ of the Sea Fowl Guano is, as
specified in the report of the commissioner of agriculture of
the state, viz : moisture, 15.65 ; phosphoric acid, insoluble
3.13; do. soluble, 5.6G; reverted, reduced or precipitated,3.30;
ammonia, 2.91. This sample, so analyzed by me, did not
come up to this by a great deal.
"The process I adopted for this analysis was this : I
took 120 grains, placed it in a glass tube, and poured over
96 SUPREME COURT OF GEORGIA.
De Loftch 9$. Hardeo*8 Soo A Co.
it a eolntion of sulphuric acid, and let it remain so three
days, then poured the acid off, washed the remainder out
carefully with alcohol and rain water, preserving all the in-
soluble matter, which I dried on paper thoroughly dry in
the sun, and weighed it. It weighed 102 grains. Before
separating the soluble from the insoluble matter, after the
mass had remained three days in the glass tube, I tested it
for ammonia by dipping in the solution litmus paper, which
is the test for ammonia, and found only a trace of it.
^'1 am a farmer as well as physician and chemist, and
have used fertilizers largely for matjy years on my own
crops. I have used many kinds, and it has been my habit
to analyze the various fertilizers used by me in the manner
aforesaid to determine the quantity of insoluble matter in
them, for insoluble matter is not fertilizing, and docs no good,
except to act as a body to hold the soluble matter. I used
the Sea Fowl Guano on my crop last year. I analyzed a
sample of it to find the insoluble matter. It came up to
the standard I have spoken of, and proved to be a good fer-
tilizer in its results upon my crop. This sample I analyzed
for De Loach has immensely more insoluble matter than
was shown by the same test to be in the sample I analyzed
for myself. The fertilizer I analyzed for De Loach would
be worthless as a fertilizer. That is to say there are some
fertilizing properties in it in the shape of soluble matter,
as I have testified, which of course would produce results
upon land, but it would have to be used in immensely large
quantities. The application of 150 to 300 pounds (the usual
quantitj') to an acre would be of little or no service. 2000
pounds to the acre might produce well. But a fertilizer
requiring to be used in that quantity is not a firstcalss fer-
tilizer. It is not such a fertilizer as would sell for $65.00 or
$70.00 a ton on credit. The usual quantity of good fertilizer
used upon land in thib county is 150 to 200 pounds per
acre."
In reply to questions by the court, the witness said : "I
cannot swear whether or not there was in the fertilizer
>, ii
SEPTEMBER TERM, 1879. 97
Pe Loach vs. Hanlce^'s Son A Co.
which I analyzed 15.65 moisture, nor if tliere was phos-
phoric acid insoluble 3.13, or soluble 5.66, or reverted, re-
duced or precipitated 3.30, or ammonia 2.91. I was not pre-
pared, and did not test for any of these chemicals, except
for the ammonia, and of that I found some, but not, in
iriy opinion, as much as 2.91. But I cannot swear there was
not that much. After dipping some paper in the ammonia
I poured the solution on the ground, and then dried and
weighed the remains. These remains appeared to be sand,
but I made no test except by the eye. Tliere were one
hundred and twenty grains of the fertilizer put in the glass
tube, and one hundred and two grains of what looksd like
sand^ when I had finished the experiment. This left about
eighty five per cent, of insoluble matter. This is the reason
I say that the fertilizer does not come up to the standard."
On motion of plaintiflFii' counsel, all this evidence as to
the analysis was ruled out.
Defendant also offered to testify as to the effect of this
fertilizer on his crops, which the court refused to allow.
Both these rulings were complained of as error.
RuFDs E. Lester ; D. R. Groover, for plaintiff in error.
T. W. Oliver, Jr., by brief, for defendants.
Jackson, Justice.
This action is based upon a contract to pay $143.50 for a
certain quantity of Sea Fowl Guano. The jury found for
the plaintiffs, much of defendant's testimony having been
ruled out by the court lie moved for a new trial on
the ground that it was so ruled out, and also on the ground
of newly discovered evidence. The motion was overruled,
and the defendant excepted.
1. The contract contained the following stipulation :
"Which said note is given for 4,100 pounds of fertilizer
known as the Sea Fowl Guano, valued at $143.50, which I
buj and accept from N. A. Hardee's Son & Co., entirely
98 SUPREME COURT OF GEORGIA.
De Loac-h V9. Hardee^s :^OIl & Co.
npon its analytical standard, they in no case to be held re-
sponsible for the practical resnlts."
It will thas be seen that the only issue which defendant
conid make was this: Did the gnano come np to the analy-
tical standard bargained for ? He put in a plea that it did
not come up to the standard bargained for, and was therefore
not the article which he agreed to pay for, and was worth-
less.
This plea he had the right to make good by legal and
competent proof; and upon the competency of that proof
the court is to judge: upon its sufficiency, the jury; or
the court, on motion for a non-suit, or for a new trial. The
court here excluded the evidence from the jury, and the
question is, was the rejection of it right ?
A doctor and chemist swore that he had analyzed the
guano — that its analytical standard was to be of such and
such ingredients according to the report of the Georgia
commissioner of agriculture, and that this guano by sample
furnished him by the defendant, did not, by a great deal,
reach that standard. What the true standard was seemed to
have been agreed upon tacitly — no objection being inaxle to
the mode of ascertaiiung it from the commissioner's report;
but the chemist had not perfectly analyzed the sample, as
appeared from questions put by the court, and could not
swear exactly to the component parts of the guano, though
he did swear that the soluble matter, which is the onlv fer-
tilizing quality, was, by a great deal, less than the standard.
We think that his testimony was competent and ad-
missible for what it was worth. Whether sufficient by
itself to authorize a verdict, is not the question. It might
have been aided by other testimony. The main defect
in it, it strikes us, is that it does not appear whether
the sample analyzed had been preserved in such manner as
to insure that it was a fair sample of the guano when deliv-
ered. The ammonia would have evaporated, and much of
the fertilizing properties of the manure been lost, had it
not been so preserved. It was therefore important to show
SEPTEMBER TERM, 1879. 99
Pe Lonch rtt. Hardee^e Son & Co.
when it was analyzed by Dr. Lane, and where and how
kept until that time.
Bnt all this inio^ht have been supplied by questioning the
witness or by other witnesses, and relates more to* the suffi-
ciency and eCFect of evidence than to its admissibility.
On tlie whole, we think it admissible, to be passed upon
by the jury under the charge of the court. See Alle?i vs.
Youny^ last term, not yet reported ; 51 Ga,,^ 298; 53 /J.,
635.
In the case of Allen vs. Young ^ the stipulation is very
similar to this, and there this court held that "the precise
right of the purchaser was to receive an article containing
the chemical and fertilizing properties cnuiuerated in the
guaranty, and these in the proportions and up to the degree
of strength held out as a standard," and we further say that
the best mode to arrive at it is to test a sample by analyzing
it, due care being had to preserve a sample in order to in-
sure its fairness. "Test or comparison by indirect means
might be practicable, too," we go on to say in the syllabus
of that case.
So that that case would seem to strengthen the view we
take of this.
So in the case in 53 Ga., 637, it is ruled that the opinion
of a chemist after analysis is evidence to be considered by
the jury — not conclusive, of course — but, nevertheless, evi-
dence.
2. While, by the express terms of his contract the de-
fendant cannct plead that the practical result of the use of
the guano was that it made nothing, and defend himself on
that ground, and therefore cannot introduce evidence for
that purpose; yet such evidence is admissible to strengthen
the testimony of the chemist that the guano did not come
up to the stipulated standard, and to show that by its fail-
ure to meet the standard agreed upon, the defendant was
damaged. If it came up to the stipulated standard, it is
wholly immaterial whether it mtide a lock of cotton or
grain of corn ; but the fact that it made neither is evidence
100 SUPREME COUKT OF GEORGIA.
Tbe Oiitral Railroad vf. Keiiney.
that it did not come up to that standard, especially where
the evidence is, as in this case, that other Sea Fowl Guano
which came up to the standard, or nearly so, did help the
production largely.
And this view seems, too, to accord with the ruling in
Alleii vs. Young ^ last term, where we say on a si?nilar con-
tract, or intimate, at least, that the effect on crops could be
considered in connection with the admission of the seller
made on the trial.
The ground of newly discovered testimony was not
pressed.
We think, however, that the case had better be tried over,
in accordance with the views given above. It may be that
the result will be the same before the jury. That sliould
depend much upon the preservation of the sample analyzed
as a fair sample of the manure sold; but the defendant's
evidence was improperly excluded, and this entitles him, as
it went to the vitals of his case, to a new trial.
Judgment reversed.
The Central Railroad v8. Kbnney.
Neither tbe nmcndment to the plaintiff's declaration, nor the evidence
offered in support thereof, tHkes it without the ruling when it was
here before, and consequently the judgment refusing a new trial
• must be reversed,
Jackson, Justice, dissented.
Kailroads. Master and servant. Damages. Before Judge
HiLLTEK. Henry Superior Court. April Term 1879.
Reported in the decision.
A. R. Lawton ; Stewart & Hall, for plaintiff in error.
Geo. W. Kolan ; W. F. Wright ; J. J. Floyd, for de-
fendant.
SEPTEMBER TERM, 1879. 101
Tho Cootral Raiiroad r«. Kenuey.
WAiiNER, Chief Justice.
Thin was an action brout^ht by the plaintiff against the
defendant, as one of its employees, to recover dania<i;es al-
leged to have been sustained by him in having been thrown
off the defendant's road when going thereon in one of the
defendant's crank-cars, in consequence of its alleged defec-
tive construction, and the negligence of the defendant.
On the trial of the case the jury, under the chaige of the
court, found a verdict in favor of the plaintiff for tho
6UQ1 of $2,500.01). A motion was made for a new trial on
the several grounds therein stated, which was overruled,
and the defendant excepted.
It appears from the record, tiiat on the last trial of this
case, the plaintiff amended his declaration and alleged
" that the crank-car from which plaijjtiff was thrown, was
not coniitructcd as crank-cars usually are and were before
that time, and of that fact plaintiff had no knowledge, and
said car so constructed was much more unsafe than crank-
care constructed as usual, and that of this defendant
had notice, and did not communicate the same to plaintiff.''
The main controlling question in this case is whether the
foregoing amendment to plaintiff's declaration, and the evi-
dence introduced bv him on the last trial of this case, takes
it out of the ruling of this court in 58 Ga,^ 485, in the
case between the same p<arties, as to the rigiit of the plain-
tiff to recover from the defendant nnder the law. What*
are the allegations in the amended declaration ? First, that
the crank-car from which plaintiff was thrown was not con-
structed as crank-cars usually are and were at that time —
without alleging wherein it was not so constructed, or in
what manner it was constructed differently from what
crank cars usually arc and were, so as to have put the de-
fendant upon notice as to what was the alleged difference
between the car from which he was thrown and other
crank-cars usually used on defendant's road and other rail-
roads. How was its construction different from othercrank-
102 SUPREME COURT OF GEORGIA.
The Cential Kaflroad vs. Kenner.
cars nsuallj used on railroads? Second, that of that fact (to-
wit) the fact that the crank-car was not constructed as crank-
cars usually are, the plaintiflE had no knowledge. How could
the plaintiflE have had any knowledge of the diflference in
the construction of that crank-car and other «rank-car8
usually used on railroads, if no such diflPercnce in its con-
struction existed, or when the diflference in its construc-
tion was not alleged and described? Third, that the said
car so constructed, that is to say " not constructed as crank-
cars usually are," was much more unsafe than crank-cars
constructed as usual, and of this the defendant had notice,
and did not communicate the same to the plaintiflE. AVhat
was the diflEerence in the construction of the crank-car from
which the plaintiflE was thrown and other crank-cars usually
used on railroads of which the defendant had notice and
did not communicate to the plaintiflE? Can any hu-
man being tell what was that diflEerence in the construc-
tion of the crank-car from which the plaintiflE was thrown,
and the construction of other crank-cars usually used on
the defendant's and other railroads, of which the de-
fendant had notice and failed to communicate to
the plaintiflE, from the allegations in the plaintiff's
amended declaration ? The legal presumption is that the
plaintiff stated his case as strongly in his own favor in
the amendment as the facts would authorize him to do.
So much for the new case made by the plaintiff's amended
declaration. What is the evidence of Reed, the plain-
tiff's witness, in support of the alleged new case made
by the amendment ? He states that he used the crank-car
about two years and that ic was properly constructed
so far as he knew, except one wheel which was a little
loose on the axle, of which he notified the plaintiff (the plain-
tiff testilied that he wedged the wheel and said that he be-
lieved that it was as good now as it was fhe day it came out
of the shop), that it frequently ran off the track with him
at frogs — small flanges and light wheels made it liable to
run off the track at frogs. Such cars as the plaintiff was
SEPTEMBER TERM, 1879. 103
The Crntral Railroad V8. Kenuey.
hnrt on are liable to run off going over frogs rapidly, be-
cause of the feinall flanges and light weight wheels, as be-
fore stated. Plaintiff had several years experience as sec-
tion master on the road, and had seen the car from which
he was thjown in use repeatedly and rode on it with wit-
ness.
There is nothing in Reed's evidence going to show
that the crank-car was not constructed as crank-cars u&ually
are, but on the contrary states that it was jproperhj con-
structed. It is true tint he states that it frequently ran off
with him at frog:^, not on account of its improper construc-
tion, or because it was was not constructed as crank-cars
usually are, as alleged in plaintiff's amended declaration,
but because such cnrs are liable to run off whensroinj: over
frogs for the reasons etated by the witness. There is no evi-
dence that this crank-car was any more liable to run of the
track at frogs than an}' other crank-car of its class, and the
plaintiff himself testified that hedid not know what did cause
it to run off. It is true this car had frequently run off with
Reed at froics, but all such cars are liable to run off at
frogs when going rapidly, and there is no evidence how
the car was going when it ran off with Reed. If this car
had any hidden defect, not discoverable by ordinary dili
gence, different from other cars of the same class which
caused it to run off at frogs when other cars of the same
class would not, and the defendant knew it, then the plain-
tiff should have alleged and proved it at the trial. Accord-
ing to the allegations in the plaintiff's amended declaration,
and the evidence adduced in support thereof, there is noth-
ing to take the case out of the rulings of this court as made
between these same parties and reported in 53 6^a., 485.
Let the judgment of the court below be reversed,
Bi.KCKLEY, Justice, concurring.
I concur in the judgment, not on the idea that the plain-
tiff's amendment to tlie declaration is not suflicientlv cer-
tain and deiiuite (there being no*deraurrer for want of cer-
104 SUPREME COURT OF GEORGIA.
TheCt-ntrml Railroad re. Kenney.
taint v), but for the sole reason that the plaintiff failed to
prove tht' matter of the amendment. His own witness tes-
tilied that the car was properly constrocted. If the particalar
car had a hidden vice not common to cars of its class, and if
the supervisor knew of such hidden vice, the pljiintiff was
entitled to notice of it; but if the car would run off at
frogs merely because it was a light car with short flanges,
and if crank-cars propeily constructed are constructed in
that v%ay, and therefore would be as liable as this particular
one to jump the track at frogs, I think the plaintiff took
the risk, and that he cannot recover.
Jackson, Justice, dissenting.
In my judgment the case made on this trial takes this
judgment of the superior court without the decision of the
case between the same parties in the 5S^A Ga.
The supervisor of the track, the itninediate superior offi-
cer of the plaintiff, who was a section master, directed the
plaintiff to attend to some business on a section other than
his own, and with which he was unacquainted, and put the
plaintiff in charge of the supervisor's crank-car, with the
use and working of which plaintiff was also unacquainted,
having been on it but once with the supervisor ; and al-
though the supervisor knew that the car was light and the
flange of the wheel quite shallow, and that the car ran off
the track very easily at frogs, and had frequently run off
with the supervisor at frogs, yet gave no notice thereof to
the plaintiff, who did not know it ever ran off. The plain-
tiff had been accustomed to a pole-car, much heavier and
less liable to run off the track, and in consequence of his
want of notice of the character of this car on which the
supervisor placed him, and of its having frequently run off
the track with the supervisor at frogs, passing the point of
danger with less care than he would have used had he known
of its liability to run off at such a place, the car was thrown
from the track and plaintiff was badly crippled.
This is substantially the case made by the plaintiff^s proof,
SEPTEMBER TERM, 1879. 105
Comming «t al. t». The Truatees of the Reid Memorial Church.
the jury passed upon the evidence and believed this version
of the transaction, introduced under an amendment not de-
marred to ; the presiding judge, certainly not inclined to
be partial against railroad companies, as he is a director of
one of them, approved the finding, and the rule applied to
all natural persons that this court will not interfere with the
discretion of the presiding judge in refusing a new trial on
the ground that the verdict is strongly against the weight
of the evidence, unless that discretion has been abused,
should be applied, I think, in this case, under these facts,
to this company.
If the above facts were believed by the jury, the com-
pany was negligent in that the supervisor did not warn his
subordinate of the character of the car and the danger to
be apprehended when it passed over the frogs, and the jury
having found the fact of negligence against the company,
it being peculiarly their office to pass upon questions of
negligence — and there being evidence sufficient to support
the finding — I cannot say that the judge abused his discre-
tion, and therefore I think the judgment should be affirmed,
and I dissent from the reversal.
CoaiuiNO et al. vs. Tub Trustees of the Rrid Memorial
Church.
The fourteenth item of testator's will was as follows: "My house
and lot on the north side of Walton Way, in the village of 8um-
merville, near Augu&tti, I give and bequeath, in fee simple, to James
W. Davies, Thomas W. Coskery, and Jonathan 8. Wilcox, of Sum-
merville, intrust, that they and their successors allow to William
Berrien, hereinbefore mentioned, to occupy, free of rent, during
hia natural life, the piece of ground at the northwest corner of said
lot, known as the 'Potato Patch,' and to remove on to said piece of
ground, for his use during life, the building on said lot known as
'Violet's House.' Said lot is supposed to contain about five eighths
of an acre, known as the ' Potato Patch.' I desire the above named
James W. Davies, Thomas W. Coskery, and Jonathans. Wilcox, to
obtain for themselves and their successors, a decree of incorpora-
106 SUPREME COURT OF GEORGIA.
Cnmmint; et at. w. Tb« Tra«ite<'B of the Keid Memorial Church.
tioQ, as trustees of a Presbyterian church io coDQcclion with the
present general assembly of the Presbyterian church in tLe south-
ern sttitcH; and hold the western portion of the lot hereby bequeathed
to them, to-wit: one hundred feet in breadth, from the western line,
as A church lot ; the remainder of the entire lot, with its appor-
tenunces and improvements, except 'Violet's House/ above men-
tioned, they are directed to sell in the manner and on the terms they
deem expedient, and are authorized to fully convey the same in fed
timp e. With the proceeds of said sale. I direct them, or their suc-
cessors, to build a church of the Presbyterian denomination afore-
said, in the church lot hereinbefore provided for. The plan and
style of said building is necessarily left to the discretion of the trus-
tees. But I recommend, if the means be sufficient, that it bo of
brick, well but plainly finished, with a basement for a Sunday-
school room."
The will was dated on the 31st of July, 1869. and on the same day the
following codicil was executed: " I desire Porter Fleming to be an
additional trustee under the clause in the foregomg disposing of my
house and lot in Summerville "
On April 2, 1870, a third codicil to the will was executed, confirming
and republishing the same, the third item of which was in the words
following, to wit. ** I desire George M. Thew and William A. Wal-
ton to be additional trustees under the clause in said will disposing
of my house {ind lot in Summerviile; and to the entire board of
trustees for the erection of the church in said will provided, I give
and bequeath further the sum of eight thousand dollars, should the
residuum of my estate amount to so much."
On July 25, 1872, a fourth codicil was executed, the seventh item of
which WAS in the words following, to-wii: ** Jonathan S. Wilcox,
one of the trustees appointed in said will for my houst; and lot in
8ummerville. having departed this life, I appoint Liudsay C. War-
ren tis trustee in his room, with all the rights and powers given to
said .lonalhan S. Wilcox by said will."
On July 14. 1875. the sixth and last codicil was executed, as follows, so
far as relates to this csise: "Should my estate not he able to pay «
off in full all legacies specified in this my last will and testament,
including the eight thousand dollars bequeathed to the church to be
erected in Summerviile, and all other expenses, I now revoke so
much of said eight thousand dollars as may be necessary to accom-
plish saitl object, as my desire is to pay off all legacies in full."
'* Mr. Henry Moore, an additional trustee to the church to be erected
in {Summerviile."
The following memorandum was found among the papers of the testa-
tor, and entered of record by the ordinary, and attached to the bill
as an exhibit with the will and codicils: *' My desire is ihat the
church building to be erected in Summerviile, shall be placed back
SEPTEMBER TERM, 1879. 107.
CammiDg et ol. ts. The Tnietees of the Ki id Memoiiml diuich.
from Wakon Way at a sufHcieat distance so as not to obstruct the
view from my residence west, say from 75 to 80 feet, or more if
deemed necessary by the trustees to place it thus far from Walton
Way to effect that object. As regards said cliurch building, should
the trustees deem it advisable not to build it two stories in heifi^ht,
ibey are authorized to build it but one story high, pitched similar
to the church in Augusta called the ' Christian Church,' the roof to-
be covered with XX tin I and, in time, the house called 'Violet's
House * can be removed in rear of same, added thereto in length,
and converted into£ Sunday-school room. My desire is the church
shall be occupied or used for church purposes exclusively. Taking
off 100 feet on Walton Way for the church lot. there ought to re-
main to dwelling lot 500 feet fronton Walton Way, including one foot
more on the street leading to the cemetery, to which it is entitled.
It is my desire that the church should be named * The Louise Reid
Presbyterian Church/ or 'The Reid Memorial,' but if the trustees
deem it not a suitable name, or proper, it is left with them and my
executors to name it." This memorandum is dated July 19, 1873.
On demuirer to the bill, filed by the next of kin to the testator, setting
out tUc foregoing facts, and alleging that the house and lot hiid been
turned over to the trustees and sold for $9,400.00, with which they
had completed the church edifice, and that the executors had also
turned over the sum of $8,000 00 to the trustees, no part of which
had been applied by them to the erection or completion of the
church building, and praying for discovery touching the use by the
trustees of said $8,000.00, and for account and payment to said
complainants of said sum, or such part thereof as had not been ex-
pended in the matter of erecting and completing the said church
building, on the ground that, by the said will and codicil, the said
$8,000.00 was bequeathed to said trustees solely to be used by them
in the erection and completion of said church edifice, and not hav-
ing been so used, they held the same in trust for the complaiaants
as testator's next of km, there being no residuary legatees in said
will designated:
Hfld UL Thai even if the memorandum was improperly admitted to
record by thj ordinary., yet it is such a paper as may be used, like
other surrounding circumstapccsr, to aid in the construction of am-
biguous clauses of the wiH on the same subject matter, and being
exhibited to the bill in connection with the will and codicils, the
memorandum may be considered on demurrer in construing the
will and ptissiug upon complainants' case as made by themselves.
1^4^, That the testator's intention, gathered from the whole will
and all the codicils bearing upon the bequest of $8,000.00, and
read with the additional light thrown upon it by the memorandum,
wasio give the said sum absolutely to the said trustees to be used
and expended by them as they might see fit, not only in erecting
7
108 SUPREME COURT OF GEORGIA.
Cnmmrng el at. «f . The Trastees of the Reid Memorial Church.
and completing said church edifice, bnt in adding thereto, in keep-
ing* it in repair, and in sustaining and preserving the church in per-
petual memory of his wife and himself; and that therefore the com
plainants have no equitable interest in said fund, and the demurrer
to their bill was rightfully sustained and the bill properly dis-
missed.
Wills. Legacies. Evidence. Before Judge Snkad.
Richmond Superior Court. April Term, 1879.
Reported in the opinion.
M. CuHMiNO, for plaintiffs in error.
Jones & Eye, for defendants.
Jaoksok, Justice.
This bill was brought by the heirs at law of the testator
to recover $8,000.00, or so much thereof as had not been
expended by the defendants in erecting and completing a
church edifice in the village of Summerville, and connty of
Richmond. A demurrer thereto was filed substantially on
the ground that the complainants had no equitable interest
in said fund, and were not therefore entitled to ask dis-
covery in regard thereto or any accounting thereabout by
the trustees of said chnrch. The court below sustained the
demurrer, and the complainants excepted.
There were no residuary legatees named in the will, and
the complainants allege that the bequest of the teetator to
the trustees of this sum of money was made solely to be
used by them in erecting and completing a church edifice,
that the church building had been furnished by another
fund provided therefor without the aid of this fund, and
that these complainants, no residuary clause being in said
will, were, by virtue of being next of kin and heirs at law of
the testator, the beneficiaries of the fund, that the trustees
having possessed themselves of it and not needing it for the
uses declared in the will, held it in trust for complainants,
SEPTEMBER TERM, 1879. 109
Cnmming ti al.vt. The Trustees of the Itold Memorial Church.
and mast account totlicm therefor. On the other hand the
defendants maintain that the bequest to them is absohite —
not confined to the ase onlj of bnildin^ the church, but of
preserving and sustaining it as a memorial church in mem-
ory of tcstator^s name and bounty.
So that the point at issue is this : does the will give the
trustees this fund alone to complete the erection of the
church edifice, or does it give the fund in the wider sense
and for the broader use of preserving and sustaining it as
a place for the worship of God ? Or to pat it more broadly
still : is the fund given as a building fund only, or is it
given absolutely to these trustees for the use of this church
as a body corporate — in adding to the edifice, if necessary,
in repairing the building from time to time, in sustaining
the church as a worshiping congregation, and thus preserv-
ing this house of worship in perpetual memory — so far as
human things can perpetuate memory — of the testator's
bounty and of his name?
The question has been discussed with rare ability, and all
the light which research and learning and talent can throw
upon a point has been shed upon it. At last, however, the
question is, what was the intention of the testator in respect
to this fund — for his will is the law that must rule the use
of this fund, and his intention with respect to it is his will.
All the rules in the books are mere adjuncts to strengthen
— mere props to support this fundamental rule. On this
corner stone the entire fabric rests, and that which it does
not sustain falls, or may be rejected as mere scaffolding.
To ascertain this intention, the whole will, with a!! the
codicils which bear at all on the bequest, will be considered ;
and if there be still any ambiguity as to the will, or which
is the same thing, as to the desire or intention of the testa-
tor touching the use of this money, surrounding circum-
stances, cotemporaneous facts, written memoranda duly
authenticated, may all be invoked to see what the testator
meant.
This case is before us on demurrer, and nothing can be
110 SUPREME COURT OF GEORGIA.
Curoming €t al. re. The Trustees of the Kiid Memorial Church.
considered here, of course, except that which appears in the
bill of complainants ; but all the exhibits niade thereto are
parts of the bill and to be considered on demurrer in con-
nection therewith.
The fourteenth item of the will makes the first allusion
to the desire of the testator in respect to this church. It
is as follows :
'*My house and lot, on the north side of Walton Way. in the Tillage
of Summerville, near Augusta, I give and bequeath, in fee simple, to
James W. Davies, Thomas W. Coskery, and Jonathan 8 Wilcox, of
Sumnierville, in trust, that they and their successors allow to William
Berrieo, hereinbefore mentioned, to occupy, free of rent, during hia
natural life, the piece of ground at the northwest corner of said lot,
known as the 'potato patch/ and to remove on to said piece of ground^
for his use during life, the building on said lot known us 'Violet's
House.* Said lol is supposed to contain about five-eighths of an acre,
known as the 'potato patch.' I desire the above named James W.
Davies, Thomas W. Coskery, and Jonathan S. Wilcox, to obtain for
themselves and successors a decree of incorporation, as trustees of a
Presbyterian church in connection with the present general ai^embly
of the Presbyterian church in the southern stales ; and hold the
western portion of the lot hereby bequeathed to them, to-wit : one
hundred feet in breath, from the western line, as a church lot; the re-
mainder of the entire lot, with its appurtenances and improvements,
except 'Violet's House' above uicniioned, they are directed to sell in
the manner and on the terms they deem expedient, and are authorized
to fully convey the same in fee simple. With the proceeds of said
• sale, I direct them or their successors, to build a church of the Pres-
i byterinn denomination aforesaid, in the churi;h lot hereinbefore pro-
vided for. The plan and style of said building is necessarily left to
the discretion of tne trustees. But I recommend, if the means be suf-
ficient, that it be of brick, well but plainly finiahed, with a basement
for a Sunday-school room."
On the same day the following codicil was executed, July
3l6t, 1869.
"I desire Porter Fleming to be an additional trustee under the clause
in the foregoing disposing of my house and lot in Summeiville."
On April 2, 1870, a third codicil to the will was executed,
confirming and repnbli€liing the same, the third item of
which was in the words following, to-wit :
"I desire George M. Thew and William A. Walton to be additional
trustees, under the clause in said will disposing of my house and lot
SEPTEMBER TERM, 1879.
t. Tha TrOFieee of the Rcid Memorial Chan
in SummeTrillei and to tbc entire bonrd of trusiees for ibe erection of
the church in Baid will provided. I give aod bequeath Turther ihe sum
of eight thoustLod dollars should the residuum of my estate amount t*
so mucb."
On July 25, 187'i, a fourth codicil was cxecnted, the
seventh item of which was in the words following, to-wit:
"Jonalhao S Wilcox, one of (he trustees appointed in said will for
m; house and lot in S'lmmerville, having departed this life, I appoint
Lindsaj C. Warren as trustee in Uls room, with all the rights aad poiv-
ers given to said Jonathan S. WiicoK bj said will."
Tiie foregoing will and codicils were written, the bill
states, with the aseistance of connsel learned in the law.
On Jnly 14, 1875, a sixth and last codicil was execoted
It was written by the testator, withoDt the assistance of
counsel, on the back of his will. So mnch of it aa relatea
to the prcsciit case is in the words following, to-wit :
"Should my estate not be enutilcd to pay off in full all legacies spec-
ified in this mjr last will and testament, includiag the eight thousund
dolisra bcqueatlied to the church to l)e erected in Summcrviltc and all
other expenses. I now revoke in much of said eight ihausaad dollars
aa may be necessary lu uccumpli-ti laid object, as my desire is to pay
«ff all legacies io full."
"Hr. Henry Mnorc iin addiliouiti trustee to the church to be erected
in Sommerviile."
I On tbc 19th of Jn!y, IS72, a memorandum was made
by the testator, which w;is fonnd by the executors among
his private paper, and admitted to record by the ordinary,
•nd which appears annexed to the bill and exhibited with
the will and codicils, wIiIl-Ii is as follows, so far as it bears
on the point at issue :
"My desire is that llie cUurcU-lmilding to be erected in Summcrville
■haUbepIac«d Imck from Wal^oo Way at a sulScicat distance so as not
(0 obstnitl the view from my rusi.lonce west, say from 75 to 80 feel, or
■BO'S, If deemed necessary liy the trustees to place it thus far from
VTaltoa Way to effect (hut oliji^n.
"A*reganla saidcliureli biiiMiug, abnuld the trustees deem it advis-
able nwi to Uaild it two sidivs i [i luigbt, ihey are autborized Io build
It hnt one story, high pilctiL'il, -iitiilm- to the church in Augusta, called
Ihe Christian ebureh, Ibe roof lu be covered with XX tin, and. Id time,
I
112 SUPREME COURT OF GEORGIA.
Cmnuiing ei al. vs. The Trustees of tho Reid Memorial Church.
the house called VioleCs House can be moved in the rear of the same,
added thereto in length, and converted into a Sunday-school room.
**My desire is the church shall be occupied or used for church pur-
poses exclusively. Taking off 100 feet on Walton Way for the church
lot, there ought to remain to dwelling lot 500 feet front on Walton
Way, including one foot more on the street leading to the cemetery, to
which it is entitled.
'*It is my desire that the church should be named the 'Louise Reid
Presbyterian Church,' or the ' Reid Memorial,* but if tlra trustees deem
it not a suitable name, or proper, it is left with them and my executors
to name i*."
This rneraorandnm is dated July 19, 1872.
1. Whether this last paper was prai>erly admitted to
record or not it is nnnecessary that we decide. It is enoagh
that the memorandnm was found among the papers of the
testator, that it bears a date intermediate the execation of
the will proper, and tho codicils thereto bearing npon this
church. That renders it such a cotemporaneous circum-
stance as makes it proper for consideration to throw light
on the true intention of the testator in the bequest, the
same being somewhat ambiguous and capable of two cod
structions. The memorandum is- in the record ; it is re-
ferred to in the sixth codicil of the will ; it is certified to by
the ordinary with the other papers, to-wit: the will and
codicils, and if the others were exhibited, about which there
seems to be no dispute, this memorandum so embraced in
the certificate of the ordinary and spread out after the bill,
would seem to be also in the same exhibit. On the demur-
rer to the bill, which embraces all that is attached thereto
in any exhibit, we think it legitimate to consider the mem-
orandum in so far as it may throw light upon the mind of
the testator in regard to this bequest.
2. So considering these several clauses of the will alto-
gether and the memorandum, it seems reasonably certain
that the testator had in view not only the erection but the
preservation as a place of worship of this church. It was
to be a Keid memorial church. It was to be so named to
carry his name to posterity, or that of Louise Reid, pre-
sumed to be his deceased wife. The preservation of the
SEPTEMBER TERM, 1879. 113
— % ■
Cummlpg et al. vt. The Traatees of the B«'id Memorial Church.
charcb, therefore, mnst have been in liis eye as* much as its
erection. Looking at it merely as a place, a building, it
must decay. The paint would grow old and faint, and
need renewing; and the liouse itself would need repair.
Besides, by the memorandum, on a contingency, an addition
was to be made to itt)y adding a certain house for a Sunday-
fichool room, and that house was to be lengthened. All
these things would require money after the building itself,
as to its main structure, was completed ; and it assuredly
Gonjports with the nature of the original bequest and all
the codicils that funds be set apart for this purpose.
The very fact that in the original item the trustees were
required to have themselves and their successors incorpo-
rated, corroborates the correctness of the view we take of
the permanent nature of the memorial of himself had in his
eye by the testator. Not only so, but the character of the
church, its connectional or denominational relations, was in
the mind of the testator, and the form and mode of worship
therein. It was to be a Presbyterian church ; it was not to
be independent, but "connected with the present general
assembly of the Presbyterian church of the southern
states." So that in the original will, not the mere erection
of a house of worship was in the testator's mind, but the
sort of worsiiip therein was a big idea with him. The be-
quest, and all that bears thereon, breathes a spirit of devotion
to the Presbyterian doctrine of faith and mode of worship;
so that even if all the proceeds of the house and lot had
not been expended in the building, it would not require
much stretching to cover with the intention of the testator
the sustentation as well as the erection of the church.
But when the codicil with the specific bequest of
$8,000.00 comes to be considered, the intention becomes
clearer. After naming certain additional trustees " under
the clause in said will disposing of my (his) house and lot
in Sammerville," he adds, "and to the entire board of trus-
tees for the erection of the church in said will provided, I
give and bequeath further the sum of $8,000.00 should the
114 SUPREME COURT OF GEORGIA.
Cominiog et al. w. The Trustees of the Beid Memorial Choreh.
residniini of my (his) estate amount to so much.'*' The
words **for the erection of the church in said will pro-
vided " are descriptive of the persons before named in the
will and codicil. It was necessary either to name each of
them over again, or to use some fj^neral words embracing
them all in a single phrase ; because he' was about to make
them a large bequest.
Further, the last codicil is still stronger in favor of the
construction we put on the will. There the testator calls
the $8,000.00 a legacy. He says, " should my estate not be
enabled to pay off in full all legacies specified in this my
last will and testament, including the $8,000.00 bequeathed
to the church," etc., thus by implication terming this be-
quest a legacy. It is true that in the latter part of the
clause he expresses a desire to pay in full all legacies at the
expen<>e of this bequest, and would seem therein to nullify
such use, by implication, of the word before; but the bill
alleges that this was written without the aid of counsel,
and we may expect some inaccuracy of language. In this
clause he is revoking enough of this $8,000.00 fund to pay
in full other speciKc legacies. If it had been his purpose
not to give this $8,000.00 except to aid in the church build-
ing, this would have been the place to say so. He was
here considering how to pay in full divers legacies ; and to
that end was revoking part of this bequest. Had he meant
to confine this to building, he would here have said, should
the proceeds of my house and lot suffice to build the
church without this fund, then I revoke this and direct it
applied to the other legacies.
Again, if this had been designed as a building fund, be-
cause the proceeds of the house and lot would not suffice
to complete the church without it, would the testator have
turned any part of it over to legacies to strangers, and
leave the church unfinished ? We think not. This church
was the main thought in his mind. To complete the edi-
fice he gave the house and lot. It was to be two stories or
SEPTEMBEK TERM, 1879. 115
Camming et cU. r». The Trustees of the Reid Memorial Chnrch.
one, as the proceeds of that hoaee and lot held out. Then
$8,000.00, or 80 much thereof as was a residuum after pay-
ing: other legacies, was to go to this church, to be used to
keep it up, to repair it, to sustain it, to keep it in exist-
ence— a living church where the worship of God after the
Presbyterian faith, doctrine and usage, was to be perpetu-
ated for generations, and the name of the founder, if the
tnistees and executors did not deem it inappropriate so to
connect his name with a place where God was to be wor-
shipped, was to be held in respect by those who worshipped
in its pews and preached from its pulpit.
Note further this last codicil in this respect, to-wit: the
words "bequeathed to the church to be erected," evidently
to it as a body corporate ; otherwise he would have said
natnrally "bequeathed for the erection of the church."
He does not even say to the trustees, but to the church,
which was by prior direction to be incorporated.
And note further, in the third codicil the words, "should
the residuum of my estate be sufficient," then this fund is
given, thereby making the gift turn on anything being left,
and treating this church as a sort of residuary legatee.
Some criticitm has been made upon the other codicils
appointing additional trustees, and the language used in
them, and great acumen has been displayed in distinguish-
ing these from the last — especially as they were written by
a lawyer, this by the unskilled testator; but we do not
think it sufficient to set off against the broader view we
take of the will in its entirety, and the evident intention
of the testator to be gathered from it and all the codicils
and the memorandum.
We think, therefore, that the intention of the testator
was to gi^e this money to these trustees, to be used by
them in and about the adding to, repairing, replenishing,
re-carpeting, re-cushioning this church, as it should need
corporeally such embellishment, and in sustaining therein
the worship of Almighty God, according to the Presbyte-
rian mode, and in connection with the general assembly of
116 SUPREME COURT OF GEORGIA.
Smith V*. Wade, constable, et al.
that chnrch south ; that the complainants, tltereforc, have
no equity in their bill whereby to call the trastees to account
or discovery ; and that the court below was right to sustain
the demurrer, and to dismiss the bill.
Judgment affirmed.
Smith vs. Wade, constable, et al.
Where the constable*s answer to a rule shows money in his hands col-
lected on the execution, and fails to show any legal reason for not
paying it over, the rule should be made absolute. N<>tice to the
constable, not accompanied with any judgment.^, fa., or other lien
upon the money, is no justificatitm for withholding the money from
the plaintiff whose execution brought it into court. On the facts
stated in the petition for eertwran, it should receive the sanction of
the judge.
Certiorari, Rule. Levy and sale. Before Judge Un-
derwood. Floyd County. At Chambers. July 29, 1879.
Mrs. Smith petitioned for the writ of certiorari^ present-
ing the following facts : She obtained an "attachment ab-
solute" against Chambers, former constable of the 919th dis-
trict, G. M., in the case of petitioner against Bailey, for
$25.00, with interest at 20 per cent, per annum theron from
October 9, 1877. Kfi,fa, was issued thereon by Towers,
N. P., and ex officio J. P.; this^. fa, has been reduced to
$4.50 principal, with interest. It was placied In the hands
of Wade, constable, for collection ; and on January 11,
1879, the defendant therein paid to him $5.50. This
amount the constable refused to pay over on demand.
Wherefore she ruled him. He set up no excuse for his
failure except the receipt of the following notice :
"J. L. Wade— You are hereby notified to hold up any money in
your hands in favor of M. L. Smith to pay cost in the case of Moses
Bailey u. M. L. Smith ««. Moses Bailey. January 11, 1879.
[Signed] J. L. Chambsbs, former L. C."
SEPTEMBER TERM, 1879. 117
Johnson vt. Christie sheriff, 6i al.
The magistrate refused a rule absolute, and dismissed the
rule nm. Wherefore petitioner prays the writ of certiorari.
The writ was refused, and petitioner excepted.
W. D. Elam, by brief, for plaintiff in error.
Forsyth & Hoseinson, for defendants.
Blkcklet, Jnstiee.
Mrs. Smith ruled constable No. 1, and obtained an exe-
cution against him. He paid to constable No. 2 a balance
due upon this execution. She then ruled constable No. 2,
who answered that constable No. 1 had served him with a
notice to hold up the money, and produced a copy of the
notice, or, perhaps, the original.
Whether this pair of constables are pulling together or
against each other, we see not how Mrs. Smith is to get her
money by mere constable power. She seems to us to need
judicial assistance. The magistrate ought to have made the
rule absolute, and as he refused, the judge of tlie superior
court should have sanctioned the petition for certiorari.
Merc notice to an officer to detain money which he has col-
lected on legal process, will not justify him in holding it.
63 Ga., 75).
Judgment reversed.
Johnson vs. Christie, sheriff, et al.
The comptroller-geDeral is not authorized by law to transfer tax^
fa9, issued by him against wild lands on payment of the amount due
thereon.
Hce concurrence of Blkcklet, Justice.
Tax. Officers. Comptroller-general. Wild lands. Be-
fore Judge Hood. Terrell Superior Court. May Term,
1879.
118 SUPREME COURT OF GEORGIA.
Johnson v«. Christie, sheriff, H tU.
This was a rule nisi granted on petition of T. F. John-
eon against S. R. Christie, sherifif of Terrell county. In
his petition and amended petition the movant, Johnson, al-
leges that on the 18th day of February, 1878, and other
days and times, he had duly assigned and transferred to him
by W. L. Goldsmith, comptroller-general of the state of
Georgia, two hundred wild land tax ^./cw., issued against
various lots of land in Terrell county, for which he paid to
Goldsmith, as comptroller-general, % , being the
amount of tax due the state on such land and the accrued
cost tliereon. That he placed ihQji.fds. in the hands of S.
R. Christie, sheriflf of Terrell county, who proceeded to levy
and advertise the same for sale in terms of the law. That
on or before the day of sale, various affidavits were filed
with said sheriff, alleging that said lots were not wild lands,
etc., as to ninety-seven of said Ji. faa.^ which he, as sheriff
as aforesaid, failed to expose to sale, and upon which there
is due and owing to movant $1,097.00, being the amount of
tax and cost paid by him to the comptroller-general for the
tax and accrued cost on ^kxA fi. fas. That the sheriff sold
the other lots levied on under and by virtue of 6aidy?.yii«.,
and that ho has in his hands eight hundred dollars or other
large sum arising from said sale.
By an amendment he alleges that he has paid to the state
of Georgia the full amount of taxes due on each of said,/£.
yiw., and fifty cents cost charged by the comptroller gene-
ral for issuing each of the same ; that theji.fas.y each and
all of them, had been assigned to him, the said T. F. John-
eon, by the comptroller-general, and that he had them duly
recorded in Fulton and Terrell counties, within three months
from the transfer thereof, and appends to his amended pe-
tition a list of \\\efi,fas.^ the lots against which they issued,
the amount of tax paid by him and the date of the trans-
fer.
By another amendment to his petition movant sets forth
that thiifi.fas. were sold and transferred to him by W. L.
Goldsmith, comptroller-general, with the guaranty that they
SEPTEMBER TERM, 1879. 119
JobDeon vt. Christio, shei iff, et al.
were valid, legal and binding liens on the lots of land set
out in each of the Jl. ^as., and that said lots were wild lands •
and for the ninety-seven lots not sold he asked to be reim-
barsed not only the money paid for said ^.yiz*., but the
cost and expense incurred.
On motion of the solicitor-general, W. L. Goldsmith,
comptroller-general, was made a party to the proceedings.
The sheriff's answer admitted the sale of the land, except
the ninety-seven lots, and alleged a large number ol the
lots had been purchased by Johnson, the transferee, but not
paid for : he also admitted that the ^.J^as. had been placed .
in his hands by Johnson, and generally the matters set up
in the petition for rule nisi.
On the hearing the court discharged the rule, and
movant excepted.
GuERRT & Parks, for plaintiff in error, cited Code,
§891 ; acts of 1872, p. 75 ; acts 1874, p. 105.
Jas. T. Flewellkn, solicitor-general ; D. A. Vason ; S.
D- Irvin, for defendants, cited acts 1874, pp. 105, 106;
Code, §891; Supplement to Code, §133; 73 Penn., 467;
Cooley on Tax, 322, 323 ; 18 Grattan, 100 ; 9 Wallace, 320 ;
48 Ga., 177 ; Code, §188 ; acts 1876, pp. 16, 30.
Warner, Chief Justice.
Johnson, as the transferee of certain wild hud fi. fas.,
brought a rule against the sheriflE of Terrell county, re-
quiring him to show cause why he should not pay over to
him the money in his hands arising from the sale of certain
described wild lands for taxes. Upon the hearing of the
rule the court decided that the transfer of the ft. fas. to the
plaintiff in the rule was made without authority of law, and
was therefore void, and discharged the rule, whereupon the
plaintiff excepted.
It appears from the evidence; in the record that the tax
a* fas, were issued by W. L. Goldsmith, comptroller-gen-
120 SUPREME COURT OF GEORGIA.
John^n tit». Christie, sheriff, it al.
eral of the state, against certain described wild lofs of land
for tbe taxes dne thereon, and tliat the tax diiQ the state on
said wild lauds was paid bj said Johnson to the comp-
troller-general, who thereupon transferred said Jt./aa. to
him after the tax dne to the state had been paid, and the
question is whether the comptroller-general had any lawful
authority to do so. The general ruje is that when an offi-
cer performs an official act it must be affirmatively shown
that he had the lawful authority to do that act, and this is
especially so in regard to the execution of the tax laws of
' the state. After the most careful examination, we have
been unable to find any law which authorized the comp-
j troller-general to transfer tax fi. fas, ii?sued against wild
' lands, after the tax due thereon to the state has been paid to
' him by any pcreon, and therefore we affirm the judgment of
I the court below discharging the rule against the sheriff.
Let the judgment of the court below be affirmed.
"
Bleckley, Justice, concurring.
As to whether the transfer by the comptroller-general to
the plaintiff in error was valid or not, is a question on which
I <io not and need not, for the purposes of this case, express
an opinion. It was not as thoroughly argued at the bar as
so difficult and important a question ought to be. The gen-
eral lien law of 1873 provides for tax liens, as well as many
other liens, and then declares that "all liens provided for by
this act may bo assigned by writing." Nor is it necessary to
decide now whether a public officer can use a process to col-
lect money, and then retain the money on account of an al-
leged defect in his authority to raise it. See 5G (za., 290 ; 8
Gr'l'f R. 334. Though the comptroller-general was made
a party to the rule :n the court below, he did not except to
the judgment. So far as Johnson, the plaintiff in error, is
concerned, the judgment discharging the rule against the
sheriff was, on the facts contained in the record, correct,
for the following reasons :
1. The transferee of a fi.fa. against specific property is
SEPTEMBER TERM, 1S79. 121
Harris et ai. vs. Ponnd^ et at.
not entitled to the surplus produced by an official sale of
the property^ over and above the amount of the^. /a. and
costs, but such surplus belongs to the owner of the prop-
erty.
2. When two or more Ji, /as, are proceeding in rem^ each
against different specific property, such as a lot of land,
money produced by a sale under one of the^. J^as, cannot
be applied to pay off any of the others. One lot of wild
land assessed by the comptroller-general, is not chargeable
with the taxes or costs due on another.
3. Where the comptroller-general has issued ^Jl.fa. for
taxes against certain land as wild, the sheriff ought not to
levy and sell, if the fact be that the land is not wild but
improved.
On these grounds I concur in the judgment of affirm-
ance.
Harrts et al. vs. Poonds et al.
In a rootcst between two sets of trustees of a camp-meeting ground,
one holding an appointment under tliu quarterly conference of the
Methodist church, and the other under a grant from the superior
court by virtue of authority claimed to be derived from the act uf
1872— Code, §1677— and both claiming to hold the title for the use
of the Methodist church of VVarren county for camp meeting wor-
ship, and no allegation being made that either has interfered or
threatens to interfere with the beneticiiiries in the enjoyment of the
religious worship at said camp ground, equity will not interfere by
injunction, but will leave the parties to settle the legal title by in-
formation in the nature of a q^ao warranto.
Equity. Injunction. Trusts. Before Jidgo Pottle.
Wilkes Superior Court. November Term, 1879.
Ponnds et al. filed their bill in Wilkes superior court
against Harris et aL^ setting out the following facts :
That some time prior to the 81st of December, 1838,
SUPREME COURT OF GEORGIA.
John T^isbet a»d Aaron T. Kcndrick deeded to Fuller and
other?, trnBtees of Fountain Methodist Episcopal Camp-
ground, at Fountain, Warren county, '200 acres of land for
the nse of the Methodist Episcopal church of Warren
coonty ; tliat the deed haa been lost, according to the in-
formation and belief of complainants, and that they also
believe Uiat the record of the same was destroyed by fire.
That on tho 3 let of December, 183S, the legislature incor-
porated for thirty years "The M. E. Camp-ground, in the
county of Warren, known by the name of ' Fountain Camp-
ground,' " naming as incorporators Aaron T. Kendrick and
all the grantees in said deed and their successoi'S in office,
giving them the power and authority usual in sncU char-
ters. That the third section of aaid charter provided as
follows; "And be it further enacted, that when any va-
cancy may happen in the trustees by death, resignation or
otherwise, that a majority of the tnisteeain office shall be,
and are liercby, required to fill any and every such vacancy
or vacancies from time to time," That on the expiration of
said charter, no renewal was made until the 7th of April,
1877, when, by an order of the superior court of Warren
county, defendants, as trustees of said camp-ground, were
named aa incorporators, and said camp-ground again incor-
porated. That they were never elected trustees by the M.
E. church or its authority; that tho said church allowed
them to remain until September, 1878, when, they refusing
to report to aaid church and acknowledge its authority, aaid
chnrcli, under its laws, dismissed them from office and ap-
pointed complainants as trustees of said camp-ground.
That defendants refuse to surrender the said camp-ground
to complainants, and threaten to proceed against them as
trespassers should they enter on said camp-ground. The
l>iU then refers to the act of 18U5— Code, §§'2343 ei eeq.—
jtnd recites that complainants have had their appointment
recorded as therein required. The bill prays for an injunc-
tion against defendants, to restrain them from holding the
oamp-ground, etc, and that they may be removed from
SEPTEMBER TERM, 1879. 123
Harris 6t at, i». Poanda et al.
office. Defendants demarred to the bill on the following
^ronnds :
iBt. Because there is no equity in the bill.
2d. Because title to the land embraced in the original
deed and charters was never in trustees of M. E. church,,
nor were they ever amenable as such trustees to the disci-
pline of said church, but title to said land was and is ia<>
other trustees, who are in no way subject to said church's
authority.
3d. Because complainants have no authority to act as
trustees of said camp-ground, not having been elected trus-
tees as is required in original deed and the acts of and order
of incorporation, as set out in exhibits to said bill.
4th. Because complainants have full and adequate relief
for all their alleged wrongs in an ejectment suit in a com-
mon law court.
On the hearing, the court overruled the demurrer and*
granted the injunction, and defendants excepted.
W. M. & M. P. Rebsb ; C. S. DqBosb, for plaintiffs in.
error.
W. D. TuTT, for defendants.
Jackson, Justice.
It is quite clear that equity has jurisdiction over charities
and religious trusts and uses in a particular and special
manner under our Code. §§3155, 3157, 3158. Indeed it
has such jurisdiction over trusts generally, Code, §3193, bat
especially over such trusts and uses as those set up in this
bill. Therefore we cannot say that the chancellor should
have dismissed the bill. Perhaps he was right to retain it
until the question of the legal title to the trusteeship of
this camp-ground could be tried and settled at law.
But the question here is not whether the bill should be
dismissed ; it is, ought the injunction to have been granted?
It seems that the trustees of both sides claimed the right to
124 SUPREME COURT OF GEORGIA.
HaitU et «U. 98. Poaads et cd.
administer the trust. Neither set, apparently from all the
allegations in the bill, set up any title adversQ to the bene-
ficiaries or uses to which the ground was dedicated. Both
sets appear from the allegations in the bill to be Methodists,
and the only difference seems this, that the one holds under
appointment of the quarterly conference, the other under
the court. Those holding under the court are in possession,
it seems, and the effect of the chancellor's judgment or
decree is to turn them out of, and put the others in control
of, the grounds. An injunction restrains ; it does not oust ;
its effect is to leave disputants in statu qiio ; it does not
actively intervene so as to change possession under a de
facto title ; at least, such is the scope of an interlocutory
injunction which only stands until the hearing, and which
is the act of the chancellor alone before the facts are found
by the jury.
The trustees who claim to be in under the appointment
of the court are certainly in de factOy and the question of
their title ought to be settled by the proper tribunal, wo
think, before they should be ejected and others put in pos-
session and control. So it was ruled substantially in Ilussey
V8. Gallagher y 61 Oa.y 86.
It is true that the defendants do not appear to have fol-
lowed the act with exactness under which they claim their
appointment, and when properly investigated under an in-
formation in the nature of a quo warranto, it may be made
to appear that their title is worthless. It seems to ns, how-
ever, that a proceeding at law of that sort is the remedy of
complainants nnder the allegations of their bill. They do
not allege that defendants are preventing, or threatening to
prevent, the Methodist people of Warren county from wor-
ship at the camp-ground. It is true that it is charged that
they have done something which is not acceptable to the
quarterly conference, but what that is is not distinctly
alleged, except that they do not make returns to that body.
If they were interfering with worship at the grounds, or
otherwise using the land for their own emolument, or
SEPTEMBER TERM, 1879. 125
O'Connor v$. The State.
changing the use and directing it to purposes inconsistent
with the trust, then equity would restrain until the hearing,
and on the hearing grant full relief ; but no such allega-
tions are made in the bill, and no depositions were exhib-
ited on either side, no answer put in, but every fact on
which the chancellor acted is set out in the bill.
While, therefore, on a quo warranio it may appear that
these defendants are not entitled to the trust, because more
than five applied to the court, and because camp-grounds
are not apparently within the statute under which they
hold — see Code, §1677; yet we hold that no reason appears
in the bill why the harsh remedy of interlocutory injunction
should be used against them.
Judgment reversed.
■
O'Connor V8, The State of Georgia.
1. A police officer may make aa arrest without a warrant for a crime
committed in his presence, or if the offender is endeavoring to
escape, or for other cause there is likely to be a failure of justice for
want of an officer to issue a warrant. But there must be an
offense committed by the party arrested.
2. "Where a police officer, without warrant, arrested a man who was
guilty of no offense, and in preventing an escape struck and killed
the prisoner, these facts would at least warrant a verdict of invol
untary manslaughter in the commission of an unlawful act.
8. Where the evidence and the prisoner's statement conflict, the latter
must yield to the former
OflScers. Municipal corporations. Police. Criminal
law. Evidence. Before Judge Simmons. Bibb Superior
Court. April Term, 1879.
To the report contained in the decision it is only neces-
sary to add the following grounds of the motion for new
trial :
(I). Because the verdict was contrary to law and evi-
dence.
126 SUPREME COURT OF GEORGIA.
O'Connor vs. The State.
i^^H I I _ ^K-
(2). Becaase the court erred in charging as follows: "If
you believe, from the evidence, that Franklin had not vio-
lated any criminal law of the state or any of the criminal
ordinances of the city, then the defendant had no right to
arrest him ; and if he did arrest him it was an unlawful act,
and if he struck him a mortal blow while under this illegal
arrest, and Franklin died from such blow, although the de-
fendant had DO intention to kill him when he struck him,
then he is guilty of involuntary manslaughter in the com-
mission of an unlawful act, and yon should so find/'
(3). Because the court charged the jury as fojlows : " In
making up your verdict you should not go outside of the
evidence sworn to on the stand."
C. J. Harris ; Hill & Harris ; A. O. Baoon, for plain-
tiflE in error.
C. L. Bartlett, solicitor-general ; Samuel Hall, for the
state.
Warner, Chief Justice.
• The defendant was indicted for the offense of murder,
and on his trial therefor was found guilty of involuntary
manslaughter in the commission of an unlawful act. A
motion was made for a new trial on the various grounds
contained therein, which was overruled, and the defendant
excepted.
1. 2. It appears from the evidence in the record, that the
defendant was a policeman in the city of Macon, and that
he arrested the deceased and was taking him to the barracks
in said city, that the deceased attempted to escape from'
him, when defendant struck him on the head with a club,
from which blow he died that same day, in the barracks,
where he was confined. There is no evidence in the record
that the deceased had committed any offense against the
state or the ordinances of the city, nor is there any evidence
that any person had lodged any complaint against the de-
ceased for having violated any law of the state or city and i
SEPTEMBER TERM, 1879. 127
O'Connor vs. The State.
notified the defeadant thereof, or that the deceased had
committed or attempted to commit any violation of the
law in the presence of the defendant at the time he arrested
him. It is true that the defendant, in his statement to the
jury, not under oath, says that he had heard that the de-
ceased had, on the day before the arrest, offered to sell a
pair of shoes found in his possession to Mrs. Noon, and at
the time of his arrest was trying to sell the shoes to Molly
Raoul. There was no evidence that the shoes had been
stolen from any person, but, on the contrary, it was found
that the deceased was a shoemaker, and that the sliocs had
been left with him by Fanny Cooper, the owner of them,
to be stretched, and that deceased was to bring them to her
the morning he was arrested with them in his possession.
The defendant did not offer to prove by Mrs. Noon, or by
Molly Raoul, the truth of his statement in regard to the
deceased offering to sell the shoes to them, or either of
them, even if that would have authorized him to have made
the arrest of deceased. An officer may make an arrest
without a warrant for a crime committed in his presence,
or if the offender is endeavoring to escape, or for other
cause there is likely to be a failure of justice for want of
an officer to issue a warrant. Code, §4723. But there
must be an offense committed by the party arrested. In
the case under review there was no offense committed by
the deceased to have authorized his arrest by the defendant.
We have carefully examined the various grounds of error
assigned to the rulings of the court during the progress of
the trial, as well as to the charge of the court to the jury,
and we iind no error in overruling the motion for a new
trial. In our judgment the law and the facts in the case
required .at least the verdict which the jury have rendered.
3. In charging the jury as to the prisoner's statement,
nothing is better to be used than the language of the stat-
ute, and where the evidence and 'the statement conflict, the
latter should yield to the former. Brown vs. The State^ 60
Oa., 210.
Let the judgment of the court below be affirmed.
128 SUPREME COURT OF GEORGIA.
DaviB & Co. w. The Mayor and ConncU of Macoa
Davis & Company vs. The Mayor and Council of Macx)N.
1. The city of Macon, having power by charter to tax all persons exer-
cising within the city any profession, trade or calling of any nature
whatsoever, may levy and collect a license tax upon every firm re-
tailing fresh or butcher's meat in the city, whether from stalls,
stores, or by peddling the same on the streets. An exception in the
ordinance exempting farmers selling their own produce, does not
make the tax invalid as to others. The tax is a business tax, and a
farmer's business is production, not trade, and the sale by himself
of what he rears or produces is merely occasional and incidental.
3. The city may also tax a butcher or retailer of meats, upon the wagon
or wagons used in his business, and this likewise is a part of the
business tax. The validity of this specific tax is not impaired by
exempting the wagons used in delivering milk from dairies on
country farms, since the city may tax one class of business and ex-
empt another, or may tax different occupations and their instru-
mentalities unequally.
8. That all property taxes have been paid, is no obstacle to the impo-
sition and collection of a business tax. measured in part or in whole
by the employment and use of vehicles already taxed ad valorem as
property.
4. The fact that the meat in which a retailer deals was produced in
Georgia, and was never in the city until carried in for delivery from
the wagon to customers at their doors, will not hinder the city from
taxing the retailer on his business.
5. A butcher whose residence, shop and slaughter-pen are all out of
the city limits, and who purchases cattle outside, and slaughters
them outside, and has no place of business inside, but who habitu-
ally hauls inside a part of his fresh meat, and from his wagon de-
livers it to regular customers at their doors in the city, making no
charge, and receiving no compensation for the delivery, is within the
ordinance referred to above, both as to license tax and the specific tax
upon his wagon ; and the ordinance is none the less obligatory upon
him than upon residents of the city who retail fresh or butcher's
meat therein, and use wagons for delivering the same to customers.
Injunction. Municipal corporations. Tax. Constitu-
tional law. License. Before Judge Simmons. Bibb County.
At Chambers. September 16, 1879.
Reported in the opinion.
John L. Hardeman, for plaintiffs in error.
SEPTEMBER TERM, 1879. 129
Davia & Co. vs. The Mayor and Coancil of Macon.
W. B. Hill, for defendants.
Bleckley, Justice.
In Jnly, 1879, the city corporation of Macon issued a^.
fa. against H. G. Davis & Co. for fifty dollars, "it being
license city tax for retailing fresh and butcher's meats in
the city, and peddling the same on the streets, for the year
1879." Also sKjl,/a, for twenty-five dollars, "it being li-
cense city tax for running a one-horse wagon for the year
1879." Both thesejJ.yJw. were levied by the city marshal
upon certain personal property of Davis & Co. An ordi-
nance of the city, passed June 12th, 1879, declared that the
various amounts specified therein should be levied and col-
lected as license and business taxes for the year 1879;
among the numerous specifications in the ordinance were
the following : "Each person or firm (farmers selling their
own produce excepted) retailing fresh or butcher's meat in
the city, whether from stalls, stores, or by .peddling the
same on the streets, shall pay a license of $50.00. . . .
"For each and every wagon used by butchers and bakers
in their business, and wagons used by brewers and manu-
facturers of soda water, or for the delivery of oil, milk or
any other article (except wagons delivering milk from dai-
ries on country farms), and package delivery wagons, where
such wagons are used for hauling in the city, and drawn by
one horse, shall pay $25.00
By charter, the city of Macon has power to tax property,
real and personal, within the city, at a rate not exceeding
(for all purposes) one and a half per cent, ad valorem^ and
also "power to levy and collect a tax upon .... all
persons exercising within the city any profession, trade or
calling, or business of any nature whatever." Acts of
1871-2, pp. 120, 121. The constitution of 1877 (art, vii,
section 2) declares "all taxation shall be uniform upon the
same class of subjects, and ad valorem on all property sub-
ject to be taxed, within the territorial limits of the authority
130 SUPREME. COURT OF GEORGIA.
Davis A Co. w. Tbe Mayor and Coaocii of Macoa.
levying the tax, and ehall be levied and collected onder
general laws. . . . The general assembly may, by law,
exempt from taxation (certain specitied property). No poll-
tax shall be levied except for edacational purposes, and such
tax shall not exceed one dollar annually, upon each poll.
All laws exempting property from taxation, other than the
property herein enumerated, shall be void." The Code, in
section 1605, provides that "No municipal corporation of
this state shall levy or assess a tax on cotton or the sales
thereof, nor shall any such corporation levy or asses a tax
on any agricultural products raised in this state, or the sales
thereof (other than cotton), until after the expiration of three
months from the time of their introduction into said cor-
porations."
On the first of August, 1879, H. G. Davis & Co. filed
their bill against the corporation of Macon, praying for an
injunction against the collection of the two executions
above described, and that said corporation and its ofiicers
be restrained from proceeding further at law touching the
matters in questions. At the hearing of the order to show
cause, the injunction was refused, and that is the alleged
error.
The charges of the bill make the following case : The
complainants do not reside within the corporate limits of
the city ; they carry on the business of butchers, but have
no slaughter-pen, stall or place of business within the city ;
their slaughter pen is about one mile outside of the city
limits, and their shop is in Yineville ; a few of their regu-
lar city customers reside in the city of Macon, and the com-
plainants deliver to these, at their doors, fresh meats, using
for this purpose a one-horse wagon, which wagon is the
property of complainants; that for such delivery they
charge nothing, nor are they paid anything ; that they do
not retail fresh or butcher^s meat in the city from a stall or
store, nor peddle the same upon the streets ; and that the
cattle they slaughter are raised in Georgia, not bought in
the city, but bought from farmers in Bibb and adjacent
SEPTEMBER TERM,. 1879. 131
D&vi8 & Co. vt. The Mayor and Coancil of Macon.
counties, brought to the complainants' pens outside of the
city limits, and there slaughtered, and the interval between
the purchase of the cattle and the sale of the meats is never
longer than two weeks ; and that the city has no public
market. The bill proceeds to allege that ihe executions
were issued and levied ; complains that the levies were ex-
cessive, etc., and then attacks tiie validity of the ordinance
for the following reasons : That the tax is not uniform
upon the class taxed ; that the city has no authority to
Hcense delivery wagons of non-residents used for their own
purposes; that the city has no authority to tax agricultural
products raised in Georgia, or the sale thereof, until after
the expiration of three months from their introduction into
the city ; that by exempting farmers selling their own pro-
duce, the ordinance fails in uniformity ; that complainants
have paid all state and county taxes due on their property ;
that the city does the greater part of the work on the streets
with the Bibb county chain-gang, to the support of which
the city does not contribute. The bill also makes the point
that the complainants are not within the provisions of the
ordinance, because they are non-residents of the city, have
no place of business within it, and do not retail meats
within it from stalls or stores, or by peddling on the streets.
1. The power of the city to impose the so-called license
tax is denied. But the authority to levy and collect a tax
upon all persons exercising within the city any profession,
trade or calling or business of any nature whatever, is ex-
pressly granted by the charter. This power is surely broad
enough to reach the complainants if they carry on, within
the city, the business of retailing fresh or butcher's meat.
Why not ? 59 Ga.y I 88 ; 60 lb,, 133.
The ordinance is further attacked as invalid because it
has an exception in it exempting from its operation farmers
selling their own produce. The exception would probably
have been implied had it not been expressed, for the tax
imposed is a business tax, a tax on avocation or calling.
The business of a farmer is production, not trade, and the
132 SUPREME COURT OF GEORGIA.
DuviB & Co. vs. The Mayor and Conncil of Macon.
sale directly by himself of what he rears or produces is
merely occasional or incidental, No doubt very considera-
ble restrictions might be imposed upon farmers as to the
manner of conducting their trade ; but while the public
authority can restrict them in that respect, it is not obh'ged
to do so as a condition of taxing other persons on their
business or avocations. We need not and will not say that
for the purpose of upholding a general meat-market, or a
system of meat-markets, in a city, farmers could not be
prohibited from retailing or peddling meat of their own
raising within certain hours, and perhaps they could be
confined to certain localities within the corporate limits.
We have not thought it necessary to advert to authority on
such questions as these, or even to address our minds to
them with any earnestness, for it is manifest that, constru-
ing the ordinance in the light of the charter, the tax with
which we are dealing is a business tax ; and the disposition
of meat as the immediate sequel to rearing animals upon a
farm is obviously no separate calling from that of farming.
It is but the primary link of connection between the pro-
ducer and the consumer — a link fastened to the farmer's vo-
cation, and with which the commercial chain begins if other
links are added before the consumer is reached, and which
constitutes the entire process where consumption is by the
first purchaser. The constitutional requirement that "all
taxation shall be uniform upon the same class of subjects,"
is not infringed by the ordinance in the provision which we
are considering. The producer whose trade is incident to
production, and the middle-man whose trade is intermediary
between the producer and the consumer, belong not to the
same class, but to different classes of subjects in a scheme
of taxation. At least, the difference is wide enough to
justify, if not to compel, its recognition in shaping the
scheme.
2. The tax of the complainants upon the wagon which
they use in their business is attacked because the ordinance
exempts wagons used in delivering milk from dairies on
SEPTEMBER TERM, 1879. 133
Davis & Co. vs. The Mayor aod CoancU of Macon.
conntry farms; this discrimination also is urged as breaking
up the uniformity which the constitution requires as to the
same subjects of taxation. It is manifest that this wagon
tax is a part of the business tax, and nothing can be plainer
than that the delivery of milk from a farm-dairy is a differ-
ent business from that of retailing butcher's or fresh meat.
In adjusting a business tax, those who are engaged in the
same business are to be taxed alike; but there is nothing
in the constitution to prevent the different occupations and
their instrumentalities from being taxed unequally, nor to
prevent the taxation of one class of business and the ex-
emption of another. 60 Ga,j 597.
3. It is insisted, further, that by the tax upon the wagon,
the ad valorem principle of the constitution is violated.
This objection proceeds upon the theory that the wagon is
mere property, and subject only to state and county taxes,
the ownere not residing within the corporate limits of
Macon, which taxes have been duly assessed and paid. The
complainants contend that having paid all taxes on the
value of the wagon as property with which they are charge-
able, they cannot be required to pay an additional specific
tax to the city upon the same property. But as already
stated, the tax now in question is not a property tax, but a
business tax; the wagon is treated as an instrument used
in carrying on the business of the complainants within the
city, and it has been ruled, and no doubt rightly ruled, that
the number and kind of vehicles may be regarded in meas-
uring a tax of this description. 62 Ga.y 645. That the
complainants are in no default to the state and county in
respect to taxes upon the value of the wagon as property,
is no protection to them against the business tax now de-
manded. Frommer vs. Richmond, 31 Grattan, 646 ; S. C,
8 Eeporter, 538. The suggestion in the bill that the streets
of the city are not kept in repair at municipal expense, but
by the labor of the county convicts, needs no discussion ;
for it does not appear that the city has been absolved from
the legal obligation of keeping its streets in order. By
134 SUPREME COURT OF GEORGIA.
Davis A Co. vg. The Mayor and Coancil of Macon.
what means, as matter of fact, the obligation is complied
with for the present, seems quite immaterial. That the
complainants do not burden their customers with any
charge for deliveries, cannot affect the question of taxat'-on.
4. The next point relattss to the effect of section 1605 of
the Code upon both of the assessments we are considering.
That section inhibits taxation by any municipal corporation
on agricultural products raised in this state, or on the sales
thereof, until after the expiration of three months from their
introduction into the corporation. If fresh or butcher's
meat can be classed as an agricultural product, without some-
thing in the context of the statute to show that the phrase,
agricultural products, was, in this particular instance,
used in a sense animal as well as in a sense vegetable, there
ought to be evidence that the meat in question was pro-
duced in the pursuit or by the fruits of agriculture. Cattle, so
far as we know, may be Georgia raised and belong to farmers,
and yet never have consumed a pound of food derived from
agriculture. In the middle and lower parts of the state,
herdsmen or stock-raisers are perhaps indebted to natural
pasturage alone for the subsistence and errowth of the ani-
mals which they rear, and which afterwards find their way
to market. We are not informed by the record that the
agricultural industry of the state produced, or contributed
to the production of the meats in which the complainants
dealt. The cattle were bought from farmers, but there is
no express allegation that they were " agricultural products."
And when it is thought of closely, would it not be rather
an unusual application of the phrase ^'agricultural products^'
to make it comprehend beef cattle ? In ordinary usage, is
not that phrase confined to the yield of the soil, as corn,
wheat, rye, oats, hay, etc., in its primary form ? When
there has been conversion of the fruits of the soil into ani-
mal tissues, are we still to apply the phrase 'if And suppose
we are to disregard the change in its first stage, and call a
cow or a steer agricultural product, must we carry the name
forward to the steak or roast which the butcher sells hs from
SEPTEMBER TERM, 1879. 135
Davis & Co. V9. The Mayor and Coancil of Macon.
the slaughtered animal ? If cattle fall nnder the dendmi-
nation, so do hogs ; and if beef, so does bacon. Passing
from this verbal difficulty, and turning to an argument of
altogether another class, it is to be noted that the tux we are
considering is not laid upon the beef sold, nor upon the
sale thereof, nor is the amount of the tax measured by the
amount of sales. The tax is upon business and upon the
vehicle used therein, and to conduct such business by such
means has no necessary relation to "agricultural products
raised in this state,'- granting that fresh beef is to be classed
as an agricultural product. It would be possible to conduct a
like business by like means with beef raised elsewhere ; and
if the complainants chose to deal in Georgia raised beef,
as a husinesSy are they to be therefore exempted from all
business tax ? Is a merchant or factor to pay no business tax
because he sells Georgia produce, rather than Alabama or
Tennessee produce ? And is the taxability or non-taxability
of a butcher to depend upon the state in which the animals
be slaughters happened to be reared ? Granting that the
discrimination could be made (and that it could is by no
means certain), must it be made ? We rather think not.
Could a lawyer escape a professional tax by confining his
practice to cases in which non-taxable property, such as
that used for worship or burial, public charity, colleges, in-
corporated academies, etc., was involved or in controversy ?
It would be strange if he could.
5. The ordinance being good, are the complainants with-
in it ? Their residence, their shop and their slaughter-pen
are all out of the city limits. They purchase and slaughter
outside, and have no place of business inside, but they hab-
itually haul inside a part of their fresh meat, and from their
wagon deliver to regular customers at the doors of the lat-
ter, within the city ; they make no charge for the delivery,
but it 18 evident that they distribute the meat from their
wagon in retail parcels. Where they cut and weigh to suit
parcels to the demand of customers, does not appear. We
are to suppose they do it in the wagon, as they do not aver
136 SUPREME COURT OF GEORGIA.
Davis & Co. vs. The Mayor and Coancil of Macon.
to the contrary. The pleadings and evidence are equally
silent as to where orders are taken, and where payments
are made, and whether made on each and every delivery, or
by the w^eek, month or year. There is no suggestion that
the meat is not paid for, though the hauling is free. We
cannot see but that the wagon is made a kind of portable
shop, and moved daily to the door of each customer. Al-
though the complainants allege that they do not peddle
meats, they seem to rest the allegation on the fact that they
• confine their dealings to regular customers; but where a
dealer supplies constantly recurring wants, he may be a
peddler, however regular and uniform the demand may be
for his wares. There is a striking degree of regularity in
the patronage of almost every business. When I was a
solicitor-general, nothing in my experience struck me with
more force than that, terra after term, in each county of my
circuit, I met substantially the same body of people who
had connection with the criminal docket — the same array of
prosecutors, defendants and witnesses. Here and there a
new man would come in, and occasionally a prosecutor
would become a prosecute//, and vioe veraa^ and the witness
class would sometimes disintegrate and mix up with the
other two ; but my intimates were, and continued to be for
four years, very much the same individuals. They were
my regular customers. It is not improbable that every ped-
dler who follows the road has his regular customers, and
that the regularity with which they buy induces him to re-
turn again and again to the same neighborhood, unless he
has nomadic tastes which solicit him to disregard all routine.
The complainants vouchsafe to us no explanation of their
method of dealing with their customers, save that they de-
liver at their doors, and make no charge for delivery.
Making, as we are bound to do, every reasonable presump-
tion against them where they might explain and do not, we
hold that they are within the ordinance, both as to the
license tax and the specific tax upon the wagon, and that
the ordinance is no less obligatory upon them than upon
SEPTEMBER TERM, 3879. 187
TaramoDS V9. Hamilton.
residents of the city who retail fresh or butcher's meat
therein, and use a wagon or wagons for making delivery to
customers.
Judgment aifirmed.
TcMMONs vs. Hamilton.
A. deed executed oa the 10th of September, 1874, while there was no
law making usury illegal in Georgia, could not be tainted with
ufiury, and therefore void as title.
I
In^^erest and usury. Title. Deeds. Before Judge Un
DERWOOD. Floyd Superior Court. March Term, 1879.
Mrs. Tnmmons sued out a warrant to dispossess Hamil-
ton of certain property occupied by him, on the allegation
that he was a tenant holding over. He tiled a counter-affi-
davit and issue was joined, the point at issue being whether
Mrs. Tummons was the landlady of Hamilton or not.
Plaintiff put in evidence, among other things, a deed from
the defendant to her, dated September 10th, 1874, convey-
ing the premises in dispute. Defendant contended that the
deed did not convey title to plaintiff, because it was only
intended as a security for a debt arising out of the sale of a
noule by plaintiff to him in the summer of 1874, and be-
cause usury was charged, and a deed tainted with usury
would be void. On this point the court charged as fol-
lows : " If the deed was made in consideration of the pay-
ment of a note in wiiich there was usury, and the consider-
ation of the deed was tainted with usury, no 'tenancy can
be predicated upon a title thus tainted with usury, the rela-
tion of landlord and tenant cannot arise in such a case, and
the tenant is not estopped from denying the landlord's title ;
if you are satisfied from the evidence that the deed is
founded upon any such usurious contract, the plaintiff can-
not recover."
138 SUPREME COURT OF GEORGIA.
Tummons vs. Hamilton.
After a verdict for defendant, plaintiff moved for a new
trial. It was refused, and she excepted.
W. D. Elam, by brief, for plaintiff in error.
No appearance for defendant.
Jackson, Justice.
A motion was made for a new trial on various grounds,
none of which seem to be material and tenable except the
assiornment of error in regard to the taint of usurv in the
deed from Hamilton to Mrs. Tummons. That deed was
made on the loth of September, 1874, pending the aboli-
tion of usury in this state, and the court charged that " if
the deed was made in consideration of the payment of a
note in which there was usury, and the consideration of the
the deed was tainted with usury, no tenancy can be predi-
cated upon a title thus tainted with usury, the relation of
landlord and tenant cannot arise in such a case, and the ten-
ant is not estopped from denying the landlord's title. If
vou are satisfied from the evidence that the deed is founded
upon such usurious contract, the plaintiff cannot recover."
Under the law as ruled by this court a deed made on the
10th of December, 1874, could not be so tainted with usury
as to render the title void, and therefore this charge is erro-
neous ; and inasmuch as the verdict of the jury is in these
words : " We, the jury, find for the defendant because of
usury," the error is vital.
In the case of Ballard vs. The Peoples^ Ba/nk of Nevy-
nan^ 61 Ga.^ 458, it was held that a deed made on the 25th
of March, 1873, was not usurious, all laws on the subject of
usury having been repealed on the 19th of February, 1873.
So in the case of a mortgage in Neil vs. Bunn^ 58 (?a.,
583, the same point in principle was ruled. So in Broach
vs. Barjleld, 57 Ga.. 601, it was held that " in 1874 there
was no law in Georgia making usurious any agreement,
written or verbal, for any rate of interest whatever." So
SEPTEMBER TERM, 1879. 13»
ThomaB, trastee, et al. v». Jones & KorrU.
in 59 Oa,, 616, the case of Cooper V8, BrasweUj it was
held that " from February 13th, 1873, up to Febrnary 24:th,
1^75, there was no law against usary in this state; and
with the repeal of the usary laws, the act annulling a deed
tainted with usury, we think, was also repealed. Hence
the deed of December, 1874, was good."
So that the question is not open with us and the Judg-
ment must be reversed, inasmuch as the right of plaintiff to
dispossess defendant in the dispossessory warrant rested on
the deed made in 1874, and the court charged and the jury
found in the teeth of the decisions made in the cases cited.
Judgment reversed.
Thomas, trustee, et al, vs. Jones & Nobrib.
1. That the judge of the circuit who granted a rule nmon amotioD
for Dew trial is related to one of the parties within the fourth degree,
is not good objection to the hearing of the motion by the non-resideat
judge who tried the case, and to whom the motion was snbmitled
by consent of parties.
2. Two of the grounds, among others, being that the verdict was con
trary to law and evidence, and the resident Judge having granted a
rule nm, the motion was submitted by consent to the non-resident
judge who tried the case. In answer to the rule, respondent showed
for cause that neither the grounds of the motion nor the brief of
the evidence had been approved The Judge hearing the motion
corrected and approved them and overruled the objection :
Held^ that there was no error in this proceeding.
3. That court was adjourned to a specified time at which no cases were
to be tried except by consent, did not prevent the filing of a motion
for a new trial.
4. The verdict w&s proper against the trust estate, but the usee for life
and her truHtee alone being parties defendant, the judgment should
have been against the life estate only.
Practice in the Superior Court. New trial. Trusts.
Parties. Judgments. Before Judge Pottlb. Kichmond
Snperior Court. October Term, 1878.
9
140 SUPREME COURT OF GEORGIA.
Thomas, trastee, et al. vt. Jooeo A Norris.
Keported in the decision.
J. 0. C. Black, for plaintiffs in error.
F. H. MiULSB, for defendants.
Warner, Chief Justice.
It appears from the record in this case that to April term,
1876, of Richmond snperior court, Jones & Norris com-
raenced their action at law against J. J. Thomas and J. L.
Clanton, trustees of Gertrude Thomas, wife of said J. J.,
and against said Gertrude Thomas, to recover out of the
trust estate the sum of $992.36, a bill of particulars being
annexed showing the provisions furnished from June 20,
1874, to December 2, 1874, with names of twelve laborers
employed. Jf^on est inventus^ was returned as to Clanton,
bnt J. J. Thomas, trustee, and Gertrude Thomas, acknowl-
edged service March 2, 1876.
The trust was created under deed from Turner Clanton
dated January 6, 1854, and recorded April 4, 1854.
The terms of the trust are as follows : ^^ For the sole and
separate use of said Gertrude, during her natural life, and
tliat the same shall not be liable for the debts, contracts or
liabilities of the said Jefferson, or any after-taken husband,
and that upon the death of said Gertrude, to vest in her
child or children, if any she have, share and share alike,
the issue of a deceased child to take in the place and stead
of its deceased parent. But if the said Gertrude leave no
child or children, or the descendants of a ciiild in life at
the time of her death, as aforesaid, then the same shall re-
turn to and vest in the said Turner Clanton, .if in life, and
if not in life, then to the heirs at law of the said Turner
Clanton." All the property set forth in plaintiffs' declara-
ion was held under said trust. Portion was afterwards
conveyed, February 1, 1868, from J. J. Thomas, individu-
ally, and portion from distribution of Turner Clanton's
esUte, March 30, 1869.
SEPTEMBER TERM, 1879. 141
Thomas, traf^teo, et al. vg. Jones & Korrls.
The declaration sets out as follows : " That the children
interested in the remainder and now in life are Turner C.
Thomas, Mary Bell Thomas, Jefferson J. Thomas, Cora
Lou Thomas, Julian C. Thomas and Katherine Thomas.
" That the trust estate became and is now liable for these
provisions, money and supplies furnished the said trustees
and cestui que trncsty to feed and clothe the laborers engaged
in cultivating the land, raising the crops thereon, and in
keeping the premises in repair. When the debt became
due the said J. Jefferson Thomas, as one of the trustees,
executed his promissory note dated May 4, 1876, and due
December 1, thereafter, for the sum of $1,124.35, and de-
livered the same to J. B. Norris, one of your petitioners,
which note was not paid at maturity.
"That the said J. Jefferson Thomas is entirely insolvent
and cannot be held liable on said note as trustee, which is
hereby tendered back to him."
J. J. Thomas as trustee, and Gertrude Thomas separately,
pleaded the general issue, which pleas were sworn to October
20th and 23d, 1877, they being represented by T. Oak-
man, Esq.
After this a portion of the trust property was placed in
the hands of defendants' attorney, Thaddeus Oakman, and
he ordered by J. J. Thomas, trustee, in writing, filed with the
record, to pay over the moneys collected to plaintiffs' claim
then in suit against the trust estate, and payments were
made as set out in the record and allowed in the judgment
The case was heard and verdict rendered November 6,
1878, as follows :
" We, the jury, "find for plaintiffs against the trust estate
set out in the petition, the sum of $952.78, with interest
and costs of suit, to be enforced by execution against the
property and without personal liability of the trustee, as
the trust estate is liable for the debt and its payment."
Judgment was entered November 6, 1878, against the
property, and execution stayed by Judge E. H. Pottle, of
the Northern circuit, when he entered the judgment on
the verdict, for thirty days.
142 SUPREME COURT OF GEOKGIA.
ThomBi, tnut«e. ti of. n. Jonea A Noirli.
On Jannary 22, 1879, motion for a new trial was filed,
and supersedeas granted by Judge Claiboenk Snead, of
AngDsta circnit, and rule niM made returnable January 25,
1879.
The gronnde of motion were :
1. Because said verdict is contrary to law.
2. Because said verdict is contrary to evidence, and with-
out snfEcient evidence to support it.
3. Becanse the court overruled a motion of defendants
to dismiss said case, on the grounds that the petition on ita
face did not make said trust estate liable in said action.
4. Because tlie court held that the facts alleged rendered
eaid trust estate liable in said action.
5. Because the court struck defendants' plea of general
issue, and held defendants must plead specially.
Cause was shown by Jones & Norris aa follows :
1. The rule nisi is void, having been issued by hie Honor
Judge Snead, who is related within the fourth degree of
affinity to Gertrude Thomas, one of the defendants, and
has, after one stay of execution has expired, been renewed
witiiout cause.
2. Because the grounds of the motion are not approved
by the Hon. E. H. Pottle, who presided in the case, and
no reason given for his not doing so.
3. Because no brief of testimony has been filed and ap-
proved by the said judge, or any other judge, or consented
to by the plaintiffs prior to or at the filing of said motion.
4. Because the brief of evidence filed is incorrect in the
following particulars: "It was admitted by defendants'
attorney that the articles sued for had been delivered to the
trustee and used for the maintenance and support of the
laborers employed in cultivating the trust estate and prop-
erty in Richmond and Columbia counties, set out in the
petition, for the use and benefit of the trust estate, the income
of which estate was received by him as trustee, the names
of the laborers appearing in the bill of particulars. That
after the suit was brought, and plea of general issne Sled,
SEPTEMBER TERM, 18T9.
a part of the trast property was placed io the hands of
Thaddena Oakman, defendants' attorney, to pay this debt
as one dne by the trust estate, and that the amount of the
payments by him were to be credited on the judgment if
rendered in favor of the plaintiffs, he (Oakman), not then
having the original receipts present in court. Also, that all
the beneficiaries of the trust were correctly set out in the
petition.-'
5, Because the session of the cour' at which the motion
IB now made is specially for criminal cases, under the act
authorizing such sessionB, and the motion for new trial is
therefore not filed in time nor within sixty days from the
rendition of the judgment which stayed execution thirty
days.
6, Because the motion failed to set out the events of the
trial, which are as fallows : " Defendants demurred to the
declaration, which demurrer was overruled. Plaintiffs then
put in evidence the deeds, will, and so forth, creating the
trust as set out in the petition, with the admissions set out
ill tlie 4th ol)Jei!tiu[i, in i.ddition to the brief filed, when de-
fondants moved for a nmi-suit." Upon the discnssion of
this motion the court asked what plea was tiled, to which a
reply wae given the general issue only ; the judge then re-
marked (t was insufficient, Hud defendants should plead spe-
cially. Plaintiffs' attorney then stated that under the evi-
dence before the court it was solely a matter or question of
law applicable to tlie fueta which were not in controversy,
Uid proposed that a verdict should be taken in accordance
with the ruling of the court as to tlie liability of the trust
aetate for debts created for maintaining the laborers thereon.
The proposition was consented to, and after argument the
conrt held the trust estate liable, and a verdict was taken
afioordingly, without further objection from defendants'
attorney.
The minutes of Richmond superior court show:
That the regular October term, 1878, commenced Octo-
bor SI, and was held four weeks, dnring which time juries
were in attendance.
144 SUPREME COURT OF GEORGIA.
Thomas, tmstee, et al. iv. Jonae A Norris.
On November 14, 1878, Judge Potfle presiding, the
following special jurors were drawn : thirty-six for second
day of December, 1878.
Court adjourned to November 15, 1878. November 15,
met and adjourned to November 16, 1878, November 16,
met and adjourned, no time being named, but order taken
afterwards fixed the day to December 2, 1878. Decem-
ber 2, court met pursuant to adjournment, Judge Gibson
presiding. Adjourned to December 17, 1878, and daily to
December 21, and then until 13th January, 1879. On 20th
December, jurors were drawn for the court to meet January
13, 1879.
Court met January 13, 1879, Judge Sn had presiding, and
continued daily in session until rule nisi granted January
22, 1879.
It is admitted that no order appears on the minutes call-
ing any adjourned or special term of the court.
Also, that about 20th December a meeting of the bar was
held in the court-room, at which the presiding judge and
judge elect were present, when it was, after hearing the
views of Judge Snuad about the court to meet in January,
resolved that no cases would be tried at the January ses
sion of the court, except by consent, when that term met.
The judge refused, in view of this action of the bar, to
allow a motion to be made to dismiss a plea, parties not con-
senting.
At the time of the passage of the order of the judge
correcting the minutes so as to fix a day of adjournment,
Judge Snbad ruled that he did not construe the action of
the bar to prohibit the filing of a motion for new trial, or
the correction by the court of its own minutes.
After the filing of motion, granting of rule and filing of
return thereto, an order was passed as follows : " It ap-
pearing that this court was adjourned on the 16th of No-
vember last until the 2d day of December thereafter, but
that entering the same on the minutes the clerk failed to
state the term to which the court adjourned :
SEPTEMBER TERM, 1879. 145
Thomas, tzastee, et al. vt. Jaae% A Norris.
^^ It 18 ordered that the clerk amend the minates by
entering thereon the day to which the coart adjourned, and
that this order be placed on the ofiinutes.
Claiborne Snbad, Judge Superior Court."
After the return of the rule an order was takeu as follows :
^'Parties by their counsel in the above-stated case consenting,
it is ordered that said motion for new trial be submitted
to the Hon. E. H. Pottle, Judge of the Northern Circuit,
who presided in said case, to be heard and determined in
vacation, with liberty to either party to except as in term
time. No right is intended to be waived hereby by either
party, except the question of jurisdiction in the granting of
the rule nisi by Judge Snkad, but not the time and term
at which the action was had."
The papers were then submitted to Judge Pottle, who
overruled the motion February 22, 1879.
On the brief of evidence and motion for new trial he
certified as follows : " I certify that the brief of evidence
16 correct, except that which is contained in the fourth
ground of plaintiifs, in answer to the rule in this case, should
be made part of the brief ; such ^as the testimony allowed
on the trial.
E. H. PoTFLE, Judge Superior Courts N. C."
" I also certify that the grounds of the motion are correctly
stated except that the facts set forth by plaintiffs^ counsel
in his sixth ground of answer to the rule is a true veraion
of the history of said case during the progress of the trial,
and they are adopted by me.
E. H. Pottle, Judge Superior Courts N. C."
February, 22, 1879.
The defendants' brief of evidence, previously filed, ad-
mitted the trust as set out in the declaration, that the prop-
erty was held thereunder, the giving of the promissory
note set out to close the account, that J. J. Thomas pur-
chased the articles in bill of particulars, and gave the note
as trustee, and was insolvent.
The assignment of error in bill of exceptions is, refusal
146 SUPREME COURT OF GEORGIA.
Ths Stale a rtl. Ijuch n. Brldj[«, jailer, ei al.
to prant new trial on the grounds set forth in the Baid
motion.
1, 3, 3. Thegronnds insisted on by the plaintiffs by way
of objection to the defeadants' motion for a new trial being
heard and considered by the court ashercinboforoset forth,
were not well taken.
In view of the evidence in the record, the verdict was
right, bnt from that evidence the court sbonld have entered
a judgment on the verdict for the sale of the life estate only
of Mrs. Thomas in the trust property, and not the entire
cnrj/asoitha property in which tlie remaindermen were in-
terested. We therefore affirm thefindingof the jnrjand the
overniling of the motion for a new trial, and direct that the
judgment of the court tbercoh be modified so as to order a
sale of the life estate only of Mrs, Thomas in the tnist
property, or bo much thereof as may be necessary to psiy
the pkintiSs' demand against it.
Let the judgment of the court below be affirmed, with
directions ae herein indicated.
The State ex rel. Ltncb vs. Bkidoes, jailer, et al.
] . C)o Aofedi eorjnu in bebalf of one confiDed under mesne procesa for
thu recover; of perBoual property, tlie legality of tbe inipriBODmeDi
does Dot depend upon the truth of Ibe plaintiff's affidavit, but upon
the sufficiency and due verification of the nialerial facts nllcgeil
Ihorein, together witb the sulwtnDOO of Ibe declaration, the juris-
diction of the court, and tha sheriff's return. If the court has jur-
isdiclion of the person and of tbe subject matter, and tUe declara-
tion sets forth a cauae of Action, and the affidavit conforms to tbe
slitlute, and there ia proper process, witb due service, and tbe prop-
erly has not been seized because it was nol to be found, and the re-
quisite bond and security have not bcea given, tbe prisoner ought
to be remanded.
8. la tbe present case, neither the affidavit nor ihe declaration, nor do
tlioy both together, show the commission of a larceny or other
fcloDy, witb full certunty.
SEPTEMBER TERM, 1879.
ThB Stale»r ril Ijnch m, Brldxes,
3. When Ihe wi(e of n prisoner sues out a habeas coiyai, she cun bring
a writ of error upon the final decision made on tbe hearing of the
kabea» corpu*.
4. An acknowledgment of service on a bill of exceplions by counsel
BJjiningasaltorneys for "respondents," mill be construed as evidence
of service on nil the respondents, nbere the record fails to show
Ihnt any of the respondents were represented by different counsel
In the court below.
Habeas corpus. Husband und wife. Parties, Practice
in tlie Supreme Court. Before Judge Snkad, Riuhinoiid
Coanty. At Cliambci-s. Febniarj- 18, 1879.
On the 18th day of November, 1878, there was tiled in
the clerk's office of Richmond superior court, aii original
affidavit as follows:
" Stits op Oeoroia. Richmond County.
"Personally appeared, Hugh Dempsey who after being duly sworn,
saya that be \g the supertnlendenl nnd agent acting in this behalf for
the Southern Evpress Company, n corporation exisliug under iind hv
virtue of the laws of the stale of Georgia. That stiid corporation ia
about to commence nn nciinn at Uw against Waller S. Lyuch. leturnu'
ble to tbe April term, 18TD. of Uichmond superior court, for the recov-
ery of certain peraonal properly, consisting of a certain package done
up in biifl paper and having wrillcn thereon ' $25,000, Reeves, Nichol-
son & Co.. ilbtiw, tia.,' W\t aame being sealed with wax having the
initlaU of U. W. W. .t Co. stamped itiereon, measuring about ten
inches in length by seviii and half inches in width, and about six and
half inches in deplli. ami shipped by Geo. W. Williams & Co., of
Charleston, South Curolinii.
"That said peraonal property was delivered to Walter 8. Lynch,
Hovember IS, 1S78, as II mt-ssenger between Port Royal and Augusta,
10 be brought by him to Augusta, Georgia, for transmission to Athens,
Georgia, and it ha' not liecn transmitted by him or delivered to the
SoQlhern Express Company, and that the same is in the possesaiou
aod under the contrnl of --aid Walter S. Lynch.
"Thil deponent, for iiud in behalf of said corporation, has reason
to ipprebend and doen apprehend that tbe said personal property will
be removed uway and will not be forthcoming to answer tbe judgment
tlut shall be made in tlu; case.
"That the said persfuiai properly is of the value of Iwenly-flve
UiDttland doilara, and thu package contained divers, lo-wit: twenty
notes of the Unilcii Stnli'S, commonly called currency notes, for Ihe
pftjrmeot of Ihe sum of nuc liundrcd dollars each; five hundred of the
148 SUPREME COURT OF GEORGIA.
The State tx rel. Lynch vs. Bridges. Jailer, et al.
same denomination of notes, each of the value of twenty dollars; one
thousant of the same denomination of notes, each of the value of ten
dollars; six hundred of the same denomination of notes, of the value
of five dollars each.
** Deponent further swears that in behalf of said corporation he
does verily and bona fide claim said personal property for said South-
ern Express Company, who have paid the value thereof to said George
W. Williams & Co.. and he desires bond and security may be required
of said Walter S. Lynch for the forthcoming of said property.
Hugh Dbmpsby."
Declaration was filed the same day in trover at common
law as follows:
" The petition of the Southern Express Company, a corporation of
the county and state aforesaid, showeth that Walter S. Lynch, of the
county aforesaid, has greatly endamaged your petitioner, for that
whereas, heretofore, to-wit: on the fifth day of November, in the
year of our Lord, one thousand eight hundred and seventy-eight, and
in the county aforesaid your petitioner was possessed as of its own
property, of a certain package done up in buff paper and having writ-
ten thereon * $35,000.00, Reeves, Nicholson & Co.. Athens, Ga..' the
same being sealed with wax, having the initials of G. W. W. & Co.
stamped thereon, measuring about ten inches in length, by about seven
and a half inches in width, and about six and half inches in depth,
and shipped by George W. Williams &Co. , of Charleston, South Caro-
lina, of great value, to-wit: of the value of twenty-five thousand dol-
lars, and being so thereof possessed as aforesaid, your petitioner after-
wards, to-wit: on the day and year and in the county aforesaid,
casually lost said package out of its possession, and the same after-
wards, to wit : on the same day and in the county aforesaid, came to
the possession of the said Walter S. Lynch by finding.
** Yet the said Walter 8. Lynch, although he well knew the said
package to be the property of your petitioner as aforesaid, has not
delivered the same to your petitioner although often requested to do
so, and afterwards, to-wit: on the day and year, and in the county
aforesaid, converted and disposed of said package to his own use.''
The declaration contained also a second count which dif-
fered only from the first in that it set forth a description of
the treasury notes which were in the package, and pro-
ceeded :
" Yet the said Walter 8. Lynch, although he well knew the said
package and contents aforesaid to be the property of your petitioner
as aforesaid, has not delivered the same to your petitioner, although
often requested so to do, and afterwards, to-wit : on the day and yea
SEPTEMBER TERM, 1879. 149
The State ccr rd. Lynch r«. Bridges, jailer, et al.
and in the county aforesaid, converted and disposed of said package
and contents to his own use, to the damage of your petitioner fifty
thousand dollars."
To this was annexed a copy of the original aflSdavit and
process.
Original was indorsed :
••Filed in office 18th Nov., 1870. 8. H. Urump, Clerk.
Sum sworn to $25,000.
Take bail for $50,000."
The original declaration and copy were placed in the
sheriff's hands, whose action is set forth in his return on
the original writ as follows :
" Served a copy of the within petition and process and copy of the
affidavit on the defendant, Walter S Lynch, arrested him at the same
time, and not being able to give bond and not producing the property,
I put him in jail this 18th day of November, 1878, in the custody of
Theodore C. Bridges, jailer.
" Charles H. Sibley, Sheriff R C."
The original papers were first lodged with the jailer but
withdrawn, and the following paper deposited with the jailer
when the originals were returned to court:
"The Southern Express Company, ) Trover and Bail,
vs. y April Term. 1879,
Walter S. Lynch. j Richmond Superior Court.
Sum sworn to, $25,000.00.
"The defendant having been this day served with a copy of the
petition, process and bail aflidavit in the above stated case, was arrested
by me, and on failure to enter into recognizance for the forthcoming of
the property sued for, and being unable to find that property myself,
or to seize and take possession thereof, I now. pursuant to the require
ments of the law, commit him to jail, to be kept in safe and close cus-
tody until the property sued for is produced, or until he shall enter into
bond with good security for the eventual condemnation money.
Charles H. Siblky,
** November 18th, 1878. Sheriff Richmond Co."
Mrs. Elizabeth M. Lynch, as wife of Walter S. Lynch,
petitioned for a writ of habeas corpus^ February 10, 1879,
upon the following grounds :
1. That the arrest and confinement is illegal, because the
afadavit for bail attached to the declaration was made by a
150 SUPREME COURT OF GEORGIA..
The State ex rd. Lynch V9. Bridges, jailer, et al.
person not authorized to make such affidavit for a corpora-
tion.
2. Because the affidavit for bail in said action was not
filed in the clerk's office of the court to which said petition
was returnable, to-wit : the superior court of said county,
and a copy thereof affixed to the original petition and the
copy thereof.
3. Because the copy of the original petition, affidavit and
process, was not served upon Walter S Lynch by the sheriff
or other lawful officer, but was served upon him (if such an
act can be called a service), by being handed to him by
Hugh Dempsey, who was neither the sheriff nor other law-
ful officer.
4. Because such action was not instituted in good faith
for the purpose and with the intention of recovering the
property described therein or tlie value thereof, but was
begun, and is continued by the plaintiff therein in fraud of
law, and for the purpose, by oppression and long confine-
ment in jail, and the bringing of your petitioner and her
children to want, or a worse fate, to extort money from the
friends or relatives of the defendant in payment of a claim
for the money lust by defendant or stolen from him while
in transit to the point of delivery.
5. Because said property was not "in the possession, cus-
tody or control of defendant" at the time of the demand
therefor as sworn to by said Hugh Dempsey, as "superin-
intendent and agent," said affidavit of said Dempsey being
false and without the slightest foundation in fact and truth.
6. Because an action of "trover and bail" will not lie
for the recovery of money under the facts of this case.
7. Because said action cannot be maintained, the injury
complained of amounting to a felony, as defined by the
Code of this state, and the said company having failed and
refused to prosecute said defendant, either simultaneously
or concurrently, or previously to the institution of said
action for the same, or to allege a good excuse for the fail-
ure to so prosecute.
SEPTEMBER TERM, 1879.
(. Linch w. BHd^es, jail
The jailer returned as the cause of eommitineTit the paper
lodged by the sheriff, and justified his confinement of re-
lator solely under the act of December 13, 1820.
He prays that the City Council of Augusta, sheriff, and
Southern Express Company be made parties, and submitted
to the eonrt solely for his protection in the premises, and
asked decision on the foHowing:
1. That this petition nor writ of habeas corpus has ever
been filed in the clerVs otHce of Richmond superior court,
and ie not valid until placed on the docket of that court.
2. That the writ shonid have been issued againut the
sheriff of Richmond county ^r the City Council of Augusta,
and not to him, as jailer.
3. That the judge of the superior court of the Augusta
circuit has no jurisdiction in vacation under a writ of
"h^as corpus" to determine the validity of civil proceflS
returnable to a regular term of a court of this circuit.
i. That the process under which Lynch is held in custody
is lawful, and that at April term, 187&, it being the appear-
ance term of Richmond superior court, which is a court of
competent jurisdiction, can only a motion be lawfully made
or entertained in respect to the validity of the process or
detention theionndor.
On the tiling of the riturn of the jailer, the court ordered
that the sheriff, Cliarli/s 11. Sibley, and the Southern Express
Company be luiuJc [nirticB.
The sheriff then answcivd, adopting the return of the jailer,
also that he did, on the Isih day of November, 1878, per-
eoDally serve the dctViidant, Walter S. Lynch, with a copy
of the petition and prowssand bail affidavit in the case,
and that his return upon the original papers to April term,
18T9, of Richmond 8upcriL.r court, is correct and true.
The Southern Express Company also adopted the answer
of the jailer.
The petitioner's attorney then filed a traverse as follows :
"And now comes ibepetilioner, Mrs, B. M. Lynch, by her attornejs,
%aA invene* the truih of tUe facts set forth to the foregoing noswer
SUPREME COUKT OF GEOKGIA.
Tbe St-ite ex re!, l^nch h. Biidgrt, Jallir, «! oJ.
of T. C. Bridges, jailer. aoA Ibe Soulhern Eipress Company, «nd
alleges the fuels aa set forth in the grounds of Iier peiiijon to be cor-
rect and true. Had also accepts as true Ihe answer of Charles H. tjiblefi
sheriff, and conlesU tlje sufficiency of Ihe causes set forth in the answer
of the said Bridges for the dcieoiioD of Ihe said W. S. Lynch, and
strikes the 3d and 3d grounds of Ihu peiilion for writ."
The deinatid eerved on Ljncb was as follow? :
• To Walter 8 Lynch:
Demand is hereby made upon you for the immediate delivery to the
Soulhero Express Com pan] of a certain package done up in buSpiiper,
having written Ihcrfon '$95.000 00, Reeves, Kicholson& Co., Athens,
Oa .' the same being sealed with waji having Ihe [nilials of O W. W. A
Co. sl»mpM Ihereou. measuring about ten inches in length, seven and
a linlE inches in width and about six ami a half icches in depth, and
delivered to you Novembers. 1878, as n messenger between Port Royal
and Augu!ita. Oa., to bring to Augusta. Qa., for said Soulhern Express
Company.
"That upon failure to comply immediately with this demand an
action will be brought against you for converting the same.
■■Sovemlier 18. IS18.
SoUTUEIUf ESPRKBSCOMFAHT."
By Hugh Dempsey, superintendent."
The bill of exceptione retjited tlie history of the case dar-
injr the trial, ae fallows: .... Upon the reqiieet
of said jailur and in accordance with the desire of said
parties, the Sonthern Express Company, plaintiff in the
action upon which said Walter S. Lynch was committed,
and Charles H. Sibley, sheriff of said county, by whom eaid
defendant was committed, were made parties. The request
of said jailer to have the City Council of Augusta also made
a party was refused.
The retnrn of said jailer was traversed in writing
and issue joined tliereon, and petitioner offered evidence
to disprove the statement made io the affidavit for bail,
"that the same (the personal property sned for) is in the
possession and nnder the control of the said Walter S.
Lynch," and to show that the same was lost or stolen from
the possession, custody or control of the said Walter S.
Lynch, while in the employ of the Southern Express Com-
pany, November 5th, 1878, evidence of which was in the'
SEPTEMBER TERM, 1879.
153
The State ex rel. Lynch w. Bridges, jailer, et cU.
possession of the maker of said aflBdavit, pVior to and at tlie
time of the making of said affidavit, and that said prop-
erty had not been in the possession, cnstody or control of
tln> said Walter S. Lynch since that time. Petitioner offered
also to prove that the faihire to deliver said personal prop-
erty to the plaintiff on demand, or surrender or point out
the same for seiznre by the sheriff, was due alone to the
inability of the said Walter S. Lynch to comply therewith
on account of the loss or theft as aforesaid. That he did
not enter into the recognizance provided for by law, solely
because that by reason of his poverty he was unable to give
such a bond.
All of which was repelled by the court, and the announce-
ment made that it would only receive evidence as to whether
or not the Southern Express Company, as plaintiff in said
action, had prosecuted the defendant under section 29/0 of
tiie Code, or alleged a good excuse for its failure t<» pros-
ecnte. The petitioner thereupon put in evidence the ad-
mij^sion of the plaintiff that it had not prosecuted the
difendant, the original declaration with affidavit attached,
and accepted in lieu of said original affidavit, and the de-
mand made by plaintiff upon the defendant prior to the
filing of said suit, to be found in the brief of the evidence.
The respondent Bridges and the Southern Express Com-
pany offered the commitment from the sheriff under which
the defendant was held after the withdrawal of the declar-
ation, etc.
The judge refused to discharge the prisoner, whereupon
H bill of exceptions was sued out by Elizabeth M. Lynch,
iind error assigned on the following grounds :
1. Because the court erred in repelling proof of the
falsity of the statenient in the aipdavit for bail by Hugh
Denipsey, to-wit: "that the same, (referring to the package
^onght to be recovered in said action) is in the possession and
under the control of the said Walter S. Lynch," and to show
that said package was lost or stolen from the possession, cus-
tody and control of the said Walter S. Lynch while in the
154 SUPREME COURT OF GEORGIA.
The State ex rel. Lynch r;«. Bridgfes, jailer, et ai.
employ of the Southern Express Company, November 5th,
1878.
2. Because the court erred in repelling evidence by peti-
tioner that the failure to deliver said personal property to
the plaintiff on demand, or to deliver the same to the
sheriff for disposition as provided by law, was due solely
to the fact that said property was not in his possession, cus-
tody qr control, having been lost or stolen out of his pos-
session, custody and control as aforesaid, and his failure to
enter into a recognizance for the forthcoming of said prop-
erty as provided by law, was due alone to the fact that from
his poverty he was unable to give such recognizance.
3. Because the court erred in deciding that section 2970
of the Code was limited to physical injuries, and did not
apply to torts to property, although such torts amounted to
a felony as defined by the Code of this state, an^ that
therefore, although the record in said case made out sl prima
facie case of larceny after trust, which was a felony as de-
fined by the Code of Georgia, it was not incumbent upon
the said Southern Express Company, as plaintiff in said
action, to prosecute for the same, or to allege a good excuse
for the failure to so prosecute, and that plaintiff could
maintain said civil action without having "either simul-
taneously or concurrently or previously" prosecuted for the
same, or alleging a good excuse for the failure so to pros-
cute.
4^. Because the court erred in remanding the said defend-
ant to jail under the law and facts of this case.
5. Because the court erred in deciding that upon a tra-
verse of a return to a writ of habeas corpus^, no evidence
was admissible except the record in the case in which de-
fendant was held in custody, and evidence to establish that
the plaintiff had or had not prosecuted for the tort under
section 2970 of the Code.
When this case was called a motion to dismiss the writ
of error was submitted upon the ground that the wife of
the prisoner was not, hereelf, entitled to a review of the
SEPTEMBER TERM, 1879. 155
The State «t rei. Lynch vs. Bridges, jailer, et at.
decision by bill of exceptions, the prisoner not complaining.
And because the acknowledo^ment of service was simply
si o^ned by " Frank II. Miller and J. S. & W. T. Davidson,
attorneys for respondents," not showing that all of the par-
ties respondent were represented in such acknowledgments
The record failed to disclose that any of such respondents
had been represented by other and different counsel in the
court below.
The motion was overruled, the court holding as stated in
the third and fourth head-notes.
H. Clat Fostku, for plaintiff in error.
Frank H. Miller ; J. S. & W. T. Davidson, for de-
fendants.
Blkckley, Justice.
1. There was an action of trover, and thccourt had jaris-
diction both of the person and the subject matter. There
was such an affidavit as the statute prescribes. The declar-
ation sets forth a cause of action ; there was regular process,
and due service. The property had not been seized be-
cause the officer could not find it, and the requisite bond
and security were not given by the defendant. These
facts made a case for imprisonment. Code, §3420. To go
beneath them and inquire into the truth of the matters
alleged in the declaration and affidavit, would be to engage
the habeas corpus court in a work of subsoiling which can
be fitly done only by the court in which the main action is
ppuding, and upon a regular trial in the due course of pro-
ceedings. Imprisonment until a trial can be had does not
depend upon whether the plaintiff has a good case for a
recovery, but upon whether he puts a good case upon
paper, and locates it in the proper forum. In what he
alleges there may not be one word of truth, but his alleging',
it in the manner prescribed and upon the sanctions which '
the law ordains, entitles him to have the property produced
10
156 SUPREME COURT OF GEORGIA.
Tritt vs. Roberto.
or the defendant imprisoned if the latter will not give bond
and security. What is needed to justify an imprisonment
is only due process of law, and it is obvious that there may
be the same legality of process in behalf of an unjust suitor
as of a just one. The time for discriminating between cases
of merit and those without merit is at the trial. Indeed,
the sole object of a trial is to fiiid out whether the com-
plaint is well or ill-founded. Where, imprisonment takes
place on mesne process, th6 range of inquiry upon habeas
corpus is simply, whether the plaintiff has brought a proper
suit in the proper court, and has taken all the steps in pro-
cedure which the law lays down as conditions precedent ;
these things appearing, the lawfulness of the custody fol-
lows necessarily. The investigation relates to what has
been done ; not to whether it ought to have been done.
2. It was urged in argument tliat the tort complained of
amounted to a felony in our law, and therefore that the
action of trover could not be maintained without an aver-
ment in the declaration that the wrong-doer had been prose-
cuted, etc. In the affidavit is some indication of a larceny
after trust, but the commission of this offense does not ap-
pear with full certainty, from either the affidavit or the
declaration, nor from both together.
3. 4. The motion to dismiss the writ of error was not
well taken on either of the grounds.
Judgment affirmed.
TRrrr vs. Robkets.
[Wabnxb, Chief Justice, being engaged in presiding over the senate organised ai* a
court of impeachment, did not sit in this case.]
1. It IB not the agreement of counsel but the certificate of the presid*
log judge which verifies the brief of evidence to enable this court
to review the case ; therefore the judge, even after counsel had
agreed upon a brief satisfactory to themselves, may correct it by
SEPTEMBER TERM, 1879. 157
Trittiw. Roberts.
interlioeations or otherwise so as to make it conform to his recol-
lection of the facts.
2. Possession of part of one lot embraced in the same deed with other
lots will not be extended by construction to the other lots, unless
the deed be on record, so as to work a title by prescription; and
constructive possession of the unoccupied lots will not begin to run
until the date of the record.
Practice in the Superior Court. Deeds. Title. Pre-
scription. Before Judge Lgstbb. Cobb Superior Court.
March Term, 1 879.
Reported in the opinion.
A. S. Clay ; W. T. & W. J. Winn, for plaintiff in error.
C. D. Phillips ; Gobbb & Lkstkr, for defendant.
Jackson, Justice.
Roberts brought an action of trespass quare clausum
fregit against Tritt, for taking and carrying off of lot eight
hundred and thirty, in the sixteenth district and second sec-
tion of Cobb county, certain rails thereon. The jury found
for the plaintiff, and the defendant made a motion for a
new trial; it was overruled, and thereupon he excepted.
1. One complaint made in the bill of exceptions is, that
the court erred in altering a brief of the evidence which
had been agreed upon by counsel. This court looks to the
presiding judge to certify the bill of exceptions, and not to
the counsel. Agreement of counsel without such certificate
would not avail to bring the case here in order to have it
reviewed. Code, §4252. Therefore the judge may correct
the brief of evidence before he decides the motion for a
new trial so as to make it conform to the facts proven be-
fore him, as he remembers them ; and this he may do even
after counsel have agreed upon the brief as perfectly satis-
factory to themselves. It is upon the judge, not upon
counsel, that the law imposes the duty to verify the facts
158 SUPREME COURT OF GEORGIA.
Tritt vs. Roberts.
set out in the bill of exceptions or appended to the motion
for a new trial.
2. The plaintiff attempted to show a prescriptive title,
and under the evidence, as corrected by the court below, the
verdict could be supported, though the testimony is very
conflicting on the question of actual possession of a part of
this lot by the plaintiff. But we cannot tell whether the
jury passed at all upon that issue, to-wit: continuous ad-
verse possession of lot 830 for seven yeai*8, for the reason
that the court charged the jury that if this lot, 830, was
embraced in the same deed with other lots, and if defend-
ant was in possession of either of the others, that possession
extended to the boundary described in the deed and would
embrace this lot too. The proof was that plaintiff did pos-
sess an adjoining lot, having a twenty acre field thereon
cleared and cultivated for years, and a deed was in evidence
covering number 830 and two other lots. But there is no
evidence in the record that the twenty acre field was within
either of the lots included in this deed, and therefore there
is no evidence to support this charge. Moreover, if by
inference the jury could have concluded that the twenty
acre cleared field was in one of the lots in the deed which
was put in evidence embracing number 830 and two others,
still the charge was erroneous, because that deed was not
recorded until March, 1879, pending the suit, and until it
was put on record the possession of part of one lot covered
by it would not by construction be extended over any other
lot covered by it, as was ruled in the case of JaneSy admin-
istrator^ vs. Patterson^ decided at the last term.
The principle is that the holder of a perfect title tQ a lot
of land and resting thereon must have somewhere to look
to ascertain if another is in possession thereof, and if time
is working a prescriptive right against him. If his adver-
sary has part of his lot lot actually in possession he can see
that and take warning; if there be a deed on record cover-
ing his lot and other lots, and his adversary has possession
of the other lots or either of them, he can see that posses-
SEPTEMBER TERM, 1879. 159
McEwen tw. Spriugfleld et cU.
sion, and looking at the recorded deed he can see that it
extendn over his lot too, and take warning ; but if there be
no possession of part of his lot, nor recoi'd of a deed which
would show hiiu that the possession of another lot was
covering his also, and making time against him, he has
no warning, and does not sleep over anj of his rights, and
the possession could not in any sense be adverse to him.
Therefore the charge was error in the light of the facts
in this record, and as it may have controlled the verdict, a
new trial should have been granted ; and on its refusal on
this ground the judgment is reversed, the defendant having
shown perfect title to the land from the state down, and
the plaintiflTs prescriptive claim being the only impediment
to a verdict for him.
Judgment reversed.
MoEwBN vs, Springfield et al.
1. In a suit by a widow for damages for the homicide of her husband,
the defendants are competent witnesses in their own behalf.
2. It having been sought to impeach a witness both by disproving facts
testified to by him, and also by proof of contradictory statements,
and to sustain him by evidence of good character, it was errof- to
limit the effect of such sustaining evidence by charging that *' if a
fact or facts testified to by a witness be disproved to the satisfaction
of the jury, then evidence of general good character should not be
treated as re-establishing such disproved facts."
3. If two or more persons conspire together to do an unlawful act of
violence on the body of another, and they embark in the execution
of such purpose, the law would not protect each against the conse-
quences of the other's not strictly observing the bargain ; each must
contemplate that before joining with his fellow to break the law,
and each becomes responsible for the worst act done and the great-
est damage caused by any of his fellows, if done in pursuance of
the unlawful purpose.
Witness. Evidence. Before Judge MoCutohen. Whit-
field Superior Court. April Term, 1879.
160 SUPREME COURT OF GEORGIA.
MeEwen i», SprtngMd tt al.
To the report conUined in the decieion it is only neces-
sary to add the following : The eviderice for plaintiff tended
to show the following facta : There was bad feeling between
HcEwen, the deceased, and the Springfields ; the imme-
diate quarrel arose in Springfield's grocery at night abont
Ituytng some bitters; both of the Spnngfields advanced
towards McEwen, and he went out of the door. Robert
Springfield was held by a by-stander, the other defendants,
except Horn, following McEwen ; Horn came up with a
knife, and told the by-etander to let Robert go, and when
this was done, they too followed McEwen. In a few min-
utes he was killed, being both shot and cut with a knife.
Horn was examined for the plaintiff by interrogatories ; he
etated that he heard the pistol shot and ran up to where the
party was; that Hugh Springfield got up from a stooping
poeition over the body and appeared to close a knife;
that he heard them say that Bob Springfield had shot
McEwen; that Hugh told Bob to go to his house and get
his horse and leave, as he had killed McEwen, and he him-
Belf went and closed up his grocery.
The evidence for the defendants was to the effect that
McEwen had been drinking, and that all of them were
eeeking to get him homu and to prevent a difficulty, except
Robert Springfield and Horn, the first of whom did the
shooting and the latter the cutting.
Wabkeb, Chief Justice.
The plaintiff sued the defendants, Robert Springfield,
Hngh Springfield, T. J. Smith, jr., Thomas S. Horn, and
W. C. Quinn, to recover damages for the killing of her
liueband. On the trial of the case, the jury, under the
char^ of the court, found a verdict in favor of the plain-
tiff for $i,226.00 against Robert Springfield, and found in
favor of the other defendants, except Horn, who had not
been served. The plaintiff made a motion for a new trial
on the following gronnds ; '
SEPTEMBER TERM, 1879. 161
McEweD vg. Springfield et al.
1. Becanse the verdict is contrary to law, contrary to the
evidence, ptrougly and decidedly against the weight of the
evidence, and against the principles of equity and justice.
2. Becanse the court erred in ruling, over plaintifPs
objection, that the defendants, Hugli Springfield, T. J.
Smith, jr., and W. C. Qninn, might testify as to all that
Mrs. McEwen, the plaintiff, had testified about, and per-
mitted them to testify fully as to their version of the homi-
cide as set out in the brief of the evidence — plaintiff
objecting to all of said testimony.
3. Because the court, after charging the jury as to the
right of a widow to recover for the homicide of her hus-
band, and instructing, them as to the measure of damages —
to which no objection is made — charged as follows, viz : " If
either or any of the defendants unlawfully and feloniously
slew the deceased, then any or such of them as did the act,
or participated in it, would be liable in damages according
to the measure I have given you. Such of them, if any^
as neither did the act, nor participated in and promoted it,
would not be liable. And again, if such killing occurred
ID pursuance of such conspiracy, then all, or any such as
had joined in or become parties to that conspiracy, would
be liable in damages, according to the measure I have given
yon ; but such of the defendants as did not join or become
parties to such conspiracy would not be liable for conse-
quences of the same. Conspiracy here referred to need
not be such as expressly contemplated a killing of the de-
ceased. If there was a conspiracy, and the purpose of it any
unlawful attack on the person of McEwen of any kind, even
if only an assault and battery, and from that all the way up
to murder, this would be sufficient. The principle is this:
If two or more persons conspire together to do an unlawful
act of violence on the body of another, and they embark
in the execution of such purpose, the law would not protect
each against the consequences of the other's not strictly
observing the bargain: each must look out for that before
joining with his fellow to break the law, and each becomes
162 SUPREME COURT OF GEORGIA.
MeEwenM. Sprioglleld «f a/.
responsible for the worst act done, and for the greatest
damage caused by any of his fellows, if done in pursuance
of the unlawful purpose. The doctrine of conspiracy, as
before stated, would only apply to those who conspired,
and if there was no conspiracy, then the principle would
not apply at all."
This is the entire charge given in relation to the several
defendants being responsible for the acts of any of the
others. This charge, as a whole, plaintiff pays was errone-
ous, and a new trial should for this error be granted.
4. Because the court failed to give in charge as the law
applicable to the facts of this case though he was not
specially requested so to do, either orally or in writing,
but plaintifi^s counsel in his argument before the court
and jury had insisted that such was the law, viz : That
the killing of the plain tiff^s husband was the joint ac-
tion of two or more of the defendants, each would be
liable who may have concurred in the act of the one killing.
If the evidence shows that defendants, or any of them,
acted in concert,- either directly or indirectly in the com-
mission of the trespass on McEwen, or contributed to
such act, then all who so acted in concert, or contributed
directly or indirectly thereto, would be liable in damages for
the act done.
5. Because the court, after charging in substance sections
8872 to 3875 of the Code, added : " If a witness be im-
peached by both methods, that is by disproving the facts
testified by him, and by proof of contradictory statements,
and he be supported by other witnesses who testify to his
general good character and that he is worthy to be believed,
then the jury should understand such evidence as support-
ing him to be judged cf by the jury, in respect to the contra-
dictory statements, but that it is inapplicable as far as relates
to the evidence by which a fact or facts he may testify to is
disproved, if any. Or in other words, a witness impeached
by proof of contradictory statements made by him, should
be treated as having his credit restored by satisfactory proof
k
SEPTEMBER TERM, 18T9.
McEwcD ». SprlngReld *( ai.
of general good character. Bnt if a fact or facte testified
to by a witneea he dipproved to thesatiafaetion of the jury,
tlien evidence of general good character should not be
treated as re-eetablishing such disproved facte. But Ihe
qncstion as to whether there be any fact or fattta disproved,
and if eo, what facte, ie, like other eiuiilar matters, for the
jnry to determine, and yon are to judge of the extent and
the consequences of such discrepancy, if any, or of the ex-
planation of tlie eanie, if any," This charge, as a whole,
plaintiff insists was oironcoue, and was calculated to mislend
the jury, and snch ae should entitle her to a new trial.
6. Becanee the coart erred in giving in charge this written
request of defendants' coiiitsel, viz: In the absence of
proof of what the Te.xas law ie, the presumption ie that the
common law prevailu in Texas, ahd, by that law, there is
no auliiurity (■(.)tii['i;liiiii: ii witness to answer interrogatories
coming from another state. Horn conld not have been
compelled to answer thesf inlefTOgatoriea.
7. Because when plaimitFa counsel, In his argument be-
fore the jnry, was calling attention to the testimony of Dr.
'''ochran, taken by interrogatories, and returned into court
3d October, 1877, (being the second day of the term) in
which testimony the doetur expressed the opinion tliat the
eat on McEwen's neck was made immediately hefore or
after the -hot, and probably afterwards, because there was
?erj little blood about (hie cut, and said counsel was argn-
iiig that this testimony corroborated Horn, and on this
account the presentment against Horn, made at October
term, l!^77, was a movement on part of defendants to
sbift the blame of the cutting on Horn, who was absent,
tb« court, at the instance of defendants' counsel, arrested
plaintiff's argument and refnaed to permit him to argue
anything on this account unfavorable to Hugh Springfield,
as it did not appear by the evidence that he had anything
to do with the presentment, but ruled that said counsel
might argue this question so far as it might affect the
defendants Sruith and Quinn, because their names appeared
164 SUPREME COURT OF GEORGIA.
McBwen vt. Spriogfleld et at.
indorsed &8 witnesses on the presentment, bnt Hugh Spring-
field's did not. This restriction by the conrt of the range
of argument of plaintiff's counsel, plaintiff insists was error,
the m^re especially as plaintiff's testimony showed circum-
stances tending pretty clearly to prove that Hugh made
the cut on McEwen's neck ; and this Wiis a point stoutly
contested on both sides. Plaintiff insists tiiat this conduct
of the court was well calculated to impress the jury with
the idea that the court thought Hugh not guilty of the
cutting.
As to the complaint made in the seventh ground the
judge says : There was nothing new in the testimony of
Dr. Cochran relative to the absence of blood at the knife
wound. The fact was known at the inquest, and to all the
parties. When Mr. Shumate raised the point, the court looked
at the Horn indictment, and not finding the name of Hugh
Springfield marked on it either as witness or prosecutor,
asked Judge Walker to call attention to any evidence either
showing or tending to show that said Hugh instigated the
Horn prosecution. He replied, there was not any. The
court then remarked that nothing could be claimed unless
there was some evidence to support it. The court made
no intimation that Hugh did not do the cutting.
The motion for a new trial was overruled by the court,
and the plaintiff excepted.
1. There was no error in allowing the witnesses Spring-
field, Smith, and Quinn, to testify in the case, as alleged in
the second ground of the motion for a new triaL Mrs. Mc-
Ewen, who was the plaintijf and solely interested as such, had
testified in the case and had given her version of the hom-
icide of her husband, whose estate was in no way interested
in the issue or cause of action on trial. The plaintiff wafi
in life to confront the witnesses who were called to testify
against her, the only party plaintiff interested in the cause
of action or the issue on trial.
2. In our judgment, the charge of the court, as alleged in
the fifth ground of the motion, was error, especially the
SEPTEMBER TERM, 1879. 165
Cox V9. WeemB.
following part of it: "But if a fact or facts testified to by
a witness be disproved to the satisfaction of the jnry, then
evidence of general good character should not be treated
as re-establishing such disproved facts/' The testimony of
Horn, a witness for the plaintiff, was material as to the
participation of Hugh Springfield in the homicide of plain-
tiflPs husband, and it was sought to impeach him on the
ground that he had made contradictory statements in regard
to it. This charge of the court, in view of the evidence
in the record, was to nullify what it had previously charged
as to the restoration of the credibility of the witness by
proof of his general good character. The question raado
by the evidence in the record, was whether Horn had been
impeached by having made contradictory statements in
view of the testimony as to his general good character, and
the effect of the charge was to tell the jury that proof of
his general good character should not be treated as re
establishing his credibility. A witness impeached by proof
of contradictory statements may be sustained by proof of
general good character, the effect of the evidence to be deter-
mined by the jury. Code, §3875,
3. We find no material error in the other grounds con-
tained in the motion, but reverse the judgment for error in
the fifth ground.
. Let the judgment of the court below be reversed.
Cox V8. Wekms.
1. When the complaint in the motion for a new trial is that "the
court erred in allowing counsel for defendant, over the objection of
complainant's counsel, to read the deposition of Mrs. Eliza Weems,
wife of S. R. Weems, in detailing a conversation between herself
and her husband, not had in presence of complainant, in which ti.
R. Weems claimed the land in controversy as his own property and
not the property of complainant, the objection being based on the
166 SUPREME COURT OF GEORGIA.
Cox tw. Weems.
ground that complainant was not present, and on the ground that
the conversation was a confidential communication between hus-
band and wife," and when the evidence of the witness, as contained
in the record, is not confined to a single conversation but may be
construed as referring to several, and consists of answers to five
direct and four cross interrogatories, and it cannot be determined
with certainty what particular language in the answers, or any
of them, was objected to. the supreme court will not undertake
to locats the motion for a new trial on this or that part of the
testimony. When the evidence objected to is contained in answers
to interrogatories, the obnoxious answer or answers ought to be
designated in the motion for a new trial by number, or by quota
tion, or in some other way, so as to leave no uncertainty in respect
to the subject-matter and range of the objection.
S. The motion for a new trial is a part of the pleadings, and has no
business in the bill of exceptions ; the contents of the motion as cer-
tified by the clerk in the transcript is, therefore, the appropriate
evidence of what the motion contains, and where the bill of excep-
tions states the contents differently from the transcript the latter
will govern. It follows that where the motion for a new trial as
set out in the transcript represents that the court refused to charge
that the marital rights of the complainant*s husband would attach,
such refusal to charge will be treated here as the matter complained
of in the original motion, though the copy of the motion as con-
tained in the bill of exceptions states the complaint to be the giving
of the charge and not a refusal to give it.
3. The testator made his will in 1854, and died in 1855. The terms of
the will, so far as they relate to the present controversy, were ss
follows: **I will and bequeath to my son, Samuel R. Weems, all
my landed estate (describing it), provided, nevertheless, I reserve to
my daughter, Peggy Ann Cox, a lease to continue during her life-
time or as long as she may see proper to live on it, seventy- five acres
of land, more or less, of the above described tract (defining the
boundaries of the reservation), and should my daughter cease to oc-
cupy said land, either from death or removal or otherwise, my said
son, Samuel R. Weems, to possess and hold said leased tract of land
as he does the balance of said land, to and for the benefit and be-
hoof of himself and his heirs forever in fee simple. * ♦ ♦ Iwill
and bequeath to my son, Samuel R. Weems,in trust for the use of my
daughter, Peggy Ann i'ox, during her natur il lifetime, besides the
lease in the land before mentioned, four negroes (describing iheiu)
together with their increase, and at the death of my said daughter
said negroes, together with their increase, to go to my grandson
Robert S. Cox, to him and his heirs forever. Also, one other negro
(naming her) with her increase, in the same way ; and at the death
of my said daughter this girl, with her increase, to be divided equally
SEPTEMBER TERM, 1879.
bclwucn tbe cbildren of my said dnu^hler, to-wit, Robert E. Cox
uid Mavy E. Taylor. Also, one equal part nitb my other children
i>f money ariaiDgout of my estale not disposed of in or by legoiiies
by Ibis my last will and testament; siiiil money, sliould It not be
mnde use orfur the use and benefit of my snid daughter during her
lifetime, at her death lo be equally divided between her two chil-
dren aforesaid."
Held, tlrst, that the will is for construction by tbe court, not tbe jury,
there being no ambiguity:
ffM, second, that tbe trust aitaclied upon tbe so-called lease of the
land, as well as upon I lie personalty :
Held, third, that fts the land wiis intended lo furnish Mrs. Cox person-
ally trith a home, she took a separate estate in it, unaffetted by the
marital rights of her husband:
Htld, fourth, that it whs competent for tbe trustee, he alone being in-
terested in tlie remainder, to waive the condition of her occupying
the land, and that aucb waiver, if mode by him and acted on liy her,
would present non -occupation from working's termination of her
estate at any time during her life.
Practice id the Supreme Conrt. New Trial. Practice
in the Supei^or Court. Interrogatories, Wiik. Trust.
Hnsbaod atid wife. Estates. Before Judge Hillybr.
Ilenrj- Siiperiof Court. April Term, 1879.
In September, 1874, Mrs. Cox filed her bill against
WeeiiiB to recover lliu possession of the seventy-five acres
uf land tlie use of wJiicli for life was devised to her by her
Aitlier. Samuel Wceiiis, as stated iti the tiiird head-note, and
mesne profits or rent for the time it had been poeseseed by
defendant, tite graiu'soii of the testator, and his father.
The great point of couteBt was as to whether the complain-
ant bad ever taken possession of the property at all under
the will, and if she Uuil, whether she had not lost her right
thereto by removal to Mississippi. She alleged that she at
one time occupied the land and moved to her father's house
at hie request, and lived with him until he died ; that then,
at the suggestion of Samuel B. Weema, the fatlier of de-
fendant, under whom ho held, and tbe remainderman under
the will, she moved to Missiseippi, he agreeing to pay her
rent tor the property during her non-residence, to manage
SUPREME COURT OF GEORGIA.
aud control tlie Fame lor her, and thereafter paying her a
portion Qf such rent. On the otiier hand, defendant alleged
that ?aid Siimnel R. Wecine put coniplainatit npon dietinct
notice of what would be the efEect of lier removal, etc.,
denied emphatically that Eaid Samuel R. had ever paid her
any rent, and claimed the land as hie as heir-at-law of his
father.
The jury fonnd for defendant.
The complainant moved for a new trial upon the follow-
ing, among other groiinda :
1. Reported fully in the tirat head note.
'2. BecaHHJ the court erred in charging the jury that tliey
rauet determini) whether S, R. Weeina was trustee of com-
plainant from the will, the circamstanees and teetiiriony in
that connection, instead of determining liiinsclf the proper
conetructiou of the will, and whether or not it made S. R.
Weema trustee of eomplainant as to the land.
3. Reported fully in the second head-note.
•I. Because the court erred in charging that if the. jury
believed from the testimony that S. R, Weems claimed the
land as having been forfeited to him under the provifiions
of the will, and held it for seven years adversely, claiming
it as his own, before the commencement of this suit, then
complainant could not recover.
As to thi^ ground thc^pmsiding judge says that he added
a more elaborate explanation of what would constitute
advei-EO possession, and the further condition that complaiu-
ant must have had notice of the adverse holding before the
seven yeai'S would begin to ran against her.
5. Because the verdict was contrary to the following
charge: "If you believe that complainant removed to
Mississippi with an understanding with 8. R. Weems that
he would hold and manage the land for her during her
absence, then she would be entitled to recover, because the
provisions of tJie will do not require an actual peraoual oc-
cupancy, hut she may hold and occupy by another bo as to
event a loil'eiture."
SEPTEMBER TERM, 1ST9.
6. Because tile verdict win, contrary to tlie cliaige of tlie
ooort, law and evidence.
The motion waa overruled, and complainant excepted.
BoY.Trorr & Dibmukk ; Beck & Berks ; II. C. Pkepj.kb,
for plaiiititf in error.
Stewart & Hall, for defendant.
Blecklby, Jnstice
1. The motion for a now trial U too looje in respect to
the evidence o; Mrs. Weems. There were >cvcral conver-
sations, and the answers of the witness extend to five direct
and four cross inlerrogatories. We caiirjot hmte the
motion on this or that part of the testimonv. The obnox-
ious answers onglit to have been pointed out liy nnmlior or
by qnolation, or in some other way so as to leave no uncer-
tainty as to tlic suojcct-mitterand range of the objection.
2. The motion for a new trial is a part of tlie pie idings
■ 7 Co., HI ; .^o lb.. iU i .57 /J., 151. It ,U„ not bolonn
to the bill of exceptions and has no business to appear in it.
What is properly record is to be evidenced by the transcript
dnlj corlilied, and as tlio clerk sets forth the motion in the
tnnecripl bo it will be taken in the supremo court, and a
difleront versi'.n (jivcn of it in the bill of ex-cpiions will be
disreuarded. MCo., C:JO; 5H/i., 439; 59/S., 840; 67
/ft., 15*. In this case if we take the transcript we are as-
sured that the court refused to charge the jury that the
marital rights would attucli, and though wh it purports to be
« copy of the motion for » new trUl emboilied in the bill
of wtceptions represents tlie matter differenllv. we treat the
charge aa refused, and so treating it, there was no error on
that point.
8. We think the will free from arabigniiy, and that its
tonMnictioa was alone for the court. The i n.it attached
upon the «,-c.lled lease of the land, as well as upon the
perrooaltj. The purpose and intention were to furnish
170 SUPREME COURT OF GEORGIA,
Scales V9. Sbackleford.
Mrs. Cox personally with a home, and that being so, she
took a separate estate in the home, unaffected by the mari-
tal rights of Cox, lier husband. Inasmuch as the trustee,
and lie alone, was interested in the remainder, he could cer'
tainly waive the condition of her occupying the land. It is
clear, too, that if such a waiver was made by him and acted
on by her, it would prevent non occupation from working
a termination of her estate at any time during her life.
The case ought to be tried over on the views of the law
which we have announced. The facts are for the jury ; and
on them we express no opinion.
Judgment reversed.
Scales vs. Suackleford.
[VVarnir, Cblcf Jnetlce, being engaged in presiding over tbe senate organised as a
court of impeachment, did not ait in this case.]
1. The verdict is supported by enough evidence if no rule of law was
violated.
2 Where plaintiff was interrogated on the stand by defendant touch-
ing certain admissions made in the presence of certain persons and
at a certain time, and did not set up that what he said was in refer-
ence and with a view to a compromise of the case, but gave his
version of the conversation, the defendant should be allowed to give
his version of the same transaction by himself or the witnesses pres-
ent, and such version of plaintiff's admissions should not be ruled
out because made in reference to compromise.
New trial. Evidence. Befoi*e Jud^e Erwin. Gwinnett
Superior Court. March Term, 1879.
To the report contained in the opinion, it is only neces-
sary to add tlie following :
Plaintiff, on cross-examination, testified as follows in re-
gard to admissions: '^ Defendant came to see witness about
the safe afterwards ; it was about sixty days after the eale ;
SEPTEMBER TERM, 1879.
T. W. Sexton, John Arnold and Joiin Flowers were there.
Witness did not admit in the presence of the parties in bis
store at the time Scalee came to see him that he Btated to
defendant there were two keys to the outeide door of the
eain. WiliiesB did Dot then admit that he agreed at time
of sale to insore defendant a duplicate key to the door of
the safe. At that interview witness did not go off op
stairs to hnnt the key."
In the testimony of Arnold was the following state-
ments: "The conversation was, Scales wanted Shackleford
to fnniish another key, that the large one was missing.
PlaintiSF said there were two shelves belonging to the
cafe; that he had taken them out and had them in his
store; that it would make a difference of fifteen dollars
in the value of the safe. Plaintiff did admit that there
was one key missing, and the shelves were also. Con-
vereatiun took place in an attempt to compromise this case.
The parties were trying to settle the matter amicably.
Scales was insiHting on a reduction and compromise." The
conrt rated onl tiie admiBsions aa being made with a view
to a compromise, and this is complained of as error.
T. M. pKEPLKs ; H. C. PEKrLKs, for plaintiff in error.
Ko appeal ance for defendant.
Jaoksoh, Jnstice.
This w.iti a 8nit in the justice cuurt for the value of asafe
»ld by Shackk'fonl to Scales. The plea was that it did not
come up to contract in that two keys were not furnished as
agreed, and shelves were wanting.
1. On that iiiK'stiun the evidence was conflicting, and as
Ikure is enough in thi^ record, we should not interfere with
the ref nsal of thu court to grant a new trial, because such
is oiir unifonti riilt- in cases of conflict of evidence. Let
the jury and the prt'siding jndge who saw the witneesea
and heard the tc^tljituiiy aa it fell fresh from the lipa of the
partiea on examination settle such iesaee.
173 SUPREME COURT OF GEORGIA.
Scales w. Shackleford.
2. Bat the plaintiff in error, who was the defendant
below, raises another and a legal question. He insists that
material legal evidence for him was excluded bj the ruling
of the court. This evidence was to the effect that the
plaintiff admitted in the presence of three men that he
was to furnish two keys and certain shelves which were
not furnished. The court rejected the evidence because
the admissions were made ^^with a view to a oomprorrm^T
Code, §3789. We do not see sufficient evidence in the
record that they were made with a view to a compromise.
They seem rather to be independent statements of truth.
If the latter, though made while the parties were trying to
settle, they would seem to be admissible. 6 Ga,^ 213; 13
7 ft., 406.
All that the witness says about the compromise is this:
'^ Conversation took place in an attempt to compromise the
case." And the party himself, when asked if he did not
make the statement, did not object to the question on the
ground of compromise or anything of the sort. This was
asked with the view of contradicting and impeaching him,
and that was his time to object to answer about any admis-
sions then made, if so made.
When the admission was made it was not made as a con-
cession to bring about a settlement, and was not claimed by
the party on the trial so to have been made ; nor was there any
intimation at the time that it was for the sake of having a
peaceable settlement of the case, or as our Code declares,
" with a view to a compromise." The plaintiff says him-
self, that " defendant came to see witness about it ; it was
about sixty days after the sale ; T. W. Sexton, John Arnold
and John Flowers were there," but he says nothing about
a compromise, and does not object to answering, but denies
that he made the admissions. Under these facts we think
the evidence admissible to attack the plaintiff's evidence, as
well as because they were independent admissions, if made
at all, and not made to advance or further a settlement.
One admission, if true, was quit.e material, and that was to
SEPTEMBER TERM, 1879.
Rice in. Tbs Oeorgis Niiloiul Bi
the effect that the eafe waa not worth hy fifteen dollars
what it would have been worth if complete with both keys,
one key being in otlier bands, and tlierefore tlie property
nnsafe as a eafe.
On this ground, the rejection of these admissions, we
reverse the judgment, putting our raling on the ground
that they seem not to have been made with a view to a
comproinise, and that the plaintiff, when interrogated about
them, did not pretend that the conversation was about any
compromise, but flatly denied the admisBions.
Whether, therefore, our rule bo broader than the common
law rule or not, as said in 48 Ga., 6i7, we think the facts
here make a case where the party plaintifE himself gave to
the jury his version of the conversation, and defendant was
entitled to do eo too, and to strengthen it by otlier witnesses.
Judgment reversed.
RiiiK vs. Tut: Gboboia National Bank.
AUanU Clrcull. won d<.'i'>KD>i»d b; the govei
1. Where the record contuiTiB no judgment on demurrer, tliia court will
■SBanie tbat tbere was oo ansh judgment.
It The declaration in lliis ease h not so defective as tbat a verdict
UicreoQ would l« nei.'cf.'isuril]' illegal. Its defects are amendable and
nould be cured liy verdict.
3. Where a banb held deiuandB, xeciired by collaterals, against its cua-
Uimvr for loans mid luivnnccs, part of which denmnda bad been
liiiuldnted \iy milo, and Ihore had been a course of dealing between
III* parties. tmbrHcing theao advances, and also deposits made with
Uie bank from lime to time by the customer, and where tbere wa«
evidence tending to show an accounting between the parlies, and
an accord and sellii^ment. in which the colluteral securilies were
divided between Ibeti). tlic amount of colInterHl» fulling to the bank
credited on Ibu gross ^iiin uf its demands, a new note taken for the
balance, and [be old uolea all canceled and surrendered and entered
paid ou tbe dlncouat book of the banki
174 SUPREME COURT OF GEORGIA.
Rice tm. The Qeort^s National Bank.
Eeldf a. That this transaction on its face would operate as a payment
and cancelation of the demands held by the bank against the cus-
tomer except as to said balance for which the new note was taken.
b. That if the bank allege the contrary the burden would be on the
bank to prove it.
e. That if, in such case, the court so charge the jury as in terms or
by reasonable implication to impose the burden of proof touchini^
such point on the customer, a new trial should be granted.
d. Even if the burden of proof were on the debtor, a charge which
submits to the jury, whether *'the circumstances as demonstrated to
them by the evidence is of such a nature as to raise the implication
—the necessary implication that it was taken in payment,** puts the
case too strongly, and demands more than the law would require to
overcome such burden of proof — mere preponderance of evidence
would be sufficient.
Practice in the Supreme Court. PleadingR. Bank. Con-
tracts. Onus prohandi. Charge of Court. Before Judge
Clark. City Court of Atlanta. June Term, 1878.
Reported in the opinion.
John L. Hopkins, for plaintiff in error.
N. J. Hammond, by brief, for defendant.
HiLLYEK, Judge.
The declaration made substantially the following case :
That the defendant, Rice, was indebted to the plaintiff, the
Georgia National Bank, in the sum of $11,429.25, besidea
interest, for certain advances which before that time the
bank had made to Rice, and that those advances were se-
cured by certain collaterals, consisting of executive war-
rants and certified accounts against the treasury of the state
for public printing, amounting to the sum of $L7,295 ; that
the bank entrusted those collaterals to Rice for the purpose
of collection ; that he was to obtain from the legislature an
appropriation, and was to apply the proceeds, when col-
lected, 80 far as necessary, to the payment of the debt owing
by him to the bank ; and that the legislature, instead of
SEPTEMBER TERM, 1879. 175
Rice vn. The Georgia National Bank.
appropriating the whole ainoant, $17,295, as claimed, appro-
priated only the 8um of $12,772.15 ; that Rice, instead of
paying over the amoant of his debt to the bank in full, had
paid in part only, leaving a large balance, amounting to five
or six thousand dollars, with interest, still due the bank,
and refused to pay or account for the same on demand.
On the trial, it appeared in evidence that the defendant,
Rice, did originally owe the bank the amount claimed,
mainly for advances made from time to time by the bank
to S. W. Grubb, in his capacity of agent for Rice as propri-
etor of the New Era newspaper in doing the public print-
intr, amounting to $12,000.00, or near that sum, and that as
collateral security for this indebtedness, the bank held the
above named claims against the state for public printing.
A minor portion of these claims were in the form of cer-
tified accounts, the remainder in executive warrants, issued
by Governor Bullock, but which treasurer Angier had re-
fused to pay ; that some time prior to the application to the
le<^islature for the act of appropriation, there had been an
accounting between Grubb, as agent, and Jones,cashier of the
bank ; that at the time of this accounting a part— much the
greater part — of Rice's debt to the bank existed in the form
of promissory notes, signed by Grubb as agent ; and that in
tliis accounting, these notes were all delivered up by the
bank to Grubb as agent for Rice, and canceled, and marked
paid on the discount books of the bank. That the collat-
erals were all divided out between the parties, and that
deducting the amount of collaterals falling to the bank in
this division, with other items not necessary to be specified,
Grubb, as agent, gave a new note for the balance. The
defendant contended that at the time the legislature met,
when it became necessary to app'.y for the appropriation,
the mattter of demands formally held by the Bank againet
him had all been settled in the above named accounting, and
that the claims against the state for printing which fell to
him in the division of collaterals passed to and were held
by him in his own right, with no lien thereon in favor of
176 SUPREME COURT OF GEORGIA.
Itlce V9. The Q«orgU Natiooal Bank.
the bank, or obligation on his part to account for any part
of the proceeds, and that the remainder of the collaterals
held by the bank in like manner belonged to it in its own
right; that some time after the above named division occured,
those collaterals belonging to the bank had been handed
back to him for convenience merely, and that they might
be consolidated and passed upon by the legislature all in
one appropriation, and that he was to make collection of
the whole, and then to divide the proceeds between the two,
and that when collection was made, not of the full amount
claimed, viz : $17,295.00, but of the whole lesser amount
actually appropriated, viz: $12,722,15, he had paid over to
the bank its full pro rata share of the same.
There was no conflict in the evidence as to the original
amount of the bank^s demand against Kice, or as to the fact
that the accounting had taken place ; that the division of
collaterals had been made, and that so much of the claim
as had existed in the form of Grubb's notes as agent, had
been delivered up, and canceled, and entered paid on the
books of the bank, and that upon deducting the amount of
collaterals falling to the bank in the division, with other
items above named, from the gross amount of the bank's
claim against Rice, Grnbb, as Gice^s agent, had given a new
note for the balance.
But there was a conflict in the evidence as to whether
this transaction was intended to operate as a payment and
cancellation pro tanto of the bank's claim against Rice, or
whether the whole demand was left open.
The testimony in favor of the defendant appears to pre-
ponderate, both in distinctness of recollection and statement,
the number of witnesses and circumstances, in favor of the
theory of payment and satisfaction. But the evidence of
Jones, the cashier, was the other way. There was a verdict
in favor of the plaintiff, and the defendant moved for a new
trial on various grounds, which motion was overruled.
1. One of the grounds was that the court erred in over-
ruling a demurrer by the defendant to the plaintiff's dec-
SEPTEMBER TERM, 1879. 177
Rice vs. The Georgia National Bank.
laration ; and the bill of exceptions recites that there was
snch deranrrcr, and that the court overruled it, but on look-
ing to the transcript of the record, we find in it no judg-
ment on demurrer, and we are of the opinion that the judg-
ment on demurrer is one of those things which must appear
in the record. There are many occurrences of a trial which
may be sufficiently authenticated by a recital in the bill of
exceptions, but a judgment on demurrer is not one of them.
If such judgment does not appear in the record, this court
will assume that there was no judgment on demurrer, and
no assignment of error can be based thereon.
2. It is insisted in the argument that the declaration was so
far defective as that no legal verdict could, in any event,
be rendered thereon, and that the same ground, that is, insuf
ficiency of the declaration, was still in reach of the court,
under the assignment of error contained in the bill of
exceptions, that the verdict was illegal ; but we think that
whilst the declaration contains some unnecessary averments,
and is more or less involved in its language, still, there is
the substance, the frame-work of a legal cause of action set
out in it as stated in the beginning of this opinion. If
more of precision be desirable, it can be supplied by amend-
ment, and any defect that is amendable would be cured by
verdict.
3. 4. The case turned mainly, as it appears to us, on
the question of whether when the accounting and alleged
settlement took place between Grubb, as agent of Rice,
and Jones, the cashier, and the division of collaterals occur-
red, and the cancellation of the notes took place as above
stated, some months prior to the meeting of the legislature,
this was intended to operate as a payment of so much of
Rice's debt to the bank as was not embraced in the new
note given ; or whether it was merely a surrender by the
bank of a part of the collaterals, with the relation of debtor
and creditor between Rice and the bank, for the gross
amount of his debt, remaining as before. The court, in
charging the jury^ seems to have gone on the idea that
;'r* 1
178 SUPREME OOUKT OF GEORGIA.
WllliiiiH n. ThB Orlffln BwiUng Compaar.
under the state of facts set forth, the barden of proof was
on the defendant to show that it was a payment; bat we
think that ae matter of law, the transaction, on its face, con-
stituted a payment, and if the bank allet^d the contrary, the
barden was on the bank to prove it ; and tliis being a point
BO vital in the case as would likely have a very material
inflaence, and po-eibly a eoDtrolIiuff influence in determin-
inf^theresult.weareconBtrainod togranta new trial. SGr't'f
on Ev., sections 537, 520, 523 ; 2 Parsons on Bills and Notes,
154, 155, 156; 31 ffo., 564, 581.
Some distinction wae eon^ht to be drawn, and commented
on in tlie argument, between that portion of the collaterals
falling to the bank under the division, which consisted of
an executive warrant amounting to SS,350.43, and certain
certitied acconnts for printing, for whicli it would seem an
ezecntire warrant had never been issued, amounting to
$1,450.08 ; and the queetion waa mooted as to whether even
though one of these were accepted as payment, etill the
transaction was not to be treated as payment eo far aa con-
cerned the other; or whether, even if the certiiied aci^ounts
were not accepted as payment, still the loss as to that amount
sfaonid he made to fall upon the bank, and not on Rice, on
the gronnd of negligence of the bank in not presenting or
taking etepa to collect them. But as there is to be a new
trial, we express no opinion as to these or other matters of
fact, leaving the merits of the case to be passed on under
such evidence as shall be adduced at another trial, ander the
charge of the court.
Judgment reversed.
WiLLiAus vs. The Griffin Bankiko Cohpany.
A loan was made in 1BT8 at uiurious interest. Two notes were
given, both iufected with uHury, one payndlo in October, tbe
the other in November. 1878. When they miklured tbe usury laws
litd bettD repeuled and had not been re-enncted. The note first ma-
SEPTEMBER TERM, 1879. 17S*
Williams vs. Tbe Griffin Banking Company.
turing was paid at maturity, and when the other matured it was re.
newed (without purging) hy a drift drawn and accepted by the
debtor. In a suit upon the draft begun in 1877. the usury paid upon
the note which wms discharged was not matter of defense, either as
payment or set off. A like rule prevails as to usury upon a third
note infected with usury, executed before but paid in 1873, after the
usury laws were repealed.
2. Under the act of December 11th, 1871, where the contact made
was for more than 10 per cent, interest, it was valid for that much.
3. Where counsel for defendant in error concedes error on a material
point, and calls for no decision upon that point, the supreme court
will reverse the judgment with appropriate directions.
Usury. Practice ii: the Supreme Court. Before Judge
SmMONs. Pike Superior (>ourt. April Term, 1879.
Reported in the opinion.
BoTNTOX & DisMUKK, for plaintiflE in error.
Stkwart & Hall, for defendant.
Blbckley, Justice.
There were two suits by the bank against Williams, each
upon a draft drawn and accepted by the debtor, and pay-
able to the order of the creditor. The first suit was com-
menced on January 16th, and the second on March 20th,
1877; the former upon a draft for $378.85, dated Decem-
ber 2l8t, 1874, and due October 15th, 1875; and the latter
upon a draft for $711.35, dated November 15th, 1873, and
due October 15th, 18t4:, Each draft stipulated for interest
at 25 per cent, until paid, in case of failure to pay at matu-
rity. The elder and larger draft had upon it two credits ;
one for $200.00, dated October 9th, and the other for
$211.35, dated October 19th, 1874.
There was a plea to the second suit, with a prayer that
With suits be consolid<ated, and that this plea operate in
both. It alleged usury, averring that on January 3d, 1?73,
defendant borrowed of plaintiflE $850.00, and gave his two
180 SUPREME COURT OF GEORGIA.
Wiiliame vs. The Griffin Banking Company.
notes therefor; one for $534:,75,clue October 15th, 1873, which
included $85.42 of usury ; and the other for $548.30. due No-
vember 15th, 1873, which latter included $96.40 of usury;
that the former was paid in full, and the latter was renewed
by executing the elder and larger draft now in suit ; tiiat this
draft has in it, as part of the principal, $225.82 of usury;
that on February 3d, 1873, the defendant borrowed of the
plaintiff $250.00, giving his note for $307.70, due liovera-
ber 1st, ] 873, in which was included $44.68 of usury, which
note was. paid in full. The plea presents as a setoff the
usury paid on the two notes, and also resists for usury the
elder and larger draft, claiming that after deducting the
$411.35 credited on the draft, the $8.'>.42 of usury paid on
the first note, the $44.68 of usury paid on the second note,
and the usury embraced in the draft itself, the amount of
the draft will be more than exhausted. The excess or over-
plus is set up as a payment on the younger and smaller
draft.
Both suits were referred to an auditor, whose report was
adverse to allowing anything on account of usury paid on the
notes, or of usury in either draft. The auditor, moreover,
computed interest on both drafts from their maturity, at
the rate of 25 per cent.
In the argument here, the debtor conceded that the
younger and smaller of the two drafts was free from usury;
and the creditor conceded that the elder and larger was
subject to be reduced because the note in renewal of which
it was given was not purged when the draft was executed.
Of course there is no occasion for this court to express its
opinion upon matters in which both parties are agreed.
The questions which remain for decision are, first, whether
the usury paid on the two notes met at maturity is available
as payment or set-off in this litigation ; and, secondly, how
interest ought to be computed on the loan of January 3d,
1873, in purging the note in place of which the draft was
given by way of renewal, and how counted on the draft
itself thus reduced in the principal sum.
SEPTEMBER TERM, 1879.
181
WilliamH V6. The Griffin Banking Company.
1. Of the two iienrious Dotee paid in full at maturity,
one was dated January 3d, and the other February 3d,
1873 ; the former matured October 15, and the latter No-
vember Ist, 1873. They were both paid off more than
three years before either of the present suits was begun,
and both were paid voluntarily after the act of February
lUth, 1873, went into effect. This act repealed all laws on
the subject of usury ; and a previous act of D<^cember
11th, 1871, had limited suits for the recovery back of the
usury paid to six months from and after the payment.
The act of 1873 remained in force until February 2:tth,
1875, when the rate of interest was again regulated and re-
stricted, and a provision against usury re-introduced into
the law. Observe now that the drafts sued upon in the
two actions which we are considering were both executed
between the passage and repeal of the act of 1873. The
plaintiff, therefore, does not come into court upon illegal
contracts, but upon contracts perfectly legal. To this effect
we have ruled several times. In Ilovser vs, Th^ Planters^
Bank of FortYalUy^ 57 Oa,^ 95, we said, on page 99, "In
this promise there was nothing illegal, because there was no
law against usury when it was made.'^ In Broach vs. Bar-
field^ Id. J 601. we took the same view. And so in Ballard
vs. The Peoples Bank^ 61 /J., 458, and Taylor vs. Thomas^
Id.^ 472. And if we had never taken it before, how could we
help taking it now ? for no possible ingenuity of the liuman
mind can make a contract illegal without some law to
forbid it at the time it was executed? While all laws on
the subject stood repealed, how could anybody violate the
law by contracting to take usury? The plaintiff had made
previous contracts to take usury which were illegal, but not
one of these is brought into court as a ground of action.
It is the defendant that attempts to bring them forward
and use them as a means of defense, and this he does, as to
two of them, more than three years after he Iiad paid the
usury which they embraced. In Wilkinson vs. Woolen, 59
Oa., 584, the action was upon a contract made prior to the
182 SUPREME COURT OF GEORGIA.
VV illiams vs. The Oriffin Banking Company.
act of 1873, and we held that if it, the contract sued ortj
was not infected, the notes given afterwards for usurious
interest upon it would not taint it; but that if the plain-
tiff's suit was on a tainted contract he must account for sub-
sequent payments no matter when made. And nothing to
the contrary of what we ruled then and rule now appears
either inOandler vs.Corra^ 64 G^a., 190, or Archer vs. Mc Cray ^
59 lb., 546. If the creditors' suits in these two cases were
based on contracts made whilst the usury laws stood re-
pealed, the reports do not show it ; and so important a fact
would most probabl}' have been stated if it had existed.
Most certainly if it did exist, it must have been overlooked
in adjudicating the cases, for it is contrary to all principle
to hold that a legal contract is subject to the same defenses
on account of usury previously paid as if it were illegal
because of usury. The rule that the taint passes down
through all renewals and contaminates each and every one,
must be confined to renewals which take place whilst some
usury law or other is in existence. If this were not so, at
least in the view of this court, some of its best considered
rulings ought at once to be reversed or abandoned. A re-
newal contract, though itself legal, must have some valid
consideration for an undertaking to pay interest at any rate
whatever for the past use of money, and we have held
in 61 Ga.j 472, supra^ that future indulgence for a definite
time upon a debt passed due is such consideration. Whether
we regard consistency with ourselves or with principle, we
see not how to avoid ruling that neither as set-off nor as
payment can the usury paid upon the two notes be applied
to either of the two drafts, and we decide accordingly.
When the usury was paid there was no law against promis-
ing, paying or accepting it.
2. The next question is easy of solution. We have only
to consider what would have been the process of purging
the note if that had been attempted when the draft was
given in renewal, and what interest the draft would have
borne if the intent of the parties had been fully expressed
SEPTEMBER TERM, 1879.
on the face of the draft after this redoction of the principal.
To purge tliat part of the loan of Jannary 3d, 1873, which
was originally sectired by tlie note afterwards renewed by
one of the drafts now in suit, nil the interest in or on the
note mnet be remitted except the highest rate of conven-
tional interest then {at the date of the loan) allowed by law,
which was ten per cent, per annum ; this rale counted on
the cash for the loan of which the note was given, from the
time of the loan till the time of the renewal, will fix the
piincipnl of the draft, with all usury cleaned off. The rale
of interest specified by the draft itself is twentv-five per
cent, per annum, and as there was no limit at all, except ihe
will of the parties, when the draft was executed, that i-ate
mnst govern from the date of the draft forward. The pro-
visions of the act of December 11th, 1871, in respect to the
rate of interest were, first, that a written contract to pay
not exceeding ten percent, per annum, shall be valid and
binding, and may be enfurced in the courts of this state;
secondly, that when the contract is silent as to the rate,
seven per cent, only can be collected ; and, thirdly, "where
a written contract is made to pay more than ten per cent,
lijr iho use of tiKnicy iii>rrawed, the lender shall not be en-
titled to recover more than ten per centum as interest on
the aam lent." Tlie words which we have put in quotation
marks manifest, we think, by clear implication, a legislative
intent not to cut down usary to the non-conventional rate,
bat only lo the limit of the autlmrized conventional rate ;
and it is on this construction that the mode of computation
above presented is Imsctl, the act of 1871 being the usury
law in force frotti its date down to the repealing act of
1873, We are of opinion, also, that it makes no difference
whether the usury is lilfuded with the principal of the loan,
witif no actual expression of the rate ciiarged, or whether
the true principal '\f- stated separately and the rate men-
tioned in so many words. See Tribble va. Anderson, 68
6a., 32.
8. The defendant in error, as already mentioned, having
]84 SUPREME COURT OF GEORGIA.
Champion tv. Wilson & Co.
by its counsel conceded error in the amount of the draft,
and not called for any decision on that point, the judgment
of the court below is reversed with directions to purge the
draft of all excess by the method of calculation pointed
out in the judgment of this court, which is in conformity
to what has been set forth in the foregoing head of this
opinion.
Judgment reversed, with directions.
Champion vs, Wilson & Company.
1. A coDtract made and to be performed in New York, will be enforced
by the courts of this state according to the legal status it would oc-
cupy in New York; and if illegal there, it will be held to be illegal
here; but the law of that state must be put in evidence before it can
be applied in this state, and unless in evidence before the superior
court according to the record, the judgment of the superior court
thereon will not be reviewed by this court.
2. Where certificates of stock in a corporation are deposited as collat-
eral security, having an indorsement upon them importing a power
to transfer, or of having a transfer made on the books of the com-
pany, and the transfer is actuaUy made some time thereafter to the
parties who held the certificates as collateral, and new certificates
are issued to said parties the same was not wrongful if it was such a
transfer as the power authorized, but if it was not such as the power
authorized, it was wrongful. If the terms of the power be ambigu-
ous, or if the indorsement be blank, the true meaning may be ascer-
tained by the assistance of all the surrounding circumstances.
3. Whilst, in order to make the custom of any trade or business bind-
ing, it must be of such universal practice as to justify the conclu-
sion that it became, by implication, a part of the contract, yet it
need not be absolutely universal without a single exception in the
business or trade; it need not be so universal as to embrace every
transaction of the sort; it is enough if it be so usual, so customary,
so generally practiced by those engaged in the business, that excep-
tions here and there will only serve to establish the habit of the
trade.
4. Where the defendant is sued as an individual, recovery cannot be
had against him as a partner; and if he set up a contract with plain-
tiffs wherei>y they agreed, for a consideration, to relieve him from
SEPTEMBER TERM, 1879.
liability and look to u parEncrsliip for payment of bis indeliiedness
to them, it cannot lie replied in a suit against him iudividuully that
he is a member (if that partnership; and a cliargc lo that effect is
5, The evidence being conflicting, and not requiring the verdict inde-
peoderitly of error in the charge, a new Irial shoulil be gj'nnted. espe-
cially in n voluminous) case, involving tlie Hppliciiiion of intricate
and Important legiil principles to complicated facta.
Contrnctd. Laws. Cullaterals. Stock. Evidonee. Custom.
Partnership. New tiiiil. Before Judgo Siuuo.is. Bibb
Snpuiior Coart. April Term, 1S7».
Wilson & Company sued Cliaiapion on an account for
money advanced by them for the purpose of purcliasin};
"cotton fnlures" in New York for liim, and for coniniit-
sions dne for making bucIi contracts, etc.
Champion pleaded as follows :
let. That it was a contract governed by the laws of
New York, md was null and void under the laws of that
state agaiiii-t builiiijr. vU:
2d. That bef'jre tin; nilvunces were all made, he deposited
stock of the South Camliiia Itaitroaa Company with Wil-
son & Company, wJiicli w:i-* worth about ^1K'''J0.00 more
tban he owed them wlieii thuir account fell due, and that,
according to the gi;ueral I'listom in New York, it was the
doty of Wilson A Compiiriy to have sold haid stock for
tlieir reimbursement wiiliin a reasonable time after suid ac-
conot became due ; that tlio stock has now become worth -
lesB) or nearly so.
ad. That WiiKin & Company did, in fact, without the
knowledge of Cliampion, convert said stock by applying
to the cotnpariy and iiaviiif^ new certificateti of stouki sued
totliem in their owti iiiimo. and surrendering to the company
Did cert! liuates beluiigiu^ tu and deposited by Champion, and
that when titie was done siiid stock was worth several thou-
sand dollars more than Wileun & Company*^ claim against
liim.
4tli. That some time after this account had matured, Wii-
1S6 SUPREME COURT OF GEORGIA.
Champion vn. Wllmn A Co.
son & Company (who held a similar claim for a mnch larger
amount against W. L. Ellis & Brother) applied to him
throuijh Ellis & Brother to allow them to transfer his ac-
count to that of said Ellis & Brother, and to let them hold
his stock as collateral security for the whole account so
merged, they (Wilson & Con^pany) looking to Ellis <fe
Brother, and not to Champion, for the payment of the en-
tire indebtedness. To this, for a special consideration agreed
on between Champion and Ellis & Brother, Champion con-
sented ; that when this arrangement was proposed and
agreed to, Champion's stock was worth some $12,000.00 or
$14,000.00 more than his individual account amounted to,
etc.
The evidence was conflicting on almost all the points in
i?i8ue, especially in regard to the custom of New York brok-
ers in connection with collaterals. It was also claimed by
plaintiflEs, and denied by defendant that he was a partner
of Ellis & Brother in thecc transactions.
The jury found for plaintiff:?. Defendant moved for a
new trial on the following, among other grounds :
(1). Because the court refused to charge the following
request : "The law of New York governing this casu makes
void a contract where a broker there was employed to pur-
chase for another what are known as ' cotton futures,' pro-
vided the evidence satisfies the jury that such * cotton fu-
tures' were known at the time by both parties as simply a
wager or speculation on the rise and fall of the price of
cotton."
(2). Because the court refused to charge the following
request : " If plaintiffs, without the knowledge of the de-
fendant, surrendered to the South Carolina Railroad Com-
pany certificates of the stock of that company which had
been deposited with the plaintiffs as collateral, and applied
for and obtained from said company new certificates for the
same amount of stock in said company, issued to and in the
name of said plaintiffs, this was a conversion of the stock so
deposited, and charged the plaintiffs with the value of said
SEPTEMBER TERM, 1879. 187
Champion vs. Wilson A Co.
Stock at the time said new certificates were issued to the
plaintiffs, nnleos defendant, after knowing of said conversion,
waived his right to charge the plaintiffs with the then value
of said stock."
(3). Because the court charged as follows : " If you be-
lieve from the evidence that such was the universal custom
(t. e. to sell collaterals to pay losses when they occurred), then
it did enter into the contract, and plaintiffs should have sold
to protect themselves. The custom must have been univer-
sal ; it must have been the custom in every transaction of
this sort in New York. If some merchant or broker in New
York failed to carry out this custom, then it was not a uni-
versal custom. Universal means the whole — every one. It
differs from the general custom. General means the major-
ity or greater number. If you believe from the evidence
that it was not a universal custom, then it did not enter into
the contract, and the plaintiffs were not compelled to sell on
the happening of the loss."
(4). Because the court charged as follows: ** The plain-
tiffs say that if yon believe that such a merger (of defend-
ant's liability into that of Ellis & Brother) was agreed upon
and carried into effect, that the defendant is still liable, for
they say that he was either a partner of Ellis & Brother, or
held himself out to them that he was a partner, or acted in
such a wav that he induced them to believe that he was a
partner. You have heard the evidence in this case, and
must say whether he was a partner or not, or whether he
acted in such a way as to make them, the plaintiffs, believe
that he was a partner. If you believe from the evidence
that he was a partner^ or acted so as to make plaintiffs be-
lieve that he was a partner, then if the merger of the account
did take place, it does not relieve Champion from his lia-
bility, if he was originally liable."
(5). Because the verdict wa« contrary to law and the evi-
dence.
The motion was overruled, and defendant excepted. For
the other facts, see the opinion.
12
18S SUPREME COURT OF GEORGIA.
Ib^iipiDtifi. Wilcin £Cd.
La^ikr & Andbkhox, for plaintiff in orror.
Jno, p. Fokt ; N. J. Hammond, for defendaiiU.
Jackbon, Justice.
\
III this cage Wilson & Coin pany sued Champion 'or money
exjioiided by thetn for hiiuin tli(i purchase of cotton ftitares
in tlie city of Navr York, where the contract was made and
wliere it was to be executed. A verdict was rendered for
the plaintiffi), a motion was made for a new trial on man)'
groiinJf, it was overruled, and the defendant excepted.
There arc many grounds set out in the motion, but all
were aWidoned or not urged here except a few which we
procued to consider.
1. Tlie contract being made and to tic carried out in N^civ
Yurk, it is nrged tiiat New York and not Georgia law
shuiild prevail, Code, §6; 36 (ra., 132; 40 /*., 553; but
tin: defendant gave to tiie court below no evidence of anj
law (if New Vork so far as the record diBcloseB, In order
to take a eaee out of our own law, there must bo evidence
before the court that tried the case of the law of the other
Biaie, and the record must show its introduction in evidence.
It dues not appear fniin this record to have been intro-
duced ae evidence at all. Probably the law of this slate, if
ihi' contract had been made and was to be performed here,
would uphold it. 45 6'a., 501; 59 76., ^5. Possibly the
facts here, as insisted upon by the defendant in his testi-
;iKi[iy, might make a case too strong and too much akin to
bL'ttiug for our own statute, and might take tliis c:ise out of
the principle controlling those. See Code, §^638. If it
were an original question, one might well hesitate.
However this may be, the law of New York entered into
this contract, as it was made and was to be executed there,
anil our courts will enforce it, whateverit may be ; and this
contract must stand or fall as the test of that law is applied
to it. But as it was not before the superior court, we can
not review any judgment of that court thereon. That court
SEPTEMBER TERM, 1879. 189
Champion vs. Wilson & Co.
said Tiotliing about it — perliaps for this reason. 57 Ga.^ 371.
Tliis disposes of the requests to charge the New York
law, and to apply it here. When so applied it becomes, as
the law of the contract, Georgia law ; and it matters not
where it came from. For this case — pro hoc vice — it is our
own law. 38 Ga., 129 ; 54 /J., 613, Still, to make it our
law, it nnist be in evidence before the court.
2. But it is insisted further by the defendant, that he
placed certain collaterals, consisting of railroad ^tock certifi-
cates,, in the hands of the plaintiifs, and they changed the
title and converted them to their own u?e, and are responsil)le
for them at their value when converted. If the plaintifls
did convert them without authority, they are certainly
responsible for their value at the date when they appropri-
ated them. So that the question is, did they convert them ?
The collaterals were certificates of stock in the South
Carolina Railroad Company, issued to Zeilin & Company,
who seem to have turned them over to defendant to be.
used with plaintitfs, to cover the margin for the purcliase
of cotton contracts for futures, and some sort of power or
authority to transfer seems to have been indorsed in blank
thereon. These certificates were given as collateral to
plaintiffs in September, 1871, and in October, 1872, they
were given up by them to the railroad company, the stock
was transferred to plaintiffs, and new certificates were
i:?sued to them. This may have been done to guard against
third persons acquiring rights without notice, and to pro-
tect the stock against such liens acquired by others ; or it
may have been an assertion of absolute title, as possibly the
collaterals, as margin, were exhausted. There is some reason
and authority perhaps justifying some such step to guard
against loss — see People's Bank of Bloomington vs. Grid-
ley, supreme court of Illinois, reported in Albany Law
Journal, August 8, 1879, p 123. Ordinarily, however, be-
tween the parties themselves, the assignment and delivery
of the certificates of stock alone would guard the rights of
the pawnees. See 1 Am. Railway Cases, 110 ; Redtield on
190 SUPREME COURT OF GEORGIA.
Champion ve. Wllaon A Co.
Bailment, 659-674; Story Eq. Jur., 412-421, and note; 3
Hill, K Y., 228; 5 Gray, 373; 21 Verm., 353; 6 Conti.,
558; 42 N. H., 424; 29 Penn. St., 146; 13 Conn., 498;
49 Me., 315 ; 34 lb., 256 ; 9 Rh. L, 308 ; 12 Gray, 213 ; 17
111., 86 ; all cited in the Albany Journal case.
But it is impossible to adjudicate this point from the
evidence in this record. The power to assign or transfer
is not here. That is the instrament on the construction of
which this point must turn. Did it authorize the plaintiffs
to change the title on the books and to take the new certifi-
cates ? It is not in evidence, nor is it described by its con-
tents, so that we can see what authority it gave to plain-
tiffs. True, if ambiguous or blank, it ought to be construed
in the light of all the facts of this case, but without the
power itself we grope in the dark. It looks singular that
the plaintiffs should have been content to have held the old
certificates, with the indorsement thereon fot over twelve
months, and then make the change. Did the}^ have the
power by the indorsement or transfer on the old certifi-
cates? If the indorsement gave them the power so to act,
the transfer on the books and the new certificates to them-
selves were not wrongful ; if it did not, they were wrongful ;
if ambiguous or blank, then all the circumstances may aid.
Did Champion know of its exercise? Was it done to secure
themselves against third parties bona fide towards Cham-
pion, or to take absolute title as owners without regard to
his rights ? Why not have the transfer made and the new
certificates made to them for the use of Champion or of
Ellis & Brother, as their version is that the stock was always
held for Ellis & Brother also? But the great question is,
did they have the power? and without the instrument relied
on to give it, we cannot move, for if they had it from
Champion, his mouth is closed.
3. The charge was not right on custom. True, our Code
says, par. 1, sec. 4, that " the custom of any business or
trade shall be binding only when it is of such universal
practice as to justify the conclusion that it became, by im-
SEPTEMBER TERM, 1879. 191
Champion vs. Wilaon & Co.
plication, a part of the contract;" but this cannot mean, as
the court charged, that it mast have been followed " in
every transaction of this sort in New York." For then
one act of one broker would defeat a custom universal but
for that act. Nor does it mean " the whole — everi/ one,^^ as
the court reiterates; but it means, what it says, of such
univei-sal practice as to imply that tlfe trade would under-
stand that it went into the contract. It must be rather
more than general — much more than the habit of a major-
ity ; but not absolutely unbroken by one single transaction of
one tradesman. Such a rule would defeat every custom.
The little word "such" before "universal" in the Code
qualifies the former, and excludes from the section the
meaning given by the judge. In this case, on this point,
the evidence appears conflicting, and would hardly have
established the custom contended for by defendant, even
had the charge been right. Still, as the case will be tried
again, and more light may shine upon the point, the defend-
ant is entitled to the law of his case on this as on all the
points he makes.
4. So too the court erred, we think, in charging on the
subject of partnership. Champion was not sued as a part-
ner, but individually, and there could not be a legal recov-
ery against him as a partner. It matters not that the others
who were alleged to be his partners were bankrupt; and
that the recovery would come out of him in 'any event.
The plaintiffs must sue him as he contracted with them,
and recover accordingly. 43 Ga., 587.
5. The evidence on some of these points is conflicting —
sufficiently so to entitle the parties to have the law fully
and accurately given to the jury ; and as, in our view, that
has not been done on every controverted point in the very
protracted and complicated case the record makes, the ends
of justice require a new trial.
We express no opinion whatever upon the weight of the
evidence other than to say that it does not absolutely re-
quire the verdict without regard to the law given in charge ;
SUPREME COURT OF GEORGIA.
and that law as given might have coiitroliod tlie jury iipoii
miiterial points liotly contested. The jiidgineiit refuging
the new trial is therefore reversed.
Judgment reversed.
:K3'
GiLiiAM & BuowN VS. Wem.s et al.
1. The town ftwtliorities of Stone Mmintain, llioiigli I aving power hy
chiirler lo gniol or withliolrl liccnnes to riitiiil liquors, iind 10 cslnb-
lixb piiKL-c rrjiiiliilioasgi'nernlly, ciinnnt. nrtergriiDLliigiLliCL-nsc. nad
wliilt rfliiiuing llic fee piiid for iLu sunn-, pill's and I'litorf-u nu oi-di-
nnnre rcquirinir itll retikilcix (litis ^ninttit ini'luded) lo cli>-e doors
nnd rorliuiir to Hidl whilst, and nt nil timi's tvlii^n, " any dcnoiiiin.ilion
of C'bristiun people" nre linlding divine si-rvjcc nnywbi-ic in tlie
town. Ilti'ordinnni-u UeiDgiiiluat hs to nny iind nil ollii-r worsliippcrs.
3. A siipuiiition in the bond of 11 reliiiicr lo Mbide liy idi onlitiiin>:L'3
vliitli ni >y tic piisst'd, does not bind him to a subsi'CiUL'iit ordioiinee
wliii L the town ftillhorilica have no power lo puss.
Jackson, Justice, dissented.
Mnnicipal corporations. License. Contraets. Ultt-a
virex. Estoppel. Ordinance, IJefons Judge Spkioii. pt-
Kalb SnpL'Hor Court. March Term, 1ST9.
Gilliiitn '& Brown brought caFe against Wells and otliers
they being tlie imijor and a majority of tlie couiieil of the
town of Slonc Mountain, who bad voted for the ordinance
recited in the opinion, for $l,Oi)0.iK) daitiHgec, alleged to
have been sn^tained by them on account of the enfurceniont
of Eiich ordinance, which tbey claimed to he illegal, u/tnt
virfu, and void. Plaintiffs alleged that on the 5tli of Jan-
uary, ISi.S, the mayor and coiiticil of Stone Mountain
granted them license to sell and letail Kpiritnons liquors
within the corporate limits of said town for the period of
the next eii-uiiig twelve nionths, they paying therefor
$l7a.'Xi, taUitig the oath atid giving the bond required of
SEPTEMBER TERM, 1879. 193
Gi'tiani & Brown vs. Wells ei al.
tliem. That on the fifteenth of the same montli defend-
ants passed the ordinance referred to, without authority of
law, in excess of their chartered powers, and for the pur-
pose, and with the malicious intent, of injuring, disturbing,
and so far as they could, of depriving plaintiffs of the
exercise of their said licensed privileges. The declaration
then sets out how strictly the ordinance was enforced by
the defendants, ^ind shows the damage to the plaintiffs.
The defendants pleaded the general issue, and estoppel
by reason of the terms of the bond executed by plaintiffs
as a condition of obtaining license.
The jury found for the defendants. The plaintiffs moved
for a new trial upon the following grounds :
1. Because the verdict was contrary to law, evidence, and
the principles of justice and equity.
3. Because the court erred in charging the jury as fol-
lows: ''The mayor and council had full power and author-
ity under and by virtue of the charter granted to the town
of Stone Mountain, to pass and enforce said ordinance
recited in the declaration, and possessing such power they
were not individually liable to the plaintiffs for any damage
sustained by them by reason of the passage and enforce-
ment of said ordinance."
3. Because the court erred in charging as follows : " If
you believe, from the evidence, that at the time the plain-
tiffs procured license to retail in 1878, they entered into
bond conditioned to keep the ordinances of the present
mayor and council, and their successors in office, regulating
the retailing of spirituous liquors, then the plaintiffs would,
by the same act, be estopped .from recovering damages of
the defendants."
The motion was overruled, and plaintiffs excepted.
The facts, in addition to those above stated, eo far as
material, will be found in the opinion.
L. J. Winn, for plaintiffs in error.
Hdlsky & McAfee, for defendants.
194 SUPREME COURT OF GEORGIA.
Oilhim A Brown w. Well, tl al.
Bleckiky, Justice.
It Is iniposaiblo to ignore the evils of intemperance or
the h1(>!isi]iga of religion. No candid observer can fail to
notice th(;ni or to be impreesed by them. Tliat the voca-
tion of retailing epirititous liquors proinoteB intemperance
is certain ; nevertheless, a retailer is entitled to all his legal
rights, iiiid they cannot be denied to him ia the interest of
religiuii, great as it is, or in. any other interest. No court
can mould its decisions by a higher standard of morality
than the morality of the law. Law is the measnrc of
forensii: justice. So far as I know, the court-house is the
only place on earth where the vicious and the virtuous
may L-ontend upon perfectly equal terms, receive the same
pHtiL-Tii and impartial hearing, and have their respective
dues, whiitever they may be, meted out in the decision. It
is this characteristic, more than any other, which entitles
tlto coiii't-house to be called a temple of justice.
1, liv charter, the mayor and council of the town of
Stone Mountain have power "to do and perform all things
toward keeping the peace, preventing vagrancy, lewdness,
violations of the sabbath, playing at cards, or at any other
game or sport at which money is usually won or lost, take
all meanij to catise the streets to be worked, nuisances to bo
reniovi'il, and to do alt and every act they may think proper
to prctiLM-ve the morals, health and good order within the
corporate limits of said town, as fully and as effectually as
if a gnint of power were hereby given them in every case
which may arise, and power to grant or refuse license for
peddlers, and to paEs all laws, ordinances and by-laws for
the government of the same, so as to enable them to do
and pt-i'form all acts not inconsistent with the laws of the
Uniteii States or the state of Georgia;" also, "to abate
nui.'iaiK'cs and enforce proper police laws ;" also, " to impose
such tinea not exceeding fifty dollars, or imprisonment in
ihecjiliihoose not exceeding twenty days, or both, for the vio-
lation i)f any of tbo laws or ordinances of said town within
SEPTEMBER TERM, 1879. 195
GUhnm & Brown v«. Wells et al.
its corporate limits ;" also, " to grant or withhold, to any per-
son or persons, license to retail and sell spirituous liquors
within said limits, and in no case shall the license be tor a
larger sum than two hundred dollars for twelve months,
and no license shall be granted for a less time, and the per-
son receiving the same shall execute bond and security to
said mayor and his successors in office, conditioned that he
will not sell liquors on the sabbath-day, and shall also take
an oath to observe and not violate the ordinances of said
town ; and for a violation of any of said ordinances, the
party guilty thereof shall be liable to pay such lines as may
be assessed by said mayor or any three members of council."
Acts of 1872, p. 266.
Under these charter provisions, the mayor and council
establi>hed by ordinance a fee of $175.00 for a license to re-
tail spirituous liquors: and on the 5th of January, 1878, the
plaintiffs in error paid the fee, gave the required bond, took
the prescribed oath, and procured a license to retail for twelve
months from that date. There is no dispute that they thus
became entitled to retail within the town, and that they
entered into business accordingly. Shortly afterwards, new
incumbents were installed in the mayoralty and council,
and the former board retired. The new board, of which
the defendants were members, passed an ordinance in the
following terms, and caused it to be enforced :
" Be it ordained that during the continuance of divine
service at any time hereafter to be held by any denomina-
tion of Chrii^tian people within the corporate limits of Stone
Mountain, the doors of all houses or rooms where intoxi-
cating liquors are sold by letail shall be closed ; and if any
person sell or causQ or permit to be sold, or in any manner
furnish any intoxicating liquors, spirits, wines, or other
intoxicating drinks during the time appropriated to such
worship, he shall pay a fine of fifty dollars upon conviction
for each offense. And it is further ordained that this pro-
hibition shall cover the entire time appointed for such divine
worship, from its commencement to its final close, that is,
190 SUPREME COURT OF GEORGIA.
Gilha<u & Biow > vg. We\\%etat.
it covers not only the time in which such services are being
actuall}^ performed, but on all protracted occasions, it covers
intermissions by day and ni<rht."
At the tiial of the present case in the court below, the
presidinor judp^e charged the jnry that the mayor and council
had power, l)y virtue of the charter, to pass and enforce
this ordinance. The jury were thus constrained to find
against the plaintiffs on one of the main branches of the
controversy.
a. The cliartered power in respect to license is to grant
or withhold, and the duration of the grant cannot be less
than twelve months. Does the power to grantor withhold
include or imply the power to grant, and after granling, to
forbid the use for some indefinite or uncertain part of the
twelve months, both by day and by night? Nothing is
more nninifest than that the validity of the ordinance can-
not be made to rest on this provision of the charter.
i. The general police powers conferred by the charter
are, however, very broad and comprehensive. May the
ordinance stand upon them? Mark that tlie divine service
or worship which the ordinance embraces is not co^tined to
pu!)lic service or worship in a ciiurch, meeting-house, or
other defined or described place or places, but that the ordi-
nance comprehends worship conducted anywhere in the
town. By charter the area of the town is a circle having
; a radius of lOot) yards, and, of course, a diameter of 2(X)0.
Any denoniination of Christians might assemble on any part
, of this area, at any time, by day or night, and when their
services of devotion began Ihe business of thf» plaintiffs
had to be suspended and remain suspended until the services
were over. The worshippers might take rests or intervals
• in their spiritual exercise, and during these, might return
to their avocations and prosecute them, but the plaintiffs'
doors were to remain closed until the iinal breaking up.
By adjournment from day to day and from night to night,
a religious meeting might be protracted indetinitely ; and
in a time of peculiar zeal and excitement, a few such pro-
SEPTEMBER TERM, 1879. 197
Gitliaiu & Brnwu vs. VVcUs et oU.
tracted meetinirs by each of tlie Christian denominationp,
cominor one after anotlier, might exhaust a good part of tlte
year. In neitlier place nor time doe^ tlie ordinance lay
down any limit. It leaves open the whole territory of the
town to become the scene of protracted worship, and every
day and every night, and each hour and minute of the day
or night, the ^ervice3 may begin, continue or be resumed.
And the Christians, not of the town only, the county, the
state, the Union, the continent, but of the whole earth, are
allowed at their pleasure to close the plaintiffs' doors and
arn^st their business on the sole condition of holding divine
service somewhere, anywhere, in the town. The will of
Christendom i> thus made the arbiter of the plaintiffs' traffic,
and the corporate will of the mayor and council determines
nothing but the duty of submitting, and the penalty of dis-
obedience. To compare this ordinance to one which re"
quires retail establisliments to be closed at a specified hour
in the night (lo 6V^, 53"j), is like comparing an indefinite
tract of forest to some certain, well-known tree in a city
park. For the authorities of an incorporated town to license
a business, and then by ordinance to expose it to indef-
inite suspension at the will of any and every assembly of
Christians who may choose to engage in exercises of devo-
tion anywhere within the corporate limits, secerns to me un-
reasonable as a police measure, or in any other aspect.
c. Eut were it competent for the mayor and council to
set up indirectly any will other than that of the corporation
to regulate the time of closing and re o])ening the plain-
tiffs' doors, and could they select for that purpose the devo-
tional will of worshipping assemblies, it is contrary to the
spirit and genius of our law to discriminate for or against
any particular religion, faith or creed. There can be no
monopoly of any privilege connected with worship or the
protection of worship. If profane doors must close for one
faith, they must for every faith. To readers of the con-
stitution and the Code of Georgia, such a phrase as "any
denomination of Christian people,' is unfamiliar as a legal
SUPREME COURT OF GEORGIA.
expresBion, &nd the reason is, that the state treats all
religions alike, I will cite somo examples from the Code:
BnildingB used for "pnblic worship" exempt from taxa-
tion. §798, p. 4. "Church" may be incorporated. §1677.
CoDveyanetis to or for use of any "church or religions so-
ciety" for the purpose of erecting "churehes or meeting-
houses," good and valid. §2343. Trustees eabject to the
authority of the "church or religions society" for which they
hold in truBt. §2344, Proviaions for "religions" instruction
or worship, proper matter of charity for equitable jurisdic-
tion. §3157, p. 3, Nothing "religious" if licentious in ten-
dency, or inconsistent with the peace and safety of the
etate. §3159. Every "church or religious society" author-
ized to fill up vacancies in its trust board. §2345. All
criminal laws in force March 5lh, 1856, for the protection
of "religious societies," extended to all societies by what-
soever name called. §2346. Selling, or causing to be sold,
any spirituous or intoxicating liquors, within one mile of
•.\nj "church or meeting-house," or other place set apart or
licing used for "divine service," during the time appropri-
ated to such worship (unless the same be within an incor-
jiorated city or town), declared a misdemeanor. §4575.
Vending or exposing to sale anything whatever within one
loile of a camp-ground, during a period of "divine worship,"
ivithout written consent, made penal. §4576. Policemen
limy be appointed for any incorporated "cliurch or camp
ground," whose dnty it is to arrest disturbers of the eon-
^'regation assembled for "religious worship," §4577. Bathing
<m the sabbath day in view of any route to or from any
■*liou8e of religious worship," declared a misdemeanor.
§4581. The religious attitude of Georgia is that of a friend
to religion generally, with no faith or creed of her own,
and no preference for one over another. Her laws protect
all equally and impartially, aud she has conferred no authority
iin any local board or other body of magistracy to legislate
in behalf of the "denominations of Christian people" and
leave all others out. There is no "stat*" religion, and there
oaunot be a "town" religion.
SEPTEMBER TERM, 1879. 199
Gilham A Brown V9. Wells et al.
2. In the bond which the plaintiffs gave when they ob-
tained their license, they undertook to "abide and keep all
ordinances of the present mayor and council and their sue-
ccsf'ors in office, regulating the retail of spirituous liquors?
and save harmless the present retiring mayor and council
from any damages or responsibility that may grow out of
issuing said license." The court, in charging the jnry,
treated this bond as estopping the plaintiffs from any re-
covery in their action. The previous instructions had
already killed the case, and this slew the slain. The proper
construction of "all ordinances" is, all legal ordinances —
all that could be legally enacted. An ordinance which is
ultra vireSy or for any other reason void, is no ordinance at
all. It is no more than blank paper. If a person contracts
to obey all statutes passed by the legislature, must he there-
fore obey an unconstitutional act ? Surely not.
The charge was erroneous, and there should be a new
trial.
Judgment reversed.
Warnek, Chief Justice, concurring.
The seventh section of the charter of Stone Mountain
declares " that the mayor and council of Stone Mountain
shall have power to grant or withhold, to any person or
persons, license to retail and sell spirituous liquors within
said limits (one thousand yards in every direction from the
Georgia Railroad depot), and in no case shall the license be
for a larger sura than $200.00 for twelve months, and no
license shall be granted for a less time, and the person
receiving the same shall execute bond, etc." This section
of the charter is exhaustive upon the question of retailing
spirituous liquors within the limits of Stone Mountain, and
confers no authority on the mayor and council to pa$^s the
ordinance complained of. The sole power granted in the
charter in relation to the sale of spirituous liquors within
the limits of the corporation, is the power to withhold or
200 SUPREME COURT OF GEORGIA.
O lliam & Brown v». WcUa et al.
to grant the license on the term^ therein prescribed. If the
mayor and council grant the license to retail for twelve
month?, and receive the money therefor, then, nnder the
charter, with the money in its treasury, it had no power or
authority to practically defeat the object of granting the
license by the passage of the ordinance in the record. In
other words, the mayor and council, under its charter, have
no power delegated to it to serve " God and Mammon." If
it desires to serve the former, then let it witiihold the
license; if the latter, then let it grant the license, take the
money for it, and let the traffic go on, but don't undertake
to run both scheduler, especially when its charter does not
authorize any such proceeding.
Jacksox, Justice, dissenting.
1. It is true that the constitution and laws of Georgia
open the entire state to the free exercise of religious opin-
ion and worship therein, so long as such worship does not
embrace or encourage licentiousness or immorality ; and
Jew or Gentile, Christian or Pagan, are alike entitled to
equal protection under our liberal and wise toleration of
perfect freedom of religious thought, and equality of pro-
tection extended to religious worship, Nor do I suppose
that it entered into the brain either of the counsel who ad-
vised, or the town authoiities of Stone Mountain who en-
acted, the ordinance in question, that any preference was
thereby given to Christians over other woi*shippers. It so
happens that at Stone Mountain, as in most of Georgia vil-
lages, the only churches are Christian, and the only wor-
shipping societies are believei-s in Christ as the Son of God.
If there be a place of woi'ship or any society of worship-
pers according to any other faith within the limits of Stone
Mountain, the record does not disclose it, nor have I ever
Iieard of such place of worship or society of worshippers
therein. If such had been the case, doubtless the ordinance
would have extended to them, as it should, equal protection
SEPTEMBER TERM, IS 79. 201
Glihuin & Bfoun tvr. Wei's ft ai.
against tho danger of riot or interruption from <^rog-seller8
and <^rog-drinker8 whilst the mind should be comj)o.<ed for
the worship of the common Creator of all. Therefore, I do
not tliink the ordinance void because it does not name other
as well a» Christian worshippers.
2. The charter of Stone Mountain gives to the town au-
thorities power to grant or to withhold license to retail spir-
ituous liquors. The power to grant, covers the tenns on
which license is granted, except in so far as the terms are
prescribed and restricted in the legislative grant of the
power. Therefore, the restriction that the retailer should
not sell during religious meetings, whether stated or pro-
tracted, whether white or colored, is within the grant to
license, that restriction not being forbidden by any Avords
in the grant to license or in any other part of the charter.
A greater power includes the less over the Fame subject-
matter ; therefore the power to withhold license altogether
includes the power to withhold unless it be accepted on
terms, or to withhold for certain solenm occasions, or fej^-
tive occasions, or on certain days. Therefore the power to
put this restriction upon these retailers is clearly deducible
from the very broad grant of power to withhold all license.
3. If it be argued that after this license was granted, the
council could not curtail or restrict its unlimited exercise
for one year, I answer that these plaintiffs, in order to
obtain license, voluntarily agreed to take it subject to any
future ordinance which might be passed by the council
granting it, or by their successors. Therefore they stand
precisely as if the ordinance had been passed prior to the
issuance of the license. They not only so agreed, but came
under bond with hands and seals thereunto affixed, to be
controlled and regulated in their traffic by ordinances en-
acted in the future. This agreement and bond became part
of the contract of license, as much so as if included in the
same writing — and they are bound by their contract.
4. The plain facte, considered altogether, irrespective of
any isolated views of law applicable to portions thereof,
SUPREME COURT OF GEORGIA.
show that there should be no recovery, and that the verdict
is right.
Tlie suit 13 brought to recover damages from the town
authorities as individuals, for their conduct in the dis-
charge of their public truBts. It ie brought under the fol-
lowing state of facts. A wet and dry ticket were voted for
for town authorities. Those in favor of the retail of spirita-
nus liquors and those against it met in battle. There wa«
an open field and a fair fight, and at tho close of the day
victiiry perched upon the hosts of temperance, and the
dram-sellers were sorely disconificted.
What eliould, what could they do? They hastened to the
outgoing council, before the victors who had fairly won the
field could be installed, and applied for liecnse. Everybody
loves fair play. It loolced wrong even to the outgoing
party to run counter to the policy of a majority of the
people, and to forestall their contemplated stoppage of the
traffic. So they finally concluded not altogether to dia-
oiilige their friends, the applicants, but to grant the licensu
suh modo, on condition that they should be protected, and
that the incoming administration should l>e permitted to do
after license whatever they themselves could do before.
Thereupon, on being installed a few days thereafter, tho
new council, naturally distrustful of those who thus procured
licence and anxious to do nothing without l^gal authority,
took legal counsel and advised with Judge Floyd in respect
to their powers under tiiis state of facts and their charter.
The judge advised them that they could not revoke the
licen^e, but that they conid regulate how it should be used ;
and at their request drew up the ordinance in question
which the council adopted. And this suit is brought by
these ptaintiSs, thus obtaining license against the will of
the miijority of the community in which they live, and
thus under bond imposed by their own friends to abide the
terms which should be imposed by the new council, against
that council for their ofiicial conduct in passing the ordi-
nauce and enforcing it, on the ground that they acted ma-
SEPTEMBER TERM, 1879. 203
Lee n. Tbe SUle.
licioaslj. 'v. is sought to make these officers indlvldaaUy
a.n.6 personally liable for fines imposed and puid into the
treasnrj of the town, and for profits on the liqnors they
conld hare sold whilst God was being worshipped, and in
wliich the defendants had no personal or pecnniary interest
whatever, notwitlistanding (he liot haste with which plaintiffs
mshed to thwart tbe community, notwithstanding the con-
tract they made and the bond they executed, and notwith-
standing the prudent and considerate manner in which the
defendants officiallj/ acted.
In my jndgment there is neither law nor eqnity, nor
good scnee, nor good morals, in pcnnitting plaintilfs to re
cover one cent ; and I therefore dissent from the judgment
of reversal — with entire respect, let me add, for my col-
leagues, and with regret that my own convictions are too
strong to permit me to yield to their view of the law.
Les v8. The State of Geobqia.
Tliough, ftfter commitliDg larceny (stealing a liorse) in an adjoining
siHIc, (lie Ibtef hrings tb« sloleo property into ibis slate, and bero
carries it from place to place in a county of Georgia, ho (iocs not
commit simple larceny in this slate.
Criminal law. Larceny. Before Judge McCutchen.
Whitfield Superior Conrt. April Term, 1879.
Lee was indicted in the county of Whitfield for the
larceny of a horse. The proof showed that if he was
guilty of thLi tlu'ft, tile AvX was perpetrated in the state of
TeDni;8eee; but also, tliat Iki had brought the horse into the
county of Wliittitild, h:iil there endeavored to sell him, and
hod exercised olhur act^ of ownership. The defendant was
faBnd guilty. IIu nioviij for a new triiil, among other
.grounds, bccaiif<? ihf ourt erred in charging as follows:
"If a person iriiiuiiil'.'iilly got the possession of personal
^
S04
SUPREME COURT OF GEORGIA.
Lm t». The State.
property from the owner of it in the state of Tennessee
by a pretended hiring, and if the hiring be used by him
simply as a fraudulent means to get the possession from
the owner, and if his real motive and intent was,^ at the
time he got possession, to steal the same and deprive the
owner of his property f and such person, after thue fraud-
ulently getting possession of property, brings it into Whit-
field county, in the state of Georgia, and if he, after bringing
the property to this county, moves it about in this county
from place to place, and appropriates the same to his own
use in this county, and if such asportation and appropria-
tion in the county of Whitfield be all the time accompanied
with the intent to steal and deprive the owner of his prop-
erty, such asportation and appropriation in Whitfield county,
if done with intent to steal, would amount to larceny under
the laws of Georgia,"
The motion was overruled, and defendant excepted.
W. C. Glenn; Johnson & McCamy, for plaintiff in
error, cited 1 Chit. 0. L., 178; 3 /J,, 944; 1 Haywood^
100; 2 John., 477, 479; 5 Binney, 617; Eos. Grim. Ev.,
657; 2 Vroom, 82: 4 Humphrey, 456-59 ; 15 Ind., 318;
14 La., 278.
A. T. HACKBTr, solicitor-general, for the state.
Bleckley, Justice.
The accused stole a horse in the state of Tennessee. He
brought the animal into this state, and here carried it from
place to place in the border county of Whitfield. In that
county he was indicted for the offense of simple larceny,
and being convicted, moved for a new trial, which was
refused.
Whether he was guilty or not, depends upon whether a
fresh larceny was committed here. The doctrine that a
larceny is repeated in every county of the same sovereignty
in which any asportation of the stolen goods occurs, is
SEPTEMBER TERM, 1879. 206
Giles, ordinary, for nee, of. Spinks et al.
established ; and to tliat extent the fiction is to be accepted
in place of the orignal fact. Fiction ought to have no
place in the law, and it is to be hoped that the time will
come when it will be rooted out; but in so far as it has
been incorporated into the law, it must, for the present, be
treated as of equal potency with reality. We have adopted
the common law of England, and with it the theory of
repetition larceny^ but in that country this theory would not
embrace the present case ; and that it would not there em-
brace it is a very sufficient reason for holding that it does
not embrace.it here. Ros. Cr. Ev., 646 ; 2 Russ. on Crimee,
1 19 ; 4 Bacon's Abr., Bouvier's Ed., 179. In this country
the decisions are conflicting ; see Whar. Cr. Law ; Wliar.
Cr. Ev.; Bishop's Cr. Law; Rorer on Inter-State Law. We
think the soundest decisions are those which least favor the
doctrine of constructive crimes. The true legal relation of
the accused to our state, is that of a fugitive from justice
from the state of Tennessee.
Judgment reversed.
Giles, ordinary, for use, vs. Spinks et al.
1. The jurisdictioa of the county court of Houston county at iU
monthly sessions is for aU claims up to $100.00, and if the plaintiff
in his declaration declare for that sum only, the Jurisdiction will lie
maintained, though damages beyond that amount be proven and
found by the jury.
2. He can only recover as much as he declares for— no more; therefore
the verdict for more is illegal, but the surplus may be written off
and the verdict may stand for the sum found within the juriadic-
tion.
X A verdict is certain which can be made certain; and where the
damages to plaintiff on a constable*s bond for failure to levy is
found to be two principal sums with interest up to a certain time
and from a certain time at different rates on each principal sum, ao
as to calculate exactly how much damage the Jury found, the ver-
dict is sufficiently certain to predicate a judgment thereon, and the
Judgment should not be arrested because of the alleged uncertainty
of such a verdict and impossibility to enter up Judgment thereon.
806 SUPREME COURT OF GEORGIA.
Giles, ordinary, for nee, vt. Sptnks etat. *
Jurisdiction. Verdict. Damages. Practice in the Supe-
rior Court. Before Judge Simmons. Houston Superior
Court. November Adjourned Term, 1878.
This was a suit by the ordinary for use of Jaques &
Johnson against Spinks, constable, and the sureties on his
bond. The case was brought in the county court of Hous-
ton county ; tlie breach alleged was the failure to realize
the amount of two Ji, fas. placed in his hands, bearing in-
terest as stated in them ; the damages were laid at $100.00*
The county judge rendered judgment for plaintiff for the
principal sum of $97.79, and defendants appealed. On the
appeal the jury found the following verdict : " We, the
jury, find for plaintiffs $43.77, with interest from the 14th
of December, 1873, at one and one-half per cent, per
month ; also the sum of §43.77, with interest at two and
one-half per cent, per month from the 24th day of Decem-
ber, 1873, against H. N. Spinks, H. C, Harris and W. R.
Brown, Jr., executor."
Defendants moved in arrest of judgment on the follow-
ing, among other grounds :
(1.) Because the case was beyond the jurisdiction of the
4SOunty court.
(2.) Because the verdict should have been for a fixed
amount of damages, and no legal judgment could be en-
.tered on it as found.
The court sustained the motion, and plaintiff excepted.
W. E. Collier, for plaintiff in error.
A. L. Miller, for defendants.
Jackson, Justice.
The plaintiff sued, on a constable's bond, the constable
and his sureties for damage arising from failure to levy,
laying his damage at one hundred dollars in the declara-
tion. The suit was brought in the county court of Houston
SEPTEMBER TERM, 1879. 207
Giles, ordinary, for nse, vs. Spinks el al.
county returnable to its monthly session. The jurisdiction
at these sessions of that court is one liundred dollars. The
case was taken by appeal to the superior court, where ver-
dict was had for more than one hundred dollars, and the
judgment was arrested.
1. It is the amount of damages laid in the declaration
that fixes the jurisdiction, and not the verdict of the jury.
Tyler Cotton Press Company vs. Chevalier^ 56 Ga., 494 ;
Lee vs. Nelms^ 57 /J., 256.
2. Therefore the jurisdiction is maintainable; and if the
verdict be over the jurisdiction, and more than the plaintiff
claims, it may be written down to the sum laid in the de-
claration. It cannot be for more. Harris vs. Dub, 57 Ga.y
77; Ansley vs. Jordan, 61 76., 488, 208; 15 /J., 554; 20
lb., 91 ; 45 /J,, 94, and many others.
3. A verdict is certain which can be made certain by
what itself contains or by the record. This verdict finds
that plaintiff was damaged two certain principal sums on
two notes reduced to judgment and interest at a certain per
cent, on each. Though the interest be at different rates
per centum, the damage found can be ascertained by a
simple calculation in multiplication and addition which any
school-boy can make. Therefore the verdict is for a certain
sum. All over one hundred dollars is wrong. Let it be
reduced to $100.00 and stand for tint sum as damages with
costs of suit ; that is, costs in this case on the bond, and not
costs in the actions on the notes. Code, §3561 ; 14 Ga.,
691; 57 /J., 804; 19 lb., 298; 24 lb., 591. Therefore
the judgment on this verdict should not have been arrested.
Judgment reversed, with directions accordingly.
208
SUPREME COURT OF GEORGIA,
Mitchell V8. Word, goardian, et ai.
;•.> J
Mitchell vs. Word, guardian, et aZ.
1. While by comity the wife of a uon-resideDt who died intestate may
be allowed to sue in Georgia for her year's support, there being
property licre, especially if there are no debts against the intestate
in the state of his residence, yet the amount of her recovery will be
regulated by the law of the state of intestate's domicil.
2. By the statute law of Florida a widow is entitled to dower in her
husband's personal property as well as his realty.
3. In a contest over a widow's dower and year's support, the jury found
the following verdict : *' We, the juiy, find and decree $600.00 for
one year's provision for the widow and the family; and also we. the
jury, find the widow is entitled to one third of the personal prop-
erty of the deceased, and that the following notes shall be consid-
ered as part of the deceased's personal property: One note on J. N.
Whitner for the sum of $1,200.00, also one note on Brantley for
$3,500. And we further decree that all moneys furnished the
said widow by the administrator shall be charged to her, except
what she has received on her land dowry :"
EMd, that by a reasona?)le construction of the verdict, the jury did
not find that the acceptance of the notes barred the taking of
dower, but that she was entitled to the notes as part of her dower,
and left open the question whether, on final settlement, she would
be entitled to more.
Jackson, Justice, dissented.
Tear's support. Administrators and executors. Dower.
Laws. Verdict. Before Judge Underwood. Floyd Su-
perior Court. March Terra, 1879.
Reported in the decision.
Wright & Featherston, for plaintiff in error.
D. S. Printup ; Alexander & Wright, for defendants.
Warner, Chief Justice.
It appears frora the record in this case that T. J. Word
and others, the children of D. R Mitchell, filed their bill in
Floyd superior court against Mrs. C. A. Mitchell, the widow
of D. R. Mitchell, and C. D. Forsyth, the administrator.
Suit brought to the January term, 1878.
SEPTEMBER TERM, 1879. 209
Mitchell v». Word, guardian, tt al.
The bill alleges that D. R. Mitchell died intestate in No-
vember, 1876, domiciled in the state of Florida, where he
left an estate worth about $12,000.00. Administrators had
been appointed there. The intestate also left an estate in
Floyd county, Georgia, consisting of lands valued at about
$15,000.00, and personal propertj' worth about $5,000.00.
C D. Forsyth had been appointed administrator in Geor-
gia. The estate was considerably in debt in Georgia;
owed nothing in Florida.
For some time prior to his death the intestate had been
in very bad health, and seemed conscious of his liability to
die at any time. A few weeks before his death he called
liis wife, Mrs. 0. A. Mitchell, into the room where he wa«
and told her that he was feeling badly or strangely, and that
ho might die before morning, and called for writing mate-
rial which was furnished him, and he left alone. In a short
while after he recalled his wife, and in the presence of her
little daughter Carrie, (by a former husband,) offered her
the following notes :
One note on B. F. Whitner of Orange county, Florida,
for $1,185.00, dated January 1, 1876, and due January 1,
1880, with interest at 8 per cent., payable annually, with
this indorsement :
**I do liereby give unto my dear wife, C. A. Mitchell, this note for
her individual and separate use and benefit, and direct that payment
he made to her, and the mortgage on which it is founded.
Witness xny hand and seal, September 26. 1876.
D. R MiTCDBiiL, [ikal ] '
Also one note on J. N. Whitner for $1,200.00, dated
January 1, 1876, and due January 1, 1878, with interest,
indorbed as follows :
"I have given the above note to my dear wife, C. A. Mitchell, for
tier indtvidunl use and benefit, as part of -her interest in my estate.
This 26th day of September, 1876. D. R. Mitcuell,"
Also one other note on 6. C. Brantley for $3,500.00»
dated September 2, 1875, and due twelve months after,
with interest at 10 per cent., indorsed as follows :
SUPREME COURT OF GEORGIA.
Hltcbfll M. Word, gaardUit.
"Ibaveaoddo hereby give tbe above note ttvDiy dear nife, C A.
Mitchell, for bor individual uae and benetlt. na part promion for Ler.
Witncsd my hand and seal, tbia 2Glh of September. 1876.
DR. MiTCBELi.. [&«/.]" .
The intestate stating to tiis wife at the time, if he should
die she was provided for, handing the notes to Carrie and
telling lier to put thcni in her mother's trnnk. Said notes
are now held by Mrs. Mitcliell, and are Eulvent.
That shortly after her husband's death Mrs Mitchell
moved hack to Rome Ga,, the former home of both parties.
She here applied to the ordinary for the assignment of a
year's support, as provided by the laws of Georgia. On.
May 9th, ItiTT, commissioners appointed for that purpose
assessed $2, "00.00 "for her support and maintenance for
twelve months from the death of D. R. Mitchell, including
house-rent and furniture." Complainants filed various ob-
jections to this allowance, and at the ordinary's court in
August, 1^77, said objections were passed upon and over-
ruled, except that the amount allowed was reduced to
$1,500.00, From this judgment of the ordinary the com-
[ilainants had appealed to the superior court, and that appeal
was still pending. The ordinary then passed an order that
the administrator furnish the widow necessaries for her sup-
port pending the appeal, and complainants had appealed
from this order also. They allijge that the widow is not
entitled to a year's support in Georgia, and the ordinary
has no jurisdiction of the matter ; altio that the sum allowed
was grofsly excessive. That the note of B. F. Whitner*
before described, was intended by the intestate as a provi-
eion in lieu of year's support ; and tliat the notes of Brant-
ley and J. N. Wliitner were handed Mrs. Mitchell to be ac-
counted for in the distribution of the estate, as ahown by
the circumstances of their delivery. These notes will more
than cover all interest she may have in the estate, whether
year's support or dower or both.
The prayer is for discovery ; that the payment of any-
thing towards year's support be enjoined, and her i-ighte oa
SEPTEMBEK TERM, 1879. 211
Mitchell 98. Word, guardtan, et al.
that subject settled in this case ; that Mrs. MitcheU be en-
joined from collecting anything on said notes, but be re-
quired to turn them over to the administrator, or else
* accept them in lieu of any interest she may have in the es-
tate ; and for general relief.
The complainants amended the foregoing bill by alleging
that the before described notes on J. N. Whitner and G. G.
Brantley, indorsed to Mrs. Mitchell as before stated, "were
so written, indorsed and delivered to her by D. R. Mitchell
in consideration of and for her entire interest as widow and
heir at law in his entire estate, both real and personal, both
as dower and distributive share of personalty ;" and that
the note on B. F. Whitner was given in lieu of year's
support. And they pray that she may be enjoined from
prosecuting her claim for dower in the lands.
The allegations in the bill are answered in detail, but the
following only are material here :
The intestate, her husband, had been a citizen of Floyd
county most of his lite, as she herself had been. Only a
short time before his death they moved to Florida. Imme-
diately upon his death she came wicli his remains back to
Georgia, where his body was interred in his family burying-
ground here. She came back to live here permanently, and
this has been lier home ever since.
She admits the gift to her by the intestate of the three
notes on the Whitners and Brantley, and sets forth copies of
^aid notes and their indorsements. Slie was herself unwell
at the time of the gift, and the intestate came to her room
and handed the notes to her in bed, saying, " here are some
notes which I have indorsed to you, you may need them.'^
Respondent handed them back to him, requesting him to
give them to lier daughter, Carrie, to put in her trunk,
wliich he did. He did not say, " If I should die you are
provided for," nor anything to that eflFect.
She denies that either or any of said notes was or were
given her in lien of year's support,- or for any other pur-
pose than as stated in the written assignments thereon.
;.. -I
312 SUPREME COURT OF GEORGIA.
Milthsll «. Word, gusHlui. it al.
In ber answer to the amendment ehe states that she knows
of no fact or circumstance on which the complainants could
base their allegation that said notes wero given in lieti of
her entire interest in the estate. There was no writing of
any kind other than the indorsements conveying the notes
to her, or pertaining to the transaction in any way. The
intestate said, " Here are some notes I have indorsed to yon,
you may need them," or words of similar import ; and that
was all he ever said to her on the subject. He certainly
did not say they were given in lieu of any claim she might
have on his estate, and she did not so accept them. So far
as she knows or has any reason to believe, and does believe,
said gift was prompted purely by the generosity of her
husband. He liad a short time before given off to the com-
plainants, his children, the bulk of his estate, the amonot
being, as estimated by him at the time, and as she alleges,
$10,000.00 to each child or share, and which he then said
was all he intended to give them ; while he had not given,
and did not in liis iifetime give, to respondent anything but
the notes aforesaid, except some present of trifling value.
She therefore distinctly and expresely deuies the allegation
aforesaid.
By way of cross-bill Mrs. Mitchell alleges the advance-
ments to the complainants by the intestate as before stated,
and prays that they be brought into hotch-pot, etc.
She also states that the laws of Florida allow the widow
a year's support for herself and family out of an intestate's
estate ; also, that by those laws the widow ie entitled to one-
third of the personal estate absolutely as part of her dower ;
and that if it shall be ascertained that the intestate was
domiciled in Florida at the time of his death and the per-
gonal estate here is to be administered according to the laws
of Florida, she prays that the court wilt allow her year's
support and dower in the personalty as fixed by those
laws.
By an amendment to this cross bill, she states that being
aatifiiSod from proofs produced by contplainants on the
r\
SEPTEMBER TERM, 1879. 213
Mitchell vs. Word, gnardian, e( al.
hearing of an application for injunction, that the intestate
was domiciled in Florida at the time of his death, she
joins the complainants in alleofing that fact, and submits to
the court that the personal estate here must therefore be
administered according to the laws of that state. She de-
tails the laws of Florida upon the subject of her dower in
the personal estate, and prays the court to ascertain and set
apart the same to lier, an inventory of the personal estate
being set forth in the answer of the administrator.
Temporary injunctions were granted against the pro-
ceeding to set apart the year's support, and against the
proceeding to assess money in lieu of dower in the lands.
The latter injunction, however, had been by consent dis-
solved and the dower assessed before the trial. '
The case was tried at the March term, 1879, and the jury
rendered the following verdict :
" We, the jury, find and decree $600.00 for one year's
provision for the widow and the family ; and also we, the
jury, find the widow is entitled to one-third of the personal
property of the deceased, and that the following notes shall
be considered as part of the deceased's personal property.
One note on J. N. Whitner for the sum of $1,200.00, also
one note on Brantley for the sum of $3,500.00. And we
further decree that all moneys furnished the said widow by
the administrator shall be charged to her, except what she
has received on her land dowry."
Mrs. Mitchell moved for a new trial on the following
grounds, the statement of facts and rulings in which are
certified by the court below to be true :
1. That part of said verdict awarding six hundred dollars
for year's support, is against the strong and decided weight
of the evidence as to the proper amount which should be
allowed for that purpose.
2. The court erred in charging the jury, and in ruling on
the trial, that the widow of the intestate (the movant) was
not entitled to the year's support (out of the estate) as
allowed by the laws of this st^te, but that her right to
214 SUPREME COURT OF GEORGIA.
Mttchell ». Word, gnirdlBn, I al. ~
year's support waa such only as the laws of the state of
Florida allowed.
3. The coart erred in charging the jury that by the Uwb
of Florida the widow was allowed only a eufScient supply
of provisions for herself and her family including her chil-
dren and servants, for one year from the death of the intes-
tate or grant of administration on the estate.
4. And in charging that in this ci^uthe widow could not
have any allowance in lieu of the household goods anthor-
ized by the laws of Florida to be set apart to hor, nnlees it
appears from the evidence that she had been deprived by
any one of her right to occupy and enjoy thein as provided
by said laws of Florida.
5. That part of said verdict which provides that tlie notes
of J, N. Whitner and Brantley shall be considered as part
of the personal estate of the intestate, in csMmating the one-
third of said personal estate awarded to the movant (the
widow of the intestate), is contrary to law and to thecharge
of the com t on that subject, and is without any evidence
whatever to support it.
6. The court, after charging the jury that the laws of
Florida extended the widow's dower to one-third of the
personal property absolutely, besides her life estate in one-
third of tiie lands, further charged that this was an interest
cast upon the widow by operation of law, independently of
any contract of the parties, and could not be defeated by
any gift or provision made by the husband by deed or will,
unless sncli provieion was expressly in lieu of suchduwer,
and the widow had elected so to accept tJie same. That the
gift by the husband to the wife, in contemplation of death,
of certain promissory notes, expressed by his written in-
dorsements to be for her individual uhc and benefit, as part
of her interest in his estate, and as part provision for her,
would not defeat the widow's right to dower, unless the
jury believe from the evidence that what was said by the
parlies at the time of the transfer and delivery of the notes
shows that it was intended to bo expressly in lien of dower
in the personal estate.
SEPTEMBER TERM, 1879. 215
■^— ^^^^^^^ - ■ I I M ■ I J I - —
Mitchell vi. Word, guardian, et al.
The movant complains that the last clansc of said ehar<^e,
beginning with the word unless, was error, it hein^ incom-
petent, she submits, to prove by parol a provision in lieu of
dower ; and, further, there being no evidence on which to
base such charge.
7. Said verdict, so far as it applies to the dower in the
personalty, is imperfect and inco^mplete, in this that it does
not specify and set apart the particular items or articles of
personal property which shall constitute the movant's
dower in the personalty, and docs not specify the value of
the said notes required to be estimated as part of the per-
sonal estate in ascertaining said dower, and does not cover
the issue made by the pleadings on this subject.
8. It was distinctly admitted by counsel for the complain-
ants in the progress of tlie trials that they did not call upon
this defendant to account for said notes as an advancement,
and agreed with counsel for this defendant that the ques-
tion of advancements was not involved in the case. And
counsel for this defendant stated that not renrardins: the
question of advancements as pertinent to the ca^e they
should not introduce evidence of the advancements made
by the intestate to the complainants.
The movant, therefore, complains that the verdict in
eflEect requiring her to account for said notes as an advance-
ment was improper and illegal.
The evidence, apart from the answer of Mrs. Mitchell,
v.as confined mostly to the question of the yeai's support.
A schedule of the personal property in which the claimed
dower, was put in evidence.
C. D. Forsyth, the administrator, testified that when he
was appointed administrator, the entire estate here and in
Florida, was estimated by the complainants at $40,000.00.
The estJite here was appraised at $20,000.00, though from
sales made he thought it would fall short of tiiat 25 per
cent. The debts here will reach about $4,500.00, besides
expenses of administration, about $1,500.00.
Mrs. C. A. Mitchell testified that she married the in-
216 SUPREME COURT OF GEORGIA.
Mitchell t*. Word, gnirdian, il al.
testate in March, 1875, and aooo after went with him to
Flurida. Returned here in the euminer. Spent both sum-
inei'9 liere before his death, which was in November, 1876 ;
tlie balance of the time at iiia place on Lake Jesup in
Orange county, Florida. The house they lived in was a
nice one, containing ten rooms, and handsomely furnished,
suiTonnded by pleasant gionnds and an orange grove.
They lived well. Col. Mitchell furnished all they wanted.
Had good servants. Two minor children by a former hn&-
band lived with her all the time, and were supported by
Col. Mitchell as if his own. When Ool. M. died she came
back with his remains here, and has been living here ever
since.
She never applied for year's support in Florida, and has
received nothing from the Florida estate. Did not bring
with her any of the household goods. The Florida admin-
istrator took possession of the house and everything in it,
and told her she eonld not have anything. She has been
living in Rome ever since and has not proposed or o3ered
to occupy the house.
She had collected only $400.00 on the Brantley note.
Mr. Brantley has lately died. The B. F. Whitner note she
collected by givinga discount. J. N. Whitneris insolvent,
and she does not know whether the land for which )iis note
was given can be subjected to its payment or not. She
fears that she will never get anything on that note.
W. F. Ayer, J. W. RounsaviUe, R. T. Hargrove and J.
G. Dailey, all testified that they were commissi oners ap-
pointed by the ordinary to assess the year's support for Mrs.
Mitchell. They assessed $2,000.00, and now consider that
a rciteonable and proper amount. In making this allowance
they considered the amount of the estate, which they sup-
posed to be $40,000.00 (though some of them would make
no difference if the estate was $30,000.00); they also con-
sidered the value of one year's rent of stich a house as the
family occupied in Florida, furnished as it was; also the
faot that Mrs. H. bad two miDor children, and that Col.
SEPTEMBER TERM, 1879. 217
Mitchell V8. Worti, jiniardian, et ai,
Mitchell married her with this incumbrance ; and that this
iccnmbrance still existing, it was proper to be considered in
estimating what sum would be required to enable lier to
live in the same style she had lived before her husband's
death.
Some of them stated that the intestate was a close man in
money matters, but always lived well. Owned fine brick
residence before the war, and handsome furniture. Kept
a carriage, etc. Since the war and after the death of
his first wife he occupied a small room adjoining his law
office. Witness Hargrove was very intimate with him.
Just before he left for Florida, he told witness he had
given his children $10,000.00 apiece, and he intended to
live at his ease on what he had left. Witness knows of his
buying and taking with him a good supply of fine linen,
table cutlery, etc.
R. S. Norton and J. 0. Rawlins, witnesses for complain-
ants, thought $600.00 or $800.00 a proper sum for a year's
support. Board at Rawlin's hotel, including lodging and
attendance of servants, would cost $25.00 to $30.00 per
month. Wardlaw estimated $500.00 to $600.00, and Byrd
$600.00, enough for year's support.
T. J. Word testified, he is a son-in-law of intestate. He
was a close, economical man, too much so, though he did
furnish his family with ample supplies and lived well at
home. Witness thinks $600.00 ample for year's support.
L. T. Mitchell, complainant, lived in Florida when his
father died. The house his father lived in there was a
framed building with six rooms below and four attic rooms
with dormer-windows above. The furniture was cheap —
white pine painted nicely. The house was three-quarters of
a mile from a landing on Lake Jesup, in a town his father
had laid off called Tuscawilla. No other houses there then.
One or two built since. A store and one or two other
houses were at the landing. No other settlement nearer
than twelve miles except by the river or lake. His father
always close and saving, never extravagant.
r
!
218
SUPREME COURT OF GEORGIA.
Mitchell V9. Word, guardian, et cU.
But two questions were insisted on in the arajument here.
First, whether the widow of the intestate was entitled to
her year's support out of his estate in accordance with the
law of Georgia, or in accordance with the law of Florida,
the place of his domicil at the time of his death ? Second,
was the widow of the intestate, under the law of Florida,
entitled to dower in the personal estate of the intestate, and
if so, did the acceptance of the notes, in the record men-
tioned, by her in the lifetime of her husband, bar her right
to claim dower in his personal estate after his death?
1. As to the first question, it is trne that the year's
support of the widow of the intestate by the statute law of
this state, is declared to be a part of the necessary expenses
of administration, but the amount thereof is to be ascer-
tained by what the law of Florida allowed her for a year's
support in that state at the time of the intestate's death.
The law of this state regulates the amount which the wid-
ows of deceased intestates shall receive for their year's sup-
port when the deceased intestate was domiciled in this state
at the time of his death, but not the widows of deceased in-
testates who were domiciled in other states at the time of
their death, although the widows of such intestates may re-
move into this state after the death of their intestate hus-
bands. By comity, the courts of this state will allow a
widow to sue here for her year's support, especially when
the intestate owed no debts in the state in which he was
domiciled at the time of his death, but the amount of her
recovery will be regulated by the law of the state in which
her deceased husband was domiciled at the time of his
<leath, and not by the law of this state. There was no error
in the charge of the court in relation to this question in the
case.
2. By the statute law of Florida, the widow of the intes-
tate was entitled to dower in his pereonal estate, as well as
in his real estate, and the court so charged, and we find no
material error in that charge of which the widow of the in-
testate can justly complain, in view of the evidence in the
'^^^ord.
SEPTEMBER TERM, 1879. 219
Iditchell vs. Word, guardian, el al.
3. The jury found by their verdict that the widow was
entitled to one-third of the personal property of the de-
ceased, and that the two notes specified therein was a part
of the deceased's personal property. The jury did not find
by tJieir verdict that the widow was barred of her right to
dower in the intestate's personal property, but on the con-
trary, found that she was entitled to the same, and that the
two notes which she held was part payment thereof, inas-
much as they found the same to be a part of the intestate's
personal estate. The jury did not find by their verdict that
the two notes was aU that the widow was entitled to as
dower out of the personal estate of her deceased husband
(probably the unsettled condition of the estate did not au-
thorize them to do that), but they did find that the two notes
named in their verdict was a part of the deceased's personal
property, and that she was entitled to that much of it as
part of her dower, as provided by the Florida statute under
which she claimed it. The verdict, as we construe it, gives
the widow, unconditionally, the two notes named therein
as a part of her dower in the intestate's personal estate ; how
much more she may be entitled to, if any, on the final set-
tlement of the estate, does not appear. There was no error
in overruling the motion for a new trial.
Let the judgment of the court below be aftirmed.
Bleckley, Justice, concurred, but furnished no written
opinion.
Jackson, Justice, dissented upon the ground that the
year's support of the family under the law of Georgia-
Code, §2571 — is a part of the expenses of administration,
and must therefore be regulated by the law of the fornm
where administration is had. Therefore, if administration
be had in Georgia on the estate of a decedent who died in
Florida, the amount of such support should be regulated by
the law of the former state and not of the latter.
Expenses of administration in Florida have nothing to
14
#41
320 SUPREME COURT OF GEORGIA.
Milchcll (>. Waid. gtiaidtiD. tl al.
(Jo witli expenses of admiiiisCratioD in Georgia, What the
fees of the ordinary are by the laws of Florida cannot reg-
ulate the fees of tliat officer in Georgia, nor can any other
expenses which would be incurred by administration thert-
on property there and be fixed by their law, control the
expeniies here on property here. If, therefore, the year's
support be expenses of admii<ietration, and our statnte so
declares in plain words, Georgia law ninst regulate as well
the value and amount of these expenses as of any other
expenses of administration.
The ordinary or judge of probate of Florida, if his claim
were interposed here for fees out of this property adminis-
tered here, would not be entitled thereto. His claim might
come i[i as a debt, but not as costs of administration. So
Mrs. Mitchell's claim for a year's support, if it rested o»
Florida law, would give her no preference here— certainly
none over everything in the way of debts and liens; yet it
was set apart in preference to all other claims here. Why J
Because it ranked under onr law as expenses of administer-
ing the property here.
Support for the family is not dependent on the place
where decedent died, or where he was domiciled when he
died, nnder our statute of distribution; but goes to the
widow as matter of right and as costs of administration if
she lived in Georgia when the administration of the prop-
erty is had.
This widow came with her husband's remains here and
livee here, and her year's snpport must be taken out of t!ie
property administered here before its net proceeds can be
otherwise diiiposed of. It is a claim which ranks with fees
of officers and costs of administration ; tt ranks according
to the laws of administration here; and its amount is as
nmcb fixed by that law as any other fee or costs of admin-
istration. Jiesides, there is no proof that she has received
iitiything from the property in Florida ; and as her domicil
has been in Gcoigia ever since her husband's death, she
Hill uot be sent there for rent of homestead or year's sup-
SEPTEMBER TERM, 1879. 221
McCanley et al. vs. Gord>>n.
port, or furniture, or anght else that she mi^ifht sue for and
possibly recover there. Living in Georgia before she married
the decedent and at tlie time of tfie inarri:^ge, and having
resided with her husband in Georgia part of every year of
the marriage, it is not right to remit lier to Florida for any
part of her year's support, or to limit it by the narrower
provisions of the laws of Florida — nor is it law.
Unquestionably the law is that the personal estate in
Georgia will be distributed according to the laws of Florida,
after the expenses of administration in Georgia are de-
ducted, because the domicil of decedent was in Florida ;
but these expenses must be first deducted, and among these
expenses our statute includes the year's support of the
fan)ily of the decedent. Hence the law of the case, as he
understood it, accorded with the right ; and while distrust-
ful of his judgment in view of differing with his colleagues
as well as the court below, to his own mind the point seemed
80 clear that his duty required him to express his dissent.
McCauley et al. vs. Gordon.
If, on the purchase of partnership property, a promissory note due at
u future day be given for the price and made payable to the order
of one of the partners as an individual, the partnership having an
established partnership name different from that of the payee of
the note, the note (though partnership property) cannot be indorsed
by another one of the partners in the name of the payee so as to pass
the legal title, with the incidents of negotiable paper transferred
before due, without more authority than that which results by oper-
ation of law from the partnership relation. An alteration of such
a note by inserting therein the wo^ds *'or bearer," is a material
alteration.
Partnership. Negotiable instruments. Indorsement.
Alteration. Before Judge McCutchen. Whitfield Supe-
rior Court. April Term, 1879.
Gordon brought suit in the justice's court of the 1049th
';
222
SUPREME COURT OF GEORGIA.
McCauley et al. vs. Qordon.
district, G. M., against McCauley and Ward, on the follow-
ing note :
"September 1st, 1877.
"Ninety days after date we promise to pay to the order of J. C.
Williams, or bearer, one hundred dollars, value received.
Test, W. L. Headrick. C. C. McCauley.
W. Ward."
Indorsed, "J. C. Williams."
The defendants pleaded under oath, as follows : 1. Non
est factum. 2. They purchased of the firm of Williams
Bros, a sorghum mill and evaporator, which was warranted
by J. C. Williams to be of good quality, he representing
that it would grind and evaporate at the rate of sixty gal-
lons a day. The representations have proved false, and the
warranty has failed, as the mill and evaporator will not do
half the work stated. Defendants intending to reserve the
right to refuse to pay for the mill, etc., the price agreed
upon if the warranty faikjd, or the representations proved
false, declined to sign a note negotiable at all, or one paya-
ble to bearer, and signed the note sued on without the
words "or bearer," which have been since fraudulently inter-
lined in said note by J. C. Williams, or under Jiis direction.
This alteration is material, and voids the note as to these
defendants. It was made by the hol.der fraudulently, with-
out their knowledge or consent, and they would not have
made a note with such words contained therein. 8. The
note never was indorsed or assigned by J. C. Williams, the
payee, or by his authority or consent, and the indorsement
thereon is fraudulent, and a forgery.
The magistrate rendered judgment for the plaintiff and
the defendants appealed to the superior court.
The evidence, so far as material, disclosed that J. C. Wil-
liams, G. W. Williams and B. A. Williams were partners,
using the firiu name of Williams Bros., in the manufacture
and sale of sorghum mills and evaporators, and sold one of
these machines to defendants. That the latter refused to
sign a note therefor payable to the order of J. C. Williams
"or bearer," and had a second note written with all nego-
SEPTEMBER TERM, 1879. 223
McCftuley ft al. vs. Gordon.
liable words, as they supposed, omitted, which is the one
now sued on. They offered to show that they did not know
that even the words "to the order of" were in the note
bifi^ned, but this evidence was excluded by the court.
The evidence also showed that the name of J. C. Wil-
liams was indorsed on the note in the writing of G. W.
Williams, without the knowledge or consent of the former,
and that this was done before the interlineation of the
words "or bearer." Also, that these words were interlined
witliout the knowledge or consent Of the makers.
The court charged, in substance, as follows : If the Wil-
liamses were partners, and the property for wiiich the note
was given belonged to the firm, and not to J. C. Williams
individually, then either of the partners could sell it, and
either of them would be authorized to indorse the name of
the payee, and could do this without his assent or knowl-
edge, and the effect would be to confer upon the holder the
legal title. If George W. Williams had authority as partner
to niiike the indorsement, and had written the name of J.
C Williams across the note before the words "or bearer"
were inserted, then the insertion of such words- was im-
material inasmuch as the note, by the indoi^ement, was in
effect payable to bearer.
The jury found for the plaintiff.
The defendants excepted to the exclusion of defend-
ants' testimony of ignorance of the fact of the words "to
the order of" being in the note, and to the instructions to
the jury. Error was assigned accordingly.
W. K. MoouE, by brief, for plaintiffs in error, cited Story
on Prom. Notes, §§120-125; Chit, on Bills, 226; 30 6a,,
130 ; 24: Wend., 374 ; 19 John., 391.
Johnson & McCamy, for defendants, cited Code, §§1904,
1909, 2785, 2852; 2 Par. on Con., 226, n. 5; 15 Pick., 239;
20 Vermont, 219; 3 Ohio, 445; Story on Part., §142; 1
Denio, 472; 8 Barn. & Cress., 427.
224
SUPREME COURT OF .GEORGIA.
McCauley et cU. w. Gordon.
Blecklky, Justice.
There can be no doubt that to tamper with a promissory
note so far as to insert in it the words "or bearer," is grossly
improper. It verges on forgery. The introduction of such
words is a material alteration, for they go to modify the
manner of negotiating the instrument. Dudley li.^ 243.
Without them, or words of similar import, the instrument
is negotiable by indorsement only ; with them, it is nego-
tiably by bare delivery as well as by indorsement. It is
said they were immaterial in the present case for the reason
that the note was indorsed in blank before their insertion,
and thereby the note had already become negotiable by de-
livery, the effect of indorsement in blank being to render
it payable to any bearer. But the paj'ee did not indorse,
and the person who did indorse, though a partner of the
payee, did not indorse in the partnert^hip name or in his
own name, but in the name of the payee ; and this he did
without any authority further than the general implied au-
thority of the partnership relation. The partnership had
an established partnership name, which was quite different
from the name 'of the individual partner to whom the note
was payable. The agency of a partner to sign for the part-
nership is generally restricted to signing in the established
partnership name, where the partnership has such a name.
Let it be conceded that the note was partnership property,
and that the partner who transferred it had a right to trans-
fer it, we think that, without some special authority from
the payee, he could not indorse it in the name of the latter,
and put it afloat with all the incidents of negotiable paper
transferred before due : and if he could not do this, the
words ^"or bearer," had they been genuine, would or might
have varied the rights of the holder, and made these rights
more comprehensive ; and whatever would or might have
had that effect cannot be treated as immaterial. There k a
Bg))lic policy to be subserved in guarding the purity and
»rity of negotiable paper, and neither surreptitious in-
SEPTEMBER TERM, 1879. 225
Burr A Ca vs. The City of Atlanta.
tcrpolatious in the body of the instrument, nor the indorse-
ment by one man with the name of another, ought to be
eoantenanced as a strictly commercial transaction in. a
doubtful case. On the face of the note is nothing whatever
to indicate the connection of any partnership with it ; and
the operation of the indorsement in the name of the payee
would be, prima facie, to render him, and him alone, lia-
ble upon the contract of indorsement. All interest of the
partnership in the transaction depends upon evidence ex-
trinsic of the note and of the indorsement, and this being
so, the words "or bearer" have a material bearing upon the
measure of evidence requisite to make a case for recovery
by the holder against even the makers. As the note was
not in fact indorsed by the payee, it is easy to see that the
holder would be better off with the words "or bearer" in
the terms of the instrument than if they were not there,
since the want of them would place upon him the burden
of proving that the indorsement was made with the payee's
authority, the plea putting the genuineness of the indorse-
ment in issue. In any and every view of the matter, the
alteration was material, and the court erred in the instruc-
tions given to the jury.
Judgment reversed.
Burr & Company vs. The Crrv of Atlanta.
[Vabhib, Chief Jostice, befag engaged in presiding over the senate organized as a
coart of impeachment, did not sit In this case.]
1. Merchants who ship bacon and corn from St. Louis to Atlanta, to an
agent in Atlanta, who sells the goods so shipped by going about the
city to engage it, and then delivering it from the cars or freight
depot, and who has no store or warehouse, or other place of business
in Atlanta, are, by their said agent, itinerant traders, and are liable
to the city of Atlanta for taxes imposed upon that occupation or
business
2. All other points in respect to constitutional objections to the ordi-
nance imposing the tax are covered by the case of Davis vs. The City
of Macon, decided at this term.
226 SUPREME COURT OF GEORGIA.
BarriftCo.n.TheCitfof Allanu.
Tax. Municipal corporations. Constitutional law. Be-
fore Jndffo IIiLLYER, Fulton Superior Conrt. March
Term, 187y.
Burr & Co. 800ghl to enjoin the City of Atlanta from
collecting from them a tax as itinerant traders, under the
following ordinance :
"On eBch (100 W of ibe amount of Bales of goods, wnres. morchan-
dise. produce. Eliingles, lumbur, nnd all olhei articles sold by itineraDl
tmtlers, including lliose wlio sliip llicir produce, goods, wares, etc.,
into the cily and sell tbe same either from the cars or dei>ots or go
around the cily and sell the same by sample, tbere shall be levied a tux
of $I.SO (excepllDg Iboao wbo rnise tbeir produce in the country adja-
Complainants alleged the following facts: They arc
provision dtalers in St. Louis. About April 1, 1879,
they Bent one Sliarp to Atlanta to sell to the merchants by
the car-load corn and meat. He located at the Markham
HoHpe, a public hotel. Complainants shipped car-loads of
corn and meat to him. and he sold them from the cars to
the merchants, — some of them came to the cars and bought
withont solicitation ; others he solicited at their places of
linsincss and elsewhere. He did not carry around any of
the goods nor sanijiles thereof. For two car loads he did
not find a market, and stored them with riisident merchants.
One has been sold, the other has been levied on under this
tax ^. fa. They deny being itinerant traders, and claim
tiiat the ordinance is discriminating and unconstitutional.
Defendant's answer denied that Sharp made any sales at
Ihe Markham House, but alleged that he sold at the depot
and on the streets to merchants and others; also that he
sold in towns adjacent to Atlanta, ae well as in that city.
The cliHUcellor refused the injunction, and complainants
I^^^HI bu
There was some question as to the amount of sales, etc.,
but it is not material here.
MiNA-rr & HowKLL, for plaintiffs in error.
SEPTEMBER TERM, 1879. 227
Borr & Co. vs. The City of Atlanta.
W. T. Newman, for defendant.
Jackson, Justice
Tlie plaintiffs in error applied for an injunction to re-
strain the City of Atlanta from collecting a tax imposed
upon them as itinerant traders nndcr the 12th section of
the tax ordinance of the cit}' for the year 1878, ending
30th of June, 1879. The chancellor refused the injunc-
tion, and they excepted.
The 31st section of the acts of ircorporation confers on
the city the power to levy and collect such tax from itiner-
ant traders who by themselves or others sell any goods,
wares or merchandise in the city, as to them shall seem
proper; and therefore there can be no doubt of the grant
of power to levy the tax, if the complainants be itinerant
traders, and be not protected by some other law.
The facts make them, we think, itinerant traders in the
city of Atlanta. I'hcy have no place of business here — no
store or warehouse — but they ship corn and meat by the
car-load to an agent here, who goes about the city and en-
gages to deliver the meat and corn from the car or depot
to buyers in the city. They would seem to be itinerant,
whether we regard the principals, who are a firm in St.
Louis, and journey a long way with their goods before it is
sold, or the agent here who travels over the city to sell the
goods to any who may buy. This case is clearly distin-
guishable from Gould i^d Co. vs. City of Atlanta., 55 Ga.^
678. They, Gould & Co., were not itinerant traders in any
sense of tliese words — whether restricted to peddlers or to
traders who journey about to sell in a larger sense than our
ordinary idea of a peddler. They rented a house in the
city, and there they sold and delivered their goods. But
the complainants in the present ca'?e have no place of busi-
ness. Their agent has none. The cars and the depot, open
to all the public, is their place of deposit, and from this
point their agent goes to and fro over the city, and sells to
SUPREME COURT OF GEORGIA.
wlnjiii lie can. He is a man who goes abont the city to
tradL-, ;ind does trade wberever he can make a bargain, and
then delivers the qintntity bought. In the large sense in
which the word peddler is useil in the opinion in the case in
the 55 Oa., 678, he poddies this corn and bacon over this
city^aiid is a peddler.
2. But it is said that becau?e the ordinance excepts from
the i.peration of this tax on itinerant traders those who raise
their produce in the eonntry adjacent, it coTiflicts with the
unifoiitiity and ad valorem clause of the constitution of
1S77. Tlie exceplieii, we suppose, was intended to apply
not tu real itinerant traders, in the true sense of th^se words,
but to fanners who brought in on wagons whut they raised
at home, and sold it out — who^e business was not that either
of a peddler or itinerant trader in any sense, but who were
farmers, and came to town occasionally to sell what they
made at home.
It seems to us that this exception merely separates more
clearly from the claas of itinerant traders people who never
really belonged to that class, and is not repugnant to that
clause of our constiintion. Nor does it conflict with the
rights of citizens of other states.
Indeed, wc sec nothing in the exception, as it stands, to
conflict with anybody's right-. People who bring produce
here from the country are not peddlers or itinerant traders,
but farmers; and practically nobody will ever inquire
whether the wagon came from DuKalb or from Greene,
from Cobb county, Georgia, or from the state of Tennessee.
Adjacent country are big words when used in an Atlanta
ordinance. In the mind of our city fathers, the suburbs of
Atlanta embrace many villages, and the cnuntri/ adjacent
stretches indefinitely, and every farmer who wagons here
what he maizes at home from the soil need fear nothing
from any discrimination against him in favor of those who
live nearer to the city.
The tax is on business — the business of an itinerant
trader ; it embraces all such traders — whether by theoiselves
SEPTEMBER TERM, 1879. 229
The Mayor and Aldermen of Savannah vs. Brown.
or airents trading — whether Georgians or Missoiirians — and
the tax is uniform on all and exempts none.
The case is covered i)y that of Davis vs. C^ty of Macon^
decided at this term — however, and argument about it is
superfluous.
Judirment affirmed.
TiiK Mayor and Aldermen of Savannah vs. Brown.
1. A muaicipal corporation may enter an appeal in forma pauperis
through its chief executive officer.
2. The m;iyoi' of Savannah can only try and dismiss a policeman in
his judicial capacity as mayor, and an appeal to the mayor and
aldermen in council will lie from his decision. The charge of the
court to the contrary was erri>r.
Appeal. Municipal corporations. Officers. City of
Savannah. Before Judge Tompkins. Chatham Superior
Court. OctpberTerm, 1878.
•
To the report contained in the decision, it is only neces-
sary to add the following: Browii was a policeman in Sa-
vannah. He was arrested by order of the chief of police,
who preferred charge- against him to the mayor. The lat-
ter heard the case and dismissed Brown from the force.
Brown sought to appeal to the mayor and aldermen in
council. The mayor refu.sed to recognize his right to ap-
peal. Brown then sued for his wages.
The law in regard to the power of the mayor will appear
from the Code of Georgia, §,§4858, 4880, and the following
citations from the briefs of counsel (City Code, pp. 369-
374):
Ordinance 1860— City Code, 369 (2):
*' That from and after the aforesaid first of February next, the po-
lice force shall consist of fifty-six privates, who shall be appointed by
the mayor, subject to the approval of the council, for the term of three
years from the date of their appointment, unless removed therefrom
2311 SUPREME COURT OF CIEORGIA.
The May.r and Alderman of S«viinnali m. Brown,
/or iii(ffleieneg OT improper conduct, and wboae pay Bbalt be £000.00 per
OMiiKincc 1860— City Code, STl (13):
"Tli'^ i'()tiipmeat. disposition and control and arrangumeut of the
police fun e sliiill be entrusted I'l the cliii;f of police, subject to the
mayur. iiikI to sucli rules, regulations and ordinnnces as mny, from
time to lime, be made by the mayor and aldermen of the city."
Saitut i>n]iiiaTice, p. 374 (li3) :
■' If iiTi V member of tbo poliee force shall receive a bribe for Uber-
attni; anv {icrson duly arrested for violation of the city ordinaaceH,
or tbo hiw^of Ibealate. or if he shall be i^uilty of vio'eot. injurious
or impnipi'r cnuilucl whiUt on duly, to any person, or if be shall in any
manner misbehave in or neglect bis duties, the offender, if a privale>
may beHnwi or dismissed, or Iwlh. at tbe discretion ;o[ the mayor or
acting mriyor, and his bond may also be put in suit, cuse of an
offlcer, a ri^port required to be made to council). And if anv police-
man shall, without salisfaclory cause, abandon bis station or leave his
division Ill-fore the appointed hour, or if he shall neglect to Inform
against any person who may, within his knowleilge. violate any of tbe
ordinances of Ihc city, he may. upon conviction, hejintd in a sum not
exceeding ten dollars, or be suspended or dismissed, at the discretion
of tbe mayor or acting mayor."
OrdiriHiiee 1860— City Code, 374 ('24) :
" The mayor, as the bead of the police department, shall have and
cKcrcise a general superintendence over the members of the police
foree. and mny at any time appoint tbe mode and places in which Ibc
policeniuTi shall be stationed, by written orders," etc,
W. D. IIakdks, for plaintiffs iti en-or.
RuFcs E. Lkster, for defendant,
Warneb, '''hief Justice.
Brown, the plaintiff, sued 'lie defendants in a justice cooit
for his wafifcs as a policeman, and an appeal was taken there-
from to tlio superior court. On the trjal of the ease in
the latter coiirt, the jury, under the charge of tlie
cotirt, found a verdict in favor of the plaintiff. A motion
was niiiile for a new trial on the grounds therein elated,
which «as overruled, and the defendants exce|ited.
1. The plaintiff also filed a bill of cxccptions^entf^te lite
SEPTEMBER TEEM. J 879. 231
The Mayor and ^\ld( rraen of Savannah r^. Brown.
to the decision of the court in refusing to dismiss the ap-
peal upon his motion on the ground that the defendants, as a
nmnicipal corporation, could not enter an appeal by filing a
pauper affidavit sworn to by its mayor. The mayor was the
executive officer of the corporation, and as such, it was com-
petent for him to make and file the pauper affidavit in its
behalf for the purpose of obtaining the appeal, and there
was no error in the refusal of che court to dismiss it.
2. The court charged the jury, amongst other things, "that
the mayor of the city of Savannah could dismiss a police-
man from the force only when he, the mayor, Was sitting as
the presiding officer of the police court. That if he had
tried Brown as such presiding officer, he had the power to
dismiss him; but if he had tried him in his capacity as
mayor onl}', his action was void and Brown never had been
legally dismissed. That even if he had discharged him
while in the capacity of presiding officer of the police court,
the jury could inquire into the cause of discharge, and if
they found it insufficient, could give the plaintiff his wages.
That they had heard the evidence, and must determine in
what capacity the mayor was acting when he discharged
plaintiff."
This charge of the court was error, in view of the evi-
dence in the record and the law applicable thereto. The
mayor had no jurisdiction, under the law and ordinances of
the city, to hear and determine the question of the discharge
of the plaintiff as a policeman only in his judicial capacity
as mayor (no matter in what capacity he may have consid-
ered himself to have been acting), and the court should have
so instructed the jury, and not have left it to the jury to
decide in what capacity the mayor was acting when he dis-
charged the plaintiff as a policeman. There is no doubt
that the mayor of the city of Savannah, in his judicial
capacity as such mayor, under the law and ordinances of the
city, did have the power and authority to dismiss the plain-
tiff as a policeman, and there is just as little doubt that the
plaintiff had the legal right to have appealed from the de-
2:i2 SUPREME COURT OF GEORGIA.
BHlee * Co. M. Fonylb, ■diDinUUaliir.
cisioD of the mayor to the mayor and aldermen of the eity
in council assembled, which appeal, as appears from tlie
cviiJeace in the record, was refused by the mayor on the
ground that no appeal lay from his decision. Tiie pliiri
rcmody for the plLiintiff was then to have appliu'l for a
m.'in'iamiiSf or certiorari, to correct that error of tlie iii;iyor,
and to have enforced his legal riglits in the prcmirius, but
failitiij to have done ao, tha question arises wliiMisr tlio
pliiiiiCiff is not now concluded by that jadifjunt of the
mayor dismissing him as policeman from recovering any
wages as sncli subsequent to his discharge, Thia view of
the question was excluded by the charge of the conrt, and
11 new trial must be awarded.
Let the judgment of the eoart below be reversed.
Bates & Company vs. Forsyth, admiuistmior.
Wlierc the answer of ihe garaisbee denied indetitcdness lit ibe ikfend
ant, nod wiis traversed by ao allegHlion of indebtfdne— in lln: sum
offuOO.UO, aud tue Irnvcrec was amended set ling uul ii>i:ile of fncts
wbereby oiber indebiedaess was substantially bbiiwn. iliougbon*
complicated Btale of facts, and tbe amendment w.ih di'imirred Io,
nnd Ibe wbole traverse was stricken, and Jud(;meiil roiitltri'd for
Ibe garuisbce:
Iftl'l. ibat tbe court erred.
(.Tarnishment. Practice in the Superior Court. Before
Judge Undekwood. Fioyd Superior Conrt. M:irchTeriii,
IbTU.
The case below grew out of a garnishment in Kluyd so-
perior court. In a suit pending in said conrt in lavor of
Eiitee & Co. w«. John Harkina, the plaintiffs, on J n no 23,
1ST5, sued out a garnishment, which was servcii un D. R.
Mitchell, oil June 2S, 1875. Mitchell, at the uex i i;rm. tiled
an answer denying any indebtedness to Harkins. '1 his :in-
swer tbe phiutiffs traversed, alleging that tliu guruiBhee
' SEPTEMBER TERM, 1879.
1. Foreyth. Bdmi
owed defendant ^500.00, and subsequently amended their
traverse l»y allo^^inp aa follows; Tliat Mitcliell is indebted
to IlarkiiiB on tlie following account, besides otiiers, to-wit :
Od April 1, 1871, the said Mitchell being the owner of
certain^. y<M. from Gordon enperior court on which was
due and collectable about the autn of $:J2o.OO, and being at
the same time indebted to the firm of Colclongh, llarkins
& Glover, of Uonie, Ga., something more than the said
sum, did, on that day, in part payment of the said indebted-
ness, make the following assignment of said ^. /'««.:
"I do hereby transfer to Colclough, Hsrkins & GIdvct all myrigbt,
title and ioiertsi iu (lie above Jf.fa»., witLoiil nuy liubiliiy on uiy part
wfaatever, tbcy piiyiog aa<l settling all fccsund cci»ts<liii;»nsiii<l jl./oi.
April 1, ISTl. U. Jt. MifciiKLL."
At that time the anidji./a.^. were in tho hands of Warren
Akin ae attorney for said Mitchell, for collection; it
was represented to said transferees by Mitchell that there
was in the hands of the sheriff of Gordon county a fund
out of which iaid Ji. fas., being among the oldest, would be
paid at least the ainoiiiit of his indebtedness to said firm.
And Ihe ptaintitfs itIiow that the said Akin, as attoruey as
aforesaid, did about that lime receive on said Ji. fas. their
■lure of eaid fund, to-wit : $219.00, besides fo.-,ti^ ; but that
the Fuid Akin wliun culled upon by the transferees for said
fund, less his fee for culletiting the same, refnwed to pay over
ititypflrt of said f'jnd, claiming that the said Mitchell was due
bim Dioru than the amount thereof for professional Fervices
ID other cases, and appropriating the same to such fees.
The said transferees thun came back upon said Mitchell for
eud umount, when hu directed them to bring suit against
Akin fcir saiil fund, denying hie indebtedness to Akin for
Mher fees, and the rij^lit of Akin to retain or appropriate
«tid fund.
tn pursuance of this direction of Mitchell, the transferees
did bring snit in Bartow superior court afxainst Akin for
■wid fund, and upon thu trial thereof the right of said Akin
to reuin it was sustained, and the transferees were cast in
234 SUPREME COURT OF GEORGIA.
Bates & Co. ts. Forsyth, adminiiitrator.
the cost, to-wit : $13.00, bet^ides their attorney's fees in the
matter, to-wit: $25.00. Wherefore a ri^ht of action ac-
crued to said transferees on tlie day of said assignment,
to-wit, the 1st day of April, 1871, to have and recover of
said Mitchell the said sum of $219.00, collected by his said
attorney, less $20.00 fee of said attorney for collecting
the same; and on the day of the termination of said suit
against the said Akin, to-wit, January 1, 1875, to recover of
Mitchell the said costs and attorney's fees, to-wit, $38.00.
Which said claims and demands of Colclough, Harkins &
Glover against said Mitchell were, on the dissolution of
said firm, assigned to, and became the property of, the said
John Harkins. Wherefore they pray judgment, etc.
By a further amendment plaintiffb alleged that the cau?e
of action in favor of said firm against said Mitchell accrued
at the termination of the suit brought against said Akin,
instead of the date of the assignment of the Ji. fas. And
further, that if the cause of action accrued prior to said
date, then the conduct of Mitchell amounted to a fraud by
which the firm were prevented from bringing suit against
him until the termination of said suit against Akin. And
the plaintiffs further say .that the claim against Mitchell
became the property of Harkins by assignment long before
the service of the summons of garnishment upcm Mitchell.
Mitchell having died, his administrator, Forsyth, was
made a party.
On demurrer, the court struck the traverse and ordered
the garnishee to be discharged. Plaintiffs excepted.
Wright & Fkatherston, for plaintiffs in error.
Forsyth & Hoskinson ; D. S. Printcp, for defendant.
Jackson, Justice.
We are all of opinion that the court erred in striking the
entire traverse of the plaintiffs. It appears to have been
two-fold in its specifications denying the truth of the gar-
k
SEPTEMBER TERM, 1879. 235
Bates A Co vs. Foreyth, admiuistrator.
iiiehee'd answer. First, it alleged indebtedness of garnishee
to defendant to the amount of five hundred dollars. Upon
this allegation it is clear that the plaintiff had the right to
go to the jury and prove this indebtedness, if he could.
Secondly, it was alleged in amendments to the traverse that
Harkins, the defendant, had a clain) on Mitchell arising out
of a transfer which Mitchell made of certain Jl. fas. from
Gordon superior court in the hands of Warren Akin for
collection — Mitchell representing that there was a fund in
the hands of the sheriff to pay the^./a*. This transfer
was made without recourse on Mitchell to Colclough, Har-
kins cfe Glover, who, under instructions from Mitchell, sued
Akin, who had collected and appropriated the money for
fees due him from Mitchell, and they failed to recover.
Before service of garniahment on Mitchell and on the dis-
solution of that firm they assigned their claim on Mitchell
to Harkins. And it is this claim which makes the second
traverse of indebtedness. On demurrer, the superior court
held that this claim is not assignable and that it is barred
by the statute of limitations.
My brethren think that the court erred in so holding, on
tlie ground that Mitchell having instructed Colclough, Har-
king & Glover to sue Akin, is estopped to set up the statute
of limitations though the transfer of the executions and
the representations of Mitchell were made in April, 1871,
and the garnishment served in June, 1875, and that the
real claim was assignable, being a chose in action arising
^a? contractu. They hold that Akin paid a debt which
Mitchell owed him out of this fund which was due on the
J?, fa^, he transferred, and that Mitchell thus received
through Akin, Colclough, Harkins & Glover's money, and
an action for money had and received lies for it, and was
assigned legally, so far as the traverse sets it out; and that
thus Mitchell owes Harkins the monev.
I rather agree with the court below myself. I think
that no action at all could be brought on the transfer, be-
cause its express terms are " without any liability whatever"
15
236
SUPREME COURT OF GEORGIA.
Lowrye t'« CAndler, executor.
'»
■■} '
on the part of Mitchell ; and that tlie only right of action
which could arise must spring from the faUe representations
of Mitchell in respect to the money which was in the
sheriff's liands to pay the fi. fas, — that is, an action of de-
ceit, M'liich being a tort is not assignable, the assignability
of choses in action being confined to such as ari^e out of
contract. Code, §§2958, 2244.
Moreover, it appears to me that the riglit of action ac-
crued when the party discovered the fraud and deceit, and
when that time was is nowhere alleged. 1 am not prepared
to say, therefore, that, taking the case made by the pleader
most strongly against him, the plaintiffs are not barred.
Besides, we all think, I believe, that such an assignment
ought to be in writing. It is not alleged that it is assigned
in writing ; but as there was no special demurrer, on a gen-
eral demurrer the traverse on this ground perhaps ought
not to have been dismissed.
Of course this ruling will send the whole traverse to the
jury, and the case must be passed upon by them on its
merits. When the whole of the facts are brought out,
clearer light may shine upon the case, and the court below
and this court see the law of it more satisfactorily on the
real point, the amended traverse; which was, we learn out-
side of the record, the point really ruled below on the
demurrer.
Judgment reversed.
LowRYs V8. Candler, executor.
Ad agent not a party to a suit is a competent witness to show his
agt-ncy. not disclosed at tlie time of ibe transaction in CMmtroversy,
altliongl) liis principal may be dead, and altiiougli Ibe effect of
establishing tbe agency may be to make the estate liable instead of
the agent individually.
Witness. Evidence. Principal and agent. Before Judge
UiLLYER. Fulton Superior Court. September Term, 1878.
SEPTEMBER TERM, 1879. 237
Lowrya m Candler, executor.
Reported in the decision.
E. N. Broylks; B. F. Abboit, for plaintiff in error.
Candler & Thomson, for defendant.
VVARNEBt, Cliief Justice.
The plaintiffs brought their action against the defendant
to recover damages in consequence of the alleged sale by
the defendant to them of a bond purporting to be a bond
of the state of Georgia for $1,000.00, representing the
same to be a good, true and valid bond of said state^ whereas
said bond was a bad, spurious bond, and of no value what-
ever. On the trial of the case the jury found a verdict for
the defendant. A motion was made for a new trial on the
grounds therein stated, which was overruled, and the plain-
tiffs excepted.
It appears from the evidence in the record, that the bond
was sold and delivered to the plaintiffs by one McC.'islia
as his own property so far as was known or disclosed at the
time of the sale thereof, and that the money, $^50.00, was
paid to him by the plaintiffs therefor, and that sometime
after the sale one of the plaintiffs went to McCa^slin and
said to him, ^^he would have to come back on him for that
bond, that he had failed to sell it and that it was an illegal
bond." The plaintiffs then proposed to prove by McCaslin
" that I sold for T. W. J. Ilill what purported to be a
bond of the state of Georgia. Hill came to my store and
told me that he had a state of Georgia gold bond and de-
sired mo to take the bond to W. M. and R. J. Lowry, and see
what they would give for it, and for me to let him know what
they would give for the bond, and not to tell them whose it
was. I reported back to Hill and he told me to take the bond
over to the Lowrys again and sell it to them, which I did,
receiving for the bond $850.00 in currency, which amount
I handed to said Hill at this time. Hill said nothing more
t(i me respecting said bond. I gave the money to T. W.
238
SUPREME COURT OF GEORGIA.
LowryB v». Candler, execator.
i
J. Hill." This evidence was ruled out by the court on the
ground that Hill was dead, and that is the main ground of
error insisted on here.
The question presented in the record in this case is one
which has never been decided by this court under the; evi-
dence act of 1866. Code, §3854. The precise question is,
whether an agent having a mere naked authority to sell, is
a competent witness to prove his agency after the death of
his principal, when he failed to disclose his agency at the
time of the sale? If an agent fails to disclose his principal,
yet, when discovered, the person dealing with the agent
may go directly upon the principal under the contract, as
the plaintiffs have done in this case. Code, §2197. The
agent is a competent witness either for or against his prin-
cipal, his interest goes to his credit. Code, §2206. Thus
stood the law at the time of the passage of the act of 1866.
McCaslin, the agent, is not one of the original parties to
the contract or cause of action in issue or on trial, he is not
the other party to the contract or cause of action in issue
or on trial, as contemplated by the statute; the plaintiffs are
th€ other parties to the contract or cause of action in issue
or on trial who are not admitted to testify in their own
favor — Hill, the other party, being dead. But it is said that
inasmuch as McCaslin, the agent, did not disclose his agency
at the time he sold the bond to the plaintiffs, that the effect
of his testimony will be to discharge himself from liability
and cast the same on the estate of Hill, the dead man. The
reply is, that the same result would have obtained under
the law as it existed at the time of the passage of the act
of 1866. The estate of the deceased testator is in no worse
condition now by allowing the agent to prove his own
agency than it would have been under the law as it existed
prior to the act of 1866. Before the passage of that act
the deceased testator could not, if living, have been a wit-
ness in his own favor, although the agent was a competent
witness to prove his own agency as against liim. The well
settled i»iile of law which makes an agent a competent wit-
SEPTEMBER TERM, 1879. 239
Hawki vs. Hawks, execatrix.
ness either for or a^inst his principal, originated in the
necessity of the case, and it is not repealed or abrogated
by the death of the principal so as to render the agent an
incompetent witness to prove his agency. The result there-
fore is that McCasIin was a competent witness to prove his
own agency in the sale of the bond to the plaintiffs, as well
as the acts done by him within the scope of his authority
as such agent in connection therewith. The credibility of
his evidence will be a question for the consideration of the
jury.
Let the judgment of the court below be reversed.
Jackson, Justice, concurred on the ground that McCasIin
was the agent of the dead party, and by allowing him to
testify both parties to the contract would be heard. Had
he been the agent of the Lowrys. the living parties, he
would have held the witness incompetent.
Hawks vs. Hawks, executrix.
The act of 1874 making the specific exemption of the Code liable
for purchase money does not nifect exemption which had been set
apart before the act was passed. The facts of the present case en-
title the family of the debtor to protection against the judgment for
purchase mpney of the land in question.
Homestead. Before Judge Poitle. Oglethorpe Supe-
rior Court. October Term, 1878.
In 1866, Warren and Thomas D. Hawks as administrators
of Henry Hawks, Sr., sold 1000 acres of land to Henry
Hawks, Jr. and James M. Sinitli, made them a deed and
took their joint note and mortgage on the land. In 1867
Smith and said Henry, Jr., divided the land, Smith taking
400 acres, for which he paid, and Henry, Jr., 600. The latter
then sold 294^ acres of the 600 to George F. Hawks and
made him a deed. The administrators gave up the mort-
1
^40 SUPREME COURT OF GEORGIA.
Hawks ». Hairka, neraltlx.
gage aforesaid, and said Goorj^ F. and Henry, Jr., exfcated
to tliem a joint note for the 600 acres aitd a joint mortgage
thereon. The consideration to said Gcorf^ F. for Iiiii under-
taking in the last-named note was the deed from Hcpirv, Jr.
for the 9i)4J acres. Said George F. had 2075 othemcrea of
land lie had Wnght from Honrj, Sr, in 1855, and paid for,
and May 2^, 18(id, he had a homostead setaj>art under tlie
constitntion of 1863, eontaining4I8 acres, which was com-
posed of the 294J acres and part of tlie 207^ acres aforesaid.
The morljragc of George F. and Henry, Jr. to the admin-
istnitors was foreclosed and levied on the tiOl) aci'e*.
George F. filed a claim, as head of a faiikily, alleging that
294J acres of it were not subject, becanse included in said
homestead of 418 acres. This court held i i 46 Oa., thai the
294^ acres were subject, and after the case came hack, thf
whole 418 aeres were sold by the sheriff May 6. 1873, and
bonght by Warren Hawks, who resold to George F. for
Sl)500, taking note and giving bond for titles. This note
was sued to judgment and levied on 3S0 acres of land,
which was the 418, less a small part which Warren had sold
and conveyed to one Farmer with the consent of George F.
George F. then tiled his claim, as head of a family, to 60
acres as the homestead allowed him by the Code, and the
land was sold in Octol>er, 1877, subject to this claim.
Before the sheriff's rale in May, 1873, to Warren Hawks,
to-wit, April 28, 1873, said George F. filed his application
with the ordinary in due form for the said homestead of 60
acres. Warren filed a caveat thereto May 3, 1873, and the
application and caveat were ponding at the time of the sale
on the bth. as Warren well knew. The surveyor returned
the plat May 10, 1873, and it was duly allowed aud re-
corded.
The jury found the land subject. The claimant moved
for a new trial upon the gronnd, among others, that the
court eri-ed in charging the jury as follows :
" If you believe that the judgment and execution are
founded on a debt for the purchase money of the land
SEPTEMBER TERM, 1879.
levied on and claimed as ii lioincsteait in tliis case, and tliat
tliu pareliasu money is nnpnid, then I cluir^uyoii tliat the
clainiiint is not entitled to tlie liotncstcad Ectapart in April,
1873, until the pnrcliase money ia paid."
Tlie motion was overruled, and claimant excepted,
Sauobt, Ldupkin, for plaintiff in error.
Poi'E Bakkow, for defendant.
Blkcklkv, Justice.
There are ao many Hawks in the fact:* of this case, that
the air is a little darkened. Only two of them need fix our
attenti'Mi : these are Geoige F. and Warren, George F.
had litle to certain land, and procured 418 acres of it to he
set apart to him as a homestead under the constitution of
ISfiS. lJecan.=e it was under mortgage for purchase money
or for the removal of incnmbrancei', he could not hold it
all ill that way: so, in 1ST3, he tiled his application in due
form for the small homestead allowed by section 20iO of
the Code, claiming 60 acres of the 418 acres. The applica-
tion was caveati'd hy Warren, and while the caveat was
pending, the mr)rrgiigc. fi.fa. brought the wliole 418 acres
toi^ate, and Waiten liLiucne the purchaser. Shortly there-
after, and in the Tnontii of May, 1873, the litigation on the
pending applicarion fur the 00 acre homestead came to an
end, tliii applicalinii liring allowed, and the proceedings
going to record. Wiirn-ii sold out his whole purchase, io-
eltiding, of course, -siicli interest as he acquired in the 60
Mre homestead, to Go^gu F,, giving the latter a bond for
title and taking his iiuie for the agreed purchase money.
Jud^mont was obt^kinL'd upon this note, and levied upon the
tniotof 41 8 acres, k-s? ,i small parcel which had been disposed
of BBlisffictorily to 'mtli parties. As the levy covered the 60
•ere lioiuestuad. TIhhkh F, interposed his claim to that,
aettinfC up title to it by virtue of Its having been set apart in
tho niannor above htatu^l. In 1877 the land levied upon
VBB all sold subject to the claim ; and the question now is,
842
SUPREME COURT OF GEORGIA.
Hawks M. Hawks, execatriz.
whether the 60 acre homestead was subject to be sold under
this levy or not.
It is said that the mortgage sale was for purchase money,
and therefore the title passed by that sale to Warren
Hawks, notwithstanding he bought with notice of the pend-
ing application for the small homestead. But the pro-
visions of section 2040 of the Code were in force at the
time of that sale, unmodified by the subsequent act of 1874,
and until the latter act, there was, after the adoption of the
Code of 1863, no distinction between debts for purchase
money and any other debts, in reference to the small home-
stead. 41 ffa., 180; 57 Ga., 181. Certainly the act of
1874 could not aid a sale that was made before the act was
passed ; and. moreover, we think the act did not in any
way affect exemptions which were set apart previously to
its passage. Code, §§2047, 2048; 60 Ga., 173. By his
purchase at the mortgage sale, Warren Hawks acquired no
title to the 60 acre homestead which could prevail against
the homestead proceeding then pending, for the reason
that he purshased with notice that the application was pend-
ing. 40 Ga., 293 ; 44 Ga,, 603. Not only did he have
notice of it, but he was a party to it, having himself filed a
caveat. The date being witliin the interval between the
adoption of the Code of 1863 and the passage of the act of
1874, the mortgage, though for purchase money, could not
sell the small homestead. As it could sell the large one^
the debtor had a right to abandon that and take the small
one. 50 Ga,^ 216, 584. And this was the course he
pursued. The only very awkward fact in the whole case is
that he now stands on the homestead right after having
purchased from Warren Hawks without any express excep-
tion of the homestead from the terms of the purchase, the
bond for titles which he took from Warren embracing the
whole 418 acres comprehended in the first and larger home-
stead— the one which was abandoned. Holding Warren's
bond to make title to the whole, and the debt created for pur-
chase money when the bond was given being unpaid, he sets
^
SEPTEMBEK TEEM, 1879.
Bnckm * Elkwortb n. IttlLan * »oa
np, in resistance of the collection of tliat debt, the small
homestead as set apart nnder the proceedings which were
pending when Warren bought at the mortgage sate. There
is no donbt that if the adverse title which he now asserts
was other than a homestead or trnat title, it would not
prevail ; but in standing npon the homestead right in the
present claim, he represents his family, not himself, and the
case is therefore to be looked at as if the family were the
party on the record instead of him. What he may have
done to estop himself personally after their rights became
vested, cannot be used to bar tbeni. We think the facts of
the case protect tbcm, and that the court erred in charging
the jnry, and in not granting a new trial.
Judgment reversed.
Brackkn & Ellsworth vs. Dillon & Sons.
1. Before the liooks of a meruliaat or other tDidesniRti cna be used to
prove an account, it muat appctir Ihnl be has im higher evidence of
its I r II ' hit he bndao clerk who solil the goods, or
IhftI 111 ,. .1 If I one, is dend, beyond the juriMlitlLon, or
Ollierwisr- inairccb-iilik'. If he liad no clerk who sold the goods, or
Iba clerk is inaccc^ssjtiU'. then before be cnn introduce his books the
book-keeper, if accessible, must be produced to prove iLat it is the
tiook of original enlrjeij; If he had none, or he is innccessible. then
be nutjr prove that it is ilie book of original entries himself. Books
arc iecondnry evidence, and only admissible m ntretfilnte rti.
S. The t>ooks will licit eNhiblish considerable items for cash, nor ac-
vOnnUof third persons Irnnsferred to dufcndauls; nor ore they ad-
inisaible at nil In show the authority to make such transfer. They
tntiy bo odmllled in i-how that n transfer was miule pursuant to
previous authority.
3. In n stilt ugninsi a llrni, in order to bind an incoming; partner with
Iho tlollta and liiiliiiiiici of a private person or former lirm, to which
Iho defeoilaul!^ sueceeiled in the same business, plaJnljITs must kIiow
•ODie agreement 'in the I'art of tlie incoming partner, upon suHlciunt
coGslderation. in ussuitie such liabilities and pny stich debts, before
b« ciM be boiiiiil. tbroiiiih the new Orm, to pny the old indeblcdness.
^. Ovgllt Ibo Bfcn-euient lo be in writing as a promise to pay the debt
of a third person, ifuii'r' f
244 SUPREME COURT OF GEORGIA.
Brackrn & EllFKortta «. tHIIon & Song.
5. Where the transfer ia made by nulLority of the old debtor, it mutl
clearly appcjir llml knowleflge Ibereot waa brought hame to the in-
coming piiriner, and tlial he acquiesced in it, hefore he caa be
bound thereby.
e. Ovcr-piiyineDta may be recovered in & suit od an account, hut be
fore such recovery can be hud. Ibe over-ptiyincnis must be spccifled
and pleaded us a set-off. and with tike particularity.
7. The court is always al liberty to open Ihe case for new cviilcDce
bcrore argument U closed ; and unless abusiid, Ihe discrciion exercised
will not be interfered with,
EviJence. Partnership. ConlraetB. Set-off. Practice
in the Superior Court Before Jndge Mkrshon. GI_)'nn
Superior Court. May Term, 1879.
The following, taken iii connection witli the opinion,
euHiciently reports tliia case:
Dillon & Sons, who were merchants, broiiglit complaint
ml an open account against Bracken & Eliawoith, partners
in it Buw mill. The account eniliraced a variety of items;
amonjj others payments of drafts and accounts, and for
ca^ii, and also the following:
■■Sept. !
Ami. P. .1. Bracken accou
t transferred .
tt.a7i.8i.
■' Brackon&Hd^lalD,
do
. ima.Si.
" P.J.Bracken.
do
. 123.03.
Defendants pleaded the general issue, and also that they
had made various payments to plaintiffs, which were not
epecificrilly described because they were made by drafts not
now in the possession or control of the defepidants ; bnt
they alleged that in all plaintiffs were over-paid, and they
prayed judgment for whatever such excess mig]it bo.
Oq the trial, one of plaintiffs swore that the trautfer of
accounts stated above was authorized by Bracken, and
known and asaented to by Ellsworth. They swore to the
contrary. Dillon, the senior partner of plaintiffs' firm, was
the principal witness in their hehalf. Among otiier things,
he stated that plaintiffs bad had two clerks, one of whom
he had heard was dead, and the other was in Wayne county ;
also that they had two book-keepers in addition to plaintiffs
SEPTEMBER TERM, 1879. 245
Rracken k E Isworth vs. Dillon A Sonia.
themselves. One of these was shown to be dead ; the other
was a witness in the case. It also appeared that Bracken &
Ellsworth succeeded P. J. Bracken in business, who had
succeeded Bracken & Haslain.
The jury found for plaintiflFs $877.22 with interest. De-
fendants moved for a new trial on the following, anjong
other grounds:
1. Because the court erred in admitting in evidence, over
the objections of defendants' counsel, the books of the
plaintiffs to prove tlie account, when the evidence showed
that they were not the books of original entries, and that
he had two clerks at the time said account was n^ade, neither
of whom was shown to be dead, beyond the jurisdiction of
the court or otherwise inaccessible to the diligence of the
plaintiffs. [The evidence showed that the clerks entered
their sales in blotters at the time of making them ; these
blotters were then handed to the book keeper, and from
them he made up the books.]
2. Because the court erred in charging the jury as fol-
lows: '' It is a suit upon an open account brought by Dillon &
Sons against Bracken & Ellsworth, and in order to prove the
account sued upon, the plaintiffs have introduced their books
as proof. As proof they are legally to be admitted. The
book-^ that have been admitted in this case are introduced
as books of original entries under the law. In the absence
of better proof, they are to be considered by you. As to
whether they are the books of original entries or not you
have nothing to do with that question. That is a question
for the court, and the court has decided they are. If they
are not, it is the court's error and you are not responsible
for it."
3. Because, after charging the following request, to wit:
"Should you find from the plaintiffs' account that debts of
third persons, to-wit : P. J. Bracken, Bracken & Ilaslam,
and others, have been charged to the defendants by the
plaintiffs, then before they could be made liable to pay
said accounts or debts it must appear that the defendants
246 SUPREME COURT OF GEORGIA.
Bracken A EllnwDrth ». DlllOD 1 Pom.
undertook and promised, in writing, to pay said accoontSr
[or if not in writing they must have promised to pay mi
acconnte] upon some valuable consideration flowing from
tlie plaintifFa to Bracken & Ellaworth, the defendants in thi^
case," the court added the following qualification: "In
connection with the @ixth request to charge by the defend-
ants^ counsel, which 1 gave a moment ago, I charge this
fnrther — that if you find from the evidence in this case
that Bracken & Ellswortli became tlie successors of P- J-
Bracken in a subsisting business, and as a consequence of
that change that Dillon & Sons, with whom they were
dealing, were anthorized to transfer the acconnt of P. J-
Braukcn to the account of tlie successors. Bracken & Elli-
worth, that the presumption would bo that it was for*
valuable consideration." (The words in brackets appear in
the bill of exceptions, but not in the motion as set out in
the record.)
4. Because the court erred in charging the jury the
following requ(;«t of plaintiffs' counsel : "Counsel requfst
the court to charge the jury that the pica of set-off
by the defendants cannot be considered by them, for the
reason that the same is so loosely drawn that no recover;
can bu had thereon — §3465 of the Code : * Every plea of
set-off must set o:it the demand as plainly as if sued on.'"
5. Because the court erred in charging the jury as re-
quested by plaintiffs' counsel as follows: " That where a
new partner comes into a business, and said business con-
tinues, and is conducted without change as to the character
of the business, and a balance was due by the old firm, it i=
competent for the new firm to assume the balance of in-
debtedness of the old Hrm, and such assumption, and the
indebtedness of the old firm may be proved by testimony,
and in some ca^es m;iy even bu implied from the tranaae-
tion. If the evidence in this case discloses that Bracken &
liaslam conducted a steam saw mill business on the Maeon
& Brunswick railroad; that P.J. Bracken continued tli€
same business; that Bracken & Ellsworth became the tue-
SEPTEMBER TEKM, I8T9.
Brmcken JB Ellsworth m. Dillon A iioar.
'Ceesors to the same buBinees ; that all thcBe parties had deal-
ing with Dillon & Sons ; that Bracken & Ellsworth af>Bumed
sDius dne Dillon & Sons by Bi-ackiin & Uaelani and P. J.
Bracken, and aothorized the trauBfer of Baid amounts to the
account of Dillon & Sons against Bracken & Ellsworth,
they are bound by it. Ab to snch siinis as Dillon & Sons
are entitled to recover, you may look to all the eircum-
Btanoes surrounding the transaction for the purpose of de-
termining the matter of said alleged transfer."
6. Because the court erred in the following practice:
After counsel in said cause upon both eidea had announced
closed, the defendants introducing no testimony, C, Syinmes,
Esq., leading connsel for defendants, opened the argument,
and during its progress insisted that the court should charge
the jury that certain payments of money in tlie account by
•drafts and notes could not be proven by parol or the books,
that tlie drafts and notes were themselves the iiigheat evi-
dence ; upon which CouuEel for plaintiffs stated to the court
that secondary evidence had been admitted (without objec-
tion) of the payment of these items; that the drafts and
notes were in the court-house, and would havn been intro-
duced by connsel for plaintiffs if such objection had been
made. Counsel 'or defendants insisted tliattliey had made
snch objection ; whereupon, under the misunderstanding
aforesaid, L'liiiiisd t'nr jiljiiiititrs moved to re-open the cause
<or the purpose of introihuiiiii; said drafts and notes as evi-
dence, which motion the court sustained, upon the ground
that the justice of the cause required it.
The motion was overnilcd. and defendants excepted.
S. W, HiTOH ; Symmes it Atkinsos ; Iba E. SMrni, for
pUintiffa in error.
tioODVBAR <.& Harris, fur liofendants.
•lAt!|>90M, Jiistictt.
This aiiit waB lroUfi:tit uti an open account by the plain-
liffsagainat tlie defendantB as partners. Tliese partners were
248 SUPREME COURT OF GEORGIA.
BMcken t. KIlBWorih or. Dillon A son!.
Boeceseors to Bracken, one of tlioae now Bueii,and Banken
was successor to Bni<:kcn & Hiislam. Oil the account sned
on were itcrna transferreJ from Bracken's account when
alone and from Bracken & Hnslam's acconnt. Under the
rulin;^ and charge of th« court, the jury found somo eight
or nine liandrcd dollars with interest for several years
against tliu defendants, Bracken & ElUworth, Miccessoriie
aforesaid, and tliey Lnoved for a new trial, which the conrt
refused, iind this refusal, on tnany grouiids taken in the mo-
tion, \^ the error assigned.
1. It is claimed that the books were improperly admitted
on behnif ol the plaintiffs to prove anything at all. T.iere
were two clerks, alive and not inaccessible 6o far as was
shown in ihe proof, who were the salesmen of the goods
Bold and delivered. Besides, there appears to have been two
book-keepers, one of whom was dead, but the other accessi-
ble, being the son of the plaintiff who was sworn in the
case. The question is whether these bo^ks of goods so sold,
and the bo^ks so kept, were admissible in evidence, even to
prove the account for the groceries and provisions sold by
the phiintiffs in the line of their ordinary business.
Our law on this subject is plainly and fully presented in
the Code — section 3777— and is as follows:
F
''Thebookiof account of any murclj-int, shop-keeper, physicisn,
blacksmitli. or otliur person doing a regular business tind keeping
daily entries tliereiif. m:iy be admitted in evideace as proof of sucli
accounts, upon tbo following conditions:
"I. TUiit he kupt uo clurk, or else the clerk Ib dead, or olherwiM
tnaccL'axibie.
" 3. Upon proof (liie party's oath being BulQcleDt) that tbo book ten-
dered i4 Ills book of originiil entries,
•■8. Upon proof (by hia customers) that lie usually kept correct
" 4, Upon inspection by the court to see if the books are free fron
aaj bu^picioD of fniuil."
This codification of the Georgia law upon this subject
embodies the substance of the adjudications of tills conrt
from Ui Kelly to this day. 1 Kelly, 2SZ; 5 Ga., 'iS'J; S
/6., 74; 13 76., 496, 508; 17/6., 65; IS /J., 318, 457,
SEPTEMBER TERM, 1879.
Bnclien it ELlnvi
6»8 ; 20 /i., 365 ; 21 Ih., 334 ; 23 lb., 582 ; 24 11., 17 ;
27 /J., 36« ; 28 /J., 272; 30 /A., 121, 904; 31 lb., 346;
51 /i^., 121,57, 145; 61 /A., 30.
Nor does our law differ mucli — not at all except in Fome
details— from the laws of the other states, and, indood, of
most of the civilized world, including the motlier country.
See 2 Pliillips on Ev., note 491, p. CS2 el seq., and
caees there cited, where the whole enbject is discussed, and
very eiinihir conclusions to those summarized in our Code
»ro reached.
From this summary, which is onr law by our own stat-
ute embodied in onr Code, whether supported or not by
other authority (though it ia so supported), it would seem
clear that the evidence of books is secondary, and intro-
duced only when no other evidence can be ^ot—ex necessi-
tate rei.
Therefore, if the sale clerks of the party wlio offers the
books l>e alive and aceepsibte, he cannot prove even an
ordinary account by the books; because he lias better evi-
dence in the clerks who sold and delivered tlie ^oods.
Moreover, if he had a book-keeper accessible, that book-
keeper, not himself, must prove that the books are the
books of original entry ; because that book-keeper is a clerk,
and his absence must be accounted for, his evideiiou being
the test of the entries which he, the clerk or book-keeper,
made.
From an examination of the evidence in the record, it
Appears that the clerks who sold the goods were both alive
and not inaccessible — at least there was no proof of death
or of their being beyond seas — or otherwise out of reach
of process of the court. There appear also to have been
two boolw-keepers, one was proven to be dead, but the other
was not accounted for, yet the party was permitled to prove
the books to be those of original entries, contrary to the
rnling in 13 Ga., 508, and when he iiiinself appears not to
have made a single entry therein. The evidence of the two
wtMnieu was the best, 18 Ga., 693; 20 Ga., 3(35, and in
SUPREME COURT OF GEORGIA.
Bnck«D * SUeworth ra. Dillon t Sous.
their absence, to admit the booka, all tlie book-keepers who
made the entries should have been sworn or acconnted for,
before tJie partj* himself could be sworn to the bouks — so
ae to admit them. Moreover, there appears to have been
admitted in evidence, as well as we can ascertain from a
confused record, not onl; the journal, but the ledger.
The latter should not have been admitted, at any rate only
to show a regular system of book-keeping, but in no event
to prove the account or any part of it. To prove that, the
book of orif^in&l entries, the entries made, as a practice,
daily, are alone proof or evidence. Mere temporary mem-
orandum books, used by the salesmen, and iratiaferred
nightly from pencil entries of theirs to the permanent ink
book of the daily sales are not the books of original eutriee,
so as to exclude such permanent book ; but the latter is the
book contemplated by the statute.
2. But most assuredly these books were not proof of the
IciTitlity of the transfer of Hie individual accounts of Bracken
to tlio account of Bracken & Ellsworth.
The charge of the court seems so to regard them, and the
judge nowhere called the attention of the jury to those
items as not included in the proof which the booka were
competent to make, if competent at all. His entire charge
is not in the record ; but the extracts from it show no such
exception. So in regard to cash payment of drafts, etc.,
which the books could not establish as due by the defend-
ants to the plaintiffs. See 8 Ga., U ; 57 Ga., 145 ; Code,
§3777.
3. To bind Ellsworth, who came into partnership after
debts were due by his predecessors. Bracken, and Bracken
& Haslam, for those debts so incurred by his predecessors,
it was incumbent on plaintiffs to show some express agree-
ment, or some agreement implied by his individual conduct,
to assume that indebtedness. Some authority from him to
transfer the old accounts or other indebtedness of the old
firm, or prior parties, to the new firm of which he became
a member, is essential. "A new partner is of course liable
SEPTEMBER TERM, 1879. 251
Bracken A Blieworth vs. Dllion A Sooe
for all the sabeeqnent debU of the firm, in the same manner
as any other partner ; and it is equally obvious that he is
not liable for the old debts, unless he assumes them for a
consideration." Parsons on Part, 433. The author, Par-
sons, then goes on to discuss the consideration necessary to
support the promise, and closes with this remark: ^'On
the whole, we should say that the law of contracts and the
law of partnership lead to the conclusion tliat the new part-
ner is not bound to the old creditors, unless on a promise
to them for a consideration ; both of which might, of course,
be indirect and implied by circumstances." And then the
circumstances are indicated, such as paying interest on the
old debt, or the knowledge without objection that the firm,
of which he is a member, paid the interest. See also notes
and cases cited. Parsons on Part., pp. 433-4-5-6.
On the whole, we think that the question in this case on
this point was not submitted clearly and fully to the jury.
It is, as appears from Parsons above cited, a question mixed
of law and fact for court and jury ; and we think that the
court f&hould have charged that Ellsworth could not be held
liable for these debts of the old firms unless he had assumed
them, and that the jury mast be satisfied from the evidence
that he did assume them as a member of the new firm —
that he authorized the transfer, and considered the debt that
of the new firm, of which he was a member — that this
' agreement could be established by circumstances as well as
direct proof, such as payments made on the old accounts by
the new firm, with his knowledge and oonsentj or other
equivalent circumstances, if any, but always such as to
bring home knowledge of what was being done to him.
4. is such an agreement a promise to pay the debt of an-
other, and within the statute of frauds ? It would seem to
be the debt of another. The new firm and the old firm
are not the same person or being in law. The partnership
is not a corporation, but it partakes somewhat of the nature
of a corporation and has a sort of individuality. It is not
strictly speaking a legal person, yet it has a certain degree
16
352 SUPREME COURT OP GEORGIA.
Bnckeo ft BIlswoTth «. Dillon ± ««ni.
and mcasare of personality. The firm name, while Bnits
may not be brought by or against it in that name without
reference to those pcreona who compose it, is yet of enough
pcrsonalitj nod legal entity to render its nso in pleading
necessary ; and, nnqnesttonably, when one of a firm jjoee out
and another comes in, tlie firm is changed — an old partner-
ship dies and a new one is born. See Pariionson Part., pp.
267 et aeq. Indeed, the law merchant recognizes tlictii as
quasi corporations. Parsons on Fart., pp. 170-1 et tiq.
The promise to pay the debt of one partnership by another
totally different paitnership would clearly be the proiiiii«
to pay the debt of a third person, and within the statnte.
How far the fact that the new firm is composed in part of
the old, or that the new firm is grafted upon the individual
stock of a private person, who is one of two members com-
posingit, may change tlie rule, we do not decide. That is the
case here. The firm of Bracken & Ellsworth was grafted
upon what was the private business of Bracken in the mat-
ter of the milling business, and Bracken's private biisinefi
while he ran the mill, was grafted on that of Bracken &
Haslam. It would seem that when Haslam went out, tlie
first partnership died, and Bracken went on alone, iintil
Ellsworth joined him in the bnsincse, and made an alto-
gether new firm. Indeed, there was no pari nership when
he came in, but he made it by joining in with Bracki'n'i
private mill business. Even when a new man comes into
an old partnership, it is a new partnership. Parsons on
Part., p. 34, It would seem upon principle, therefore, tliat
in thib case U was a promise to pay the debt of another;
but as the question was not argned fully before a\ and as
it does not appear what assets of the first firm of Brat^kcn
& Ilaslum, and of Bracken, their enccessor, went into the
new firm, we leave the question open with the above re-
marks npon the genera! bearings of principle ujion it.
5. It wonld seem dangerous in a case like this to hold
the new firm bound upon slight circumstances. The ac-
counts of Bracken were transferred — Dillon testifies— to
SEPTEMBER TERM, 1879.
the new firm by his order. It is not said that Ellsworth
had it done. Bracken was interested to have it done, and
it is a case where Dillon slionld liave conferred with Ells-
worth to see that all was right. But both Bracken and Ells-
worth deny it. The former, that he ordered it done or was
anthorizcd to do so; the latter, that he everautliorizcd it or
ever agreed in any way to a^gnme the debts. If Bracken
had agreed with Dillon, and if parol evidence wontd bind
Ellsworth, then the door would he wide open to fraud, nn-
Icee from the circnmstanccs Dillon ought to liave snspecled
something was wrong, and to have got Ellsworth's sanction
as the only party interested against tlie transaction. See,
as bearing generally on this subject, Code, f§Ufll, 1912,
1913, 1917; 19 Ga., 335; 31 /fi.,688; 26 /J., 5CS;3G/J.,
108 ; 15 Ih., 137, 252, 351 ; 21 Ih., 238 ; 2 Kelly, 29.
6. The set-off should liavo been pleaded specifically, and
itemized, to have authorized a recovery for over- payments
by the defendants, if the plaintiffs' claim had been over-
paid. When pleaded, it may be recovered. 57 6a., H5.
7. The court may open the case and let in new testimony
before the argnment is closed, when jnstice requires that it
be done, Tlie niiittci is luncli in the discretion of the pre-
siding judge, and unless in s<ime flagrant abuse of discretion,
or clear injustice to one or the other side, this court will
Dot control that discretion.
On the whole we arc quite clear that the case should be
tried over, and that the court erred in not granting the new
trial. Therefore the; Judgment is reversed.
Judgment reversed,
S64 SUPBKME COTJRT OP OEOKGIA.
PlcqiHl w. The L'ltf ('MmoU of Angiuta tl al.
PiCQDirr VS. Tqe Citt Council of Auousta et al.
One who seeks by bill to ael nside h sale of property under & Uieie-
cutioD against him, must slion thnt be has some title to or icleresl
)d the property. Tlie allegulions that he considered himseK bonnd
(o pny ali legal tAzes on ttie liouse and tot, and that it bad been lold
under D laz execution issued sgNinst him by one defendut, and
purLhaecd by the other at the sale, are not eufflcieot to prennt*
dismissal of tliebillon demurrer.
Blkcrijet, Justice, disaeoled.
Equity. Pleadings. Taxes. Before Judge Snkad. Kch-
mond Superior Court. April Term, 1879.
Picqnet filed hie biU against the City Connci] of AngusU
to enjoin the collection of certain municipal taxes for which
fi-fas. had been levied on a house and lot in the city of
Augusta, alleging various points of illegality not material
here. In the bill he alleged that "while not the owner of
any real estate, he has since the year 1861 considered him-
Bclf bonnd to pay all just and lawful taxes, when legtll;
demanded, on the house and lot then, and since 1861, occu-
pied by your orator." Charging on the enbjfct of over-
valuation in taxing, complainant stated that if the hooBS
belonged to him ^'in fee simple," he would take $1,000,00
cash for it. The chancellor refused to grant a temporary
injunction. Subsequently complainant amended his bill by
striking out the words " while not the owner of any real
estate," and alleging that if the property belonged to him
*' fiee from any incumbrances," etc., instead of " in fee sim-
ple." He also alleged that one Freeman has taken from
the city a transfer of the tax fi. fas., had caused the prop-
erty to be sold under them, and himself became the par-
chaser. Complainant sought to cancel this deed.
On demurrer, the chancellor dismissed the bill, and
complainant excepted.
A. D. PioQUBT, by brief, for plaintiff in error.
SEPTEMBER TERM, 1879.
Picqnct n>. Tbe Cltf Caun
William Gibbon ; J. C. C. Blauk, for dofendante.
Wabsek, Chief Justice.
This was a bill filed by the complainant againBt the de-
fendants, with a prayer for an injunction to restrain the
collection of certain citj ixjiji.fas. which liad been iesned
against him by the defendant, npon the allegations contained
therein, and for other relief. The chancellor refused the
injanction prayed for, and upon demurrer to the complain-
ant's bill dismissed it. Whereupon the complainant ex-
cepted.
The main object of the complainant's bill as amended is
to set aside the sale of a certain described house and lot in
the city of Augusta, which had been levied on and sold
nndereertaincity tax j?./<M. issned againat him,a8hiB prop-
erty, for the reasons alleged therein. When the complain-
ant liled hie original LilK Iil- alleged that he was not the
owner of any real estate, hut considered himself bound to
pay all jnst and lawful taxes fin the house and tot in ques-
tion. Afterwards, when Wm hill was demurred to, the
complainant amended it hy striking oat the words " wtiile
not the owner of any real estate," so that the bill is now to
be considered with these words stricken out, but there is
BO allegation in bis bill that he ever was the owner of the
bodEe and lot which was i-old for taxes, or that he had any
interest whatever in the sainu either legal or equitable. Ic
ii a fandamental principle that a court of equity will not
eiitertnin a hil! in favor of a party who shows no title or
intereat in the sobjeot mutter for which he seeks relief.
Story's Equity Pleadings, portions iJGO, 261, 262. But it is
iUMSted that iniisniuch iis ihc defendant issued the tax Ji.
foB. against the complaiiiHnt for taxes due by him, and
hvied thu Mime on the house ;iiid lot in question, and i^old
it as hi* property, the dufL-ndiint, as well as the purchaser
ftt the sale thereof, would be e^iiopped from denying that it
WH> his property; that might lie so if the complainant had
256 SDPEEME COURT OF GEORGIA.
Plcqnet n. The Cliy ronnell of ADEnata H ai.
alleged in his bill an^ interest in the property either legil
or equitable, which would have authorized a court of equity
to entertain it for his relief. The first thing for tlie com-
plainant to have done was to allege tnch an interest in tLe
property as would entitle him to relief in respect to that
property ; in other words, to have shown by his bill such an
interest in the property as would entitle him to enter the
court for relief and thus having legitimately got into coort,
he wonid then have been in a position to raise the question
of estoppel, if the defendant had attempted to show he iiH<l DO
title to tlie property. But he fails to show such an interest
in the propeity, the subject matter of relief, either legal or
eqnitablc, as would entitle hini to enter into the court for
obtaining the relief which he seeks by his bill. If the
complainant had no interest in the proptriy told for taxes,
and if he has alleged none, it ie difficult to perceive how lie
has been injured by the sale of it.
Besides, the complainant did not offer to pay the taxes
admitted to be legally due. There was no error in Gustain-
ing tho demurrer to the complainant's bill.
Let the judgment of the eourt below be affirmed.
Jackson, Jnetice, concurring.
This bill put in issue the validity of several hnndred
thousand dollars of botids of the city of Augusta, and
attacked the system of uinnicipul taxation generally, as well
as for the purpose of paying these bonds. Before any per-
son will be heard by a court of equity on matters of so
much gravity, he must show that he has some interest iu
those matters, and that he U not a mere amateur couiplaiti-
ant. In his sworn bill this complainant tirsl alleged that
he was not the owner of the real estate about which lie was
eoniplaining ou aecount of its rate of taxation, and whea
the hill in this condition was demurred to, he ainendeil by
striking ont the allegation that '"he was not the owner," bat
he inserted no si>rt of interest in the house and lot iu ilea
of the words stricken. Whei-eupon the court, ou demurrer
to the bill as amended, dismissed it.
SEPTEMBER TERM, 1879.
n>qiirtM. TtigdlrCDDDCllOf Allg^Bll
I tbink tliat the court did JDSt wimt ought to have been
done. Equity will interfere with reluctance in govem-
mental matters, either Btate or mimioipal, even at the in-
stance of one who is the owner of property and entitled
to be beard becanse his property is taxable ; it will not in-
terfere at all at the prayer of one who comes with the
acknowledgment that be does not own taxable property,
and tlierefore seeks, as a sort of amicus civitatis, to have
city matters managed accurdiiig to his ideas of law.
The city of Angusta wishes to pay the bonds it owes on
account of its great canal, and wbicti those bonds built, and
certainly nobody but a tax-payer who has property therein
should be heard to counsel the repudiation of such a debt.
Equity, therefore, will not bear the complainant, and I
concnr in affirming the judgment of the superior court.
ijLitcKLEY, Justice, dtsBenting.
I dissent from the ground upon which the court disposes
'^f this ease. The matter under review is tlie sustaining
of the dcnuiirer to the complainant's bill. T think that this
court should go on and du<;ide upon the merits ot the bill)
treuting tlm ull(;g:itiuii of tiju title in the complainant as suf-
ficient. These parties defendant stand committed to the
owncriihip of this property by the complainant, for the city
council lias issued execution against him for taxei^, and the
property has Iieen levied upon as his property for taxes,
and the other defendant in the hill lias purcliascd it at the
lax mie. These facts ajipL-ai- upon the face of the bill, and
in my judgment afford complainant a presumptive case of
tlttc upon wiiicll he has a ^landing in court.
Without invoking the technical doctrine of estoppel, the
allegntiuns in tlie bill may be n.'garded as prima fade siif-
Scicnt to enable the cuniplainaiit to proceed to a hearinf^,
I am qoito confident tlial if thi» suit was anywhere ej^e, in
a eonleet with tbcgo parties tliat the mere showing that they
bold under this cumplainatit would be sufficient evidence oC
^tlo til him, and \ do not sec why it would not be sullicient
258 SUPREME COURT OP GEOROIA.
Bnrd t*. Dsan.
in a court of equity. The alle^tione in the bill mtubt
have been more epecifle. perhaps onght to have been, bnt I
do not think a partj ought to be expeiled from conrt be*
canee he did not more particularly allege what the defend-
antB must have conceded in order to hold the property
againet him.
I do not know that if the merits of the case were con-
sidered I would vote for a reversal of the judgment, bnt
my dissent is based on the ground that, in my view of the
bill, this court ought to go on and pronounce judgment on
the matters of complaint that the bill makes against all the
defendants.
Bbabd tu. Db&n.
It is not obligatory upon the ordiiiHry, or upon the superior court on
appcnl, lo euperBcde tbe mother ax n&tuntl gUHTillaa of h daugliler
over fourlcen years of a^je, and appoint bb guardian the person
elected by tbe latter. And where the mother, though no longer ■
widow, desires the guard! unship and offers bond and satisfHClnry st-
curity. tind where sbe is not shown to be unfit morally, meni^illj.
or otherwise, to bring up her onn daughter uid manage her eslats.
a judgment rejecting the nominee and appoioling lti« molber will
not be disturbed.
Guardian and ward. Before Jndge Pottle. Madieon
Superior Court. March Term, 1879.
RosB Beard, a female minor nearly sixteen years of Bgei
applied to the court of ordinary to be allowed to select her
guardian, naming Skinner. Ross' mother, her father being
dead, caveated the application, and asked that she bo sp
pointed. It was so ordered and Koss appealed to thesope-
rior court. Upon the trial there the evidence presented, in
brief, the following facts :
Rosa' father died before she was born. Her motlwr
raised her until she was about seven years of age, when she
went to her uncle Dean's to sow some peaa, and had there
SEPTEMBER TERM, 3879. 269
Bmrdw DetiD.
remained since ; her mother had married again, and her
(Robs') association with her step-father's children by a
former marriage was not pleasant ; she was happy where
she was, had lived with her uncle for seven or eight years
pleasantly, was treated kindly and as one of his own chil-
dren, and preferred so to remain to returning to the care of
her mother ; Skinner would not interfere with this condi-
tion of affairs, whilst if her mother was appointed she
would be compelled to return to her step-father's; she
owned a small tract of land of the value of about $300.00.
There was testimony to show that either Skinner or her
mother would make a proper and competent guardian.
The issue thus made was submitted to the court without
the intervention of a jury. The mother prevailed, and Ross
excepted.
G. Nash ; J. B. Estrs ; W. G. Johnson, fqr plaintiff in
error.
J. M. Mathbi|^ ; Samuel Lumpkin, for defendant.
Blrckley, Justice.
There is certainly nothing in the record to warrant this
court in the slightest interference with the discretion exer-
cised by the court below in appointing the mother rather
than the person selected by the ward, if that court had, by
law, any discretion in the matter. The guardianship in
controversy was not of the property alone, but of the
person also. Indeed, it was the latter clement that gave
point to the whole proceeding. There are three sections of
the Code which we find it necessary to compare and inter-
pret. Section 1803 says that the father, if alive, is the
natural guardian ; if dead, the mother is the natural guar^
dian ; a guardian's bond has to be filed, and accepted by the
ordinary, before the natural guardian can receive property,
and if this is not done, the ordinary may appoint another
guardian to receive the property. Section 1806 empowers
SUPREME COURT OF GEORGIA.
the ordinary to appoint for a minor " buvin^ no guardian,"
a guardian of pereon and property, or of either, and adds
that if tlie ward ie above the age of fourteen years before a
guardian is appointed, the wBih] shall have the privilege of
selecting, and if the eeleetion be judicione, the ordinary
flhall appoint the persou eelected. Section 1808 is in these
words: "In the appointment of guardiang, tlie widowed
mother shall have the preference upon complying with the
law. Upon her marriage again the letter are revoked,
though her husband sliall be responsible to the ward u
gnardian, if no other guiirdian be appointed. Among col-
laterals applying for the gnardianship, the nearest of kin by
blood, if otherwise unobjectionable, shall be preferred-
males being preferred to females. The ordinary, however,
in every case may exercise his discretion according to the
circumstances, and, if necessary, grant the letters to s
stranger in blood." To harmonize all the provisions of
these three sections, they nnist be read attentively. Natn-
ral guardianship, pure and simple, is of the person only,
and is incident to the relation of parent. "She ordinary has
nothing to do with consfitnting the mother natural guar-
dian any more than with constituting the father such.
The mother succeeds the father by operation of law, and
without any action whatever by the ordinary — no appoint-
ment, no letters of guardianship are contempbitcd. But
for the mollier, or the father either, tohaveguardianshipof
the child's property, the ordinary must be consulted ; bond
must be given, and by tlie ordinary accepted. When this
ia done the parent is guardian of both person and property
But suppose it is not done, what is the power of the ordi-
nary? Merely to appoint some one else guardian to re-
ceive the property. Nothing is said of any authority to
diRplacc the parent as gnardian of the person. For a minor
having no guardian, the ordinary may appoint a guardian of
person and property, or of either ; but if the minor has a
natural guardian, it certainly cannot be said in a broad
sense that he or she has no guardian. In sach case the
SEPTEMBER TERM, 1879.
ran^c of appointment h limited to gnardiansliip of the
property, for it is only as to property that there is no guar-
dian. The right of a ward of the prescrihed age to elect is
limited in the same wny ; if a ward haa a natnral or other
giiardiuii of the person, tiie ordinary has no power to
appoint a personal gnardian, but only one of property, and
the right of the word to elect cannot extend beyond the
Ecope of the ordinary's power of appointment. When both
parents are dead and there is a vacancy in the entire field
of guardianship, the right of election is nnlimited. l)oea
the inolber cease to bo natnral gnardian on the termination
of lior widowhood by marriage 3 We think not. As natu-
ntl guardian proper, she does not iiold by appointment, and
has no letters to be revoked. Tlie revocation which takes
place on her marriage relates to her guardianship of
property, iinJ not to lliatof the person. After marriage, aB
befoie, she is, as mother, the most fit and proper of all
persons to have the cnstody and training of her child —
efipecialiy if the child be a danghter. There is no hint in
the statute that she loses by marriage her position or
authority as natural guardian. It is only what cotnes to
bor through the ordinary, or wltji his approval, that lapses
when marriage takes place. We are not to be understood
ae deciding for or against tiie power of the ordinary to re-
move her, in a speciiil ease, from natural guardianship, but
only as hulding thiit it is not obligatory upon him or upon
ths enpisrior court on appeal, to snpei'sede her where she le
not Ehuwn to be unfit morally, mentally or otherwise to
brill); lip her eliild. We are certainly safe in this ruling
wlivro she makes the offur of bond and satisfactory security.
If, in the c«(e before ns, the election of the ward and the
application for letters had been restricted to guardianship
of the properly, it may be that the election ought to iiave
pFo*nile<l ; bni as the real contest was overguardiansliip of
the person, anil nothing was bIiowii against the mother's
fiineta to manage tin.' property, we will not separate the two
mxttera which thu conrt below acted upon as a whole,
SUPREME COURT OF GEORGIA.
Tb( SonthecD Sur LIf hulng Ri
■ Co. H. Dnnll.
which action is excepted to here aa a whole, and oot other-
wise. The new relation of married women to property,
broDftht in bj thR act of 1866. may hav% some bearing on
the power of a mother to continue in the gnardianebip of
her child's property, notwithstandinjir her marriflge. And
even without that act, it is not certain that she conid not,
after marriajie, beappointed guardian of property, or alio wed
to receive property aa natnral guardian, by givinf; bond >nd
Beenrity. After the termination of her widowhood, she
would have no right to be preferred as gaardian of prop-
erty, but that would not necessarily work an incapacity to
serve if appointed, We, however, leave the property
elemt^nt of the controversy to ^tatid, not on the theory tbat
it was well docided in and of itself, bat for the reason tint
the real contest was over gnardianehtp of the pei-son, and
because the natural guardianship of the person was in the
mother, anJ no conclusive reason for withdrawing it was
shown, even if the power to withdraw existed. Putting
the action of the court on the plain of discretion, it was not
abused.
Judgment affirmed.
The SotrrHEHN Stab Liobtnino Rod Ooupant vs. Dovall.
1. WbcB a person not a party to an exeoulion nor the bolder of toy
f UDd beloagiog to the defendaot, advances his own money lo obinio
a trnnsfer of Ibe execull"D, vith an intenlion &l the liine not lo
exlinguiab it, but to keep it open ngiiiast tbe derendant until rviia-
burned for the outlay, the transnction (however it miiy lie denomi-
nated nfterwards by the witncases) is not a payment liul n purcboM;
and though tbe person receiving ibe money and making iLc vnaita
bas power to collect, yet it he has no power tii sell nbsolulely U
against the plaintiff, and the plaintiff has never ratifled by Accept-
ing the money or otherwise, there Is no satjsraciion, and his litla
remains unitnpaircd.
3. Tbe attorney of record is empowered by law lo tr -nsfer an eiecn-
tlon. subject to r&lifloatioD by bis client, but whoever deals witA
tbe allofDey or bis transferee takes tbe risk of ibe client's fsilun or
refusal to ratify.
Jacuom, Justice, dlBsented.
SEPTEMBEK TERM, 1879.
■r Llcbtnlng Bod Co. n. Danll.
Executione. Levy and sale. Payment, Attorney and
client. Before Jndfi^ Undkewood. Floyd Superior Court.
March Term, 18T9.
On Febrnary 28, 1873, an execntion in favor of the
Liffhtning Rod Company againet Ayer, Dnvall & Turner,
was issned from the clerk's office of Floyd superior court,
for $I35.U0 principal, $11.!>5 interest, and costs. On it
were credits amounting to $Mj.00;ai8O the following
entries :
" For ralue received the wUbinjI./a. Is herebr coDtrolled and traoa-
ferred lo A. P. McCord. August 28d. 187S.
(Signed) Dun LAP Scott,
PlITs Ait'y."
" BntiaOed in fall, principal and interest.
(Signed) A. P. McConn."
A levy being made upon the property of Duvall, be
filed an affidavit of illegality sotting up payment. An
ieeae being formed as to the fact of payment, the plaintiff
read in evidence the txiiittion, with the entries thereon,
and proved by Ilouker, it^ hiisineas manager, tlmt the plain-
tiff did pnt in Dunlnp Scott's hands for collection an
account for J135.()0, hut had never received from Scott
any reinittuntie thereon; ihat plaintiff had never anthor-
izod Scott to transfer the execntion to any person, and had
never ratilied the transfer to MoCord or to any one else.
Diivall, the defendant, testified, in brief, as follows: I got
MflOord to go to Scott, who was the attorney for the plain-
tiff and who was then pressing me on the^.ya., and pay it
off for me. lie advanced the money for me, as I did not
have it at that time. I afterwards refunded to McCord
what he had paid for nie on the execution'; also paid the
olerk bis costs. I know nothing about the transfer on the
Mccntion from Scott to McCord.
MoCord testified that in the summer of 1873 Duvall got
him to pay off an execution held by the plaintiff against
him, in the hands of DunUp Soott ; that as a matter of
SUPREME COURT OF GEORGIA.
Ttm eoothFTO Star LlghtuliiK iiol IJo, rf. DaraiJ.
precaution he took a transfer of the execution lo liiim-i-lf
till Duvall should pay him back the money, Tliiit iie paid
the pnricipnl and interest of the claim, all of wiiicli Diivall
refunded to him ; that he did not make one cent on tlu-
transaction ; that he did it as a matter of accontumdiition
to Diivall and not as an investment.
Turner testified tliat he was present when McCord jjai'i
the execution to Scott for UiivrJl ; that the hitter diil nol
have the money to pay the exccntion, and McCorii waslo
pay it for him ; that at the an^jgention of witness, ftJct'iird,
.when he paid the money, took a transfer of the execulion
to keep it open for liis protection.
The jury found the issue in favor of the defendant
Wliereupon the plaintiff moved for a new trial lieciiiM liie
verdict was contrary to evidence and to law, and l)c«nEc
the court erred in charging tJie jury as follows : '■ If Mc-
Cord paid t\\GJi.fa. for Duvall, and did not purchase (lie
Jl.fa., that would be a payment and satisfaetioii of llit/
fa." there being no evidence to justify eneh instriiiilion.
Tiie motion was overruled, and plaintiff excepted.
C. A, Thounwell, for plaintiff in error,
Wkiqht & Featheeston ; John H. Reese, for defendant-
Bi.EUKLEY, Justice.
1. Did McCord pay the >. /a., or did he puidiascif?
He was not a party to it, nor did he have in liiind aiij
fund belonging to the defendant. The latter reqnusted
him to advance the money and pay off the fi. pi-, ■'""
this he promised to do; hut did lie do it? Did Iil' "«'
change bis mind, and conclude to purchase ilie /■ /"■
and keep it open against the defendant, so tliat lie
might, if necessary, enforce it for his reimburseiiitu"
It matters not how late he underwent this eliunfri: "'
purpose, if he did in fact undergo it, and if ho ai^ti-'d »<*■
corditigly in his dealings with the plaintiff's attoriieyr *'
SEPTEMBER TERM, 1879.
m 8Iar DghlnLnt; Ki
the time of parting with his monfiy. Grant that bo actinj^
would involve a breach of faitli, he had incurred onlv the
obi ifi;ation wliich a bare [iromise imposes, not that which
attaches to a bijiHing contract, no conFidemtion for the
promise having passed. To violate even a iiakud promise
deliberately made, is a moral delinqueney more or less rep-
rcheiisiblo; bat the law does not charge itself with the
enforcement of naked promises — leaving them to the vol-
untary decisions of private conscience. Moreover, it is
not every deviation from the terms of a promise that
amounts to a breach of it. The spirit of a promise is often
as well kept by departing somewhat from the letter, as by the
most literal performance. Regard is to be had to the benefit
which was in contemplation when t lie promise wai- made, and
if there is reasonable certainty that tiic benefit will equally
follow from a free as from a close method of performance,
either method may, in many instances, be adopted without
the slightest infidelity to moral principle. On strictly eth-
ical gronnds, there is undoubtedly j^reut danger in varying
this or that detail in the mode of performance, and any-
thing lilie a liahitiial practice of doing bo would bo perni-
cious; but a jiiflt recognition and observance of the correct
genenil rule will not oblige us to treat the rule as one witli-
oot exeeptions. There arc exceptions ; and the explanation
of McCord's conduct in ihe present case lies in the fact
tliat ho deemed iiimj^elf at liberty to make tliis one of the
nnmbcr, Wlielher he judged rightly or not, there are
nniiii:!takiible indications thiU he so judged. The evidence
dcinoiiet rates that in aim ami purpose he was true, th ro ugh-
oat, to the object for which he undertook to advance the
money and ]>n\ off tlie /'./((. Tluit object was to relieve
the dufondint from tlie pressure wliich the plainCifI'D attor-
ney was cxi-rtiug upon (he defeTidant for the money. It was
in consequence of this pressure tliat the defendant applied
to McCord to befriend liim. No less conclusive is tfie evi-
dence that McCord, after umking tho promise, and whilst
Wgftged in the act of complying with it, embraced the
266 SUPREME COURT OF GEORGHA.
TlieSoatlierD3urLigbtaiiiBK*dCo.M. Dunll.
Opinion that tlie object coald be as well sabser^ed by por-
.obaeing the ji. fa. ae by paying it off. To this he was
moved by the suj^estion of the witoeee Turner, a Btigges-
tion that was accepted and acted upon in a way to leave no
restige of ancertainty that McCord and the attorney both
intended that the ji. fa. should not be extingnished, bat
that it should remain open in the hands of McCord, as his
property, to be enforced by him at his pleasure. No doubt
McCord intended to indulge upon the ji. fa. to the same
extent as he would have indulged upon an account for a
loan of the money, if his original purpose of makinj; a
loan had been carried out. He supposed he was giving hia
friend all the substantial frnits of the promised accommo-
dation, and at the same time securing himself for his ontlay
somewhat butter than was thonght of in the beginning. Most
probably he had not the slightest doubt of bis moral right
to take a transfer of the ji. fa., or of the attorney's legal
authority to execute it. But the fact of transfer is indis-
putable, and that fact is control linn;- In Harbeckiw. Van-
derbilt, 20 N, Y., 395, the court said : " It is equally clear,
that if the money be paid, not by one who is a party to
the judgment and liable upon it, but by some third person,
the judgment will be extinguished or not, according to the
intention of the party paying. The taking of an assign-
ment, whether valid or void, affordsunderall circnmstances,
unequivocal evidence of an intention not to satisfy the jadg-
ment." To intend a payment, strictly and properly, of any
instrument, and to take a transfer of it at the same time,
would be in the highest degree absurd. What could Mc-
Cord possibly have wanted with the f. fa. if it was a paid
and cxiinct paper 1 The proper evidence of payment would
have been a receipt from the attorney ; and the attorney
should not only have entered the eatisfaotion on the ji. fa.
and returned the^.yff. to the clerk's office from whence it
issued, but, under the rules of court, be would have been
subject to a fine if be failed to report the collection for
entry oa the execation docket, etc. See Rules of Superior
SEPTEMBER TERM, 1879. 267
The Southern Stir Llghiuing Bod Co. vg. Darall.
Conrt, "Attorneys." Nothing whatever was done on the
line of payment, bat every step taken was on the line of
purchase ; the last of which steps was the entry of satis-
faction, signed by McCord, the transferee. This entry is
without date, bnt there is no evidence that it was made
before the actual payment of the ^. J^a. by the defendant
to McOord : the presumption is that it was made then, for
the import of the entry is that the satisfaction was made to
McCord, he being the person who acknowledges it. Though
the payment made by McCord to the attorney is called by
the witnesses a payment of the ^. /ir., it was really a pay-
ment ybr the Ji. fa. on a contract of sale and purchase,
which contract was reduced to writing, signed, and deliv-
ered with the Ji, fa. itself. The misapplication of terms
in the parol evidence cannot alter the facts, nor vary their
legal significance or effect. 68 Ga.^ lS4 to 139 ; 62 /&.,
82, 83.
Having thus seen that the true relation of McCord to
tlie^. fa. was that of purchaser and transferee, and that there
was no exercise by the attorney of his power to collect the
ji.fa. and extinguish it, the effect of the transaction turns
upon the naked legal question whether the attorney could
bind his client by the assignment for full value, the evi-
dence being positive that he did not pay over the money,
and that the client did not in any way ratify the assignment.
An unauthorized sale of the client's property would not
divest his title. 8 Oa.^ 421 ; l^ /J., 337. And a payment
by the debtor to the assignee, would be no satisfaction or
discharge. Wilson vs. Wadleigh, 36 Me., 496.
2. The case last cited, as well as numerous others, among
them Campbell's Appeal, 29 Penn. St., 401, are in j>oint on
the general proposition, that to assign an execution is not
within the scope of the general authority of the plaintiff's
attorney. Our Code, however, deals with the question and
settles it for us in these terms: '^ The transfer of a judg-
ment or execution by the attorney of record shall be good
to pass the title thereto as against every person except the
plaintiff or his assignee without notice. The ratification
17
268 SUPREME CODRT OF GEORiilA.
The Soul hern 9Ur Ughtntng Rod Co. (*, UuvbLI.
by the pluinliff shall estop him also from den ving tlie trang-
fei'. T!ie receiving of the money shall be siicli a ratifica-
tion." Code, §3598, There can be no rational construction
of this liiiifjuage which does not hold that whoever deals
with the attorney or with his aseignee, takes the ri^k of the
clidiit'ii failure or refusal to ratify. That risk, in this case,
wa? iijioii McCord in making the purchase, und upon Duvall.
the ikferiilaiit, in afterwards making payment to MfCord.
Atid as the plaintiff has never ratified, the verdict of tho
jury in contrary to law and evidence, and the superior court
erred in not granting a new ti'ia).
Tlie haidship of the particular case is no reason for melt
ing dinvn the law. For the sake of fixedness and nnlform-
ity, law must be treated as a solid, not as a fluid. It miiBt
\vdVL\ and always retain, a certain degree of hardness, to
kei-p its Diitiines iirm and constant. Water changes thupe
with L'viry vessel into which it is poured ; and a liquid law
would Viiiy with the mental conformation of judges, and
become a synonym for vagueness and instability.
Judgment reversed.
Wahner, Chief Justice, concurred, but furnif^hed no
written opiTiion.
Jackson, Justice, dissenting.
Duva'l filed an affidavit of illegality to the plaintiff's/
fa., un the ground tliat it had been paid off by liini. T!ie
jnry found a verdict sustaining this affidavit, the plaintifi
made a motion for a new trial, which was overruled and lie
excepted.
Fifty dullars was paid on the>'./a. by Dnvall in person.
thiity in March and twenty in June, 1873. In August of
the same year Duvall got MG'"'ord to pay for him tbc
balance and have the _fi. fa. satisfied. The balance was
paid to IJimlap Scott, plaintiff's attorney of record, by
McCord, to whom also the other payments were made by
JJnvaU. But McCord took from Scott the following tratis-
■without the knowledge or consent of Duvall ;
SEPTEMBEli TERM, 1879.
irLli;hInlngRod Co.
"For valne received the within _^. _/(/. ie lierchy con-
trolled and transferred to A. P. McOord, August 23, 1873.
DoNLAP Scott, plaintiff's attorney;" and entered imme-
diately under tliis transfer was llio following : " Satisfied in
foil, principal and inlerest. A, P. MoCokd." N ate is
given to tliis satisfaction of tlie^./«. SooU died, failing to
pay the money over to the plaintiff. Duvall paid McCord
the advance he had made before the plaintiff moved against
him.
Dnvall swore that he got McCord to go to Diinlap Scott,
who Wiia pressing him on tliefi. fa., and pay the execution
forhrm, and afterwai-ds paid him back.
McCord swore that Duvall got him to pay (ff the fi. fn.
for him to Scott, wliich he did, and as matter of precautwh
took tlie transfer — but not as an investment.
Turner swore that he was present when McCord paid the
fi.fa. to Scott for Ditvall. The way of it was this, that
Dnvall did not have the money to pay the ji. fa., McCord
was topay the monei/for Davall, and at the suggestion of
witness when he paid tlie money to Scott, took a transfer of
the execution to himself to keep it open for his protection.
The jury found that the execution was paid by Duvall
and anstiiined the ilU'^'nIity,
The court charged that "if McCord paid the ^. yo. for
Duvall and did not purchase i[ia Ji. fa., that would be a
payment and satisfaction of iimji.fa." and this, and that
the verdict is against hiw and without evidence to support
it, are the errors complained of. .
While it is trno that McCord conld not purchase thejt.
fa. (rom Scott, and Scutt could not eell and transfer it t(i
him so as to divest the title of the plaintiff in e.\ccution,
Code, §3598, yet it ie oijiially true that Duvall could pay it
off to Scott, the attorney of record, and that would satisfy
the^/fi., and what Davall could do himself, he could do
by another as hia agent ; and if Ills agent paid t]vafi.f'i. for
him, and waii engaged t<i do that thing, and in doing so
went beyond the scope of his authority and did with Scott
an iUcgal thing in buying the ^. /a. and having it trana-
SUPREME COURT OF GEORGIA.
ferred, Duvall ie not bonnd by the illegal part of the bnsi-
iiess. Tlie effect, however, of McCord'a evidence and tLat
of the others present, in that lie did not buy tlie eseention
hut satisfied it as Boon aa Duvall paid him back hie money,
and that was before the plaintiff asserted dominion agnin
over it and pressed it for collection. If Dnvall or the
plaintiff is to suffer from the failure of Scott to do his duly
in not paying over the money and in transferriufr tlie exe-
cution, the plaintiff who made Scott his collecting officer,
and put it in his power to do the wrong, ought to Buffer
lather than Duvall be made to pay the money twice.
Besides, who knows whether the plaintiff got the money
and thereby ratified the act of Scott! Scott's month is
closed in death; and the other pa^ty, his client, ought not
to be licard to say, especially after such a lapse of time,
that the money was not received. The plaintiff, a corpora-
tion, shows that it was not received only by a book-keeper,
and that only to the best of the book-keeper's knowledj^
and belief. Payment to the attorney of record is payment
to the plaintiff in j?.ya., and the presumption is that the
phuntiff got it, so far as third persons who deal with the at-
torney are concerned ; and after Scott is dead and McCord
Jiaa paid the execution off for Duvall, and Duvall has paid
liirn back just what he paid for him, and after snch a lapse
uf time— about six years — it is, in my judgment, ineqin'fa-
hie to allow this recovery from Duvall and coerce bim,
uniler mere shadowy forms of law, withont substance that
I can see, to pay the debt twice, to the plaintiff's own attor-
ney of record once, and to the plaintiff now,
I think thnt the true issue was presented substantially to
the jury, to-wit, was this payment by MeCord made for
Duvall, or did he purchase the^./o. for himself ; that the
jury decided this issue of fact that it was paid for Dnvall ;
that there is evidence to support the finding ; that the pre-
siding judge approved it; and that the verdict and jndg-
uicnt accord with the law, and all the equities of the case.
Therefore I dissent from the judgment of reversal.
SEPTEMBER TERM, 1879.
BoYEE v3. AusBoaN et al.
A promise in writing to pay tor a coit on ibe lat of November tliere-
after, with a slipulatioD that the vendor retain title until pikid for,
nnd yet vendees were liable to pay " in the event naiA coll should
die," is prima facie a promise to pay for Ibe colt at Ihnt, date, even
if it die before payment and while lille ia in the vendor, and not a
promUe to pay only it the [;olt should die; and therefore anonsuit
because piaiatiO did not prove tbal the colt was dead, wus error.
Coutracts. ProraisBOt; notes. Kon-euit, Before Judge
PgTTLE. HaDcock Superior Court. April Term, 1S79.
This was ao appeal case. Boyer eued Ausbiirn et al. on
the written iitstrmnent set out in tlie opinion. On the trial
he introduced it, and closed. The court granted a non-Buit,
and he excepted.
J. T, Jobd&n; F. H. Nbavt, for plaintiff in error.
&EABOBN RKitAB, foF defendants.
Jackson, Justice.
The sole qnestion is, was the Donsnit properiy awarded }
That turns on tlie constriiction of the contract sued. That
coiitruct is in these words :
■' By the first day of November, 1878, we promiee to pay Jasper J.
Boyer or bearer sixly-flva dollarB tor one bay stallion colt, named
Uark. about two yenrs old. the title to said colt remaining in said
jMper J. Boyer uniil the purchase money is paid in full, but our lia-
bility ia to pay the above amount in tbe event said colt sboutd die."
This paper being introduced, the court iield that unless
the plaintifE showed tliat the colt was dead, there could be
no recovery, and non-suited tbe plaintiff.
Prima yacie, tbe nieaning of the paper is, that on the
flret iay of NovL-iiiber tbe money due should be paid,
^oi^h the title was retained by tlie plaintiff to the colt,
and to avoid trouble in the event the colt died before the
'fl
272 SUPREME COURT OF GEORGIA.
Neal tl ai. tu. Ths BUlrr.
rnoin^y was paid, and while title was Etill in the vendor, the
venileee agreed to paj for liiin notwitliBtandinglheyliad do
title. The consideration of the promise wafl llie deliverv
ami present use of the colt, and the vendor at his optiop
eoiilil recover the money on the Ist of Novemlier, wliether
the cult was dead or alive, or if alive, on refusal to pay for
him itt that date he could recover him in tmver.
It it> true that there may be aome ambiguity in the paper,
and if BO it may be explained by parol ; but on ita face it
EuuTiis to lis to mean as indicated above, though awkwardly
expressed. Whether ambiguous or not, as it means on its
face a promise to pay for the colt, dead or alive, on the first
of November, the court should not have granted 'he non-
suit; ae the note itself was ^rima_/actV, at least, an absolute
promise to pay on suflicient consideration.
Judgment revereed.
Neal et at. vs. Thk State of Geobqia.
1. Fi-r one ot the Jurors to retire wiib leuve ot ILe court and gnsrilod
1)} II bailiO. to nllend a call of oature, his fellaws rcinaiaiD); in Ibc
box. and be being absent no longer tbao oece y s do nn 1«gal
or irregular aeparatioD ot the Jury engaged in b a of a apilsl
2. Wlien the priaoner'a counsel and the presid ni, udge \Be at io
what vaa stated or omitted in cbarging the Ju e und a andii;
and recollection of the judge must govern in he up eme cou L
d. Tbe verdict was warranted by the evidence.
Criminal law. Jury, Practice in tbe Superior Court.
Practice in tbe Supreme Court. New trial. Before Judge
Flemino. Bryan Superior Court, April Term, 1S7!I.
Neal and JacksoD were placed upon trial for the murder
of out; Houston, alleged to have been committed on February
S, 1879. They pleaded not guilty. The evidence presented,
in substance, the following facts : ■
SEPTEMBER TERM, 1879. 378
Neal et al.-t. Tho State.
The defendants, deceased and other nugroes, were at the
store of Miller, Brady & Co., in Bryan county, on the ni^ht
of February let, 1879. Neal was the nephew of Houston.
One Snyder lost some money in the store, and deceased
used language tending to impute the theft to Neal. This
called forth angry language from Neal, and a slight alter-
cation ensued, which was quickly settled. After the store
was closed, Neal fired oflE two barrels of his pistol in close
proximity to deceased, but with no intention of hitting him,
bat with the apparent purpose of frightening him. De-
ceased struck at Neal with his gun, and broke the barrel
off. As the parties went away from the store Neal
was heard to say to deceased " G — d d — n you, I will kill
you to night," to which, one witness testified, deceased re-
plied, " No, I have done nothing for you to kill me."
Jackson was heard to say "he could whip all of these men,
he had killed one man and would kill another." The de-
fendants, deceased and a man named Bunion, were left to-
gether on the road, the other negroes going off to their
various homes, but some of them heard two pistol shots
after the separation, the sound coming from the direction
of the spot where the body of the deceased was subse-
quently found.
Bunion testified, in brief, as follows : Going on in the
road, Neal said to deceased, '* do you say I stole Snyder's
money?" Deceased replied, '\ye8." Neal then shot him in
the head. "He shot four times, twice at the store and
three times on the road. Jackson damned at deceased.
They did not see me." Deceased had basket on his arm.
Jackson took the gun and knocked deceased on the head.
They both beat him until he was dead, and then went off.
Witness was hid in the bushes. Neal fired five times.
The body of deceased was discovered at the point indi-
cated by Bunion. He had been shot and badly beaten.
There were evidences of a scufile all around the place.
When about to be arrested Neal drew a pistol, and Jackson
started to run. Blood was on Neal's shirt and five of the
six barrels of his pistol had been discharged.
SUPREME COURT OF GEOfiGIA.
The jury found the defendants guilty. They moved for
a new triul npon the followir.g groands, to-wit:
1. Because during the argument of defendants' counsel,
the coiu't pGntiiCtcd one of the jurors to leave the court-
house without any other juror trying the case being with
him.
2. Alleged error in charging the jnry, but not ceiti&ed
by the presiding judge.
3. Because the verdict was contrary to law, evidence, and
the cliargo of the court.
In reference to the iii-st gronnd it ww shown tliat tlic
jnror, by permission of the conrt, left the other members of
the panel, in charge of a bailiff, for the pnrpoeeof respond-
ing to a call of nature : that he spoke to no one during his
absence, the bailiff being all the time in close proximity to
him ; that the bailiff only spoke to him to caution him
against speaking to any one.
The motion was ovcrtuled, and defendant excepted.
W. W, Fbaseu; J. A, Brannvh, for plaintiff i» error.
A. B. tiMiTii, solicitor-general, for the state.
Blkcklky, Justice.
1. In Monrmvg. Tfte State, 5 Ga., fiC (10), it was laid
down and the rnJo has been followed in many subsequent
cases, that where there lias been an improper separation of
the jury during the trial, the prisoner, if fonrd guilty, is
entiiJed to the benefit of the presumption that the irregu-
larity was hurtful Co him, the onug being upon the slate to
show, l>eyond a reasomblo doubt, that it did him no injury.
But must we therefore hold that a like presumption arises
out of a proper separation^ — proper in time, manner and
cirGunistances ( Surely not. And what can be more fit
than for tliu court to send out a juror, attended by a bailiff,
when he is under a stress of nature which oivilizcd man re-
gards as a sunmions to retire! A coruparison of the
various possible metliode of meeting and dealing with snoh
SEPTEMBER TERM, 1879. 275
Waxelbftom A Bro. vs. Pdschal & He idlngsf elder.
an exigency had better be left to silent meditation than
discussed here with needless realism. It is enough if those
who may become interested in the subject will form a men-
tal picture of the situation, and contemplate it for them-
selves. It is inferable from the record that the absence of
the juror was not for a longer time than was necessary, and
he was under the immediate watch and guard of the bailiff
all the wliile. The facts are altogether unlike those of any
of the cases cited by the conUvSel for the plaintiffs in error,
the citations being 10 Ga., 512 (10); 41 /J., 527 (2); 45
lb., 225 (8) ; 47 /*., 5»8 (5), and 56 /i., 653. Compare
14 Oa.^ 8 (4). The separation discussed in these authorities
is improper separation, not a retirement rendered necessary
by habits of decency, expressly authorized by the court,
and guarded by a sworn otScer.
2. The record shows a difference of underetanding or
recollection between the counsel and the presiding judge,
as to the terms of the court's charge to the jury on the sub-
ject of circumstantial evidence. Upon such a question the
judge is, of course, the better authority in this court.
3. The sufficiency of the evidence to uphold a conviction
depends in a great degree upon the credibility of the wit-
ness, Bunion. On the facts in the record we cannot hold,
as matter of law, that the jury had no right to believe him.
We feel that there is no alternative but to let their finding
prevail.
• Judgment affirmed.
Waxelbaum & Brother vs. Paschal & Heidingsfelder,
[WARinEB, Chief JoBtlee, being engaged in presiding over the senate organized as a coon
of impeachment, did not sit in this case.]
An affidavit to sue out attachment for purchase money, must so de-
scribe the property for which the debt was created, and in posses-
sion of the debtor, iis to certify to the officer making the levy what
property he is authorized to seize and bell.
SUPREME COURT OF GEORGIA.
.dttaclinieiits. Before Judge Crawford. Talbot Supe-
rior Court. Marcli Term, 1SY9.
The only quealion in this case \a upon the sufficiency of
the following afKdavit for attacliaient :
"Gkorqia— Tnllml County:
''JoBepb Wnxclbnum, one of Ibe firm of 8. Woxclbnum & Brolhcr, &
flnn composed t>f Solomon Waxelbaiim iSi Joseph Wuxcllmuni, comef
before tbe undereigned, and on OHih smtli (but Pil.sc1i]i1 &■ Hi.Mdlng«
feldcr, of said cuunty, a firm composed of Wrlliiim D Pusrliul ±
Phillip Heidi ngsf elder, nre iuiltbted lo deponeui's Arm in ilie aam o(
aloe huDdred and ninely-oDc -Ue dollars (f991.6T|. Said iDdebtt-dursi
wa* created by tlio pvircbnse from deponcol's firm lij sFiid Pasclinl *
Heidi ngafelder of goods and tnerclinndiBe aa shown liy the nnneicd
bills, murlied from onmber one (1] to nine (0) inclusive. &iid gwd^
and mercbandiao iiru not paid for, but the debt f'lr the anmeisno*
due to depODCnl'ij firm, except 4330 09, which will be due m ta culj
dale. Baid goodx and nierchnndlse, except certain qunnliliesof Ilic
same disposed of by said Piiscbid & Hcidingsf elder, are now in iLe
possession of Snid Paacbid i& H e id ingsf elder. The goods nnd mer-
chandlae thus iti Ibu possession of Haid Pascbal & Hcidiog^feliler con-
st ilute a liirge nmount of Ibo goods and merchandise set out inlaid
bills numbered frum 1 to 9, and are easily capable of identifies! ioD b; Uic
proprietary marks and labels of depiment'a firm, and deponent refer*
to said bills as a complete description of said goods and niGrchsodiac,
and hereby mskus them a part of this affldavil."
The bills referred to are annexed to the affidavit, em-
bracing such items as : IB. F. B. yards, 10 a. osiialinrgB, 1"
Prattville oaiiaburgs, etc., etc.
The attachment was levied on the goods thus described,
and defendants replevied.
On the hearinfj; tbe court dismissed the affidavit fur want
of sufficiency in tbe description of tbe goods in defendatilfi
possession, to which plaintiffs excepled.
Hill & Hakris, for plaintiffs in error.
Willis & Willis; J. M. Mathews, for defendaiila.
Jackson, Justice.
The trouble with the plaintiffs' affidavit is that the de-
Bcriptioa of tbe goods is not sucb as to enable the sbcrit! to
^
SEPTEMBER TERM, 1879.
iclbiam t Bro. tu. Paachal A Hrldlnisf elder.
ascertain which his process anthorizes him to geize and sell.
The affidavit does not show what goods, liablb to atlaehment,
are in the poescPBion of defendants, or were in their posses-
6ion wlien the affidavit was made and the seizure by the
sheriff directed. What particular goods was the officer
empowered to seize and sell ? There is a general ennniera-
tion of tlie goods sold by plaintiffs to defendants in certain
exhibits, but these exhibits show nothing except tlie char-
acter of the goods which are in the exliibits and in nowise dia-
tinguishcs tiiem from the character of similar goods alt over
tbe conntry. It is true that the affidavit says that the goods
are easily capable of identification "by the proprietary
marks and labels of deponent's firm ;" but what these
marks and labels are does not appear; and when we look
to the exhibits, there are no marks or labels of any sort on
any of the goods therein exhibited. The conrt does not
jadicially take knowledge of what are the proprietary
marks or labels of any firm of merchants, or of any mer-
chant, even if something appeared on the goods, as exhil)-
ited and referred to "as a complete description of Eaid
goods and merchandise," purporting to bo marks and labels,
bnt nothing of the kind appears.
Bnt if this were all right, a remnant only is embraced in
the affidavit, and what that remnant is no roan can tell, for
it is not ducseriljL'd. Whether it be one or another kind of
the virions merchiindise sold, is not set ont. It is simply
Mid in the affidavit that "said goods and merchandise, ex-
cept certain qiiantilies of the same disposed of by said
Paschal & Heiding^f elder, are now in the possession of
atid Paschal & lipid ingsfelder;" but what has been disposed
of, or what is left, is nowliere attempted to bo described in
character or nature, or mark or label of any sort, so that
what the precept directs the officer to seize, as in the pos-
eeasion of defendants, is not dewribed. This seems essen-
tial under the statute. The remedy of attachment for
pnrclmse money is only given "where the debtor who
created such debt ie in the possession of the property,"
SUPREME COURT OF GEORGIA.
US, eiecntor, «. HendeiBmi.
Code, §3293 ; and the officer can levy *■ only on the prop-
erty described^i esAA affidavit," Code, §3K9s. What
property for which tbia debt was created was in the posaee-
sion of the defendants when this process was issued docs
not appear, and cannot be ascertained from this affidavit
and the exhibits thereto — and the prijcesB refers to the affi-
davit for the description thereof-
It IB clear, therefore, that no error was committed in dis-
miasiuf^ tlie attachment. See also, Joseph (& Bro. va. Stetn,
52 Ga., 332 ; Sruce vs. Conyers, 54 Oa., 078.
Judgment affirmed.
Siu", executor, vs. Hkndbrson.
Wben tbe oote sued upoa reciles thnt it was given fur lanil sold and
conveyed, without specifyiDg tlie quantity, the terms of the con-
veyance, or at least their substance, must appear in order to make
a case m behalf of, the defendxut for tbe iippuilionment of the price
on account of n a alleged fraudulent deflctL-ucy in the quantity of
laud. The conveyance referred to in the note must be introduced
In evidence If practicable, and if not, tbe non-producllon of the
iQBtriiment must be accounted for, and its coutentB eslaUliahed bj
aecoDdury evidence. la tbis caae, the evidence was UQt full enough
to warrant the charge of tbe court or tlie verdict, aeitbcr the deed
nor ilB contents being before tbe Jury.
Vendor and purchaser. Contracts. Evidence. New
trial. Before Judge Speep. Newton SnpcHor Court,
March Term, 1879.
BiiDS, as executor of Harris, brought complaint against
Henderson on the following note :
■'11,500.1)0.
Due John Harris, or bearer, $1.SOO.OO, value received, for land this
day sold and conveyed by John Uarrig to Jobo P. Henderson.
(Signed) J. F. Hbkdersoh.
December 14, 1877."
^^iggl^ tbeieoo amounting to |900.00.
SEPTEMBER TERM, 1879.
Sims, eiecnto', m. Hendemon.
The defendant pleitded, in substance, that ho had pur-
cliaeed the land referred to in the note froAi plaintifFe tes-
tator as containing one hundred and seventy acres, at $10.00
per acre, giving two notes therefor, one for $:i00.00 and
the other for JI,500.00, tliat sued on ; that he had paid the
first in fnll, and made the payment credited on the second ;
that testator represented the land as lieing one hundred and
seventy acres, and he purchased on the faith of such rep-
resentation ; that he had subsequently discovered, by bnr-
vey, that there were hnt one hundred and twenty-seven and
one-lialf acres in the tract, tiiat therefore he did not get by
forty-two and one-Iialf acres as much land as he paid for.
Whereupon ho asks au apportionment of the price, and tbat
a credit of $426.00 be entered on the note.
The testimony sliowed clearly the deficiency in the amount
of land which defendant claimed he had bought, and the
main point of contest was as to whether testator bad sold
by the tract or by the acre. Upon this the evidence was
conflicting ; also as to the repre-entations of area alleged to
have been made by testator. Neither the deed to defend-
ant was introduced, its aii.-fnro accounted for, nor its eon-
tents proven.
Tlie jury, by their verdict, allowed the defendant the
credit asked. The pliiiutiff ujoved for a new trial upon the
following, among other grounds ;
1. Because the court erre<l in charging the jury as fol-
lows: "If you believe that testator wilfully and fraudu-
lently represented to the defendant that tliere were one
liniidrcd and seventy acres in said tract or body of land,
Arid sold it lo defendant as sucli, and ho knew at the time
thftt there were not one hnndrcil and seventy acres, but a
innch less quantity, then you will be antharized to appor-
tion the deficiency, if there be a deficiency proven, and
CWsdit the note sned on, if you believe it was given for this
land, at its date, with the aiiumnt of said deficiency."
2. litfcaueo the court erred ill charging as follows: "So
280 SUPREME COURT OF GEUUGIA.
Slme, fiecQtor.o. Hcnilcraon.
if, in the absencb of proof of wilful raiaiiipre^entution by
the testator as to the immlier of acres, you believe the
land wae sold for one hundred and se^'euty aeres, and you
find, under the evidence, that the deficiency was so gross aa
to justify thu suspicion of wilful deception, or inirtakc
amoiinttiig to fraud, in this court the duflciency is appor-
tionable, and you can allow the anionnt of the deficiency
ae a credit on said note, and find onlj' the bahmce due with
interest."
3. Because the verdict was contrary to law, evidence, etc.
Tlie motion was overruled and plaintiff excepted.
Clakk & Pack, for phiintiff in error.
Emmett WoMinK, for defcndant.
BLECKr.KT, Justice.
s a conveyance.
The note shows on its fucc that there v
The complaint of the debtor, Henderson, is that he did not
get as much land as he bought. Aa there was a convey-
ance, that is the higliest and best evidence of what land was
bought, and the description given of the premises in that
instrument is too important not to receive attention in this
controversy. It may be that the terms of the contract ;i3
reduced to writing in the deed will be foimd to correspond
with tJie subsequent survey. The natural starting point of
the whole investigation is to see what the deed says. There
can he no proper trial of the case without putting the deed
in evidence if practicable, or accounting duly for its non-
production, and then proving its contents by secondary evi-
dence. Until a showing is made to the contrary, the pre-
sumption is tiiat the vendee luis the deed and can produce
it. In the absence of this instrument and of all evidence
of its contents, there was not enough testimony before the
jury to warrant the charge which the court gave on the
subject of reducing the debt evidenced by the note, nor to
justify the verdict which the jury rendered. The note and
SEPTEMUER TERM, 1879.
tlie eonvejance to which it refers ought to be broiiglit
together and looked at as related writings, and then there
can be intcliigcnt nse made of the facts wliieh rest in parol.
There onglit to be a new trial.
Judgment reversed.
FORBTTII V9. PRBEB, IlLOR8 & CoMFANY.
[ff j>9iii, Chief jDftice. btlog engiged in prHldli^g oier the MDitf orgnnlied u a
Hinrt uf Imp'aehiiienl. did not tit Id UiIb cue.]
Tbe RClnt 1ST3, cnireclly conslrui'd, docs not in any cane extend the
lime For bringing cnsee to tbls court on writ of error beyond thirty
dnja from Ihc ndJoHrnment of ilie miperior court, anil ii bill of ex-
cepllimH not sigacil nnil cerliliiil within thirty days from the ad-
journment ot llic tourt, will lie ■lismiaaed.
Praolice in the Siiprcine Cinirt. Septeinber Tertn, 1879.
Ki'ported in tin.' opinion.
C. J. TuoKNTos, for pbintitf in error.
pDitTKR Inokam, for defcndaTits.
JjkouoM, Jnetice.
On the I2th of February, 1879, the enpcrior court of
Uu»>o;;ee onnly ndjo-jriidd. On the 17th of March, 1870,
tliit) bill of uxetf ptions was signed and certified, so that more
than thirty days fi-oin the adjournment had elapsed
Wore (hs certitivale nf the hill of exceptions by the
jndgo of the tii|>enor couit, and therefore, ordinarily,
^ bill of vxeeptions would be dismissed an the gen-
eral kw requires and as tliiti court has very often ruled.
It b sought, hnwc-ver, to take this case out of the gen-
enl rule by force of the act of 1875, which requires the
Inll of «xceptiona to bocertiticd within sixty days^'rom tht
II
282 SUPREME COURT OF GEORGIA.
Pon^lh Of. I'reer, IllgBi J Co.
date of the Judgment complained of, where the court site
longer thaD thirty days, and in this case tliecourteat lon^r
tlian thirty days and the bill of exceptions was certified
within sixty days from the adjournment ae well as from the
refusal of the new trial. Snp. to Code, §25.
But the act of lSTf> must be construed in harmony with
the old law on the same subject and the general spirit
of the constitution and laws in regard to expediting the
trial of ca^es in this court. Its purpose was not to post-
pone the time of bringing writs of error here, bnt to expe-
dite that time. If the court sits longer than thirty days, it
declares substantially that the litigant shall not watt until
the thirty days have expired after adjournment, bnt he
shall move within sixty days from the date of the decision
complained of, even if ho has to move wilkin term or he-
fore the thirty daye allowed by ike old law has elapsed.
But the legislature did not mean that if the court sat six
months and on the last day of the session a judgment wae
rendered, the party complaining of it sliould have sixty
days to move instead of thirty. The reason and spirit of
the act of 1S75, as well as the policy of expediting the final
decision of suits to be found in the constitutions of this
state, and in the act organizing ibis court, all militate against
such a conscruction.
We hold, therefore, that in all cases the bill of excep-
tions must be tendered within tliirty days of the adjourn-
ment of the lower court, to the judge thereof ; and in cases
where the session is protracted beyond thirty days from the
date of its commencement, the party must move within
sixty days from the date of that judgment of which he com-
plains, even if he has to move during term or before the
thirty days after adjournment have passed ; but in no case
is he permitted to wait longer than thirty dayg after the
court adjourns.
The plaintifi in error here having waited longer than
thirty days after the court had adjouined, the writ of error
mtiBt be dismissed.
SEPTEMBEU TERM, 1879. 283
Nuyes vf. Rsjr.
We remark further that thirty days is in all conscience
long enough to require the circuit judge to keep the his-
tory of the case in his head so as to certify its facts, and if
the law were altered at all in this respect, in our judgment,
it would be better policy to- curtail the time within which
parties should be required to move to set aside verdicts and
judgments and to appeal to higher tribunals, and thus pro-
crastinate litigation, than to extend that time.
Writ of error dismissed.
Notes ««. Ra.t.
When land incumbered by mortgage Is sold by the mortgagor at full
value, bond for titles given, aod a negotiable note taken for the
whole price, and a third person, with notice of hII the facts, buys
thQ note before due, at its value less the amount of the mortgage,
and afterwards buys in the land at the mortgage sale, such third
person cannot hold on to the land as his own and also collect the
note, or the balance thereof after deducting what the land brought
at the mortgage sale. He cannot do this although the bond for
titles contained a direction from the obligor to the obligee to dis.
charge the mortgage out of the price covered by the note, and
although the obligee neither complied with this direction nor ten-
dered payment of the note at maturity, nor afterwards, so as to
supply a fund to protect the land. On the facts in evidence, the
holder of the note is in no better situation than if he were himself
the payee thereof, the mortgagor, the maker of the bond for titles
and the purchaser at the mortgage sale.
Bond for title. Mortgage. Negotiable instruments.
Before Judge Underwood. Polk Superior Court. Febru-
ary Term, 1879.
On November 29th, 1876, Mattie C. Carroll agreed to sell
to Ray a lot of land for $500.00, to^k his negotiable note
for that sum, due November Ist, 1877, bearing interest
from date, and executed her bond for title containing the
following provisions :
*' Now if the said Mattie 0. Carroll ahall convey, or cause
vst-is
284 SUPREME COURT OF GEORGIA.
Noyes V9. Ray.
to be conveyed, to the said Linton O. Ray, or to such uses
and to sacli persons as he may appoint or direct, free from
all mortgages or incumbrances, by such conveyance as the
said Linton G. liay may reasonably demand, upon the pay-
ment by the said Linton G. Ray of bis promissory note, so
given by him as aforesaid as the consideration for the pur-
chase of said house and lot, then this bond to be void^ else
to remain of full force. I, the said Mattie C. Carroll,
hereby direct that the said Linton G. Ray may first pay off
and take up my promissory note given to A. Huntington,
March 10th, 187(1, for $150.00, and bearing interest at the
rate of 12 per cent, per annum, dne January let, 1877, said
note being secured by moitgage deed executed on March
10th, 1876, for the better securing the payment of said note.
Said mortgage covers the aforesaid descnbed premises."
Whilst the note given by Ray for the land was held by
Mrs. Carroll, the payee, he paid abont $79.00 thereon. She
then, on January 5th, 1877, transferred it to Noyes, he pay-
ing about $270.00 therefor, the amount of the credits and
of the debt to Huntington, with interest, referred to in the
bond, being deducted. He took with full notice of the
mortgage, the bond and all its terms. Subsequently the
morrgjige was foreclosed, and the property sold, Noyes be-
coming the purchaser for $220.00. This amount he cred-
ited on the liay note. The latter being dispossessed by the
sale, declined to make any further payment, and Noyes
brought suit for the balance. The jury found for the de-
fendant. Noves moved for a new trial because the verdict
m
was contrary to the evidence and the law. The motion
was overruled, and he excepted.
Blanck & Kino, by E. N. Broyles, for plaintiff in error.
No appearance for defendant.
Bleckley, Justice.
Certain land belonged to Mra. Carroll. Huntington held
SEPTEMBER TERM, 1879. 285
Noyes m. Ray.
a niortoTHSre on it to secure a debt which she owed him.
Mrs. Carroll sold the land for full valne to Ray, taking his
netrotiable note for the price, and giving him her bond for
titles. In the bond she referred to the mortgage and
directed Ray to pay it off, giving the direction in a way to
imply that so much of the price included in the note as was
neoes^sary to discharge Ihe mortga^^e should or might be so
applied by Ray. Mrs. Carroll sold and transferred the note
to Noyes, who paid for it, not full value, but its value less
the mortgage debt. Noyes bought with notice of the
mortgage and of all the facts which control Ray's rights,
whatever they are, as against Mrs. Carroll. The mortgage
was not paid. It was foreclosed, and the land was sold
under the judgment of foreclosure, Noyes being the pur-
cha>er. He, retaining the land thus acquired, brought suit
a^iiinst Ray upon the note, his claim being for the balance
afer deducting what the land sold for at the mortgage sale.
The question is, can he recover?
He stands in Mrs. Carroll'.- shoes, havin;2r taken the note
from her with notice of all the facts. The land was sold
away from Ray, not as his property or to pay his debt, but
ai* Mrs. Carroll's property and to pay her debt. Suppose
she had not transferred the note, and liad herself purchased
the land when sold as her property at the mortgage sale,
and then dispossessed Ray, could she have collected any
part of the note without restoring the consideration for
which it was given, that is, the land? Surely not. We
can see no proprietj* in making the amount which the land
brought at the sale the measure of Ray's credit on the note.
If the land had been sold as his, under process against him,
what it brought would have been his money ; but as it was
sold under a mortgage ^fi. fa. against Mrs. Carroll, as her
property, what it brought was Mrs. Carroll's money, and
there is no reason for treating that money as standing in
lien of the land, relatively to Ray. What he stipulated to
Ret was the land, free from incumbrances, not the proceeds
of a sale of the land under an incumbrance. The only
SUPREME COURT OF GEORGIA.
Jackson, Justice. ,
The sole question in tliia case is, can the city of Marieila,
since the adoption of the constitution of 1877, make a nev
debt except aa provided for in that constitution ? We
think not, under the plain provisions of (hat fundamental
law.
In the 7th section of tlie 7th article of the constitation
of 1877, these words appear : " and no such conntj, muni-
cipality, or division, shall incur any new del>t, except for*
temporary loan or loans to supply casual deficisnctes of rev-
enue, not to exceed one-lifth of one per centum of theassessed
value of the taxable property therein, without theaiacni of
two-thirds of the qualified voters thereof at an dectionfor
that purpose to be held as may lie prescribed by law; but any
city, the debt of which does not exceed seven per cent, of
the aeeeesed value of the taxable property at the time of the
adoption of this constitution, may be authorized by law to
increase, at any time, the amount of said debt three per
centum upon such assessed valuation." It is not pretended
that any law has been passed authorizing snch increase of
debt, or to hold such an election as is contemplated in the
above cited section ; and the election actually held did not
comply with the constitution. So that it is an effort on the
part of this city to make a new debt, incurred to procure a
steam iire engine in the place of an old hand engiiie,at i
considerable cost, without complying with that provision of
oar present constitution. It cannot be done.
The provision is inserted therein to stop, to dam up, this
deluge of city and county debts which is flooding the conntr;,
and sinking the best interests of the people. It is made tiie
duty of the judiciary to give the provision full efiect
Section 4, par. 2, art. 1 of constitution 1S77.
Citizens who must pay the taxes unconstitutionally Uidi
if not arrested, have the right to enjoin the collection, anJ
the chanuellor should have issued the writ at their prater.
Judgment reversed.
SEPTEMBER TERM, 1879. 289
Moreland tw. Stephens, eheriil, et at.
MoRELAND ve. Strphens, sheriff, et al,
1. There being no provision of law for granting a new trial upon mo-
tion tbcrefor, on a matter referred in term by consent of parties
for decision by the judge without a Jury in vacation, the denial of
a new trial in such a case is not error.
S. When error is assigned upon the decision of the judge refusing a
new trial, and there is no other assignment of error in the bill of
exceptions, nothing is for review but the one point, and if for any
reason the new trial was properly refused, the judgment will be
sustained.
New trial. Courts. Vacation. Before Judge Buchanan.
Heard County. At Chambers. January 27, 1879.
Moreland ruled Stephens, the sheriff, to show cause why
he should not pay over to him certain moneys in his hands
for distribution. Whitaker also claimed the fund upon an
execution held by him. At the September term, 1878, an
order was taken by consent, providing for the hearing of
the issues thus formed by the judge in vacation. He ad-
judged that the sum in controversy be paid out pro rata to
the two executions. Moreland moved for a new trial upon
several grounds. It was overruled and he excepted, the
sole error assigned being the refusal of such motion.
Spebb & Spebb, by brief, for plaintiff in error.
0. W. Mabrt, for defendants.
Blecklbt, Justice.
1. The remedy given by law to correct the error of a
judge of the superior court ''in any matter heard at cham-
bers," is a bill of exceptions. Code, §4251. And a motion
for a new trial is not appropriate. Lester vs, Johnson^ this
term,
2. In the present case, there was no writ of error directly
upon the decision made by the judge at chambers disposing
]
m
290 SUPKEME COURT OF GEORGIA.
Cmtj <n. Tba Hhjih sdiI Alderawn of SiTuintib.
of the moiie; npon tho rule against the Ehunff ; tliat decis-
ion wae not excepted to and a bill of exceptions tendered
and signed, bnt the diesati^fied partj made :; motion for a
new trial, and the overniiing of that motion is the enhject
matter of the writ of error now before iis, and its only
Buhjeet matt«r. No other error ia assigned. Now, a motion
for a new trial not being the remedy to ruaeh any ei ror
which the judge may have committed in his jndginent die-
posing of the money, it is certain that the rernsat to grant
a new trial was not erroncone. This being a sufficient rea"
eon for the decision of the judge now under review, it is
ncedlesH to look for any other.
Judgment affirmed.
CnRKY vs. The Matob and Aldeemen of Savannah.
TLe properly of k muoicfpa) corporation in Ibe use of llie muniripnlity
for ihe pultlic, or liuld for future uae for lk« public, ia not subjcci
to levy and sale under e:
Municipal corporations. Levy and eale. Before Judge
Tuui'KiNB. Chatham Superior Cnnrt. October Term, 1878.
Several justice conrt _fi. Jos. in favor of Curry against
the Mayor, etc., of Savannah, were levied on a house and
lot. Defendant filed an affidavit of illegaliiy to each Ji.j'a.,
one ground of illegality being that defendant is a mn-
nieipal corporation " and owns the said property levied on
in that capacity and in the performance of its functions in
the administration of the powers of government delegated
to it; and so the deponent says that the said land is not
auliject to levy and sale under execntiou." On the hearing
before the magiatrate, he rendered jndgmeiit for the plain-
tiff, and defendant appealed. In the superior court plaintiff
filed a traveree to the affidavits, but it was dismissed as
coining too late. All the cases were heard together. By
SEPTEMBER TEEM, 1879.
a. The Major »>d Ald«r<
consent the affidavit of illegality was amended by adding
that the property levied on " liad l>cen used for a place for
keeping a tiie-engine and appamtiie under the ordinancee
of said city, and were at tlie date of levy held, and likely
to be need, for such municipal piirpoeee agtiin, but were not
in such actual uee nor need in any manner at the moment of
levy,"
Plaiiitifi demurred to the amended aRidavit; the de-
murrer wuB overriild, and the levies dismiEHed. Plaintiff
excepted.
W. W, MoNTGOMKKT, by brief, for plaintiff in error,
cited " Reporter," vol. VII, p. 500 ; Dillon on Mun. Corps.,
§§-lJ6, 616 a, and note, «8« ; 33 La. An., 61 : 17 Wallace,
332-3-4; Code, §§4856, 4S57.
W, D. Harden, for defendant, cited. Code, §§1672,
4S56-7; Dillon on Mini. Corps , gg4J6. H'O, 39, 64, <i5 anJ
note, 715; "Reporter," vol. VII., p. 500; 34 N. J., 131,
133.
Jackson, Justice,
Tile sole fjnostion is, wlicilier a certain lot and tenement
formerly in nee for a tire-fiigine by the city authorities and
■till held by them for future use in like manner and pur.
poee, is liable to be levied upon and eold by the sheriff
nnder a ^.,/*a. issnud upon a uommun law judgment?
We think that all proptrty held by the city authorities
for llie public use. health or enjoyment of the people of
the city, is not so liable to lovy and sale. Further, we are
of the opinion that all property of ovary kind held by the
manicipality is presnmplively for the public use, and whilst
perhaps tlie presumption in;iy be overcome on proof that
the corporation is holdinj; it for other purposes, as a mere
iDveetment to reap protite and save taxes, and with no olte-
rior purpose lo apply the investment to the use or enjoy-
ment of the piihlic thcria!'tLr, yet the oniM would be upon
SUPREME COURT OF GEORGIA.
the plaintiff in execation to make that prcKif. If made,
then the property eo held with no purpose to nse it for the
public at the time of the levy or thereafter, might be sub-
jected to pay the debt by that proeese.
See Adams et al. vs. City of Home, 59 ffa.,765; Fleiskel
(fe Kimsey et al. vn. Hightower et al., last term.
Tlie Maryland case goes even further and exempts all
property iield by a mnnioipality for any purpose. Darlinp;
v8. City of Baltimore, 49 Md., Law Reporter, vol. VII,
p. fiOO.
Our opinion given above goes far enough on the same
line for all practical purposes and is, we think, sound and
reasonable.
Judgment affirmed.
Hkndkreon vs. Hill.
After a claimant has liligaled t'irough a claim case and Ibe property
hns been found subject, and a jiidicmunt of afttrmnnce has been
reDd>-red by (lie supreme court, be is concluded as to ibe validity and
binding force of the nriginnl judgment between the creditor and
tlie debtor, on wliich ilio levy rested, and will not be heird to ques-
tion tbe samo by motion or otbcrwise.
Claim. Judgment. Before Judge Lester. Paulding
Superior Court. August Adjourned Term, 1878.
Henderson, a purchaser of property from Roberts, against
whom Hill held a judgment, moved to sot aside the same
upon the following gronnda:
1. Because there was no verdiet of a jury upon wliich
to enter up any legal judgment for the plaintiff, a plea
liaving been regularly filed at tbe Mai-ch term, 1868, the
appearance term.
2. Because there was no judgment rendered by the court
as required by the constitution and laws of Geoi'gia.
He also moved to set a^ide the verdict and judgment
SEPTEMBER TERM, 1879. 298
Hendcreon vs. Hill.
finding the property subject in a claim case arising upon a
levy of Hill's execution against Roberts upon the property
purchased by him, and in which he was the claimant. This
motion was based upon the following grounds :
1. Because the judgment upon which the plaintiff's exe-
cution issued was dormant and void, and was so before the
lew was made.
2. Because a sale under said execution would not divest
the title of the defendant.
Hill resisted these motions upon the following grounds :
1. Because the said verdict and judgment having been
regularly rendered on the trial of the claim case on April
17th, 187(5. and having been on February 7th, 1877, on claim-
ant's motion for a new trial, sustained, wliich judgment was
affirmed in the supreme court, and such affirmance made the
judgment of this court, they cannot again be reviewed and
inquired into.
2. Because on the trial of said claim on April 17th, 1876,
said execution of plaintiff against Roberts, issued on Feb-
ruary 14th, 1S74, from a judgment rendered on February 3d,
1869, and levied on February 24th, 1874, upon the land
claimed, was tendered to claimant's counsel, and was ad-
mitted in evidence without objection ; hence said trial
having resulted in a verdict and judgment finding the prop-
erty subject, and the same having been sustained by this
court, and affirmed in the supreme court, claimant cannot
object to said Jl.fa, on account of the clerical omission of
the clerk to insert therein the day and term of the court
when said judgment was rendered, and any other irregu-
larity then patent on said fi.fa,
3. Because the judgment against Roberts is not dormant
and void, and was not when the levy was made. Judgment
was regularly rendered under an order of court on Febru-
ary 3d, 1869, the defendant having filed no issuable defense
on oath, the suit being on a promissory note. Here follows
a recital substantially as stated in the preceding ground.
The remaining grounds are covered by the above.
294 SUPREME COURT OF GEORGIA.
HenderBon vs. Hill.
Evidence was introduced sustaining the facts as stated in
the answer filed by Hill. The motions were overruled, and
Henderson excepted.
Ibwin, McClatchy & Irwin, for plaintiff in error.
J. O. Gaktkkll; Dabnuy & Fodciik, for defendant.
Bleckley, Justice.
The claim ease was finally disposed of by a judgment of
aifirmance in this court. The case is reported in 59 Ga,.
595. To say nothing of the other obstacles to the success
of the motion afterwards made to set aside the judgment
in favor of Hill against Roberts, the motion came alto-
gether too late ; for Henderson, the movant, had litigated
with Hill through the claim case, and that very judgment
was at the bottom of the levy which that case involved.
Whatever cause against its validity could now be shown,
ought to have been shown then. 63 Ga.j 224.
The motion made to set aside the verdict and judgment
finding the property subject, tliat is, the verdict &nd judg-
ment in the claim case, is beset with the same difficulty. If
indeed the plaintiff's judgment against Roberts was dor-
mant and void when the levy was made, the time to urge
it was when the claim case was upon trial. The finding of
the property subject, and adjudging that the fi^fa. proceed,
amounted to an adjudication that there was a living judg-
ment, and that the property must be sold to satisfy it«
Judgment afiirmed.
SEPTEMBER TERM, 1879. 296
Lester v», JohneOD €t al.
Lester vs. JoHNbON et al,
1. If the record shows that the judgment excepted to be right, it
matters not on what ground the superior court rested the judg-
ment.
2. Where it was ordered in term, by consent of counsel, that the
cause be heard ami determined by the presiding judge in vacation
without the intervention of a jury, with right of exception to either
party, as though tried by a jury, and where tlie case was so heard
and determined in vacation, and entered on the minutes nunc pro
tune at the next term of the court, and counsel then filed a motion
for a new trial made before the judge in vacation some time after
the decision of the case though within thirty days thereafter, and
the court dismissed the motion because it was too late :
Hefd, that the party complaining of the decision so made in vacation
had no legal right to make a motion for a new trial of the case, but
that his remedy was by bill of exceptions to this court from the
judgment of the judge made in vacation, and that therefore the
judgment dismissing the motion for a new trial is right.
Practice in the. Supreme Court. Judgment, Practice
in the Superior Court. New trial. Before Judge Speer.
Spalding Superior Court. August Term, 1878.
The case was a rule against an attorney. At the Feb-
rnarj term, 1878, of Spalding superior court, an order waft
taken authorizing the presiding judge to hear and deter-
mine the law and facts in vacation, with right of exception
as though tried by a jury in term time. On the 17th of
May, 1878, the judge determined said case. Mrs. Lester's
attorneys prepared their motion for a new trial and brief of
evidence, and on the 7th of June, 1878, the evidence was
agi'eed on and the attorneys for Lovett acknowledged ser-
vice on the motion for new trial. On the i4th of June,
1878, the motion and agreed evidence were submitted to and *
approved by the presiding judge. On the second day of
the next term (August 6th, 1878,), the motio!i was filed in
the clerk's office of Spalding superior court, and during said
terra dismissed on motion without a hearing on its merits,
on the ground that it was not made in time. Movant ex-
cepted.
296 SUPREME COURT OF GEORGIA.
6. C. McDanikl, for plaintiff in error.
BoTN-roN & Dismuke; H. C. Pekfles, for defendants.
Jackson, Justice.
1. The motion to dismiss the motion for a new trial was
predicated npon a reason, and that rmicon is that the
movant did not move in time ; and tlie prupiditig judge
seems to have based liia judfjinent dismUsiii;; the new trial
npon the same reason. But it is immaterial for what
reason a jndge grants an order or rendersa jiidf;ment if the
judgment itself be right — especially if the judgment finally
disposes of the case by dismissing it. The jndgmotit of the
court in tliia case, for instance, dismissed ihe motion for a
new trial, and thereby disposed of it forever. The court
did so becanse the motion for a new trial was not made in
time, but if the case was such an one that the motion could
not be made at all — at no time — it is clear tliat the judge
did right to dismiss it. And hence the propriety of the
practice of this court to sustain a judgment that is right, no
matter for what reason the court below rendered it. It is the
judgment which is complained of, it is that act of the court
which this court reviews — it is not tlie reasons, right or
wrong, which are given below for the judgment. And so
it has been very often ruled — see 55 Ga., 572; 59 Ga.,
799, and many other cases.
2. Thei-e is no law that wo know of which authorizes
& motion for a new trial of a cause tried before a judge at
chambers. The remedy ie by exceptions to the judg-
ment and rulings of the judge in such cases. Tliat the law
■ provides for ; but it does not for the motion to hear the
case again before the same judge at chambers, or before the
superior court in term. The party may except and bring
the case to this court on hie exceptions within thirty days
from the ruling in vacation, Code, §4251 ; but we are not
aware of any law which empowers him to move the jndge
SEPTEMBER TERM, 1879. 297
Lf ster vs. Johnson €t al.
at chambers for a new trial. The judge at chambers has
no power to hear and determine sucli a motion, unless an
order to tliat effect was passed in term ; and no motion for
a new trial can originate in vacation. In this case the party
did not even make the motion when the judge heard the
case or rendered the decision, but did so at another time —
purely in vacation — and disconnected entirely from the
order to hear and determine the case.
Such a proceeding is wholly without authority of law,
and cannot stand at all. See Code, §§216, 247.
Even if the order in express terms had authorized the
motion for a new trial to be made, it ought to have been
made, if it could be made at all, within thirty days, for that
is the time within which he could except; but that could
not be done then in this case, perhaps, because it would origi-
nate in vacation ; and if made and filed at the next term,
as seems to have been afterwards attempted, it would be too
late, as the judge held, by analogy to the time prescribed
for bills of exceptions.
It is unnecessary, however, in this case to consider that
view of the case, because there was no reservation of the
right to move for a new trial, but only of the right to ex-
cept. To except is one thing, to move for a new trial is
another. It is true that ftie order for the hearing gives the
right to except as before a jury, but that means to except to
the rulings of the court in admitting or rejecting evidence, or
deciding law points as if before a jury. It cannot mean to
move for a new trial, because you can move for a new
trial before another jury, for who ever heard of a jury be-
fore a judge of the superior court in vacation. It means
the right to except and by bill of exceptions to bring the
case here. And that gives the party excepting all his
rights ; for he can except to the judgment on the facts in
such a case as this, where law and facts are submitted to
the judge, as well as to the judgment on the law. See 45
Ga., 167.
There being no authority of law for the motion for a
398 SUPREME COUBT OF GEORGIA.
MonoD. gDudiiD. M. Binu.
new trial of a judgment rendered byftjndgeof thesnperior
court in vacation, the motion was properly dismissed, lod
the jndgmeiit diamissinji; it is affirmed.
Judgment affirmed.
MoBTOff, guardian, vs. Sues.
1. In issulDg a comraiMion to exAiniDe a person alleged to be imbecile
tram old age or other cause, and locompetent to oiansge his Mate,
■Dd in appointing a guardian for sucb imbecile peraon on tbe report
of t El e commissioners, lbs ordionry exercises a special and United
jurtadicilon. The proceedings are summary and mitst be coastnied
strictly. They should show on their face sucb facts, especially
touching tbe giviaic of aoilce, as will authorize tbe judgment *p-
polnting a guardian.
S. It the nearest aduU relatives of tbe alleged imbecile are ibemwlTe*
tbe petitionera for tbe appolntmeut of a guardian, tbe ten ds;i
notice provided for in aeclion 1855 of the Code, should be giTea to
three of the next nenrest, or if there be no adult relatives wilbia
this state except the petilioners, tbeo, in order that tbe spiril of the
section as well as of the general law may tte observed, tbe ordinary
should either require tbe ten days notice to be given to tbe alleged
imbecile himself, or else designate by order a guardian ad littM to
receive the notice for him.
8. A commission issued without the requisite notice, and neither pre-
ceded nor followed by tbe appolutment of aguardian ad Ufls, !•
not aided by the presence of tbe imbecile and bis represeotatioo bj
counsel, even where tbe counsel gives bis consent to tbe Jndginesl
appointing tbe guardian, it appearing that tbe commission was eie-
cuted on the next day after it was issued, and that tbe judgmesl
followed Immediately. Tbe object of the notice la that there nsj
be due warning to make objection for legal cause to the commiuiofl
or any of the commissioners, as well as to prepare for adducing evl*
dence on the main question.
Guardian and ward. Ordiuarr. Jurisdiction. Lunatic
Service. Judgment. Before Judge Pottlb. Oglethorpe
Superior Court. April Term, 1879.
On February 10, 1879, William H. Sims, of Lowndes
county, Miss., and S. A. M. Morton and John B. Mortoo,
SEPTEMBER TERM, 1879. 299
MortrtD, gnardiao, e». Sims.
of Oglethorpe county, Georgia, filed their petition in the
court of ordinary of the county last aforesaid, representing
that James S. Sims, of said county, on account of imbe-
cility from infirm health and old age was incapable of inan-
apfing his estate, and liable under the laws of Georgia to
have a guardian appointed in his behalf ; that they were
the three nearest adult relatives of said imbecile residing in
this state to whom notice could be given under the statute.
The premises considered, they prayed that a commission be
issued to eighteen discreet and proper persons, one of whom
should be a physician, requiring any twelve of them, in-
cluding the physician, to examine by inspection said James
S. Sims, and to examine witnesses on oath if necessary as
to his condition and capacity to manage his estate, and to
make their return touching said inquiry as required by law,
and that upon such* return being made in accord with the
allegations of this petition, that the court would appoint
said John B. Morton guardian, etc.
On the same day the ordinary issued a commission as
prayed for. On the succeeding day the commissioners re-
ported their finding to be in accordance with the allega-
tions of the petition. Whereupon the ordinary passed
an order reciting the foregoing report, and appointing John
B. Morton guardian of the person and property of said
James S. Sims, upon his giving bond and security in the
snm of $20,00<).00, and taking the oath required by law.
On March 5th thereafter, James S. Sims moved that the
jndguient appointing the guardian be set aside on the fol-
lowing grounds :
1. Because the movant was never served with a copy of
the proceedings on which said judgment was based, nor did
he waive service, or authorize any one to make such waiver
for l,im.
2. Because the petition does not bear date ten days before
the same was heard and determined.
3. Because no guardian ad litem was appointed by the
court to represent movant, when the pleadings show that
V 64-19
SUPREME COURT OF GEORGIA.
Horton. gaardlan, «. Sliiu.
hie three nearest adult relatives were the petitioners, and
SB such proceeding against him.
4. Kecaiiee tiie record does not show that the movant
was examined bj inepection as required by law, or in any
other manner examined by the cotnmiaaion or court.
5. Because the order of the ordinary doea not recite a
compliarjcG with the requisition of the law at) to notice of
the proceedings, nor doea the record anywhere show such
compliance.
Service of the motion was had, and by cousent it was
heard on April 14th following. At the bearing, petitioners
prayed that the judgment rendered on February 11 past,
be so amended as to state the fact that the said James S.
Sims was then and there present at the trial, and represented
by Samuel Lumpkin, an attorney of this court, as hie cona-
sel, and tliat said counsel consented to said judgment. The
amendment was ordered over the objection of counsel for
movant. The ordinary then overruled the motion to set
aside tlie judgment appointing the guardian. From this
decision Janiee ti. Sims appealed to the superior court. On
the liearing in that tribunal, the judgment of the ordinary
was reversed, and the appointment of the guardian ordered
vacated. To this judgment Morton, guardian, excepted.
Samcel Lumpkin; W. G, Johnson; H, K. MoCav, for
plaintiff in error,
McWnoKTEK Bros.; Jno. C, Reed; J, T. Oliver; Phil.
Cook Jr., for defendant.
Bleuklev, Justice.
1. The proi'.eedings to put Dr. Sims under guardianship
did not take place in the court of ordinary proper. In
issuing the commission, and in appointing the guardian, the
ordinary exercised a special and limited jurisdiction, regu-
lated by sections 1855 and IS56 of the Code. The proceed-
ings which these aections provide for are swift and snmmary,
SEPTEMBER TERM, 1879.
Hoit«i. giucdiiui, w. B
and ranat therefore l>e constraed etrictly. They shonid show
OD their face aucli facts, eapecially toucliing the giving of no-
tice, a* will antliorize the legal uppointment of a guardian.
Thifl degree of BlHctneeB holds aa to all coorte of limited
iarisdietion. 9 Ga^ 185; 12 IK 424; 18 /&., 68. In
raling nptm tba motion to set aside the judgment appoint-
ing a gnardinn for Dr. Sims, the qnestion is, whether upon
the face of that judgment, reading it in connection with
the balance of the record to which it belonge, enough ap-
pears to show that it was daly rendered. The trial is to be
by inspection, and consists only in comparing the judgment
and its preliminaries with the law.
2. After declaring that ordinaries may appoint guardians
for idiots, lunatics, persons insane or deaf and dniub, hab-
itual drunkards, and for " persons imbecile from old age or
other canse, and incapable of managing their estates," the
Code goes on to point ont the mode of procedure as fol-
lows: §1855. "Upon the petition of any person on oath
setting forth that another is liable to have a guardian ap-
pointed utider the pioviwiime of tliis article, the ordinary,
npon proof that ten diiyfi' notice of such application has
been ^ven to the three iitarest adult relatives of such per-
son, or that there is no such relative within this state, shall
issue a commission directed to any eighteen discreet and
proper persons, one uf whom shall be a physician, requiring
any twelve of tliein, in<:Uiding the physician, to examine
by inspection the person tor whom guardianship is sought,
atid to hear and exHTiiiiie witnesses on oath, if necessary, as
to his condition and cDpucity to manage his estate, and to
make return of such examination and inquiry to the said
ordinary, specifying in said return under which of said
elaaaeB they find him lo come. Such commissioners shall
be first sworn by a justice of the peace, ' well and truly to
exeente the said commission to the best of their skill and
ability,' which oath shal! bo returned with their verdict."
§1856. "Upon such return finding the person to be as
alleged in the petition, or within either of said classes, the
802 SUPREME COURT OF GEORGIA.
Morton, KDaidlan, v. eiau.
ordinary shall appoint a gnardian for him." There a
to be a petition on oath, with proof of ten days' nolice
of the application to throo of the nearest adnlt reliti»e«,
or proof that no adult relative of the alleged imbecile it
within this state. The proof made was only that the w*'
tionera themselree were the three negreat Kduit relatives
residing in this state, to whom notice could be given under
the statute. Of conrse, it would be absnrd for the peti-
tioners to give notice to themselves of their own application,
and this being so, they are not the relatives appointed b;
the Btatnte to receive notice. They are simply to be
counted oot, jaet as if they ven not relatives at all, and
the notice ought to have been given to the three neit near
eat relatives within the state, and the ordinary had no power
to issue the commission without proof that it had been
given, or else that there was here do adult relative to be
notified. The scheme of the statute is to serve nolice open
three, if that many are here, and if there be less than that
many, upon two or one, as the case may be. If none is
here, then according tu the letter of the-statnte, the ordi-
nary may proceed npon proof of that fact; but, we thint,
as matter of practice, and to comply with the spirit of the
statute, as well as of the general law, it wonid be better for
the ordinary to require the notice to bo given to the alleged
imbecile himself, or else designate by order a gnardian ad
litem to receive notice for him. It ia, to say the least,
doobtful whether the property of an adult citizen can be
taken out of his cnstody and committed to gnardiaosliip
without previous warning served either upon him or upon
some person duly constituted by law or byaome legal tribn-
nal to be notified in his stead. "If it was unreasonable, in
the opinion of the Roman governor, to send a prisoner and
not to signify withal the erimee alleged against him, the
law jndgcs'it to bo equally so, to pass upon the dearest
civil rights of the citizen, without fir«t giving him nofir« of
his adversary's complaint." 6 Oa., 483. *'The truth is,
that at the door of every temple of the laws in this broad
SEPTEMBER TERM, 1879. 808
Morton, gaardian, «». ShitB.
land, stands jnstice, with her preliminary requirement upon
all administrators — ^ Yon shall condemn no man unheard.'
The requirement is as old at least as magna charta. It is
the most precious of all gifts of freedom, that no man be
disseized of his property, or deprived of his liberty, or in
any way injured, ' nisi per legale judiciuin parium suorum,^
iodper legem terraey* 5 6?a., 616. "It is a principle of
natural justice which courts are never at liberty to dispense
with, unless under the m^andate of positive law^ that no
person shall be condemned unheard." 9 6?«., 188. In the
present case, however, the petitioners did not carry their
proof far enough to enable the ordinary to issue the com-
mission even on Ihe letter of the statute, for they neither
proved notice to any relative, nor that there was no relative
to be notified. They treated themselves as representing
both sides of the case because they were the nearest rela-
tives, whereas, there is no hint in the statute that those
whose duty it is to give notice are competent to receive it,
or that it will be dispensed with because they would be the
persons to be notified if others and not themselves were
petitioners. Nothing is more certain than that there was a
failure to comply with the statute in respect to the im-
portant step of notice, and for that defect in the proceed-
ings the judgment appointing the guardian was properly set
aside.
3. We think there was not any saving efficacy in the fact
that Dr. Sims was present at the so-called trial, and was also
represented by counsel, even if the counsel did consent to
the judgment. The system of the statute is one of coercion,
not of consent. If a man is really an imbecile he is inca-
pable of consenting, and what he does by his counsel is no
better than if he did it in person. Any consent of counsel
is at bottom the consent of his client— nothing more. It is
not pretended that either of them was before the ordinary
when the commission was issued, or that there was any op-
portunity afforded to object to that part of the ordinary's
action. The misstep was in issuing the commission, without
304 SUPREME COURT OF GEORGIA.
0«rd1ng, ForvtibKiivtiMT, m, AodoKHi. Burr A Co.
requiring the petitioners to comply with the law m to
notice. The object of notice is that there may be dat)
warnirf; to make objectioD for legal can»e to the eommiB-
sion or any of the commissionerB, as well ae to prepare for
adducing evidence on the main qaestion. The notice ia to
precede by ten days the iesaing of the commission. Wby ie
this, if not for both of the pnrpoeea which we have specified 1
There was too much haste. The commission issued one
day, was execnted the next, aod the judgment appointing
the guaitiian followed immediately. Action, trial and jod^
ment in two days, and no previous notice! The enrpriee
and shock of such swift inquisition into an old gentlemin's
wits might 80 confonnd him as to prepare him for consent-
ing, throngh his connsel, to being adjndged an imbecile.
Judgment affirmed.
Gbkdino, anrviving partner, v«. Andbbson, Stars &
COUPASY,
To require tbe superier court to coasalidate three actlooe on tbne
promissory notes into one, thedefeodaDt must make it appear to ibe
court either that he has do defense, or that the defense is llie same
to all of the notes; and in tbe latter case be must aver what that de-
fense is, BO tliat the court ma; adjudge wliether it be the same in
all Ibe cases.
Practice in the Snperior Court. Before Judge Lawbon.
Putnam Snperior Court. March Term, 1879.
Gerding, surviving partner, was defendant in three snits
l)roiight 00 promissory notes in Putnam snperior court by
Anilerson, Starr & Co. He moved to consolidate them,
ishMing in his motion "that if there is any defense at all
filiid to said enite, it will be the same in each case, and pe-
titioner therefore moves the court to allow said cases to be
consolidated, in order to save petitioner expenses, costs,
etc." He introdaced no evidence in support of tbe motion.
SEPTEMBER TERM, 1879.
Plaintiffs made a counter-showing, to the effect that when
the notes were presonted for payment, defendant said he
would pay them in the fall; but if they were sued, Uu
would remove the casea to the United States court, and thus
gain time. Plaintiffs' eonnsel bronght suit on each note
separately, each one being nnder 1500.00, but the aggregate
being more than that atnount. He urged that the motion
to consoiidate was really made for tlie purpose of oblaining
a removal. The motion was overruled, and defendant ex-
cepted.
W. A. Ram; W. B. Winqfibld, for plaintiff in error.
W. F. Jenkiks, by brief, for defendants.
Jaukson, Justice.
This was a motion to consolidate three suits on three
notes into one action. There can be no doubt of the riglit
of the defendant ordinarily to consolidate, if there be no
detriment thereby to thf plaintiff on the meritsof tlie eyses.
To show that there will be no hurt to the plaintiff, de-
fendant mnst show citliur that he has no defense, or that
the same defenee applies to all the cases, and in order to
show the eourt the latter fact, he must disclose what that
defense is. For it is for the court lo decide whether the
facts make the defense tlie same in each case. If the con-
solidation will work hinn to the plaintiff, or if it would make
the aggregate sum sued for so large as to oust the jurisdie-
lion, and on the same principle, if it would make him try
different issues on different pleas in one case to several
notes, the consolidation will not be allowed. Code, §3261.
13 6a.. 201 ; 35 Ga.. 82 ; 45 Oa., 96, I'M.
The defendant not having made it appear upon what de-
fense he relied to defeat these notes, or each of them, so
that the court could see tiie transaction, and judge of the pro-
priety of thii ooiisolidation, this court will not reverse the
jadgment whicli refused the motion to consolidate.
Judgment affirmed.
806 SUPKEME COURT OF GEORGIA.
Vick«r>. tr nut frknil, m. Tbe AClwiU A Wot Point Railra^ do.
Tickers, by next friencl, vs. Trk Atlanta & West
Point Railkoad Company.
Where Ibe law rniBes a presumptioD of nrf^ligence ugniDBt tbe defend-
nnt bj reason of the mere ftict tbot the phybicul injury was 'uflicied
lij means of running its locomotive, and where, owing to e^ecinl
circumElniiets taucbing the conduct of the engiueer towards the
plaintiff, a cLild of only ten years iit age, il is not allogelher eertaia
that the presumption is rebutted; and where, on account of Ihe
plaiutifl's tender ;enrH and his consequent ioimiiturity of under-
standing, he is not amenable lo so high a standard of diligence in
regard to bia own safety as that which adultaare obliged to observe,
the case made by the plaintiff's evidence is more properly one for
tbe jury than for the court, nod a motioD tor a non-suil should be
denied.
Railroads. Jfon-suit. Before Judge Buchanan, Camp-
bell Stipenor Court. Fobniarj Term, 1879.
Vickera, by nest friend, brought riaee against the railroad
company for a personal injury, laying his damages at
$20,000.00. He alleged, in brief, that he was a minor,
about ti^n years of age ; that the injury was caused by the
upgligenco of diifendant's agent" in allowing the plaintiff
and others to get on and jnmp ofE the cars while in motion;
that the engineer who ran the engine that did the injury
told the plaintiff to jnmp on the engine while in motion,
and only one or two days before the injury occurred, eaid
engineer put plaintiff on the engine while in motion, and
then- and there traded and carried on a traffic with plaintiff
for ground-peas, and told him to come back on the day of
the injury to get his pay, and it was in accordance with
such request that plaintiff returned, and in jumping on
the engine while in motion, fell, through which the train
ran over his left leg, rendering amputation necessary ; that
by reason of his tender years he was unable to judge of the
danger to himself from such course of conduct.
The facts as sworn to by the plaintiff, made, in substance,
this case :
Plaintiff, a little boy between nine and ten years of age.
SEPTEMBER TERM, 1879. 307
Vickers, hj next friend, v«. The Atlanta A West Point Railroad Co.
was in the habit of selling ground-peas, apples, etc., to the
passengers and defendant's employes on trains as they
passed through the town of Fairburn. Martin was passing
through such town, running the engine of a train. He
called to plaintiff, who was engaged in selling ground-peas.
The train whs running very fast, but plaintiff responded to
his call, and when he reached the engine the brakeman or
fireman took his basket up on the tender, and by the time
he had climbed up on the engine they had the ground-peas
measured out. Martin offered him his pay in large bills
but did not have any small change. Said he would pay
him the next time he came up. When the engine stopped
plaintiff got off and returned to the cab. He went to the
train the next morning, but Martin did not have the change,
said he would bring it the next evening. At the appointed
time plaintiff went to get up on the engine as it was mov-
ing, his foot slipped and he fell under it and was thus in-
jured. The engine was running fifteen or twenty miles
per hour when he sold the ground-peas to Martin, and about
fifteen miles per hour when he was hurt. The train ran about
one hundred yards after the injury before stopping Knows
now that it is dangerous for boys or men to attempt to get on
trains when running fifteen or twenty miles per hour, but
did not know it then. He was so small that he did not
know anything about the engine.
Much other testimony was introduced, principally as to
extent of injury, amount of damage, etc., not deemed mate-
rial here. On motion of defendant the court ordered a non-
suit, and plaintiff excepted.
L. R. Ray ; L. H. Feathbbston ; W. F. Wright ; L. S.
Roan, for plaintiff in error.
N. J. Hammond; Thomas W. Latham, for defendant.
Blkgkley, Justice.
Non-suit is a process of legal mechanics: the case is
chopped off. Only in a clear, gross case is this mechanical
308 SUPREME COURT OF OEORQIA.
Vleken, bji next friend, M. The tUinU A W«t Point Railroad Co.
treatment proper. Where there ia any doubt another
method IB to he used — a method involving a sort of mental
chemiBti-y ; and the chemietB of the law are the jury. Thej
are supposed to he ahle to examine every molecule of the
evidence, and to feel every shock and tremor of its proba-
tive force.
The present ia not quite a caae for non-suit, though its
neighborhood to that class seems very near. In section
3033, the Code affirms that "a railroad '.-oinpany shall be
liable for any damage done to persona, 9toi;k, or other pro-
perty, by the running of tho locomotives or cars or other
machinery of such company, or for damage done by any
person in the employment or service of siich company,
unless the company shall make it appear that their agents
have exercised all ordinary and reasonable care and dili-
gence— the presumption in all canes being against the com-
pany," The next section provides that " no person shall
recover damages from a railroad company for injury lo
himself or his property, where the saine is done by his con-
seat, or is caused by his own negligence; if the complain-
ant and the agents of the company are both at fault, the
former may recover, but the damages sliall be diminished
by the jury in proportion to the amount of default attrib-
utable to him." Still another section, 2972, declares that
"if the plaintiff, by ordinary care, could have avoided the
coueequences to himself caused by the defendant's negli-
gence, he is not entitled to recover ; but in other cases the
defendant is not relieved, although the plaintiff may in
some way have contributed to the injury sustained." Con-
struing the three sections together, we discover that a pre-
sumption of negligence is raised against the company from
the mere fact of inflicting the injury, and that on combin-
ing that presumption with the whole sum of the evidence,
one of four results may follow; First, if the presumption
ia totally overcome, the verdict should be for the company ;
aecondly, whether it is overcome or not, if the plaintiff
tliher caused thi- injury by bis own negligence or could by
ordiripirv carR have avoided it, the verdict should &till be
SEPTEMBER TERM, 1879, 309
Hnlltw. Harris.
for the company; thirdly, if the plaintiff was faultless,
neither contributing to the injury nor omitting ordinary
care to avoid it, the verdict should be against the company
for full damages; and, fourthly, if the plaintiff contributed
to the injury, but did not himself cause it, and could not
have avoided it by ordinary care, the verdict should be
against the company, not for full damages, but for the dam-
ages diminished in proportion to the default attributable to
the plaintiff. The actual case under the evidence, is com-
plicated with several special circumstances, such as the pre-
vious conduct of the engineer towards the plaintiff, the
plaintiff's tender age, the degree of parental control exerted
over him, etc. In 27 <?«., 350, there was no statutory pre-
sumption to be rebutted, nor was the question of non-suit
raised or discussed. In 56 Oa,^ 72, the injury sued for was
the homicide of an employe, and as in such a case any
fault whatever on the part of the employe would defeat a
recovery by reason of section 3036 of the Code, and as the
contributory negligence was manifest, the non-suit was sus-
tainable. The case at bar seems more in line with that re-
ported in 59 Ga,^ 593, and with various other authorities
which we have examined ; amongst them, 38 N. Y., 445 ;
60 /&., 326 ; 64 /&., 13 ; 67 II., 417. The jury ought to
deal with it.
Judgment reversed.
Hull vs. Hab&is.
[Wabhkb, Chief Jastlce, being engaged in presiding over Uie senate organized at a
ooart of impeachment, did not sit in this caae.]
Upon breach of a bond to make title to land, where the purchaser
buys up the outstanding title thereto, the measure of damages is
what the outstanding title actually cost him ; and on a suit by the
vendor for the purchase money, such actual cost only can be set
off against the note.
Damages. Title. Before Judge Hood. Worth Superior
Court. April Term, 1879.
310 SUPREME COURT OF GEORGIA.
" UnLl w. BaniB,
Reported in the opinion.
Wabbek & HoBBS, for plaintiff in error.
1). H. PopK, for defendant.
Jacksok, Justice.
This suit waa bronght by Henry Hull to recover on a.
note given by defendant to John S. Linton for a tract of
land for which Linton had executed a bond for title; to the
defendant. The defendant waa in possession of the land sold
him, but alleged that one of the lots had been previously
mortgaged and Bold by Linton, and that lie had been forced
to buy np the oatetanding title to that lot. The jury fonnd
for the defendant.
The evidence ie conflicting whether or not this lot waa
embraced in the prior conveyances of Linton ; bnt even if
it had been, there is no evidence to support the verdict. If
the defendant was obliged to buy up the outstanding title
to the lot, his measure of damages is what it coat him. Code,
§2949; 17 6a., 602. There is no evidence what he did
have to pay for it ; therefore there is no evidence of his
damages; therefore the verdict for the defendant allowing
him the whole balance of the note is without any evidence
to support it.
The rule is sound. A purchaser ought not to retain pos-
seeeion of land sold him, and buy up outstanding titles for
little or nothing, and then have himself credited with the
full value of what the land is worth.
The verdict being without evidence, a new trial must he
granted.
Judgment reversed.
SEPTEMBER TBnM, 1879. 311
ii!;bn A Co. ttal.vs Riitney.
Jackson ife Company et al. vs. Rainey.
Where a widow entitled to dower is in possession of the dwelling-
house, though the dower has not been assigned, she needs no injunc-
tion to restrain a creditor of the husband from causing a sale of the
premises under execution, or to restrain the sheriff, before any sale
has taken place, from turning her out and putting the purchaser in.
She can give notice, at the sale, of her rights, and purchasers will
buy subject thereto; and if they disturb her lawful possession it will
be at their peril.
Injunction. Dower. Before Judge McCutohen. Bar-
tow County. At Chambers. November 19, 1879.
Mrs. Kainej filed her bill against certain judgment cred-
itors of her deceased husband, and the sheriff of Bartow
county, setting up her right to dower, though not yet
assigned for reasons stated, her possession of the dwelling
house, and praying that the defendants be enjoined from
selling such house under execution, and interfering with
her occupancy, etc.
The injunction was ordered, and the creditors excepted.
T. "W. Akin ; Bboyles & Jones, for plaintiffs in error.
A. Johnson, by Jackson & Lumpkin, for defendant.
Bleckley, Justice.
The complainant either has or has not the dower right
in the dwelling of her late husband, which she alleges in
her bill. If, under the special circumstances, she has not
the right, she is not entitled to any injunction ; and if she
has the right, she needs none. The Code, in section 1768,
provides "that the widow is entitled to the possession of
the dwelling-house from the death of her husband, and be-
fore dower is assigned." The complainant has possession,
and if her theory of her rights be correct, she need not care
whether the sheriff sells the property as that of her deceased
312 SUPEEBft COURT OF GEORGIA.
etokn M. Tin:
huBb»Qd or not. She can (five notice, at the s^n^^ ^f ^^^
HghtB, and purchaeers will hay subject thereto, and the;
cantiot distnrb her Uwf qI poBseeeion but at the peril of answer-
ing aa treepaesere. It Ib not to be anticipated that the}' will
attempt soch a thing. Because tlie sheriff sells, it by no
means follows thnt an entry will be made npou her, eithci'
with his assistance or withont it If injiniction ever should
be necessary, certainly an application for it now is preuia-
tore.
Judgment reversed.
Stokks vs. Tift,
«0
1. The evideDce belag conSictiDg but gufUcicnt to uphoUl iLc verdict
of tbe jury for eillier party, and ibe preaidiog Judge huTiog de-
cUoed to set It osido, Ibe rule of tliis court lb inflcMblc uot to inlcr-
fere unless some error of Ibe court on the trial is miids lu uppeiir in
the record.
2. If the proprietor of a toll-bridge knows of a defect therein, dncger
ous to puseogers and likely to result in dumitge. und Ibe diingerous
detect Is not exposed bo that ibe pasaeuger can also ftee it, and tak-
ing toll from Cbe passenger, allows him to cross wllhouc warning,
the proprietor Is lint>)c for damages; aliler. if tbc defect is not dan-
gerous and likely to result in damage, but in Ibo jiidgmeot of the
proprietor slight and (bought lu have been aufely repaired ; aud a
request to charge which does not guard Ibis distinction was prop-
erly refused. The proprietor of a bridge is only liable for ordinary
care and diligence, and beyond this is not an insurer.
New trial. Roads and bridges. Damages. Negligeiii?e.
Before Judge Cwsp. Dougherty Superior Court. April
Term, 1879.
Stokes sued Tift for injuries resulting to him from the fall
inf; in of a toll-bridge belonging to defendant, while he was
crossing it. Plaintiff claimed that the bridge was defective
and daDgeroQB, and tliut the defendant knew of the defect.
SEPTEMBEK TERM, 1879.
KtokeaTtf Tift
Defendant claimed that prior to the accident the bridge
a)ipeared to have settled a little on one side ; that he em-
einploycd competent laborers and bad thcin to make HQch
repairs as seemed necessary, and that to all appearances the
bridge was sound and in good condition at the time of the
accident.
The jury found for the defendant. PlaintifF moved for
a new trial which was refused, and be excepted.
For the other facts see the opinion.
D. P. Hill, for plaintiff in error.
D. H. PopB, for defendant.
Jackson, Justice.
1. Thecase wasfordamagereceivedb; plaintiff in person
in crossing a toll-bridge of defendant. The verdict is for
defendant. The evidence is conflicting, bnt is sufficient to
enstain the verdict.
3. The error of law complained of is ttiat the court de-
clined to charge the jury that "when there is a defect in a
toll-bi'iiJi;e whicli is not open and exposed to all. and the
proprietor of tliu bridge knows of the defect, and allows
persons to cross on the bridge and takes toll for crossing,
then the proprietor is liable for damages resulti^ig from said
defect." We tliink that the charge requested is too broad.
If the proprietor knew that the defect in the bridge was
daiujerotis and likely to result in the damage, then we would
hold hi in liable; but not for any defect, however slight,
which, contrary to his expectations and belief, resulted in
unforeseen and unexpected damage. He is only liable for
ordinary care. 53 Ga., 47, Tift vs. Towns. That cam
arose on the fame state of facts as this, and covers this. It
is presumed that tiie law was given in accordance with the
rating tliere, and the court there say that the evidence is
snfficient to upiiold a verdict for eitherparty. Besides, the
request is too broad in this that its language is "open and
314 SUPREME COURT OF GEORGIA.
HcBvoj V. Hnweir. pretl'lent. ate.
exposed to all," whereas this plaintiff may have known aa
mac.h ahout it as the proprietor did. See nlEo tlic same case
— Tift V8. Towns — decided this term — where we iiphold
the verdict for plaiatiS in part on similar facta as here ; and
thoQj^h it looks odd for juries to give different verdicts on
similar facts, yet that is their business. Our rule, as a re-
viewing court, ia one of law, and it is not to interfere with
the jury on conflicting fiicts where the presidinj; judge de-
clines to do eo.
Judgment affirmed.
MgEtot V8, Hdsset, president, etc.
1. The president of • corporation cannot mainlaiti a prjssessory war-
rant in bis own Darae to recover possessioo of cnrpnrat<? projiuny r>f
wliicb he has had do prior poaseasion either aa aa oftti ev or nn in-
dividunt. In ibe present case, tbe corporation ia uni a purty in the
proreeding. and though the plaintiff In the warmat nas presidfnl of
thi; corporation, nod described himself as such, the Judgment award-
ing posessioQ to him was erroneous.
3. Where acurporalioa, notlheofflcerrepresenliag it, is thecomplHiD-
ing party, the affidavit made to obtalu the warmul mii.si iiei;alive
the coDsent of Ibe corporation (not the consent of ibe oincer) to the
dlsiippearanca of the property, and allege that the corponitloD does
in good taith claim, etc.
PoBsesBory warrant. Corporation. Before Judge Tomp-
KiNB. Chatham Superior Court. October Adjonrned
Term, 1878.
This case arose npon the following affiduvit:
"8TATE ov Oboboia— Cbalbam County.
"To aoy lavful constnble to execute and return.
Personally came William Hussey, President of tbe St. Patrick's
Total Abstinence and Beneflcinl Society, incorporated under tbe
laws of this state, who on oath says, that on the IDih day of May,
1878. 1 minute- Iwok, 1 roll book, 1 receipt-book, 1 voucher- book, 1 lot
of voucher papers, 1 desk, 1 key, 1 secretary's regalia, 1 lot of letters
and 1 lot of papers, having been recently in the quiet, peacivLlilc .lud
legally acquired possession of St^d society, was taken and carrit-d away
"^li
SEPTEMBER TERM, 1879. 316
McEvoy vi. Hassey, president, etc.
from the possession of said society, without his consent, by fraud,
violence, seduction and other means, and. as deponent believes, has
been harbored, received or taken possession of by H J. McEvoy, of
said county, under some pretended claim or claims, without lawful
^warrant or authority, and deponent bona fide claims a title to, and pos-
session of, said property above described. Sworn to and subscribed
before me this 28d day of May, 1878.
. William Hussst, St Patrick's T. A. & B. Society.
BOBBRT J. Wadb, J. P.
A possessory warrant was issued and the property seized.
The evidence developed, in brief, the following facts :
Hussey and McEvoy both claimed to be officers of the St.
Patrick's Total A bstinence and Beneficial Society, a char-
tered body duly incorporated under the laws of Georgia.
There was a schism in the body which divided it into about
two equal parts. Hussey's election as president had been
attacked, and he was kept out of the enjoyment of his
oflSce for more than one month, and was re-instated through
quo warranto proceedings instituted against Father Oaf-
ferty, a Catholic priest, who then was acting as president.
Having been reinstated he appointed one Hayes secretary,
who demanded the books, papers, and other property be-
longing to the office from McEvoy, the former secretary.
Hussey and his party claimed that the latter was no longer
secretary, having been expelled from the society for causes
unnecessary to be set forth. McEvoy had been in the
quiet and peaceable possession of the property in contro-
versy for years, as secretary. He still claimed to hold such
office, denied the validity of his expulsion, and denied the
authority of Hussey to appoint a secretary.
There was no evidence to show that Hussey had ever
been in possession of the property in contrqversy.
The magistrate awarded " possession of the property
claimed to William Hussey, the plaintiff in this case, and
the president of said society, with costs of court against the
defendant." On certiorari this judgment was affirmed by
the superior court, and to this affirmance McEvoy excepted.
VM-ao
SDPREME COURT OF GEORGIA.
R. R RicHABDs; Foley & Foley, by brief, for plaintiff
in error.
KoFTJS E. Lester, for defendant.
Bleckley, Justice.
In this case a possessory warrant was isened upon an affi-
davit made by Huseey as president of the St. Patrick's As-
sociation, a corporation. Lookinfi; to that affidavit for the
porpose of deteraiining who was the party complainant, we
are of opinion that the corporation was not a party. Cer-
tainly the corporation is no party to the writ of error in
this court. The case here is McEvoy vs. Hnseey, describ-
ing him as president of the corporation, but the corpora-
tion is no party, and, we think, was not a party to the pos-
sessory wari^nt.
The affidavit made by Huesey is signed by him as presi-
dent, and it describes him in the body of it as president of
the corporation. It alleges that the corporation had posses-
sion of certain books, office furniture, files, and regalia of
the secretary. It does not allege that Hussey ever had
possession of these articles in any capacity, bat that the cor-
poration had a quiet, peaceable and legally acquired posses-
sion, and that the chattels disappeared without hie, depo-
nent's, consent, and that be in good faith claims a title to,
and the possession of, the property. There is no alle-
gation that the chattels disappeared witliout the con-
sent of the corporation, or that the corporation claims
any right to them whatever ; so that we come to the oon-
clusiuu that the writ of error properly presents the parties;
that ia, that it is a case between McEvoy and Hussey, was
so originally, and that the corporation neverwas a party to
the pOBseseory warrant.
One of the objections made before the magistrate who
issued and heard the warrant, vas that the evidence did net
make oat any right in Hussey, as president, to get posses-
\
SEPTEMBER TERM, 1879. 317
McSvoy M. Uamejf prtiiiiwit. etc.
sion of this property, or to hav^e posseeeion of it. That?
with various other qaestions, was made ; and that queetion,
we think, was decisive of this case.
On this warrant, ander the evidence, there could be no
awaf d of possession to Hosaey himself, nor to the society
either, and therefore, we think, the mafi^stratQ erred, and
that the certiorari ought to have been sustained upon that
ground wichout reference to any other. The party that
bad had possession (Hussey had never had it)r was not be-
fore the court, and is not here.
2. The 4033d section of the Code reads as follows :
Upoa complaint being* made on oath by the party injured, his agent
or attorney in fact, or at law, to any judge of the superior, judge of the
oountycourt,orju8liceof the peace of the county in which the property
ia controversy may be, that any personal chattel has been taken^enticed,
orcarriedaway.etther by fraud, violence, seduction or other means, from
the possession of the party complaining, or that such personal chattel,
having recently been in the quiet, peaceable and legally acquired pos-
session of such complaining party, has disappeared without his con-
sent, and, as he believes, has been- received or taken possession of by
the party complained againat, under some pretended claim, and with*
cat lawfnl warrant or authority, and that the party complaining does
in good faith claim a title to or interest in the personal chattel, or the
poesessiOB thereof, it shall be tlie duty of such judge or justice to issue
a warrant, as well for the apprehension of the party against whom the
complaint is made as for the seizure of theproperty in controversy,
which warrant shall be directed to the sheriff, his deputy, or any law-
fnl constable of the county aforesaid.
A comparison of the affidavit made by Hussey with the
terms of the affidavit here laid down will show that what
we have ruled above cannot be otherwise than correct.
Judgment reversed.
SUPREME COURT OF GEORGIA.
BtmmII m. Tbe Bute.
Bba86kll vs. The State of Gkoboia.
1. Exception to the entire charge will not he held guod unless the
whole charge be wrong.
9. Where ao point le made En the argument before the jury, or insisted
upon or contended before the court, that tbe case might be involun*
tftrj manslaughter, and such grade of homicide ie Dot apparent at
all from the evidence, the court need not charge thereon further
than to read the sections of the Code which bear upon it, uoleaa
special]}- requeated to do so.
8. Where norequest ismadetochargein respect to theprisoner'satate-
ment, and no injury aeema to have been done defendant by the
omlBSiOQ to charge in regard thereto, the omission will not require k
new trial— especially where the evidence abundanily auRtains, if it
did not abaolulely compel, the verdict.
Practice in the Supreme Court. Criminal law. Charge
of Court. Before Jndge Hilltkb. Clayton Superior
Court. March Term, 1879.
To the report contained in the opinion, it is only necee-
eary to add that three f^ronnds of the motion for new trial
were as follows :
(1.) Becanse tbe verdict wae contrary to law and the
evidence.
(2.) Becanee the court failed to charf^e the law of invol-
untary mauBlaughCer.
(3.) Becanee the court failed to charge the law toncbing
the prisoner's statement.
J. D. Stewart ; W. L. Watbrson, by brief, for plaintiff
in error.
B. H. Hill, solicitor-general, by brief, for the state.
Jaceson, Justice.
The defendant was indicted for murder, he was found
guilty of voluntary manslanghter, and moving for a new
trial it wae refused, and error is assigned here on that re-
fusal.
SEPTEMBER TERM, 1879. 819
Brasflell w. The State.
1. A general exception to the whole charge will not be
coneidered unlees the whole of it is wrong, and the motion
for new trial mnst specify what is alleged to be erroneous,
unless all of it be so. 60 Ga., 82, 107 ; 1 4 /J., 404: ; Code,
§4251.
2. Where no point is made that the facts make a case of
involuntary manslaughter, either in argument before the
court and jury or by request to charge the law thereon, the
court need not instruct the jury touching that grade of
homicide further than to read the sections of the Code
thereon, unless the facts place such an issue prominently in
the case. The facts of this case do not make this grade of
homicide at all apparent. Where two have been engaged
in a fight, and one turns off and the other strikes him with
a pine-limb likely to produce death by hurling it at him,
and making a large hole in the back of his head, killing
him instantly, the intention to kill is clear, and the case is
murder or voluntary manslaughter. 28 6a,y 200.
3. No request was made to charge in respect to prisoner's
statement in writing or orally, nor would it, if made, have
benefited the defendant in all human probability. The
statement scarcely varies the testimony at all. The facts as
detailed by the witnesses are not materially changed or
explained to the defendant's advantage, and the only thing
in jt of substance going to his benefit, is the assertion that
he did not intend to kill the deceased. The jury would
liardly have credited that against the fact that the pine-
limb was hurled with such force at deceased, as he was
walking off, as to cut a huge hole in the back of his head,
and to kill him instantly.
The verdict might have been murder ; the facts are ample
to support that of voluntary manslaughter.
Judgment affirmed.
SUPEEME COURT OF GEORGIA.
JMhan ■>. M«Idb.
Latmam «». HoLAm.
OiM wbo «Btera Into tbs poasewfoi) of land uoder a parol matnet of
purcbaw, bul wbo has patd no part of Ibe purchase moatf t» tbt
bolder of tb« legal title, is not seised as a^inst tbe latter ud tbow
riahninf under bim; and on tbe deatb of tbe penoo thw iapoi-
seaaion. eTen after be baa tendered tbe porebMo nouey. Us wHow
ie not dowaUe of tbe land. Htle to ntitj doea not pn* by pur.
cbaae wiibout an actual conveyaace, bo long as ihe agreMlpDMbue
■aoDef i^< nnpaid. Tender ie not payment.
Injnmjtion, Dower. Tender. Before Judge Bdchaii*n.
Gampbdl connty. At Chambers. September a»th, 1919.
Mrs. McIaid tiled her bill against Latham and the AtUnta
& Weei Point Railroad Coiapaoy, raakiD^, in brief, A»
oase:
Her hasband, lately deeeasod, on or aboat Janaaiy i, 1S70,
pnrcbaeed from one Thompson, a k>t in the town of Vair-
bura, with the improvements thereon, for tl25.00i Tbomp^
son had never paid tbe railroad company for the lot Sncb
company owned many lots in the towB of Fairbom, vhi«ii
it wag anxioDs to dispose of. To facilitate tbe ea!e it ap-
pointed Cole its agent, with instrDCtions bo open a botJc, in
which parties wishing lots miglit ref^ister their names, tbe
desoriptiou of the property and the price to be paid. On
payment of each price tbe eompany agreed to make a deed-
Thompson registered for the lot in coGtroversy, the price
named beinfi; $50.00. This vas done in l&d9. Tboinpeon
took pwseseion and made valuable improvements, coneistinj^
of a livery stable worth $100.00, fencing $10.00, uU also
hanled logs for the pnrpoee of eroding a home, of the
value of $15.00. On the purchase by McLain, with ll«
full knowledge and consent of the company, he toc^ Thomp-
son's place. He went into poesesBion on or about January
5, 1870, and died on May 20th, following. Since his deatb,
the lot and improvements have been set apart to complain-
ant as a part of her dower, and tbe return of the cDDiiniB-
sioners has been made the judgment of the court S&
SEPTEMBER TERM, 1879. 821
Latham w. McLaIn,
hneband, during his life, made a continuing tender of the
porchase money to the company, bat by neglect of the
latter it failed to make a deed. Since his death complain-
ant has made a continuing tender to the company and de-
manded a deed, but it declines to accept the money or to
execute the deed, because Thompson has notified it that he
ciaima the title. On July 31, 1874, the company executed
a qnit-claim deed to the lot and improvements to Thomp-
son, and on the same day Thompson conveyed to Latham.
The latter purchased with full notice of the right of her
deceased husband and of her claim. Yet he has commenced
bis action for the lot and mesne profits against complainant,
returnable to the February term, 1877, of Campbell supe-
rior court. This suit is unjust and Texatious, and should
be enjoined. The deed made by the company to Thompson
on July 31, 1874, is a cloud upon the title of the estate of
her deceased husband and upon her title to her dower, atXd
ought to be delivered up to be canceled. Thompson is insol-
vent. Prays that complainant's title may be established in
accordance with the judgment of the court setting apart her
dower; that Latham may be decreed to have no right to
said lot ; that the deed made by the company be ordered
canceled, etc., and the action commenced by said Latham
18 aforesaid be enjoined.
On the hearing of the application for injunction the
answer of Latham was read, affidavits, interrogatories and
documentary evidence, all of which is omitted as irrelevant
to the point decided.
The chancellor ordered the injunction to issue as prayed
for. To this Latham excepted.
T. W. Latham, for plaintiff in error.
John 8. Bigbt, for defendant.
Blkcslst, Justice.
In this state a widow is dowable of lands of which her
husband died ''seized and possessed." Code, §1763. The
ordinary method of conveying land is by deed, signed by
322 SUPREME COURT OF GEORGIA.
Ldhoin «. McLaln.
the maker, etc. Code, §2690. Another method of acquir-
ing legal seizin is by paying the purchase money in full,
where a bond for titles or other written contract for Bale
and porchaBe has beeu entered into. So, title may be ac-
quired by preECription. But entering into pos8eesion under
a pfrol contract of pnrohaee, without paying any part of
the purchase money, will not give seizin as against tlie ven-
dor and those claiming under him. And this ie so, though
the agreed purchase money be tendered. Mere tender of
money does not operate as payment, nor work a transmuta-
tion of title. The money which the complainant's husband
tendered to the railroad company remained his money, and
if it was still on hand when he died, became assets of hie
estate. And if he owned the money at the time of hie de-
cease, he snrely did not own the land also. The tender,
together with the other facts, put him in a sitnation where
he might have filed a bill for specific performance, and
obliged the railroad company to invest him with title, but
he did not pursue that conree. He took no etepe to strip
off the title with which the company was clothed. The
most that can be said is, that he died possessed of a right
to become seized of the land by the appropriate proceeding
in equity; and possibly, if the right were now actnally en-
forced by his executors, administrators or heirs at law, so
as to render the land the property of the estate, fnlly and
completely, the widow might be dowablo of it on the doc-
trine of relation. Bat nothing has been done on this line.
The railroad company has not been coerced to perform its
contract, express or implied, with her husband, and no rep-
resentative of the estate is a party to the present bill, nor
are the heirs at law parties to it. The widow simply stands
upon her claim as dowager, and seeks to resist her assailants
by the support which a conrt of equity can give to that
alone. The great fact that the title to tlie land has never
been in her husband or in his estate is decisive against her
bill, and she is not entitled to an injunction. The chancellor
erred in granting it.
Judgment reversed.
SEPTEMBER TERM, 1879. 828
Coggins vs. Griswold .
CoooiNs VS. Gbiswold.
[Wabxbv, Cbi«f Justice, being engaged in presiding over the senate organised as a
conrt of impeachment, did not sit in this case.]
1. The graatee of an executor who shows an order from the court of
ordinary to sell the real estate of testator need not introduce the
wil] in evidence.
2. Wild land may be sold at private sale on leave therefor from the
ordinary, and in the same application there may be a prayer to sell
cultivated and wild land and personalty^ and at the proper time an
order may be passed granting leave to sell each. In the case of real
estate, whether cultivated or wild, it is only of vital consequence
that the citation be duly published, and where that is ordered to be
done and return thereof to be made at the next term, and at the
next term leave is granted to sell the wild land at private sale, the
presumption is that the citation was in accordance with the law,
and that the parties in interest all had legal notice. Minor irregu-
larities will not vitiate the sale and defeat the title of the purchaseri
especially as against a more squatter on the lot without any title.
Evidence. Administrators and executors. Title. Sales.
Before Judge Lester. Gilmer • Superior Court. May
Term, 1879.
Griswold brought complaint for land against Coggins.
Plaintiff claimed by virtue of a deed from the executors
of Brown. The jury found for plaintiflP. Defendant
moved for a new trial. It was refused, and defendant ex-
cepted.
For the other facts, see the opinion.
Thos. F. Gbeeb; W. T. Day, for plaintiflE in error.
H. R. Foote, for defendant.
Jackson, Justice.
Two questions are made in this case : First, that the
court erred in admitting in evidence the deed of executors
of Brown and the letters testamentary without the will of
SUPREME COURT OF GEORGIA.
testator, and secondly that the court erred in admittine
said deed, becaose tliere was no safficient actliority to sell
the lot sned for from the coort of ordinary of Baldwin
county.
The suit was ejectment for the lot, and tlie title of plain-
tiff is perfect, if this link from the executors of Brown, de-
ceased, to plaiiitifE be sound.
1. If the suit be by the executors to recover the land, ve
think they shonld show as well the will as their letter;
beeanse the will may have given the land to the defendsnt.
But where the execntors have sold the land to another
ander a valid order from the court of ordinary, the pre-
snmption is that the ordinary, being a coart of genenil
jurisdiction over snch matters, 50 0^., 231, has granted the
order circumspectly, and could not have done so, had anj-
thing in the will which was before him and of record in his
court, been opposed to the grant of the order to sell.
3. So that the case turns on the validity of the order.
The record shows that application was made to ecll a cer-
tain tract in Baldwin eonnty, and also this wild lot described
as being in Cherokee, but proven to be the lot sned for is
Gilmer county. The petition prays that the nenal citation
be published returnable to the October terra, 1875, of the
court of ordinary of Baldwin county, and at that term that
an order be passed to Bell the real estate of deceased testa-
tor, consisting of the tract in Baldwin and of a lot of wild
laud in Cherokee, containing 160 acres, and also the personal
property if necessary — the sale to be for payment of debW
and diBtribnCion among the legatees ; and this petition itbe
filed in office September 6, 1875.
Accordingly, at the same September term, 1875, an order
was passed allowing the executors to sell the perishable
property, and that the usual citation be published in the
Union and Recorder for leave tii sell the real estate, and be
returnable to the October term, 187S.
Thereupon, at that October term, 18T&, no person object-
ing, an order was passed granting leave to sell the Baldwin
SEPTEMBER TERM, 1879.
Coggltu n. Ordwold.
tract, after dal; adfertisinf^ ihe eame, at pTiblic outcry, and
the wild lot in Cherokee " at private sale or otherwise as
shall be to the beet interest of said estate."
Whereupon, on the Uth day of April, 1877, a deed was
made by the executora to the plaintiff, in which it is recited
that at private sale on the first of April, 1877, the lot was
put np and exposed to sale and knocked off to the plaintiff,
who was the highest and best bidder.
Under the order the executors conld have sold to the
plaintiff without putting the lot np at auction : therefore,
while it is irregular to have done so, we do not think that
it if siicli an irregalarity as makes void the deed so as not
to pass the title.
So, too, in regard to the application for leave and the
order to sell — the one not precisely following the other —
whilst tbey mi)^it liave been drawn with more accuracy,
yet taking them and construing them together, it appears
clear that ihe onliniiry granted leave to sell the entire realty
of testator — the cultivated land at public outcry according
to law, and the wild land at private sale or otherwise as
deemed best by the executors.
Tlie defendant was a mere squatter with no written title at
all, and therefore she did not hold adversely to the true
owner, and it was iiiinecesaary to recover possession before
the executors couid sell. Code, §2564. See also Code,
g§j557, 2559, and 50 Oa., 231, before cited.
y?e know no reasrpu why the executors could not em-
braoe in one appHcatJDn the grant of leave to sell csltivated
and wild land — th(? one at public and the other at private
Bale — and publish the citation usual in each case ; and this
seems to have lieeri done, nor was it necessary to describe
the land. Ae it was done it was better to have been done
a>ecurately by numiicr, etc., and as lying in Gilmer, origi-
nally Cherokee ; hut it does not, we think, make void the
sale. Tho preBULiiption is that the ordinary did his daty,
aud saw from proots before him that it was to the interest
of the estate to sell. »nd, Dobody objecting, he granted the
order.
326 SUPREME COURT OF GEORGIA.
B«iuiett 4f ta. H. Wttkei it al., coauniuioaen.
Something was said about the seal of the court of ordi-
nary of Baldwin coonty. It purports to be its eeal in the
record and is enough, we presume, to certify the. letters
testameotary — if indeed they were necessary to the case,
when an order to sell was in evidence.
Judgment affinned.
Bennett et ux. vs. Walkkb et al., commiBsionore.
1. B7 express provision of the constitution or 1677, all Buits by or
against a county must be in the n&me thereof. It follows that when
the county magistracy, such as commission era, sue for land ofQcially
in their own names, uo recovery can be had if they have had ao
actual poBseesioD, and if the title is not in tliem but in the county.
2. When the anme persons or board constitute the corporate magis-
tracy of a county and of a city, and, in complaint for land, they sue
in the former character upon piescrlptive title in the county, they
cannot recover on proof of title in the city.
8. Acceptance of a deed from tlie ordinary, made by him officially, is
arecognitlon by the purchaser of title In the county at thedateof
the deed, and whilst the purchaser is in possesgioD under such deed
beholds under the county. The deed of the ordinary does not pan
title out of the county, he having no legal power to make it, but
only to authorize it to be made by some one or more other persons
as a commission. Such deed, however, if free from fraud, will be
color of title on which to base a prescription ; but if tainted with
actual fraud aSectIng the conscience of the purchaser, possession
under it will not avail- The jury may infer actual fraud from a
false recital in the icstrumenl as to the mode of sale, together with
inadequate consideration, and the further fact that ihe sole consid-
eration was a claim by the purchaser for insolvent costs due him as
sheriff, to the payment of which the general revenue or the properly
of the county could not by law be appropriated, the claim being •
legal charge only on fines and forfeitures.
County matters. Parties. Ejectment. Deed. Color of
title. Prescription. Fraud. Before Judge Flbhinq. Mc-
intosh Soperior Court. May Terra, 1879.
On September 19, 1878, the conntj commissioners of
Mcintosh county brought complaint against James R. Bon-
SEPTEMBER TEEM, 1879.
BanDetl«(ux. t«. Waiket tt al,, commlFilim
nett and his wife for a lot of land in the city of Darien and
mesne profits.
On November let, 1878, the dofendante pleaded the gen-
eral ieeae, and on May 1st followinf^, at the time of going
to trial, amended by pleading title byprescription, by deny-
ing that the land had been of any profit, by alleging that
Bennett purchased ionafide, and being in possession ander
a claim of right, enbstantial improvements were erected to
the value of $800.00, praying compensation therefor in the
event of recovery by plaintiffs of the land. The evidence
for the plaintiffs presented, in brief, the following facta ;
The old court-house waa on the lot in controversy from
1829 to about 1864, when it was burned. It was not used
in any way thereafter until about the year 1863, when the
defendants took possession. The land comprised a reserved
lot formerly belonging to the city of Darien, used as a
place for shows, etc. At least twenty years before 1861 an
arrangement was made between the city of Darien and the
comity of Mcltitfisii under which the justices of theinfericr
court erected a coiirt-iiouse on the lot, and it then ceased to
he used by the city in any way, and was always under the
control and custody of the connty. No deed was ever
made from the city to the county. The latter never used
the lot after the old eonrt-honse was burned. A. new conrt-
houee was erected on a different lot after the war ; that was
bnrned in 1873; the present cmrt-house was erected on
the same spot in 1S77.
Here the plaintiffs closed, and defendants moved for a
nou-snit. The motion waa overruled, and they excepted.
The defendants introdnced a deed to James R. Bennett*
from the ordinary, conveying the property in dispute, com-
mencing as follows :
"Bt*tb OB" Qkoboia, Mi^Iotosh county :
" WherGBB (he boDorahle Lewis Jackson, ordinary of the count; of
Mcintosh, in tbo state ut'iresHid, dtd pitas an order on the ITth of Au-
gnit, 1600. to sell bi public outcry, at the court-house door In the cltj
of D&rieu, on Moudiiy, ihc 33d of August, 1HQ9, between the legal
SOPEEMK COCBT OF HEOEGIA.
Bennea it ux. h. Walker el al., commlikktBan.
hours of e&la, the lot on wbioh the former court-house st«od; aod
wbereas, od said 83il of August, 1869, in eompltance wilh said order,
the said lot was put up At public outcry as directed, wbcn Jnmes R,
Bennett become the highest aud bestbidder. and the aumc was knocked
ofl to him, tho Mid James It. Bennett, for tSUSO: Now, this indent-
ure, made the Z3d of August, ]869, between the said Lewis JacksoD,
ordinary as aforesaid stated, of the first part, and ibe said James R.
Bennett, of the county and state aforesaid, of the second part, wit-
nesaelh," eU;.
Defendants farther proved the ralne of the improve
menta, and closed.
Flaintiffe introduced Lewis Jackaon, colored, who testified,
ID brief, ae follows: Made the deed introdnced b; defend-
ants. The lot waa not sold at public outcry. Witness aold
it to Bennett privately for an insolvent coat bill he held
against the coanty as sheriff, for |51.60. Considered that
he had the right to sell the lot to aatiefj the claim. Wit-
ness made the order for the aale of the lot, as the deed
recites, and the eale was fair and bona fide on both aides.
Bennett receipted hia claim agaioat the conntj in fnll.
Much other testimony was introduced, not deemed mate-
rial.
The jury found for the plaintiffa the premiaes in dispute.
The defendants moved for a new trial upon the following,
among other grounds:
1. Because the verdict is contrary to law, evidence, and
the charf^ of the court.
% Because the court refused to give in charge the fol-
lowing reqnests:
(a). "The deed of defendant upon the sale of the lot in
question, at public or private sale, by the then ordinary of
Mclntoah connty to defendant, James B. Beniiett, for a
debt legally duo by the county to defendant for services
regularly rendered, and for which the connty waa liable, is
such color of title as can be shown by defendant, provided
the purchase was bonajide and in good faith on the part of
Bennett."
(b). Keaneatod to give in charge §2683 of the Oode.
SEPTEMBER TERM, 1879. 329
Besnett «l ux. vi. Walker et ai.^ commiBsioners.
(c). ^' The fact that the sale was irregalar and improper
on the part of the ordinary, cannot go to impeach the right
and title of Bennett, if he purchased bona fde^ for a valu-
able consideration, and has been in such possession for seven
years before the bringing of this suit, as set forth in §2683
of the Code."
(d). Requested to give in charge §2906 of the Code.
(e). *'The ripening of any prescription under §2683 of
the Code, was not arrested because of the fact that no county
commissioners were appointed until 187:2."
3. Because the entire charge of the court, being substan-
tially as follows, was calculated to mislead the jury :
" I charge yon, gentlemen, that if the county was in the
uninterrupted possession of the land in dispute for twenty
yeara or more, then the county acquired a title, and the law
presumes a grant from the state, and the plaintiffs have a
right to recover. But the defendant also claims a title by
prescription by reason of having been in possession of the
lot f^even years under the deed from the ordinary of the
county. Now if the defendant has been in such possession,
under snch color of title, for seven years or more before
the bringing of this suit, then he has a perfectly good title
anleee the deed was fraudulent. The question of fraud is
one for the jury under the proof in the case. If the deed
was made fraudulently then it conveyed no title to the
defendant, and he has no right to the property. The whole
point in the case is about the fraud. If there was no
fraud then you should find for the defendant ; if there was
fraud then you should tind for the plaintifiEs."
4. Because the court refused the non-suit moved for on
the close of the plaintiffs' testimony.
5. Because of newly discovered evidence to the effect
that the sale under which defendants held was made at
public outcry, as recited in the deed.
In support of this ground numerous affidavits were pre-
sented, which strongly indicated that the fact was as therein
stated.
SUPREME COURT OF GEORGIA.
Tlie raotiuQ waa overrulet], and the defeodantB excepted.
W. R. GiaNiLUATT: Tompkins & Denuark, for piaiotiffs
in error,
Rcpoa E. Lbstgr, for defendants.
BLKORLEf, Justice.
1. Tiie constitution of 1877 declares, in article lllh, eec-
tioQ 1st, that " all siiit^ hy or against a county, shall ho in
the name thereof." The case at bar was commenced after
this conetitntion ^vent into effect, and waa not in the name
of the county, but in the names of certain persons describ-
ing themselves as county commissionere. By the local act
applicable to the subject, these commissioners constituted
the proper board of magistracy to bring the action, bnt
under the provision of the constitntion juet cited, it cannot
be regarded as a suit by the county, not being in tlic name
of the county. Possibly, if the evidence ehowtd that the
commissioners had once had actual posseneion of the prop-
erty sticd for. and had been deprived thereof, the action in its
present shape might be maintainable to re-establish their poR-
eession, but no such fact appears. And it is not pretended
that as individuals or natural persons they liave any title to
the premiaes. However ample may be the title of the
county, there can be no recovery on it, -for the very conclu-
bItc reason that the county is not before the court as a
suitor. The county can he neither plaintiff nor defendant
otherwise than in its own name.
2. Taking together the body of the declaration and the
abstratjt of title annexed to it, and it ii manifest that the
comphiint is founded upon prescriptive title in the county
of Mcintosh, and not upon any alleged title in the city of
Darien. It is also clear that the character in which the
plaintiffs Bue has no relation to their functions as represent-
atives of the city, but that they sue only as official oi^ns
of the county. And though true is It that by the act ere-
SEPTEMBER TERM, 1879. 331
Bennett «t uz. vt. Walker H aj., commiselooers.
ating the board of commissioners (see Acts of 1876, p.
283) the same persons constitute the corporate magistracy
of both county and city, yet the two corporations ai*e not
thereby blended or oonfonnded, bnt they remain distinct
and separate entities. It follows that the present action can
no more be treated as a sait by the city than it can be treated
as a suit by the county, and that no recovery could take
place on any title which the evidcrtce may show to be, or
to have been, in the city of Darien. In statutory complaint
for land there is no fiction, and failure is inevitable where
the party who brings the suit does not show in himself a
right to the premises. The non-suit ought to have been
granted on the defendant's motion.
3. If the county had been the party plaintiff in its own
name, the result of the suit, under the facts in the record
as a whole, should have turned upon the question of fraud
or no fraud in the defendant's color of title — the deed from
the ordinary under which the defendant took possession and
held through the prescriptive term. That deed was made
by the ordinary as representing the county, and by accept-
ing it the purchaser recognized the county as owner of the
premises at the time the conveyance was executed. So long
as he held and ooenpied under the deed, he was in under
the county as his acknowledged vendor. The deed would
not operate as a conveyance of title out of the county, fot
the reason that the ordinary had no power to make it. In
section 495 the Code declares, that '^ the ordinary has the
control of all property belonging to the county, and may
by order, to be entered on the minutes, direct the disposal
of any real property which can lawfully be disposed of,
and appoint a commission to make the titles thereto, and
the conveyance of such commission in accordance with snch
order vests the grantee or vendee with the title of the
county." For some reason, perhaps to prevent clandefitina
transactions injurious to the county, the ordinary is not
permitted to execute any conveyance himself ; he can only
appoint a commission for that purpose^ But even a void
V 51-21
882 SUPREME COURT OF GEORGIA.
deed, if believed to be valid, and taken in ft;ood faitb, iriH
serve as color of title on which to rest a prescription;
thoQgh if tainted with actual fraod affecting the conecieDee
of the purchaser, it will, of coarse, be nnavailing. Code,
|S683. There seems to have been some qaestton of the
mode of sale ; and the recital of the deed on that enbject
was assailed as false. There was also a qnestion toacbin);
the adequacy of the oonaideration ; and there was evidence
to the effect that the entire consideration was made np of
insolvent coats which were a legal charge only on fines and
forfeitures, and to the payment of wbicli the general reve-
nne or the property of the connty conld not lawfully be
appropriated. Nodoabt these matters bore strongly agaiDst
the good faith of the entire transaction, and wonld warrant •
jury having convictions that way in finding fraud.
It follows from what we have said that the court erred
both in refusing to grant a non-snit and in overruling the
motion for a new trial.
Judgment reversed.
Pabbott et al. w. Edmomubos.
,. Tbewll) tf (Matrix cootBlned tfae following devliw:
'I give and bequeath to mj aephew. Sterling O. Barrow, tnd mT
niece, Mary Jane Barrow, wife of aaid Bterling G. Barrow, for Uia
daring llielr natural life, lol of land number 251, in the ISib di»
trlct of Houston county, containing 303^ acres, with the riglil aa^
privilege lo aell the aaoie if deemed proper by them to do so, ■'>*
the proceeds thereof to invest in other lanilB or othu proP"
erty, and to use the same as before stated, And at their deitb
tbe said lot of land, or the proceeda thereof, to be eqatllf dh
Tided between the following cbiidren of the aaid Sieritog 0. u^
Mary Jane Barrow (naming them) and all others that taa; Iw*'
after be born." etc. Sterling O. and Mary Jane were reliWd
in the same degree by blood to tesUtrix, were the principal aA
residuary legatees. Sterling Q. woe appofnted executor on Ibe Kl>
of May, 18Se, and died Sd of December tbereafter. HuT lu*
■urvived until 19th of December, It)76. On l&e Slat of JanuuT'
18S9, while aurvivor of her aoid husband, she conveyed foi vtlnt
SEPTEMBER TERM, 1879. 838
I'trrotte/o/. vt. Kdmondson.
the one-half of said Ut to her son James, and inyested the proceeds
in a negro man slave, with whose labor she cultivated the other half
until 1865, and being possessed of but little other meacs, thus sup-
ported in good measure herself and the said children durini; that
period. The children surviving her, being remaindermen under
the will, brought suit at her death for the half lot sold by her (the
proceeds having been invested as aforesaid by her) against tlic de-
fendant who held under James and by virtue of title from Mary
Jane Barrow, their mother, as survivor:
Eeid t. Whether the wife, as survivor, could sell under the joint
power, to herself and husband, depends upon wliether she had an
interest in the land — ^a power to two to sell, if coupled with an
interest, survives to the survivor; if nalted, it does not survive.
S. Under the law of England husband and wife took under this devise
an entirety and not a severalty— not being undnr that law joint
tenants, but each holding the entire estate as one person, and on
the death of either, the survivor taking the whole.
8. If the statute of Georgia abolishing joint tenancy and converting
that estate into tenancy in common and abolishing the survivorship
in such an estate, be not applicable in reason and spirit to the law
of the mother country in respect to the estate in entirety which hus-
band and wife would take there, then the interest of the wife in the
land is clear, because that law, unless repealed by our statute, is of
force in this state; and the power being coupled with such interest,
she, as survivor, could sell.
i. If this estate in entirety with survivorship in the case of husband
and wife, was abolished by the statute before mentioned, still, at
the death of testatrix, the wife, by our own repeated adjudications,
bad such an interest in property bequeathed to her during coverture
that a court of equity would settle it upon her against the husband
and his creditors, and free it from his control. by bill brought before
he had reduced it to possession and his marital rights had attached;
the power to sell is thus coupled with an equitable interest in the
wife: and thus, in any view, this power to two to sell being coupled
with an interest in each, survived to the wife.
6. 6o the title to this half lot passed from the surviving wife to her son
James, thence by regular chain down to defendant, and the judg-
ment of the superior court is right, and eminently equitable and
just.
Wills. Estates. Husband and wife. Title. Before
Judge SiMuoKS. Houston Superior Court. May Term,
18Y9.
Reported in the head-notes and opinion.
834 6UPKEME COURT OF GEORGIA.
Panott tl al. vt, EdmondaoD.
DtJNCAM & MiLLSB } S. Hall, for plaintiffs in error.
Warbkn & Grick ; W. S. Wallaok, for defendant.
J&CKBOM, Justice.
Tliis action was brought by plaintifia in error as remain-
dermen, to recover a parcel of land sold bj their mother
while in life under a clauBe of a will which bequeathed the
land to herself and husband, remainder to the plaintiSB,
with joint power to eell. The defendant held under the
mother, who sold after her husband's dentil, and the single
question made is, did she, as survivor, have the right to
sell so as to cut off the remainder )
The clanse of the will is as follows: "I give and be-
queath to my nephew, Sterling G. Barrow, and mj niece,
Mary Jane Barrow, wife of said Sterling G. Barrow, for
and during their natural life, lot of land number 25!*, in
the 13th district of Houston county, containing 202^ acres,
with the right and privilege to sell the eaioc, if deemed
proper to do bo, and the proceeds thereof to invest in other
lands or other property and to use the same ae before stated ;
and at their death the said lot of land, or the proceeds
thereof, to be equally divided between the following chil-
dren of the said Sterling G, and Mary Jane Barrow {nam-
ing them), and all others that may hereafter be born," etc.
The rule is that where a power to sell is entrufted to
two persons, the survivor may sell, if the survivor has an
interest in the thing to be sold. A mere naked power will
not survive. Espeeially is this the case, that the power sur-
vives, where they are executors or trustees and act in a fi-
duciary capacity, and may sell to execute tbe trust. 4 Kent,
826 ; 2 Bouvier, 343 et seq. Here, though one only was ex-
ecator, yet both were trustees to sell and reinvest for their
own and their children's use. 1 Teeey, Sr., 306; 3 fh.,
II ; 2 Johnson Chan., 1, 20 ; 2 Peere Wm'e, 102 ; 1 Cuine's
SEPTEMBEK TERM, 1879. 335
Parrott 4t al. «*. EdmonlBon.
Cases 15; 3 Salk., 277; 3 Atk., 714; U Johnson, 553; 15
Ih., 345 ; 10 Peters, 563.
The question therefore is, did Mrs. Barrow have an
interest in this land ? We think that she did. Under the
English law she certainly wonld have had an interest
therein, bccanse she and her husband took an entirety
and not a severalty in this land nnder the devise above
cited; they wonld not have been joint tenants, but each
wonld have held the entire estate as one person, and on the
death of either the survivor took the whole. 2 Chitty's
Blackstone, side page 182; 5 Tenn. R, 654; Litt., 291; 2
Cru. Dig., 511; 5 /J., 448.
Bnt perhaps the statute of this state, which turned estates
by joint tenancy into tenancy in common, may, by a liberal
construction, as it abolished the doctrine of survivorship in
such estates, be held also to extend to estates to husband
and wife, and to abolish survivorship in such estates as this,
and thus to alter the English law as to this wife's interest as
snrvivor in all this land. It does not in terras do so, but its
spirit probably does, and so it has been intimated in some
of the opinions of this court.
Be that as it may, it is certain that this wife had such an
interest in this land, or her moiety of it at least — and a
moiety is all she sold and all that is involved here — as that
equity would protect it and settle it upon her against her
husband and his creditors. 1 Kelly, 639 ; 3 /&., 192,
546; 29 Ga., 117.
If it all had been left to her, it would have been secured
to her ; if her husband and herself were both legatees, why
wonld not equity, on like principle, secure her half?
If it be said that she did not by bill apply for it until the
husband's marital rights had attached, it may be answered
that the husband died in a few months after the testatrix,
before such bill could well have been filed, and whether or
not he had reduced the estate to possession does not appear.
Even if he had entered thereon, man and wife were one,
and the entry was joint. Nowhere, clearly, did he ever set
SUPREME COURT OF GEORGIA.
up exclneive title or take several posseseion. 35 Ga,, 184.
Besides it is clear that this power is fiduciary. As stated
before there is coupled with it a trust to reiovest for the
use of the life teoautB, and the reiaaiDderinen. Id no view
is it a mere naked power.
Besides this le^l view of the case, looking at it etrictlj
in dry legal right, equity, in the broader eenseof right, de-
mands that the verdict for the defendant ehould stand,
unleEB the law imperatively demanded its overthrow. The
half of the lot was sold and a negro bought to work the
other half. On it the widow and children lived, and the
labor of the slave, bought according to the spirit of the will,
to work this land, supplied these plaint!^ in error with
subEistence during the war, and now, after the expiration of
more than eighteen years since the sale by the widow, the
title of a pnrcbaEer for value is sought to be disturbed. It
ought not to be done, and we are gratified that the law does
not constrain us to do it.
The law does not so force us, neither in a strictly l^^L
nor strictly equitable view on settled principles 6f estab-
lished rnlea of equity in the hooks. The power to two to
sell was coupled with an interest in each — equitable interest
is enough. The general intent of the power is clear, and to
that general intent any narrow, particnlar view must yield.
And a trust to reinvest for the use of others in remainder
&i, well as themselves for life, is clearly in the power, and
tbi.'y are trustees quoad hoc, and the mere name of execa-
tuTH is nothing — see 11 Johnson, 168; 16,/i., 166, and
authuritiee above cited
Judgment affirmed.
SEPTEMBER TEBM, 1879. 83T
AUen al tU. cv. Meyerhardt.
Allbk et al vs, Mktebhardt.
Where the claimant of an existing private way has applied for the
removal of obstrnctions under section 788 of the Code, and has ac-
cepted a conditional order instead of standing upon his right to hav4i
an absolute order, the question of whether he has complied wiih the
condition or not is one of fact; and upon a further petition alleging
compliance, and praying for a warrant to the sheriff, the sole ques-
tion 18 whether he has complied or not, and the commissioners of
roads and revenue should adjudge according to the evidence, and
refuse or grant the warrant without more. And, on certiorari, this
is the sole matter for review if the commissioners have confined
themselves to the question. But if they have gone further and
ordered the way closed, this is an excess of their authority, and the
certiorari, as to that part of their order, should be sustained. As to
the fact of compliance with the condition, tlie superior court should
either afilrm the judgment, or reverse it and order a new trial. Any
direction as to locating the road or putting up gates, is not within
the scope of the proceeding. The petition to the commissioners of
roads and revenue is confined to the one object, and that Is to
obtain a warrant commanding the sheriff to remove the obstruc-
tions. The right to this depends upon whether the condition pre-
scribed in the previous order has been performed.
County matters. Roads and bridges. Jndgment. Cer-
tiorari. Before Judge Undbbwood. Floyd Superior
Court. March Term^ 1879.
Meyerhardt petitioned the commissioners of roads and
revenue of the county of Floyd, substantially as follows:
He is the owner of lot of land 45, in the 22d district and
3d section of said county. For fifteen or twenty years he
has used a road or private way to his said farm running
over land now owned by Allen and Jones. They have
fenced or closed said road, the same being the only outlet
from the petitioner's farm. He made complaint to the
parties for closing the road, and allowed it to remain closed
to the present time with a distinct understanding that they
would remove the obstructions and open the road, which
they have refused to do. Prayed that they may be required
to show cause why said road should not be opened.
338 SUPKEME GOtTET OF GEORGIA.
Allen it al. v>. Mererbudt.
Cause was shown, a trial had, and od June 4, 1877, judg-
ment as follows rendered : " Ordered that the petition be
granted tinder the following conditions, to-wit : D. J,
Mejerhardt shall be allowed ninety days from date to pnt
(he road from hie farm to the Cedartown road in good
order, said road to be of the width of twelve feet; the
condition of said road to be passed apoii and approved by
the road commissioners of Barber's district ; the same being
done, the said Allen and Jones shall, within ten days after
being notified of the approval of said road eonimissioners,
construct and put up gates at the places of the obstroctions,
for the Qse of D. J. Meyerhardt. It is further ordered
that if said Meyerhardt fails to comply with the terms of
the above order, and does not have said road pnt in good
condition in the time specitied, then said private way sliull
be declared closed."
On June 27th following, the district road commissioDere
certified to the commissioners of roads, etc., that they had
examined the road described in their order of the 4th of
June, and find i( in good traveling condition.
On September 14th following, Meyerhardt again peti-
tioned the commissioners, setting forth a compliance with
the provisions of their order of June 4tli. notice to Allen
and Jones, and that they had failed to erect the gates as
ordered within the ten days. He therefore prayed that the
theriff be directed to remove tlie obstructions from the
private way.
Allen and Jones showed for cause that it was not true
that Meyerhardt had complied with the order of June
4th, bnt that he had laid out a new road over the land
of respondutits, in many places departing from the old
road, and coming out into the pnhlic road at a different
place from wliere the old road entered.
On November 5th the commissioners ordered, after
hearing evidence and argument, that as the terms of the
order of June 4th had not been complied with by Meyer-
hardt, that the road mentioned therein bo closed.
SEPTEMBER TERM, 1879. 889
Alien etai. vs. Meyerbardt.
On certiorari this order was set aside by the superior
coart, and on review by the supreme court, the judgment
of that tribunal was also reversed. See 62 Oa., 161. On a
rehearing of the certiorari in the superior court, it was
ordered that the judgment closing the road be set aside,
and that the commissioners direct that said way be opened
as a private way, with the right of defendants to erect
gates where the fences now are ; that if the road is not on
the old road-bed, that Meyerhardt work it on the old road-
bed within ninety days from their order following this
judgment, as per terms of the order of June 4, 1877.
To this judgment Allen and Jones excepted upon the
ground that it did not cover the case made hj the certiorari^
to-wit: whether Meyerhardt had complied with the terms
of the order of June 4th, and extended to matters over
which the court had no jurisdiction in such a proceeding.
Weight & Featherston, for plaintiffs in error.
FoBSTTH & HosKiNsoN, for defendant.
Bleckley, Justice.
The proceedings before the commissioners of roads and
revenue were all under the 738th section of the Code. The
section does not provide for a conditional order, but the
applicant having chosen to accept such, instead of standing
upon his right to have an absolute order, he must comply
with the condition before he can obtain the assistance of
the sheriff. Here the applicant took no exception to the
kind of order that was granted in the firat instance, as he
might have done by certiorari if he had not pleased to ac-
quiesce. That order was, by both parties, left to stand as
it was, and the applicant proceeded to comply on his part
with its terms. By his subsequent petition to the commis-
sioners he alleged that he had complied ; and the truth of
this allegation was the disputed matter of fact, and the
only one, which the petition presented for decision, the
»40 SUPREME COURT OF GEORGIA.
A]lcn tt at. M. Hej'erluidL
advereo party not pretendinf; that they had erected gites,
or otherwise cleared away the obetractions complained of.
After hearini; evidence, the commiBeioners not only denied
the prayer of the petition, but ordered peremptorily tkt
the road be closed. The certiorari, be it observed, was
Bued out njran, and is to be confined to, the aeo-ond order
passed by the commiaeioners ; it does not roach back to the
original conditional order which we have mentioned. All
that the second petition prayed for was a warrant directed
to the sheriff, coiniuanding him to remove tlie obstractions.
To f!;niiit or refuse the warrant was the only jad|;meDt
which the commissioners had power to render upon toch
a petition. Code, §738, supra. It is not insisted that the
commii>sioner8 for Floyd county have any broader powen
than cottid have been exercised by the ordinary if therehsd
been no sabatitution, by special statute, of the former for
the latter in respect to the supervision of roads within that
county. If the evidence showed that the petitioner had
complied with the condition which the previona order pre-
scribed, the warrant to the sheriff shonM have isaoed; ii,
on the contrary, it failed to show such compliance, the
warrant should have been denied. To supplement the
denial of the warrant with an order to close the road, or
that the road be closed, was to pass quite beyond the Utniu
of the petition upon which the commissioners wore acting.
The petitioner asked for bread, and they gave him a Etone;
for a iish, and they gave him a serpent. That they vent
beyond their powers in the first order, and threatened >
closing of the i-oad in the contingency specified, did do*
justify them in consummating the matter by the secood
order. Acquiescence in a void part of the first order, did
not bind the petitioner to a like acquiescence in a void ap-
pendix to the seooad. There can be no doubt that as (o
the final order to close the road, the certiorari ia '*"
founded and ought to be sustained. In respect to the find-
ing of the commissioners upon the issue of fact which tbe;
tried, the superior court should either affirm it, or elBa r^
SEPTEMBER TERM, 1879. Ul
Cohen A Kaplan V9. I>aDcan A Johuaton.
verse it and order a new trial. An v direction as to locating
the road or patting* ap flutes, is no more within the scope
of the proceedings, in the stage at which they have arrived,
than is the closing of the road. If the petition misrepre-
sents the fact of compliance with the condition, the prayer
for a warrant oaght to fail for that reason ; if it does not
misrepresent the fact, the prayer onght to be granted.
What can be plainer than that this is exhaustive of the
whole controversy raised by that petition ?
We reverse the judgment, with direction that the certio-
rari be sustained so far as closing the private way is con-
cerned ; and as to whether a warrant to the sheriff shall
issue as prayed for, that the certiorari be sustained and a
new trial ordered if the judge of the superior court shall
hold that the finding of the commissioneis was erroneous
on the question of fact made by the petition of September
14, 1877; but if he shall hold that the evidence warranted
the commissioners in finding the fact as they did, then that
the certiorari be overruled as to that part of the case, and
sustained as to closing the private way (with costs), but no
more.
Judgment reversed.
Cohen & Kaplan vs. Duncan & Johnston.
Wliere defeodanto put in a plea that they had been adjudicated bank-
rupts, and prayed that the suit against them on promissory notes be
stayed a reasonable time to await the action of the district court of
the United States on the question of their final discharge, and were
ready to verify their plea by exemplification from the district court
legally certified, and the plea was striclKen and final judgment
rendered against them:
Held, that the proceedings in the state court should have been sus-
pended, and that final judgment should not have been entered
against defendants
Bankruptcy. Before Judge Snsad. Burke Superior
Court. November Adjourned Term, 1878.
84S SUPREME COUET OP GEORGIA.
Cohen & EAplui tv. Dnncui A Jiriuuloa.
Beported in the opinion.
H. H. Pbrrt, by MoCat & Abbott, for plaintiffs in error.
J. J. JoHRS, for defeodanta.
Jacksok, Juatioe.
Dnncan & Johnston ened Cohen & Kaplan on two prom-
issory notes. The defendants filed a plea tlmt tlicy had been
adjndicated bankrupts, and therefore * the cotirt could not
enter jodgment against them until the (^ncetioii of their
final discharge was determined, there having been no un-
necessary delay in tho bankrupt procecdingg.
They called the plea a plea to the jurisdiction ; it should
have been more properly styled a plea to stay the proceed-
ings until the final discharge. The name, however, makes
DO difference.
The record discloses tiie fact that the defendants were
ready to verify their plea, having in court an exeinplicatiou
of their petition and adjudication in bankruptcy duly cer-
tified by the clerk and judge of the district court of thb
United States for the northern district of Georgia, yet the
I court, on motion, struck the plea and gave judgment for
) the plaintiffs.
The bankrupt act (Revised Statutes of United States,
§5106) declares, in aubsance, that no creditor whose debt ie
prov&ble in bankruptcy shall be allowed to prut^ecute to
final judgment any suit in law or equity therefor against
the bankrupt until the question of his discharge siiall have
been determined ; but that such suit or proceeding shall be
stayed, upon the application of the bauknipt, provided
there be no nnnecossary delay, etc. This was a debt prov-
able in the bankrupt court ; the defendants had been adju-
dicated bankrupts; they made application by plea to stay
the proceedings until the question of their discharge was
passed upon ; the plaintiffs had no mortgage or other lien
against them, but merely two promissory notes ; the stfttnte
SEPTEMBER TERM, 1879. 848
Cohen A Kaplan m. Dnncan A Johnson.
of the United States in such a case clearly provides that
the suit shall not be prosecnted to final jndgment, but that
it shall be stayed a reasonable time to await the final action
of the bankrupt court on the question of discharge.
The court below, therefore, erred in giving a final judg-
ment after striking defendants' plea.
In the case of JSteadman vs. Lee^ 61 Oa., 58, no plea at
all was tiled, and no application of any sort was made to
the state court to stay the proceeding, and judgment went
against Steadman because it was not made known to the
court that he had b«^en adjudicated a bankrupt. So when
he filed an affidavit of illegality to the execution issued on
this judgment, this court held that the judgment was good,
it being older than his discharge, though junior to his pe-
tition and adjuQication; because by his own laches he had
failed to make any plea or application of any sort to stay
proceedings pending his petition and before his discharge.
But in this case there is no laches. The plea was in ; the
exemplification from the federal court exhibited; and the
act of congress in strict accordance with the constitution of
the United States, and therefore authoritative over the state
courts, prohibits final judgment, and declares that the suit
shall be stayed on the application of the bankrupts.
Of course the statute means that the application shall be
made to the court where the suit is pending.
We think-that the court erred in striking the plea and
entering final jndgment, and the judgment is reversed.
Judgment reversed.
844 SUPREME COURT OF GEORiilA.
Jaduon v§. The rotate.
Jackson va. The State of Oeoboia.
[WABHXRyCbief Justice, being ciigtig«d in prealdtng oyer the aenate oismisedM «
court of impeachment, did not tit in this case.}
1. An indictment is not demurrable for any matter de?U>n tbe plead-
ings and the record.
2. After tbe state baa rebutted tbe prisoner's eTidence and closed, it is
too late for tbe prisoner, as matter of rlgbt, to introduce and exam-
ine a frcsb witness on bis general case, unless some good excuse is
rendered for bolding tbe witness back; and if no excuse be offered,
the court may decline to hear the witness, except in sur-rebuttal of
the state's rebutting eTidence.
8. Tbe charge of tbe court in respect to altln was in conformity to 59
Ga.f 142; and in respect to tbe evidence of an accomplice, it was in
conformity to Roscoe*s Or. £▼., 456, et Kg., and to 53 Oa., 106. 898.
As to threats, see 48 Oa., 12, and 58 id., 234; and as io faltfwt in vm
f alma in amndbus. see 59 Oa., 68; 53 lb,, 865, and cases ifaerein
cited. On the impeiicbment of witnesses and their support by evi-
dence of general character, tbe charge of the court was correci
and 6uf]9cient1y full.
4. It was not error against the prisoner to instruct the Jury in terms of
the act of December, 1878, on the relative powers of the court and
Jury over the punishment.
5. Tbe jury bad a right to convict tbe prisoner* on the evidence in tbe
record, tbe accomplice being corroborated indirectly on the main
point by several circumstances of more or less M'eight; and tbe
court did not err in overruling the motion for a new trial.
Criminal law. Demnrrer. Evidence. Witness. Prac-
tice in the Superior Court. Alibi, Accomplice. Threat*.
Charge of Court. New trial. Before Judge Ckisp. Lee
Superior Coui't. March Term, 1879.
Jackson, Jones and Daniel were jointly indicted for the
murder of Whitsett, alleged to have been committed on the
13th of October, 1878. The defendants severed and Jack-
son was first placed on trial. The evidence against him
consisted mainly of the testimony of Daniel, an accomplice.
Whitsett was undoubtedly assassinated by being shot
through the window of his room with a load of buck-shot
Daniel swore positively that Jackson did the shooting ; if
SEPTEMBER TERM, 1879. 845
Jackson v#. The State.
his testiniony thus far be taken as true, he was undoubtedly
an accomplice. He was corroborated by circumstances of
more or less weight, which made a case proper for the de-
termination of a jury. A verdict of guilty was returned,
and Jackson moved for a new trial upon the following,
among other grounds :
1. Because the court erred in sustaining the demurrer
to the motion to. quash the indictment upon the ground
that the defendant was charged with the murder of Whit-
eett on October 13th, 1878, when said Whitsett was in life
on that day and for many days thereafter.
2. Because the court erred in charging the jury as follows :
^^Altdij as a defense, involves the impossibility of the pris-
oner's presence at the scene of the offense at the time of its
commission, and to be successful the range of the evidence
in respect to time and place ought to be such ac* to lay the
foundation for reasonably inferring that the prisoner could
hot possibly have been present at the time and place of
killing."
8. Because the court erred in charging as follows : "The
corroboratron ought to be sufficient to satisfy the jury of
the truth of the evidence of the accomplice. If the jury
are satis'iied that he speaks the truth in some material part
of his testimony, in whicfh they see him confirmed by un-
impeachable evidence, this may be a ground for their be-
lieving that he also speaks the truth in other parts as to
which there may be no confirmation ; but the corroboration
ought to be as to some fact or facts connecting the prisoner
with the offense, the truth or falsehood of which would go
to prove or disprove the offense charged against the pris-
oner.''
4. Because the court erred in charging as follows: "A
witness impeached by proof of his general bad character —
that is by witnesses swearing that they would not believe
him or her in a court of justice — may be sustained by sim-
ilar proof of character, that is by witnesses swearing
they would believe him or her on their oath. How far an
8TTPREME COURT OF GEORGIA.
impeachment is succeBBful is a question for the jury, Yoa
are the tribunal that ia lo pass upon that."
5. Becaaae tlie court erred in charging as follows : " The
punisbmont for personB convicted of murder shall bo death
— but may bo confinement in the penitentiary forlife in the
followinj; cases : If the jury trying the case shall bo re-
commend, or if the conviction is founded solely on circam-
atantial testimony, the presiding judge niaysentence to con-
finement in the penitentiary for life. In the former case it
is not discretionary with the judge, and in the latter it ia.^'
6. Becanse the court erred in not permitting the intro-
duction of Silas Wright as a witness for the defendant, who
had been sabpamaed, notwithstanding the declaration of
defendant's counsel that this witness had not been called by
inadverteDce, and that his testimony was material.
7. Becanso tho verdict was contrary to evidence, law,
and the charge of the court.
The court appended to the 6th ground Che following
note:
"DefeadaDt proposed to latrodiu-e the witness utter tbe stale bad
cloBed. tbe deFundaat closed, and the stnte in rebuttal closed. Tbe
court dccliDod to permit the witness lo hcexnmiDed except ]□ rebullat,
counsel for detcndnnt not Hiattag tlint the; had omitted examining
him through inudrertcnce."
The motion was overruled, and defendant excepted.
Lbwib Arnqeiu, for plaintiff in error.
C. B. Hldson, solicitor-general ; D. H. Pops ; H.a.wkikb
& HAWKitta, for the state.
Blboklgt, Justice.
1. A motion to quash an indictment is in the nature of a
demurrer, and ought to be reefed upon some matter appar-
ent upon the face of the indictment or elsewhere in the
record. 4 Hiilat., 293; 19 Conn., 477. Such a motion can-
not bring to the attention of the court a fact disconnected
SEPTEMBER TEEM, 1879. 347
JackHon vs. The State.
with the prior proceedings and the truth of which depends
upon evidence €?^A<?r5 the record. The indictment alleged
that the mortal wound was given on a certain specified day,
and that on the same day the man died. The motion to
quash set up that the man was in life on that day and for
nmny days thereafter, and that the indictment ought, for
this reason, to be quashed. The state demurred to the mo-
tion, the demurrer was sustained, and the motion went out.
We can have no doubt that the motion was only an informal
traverse of one of the allegations of the indictment, and
that the ipsue it sought to raise was quite too narrow, and
quite immaterial. Let the substance of the motion be
regarded as a special plea, and it presents no sufficient an-
swer to the indictment ; for it is not essential that the date
of the oflfense should be proved exactly as charged, the
limits of proof being, on the one hand, the finding of the
bill of indictment, and on the other, the earliest period not
excluded by the statute of limitations. 4 Ga., 341 ; 11 /J.,
53 ; 13 i J., 396 ; 17 /J., 439 ; 18 /J., 736. True it is that
the offense of murder is not complete until death has oc-
curred, but it the death and the mortal wound fall upon
the same day, it matters not that the day be subsequent to
that laid in the indictment, provided it has elapsed when
the indictment is found. To show simply that the deceased
was alive after the time that the indictment alleges he died,
is no ground for acquittal.
2. In reference to the restriction put by the court upon
the examination of the witness Wright, it is to be noted
that this witness was offered when the adducing of evidence
was in what may be termed the fourth stage. The state
had gone through its case; the defense had gone through
its case ; the state had rebutted ; and the defense then
brought up Wright and proposed to enter afresh on its
general case, giving no excuse for the omission to introduce
the witness at an earlier stage. The court required the ex-
amination to be restricted to matter in sur-rebuttal of the
Btate's rebutting evidence. It was no doubt within the
VM-2a
348 SUPREME COURT OP GEORGIA.
Jackeon tv. The State.
discretion of the conrt to have allowed a wider range of
examination, bat we think the defense coald not claim it as
matter of right, nor do we see that the conrt abnsed its dis-
cretion in denying it. There has to be some order in
submitting evidence, and the court bat adhered to the
usual order. Any departure from that order ought to be
attended with something special in the given instance, either
in the shape of excuse by the dilatory party, or some sug-
gestion which the circumstances transpiring under the ob-
servation of the court make to the mind of the presiding
judge. Surely it is not allowable for a party to cut up his
evidence arbitrarily at his pleasure, and present it by install-
ments, with no regard to the particular stage or stages at
which its introduction is appropriate. The motion for a
new trial affirms that the inadvertence of counsel was men-
tioned as an excuse for holding Back the witness, but instead
of verifying this statement, the presiding judge expressly
contradicts it.
3. Several of the points made and argued may be grouped
under one head, and disposed of by a mere reference to the
authorities which control them. On the subject of (d^
the court charged the jury conformably to the view ex-
pressed by this court in 59 Ga,^ 142. And see 68 Oa,, 65.
In reference to the evidence of an acoomplice, the charge
given will be found supported by Roscoe's Cr. Ev., 466, et
seq., and 62 Ga., 106, 398. The effect of threats as evi-
dence was a topic of argument here^ and as to which see
49 Ga,, 12 : 58 lb., 224. In so far as the charge of the
court deals with the principle of faUvs in uno fdlsus tfn
07nnibu8y it is in line with the general tenor of the cases.
59 Ga., 63 ; 58 lb., 366, and cited cases. The matter of
impeaching and supporting witnesses by proof of general
character, is treated by the Code, §§8871, 8878, 8874. We
perceive no want of fulness or accuracy in that part of the
charge on this subject which the motion for a new trial setfi
forth.
4. What the court charged on the relative powers of
SEPTEMBER TERM, 1879. 349
Jackflon v$. Tlio State.
the court and jury over the punishment, was in terms of
the act of December, 1878. Grant that because that act
was subsequent to the commission of this homicide its pro-
visions would not be applicable, the only result would be
that to apply it to the 'cade would be an error in favor of
the accused and not against him. If the act makes any
change in the prior law, it undoubtedly softens it, and thus
if the true rule was not administered it was put aside for
one more mild and beneficent, and one which, prior to the
trial, had received express legislative sanction,
5. On the evidence in thetecord it is quite impossible for
us to say that the jury had no right to convict. The accom-
plice was corroborated indirectly on the main point in con-
troversy by several circumstances of some degree of weight
Among them were recent threats made by the accused, his
presence on the premises at the time the killing occurred,
coupled with his anxiety to go as a messenger to report the
killing to a neighbor, his following after the messenger
without being sent, and his conduct, when search was made
for tracks in the yard, in trying to keep in advance of the
party, as if his purpose might be to obliterate or confuse
the tracks, if any, before they were seen by others. While
there is room for some slight apprehension that the jury
i^ftji perchance, have reached an erroneous conclusion, we
feel sure that we render a more faithful obedience to law
by leaving the verdict to stand, than we would by setting
it aside. " Moral and reasonable certainty is all that can be
expected in legal investigation*" Code, §3749. The ac-
cused was fairly and legally tried, and his conviction was
not unwarranted by the law and the evidence.
Judgment affirmed.
SUPREME COURT OF GEORGIA.
DoBosB, administrator, tw. Ball.
L A paper Bigaed by the heirs at law of an estate nulUoriiin^ the ad-
mimstrator to settle certaio laad sales of tbe iotcsiHte. was properly
admilted in evidence to show authority id the administrator to
recehe from one of the purchasers tbe purchase price of thai
portion of irbich be was in possession and which he had improved,
and thus to rest a perfect equity in hioa against tliai heir, being mii
jara, to whom this part tell in tbe tlivlBion of the estate.
2. Minors of the estate wrre not intiirested because the Innd bad been
divided, and this shars tell to another who was mi jnmt, and tbe
court was right to instruct tbe jury that if this party iiasented to the
settlement by IbeadmiDistrator, she was estopped frotn setting up
title against the settlement so made by her consent.
3. Where the plaintiff purchased and went into actual possession of
four acres of land, and fenced in the same and eroded a dwelling
thereott, and paid the purchase money therefor to the adniinistraior
of the vendor by consent of the heir at law to whom it fell on di'
vision, he will acquire a perfect equity thereto ngainst such heir al
law and those acquiring title under her during bia possession, and
may recover thercoo io ejectment.
Evidence. Oontracta. Minor. Title. Ejectment. Equity.
Before Judge Potflk. Wilkes Saperior Court. May Term,
1879.
Reported in tlie opinion.
D. M. DdBo3b; W. M. & M. P. Bbbbe; D. A. Vasos.
for plaintiff in error.
S. H. Habokuan ; Sme & Shitbsioe, for defendant.
jAOKaoN, Jaatioe.
This was an action of ejectment bronght by Bail, n col-
ored man, against "The Sieters of the Ordur of St. Josepli,
of Washington, Ga.," for the recovery of three acres of land
iit the town of Washington. The sisters called npon their
^rrantor, Martha Andrews, to make good bcr title, wbo, in
her tarn, vouched the plaintiff in error, DnBose, ur the estate
SEPTEMBER TERM, 3879. 351
DaBose, administrator, vs. Ball.
of Wjlie which he represented, and they were made parties
defendants.
BaU held under the estate of Wylie also, so that plaintiff
and original defendants held under the same grantor, and
the sole question is, did the plaintiff have title from the
estate of Wylie or from Wylie ?
The plaintiff showed no written title, but claims that he
had a perfect equity which entitles him to recover in eject-
ment.
That equity consists of the possession of the land — four
acres — which he bought from Wylie, and improved by fenc-
ing it in and building thereon the dwelling wherein he
lived, and payment of the purchase money, to-wit: $100.00.
The payment of this money was made to the former admin-
istrator of Wylie — after his death, of course, and the ques-
tion is, does this payment, under the facts of this case, make
such a perfect equity as will authorize a recovery in eject-
ment?
Perhaps there might be doubt whether the payment
could be made to the administrator so as to vest the legal
title without going into equity, and thus pass the title out
of the estate, without the assent of the heirs, inasmuch as the
title vested in the heirs at the death of Wylie ; and the ad-
ministrator could only administer the realty in the teeth of
their title in order to pay debts. However that may be, the
facts of this case take it without the difficulty suggested.
Martha Andrews signed a paper which authorized the admin-
istrator to settle the claim of certain freedmen (of whom
doubtless the plaintiff is one) who had bought land of the
estate of Wylie, of which she was the only heir interested
in this land. The lands left by Wylie were duly .divided,
and this part fell to her ; and she sold to the Sisters land
thus falling to her in the division, three acres of which the
plaintiff had bargained for with Wylie, was in possession
of, and afterwards, with her consent, arranged with the ad-
ministrator by paying him for it. Her consent that the
administrator have power to settle with the freedmen also
853 SUPREME COURT OF GEORGIA.
Claralud ttalwt. CbamUlM, laudlui.
relieves the case of the diffionltj SDf^gested that Ball paid
no interest. Whether interest was due or not doee not
appear, but if doe, tbe admiDistrator had tbe anthtH-it; to
settle from Martha Andrews, and his settlement binds her.
1. We thinlf, therefore, that the eoart did not err in ovei^
mling the motion for a new trial. Tbe aj^reement in writ-
iag was properly admitted in evidence, beoanse it may well
bear the ooitstrnction that it aathorized the administrator
to settle with the plaintiff. It not only waiVL'd notice of
any judicial proceedinf; which might be instituted in respect
to defective title to the land, bnt it expressly "anthoriised
the administrator to proceed and settle the tiame according
to his judgment and tbe best interest of the ettate.'' There-
fore the court was right to admit the paper as against Mrs.
Andrews.
2. The court was also right in charing to the effect that
tiiongh the paper miglit not bind the minors of the Wylic
estate, who signed by gnardian, yet that it did bind Mrs.
Andrews, who was «W Jvris, and estop her from setting up
title against the plaintiff.
3. The facts show a perfect equity against Mrs. Andrews,
as party made defendant and the grantur of the Sisters of
St. Joseph, who bought during plaintiff's possession, and
the verdict and judgment are rigbt.
Judgment affirmed.
CLETELAsn «t al. vs. Chambliss, guardiat
I. Wlipre there lias l>een opportunity to raise a question as lo the suffl-
cieo(!y i>f the Dotice of n motion for a new trial, aod it has not 1>««d
raJKCtt ill ibe court below, dot luled upoD by the prcaiding judge,
the ifUtBtion is not here for review.
3. A rrtiiiior of an insolvcot eetate who is noder injuuction not to sue
the exf^outor, has a good excuse for not oblaining juiii;meDl on bis
debt biffore proceeding by bill in equity to set aside a voluatury
\
k
SEPTEMBER TERM, 1879. 353
GleveUiad et al. vg. Cbambli^s, gaardlan.
conveyance made by the testator in his life-time; and if, during tlie
pendency of the bill, a judgment or decree establishing the amount
of the debt is obtained against the executor, the same may be
brought into the bill by way of amendment, and may thus be used
as effectively as if the adjudication had preceded the filing of the
bill and had been alleged therein originally.
8. If one of several defendants to a bill brought by an executor to
marshal assets, answers and turns his answer into a cross-bill against
certain of his co-defendants, who are voluntary donees of pr'^perty
under the testator, (such cross-bill praying that the voluntary con-
veyances be set aside because void as to creditors, ) one of the co-
def«ndants to the executor's bill not made a party to the cross bill
may, before decree on the cross-bill, file a separate and independent
bill to accomplish the same object in his behalf which the cross-bill
seeks to accomplish in behalf of tbe complainant therein, and the
complainant in such independent bill will not be bound by the result
of the litigation on the cross-bill, he being no party to the same
though a party to the original bill with which the cross-bill is con-
nected.
4. Where the bill attacks voluntary conveyances solely on the ground
that the donor was insolvent, making no charge as to any actual
fraudulent intent, such an intent apart from the alleged insolvency
is not in question, and no instructions to the jury which do not
look to insolvency as a necessary fact to be established are ap-
propriate.
5. The amount of the donor's liabilities as compared with his resources
at the time he executed the conveyances sought now to be set aside,
« being a vital point in the case, the allusion of the court to "bogus"
debts or claims in charging the jury, with the use by the court of
that epithet in connection with matter charged at the request of
complainant's counsel, would seem objectionable; and a new trial
having been granted below, the judgment granting it will not be
reversed.
New trial. Practice in the Supreme Court. Equity.
AdminiBtratore and executors. Judgments. Fraudulent
conveyance. Charge of Court. Before Judge Grice.
Crawford County. At Chambers. July 11, 1878.
In February, 1875, Thouias E. Chambliss, as guardian of
the minors of Israel J. Chambliss, deceased, filed his bill
against Wilde C. Cleveland as executor of Washington C.
Cleveland, deceastnl, and as trustee for Orleana A. and Oliver
C. Cleveland, making, in brief, this case :
SUPREME COURT OF G-EORGIA.
In 1858 coinplainant loaned to Washia^toD 0. Cleveland,
principal, and E, T. Joidan, security, about $5,300.00, and
to eaid Jordan, principal, and Cleveland, security, $2,000.00,
taking their notes therefor. These notes were renewed in
1S62. Suit was brought on that for $2,000,00 in Crawfoid
superior court against Jordan alone, Cleveland having
died, coinplainant waa enjoined by the e\eeulor of his
estate on a bill filed in September, 1S69, to niurghal assets,
from commencing suit against such estate. Judgment wae
obtained againet Jordan for $2,609.UiJ priiieipal and intert-st.
Shortly thereafter he was declared a bankrupt, and in lS7i
was discharged, over the continued opposition of complain-
ant. The master appointed on the bill to marshal aEsets
reported over $13,000.00 in favor of complaiuant.and gave
him preference over other creditors, except a few of eqnal
dignity. T!ic assets in the executor's hands, with the ex-
ception of property which he has not seen proper to appropri-
ate to the payment of the debts of the estate, will not
exceed $3,500.00. This other property, of the value of
1^11,000.00, ought to be made subject to the debts dnc com-
pliiinant and other creditors of equal dignity. It consists
(if nbout eight or nine hundred acres of land, eight mules,
l;iiiiiing ntensils, etc., all of which, on or about November
2n. LS68, was conveyed by testator in consideration of nat-
uiiil luve and affection, to Wilde C. Cleveland in trust for
li'!-li\tor's minor daughter and son, the said OHcana A. and
Oliver C. At the time of this conveyance testator, Wash-
ington C. Cleveland, was indebted to complainant and
others an amount equal to, if not greater than, the property
he then owned. Pi^ays that the aforesaid trust deed be
dui'lared void, the property subjected to complainant's
ehiinis, etc.
I >n June 5, 1877, complainant filed an amendment to his
Kill, setting forth that the eonvej'ance in trust by testator
fill' the use of his children, was as follows; One Johnaoti
boiijrht from one Letton five hundred and fifty acres of
hind of the value of $5,500.00. Johnson reoL-ived a deed
SEPTEMBER TERM, 1879. 855
Cleveland et al. vs. Chambllsg, guardian.
and gave his notes for the pnrchase money with testator as
security thereon. Johnson being unable to meet his notes,
it was agreed between him and testator that the latter should
pay them off, whilst Johnson should convey the land to
Wilde C. Cleveland in trust for Oliver C. This was done
on November 20, 1868. Testator also gave to his said son,
Oliver C, by^his will, farming utensils, stock, etc., of the
value of $1,300.00, all of which went into the hands of his
said trustee. In February, 1869, testator conveyed to
Wilde C. in trast for his daughter, Orleana A., in consider-
ation of natural love and affection, three hundred and fifty
acres of land of the value of $3,500.00, and by will gave to
her stock, farming utensils, etc., of the value of $1,000.00,
and money and notes to the amount of $1,635.00, all of
which passed into the hands of her trustee. Orleana sub-
Beqnently married Lamar, who succeeded Wilde 0. in the
trust, and who complainant prays may be made a party
defendant.
Complainant further alleged that the report of the master
appointed on the bill filed by the executor to marshal the
assets had, since the filing of his original bill, been cour
firmed by the verdict of a jury and decree, to wit: at the
September term, 1876, of Crawford superior court.
He also alleged that the value of the property which the
executor improperly failed and refused to appropriate to
the payment of debts of the estate, to-wit : that voluntarily
conveyed to his children by testator, was $13,900.00.
Wilde C, the executor and trustee, answered that the
indebtedness of testator at the time of the voluntary convey-
ances, did not exceed $9,000.00 on his own account, and
$5,000.00 as security for others, whilst he had property to
the amount of over $30,000.00, enumerating the items of
which it consisted.
Lamar, trustee, answered, putting the value of the land
conveyed to his wife at $1,200.00, the indebtedness of testa-
tor at the time of the conveyance at $14,000.00, and his
property at $5(;,000.00. Denies that complainant holds
any claim of $12,000.00 against testator, and alleges that if
SUPREME COURT OF GEORGIA.
testator ever owed him anything it was a debt contracted
prior to Jnne 1, 1865, and not having been saed before
Janaary 1, 1870, it was barred. In reference to the claim
against Jordan, a« principal, and testator, as eeonritj, he
aaja it waa contracted prior to Jnne 1, 1865, and was not
Bued before Jannary, 1, 1870, thongh Jordan was eaed ;
that complainant released testator in hia lifetime; that be
has allowed Jordan to make way with property subject to
the judgment, etc.
The evidence introdaced upon the trial of the issues thus
formed need not be reported except ao far as to state that
the record of the proceedings had on the bill to marshal
aaeete filed by Wilde C. Cleveland, executor, shows that
Mary Zeigler, as guardian ad litem for Octavia Zeigler, a
defendant to snch bill, answered the same and tiled a cross-
bill against the exeeator and trustee nnder the voluntary
conveyances from testator, attacking the same upon sub-
stantially the aame gronnds as are presented in the bill of
complainant, and alleging further that the money of tbe
said Octavia paid for the land conveyed by Johnson to
Wilde C, as trustee, ander direction of testator, seeking to
follow the fund, etc Lamar, trustee, who was a party de-
fendant to the bill to marshal assets, was also made a party
to this cross-bill. Ohambliss, gnardian, the complainant,
was not,
Tbe precise date of the filing of this oross-bill does nut
appear, but servioe was acknowledged by opposing counsel
on March 24, 1875.
The master reported adversely to this claim, aud hie find-
ing was confirmed by verdict and decree at the September
term, 187«.
Tbe jury found for defendants. On Jannary li), 1S7S,
connael for complainant served counsel for defendants with
the following notice :
"To the d^tndantt and their »oliei(or»:
'•Wliereaa tbe judge of the superior court of tbe Macon circuit.
HODorable Bamnnl Hill, presiding at the hearing of sniil cnuse nlica
said rerdict wu rendered, suddenly died dnriog said Bt-'ptember lorra,
SEPTEMBER TERM, 1879. 857
rieveUnd et al. vt. Chunbliss, gimnUaa.
1877» on the day next to the rendition of said verdict, whilst complain-
ant was preparing through his solicitors a motion for a new trial, and
before the same was or could have been filed, -and whereas the next
March term of said superior court is and will be the first time when
such a motion could be filed, the defendants are hereby notified that at
said March term of the superior court of Crawford county, the com-
plainant will make and file a motion for a new trial in said cause as
an extraordinary case, and as authorized by law in such cases made
and provided."
The gronndB of the motion aubseqnently made at the
time designated in the notice, iivere, in eab6tanee,ad follows:
1. Because the verdict was contrary to law, evidence, and
tj^e principles of justice.
2. Because the court erred in refusing to charge the jury
as follows :
(a.) ''The law presumes that every man intends the
necessary consequence of his act, and if the act necessarily
delays, hinders, or defrauds his creditors, then the law pre-
sumes that it was done with a fraudulent intent.
(J.) " The law stamps a man's generosity with the name
of fraud, and fraud arises and may ezist without the impu-
tation of moral turpitude, when the act prevents him from
acting fairly towards his creditors.
(<?.) " Fraud may be presumed when a gift is made by a
debtor who is indebted so as to be embarrassed and ap-
proaching insolvency, and whereby a fall in prices or fluctu-
ation in the value of what is retained would probably leave
him unable to pay his creditors.
(d.) '' Though a debtor may not be absolutely insolvent
at the time of a gift, or may not be rendered absolutely in-
solvent by such gift, yet, if at the time of the gift he is so
embarrassed by debts as to approach insolvency, so that a
fall in prices or fluctuation in the value of what is retained
by him would probably leave him unable to pay his debts,
then fraud may be presumed and the gift set aside."
&. Because the court erred, after charging the following
request : '' On the qu^tion whether the debtor was insol-
vent or not at the time of the gift, or whether, under th
SUPREME CODKT OF GEORGIA.
!•. Ctiiuubliw, gustdlm.
principles of law jriven yon in charge, tlie presumption is
that the gift was intended to delay or binder creditors, the
jury are to ccmeider all debts proven whether they liave
since beeoine enjoined or not, or barred or not. provided
they existed at the time of the gift," in adding this qualifi-
cation: " In considering whether they were debts or not at
the time, you may take into consideration t!ie conduct of
the parties. If I claim to have a debt against the estate of
Clevelanci in 180S or 1869 and he died, and the executor
called npon me to prove my debt and I did not do it, the
jury would have the right to consider my conduct aa to
wliether I had a debt or not, or whether it was not bogiie,
or whether there was some reason why it was not a debt —
but if it was a debt at the time of making these deeds, then
yon can consider whether it has been collected or not."
Complainant and his counsel made affidavit that the case
was heard and the verdict rendered about sis o'clock p. m.
on Wednesday the 36ch of Septemher, 1 87 7, and that on
the next ensuing d;iy at about the hour of six p. m. the
Hon. Barnard Iliil, the judge presiding at said term, sud-
denly expired during the session of court, thus ending the
term before a motion for new trial could be prepared, etc.;
that this fact constitutes such extraordinary ground as
would support a motion made at the next succeeding term.
The recitids in the grounds of the motion were verified
by the affidavits of complainant, his counsel and the steno-
graphic reporter.
Judge Grice, the successor of Judge Hill, certified that
npon eviilence satisfactory submitted to him and of file
with the motion, the recitals in the grounds were true,
A consent order was taken for the iiearing of the motion
in vacation. After argnment, a new trial was ordered.
No exception seems to have been taken as to the notice
of the motion or the verification of the recitals, etc.
To the judgment ordering a new trial, Oliver C. Cleve-
land, who had become of age and been made a party, and
Lamar, trustee, defendants excepted.
SEPTEMBER TERM, 1879. 359
Cleveland et al. vs. rhambliss. guardian.
Hall & Son ; R. D. Smith ; Bacon & Rutherford ;
Blount, Simmons & Hardeman, for plaintiffs in error.
J. S. Pinckard ; MoCay & Trippe, for defendant.
Blecki.ey, Justice.
1. A point was made in the argument which was not pre-
sented below, and upon which the judge there presiding did
Dot rule. We were urged to reverse the judgment granting
a new trial, because the notice given of the intended mo-
tion did not specify any groitnd or grounds upon which
the rijotion would be based. To show that the notice must
embrace the grounds, and not merely an admonition of the
intention to move, we were cited to 21 Ga., 216; 30 /J.,
677; and Code, §3721, compared with Cobb's Dig., 503.
Let it be granted that the notice was defective for want of
fulness, there was opportunity below to urge the defect,
but instead of using the opportunity, the plaintiffs in error
suffered the motion to be made and disposed of on its
merits, without any effort to defeat it on account of the
character of the notice. The point appears here in its
virgin state, wearing all its maiden blushes, and is there-
fore out of place.
2. The proposition that equity will not aid a creditor to
pursue assets with which the debtor has parted, until after
the debt has been established by judgment, was pressed
upon us, and the following authorities were cited : 4 Ga.^
319; 3 /&., 449; 42 lb., 124; 47 /J., 530; 56 lb., 144.
But the facts of the present case are special. Here the
creditor filed his bill whilst under an injunction not to sue
the executor of his debtor ; and after the executor's bill on
which the injunction was granted resulted in a decree fixing
the amount of the debt, that decree was pleaded by way of
amendment to the bill of the creditor, and thus when the
latter bill came to a final hearing, the creditor was in a situ-
ation to prove his claim, as against the executor, by conclu-
360 SUPREME COURT OF GEORGIA.
Cterelaod tlalvi. Cbambllai, gaardlm.
eive evidence. Add to thia that the estate of the debtor
was certainly insolvent, and we can see no reason for holding
that the creditor onght to fail, on the theory that his bill
was preinatnrely brongbt. We are not ruling npon a de-
murrer to the bill, bnt upon the stifficiency of the evidence
adduced at the hearing ; and even if the bill, as amended,
had been demurred to, we see not why the injunction and
the insolvency would not have furnished a Bnffloient excuse
for not having a judgment to start with. Under the (Jode,
§4181, the rendition of the decree in the executor's Bait,
pending the creditor's bill, was proper matter for amend*
ment to the latter bill ; and it seems to ne that after being
thus brought in, it could be used as effectively as if an
adjudication of the debt had preceded the filing of the bill)
and had been alleged as a part of the original case.
3. There were numerous defendants to the bill brought
by the executor to marshal asaets, among them the com-
plainant ill the present bill, the volunteers or donees whose
title is now attacked, and one Mrs. Zeigler. Mrs. Zeigler
engrafted upon her answer a crosa-bill, which had for its
object the overthrow of the title of these donees, and the
bringing in of the property to pay the debts of the donor's
estate — at least the debt which was due to her. The cross-
bill failed, the result being a finding and decree against it.
The plaintiffs in error urge that the result thus reached OQ
Mrs. Zeigler's cross-bill, is binding upon the complainant in
the present bill, and hence that the whole controversy is
closed, for which reason the verdict was correct and shoald
not have been set aside by the grant of a new trial. Bnt
the complainant in the present bill was not a party to the
cross-bill, and the present bill was filed, if not before the
cross-bill, cerlainly before the latter was beard and disposed
of. Why did not the complainant in the independent bill
have the same right to attack the conveyances to the donees,
by that bill, as Mrs. Zeigler had to make a similar attack by
the cross-hill! And why should the failure of her attack
bind him, if the failure of bis attack, had his bill been tried
SEPTEMBER TERM, 1879 361
B<riden ^ al. V8, The State.
iirst, would not have bonnd her ? His relation to the cross-
bill was precisely the same as hers to the independent bill,
with one exception — he was a party to the original bill out
of which the cross-bill sprang. Is a defendant to an origi-
nal bill affected by the result of litigation between two or
more of his co-defendants, on a cross-bill to which he is not
a party ? Upon principle, he is not, and if there is any au-
tliority to the contrary it is unknown to us. The able and
industrious counsel who argued this case for the plaintiffs
in error, failed to produce any.
4. The various requests to instruct the jury on the sub-
ject of actual fraud, were not in line with the charges of
the bill. The bill proceeds on the sole ground that the
donor was insolvent, or became so by the reduction of his
fortune involved in making the gifts. No actual fraudu-
lent intent is alleged — indeed, the bill seems unusually care-
ful not to impute any such intent. As the bill stands,
insolvency is an indispensable fact to be established, before
the complainant will be entitled to a decree, and the court
was right in treating as irrelevant any request for instruc-
tions which would or might leave that question undecided.
Adherence to the pleadings is a prime virtue in trying a
cause.
5. The fifth head-note presents all we desire to say on
the epithet " bogus," and on the general result of our delib-
erations.
Judgment affirmed.
Eou3EK et al, vs. The State of Geoboia.
Where three are indicted for riot in unlawfully assaulting, bcatingi
mounding, and otherwise maltreating another in a violent and tu-
maltttous manner, and the evidence is that two of the three struck
and wounded that other by throwing rocks at and hitting him on
the head, all acting in a violent and tumultuous manner:
n^, that the two were properly convicted of riot under the indict-
ment; and tboiigh the tertimony as to the persons who began the
rocking is conflicting, yet there being enough to uphold the verdict,
and the presiding Judge approving it, this court will not interfere.
362 SUPREME COURT OF GEORGIA.
Bolden ei al. tv. The State.
^ -■ ■ ■ '™' ^' ■ -■■■■■- - ■ ■ ■ I.. ■ ^ ,
Criminal law. Riot. Verdict. Before Jud^e Clabk.
City Court of Atlanta. June Term, 1879.
Reported in the opinion.
Oabtrbll & Wright, for plaintiflEs in error.
Howard Van Epps, solicitor city court, for the state.
Jaokhon, Justice.
The defendants were indicted together with one Green
Bolden for a riot. All were found guilty, but a new trial
was granted trreen Bolden, and it being denied the defend-
ants, they excepted. The sole question is, were the two
men under the facts guilty of riot ?
The Code declares, "if two or more persons, ejther with
or without a common cause of quarrel, do an unlawful act
of violence, .pr any other act in a violent and tamultuotis
manner, such persons so offending shall be guilty of a riot.''
The allegation is that in a violent and tuiiiultuons manner
the defendants did unlawfully assault, beat, wound and
otherwise maltreat Lera Wright. The evidence is that the
three assembled at the house of Lem Wright and were vio-
lent and tumultuous, and that the two, each of them, threw
rocks at Lem, and that he was badiv wounded on the head
by the rocks thrown by them. The difficulty arose out of
the fact that Joe Wright and Green Bolden were fighting
about the whipping of some children ; Lera interposed to
part them, when the rocks were thrown at him by plain-
tiffs in error and he was so struck and wounded. The
facts make the two guilty of a riot under the law, and the
allegation in the indictment was sustained by the state's
testimony.
It was for the jury to decide on the conflict of evidence ;
but it is unquestionably true that rocks were thrown at
Lem Wright by the plaintiffs in error, and that they assem-
SEPTEMBER TERM, 1879. 363
Walker vs. Johnson et al.
bled at his house, and thus the trouble arose. The other
defendant got off by the fact that he did not throw at Lem.
Wright^ the unlawful act charged in the indictment. The
new trial was properly refused as to the platntiffs in error.
3« Ga., 185.
Judgment affirmed.
Walker vs, Johnson et al.
1. The defendant in/. /d., who claimed tlie fund as exempted hy
the ordinary, not having been served with the bill of exceptions,
this court will not review the judgment of^the superior court on
the validity of that exemption.
2. The exemption of the fund being treated as valid, an unrecorded
mortgage for purchase money will take in prefeT-ence to one duly
recorded to secure a debt not within any of the exceptions of the
constitution rendering the exemption liable — both mortga,u:es hav-
ing been foreclosed, and the executions in the sheriff's hands.
Practice in the Supreme Court. Mortgage. Homestead.
Before Judge Lawson. Baldwin Superior Court. Feb-
rnary Term, 1879.
Walker brought a rule against the sheriff of Baldwin
county to cause him to apply to a mortgage ^.yVi. of mov-
ant in his hands, the proceeds of the sale of two mules, the
property of Huff, the defendant in JL fa. Huff claimed
the fund as having been set apart to him as an exemption.
Johnson, the holder of another mortgage ^./i*., also claimed
the fund, and was made a party. The case was submitted
to the court without a jury upon an agreed statement of
facts, as follows:
"That John B. Wall, sheriff, on January 1st, 1874, levied
the mortgage ^./ii. of Samuel Walker on two mules therein
mentioned, and afterwards, to-wit: on the lOtli day of Jan-
nary, 1874, levied the mortgage^*. /a. of Thomas Johnson^
on said males ; and on the same day they were sold, and the
V6t--28
364 SUPREME COURT OF GEORGIA.
Walker vs. John eon «l al.
money held np for distribution, under a notice from Thomae
Johnson. That the claim of Thomas Johnson was for pur-
chase money of said mules, and was 'in tlie form of an unre-
corded mortgage, given December 29th, 1872, due November
1st, 1873,and foreclosed January 9th, 1874: and that the claim
of Samuel Walker was a mortgage regularly recorded, given
June loth, 1873, due November 1st, 18?*, and recorded
June 16th, 1873. That at said sale Thomas Johnson bought
in said mules, and gave the sheriflE, John B. Wall, his bond
for the money, but never paid the same into his hands. That
after said sale, to-wit : on the 30th day of January, 1874,
John H. Huff applied to the ordinary of Baldwin county
for homestead and exemption, including in his application
'money arising from the sale of two mules, and now in the
hands of the sheriff — two hundred and fifty dollars,' with-
out any prayer for the investment of the same. That the
ordinary, on the 23d day of March, approved said home-
stead and exemption in the following words : 'Approved,
this the 23d day of March, 1874, subject to such debts as
are provided for by law. Signed, D. B. Sanford, ordinary,'
without any order for the investment of said money or
any disposition of, or reinvestment of, the same. That
upon the filing of thp application the ordinary gave the
sheriff notice in writing, and upon its approval, notified
him of that fact in writing."
The court rendered two judgments, one headed "Samuel
Walker, plaintiff in^. fa. vs. J. H. Huff, defendant in jS.
ya., and John D. Wall, sheriff." In it, he ordered costs and
counsel fees to be paid on the fi. fa., and the balance to be
paid over to the ordinary for the benefit of Huff's family.
The other order was headed, ''Samuel Walker, plaintiff in
Jl. fa., and Thomas Johnson, plaintiff in Ji. fa. vs. J. H.
Huff, defendant inf. fa., and J. B. Wall, sheriff, and J. H.
Huff, claimant." In it he ordered the payment of costs
and counsel fees on the Walker ^.yb., and the payment of
the balance to Johnson.
Walker excepted. Service of the bill of exceptions was
SEPTEMBER TERM, 1879. 365
Walker vi. Johnson dl al.
acknowledged by conusel for Johnson and the sheriff; no
service upon Huff appears to have been made.
F. C. FuRMAN, bj brief, for plaintiff in error.
W. W. Williamson, by biief, for defendants.
Jackson, Justice.
A certain fund arising from the sale of certain mules was
in the sheriff^s hands. It was claimed by the defendant in
Ji.fa. as exempt by the judgment of the ordinary, for the
use of his family, by the plaintiff in error, on a mortgage
to secure goods sold defendant duly recorded, and before
any other mortgage was recorded — and by defendant in
error, on an unrecorded older mortgage for the purchase
money of the mules. The court ruled that the exemption
was valid, and that the J£. fa. issued on the purchase money
mortgage would take the fund after payment of expenses
of bringing the same into court. Whereupon plaintiff
in error excepted.
1. There is no service upon the defendant in ^.yb. who
claimed the exemption. If that judgment of the ordinary
be assailed, he has a right to be heard, and should be a party
to the case, as he was one in the court below; but he is not
served with the bill of exceptions, and therefore he is not
a party here. *
Indeed, the two issues wore tried separately, and separate
judgments were pronounced — the one in the case of Walker
vs. Huff, defendant in ^. /a., and Wall, sheriff, and the
other in the case of Walker and Johnson vs. Huff, defend-
ant, Wall, sheriff, and Huff, claimant.
Therefore this court will not review the judgment of the
superior court on the validity of the exemption as made by
the ordinary.
2. Treating it then as valid, of course the mortgage for
the purchase money will take the fund in preference to a
SUPREME COURT OF GEORGIA.
mortgage not for pa rcbase money or any otlier thing that,
by the constitution, could sell the homesttiKi or exemp-
tion. Plaintiff in error could not have sold the mnlcs
under his ^.yu., had they iieen set apart; no more can lie
claim the money they brongiit when it ie set apsirt. Bni
defendant in error could have sold the mules, tbouf^h set
apart ; therefore he can claim what they eold for, though
Eet apart.
The court below, then, ruled correctly in awjirding the
fund to the defendant in error, after paying expeiiees of
bringing it into court.
See 5* Oa., 569; Code, §§5135, 2002. Supplement to
Code, §690.
Judgment affirmed.
Smith vs. Bryan.
Where there is no approTal o( the brief of evidencn by Ihc presiding
jud^ nnd no reference therein In (he bill of excoplioiis. (he writ bf
error must be dismissed, no error being nssigaed which could be de-
termined without such evidence.
(a.) Hni! iliere licen an approval of tbe brief of evidence, tlie verdict
was not contrary to the weight (hereof.
Practice in the Supreme Court. September Term,
1879.
A^.Ja. in favor of Bryan against Daniel was Jeried on
certain land, which was claimed by Smith. The clainiaut
insisted that he had been a security on au olMcial bond for
Daniel, and lost money therefrom ; chat Duniel offered to
reimburse him by turning over to htm a mule : that he did
not want the mule, and Daniel then traded it to a third
party for the land'now in dispute, and had the title made
to claimant for tbe purpose above stated. The plaintiff in-
sisted that the deed was antedated, that it was made after
In^^nnent was obtained, and was therefore a fraud on
SEPTEMBER TERM, 1879. 367
Smith V8 Bryan.
him. The jury found the property subject. Claimant
moved for a new trial on the ground that the verdict was
contrary to law, evidence and the weight of the evidence.
The motion was overruled, and he excepted. The brief of
evidence in the record was not approved, nor was there
any reference thereto in the bill of exceptions. The writ
of error was therefore dismissed.
R. W. Carswell, by brief, for plaintiff in error.
No appearance for defendant.
Jackson, Justice.
This was a motion for a new trial. In such a case it is
not necessary that the brief of evidence be embodied in
the bill of exceptions, but it may come up in the record, if
it be referred to in the bill of exceptions, so that the atten-
tion of the presiding judge is directed to it. Code, §4253.
No reference is made to the brief of evidence in this bill of
exceptions, nor does the record contain any approval
thereof by the judge. The only grounds for the new trial
are that the verdict is against law and evidence ; therefore
the evidence is absolutely necessary to review the case, and
the writ of error must be dismissed. The plaintiff in error
loses nothing, however, by the dismissal ; for if what pur-
ports to be the evidence in the record be that which was
h)efore the superior court, and if the court charged the law
correctly, (and there is no copy of the charge or exception
thereto in the record, and the presumption is that the coui;t
did so charge correctly) the case made is one of fraud or no
fraud, and in case of fraud a trust resulted in Smith, the
grantee and claimant, for the benefit of Daniel, the defend-
and in^.yb., as Daniel's mule paid for the land, and it was
properly subjected to the payment of his debt, the jury
having found that issue of fraud in favor of the plaintiff in
execution, — as must have been done if it was properly sub-
mitted by the charge. There is sufficient evidence, if that
368 SUPREME COURT OF GEORGIA.
WtcbeU H. Tomlln.
which purports to be the evidence be correct, to sustain
8Hcb finding ; and thus in any event tlie judgment would
have heen affirmed. In order to preserve the unifonnitj-
of our decisions and tlie plain statute — Code, §^253 — the
bill of exceptions being defective, the writ of error is die-
missed.
MrrcHKi-L vs. Tommk.
M
1. Where it appears from tbe recurtt Ibal tlie case is stilt pondioKia (he
court below, tbe writ of error will be dismiaaed. <R).
S. A aiiggestiOD of diminution of the record must be on uatli. (R).
Practice in the Supreme Court. September Term, 1S79.
)feported in the opinion.
W. 8. Wallace; C. J. Tuoentox, for plaintiff in error.
Blandford & Qakbakd, for defendant.
Jacesoh, Justice.
A motion was made to dismiss this case on (lie ground
that it was still pending in the court below, on a motion
for a new trial, which had not been dispoE^ed of, the case
before ne being exceptions to the rulings of the conrt on the
trial before the jury. Of conrse until the case is finally
disposed of in the court below, it cannot be bronght to thia
court, and the only question is, does the record show that
it is still pending.
The following order and judgment appear in the trans-
cript :
■' R 8. TouLiH 1
vs. i Verdict and Judgment fur plaintiff.
Jonn D. HrrcHRLL, )
" The detendaot baTiDR made a motion for a uew iiIhI hi said cofv.
on the grounds Uterein itated, and said grounds bavioe been npprov«d
SEPTEMBER TERM, 1879. 309
Mitchell V8. Tomlln.
by the court, and it appearing that it is impossible to make out and
complete a brief of the testimony in said case before adjournment of
court, it is considered and adjudged by the court that said motion
stand continued until the 19th day of October, 1878, and that it be
heard at chambers, and that defendant have until said day to make
out and file a brief of testimony without prejudice.*'
*• R. S. ToMLTN ) Verdict and judgment for plaintiflf,
m. > at October term, 1878, of Taylor
John D. Mitciibll. ) superior cou: t.
" The defendant being dissatisfied with the verdict and judgment in
said case, comes, during said term of the court, and before the adjourn-
ment thereof, and moves the court for a new trial, upon the following
grounds, to-wit:
1. Because the verdict of the jury is contrary to the evidence.
2. Because the verdict is contrary to the evidence and the principles
of justice and equity.
3. Because the verdict is without evidence to support it.
4. Because the verdict of the jury is so far contrary to the evidence
as to shock the moral sense.
" Whereupon he prays that these, his grounds for a new trial, be in-
quired of by the court, and that a new trial be granted him."
Signed by counsel and approved as correct grounds by
tiie court, October 11th, 1878, signed Martin J. Crawford,
J. S. C. C. C, and nnarked filed in office October llth,
1878.
No further order appears concerning the motion. It
seems therefore to be pending still in the superior court ; it
was pending then when this writ of error was sued out, and
the record shows no disposition of it. Still pending, and not
finally disposed of in that court, the case cannot be brought
to this court. Code, §4250.
Tlio writ of error must therefore be dismissed.
1. We are the less reluctant to dismiss it because an exami-
nation of the points excepted to shows that the judgment
would not, in any event, have been reversed, the construc-
tion of the contract being right, in our judgment, and no
error in the question of practice raised, or in the costs.
2. A suggestion of a diminution of the record was at-
tempted, but counsel were unable to make oath that any
part thereof was omitted, and this court has no power to
nuake a new record for the court below.
Writ of error dismissed.
SUPREME COURT OF GEORGIA.
8hIEL6 vs. R0BKST8.
[Tblscaae tiu ugned ittUe lut Una lUd dcclfloii rD>Hrv«].l
I. On lite mere question of lille by virtue of dur&lioD uf possession,
tbere being no issue of meatie protlts and equitublv aet-off thereto
by improvementa erected on land Hued for, the rejection of lesti-
mony to the effect llmt the improvements were of liltlo or no value,
and roltec or dilapidated, ia not such error aa will require the grant
of a new trial.
3. Where defendant showed privity of estate between him and a long
line of grantors to lot No. 17 in a ward of a tify, and buildings
thereon obtruding some feet over on lot 18 adjoining IT, continuity
of possession for more than twenty yeara may bt proven by parol
between him and his grantora— his predecessors in the actual p<»-
aesaion of the building thus extending over part of 16.
3, Actual poEBeaaiou of such atrip of 18 for twenty years by the said
buililinga eileoding thereon without written title ibereto, is good
prescriptive title against all the world, except the slate and persous
not suijurit, unless such possession originated iu fraud, and honest
mistake of the true liae is not fraud. The fact lliat Ibe bui'dings
stood so long over what may now be claimed to be the true line, is
a conclusive presumplion that the claim is not good, but that the
old buildings murk the true line; especially against a purchaser
who bought after twenty years occupancy, and one of whose
grantors had knowledge of the buildings years before.
Evidence. Title. Prescription. Before Judge Tomp-
kins. Chatham Superior Conrt. May Term, 1 878.
To the report contained in the opinion it ie only neces.
Bary to add the following:
Shiels brouglit ejectment against Roberts. Tlie ease
turned upon the defense of prescriptive title by reason of
twenty years' possession in himself and those nnder whom
he claimed. The jury found for the defendant. Plaintiff
moved for a new trial on the following, among other
grounds :
(1). Becanse the conrt ruled ont testimony showing that
the stnictnreB on lot No. 18 claimed by defendant wore
dilapidated and of little or no value.
(2). Because the court admitted testimony tt-nding to,
show that those under whom defendant claimed the title tu
SEPTEMBER TERM, 1879. 371
Shield vs. Roberts.
lot No. 17, had always occupied and used as belonging to
them that part of the building which projected on to the
adjoining lot No. 18.
{S\. Because the court refused to charge that "possession
originating in mistake is not adverse until discovered."
(4r). Because the court refused to charge that " defendant
must show possession in himself, and cannot tack to his the
possession of another, unless he show deeds conveying the
land so held."
(5). Because the verdict was contrary to law and evi-
dence.
The motion was overruled, and plaintiff excepted.
•
Jackson, Lawton & Basinger, for plaintiff in error.
R Falligant, for defendant.
Jackson, Justice.
The plaintiff held perfect written title to city lot number
18 in Gilmerville ward. Savannah ; the defendant, to num-
ber 17. Defendant and those from whom he derived pos-
sessory right continuously for some twenty-six years, oc-
cupied a certain building which covered some feet over
the line between 18 and 17 — as testified by the surveyor
from the city map. The plaintiff sued for the part of 18
thus covered by these old buildings. The jury, under the
charge of the court, found for the defendant, and a new
trial being refused by the superior court, the plaintiff brings
the case before us.
1. We do not think that plaintiff was hurt by the refusal
of the court to admit evidence touching the dilapidated
condition and value o'f the house erected on the land in
dispute, because there was no issue touching mesne proiito
before the jury, or equitable plea to set off building against
me&ne profits.
In respect to title on paper, or by prescription from pos-
session for twenty years, it was wholly immaterial whether
372 SUPREME COURT OF GEORGIA.
6h1elB tw. Roberts.
the house was worth a hundred or a thousand dollars. Did
defendant have snoh possessio pedis as to work prescription,
was the whole question in the case and the only issue
decided by the jury.
2. The deeds to lot number 17 being in evidence, show-
ing privity of estate between defendant and a long line of
grantors to that lot, the court allowed the defendant to tack
his possession of part of 18 by the buildings extending a
few feet thereon, to the possession of his predecessors by
parol proof that they all successively occupied the strip of
18 covered by the buildings. We do not see how otherwise
the proof could be made that as each grantor left, his
grantee entered, and continuity of possession — of actual
possession — was preserved. A written tiansfer of the right
to possess, could not show actual possession. The right to
possess is one thing, and may be shown on paper ; possessio
pedis is another thing, and must be shown by parol evidence
from some man who saw the actual entry and continuance
thereof. And so this court has held.
3. Our Code declares that " actual adverse possession of
lands by itself, for twenty years, shall give good title by
prescription against every one, except the state or persons
laboring under the disabilities hereinafter specified," which
disabilities are those of married women, minors, etc., etc.
No scrap of paper or scratch of pen is necessary. Nothing
but actual, bona fide possession. I say hona fide^ because
section 2673 declares that prescription cannot originate in
fraud. Its language is ^^ possession to be the foundation of
a prescription must be in the right of the possessor and not
of another; must not have originated in fraud; must be
public, continuous, exclusive, uninterri^ted and peaceable,
and be accompanied by a claim of right."
This title in this case to the piece of land sued for, is
clearly made out according to this statute. Every condi-
tion is complied with, and the only point left for debate is
this, must all this possession have been after the Code I We
think not. It was the law under a diflferent name before
SEPTEMBER TERM, 1879. 373
Shiels vs. BoberU.
the C^de. Possession of the sort prescribed in §2679 of
the Code for twenty years always was a bar by the limita-
tion laws, as held by our courts, to a suit in ejectment. Such
is my own recollection of the practice before the Code, and
the Chief Justice adds the weight of his longer experience
to what I remember. This title by prescription is in the
natnre of a limitation law — a law to quiet men's estates
where they have been long in possession.
The codifiers pat in the Code the essence and spirit of
Georgia law since 1767. Cobb's Digest, 560. He who
made that Digest and its index, codified this part of our
Code ; and in the index to the Digest the act of 1767 is
referred to in these emphatic words: "20 years possession
good title." Index to Cobb's Digest, p. 1235. Therefore
it is wholly immaterial that this possession started and con-
tinned sometime before the Code. Besides, it was competent
for the legislature to take into account the past possession,
and tack that to the future possession to make the twenty
years. Just as they could enact a law that men must sue
within a certain time, or right as well as remedy is gone ;
as they did by the limitation act of 1869. It is true these
prescriptive titles are not exactly limitation laws as held by
this court; but they are founded on the same principle,
and identical in results.
If, as contended for by the counsel for plaintiff in error,
we hold that no twenty years' possession could make a pre-
scriptive title if it originated in mistake, we should have to
add to our statute. It is true that some of our reports of
decisions look that way in respect to seven years possession
under written color of title. See 16 Ga,j 141 ; 20 /J., 190 ;
29 /ft., 152 ; 34 /ft., 290.
Cut no case has been found where the principle has been
applied to twenty years' possession ; and we do not mean so
to extend the ruling.
It will never do to hold that an innocent mistake of a
few feet of one's line, and the erection of costly buildings
projecting over,and so standing and occupied by generations,
374 SUPREME COURT OF GEORGIA.
Cox v$. The State.
cannot be the origin of a proscription, hut that it is 60 cor>
rupt as to destroy the validity of the whole possession, and de-
prive families of firesides aronnd which they sat at home for
years upon years. Nothing but a corrupt origin, or cor-
ruption somewhere in the line of possession, ought to work
the overthrow of such a sacred title. Fraud in the origin
ought, but nothing else, and such is the law. The eloquent
counsel for the plaintiff in error fixed the- thonght in the
mind of this court in a remark not made to be forgotten :
'*It is neither the length nor the course of the stream — it
is the fountain-head that gives character to its waters."
Let the thought impressed on our minds by the strikingly
beautiful figure be stereotyped on the pages of our reports,
but let it be added that the character which an honest mis-
take gives to future events is not corrupt or fraudaleot;
whilst, as our own Code prescribes, fraud in the origin of
the possession taints the entire sequence with its own im-
purity.
Considering the entire case in view of all the law and
the facts, we conclude, after mature deliberation, that the
judgment which protects the long possession of the defend-
ant is riglit, and it is therefore afiirmed.
Judgment; affirmed.
Cox V8. The State of Georgia.
1. Upon a showing for a continuance of an indictment for murder, one
month and a half after the occurrence of the homicide (the prisoo^r
having been painfully wounded by the deceased in the rencounter},
whether the excited state of the public mind is such as to prevent a
fair and impartial trial, and also whether the prisoner's condition
•
physically and mentally, has been such as to fit him for comrowu-
eating sufficiently with his counsel, and otherwise preparing for his
defence, and whether it is such as to enable him to undergo, with
needful strength, composure and vigilance, a trial for his life, are
questions addressed to the sound discretion of the presiding judge:
and mere strictness in the exercise of the discretion and in 0Te^
SEPTEMBER TERM, 1879. 375
Cox t* The State.
ruling the showing, not HOiounting to abuse, will furnish no ground
for A reviewing court to interfere.
2. Jury commissioners, in fact acting as such, and recognized by an
order of court filling a vacancy in the board, thougli not naming its
members, and also recognized by adopting in practice the list which
they have prepared and filed, are commissioners de facio. if not de
jure; and that no order of their appointment appears on the min-
utes, will not, on a trial for felony, be cause of challenge to the
array put upon the prisoner. Nor is it a cause for such challenge,
that in selecting tales jurors, the sheriff consulted the list and took
names therefrom in ihe alphabetical order in which they stand on
the list, confining the selection first to names all beginning with
one and the same letter. There is no statute putting on the sheriff
any restriction as to what he shall take for a guide in fixing upon
the particular persons whom he will summon as tales jurors, so that
they be qualified to serve.
3. When a juror, after answering the prescribed statutory questions so
as to appear prima facie competent, is put upon the presiding judge
for further trial of his competency, the judge may decline to allow
any other questions to be propounded to the juror, and may confine
the investigation to evidence aliunde and its effect.
4. Though a witness may know that there was some indistinctness in
his hearing as to the words or the sense of a particular statement,
he may testify to its substance as he understood it, and his doubt as
to whether he heard correctly will only detract from the force and
value of his testimony, not render it incoqipetent as inferential
rather than immediate and direct.
5. Stenographic notes of testimony taken down at the coroner's in
quest, and afterwards written out in ordinary character, may, upon
due proof that the writing is a correct minute of what tbe witness
testified, be read to show contradictions between that testimony and
the testimony detailed by the witness from the stand, he being first
examined on the alleged discrepancies, and his attention called to
the same. An objection to the introduction of the paper, or to the
reading of its contents, on the ground that ''it was not sufiiciently
shown that the said (witness) had sworn before the coroner as ap-
peared from this written report of his evidence, and that he could
not be impeached by such written report of his evidence," will not
raise the question whether only certain parts of the contents, and
not the whole, should have been submitted to the jury.
6. Where there is a mutual agreement to arm and fight, and the parties
separate and arm with pistols, and they meet within an hour, and
fight with the pistols, all pertinent acts and declarations of either
in the interval belong to the res geatcB of the hostile enterprise.
7. Acts are pertinent if they are done pending the enterprise, and whilst
it is in continuoua progress to its catastrophe, and are of a nature to
376 SUPREME COURT OF GEORGIA.
Cox v§. The State.
promote or obstruct, advance or retard it, 'or to evince essential
motive or purpose in reference to it; and declarations are] pertinent
if they are uttered contemporaneously with pertinent acts, and serve
to account for, qualify or explain them, and are apparently natural
and spontaneous.
8. Generally, when part of a conversation has been introduced in evi-
dence, the rest of it may be brought out by the opposite party on
cross-examination of the witness. The prisoner having proved that
the deceased applied for the loan of a pistol, about twenty minutes
beforo he was killed, together with a part of what he said at the
time, the balance of what he said at the same time and place and
in the same conversation was within the rule, and if not admissible
on the principle of res gest<B, was admissible as the remnant of a con-
versition opened up in the direct examination of the witness.
9. Conceding that certain declarations made by the deceased whilst
hostilities were pending, and within twenty minutes of the fatal
collision, were so much in the nature of narrative, or mere recital,
as to be of doubtful admissibility, or even inadmissible, on the prin-
ciple of resgestfB, yet, where the same declarations in substance have
been put in evidence as a part of a conversation into which the
prisoner entered during the direct examination of his own witness,
(the balan(;e of such conversation coming out on the cross-exami-
nation), and where the prisoner has himself proved substantially
the same declarations on the part of the deceased by another of his
witnesses, or the state, without objection, so far as appears, has
proved tbem by one of its witnesses, the subsequent admission of
evidence to the same effect from another witness in behalf of the
state is not necessarily cause for a new trial. If the jury already
have before them doubtful or objectionable matter, and there is no
motion to withdraw it, the repetition of it by another witness,
though objected to, may be treated as not sufficiently material to
require a new trial.
10 Where the evidence indicates that the homicide was the sequel to
a concerted and pre-arranged scheme on the part of both combat-
ants, to arm and meet for mortal combat, the court may, as a starting
point for further instructions, charge the jury as to the legal conse>
quences of such a combat resulting in death, though the evidence
shows that after arming one of the parties ceased to intend, and the
other ceased to expects meeting at the place appointed, and though
no meeting occurred at that place, and the scene of the rencounter
was, without any express concert, shifted to another place in the
same neighborhood.
11. In relation to whether there was not a consent of both wills, or a
mental concurrence between the parties, in meeting when and where
they did, though it was a little later than they had contemplated,
and at a different place from that expressly agreed on, and conse
SEPTEMBER TERM, 1879. 377
Cox V*. The State.
quently whether the actual collision was not in its nature the same
as that which had been pre-arranged, with no change except in the
scene and the precise time of the combat, the evidence admitted of
two constructions: and for this reason, also, such a charge as that
mentioned in the next preceding note was not inapplicable to the
case. Where two yiews are fairly possible to be taken of the evi-
dence, one that notwithstanding variations in time and place from
the original scheme, and notwithstanding an apparent abandonment
of the scheme itself, for a short interval, there was finally a seturn
it, and an execution of it in its main elements; and the other,
that the meeting, at the time it took place, was designed by one of
the parties only, and the other did not desire or intend it, it is allow-
able to submit to the jury the law of each of these states of fact.
12. The charge of the court, like all other deliverances in human lan-
guage, is to be construed together as one whole, and when one part
of it plainly tempers and modifies another, and the ultimate sense
and impression are correct, the true standard of practical sufficiency
is attained. As long as jurors arc sworn to render a true verdict,
according to evidence, it cannot be error for the court to instruct
them to do so; at the same time telling them to give such force to
the prisoner's statement as ihey think proper. The statement may
aid them in ascertaining what the true significance of the evidence
is. but for the jury to render a verdict in conflict with the evidence
because the statement conflicts wi'h it, would be to lose sight of the
terms of their oath .
13. The court committed no error in denying a coniinuance, no error
10 organizing the jury, no material error, if any at all, in admitting
evidence. Nor did it commit any material error in charging the
jnry. The charge, as a whole, was sound in doctrine, clear and con-
cise in statement, fair in tone and spirit, both to the state and the
^accused, applicable throughout to the facts in evidence, and accom-
modated to each and every theory of the prosecution or the defense
which the testimony afforded any warrant for considering.
14. The verdict was justified by the law and the evidence, and was
not contrary to either. There was no error in overruling the motion
for a new trial.'
Warner, Chief Justice, dissented.
Criminal law. Murder. Continuance. Jury. Witness.
Evidence. lies gestoe. Charge of Court. Prisoner's state-
ment. New trial. Before Judge Hillybr. Fulton Supe-
rior Court. April Term, 1879.
Cox was placed on trial for the murder of Alston, alleged
to have been committed on March 11, 1879. The indict-
378 SUPREME COURT OF GEORGIA.
Cox e*. The bUle
ment was found on April 3d following, and the case called
for trial on the 29th of the same month. The defendant
moved in writing for a continuance, because he was ad-
vised and believed that he could not then obtain a fair and
impartial trial, on account of the great excitement and
prejudice against him in the public mind of the people of
Fulton county ; that this prejudice was engendered in the
public mind, and still exists to an " increased extent," in
consequence of partial and ex parte statements made in the
public press in said county, which were exhibited to the
court. That in consequence of the serious and dangerous
wounds received by this defendant, and hie close confine-
ment in jail, and by reason of his great mental and bodily
suffering, he has been unable to make the necessary correc-
tions, and meet and overcome this undue prejudice and
public excitement, and to confer with his counsel fully in
relation to his defense.
Affidavits were filed both for and against the motion, from
which it appeared that the excitement in the county did not
extend beyond that which would be produced upon the nnex-
l)ected homicide of any prominent citizen who had many
warm personal friends in the community ; that whilst defend-
ant was wounded by a shot through the wrist, which also
passed through his mouth, carrying away some c^ his teeth,
and imbedding one of the teeth In his tongue, he was by.no
means in a dangerous condition, and in fact had had raany
and frequent consultations with his couiisel, some of them
lasting for hours. It was shown by two witnesses that more
than a week before the trial he said he was well, and ready
and anxious for trial, and did not want any delay.
The newspaper articles were mainly regrets on account
of Alston's death, portraying his raany good qualities of
head and heart, his desire to avoid the difficulty, his gallant
bearing when it was forced on him, and expressive of the
deepest sympathy with his bereaved widow and children.
The motion was overruled, [let ground of the motion
for new trial.]
SEPTEMBER TERM, 1879. 379
Cuxrtf. The St.iie.
The defendant pleaded not guilty. When put upon liiin,
be challenged the array of forty-eight jurors on the fol-
lowing grounds :
1st. Because there was no order of the judge of the supe-
rior court of this circuit appointing three commissioners to
revise the jury list of the county, as required by the stat-
ate.
2d. That by the order of Judge Hillyer, entered on the
minutes of the court, only one commissioner was appointed
for the purpose aforesaid.
3d. That the jury list of said county not having been re-
vised as required by law, the sheriff had no legal authoity
to summon said panel of jurors, and said array ought not
to be put upon defendant.
4tb. Because the sheriff did not summon said panel from
the body of the citizens qualified and liable to jury duty,
but took an alphabetical list of names from the jury list
and served them alone.
In support of the challenge, the following order was read
from the minutes :
"State of Qboroia— County of Fulton :
It appearing to the court that Clinton I. Brown has resignfil hit
position as commissioner to revise the Jury box of siiid county, and
uid resignation being duly accepted it is ordered that James R
Wylie lie, and he U hereby, appointed as one of the commissioners to
revifso the Jury list and boxes of the county aforesaid, and said .Timet
R* Wylie hat appeared and duly sworn and qualified as required by
law. Qborob Hilltkk.
December 28. 1878. Judge 8. 0. A. C*
Upon demurrer by the prosecution, the challentre wai
overruled. [2d ground of the motion for new trial. |
The evidence presented, in brief, the followin<r facts :
The homicide occurred in the ofKce of the treasurer of
the state of Qeor^ia^ at the capitol building, in the city of
Atlanta, at about half-past three o^clock on Tuesday after-
noon, March II, 1879. On the Saturday precedino^, de-
fendant received a letter from Calhoun, Alston's law part-
ner, requesting him to come to Atlanta at once. He came
VSI-M
SUPREME COURT OF GEORGIA.
in response to this letter, arriving in the city on Monday
morning. Defendant liad rented a plantation from Gen.
Gordon, in Taylor eonnty, where lie then was, the latter
agreeing to fnriiisli sixty convicts to cnltiviite it for the term
of eight years, for wliicli (the plantation and the eonvicis).
defendant was to pay him annually Hfty hales of cotton
Goi'don wished to dispose of his interest in this lease of
convicts, and to do eo iiad to negotiate with Cox for the
purpose of getting rid of his incnmbrance. One Walters
had been corresponding with Gordon in reference to buying
his interest, and came to Atlanta about the same time
that defendant did, for that purpose. lie had written lo
Gordon that he would not buy at all snhjout to defendant's
ineuQibrance. Gordon had telegraphed to him on the pre-
ceding Tlinrsday, that deceased would leave Washington on
Saturday to come to Atlanta, and that he had full autliority
to transfer hia (Gordon's) interest, Walters came to At-
lanta for the pnrpose of purchasing that interest. He ar-
rived early Saturday morning, met Alston at the train later
in tlie day, had a ten minutes' conference with him, and de-
termined to remain over until Monday morning. All three,
defendant, deceased and Walters, met in the office of Nelme,
principal keeper of the penitentiary, on Monday morning
at from nine to ten o'clock. Tliey discuseed the matter of
tiie sale of Gordon's inti^rest in a friendly way. Deccated
disclaimed any intention of selling defendant out, but stated
that he propobcd to sell the Gordon interest subject to hia
incnnibrance. On being asked by deceased whether he
would not dispose of his interest, defendant replied that he
would sell anything in the world ho had except his wife and
hia children, and nobody wanted them. After some eon-
vereation the parties separated, and Walters comiuenced
-..DCgotiating with defendant for hia intercr^t, dmring to
pnrctiase in order that he might trade with dccuasml. They
finally came to an understanding and went off to find de-
ceased, but when found, he said it wua too late, iis he had
BoV ' for $4:,0(JO.UO, subjeet to defendant's lease.
SEPTEMBER TERM, 1879. 381
Cox 9t. The SUte.
This was on Monday afternoon. That evening Walters
employed D. P. Hill, Esq., to help him make tlie trade, and
the next morning (Tuesday, the day of the homicide), Hill
went to the office of deceased, and the latter said that if
Howard did not raise the money by twelve o'clock Walters
should have the contract. Defendant and deceased came
into the city on t!ie same train that morning, the former
having boarded it at Decatur, and the latter at Kirkwood.
They appeared perfectly friendly, were seen on the streets
of Atlanta walking arm-in-arm, and there was no reason to
suppose that there had been any interruption of the intimate
relations which usually existed between them. About half-
past two o^clock, defendant was in a saloon with some friends
taking a drink, when deceased came in. Defendant asked
him to join them. He declined to drink, but at the sug-
gestion of defendant took a cigar. Defendant said to him
that he wished to see liim, and they walked out of the bar-
room arm-in-arm, and went into the back room of a neigh-
boring barbershop, on Marietta street, 150 or 200 ^'ards
from the scene of the homicide.
Up to this time there was probably no ill-feeling on the
part of defendant to deceased, but beseemed excited about
the pending trade, fearful lest his interest should be preju-
diced in some way, and possibly apprehensive lest what
appeared to be an opportune occasion of selling out his
lease of, or interest in, the convicts, should be lost.
. What occurred in that back room of the barber-shop can
only be known through the declarations of deceased and of
defendant made in the interval before the homicide, not ex-
ceeding an hour, and probably less, the acts of the parties
during that short period, and the statement of the defendant
on his trial. One of the main grounds of controversy be
fore this court was the admissibility of some of these dec
larations.
Deceased went f i om the barber-shop to the treasurer's
office, and thence up stairs to Nelms' office, in the capitol^
this office being on the second floor of the building. Nelma
382 SUPREME COURT OF GEORGIA.
upon his direct examination for the defense, testified as to
what passed there, as follows: "It was probabl; three
o'clock in the da; tliat Col. Alston came in and asked me
for a pistol, and I said mine was at home shot out, and I
asked him whnt be wanted with it, and he said he had liked
to hare had a difficulty, and I said come in and tell me
about it, and he came in ant) sat down. I asked him who it
was with, and he said it was with Ed. Cox, and told me
about it."
On cross-examination, when counsel for the prosecution
asked witness, "What did he (Alston) say ?" alluding to the
conversation where it was left on the direct examination,
it was objected that the declarations of Alston in the ab-
sence of the defendant were inadmissible, and also that the
evidence sought to be introduced by the question pro-
pounded was but part of a conversation. The court allowed
the question asked, and stated that the defense was entitled
to all the conversation. [7th ground of the motion for
new trial.]
The examining counsel then said to the witness, "state all
that conversation," and the witness answered thus : De-
ceased said, "Why Melms, he carried me in to take a drink
with him. I took this cigar. (He had a cigar in his hand
at the time.) And then lie took me into the back-room of
a barber-shop, shnt the door, and said, 'Bob, I want to see
that power of attorney yon have to sell Gordon's interest,'
and I said, 'I would not show it onder compulsion,' bnd
Cox said, 'I am going to see it before you leave this room,'
And 1 said, 'Ain't yon a nice great big rascal here with your
knife, when I have not got a piece of steel on me, to try to
force me to terras.' And lie (Cox) said, 'Go arm yourself,
and I will wait for you.' He ia waiting for me now." He
asked me again for a pistol, and witness said his pistol was
at home. That was about all he said to me, and witness
began to talk to him, and said, "Alston, there is no need of
i difiienlty between you and Cox, yon are both friends, and
let me attend to this matter, and be a mediator. Yon are
SEPTEMBER TERM, 1879. 383
Cox v$. Thci State.
not here to interfere with Cox," and he said, "No !* But he
baB an idea that I am here to sell him out." Witness said,
"You wait, and let me be a mediator," but he did not wait,
and got up and started down to the treasurer's office.
As to what transpired in the barber-pliop, sul)stantiallj
the same facts as testified to by Nelms, were subsequently
proved, without objection, by Howard, a witness for the
state, and by Gov. Colquitt, a witness for the defense, on
examination by defendant's counsel.
At the treasurer's office, within not exceeding twenty
minutes of the homhide. Murphy, from whom deceased
borrowed a pistol, over the objection of defendant, testified
to the following conversation : "I am certain I didn't notice
Mr. Sams; I think most likely I was at the cash-drawer ; I
am frequently called to the cash-drawer. I occupy the
middle room and Renfroe the rear room ; I did not notice
Sams when he came in. When I walked up Mr. Howard
had got in, in the meantime, and Mr. Sams had delivered
a message to Mr. Alston, and when 1 got back to them I
heard Sams say he regretted very much to be the bearer of
such a message, and he was in hopes very much that he
should not be able to find Mr. Alston, then they had some
other conversation that I did not understand. Mr. Howard
arose from his seat and started to walk in the passage way
out, and as he reached the middle door he said, 'don't let us
let Alston go down there, Cox has sent after him, and don't
let as let Alstx>n go down there,' and If aid, 'Of course not,'
and he had agreed not to go, but I saw that Alston was
excited. In the conversation before, he had sorter cooled
ofF, and we called him and told him he ought not to go. I
said, 'You have a family and Cox has one. You say Cox
has got no c^iuse for a difficulty, and let him cool off and he
will see it.' He said, 'What shall I do}' and I said, 'Send
him word that you have reconsidered the matter, and that
yon will not go, for him to go his way and you will go
yonrs.' He went back and set down on a seat next to For-
syth street, and Sams was in a seat near Renfroe's room.
J
S84 StrPREME COUKT OF GEORGIA.
Cos vt. Tbe State.
Ahton eaid to him, 'Ton go back and tcII Mr, Cox that I
have reconsidered the matter, and am not coming down
there. There is no cause for a difficnlt^ between us; for
him to go his way and I will go mine. He attond to his
bneiness and I will attend to mine.'"
Defendant's objeotion was that this was a conversation
not in the hearing of the defendant, and in no way con-
nected with the enconnter between thcdeceai^odiind defend
ant. [Orb frronnd of the motion for new trial.]
The conversation between Sams and Alstim, as testified
to by Mnrphy, had already been proved by Howard and
Renfroe, witnesses for the state, by the former without ob-
jection, and by the latter over objection on the part of
defendant, and aleo by Sams, a witness for the defense, and
wliilst on the direct examination by defendant's connsci.
I'lom tlie treasnrcr's office deceased went to Bcrron's
galoon, abont seventy-five or eighty yards from the capitol,
on Forsytli street. The capitol is on the corner of Marietta
mid Forsyth streets, the main entrance thereto beingon the
lat ti^r. The treasnrer'e office is in the corner of the capital,
(on the first floor) having windows opening on cacli of these
streets. What transpired at Borron's will best appear from
the testimony of Gov, Alfred H. Colqnitt, a witness for the
defense, and drawn ont by defendant's counsel, as follows ;
" I think I left home about three o'clock, or a nunutc or
two after. On my retnrn to the capitol I saw Cox cross-
injr Forsylh street when I reached Berron's. I was soventy-
fivu or eighty yards from him ; it took me some four or five
minutes to walk from my home to that place. Major War-
ren was with me when I saw Cox; Cox was walking rap-
idly in the direction of the entrance of the capitol on For-
sytli Bti-ect. He turned at the corner and went diagonally
across the street : I did not see Cox go in ; I did not see
him aay more after that that day, Wlion I got !■> Berron's
I met Alston there. I tnppoFe I met him abont the centre
of the building; the front of the building I supposo is
about forty feet; there are two doors to the building;
SEPTEMBER TERM, 1879. 385
Cox m. The State.
I don't know about the windows; he was coming np
Forey th street, I was coming down. There was nothing nn-
nsnal in his manner; he was walking leisurely. Alston*
and I were standing there facing towards the capitol when
I saw Cox crossing ; Alston was standing with his back to
the wall and addressing me rather at my side, his fac3 was
nearer to the right, towards Marietta street. Alston did
not ^o back with me to the capitol. I left him there, I
wae detained there about two or three minutes by the con-
versation with Alston. When I met him he remarked that
since he had seen me he had been subjected to a very
severe trial. He said that he had met Mr. Cox and Cox
had invited him to take a drink, which he declined ; that
he then invited him to take a cigar, which he accepted, and
that they then walked out; 1 did not pay close attention to
wliether he said it was in the same room or not. That
then they walked togetiier into a back room of some saloon,
and that when they went in there Cox closed the door and
said to him * Iwant you to show me that power of attorney
from Gordon — have you the power of attorney V Then h^
replied, 'I have,' and Cox said 'I want to see it, and I watA;
yon to sit down here and write a contract as I tell you under
the power of attorney.' Then he replied that he would noit
be forced to do so. That he had already made some agree-
ment about it and that he could not make any other with-
out dishonoring himself, and certainly would not if such
means were used forcibly. That then Cox drew a large knife
and told him that he must make that contract. That he ex-
postulated by saying 'you have taken the advantage of me, I
am unarmed and you must let me out of thisroora,'andCox
replied *I will do so if you will return herein ten minutes.'
That the door was unlocked and he came out. That was
the conversation he related as having occurred between
him and Cox in ther saloon. He then said 'I sent word to
him that I had reconsidered it and would not go back ;' he
said he was in doubt what to do ; he concluded he would
not go and that he felt that he did not know but that it wae
886 SUPREME COURT OF GEORGIA.
Cox V*. The auie.
his daty to bis family that he should take a double-barreled
shot-gun and shoot him when he saw him. I told him
may be he was regarding the matter in too serious a light ;
that I hardly thouglit there would be need of such appre-
hensions as he supposed. He said, 'No, I am not mistaken,
hQ is bent upon taking my life ;' I think he then remarked,
I don't know in what connection, perhaps in connectioo
with the using the double-barreled shot gun, that he had a
pistol but that ho thought he ought to take a double-
barreled shotgun. He staid there at Berron's, and said, 'I
have had no dinner, and came over here to get my dinner,'
with a view to explaining why he was there I suppose.
When he made this last remark, 'I think he is intent on
taking my life,' he called my attention to Cox who was
crossing the street, and said, Hhere he is hunting for me
DOW with his hand on his pistol.' I thought from my view
and the way his arm was bent, that he had his hand on his
back hip-pocket, that was all ; and 1 said, ' you go in here
and get your dinner and come on ; I will go to the capitol
and see what I can do about it.' Alston was outside when
I left. I did not look back ; we parted and 1 supposed
he was going in. 1 got a glimpse of Cox a^ter that as he
passed across the room where the secretary staid up stairs ;
I went straight up to my office by the Forsyth street en-
trance, and did not stop anywhere ; it was not very long be-
fore I saw Cox pass ; first Mr. Warren and I parted and
I turned into my office, and he into the secretary's office. I
told him to tell Mr. Nelms to come to me, and walked into
the office and put my hat and cane down, and as I turned I
saw Cox pass from the door there and through that into the
room of the warrant clerk. Nelms came to me ; I told him
that Cox had just passed down and I want you to overtake
him and prevent any difficulty if there is one likely to oc-
cur. There is some quarrel between him and Alston, and I
want you to look after that. He said there <wa8 a lady in
his office with some matter she wanted to lay before me.
I said that he must not delay, but go on and overtake Cox ;
SEPTEMBER TERM, 1879. 887
Cox «f. The State.
and he said he would get his hat and go, and went off
rapidly. 1 saw him as he passed, four or five minutes after-
wards. 1 heard the first shot. I went down after the shoot-
ing. When I met Alston in front of Berron's and we had
the conversation about Cox, I told him to go in there so as
to get time, and I wanted him to go in there so that he
would feel that he went in there without any idea of dodg-
ing or getting out of the way for fear of any one."
Deceased went into Berron's, ate a cracker or two, went
out and walked down to the treasurer's office.
Defendant went from the barber-shop to a neighboring
saloon, endeavored to borrow a pistol from three different
persons present, requested a friend to stand by him. as he
was involved in a difficulty, went over to a gunsmith's shop
in another portion of the city, bought a pistol, had it loaded
and returned.
Woodward, a witness for the state, who was in the gun-
smith's shop at the time, making some purchases, testified
as follows: '' lie said something when he went out to the
effect that he (Heinz, the gunsmith,) would hear from him
soon. I can't be positive that he said these words, but if I
had to swear what he said I would swear that he said these
words rather than anything else ; that is the substance of
what he said. I would say that I did not hear distinctly
enough, not that I did not recollect. He said, 'you will
hear from me soon.' If he did not say that he said other
words that amounted to the same thing. I say it is that
rather than anything else."
Counsel for defendant moved to withdraw this evidence
from the jury upon the ground that the witness had testi-
fied, not as to his recollection of what was said by the de-
fendant, but as to his opinion of what he muet have said.
The motion was overruled. [Sth ground of the motioa
for new trial.]
On defendant's return from the gunsmith's shop, he met
Hodgson and Sams, and one or both went with him to the
back room of the barber-shop, where Sams remained but
388 SUPREME COURT OF GEORlIIA.
two or three minutCB. Then he went on the message lo
Alston, with the result as already detailed. In the mean-
time Nelma came to eee defendant with tlie view of settlinj;
the matter in eome way, bnt he declined in a polite way to
have any convereation with him on the snbject, elating that
he was, waiting to see a friend by appointment. Sams re
tnrned and delivered Alston's message to wliieh defendant
replied, "That is all right, but it does not snit rjic. I will
go and see him." He then started towards the capitol.
Sams endeavored to stop him, bnt he pulled away.
As he crossed Forsyth street he was seen by Governor
Colquitt and deceased who were then standing in front of
Berron's saloon. He wentintothe trensnrer'sotlice, walked
rapidly ont, and went np to the office of the principal keeper
of the penitentiary where he found Nclms engaged with a
lady. He said to Nelms that ho wished to Bee Itim, a^ked
where cither Howard or Mnrphy was, took a scat by the
window, and remained a few minntes. From that window
he commanded a view of the crossing over which deceased
passed on his retnrn to the capitol from Berrau's saloon.
Nelms said to him that he was drnnk, or sonietliing was the
matter with him. He suddenly got up, went througii tiie
office of the private secretary of the governor, tlirough that
of the warrant clerk, and went down to tJie treasnrer's
office. Tlie governor, who had jnst arrived at his office
from Berron's, saw him pass, and sent bis secretary imme-
diately for Nelms, and told him to follow defendant and
prevent a difficulty with deceased, as there was a qnarrel
pending between them. Nelms got his hat and followed
liim into the treasiiror'f office.
This office is composed of three rooms or subdivifiions-
The door by which one enters opens into a narrow passage
with a high connter on the right and a partition wall on the
left. Into this partition wall is a door opening into a water-
closet. At the end of the passage-way is a glass door which
closes itself by a spring iialess hooked back. Passing
through thid door one enters a room 12x13 feet, with three
SEPTEMBER TERM, 1879. 389
Coz tw. The State.
doors to it besides that of entrance, the first to the vanit on
the left ; the seeond, immediately opposite to that of en-
trance, leading into another room, and the third to tlie right
leading into the same back room near the Forsyth street
wall. In the corner near this last door is the stove. The
desk of the treasurer is located in the back room, so that
from his seat in a revolving chair he can see through the last
door; in fact, his chair is right at that door. Immediately
opposite to his chair is the passage way behind the counter,
to the money-drawer, etc. In the center room are chairs
and a table, leaving but very little unoccupied space.
As defendant came down the steps towards the treasurer's
office, deceased was seated in the middle room. He had a
few mmutes previously said to Renf roe, " This is an awful
thing to have a man hounding you in this way." Renfroe
said, "Did not you meet Cox 5" He replied, "No! he
has gone up-stairs hunting me." Then it was that Peter
(a colored boy employed about the capitol) said, "Col.
Alston, Cox is coming down the steps now," and deceased
said, " Go and fasten that door," and Peter went to do so,
and met Cox, who passed him and came into ttie room.
(Renfroe had testified on cross-examination that when de-
ceased came in he asked him if he did not meet Cox and he
replied to him — here the witness stopped, and when ex-
amined in rebuttal by the state, gave the above conversa-
tion. Upon his direct examination, he being the first wit-
ness for the state, several times he was on the eve of giving
this evidence, but on objection, counsel for the state did
not then press the examination any further.)
Counsel for defendant objected to the above conversation
between deceased and Renfroe because not in the presence
of the defendant, and because had five or ten minutes be-
fore the rencounter. The objection was overruled. [6th
ground of the motion for new trial.]
They also objected to the question propounded to Ren-
froe, which drew out the answer as to the sayings and ac-
tions of Peter, to-wit : " What was the reason that Colonel
SUPREME COURT OF CJEORGIA.
Alston told Peter to shntthe door J" on the ground tliat the
answer wonid be a concluBioti which could only he drawn
b; the jnrv after hearing tlie facts, and bocausc this coriver-
Gation bctweeD Peter and Alston was not in the bt;ariii<r of
the defendant.
Tlie court said let the witness tell what he saw and heard,
and the answer went in, [5th ground of motion for new
trial]
As defendant entered the middle door, with his right hand
QpOD liis pistol, which was so far drawn from his pocket as
to be partially exposed to view, deceased rose from his chair
and turned to meet him. Defendant said, " Yon promised
to meet me down the street and settle this thing, wli^' did
not you do it ?" Deceased j-eplied, '■ Because I have recon-
sidered the matter and do not want to have any difficulty
with yon." Defendant said " I will brand yon " something
or other. Renfroe told them they coutd not have a diffi-
culty there. Defendant answered, " very wol!," took hold
of deceased's arm and said, "Cotne out and let us settle
this difficulty outside." Deceased pulled back and would
uot go. Defendant moderated his tone and sat down in
front of deceased. lie said to deceased that bo liad wronged
him; had not treated him right, and he was going to make
him do so. Deceased said, putting his hands upon the lap-
pels of defendant's coat, in almost a playful manner. " Cox,
let ns stop this ; there is no use of having a difficulty; I
don't want to have any difficulty with yon j I don't want to
kill yon, and don't want you to kill me." Defendant said,
"There is no danger of your killing me," rising from his
seat and nnlatching the hook which held open the middle
door, and it swung to. Ilo then said, " This tiling has got
to be settled bore now." Renfroe put his hand on defen-
dant and said be must have no fight in his office. Defen-
dant quieted down again, and Renfroe sat down by his desk
and commenced writing. Nelms then came rapidly into
the room, and defendant again got up. Renfroe beckoned
Nelma to htm and said, " Don't let those men fight ; they
SEPTEMBER TERM, 1879.
CoiM. IboStUs.
have been qiiarreliiiK." About the time of Nelma' entrance,
ilefuiiciant rose from hia seat, and as Nelme walked back
from Rcnfroe'e chair, defendant turned and took bold of the
door knob with bis left hand, exposing to full view the
cjlindcr of his pistol which he held in his rigbt hiyid. I>e-
cca^td said, " Cox, are you goinj; to shoot me, are yoa going
to slioot me now V at the same time rising from his ehair,
unljuttoning bis coat, and walking towards tbe door
■A the back room at which Renfroc was seated, as if
tu pa^s in. Aa he rose defendant drew his pistol entirely
from his pocket and walked on a parallel line to that of
duaascd. This throw Nclms beCweun tlicm. As deceased
pasj^ed Nclms he looked over towards defendant, wheeled,
tircw his pistol and tired. Defendant fired almost eimul-
'anconsly. Deceased stepping to bis right, continued firing
iritlt great rapidity, being armed with a Tranter setf-cock-
liiir weapon, enabling liim to shoot as rapidly as he conld
piitl tbe trigger. Defendant seemed astonished at the
nipidtty of the shots, kept springing to bis right, holding up
his left arm and hand to protect hia head. Tbe foarthshot
t'Sfsed through his left wrist, into hi^ mouth and ont
tl)roii^h tbe back portion of bis cheek, carrying away some
of his teeth, and imbedding one in his tongue. After de-
ceased's fifth shot, defendant straigbtonod himself up from
'<ii crouching attitude which he had occupied during the
tiring, e.ttendcd his right arm at full length, and blow the
brains out of deceased, who stood facing death with an
tijjpty pistol in bis hand. As soon as tbe tragedy was thus
completed, defendant dropped hia pistol saying, we are both
dead men, and sank down into a chair. Whilst two other
'jiiNots went throagh hia clothes he was only wounded as
sbove described.
The evidence in the case was volnminons, and sometimes
confiictingas to minor details, but it is believed that the
ibovc report preaonta a fair view of tbe testimony, certainly
the view that was taken of it by tbe jury.
Tbe conrt charged the jury as follows :
r
»p
392 SUPREME COURT OF GEORGIA.
Cox vs. The State.
"Oentlemen of the Jui^ :
•*Tbe court will now deliver to you the law for your guidADce and
direction in reaching a verdict according to the evidence. In the be-
ginning, I carefully call your attention to the statement that the coart
neither desires nor intends to express or intimate any opinion toucbiag
the evidence or touching any alleged or contested fact io the case.
The court •# ill state certain legal propositions to you in the alternaiire
form, that is, both ways, and it will be for you to say in which direc-
tion, or in what direction the evidence points. Should you deem in
any expression dropping from the bench that you detect any leaniag
in the mind of the court one way or the other, know that you are mis-
taken. It is the duty of the court to deal With the law ; forth from
the conscience of the court the law goes to you. The facts you receive
alone from the evidence. You judge of both the law and facts, and
they lend you to the truth.
*'I will presently read and deliver to you certain sections of the
Code. They relate to the definition of crime, the question of inten
tion, and the law of homicide. I shall read these sections through to
the end, without stopping for explanation. After reading them the
court will make some further comment. These sections are couched
in language singularly terse, expressive and forcible. Every word is
pregnant with meaning, and it may be doubted whether any attempt
at explanation or comment would not rather obacare than brighten
the meaning, and if you find that the court does not comment or en-
large on all or all parts of these sectionB, the court desires you to
understand that such of them or such parts of them, if any, as are
applicable to the case, but not further specially noticed in the charge,
are thus omitted from further mention for the reason that the court
deems them sufficiently clear and plain as I now read and deliver them
to you.
*' Sections 4292, 4208, 4319. 4320, 4821, 4322, 4323, as amended by act
of 1878, 4324, 4325, 4327, 4330 to and including the words ' commit a
felony on either/ 4331, 4883,4334, 4385.
"If you find from the evidence that the prisoner at the bar did, in
the peace of the state, in this county, on the occasion, with the weapon
and in the manner described and set out in the indictment, wiUi malice
aforethought, either express or implied, unlawfully kill the deceased,
Robert A. Alston, and if the prisoner was then and there a person of
sound memory and discretion, the offense of murder would be made
out; otherwise the offense of murder would not be made out.
" A person would be presumed to intend the natural consequenceh
of his acts. A person would be presumed of sound memory and dis-
cretion unless the contrary appear.
(1. ) **(Lt two persons have a dispute about a matter of business, the law
would not sanction a deliberate, premeditated and li^^ational resort on
the part of either of them, or both of them, to deMi||^ weapons for the
SEPTEMBER TERM, 1879. 393
Coxtw. The State.
mere purpose of prosecuting or settling such dispute; and if pending
such difficulty between them they mutually agree to separate and pro-
cure arms and to again meet for the purpose of engaging in a fight
with deadly weapons, and if they do separate and each seeks and pro-
cures a deadly weapon, and they accordingly and by such mutual and
previous design again and intentionally meet to fight with such
weapons, and in a rencountt r thus brought on, if one of them kill
the other, th ^ hiw would not justify the slayer, no matter which of
them was right or which was wrong originally in such business dis-
pute, and no matter which of them made the first proposal so to arm
for such hostile purpose, und no matter which fired the first shot or
initiated the attack when the rencounter began; and it would be either
murder or manslaughter in the slayer, according to the evidence, under
the principles of law applicable thereto.)
(2.) **(lt would be unlawful for two persons to deliberately con-
spire, or agree together to procure deadly weapons and meet again to
fight therewith, and if in the heat of blood they do so agree, it would
be the duty of both of them and each of them to heed the voice of
reason and humanity if there was an interval sufficient for that voice
to be heard, and to reconsider the matter and decline such hostile
meeting, and if one of them docs so reconsider and decline such meeting
and the same be communicated to the other, it would bo the duty of
that other to acquiesce therein, and if that other refuse so to acquiesce
and persists in an original hostile purpose, and if pursuant thereto, he,
armed with a deadly weapon, seek his adversary with a deliberate in-
tention of bringing on such difficulty and of using such weapon
therein, notwithstanding the other's refusal, and if he does s^ 1)iing on
the coutest, and in such difficulty he slay his opponent with that
weapon, it would be murder in such slayer.)
(3 ) *'(If at the time of the rencounter the prisoner was armed with a
deadly weapon, and was the aggressor and the assailant, and if he by
his conduct made it necessary for the deceased to defend his own life,
if the prisoner manifestly intended or endeavored then and there to
commit a serious personal injury on the person of Alston amounting
to felony, then the deceased would be justified in defending himself,
and even in firing first if he could, and the prisoner could not plead
any danger, no matter how imminent the peril he may have been
placed in by such countervailing attack, for his justification. If the
prisoner did thus, in his own wrong, unlawfully bring about a neces-
sity for deceased to fire upon him, the principles of self-defense would
not justify the prisoner in meeting that necessity by killing the de-
ceased, but the law would attribute the killing to the original malice,
and such killing would be murder.)
** But if upon a sudden occasion two persons fall out and presently
fetch weapons and mutually willing and consenting, fight therewith,
and one of them slay the other in such sudden rencounter, then if the
894 SUPREME COURT OF GEORGIA.
CozM. The State.
slayer acted without any mixture of deliberation whatever but under
the influence of that sudden violent impul&e of ptission, supposed to
be irresistible, then his offense would be voluntary manslaughter only,
and not murder.
"Or if the prisoner did not intend originally, or had not entered
into any such purpose to fight with deadly weapons or to attack deceased
therewith, or even though having such purpose at the beginning, or
at any time, if he had in good faith abandoned such intention, and
was not seeking deceased for such purpose, and the parties were again
brought together without hostile design on the part' of prisoner, and
the quarrel unexpectedly to prisoner renewed, and, upon somo new
provocation, they suddenly draw weapons and mutually engage in a
fight thcrewiih, each consenting and willing so to draw and suddenly
fight, and each knowing that the other is so willing and consenting,
and if in a rencounter thus brought on, the prisoner slew deceased, it
would be voluntary manslaughter only, and not murder. But if pris-
oner did not act in the fatal crisis upon any sudden provocation, or
cause of defense, but from a previous and deliberate intention to bring
on a fight with deadly weapons, and amounting to malice as before
explained, and prisoner killed deceased under the same, then the law
would not thus grade the offense from murder down to manslaughter.
I have read and submitted to you the law of involuntary manslaughter
of both kinds, and you are authorized to consider and pass upon and
be guided by the principles there laid down, if applicable, and so far
as yuu find the same to be applicable under the evidence
(4. ) "(The law does not prescribe any particular duration of time in
which au^ntention unlawfully to take life or to do a criminal act re*
suiting in death shall subsist in the mind in order to constitute malice.
There must be deliberation in order to make express malice, that is a
succession in mental action— the unlawful intention — and then, follow-
ing after the formation of that intention, the execution or carrying out
of the sume. If there was time for deliberation, if there was an inter-
val between the assault or provocation given and the homicide, suffi-
cient for the voice of reason and humanity to be heard, under the cir-
cumstances, in the conscience of a reasonable man, then it would t)e
the duty of the prisoner to hear that voice; and if he had. and per-
sisted in, an unlawful purpose to kill, through or during such an in-
terval, there would be express malice; or, if no considerable provoca-
tion appear, and if all the circumstances of the killing show an aban-
doned and malignant heart, then malice would be implied. But if
there was not such sufficient interval, there could be no express malice.
If there was considerable provocation, or if all the circumstances do not
•how an abandoned and malignant heart, then malice could not be
implied. The existence or non-existence of malice is, like all other
i(uch matters, a question for the jury to be judged of and determined
by the evidence.
^^m
SEPTEMBER TERM, 1879. 395
(OX w. The State.
•• If the prisoner was not actuated by such fixed purpose to engage
in and bring on a fight with deadly weapons, as I before described, or
though previously having such purpose, if heliad abandoned it, and if
the prisoner was not the aggressor or the assailant, or if he in reality
made no attack on deceased, and yet the deceased made an attack on
him, the prisoner, with a deadly weapon, when there was no necessity
to do so, then the prisoner would be justified in defending himself,
even by taking the life of the deceased, and he would be guilty of no
offense, and must be acquitted. )
" At the hazard of repetition, the court extends or further explains
some of these princif^les."
(Tbe request to charge, made in writing by defendait's counsel, the
court altered and amended, and delivered as follows :)
" Firit. Every homicide is not unlawful, and. as before stated,
homicide U of three kinds, murder, manslaughter and justifiable
homicide.
" Second. There can be no murder without malice, express or im-
plied. One person may klM another against whom he entertains
malice and yet not be guilty of murder, and whenever the circum-
stances of the killing would not amount to murder, the proof even of
express malice would not make it a case of murder. It is in all cases
for the jury to say whether all the elements necessary to make out
guilt affirmatively appear in the evidence. If any of such essential
elements be wanting, either malice or any other, an acquittal or reduc-
tion in the grade of offense must follow. If all be preseui a convic-
tion would be the lawful result.
"Third. It would be justifiable homicide for one pcrsim to kill
another ' in self defense or in defense of his person against one who
manifestly intends or endeavors by violence or surprise to commit a
felony on his person.'
'•Fourth. To unlawfully discharge a loaded pistol at another within
Btrikiog distance, and especially w*ithin a few feet, wouid be a felony,
and that in this case, if the jury are satisfied from the evidence that
Alston fired on the prisoner when he was under no necessity to do
80 for his own defense, and continued to fire at him (prisoner). then he,
the piisoner, would have the right to return the fire, and to shoot and
kill Alston to save his own life.
" Fifth, If the jury believe from the evidence that Alston fired upon
Cox when it was unnecessary to do so for his, Alston's own defense,
and if the circumstances attending the firing by Alston were such as
to excite the fears of a reasonable man that the decease(i was mani-
festly intending to shoot Cox, and if Cox, acting under the influence of
those fears and not in a spirit of revenge, shot and killed Alston, it
would be justifiable homicide, and lu\ prisoner, ought to be acquitted.
But, as before stated, if the prisoner wrongfully provoked the difil-
culty, and wrongfally made it necessary for Alston to tire on him, and
•
396 SUPREME COURT OF GEORGIA.
If aay nece^ity prisoner may have been pliiced under to kill dcMaaed
was a innttcr of (prisoner's) own wrongful creulion, then tite prin-
ciplea of Belf-dcfenae aiinuld not jiiBtity prisoner.
" SiKtb. Sliould (he lioinicitle appear to be justiBable, tbe law d«-
clares (but the person indicted sball upon the trial be fuliy acquitted
and discUarged.
" The prisoner begins the trial with the presumption of innocence
In his favor, and tbl9 preaiimptlon remains with biin to the end or
antil overcome by prooF. Tbe burden of proof is on tbe alale to prove
every materiiil ailegiLtion tbroughoui iind to tbe end of tbe case, and
upoo ail diapuled quealiuua nud iaauea in it. In Criminal cuscs a
higher degree of ceTtuielj in the evidence is required than in civil cases.
In a criminiil case mere preponderance of evidence would not be suffl-
dent to carry conviction upon any contesied (act or question in issue.
Tbe evidence must lie sufflcleut to carry in tbe mind of tbe juror cod-
viction txiyoad all reasonable doubt. But a moral and reasonable cer-
tainty up (o Ibis s(andard would be sufllcienl. If (be preaumplions oF
innocence, and in favor of the prisoner, tic overcome by proof up to
this standard, then the coQcluaiona carried by such proof would pre-
vail over such presumption or presumptions.
"If upon tbe whole case or any essential clement necesshry to carry
the case or make out guilt against the prisoner, you have a reasonable
doubt, Ibc law requires tbut you give bim the benefit of that doubt and
acquit him or reduce tbe offense to some grade lower than murder, as
the nature of such doubt may require. The doubt here referred to is
not a fanciful duubt. such as the mind would huvu to strain at, but a
reaaouable doubt rising naturally in the rational mind; tbia would be
tbe doubt of the law ; nothing less would be.
" A writing reiativu to testimony alleged to have been given by tbe
witness, Saras, on a former occasion was sent down to you not as
original evidence, but only In connection with ibc testimony delivered
on tbe aland here, and you will nut look to that document as affording
any inherent evidence of the truth of ita own statements; but you look
to it only ao fur as (be evidence delivered orally here by Bams or other
witneaaea may bear on tbe question of whether that witness made any
such contradictory statcmcnta, and in determining the cSect of tbe
same if iberc be sucb contradiction. But under tbe rules of law, as
the wriiing itself doei not properly go out wiih you to your jury. room,
youchaigeyourmind with it and remember it along with the other
evidence in tbe case.
" It Would be tbv duty of the jury to adopt any ressonalile hypotbe-
sis that will exi/lnin and reconcile the (cstimony, so as not to impute
in(entional perjury to any witness. If in any particular or particulars
the (cstimony may not be (bus reconciled, you would give credence to
Ibat wbicb most commends your belief in its truth.
^ " If a witness swear that wbicli is false wilfully and knowingly, and
SEPTEMBER TERM, 1879. 397
Ooz t». Tli« State.
iatend'mgto speak that which is false.kaowiag it to be so, then hia tes-
Umoaj ought to be discarded altogether, unless, or ao far only, as cor-
roborated by others and credible evidence, or by circumstances.
*' TJie court does not say or intimate that any witness on cither side
has thus sworn falsely. All questions of conflict In the evidence and
of weighing and passing upon the evidence, each witness in the case,
the manner in which he testifies, the matter of his testimony, biua, pre-
judice, feeling, or the absence of these, are matters exclusively for the
jury to inquire and pass upon under the testimony. In the testimony
find the true facts and base your verdict on them.
(5.) *%A. witness may be impeached by disproving the facts testified
to by him, or by proof of contradictory statements previously made by
him as to matters relevant to his testimony and to the case. A
witneM impeached by either method may be sustained by proof of
general good character. The whole question whether any witness or
witnesses be impeached or sustained, and the effect of the same, are,
like all o'her questions of fact and of evidence, to be determined by
the jury. There is nothing in this case but the law and the evi-
dence. By these and these alone your verdict must be found. In
the sacred precincts of the court house and the jury-box impartial
justice must prevail. Take up tliis evidence, go through it all, fairly,
calmly, without fear, favor, affection, reward, or the hope thereof,
without bias or prejudice, with a mind open to the truth and willing
to do right, and in that evidence alone under the law find the truth, and
let your verdict be based on that truth only because it is the truth, and
because both your oath and your duty require you to do so.)
(0.) '(The prisoner makes his statement before you not under oith.
Such statement is not evidence to such extent as by itself would im-
peach the witnesses. If in any respect the statement conCict with the
evidence, the statement should yield to the evidence. You judge of it
in the light of reason, common sense, humanity and justice, consider-
ing the matter of such statement, the mupner of its delivery in all its
relations and in all hia relations to the case and to the evidence. Re-
minding you tliat you have sworn to render a true verdict accordinj; to
the evidence, the court distinctly tells you that the law vests you with
a wide discretion in relation to the statement in question, and it would
be your province to give the prisoner's statement just such weight, but
such only, as you think right, be it never so much or never so little.)
** I read to you that clause of the Code regulating the punishment
for murder as lately amended, and as it now stands in the law. Of
course, if you do not find the prisoner guilty of murder, >ou will have
no occasion to consider or pass upon the question of his punishment.
But if you, under the law and the evidence, find the prisoner guilty
of murder beyond any reasonable doubt, then it would be your prov-
ince and your duty to say whether the punishment shall be by death
or by confinement in the penitentiary for and during his natural life.
398 SUPREME COURT OF GEORGIA.
Cos 09. The State.
and the court will have no discretion in that matter after you have
passed upon it. If you find in tbe case circumstances of mitigation
not sufficient to bring the offense below murder and yet sufficient to
lead you to the conclusion that such perpetual imprisonment would be
an adequate punishment under the circumstances, and sufficient to
▼indicate the justice and sanction of the law, then you ought to make
such recommendation, and thereby spare his life. But if you find no
circumstances of mitigation, and further find it to be your duty to re-
fuse such recommendation, then the law would leave the defendant to
tbe penalty of death.
•• If you convict the prisoner of murder, and further find it your
duty to refuse such recommendation, then the form of your verdict
would be: * We. the jury, find the defendant guilty,* and that would
mean guilty of murder— the highest offense charged in the bill of in-
dictment, and the death penalty would follow. If you find the pris-
oner guilty of murder, and further find it your duty to fix upon the
tesser penalty, then the form of your verdict would be: * We, the jury,
find the prisoner guilty and recommend that he be punished by con-
finement in the penitentiary for life,' and thereupon the court would
give judgment according to that. If you find the prisoner not guilty
of murder or guilty of that offense not made out beyond all reason-
able doubt, you would acquit him of it, then you would pass
upon the question of voluntary manslaughter, and if you find the
prisoner guilty of that offense beyond all reasonable doubt, you
would say: *We, the jury, find the prisoner guilty of voluntary
manslaughter/ Or if, either upon the evidence or the want of evi-
dence, or upon a reasonable doubt, not guilty of manslaughter, and if
you find tho evidenre requires it, you would be authorized to convict
of involuntary manslaughter of cither kind, and you would so express
it in your verdict. If you find the prisoner not guilty, or guilt not
made out beyond all reasonable doubt, then you would say: ' We, the
jury, find the prisoner not guilty.' In either event let the verdict be
written on the bill of indictment, date it, sign it by your foreman, and
bring it into court."
The jury found the defendant guilty, and rccomnriended
that he be punished by iraprisonnient for life in the peni-
tentiary. He moved for a new trial on the following
grounds :
1. Because the court erred in overruling the written mo-
tion for a continuance.
2. Because the court erred in overruling the challenge to
the array of jurors.
8. Because the court erred in refusing to allow defendant's
L
SEPTEMBER TERM, 1879. 399
Cos vs. Tb« State.
connsel to prove by Albert Howpll, a juror put upon the
defendant by the state, that he, the said juror, had formed
and expressed an opinion, and still entertained a fixed opin-
ion as to the guilt of the defendant from having read a re-
port of the evidence taken before the coroner's inquest and
published in the Atlanta Constitution, a newspaper pub-
lished in the city of Atlanta, in said county, and other
articles published in said paper in relation to the shooting
of deceased by defendant, said juror having been put upon
the court by the defendant to be tried a^ to his competency,
said defendant being thus compelled to challenge said juror.
4. Because the court erred in refusing to allow defen-
dant's counsel to prove by D. R. Morris, a juror put upon
the defendant by the state, that he, from having read what
was published as the sworn evidence had upon the coroner's
inquest, in the Atlanta Constitution's, newspaper published
in said county, formed and expressed an opinion as to the
guilt of the defendant, and that he now entertained that
fixed opinion, and refused, upon the request of counsel for
the defendant, the court trying the competency of the juror,
to ask of the juror any other question touching his compe-
tency than those prescribed by the statute.
5. Because the court erred in allowing counsel for the
prosecution to ask Renfroe the question, '^ what was the
reason that Col. Alston told Peter to shut the door?"
6. Because the court erred in admitting the evidence of
Renfroe as to the conversation had with Alston immediately
before the homicide.
7. Because the court erred in admitting the declarations
of deceased to Nelme, as above reported.
8. Because the court erred in refusing to withdraw from
the jury the evidence of Woodward.
9. Because the court erred in admitting the conversation
between deceased and Murphy, and between deceased and
Sams, as testified to by Murphy.
10. Because the court erred in allowing, over the objec-
tion of defendant's counsel, the state to read in evidence
400 SUPREME COURT OF GEORGIA.
Cox m. The State.
what purported to be the evidence of M. W. Saras, a wit-
ness who had been sworn for the defendant, taken before
the coroner's inquest npon the body of the deceased, K. A.
Alston, the objection of defendant being that it was not
snfhciently shown that the said M. W. Sjims had sworn be-
fore the coroner as appeared from this written report of
his evidence, and that he could not be impeached by such a
written report of his evidence.
11 to 16. Because the court erred in instructing the jury
as set forth in divisions marked (I), (2), (3), (4), (5) and (6)
of the charge as above reported.
17. Because the verdict was contrary to law.
18. Because the verdict was contrary to the evidence, and
decidedly and strongly against the weight of the evidence,
and without sufficient evidence to support it.
The motion was overruled, and defendant excepted.
In certifying the bill of exceptions, the court commented
upon the grounds in substance as follows :
At the time the motion for continuance was presented
and argued, all of the prisoner's counsel of record were
present. His, the prisoner's, appearance was that of reason-
able health. The trial which ensued was protracted through
six or seven days, and the court-room greatly crowded.
The prisoner displayed activity when making his statement,
and at no time showed, so far as the court saw or knew,
manifestations of illness or fatigue. He occasionally, or
hift counsel for him, asked and obtained leave to xetire a
few miimtcs to a jury-room to apply a lotion or attend to
his hurt in the mouth. This was the only complaint made.
The witness. General J. B. Gordon, came into court at an
early day in the trial, and was sworn with other witnesses,
but not put on the stand. The court had these facts in
mind when exercising discretion, and ruling on the first
ground taken in the motion for new trial.
In connection with the challenge to the arnly, the de-
fendant's counsel produced and read to the court the order
of the presiding judge appointing James R. )Vylie a jury
com*^
SEPTEMBER TERM, 1879. 401
Cot VS. The State.
The jurors Howell and Morris answered all the statu-
tory questions so as to make them coinpetent, and were
put upon the prisoner. Tlie court permitted various ques-
tions to be asked them as to residence, who of kin to,
whether one of them had an interest in tlie ConMitution
newspaper, etc. But on objection made the court ruled
that the statutory questions were exhaustive as to any
matters covered by tliem, and declined to ask or permit any
other questions seeking further to sift the conscience of the
jurors to be asked them. There was no formal attack made
on either juror to prove their answers or either of them
untrue. This was disclaimed. The offer was to put them
respectively on the court as trier, and to ask, or have the
court ask, the questions stated in the 3d and 4th grounds.
As to the matter in the 6th ground he refers to the brief
of evidence for any needed correction as to the time, place,
and circumstances under which this conversation took
place.
As to the matter of the 7th ground, this was part of a
conversation, the otlier portion of which liad already been
given in by defendant.
The 8th ground is to be considered in the light of Wood-
ward's entire testimony.
As to the report of Sams' testimony before the coroner's
inquest, the document was not read at the time formally.
Parts of it were afterwards used and referred to in argu-
ment. Neither side made any request, or invoked any in-
struction to be given to the jury on the subject, but the
court did instruct them as set out in the general charge.
The writing itself was never delivered to the jury.
The court, of its own motion, charged in writing, which
was filed with the record and (he same made a part thereof,
and those grounds of the motion which relate to the charge
are to be taken and construed in the light of the same.
D. P. Hill & S»).^; Qartrbll & Wreoht; Ca^idler &
Thomson ; D. F. & W. R. Ha^mmond ; J. A. Billups ;
R. S. JsFFARiBs; W. R. HoD^sox, for plaintiff in error.
402 SUPREME COURT OF GEORGIA.
CoiH. TheSIMr.
B, H. Hill, Jr., eolicitor-general; Hopkins & Glknn; Pat-
BtCK Calhoun; Ddncan Twiggs; Sam. Hall; Hulsky &
McAfee ; Howard Van Epps, for the stntc,
Blkcklet, Justice.
1. The motion for a cootinaance was in writing, nnd a
copy of it is in the record. There were three grnunds, two
of which related to the absence of wiluessea. Only the
third was argncd and insisted on here, the other two being
abandoned. The matter of this third ground is fnlly eet
forth in the reporter's statement. There was no siiggestioa
ID the motion that at the time of suboiittin;}; it, or nt t)ie
time of entering upon the trial, tlie accused was nnalile to
confer with his connsci, or to undergo the kbor and excite-
ment of conducting his defense. If he Imd wanted a con-
tinnance because of his then condition, physical or mental,
he could have applied for it on that ground, and if he had
done 60, the conrt may have granted it. Certainly there
was uo abuse of discretion in not granting a continnance
npon a ground not presented in the applicalion. lUd it
been presented, we may be sore that the court wimld have
exercised a sound and just discretion concerning it, and not
ruled to trial a mau whose condition was not snch as to en-
able him to undergo the ordeal with ueedfnl strength, com-
posure and vigilance. Nay, more ; we may assume in favor
of the humanity of the presiding judge, that if he had been
aware, or even believed, that the accused was not in a fit
condition to be tried, he would, without any motion what-
ever, have declined to bring on the trial eo long as the un-
fitness lasted. The solo error complained of in the bill of
exceptions is, that the court erred in overruling the motion
for a new trial ; and when we look to the motion for a new
trial, we find in it no point touching the failure to continue,
except upon the refusal of the court to grant the continu-
ance on the motion for the same "submitted in writing."
So far as appears, there was no ruling whatever made below
on the then present fitness of the accused to be put on his
SEPTEMBER TERM, 1879. 403
Cox tn. The Statu.
^^^^^■-^»^— ■ ^^^^— I ■^^-^—■1 I—, ■■■■■■ ■■■ ^^^^^m^am
trial. The motion submitted in writing raised no such ques-
tion, but was confined to the absence of certain witnesses,
the existence and causes of excitement and prejudice in the
community, and the alleged previous inability of the accused,
ID consequence of his wounds, bis confinement in jail,
and his bodily and mental suffering, to make the necessary
corrections and meet and overcome the public excitement
and prejudice and to confer fully with his counsel in rela-
tion to his defense. Not a word did the motion say or sug-
gest as to his then inability or unfitness to do anything. It
said '' he has been unable," etc., not adding that he is still
unable, or anything equivalent thereto. In this condition of
the record, we are bound to presume that in so far as it was
the duty of the court to see that the accused was in a fit
state, bodily and mentally, to be tried for his life, that duty
was faithfully performed.
With regard to public excitement and prejudice, we see
nothing to take this case out of the general rule long since
laid down here authoritatively, to the effect that these have
ceased to be cause for a continuance. 24 Oa.y 297 ; 48 Ga,y
116 ; GO Ga.j 257. It seems quite immaterial that the means
of stirring up the excitement and prejudice were inflamma-
tory newspaper articles. Why should the condition of the
popular mind be treated as more dangerous to the accused
when wrought up against him by the press, than when in-
flamed to an equal degree by any other agency ? Is the
press, as such, to bo recognized as a power which can re-
tard the trial of persons accused of crime ? Newspapers
are free to publish what they please, so that they keep clear
of the law of libel, and if they succeed in impressing the
public mind unduly against an alleged criminal, are the
courts to wait for the storm they have raised to subside,
though the presiding judge should be convinced that there
is no real obstacle to obtaining an impartial jury and hav-
ing a fair trial? Surely it is unsound to make any distinc-
tion, as matter of law, between excitement produced by the
newspapers and that produced by other means. In a county
404 SUPREME COURT OF GEORGIA.
Cox 98 The State.
of forty thousand inhabitants, it is in a liigh degree im-
probable that an impartial jury cannot be had, one month
and a half after a homicide has been committed, to try the
perpetrator. And were a contingency of the kind to oecar,
the appropriate remedy for it would not be an ordinary con-
tinuance until the next terra of the court, but a change of
venue to another county.
Upon the subject of the prisoner's ability while in jail to
confer fully with his counsel and prepare for trial, notwith-
standing his injuries and his physical and mental suffering,
the court below, on the counter-showing made by the state,
was warranted in coming to the conclusion at wliich the
judge arrived. To overrule the motion for a continuance,
in so far as it rested on this branch of the showing, was strict
practice, and we should have been better sati.'^lied if the
judge had been more liberal ; but we must try his conduct
by the law, and not by our personal feelings, and so doing,
must remember that the application for 'i continuance was
addressed to his sound discretion, and that he was in a bet-
ter position than we are to discern the precise line upon
which his discretion ought, in a doubtful case, to move.
The question for us is not whether we should have exercised
his discretion as he exercised it, but whether he abused
it. Being of opinion that he did not, but that he only pur-
sued a strict practice instead of the more liberal practice
which we oui*selves, if in his place, would have preferred,
we, as a reviewing court, must decline to interfere. Code,
§3531; 1 Ga.y 213; 10 Id,, 86; 14 /J., 6; 26 lb., 276;
38 76., to I ; 4<) 76., 209 ; 47 lb., 598.
2. For the reasons indicated in the second iiote of the
syllabus the challenge of the accused to the array was
properly overruled.
3. When acting strictly in the capacity of trier, there is
no doubt that the presiding judge may decline to have the
juror further examined as to his competency, and may look
alone to the aliunde evidence that is adduced. Code, §4682;
9 Ga,, 121 ; 21 lb., 220, 227 ; 32 7 J., 672.
SEPTEMBER TERM, 1879. 405
Cox v». The State.
4. The witness, Woodward, was not certain that he heard
correctly wliat the accused said after buying the pistol, tut
he undertook to testify to the 8ul)8tance of the remark, and
he gave his understanding of what it was. His evidence
was not inference, but fact, and his doubt upon the distinct-
ness of his hearing did not render his testimony inadmissi-
ble, but only detracted from its force and value. He drew
upon his own mind, not for any conclusion which he had
arrived at from the words used, but for the sense and sub-
stance of those words as his ear reported them to his mind.
Trying his accuracy by other evidence which subsequently
came in, there is great probability that he was mistaken,
and that the observation really made was different from his
version of it ; but this was for the jury to deal with in
weighing the evidence as a whole, and not for the court in
ruling upon its admissibility,
5. The sole objection made to the written evidence of the
witness, Sams, as given at the coroner's inquest, and written
out from the stenographic notes, was that "it was not suf-
ficiently shown that the said (witnesj?) had sworn before the
coroner as appeared from this written report of his evi-
dence, and that he could not be impeached by such written
report of hip evidence." It was proved by the stenographic
reporter that Sams did swear before the coroner as he was
represented in the written report to have sworn, and Sams
was duly examined upon the various contradictory passages
before they were read to the jury to affect his credit. His
attention was properly called to all the alleged discrepan-
cies, and full opportunity was afforded him to explain. If
the report was correct, ap the reporter testified it was, we
Bee not why it could not be used to impeach him. The
argument made here against the admissibility of more
of the writing, or its contents, than the particular pass-
ages which embraced the discrepant matters, is not within
the scope of the objection which we have recited above,
and 18 thus irrelevant. The objection did not raise the ques-
tion of how much of the contents of the writing ought to
have been submitted to the jury-
406 SUPREME COURT OF GEORGIA.
Cox M. The Sute.
6, 7. Before proceeding to discuss the admissibility of
the declarations and conversations referred to in the 5th, 6th,
7th and Dthgroands of the motion for a new trial, it is nec-
essary to get a correct standpoint from which to consider
them in reference to the question of whether or not they
constituted a part of the res gestcBi To do this requires a
survey of the hostile enterprise which had its inception dur-
ing the private interview of the parties in the back room of
the barber-shop, and of the several steps which each party
took to advance or retard the collision which that enterprise
contemplated. That there was a hostile enterprise admits
of no doubt, and that it was of a criminal nature, involving
a concerted and premeditated rencounter with deadly weap-
ons, is equally clear. In his statement made to the jury on
the trial, the accused gave this account of it, as a part of his
recital of what occurred in the back room of the barber-
shop: "Then I asked him, *Come, Colonel, let us sit down
here and settle up this matter between us and close up our
businee^s now.' He said no, but said, ^Will yon go and arm
yourself and fight me?' and I said 'yes, I would fight him
any way lie wanted to, but let us settle our business first.'
He said, 'No, you have promised to fight me,' and I said *if
that was necessary I would fight him in any way he chose,
and cut it out or shoot it out.' He said, 'Then go and arm
yourself and I will do the same.' Colonel
Alston said, 'Yon have agreed to meet me here and figat
me; now go;' and as he got to the door, he took out his
watch, and with it in his hand he said, 'Meet me here in
three minutes.' He went out; and I went out, and into
Pause's saloon, thinking, as it was a bar-room, and knowing
that they usually kept a pistol about such places, that I
would get one there." This bar-room was two doors from
the barber-shop, and there, according to the evidence of
his own witnesses, he inquired for a pistol of three several
persons; one of whom he took aside, and on being asked
by him what he wanted with a pistol, ho replied that he had
to meet a man in two minutes. Being asked who it was,
SEPTEMBER TERM, 1879
lieanswered, "Bob." His friend saying, "You are notgoing
to fi^lit Bob Alston?" his reply was, "Get me a pistol, you
are talkinjj to a dead man." Failing to procure any pistol
at tli<! bar-room, he went to a gun-store, and there bonght
one and bad it loaded. Having done this, he returned to
the bar-room, and was heard to say to Hodgson, an old
friend of his. "Now I am ready, let's go." He and Hodgson
repaired together to the barber-sbo[) and entered the back
room, the same in which the hostile meeting had been
agreed upon and in which it was to take place. A conversa-
tiun at once ensued, which Hodgson details thus: "He
aaid, 'I want you to stay right licre.' 1 asked him what for,
and he eaid he had a difliculty with Alston and he wanted
inc to stay there and see it. lB£ked him for some explana-
tions, and he said he had no explanations tu make, and he
wanted me to stay and I would see: and I said, 'Tliat is
very strange, that you would bring a friend of yourself into
a place to see a difficulty unci never give him any explana-
tions about it)' and he paid for me to stay there and I would
see — that Alston would be there after awhile." At this
atajte of the conversation, Sams, another witness for the de-
fense, entered, and he too tried to find out what the trouble
was, but apparently without success so far as Hodgson could
onderstand. Hodgson proceeds: "I only heard that there
was to he some settlement made, but not what it wis. I
learned from this con vcisaliou that Alston had been in there
before, but I could not tell what the difficulty was about.
I tindcrstood from him that Alston had told him. Cox, to
meet him there in two miuutes, he might have said ton, and
he palled ont his watch and said, 'It's time now.' I saw he
Whs excited, and I said, 'He will come, anyhow; that he was
a man of his word, and if he said ho would come he would
<lo it.' I tried to get him to wait for him, say, ten minutes,
and be noted the time, and told Sams to go and Hnd Alston
and teil him that he was there waiting for him according to
agreement." Sams and Hodgson withdrew together, the
former going out to bear the messago to Alston, and the
PF
SUPREME COURT OF GEORGIA.
latter Btoppiiift id the front room of the barber-Bbop. Tbe
accuecd reinaiDod in the back room. PreeeDtly, Neims,
(another of hia witneeaee) principal keeper of the peniten-
tiary, entered the front room from the street, and called for
an interview, which the accDBed declined, Eayinf;; he wua
"waiting for h friend." After NeImB left, bams rcturnedi
and reported Alston as having said he had reconsidered the
matter and would not meet the accnecd, and that for the
latter to attend to his business and he, Alston, would attead
ta his. On hearing this report, the accused departed toscek
for Alston, aayiug something to the effect that it was alt
right, but it did not suit him, and that he would go and see
him. He went directly to the capitol, looked in at the treas-
urer's otGce, was understood to inqaire there for Murphy,
who was a clerk in that office, went np-stairs to the office of
Nelms, inquired theie for Murphy or Howard, most proba-
bly for Howard, seated himself for a very brief time, then
rose and hurriedly withdrew, and descended to the treasur-
er's office. There he found Alston, who had come in, for
the last time, whilst theaccased was upstairs. He accosted
Alston with this language: "Yon promised to meet me
down the street and settle this thing, why didn't yon do itr
Alston answering that he had reconsidered the matter and
did not want to have any difficulty, the accused rejoined, "I
will brand yon." Further conversation ensued, ehots were
exchanged, each party using the pistol which he had pro-
cured for the appointed meeting at the barber-shop. Alston
was killed and the accused severely wounded. On the ele-
ment of time, the evidence iudicates that the homicide took
place within forty-tive or fifty minutes after tbe agreement
to fight was entered into; there is scarcely a doubt that it
was within an hour, and it is not very improbable that half
an hour would cover the whole of the interval. The build-
ing in which the fight took place, and that in which jt wat
to take place by appointment, are both upon Marietta Street,
and are only about 150 or 300 yards apart.
Having, in the light of the evidence, traced the aocnsed
from the beginning to the ending of theoritninal enterpriae,
SEPTEMBER TERM, 1879. 409
Ci>z vs. The SUte.
let ns follow the deceased in the same way. After leaving
the barber-shop ho first appeared at the office of Kelms, and
endeavored to borrow a pistol. There the conversation oc-
curred to which Nelms testified, and the admission of which
in evidence is complained of in the 7th ground of the mo-
tion for a new trial. From there (Nelms soon following)
he went d^wn stairs into the treasurer's office, where he
met with Howard and Mnrphy, and where Renfroe, the
treasurer, on his return from dinner, found him. Here he
procured a pistol, and here he received, through Sams, the
message which the accused sent from the barber-shop, and
made his reply to it. A conversation in which Howard,
Murphy and deceased participated resulted in shaping this
reply, and in communicating it to Sams for oral repetition
to the accused. It is this conversation as testified to by
Murphy that is objected to in the 9th ground of the motion
for a new trial. From the treasurer's office he went across
Marietta street to Berron's on Forsyth street, and there met
and conversed with Governor Colquitt. Whilst this conver-
sation was in progress, the accused passed up Marietta street
on his way from the barber-shop to the capitol. Separating
from Governor Colquitt, the deceased went into Berron's,
partook, during a stay of two or three minutes, of a sh'ght
lunch, and then returned to the treasurer's office and
sat down. A brief conversation between him and Ren-
froe ensned, and this is the matter of complaint in the
6th ground of the motion for new trial. A step was heard
approaching, and Peter McMichael, who was in the room,
announced that it was Cox, and deceased ordered McMichael
to fasten the door. These remarks, one made by McMi-
chael, the other by deceased, and the question to the wit-
ness which drew them out on the stand, form the subject of
the 5th ground of the motion for a new trial. The ac-
cused entered through the door before McMichael could
close it, and when he entered, the deceased rose from his
chair, and the final conversation between them began. The
shooting followed and hostilities were at an end. The
space of time extending from the arrival of deceased at the
410 SUPREME COURT OF GEORGIA.
Cox tw. The State
oflSce of Nelms and the commission of the homicide, was
about twenty-three minutes. His stay at the office of
Nelms was only two or three minutes, and from the time
he left there until the firing began was about twenty min-
utes.
The difficulty of formulating a description of the re9
gestcB which will serve for all cases, seems insurmountable.
To make the attempt is something like trying to execute a
portrait which shall enable the possessor to recognize every
member of a very numerous family. Eschewing anything
so impracticable, and letting the present case sit for its own
individual likeness, its res gestce may be sketched in general
language as follows: (1.) Where two persons consent to
fight with deadly weapons, and by agreement separate to
arm themselves, both intending to return presently and be-
gin the combat, and they do in fact arm themselves and
meet, though not at the place appointed, but near it^ in the
same city and on the same street, and only a little later than
the time contemplated, and actually fight with the weapons
thus prepared, and one of them is slain by the other, the res
gesUz of the transaction comprehend all pertinent acts and
declarations of the parties (either or both) which take place
in the interval between the agreement to fight and the con-
summation of the homicide such interval being very brief.
(2.) Acts are pertinent as a part of the res gestce if they are
done pending the hostile enterprise, and if they bear upon
it, are performed whilst it is in continuous progress to its
catastrophe, and are of a nature to promote or obstruct, ad-
vance or retard it, or to evince essential motive or purpose
in reference to it ; and declarations are pertinent if they
are uttered contemporaneously with pertinent acts, and
serve to account for, qualify, or explain them, and are appa-
rently natural and spontaneous. See the works on evi-
dence, and the cases they cite. Also the cases cited' in
Hopkin's Penal Laws, §§527, 528, 530. Code, §§3771^
8773.*
^iocc thie ca<e was decided, uteful art idee toaching declaratlona as a part of tlie
tm g^^a tia^o appeared in 81 Alb. Law Journal, 431, 504 ; 2i id., 4; 14 Americ&n Lnw
r.,817; 16/6., 1,71.
SEPTEMBER TERM, 1879. 411
Cox vs. The iftate.
The conversation with Nelnis (7th ground of the motion
for a new trial) was had contemporaneously with the effort
of deceased to borrow a pistol. It opened with his appli.
•cation for a pistol, and the application was repeated whilst
the conversation was in progress. He was on an expedition
to arm himself — on a journey, as it were, after a pistol —
■and he explained the motive and occasion of his being out
on snch business. Be it remembered, too, that it was the
accused, and not the state, that brought np this part of his
-conduct in evidence. Nelms was a witness for the defense,
and on the direct examination he testified to the act and to
a part of the declarations which accompanied it. The
state but proceeded, on the cross-examination, to draw out
the balance of the same conversation. So clearly was the
evidence admissible for the latter reason, as will be seen
nnder the next head of this opinion, that its relation to the
res geatcR is utterly immaterial. Possibly, if it stood on
that relation alone, so much of it as consisted of mere nar-
rative or recital ought to be held incompetent, were that
portion objected to separately and upon that ground.
In the order of time, the next conversation complained
of is that to which Murphy testified (9th ground of the
motion for a new trial). Though Murphy was a witness
for the state, he was examined late in the trial, and, as will
be seen hereafter, this conversation had already been touched
«pon by one of the prisoner's witnesses, Sams, and by two
other witnesses for the state, Renfroo and Howard. It took
place during the interview between Sams and the deceased
in the treasurer's office, about twenty minutes before the
homicide, at which interview the deceased received and
answered the message which the accused had sent to him
through Sams. Most certainly this exchange of messages
was an important event in the occurrences of the day, and
the whole of the conversation repeated by Murphy bore
directly on the transaction then immediately in hand. A
part of it went to the very shaping of the answer which
Sams was directed to bear to the accused, and to the ingpi-
V 64-25
412 SUPREME COURT OF GEORGIA.
/*
Cox v«. The Sute.
ration of the pacific spirit by which the aDswer was per-
vaded.
The matter embraced in the 6th ground of the motion
for a new trial followed immediately upon the return of
the deceased from Berron's and his seating himself in the
treasurer's office, and was succeeded immediately by the
matter set forth in the 5th ground. The evidence com-
plained of in these two grounds^ when thrown together,
reads thus : " He (Alston) stated to me, ' This is an awful
thing to have a man hounding you in this way.' I asked
him, ' Did you not meet Cox V He said, * No, he has gone
up stairs hunting me ' — and then it was that Peter made
the remark that Cox was coming down stairs. Peter said,
*CJ. Alston, Cox is coining down the steps now;' and
Alston said, ' Go and fasten that door ' — ^and Peter went ta
do so, and met Cox there, and Cox passed him and came
into the room." Let it be borne in mind that it was from
this very office that the deceased had sent his answer to the
message of the accused received through Sams ; that after
receiving that answer the accused had set out from the
barber-shop to seek him ; that it was to this office that he
first went on reaching the capital ; that the deceased, while
at Berron's in conversation with Governor Colquitt, had
seen him on his way to the building, and that at the time
the deceased returned from Berron's, he was in fact up-
stairs in the building, and it will be plain that neither of
these parties had passed wholly out of the res gesUe of their
pending difficulty. Both were still armed with the pre-
pared weapons, and both may have desired and intended to
use them. The return of deceased to the treasurer's office,
and there stopping as if to remain, were acts of undoubted
pertinency, and the state of mind in which they were per-
formed— the motive and purpose which attended them —
are of the utmost importance. If he went there to put
himself in the way of the accused and bring on a collision,
and if the accused went with a like object, it was essentially
the meeting which bad been pre-conoerted in the barber-
SEPTEMBER TERM, 1879.
shop, and the deceaeed had either never fiill^ abandooed
the boetile echeme, or had abandoDed it bat temporarily
and then retamed to it. If, on tbe othor band, he went to
the office perplexed and undecided — doDbtfal, for the time,
what conree to parsue, and hoping, witbont seeming to-
retire, to have opportonit; for further reflection, and per-
haps to take couRBel of a. friend (for be had listened there-
to coansel a few minutes before), hia return was well nighi
innocent, and not inconsistent with tbe change of tnind'
which he bad professed, and which be afterwards asserted
in answering tbe first question which tbe accused so sharplj
propounded in tlie fatal interview. His exclamation to the
witness, Kenfroe, on comiug in and sitting down, " This is
an awful thing to have a man hounding you in tins way,"
indicates mental torture of a bitterly regretful kind, and if
he really felt the agony which his language would suggest,
he was deprecating danger rather than desiring to encoanter
it. His answer to the question, "Did you not meet Cox?"
namely, " No ; he has gone up stairs hunting me," is to be
looked at in its relation botJi to the exclamation which he
had just utterL-(l niu\ to the orderwbich he afterwards gave
to fasten the iloor. Instantly, upon being told that Cox
was coming, he ordered the door which was between them
to be fastened. Takin», collectively, bis three utterances
they tend strungly to show tbe state of mind in which
he was. They signify that he believed Cox was searching
for him with a hostile intent; and that belief, most prob-
ably, induced the order to fasten tbe door. Under the
circumstances, tlie order was equivalent to an attempt by
the deceased himself to fasten the door, and if he bad made
the attempt, can iticre be a doubt that the preceding observ-
ations would have «ast light on bis motive for the action !
In the same way, tlify cast light on his motive for giving
the order. The entire conversation is tbns within the atmos-
phere of tbe rea ^etUc. Considering that the deceased had r«-
tnmed to the treasurer's office knowing that tbe accused was in
the bnilding, and that both were still armed, tbe return was
414 SUPREME COURT OF GEORGIA.
Coz M. Tbe Stale
an ambif^nons act. with rather more of a hoetile than n{ a
pacilic look. His remaining there waa also ambtguoas ; it
might mean war or it might mean peace. What he eaid
and did in the brief interval between hie retorn and the
entry of Cox, tended to explain hie presence on what proved
to be the scene of the rencounter, and to ehow whether he was
there for action or inaction — whether to meet his adrersarj
or to avoid him. It was competent evidence. The question
hy which some of it was drawn oat waa not in the best
form, but the court gave the witness to understand that his
answer was to be restricted to what he saw and hoard, and
it was restricted according!;. The witness simply detailed
the faotfi^offering no opinion or conclusion of his own.
9. Returning to tlie conversation proved by Nelms, {7th
ground of the motion for a new trial) the true ground upon
which the admissibility of the otherwise doubtful matters of
that conversation standf, ia that they constituted a part of
the same conversation into which the witneee entered on his
direct examination by the accused, and were drawn out on
cross-examination. Upon the direct examination the wit-
ness testified : " It waa probaby three o'clock in the day that
Col. Alston came in and asked me for a pistol, and I said
mine was at home shot ont, and Tasked him what he wanted
with it, and he said he had liked to have had a difficulty,
and I eaid. come in and tell me about it, and he came in
and sat down. I asked him who it was with, and he said it
was with Ed. Cox, and told me about it. " In the cross-ex-
amination, the witness was directed to state all the conver-
sation, and he proceeded throngh it from wliere ho had left
off. Not to look farther for authority, this waa clearly proper
nnder several decisions of this court. 10 Ga., 145 (text of
opinion ; 12 lb. 506 ; 22 Jb. 40 ; 26 lb. 173.
Furthermore, by turning back to the reporter's statement
it will he seen that a very similar conversation, in so far as
it embr&ced recitals or narrative by the deceased, waa put in
evidence by the accused in the testimony of Governor Col-
quitt. The etato also afterwards, and without any objec-
SEPTEMBER TERM, 1879. 415
Coz 98. The State.
tion, 80 far as appears, proved a conversation between the
deceased and Howard, detailed in evidence bj Howard as
follows: " He said that Cox had taken him into a room and
told him if he did not rescind tlie trade he would kill him.
I said, he certainly did not say that. He said he did, and
he let me oat and told mc to heel myself and come back in
ten minutes. He said he thought he ought to take a double-
barreled shot gun, load it with slugs and go and kill him."
Were the evidence of Nelms, so far as objected to, elimina-
ted as illegal (but as above said, it was entirely legal), a new
trial would not necessarily follow, much the same sort of
matter being before the jury through these other two wit-
nesses.
Adverting again to the 9th ground of the motion for a
new trial (Murphy's evidence), Howard was examined be-
fore Murphy, and testified without objection thus : " I took
Mr. Murphy aside and told him let us stop this, and we per-
suaded Alston to stay in that part of town, and he did so,
though he did not like to be bullied that way. Then directly
he said, 'Here is a man who has come with a message from
Cox for me to come down there and settle it like a man ;'
and I 8aid to the man, ' did he send that message ?* and he
said, 'yes, and I am sorry to bring it.' That was Mr. Sams,
and I said to him, 'you go and tell Cox to stop this and wait ;
I will be down there directly and give him some advice, and
he will thank me for it the balance of his life.' And Alston
said, ' Go and tell him I have reconsidered the matter ^nd
will not come — that I don't want to kill him and don't want
him to kill me.'" Before Howard testified, the accused
had proved by Sams a part of what was said at this inter-
view ; and, first of all, Renfroe had gone into it, the accused
it seems objecting, but not carrying forward the objection
into the motion for a new trial. If Murphy's evidence was
doubtful or even inadmissible as a part of the res geatce (but
it was neither), it would not, considering what was already
before the jury when it came in, and remained before them,
be sufficiently material to require a new trial. In substance
■
416 SUPREME COURT OF GEORGIA.
Cox «f. The SUte.
it was but little more than Howard had testified without
objection; and at no time was there any motion to withdraw
this testimony of Howard. However, the correctness of
classifying Murphy's evidence with the res gesta, as we
have done above, is indnbitable.
10. 11. 12. 13. 14. As the entire charge of the court is
set out in the report, it can be stndied by every reader for
himself, and to remark upon it fnrther than has been done
in the head-notes would be superfluous. It is a very able
and admirable charge.
On both sides the case was argued before us with unusual
thoroughness and remarkable ability. The result of the ar-
gument and of a careful examination of the record, has been
to satis/y a majority of this court that there was no error in
overruling the motion for a new trial.
Judgment affirmed.
Jackson, Justice, concurring.
The exhaustive opinion of my able colleague, who an-
nounced the judgment of the majority of the court, leaves
me nothing to say. Complying with the law, however,
which requires me to state my reasons for concurring in the
judgment, I wish to say that those reasons are to be found
at length in the opinion of my colleague, and to add that on
the point in which the venerable Chief Justice differs from
us m'y views very briefly are these:
1. While as a circuit judge presiding in this case, I might
have ruled differently on the motion for a continuance* yet
I cannot say that the court abused his discretion in the rul-
ing he made. He had the defendant before him and saw
his condition; he could judge of all the surroundings; he
heard the evidence pro and con ; in the light of all the facts,
he made his ruling, and I cannot say that he erred.
2. The meaning of res gcsta is the thing carried on. To
show the thing carried on, its beginning is as essential as its
ending. An enterprise is carried on by acts and words. In-
SEPTEMBEK TERM, 1879 417
Cox V9. The SUte.
^eed, whenever the internal operations of the mind are in-
volved, words become verbal acts, and are admissible upon
the same gronnd as acts. This thing, this enterprise was
begnn in the barber-shop; it was carried on all through the
interval before the final meeting ; it was carried on in that
^final meeting; it was carried on in the arming of each and
what each then said; it was carried on in each shot that was
fired; it was carried on nntil^ Alston lay weltering in his
blood. Every act, every word, from the beginning to the
•end, which carried on the thing, the enterprise, formed a
part of the res gesta. The intention of both parcies was a
leading qnestion in the case. The state of their minds was
involved. That state appeared by acts and by wordsj" which
took place while the difficulty was in progress; and the ver-
bal acts of the parlies were admissible like their other acts.
But even if this view should not be conclusive — if as well
the plain meaning of res gesta — the transaction — the thing
as carried on from inception to conclusion — from the agree-
ment to fight to its close in the homicide — ^as the well under-
stood rules of law governing the introduction of testimony
in respect to res gesta^ be not applicable to all this transac-
tion as developed by this evidence — then it will be seen that
the defense either opened the door and entered on the in-
vestigation which admitted the other side also to go in, or
by their own examination of their own witnesses proved
substantially the same occurreoces which were but amplified
or more fully explained by the state.
Not only as res gestWj but on the principles last mention-
ed, all the testimony was, in my judgment, admissible.
The entire charge is fair and legal — the evidence]sustaing
the verdict — ^and my sense of duty demands that I affirm
it. Most gladly would I restore the living to freedom and
family — the dead to life and family, if I could ; but these I
•cannot do.
It remains that I administer the law impartially as I un-
derstand it, and that leads me clearly to the conclusion that
the defendant has had a fair trial— that he has been legally
oonvieted, and that the judgment should stand.
418 SUPREME COURT OF GEORGIA
Cox ve. The estate.
Warner, Chief Justice, dissenting.
Whilst public excitement alone would not have been suf-
ficient to authorize the continuance of the case, still, when
that public excitement is aggravated bj inflammatory news-
paper publications calculated to prejudice the public mind
against the defendant, as set forth in the record, coupled
with the fact of the defendant's physical condition result-
ing from wounds received in the then recent difficiilly, as
established by his attending physician, and not denied, to-
wit : having received a pistol-shot wound in his month,
knocking out three upper jaw teeth and four lower jaw
teeth, and indenting one of his teeth in his tongue, and had
another pistol shot wound in his left hand and wrist ;
his tongue so lacerated and swollen that the saliva was
constantly oozing from his mouth, and in the opinion of
the doctor he was unable to confer with his counsel fully
and prepare his case for trial. By the constitution of the
state the defendant was entitled to a trial by an impartial
jury, and was entitled to defend his own case in the court
in person, by attorney, or both. From the evidence in the
record it is manifestly apparent that the defendant was not
in a condition to exercise his constitutional right to defend
his own case, and by forcing him to trial in that condition
deprived him of that right, for it was hie undoubted consti-
tutional right to defend his own case in person, by attorney,,
or both. The spirit of the constitution, as well as the ends
of justice, required a continuance of the case.
In my judgment the court erred in admitting the declara-
tions of Alston, the deceased, to Renfroe and Nelms, as
contained in the 6th and 7th grounds of the motion for a
new trial, in so far as the same related to the acts and say-
ings of the defendant, in his absence, said grounds being as
follows :
6th. Because the court erred in allowing J. W. Kenfroe,
a witness for the prosecution, in answer to questions by the
state, and over objection of defendant's counsel, to testify
to a conversation had with the deceased from five to ten
SEPTEMBER TERM, 1879. 419
Cox vs. The Slate.
rainntee before the ditficnlty, ending in the death of Alston,
comincneed, and not in the hearing of the defendant, a&
follows: 'He (Alston) stated to me, 'This is an awful thing
to have a man hounding jou in this way.' ' I asked him
did you not meet Cox?" ''He said *No, he is gone up-
stairs hunting me.' "
7th. Because the court erred in admitting in evidence, over
the objection of defendant's counsel, a conversation between
J. W. Nelms and the deceased, which occurred twenty
minntes before the killing, in a different part of the build-
ing and in the absence of Cox, as follows: "Alston told me
he had like to have had a difficulty and wanted a pistol. I
told him to come and sit down and tell me about it. I
asked him who he was about to have a difficulty with ; he
said with Cox. Said he 'Nelms, he carried me in to take a
drink with him and I would not drink with him, and took
this cigar (had a cigar in his hand) and then he took me into
a back room of a barber-shop and shut the door and said,
* Bob, I want to see that power of attorney you have to sell
Gordon's interest.' And I said I would not show it under
•
coaipnlsion, and Cox said, 'I am going to see it before you
leave this room.' And that ho (Alston) said, *aint you a nice
great big rascal here with your knife when I have not got
a piece of steel on me, to try and force me to terms.' And
he said, 'go and arm yourself and I will wait for you, and,
he said he is waiting for me now ; and he asked me again
for a pistol, and I said my pistol was at home."
The illegal part of Kenfroe's testimony was in proving
by Alston's mere declaration " that the defendant had gone
up-stairs hunting him." The defendant had a perfect right
to go up-stairs in the capitol building, and there is not a
particle of evidence in the record, either by word or act on
the part of the defendant himself, going to show that he
had gone up-stairs hunting Alston, and surely he ought to
he judged by, and held responsible for, his own acts and
declarations^ and not by the acts and declarations of other
people made behind his back, the more especially as in this
420 SUPREME COURT OF GEORGIA.
Cozvf ThcSUte.
asLse Alston was not in the capitol-bnilding when the de-
fendant entered it, bnt was standing at Berron's in foil
view of the defendant as he passed along the street, going
into the capitol-building where it was said he was hunting
him. Is the law so unreasonable as to make one man re-
sponsible for what another man may say he is doing, or go-
ing to do, Vehind his back, when he has no opportunity to
deny or contradict the statement ! Such has not heretofore
been my understanding of it. The hunting of the deceased
by the defendant was a most damaging fact against him on
his trial, and how was that damaging fact proved i It was
proved by the mere declaration of the deceased to Renf roe
behind his back when he had no opportunity to deny or
contradict it ; and the same remarks are applicable to the
declarations made by the deceased to Nelms in regard to
the acts and sayings of the defendant at the barber-shop.
But it is said this evidence was admissible as res gesta.
What is res gesta as defined by the law of this state?
^' Declarations accompanying an act, or so nearly connected
therewith in time as to be free from all suspicion of device
or afterthought, are admissible in evidence as part of the'
resgestcB^'^ Code, §3773. The declarations of Alston when
he applied to Nelms for his pistol would be admissible in
his favor in explanation of that act, and perhaps his decla-
rations to Rcnfroe might be admissible in his favor in ex-
planation of his own acts and conduct at the time as part of
the res gesUe^ bnt how Cox, the defendant, can be made re-
sponsible by Alston's declarations made to Etenfroe and
N^elms behind his back, and be used in evidence to inju-
riously affect the defendant as part of the res gesUe accom-
panying any act of hisj or connected therewith when, the
declarations were made, is more than I can understand. In
my judgment it was a total misapplication of the doctrine
of res gesta to admit the evidence complained of in the 6th
and 7th grounds of the motion as against the defendant.
The court charged the jury amongst other things : *^ It
would be unlawful for two persons to deliberately conspire
SEPTEMBER TERM, 1879. 421
Cox vs. The State.
or agree together to procure deadly weapons and Dieet
again to fight therewith, and if in the heat of blood they do
flo agree, it would be the duty of both of them and each of
them to heed the voice of reason and humanity if there was
an interval sufficient for that voice to be heard, and to re-
consider the matter and decline such hostile meeting, and if
one of them does so reconsider and decline such meeting,
and the same be communicated to the other, it would be the
duty of that other to acquiesce therein ; and if tliat other
refuse so to acquiesce and persists in an original hostile pur-
pose, and if, pursuant thereto, he, armed with a deadly
weapon, seek his adversary with a deliberate intention of
bringing on such difficulty and of using such weapon
therein, notwitlistanding the other's refusal, and if he does
so bring on the contest, and in such difficulty he slay his op-
ponent with that weapon, it would be murder in such
slayer."
This charge of the court was error in view of the ev-
idence in the record, inasmuch as it did not present the
defendant's theory of his defense for the consideration of
the jury. The evidence shows that the agreement to meet
and fight at the barber-shop had been abandoned. The de-
ceased had however procured one of the best self-cocking
pistols in the city, and while standing at Berrons' talking
with Governor Colquitt, saw the defendant go into the cap-
itol-building, and said that he did not know but that it was
his duty to his family to take a double-barreled shot-gun and
shoot him when he saw him; said he had a pistol then.
Shortly thereafter the deceased went into the capitol-building
where he had just seen Cox, the defendant, go, and went
into the treasurer's office where the difficulty occurred —
Alston firing the first shot, having Nelms between him and
defendant at the time. Although the deceased had sent
the defendant word that he would not meet and fight him
at the barber-ahop, but whether he was willing to meet and
fight the defendant in the treasurer's office, and was seek-
ing him for that purpose where his friend Murphy, who had
422 SUPREME COURT OF GEORGIA.
Gux vs. Tbe State.
furnished him with the pistol, and his other friends were,
depended upon the acts and conduct of the deceased as dis-
closed by the evidence. Tlie defendant's theory from this
evidence was, that although the deceased had declined to
meet and fight the defendant at the barber-shop, still he was
willing to meet and fight him in the treasurer" ofiSce where
his friends were, and was seeking Cox with a hostile intent
for that purpose ; that being a lawyer as the evidence shows,
his declaration to Renf roe that " this was an awful thing to
have a man hounding you in this way; he is gone up stairs
hunting me," was made so as to justify himself in case he
should meet Cox and should kill him in the rencounter ; that
he was apparently seeking Cox by following him into the cap-
itol-building where he had just seen him go. Whether this
theory was true or not, the defendant was entitled to have it
submitted to the jury for their consideration under the evi-
dence in the case. The deceased evidently was not endeavor-
ing to avoid Cox when he followed him into the same build-
ing he had just before seen him enter, instead of getting his
dinner as Governor Colquitt advised him to do. It is quite
certain that if Alston had not followed Cox into the capitol-
building, into which had ju?t before seen him enter, armed
with his self-cocking pistol, the fatal difiSculty in the treas*
nrer's office would not have occurred. What was Alston's
intention in following Cox into the capitoUbuilding just
after he had seen him enter it, might have been inferred by
the jury from Governor Colquitt's evidence, under a proper
charge of the court in relation to the defendant's theory of
the case — that evidence is, that Alston said a very short
time before the parties met in the treasurer's office, that he
did not know but it was his duty to his family to take a
double-b irreled shot-gun and shoot him (Cox) when he
saw him. This declaration of the deceased clearly shows
what wa^ thj stat3 of his feelings toward the defendant at
the time and in a few minutes thereafter. When he did next
898 him it was in the treasurer's office in the capitol-bailding,
and in the rencounter which took place there between the
SEPTEMBER TERM, 1879. 423
DeGive vs. Seltoer.
parties, the deceased fired the first shut. This ia io substance
the evidence in support of tlie theory of the defense — his
side of the case— which he was entitled to have had snbmitted
to the jury in the charge of the court. The defendant may
or may not be guilty, but whether he is or not, he was enti-
tled to a fair, impartial trial as provided by the constitution
and laws of his country ; and not believing, according to my
beet jndraent, that he has had such a trial, there is no power
on earth that can extort from me as a judicial officer a judg-
ment affirming his conviction.
DkGive v8. Srltzeb.
The obBtruction of any part of a twenty-foot alley dedicated to the use
of the grantees of the lots adjoining the said alley by a common
grantor, who divided the block lying between four public streets
by said alley for the convenience of all the grantees, by the erection
of two privies thereon projecting two feet and four inches into the
alley, and each six feet wide, is a nuisance; and a court of equity,
at the instance of one of said grantees, the windows of some of the
bed rooms of whose private residence overlook said alley, will re-
strain another grantee from the erection of said privies upon the
alley, to the unobstructed use of the whole of which alley both
grantees are tenants in common. The city council has no legal au.
thority to authorize said obstruction to be made, and from the na-
ture of the case, if the buildings were finished the damage could
not be estimated in money, and injunction is the only adequate
remedy.
Equity. Injunction. Nuisance. Municipal corpora-
tions. Before Judge Hillyer. Fulton County. At
Chambers. October 21, 1879.
In 1862 one Lewis owned a block in the city of Atlanta.
In order to sell it to the best advantage, he laid out an alley
running through the block, and sold the land in lots, the
deeds specifying that the lots extended to the alley, but
saying nothing of the uses to which it was dedicated.
Whether it was a public or private alley was somewhat in
dispute ; Lewis and the real estate agent who laid out the
alley swore that it was laid out solely for the benefit of
424 SUPREME COURT OF GEORGIA.
DeGive vtf. Seltzer.
those who purchased the lots ; while, on the other hand, it
appears that the city of Atlanta had laid sewers in the alley
and exercised other like control over it. DeGive owned
buildings on one side of the alley, Seltzer on the other. De-
Give began the erection of two privies in the rear of his
buildings, having first obtained permission from the city
council of Atlanta to erect them temporarily until the
sewer near by should be lowered, as it was the intention of
the city that it should be ; then he intended removing the
privies to the basement of the buildings, the sewer not be-
ing low enough for that purpose until changed. These
privies were so constructed as to extend about two and a
half feet into the alley, and were six feet wide. Seltzer
filed his bill to enjoin their erection, alleging that they
would be a nuisance to himself and family, who lived diag-
onally across the alley. DeGive answered, denying that
they would be a nuisance to Seltzer or his family, and
setting up the permission obtained from council, and that
the construction of the privies would be such as not to be
offensive in any way. Defendant also alleged that there
were several other privies as near or nearer to complain-
ant's house ; likewise a fire-engine house and stable, and a
cow-stall belonging to complainant.
On the question of whether the privies were so located
as to be a nuisance, of necessity, to complainant and his
family, the bill, answer and affidavits were somewhat con-
flicting.
The chancellor granted the injunction, and defendant
excepted.
D. F. & W. R. Hammond, for plaintiff in error.
Hopkins & Glbnn, foi defendant.
Jackson, Justice.
This seems to have been a naked attempt on the part of
the plaintiff in error to appropriate to his individaal nae
>y common to all the owners of lota in the block whieb
SEPTEMBER TERM, 1879. 425
DeGive ve. Seltzer.
the alley divided. Defendant in error applied for an in-
janction on the ground that the appropriation of the com-
mon alley to the erection of two privies therein six feet
long and some two and a half feet deep, was a nuisance to
himself and family, some of the bed-rooms of whose dwell-
ing overlooked the alley, and would render the privies a
standing nuisance if completed. The chancellor enjoined
the erection of the privies. We think that he was clearly
right. It matters not how beautifully or neatly erected,
nor how soon they might be superseded by privies in base-
ments hid from view, the very sight of such a building is
distasteful, and when put up in an alley common to others,
is a nuisance to one situated as the complainant is. If de-
fendant had put up the privies on his own land which he
held in severalty, then the beauty of the temples and the
absence of disagreeable odors might draw the sting of the
obnoxious view ; but when he undertook to put them up
in an alley dedicated by the common grantor to his neigh-
bor's use as well as his own, a right of just complaint, and
a remedy to vindicate that right, must be afforded to the
injured tenant in common. The only adequate remedy is
by bill in equity and injunction, because damages could
not well be ascertained in money, and so long as the nuis-
ance remained, actions at law would have to be brought
continuously, and thus multiplied into many suits. It is
unnecessary, therefore, to go into the learning on the subject
of what is or is not a nuisance on a public street or alley;
or how far the city authorities might authorize such erec-
tions as these privies are, jutting out on public streets or
public alleys — though even in such cases the nuisance, it is
believed, would be quickly restrained by a court of chan-
cery, though sanctioned by the city.
In this case the rights are those of private property.
The alley belongs' to the proprietors of the lots on the
block. Its joint use is theirs. Every foot of it each is en-
titled to use, and the city has no power to give the use to
one foot of it to one to the exclusion of another. Espe-
426 SUPREME COURT OF GEORGIA.
Morgan vs. Twitty et a/.
ciallj has it no shadow of anthority to give it, or any part
of it, to one to pat np a standing affront to the eyes or the
taste, however fastidious that taste, of another of the com-
mon grantees.
The chancellor not only did not abuse his discretion in
granting the injunction, but would have abused it, in oar
judgment, had he permitted such encroachments to stand
in the alley which belonged to complainant as well as to de-
fendant.
Judgment aiRrmed.
Morgan va, Twitty et al.
(Waxnbv, Chief Justice, being engaged in presiding over the senate OTg«nised ss s
court of impeachment, did not sit in this case.l
1. Affidavits used oq the hearing of an application for injunction con-
stitute no part of the record. To bring them to this court, they
should be incorporated in the bill of exceptions and followed by
the judge s certificate, or attached as exhibits and identified as the
identical affidavits used on the hearing by the judge's signature on
each. (R.)
^. If it were possible to identify the affidavits as being in the record,
the bill of exceptions in this case was signed June 19, and the record
certified July 1, so that there would not be any identification. (R.)
Practice in the Supreme Court. September Term, 1879.
Reported in the opinion.
C. O. Davis ; F. T. Cullinb ; DuPont Guerby, for plain-
tiff in errorj
Jas. H. Spbnob ; Jas. H. Soaifb ; I. A. Bush, by Jaokbon
& Lumpkin, for defendants.
Jackson, Justice.
The bill of exceptions brings np the refusal of the ehtn-
cellor to grant an injunction. It appears therein that die
SEPTEMBER TERM, 1879. 427
Horgan vs. Twitty el al.
chancellor had before him iu addition to answers of the
defendants certain affidavits. These affidavits are referred
to in the bill of exceptions in the following language, as
the evidence which the chancellor had before him, to-wit :
^^ The bill filed in said case by complainant and amendment
thereto, with the affidavits of E. H. Shackelford, W. H.
Brimbary, H. C. Dasher, James Morgan, and transcript of
city council record of Camilla, Georgia, and the answers
and affidavits attached thereto of the defendants, which bill,
amendment, answers and affidavits compose the record in
this case, and are hereby referred to and made part of this
bill of exceptions." The certificate of the chancellor is
dated June 13, 1879, and that of the clerk to the record
Jaly 1, 1879.
1. According to the ruling of this court in Colquitt, gov-
ernor, vs. Solo7nony 61 Ga., 492, and the case of City of
Atlanta vs. Olavery Ib.^ 337, the writ of error must be dis-
missed. These affidavits constitute no part of the record of
the case, and should have been exhibited to the bill of ex-
ceptions, and identified by the judge's signature on each of
them as the identical affidavits which were before him, or
incorporated in the bill of exceptions with the certificate of
the judge after them, or, at all events, should have borne
his signature when filed in the clerk's office.
2. Moreover, if the record could be referred to in order
to identify the affidavits, the record appears to have been
made up on the 1st of July, whilst the bill of exceptions is
dated the 19th of June ; so that when the jndge signed
the bill of exceptions, it cannot be inferred that he referred
to the transcript sent up here in this case, and the case of
The City of Atlanta vs. Clover^ before cited, covers this in
that respect.
This court cannot review the decision of the chancellor
unless it has all the evidence before it which he had, and it
must appear from the bill of exceptions incorporated therein,
or exhibits thereto with the sign manual of the jndge
VIM— 27
428 SUPREME COURT OF GEORGIA.
Dismake vf. Trammell .
thereon, what identical evidence was before him in the form
of affidavits when he prononnced judgment for or against
the application for injunction. See also Woolhri^ht vs.
Wall, 60 Ga,, 695.
The writ of error is dismissed.
- DiSHDKB V8. TfiAMIiBLL.
1. The judgment in the record not being dated, but providing for a
stay of execution to November 15, 1878, and the bill of exceptions,
which was certified January 17, 1879, stating that it was ten-
dered within thirty days from the decision, the clerk of the su-
perior court was ordered, under the act of 1877, to certify and send
up the date of the decision as appeared from the minutes. (R.)
2. Where the bill of exceptions and the record differ as to matters
which form a part of the record, the latter will control. (H )
8. In the absence of any statement to show delay by the presiding
judge in certifying a bill of exceptions after its tender, the date of
the certificate will be taken as the date of tender, and if beyond the
time allowed by law the case will be dismissed. (R. )
Practice in the Supreme Court. September Terra, 1879.
Reported in the decision.
Jas. S. Bovnton ; Samuel Hall, for plaintiff in error.
Hunt & Johnson, for defendant.
Jackson, Justice.
It appeared from tlie record in this case that the superior
eourt of Spalding county was in session more than thirty
days, beginning in August, 1878, and adjourning in Janu-
ary thereafter, and that the judgment excepted to had been
rendered prior to the 16th of November, 1878, as it pro-
vided for a stay of execution to that date, whilst the bill of
exceptions was signed and certified on the 17th of January,
SEPTEMBER TERM, 1879. 429
DiMnukc vs. Trammell.
1879. It seemed, therefore, from the record that the judg-
ment excepted to was rendered more than sixty days before
the bill of exceptions was signed and certified, and, if that
were true, that this court had no jurisdiction under the
statute to review the judgment. Yet the judge certified
that the bill of exceptions was tendered within thirty days
from the judgment To arrive at the truth, under the au-
thority of the act of 1877, we directed the clerk of the su-
perior court of Spalding county to certify and send up the
date of the judgment as it appeared on the minutes of the
superior court of Spalding county, which has been accord-
ingly transmitted to us. And from that transcript it ap-
pears that the judgment was rendered on the llth day of
August, 1878, some five months before the bill of excep-
tions was signed and certified.
We have held that unless the judge certified that for
some reason he retained the bill of exceptions after it had
been tendered to him, the date of his certificate will be con-
sidered the day it was tendered to him. Montioello V8.
Lawrence A Pope^ Ful)ruary 3, 1879.
Where the bill of uxceptions and record, properly ap-
plied, differ, the former, so far as relates to matters of
record, must yield. Indeed, it may be amended so as to
conform to the latter. 60 Oa.^ 450 ; 59 /J., 459. Code,
§4288. Therefore this bill of exceptions was not ten-
dered in time, and we have no jurisdiction to review the
judgment complained of. It should have been tendered
within sixty days from the time it was rendered, as Spald-
ing court was held more than thirty days.
We have no option in the premises, but the law which
gives us our only authority to hear and review any case, re-
quires us not to bear but to dismiss this case. And it is
so ordered. Supplement to Code, §*J5.
Writ of error dismissed.
430 SUPREME COURT OF GEORGIA.
Brown w. Lathrop A Co.
Brown vs. Lathrop & Company.
[Warnbb, Chief Jastice, did not predde in this case.]
1. A suggestion of a diminution of the record must describe or set out
the missing record to such an extent that counsel for the opposing
party may agree thereto and demand that the case proceed. A
mere statement that there was a motion for a new trial and a brief
of evidence, trhich the clerk had failed to send up, was not suffi-
cient. (R.)
2. The suggestion of a diminution of the record in this case being
insufficient, and neither it nor the record containing any final judg-
ment, the writ of error must be dismissed. (R.)
8. The argument of this case haying been postponed until after the
circuit to which it belonged had been concluded, no further post-
ponement to complete the record will be allowed under the act of
1877. (R )
Practice in the Supreme Court. September Term, 1S79..
In this caee O. 6. Gurley, Esq., the counsel who brought
the case up by writ of error, made an affidavit in which he
stated that "the clerk of Miller superior court has failed to
send up in said record the motion of plaintiff in error and
brief of evidence, which affiant avers were both made out
and filed in said clerk's office in terms of the law," and
suggested a diminution of the record on account of the
absence of those papers. This affidavit and suggestion
were left with £. C. Bower, Esq., who represented Mr.
Gurley in his absence. During the call of the cales on the
Pataula circuit, Mr. Bower was engaged, as a member of
the state senate, in the impeachment trial of John W.
Kenfroe, treasurer. The case was therefore set at the heel
of the Chattahoochee circuit. When it was called he pre-
sented the suggestion of diminution. Counsel for defend-
ants in error moved to dismiss the case because there waa
no motion for new trial or brief of evidence in the record,
and none set out in the suggestion of diminution so as to
be agreed to under Code. §4282, and because there was no
8EPTEMBEK TERM, 1879. 431
Brown «i. Lathrop A Co.
f nal judgment either in the record or stated in the sugges-
tion of diminution. Counsel for plaintiff in error asked
for a postponement of the case under the act of 1877.
Counsel for defendants resisted this on the ground that the
Pataula circuit was concluded. The court ruled as set out
in the opinion.
0. G. QuKLBY, by E. C. Bowbb, for plaintiff in error.
1. A. Bdsh, by Jaokson & Ldmpkik, for defendants.
Jackson, Justice.
In this case a diminution of the record was suggested by
plaintiff in error on account of the absence of the motion
for a new trial and brief of evidence, but the suggestion
contained no statement in substance or otherwise of the
said motion and brief, so as to enable the defendants in
error to admit the same and have the case heard ; and de-
fendants moved to dismiss the writ of error because there
was no brief of evidence either in the bill of exceptions or
in the record, and no final judgment on the motion for new
4;rial, even in the diminution as suggested.
Without the evidence we cannot pass upon the case in-
telligently. The court below refers to it in his certificate
of the bill of exceptions as necessary to be had for the
hearing, and it is conceded to be essential. Without a final
judgment the case is pending in the superior court now,
and has no place in this court. The suggestion did not
remedy the defect, and was itself defective in that it was
«o framed as not to permit the facts left out of the record
to be admitted by the defendants, and the case to be tried
at this term, which is always their right, and the policy of
the law which put this court in operation. Both sides
have rights ; the one to suggest what is missing from the
record, the other to admit its truth and go on to trial. The
first would continue the case unless admitted ; the last — the
admission — would expedite it; and to expedite it is the
432 SUPREME COURT OF GEORGIA.
Zimmerman et cU. v9. TucVer.
policy of our entire system of writs of error to* this court-
See Code, §§4250, 4282, 5087 ; Supplement to Code, §613.
The act of 1877 does not relieve the plaintiff in error.
The record cannot bo now got here within the call of the
Pataula circuit. There has been ample time to have-
obtained it, and to obtain the benefit of that very liberal
act, the part}' invoking it must be without fault. He has
been indulged for some weeks owing to the peculiar situa-
tion of the counsel who represents the absent counsel of
plaintiff in error, and. the day of grace is now ended in
every view of the law. See Supplement to Code, §§26, 27.
Writ of error dismissed.
Zimmerman et al. vs. Tcckek.
1. When a decree has been rendered against certain realty held in trusty
declaring it to be subject to pay a given debt contracted by a for-
mer owuer who created the trust, nnd declaring a lien upon the spe-
cific property to satisfy the decree, and the trustee was a party to
the bill nnd had his day in court, the beneficiaries of the trust can-
not arrest the sale by interposing a claim. They have no more
right to obstruct the execution of the decree in that mere statutory
method, than has the trustee who represented them as a party be-
fore the court when the decree was rendered.
2. One who is not properly in court as a claimant, cannot rest equita-
ble or other pleadings on his claim case, and by that means carry
on an attack against the validity or the bonafdes of the plaintiff's
judgment.
Trust. Judgments. Claim. Before H. K. McCay,.
Esq., Judge jrro hac vice. Fulton Superior Court. April
Term, 1879.
Numerous issues were made upon the trial of this case
which, in view of the decision rendered, have become en-
tirely irrelevant. The following facts are sufficient to aU'
understanding of the decision :
Tucker filed a bill against Plumb, as trustee for Mra.
SEPTEMBER T£RM, 1879. 433
Zimmerman gt al. v*. Tacker.
Zimmerman and her son George, to subject certain trust
property to the payment of a debt held by him against the
firm of Zimmerman & Verdery, the senior member of
which was tlie grantor to the trustee, and the husban.I and
father of complainants. The grounds of attack upon tlie
trust deed were mainly that it was subsequent to the crea-
tion of the debt, that the grantor was insolvent at the time
of its execution, and that its consideration was purely vol-
untary. A verdict was rendered subjecting the property,
a decree entered in accordance therewith, and execution is-
sued and was levied. The cestui que trust i claimed, and
upon the first trial of the issue thus formed the court
held that as the cestui que trusts were not parties to
the aforesaid bill, they were not bound by the de-
cree, and the validity of their title under the trust deed was
an open question ; that the failure to make them parties
could not be remedied by parol proof that Mrs. Zimmer-
man assisted in the defense of the bill, employed counsel,
and finally consented to the decree which was rendered,
more especially as Mrs. Z. was, and still is, a married
woman.
This ruling resulted in a dismissal of the levy, and
Tucker excepted. A reversal was had, on review, the su-
preme court holding that in the litigation arising upon such
bill the cestui que trusts were represented by the trustee,
were not themselves necessary parties, and were bound by
the decree. See 61 Ga,^ 599.
Claimants then filed an equitable plea attacking the
above mentioned decree upon numerous grounds. Upon
the trial the court ruled and charged that they could not
accomplish by such a proceeding that which the trustee was
estopped to attempt ; that he had had his day in court, and
was absolutely bound by the decree, and that in his fall,
through an adverse verdict, the present claimants, whom he
represented, fell also.
To the rulings of the court which resulted from this view
of the law, claimants excepted.
434 SUPREME COURT OF GEORGIA.
Zimmerman et 6/. «». Tacker.
Geo. T. Fey ; E. N. Bhotlbs ; A. C. King, for plaintifc
in error.
John T. Glenn, for defendant.
Bleckley, JuBtice.
1. The claimants derive their title, and their only title,
through the very deed of trust which was litigated and de-
creed apon in the equity cause. In that litigation thej
were, as we have held in 61 Oa.j 599, represented by their
trustee. The decree rendered against the trustee declared
a lien upon the specific property in controversy for a cer-
tain sum of money, and it is the enforcement of that lien
by a sale under the decree which is attempted by the cred-
itor (the plaintiff in the decree), and which the claimantF,
the beneficiaries of the trust, resist by claim. Tiie statutory
remedy of claim (Code, §3725) is not given to any person
whois a party to the execution under which the levy is
made. It is clear, therefore, that the trustee, as such, conld
not arrest a sale under this decree by the interposition of a
claim, and if he could not do it, we see not how those he
represented when the decree was rendered can do it. They
are as much bound by the decree as he is, if there was no
fraud or collusion, and certainly fraud or collusion will not
be presumed. The identical title which he failed upon is
the one which they assert, and the decree was a direct adju-
dication upon the subordination of that title to the lien
which the decree established and declared. In equity thej
were heard through their trustee, and the result of that
hearing was that the property was adjudged subject to the
creditor's debt ; they now seek, whilst tlie decree stands in
full force, to prevent a sale of the property under the de-
cree by interposing a claim founded on the trust title. The
claim laws, as we construe them, make no provision for anj
such proceeding.
2. It was a part of the ruling in 61 Oa.y 599, ^j;ra, that
SEPTEMBER TERM, 1879. 435
Broim ««. Wylie A Co.
— ■ ~" — ■ — • ■
the deeree is subject to be impeached for fraad or collusion,
bnt it does not follow that a standing in court for this pur-
pose can be obtained by interposing an ordinary statutory
claim. Could a defendant mfi.fa. claim the property lev-
ied upon, in the statutory method, and from his position as
claimant commence and carry on an attack against the judg-
ment as fraudulent and void? Surely not. When the
present claim was interposed, the decree stood open and un-
impeached, and "W^b^ prima faciey 2A binding upon these
claimants, so far as this property is concerned, as is an
ordinary judgment upon the defendant. This being so,
they could not and did not properly enter court by means
of their claim, and having thus no valid claim case, they
could not engraft upon it any equitable or other pleadings
by which to test the bona fides of the decree. Claim is a
substitute for other due process of law only where the claim
laws can be applied to inaugurate the proceeding. Once
in court according to these laws, the claimant can nise
issues, legal or equitable, to maintain liis standing ; but if he
comes by claim when he ought to come by process proper,
be has no right to remain and build, however abundant may
be his building materials.
Judgment afiSrmed.
BrowiI^*. Wylib & Company.
Where, on a money rule against the sheriff for the distribution of
funds in his hands amongst executions against a defendant in^. fa, ,
the court orders payment to some to the exclusion of others, the
sheriff is a necessary party defendant to a bill of exceptions filed to
such Judgment. Bird^ adm'z, vs. Harri\ exW^ 63 Qa,, 438.
Parties. Practice in the Supreme Court. September
Term, 1879.
Kennedy, sheriff of Bartow county, under order, brought
into court $140.18, the proceeds of property of Daniels, de-
4.ia SUPREME COURT OF GEORGIA.
Sewell vs. Conkle.
fendant in^.yb., for didtribution. Brown and Wylie &
Co. claimed the fund, the former under a mortj^ge jJ./a.,
and the latter under justice court .executions. The coart
gave precedence to the latter, and Brown excepted. The
bill of exceptions was served only on Wylie & Co. When
the case was called in this court, a motion was made to dip-
miss the writ of error because the sheriff, Kennedy, was a
necessary party and had not been served. The motion was
sustained, as indicated in the head-note.
Q. H. Bates; Julius L. Brown, for plaintiff in error.
Akin & Akin, for defendants.
Sewell vs. Conkle.
The writ of error must contain an assignment of the errors complained
of ; otherwise, it wiU be dismissed. (R.)
Practice in the Supreme Court. September Term, 1879.
The bill of exceptions in this case recited the proceed-
ings had in the court below and the judgment rendered
thereon. It then concluded thus: "Plaintiff, Sewell, ten-
ders this his bill of exceptions, and prays that the same may
be certified as true." Counsel for defendant in error moved
to dismiss the writ for want of any assignment of error.
The court granted the motion, announcing the principle
stated in the head-note.
J. T. Spence, for plaintiff in error.
L. S. Roan, for defendant.
SEPTEMBER TERM, 1879. 437
Hcymaow. The State— Hoi leman vi. HollemaD, etc.
*HEYiMAN V8. ThH StATK OF GeOBOIA.
[ WiBifEB, Chief Justice, being engaiS^ m preeidlng officer of the eeoate organized a»-
a court of impeachment, did not ait in this cace.]
This case is ruled by the case of Newman fa. The State^ decided at this
term.
Jackson, Justice.
HOLLEMAN V8, HoLLEMAN.
The affidavits pro and eon being conflicting, the discretion of the chan-
cellor exercised in granting the injunction will not be controlled.
Wabneb, Chief Justice.
Spabks vs. Notes ; The City of Atlanta vs. Champe
et al.; Elliott, executor, ^^ aL vs. The Sav. & Oo. Can.
Co. ; The Sgofield Rol. M. Co. et al. vs. The Statk.
The first grant of a new trial will not be reversed by this court unless
the plaintiff in error makes it appear from the record that the judge
abused his discretion in granting it, and that the law aqd facts re-
quire the verdict, notwithstanding the judgment of the presiding
judge. The principle ruled in the case of Merriam vs. 77w CUi/ of
Atlanta, 61 Oa., 222, covers this case.
Dykes vs. The State of Georgia.
1. There was no material error in the charge of the court.
2. Where the defendant was convicted of an assault with intent to
rape, and was sentenced to twenty years* confinement in the peni*
tentiary, as the term was within the limit prescribed by the statute,
this court will not interfere on the ground that it was excessive.
Wabneb, Chief Justice.
^^■^^^^— ^^i^— ^^^■^^^■^^^— ^^^^■~^^'^^^^l "™ ■■ ^M.^— — -■ ^»^^^— ^M I ■ I ^— ^^_ I Mill ■■ ■ I ^ ^ Ml ■ . . ^
*No reporta or opinions arc pabJiahed in the following cases under the provisions of
act of March 2, 1875. (B.)
438 SUPREME COURT OF GEORGIA.
The Ga. & Ala. 8. Co. vs. McCartcey A Ajtcm tt al, etc.
The Georgia & Alabama Steamboat Company vs. Mc-
Cartney & A YBRS et al,; Couch tw. The State ; Austin
v%. The State ; Griffeth va. The State ; Dykes v%. The
State.
The verdict in each of the cases hereia decided was supported by the
evidence.
Lindsay v%, Lowe.
An affidavit to foreclose a laborer's special lien on the products of bis
labor in sabstance alleged, that on the 17th day of September, 1877>
he went into the employ of the hirer to work on his farm (describing
it) in making a crop; that the contract was for twelve months from
date of contract at eleven dollars and sixty-six and two- thirds cents
per months; that he has fully completed and worked out that time;
that the employer is now duo him one hundred and twenty-eight
dollars and eighty cents for his labor on said farm; that he made a
crop of wheat and corn thereon under the contract, which the em-
ployer has in possession on said land ; that no demand has been
made on him since the debt became due for the reason that the em-
ployer was absent from the county when the contract was completed
and the debt became due, and is still absent and likely to be for
some time from his residence in said county; that he raised by his
labor the corn grown this year on the land described aforesaid, and
also the wheat, to-wit: about fifty-four bushels in said employer's
possession, and that he slaims a special lien on the same for the
payment of said debt, and that the foreclosure of the lien is within
twelve months from the time the debt became due, the affidavit
being dated the 9th of November, 1878:
HM^ 1. That the affidavit makes a sufficient allegation that the con-
tract of labor was completed by the affiant.
^. That the excuse for not making demand for payment alleged is
sufficient.
8. That the allegation is sufficient to show that the wheat was raised
under the contract and during the time employed.
4. That the demurrer thereto was properly overruled. Code, §§1075>
1991.
Jackson, Justice.
SEPTEMBER TERM, 1879. 43d
Smith va. The State.
Smith vs. The State of Gbosoia.
During the term of the court wherein he was found K^tltj, the de-
fendant made a motion for a new trial, with brief of evidence agreed
upon by the counsel, which motion the court refused to entertain
in the following words: "I refuse to approve the above brief of
evidence or entertain the motion for a new trial, because at the time
defendant was found guilty his counsel asked for a suspension of
the sentence to enable him to make a motion for a new trial, and
when the time given for that purpose had elapsed, the counsel ask-
ing the suspension and who defended the defendant on the trial,
abandoned his motion, to- wit: F. W. Robert, Esq , of Robert &^
Mallard, and asked the leniency of the court in passing sentence,
and the defendant himself produced a certificate in writing of the
jury who found the verdict that they intended to recommend him
to the mercy of the court, and himself asked the leniency of the
court, and as matters thus stood submitted to his sentence'; and
now, after all that ha? occurred, and I shaped my sentence accord*
ingly, supposing that to be the last of the case, defendant has
employed other counsel to move for a new trial, which is such
trifling with the court by him as I will not tolerate, unless ordered
by the supreme court. As I regard the defendant a bad man,
and the evidence showed he had been and was then engaged in
a serious difference with many citizens of Stone Mountain, Geor-
gia, I should have put upon him a severer penalty but for the
promise of his counsel that he would discontinue that quarrel:"
Held, 1. That the defendant is entitled of right to make a motion for a
new trial at any time during the term at which he is tried, on com-
plying with the provisions of law in regard thereto.
2. That this right is not forfeited by the fact that sentence has been
passed upon him.
8. That if dissatisfied for any reason with the counsel who defended
him before the jury or before the court at the time sentence was
rendered against him, he may employ other counsel to move for a
new trial.
4. That the sentence of the court ought not to be modified by any ar*
rangement between defendant or his counsel and the court, look-
ing to his abandonment of the right to move for a new trial, and if
so modified the defendant will not be estopped from his right to
move therefor during the time allowed by law.
6. That defendant's appeal for leniency and production of the certifi-
cate of the jury who tried him that they intended to recommend
him to mercy, did not forfeit the right to move for a new trial and
have the motion considered.
8. That the city court of Atlanta, in passing sentence for assault and
440 SUPREME COURT OF GEORGIA.
Jenkins vs. Harris, oxccator.
battery within the city, should uot consider any serious difference
the defendant was then engaged in with many citizens of Stone
Mountain, and impose a heavier penalty unless a quarrel at Stone
Mountain was discontinued.
7.That the reasons given by the city court, considered separately or
together, are insufficient in law to debar defendant from the exer-
cise of his clear legal right to have his motion for a new trial con-
sidered and the brief of evidence corrected, if necessary, by the court,
and approved according to law.
Jackson, Justice.
Jenkins vs. Harris, execator.
- [ Wabnbr, Chief Justice, being engaged in presiding over the senate organised as a coort
of impeachment, did not sife in this case.]
"Where the bill alleged that complainant bought from defendant's tes-
tator certain land^ at a certain price, and gave a mortgage to secure
the purchase money, which was foreclosed and judgment had on the
mortgage and general judgment on the notes, and that various
•credits should be entered on said judgments, some for moneys paid
before, and other credits for money paid since judgment, and that
■complainant was entitled to set off a certain sum as legatee under
•the will of the testator, and where the answer denied the credits
and all other allegations in the bill, and depositions were read, some
sustaining the bill and others the answer, and the will showed only
a trifling legacy to complainant, and where the only excuse for not
' ^making defdnse to the cause before judgment is sworn off in the
answer, and an agreement in writing in regard to the judg
ment since its rendition is exhibited contrary to the allegation
ithat the credits would pay off the real debt due on the judgment,
and the whole aspect of the case made shows gross laches and little,
if any, equity in the complainant:
Jleld, that the chancellor was right to refuse the injunction to stay ex-
ecution levied on the lands for balance of purchase money, though
there may have been slight irregularity in the petition and rule nisi
to foreclose the mortgage .
J^ACKSON, Justice.
SEPTEMBER TERM, 1879, 441
McAdain rt. The Weikel & Smith Spice Co., etc.
McAdam vs. Thb Wkikel & Smith Spice Company.
{Wabkxb, Chief Justice, beiog engaged in presiding over the senate organized as a
oonrt of impeachment, did not tit in this case.]
Where one party seeks to introduce secondary evidence of tlie contents
of a letter sent to the other by mail, and has neither given notice to
produce the original, nor inquired for it, calling attention to its date
or its subject matter, the secondary evidence should be excluded,
even though the other party resides beyond the limits of the state,
and has answered interrogatories propounded by his own counsel
requesting the production of all letters, generally, touching the
cause of action, and has failed to produce or mention the particu-
lar one which the adversary wants, and sending forward others, tes*
tifying that they arc all. Notice under sections 3508 and 3509 of the
Code is the appropriate means of procuring the primary evidence,
or of laying the foundation for secondary evidence.
Bleoklet, Justice.
Head et cU. vs. Ayoock, administrator, et al.
This bill was brought by tbe heirs at law of Allen Dykes against the
administrator of B. B. Dykes and Westbrook and others, creditors of
B. B. Dyke, to restrain the said administrator from selling a certain
tract of land, which complainants allege that B. B. Dykes bought
from Allen Dykes in 1857, and has not paid therefor. The asserted
equity of the bill is, that the land is subject to the vendor's lien; and
that the administrator cannot sell it to pay Westbrook and other
creditors of B. B. Dykes, because those creditors are postponed to
Allen Dykes, the vcodor, by virtue of his vendor's lien, which was
in force in 1857; and if the administrator should sell ft the com-
plainants could not bid, being poor, the land would bring nothing
'.scarcely, and they, as heirs of the vendor and entitled to the lien,
would virtually lose it.
Passing by the fact that the administrator, if he sold, would apply the
proceeds according to priority of lien of creditors, and that the pov*
crty of complainants is their misfortune but would hardly give them
any equit> ; and the further fact that the demand is stale and the
stntute of limitations of 1869 would seem to be in the way;~on the
• cuac presented, the creditors of B. B. Dykes, who are not charged
with notice of the vendor's lien in the complainants' bill, nor is the
allegation made in the bill that they were creditors prior to the sale
442 SUPREME COURT OF GEORGIA.
^ Milchdl >«. Htet»a-Jobnign tw. The SUie.
of the Uads from Allen Dykes lo B B. Dykes, have tbe superior
right to be paid out of Ibo lands nver the vendor's lien; and con-
sequently the administrator should nol be reslrained from selling to
pay them. Mounco tu. Byars et al.. 11 Qa., 180; Chaoce M. Uc-
Whorter et at., 30 Oa.. S15, 323.
Jackson, Jnetice.
MiTUHELL vs. StETBON.
Two years' reservation ot the uae snd poaaession of land sold a few
weeki before Judgment by an insolvent debtor destroys the validity
of the conveyance so far as such Judgment creditor is concerned.
B Oa., 448.
Jacksok, Jnstice.
JoHNeoiT vif. The State of Gboroia.
After suspension of scQtvnce and several continuances Ibereof to »Ilaw
time to prepare a motion for u new trial, oo the day to which the
cause was last continued, the recognizance of defendant was for-
feited. Afterwards, during the term, defendant came in and was
sentenced. Thereupon the followingmotion was made: "And now
comes the defendant and muvea tbe court to eni aside ibc forfeliure
of the bunil ^irpD liy (lefcDdanl ia «Aid case on the following
groundh, m-wil: Becftuac afler the verdict of guilty in isaid caae,
defendant'.* chudjcI pri^parcd a motiOD for a new trial, and defend-
ant baa been Id Hltpadanro on said court several limes ready to Ttv-
spoiid to mill ubide any order or judgment of the court on the dispo-
sition of said niollim for a new trial except on tlic 'JUI day of
January, 18TU, when defendant was sick In bed and unable lo attend
cotirt, and on which day the bond in said case was forfeitml," which
waa overruled, and defendant e;tcepled.
Slid, 1. That IbG jiidgmcni ofcrruliug the mulioD to wt aside lh«
jndgmenl forfeiting Ibe rerognizance in the only judgmenl excepts
to and for consideration in Ibis court, and not the rcfutnl in bear
the motion for u new trial. Mortland f*. Stephem, 6ecid(ni Ibl* lenn.
2. That i«irs/<iM'iM may never iisue upon t lie Judgment nua'lu furfeil
the recognizaDcc, oa the party, appeared and whi> tvntenrcd and
SEPTEMBER TERM, 1879. 443
Croaa w. The State— Tison vs. My rick.
that appearance and sentence would be* a complete reply thereto
should it be issued, so far as respects the final forfeiture of the
recognizance; and in respect to the costs, if the payment thereof
can be avoided by showing that defendant was prevented from
attending by sickness, the time for making the showing is when
some motion is made, or other proceeding is had, to charge him
with the costs.
Jackson, Justice.
Cross vs, Tuk State of Georgia.
[WarksBi Chief JuiCice, being engaged in preefding over the eenate organised as a
court of Impeachment, did n-jt sit io this case.]
1. Evidence to the effect that a hog was heard to squeal, that the wit-
ness ran to him, that defendant ran off from him, that the hog was
dead, being knocked in the head, is enough to show the takinn^ and
carrying away with intent to steal. Lundy vs, Ihe State 60 Oa,,
148; WiUtamsw. The Stats, lb., 867.
2. The allegata and probata sufficiently agree where the hog is described
as black spotted and weighing' twenty five pounds, and proven to
be of that weight and having black spots, though sandy colored
generally. It makes no difference that the special presentment
charges that the hog*s mark was unknown, and the proof is that he
was in mark of the witness, who owned and identified him.
3. The fact that a grand juror's name is on the minutes of the court
as properly drawn^ is a sufilcient reply to an exception to the indict-
ment that his name was not in the jury box.
Jaokbon, Justice.
TxsoN V8, Myrick, et al,
LWABinR, Chief Jnstica, being engai^ed in presiding over the senate ors^nised as a
court ol Impeachment, did not sit in this case.]
Where the Judge presiding certifies that he declined to pass upon the mer-
its of a motion for new trial in a case tried before another judge, be*
causethebrief of evidence was pot approved by said judge at the time
agreed upon by counsel.and no rtUe nisi was granted by said judge, and
where the facts are verified by the record, and the presiding judge
V 64—28
444 SUPREME COURT OF GEORGIA.
HoULb €t ai. V8. Saolsbary, Respeis A Co.
refused the new trial for the above reasons, this court has no option
but to affirm the judgment, there being no motion for a rule niti
or to perfect the brief of evidence. The plaintiff in error mast show
error, and to that end he must have the brief of evidence and mo-
tion for new trial dul]^ verified, so that the court below may pass
intelligently upon his case and this court intelligently review it
Jaok6on, Justice.
HoLLis et aL vs. Saulsbcby, Respess & Company.
[Wabnbr, Chief Jutice, being engaged In presiding over the senate oiganlxed as a
court of impeachment, did not sit in this case.]
The sheriff levied a mortgage^, fa. upon corn of defendant, having in
his hands no other execution against defendant; it was sold as per^
ishable property by order of the ordinary under section 8648 of
the Code, and bid in by the defendant in fl.fa., and knocked off
to him. An agreement was then made between defendant and the
sheriff, that if defendant would pay up the principal, interest, and
costs on the mortgage^. /a., he should have the com, otherwise the
agent of plaintiffs in the mortgage execution who was the next
highest bidder, was to have it at his bid; defendant paid off the
mortgage^, fa. and took the corn. On a rule against the sheriff by
the plaintiffs in the mortgage^. /a., which was returnable to Sumter
superior court and to a term not yet held, older executions claimed
the proceeds of the com in the sheriff's hands:
Eeld, 1. That the court of the county of the sheriff had jurisdiction to
rule him, though the mortgage fi, fa. was returnable to a subse*
quent term of another county.
2. That the lien of the older judgments not in the sheriff's hands was
not divested by the sale and agreement between the sheriff and the
defendant in execution ; that the corn was still liable to be sold at
their instance, and that the money was properly paid to the morl-
gage;f./a. 66 ^a., 883; 17 lb., 187.
Jackson, Jastice.
SEPTEMBER TERM, 1879. 446
Williams M. McMichael.
Williams v8. McMichabl.
[Wabnib, Chief Ju0tice, being engaged in presiding over the senate organlaed as a
conrt of in^achment, did not oil in this case.]
On the I2th day of Jaouary, 1877, Mrs. McMichael rented to Williams
a certain described lot of land for the year 1877, he promising in
writing to pay her as rent one fourth of all crops produced on the
premises. He entered under the contract, and occupied until the
middle of May, 1877, when his father-in-law (one Rogers) proceeded
against him by affidavit (Code, §4072) as an intruder. Williams
filed no counter-affidavit, nor did he give any notice to his landlady,
but to the officer who came to evict him he acknowledged himself
the tenant of Rogers. On these terms the officer agreed not to ex-
pel him, and did not in fact expel him, but made return on the affi-
davit that he had executed it by dispossessing him. Afterwards
Williams rented the premises from Rogers.
On the 17th of April, 1878, Mrs. HcMichael sued out a distress war-
rant against Williams for the rent, claiming one-fourth of the crops,
according to the terms of the written contract, and fixing the value
thereof at three hundred dollars. The warrant was levied and there-
upon Wiliams made affidavit that the amount claimed was not due, in
whole or in part. At the trial of this issue the facts above recited
appeared in evidence, and the actual value of one-fourth of the
crops was proved to be $189.07, the tenant himself being the only
witness. The court charged the Jury *' that such an eviction as
shown was not such an eviction as would release the defendant
from the payment of the rent due to the plaintiff.*' The jury found
for the plaintiff $189.07, the amount which the defendant himself
testified that the one-fourth of the crop was worth.
Held, 1. That without defending his possession or giving his landlady
notice that it was attacked, the tenant could not treat himself as
evicted, and attorn to another.
EM, 2. That, in a civil case, where upon the widest and most favora-
ble view that can be taken of the evidence, it presents no legal de-
fense, the court may so instruct the jury as matter of law. Bo to
charge is not to express or intimate an opinion as to what has or
has not been proved, but to declare the legal effect of all that the de-
fendant has attempted to prove, considering the whole as success-
fully established,
Blkcklet, Justice. '
446 SUPREME COURT OF GEORGIA,
Prltebard vt. Ward— Dogan H al. V9. McGlaan et a/., etc.
Pbttohabd v8. Ward.
Homeetead in realty, under section 8040 of tho Code, and the follow-
ing sections, must be lild off and the plat returned to the ordi-
nary and recorded, in order to vest the title in the head of the
family free from his debts, unless the quantity of land owned is not
more than that exempted. In this case .the quantity owned being
eighty-six acres, and that exempted being sixty acres, it was essential
that it be laid off and the plat returned in order to show what part
had been set apart, so as to determine whether or not a trespass was
committed on the land so set apart as homestead.
Jaokson, Justice.
D0GAN et al. ve. McOlaun et al,
[WABHaif Chief JiKtlce, belog engaged in pnaiding over the senate oiganissd as a
court of impeachment, did not stt in thia case.]
Where the court has passed a final judgment for the distribution of
money, and, during the same term of the court, some of the parties
to the proceeding petition for a rule nm requiring the others to
show cause why the judgment should not be set aside or rescinded
because of a mistake made by counsel in the calculation, and where
there is no verification, by affldaTit or otherwise, of the facts alleged
in the petition, the rule should not be granted, no mistake appear-
ing on the face of the former adjudication.
Blsgklet, Justice.
Jones, assignee, ve. The Mobile & Girabd Railroad;
Powell vs. Boutelx.
[WABirsB, Chief JnBtice, being engaged in presiding orer the senate organiaed aa a
conit of im|>eachment, did not sit in this caae.]
The defendant in error moved to dismiss this case on the ground that
there can be no writ of error to a voluntary non'^tuit.
Such appears to be the law. 7 Ga., 79, 227; 9 Ga., 207; 88 &a., 206;
60 Qa,, 117; 10 WendeU, 169; 8 Howard, Miss., 882, cited by de-
fendant in error.
SEPTEMBER TERM, 1879. 447
The Mayor, etc., of Americas «#, Alexander, etc.
The precise language of the tum^suit is as follows: "At this term of
the court comes the f^aid plaintiff and take» a non-iuit of said cause
withoul prejudice arid with leave to except to any errorsJ* The only
question is this, does the reservation alter the principle ruled in the
above stated cases ? We do not see how a right never possessed can
be reserved, and without the production of some authority taking
the case out of the general rule by reason of this reservation, the
case must be dismissed on the strength of the authorities cited.
A motion was made by leave of the court to reinstate this case on the
production of authority, and 5 (7a., 171, and6t Qa., 460, were cited,
but we do not think that those cases take this without the general
rule.
Writ of error dismissed.
Jaokbon, Justice.
The Mayor, etc., of Amerioub v8. Alexander.
[Washxb, Chief Justice, being engaged In presiding over the senate oiganixed ae a
court of impeachment, did not ait in tbia caae.]
1. Where a contractor who had engaged for a year to work the streets
of a city "according to plans, specifications and stipulations of an
ordinance of council/' was discharged before the year expired, and
afterwards brought suit against the city for damages resulting from
such discharge, evidence was admissible in his behalf, on the trial
of the action, tending to show that he worked the streets in a proper
manner.
2. It does not appear that the finding of the jury was contrary to the
law or evidence, or that the amount of the verdict was excessive,
except as to the sum written off in conformity to the ruling of the
presiding judge on the motion for a new trial.
Bleoklet, Jasticc.
The Atlanta & West Point Bailroad Company va.
Johnson.
To charge upon a question not warranted by the testimony was error.
Warner, Chief Justice.
448 SUPREME COURT OF GEORGIA.
Maddoz vt. Heard et a^lliichell w . The State— Stamimon tw. Daniel.
Maddox v8. Heard et al.
The condition prescribed by the 8583d section of the Code in the bond
of plaintiff in garnishment proceedings at common law after judg-
ment, is "to pay said defendant all costs and damages that he may
sustain in consequence of suing out said garnishment in the event
it should appear that the amount sworn to be due on such judgment
was not due." The condition of the bond given in this case is as
follows: ** Now,if there is no such judgment as aforesaid, this bond
is to be good and valid against the said J. Maddoz and his security,
in favor of the said Lewis Morrison, the defendant in said judgment;
otherwise to be of no force and effect."
EM, that the variance is fatal, and the garnishment was properly dis-
missed at plaintiff's cost.
Jackson, Justice.
Mitchell vs. The State of Geobgia.
[WABinoi, Chief Jnatiee, being engaged in prealding over tha aenate organised aa a
conn of ImpeachmeDt, did not ait in tliia case.]
An order for one dollar, payable to the prisoner, and written in pencil,
the amount being expressed in a figure one with two noughts, thus,
$1.00, was delivered to him in payment of a debt for that sum,
which was all that the drawer owed him. He presented it to the
drawee for payment, and it then had a figure eight in place of the
figure one, and he received payment accordingly:
HM, that with these facts and the order before them, the jury were
justified in finding that the one had been altered to an eight, though
a witness, using a microscope, testified that he could discern no trace
of any alteration:
Held, also, that the jury could infer that the alteration was made by
the prisoner, there being evidence that he could write, and no evi-
dence to implicate any other person.
Bleckley, Justice.
Shannon v8. Daniel.
On certiorari from the county court, where the judgment is reversed,
the case should be remanded for a new trial if questions of fact are
involved.
Warner, Chief Justice.
SEPTEMBER TERM, 1879. 449
Moore «t. The State—Crenehaw vt. The State.
MooBE V8. The State of Georgia.
[W^BiniB, Chief JotUce. b jing engaged in presiding over the ssenate organized as a
court of impeachment, did not sit in this case.]
1. Where a nurse left the home of a child two years old with the
child, and on her return with it the child bore marks on its person
of having been severely whipped, the child being sound and well
and free from all such marks when carried out by the nurse, the evi-
dence to the effect above stated is sufficient to support a verdict of
guilty of assault and battery against the nurse, and the charge of the
court having presented the law of circumstantial evidence fully
and correctly to the jury, that verdict will be upheld.
2. In such a case a request to charge "that the absence of a motive for
the commission of the crime charged upon the part of defendant is a
circumstance that the jury may consider as favorable to defendant
in determining her guilt or innocence," was properly refused,
especially as the court fully charged the presumption of innocence
and the burden upon the state fully to m^ke out the case beyond a
reasonable doubt and with evidence so strong as to exclude every
other reasonable hypothesis but the guilt of defendant.
Jackson, Jnstice.
Cbbnshaw v8. The State of Georgia.
[ f^ABMSB, Chief Jnstice, being engaged in presiding over the senate organized as a
conrtof impeachment, did not sit in this case.]
Tbe indictment charged the stealing of "one blue hog, to-wit, a sow
weighing about one hundred and forty pounds, and having the
marks following, to-wit, a swallow fork in the right ear and a
smooth crop in the left ear." The description proved at the trial
differed from the foregoing in two respects; first, the sow,
though blue, had a narrow white list around her; and, secondly,
the left ear bore the swallow fork, and the right ear the smooth
crop.
6Mf that the narrow white list did not conflict with the general de-
scription as to color given in the indictment ; but that the ear-
marks proved varied materially from those alleged, and for this
reason the prisoner was improperly convicted. Though it was un-
necessary to have described the animal by the ear-marks, yet the de-
scriptive terms of the indictment having gone to this extent, the
burden was assumed of proving the specific marks alleged. Ros.
Gr. £v., 193; 2 Russ. on Crimes, 788; 15 Me.. 476; 50 Qa., 501.
Bleckley, Jnstice.
460 SUPREME COURT OF GEORGIA.
Jones vt. The State— The Marietta Manufacturing Co. vt. Faw, etc.
Jones vs. The State of Georgia.
On the trial of a defendant charged with the offense of shooting at
another, it is error to charge that if defendant pointed a pistol at
another and fired, it would be unnecessary to show that it was
loaded with ball or shot, but the presumption of law would be that
it was so loaded. Bee 45 Oa., 477.
Wabner, Chief Justice.
The Marietta Paper Manufaoturing Company vs. Faw.
[WiBNiB, Chief Justice, being engaged in presiding over the senate otgaaiaed as a
court of impeachment, did not sit in this case.]
The bill of exceptions was certified by the presiding judge on the 25th
of April, 1879. Service of the same was acknowledged by defend-
ant's counsel in the following words, on the 6th of May, 1879: *'Due
and legal service acknowledged on the within bill of exceptions, and
copy and all further service hereby waived."
A motion was made to dismiss the bill of exceptions because service
was not acknowledged within ten days. The bill of exceptions
must be dismissed. The question is not an open one. 50 Oa„ 858;
Code, §4259. The act of 1877 does not cure the defect. That act is
intended to cure want of sufficient service where the party not only
waives the defect but consents to try the case, and such is its lan-
guage.
Writ of error dismissed.
Jackson, Justice.
MoKiNNEY, administrator, vs. Wells & Avera ; MoKikney,
administrator, vs. Avera.
Wabnxb, Chief Justice, being engaged In presiding over the senate organised as a
coort of impeachment, did not sit in this case.]
The first item of a testator's will was as follows: " I have sold the
stock of goods now owned by me to my brother, D. Qt, Avera, he
to pay my executor the cost price of the same, and my brother Is to
BEJfTEMBER TERM, 1879. 451
The ManhAttan fire InsaxBnce Co. v», Tumlin.
have the use of the store-house as long as he wants it." Subsequent
proviaions of the will directed that the testator's wife keep his prop-
erty together, and use her discretion in renting it out from year to
year, for the benefit of herself and the children, who were to be
reared and educated out of the rents and profits, and out of collec-
tions on the testator's notes and accounts. The property was to be
kept togethei" until the youngest child became of age, and then was
to be sold or divided, the wife and each of the children to have an
equal share. The wife and the said brother of the testator were
appointed executors of the will and guardians of the children, bond
and security being dispensed with.
HM, that the use of the store-house waa bequeathed to the brother,
and that it was his as matter of right, to occupy during pleasure
without paying xent, and that such occupation might be with or
without a partner in his business.
Bleoklst^ Justice.
The Manhattan Fibe Inbubance Company vs, Tumlin.
On Hay 4th attorneys in Atlanta mailed a letter to an attorney in Cuth-
bert, retaining him for the representation of a case which the writers
had brought in Randolph superior court. Had the letter been
received by due course of mail, the case would have been repre-
sented; but it was miscarried, and did not reach its proper destina-
tion until May 14th. In the meantime, court met on May 6th, and
the case was called and dismissed for want of reprebcntation on
May 10th: •
Held, that this court will not interfere with the discretion of the court
below in refusing to re-instate the case. As a general rule parties
who transmit papers by mail take the risk of the same being received
in time.
Wasneb, Chief Jastice.
452 SUPREME COURT OF GEORGIA.
In the Mattor of Best.
*In thb Matter of Rest.
1. Rest for hand and brow and breast.
For fingers, heart and brain !
Rest and peace 1 a long release
From labor and from pain :
Pain of doubt, fatigue, despair —
Pain of darkness everywhere.
And seeking light in vain I
2. Peace and rest I Are they the best
For mortals here below ?
Is soft repose from work and woes
A bliss for men to know?
Bliss of time is bliss of toil :
No bliss but this, from sun and soil.
Does God permit to grow.
Bleckley, Jastice.
*Jii8tice Blkoklkt having refigned, at the conclaslon of hts last opinion, read from
the bench the above eiqnlsite little poem, which was ordered spread apoii the Tnfnntew
by the eonrt. It constltatea a lit close to the jodiclal career of one whose ophUoos lo
these reports show him not only to have been the profoond lawyer, but also the aocom-
plished schoUir. (R.)
CASES ARGUED AND DETERMINED
IN THE
nptm €ont of {mt^k,
AT ATLANTA.
FEBRUARY TERM, 1880.
Present— HIRAM WARNER Chief Justice.
JAMES JACKSON Associate "
MARTIN J. CRAWFORD
Hill v8. State of Georgia.
1. Remarks made by a jaror before he had been impaneled indicating
bias, may be explained by him, and if made simply for the purpose
of avoiding jnry duty, the fact that he was taken upon the jury
which convicted defendant will not necessitate a new trial.
(a.) That one of the jurors in a criminal case conversed with his wife
apart from the others, is no ground for new trial, where it appears
that the conversation had no reference to the case, and was had
with consent of defendant's counsel.
(b.) Objections to a Jvltot propter drfeeum are too late after verdict.
(e.) A juror on being polled replied to the question "Is that your
verdict?" '*I agreed to it." This answer was objected to and the
court again propounded it, when he said, "I agreed to it, I sup-
pose." The court said that the juror was not asked for a supposition
but for what the juror knows, *'Is this your verdict or is it not?"
The answer was "I suppose it is, if that is a proper answer to your
question." "You are an intelligent man, Mr. Randall, please an-
swer me?" "Yes, sir, I agreed to it," was then the answer. There-
upon the verdict was received over defendant's objection:
MM, that the verdict was properly received. Nor can the juror im-
peach it by subsequent affidavit.
454 SUPREME COURT OF GEORGIA.
BUI w. The State.
2. The idea of preyention or defense against an impending or prc^
gressing wrong must enter into all cases of Justifiable homicide.
To deliberately kill in revenge for a past injury, however heinous,
after reason has had time to resume its sway, cannot be justifiable.
(a. ) The court charged that if Hill came upon Simmons suddenly and
without premeditation, and his passions were aroused thereby, and
in his (Hill's) belief, Simmons had a pistol, and enraged on seeing
the adulterer for the first time after his knowledge of his guilt, h«
shot him and killed him, then the offense would not be murder, bat
manslaughter; but if the attack was premeditated and deliberate,^
and not upon a sudden burst of uncontrollable passion, then it
would he murder.
Held, that the charge was right and warranted by the evidence.
(6. ) As to the comparative weight of the evidence and the prisoner's
statement, this case is controlled by the ruling in Oojb m. JStaie, last
term.
(0.) The charge was not argumentative or partial.
(d.) The constitution of 1877 does not alter the law in regard to the
jury being judges of the law and fact in criminal cases. It simply
re-enacts the provisions of the Code as they already stood, and em-
phasizes them by insertion in the fundamental law.
8. Newly discovered evidence which is merely cumulative to that in-
troduced on the trial, not ground for new trial.
(a.) Insanity was not pleaded. Had it been the record does not show
that the plea would have been sustained. If the defendant delib-
erately slew the deceased in revenge for adultery with his wife, he
would not be protected by the fact that he labored under a delusion
as to her character for virtue. If he is now a lunatic he can be re-
moved to the asylum on proper proceedings had therefor.
4. The verdict is supported by the evidence.
Criminal law. Jary. Praotice in the Superior Court
Charge of Coart. Constitational law. Hnsband and wife.
Insanity. New trial. Before Judge Hillybb. Falton
Superior Court. March Term, 1879.
To the report contained in the decision it is only neces-
sary to add the following :
Samuel H. Hill was tried for the murder of John R.
Simmons. The evidence showed that Simmons was shaved
in the barber-shop of tlie National Hotel, in Atlanta, and
from there passed into the adjoining bar-room; that he
took a drink of liquor, and while paying for it Hill came
FEBRUARY TERM, 1880. 455
Hill V9. TtaeSUte.
up with a pistol, and with an oath which caused Siminone
to tnro, fired upon hitn; that Simmons died from the
wonnd within a few honrs, almost his last expression being
that he was shot "for nothing in the world ; he (Hill) shot
me without sajing a word." As to the exact expression
used by Hill before he fired, the testimony and statement
of the prisoner do not coincide exactly ; as stated by him,
Simmons placed his hand apon his hip, and Hill said, "Pull
here, damn yon, you've got to do it," and fired.
Thus far the conflict in the evidence amounts to
little, but at this point the real contest begins. The de-
fendant sought to show that Simmons was the seducer of
his wife, and certainly established that he was a paramour
of hers. It appears from the evidence that in December,
1878, she left home with Simmons, and remained from Sat-
urday night until Monday afternoon at a bawdy-house ;
that Hill made diligent search for her, and at la^t recovered
her through the instrumentality of a lewd woman, who
communicated with Simmons, and through him caused her
to return ; that Hill condoned this offense, and removed
her to a, place some miles in the country; that on Janu-
ary 16th, 1879, Simmons was seen to pass and re- pass this
place in a buggy, and about the same time a note was re-
ceived by her, claimed to have been written by Simmons
in a disguised hand ; that she wrote an urgent letter to her
husband telling him to come to her, but assigning no rea-
son ; that he went, and about the end of January the hom-
icide occurred. There was much evidence for the defense
to show the anguish of Hill, his excitement, and that he
made numerous inquiries about his wife, Simmons, etc.
The state replied and supported its position with the tes-
timony of numerous witnesses, that Mrs. Hill had left the
path of virtue long before she met Simmons ; that she met
him in the company of harlots under the assumed name of
" Miss Effie Etheridge," and received his attentions as such ;
that she visited balls and houses of bad character both with
Simmons and other men; and that in most if not all
456 SUPREME COURT OF GEORGIA.
Hill VM, The State.
respects her actions were those of a common woman of
loose character. It appears that Simmons discovered that
she was a married woman, bnt at what time does not ap-
pear.
There was some testimony tending; to show that before
the homicide Simmons anticipated a difficnlty, and was pre-
pared for it, or at least had spoken of being armed for each
an emergency.
Of Hill's love for his wife and the genaineness of bis
anguish at her fall there seems to be no doabt. How far
his knowledge of her real degradation extended before the
killing was a point in contest. One witness for the state in-
dicated that he knew of her immorality, others that he was
informed of her attendance at improper balls with other
men than Simmons, bat the main reliance of the state on
this subject was the following portion of defendant's state-
ment : " John Simmons accomplished what he had before,
and this is what she tells me of it; has told me all the time,
and it is John Simmons all the time. G. tried to do so
himself, bnt Simmons told her G. was diseased, and he
would have accomplished his purpose but for that ; and I
state this to show yon what he done, and that he was not
so much to blame, and that is the reason I didn't kill him."
The court deliveied the following charge :
** Gentlemen of the Jury:
^The court vrill now deliver to you the law for your guidance and
direction in reaching a verdict according to the evidence.
'*The court will not express or intimate any opinion touching the
evidence or facts in issue. The court delivers to you the law with can
and upon great consideration, and you may safely rely upon its cor-
rectness as the court delivers it. It is your exclusive province to And
the facts in the evidence. Tou Judge the law and the facts, and they
lead you to the trutb.
" I now read you certain sections of the Code pertinent to the case,
and to which I invite your careful attention.
" Sections 4293. 4293. 4819, 4820, 4821, 4822, 4828, as amended by act
of 1878, 4824, 4325, 4327, 4330, 4881, 4832, 4888, 4884, 4886.
" If you find from the evidence that the prisoner at the bar did. in
the peace of the state, in this county, on the occasion, with the weapon*
FEBRUARY TERM, 1880. 457
HUl w. The State.
and in the manner described and set out in the indictment, with malice
aforethought, either express or implied, unlawfully kill the deceased,
John R. Himmons, and if the prisoner was then and there a person of
sound memory and discretion, the oftense of murder would be made
out; otherwise the offense of murder would not be made out.
" A person would be presumed to intend the natural consequences
of his acts. A person would be presumed of sound memory and dls*
cretion unless the contrary appear.
"By our law homicide is of three kinds^murder, manslaughter and
Justifiable homicide— and it is not every killing of another that is un-
lawful. But if it appear that the prisoner was the slayer, then the law
would cast on him the burden of proof to show that such killing was
Justifiable; he must show clearly that there was an actual necessity
for the killing in order to prevent some grievous injury, such as those
expressly laid down in the Code, or such other or others as may in the
opinion of the jury stand on the same footing of reason and justice as
those enumerated.
" To constitute either murder or manslaughter the killing must have
been unlawful, for if the killing is justified the law of our state declares
that the person accused shall on his trial be fully acquitted and dis-
charged.
" If a man and his wife be living together in the holy bonds of mat*
rimony, and in virtue and in peace, and another man should become
the seducer of such woman, or an adulterer with her, or should at-
tempt to do so, her husband would have the right to defend her and to
defend himself from such injury, and to use just so much force as
under the circumstances was necessary for that defense, and to make
it effectual and complete. The penal Code enumerates certain instances
of Justifiable homicide, and then in section 4884 sets forth this general
provision : ' All other instances which stand on the same footing of
reason and Justice as those enumerated, shall be Justifiable homicide.'
Ton notice in listening to these various sections of the Code read in
your hearing, that one of the principles of reason and Justice on which
a homicide can be Justified Is this: that such homicide was committed
as a defense against an injury — to prevent an injury of the serious
kind described—or to stay its progress. There is no principle of rea-
son or justice enumerated in the Code by which, after an injury shall
have been consummated, no matter how great and no matter how
grievous that injury may be, the party injured would be Justified in
taking vengeance into his own hands and in deliberately seeking out
the wrong-doer and slaying him. The law would continually thunder
its imperative command in the ears of the one thus outraged and
tempted: ' Thou shalt not commit murder I' One of the very reasons
why the law visits such terrible punishment on the crime of murder is
beoiuse of the greatness of the temptation, the provocation, and the
passions which sometimes lead to its commission. Punishment is in-
458 SUPREME COURT OF GEORGIA.
Hill w.' The State.
tended to overcome such passions and deter men from the crime; and
the existence of such temptations, provocations, or passions, if such
there be, might be looked to for ascertainiAg motives, or to inquire
whether the killing was intential or malicious, but would afiFord no
Justification for the killing if perpetrated for the mere purpose of ven-
geance, punishment, or vindication.
" A man would have the right, nay it would be his duty, to protect
and defend his wife against any assault upon her virtue by eitlier a
seducer or an adulterer. In this state the husband is the head of the
family; the wife is subject to him; her legal civil existence is merged
in the husband, except so far as the law recognizes her separately
either for her own protection or for her benefit, or for the preservation
of public order— Code, section t753. And it would be the duty of a
wife to conform to any reasonable and just regulations the husband
may lay down for guiding her conduct or choosing her as8o6iate8--and
it would be the duty of all other persons to acquiesce in the husband's
authority or directions, so far as known in respect thereto, and if any
man should violate this principle for the purpose of adultery, or seduc-
tion, and by open force or deceit, or fraud, come between husband and
wife, the husband would have a right immediately and swiftly to resort
to force for the expulsion of such intruder, and, as before stated, to
use just so much force as was necessary, and even to slay the aggres-
sor, if such killing should be actually necessary in order to protect
and defend his wife. But if a man's wife be permitted to go, or does
go, into haunts or walks of vice, and becomes an adulteress with one
man, or more than one man, and though her husband knew nothing of
such misconduct, yet when he finds it out, if he goes to her rescue,
seeks and accomplishes her complete restoration to him and condones
her offense, and there is no further necessity for violence in her de-
fense, or in his defense, he would have no right afterwards deliberately,
and with premeditation, to arm himself with a deadly weapon and
seek out her paramour, if there was but one, or to select among them^
if more than one, .and to slay him with that weapon, and if he do so
after the lapse of cooling time, that is, after the lapse of an interval
sufficient for the voice of reason and humanity to be heard, his offense
would be murder. The party injured would not be justified in taking
the law into his own hands, and, in the chambers of his own mind,
judge and condemn such offender to' punishment by death, and then
deliberately become also his excutioner. The law provides other and
juster means for putting men on trial, and for condemning and pun-
ishing offenders. And any man who should thus take the law into
his own hands, and with such purpose and intent, slay another, would
thereby become a murderer.
*' Look to the evidence and see what was the state of things when
the killing occurred. If at that time the prisoner's wife was in safety
-some miles distant at her home in another coumty, in the society of her
FEBRUARV TERM, 1880. 459
mil vg. The State.
friends, and the deceased wns then and at that time engaged in making
no attack of any kind on her, cither by open force or fraud or deceit,
or even though deceased had some days or a few weeks previously en-
deavored to persuade her to meet him by writing her a note, or sending
her ft measnge. or otherwise, still, if practically she was on that day and
at that time in safety, and there was no necessity pressing upon the
prisoner to adopt then and there so dreadful an expedient as taking
away life in order to defend either himself or her, then no motive of
vengeance or anger, nor any other motive based on sucb past offenses,
would justify the killing. No matter how badly the deceased and
others may have acted days or weeks before, and no matter how just
the prisoner's anger m«ty have been for previous injury or grievances;
still, if that anger rested exclusively on past occurrences; if at that
time the deceased was saying nothing and doing nothing in further-
ance* of any criminal project, such past occurrences would afford no
justification; nor would a bare fear of any repetition of offenses, or of
an attempt thereat, justify the killing. The prisoner would have a
right, if he chose so to do, to condone her offenses and to continue to
live with her, and the law would protect him and her therein • and if
he apprehended any further invasion of his peace, he would have the
right to take precautionary measures and be on the alert, and if such
further attempt should be made, to meet it with any force reasonably
needful to repel and to overcome such invasion or to cut it short. But
if, disregarding his duty and deaf to the voice of reason and humanity,
he, after an interval of time sufficient for that voice to be heard, take
the law into his own h.-inds and slay the deceased through mere anger
for past offenses, this would come within the definition of deliberate
revenge, and would constitute express malice.
**The supreme court has never decided that such a killing would be
justified. That court has held, just as this court now holds, that a
man may in good faith defend his wife's person and his wife's virtue
on the same principles of reason and justice as he may defend his own
person ; but that he may not take the law in his own hands and delib-
erately avenge unto death a past and accomplished adultery in the
manner or after the time claimed in the argument.
"The court states to you the law clearly. You are plain, honest
men, seeking the truth and desiring to do right. The court is your
safe and reliable constitutional adviser as touching the law. You have
the right to receive the law as the practiced and trained mind of a
sworn judge knows it to be, and I would be unfaithful if I fail to de-
liver it plainly.
"Take no heed of anything read or spoken to you to the contrary
hereof. Courts and juries cannot — nay, dare not — swerve from the
truth in the law any more than in the facts. If any other jury has
ever found, as in your hearing claimed, that in any case a man has the
right to take the law into his own hands and be justified to execute
V 64—29
460 SUPREME COURT OF GEORGIA.
Hill ««. The bUte
vengeance unto death, this would rather cause such juries to be noted
for their weakness or their wickedness, but would be no precedent or
example for you.
" So far as anything may have been said in your hearing to the con-
trary of what the court announces to you on the point in question,
when reduced to its ultimate analysis it simply amounts to the proposi-
tion that the law is wrong. The law is not wrong. But if it was
wrong, neither you nor the court could change it.
*'The course taken in the argument renders it proper for the court to
remind you that the law lays down general rules applicable to all.
The law is made for the whole state, white and black, old and young,
good and bad, all alike. What would justify one in the courthouse
would under the same circumstances and motives justify another.
Courts and juries can be no respecters of persons, and if there be that
of right reason, which makes it proper to withhold punishment in any
particular case where the letter of the law has been violated, the wise
and humane provisions of the constitution and laws of our state would
not therefore ask a court and jury to swerve from the truth in the law,
but would authorize application to that power in the state capital,
where is vested the right to grant reprieves and pardons. I caution
you carefully that you must not convict or mo^ e one iota towards con-
senting to a conviction or any idea or supposition relative to pardon,
but I mention it to you merely to disabuse your minds and to let you
see how you may justly and wisely discriminate between such logic
and argument as may aid in leading you to the truth in the law, and
such appeals to feeling or based on any alleged exceptional nature of
the case as are out of place when addressed to you, but should be ad*
dressed, if need be, to another department of the state government,
having a wider discretion than any which exists in the judicial depart-
ment.
" If the jury should be satisfied, after a car eful consideration of all
the evidence, that the deceased, John R. Simmons, had had, without
defendant's knowledge, criminal intercourse with defendant's wife,
and after this fact came to defendant's knowledge he should casually
meet the deceabed, without having sought him, and without any pur-
pose to attack him with a deadly weapon, but being brought unex-
pectedly face to face with him, and believing that deceased was armed
and expecting to fight him, the prisoner's passion should be aroused
anew and was sudden, violent and ungovernable, and without any
mixture of deliberation whatever, and if under the influence of such
passion and upon such sudden occasion the prisoner fired on deceased,
his offense would be voluntary manslaughter, and not murder. But
you will observe, as before stated, that if there was premeditation and
cooling time, and if the prisoner had sought and found deceased with
an intention to kill him or with a preconceived intention to bring on a
fight with deadly weapons, the law would not thus grade such offense
from murder down to manslaughter.
FEBRUARY TERM, 1880. 461
HlUf*. The State.
"If the prisoner killed the deceased in self defense, or if the prisoner
killed the deceased in defense of his wife's virtue against an attempt
then and there being made on the same, and actually in progress, and
under such circumstances as that such killing was actually and abso-
lutely necessary to prevent such injury, and under such circumstances
as to constitute an instance standing on the saime footing of reason and
justice as those of justifiable homicide, enumerated in the Code, you
would be authorized to find him justifiable, and should acquit him.
But, as before stated, if at that time his wife was in a place of safety,
and was actually safe, the prisoner would not be thus justified; or if
you should find, in view of all the evidence, that such killing does not
constitute an instance standing on the same footing of reason and jus-
tice as those of justifiable homicide enumerated in the Code, he would
not be justifiable.
• ■•> >**•*•«
" Whether there was an interval sufficient for the voice of reason
and humauity to be heard, is a question for you to determine. Each
case depends on its own peculiar facts, and it is for you to say whether,
under the peculiar facts of this case, there was here an interval suffi-
cient for the voice of reason and humanity to be heard.
"The gre^itness of a provocation and other circumstances are to be
duly considered in determining the question, but the principle should
not be unreasonably extended.
"The law does not prescribe any particular duration of time in which
an intention unlawfully to take life, or to do a criminal act resulting in
death, shall subsist in the mind in order to constitute malice. There
must be deliberation in order to make express malice — that is, a suc-
cessidn in mental action, the unlawful intention— and then following
after the formation of that intention, the execution or carrying out of
the same. If there was time for deliberation; if there was an interval
between the assault or provocation given and the homicide sufficient
for the voice of reason and humanity to be heard, under the circum-
stances, in the conscience of a reasonable man, then it would be the
duty of the prisoner to hear that voice; and if he had, and persisted in,
an unlawful purpose to kill through er during such an interval, there
would be express malice; but if there was not such sufficient interval,
there could be no express malice.
"The effect of an absence of express malice or cooling time, if all
the other conditions of guilt appear or be made out in proof, would be,
not to justify the prisoner, but to reduce the offense to manslaughter."
The judge then charged In the usual terms upon the questions of
reasonable doubt, impeachment of witnesses, the prisoner's statement,
and the form of the verdict.
The jary fonnd the defendant gailty of murder, and
recommended that he be imprisoned for life. He moved
for a new trial, whieh was refused, and he excepted.
462 SUPREME COURT OF GEORGIA.
HUl cv. Tb€ State.
In connection with the second division of the decision,
subdivision (d), it is only necessary to add that the coart
refused to charge, at the reqnest of defendant's connsel,
that " by virtue of the constitution of 1877, the jury in
this case are the judges. of the law as well as of the facts."
In connection with the third division, subdivision (a), of
the decision, it may be stated that one of the grounds of
the motion for new trial was because the defendant was
insane at the time of the killing, and had been so ever since.
This ground was supported by affidavits tending to show
emotional insanity; that the especial form in which this
insanity exhibited itself was in his social relations, and par-
ticularly in his absolute belief in the purity of his wife and
in the fact that she had been greatly wrong^ed — and that,
too, after bearing all the evidence in the case.
For the other facts see the decision.
Gartbell & Wright; R. S. Jefferiks; Hopkins &
Glenn ; W. Bray ; W. T. Moyers, for plaintiff in error.
B. H. Hill, Jr., solicitor general; Hoke Smith; J. G.
Jones; £. Rooh, for the state.
Jaokson, Justice.
The defendant was indicted for the murder of John R
Simmons in the city of Atlanta on the 29th day of Jan-
uary, 1879 ; he was found guilty, and made a motion for a
new trial ; the presiding judge overruled the motion on all
the grounds therein stated, and error is assigned in this
court on each of these grounds.
The question before us is, did the presiding judge so err
on any of these grounds as to authorize this court to set
aside the verdict of the jury and order a new trial, notwith-
standing the approval by the judge who tried the case of
the verdict rendered by the jury ? This is a court of law.
The questions made by this record are pare questions of
law. With the policy of the law we have nothing to do.
It is our duty to enforce it as we find it written. Syospft'
FEBRUARY TERM, 1880. 4G3
HUltv. 1 he State.
thy for the dead, slain in the flower of youth, and • senti-
ment for the livinji^, who slew him under circumstances
which appeal to all hearts for kindness and consideration,
mnst hoth be repressed, and impartial justice according to
law must reign here, and reign alone.
Anxious to guard every right of the defendant on the
one hand, and to vindicate the serene and sober majesty of
law on the other, we have scrutinized closely every line of
this voluminous record of more than five hundred pages,
and have examined the entire case with that care and delib-
eration which its importance to the defendant and to society
demands. The conclusions reached are the result of much
tinie devoted to the case and much anxiety to discover
truth and to apply the principles of law to the truth dis-
closed by the evidence set out in the record. Questions in
dispute in regard to the law are to be found in tlie motion
for a new trial, and to the consideration of these questions
we address ourselves.
When analyzed, the grounds taken in the motion for a
new trial may be classified under four heads : first, alleged
errors of the court below in respect to the jurj' ; secondly,
in the charge to the jury ; thirdly, in regard to newly dis-
covered testimony; and fourthly, in upholding the verdict
as authorized by the law and the evidence.
1. In respect to errors of the court in overruling the mo-
tion for a new trial on the several grounds touching the
conduct of the jury, it is assigned as error first, that a new
trial should have been granted because Myers, one of the
jury, had formed and expressed an opinion on the guilt of
the defendant prior to the trial, and was thereby discjuali-
fied.
This assignment of error rests on the following aftidavit
of J. B. Red wine, Esq.: *'...! asked him where
he was going. He answered he was summoned as a juror
in the Hill case to be called that day, but added that they
wouldn't take him, or that he knew he wouldn't serve, as
he had already made up his mind as to what he would do.
404 SUPREME COURT OF GEORGIA.
Hill iw. The SUte.
— -
I then asked him how his mind was made up, for or against
Hill ; ho refused to answer. I then put the substance of
the statutory questions, and he said he could not answer all
of them rightly. I inferred he was prejudiced one way or
the other. I was engaged at the time and do not recollect
distinctly all that occurred after this. I know I asked hiin
if he knew John R. Simmons and Sam. Hill. I know he re-
plied he knew one and not the other ; which one he knew
I cannot distinctly recollect, but the impression on my
mind now is, and has since been, that he knew Simmons
and not Hill. From his manner and from what he said (of
course I cannot recollect all) I received the impression that
he was prejudiced against Hill. William M. Turner, my
oiBce boy, was present at the time."
If this affidavit had not been explained, it would be too
vague and uncertain to predicate a reversal of the judg-
ment upon it ; but it is answered by the juror in a deposi-
tion made by him, who swears positively that the conversa-
tion had with Kedwine was to induce the impression tliat
he had made up his mind so as to get out the report and en-
able him to keep oflf the jury, and further, that he had made
up no opinion whatever but was perfectly impartial. Be-
sides, it further appears from the record that this juror was
one of the last two to concur in the verdict, and has made
a deposition in belialf of defendant on which newly discov-
ered testimony is predicated ; 59 Oa.^ 308, covers tbe
point completely.
(a.. It is also insisted that Rich, one of the jurors, con-
versed with his wife apart from the other jurors pending
the trial ; but that conversation had no reference at all to
the case as shown by the depositions of Rich, the juror, and
of the bailiffs in charge of the jury. Moreover, it seems that
counsel for the defendant assented to the permission given
by the court 'that such conversation should be had, and 80
the judge distinctly certifies. 45 Oa.^ 282 ; 47 /J., 598.
(J). Further, it is objected that since the verdict it has
been ascertained that Rich is an unnaturalized foreigner.
FEBKUARY TERM, 1880. 405
Hill tw. The ^tate.
There is no doubt that Rich was born in Hungary.
Whether ever naturalized or not appears somewhat doubt-
ful from the record. The onus is on the defendant to show
that he is not a citizen, especially after verdict. Rich
thought that he was naturalized in Albany, and took an
oath there on which he voted some years ago. He has been
in the United States ever since he was thirteen years of age,
and his father ever since 1808. He may or may not have
been naturalized ; possibly he was. Revised Code U. S.,
§2167.
Be that as it may, the objection comes too late. In Cortz
V8, The State^ 19 Ga.^ 628, a case of homicide, this princi-
ple was ruled, and also in Epps vs. The State, 19 Ga., 102
It is a challenge propter defectum^ and must be taken be-
fore verdict. See also 40 Ga,^ 253; 3d Blacks. Com., 361;
20 Oa., 752; 28 G^a, 439; 33 Ga., 403; 39 Ga.,\\%\ 47 Ga.,
538; 53 Ga., 428; 57 Ga., 329; 60 Ga,, 55, cited by defend-
ant in error.
(c.) It is also objected that Randall, one of the jurors,
when that body was polled, did not signify his assent to the
verdict as required by law. Randall replied to the queF-
tion, "is that your verdict?" "I agreed to it." This
answer was objected to, and the court again propounded
it, when he said, '•! agreed to it, J suppose." The court
said that the juror was not asked for a supposition, but for
what the juror knows. "Is this your verdict or is it not?"
The answer was, "I suppose it is, if that is a proper answer
to your question." "You are an intelligent man, Mr. Ran-
dall; please answer me?" "Yes, sir, I agreed to it," was
the answer. And thereupon the verdict was received over
defendant's objection.
The practice is not uniform in the United States on poll-
ing the jury. In some states it is not allowed ; in others it
rests in the discretion of the judge, and at common law it
seems to have existed in another form — 2 Hale's P. C, 299;
Bishop's Crim. Pro., 830; 1 Chitty, 635. In this state the
right is recognized, the object being to ascertain before the
466 SUPREME COURT OF GEORGIA.
UUlvs. The Stale.
public and prisoner whether the verdict agreed on in the
jnry room is still the unanimous verdict of the jury — 31
Ga., 611-661; Campbell cfe Jones V8, Mur ray, August 7,
J 878, not yet reported. The question is, did the juror still
assent thereto? From the narrative above given, the pre-
siding judge held that he did, and we think that, whilst
the juror hesitated, yet he then and there assented and
recognized the verdict as his.
The affidavit afterwards taken by him cannot be consid-
ered— Bishop's Crim. Pro., 830. He cannot impeach the
verdict after its record — 17 Ga., 146; 9 Ga,, 121; 49 <?a.,
622; 59 Ga,, 309.
Indeed, the first answer of the juror, if not sufficient of
itself to show present assent, without any other questions
or answers, was made plain by the last ''yes, sir, I agreed to
it;" as much as to say, ''yes, sir, it is my verdict, for I
agreed to it." The case in 6 Wisconsin, cited by p'aintiflf
in error, is much stronger than this. It shows almost con-
clusively dissent to the verdict.
2. We come now to consider the errors assigned upon
the charge and refusals to charge.
The portions of the charge excepted to seem to have
been cut in segments from the body of the charge. With-
out stopping, however, to see whether the whole segment
embodies more than one point, and whether in that view
any of them can be reviewed under the rulings of this
court in similar cases if strictly applied, let us analyze them
to see what real points are relied on, as well as we may,
from the wholesale manner in which they are presented.
The main point made, as it strikes us, is that the court
did not fairly submit to the jury section 4,334 of the Code,
which enacts that "all other instances which stand on the
same footing of reason and justice as those enumerated,
shall be justifiable homicide." Defendant insists that the
court should have turned the jury loose upon this section,
and should have instructed them that, "where a man kills
another for having criminal intercourse with his wife, it is
FEBRUARY TERM, 1880. 407
Hillr«. The State.
for the jury to decide whether the killing stands upon the
same grounds of reason and justice as those enumerated
in the Code, and if they so believe, it would be a case of
justifiable homicide." The judge declined to give this
request, but instructed the jury that "there is no prin-
ciple of reason or justice enumerated in the Code by
which, after an injury shall have been consummated, no
matter how great and no njatter how grievous that in-
jury may be, the party injured would bo justified in
taking vengeance into his own hards and in deliberately
seeking out the wrongdoer and slaying him;" that "the
existence of such temptations, provocations or passions,
might be looked to for ascertaining motives, or to inquire
whether the killing was intentional or malicious, but would
afford no justification for the killing if perpetrated for the
mere purpose of vengeance, punishment, or vindication;"
thnt "one of the principles of reason and justice on which
a homicide can be justified is this : that such homicide was
committed as a defense against an injury, to prevent an in-
jury of the serious kind described, or to stay its progress.' *
So that the issue is plainly presented, whether homicide to
be justifiable must be in defense of wrong or to prevent its
consummation — in the language of the judge, "to stay its
progress" — and whether if conmiitted for a past wrong, dis-
tant enough for prisoner to, cool — even adultery with the
slayer's wife — the killing is justifiable in law.
The question turns on our Code. What are the previous
sections referred to in section 4334? They are sections
4330, 4331, 4332 and 4333; and so far as at all applicable
here they read as follows in giving the instances of justifia-
ble homicide : " In self-defense, or in defense of habitation,
person or property, against one who manifestly intends, or
endeavors, by violence or surprise, to commit a felony on
either; or against any persons who manifestly intend and
endeavor, in a riotous and tumultuous manner, to enter the
habitation of another for the purpose of assaulting or offer-
ing personal violence to any person dwelling or being
468 SUPREME COURT OF GEORGIA.
Hill v«. The State.
therein. A bare fear of any of those offenses, to prevent
which thp homicide is alleged to have been committed, shall
not De sufficient to justify the killing. It must appear that
the circumstances were sufficient to excite the fears of a
reasonable man, and that the party killing really acted under
the influence of those fears and not in a spirit of revenge.
If, after persuasion, remonstrance, or other gentle measares
used, a forcible attack and invasion on the property or
habitation of another cannot be prevented, it shall be justi-
fiable homicide to kill the person so forcibly attacking and
invading the property or habitation of another ; but it must
appear that such killing was absolutely necessary to prevent
such attack and invasion, and that a serious injury was in-
tended, or might accrue to the person, property or fanaily
of the person killing. If a person kill another in hu de-
fense, it must appear that the danger was so urgent and
pressing at the time of the killing, that in order to save his
own life, the killing of the* other was absolutely necessary;
and it must appear, also, that the person killed was the as-
sailant, or that the slayer had really and in good faith en-
deavored to decline any further struggle before the mortal
blow was given."
These are the enumerated instances where one may kill
another and be justified in doing so; and the legal question
is, does the principle of defense, defense of some sort, enter
into them all ? and can any case stand on the same footing
of reason and justice as these enumerated cases do, unless
defense of some sort — the prevention of some impending
and pressing wrong — enters as an element therein ? Judge
Hillyer charged that defense against some urgent and press-
ing danger must have operated on the mind of the defend-
ant, or he was not justifiable ; or, to put the question on
the case at bar, he charged, in effect, that defendant must
have killed Simmons to prevent him from attempting or
consummating an impending adultery with his wife, and
not to avenge a past adultery with her, in order to justify
the killing. Mark, the question now is not the reduction
FEBRUARY TERM, 1880. 469
I— - — - _ _ _ ^ ^ ^ ^^ — ^
Hill V*. Tne Stiite.
of the crime from murder to manslaughter, but the abso-
lute and unconditional justification of the killing ; in other
words, that sucii killing is no offense at all.
It will be seen by merely glancing at the quotations from
the Code of the enumerated cases of justifiable homicide,
that each of them contemplates defense against immediate
and pressing danger. It is defense of self ; it is defense of
habitation, property or person ; it is defense against one
who manifestly intends or endeavors, by violence or sur-
prise, to commit a felony on either ; it is defense against a
mob violently and riotously intending and endeavoring to
enter one's house to assault or wrong some person therein ;
it is defense against real, imminent, impending danger ;
a mere fear of any offense, to prevent which the killing is
done, shall not justify it ; the circumstances must be such
as to excite reasonable fears in a rational mind, and the
person killing must act under the influence of such fears,
and not in a spirit of revenge ; not only must it be in de-
fense, but it li^ust be absolutely necessary to prevent the
attack or invasion ; and even in self-defense, the strongest
of all defenses, the danger must be so urgent and pressing
at the time of the killing, that in order to save one's own
life, the killing was absolutely necessary.
So that our law broadly separates the act of deliberately
seeking another and slaying him for past wrongs, however
heinous they may be, from the act of slaying another to
prevent his doing a present wrong, or future wrong immi-
nently impending. Whenever done to avenge the past, it
is not justifiable ; when done under pressing necessity to
defend life, or limb, or wife, or child, or habitation, or
property, against felonious attack on either, it is justifiable.
Therefore, our law, in common with the laws of all civil-
ized states with which we are acquainted, forbids vengeance
for the past, but permits defense against the present and
the immediate and pressing future; and therefore the pre-
siding judge did not err in the refusal of the request to
charge, or in the charge given on this point.
470 SUPREME COURT OF GEORGIA.
Hill vs. The State.
(a). And this, we think, disposes of the eight first grounds
of this motion. Some criticism is made in regard to the
alhision in the charge to the pardoning power and where it
is lodged, to the caution of the judge to tlie jury not to take
law from counsel in the teeth of the exposition given by
the court, to the allusion to man and wife living in virtue
and peace, to the argumentative tendency of the charge, and
to other such matters ; but in the eight grounds reviewed,
we see no substantial errors in matters of that sort, or in
other respects.
In one of them, exception is taken to the judge's exposi-
tion of the law of manslaughter as contradistinguished from
murder, and the application of that law to this case. The
court told the jury, substantially, that if Hill came upon
Simmons suddenly and without premeditation, and his
passions were aroused thereby, and in his (Hill's) belief
Simmons had a pistol, and enraged on seeing the adul-
terer for the first time, after his knowledge of his guilt,
he shot him and killed him, then the offense would
not be murder, but manslaughter; but if the attack
was premeditated and deliberate, and not upon a sudden
burst of uncontrollable passion, then it would be murder.
Such we understand to be the law ; and as HilPs exclama-
tion when he shot implied that he thought Simmons had a
pistol, the allusion to the prisoner's belief that he did have
one is not without evidence to support it.
(J). In respect to the comparative weight of the evidence
and the statement, the charge is identical with that given
in the case of Cox vs. The State^ decided last term, and is
controlled thereby. So the ninth ground is not good.
(c). Nor do we think that the charge is partial, or argu-
mentative, or that it intimated any opinion on the facts. It
is forcible and strong, clear and to the point ; it gave the
law of the case to the jury, but only the law. More it did
not do ; less it ought not to have done. The tenth ground
is not, therefore, sound.
{d). The constitution of 1877 does not alter the law in
FEBRUARY TERM, 1880. 471
Hill t:«. The State.
regard to tlie right of the jury to be the judges of it inde-
pendently of the indtractions of the court thereon. It sim-
ply re-enacts, in identical language, the provisions of the
Code thereon. It emphasizes it by inserting it in the con-
stitution; but it put it there subject to the construction
which had been put on the same words in the Code. Had
the convention of 1877 intended to change the construction
of those words, it would have altered them. On the con-
trary, as we understand it, it expressly declined to do so.
Therefore the court was righc to refuse the request em-
bodied in the twelfth ground, and the eleventh was passed
upon with the first eight grounds.
8. So we come to the newly discovered testimony, or the
grounds set out in the amendment to the motion. That in
regard to the competency of Rich as a juror has been already
considered. That of Myers in respect to the letter written
to Mrs. Hill and its authorship by Simmons, is merely cumu-
lative, and would not probably change the verdict if the law is
administered, because, if Simmons did write it, it was nearly
two weeks prior to the killing, and did not, and could not,
take the case without the rule that to reduce the homicide
from murder to manslaughter, there must not be time for
passion to cool and reason to resume her sway over hot
anger and sudden fury.
(a.) The counsel on the trial before the jury differed in
respect to putting in evidence of insanity, and decided not
to do so. The plea, if it had been put in, would not have
been supported by the evidence. If the defendant rested
under a delusion in regard to his wife's virtue, and there-
fore slew the deceased, it would not protect him in the
commission of the crime — 31 Ga,y 479.
If he be now a lunatic, he c&nnot be hurt. He ought to
be, and will be, removed from the penitentiary to the asy-
lum. The same lunacy might induce him to slay others for
a like offense with that for which Simmons lies in his
grave. Confinement somewhere may be essential to pre-
vent the repetition of the deed on another.
472 SUPREME COURT OF GEORGIA.
Hill «w. The state.
4. Is this verdict supported by the evidence and is the
defendant guilty of murder? The evidence shows deliberate
revenge. The wrong was a grievous wrong, but the ven-
geance therefor was conned over and calculated for weeks.
The prisoner's statement alone, stripped of all inferiority to
evidence, and admitted to be the whole truth, shows a case
of deliberate murder. Hence the last refuge of counsel,
the change of base, the desire to set up the plea of insanity
on a new hearing.
But what are the facts? The wife of Hill was introduced
to Simmons as a lewd woman, and in company with lewd
women; as a single woman and not a married woman; as
Miss Etheridge and not Mrs. Hill. She was introduced
without his seeking her. One of her companions in sin
sent for him. He took her for a woman of the town, and
so he had cause to believe her to be from her company and
conduct. The recurd shows that she had been enticed from
allegiance to her husband — if indeed her own disposition
needed seductive influences to lead herastray— weeks, if not
months, before Simmons knew her. He met her thereafter
at balls where virtuous women did not go, and at places to
name which chastity would blush. He did discover that
she was a married woman and was HilPs wife, but at what
point of time during their intimacy the record does not
show. When he made that discovery, he should have
stopped that wild career of sin, which he seems to have en^
tered under the lead of married men; but he did not. On
the 8th of December, 1878, in company with another man
and with Simmons, she left home, and her husband, about
whose affection for her and anguish at her departure there
can be no doubt, recovered her within three days through
the' instrumentality of a lewd woman and her knowledge
that Simmons knew her lodging, and who seems to have
induced her return to Hill.
Her husband condoned the past guilt of his wife^ as he
had the right to do, and restored her to his home. He
moved her to the country, eight miles from Atlanta, and
FEBRUARY TERM, 1880. 473
Hill vs. The dtate.
aboQt the 16th of Janaarj, Simmons was Been to pass and
repass once that country place in a buggy, and about the
same time a note was received by her said to be written by
him, but in a disguised hand, and Hill received a letter from
her begging him to come to her, but without stating any
particular reason. Thenceforward Hill seems to have de-
liberately intended to wipe out his wrongs in the blood of
Simmons, and thirteen days thereafter, on the 29th of Janu-
ary, just after Simmons had been shaved in the barber's
shop of the National Hotel, and was at the counter of the
bar-room, about to settle for a drink he had taken, Hill
stepped up behind him, and with some profane or vulgar
exclamation prefixed to the remark, "shoot, you've got it
to do,'' as Simmons turned to see what or who it was, shot
him through the face and head, and about the last excla-
mation of the dying man was, "he shot me for nothing !"
The dead man had no chance for his life. Hill may have
thought Simmons was armed and from his exclamation it
seems that ho did think so; but Simmons had no weapon
drawn and was allowed no time to draw one if he had it.
If this be not murder what can make a case of murder,
wherever in the past there has been great provocation !
Hill in his statement admits the killing for revenge and
puts his defense there. He says that he would have killed
another paramour of his wife, but that he was not so guilty
as Simmons. The legal question, and with that question
only it is our duty to deal, is narrowed, therefore, to this :
Is a man justifiable in deliberately hunting down another
who committed adultery with his wife nearly tv^o months
before the homicide, and thirteen days before rode past the
house where she was and wrote to her about the same time,
and in deliberately shooting him down without a moment's
time for defense, when he knew at the time of the killing
that the wife had left his home and that others were guilty
also, though not so much so in his opinion ? or do these
facts reduce the homicide to voluntary manslaughter ?
There cannot be found a case in any law book with
474 SUPREME COURT OF GEORGIA.
Hill vti. The State.
«to — . — . — -
which we are familiar that approximates 8uch a conclusion.
It is only where the danger is so imminent and immediate
that one cannot appeal to the law for help, that in civilized
society he can help himself.
It is true that where virtuons wives or sisters or daugh-
ters are insulted, jurors are slow to convict the avenger of
the affront, though time enough had elapsed to put passion
under the sway of reason ; but even in such cases no court
has ever held or can hold, without becoming instead of ex-
pounders makers of the law, that such verdicts are in ac-
cordance with the law. The Augusta case of shooting at
another, in our own reports, is wholly unlike this. There
no breath of suspicion soiled the purity of the wife. The
very evening before, the afifront was given ; and the insulter,
the very next morning at breakfast, had the audacity to
take his seat at the same table and immediately in front of
the insulted woman and the guardian of her virtue ; and it
was in that case that this court ruled that the jury might
consider whether it stood on the same ground of reason as
the cases enumerated in the Code. The wife was not only
pure, but present ; passion, just kindled the night before,
flamed up beyond control at the sight of the aggressor, who
was not hunted down to be slain, but who obtruded his
presence before those he had wronged.
In this case Mrs. Hill was safe eight miles in the conn-
try ; and while thus safe, Simmons was sought, was found,
and was slain without a moment's warning. ^
We forbear to detail further the facts of this case made
by this record. We would not unveil the folly and frailty
of the unhappy woman, whose conduct has robbed her hus-
band of home and of liberty, and one of her paramours of
life ; nor would we expose the haunts of vice uncovered by
this evidence, and the men who frequent them. We add
bat a single remark : If men will take the law into their
own hands, become themselves the judges of their own
cases, and their own sheri£E to execute the sentence they them-
selves pronounce, they must be certain that they judge the
FEBRUARY TERM, 1«80. 476
Tlie CeotnU RiUlroftd Ca« ««. Brioaoo, by next friend.
■ : - ' " »■
case according to law and execute the sentence which that
law pronounces, or they mnst suffer the consequences of
their mistake of th|3 law. Homicide for revenge of past
offenses, however heinous, deliberately planned and pre-
meditated, and carried into execution after reason has had
time to assert her supremacy over passion, is murder ; and
he who judges that in his own case it is not, and executes
sentence in such a qa^e on a lellow-being, must suffer the
penalty which the law imposes upon the murderer*
Let the j udgment be affirmed.
Th9 Cbntsai* Bai^boad Company vs, Bbxsbov, by next
frien^.
1. A minor, being damaged in his person, may bring suit to recover
for any permanent injury whieh he has sustained reaching beyond
his majority, whilst the ffUlier may sue for any trespass done or
damsgs sustained whereby h^ loj^^s the services of the child, as also
for any expense incurred resulting from such injury.
3. Although one railroad may be leased to and operated by another, by
which the latter makes itself = responsible for acts done on the road
IflKased, yet neither loses its identity, aiid any tort committed upon
the line of the one or the other should be so alleged and proved.
Especially is this true where both roads are constructed through Uie
territory of the same county.
8. Where an injury is committed by a railroad, the presumption is
always against the road, yet it may rebut that presumption by
showiiiig that its agents have ex,ercised all ordinary and reasonable
care and diligence to avoid the injury; or that the damage was
caused by the plaintiff's own negligence; or that the plaintiff, by
ordinary care, could have avoided the injury to himself, although
caused by the road's negligence. If both the plaintiff and the road
are at fault, the damages^ara to be dimiuish^d in proportion to the
fault attributable to the pl^ntiff.
Torts. Bailroads. Minors. Parent and child. Damages.
Before Judge Snead. Burke Superior Court November
Adjourned Term, 1878.
Reported in the decision^
VM-SO
476 SUPREME COURT OF GEORGIA.
The Central Ballnwd Co. w. BrioaoOp hj next friend.
, A. R. Lawton; J. J. Jones, for plaintiff in error.
H. 0. GusBON ; £. L. Bbinsok ; A. AL Rodoebs ; Wm.
Gibson ; M. P. Cabboi«l, for defendant.
Cbawford, Justice.
The Central Railroad and Banking Company was sued
by James Brinson, as next friend of Jefferson Brinson, to
recover damages for the careless mnning of its train of cars
over him, whereby he lost his right foot. To this snit was
filed the plea of the general iistie of fwt guilty^ and a
special plea in bar which was, that James Brinson, the
father of the plaintiff, hi^d bronght his individual snit for
the Eame cause of action, and for the same injury which
was then pending and undetermined in the same court.
On motion of plaintiff's counsel, this special plea was
stricken and the cause was tried under the general issue
alone. Upon the trial the jury returned a verdict for the
plaintiff for the sum of ten thousand dollars ; a new trial
was moved upon various grounds set out in the record,
which was refused by the court, and the defendant ex-
cepted.
The first ground in the defendant's motion was ^ because
the court erred in striking out, on motion of plaintiff's
counsel, the plea of defendant which set up as a defense to
this suit, the pendency in this court of another suit by
James Brinson, the plaintiff, for the same injury and for
the same cause of action against the same defendant."
1. A minor, being damaged in his person, may bring suit
to recover for tLUj permanent injury which be has sustained
reaching beyond his majority, whilst the father may sue for
any trespass done or damage sustained whereby he loses
the services of the child, as also for any expense incurred
in and about the healing and restoring of the said child to
health. The striking out of the special plea, therefore, was
not error. Beeves' Dom. Bel., 423-4-5; 31 Penn., 87S;
15 6a.j 349.
FEBRUARY TERM, 1880, 477
The Ceotral Railroad Co. vt. Brinson, by oext friend.
2. The second ground of error complained of was the refu-
sal of the court to charge as follows : " If the proof satisfies
yon that this accident happened on the line of the Augusta
and Savannah Railroad, plaintiff cannot recover on his de-
claration in this case, which alleges that the injuries were
done on the road of the Central Railroad and Banking
Company of Georgia, the two corporations being separate
and distinct."
The declaration of the plaintiff alleged that the Cen-
tral Railroad and Banking Company, by the careless and
negligent manner of running a certain engine and train of
cars over their road in said county^ did run over and crush
the foot of the plaintiff, thereby causing him to lose the
same. The proof clearly established the fact to be that it was
not done on the Central Railroad, but on the Augusta and
Savannah Road. These railroads are two separate and dis-
tinct legal entities, passing over and occupying different
parte of the territory of the county of Burke, and suits
against them should recognise that fact. Although the one
may be leased to and operated by the other, thereby making
itself responsible for acts done upon the road which is
leased, yet neither loses its identity, and any tort committed
on the one or the other should be so alleged and proved.
This becomes the more necessary in view of the fact that to
allege that the injury done was done upon the Central Rail-
road "in said county ^^^ without other or further description
of the particular locality, would not be, by the record, a bar
to another action for the same injury committed on the
Augusta and Savannah Railroad. This request, therefore,
was one which the defendant had a right to ask, and which
should have been given by the court; the effect of which
would have been but an amendment to the declaration
thereby harmonizing the pleadings with the proof.
3. The other grounds upon which the plaintiff in error
rests its motion for a new tridl, consist in charges given and
charges refused, upon the different theories of the respec-
tive parties as to the law governing the case, two of which
need only be cited here.
478 SUPREME COURT OF GEORGIA.
«
The Central Railroad Co. v$. BriVBon, bj next friend.
■ ■ ■■....■ Ill
The coansel for the defendant below requested the fol-
lowing charge in writing, which was refused by the court :
^' If the railroad company or its agents were negligent, or
failed to do all that they ought to have done on that ds^y
and on that train/ yet if the plaintiff, Brinson, could have
avoided the accident to himself caused by this negligence,
by ordinary care on his part, he cannot recover."
The court, upon the request of counsel for the plaintiff
below, gave the following charge to the jury : " If the plain-
tiff was not free from fault, yet if defendant, in the exercise
of due care, could have prevented the Injury, they are re-
sponsible for all damages that accrued to plaintiff/'
The first question here presented to this court is, was the
defendant below entitled to the charge which it asked 1
and the second, should not the court have refused the
charge given at the request of the plaintiff?
Bailroad companies are liable for injuries done by them
to persons and to property, and whenever one has been
shown to have been committed, the presumption of the law
is against them, and the burden is on the particular com-
pany to show that its agents have exercised all ordinary and
reasonable care and diligence to have avoided that injury.
This liability, however, has been guarded by qualifications
which are in the highest degree important to these compa-
nies, and in the absence of which oftentimes they might
suffer great injustice.
The first of these qualifications is, that ^^ No person shall
recover damages for an injury to himself, or his property,
whei*e the same is done by his consent, or is caused by his
own negligence."
The second is, that ^^ If the plaintiff, by ordinary care,
could have avoided the consequences to himself caused by
the defendant's negligence, he is not entitled to recover*"
Upon the subject of the liability, and the presumption of the
law being against the railroads wherever damages are shown,
see Code, §3033. As to tlie qualifying clauses, see Code,
§§8034, 2972.
Thus it will be seen that, although the preeumptiou is
FEBRUARY TERM, 1880. 479
The Cfditnl Bailrad Co. nc. Brlnson, by next friend.
always against the company, yet it may rebut that presump-
tion and relieve itself of damages by showing that its agents
have exercised all ordinary and reasonable care and diligence
to avoid the injury ; or it may show that the damage was
caused by the plaintiff's own negligence ; or it may further
show that the plaintiff, by ordinary care, could have avoided
the injury to himself, although caused by the defendant's
negligence. Upon either of these grounds the defendant
may rest his defense.
But these rales of law will not cover the facts of every
case, for it may be that both the plaintiff and the agents of
defendant are at fault, and when they are, then, whilst dam-
ages may be recovered, they are to be diminished by the
jury in proportion to the default attributable to the plain-
tiff for his want of ordinary care in avoiding the injury to
himself.
The defendant in this case sought to rest its defense upon
the qualifications provided by law for its relief from dam-
ages, where the injury resulted from the plaintiff's own
negligence, and all of which he might have avoided by
ordinary care. Under the facts as shown by the proof, we
are of the opinion that the request by the defendant should
have been given to the juiy, and that the court erred in not
doing so. As to the charge which was given at the request
of counsel for the plaintiff, it necessarily follows that if the
former should have been given, the latter should have been
refused.
The ruling of this court upon these questions has been
Very decided, imd may be found in 38 Oa.^ 409, 431 ; 42
7 J., 827; 63 7*., 12; 60 7J., 667.
It was insidted upon by the counsel for the defendant in
error that these rules of law were given in the charge of the
judge to the jury. Whilst the charge does contain the geh-
ieral legal instructions applicable to the matters involved,
the requestd given and rejected were not in harmony there-
with, and the defendant was entitled to have the clear and
naked legal qualifications upon its liability put before the
480 SUPREME COURT OF GEORGIA.
Oliver w. The State.
jury, that the facte when applied thereto would have en-
abled them the better to understand the relative rights of
the respective parties, as defined and prescribed law.
Judgment reversed.
Oliyeb vs. The State of Georgia.
[Thli ease was argaedatthe last term, bat was esrclered re-argaed at the present tcrm.l
Where an execution lias on it a levy on sufficient personalty to satisfy
it, and no disposition thereof appears, the presumption is that
theJL/a, was satisfied.
Levy and sale. Executions. Presumptions. Before
Judge Wbioht. Decatur Superior Court. November
Adjourned Term, 1878.
Reported in the decision.
Fleming & Russell; Jko. E. Donaldson; Gubley &
Thomas, for plaintiff in error.
BowEB & Cbawfobd, for defendant.
Wabneb, Chief Justice.
This case arose in a contest between Oliver and the state
over a sum of money brought into court by Oliver, under a
Ji.fa. owned by him, raised by sale of the proi>erty of
Thomas F. Hampton.
Oliver's J?. /a. against Hampton is ^ated 10th January,
1859, but is based on a judgment dated 3d of December,
1857.
The state's fi. fa, is dated 14th April, 1874, issued by
comptroller-general against W. E. Griffin, tax collector,
and Hampton et aZ., as securities on tax collector's bond,
dated 2l8t January, 1873.
FEBRUARY TERM, 1880. 481
OliTer «•. Tb« State.
The money being in coart, the state, by its counsel ,
moved that the money be paid to the state as a prior lien.
Oliver, in answer to the motion, set up, as reasons why
the money shoald be awarded to him on \i\AJi.fa.j the fol-
lowing :
1. That the money was raised by him ont of Hampton's
property, under hisj^. fa.^ which was the oldest and the
prior lien.
2. Because the state's^. /a. is not for taxes due the state,
but was for default of W. £. Griffin, tax collector, in fail-
ing to settle his accounts with the comptroller-general as re-
quired by section 909 of the Code.
3. Because the state's^, fa. is not for taxes due the state
by Hampton, but was against him as a mere security for
W. E. Griffin, tax collector.
4. Because on the 21st January, 1873, at the time Hamp-
ton signed the bond, he was clerk of the superior court of
Decatur county, and for that reason it is, as to him, illegal
and void.
5. Because Hampton signed the bond with the understand-
ing and agreement with his principal. Griffin, that R. H.
Whitely should also sign it, before it should be filed and
approved, which was known to the ordinary approving it,
and that Whitely did not so sign it as a co-security.
The presiding judge struck the last ground on demurrer,
and upon hearing all the other grounds on the motion
and answer untraversed, awarded the whole of the fund
in court to the state. Whereupon Oliver excepted, and al-
leges all of said rulings as error.
The defendant in error insisted, on the argument here,
that the judgment t>f the court below was right, whatever
view might be taken of the other questions in the case, be-
cause it appears on the face of Oliver's fi. fa.^ which waa
claiming the money, that it had been levied on personal
property of one of the defendants therein of sufficient
value to satisfy the same, which had not been accounted
for.
The^./a, is for the sum of $374.24 besides interest. It
SUPREME COURT OF GEORGIA.
appears from th6^,ya. m the record which was in eridence
before the court olaiming the money, that it was, od the ftth
of Angnet, 1874, levied on twenty^ balee of cotton aa the
property of one of the defendants therefn, which levy U
not accounted for by any evidence in the record. The
legal preenmptjon ^erefore is (in the absence of any evi-
dence to the contrary), that the execution was satisfied and
not entitled to claim the money in coart, and we affirm the
jodgment of the court npon this fi^and, inssranch as we
are not all satisfied as to the proper construction to be givea
to the statntCB in rej^rd to the state's priority of lien, on the
statement of facts as disclosed in this record.
Let the jndgment of the court below be affirmed.
AlMXW tW. WlLBOK.
1. The lien of s landlord on the crop made for rent. Is Buperlor to w
tgreement between the lemml iiml one wbo rultiVBled the prmiisca
vith him on sharei, Ihni the laUer sijould bftvc all tbe cotton raised
thereon.
S. Itie tmue, npon the iriitl nf n r1»im. Is whether or not ihe propetQ
iBBuhjecL It iainmatoritLl whether there U other propcrtj enbjecl
Landlord and tenant. Contracts. Lien. Claim. Ev-
idence. Before Jndge Wanmr. Webster Snperior Conit.
April Term, 1879.
To the report conlained in the decision it ie only neces-
wry to add the following : Claimant offered to prore that
the sheriff levied on tliia cotton by direction of the land-
lord; that the defendant in the^./a. stntcd to the ehetiff
that he had no intefCBt in the cotton, and offered to point
out other property w)>ieh wus enbjcct ; and that the sheriff
refused to levy on -inch property, but seized this cottoA.
The court held this irrelevant to the issue in a claim ease,
and error is assigned on eacli ruling.
FEBRUABY TERM, 1880. 483
AJiCoa M. Wltson.
J K. WasBiLL, for plaintiff in error.
€>iMMOKS & 8iMM0K9^ for defends t.
SacksoSj Jnetice.
A distress warrant was levied on three bales of cotton on
the premises rented by Alston, Sr., from Wilson. Alston,
Jr., claimed them and the jury fonnd the property snbject.
The evidence is to the effect that the two Alstons ctiltivated
the place on shares, and the claimant was to have the cotton
raised on it, of which there were six bales in all, three of
which were levied on.
The lien for rent, on the proceeds of the farm rented es-
pecially, is snpcrior to any agreement between the parties,
and the proof is satisfactory that the cotton was the product
of the rented premises,* neither defendant in the warrant
nor claimant, both of whom testified, having pretended that
it was not, and the cotton being at the gin-house, two hun-
dred yards from the dwelling where both Alstons lived to-
gether.
The sheriff was right to levy on the cotton pointed out
by the landlord, and if he had been wrong, it could not
affeet the issue on trial, which was simply this: Is the cot-
ton subject or not to the distress warrant ? Therefore it
was wholly immaterial on the trial of that issue whether
other property could have been levied on, or was subject, or
pointed out for levy.
No claim was made for damages in this case and there-
fore we award none.
Judgment a£Srmed;
SUPREME COURT OF GEORGIA.
CoLLiEB, aasignee, vs. Babnes.
1. Though a note be payable to an assignee in bankruptcy, or bearer,
and though sued in his representative capuitj, yet the courts of
the state have jurisdiction thereof. Anj person in possession could
have maintained such suit, and the formal language describing the
representatire capacity of plaintiff may be treated as surplust^e.
2. BveD it the above principle be incorrect, yet the plaintiff was pio>
ceeding by authority of an order of the United States court passed
under the act of congress of June 22, 1874, and had so alleged In
an amendment to his declaration.
Bankrapt. JarisdictioD. Before Jadge Sdchons. Oraw.
ford Snperior Court. March Term, 1S79.
Reported ia the opinion.
Hall & Son, for plaintiff in error.
W. C. WiMBLOw, by brief, for defendaot.
Crawfobd, Jastice.
The plaintiff its error, wh<i was thu plaintiff in the conrt
below, broogbt anit agaioat Aden II. Bnrnea for the recov-
ery of two promiKorj notes jiiivaljle to himself for the Bom
of $102.00 each, of which the following ia a copy of the
first:
" tl02.00. By the first day of July next I promise to pay W. E.
Collier, as assignee of B. B. Barnos, Ijnuiirupt, or bearer, one hundred
and two dollars for value receiver], wiih intcreal from date at seven
per cent, per anunm. Port Valley, 'Ja., February 10. 1875.
(Signed) Adks H, BABirBA."
The second note only diffei-s in the time of ita matnritj ;
otherwise it la the a&me. Snit tiegaii against the dcfendaot
to the March term, 1876, and, after lingering upon the
dockete nntil the March term, 1879, it came np for trial,
when connael for defendant ULOved to dismiss it upon the
gronnd that the eaperior conrt had no jurisdiction to try it,
aa excluaire jurisdiction in such caaoa bad been given to the
FEBRUAET TERM, 1880. 486
Collier, assignee, ««. fiamee. '
courts of the United States. The coart diemisscd the suit
after argaraent had thereon, and the plaintiff excepted.
1. The only question, therefore, presented for our consid-
eration is, whether, under the facts stated, the superior
court of Crawford county had jurisdiction over the subject
matter of this suit ?
We think that it did, and to have dismissed it for that
reason was error. It will be observed that this case does
not fall within the ruling in Dadd va, Hammond^ 69 Oa.^
403, for that was a suit by the assignee to recover property
from an adverse claimant, and of which he had never had
possession. He was proceeding in that case to collect, as
he claimed, the assets to carry them in the bankrupt court
for distribution, and under the law of the United States,
which may be seen in §711 of the Revised Statutes, "exclu-
sive jurisdiction vests in courts of the United States of all
matters and proceedings in bankruptcy."
Can such a suit as this be considered, in any legal sense, a
matter or a proceeding in hankruptcy f These were notes
given to the plaintiff in error, payable to him or to bearer;
Uioy could have been sued by him, or by any one else who
held the legal title, and a recovery had in the state courts.
But it may be said that they were made payable to him as
the assignee, and for that reason they were alone suable in
the courts of the United States. We hold that those words
did not change the character of the contract any more than
a note payable to an administrator, as such,would force him
to sue as such administrator before he could recover.
*^ If a note is taken payable to an administrator as such,
it is only a description of the person ; he may sue upon it
in his own name, and if he sue on it as administrator, that
is only a description personal, and may be rejected as sur-
plusage. A judgment recovered by an administrator is a
debt due to him in his personal character, upon which suit
may be brought in his own name." 5 6a.y 66.
2. Even if this should be insufficient authority to have
entitled the plaintiff to maintain his suit in the superior
486 SUPREME COURT "OF GEORGIA.
" ' ' ^ m f f — J— .^ ji .-r .1.
SClark, tnu ee, m. Bryce.
court, then tinder an act of congress of Jane 22, 1874, he
was authorized to ask an ordef of the court having charge
of the estate of the bankrupt to grant him leave to sue for
and recover any of the legal assets or debts of the bank-
rupt, as contra-distinguished from editable demands, when
such debt does not exceed the sum of $500.00, in the courts
of the state where such bankrupt resides, having jurisdic-
tion of claims of such nature and amount.
If, therefore, it should be claimed that thid note was a
part of the assets of the bankrupt, still the plaintiff had be-
fore the court at the time of the dismissal of his action
such an order from the district court of the United Stated,
and his declaration had been amended, setting forth this
order for two or more terms without any objection, by de-
murrer or otherwise, hairing been made thereto. We think,
therefore, that the ruling of the court was error, and that
the judgment should be reversed.
Judgment reversed.
Clabk, trustee, v^. Bbtob.
1. Where one signs a note as security upon condition that another
should also si^n, and the principal delivers the paper to the payee
without such additional name and Without notifying him of the
xondition, and obtains monejr thereon, the surety signing is not dis-
, charged. . .
2. Indulgence tq the principal for a valuable consideration, 'without
the consent of the surety, discharges the latter. If the surety rati-
fies the delivery of the note without the additional name, or the in-
dulgence, of course he would Still be bound.
8. Although the evidence was conflicting, there is sufficient to silstaift
the verdict.
•
Charge of Court. New trial. Before Judge Spitsft.
DeKalb Superior Court. March Term, 1879.
To the report contained in the decision it is only neces-
sary to add that the court charged in substance as follows:
FEBRUARY TERM, 1880. 487
Clark, tnutee, w. Qr;oe.
That unless Morrison notified Thomas C. Howard at the
time be delivered the note and received the monej, that
Bryce had signed the note on condition that Alston woald
si^ also, and that it was not to take effect until Alston did
60 sigDy Brjce could not be discharged on that ground.
That, although Bryce may have signed the note on condi-
tion that Alston should also sign, and Howard had notice of
this at said time, and there may have b^*ei^ a new contract
eotered into between Morrison and Howard after the ma-
turity of the note without Bryce's knowledge or consent at
the time it was made, whereby indulgence was given to
Morrison for a year or more for a valuable consideration,
yet if afterwards tb^ knowledge came to Bryce that the
note was delivered to Howard on the receipt of the money
by Morrison without the siguature of Alston, and the
knowledge also cam^ to him afterwards of the terms of the
indulgence to Morrison for a valuable consideration, and the
jury is satisfied frpm the evidence that Bryce either qx-
preesly or impliedly ratified both of said acts, Bryce would
be liable to plaintiff ; but if said knowledge and acts of
Bryce did not amount to a ratification, then they are cir-
cumstances for the jury to consider in coming to a conclu-
sion as to whether or not it is true that Bryce signed only
on condition that Alston should also sign, and which was
communicated to Howard at i^d time, and whether or notf
it is true that there was any new contract for a valuable
consideration to give Morrison indulgence.
That if after the note became due Morrison made with
Howard a new agreement .to extend the time for the pay-
ment of the note, and he received for it a valuable consider-
ation— received money for it— without the consent of Bryce,
it would release the security.
NVABNEsy^Chief Justjce.
This was an action brought by the plaintiff against J. J,
Morrison, Hattie H. Morrison and John Bryce, on a joint
promissory note for the sum of $300.00, dated 16th July,
1874, and duo 26th of December next after date. The de-
488 SUPREME COURT OF GEORGIA.
Clark, trustee, v§. Bryce.
fendant, John Bryce, pleaded tfeat he was security only on
said note, that he signed the same with the understanding
with plaintiff s agent, who negotiated the loan of money
for which the note was given, that R. A. Alston should also
sign said note as security with him, and that after said de-
fendant had signed said note, said plaintiff's agent under-
took and agreed to procure the signature of said Alston
thereto, which he failed to do. Tlie defendant, Bryce, also
pleaded that plaintiff's cestui que trustj who had said note
in her possession, for a valuable consideration, agreed with
J. J. Morrison, the principal in said note, after it became
due, to indulge him thereon for twelve months, etc. On
the trial of the case the jury, under the charge of the court,
found a verdict in favor of Bryce, the security. A motion
was made for a new trial on the grounds therein stated,
which was overruled and the plaintiff excepted.
We find no error in the charge of the court to the jury
in view of the evidence in the record ; it was quite as favo^
able to the plaintiff as he had any right to claim, and the
only remaining question in the case is, whether there was
sufficient evidence to support the verdict under the law ap-
plicable thereto. The 2154th section of the Code declares
" that any act of the creditor, either before or after judg-
ment against the principal, which injures the surety or in-
creases his risk, or exposes him to greater liability, will dis-
charge him ; a mere failure by the creditor to sue as soon as
the law allows, or negligence to prosecute with vigor his
legal remedies unless for a consideration, will not release
the surety.'' It appears from the evidence in the record
that the money loaned to Morrison, the principal debtor,
belonged to Mrs. Howard, the cestui que trusty and that the
loan of it was negotiated by her husband, Thos. 0. Howard.
Bryce testified that he signed the note as security upon con-
dition that Alston would also sign it before it was delivered
to Howard. Morrison also testified that Alston had prom-
ised to sign the note, and so told Bryce, when he signed it, '^
and that he would procure his signature to it the next day in ,
the dty, bat when he got the money from Howard i&<
FEBRUARY TERM, 1880. 489
Clark, tnutse, w. Bryce.
Atlanta, expected to find Alston there, but he was absent ; told
Howard that Alston was to sign the note, and had consented
to do so, and Howard promised him that he would procure
Alston's signature to it when he returned home and let him
have the money — witness agreeing to pay two per cent, a
month interest for the use of it, and gave his separate indi-
vidual notes for the interest, payable monthly, about which .
Bryce knew nothing. Morrison also testified that about a
mouth after the note became due he made an agreement
with Mr. and Mrs. Howard to wait with him a year or more
if he would continue to pay the same rate of interest on the
note be had been paying, two per cent, a month at the end of
each month. Witness paid her $6.00, the first month's in-
terest due on the new contract, and was to continue to pay
the same amount at the end of each and every month, hav-
ing paid the notes given for the interest prior to the matu-
rity of the note sued on ; that Bryce, the security, knew
nothing about the new contract for indulgence. Cox testi-
fied that in the fall of the year 1876, he had a conversation
with Howard and his wife, in which they stated that they
had collected from Morrison the interest due on the note,
and had agreed with him to extend the time of payment of
the principal of the note. Bryce, also testified that the
agreement made with Morrison for an extension of the time
of payment of the note was made without his knowledge
or consent. Such is, in substance, the evidence for the de-
fendant in support of the verdict. It is true that the evi-
dence of the plaintiff was in conflict with that of the de-
fendant npon some material points in the case, but that was
a question for the jury, and they thought proper to believe
the defendant's witnesses, as it was their province to do,
and there being sufficient evidence to support their finding,
and the presiding judge who tried the case being satisfied
therewith, this court cannot interfere and set aside the ver-
dict without overruling at least fifty decisions heretofore
made by this court in similar cases, which it does not feel
authorized to do.
Let the judgment of the court below be affirmed.
490 SUPREME OOUBT OF GEORGIA.
Woodmrd A Oo. ■». OonHlQs, Tonog A Fr«t.
WoODWAED & COMPAHT VS. GoDBDINS, ToONO & FhOST.
In view of the fact that the failure of the delendant to deliver sucb
cotton OS Uiey bargained to the extent of seventy-six bales, and ibat
some of the Mventf-siK bftles were almost worihles^, caused the
controverey , and of the further fact that ihe court below was doi
satisfied with the verdict, the grant of a new trial will not be con-
trolled,
New trial. Before Judge Glabs. City Court of At-
lanta. Juoe Term, 187».
Reported la the deciuoa.
HopEiMB & Glonh, for plaintiSd in error.
Jackboh & Ldkfein, for defendante.
Jackson, Justice.
Goardins, Yooug & Frost, of Sarannab, boagbt of
Batler Woodward & Oo., of Atlanta, one hundred bales of
cotton of a certain grade at a certain price. Twentj-fonr
bales came up to the standard etipalated for when received
in Savannah ; seventy-fiix did not. This fact was settled
after mach correspondence, b; arbitration. Porter & King,
of Savannah, acted as agents for the Atlanta firm and
managed their basiness in the city of Savannah. After the
arbitration and the rejection of the said seventy-six bales of
cotton, Porter & King wrote to Butler Woodward & Oo.
to the effect that most of the rejected cotton could be sold
to one Rauers at a certain price, and thereupon Batler
Woodward & Co. sent Porter & King the following tele-
gram: "Sell to Raaers, get ofi all can, then sell balance,
pay proceeds to Gourdins, we will remit exchauge for differ>
ence due him on receipt of statement." Accordingly the
eeveuty-fiix bales were sold, proceeds paid, and suit was
brought for the difference dne on an account between
Gonrdina, Yonng & Froet and Butler Woodward & Co.,
FEBRUARY TERM, 1880. 491
Woodward & Co. vt. Goardlns, Yoang A Frost.
by the former against the latter. The jary found for the
defendants, Butler Woodward & Co. The plaintiffs
moved for a new trial on many grounds, among them one
that the verdict was against the weight of the testimony
and contrary to law. The court granted the motion on that
ground and in the following words : " Upon argument had
it is ordered that a new trial be granted on the ground that
the jury found contrary to law and evidence on account of
the telegram to Porter & King, as that telegram changed
the arbitration by defendants ; or if not, that was the only
reasonable construction of it upon which plaintiffs acted,
and by which defendants should be bound, and the motion
is overruled on the other grounds." To this judgment de-
fendants excepted.
It appears from the testimony, which consists in the main
of a very lengthy and voluminous correspondence between
these parties, among themselves and through Porter &
King, that the defendants claimed the right to substitute
the seventy-six rejected bales with seventy-six other bales
coming up to the standard agreed upon in the sale, and
the question was, did this telegram preclude them from set-
ting up this claim ?
We do not well see what it can mean if it does not mean,
in the absence of explanation at least, that defendants were
satisfied with the price their agents wrote that they could
get from Rauers for the rejected cotton, and not being able
to buy, or not desiring to be troubled with buying, other
cotton of the standard agreed upon in the contract, they
would pay the difference in money or rather in exchange.
Be that as it may, this court has repeatedly ruled that the
first'grant of a new trial, since appeals to special juries have
been abolished, will not be closely scrutinized. Especially
is this the rule where the grant is made on the general
ground that the court below is not satisfied with the ver-
dict, because the evidence does not sustain it, and it is in
its judgment against law.
The presiding judge certainly has not abused his discre-
V6I-S1
492 SUPREME COURT OF GEORGIA.
The-0«orgU Soatheni Raflroad w. Beevn.
tion in the grant of this new trial. In view of the facts
that the failure of defendants to deliver sQch cotton as they
bargained to deliver, to the extent of seventy-six ont of
one hundred bales, and that some of the seventj-^ix was al-
most worthless caused all the difficulty between the parties,
it would seem that a closer examination of the merits of
the case will operate in furtherance of justice, indepen-
dently of the reason on which the court resHed its judgment
setting aside the verdict and granting the plaintiffs anoth^
hearing.
The judgment is therefore affirmed.
The Geobgia Southern Railroad vs. Rbbvss.
Where the grantor, in coDsiderfttion of #95.00, and of the building of
the railroad, conveyed to a company, its successors or assigns for-
ever, in fee simple, the right of way through his land, and addad
in the deed the following words: "It is hereby agreed and ander^
stood a d«pot and station is to be located and given to said Osborne
Reeves, on the land or strip above conveyed, to be pennAnently
located for the benefit of said Osborne Beeves and his assigns, and
to be used for the general purposes of the railroad company,'* the
grantee, by accepting such deed, entered into a covenant to comply
with its terms, and this covenant ran with the land aad became
obligatory upon any second company wMoh beoame the purchaser,
under proper legal direction, of all the rights, privils^BS, tranchisoi
and property of the former.
Deeds. Contracts. Covenant. Before Judge Mc-
Cdtchen. Gordon Superior Court. August Term, 18T9.
Reported in the decision,
Shumate & Wu^liamsok, for plaintiff in error.
W. K. MooBE, by brief, for defendant
Cbawfoed, Justice.
Osborne Reeves conveyed to the Selma, Rome and Daltou
Railroad Company, their snooessors and assigns, the right of
F£6BnART T£RM, 1880. 498
The Geoigia fioallMm RaHmart ««. BeevM.
way through hia land, of Bafi^ient width to baild said rail-
road, as woll as all side-tracks and tamoats, not to exoeed
50 feet from the centre of the main line, together with all
the rights and appnrtenanoes thereunto appertaining. The
said company was to build the road, pay the said Beeves
$25.00 in money ; and it was farther provided in the said deed
of conveyance, that a depot and station was to be located
and given to him on the land so conveyed, to be permanently
located for his benefit and that of his assigns, to be used
alfio for the general purposes of said railroad company.
Under that conveyance the company proceeded to enter
apon, locate, grade and construct their railroad, but failed
and neglected to comply with their contract in building the
aaid depot, and establishing a station as was agreed by them,
nntil the said company became insolvent. Under proper
legal direction all its rights, privileges, franchises and prop-
erty were sold to, and became the property of, and is now
owned by, tlie Georgia Southern Railroad Company, which
said company has succeeded to all the rights of the said
Selma, Borne and Dalton Railroad Company.
This company having also failed to locate and build said
depot and establish said station, the said Reeves has brought
anit against the said company for its failure to comply with
the agreement above specified.
He alleges that being the successors and assigns of the
aaid original company, that they are liable to him just as the
original company was, and therefore he prays that they be
required to build the depot and establish the station upon
the said land, if they hold under his said deed of conveyance,
and if .they do not so hold, that then they be required to
pay him the value of therightof way, or upon failure thereof
that he may recover the possession oi the same. The de-
fendant filed a demurrer to the plaintiff's declaration : Ist,
because it was a contract with the £elma, Rome and Dalton
Bailroad Company, and that it was not alleged that they had
failed to do anything which they had obligated tliemsel ves to
do in oaudderatwn of tie convej/anoe. 2nd. The building
4U SUPREME COURT OF GEORGIA.
The Geoi^ Soatlieni BailToad ve. Beeres.
of the depot and station was a separate nndertaking, and
was without consideration ; bat if ever there was a consid-
eration, then there is no right of action against the defend-
ant. 3. That the deed passes a good title to the defendant
without condition, and that no right of action is set oat in
plaintiff's declaration. This demarrer was overruled by the
court and the defendant assigned error thereon.
The whole question of whether or not this jadgment was
error, depends upon the construction of the deed and the
relative rights of the parties thereunder.
The grantor, in consideration that the Selma, Borne and
Dalton Company should build this railroad, and in consider-
ation of the sum of $25.00 then paid, granted, bargained and
conveyed to the said company, their stiocMsars or (Mngna,
forever in fee simple, a strip of land 100 feet in width
through lots of land, 293, 880 and 484, in Gordon county,
upon which to build the said railroad, its side-tracks and
turnouts, as well as the right to cut all trees which by fall-
ing might encumber the track thereof. Immediately after
these words in the deed occurs the following clause : ^' It
is hereby agreed and understood, a depot and station is to
be located and given to said Osborne Beeves, on the landor
elirip above convey edjU> be permanently located for the benefit
of said Osborne Beeves and his assigns, and to be used for
the general purposes of said railroad company. " It can
hardly be insisted that these words, occurring as they do in
this deed, are to be ignored, or construed in such way as to
deprive this grantor of a clear, palpable benefit which he
intended by their insertion.
They present two practical questions, the first is, whether
they constitute a covenant f and, secondly, if so, is it a cove-
nant running with the land t
^^ A covenant is an agreement between two or more per-
BonSy by an instrument under seal, to do or not to do some
particular thing. It can only be created by deed, but may
be by a deed poll (the party named in the deed) as well as
by indenture ; but where lands are conveyed by indentore
FEBRUARY TERM, 1880. 496
The GcorgU Soatheni Bailroad w . Reeves.
to a pereoQ who does not seal the deed, jet if he enters upon
the land, and accepts the deed in other matters, he will be
bonnd by the covenants contained in it." Taylor's Landlord
and Tenant, §245.
Testing then this clause in the deed by the law, it is an
agreement under seal between Reeves, the grantor, and the
railroad company, the grantee, that the latter, having the
right to build its road upon, and use, occupy and possess
100 feet in width through the land, is to locate a station and
baild a depot thereon for the benefit of Beeves, the grantor,
and his assigns. And even though the instrument is not
signed by the company, yet they have entered upon the
land, accepted the benefits arising therefrom, and must as-
sume the burdens. It was insisted upon in the argument
that this not having been declared to be a part of the con-
sideration for the grant of the laud by Beeves, created no
obligation upon the company to do anything more than it
did. The same authority just quoted lays down the rule to
be that, "No precise or technical language is necessary, it
may be in the form of a condition, an exception, or even a
recital, for whenever the intention of the parties can be col-
lected out of the instrument amounting to an agreement, it
ifi snflScient to create a covenant." Ibid §246.
Believing, then, and holding, as we do, that this clause
in the deed is a covenant, does it run with the land ? It is
agreed and understood, says the deed, that a depot and sta-
tion is to he located on the land conveyed and permanently
loccUed for the benefit of the said Beeves and his assigns.
The thing to be done is connected directly with the land
conveyed, and not confined to the personal use and benefit
of the grantor alone, but to him and his assigns. Personal
covenants have no relation to the land couveyed ; but this
relates directly to the land and continues upon it so long as
the grantor or his assigns might insist upon it.
When, therefore, the Selma, Bome and Dalton Bailroad
was sold, the purchaser took it with all its rights, privileges
and franchises, and therewith such obligations as were
496 SUPREME COURT OF GEORGIA.
TlM G«orgte floBtlMsrD IteBiro*d «v. Rmtm.
necefisarily incident to, and legally coupled with, the' enjpy-
ment of those rights. Where a covenant is entered into
and it is for the benefit of the pnrehaser, the seller gets an
enhanced price for his land ; and if he reserve or require a
benefit for himself and his assigns he gets less present value
therefor. In either ease the covenant becomes in effect a
part of the estate itself ; and whoever takes the estate in
one case should have the benefit, and in the other should
bear the burden." Washbnme's Beal Property, Yol. 2, pp.
268-4.
The seller in this case required a benefit for himself and
his assigns, and no doubt got less for his land at the time of
its conveyance ; the buyers, in consideration of that ^^ less
present value," covenanted to give him a depot and station,
and not only bound themaehea thereto but their ^ti^
ee$9CTS and (Mssigns^ it was so written in the convey-
ance, so accepted by the purchasers, so enjoyed and ap-
propriated by them, and the Georgia Southern Railroad
Company are the successors in fact and assigns in law of
the Selma, Rome and Dalton Railroad Company, and
are as much bound as the original company.
It is a well settled rule, says this court in 54 Oa,, ITO,
that a party is charged with notice of recitals in any deed
under which he claims title, and Jumel vs. Jnmel, 7 Paige,
591 ; Moore vs. Bennett, 2 Chan. Cas., 246, and other au-
thorities are cited to sup|>ort the rule. The demurrer, there-
fore, was properly overruled^ and the judgment is aflSrmed.
Judgment affirmed.
FEBRUARY TERM, 1880. 497
Plumb, titistee, vt. Tncker.
Plumb, trnstee, vs. Tuckbb.
A motion made March 3l8t, 1879| to set aside a decree rendered in
1871, was, on its face, barred by the provisions of the act of Feb-
ruary 15tli, 1876, and was demurrable.
Statute of limitations. Before H, K. McCay, Esq., Judge
pro hoc vice, Fnlton Superior Court March Term, 1879.
Reported in the decision.
E. N. Bboyleb ; A. C. Kmo ; Geo. T. Fry, for plaintiff
in error.
Jno. T. Glbnn, for defendant.
Wabnsr, Chief Justice.
This was a motion to set aside a decree in equity in Ful-
ton superior court on the grounds therein stated. A de-
murrer was filed thereto, which was sustained by the coart,
and the movant excepted. It appears from the record that
the decree was rendered on the 9th day of June, 1 87i , and
that the motion to set it aside was filed on the 31st day of
March, 1879. On the 15th day of February, 1876, the gen-
eral assembly enacted that from and after the passage of
this act, all proceedings of every kind in any court of this
state to set aside judgments or decrees of the courts, must
be made within three years from the rendering of said
judgments or decrees, and repealed all conflicting laws.
More than three years having elapsed from the date of the
above recited act before the motion to set aside the decree
in this case was made, it was barred by the statute of limi-
tations, and there was no ern^r in sustaining the demurrer
to the movant's motion.
Let the judgment of the court below be affirmed.
498 SUPREME COURT OF GEORGIA.
Bpann ^ aL vt. The Board of Commtraioners, etc., of Webster Coan^.
Spann et al. vs. The Boahd of Commibsioneks, sra, or
Webster County.
1. Prior to the constitution of 1877, where one hundred per cent, of ft
county tax of one hundred and forty-two and one-half per cent on
the state tax was recommended by the grand juiy, and items
amounting to fifty-five per cent, or more, needed no recommenda-
tion, the whole would stand.
2. Under the constitution of 1877, a county cannot levy a tax for "in-
cidental expenses," nor to buy a safe, without the assent of two-
thirds of the voters at an election held for that purpose. An assess-
ment for "expenses of jail" is equivalent to a levy ** to maintain
'and support prisoners," and is constitutional.
Tax. Constitutional law. Before Jndge Crisp. Webster
County. At Chambers. December 6, 1879.
Keported in the decision.
George Thornton ; D. B. Harrsll ; Hawkins & Haw-
kins, for plaintiffs in error.
GuERRT & Son ; B. P. Hollis ; J. B. Hudson, for de-
fendants.
Jackson, Justice.
The commissioners of roads and revenues of the coanty
of Webster levied a tax of one hundred and forty-two and
one-half per cent, upon the state tax for county purposes
for the year 1879, and complainants brought this bill in
equity to enjoin its collection ; the chancellor refused the
writ of injunction prayed for, and on this judgment of re-
fusal error is assigned in this court. The assessment of
taxes levied is for expenses superior court, thirty-five per
cent. ; for repair of bridges, fifty-five per cent. ; for psj*
ment for iron safes for the county, twenty-two per (Mt;
for paupers, twelve and one-half per cent.; for expeOMif
jail, six per cent. ; for incidental expenseSi tffriJjt^ ym^iplk
FEBKUARY TERM, 1880. 499
Spaim«< al. vu The Board of CommlssioDers, etc.. of Webster Coan^.
On the item of six per cent, for the jail, twelve per cent,
for incidental expenaes, and twenty-two per cent, for iron
safes, special error is assigned as being each illegal, and to
the entire levy as being over one hnndred per cent., which
was the limit of the recommendation of the grand jury.
1. Many of the items did not need the recommendation
of the grand jury to legalize them, and if one hundred per
centum was recommended and the excess needed no recom-
mendation, then, according to the decision in Arnett vs.
Oriffin^ 60 Oa.^ 849, the entire levy would stand as the law
was at the date of that ruling. Here fifty-live per centum
for bridges did not need any recommendation, according to
the decision in the same case, and without considering other
items which did not require the recommendation of the
grand jury, this alone reduces the total levy needing recom-
mendation below one hundred per centum, and the tax is
valid according to Arnett vs. Oriffm.
2. But the plaintiffs in error insist that the constitution
of 1877 has changed the law, and that under that constitu-
tion the three items of six per centum for the jail, twelve
per centum for incidental expenses, and twenty-two per
centum for iron safes, are all unconstitutional and void.
The second paragraph of the sixth section of the seventh
article of that constitution is in these words : ^^ The general
assembly shall not have power to delegate to any county the
right to levy a tax for any purpose, except for educational
purposes in instructing children in the elementary branches
of an English education only ; to build and repair the pub-
lic buildings and bridges ; to maintain and support prison-
ers; to pay jurors and coroners, and for litigation, quaran-
tine, roads, and expenses of courts ; to support paupers and
pay debts heretofore existing.^^
Paragraph one of section seven of the same article is as
follows: "The debt hereafter incurred by any county,
municipal corporation, or political division of this state,
except as in this constitution provided for, shall never ex-
ceed seven per centum of the assessed value of all the
500 SUPREME COURT OF GEORGIA.
Spann eioLm. The Board of CommlnrioDen, etc., of Webtter Coantj.
taxable property therein, and no SBcli county, municipality
or division shall incur any new debt except for a temporary
loan or loans to supply casual deficiencies of revenue, not
to exceed one-fifth of one per centum of the assessed valu#
of taxable property therein, without the assent of two-
thirds of the qualified voters thereof, at an election for that
purpose to be held as may be prescribed by law ; but any
city, the debt of which does not exceed seven per centum
of the assessed value of the taxable property at the time of
the adoption of this constitution, may be authorized by law
to increase at any time the amount of said debt three per
centum upon such assessed valuation."
The tax for expenses of jail is equivalent to a levy " to
maintain and support prisoners," and is authorized by the
second paragraph of the sixth section of article seven of
the constitution of 1877 above cited.
The tax for incidental expenses is not authorized by
either of the paragraphs cited, nor by any other clause of
the constitution of 1877 of which we are aware, or to which
our attention has been directed ; it is a very loosely worded
item, under which many expenses, incident to what is not
specified, and is impossible to be ascertained from the lan-
guage used, might be incurred and paid against the spirit
of the present constitution by taxation, which the legisla-
ture, since the adoption of the constitution of 1877, could
not delegate to any county ; and which, therefore, as all
taxing power must flow from the general assembly, no
county can now impose. Code, §§>16, 518.
The levy of twenty-two per centum for iron safes is not
mentioned in the purposes enumerated in said second parar
graph of the sixth section and seventh article ; nor are there
words therein which, without much latitude of constrnctiou,
can be construed to authorize the tax. Besides, the pur-
chase of these safes is the creation of a new debt since the
adoption of the constitution of 1877, and expressly prohib-
ited by the first paragraph of the seventh section of article
seven, '^ without the assent of two-thirds of the qualified
FEBRUARY TERM, 1880. 501
Spaim eta/, w. The Bo*rdof CommiMionen. etc., of Webater Coanty.
voters of the ooanty at an election for that purpose, to be
held as may be prescribed by law." No sach election has
been held, and a new debt, without its sanction as a condi-
tion precedent, cannot be imposed.
The prohibition is emphatic : '* And no such county,
municipality or division shall incur any new debtj except
for a temporary loan or loans to supply casual deficiencies
of revenue, not to exceed one-fifth of one per centum of
the assessed value of taxable property therein," without the
sanetion of such a vote.
At the last term, in the case of Hudson et al. V8, Mayor^
etc.j of Marietta, this construction was given to this para-
graph of the constitution, and the city of Marietta was en-
joined from incurring a new debt, since the adoption of the
constitution of 1877, for the purchase of a steam fire engine
for city purposes. That case covers this item of taxation in
this case, and the principle ruled then by two justices of
this court is afSrmed by a full bench.
It was the purpose of the framers of that constitution to
tap the root of that system of indebtedness by counties,
cities and towns,. which was growing into immense propor-
tions and spreading mildew and blight everywhere over
the land; and it is made our duty by the same constitution
to declare all laws in violation of its provisions and prohi-
bitions to be null and void. Par. 2, sec. 4, art. 1, const.
1877.
These safes might have been bought on a credit and a
debt incurred therefor prior to this constitution, Code,
§§497-602; and they may be bought still, if the county
should have surplus funds from any source to pay cash for
them, Code, §528 ; or if the debt be incurred with the as-
sent of two-thirds of the voters of the county, but not
otherwise. We think, therefore, that the injunction should
be granted to stay the collection of the tax for incidental
expenses and for the iron safes.
Judgment reversed.
SDPEEME OOITRT OF QEOEGIA.
Colbert n. Hoora
CoLBBBT va. MooBS, administrator.
A purchaser of property at adminlatrator'a sale cannot repadiate hil
bid because of a defective title, or ao title at all in the iotaatate,
wben there is no fraud or mlsrepreaentatlon by the admiDistrator.
An admiaistrator cannot bind tbeeatate by warrantf In any con-
veyance or contract made by bim.
AdminiBtrators and execntora. Judicial sales. Before
Jndge SawoNS. Crawford Superior Court. March Term,
1879.
Moore was the aaccessor of Smith as admin istrator upon
the estate of Culverbonse. The caee is eutSdently reported
ill the opinion.
J. H. Hall, by brief, for plaintiff iu error.
K. D. Surrs, hy Baooh & RniuEttvaRD, for defendant,
Ceawfokd, Jnstice.
K. P. Smith, aa the adinimstrator of G. P. Calverhonee,
filed a bill to marshal the a^sute of hie intestate — was
granted aa interlocntory order directing the sale of the real
estate of the deceaced, at which sale John 6. Colbert be-
came the purchaser of certain kutds so exposed to sale, and
refusing to pay the purchase money, was sued therefor.
He pleaded the general issue, aud further that the plain-
tiff could show DO title in the intestate, aud that he was
ready to pay if the administrator could make good aud valid
title.
Under the charge of the court and the evidence sub-
mitted, the jury found a verdict for the plaintiff, and the
defendant being dissatisfied therewith, moved a new trial
upon several gronnds. Those which must control this uaw
are :
1. That the court erred in refusing to charge as requested
FEBRTJART TERM, 1880. 503
Colbert «f. Moore, administrator.
in writing, '^ That if Smith sold the land, and Colbert after-
wards found that Smith had no title and could make him
none, then Colbert was not bound to comply with the bid,
that is, if Colbert demanded a title of Smith/'
2. Because the court erred in charging further, " That
an administrator cannot bind the estate he represents by
any warranty; Smith, as the administrator, could not bind
the estate of Culverhouse by warranting this property, even
if he had attempted to do so. In all judicial sales the pur-
chaser must look to the soundness of the title for himself.
In sheriffs', executors' and administrators' sales the pur-
chaser is bound to look for himself, not onjy as to the
soundness of the property, but as to the title, and to see if
the party had the right to sell."
3. Because the court erred in charging as follows : " Did
Smith make any false representations as to quantity, qual-
ity or title to the land ? did his crier make any, and was
Colbert misled by them, acted on them? then he is not
bound. But if neither Smith nor his agent who cried the
property, or if Colbert was not misled by them, he is
bound by his bid and you should so find."
The request to charge, which was refused, and the
charges given, bring us directly to the question in this case,
which is, whether a purchaser of property at administra-
tor's 3ale can repudiate his bid because of a defective title, or
no title at all in the intestate, where there is no fraud or
misrepresentation by the administrator. Section 2622 of
the Code declares, '* The purchaser must look for himself
as to the title and soundness of all property sold under ju-
dicial process. Actual fraud or misrepresentations by the
officer or his agents may bind personally." These princi-
ples were ruled in 8 Oa.^ 236 and 300 ; 11 /J., 1 ; 18 /J.,
553, and incorporated into the Code therefrom, and are
now the fixed and settled law of this state. ^*An adminis-
trator cannot bind the estate by any warranty in any con-
veyance or contract made by him, nor is he personally
bound by such contract unless the personal liability is dis-
604 SUPREME COURT OF GEORGIA.
Bahler««. The State.
tiaotly expreesed." Oode, §3568. Becognizing therefore
the principles given in the charge as beiag souad law^, we
affirm the jadgment.
Judgment affirmed.
BUHLEB VS Th8 StATB OP OflOBGU.
B. was indicled for stealing a cow from H. ; was tried and acquitted.
He was again indicted for stealing a cow from H., the description
being different from that in the first indictment. He pleaded auirt
fm» aequU. On the trial, it i^peared that H. never had but one
cow, and it was for the stealing of that oow that B. was indioted,
and concerning it H. testified in both cases:
Held, that a verdict of guilty was contrary to law.
Criminal law. Yerdict. Before Judge Hilltbb. Ful-
ton Superior Court. March Term, 1879.
Beported in the decision.
S. B. Spbnobb, for plaintiff in error.
B. H. Kiu^ J r., solicitor general ; J. Mo Afbb, solicitor
j»ro tem.j for the state.
WABNBm Chief Justice.
The defendant was indicted for the offense of ^^ simple lar-
cenj,'' and charged with stealing one brindle cow, with one
horn knocked off about two inches from the point of the
horn, white spot in her forehead^ and white on her tail from
the butt about a foot, of the value of $10.00, the property
of Peter Howell. On the trial of the case the jury found
the defendant guilty. A niotion was made for a new trial
on the grounds therein stated, which was overruled, and the
defendant excepted. It appears from the record and l»li
of exceptions that at the same term of the court a biH pf
indictment had been found against the defendaet for the
FEBRUABY* TERM, 1880. 605
BoMor M. TiM State.
offense of simple larceny, charging him with having stolen
a small red cow, with doveo hoo& and horns, of the valae
of $7.00, the property of Peter Howell ; and that npon this
last mentioned bill of indictment the defendant was put
upon his trial, and a verdict of not gnilty was found by the
jury. Then th^ iLrst mentioned bill of indictment was f oond
against him, and when put upon his trial npon that indict-
ment, the defendant pleaded in bar his former jeopardy and
acqnittal upon the indictment first found against him. The
court overruled the defendant's plea in bar, but allowed evi-
dence to be introduced for the purpose of showing whether
or not the offense charged in the second indictment was the
same transaction as that charged in the first indictment, in
accordance with the rulings of this court in Roberta <& Copen-
ka/wnm.ThsStaU,U Qa., 8, aod HoUva. The Stat4^, 38 Qa.,
187. The court charged the jury in relation to this point
in the case, that if they found from the evidence that the
defendant had been already tried for the same offense, and
if the matter wherewith he was then put iu jeopardy was
the same transaction as that on which he is now sought to
be tried, and the state now seeks to try or convict him again,
it would be a complete bar to this prosecution, no matter
what its merits might otherwise be. But If you do not find
that it is the same transaction, it would not be a bar. There
was no conflict in tiie avidence that the defendant was in-
dicted for the same transaction in both cases, to-wit : for
stealing Peter Howell's cow. The evidence was that be
did not have but one cow, never lost hut one cow, and that
he testified on both trials in relation to the same cow having
been stolen from him, and never prosecuted the defendant
for stealing but Uie one cow ; so that the stealing of Peter
HowelFs only cow was the same transaction for which the
defendant was indicted in both cases, according to the undis-
puted evidence in the record. The verdict of the jury was
contrary to the charge of the court, and was therefore con-
traTy to the law, and it was error in not granting a new trial
upon that ground.
Let the judgment of the court below be reversed.
506 SUPREME COURT OF GEORGIA.
Scott ft, Taylor.
■ - —
SOOTT V8. TaTLOB.
1. A bill filed by a sister against a brother to compel the conveyance
to her of certain property, the title to which had been taken in him
under a purchase made by her, to secure the payment of the notes
for the purchase money which had been given by him, and upon a
verbal agreement to convey to her for life with remainder to her
children, on the payment by her of said notes, which payment she
alleged had been made, is not a proceeding to change the deed to
the brother from a fee simple to a conditional title. Evidence of
such agreement and payment was admissible, without infringing
the rule that it is not competent to engraft an express trust upon a
written deed by parol proof.
2. The verdict for the complainant is supported by the evidence, ex-
cept in a small matter of calculation, which is ordered corrected.
Traste. Deed. Evidence. New trial. Before Jadge
Spbeb. Rockdale Superior Oonrt. Angast Term, 1879.
Report annecesBary.
Clark & Pace ; 6. W. Glbaton, for plaintiff in error.
J. J. Floyd, for defendant.
Cbawfobd, Justice.
S. F. Scott brought ejectment against Alfred Taylor for
a honse and lot Pending this action the wife of Taylor
filed a bill for injunction and relief against Scott. She
alleged that she made an arrangement in 1858 to purchase
this honse and lot through her brother, 8. F. Scott, and
Archa Scott, her father ; the same was to be held to her use
for life, with remainder over to her children ; that the price
paid was $332.17, for which amount her brother gave snudl
notes, with her father as security, taking the title to himselfi
which he was to hold until the purchase money was paid
back to him, and meanwhile she was to have possession.
When the purchase money was paid and he saved harmlesi^
then the deed was to be made to her for life, and after her
FEBRUARY TERM, 1880. SOT
Scott vs. Tftylor.
'^leath to her children. That the notes for the purchase money
were traded to one Denard, who sned them to judgment,
and afterwards agreed to take one-half of the principal in pay-
ment therefor, which sum she paid, and thereby saved
the said S. F. Scott harmless. She prays, therefore, that
he be compelled to make conveyance unto her according to
said arrangement and understanding.
The defendant by his answer denied that she bought the
house and lot as alleged, bnt set up that he bought for him-
self and for his own use in fee; that he gave in payment
therefor eight promissory notes, three of which were for
:$110.00, or $111.00, and due December, 1859; the other
live were for $221.00, and due in December, 1860; that the
first three were traded to John Bustwick and paid off by
him; the other five were traded to Washington Denard,
who sned them, and that he had himself paid up the same
at the rate of tifty cents in the dollar after they were in
execution.
Upon the trial the jury returned a verdict for the com-
plainant, finding that she recover the property in dispute,
4ind that she pay to the defendant, by Ist of May, 1880,
$75.00, with interest from 1868, and upon such payment
that title be made to her to the said property for life, and
in remainder to her children, and that the suit in ejectment
te perpetually enjoined.
To this finding the defendant excepted, and moved the
•court to grant him a new trial, which the court refused, and
thus the case is before us for review.
The plaintiff in error relies mainly upon two grounds for
the grant of a new trial :
Ist. That the court erred in admitting parol proof to en-
graft a trust on the deed to S. F. Scott, in that by the bill
•complainant seeks to change the deed from a fee simple to a
•conditional title.
2d. That the verdict is contrary to the evidence and the
weight of evidence.
1. If we concurred with the plaintiff in error in his
V 64-«2
SUPltEME COURT OF GEORGIA.
preiiiisea, then we eiionld also concnr with him in the prin-
ciples of law wliich he invokes to enstain his objections to
the inling of tlie eonrt. There is no effort on tho part of the
complainant to change the deed made to Samuel F. Scott by
Bennett Alniand. It waa made just as she claimB, ac-
cording to the agreement, it was to have been made. Her
husband being insolvent, Scott, her brother, was to take it
in biB own name, give his notes with her father as secnrity
for the purchase money, and when they were paid by her he
was to convey the title to her for life and to her children
after her death. So that, botli by aj^reement and by the
payment of the purchase money, if she paid it, it became a
rosalting trust, and lie waa in equity and good conscience
bonnd to execute to lier the title.
The principle is well settled by the elementary writers, and
nnmeronsadjudicatedcaees, that when the purchase money is
paid hy one, and tho legal title taken in the name of another
the person named in the conveyance is but a trustee of him
who paid the consideration. "Thia rule," eays Perry on
Trusts, "has its foundatione in tho natural preaumption, in
the absence of all rebutting circumstances, that he who
supplies the purchase money, intends the purehaBe to be
for his own benefit, and not for iinolher. ia a matter of
convenience and arrangement bciwcuii the parties for col-
lateral purposes, and this rule ia vindicated by the experi-
ence of mankind." This same doetrine will be found in
Story's Eq. Jur., sec. 1201.
If, then, Mrs. Taylor paid tlii^ piircliase money, and it
was agreed that when she did this Scutt was to make her a
title, we cannot see that proof to fstablisli those facts ms
illegal, or that it would be allowlntr parol proof to engraft
an expreaa trust upon a written i]\i;iJ. The testimony upon
this matter of the trust ia painfully contiictirig, the brother
and sister testifying in direct coTitrndiiitiou to each otber,
and 80 with other members of thu family. The jury, under
oath, have said tliat the truth was with the complainant ; the
judge who also heard the evident^ would not disturb their
FEBRUARy TERM, 1880. 609
Scott V9. Taylor.
finding, and, after a close and tliorougli investigation, we
find ample testimony to authorize the conclusion so reached.
2. Was the verdict contrary to the evidence as to the
amount of money paid for the land, or the amount paid by
Mrs. Taylor to Denard for the executions ? Alfred Taylor
and Harriet Taylor both swear that she bought the land
through her brother, and that the purchase price was three
hundred and thirty-two dollars and seventeen cents. S. F.
Scott and his brother, A. T. Scott, testify, the former that
he gave his notes for $110.00 or $111.00 over the $332.17
taken up by Mrs. Taylor, and the latter that he paid off such
notes indorsed by Almand for his brother, S. F. Scott, but
he does not swear that they were given for the land. This
is the direct testimony of the witnesses on this subject, but
an examination of the deed from Almand to Scott shows
tliat the consideration expressed therein was $332.17, and
which, added to the testimony of Mr. and Mrs. Taylor, and
their occupancy of the premises for fifteen or sixteen years,
was quite suflicient to authorize the jury in finding as they
did.
On the second question, however, we discover that they
did find contrary to the evidence as to the amount paid by
Scott to aid in taking up the Ji./as. There is no dispute
as to the payment by him of the $75.00 to Mrs. Taylor, and
there is no one who swears that he did not pay back to
Mann the $15.00 loaned by him to Mrs. Taylor, whilst the
two Taylors, Scott and Mann all swear that he did, so that
he was entitled to the sum of $90.00, instead of the $75.00
which was allowed him.
It is therefore ordered and directed that the decree now
of file in this case, in the court below, be made to conform
to this ruling, and that when the judgment of this court is
made the judgment of that court, that the decree stand
affirmed in all matters and things therein contained, and be
observed and performed by the parties thereto.
Affirmed with directions.
510 SUPREME COURT OF GEORGIA.
Finney w. Bnimby, tmetee.
FiNNSY v^. Brumby, trustee.
1. To complaint for land in 1879, a defendant pleaded as follows:
Defendant's husband owed plaintiff $1,400.00. He went into bank-
ruptcy, and sbe claimed a homestead in the property in controversy;
this claim was contested by plaintiff. A settlement was had by
which the assignee sold the property free from liens, plaintiff bid it
in and gave defendant bond to convey title to her on payment of
the amount of his bid with interest at twelve per cent. The payment
was to be in inst Ulments. Part of them had been paid, others hud
not. On the |1 ,400.00 defendant's husband had paid interest at the
rate of two and one-half per cent per month — the usury paid from
January 2d, 1878, to August 1st, 1875, amounting to $518.92. The
defendant sought to set this off against the amount still due plain-
tiff and also claimed that the assignee's, deed was void because made
to secure the payment of this usurious debt:
ffM, that the pleas of usury were barred by the statute of limitations
and were properly stricken on motion.
2. A plea to complaint for land that the sheriff had previously levied
on the interest of both plaintiff and defendant under a justice court
fi. fa,, bad sold and conveyed the same to a third party, who still
held paramount legal title, that plaintiff acquiesced therein, but de-
fendant had filed her bill to set aside the sale, which was still pend-
ing, was properly stricken, there being no allegation as to the
grounds for setting aside such sale.
8. Under the facts there was no error in allowing the verdict to stand.
• Interest and usury. Pleadings. Verdict. Before Judge
HiLLYKR, Fulton Superior Court. September Term,
1879.
To the report contained in the decision it is only neces-
sary to add the following :
Brumby, trustee, brought complaint for land against
Mrs. Finney, claiming title under a deed from the assignee
in bankruptcy of Finney, defendant's husband. She filed
the. pleas set out in the decision, in 1879. On motion the
court struck the last three. Plaintiff's counsel then ad-
mitted the facts stated in the second plea, and took a ver-
dict accordingly. Defendant excepted.
\ A. Wimpy ; E. N. Bboylbs, for plaintiff in error.
FEBKUARY TERM, 1880. 611
Finney nt. Bnimby, trnstee.
W. I. Hbtwabd, for defendant.
Warkeb, Chief Justice.
This was an action brought by the plaintiff against the
defendant to recover the possession of a tract of land
therein described. The defendant filed the following pleas^
to- wit:
(1.) For plea defendant sajs she is not guilty of the tres-
passes alleged against her, and of this she puts herself upon
the country.
(2.) For further plea defendant says the land in dispute
formerly was owned by A. T. Finney, her husband, and he
was indebted to plaintiff the sum of $1,400.00 for borrowed
money, besides interest ; that said A. T. Finney, being a
resident of the county of Fulton in said state and a head of
a family, was put into bankruptcy in the bankrupt court ;
defendant was urging her claim for a homestead in the
property in dispute or from the proceeds of the sale thereof ^
and this claim was disputed by said plaintiff. In this con>
dition it was agreed between plaintiff and defendant and
the assignee of said A. T. Finney in bankruptcy, that the
property in dispute be sold by said assignee, free from all
liens and incumbrances, and chat plaintiff should buy in
the same and then let the defendant have it at the price bid
in by plaintiff. Said property was sold accordingly and
bid in by plaintiff forthesumof $2,650.00, and then defend-
ant took bond for title to the property in dispute from plain-
tiff and promised him to pay him said sum in several
installments, bearing interest at twelve per cent, per annum.
Some of faid installments are due and unpaid, and some
are not due. In pursuance of said purchase defendant paid
plaintiff a part of the principal of said purchase money to-
wit, $600.00, and interest on the whole sum for some two
years. There is still due on said purchase the sum of
$2,800.00, or about that sum. The property sued for is
well worth the sum of $4,000.00. Defendant has found
SUPREME COUBT OF GEOBiilA.
I-laaer tu. Bnunb}', Inialee.
lierseU aaable frocn her poverty to meet promptly said
parchaae money. Defendant therefore prays the court to
restrain plaintiff from recovering and taking posecseion of
the property in dispute, and that a decree be rendered di-
recting the sale of said property, and that out of the pro-
ceeds of said sale the debt due plaintiff be paid first, and
the residue turned over to defendant, and that such
other relief be granted defendant in the premises ae shall
be right and equitable, and defendant will ever pray, etc.
(3.) Defendant further says A. T. Finney paid for the use
of said sum of $1,400.00, so by him borrowed from plain-
tiff, under agreement to that effect, interest at the rate of two
and a half per cent, per month for nineteen months, begiuning
January 2d, 1873, and continuing till August, 1S75, being
$513.92 more tlian legal interest, and which sum was never
credited on said claim, and to secure the payment of said
claim uncredited by said sum of ^.513.1i2, his defendant is
advised and believes should, in contcjiiplation of law, have
been done, the arrangement aforc^iiid was made betweeu
plaintiff, defendant, A. T. Fiiini-y, and t!ie assignee in
bankruptcy, to formally sell the pmperty in dispute, and
the sale be made tu plaintiff, and defendant insists that the
amount due plaintiff should be reduced by the said sum of
$513.92 — as if credited August let. 1875.
(4.) Defendant further pleads tlic faets set forth in the
former plea and its amendments, and siiys the deed made
by the assignee in bankruptcy of A, T. Finney to plaintiff
for the property in dispute, is void by reason of said facte,
and as the same was made to secure tlie payment of a usn-
riouB debt as aforesaid.
(5.) For further plea defendant pleads that oii or abont
June Ist, 187y, tiie sheriff of Fultori county, under and by vir-
tue of a justice conrt_^.ya., levied on and eold faid property
in dispute, to-wit, all the interest of defendant and plaintiff
in said property, to one W, I. Ileviviird, and made hini a
deed to the same, and in enforce rut.- :it of his right said Hey-
wood was proceeding to have Dm slieriff tnm defendaul
FEBRUARY TERM, 1880. 513
FiDDcy vs. Bramby, trustee.
out of possession of said property, and defendant was com-
pelled to file a bill in equity to restrain said sheriff from
turning defendant out of possession of said property, and to
seek a decree to set aside said sale. Said suit is still
pending in the superior court of Fulton county, and the par-
:amount legal title is still in said Hey ward and not in plain-
tiff, and defendant says plaintiff consented to, and still ac-
quiesces in, said sheriff's sale; and this the defendant is
ready to verify.
On motion of plaintiff's attorney the pleas filed in the
above case were stricken, with the exception of the first
4ind second pleas.
The jury returned the following verdict on the second
plea:
" We, the jury, find that there is due to the plaintiff
on account of purchase money of the premises in dis-
pute, the sum of two thousand eight hundred dollars ;
and we find that the defendant be allowed thirty days
within which to pay the same, and that in default of such
payment the said property be sold, and out of the proceeds
•of said sale the said sum of two thousand eight hundred
dollars be paid to the plaintiff (in full satisfaction of all de-
•mands for purchase money, tax and insurance), and the
balance, after paying costs of this suit and of said sale, be
paid to the defendant.
1. The pleas in regard to the usury come within the
principle ruled by this court in J^verett vs. The Planters
Banh^ 61 Oa.^ 88, and are controlled by it.
2. The fifth plea is defective because it does not allege
the ground upon which the complainant in her bill seeks to
«et aside the sale of the land. If she seeks to set it aside
•on the ground that the sale was void, then there was no
-outstanding title in Hey ward which would defeat the plain-
tiff's recovery. There was no error in striking the third,
fourth and fifth pleas of the defendant.
3. Under the statement of facts disclosed in the record
ilhere was no error in allowing the verdict to stand.
L et the judgment of the court below be affirmed.
SUPREME COURT OF GEORGIA.
Fblkbb vs. Calhoom, execntor.
C&lboua purcbased mill propertj, the dftm ftll&cbed to wbicb is allcgwl
to have caused damage by flooding laod above :L No request was-
made for lilm to lower the dam. Be leased to Cbaae, who repaired
the dam, and the land waa flooded. There was evidence on which,
the jury could pruperlyflnd that Calhoun did not increase the capac-
ity of the dam while he was in possessson.
HM, ihal on a suit against both, a verdict in favor of Calhoun wii-
righl.
NuisaDce. Actions. Damages. Before Jadge Mo-
CuTCHEN. Catoosa Superior Conrt. August Term, 1879.
Felkersned Cbase and Calhonn. (now represented hy Cal-
houD, executor,) for damago^ imiislhI hv tlie overflow of
plaintiff's land, resaltingfrotn ;i [uill (Jjun. On the tifat the
evidence waa, in brief, as follows: Some time between
1840 and 1850, one Jobe and l]is brollicr first built the {Urn
by cntting down two trees on opposite sides of a creek, and
piling on stonee, dirt, etc. Tliis did not prove very sbible,
aod would be go washed by spring freshets as to require
freqnent bnilding upon it. C>il!ioun hceanie possesaed of
the mill property in 1862, through a line of vendors rnn-
ning back to Jobe. It seems tiiht the dam was kept up
until 1864, when the federal forcus destroyed the mill, and ,
the dam was washed away. It whs rebuilt in 1866. Iikl
1870, Calhoun leased the property to Chase, guarantc«ili^fl
the use of the head of water iit llmt lime. Chase repain)
the dam, and plaintiff insists irjc-rtiascd the floodiiij; nf t
land. The evidence as to what was tiie head of waleri
different times was not very trluar. The jnry found i
defendants. Plaintiff moved for a new trial. The
refused it as to Calhonn, executor, beeatisu tlie jnry conl
properly find fiom the evidence that his testator had n
increased the flooding while he was in possession, and I
cause no request to abate was shown. He granted the B«l
trial as to Cliase, becanse of evidence that he had incr«
the flooding.
FEBRUARY TERM, 1880. 515»
Felker w. Calhoaa, cxecator.
A. T. Haokbtt ; R. J. MoCamy, for plaintiff in error.
W. K. Moobb; W. H. Payne; T. R. Jones, for defen-
dant.
Jackson, Jnstice.
This snit was brought for backing water on Felker's land
by him against Chase and Calhonn, and the verdict was for
both defendants. Whereupon a motion was made by plain-
tiff for a new trial, which was granted as to Chase, bnt re-
fnsed as to Calhonn, and thereupon Felker excepted to the
judgment refusing a new trial as to Calhoun.
Chase was the lessee of Calhoun, and the latter guaran-
teed to the former the right to keep the water at a certain
height, which the presiding judge thought that the evidence
was sufficient to show the jury did not raise the water be-
yond the height it had attained when he, the defendant
Calhonn, bought the mill and water-power ; though Chase,,
the leasee, had tightened the dam, and thereby raised the
water higher. No request to abate the nuisance, or, in
other words, to lower the dam, had been made to Calhoun,
the alienee of the grantor from whom he bought, and, there-
fore, the court refused a new trial as to him, under section
3001 of the Code. That section, in part, is in these words :
* * * "The alienee of the property causing the nuisance
is responsible for a continuance of the same. In the latter
case [that is, where the alienee is sued] there must be a
request to abate before action is brought."
To the same point is the case of Bonner vs. Wellborn, 7
Oa.^ 296, and that was an action for overflowing land.
So the court was right to refuse the new trial as to Calhoun
on this ground ; and as there is no pretense that any request
to abate the nuisance was ever given to him, this point will
conclude this case so far as he ie concerned, and he only is
concerned in this bill of exceptions which the plaintiff*
brings here. It is unnecessary, therefore, to consider the
516 SUPREME COURT OF GEORGIA.
Picqnet vs. The City Ooancil of Aagasta ei al.
other grounds of the motion, especially as the ruling of the
court is put on this, and none other was ruled bj the
judge.
Judgment affirmed.
PiCQUET V8. Thb Crry Council of Augusta et al,
1. Where a bill is filed to set aside a deed made under a tax snle, the
amount of taxes admitted to be due must be tendered. It is insuffi-
cient to offer to allow the city to retain a sufficient amount out of
the proceeds of the sale, for this would result in the taxes being paid
out of the purchaser's money whilst his deed would be canceled if
the litigation resulted in favor of complainant.
13. After a judgment sustaining a demurrer to a bill in equity has beea
affirmed by this court, the complainant cannot amend unless the
proposed amendment makes a case for equitable relief beyond t
reasonable doubt; nor even then, if there has been apparently need-
less delay, or if the complainant has had his day in court (hereon.
Equity. Tax. Amendment. Before Judge Snkad.
Richmond Superior Court. October Term, 1879.
Reported in the opinion.
A. D. PiCQUET, in propria persona ; F. H. Millbb;^.
8. & W. T. Davidson, for plaintiff in error.
Wm. Gibson ; S. F. Wbbb, for defendants,
Obawford, Justice.
The plaintiff in error was in arrears, as appears by the
record, for his municipal taxes due the defendant in error
for the years 1875, 1876, l5J77, 1878 and for which//«.
were issued in each of those years, and finally levied, No-
vember 29th. 1878, upon a house and lot as the property of
the said plaintiff in error, which was advertised for sftle
January 7th, 1879, but to which an affidavit of illegality wn
filed, and the sale postponed to the Ist of April next there-
FEBRUARY TERM, 1880. 5 IT
Picqaet vt. The City Council of Aagusta et al.
after, and then sold, and bought by William I. Freeman, at
three hundred dollare, to whom the city sheriff made a
deed.
On the 6th of January, 187D, plaintiff in error presented
his bill in equity to the chancellor, praying an injunction
restraining the sale of said house and lot, and for relief
against the tax fi, fas. then proceeding against him, which
application for injunction was refused. The bill was filed
regularly in the supeiior court, and subpoena issued, after
which a supplemental bill making Freeman the purchaser
a party, and certain amendments were made thereto. To
all of which a demurrer was filed at the first term of the
court upon three grounds:
1. That complainant disclaimed hatting any title in
himself.
2. That the grievances complained of were cognizable
and relievable in a court of law.
3. That no tender of the amount admitted to be due for
taxes was made, nor offer made to pay the same.
The complainant then amended his bill by striking out
the words, " while not the owner of any real estate in fee
simple," and also alleging that he had personal property
«nfficient to satisfy the said executions. The defendants
demurred to the bill as amended, because there was still no
equity in the same, which demurrer was sustained and the
bill dismissed. A writ of error brought that ruling to this
court where the same was affirmed. Pamphlet decisions
September term, 1879— p. 62.
Before the remititur was made the judgment of the court
below, the plaintiff in error again amended his bill by alleg-
ing that he was the owner of the property, and attached a
copy of his deed as an exhibit tliereto. lie further offered,
by way of additional amendment to meet the second ground
of demurrer, to allow certain sums to be retained by said
city council out of the sale of his property to meet what-
ever amount might be found to be due, and in that way
tendered that much of the said fund, on a fair assessment
618 SUPREME COURT OF GEORGIA.
Picquet rt. The Ciiy i out ell of Anf^eta et at.
to h^ made oi the house and lot, which is alleged to be worth
only one thonsaud dollars and not the assessed valae. Upon
considering these amendments thej were held by the court
insnfiicient to entitle the complainant to the relief prayed,
and he refused to allow the same, and dismissed the bill, to
which judgment of the court the complainant excepted
and assigned the same as error.
1. The question therefore before this court 13 whether
the judge committed error in refusing the amendments for
insufficiency, and also in dismissing the bill.
The original bill was dismissed because complainant
sought to set aside the sale of a certain house and lot which
had been sold for taxes, part of which he claimed to be
legal, and a part illegal, and by the allegations of his bill
he disclaimed the ownership of the property ; and also, be-
cause he failed to make a tender of the amount admitted
to be due for taxes thereon.
Admitting that the amendment as to title is sufficient,
without explanation as to the conflicting allegations made
by the complainant, who seeks the aid of a court of chan-
cery, does he make any tender of payment of the taxes dne
upon the property sold ? The offer is that the city retain
of the purchaser's money enough to pay the amount fonnd
to be due, whilst the whole of that sum must be refunded
to the purchaser himself, if the sale were set aside as prayed
for. So that no payment or offer of payment is made by
the complainant, as he, if his prayer were granted on the
hearing, would have his house and lot back, and the taxes
paid out of the purchaser's. Freeman's, money.
2. Besides, there is nothing set up either in the first or
second amendment except matters existing and well known
to complainant before the demurrer was sustained, and
therefore some accompanying allegation explanatory thereof
should be required. After a demurrer has been sustained
by this court on a writ of error, the superior court will not
allow a complainant to amend his original bill unless the
amendment proposed makes a case for equitable relief be
FEBRUARY TERM, 1880. 519
Bliealj, gaudUn, w. Totile ; ^hea'y m. Toole €t al.
jond all reaEoiiable doubt, nor even then if there has been
apparently needless delay in filing his amendment, or he
has had his day in court thereon. 08 Oa.^ 293 ; 61 Ga., 616.
We therefore hold that no error was committed by the
chancellor in refusing the amendments and in dismic^sing
the bill. This is done the less reluctantly since an examin-
ation of the bill itself does not show that the complainant
has Buch equities against the defendant as entitle him to the
relief prayed.
Judgment atiirmed.
Shsaly, guardian, cm, Toole; Shkalv vm. Toole et al.
1. Where land had been levied oa as ihc property of Ihe defendant,
under tifi.fa, for a balance of purchase money due therefor, and
had been claimed by the defendant as guardian of a minor, an equit-
able plea to the effect that he had wrongfully used money belonging
to his ward in paying part of the purchase money for the land which
had been bought by him individually, which fact was known to the
plaintiff; that the plaintiff is insolvent, and that the ward is equit-
ably entitled to have the land, or that it be sold and the ward repaid
the amount of his funds which was used in the purchase, with a
prayer that the sale of the land be enjoined until a proper decree
can be rendered, was demurrablr, especially as there was no offer
to pay the balance due.
2 The amendment making a prochein ami for the ward the party
claimant instead of the guardian, was properly disallowed, as it
sought to introduce a new and distinct part}'.
Claim. Pleading. Parties. Guardian and ward. Equity.
Before Judge Cbisp. Sumter Superior Court. October Ad-
journed Term, l'i78.
Kfi.fa. in favor of Toole against Shealy was levied on
-certain land, which Shealy claimed as guardian of Susan V.
Shealy. Ue tiled the equitable plea set out in the decision,
which the court struck. It was then proposed to make the
minor, by Elbert A. Shealy as next friend, the party claim-
.ant in lieu of the oiiginal claimant, and thus assert her
SUPKEME COOitT OF GEORGIA.
Sbenly. gDardUn, v>. Tuole : libeily m. Toole tl al
equitable riglita. Tliie tlie court refnsed to allow. Tbe jory
fennd the property eiibject. Claimant excepted, and assipied
error on the above rulings,
Jno. R. Wohrill, for plaintiff in error.
Allen Fobt; Hawkins & Hawkins, for defendant.
Waener, Chief JtiBtice.
This was a claim case, on the trial of which the jary
fonnd the property eiibicot to the^./a. levied thereon.
1. The main ground of error insisted on here, which tbis
conrt can consider in the state of the record before uft, ii
whether the conrt erred in snstaining the demurrer to the
claimant's equitable plea Hied in the case, the substance of
which is, that the claimant purchased a tract of land from
the plaintiff in fi.fa., and that the plaintiff has obtained
a judgment against him for the balance of the pnrcbase
money duo therefor, and had the land levied on to satief;
the same; that he, the claimant, took $1,070.00 of liis
«Mri]'n iiiuin'v iirid [lyiii il In riif piiiiutiJT in [wrt paviiicin
of liis own (iebc lor llic land, and that the plaintiff knew
that it wus his ward's money when he received it in part
]tiiynient of tlieciaiinant's individual debt for the land; that
the piaintiS is insolvent, and that his ward is efjnitabh
LTititlud to have tliu land, or thiit it he sold and his ward In-
jjaid the $l,OT'i.O0 out of tiio proceeds thereof, with a prayer
that tliR conrt enjuin tlio sale of the land as hie property.
under ihc /'../*"■ issued against him for his individual dehi.
until H proper decree can be had in the case. There wm
no error in sustaining the demurrer to the claimant's cjail
Hblti plea, inasmuch as he seeks to prt-vent the sale of (ii»
own land by interposing u claim therefor as guardiiifi for
his wani, who liad no title to the land, on the ground thfli
he had committed a breach of trust na such guardian, U
appropriating $1,070.00 of his ward's money in hie liand^
to ltaidiiBtt|of hit individual debt dne to Toole, in iniri
FEBRUARY TERM, 1880. 521
Bhett, troBtee, tit. The Gcoi^a Land and Cotton Co.
payment for the land claimed, without f)ffering to pay the
balance of the purchase money due therefor, for which the.
judgment was obtained now being enforced against it.
2. There was no error in the refusal of the court to allow
the claim case to be amended by making Susan V. Shealy,
by her next friend, Elbert A. Shealy, a party claimant in
lien of Martin L. Shealy, in accordance with his petition
for tliat purpose. Code, §8480.
Let the judgment of the court below be affirmed.
Rhbtt, trustee, vs. The Geoboia Land and Cotton Company.
1. A defendant cannot waive the absence of jurisdiction of bis person
BO as to affect tbe rigbts of third persons.
t. Notice of the rights of a complainant in respect to land, by reason
of tbe pendency of his bill seeking to trace trust funds, cannot affect
a purchaser's title more than if a decree had already been rendered
in favor of complainant. If the decree would not have bound the
property in the hands of a third person, certainly notice of the pen-
dency of the bill would not.
3. One who buvs land at administrator's sale, takes it free from the
lien of judgments. The exception where a levy has been made be-
fore the sale (58 Oa.^ 451,) will not include a mere imaginary or con-
structive levy by reason of the filing of a bill to subject the land.
Jurisdiction. Waiver. Notice. Zi^ pendens. Admin-
istrators and executors. Judgment. Lien. Title. Be-
fore Judge Wbight. Dougherty Superior Court. Octo-
ber Term, 1879.
To the report contained in the decision it is only neces-
sary to add that the decree under which this levy was made,
specified that the amount recovered was a charge on the
land, and that it be seized and sold to pay the same.
C. B. WooTBN ; B. H. Hill, for plaintiff in error.
D. A. Vason; Wabrbn & Hobbs, for defendant.
HI BUPKEME OOURT OF GEORGIA.
Kh' It. (niitw, VI. Ttag Georela Luid ind CMiod Cd.
Jackson, Justice.
An execution, issned on a decree from Tronp superior
oonrt, was levied on a tract of land in Dougherty coaotj,
and the land was claimed. The execution and decree were
in favor of Rhett, as trustee of Mrs. Barnard, againet John
D. Barnard, administrator on the estate of her decease!
hushand, to recover large sams dne the wife as her separate
property from that estate, which the decedent had invebted
in property in this state, and particularly in this Und levied
on in this case. The bill on which this decree was based
was brought in 1860; and after the bill was brought, bot
before the decree was rendered, the land was adniinisteriMl
and sold ae the property of Barnard, the deed having been
made to him, and the title, to all appearances, being in him ;
at this sale, one Wetter bought the land and took posses-
sion, and afterwards sold and conveyed it to the claimant ;
all questions of law and fact were submitted to the judge
by agreement of the parties, and he held that the land wai
not subject, and to this judgment in favor of the claimant
the plaintiff in execution excepted, and the question is this:
Is this land subject to this decree in behalf of the wife, be-
cause her money bought it, notwithstanding the adminis-
tration of the land, arid its regular sale by the adminietre-
tor, and the purchase thereof at that sale by the grantor of
the claimant?
1. Counsel for plaintiff in error put the case upon the
doctrine of lis pendens, and the notice which, by construc-
tion, the purchaser at the administrator's sale had of the
equity of the wife in this land bought with her separate
estate. No actual notice is pretended to have been given.
The facts, too, seem to make it donbtfnl whether the ad-
ministrator resided in Tronp, where the bill was brought, or
in Clark : and though it appears that he consented to the
jurisdiction of the chancery court of Troup county, eaeh
assent could not bind third persons— 14 (fa., 580. There
was no jurisdiction of the subject matter in Tronp — itbetng
FEBRUARY TERM, 1880. 523
lUiett, tniBtee, vs. The Georgia Land and cotton Co.
land in Dougherty county — ^and the only thing which could
give jurisdiction in Troup, was the residence there of defen-
dant, or his waiver of jurisdiction ; and that waiver could
not affect this claimant.
2. But be this as it may, it is quite clear that notice by
the pendency of the bill in equity could not do more towards
subjecting the land than the lien of the decree could, if ren-
<lered prior to the sale by the administrator. If the sale by
the administrator operated to divest the lien of the decree,
even if it had been rendered before the sale, surely construc-
tive notice that the party was trying to obtain a decree,
could not prevent the sale from divesting any inchoate lien,
or effort to get a future lien. If, then, it be the law that
the administrator's sale gave to the purchaser at it a good
title over all judgments actually rendered before the sale,
even in the lifetime of the intestate, this purchaser got a
good title to this land, notwithstanding the fact that he
bought it at the sale while the bill to assert the wife's equity
and get a decree thereon to subject the land, was pending ;
for a decree will not bind the property of the debtor any
more than a judgment would bind it.
In 45 Oa., 685, 46 Ga,, 389, 49 Ga., 274, and 58 Ga.,
451, it is ruled that the purchaser at such sale does get a
good title over any judgment lien« especially where the
estate is insolvent, even over a judgment obtained in the
lifetime of the intestate ; and that the lien is transferred
from the property sold to the proceeds in the hands of the
administrator. And in 59 Ga,, 516, the same rule is applied
to the specitic lien of a mortgage. So that it seems clear,
that even if this were a case where notice from lis pendens
would apply to this purchaser, who had no actual notice,
and bought the land under regular administrator's sale in
another county where it was administered, and title reg-
ularly conveyed to him, the decree being rendered in a
county foreign to the administration of the estate, and where
the land is not located, and defendant's residence therein
bein^ dnnhtfiil, still this regular and fair sale, under an
SM SUPREME COURT OF GEORGIA.
Tbe Uvor, etc.. of Amuiciu si. Bldiidgit.
order of the court of ordinary to sell this land for the par-
pOBe of paying the debts and aduiiDigtering the eatate of the
intestate, gave the purchaser a better title than is the wife's
eqaity, even if the decree had been rendered before the
Bale.
3. The counsel for plaintiff in error, seeing this result,
cited 2 Wallace, 249, and 7 Dana, 110, to show that the bill
operated as an equitable levy — with a view to put this case
■within Carlton V8. Pavant nt aZ., ex<ft:n(-ir^, ^^ Gu, 451,
where it was held that if the land wae levied un -aX tliu tirnt:
of sale the lien would not be divesti'd. Hut those cases
seem to reet on the fact that the bill w»s lirou^ht lu subject
the property where it was located, to j [ne existing judg-
ment at law — the case in 2 Wallace buirif; ;i mere reference
to 7 Dana. In 58 Ga. there was an aetual levy — a seizure
by the sheriff; and the reasoning there would not couBist
with a mere constructive or imaginary levy.
On the whole the judgment, we tJiink. is right, and it
must be afBrmed.
Thk Mayor, etc., of Amkhious ?<«. Elpriugk.
1. When a muDiclpal corporation U vested Willi puwtr to upeoslrcelt,
to cODdruct aidewallu, to lev; taxes, etc.. ir necvstutrlly implies tbe
right to insert a sewer in the sidewaJk lo carry off Uie surtaw
water, instead of an open dilcli.
%. Ad adjacent property owner is not entitk'tl 1o nn iaJuQCtioa upun
tbe ground Ihat the sewer wbirJi, io the di<crvlton of tlic municip^
authorities, is about to be toserted, ma; bi: luo ^inall for tbe volume
nf water which, at times, will necesaarity paa^ through it. tbui
flooding his lot, causing sickness, and otherwise damaging him
Injunction. Municipal corporations. StreeU. Before
Judge Cbibp, Snmter County. At ChMnibere, Febrnary
17, 1880.
■ Beo^ted in the opinion.
& Hawkins, for plaintiff in error.
FEBRUARY TERM, 1880. 535
The Mayor* etc.. of Americas vt. BIdrldge.
N. A. Smith, for defendant.
Obawfobd, Justice.
The controversy in this sait arose oat of the size and
location of a sewer by the plaintiff in error, at the inter-
section of Taylor with Lee street, and which was immedi-
ately in front of the residence of the defendant in error,
who was complainant in the coart below. His allegations
were, that the diameter of the sewer was only two feet,
whilst it shonld be three to carry off the water in the
heaviest rains. That this want of size will, at such times,
•cause the water to run over the sidewalk into the yard,
<!ellar, and back-lot, and that this flooding of his premises,
especially under his house, would be very likely to produce
«ickness, besides otherwise damaging his lot by washing off
the soil. That when he improved his lot, he, by the consent
of the then city council, turned the water slightly, and
•carried it into a ditch, in which it has passed ever since.
That the cost to the city would only be the difference
between a two and a three foot sewer for the distance of
«ome ten or twelve feet. Upon these allegations he
prayed an injunction against the city council to restrain it
from putting in this sewer across and underneath the side-
walk.
In obedience to an order nisi the defendant appeared,
and as its showing against the granting of the injunction,
filed objections in the nature of a demurrer, which were :
1 . That the city had power under its charter to open
streets, construct sidewalks and sewers.
2. That the city council was not liable to an action for
failing to provide sewerage, nor for the deflection or the
size thereof.
3. That there was no equity in the bill.
The cliancellor, declining to pass upon the bill and the
objections alone, heard the answer and the afSdavits, and *
thereupon granted the injunction, to which the defendant
excepted.
SUPREME COUBT OF GEORGIA.
There are but two questions involved in this case. Tbe
first h, whether the city conncil Dnder the power "to opea
and lay out streets for the good of the city, to direct snil
have sidewalks kept in order, and to levy a street tax" for
working the same, is authorized to put in a eewertocon-
dnct the surface water along ite streets instead of allovinfC^
It to pass in an open ditch.
The second, whether or not an injunction will lie bj »n
adjacent property owner to restrain the city aathoritie^
from exercising such control over the public streets snd
sidewalks as in their judf!;nient will make them inost sait-
able for the public safety and convenience.
1. Whenever there is a power granted to a mnniap»l
corporation to do certain specified things, such ae opening
and laying ont streets, constructing sidewalks, coupled wiHi
authority to levy taxes for repairs to the same, it neceeesrily
implies the right to do all things which may be required
for a proper execution of the power.
The complainant bnilt hie hoase at a low point fropting
Taylor street ; there is a sharp and steep declivity on thi»
street facing his house, down which the water rans, ioi >>
carried away by means of an open ditch, and the city pf^
poses to convey that water through a sewer inserted then'"
opon the sidewalk, and in no wise encroaching npon toe
lot of complainant. The power to repair the etreetf> ^^^
direct the keepiri'; of the siilewiilks, implies the power W
provide for the Howin<^ of tlie water in euoli way as too"
the least damage, :u\i\ to give safe transit over them to '""
public.
We think that (liis principle has been too long settle<l ^^
need further comrnent here. 1 Dillon Man. Cor., p&:^"
Howard, 147.
2. The seconil ([uestioii as to the right of the adjace"'
property ownertt lo aek hii injnnction to restraru the exni^^'
of such a power, !i« well ae the right to un action at laif ■*''
' damages, have been frequently before the courts. It *"'
be fimnd upon exaniiiiation chat in the inaltor uf overtl"*"
FEBRUARY TERM, 1880. 527
The Mayor, etc., of Americoe, r#. Sldridge.
ing the lands of another, there is & recognized difference be-
tween natural streams, passing within well defined and actaal
banks, and surface water cansed by rain or melting snow.
The obligation to keep the streets in repair involves th«
right to make changes in the surface of the ground, and
although such changes affect the adjacent owners injnri-
<»usly, where the power is not exceeded there is no liability.
Neither is the municipality bound to protect one from the
«urface water wlio owns land below the level of the street.
A municipal corporation is not liable to an action for
•consequential damages to private property or persons when
the act done is pursuant to a power conferred, and whether
-wise or unwise cannot be judicially revised or corrected.
1 Dillon Muu. Cor., §59 ; 2 7J., §781, 798, 7'J9.
We are unable to recognize any difference in principle
'between damages sustained whilst exercising a clear legal
Tight, by reason of cutting away the earth and leaving the
{property of an owner inaccessible from its elevation, and
the case under consideration ; each bought and improved
with the knowledge that the right existed in the city over
the streets to work, to raise, to grade, to drain, and unless
that legal right was exceeded, it would be but a case of
daffinum absque injuria. The case of a private or a public
nuisance is not to be confounded with those enumerated.
To suspend by injunction the legally authorized acts of
:a municipal corporation upon its public streets, for the safe
condition of which it is responsible, by adjacent owners
apon an apprehension of future injuries, would be to
^IIow the judgment of these private owners to arrest and
set aside that of the constituted authorities charged and
-entrusted with the performance of these especial duties.
To authorize such interference the acts complained of must
4>e uUra vires, 1 Denio, 595 ; 20 Howard, 135 ; 8
Allen, 139 ; 13 Gray, 601 ; 43 Qa., 67 ; 34 /J., 326 ; 28 lb.,
A% ; 23 lb., 402.
It follows, therefore, that the injunction was improperly*
jp»iit6d, and the judgment must be reversed.
B2S SUPREME COURT OF GEORGIA.
Dcndj «* . GuDblc A t'opalind.
Dendy vs. Gamble & Copeland.
Ad Indigent sister ftod her children, thnugh m'lin'j dependent on the
nppllCHiit for BUpport. do not constitute a fnmily for whose beaeSl
he can take & homestead. To constitute one bend of afnmily within
the meaning of the homestead cluuso of the constitution of ISflS,
there must b« some legal obligation on him to support its mem-
Homestead. Before Jndge Ckawford. Harris Stiperior
Court. October Term, 1879.
Keported in the det
Blanford & Gabbabd, for plaintiff in ermr.
BLorNT & Cameron ; Johk Pkabody, for defendants.
Wabnbk, Chief Justice.
This case came before the cotiit below on an appeal from,
the ordinary of Harris conntj, allowing to the applicant a
homestead exemption andertlK^constittttion of 1S6S. The
applicant in his petition allcgL'd tliat he was the head of ft
family conaisting of his eister, a widow about thirtv-eight
yeara old, and her three children, aged seventeen, fifteen
and seven years old, respectively, who arc indigent and
mainly dependent upon petitioner for support. The credi-
tors of the applicant demurred to his petition for a home-
stead on the ground that it did not show him tu bt; such
a " head of a family " as the law contemplates, to entitlo him
to a homestead. The court siistuincd the demurrer mid
dismissed the application, whereupon the applicant ex-
eepted.
Tho applicant was under no legal obligation tu support
the persons whom he claimed to be his family, and therefore
he was not entitled to a bomeatead as the head of such
family. 40 On., 173; 41 Oa., 153; 42 Ga., 405. If the
applicant could obtain a homestead as the head of a famil;
FEBRUARY TERM, 1880. 62»
Hill, admlniatntor, for nie, 9t. Sheibley,
of persons whom he was not legally bound to support, then
he might enjoy it for his own benefit exclusively, and refuse,
with impunity, to support those for whose benefit he
claimed to have obtained it.
Let the judgment of the court below be afiSrraed.
Hill, administrator, for use, vs. Sheiblbt.
1. "To constitute a valid gift, there must be the iutention to give by
the donor, acceptance by the donee, and delivery of the article
given, or some act accepted by law in lieu thereof." Code, §2657.
Delivery of a non-negotiable written instrument, without more, ia
not sufficient to prove a gift.
3. There was no abuse of discretion in granting a new trial in this case.
Promissory notes. Gift. Title. New trial. Before
Judge Undekwood. Floyd Superior Court. September
Adjourned Term, 1879.
Hill, as administrator of Joseph A. Davis, deceased^
brought complaint for the use of Eh'zabeth Davis, against
Bheibley, on the following written instrument :
" Received, Rome, August 13, 1866, of Dr. Joseph Davis, five hun-
dred dollars, to be approprinted on joint account to buying property
in the city of Rome, or in case of no investment to be returned.
(Signed) P. M. Shbibley."
Defendant filed the following pleas :
1. The general issue.
2. That the plaintiff is not the owner of the paper sued
on ; that the paper was sold by Hill, as administrator, and
bought by one Goodwin for defendant.
3. Discharge in bankruptcy.
4. That the debt had been paid in tobacco.
The usee claimed by reason of the following state of
facts, which the evidence in her behalf tended to show:
That Joseph A. Davis gave the instrument to his father,
who failed to collect it. Whether it was an absolute gift
J
530 SUPREME COURT OF GEORGIA.
Hill, admlDletrator, for um, m. Sheibley.
seems somewhat doubtful. Oii this point the testimony of
the father was as follows : ^^ He gave it to me to collect the
money on from Sheibley I can't say whether
my son gave it to me for my own use or not, as he gave it
without saying anything, but I think it was his intention
to give it to me for my own use." After the son's deatli
the father gave it to the widow. Her own testimony on
this subject is as follows : ^' I am tlie owner of said re-
ceipt. I got it from William Davis, father of Dr. Joseph
A. David, my husband, on or about the 20th or 2 1st day of
October, in the year 1867. Dr. J. A'. Davis died on the
18th of October, 1867. His father, William Davis, did not
reach Atlanta until the next day, and after his corpse had
been sent off for interment. Mr. William Davis had the
receipt in his possession ; claimed it as bis own ; said Dr.
Joseph A. Davis had given it to him some time previous;
but as Dr. J. A. Davis was now dead, and had left witness,
his widow, and one little child, he, Mr. William Davis, did
not think it was right for him to keep it, and that he
would give it to witness. Accordingly he then and there,
in the house of witness in Atlanta, at or about the time
above mentioned, and in the presence of Mrs. William Tay-
lor, of Macon, Georgia, delivered said receipt to witness as
her property, and there and then transferred to witness all
the right and title which he had and held to said receipt by
virtue of the previous gift of the same by Dr. J. A. Davis
to him. » » #
*' Said receipt was for a short time in the possession of D.
P. Hill, administrator. It came about in this way : When
William Davis gave said receipt to witness, within a day or
two after her husband's death, she had no place to keep any-
thing of the kind, and she naturally, as women similarly
fiituated would do, placed said receipt among her husband's
papers. When an administration was granted and an in-
ventory and appraisement took place, Mr. D. P. Hill took
possession of all the papers belonging to the estate, and
**nong the rest got into his possession the receipt of P.
FEBRUARY TERM, 1880. 531
Hill. •dmlDlstrmtor, for oae. tit. Sheibley.
M. Sheibley. As soon as witness found that Mr. D. P.
Hill, the administrator, had possession of said receipt and
claimed the same as the property of the estate, witness went
to him and claimed the same as her property, and npoti a
statement in snbstance as above to him, he, as administra-
tor, delivered the same to witness, and it has been in pos-
session of herself or of her counsel ever since."
Defendant, on the other hand, claimed that one Goodwin,
for defendant's ase, had bought this claim at administrator's
sale from Hill, administrator. The evidence showed that
Hill did offer at his sale what sometimes is called by the
witnesses " a note" and sometimes " a claim ; " that this in-
fitrnment or claim was on P. M. Sheibley, bore date August
13th, 1866, and was for $500.00 ; that Hill did not have it
at the sale, but told Goodwin, the purchaser, that he would
deliver it. He says the delivery was to be "when he found
it," and that he had never found it. Goodwin says that Hill
told him to call at his office for the paper, which he did
several times, but failed to get it. It also appeared that
Goodwin's purchase was made for Sheibley.
As to the other pleas the evidence was conflicting.
The jury found for plaintiff $500.00 principal, besides
interest. Defendant moved for a new trial, which was
granted, and plaintiff excepted.
R. D. Haevky ; Forsyth & Hoskinson, for plaintiff in
error.
Joel Branham, for defendant.
Jaokson, Justice.
This case was before this court in 57 6ra., 232, when a
new trial was awarded by this court. On a review of the
last trial, now before ns again for review, the judge granted
the motion to set aside the verdict and award a new trial
himself, and the plaintiff excepted thereto.
1. From the evidence disclosed by this record we cannot
532 SUPREME COURT OF GEORGIA.
t
Hill, admfnifltnitor, for use, vi. Rhelblejr.
say that the judge abased his discretion in having" the whole
case tried again. Its general countenance, to nse Jndge
Bleckley's simile, did not please him, and he granted the
new trial generally, putting the grant of it on no special
ground.
Passing by the question of law made as to the natare of
this debt, whether fiduciary or not in the sense of that
word as used in the bankrupt act, under the constraction
recently placed upon the word bj- the supreme court of the
United States in 5 Otto, 70i-708, we liardiy think that the
title to this receipt in the plaintiff in error through the al-
leged gift by her husband to her father, is sufficiently es-
tablished by proof according to the requisitions of the law.
Code, §§2657-2663 ; 1 Ga,, 601 ; 3 Ga., 520; 31 Ga,, 71-
108; Code, §2776; 41 Md., 466; 57 Mo., 427.
2. However this may be, it is manifest that in this case
there is no abuse of discretion in granting a new trial and
again investigating the questions made in the light of such
additional testimony as may be adduced. The discretion
is in the superior court, lodged there by the law, and it
cannot be taken from that court by this court according to
law, unless that legal discretion be abused so as to become
illegal in its abuse. This court sits only to review errors of
law ; and it is only when the grant of, or refusal to grants
a new trial becomes an error of law that this court can
legally correct the error.
Judgment affirmed.
FEBRUARY TERM, 1880. 68a
Wright et al. v§. Jamet.
Wright e6 al, vs. Jambs.
1. Where a party, in August, 1856, was arrested undei a ea. sa., filed
his schedule of property liable to sale, aud it was sold, and he dis-
charged under the act for the relief of honest debtors, leaving him.
in possession of fifty acres of land, which he held until the death
* of his wife, and the arrival at age of his children, it was no longer
under the operation of the exemption law of 1822 and the amend-
ments thereto.
2. A subsequent marriage of such a party would not re-establish the
exemption so as to inure to the use and benefit of the second
wife; to be enjoyed it must be renewed. Therefore, a deed by the
husband and the wife of the same to secure a debt contracted in
1875, was a valid agreement, and the debt must be paid before any^
equitable rights therein can accrue *.o the grantors, and poverty and
age alone, distressing as they are, cannot create an equity in such
grantors sufficient to defeat their deed.
InjanctioD. Homestead. Contracts. Deed. Before
Jndge Speeb. Henry County. At Chambers. February
12th, 1880.
Reported in the opinion.
BoTNTON & Hammond, by brief, for plaintiffs in error.
Stewart & Hall, by brief, for defendant.
Cbawford, Justice.
In 1875 William L. Wright and Mary B. Wright made &
deed to David James to certain land therein named, to secure
the payment of a debt. Wright rented the land in 1876,.
'77, '78, «md, refusing to give possession in 1879, James
sued out a warrant against him as a tenant holding over, to-
which a counter alBdavit was filed, and upon the trial the
issue was found in favor of James. When Wright was
about to be dispossessed, he and his wife filed a bill setting
up as their equity in the land, that the same was a home-
stead, and had been exempted from levy and sale in August,
1856, and therefore could not be sold by them; that the
634 SUPREME COURT OF GEORGIA.
Wright et al, ««. James,
deed to James was tainted with usury and void ; that Mary
B. Wright was the beneficiary of the homestead, and no act
or deed of Wright's could affect her claim ; that the debt
had about been paid, and that their rights, under the home-
stead, had not been passed upon in the trial had to oast
them. They prayed that their deed to James may be de-
clared void, and if it should be made to appear that Wright
is still indebted to James, and that the land is subject
thereto, that it be sold to pay the same. They further pray
for general relief and injunction against their being re-
moved. The defendant answered complainants' bill, deny-
ing that the land was ever set apart as homestead, but says
that in August, 1856, W. L. Wright, having been arrested
under a ca. sa.j filed his schedule under the act for the relief
of honest debtors then of force, and that an order was taken
for the sale of such of his property as was liable, but nothing
further was done by the said Wright or the court, except
to discharge the said defendant from imprisonment De-
fendant admitted suing out the warrant against him, to
which a counter affidavit was filed and a trial had in April,
IS79, in which the issues arising under this bill were passed
upon and found in defendant's favor, but that he allowed
the complainants to remain in possession for the balance of
the said year, 1879. That Mary B. Wright was present and
sworn as a witness at the trial, and that the question of the
deed's being tainted with usury was also passed upon, and
found in defendant's favor. Defendant further set up the
fact that the family of the said Wm. L. Wright, as it existed
in 1856, was dissolved by the death of his wife, and the
children having attained their majority, and that the present
wife has no claims upon the homestead set apart in 1856,
even if any had been set apart, as she had intermarried
with the said William L. in the year 1870.
The judge, upon considering the bill, answer and affidavitSi
refused the injunction, and the complainants excepted.
An examination of this record brings us to the same
conclusion reached by the judge below, that the complain-
FEBRUAKY TERM, 1880. 535
In fif Bradley.
ant8 were not entitled to the injunction prayed for, and that
no error was committed in refusing it.
1. Where a party in, August 1856, was arrested under a
ca. aa.^ filed his schedule of property liable to sale, and it was
sold, and he discharged under the act for the relief of honest
debtors, leaving him in possession of fifty acres of land,
which he held until the death of his wife, and the arrival
at age of his children, it was no longer un<]er the operation
of the exemption law of 1822, and the amendments thereto.
2. A subsequent marriage of such a party would not re-
establish the exemption so as to inure to the use and benefit
of the second wife ; to be enjoyed it must be renewed ; a
deed, therefore, by the husband and wife of the same to secure
a debt contracted in 1875, was a valid and binding agree-
ment, and the debt must be paid before any equitable rights
therein can accrue to the grantors, and poverty and age
alone, distressing as they are, cannot create an equity in such
grantors sufficient to defeat their deed.
Judgment affirmed.
In re Bradley.
A judgment was rendered on January 27tb, 1875, disbarring an attor-
ney from the courts of this state. On February 15th, 1876, an act
was passed providing that " all proceedings of every kind in any
court of this state, to set aside judgment and decrees of the courts,
must be made within three years from the rendition of said judg-
ments or decrees." On May 24th, 1879, a motion was made to set
aside the order of removal :
UM, that the motion was barred by the statute. If injustice has beeu
done the movant, his own lachen prevents this court from granting
him relief.
Statute of limitations. Motions. Attorneys. Before
Judge Fleming. Chatham Superior Court. May Term,
1879.
Reported in the decision.
i^y. SCPEEICE COUBT OF GEORGIA.
fct»Bi.aTr -—- ^ -
A. A- Bnd'.ej. in propria p-trtoma, for plaintiff in error.
H. B. T»3ip»:na. br S. B. Adama. eontra.
Wab.ihk. Chief Jostiee.
Tlii* waf a motioo made in tbe coart below to aet uide
a judgment reiuorio^ tbe plaintiff in error as a practinng
lawyer :d tbe conrts of this state. The court refneed tbe
motion, and tbe movant excepted. It appears from the
record that the jadfrment of removal was rendered on the
27th of Janaarj, 1S75. The motion to eet aside and vacate
the judgment was made on the S4th of May, 1879, more
than three yeara after its rendition, and more than three
years after the passage of the act. Febniarr 15tb, 1876,
which declares, that from and after its paseage "all pro-
<:eedingB of every kind in any conrt of this state, to set
aside judgments and decrees of tbe conrts, must be made
within three years from the rendition of said jndgtnents
-or decrees." The plaintiff in error insists that the judg-
ment of removal was iil^al, and did him great injustice.
However tbat may have been, it is now too late for ns to
relieve him in view of the express provisions of the act of
1876, which absolately barred bis remedy to set the judg-
ment aside before he made hie motion for that pnrpo^.
If the plaintiff in error has had injtialicc done him. we can
only regret that his own laches, under the stern provisioiiB
of the act of 1876, will prevent this court from affording
him any relief, however willingly we wonld otberwise have
Wone BO. The statute of the state epeake like a tyrant, and
courts and people are hoand to obey it.
Let the jndgment of the conrt below be affirmed.
FEBRUARY TERM, 1880. 63T
Fori tv. Kennedy.
FoED V8, Kennedy.
1. Where suit was brought against defendants as partners, and one
having died, it proceeded against the other as surviving partner,
the plaintiff was not competent to testify concerning transactions
between himself and the deceased in the absence of the survivor.
If the interrogatories of the decedent were in court, the attention of
the presiding judge should have been called to the fact.
2. The mere belief of a witness as to facts not in his knowledge is
inadmissible.
8. On an issue of partnership or no partnership, the sayings of one
who admitted himself to be a partner, were not admissible to prove
that another, who denied being a partner, wtis in fact such.
4. Admissions of one who denies being a partner are admissible to
prove him such.
5. The mere general understanding of a witness, not based on facts, is
inadmissible.
0. An admission of evidence, which, if error at all, was so slight as to
be harmless, is not ground for a new trial.
7. Where suit was brought on an open account, to which the statute
of limitations was pleaded, and certain items were relied on to talce
the whole account from under the bar, they must not only be
pleaded but also proved.
8. It was not error for the court to refuse to charge that admissions,
when clearly proved, became evidence of a high character. The
jury should determine the weight to be given to evidence. "All
admissions should be scanned with care."
9. The verdict is not contrary to law or evidence.
Witness. Evidence. Partnership. Charge of Court.
Statute of limitations. Verdict. Before Judge MoCdtchbn.
Catoosa Superior Court. September Term, 1879.
To the report contained in the decision it is only neces-
sary to add that the following were among the grounds of
the motion for new trial :
(1.) Because the verdict is contrary to law, contrary to
<>vidence, strongly and decidedly against the weight of the
evidence, and against the principles of equity and justice.
(2.) Because the court ruled that plaintiff was not com-
petent to testify as to transactions and conversations between
him and John D. Gray, not in presence of Kennedy, said
538 SUPREME COURT OF GEORGIA.
Ford tv. Kennedy.
Gray being admitted to be dead. The interrogatories of
John D. Gray were in court, and taken at the instance of
himself.
Note by the judge : "The court's attention was in no
way, during the trial, called to the fact tliat John D.
Gray's testimony liad been taken, and was in court, and no
point was made to the court about it in any way.''
(8.) Because the court erred in admitting, over plaintiff's
objections, the ninth interrogatory and the answer thereto of
Allen Kennedy, as follows : Interrogatory ninth : " State
whether or not you frequently spoke of John D. Gray to
others as your old partner, and whether or not John D. Gray
frequently spoke of and introduced you to others as his
old partner." Answer to ninth interrogatory: "I have;
he did."
(4.) Because the court, on defendant's objection, ruled out
the following of the answers of Homer Blackman : ^' He
has heard said Gray say repeatedly that all of them (mean-
ing Gray, Kennedy & Chamberlin) were partners in said
contract, and jointly interested therein." * * * * "He
has heard said Gray say several times that they were part-
ners in said contract, (that is, said Gray, said Kennedy and
said Chamberlin)."
(6.) Because the court ruled out that portion of the
answer of B. E. Wells to the fifth direct interrogatory, as
follows : **The whole transaction was for J. D. Gray &
Co., as I then believed, and now believe, from what Gray
told me, and from my knowledge of the business of J D«
Gray & Co. upon the railroad of which I had charge."
(6.) Because the court erred in not permitting all of P.
E. Well's answer to fifth direct interrogatory to be read
without striking out any part of it, to-wit : '' At the time
J. D. Gray made me the offer as stated in answer to fourth
interrogatory, he stated that himself, Allen Kennedy and said
Mr. Chamberlin, whose given name I don't remember, coin-
posed the firm of J. D. Gray & Co. This-was befort
Gray & Co. borrowed the money as aforesaid. It
FEBRUARY TERM, 1880. 639
Ford vt. KeDnedj.
when the work was first commenced. (Mr. Chamberlin
also told me the same thing at tliat time, and afterwards, I
think.) About the time J. D. Gray & Co. conimenced
work on their contract near Troy, Ala., Allen Kennedy and
myself traveled in a stage coach together from Linwood to
Troy, Alabama. On that trip we had a conversation abont
Gray & Co.'s contract. In that conversation, as I now
remember it, Kennedy told me he was a partner in the con-
tract with Gray. Kennedy was present upon the work
about the time it was commenced — remained about one
month. (It was generally understood — I understood it —
that Kennedy was Gray's partner in this grading contract,
which is the contract I have alluded to in my previous
answers as the contract of J. D. Gray & Co.)." The court
ruled out the portions enclosed in brackets, allowing the
balance to be read.
(7.) Because the court erred in admitting, over plaintifPs
objections, the following portion of Charles Chamberlin's
answers to interrogatories: *'In the limited interviews I
had with Mr. Ford, he always spoke as a partner inter-
ested. * * * * In all the conversations I
had with Ford, he always spoke of Gray as being the prin-
cipal partner."
(8.) Because tlie court, after having charged that " all ad-
missions should be scanned with care," erred in refusing to
give in addition this request of plaintiflTs counsel, that
*' while admissions should be scanned with care, yet, when
clearly proved, they become evidence of a high character."
(9.) Because, after charging that an entire account is not
barred until four years from the date of the last item,
added "which is proved. This doctrine applies only when
there are mutual accounts and dealings between the
parties."
D. A. "Waiter; J. E. Shumate, for plain tiflE in error.
B. J. MoCamy, for defendant.
V64-M
540 SUPREME COURT OF GEORGIA.
Ford Of. Kennedy.
Jaokson, Justice.
Ford brought suit on an account against Gray, Kennedy
& Cbamberlin, as co-partners engaged in work on the Mo-
bile and Girard Bailroad, in the state of Alabama, under the
alleged name and style of Gray & Co. Chamberlin was
not served, Gray died pending the suit, and the contest
narrowed to a single-handed fight between Ford and Ken-
nedy as the only surviving partner sued and served. The
jury found for Kennedy ; Ford moved for a new trial, it
was refused, and he excepted.
The issues are, was Kennedy a partner in the company
of Gray & Co.? If not, did he virtually become one as to
third persons by holding himself out as a partner, so that
credit was given Gray thereby on account of Kennedy
having been considered a partner ? and especially, did he so
act as to authorize Ford to consider him responsible as
a partner? and if Kennedy was a partner or held himself
out as such, waa not Ford also a partner of the same firm
and, therefore, not entitled to recover from the firm, the
debts to third persons not having been paid } and, if all
these issues be decided for Ford and against Kennedy, is
not the account barred by the statute of limitations t
On the trial of these issues Ford alleges in his motion
that the court erred in admitting and rejecting evidence, in
charging the jury and, in overruling the motion and sus-
taining the verdict, though against the evidence and the
law.
1. First, as to the ruling of the court on the testimony.
Gray being dead, was Ford competent as a witness under
the Code, section 3854 1 Gray had been a party actually
served. The suit went on against the surviving partner,
and a judgment would bind the partnership assets in which
Gray's estate was interested. To the transactions between
Gray, the deceased partner, and Ford, in the absence of the
other partner, Ford was therefore incompetent, Gray be-
ing dead and his mouth diut. Mark, the attention of the
FEBRUARY TERM, 1880, 641
Ford t». KenDedy.
presiding judge was not called to the fact that Oraj's inter-
rogatories had been taken and that the answers were in
•coTirtv Under the facts disclosed in this record, the presid-
ing jadgo did not err in restricting the testimony of Ford
as he did, that is, in permitting him to testify (about what
passed between him and Gray touching the partnership)
•only to conversations in Kennedy^s presence. McGhee V9,
Janes et oL., 41 Oa., 123 ; 42 Oa,, 120 ; 44 Oa., 46. And
all sayings of Gray, in the absence of Kennedy, were prop-
-erly ruled out.
2. The mere belief of Wells was also properly ruled out.
3. The sayings of Charaberlin about Kennedy being a
partner, were inadmissible in Kennedy's absence. The issue
was whether Kennedy was or was not a partner, and that
fact being in dispute, what others who acknowledged
themselves to be partners merely said about it, is hearsay.
4. What Ford said about his. Ford's, being a partner was
admissible, just as wliat Kennedy said about his, Kennedy's,
being a partner, was admissible ; but what others said in
their absence was hearsay.
5. The mere general understanding of a witness, not
based on facts, is inadmissible.
6. Testimony was in that Gray had introduced Kennedy
as ills partner, and this was denied by Kennedy, who said
that on the occasion referred to he was introduced as his
old partner — they having been partners in a former ven-
ture. On this state of facts, the court allowed Kennedy to
testify further that it was the habit of Gray and himself to
introduce each other as '^ my old partner," and this is as-
signed as erroneous. It threw light, we think, on a point
in dispute. Besides, Kennedy had positively sworn that he
was not so introduced, and if the jury believed that, the
other did not hurt — at all events, if error, it is so slight as
to be considered harmless. These views will cover the ex-
ceptions as to testimony.
7. In respect to exceptions to the charge, we think that
the court was right to tell the jury that the items of an ac-
SUPREME COURT OF GEORGIA.
count relied upon to tnke the whole accouot without the
Btatnte of limitatione, must beproven as well as charged on
paper — otherwise one might keep an account withont the
statute forerer, by the mere addition of items witlioat proof
of their reality.
8. Nor do we think that it was the duty of the court to
tell the jury that admiseions, when clearly proven, became
evidence of a high character. It was for the Jury to weigh-
the testimony, and to give it that character to which its
weight entitled it. Our statute declares, in respect to the
weight of snch testimony, that "all admissions should be
scanned with care, and confessions of guilt should be re-
ceived with great caution "—Code, §3793. The court
charged the first clause of that section in respect to admia-
eions, and there left it. We see no impropriety in his
having done so.
The exception to the charge in respect to the statute of
limitations, was not insisted on here.
9. So we are brought to the ground that the verdict is
contrary to the law and the evidence, for the grounds that
it is against the charge are merged in the higher gronnd that
it is against law.
While several witnesses testify to facts and circumstances
and admiseions going to show that Kennedy was a partner
of Gray, yet Kennedy is snetained in his own sworn testi-
mony by the contract between Gray and Blackman, which
was in writing, and could not He. That sets him out re-
peatedly as a mere surety, and sopport* his version of his
relation to the contract. That bound him to see to it that
Gray performed his contract with the railroad company,
but not to pay this debt which Gray owed Ford for supplies.
So in regai-d to hie holding himself out as a partner to Ford
the testimony is cioutlictiuj^, as well as in respect to the pluH
of defendant tlint Ford was liiniself a partner of (iray. auii
to the statute of limitations.
We think that the jury had evidence enough to suslain
the finding as legal, and no material error of law being inadw
FEBRUARY TERM, 1880. 648
Spence itaLvi. Cox.
by the presiding jndge, and the verdict being approved by
him, it is not contrar} to law, and the judgment overruling
the motion for a new trial is affirmed.
Judgment affirmed.
Si'ENCE et aL vs. Cox.
JL iiridow entitled to dower in certain lands levied on, though not yet
assigned, needs no injunction to restrain a creditor of the deceased
husband and the sheriff from causing a sale under the execution.
She can give notice at the sale of her rights ; purchasers will buy
subject thereto, and if they disturb her lawful possession it will be
at their peril.
Injunction. Dower. Before Jndge Wright. Mitchell
county. At Chambers. April 16th, 1880.
Beport unnecessary.
Bush & Lyon, by Jackson & Lumpkin, for plaintiffs in
error.
No appearance for defendant.
•Ceawford, Justice.
Mrs. Cox filed her bill against Spence and the sheriff of
Mitchell county. She alleged that Spence had become
possessed, by transfer, of a certain Ji. fa. against her de-
ceased husband, that it had been compromised or settled
in the hands of a former owner, but no entry to that effect
made, and that Spence took with notice, and was proceed-
ing to enforce it against certain lands left by her husband
at his death ; that she had filed an application for dower
in these lands, which was still pending on objections to the
return of the commissioners. She charges that if the j^./a.
was allowed to proceed, she would be irreparably damaged,
imd the title to her dower lands clouded. She prayed that
544 SUPREME COURT OF GEORGIA.
Wilcox, Gibht A Co. Of. Attltman.
the ^.ya. be canceled, and Spence and the sheriff be en-
joined from enforcin}2^ it.
The answer denied the leading allegations of the bill.
After hearing the bill and answer, and evidence in sup-
port of each, the chancellor granted the injunction, and
Spence excepted.
This case is controlled bj the ruling in Jackson A Co^
vs. Raineyy September term, 1879, pamphlet p. 94, and ia
accordance therewith the jndgment is rerersed.
Judgment reversed.
Wilcox, Oibbs & Company vs. Axtltuas.
When the maker of a negotiable draft or note paya it to one who has
not the possession of the paper at the time of anch payment so as
to enable him to take it up, but, instead thereof, takes a receipt for
the money so paid, sach receipt will not protect him from the pay
ment of the draft or note when sued by the bona fide holder thereof
before due.
Promissory notes. Contracts. Before Judge Simmons.
Crawford Superior Court. March Term, 1879.
Reported in the decision.
W. E. CoLLiEB, by brief, for plaintiffs in error.
K. D. Smith; M. D. Stroud; J. C. Ruthbsfobd, for de-
fendant.
Wakner, Chief Justice.
This was an action brought by the plaintiffs against tbe^
defendant on a draft drawn by him upon Messrs. Adams
& Bazemore, payable to his own order, and indorsed by
himself, for the sum of $88.70, dated 20th January, 1870,^
and due on the 6th day of November thereafter, with a.
crop lien annexed thereto. The defendant pleaded pay-
FEBRUARY TERM, 1880. 545
Wilcox, Qibbs & Co. w. Aoltouui.
ment. On the trial of the case the jury, under the charge
of the court, found a verdict in favor of the defendant.
A motion was made for a new trial on the grounds therein
gtated, which was overruled, and the. plaintiffs excepted.
It appears from the evidence in the record, that the
plaintiffs became the hona fide holders of the draft before
its maturitj for a valuable consideration, to-wit: in the
month of August, 1870, receiving the same from Lojd &
Sons. The defendant testified that the draft was given by
him for one ton of Frank Coe^s guano, purchased by him
from Bateman, who was the agent of Loyd & Sons, that
in the fall of the year 1870 he paid the draft to Loyd &
Sons ; who told him that they did not have it, but would
get it and send it to him in three days, and gave defendant
a receipt in full payment of the draft. The defendant
proved the payment of the money to Loyd & Sons, and
the taking of their receipt therefor by another witness, so
that the question is, whether the payment of the money by
the defendant to Loyd & Sons, who did not have the draft
at the time, was a good payment in law as against the plain-
tiffs, who, as the evidence shows, were then the honafde
holders of the draft. When the maker of a negotiable
draft or note pays it to one who has not the possession of
the paper at the time of such payment, so as to enable him
to take it up, but takes a receipt for the money so paid
instead of taking up his draft or note, such receipt will not
protect him from the payment of the draft or note when
sued by the hona fide holder thereof before due. 64 ffa.,
52. In view of the evidence in the record, the verdict of
the jury was contrary to law, and it was error in not grant-
ing a new trial upon that ground.
Let the judgment of the court below be reversed.
546 SUPREME COURT OF GEORGIA.
Williams ftf. BngiUh.
Williams vs. English.
/ •
4
1. Sayings of one party in the absence of the other, tending to estab-
lish his version of the contract, and which form no part of the re$
gestas, are not admissible in his own behalf.
9. Where the bill set up a parol sale of land by defendant to complain-
aut, which the answer denied, alleging that complainant was
wrongfully in possession of defendant's land, and asking the writ of
' possession, a verdict for the defendant, directing that the writ issue,
covers all the questions made.
Evidence. Verdict. Before Jnd^e Crisp. Macon Su-
perior Court. December Term, 1879.
Williams filed his bill against English, alleging, in brief,
as follows : Allen Williams, the father of complainant, died
on January 29th, 1867, seized of a certain described lot.
After his death his widow, Annie Williams, remained in
possession. In P'ebruary, 1874, the lot was sold at sherifiPs
sale, and English, who was the son-in-law of Mrs. Williams,
bought it. He threatened to dispossess her unless she paid
him $147/)0, the amount paid by him. This she was una-
ble to do, and complainant, who was her son, in order to se-
cure a home for her for life and for himself after her death,
contracted with defendant in parol to take the lot at
$147.00. One hundred dollars was paid, and no definite
time fixed for the payment of the balance. He moved on
to the place and took possession with his mother. Subse-
quently all of the purchase money was paid, except $9.50,
which complainant is ready and anxious to pay ; but Mrs.
Williams having died, defendant refuses to receive it, and
threatens to sell to other parties. The object of the bill
was to compel specific performance.
Defendant filed his answer in the nature of a cross-bill.
He admitted that Allen Williams died, leaving his widow
in possession of the lot. As to the other facts the cross-
bill gives the following account: Williams was in debt
before his death, and his family were left in needy circum-
FEBRUARY TERM, 1880. 547
, - ■ -
Williams r^. English
etaDces. Prior to his death defendant had loaned him
$90.00, and after his death defendant stood security for
Mrs. Williams and complainant to enable them to obtain
the necessaries of life. This debt he had to pay. His. only
chance of repayment was from the crop planted on this
place. Before it was gathered the land was levied on, and
he bought it at $147.00. He never threatened to dispos-
sess Mrs. Williams. On the contrary he informed her that
he only bought it to secure himself, that she could remain
on the premises as long as she lived, and that if she could
repay him what he had paid for the place, together with
what the estate owed him and what he had paid on the
security debt, he would make her a deed. He denied ever
making any contract or trade with complainant or that tlie
latter obtained possession with his knowledge or consent.
It is true that complainant handed him $100.00 (which was
all that had been paid) but it was paid for Mrs. Williams
and as her money, and the use of the property was worth
more than that amount.
The cross-bill prayed for delivery of possession.
Under the cross-bill, Greer, administrator of Mrs. Wil-
liams, was made a party.
Complainant answered the cross-bill denying all the ma-
terial allegations.
The jury found for defendant and that the writ of pos-
session issue in his favor against complainant. Complain-
ant moved for a new trial, which was refused, and he ex-
cepted.
For the other facts see the decision.
J. JR. WoREiLL, for plaintiff in error.
W. H. Fjsh ; T. P. Lloyd ; B. P. Hollis, for defendant.
Jackson, Justice.
Fort Williams filed a bill against English to compel the
specific performance of a contract for the sale of a piece of
648 SUPREME COURT OF GEORGIA.
WiUlanu «t. English.
land, of which complainant was in possession. The jorv,
on the hearing, found for the defendant and the court de-
creed accordingly, and the answer in the nature of a cross-
bill asking it, having been filed, it was further decreed that
defendant be put in possession of the land. The contract
set up in the bill i*e8ted entirely on parol evidence, there
being no scrape of a pen about it, and the evidence being
conflicting, very conflicting, we have no power legally to set
aside the verdict and overrule the presiding judge who ass-
tained it, unless the court coaimilted some error of law
complained of in the motion for a new trial.
Only two errors are assigned in addition to the ground
that the court erred in overruling the motion because the
verdict is contrary to law and the weight of evidence, the
second ground i)ot being certified to be true.
1. The first is that the court should have admitted the
sayings of complainant when he alleges that he sold a mule
to one Smith to get one hundred dollars to pay on the land,
the defendant not being present. The testimony was inad-
missible, being the sayings of one party to a stranger to the
suit in the absence of the other party, and no part of the
res geatcB in this case, to-wit, the transaction between
complainant and defendant. Besides, there was other evi-
dence that the mule was sold for the purpose, and nothing
in conflict therewith ; and the presumption, from the facts in
the case, is that Mrs. Williams paid complainant for it, as
his brother, who paid defendant the said $100.00, took back
an agreement or bond to make titles to Mrs. Williams by
the defendant, and not to make them to the complainant.
The complainant was not hurt by not getting in this hear-
say testimony.
3. The other ground is that the verdict docs not cover all
the issues made by the pleadings. It does cover all. The
only issues made are between complainant and defendant,
Oreer, the administrator of Mrs. Williams, making none
whatever. The bill of complainant and answer in the na-
ture of a cross-bill of defendant, make the only issues. The
FEBRUARY TERM, 1880. 54l>
Hamlin it tU. rs. Fletcher, executor.
bill asserts a parol contract for the sale of the land by de-
fendant to complainant; the answer denies it flatly, and
ETero that complainant is in possession of defendant's land
wrongfully, and withont the slightest title or agreement to
make title of any sort to complainant, and prays a decree
for a writ of possession — allejsring that defendant did agree to
convey the land to Mrs. TVilliams, complainant's mother
and defendant's mother-in-law, when she paid him certain
sums, which she had not paid, except the $1UO.OO, and that
this sum of $100.00 did not even pay the value of the rent
of the land which defendant allowed her to occupy till her
death.
These issues are all that the pleadings make, the verdict
for defendant covers them fully, and the decree thereon is
right.
Judgment aflirmed.
H^MUtf et al. VB, Fletcher, executor.
1. Under the constitution of 18SS and the act of 1869, the distinction
theretofore existing between grand and petit jurors was destroyed.
The names of Jurors, whether grand or petit, were drawn from the
same box, and the presiding judge might send litigants before the
twenty-four petit or the tweniy-three grand jurors in his discretion,
but there was no provision that if either should fail to furnish a
complete legal panel, he might supplement from the other. Under
the constitution of 1877 the distinction is re- established, and whilst
the grand jurors may be called upon in certain cases to do traverse
jury service, yet where all but fifteen of the grand jury have been
stricken for cause, there is no law to authorize the completing of
the panel to twenty- four from the list of traverse jurors.
2. The judge has not the power to indicate who shall be placed upon
a panel as jurors to complete it. Where the grand jury does not
furnish a full panel of competent persons, he has no power to direct
the Heric to supplement from the first names upon the list of traverse
jurors. These additions were talesmen selected by the judge, and
taken from a different class of persons from those whom he had de-
termined should try the case.
2. The attestation of a will must be made at a time and place where
the testator can see that he is not imposed upon, and can havecogni
550 SUPREME COURT OF GEORGIA.
Hamlin et al. vs. Fletcher, esecotor.
zance of the persons and the act. There must be no obstruction to
prevent his seeing it; his position must be such as to enable him,
without change of situation — not position — to see the witnesses sub-
scribing the will, by looking in that direction and bringing within
the scope of his vision the factum of the attestation.
Constitutional law. Jarors. Practice in the Snperior
Court. Wills. Attestation. Before Judge Hillteb. Mon-
roe Superior Court. February Term, 1879.
Reported in the opinion.
J. S. Pinckard; Bacon A; Rutherford; Stone & Tur-
ner; Bernbr & Turner, for plaintiffs in error.
J. D. Stewart; A. D. Haiimond; T. B. Oaba»ib8;
Henry C. Peeplbs, for defendant.
Crawford, Justice.
The defendant in error offered for probate in the coort
of ordinary of Monroe county a paper writing:, which he
he undertook to propound as the last will and testament of
Roderick Rutland, deceased, a caveat was filed thereto upon
several grounds, and the issue thus formed was carrried to
the appeal by consent.
When the case was called for trial in the superior court,
it was announced from the bench that the same would be
tried by a special jury selected from the list of grand jnrore.
After some objections, which we consider immaterial, that
body was bronglit into court, and, upon the request of
counsel for caveators, each member was put upon his WJ^
dir€y and all but fifteen disqualified themselves.
The judge instructed the clerk to proceed under the
voir (lire, calling the list of traverse jurors, and io
that way twentj^-four were provided and the trial proceeded.
A verdict was rendered for the propounder. CaveatorB
submitted a motion for a new trial upon several gronBda^
one of which was the manner in which the jury was selected.
The court refused the motion, and caveators excepteJ.
FEBRUARY TERM, 1880. 551
Hamlffa et al. vs. Fletcher, ezecator.
It will be conceded that if tbe jnry which tried this case
was an illegal jnry, that their finding was also illegal, and
that a new trial mnst be granted.
There are two objections to the formation of this jury ;
the first is, that under no law, and under no practice
known to us in this state can a special jury be composed of
one-half the members of a grand jury, and the other half of
the members of the petit juries. And the second is, that
under no law and no practice can a judge, when ascertaining
that any number of the jurors called to sit in a case are dis-
qualified, can select, indicate or direct, either through the
clerk or the sheriff, particular persons who shall be called
to complete the panel.
1. Prior to the constitution of 1868 jurors were divided
into two classes, and their names drawn from separate
boxes. The grand and the petit jurors of the same term
conld in no case serve together; petit jurors never served
upon appeal causes, nor grand jurors of the term in criminal
cansee. Their oaths were different ; the petit juror was to
try a case according to the evidence, the grand juror accord-
ing to equity and the opinion he entertained of the evi-
dence.
In 1868, however, the distinction was broken down by
the constitution; and, under a law of 1869, the names of
competent persons were placed in the same box, and drawn
therefrom indiscriminately, to serve either as grand or petit
jurors, the latter of whom were to try all civil cases, unless
the judge, in the exercise of his discretion, should call for
a special jury to be chosen from the grand jury. So that
it will be seen that the judge might send the parties litigant
before the twenty-four petit or the twentry-three grand-
jurors. But no provisision was made by which if the one
or the other should fail to furnish a complete legal panel,
he could call in the other and supplement it therefrom,
but he was remanded to the regular mode provided by
law for filling up his juries by talesmen.
But it is said that the constitution of 1877 authorizes
552 SUPREME COURT OF GEORGIA.
Hamlin et al, vt, Fletcher, ezecator.
and allows this mode to be adopted, and in effect, if not
in words, repeals the act of 1899. In art. 6, sec. 18,
par. 2, the constitution declares that '^ The general assembly
shall provide bj law for the selection of the most experi-
enced, intelligent and upright men to serve as grand jnrorsi
and i&teUige&t and upright men to serve as traverse jurors.
Nevertheless, the grand jurors shall be competent to serve
as traverse jurors." It will be observed that the distinction
between them is re-established, although the grand juror
may be called to do traverse jury service. In what way
may this be done ? evidently in that way which was, or
might be, provided by law. It was known to the framers of
the constitution, that persons in the grand jury box were
liable to eerve as traverse jurors in criminal cases, and in
such civil ones as the judge in his discretion should require
of them the performance of that duty, and the concluding
words of the clause quoted were evidently put there to
<iover the two instances mentioned, as well as to prevent
their competency being questioned.
We are wholly unable to see how the judge had upon
this trial any new power vested in him, either by the con-
stitution or the law made to carry it into effect. When he
sounded this case upon his docket, what power had he as to
the juries ? Simply to direct that the jury be chosen in
one or the other of the modes provided by law, and when
he had done this, he had exhausted his judicial discretion —
^as held to his election, without power to return, after be
had secured fifteen qualified jurors, and adopt the other
mode which he had rejected. Having ordered the jury to
be chosen from the grand jury, when he found that he had
only fifteen, he should have selected them just as he would
have done if, upon the organization of the body, only that
number of the original panel had appeared. The only argu-
ment against our view of this question was, that the law of
1869 was repealed by the constitution of 1877. If this be
true, then the answer to it is found in the fact, that if re-
pealed the judge was wholly unauthorized by any law to
FEBRUARY TERM, 1880. 553
Hamlin «/a/ w Fletcher, execotor.
have the issue tried by a special jiry takt^a from the ^rand
jury.
2. The second objection which we have named is as con-
clasivelj error npon the part of the judge as is the first,
and if exercised would lead to infinitely worse consequences.
The right of trial by jury is to remain inviolate, and this
right extends not only to the mode and manner of declaring^
who shall compose the juries, but also as to the mode and
manner in which they shall be selected to try each particu-
lar case. It would be a most dangerous power with which
to clothe a judge, to say that he, upon the failure of a panel,
might indicate even in the remotest manner who should be
called to complete it.
In this case the judge finding himself in want of eight
jurors, directed the clerk to call the first names upon the
list of traverse jurors. In a legal sense who were they at
that time and in that connection 'if They were nothing but
talesmen selected by the judge to try this case, and not
taken either from the same class of persons, whom he in
his discretion had determined should sit in this case — they
lacked one of the essential elements necessary to qualify
them equally with their new fellow-jurors. If he could
liave had the first twelve called, he could liave had the last
called, or any part thereof, and put them upon the parties.
It is no reply to say that the exercise of an unlawful power
«ave8 time or lessens expense ; time, expense and conven-
ience must yield to law.
3. Complaints were made to the charge of the judge
upon the manner in which he presented the law govern-
ing the attestation of the paper offered as the will of the
deceased, and as there is to be a new trial, and the same
questions passed upon, we rule upon the subject as it ap-
pearb in this record. There is no unvarying and universal
rule which can be laid down; each case must be determined
by its own circumstances. That the will shall be signed in
the presence of the testator, was to prevent a f raud^s being
perpetrated upon him by substituting another for the true
will. Therefore the attestation must be made at a time and
554 SUPREME COURT OF GEORGIA.
ijmith vs. Danielly. «
place where the testator can see that he is not imposed npon,
and have cognizance of the persons and the act. The g^^
eral rnle is — "if the sitnation and circninstances of the
testator and witnesses are such as that the testator, in ^^^
actual position, might have seen the act of attestation, it is
a good attestation;" 6th 6'a., 539, and authorities there
cited.
The attestation must be in the presence of thi.« testa-
tor— that is where he may see it — therie must be no obstruc-
tion to prevent his seeing it, his position mnst be ^ncn as
to enable him without change of sitiiatian — uotpos^^^'^^
to see the witnesses subscribing the will by looking i^ ^^^
direction, and bringing within the scope of his visi^^^
/actum of the attestation.
Judgment reversed.
Smith vs. Danielly.
Where suit was brought on a note payable to plaintiff for th^
certain children against their father, an equitable plea sett ^ *^^ |^
that defendant was their natural guardian, that plaintiff is in»^^ ^ '
and if permitted to collect the money will appropriate it to 1» ^^ . - i
use, and praying that upon defendant's giving bond for the f^^-* .
management of the fund the note be decreed satisfied, should ^^
stricken on demurrer.
Promissory notes. Equity. Pleading. Before T'^^ ^
Simmons. Crawford Superior Court. March Term, "^
Reported in the decision.
R. D. Smith ; Baoon & Ruthebfobd, for plaint!
error.
M. D. Stkoud y Miller & Collier, for defendant*
*
Warner, Chief Justice.
This was a suit by the plaintiflF against the defo** .^g^
founded on an attachment, in which the plaintiff dei?''^
m
FEBRUARY TERM, 1880. 556
Smith vn. Daulelly.
apoD three separate promissory notes — one of which, on
the face thereof, was payable to the plaintiff for the benefit
of two Pasmore children, and three Smith children, to be
eqnally divided between them. The other two notes were
payable to the plaintiff or bearer, and not for the benefit of
any one else. On the trial of the case the jury found a
verdict in favor of the plaintiff for the sum of $640.00,
besides interest. A motion was made for a new trial, which
was overruled, and the defendant excepted.
One of the errors complained of in the motion was the
striking the defendant's equitable plea on motion of plain-
tiff's counsel. The defendant alleged in his equitable plea,
that the three Smith children mentioned in said note are his
own minor children ; that at the time said arrangement was
made he was living in this state, but has since removed to
the state of Mississippi, and has with him said three Smith
children, and has all the burden to bear of maintaining and
educating them, and that their interest will be better cared
for and protected by him as their natural guardian than any
one else, and that since the giving of said note and creating
said trust for the benefit of his said children, the plaintiff
has become insolvent, and if he is permitted to collect the
money due defendant's children, that he wi!I waste the
same, and appropriate it to his own use, and thereby
deprive his children of their interest in said note, and that
he has never given any security as guardian or trustee
of said children ; therefore he prayed that the verdict in
said case be so moulded that the plaintiff recover against
him the amount due the Pasmore children, and that the
balance due on said note be decreed satisfied, upon defend-
ant, as natural guardian, giving bond with good pecnrity,
conditioned for the faithful management and control ©f
that part of the money due to the defendant's children
upon their coming of age, or to pay over said amount to
any other lawfully appointed guardian or trustee, and that
upon his complying with these conditions the money com-
ing to his children be allowed to remain in the defendant's
V 64-3i
\
656 SUPREME COURT OF GEORGIA.
Ths MortbwesUm Untn»] Life Inaonoce Co. m. WUcoiod. •dmlnUmtar.
haDdB, etc. In view of the allegations contained in the de-
fendant's e<)nitable plea, especially in regard to the pla'"'
tiff's inBolveney, it was error in the court to strike it.
Let the judgment of the court below be reversed.
The N0RTHWK8TBRN Mutual Life Inbttranoe Comf- -*"'*' "''
WiLcoxoN, adiiiinistrator.
The coDstitullon or 1877, wliicli provides that Id a county wl» ^re *
Is a city court, the Judge thereof nnd of the superior cour' -rber
preside 1q the courtsof eacholher iD caseswhere ilieJudgB <*' ^ .^
1b diBqualiOed to preside," does not Rive the rigbt to the jl*'^*^ j^,
city court to eiercise chancery powers and to grant or re f*'^ j^_
Junctions in vacation, uo order being taken in term time foV , _^
termJDAtioa of the case io vacation. Rulings so made by ^'
mere nullities.
Jarisdiction. Court*. Injanction. Before Jud^^ aQ
TKR. Fulton County. AtChambers. January 26tli * '
Wilcoxon, administrator, filed his bill to marshal *" ,^* 0I
sets of the estate, and for injunction againt^t the she""' ^
Fulton county, and the Northwestern Mutual Life Insti ''^
Company and others. The immediate |iiiii*usL* was *"*'
join the eheriff from selling certain real i?stiite "^^ -■ -i
mortgage ,;f._/a. in favur of the Northwisirrn Mutual "^
Insn ranee Company againstcomplainaniV intestato. -T'** -.i
Hillyer, of the Atlanti circuit, being di.-ijiirt!itied, tlic?
was presented to Judge GHce, of the Marnn circuit, "**
sanctioned it, and granted a temporary vL'slraining *^'"*V
until the application for injunction coul^l be heard. "*■
defendant, the insurance company, ansAcered the bill. **
case was heard before Jndgo Richard H Chirk, of tin- c'/
court of Atlanta, and the injunction denied,
TJie hearing was had dnring the term of Kiilton siipurif'
court, but no decision rendered until vacation, when,
request of both parties, it was delivered.
J.
FEBRUARY TERM, 1880. 557
1 he Northwestern Matual Life In^}arance Co. vs. Wilcoxon, administrator.
The sheriff proceeded to eell. Wilcoxon, administrator,
then applied to Judge George N. Lester, of the Bine Ridge
circuit (Judge Hilljer being disqualified), for an injunction
against said sheriff and the Northwestern Mutual Life In-
surance Company, setting up in his said bill that the tem-
porary restraining order granted by Judge Grice had never
been dissolved, or the case determined by any qualified judge
of said state having jurisdiction. Judge Lester sanctioned
the bill, and granted a temporary restraining order until
the application for injunction could be heard. The de-
fendant answered the bill, setting up Judge Clark's re-
fusal to grant the injunction. Upon the hearing Judge
Lester granted the injunction prayed for, holding that
Judge Clark had no jurisdiction to render his judgment
in said case in vacation. The insurance company excepted.
B. H. Hill & Son, for plaintiff in error.
John A, Wimpy; Hopkins & Glenn, for defendant.
Jackson, Justice.
The sole question is whether the judge of the city court
of Atlanta had the power, under the constitution of 1877,
to grant an injunction when the judge of the superior court
was digqualified, and when the superior court was not in
session, and when the judge of the city court consequently
was not presiding therein, and when no order had been
taken in term, when the city judge did preside, to hear and
determine the case in vacation ?
The question must be settled by the words of the fifth
flection of the sixth article of the constitution of 1877,
which are as follows: **In any county within which there
is, or hereafter may be, a city court, the judge^of said court,
and of the superior court, may preside in the courts of each
other, in cases where the judge of either is disqualified to
preside." Supplement to Code, §627. No act of the legis-
558 SUPREME COURT OF GEORGIA.
Harrison & Co. ti. The Hall Safe and Lock Co.
lature has been passed to carry this clause into effect, and
it must be construed by its own words. Those words only
grant the power to the judge of the city court to preside
when the judge of the superior court is disqualified, and
they cannot be fairly construed to give the city judge all
the chancery powers of the superior court judge, at cham-
bers, without extending their import and plain meaning
beyond what they will bear. He may preside in the supe-
rior court when the judge of that is disqualified ; he may
sit and hear any such case, ripe for hearing, in term ; he
may, while presiding in such case, pass any order which the
judfije of the superior court could pass in term ; he becomes
the impersonation of the superior court for that case dur-
ing the term, and may exercise the powers of that court
then and there while sitting on that bench ; but when that
court adjourns, or he is not presiding therein, he becomes
merely a city court judge, and the chancery powers of a
superior court judge have passed from him. The judge of
the superior court was nght, therefore, to disregard the
ruling made by him at chambers, and the judgment is af-
firmed.
Judgment affirmed.
Harrison & Company vs. TAe Hall Safe and Lock
Company.
1. Where neither the judge who presided at the trial, nor the one who
passed on the motion for a ne\7 trial, revised and approved the
brief of evidence, and no legal reason is given for such failure, ibift
court cannot hear the case except as to such assignments of error a
do not depend upon the evidence for their decision.
2. The judges of the superior courts of this state may alternate and
preside for each other, although neither one be disqualified to9itia
the cases tried. When the superior court of Fulton county was
regularly convened by Judge Hillyer, of the Atlanta circuit, who
thereupon announced that Judge Tompkins, of the eastern circoit,
would preside for him, and retired, Judge Tompkins was clotM
FEBRUARY TERM, 1880. 559
Harrison & Co. vs. The Hall Sale and Lock Co.
with full judicial authority to hold that court, whatever might be
held as to the judicial tribunal set up by Judge Hillyer in another
room in the same building.
Practice in the Supreme Court. New trial. Judge.
Practice in the Superior Court. Before Judge Hilltrb.
Fulton Superior Court. October Term, 1878.
Heported in the opinion.
Z. D. Harrison, for plaintiff in error.
D. F. & W. R. Hammond, for defendant.
Crawford, Justice.
1. A motion was made by defendant's counsel to dismiss
the writ of error in this case, because there was no approval
of the brief of evidence by the judge.
Upon looking into the record we find that it was agreed
to by the counsel, but it nowhere appeara that the presid-
ing judge who tried the case revised or approved it. " In
every application for a new trial, a brief of the testimony
in the cause shall be filed by the party applying for such
new trial, under the revision and' approval of the court."
No. 49, Bules Superior Court. Code, §4253.
We are referred by counsel for plaintiff in error, to an
agreement entered into by the counsel, and approved by the
court, and which is in the following words : " It is agreed
that the original papers recited in the foregoing motion,
and mentioned in'brief of evidence attached to said motion,
may be used for all the purposes of this motion, and that
copies thereof need not be included in said brief of evidence
unless the case should be carried to the supreme court, in
which event copies thereof shall be attached to said brief
by the clerk.
'* It is further agreed that the facts stated in said motion
are true, subject to be modified or amended by such proof
in reference thereto as may be offered on the trial of said
motion."
560 SUPREME COURT OF GEORGIA.
Harriaon A Co. tw. The Hull Safe and Lock Co.
Thereupon are entered by the judge, these words : " The
foregoing agreement approved, and the facts stated in said
motion for a new trial are certified to be true, subject to the
condition stated in said agreement." It will be seen that
the agreement of counsel referred to three distinct matters :
1st, that tiie original papers recited in the motion and men-
tioned in the brief of evidence attached, may be used for
the purpose of the motion ; 2d, that copies need not bo in-
cluded unless the case should be carried to the supreme
court ; and 3d, that the facts stated in the motion were true.
The entry of Judge Hillyer simply is — that the agree-
ment is approved, and the facts stated in the motion are
true, but nowhere does he say that he approves the brief
of evidence.
BePidee, it is shown in the record that Judge Hillyer did
not preside on the trial, but that it was Judge Tompkins
who presided, and there is no approval by him, and no rea-
son shown why it was not done.
Where neither the judge who presided at the trial, nor
the one who passed on the motion for a new trial, revised
and approved the brief of evidence, and no legal reason is
given for such failure, this court cannot hear the case ex-
cept as to such assignments of error as do not depend upon
the evidence for their decision. This court in the case of
PorUr V8. The State, 56 Oa., 530, says that " the brief of
evidence used on the motion for a new trial must have been
approved by the presiding judge, notwithstanding the fact
that it has been agreed upon by counsel, and this approval
must affirmatively appear either in the bill of exceptions or
in the record." See also 60 ffa., 322 ; 55 lb., 684:, and the
authorities there cited.
2. There is but one ground, therefore, for our adjudica-
tion in this record, and that is whether Hon. H. B. Tomp-
kins, who presided as judge on the trial of the case, was
without legal authority to do so, unless the judge of the
circuit was himself disqualified, and, also, because he at the
same time was trying another case in another room of the
b-bouse of said county.
FEBRUARY TERM, 1880. 561
Harrison A Co. vs. The Hall Safe and Lock Co.
It appears that on the 25th day of November 1878, the
superior court for Fulton county was in regular session,
and was duly opened on that day, with Hon. George Hill-
yer presiding, whereupon, after announcing that the Hon.
H. B. Tompkins, judge of the eastern circuit, would pre-
side for him during that day, and in his place and stead,
be retired from the bench, and Judge Tompkins assumed its
duties, and proceeded to the trial of this cause.
We are very clear that under the facts stated the supe-
rior court of Fulton county was in le;]ral session under Judge
Tompkins, whatever might be held as to the judicial Xribo-
nal set up by Judge Hillyer in some other part of the build-
ing. " The jurisdiction of the judges of the superior courts
is co-extensive with the limits of this state, but they are not
compelled to alternate, unless required by law." Code,
§242. That the judges of this state may alternate and pre-
side for each other, although neither one be disqualified to
sit in the cases tried, we have no doubt.
To alternate where one only was disqualified to try cases
in his court, has been uniformly done — and we hardly think
that it will be claimed that the presiding judge of the other
court would be without legal authority to hold it.
It is true that there are certain writs, such as certiorariy
mandamuSy habeas corpus^ injhnction and quia timet^ as
also certain specified powers which each judge must grant
or exercise in his own circuit, and no non-resident judge is
permitted to do so, except in the absence, sickness, or dis-
qualification of the judge of the circuit.
In such a case, therefore, as is presented by this record,
we are compelled to hold that the trial was legal, in so far
as the authority of the judge was concerned, and that its
judgment must be affirmed.
S63 SUPREME COURT OF GEORGIA.
Oaskill vi. The State.
Gaskill vs. The Stats of Gsohoia.
An ftct provided that " no suit begun under this act shall be in anj
manner settled, or compromised, or dismissed, without the consent
and written order of the judge entered on the minutes." In a suit
under this act, an order was taken in open court, both parties being
either present or represented by counsel, sanctioning a compromise
agreed upon. This order was signed by counsel for the state, and
was entered on the minutes, which were approved and signed by the
judge on the same day:
HMf that if not conclusive, the minutes furnish at least the strongest
presumptive evidence of the consent and written order of the court
sanctioning the compromise.
Courts. Evidence. Jadgments. Presnmptions. Prac-
tice in the Superior Court. Before Judge Hillyar. Ful-
ton Superior Court, September Term, 1879.
A^.ya. in favor of the state vs. Gaskill was levied on
certain property, which was claimed by Gaskill et al. On
the trial claimants moved to dismiss the levy because
of defects in the fi. fa. ; the motion was sustained and
the levy dismissed. Counsel for the state then moved to
amend the fi. fa. so as to make it conform to the judgment.
Defendant's counsel resisted this motion on the ground that
there was no legal judgment to amend by. It appeared
tliat the suit was originally brought by the state, on the
information of C. P. McCalla. against Gaskill, to recover
115,000.00 under the act of December 15th, 1871, in relation
to the recovery of money, etc., stolen or unlawfully or
fraudulently converted or detained from the state. This
act provided that no suit brought under it should be set-
tled, or compromised, or dismissed, '^ without the consent
and written order of the judge entered on the min-
utes." A compromise was agreed upon between the par-
ties, and both being present or represented, an order was
taken in open court in accordance with the terms agreed
upon. This order, after st^^ting the nature of the com-
promise, closed thus: "By the court. (Signed) John T.
FEBRUART TERM, 1880. 563
Oa»km ««. The dtAtc.
Glenn, Solicitor GeneraL" It was entered upon the minutes,
which were approved and signed by the court. The ques-
tion was whether the compromise was les^al under the act
of 1871, BO as to form the basis of an execution. The
court held that it was, and defendant excepted.
Jno. a. Wimpy; McCay & Abbott, for plaintiff in
error.
R. N. Ely, attorney- general ; Collier & Collibr ; My-
NATT & Howell, for the state.
Wabneb, Chief Justice.
The only question presented by the record and the bill
of exceptions in this case is whether the compromise and
settlement of the case, as it appears in the record, was
made with the consent and written order of the judge, as
required by the 11th section of the act of 1871, which
declares that '^ No suit begun under this act shall be in
any manner settled, or compromised, or dismissed, without
the consent and written order of the judge entered on the
minutes.'^ It appears from the record that an -order was
taken in open court, both parties being cither present or rep-
resented by counsel, sanctioning the compromise, which
order was entered on the minutes of the court; and it
further appears that said minutes of the court were ex-
amined and approved by the presiding judge the same day
the order of compromise w^as entered thereon. The min-
utes of the court, if not conclusive evidence of the consent
and written order of the court sanctioning the compromise,
furnish the strongest sort of presumptive evidence of that
fact, if the public records of the courts are presumed to
speak the truth. In our judgment the record furnishes
sufficient evidence that the compromise of the suit received
the consent and approval of the judge and the court, in
accordance with the provisions of the act of 1871.
Let the judgment of the court below be affirmed.
564 SUPKEME COUKT OF GEORGIA
Rosser vs. Cluiiey et <U.
B08SBB V8. Cheney et aL
1, Where ^n action of ejectfnent has been brought and a bill is filed by
defendant therein to enjoin the ejectment case, the court cannot,
over tbe objection of either party, order the common law and
equity case to be tried together.
2. Although the court erred in ordering the two cases to be tried to.
gether, yet under the previous rulings of this court, the verdict
could not be other than it was, and the judgment is affirmed.
Practice in the Superior Court. Verdict. Before Jadj^e
Spkkk." Rockdale Superior Court. August Term, 1879.
To the report contained in the decision it is only neces-
sary to add that the court ordered the ejectment case of
Cheney et al. vs. Rosser and the equity case of Rosser vs.
Cheney et al.^ brought to enjoin the ejectment case, to be
tried togetlier, over the objection of defendant in eject-
ment, and this is one of the errors complained of.
J. J. Floyd; J. C. Barton, for plaintiff in error.
Clark & Pack, for defendants.
Jackson, Justice.
This case was before this court as reported in 54 Oa.j 168,
when it was held that the purchaser, ICosser, was affected with
notice of the recitals in the deed from Cheney and wife to
Russell, under whom Rosser held : and that those recitals
showed that the property bought was homestead for the
family, and the conveyance by husband and wife without
the assent of the ordinary passed no title. That decision
in the 54th fixed the law of the case in ejectment on the
facts thereof. Subsequently the defendant in ejectment
brought a bill in equity enjoining the suit in ejectment,
and that bill was tried and the case again brought to this
court and is reported in 59 Ga.y 861, where the former rol-
.ing, as reported in the 54th supra^ is virtually held to con-
clude the parties, and the judgment for complainant in
FEBRUARY TERM, 1880. 5G.>
Greene vs. Oliphant & Hannah.
cqaity was reversed on that ground, and it is there held
that this land is the homestead of this family, at least so
long as the original homestead in Jasper county is not re-
claimed by, or restored to, the family. It was again tried,
the jury found the same verdict, and the court below
granted a new trial on the ground that the verdict was
against the law of the case applicable to the facts thereof,
and in 61 Ga,, 468^ that grant of a new trial for that reason
was affirmed. The equity and common law cases were again
tried together against the objection of Rosser^s counsel^
when the verdict was at last rendered for the homestead in
Cheney's family, and Rosser excepted, and the case is again
before us.
We know of no law which empowers the superior court
to try an equity and common law case at the same time
and before the same jury against the protest and without
the consent of either party ; and the practice being with-
out law is, in our judgment, wrong, and ordinarily would
constrain us to grant a new trial; but the law of this case
on its facts has been so often adjudicated by this court, and
as the verdict must be repeated if tried again, law and facts
as three times rnled demanding it, it would be produc-
tive of no practical benefit, but a mere consumption of time
and expense to the county to try it over, therefore in this
case we shall not send it back, though the two cases at
equity and law were tried together wrongfully, but we
shall settle the litigation by affirming the judgment.
Judgment affirmed.
Greene vs. Olifhant & Hannah.
J« Where th^rc was service, jurisdiction in the court of the amount
and person, as well as judgment against the defendant, although
such judgment may not h^ve been founded on sufficient evidence,
or rendered by default. It is conclusive as against un affidavit of il-
legality based on causes anterior thereto.
% The re-opening of the court by the magistrate and allowing the
plaintiffs to prove the account, and thereafter entering a second
judgment upon the papers, was without legal effect.
566 SUPREME COURT OF GEORGIA.
— ■- — • —
Oreen« vt. OliphanC & Hannah.
Illegality. Judgments. Jastice Courte. Before Judge
Simmons. Upson Superior Court. November Terra, 1879.
Report unnecessary.
J. Y. Allen, by brief, for plaintiff in error.
J. A. Gotten, by brief, for defendant.
Crawford, Justice.
Kfi.fa, in favor of defendants in error was levied upon
certain cotton as the property of C. H. Greene, who filed
his affidavit alleging that the same was proceeding illegally,
because there was no judgment rendered by said court upon
which to base said execution, and because the suit against
him being on open account, and he served by leaving a copy
summons at his house, no judgment by default could be
rendered against him ; and further, because after the entry
of the judgment by default, and the court had adjourned,
one of the plaintiffs appeared, proved the account, and a
judgment was entered on the papers.
1. Whenev^er an execution issues which does not follow
the judgment upon which it is based, or following it, is
proceeding after it has been satisfied, or after it has lost it6
legal effect, for any cause arising subsequent to the judg-
ment, then it may be arrested by affidavit of illegality.
The office of such affidavit is only to stay the progress of
the execution until the defendant can be heard in tho court
from whence it issued, and then only upon some matter
not reaching behind the judgment. The only exception to
this general rule is where there was no service upon the de-
fendant, or he has not had his day in court.
Applying, then, the law to this case, the defendant shows
by his own oath that he was served ; that he did not appear
or plead ; that he suffered judgment to go against him both
by default and by proof ; that he entered no appeal ; ap-
plied for no certiorari / makes no defense against the jns-
FEBRUARY TERM, 1880. 567
Malligan vs. Perry, adminifttrator.
tice of the claim ; and after the lapse of eight months files
illegality to the fi. fa.^ setting up nothing subsequent to
the date of the judgment as a ground for its arrest.
The record shows service, jurisdiction of amount and
person, as well as judgment against the defendant, and al-
though it may not have been founded upon sufficient evi-
dence, or even by default, it is conclusive as against an affi-
davit of ille^lity for causes anterior thereto. Hood vs,
Parker^ September Term 1879, not yet reported ; 7 Ga,j
204; 8 lb., 143; 11 lb., 137-220; Code, §3671.
2. The re opening of the court by the magistrate, and
allowing the plaintiffs to prove the account, and thereafter
entering judgment upon the papers was without legal
effect. It is the duty of magistrates to keep a docket of all
cases brought before them, in which must be entered the
names of the parties, the returns of the officer, and the en-
try of the judgment, specifying its amount and the day of
its rendition. The entry of the judgment in this case on the
papers after it was regularly entered upon the docket and
disposed of by the court, was a nullity, and cannot therefore
affect that judgment entered as directed by law. Code,
§457.
Judgment affirmed.
Mulligan vs. Perby, administrator.
1. The question of the sale of certain property being submitted to ar-
bitration, a part of it being in the possession of the vendee, an
award that the vendor ** retain all the property, both real and per-
sonal, sold by biro," includes a re-delivery of that already delivered
to the vendee. In a suit under the award for the amount awarded
to the vendee, property retained by him is a proper deduction, the
burden of proof being on defendant.
2. The award itself is the best evidence of its meaning. The testi-
mony of one of the arbitrators as to what was intended, and his con-
struction thereof, was not admissible.
668 SUPREME COURT OF GEORGIA.
Mulligan vs. Perry, administraUv.
S. A.n award which provides that the vendor retain the property sold
anil pay to the vendee 1 1,800.00, does not make re-delivery of property
in ihe hands of the vendee a condition precedent to recovering the
amount awarded to him. The value of property retained by the
vendee would be a proper deduction from such amount in a suit
iherefor.
Arbitrament and award. Evidence. Set-oflE. Before
Jndge Crisp. Early Superior Conrt. October Adjourned
Term, 1879.
Reported in the decision.
Arthur Hood, Jh. ; Bacon & Rutherford, for plaintiff
in error.
E. C. BowKR, for defendant.
Warner, Chief Justice.
/
The plaintiff sued the defendant's intestate to recover the
sum of $1,800.00, which he claimed to be due him on an
award. On the trial of the case the jury, under the charge
of the court, found a verdict in favor of the defendant.
A motion was made for a new trial on various grounds,
which was overruled, and the plaintiff excepted. It appears
from the evidence in the record that Mulligan and B. W,
Keaton, by his agent, B. O. Keaton, submitted certain mat-
ters in dispute between them to the award of arbitrators,
a copy of which submission and award is as follows :
** State of Georgia— County of Early.
" Whereas, there is a certain matter of controversy between John B.
Mulligan of the one part, and Benjamin W. Keaton of the other part,
whicli is proposed to be submitted to arbitration in said county.
"Now, the said .John B. Mulligan andBenj. W.'Eeaton, hy his attor-
ney in fact, Benj. O. Keaton, do hereby agree, promise and bind them-
selves, heiis and assigns, to abide and perform the award of the fol-
lowing named arbitrators and umpire, in the penal sum of twenty
thousand dollars, to be collected out of either of said parties who may
FEBRUARY TERM, 1880. 569
Malligao vs. Perry, admiQUtrator.
refuse to abide by and perform their respective liabilities made in
award of said arbitrators and umpire, should there be one.
"The arbitrators selected and agreed upon by the parties are G. W.
Holmes and A. RRansome, of said county, who are authorized, should
they fail to agree, to cull in an umpire. The points submitted are, 1st,
the said John B. Mulligan claims to have bought in good faith two
thousand acres of land, more or less, with the stock of every descrip-
tion, and provisions of every description on said plantation in Early
county, excepting a portion of household furniture, a carriage and
two mules, for the sum of $!2,000 in sjiecie, which the said Eeaton
denies, but claims such sale was made by a representative to said
Mulligan, that his father advised such a suic. Subsequent to the sale,
as claimed to have been made, both of the said parties agreed, after a
misunderstanding between them, to submit nil the matters in con-
troversy between them to arbitration
"Now, the said parties do agree and bind tliemselves as aforesaid, to
submit all the matters in controversy between them, both the said pur-
chase and sale, and services of said Mulligan as said Keaton's agent
prior to such trade.
"In witness whereof, both of the said parties have hereunto set their
hands and seals this 19th day of February, 1866
"Signed, sealed and delivered in presence of G. W. Holmes and A. R.
Ransome.
John B. Mulligan,
Bbnj. O. Keaton."
retukx of kkfkkeeb.
"John B. Mulligan
"Bbnj. W. Keaton
"In the matter of controversy referred to us by the said parties, we
have, after hearing evidence and a due consideration of the sam«, con-
cludeii and agreed that it is fair and equitable for B. W. Keaton to re-
tain all the property, both real and personal, sold by him to John B.
Mulligan, and that the said Eeaton pay to said Mulligan the sum of
eighteen hundred dollars in currency.
"This we have mutually agreed upon as our award between the said
parlies.
"Witness our hands and seals this February 20th, 1866.
"Si.^ncd wit bin the presence of
A. R. Ransomb,
G. W. Holmes."
The defendant pleaded that he had offered to pay the
plaintiff the $1,800.00, provided the plaintiff would comply
with the award on his part, and return the property, or
570 SUPREME COURT OF GEORGIA.
Mulligan V8. Perry, administrator.
account therefor, which the plaintiff refused to do, and
attached to his plea a bill of partieulars, specifjing the
property and the value thereof.
1. The fair and legal interpretation of the award, in
view of the submission, is that the plaintiff tjihonld sarren*
der the possession of the property purchased by him, so as
enable the defendant to retain all of the property which the
plaintiff claimed had been sold to him, and that the defend-
ant should pay to the plaintiff $1,800.00. If the plaintiff has
not surrendered the possession of the property to the de-
fendant, as specified in his plea, nor properly aeconnted
for it (the same being a part of the property soW) then,
upon proof thereof by the defendant, and the value? of the
property not so surrendered nor accounted for, it wiiay be
deducted from the plaintiff's claim of $1,800.00 ; but the
burden of proof is on the defendant to prove the allegations
in his plea. Until the contrary appears, the presumption
is that every man performs all his legal and social duties,
and, therefore, the plaintiff will be presumed to ha^e per
formed his legal duty under the award until the contrary
is shown.
2. One of the errors complained of in themoti^w^*^
the admission of the testimony of Holmes, one of the
arbitrators, over plaintiff's objection, explaining what >va8the
meaning of the award. The award itself was the hig'^*^^
and best evidence of its meaning, and the constriiction
thereof was a question for the court, and it was er^<>^ ^^
admit the evidence of Holmes, one of the arbitrators, ^ ^^
his construction of it.
3. The court charged the jury to the effect that l^^f^^^
the plaintiff could recover the $1,800.00, the amount o^ ^"^
award, it must appear that he had complied with the ^^^'
dition of the award, and that if any of the proper^? ^
B. W. Keaton went into plaintiff's possession, it must ap^®*"^'
hefore the plaintiff can recovier^ that he had delivered 9^ " ^
said property to the defendant, or accounted for the v^^^
thereof. This charge of the court was error in view o^ ^^
FEBRUARY TERM, 1880. 571
Ellis v». The United State:) Fertilizing and Chemical Co.
terms of the award. The award gave to the plaintiff $1,800.00
unconditioiiallj ; that became his legal right under it. The
defendant's legal right under the award was to have and
retain the property which had been sold to the plaintiff, or
the value thereof. If the plaintiff has not accorded to the
defendant his legal right under the award, by turning over
the property to him, or accounting for its value as alleged
in the defendant's plea, then the defendant would be en-
titled to have the proven value of such property deducted
from the plaintiff's demand of $1,800.00, in a suit between
themselves, the burden of proof being on the defendant
to sustain the allegations in his plea, and that was the legal
effect of the ruling of this court in this same case in 58 Ga.j
483, where we said ^* that if Mulligan had not made a clean
delivery of the property, or payment of money, that the
jury ought to deduct the deficiency from his $1,800.00, and
in case the deficiency amounted to $1,800.00, then they
ought to find for defendant." In our judgment the court
erred in overruling the defendant's motion for a new trial.
Let the judgment of the court below be reversed.
Ellis vs. The United States Fertilizing and Chemical
Company.
1. That a verdict for the plaintiff is too small is not good ground of
exception by defendant.
2. Where a father and son lived together, the latter cultivating a part
of the former's land and attending to the entire farm, and the son
went with his father's wagons and teams to purchase guano, it was
admissible to show that in making the purchase he stated that the
guano was for the use of both of them. This formed a part of the
contract. The effect which it would have on the father would de-
pend on proof of the agency of the son,
8. Where one of two parties must suffer by reason of the fraudulent
conduct of a third, he who places it in the power of the latter to
perpetrate such fraud must lose rather than the other.
4. Where a son obtained guano on a credit by fraudulent representa-
tions that he was purchasing for himself and father jointly, and on
Y 64—416
572 SUPREME COURT OF GEORGIA.
El\\av8. The United (States Fertilizing and Chemical Co.
discovery of the fraud, the agent of the vendor demanded a return
of the guano, and was referred to the father, who agreed to take it
and use it if a specified reduction should be made in the price, which
was assented to, he thereby became liable as an original contractor.
5. The verdict is supported by the evidence.
Practice in the Supreme Court. Verdict. Evidence.
Fraud. Contract, Before Judge Buchanan. Spalding
Superior Court. August Term, 1879.
Reported in the decision.
S. C. MoDanibl, for plaintiff in error.
D. N. Martin ; Stbwabt & Hall, for defendant.
Jackson, Justice.
This company, through its agent, Cole, sued W. A. Ellis
and the plaintiff in error, J.'T. Ellis, for the sum of two
hundred and eighty-five dollars, as alleged in the complaint,
but the bill of particulars shows two hundred and seventy-five
dollars. The jury found two hundred and fifty dollars, with
interest from the sale. A motion was made for a new trial
by J. T. Ellis on various grounds ; the court overruled the
motion on each of them, and on that judgment error is
assigned here by him.
1. The first ground of the motion is that the verdict is
too small. That cannot hurt the plaintiff in error, if true,
and we do not deem it necessary to make the calculation
over again for the jury. If the party complaining of its
being too little be aggrieved by it, let him pay what he
thinks is the precise overplus that the jury did not find, and
doubtless the plaintiff in the court below will accept it.
2. The second ground is that the court admitted the evi-
dence of Cole, the plaintiff's agent, as to what the defend-
ant, W. A. Ellis, said when he made the contract for the
fertilizer, contending that it was not admissible against J.
T. Ellis. The facts, as set up and sworn to on the part of
the company, are that the two EUises are father and eon, the
FEBRUARY TERM, 1880. 573
Ellis tv. The United isUtes Fertilizing and Chemical Co.
son living with his father; that he attended to the farm for
his father, having the privilege to cultivate some of the land
for himself; that he got the fertilizer from Cole when he
had the father's wagons and teams, and Cole let him have
it, charging it to loth, and when he did so let him have it,
W. A. Ellis said that it was for both, and such was there-
fore the contract made between the agent of the company
and W. A. Ellis. To the latter part of this evidence, to-wit,
what W. A. Ellis said as to the parties for whom he bought
it, the objection was made, and that evidence being admit-
ted, error is assigned upon it. The court did right to let
the evidence in. It was the contract between these two
men, and what each said made it ; and Cole had the right
to give his recollection and version of it as well as W. A.
Ellie, and the company was not restricted to W. A. Ellis
as the only witness, because he was a competent witness.
As to what effect it should have on J. T. Ellis, depended
upon all the facts aiid circumstances of the case tending to
show agency in the t^on for the father, one of which is the
fact that he lived with him, managed his planting for him,
and had his wagons and teams, and with them hauled the
fertilizer home.
3. Error is also assigned that the court charged to the
effect that where one man puts it in the power of another
to cheat a third, the man thus giving the opportunity to
the second must suffer rather than the third innocent ma^i.
This is the law. It is applicable to this case, if, from all the
circumstances, the jury should believe that the conduct of
J. T. Ellis, in allowing his son to control his teams and
wagons, and manage his planting interests that year, though
he did have the right to cultivate a part of the place for
himself, and subsequent circumstances in regard to J. T.
Ellis' ratification of the contract made by his son on
terms, if this conduct, in the judgment of the jury, enabled
the son to cheat the company, then the charge is not with-
out evidence, and is not hypothetical, but has basis on which
to rest. It makes no difference whether J. T. Ellis intended
674 SUPREME COURT OF GEORGIA.
£lli« vt. The United Statw Fertilizing and Ohemicol Co.
the fraudulent use of his conduct towards his son, by the
son or not, if by that conduct the innocent party was led to
part with goods he would not have sold but for the advan-
tage the son got over him by reason of the conduct of the
father. Code, §3174.
4. Another ground on which the motion is based, is that
the court charged to the effect that fraud would annul
the title in W. A. Ellis, and if Cole was taking steps to-
get back the fertilizer, and pending efforts that way, J. T.
Ellis promised to use it and pay for it if the price was put
$2.50 less per ton, then J. T. Ellis would be liable as an
original contractor. We think that this is law, and the
charge is based on evidence enough to support it Frand
certainly operated to make the sale void. Code, §§2633,
2751, therefore no title passed, and Cole, tor the company,
could have recovered the manure in an action of trover-
There is evidence that he did say to W. A. Ellis that he
wanted it back, that he was referred to his father, that after-
wards, at the drug store, the father agreed to take it and use
it, and therefore there is evidence to support the charge.
6. The other specific grounds of the motion were aban-
doned here, leaving the general allegations that the verdict
is contrary to the charge, to the law, and to the evidence.
The charge gave the law substantially to the jury, and the
law of the case was administered, if there be evidence to
sustain the verdict.
What is the evidence, looking to the company's side,
which the jury believed, and had a right to believe to be
the truth ? As made by the seller the case is this : W. T.
Ellis owned a farm ; three sons lived with him ; W. A.
Ellis, about 27 or 28 years old, cultivated for himself a part
of his father's land, and managed the rest the year the
fertilizer was used, his father being in bad health ; he coil-
tracted for the fertilizer, with his father's wagons and teams
in his possession, and used them to haul it to his father's
home ; the quanity bought by him far exceeded any amonnt
that he himself could have used on the few acres he cnlti-
FEBRUAKT TERM, 1880. 575
Bills TO. The United Btateb Fertilizing and Chemical Co.
vated for himself, and, being hauled home to his father's,
mast have been designed for the father's farm, and the
father must have known it was too much for the son's use ;
Cole's suspicions seem to have been aroused by W.A.Ellis'
dealings with other dealers in fertilizers in Griffin, and he
went to the farm to try and recover the fertilizer W. A.
Ellis had got ; at his, W. A.'s insfance, he drew a note for
J. T. Ellis, the father, to sign ; J. T. declined to sign when
it was presented to him by W. A. ; Cole saw him about it at
a drug store, when he agreed to take, use and pay for it at a
reduced price; this both refused to do, and suit was brought
for the manure at the reduced price; it was used on the
farm of J. T., the father, and for his cotton crop, and no
-complaint is made that it proved to bo bad, or was not fer-
tilizing, and did not add to the crop ; J. T.'s, the father's de-
fense, is that he bought it from W, A., his son ; gave a buggy
and horse for it ; another buggy got back into the father's
hands, and the horse into a younger brother's hands, who
was under twenty-one years of age ; and these facts being be-
lieved by the jury, the question is, do they furnish evidence
sufficient to sustain a verdict which made father and son }>oth
liable ? In our view the question is one of fraud or no fraud,
and the jury found that the facts authorized them to find such
fraud in all the circumstances considered together, as to con-
nect father and son in the joint purchase and use of the fer-
tilizer, and in a joint effort to fix up the transaction so as not
to pay for it, after it was used successfully in increasing the
•cotton crop of the father. Our Code, §2751; declares that
"fraud voids all contracts. Fraud may not be presumed,
but being in itself subtle, slight circumstances may be suffi-
cient to carry conviction of its existence." And questions
of fact, especially in respect to fraud, are for the jury.
In this case it may have existed, the circumstances point
to its existence, the plaintiff has not been paid for his goods,
they were used by, and they have benefitted, the very defen-
Hlant who brings the ease here ; he must have known that
his son had not paid for the guano when he says he bought
676 SUPREME COURT OF GEORGIA.
The Star Ola^s Co. v$. Loogley A Robinson.
it from him, and sabtle as the frand may be in this case, the
jury have ferreted it ont,the presiding judge has approved
their finding, and there being evidence enough to support
the verdict, though the testimony is quite conflicting, we
are prevented from interfering by our well-settled rule in
such cases, even if we did not ourselves approve the verdict.
It is in this case clearly authorized by all the circumstances
in proof.
Judgment affirmed.
The Stab Glass Company vs. Longlky & Robinson.
1. Where the return of the magistrate to a writ of certiorari accepts
the statement of counsel in the petition, and certifies the same as a
fair representation of what transpired as far as he claims to remem-
ber it, the return is defective, but the certtarari nhould not be dis-
missed. The remedy is by filing exceptions.
2. This case having been called at the first term, out of its order, ex-
ceptions then filed were not too late.
3. Where a mixed question of law and fact is involved, in a case
brought before the superior court by certiorari, and where it is
remanded for a new trial, instructions as to the law should be given
for the guidance of the magistrate.
4. If the plaintiff priced its goods to defendants, who ordered at that
price, and the plaintiff delivered them to a common carrier con-
signed to the defendants, that was such a delivery to them as to
make the sale complete at the price named.
(a). If the plaintiff afterwards notified defendants that there was a
mistake in the price, and not to use the goods except at a larger
price, this would not change in any way the rights of the parlies
although they may have been used, unless the defendants assumed
to pay the additional amount claimed.
Certiorari Practice in the Superior Court. Sales.
Delivery. Before Judge IIillyer. Fulton Superior Court.
October Term, 1879.
Reported in the opinion.
Z. D. Harrison ; S. N. Connally, for plaintiff in error.
D. F. & W. R. Uammond, for defendants.
FEBKUARY TERM, 1880. 577
The Star Glass Co. o«. Longloy A Bobineon.
Crawfokd, Justice.
The bill of exceptions in this case, sets out three grounds
of error as having been committed by the judge below
upon the hearing of the certiorari^ which he sustained and
remanded for a new trial before the justice.
1. That the certiorari should have been dismissed because
the evidence was not sufficiently verified by the magistrate
to authorize the superior court to pass on the case.
This oljjection was well taken, because the magistrate had
accepted the statement of the counsel in his petition for
certiorari as his return, and had certified the same up as
being a fair representation of what transpired before him
as far as he claimed to remember it. The court did not
dismiss, but called on the opposite counsel to respond to
the objection^ who proceeded to tile exceptions to this im-
perfect return, which was allowed by the court, and the
defendant in the certiorari excepted because it was too
late, the case being in order for trial, as claimed by defen-
dant.
2. The law is clear that such exceptions shall be filed in
writing, specifying the defects, and that notice shall be
given to the opposite party before the case is called in its
order for hearing. This, therefore, would have concluded
the right of the party to file the exceptions but for the fact
that the judge certifies " that the case was not reached and
sounded in its order for trial or hearing, on any regular call
of the certiorari docket," as well as the further fact that it
also appears that it was at the first or return term of tlie
certioi^ari. Where the answer of the magistrate does not
reply specifically to the allegations set out in the petition,
or fails to certify and send up the whole of the proceedings
had before him, a motion to dismiss is not the proper mo-
tion to submit, but exceptions should be filed, and if sus-
tained, the court wiU order the magistrate to perfect and
send up his answer. Code, §4062.
3. In this case the answer having been held to be defec-
\
578 SUPREME COURT OF GEORGIA.
Tho Star OIhbs Co. vt. Loo^ley A RobiDson.
tive, the same was amended, and when the certiorari was
again called, argument was had thereon, and it was sustained
bj the court and the cause remanded for a new trial, to all
of which the defendant excepted.
It is claimed that the testimony being before the superior
court, the judge should have decided the case.
Wherever the error set out in the certiorari is one of law
which must finally govern the case, and the court is satisfied
that no question of fact is involved, then it is the duty of
Che judge to make a final decision. Code, §4067.
Where there is a mixed question of law and fact, and of
winch complaint is made in the certiorari^ and the case is
remanded for a new trial, it should be done with instrac-
tions as to the law for the guidance of the magistrate in the
rehearing ordered.
4. In this case, if the testimony shows that the plaintiff,
upon inquiry, priced its goods to the defendants, and there-
upon the defendants ordered at that price, and that the
plaintifif then delivered them to a common carrier, con-
signed to the defendants, that was such a delivery to them
as to make the sale complete, and at the price named.
If it should further appear, that afterwards plaintiff noti-
fiTed defendants that there was a mistake in the price, and
not to use the goods except at a later and larger invoice
price, this would not change in any way the rights of the
parties, although they may have been used, unless the de-
fendants assumed to pay the additional amount claimed.
The acceptance of a draft for tho disputed sum, and the
payment thereof, would be evidence quite sufficient, nothing
else appearing, to defeat a set-off of this excess when filed
to another suit between the same parties, but such testimony
would not be absolutely conclusive against them, and other
satisfactory proof might be offered to overcome it.
Thete matters of fdct made it proper in the judge below
to order a new trial, and his judgment is affirmed.
FEBRUARY TERM, 1880. 579
U«ry w. Uery el cU.
UsRY V8. TTsBT et al.
Where, on a bill to cancel a deed and recover land conveyed by it, the
jury found for tbe complainant four hundred acres of the land "by
bis refunding to the defendant $087.50/' such refunding was a con-
dition precedent to an absolute recovery, and until it took place no
lien in favor of complainant's attorneys could attach to the land.
Attorney and client. Lien. Verdict. Before R. W.
Cabswell, Esq., Judge pro hoc vice, Glasscock Superior
Court. August Term, 1879.
Ee ported in the decision.
James WnrrBiiEAD, by brief, for plaintiff in error.
Chaples S. DuBose ; H. D. D. Twiggs, by brief, for
defendants.
Wabmbs, Chief Justice.
On the first of September, 1872, Samuel H. Usry filed
his bill in equity, in Glasscock superior court, vs. Peter
Uery. Said bill prayed the cancellation of a deed dated
November 10th, 1868, conveying a certain tract of land
from the said Samuel H. Usry to the said Peter Usry. The
bill alleged that said deed was void and ought to be can-
celed.
1. Because of the minority of the said Samuel H. Usry
at the date of its execution.
2. Because of gross inadequacy of consideration — the
allegation being that the said Samuel H. Usry received only
three hundred and five dollars for said land, which amount
was tendered back to said Peter Usry.
3. Because of fraud in the procurement of said convey-
ance.
Peter Usry, by plea and answer, defended upon the fol-
lowing grounds :
1. The failure of the said Samuel H. Usry to disaffirm
580 SUPREME COURT OF GEORGIA.
Uiry vs. Utry el al.
his contract within a reasonable time after attaining his
majority, even if he was a minor when said deed was exe-
cuted, which fact the answer denied.
2. His answer denied all fraud in the procurement of
said deed, or that the price was inadequate^ and averred that
the said Samuel H. Usry had received from him for said
land between six and seven hundred dollars.
Said cause was tried at the August Terra, 1875, of Glass-
cock superior court, and the following verdict returned :
"We, the jury, find for plaintiflE four hundred acres of land
unimproved of the eight hundred acre tract of land, by his
refunding to the defendant nine hundred and eighty-seven
50-100 dollars^ also the defendant pay costs." No decree
was entered upon this verdict.
Peter Usry filed his bill V8, Samuel H. Usry to February
term, 1870, of said court, wJierein he prayed that the time
be fixed within which said Samuel II. Usry should have
the privilege of redeeming said land.
Hon. E. H. Pottle, Chas. S. DuBose, Esq., and H. D. D.
Twiggs, Esq., were, on their motion, made parties defend-
ant, and filed an answer claiming that as solicitors of Sam-
uel H. Usry in the previous equity case for cancellation of
deed, they had a lien on said land for fees. It was admit-
ted that said attornej'S were the solicitors of Samuel H.
Usry, and that their services were worth two hundred dol-
larp.
The evidence showed that the condition of the verdict
had not been compUtd with hy Samuel II, Usry^ he never
having refunded to Peter Usr\', or oflEered to do so, the
nine hundred and eighty-seven 50-100 dollars, or any part
thereof, as required by the verdict. Among other direc-
tions, the court charged the jury as follows :
** That the legal effuct and result of tlie verdict of the
jury in tlic equity cause previously tried, was a finding for
the complainant, and a recovery for him of the land in
dispute, and the creation of a claim or lien on the land to
Peter Usry for the sum of nine hundred and eighty-seven
50-100 dollars; also, by operation of law, a lien, called aa
FEBRUARY TERM. 1880. 581
U»ry V*. Uary et al.
attorney's lien, attached to this land in favor of the defend-
ants here, who were the attorneys at law of Samuel H. Usry,
for their services rendered in the equity case previously
tried, by reason of which the recovery of the land was had,
so the status of the case is this : Peter Usry is the occupant
of the land, which is subject to two claims and liens. The
attorneys' lien, which is paramount and superior, for their
fees for services rendered in the recovery of the land, and
the claim and lien of Peter Usry for $987.50, established
and created by the verdict."
Under this charge of the court the jury found a verdict
that the defendant Samuel H. Usry, should have until the
25th of December, 1879, to refund the $987.50, and also
found that the attorneys of Samuel H. had a lien on the
land for their fees to the amount of $200.00. A motion
was made for a new trial, on the ground of error in the
charge of t court, and because the verdict was contrary
to law, which was overruled, and the complainant Peter
Usry excepted.
The 1989th section of the Code declares that attorneys
at law shall have a lien for their fees upon all suits for the
recovery of real property as well as on the property recov-
ered, and provides for the enforcement of the same. The
attorneys at law of Samuel H. Usry had no lien for their
fees on the land of Peter Usry, and the land is his until
Samuel H. pays the $987.50 ; in other words, Samuel H.
has not recovered the land so as to give his attorneys a lien
upon it for their fees as contemplated by the statute, and
will not be entitled to recover the possession of it until he
pays the $987.50. When he becomes entitled to the pos-
session of the land then his attorneys will bo entitled to a
lien thereon for their fees. It may be that Samuel H. will
never comply with the condition so as to entitle him to re-
cover the possession of the land from Peter Usr}', and it
will hardly be contended in that event that Samuel 11. Usry's
attorneys would have a lien on Peter's land for their fees
due them by Samuel H.
Let the judgment of the court below be reversed.
582 SUPREME COURT OF GEORGIA.
Bardin, execator, vs. Almand,
Hardin, executor, vs, Almand.
1. Where parlies to a pending case referred the matters in dispute to
arbitrators, without nny order of court for that purpose, and an
award was made and returned into court, and exceptions filed
thereto, on the trial of the issue so formed it was not error to allow
the Mwnrd to bo introduced in evidence without being proved.
2, Parties to n pending case may refer the matters involved to ar-
bitration without an order of court.
(a.) An exception to an award which alleges a mere error of judg-
ment in the arbitrators in giving weight to certain parts of the evi*
dence,or in failing to give proper weight to other parts, is demurra-
ble.
5. Exceptions to an award do not bring the whole case up de novo.
New evidence is admissible. to show that the award is the result of
fraud, accident or mistake, that there was a reference to chance, or
that it is otherwise illegal, but not for the purpose of merely
strengthening the case made before the arbitrators.
4. A judgment in favor of a party can be no ground of exception by
him.
H, If an exception to an award on the ground that it is contrary to and
against the evidence be sufficient to be considered at all, it is for the
jury, not the judge.
6. The charge of the court in this case, taken as a whole, is suffi-
ciently lull.
7. One who seeks to set aside an award on the ground that it is the re-
sult of mistake, must show that mistake; nor is it sufficient to infer
a mistake because the weight of the evidence was against the
award.
5. Where the case is fully covered by the general charge,the failure to in-
struct the jury on a particular branch of it is not error in the absence
of u request. The failure to charge here complained of was not
error, as there was no evidence to warrant it.
9. There being evidence to support the verdict, and the presiding judge
approving the finding, we will not interfere.
Arbitrament and award. Evidence. Practice in the
Supreme Court. Charfi;e of Court. New trial. Before
Judge Spebb. Newton Superior Court. September Term,
1879.
In 1864 Green B. Almand died testate. His will, among
other things, provided as follows : " The whole of mj es-
FEBRUARY TERM, 1880. 58a
Hardin, execntor. vs. Almand.
tate, of every kind, I direct to be left in the possession of
my wife, the income accruing thereon to be by her used
for the support of herself and my only son, during her
natural life, widowhood, or until my son becomes of age;
and in the event of my said wife's marriage, I direct that
one-third of all my property be allowed her by my execu-
tors hereinafter appointed ; and the residue of my estate,
after such division, I direct to be held by my said executors
for my only son until he becomes of age, and in the event of
her death before marriage, then my whole estate to be given
to my only son, and if my wife and son ehould survive
until my said son becomes of age, then my wife to have
one-third and my son the other two-thirds."
Hardin qualified as executor. The widow retained pos-
session np to her marriage in 1877. In the same year Al-
mand, the son, cited Hardin, the executor, to appear before
the ordinary for a final settlement. On the trial, the ordi-
nary rendered judgment against the executor for $7.61, and
plaintiff entered an appeal. After the adjournment of the
term of the superior court to which the appeal was re-
turned, the parties signed the following agreement to sub-
mit to arbitration :
" Whereas certain disputes exist between the parties, and that the
same is now in litigation in Newton superior court, on appeal from
the court of ordinary of Newton county, said suit aiising from the act-
ings and doings of the said John F. Hardin, executor of G. 6. Almand,
the said M. W. Almand being a legatee under the will of said G. B.
Almand. Now it is agreed by and between the plaintiff and defend-
ant In the above stated suit that said case be referred to the arbitra-
ment and award of John J. Stephenson and Capers Dickson, Esqs.,
both of said county, as arbitrators, and £. F. Edwards, as umpire; that
they have power to look into and investigate all matters touching the
actings and doings of the said John F. Hardin as executor of G. B.
Almand, and make a full and fair scttlemen^i between the parties.
That they may receive and hear such evidence as may be offered by
each of the parties, and after hearing the same make an award in
writing, signed and sealed ; which said award shall be final and for-
ever conclusive upon the parties in regard to the final settlement of
said executor with said legatee, M. W. Almand. It is agreed that said
arbitrators may meet this day and dispose of said case, and when said
584 SUPREME COURT OF GEORGIA.
Hardin, executor, vs. Almand.
award is made, then returned to the adjourned term of Newton supe-
rior court, or other term, and be made the judgment thereof. In wit-
ness whereof we have hereto set our hands and seals, this day and
yearabo^e written."
The principal points of dispnte seem to be whether the
claims in the hands of the executor were insolvent, or
whether he could have collected them ; and also whether
certain ^*.^/tw. held by him against one Osborn should have
been collected, or whether they had been paid off by the
testator to protect certain land which he bought from Os-
born, and formed a part of the consideration paid for the
land. The specific claims which were thus contested, and
the evidence in regard to them, pro and con, are not
necessary to an understanding of the points decided. The
other facts are set out in the decision.
J. J. Floyd, for plaintiff in error.
A. B. SiMMS ; Clabk & Pace, for defendant.
*
Jackson, Justice.
Pending a suit in Newton superior court, the parties,
without an order of court, submitted their differences to arbi*
tration, the arbitrators made an award, and on the motion
to make that award the judgment of the court, esceptions
thereto were filed by Hardin; the jury sustained the award
except as to fees of the arbitrators, and Hardin moved for a
new trial ; that motion was overruled and he excepted.
The arbitrators and umpire made the following award :
"The undersigned, to whom was referred the matter in dispute be-
tween John F. Hardin, executor of G. B. Almand, deceased, and M.
W. Almand, both of the county of Rockdale, respecting the actings
and doings of the said John F. Hardin, executor of G. B. Almand,
upon and by virtue of an application made to the court of ordinary of
said county, on the 13th day of March, 1877, by M. W. Almand, a leg-
atee under the will of the said G. B. Almand, asking for a final settle-
ment between himself as legatee as aforesaid and John F. Hardin,
executor of G. B. Almand, deceased, which application was heard
and determined by the court of ordinary on the 10th day of April, 1877;
and on the 31st day of the same month, an appeal was entered to the
superior court of said county by M. W. Almand, legatee as aforenldi
FEBKUARY TERM, 188(». 585
iJardin, executor, va. Almand.
and on the 24tb day of October, 1877, articles of agreement and sub-
mission were made and entered into between the parlies at issue, refer-
ring the whole matter of final settlement to the arbitrament of the under-
signed. And it was then and there agreed by the parties, that the said
arbitrators and umpire have full power to look into and investigate all
matters touching the actings and doings of the said John F. Hardin
as executor of G. B. Almand, and to make a ^uU and fair settlement
between the parties. And in obedience to said submission and agree-
ment, said arbitrators and umpire proceeded to hear the matters in
dispute, having met for that purpose in the court-house, in the city of
Covington in said county, on the 30th day of October, 1877, that diEiy
having been agreed on by the parties, they having due notice of the
same, when a portion of the evidence and mattters in dispute was sub-
mitted, tO'Wit : plainiifF introduced an exemplification from the records
of the court of ordinary of said county, showing the returns, vouchers,
etc.. of John F. Hardin as executor of G. B. Almand, as well as the
amount of money that came into the executor's hands; what the estate
was appraised at, etc. ; which exemplification also showed certain Ji.
fas, that had been returned by the executor to the court of ordinary as
good, and further showed the actings and doings of the said John F.
Hardin as executor, from the date of his qualification in 1866, to his
last returns to the court of ordinary, which was in July, 1877.
The defendant then showed that nearly all the notes appraised as
belonging to the said estate were utterl}'^ insolvent and worthless with
but five exceptions. Defendant also stated that the Osborn Ji. fas, had
been paid off in payment for laud bought of Elias Osborn by the said
O. B. Almand, that, at least, was his understanding, and admitted that
he had made no effort to collect them, and that they came into his
hands as property of the estate of G. B. Almand, and had been by him
so returned to the court of ordinary ; that he had collected $32.55 on
one of said^. fas. from Elias Osborn, some six months after the con-
summation of the land purchased by G. B. Almand of the said Elias
Osborn, which credit also appears on the back of said Ji, fa. The fi.
JIas, showed they had been paid off by G. B. Almand to various parties,
and by them transferred to and controlled by G. B. Almand against
Elias Osborn. The hearing of the case was then continued until
November the 7th, 1877, when defendant introduced further testimony
in regard to the worthlessneas of the notes as being barred by the statute
of limitations, the insolvency of the parties, etc. Plaintiff showed that
in two or three cases, where the executor held small notes against
parties, that he never called on them for pay, and they swear they
were ready to have paid him at any time. Plaintiff also put in evi-
dence the record of deeds showing the date of the sale of land by Os-
born to Geiger, that it was subsequent to the date of the judgment
against Osborn, and, therefore, the land was bound for the money
and the same could have been made on the Ji. fas. after Geigei 's pur-
chase.
686 SUPREME COURT OF GEORGIA.
Bardin. executor, vs. AliHand.
*' After argument of counsel on both sides, the whole matter in dis-
pute in regard to a final settlement between the said John F. Hardin,
executor as aforesaid, and M. W. Almand, legatee under the will of
Green B. Almand. deceased, was left in our bands as arbitrators and
umpire as aforesaid. We therefore find and award that twenty-six
hundred and twenty four dollars and ninty-five cents, of good money,
came into the bands of John F. Hardin as executor of Green B. Al-
mand, deceased, during the years 1867 and 1868, and after allowing him
the expenses of administration, and expenses of ward, as bbownby his
returns to the court of ordinary of said county, up to July 1877, and
computing interest at the rate of seven per cent, per annum, to Jan-
uary 1st, 1874, against the said executor, and then compouading at six
per cent, to date, upon said amounts, and allowing him interest at
seven per cent, on all disbursements to date, we find due M. W. Almand,
legatee as aforesaid, from the executor, up to date, on said amount,
the B^m of two hundred and six dollars and eighty-two and a half
cents.'^ We also find and award, that the fi. fas. against Ellas Osixim,
amounting to eight hundred and thirty five dollars and twenty-eight
cents, came into the hands of John F. Hardin as executor as afore
said, and that they were not satisfied or paid off, and the money could
have been made on said fi.fas, by the executor out of the property of
the said Elias Osborn. Computing interest on the said amount of/
feu. at seven per cent, per annum, from 1st of January, 1868, to date,
we find due M. W. Almand, legatee as aforesaid, from John F. Har-
din as executor of Q. B. Almand, deceased, the sum of fourteen hun-
dred and eleven dollars and eighty-five cents. We further find and
award, that four small notes and one receipt from D. T White, J. P..
for collection of a note put in White's hands, amounting in the aggre-
gate to about forty-four dollars as principal, should be charged up
against the executor, with interest to date in favor of the ward. We
find, therefore, due M. W. Almand, legatee as aforesaid, from thi»
source, from John F. Hardin, executor of G. B. Almand, deceased,
the sum of eighty-eight dollars and fifty cents, making the aggregate
that we find and award dueM. W. Almand, legatee, as aforesaid, from
John F. Hardin, executor of Q. B. Almand, deceased, upon final set-
tlement between the parties at issue, up to date, the sum of seventeen
hundred and seven dollars and seventeen and a half cents, ($1,707.17}{.)
*' We further find and award, that the cost already accrued, and that
may hereafter accrue in this case, be paid by the said John F. Hardin,
executor of Q. B. Almand, deceased. We further find and award, that
the sum of one hundred dollars be paid the said arbitrators and umpire
in the above case, as a fee. The payment of the same to be eqiuHy
shared by the said John F. Hardin, executor as afoi*esaid, and tbeM^
M. W. Almand.
"Witness our hands and seals this 17th day of November, IST?***
(Signed by the arbitrators and umpii^)
FEBRUARY TERM, 1880. 58T
Hardin, ezecator, tw. Almand.
A copy of the said award was served on J. W. B. Snm-
mers, as attorney for John F. Hardin, on the 27th day of
November, 1877, by E. F. Edwards, umpire.
At September adjourned term, 1877, held the first week
in December, 1877, a motion was made to approve the said
award, and to make it the judgment of the court. Objec-
tions were regularly filed to the said award, and the said
motion stood over on the docket unheard until the regular
September term, 1879. Many objections were filed to the
said award, but all were abandoned except the following,
viz:
First. Because the arbitrators made a mistake in making
the amount due to the said M. W. Almand from John F.
Hardin, to be the sum of $1,707.17^, when a fair calcula-
tion shows only the som of $7.61 to be due him.
Second. Because the arbitrators erred in making the
said John F. Hardin liable for the Osborn fi. fas., as men-
tioned in the inventory of G. B. Almand's estate, the evi-
dence showing that the said fi. fas. against Osborn were a
part of the consideration for a tract of land purchased by
6. B. Almand from said Osborn, and that G. B. Almand
took control of said Ji. fas, to protect his title to the said
land.
Third. Because the said arbitrators erred in making the
whole of said Ji. fas., or the amount apparently due thereon,
to be the property of M. W. Almand, whilst the said M.
W. Almand is entitled only to two-thirds thereof under
the will of G. B. Almand.
Fourth. Because the finding of the arbitrators of four
small notes and one receipt from D. T. White, J. P., for
collection of a note in White's hands, amounting in the
aggregate to about forty-four dollars, principal, should be
charged up against the executor, is too vague and uncertain,
there being no person mentioned in the award as to who
these notes were against ; and the testimony before the arbi-
trators showing that all the notes in the schedule (inventory)
were insolvent, and that the executor had made efforts to
V64-87
SUPREME COURT OF GEORGIA.
collect the money on White's receipt, bnt was informed bv
White that it could not be collected.
Fifth. BecuuBc the award does not contain an itemized
account and settlement between the partisB — merely the
aggregate result being stated from data given, aa the various
amounts entering into the calculations, and their action
thereon.
Sixth. Because the arbitrators erred iu fixing their fees
at $100.00 as compensation for their servicea, without the
consent of the parties to said arbitration.
Seventh. Because of newly discovered evidence of the
fact that the entry of a credit of $33.65 on the Oaborn fi.
fa, was made by mistake, and the money was collected by
the daughter of the defendant (Mrs. Almaiid) on a note
held by her against D. T. White and otiiers, and entered
on the /./a. through mistake, and should liave been entered
as a credit on said note, which was one of the notes included
in the inventory, and which was pat insaitbnt no recovery
had thereon.
Eighth. That defendant avers that the said Ji. /ag.
against Osborn were paid off by the said Alniand in Con-
federate money to the said plaintiff therein, and held by
the said Almand for the purpose of protecting the title to
the land purchased by him from tUe said Oaborn, and the
same being part of the purchase money for the said land.
Ninth. That said defendant did not swear before the
arbitrators that he had collected $33.66 on the Osborn >'./«*.
Tenth. That the said submission was not fairly made,
in this, that it was indnced by the suggestion of the party
M. W. Almand, without the knowledge or consent of coun!
eel for defendant, and in the absence of defendant's counsel,
to refer the said case to arbitration ; the agreement was
made and signed on the 24th day of October, 1S77, after
the adjonmment of the regular September term, 1877,
and before the adjonrned term, to be held iu December,
1877 ; the agreement was entered into and the trial com-
menced on the same day and cooeluded on the 27tii uf ^'o-
FEBRUARY TERM, 1880. 689
Hardin, executor, ve, Almand.
vember, 1877. Defendant had no notice of the adjonrn-
ment of said arbitrators, and was not present at all after
the 24:th of October, 1877.
Eleventh. The defendant and plaintiff agreed that the
executions against Osbom should not be counted against
him, and that said arbitrators should simply revise the cal-
culations of the ordinary, and should not review his decision
on any item of credit allowed by him to defendant.
Twelfth. Because there was no order of the court allow-
ing said cause to be submitted to arbitration. (This excep-
tion was ruled out by the court.)
Thirteenth. Because the interest was improperly com-
pounded against defendant, and was not compounded in his
favor.
Fourteenth. Because the arbitrators erred in determin-
ing that John F. Hardin was liable for the debt against
Elias Osbom, because the said claim was not in his hands
for control, except for appraisement, up to the time of the
marriage of Elizabeth Almand, widow of said deceased, and
in and at the time, and long before that time, the said Elias
Osbom was insolvent, and in 1868 took homestead.
The grounds of the motion for a new trial are as follows :
First. Because the court erred in refusing to hear the ex-
ception filed by defendant to the said award, as follows :
This suit was pending on appeal from the court of ordinary
to the superior court, and the said superior court having
jurisdiction of the said cause, could not be ousted of that
jurisdiction but by an order of said court, and the consent
of the parties. There was no order of the said court au-
thorizing a reference of this case to arbitration. The court
ordered this ground to be stricken out for the reason that
it came too late.
Second. Because the court erred in ordering the follow-
ing exception to be stricken out of the list of defendant's
objections to the award, to-wit : The arbitrators erred in de-
termining that John F. Hardin, as executor, was liable for
the debt against Elias Osbom (by the evidence it was
590 SUPREME COURT OF GEORGIA.
Hardia, execotor, ve. AlxoAiid.
shown tbein that the said claim was not in his control from
the time of the death* of his testator, except for the par-
pose of appraisement,) np to the time of the marriage of
Mrs. Elizabeth Almand, widow of deceased, to-wit : 1867 ;
and at that time, and before that time, the said Elias
Osborn was insolvent, and took homestead in 1868, and in
ref n|ing to hear and admit an j evidence to support that ob-
jection.
Third. Because the court erred in rejecting the testimony
of Elias Osborn that he was utterly insolvent long before
Green B. Almand ever got control of the said executions
against him, and in rejecting Osborn's homestead.
Fourth, Because the court erred in stating before the
jury, during the progress of the trial, that any evidence
which would illustrate any issue before the arbitrators, was
competent in this court, and afterwards ruling that he was
wrong in that decision, and then ruled that no evidence
was competent before this court that was not in evidence
before the arbitrators, and ruling out all the evidence that
conflicted with this last ruling.
When the motion for a new trial was presented t6 the
court for his approval, he struck out this ground by run-
ning his pen across it, and writing across it, " This ground
is error;" and writing in the margin as follows: '^The
court decided that ajiy evidence was admissible and com-
petent for the jury that would show, or tend to show, that
the award made by the arbitrators was the result of either
fraud, accident or mistake, or otherwise iUegal ; but that it
was not competent by evidence to make a new case here,
that was not made before the arbitrators and by that means
set aside the award."
Fifth. Because the court erred in holding and deciding
that he was bound by the decision of Judge HaU in over-
ruling the demurrer to the exceptions, and that he was
bound to send down to the jury all the exceptions covered
by the demurrer. In approving this ground the judge
wrote in the margin as follows, viz.: ^' The defendant relied
FEBRUARY TERM, 1880. 591
Hardiii, escecntor, vt. Almand.
on an order of Judge Hall overruling the demurrer to his
(defendant's) exceptions to the award ; and I held that this
judgment was binding on the court. I cannot see why de-
fendant should complain of a decision invoked by him."
Sixth. Because the court erred in sending to the jury
that exception which charges that the said award was con-
trary to and against the evidence, that being a questiofi ex-
clusively for the court and not for the jury.
Seventh. Because the court erred in charging the jury
that a mere error of judgment upon the part of the
arbitrators, or a mere difference of opinion as to the effect
of the evidence, or as to a doubtful question of law, are not
grounds for setting aside an award, without explaining to
them what kind of a mistake on the part of the arbitrators
would be sufficient to set aside an award.
Eighth. Because the court erred in charging the jury,
^^ that in reviewing this award, because you should differ
with the arbitrators in the result to which they in their
judgment arrived, is not, of itself, a sufficient ground to set
it asida ; nor because you would differ with these arbitra-
tors in your opinion as to the effect of the evidence sub-
mitted to them, is that sufficient ground to set aside the
award. It must appear to your satisfaction that the award
is the result, the consequence, of a mistake made by the ar-
bitrators. Neither can it be set aside because it may be
contrary to evidence, if there is evidence to sustain it."
This part of the charge is too vague and indelinite.
Ninth. Because the court erred in charging the jury
^* that where a party attacks an award upon the ground
that the same was made under mistake of the arbitrators,
the general merits of the controversy are not in issue, and
it falls upon the party attacking the award to show the
fact of the mistake ; and it is not enough to show that the
weight of the testimony is against the award, and thence in-
fer a mistake."
Tenth. Because the court erred in failing to charge the
jury as requested, that if the plaintiff failed to prove be-
STIPREME COURT OF GEORGIA.
fore the arbitrators that the mother of pUintiS vas detd
or married, or that plaintiff was of full age, then the plun-
tifi wss not to have an award for a.nj amonnt.
Eleventh. Because the conrt failed to inatmct the jar; »
to the mode of compating interest in this case.
Twelfth. Becansc the verdict of the jury la contreryto
evidence, and witbont evidence to snpport it, and agaimt
the charge of the conrt.
Which eaid motion was overmled bj the conrt, and de-
fendant excepted on all the groanda taken for new tritl.
1. On the tender in testimony of the award to the joij,
objection was made that it had not been proven, whicb wu
overrnled, and this is excepted to. We see no error wbidi
can warrant a new trial. The case was pending onei'
ceptioue to the award, it was returned to conrt as an anrd.
and the exceptions recognized it as what the arbitrstore
had done by excepting to the cunclusions thereof.
2. There was no error in striking out the twelfth and
fourteenth exceptions. It waw not necessary before tbe
parties conid arbitrate to take an order of conrt therefor,
though the cause was pending in conrt. Code, gSSSS,
4225; 15 Oa., 473; 61 Oa., 102. This disposes of the
twelfth exception. The fourteenth exception doesnotil-
lege any mistake in the arbitrators bnt merely error of
judgment on contested facte, and nothing that conldKt
aside the award if true. 61 Ga., 315, This di8po««of
the first and second grounds of the motion for a new trial.
3. An award is very different from a verdict. Eicep-
tions to the first are not tried as an appeal is from th«
second. To set aside an awani the? law is not the same i°
respect to the rules of evidence or the anfficiency thereof tp
maintain the finding. To set aside an award there mnatbe
evidence of clear mistake of law or fact, or a reference to
chance or lot, or fraud in the arbitmtors, or in the oppoainz
party, or accident, or that thp award is otherwise illepl
The conrts favor awards and it ig qnite a difficalt nnder
taking to set them aside. Code, <
FEBRUARY TERM, 1880. 598
HudiB, «z6cator, vtt. Almand.
Ga.^ 660 ; 8 (?a., 8, etc. Therefore the third and fourth
groands of the motion as corrected and certified by the
judge, to-wit, that he decided " that any evidence was ad-
missible and competent for the jury that would show or
tend to show that the award made by the arbitrators was the
result of either fraud, accident or mistake, or otherwise il-
legal ; but that it was not competent by evidence to make a
new case here that was not made before the arbitrators, and
by that means to set aside the award,'' were properly over-
ruled by the court. The true intent and meaning of this
ruling of the court, as applied to the facts in this case and
the testimony offered and rejected, is that when parties ar-
bitrate their diJ9iculties and disagreements, they must intro-
duce before the arbitrators all their testimony on the
points in dispute then and there ; otherwise thev will be
concluded upon the questions in litigation, and not per-
mitted to have a new trial of the case, as in appeals, or, as
the jndge termed it, to make a new case — try de novo as in
new trials, but that new testimony is admissible to show
accident, or mistake, or fraud, or other illegality in the par-
ties or arbitrators or the proceedings. So understanding
the ruling, it is approved and afBrmed.
4. It is difficult to see how the judgment overruling the
demurrer of defendant in error to the exceptions to the
award made by plaintiff in error, could possibly hurt the
plaintiff in error. Did he wish his own exceptions stricken,
and no hearing to be had upon them ? We suppose not.
Therefore the fifth ground of the motion for a new trial
was prgperly overruled.
5. If the exception to the award, in the language of the
sixth ground of the motion, to-wit, " that the said award was
contrary to and against the evidence," without further
allegations of mistake or other thing which would vitiate
it, should have been considered at all, it was proper to have
the jury to pass upon it ; and therefore the 6th ground
should have been overruled.
6. The seventh and eighth grounds are exceptions to the
594 SUPREME COURT OF GEORGIA.
Hardin, executor, ff$. Almand.
charge, based upon the idea that the judge was not careful in
telling the jary what kind of mistake as to law or eyidenoe
would vitiate an award, after telling them that mere error
of judgment on law or testimony would not authorize them
to set it aside. The charge is set out in full in the reeard,
and, taken altogether, seems to be sufficiently full on the
subject of the difference between a clear mistake of a fact,
or of the law, or mere difference of opinion between the
arbitrators and the jury on a given subject.
7. There was no error in overruling the motion on the
ninth ground. The party seeking to set aside the award
rn/uat show the fact of the mistake, if he seeks to set it
aside on that ground ; and the mere weight of testimony is
not sufficient for the jury to infer mistake and set aside the
award.
8. If the plaintiff in error desired a charge to the effect
that there was no proof that the mother of defendant in
error was married, he should have requested it in writing,
or at all evente in some form ; but it seems that she was
married from evidence in the record — ^all over it.
9. There is evidence to support the verdict, and such be-
ing the case, and the presiding judge approving the finding,
we adhere to the rule not to interfere. Interest appears to
have been correctly computed under Code, §2603, at seven per
per centum for six years, without compounding, and then
six per centum, annually compounding thereon ; butconnt-
ing it at seven per centum without compounding, and the
difference is scarcely material.
On the whole we see no legal ground upon which we
can base a judgment overruling that of the court below.
The exceptions are rather loosely pleaded. There is no
distinct allegation of fraud, accident or mistake, in a legal
sense, made or proven, as set out in the bill of exceptions
and error thereon assigned, and the. judgment must be
affirmed. 40 Ga.y 674; 41 Ga.. 20, 648; 88 Oa., 187; 61
Ga., 162, 516.
Judgment affirmed.
FEBRUARY TERM, 1880. 696
McMatb v$. Teel, admixilBtmtor.
McMath w. Teel, adrainistrator.
1. Where it appeared that a bond for title was produced under notice to
the defendant, and that, on his death, his widow, by consent, was
made a party in his stead, and stood as an heir at law claiming a
benefit under the paper, it was properly admitted without proof of
execution, but subject to be excluded if it subsequently appeared
that she had a legal claim to the land independently of the bond.
2. The other party to the cause of action being dead, the defendant
was incompetent to show that her possession was not under the bond
to her husband but in her own right, that her entry was by the dead
plaintiflTs consent, or under a verbal gift from him, or even under a
writing from him, then lost.
8. A letter is inadmissible to bind a third person in the absence of proof
of authority from him to the writer to make the statements and ad-
missions therein contained.
4. When the husband and wife enter into possession of land together in
1858, and the former subsequently, in 1870, gave his note to the
plaintiff's Intestate and took a bond for title from him, and held
under such bond until his death, the husband during life, and his
widow after his death, in the absence of any written title, was es-
topped from setting up an adverse title by possession even though
for twenty years.
Production of papers. Evidence. Witness. Estoppel.
Hnsband and wife. Prescription. Before Judge Crisp.
Snmter Superior Court. October Adjourned Term, 1878.
Eeported in the opinion.
Hawkins & Hawkins, for plaintiff in error.
B. P. HoLiJS ; GuEBBT & Son, for defendant.
Crawfobd, Justice.
This was an action of ejectment brought by John Teel
against John L. McMath ; pending the suit both parties
died ; Alexander Teel, the administrator of the plaintiff,
and Mrs. McMath, the wife of the defendant, were made
parties, and the cause proceeded. After the evidence had
been submitted, the jury, under the charge of the court,
596 SUPREME COURT OF GEORGIA.
HclIkUi M. TmI. admlDlMiBtar.
retired and returned with a verdict for the plaintiff, where-
npon the defendant asked for a new trial, which wae refneed,
and she excepted.
The principal gronnds relied upon for a new trial were;
1. That the conrt erred in admitting a bond for titles.
there being two sabecribing witneesee thereto, withoat proof
of its execution, it having been brought into conrt under ■
notice served npon John H. McMath, the first defendint,
before Mrs. McMath was made a party.
2. In not allowing Mrs. McMath, the defendant, to ttf-
tify that ahe never held posseseioTi nndcr the bond for titles,
nor nnder her hnsband.
3. In not allowing a letter of October, 1875, to Mrs. Me^
Math, to be read in evidence, up^n her testjt^-ing tliat siie
received it by doe course of imiii. that it was the handari
ting of her sister, who lived witli lier father, who wm dd
and infirm, and also that of J. W. Finch, a brother-in-law
of Lonisa Teel, the writer, who said that according toll"'
best of witness' opinion it wae h(!r handwriting.
4. That the conrt erred in cliariririg the jury, tbut if the
defendant was a married woman .ind entered the poeseeaor,
with her hnsband, she could nut. witliont. written title, »'
up possession in herself. And ;ilt]ioi)gli they went in po>-
session over twenty years ago. if afterwards her hnsbawi
took a bond for titles, he is estoppeil from denying plui"
tiff's title, and aha is estopped ^le the possession of the bn^
band is the possession of the wife.
5. That if McMath took a bond for titles from Tei-I.
although he was then in possession, hin possest^ion sfterwu^>
was nnder the bond, and so was tiers, and they were butli
estopped.
6. That if McMath was estopped, and he and hte wif*
entered without written title, and McMath took a bond f<"
titles from Teel, then he is estopped and she is estoppel'
and if these facts appear you ought to find for the plaintil^
1. The error complained of in the first ground, that ibc
bond was illegally admitted in evidence, does not fall within
FEBRUARY TERM, 1880. 597
McMath V8, Teel, administrator.
the very letter of section 3836 of the Code. That section
provides that the production of the paper by the opposite
party J dispenses with the proof of execution if he claims
a benefit under it. In this case the paper was produced
under a notice to the husband, John L. McMath, before
Mrs. McMath was substituted as the defendant on account
of his death, and if he had still been the defendant instead
of his wife, no question would have been raised as to its
admissibility.
When the bond for titles was offered^ and the statement
made as to the manner in which it was brought into court,
nothing appeared to the judge except that it came from
the hands of the defendant McMath ; and that, by consent,
Mrs. McMath had come in after his death, was made a party
in his place and stead, and stood as an heir at law claiming
a benefit under the bond which her husband had produced
under a legal notice.
We think that as the case stood at that time, the bond
was admissible, subject to be ruled out if afterwards it
should be made to appear that she had a legal claim to the
land outside of, and independently of, his bond for titles.
No such title being shown afterwards, the bond remained
in evidence properly for the consideration of the jury.
2. Was Mrs. McMath, the defendant, a competent witness
to testify as to any matter of fact affecting the title of John
Teel, the original plaintiff, and who was then dead ? She
desired to set up title in herself by showing twenty years pos-
session adverse to his title, that her possession was not under
the bond for titles to her husband but in her own right*
To have allowed her to have shown that her entry was by
his consent, or under a verbal gift, or even under a paper
writing from him, then lost, would have been allowing her
to testify in her own behalf, when the other party to the
contract and cause of action was dead, and squarely in the
very face of the evidence act of 1866. She was properly
excluded from the stand. 42d Ga.^ 120 ; 44 /&., 51.
3. In the matter of the ruling upon the admissibility of
598 SUPREME COURT OF GEORGIA.
McMatb IV. Teel, admioifltrmtor.
the letter offered, the ground of exclasion no doubt was,
not because the handwriting of Louisa Teel was not snflS-
cientlj proven, but because there was no proof of her au-
thority from him to write as she did in reference to this
land. To have bound him by a letter, which it was not
claimed that he wrote, made it indispensable that his au-
thority therefor should .have been shown ; in its absence,
therefore, the court was clearly right on the law in holding
it inadmissible. 47 Oa.^ 09.
4, 5, 6. These grounds all involve the same legal ques-
tions in effect, and therefore may be considered together-
Admitting the facts to be that John L. McMathand his
wife, the defendant, went into the possession of this land
together in 1858, and so remained until 1870, and then
thatMcMath gave his note for $750.00 and took a bond for
titles from John Teel, which is the undisputed testimony
in the record, was the charge of the judge wrong ?
The husband in this state is the head of the family, the
wife's legal existence is merged in his, except for her pro-
tection or benefit, or for the preservation of public order.
Code, §1753. When these parties therefore entered upon
this land and took possession of it, nothing else appearing,
the wife was utterly unknown to the law in the matter of
the possession ; and being in 1858, if the father had said or
done anything towards making her a gift of it, unless it
was in writing, and the marital rights of the husband exclu-
ded, they would have attached and the possession would
have been his.
Therefore, where the instructions given by the court to
the jury were, that she could not, without some written
title, set up possession in herself, even though she might h^ve
gone in twenty years ago; that if afterwards, in 1870, her hus-
band took a bond for titles and gave his note for the land,
then they were both estopped ; that although he may have
been in possession before that time, yet if he took the bond
and remained in afterwards under it, then he was estopped ;
that if he were estopped, and she entered with him without
FEBRUARY TERM, 1880. 599
Fuller vs. Arnold et ux,
a title, that she too was estopped, and if those facts were
made to appear, then they ought to find for the plaintiff,
we think that they were such instractions as the law and
the evidence jadtified and shonld have been given.
Judgment affirmea.
FuLLKB V8. Arnold et ux.
1. Where a motion to dismiss a certiorari was made and overruled, but
no order was entered on the minutes, and at a subsequent term the
same ground was again urged on a new motion to dismiss, there was
no error in allowing the order to be entered nuno pro tune and hold-
ing that ground to be re$ adjudieata, no exception having been taken
to the ruling at the time when it was made.
3. It is not necessary to attach to a petition for certiorari a certificate
of the magistrate that costs have been paid and security given be-
fore the sanction of the judge can be obtained.
3 Before a writ of certiorari can be legally issued by the clerk of the
superior court, there must be filed in his office, within three months
from the decision, both the petition, sanctioned by the Judge, and
also a certificate of the magistrate that all costs have been paid and
bond and security given, or a pauper affidavit in lieu thereof. Where
Ihe magistrate did not sign such a certificate within three montlis
from the decision, the certiorari should have been dismissed.
Certiorari, Hes adjudi<iata. Practice in the Superior
Court. Before Judge Spekr. Pike Superior Court. Oc-
tober Terra, 1879.
Reported in the decision.
S. D. Ibvin, by Jas. H. Walkbb, for plaintiff in error.
J. A. Hunt, for defendants.
Wabnek, Chief Justice.
This case comes before this court on a bill of exceptions
to the judgment of the court below in overruling a motion
to dismias a certiorari on the grounds therein stated.
600 SUPREME COURT OF GEORGIA.
FoUer tw. Arnold ei vx.
1. It appears from the bill of exceptions that the first
ground in the motion had been overruled by the conrt at a
previous term thereof, and no exception taken thereto, but
the order overruling it was not entered on the minutes ; the
court, however, upon satisfactory evidence before it, allowed
the order to be entered on the minutes nunc pro tunc^ and
held that this ground of the motion was res adjudic€tta,
and for that reason overruled it. There was no error in
overruling the first ground of the motion to dismiss the
certiorari on the statement of facts contained in the record.
2. There was no error in overruling the second ground of
the motion to dismiss, because there was no certificate of
the justice attached to the petition for certiorari that all
costs had been paid and bond and security given when it
was sanctioned by the judge, inasmuch as the law does not
now require that to be done before the judge sanctions a
certiorari.
3. In our judgment, the court erred in not dismissing the
certiorari on the third ground as set forth in the motion.
When a party seeks to obtain a certiorari of the judgment
of a justice court, he must present his petition therefor to
the judge of the superior court and obtain his sanction
thereon, and also obtain a certificate of the justice tiiat bond
and security has been given for the eventual condemnation
money, and that all costs have been paid, or make a pau-
per affidavit, all of which must be filed in the clerk^s office
of the superior court within three months after the decis-
ion complained of before the clerk can legally issue the
writ of certiorari. See Code, sections 4052, 4054, 4056,
4057. It appears from the record before us that the judg-
ment was rendered by the justice on the 8th of December,
1877, and it is agreed by the parties that the justice did
not sign the certificate that the bond and security had been
given and the cost paid until after the 10th of ALtrch, 1878,
which was more than three months after the rendition of
the judgment ; consequently Ai« certificate that the costs had
been paid and bond and security given, could not have been
FEBRUARY TERM, 1880. 6ul
Wilcox, Glbbi A Co. vt. Owens.
filed io the clerk's ofiice within three moDths after the jadg-
ment of the jastice was rendered, inasmuch as it conld not
be filed as his certificate until he had first signed it, and he
did not sign it until after the expiration of three months;
therefore the writ of certiorari was illegally issued by the
clerk and should have been dismissed.
Let the judgment of the court below be reversed.
Wilcox, Gibbs & Company vs. Owens.
1. A guano note which contains the clauBe "guano sold and guaran-
teed under analysis of Dr. Means, inspector. Savannah, which
analysis has been submitted to me/' does not by implication ex-
clude the defense that the fertilizer is not reasonably suited to the
purposes for which it was sold.
2. If a contract is of doubtful meaning, it is to be construed against
the party who drew it.
Contracts. Promissory notes. Before Judge Cbisp.
Schley Superior Court. October Term, 1878.
Reported in the opinion.
W. A. Hawkins; J. A. Anslby ; J. N. Hudson, for
plaintiffs in error.
GuBBBT & Son, for defendant.
Jackson, Justice.
Suit was brought by the plaintiffs against the defendant
on the following contract :
*' Savannah, Ga., January 4th, 1876.
••$71.00."
" On or before the 1st day of November afterdate, 1 promise to pay
Wilcox, Gibbs & Co., or bearer, seventy-one dollars, and in case legal
means are taken to collect the same, I agree to pay all costs and ex-
penses, including ten per cent, counsel fees and ten per cent, interest
from maturity, and I hereby waive all right of exemption of home«
602 SUPREME COURT OF GEORGIA,
Wilcox, QlbbB A Go. vt. Owens.
Stead and personalty as to this debt, for value received, being for
guano and expenses on same, with option of paying for same in cotton
delivered at Americus depot, on the basis of seventeen cents per pound
for middlings, provided it is so delivered on or before first of Novem-
ber 1876 . Guano sold and guaranteed under analysis of Dr. A. Means,
inspector, Savannah, which analysis has been submitted to me."
The defendant pleaded that the fertilizer was not reason-
ably suited to the purpose for which it was sold and
bought, and was utterly worthless, and offered evidence to
prove those facts, to which evidence plaintiffs objected on the
ground that they warranted the guano or fertilizer only to
come up to the analysis of Dr. Means, and that this ex-
cluded the implied warranty of its fitness or suitableness as
a fertilizer, and the right to set up the defense that it was
worthless.
The court admitted the evidence, and the jury found for
the defendant, and thq plaintiffs excepted.
The uniform ruling of this court in all the cases which
have been brought here on the subject of fertilizers has been
to hold all parties strictly to the contract, and to permit
no defense to be made to the claim for payment of fertili-
zers purchased by planters where they had contracted to
make none. If, therefore, by this contract, construed ac-
cording to the rules of law applicable to all contracts, this
defendant has agreed to make no defense except that this
fertilizer did not come up to Dr. Means' analysis, he can
make no other. Has he done so ? The contract is devised
and written, perhaps printed, by the dealers in this fertili-
zer, and where the meaning is doubtful the doubt muBt
be resolved against them.
In section 2651 of our Code these words are foond:
'^ the seller, however, in all cases (unless expressly or from
the nature of the transaction excepted) warrants — 1. That ^^
has a valid title and right to sell. 2. That the article aa^^
is merchantable, and reasonably suited to the use intended>'
Therefore in this case the sellers warranted that thia ferti^^'
zer was merchantable, and reasonably suited to the nae i^
tended, unless this warranty be expressly excepted froi^
FEBRUARY TERM, 1880. 603
Wilcox, Gibbi A Co. w. (^ens.
this contract, or unless it is excepted therefrom from the
nature of the transaction.
It is not pretended that the warranty of the title is ex-
clnded by this guaranty ; is the other implied warranty ex-
claded ? There are no words in this contract that expressly
except this warranty which the law also puts in it ; and the
nature of the transaction does not except it, because the
thing sold was known by both parties to be for fertilizing
the soil, that was the use intended, and that use and its
adaptation to it are of the very essence of the contract.
It can hardly be said to be of doubtful construction ; but
if so it would be construed against those who prepared and
put out the paper.
The guarantee that the article comes up to Dr. Means'
analysis, does not expressly exclude the warranty that it is
merchantable and reasonably suited to the use intended —
to-wit, the manuring the land and increasing the crop.
The purchaser had a right to stipulate for both, and not to
buy unless both were in the contract, and both might well
consist without the overthrow of either. The one the law
gave the purchaser ; the other the express contract gave
him. Now if in the express contract it had been cov-
enanted that only this guaranty or warranty should be con-
sidered given, that none other was intended, or that any
other was excluded, or that the only defense to the note
should be that the thing sold did not fill the standard of Dr.
Means' analysis, or any words to any such effect were in
the express agreement, then this implied warranty of our
Code would be excluded, but not otherwise. And on this
line are the decisions of this court uniformly, so far as we
recall them. In the case in 61 Oa,^ 392, Jackson vs, Lang-
ston dk Crams^ cited by plaintiffs in error, the express war-
ranty necessarily excluded the implied warranty of the
Code. The words in that contract are : " It is expressly
agreed and understood that I buy said commercial manure
for my own use, to be used on lands cultivated by or for
me, and it is guaranteed to me as to its effect on crops only
V W-«8
604 SUPREME COURT OF GEORGIA.
WUcoz, Qibbt ft Co. iw. Oweni.
as to the analysis of the state inspector, as evidenced by his
brand on each and every package, and I hereby accept the
said analysis, as evidenced by said brand, as a correct esti-
mate of the commercial valaeof said fertilizer." Of coarse
these words are utterly inconsistent with any other warranty
of its commercial value or fitness for the use intended, and
excluded most clearly the implied warranty of the Code.
The case at bar is more like the case in 60 (?a., bih
where the words are, ^' this fertilizer is sold under the in-
spection and analysis of Dr. A. Means, inspector at Savan-
nah, and the department of agriculture at Atlanta ;'* and in
that case this court said : " There is certainly no express
stipulation that the purchaser of the fertilizer would rely
solely on the inspection and analysis referred to, and a stip-
ulation to that effect is not a necessary implication. The
language seems to be a mere affinnation of a fact, with no
indication that the one fact is intended to render all other
facts immaterial. Suppose it were true that the article had
been inspected and analyzed by the aggregate scientific
skill of the universe, and that, nevertheless, it was not a
fertilizer, had. no fertilizing property, and was wholly
worthless, would the inspection and analysis make the ar-
ticle '' merchantable and reasonably suited (to the use in-
tended ?"
And the proof was al'k>wed to show that the article was
not reasonably suited for fertilizing purposes, and was
worthless, and the defense was held good. That case
covers this. See also 61 6^a.,67, 364^8-9 ; 60 Oa., 288.
Judgment affirmed.
FEBRUARY TERM, 1880. 605
Smith w. Th« State.
Smith vs. The State of Geoboia.
1. Arson can seldom be established by positive testimony. The charac-
ter of the offense makes it necessarily dependent for conviction
upon confessions and corroborating circumstances. The force to be
given to the corroboration must be left to an upright and intelligent
jury.
2. The law of the case was fairly submitted to the jury by the charge.
3. Whether the out*house burnt be in a city, town or village, or not,
does not affect the legal character of the offense. It affects the
punishment only. Hence the court properly refused to exclude the
testimony because the indictment failed to allege that the out-house
was not in a city, town or village.
Criminal law. Arson. Confessions. New trial. Before
Judge Spebk. Monroe Superior Court. September Term,
1879.
Reported in the opinion.
C. A. Tubneb; J. A. Hunt, by Robbbt Bbbnub, for
plaintiff in error.
F. D. DnMLKB, solicitor-general, by Jahbs S. Botnton
for the state.
Cbawfobd, Justice.
Wiley Smith was indicted for the offense of arson and
found guilty ; he moved for a new trial, which the court
refused, and he excepted.
The grounds on which the defendant rested his motion
for a new trial were :
(1). Because the verdict was contrary to law, contrary to
evidence, and without evidence to support it.
(2). Because the charge of the court was based upon a
hypothesis founded on the circumstances narrated in the
evidence on the side of guilt, and not in also giving in
charge that the circumstances, if consistent with his inno-
cence, sliould be construed in his favor.
606 SUPREME COURT OF GEORGIA.
Smith vt The 8Ute.
(3). Because the court allowed the state's witnesses to
testify that the burning occurred in the country, and in not
ruling out the same after it was showti that the house bamed
was not in a city, town or village.
1. The verdict of the jury was evidently based on the
confessions made by the prisoner, and because it was also
clearly made to appear that the corn-crib of John Dye, the
prosecutor, was in ashes, and that it was laid in ashes juBt
about the time the prisoner says he passed through the lot,
and at which time ho was known to have been there.
He said he burnt it — said it repeatedly, and to different
people ; and said it, as appears from this record, freely and
voluntarily, and said he confessed it because he was sorr;
for it.
His confession was made seventeen days after the burn-
ing, and when there seems to have been no excitement aboat
it, and no reason for it, except the burden of guilt resting
upon his conscience.
A confession alone, however, being insufiicient to convict,
makes other evidence in corroboration necessary. No detinite
rule has been laid down as to how far, or in what particulars,
the confession must be corroborated. ^* Each case," says this
court in 45 Oa.^ 44, '^ must stand on its own footing, the
jury being the judges. And if they convict on a confession
which is corroborated by one circumstance, the rule is com-
plied with ; the sti*ength of that circumstance is to be
judged of by the jury, according to the case."
In the case before us, the defendant came through the lot^
which was about seventy five yards from the dwelling;
passed within thirty steps of the crib ; came to the door of
the dwelling and knocked upon it heavily aud rapidly, calling
louder than he ever had, and as fast as he could as though
he wanted it opened quickly, which was done ; and the per-
son opening the door walked into the passage ; saw the
light of the fire shining on the front gate and gave the'
alarm ; whilst the defendant, who had pushed open the door,
went to the hearth and squatted down, denied seeing the ciib
FEBRUAR"? TERM, 1880. 607
Smith «f . The State.
OD fire, did not return to the door of the house to see the
fire, nor go to it until called several times. The fire was
burning out at the top when the person at the house gave
the alarm, and it was about daybreak in the morning. The
crib was only ten or fifteen steps from where defendant had
to get the wood with which to build the fire in the house,
and though it was his business to build the fire, and he came
for that purpose, he did not bring the wood.
If it required positive testimony to convict in cases of
arson, it would be next to impossible ever to procure a
conviction, for it is a crime committed under cover of dark-
ness, and when there is no human eye to see ; therefore,
circumstances and confessions are the only evidence usually
obtained ; and, whilst they should be received with great
caution, yet, if they are such as to convince the mind
and satisfy the judgment of the upright and intelligent
juror, this is all that the law requires. In this case they
have so said, and wc cannot say that it was contrary to the
evidence.
2. The second ground of error arises under the charge of
the court, and upon an examinatioo of the whole charge,
we think that the judge submitted the law of the case un-
der the evidence fairly to the jury.
8. The indictment charged the defendant with having
maliciously and wilfully burned thecorn-houaeof the prose-
cutor, the same being an out-house. The defendant's coun-
sel moved to rule out all the testimony given in under the
indictment, because it was not alleged that the house burned
was not in a town, city or village. The distinction between
the burning of an out-house of another on a farm, or plan-
tation, or elsewhere, not in a city, town or village, is con-
fined by the Code to the punishment, and not to the legal
offense. There was no error, therefore, in refusing to rule
out the testimony on that ground.
Judgment afiirmed.
608 SUPREME COURT OF GEORGIA.
Heam vt. Adftmsoa.
Hbarm vs. Adamson.
It is the duty of a garnishee in a justice court to answer a summoiu
of garnishment served upon him within ten days. This duty is im*
posed upon him by law, whether the summons specifies that he shall
answer within that time or not.
Garnishment. Before Jndge Bqohanak. Carroll 80-
perior Court. October Term, 1879.
Adameon was a judgment creditor of one Snow. On
December 2nd, 1878, he sued out summons of gamishmeDt,
which was served on Hearn the same day. This snminoDB
called upon Hearn to answer at the December term of the
justice court. At the bottom of the summons was a '^F.
S.," without date or signature, notifying the garnishee to
answer in ten days. The December term was on December
14th. On that day Hearn answered ^'not indebted."
Plaintiff moved to take judgment against him by defaaU,
because he did not answer in ten days. The motion web
granted. On appeal to a jury they found for the garnishee.
Plaintiff sued out a writ of certiorari. On the hearing it
was sustained, and the garnishee excepted.
OscAB Bbbsb ; N. Shbllnutt, by brief, for plaintiff in
error, cited Code §§4139, 4161, 3586, 4162; 15 Oa., 186;
50 lb., 676 : 55 lb., 410 ; 58 lb., 28 ; 60 /ft., 554.
Gbow & Adamson, by H. C. Pbbplbs, for defendant,
cited Code, §4161 ; 65 Oa., 410.
Wabmbr, Chief Justice.
This case came before the court below on a certio^
Twri from a justice court, on the hearing of which the
court sustained the certiorari, and the defendant thereiD
excepted.
It appears from the record that the defendant in thetfr
PEBRtJARY TERM, 1880. 609
Th« PlaaUm* Bank of Fort Valley tv . Pratar tt al.
twrari had been served with a summons of garnishment in
a jnstice conrt, bat did not answer the same antil after
the expinition of ten days from the date of the service npon
him, the sammons not specifically requiring him to answer
within ten days, though there was a postscript to the sum-
mons that he must answer in ten days, which was without
date or signature. On the appeal trial in the justice court
the jury found a verdict in favor of the garnishee. The
court sustained the certiorari on the ground that the ver-
dict discharging the garnishee was contrary to law and the
evidence.
There was no error in this ruling of the court. When
the garnishee was served with the summons, the law made
it his duty to answer it within ten days from the date of
such service, and it was not necessary to state in the sum-
mons that he should answer within ten days. The mandate
of the law was suflScient for that purpose, of which he was
bound to take notice, and be governed by it. See Code,
§4161.
Let the judgment of the court below be affirmed.
Thk Planters' Bank of Fort Valt.rt V8, Pratsr et al,
1. M. & Co. took from a trustee an absolute conveyance to certain
land, and gave a bond to re-convey on payment of certain individ-
ual notes of the trustee, payable to their order, having full know-
ledge that the land was bought with trust funds. The notes were
transferred to a bank by delivery, and without indorsement:
HM, that such delivery did not convey the title to the land to the bank.
At best, it would only be subrogated to the rights of M. ft Co., and
affected by the notice to them.
2 Where a trustee wrongfully conveyed land in which he had invested
funds of the trust estate, for the purpose of securing an individual
debt, to one who took with full notice thereof, the CMiu qtie trti»ta
could follow the funds, and take the land bought with their money,
or enforce their lien thereon. A sale of the land having been or-
dered, the claim of the eetttU que trusts for the principal and interest
of their fund should be satisfied before that of the creditor.
610 SUPREME COURT OF GEORGIA.
The PUnten' Bank of Port Valley w. Prater «< of.
Contracts. Lien. Assignment. Trnst. Equity. Notice.
Before J ndge Simmons, Crawford Superior Court March
Term, 1879.
This was a bill filed by the children of one W. 6. Pater
againut him, the bank, and the sheriff of Crawford county.
It alleged that Prater, as executor of their grandfather, and
as their guardian, had received certain funds in trust for
them, and had invested it in certain lands known as the
Ross place, in Crawford county, taking title to himself,
being 1,800 acres; that 600 of the same had been conveyed
by Prater to J. W. Mathews Co. by defeasible deed signed
by Prater and wife, under §1960 of the Code, to secure
certain notes held by J. W. Mathews & Co. on him, taking
bond to re-convey, and these papers had been traded to the
bank, with full notice to all parties of their rights. The
prayer was for injunction, sale of land and payment of their
trust claim from proceeds, etc.
The bank answered, denying the existence of the trust
fund, and setting up that they had purchased the notes and
deed as mercantile paper before due, and without any notice
of the trust, if any there was ; that they had sued the notes
to judgment, in name of Mathews & Co., for use of bank,
and had had Mathews & Co. make a deed back to Prater,
and filed it, and had had executions levied on the 600 acres-
all strictly according to the statute.
The only question submitted to the jury was the amount
complainants' claim, and the jury found $1,444.48 principal,
with $826.00 interest to April 1st, 1879.
The other questions were left, by agreement, to the pre-
siding judge. He decided as follows :
1. That there being no written transfer from Mathews A
Co. to the bank, the latter took subject to all the equities
between the former and complainants, and was affected by
notice to Mathews & Co.
2. That notice to one of the directors, who took no pari in
the transaction, was notice to the bank, and bound it
PEBRTTARY TERM, 1880. 611
The Planttn* Bank of Fort Vallej v$. Prater tt al
8. That the complainants be paid in fall their principal
and interest, and the balance, if any, after paying costs, be
paid to the bank.
Finally he decreed that the entire tract be sold, and the
proceeds applied as above.
The bank moved for a new trial, which was refused, and
it excepted.
Duncan & Mlllbb ; S. Hall, for plaintiff in error.
R. D. Smith ; W. S. Wallace, for defendants.
Jackson, Justice.
Sarah J. Prater et al.j children of W. Q. Prater, brought
their bill against W. G. Prater, their father and trustee, and
the Planters' Bank of Fort Valley, for a perpetual injunc-
tion against the bank, prohibiting it from enforcing a judg-
ment against W. G. Prater, on certain lands which were
purchased with their money by their father and trustee.
Part of these lands had been conveyed to Mathewe & Co.
by Prater absolutely, Mrs. Prater signing the deed with her
husband, and Mathews & Co. obligating themselves to re-
convey on Prater's paying them certain notes, payable to
their order. These notes were transferred by delivery to
the bank, and were sued to judgment in the name of Math-
ews & Co. for its use. Execution issued on this judgment
was levied on the land so conveyed to Mathews & Co., that
firm having re-conveyed it to Prater for the purpose of
selling it under the execution. To stay this sale, and to
have the title assured to them, and for general relief, the
certui qtte trusts filed this bill.
The equities arising upon these facts were submitted to
the court, and the decree was in favor of the complainants,
directing that all the lands be sold, and complainants be
paid the principal and interest of their fund which went
into the lands, and balance, if any, to the bank. To this
decree the bank excepted, and it makes three points. First,
612 SUPREME COURT OP GEORGIA.
The Planters' Bank of Fort Valley m. Prater et al.
that the court erred in holding that the transfer of the deed
from Mathews & Co. to the bank should have been in writ-
ing; secondly, in holding that notice to one of the directors
of the bank, who took no part in the negotiation with
Mathews & Co., was notice to the bank, and thirdly, that
the decree was wrong in ordering the proceeds of the sale
first to be applied to the payment of complainants.
1. In regard to the first point, it will be remarked that
the note itself was only transferred by delivery to the bank,
though payable to tlie order of Mathews & Co., and there-
fore that tlie question does not arise wliether the transfer
of the legal title to the note carried with it in equity the
conveyance of the land as a security. It might well be
doubted that if it had been indorsed it would carry an ab-
solute deed to the land, such as this transaction is made by
our statute, over to the indorsee. Code, §§1969, 1970.
And even if the transaction made a mortgage, it would
seem that under the act of 1873— acts of 1873, pp, 42, 47 —
Code, §1996 — ^the assignment must be in writing to be valid;
inasmuch as the twenty-first section of that act declares
^' that all liens herein provided for, may be assigned by
writing and not oiherwise^^ and mortgages are provided
for in that act.
But this case is one where neither the note, though pay-
able to order, nor the conveyance, has been assigned in
writing, by indorsement or otherwise, to the bank. The
legal title is in Mathews & Co.; they had full notice of the
equities of complainants, and they held, and hold it, subject
to those equities. To make the best case possible for the
bank, it only had an equity in the land through the transfer
of Mathews & Co. to it by delivery of note and deeds, and
complainants had also an equity — well known to Mathews
& Co., because they knew, according to evidence, all about
the money of complainants having gone into the land and
participated in the misconduct of the trustee. Code, §815!;
19 Oa., 180.
So that it makes no difference whether the bank had or
FEBRUARY TERM, 1880. 6t8
The Planters' Bank of Fort Valley «f . Prater ei al.
had not notice of the trnst ; and the point that notice to a
director who did not participate in the transaction or nego-
tiation, is not notice to the bank, need not be considered.
2. If it be true that the money of complainants bought
the land, then thej had the right to follow it into the land,
and take the land bought with the proceeds of what their
grandfather bequeathed to them, or assert and enforce their
lien thereon. 19 Ga.^ 66. If so, it is clear that the court
did not err in ruling that their claim be first paid ; for if
they could have held the land at their election, they would
be entitled to be paid out of its proceeds when sold, at least
to the extent of their money which went into it with inter-
est, and such is the decree.
The truth seems to be that the bank never bought these
notes before due. It got no title — legal title — to them.
They were payable to order and not indorsed. So that it
cannot claim that the deed was carried to it with the title
to the notes ; nor did the deed pass by any writing. Math-
ews & Co. held the legal title to the land levied on with
full notice of the trust, and whatever right the bank has is
dependent on their legal title. The bank is therefore af-
fected with notice to Mathews & Co.
The entire transaction — notes and conveyance, with de-
feasance or bond to re-convey — make a chose in action, and
such must be assigned to vest title in the assignee, Code,
§2244 ; and such assignment must be in writing, under the
construction given '^ assignment," as used in that section of
the Code, in the case of Turk vs, Cook^ decided last term.
Therefore, in any view we can take, the judgment is right
and must be affirmed.
Judgment affirmed.
eU SUPREME COURT OF GEORGIA.
Btory A Bro. t». Walker.
StOBT & BSOTHBB VS. WaLKBB.
1 . When a guardian, who was also the husband of his ward, transferred
an execution in his favor as guardian to certain creditors as collate-
ral security for supplies, and they collected money thereon, the
remedies of the wife were twofold: First. Those of a ward to call
her guardian to an account. Second. Those of a wife, to recover
from a creditor who knowingly receives, in payment of his debt,
money belonging to his debtor*8 wife.
2m Where the action belongs to the latter class, it is competent for the
defendants to show that the money was received in payment of the
debt of the wife; that though these goods were charged to the hus-
band, yet the quanity sold to and used on the wife's place amounted
to more than the sum received on the execution, and this after her
consent to the transfer; that the husband was insolvent, and credit
was refused him.
Husband and wife. Contracts. Trust. Before Judge
Lawson. Greene Superior Court. March Adjourned Term,
1879.
Reported in the opinion.
MoWhobteb Bbos., for plaintiffs in error.
M. W. Lewis & Son, for defendant.
Cbawfobd, Justice.
Mrs. Mary L. Walker brought suit against J. M. Story
& Brother to recover the sum of $339.50. with interest
thereon, which she alleged that they had collected upon
an execution in favor of E. T. Walker, guardian of Mar;
L. Walker, vs. John E. Jackson, she being the ward men-
tioned in saidj€.ya.
It appears from the record that E. T. Walker was not
only the guardian but the husband of this ward, and that
he had transferred the fi.fa. to J. M. Story & Brother
as collateral security for supplies on the 4:th day of May,
1876, and that on the Ist day of November, 1876, the said
FEBRUARY TERM, 1880. 615
Story d Bro. w. Walker.
transfer was approved by the written consent of the said
Mary L. Walker. The sum alleged to have been collected was
shown by the receipt of the defendants. Having arrived
at fall age she commenced this suit in her own name to re-
cover back the money.
The defendants pleaded the general iss^ie and an equit-
able plea, in which they set up the fact that E. T. Walker,
in 1875 and 1876, was running two plantations, one for him-
self and one for his ward-wife. That the amount of goods
sold for and used on her own plantation exceeded the sum
paid to them on the execution transferred, all of which had
been to and for her use and benefit on her said plantation.
Upon the trial of the issues thus made up, under the tes-
timony admitted and the charge of the court, the jury re-
turned a verdict for the plaintiff for the full amount of
money collected on the^.y!z. aforesaid. A. new trial was
moved for, because :
L The court erred in charging the jury that if they be-
lieved that £. T. Walker held an execution as guardian of
his wife, and that he transferred it as guardian to the de-
fendants, to be credited on an account of his own, then they
should find for the plaintiff.
2. The court ruled out the testimony of J. M. Story,
which was that in 1876 his firm furnished Walker with sup-
plies to run his own and Mrs. Walker's plantations, and
while all the goods were charged to him, the quantity sold
to and used on her place was more than the sum which they
had collected.
3. The court ruled out the testimony of J. M. Story, that
the aggregate amount of goods sold to Walker and used on
his wife's plantation after the 4th of May, 1876, to the time
of collecting the money on the execution, was more than
the amount of the same.
4. The court erred in refusing to allow defendantc to
prove that the aggregate amount of goods in said account
used on Mrs. Walker's plantation, after her assent to the
transfer, was more than the amount received by them,
616 SUPREME COURT OF GEORGIA.
blurr * B». n. Walks.
althongh cbai^d on the books to him, ;et the; were used
in making a crop ou her piace aud for her benefit.
5. The conrt refneed to allow defendants to ahuw that
Walker was insolrent,
6. The court refnsed to allow defendants to show that
Walker had a good and valid bond as the guardian of hie
wife.
It ia needless to take np separately and adjudge the va-
rious grounds relied upon in this motion fur a new trial.
The pleadings in every cause should clearly dedne the law
which is to control it, and therewith the theories relied npon
to justify or defeat a recovery ; and when they are techni-
cally framed, if the law be questionable, it may be settled
on demurrer, if not, then ou evidence the case mast turn.
It is very manifest in this case that the plaintiff, being at the
time of theoommeucementof this suit »u»yurw, relied npon
the fact for a recovery, that her biisband had appropriated
her money to his own use, with the knowledge of the de-
fendants that it was here. '
The defense was pnt on two groands : Fint. That Walker,
the guardian, had the right to collect the execution himself,
or that he could legally transfer it to another who might
also collect it, and that the ward's remedy was to look to
him and his bondsmen for payment, if the same were not
acconnted for. Second. That having received the benefit
of the money herself, in the acceptance and use of the sup-
plies, which had been fnrnisbed her for the ranniug uf her
own plantation, gave them an equitable plea against her
right to a recovery.
The court construed the law of the ca«e to be with the
plaintiff, and so ruled the evidence and su uliargod tlic jury.
Our view upon the facts, as shown by tlm record, is that
l.er remedies were twofold : those of a vard, as such, to call
her guardian to account for her estatu in his hands, and
those of a wife, to sue for and recover fruiii a creditor who
receives in payment of his debt money belonging to his
debtor's wife, knowing it to be her separate estate. The
FEBRUARY TERM, 1880. 617
Moore vt. McCown.
plaintiff chotte the latter remedy, and rested her right to
recover upon the groaud that the defendants acquired no
title to the money received. The defendants joined issue
by their pleas, and sought to prove that the money was not
received in payment of a debt of her husband, but one of
her own.
They further offered to prove that although the goods
bought in 1876 were charged to him, yet the quantity sold
to and used on her place was more than the sum received
upon the execution. They proposed to show by additional
proof that credit was refused him ; that he was insolvent ;
that the amount of goods furnished for her use, after her
written assent to the transfer of the execution, was more
than they received upon it, and that these supplies were
used upon her place in making a crop for her benefit. All
the testimony thus offered was ruled out by the judge, and
we think improperly. If she had received value for this
money, and it had gone for the benefit of her estate, it
would be unjust that under any technical rule of law she
should recover it a second time ; it would be wrong, and that
which is wrong is not law.
Judgment reversed.
MOOBB V8. McCoWN.
Whether monthly wages of a painter were liable to garnishment for
medical seryices depended upon the date of such services. If they
were while the act of February 34th, 1875, was of force, the wages
would be liable; otherwise not. That act was not retroactive, so
as to apply to services rendered before its passage.
Garnishment. Contracts. Before Judge Olabk. City
Court of Atlanta. December Term, 1879.
In 1879 Moore sued out a garnishment against McCown,
which was served on the Western. & Atlantic Bailroad.
The afiidavit stated that the amount was due '*for medical
618 SUPREME COURT OF GElORiilA.
Moore «f 4 MeOown.
services rendered prior to February. 7th, 1875, upon a note ;
that he has comtnenced soit thereon," etc.. The garnishee
answered that it owed defendant $94.60 as wages. Defend-
ant made a motion in writing to dismiss the garnishment
on the following grounds :
(I.) Because the money in the hands of the garnishee is
due defendant as monthly wages for painting.
(2.) Because the note sued on twas given in renewal of a
note made by defendant to W. 1^ Sterling on October Ist,
1873, and the consideration of that note was medical ser-
vices rendered by said Sterling in 1869.
(3.) Because the consideration of the note was not board
or provisions, nor medical services rendered between Feb-
ruary 24th, 1876 and February 7th, 1876.
The court granted a rule niai against the plaintiff to show
cause why the garnishment should not be dismissed ; and
upon the return and hearing he dismissed it. [In his cer-
tificate to the bill of exceptions, the presiding judge states
that, in addition to the grounds for dismissal on account of
matters outbide the record, it was also urged that the record
did not show that the medical services were rendered at a
time when defendant's wages would be subject to garnish-
ment therefor.] To the judgment dismissing the garnish-
ment plaintiff excepted.
Hoke Smith ; Jko. L. Ttb, for plaintiff in error.
HuLSET A: McAfee, for defendant.
Warner, Chief Justice.
This was a summons of garnishment founded uj>on a
renewed note given for medical services rendered in 1869.
The defendant made a motion in writing to dismiss it on
the ground, amongst others, that the money in the handA
of the garnishee was due to him for his monthly wagea aa a
laborer for painting, and that the plaintiff's debt was. for
me^igytaervices in the year 1869, and that no part of- il
FEBRUARY TERM, 1880. 619
The Otergia Bailroad and Banking Co. vt. Cox.
was for board, or provisioDs furnished himself or his family,
nor for medical services rendered him or his family between
the 24th day of February, 1875, and the 7th day of Febru-
ary, 1876, for which his daily, weekly or monthly wages
would be subject to garnishment.' To this motion of the
defendant the plaintiff demurred. The court overruled the
demurrer, and dismissed the garnishment; whereupon the
plaintiff excepted.
Wben the contract was made in 1869 the defendant's wages
were not subject to garnishment for medical services. See
Code, §3564, and the contract for the medical services not
having been made whilst the act of 1875 was of force, it is
not embraced within the provisions of that act, but is con-
trolled by the law of force at the time the contract was
made in 1869, and such was the true intent and meaning of
the proviso to the act of 1876, so far as that act is con-
cerned.
Let the judgment of the court below be affirmed.
w _
The Georgia Bailboad and Banking Company vs. Cox.
Where the evidence as to the diligence used by the employees of a rail-
road was conflicting, the presumption of negligence being in all
cases against the company, and the jury find for the plaintiJQt, and
the presiding Judge is satisfied with the verdict, this court will not
interfere.
New trial. Before Judge Spkeb. Newton Superior
Court. September Term, 1879.
Beported in the decision.
Clakk & Pace, for plaintiff in error.
J. J. Floyd ; E. F. Edwards, for defendant.
Jackson, Justice.
This suit was brought by a colored man against the Geor-
gia Bailroad and Banking Company for killing a mule be*
y e4-«9
620 SUPREME COURT OF GEORGIA.
' The Georgia BaUroad and Banking Co. va. Cox.
longing to the plaintiff. The jury found a verdict for the
plaintiff for one hundred dollars and interest. A motion
was made for a new trial on the ground that the verdict
was contrary to the evidence and the principles of equity
and justice, which was overruled and defendant excepted.
If the evidence sustains the verdict, it is not contrary to
the principles of equity and justice, but is legal and right
So that the question is simply this: Is there evidence
enough to support the verdict ?
I3y the Code, section 8033, it is enacted that a railroad
company shall be liable for killing stoek by the running of
their engines and cars, '^ unless the company shall make it
appear that their agents have exercised all reasonable and
ordinary care and diligence — the presumption being in all
cases against the company."
There is no doubt that the mule was killed by the com-
pany's train, and that being so, the law raises the presump-
tion that the agents of the company did not use ordinary
and reasonable care and diligence, and the company must
overcome this legal presumption and take the burden of
making it appear that they did use ordinary care and dili-
gence. Ordinary care and diligence is that the engineer
and fireman shall keep a lookout ahead to see stock on the
track, and to stop the train or try to do so. The fireman
swears that the first he saw of the mule was its head fiying
up, and he was keeping watch ; the engineer, th&t the en-
gine was almost upon the mule when he saw her first — that
she tried to cross the track from behind a hedge-row after
a horse which did cross there, and he was so close upon her
that he could not check up the train ; and both swear that
they were diligent and could not prevent the catastrophe.
On the other hand, two witnesses for the plaintiff swear
that the mule must have got on the track at a crossing some
fifty or seventy yards from the place where she lay dead —
that they were there immediately after the killing — ^that
the track was soft from rain the night before — that the
tracks of the mule showed where she got on and showed
that she was running — ^that there were no signs of the tracks
FEBRUARY TERM, 1880. 621
The GeorgU Bailroa>l and Bankliig Co. w. Cox.
of a horse at all, and none of the mule's having attempted
to cross where she was dead, the track being there on an
embankment six or seven feet high — witness examined for
tracks to see if she got on the track there and fonnd none.
She was lying dead about twenty feet from the hedge-row
where the engineer swore she got on the track, and on the
right of the track on which side the engineer testified that
she came on the track from behind the hedge-row. One
of the witnesses also testified that the horse came home
before the train came along, and shortly after the train
came and the mule was killed. So that the evidence is con-
flicting on the point whether the fireman and engineer were
diligent in looking out for stock on the road ahead of them ;
for they could have seen the mule according to plaintiffs
testimony, if they were, and might possibly have checked
up so that it might have escaped. Possibly, perhaps proba
bly, the verdict should have been that the killing was an
unavoidable accident and therefore for the defendant, but
it is out of the range of possibility that the account given
by the engineer and fireman, and that given by the wit-
nesses for plaintiff of the transaction can both be true.
The presumption being against the company, and the tes-
timony of its agents going to show reasonable diligence,
being in conflict with the account given by other witnesses
of the occurrence, we have no option but to hold that the
presiding judge has not abused his discretion in upholding
the verdict. With the policy of the law and the heaviness
with which it bears on railroad companies, we have nothing
to do; our business is to expound and enforce it as we find
it on the statute books.
Judgznent affirmed.
622 SUPREME COURT OF GEORGIA.
HsAUiMer M. Tb* singer tUannutorlDe Co.
McALuaTEB m. Tbb Sinobb MAtrnPAcruKiNo Cohpant.
1. A plea to a suit on a foreign Judgroeot wliicb appertains wboUj to
matters occurring anterior to Bnch judgment, and wbich. with the
exempli flcatiOD of the record, shows great negligence in failing to
set up such defense to the original actjoo, was properly dismissed
on demurrer; especiallj where the facts pleaded would have con-
stituted DO defense.
2. Since Haj, 1790, the records and judicial proceedings of the courts
of any of the stales are admitted in any other court within the
United States by the attestation of the clerk and the seal of the
court annexed, together with the certificate of the judge that the
attestation is in due form.
B. The verdict is contrary to law in being for seventy-four dollars and
eighty cents more than is authorized by the exemplification of the
record of the foreign judgment; a reversal must therefore be had
unless this amount be written off.
Jiiclginents. Ploadinge. Evidence, Exeuiplification.
New trial. Before Jadj^ Speeb. Rockdale Snperior Court.
August Term, 1879.
Repoi^ unneceesary.
J. ]S. Glenn ; A. M. Relub, fur plaintiff in error.
Clabk & Pace, for defendant.
Crawfokd, Juetice.
Tbie suit was brought upon a foreign judgment rendered
in the circuit court of Alabama, to the October term, 1877,
of Rockdale superior court. To which suit defendant filed
the plea of the general issue ; a special plea nhich went to
the merits of the contract, the bad faitli of ilie plaiutifi and
the fraudulent conduct of ite agents and attorneys anterior
to the jndgment, and a plea of set-off.
On demurrer, the pleas except tlu- general issue were
stricken, and defendant excepted.
Upon the trial the certificate and (i.xcmplificatiuu of the
record from the etate of Alabama were olleriid in evidence,
FEBRUARY TERM, 1880. 623
McAiU«ter w. The Singer Maoofactaring Go.
to the admission of which defendant objected for the want
of the great seal of the state being thereto attached, which
objection was overrnled, and defendant excepted.
The jury found a verdict for the plaintiff, to which find-
ing defendant excepted, because the same was contrary to
law.
1. The first question for our review is as to the judgment
of the court below on the demurrer to defendant's pleas
By his special plea it was alleged that the first note which
was given by the defendant on the 6th day of October,
1874, was obtained by fraud, because he was not then in-
debted as claimed, and, liaving faith in the company, he
gave it. When he gave the f-econd note on the 18th day
of August, 1875, that was also obtained by fraud in this,
that they presented him with an aggregate account of his
indebtedness, and he, having full faith in their honesty, gave
it. He kept no books or memoranda of his dealings with
the plaintiff, but, relying on the company, supposed that it
kept correct books and all proper debits and credits ; has
learned since the bringing of the suit in Alabama that he
was not indebted on a full and fair settlement ; that he was
entitled to credits not allowed him, and by their fraudulent
representations he was deceived into the making of the
note. He alleged further that the judgment was obtained
by fraud in this, that plaintiff's attorney induced him to
believe that suit was brought to force a settlement ; and
that the same would not be pressed until he had full time
to investigate all of his accounts, and to set up his cross
demands which he claimed would defeat plaintiff, and give
him a judgment against the company ; that the judgment
now sued upon was obtained contrary to this express agree-
ment of indefinite continuance that the defendant might
ascertain the true condition of the accounts between him-
self and plaintiff ; that it prevented him from making any
defense; and was continued twice with that view, and
therefore the taking of the said judgment was a fraud upon
defendant. It will be observed that this plea appertains
624 SUPREME COURT OF GEORGIA.
UcAlllitsr n , Tbs SiDgir MinafkolnHng Co.
whollj to matters occurring anterior to the judgment, and
we apprehend, with the record before the preeiding judge
who tried the case in Alabama, would have been stricken
there for ita manifeflt want of legal defense against the
plaintififB demand, a fortiori would it be stricken here»
where the suit was brought upon the judgment. The plea
showed that the first note was given October 6th, 18T4;
the second, August 18th. 1875; that suit was brought
September 29th, 1875 ; the case continued by the plaintiff
at the May term, 1876 ; and by the exemplification of the
record it is shown that at the ^November term, 1876, it wa«
continued by the defendant ; by the plea again, that at the
spring term, 1877, "the defendant saying nothing," judg-
ment was rendered against him.
Thus it will be seen that the judgment was rendered two
years and a half from the giving of the first note, and one
year and eight months from the giving of the second, to
say nothing of the two continuances giving him twelve
months, besides six months before that, in which to plead.
Such negligence would weaken if not destroy a meritorious
defense.
As to the set-off pleaded, it only contained the claims of
the defendant arising out of, and confined to. the Eubject
matter which entered into the consideratioii of the notef
themselves, the giving of which was an admission nn the
part of the payer that the payee was not indebted to him
for any matter or thing appertaining thereto.
2. The second assignment of error is that the certificate
and exemplification of the record from Alabama was not
authenticated by the great seal of the state. Since May,
1790, the records and judicial proceedings of the courts of
any of the sbites are admitted in any other court within the
United States by the attestation of the clerk, and the seal
of the court annexed, together with the certificate of the
judge tliat the attestation is in due form.
3, The third assignment of error is that the verdict of
dMtiBry is contrary to law.
FEBRUARY TERM, 1880, fi25
The Mayor etc., of Grlffln c«. Powell.
Under this gronnd of error we have examined the ex-
emplification of the record accompanying the judgment,
and there find that according to the pleadings of the plain-
tiff as so exemplified, that the verdict which the jury ren-
dered, and of which complaint is here made, is contrary to
law in this, that they have found seventy-fonr dollars and
eighty cents more than is there authorized. By article
four, section one of the constitution of the United States,
we are to give full faith and credit in this state to the
records and judicial proceedings of hvery other state when
the same are brought before us properly authenticated
under the law. We therefore reverse the judgment, unless
the said sum so stated in the record be written off, and then
direct that the same stand affirmed.
Judgment reversed.
The Matob bto., of Griffin vs, Powell.
An ordinance of the city of Qrilfin provided that "no person or per-
gons shall keep s livery or sale stable, or let out horses or mules or
other stock, carriages, buggies or other yehides * * without
first obtaining a license « * * provided, that nothing in this
section shall be so construed as to allow any person to run a dray
for hire." Another section provided that "no person shall run a
dray, cart or other carriage in the city of Griffin for the purpose of
hauling for the public, goods, produce, wares or merchandise of
any description" without a license:
Held, that one who had taken a license as the keeper of a livery stable
might hire out a two-horse wagon by the day for the purpose of
hauling lumber without obtaining a license to run a dray.
License. Laws. Municipal corporations. Before Judge
Buchanan. Spalding Superior Court. August Term, 1879.
Beported in the decision.
J3uNT & Johnson, for plaintiff in error.
Stswabt & Hall, for defendant.
626 SUPREME COURT OF GEORGIA.
The Mayor etc., of OriiBn w. Powell.
Warner, Chief Justice.
It appears from the record that W. H. Powell was cited
to appear before the mayor and conncil of GriflBn, on the
24th day of Septeijfiber, 1878, to show cause why he should
not be dealt with for running a dray without license, in said
city, on the 17th day of September, 1876, and other times
in that year.
On the hearing of said cause, R. F. Stephenson testified
before council, that in the month of April last and several
times since, he had hired from Powell a two-horse wagon
to haul lumber from the depot in said city to witness' place
of business ; that he paid Powell at the rate of four dollars
per day for said wagon, mules and driver; that it was not a
dray but a two-horse wagon ; that the mules were kept in
the livery stable of Powell, and the wagon also ; that the
wagon was not hired to haul by the load, but by the day.
Powell is a livery stable keeper. Stephenson also testified
that Powell knew that he, Stephenson, hired said wagon to
transport lumber in the city.
The ordinance of the city of GriflBn read as follows :
" Be it enacted that no person or persons shall keep a livery or sale
stable, or let out for hire, horses or mules or other stock, carriages,
buggies or other Yehicles, within the corporate limits of the city of
Griffin, without first having obtained a license from the clerk and
treasurer of the city of Griffin, for which he shall pay the sum of forty
dollars.
" Provided, that nothing in this section shall be construed as to allow
any person to run a dray for hire.'*
Section 4th of said ordinance read as follows :
" Be it further enacted that no person shall run a dray, cart or other
carriage in the city of Griffin for the purpose of hauling for the public,
goods, produce, wares or merchandise of any description, whatever,
without first having obtained a license therefor, for which he shall pay
the sum of twenty-five dollars for a one-horse dray, and fifty doUan
for a two-horse dray or carriage.
*' Provided, that this section shall not be so construed as to allow any
^D taking out this license to transport persons to and from, and
' <9 city for hire, and provided farther, that this section ihattbt
FEBRUAEY TERM, 1880. 627
The Mayor etc., of QrifBn tw. Powell.
SO construed as to not allow 'any person or persons who hire a dray
temporarily for the purpose of hauling for themselves or others, to use
the same without license/*
Section 15, imposes a iine in double the amount of the
license for a violation of the above ordinance.
After hearing the above evidence and argument of coun-
sel, an order was passed by the mayor and council of the
city of Griffin, that it appearing that defendant had violated
the said ordinance, an execution should issue against said
Powell for the sum of one hundred dollars, same being
double the amount of the license for running a dray.
Powell sued out a certiora^ and on hearing the same
(the above facts being the case made), the court sustained
the certiorari, and reversed the decision of the mayor and
council, whereupon the defendant excepted.
It was admitted that Powell had a regular license from
the city as a sale and livery stable keeper for that year, and
the question is whether, under the statement of facts dis-
closed in the record, he was liable to the penalty imposed
on him by the city council for running a dray ? Powell,
under his license as the keeper of a " livery or sale ttable,"
had the right, under the ordinance of the city, to let out for
hire, horses, mules or other stock, carriages, buggies or
other vehicles, except a dray, for hire. The word vehicles
would certainly include wagons and possibly drays also,
but for the proviso to the city ordinance. The proviso in
the ordinance used the word " dray " in its common and
popular sense, as contra-distinguished from a wagon in its
common and popular sense — and should be so construed.
Therefore, as Powell did not run a dray for hire, as con-
templated in the proviso to the ordinance, there was no
error in sustaining the cerUorwri.
Let the judgment of the court below be affirmed.
688 SUPREME COURT OF GEORGIA.
BItck n. Paten
Blaok vs. Pstkks.
Tbo county court of Bockdale county being governed by the same
law In reipect to appealB an Juatice courts, an appeal therein must
be entered wUhin four days from the decision. It is not aufflcient
tbat it be within four days from the adjournment of the court at
which the decision was rendered.
Appeals. Coanty Oonrte. Before Jadge Spbbr. Rock-
dale Superior Court. Angnst Term, 1879.
Reported iu the decision.
A. A. ZACHBr ; A. M. Hklhb, for plaintiff in error.
A. C. McOalla, for defendant.
Jaoesos, Jostice.
Thifl wae a suit for the recovery of the price of a fertili-
zer, brought in the connty court of Rockdale by the defend-
ant in error against the plaintiff in error. In the county
court the judgment was for the defendant in that suit, who
is the plaintiff in error here, and au appeal wae taken to the
superior court. When the case was there called, a motion
waa made to dismiss the appeal becaii«t.> nut taken witliiu
four days from the rendition of the JTi(i;:tiiert in the county
court though within four days of the iidjoiiniment of that
court ; and the court overruling the nmtinn to diamiBS the
case was tried and a verdict was rendered tor the plaintiff
for the price of the fertilizer. A motion waa made for a
new trial on variona grounds, and aiuorifr them the over-
ruling the motion to dismiss the appt:al. Should it have
been dismissed i
The county conrt of Rockdale county ia a local conrt,
created speciallr for that county by et^tnti' and dependent
for its powers and the rights of snitoi-R tlierein apon the
statute creating it.
That statute declares " said party may enter an appeal
FEBRUARY TERM, 1880. 629
Black w. Peten.
from such jodgment within four days under the same ruf^
a/ad regulatione now governing m appeals from justice
courts of this stated Acts of 1874, section 6, p. 75.
The Code, section 4157 declares: "either party being
dissatisfied with the judgment of the justice of the peace
or notary public, and upon all confessions of judgment,
provided the amount claimed in said suit is over fifty dol
lars may, as a matter of right, enter an appeal from said
judgment, within four days (exclusive of Sundays) after
the rendition of said judgmenty'^ etc.
The local law creating the county court of Rockdale,
having put that court in respect to appeals therefrom on
the same footing as justice courts as constituted in 1874
when the local law was passed, any party to a case tried
therein who wished to appeal was bound to do so, as in the
justice courts, within four days from the rendition of the
judgment, and not from the adjournment of the court.
The local act contemplated that said county court should
be held and have jurisdiction as a sort of county justice
court. It could be held at any time and place for the trial
of any one case, and the defendant was notified by sum-
mons to be there then, and it does not seem to have been
constituted a court to sit at stated places and times. See
4th section of the act, acts of 1874, p. 74. Its jurisdiction
was to be the same as justices of the peace, except that its
powers ran all over the county. Sec. 111. And the inten-
tion of the legislature was that appeals therefrom should
be within four days from the day the court adjourned, so
far as that case was concerned, that if, from the day final
judgment therein was rendered. Therefore we are of the
opinion that the court erred in not dismissing the appeal,
and inasmuch as this point controls and disposes of the case,
it is unnecessary to consider other points made in the re-
cord.
Judgment reversed.
SUPREME OOUET OF GEORGIA.
Kinatd m. Buiford.
£iNABD va. Sanfokd.
1. A plea of set'Off should state tbe defendaot's demand as dutiacUy
as though he were the plaintiff, and when filed to a suit on a
negotiable instnimeQt, not in the hands of the payee, it must appear
that tbe paper waa received under dishonor, that ibe set-oB grew
out of, or was in some way connected with, the contract sued on,
that there was mutuality of obligation between the original parties
thereto, and that the defendant is the proper party to assert the
2. Whenever aright to recoup exists, it muft be exercised by the party
or portiea who would be authorized to maintain a suit for dunsgei
under tbe contract, or some sufflcii-nt reason be alleged to take it
out of tbe legal rule in such cases.
Pleadings. Set-ofi. Recoupment, Before Jndge Un-
DSBwooD. Floyd Superior Oonrt. September Tena, 1879.
Reported in the decision.
FoBBTTH & Reksb, hj J. H. HosKiMBOK, foF plaintiS ill
error
Haultok Tanokt, by J. Bbamiam, for defendant.
Ceawpobd, Justice.
W. S. Sanford, as bearer, sued M. F. Kinard on a n^|;o-
tiable promissory notevmade by himself and one F. F. Fin-
ley, to which the said Kinard filed pleat' of set-off and re-
conpment against C. L. Webb, who was tiie payee of said
note. To which pleas the plaintifi, Sanford, demurred ;
the demurrer was siietaiDed by the court, and he excepted.
The plea of eet-off, as appears from t)ie record, alleged
that at and before the time the eaid note went into the
hands of tbe said plaintiff, C L. Webb, the payee, was in-
debted to the defendant and Finley in the suiu of one
hundred and seventy-five dollars, which he pleads ae a aei-oS
to plaiDtiffs action.
Tbe plea of reconpment alleged that on the 4th day of
FEBKUARY TERM, 1880. 681
Kixuurdvir. Sanford.
November, 1870, they, the defendant and FinJey, boaght
parts of lots of land 220 and 221, Floyd connty, together
with certain wool-carding and mill machinery, with the
right to enter into possession at once and operate the
machinery, there being a large amonnt of wool in the fac-
tory to be carded, which the said Finley and defendant had
a right to card under the contract, the toll from which was
of the value of $200.00, or other large snm ; but the said
Webb remained in possession of said machinery nntil he
had worked up the material on hand, and the fair average
income of the machinery amonnted to $200.00, or more,
a bond for title being given, and the words, this day posses-
sion given, notes being made for the purchase money, $1,-
800.00, which have been paid, except the amount sued for.
1. The plea of set-off being a cross action brought by
the defendant against the plaintiff, it shoald set out his de-
mand as fully and distinctly as though he were the plaintiff,
and when filed to a suit on a negotiable instrument, not in
the hands of the payee, it must appear by the allegations
that the paper was received under dishonor, and that the
set-off grew out of, or was in some way connected with, the
contract sued upon, as well as a mutuality of obligations
arising out of the contract between the original parties
thereto, and who, in the pending case, can assert it. A set-
off pleaded to a note traded after due, cannot be upon any
muttud deina/nd that defendant had at the commencement
of the suit against the payee, but must be confined to the
contract on which the plaintiff sues.
This plea it will be seen was fatally defective when tested
by the law. A good plea is one that presents a clear and
distinct legal issue without drawing from another, and
must stand or fall by itself.
2. The plea of recoupment, too, is in all cases confined
to the original contract sued upon, and must, like a set-off, be
mutual as to those parties. That is to say, whenever a right
exists to recoup, that right must be exercised by those who
would be authorized to maintain a suit therefor. In
632 SUPREME COURT OF GEORGIA.
Bark m. Boric
this case the original contract was made as alleged be-
tween Webb on one side, and Kinard and Finlejr on the
other, so that if Kinard coald maintain an individual Boit
to recover their joint damages, then in an action against
him alone he might recoup, but without some allegation to
take it out of the legal rule in such cases, he could not
plead it even as against Wobb, if he were the plaintiff.
The plea is otherwise demurrable, the contract is not saf-
ficiently set out, the damages claimed appear to be con-
tingent und speculative, and, as pleaded, if in a suit brought
by both the defendant and Finley, could not be maintained,
to say nothing of the statute of limitations, which appar-
ently bars their right of action. The demurrer should bare
been sustained, and the pleas stricken.
Judgment affirmed.
BuBK vs. BuBK.
A conveyance of one's interest in certain land, "said interest contsin-
ing eighty-three and one third acres, more or leas/' with a general
warranty of title against the claims of all persons, includes in itedf
covenants of a right to sell, of quiet enjoyment, and of freedom
from incumbrances.
Title. Warranty. Covenant. Contracts, Before Judge
MoCuTOHEN. Whitfield Superior Court. October Ad-
journed Term, 1878.
To the report contained in the decision it is only oece»-
sary to add that H. H. Burk sued William Burk on a cove-
nant of warranty against the claims of all persons, contained
in a deed. The breach alleged was that the land had been
received by defendant under his father's will, and was sob-
ject to the payment of certain legacies to other children,
that plaintiff had been compelled to pay out $600.00 to
prevent a sale to satisfy such legacies, that defendant and
another had brought ejectment against him for the land,
FEBRUARY TERM, 1880. 688
Burk tw. Bvrk
and that defendant could not sell to him free from incnm-
branceB. On the iesne formed under this declaration, the
court charged as Bet out in the decision, and defendant ex-
cepted.
Shumate & Wii^iambon; D. A. Walkbb, for plaintiff
in error.
W. K. MooBB, by brief, for defendant.
Waknke, Chief Justice.
This was an action brought by the plaintiff against the
defendant to recover damages for an alleged breach of cov-
enant contained in the following deed executed by the de-
fendant :
^'Georgia, Whitfield County.
"This indenture made 14th day of October, 1868, between William
Burk of the county and state aforesaid, of the one part, and Hugh H.
Burk of the same place, of the other part, witnesseth that the said
William Burk, for and in consideration of the sum of four hundred
dollars to him in hand paid, the receipt whereof is hereby acknowl-
edged, hath granted, bargained, sold and conveyed unto the said Hugh
H. Burk, heirs and assigns, the interest of said William Burk in and
to lots of land, Nos. 295. 296 and 297. in the 11th district and third
section in said county, said interest containing eighty-three and one-
third acres, more or less, to have and to hold said interest unto him the
said Hugh H. Burk, his heirs and assigns forever in fee simple. And
the said W illiam Burk, for himself, his heirs, executors and adminis-
trators, the said bargained premises unto the said Hugh H. Burk, his
heirs and assigns, will warrant and forever defend the right and title
against the claims of all other persons whatever. In testimony where-
of said William Burk hath hereunto set his hand and affixed his seal
>
the day and year above written."
The court charged the jury amongst other things, as fol-
lows: ^^ A general warranty of title against the claims of
all persons includes in itself covenants of a right to sell,
and of quiet enjoyment, and of freedom from incumbran-
ces; that this claim of warranty has a definite and fixed
legal meaning, including in itself the true covenant named
io the section of the Code I have read, one of which is
684 SUPKEME COURT OF GEORGIA.
BurkM.Bark.
that the property sold was free from incnmbranceB, and
this warranty is to be constmed as though it had said in
express terms that there was at the time of the sale no in-
cumbrances on the property sold. In other words, this
warranty amounts to a covenant that there were no incum-
brances on the interest of William Bark in said lands,
which was sold and conveyed by said deed, whatever that
interest was. And if there were at the time of the making
of the deed any incumbrances thereon, and if the evidence
shows that the plaintiff has sustained damages thereby, by
being forced to pay off such incumbrances, this would con-
stitute a breach of the warranty.
^'In the face of this covenant the defendant's counsel
claim that he simply warranted the title to the interest sold,
subject to such incumbrances as might exist thereon, for
this would change the plain meaning of the words used in
the clause of warranty by interpolating an exception con-
trary to and inconsistent with that meaning."
The foregoing charge was given without qualification,
notwithstanding that defendant's counsel had insisted in
argument that all that was sold and conveyed in the deed
was William Burk's residuary interest in said lands under
the will of his father, and that the deed shows a contract
to convey not any specified amount of interest either divi-
ded or undivided, but simply such interest as defendant de-
rived under the will as residuary legatee.
The defendant excepted to this charge of the court, and
alleges the same as error. The jury, under the charge of
the court, found a verdict in favor of the plaintiff for the
sum of $145.25. There was no error in the charge of the
court, as to the legal effect of the warranty contained in the
deed set forth in the record. Code, §2793.
Let the judgment of the court below be affirmed.
«
-w *i
...•:- ^^ . FEBRUA'ilT term; 1880. 635
- i^^ ^ The Central Railraad and BankiDg Co. vg. Roach.
• >
The CENTiaAL Railroad and Banking Company 7*s, Roaoh'.'
m
1. In a suit by a widow against a railroad company for the L-Jmicide of
her husband, who was an engineer in its employment, two things
are necessary to a recovery : First, absence of negligenik 'bn his
part contributing to the occasion or cause of his death ; and second,
negligence on the part of the company or some other agent Of em-
ploye. When it is shown that the deceased was without fault, the
presumption of negligence on the part of the road arises. It may,
however, be rebutted by proof. If neither the company nor the
employes were negligent, there can be no recovery.
2. An engineer having jumped from his engine and been killed, and
the question being whether or not he was without fault, the neces-
sity for Jumping, his ability to jump, and the safety with which he
could do so, are all for the consideration of the jury, and it was
error for the judge to charge that " the fact that he jumped is proof
that he thought jumping the safest course."
8. The court charged as follows : "The pecuniary damages to the
wife from the homicide are to be ascertained by inquiring what would
be a reasonable support, according to the circumstances in life of the
husband as they existed at his death, and as they may be reasonably
expected to exist in view of his character, habits, occupation and
prospects in life ; and when the annual money value of that support
has been found, to give as damages its present worth, according to
the expectation of the life of the deceased, as ascertained by the
mortuary tables of well established reputation :"
Held, that under the facts of this case, the court should hive amplified
this charge, and the attention of the jury should have been called to
the declining years of the deceased and the probable decrease year
by year of his capacity to labor at his calling.
4. In a suit by the wife of an engineer against a railroad company for
his homicide, the jury should consider the age of the deceased and
if old, his consequent incapacity to labor long.
5. As to the negligence of the engineer of the train immediately preced*
ing that on which the deceased was, it does not depend on his inca-
pacity, by reason of fits or otherwise, to properly handle his train,
but on whether, under the facts and circumstances surrounding him
at the time of the injury, he was negligent in stopping at the curve.
Railroads. Damages. Negligence. Master and servant.
Charge of Court. New Trial. Before Judge Fleming.
Chatham Superior Court. May Term, 1879.
To the report contained in the decision, it is only neces-
sary to add the following :
V 64-40
y
«
0
K 636 SUPREME COURT OF GEORGIA.
J
i
The Ceutral Railroad and Baoking Go. tw . Roach.
^ Mrs. Roach sued the compaDy for the homicide of her
uasband.. He was an engineer in the employment of de-
fendant. On the night of January 28th, 1878, three freight
V J trains started from Macon to Savannah, on defendant's road.
^">^'' Roaffli was the engineer on the last train ; one Greenlaw
\ was engineer on the train next in front of him. While
going round a curve, Greenlaw checked the speed of his
engine, and continued to check it for some time, saying he
saw a light in front ; the conductor sent a man back to stop
the rear train, and signaled to Greenlaw to go on, which he
finally did. In the meantime the rear train came up. Roach
seeing the train going with comparative slowness in front
of him, blew on brakes, revei'sed his engine, told another
employe on the engine to jump off, and then jumped him-
self. He was injured so that he died from the effects.
The train ran on and just came in contact with the one in
front before stopping; but the collision was not serious
enough to injure any one on either train. As to the pru-
dence of Roach in jumping, or the apparent necessity for
doing so, and also as to the diligence of the company, the
evidence was somewhat conflicting. There was a good deal
of evidence in regard to Greenlaw's being afflicted with ep-
ileptic fits, and as to whether the company was chargeable
with notice thereof — all of which is immaterial here. Roach
was nearly sixty-one years of age at his death According
to the mortuary tables his expectancy of life was nearly
fourteen years.
The jury found for the plaintiff $5,000.00. Defendant
moved for a new trial, which was refused, and it excepted.
The grounds of error necessary to an understanding of the
decision are as follows :
1. Because the court erred in refn ingto charge the jury
when requested by defendant's counsel, as follows : ^' If the
jury be satisfied that the plaintifiPs husband was himself
wholly without fault or negligence in connection with the
incidents, or any one of them, which directly contributed
to the cause of his death ; and should be further satisfied
'that by no effort of his own could he have avoided the loss
'V
^
FEBRUARY TERM, 1880. 637
The Central Baiiroad and Banking Co. «• Roach.
of his life, but should find, on the other hand, that the
railroad company was not guilty of negligence, or of fail-
ure in the discharge of ordinary duty by the defendant, or
either of its employes, which caused his death, still the
plaintiff cannot recover."
2. Because the court erred in refusing to charge the jury
when requested by defendant's counsel, as follows : '' If the
jury find that the capacity of plaintiff'b husband to spring
from an engine under the circumstances, with safety to him-
self, had been impaired by advanced age, or by any other
cause, it was his duty to take notice of this fact ; and if he
failed to be mindful of it, and thereby incurred a greater
risk than he would have been exposed to had he remained
upon the engine, the plaintiff cannot recover."
[In connection with the refusal to charge as requested by
defendant's counsel, the court charged as follows : '* This
fourth request calls upon me to charge you as law that if
Roach, by pursuing any other course than the one actually
pursued, would or might have saved his life, the plaintiff
cannot recover. To give yon this charge would be virtu-
ally to charge you to find a verdict for defendant, if you
found the fact that if he had remained on tlie engine he
would not have been killed. If this be so. Roach could
not have known it. The fact that he jumped, if you find
that he did jump, is proof that he thought jumping the
safest course. If the fact now appears that another course
was safer, it does not follow that he was in fault for jump-
ing. His obligation was to pursue that course which under
the circumstances was reasonable and proper. * * * *
I think an old man has as much right to jump as a young
m'an, to avoid the consequences of an impending collision."]
8. Because the court erred in charging the jury as fol-
lows, as to the rule ^f damages: '* First determine what
amount per annum you will give the plaintiff; then calcu-
late the present worth of that amount for each year sepa-
rately, add these present worths together and find the aggre
gate amount in solido. This you must do for the number
638 SUPREME COURT OP GEORGIA. /
The Cwihal B«lltc«d M>d BiaMng Co. w. Beach. !•
of years yoa find, under the teetiinoD;, that Roach woold
have lived but for the accident,"
4. Because the coart erred in tliis; That after hifiog
charfi^d the jury in full, and refoeed to give other chirps
as requested, and nfter the jury had retired to their room
for a half hour or more, without any request from the JU17
and against the objection of defendant's connsel, he re-call»l
the jary from their room into the coart and read to cbem
from 38 Oa., 410, as follows; "The pecuniary damai^ to
the wife from the homicide is to be ascertained by inqDirin^
what would be a reasonable support, according to the cir-
cumstances in life of the husband, as they existed at hit
death, and as they may be reasonably expected to exist, in
view of his character, habits, occupation, and proepects in
life; and when the annual money value of that Bnpport
has been fonnd, to give ae damages its present worth, ac-
cording to the expectation of the life of the deceased, w>£
certained by the mortuary tables of well-established repu-
tation,"
[On the last two points the court certified as followe: "1
further certify that the charge as to the rule for eslimsting
damages, given when the jury was recalled, was in the place
and stead of the charge on this point as originally given; I
therefore submit that the originrLl clmr^c is no jiart of ei»
charge to the jury."]
5. Because the damages were e-xceesivi^.
6. Because the verdict was contrary [o luw and evidein*
A. R. Lawton; W. S. BisiNtittE, for plaintiff in oni-r,
cited 50 Ga., 465; .15 16., JS3; 58 /6., 486, 10"; W
Mass.. 412 ; 133 II,., 251 ; A:.i- Law Rev., 1S80, pp. *f*.
303, 304.
R. E. Lrbtbr, for defendant, i^ited Code. ^§3033, 2"^'.
2203,2067; 59 Ga.,441; 3 Gii.ipbdl. fiJt ; 3 Pet.. 181, S
Mot., 1 ; IS N. T., 543 ; Ang. ou Carriers, (4 Ed ) 56i, U■^
407: 8 Cent. L. J., 12; 7 /«., 222 ; 16 How., 4fl9j Ora»
^
FEBRUARY TERM, 1880. 639
The Central iUilxoad and BanidnK Co. v$. Roach.
• ^rd vs, Oa. B, R. (Feb. T., 1879) ; Aug. on Corps. (4 Ed.),
.:>4r<.)-l; 58 6?a.,216; 15 Wallace, 649 ; Code, §§2961, 2972,
l^^so ; 46 N. Y., 23 ; 15 Wal., 649 ; 56 N. Y., 295 ; 7 Me., 202;
14 How., 468; 8hen & Ked. on Neg., 19; 3 Hnrl. & C,
596; 20 Oa., 146 ; 45 lb., 509 ; 56 /i., 588; 58 /J., 485 ;
59 /}., 436 ; 38 /J., 409 ; C. R. R. vs. Richards, (Feb.
T. '79); Sher. & Red. on Neg., §§28, 282.
Jackson, Justice.
Mrs. Roach, the widow of a locomotive engineer on the
Central Railroad, in charge of the engine on one of three
freight trains thereon, running at night, sned the railroad
company for the homicide of her husband ; the jury found
for her $5,000.00 damages, the company made a motion for
a new trial on various grounds, it was overruled on all , and
the company excepted to the judgment overruling its motion.
We think that the motion should have been granted on
some of the grounds thereia stated.
1. The first ground is that the court declined to give in
charge the following request : *' If the jury be satisfied that
the plaintifiPs husband was himself wholly without fault or
negligence in connection with the incidents, or any one of
them^which directly contributed to the cause of his death; and
should be further satisfied that by no effort of his own
could he have avoided the loss of his life, but should find
on the other hand that the company was not guilty of neg-
ligence, or of failure in the discharge of ordinary duty by
the defendant, or either of its employes, which caused his
death, still the plaintiff cannot recover."
Two things are essential to enable the plaintiff to recover.
First, no fault on the part of her husband contributing to
the occasion or cause of his death, and secondly, negligence
or fault in the company, or some other agent or employe
thereof, which did so contribute. The plaintiff's husband
may not have at all been at fault, and yet she cannot re-
oorer unless the company, through other employes, was at
640 SUPREME COURT OF GEORGIA.
The Central BaUroad and Ranking Go. «t. Boadi.
fault. Such a case wonld be an unavoidable accident — with
nobody to blame, and, therefore, no recoverable damage to
anybody. It is trne that the moment the plaintiff's hasband
is shown without fault, the presumption is that the oampany
was at fault through other employes; but this may be rebutted,
and it is for the jury to say whether it is or is not rebutted.
Therefore, it is for them to say on the whole case made by
all the proof that plaintiff's husband is without faalt, and
that the company is at fault ; and they must say that both
things are true, before the plaintiff can recover. The re-
quest is awkwardly worded, but it means that these two
things must concur before there can be a recovery ; and so
understanding it we think that it or its substance should
have been given to the jury. Although something akin to
its substance, as we understand it, was given in the general
charge, yet as the judge told the jury that he declined to
give this, they may have been misled. Code, §§2962, 3036,
3033.
2. In regard to the fault of the plaintiff's husband and the
refusal to charge thereon, as requested in the second ground
of the motion, in relation to his jumping from the engine,
and the remarks of the judge thereon, we think there was
error.
Whilst abstractly speaking an-old man has the right to
jump as well as a young man, yet we hardly think thai the
judge ought to have said to the jury that he had snch a
right, and ^'that the fact that he jumped is proof that he
thought jumping the safest course." Such remarks would
seem to intimate an opinion on the evidence and may have
been so understood. The prudence of juifiping or not
jumping — whether it put the engineer in fault or nol — de-
pends much on his ability to jump, and the safety with
which he could jump, and the imminence of the danger
threatening at the time. All these are matters for the jiuy
to pa«8 upon without intimations from the court, and if
permitted even to be made it is hardly reasonable to aay or
intimate that an old man of sixty yearo of age oooM aaldj
jump where a young man of twenty might do 00 iri& mm
FEBRUARY TERM, 1880. 641
The Ceatnl Railroad and Banking Co. w. Roach.
and safety. Moreover, a passenger might be justifiable in
jumping from a train, when an engineer would not be in
abandoning his engine. The passenger has onlj himself to
care for; the engineer has lives and property of others at
stake. The first is nnttkilled in the running of cars and the
imminence of the danger ; the other should know from ex-
perience of the risk of collisions from the distance between
trains in danger of colliding; and what would be no fault
in the passenger might be grave error in the oiBcer of the
company. All these are mutters for the jury to consider
without let or hindrance or intimations from the bench.
We do not rule that the engineer must never leave his en-
gine ; but he must be sure that an emergency is upon him
— ^imminent and impending — before it can be said that he
is without fault in doing so. In this case had he not left
the engine, he would now be alive; was it prudent in him,
nnder all the facts as an ofiicer — a man of the years he had
attained — with the distance between trains — with the dan-
ger to remain, and the danger to leap — all considered, was
it prudent to risk the leap ? and was he without fault in
doing Bo'i The jury must answer without intimations of
opinion from the court.
3. The measure of damages first given by the court is as
follows: "First determine what amount j^^ annt^m you
will give the plaintiff, then calculate the present worth of
that amount for each year separately, add their present
worths together, and find the aggregate amount in solido.
This you must do for. the number of years you find under
the testimony that Roach would have lived bnt for the ac-
cident."
After the jury had retired, that body was recalled, and
the following charge was given : " The pecuniary damages
to the wife from the homicide are to be ascertained by in-
quiring what would be a reasonable support, according to
the circumstances in life of the husband as they existed at
his death, and as they may be reasonably expected to exist
in view of his character, habits, occupation and prospects
642 SUPREME COURT OF GEORGIA.
The Central Railroad and Banking Co. vs. Roach.
in life, and when the annual money value of that rapport
has been found, to give as damages its present worth, ac-
cording to the expectation of the life of deceased, as ascer-
tained by the mortuary tables of well established reputa-
tion."
The judge certifies that this was in lieu of that previously
given. If 80, it being the rule laid down in 38 Ga., 410,
and the jury being told that this was in lieu of that first
given, it would be clearly wrong, we think, to reverse the
judge for giving in charge the rule prescribed by this court.
Yet in this case the attention of the jury should be called
to the declining years of the plaintiff's husband, and the
apparent decrease year by year of capacity to labor, especi-
ally in his business of a locomotive engineer. It is true that
this idea may be conveyed by the words " prospects in life"
in the rule given in the 38th Ga./ hut in a case where the
plaintiff's husband's capacity to support her is dependent on
his business, which business requires vigor of bone and mus-
cle, and where he was some sixty years old when killed, and
the expectation of life was to run to seventy-three years of
age, and where, therefore, it is hardly reasonable to calcu-
late that he could be similarly employed and equally paid
as to wages, the rule should be expounded and amplified
with some more particularity than merely to read it from
the report of that opinion.
4. We lay the more stress upon this point for the reason
that complaint is made that the damages are excessive. As
the case is to be tried again, we are loth to express an
opinion thereon further than to say that the declining age
of the plaintiff's husband, and consequent incapacity to
labor long as a locomotive engineer, especially on a night
train, and his consequent insecurity to be continued for a
long time in that employment, ought to be weighed and
considered well by the jury. It is the support which he
could have probably made for her for the remainder of his
life — strength and consequent ability all the while decreas-
ing— it is that support only which is the basis on which abe
FEBRUARY TERM, 1880. 643
Akin IV. Peck A Alien.
is entitled to rest a recovery against the company, if their
agents killed him by their neglect when he was without
fault ; and therefore the pith of the case in his prospects to
continue in that or other business and thus make her this
support.
5. In respect to the question of negligence by the com-
pany's agent — the locomotive engineer on the train iu front
of that run by the plaintiffs husband — we think that it
does not depend on the incapacity by the reason of fits or
otherwise of that engineer, but on the fact whether or not
he was negligent that night. If he stopped at that curve
without good reason when he could have gone on, and by
reason of his stopping there without good cause the acci-
dent happened, he was at fault and not reasonably diligent
but negligent, and plaintiff, if he did not himself by his
own fault, by jumping without good reason under all the
circumstances from his place on the engine, contribute to
the injury might recover if hurt, and so may his widow
if he was killed.
The case, we consider on the broad view of it as a whole,
has not been as fully tried and the damages as clearly as-
certained by the jury as should have been done, or rather
as might be done on a new hearing, and therefore a new
trial is awarded.
Judgment reversed.
Akin vs. Pbok & Allen.
Where a levy is made upon the mill, engine, boiler, etc., under an exe-
cution based upon the foreclosure of a saw-mill lien, and a claim
filed, the case thus made must be returned for trial to the county
of the residence of the defendant in^. fa.
Levy and sale. Claim. Lien. Before Judge Simmons.
Polk Superior Court. August Term, 1879.
Beported in the opinion.
644 SUPREME COURT OF GEORGIA.
- _ _ _
AUn vt. Peck^A AUen.
TiDWBLL <fe Thompson, for plaintiff in error.
A. T. Williamson ; Bbotlbs & Jonrs, for defendants.
Crawford, Jastice.
The plaintiff in error foreclosed a lien against L. H. Hall
& Co., whom he alleged to be citizens of the conntv of
Fulton, in this state, as the owners of a certain saw-mill
located in the conntj of Polk, and to whom, assnch owners,
he had fnmished logs amonnting in value to the sum of
$1,074.79. The affidavit for foreclosure was made before
the ordinary of the said county of Polk, who ordered and
adjudged that the clerk of the superior court of said county
should issue execution therefor, to be levied on the said
mill, enfirine, boiler and fixtures.
In obedience to said order the Ji. fa. was issued as
directed, and made returnable to the superior court of the
county of Fulton. A levy was made on the saw-mill, en-
gine, boilers and fixtures, when Peck & Allen filed a claim
thereto, which was returned by the sheriff to the superior
court of the county of Polk, as the proper tribunal for the
trial of the said claim. When the said case came on to be
heard, it was, on motion of claimant's counsel, dismissed for
want of jurisdiction in the said superior court to hear and
determine the same ; and to which ruling and judgment
the plaintiffs in error excepted.
The single question made by this record is whether the
superior court of Polk county had the jurisdiction to hear
and determine the claim which had been returned thereto I
By the constitution of 1877, article vl, section xvl,
paragraph 6, all civil cases excepting those of divorce, titles
to land, joint obligors, joint promissore, copartners, or joint
trespassers residing in different counties, shall be brought
in the county where the defendant resides. The same pro-
vision Ib to be found in the constitution of 1868. Godey
§6198.
FEBRUARY TERM, 1880. 6*5
Lewie et al. vt. AnuBtrong, admloiBtntor.
Thi8 being a suit against L. H. Hall & Co., must be made
returnable to the county of Fulton where they reside, al-
though the foreclosure of the lien may have been legally
made in the county of Polk. 52 Ga., 79. So, too, if a
claim be filed by any person not a party to the said fi.fa.^
to any property levied upon, the same not being real estate,
it must be returned to the same court to which the^./a.
is made returnable, and there tried as other cases of claims.
49 G^a., 596; 52 /J., 79-80.
Judgment affirmed.
Lewis et al. w. Abicstbono, administrator.
1. Where an issue of fact as to the passage of an order is involved
in a motion to enter it nunc pro tune, the court should decide such
issue without the intervention of a jury.
2. An indorser was seeking to be discharged on the ground that the
plaintiff (the holder of the notes) had dismissed his suit on appeal*
after security had been given, thereby increasing the risk of the in-
dorser, etc. The records showed no order of dismissal; he there-
fore moved to enter an order nunc pro tunc, showing dismissal
"upon motion of plaintiffs' counsel." On the hearing he moved
to strike out the words " of plaintiffs'." Held, that there was no
error in refusing to allow the amendment, because with such words
stricken out the order nune pro tune would be pointless.
8. The evidence being conflicting as to the original passage of the
order, this court will not control the discretion of the court below
in refusing to allow its entry nune pro tunc.
Practice in the Superior Court. Principal and security.
Amendment. New trial. Before Judge Crisk Sumter
Superior Court. October Adjourned Term, 1878.
Reported in the decision and head-notes.
8. Hall ; Hawkins & Hawkins, for plaintiffs in error.
N. A. SinrH; Jos. ARnsTBONa; D. A. Yason, for de-
fendant.
646 SUPREME COURT OF GEOKGIA.
Lawla <f al. n>. AimitroDg, tdmlnlMnior.
Wabmbb, Obief Justice.
ThiB was a motion in the court below to enter npoD the
records of the Sumter ioperior conrt a nvnc pro tune
order of the court dismissing the ca^e of Jamee W. Ann-
strong against David Bailey, Columbus W. Hand, makers,
John B. Lewis, indorser, and J. W. C Home, secnrity on
appeal. Lewis had tiled a bill against Armstrong claiming
his discharge from liability to pay the aforesaid debt sned
on as secnrity, upon the ground that Armstrong, by his
counsel in 1869, had voluntarily dismissed his suit pending
on the appeal, which dismissal increased his risk and dis-
charged him. When that bill was before this court at the
August term, 1878, (there being no evidence on the re-
cords of the court that the case had been dismissed) it
was held that the primary evidence of the dismissal of
the case was an entry on the proper docket or on the min-
utes of the court, and that such entry, if omitted at the
right time, might be made nunc pro tunc nnder an order
granted by the court for that purpose, and it was in
pDrsnance of that ruling of this court that the motion to
enter the order of dismissal on the records of the court be-
low was made.
Upon the hearing of that motion to enter the order
of dismissal nuncpro tunc upon the records, the court,
after considering the evidence offered by the respective
parties, refused to grant it, and tilao refused to submit the
question to a jury, or to allow the order to be amended by
striking ont the words " of piaintiSs," whereupon the
movant excepted.
1. 2. Three questions were decided in that case when
it was here before. Tirst, tliat the evidence of an
order dismissing the case must appear on the records of
the oonrt, either by a nunc pro trnc order, or otherwise.
Second, that the dockets, minutes snd records of a court of
record must be kept so as to reprcjient the trno state of
its business, and from them the court, without the aid of a
FEBRUARY TERM, 1880. 647
Lewis et al. vs. Armstrong, Administrator.
jury, must be able to ascertain what cases are pending, and
what are not pending therein. Third, that in order to
discharge the surety, it must be made to appear by com-
petent evidence that the suit was not only dismissed, but
that the dismissal was by the creditor, or by the court at the
creditor's instance. See Armstrong vs. Zewis, 61 Ga.y 680.
It follows, therefore, that under the rulings of this court in
that same case, it was not error in the court below to refuse
to submit the question of the dismissal of the case to a jury,
nor in refusing the amendment proposed to the order by
striking out the words ^' of plaintiff." If the case was not
dismissed by the plaintiff, who was the creditor, or by the
court at his instance, it would not discharge the surety, and
that was the object sought to be obtained by the entry of
the order of dismissal.
3. There was a good deal of evidence on both sides as
to whether the case was dismi-sed by the court in 1869 or
not, which evidence is conflicting, and it is somewhat diffi-
cult to say from that evidence what is the exact truth in
regard to it. The question is not whether if we had been
presiding in the court below, and had charge of its records,
we should have decided differently, but the question for us
to decide as a reviewing court, is whether the judgment of
the court below, having charge of its own records, is with-
out evidence, or is so far unsupported by the evidence as to
make that judgment illegal, and thus authorize this court
to interfere with it, and set it aside on the ground that it is
contrary to law. The court below heard the evidence as
to the dismissal of the case in its own court in view of its
own records, and in view of the lapse of time since 1869,
and decided that the case had not been dismissed, and this
court cannot say, under its repeated rulings heretofore made,
that the judgment of the court below was illegal on the
statement of facts disclosed in the record.
Let the judgment of the court below be affirmed.
SUPREME COtTRT OF GEORGIA.
net oil. CUrk.
Adaus et at. vs. Clabk.
1. A justice of the peace, on a trial before n jury Id his court, may or
m&j Dot give the law in charge to the jury, al bU option. It he
doea ao, aod charges the law correctly, it will aol be ground for a
new trial.
2, The Terdict is tupporteil by the evidence in thia case.
Justice Courts. Verdict. Before Jndge Speeb. Pike
Superior Court. October Tertn, 1879.
Reported in the decision.
S. D. Ibvin ; Jahbb K. Walker, for plaiatiffs in error.
J. A. Htimt, for defendant.
Jaoesoii, Justice.
The suit in the justice court was for twenty-five dollars,
on a note for the hire of a horae for a year for farm work.
The defense was that the horse was worthless, and could
not and did not do the work, but broke down and died
after some three weeks of very inefficient work.
On the trial before the jury, after a charge by the justice
of the peace, the jnry found for defendant, and the plaintiffs
carried the case to the superior court by certiorari on the
ground that the justice of the peace charged the jury at all,
and that the verdict is without evidence and against law.
The certiorari was disinissed and the judgment affirmed,
and error is assignud here therefor.
1. The justice of the peace may or may not give the law
in charge to the jary, at his option. He is not bound to do
80, but to do BO if it pleases him to give the charge, and if '
the law as given in charge be correct, is not error wliich
would demand and necessitate the setting aside of the ver-
dict and the grant of a new trial. 21 &a., 192.
2, The evidence is that the horse did utterly fail — died
in three weeks — must have been diseased when hired, and
it is ample to sustain the verdict.
Judgment affirmed.
FEBRUARY TERM, 1880. 649
The Western & Atlantic Bailioad vs. Main.
The Westbbk & Atlantic Railboad vs. Main.
Where the evidence disclosed that the plaintiff's cow was killed be
tween the signal post erected under §708 of the Code and the cross-
ing, it was not error to charge the provisions of that section as
to checking the speed of the train, adding thereto that the company
would not be liable simply because at the time the injury happened
the train might be running in a manner forbidden by law, but the
failure to comply with the law must operate as a cause of the injury.
Railroads. Roads and bridges. Before Judge Mc-
CuTOHKN. Whitfield Superior Court. October Term, 1879.
Reported in the decision.
Johnson & McCamy, for plaintiff in error.
Shumate & Williamson ; T. R. Jones, for defendant.
Ckawford, Justice.
This case was brought to recover damages for the killing
of two cows by the trains of the plaintiff in error, and upon
the trial of which a verdict was lendered for the plaintiff
below, and the defendant being dissatisfied therewith moved
for a new trial, which was refused, and to reverse that de-
cision the case is brought to this court.
The ground relied upon for a reversal of the judgment
is that the court erred in the following instructions given
to the jury : " Our statute makes it the duty of those in
charge of a railroad train approaching a public road cross-
ing, when the train arrives within four hundred yards
thereof, to check the speed of the train, and to continue to
check the same so that it may be stopped in time, should
any person or thing be crossing the track of the railroad at
such pu lie crossing. This statute applies only to public
road crossings, and not to any trail crossing the railroad, or
other crossing not established by authority of law.
*' Where a statute imposesa duty on a railroad company
650 SUPREME COURT OF GEORGIA.
The Western ft Atlantle BailroMl tv. Mfttn.
in relation to the ranning of its trains, if it violates that
duty and an injury results from such violation, then the
company would be liable foi the damages caused thereby.
You must not misunderstand me here, a railroad company
would not be liable for an injury simply because at the
time the injury happened the train might be running or
handled in a manner forbidden by law. But to make the
company liable iu such case the failure to comply with the
law must operate as a cause of the injury. In other words^
if the injury would not have occurred but for such viola-
tion of law then the company would be liable, otherwise it
would not."
The occasion of this charge touching the requirement of
the statute, was the fact appearing in the evidence that one
of the plain tifiPs cows was killed between the signal posts
and the crossing, but was some two hundred yards from the
latter place, and therefore that the charge was illef2;al be-
cause it was inapplicable to the case.
Railroad companies are entitled to every right given to
them by law, and it is to be enjoyed and exercised by them
to its fullest extent, but if there is a duty coupled with the
enjoyment of this right, then the performance of that datj
is to be as strictly observed as the right is to be enjoyed,
and the courts should give protection to the one and en-
forcement to the other in equal degree. The object of
this staTute was to prevent damage being done to persons
or things at these public crossings, and the means to be nsed
were the blowing of the whistle of the locomotive, and to
check, and keep checking, the speed of the train bO as to
stop in time to prevent any injury being done at those
places. The engineer should not misconceive his duty, nor
neglect any part of it ; he must give the signal of warning,
and besides this, he must check the speed of his train, and
continue to do so until the danger is over.
Why was it error to give this law in charge to the jniyt
Why confine the judge to that law of ordinary care and
reasonable diligence existing at all other points except tkeis
FEBRUARY TERM, 1880. 651
Carter ttal.vt. Gnnn.
cro8eing8? The law governing the running of trains is
co-extensive with its lines, and if there be higher degrees of
diligence, greater caution, unusual alarm signals, and less
speed required at some points than at others, and the testi-
mony shows that the damage complained of was within the
limits of points thus protected, it would be error in the
judge not to give the whole law in charge to the jury. The
charge being in conformity to our view of the law, and the
evidence being ample to sustain the verdict, the judgment
is affirmed.
Judgment affirmed.
Oabtsb et al. vs, Gunn.
Instnimento which recite " that this deed witnesseth that to secure
unto Jno. McK. Guun (naming amount) which I justly owe him, I
have hereby sold and conveyed unto him and his heirs and assigns
at the stipulated price of (naming amount of debt) " certain de-
scribed property, and concluding with habendum and tenendum and
warranty clauses, are not mere mortgages, but. under the act of
1871 , carry title, with right to have reconveyance on payment of
debt.
Jackson, Justice, concurred, holding that such was the law indepen-
dent of the act of 1871.
Title. Deed. Mortgage. Before Judge Wrioht. Ran-
dolph Superior Court. November Term, 1879.
Reported in the decision.
Eennon & Hood; Fielder & Chastain, for plaintiffs in
error.
Jno. T. Clarke & Son, for defendant.
Warner, Chief Justice.
This was an action brought by the plaintiff against the
defendants in the statutory form, to recover the possession
of certain described tracts of land. On the trial of the
V«4-^
652 SUPREME COURT OF GEORGIA.
Carter eiaLm. Gimn.
case the jary found a verdict for the plaintiff. A motion
was made for a new trial on the groanda therein stated,
which was overraied, and the defendants excepted.
The plaintiff offered the following instruments in writing
as evidence of title to the land sued for, which had been
duly probated and recorded :
1767.74. '*CuTHBBBT, Ga., February Ist, 1980.
" On November 1st after date, we promise to pay to Jno. McK. Gunn,
or bearer, seven hundred and sixty-seven dollars and seventy-four cents,
value received, with interest at the rate of twelve per cent, from
maturity until paid.
*'I waive all statutory exemptions that now exist in me, my wife,
children or friends, to prevent the payment of this note.
his
Jno. a. ^ Ca&tkb,
mark.
"Attest: RiCHABD Y. Gabtbb."
H. H. €k>BB,
W. £• Lahdbum.
" Gboboia — Randolph County.
*' This deed witnesseth, that to secure unto John McK. Gunn seven
hundred and sixty-seven dollars and seventy-four cents, which I justly
owe him, I have hereby sold and conveyed unto him and his heirs and
absigns, at the stipulated price of seven hundred and sixty -seven dol-
lars and seventy-four cents, lots of land numbers (68) sixty-eight and
(84) eighty-four, containing each, say two hundred and two acres,
more or less, making amount of land sold to said Gunn, say ftmr hun-
dred and four acres; both of said lots of land are contained in the sixth
district, said county, said state, and numbered as above-mentioned,
with all the members and appurtenances thereunto belonging. To
have and to hold unto him and his heirs forever. The Utle to which
property I warrant and will forever defend.
Witness ray hand and seal this a6th day of February, 1875.
Signed, sealed and delivered before
his
H. H. Cobb, Jno. A. X Cabtbr,
W. £. Landbum. mark.
Richabo V. Cabtbb."
$400.00. " CuTHBBBT, Ga., February 4th, 1878.
" On November 1st after date, I promise to pay to the order of John
McK. Gunn, four hundred dollarS| with interest at ten per cent, after
maturity,
Jko. a. Oabtbb,
RiOHABD y. CaBTBB.**
FEBRUABY TERM, 1880. 653
Carter st al. w. Onnn.
" GsoBGiA—Randolph County.
"This deed witnesBeth, that to secure unto John McK. Ounn four
hundred dollars, which I Justly owe him, I have hereby sold and con-
veyed unto him and his heirs and assigns at the stipulated price of four
hundred dollars, three mules, as follows: Aleck, a black horse mule;
Julia, a bay mare mule, and Beck, a mouse-colored mare mule; also
the following lot of land, number (85) eighty-five, in the sixth district
of Randolph county, state of Qeorgia; also my entire interest in my
cotton crop that I am now preparing to make during the present year,
with all the rights, members and Appurtenances thereunto belonging.
To have and to hold unto him and his heirs forever; the title to which
property I warrant and will forever defend.
** Witness my hand and seal, this 4th day of February, 1873.
Signed, sealed and delivered before
Jno. a. Carter, [seal.]
R B. Philufs, R. V. Carter, [seal.]"
B. F. Cobb.
The main controlling question in this case is whether the
foregoing written instruments are to be construed as deeds
conveying the title to the land therein described, from the
grantors to the grantee, or whether the same shall be held
to be mortgages only. Prior to the passage of the act of
1871, these instruments, according to the rulings of this
court, would have been considered mortgages only. Since
the passage of that act such instruments are to be construed
as deeds vesting the title to the land conveyed in the
grantee as security for the debts until the same are paid,
and not as mortgages, the grantors having the right to have
the land reconveyed to them on the payment of the debts
for which the deeds were given to secure. (See acts 1 871,
page 44.) The question raised by the plaintiffs in error as to
the legal effect of the two instruments set forth in the re-
cord, is not now an open question in this court. See 54
Ga.y 45; 55 lb., 383, 650 and 691; 60 lb., 588, and 61
lb., 398.
Let the judgment of the court below be affirmed.
Jaokson, Justice, concurring.
In my judgment this case does not rest on the act of
1871, Code, §1969, but ia independent of that act, and not
654 SUPREME COURT OF GEORUlA.
Carter ^ oi. w. Oman.
at all controlled by it. The case in 54 Oa.^ 45, constrned
an equitable mortgage to be a conveyance that passed title,
and on which there conld be recovery in ejectment, in-
defensible, too, except by paying np the debt to secure
which it was made, and by filing an equitable plea to that
effect, and that case rested on the construction of a convey-
ance made in 186S, and which could not have been affected
by the act of 1871, enacted three years thereafter. The
subsequent cases cited by the chief justice followed that
leading case, until it has now become settled that a debtor
may convey the absolute title to land, on which the creditor
may recover in ejectment, where the consideration of the
conveyance is solely to secure a debt, and cannot be
forced into equity proper to foreclose the conveyance as an
equitable mortgage. The defendant having passed the legal
title, and having nothing but an equity, must himself file
his equitable plea and pay the debt or give up possession of
the land, according to his bargain. The only cases where
the mortgagee must foreclose, in order to have his debt
paid, are those which arise upon statutory mortgages, regu-
larly executed and recorded as such. In all cases where
the aid of equity has to be invoked to turn a deed, absolute
on its face, into a mortgage, that absolute deed gives such
title as will eject the maker by action of ejectment at law,
unless he do equity by paying the debt he agreed to pay,
and to secure which he gave the legal title.
And, as I understand the principle applied in those cases,
it is wholly immaterial to insure a recovery in ejectment,
whether the act of 1871 be followed or not; whether bond
to reconvey be given or not, or the wife's assent be had or
not, these two conditions being prescribed by that act ; it is
enough if the debtor, in order to secure the creditor, actually
passed the legal title to the creditor; in that event the
creditor can recover in injectment, unless the debtor shall
file his equitable plea that he has paid the debt, and on the
hearing shall prove that he has paid it.
It may be troublesome to reconcile the ruling in 54 Cfa^
45, and subsequently, with some former decisions of thk
FEBRUARY TERM, 1880. «65
If cBrlde, admliiistntor, m Hunter.
conrt ; bat I cannot Bee how the act of 1871 can be invoked
to reconcile thera, except in cases to which that act applies
and where it is followed ; that is to say, where the bond to
reconvey has been given, and the wife's consent be had,
if there be a wife. See, also, West vs. Bennett, 59 Oa., 507.
I concur, therefore, in the jndginent, bnt not in the refer-
ence to the act of 1871, as having changed at all the
character of these conveyances sued on in this case.
We all agree, however, that it is now settled law that the
legal title may pass to secure a debt without following the
act of 1871, and in every case where it clearly appears that
the security required and granted was not a statutory
mortgage merely, bnt the actual and absolute title to the
land passed, and was intended to pass, the debtor must pay
the debt or give up the possession of the land. And why
should it not be so, if he made a contract that it should
be so?
Considering that such was the contract made in this case,
and that the debtor has not complied with it, and paid the
debt, I concur in the judgment which evicted him from the
lands he had sold and conveyed absolutely to the creditor
in order to secure the debt.
MoBridb, administrator, vs. Huntbr.
1. A payment and entry thereof on a note by the principal does not
prevent the bar of the statute of limitations from attaching in favor
•f his security. Nor can the administrator of one who signed a
note only as security, relieve it from the bar of the statute so far as
primary creditors may be affected thereby. Bspecially is this the
case where the note was barred before the death of the security.
8. Where certain creditors of an estate by note received payments
thereon and agreed to release the administrator from personal liabil-
ity on account of a previous improper payment of a note barred by
the statute of limitations, in a subsequent suit by a creditor by ac-
count against the administrator, such notes were not admissible to
show outstanding debts of higher dignity than plaintiff's.
(««>>^Aocottnts of no grsater dignity than plaintiff's, which the admin-
656 SUPREME COURT OF GEORGIA.
McBride, administrator, vt, Hnntar.
istrator had paid in full, were not admissible to show a full admin-
istration of the estate, nothing having been paid to plaintiff.
8. Where an administrator had not made annual returns, and no order
had been granted allowing him commissions, he was not entitled
thereto on an issue of plens admiiuttraffit,
4. The plaintiff in error does not show error. In strictness he is not
entitled to except, having conjMnted to the entering of a verdict
against him, even though he may have reserved the right
'Evidence. Principal and security. Administratore and
executors. Verdict. Practice in the Superior Court.
Practice in the Supreme Court. Before Judge Johnson.
Jefferson Superior Court. November Adjourned Term,
1879.
To the report contained in the decision, it is only neces-
sary to add that the defendant moved for a new trial on the
following grounds :
(1.) Because the court erred in holding that the note
made by Thomas A. McBride, principal, and R. B. McBride,
security, was barred as against the security by the statute
of limitations when the payment was made thereon by de-
fendant, and in ruling out said note and the receipt for
said payment as evidence before the jury.
('2.) Because the court erred in ruling, as follows : De-
fendant by his counsel offered in evidence to* the jury his
return and vouchers, and the original notes upon which he
had made payments, when counsel for plaintiff objected to
their admission as evidence to the jury, which objection
was sustained by the court as to accounts not of preferred
dignity (the defendant having testified that at the time of
hia decedent's death there were outstanding notes against
him sufficient to absorb all the assets of his estate) — the
court holding that the payment by defendant of a portion
of said accounts against said estate was an act of mal-
administration which inured to the benefit of plaintiff and
other account creditors, and that the amount so paid oii ac-
counts by defendant is a fund still in his hands for adminis-
tration, and which should be divided j^ro rata by defendant
FEBRUARY TERM, 1880. 667
McBride. admtalatntor, rt. Hanter.
(8.) Because the court erred in ruling that it would not
allow defendant his commissions, and that he must be made
liable for them.
(4.) Because the court erred in ruling that the account
of Bothwell & Brother could not be admitted to share pro
rata in the funds paid on accounts.
(5.) Because the verdict was contrary to law and evi-
dence.
The motion was overruled, and defendant excepted.
R W, Cabswbll, for plaintiff in error.
Edwabd Huntbb, by brief, for defendant.
Jaokson, Justice.
This case came before the superior court on an appeal
from the county court, when the jury, under the charge of
the presiding judge, returned a verdict for the plaintiff for
the amount of the account sued on. The defendant was
sued as administrator of his father's estate on an account
against the decedent in his lifetime, and the parties went
to trial on the issue made by the plea of pletie adrnmistra-
vit filed by the defendant ; and the motion for a new trial
is grounded on complaints made in respect to the rulings of
the court.
The following summary of the facts and rulings of the
court made by the counsel for the defendant in error when
compared with the record of the cause are found to be sub-
stantially correct, and cover the points made in the motion
for a new trial :
Thomas A. McBride, administrator, on March 10th, 1876,
paid A. R. Boberts $157.19 on a note of which the follow-
ing is a copy. See voucher No. 26.
" One day after date we or either of us promise to pay to A. R.
Roberts, the sum of two hundred and thirty-two dollars for value re-
received.
January Ist. 1806. T. A. McBRros,
R. B. MoBhipb, SeeurUy:*
668 SUPREME COURT OF GEORGIA.
McBifdc, admintotnitor, t«. HnntOT.
Credit. "Received on the within note $61.09 by Accoant from
Samuel J. Qordan, administrator of T. A. McBride, deceased. Janu-
ary 1st, 1872. A. R RoBBBTS."
A. R. EobertB gave the following receipt, to- wit :
" Received of T. A. McBride, administrator of estate of R. B. Mc-
Bride, deceased, one hundred and flfty-seven dollars, nineteen and
three-fifths cents on the original note of which the above is a copy,
and said administrator is hereby acquitted of all personal liability to
me on account of said demand against said estate. This March 10th,
1876. Gabswsll & DEKirr,
AtiameyiforA. B, BoberU."
When plaintiff in error offered this note and receipt in ev-
idence, the defendant in error objected to them on the
ground that the note was barred by the statute of limita-
tions and the administrator had no right to make the pay-
ment. The court sustained the objection and ruled out the
evidence, when plaintiff in error excepted.
The plaintiff in error offered in evidence the following
notes and receipts, to- wit :
Voucher No. 22. " One day after date I promise to pay to James
Gordan, or bearer, the sum of four hundred and twenty -three dollars
and thirteen cents for value received. This Ist day of Januazy,
1872. R. B. McBridk."
Credit. *'Paid on within note one hundred and forty dollara. Jan-
uary Ist, 1876."
Receipt. *' Received of T. A. McBride, administrator of R B. Kc-
Bride, deceased, two hundred and forty-six dollars, eighty-two and
three-fifths cents on the original note of which the above is a copy,
and said administrator is hereby acquitted of all personal liability to
me on account of said demand against said estate. This March 9th,
1876. Jambs Gobdak."
Voucher No. 27.
"AuausTA, Ga.. February 20th, 1873.
'* $225.00. On the first day of January next I promise to pay Both-
well Brothers, or order, two hundred and twenty-five dollars for value
received. R. B. MoBbiob*"
" LoTTiaviLLB, Ga., March Idth, 1876.
''Received of T. A. McBride. administrator of the estate of R.B.
McBride, one hundred and eighteen dollars and six cents on the ori|^
inal note of which the above is a copy, and the said T. A. McBride is
hereby acquUUd.peraonally and as administrator of all liability to
FEBRUART TERM, 1880. 669
McBrid«, •dminlilntor, ««. Hunter.
on account of said demand against said estate, so far as any and all
assets which are now, or may have heretofore, passed ioto his hands,
reserving to ourselves, however, the right to recover the balance that
may be due on said note, and the account that we hold against said es-
tate, from any assets of said estate that may hereafter pass into his
hands, or to which said estate may be entitled by reason of the rever-
sionary interest in the widow's dower.
TflOMASB. BOTHWBLL,
Atiameyfar BoihtoeS Brothers.**
Voucher No. 29.
" On or before the first day of November next, I promise to pay to
F. A. Sinquefield & Co., or order, two hundred and fifty-six dollars
and sixty-four cents, for value received. April ITth, 1874.
R. B. McBridb."
"Received on within note, October 23d, 1S74, twenty-six dollars."
'* Received en the within note sixty-seven dollar and six cents.
December 10th, 1874.''
"Received of T. A. McBride, administrator of R. B. McBride, de-
ceased, thirty-nine doUai's and seventeen cents on the original note of
which the above is a copy ; and said administrator is hereby acquitted
of all personal liability to me on account of said demand against said
estate. March 10th, 1876. F. A. Sinqubfislix."
Voucher No. 80.
" One day after date I promise to pay to Sarah A. Mountain two
hundred and eighty- eight dollars for value received. January Ist,
1861. R. B. MoBbidb."
Credit. " Paid on within note one hundred dollars. February 15th,
1870."
" Received of T. A. McBride, administrator of R. B. McBride, de-
ceased, one hundred and nineteen dollars and forty-seven cents on
the original note of which the above is a copy; and said administra-
tor is hereby acquitted of all personal liability to me on account of
said demand against said estate. March 10th, 1876.
8. A. MouHTAnr."
The defendant in error objected to the admission of these
notes in evidence to show outstanding notes against said es-.
tate, on the gronnd that said note creditors were estopped
by their receipts to the administrator, so far as other bona
fidt creditors were concerned. The court sustained the ob-
jection and the plaintiff in error excepted.
The plaintiff in error offered the following vouchers for
money paid by him on accounts not of preferred dignity,
to-Wit;
SUPREME COTTRT OF GEORGIA.
L. E. Wood A Co., No. U,. $ « 01
J. H. Wilkins, No. 16, 906 «
W. H. Fay, No. 16, 9 50
Hopkins & Little, No. 17, 9 10
0. H. Harrell (exclusive of coffin), No. 19, . . . 30 35
Bothwell Brothers, No. 20 10 00
Defendant in error objepted to the above Tonchen (ex-
cept as to $118.60 of No. 15, amoant of cotton of negro
man, as explained b; admtnietrator) od the gronnd ttiit
they were not legal voachers as against bid account, it be-
ing of equal dignity with them and entitled to proraU mtii
them in the payments on acconntB. The conrt snstaiiied
the objection .and plaintiff in error excepted.
The administrator qualified in the winter of 1874. Hii
first and only retnm was filed in the ordiaary'e office No-
vember 13, 1877. This retnm was never approved by the
ordinary, nor bad the ordinary passed an order allowing the
administrator his commissions. Therefore defendant in
error objected to the items of commissions in the adcoinii-
trator's retoro going in evidence. The conrt sustained the
objection and plaintiff in error excepted.
The administrator proved an ontatanding note againat
the estate for abent $30.00, in favor of J. A. Leaptrot, who
had not given the administrator a release.
Plaintiff in error offered in evidence an unpaid acconni
against the estate in favor of Bothwell Brothers for $liO.O0,
and claimed it shoald be allowed toprorate with acconntof
defendant in error. The defendant in error objected on
the ground that Bothwell Brothers were egtopped by theif
release to the administrator in voiiclier No. 37. The conrt
sustained the objection, and plaintiif in error eKcep\fA.
The total amonnt of money received by the administn-
tor, as shown by his retnm, was $2,MS'2,39 ; amount l^tW
expended, $1,635.80; balance on )iitnd for distribution,
$446.59. Under the ruling of thf; ooiirt plaintiff in error
consented to give a verdict for tlio amonnt of claim of
defendant in error,
1. There was no error in raliog out the Roberts' note«
FEBKUART TERM, 1880. 661
McBride, afdminiftntor, vb. Hunter.
barred by the statute of limitations. The defendant's in-
testate was the surety thereon, and it was barred unless re-
vived by the receipt from the principal thereon. This did
not put new life in it as against the surety. Code, §§2157,
2938 ; 30 Ga., 479 ; 32 (?«., 28. Nor do we think that the
administrator can at his option relieve a note from the bar
of the statute under section 2^42, when the note is only
signed as security, so far as primary creditors may be
affected thereby. It would be unjust to those creditors, if
not strictly an unjust debt itself. Besides, it appears to
have been barred in the lifetime of the intestate, unless the
receipt from the principal kept it alive, which, under the
sections of the Code and 30 and 32 Ga.^ stypray that receipt
could not do.
2. The court was right to rule as to the notes which the
administrator had paid that they could not be preferred to
the plaintiff 's account sued on, because of the receipt given
by these creditors whereby they had released the administra-
tor from all liability on account of his illegal conduct in
paying a note barred by the statute and on which the intes-
tate was only surety, and open accounts in full, of equal
dignity with plaintiff's claim and not preferred thereto,
and inferior to their notes. So too in reference to accounts
which were paid by the administrator in full, while the
plaintiff's account was paid nothing.
3. The administrator was not entitled to commissions.
The ordinary had not allowed him commissions and he had
not made regular returns. Section 2596 of the Code set-
tles the point. 60 Ga,j 816 is also directly in point. He
made but one return and no commissions were allowed by
any order of the ordinary.
4. The plaintiff in error does not show error. The bur-
den is on him to do so. Besides he consented, it seems to
the verdict, and has no right in strictness to a writ of error.
His consent would conclude him, perhaps, if he had even
reserved the right to except. See Jones vs. Mobile <&
Girard Railroad^ last term.
Judgment affirmed.
662 SUPREME COTTRT OF GEORGIA.
CUrk w. Ousid/, admlniatntor.
Clabk vs. Cassidy, administrator.
1. Two verdicts finding proofs to authorize a total divorce, with no
decree thereon, as ruled when this case was here before, 02 Oa.^
407, do not render the parties thereto competent to enter into another
contract of marriage.
2. The proceedings of courts of record are to be ascertained from the
minutes kept by the clerks thereof, signed and approved bj the
judge. Parol evidence is therefore inadmissible to establish that a
certain decree was rendered when collaterally in question in the
court of its rendition ; much more so in another and different tri-
bunal.
8. The act of 1868 providing that in all cases where a divorce a vituuU
fnatrimonii has been pronounced, and by decree only one of the
parties is authorized to marry again, and the other party has never-
theless married, such contracts shall be legal, can have no applica-
bility to this case, whether constitutional or not, on account of the
absence of the decree above referr^ to.
4. Since 1864, to render a marriage valid in this state, it is not neces-
sary that license should be granted, or the banns of the marriage
published ; if the other mode is adopted, the factum of such mar-
riage must be clearly established, that is to say, that act by which
a man and woman unite for life, with mutual intent to observe to-
wards society and each other those duties which result from the
relation of husband and wife, coupled with cohabitation and the
performance of those duties, precisely as they would be fulfilled if
solemnized und^r the other forms of marriage.
5. In charging as to the burden of preof, the court should state what
testimony would shift the onus rather than when it would be changed.
The latter would intimate an opinion on the sufflciencj of the proof,
whilst the former w^ould simply instruct as to what evidence, when
submitted, would be sufficient.
6. Where more than one plea was filed, and the verdict fails to disclose
upon which it was based, the jury should be remanded to their room
to fix that fact, if counsel so request or the pleas are contradictory.
As the pleas in this case set up various defenses, the omission of the
court to instruct upon this point justifies the grant of a new trial.
Divorce. Decree. Judgments. Evidence. Hasband
and wife. Marria^. Contracts. Charge of Court. Plead-
ings. Verdict. Practice in the City Coart. Before Jad|^
Habdbn. City Court of Savannah. November T«mi|
1879.
FEBRUARY TERM, 1880. 663
Clark w. CMaldy, adminlBtrator. |L
Beported in the opinion.
R. R. BiOHABDB, for plaintiff in error.
A. P. & S. B. Adams, for defendant.
Cbawfobd, Justice.
A woman who was living with Charles Clark, the plain-
tiff in error, died, leaving personal property said to be in her
own right, and of which he took possession. Cassidy, the
defendant in error, who had intermarried with a niece of
this woman, by virtue of his wife's relationship, applied
for and obtained letters of administration upon the estate
of the deceased, and then brought an action of trover
against Clark to recover the property for distribution. The
defendant pleaded the general isstie^ that the property sued
for was the defendant's, that the property sued for was not
the plaintifPs nor that of his intestate; that the plaintiff
was not administrator upon the intestate's estate ; that for
more than four years defendant has been in possession of
the property under a claim of right, and that if plaintiff
had cause of action the same was barred.
Upon the trial of the case the jury returned a verdict for
the defendant. A new trial was moved for by the plaintiff
on numerous grounds named in the record, which was
granted by the court, and the defendant excepted. The
defendant also requested the court to give certain charges,
submitted in writmg, to the jury, which were refused, and
said refusal has herewith been assigned as error.
We propose to deal with the questions made by this record
BO as to settle all the points of law arising therein as far as
the same may be practicable.
The theory of the plaintiff below was that the woman
Mary C. Shaffer or Clark^ was an unmarried female, and
that at her death her property descended to, and was inher-
ited by, Mrs. Cassidy, the wife of the administrator. The
theory of the defense was, that she was the wife of Charles
SUPREME COURT OF OEORGIA.
fl Clark (w. Cualdr, ■dminiKnlor.
Clark, the defenOant, and that being hi§ wife he inherited
from her all her estate. The iasne beiofi tbns made ap, the
plaintiff sought to sbow that Clark and hereelf were living
in a state of illicit intercourse, whilst the dtsfmidaiu endea-
vored to prove that she was his lawfol wife, not by the re-
cords of the court of ordinary, but by showing an informal
marriage as recognized under the statute laws of Georgia,
that is to say, ability to contract, aotaaily contracting, and
the consummation of that contract. To this the plaintiff
replied, incompetency upon the part of the woman by rea-
son of a former marriage with one John A. Shaffer, who
was still in life, to which it was rejoined a divorce a vinculo
inatj^nonii bad been decreed.
t. ITnder the investigation made necessary to establish
competency on the part of Mary C. Shaffer a qncBtioQ of
law arose as to the legal effect of two verdicts tiiidin^r suffi-
cient proofs tn anthorize a total divorce, but upon which no
decree carrying out and perfecting the same could im pro-
duced. It was ruled when this same case was before us,
February Term, 1879, that such decree was nece^^ary to
give effect to such verdicts, which rnlinj; we now re-affirm,
and hold that without it the bonds of matrimony were not
legally dissolved.
2. Upon failnre to find a record of such decree its ab-
sence was allowed to be supplied by the introduction of
parol proof. This testimony having been admitted, it
formed the basis of part of the instrnctione given to the
jury and is relied upon as one of the gronnds for a new
trial.
The proceedings of courts of record are to be ascertained
from the minates kept by the clerks thereof, signed and
approved by the judge; and by the recording of all mat-
ters judicially considered, and disposed of by the order or
judgment of the court. Whatever, therefore, of jndjrmente
or decrees of courts of record which do not legally aj'pear
do not legally exist. Hence, in this case the admission <>f
parol testimony to establish a decree was illegal and should
« <
FEBRUARY TERM, 1880. 666
Clark vs. CaBiidy. admfaiiBtntor.
have been excluded. This would be the ruf^n courts
where the trial was pending in the same court -m which the
decree was claimed to have been rendered, and with stron-
ger reason should it be rejected in another and different
tribunal, as was the case here. Whilst this error would of
itself be sufficient to authorize the affirmance of the grant
of a new trial, there remain other points upon which the
ruling of this court is made necessary.
8. In direct connection with the question just disposed
of, comes the inquiry as to the legal effect of the act of
1868^ which provides that in all cases where a divorce a vin-
culo moit/rvmonvi has been pronounced, and by a decree of the
court only one of the parties is authorized to marry again, and
the other party has nevertheless married, all such as have
occurred before the adoption of the constitution of 1S68,
are legalized and the parties thereto relieved of all pains
and penalties.
The constitutionality of this act is denied, upon the
ground that it is an interference by the legislature with the
judicial powers exclusively conferred upon the courts.
However this may be, the want of any such decree in the
case at bar, makes it unnecessary to declare what was the
legislative right upon this subject. The party upon whose
rights and disabilities we are passing, not falling within the
class of persons named, no one can claim a benefit under
its provisions even admitting its constitutionality.
The question of the marriage between the deceased and
John A. Shaffer was a question of fact to be ascertained by
proofs ; if found to be so, then no subsequent marriage could
legally take place between heruelf and Clark, during the
life of Shaffer, unless a divorce was granted her, or him
with the removal of her disabilities. It is therefore wholly
immaterial, in the absence of such proofs, to inquire whether
there was a contract of marriage per verba de futv/ro^ or
per verba de preeentiy for the want of ability to contract
the marriage precludes its possibility either by license, the
publicatipa of banns^ or actual consummated contract.
866 SUPREME COURT OF GEORGIA.
oUrk w. CMsidy, admlnUtntor.
But ilnv/tdhoiild be found that there was no. marriage be-
tween therll^ V)r if there were and she was relieved 'from
that tie, then her subsequent marriage was a subject matter
of proof, and . the questions would be, ability to contract,
an actual contract, and a legal consummation thereof. ^
such investigation the evidence should show that both par-
ties were free to make the contract and that they did eo.
Since 1864, to render a marriage valid in this etate, it '^
not necessary that license should be granted, or the banns
of the marriage published in a neighboring church, but if
the other mode is adopted, and it ever becomes a matter of
proof, the fdotum of such marriage must be dearly estab-
lished, that is to say, that €U>t by which a man and woman
unite for life, with mutual intent to observe towards society
and each other those duties which result from the relation
of husband and wife, and actually enter upon and f al^
those duties precisely as they would be fulfilled if solemn*
ized under the other forms of marriage. In the ascertaiO'
ment of the truth as to such marriages, the jury should be
well satisfied that all the elements named in such marnVi/?^
actually existed, and that it was not merely an illicit an<I
adulterous cohabitation. It was contended on the argQ'
ment that where parties live together as husband and wif^v
that the law presumes their relations legal. The law pre-
sumes that every man performs all his legal and social duties*
and that he is innocent of any violation of the penal laws
of the land. But marriage arises and exists in contraet)
and it needs to be proved, as other civil contracts where
property rights are involved and dependent upon it. This
rule is relaxed and presumptions do arise in favor of mar-
riage where parties have lived together in such apparent
relation, and after a great lapse of time the oflEspriug ther(^
of are likely to be bastardized. If, however, it should be
shown that such relations had their origin in illicit inte^
course, no such presumption arises, and to show that it wis
not oi>ntinnous requires proof of actual marriage, as before
defined.
FEBRUARY TERM, 1880. 667
Clark w. CaBsfdj, administrator.
5. CoaDsel for plaintiff in error complaine that thie judge
did- not instruct the jary as to such testimony as would be
sufficient to shift the onus of proof. This case, like most
others, as presented at different times, put the burden of
proof upon the one, and then upon the other of the parties.
The burden generally lies on the party who asserts or af-
firms a fact, and sonoetimes a negative affirmation is essen-
tial, and when it is so, the proof of such negative rests on
the party affirming it. The judge must always decide what
amount of evidence will change the anus and put the bur-
den of proof upon the other side ; this however is to be
done in such way as not to indicate what has or has not been
proved, or to give any expression as to the weight thereof.
The objections made seem to be that the judge did not in-
struct the jury when the burden was changed, rather than
what would be sufficient. The one would intimate an opin-
ion m to^the sufficiency of the evidence, whilst the other
would instruct as to what evidence, when submitted, would
be sufficient.
6. The grounds upon which the court granted a new trial
were quite sufficient to have authorized it. Under §3560
of the Code requiring verdicts for the defendant to specify
under which plea, if there be more than one, that the same
was rendered is imperative, and if the jury find alone upon
one, it should so appear ; if upon all, it should also appear.
Upon a failure so to find they should be remanded to their
room to show on what pleas, at the request of counsel, or
where the verdict cannot be general on account of the pleas
being contradictory, or where they have been misdirected
as to their finding. The pleas in this case setting up vari-
ous defenses, and the omission of the court to instruct,
justifies the judge in his grant of a new trial, and particu-
larly so when he has, as he says, upon other and very mate-
rial questions gone further than is warranted by law, and in
which, by our judgment herein set out, we have concurred.
Judgment affirmed.
V04-4S
668 SUPREME COURT OF GEORGIA,
Poanda w. HaoMm.
Pounds vs. Hansok.
1. On Ociober 14th, 1879, counsel for both parties to a motion for hew
trial in Pike superior court, signed the following agreement: " We
agree that the within is a correct brief of the oral evidence submit-
ted to the court and jury on the trial of the above stated case, and
consent that we use the original interrogatories on the hearing of
the motion for 'new trial ; also consent that the original indictment
and warrant for assault with intent to murder against John H.
Pounds, used in evidence on the trial, be used without attaching
copies of the same hereto." On October 16th the judecesi^ed a
certificate in these words: ** Within brief of evidence approved,**
and the evidence so approved was filed the same day. The motion
was overruled December 8th, at Griflin. In the record, and inter-
spersed with the oral evidence, are what appear to be copies of in-
terrogatories, and of the indictment and warrant:
Held, that such interrogatories and indictment and warrant were not
authenticated as part of the evidence, and the writ of ^rror will be
diftmissed.
2. The 10th rule uf the supreme court requires a brief of the oral and a
copy of the written testimony to be approved and sent up. It does
not contemplate the use of original papers.
Practice in the Supreme Court. February Term, 1880.
The facts are sufGciently reported in the head-notes and
decision.
J. F. Kbddino; E. W. Hammond; W. S. Whitakbk; J.
S. BoYNTON, for plaintiff in error.
Stewart & Hall, for defendant.
Wabnbb, Chief Justice.
When this case was called on the docket for a hearing
here, a motion was made to dismiss it on the ground that
all of the evidence contained in the record had not been
approved by the presiding judge, and filed according to the
requirement of the law in motions for new trial.
1 . It appears from the record that on the 14th day of
FEBRUARY TERM, 1880. 669
Pounds m; Humon.
October, 1879, the connsel for both parties signed the fol^
lowing agreement : ** We agree that the within is a correct
brief of the oral evidence submitted to the court and jury
on the trial of the above stated case, and consent that we
use the original interrogatories on the hearing of the motion
for new trial ; also consent that the original indictment and
warrant for assault with intent to murder against John H.
Pounds, used in evidence on the trial, be used without
attaching copies of the same hereto." The brief of the
oral evidence thus agreed to, was approved by the judge on
the 16th day of October, 1879, and filed in the clerk's oflSce
of Pike superior court, where the case was tried on the
same day. The motion was heard and overruled at cham-
bers, in Griffin, on the 8th of December, 1879. The objec-
tion raised here, was that the evidence contained in the origi-
nal interrogatories as well as the original indictment and war-
rant, read in evidence on the trial of the case, had not been
approved by the judge, although what purported to be
copies thereof were in the record sent up by the clerk.
Whether any part of the original interrogatories were ruled
out or not at the trial, we do not know, nor do we know
whether the indictment and warrant contained in the record
are the same as those read in evidence at the trial with the
same entries thereon, and cannot know, without the approval
of the judge to verify the evidence in the record tliat was
read and admitted on the trial of the case.
2. The 10th rule of this court requires that a brief of
the oral and a copy of the written testimony shall be pre-
sented to the judge for his approval, so as to make it a part
of the record as provided by the 4253 section of the Code.
The rule does not contemplate that the original papers
which properly belong to the clerk's office, shall be taken
from the files thereof, and carried about the country to be
used on the hearing of motions for new trials, thereby ex-
posing the same to destruction and loss, but on the contrary
the rule requires that copies thereof shall be made out and
presented to the judge for his approval, leaving the originals
670 SUPREME COURT OF GEORGIA.
Dean, executor, w. The Centnl Cotton Preee Go.
in the clerk's office, where the law requires them to be kept.
The effort here is to inject evidence which has not been
approved by the presiding jndge, into the belly of a brief
of evidence that has been approved by him. Inasmuch,
therefore, as it does not affirmatively appear that the pre-
siding jndge approved the evidence contained in the orig-
inal interrogatories and the other written evidence contain^
in the record, the writ of error must be dismissed — ^and it
is so ordered.
Dban, executor, V8, Thb Cbntbal Cottok Prbss Compant.
1. A will provided first for the payment of the debts of the testator,
then for the payment of certain specific bequests, then that the bal-
ance of his estate should go to his son for life, with remainder to
the children of such son, if any, and if none, then to certain other
relatives. It also provided that the son should not be allowed to con-
trol the property until he should become of age; and that the exe-
cutors should see to his religious and secular education. The son
became of age in 1854, and died in 1S60, leaving a child born in 1855.
On an ex parte proceeding in equity in 1848, filed less than thirty
days before the term, the court of chancery of the county where Um
executor lived, and in which he obtained letters of administration,
rendered a decree, founded on the verdict of a jury, allowing him
to sell certain realty in order to pay a debt and to make the distribu-
tion required by the will, and the sale took place accordingly:
HM^ that though the proceeding was irregular^ the court was not
without jurisdiction to render the decree, and not being void, it
cannot be collaterally attacked. The executory devisee was not then
born, and the executor represented her interest so far as it could
have a representative.
2. Prescriptive title which is good as against the executor of an estate,
is also good as against the executory devisee born thereafter, and
whose interest was represented by such executor.
Estates. Equity. Jurisdiction. Administrators and exe-
cutors. Devise. Legacies. Title. Prescription. Before
Judge Flemino. Chatham Superior Court. Decembw
Term, 1879.
Beported in the decision.
FEBRUARY TERM, 1880. 671
Dean, executor, v*. The Central Cotton Frees Co.
Jambs Atkins ; Jno. O. Clabku, for plaintiff in error.
GsoROB A. Mbbobb, for defendant.
Jaokson, Justice.
Dean, as execntor of the will of Lonise O'By me, brought
suit to recover a city lot in Savannah against The Central
Cotton Press Company. The title of Miss O'Byrne, the
plaintiff's testatrix, rested on the will of her grandfather,
Lawrence O'Byme. He died in 1836, and another execntor
having ceased to act, Porter took charge of the estate left
by the will in 1838. In 1843 he applied by bill in equity
to the superior court to sell a part of the real estate in
order to pay a debt and certain monied legacies, and by a
decree in chancery, he was directed so to sell, and did sell ;
aAd the defendant holds under that sale, so that plaintiff and
defendant both claim through Lawrence O'Byme, and hold
their titles under his will, which is as follows :
" iBt Item. — In the first place I charge my estate with the payment
of all my Just debts.
"2d Item. — I give unto my immediate relatives the sum of five
thousand dollars, to be equally divided among them, that is to say,
anto my father, John O'Byme, my brothers, Moses, Michael, John and
James, and my sister Mary, of the Township Chapel, county of Wex-
ford, Ireland, and in case of the death of either of the above named
persons, the amount or proportion of the above named five thousand
dollars, which has been bequeathed him or her shall be equally divided,
among the survivors. I charge my executors to pay over the above
named legacy within two years from the date of my death. The lease
of the store next to the City Hotel, in the city of Savannah, now in
my possession, and leased by me from the estate of Guerard, shall be
transferred to Michael Oliver Dillon for the balance of the unexpired
term of said lease, he paying rent for the same on the terms which I
have rented it for.
"8d Item.— I give and bequeath unto the vestrymen or trustees of
the Roman Catholic Church, of Savannah, the sam of four hundred
dollars, the same to be applied to the building of the new Catholic
Church, or towards extinguishing its debt*", if any there be.
*' 4th Item. — I give and bequeath unto the Reverend Jeremiah F,
O'Neil the sum of two hundred dollars.
■kT
SUPREME COURT OP GEORGIA.
"Sthltem. — 1 give uud bequealb unto my son, Junes Jeremiib
(aftOT paying the above named leg&ciei), the whole of my real and
perauual eetaW, conaisliug of houses, lands, tenements, negroes, elc,
as will appear by deeds and titles in my possession, to have and to liold
tbe samefnr hisaseas specified in the following, tIe: toreceiTeall the
proceeds of the rents. Interest, etc., whicli may accrue from tbe prop-
erty for his own and apecial use, after deducting the necessary ei>
penses on the same property— but In no cM wbatsoeTer eliall he be
allowed, until he shall have arrived at the age of twenty -one years, the
control or management of the said property or estate, but allowed
■uch sums as my executors may deem necessary for his eduentlon and
maintenance. I further command that my son, James Jeremiah, shall
not liave tbe power of disposing or selling the above property during
his natural life, his possessioD or benefit of the same being but for hi*
natural life, but in case of any lawful issue by him, then tbe same shall
descend to his child or children for their uae and benefit, and 10 be
used or disposed of as they may think proper or fit. But in the event
of no lawful issue from him, tbe above named property shall be equally
divided among my relatives named in this will.
"6th Item.— I request of my executors to pay particular attention
to the education of my son, James Jeremiah, to see that he is properly
instructed in the faith of the Roman Catholic Church, and to receive
a finished education in euiue Catholic <.'ullt>^ in the United SutLcs.
"7ib liem.—AndlaiUi/, [ do ordain and appoiul Anthony Portef
and Michael Oliver Dillon my executors to this iny lost will and testa
■' Dated January 18, 18»0."
It will be observed tJial l»y tlie firet item of the will.tlie
entire efltale ie cliar^'l vritli the payment of the icatator's
dehtu; that by the secuiul item, a legacy of five thouBnnil
dollani IB left to certain rolatives in Irnlan<1, to l>e ;iai(l them
within two years from iiin deatli ; and that by the 5t)i ttem,
after payrtiefnt of the hganis, the whole eatale ia given to
James Jeremiah, his eon, for life, with directions that he is
not to control the property until twenty-one, even aa life
tenant, and in the event of issue by him, "then the eame
shall descend to his child or children for their use and bene-
fit, and to be aaed or diRpoec^l of iu they \»&y think proper
or fit," and in the event tiint he leaves no child, then the
property to go to tbe Irish reUtiont tiained in thflw
FEBRUARY TERM, 1880. 673
Dean, ezecator, tw. The i^tral Cotton Prow Co.
item. By the sixth item the executors are entrnsted with
the education of James Jeremiah, with his instruction in
the faith of the Roman Catholic Church, and his secular
education is to be 2i finished education, and in some Catholic
college in the United States.
James Jeremiah became of age in 1854, and died in 1860,
leaving one child, bom in December, 1855, and died in
July, 1876, still in her minority ; she left a will, with
plaintiff as executor, and he sues for this property as her
land at the date of her death.
The defendant defends on two grounds : First, regular
title through Porter's sale, under the decree in 1843, and
secondly, prescriptive title, under the deed made by Porter
as color, with more than seven years possession thereunder.
The jury, under the charge of the court, found for the de-
fendant, and a new trial being refused, the plaintiff here
and below excepted, and the question is, do the facts put
the legal title in the plaintiff or in the defendant ?
1. So that the first question ip, did the court of equity of
Chatham county have jurisdiction to decree the sale of this
city lot so as to divest the title of Louise O'Byrne, in 1843,
twelve years before her birth ? It was an ex parte bill — it
was not filed in office thirty days before court — neither the
Irish relatives nor James Jeremiah, through a guardian ad
litem or otherwise, were made parties, or served with notice
of any sort ; and the proceeding thus appears irregular in
some respects. But a regular trial by jury was had, a de-
cretal verdict was rendered, the verdict regularly entered
on the minutes of the court, and tliose minutes signed
by the judge of the court — the chancellor who pre-
sided on the trial. Was the court without jurisdiction,
and the decree, therefore, void? or were the proceed-
ings merely irregular, and, therefore, good, unless set aside
by a proceeding instituted regularly in the court which au-
thorized the trial and sanctioned the proceedings ? If not
void, it could not be collaterally attacked. Code, §§3593,
3694. So that it appears plain from the above cited sections
674 snPKEME OOUBT OF GEORGIA.
Dean, eKcolor, ». Tbe CBiln] Cotttm Pnas Co.
of onr Code, that if the coart had jnriBdiction, the decree
IB not void, and conld onl; be attacked where rendered ;
for unqaestionabl; it is of eqoal force vitb a jndgment
Code, §§4212, 4217, 4219.
Did the chancer; court lisve jurisdiction t It has ever
been held in Georgia, so far as we know or are advised, that
the JDriediction of chancery was co-ordidate with the ordi-
nary's on the matters of dietribntion of estates. Indeed,
the exclasive jurisdiction given to the ordinaries touching
administration is first found in the Code ; Prince's Dig.,
243 ; Cobb's Digest, 319, 323. And now, even after snch
jurisdiction is given, it does not oust the jurisdiction of
equity in mattersof distribution. Code, §§2600, 3144, 3145.
Such has ever been the law in this state and elsewhete where
English equity powers and practice prevail. Story's £q.
Ju., §530 to 534, 542-543 ; Adams' Eq., 250, n. 1 ; U
Oa., 323 ; 23 lb., 35 ; Wait's Actions and Defenaea, 207 ;
19 Ala., 438 ; 52 Oa., 153.
Tbe court, therefore, had jurisdiction of the subject mat-
ter. Did it have jurisdiction of the pemon t Certainly it
had of this executor ; for he lived in Chatham and obtained
letters there. It had of the plaintifTs testatrix ; for she
conld be represented only by this executor. The petition
or bill was filed and the decree had twelve years before her
birth ; therefore, it would be folly to have a guardian ad
Utetn appointed for one unborn. Service on her then in-
fant father would have been none on her, and in no sense
could she have been represented by him ; for she did not
hold by descent, but purchase. She held under her grand-
father's will, and not by descent from her father. There is
no privity of estate between them — nor could she have been
represented by the Irish legatees or devisees in contingent
remainder or by executory devise ; for her birth annihilated
their estate, aud she was born to their deatniction No
privity was ever between them. So if her father \\m\ licen
madeaparty, or the Irish relatives parties, still she would not
have been concluded because they were parties ; fur neither
FEBRUARY TERM, 1880. 675
Dean, executor, «f . The Central Cotton Press Co.
was her ancestor as to this property. She must, theref ore,
have been represented by the execator ; for no other living
being could have acted for her ; and if he could not and did
not act for her, and represent her, there could have been no
execution of this will by the sale of land charged to pay
the debts and legacies. But he did represent her — 61 Oa.^
384-2 ; 5 Paige's Chan., 216 ; 48 Oa., 342. Therefore, the
court had jurisdiction of the person of the executor, and of
the unborn infant; and therefore the decree is not void
for want of jurisdiction, and therefore it cannot be attacked
collaterally. Code, §p593-4.
Besides all this, the case peculiarly required chancery in-
terposition. The estate owed a debt secured by mortgage
— the executor had borrowed money to pay it — eighteen
hundred dollars was due thereon — the five thousand dollar
legacy was unpaid and could not be paid without ' the
sale of real estate, the life interest in that real estate be-
longed to a ward in chancery — ^an infant — the remainder
interest might be in the Irish devisees, and probably was
there as a bare fee — subject to be destroyed by the birth of
a child to this infant in years to come — all the land was
charged to pay debts and legacies, and it would seem from
this review that equity alone had full power over the prem-
ises. It is conceded that if the ordinary had granted leave
to sell, the infant unborn would have been bound by his
order; if, then, equity had even concurrent jurisdiction,
the unborn child was also bound.
It is conceded, too, that equity would in England have
jurisdiction over personalty situated as this estate was ; if
so, the act of 1821 having put realty and personalty on the
same footing for distribution in Georgia, equity here would
have jurisdiction to decree the sale in question. Cobb's
Dig., 293.
But the truth is, that this plaintiffs testatrix was, by the
will, but a residuary devisee — she took only what was left
after the payment of all debts, and of these legatees,and of the
expenses of the support and finished Catholic education of
676 SUPREME COURT OP GEORGIA.
Dean, execator, ««. The CeDtnl Ootton Pkm Co.
her father ; and the whole estate was bonnd for the first
two objects at least, and the entire income was her father's
for life. The title was in the executor to the entire prop-
erty, for certain f^reat tmsts, nntil her birth. See 46 Oa.y
247, where this principle seems to have been distinctly rec-
ognized in a case somewhat analogous. And it mast be so
to carry ont the will. It is folly to charge land with the
payment of debts and legacies, and yet give no power to
the executor — vest no title in him — to carry out the will,
and pay the debts and legacies. The life tenant took sub-
ject to this charge, and makes no complaint ; the legatees in
Ireland took a contingent remainder or base fee, subject to
be divested by the birth of James Jeremiah's child, less this
charge to pay their own legacies, which they got and conld
not complain, had their estate never been destroyed by the
contingency of the birth of Louise ; and when she was bom
what she got was subject to, and the residue left after, pay-
ment of these debts and legacies — ^and she cannot complain.
We hold, therefore, that the title of the defendant is good
to this lot of land against her and her executor, and that
the verdict and judgment are right on the first ground set
up by defendant, that absolute title passed to it and its
grantors by the sale, under the decree in 1843.
2. This makes it unnecessary to elaborate the other de-
fense— the title by prescription. That is equally good.
For if the purchaser held adversely to the executor, he held
adversely to the inffint whom that executor represented ;
for he represented all who took under this will until the
remainder was determined by the birth of plaintiflPs testa-
trix, and he assented to the devise. Code, §2451. This
dict/u/nh must have sprung from the act of 1821, for the
reason is that realty, as well as personalty, is assets to pay
debts. Where the title at law is in the infant, the statute
does not run against her ; but if in the trustee, it runs
against him, and, therefore, against her — 8 Oa.y 1 — ^and fol-
lowing cases down to 61 Oa.^ 54.
The title was in this trustee and must have been in order
FEBRUAEY TERM, 1880. 677
Smith, conntj treasanr. tw. OuUaw, sherlif.
to execute the will— to see to the edacation, religions and
secular, of James Jeremiah — to pay the debts and legacies
— ^to divide the legacies among suryivors to determine who
were the survivors to take the absolute fee in remainder
if James Jeremiah died without children — ^and to preserve
the estate until these questions were settled by the birth of
Louise, the plaintiff's testatrix. We are clear, therefore,
that the court was right on both defenses, and the judgment
is affirmed.
See 3 KeUj/j 266; 10 Oa., 361; 55 /ft., 98; 23 /ft., 31;
61 /ft., 77.
Judgment affirmed.
Smith, county treasurer, vs. Outlaw, sheriff.
1. Under §887. par. 7, §568, par. 1, and §668 of the Code, the ordinary
has Jurisdiction to cite the county treasurer to appear before him
for a settlement of his accounts, as well as to order that moneys in
his hands be paid out by him to the proper persons, and upon his
faUure to pay, to issue execution for such default.
2. When an execution was levied upon " one house and one half of
lot No. 12 in the town of Wrightsville, adjoining T. W. Kent and
Streets/' the description was sufficiently accurate.
8. Where no costs were taxed against the defendant, so far as the
record discloses, the fact that the Judgment and the execution based
thereon do not contain itemized bill, is no ground of illegality.
Ordinary. Judgments. County Matters. Illegality.
Before Judge Johnson. Johnson Superior Court. Sep-
tember Term, 1879.
Beported in the decision.
Jambs K. Hinbs, by Z. D. Harbison, for plaintiff in
error.
«
John M. Sttjbbs, for defendant.
678 SUPREME COURT OF GEORGIA.
Smith, ooan^ treasarer, «#. OntUw, sherlit,
Cbawfobd^ Justice.
The defendant in error, as the sheriff of Johnson connty,
filed his petition to the ordinary of said county setting
forth that as snch officer he had collected and paid over to
the coanty treasurer in money and county orders at various
times, and in different amounts, $969^48, and that out of
the said sum so paid over there was due to him, as sheriff,
$90.08, which the said county treasurer refused to pay ;
the said ordinary thereupon issued a rule nisi calling upon
the said treasurer to appear and show cause why an order
should not be granted requiring him to settle and pay over
the said sum so due and owing from him, as such treasurer,
to the said sheriff. No sufficient answer having been shown,
and an examination of the accounts of the treasurer show-
ing the fact to be as set out in the petition, it was consid-
ered and adjudged that the said sheriff recover the sura of
money so due and withheld by the said Smith, treasurer of
the said county.
Upon this order and judgment a fi^fo^^ was issued and
levied upon a house and lot of the said Smith, and there-
upon he filed an affidavit of illegality on the following
grounds :
1. There was no judgment on whicli to issue said execu-
tion.
2. Because the ordinary had no jurisdiction to give and
render the judgment on which the execution issued.
3. Because the^.ya. was illegal and void.
4. Because the ordinary liad no power to issue the rule
nm, and therefore the whole proceeding was illegal and
void.
6. Because the property levied upon is insufficiently de-
scribed.
6. Because there is no itemized bill of costs.
This affidavit was h^rd upon these several grounds, and
dismissed by the judge below because the defendant had
had his day in court. To this ruling the defendant exti
FEBRUARY TERM, 1880. 679
Smith, coantj treMurer, «f . Outlaw, sheriff.
cepted, and now assigns error thereon. The questions
made in this record for oar adjudication are as to the juris-
diction of the ordinary; his legal right to issue this fi.fa,;
whether the levy sufficiently describes the property ; and
should there have been an itemized bill of costs upon the
execution.
1. The ordinary when sitting for county purposes has
original and exclusive jurisdiction to examine and audit the
accounts of all officers having the care, keeping, collection
or disbursement of money belonging to the county, and of
bringiog such officers to a settlement. Code, §337, sub.
div. 7. By §553, sub. div. 1, it is made the duty of the
county treasurer to diligently collect from all officers and
others all county dues ; and, by sub. div. 3, to pay without
delay when in funds aU orders according to their date or
other debts dvs; by sub. div. d, to appear before the ordi-
nary to render an account of his actings and doings.
By §563 of the Code it is provided *' where the county
treasurer at any time fails to pay any order which is entitled
to payment, or other legal demcmd upon him,^ or any balance
that may be in his hands, to his successor, or to the person
entitled to receive it, the ordinary may issue execution
against him and his sureties for the amount due as against
a defaulting tax collector."
These clauses, in our judgment, give ample jurisdiction
to the ordinary to cite the county treasurer to appear before
him for a settlement of his accounts for whatsoever may be
in his hands and paid over to him as such county treasurer,
as well as to order that the same be paid out by him to the
proper person having the right thereto, and upon failure so
to pay, then to issue an execution against him for such de-
fault.
2. The levy is upon one house and one-half of lot No.
12 in the town of WrightsvillCj adjoining T. W. Kent and
Streets ; and one house and one-half of lot 12 in Wrights-
ville, which half of the lot is that next to Kent and Streets,
describes the lot sufficiently accurate to make it certain,
«80 SUPREME COURT OF GEORGIA.
Connan vt. Dnnlap.
exactly what part is levied upon for sale, and that is all
which ie reqnired bj law.
3. The last ground of this illegality is that there is no
itemized bill of costs. This objection we do not appre-
ciate, as upon examination we find no amoarit of costs
taxed at all against the defendant, and if there be none set
out and no jadgment for any, that would not make the
proceeding of the fi^fok, illegal.
Judgment affirmed.
CONNON V9, DUNLAP.
Where an attachmeDt is sued out against one partner on a partnership
account under §8276 of the Code, the declaration in attachment
need not be against both partners, but only against him who is thus
subject to summary process.
Attachment. Partnership. Before Judge Spksb. Bibb
Superior Court. October Term, 1879.
To the report contained in the decision, it is only neces-
sary to add the following :
Dunlap sued out an attachment against Connon, as a non-
resident member of the firm of McOrath dk Connon. His
declaration in attachment was also against Connon alone,
as a member of said firm. The account attached to the de-
claration was against the firm. Defendant moved to dis-
miss the declaration, to rule out evidence, and for a non-
suit, each motion being based on the non-joinder ^of Mc-
Grath in the suit. Each was overruled. The jury found
for plaintiff. Defendant moved for a new trial. It was re-
fused, and he excepted.
Washinotoic Dessau ; Lanibb dk Akdkbson, for plaintiff
in error.
Blount & Hardeman ; N. & Habkeb, for defendant
FEBKUARY TERM, 1880. 681
PitU «f. Flonmoj A Epplng €t al,
Wabnsb, Chief Jostlce.
This was an attachment saed out by the plaintiff against
the defendant as one of the partners of the firm of McGrath
& Connon (alleging that Connon resided oat of the state)
under the provisions of the 827Bth section of the Code,
and was levied upon the individual property of Connon.
The only qaestion made by the record in this case, is
whether, as the attachment was founded upon a copartner-
ship debt, the plaintiff should not be required in his decla-
ration to declare against both partners jointly, inasmuch as
the attachment is founded upon a joint contract. The
plaintiff in error insists that the declaration should be
against both partners jointly. The reply is that Connon,
one of the partners, resides out of the state and the statute
declares that in such cases the proceedings against co-
partners shall be in all respects as in other cases of attach-
ment, except the attachment shall be levied only upon the
separate property of such copartner, which was done in this
case. The only difficulty in the way of the legal theory of
the plaintiff in error is the statute embraced in the 3276th
section of the Code, providing for just such cases as the one
in the record befoie us. The mandate of a statute is like
that of a tyrant ; it speaks to be obeyed.
Let the judgment of the court below be affirmed.
Prrrs vs. Flournoy & Epping et al.
A bill filed by Flournoy & Epping alleged as follows: Pitts had B.fl.fa.
agninst Kimbrougb. Flournoy & Epping bad two fi. feu. against
bim, one older, the other younger than Pitts', but the younger
founded on a mortgage containing a waiver of homestead. All
were levied on certain cotton. To defeat Pitts Eimbrough had the
cotton set apart as an exemption and filed a claim with Flournoy <&
Epping as securities. The morterage fi. fa. was pioceeding; Eim-
brough appealed to Flournoy & Epping not to sacrifice the cotton
at fheriiTs sale at Lumpkin, but to take it at a fair valuation of
683 SUPREME OOUET OF GEORGIA.
PItu H. Floonior * lpp[iig of al.
$400.00, carry it to Columbus, where it could be Hold, and if it
brought more than that to give hia family the benefit of ii; thii
Ihey agreed to do, and bare made the sule accardingly . The cluin
of Eimbrough under the Pitta Jl. fa. was dismisard without a trial,
and Eimbrough refuses to interpose another claim. He and Piltt
are kinamen, and hsTS colluded, etc. ; both are iDsolvent. Pitta bai
notified them to produce the cotton, and thej will be subjected to
suit OD their bond. Discovery was waived. Defendaot's answer
denied collusion with Kimbrough, and charged that the claim itself
waa the result of fraudulent collusion between Kimbrough and
Hourooy & Bpping to delay bim:
HM, that under these facts >iie chancellor did not err in grandug an
injunction to restrain Pitta from proceeding until the floal beat-
£(]aity. Injunction. Before Judge Burr. Hueoogee
County. At Chambers. February 25tli, 1880.
To the report containod in the decision, it is ouly neces-
sary to add that the bill waived discovery.
Blandfdkd &, GiJB&LBDy for plaintiS in error.
Sam'i. B. Uatchbb ; Uenbt R. Gostchids, for de-
fendants.
Jaokbom, Justice.
The plaintiff in error obtained a judgment and ^ fa.
against J. W, Kimbrough in June, 1877, which, in Novem-
ber thereafter, was levied upon fifteen bales of hie cotton.
T-voJLfaii. in favor of Flournoy A Epping, onea common
law^.ya. of older date than Pitts', the other a mortgage^.
fa,, yonnger, but with a waiver of homestead and exemp-
tion, were also levied on the same cotton. Kimbrough, to
defeat the collection of the Pitts' ^^a.,Jiad an exemption
of personalty granted him on the cotton, and as trustee for
his wife and children claimed it, with Flournoy & Epping
as hie secorities. The aheriff returned the Pitts ^.^a. with
the entry thereon of " homestead taken," aod the cUim
p8,n<u»->naiQg on the same, hack to the court.
FEBRUARY TERM, 1880. 688
Pitts V8. Floamoy A Bppiog et al.
The homestead and exemption of personalty having been
waived in the mortgage of Flournoy & Epping, their Ji.f a.
was proceeding to sell the cotton, when Kimbrongh, as is
alleged, appealed to them not to sacrifice his cotton in the
town of Lampkin, which was not a cotton market, bnt to
take it on their fi, fa. at the price c^ $400.00, which was its
valne there, and bring it to Columbus where it would sell to
better advantage. It is further alleged that being kindly dis-
posed towards said Kimbrongh and his family they agreed
to do so, and that if it brought any more than the J;4:00.00
his family should have the benefit of it. When the claim
case came on to be heard it was dismissed without a trial,
thus leaving the Pitts ^. Ju. to proceed under its former
levy on the fifteen bales of cotton, though they had been
brought to Columbus and sold under the agreement en-
tered into with Kimbrongh by Flournoy & Epping.
The complainants allege that Kimbrongh and Pitts are
related ; that notwithstanding his, Kimbrough's, agreement
with complainants he refuses to interpose another claim ;
that Pitts has advertised the cotton for sale ; that Kim-
brongh, combining and conspiring with Pitts to defraud
them, and in answer to his strange and unjust proceedings^
says that he and the said Pitt« understand each other ; that
Pitts has notified them to produce the cotton at the sale ;
that they, Pitts and Kimbrongh, are both insolvent ; that a
continuance of this fraudulent conduct on the part of Pitts
and Kimbrongh will subject them to a suit on their bond
where they cannot make defense as adequately as they can
in a court of equity ; that their bill will prevent a multipli-
city of suits, terminate endless litigation, place at rest the
title to said property, and settle the equities between all
parties, ^fiberefore they pray for an injunction against
the said Pitts until all the equities can be heard and de-
termined.
Upon the hearing of this application for injunction the
same was granted by the chancellor, and Pitts, by his coun-
sel, excepted.
V64-4a
684 SUPREME COURT OF GEORGIA.
Howard t». Chamberlln, BoynUm >. Co.
The defendant, Pitts, denies all combination with Eim-
brongh, and chargeb that complainants procured the claim
of Kimbrongh, and became his securities with the fraudu-
lent intent and illegal purpose to hinder, delay and defeat
him in the collection of his debt.
We think that the allegations in complainants' bill, and
the denials and charges set up in the defendant's answer,
make such a case as should be passed on by a jury, and that
the chancellor committed no error in granting the injunc-
tion.
Judgment affirmed.
Howard vs. Chambeblin, Boynton & Company.
1. Exceptions pendente lite should be tendered, filed, ordered to be re-
corded, and recorded at the term when the rulings complained of
were made. A failure to comply with any of these requirements
during the term will prevent a consideration of the exceptions.
This case is not governed by WctUh m. CMqtUU, governor, 62 Ga.,
384, where a party excepted prematurely, and where this court
granted an order allowing the exceptions to be filed pendenU
Ute after the term because they believed it to be consistent with jus-
tice and law, as provided by the Code, §4284.
2. Where suits were brought in a justice court each month, the ground
of which was that plaintiff had been employed for a year at $60.00
per month, and had been discharged pending the term, interest
necessarily accrued, and the plaintiff could not waive or remit in-
terest so as to leave each amount even $60.00 and prevent appeals.
8. Suits between the same parties, arising under the same contract,
involving the same pleas, and upon which the same verdict must be
rendered, are properly consolidated.
4. Where a party to a cause makes himself a witness in his own be-
half, he should be held to answer strictly and minutely every inter-
rogatory of which he has knowledge, and if he neglects so to an-
swer, or answers evasively, such testimony should be rejected.
5. In a suit by one as a discharged employ^, the issue being whether
or not he was discharged, statements made by him after the time
when notice of discharge was alleged to have been given, and be-
fore the time when it was to take effect, were admissible to show
preference by him of other service.
FEBRUARY TERM, 1880. 685
Howmnl tw. Obamberlin, Bojnton A Oo.
6. Howard sued Chamberlin, Boynioa & Co. bb a discharged employ 6;
one plea was that he had accepted employment with Aken, and had
not been injured. It appeared that plaintiff traveled for Akers and
sold fruit trees, taking notes therefor; he was to get a commission
on what was collected from these sales. Books containing notes
were offered in evidence on the testimony of Akers that they had
been received from plaintiff; also a book compiled from these notes
by Akers and plaintiff containing a schedule of the makers and
amounts with marks of payments where made :
Hdd, that they were admissible.
(a.) It being admitted that plaintiff was employed by defendants for a
year, and that the employmeni terminated before the end of the
year, the issue being whether the termination was by discharge or
lescission, evideuce was not admissible to show that plaintiff left a
more lucrative position in order to obtain a year's employment with
defendants.
7. There was no error in the charges or refusals to charge as shown by
the record.
Practice in the Supreme Conrt. Practice in the Superior
Court. Contracts. Interest. Waiver. Appeal. Evi-
dence. Charge of Court. Before Judge Hillybb. Fulton
Superior Court. September Term, 1879.
On Ma; 2d, 1878, Howard brought two suits in the jus-
tice conrt 1026, D. 6. M., against Chamberlin, Boynton
& Co., each on open account. The first was as follows :
"Atlanta, Ga., May 1, 1878.
"Chamberlin, Boynton & Co. to Warren Howard, Dr.
"To amount due for the month of March, 1878, under contract of
services as clerk for 1878, at $60.00 per month |50.00."
The other account was the same, except that it was for
"the month of April, 1878." On the trial the justice ren-
dered judgment for plaintiff in each case, and defendants
entered appeals. Subsequently Howard brought eight other
Buits, being respectively for the months from May to De-
cember inclusive, one suit for each month. The accounts
sued on were similar to the above, except the last two.
The ninth suit (for November) was on the following ac-
count :
«86 SUPEEME OOUBT OF GEOEQIA.
Botnid s>. ChunbarttD, BoTnton A Cb.
"Atlutta, Oa., JnaatJj 20, I81t.
"Cbamberlin, Bojaton & Co. to Warren Howard, Dr.
"To unouat due to dolt for the month of November, I8T8, under
GontTMit of services as clerk at $60.00 for each month in 1878, tSO.OO.^
The tenth account was an follows :
"&.TI.ANTA, Oa., February % 1839.
"ChamberliD, Bojnton & Co. to Warren Howard, Dr.
"To amount due to date for serrices as clerk for the month of De-
cember, 1878 900.00.''
On each of these suits the justice rendered jadgment for
the plaintiff, and defendants appealed. The judgmenteiu
the enits for Jnne and Jnlj, 1878, were for $50.00 even;
the first judgment (for March) had an interlineation of in-
terest, which the court held to be a nullity, thus leaving it
also for $50.00. The remainder of the judgments included
interest.
At the fall term, 1878, of Fulton superior court, five of
these appeals (suits from March to Jot; inclusive,) l>d
been sent np. Plaintiff moved to dismiss them on tvo
grounds :
(1.) Each of them on the ground that the amount claimeil
was not such as to render the ease appealable.
(2.) To dismisB the appeals in eases for June and Jnlj
because the appeal bonds given did not correspond with or
describe the judgments in those cases.
The bonds described the judgments as being "in 1026tb
district, G. M., of Fulton county, Greorgia, for $50.00, prin-
cipal, and forty-five cents interest ;" whereas the jodgmenU
for those months were each for $50.00 and costs. Coaoset
for defendants stated that the bonds were so drawn bectow
he had understood from the inii^^'islmti: tli:it iTitoi\;st vi\.m\H
be included, but plaintiff's counsel ubjected to interealiUid
it was not included.
The court overruled the motion to disniias, and pfauBliS
excepted pendente lite.
At the September term, IST'J, of the court all the i^peal*
had been sent up, and werecallci! for trial. Plaintiff's cohbhI
PEBRtJARY TERM, 1880. 687
Howard w. Chamberlin, Bopitoo A Co.
moved to diflmifls each of the last five (being appeals of
suits from August to December inclusive,) on the ground
that the amount claimed was not such as to render the cases
appealable. Counsel stated in his place that plaintiff did
not claim interest, nor had he ever claimed it, but had al-
ways been willing to write off interest, and that these five
judgments in the justice court only included it because in
taking judgment in one of these cases the defendants' coun-
sel claimed that interest was obliged to be inserted, and
the justice ruled that such position was correct, although
plaintiff's counsel objected ; and that afterwards judgment
by default was entered in each subsequent case, including
interest, plaintiff's counsel consenting to avoid going
through a trial in each case in the justice court, each in-
volving like questions. Plaintiff's counsel offered to write
off all interest, and disavow any claim thereto. The court
held that the records showed that the amounts sued for
were liquidated, and bj law must bear interest, and that
interest could not be waived or disclaimed. He thereupon
overruled the motion.
The court then ordered the cases to be consolidated and
tried together, over objection of plaintiff.
A set of interrogatories was sued out by plaintiff's coun-
sel for him, and executed in November, 1878, before the
close of the year involved in the suits. The court held
them improperly taken, because the fourth cross-interroga-
tory was not fully answered. This int^errogatory and an-
swer were as follows :
" Fourth cross-interrogatory — Are you not now in the em-
ployment of Mr. Akers ? Did you not make a contract
with him in the month of February, 1878, to commence
work with him on the 1st of March, 1878 ? If you did,
what was that contract ? State fully and particularly. If
it was in writing, attach it or a copy of it to this answer.
Have you done so ? If it was not in writing state fully its
terras. Where were you during the months of March, April,
May, June, July, August, September and October, 1878?
688 SUPREME COURT OF GEORGIA.
Howard iw. Obamberiin, Boynton & Co ,
What were yon doing, and what did you receive for your
work, or what are you to receive if you have not been paid
for the months above mentioned? If you say that yoa re-
ceived a commission, state what your commissions for each
of the named months amount to? and if you say yon
have not received them, why not? State fully and partic-
ularly what your commissions amount to for March, April
May, June, July, August, September and October, 1^78,
whether yon have collected them or not ? If you state
you worked for Mr. Akers on commission, state theamoQnt
of your sales for each of the above named months ? What
were you to receive out of said sales? What have you
received of said amounts? What are you to receive!
What amount is good and collectible ? What amount is
bad? State fully and particularly. What was the aggre-
gate amount you received or will receive on account of
service rendered to Mr. Ackers from 1st of March to Ist of
November, 1878 ? State fully."
'' To the fourth cross-interrogatory he answers : I am. In
the latter part of February, after having been notified of
my discharge by defendants, Mr. Akers asked me if I wonld
like to work for him. I told him I would, and asked him
what he would give me. He said he would give me thirty
per cent, of all the money I collected from the sale of frait
trees sold by myself, or would give me $50.00 per month,
and allow me a sum for expenses, these expenses not to
exceed ten dollars per month in money, and wherever I
could pay my expenses by promising fruit trees in the fall
1 could do so, and if less than ten dollars in cash was used I
was entitled to only the actual amount used. All of this
was dependent entirely upon my collections. The pay-
ment of $50.00 per month depended upon my collecting
that amount from sales I had made. That agreement wu
reduced to writing on the 10th or 11th of February ; it ib
not in my possession. I have given the language as near
as 1 can remember it. I misplaced the contract, and don*t
know where it is. I have not decided which of these offen
FEBRUARY TERM, 1880. 689
Howard w. Chamberlln, Boynton A Go.
I will accept, as both of them depend apon my collecting
the different amonnts. I was going through the conntry
selling frnit trees; I was in Atlanta at different periods
dnring that time ; I remember specially in May and Octo-
ber. I cannot give the exact amount of sales for each of
these months ; bnt I was to receive nothing on sales, bnt
I was to receive thirty per cent, of collections. I have not
received a cent for any of these months ; I am to receive
thirty per cent, of what I collect if I see fit to do so. It is
impossible to state what amonnt is good or what amount is
bad ; I cannot tell, for it depends entirely apon collections.
I have not received one cent for these months from John
W. Akers on account of collections."
On the trial it was admitted that Howard was employed
by defendants for the year 1878, at $50.00 per month, and
that one of defendants went to him about the last of Jan-
uary or first of February, told him that they would not
need his services after the first of March, and requested
him to get another place ; and it was shown that some time
in March plaintiff went to work for J. W. Akers, that he
continued with him through the year, selling fruit trees,
that the contract was that he should receive 30 per cent,
on what was collected from sales made by him, that he re-
alized some $460.00 therefrom, and that he was sick for
some weeks during the summer. Defendants insisted (1.)
That plaintiff was not discharged, but volu^itarily agreed
to a rescission of the contract. On this subject the evi-
dence was in direct conflict. (2.) That he had made nearly,
if not quite, as much working for Akers as if he had re-
mained with them. (3.) That he had been sick a portion
of the time and unable to work.
J. H. Wood was a witness for defendants. He testified
that in the month of February, 1878, he had a conversation
with plaintiff, in which the latter said he had gotten
another place with Akers, hoped to make more, and he
would not stay with defendants if they would increase his
salary to $100.00 a month. On cross examination he testi-
690 SUPREME COUBT OF GEORGIA.
Howard Of. Chamberllii. Bojnton A Oo.
fied thac plaintiff stated that he had been notified that he
would have to leave after March Ist, and witness and others
were regretting that he was going to leave when the declar-
ation was made, which is ^t out above. Plaintiff objected
to the statement that he would not stay with defendants,
etc., as being made after the discharge, and therefore irrele-
vant. The conrt admitted the evidence.
Testimony of Akers touching the amount made by plain-
tiff in his employment was objected to by plaintiff's coun-
sel, because it appeared that his information was derived
from letters, memoranda, etc.; it was admitted over objec-
tions, and plaintiff excepted ; but the memoranda, etc.,
were subsequently accounted for, and the ground not relied
on by counsel for plaintiff in argument.
Certain books were offered in evidence by defendants
and objected to by plaintiff. It appeared from the evidence
of Akers that after plaintiff went into his employment,
the latter traveled through the country selling fruit trees
for him. Plaintiff would take notes or written orders for
the trees, payable on delivery in the fall. Three of the
books offered Akers testified had been sent to him by plain-
tiff as containing these notes. The fourth was a tabulated
statement of the other three, and of other like books sent
by other agents. It was made by Akers, and plaintiff as-
sisted him in the work ; then compared it with the books
from which it was made up, were satisfied of the correct-
ness of it. It 'contained the names of purchasers of trees,
and the amounts of their purchases ; opposite each sale was
the initial of the agent who made it; and opposite some of
these was entered "pd" or "paid," indicatmg payment.
Plaintiff objected to the three books of notes on the ground
that no execution of them was proved ; and to the fourth,
because of irrelevancy, and because the entries were secon-
dary evidence— especially so as to payments made. They
were admitted.
The point being directly in controversy whether plaintiff
figreed to give up his situation with defendants, or was dis-
FEBRUARY TERM, 1880. 691
Howard w. ChamberUn, Boynton A Co.
charged, plaintiflF's coaneel offered to show by R. A. Hemp-
hill that plaintiff bad a situation with witness which paid
hiin $60.00 per month, and which he gave up to accept a
year's employment with defendants. The court rejected
this. The court refused to give each of the following re-
quests of plaintiff's counsel in charge :
(1.) " The onus is upon defendants to show a rescission of
their contract with plaintiff." On the contrary he charged
as follows : (After stating to the jury that it was admitted
that plaintiff was employed for the year 1878 by defend-
ants, and that the employment terminated before the end
of the year by reason of something which passed between
defendants and plaintiff, charged) ^^ that the onits was upon
the plaintiff to show by a preponderance of evidence that
he was discharged."
(2.) "If plaintiff was employed by defendants for the
year 1878, and before the year was finished they went to
plaintiff and used to him such language as, from its natural
and reasonable import, led him to believe that he was dis-
charged, and therefore to leave their employment, such
action on the part of defendants would amount to a dis-
charge of plaintiff whether the word ' discharge ' was used
or not."
The court charged as follows: "If plaintiff was sick
during 1878, the time he was sick would be taken into con-
sideration and deducted by you in fixing the amount due
by defendants, if any, unless the evidence showed that he
would not have been sick had he remained in their employ-
ment ; if this has been made to appear from the evidence,
then you would not deduct anything on account of such
sickness."
After verdict for defendants, plaintiff excepted and as-
signed error on each of the above rulings.
When the case was called in the supreme court, counsel
for defendants in error moved to disregard the assignments
based on the exceptions pendente Ute^ because the rulings
complained of were made at the fall term, 1878, of Fulton
692 SUPREME COURT OF GEORGIA.
Howud u. CtaambBrlln, Boynlon A Co.
BUpen'or court, tlie esceptiona pendente lite were tendered
to the jndge at that term, but were not filed in the clerk's
office nntil April let, 1879, the second day of the next term.
ConoBel for plaintiff in error responded as followa: Excep-
i\ompendente lite are part of record, and will be (*mid-
ered nnlees filing at first term ie eaaential to validity onder
statute; if so, no order of court can modify statute. Eot
exceptions were allowed filect after term in Walsh vt. Col-
quitt, governor, 62 Ga., 384.
The facts in regard to those exceptions appear from the
record as follows : Exceptions ^CTidenfe Ills were tendered
to the court. They recited the refusal of the court to dis-
miss appeals and holding interrogatories insufficient (at tbe
fall term, 1878), set out in the first part of this report, and
concluded thus : " And now during the term at which said
ntlings and decisions were made, comes plaintiff and ten-
ders this his bill of exceptions ^i^fu^^n^ lite, and prays thit
it may be certified and ordered of record as by law pro-
vided."
Upon this the judge signed the following order:
"I certify, that the above bill of exceptions (wilU the qualificWioD,
etc.) teDdered pendente lite ie true, and coDtniuH tiM the evidence mxta-
sarj to • clear understanding of tbe errom complaineil or, and 11 it
ordered that the same be placed on record to wait tbe Haiti IcnninVioD
of the case, as by statute provided. This January lOiL, 1876.
(Signed) Gbo. Hilltbh,
Ju^S. C. A. C"
Upon this waa indorsed this entry :
"Filed in'offlcethis lat day of April, 1679.
(Signed) J. 8. Hoi.mdat, C. S. C,"
Nothing more appears concerning the exceptions, except
that they are in the record, and are followed by the asnJ
clerk's certificate.
In the record, in advance of the exceptions pendenti lit^
appears this order :
"Wabhkn nowiiUJ, )
tw. V Appeals. Fulton Superior Oonrt-
Cbahbbrun, Bovnton A Co. )
■' On motion of plaintiff's attorney to strike from the finl tSn*
Judgments id the Justice court an interlineation of inierMl, oa lU
FEBRUARY TERM, 1880. 693
— - " —■
Howard v». Chamberlln, Boynton A Co.
ground that the same waa made after the judgments were rendered,
it appearing that in the first judgment the interlineation was made by
the justice after the entry of judgment, though later on the same day,
and that the other interlineations were made at the time of entering
judgment, it is ordered that the first be considered and deemed a nul-
lity, and as if no interlineation had been made. As to the others the
motion is overruled. On motion of the plaintiff's attorney to dismiss
each of the first five appeals, it is ordered that the same be overruled
and refused.
"Spring Term, 1879.
(Signed) Gbo. Hilltbb, Judge, etc."
" It appearing to the court that the order as above was taken at the
last term of the court, but omitted to be entered on the minutes by
accident, it is ordered to be entered nunc pro tune,
" Fall Term. 1879.
(Signed) Geo.\Hilltbb, Judge, etc."
It is to this order that the opinion refers when it speaks
of the order for recording being at the third term :
Jackson & Lumpkin, for plaintiff in error, cited as fol-
lows : Tendering at term, not filing, essential to exceptions
pendente Ute, Code, §§4250, 4254; Walsh vs. Colquitt^
governor 62 Ga.^ 384; 40 7&., 809, 322-3, 581.
Plaintiff fixes claim, and can waive interest, Cherokee
Lodge vs. White (September term, 1879) ; Dykes vs. Wolsey
(February term, 1879) ; 51 Qa., 194 ; 46 lb., 41 ; 58 Ih., 77 (1) ;
Oiles, ordinary, vs. Johnson (September term, 1879); 36
Oa., 599. Interest, in snch case, damages, and may be
waived, 2 Oa., 376 ; 1 lb., 469 ; 18 lb., 176 ; 1 lb., 40; 2
lb. 18; Bac. Abr. "Damages," D., 1 ; 2 Tuck. Com., 160;
2 Sannd. PL and Ev.,250 ; 3 Bing., 353, 358 ; 9 Price, 134;
2 Salk., 623 ; 61 Oa., 623. Contrast 58 Oa., 406. Inter-
rogatories sufficient, 41 Ga., 117; 26 lb., 332 ; 45 lb., 416.
Rescission of contract. Code, §§2859, 2860, 2758 ; 42 Ga.^
283. Misleading by language. Code, §2756. Omis as to
sickness, 61 6^a.,482 (1).
T. P. Wbstmobvland, for defendants, cited as follows :
Filing at term essential to exceptions. Code, §§4250, 4254;
40 Oa., 422, 423 ; Trustees Masonic HaU vs. Merchamti,
694 SUPREME COURT OF GEORGIA.
Homid tK. ChuDtmlln, BofnliHi A Oo.
etc., B<mk (Febrnary term, 1879). The amount to be paid
was fixed, interest mnst be added, and could not be waived,
Code, §§35T0, 2056 ; 66 Qa., 360; 61 75., 482 ; Decision
Febrnary terra, 1879, para., p. 27; 46 Ga., 41 ; 2 Ih., 312.
Cannot remit to give or deny jurisdiction, Code, §3760 ; 56
Oa., 494; R. M. Charlton, 298; 58 Ga., 77,406. Appeal-
able irrespective of judgments, Code, §4157. Consolida-
tion right, 45 Qa., 124.
Crawford, Justice.
1. The first question made before ns in this case is whether
a bill of exceptions pendente lite can be considered here,
when the same was neither filed nor entered of record at
the tenn of the court at which the exceptions were taken.
Section 4250 of the Code provides that at any stage of
the cause either party may file his exceptions, and if certi-
fied and allowed, they shall be entered of record.
Section 4254 further provides that the judge shall certify
thera to be trne, and order them to be placed on the record,
and that they shall be tendered during the term. Thus it
will be seen that the first of these sections simply gives
the right, and preBcribes tliQ r/ianner in which it is to be ex-
ercised; the second deelarce (he ihn-e when they are to be
tendered, and that is durini; the term. In this case the
record shows that the jnd^'c certiticd tlic exceptions at the
September term, 1878, but flut tliej' were not filed until the
spring term, 1879, and furttitr, that they wore not ordered
to be recorded until the f^ili tenn of the conrt for the year
1879, thus carrying them o\-(>r to the third term after they
had been made.
We think that the proper construction of these sections
of the Code is, that excejitions pendente lite should l>e ten-
dered daring the term, (rrlified to be true by the jndge,
filed by the party, ordered !■' ami entered of record at that
terra, and there await tbf fimil trial, and if brought to this
eonrt for alleged errors, tlien to be sent np and heard.
FEBRUARY TERM, 1880. 695
Howard w. Chamberlln, Boynton A Co.
And tliis we understand to be the ruling of this court in
the case of The Nacoockee Hydravlic Mining Company
vs. DaviSj 40 (?a., 322, 323. Nor is it .it ail inconsistent
with that of Walsh vs, Colquitt, governor, decided at the
February term, 1879, where the writ of error was dismissed
because prematurely brought, with leave to the defendant
to file the same bill of GHQ^^iion^ pendente lite to be heard
as provided by law in such cases. The real question con-
sidered by the court in that case being, whether he was not
premature with his exceptions, and not one where the party
had failed to avail himself of a remedy which he sought to
follow. But in that case the court, under section 4284 of
the Code, gave that order and direction therein, because
they believed it to be consistent with justice and law, as
provided by said section.
2. The other questions made by the record in this .case,
arise upon the trial bad between the parties at the September
term, * 879, of ten cases which had been appealed from a
justice to the superior court of Fulton county. Five of
those cases were returned to the September term, 1878,
and it was as to those cases that the bill of exceptions pen-
dente lite related, and which we cannot consider here for
the reasons above given. The whole number coming on to
be heard, plaintiffs counsel moved to dismiss each of the
last five, upon the ground that the amount claimed being
but $60.00 and the interest, which he disclaimed, they were
not such cases as to render them appealable. The court
overruled the motion to dismiss, and the plaintiflp excepted.
The suits were founded upon a contract made by Howard
with Chamberlin, Boynton & Co. to clerk for them during
the year 1878, at $50.00 a month. He only remained with
them January and February, and in March went into the
employ of J. W. Akers. The contract was not disputed
either as to the time or the amount to be paid ; it was for
$50.00 a month and for twelve months. Suits were
brought after the expiration of each month, and for the
contract sum of $50.00 as the amount due. The only
696 SUPREME COURT OF GEORGIA.
Howard w. Chamberlin, Boynton A Co.
question in issue seems to have been whether Howard
was discharged, or consented upon request to find other
and new employment, judgment was given in each suit by
the justice for the plaintiflp in the sum of $50.00 ; on the
question of interest the parties disagreed, the plaintiff dis-
claiming any, defendant denying his right to disclaim.
The magistrate decided that under the contract interest
was duo and rendered his judgment accordingly.
The question therefore made to dismiss the appeals de-
pended upon the right of the plaintiff to remit the interest,
thereby making the sum claimed only $50.00, and thus en-
abling him to defeat the defendants' right to an appeal.
All demands where by agreement or otherwise the sum to
be paid is fixed or certain, bear interest from the time the
party becomes liable and bound to pay them. Code, §2056.
This being a demand where by agreement the sum to be
paid was fixed and certain, bore interest ; and it was as
much a part of the claim as the principal, and could no
more be stricken therefrom to defeat a right of the other
party than the principal itself could be lessened to accom-
plish the same object. Had the suit been for damages for
a breach of the contract that would have been a different case ;
but the suits were on the special contract, and the interest
was attached to and inseparably connected therewith. The
plaintiff came into court electing to ask its enforcement,
and he could not escape its legitimate consequences. 22
G^a., 312; 58 /»., 406.
3. Another ground of exception to the ruling of the
court was the order consolidating these separate suits. All
the cases being between the same parties, arising under the
same contract, involving the same pleas, and upon which the
same verdict must be rendered, were properly consolidated.
4. The court on objection suppressed a set of interroga-
tories sued out by the plaintiff for himself, upon the
ground that one of the cross-interrogatories had not been
fully answered. An examination of the questions and an-
swers thereto shows the objection well taken. The inter-
FEBRUARY TERM, 1880. 697
Jonefl 98. The State.
rogatory contained a series of questions, bnt they were
upon the same subject matter, and though put in different
forms sought the same information, and that which was
necessarily within the knowledge of the party, and should
have been fully answered.
Where the party to a cause makes himself a witness in
his own behalf, he should be held to answer strictly and
minutely every interrogatory put to him of which he has
knowledge ; and if he neglects so to answer, or answers
evasively, Euch testimony should be rejected.
5. Exception was taken to the admission of Howard's decla-
rations to the witness Wood, wherein he said that he would
not stay with defendants if they would give him $100.00 a
month. It having been made in February before he left
their employ, it was certainly very proper testimony to
show that he preferred service to others rather than to de-
fendants, and that he was not forced to leave them.
6. The exceptions made to the admission of the evidence
of Akers, and the books mentioned, as also to the rejection
of the testimony of Hemphill, we think are not well taken,
and that the court committed no error in the rulings
therom complained of.
7. In view of the evidence as far as the same appears in
the record, the charge of the court and his refusal to charge
show no error, and the case must therefore be affirmed.
Judgment affirmed.
Jones vs. Thb Statb of Georgia.
1. The coDTiction of one charged with a crime as principal in the
second degree is contrary to law where there is no evidence of the
guilt of the principal in the first degree.
2. When the Judge of the superior court has approved the brief of
evidence and signed the bill of exceptions, he has exhausted his
powers in respect to tbe testimony. He cannot, by a certificate sub*
sequently made, alter the brief of evidence as approved.
698 SUPREME COURT OF GEORGIA.
JoneB vs. The State.
■--■ ■ ■- ■■■■■1^ ■ — .^-^ — »■ - —■ ■■ ■ ■!
Criminal law. Practice in the Saperior Court. Prac-
tice in the Supreme Court. Before Judge Crisp. Lee Sa-
perior Court. March Term, 1879.
Reported in the decision.
Fbed H. West ; Warren & Freeman, for plaintiff in
error.
C. B. Hudson, solicitor-general ; D. H. Pope; Hawkins
& Hawkins, for the state.
Warner, Chief Justice.
The defendant was indicted for the offense of murder,
and charged in the indictment as principal in the secoud
degree, Jackson Sellers being charged in the same indict-
ment as principal in the first degree. The defendant, Jones,
was tried separately, and was found guilty as principal in
the second degree. A motion was made for a new trial on
several grounds, which was overruled, and the defendant
excepted.
Que of the grounds of the motion was that the verdict was
contrary to law and contrary to the evidence. Upon looking
through the entire evidence in the record as approved by the
court on the 26th of April, 1879, it does not appear there-
from that there was any evidence of the guilt of the prin-
cipal in the first degree, either by the introduction of the
record of his conviction in evidence, or otherwise, upon the
trial of the defendant as principal in the second degree, nor
does it appear from the evidence in the record that the
principal in the first degree was guilty of the offense as
charged in the indictment. The counsel for the state dis-
covering that defect in the brief of the evidence as contained
in the record here, sought to remedy it by obtaining from
Judge Crisp a supplementary certificate, dated the 5th of
January, 1880, in which the judge certifies tliat the bill of
indictment against Sellers, the principal in the fiist degree,
FEBRUARY TERM, 1880. 699
The Commlnlonen of Bartow Ooonty t». Newell.
with the verdict of guilty thereon, waB in evidence before
the jnry on the the trial of the defendant, Jones, the prin-
cipal in the second degree. When the judge signed and
certified the bill of exceptions, and approved the brief of
the evidence, he had exhausted the power conferred on him
by law over the same, and could not, eight or nine months
afterwards, when the case was pending ya this court, sup-
plement his original certificate in the manner sought to be
done in this case It not appearing from the bill of excep-
tions, nor from the brief of the Evidence as originally signed,
certified and approved by the presiding judge, and duly
transmitted to this court, that there was any evidence before
the jury proving the guilt of the principal in the first de-
gree, the verdict against the principal in the second degree
was contrary to law.
Let the judgment of the court below be reversed.
The Commissionbbs of Babtow Couktt vs. NIcwell.
1. The Confederate congress was the legislative department of ^de
facto government recognized by all of the courts 6{ Oeorgia while
it lasted; and acts published by authority of that government, while
in dominion of the territory of this state, will be recognized by its
courts whenever they are necessary to throw light upon any litiga-
tion therein. The government being overthrown, and there being
no records by which to establish such acts, parol testimony of a
witness that he was a member of the Confederate congress, that as
such he became possessed of certain pamphlets which contained
the acts of that body, and that they were genuine, was sufficient to
admit the printed acts in evidence. Especially was such admission
not ground for new trial, where it does not appear that the com-
plaining party was hurt thereby.
3. Bonds issued by a county in 1802 for the purpose of raising money
for the support of the indigent families of the soldiers of the Con-
federate States were not in aid of tbe rebellion.
8. Where one who was a citizen of another state but was residing in
Georgia, and who moved north in 1863, left money consisting of
bills of local banks, in the hands of an agent for investment, and
the latter invested in county bonds, such a transaction was not ille-
YM-44
700
SUPREME COUKT OF GEORGIA.
The Ck>m]niiBionen of Bartow Coanty v». Newell.
gal within the meaning of the act of congress of 1861, which pro-
hibited commercial intercoarse between citizens of insurgent states
and those of other parts of the United States.
Evidence. Confederate States. Laws. Bonds. Connty
Matters. Contracts. Before Judge McCutohkn. Bartow
Superior Court. July Term, 1879.
•
In 1 862 Newell was residing in Georgia, though he claimed
Illinois as his home, and went to that state during the said
year. When he went away from Georgia, he left some
money, consisting of bills of the Central Railroad & Bank-
ing Company and the Georgia Railroad & Banking Com-
pany in the hands of one Howard, as his agent, for invest-
ment. In 1863 the county of Bartow issued bonds in or-
der to raise money for the support of the indigent and
needy families of the soldiers of the Confederate army,
who could not support themselves. It appears that there
was an ordinary pauper fund in the county raised by taxa^
tion, but it became inadequate, owing to the increase of poor
families resulting from the absence or death of men ih the
war, and this means was adopted of providing for such
families. Howard, as agent for Newell, purchased two of
the bonds so issued. On these Newell brought suit On
the trial, Warren Akin, Esq., testified that he had been a
member of the Confederate congress, that as such he be-
came possessed of certain pamphlets (tendered to him) and
that they contained the acts of that congress, and were gen-
uine. Upon this showing, two of the acts were allowed to
be read, dated April 16th, 1862, and September 27th, 186S,
respectively authorizing the president of the Confederacy
to call out for military service men between the ages of
18 and 36 years, and between 35 and 45. This ruling was
excepted to.
The jury found for plaintiflE $226.47-100 principal. De-
fendants moved for a new trial, which was refused, and
they excepted.
For the other facts see the decision.
FEBRUARY TERM, 1880. 701
The GommlMionerB of Bartew Gonnty iw. Newell.
A. J0HN8OK, for plaintifis in error.
Wabbrn Akin, for defendant.
Jaokbok, Justice.
Certain bonds were isened by the county of Bartow du-
ring the war between the Confederate and the (Jnited States,
in 1862, and this suit was brought against the county on
two of them ; the jury found for the plaintiff, and the de-
fendants excepted to the refusal of the court to grant a new
trial. The bonds were issued to support the poor families
of soldiers in the Confederate array, and the widows and
orphans of those who had died in the service.
Three points are made in the motion for a new trial —
first, that the court erred in admitting in evidence pamphlets
purporting to be acts of the Confederate congress without
sufficient proof; secondly, that the bonds are illegal because
given in aid of the Confederacy ; and thirdly, because the
plaintiff, as a citizen of Illinois, was prohibited from com-
mercial intercourse with the insurrectionary or insurgent
states by the act of congress of 1861, codified in revised
statutes of the United States, §5301, and the contract was
therefore illegal as to his right to recover on the bonds.
1. Mr. Warren Akin testified that the pamphlets con-
tained the acts of the Confederate congress, that he had
been a member thereof and got them as such, and knew
that the printed pamphlets were genuine. It is not shown
in the record what parts of these laws injured the plaintiff,
or in what manner the defendants were affected or hurt by
them under the ruling in 54 Oa.j 59, and therefore we would
not interfere to grant a new trial on this ground, even if
these laws or acts were improperly admitted. The party
complaining must show that he was hurt by the ruling in
order to secure a new trial on any given ground therefor.
But these acts were the acts of the congress of 9k de facto
government recognized by all of the courts of Georgil^
703 SUPREME COURT OF 6E0RUIA.
Tbe CommlMloam of Bartow Caantf m, NamlL
published by the mthority of that government white in
domioioD of the territory of this state, and will be recoj;-
oized by her conrte now whenever necessary to throw light
Dpon any litigation therein. The gavemment being over-
thrown, there is no retiord of thetn whereby they conid be
eetablisfaed by better proof ; therefore Mr. Akin's testimony
as to the genaineness of the printed pamphlets is as good
as conid be had, and in any view we can take the court id-
mitted them properly so far as the record discloses vhat
transpired, and in the anomalous condition of things which
exists, arising from the war between the stater and its con-
sequences.
2. In so far as the legality of the bonds is assailed be-
cause issued in aid of the suffering families of the living
and dead Confederate soldiery we need only say that the
qoeetiou is not open with us. It was settled in a case in-
volving this class of Bartow county bonds which is reported
in 54 Ga., b'i. cited above, and their illegality as being in aid
of the Confederacy was there held ansonnd and their bind-
ing force on the connty, so far as this point is concerned,
was upheld.
3. So that the single qacstion remains, does the act of
the United States congress iu 1861 prevent the plaintifs
recovery! That act is as follows : " Whenever the presi-
dent in pnrsnauce of the provisions of this title, has called
forth the militia to suppress combinations against the laws
of the United States and to cause the laws to be duly exe-
cuted, and the insurgents shall have failed to disperse by
the time directed by the president, and when the insurgents
claim to act under the authority of any state or states, or in
the part or parts thereof in which snch combination exists,
and such insurrection is not suppressed by such state or
states, or whenever the inhabitants of any state or part
thereof are at any time found by the president tu be in io-
enrrection against the United States, the president may, by
proclamation, declare that the uiliabitants of ^siicli state, or
gr>o*»irt '-*- section thereof, where sutli insurrection exists,
FEBRUARY TERM, 1880. 703
The CommiBsioDera of Bartow Cotin^ v». Newell.
are in a btate of insnrrection against the United States, and
therenpon all commercial interconrse by and between
the same and the citizens thereof and the citizens of the
rest of the United States shall cease and be nnlawf al so
long as snch condition of hostility shall continue^ and all
goods and chattels, wares and merchandise, coming from
such state or section into other parts of the United States,
or proceeding from other parts of the United States to snch
state or section, by land or water, shall, together with the
vessel or vehicle conveying the same, or conveying persons
to or from such state or section, be forfeited to the United
States," Rev. Statutes U. S., §5301.
The plaintiff seems to have been resident in Georgia and
mo^ed north in 1862, leaving Georgia state money, being
Central and Georgia Railroad bank bills, with an agent for
investment here ; and this agent invested these bills in the
bonds of the county of Bartow sued on now. We can see
nothing illegal or contravening the paragraph of the re-
vised statutes of the United States in the purchase of these
bonds by this plaintiff. The whole reason and spirit and
policy of the act of congress of 1861, re-enacted and codi-
fied as cited, was to prevent northern goods from coming
south 60 as to add to the material resources of the Confed-
eracy, and to prohibit southern produce from going north
to pay for these goods ; but it cannot be construed to apply
to a case where a northern man, resident here, returned
home, and leaving local funds here, which would have been
wholly useless and would have perished north, directed
their investment in something, and his agent put them in
these charitable bonds. The county ought to pay the bonds.
Judgment aflBrmed.
SUPREME OOtTRT OF GEORGIA.
Rhodbb et al., execaton, v». Neal.
K coDtract to pay one for the uw of hii influence in securing the con-
sent of B prosecutor to dlsmisa certtiin proiecutions for felonies is
contrary to public policy ; and a declsration wtiiclt seeks to recover
for services BO rendered is demurrable.
ContractB. Actions. Before Jadge Oi,lbx. Cit; Gonrt
of Atlanta. December Term, 1879.
Tbie cause wa« an action of aaaumpaU, bej^n in the city
court of Atlanta, by the plaintifffl, bb executors of Footer
Blod^tt, afi;ainat John Ncal, Jr.. for the recovery of $j5<i.('0
for services rendered to tbt; defeotiant by plaintiffs' testator
daring the months of August, September and October,
1877, in aecnring the consent of the anthorities of the
Nashville, Chattanooga and St. Louis Railway Company, to
the dismisBal of certain oriminai prosecutione pending in
the circuit court of Hamilton county, Tennessee, against
Wesley W. Neal.
The declaration was afterwards amended, and it was al
leged that on the 29th of September, 1877. W. W. Neal, a
brother of defendant, was under indictment iu the circuit
court of Hamilton county, Tenneesee, for the offenses of
larceny and frandaleot breacli of trust, committed by the
said W. W. Keal, while agent of the Nashville, Chattanooga
and St. Louis Railway Company, and in imminent danger
of conviction for said crimes. On the day aforesaid the
said W, W. Neal, having given bond for his appearance lo
answer said indictmenta, the defendant, John Ne.il, Jr.,
had deposited with the sureties upon the said appearance
bond, to secure them from loss, the snm of $2,0(il> On, and
having appointed Foster Biodgett hia attorney iu fact in
this behalf, agreed with the said Foster Biodgett that if the
said Biodgett would use his influence with the authorities
of the said railway company to secure the dismissal itf t|j«
said prosecntioDS against the said W. W, Neal, so much t
FEBKUARY TERM, 1880. 705
Bhodes €i a/., executors, iv. Neal.
the $2,000.00 as should be left after paying attorney's fees
and costs, should be the property of said Blodgett, in the
event the prosecutions were dismissed. It was further al-
leged that Blodgett, in pursuance of this agreement, pre-
vailed upon the authorities of the railway company to con-
sent to the dismissal of said prosecutions, and they were
dismissed, and of the $2,000.00 so deposited there remained
$750.00 after paying attorneys' fees and costs, which sum
of $750.00 the defendant, on November 12th, 1877, fraudu-
lently took possession of and converted to his own use, and
for which sum of $750.00 judgment was prayed.
To the declaration as amended, the defendant demurred
upon the ground that the cause of action therein set out
was a contract tending to obstruct the course of public jus-
tice in the state of Tennessee, and being such a contract,
was contrary to public policy, illegal and void.
The court sustained the demurrer, and dismissed the case,
and that judgment of the court is the error assigned.
CoNLET & Shumate, for plaintiffs in error.
A. B. CuLBEKSON ; £. N. Brotlbs, for defendant.
Crawford, Justice.
The plaintiffs in error sued the defendant in error to re-
cover $750.00 which they alleged was due to their testator
for services rendered in using his influence with the author-
ities of the Nashville and Chattanooga Kailroad Company,
to dismiss certain criminal prosecutions pending against
Wesley Neal, who was under indictment for larceny and
fraudulent breach of trust, and in imminent danger of con-
viction for said crimes. It was further alleged that -the
prosecutions were dismissed and that the said sum of $750.00
remained of $2,000.00 which had been deposited as se-
curity for the appearance of the said Wesley, and which
was to belong to plaintiffs' testator, after the payment of
the attorneys' fees and costs, but which the said VTohn Neal,
706 SUPREME COURT OP GEORGIA.
Prater «•. Cos §t al.
Jr., fraudulently took possession of and converted to his
own use.
This case was dismissed on demurrer in the court below,
and that ruling is the error complained of here. The cause
of action as set out in this declaration evidently shows a
contract tending to obstruct the oonrse of pnhh'c justice,
and being such a contract, was contrary to public policy,
and therefore illegal and void. It is alleged that the party
was under indictment and in imminent danger of being
convicted for larceny and a fraudulent breach of trnBt,aDd
being in that condition, the testator was to use his inflnence
with the prosecutors to have the same dismissed, and in
which he was successful.
If that is not a contract for the purpose of obstructing
the due course of public justice in its effort to punish crime,
one could scarcely be found. It is sufficient to defeat sach
a contract if there be a bona fide charge against one for
felony. It is a high requirement of public policy that fel-
onies shall be punished, and the law frowns upon any at-
tempt to suppress investigation. 39 (?a., 89 ; 3 KMy^ 176«
"Public morals, public justice and the well established
principles of all judicial tribunals alike, forbid the interpo-
sition of courts of justice to lend their aid to the enforce-
ment of such contracts." 4 Peters, 184.
Judgment affirmed.
Pbatsb '09. Cox et al.
1. Actual notice to an agent of any matter connected with bis agency
is also actual notice to bis principal, and is not merely constnictiTe
notice to tbe latter.
2. Section 3583 of the Code, wbicb provides that * 'when any penoo
A V has bona fide and for a valuable consideration purchased " realty*
^ and has been in possession four years, the same shall be discbarged
from the lien of any judgment against his Tendor, does not protect
V one who purchases with notice that the property is subject to tbe
lien of a judgment at the time of the purchase,
Crawpobd, Justice, concurred.
^**-'*^if. Justice, dissented.
FEBRUARY TERM, 1880. 707
Fnter w. Cox «/ a/.
Title. Fraud. Prescription. Statute of limitations.
Principal and agent. Notice. Before Judge MoCtjiohen.
Whitfield Superior Court. October Term, 1879.
Reported in the decision.
Shumate & Williamson, for plaintiff in error.
Johnson & McCamt, for defendants.
Wabneb, Chief Justice.
This was an action of ejectment brought by the plaintiff
against the defendants to recover the possession of a tract of
land therein described. On the trial of the case the jury,
under the charge of the court, found a verdict in favor of
the defendants. A motion was made for a new trial on va-
rious grounds, one of which was, that the verdict was con-
trary to the charge of the court and therefore contrary to
law, which was overruled and the plaintiff excepted.
It appears from the evidence in the record, that Prater,
the plaintiff's lessor, purchased the land in dispute at
sheriff's sale under an execution in his own favor against
Hiram Cox, Yamell, and Kincannon, which issued on a
judgment dated 17th December, 1868. The defendant, J.
P. Cox, purchased the land in dispute from Varnell, one of
the defendants in^. y^., through his father Hiram Cox,
another defendant infi.fa.j who acted as his agent in mak-
ing the purchase of the land in April, 1873, went into
the possession thereof, and claimed to have been in posses-
sion of the land for four years as a bona fide purchaser for
a valuable consideration, as provided by the 3583rd section
of the Code, prior to the levy of Prater's fi. fa. thereon.
The court charged the jury to the effect that if they found
from the evidence that Hiram Cox purchased the land as
agent for his son J. P. Cox, and he had notice of the exis-
tence of the judgment at the time of the purchase, that
would be notice to hie principal J. P. Cox, On the hear-
SUPREME COTTRT OF GEORGIA.
iog of the motioD for a now trial, the coart admitted that
the fioding of the jury was contrary to its eharpfe aa herein-
before Btated, bnt upon reflection had come to the concln-
6ton that its charge was erroneons ; that notice to the a^nt
was only cOTisPmctwe notice to his principal, whereas the
law required that he should have had actual notice of the
existence of the judgment, and refused the new trial for
that reason, and t)ie qneetion is whether the charge was
right or erroneons.
The 2200th section of the Code declares that notice to
the agent of any matter connected with his agency is no-
tice to the principal. This we understand to mean actval
notice ; that is to say, if the agent had actual notice the
principal had actnal notice. See 55 Ga.. 4t38. There-can
be no donbt from the evidence in the record that Hiram
Cox, who purchased the landasa^ntfor his son, J. P. Coic,
had notice of the jndgment lien upim it at the time of the
porchase.
Bnt it is said that notice to the ngent of J, P. Cox was
not sufficient to &£Eect his conscic;nce with moral fraud, as
heretofore ruled by this court in mJation tu a prescriptive
title to land, under the provisions of the 2683rd section of
the Code. That section requires that the adverse posses-
sion of land, in order to give a good prescriptive title, mast
be under written evidence of title for Beven years. But if
snch written title be forged or fraudiileut, and uotice
thereof be brought home to the cluitnanl before or at the
time of the commeucenient of his possession, no prescription
nan be based thereon. It is under thin pection of the Code
that this court has held that notice of the forged or fraudn-
lent written title must be such a^ to :iffect tiic conscience
of the claimant. Under the 35y;ld nection all the pur-
chaser has to show is that he is a l'on'i.jide purchaser of the
land for a valnable consideration jiid hiis been in possession
of it for four years, then he will hold it discharfced from
the lien of any judgment againnt (lie |>er8on from whom he
pnrchaeed. The statute does not require that the purchaser
FEBRUARY TERM, 1880. 709
Prater w. Cox ^ al.
shall be in posdession of the land for four years nnder lorit-
ten evidence of title as in case of a prescriptive title for
seven years. When the purchaser has notice of the lien of
a jndgment at the time of his purchase, the presumption is
that he purchases the land subject to that lien and assumes
the ripk. There is not necessarily any fraud in his pur-
chase ; all that can be said is that the statute will not run
in his favor when he purchased with notice of the judg-
ment, and why should it ? Perhaps he paid that much less
for the land, but whether he did or not that was his own
lookont. In order to be protected under the provisions of
§3583 of the Code the purchaser must purchase the land
without notice of the judgment at the time of his purchase,
have paid a valuable considpration for it, and been in pos-
session thereof for four years. 5B Oa.^ 617. In the view
we have taken of this case from the evidence disclosed in
the record, the charge of the court to the jury was right,
and it erred in overruling the plaintiff's motion for a
new trial.
Let the judgment of the court below be reversed .
CsAWFOSD, Justice, concurring.
The question dividing the chief justice and the senior
associate justice in this case is, as to the legal effect which
the notice of an unsatisfied judgment has upon the purchaser
of property under section 3583 of the Code. One holds
that the notice of the judgment lien prevents him from be-
ing such a honafide purchaser as to protect him against the
judgment after four years possession : the other, that he
may have notice and still purchase honmfide and claim the
protection of his title under a possession of four years.
Innocent purchasers of property for a valuable consid-
eration are always a favored class of suitors, and their rights
are protected both in courts of law and courts of equity.
They are protected even where their vendors' title was ob-
tained by fraud, and so too if they buy without notice of
710 SUPREME COURT OF GEORiilA.
Prater M CoxtiaL
an equity. Relief against wrong and f rand though granted
as between original parties and their privies, none is granted
as against bona Jlde "pxxTehaseTB.
Can there be a case found where a man with notice buys
property subject to a jud£:ment who ever expected or in-
tended that it should be sold to pay that judgment? It is
well known to him that It is liable to seizure and sale, nnlees
his vendor pay oflf the jft. fa.y or that there is other and
sufficient property to pay it, or that the creditor will not
proceed against it until the bar of the statute attaches.
Suppose his vendor deceive him, or that he was mistaken
as to the amount of property subject, and that the creditor
seeks to enforce his lien on the transferred property, would
it be a just reply to say that the purchase was bona Jide
and for a valuable consideration and therefore not liable?
Or, although he knew that it was liable, and that the amonnt
of property in the defendant's hands would be that mnch
less with which to pay off the^.ya., still it was not boagbt
in bad faith to the judgment creditor, as it was bought
fairly and honestly from the judgment debtor. The lessen-
ing of a debtor's asseta liable to execution by buying it,
with notice of the lien, is not such an act of good faith as
should protect the purchaser of those assets against the
execution, even though four years elapned before the levy.
For these reasons I concur in the judgment of the court
Jackson, Justice, dissenting.
For the reasons given by the majority of this court in
Sanders vs. McAfee et oZ., 42 (?a., 250, and also in my
own dissenting views in PhiUips vs. Dobbins^ 56 (7a., 617,
I dissent from the judgment of reversal and hold that one
who pays full value for land may be a bona fide purchaser
thereof, so as to free the land he so pays full value for from
the lien of a judgment against his grantor after four yetn
possession thereof, though he, by hia a|i^t or ttlMril^
had full knowledge of the judgment. Tlfdl||fli||Hli'^
FEBRUARY TERM, 1880. 711
Jones «t al. vt. Smith, governor.
bona fides with po88eB8iou fur four years. The mere kuow-
ledge of the judgment cannot be conclusive of bad faith.
That circnmstance may be rebutted by many things which
would show perfect good faith, but. I leave the argument
where, in Phillips vs. Dobbins^ I rested it.
Jones et oZ. vs. Smith, governor.
Josttoes Jackson and Crawford being disqaalifled on accoant of relationship to parties
interested,, Jadge Pottle, of the Northern Circnit, and Jndge Lawson, of the Ocmalgee,
weiP designated by the governor to preside in their places.
1. Where J. and bis securities entered into a bond witb tbe governor,
conditioned for tbe faithful performance of ttre diities of his office
as treasurer of tbe state, during tbe continuances bis office — that
term being four years ; and parol evidence was offered at tbe trial,
going to show that tbe bond was accepted by the governor as a tem-
porary bond, to be void when a new bond, witb new securities, was
executed, and when it appeared that tbe bond was absolute and
unconditional on its face :
Hdd, that the court did right in repelling that parol testimony, there
being no pretense that that testimony showed mistake or fraud on
tbe part of tbe obligee.
%. An executive ^arrant, issued by tbe governor to the treasurer as a
voucher for redeemed bonds of tbe state, is open to inquiry by the
courts, as to the good faith of tbe treasurer in procuring such war-
rant, when it is alleged in tbe pleadings that the same was procured
by the fraud of tbe treasurer. Especially is this so when tbe slate
sets up fraud upon its agent, the governor, by tbe treasurer.
8. An order of tbe presiding judge in appointing an auditor to investi-
gate accounts of the treasurer in this case, was a proper order.
4. Where an auditor is appointed to investigate accounts, he does not
exceed his powers in passing upon tbe legality of vouchers.
5. Where exceptions are filed to an auditor's report, it is tbe duty of
the presiding judge to submit the exceptions of fact to the jury
seriatim^ according to section 4203 of tbe Revised Code ; but if in
the opinion of tbe judge, several of these exceptions contain tbe
same subject matter, be may consolidate them into one exception,
in order to simplify tbe issues to the jury. Tbe condensation in
this case was not error, especially as it seems that no objection was
made at tbe time ; and the jury, in one of their special verdicts, did
consider them separately.
712 SUPREME C( )URT OF liEORGIA.
JoDM ft at, M. Bmltli, 2B*«roar.
6. When a case has beeo submitted to a Jurj, and after argumeot to
them has commenced, it is not error for the presiding Judge to allow
couDsel to re open the esse for the introduction of testimony, when
the attorney states in his place, that he thought that that testimony
was already before the jury, and if not, it was left out by inadret-
7. Where a jury, by the conitent of parties, is allowed to disperae after
making their verdict, and returns into court, it was not error in ihe
court to allow an alteration made, which alteration but eipreaaed
Ibe legdl meaning of llie finding. Especially was it not error in the
presiding judge in this case, where it appears that the alteration was
beneficial to the ptuintiffs in error.
8. There were no errors of the court in its rulings on the auditor's re-
port, and nil material errors of which the defendanis can complaio,
in the charge to the jury, as excepted to.
9. Where a case has been fairly submitted to a Jury on the facts, and
though the evidence was conflicting, this court will not disturb
the verdict when the presiding judge was satisfied therewitli.
In this case tlie pariips had the benefit of having the facts passed
upon both by an auditor and the jury. It would require a very
Strang case to disturb that finding. The verdict of the jury in this
case might have been either n ay, but it is not the province of Ibis
court to decide on which side ■'as the preponderance.
Bond. Contracts. Evidence, Governor. Consttta-
tional law. Auditor. Practice in the SDperior Coart.
New trial. Before Jiidf^ Hillteb, Fnlton Superior
Court. October Term, 1879.
The factB material to the qaeetions passed upon b; the
coort are stated in the opinion.
P. L. Mynatt; B. H. Hill; John L. Hopkikb; Hokb
SHrm ; J. L. Bitowir, for plaintiffs in error, cited on effect of
executive warrants obtained by Jones, 56 Ga., 674 ; 59 Ih.,
364 ; 1 Miss., 442 ; 7 Oa., «73 ; 8 fb.Ml ; 17 Ih., 23 ; 20
76., 795; 12 Pet., 524; 14 //).. 497; 17 H^.w., t25.
2^*4; 6 /J., 92. If execntive warrant may be liet asidi' for
fraud, facta must be alleged, 44 Ga., 38 ; 5S Id., 144. On
alteration of verdict. Code, g34y3 ; 55 Go... 067.
B. N, Ely, attorney-gential ; McCaj & Trippe, for de-
fendant, cited on effect of rrants 56 Oa., 674,
FEBRUARY TERM, 1880. 713
I
Jones et al. vs. Smith, goyernor. i
State not bound by laches of agents, 20 /J., 470; 2 /J., 150 ;
49 Mo., 243 ; 9 Wheat., 720 ; 11 76., 184 ; Brandt on Sure-
tyship and G., §474 ; 2 Hill, l75 ; 8 Paige, 541. On power
of auditor and effect of report, 59 Ga., 50 ; 56 lb., 264 ;
57 Ib.j 142; Cook va, Hovston County^ February term,
1879. Parol evidence inadmissible to show that bond was
not the regular official bond which it purported to be, S
6^a.,534; 13/*., 192; 43 /J., 423; 57 /i., 319; 55 lb.,
403; 53 lb., 18, 218, 575; 54 /i., 290, 586; 52 lb., 131,
44^; 4 76., 106; 30 lb., 271 ; 44 lb., 662; 59 lb., 851,
562; 52 lb., 149; 54 lb., 289; 56 lb., 31 ; 9 lb., 585; 1
lb., 583 ; 5 Wend., 187 ; 1 John. Ch., 425 ; 8 Cow., 543 ;
11 Iredell, 145 ; 1 /*., 303 ; 27 Gat., 614 ; 5 Ala., 65 ; 50
Maine, 36, 347; 1 Pet., 46 ; 3 How., 578; 11 lb., 162 ; 4
Wall., 185 ; 9 76., 83.
PoTFLB, Judge.
This case was a suit on a bond of John Jones, made and
executed on the 13th day of January, 1873, with John T.
Grant and C. A. I^utting as securities, payable to James
M. Smith, governor, conditioned for the faithful discharge
of the duties of his office as treasurer of the state, to which
office, as the bond reciter, he had been elected on the 11th
day of January, 1873, for four years fiom and after said
day of election.
The declaration alleged that the treasurer had broken his
obligation in many particulars. As some of these allega-
tions have been disposed of upon the trial below, and are
not here for review, it is only necessary to refer to those
which are in the record for our examination.
First, it is charged that when Jones took possession of
the treasury, on the 13th day of January, 1873. there were
therein certain bonds of said state which had matured prior
to that date, and had been redeemed, taken up and depos-
ited in said treasury for safe keeping, ae required by law —
then followed a description of said bonds — which said Jones
714 SUPREME COURT OF GEORGIA.
Jones €i ai. ««. Smith, goyernor.
subsequently falsely and frandnlantly pretended that he
had paid off, with the interest on them, namely : twenty-one
thousand and five hundred dollars principal, and one thou-
sand and eighty dollars interest thereon, and that he pre-
sented them to the governor as vouchers for said payment,
and had them covered by executive warrant, dated day
of 1874, and took credit for them in his accounts with
said state.
Second, that John Jones falsely and fraudulently pro-
cured an executive warrant for another series of bonds,
amounting to the sum of twenty-seven thousand five hun-
dred dollars, which had been redeemed, and deposited in
the treasury for safe keeping, and that he obtained a credit
also for that amount fraudulently in his accounts with the
treasury.
Third, that on the 30th day of November, 1874, he
falsely and fraudulently represented to the goveraor, that
he had paid off, with the money of the state, forty-three
thousand two hundred and sixty dollars of gold coupons
and fourteen hundred dollars of currency coupons, matured
on the outstanding bonds of the state, and by that fraudu-
lent means, had procured from the governor an executive
warrant for said sums, and afterwards got credit for tl^em.
These three items constitute the only issues here, as to
the liability of Jones.
When the case was called for trial in the superior court,
the securities, John T. Grant and C. A. Nutting, presented
pleas with three counts. Those pleas are, substantially,
that Jones was elected treasurer on the 11th day of January,
1873 — that the governor was anxious that he should take
charge of the treasury at once — that Jones was not prepared
to give his official bond at once, because of the absence of
his sureties. To meet that emergency, it was agreed that
Jones should execute a temporary bond with sureties, to be
held by the governor until he should make and deliver a
permanent official bond, and then to become void and of no
force — that, in pursuance of that agreement between the
FEBRUARY TERM, 1880. 716
JODM «t of. «•. Smith, goTenuHr.
governor and Jones, the bond sued on was made. It was
uiade by Jones and the securities to be held by the governor
until Jones should afterwards make and deliver a perma-
nent bond, then to be void — ^that the bond sued on was de-
livered to the governor, in pursuance of that agreement, and
accepted by him — that, afterwaids, in purguance of said
agreement, and in (satisfaction of the old bond, and in lieu
thereuf, and in obedience to law, on the 25th of Janu-
ary, 1873, Jones made his permanent ofiBcial bond, signed
by A. R. Jones, John A. Jones, Seaborn Jones, Batt Jones,
J. M. Russell, J. D. Waddelland H. L. Benning,a8 sureties,
which bond was tendered to and accepted by the governor
on the 25th of November, 1873 — that said last bond was
placed of file in the executive olBce, and that suit is now
pending on said bond against the securities. The pleas
also insist that no breach of said bond sued on occurred,
and if any official misconduct on the part of Jones took
place, it was after the making of the second bond.
The presiding judge, by an order which appears in the
record, referred the matters of account of said Jones to an
auditor. Tlie following is a copy of that order :
" Upon consideration it is ordered that James M. Pace, of the county
of Newton, be and be is hereby appointed as auditor to investigate the
accounts between the state and said John Jones, principal, during the
time covered by said bond; that said auditor may iubpcena witnesses,
administer oaths, and hear testimony upon any disputed facts, always
giving notice of his sittings to the defendants in said case or their so
licitors; that all interrogatories and depositions in said case may be
returned to the clerk and opened and handed to the auditor ; that he
report the result of his auditing of said accounts to this court by or dur-
ing its next term, and either party to said cause shall have fifteen days
after notice of filing said report to except thereto. July 1st. 1876.*'
The auditor made his report, to which many exceptions
were filed. The exceptions of law were disposed of by the
court, and those of fact subiuiited to the jury under the
charge of the court, the jury found for the plaintiff the
three items of liability charged in the declaration, aggre-
gating |92, 193.19.
V 64-45
716 SUPREME COURT OF GEORGIA.
Jonn 4tal M. Smith, goieroor.
A motion for a new trial was made on thegrnnnds stated
in the record, which motion the presiding judge overmled,
and the principal, Jones, and bis securities, Grant and
Nutting, each excepted.
1. The aesignmeiita of error which relate to the rnlings
of the court as affecting the rights of the eecnrities, Grant
and Nutting, will be considered first in order. The record
shows that all uf the pleas of the securities were demnrred
to b; their counsel, and that the deranrrer was sustained as
to one of them, but as it does not appear that this ruling
was excepted to, this court will only consider that question
made in the pleas, as it was raised on the introduction oi
testimony in support of the pleas.
In support of their pleas the securitiee offered themselves
as witnesses, proposing to prove that Jones, the treasorer,
applied to them to go on a temporary bond to be held by
the governor for the performance of his daties until a per-
manent bond could be executed by John Jones, his reiatiTM
and friends, and that they went with that nnderstandii]^ to
the executive office and signed and delivered this bond, and
when they so signed and delivered it they bo stated to
the governor that it was for the temporary purpose, and
was to become void when the permanent bond should be
made, delivered and approved, and it was so accepted by
the governor.
This testimony, when offered, was objected to by tlie
plaintiff and the court sustained the objection.
The question is, was parol evidence admissible to show
such an agreement made cotemporaneously with the bond
as to the liability of the eecurities ?
I\iri>l L-viilt^iifii is inadmipeilile to add to, take from,"'"
vary ii written cuutracl. Code, gSi757.
There la no ambiguity in the lannago of the bond. It
was absolute and unconditional on its face. It conformwd
precisely to the statntc. It obligated the principal to
discharge faithfully his duties during the term if
his utlicc, and that term specified tn the bond was tott
FEBRUARY TERM, 1880. 717
■ ■ . ■ I- ■ ■■ ■— — - — -*-
Jones 4iaLv9. Smith, goveraor.
years. The proof offered went to show that the duties
were to be performed only until a new bond could be made
with new sureties, and when that was done, this bond was
to be void. It did not propose to show fraud in any one
in the demanding or acceptance of the bond. It was argued,
and numerous cases were cited, to show that parol evidence
was admissible to show the non-delivery of a contract ; and
that when a writing purporting to be signed, sealed, and
delivered, was only delivered upon a condition, a condition,
for example, that others were to become co-sureties, parol
evidence is admissible to show the condition. The charac-
ter of such proof goes to the extent, and no farther, of show-
ing that there was not a complete execution of the instru-
ment. It would have been admissible in this case to have
shown that the bond was not delivered ; but the proof
offered goes beyond this ; it admits the delivery of the bond,
and seeks to engraft upon it a stipulation wholly inconsist-
ent with it. The obligors say in the bond that it is to last
for four years ; that during that time Jones is to faithfully
perform the duties of his office. They now propose to show
by parol that that was not the undertaking ; that the under-
taking was that when a new bond was made, this should be
void ; that their liability was for a short time, and not for
four years. There was no pretense that the parol stipula-
tion was left out by mistake, but the only reliance was
that the securities trusted to the parol promise as they did
in the case of Mwnsfield v%. Barber^ 59 6ra., 351. In that
case the security to a promissory note offered to prove a
parol cotemperaneous agreement, that he was to remain
surety for a short time. There being no allegation that it
was left out of the writing by mistake on his part, or by
the fraud of the other party, or that the parties intended
to have inscribed the omitted matter, the evidence was re-
jected. In this case the parties did what they intended to
do ; they made the bond, and relied upon the parol agree-
ment that its terms and duration should be different from
the clearly expressed stipulations in the writing.
718 SUPREME COURT OF GEORGIA.
Jonee «t al. v». Smith, goyernor.
We therefore agree that there was no error in excluding
the testimony. The coarts have been strict in enforcing
80 wise a rule of law in its relation to all writings. We are
not disposed to relax it, especially in a case like this, where
the highest pnblic interests demand that obligations to the
state, when rednccd to writing, should not be open to ver-
bal explanations.
2. The next question which we are called on to coneider
is that raised by exceptions to the auditor's report. Those
exceptions being that the auditor could not find against
Jones $21,500, and other amounts of like character, it ap-
pearing by said report that those bonds are covered by ex-
ecutive warrants, and said warrants being conclusive as to
the validity of all the vouchers upon which it is based, it is
not in the power of the auditor, or of the courts, to over-
haul the vouchers and determine the propriety of issuing
said warrants, or to charge back to the treasurer any amount
received by him upon eaid warrants.
This exception brings up the question of the right of one
department of the government to revise the discretionarj
action of the other, to state it in the language of the coun-
sel of the plaintiff in error.
We are at a loss to see how this action of the auditor,
and the ruling of the court upon it, impinges upon the fun-
damental law, that the three departments of the govern-
ment are to be kept distinct in their jurisdictions and func-
tions. The gravamen of this whole case is, that one of the
servants of the people has money in his possession which
rightly belongs to them — that a large amount of its re-
deemed bonds and coupons had been put into the treasury
for safe keeping after having l>een paid with their money—
that that servant, in fraud of their rights, took these bonds
and coupons to the governor, and fraudulently represented
to him that he had paid them with his money.
If the facts alleged, and as found by the auditor, are true,
the treasurer has in his possession vouchers which are false
and fraudulent. The state itself, who is the real party) u^
PEBJRIiARY TERM, 18S0. 119
Jones et al. v$. Smith, governor.
seeking to recover back th^ee snms of money obtained upon
false vouchers. Why cannot that be done? It is true
that the ifsnance of the warrants is an executive act,
but the governor himself, as the agent of the people, is
seeking to reclaim lost money obtained by a fraud upon
Ainiy upon what principle of law is the state concluded
from inquiring into the bona fides of this transaction %
The state cannot do a more solemn act than to issue a grant,
or the governor to pardon, and yet if a grant has been ob-
tained by fraud it may be inquired into and declared void
by the courts. A pardon, which annuls the judgments and
sentences of courtF, may itself be set aside for fraud. A
commission to hold an office is a solemn act of the govern-
ment, but the courts may inquire into the validity of elec-
tions and declare the commission void. So that we agree
that the auditor and the court had a right to inquire into
any alleged frauds going to show that the warrants obtained
from the governor by the treasurer were obtained by
fraudulent representations.
3, 4. When the order appointing an auditor was passed,
it was a rightful exercise of power by tlie chancellor. The
accounts were comph'cated, and it was a matter which could
only be investigated by skilled persons.
5. It is complained that the presiding judge did not sub-
mit to the jury seria^tvin the exceptions of fact made and
set forth in the record. It is undoubtedly the duty of the
judge to do so, as is required by section 4203 of the Revised
Code ; but, after carefully inspecting the record and com-
paring the exceptions, we are of the opinion that the con-
densation of several of them into one was a simplification
of the issues to the jury. When the order was passed con-
densing them it does not appear that any objections were
made to it, and while we do not decide that the failure to
do so at the time concludes them from urging the objection
here, yet as no objection was made, and it appears to have
been a proper exercise of discretion, and one beneficial to
the defendants, we are unwilling to sustain this ground of
error.
720 SUPREME COURT OF GEORGIA.
Jonei it ai. «. Bmiih, govBrnor.
6. After tha evidence had been closed, and one of the
counsel for the plaintiff was addressing the jury, he pro-
posed to put in evidence the contents of a box of coupone,
which he stated in liis place had been omitted by iuadver-
tance, and that he supposed had been olTered and admitteil.
The court did right to allow the ease to be ro-opened ; snch
a practice has long existed in the courts, and justice re-
qnired it to be done npon the showing made in this case.
7, After the jury had dispersed by the consent of the
parties and returned into conrt, an alteration of the verdict
was snggested and allowed to be made by the court. We
are clear that this alteration but expressed more clearly the
meaning of the jury, and one which was of benefit to the
defendants.
8, We find no errors in the rnlings of the court on the
exceptions to the auditor's report, and no material errors in
the charge to the jury.
9. The last ground in the motion for new trial is that the
verdict of the jury was contrary to the evidence. Aa be-
fore said, the vi;rdiet was only for the plaintiff the amount
of the redeemed bonds of twenty-one thousand five hun-
dred dollars — thou of twenty-seven thousand five hundred
dollars, and tlie gold coupons, amounting to about forty-
fonr thousand dollars. It was conceded in the argntuent
that the item of twenty-seven thousand five hundred dol-
lars was not a proper cliarge by the treasurer against the
state; bat he claims that the jury did not make proper
allowances to him in diminution of that item of indebted-
Upon the merits of the case we express no opinion. The
jury had before them the testimony of Alton Angierunl
his father, and also the testimony of the otBcers of lb*
Fourth National Bank of New York as to the shiprntnt.
payment and dejio^it of those bonds and coupons in the
state treasury, witli the testimony of Jones and othen-
They chose to believe that the bonds had been paid and re-
turned to the etate treasury, and that these bonds had been
FEBKUARY TERM, 1880. 721
WilllB V8, Meadon, execator.
charged up wrongfully by the treasarer against the state. In
this they are flupported by the aaditor. With the correct-
ness of the verdict we have nothing to do. It might be sup-
ported either way. Where a case has been fairly submitted
to a jury, it will require a strong case to authorize this
court to disturb the verdict upon the facts alone.
Judgment aiBrmed.
Willis vs. Meadobs, executor.
1. The mere recital in a deed that the land conveyed had been set apart
as a homestead, is not ground for its rejection as evidence of title.
The sale, though private, may have been for some one of the pur-
poses enumerated in the constitution of 1868 as authorizing a judi-
cial sale thereof.
3. Complaint for land cannot be maintained where the proof shows
title out of tne pLdntiff.
8. The abstract of title which, under the statutory form, takes the
place of demises, may be amended as readily and as often as under
the common law form a new demise might have been laid. But it
is not competent to amend such abstract by adding a new party
plaintiff, or by setting up a perfect equity in plaintiff's own
grantee.
4. Upon a motion for new trial, the whole record is before the court,
and if from that it appears that the plaintiff had no right to recover,
independently of any errors committed on the trial, the verdict
against him should not be vacated.
Homestead. Deeds. Evidence. Complaint for land.
Ejectment. Amendment. New trial. Before Judge
Spbbb. Newton Superior Court. September Term, 1879.
The abstract of title attached to the declaration in this
case was as follows :
"Mortgage from Harry Camp to Adams, Hopkins &
Co., dated 10th July, 1848, and registered 7th October,
1 848, covering the land sued for,
" Mortgage Jl. fa. in favor of I^mbeth Hopkins and
Francis T. Willis, survivors, etc., of Adams, Hopkins &
722 SUPREME COITRT OF GEORGIA.
Willi* H. MoMlan. eieentor, ~
Co., VS. Harry Camp. Judgment of foreclosnre 31t.t
March, 1854, ^. /a. isened 11th April, 1854, levied 20th
Jane, 1854, by Lewis Zachry, depnty sheriff, on the land
flned for, sold first Taesday in Angnat, 1854. to Francis T
Willia."
The defendant. Skinner, who died pending the »nit. held
nader a bond for titles from Tlioniat) Camp. Thomae
Camp held nnder a deed from Harry Camp and liie wife
The deed and the bond recited that tlie property covered
thereby had been set apart as a homestead lo Harry Caitip
a^ the head of a family. Upon thia groiiqd thoy wlto oh
jected to when offered in eTJdenue. The objection was
overrnled.
The evidence showed clearly that the title to the prop-
erty sned for was not in the plaintiff at the time of the
commeDcement of the suit, if it ever had liecn before ; that
whatever interest he bad ever had therein was transferred
by him before suit ; that whilst he had no knowledge of the
eoit having been commenced in his name, and had not an-
thorized it, yet apon being informed thereof he did not ob-
ject as he anderstood it was proceeding for the benefit of
the party to whom he had transferred whatever title he
had.
The jury fonnd for the defendant. The plaintiff moved
for a new trial becaose of the admission of the bond for
title and deed as above stated, and upon nnmerons other
gronnds not deemed material here.
The point as to the absence of title in the plaintiff aectn*
not to have been made npon the trial and it was insisted
that it conid not be considered as a ground for refnsing a
new trial.
The motion was overruled and the plaintiff excepted.
For the remaining facta, see the opinion.
Class & Page, for plaintiff in error.
J. J. Floyd, for defendant.
FEBRUARY TERM, 1880. 723
Willis 98. Meadore, exeeator.
Ckawfobd, Justice.
In / ngnst, 1854, the lands involved in this litigation were
sold under a mortgage fi.fa. in favor of Adams^ Hopkins <&
Co., V8. Harry Camp, and bought by Willis, the plaintiff
in error and a member of the firm, at $800.00 ; which sum
was credited on the jifa., and an entry thereof made by
the sheriff on his docket. No further action was taken, or
had either by the sheriff, the defendant \x\fi.fa., or the pur-
chaser. The defendant in fi. fa. continued in the unin-
terrupted possession of the land from the sale in August,
1864, to November 2Sth, 1870, and then sold it to Thomas
Camp, who sold it to John Skinner, December I7th next
thereafter.
On the 24th day of February, 1874, this suit was brought
in the statutory form to recover the land from Skinner by
Willis, the plaintiff in error. The defendant pleaded the
general issue and the statute of limitations, and the issues
thus made were found by the jury in favor of the defend-
ant, whereupon the plaintiff moved for a new trial, which
was refused and he excepted.
The legal questions which arise on this motion and which
must control the case are :
1. Whether a deed which in its recitals shows that the
land conveyed had been set apart as a homestead, should be
rejected as evidence conveying title? There are cases in
which such a deed should be rejected, as for instance, one
showing on its face that the sale of the homestead was made
upon a consideration other than those specifically enumer-
ated in the constitution. But the mere recital that the land
conveyed had been so set apart, would not ipso facto au-
thorize its rejection. It is provided in that organic law
which has been invoked against this construction, that a
homestead may be sold at a judicial sale to enforce a judg-
ment, decree or execution against it for purchase money,
labor done or material furnished therefor, money borrowed
and expended in their improvement, or the removal of in-
cumbrance thereon.
724 SUPREME COURT OF GEORGIA.
WlllIf0t.MeadDn, txecnMr.
If tlierefore a claim reeling upon any of these conatitn-
tioual exceptione may be euforced by law^ why may not
the parties tliemaelves provide for the discharge of each
liabihties without waiting to be forced by a judgment or
decree to comply therewith? Whatever the law will compd
a, man to do, that he may and should do without compulsion.
The ruling which we make in this case is not in conflict
with that made in RoberU et ux. vs. Trammel, 55 6a., 383,
for there, upon the very face of the deed itself, it was re-
cited that the consideration was not only without constitu-
tional warrant, but utterly subversive of all the rights in-
tended to be secured thereby. The mere recital therefore
of the fact that the land had been set apart au a homestead
would not, per se, authorize the court to repel it ae evidence.
2-^. Can the action of couiplaiut for land be maintained
where the proof shows the title out of the plaintiff? and if
not, may an amendment therettt be made by adding the
name of the true owner!
We think that it is hardly needful to say that a plaintiff
in ejectment must recover apon the strength of hie own
title, ae it has been bo long and so well settled by all the
authorities upon the subject. Under the act of 184-7, when
adopted as to the form of the snit, the plaintiff come* into
court asserting title in liimself, and if his abstract of title
is supported by proof iliiit lif iias it fiYnri atii/ o/' his grant-
ors it will be aofflci^int, l)ut if it is ghown that he has parted
with his title hie stntidiug in court is gone.
Where thecommoii luw form of ejectment ie adopted, the
plaintiff, John Doe, may lay as many deniiees us he pleaeest
and if heshow title Timlijr any one of them he can recover"
hot where title ie shuwn ont of all his lessors he loo must
fail. He may use t\\y iiiinit^s of any of his keaors without
their consent to maiiii:>lii hie action and by bringing his title
into them he cau reco>"i;r, and lie may add, by way of auuud-
ment, new demises whenever it is neoeaaary to maintain his
snit.
The statutory form eubetitutcs the abstract uf title and
FEBRUARY TERM, 1880. 725
Willis v«. Meadon, ezecator.
dispenses with demises, and the plaintiff may amend his
abstract as easily and as often as under the common law
form a new demise might be laid, and thus invoke the title
of any of his grantors to sustain his own. But to allow an
abstract to be amended by adding the title or setting up a
perfect equity in plaintiJTs own grantee would be violative
of both law and precedent.
4. It was insisted on the argument before us, that upon the
trial of this case in the court below, that there was no ob-
jection made by the defendant to the want of title in the
plaintiff as a ground for a verdict in his favor, and that the
same was not considered until the hearing of the motion
for the new trial when the judge refused the same, because
under the law and the evidence he could not recover, as he
had shown that he had no title to the premises sued for at
the time the action was brought.
The ground of error complained of is, that this objection
was not made at the proper time, and because it was ruled
upon when there was no opportunity to amend.
This would be so if the whole record were not before
the judge on the motion for a new trial, but as it is before
him, if it should appear thereby that under the law and the
evidence the plaintiff had no right to recover, independ-
ently of any errors committed on the trial, it would be his
duty to refuse it. Nor could the plaintiff have amended
this suit by adding a new party at any stage of the cause,
because it would have been a new plaintiff and a new cause
of action. In the case of Need vs. Robertson^ 18 Oa.^
899, it was held that *' an amendment to an action for land
brought under and by virtue of the act of 1847, which
amendment proposes to insert other plaintiffs, viz : the heirs
of the grantee, is not admissible." The same is reaffirmed
in 20 Oa., 659, 29 lb,, 320 and in the 52d lb., 639.
The judgment of the court for these reasons must be
affirmed.
SUrilEME COURT OF GEORGIA.
SlHHONB VS. OaHP.
1. The deciBiOD of the supreme court in thU case at the August term,
1878, is reviewed ami affirmed.
2. Where one vtho is liable on the face of an instTument asnaurety.
seeks to limit his liability as against a co-securltf who bu paid off
thefi.fa. foundi.'ii I hereon and is seeking cuntriliiiiion, by reason
of an nnderataniUng or agreement that he should only be liable as
last indorser, it must appeiir that sucJi limitation was known to the
co-fecurity nnd agreed to or ccquiesced in liy him.
8. The verdict is supported by the evideuce.
Principal and surety. Negotiable inatmmente. Con-
tracts. New trial. Before Judge Erwtn. Gwinnett Sd-
periot Court September Term, 1879.
The report in the decision, taken in connection with that
wlien tlie case wan iiere befure {Camp vs. Simmotis,
63d Gn., 73.) eontuine nil tlie material factB. It ie only
necensary to add that the court refused to charge the follow-
ing request of defendant's eonnae!, among iithera : * *
"If they (the jury") are satisfied from thi; evidence that one
of the indoraerfi refused to be iKtund only aa last indorser,
and there being no evidence that any other agreement WiiB
made, or any other understanding entertained by any of
them prior to the judgment in favor of Malthie, the le^al
presnmption of intention referred to by the enprenie eoiirl
is removed, and the intention of the parties as found from
the evidence should be enforced."
Winn & Simmons, for plaintiff in error.
Clakk & pAfK; N. L. IIirrcHiNs. for defendant.
Warnkk, Chief Justice.
This case came on for trial in the court below upon an
ieaue forme<t on an affidavit of illegality to an execution
levied on the defendant's property. On the trial of that
FEBRUARY TERM, 1880. 727
Simmons tw. Camp.
iesne the jury found a verdict in favor of the plaintiff.
The defendant made a moti-m for a new trial on the sev-
eral grounds therein set forth, which was overruled and the
defendant excepted. It appears from the record that on
the 22d of January, 1862, Steadiuan, as the agent of the
Gwinnett Manufacturing Company, executed the following
draft : " At sight pay to the order of William Maltbie two
thousand five hundred dollars, for cash, at seven per cent,"
which was addressed t^ N. P. Hotchkiss, treasurer, and ac-
cepted by him on the 22d January, 1862. This paper was
indorsed on the back thereof by N. P. Hotclikiss, Enoch
Steadraan, Merritt Camp, and James P. Simmons, in the
order in which their names are here stated, but was not in-
dorsed by Maltbie nor negotiated by him, behaving loaned
the money to the company and required personal security
therefor. Suit was instituted on said draft by the execu-
tora of Maltbie against the Gwinnett Manufacturing Com-
pany as principal. Hotchkiss, Steadman, Camp and Sim-
mons, aff indorsers. At the March term of the court, 1869,
the defendants (except Hotchkiss, who had gone into l)ank-
ruptcy) confessed judgu)ent to the plaintiffs for the sum of
$2,500.00, and judgment was entered thereon against the
Gwinnett Manufacturing Company as principal, and Stead-
man, Camp and Simmons, in the order named, as indorsers,
and execution issued theieon against the defendants in the
order as specified in the judgment. Camp paid off the^.
yi»., principal and interest, after it had been levied on his
land, and proved the same in bankruptcy against the estate
of Steadman for the full amount thereof, but the register
only allowed one-third of the amount $1,092.67. Camp
then levied i\\^fi.fa. on the property of Simmons to com-
pel him tv. pay his pro rata share of the execution as his
co-security, the Gwinnett Manufacturing Company being
insolvent.
This is the second time this case has been before this
court. When it was here at a former term and decided,
but two of the judges presided, and at the request of the
728 SUPREME COURT OF GEORGIA.
SimmiiucM. C'tmp.
plaintiff in error he was allowed on the present argnment,
as a matter of favor but not as a matter of Hgbl, to reciev
the decision made in this same case at the former term,
which decision was, that Simmons, by his indorsement of
the paper as set forth in the record, was liable thereon as
surety, and was also liable to his co-anrety to contribute hia
pro rata share towards the payment of the debt under tbe
statutory laws of this state. After a careful review of the
former decision of the court in this case in the light of the
reviewing argument, this court is unanimously of the opin-
ion that the former decision of the court was a correct and
sound exposition of the law as applicable to the facts of the
case, and do now reaffirm it.
2, The only remaining question in the case is, whether
there was any special agreement between Simmons and
Oamp, his co-surety, at the time Simmons signed the paper,
that he was only to be bound as the last indoreer so as to
take it out of 'the general rule as to his legal liability as
surety, and did the court properly submit that qaestiou to
the jury in it; charge? The court charged in relation to
this point in the (Miae, " that the jury, after considering all
the facts and circumstances in evidence, will determine for
themselves whether it is shown that, at the time of the
signing or writing their names, there was an understaudiug
and agreement known to Camp and assented to or acqui-
esced in by him by silence or expressly, that Simmons
should be liable only as last indorser." In view of the evi-
dence in the record there was no oiror in the charge of the
court, nor in refusing to charge as requested.
3. It is the unanimous jii<l;jTiieiu of tliis court, after a
most laborious examination <if tliii^ (-^hc, that the verdict
was right under the evidence ami tlit' law applicable thereto,
and could not well have been oiherwise, inasmuch as the
defendant was bound accordiTi^^ ro the legal effect of his
signature upon the paper as tu the otiier parties thereto (iu
the absence of any special contratr or :igreement with them
to the contrary at the time uf liii^ning it) whatever may
FEBRUARY TERM, 1880. 729
Milee A Co. et a/. V9. Peabody, admiaistrtitor.
have been his own private understanding of his own liabil-
ity when he put his name on the paper. The private un-
derstanding of the defendant as to his liability when he
signed the paper, cannot override, alter, or change the law
as to the rights of the other parties to it without their agree-
ment and consent, and especiallv as to a co-surety.
Let the judgment of the court below be aflBrmed.
Miles & Co. et al, vs. Pkabody, administrator.
1. Where questions of adyaacementg to heirs at law of a deceased, and
the amouQt due to each, and the claims of the creditors of the estate
and one of the heirs, by attachment and otherwise, and their priori-
ties, all had to be determined before an administrator could move
safely in disposing of the estate, a bill by bim against the heirs and
creditors for direction and distribution was not without equity.
2. A claim by one not a lawyer or rounsel for an administratrix, for
clerical assistance to her in making out her returns, is not to be
allowed out of the estate of the deceased. The law contemplates
that such duties as ordinarily devolve on the administratrix herself
will be performed by her; if she needs assistance, she should pay
for it out of her perquisites. Especially is such claim not to be al-
lowed when made by one as heir at law of the person rendering
such assistance, and not as his administrator.
8. While generally a life tenant should provide means during her life
for her own burial, and the remainder would not be technically
chargeable with the expenses thereof, yet where a husband left by
will a life estate to his wife, with remainder over, and the reason-
able construction of the legacy, from its liberal provisions for her,
would indicate that the husband intended that she should live com-
fortably and be buried decently, expenses necessary therefor will be
allowed out of the estate as superior to the claims of remainder-men
or their creditors.
4. Costs due the ordinary in the administration of the estate are a
proper charge thereon, to be paid before distribution among the
legatees, or before the claims of their creditors can take the property.
5. Where one of the children of a decedent furnished a wagon to the
administratrix, who was his mother, for the use of the estate, and
it was so used, an heir who assented to such an arrangement, would
be estopped from objecting to the payment of tho debt so contracted,
and his creditors seekmg to subject his distributive share of the
730 SUPREME COURT OF GEORGIA.
Miles A C: 0t al. ««. Peabody. administrator.
estate would only be subrugated to bis rights* and would likewise
be, estopped.
6. One creditor of an heir of a decedent took out letters of administr*-
tion and sought to secure payment of the indebtedness, which was
in the form of a judgment from the state of A.labama. Other credi-
tors levied attachments, by garnishments, upon the undistribattjd
share of the common debtor in the hands of the administnitor. He
filed a bill for direction, etc. :
Held, that there was no error in ordering the claims to be paid pro rata,
there not being enough to pay all. Interference with the regular
course of administration will not be encouraged, if allowed at all.
by giving preference to creditors who attach the share of a dis-
tributee in the hands of the administator before the admiaistration
has been completed.
Equity. Administrators and executors. Estates. Wills.
Husband and wife. Contracts. Before Judge Cbawfobd-
Muscogee Superior Court. May Terra, 1879.
John R. Dawson died testate in 1859. His will provided,
among other things, that certain described property should
be kept together, except so far as was necessary to divide
it for the purposes named ; that his wife and children shoald
be amply and liberally supported out of the proceeds and
profits thereof, and the children educated ; that as each child
should become of age or marry, the executor should give
him or her such portion of the estate as he might deem prop*
er, approximating the distributive share of such child, bat
reserving a final settlement until the youngest child should
become of age or marry; that in making such advance-
nients the executor should reserve a proper and liberal
support for the wife during her natural life, and, should
she re-marry, she should have a child's part.
The brother of testator was appointed his executor. Tes-
tator left a widow, Jane A. Dawson, and five children.
The executor resigned, and the widow was appointed ad-
ministratrix with the will annexed. Two of the children
died, one leaving minor heirs, the other childless. Varions
advancements were made to the children, and at the
opening of this litigation nothing seems to have been
FEBRUARY TERM, 1880. 781
MUm 4; Go €tal.9$. Peabody, administrator.
due to any of them except two, Mre. Gray and John F.
Daweon. The administratrix died, and McGough was ap-
pointed administrator de bonis non. The land of the de-
ceased having been sold, and the money being ready for
final distribution, the administrator filed this bill for direc-
tion, etc. The heirs, certain creditors of the estate, and
creditors of John F. Dawson were made parties.
Those claiming as creditors of the estate, to be paid be-
fore distribution, were as follows :
(1.) Mary Johnson, as heir at law of her deceased father,
claimed that $50.00 should be paid to her, wliich was due
to her father for services rendered the administratrix in
making out her returns.
(2.) B. F. Coleman claimed $30.00 for walling up a vault
in which the widow of testator was buried, she having em-
ployed him to do such work before her death.
(3.) The ordinary claimed $30.00 for costs due him in
connection with the administration of the estate.
(4.) Henry K. Dawson, one of testator's children, to whom
advancements had been made covering about all of his
share, claimed that the administratrix had agreed with him
that if he would let her have a wagon and pair of mules for
the use of estate he should share in the final distribution
equally with the others, they agreeing thereto ; that the
wagon and mules had been turned over to her, and used
for the benefit of the estate.
[On the trial the evidence failed to show an agreement
by the other distributees to have Henry R. share with them,
but did show knowledge by them of the use of the wagon
and mules furnished by him to the estate, and acquiescence
therein. Also, that in allowing advancements etc. returned
by the administratrix, the ordinary had held the value of
the property to be a valid claim, for which Henry R. should
receive credit in the final settlement. Their vulue was
proved on this trial to be $350.00].
(5), Thornton & Grimes had a claim for attorneys' fees,
which was not contested.
VM-46
732 SUPREME COURT OF GEORGIA.
Ullr-JSCo.^nJ. lu. Pmbody, odmliKBtnitor.
When the question of payment nf tlieec claims eLould
be determined, no further contest was made in re^nj to
the share of Mrs. Gray. For tlie share of John F. Dawson,
three of his creditors were contesting, each claiming priority
of lien on the fund :
1. McGough & Co., of which firm the administrator rff
/nmw non was a member, claimed by virtue of a jndgment
rendered in Alabama on a promieeory note.
a, 3. Miles & Co. and Fraser & Co, claimed by virtne of
atlaclimentB against John F. Dawson (he being a non-resi-
dent) which had been levied by garnishments served on the
administrator.
The court rejected the claim of Mary Johnson, and al-
lowed the claims of Coleman, the ordinary, Ifenry B. Daw-
son and Thornton & Grimes. The distributive share of
John F. Dawson nut then being sufficient to pay off the
other claims, the court ordered it to be distributed to them
j/io raid. Miles & Co. and Mary Johnsou, excepted.
J. T. Noku&n; J. M. Rusbell; Thomas & Coleuah,
for plaintiffs in error.
I'KABonY & Bk&nnon; J. F, Poi;; Thornton & Gkiukb,
foi defendant.
Jackson, Justice.
MeGou^h, as administrator de ioi'lji nun with the will
annexed on the estate of John R. Duwsiiti, brought a bill
for direction and distribution against tliy heirs and creditore
of the estate of decedent, and the (^rcditore of one of the
heirs, John F. Dawson, who had aoirii; of tiiern Pcrved pro-
cess of attachment by garnishing ilif administrator, John
F. Dawson being a non-resident of the i^tate of Georgia-
Thc entire case, fact and law, was submitted to the chan-
cellor withont a jury by consent, lie niude a full decree
thereon, and to that deci-ee Mary J'>iinsi>ii, as one of the
creditors of the estate, and Miles & Co , as attaching credi-
FEBRUARY TERM, 1880. 733
Miles & Co. 4i a/, tw. Peabody, administrator.
tors of John F. Dawson, excepted, and their exceptions
brin^ the ease before as. McGough died pending the case
here, and Peabody was made a party as administrator £?« Ixmis
non cum testa^nento aniiexo in his stead.
1. Some objection was made to the equity of the bill,
but a mere statement of the facts will show that the eqnity
of it abounds. Qncbtions of advancements among the
heirs at law of the deceased and the amount due to each,
and claims of creditors of the estate proper and their valid-
ity, had to be adjusted, and then claims of the attaching
creditors and other creditors of one of the heirs and their
priorities, had to be ascertained and adjudicated before the
administrator could move safely in disposing of the estate.
So that, to use the figure of my late able associate. Judge
Bleckley, the cause revolved around two centres — the one,
John K. Dawson, deceased, whose heirs and creditors were
contesting for the spoils which were heaped in that greater
centre, and attracted them ; and the other, John F. Dawson,
an insolvent heir, about whose smaller pile his creditors
hovered, drawn thither by a like attractive force. To
divide either pile so as not to involve the administrator in
danger and loss, the interposition of chancery might well
be invoked, and to distribute both according to law made
the task more difficult, and necessitated the aid of equity,
on its general jurisdiction of all mattera of trusts, as well as
"that which arises from a state of things which would mul-
tiply suits and waste both heaps in expenses and costs.
The case therefore actually abounds in equity, and was
rightfully held in court and adjudicated so as to settle the
conflicting intei'ests.
First let us see how the estate was divided among the
creditorjy, and after they were paid, amo!ig the lieirs, and
next how the share of John F. Dawson was divided among
his creditors.
2. The claim of Mary JohnsoTi, who petitioned for the
allowance of a debt due to her father from the estate of
deceased, was rejected, and she excepted thereto. She
734 SUPREME COURT OF GEORGIA.
— - - — ■■ - ., - _ ■■ _ —
Biiles A Co ^al.vt Peabodj, admiDtotrator.
comes in as the beir at law of her father, who rendered ser
vice to the widow in makinu^ oat retaros for her as former
administratrix, bat the father of Miss Johnson was not of
coansel for the administratrix, nor was he a lawyer; and
if Miss Johnson had been before thecoartas adminifitratriz
on her father's estate, we hardly think she coald ha?e re-
covered for the mere administrative and clerical duty of
making oat retnrns. The administratrix shonld have pud
these charges oat of her perqaisites or per centam of com-
missions, given her for this among other purposes. We do
not think that section 2546 of oar Code, which allowed the
administratrix to employ labor or service for the benefit of
the estate, was intended to apply to any daty which de-
volved ordinarily apon the administratrix herself. It is
codified from the act of 1865-6, and has reference mainW
to laborers on farms, and the like service — certainly not to
that labor or service which the law devolved on the admin-
istrator himself. Besides, Mary Johnson had no standing
in conrt, and a decree for her woald not have barred a snit
for the same matter if administration were taken oat on
her father's estate ; nor is it claimed that this claim was
ever assigned to her to prosecnte ander section 2536 of oar
Code by any regalar administrator.
3. The coart allowed a charge of thirty dollars for a
vault in which to inter the remains of Mrs. Dawson, the
life tenant of the property, the proceeds of which, sold after
her death, were being distributed, and to this raliug Hilei
& Co. excepted. Whilst it is true that the life estate of
Mrs. Dawson terminated the moment that the breath left
her body, and then John F. Dawson, one of the children
and heirs of her husband, had the right to enter in remain-
der ; yet, as that husband by will had provided for her lib-
erally, intending her to live as his widow should, and to
pass to the death- bed decently, as the relict of a man of
property, and as this money was spent or labor expended
to give her decent interment, we cannot think that the will
of the testator was violated when her burial expeodte were
t'EBRUARY TERM, 1880. 735
Miles A Co. et al. vt. Peabody, admlniBtntor.
paid out of the proceeds of that property which until her
death she had enjoyed. Whilst as a general rule the life
tenant should unquestionably provide while living out of
the rents, issues and profits for burial, we do not think tiiat
the rule should embrace a case where the entire distribution
turns on the will of the testator, and. that will should be
construed, if possible, so as to carry into effect his inten-
tions, and it is no strain to say that his intentions were not
only that his widow should live comfortably, but be buried
decently. It certainly would affront all ideas of civiliza-
tion, to say nothing of Christianity, to allow heirs at law,
who become entitled to the remainder when the mother
dies, to debar her from decent burial, if she did not chance
to lay up enough from her income from the life tenancy to
insure it ; and we do not believe that creditors of such
heirs in such eases should be permitted to occupy any
ground on which their debtor could not fairly and uprightly
stand. Inherently, in such a case, burial of the body of
the life tenant adheres to, and is part of, the legacy for life
given by husband to wife.
4. The ordinary was entitled to his fees and they were
properly awarded to him.
5. Payment to Henry R. Dawson was properly awarded
for a wagon and team furnished the estate during the ad-
ministration of the mother, and to which the heirs at law
assented. John F. Dawson having assented thereto, he can-
not now complain that this amount was allowed to his
brother for a wagon and team actually worn out in the service
of the common estate, and thus increasing its income and en-
hancing its value. The creditors of John F. Dawson must
stand in his shoes and take that only which he could legally
claim, unless there had been some charge of fraud or collusion
between him and his brother, of which there is no pretense.
As 1ie is estopped from objecting to that debt which was
incurred by his mother when administratrix de bonis non by
his acquiescence, his creditors are also estopped in so far as
they seek to collect their claim out of his undistributed share
of his father's estate.
736 SUPEEME COURT OP GEORGIA.
Mll«s A Co. tt al. vf. P«bodj. adnilnlimtCT.
6. Tlie onij heire entitled to a share, after pajing credi-
tors, are Mrs. Gra^ and John F. Dawson, tlie ineoWent heir,
whose inheritance iB in controversy among his creditors;
Mi's. Gray's share was awarded to her, about which there i«
no controversy ; leaving the share of John F. Dawson to
be disposed of. Tliree creditors contended for payment
out of it ; tliere was not enough to pay all, and the chan-
cellor directed tliat each be paid pro rata ; and to this de-
cree Miles & Co, excepted.
There is no controversy that all are honest and honafid^
creditors of John F, Dawson. McGongh & Co., of which
firm the late administrator was a member, claimed a defft
on a note sued to judgment in Alabama, and tlie bill proved
that the administrator be allowed to retain enough to pay
that debt; Frazer & Co. and Miles & Co. claimed by vir-
tue of attachments levied by summons of garnishment on
the administrator, McGougb ; and the qnostions to be de-
cided by the chancellor were, who had priority, if auybodjt
and how should the fund be distributed? The chancellor
ignored the Ak[>aina judgment, as entitled to priority, prop-
erly perhaps, because it was not a judgment in thid state,
and had no lien here; it was conclusive evidence of debt,
and that is ae much as can well be claimed for it. Hov-
ever that may be, McGongh & Co. do not except.
The chancellor ignored, also, the claim of Miles & Co.,
on their attachment, because it had not been prosecuted to
judgment; the administrator had arrested it by thiBbill;
and in equity it had no preference over McGougli & Co.,
because that firm could not well garni^liee one of thenisehd
as administrator of the estate. The fact is that the adiiiin-
istrator, or tlie firm of which he was a member, were M
vigilant as Miles & Co. — more ao, indeed, as one of tliero
administeiiid to secure tliL'ir debt, before Miles' & Co. served
the garnishiiieiit upon the administrator, and thcrcbj at-
tached the fund. Shall one creditor, who holds the ;"«[►■
erty of a common debtor, turn it over to pay another erwl-
itorof equiil merit i-ven.al Ihh i>wii loss! Will equity tnilce
him do so 'i We can hardly think so.
FEBRUARY TERM, 1880. 737
Williams, administratrix, rs Joter.
But it may be said that there was another attachment
levied by Miles & Co. on the land, the proceeds of which
are for distribution, or on the interest of John F. Dawson
therein, and that was reduced to judgment and has priority.
It is enough to reply thai such attachment is not set up in
the pleadings — neither in the bill nor the answer of Miles
& Co. Even if it had been, its lien was not lost by the ad-
ministrator's sale, if, indeed, it had any ; because that sale
only divests the lien of judgments not levied, and attach-
ments would perhaps stand on the same footing if levied,
and afterwards regularly reduced to judgment, 58 Ga., 4i)l.
But apart from all this, the regular administration of an
estate will not be interfered with, or interference therewith
will not be encouraged, if allowed at all, by giving prefer-
ence to attachments of the undistributed shares of the heirs
at law — resting in quasi remainders, after all debts are paid.
Even the process of garnishment is allowed to issue only
with caution and on teriiiS, Code, §§3555, 3556, and within
twelve months from administration, not at all. 28 Ga,^ 300.
Looking at the case in all its bearings, we cannot gee how
Miles & Co. have been hurt by the decree which divided
the share of John F. Dawson pro rata among his creditors;
and taking the decree altogether, we think that it accords
with the equities of the case as made by the record.
Judgment atfirmed.
Williams, administratrix, vs. Jetkr.
1-2. The verdict was unsupported by the testimony.
3. Whilst as a general rule it is a correct principle that if one is em-
ployed for a stated term, and he does not compi}' with his contract,
then, within a reasonable time after knowledge of the fact the
employer must discharge him, or give him notice of his failure to
comply, yet where, on account of the nature of the business or
other circumstances, the employer was not present and it is proba-
ble knowledge of the non-compliance was not promptly had, it
would be proper for the court to present that view to the jury, and
its effect upon the respective rights and liabilities of the parties in
connection with the rule as above stated.
788 SUPREME COURT OF GEORGIA.
WUliuui, Bdniliilnntrix. m. JMet.
New trial. Contract. Master and eervant. Charge of
Coart. Before Jndge Hood. Baker Superior Court. No-
vember Term, 1879,
Reported in the opinion.
D. A. Tasok ; Stbozbk & SurrH, for plaintiff in error.
No appearance for defendant.
Obawfoed, Jnetice.
The defendant in error brought enit against Smry C.
and Mary D. WiUiamt as the administrator and adminia-
tratrix of Renben Williams, deceased, to recover $493.97,
which he alleged was \\w h;ilLUi<re due him ni ^1000.00 f.>r
his services in the ISV^i as an nvereeer and euperiiiteudent
of two plantations belonging to the said estate. Under the
evidence and the char^'u of the court the jury gave him a
verdict for the snm claimed. The plaintiff in error, her
co-ad Diinistra tor having died, sought a new trial on acconnt
of the errors claimed \n have been committed bj the court
and the jurj, which was refused aud she excepted. They
were;
1. Because the jnrj found contrary to evidence and witli-
ont evidence.
2. Because they found contrary to the charge of the
court in this, "that tiiey must be satisfied what the con-
tract was, and that it was fully performed on the part of
the plaintiff."
3. Becanse the court erred in the following charge : "Aa
a general rnle if a man employe another ayear, or any other
time and he does not cuniply with his contract, then, within
a reasonable time aft(-r such knowledge, he mnst dischaige
him, or give him notice that he is not complying with hia
contract, and you are to consider whether they did thw or
1. This plaintiff came into cocrt claiDiing a verdict oO'
FEBRUARY TERM, 1880. 739
WilliAni, adminlfllmtrlx, m. Jeter.
der a contract set oat in his complaint, and to entitle him
to recover he must come also with sufficient proof to estab-
lish his demand. The testimony as shown by the record is,
that he was by his contract to famish the hands and super-
intend the two plantations for the year 1873 belonging to
the estate. It was necessary therefore for him to show that
he had complied, first by getting the requisite number of
hands, and second, that he superintended the places according
to his agreement. The testimony does not show that he
did either, on the contrary it appears that a sufficient num-
ber of hands to cultivate the places were not furnished,
and that his management was unskillful and damaging to
the owners. We think therefore that the jury found con-
trary to the evidence and without evidence.
2. The second ground of the motion for a new trial is
disposed of by the ruling on the first
3. As there is to be a new trial in this case and the. com-
plaint of error alleged in this ground will be again before
the court, we rule upon it. This charge of the judge was
intended no doubt to cover cases where the employer and
the employe are, or ought to be, in such communication as
to put the former in possession of the information that the
latter is not complying with his contract. This is not a
parallel case to that of a clerk, or one who is in daily con-
tact or under the observation of his employer. The duties
of the plaintiff were to be performed upon the plantations
of an estate, and whilst the representatives of that estate
are bound to give attention to its interests and are charged
with notice as to how it is managed, yet the evidence in this
case discloses the fact that the administrator was in poor
health and died during the year or shortly thereafter, and
there is none as to the proximity, or the opportunity on the
part of the administratrix to have been informed of the
facts, or that it was not under the direct management of the
administrator. We think that the charge assumes the pres-
ence and knowledge of the defendants that the plaintiff was
in default : when really the circumstances of this particular
SUPREME COURT OF GEORGIA.
case mi^ht take it oDt of the general rule, and perhaps did,
for there was evidence indicating socU a state of things,
and the defendant was clearly entitled to have had tlut
view of lier rights presented to tlie jnrj in connection with
that obhgation which the charge put upon her.
The judgment must therefore be reversed.
Wai,bh et <d. vit. CoLQDiTT, governor.
1. Where Bait nas brought on n bond in the county of the residence nt
Ibc principal, against him aad tno securities residing in other
counties. Ui wbicli all parties appeared and pleaded, aod ttie princi-
pal baviog died, bis dentil was suggested, and an order taken allow-
ing ttie case to proceed as to tbc securities, a plea to the Juriidic-
lion filed by tliem was properly overruled.
2. The bond of a public printer was conditioned for his faithtul per-
formance of " all and singular tlie duties prescrll)ed by the laws of
Georgia appertaining to said office of state printer for and during
Ibe term for which he has been elected." At the time of iis execu-
tion the taw regulating his componaation was as follows: '■ If said
printer shall legally and faithfully perform his duties, h- shall be
compensated as follows: He shall be paid tweolj-flTC per cent on
Ihc actual cost of Ibe material and bibnr employed in the piiliUc
printing; provided that before bi'iujj; puid he sbnll make out an xc-
count on ontli of the actual coat nf tlie mnlcrial and labor employe"'.
stating that said account is corrcci snd just, and that the prices
paid are not above the customary rates for similar work and mal<^
rial when employed in the serviee »r privalt- parties 10 do a like
amount of printing." After th<} cxoculton of the bond llie legisl*-
ture. by resolulion, authorized tlii' irensurer to advance to the stute
printer $5,000 00 in part payment for the public printing of theuM-
sioQ then pending:
Held, that this was such a novation ii[ ibe contract as disebargeil the
sureties if done without their cons''ni.
3 Alston, the public printer, was insolvent: be bad misappropriated
^,000.00 of tbc public funds ndviiuced 10 bim, and lind becnmo 111-
Ide for liquidated damages anxiiinting to |>8,000.00, in adjitjon.
The govertior, as agent of the »lMi:. receivL-d $1!)8,028 98 fnnu »
claim of the state against the Unitr-il Stnies He did not deposit all
of it in Ibe state treasury; hut. mil of ibe sum so col|pct«cl. pall)
tu Ibe use of Alston |1S,000 at a k't.' iu connectiou with said ctttini.
FEBRUARY TERM, 1880. 741
Walsh et al. vs. Colqnitt, governor.
The indebtedness of Alslon to the state whs not reserved out of this
amount:
JSdd, that such aciion Increased the liability of the sureties on A1ston*s
bond, and thereby discharged them. If the governor had paid the
money received by him into the state treasury, and Alston had pre-
sented his claim and it had been found due, the state, as acreditort
would have been bound to have retained enough out of what was
due him to satisfy his liability, for the protection of its own interest
as well as that of the securities — he being insolvent. It can make
no difference, so fai* as this principle is concerned, that the governor
as the agent of the state, paid the money directly to the use of
Alston instead of first paying it into the treasury.
Principal and surety. Bonds. OflScers. Contracts.
Novation. Jurisdiction. Practice in the Snperior Court.
Before Judge Uillyer. DeEalb Superior Court. Septem-
ber Term, 1879.
To the report contained in the decision it is only neces-
sary to add that the following were among the grounds of
the motion for new trial made by Walsh et al.:
(1). Because the court sustained plaintiflE's demurrer to
defendants' plea to the jurisdiction.
(2). Because the court refused to charge the following
request of defendants' counsel : " Where plaintiff seeks
to show that the surety has consented to a change of con-
tract, it must be dearly shown ; for liabilities of sureties
cannot be extended by implication."
On this subject the court charged as follows : " It is not
necessary for the state to show in the proof that the sure-
ties, in so many words, either oral or written, expressed that
consent, but it is necessary that facts or circumstances
should be in proof sufficient to authorize the jury to their
clear satisfaction to infer that, in their own minds, the
sureties consented to it."
(3). Because the court charged as follows, and refused to
give requests to the contrary : " As to the plea setting up
an alleged release of the sureties by governor Colquitt,
governor of the state, in paying to Alston $15,000.00, or
other large sum in money in 1877, the court instructs you
SUPREME COURT OF GEORGU.
as follows ; The conrt is of the opinion that if the state,
by legislative authority, under the cireninstancep ae claimed,
paid Alston $15,000.00, o' other like enm more than the al-
leged liability, it may have operated to release the snreties ;
but the court instrncts yon, if the facts were that the state of
Georgia had a claim against the United States governmont
for $100,000.00, or $200,000.00, or other like sum, and if a
draft issued from the United States treasury for that snm.
payable to the order of Alfred H. Colqaitt, governor, and
if that draft came to the hands of the governor and he re-
alized the money on it, and the fnnds being in his hands,
before psy^ng it into the treasury, he paid Alston $15,-
000.00, or other like fee due by the state to Alston,
it cannot be said that said sum was so in the treaenry
of the state, or such payment was so made by the
state that it will operate to relieve the sureties, and the
court instructs yon that payment under such circumstances
by the governor, before the fnnds went into the treasury
of the state, wonld Dot relieve the sureties ; the court is of
the opinion that no money is in th^ hands of the state until
it has passed into the hands of the comptroller-general and
has been deposited in the office of the treasurer."
Plaintiff made a counter-motion for a new trial, and ex-
cepted upon its being overruled. But as the decision npon
defendants' motion controls the case, it is nnnecessary to
set ont that of plaintiff.
Babnbs & CoMiiiNu; J. L. IIkown : MtnattA Howkll,
for Walsh et al.
R. N. Ely, attorney-gen. ral ; Z. D. H
Warheb, Chief Justice.
This was an action broiiirlit by the plaintiff againpt the
defendants on a bond exeented by them in the dnm of
$10,000.00, signed by Aletim, as priiieipnl, and by Wuleh
and Adair, as securities, conditioned for the faithful per-
FEBKUARY TERM, 1880. 743
Wal«h eial.98. Colqaitt, governor.
formance by Alston of the duties of pablic printer of the
state. The alleged breach of the bond is that Alston had
received $5,000.00 under a resolution of the general assem-
bly, and had failed to account for the same, and had appro-
priated it to his own use, etc., and that Alston was further
liable in the sum of $3,000.00 as Uquidated damages. The
securities pleaded that the plaintiff, after the default of said
Alston, had paid him $15,000.00 without deducting said
debt, with full knowledge of his insolvency, whereby the
said secureties became released, and further, that by reason
of the adrance of the said $5,000.00 before the same was
due to said Alston under his contract for work done by him
as public printer, the risk of the defendants as his securities
was increased, and they were thereby exposed to greater liabil-
ity to loss. Alston having died pending the suit, an order was
taken suggesting his death and that the cause proceed against
the other two defendants; thereupon they pleaded to the
jurisdiction of the court on theground that neither of them
resided in the county of DeKalb, in which the suit was in-
stituted. The plea was overruled. The jury, under the
charge of the court, found a verdict for the plaintiff for
$2,500.00, principal, and $641.66, for interest. A motion
was made for a new trial on numerous grounds, which was
overruled, and the defendants excepted.
1. There was no error in overruling the plea to the juris-
diction of the court.
2. It appears from the record that Alston was elected
public printer in January, 1875, and his bond was executed
January 30th, 1875, and he was to enter on the discharge of
his duties the first day of the next session of the general
assembly.
On the 19th of February, 1876, the general assembly
passed a resolution authorizing the treasurer to advance to
the public printer, the sum of $5,000.00 in part payment
of the public printing for the present session. The condi-
tion of the bond is '^ that if the said Alston shall well and
faithfully do and perform all and singular the duties pre-
SUPREME COURT OF GEORGIA.
scribed by the laws of Georgia appertaining to said office of
etate printer for and during the term for which he hasbeen
elected, then thie bond or obligation to be void," etc. The
lawe of Georgia prescribing the duties of public printer are
to be found in the following sections of the Code, to-wit:
1022, 1023, 102(5. 1027, 1028, 1029, 1031, 1033 and 1034,
as to the time and manner in which he wob to be paid for
hi8 eurvices, that is to h&y, he shall be paid twenty-five per
cent, on the actnal cost of the material and labor employed
in the public printing, provided that before being paid
therefor, he shall make out an account on oath, of the actual
cost of the material and labor employed; stating that said
acci>niit is correct and just, and that the prices paid are not
above the customary rates for similar work and material
when employed in the service of private parties to do a
like amount of printing. Thus stood the law at the time
the bond was executed by the defendants on the 30th of
January, 1>75, as to the time and manner of the payment
of the public printer for his services as such, and the qnes
tion is, whether the resolution of 1876, authortziug the treas-
urer to pay him }i5,000.('0, in advance of the performance
of any work done by him as public printer, was snch a
change of the nature of the contract as amounted to a no-
vation without the consent of the sureties and discharged
them under the provisions of the 21.'i;J<L''i;ctiuii uf the Cudei
In our judgment it wa, such a cluiuge of the contract as
would ditichurge the sureties if dune wit/iout their conaetU.
The securities might have been willinj; to stand for their
principal when he was to perform his diitieK and be paid
therefor, as prescribed by law, tli:it ie to say, when lie had
done the work, but not willing tu stand for him and be re-
sponsible for $5,000.00 advanced to him before he had done
any work as public printer, to bi; used by their principal as
he might think proper. The advance of $5,000.00 to
Alston, their principal, before he hud done any work for the
state as public printer, was an iiuliicement to him not to do
it, and thereby calculated to iujurt^ hiii sureties. The con-
FEBRUARY TERM. J 880. 745
Waltih etal. vs. (Colquitt, governor.
Bent of the sureties to the advance of the $5,000.00 may
be proved either by direct evidence, or by indirect or cir-
cumstantial evidence tending to prove that fact.
3. It appears from the evidence in the record that Alston,
the principal in the bond, was insolvent^ and it further ap-
pears from the evidence of Treasurer Renfroe, that in May,
1877, Governor ^'olquitt presented to him a check drawn
in favor of the United States treasurer in Washington on
the United States treasurer in New York, dated 28th of
April, 18'i7, for one hundred and ninety eight thousand and
tweuty-eight dollars and fifty eight cents, payable at sight
to the order of Alfred H. Colquitt, governor of Georgia,
and stated to him (the treasurer) that $152,278.24 was to be
paid into the treasury of the state, and that the balance he
would reserve to pay attorneys' fees for which the check was
liable. The $152,278.24 was deposited in the treasury, but
docs not know what became of the balance only from hear-
say. Governor Colquitt testified that in 1870 the Atlanta
Herald^ in which Alston was interested, was sold out for
debt, and that Alston was much pressed for money, that in
May, 1877, he, as the governor of the Ptate, paid for the lute
of Alston about $15,000.00 for a fee due to him as one of
the attorneys for the state in the case of The State of Geor-
gia V8. The United States.
The 2154th section of the Code declares that " any act of
the creditor, either before or after judgment against the
principal, which injures the surety or increases his risk, or
exposes him to irreater liability, will discharge him." In
the case before us, the state was the creditor of Alston, who
was insolvent, and the defendants were his sureties for his
indebtedness to the state. The whole amount of the money
due on the check hereinbefore described was the property
of the state, the governor being the duly authorized agent
of the state to receive the same for the purpose of paying
it into the treasury, where the whole of it appropriately
belonged under the laws of the state. The governor recog-
nized the tact that the money belonged to the state, and
that he was only the agent for the state in its collection, by
746 SUPREME COURT OF GEORGIA.
Walah tl al. M. Colqaitt, gotaroOT.
paying into the etate treasury tbe 8am of $152,278.24 of
the amount received by him. If the governor had paid
the full amount uf the money received by him iuto the
treaeury of the state, aa the law contemplates he shonid
have done, and Ali>ton liad presented his claim -igainst the
Btate and the same was justly due him, the state would hare
paid him, less the amount that he was due the state ; the
state, as a creditor of Alston, would hare been hound to
have retained enough out of what was due him for the pro-
tection of the state's interest, as well as for the protection
of hie sureties, he being iTUolvent. The principle is not
changed by the fact that the governor, who was the aj^nt
of the state, withheld a part of the money from ihe treas-
ury and paid it to Alston without deducting Alston's in-
debtedness to the state ; the money in the governor's huids
was the money of the state all the same, and if the governor,
as the authorized agent of the state, had an amount of its
money in his hands due to Alston by the state of a i^reater
amount than Alston's indebtedness to the state, and paid
the same over to Alston without deducting therefrom wliat
Alston owed the state, that would have been such an act
on the part of the creditor by its authorized agent, the
governor, as wonid injure the sureties of Alston by increas-
ing their risk, and exposing them to greater liability, Alston,
their principal, being inaohent. In our judgment, the
charge of the court in relation to this point in the case, as
t;i'i fi'irtj ill tin; fi'coni, was error. There are but two main
coiiirolliiij^ qiieftiont* in this case, although there are fifty
afi8i<riLitji:iit6 of error. Firet, were the defendants, as sure-
ticB, dischargeH by cho change and novation of tho contnwt,
■without their con#e«i, under the provisionx of the 2t&3rd
Beutioii of the Code? Second, were the sureties discharged
nndcr the provisionB of the 2154th section of the Code f
As we grant a new trial in this case on the defendant*'
motion therefor, we express no opinion aa to the grounds
contained in the plaintiffs motion for a new trial, both cases
tiiving beau argued together here.
ha* •'■- ^— '— neat of the court below be reversed.
I
FEBRUARY TERM, 1880. 747
ZeUeraw. Beckman.
Zbllbrs v8, Beckman.
1. Courts of equity have exclusive jurisdiction of suits for the recovery
of exempted property which had been voluntarily sold prior to the
act of 1876. or of any interest therein.
2. The husband is the head of the family, and is the proper person to
bring suit for such property. A suit brought by the wife for that
purpose is demurrable, no good reason appearing why the husband
did not frue.
Homestead. Equity. Jurisdiction. Parties. Hubband
and wife. Before Judge Sfekb. Campbell Superior Court.
August Term, 1879.
Reported in the decision.
T. W. Latham; J. H. Lonoino, L. S. Roan, for plain-
tiflF in error.
H. M. Kkid, for defendant.
Jackson, Justice.
1. This suit was brought for the recovery of a mule
which had been exempted by plaintiff's husband and set
apart for the use of his family under section 2040 et set/.
of our Code, and which had been sold by the husband to
the defendant. The suit was dismissed on the ground tliat
under the act of 1876— Sup. to Code, §§359 to 367- the
courts of common law had no jurisdiction, but courts? of
equity alone could grant relief, and error is assigned on this
judgment. Section 359 reads as follows : " Courts of
equity alo7ie shall have jurisdiction of suits for the recovery
of property which has been set apart under the homestead
and exemption laws of this state, and which was sold pre-
vious to February 15th, 1876, or for the recovery of any
interest therein ; and it shall be lawful for any party to
prove that the purchase money of such property, or any
part thereof, has been invested in other property, or has
SUPREME COURT OF GEORGIA.
been applied to the benefit of tlie fainil; for which uid
property has been eat ppart as aforesaid."
This property was an exemption ; it is souf^ht to recover
it as sach from the vendee to whom it was sold, and there-
fore the broad words of the statute of 1876, corainonlj
liDOwu as " the McDaniel act" from tho able lawyer who draf-
ted it, cover this case, even if the legal title to the entire
property were in the wife. But she really has only a lua-
frnct interest in a part thereof, and a small part, for the
family of minor cfaildrea is very large. It would eeem
therefore that the words " or for the recovery of any inter-
est therein," wore pat in the act of 1876 on porpoee b)
cover her case. Eqnity therefore alone, nnder the exprea
words of that act, conld relieve her. and the court was right
to dismiss the action at law.
2. Moreover, the hnsband is the head of tins family, the
exemption was made to him as its head, the legal tiric it in
him, and in trover he mnst sne. It is trne that we held
that the wife might interpose a claim for the family to stop
tlie sale by execntion of a homestead, 61 <?a., 501, bat in
that case her hnsband had declined to take ont or apply for
the homestead, and the wife had thns been necessitated to
do so. Besides, a claim case has been always con-idered i
sort of eqnitable proceeding, and in that case this court did
not mean to antborize suit by her predicated only on her
own legal title. It ia tru'.^ trovLT against a wrong-doer may
be foanded on possession, imt her posacseioD here was her
haeband's, they living top'ther.
On the first point, we d<j uot mean to say that the head of
the family wonld be forced into eqnity for treepase on the
homestead or exemption, or against a mere wrongdoer
withont some sort of sale tn>rn the head of the family ; bnt
in a case like this, where \\iv. niiile was gold prior to the act
of 1876, that act is appliciiblii and the remedy is by hill iu
eqnity, especially as coveii^l hy tlie second point where tlio
only interest of the wife is tlie itsiifriict of the propert/tOr
a part only thereof. "^^^
Jadgment affirmed.
FEBRUARY TERM, 1880. 749
French, Rtelurds & Co. w. Kemp, sheriff.
French, Riohardb & Co. vs. Kemp, sheriff.
Where, upon the traverse of a sherifTR ansi^er on a rule against him
for the failure to make the money on an execution, it appeared that
he had failed to obey instructions to levy for six months, when
the defendant died, and he was then enjoined until the right of the
widow to dower and year's support was determined, and that the
plaintiffs were injured by the delay, a prima faeie case for movant
was made out.
Sheriff. Levy and sale. Before Judge Weight. Dough-
erty Superior Court. October Term, 1879.
Reported in the opinion.
J. Armstbono, by brief, for plaintiffs in error.
No appearance for defendant.
Crawford, Justice.
The plaintiffs in error moved a rule against the sheriff
for his failure to collect Siji.fa. placed in his hands against
one W. L. Davis. The sheriff filed his answer, which was
traversed by the movants, and after their testimony was
submitted, the respondent's counsel moved, as he termed it,
a non-suit, on the ground that no special damage had been
shown by the non-action of the sheriff, which said motion
was sustained, and the following order taken as the judg-
ment of the court : ^ It is ordered that a non-suit be awarded,
and the rule discharged for want of allegation and proof
of damages." To wliich said judgment and order the
movants excepted, and assign the same as error.
The rule was drawn in the usual form, setting forth the
fi.fa,; that it was placed in the hands of the sheriff; that
he had neglected to make the money thereon, though he
had had ample time to do so, and that for this failure he show
cause why he should not be attached as for a contempt.
The proot offered to support the rule, and to have it
T.W BUl'KEME COURT OF GEORGIA.
Frencb. Klcbirdi A Co. h. Kemp. itisciS.
madti abeolute, was that the jndginent was obtained at the
April term, 1373, of Dougherty superior court; that it was
placed in the hands uf the sheriff on the 5th day of May
thereafter, with instructions by plaintiffs' attorney to levy;
that the defendant had sutScieiit property to pay it ; that
no levy was made until the 8th of October; tliat on the
26th of November, the defendant having died, a bill of
injunction had been granted to restrain the sale of the
property under the right of the widow to dower and a
year's support; that the movants had been injured by this
neglect and delay.
To all of which respondent offered nothing in rebuttal,
but submitted the motion to discharge the rule under the
proof. The naked question therefore presented by this- re-
cord, is whether the oonrt pronounced a proper judgment in
the case made.
Sheriff) are liable to an action on the case, or an attach-
ment for contempt, at the option of the party, whenever
he has injured snch party by a failure to levy on the prop-
erty of the defendant. Code, §391'). The official neglect
in not obeying the general mandate of the court, and the
special instructions of the plaintifEd' attorney, va^deti prima
fiuAe case, and he should have been held to answer thereto
by proof.
The delay of six mouths, the death of the defendant, the
springing up of new rights to the widow, and the probable
loss of the debt, were quite autlieient to have maintained
the nilu, and <!iiat: the «/^it.'* on the respondent. 7 6'a,, 1+6 ;
11 /i., 297; ad IK, 437.
Tiierc is no condicl with these principlen in the caao of
C'owai-t on. Dunbar lib Co.. 56 (?«., 117, wherein it \a asserted
that till: measure of the sherifTs liability is the injury eus-
tiiined by the plaintifE; he may show any fact that will re-
lievi- him of this liability, siieh as that the dofendatit had nu
pmpf^rty, that that which wiis in hie possession belonged tii
;inother, or that it was exempt.
In^JlMM^ of Hunter vs. PhUUps, 56 Oa., 634, it
FEBRUARY TERM, 1880. 751
Morr^Bon tw. The Stnte.
*
was held that the aheriflf was bound by official duty, to
execute with diligence the final process of the court, and
when directed by the plaintiffs' attorney to levy upon de-
fendant's property he must do so, unless there is some legal
difficulty in his way, and if it appear that the plaintiff
has been injured by the delay, then the sheriff is liable.
Judgment reversed.
MoBBisoN vs. Thb Statb of Oboboia.
1. When a certiorari to the decision of a. county judge in a criminal
case is sought. It must affirmatively appear that the petition, duly
sanctioned, was filed in the clerk's office within ten days from the
trial, otherwise the certiorari witl be dismissed.
2. The act of 1868 provided, In the sixth section thereof, " that no writ
of certiorari shall be granted unless the accused shall first have filed
his affidavit setting forth that he is informed and l)elieves that he
has not had a fair trial, and that he has been wrongly and illegally
convicted/* The act of 1872 provided ' that no application for cer-
tiorari, however, in a criminal case shall be entertained unless the
party applying will make the affidavit set down in section 6 of the
act of 1868, as follows : " That no writ/' etc.. in the same language
as that above quoted, except that the words '* is informed and be-
lieves that he'' were omitted, leaving the affidavit without such qual-
ifying clause :
Held, that f he net of 1872 is the latest expression of the legislative will
and since its passage an affidavit on information and belief i^ not
sufficient.
CertiorarL Criminal law. Laws. Before Judge Law-
son. Morgan Superior Court. September Term, 1879.
Repoi*ted in the decision.
J. A. BiLLUPs; Calvin Geobgb ; McHenbt & McHenry,
for plaintiff in error.
Robert Whitfield, solicitor-general ; H. W. Baldwin,
county solicitor; Jackson & Lompkin ; F. C. Foster, for
the state.
SUPREME COURT OF GEORGIA.
Wakhrr, Chief Jastice.
This case came before the conrt below on a eertiorari to
tlie connty conrt of Morgan eonnty, in a criminal case.
When the case was called in the Buperior court for a hear-
ing, a motion was made to diBmioa it on the groanda therein
stated, which motion the conrt sustained, and passed a gen-
eral judgment diamisBing the certiorari. Whereupon the
plaintiff in certiorari excepted.
1. It appears from the record that the trial was had on
the 5th of April, 1879 — the certiorari was sanctioned on the
12th of April, 1879. The writ of certiorari was issned
by the clerk on the 26th' of April, 1879, bnt it does not ap-
pearatwhat time the petitionforo^r^raf^', with the jndge's
sanction thereon, was filed in the clerk's office, which the
law retjDireB shonld be done in ten days after the trial, that
being the commencement of the snit, and that fact should
be affirmatively shown by the reuord. Code, §301 ; 60 6a.,
632; Fuller vs. Arnold, decided at the present term, not
yet reported.
2. The plaintiff in his affidavit to obtain the oertifyrari,
stated that he was advised and believed " that he has not
had a fair trial, and that he had been wrongfnlly and ille-
gally convicted." Whereas, the 302nd section of the Code
requires an affidavit setting forth " that he has not had a
fair trial, and that he has been wrongly and illegally con-
victed." Bnt it IS said this section of the Code has been
improperly codified and is not the law ; that the true law
is to be found in the 6th section of the act of 1868, and
that the affidavit made by the pbiintiff is in accordance there-
with. It is true that the act nf 1872 declares that no appli-
cation for certiorari, howevoi-, in a criminal case shall he
entertained unless the party a])]il_ving will make the affidavit
set down in section 6 of the act of IS68, as follows: "That
no writ of certiorari shall be jfranted, unices the accused
shall fiist have filed his affidavit, t^etting forth that he hu
not bad a fair trial, and that he has been wrongly and ille-
FEBRtJARt TERM, 1880. 75;J
fionea V9. Priutnp Brat. A Co.
gaily couvicted," which has been inserted in the Code, and
the question is whether the act of 1868 contains the true
law as to the affidavit required, or the act of 1872 } The
act of 1872 does not declare that the affidavit shall contain
the same words as in the act of 1868, but on the contrary,
it shall contain the words as follows, which are to be found
in the enacting clause of that statute, and are different from
those found in the act of 1868. In our judgment, the act
of ]872 being the latest expression of the legislative will
as to what the affidavit to obtain a certiorcMri in a criminal
ease should contain, is the true law applicable thereto.
There was no error in dismissing the plaintiff's certiorctri.
Let the judgment of the court below be affirmed.
BoNBS V8. Printup Bros. & Co.
1. In a claim case, if the claimant contends that he had possession of
the property at the date of the leyy, and that point is in issue, the
plaintiff in^./a. is entitled to open and conclude.
2. Construing the entire charge together, the court committed no error
which would necessitate a new trial.
3. The verdict is not contrary to evidence.
Claim. Practice in the Superior Court. Charge of
Court. Verdict. Before Judge Undbbwood. Floyd Su-
perior Court. September Adjourned Term, 1879.
Printup Brothers & Co. sued out an attachment against
James W. Bones, a member of the firm of J. & S. Bones
& Co , on the ground that he was about to remove without
the limits of the county. The attachment was levied on
certain property, which was claimed by Mrs. Maria Bones.
On the trial the evidence for plaintiffs tended to support
the ground of attachment, and to show that defendant in
fi.fa. pointed out the property. The evidence for claimant
tended to show the following facts : Mrs. Bones is a
widow. Her husband died in 1841, leaving three children,
764 SUPREME OOUKT OP GEORGIA.
Boniw «. Prinlnp Bna. A Co.
viz: James W., John Samnel and Thomas McGran
Bone?. Tliomas M. Bones died in 187fi intestate, nnraar-
ried and without iesae. His mother and two brothers,
James W. and John S,, survived him, and were his only
heirs. He wanted his mother to have his property, and to
carry ont this expressed desire, a deed was execnted hy
James and John as follows :
" Wberens, Thomas M. Bones died intestate, ud married and irithoui
isBue. but desired lb at his mother, Maria Bonfs. Rhoutd possess and ni-
joy his property, we. James W. Bones and John 8. Bonea, his brothen,
in coDsiitemtiOQ of the premiBes and the sum of one dollar, the receipt
of which is bureby uchnowledjiied, do assign, trauster and deliver unto
our mother, the said Maria Bones, alt our rlgbt, title and imereat in
tiie prO|ierty ot every kind, debts, credits and effects, belonging to the
said Thomas M- Bones at the lime of his death, including bis share, in
common with us, of the residue of the estate of our deceased uncle,
John Bones."
Among the property so conveyed was a \&Tge indebted-
ness by Bones, Brown & Co. Some time afterwards Jamea
W. Bonea made tlie following eonveyanoe Ut Mrs, Maria
Bones :
"Okoruia— Floyd County.
" Wliereas Bones. Br»wa& Co.. of Augusts, Go.. of which firm lam
a member, is indebted to Mrs, Maria Bones in tbe sum of about six-
teen thousand dollars, as will fully appear from the books of said firm.
and whereas anid Arm has failed and made an assignment of its prop-
erty, whereby some of its creditors are secured, nod the said Maria
Bones left unsecured ind unpaid. Know all men by these presents
that I, James W. Bones, of said county and state, in payment of twelve
hundred dollars of the foregoing sum to said Maria Bones, so due as
aforesaid, have g< anted, bargained, sold and conveyed, and do by
Ibese presents grant, bargain, sell nnd convey to "nid Marix Bnoe*, her
heirs and assigns, the following projuTly, lo-wil:" (describing property
claimed.)
Claimant also introdnced (■vi<leni:e to eontradint the
ground of attachment.
Plaintiffs, in rebuttal, iiieiptiil, and it was admitted by
claimant's counsel, that J. S. Hones and Bones, Brown ife
Oo. were insolvent at the time plaintiffs' notes in suit were
dishonored, and were so in February, 1878.
FEBRUARY TERM, 1880. 755
Bonee iw. Prlotap Bros, ^t Oo.
I
The jury fonnd the property subject. Claimant moved
for a new trial on the following, among other grounds :
(1). After the conclnsion of the evidence, claimant's
counsel submitted to the court the question as to who was
entitled to the concluding argument, and claimed that right.
The court inquired of J. Branham, claimant's attorney, who
he claimed to be in possession at the time of the levy. He
replied, the claimant. Whereupon the court held that the
plaintifPs counsel was entitled to the concluding argu-
ment.
(2). Because the court charged as follows :
(a). " The plaintiffs also contend that the contract was
secret and unknown. You are to judge from the evidence
bow it was, whether it was an open fair sale or a secret sale
you will find that according to the evidence. If the evi-
dence shows that it was a sale entirely in the circle of the
parties in the contract the law calls that a secret transaction."
(i). " The plaintiffs contend that the property ought to be
subject for another reason ; that the sale is void because at
the time Mr. Bones was insolvent, and that it was made for
the benefit of a creditor of his and that a benefit was re-
served for him, and that it was a mere pretended sale — ^you
are to judge of that. If it was made at the time he was in-
solvent, and for the benefit of a creditor of his or of the
firm of which he was a member, and a benefit was reserved
for himself or a person for him, then it would be void."
((?). '^ The plaintiffs allege that the consideration was no
consideration ; that the debt and account upon which it
was paid was transferred in March, 1878, to Maria Bones.
That is the plaintiffs' allegation. The claimant says the
transfer was made in 1876, when Bones was solvent, and
that it was a bona fide transaction, and therefore there was
a valuable consideration. You are to find what the proof
shows in relation to that."
{ft). *'*• If it (the proof) shows that the deed was made not
for a valuable consideration, when Bones was insolvent, it
would be null and void."
SUPREME OOUKT OF GEORGIA.
(s). "Ad aseif^oment made b; an ineolvent debtor of flII
hia property for the benefit of li part of hia creditors ie not
allowed by the laws of this state."
(3). Beoaasc the verdict was contrary to luw aud evi-
dence.
The motion was overruled, and claimant excepted. For
the other f »cts see the decision.
J. Branhah ; C. D. Fobstth, for plaintiff in error.
Dabhbt & Fodohb; D. 8. Pbintup, for defendants.
Jackson, Jnstice.
Printup Brothers & Co. levied an attachment on a lot of
fornitnre as the property of J. W. Bones, copartner nf J.
S. Bones & Co., it was claimed by Mrs. Maria Bones, the
mother of defendant in ezecation, was found snbject, the
claimant moved for a new trial, it was refiiaed, and she ex-
cepted.
There are three views in which the claimant ineisu that
a new trial should be awarded her : First, because the court
gave the plaintiffs the right to conclude the argument;
secondly, because of errors in the charge, and thirdly, be-
cause the verdict is against the law and the evidence.
1, The claimant's counsel was asked by the court, at the
close of the testimony, whether he claimed that the claimant
was in possession at the date of tiie levy, in reply to a de-
mand he made for the conclnsion ? to which he replied that
be did claim that she was in possession ; thereupon the
conrt gave the plaintiffs the right to open and conclude.
Under the facts the court did not err. The plaintiffs took
the burden in the outset of the case and earned it all through
the trial. They carried the onus of showing possesfion and
title in the defendant in attachment, and after having done
so, it was too late for claimant, even if the poseession in
defendant in execution had not been contesti<i, to insist on
the right tu conclude. But lie did ron'est the possession.
FEBRTTARY TERM, 1880. 757
Boom vs. Prlntnp Broc. St <'o.
He replied that it was in the claimant, and it woold seem
clear that pntting thns the same antis of showing title in
the defendant on the plaintiff in the argument which he
had permitted him to carry in the introduction of testi-
mony, he deprived himself of all right to conclude the
argument ^
2. Construing the portions of the charge excepted to in
the light of the entire charge, we see no error which could
hurt the claimant. The only exception which struck us as
forcible is that which makes the judge say that '^ an assign-
ment made by an insolvent debtor of all his property for
the benefit of part of hit creditors is not allowed by the
laws of this sUte ;" but in referring to the entire charge,
which is sent up in the record, we find that the judge adds
these words, ^' but a party in debt may seU a part of his
property to pay one of his creditors." So that the exception
is to part of a sentence, and we append above the balance,
and so completing the sentence, as we understand it, it is
the law. The judge did not mean that an insolvent could'
not seU cUl bona fide to pay one creditor, for in a few sen-
tences following he adds: ''He can make a sale of his
property to a creditor ; he can divest himself of every arti-
cle he owns, and no other creditor has a cause of complaint
if it was for a valuable consideration and in good faith."
This is the substance of 1952nd and 1953rd sections of the
Code, and the court did not err in reading them aud so
construing them ; and the jury, we think, must have under-
stood him. In this case there was no question of aasiffn-
ment for the benefit of a part of the creditors ; but it was
a question of sale to one creditor, and was that sale bona
fide and for value ? We think that the testimony author-
ized the charge in respect to the dispute about the date of
the transaction between mother and son and mother and
sons, and other charges criticized for like reasons ; and con-
sidering the charge as a whole, and reading each sentence
in the light of the context, we see no material error therein.
What are badges of fraud, and how they may be explained,
is fully and fairly set out in the charge.
SUPREME OOtTBT OF GEORGIA,
Uou (( at., sdmtnletnton. tx. 8toli«>, adratnlnrmtor.
3. The question wtMoriu of iiuent — fraud or no fraud — a
question pecnlinrly the province of the jnry to decide; and
as tliat tribunal has decided it, and the judge who tried it
has approved the finding, we do not feel authorized to set
aside the verdict. There is evidence to sustain tlie verdict,
and tlierefore it is not contrarj to law.
The judgment is therefore affirmed.
Roes et al., adniiniBtratore, vs. Stokes, administrator.
1, Wbere UndB, tfae subject matter of contest, are rented out peodlng
tbe litigatioD uoder tbe order of court, llie rents are but tbe mMoe
profits incident lo the deliiy and should pasa with llie otttiim in the
adjudicated dispOBition tbereof.
2. The costs aeem to have been equitably taxed, but wbcther so or not,
this court cannot interfere as it is provided Ihut tbe chancellor shall
determine upon whom tbe costs shall lall.
Equity. Rents. Costs. Before Judge Ckibp. Lee Su-
perior Court. November Adjourned Term, J878.
The report of this case in 59 Ga., 862, witli the follow-
ing opinion, is snfficient to a clear understanding of the
(jueetions decided.
Lanibk & Andebbon, by brief, for plaiatiffs in error.
Hawkins & Hawkikb; Feed. H. West, for defendant.
CaawTORD, Justice.
When this cause came before the chancellor for the final
decree to be made therein, tlic plaintitls in error insiated
thai the net proceeds of the ivnta »it the land, wliich had
been the subject matter of liti<;iitloii for the years 1877 and
1878, and also the sum of $19<>,79, which had been reserved
out of the sale of the land as coiiunis^iunB, shonld lie paid
over to them, the last mentioneil mini to be paid from tin-
renta of tbe years 1875 and 1:^T*;.
FEBRUARY TERM, 1880. 759
UoM ei al.^ Hdminittrmtons, vt. Stokes, admiiiUtntor.
They further insisted that the estate of Robs be discharged
from any part payment of the costs of this litigation, there
being ample funds in the hands of the administrator Stokes,
from the said rents of 1875 and 1876, to pay the same.
The conrt refused so to decree, and on tlie contrary decreed
that the auditor's report in the case, with the supplemental
decree as directed by the supreme court, and the judgment
of that court, be made the final decree, and that the estate
of the said Ross be charged with its pro rata share of the
costs and auditor's fees, to which ruling and decision of the
court the said administrators excepted.
1. It became necessary during the pendency of the litiga.
tion in this case to rent out the land, and the first error
complained of in this record, is the refusal of the conrt to
allow the* rents paid over to the plaintiffs in error. The
decree directed the laud sold, and also directed the disposi-
tion of the fund arising therefrom, and the delay in execu-
ting the decree did not change the rights of the parties, nor
affect the order of the distribution of the money. The
rents were but the mesne profits incident to the necessity
for the delay — and we think went properly with the corpu%
in the adjudicatecl disposition thereof.
2. The plaintiffs in error complain that the costs between
the parties are not equitably adjusted, and that the decree
is totally defective as to the costs. This is not made to ap-
pear to us, for it seems that the net amount received by
Koss after deducting commissions, etc., was $3525.08, and
the net amoimt retained by Stokes, including the rents du-
riug the litigation, was $2418.00, ascgrogating $5943.08.
The costs were to Koss $255.04, to Stokes $174.95, making
the total $430.95. But if this be not right, it is not such
an error as we can correct, for it is provided that the chan-
cellor shall determine upon whom the costs shall fall. Code,
§4210.
No error being made to appear to us the judgment of
the court must be afiirmed.
760 SUPREME COURT OF GEORGIA.
Waj (t al. n. Mjai.
Wat et al. vt. Mtkbs.
Where n contract of rent proviiled that if the leonDt be in any waj
ousted from the poMeMioo of certain rooma, the tCDsacj and rent
should cease, the f&ct that the landlord entered and used, or allowed
oiherB to enter and use temporarJIj, on one or more ocraMtnns,
the mom iluriog the nbsencu of the leaant, does not constitute sucb
ua ouster as to relieve the latter from the payinent of real.
Landlord and tenant. Oiieter. Buforti Judge Flbhihq.
Chatham Superior Court. May Term, 1879.
To the report contained in the decision it ie only necee-
sary to add the following: Way, the tenant, claimed that
he had been ousted, because during hie absence intrusions
had been made upon him ; that his rooms had been entered
and used on several occasions by the landlord's family or
guests, and withont his knowledge and consent. There
seems to be no doubt that intrusions and temporary nee
were made, but whether the landlord knew of them or as-
sented to them the evidence was conflicting.
A. P & S. B. Adaub, for plaintiffs in error.
Geobse a. Mkbobr, for defendant.
Wabneb, Chief Justice.
This was an action brought by the plaintiff on a written
contract for the rent of certain described rooms in a tene-
ment house in thecityof Sarannah. The defendautn pleaded
Hie -u.HTiil isMif- Oi, the trial ..f liie cii^e. tiie jii, v. iirKit-r
tilt; charfje of the (lotirt, found a verdict in favor of li)€
plaintiff for the sum of $30U.UIJ, with interest from the let
of November, 1877. A motion for a new trial was made
on various j^rounde, which was uverrulud, and the defen-
dants I'xeepted,
It appearK from tiie evidetjce in the record that the leaee
contract sued on contaiued the following clause: *'itid
FEBRUARY TERM, 1880. 761
WUIUimaoii w. McLeod,
fnrther agreed that if the said Charltoo H. Way, be in anj
way onated from the posaeesion of aaid rooms, that then and
from thenceforth the tenancy of said rooms and the rent
therefor shall cease, the said Charlton H. Way paying pro-
portionately therefor up to the time of snch cessation.^'
The conrt charged the jury amongst other things, as fol-
lows : ^' I charge you that an ouster is a continuous act of
exclusion ; the party must take possession and with inten-
tion to hold it against the tenant. A temporary taking pos-
session is a mere trespass or intrusion, and will not termi-
nate the tenancy or give the tenant the right to abandon
the premises." The evidence as to the temporary occupa-
tion of the rented rooms by the landlord's consent or knowl-
edge, was conflicting; but, assuming ail of the evidence of
the defendants contained in the record to be true, it was
not snflScient to constitute an ouster of the defendants' pos
session of the rented rooms to discharge them from the
payment of the rent due therefor, according to the terms of
the special rent contract. 2 Bouvitr's Law Dictionary, 266;
Taylor's Landlord and Tenant, section 389. Whether the
charge of the court complained of was right or wrong, the
verdict was right, under the evidence and the law applica-
ble thereto, and should not be disturbed.
Let the judgment of the court below be affirmed.
WiLLIABCSON V8, McLbOD.
1 An assigamcnt of dower is not a nullity because only four instead
of five commissioners were appointed, if it be otherwise legal. It
may be held bad upon objection made at the proper time, but after
the return has been made the judgment of the court, objection on
that ground comes too late Notice given by the wife to the admin-
istrator of her husband's estate of her application for dower gives
notice also to creditors of the decedent.
2. A charge not warranted by the evidence should not be given.
Where an assignment of dower was recorded in the book of deeds,
and the plat having been omitted by accident, it was subsequently
762 SUPREME COURT OF GEORGIA.
WiliiamBon m. McLeod.
inserted by order of court, a charge which assumed that this waa
HQ illegal record was error. It was constructive notice lo the world,
and aciual notice to creditors of the decedent who were represented
by the administrator.
Dower. Title. Judgments. Notice. Administrators
and executors. Charge of Oonrt. Record. Practice in
the Snperior Court. Before Judge Johnson. Johnson
Superior Court. September Term, 1879.
M. C. WiUiamson died in 1863 or 1864, seized and pos-
sessed of a tract of land in Johnson county. His widow, who
is the plaintiff in error, bad dower set apart to her in this
tract of land; the return of the commissioners was made
the judgment of the court at the March term, 1867, of
Johnson snperior court. Neil McLeod, the defendant in
error, had obtained a judgment against the administrators
of M. C. Williamson, and an execution issued thereon was
levied upon this tract of land, including the dower. It
wiis sold, and McLeod became the purv^haser at sheriff's sale.
The sheriff put out Mrs. Williamson's tenant, and put
Mcl^eod in possession of the entire tract of land. Mrs. Wil-
liamson brought ejectment against McLeod to recover her
dower land.
On the trial the main point in the controversy was the
validity of the judgment of the court setting apart dower
to Mrs. Williamson. The record showed that in the appli-
cation for the appointment of commissioners to set apart
dower, four persons were named as commissoners; that the
writ was directed to four commissioiiers, and that three of
them acted in setting apart dower and making their return,
which was made the judgment of the court. The retnru
of the commissioners assigning dower, was recorded by
the clerk in the book of deeds, instead of being recorded
by him on the minutes of the superior court, the judgment
alone being on the minutes.
At the time of making the record he failed to record
with the proceedings a copy of the plat of the dower landj
FEBRUARY TERM, 1880, 763
WilUamBon vt, McLeod.
bnt, nnder an order of coart, entered the same at a sub-
seqaent time.
Under the charge of the court the jury returned a ver-
dict finding for the defendant. Plaintiff moved for a new
trial on the following, among other grounds :
Ist. Because said verdict was contrary to law and evidence.
2nd. Because the court erred in charging the jury as fol-
lows: "That the judgment of the superior court assign-
ing dower to the plaintiff in and to the land in dispute was
void and of no effect, because the writ of dower originally
issued to the Qommissioners appointed but four, and was
directed to but four commissioners, instead of appointing
and being directed to five commissioners."
3d. Because the court erred in charging the jury "that
the judgment making the return of the commissioners the
judgment of the court was invalidated by the fact that the
return of the commissioners was not incorporated with or
set out in the order of the court making baid return the
judgment of the court, it being conceded that the plat
as spread upon the minutes in the order making said re-
turn the judgment of the court, as it appears on said min-
utes, was an interpolation made without any authority, and
designed to perfect said judgment."
The motion was overruled, and plaintiff excepted.
R. W. Carswell, for plaintiff in error.
John M. Stubbs, for defendant.
Jackson, Justice.
Mrs. Williamson brought ejectment for a certain piece
of land which had been set apart as her dower, against
McLeod, who had purchased the entire tract at sheriff's
sale, it being sold as the property of her husband, and her
title to the portion sued for turned on the validity of her
dower interest previously set apart and assigned her by the
superior court.
V 64-48
764 SUPREME COTIRT OF GEORGIA.
WUIluuan w. McLeod.
The presiding judge held that the aseigBmeDt was void
as to the purchaser, McLeod ; the jury rendered a verdict
for the defendant, the plaintiff excepted, and the qnestion
is whether the widow's assignuient of dower was voidl
i. Section 4011 of the Code enacts that livecommiesionera
shall be appointed, a majority of whom may act, and in the
case at bar but four were appointed, and the eaperior coart
held the whole assignoient null and void on this acooant.
The section does not declare that dower assigned in any
other way shall be void, or that anlees five are appointed
commieeioners, the entire action of the court shall be a nul-
lity. On the contrary, the section enacts that a majority
of tlie five may act, and that their action will be as good as
if all five acted. Snb-section six of the fourth section of
the Code declares that " A aubatantial compliance with any
requisition oF the Code, or laws nmeudatory thereof, *»p«-
cially on the pari (^public queers, shall be deemed and
held euSicient, and no proceeding shall bu declared void for
want of such compliance, unless expressly so provided by
the enactment." There is no provision expressed in this
enactment declaring the act of this public officer in the
assignment of this dower by the appointment of four, and
not five commissioners, void, and therefore it cannot be
lawfully, we think, so declared by the conrts.
Besides, it was admitted on the hearing before us, that
McLeod wae ■.\ creditor of the dccMaod liusbiind of this
widow. If t^n, lie c^liiiiiiii liavi- objected to ili6ai.i|iomttueiit
of fonr coniiiiii^sionore at the time wlien the return wna
made the jud'^nient of the court. After it was made that
judgment, hi> kas precluded from objecting. lie had notice
through th« administrator. Formerly, notice had to be
given to all persons interested in decedent's estate ; but a
subsequent statute made notice to the administrator suffice
as to all heirs and creditors. Had the return been objected
to before it w:is made the judgment of tJie court, doubtless
it would have been lield illegal, becaui<e tho numiier called
forby tbd sta*"'~ ^"^ not been named ae comnuAUOnets ;
FEBRUARY TERM, 1880. 765
WilliuiiAoxi M. McLeod.
but to pronounce a judgment absolutely void after its ren-
dition, is quite a different matter. Indeed, section 4048,
which declares that " when the return of the commissioners
is made the final judgment of the court, it shall be con-
clusive between all parties interested," would seem suflScient
to settle the point, and to the same effect is the judgment
in 41 Oa,, 42.
2. The court seems to have misapprehended the facts in
the second charge, of which complaint is made. The assign-
ment of dower was recorded in the place where other title
papers appear, and the plat made by the surveyor having
been by some inadvertence omitted from the record, was
added thereto Jy order of court regularly taken, as the re-
cord of the case brought here under the clerk's certificate
attests.
So that the title of this widow to her dower, always a
favorite right in the eyes of the law, and held superior to
the most sacred liens of creditors, was not only Ua pendens,
but finally made the judgment of the court, and recorded
where all titles to real estate are looked for, and to all in-
tents and purposes was thus constructive notice to the
world, and was actual notice to this defendant, if a creditor
of the deceased and interested thereby in the estate, and
represented by the administrator.
The court below having charged contrary to the. opinion
we entertain of the law on these two controlling questions,
which necessitated a verdict against the plaintiff, we must
award to her a new trial.
Judgment reversed.
SUPREME COURT OF tiEORGIA.
F08TEK et (d. V8. St&plbb et td.
The verdict for llio plaiDlifFs in this case was coalmrj U) law and
eviduacc, IxiLUUSU Itm ]ikiulills failt-d lu sLow iLat Ihu legal estate
in Ibnj premises was id them at the date of tlie demise laid in the
decU ration, and. on the contrary, the evidence afHrmali»ely
esUblisbcd title out of two of them.
Ejeetment. New trial. Before Jnd{^e Pate. Dodge
Superior Court. November Term, 1S7S.
This case was tried Lefort; Jitdf^e Grice, liiit the motion
for new trial waa ovurnilcd by Judge Pate. It ie suffi-
ciently reported in tlie o|)iuion.
Lanier & Andebson, for plaintilfs in ciTor.
L. A. Hall; D. M. Robekts; J. F. DkLmv, for defund-
autB.
Cbawforo, Justice.
Thia suit was hrouf^ht by Tliomaa J, Stapler H al., as
heirs at law of Thomas Stapler, deccaaed, to recover a lot
of land in the posBoesion of Foster & A^nnstroti^, and who
claimed to be the owners thereof. On the trial a verdict was
rendered for the plaintiffs, and the defendants being refused
a new trial, they seek to reverse that judgment as error.
The grounds of the motion for a new trial relied upon
before this court are —
1. Because the verdict is contrary to the evidence, and to
the principles of justice and equity.
3. Because the verdict is contrary to law.
These grounds may be considered and diepoeed of to-
gether. The plaintifEs set up and rely upun a demise of
Thomas Stapler to them in the year 1SC7. An examina-
tion of Che testimony as fonnd in the record, shows the fact
to be that in that year the said Thomas was in life, and
that it W!is in the year 1869 that be died. So that the
FEBRUARY TERM, 1880. 767
PenoU vs. Qcoit, admlniBtrator.
plaintiffs could not have been at that time the heirs of
Thomas Stapler, nor could they make a ^^ lease " when the j
did not own, neither could there be an eviction of a lessee
in the absence of a lessor.
^^ In all cases where .the title of the real plaintiff in the
action of ejectment is controverted under the general issue,
or other plea which puts in issue the title of the plaintiff,
he must prove that he had the legal estate in the premises
claimed at the time of the demise laid in the declaration."
Tyler on Ejectment, 482 ; 12 Ga., 166.
Even if this objection could be overcome, the proof
shows that Thomas J. Stapler and Lydia A. Stapler, two of
the heirs of Thomas Stapler, deceased, have sold and con-
veyed one-half interest in this land to Philip S. Holt, who
has whatsoever of title was in them, and of course to that
extent the verdict was contrary to evidence and without
evidence to support it. It further appears from the record
that Kichard F. Stapler, one of the plaintiffs, sues as the
guardian of Andrew H. Stapler, a minor, and no proof was
offered to show his appointment as such, the recovery,
therefore, of any interest claimed for a ward in the absence
of such indispensable testimony was contrary to law. 2.
Kelly, 120 ; 41 Oa,, 607.
Judgment reversed.
Pbbsoll V8. Scott, administrator.
Where a father advanced to his son a "wool carder " of the value of
one thousand dollars, and afterwards took possession of it and used
it, he thereby became the debtor of his son, and the statute of limi-
tations would run as well against such claim as against any other
debt. If the claim for the use of the property was barred before
the death of the father, it would not be a proper deduction from the
advancement in the settlement of his estate.
Estates. Administrators and executors. Statute of lim-
itations. Before Judge Spseb. Bockdale Superior Court.
August Term, 1879.
SUPREME COURT OF GEORGIA.
Reported in the decision.
J. N. Glbnh, for plaintiffs in error.
A. B. SnoiB, for defendant.
Wabnbr, Chief Jnatice.
This case came before the court below on an exception
filed to an auditor's report iu the case of Persoll vs. Scott,
administrator, et at. The court sastained the ez(%ptioii
taken to the auditor's report, and the complainant excepted.
It appears from thereport of the anditor that the deceased
intestate, wlio died in 1874, advanced to his son, the com-
plainant, in the year 1861, a " wool carder" of the valae, at
that lime, of |1,000.00; that in the spring of 1862, the
complainant went into the army, and during his absence bis
father took poseeEsion of the carder and moved it into his
own mill-hoDse and ased it there antil Jaly, 1864, when it
was bnmt np by the Federal soldiers. Theanditor qha'¥:ed
the intestate or hie estate with the snm of $300.00, for the
use of the carder, and deducted that amount from the
$l,00i;.00, and thereby redncing the complainant's advance-
ment to $700.00.
As against this claim of the complainant upon his father's
estate for the nse of the carder, the administrator pleaded
the statute of limitations. The gift and delivery of the
wool carder by the intestate to the complainant aa an ad-
vancement, in 1861, vested the title thereto in him, to be
accounted for at its value at the time of the advancement,
as a part of his dtstribntive share of the intestate's estate
after his death. If after making thf :Hlv:iii<.4rjii,-Tit i.f liie
wool carder to the complainant, tho inteutate in hie lifetime
took possession of it and used it, and ench use was worth
$300.00, then the intestate in his lifetime became indebted
to the complainant that amount in tlic same manner as aity
other person would have been wtio liitd used the complain-
ant's wool carder, and the complainant could have sued the
intestate in his lifetime on the iiououiit therefor, provided
i^EBRtJART TERM, 1880. M
Boice vs. The Ixmrnan Gold and Silver Mining Co.
he had done so before the same was barred by the statute
of limitations. The intestate died in 1874, and the com-
plainant's claim was barred in the lifetime of the intestate, not
only by the four years statute, but by the act of 1869. As
the intestate could have pleaded the statute of limitations
in bar of the complainant's claim for the use of his wool
carder, in his lifetime, so may his administrator do so after
his death. But it was said on the argument that this was
an equitable proceeding, and that the statute of limitations
should not be applied to it. The answer is that equity fol-
lows the law, and cannot override and control the positive
enactments of statutes. Code, §3084. There was no error
in sustaining the exception to the auditor's report.
Let the judgment of the coart below be affirmed.
fiuioB V9, The Lowman Gold and Silver Mining Company.
1. Is a motion for new trial the proper mode of oorrecting error in the
dismissal of the levy in a claim case? Qiutere.
2. If a judgment is in excess of the amount declared for, it is an irreg
ularity, hut is not a ground to dismiss the levy thereunder.
3. If a defendant in attachment replevies property levied on, or if he
acknowledges service of the notice of the pendency of the attach-
ment suit provided by law, a general Judgment may be rendered
against him.
(a). An acknowledgment of service signed by one as attorney for de-
fendant is prima facie warranted until the contrary appears.
4. Where service has been had so as to warrant a general judgment in
an attachment suit, it need not follow the attachment.
(a). After such service and appearance thereunder, or after replevy,
the action may proceed to a general judgment, although the attach-
ment may fall by reason of irregularities.
Practice in the Superior Court. Judgment. Attach-
ment. Service. Before Judge Ebwin. Hall Superior
Court. September Term, 1879.
On August 2l8t, 1878, Buice sued out an attach-
ment against the Lowman Silver Mining Company, a
m SnPREltE OOOET OF QEOBQIA.
Bnlce W. The Lmnnui Gold and Silver Hlnkng CD.
foreign corporatioii, for |192.50, retnraable to Hall supe-
rior coart.
On the same day this attachment was levied on the tract
of land now in dispute.
On Angust 22d( it was levied on certain personal prop-
erty.
On Angnst 23d, the defendant gave a replevy bond, with
A J. Comer as security, the bond being signed by the de-
fendant, by J. J. Haydon, enperintendent.
On beptember 12th a notice of the pendency of the at-
tacliment and proceedings thereon was acknowledged on
behalf of the defendant by S. 0. Dnnlap, as defendant'^ at-
torney.
At the September term, 1878, of conrt plaintiff filed his
declaration on said attachment. This declaration was for
the snin of one hundred and ninety-two dollars and fifty
cents. The bill of particulars appeared to be for two hun-
dred dollars and fifty cents.
There was an amendment to the declaration increasing
the amount claimed to $200.50 and changing the items in
the bill, dated March 1st, 1879. On this amendment there
was an acknowledgment of service dated March Ist, 1879,
by S. C. Dnnlap, defendant's attorney. When presented
to the conrt the body of the amendment appeared canceled,
but the iicknowledgment of service of the amendment was
intact and the bill of particulars was for $200.50. No order
appeared either allowing the amendment or directing it to
be stricken.
At the March term, 1879, llio jury found a verdict in favor
of the plaintiff for $200.50, and :i f^eneral Judgment for that
sum was signed np against tlie defendant and sccnrity by or-
der of the conrt. Upon tlii.^ jiuigment the plaintifTs Ji.
fa. was issued April 2d, 1^T'.^ and levied on the tract of
land in dispute.
The Lowman Gold and Silver Mining Company claimcfl
it. On the trial, the court disinisRcii the levy. Plaintiff
moved for a new trial, whicli was refnsed, and he ex-
cepted.
FEBRUARY TERM, 1880. m
Baice M, The Lownuui Gold and ftilver Mining Co.
Marlbb & Prrry, for plaintiff in error.
Jaspeb N. Dorsby ; Samuel C. Dunlap, for defendant.
JacIebon, Justice.
The sheriff levied a fi. fa, in favor of the plaintiff in
error against the Lowman Silver Mining Company, on a
tract of land in Hall county as the property of defendant
\Vifi,fa. The land was claimed by the Lowman Gold and
Silver Mining Company, and when the issue was joined
and the parties went to trial, the court dismissed the plain-
tiff's levy, and that is the error complained of, made in the
shape of a motion for a new trial.
1. Whilst we cannot exactly see why a motion for a new
trial was made, as there was no verdict rendered to be set
aside, yet the point is made that the levy should not have
been dismissed, and that is a question for reyiew here.
2. Ought the levy to have been dismissed on the grounds
appearing of record ?
Those grounds are, first, that the judgment is for eight
dollars too much, more than declared for. Secondly, that
it is a general judgment to which the party was not entitled,
the judgment being based upon an attachment, and thirdly,
because the affidavit in attachment is only for $192.50, the
bond is double that sum, and in such cases at least the ex.
cess of the verdict and judgment over the sum attached for
is fatal.
If the judgment be general, the excess is a mere irregu-
larity, 8 Qa., 114; 14 /J., 589; 33 lb., 161; 33 II.,
696 ; 46 11., 454.
3. The defendant replevied at least the personalty levied
by attachment and gave bond for condemnation money,
and by attorney at law acknowledged service. These or
either of these acts gave the attaching creditor the right to
a general judgment. Code, §§3309, 3319, 3328. The at-
torney at law had the power to acknowledge service, at least
«2 sDPKEME COtfET Op QEOKQlA.
Balce m. The Low man Oold ud SUtct Mining Od.
until the contrary appeared. Code, §3337 ; 36 &a., 108 ;
39 n., 394.
The jndgment therefore is jteneral and was legally made
BO. If general, the claimant conld not attack it collaferally
for the irregularity of being eight dollars ove r the amonnt
declared on. 20 Ga., 94 ; 47 lb., 2*^5 ; Tharp vs. Tumiin,
Pollard V8. King, last term, not yet reported. So that it
was wrong to dieiniBe the levy because the jndgiuent was
too large — where the court below put tlie ruling.
4. Nor should it have been dieniissed on either of the
other gronude. Claimant's connsel contended that the at-
tachment feature should appear in the judgment, even if
general, in order to have the^. fa. follow it and to desig-
nate the property attached to be tirst levied, nnder sections
3338 and 3329 of the Code ; but we think not. The at-
tachment may fall, and yet tiie action proceed if notice hu
been given, or even property replevied, perhaps — Codfe,
§3309 ; 44 Oa., 454. And those sections cited, 3328-9, an
thorize a general judgment withont any addition thereto, or
modification thereof, so that after notice and appearance,
thongh affidavit and bond were ^o Irregnlar that attachment
fell, the snit by the declaration survived.
On the whole, it is clear that the jndgment is not void, but
valid, tfae^'.ya. followed it and should have carried the case
to the jnry for trial on the facts. The judgment is re-
versed because the levy was dismissed.
Judgment reversed.
FEBRUARY TERM, 1880. 773
Kieth ve. Catchings.
KlETH V8, CaT0HING8.
1. In 1878 the Freedman's Saving & Trust Company had authority un-
der their amended charter to loan money secured by title to real es-
tate. A deed made for such purpose conveyed title, and therefore a
subsequent purchaser under execution against the grantor simply
acquired the right remaining in such grantor, *.o-wit : to redeem by
payment of the debt.
2. Evidence to show fraud in the making or procurement of the deeds
constituting the chain of title from the F. S. & T. Co. to the de-
fendant, was inadmissible unless notice thereof was shown to the
latter.
8. A quit-claim deed from the original grantor to the purchasers from
the F. S. & T. Co., executed long after he had parted with his title,
and an obligation back to him going to show that he had an interest
in the land, were inadmissible as based upon no consideration and
as totally irrelevant.
4* A legal title and actual ownership in such grantor after he had con-
veyed by deed to the F. S. &T, Co. cannot be shown by parol evi-
dence.
5. The transfer by the grantor of the bond to reconvey from the F. 8.
& T. Co. to another, no matter with what object, could not affect
the title of the party holding under the deed until the terms of the
bond were complied with.
6* The legal effect of the deed and bond to reconvey was for the court,
and parol proof tending to show that they constituted a mortgage
was properly excluded, the instruments being unambiguous, and
no charge of fraud, accident or mistake being made.
7. A ground for new trial certified by the presiding judge not to be
true, cannot be considered.
8. After the grantor parted with the title, no subsequent act of his
with other parties, whether fraudulent or not, could affect such
title, and therefore all evidence to show such fraud was properly ex-
cluded.
9. It was not error for the court, after the question of law upon which
the case must turn had been fully argued and the evidence closed,
to announce to counsel that the principles involved had been settled
in his mind, and then to read in the presence of the jury what he
should charge. If counsel had new authorities to read, or addi-
tional reasons to submit, it would be the duty of the court to hear
him.
10. The instructions of the court, and the refusals to charge, were in
accordance with the principles herein announced.
11. The verdict was in obedience to law, in conformity with the evi-
dence, in harmony with the equity, and in strict accord with justice.
71* SUPliEME OOtJBT OF GEORGIA.
KMh u. Citchlngi.
13. The principles of law ^^eta'ing a case, separately coDsidered, art
not changed, nor their power lessened, by massing the objecliont
thereto together, and in their totality presenting them to the conn.
Corporations. Banks. Title. Mortgage. Debtor and
creditor. Evidence. Contracta. New trial. Practice in
the Snpreine Court. Practice in the Soperior Conrt.
Before Judge Billter. Fulton Superior Coort. Octo-
ber Term, 18T8.
Reported in the opinion.
Hopkins & Gi-bnh ; Reinhaeih & Hooks; S. Weil,
for plaintiff in error.
Mabshall J. Clarke, for defendant.
Crawford, Justice.
The plaintiff seeks to recover a lot of land in the city of
Atlanta nnder the statutory form provided for sncb cases,
and in support of his suit he submits in evidence to the
jury deeds from James Atkins to R. S. Eggleston, dated
December 9th, 1870, from PerJcerson, the sheriff of Fnlton
connty, to J. R. Wallace, dated March 4th, 1874, reciting
that the land was sold under a j?. /a. in favor of J. R-
Wallace, as the property of Eggleston, and then a deed
from Wallace to himself. By Chamberlin, a witness, he
showed that Catchinge, the defendant, held under and
through Eggleston, and was in poest'ssioti when suit begwi.
By Fowler and Bass, that wlirn Wallace's judgment wa«
obtained Fowler had authority from Eggleston to sell ihc
lot, and there rested his cause.
The'dcfendant siipported his title by deed from Egglt-
Bton to the Freedman's Savings and Trust Company, dateii
Jannary a7th, 1873, a bom! Iioing given tn reeouvey w
Eggleston upon the payment of tlie sum of $500.00 and
interest, also a deed from three eommissioners of the Freed-
FEBRUARY TERM, 1880. 776
Kieth TV. Catctalngs.
man's Savings and Trast Company to Chamberlin, Boynton
& Co., dated April 24:th, 1877, accompanied by certified
transcripts from the treasury department of the United
States showing title vested in them, and a deed from H. S.
Johnson, a partner of the hoase of Chamberlin, Boynton
& Co., to his partners as individuals, dated May 5th, 1877,
and then a deed from the said Chamberlin and Boynton to
Catchings, the defendant.
Upon the testimony and the law as given in charge, the
jury returned a verdict for the defendant, and the plaintiff
moved a new trial for errors which he claimed to have been
committed.
1. The first <assignraent of error is that the court should
have ruled out the deed from Eggleston to the Freedman's
Savings and Trust Company ; their bond to reconvey title
to Eggleston upon the payment of the $500.00 ; the deed
to Chamberlin, Boynton & Co. ; also the certified copy of
the manuscripts showit}g the authority of the commissioners
to make the deed and transfer the note of Eggleston.
The objection to this testimony nowhere appears to have
been stated to the court below at the time when it was
offered, nor in the motion for a new trial, but upon the ar-
gument before us it is insisted that it was illegal because
the Freedman's Savings and Trust Company had no power
under their charter to hold real estate, or accept it as secu-
rity for loans, and therefore that the deed executed by
Eggleston to the Freedman's Savings and Trust Company
was void.
This company was chartered in 1865 with power '*to re-
ceive on deposit such sums of money as may be from time
to time offered therefor by, or on behalf of, persons here-
tofore held in slavery, or their descendants, investing the
same in stocks, bonds, treasury notes, or other securities of
the United States."
In the year 1870 their charter was amended " by adding
thereto at the end thereof the following words :" " And to
the extent of one-half in bonds or notes secured by mort-
gage on real estate in double the value of the loan."
776 SUPEEME OOUET OF GEORGIA.
KleLhn. Cklcblngs.
This loan af $500.00 wau made to Eggleeton, And as a
security for its payment the deed was executed and » bond
given to reconvey npon the payment of the debt, the eon-
tract having been made and tlie deed executed in 1873,
nearly three years after thf. amendment of their charter.
If just euch a contract had been made between two of the
citizens of this state, we apprehend that there would be no
division of opinion as to the exact legal rights of the
parties.
Corporations created by other states, and even by foreign
nations, are recognized both by our taws and our courts,
and no reason occurs to us wliy l)ie same rights do not at-
tach to this that would to any other.
Since 1871 certainly, and perhaps before, whenever any
person conveyed real estate by deed, to secure the payment
of a debt, and received a bond for titles back, conditioned
that upon the payment of the debt the land should be re-
conveyed, euch conveyance passed the title of such property
for that purpose to the grantee, the estate remaining in
the grantor being purely equitable, and consisting of his
right to redeem the legal title on the payment of the money.
It is nn equitable mortgage in fact and effect, and nntil the
grantor puts himself in position to claim the lienefit of his
equity uf redemption, he cannot defeat the rights srisiog
to others under his contract.
A purchaser of his interu.-t at i^heriff's sale stands in nu
better relation to it than be diii ; lie too must pay the money
before he can claim the land. This has been ruled in the
54 Oa., 45; 55 lb.. 650, il-2. tV.n ; 57 Il>., fiOl. And in
the 59 Oa., 507, it was held, .liistice Bleckley pronouncing
the opinion, that this was the; iuw prior to the act of 1871.
It would seem, therefore, that no question conld be better
settled.
2. That the court erred in isut allowing the introdnctioii
of evidence going to show fnnul in the procurement and
making of the deeds by the FrwHidian's Savings and Trust
Company, or their agents or iiltDrneys, or any one holding
under them, without first, briti^'tn^ it home to defendanti
FEBRUARY TERM, 1880. Ill
Kieth V8, CatchiDgR.
eapeciallj when the plaintiflf held under a sheriff's deed,
and the judgment was upon a debt existing before the sale
of the laud to the Freedman's Savings and Trust Company
by Eggleston.
The record shows that no evidence was offered to show
fraud in the procurement or making of the deed, and that
the opportunity to establish fraud in the defendant, or
those under whom she claimed, if notice thereof were
brought home to her knowledge, was extended tp the plain-
tiff. This being the fact, we think that the second ground
was properly overruled.
3. Because the court ruled out a quit claim deed from
Eggleston to Chamberlin, Boynton & Co., and an obliga-
tion back to Eggleston, going to show that he had an inter-
est in the land, there being a consideration expressed, and
an agreement with Eggleston touching the same.
The testimony shows that this deed was made long after
Eggleston had parted witli his title ; that there was no con-
sideration paid for it, whilst the obligation was nothing but
an agreement to look to the land alone for the payment of
the debt.
Under the view which we have taken of the original
transaction, and the relative rights of the parties, the intro-
duction of this deed could not have changed in any degree
the effect thereof, and it was properly excluded.
4. Because the court would not permit the plaintiff to
show by parol evidence that Eggleston was the acttiaZ owner
of the land at the time that the judgment was obtained and
the sale made.
A legal title and ownership to land cannot be shown in
that way.
5. Because the court refused to allow testimony to show
that the bond for titles to Eggleston was fraudulently trans-
ferred to Allen, to defeat the judgment under which the
land was sold.
The transfer of this bond to Allen or any one else, could
not affect the title of the party holding the deed, until the
T78 SUPREME COURT OF GEORGIA.
Kletb u. CatcblDgi.
terms of the bond were complied with, and the rights of
the owners of the land eecnred, hence there was no error in
this niling of the conrt.
6. Because the court erred in not allowing plaintiff to
show by parol proof, that the deed from Eggleston was
nothing but a mortgage to secnre the $500.00, and was 60
iindei-stood.
All the title papers were in proof, had been offered and
received, they were without ambignitics, and withont the
charge of fraud, accident or mistake, hence their legal force,
intent and effect were questions for the con* t alonu, and
parol proof waeinadmieeiblc. Questions of constrnction are
for the court, anibignitics, frand, etc., are for the jury,
7. This ground not being verified by the court, but on
the contrary certiSed to be erroneous, cannot be considered.
S. That the conrt held that the plaintiff could introduce
no testimony to prove fraud that took place after the sale of
the land to the F. S. & T. Co., anless a tender of payment
was made.
When the deed was given by Eggleston to the F. S. & T.
Co., no act of his thereafter with other parties could affect
the rights of the company, or change the title, or render an
original legal transaction f raudnlent, which was not eo at
the time, and the rnling of the court was therefore right
as to the admissibility of such testimony.
i). The error complainuil ul in [hie ground Is, that after
the testimony had closed, tliu court announced to counsel
that the questions of law involved in this case had been set-
tled in his miud, and tbcti n^nd hi tiic presence of the jury
what he should charge.
Where the questions of law arising under the evidence in
a cause, and upon which llie verdict must inevitably turn,
have been presented, fully argued and ruled upon during the
progress of the trial, we cjin see no objection to the court's
stating to the connsel how and in what manner ho will io-
struct the jury thereon, thus saving needless argnuiont and
nnuecessary delay. Of course if the counsel were to notify
FEBRUARY TERM, 1880. 779
Kieth M. Catchlogs.
the judge that he had new authorities to read, or additional
reasons to submit, it would be the duty of the court to hear
him, and doubtless this would always be done.
10. Because the court refused to give in charge to the jury
certain written requests asked for by plaintiff's counsel.
We think that the first of these was substantially given,
that the second and third were properly refused under the
law and the proofs, whilst the fourth was rendered unnec-
essary by plaintiff's amending his description of the lot to
correspond with the deeds.
11. Because the court erred in charging the jury — that if
£ggle8ton, before the judgment was obtained against him,
had hona fide given a deed to the Freedman's Savings &
Trust Company to secure the paynient of a loan of $500.00,
neither Eggleston himself nor Kieth, who claims under him^
can recover without first paying the debt, or tendering the
money. This was a proper charge, as we have endeavored
to show under the first assignment of error.
12. Because the verdict was contrary to law, the evidence,
the equity and justice of the case. In our judgment the
verdict was in obedience to law, in conformity with the ev-
idence, in harmony with the equity, and in strict accord
with its justice.
13. This ground is disposed of by the ruling in the 5th,
and need not be repeated here.
14. The substance of this ground is, that the court erred
in rejecting parol proof going to show that the land actu-
ally belonged to Eggleston when it was sold under the^./a.,
and that the deed was only treated as a mortgage by the
Freedman's Savings & Trust Company, that Wallace was
put in possession, and that the transfer of the bond was a
fraud, that Eggleston was insolvent, that he was not a negro
but a white man, that the company was not authorized to
make the contract, and that suit was brought on the prom-
issory note.
This broad exception it seems, was intended to include
the whole line of the plaintiff's right to recover the land in
764-49
SUPREME COURT OF GEORGIA.
diepnte, arising both under the law and the evidence, that
which had been rejected and that which had been admitted.
The opinion of t^iB court is that the principles of law gov-
erning a case separately considered are not changed, Dor
their power lessened, by massing the objections thereto to-
gether, and in their totality presenting them to the court.
Having disposed ot all the exceptions, it would not be
travelling out of the record to say, that the righta of the
plaintiff in this suit are clear and indispntable, and his rem-
edies now are ample for their enforcement, bat he has not
availed himself thereof by this proceeding.
Let the judgment stand affirmed.
SooTT vs. McDakikl.
, Wliere tbe certiQcule of tbe judge of Ibe county court is that " pe-
titioner hAB paid tlie costa in the above case, as follows," naming
items, the etrHorari nill not be dismissed becftuse (he certiflcal« did
not allow that all costs had been paid.
. When the error complained of turns upon a ruling based on the in-
spection by the court of a set of interrogatories used upon the trial,
the edrtiorari will not be dismissed because Uie original iuterrogato-
riee and anawera were attached to the petition.
:. Commissioners are officers of court for the purpose of taking tosCi-
mony, uod the presumption is that they performed their duly by
having the answers written by a competent person. Nor ia Utia pre-
sumption rebutted, so as to require the rejection of the interrogato-
ries, by a mere inspection of Ihem, without more, although the haad-
wriliug in the body of the uii-wi.r-, llr^ signulurea of the i;.i|imili
fctdnurs itnii tliut iif l.Le witncfia, may cuch iippcar lu Iju liiScrunl.
We kuiiw of no law to prevent the employmcut by cummissionen
iif aome diaintcrealed person to do the clericat work ot trauscribiug
the
Certiorari. Interrogatories. Evidence. Prwamption.
Practice in the Superior Court. Before Jiidgv Spekb.
Rockdale Superior Court. Augnst Adjourned Term, 1879.
To the report contained in the decision it is only aeoes-
aary to add that defendant in certiorari moved to <lieintBS
FEBRUARY TERM, 1880. 781
Scott vs. McDaniel.
the case because the certificate of the county judge did not
show that all costs had been paid ; because the original in-
terrogatories and answers sued out in the county court for
Scott were attached to the petition for certiorari; and
because a new trial had been granted in said cause before.
The motion was overruled. The certificate of the county
judge is that petitioner " has paid the costs in the above
castas follows:" (naming items for trial, issuing commis-
sions and &uhpcenas).
Warner, Chief Justice.
This case comes before this court on a bill of exceptions
to the judgment of the court below in overruling the de-
fendant's motion to dismiss the plaintiff's certiorari on the
grounds therein stated, and in sustaining the same on the
ground set forth in the judgment of the court as contained
in the record.
1, 2. There was no error in overruling the defendant's
motion to dismiss the certiorari.
3. It appears from the record and bill of exceptions, that
on the trial of the case in the county court, a set of inter-
rogatories for a witness by the name of Scott was offered to
be read in evidence by the plaintiff (which interrogatories
had been taken out by the defendant) when the defendant
objected to the reading of the same on the ground that the
answers were not written by either of the commissioners
nor by the witness with their consent. The county court
overruled the objection, and the defendant sued out a cer-
tiorariy and on the hearing thereof in the superior court
the court sustained the certiorari upon that ground and
ordered a new trial, the court deciding the question as ap-
pears in its judgment "by inspection of the answers."
The answers of the witness appear to have been taken be-
fore the commissioners, signed by the witness, and attested by
them in due form as required by law. Witnesses may write
out their own answers in the presence of the commission-
782 SUPREME COURT OF GEORGIA.
Scott H. HcDuilal.
era and by their consent, bnt in no other way shall they
(the witneeeeB) prepare the same. Code, §3887. The com-
inissionerB were the ofificers of the court for the purpose of
having the intcrrogHtories properly exeunted, and the legal
presumption is that they performed their duty in that re-
spect, especially in this case when they were selected by the
party who now objects to their action as to the manner in
which the interrogatories were executed, and the impor-
tant pi-actical question is, whether that legal presumption
can be rebutted by the mere inspection of the answeraof
the witness, his signature thereto, and the signature of the
commieeioners, without any other evidence. The court be-
low held that the county court erred in allowing the an-
swera to be read, because from its inspection of the an-
swers the same were not written either by the commis-
sioners, nor by the witness. We are not aware of any law
which prohibits the commissioners from employing a disin-
terested person as a clerk to write the answers of a wit-
ness examined before them, and to authorize justice courts,
county courts, or any other court, to assume, by Tnere in-
8}>ectio7i, without other evidence, that the commissioneis
had violated their duty and the provisions of the 3S83d and
S^Slth sections of the Code, would be in our judgment to
establish a dangerous practice ; therefore the sustaining of
the c^tiorari on the ground as set forth tn the record was
error. This not being a motion for new trial, our judg-
ment is confined to the errors alleged in the bill of excep-
tions.
Let the judgment of the court below be reversed.
FEBRUARY TERM, 1880. 783
Wright, comptroller-general, et at. w. The Southwestern Railroad Co.
Weight, comptroller-general, et al, vs. Thk Southwestern
Eailboad Company.
1. Where any ministerial officer of the state is attempting to collect
money out of a person, natural or artificial, under the forms of law,
but without any yalid constitutional law to authorize the process he
uses and calls an execution for taxes, it is the duty of the courts, on
a proper case made, to arrest the proceeding in some of the modes
known to the law, and afford relief to the party complaining.
2. Equity has jurisdiction to interfere in behalf of the railroad company
on the following grounds: first, because exactions are pressed upon
it, in the form of annual taxes, inconsistent with and violative of its
chartered rights, and destructive of its franchise; secondly, because
the exactions might be repeated if these are successful, and suits
and costs be multiplied ; thirdly, because it was misled by the action
of the comptroller and a legal fraud perpetrated upon it ; fourthly,
because of mistake caused by the defendant's conduct : and fifthly,
because the numerous questions made as to different parts of the
road, and the liability of each portion or branch, most of them
dependent for adjudication on separate charters and amendments,
and other questions in respect to other items of property in and out
of this state, and in what degree or how connected with this road,
and whether liable or not to be taxed, make the case complicated
to a degree that a court of equity can better unravel it than a court
of law.
8. Tax executions having been issued against the railroad and levied
upon property in Bibb county, by the sheriff thereof, and the prin-
cipal office of the road being in that county, the superior court
thereof had jurisdiction of a bill to enjoin the collection of the^./o*.
That another railroad, the principal office of which was elsewhere,
had leased that road and agreed to pay its taxes, would not alter the
case.
4. Under the facts of the case, it is apparent that to collect the tax
upon the entire property of the railroad, without regard to the limi-
tations of its charter, would be unconstitutional, and the chancellor
was right to enjoin further proceedings until the final hearing of
the case.
(a). The status of the various parts of the road as to taxation defined.
5. Whilst the words in limiting the taxing power of the state are very
broad in the original charter of 1845, the limitation covering the
said railway and its appurtenances and all property therewith con-
nected, yet, under the rules for the construct ion of such grants, they
will not be construed to embrace real estate other than that the
continuous use of which is necessary for the road — that is, that lying
each side of its track , and that covered by its depots, yards and
shops and other places necessary to the full exercise of its franchise.
SUPREME COURT OF GEORGIA.
Wrifthl, eomptrollerijenenJ, rf al. w. Th» SonUiwolcrD Billromd Co.
(a). Stock in tliH compaay'a uwn road held by iUelf, or io oLher roads
in this state, wbose cb^rlerB limit or exempt tazalion thereoD, and
wbo9e income is taxed, ie not liable; and slock held by the company
in lallrciada wltbout the limits of tbia state in not taxable bere.
(b). Bonds, notes, or other mere evidences of debt, unless tbey form
part of the income of the road, are subject to the ordinary rates of
taxation. So, also, water-craft belonging to the company in 18T6
and 1877.
6. The company has acted in good faith, has offered to do equity, was
misled by tbe officer of the slate, and bas not lost its rights by its
own laches; therefore this ia not a case to warrant the enforcemEBt
of penalties for default,
7. As the company owes the state tax on part of its property, not cot-
ered by tbe limitations in Its charter, it would seem equitable that
it sbould pay inlercal at leaat from the time the tax was claimed by
the olBcers of the state.
Injunction. Tax. OonBtitntional law. Railroads. Laws.
Stock. Before Jud^e S1UHOH8. BibbCoantj. AtCtiam-
bere. December 22iid, 1879.
Reported in the dccUioii.
R. N. Ely, attorney-general ; R, Toombs, for plaintiffs in
A. R. Lawton; Lton & Greshah, for defendant.
JACKiON, Justice.
The Sotitbwestern Railroad Company brought their bill
in equity against Wright, the cotnptrolW-gcneral of the
state, and CheiTv. ihr i^ln'rilT of Bibb euniity, to reetr&ia
them from the npllii-liiiii m1' ■.■crt;iiii^rf._/f7«. for taiea, pur-
porting to be IfiTiHy ■iiii; the state for the yoare L876 uid
1877, butaJtegc'l in tli>' bill to be imconetitntiunHl and wbcdiy
illegal and void. Tlic cliiint^ellor granted the injnnplioD,
and the defendanlf i'\Cfpted.
The exeeutioiin art' i^iieii for some twenty odd thntisdnS
dollars, and for }>oii:iltii;,'* tor fiiilnre to rettirn and pay Uxo,
each in three times tin:- iimount uf tbe tux uUegud Ut Ix^ due,
the exact amoiini {n.:mg for Che year 1874> $at;,(l42.29-IOD
FEBRUARY TERM, 1880. 785
Wiif;ht, comptToller-general, etai.vs. The Soathwestern Railroad Co.
and for penalty $79,926,30-100, and for the year 1877 $28,-
203,29-100, and for penalty $84,009,87-100.
They were issued by the comptroller-general on the 3d
of December, 1877, on assessments made by him of the
value of all the property of the company, based upon re-
turns of the company for the years, and made in the years,
1874 and 1875. The tax is on the entire road-bed, bridges,
iron, locomotives — everything belonging to the railroad
company as contained in the returns and valuations made
in 1874 and 1875, and for three times that sum for penalty ;
in the aggregate, over two hundred thousand dollarp. The
tax is at the same rate per cent, ad valorem as the property
of all the people of the state is taxed, without regard to
any limitation thereon in the charter of the company, and
the executions are levied on the depot and other railroad
property of the company in the city of Macon and county
of Bibb. To these tax executions the company filed affi-
davits of illegality under the act of 1874, renewed in 1875,
and in 1876, which provided that on certain conditions pre-
cedent being complied with, these affidavits of illegality
might be taken, returned to the superior court of Fulton
county, and appealed by bill of exceptions to this court.
This was attempted to be done, but no full and complete
returns having been made as contemplated by the act of
1874 as one of the conditions precedent, this court dis-
missed the illegalities. See pamphlet report, February 9th,
1879, p. 74.
In the opinion or syllabus thereof so ordering the affida-
vits of illegality to be dismissed, the court intimates that
owing to the apparent intricacies and complications of the
case of this company, its more appropriate and complete
remedy would be in equity. So we have now before us
this bill in equity seeking to restrain the sheriff of Bibb
county and the comptroller-general from further prosecu-
ting the executions and levies alleged to be wholly uncon-
stitutional and void.
It is substantially alleged in the bill that complainant
786 SDPKEME CODKT OF GEORGIA.
Wrigbt, comptrolkar-gnier&l. tt al. m. The 8t
failed to make the fall retornB required by the act of 1874,
Id order to have the affidavits of illegality tried, becaaee it
was misled by the action and condnct of the comptroller-
general himself — that tax execntions, like these for 1876
and 1877 now being pressed against the company, were
issued for 1 871 and 1875, aad the qnestions of their validity
were tested before the SDperior court of Fnlton county
nnder the act of 1874, full returns having been then made
pursnant to that act ; that the case was taken thence to this
court, and hence to the anpremo court of the United States,
where it was adjudicated that the execution for 1874, jnat
tike these, was illegal and void, in that it impaired the obli-
gation of the contract made between the state and the com-
pany in respect to taxation and set oat in the company's
charter — the state having therein obligated herself not to
impose on the company a higher tax than one-half of one
per cent, on its net income; that the comptroller -general,
after this judgment of the sapreme court of the United
States, was of the same opinion with the complainant, that
the liability of the company fnr taxes beyond the limit
fixed in its charter was settled, and so believing sent to
complainant a schednle of returns to be made by it, em-
bracing only its gross and net income, so as to have the
company taxed according to its charter ; that it made its
returns for 1876 and 1877 in accordance with the schedule
BO sent it and the instnictions thus given it by tlie comp-
troller-general, and paid all tlie taxes required by that officer
and by the law for said years 1876 and 1877, for which it
has the said officer's official receipt ; that things moved on
smoothly in this \y:\y. i-nDiiiliiirKitit not drciiminf; tiiat it waa
liable for moro taxvs. until the 3nl of December, 1877,
when said exeeiitiorja for thepe large anms, and penalties
for not makinj^ tiio full returns, were, to its Hmazement,
issued by the cdrjiptrullcr-peneral and levied upon its prop-
erty in Macon wilhuut iiotioe or warning; that the oomp-
troller-general liail prior to that time, ever since the act re-
quiring full returns to be made by it and otiier companies,
FEBRUAKY TERM, 1880. 787
Wright, comptroller-general, «t al. V9. The Soothwestem Railroad Co.
sent to complainant a schednle of those returns, and after
this decision of the supreme court of the United States,
changed that full schedule, and sent out to complainant
that which it filled up and returned ; that this misled com-
plainant, and the subsequent issue of the executions taxing
all its property, in connection with the conduct of the
comptroller before recited, operated as a great hardship and
fraud upon the complainant ; that these executions would
not have been issued by the comptroller-general, who abso-
lutely refused to do so, but for the following executive
order from the governor of the state :
"Statu of Georgia, ExEcuTrvK Department,
"Atlanta, Qa., December 3d, 1877.
*' Ordered, that the comptroller-general issue execution for unpaid
taxes due the state against such railroad companies as may be desig-
nated by Robert Toombs, attorney for the state, and the attorney-
general.
(Signed) "Alfred H. Colquitt, Governor.
**By the GoTernor:
"J. W. Warren, See, Ex. DepX'
That thereupon, under the instructions of said attorneys,
and in obedience to said order, they were issued, and are
therefore not the act of the comptroller-general, but the
act of the said counsel ofr the state ; that all legal taxes have
been paid ; that the property levied on, to-wit : the offices
and depot and other property in Macon, is exempt from
the tax, being appurtenances to the road absolutely neces-
sary to use the franchise granted it for the public benefit
and its own chartered contract with the state, and if these
taxes are enforced in the manner and to the extent threat-
ened, its entire franchise will be destroyed and rendered
worthless. Therefore the prayer is that the sheriff and the
comptroller-general be restrained from further pressing the
Ji. fas, and levies made on the company's property, they
being for no constitutional, legal and valid tax, but for ex-
actions violative both of the constitution of the United
States and of the state of Georgia, and illegal and void.
To this bill, thus briefly epitomized, the comptroller gen-
.788 SDPREME COUKT OF GEORQIA.
' Wright, comptroller-geiienl.d Of. M. TtieSoDthmMeni Bulrud Go.
eral Wright, GoldBinith who iaaaed the executions being
no lonf^er in office, replied by auBwer that the superior court
of Bibb countjaea conrt of chancery and the jiidfi^ thereof
as chancellor, had no jurisdiction of said suit, and that
the same should bo dismiased — that the common law rem-
edy provided by statute, the act of 1874, was complete and
failed by reason of complainant's laches — that neither com-
plainant nor the comptroller-general, nor the sheriff had
any interest in the case. Complainant had none, becanee
the Central liailroad & Banking Company had leased its
road and bargained to pay its taxes — the sheriff had none,
because he was a mere executive officer, levying according
to official duty, and the comptroller-general had none, being
also a mere officer of the state, and that the entire thing,
stripped of disguise, was an attempt to evade the prohibi-
tion against judicial interference with the collection of state
taxes — the state being the real party in interest, and espe-
cially is the Bibb county superior court withont jurisdiction,
because no substantial relief is prayed for against any de-
fendant resident therein — that the United States supreme
court did not conclude the right of the state to tax this
company for much of its property, because sncb property
was not the railroad-track, nor iron, nor any other tiling
"appurtenant to the road or connected therewith," in the
Bei>se of these words as used in the charter, and that the
legal taxes should be paid at any rate before the company
could be heard to set up any defense to that which it alleged
was illegal, and that, to say the least, much of the property
Wiis liable and tlio tax levied thereon was legal ami cunsti-
tntiiinal, and had not been paid or offered to be paid.
1. Tliese ;irc eubstaiitiatly the issues made in this important
litigation, and we have endeavored to give to them tliat con-
sideration which they merit, and apply the law as we un-
dorstaiid it to h11 the issues made by the pleadings. Fint,
had tho chancellor sitting for Bibb county and exercising
e<|Hity powers tiierein, jurisdiction to grant tho iujuuctiou
jjruycd for)
FEBRUARY TERM, 1880. 789
I « . ■ 1
Wright, Comptroller-general, et al. vg. The Southwestern Railroad Co.
The Code, section 3668, declares that " uo replevin shall
lie nor any judicial interference be had in any levy or dis-
tress for taxes under the provisions of this Code, but the
party injured shall be left to his proper remedy in any
court of law having jurisdiction thereof." Tliis section is
codified from the tax act of 1804, Cobb's Dig., page 1061,
where these words are found : "And no replevin shall lie,
or any judicial interference be had in any levy or distress
for taxes under this law, but the party injured be left to his
own proper remedy in any court of law."
The plain meaning of these words, as used in the act of
1804, is that the courts shall not interfere with the col-
lection of taxes imposed by that law. The words are " un-
der this law ; " if not imposed " under that law," then the
inference is that there may be interference by the judiciary.
In other words, if that law authorize any tax, its collection
by levy and distress shall not be hindered ; but if that law
does not authorize the tax, then it may be hindered by the
courts. And so it has been ruled by this court.
In Vdfwver V8, The Inferior Court et al.^ 27 Oa.^ 355,
Judge Lumpkin, after laying down the general rule that
the 2l8t section of the act of 1804, above quoted, does not
apply to municipal corporations and counties in their levy
of taxes, uses this language : " But apart from this plain and
palpable view of the case, the prohibition applies only to
taxes properly laid under the act of 1804, and acts amenda-
tory thereof. But suppose, as in this case, the inferior
court assumes jurisdiction to levy a tax without authority
of law to do so, or the ministerial officers of the state un-
dertake to collect a tax on property, not only not taxable,
but expressly exempt from taxation, would not the courts ar-
rest such an attempt, that not being a tax authorized by the
act of 1804, or any subsequent statute amendatory thereof ?
Most clearly. We hope the profession and the public will
apprehend this distinction, and that there will be less doubt
and confusion upon this subject."
It will thus be seen that if the tax were laid upon property
790 SnPREME OOUBT OF GEORGIA.
Wright. comptioUsr-SMienl. it oi. vt. Tlu SoothweaUni Ballraail Co.
not taxable, and especially if it be exempt from taxation,
the coartB would " most clearly," to use Chief JnBtice
Ldupein's words, " arrest " such an attempt.
The same constmction precisely has beeo given to sec-
tion 3668 of tlie Code above cited, winch indeed is but the
2l8t section of the act of 1804, applied to taxes laid in the
Code and amendments thereof. In the case of Barltm
et al. vs. The Ordinary of Stimter Co-unty, 47 ff/i., 643,
Chief Jnstice Wabnkb nses this language : "Section S6t8
(now 366S) of the Code declares that no replevin shall lie,
nor any jadicial interference he had in any levy or dis-
trees for taxes nnder the provisions of this Code, but the
money songht to be collected in this case ie not for any tax
legally imposed under any provision of this Code, or any
other Code, which in law would bind the people of Snmter
county to pay it, and the defendants, as secnrities of the tax
collector, to refund it."
So that it seems clear, from these adjudications, that the
eonstrnction pat upon the act of 1804, and the Code on
the subject of judicial interference, is that if the tax be im-
posed npon property not exempt, or on property npon
which a tax might constitutionally and legally be laid, and
if it were authorized by the constitution and laws of the
state, and thus became a valid law and a tax due the state,
then there could be no jadicial interference ; bnt if the act
under which the ministerial officer of the state was pro-
ceeding were nnconstitutional, by reason of the property be-
ing exempted by contract from taxation or otherwise, then
the judiciary should interpose and arrest the colleotion.
So in W/>ite vs. The Slate, 51 Oa., 354, Judge McCsy
expre^si^a great doubt of the constitntionality of the immu-
nity fnmi jiulicial interference on the part of the state, nod
the court rcfiisea to extend it.
Again, in City of Athens vs. Lorig et al., 54 6a., 38, the
same judge uses this language: "The general rule that it
is Dot competent for the judicial department of the goveni-
ment to interfere with the legislative department in the ex.
FEBRUARY TERM, 1880. 791
Wilghtf comptroller-general* ei al, vt. The Sonthweetem Railroad Co.
ercise of the taxing power, except in eases where it is at-
tempted to violate the prohihitiona of the constitution, is
undeniable." Thus it seems in his judgment that the
courts should arrest an unconstitutional exaction, though
authorized by the legislature, if that body violated the con-
stitution.
So also in Decker et al. vs. MeGowatiy 59 Oa.j 806, Judge
Blbcklby says : '' It is certain that as a general rule judi-
cial interference with the collection of state taxes, is for-
bidden (citing authorities). Perhaps there is not, save in
instances expressly provided for by the statute, a single
real exception to the rule, properly understood, the so-
called exceptions being only apparent. Nothing is a tax
but what has the nature of a tax, and is imposed by
some law. For an officer to exact money under the
name of a tax, when there is no law to warrant the exac-
tion, is not an attempt to collect taxes, but an attempt to
collect something else ; and the rule which excludes inter-
ference in the collection of taxes does not apply." And he
goes on and applies this test : " Conceding all the elements
of fact to be as the officer decides them to be, or as favor-
able to him as possible, would his action be legal or illegal ?
If legal, no interference ; if illegal, interference to the ex-
tent necessary for the citizen's protection."
Still on the same line of distinction, drawn by Chief
Justice Lumpkin in 27 Ga,j and the cases of 77ie Georgia
Mutual Loam Association et al, vs. McOowan et al.^ and
Burke et al. vs. Speer, in 59 Ga.j pages 811 and 353, follow
in the same direction.
And so also does 60 Ga., 505, the case of MiUer vs. Wil-
sotij where it is held that ^' in the absence of explicit lan-
guage clearly expressing the will of the legislature to tax
the bonds of the state, the general assembly will not be
presumed to have passed upon so grave a question of pub-
lic policy from the use of general words, especially when
like words have been employed in former acts, and the ex-
ecutive department has never construed them to embrace
792 SUPREME COURT OF GEORGIA.
Wilglit.caiaptnilJeT-gBasral.ef oi. tu. Tbe Soulbwcelern Killroad Co.
state bonde; tlierefore tlie tax act of 1877 empoweriaf;^ and
authorizing 'tlie governor, with the aeeietance of the comp-
troller-general, to aeBesB and levy a tax upon the taxable
property of the state,' cannot be legally conetrned to an-
thorize a tax upon the bonds of the state." In the same
case it is said that "no point has been made npon the qnes-
tion of jndicial interference with the collection of tasea
nnder section 3668 of the Code; and inasmuch as the case
involves no question of fact at all, but is one of pure law,
tlijs court will not itself, of its own mere motion, decline
to exercise juriidiction. Indeed it might well be doubted
whether under the constitution, either of 1868 or 1877, it
could decline to pass npon a question of pure law."
By reference to those constitutions it will be seen that
our fundamental law declares: "Legislative acts in viola'
ti'tn of this constitution, or the constitution of the United
States, are void, and the judiciary shall so declare them."
Cons. 1877, art. I, sec. iv, par. ii; Cons. 1868, art. 1, sec
xxxii.
It ie difEcult to see how the judiciary is to declare an act
unconstitutionally imposing a tax on the citizen void, if
the citizen has no right to appeal to the courts, and the
courts no power to interfere. Courts can only act on case*
brought before them, and if they cannot be brought before
them in some way, these words of the conatitntioD are mere
mockery.
It seems to us, therefore, clear, that where any minister-
ial officer of the state is attempting to collect money ont of
a citizen, or a person natural or artificial, nnder the forms of
law, Ijiif witlioiit iiiiv vjiliil i:,)iif,titiitiMiiiil hiw to authorize
tlic prtjCL'SS he iiacfl and fulls an execution for taxes, it ie tlie
duty of the foiirts, oii a proper case made, to arrest tho pro-
ceeding in some of the modes known to the law, and afford
relief to the party complaining.
And the general assembly in 1874, when it began a
system of more thorough investigation into the taxes paid by
railroad eptupaniea, and when itself seemed doubtful of tbfl
J
FEBRUARY TERM, 1880. 793
Wright, comptroller-general, #1 al. w. The Soathweetem BiUlroad Co.
_._,i..i.^ — -»■ .^^^i »^ - *»■ ■ —■■■■■■ ■■■ .. -■■■ ■»■■ ■■■■M
extent of its powers under the contract made with these
companies in their charters, recognized that simple justice
required some mode of testing before the courts the con-
stitutional and legal rights of these corporations, and pro-
vided a remedy. That remedy furnished a court and the
means of reaching it, wherein law and fact could be exam-
ined, and full justice be done. Therefore it cannot be said
that our state has been so unjust as to empower her minis-
terial officers to extort money from any person entitled to
her protection, without giving that person a remedy, if the
officer were proceeding against the fundamental law of the
state.
This company used this remedy, and tested the main
question made in the record, by affidavit of illegality to a
similar tax levied on its property in 1874 ; and it was pre-
vented or misled by the acts of the comptroller-general in
transmitting to it a different schedule or form of returns,
after it had gained the case made before, from using the
same remedy to test this proceeding for 1876 and 1877. It
cannot be fairly said in a court of equity that it was the
laches of the company that it did not comply. It certainly
was not negligence unmixed with fault in the comptroller.
It was misled by his official act. If it made a mistake, the
mistake was caused by the change of the form of its return
sent it by the comptroller-general, and surely equity will
relieve against a mistake so superinduced. It is remediless
now under the mode provided by the act of 1874. It has
no remedy at law as the case now stands. It cannot make
now the return required to have been made in 1876 and
1877, because the time has passed ; and if it has any remedy
it is in equity.
Besides, this court at the very time and in the very act
of dismissing the case at law, because it had not complied
with the conditions required by the statute, which alone
gave the superior court of Fulton jurisdiction, announced
that it had a remedy in equity, and from the nature of the
case it was more complete than at law. The complainant
794 SUPREME COUKT OF GEORGIA.
Wright, comptroller-ienenl. «( al. ut. Tbe 9oaUiWMt«ii BmOnad Co.
might well add to itB diarge of being misled by the comp-
troller-general, the charge of being misled by this conrt,
if we ehonld bold that equity conid not give it any relief.
3, We hold that it had the right to relief in eqnity. First,
because exactions are pressed upon it, in tbe form of annual
taxes, iiK»)nei8tent with and violative of its chartered rights,
and destructive of its franchise ; secondly, because the ex-
actions might be repeated if these are successful, and suits
and costs be multiplied.; thirdly, because it was misled by
the action of tha^comptroUer, and a legal fraud perpetrated
upon it ; fonrtlily, because of mistake caused by the defend-
ant's conduct ; and fifthly, because the numerons questions
made as to different parte of the road and the liability of
each portion or branch, most of them dependent for adjudi-
cation on separate charters and amendments, and other
questions in respect to other items of property in and out
of this state, and in what degree or how connected with
this road, and whether liable or oot to be taxed, make the
case complicated to a degree that a court of equity can
better unravel it than a court of law. And more than all,
because the process of injunction seems necessary to arreet
what appears to be an unconstitutional exaction. Bur-
roughs on Tax., 3<I3, note and cases cited ; S2 U. S., 575.
3. If equity has jurisdiction, in what county shall the
bill be filed t The levy is made on property in Bibb ; the
wrong, if it be a wrong, is about to be perpetrated in Bibb ;
the sheriff of that county is the agent used to perpetrate
that wrong ; the executions are issued against the company
whose chief place of business and principal office is in Bibb;
the effort is made to collect the alleged taxes from this com-
plainant and not from tbe Central Railroad & Banking
Company ; urn! tljoiigh tliat company he. bound by contract
with the coiH|ihiinaiit to pay those taxes, stitl that does not
release the umiipliiinant, tlie Southwestern Railroad Com-
pany, from its higher obligation to the state to pay those
taxes, if leffal ; nor does it exempt the property levied on
from being subject to taxes by the state if legally imposed;
FEBRUARY TERM. 1880. 795
Wrigiit, comptroller generaU et al. vt. The Sonthweetem Railroad Co.
thestatecannot herself be sued, and the only two ministerial
officers she has, who are illegally attempting this wrong in
her name, are the sheriflE of Bibb and the comptroller-gene-
ral of Fulton, and against these officers alone can any re-
lief at all be had ; and the bill must needs be brought
either in Fnlton or in Bib », and the levy being made on
property in Bibb, and the sheriff residing there, the court of
chancery there is the better entitled to the jurisdiction.
4. It thus being shown that equity has jurisdiction, and
that the chancery court of Bibb county is the court which
has the better right to exercise it, we are brought to the
consideration of the merits of the case.
Was the chancellor right to grant the injunction ?
The tax is imposed on the entire property of the com-
pany, without regard to the restriction on taxation speci-
fied in its charter, and in tlie t^eth of the principle decided
by the supreme court of the United States, whose judg-
ment was made the judgment of this court, and trans-
mittedto the superior court of Fulton county for further
proceedings. The principle thereby ruled covers certainly
the much larger part of the property of this road as exempt
from taxation, except as limited in the charter, and which
has been paid for both years 1876 and 1877. Yet these
heavy taxes, with these heavier penalties, are sought to be
forced in the name of the gtate out of this company illegally
and unconstitutionally by these two officers, contrary too
to the spirit of the legislation of this state as shown in its
desire to have the questions fairly tested by the highest
courts of the country, and contrary to its own constitution
and to that of the United States, and the executions are levied
npon the very forehead — the marrow — of the property
which is exempted by that judgment.
If equity has jurisdiction and an injunction can ever be
granted in a case of this sort, where under color of tax
process illegal exactions are made upon a corporate body,
surely that case is before ns here. Therefore we think that
the chancellor did not err in applying it to these exccutionp,
V64-60
^m SUPREME COURT OF GEORGIA.
Wrtght. cnmptiolJer-gvnenJ, (1 of. h. 'Hie Soaibwealera Rilirowl Co.
and in staying the entire proceeding until an investigation
can be had fairly and fully on the final hearing, and a de-
cree be made settling the rights and obligations of the com-
plainants— those items of property on which it is, and those
on which it is not, liable to he taxed ad valorem.
It admits its liability to pay nothing more than it haf
paid. Hence, it cannot tender an; sum as due; bat it
offers' to pay whatever may be fonnd to be doe according to
law. This, we think, is a substantial compliance with the
Tole in eqnity which requires suitors in her forum to do
■equity, and therefore to pay what is owing before the com
plainant is entitled to relief in regard to what is not due.
We think too that on the hearing complete relief shonid
he affotded, and the whole matter be investigated to ascer-
tain precisely what property of the company should he
taxed and what should not be taxed — or in other words,
what hag paid its tax and what has not — or what is covered
by the charter and what not. And in order to facilitate
the trial, or a settlement if desired before trial, we will in-
dicate our opinion in regard to these matters now.
(a.) We think that the portion of the new Southweateni
Railroad, known as the former Muscogee Railroad, from Col-
um'jnG to Butler, is not liable to be taxed beyond the limi-
tation tixed in its charter, it being covered by the supreme
court decision.— 92 U. S., 665. That the road from Fort
Valley to Bnller is not liable fnrtlier than tixed in the char-
ter, because the wgrds authorizing the extension to Butler,
or Wolf Pen as then called, exonerate the extension from
further taxation — those words being : " That all the rights.
privilffjtB anil powers whatsoever, liei-ctofore granted to llic
Soutliweatern Riiilroad Company, shall extend over the mil-
road hereby Huthorized to be built." This confers on llie
(■xtentioN every right and privilege whicli llie Smith western
Company had, iind among the most valuable of tiiv»u riglitx
and jiiivilegeb is tlie right and privilege to be exempt from
taxation beyond -'one-lialf of one per cent, on its net an-
nual inuouie."
FEBRUARY TERM, 1880. 797
Wiif^ht, comptroller-geneni, et al. V8. The Son th western Railroad Co.
That the road from Fort Valley to Perry is not in this
litigation and cannot be brought in, because the tax execu-
tion is not issued against the Southwestern Company, and
that company has not, and could not, enjoin that process
4)gain6t another company, to-wit : the Fort Valley and Haw-
kinsville Company.
That the main line of road as authorized to be built ex-
tends from Macon to Fort Gaines, and is exempt from tax-
nation except as limited in its charter, the entire line through.
We construe the franchise to build the road " to some point
intermediate between Albany and Fort Gaines, or to any
point or points upon the Flint and Chattahoochee rivers
below Albany and Fort Gaines, to be agreed upon by the
•company, from which point the said company may build
branch railroads to Albany and Fort Gaines,'* contained in
the original charter of 1845, in connection with the amend-
ment of 1850, which provides " that if said company do
not build the main trunk of paid road to or below Fort
•Gaines within two yearp,'' etc., and so construing them, we
think that the company was authorfzed to build the main
trunk to Fort Gaines, anl has done so, and that the line
is exempt from further tax.
We think that the words used in the said amended act by
which we understand the road from Cuthbert, or a point
near Cuthbert, to Eufaula, was built, to-wit, " under the
rules and restrictions as they are now authorized to con-
struct said Southwestern Railroad," are not sufficient to
limit the taxing power on that road — from Cuthbert to
Eufaula, and that it is liable to such tax as is imposed on
•other property in the state ad val^rem^ of course deducting
what has been already paid by the company for its propor-
tion of the income tax.
We think that the branch from Albany to Arlington is
liable to the ad valorem tax, with the like pro rata deduc-
tion for its proportion of what income tax has been paid in its
behalf, because it is made expressly liable for '-such addi-
tional tax as the legislature may hereafter impose." And
798 SUPREME COURT OF GEORGIA.
Wright, camplTDllergi-nenl, tl al. n. The 6oiitb>c«(era Railroad Co.
wliuii a tax advalorem was imposed on all the property of
railroad conipaiiicB not limited as to taxation in their char-
tere, the additional imposition was laid on this branch, and
the company is liable therefor, "deducting; of course what
hae been paid as its part of the net income tax of the com-
pany.
We think that by the express langnage used in the
amendatory act of December 19th, 1851), by whicli the rail-
road known as the Georgia & Florida Railroad was consol-
idated with the Southwestern, it being completed from
Albany to Americiis, to-wit, "that the said railroad from
AmericHs to Albany shall be considered part and parcel of
the road of the Southwestern Railroad Company, and be
liable to pay to the state the same tax that the rest of the
Sonthwestern Railroad Company is liable to pay, and anch
additional tax as the legislature may hereafter impose," that
portion of the road is liable to pay the ad valorem tax less
its proportion of the income tax already paid ; but if it has
already by agreement paid an ad valorem tax at a certain
valuation then it is not liable to be taxed further for the
years embraced in the agreement; and we think that the
law officer of the state, the attorney-general, conld and did
bind the state by the agreement made pending this litiga-
tion.
In the statement that the line through from Macon t&
Fort Gaines is not liable to be taxed, except as prescribed
and limited in the charter of 18J5, of course we do not iu-
clnde the short track from Americus to Smitliville, as that
was part of the Georgia and Florida road, and is covered
by the reservation of the state'r rifjlit to tax when tiie South-
western was allowed to absoib and cunsolidate that road
with itself.
5. Whilst the words limiting the taxing power of the
state are very broad in the (•riffinal charter of 1846, the
limitation covering the said riiilway and its appurtenances,
and all property therewith connected, yet, under the rnltw
for the construction of such j^rants, they will not be cwi-
FEBRUARY TERM, 1880. 799
Wright, comptroller-general, et ai. vs. The Soathwestem Railroad Co.
fit rued to embrace real estate other than that whose con-
tiDiious use is necessary for the road ; that is, that lying each
side of its track, and that covered by its depots, yards and
«hop9, and other places necessary to the full exorcise of its
franchise. 40 Oa., 646, 661, 655; 34 Ver., 484; 72 111.,
452; 52 Miss., 127. Therefore, lands off the road, and
bought originally to procure cross-ties from the timber
thereon, are liable to the ad valorem tax.
(a.) Stock in the company's own road, held by itself, or
in other roads in this state, whose charters limit or exempt
taxation thereon, and whose income is taxed, is not liable;
and stock held by the company m railroads without the
limits of this state is not taxable here. Stock in a railroad
is really but so many shares of its property, and that prop-
erty is real estate, for the most part at least, and taxable by
the state in which the road is located.
(J). But bonds, notes, and all other mere evidences of debt,
follow the situs of the creditor, no matter where the debtor
lives. Code, §798; 50 Oa,^ 392. So, any such evidence of
debts dne this corporation, whether held on natural persons
or corporations, in or out of this state, are taxable. If,
however, merely income, and taxed and paid as such, they
ought not to be taxed again ; if invested, they should be
taxed ofl valorem. So, any water craft belonging to this
•company in 1876 and 1877 is also taxable.
6. We do not think that equity will allow penalties to be
exacted in this case. The company seems to have acted
with n desire to pay all the taxes it believed to be due, and
tried to ascertain what was due in the manner pointed out
by the act of 1874, and failed to make itself heard by the
conduct of the comptroller-general in not sending it a
schedule of full returns, but only of its income. It had
the right to test the legality of the tax by the act of 1874,
and the questions it has made are not such as appear to
have been captiously made ; but the matters of difference
between itself and the state ought to have been legally and
judicially settled and fixed, so that both parties might nn
800 SUPREME COURT OF GEORGIA.
Wright, romptrollor-genertl.rfa/ n The Southwestern R»l to .d Cn
derstatid tlieir rights. Whilst corporations should lie heM
to a strict compliance with law, and to tlie pajinent of
taxes due by law, yet all their legal rights slionld ho npliehl
just as fnlly and cheerfully l.y the state as the rights of
any citizen within its limits. And inasmuch as hy ita legis-
lation in 1874 and tlie following years, the state unques-
tionably indicated its wisli that ii fair trial on law r.nd facts
fihould be accorded to these corporations in respect to taxes
levied by the comptroller-general against them, both as ti>
law and fact; and as this corporation was misled liy the
officer of the state, so as theretiy to lose its mode of testing
these questions at law, we think that eijuity should secnre
to it a fair trial now both as to law and fact; as to fact,
in ascertaining the property if has Fubject to tax, and the
value thereof in 1876 and 1877. and as to law, in drawing
the line between what is exempt or limited Iiy charter and
what is not.
The value of the branches which we hold liable will be
ascertained in proportion to Die hnsineos done upon them
in connection with the main line. Some will he more
others less valuable. We do not think that the proportion
of number of miles alone of a branch to the entire line of
the road is a fair test. Some branches are very vainable,
some almost worthless on some roads. The value of these
branches can be ascertained by the business done upon
them in proportion to the general business of the road, and
the real valne of each at last ir< dependent on the business
it does, and not alone on the length of its line. But where
it is made part of the main line, and the new stock issued
to bnild the branch is incorporated into the general stock,
perhaps it is right that it ahoiild be valued in the propor-
tion of its length to the length of the entire road.
7, Where the complainant enters into the court of cijuily.
the universal rule is that it must do equity. And inasmuch
as it owes the state taxes, in our judgment, on part of iu
property not covered by the limitation in its charter, it
would seem perhaps equiuble that it should pay intere^t^
FEBKUARY TERM, 188<). SOl
Wright, comptroller-general, et al. as. The Soatbwcstern Baiiroad Co.
from the time the tax was claimed by the officers of the
state, at least ; bnt as this would depend on facts which
may shed further light in regard to whose fault caused the
delay in its payment, we do not now positively decide this
question. And indeed all the points decided may require
revision when the case is fully tried and all the facts are
bronght out. The views given above are merely indica-
tions of what we now think, from our underttanding of
this record as it now appears.
Considering, however, that the judgment of the supreme
court of the United States is confined to the question really
made there, that is, what effect the consolidation of the
Sonthwesteni and Muscogee Railroads had on the limitation
on the taxing power in the two charters, we are clear
that the principle ruled by that court only covers those
two roads and property belonging to each appurtenant
thereto, and cannot be extended to branches which were
constructed with different rights and privileges as to taxa-
tion, and to property not appurtenant.
But this company has been forced into a court of equity,
and is entitled to relief therein. The judgment granting
the wiitof injunction until the hearing is therefore affirmed,
and it is ordered that on the hearing the case be tried on
its merits, and that such issues bo made as shall bring ont the
whole truth on the facts, and the law as indicated above be
applied to those facts, subject to be modified by the chan-
cellor as facts other than those in this record may require.
Judgment affirmed, with directions.
,^.l
INDEX.
ACKNOWLEDGMENT OF SERVICE. See Servir^f.
ADMINISTRATORS AND EXECUTORS.
1. Time intervening between two administrations not to be count-
ed in determining bar of statute of limitations in favor of
estate. Weitman^ <utm*r, et al. vs Thiol et al„ 1 1.
2. Securing payment of bond and mortgage, administration de
bonis non having been granted in 1872 to one of several trus-
tees for purpose of. tbcy were not barred whilst he was sole
administrator, and when he administered assets and applied
them to debt without unreasonable delay. Ibid.
3. Linds cannot be sold by administrator whilst in adverse posses-
sion of heirs at law. Ibid.
4. Wife of non-resident who died intestate may, by comity, sue
in Georgia for year*s support, there being property here ; yet
amount of recovery will be regulated by law of domicll.
MUeheU vs. Word, guardian, et al.^ 208.
5. Florida, by statute of, widow entitled to dower in personalty
as well as realty. Jbid.
6. Grantee of executor who shows order from court of ordinary
to sell real estate of testator, need not introduce will in evi-
dence. Coggins vs, GHriswold, 323.
7. Wild land may be sold at private sale on leave therefor from
ordinary, and in same application there may be prayer to sell
cultivated and wild land and personalty, and at proper time
order may be passed to sell each. Ibid.
8. Leave granted to sell wild land at private sale, presumption is
that citation was in accordance with law, and that parties in
interest, had legal notice. Ibid.
9. Minor irregularities will not vitiate sale and defeat title of pur-
chaser, especially as against mere squatter. Ibid.
10. Paper by heirp authorizing administrator to settle certain land
sales of iatcbtate, properly admitted to show authority to re-
ceive from one uf purchasers price of that portion, and
thus to vest perfect equity against that heir to whom this part
fell in division. DuBose, adm'r, vs. Ball, 350
1!. Minors ool liilereslud bccmisc InaA Liut beeadlvMeit. auil lliic
part fell to nnollier who wm tuijurU. Ibid.
12. EsIop]K'il from eetliiii; up tilte ngAinst selilement, parly ron-
semiiig llicreli) WfUH, IIM.
I '. Purcliastr at admioislrator'a snlu caonol rupudinli; l>iil bccuuse
of ili^fi-clive Ulle, or no illk nt ull in inlestnti-. wlion lljerp ii-
uo frniid or niisrcpr(>sunt(irLon liy aihninislralor. iWiertv:
M-iarr. fidrn'r, 503.
14. W.irninly, nitmiiilBlrftlor cannot liiod eslato by. itiVf.
] . Lien oF judgmenLs diMrbiirgcd by adminiitliilnr'B sate; trxcep
lion wlierc k-vy liiis buen mode befure suit-, not iudude inug-
iniiry k-vy byrOB^'in of (lling of bill lo subJRCt lnod, RAeK.
triatee, tH. Geo. L tC Co'. To , 531.
] '. ^Security, ailniiaistnitor of ciinnni mliiiri! from bur of «lfllulc
so fur Bspriinnry rredilors muy be effucled tbcreby. £spr-
ciiilly when; note wiis burred before denlb of surety M'Bride,
rdM-i; v. //wh/cr. 055.
II Crcdilors of i;->liLle by uote received piiynicnts U)er«oii, SDd
ngreed In r.'lesse ndminlsLralor from liitblllly on nccount of
previous Improper paymetit of note barred by stetule; in
eubSL'cjiieiit suit by crmlllor liy account, such notes inadtnis-
sililc 10 Bbow outstanding dtbta of higher dlgnily. Thid.
15. A.ccnuiil» of no gre]ili:r dignity than pluiiitilTs, wLicb udminia
tral»r li.id paid in full, inadmissible to show full admiai<-
tralion. Ibid.
19. Annual returns, uoiie made, and do order granted allowing
commissions, out entitled thereto on issue uf ptrae lulmiitUirit
p((. Ibid.
30. Interest of exuculory dcri-er not
could be by executor. Dtan. t
21. Prescriptive title good HgiLlnst executor of estate is aUo good
ttgiiinst executory derive born tbereafler. Ibid.
93. Claim by one not a li-.wyer or counsel for admimstralrli. for
clerical BMistnnce to her in mnking out returns, not allowed
Jfifc. * Go. fl al. v». Faihody, adm'r. 739.
23. Life tenant sbould provide meaDS for her own burial, and r«.
mninder would mil. be Iccboiciilly cb irgealile wilh expense
tlicreof, yet. under liiicral provisions iit Ibis will toward.* life
tenant, aucb Item allowed. Ibid
24. Costs due orrtioary conslitmo proper and piior charge. I'-id.
S3. Wagon furnished by cblld of decedent to adminiairnirix. wbit
was his mother, for use of esta'e. and il wu so used, boir
wlin assented to such airan .^i^mcnt estoppc<l from otgectiDg U>
piky.iifnt of debt so conlra''tc.i, and creditor. »eek'ng in auV
INDEX. 805
jecl distributive shtire would only be 8ubro(:^ated to his riglit.s.
Ibid,
26. Interference witb regular course of administratioa not encour-
aged by giving preference to crt'ciilors who attach share of
distributee before administration has been completed , pro rata
payment of claims proper. J bid
27. Advancement by father to son of w^ool-carder, of value of
$1000,00, but former subsequently look possession thereof and
used it, he thereby became debtor to son. and statute would
run as well against that claim as any other. Claim barred
before death of father, not proper deduction from advance-
ment in settlement of estate. Persoll vs. Scott^ adm^r, 767.
ADVANCEMENT. See Adfninistralors and Executors, 27.
AGENCY. See PiHneipal and Agents
ALTERATION. See Negotiab'e Instruments, C.
AMENDMENT.
1. Judgment sustaining demurrer to bill affirmed, complainant
cannot subsequently amend unless he makes case for equitable
relief beyond a reasonable doubt; nor even then, if there has
been apparently needless delay, or if complainant has had his
day in court thereon. Picquet vs. City Council of Avg. etal.,
510.
2. New party cannot be introduced by amendment. Shealy, guar-
dian, vs. TooUf 510.
3. Nunc pro tunc order, motion to enter, amendment at instance
of movant destroying whole point of proceeding not allowed.
Lewis et al. vs. Armstrong, adm*r^ 64'$.
APPEAL.
1. Municipal corporation may enter appeal in forma pauperis
through chief executive officer. Mayor, etc. , of Sav vs. Bivwn,
229.
2. Mayor can only try and dismiss policeman injudicial capacity^
and appeal to mayor and aldermen in council will lie from
decision. Ibid,
3. County court of Rockdale, appeal from must be entered within
four days from decision, irrespective of time of adjourn-
ment. Black vs. Peters, 628.
4. Interest on liquidated amount sued for cannot be remitted so
as to prevent appeal from justice court. Howard vs, Chnm-
berlin, Boynton db Co., 684.
ARBITRAMENT AND AWARD.
1. Queslion ot sole of certain propen^ being snbiullted lo aTbilra-
tioD. part of It being in poasesslon of veudee, airard thai
veodor retain all property sold by bim, includes a re delirerj
ot that already deliTered to veadec, MuUif/an m. ftrrj.
adm'r, 5fl7.
i. Suit for amount awarded rendefi, property reinined by bim i*
proper deduction, burden of proof being on defeadanL Ibii.
8. Meanlug, award itself is best evidence of. Ibid.
A. Testimony of arbitrator as to wbat was intended, and liiscoa
Btruction of award, inadmissible. Ibid
Jt. Pending cause referred to arbilralina witboul order of court.
award returned and exceptions A\eA ibureto. on triHl of i^ue,
awardmay be introduced without beio^ proved. Il'irdin.a'r.
v. Almand. SdS.
6. Pending cause may Ije referred witbout order otoourL [bii
7. Exception wbicb alleges mere error in giving weight lo certain
parts of lesiiutony and failing to give proper weight u>
certain other parla. demurrable. Ibid.
8. Exceptions do not bring up whole case de aoro New evideace
inadmissible for mere piirposo of strenglbening c*se madf
before arbitrators. Ibid.
fl. Exception that awnrd Is contrary ti) evidence, if suJIlcient to
l)e considered at ell, is for Jury, Ibid.
10. Mistake to autborize setting aside of nwnrd must be shoTo:
iosuCBcleni lo infer mistalte because award nas againsl weight
of evidence. Ibid,
ARREST. See Criminat Law. 4.
ATTACHMENT.
1. Foreign corporation allowed by special act to contract with
municipal corporation on Qourgi^ line itnd to eileoil
road into that city, and made li>ible to suit in proper courts
of this state, not change its charucter as a foreign corporalioo
so as to prevent attachment. Remedy provided was merely
cumulative, SoulA Gar. R. R. m. Peo^»' Saving Jiutitvlith,
tic.. 18.
2. Pendency ot bill to foreclose mortgage on railroad iind for ap-
pointment of receiver, iu United States circuit conn of Soutb
Carolina, not afTect operation of attachment luws of this state,
though some of the plaintiffs in atlocbment were parties ds-
feudants before any levy vas made, and tbo otbers were made
so afterwards, tt not being a general creditors' bill. Ibid.
INDEX. 807
3. Foreign railroad, fact that attachmeat bus been levied upon
tbat part wbicb extends into this state and its appurtenant
property does not, without more, render levy illegal. Ibid.
4. Foreign corporation, attachments levied on property of in this-
state, and afterwards a receiver appointed for corporation in
its own state, before he can plead to or defend attachment
suits he must apply to court where pending and be made a
party. 1 bid,
5. Receiver, petition by to court to order property levied on,
turned over to him, not proper mode of disposing of attach-
ments. Ibid.
6. Purchase money, affidavit must so describe property as to cer-
tify to the officer what he is authorized to seize and sell.
Waxelbaum db Bro. vs, Pcuchal & Heidinga/elder, 275.
7. Partner, attachment sued out against on firm debt under §8276'
of Code, declaration need not be against both partners. Can-
jwn vs. Dunlap, 680,
8. Replevy of property, or acknowledgment of service of notice
of pendency of attachment suit, authorizes general judg-
ment against defendant. Buice vs. Lawman O. &,8. M, G. Co.,
769.
9. General judgment warranted by service, it need not follow at*
tachment. Ibid.
10. Action may proceed to general judgment after service and ap-
pearance, etc., though attachment may fall by reason of irreg-
ularities. Ibid.
ATTORNEY AND CLIENT. See ExecutioM, 3 ; Lien, 4.
AUDITOR
1. Appointment of, proper in this case. Jones etal, vs. Smith, gov.,
711.
2. Appointed to investigate accounts, auditor does not exceed
power in passing upon legality of vouchers. Ibid.
3. Exceptions filed to auditor*s report, judj^e should submit ex-
ceptions of fact seriatim to jury, but where they contain same
subject matter he may consolidate. Ibid.
BANKRUPT.
1. Plea that defendants had been adjudicated bankrupts, and
prayer that suit be stayed to await action of district court on
question of discharge, proceedings in state court should be
suspended. Cohen db Kaplan Wm Duncan db Joh%Bton^ 341.
2. Note, though payable to assignee or l>earer, and though sued in
representative CHpncity, yet courts of state hitve juriwllclioB
thereuf. Collier, attigitee, so. Barneg. 184.
I. Especially where plaintiff waa proceeding uaiter order of Uoi-
ted tftatea court passed under act of coDgress of June 23d.
1674, aod had so alleged id aiaendment. Ibid,
1. Di^maiids secured by colUterala hold Ijy bank against custo-
mer, part of whicli had been liquidated by note, and evi-
dence tending to show an accoimting and an accord and set-
ilemeul. in which the collaterals were divided between tbem.
the amount fulling to the bank credited on the gross sum of
its demandii, n new note tsken for the balance, and old notes
canceled und entered paid on discount book; Beld, that
transaction on face would operate as payment except as to
lialiince for which new note was taken, and if bank alleged
contrary, burden would be on it to prove it. Sift in. Gto.
y<it. Bank, 173.
'2. Cliarge in terms or by reasonable implication throwing burden
of proof on customer, necewitalos new trial. Ibid.
9. Burden of proof, even if on debtor, charge which submit*
whether "circnmslauces as demonstrated to tbem by the evi-
dence are of such a nnturo iis to raise the implication— the
necessary implicatiun — that il was diken in payment," put*
case loo strongly, and demands more llian the law would re-
quire to overcome such burdft: r.f j.ioof. Ibid.
BUND. See Mvnieipiil Corpt^ationn, 0.
BOND FOH TITLE. See ifee*, 14; Vendor .md r-ne',.ser.4.
BONDS. Sue CoiilnteU, 14.
CANALS. See CWirnon Carrieri, 1.
■CERTIFICATE. See BeidenM, B,
CERTIOIiARL
1. Claimant of private way iipjilli/d for removal of obstruciioas
under g788 of Code, and iici-upted a conditional onler, qiiea-
tion a8 to whether he Lu.-' ^implied with condition or not is
one of fact; and upon funlKT petition alleging compliaoca.
and praying for warrant to sheriff, eole question is whetbei
he has complied ornot, iinri commissioners should adjndfe
according to evidence ai]ii ri^fu^i^ or gmnt warrant without
more. On eertiornri Itia is sole mtiller for review, if commU-
sionershave conflned IhumselvcB to tiuestion. If they hsv*
INDEX. 8(»9
gone further udJ ordered way closed, lliis is an excess of au-
thority, and the certiorari, as to that part of the order, should
be sustained. Allen et <U. r$. Meyerhardt, S87.
2. Direction as to locating road or putting up gates is not within
scope of proceeding. Ibid
Z. Reversal of judgment of county court on certiorari, case re-
manded for new trial if questions of fact are involved. Shan-
nan cs. Daniel, 448 ; Star Olass Co. os. Longley dt RolnnMon, 576.
4. Return to writ accepts statement of counsel in petition, and
certifies same as fair representation of what transpired as far
a.<4 justice claims to remember it, defective, but certiorari should
not be dismissed. Remedy is by exceptions. Star Olass Co.
1^)1. Longley db Robintton, 676.
0. Exceptions Hied when case was called at first term out of its
order, not too late. Ibid.
'6. In.structions as to law should be given where case is remanded.
Ibid.
7. Certificate of magistrate that costs have been paid and security
given, unnecessary to attach to petition for certiorari before
sanction of judge can be obtained. FuUer v>i. Arnold et t/j?.,
509.
8. Clerk cannot issue certiorari unless there v as tiled within three
months from decision, petition sanctioned by judge, and cer-
tificate as to costs, etc., or pauper affidavit in lieu thereof.
Where certificate was not signed within three months, certio-
rari should have been dismissed. Ibid,
"9. County judge, certiorari to decision of in criminal case sought,
must appear that petition, duly sanctioned, was filed in clerk'x
office within ten days from trial. Morrison ©«. Sate, 751.
10. Affidavit on information and belief, since act of 1872, insuffi-
cient. Ibid.
11. Certificate of judge of county court is that petitioner has paid
costs in case, as follows, naming items ; certiorari not dismissed
because it failed to show that all costs had been paid. Seoit
vH. McDaniel, 780.
VZ. Error turns upon ruling based on inspection by court of set of
int'^rrogatories used on trial, certiorari not dismissed becau8#
originals were attaclied to petition. Ibid.
•CHARGE OF COURT.
1. Facts on which defence is based not submitted to jury by charge,
but excluded impliedly from their consideration, error.
Lynch vs. Qoldsmith, 42.
2. Impeachment of witness, material evidence confined to by
810 INDEX.
charge, when it should have been considered generally bj
jury, error. Flanegan o«. State, 52. .
3. Diverts mind of jury from true issue, charge which does, error.
Thompnon vs Dovglas, 57.
4. Involuntary manslaughter, that case might be not insisted on
in argument, or contended for before court, and such f!X»de
is not apparent from evidence, court need not charge further
than to read sections of Code which bear upon it, unless spe-
cially requested to do so. BrasseU vs. State, 818.
5. Statement of prisoner, no request to charge in respect to made,
and no injury done defendant by omission, not require new
trial. * Ibid.
6. Voluntary conveyance attacked solely on ground that donor
was insolvent, making no charge as to fraudulent intent, such
intent, apart from insolvency, is not in question, and instruc-
tions to jury which do not Iook to insolvency as necessary
fact, inappropriate. Cleveland et al. vs. ChamUiss, guardian,
353.
7. Epithets used by court calculated to affect evidence, objection-
able. Ibid.
8. Homicide sequel to pre arranged scheme on part of both com*
bat ants, court may, as starting point for further instructions,
charge as to legal consequences of such a combat resulting in
death, though evidence shows that after arriving one ceased
to intend, and the other ceased to expect, a meeting at the ap-
pointed place, and though no meeting there occurred. 0»
vs. State, 374.
9. Views, different, evidence susceptible of, it is proper to submit
law applicable to each state of facts to jury. IMd.
10. Construed as a whole, charge must be. Ibid,
11. Widest and most favorable view of evidence presenting no de-
fense, court may so instruct jury. Wmiams vs. Mc Michael, i45.
12. Question not warranted by testimony, to charge on error. AU
lanta & W. P*t Railroad vs. Johnson^ 447; Hardin^ «rV, m. Al'
mand, 582; Williamson vs, MeLeod, 761.
13. Assault and battery of nurse on child, request to charge that
absence of motive is circumstance that jury may consider as
favorable to defendant in determining her guilt or innocence,
properly refused. Moore vs. State, 449.
14. Argumentative or partial, charge of court was noi. BUI vs.
State, 453.
15. Weight of evidecce exclusively for jury; should not be coo*
trolled by charge. Fordvf, Kennedy, 537.
16. Case fully covered by general charge, failure to instruct Jory <m
INDEX. 811
particular branch, not error in absence of request. Hardin,
txW, f>$. Almand, 582.
17. Justice may or may not give law in charge to jury, at his option.
Adams et al. vs. Clark, 648.
18. Burden of proof, in charging as to, court should state what
testimony would shift the onvs, rather than when it would be
changed. Clark vf. Cassidy, adm*r, G62.
19. Plead setting up various defenses, omission to instruct jury to
return upon Mrhich rendered, requires new trial. Ibid.
20. Liaw fully argued and evidence closed, not error for court to
announce to counsel that principles involved had been settled
in his mind, and then to read in presence of jury what he
should charge. Kieih vs, Catehings, 778.
CITY COURTS. See Constitutional Law, 6^
CLAIM.
1. Validity of judgment between creditor and debtor, finding of
property subject, followed by affirmance in supreme court,
concludes claimant as to. Henderson vs» Hill, 293.
2. Decree against realty held in trust, trustee being party to bill,
beneficiaries cannot interpose claim. Zimmerman et al. vs.
Tucker, 432.
3. Equitable pleadings cannot be based on claim where claimant
was not properly in court. Ibid.
4. Issue is whether or not property is subject; immaterial whether
* there is other property subject or not. Alston vs. Wilson, 482.
5. Levy upon mill, etc., under execution based on foreclosure of
saw-mill lien and claim filed, case returned to county of resi-
dence of defendant in ft. fa. Akin vs. Peek dk AUen, 648.
6. Possession of property at date of levy, claimant contends that
he had, plaintifT Xnfi.fa. entitled to open and conclude. Bones
vs. Printup Bros, dt Co., 758.
7. Dismissal of levy, is motion for new trial proper mode of cor-
rectmg error in? Quare. Buice vs. Loxeman G, <fe S. M. Co., 769.
COLLATERAL SECURITY. See Contracts, 4.
COMITY. See Administrators and Mtecvtors, 4. 5.
COMPTROLLER-GENERAL. See Tax, 1.
COMMON CARRIER.
1. Canal company not liable, in absence of special contract, for
exercise of any diligence in guarding or protecing timber
V6I-51
, wbich lies in basin for moro IUrd fifteea days, according to
UBAge or regulntion. after tntDsportailon is completed. Wait*
dt Bro. M, Sav. & Og. Can. Co., 88.
3. Delivery to common carrier of goods coDeigned to derendanU
is delivery to defendants. Slav Olait Co. m. Lon^lej/ <£ Bobiti-
(on. STS.
COMPROMISE AND SETTLEMENT. See PraetUt in Baperior
Caurt, 8.
CONFEDERATE STATES.
1. De factt> government, Confederate congreas was legislative de-
partment of, aod acta pubtiabed by authority of that govem-
ment, vhile in dominion of the territory of this slate, trill be
recognized by its courts. Ci>mmi$noneri of Bartoa Co. w.
Neadi, Q99.
2. Oovernmeat being overthrown, and being no records by which
to establish such acta, parol testimony of witness that he was
member of Confederate congress, that acts were genuine, etc.,
sufficient to admit printed copy. Ibid.
8. Bonds Issued by county m 1862 for support of indigent fami-
lies of Confederate soldiers, were not in aid of rebellion, f M.
i. Citizen of another slate, resident in Qeorgia, moved norlb in
1803, leaving money, consisting of bills of local banks, with
agent for inveBtmont, and latter purchased county bonds, trans-
action not illegal withiu meaning of act of congress of 1841,
which prohibited commercial intercourse, etc. Ibid.
CONaOLIDATION OF ACTI0S9. See PraeUee iit Superior Churt, i
CONSPIRACY. See Trttpa*; 1.
CONSTABLK. See Sheriff, 1.
CONSTITUTIONAL LAW.
1. Municipality baa no authority, under constitution of 1877, tc
incur debt of $3,000.00 in order to exchange old fire-engine for
steam, until there has been an election held according to a law
prescribing ilie manner thereof. Hvdtonelal.ti. Manor, tie.,
<^ Marietla,Z«i.
S. Jury beiiii; j\iila;cs of Inw aud fact in criminal cases, coastilu-
tion of iH77 dots not alter law in regard to. Hill w, &lnU.
464.
8. County lax, prior to constitution of 1877, when lOO per ceul, of
143} piT cent, on stale tax was recommended by grand Jury,
and items amounting to 55 per cent, or more needed no recon-
INDEX. 813
mendation, whole would stand. Spann et aL vf. Board of
Gommimoners, 498.
4. Under latter instrument, county cannot levy tax for *' incidental
expenses," nor to buy safe, without assent of two-thirds of
voters. An assessment for " expenses of jail " is equivalent
to a levy *' to maintain and support prisoners," and is consti-
tutional. Ibid.
5. Jury system under constitutions of 1869 and 1877 respectively.
HamUn et tU. V8, Fletcher, ex^ 649.
•6. Provision in constitution of 1877 that in county where there is
city court, the judge thereof and of superior court " may pre-
side in the courts of each other in cases where the judge of
either is disqualified to preside," does not give right to judge
of city court to exercise chancery powers in vacation, no order
being taken in term time for the determination of the case in
vacation. Northwestern M. X. //w. Co, vs, WUeoxon, adm*r,
556.
7. Ministerial officer of state attempting to collect money under
forms of law, but without any valid constitutional law to
authorize the process he uses and calls an execution for taxes,
it is duty of courts to arrest the proceeding. Wright^ eomp.gen't,
et cU, t9. Southweatern Railroad^ 783.
•CONTINUANCE.
1. Murder, on trial one month and half after rencounter in which
prisoner was painfully wounded, whether excited state of
public mind, and defendant's physical condition, etc.. would
admit of fair trial, in discretion of court. Cox vs. State, 374.
•CONTRACTS.
1. Fertilizer bought "entirely upon its analytical standard, they
(the sellers) in no case to be held responsible for the prac-
tical results," evidence of chemist that it did not come up to
standard admissible, though analysis was imperfect, and
condition of sample as to preservation unknown to chemist,
etc. DeLoaeh V8. Hardee's Son & Co., 94.
2. Practical result, whilst inadmissible to hold plaintiffs responsi-
ble, standing alone, yet may be admitted to throw light upon
the issue whether or not the fertilizer delivered came up to
analytical standard. lUd,
3. New York, contract made and to be performed in, enforced by
courts of this state according to legal status it would occupy
there; but law of that state must be put in evidence before it
can be applied here. Champion m. Wilson d Co,, 184.
4. Collateral, certificates of stock deposited as, kaving indorse*
814 INDEX.
meat impartiog power to transfer, and tranfer is acCuallj
made aome time thereafter, and new certificates issued to the
parties, same not wrongful if it was such as the power au-
thorized. Ibid,
5. Ambiguous, if terms of power are, or if indorsement be blank,
true meaning ascertained bj assistance of all surrounding cir-
cumstances. Ibid,
6. Custom, to be binding as part of contract, must be so generally
practiced by those engaged in the business that exceptions
only serve to establish habit of trade. Ibid.
7. Promise to pay for coU on first of November, title to remain in
vendor until paid for, but vendees to pay if colt died, prima
fade promise to pay at that date even though colt die before
payment, and while title was in vendor. Bojfer e«. Atubum
tt al., 271.
8. Warranty, administrator cannot bind estate by. Cotberi ft*
Moore, admW, 502.
9. Son obtained guano on credit by fraudulent representation
that he was purchasing for himself and father jointly, and on
discovery of fraud agent of vendor demanded return of guano,
and was referred to father, who agreed to take it if speci6ed
reduction was made, which was assented to; he thereby be-
came liable as original contractor. EUis f», U. S, FerL Jt
them. Co., 671.
10. Representations of son when making purchase constitute part
of contract and may be proven. Ibid.
11. One must suffer by reason of fraudulent conduct of third, he
who places it in power of latter to perpetrate fraud must
, lose. Ibid.
12. Guano note which contains clause * 'guano sold and guaranteed
under analysis of Dr. Means, inspector, which analysis has
been submitted tome," does not exclude defense that fertilizer
is not reasonably suited to purposes for which sold. TFtZcoz,
€Hbb» d: Co. vs. Oteens, 601.
13. Construed against party who drew it, contract of doubtful
meaning will be. Ibid.
14. Bonds issued by county in 1862 for support of indigent fami-
lies of Confederate soldiers, not in aid of rebellion. (hrnvM-
nonern of Bartow Co. ts. Netcdl, 699.
15. Prosecution for felonies, contract to pay one for services in
procuring consent of prosecutor to dismissal, contrary to pub-
lic policy. Ehodes et (U,, ex*r8, m. Ifeal, 704.
16. Employment for stated term and party fails to comply with
contract, employer must discharge him within reasonable
time, or give him notice of failure to comply; yet where em-
INDEX. 815
ployer was not present, and it is probable knowledge of the
non-compliance was not promptly had. proper for court to
present that view, and its effect upon respective rights and
liabilities of parties in connection with rule as above stated.
WiUiams, adm'r, vs, Jeter, 737.
CORPORATIONS.
1. Foreign riailroad allowed by special act to contract with munic-
ipal corporation on Georgia line and to extend its road into
that city, and made liable to suit in proper courts of this state,
not change its character as forei/^n corporation so as to prevent
an attachment against it. South Car. R. R. vs. Peoples* 8av.
Ins., 18.
2. President of corporation cannot maintain possessory warrant
in his ow^n name to recover possession of corporate property
of which he has had no prior possession either hs an officer or
an individual. McEvoyts. Hvssey, pres't, etc., 814.
3. Affidavit to obtain possessory warrant must negative consent
of corporation (not consent of officer) to disappearance of
property, and allege that corporation does in good faith claim,
etc. 1 bid.
4. Freedman's Sav. & Trust Co. had authority in 1873, under
amended charter, to loan money secured by title to real estate.
Keith vs. Catchings, 773.
COSTS. See Administrators and Executors, 24; Illegality, 2; Equity, 18.
•COUNTY COURT.
1. Jurisdiction of county court of Houston county at its monthly
sessions is for all claims up to $100.00, and declaration for
that sum maintained though damages beyond that amount
be proven and found. QUes, ord , for use, vs. Spinks et al., 205.
2. Appeal from county court of Rockdale must be entered within
four days from decision irrespective of time of adjournment.
Blaek vs. Peters, 628.
3. Certiorari to decision of county judge in criminal ca.«e sought,
it must appear that petition, duly sanctioned, was filed in
clerk's office within ten days from trial. Morrison vs. State, 751.
COUNTY MATTERS.
1. Time covered by contractor's bond for keeping bridge in repair
expired, and county undertakes duty, it will be liable for
damages resulting from failure. Davis et al,, com'rs, vs. Home,
69.
2, Suits for and against county, under constitution of 1877, must
be in name thereof. Bennett et uz. vt» Walker et al., earners,
826.
816 INDEX.
3. Deed from ordinary, made officially, acceptance of is recognition
by purchaser of title in county at date thereof, and whilst lit
possession under such deed he holds under county. Ibid.
4. Deed of ordinary does not pass title out of county, he having
no power to make it, but only to authorize it to be made by
some one or more persons as a commission ; if free from fraud,
it may serve as color of title. Ibid.
5. Constitution of 1877, prior to, where 100 per cent, of county
tax of 142 J per cent, on state tax was recommended by grand
jury, and items amounting to 55 per cent, or more, needed no
recommendation, whole would stand. Spann ei aL vs. Board
of C<m'n, 498.
6. Under latter instrument, county cannot levy tax for " incidental
expenses,*' nor to buy safe, without assent of two-thirds of
voters. An assessment for "expenses of jail" is equivalent
to a levy "to maintain and support prisoners," and is consti-
tutional. Ibid.
7. Ordinary has jurisdiction to cite county treasurer to appear for
settlement of accounts under §837, par. 1, and §568 of Uode,
and upon failure to pay to issue execution. Smith, county
tj-easurer, vs. Outlaw, sh*ff^ 677.
COVENANT. See Deeds, 8, 10.
CRIMINAL LAW.
1. Resgestm, homicide committed in dark in midst of crowd, and
question whether wound in back from which death may have
resulted was made by prisoner, declaration by bystander im»
mediately after rencounter, that he cut accused in back with
knife, when he had no such cut but deceased had, adogiissible
as part of. Flanegan c«. State, 52.
2. Charge of court confining such evidence to impeachment of by-
stander error. Ibid,
3. Description of money, though unnecessary, must be proved as
charged. Watson vs. State, 61.
4. Police officer may make arrest without warrant for crime com-
mitted in presence, or if offender is endeavoring to escape,
etc., but there must be an offense committed by party accused.
O'Connor vs. State, 126.
5. Arrest without warrant of person guilty of no offense, and in
preventing escape officer killed prisoner, facts at least warrant
verdict of involuntary manslaughter in commission of unlaw-
ful act. Ibid.
G. Statement of prisoner and evidence conflict, former must yield
♦^ latter. Ibid,
IKDEX. 817
7. Larceny of horse, though aftei commit lingjo adjoining state,
thief brings stolen property into this state, and here carries it
from place to place, he does not commit offense in this state.
Lee vs. State, 208.
8. Juror to retire in charge of bailiff, with leave of court, to attend
call of nature, not illegal separation in trial of capital felony.
Neal et ah t9. State, 272,
9. Involuntary manslaughter, that case^might be not insisted on in
argument, or contended for before court, and such grade is
not apparent from evidence, court need not charge further than
to read sections of Code which bear upon it, unless specially
requested to do so. Branaell vs. State, 318.
10. Statement, no request to charge in respect to made, and no in-
jury done defendant by omission, not require new trial. Ibid.
11. Indictment not demurrable for any matters dehors pleadings
and record. Jj,ckHon xs, tState, 344.
12. Examine fresh witness on general case, too late to after state
has rebutted prisoner's evidence and closed, unless some good
excuse is rendered. Ibid,
13. Alibi, charge as to in conformity to 59 Ga., 142. Ibid.
14. Accomplice, charge in respect to evidence of in conformity to
Ros. Cr. Ev., 456 etseq., and to 52 Oa., 106, 398.
15. Threats, as to, see 49 Oa., 12, and 58 Ibid, 224.
16. Punishment, not error against prisoner to instruct jury in
terms of act of December, 1878, on relative powers of court
and jury over. Ibid.
17. Riot, evidence sufficient to sustain conviction. Bdden et al. vs^
State, 361.
18. ,/?'» gestae, where there is mutual agreement to arm and fight
and parties separate and arm with pistols, and they meet within
an hour and fight with pistols, all pertinent acts and declara-
tions of either in the interval belong thereto. Doctrine of
res gestm fully discussed. Cox vs. State, 374.
19. Homicide sequel to pre-arranged scheme on part of both com-
batants, court may, as starting pouit for further instructions,
charge as to legal consequence of such a combat resulting in
death, though evidence shows that after arming one of parties
ceased to intend, and the other ceased to expect a meeting at
the appointed place, and though no meeting occurred there.
Ibid
20. Statement of prisoner and evidence, comparative weight of.
Jbid, Hill vs. State, 453.
21. Assault withintcLt to rape, on conviction, sentence to twenty
years not excessive. Dykes vs. State, 437.
23 Sentence passed not deprive defendant of rigbt to more tor
new irLal. Smith w. SlaU. 488.
S3. Sentence ought not lo be modified by aoy arranjemeDt lookiog
to flbandonmcnl of rigbt to move for new trial, nnd if so modi-
fied, defendaac not estopped. Ibid.
24. Appea! for leniency, etc., not forfeit right to move for new
trinl. Ibid.
35. City court of Atlanta, in passing sentence for assault and bat-
tery in the city, should not consider any serious difference de-
fendant was tlieo engaged in with many citizens of Stone
MouDlain. Ibid.
25. Sentence suspended and several continunncea thereof to allow
time for motion for new trial. On day to which cause was last
continued, recognizance was forfeited. Defendant subse-
quently appeared, was sentenced, and moved to set aside for-
feiture because motion for new trial was pending, and i^efend-
ant bad been several times ready to respond to judgment on
said motion, but was sick in bed on day bond was forfeited :
HM, that appearance and sentence would be complete reply
to «ei. fa. on bond, and time for making question as to liability
for costs is when some motion is made to cbarge him there-
with. Johnnm va Slate, 443.
37. Taking and carrying away with intent to steal; that bog was
beard to squeal, that defendant ran off from him, that hog
was dead. Laving been knocked in the head, sufficient to show.
CroMJi*. Slate, 443.
38. Aliega a and probata sufficiently agree in this case. Ibid.
29 Orand juror's name on minutes as property drawn, sufflcient
reply to exception to indictment that his name was not in
jury-boj£. Ibid.
80. Alteration of order for (1.00 to one for {S.OO, jury justified in
finding under facts of case, though witness, using microscope,
testified Ihat be could discern no trace of alteration. Mitchell
M. Stale. 448.
31. Alteration made by prisoner, jury authorized to infer. Ibid.
33. Assault and battery by nurse on child, circumstaulial evidence
aufflcient to sustain conviction. Moore e*. Slate. 449,
83. Request lo charge that absence of motive is circumslanre Ihal
jury may consider as favorable lo defendant in iltlcrmioing
her guilt or innocence, properly refused, especially where in-
structions as to the presumption nf innocence and wcigbl of
circumstaulial evidence necessnry to convict, were pivea.
Ibid.
81. Descriptive terms in indictment e
yet must be proved as charged.
INDEX. 819
85. Shooting at another, notwithstanding that defendant pointed
pistol and fired, it must be shown that it was loaded with ball
or shot; no such prebumption follows. Joths v% State, 450.
36. Idea of prevention or defense against impending or progressing
wrong must enter into all cases of justifiable homicide. To
deliberately kill in revenge for a past injury, however heinous,
after reason has had time to resume its sway, cannot be justi*
fiable. HOI vs. State, 454.
37. Homicide of adulterer with wife of defendant, murder and man-
slaughter distinguished. Ibid.
88. Constitution of 1877 does not alter law in regard to jury being
judges of law and fact in criminal cases. Ibid.
39. Deliberate homicide in revenge for adultery with wife, defend-
ant not protected by fact that he labored under delusion as to
her character for virtue. If now a lunatic, can be removed to
asylum on proceedings had therefor. Ibid.
40. Acquittal for stealing cow; on second indictment changing
description only, but relating to same animal, plea of autre
fois acquit should be sustained. Buhler vs. State, 504.
41. Arson can seldom be established by positive testimony : it is
necessarily dependent upon confessions and corroborating cir-
cumstances. The force to be given to corroboration must be
left to upright jury. Smith vs. State, 605.
42. Legal character of offense not affected by out-house being in
city, town or village. It affects punishment only. Hence
court properly refused to exclude testimony because indict-
ment failed to allege that out-house was not in city, town or
village. Ibid.
48. Principal in second degree, conviction of contrary to law where
there is no evidence of guilt of principal in first. Jones vs.
Stau, 697.
CUSTOM. See CoiitraeU 6; Evidence, 4.
DAMAGES. See Railroads, 5, 9; Vendor and Purchaser, 4.
DEEDS.
1. Actual possession of part of tract will constructively extend to
limits described in recorded deed. Weitman, advCr , et at. vs.
Thiot ei aL,\\.
2. Admissible without proof of execution or of proper record, deeds
thirty years old, apparently genuine, and coming from proper
custody, are. Ibid.
8. Usury, deed tainted with void as title, and if good as equitable
mortgage, it is only so far as to secure principal. Denham vs.
Kirkpatrick, 71.
820 IKDEX.
4. Usury law in force, deed executed whilst there was Done, could
not be tainted. 7\tmmon» m. HamUton, 137.
5. Possession of part of one lot embraced in same deed with others,
not extended by construction unless deed be on record, so as
to work a title by prescription. TuU vk Roberts, 156.
6 Acceptance of deed from ordinary made by him officially, is
recognition of title in county at date thereof, and whilst pur-
chaser is in possession thereonder he holds under county.
Bennett et vx. vs. Walker et al . eanCrs, 326.
7. Ordinary, deed of, does not pass title out of county, be haying
no legal power to make it, but only to authorize it to be made
by some one or more other persons as a commission ; if free
from fraud may serve as <:olor of title. Ihid.
8. Grantor, in consideration of |25.00 and of building of railroad,
conveyed to company right of way, adding in deed provision
that depot was to be located on strip for benefit of grantor,
grantee, by accepting deed, entered into covenant to comply
with terms, and this covenant ran with land and became
obligatory upon second company which ^lecame purchaser.
Ga. So, Railroad vs. Reeves, 492.
9. Bill to set aside deed made under tax sale, amount of taxes
admitted to be due must be tendered. Picquet vs. City CouneU
of Augunia et al., 516.
10 General warranty of title includes in itself covenants of right
to sell, of quiet enjoyment, and of freedom from incum-
brances. Burk vs Burk, 632.
1 1. Instruments reciting that to secure debt certain property is con-
veyed at stipulated price, and concluding with habendum,
tenendum and warranty clauses, are not mere mortgages, but
under act of 1871 carry title, with right to have reconveyance
on payment of debt. Carter et at, vs. Gunn, 651.
12. Recital that land conveyed had been set apart as homestead,
no ground for rejecting deed as evidence of title. Sale, though
piivate, may have been for some one of purposes enumerated
in constitution of 1868 as authorizing judicial sale. Willis V9.
Mtadors, ezr, 721.
13 Secure debt, title conve3"ed to, subsequent purchaser under
execution against grantor simply acquired right to redeem.
Kie'h t%. Catchings, 773.
14. Transfer by grantor of bond to reconvey to another, could not
affect title of party holding under deed, until terms of bond
were complied with. Ibid.
DELIVERY. See S^les, 1.
DIVORCE. See Husband and Wife, 5 -7.
INDEX. 821
DOWER.
1. Florida law makes widow entitled to dower in personalty a&
well as really. MiteheU w. Word, guardian, et al, 208.
2. Widow in possession of dwelling-bouse needs no injunction to
restrain creditor from selling under execution, or to restrain
sheriff, before sale, from turning ber out. Notice at sale of
rigbts will fully protect her. Jackson <fe Co. et al. vs. Rainey,
311 ; Spenee et al, vs. Cox, 543.
8. Possession entered under parol contract of purchase, but no
part of purchase money paid to holder of legal title, one is not
seized as against latter and those claiming under him, and on
death, even after having tendered purchase money, widow is
not dowable. LatJuim vs. McLain, 320.
4. Assignment of dower not a nullity because only four instead
of five commissioners were appointed, if it be otherwise legal;
may be bad on objection made at prober time, but after re-
turn has been made judgment of court, objection too late.
WiUiamwn vs. McLeod^ 761. See Aa/i, ex*r, vs. Gent, Cot. P,
Co., 070.
5. Notice by wife to administrator of husband's estate of applica-
tion for dower, is notice to ci editors of decedent. Ibid.
C. Assignment recorded in book of deeds, but plat having been
omitted by accident, it was subsequently inserted by order of
court, charge which assumed this to be illegal record error.
It was constructive notice to the world, and actual notice to
creditors of decedent who were represented by administrator.
Ibid.
EJECTMENT.
1. Grantee of executor who shows order from court of ordinary
to sell real estate of testator need not introduce will in evi*
dence. Cogginsvs. Oriswold, 323.
2. County, suits by or against under constitution of 1877, must be
in the name thereof. If commissioners sue for land oflflcially
in their own names, no recovery can be had if they have had
no actual possession, and if the title is not in them but in the
county. Bennett et nx. ts. Walker et al. com'rs, 326.
3. Corporate magistracy of county and of city constituted of same
persons or board, and sue in former character upon prescrip-
tive title in county, cannot recover upon proof of title in city.
Ibid.
4. Purchaser from intestate who went into actual possession, and
paid purchase money to administrator by consent of heir, will
acquire perfect equity against such heir, and may recover
thereon in ejectment. DuBose, adnCr, vs. BaU, 350.
6. Tille shown out of pltUatiff by proof, complaint for liod c»n-
QOt be maintained, Witiii vt. Meadari, ex'r, 721.
6. Abstract of title wbicb takes place of demiseB, may be amended
as readily and as oflen ai under common law form a new
demise mlgbt have been laid; but new party catinot be added,
or perfect equity set up in plaintiff's own grantee. Jbid.
1. Sale under tax;!. /a., person seeking to set aside by bill must
sLow tbal be has some title to or Inleres in the properly.
Piqunlv. Oiiy (huneHof Augxutaelal.m.
2. Creditor of insol vent estate under injunction not to sue execu-
tor, lias good excuse for not obtaining judgment on debt be-
fore proceeding in equity lo set aside voluntary conveyance,
if during pendency of bill, decree is obtained fixing amount,
same may lie brought in by amendmecL Cleveland si al. tt.
Chamhliu, guardian, 353.
8. Marsbal assets, bill to by executor, and one defendant flies an-
swer in nature of crossbill against certain co-defendants,
voluntary donees of property under testator, another co-
defendant, not made parly thereto, may file independent bill
to accomplish same object, and will not be bound by result of
litigation on cross-bill. Ibid.
4. Agreement to convey to sister on payment of purchase money
advanced by brother taking title as security, bill to enfcrce is
not proceeding to change deed to brother from fee simple lo
conditional title. Evidence of such contract admissible with-
out infringing rule that it is not-competent lo eograft express
trust upon written deed by parol proof. Seotl vs. Taylor. 00&.
6. Deed made under tax sale, bill to set aside, amount of taxes
admitted to be due must be tendered, lasoQlclent to allow
city to retain sufflcieat amount out of proceeds of sale,
Pietjuel VI. Oily Oouncil of Augutla et ai., 516.
a. Judgment sustaining demurrer lo bill affirmed, complainant
cannot amend unless he makes case forequltable relief beyond
reasonable doubt ; nor even then, if there bas been apparently
needless delar, or if complainant has had his day in court
thereon. /Wd.
7. Poverty ninii)!iluge, distiessjng as they are, cannot createequity.
Wrfghi ci^il. v». James. 533-
8. Ohancery ]iawers, Judge of city court no authority to exerciH
invapQliiin uniier provision of constituti^u of IS77 author-
IniDg lilni un<1 judge of superior court to preside for each
otherin ccfrlain cases. I/oilhieetUm M. L. Int. Vo. r«, Wib«r<m.
adrn'r. SSQ.
INDEX. 823
0. Will provided for payment of debts, of specific legacies, and
that balance should go to son for life, with remainder to chil-
dren, and if none, then to other relatives. Also, that son
should not control property until he became of age, and that
executor should see to religious and secular education. Son
became of age in 1854, and died in 1860, leaving a child born
in 1855. On ex parte proceeding in equity, filed in 1843, less
than thirty days before term, court of county where executor
lived rendered decree, founded on verdict of jury, allowing
him to sell certain realty in order to pay a debt and to make dis-
tribution required by will : Hdd, that though proceeding was
irregular, court was not without jurisdiction, and decree not
being void; it cannot be collaterally attached. The executory
devisee was not then born, and executor represented her in
terest as far as it could have a representative. Dean, exr, vs.
Cent. Cot. P. Co., 670. See WiUiamaon vs. MeLeod, 761.
10. Advancements, priority of claims, etc., to be determined be-
fore administrator could safely dispose of estate, bill for di-
rection apd distribution not without equity. Miles & Co et al.
vs, JPsabodj/, admW, 729.
11. Exempted property, courts of equity have exclusive jurisdic-
tion of suits to recover, where voluntarily sold prior to act of
1876. ZeUers vs. Beekman, 747.
12. Rent of lands pending litigation, under order of court, passes
with corpus in adjudicated disposition thereof. Bofs et al.,
admWs, m. Stokes, admW, 758.
18. Costs seem to have been equitably taxed, but whether so or
not, this is matter for chancellor. Ibid,
ESTATES.
1. Devise to nephew and niece for life, with right and privilege to
them to sell if they deemed proper, and at their death prop-
erty or proceeds to be divided between named children of
such devisees, they being husband and wife, under law of
England they took an entirety and not a severalty. Parroit et
al. vs. Edmondson^ 382.
2. Georgia statute abolishing joint tenancy, etc., if it be not appli-
cable to the above law of the mother country, then Interest of
wife is clear, for latter law is still of force, and power of sale
being coupled with an interest, wife, as survivor, could sell.
Ibid.
3. If English law was repealed by statute above referred to, still
the wife's equity in the property would give her such interest
therein to be coupled with the power as to authorize her, as
survivor, to sell. Ibid,
824 INDEX.
ESTOPPEL.
1. Party consenting to settlement estopped from settiog up title
against. DuBote, adm'r, i». Ball, 850.
2. Sentence ought not to be modified by any arrangement looking
to abandonment of right to move for new trial, and if so
modified, defendant not estopped. Smiih vs. Stale, AS9.
3. Husband and wife enter possession of land in 1858, and former.
in 1870, gave note to plaintiff's intestate and took bond for
title from him, and held thereunder until death, husband
during Mfe and widow after death, in absence of any written
title, estopped from setting up adverse title by possessioo.
even though for twenty years. JfcMath vs. Teel, adfn'r, 595.
4. Wagon furnished by child of decedent to administratrix, who
was his mother, for use of estate, and it was so used, heir who
assented to arrangement estopped from objecting to payment
of debt so contracted, -and creditors seeking to subject his dis-
tributive share would only be subrogated to his rights. M&e$
dh Co. et al. vs. Pcabody, adnCr, 729.
EVIDENCE.
1. Deeds thirty years old, apparently genuine, and coming from
proper custody, admissible without proof of execution or of
proper record. W&itman, ctdrnr, el al. vs. Thiol et oL, 11.
2. Returns, several made to ordinary at same time and sworn to
in one affidavit, and one introduced by plantiffs, defendant
may introduce the rest of the series, and the whole may be
considered by the jury as one entire document. Munroe el al.
vs. Phillips, adm*x, 32.
5. Res ffestcBf homicide committed in dark in midst of crowd, and
question whether wound in back from which death may hare
resulted was made by prisoner, declaration by bystander im-
mediately after rencounter that he cut accused in back with
knife, when he had no such cut but deceased had, admissible
as part of. Flanegan vs. State, 52.
4. Question as to fact of agency for proprietor of hotel of one who
purchased as caterer, no error in excluding evidence as to
custom of proprietors of hotels in the city in buying through
caterers. Thompson vs. Douglass, 57.
5. Parol evidence inadmissible to show transcript of record from
another court to be incomplete. EllioU vs. Deaeon, 63.
6. Certificate which states that " the following and annexed writuig
is a true, correct and complete copy of the original on file and
remaining of record in my office," is not sufficient. Ibid.
7. Fertilizer bought " entirely upon its analytical standard, they
INDEX. 825
(the sellers) in no case to be held responsible for the practical
results," evidence of chemist that it did not come up to the
standard admissible, though analysis was imperfect, and con-
dition of sample as to preservation unknown to chemist etc.
DeLoach vs. Hardee's Son dk Co,y 94.
8. Practical result, whilst inadmissible to hold plaintiffs responsi-
ble, standing alone, yet may be admitted to throw light upon
the issue whether or not the fertilizer delivered came up to
analytical standard. lUd,
9. Plaintiff interrogated by defendant touching admissions made
at certain time, and did not set up that what he said was with
a view to compromise, but gave his version of the conversa-
tion, defendant should be allowed to give his version by him-
self or the witnesses present. SmXm vs. ShackUford, 170
10 Power, terms of ambiguous, or indorsement blank, meaning
ascertained by assistance of surrounding circumstances. Cham-
pion vs. Wilson dt Co.^ 184.
11. Books of account are secondary evidence, and only admitted
when. Bracken <ft ElUuorth vs. Dillon dh S?ns, 243.
12. Books will not establish items for cash, nor accounts of third
persons transferred to defendants; nor are they admissible at
all to show the authority to make such transfer, fbid.
18. Title by virtue of duration of possession sole issue, rejection of
testimony that improvements were of but little value, not such
error as will require new trial. Sfiiels vs. Roberts, 370.
14. Privity of estate shown between defendant and long line of
grantors to lot 17 and buildings thereon obtruding some feet
over lot 18, continuity of pos.(«e8sion for more than twenty
years between him and his grantors, may be proven by parol.
Ibid.
15. Indistinctness of hearing of witness not exclude testimony; it
affects only force thereof. Cox vs. State, 874.
16. Stenographic notes of testimony taken down at coroner*s in-
quest, and afterwards transcribed, may, upon proof that writ-
ing is correct minute of evidence, be read to show contradic-
tions. Ibid,
17. Objection based upon one ground in court below, not enter-
tained upon another in this court. Ibid,
18. Conversation, part admitted, rest may be brought out by oppo-
site party on cross-examination. Ibid,
19. Doubtful or objectionable matter already before jury, and no
motion to withdraw, repetition by another witness, though
objected to, treated as not sufficiently mateiial to require
new trial. Ibid,
826 INDEX.
20. Resgesta. mutu il agreement to arm aod fight, and parties sepa-
rate and arm with pistols, and they meet within an hour aud
fight with pistols, all pertinent acts and declarations of either
in the interval belong thereto. Doctrine of resgesla fully dis-
cussed. Ibid.
21. Statement of prisoner and evidence, comparative weight. IMd.
HiU VH. State, 458.
22. Notice to produce is appropriate means of obtaining original
paper; if no such notice is given, secondary evidence of let-
ter excluded even though other party resides beyond limits of
state, and has answered interrogatories propounded by his
own counsel requesting the production of all letters touching
cause of action, sending forward others than the one desired
by his opponent, testifying that they were all. McAdam fw.
Weikel dh Smith Spice Co., 441.
23. Contractor who had engaged for year to work streets according^
to plans, etc., discharged before year expired, on suit against
city for damages, evidence admissible to show that he worked
streets in proper manner. Mayor, etc,, of Amerieus vs. Alex*
ander, 447.
24. Agreement to convey to sister on payment of purchase money
which had been advanced by brother taking title as security,
on trial of bill to enforce, competent to prove contract and
repayment of money without infringing rule that express trust
cannot be engrafted upon written deed by parol proof. 8eoU
w. Taylor, 506.
25. Partnership or no partnership the issue, sayings of one who
admitted himself to be such, inadmissible to prove that another
was also. Ford v». Kennedy, 537.
26. Admission of one who denies being a partner admissible to
prove him such. I hid.
27. Admission of evidence which, if error at all, was so slight an
to be harmless, not ground for new trial. Ibid,
28. Weight to be given to evidence should be determined by jury,
and should not be controlled by charge. Ibid.
29. Sayings of one party m absence of other, tending to establish
his version of contract, and which form no part of res ffes{4B,
inadmissible in his own behalf. Williams vs, English, 546.
30. Award Itself is best evidence of its meaning. MulUgan vt.
Perry, adnCr, 567.
81. Arbitrator, testimony of as to what was intended, and his con-
struction thereof, inadmissible. Ihid,
32. Father and son^Uvad together, latter cultivating portion of
former's Mng to entire farm, and son went with
INDEX. 827
father s WHgona to purchase guuDO, admissible to show that
in niuking purchase he staled that guano was for use of both
of them. Effect which it would have on father would depend
on proof of agency. Ellis vs. U. S. Fert. and Cfum Co , 571.
[V6. Bond for title produced under notice to defendant, and on
death his widow was made party in his stead, and stood
as heir claiming benefit under paper, it was properly admitted
without proof of execution, but subject to be excluded if it
subsequently appeared that she liad legal claim to land inde-
pendently of bond. JfcMath vn. Ttel, adr/i*r, 595.
34. Letter inadmissible to bind third person in absence of proof of
authority to write, etc. Ibid,
35. Recortls and judicial proceedings of courts of other state,
since May, 1790, admitted upon proper attestation and certifi-
cate. MeAUinter ch. Singer Man. Co., 622.
36. Parol evidence inadmissible to. show that certain decree was
rendered when collaterally in question in court of rendition;
much more so in another tribunal. Clark rtt. Camdy^ adm'r,
662.
37. Discharged employe, suit by, statements made after time when
notice of discbarge was alleged to have been given, and before
it was to take effect, admissible to show preference by him
of other service. Howard vs Chatnberlin, Boynion A Co. , 684.
38. Amount mad6 by discharged employe in other service admissi-
ble, and where he sold fruit trees on which he it as to receive
commission on collection therefor, books received from plain-
tiff containing notes taken, and also books compiled from
these by last employer and plaintiff, containing schedule of
makers and amounts, with marks of payment where made,
admissible. / bid.
89. Inadmissible to bhow that plaintiff left more lucrative position
to obtain year's employment with defendants. Ibid.
40. Confederate government being overthrown, and being no rec-
ords by which to establish acts of congress, parol testimony
of witness that he was a member of that body, that acts were
genuine, etc., suiiicientto admit printed copy. OommiMionetB
of Bartow Co. v». NetoeU, 699.
41. Absolute bond as treasurer of state delivered, cannot be showa
by parol that it was accepted by governor as temporary bond,
to be void when a new one, with new securities, was executed.
JoMs et al, Vft. Smithy goo., 711.
42. Reopen testimony, court may in its discretion. Ibid.
48. Fraud iu making or procurement of deeds constituting chain of
title to defendant, inadmissible unless notice thereof was
shown to latter. Kiefh iv. Catchings, 773.
V 64-W
44. Quil-clnini deed from original graDtor to purcbasers from his
vendee, executed long itrter be had parted wiib lille, sod
obligation back to bim goiog to sbow that be bad interest in
land, inadmissible as based upon no consideration and irrele-
vant. Ibid.
43. Legal lltte and actual ownersbip in sucLi grantor, after be bad
conveyed by deed, cannot be shown by parol. I hid.
-lit. Legal effect ot deed and bond to recoDvey waa for court, and
parol proof to sbon tbai tbey constituted mortgage was prop-
erly excluded, the instrumenla being onambiguouB, and no
charge of fraud, accident or mistake being made. Jfnd.
47. Grantor having parted with title, no subsequent act of bis wiib
otbcT parties, whether fraudulent or not, tould affeci sucb
lille, and therefore, all evidence to show sucb fraud was
properly excluded. Tbid
BXECUTIONS.
1. Comptroller-general not authorized by law to transfer ta.x fi, fa*.
Issued by bim against wild lands on payment of amount due
thereon. JoKtuont*. CkrUtie.nh'ff. elal., 117.
2. Advuuce by third persot. to obtain traDsfer of execution, with
intention to keep it open until reimbursed, transaction is not
a payment but a purchase, and though person mahing transfer
bad authority to collect, yet if he had no power to sell abso-
lutely as againat plaintiff, and lalti;r has never ratlHed, there
was no satisfaction and his lille remains unimpaired. So. H/ar
L. H. C" w. Dunall. 262
8. Attorney is empowered lo trnusfer execuliou vulijecl to ratidca-
tion by client, but whoever deaU with the attorney or his
transferee lakes risk of client's refusal to ratify. Ibul.
4. Levy appearing un !<ulHi;ient personalty to Batisfy, presumption
lbat.Jf./<i wa« »atislied. OUrer w. tHatr, -KHI.
34XBCUTIVK WARRANT. See Got^mor. 1.
.EX BMPLIFI CATION. See Btidence, 5, 6.
FERTILIZERS. Bee GoMrad: 1, 3. 1?, IM,
yOREIGN CORPORATION, mi <;..;.,.,-.iU;i.^. I
-FKAUI). See CojUraeU. 11; >■/■.■« .i>(/,./i, i.
VKAlinS, fjlTATUTE OF. .See JVnftjaMatjt.
INDEX. 829
FRAUDULENT CONVEYANCE.
1. Creditor of insolvent estate under injunction not to sue execu-
tor, has good excuse for not obtaining judgment on debt be-
fore proceeding in ecjuity to set aside voluntary conveyance;
if during pendency of bill, decree is obtained fixing amount,
same may be brought in by amendment. Clet^land et al, vs.
ChambUss, (guardian, 858.
2. Voluntary conveyance attacked solely on ground that douor
was insolvent, making no charge as to fraudulent intent, such
intent, apart from insolvency, is not in question, and instruc-
tions to jurywhich do not look to insolvency as neces^iary fact,
inappropriate. Ibid.
8. Reservation of two years' use and possession <>f land sold few
weeks before judgment by insolvent debtor, destroys validity
of conveyance as against such judgment. Afitrheil w. Stetson,
442.
FREE PERSONS OF COLOK See Qiiardian ami Ward, I, 2.
GARNISHMENT.
1. Traverse of answer denying indebtedness, with subsequent
amendment settini; out fac's whereby other indebtedness was
substantially shown, though on complicated state of facts,
should not be stricken on demurrer. Bat^ d- Co. dm. Fori*yth,
adtn*r, 282.
2. Variance between condition of bond and that required by stat-
ute, fatal in this case. Maddax r«. Heard et ai, 448.
8. Answer summons from justice court, garnishee must within
ten days. Duty is imposed by law, whether summons so
specifies or not. Uearn um. Adamson, 606.
4. Monthly wages of painter liable to garnishment for medical ser-
vices, depends upon date thereof. If while act of February
24th, 1875, was of force, liable, otherwise not. Afoore m. Mr.'
(hwn, 617.
'OIPT.
1. Intention to give, acceptance by donee, and delivery of article
given, or some act accepted by law in lieu thereof, necessary
to constitute valid gift. Delivery of non -negotiable instrti-
ment, without more, insufilcient. Hill,adm*r,'for use, vs. Shei*
biey, 529.
•GOVERNOR
1. Executive warrant on treasurer as voucher for redeemed bonds
of state, open to inquiry by courts, as to good faith of treas-
urer in pnicuhiii; such wnrranl, wlico it is alleged ihat il «"»
prociireil Uy frnu<l. Jonei el at. s*. Smith, gtm , 71 1.
GUARDIAN AND WAHD.
1. Free persous of color, gunrUiaD of nppuinleil prior lo abolilioo
of slavery, in 1868 no orilinnry biwl power lo ditraise and ip-
poim 3ucrpssi)r. "Monroe el at. v. Philtipn, adrn'r, 32.
2. Slavery, riiirio^ exislfnce of llierc was no law or public policy
against Ihe nwnersliip of personBl property Uy free persons of
color, and no law for any hIbvb to bave a gimrdian. The ap-
polntment of a nbile niRU as guardian for certain negroes,
nnd Ills Hcling in such capacity, involved lh«ir freedom aaa
(oregonu conclusion. Iflbey we:e de facta free in "slavery
tlmfn," and he made relurns to the orilinary in 18U8 rFachiog
hack to 18-'i4, in wbicb bo debited and credited ihem as bii
wnrd». it need not further appear whether Ihey were free it
Jure or not, in order to bold him lo acci>unl. Ibid.
3. Confederate bonds, burden of proving Ihal fund was converted
into in a legal way, on guardian or representnlive. Ibid.
4. Returns, one of several made at the same time anil sworn to in
the same aflidavit. having been introduced by Ihu plaintilk,
the defendant may introduce Ibe rest of the serieis. and ihe
whole may bo considered by Ihe jury as one entire do<:uinent.
/Wrf.
X Minor, bill served on and alep-falher answered neprorMa ami.
she would be bound by decree in abeence of fraud, dialer
et al. m. Wny>t», adm'r, 78,
6. Bond should always be required on appointment of giiardiiDr
but gram of letters without not void asagainsl Aorh j!(f« pur-
chaser under guardian without notice of wani of bond. /M.
7. Natural guardian ol daughter over fourteen, not obligatory
upon courts to supersede mother as, and appoint pertoa
selected by daughter. Beard w. Dean. $58.
8. Ordinary exercises limited jnrisd:ction in isGuing conimissico
for examination of person alleged to be Imbecile. Proceed'
tags must show on face such facta, especially touching notice,
aa will authorize judgment appointing guardian. Motion,
gwardinn, v$. Sim», 298.
9. Nearest adult relatives tbem^lvt ^ the pelitiouer.^ ten days' no-
tice should be given to three <>r ihe next nearest, nod If there
be none within the state except pelllioncrs. then notice should
Iw given lo the alleged imbecile himself, or tise n guardiaa *i
litem be designated to receive the notice. iAtrf,
10. Levy under/, fa. for balance of purchase money, and rtaim by
defendant as guardian of minor; plea '« ptTrcI tbnt \k bad
IM)KX. 831
used money of ward in paying part of purchase money for
land which had been bought by him individually, which fact
was known to plainliflf, who is insolvent, and that ward is
equitably entitled to have land, or that it be sold and ward
repaid, etc , praying that sale be enjoined until proper decree
can be rendered, demurrable, especially as there was no offer
to pay balance due. Shealy, guardian, vs. TooU, 519.
11. Action on note payable to plaintiff for use of childr. n against
father, plea setting up that defendant is natural guardian,
that plaintiff is insolvent, and if permitted to collect will ap-
propriate to his own use, and praying that upon defendant's
giving boud for the faithful management of the fund the
note should be decreed satisfied, should not be stricken on de-
murrer. 8/nUhva, Danielly, 551.
1'^. Husband of ward, who was also guardian, transferred execu-
tion in favor of ward to his creditors, and they collected
money thereon, remedies of wife were two-fold: first, those of
ward to call guardian to account ; second, of wife, to recover
from creditor who knowingly receives, in payment of debt,
money belonging to debtor's wife. Slory dt Bro va. Walker,
014.
HABEAS CORPUS.
1. Prisoner under mesne process for recovery of personal property,
legality of imprisonment not depend on truth of plaintifF's
affidavit, but upon due verification of material facts alleged
therein, together with the substance of the declaration, the
jurisdiction of the court, and the sheriff's return. Slate ex rd.
Lynch vs. Bridgea^ jailer, ei al., 140.
2. Wife of prisoner suing out habeas tk>rpus entitled to writ of
error upon final decision. Ibid
HOMESIEAD.
1 S;5>ecific exemption of Code, act of 1874 making lia5le for pur-
rha^e money, not affect exemption set apart before act was
passed. Hawki vs, Hawki, ex% 239.
.2. E>;emption treated as valid, unrecorded mortgage for purchase
money will take in preference to one duly recorded, to secure
debt not within any of exceptions of constitution. Walker vs.
Johnson et aL^ 863.
3. Really, homestead in under §2040 et seq. of Code, must be laid
off and plat returned and recorded in order to vest title in head
of family free from debts, unless quantity owned is not more
than that exempted. Pritchard vs. Ward, 446.
-4. Indigent sister and children, though mainly dependent on ap-
N^i> INDEX.
plicant for support, do not constitute family for whoee benefit
he can take homestead. Bendy m. QarMe A Capeland, 528w
5. Debtor, in August 1856, arrested under ca, 9a., filed bis sched-
ule, etc., and discharged under act for relief of honest
debtors, leaving him in possession of fifty acres of land, which
he held until death of wife and arrival at age of children, no
longer under the operation of exemption law of 1822 and
amendments. Wright et al. vs, Jamen, 583.
6. Subsequent marriage not re-establish exemption. Ibid.
7. Recital in deed that land conveyed had been set apart as home-
stead, not ground for rejection as evidence of title. Sale,
though private, may have been for some one of purposes
enumerated in constitution of 18G8a9authorUing judicial pale.
WilUs vs. Meadors, exW, 721.
8. Equity has exclusive jurisdiction of suits for recovery of ex-
empted property voluntarily sold prior to act of 1876. ZeUerit
vs. Beckman, 747.
9. Husband is head of family and is proper person to bring suit.
Tbid.
HUSBAND AND WIFE.
1. Habeas carpus, wife of prisoner suing out, entitled to writ of
error on fioal decision. Lynch vs. Bridges, jailer, et at., 146.
2. Possession entered in 1858 by husband and wife, and former, in
1870, gave note to plaintiff's intestate and took bond for title
from him. and held thereunder until death, husband during
life and widow after death, in absence of any written title,
estopped from setting up adverse title by possession, even
though for twenty years. McMath vs. Teel, adin*r, 595.
8. Guardian, who was also husband of ward, transferred execution
in favor of ward to his creditors, and they collected money
thereon, remedies of wife were two-fold: first, those of ward
to call guardian to account; second, of wife, to recover from
creditor who knowingly receives, in payment of debt, money
belonging to debtor's wife. Story <$• Bro. vs. Walker, 614.
4. Competent to show, if action belongs to latter class, that money
was received in payment of debt of wife, that husband waa
insolvent, and credit was refused him, etc. Ibid.
5. Decree authorizing divorce, none entered, though two verdict*
rendered, parties incompetent to contract marriage. Ctarkvs.
Cassidy, admW, 662.
6. Act of 1868, whether constitutional or not, can have no appli-
cation on account of absence of decree. Ibid.
7. Marriage valid without license or banns, when. Ibid.
INDEX. 83»
IMBECILE. See Guardian and Ward, 8. 0.
ILLEGALITY.
1. Service, jurisdiction in court of amount and person, as well a»
judgment against defendant, altliougti by default, or not
founded on sufficient evidence, conclusive as against illegality
based on causes anterior thereto. Oreene vs. OUphani db Han-
nah, 565.
2. Ordinary on settlement with county treasurer, taxed no costs
against him as far as record discloses, fact that judgment, and
execution based thereon, do not contain itemized bill, no
ground of illegality. Smith, eofinty tre<ufurer, ts. Outlaw, sheriff,
077.
INDICTMENT. See Cnminal Law, 11, 29, 34, 42.
INDORSEMENT. See Surety and Indorter.
INJUNCTION AND RECEIVER.
1. Pendency of bill to foreclose mortgage on railroad and for ap-
pointment of receiver, in U. S. circuit court of South Carolina^
not affect operation of attachment laws of this state, though
some of plaintiffs in attachment were parties defendant before
levy made, and others were made so afterwards, it not being
a general creditors' bill. South Car. li. R. vs. Peoples' Sav. Tns.^
18.
2. Attachments levied on property of foreign corporation in this
state, and receiver afterwards appointed in its own state, be-
fore he can defend he must apply to courts where pending and
be made a party. Ibid.
3. Petition that property levied on be turned over to receiver, not
proper mode of disposing of attachments. Ibid.
4. Trustees of camp- meeting ground, contest between two sets of,
and no allegation being made that either Las interfered with
beneficiaries in enjoyment of religious worship, equity will not
interfere by injunction, but will leave parties to a quo warranto.
Harris ei al. vs. Pounds et al., 121.
5. Tax-pnyers may intervene by injunction and prohibit munici-
pality from incurring illegal debt. Hudson et al. vs. Mayor, etc. ,
ofMa)'ietta, 286.
0. Dower though not assigned, widow in possession of dwelling-
house needs no injunction to restrain creditor from selling
under execution, or to restrain sheriff, before sale, from turn-
ing her out. Notice at sale of rights will fully protect her.
Jackson & Co. et al. vs. Rain^y, 811; Spence et al. vs. Qz, 548.
bslrnclion of any pari of iwenly-foot alley dedi-
;e of grantccB of lois adjoining by commoD grnDior.
wo privies Ihercon projeciing in alley, is. and
equily will enjoin; (Ttirange could not be ealimate<) in money.
DeOijK w. Sfllier. 433.
8. AlfiiiavitB naed on bearing of application for injiinclion consiU
tiile no part of record ; must be incorporated in bill of eicep-
lions and identified by judge. Morgan ot. Tmlly tt al., 420.
9. Discretion of cbnDcellnr in granting or refusing injunction nol
cnnlroUed unless some well rccognixud principle of law or
equily be violuted, H ■lUinam r: HoUeman, 437; Jenkins tt.
Harrtu, err, 440; Pittn v. Flourmiy rf- Epping el al., 081.
10. Vi.-ndor'slien. bill asserting, and seeking to enjoin administrator
from selling aod^pnying other creditors, but failing to charge
sucli creditors wiih notice of lien, or that tbey occupied
sucb relaiion prior lo sale of land to intesinie, injunction
properly refused. Head it al. a>. Agmek. adm'r, el al., 4il.
11. Levy under jJ./n. for balance of pnrcbase money, nol enjoined
at instance of defendant as guardian of ward, setting up I'ual
payment made was wiib fundd of ward, wbicb was known lo
plainlilT, who is insolvent, tbnt ward is equilably eniiiled lo
land, or lo bave it sold and money refunded, especially
where there In no lender of balance due. Shealj/, guardian, w
T,>nle, 613.
1.'. Adjacent properl}' owner not cnlitled lo injunction because
Hewer which is about to be inserted may be too small for vol-
ume of water, ibus flooding tot, causing Bicko ess, etc. Matter
is in discretion of municipal antborllie?. May.tr.elc .of Ameri-
eit» M. Eldiidije, 624.
13, Judge of city court no authority lo grant tnjnnelion in vacation
nnder provision of conslilulion of 18T7 autburizinf! btm and
judge of superior courl to preside for encb other in certain
<:ases. JiorthKetlern if. L. In». Co. w. TKfn^izon, arfrnV, 550.
14. R ni of lands pending litigation, under order of court, pass
wiih corpus in the adjudicated disposition Ibcreof. Banetti.,
a'm'ri, vi. Slokea, adm'r, 758.
11 Ministerial oO!lcer attempling to collect money under forms of
law, but without any valid const! lutional law lo aulborize the
process he uses and calls an cxcculion for taxes, it is tbe duff
of Ibecourla lo arrest the procecdinL'. ]Vrii)hl. imiiji. gen., ef
al. va. Soulhitettern Railroad, 783,
Ifl. Equily has jurisdiction to interfere in hclinlf of railroad com-
pany on following grounds: First, liecau.se eiactions urc
pressed upon it in form of annual taxes, violative of lis cbai^
tcrod rights and destructive of its frunt-bise: secondly, esac-
INDEX. 835
tions might be repeated and puits and costs mulliplied; thirdly,
it wfis misled by action of comptroller and legal fraud perpe-
trated on it ; fourthly, mistake caused by defendant's conduct;
and, fifthly, the numerous questions made as to different parts
of the road, and the liability of each branch, most of them
dependent upon separate charters and amendments, etc., make
case complicated to a degree that court of equity can better
unravel it than court of law. Ibid.
17. Tax executions having been issued and levied upon property in
Bibb county, by sheriff thereof, and the principal otflce of
road being in that county, superior court thereo' had juris-
diction of bill to enjoin. Ibid.
INSANITY. See Gnmiiml Law, 39.
INTEREST AND USURY.
1. Deed tainted with usury void as title, and if good tis equitable
mortgage, it is only so far as to secure principal. Denham vs,
KirkjMifrick, 71.
2. Holder of such deed, by notice given at sale of amount of debt
to him, including therein the usury, causes property not to
bring full value, he becoming the purchaser, is liable to
grantor fur difference. Ibid.
*S, Deed executed whilst there was no usury law in force, could
not be tainted. Tummons vs, Hamilton, 137.
4. Loan made in 1873 at usurious rate, on two notes payable fol-
lowing October and November. At maturity usury laws had
been repealed. The first was paid, and the second renewed
by draft, without purging. To suit on draft begun in 1877,
usury paid on note which was discharged not matter of de-
fense. WUliamnvs. Orif, Bank. Co,, 178.
5. Contract made for more than 10 per cent., under act of De-
cember nth, 1871, it was valid for that much. Ibid,
6. Limitations, usury paid from 1873 to 187«'> cannot be pleaded as
against suit commenced in 1879. Finney vs. Brumby, trustee,
510.
7. Appeal from justice court, iutercEt on liquidated amount sued
for cannot be remitted so as to avoid. Howard vs, CharnberUn,
Boynion dt Co . 084.
8. Tax due on pan of property not covered by limitations in
charter, equitable that company should pay interest at least
from time tax was claimed by officers of state. Wright, comp.
gen* I, et at. vs. Southwestern Railroad, 783.
INTERROGATORIES.
1. Party making himself witness held to answer strictly and
83G LNDEX.
minutely every question, or testimony rejected. Mifward ».
Chamberlin^ Baynton db Co., 684.
2. Error turns upon ruling based on inspection bj court of set of
interrogatories used on trial, certiorari not dismissed because
originals were attached to petition. SeoUw, McDaniei, 700.
3. Commissioners are officers of court for purpose of taking tes-
timony, and presumption is that they performed duty by
having answers written by competent person. Ibid,
4. Presumption not rebutted by mere inspection of them, without
more, although handwriting in body of answers, the signatures
of commissiuners and that of the witness, may each appear to
be different. Jbid,
JOINT-TENANCY. See EMaUs, 1-3.
JUDGMENT.
1. Arrest judgment, refusal to cannot be mode g^und of motion
for new trial. May be excepted to in bill of exceptions which
brings up whole case, but not in that which brings up only
motion for new trial. Watson vs. State, 61.
2. Subject, property found in claim cose, followed by affirmance
in supreme court| claimant concluded as to validity of original
judgment between creditor and debtor. Henderson m. HiU,
202.
d. Decree ogainst realty held In trust, trustee being party to bill,
beneficiaries cannot interpose claim. Zimmerman ft oL w.
Tucker, 432.
4. Distribution of money, final judgment for passed, and during
same term some of parties to proceeding petition for rule nisi
requiring others to show cause why judgment should not be
set aside because of mistake, etc., rule should not be granted
where there is no verification of facts alleged, no mistake ap-
pearing on face of former adjudication. Dugan et al. ts. Mr-
GUiun et al., 446.
6. Motion made March 81st, 1870, to set aside decree rendered in
1871, was barred by act of February 15th, 1876. Ptumb, trus-
tee, vs. Tucker, 407; In re Bradley, 535.
6. Administrator's sale discharges lien of judgments, exception
where levy has been made before sale, not include construc-
tive levy by reason of filing of bill to subject land. Rhett,
trustee, vs, Ga. Land and Cot, Go., 521.
7. Service, jurisdiction in court of amount and person, as well as
judgment against defendant, although by default, or not
founded on sufficient evidence, conclusive as against affidavit
of illegality based on causes anterior thereto. Greens vs, OU^
phant db Hannah, 565.
INDEX. >:!7
H. Motion to dismiss eer/tV^ra?!* made and overruled, but no order
entered on minutes, and at subsequent term same ground was
again urged on new motion to dismiss, no error in allowing
order to be entered nunc pro tune, and holding that ground to^
be res adjtidieaia. FuUer vs. Arnold et tue. , 599.
9 Foreign judgment, plea to suit on which appertains wholly to
matters occurring anterior thereto, stricken. MeAUisier m.
Singer Man. Co., 623.
10. Nune pro tunc or Aar, on motion to enter question of fact in-
volved as to passage of original order, court should decide
without jury. Lewis et al. vs. Armstrong, adm'r, 645.
11. Purchase with four years* possession, under §3583 of Code,
does not protect one who buys with notice that property is
then subject to judgment. Prater vs. Cox et al., 706.
12. Excess of'amount declared] for, judgment covering is irregu-
larity, but constitutes no ground to dismiss levy. Buire vs,
Loitman Q. & S. M Co , 769.
JURISDICTION.
1. Ordinary exercises limited jurisdiction in issuing commission
for examination of person alleged to be imbecile. Proceed-
ings must show on face such facts, especially touching notice,
as will authorize judgment appointing guardian. Morton
guardian, vs, Sims, 298.
2. Court of county of sheriff has jurisdiction to rule him, though
mortgage^'. /a., on which it was claimed money had been
illegally paid, was returnable to subsequent term of another
county. IloUis et al, vs. SavXsbury^ Bespess <& Co., 444
3. Waive absence'of jurisdiction of person, defendant cannot so as
to affect rights of third persons. Rhett, trustee, m Oa. L. rf-
Cot, Co., 521.
4. Act of court after jurisdiction has terminated, without legal
effect. Oreene vs. Oliphant A Hannah, 505.
5. Levy under foreclosure of sawmill lien on mill etc., and claim
filed, case returned to county of residence of defendant in
fi. fa. Akin vs. Peck <fe AUen, 643.
6. Will provided for payment of debts, of specific legacies, and
that balance should go to son for life with remainder to chil-
dren, and If none, then to other relatives. Also, that son
should not control property until he became of age, and that
executor should see to religious and secular education. Son
became of age in 1854, and died in 1860, leaving child born in
1855. On ex parte proceeding in equity, filed in 1843, less than
thirty days before term, court of county where executor lived,
rendered decree, founded on verdict of jury, allowing him to
888 INDEX.
sell certain really to pay debt, and tu make distribution re-
quired by will: Held, that though proceeding was irregular,
court was not without jurisdiction, and decree, not l>eing void,
cannot be collaterally attacked. Dean, exr, m. Vent Cot P.
Co., 070.
7. County of residence of principal, action against him and two
securities residing in different counties, and principal died,
lil'a to jurisdiction by sureties properly overruled. WaUk
el al. VK Cotqtiitt, gov. , 740.
8. Tax executions issued and levied in Bibb county, and principal
office of railroad company being in that county, superior
court thereof hnd jurisdiction of bill to enjoin. Wright, annp.
gen.^ et al. vs. Smthwentern Railroad, 783.
JURY.
i. Casual conversation by juror with person not on jury, and pro-
curement by bailiff of newspapers for him, not necessitate
new trial, it appearing that nothing was said or done which
had any bearing on case. Flanegan vs. State, 52.
2. Capital felony, for juror to retire with leave of court in charge
of bailiff, on trial of, not illegal separation. Nealeial.,t$
8 ate, 272.
^. Commissioners acting and recognized by court as such, are offi-
cers de facto if not de jure, and that no order of appointment
appears on minutes will not, in trial for felony, be cause of
challenge to array. Cor vs. Statu, 374.
4. Alphabetical order, that sheriff selected tales jurors from list in,
no ground of challenge. Ibid.
<5. Statutory questions answered so as to make juror prima fade
competent, and he being then put upon presiding judge for
further crial. judge may decline to allow any other questions
to be propounded, and confine investigation lo evidence ali
unde. Ibid.
^. Grand juror's name on minutes as properly drawn, sufficient
reply to exception to indictment that his name was not in jury-
box. Cross vs. Statef 443.
7. Kemark by juror before impaneled indicating bias, explained,
and if simply for purpose of avoiding jury duty, fact that he
was taken on jury which convicted, not necessitate new trial.
HiU vs. State, 453.
8. Conversation by juror with wife apart from others, no ground
of new trial, where it appears it had no reference to case, and
was with consent of defendant's counsel. Ibid.
ft ObiecViouB propter defectum to late after verdict. Ibid
10 Polled, langu.tgo used by juror on being, shows that he assent-
ed to verdict. Ibid.
INDEX. 83&
11. Verdict, juror cannot impeach by affidavit. Ihui.
12. Const ilution of 1877 does not alter law in reference to jury
being judges of law and fact in criminal cases. Ibid.
13. Constitutions of 1868 and 1877, effect of provisions relating to
jury system. HamUn et al, m, Fletcher, executor, 54y.
14. Court has no power to indicate who shall be placed upon panel
as jurors to complete it. How talesmen should be selected.
Ibid.
JUSTICE COURTS. See Appeal, 4; Charge of roart, 17; Garnis/i-
menl, 3.
LANDLORD AND TENANT.
1. Evicted, tenant cannot treat himself as, and attorn to another,
without defending possession or giving his landlord notice
that it was attacked. WiUiatM vs, MeMichaet, 445.
2. Lien on crop for rent, superior to agreement between tenant
and one who cultivated the premises with him on shares, that
hitter should have all the cotton raised thereon. AMon V9,
Wilwn, 482.
3. Contract provided that if tenant be ousted from possession of
rooms, tenancy and rent should cease; that landlord entered
and used, on one or more occasions, room during absence of
tenant, not constitute fuch ouster as to relieve latter fioni pay-
ment of rent. Way et al. vs. Myer%, 760.
LEVY AND SALE.
1. Holder of deed tainted with Ubury gives notice at sale of same
as an equitable moitgage to cover amount of debt including
usury, through which he is enabled to purchase land at less
than its value by the amount of the usury, liable to the grantor
for difference. Denham vs. Kirkpatriek, 71.
2. Municipal corporation, property in use of for public, or held
for future use, not subject to levy and sale. Curry ns. Mayor,
etc. ^of 8av4t n n a/< , 290.
8. Mortgage fi. /a., corn sold thereunder and knocked off to de-
fendant in f. /a. Agreement then made between defendant
and sheriff that if former would pay off amount due on fi. fa,
he might bave corn, otherwise agent of plaintiffs, who was
next highest bidder, should taKe it. Defendant paid off mort-
gage fi. fa. and took property: Held, that lien of judgments
not in sheriff's hands was not divested by this proceeding^
and money was properly paid to mortgage /. fa. HolUtt et al.
w. i^idsbury^ Jifttfie$9 dk Co,, 444.
4. Court of county of sheriff had jurisdiction to rule him, though
mortgage Ji. fa. was returnable in sitbsequenl term of umiher
coiiDty. J hid.
a Presumption Iliat /. fa, was HaliaHed where levy on aufficieot
peraoDAltv appears, nnd do disposition thereof. Oii'twr t: Staff,
480.
6. Description sufllcient where levy nus upon "one house and
one-hnlf of lot No. 12 in tlie town or Wrighlartlle. adjoialDg
T. W. Kent and StrecW," Smith, e^.unty treaturtr, w. Oiillaie,
■AtHf. 677.
7. Itule against alieriff for Failure lo make money, it appeared that
lie liitd fulled to obey instriirtions for six niontbs, when de-
fendant died, and be was then enjoineil until right of widow
to dower and year's euppon ;ww determineii, and that plain-
tiffs were injured by delay, makes frriyiia fneit nase, Fi*«ek,
Richarth rf Co. ct. Kemp, theriff, 749.
T<. Dismisfial of levy, is motion for new trial proper mode for tior-
reclJQg error In? Qaare. Biure w, fjowman 0. it S. .V. Oo ,
769.
9, ludgmenl in excess of amount ileclared for is an irregularity,
but is no ground of dismissal of levy. Thid.
LIt'ENSK. 8ee if'i aifipni '\»-poriil«>i,, 1-6, 16.
. ADtdavit to forecluBe laborer's iien on protlucts of labor, in thia
case, shows coraplation of contracl. that wheat was raised
under contraoi. and valid excuse for not mtking demand for
payment. [Andnay tu. Lome, 438.
. Vendors lien, bill asserting, and seekiu): tn t'lijuin ndinlniHtcn-
tur from Helling and paying other eredirors, but failing to
charge aucli creditors with notice of lien, or thst 1 hey occu-
pied Bucb relation prior lo sale of land to latcKtale, injiinclion
properly refuBcd. Hemt et al. m. Ayeofk, ndrn'r, ti ai. . -HI.
. J.ien of landlord on crop for rent superior to agreement lie-
iween tenant and one who cultivated pri>niise> with him ou
shareei, that latter should have all cotton rnUc.il tlierenn. Al-
•ton VI. Wilwa, 482.
. Bill to cancel deed and to recover land conveyed by it, jury found
for complainant 400 acres of land by bin refunding to defend-
ant (967.60; such refunding was condition precedent to tbty-
lute recovery, and until it took place no lien in favor of eata-
plainanl's altorneys could attach. Ihrg lu. Uirg ttat., STB.
Saw-mill iien, levy on mill, etc., under foreclosure of and
cliiim filed, case returned to coiiDly of residence of defonduit
in f. fa. Akin v*. P^k A AUen, 64».
INDEX. 841
LIFE ESTATE. See AdminMrator* and Bxecuton, 2!); PaHie», .?.
LIMITATIONS. STATUTE OP.
1. Suspended, statute having been from 1864 to 1868, and the time
intervening between the two administrations not to be counted
until the expiration of five years, and nine months and fifteen
days to be added before bar prescribed by act of 1869 would
attach, the bond and mortgage were not barred by that act
in 1872, when the letters ds bonU non were issued. Weitman,
adm*r, et al, vs. TMotetal., 11.
H. Administration de boats non having been granted in 1872 lo one
of several trustees for purpose of securing payment of bond
and mortgage* they were not barred whilst be was sole admin-
istrator, and when he administered assets and applied them
lo debt without unreasonable delay. Ibid.
5. lufancy in reply to limitation act of 180U, effect of. Mnnroeet
tU, M. Phillips, adm*z, 82.
4. Motion made March 8lBt, 1879, to set aside decree rendered in
1871, was, on its face, barred by act of February 15th, 1876.
Plumb, trustee^ v$. Tucker, 497 ; In re Bradley/, 585.
^. Usury paid from 1878 to 1875 cannot be pleaded to suit com-
menced in 1879. FKnrtey m. Brumby, irunteey 510.
6. Items relied on to take whole account from under bar must both
be pleaded and proved. Ford va. Kennedy^ 537.
7. Kntry of payment on note by principal not prevent bar from
attaching in favor of security. MeBride, ndrn'r^ m. Hunter^
6&5.
8. Administrator of one who signed note only as surety, cannot
relieve it from bar of statute so far as prinnry creditors may
be affected thereby. Ibid.
9. Purchase with four years' posseM»(iou, under $3588 of Code,
does not protect one who buys with notice that property is
then subject to judgment. Prater w. Cor et al„ 706.
10 Advancement by father to son of wool-carder of value of
$1000.00. which former subsequently again took possession of
and use<i, fath'^r became debtor to sou, and statute would run
as well against such claim as Hgninst any other debt. Per$oU
V8. Scoff, fidm'r, 767.
LIS PENDENS. See Nofirr, 1.
MAIL. See Practice in Superior Covris, 0.
MARIilAOK. See Hy$'>and and Wife, 4-6.
MASTER AND SERVANT. See fhrUraciJi, 16; fihidence, d7-99.
842 INDEX.
MINOR. See Parties, 4; Hailroftd', 2, 3.
]^IINUTE8. See Practice in Superior CourU, 8. 11
MORTGAGE.
1. Note payable to certain person or , mortgage suliAequentlj-
given to secure which describes it as payable to payee or
bearer, on rule to foreclose, treated as explaining intention of
parties in respect to blank, and note being indorsed to assignee
of mortgage or to her trustee, held negotiable. BUiatt f»,
DtoMii, 03.
2. Married woman, mortgage assigned to. and note which it was
given to secure is assigned to naked trustee for her use, tiile to
both is in her, ;ind she may foreclose in her own name. Ibid.
3. Written assignment purporting to be made for value received,
and for love and affection, bearing date before maturity of
debt, some evidence of valuable consideration, enough to war-
rant court to touch ui*on that subject in charging. Ibid.
4. Land incumbert^ by mortgage sold by mortgagor at fall value,
bond for title given and note taken for price, and third person,
with notice of facts, purchases note before due at value, less
amount of mortgage, and afterwards buys land at mortgage
sale, he cannot collect balance of note after deducting what
land brought. Noyn v$. Ray, 283.
5. Unrecorded mortgage for purchase money on homestead will
take in preference to one duly recorded, to secure debt not
within any of exceptions of constitution. Walker w. Johiuon
etal., 303.
6. Instruments reciting that to secure debt certain property is con-
veyed at stipulated price, and concluding with habendum, ten-
endum and warranty clauses, are not mere mortgages, but
under act of 1871 carry title, with right to have reconveyance
on payment of debt. Garter et al. V9. Ounn. 651.
7. Legal effect of deed and bond to reconvey was for court, and
parol proof tending to show that they constituted a mortgage
was properly excluded, the itistrumcnts being unambiguous,
and no charge of fraud, accident or mistake being made.
Kieth M. CalehingH, 773.
MUNICIPAL CORPORATIONS.
1. Macon may collect license tax from any firm retailing fresh
meat in city, whether from stalls, stores, or by peddling same
on street. Exception exempting farmers selling their own pro-
duce, does not make the tax invalid as to others. Da9 9dtC»,
vs. Mayor, etc , of Macon, 128.
INDEX. 843
2. Wagons used in the business may also be taxed. Validity not
impaired by exempting wagons used in delivering milk froio
dairies on country farms. Ibid.
3. Property tax paid, no obstacle to collection of business tax
measured in part or in whole by the employment of vehicles
already taxed ad valorem as property. Ibid.
4. Butcher whose residence, shop and pen are all out of the city
limits, but who habitually hauls inside a part of his fresh
meat and delivers to regular customers at their doors, making
no charge for the delivery, is nevertheless within the ordinance
both as to license tax and specific tax on wagon. Ibid.
5. Stone Mountain, though having authority to grant or withhold
license to retail, and to establish police regulations generally,
cannot, after granting a license, pass and enforce ordinance
requiring all retailers to close doors and forbear to sell whilst,
and at all times when, "any denomination of Christian peo-
ple" is holding divine service anywhere in the town, the
ordinance being silent as to any and all other worshippers.
OHham dh Brown vs. Wells et aL, 192.
6. Stipulation in bond of retailer to abide by all ordinances which
ihay bo passed, does not bind him to subsequent ordinance
which authorities had no power to pass. Ibid.
7. Itinerant traders, merchants who ship from St. Louis to Atlanta,
to agent, who sells by going about city to engage goods, and
then delivering from cars, having no store or warehouse, are,
and liable for taxes imposed upon that business. Burr & Co,
vs, Oitp of Atlanta, 225.
8. Appeal in forma pauperis, corporation may enter through its
chief executive officer. Mayor, etc. , of Sarninnah vs. Brown, 229.
9. Mayor can only try and dismiss policeman in judicial capacity
as mayor, and appeal to mayor and aldermen in council will
lie from his decision. Ibid.
10. Marietta has no authority, under constitution of 1877, to incur
debt of $3,000.00 in order to exchange old fire engine for
steamer, until there has been an election held according to a
law prescribing manner thereof. Hudson et al. vs. Mayor , etc.,
of Marietta, 286.
11. Tax-payers are interested to see that their city does not incur
such debts except lawfully, and may intervene by injunction.
Ibid.
12. Levy and sale, property of municipality held for public use, not
subject to. Ciirry vs. Mayor, etc., of Savannah, 290.
13. Contractor engaged for year to work streets •f city according
to plans, etc., on suit against city for damages for wrongful
V 61-53
844 INDEX.
discharge, evidence admissible to sliow that he worked streets
in proper manner. Majfcr, etc, ofAfMrieuM vs. Akseander, 447.
14. Power to open streets, construct sidewalks, levy taxes, etc., nec-
essarily implies right to insert sewer in sidewalk to carry off
surface water instead of open ditch. Mayor, etc., of Amerieui
M. EUiidge, 524.
15. License taken out as livery stable-keeper, authorizes hiring oat
two-horse wagon by day for purpose of hauling lumber with-
out obtaining license to run dray. Mayor, etc., of Grifin m.
PoweU, 625.
Kegotiable instruments.
1. Certificate of deposit ''subject to order, on the following terms;
interest at 7 per cent, on call, or 10 per cent, by the year,'* signed
by the cashier of a bank, and indorsed in blank by the payee,
is in effect a negotiable promissory note, payable generally on
demand, and due immediately, and no demand, notice or
protest is necessary to charge the indorser. Lynch os. Qold^
smith, 42.
2. Note payable to certain person or . mortgage subsequently
given te secure describes note as payable to payee or bearer,
treated, on rule to foreclose, as explaining intention of par-
ties in respect to blank, and note being indorsed to assignee of
mortgage or her trustee, held negotiable. EUiott m. Deastm,
68.
3. Set-off between maker and payee arising subsequently to trans-
fer of note and out of transactions wholly disconnected there-
with, negotiable paper transferred bona fide, whether before or
after maturity, and whether for a valuable or a good consid-
eration, not subject to. Ibid»
4. Delivery to frienC acting in her behalf effective where n^otia-
ble paper is assigned to married woman, or to a naked trustee
for her use, both being absent. Ibid.
6. Partnership property, note given for payable to order of one
partner individually, cannot be indorsed by another member
of firm in name of payee so as to pass legal title, with inci-
dents of negotiable paper transferred before due, without
more authority than that which results by operation of
law from the partnership relation. MeOauley ei ai. w. Oordon,
221.
6. Alteration of such note by inserting therein words '*or bearer,**
is material alteration. Ibid.
7. Note payable to assignee in bankruptcy or bearer, and thouj^
sued in representative capacity, yet courts of state have
jurisdiction thereof. Any person in possession could have
maintained such suit. OolUer, amgnee, vi, Barnes, 488.
INDEX. 845
8. Receipt from payee of negotiable paper in full of note, not
protect maker from payment when sued by bona fide holder
thereof before due. Wikoz, Qihbs d Co. v$. AtUtman, 544.
9. Transfer by delivery, without indorsement, of notes payable to
order, transferees charged with notice in transferrers. Plant-
ertt* Bank v%. Prater etal, 609.
10. Transfer by delivery, without indorsement, of notes payable to
order, does not carry with it title to land conveyed to payees
to secure payment thereof. Ibid.
-NEW TRIAL.
1. Evidence conflicting on real issue, and court charged errone-
ously on controlling points, new trial should be granted.
Weitman, admW, et al, vs. Thiot eial.,\\\ Champion «#. Wilsoii
db Co., 184.
2. Newly discovered evidence tending to impeach witness, and in
the main cumulative, DOt ground of. Flanagan vs. State, 52.
8. Arrest judgment, refusal to cannot be made ground of motion
for new trial. Watson vs. State, ^1.
4. Immaterial error no ground of new trial. Elliott vs. Deason, 68;
Ford vs. Kennedy, 537; Eosser vs, CTieney etal., 564; Commission'
ers of BartovD Co, vs. Newell, 699; Willis vs. Meadors, exW, 721.
5. Judge who granted rule nisi related to one of the parties, not
valid objection to hearing by non resident judge who tried
case, and to whom mot ion wns submitted by consent. Thomas,
trustee, et al. vs. Jonea *Ss Norris, 139.
6. Judge hearing motion may correct grounds of motion and
brief of evidence. Ibid.
7. Adjournment to specified time at which no cases were to be
tried except by consent, not prevent filing of motion for new
trial. Ibid.
8. Certificate of judge verifies brief of evidence, not agreement
of counsel; hence judge may correct. Tritt vs. Roberts, 156.
9. Evidence objected to contained in answers to interrogatories,
portion must be designated in some way so as to leave no
uncertainty in respect to the subject matter and range of the
objection. Coxvs Weems^ 165.
.10 Verdict warranted by evidence. Nealetal. vs. State, 272; Stokes
vs. Tift, 812; Cox vs. State, 374; Geo. d Ala. S. Co. vs. MeOart-
ney dk Ayers et al.. Couch vs. State, Austin vs. State, Griffeth vs.
State, Dykes vs. State, 438; Mayor, etc., of Amerious vs. Alexan-
der, 447; Hill vs. State, 453; (Mrk, trustee, vs. Bryee, 486; JEfar-
din, ex^r, vs. Almand, 582; Adams et al. vs. Clark, 648; Jones et
al. vs. Smith, gov., 711; Simmons vs. Camp, 726; Bones vs.
Printup Bros. <fc Co., 753; Kieth vs. Catehings, 773.
846 INDEX.
11. Decision by judge without jury in yacation, under consent
reference in term, there is no provision of law for granting
new trial in. Moreland vs. Stephens, sh*ff, et al , 289; Lester vt,
Johnson et al,, 295.
12. First grant of now trial not reversed unless it be made to ap-
pear that law and fact require verdict notwithstanding judg-
ment of presiding judge to contrary. Sparks vs. Nojfes^
City of Atlanta vs. Champs et al,, Elliott, exW, et al, ts. Sat,
& Og. Can. Co., Scofield Bol. M, Co, et al, ts. State, 4^;
Woodward d Co, i». Qourdins^ Young dk Fi^ost, 490; HUl, adm\
tfs, Sheibley, 529.
13. Motion for new trial, defendant entitled of right to make at
any time during term at which he was tried. Smith m. State,
489.
14. Right not forfeited by fact that sentence has been passed on
him. Ilnd,
15. Counsel, new may be employed to make motion if defendant
so desires. Ilnd,
16. Sentence ought not to be modified by any arrangement looking
to abandonment of right to move for new trial, and if so mod-
ified, defendant not estopped. Ilnd,
17. Appeal for leniency not forfeit right to move for new tnaU
Ibid,
18. Judge certifies that he declined to pass upon merits of motion
in case tried before another judge, because brief was not ap-
proved by said judge at the time agreed on by counsel, and
no rule niei was granted by him, supreme court is compelled
to affirm judgment. Tyson vs. Myrick et al., 443.
19. Newly discovered evidence merely cumulative, not ground for
new trial. HiU vs. State, 453.
20. Reversal ordered unless small amount be written off from ver-
dict. McAllister vs. Singer Man, Co,, 622.
21. Record, entire, before court on hearing of motion, and if it
appears that plaintiff had no right to recover, independently
of any errors committed on trial, verdict should not be va-
cated. WiUis vs. Meadors, exr, 721.
22. Verdict unsupported by law or testimony. Williams, adm^x,
vs. Jeter, 787; Foster et al, vs. Stapler et €U., 766.
23. Dismissal of levy, is motion for new trial proper mode of cor-
recting error in? Quc^re. Buicevs, Lawman O. <fe S, M, Co , 769,
NOTICE.
1. Lis pendens, notice by cannot affect purcbnser's title more than
if a decree had already been rendered in favor of complain-
ant. If decree would not have bound property, certainly
INDEX. 847
notice of pendency of bill would not. Rhett, truhtee, 99. Qeo,
L. A Cot Co., 521.
2. Transfer by delivery, without indorsement, of notes payable to
order, transferees charged with notice in transferrers. Plant-
ers* Bank vs. P,a'er et al,, 609.
3. Agent, actual notice to of any matter connected with agency is
actual notice to principal, and not merely constructive. Prater
f>$. Cox Hal, 706.
4. Application for dower, notice by widow to administrator of
husband's estate is notice to creditors of decedent. WilUam •
9on v8. MoLeod, 701.
5. Assignment of dower recorded in book of deeds but plat omit-
ted by accident, subsequently inserted by order of court, con-
structive notice to the world, and actual notice to creditors of
decedent who were represented by administrator. Ibid.
l^OVATION. See Surety and Indorser, 10.
NUISANCE. See Injunction and JSeceiver, 10.
-OFFICERS DE FACTO. See Jury, 3.
ORDINARY. See County Matters, 7; Guardian and Ward, 8, 9.
PARENT AND CHILD.
1. Minor, bill served on and step-father answered as her proehein
ami, she would be bound by decree in absence of fraud. Ouy-
ler et al. vs. Wayne, adin'r, 78.
2. Minor damaged in person may sue for any permanent injury
reaching beyond majority, whilst father may recover for any
damage by loss of service of child, as also for expense in-
curred. Central Railroad vs. Brinson, 475.
8. Action on note payable to plaintiff for use of children against
father, plea setting up that defendant is natural guardian, that
plaintiff is insolvent, and if . permitted to collect will appro-
priate to his own use, and praying that upon defendant's giv-
ing; bond for the faithful management of the fund the note
shuuld be decreed satisfied, not stricken on demurrer. Smith
vs. DanieUy, 554.
a>ARTIES.
1. Attachments levied on property of foreign corporation in this
state, and afterwards receiver appointed for corporation in its
own state, before he can defend he must apply to courts where
pending and be made a party. Siuth CaivUna Railroad vs.
People's Sai>. Ins., 18.
848 INDEX.
2. Accounting between partners, to authorize, both must be pres-
ent as partners. EUiatt vi. Deawn, 63.
8. Partition, parties to proceeding for who were served, afterwards
on bill filed by one who was not served, to set aside sale as to
him, answered that they were content to stand by it, etc.,
cannot subsequently attack sale because of want of service of
all parties. (htyUr et al. n$. Wafftie, ctdmW, 78.
4. Miner, bill served on and step-father answered as herprwkM
ami, she would be bound by decree in absence of any fraud.
5. Verdict proper against trust estate, but usee for life and her
trustee alone being parties defendant, judgment should have
been against life estate only. Thomtu, trustee, et ai. «. Jane*
dt Norru, 139.
6. Counties, suits by or against, under provisions of constitution
of 1877, must be in name thereof. Bennett et ux. tg. Walker
et al., cotn'rs, 820.
7. Corporate magistracy of county and of city constituted of same
persons or board, and sue in former character upon prescrip-
tive title in county, they cannot recover upon proof of title
in city. Ibid.
8. Marshal [assets, bill to by executor, and one defendant files
answer in nature of cross-bill against certain! co-defendants,
voluntary donees of property under testator, another co-de-
fendant, not made party thereto, may file independent bill
to accomplish same object, and will not be bound by result of
litigation on cross-bill. CUvsland et al. us, ChambUss, guardian,
853.
% Decree against realty held in trust, trustee being party to bill,
beneficinries cannot interpose claim. Zimmerman el al, tt.
Tucker, 432.
1 ). Sheriff necessary party to bill of exceptions to judgment dis*
tributing fund on money rule. Brown vs. Wylie dt Co., 435.
11. Amendment, new party cannot be introduced by. Sliealy, guar-
dian^vs. Toole, 519.
12. Pap<;r produced under notice, admissible without proof of exe-
cution as against party producing it, and those succeediDg.
to his status in case. McMaUk v«. Ted, adm'r, 595.
PARTITION. See Parties, 8.
PARTNERSHIP.
1. Advances by partner to carry on business are generally on
credit of firm, and not on separate credit of copartner. Re*
imburscment involves settlement of partnership accounts, and
both partners must be present as parties. EUioit m. Deaaon, 6S..
INDEX. 849
2. Indiyidual, defendant saed as, recoyery cannot be had against
him as partner. Champion vn, WiUon dt Co., 184.
8. Note payable to order of one partner indiyidaally, giyen for firm
property, cannot be indorsed by another one of the partners
in the name of the payee so as to pass title, with incidents of
negotiable paper transferred before due, without more au-
thority than that which results by operation of law from the
partnership relation. McCauley et al. m Gordon, 221.
4. Incoming partner, to bind with debts of former firm, to which
defendants succeeded, plaintiff must show some agreement on
his part. Bracken d: ElUworih vs, LiUon d Sons, 243.
5. Writing, should agreement be in as promise to pay debt of third
person? Quare. Ibid.
6. Survivor, proceeding against, plaintiff incompetent witness
touching transactions between himself and deceased. Ford
V9. Kennedy, 587.
7. Partnership or no partnership the issue, sayings of one who-
admitted himself to be partner, inadmissible to prove that an-
other was such. Ibid.
8. Admission of one who denies being partner admissible to prove
him such. Ibid.
9. Attachment sued out against partner on firm debt under §3270 of
Code, declaration need not be against both partners, but only
against him who is thus subject to summary process. Connon
M. Dunlap, 680.
PAYMENT. See Banks, 1, 3; Negotiable Instruments, 8.
PEDDLERS. See Municipal Corporations, 7.
PENALTY. See Tax, 15.
PLEADINGS.
1. Declaration not so defective as that verdict thereon would be
necessarily illegal. Defects amendable and would be cured
by verdict. Rice vs. Oeo. Nat. Bank, 178
2. Over-payments may be recovered in suit on an accoimt, but
must be specified and pleaded as a set-off, with like particu-
larity. Bracken & Ellsworth D8. Dillon <ft Sons^ 243.
8. Facts constituting valid defense must beset forth in plea ; legal
conclusions insufficient. Finney vs. Brumby trustee, 510.
4. Foreign judgment, plea to suit on which appertains wholly to
matters occurring anterior thereto, and which shows great neg-
ligence in failing to set up defense to original action, properly
dismissed on demurrer. McAUisier vs. Singer Man, Co , 622.
850 INUEX.
5. Pica, mf)re than one filed, and Terdict f^ils to disclose opes
which it was based, jury remanded to room to fix face if eoo^
sel so request or pleas are contradictorj. Clark wb, Ciify,
adm^, 6G2.
POLICEMAX- See Criminal Law, 4, 5.
POSSESSION. See Pretenption, \, 2, 6-8.
POSSESSORY WARRANT.
1. President of corporation cannot maintain warrant io his own
name to recover possession of corporate propertj of wiii<±
he has had no prior possession either as an officer or an indi-
Tidual. MeEvoy m. Hu99ey, preUdent, etc., 814.
2. Corporation, not officer representing it, complaining paity, affi-
davit made to obtain warrant must negative consent of cor-
poration (not consent of officer) to disappearance of propotj,
and allege that corporation does in good faith claim, etc Ibid.
POWER. See ContraeU, 4. 5; E$taU9, 2. 3.
PRACTICE IN SUPERIOR COURTS.
1. Damages, action for transferred from county to superior coart
because plaintiffs title to land was involved, goes in its en-
tirety to that tribunal, and will be fully and finally disposed
of therein. Denham va. Kirkpatriek, 71.
2. Verdict, right for court to have put in proper form before dis*
charge of jury, substance not being changed. Ibid,
3. Open case for new evidence, court is always at liberty to before
argument closed, and unless abused, discretion not interfered
with. Bracken & EUsworth vt. DiUan dk Sons, 243.
4. Consolidate three actions, to require superior court to, defend-
ant must make it appear either that he has no defense, or that
defense is same to each, and must aver what the defense is.
Oerding, sur. part,, vs, Anderson, Starr dt Co., 804; Iloteafdn.
Chamberlin, Boynton & Co. , 684.
5. Examine fresh witness on general case, too late after state has
rebutted prisoner's evidence and closed, unless some good ex-
cuse is rendered. Jackson m. State, 344.
6. Reinstate case, discretion refusing to not controlled. Parties
transmitting papers by mail take risk of same being receired
in time. Man. Fire Ins. Co. m. TumUn^^l.
7. Judges of superior courts may preside for each other although
neither one be disqualified to sit in the case tried. Earrison
dt Co. vs. Ball S. dbL.Co.y 558.
8. Act provided that no suit should be settled without consent aod
IKDEX. 851
r^-
writtea order of judge entered on minutes. Order was taken
in open court sanctioning the compromise agreed on; it was
signed by counsel for state and entered on minutes, which
were approved and signed by judge on same day: Held^ that
the minutes furnish the strongest presumptive evidence of the
consent and written order of the court. QaMU vs. State, 603.
9. Bill filed by defendant to enjoin ejectment, court cannot, over
objection of either party, order common law and equity case
tried together. Rosser vs. Cheney et al,^ 564.
10. Issue of fact as to passage of order involved in motion to enter
nunc pro tunc, court should decide without jury. Lewis et al.
vs, Armstrong, adm'r^ 645.
11. Minutes, proceedings of courts of record to be ascertained from.
Clark vs, Cassidy, ajimW, 662.
12. Plea, more than one filed, and verdict fails to disclose upon
which it was based, jury should be remanded to room, if coun-
sel so request or pleas are contradictory. Ibid.
13. Jadge of superior court having approved brief of evidence and
signed bill of exceptions, has exhausted power in respect to
testimony, and cannot, by certificate subsequently made, alter
brief as approved. Joims vi. State, 697.
14. Reopen testimony after argument commenced, court may per-
mit. Jones etat. vs. Smithy gov., 711.
15. Law upon which case must turn fully argued and evidence
closed, not error to announce to counsel that principles in-
volved had been settled in his mind, and then to road in pres-
ence of jury what he should charge. Kteth vs. Catehings, 778.
16. Principles of law governing case, separately considered, are not
changed, nor their power lessened, by massing objections
thereto together, and in their totality presenting them to the
court. Ibid.
PRACTICE IN SUPREME COURT.
1. Arrest judgment, refusal to may be excepted to in bill of excep-
tions which brings up whole case, but not in one which brings
up only motion for new trial. Watson vs, Slaie^, 61.
2. Habeas corpus sued out by wife of prisoner, she is entitled to
writ of error upon final decision. State ex rel. Lynch vs.
Bridget, Jailer, et 91. , 146.
S. Acknowledgment of service by counsel signing as attorneys for
"respondents." will be construed as evidence of service on
all the respondents. Ibid.
4. Certificate of presiding judge verifies brief of evidence, not the
agreement of counsel; hence judge may correct. Iritt vs.
Roberts, 156.
852 INDEX.
5. Evidence objected to contained in answers to interrogatories^
portion must be designated in some way so as to leave no un-
certainty in respect to the subject matter and range of the-
objectioD. Coxvi. Weems, 165.
0. Motion for new trial is part of pleadings and has no place in
bill of exceptions; record controls in reference thereto. Ibid.
7. Judgment on demurrer, none in record, court will assume that
no such judgment was rendered. Bice vs. Oeo, Nat. Bank, 178.
8. Counsel for defendant conceding error on material point, call-
ing for no decision thereon, this court will reverse judgment
with appropriate directions. WilUarM i». Qriffln Banking Ch.^
178.
9. Counsel and judge differ as to what was stated or omitted in
charging jury, recollection of latter must govern. Neal et oL,
vs. State, 272.
10. Extend time for bringing cases to. this court beyond thirty days
from adjournment of the superior court, act of 1875 does not
in any case. Forsyth vs. Freer, lUges & Co., 281.
11. Decision of judge refusing new trial only error assigned, if
refusal proper for any reason, judgment sustained. Moreland
v8, StepTiens, sheriff, etal., 280.
12. Judgment excepted to right, immaterial upon what ground
superior court rested same. Lester vs, Johnson et al,, 295.
13. Notice of motion for new trial, question of sufiSciency of not
raised in court below, not reviewed here. Cleveland et al, ef.
Chambliss, guardian, 352.
14. Judgment not reviewed as against defendant not served with
bill of exceptions. Walker vs. Johnson etai., 363.
15. Approval of brief of evidence, none, and no reference thereto
in bill of exceptions, writ of error dismissed. Smith vs. Bryan,
366.
16. Pending in court below, case appears to be from record, writ
of error dismissed. MitiTuU vs. Tomlin, 368.
17. Diminution of record, suggestion must be on oath. Ibid,
18. Affidavits used on hearing for injunction constitute no part of
record; should be incorporated in bill of exceptions and iden-
tified by signature of judge. Morgan vs. Tmtty et al., 426.
10. Affidavits, if it were possible to identify them as being in
record, in this case record was not certified until after bill of
exceptions. Ibid.
20. Judgment in record not dated, but providing for slay of exe-
cution to November loth, 1878, and bill of exceptions, certified
January 17th. 1870, statiug that it was tendered within thirty
days from decision, clerk of superior court ordered, under act
INDEX. 85a
of 1877, to certify date of decision as it appeared from mia-
utes. Dismuke v$. TrammeU, 428.
21. Bill of exceptions and record differ as to matters which form
part of record, latter controls. Ilfid ,
22. Delay by presiding judge in certifying, no statement as to,
date of certificate taken as date of tender. Ibid,
28 Suggestion of diminution must set out missing record so that
opposing counsel may agree thereto. Brown, vs. Lathrop cfr
Co.. 480.
24. Final judgment, none in record, writ of error dismissed. Ibid.
25. Argument postponed until after circuit to which case belonged
was concluded, no further postponement to complete record
under act of 1877 allowed. Ibid.
26. Sheriff necessary party to bill of exceptions to judgment dis-
tiibnting fund on money rule. Brown vs. Wylie di Co.^ 435.
27. Assignment of errors must be made in bill of exceptions or
writ of error dismissed. Sewell vs. ConkU, 436.
28. Plaintiff in error must show error, and to that end must have
brief of evidence and motion duly verified, Tison vs. Myrick
tftaZ., 443
29. Voluntary non-suit, can be no writ of error to, even though
taken without prejudice and with leave to except. Jones, as^
signee, vs. Mobile db Girard Railroad, Powell vs. Boutell, 446;3fc-
Bride, adm'r, vs. Hunter, 655.
30. Acknowledgment of service after ten days from certificate of
judge, writ of error dismissed. Marietta Paper Man. Co. xs.
Faw, 450.
31. Brief neither revised nor approved by the judge who presided
at trial, or the one who passed on motion for new trial, and no
legal reason being given for failure, court cannot hear case
except as to such assignments of error as do not depend on ev»
idence. Harrison dt Co. vs. Hall. S d: L. Co., 558.
32. Verdict for plaintiff too small, not good ground of exception
by defendant. EUisvs, U. 8. Pert, cfc Chem. C<?., 571.
33. Judgment in favor of party cannot be ground of exception by
him. Hardin, (xr, vs. Almand, 582.
34. Evidence confiictiog as to original passage of order, discretion
of court in refusing to allow its entry nunc pro tunc not con-
trolkd. Liwis et al. vs. Aimstror.g, adm'r^Qi5,
35. Original pnpcrs used by consent on motion for new trial, if
case be brought up, identified copies must be attached to or in-
cluded in brief of evidence; approval of brief generally, where
what purports to be copies of written evidence are scattered
thrviugb record, not save case. Pounds vs. Hanson, 668.
>
C6. E.xceptions pendente lite must be tendered, filed, ordered to be
recorded and recorded at term when rulings complained of
were made. Howard vs. Chamberlin, Boynton dt Co., 684.
S54 INDEX.
87. Judge of superior couit having approved brief of evidence and
signed bill of exceptions, has exhausted powers In respect to
testimony, and cannot, by certificate subsequently made, al-
ter brief as approved. Jone% f>%. Sfnte, 697.
88. Ground of new trial certified not to be true, cannot be consid-
ered. Kieth vs. Catchings, 778.
PRESCRIPTION.
1. Actual possession of part of tract will constructively extend to
limit described in a deed recorded, or of the boundaries of
which adverse party had knowledge. Weitman, adm'r, et al.
M. Thiol (tal.,11.
2 Possession of part of one lot embraced in same deed with others,
not extended by construction unless deed be on record, so as
to work a title by prescription. Trilt v». RoberU, 156.
3. Deed of ordinary does not pass title out of county, he having
no power to make it, but only to authorize it to be made by
some one or more persons as a commission; if free from fraud
it may serve as color of title to base prescription. Bennett et
tut, M. WcUker et al,^ eomWs, 326.
4. Fraud may be inferred from false recital in instrument as to
mode of sale, together with inadequate consideration, etc. Ihid,
■5. Title by duration of possession sole issue, rejection of testimony
that improvements were of little value, not such error as will
require new trial. 8hieU ««. Roberts, 870.
6. Privity of estate between defendant and a long line of grantors
to lot 17 and buildings thereon obtruding over on lot 18, con-
tinuity of possession for more than seven years shown by
parol. Ibid,
7. Actual possession of such strip of 18 for twenty yeais by said
building extending thereon, without written title thereto, is
good prescriptivi title against all the world, except the state,
and persons not sui juris, unless possession originated in fraud.
Honest mistake of true line is not fraud. Ibid,
6. Husband and wife enter possession of land in 1858, and former,
in 1870, gave note to plaintiff's intestate and took bond for
title from him, and held thereunder until death, husband
during life and widow a^r death, in absence of any written
title, estopped from setting up adverse title by possession even
though for twenty years. McMdth vs. Teel, adm'r, 595.
^. Executor, prescriptive title good against, also good against ex-
ecutory devisee born thereafter. Her interest was represented
as far as it could be by such executor. Dean, tzr, vs. Ctni,
Cot. P. Co., 670.
INDEX. 855
PRINCIPAL AND AGENT.
1. Questioa as to the fact of agency for proprietor of hotel of
one who purchased as caterer, no error in excluding evidence
as to custom of proprietors of hotels in the city in buying
through caterers. Thompson vs. Douglass^ 57.
2. Competent witness, agent is to show agency not disclosed at
time of transaction in controversy, alihough principal dead,
and effect may be to make estate liable instead of agent indi-
vidually. Lowi^s vs, Candler t 236.
3. Actual notice to agent of any matter connected with agency is
actual notice to principal, and not merely constructive. Prater
tw. Caz ei al,f 700.
PRINCIPAL AND SECURITY. See Surety and Indorser,
RAILROADS.
1. Amendment to plaintiff's declaration, nor evidence in support
thereof, does not take case out of previous ruling. Central
Railroad V8, Kenney, 100.
2. Presumption of negligence against defendant by reason of mere
fact of injury, and where plaintiff was a child of only ten
years of age, and peculiar facts of case make it not altogether
certain that presumption is rebutted, non-suit not awarded.
Vickera, by next friend, vs. Atlanta & W. P. Railroad^ 306.
3. Minor of immature understanding not amenable to so high
a standard of diligence as adult. Ibid,
4. Lease by which lessee makes itself responsible for acts done on
leased road, yet neither loses identity, and any tort committed
upon line of the one or the other, should be so alleged and
proved. Central Railroad vs. Brinson, 475. See Wright, eomp.
gen., et al. vs. Southwestern Railroad j 783.
5. Presumptions, and apportionment of damages. Ibid,
6. Diligence used by employes, evidence as to conflicting, and
presumption of negligence being against company, and pre-
siding judge satisfied with verdict, this court not interfere.
Georgia Railroad vs. Cox, 610.
7. Wi.dow, suit by for homicide of husband who was engineer, two
things necessary to recovery: First, absence of negligence on
his part, and second, negligence on part of company. Deceased
shown without fault, presumption of negligence on part of
road arises. Central Railroad vs. Roach, 635.
8. Engineer having jumped from post and been killed, error to
charge that fact that he jumped is proof that he thought
jumping safest course. Necessity for jumping, ability to
jump, etc., were all questions for the jury. Ibid,
«54
37.
as.
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INDEX, 857
3CIRE FACIAS. See Orimirud Law, 25.
:SERVICE.
1. Acknowledji^ment of service by counsel signing as attorneys
for ''respondents/' will be construed as evidence of service on
all the respondents. Lynch vs. Bridges, jailer, et al., 146.
2. Acknowledgment of service of bill of exceptions after ten days
from certificate of judge, writ of error dismissed. Marietta
P. Man. Co, vs. Faw, 450.
8. Acknowledgment of service signed by one as attorney for de-
fendant is prima facie warranted until contrary appears.
Buice vs. Lovoman 0, <0. JS. M, Co , 769.
^ET-OFF AND RECOUPMENT.
1. Negotiable paper transferred bona fide, whether before or after
maturity, and whether for a valuable or a good consideration,
not subject to set-off between maker and payee arising subse-
quently to transfer, and out of transactions wholly discon-
nected therewith. EUioti vs. Deason^ 63.
2. Plea of set-off should state demand as distinctly as though sued
on, and when to suit on negotiable instrument not in hands of
44«*^ pj^ygg^ j^ must appear that paper was received under dishonor,
iPi>f^*^ that set-off was in some way connected with contract sued
I ■ It *^^' on, that there was mutuality of obligation, etc. Kinardvs.
.„rtt#"*' Sanford, 630.
3. Right to recoup must be exercised by party who would be au-
thorized to maintain suit for damages under contract, or some
sufficient reason be nlleged to take it out of legal rule. Ibid.
''f'^' .HERIFF.
1, Answer to rule shows money in hand collected on execution,
^ > and fails to disclose any legal reason for not paying it over,
, rule should be made absolute. Notice to constable, not ac-
*"'*' companied by any judgment, fl.fa., or other lien, no justifi-
cation for withholding same. Smith vs. Wade, constable, et a/.,
116.
2. Judgment distributing fund on money rule, sheriff necessary
^ — ^ party to bill of exceptions to. Brown vs. Wylie d Co., 435.
. - ' - 3. Court of county of sheriff had jurisdiction to rule him, though
mortgage^, fa., on which it was claimed money had been
afc ■'*' illegally paid, was returnable to subsequent term of another
— - ' county. HoUis et al. vs. SauUbury, Bespess d Co.^ 444.
• - "* 4. Rule against sheriff for failure to make money, it appeared that
^^ he had failed to levy for six months, when defendant died.
858 INDEX.
and he was then enjoined until right of widow to dower and
3'ear'8 support wus determined, and that plaintiffs were injured
by delay, makes prima facie case. French, Richards db Co. vs,
Kemp, sheriff, 749.
SLA. VERY. See Guardian and Ward, 1, 2.
STATUTE OF FRAUDS. See PaHnership, 5.
STATUTE OF LIMITATIONS. See Limitations, Statute of.
SUBROGATION See Estoppel, 4.
SURETY AND INDORSER.
1. Certificate of deposit, "subject to order, on the following terms:
interest at seven per cent, on call, or ten per cent, by the
year," signed by the cashier of bank and indorsed in blank by
payee, is in effect a negotiable promissory note, payable gen-
erally on demand, and due immediately, and no demand, no-
tice, or protest is necessary to charge the indorser. Lynch vs.
Goldsmith, 42.
2. Blank indorsement imports, prima fade, an undertaking to pay,
and burden of rebutting presumption is on indorser. Ibid.
3. Negotiating instrument, indorser, at time of, construes indorse-
ment as transfer of title unattended with liability on his part,
and the other party knows he so construes it, and does not
object, that construction, in the absence of an express agree-
ment to the contrary, will control as between these two par-
ties. Ibid,
4. Note signed as security upon condition that another should
also sign, and principal delivers paper to payee without
such additional name, and without notifying him of condi-
tion, surely signing not discharged. Clark, trustee, vs. Bryce,
486.
5. Indulgence to principal for valuable consideration, without
consent of surety, discharges latter. Ratification of delivery
without additional name, or of indulgence, surety still bound.
Ibid.
6. Entry of payment on note by principal dees not prevent bar of
statute from attaching in favor of surety. MeBride, adm*r, vs.
Hunter, 655.
7. Administrator of one who signed note only as surety cannot
relieve it from bar of statute so far as primary creditors may
be affected thereby. Especially is this the case where note
was barred before death of security. Ibid.
8. Liable on face of instrument as surety, party seeking to limit
INDEX. 859
liability as against co-security who is seeking contribntion,
by reason of understanding that he should only be liable as
last indorser, must appear that such limitation was known to
CO- security and agreed to by him. Simmons vs. Camp, 726.
9. County of residence of principal, action against him and two
securities residing in different counties, and former dies, plea
to jurisdiction by latter properly overruled. Walsh et al. m.
OolquiU, gov., 740.
10. Novation of contract without consent of sureties, discharges.
Ibid.
11. Payment of money by obligee in bond to insolvent obligor,
whilst indebted to him, discharges surety; especially where
such fund was collected by obligee for obligor, but could not
legally be paid to him without some legislative action. Ibid,
TAX
1. Comptroller-general not authorized by law to transfer Vxxfl.fas,
issued by him against wild lands on payment of amount due
thereon. Johnson vs. Christie, sheriff , et ai., 117.
2. Macon may collect license tax from every firm retailing fresh
meat in the city, whether from stalls, stores, or by peddling
same on street. Exception exempting farmers selling their
own produce, does not make the tax invalid as to others. Da-
vis & Co. vs. Mayor, etc., of Mown, 128.
3. Wagons used in the business may also be taxed. Validity
not impaired by exempting wagons used in delivering milk
from dairies on countv farms. Ibid.
4. Property tax paid, no obstacle to collection of business tax
measured in part or in whole by the employment of vehicles
already taxed ad valorem as property. Ibid.
5. Retailer in meat produced in Georgia, and never in city until
carried in wagon to door of customer's house, not prevent
tax on business. Ibid.
6. Butcher whose residence, shop and pen are all out of city lim-
its, but who habitually hauls inside a part of his fresh meat,
and delivers to regular customers at their doors, making no
charge for the delivery, is nevertheless within the ordinance
both as to license tax and specific tax on wagon. Ibid.
7. Itinerant traders, merchants who ship from St. Louis to Atlanta,
to agent, who sells by going about the city to engage goods,
and then delivering from cars, having no store or warehouse,
are, and liable for taxes imposed upon that business. Burr
d Co. vs. CHy of Atlanta, 225.
8. Constitution of 1877, prior to, where 100 per cent, of county tax
of 142} per cent, on stat^ tax was recommended by grand jury,
V
860 INDEX.
and items amounting to 55 per cent, or more, needed no rec-
ommendation, whole would stand* Spann et al, tw. Board off
Com*r8, 498.
9. Under latter instrument, county cannot levy tax* for *' incidental!
expenses " nor to buy safe, without assent of two- thirds off
voters. An assessment for "expenses of jail'* is equivalent*
to a levy *' to maintain and support prisoners/* and is consti*-
tutional. Ibid,
10. Ministerial officer of state attempting to> collect money under
forms of law, but without any valid constitutional law to
authorize the process he uses and calls execution for taxes,
duty of courts to arrest proceeding. Wright, oomp\ gen% et al,.
vs. JSoutliwentern Rnilroad, 783.
11. Executions having been issued against railroad aad levied upon*
property in Bibb county, and the principal office of road'
bein^ in that county, superior court thereof had jurisdictioat
of bill to enjoin collection. Ibid.
12. Limitations upon taxing power not construed to enrt^raee real<
estate other than that the continuous use of which is necea-
sary for the road. IbH.
13. Stock in the company's own road held by itself, or is cHber
roads in this state, whose charters limit or exempt taxatioin
thereon, and whose income is taxed, not liable; and stock lield^
by company in railroads without limits of state not taxable?
here. Ibid.
14. Bonds, notes, or other evidences of debt, unless they form part.
of income of road, are subject to ordinary rates of taxation.
So also water-craft belonging to company in 1876 and 1877..
Ibid.
15. Good faith, company having acted in and offered to do equity,.
and being misled by officers of state, has not lost its rights by-
its own laches ; therefore this is not case to warrant enforce^
ment of penalties for default. Ibid.
16. Interest should be paid on tax due on property not covered by
limitations of charter, from time such tax was claimed hy
officers of state. Ibid.
TRANSCRIPT OF RECORD. See Evidence, 6, 6.
TRESPASS.
1. Conspiracy to do unlawful act of violence on body of another,
law not protect each from consequence of others not strictly
observing bargain. McEioen vs. Springfieid et al., 159.
2. Calhoun purchased mill-property, dam to which is alleged to
have caused damage, |{o request was made for him to lower
INDEX. 861
same. He leased to Cbase, wbo repaired dam, and }and was
flooded. On suit against both, verdict in favor of Calhoun
was right, ffslker w, GcUhoun, est>, 514.
TENDER. See Vendor and Purektmr, 6.
TOLL-BRIDGE. See Roadii and Bridge^ 3.
TRUST.
1. Free persons of color, after status of heoame clianged both
civilly and politically, a guardian of that cliws was placed in
new relations, and his holding of the property of bis wards was
thenceforth more in the nature of a general trust. Munroe et
al, V8, PhUHps^ adm'x, 32.
2. Delivery to friend acting in her behalf effective where negotia-
ble paper is assigned to married woman, or to naked trustee
for her use, both being absent. Elliott vs. Deanon, 63.
8. Mortgage assigned to married woman, and note to naked trustee
for her use, title to both is in her and she may foreclose mort-
gage in her own name. Ibid.
4. Camp-meeting ground, contest between two sets of trustees of,
and no allegation being made that either has interfered with
beneficiaries in enjoyment of religious worship, equity will
not interfere by injunction, but will leave parties to a quo
warranto, Hdrria et al, tw. P&tinds et al., 121.
6 Devise to son except lot reserved for daughter to live on, and
should she cease to occupy the same, "either from death or re-
moval or otherwise," then to son. Will then be bequeathed to
son, in trust for the use of the daughter during her life, "he-
sides the lease in the land above mentioned,*' certain person-
alty: Held^ that the trust attached upon the lease as well as
upon the personalty. Onx tw. Weems, 165.
6. Intention to furnish daughter personally with home, she took
separate estate unaffected by marital rights of husband. I hid,
7. Competent for trustee, he being alone interested in remainder*
to waive condition of her occupancy. Iffid,
8. Decree against realty held in trust, trustee being party to hill,
beneficiaries cannot interpose claim. Zimmerman el al. vh.
Thi4iker, 432.
9. Absolute conveyance from trustee with bond to reconvey on
settlement of his individual notes payable to order of grantees,
who took with notice, and notes transferred to bank by deliv-
ery, without indorsement. Such delivery did not convey title
to land to bank. It could only be subrogated to rights of
grantees, and is affected by notice to them. Fianters Bank w.
Prater et al., 609.
862 iNbEX.
10. Wrongful conTeyance by trustee of land in which he had in-
vested funds of estate, for purpose of securing individual
debt, to one who took with notice, ot»tui que trusts could fol-
low funds. 1 bid.
USURY. See Interest and usury.
VACATION. See Ne^b Trial 11.
Vendor and puRCHASBrt.
1. Promise to pay for colt on November ist, vertdofr to fetain title
until paid for, and yet vendees liable to pay if colt should die,
is prima facie promise to pay for colt at that date, even if it
die before payment and while title is in vendee. Bayer vs,
Ausbum et al., 271.
2. Note recites that it was given for land sold and conveyed, with-
out specifying quantity, terms of conveyance must appear to
make case in behalf of defendant for apportionment on account
of alleged fraudulent deficiency in quantity. Sims, exr^ t».
Henderson, 278.
8. Land incumbered by mortgage sold by mortgagor at full value,
bond for title given and note taken for price, and third person,
with notice of facts, purchases note before due at value, less
amount of mortgage, and afterwards buys land at mortgage
sale, he cannot collect balance of note after deducting what
land brought. Noyes vs. Ray, 283.
4. Breach of bond for title, where purchaser bu>s up outstanding
title, measure of damages is actual cost. HaU vs. Harris, 309
5. Title to realty does not pass by purchase without actual con-
veyance, so long as agreed purchase money is not paid. Ten-
der is uot payment. Latham vs. McLain, 320.
6. Lien of vendor, bill asserting, and seeking to enjoin administra-
tor from selling and paying other creditors, but failing to
charge such creditors with notice of lien, or that they occu-
pied such relation prior to sale of land to intestate, injunction
properly refused. Head et al. vs. Aycock, adm'r, et ah, 441.
VENUE. See Sheriff, 3; Jurisdiction, 6, 7, 8.
VERDICT,
1. Proper form, right for court to have put in before discharge o
jury, substance not being changed. Denhamvs. Kirkpatrick.lX
2. Recovery limited to amount declared for; therefore verdict for
more is illegal, but surplus may be written oflf. QiU8 Qrdjor
use, vs. dpinks et al., 205.
8. Certain, verdict is which can be made so. Ihia,
tNDEX. S6i
4. Reasonable construction given to verdict. MiteJM vh. Word,
guardiany et aZ.,208A
5. Polled, language used by juror on l)eing, shows that he assented
to verdict. HiU vs. State, 4'$8.
0. Impeach verdict, juror cannot by affldavit. Ilnd..
7i I^arol sale of land by defendant to complainant set up by bill,
which answer denied, alleging that complainant was wrong-
fully in possession of defendant's land, and asking writ of
possession, verdict for defendant directing that writ issue,
covers all questions made. WiUiams ia. Entjli^h, 546.
8. Jury, by consent, allowed to disperse after making verdict, on
return into court, not error to allow alteration made, which
simply expressed legal meaning of finding. JoneMetat. rs. Smith,
g(yv ,711.
VOLUNTARY CONVEYANCE. See Fravdvlent Conveyance, 1. 2.
W AI VE R. See Jurisdietum, 3.
WARRANTY. See Administrates and Executors, 14; Deeda, 10.
WILLS.
1. Memorandum found amongst testator*s papers, though improp.
erly admitted to record, yet is such a document as ma}' be
used, like other surrounding circumstances, to aid in the con-
struction of ambiguous clauses, and l>eing exhibited to the
bill in connection with the will and codicils, may be consid-
ered on demurrer thereto. Cumming et al. vs. Trvsteea of Reid
Mem^ Church, 105.
2. Intention gathered from the whole will and all the codicils !)ear-
ing upon the bequest of (8,000.00, and read with light of mem-
orandum, was to give said sum absolutely to the trustees to be
expended by them as they might see fit, not only in erecting
the church edifice, but in preserving the same in perpetual
memory of the wife of testator and of himself. 7 bid,
3. Ambiguity none, will is for construction of court. Vox vs.
Weems, 165.
4. Trust attached upon lease as well as upon personalty. Ilnd.
5. Intention to furnish Mrs. 0. personally with a home, she took
separate estate therein unaffected by marital rights of husband.
Ibid.
6. Construction of language of will, involving no principle. Mc-
Kinney, adnCr, vs. WeUs dt Avera, 450.
7. Attestation must be at time and place where testator can see
that he is not imposed upon, and can have cognizance of the
persons and the act. HamHn et al, vs, Fletcher, e^^ecutar, 549.
864 inde:^.
■ --— •'••' ~ ll •• M I
WITNESS.
1. Homicide of husband, suit by widow for damageB because of,
defendants competent in their own behalf. McSwenvn. SpriM
field etal., 159.
2. Impeached by contradictory statements, witness sustained hi-
proof of good character. Charge should not state that such
evidence should not l>e treated as re-establishing disproved
facts; this is question for jury. Ibid,
3. Agent competent to show agency not disclosed at time of
transaction in controversy, though principal be dead and efTert
may be to make his estate liable instead of agent individual I3-.
Lfiwrys r«. Candler, «uV, 236.
4. FalwH in uno fcUmtA in omnihus^ and impeachment and support
of witnesses generally, touched upon. Jackmn vs. Sinte^ 844.
5. Surviving partner, suit proceeding against, plaintiff incompe-
tent to testify concerning transactions between himself and
deceased. Ford va. Kennedy, 587.
6. Belief of witness as to fact not within his knowledge inadmissi-
ble, find.
7. General understanding of witness, not based on facts, inadmis-
sible. Tfiid,
8. Other party to cause of action being dead, defendant is incom-
petent. McMaih t«. 7(?W, adm'r, 595.
9. Party making himself witness held to answer strictly and min
utely every question, or evidence rejected. Howard vs. Cham-
berlin, BoynUm d- Co,^ 684.
\
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