3. The fact that courts of equity and law have
been combined in the superior court does not give Oyster-beds, see Fisheries.
the latter jurisdiction which the two courts did not
have, and does not affect the rule that injunction
will not lie for the abatement of a nuisance, in the
absence of the allegation of special facts showing
that the statutory remedy is inadequate.-Broom-
head v. Grant, (Ga.) 10 S. E. 116.
4. Long possession of land flowed by a pond
cannot be set up as a bar to the abatement of the
pond itself as a public nuisance.-State v. Holman,
(N. C.) 10 S. E. 758.
Nuncupative Will.
OBSTRUCTING JUSTICE.
Corrupting witness.
When one, in the interest of a party to the
cause, has maneuvered to entrap or corrupt an ad-
verse witness, and the evidence suggests that he
was sent on some mission to the witness by an at-
torney of the party whose interest he sought to
promote, the court may charge the jury on the
question whether his authority, if any he had, was
pure or impure; whether it was limited to the use
of proper means for the attainment of right ends,
or extended to such means as were actually used,
and to ends apparently improper and illegal.-Sa-
vannah, F. & W. Ry. Co. v. Holland, (Ga.) 10 S. E.
OFFICE AND OFFICER.
See, also, Clerk of Court: Justices of the Peace;
Register of Deeds; Sheriffs and Constables;
States and State Officers.
Proceedings to recover records.
1. A pardon, granted by the governor to a con-
vict on condition that he leave the state within 48
hours, never to return, is authorized by Const. S.
C. art. 3, § 11, which provides that the governor may
grant pardons after conviction, except in cases of
impeachment, "in such manner, on such terms, and
under such restrictions as he shall think proper."
-State v. Barnes, (S. C.) 10 S. E. 611.
2. A convict, who had broken the conditions of
his pardon, may be remanded to the penitentiary to
serve out the balance of his sentence, though the
time in which he was to serve has expired.-State
v. Barnes, (S. C.) 10 S. E. 611.
Under Code Ga. § 2664, providing that "the
exclusive possession by a child of lands belonging
originally to the father, without payment of rent,
for the space of seven years, shall create conclusive
presumption of a gift, and convey title to the
child, unless there is evidence of a loan, or of a
claim of dominion by a father acknowledged by the
child, or of a disclaimer of title on the part of the
child," a father, in order to recover land which
has been in his child's possession more than seven
years, need only show either (1) that the child
went into possession of the land under an agree-
ment that it was to be loaned to him; or, (2) that
the father claimed dominion over the land, and
that the claim was acknowledged by the child; or,
(3) that the child disclaimed title to the land,-and
the father need not establish more than one of
these defenses to his child's claim of ownership.—
Hardman v. Newell, (Ga.) 10 S. E. 370.
Where one has been legally declared duly
elected to an office, and has been legally commis-
sioned and qualified, he has a clear prima facie
title, sufficient to authorize an application for pos-
session of the official records, and the commit- See Evidence, 28-45.
ment of the incumbent for withholding them, un-
der Code S. C. § 434, subds. 2, 3, 4, which provide
for summary proceedings to recover official rec-
ords from an incumbent in office who shall refuse
or neglect to deliver them over to his successor,
and for the commitment of such incumbent for so
withholding the records, though the title to the
office has not yet been decided in an action for that
purpose, which is provided for in the same title of
the Code in which are the foregoing provisions.
In re Whippee, (S. C.) 10 S. E. 579.
1. In an action on a written order which reads:
"Mr. C.-Dear Sir: Please allow Mr. B. to see a
statement of our account in full, and give him any
money due us, and let him receipt you for the
same, "--it is not necessary to show an acceptance
by the drawee, as the order amounts to an equita-
ble assignment of the fund.-Brem v. Covington,
(N. C.) 10 S. E. 706.
2. In an action on a written order for the pay-
ment of money, evidence that the drawers, after no-
tice to the drawee of the assignment, revoked the
order, and that the drawee paid them, is inadmissi-
ble, in the absence of evidence that the payee acted
as agent for the drawers, or that they had any au-
thority to make the revocation.-Brem v. Coving-
ton, (N. C.) 10 S. E. 706.
See Municipal Corporations, 1–6.
In equity, see Equity, 16, 17.
foreclosure proceedings, see Mortgages, 16-18.
Intervention, see Attachment, 4, 5.
New parties, see Creditors' Bill, 1.
Intervention.
Pending a real action, in which defendants
were finally adjudged to be the owners of the land
in question, the court appointed a receiver of the
rents and profits, up to which time plaintiffs were
in possession under claim of title. During such
possession plaintiffs executed an agricultural lien
to A. & M., for advances. All issues in the action
had been finally determined, though there had been
no order as to the rents and profits in the hands of
ed A. & M. to intervene and assert their rights in
the receiver. Held, that the court properly allow-
the fund held by the receiver.-McNair v. Pope,
(N. C.) 10 S. E. 252.
1. A voluntary partition, not evidenced by
writing, in order to defeat a right to a partition
under the law, must be clearly proven, and must
several parcels, pursuant to such voluntary parti-
be followed by actual possession in severalty of the
tion.-Patterson v. Martin, (W. Va.) 10 S. E. 817.
2. A person who once had an interest as joint
tenant with others in land, and whose interest has
passed from him, cannot effectually unite with his
former co-tenants in a deed of partition; and such
deed, for want of mutuality and consideration, will
not bar the representative of a co-tenant from aft-
erwards having a partition under the law.-Patter- | ship, his death, and that his devisee claims to own
son v. Martin, (W. Va.) 10 S. E. 817.
3. In a suit for partition, where the cause is
referred to a master, who finds that 10 years be-
fore there was an oral partition between the ten-
ants, when each was placed in exclusive posses-
sion of the parcel assigned to him, and the court
concurs in this finding, the complaint is properly
dismissed.-Rountree v. Lane, (§. C.) 10 S. E. 941.
4. It is error to nonsuit plaintiffs in partition,
who claim under a sheriff's deed reciting a sale of
two-thirds of the land to them, under execution
for taxes, and also under a writing, executed by
defendants' grantor, acknowledging that he held
two-thirds of the land as their tenant.-Chastain
v. Higdon, (Ga.) 10 S. E. 587.
5. A complaint alleged that plaintiff's ances-
tor was nominally, but without her knowledge,
made a party to partition proceedings of land
owned by herself and defendants as tenants in com-
mon; that before the sale an agreement was en-
tered into between defendants and two proposed
purchasers whereby the land was to be sold for
$1,370; and that in consequence of this agreement,
and of the fact that it was generally known, one
of the defendants had bid in the land for $460, and
immediately conveyed it to the purchasers at the
agreed advance. Held that, conceding the com-
plaint was insufficient to constitute a cause of ac-
tion for partition, or to warrant a decree setting
aside the sale of the land, it was not open to the
objection that it did not state a cause of action,
as plaintiff was equitably entitled to an account-
ing of the profits made by the bidder on the resale.
-Jenkins v Thomason, (S. C.) 10 S. E. 961.
Rights of purchaser.
the land absolutely, and asking for a partition or
a sale and division of the proceeds, does not im-
properly join several causes of action, as all are
connected with the same subject of action. "—
Jones v. Smith, (S. C.) 10 S. E. 340.
3. An action for the partition of certain lots as
partnership property should be brought against
the devisee of a deceased partner, claiming the ab-
solute ownership of the land, and not against his
personal representative.-Jones v. Smith, (S. C.)
10 S. E. 340.
4. The defenses of lapse of time, laches, ad-
verse possession, and the statute of limitations, in-
terposed in an action for the partition of certain
lands as partnership property, are negatived by a
finding that the partnership owned the land in
question; that there had never been a formal dis-
solution, or final settlement and division of its prop-
erty; that after a conveyance by one partner to
the other of his interest in the firm lands the land
was still openly and publicly held and used as part-
nership property to the time of the death of the
grantee, four or five years before the beginning of
the action; and that he had repeatedly admitted
that the land was still partnership property.-
Jones v. Smith, (S. C.) 10 ̊S. E. 340.
Dissolution.
5. One of two partners having, by the excessive
use of stimulants, voluntarily disabled himself from
performing service in the firm affairs, and thus
cast upon his copartner more than a due share of
labor, his agreement after dissolution, but before
full settlement and final division of the assets, to
allow his copartner, out of the assets, a specific
sum per month for a definite number of months for
past service, is not without consideration, but is
supported by a strong moral obligation, which,
under Code Ga., is sufficient to render the agree-
ment obligatory as a contract.-Gray v. Hamil,
(Ga.) 10 S. E. 205.
6. Where the order appointing a guardian of
infant defendants in an action for partition is reg 6. A contract with a partnership raises no
ular in form, and is shown to the purchaser at the cause of action in favor of one of the partners sev-
partition sale by the guardian at the time of the erally against the other contracting party, though
payment of the shares of the infant owners to the the partnership was dissolved before full perform-
guardian, and the guardian assures the purchaser ance, and though, by arrangement between the
of his appointment, the purchaser is justified in as- partners, performance was completed, after disso-
suming that the appointment is valid, and making Ïution, by that partner who has brought the suit.
the payment, though there were irregularities at--Thompson v. McDonald, (Ga.) 10 S. E. 448.
tending the appointment unknown to the pur-
chaser.-Howerton v. Sexton, (N. C.) 10 S. E. 148.
Distribution of proceeds.
7. Under Code N. C. & 1908, requiring the shares
of infants on partition sales "to be so invested or
settled that the same may be secured to such party
or his real representative," where a judgment in
partition is that the proceeds of the sale be paid
over to the several parties, tenants in common, the
shares of infant owners are payable to their guard-
ian.-Howerton v. Sexton, (N. C.) 10 S. E. 148.
PARTNERSHIP.
Subrogation of partner, see Subrogation.
Firm property.
1. Where a member of a firm sells chattels be-
longing to the firm to another partnership, of which
he is also a member, in payment of a pre-existing
debt, his co-partners in each firm being ignorant
of his connection with the other, the proper ac-
counting between the two firms, on equitable prin-
ciples, is to leave the transaction to stand as to
such common member's interest in the property,
but to cause the latter firm to account to the other
members of the former for their interest in the
same.-Gray v. Church, (Ga.) 10 S. E. 539.
Partition of partnership realty.
2. A complaint stating the existence of a part-
nership, a conveyance by one partner to the other
of his interest in partnership land, with the under-
standing that it should be reconveyed on the ad-
justment of partnership affairs, a joint use and
occupation thereof after the conveyance, the ac-
knowledgment by the grantee of the joint owner-
Firm and private creditors.
7. In order to make the individual property of
ship, it must appear that the partner was served
a partner liable to a judgment against the partner-
with process in the suit against the firm.-Clayton
v. Roberts, (Ga.) 10 S. E. 621.
firm assets are applied to the firm debts, and,
8. In Virginia, on the death of a partner, the
these being insufficient, the firm creditors are then
entitled, for any unpaid balance, to share as general
creditors, on an equal footing with the separate
creditors of the same class, in the separate as-
sets of the deceased partner.-Pettyjohn v. Wood-
roof, (Va.) 10 S. E. 715.
9. Where a partner orders goods of plaintiffs,
and the order is countermanded by him after plain-
tiffs receive notice of the dissolution of the part-
nership, but the countermand is afterwards with-
drawn, the subsequent delivery of the goods is a
completion of plaintiffs' contract with the partner-
ship, and entitles them to recover the price agreed
on.-French v. Griffin, (N. C.) 10 S. E. 166.
Surviving partners.
10. Surviving partners of an insolvent firm dis-
solved by death of one partner may make a valid
general assignment of partnership assets for the
benefit of firm creditors, with Ieferences.-Pat-
ton v. Leftwich, (Va.) 10 S. E. 686.*
Actions.
11. Where the title of a complaint sets out the
names of the individual members of a firm, it is
not necessary to repeat their names in the body of
the complaint as composing the firm, but a refer-
ence to them as "plaintiffs" is sufficient.-Walter
v. Godshall, (S. Č.) 10 S. E. 951.
See, also, Compromise; Release and Discharge.
Evidence.
were made is demurrable. -O'Neal v. Phillips,
(Ga.) 10 S. E. 352.
1. To confirm other testimony that certain See Contracts, 8-11.
payments were in fact applied to an account be-
tween the parties, the account itself, with the
credits entered therein, is competent evidence.-
-Smith v. Camp, (Ga.) 10 S. E. 539.
2. The evidence as to the payment or non-pay-
ment of the debt in controversy being conflicting,
the verdict settles the question.-Smith v. Camp,
(Ga.) 10 S. E. 539.
Presumption of payment.
3. In an action against the principal obligor in
a bond executed prior to 1868, his admission that
neither he nor his surety has paid the bond is suf-
ficient to rebut the presumption of payment, noth-
ing else appearing.-Cartwright v. Kerman, (N.
C.) 10 S. E. 870.
4. In a suit on a note executed in 1867, plaintiff,
to rebut the presumption of payment, relied on the
following indorsement on the note: "January 26th,
1884. Renewed. T. A. OSBORNE." There was ev-
idence that Osborne, the maker of the note, was
mentally incapable at the time to make such
written acknowledgment. Held, that the court
correctly charged that if Osborne had capacity
to know what he was doing, and signed the in-
dorsement meaning to signify that the note had
not been paid, the jury should find for plaintiff;
and that the words on the back of the note signed
by Osborne were sufficient to rebut the presump-
tion of payment, if the jury believed that Osborne
understood their meaning, and meant to acknowl-
edge that the note had not been paid.-Morris v.
Tomlinson, (N. C.) 10 S. E. 476.
Acceptance of bond.
5. Where a bond is given for the amount due
on an account, the cause of action on the account
is merged in the bond, though it is accepted or
condition that the debtor will pay $10 per month
on the amount due.-Costner v. Fisher, (N. C.) 10
8. Where a payment is made by a debtor to a
creditor, a part of whose claim is secured by a
mortgage, with a direction at the time that it
should be applied to the debt secured by the mort-
gage, the creditor is bound to so apply it.-Ellis
v. Mason, (S. C.) 10 S. E. 1069.
9. If the payment is made from the proceeds
of the sale of the mortgaged property, then it must
be applied to the mortgage, without any special di-
rection being necessary.-Ellis v. Mason, (S. C.) 10
10. In an action on a note, a plea which set up
that defendant was to have the privilege of paying
the debt in a manner not stipulated in the original
contract, and that pursuant to this agreement he
paid a part, and was to pay the balance afterwards,
but which did not aver that plaintiffs obtained any
advantage by this agreement, or that defendant
gave any new consideration or additional security,
or executed the agreement by paying the amount
agreed on, should have been stricken, and all the
evidence introduced under it excluded.-Patterson
v. Ramspeck, (Ga.) 10 S. E. 390.
is false is tested, like intention generally, by sound
1. Knowledge by a witness that his testimony
mind and discretion, and by all the circumstances;
soundness of mind, where nothing to the contrary
appears, being assumed.-McCord v. State, (Ga.)
10 S. E. 437.
Evidence.
2. On a trial for perjury, where the evidence
in behalf of the state tends to show that the ac-
cused testified under the motive of pecuniary in-
terest created by bribery, he has the right to reply to
such evidence by proving that before there was
opportunity for offering him a bribe, and within
about one hour after the occurrence touching
which he testified, he related the facts and circum-
stances substantially in accordance with his ac-
count of them, as subsequently given by him on
oath, as a witness, his testimony, as then given,
being the alleged perjury.-McCord v. State, (Ga.)
10 S. E. 437.
3. Whether the time when the accused was
first known as a witness is of any weight in his
behalf is a question for the jury, under all the cir-
cumstances of the case.-McCord v. State, (Ga.) 10
S. E. 437.
4. It is not admissible to prove in general
terms that the account given by the accused out of
court before he testified was the same as that to
which he testified; the witness judging of the coin-
cidence, and not detailing the count heard by
him to the jury, so as to enable them to judge of
it for themselves.-McCord v. State, (Ga.) 10 S. E.
437.
the accused testified when the alleged perjury was
5. Evidence that the person in whose behalf
committed was insolvent, or of limitel means,
is not admissible to repel the imputation of bribery.
McCord v. State, (Ga.) 10 S. E. 437.
Instructions.
6. The assignment of perjury embracing sev-
eral particulars, it was not prejudicial to the ac-
cused for the court to stress one of them, as being
the main, material matter, in charging the jury.-
McCord v. State, (Ga.) 10 S. E. 437.
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Declaration or complaint.
1. A declaration, when taken as a whole,
showed that the suit was for services not actually
rendered, but which the plaintiff was ready to
render, to the defendant, under a contract of em-
ployment. It did not allege that the contract was
made with or by the defendant, or that the plaintiff
was wrongfully discharged, or that he objected to
taking a rest when notified that he might do so.
Held, that no cause of action was set forth, and
there was no error in dismissing the action for that
reason, on general demurrer to the declaration.-
Saunders v. Atlanta & F. R. Co., (Ga.) 10 S. E. 266.
Pleas in abatement.
11. In an action on a note, a plea of payment 2. The requirement of Code N. C. § 840, rule 6,
which fails to state any time at which payments | that plaintiff in a justice's court shall show his
right to recover, where defendant does not answer,
gives defendant the benefit of a general denial
only, and the pendency of another action for the
same cause must be specially averred as a defense,
as provided by rule 9 of the same section.-Mon-
tague v. Brown, (N. C.) 10 S. E. 186.
Plea of res adjudicata.
3. One pleading res adjudicata must put in
evidence the declaration, verdict, and judgment
in the former suit; and where such evidence is not
introduced his plea is unavailing, even though an
alleged copy of the declaration, verdict, and judg-
ment is attached, and made a part of the plea.-
Findley v. Johnson, (Ga.) 10 S. E. 594.
4. To sustain a demurrer for misjoinder of
causes of action, it must appear on the face of the
complaint that causes of action, which cannot be
properly united, are sufficiently stated; and there-
fore an order sustaining a demurrer both for mis-
joinder of causes of action, and for lack of facts
to constitute a cause of action, is inconsistent.-
Jenkins v. Thomason, (S. C.) 10 S. E. 961.
5. Where a cause of action is set forth for dam-
ages not barred by the statute of limitations, it is
too late to demur specially to counts on damages
barred at the trial term, as the objection, under
Code Ga. 1349, should have been raised at the ap-
pearance term.-City of Cartersville v. Maguire,
(Ga.) 10 S. E. 603.
6. The first paragraph of a complaint alleged
that the note sued on had been executed and de-
livered to plaintiff. Defendants answered, “ad-
mitting the allegations in the first and second par-
agraphs in the complaint, and also the third, save
so far as is inconsistent with the allegations in
this answer," and then averred that the note was
given with the express understanding that it
should remain in the hands of a third person to
await a settlement between plaintiff and defend-
ant. Held, that the saving clause in the answer
showed that defendant did not intend to admit an
unqualified and unconditional delivery of the note.
-Lipscomb v. Lipscomb, (S. C.) 10 S. E. 929.
Amendment.
7. The declaration being for the recovery of
overcharges paid the defendant carrier on ship-
ments to D. only, the same should be amended in
order to recover for overcharges paid on shipments
to R. also, if both sets of overcharges be embraced
in the amount sued for.-Georgia Railroad & Bank-
ing Co. v. Smith, (Ga.) 10 S. Ě. 235.
8. The sureties on defendant's bail-bond-in tro-
ver cannot have a verdict for plaintiff set aside on
the ground that by an amendment new parties were
made, where such amendment was served on de-
fendant, who did not object thereto; the amend-
ment being one he had the right to make, under
the Code, namely, the substitution of plaintiff,
when he came of age, for his next friend, and the
insertion of the names of plaintiff's wife and child;
the property sued for being exempted property,
and they the beneficiaries of the exemption.-Phil-
lips v. Taber, (Ga.) 10 S. E. 270.
9. After a declaration has been amended, a mo-
tion to dismiss the action raises no question as to
the right to amend, but only concerns the suffi-
ciency of the declaration as amended.-O'Shields
v. Georgia Pac. Ry. Co., (Ga.) 10 S. E. 268.
10. A plaintiff who declares on the common-law
right of a servant to recover for injuries received
by reason of defective materials knowingly fur-
nished by his master, will not be allowed to amend
so as to recover under a statute, since that would
introduce a new cause of action, even where all
the facts required to be set out by the statute are
already set out in his common-law declaration,
they being mere surplusage therein.-Bolton v.
Georgia Pac. R. Co., (Ga.) 10 S. E. 352.
11. After a case has been heard at length on the
merits, the trial court may, in its discretion, refuse
an application for leave to amend the answer by
pleading the statute of limitations.-Garlington v.
Copeland, (S. C.) 10 S. E. 616.
12. A declaration which has been amended
without objection so as to cure certain defects is
not demurrable because of such defects.—Kennedy
v. Wofford, (Ga.) 10 S. E. 722.
13. Code S. C. provides that the court may, be-
fore or after judgment, in furtherance of justice,
amend any pleading, etc., by correcting a mistake,
or by inserting other allegations material to the
case, or, when the amendment does not change sub-
stantially the claim or defense, by conforming the
pleading or proceeding to the facts proved. On the
trial of the action before a referee a motion to amend
the complaint, by inserting an additional item of
merchandise, was denied. Held, that it was error to
allow the amendment, on exceptions to the referee's
report, without giving defendant time to answer
to the additional item, as it changed and added to
the original cause of action.-Edwards v. Cheraw
& D. R. Co., (S. C.) 10 S. E. 822.
14. Under Code S. C. § 194, providing that "the
court may, before or after judgment,
* on
such terms as may be proper, amend any pleading
* by adding *
the name of any par-
ty,
or by inserting other allegations ma-
terial to the case, "it is discretionary with the trial
court whether it will impose costs on plaintiff as a
condition of allowing an amendment, pursuant to
a judgment of the supreme court on appeal; there
being no substitution of a different cause of action
from that stated in the original complaint.-Green
v. Iredell, (S. C.) 10 S. E. 545.
ters of evidence, but to inform the opposite party
15. A bill of particulars is not to set forth mat-
of the cause of action to be relied on, and which is
pleadings clearly state the case, there is no error in
not plainly set out in the pleadings, and, if the
& D. R. Co. v. Payne, (Va.) 10 S. E. 749.
refusing to order a bill of particulars.-Richmond
Pleading and proof-Variance.
16. An action on an account for "damage in
timber" is not sustained by proof of defendant's
breach of a contract under which plaintiff was to
be allowed to take from defendant's land all timber
suitable for cross-ties.-Lea v. Harris, (Ga.) 10 S.
E. 599.
17. In an action for breach of contract in dis-
charging plaintiff from defendant's employment
without due cause, after having employed him for
a year, evidence that plaintiff was inefficient is not
admissible under the general issue.-Jacobus v.
Wood, (Ga.) 10 S. E. 1099.
18. In an action on a written order for the pay-
ment of money, the fact that the payee, in his capac-
ity as trustee for the benefit of creditors, sues to
recover the balance mentioned in the order, while
the evidence shows that the order was given to
him individually, and that the drawee promised to
pay him individually, is not a fatal variance.-Brem
v. Covington, (N. Č.) 10 S. E. 706.
19. In an action for personal injuries the decla-
ration alleged defendant's negligence, in that no
key was placed in the bolt that fastened the tender
to an engine; in consequence of which the bolt
came out, the engine and tender separated, and
plaintiff was thrown to the ground, and injured.
The testimony showed that the train was stopped,
and plaintiff attempted to fasten this bolt, but that
it was so short it could not be fastened. The jury
found for the plaintiff. Held, that the declaration
was not supported by the proof, and it was error
to refuse to grant a new trial.-Port Royal & A. R.
Co. v. Tompkins, (Ga.) 10 S. E. 356.
20. In an action for the wrongful seizure of
growing crops the first paragraph of the complaint
alleged that plaintiff, by virtue of certain deeds,
was owner in fee and in possession of the land on
which the crops were growing. The deeds in ques-
tion reserved a life-interest to the grantor. "The
second paragraph alleged that plaintiff was owner
and in possession of the crops growing on the land.
Held, that the averment of the second paragraph
was a distinct allegation, not connected with plain-
tiff's claim of title to the land, and it was not a va-
riance to allow her to prove a parol contract with
the owner of the life-estate, by which she was en-
titled to the crops as his tenant.-Thigpen v. Staton,
(N. C.) 10 S. E. 0.
PRINCIPAL AND AGENT.
See, also, Attorney and Client; Factors and
21. Where the declaration alleges a written See Criminal Law, 5.
agreement by O. that he would do certain things,
partly for his own benefit and partly for the ben-
efit of D., the other contracting party, evidence
that a third party executed such an agreement,
imposing the obligation upon himself, for his ben-
efit and that of D., is irrelevant and inadmissible.
-Davenport v. Henderson, (Ga.) 10 S. E. 920.
Pleas.
Where the proprietor of a patent medicine
places on the bottle containing it a label recom-
mending it for certain diseases, and directing the
size of the dose to be taken, and it is shown that the
dose contained such a quantity of a certain poison
as to injure plaintiff when he took it, the proprie-
tor is liable for the damage, whether he sold the
medicine to plaintiff directly or to a druggist to be
resold, from whom plaintiff purchased it.-Blood
Balm Co. v. Cooper, (Ga.) 10 S. E. 118.
One jointly interested with another in cot-
ton raised by himself on the other's land cannot
recover possession of the cotton as against a pur-
chaser from the other, by a possessory warrant
sued out by himself alone.-Askew v. Nicholson,
(Ga.) 10 S. E. 1089.
Of sale in mortgage, see Mortgages, 20.
PRACTICE IN CIVIL CASES.
See, also, Appeal; Certiorari; Costs; Deposition;
Equity, 18-22; Error, Writ of; Exceptions, Bill
of Judgment; Jury; New Trial; Parties;
Pleading; Reference; Removal of Causes;
Trial; Venue in Civil Cases; Witness; Writs.
Nonsuit.
1. Bail trover having been brought by an agent
in his own name for a horse that he had received
in exchange for other property of his principal,
the money paid, after judgment by the surety on
the bail-bond, is the property of the principal, as
against judgment creditors of the agent.-Water-
town Steam-Engine Co. v. Palmer Bros., (Ga.) 10
S. E. 969.
2. The principal is not estopped to claim the
fund by having permitted the agent to sue in his
own name and having assisted in the litigation,
the indebtedness of the agent having been incurred
before the trover suit was brought.-Watertown
Steam-Engine Co. v. Palmer Bros., (Ga.) 10 S. E.
969.
PRINCIPAL AND SURETY.
Liability of sureties, see Clerks of Court, 2.
on appeal-bond, see Appeal, 76.
Duress of principal.
1. A bond executed under duress of illegal im-
prisonment of the principal is void as to the surety
also, if the surety acted without knowledge of the
duress; and knowledge of the fact of imprisonment
does not necessarily involve knowledge of its want
of legality.-Patterson v. Gibson, (Ga.) 10 S. E. 9.
Parol evidence of suretyship.
2. In order to establish the priority of a debt,
evidenced by bond, under an assignment by an in-
solvent, which prefers debts due by the debtor as
surety, parol evidence is admissible to show that
the debtor executed the bond, which was joint and
several, as surety for his co-obligor, where the ex-
istence of such relation is not inconsistent with the
terms of the bond.-Williams' Adm'r v. Macatee's
Trustee, (Va.) 10 S. E. 1061.
Libilities of sureties.
3. Judgment is properly rendered against a
surety in a note secured by mortgage on a horse,
1. After the supreme court, upon review of he having assented to an exchange of the horse for
both law and facts, has held that there can be no another, which was to be subject to the mortgage,
recovery in an action for personal injuries alleged and agreed to an extension of the note after an
to have been caused by the negligence of defend- offer of the principal to pay it, and afterwards as-
ant, because of the gross negligence of the plain-sisted the principal in leaving the state.-Johnson
tiff, it is not error for the superior court on a sec-
v. Prater, (Ga.) 10 S. E. 589.
ond trial to award a nonsuit; the evidence for the
plaintiff being precisely the same as that submit-
ted by him on the former trial.-Smith v. Central
Railroad & Banking Co., (Ga.) 10 S. E. 111.
2. A demurrer to plaintiff's amended declara-
tion having been sustained, it was error to direct
a verdict for defendant, and enter judgment there-
on, as there should only have been a judgment of
nonsuit.-Exposition Cotton Mills v. Western & A.
R. Co., (Ga.) 10 S. E. 113.
3. Where an action for damages for breach of
the conditions of a written contract is brought be-
fore a justice, and upon a general denial by the de-
fendant of the complaint the justice hears the case
upon the evidence and arguments of counsel, and
enters a judgment dismissing the plaintiff's' suit
for failure to prove the execution of the contract
sued on, with costs, he cannot, by adding the
words "without prejudice to a new suit," author-
ize a new suit for the same cause of action.-Par-
sons v. Riley, (W. Va.) 10 S. E. 806.
Of payment, see Payment, 3, 4.
On appeal, see Appeal, 48.
4. A surety signed two negotiable notes, com-
plete in form, on condition that they should not
be delivered to the payee until some judgments
for which one of the notes was given should be
marked "Satisfied." The payee had no notice of
the condition, and the notes were delivered by the
principal without having the judgments marked
"Satisfied." Held, that the surety was liable.-
Fowler v. Allen, (Š. C.) 10 S. E. 947.
Discharge of surety.
5. That money sufficient to discharge a fl. fa.
against a principal and surety was raised by levy
and sale of the principal's property, and, by an er-
tion, was distributed to void f. fas. against the
roneous judgment of a court of competent jurisdic
principal alone, will not discharge the surety, al-
though plaintiff's attorney was also the attorney
of plaintiff in one of the void fi. fas., sharing in
the distribution; no fraud being imputed to the
attorney or either of his clients, and the judgment
making the distribution never having been vacated
or reversed.-McCalla v. Knox, (Ga.) 10 S. E. 624.
Remedies against sureties.
6. In an action against principal and surety,
the report of a commissioner, to whom the cause
has been referred to take an account of the liens,
etc., should be recommitted if it fails to show the
priority of their debts, or if it shows the debt to be
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