key was placed in the bolt that fastened the tender | been made by the defendant to the plainto an engine; in consequence of which the bolt tiffs to secure this note; the court holding came out, the engine and tender separated, and that the foreclosure of that mortgage adplaintiff was thrown to the ground, and injured. judicated as between the parties that the The testimony showed that the train was stopped, and plaintiff attempted to fasten this bolt, but that defendant had no defense to the note. To it was so short it could not be fastened. The jury this decision of the court the defendant exfound for the plaintiff. Held, that the declaration cepted, and this is the error now assigned. was not supported by the proof, and it was error The foreclosure of a chattel mortgage, and to refuse to grant a new trial. the proceedings for the same, are ex parte; and, there having been made no defense to such foreclosure by the mortgagor, there in this case, and the matters therein adjuwas nothing decided as to the issue set up dicated are not res adjudicata as to the And we hold, therefore, that the court erred in striking the pleas set up by the plaintiff in error in this case. Judgment reversed

Error from superior court, Richmond county; RONEY, Judge.

J. Ganahl, for plaintiff in error. & Verdery, for defendant in error.

Twiggs

same.

BELT V. FARROW.

(Supreme Court of Georgia. Nov. 18, 1889.) VERDICT-NEW TRIAL.

1. A verdict is not challengeable for not allowing a sum for rent where the pleadings set up no claim for rent, but only for a balance of purchase money and interest thereon.

in amount as not to justify the expense of another 2. Where the error in the verdict is so trifling trial, a reviewing court may decline to order a new trial, the judge below having denied the application therefor.

(Syllabus by the Court.)

BLANDFORD, J. The defendant in error brought his action against the railroad company to recover damages for injuries which he alleged he had received by reason of the defendant's negligence. In his declaration, he alleged that the railroad company was negligent in this, that it did not have a key placed in the bolt which fastened the tender to the engine; in consequence of which the bolt came out, and the engine and tender separated, and he was thrown to the ground, between them, and injured. The proof submitted by the plaintiff showed that if there was any negligence on the part of the railroad company it consisted in not having a bolt long enough to go through, so as to be keyed, and thereby prevented from coming out. The testimony showed conclusively that the train was stopped, and that the engineer and the plaintiff, who was a fireman, attempted to fasten this bolt, but it was so short that it could not be fastened. The proof failed to sustain the allegations in the declaration of negligence on the part of the company; for, instead of the negligence between these parties, Farrow rented of Belt, ing, as alleged in the declaration, that the bolt was not keyed so as to become properly fastened, the testimony in truth shows that the damage was caused on account of the bolt being too short. Whether the plaintiff could have recovered, had his declaration contained the proper allegation, we do not decide; but we are clear that the declaration was not supported by the proof submitted by the defendant in error on the trial of the case. So we think the court below erred in refusing to grant a new trial, and the judgment is reversed.

CRAFT V. PERKINS et al. (Supreme Court of Georgia. Nov. 25, 1889.)

RES ADJUDICATA-CHATTEL MORTGAGES. The proceedings for the foreclosure of a chattel mortgage being ex parte, where there is no defense to the foreclosure by the mortgagor, the matters adjudicated therein are not res adjudicata as to an action on the note that such mortgage was given to secure.

Error from city court, Richmond county; EVE, Judge.

Hamilton Phinizy, for plaintiff in error. Salem Dutcher, for defendants in error.

BLANDFORD, J. This was an action upon a promissory note. The defendant pleaded the general issue and want of consideration. The court, on demurrer, struck these pleas, upon the ground that the plaintiffs had theretofore foreclosed a mortgage upon personal property, which mortgage had

Error from superior court, Burke county; RONEY, Judge.

R. O. Lovett, for plaintiff in error. P. P. Johnston, for defendant in error.

BLECKLEY, C. J. By written contract be

for five years, certain premises, at $40 per year. The same contract gave the privilege of purchasing at $5 per acre. Near the close of the third year a payment was made on the purchase of $100, and in each succeeding year, save one, a like payment, and in one of these years two like payments, were made, until $500 had been paid in the aggregate. Upon a survey of the tract it turned out to contain 105 acres, and thereupon it seems that Farrow offered to pay Belt $25 more. Belt refusing to receive it and make a title, Farrow filed a bill continuing the alleged tender, and praying that a title be decreed. The bill was amended, setting up that the written contract was changed to the effect that Farrow was to have the land by paying $5 per acre in yearly installments of $100 each, without interest. Belt, by cross-bill, set up that Farrow was indebted to him for over $100 of the agreed purchase money, besides interest. The evidence as to there being a new contract was directly conflicting, one party swearing that there was, and the other that there was not. The jury found that Belt should make a deed of conveyance upon the payment by Farrow of $25, without interest. A motion for a new trial, on the general grounds only, was denied.

1. In the argument here it was contended that the verdict was contrary to evidence, because only two years' rent had been paid, and the rent of $40 for the third year was still unpaid, and because some interest on the purchase money was due,

and none of it allowed by the jury. Belt | tyacts of the defendant, or by acts on his part may have been entitled to rent (we sup- done without just cause or excuse, and which pose he was) for the third year, but he were adapted to produce the belief that he made no claim for it in his cross-bill. His was engaged at that time either in termipleadings say nothing about rent, and nating or in beginning criminal communitherefore the jury did not and could not cation with the prosecutor's wife. The deal with the subject. charge of the court has no reference to any cohabitation except such as may have just taken place, or such as was about to take place at the time of the hostile meeting; and we take the law of such a situation to be this: that a man surprised by the husband immediately after an actual, or immediately before an intended, adulterous

2. If the facts were as testified to by the prevailing party, no interest accrued upon the purchase money except upon the $100 which should have been paid in a given year, and was not paid until June of the next year, and perhaps some little interest on the remnant of $25; but these items are too small to warrant the expense of an-connection, can lawfully defend himself other trial, and, as the judge who presidy ed was satisfied with the verdict, we shall let it stand.

Judgment affirmed.

DRYSDALE V. STATE.

(Supreme Court of Georgia. Nov. 25, 1889.) PROTECTION of Wife-Adultery-Verdict.

1. Where the verdict is correct if the testimony of the prosecutor was true, and where the jury must have believed it true in order to render the verdict, the result coincides with the substantial merits of the case.

2. A husband may attack for intimacy with his wife in his presence, raising a well-founded belief that the criminal act is just over or about to begin, and the adulterer, though in danger, has no right to defend himself by using a deadly weapon.

(Syllabus by the Court.)

Error from superior court, Richmond county; RONEY, Judge.

W. T. Gary and R. L. Pierce, for plaintiff in error. Boykin Wright, Sol. Gen., for the State.

BLECKLEY, C. J. 1. If the evidence of the prosecutor was true, there can be no possible doubt of the correctness of the verdict; and that the jury believed it true is equally certain, from the fact that they rendered a verdict based upon it. This disposes of the case upon its actual merits. None of the errors of the court complained of could have misled the jury if the prosecutor was a truthful witness, and, with or without errors, the jury could not have reached a verdict of guilty had they doubted the truth of his testimony.

2. The charge of the court complained of in the sixth ground of the motion for a new trial must be read in the light of that testimony, this charge being: "If you believe the prosecutor caught the defendant and his wife under such circumstances as led him to believe that they had just been in the act of cohabitation, or were about to cohabit, with each other, then the prosecutor had the right to protect his marital rights; and if in pursuance of such an object he assaulted the defendant, and the defendant shot at him with the intention to kill him, then the defendant is guilty of assault with intent to murder." There was no evidence, save that of the prosecutor, which tended to show that the defendant and the prosecutor's wife were caught under circumstances calculated to induce the belief that they had just been in the act of cohabitation or were about to cohabit. If such circumstances existed, they were undoubtedly brought about either by the guil

against the husband's violence by flight only, or at least by means short of deadly. He cannot stand his ground and shoot or cut to repel the husband's attack upon him, though it may be a dangerous attack. Whatsoever the law would justify the husband in doing under such circumstances, it would not justify the adulterer in preventing by homicide or attempting homicide; perhaps not otherwise than by making his escape. The charge we have quoted, treated as a general proposition, is inaccurate, because circumstances which would lead a husband to believe that a man has just been engaged in the guilty act, or is about to engage in it, would not deprive the man of the right of self-defense on the spot, unless he himself was chargeable with giving rise to such circumstances by his own improper or unjustifiable conduct. This qualification should have been introduced into the charge, but its absence in this particular case was harmless, inasmuch as the evidence on which the jury must have based their verdict showed that it was the improper and unjustifiable conduct of the accused at the time and place of the collision which brought the circumstances of apparent criminality into existence. Moreover, the verdict was not for assault with intent to murder, but only for unlawful shooting.

The other grounds of the motion for a new trial need not be discussed, inasmuch as none of them are sufficient, under the evidence in the record, to warrant the grant of another trial.

As we have already said, the credibility of the prosecutor was the question on which the propriety of conviction depended, and on that question the sagacity of the jury can be fully trusted. Judgment affirmed.

PHINIZY V. MURRAY. (Supreme Court of Georgia. Nov. 25, 1889.) CORPORATIONS-SALE OF STOCK.

After a contract for the sale of certain shares in the stock of a corporation, but before the delivery, a dividend was declared, as to which time appointed for receiving payment and making there was no express stipulation in the contract. Held, that though, according to authorities on the subject, the purchaser, if he had accepted the stock and paid for it, would have been entitled to the dividend, yet he had no right to decline acceptance the dividend as his own, and refused to give an orand making payment because the seller claimed der for its payment to him, the purchaser. The latter, having failed, without just cause, to comply with his contract, lost his hold both upon the stock and the dividend.

(Syllabus by the Court.)

Error from superior court, McDuffie coun- | completing the contract of sale which he ty; RONEY, Judge.

J. B. Cumming and Bryan Cumming, for plaintiff in error. Foster & Lamar and T. E. Watson, for defendant in error.

BLECKLEY, C.J. The contract, as alleged in the declaration, was that on the 27th of November, 1886, the defendant agreed to sell to the plaintiff 50 shares of the capital stock of the Georgia Railroad & Banking Company, at the price of $120 per share, and to deliver the same as soon as the defendant could come to the city of Augusta and make delivery of the certificate or certificates, and execute a power of attorney to transfer the same. The breach alleged is that on the 4th of December, 1886, the defendant refused to deliver the shares, though requested by the plaintiff to do so, notwithstanding the plaintiff offered, and was ready, to pay the price agreed on. The evidence shows that on the 1st of December a dividend of four dollars per share was declared by the corporation, and that on the 3d of December the defendant went to Augusta, and there offered to execute the required papers for transferring the shares according to contract. But the plaintiff's broker refused to pay for the stock and consummate the transaction, unless the defendant would also execute an order for the dividend. The defendant refused to execute this order, claiming that the dividend belonged to him.

Let it be conceded that the contract to sell was completed by what transpired previously to the time that the dividend was declared, and let it also be conceded that as an incident thereto the plaintiff was entitled to the dividend, as would appear to

had made with the plaintiff, through the broker, that he had not expressly or impliedly undertaken to execute when the contract was entered into. By endeavoring to introduce this new term into the contract, and by standing upon it as a condition of his own performance, he lost any right, not only to the dividend, but to the stock, which he would otherwise have had. He virtually rescinded the contract, by electing not to comply with it. The verdict was right in its effect, whatever errors may have been committed upon the trial. The following authorities tend to show that had the plaintiff complied on his part with the terms of the contract, and assuming that the contract had no infirmity by reason of the double agency of the broker, his right to the dividend would have resulted, as a legal incident. Black v. Homersham, L. R. 4 Exch. Div. 24; Harris v. Stevens, 7 N. H. 454; Mor. Priv. Corp. §§ 174178; 2 Add. Cont. § 661; Cook, Stocks, § 543. Judgment affirmed.

restrict itself in the exercise of the taxing pow1. While formerly the state could by contract er, a municipal corporation had no such capacity in respect to the taxing power committed to it.

2. The present case has no real complication resulting from covenant on the part of the city, but is governed by the ordinary rule as to interlocutory injunctions, and in denying an injunction there was no abuse of discretion.

(Syllabus by the Court.)

Error from superior court, Richmond county; RONEY, Judge.

Bryan Cumming, for plaintiff in error. J. S. Davidson and Foster & Lamar, for defendant in error.

be the case from the authorities cited below. Still, the broker, as representing the plaintiff, had no right to make the settlement of the claim to the dividend a condition of receiving the stock and paying for it. The defendant had not collected the dividend, as was done by the seller in Currie v. White, 45 N. Y. 822; and, if a right to it BLECKLEY, C. J. The Code (section 3220) passed to the plaintiff as an incident of his declares that the granting and continuing of purchase of the stock, the plaintiff could injunctions must always rest in the sound have collected it from the corporation with- discretion of the judge, according to the cirout an order from the defendant, either incumstances of each case. The judge having his own name or by using the defendant's refused an injunction in the present case, name, as holder of the formal, legal title, the sole question for our determination is for his (the plaintiff's) use. By giving time- whether in doing so he failed to exercise a ly notice to the corporation, any right, le- sound discretion, according to the circumgal or equitable, which he had in the divi- stances. It was insisted on the argument dend might have been protected. Conant that by the element of contract the case v. Bank, 1 Ohio St. 298. The broker, as rep- was taken out of the general rule. The resenting the plaintiff, had no right to ex- contract referred to was a covenant on the act the execution of a document, not con- part of the city, made in July, 1858, with the templated by either of the parties at the then owner of the property now taxed, or time the contract was entered into, as a some of it, not to exercise the taxing powcondition of payment for the stock, inas-er with reference to this property in a way much as transfer and payment were to be to burden it more than other property of a concurrent acts. He could very well claim, like kind in the city. If the covenant is to as he did, that the dividend belonged to be regarded as an attempt to limit or modthe plaintiff; but he could not make the set-ify the taxing power of the municipality, tlement of a dispute on that question a condition of completing the transaction, the completion of which was necessary to perfect the incidental right which he claimed. Thed efendant was no party to the declaring of the dividend, and the act of the corporation in declaring it cast upon him no duty to execute a paper in carrying out or

we think that, in the absence of express legislative authority to enter into it, the city had no power to make such a covenant. While, according to the decisions of the supreme court of the United States, the state itself could surrender or limit the taxing power in 1858, as to any specific property, we think it has never been held that a

Such ordinances were, however, allowable in Georgia prior to the constitution of 1877. Mayor v. Long, 54 Ga. 330; Waring v. Mayor, 60 Ga. 93. But we apprehend it never was within the power of a city to 4. The contract of sale embracing 30 car-loads bind itself by contract either to forbear to of corn in bulk, to be delivered on board by the impose taxes, or to impose them under cer-car-load at the point of destination, a defect of tain given limitations, or on certain condi- quality in some of the corn accepted and paid for tions. In other words, we think a munici- will not justify the buyer in rejecting 10 other carloads subsequently tendered according to the conpal government could not hedge in its legis- tract, neither of the parties electing or intending lative power by contract. State v. Rail- to rescind or abandon the contract in whole or in road Co., 75 Mo. 208; Mack v. Jones, 21 N. part. H. 393.

ent from that which was in fact made. | which ought to have been accepted, but This being so, the musty and "blue-eyed" were rejected without good cause. Whichcorn, packed beneath that which was ever party has the larger claim on this sound, should be classed, with reference to basis should prevail, when the case is tried the whole car-load, as a latent defect. The again, unless the evidence should be matedifference between patent and latent is that rially different from that which is now in one is open to observation by ordinary in- the record before us. spection, and the other is not.

6. When the broker who sold the 10 cars 3. It was not competent to vary the gen- was under cross-examination, it was comeral law of the state, raising a warranty in petent to ask him not only to disclose the favor of the purchasers, by showing a local amount of his commissions, but whether usage in Augusta operating upon the corn they had been paid or not. These commistrade, to the effect that the acceptance of sions were sued for in the action which corn in bulk, and paying for it after inspec- was on trial, and though they could be retion, were considered as waiving or releas- covered, if there was a real liability to pay ing all claim upon the seller to answer for them incurred by the plaintiffs below, the any defects of quality. Doubtless the cus- payment or non-payment might throw tom is binding upon those who have rec- light upon whether that liability was abognized it in their own transactions, and solute, or dependent upon a recovery in this thus adopted it for their own dealings, but case. If the witness, as broker, had an inpersons who have not done so are entitled terest in the recovery, that would go to his to stand upon the general law. Jones, credit. At all events, he was under crossCom. & Tr. Cont. 122, 123; Hatcher v. examination, and the right to sift is very Comer, 73 Ga. 418; Thompson v. Ashton, broad. 1 Thomp. Trials, § 406 et seq. The 14 Johns. 316; Barnard v. Kellogg, supra; court erred in not granting a new trial. Yates v. Pym, 6 Taunt. 446. A vigorous and learned opinion to the contrary was delivered in Snowden v. Warder, 3 Rawle, 101, in which case Chief Justice GIBSON dissented.

SMITH V. WRIGHTSVILLE & T. R. Co. (Supreme Court of Georgia. Nov. 18, 1889.) MASTER AND SERVANT · CONTRIBUTORY NEGLIGENCE-WRIt of Error-BILL OF EXCEPTIONS. 1. Where an employe of a railway, while enhand-car, was put in sudden apprehension of a dangerous collision with a locomotive approaching from an opposite direction, and the threatened collision was due alone to the negligence of the company, whether it was rash or reckless to leap from the car, or whether he should have remained upon it, or left it by means less hazardous than facts of the present case, to justify the granting of jumping, are questions not clear enough, under the a nonsuit. The allowance rightfully to be made for indiscreet conduct under excitement and alarm can better be determined by a jury than by the court.

4. A defect of quality in the 3 car-loads of corn did not, under the circumstances, entitle the purchasers to reject the 10 car-gaged in the performance of duty, in running a loads subsequently tendered, and found, upon inspection, to come up to the terms of the contract. The whole purchase embraced 30 car-loads, to be delivered in Augusta by installments, and these 10 were a part of the 30. Neither before nor after the defect was discovered in the 3 car-loads was there any intention on the part of the buyers or the sellers to abandon or rescind the contract. On the contrary, even after the 10 car-loads were rejected, both parties went forward in the performance of the contract, and its full performance on both 2. To avoid dismissing a writ of error because sides seems to have been completed. The it does not appear when the court adjourned, or that the bill of exceptions was certified within 30 right to rescind was neither claimed nor ex-days thereafter, time will be allowed, under section ercised as to any part of the contract. The 4272 of the Code, to perfect the transcript by obsubject will be found discussed with more taining the proper certificate from the clerk as to or less breadth in the following authori- the date of adjournment. ties: Leake, Cont. 654, 655; 2 Benj. Sales, 787, note 26; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. Rep. 12; 21 Amer. Law Reg. 398, notes; Cahen v. Platt, 69 N. Y. 348; notes to Gill v. Benjamin, 54 Amer. Rep. 624; Blackburn v. Reilly, 47 N. J. Law, 290,1 Atl. Rep. 27; Myer v. Wheeler, (Iowa,) 21 N. W. Rep. 692; Iron Co. v. Naylor, L. R. 9 App. Cas. 434. And see Refining Co. v. Oil Co., 74 Ga. 497. In the present case there was no fraud on the part of the sellers. The false packing was not their work, nor was it known to them. They had purchased the corn as they sold it, packed in the same cars.

3. In the absence of any suggestion that alterations appearing in the bill of exceptions were made fraudulently, or after the bill of exceptions was certified, they will generally be treated as having been made fairly, and before the certificate was signed by the judge. Upon a suggestion of fraud, or that the erasures, interlineations, etc., are of later origin, this court will, from inspection of the documents, or from inspection and other proper evidence, decide the question.

(Syllabus by the Court.)

Error from superior court, Johnson county; HINES, Judge.

W. R. Daly, J. M. Stubbs, and Harrison & Peeples, for plaintiff in error. A. F. Daly and O. H. Rogers, for defendant in

error.

5. With the law properly applied to the evidence in this case, as we understand it, the plaintiffs in error are entitled to recov- BLECKLEY, C.J. The plaintiff was in the er for the breach of warranty their dam-employment of the defendant as a" section ages, properly measured, for the defect in boss." He had control of a hand-car and quality of the damaged corn in the 3 cars of a company of workmen, a force of a which they accepted and paid for; and the dozen men. With himself and all the men defendants in error (the plaintiffs below) on board, he was proceeding, in the line of are entitled to recover their damages, his duty, upon the car, to reach a certain properly measured, for the refusal of the station at which a regular train was to purchasers to accept the 10 cars of corn pass him. He was not out of time, but was