and making additional averments, which do not affect the case, in the view we have taken of it.

The prayer of the plaintiffs is that they may have clouds which they aver rest upon their title removed, and that they may be quieted in the enjoyment and possession of the land in controversy; and, to entitle them to this relief, they must show in themselves the complete title to, and possession of, it. That this is the established law cannot be controverted.

"The jurisdiction of courts of equity to remove clouds from title is well settled; the relief being granted on the principle quia timet, that is, that the deed or other instrument or proceeding constituting the cloud may be used to injuriously or vexatiously embarrass or affect a plaintiff's title. Whether or not the jurisdiction will be exercised, depends upon the fact that the estate or interest to be protected is equitable in its nature, or that the remedies at law are inadequate where the estate or interest is legal; a party being left to his legal remedy where his estate or interest is legal in its nature, and full and complete justice can thereby be done." 3 Pom. Eq. Jur. §§ 1398, 1399.

In Orton v. Smith, 18 How. 263, Justice Grier says: "Those only who have a clear, legal, and equitable title to land, with possession, have right to claim the interference of a court of equity to give them peace, or dissipate a cloud on the title."

Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. 1129, reaffirms this doctrine, and further says: "A person out of possession cannot maintain such a bill, whether his title is legal or equitable; for, if his title is legal, his remedy at law, by action of ejectment, is plain, adequate, and complete, and, if his ti tle is equitable, he must acquire the legal title, and then bring ejectment." In U. S. v. Wilson, 118 U. S. 86, 6 Sup. Ct. 991, the same doctrine is stated and emphasized.

In Otey v. Stuart, 91 Va. 714, 22 S. E. 513, Judge Buchanan, delivering the opinion of the court, says: "A court of equity, as a general rule, in the absence of statutory authority, does not entertain a bill of this character, if the party filing it claims to be the owner of the legal title, unless he is in possession of the land upon which the cloud rests. The Jurisdiction exercised by courts of equity in this class of cases is founded upon the theory that the party making it has no adequate remedy at law for the injury of which he complains. If he is out of possession, and is the owner of the legal title, he has ordinarily a complete remedy at law by an action of ejectment." See, also, Carroll v. Brown, 28 Grat. 791, and Stearns v. Harman, 80 Va. 48.

It may be conceded, for argument's sake, and only for that purpose, that appellants have shown the legal title in themselves; yet their case must fail, for the evidence of their

possession is wholly insufficient. All that appears upon the subject is to be found in the deposition of one of the plaintiffs, Henry S. Kane, who says that his father "had tenants upon these lands before his death, which occurred in 1876, and that his heirs have had tenants upon the Purcell survey, and also a tenant upon the Wolcott survey, as shown by a written agreement filed in this case." The lands in dispute are embraced within the Wolcott survey, and there is a written agreement by which a portion thereof was rented by appellants to a tenant, but the evidence is conclusive that no possession was ever taken under the lease. We may safely say, therefore, that there is no evidence whatever of possession in the appellants.

We find it unnecessary, therefore, to consider the many questions so ably argued by counsel; for, as a court of equity has no jurisdiction over the subject-matter of the controversy, it would be manifestly improper for us to express any opinion with respect to them. This sufficiently disposes of the case presented by the appellants, so far as it affects the Virginia Coal & Iron Company.

Patrick Hagan is made a party defendant to the bill, and there is a very elaborate statement of facts and circumstances intended to show that he was guilty of a fraud upon the plaintiffs. If the plaintiffs have a case against him, it could have been asserted at law. There is in the case no fact or circumstance which could give a court of equity jurisdiction, save and except the charge of fraud. As was said in the case of Green v. Spaulding, 76 Va. 416: "It is true that to give relief in cases of fraud is one of the elementary grounds of jurisdiction of courts of equity. I do not understand, however, it is thereby meant that this jurisdiction extends to all possible cases in which the commission of a fraud may be involved. Where the party can have as effectual and complete a remedy in the courts of common law as in equity, and that remedy is direct, certain, and adequate, there can be no just ground for a resort to the equitable forum."

In Buck v. Ward (decided at this term) 33 S. E. 513, the jurisdiction of a court of equity was invoked upon the sole ground that the defendant had been guilty of a fraud upon the plaintiff, but the court said (Judge Cardwell delivering the opinion): "There is no deed to be vacated; no impediment to be removed out of the way of the complainants in the enforcement of their remedy, if any they have, at law. The bill, upon its face, calls for no relief that can be afforded complainants, other than a decree for specific sums of money." And the bill in that case was dismissed upon demurrer.

It is sought to distinguish the case under consideration from that, because there the record shows the specific sums demanded by the complainant, while here it is argued that

the facts are peculiarly within the breast of the defendant Hagan. If that be so, a prayer for discovery might, perhaps, have conferred jurisdiction upon the court; but to that the plaintiffs did not see fit to resort. The bill, therefore, as to Hagan, stands naked of any element of equity, save the recital of facts constituting what the plaintiffs allege was a fraud upon their rights.

Upon the whole case, we are of opinion that a court of equity was without jurisdiction as to any of the defendants, and the decree of the circuit court must be affirmed.

BUCHANAN, J., absent, having been counsel in lower court.

(107 Ga. 682)

TOLER v. STATE.

(Supreme Court of Georgia. March 15, 1899.) CRIMINAL LAW-INSTRUCTIONS-CIRCUMSTANTIAL EVIDENCE.

While the failure of the court upon a criminal trial in which the evidence against the accused is entirely circumstantial to instruct the jury concerning the rule applicable to evidence of this character would, in a close or doubtful case, be cause for a new trial, such failure will not require another trial when the guilt of the accused is clearly and convincingly proved, and the charge as to the amount and character of proof requisite to a lawful conviction is such as to leave no room for doubt that the verdict would have been the same even if the court had, in terms, stated to the jury that in order to warrant a verdict of guilty the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis.

LUMPKIN, P. J. The plaintiff in error was convicted of burglary, and moved for a new trial. The only special ground of his motion argued here was one complaining of the court's omission to instruct the jury upon the law of circumstantial evidence. The record discloses that the evidence upon which the conviction was had was entirely circumstantial. This court, in Hamilton v. State, 96 Ga. 301, 22 S. E. 528, held that in cases of this character it was the duty of the judge, whether so requested or not, to state to the jury the law with regard to circumstantial evidence. In the opinion it was said that a failure to do this would, in a close or doubtful case, entitle the accused to a new trial. It by no means follows, however, that such failure will require a new trial where the guilt of the accused is clearly and convincingly proved, and where the charge of the court as to the amount and character of proof requisite to a lawful conviction is such as to leave no room for doubt that the verdict would have been the

same even if the court had, in terms, stated to the jury the technical rule relating to circumstantial evidence. In Barrow v. State, 80 Ga. 191, 5 S. E. 64, it was ruled that the failure of the court "to give in charge, especially, the law as to circumstantial evidence, there being no request to this effect, constitutes no ground for a new trial, when it appears that the court did very fully, and liberally to the defendant, instruct the jury as to the law of reasonable doubts, and the amount and character of testimony necessary to warrant a conviction." In the case now before us the guilt of the accused was well established, and the charge was very full and fair. In one place the court even instructed the jury that, if they had "any doubt" of the guilt of the accused, they ought not to convict him. We are fully satisfied, after a careful reading of the evidence and an examination of the instructions given to the jury, that the result would and ought to have been the same even if the court had, in terms, stated to the jury that in order to warrant a conviction the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis. This being so, we do not think it would be right to reverse the judgment and order a new trial. We are convinced that exact justice has already been done, and that, to all intents and purposes, the accused had a fair and impartial trial. Judgment affirmed. All the justices concurring.

(108 Ga. 774)

CRAYTON v. STATE. (Supreme Court of Georgia. April 19, 1899.) CRIMINAL LAW-APPEAL-NEW TRIAL.

The record disclosing that there was sufficient evidence to warrant the jury in convicting the accused, and there being no complaint that any error of law was committed, the judgment overruling the motion for a new trial, embracing only the general grounds that the verdict was contrary to law and the evidence, will not be disturbed by the supreme court.

(Syllabus by the Court.)

Error from superior court, Sumter county; Z. A. Littlejohn, Judge.

George Crayton was convicted of crime, and brings error. Affirmed.

J. R. Williams, for plaintiff in error. F. A. Hooper, Sol. Gen., for the State.

PER CURIAM. Judgment affirmed.

(105 Ga. 487)

HIGH et al. v. CANDLER. (Supreme Court of Georgia. July 28, 1898.) APPEAL-JURISDICTION-BILL OF EXCEP

TIONS.

This court has no jurisdiction to entertain or pass upon assignments of error in a copy bill of exceptions, when the record affirmatively discloses that the order purporting to establish such copy was, over the objection of the defendant in error, granted at chambers by a judge who, because of his disqualification, did not pre

GIVENS v. STATE. (Supreme Court of Georgia. March 15, 1899.) RIOT-INDICTMENT.

As against a motion to quash, in the nature of a general demurrer, the indictment sufficiently charged the offense of riot. The evidence authorized the verdict, and the rulings complained of, even if erroneous, were not of such a character as to require the granting of a new trial. (Syllabus by the Court.)

Error from city court of Gwinnett; S. J. Winn, Judge.

Sam Givens was convicted of riot, and brings error. Affirmed.

R. W. Peeples and Oscar Brown, for plaintiff in error. F. F. Juhan, for the State.

PER CURIAM. Judgment affirmed.

(108 Ga. 770)

GIVENS v. STATE. (Supreme Court of Georgia. March 15, 1899.) CRIMINAL LAW-APPEAL.

This case is controlled by the decision this day rendered in the case of Givens v. State, supra.

(Syllabus by the Court.)

Error from city court of Gwinnett; S. J. Winn, Judge.

Jim Givens was convicted of crime, and brings error. Affirmed.

R. W. Peeples and Oscar Brown, for plaintiff in error. F. F. Juhan, for the State.

PER CURIAM. Judgment affirmed.

(107 Ga. 666)

WOMBLE v. STATE (Supreme Court of Georgia. March 15, 1899.) CRIMINAL LAW-NEW TRIAL-FORGERY-EVIDENCE-VENUE-NEWLY-DISCOVERED EVIDENCE.

1. No question as to the legal sufficiency of an indictment can be properly raised in a motion for a new trial.

2. There was, on the trial of an indictment charging that the accused forged an assignment on the back of a promissory note, no error in admitting in evidence an original note, with an assignment thereon, corresponding with the instrument described in the indictment, when there was positive proof of the execution by the accused of the note tendered in evidence, and also testimony tending to show that he forged the name of the person purporting to have been signed to the assignment on the back thereof. (a) The above is true though it be alleged in the motion for a new trial that the note was tendered in evidence solely "for the purpose of proving the venue," and that it "did not show where the assignment on the said note was made."

3. When all of the evidence introduced on the trial of a criminal case strongly and decidedly tended to show that the offense was committed in the county where the trial was had, and there was no evidence warranting even a bare conjecture that it was committed elsewhere, it will be held that the venue was sufficiently proved.

4. Proof of the uttering of a forged instrument, in connection with testimony pointing directly to the accused as the author and sole beneficiary of the forgery, will, when there is no evidence suggesting that the forging was done by another, support a conclusion that the accused was the forger.

5. Newly-discovered evidence, the only effect of which would be to impeach a witness, is not cause for a new trial, when it is manifest that by the exercise of even a slight degree of diligence the evidence in question might have been produced at the trial.

(Syllabus by the Court.)

Error from superior court, Upson county; E. J. Reagan, Judge.

Abner Womble was convicted of forgery, and brings error. Affirmed.

M. D. Womble and M. H. Sandwick, for plaintiff in error. O. H. B. Bloodworth, Sol Gen., for the State.

LUMPKIN, P. J. 1. This was an indictment charging Abner Womble with the forgery of an assignment upon the back of a promissory note executed by him, and payable to Elisabeth Johnson; the same being an assignment to R. A. Matthews & Co., purporting to have been signed by the payee of the note. There was no demurrer to the indictment, but in one ground of the motion for a new trial filed by the accused after his conviction it was alleged generally, without stating in what respect the indictment was defective, that the same was insufficient in law. Manifestly, this is not the proper method of attacking an indictment.

2. It appeared on the trial that Womble executed a promissory note for $45, payable to Elisabeth Johnson, of whom he was a tenant; that he took this note to Matthews & Co., who were merchants, and they promised to advance him supplies upon the same if he would procure Mrs. Johnson to sign a printed

form of transfer on the back of the note in the following words: "For value received, I hereby assign and indorse the within landlord lien and mortgage to R. A. Matthews & Company, and I guaranty the payment of the within lien and mortgage, and hereby waive my claim for rent until this debt is paid, waiving all statutory exemptions as to this debt." It was further shown that Womble went off with the note; that subsequently it came into the possession of Matthews & Co., with the name of Mrs. Johnson written beneath the printed words above quoted; and that upon the faith thereof they advanced supplies to Womble. She testified positively that she neither herself signed her name to the assignment, nor authorized any one to do so for her. It does not affirmatively appear that Womble himself brought back the note and delivered it to Matthews & Co., or how it came into their possession after the name of Mrs. Johnson was affixed to the assignment on the back thereof. It does appear, however, that, before obtaining goods upon the note, Womble had signed his own name to another printed form on the back of the note, in the following words: "I consent and agree to the above transfer and assignment, and hereby attorn to R. A. Matthews & Company, as my landlords." This printed form immediately followed the assignment to which Mrs. Johnson's name was written. Considered as a whole, the evidence points to no other conclusion except that Womble himself delivered the note to these merchants, and procured supplies on the faith thereof. During the progress of the trial, an original promissory note, answering to the description above set forth, was admitted in evidence over the objection of counsel for the accused. The motion for a new trial recites that this note was tendered solely for the purpose of proving the venue, and the objection to its admission was that it did not show where the name of Mrs. Johnson was affixed to the assignment appearing on the back thereof. It is inexplicable why this instrument should have been offered for the one purpose stated; but, be this as it may, the note, with the entries thereon, was clearly admissible, as having a direct bearing upon the issue involved in the case. We will not, therefore, reverse the judgment merely because the court, as the plaintiff in error insists, admitted this evidence upon a mistaken idea of its materiality concerning the question of venue. Moreover, as will presently appear, it did in fact have a slight bearing upon that question. It is proper to state further, in this connection, that the execution of the note itself by Womble was unequivocally shown. This fact, and the circumstantial evidence tending to show that he forged the name of Mrs. Johnson to the assignment, were certainly enough to render the paper admissible in evidence.

3. It appeared that Mrs. Johnson resided in Upson county, that Womble was a tenant living upon a portion of her land, and the note above mentioned began with the words, "Thomaston, Upson Co., Feb. 2nd, 1897." It was further shown that Matthews & Co. were merchants doing business in Thomaston. It will thus be seen that all the evidence relating to the venue tends to show that the offense charged against the accused, if committed at all, was committed in the county of Upson. There was no evidence in the slightest degree tending to show that it was committed elsewhere. We therefore think the venue was sufficiently established. In this connection, see Johnson v. State, 62 Ga. 299, and Smiley v. State, 66 Ga. 754.

4. As will have been seen from what is said above, Womble executed the note to which reference has been made, and attempted to procure credit upon the faith of it. Subsequently, according to the undisputed evidence, Mrs. Johnson's name was forged by some one to the assignment on the back of the note. He thereafter obtained goods on the faith of this instrument, and thus became the sole beneficiary of the forgery. There is in the record no proof in the slightest degree indicating that any one else committed the forgery, or had an opportunity to do so. While, as above stated, there was no direct and positive evidence that Womble, after the forgery had been committed, himself delivered the paper to Matthews & Co., all the circumstances point with conclusive and almost unerring certainty to him as the person who did so. We are therefore of the opinion that the evidence, as a whole, warranted the verdict of guilty. The case, in many respects, is similar to that of Shope v. State (Ga.) 32 S. E. 140.

5. The accused also insisted that he was entitled to a new trial because of newly-discovered evidence, and, in support of this ground of his motion for a new trial, offered an affidavit of Mrs. N. V. Dickerson to the effect that Mrs. Johnson had admitted to the affiant authorizing Miss Clemmie Johnson to sign the name of Mrs. Johnson to the assignment on the back of the note in question. It appears, however, that Womble must have known before his trial what Mrs. Dickerson would swear in this respect, for he moved to continue the case on account of her absence. We are therefore constrained to hold that the ground of the motion relating to newly-discovered evidence would not authorize the granting of a new trial. The alleged newlydiscovered evidence was of an impeaching character, and doubtless could have been produced at the trial by the exercise of proper diligence. If the court erred in not granting the continuance asked, this should have been made a distinct ground of exception. Judgment affirmed. All the justices concurring.

(108 Ga. 770)

COOK v. STATE. (Supreme Court of Georgia. March 15, 1899.) CRIMINAL LAW-NEW TRIAL-AMENDMENT OF

MOTION.

1. Where, to a motion for new trial made by the accused in a criminal case, an amendment was offered adding a new ground to the motion, based upon newly-discovered evidence, which was rejected by the court because the affidavits in support thereof were executed before a commercial notary public, who was also at the time attorney for the movant, and on the further ground that the newly-discovered evidence was cumulative and impeaching in its character, even if, technically speaking, the amendment should have been allowed, this court will not grant a new trial on that ground, when it appears from the affidavits themselves, in the record, that, had the amendment been allowed, it would not have afforded cause for granting a new trial on the ground therein set up.

2. There being no error of law committed, and the verdict being sustained by the evidence, the judge did not err in overruling the motion for a new trial.

(Syllabus by the Court.)

Error from superior court, Telfair county; C. C. Smith, Judge.

William Cook was convicted of crime, and brings error. Affirmed.

D. C. McLennon, for plaintiff in error. John F. De Lacy, Sol. Gen., for the State.

PER CURIAM. Judgment affirmed.

(108 Ga. 772)

EMANUEL et al. v. STATE. (Supreme Court of Georgia. April 17, 1899.) CRIMINAL LAW-APPEAL-REVIEW.

No error of law is complained of, and the evidence was sufficient to authorize the verdict.

(Syllabus by the Court.)

Error from superior court, Sumter county; Z. A. Littlejohn, Judge.

Ann Emanuel and O. Walker were convicted of crime, and bring error. Affirmed. J. R. Williams, for plaintiff in error. F. A. Hooper, Sol. Gen., for the State.

PER CURIAM. Judgment affirmed.

(108 Ga. 772)

GAINES v. STATE. (Supreme Court of Georgia. April 17, 1899.) CRIMINAL LAW-APPEAL-ASSAULT WITH INTENT TO KILL-INDICTMENT-EVIDENCE. 1. The overruling of a demurrer to an indictment and the refusal to arrest a judgment are not grounds for a new trial. This court cannot consider error assigned on such rulings in a bill of exceptions presented to the judge more than 20 days after the rendition of the judg ments complained of. Watson v. State, 64 Ga. 61; Stokes v. State, 10 S. E. 740, 84 Ga. 258.

2. Where an indictment for assault with intent to murder charges that the defendant, "with malice aforethought and without provocation, did point, aim, and discharge a certain pis

tol, the same being a weapon likely to produce death, at and into a crowd of people assembled, then and there being in the peace of the state,' and thereby wounded a named person, it sufficiently includes, by such descriptive words, the offense of unlawfully shooting at another. Jenkins v. State, 17 S. E. 693, 92 Ga. 470; Wostenholms v. State, 70 Ga. 720.

3. The declaration of the person wounded in such a case, to the effect that he was shot, made immediately after the firing of the pistol, is admissible in evidence as part of the res gestæ. 4. There was sufficient evidence to support the verdict.

(Syllabus by the Court.)

Error from superior court, Sumter county; Z. A. Littlejohn, Judge.

Randall Gaines was convicted of crime, and brings error. Affirmed.

L. J. Blalock and J. N. Scarborough, for plaintiff in error. F. A. Hooper, Sol. Gen., for the State.

PER CURIAM. Judgment affirmed.

(108 Ga. 771)

KEYS v. STATE. (Supreme Court of Georgia. April 17, 1899.) CRIMINAL LAW-REVIEW-APPEAL.

There was in the present case no evidence to warrant a conviction of the offense charged, and consequently the court erred in denying a new trial.

(Syllabus by the Court.)

Error from superior court, Catoosa county; A. W. Fite, Judge.

J. M. Keys was convicted of crime, and brings error. Reversed.

W. E. Mann, for plaintiff in error. Sam P. Maddox, Sol. Gen., and A. S. Johnson, for the State.

PER CURIAM. Judgment reversed.

(108 Ga. 773)

COCHRAN et al. v. STATE. (Supreme Court of Georgia. April 17, 1899.) CRIMINAL LAW-APPEAL-NEW TRIAL.

1. The evidence was amply sufficient, both as to venue and as to the guilt of the accused.

2. It does not, after a careful examination of all the evidence, pro and con, relating to the ground of the motion for a new trial based on newly-discovered evidence, appear that the court erred in adjudging that this ground was without merit.

(Syllabus by the Court.)

Error from superior court, Morgan county; John C. Hart, Judge.

W. M. Cochran and J. W. Crow were convicted of crime, and bring error. Affirmed.

George & George, for plaintiffs in error. H. G. Lewis, Sol. Gen., and Foster & Butler, for the State.

PER CURIAM. Judgment affirmed.