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The Augusta and Summerville Railroad Company vs. Renz.

WARNER, Chief Justice.

The plaintiff brought his action against the defendant to recover damages for injuries sustained by him as a passenger whilst being transported on its road, in consequence of the alleged careless, negligent anil unskillful management of the defendant, its servants and agents, in operating its cars and coaches upon its said road, whereby he was thrown from its car and his arm broken, to his damage $5,000 00. On the trial of the case, the jury found a verdict for the plaintiff for the sum of $1,250 00. The defendant made a motion for a new trial, on the several grounds therein stated, and also made a motion in arrest of judgment, both of which motions were overruled, and the defendant excepted.

It appears from the evidence in the record that there was a short, steep curve in the defendant's road; that in passing it the driver of the car put whip to the horses drawing it, so as to enable them to surmount the steep curve with the loaded car, which was done so suddenly as to throw the plaintiff off the platform of the car, where he was standing, breaking his arm. The car was full of passengers, some standing on the platform; the plaintiff was standing on the platform of the car when the conductor received his fare.

1. The main question in the case was whether the evidence showed that the plaintiff was injured by the carelessness and negligence of the defendant in conducting its business as the carrier of passengers for hire on its road. The defendant made several requests of the court to charge the jury, which were refused, and instead thereof it charged the jury the law applicable to the facts of the case, as contained in the 3033d and 3031th sections of the Code. We find no error, in view of the evidence contained in the record, in the refusal of the court to charge as requested, or in the charge as given. The sections of the Code before cited enıbraced the correct principles of the law applicable to the facts in the case. There was no error in allowing the witnesses to testify that since the injury to the plaintiff the defendant had altered the curve in

The Augusta and Summerville Railroad Company vs. Renz. its road. The alteration was a fact which it was competent for the plaintiff to prove for the consideration of the jury, subject to be explained by the defendant why the alteration was made.

2. The standing on the platform of a street railroad car, drawn by animal power, is not such an exposure to danger by a passenger as the standing on the platform of a railroad car drawn by a locomotive operated by the power of steam, the more especially, as in this case, when there was no notice given not to stand there.

3. There was no error in overruling the defendant's motion in arrest of judgment. There was a cause of action set forth in the plaintiff's declaration, and though it may have been defectively set forth, it was cured by the verdict.

4. In view of the dependence of the people for travel, in the cities where street railroads have been established, by that mode of conveyance in going to church, visiting the sick, etc., we are not prepared to hold that the running of street railroads in cities and the vicinity thereof, where the same have been established, on Sunday, is not a work of necessity, as contemplated by the 4579th section of the Code, and that it is unlawful to run the same on that day.

The jury having found in favor of the plaintiff as to the question of negligence and carelessness on the part of the defendant, and as to the fault of the plaintiff, and there being no material errors in the rulings of the court as to the law applicable to the facts of the case, and there being sufficient evidence in the record to sustain the verdict we will not interfere with the exercise of the discretion of the court in overruling the motion for a new trial.

Let the judgment of the court below be affirmed.

Gause vs. Walker.

55 129 66 332

55 129 98 314

CHARLES W. GAUSE, plaintiff in error, vs. SAMUEL WALK

ER, executor, defendant in error.

1. Though a judgment de bonis testatoris be conclusive of assets against an

executor in a court of law, yet, on a proper case made, based on equitable principles, a court of equity will grant relief against a suit to make such

executor individually and personally liable thereon. 2. Where the bill in equity alleges that the assets were ample at the time the

judgment de bonis was rendered, and therefore the executor did not plead plene administravit præter, but that the assets, and only assets, which ever came to his hands were a life policy and certain lands in Texas, and that the life policy was compromised, and an open account paid out of the fund realized, by the consent and with the acquiescence of the creditor, and that the lands in Texas were, also, by his consent, administered in that state, and a sum much less than their estimated value realized therefrom, and the answer denies the allegation of acquiescence and consent, and such allegation is supported by the affidavit of a disinterested person, and the court grants an injunction restraining a suit at common law against the executor individually, this court will not control the discretion of the court below in granting the injunction.

Equity. Injunction. Administrators and executors. Pleadings. Before Judge BARTLETT. Baldwin county.

At Chambers. October 8th, 1875.

Reported in the opinion.
WILLIAM McKINLEY, for plaintiff in error.

CRAWFORD & WILLIAMSON, for defendant.

JACKSON, Judge.

Gause obtained a judgment de bonis testatoris against Walker as executor, Walker having filed no plea of plene administravit præter, or otherwise. Suit at common law was brought on this judgment to charge the executor individually, and pending that suit he, the executor, filed a bill of injunction praying to enjoin the common law suit on the ground that the judgment against him, at law, was conclusive, without a resort to equity; but that it would be inequitable to hold him individually bound, because at the time of such suit

Gause vs. Walker.

he held a life policy of $6,000 00 and twelve hundred acres of land in Texas, worth $1,800 00 more, at that time, by estimate, and which would have been more than enough to pay the entire debts of the testator; that these are all the assets which ever came to his hands, and that without fault on his part he has realized only about $3,800 00 on these assets; that the plaintiff, Gause, acquiesced in a settlement of the life policy, which resulted in the realization of only $3,300 00 from that source, and that by the instructions of Gause and the other creditors he was empowered to have the Texas lands administered there, and which was done, and these lands only realized $500 00; that thus the estate, without fault on his part, is unable to pay debts in full, but that he has paid Gause his full share. The answer denied the main charges in the bill, but the affidavits supported them. The court below granted the injunction, and the case is before us for review. The legal question is, will a court of equity grant relief after judgment against an executor de bonis testatoris, on a good case made? The judgment at law is conclusive of assets, and will a court of equity open it; first, in any case, and secondly, in the case made by the facts before recited.

1. The first point was decided by this court in the case of Furlow vs. Tillman, 21 Georgia Reports, 150. There the court says: “This court has no doubt that such a bill as the present, (the bill then before them,) may be filed after a judgment de bonis testatoris, against the administrator or executor. In Englanıl it would be a more serious question whether it could be filed before such a judgment;" thereby holding that in England it could be done after the judgment, and that in this state there could not be a doubt about it. It is true, that was a bill to marshal assets, but the principle is the same here as in that case.

2. The question then recurs, do the facts here make such a bill? We think, if true as alleged, that they do. The auswer denies them, but the affidavit supports the main fact of acquiescence by Gause in the action of the executor, and we think the whole case should be tried by the court on the

Estes vs. The State of Georgia. merits, and the facts found by a jury. At all events, we will not control the discretion of the court below in granting the injunction.

Judgment affirmed.

EDWARD E. Estes, plaintiff in error, vs. The STATE OF

GEORGIA, defendant in error.

Where an indictment contains two separate counts for offenses which may be

properly joined therein, the one for a higher grade, and the other for a lower grade, if of the same nature, connected with, and growing out of the same transaction, though the punishment for each grade may be different, and upon the trial the jury find a general verdict of guilty, the legal intendment of such a verdict is to find the defendant guilty of the highest grade charged.

Criminal law. Indictment. Before Judge McCuTCHEN, Whitfield Superior Court. April Term, 1875.

Reported in the decision.

Johnson & McCamy, for plaintiff in error.

A. T. HACKETT, solicitor general, for the state.

WARNER, Chief Justice.

The defendant was indicted for the (ffense of an “assault with intent to murder," and on the trial thereof the jury returned the following verdict: “We, the jury, find the defendant guilty, and recommend him to the mercy of the court." There were two counts in the indictment. The first count charged the defendant with the offense of an assault with intent to murder," by shooting a loaded pistol at one Henry Williams wilfully, feloniously, and of his malice aforethought, with intent him the said Henry Williams to kill and murder. The second count in the indictment charged the defendant with the offense of "sliooting at another." The

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