Rowland vs. Harris. that the court erred in charging the jury, "that if there was another note, and there was an agreement that the first note was not to be paid, and the note sued on was given in lieu of said first note, and there was no consideration proved, then there was no consideration to support the note sued on, and plaintiff cannot recover," and on the further ground that the verdict is contrary to the evidence and without evidence to support it. The court refused to grant the new trial, and plaintiff excepted, and the question is, was there evidence to authorize the charge and sustain the verdict? We are constrained to say that we think there is not enough in the record presented to us. What other circumstances may be adduced on another trial, how far the defendant may then strengthen her case, we cannot, of course, pretend to foresee; but the sole testimony on which she relies here to destroy the whole tenor and effect of this negotiable paper which shows consideration on its face, is that of Mr. Walker, who only testifies that as far as he knows the note was without consideration. He to say that the defendant, his daughter, had no property except what he bought at the sale of her first husband's, Mr. Rowland, effects, and knows of nothing she could have got for this note; that he gave a $1,000 00 note to testatrix for money borrowed from her when he bought her son's (the husband of his daughter) property; that she agreed to give him up this note, if he would make the deed to his daughter, with power to dispose of the property, $5,000 00 or $6,000 00 worth, by will, thinking that thereby her son might be reclaimed from dissipated habits; that this was done, and, his note sent him by Mrs. Rowland, the testatrix, and canceled; but he does not swear that the note sued on was taken in lieu of this one thus taken up, nor is there any evidence in this record to that effect. On the whole, the evidence is not sufficient as it stands to authorize the charge or the verdict, and we feel constrained to reverse the judgment on the ground that the court below should have granted the new trial. Judgment reversed. goes on Miller vs. The Southwestern Railroad Company. JAMES T. MILLER, administrator, plaintiff in error, vs. THE JOHN LOVETTE, administrator, plaintiff in error, vs. THE (JACKSON, Judge, having been of counsel, did not preside in these cases.) The Code limits the right to recover for the homicide of another to the widow or children of the deceased, omitting the words, contained in the act of 1856, "if no child or children, it shall vest in his legal representative." This court is bound to presume that such words were intentionally omitted, and the right of action thereby given no longer exists. Actions. Torts. Homicide. Before Judge HILL. Bibb Superior Court. October Adjourned Term, 1874. The two cases above stated were argued and determined together. Reported in the decision. WOOTEN & SIMMONS, for plaintiffs in error. R. F. LYON, for defendant. WARNER, Chief Justice. This was an action brought by the plaintiff, as administrator of William M. Miller, deceased, against the defendant, to recover damages for the alleged homicide of the plaintiff's intestate, by the negligent running of its engine and cars upon its road. The defendant demurred to the plaintiff's declaration. The court sustained the demurrer and dismissed the plaintiff's action, whereupon the plaintiff excepted. The only question presented for our consideration and judgment is, whether that part of the 4th section of the actof 1856, which provides that if any one shall be killed by the carelessness, negligence or improper conduct of any railroad company, their officers, agents or employees, by the running of the cars or engines of any of said companies, when there is no Miller vs. The Southwestern Railroad Company. widow, child or children, the right of action to recover damages was vested in the legal representative of the party killed, is superseded by the 2971st section of the Code. That section of the Code declares that a widow, or if no widow, a child or children, may recover for the homicide of the husband or parent, and if suit be brought by the widow or children, and the former, or one of the latter dies, pending the action, the same shall survive in the first case to the children, and in the latter case to the surviving child or children. When the legislature, by the enactments in the Code, has undertaken to deal with the subject matter of prior statutes, and either alters or modifies the same, the law, as declared in the Code, will be considered as the latest expression of the legistive will in relation to that subject matter upon which it has acted. In providing in the Code who might recover damages for the homicide of another, it is limited to the widow and children of the husband or parent; the words in the act of 1856, "if no child or children, it shall vest in his legal representative," are omitted, and as the legislature, in adopting the 2971st section, as it is found in the Code, were dealing with the same subject matter as contained in the 4th section of the act of 1856, we are bound to presume that the words "if no child or children, it shall vest in his legal representative," were intentionally omitted. In view of the previous rulings of this court in the case of the Georgia Railroad Company vs. Wynn, 42d Georgia Reports, 331, and in the case of Allen vs. The Atlanta Street Railroad Company, decided at the present term, the question in the record now before us can hardly be said to be open for discussion here. The case of Lovette, administrator, vs. The Southwestern Railroad Company, involving the same question, was argued together with the case of Miller, administrator, against the same defendant. Let the judgment of the court below, in both cases, be affirmed. Gwinn vs. Smith. RICHARD GWINN, plaintiff in error, vs. J. J. SMITH, defend ant in error. 1. Where the fact exists in the knowledge of the levying officer, that there 3. A mortgagee may purchase the mortgaged land sold under a tax execution, 4. Where, in such case, the mortgagor has had the land set apart as a home- Return. Execution. Practice in the Supreme Court. Taxes. Reported in the opinion. B. P. HOLLIS; DUPONT GUERRY, for plaintiff in error. N. A. SMITH, for defendant. JACKSON, Judge. Gwinn obtained against Mitchell a judgment, founded on a debt prior to the constitution of 1868, dated in March, 1871. The execution issued thereon was levied on the 24th of May, 1873, upon a tract of land claimed by Smith. On the trial of this claim, plaintiff introduced his execution, and showed possession in the defendant, Mitchell, since the date of the judgment, and a deed from Mitchell and wife to the claimant 55 145 57 476 68 588 Gwinn vs. Smith. bearing date the 4th of February, 1873, also since the judgment, and thereupon closed his case The claimant introduced a tax execution against Mitchell, dated the 27th of January, 1872, with a levy upon the land in dispute thereon, and deed from the sheriff, dated the 6th of August, 1872. He also introduced papers showing a homestead set apart to defendant, and proceedings in chancery showing the appointment of defendant as trustee for wife and children, and authority to mortgage the land to claimant, granted by the chancellor, and the mortgage dated the 12th of March, 1872. Claimant also showed that the sale was fair, and explained that he took the deed from Mitchell and wife to settle the mortgage, and to remove the homestead cloud from his title. 1, 2. It was objected to the introduction of the tax execution that the court had permitted the levying officer to make the entry of "no personal property," after its levy and at the last term of the court; and this is the first error assigned. We think the entry nunc pro tune was properly allowed by the court. It was so expressly ruled by this court in the case of Hopkins vs. Burch, 3d Kelly, 222. Besides, the entry should have been excepted to when made under the order at the preceding term: Code, section 4254. 3. The court charged the jury that the claimant got a good title from the sheriff, under the sale for taxes, unless fraud and collusion between him and the defendant appeared from the evidence; and this is the second error assigned. We see no error in the charge, nor in the third and last assignment that the verdict is against the law and the testimony. The mortgagee had as much right as any other person. to buy at the sale of the land for taxes, and the tax execution being older than his mortgage, he bought the entire title in that case, even if he would not have done so in any event. My own opinion is, that he would have bought the whole title subject to the mortgage lien, which was his own, whether the tax fi. fa. was older or younger than his mortgage, because, in Georgia the title never passes to the mortgagee, but remains in the mortgagor, the mortgage being a mere security for a debt. |