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Mayor, etc., of Milledgeville vs. Cooley. 1, 2. We think, taking the facts for true, which the demurrer and plea admit, no proof having been introduced on either side that the case comes within the exception. The declaration, though loosely and imperfectly drawn, makes a case of fraud, of moral, and therefore, we think, corrupt fraud; and if the specifications be not technically and precisely drawn, a special demurrer would have the effect of making them so, or of giving the plaintiff an opportunity of making them so by amendment. On the whole, we think the case had better be tried on its merits. If the allegations cannot be sustained by proof, the defendant will not be hurt; if it be true that he did not really invest his ward's money in Confederate bonds, but used and enjoyed it himself, and only pretended so to invest it in order to cover up the fraud, then he ought to be hurt.

Of course in this opinion, we base our juilgment purely upon the facts alleged, which the general demurrer and plea ailmit to be true. The real facts, when proven on the trial, may make a case totally unlike that which this record discloses.

Let the judgment be reversed.

MAYOR AND ALDERMEN OF THE CITY OF MILLEDGEVILLE

plaintiffs in error, vs. John COOLEY, defendant in error.

55 19 66 309 75 661

1. A municipal corporation is bound to keep its streets and sidewalks in a

safe condition for travel in the ordinary modes, by night as well as by day,

and in case of failure to do so, it is liable for damages resulting therefrom. 2. Upon the trial of an action against a municipal corporation for damages

resulting from a failure to keep one of its streets in repair, evidence of a want of means with which to keep the same in repair without detriment to more important streets, was irrelevant.

Municipal corporations. Streets. Evidence. Before Judge BARTLETT. Baldwin Superior Court. February Term,

Mayor, etc., of Milledgeville vs. Cooley.

Upon the trial of this case the defendants proposed to show by Lyman H. Compton, one of the aldermen, and by the introduction of the city tax digest, that with the means at the command of the city authorities, it was impossible to keep the street in repair, in which the injury occurrel, without neglecting more important streets. This evidence was excluded, and such ruling was made one of the grounds of the motion for new trial.

For the remaining facts, see the decision.
BARROW & BARROW, by brief, for plaintiffs in error.

SANFORD & FURMAN; J. W. PRESTON, for defendant.

WARNER, Chief Justice.

The plaintiff brought his action against the defendant to recover damages sustained by him in falling into a deep ditch or gully across one of the public streets of the city, which the defendant wilfully allowed to remain there, of the depth of fifteen feet; that the defendant, in walking along said street in the night time, fell into said ditch or gully and broke his arm. On the trial of the case, the jury found a verdict in favor of the plaintiff for the sum of $400 00. The defendant made a motion for a new trial on the several grounds therein set forth, which was overruled by the court, and the defendant excepted.

1. It appears from the evilence in the record that the gully across the street had been there for some time, and must have been known to the defendant; that it was from three to fifteen feet deep; about four feet deep where the plaintiff fell into it and broke his arm; that it was a dark, rainy night, and plaintiff was unacquainted with the street. It is a general rule of law that a municipal corporation is bound to keep its streets and sidewalks in a safe condition for travel, in the ordinary modes, by night as well as by day; and if it fail to do so, it is liable for damages for injuries sustained in consequence of such failure: The City of Atlanta vs. Perdue, 53 Georgia, 607.

Cherry vs. The Home Building and Loan Association.

2. There was no error in ruling out the evidence of Compton, as set forth in the record, or in rejecting the tax digest of the city, inasmuch as that evidence was not relevant to the issue on trial before the court. The jury were the proper judges as to the condition of the defendant's street, as well as of the fault of the plaintiff at the time he was hurt, under the evidence before them; and they having found a verilict in favor of the plaintiff, we will not control the discretion of the court in refusing to disturb it, in view of the evidence contained in the record.

Let the judgment of the court below be affirmed.

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WILLIAM A. CHERRY, plaintiff in error, vs. THE HOME

BUILDING AND LOAN ASSOCIATION, defendant in error.

A defendant who has moved to open a judgment against him may dismiss his

motion after the judge has announced orally his purpose to grant the motion. At that stage of the proceeding, the movant may decline to accept a decision in his favor, whether he would be bound by one against him or not,

Practice in the Superior Court. Before Judge Hill, Bibb Superior Court. October Adjourneul Term, 1874.

Cherry moved to set aside five judgments of foreclosure of mortgages rendered against him in favor of the Home Building and Loan Association, pon the ground that the rules nisi in such cases did not call upon him to pay into court any specific sumr of money, but only the principal, interest and installments due in accordance with the charter and by-laws of said association; that not baving any defense to the payment of that amount, he did not answer said rules nisi; that thereupon, by reason of an illegal and mistaken construction of said charter and by-laws, rules absolute were taken for more than treble the sum really due.

This qnestion was argued, but a decision was postponed in

Cherry vs. The Home Building and Loan Association.

order to enable the court to discover whether the matter complained of could not be remedied by writing off a portion of the various amounts for which the rules absolute were rendered. To this end reference was made to an auditor to ascertain what was really due upon the several mortgages. Upon his report coming in, the court announced orally that he should order the rules absolute opened. After this announcement, but before it had been reduced to writing, counsel for Cherry moved to dismiss their motion. This the court refused to permit, and to this ruling exception was taken.

WHITTLE & GUSTIN, for plaintiff in error.

LANIER & ANDERSON, HILL & HARRIS, for defendant.

BLECKLEY, Judge.

If the decision, foreshadowed by the court, haid been one in denial of the motion, perhaps it would have been too late to withdraw; but we do not see why a victory may not be declined in the

very

moment of success. Men do not always know what to pray for; and when they see that an ilí chosen petition is about to be granted, to be obliged to persevere in it and accept the boon, whether they will or not, would be a strict rule of practice. It would seem that they ought to be allowed to drop their suit and quit the court-taxed only with the costs. Judgment on the motion was still in the future; it was not actually rendered; the juilge simply announcedl, orally, that he should order the rule absolute opened ; he passed no order. The case is not like that of a verdict made up and signed: 7 Georgia, 191 ; 34 Ibid., 572; 48 Ibid., 592. It may be, tno, that even a verdict, wholly in the plaintiff's favor for all bis demand, would be no bar to a dismissal of the suit until after entry on the minutes, or perhaps until after the signing of judgment thereon: Code, section 3447.

Judgment reversed.

Branch, Sons & Company vs. DuBose et al.

55 76 776

21 58 63

BRANCH, Sons & COMPANY, plaintiffs in error, vs. SUSAN

DuBose et al., defendants in error. 1. A continuance will not be granted because counsel is surprised at the tes

timony of his adversary, and because other testimony, by interrogatories sued out by the opposing party have not arrived, though the counsel state in his place that he expects to show by the other witness of the opposing party contradictory evidence to that proven by the witness who surprised

him. 2. Testimony to the effect that an arrangement was made in 1871, by which

a certain part of a crop was to go to the landlord, which was known to the factors who received the crop from the tenants, is admissible to show prima facie that the arrangement was continued in 1872, especially will the refusal to strike out such testimony not operate as good ground for a new trial, when it is clear that its exclusion ought not to change the ver

dict. 3. An unproductive suit on a guardian's bond will not operate as an estoppel

upon the wards from the recovery of the property, or its value, from a third

party who appropriated it after knowledge that it belonged to the wards. 4. A guardian cannot appropriate the property of his ward for his own bene

fit without at least complying with the forms of law; nor can the purchaser of such property, having notice of the wards' interest, acquire title under

the sale. 5. A factor or commission merchant, who has cotton consigned to him ty

tenants with knowledge that one-fourth belongs to the landlord, and with instructions to put it to the landlord's credit when sold, cannot apply it to payment of advances made to the tenants. After payment of commissions, storage, etc., he must hold the balance of the proceeds for the landlord.

Continuance. New trial. Evidence. Estoppel. Guardian and ward. Sales. Factors. Before Judge GOULD. City Court of Augusta. February Term, 1875.

Susan DuBose and William W. Simpson, as guarılian of Louisa T. and William V. DuBose, minors, brought assumpsit against Branch, Sons & Company on the following bill of particulars :

Branch, Sons & Company, “1873. To Susan DuBose and William W. Simpson, guardian, Dr. “ April 24th. To net proceeds of twenty-one bales of cotton sold by you on our account, .

$984 82 The record discloses no pleas. The jury found for the plantiffs. The defendants moved for a new trial upon several

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