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Thompson vs. The State of Georgia.

with his knife. The evidence does not show that there were any wounds or bruises on the person of defendant.

7. The 4694th section of the Code declares that on the trial of an indictment for an assault, or an assault and battery, the defendant may give in evidence to the jury any opprobious words or abusive language used by the prosecutor, or person assaulted or beaten ; and such words may or may not amount to a justification, according to the nature and extent of the battery, all of which shall be determined by the jury. Assuming that the defendant did call the deceased a damned liar, and that the deceased did strike him, he would have been justifiable in doing so under the law, provided the battery was not disproportioned to the insult offered by the opprobious words. In view of that evidence under the statute, the striking the defendant by the deceased could not be considered as such “considerable provocation,” under the law, as would rebut the presumption of malice on the part of the defendant in killing the deceased. If the court charged the jury correctly as to the law applicable to the evidence, and we are bound to assume that it did, as there is no exception taken to the charge in the record, we cannot say, as a reviewing court, that the verdict is either contrary to law or the evidence. In criminal cases, the jury are made the judges of the law, as given them in charge by the court, as well as of the facts. It is the peculiar province of the jury to judge of the credibility of witnesses when their evidence is conflicting, as in this case, and to believe those who, in their judgment, are entitled to most credit, taking into consideration the circumstances under which they testify, as well as the consistency and probable accuracy of their statements. In our judgment, there is sufficient evidence in the record to sustain the verdict, according to the repeated rulings of this court in similar cases.

Let the judgment of the court below be affirmed.

McCalla vs. Clark.

CHARLES P. MCCALLA, plaintiff in error, vs. HORACE P.

CLARK, defendant in error. 1. Tender of the debt on the day it becomes due terminates the creditor's

right to retain possession of a pledge held as collateral security; and it is an immediate conversion for him to refuse the tender, and retain the pledge on a claim of title based upon an alleged forfeiture for delay to make pay

ment. 2. But if the debtor be himself in default by reason of having delayed pay

ment beyond maturity of the debt, a like refusal and claim by the creditor will not amount to a conversion, if, on the same day of the tender, before suit is brought, and before the situation of the parties is materially changed, he retract his refusal, after taking the advice of counsel, and then offer to accept the tender and restore the pledge, provided the tender be enlarged so as to cover charges on the pledge which the creditor has lawfully paid prior to the tender. Especially will there be no conversion, under these circumstances, where the delinquent debtor, in making the tender, omitted to include the lawful charges with which the pledge is incumbered, when he knew there were such charges, or might have known it by the

use of ordinary diligence. 3. Assessments rightfully paid by the creditor upon stock pledged to him as

collateral security, are charges upon it, in the nature of expenses, and must be refunded by the debtor as a condition precedent to reclaiming the

pledge. 4. The debt and charges are pertinent matters by way of recoupment, or in

mitigation of damages, on the trial of an action of trover for conversion of a pledge; and a special plea' setting them forth ought not to be stricken, even though the plea conclude, improperly, with a prayer for judgment against the plaintiff, and for a sale of the pledge to satisfy said judgment,

Debtor and creditor. Tender. Pledge. Conversion. Pleadings. Before Judge HOPKINS. Fulton Superior Court. April Term, 1875.

McCalla brought complaint against Clark for a certificate representing one hundred and twenty shares of the stock of the Atlanta Ice Manufacturing Company, alleged to be of the value of $2,000 00. The defendant pleaded the general issue, and especially that said stock was transferred to him as collateral security for the loan of $113 00, besides interest; that he had been compelled to pay assessments thereon to the amount of $180 00 to prevent the forfeiture thereof; that the sums of money thus loaned to the plaintiff, and advanced for

McCalla vs. Clark.

his benefit, have not been refunded; that the plaintiff is insolvent, and the defendant will lose the amounts advanced as aforesaid unless lie shall be enabled to subject the said stock to their payment; that, therefore, he prays judgment against the plaintiff for the said several sums of money and interest, and that said certificate of stock be directed to be sold for the purpose of refunding the same to defendant.

The plaintiff moved to strike the special plea of the defendant. The motion was overruled, and he excepted.

The evidence presented the case made by the special plea, with the following alditional facts : Long after the maturity of the note given by the plaintiff to the defendant for the loan of money, to secure which the stock was transferred, the plaintiff tendered the amount due on such note, with interest, and demanded his stock. The defendant refused either to receive the money or to deliver the stock, upon the ground that the same had become forfeited to him on account of the failure of the plaintiff to meet his note at maturity. Subsequently, on the same day, after consultation with counsel, the defendant offered to return to plaintiff the stock if the latter would pay to him the amount due on the aforesaid note, with interest, and also $120 00 which he had been compelled to pay in response to assessments made on said stock while in his possession. This the plaintiff failed to do. Had not said assessments been paid by the defendant, the stock would have been forfeited to the company under its rules.

The court charged the jury that the refusal of the defendant to deliver the stock upon the tender being made as above stated, claiming the same to have become his individual property, would constitute a conversion ; but that the plaintiff still could not recover if the defendant offered subsequently, before any change in the condition of the parties or in the value of the stock, to return the same on payment of the amount loaned and that paid on account of assessments, with interest.

The court refused to charge to the contrary of the latter proposition.

The jury found for the defendant generally. A motion

McCalla vs. Clark,

was made for a new trial because of error in the refusal to strike the aforesaid plea, in the charge, and in the refusal to charge. The motion was overruled, and the defendant excepted

Fry & King; E. N. BROYLES, for plaintiff in error.

A. W. HAMMOND & Son; P. L. MYNATT, for defendant.

BLECKLEY, Judge.

The head-notes are so copious and explicit that little need be said by way of supplement. The defendant had not disposed of the pledge when suit was brought. Under the circumstances, the demand and refusal relied upon did not establish a conversion. There were lawful charges upon the property which were not tendered. The plaintiff was a delinquent debtor, and, having himself disregarded the element of time, was not in a situation to exact a very scrupulous regard of that element on the part of his creditor. It was but reasonable for the latter to have a few hours to consult counsel on the point of forfeiture, as the day appointed by the debtor for payment had long passed. If the lebtor had been prompt he might have had no cause to complain of the want of promptness in the creditor. It is, perhaps, not an uncommon failing to insist upon expedition which we do not practice. The prayer of the special plea may have been improper, but the substance of the plea was good as matter of recoupment, or in mitigation of damages : 15 Mass., 389; 13 Metcalf, 267; 4 Denio, 227; 20 Wend., 267, 273; 14 Ill., 424; Story on Bailments, sections 315, 349.

Judgment affirmed.

58 1901 65 446 72 769 82 196

Alexander vs. Martin,

JAMES H. ALEXANDER, administrator, plaintiff in error, vs.

John G. MARTIN, administrator, defendant in error.

Suit on a note due in 1861 by an administrator whose letters were granted on

the 3d of July, 1871, not brought until the 10th of October, 1872, was barred by the act of limitation of 1869: 50th Georgia, 382.

Administrators and executors. Statute of limitations, Before Judge HARRIS. Liberty Superior Court. May Term, 1875.

Reported in the opinion.

Rufus E. LESTER, by brief, for plaintiff in error.

J. W. FARMER, by brief, for defendant.

JACKSON, Judge.

Suit on a promissory note, due in 1861, was brought by the administrator on the 10th of October, 1872. Letters of administration were granted the 3d of July, 1871. More than nine months and fifteen days intervened between the grant of letters and the suit; therefore, the suit is barred by the equitable construction given that act by this court in the case of The Moravian Seminary vs. Atwood, 50th Georgia, 382, and the court was right in granting the non-suit.

Judgment affirmed.

JAMES A. STORY et al., plaintiffs in error, vs. FLOURNOY,

McGEHEE & COMPANY, defendants in error.

1. The taking of personal security on a note for money and supplies furnished

by a factor with which to make a crop, secured by the statutory lien, did

not operate as a waiver of such lien. 2. A second counter-affidavit to an execution based on the foreclosure of a

factor's lien cannot be filed without an allegation that the facts therein set forth were unknown to the defendant at the time the first was filed.

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