Bowden et al. vs. Taylor.

this evidence was admissible.

It was incumbent on the

plaintiff to show to the court, before he was entitled to recover on his bond, that there had been a breach of the bond. In order to show that, it was necessary to prove that the property described in the bond had been advertised for sale, and had not been produced in accordance with the forthcoming bond. The evidence of the attorney in the case was irrelevant, but did no harm to the defendants. There was no error, therefore, in admitting this testimony.

5. The 4th ground insisted on in the certiorari was, that the judgment was not for the proper amount, and was not rendered at the proper place. The plaintiff in error insists that the judgment for the interest and costs was for too much. As the case is to go back for a new trial, we deem it unnecessary to enter into a close calculation as to the amount of interest and costs. If the amount is too large, we presume the magistrate will correct it at the next trial. As to the attorneys' fees, we see no evidence in the record of this case to authorize a judgment for the attorneys' fees.

6. As to the judgment being rendered at the wrong place, we say that we think that the better and proper practice is for the justice not only to render but to write out his judgment at the court-ground before he adjourns his court.

Judgment reversed.

BOWDEN et al. vs. TAYLOR.

1. An affidavit of illegality having been filed and not being put in evidence in this case, the law presumes that a ground apparent at the time of filing the illegality was taken therein. If not then taken, it could not be insisted on afterwards.

2. There was no error in entering up judgment for attorneys' fees.

Bowden et al. vs. Taylor.

The suit included attorneys' fees, and it seems that they were one of the items in the fi. fa. levied.

April 25, 1888.

Presumptions.

Attorneys' fees. Before Judge RICHARD H. CLARK. Dekalb superior court. August term, 1887.

The facts of this case and the questions of law involved are so similar to those in the case just preceding between the same parties, that the report of that case is referred to as the report of this. Only the following additional statement is deemed necessary:

The fi. fa. in this case was levied, on October 7, 1884, on 3,000 pounds of seed-cotton, more or less, in the field. It was in favor of "J. W. Kirkpatrick, agent Wando Phosphate Company vs. W. T. Bowden and A. C. Bowden. The bond recited the levy as on "3,000 pounds seed-cotton more or less, 500 bundles of fodder more or less, and fifteen bushels of corn more or less." It represented the date of the levy as the 18th instead of the 7th of October, and described the plaintiff as "J. W. Kirkpatrick." The fi. fa. was headed "Georgia, Fulton county" and recited the judgment as rendered at a justice's court for the 536th district, G. M. (without stating the county); whereas the plaintiff sued as formerly constable of the 536th district, G. M., of DeKalb county." This alleged discrepancy was one of the grounds of objection to the admission of the fi. fa.

W. J. & J. R. ALBERT, for plaintiffs in error.

H. C. JONES and ALEXANDER & TURNBULL, contra.

SIMMONS, Justice.

This case contains the same facts and points as are

Bowden et al. vs. Taylor.

contained in the case just decided between the same parties, and the decision in that case rules the points in this, with two exceptions. When the fi. fa. was offered in this case, it was objected to upon the additional ground that it was headed "Georgia, Fulton county," and recited the judgment as rendered in the justice's court of the 536th district, without stating the county. The plaintiff in the suit on the bond alleged that he was formerly the constable of the 536th district, of Dekalb county. The court admitted the fi. fa. in evidence.

1. Whether the judgment admitting the fi. fa. in evidence was proper, would depend on whether the illegality filed by the defendant had been disposed of or not. If it should appear on the next trial, by proper proof, that this illegality had been disposed of in favor of the plaintiff against the defendant, then we are inclined to think that this point would not be welltaken, because we suppose that this was one of the grounds of illegality to the fi. fa. If it was not one of them, it should have been; and it would be too late for the defendant, on the trial of the suit on the bond, to object to the fi. fa. on this ground. It being a good ground of illegality, the law presumes that when the defendants filed their illegality this ground was taken. If not taken then, it could not be insisted on afterwards. If it was in the illegality and the illegality was dismissed by the superior court, it is a judgment of that court that the fi. fa. is sufficient.

2. Objection was made also to the entering up of a judgment for attorneys' fees. This suit was not only for principal and interest and costs, but for attorneys' fees, and it seems that the plaintiff in the original action obtained a judgment for the principal, interest, costs and attorneys' fees, and that the attorneys' fees

Morgan vs. Swann, Stewart & Company.

were one of the items in the fi. fa. founded on that judgment. There was no error, therefore, in entering up judgment in this case for attorneys' fees. Judgment reversed.

MORGAN US. SWANN, STEWART & COMPANY.

1. The verdict being against the wife's title in a contest with her husband's creditors, the record discloses no reason for not accepting it as true. Juries, as a general rule, need no encouragement to vindicate the wife's rights in such controversies, where her title is bona fide.

2. The omission to charge the jury without special request on such plain matters as that mere possession by the husband of the wife's property will not subject it to his debts, and that conflicting testimony ought to be reconciled if practicable, will not work a new trial.

May 21, 1888.

Husband and wife. Title. Verdict. Charge of court. New trial. Before Judge BOYNTON. Newton superior court. September term, 1887.

Report unnecessary.

TOOMBS SPEARMAN and EMMETT WOMACK, for plaintiff in error.

CAPERS DICKSON, contra.

BLECKLEY, Chief Justice.

This case embraced only a question of fact, as to the ownership of a mule. The claimant was the wife of the debtor, and she set up a title to the mule by purchase from her husband before the judgment lien in behalf of the creditors was established.

1. Juries, as a general rule need no encouragement to

The Central Railroad and Banking Co. rs. Hollinshead.

find in favor of the wife's title as against her husband's creditors, where her title is bona fide; and we see no cause in this case for not accepting the verdict as true.

2. Complaint is made that the court failed to charge the jury that mere possession in the husband, the debtor, would not subject the property, the same being consistent with the wife's title. Also, that the court omitted to charge as to the duty of the jury to reconcile conflicting evidence. But there was no request made to instruct upon these subjects; and we think a new trial should not be granted for the omission. The jury would know that if the property belonged to the wife, the possession of the husband ought not to subject it. There would be no danger of a jury making that mistake, and subjecting the property merely because the husband had it in possession, if it really belonged to the wife.

The duty of reconciling conflicting evidence is so obvious that there was certainly no error calling for a new trial in the omission to charge upon it without special request.

Judgment affirmed.

THE CENTRAL RAILROAD & BANKING Co. vs. HOLLINSHEAD.

1. Where there is evidence suggestive of such a theory, the court may instruct the jury that if the whistle was blown to frighten the animal, and not to keep it from going upon the track, this could be considered.

2. The letter of a defence may be so strong as to weaken its spirit. That a reluctant mule was forced by its driver to run twenty or thirty yards whilst a locomotive ran but forty or fifty, and thus the driver beat the train to the crossing and voluntarily urged the mule upon it ahead of the engine, is less probable than that the mule was frightened by blowing the whistle, and ran upon the crossing contrary to the driver's will, and in spite of his exertions to prevent it. May 25, 1888.

Charge of court. Railroads. Damages. Negligence.