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Second grant approved, where court admitted some evidence ille

gally. Towner vs. Thompson, 171. Second verdict is a sacred thing, but less sacred than the law and

substantial justice of the case. Peary vs. Ga. Railroad, 488. Verdict against the weight of evidence, no error to grant. Creel vs.

Bush, 342. Verdict too small, no injury to defendant and no ground for, at his

instance. Roberts vs. Rigden, 440(2). Witness not sworn, no ground for new trial. Smith vs. State, 480(2).

NONSUIT. See Railroads.

Passenger jumping to avoid being carried beyond street crossing,

nonsuit proper. Watson vs. Georgia Pacific Railway, 476. Rope furnished by master to servant (well-digger) breaking and in

juring him, nonsuit proper, when. Reid vs. Central Railroad. 694.

NOTICE. See Principal and Surety ; Stock and Stockholders.

Constructive, does not make a title fraudulent. Ware vs. Barlow, 6. Fraud between administrator and first vendee not affect title of sub

sequent one, without. King vs. Cabaniss, 662(3). Fraud, to avoid bar of claim; what facts sufficient to put plaintiff on

notice. Marler vs. Simmons, 611. Innocent purchaser of property inherited by husband from wife,

without notice of any interest of children, held so here.

Lathrop vs. White, 30(5). Intruder on uninclosed lands becomes trespasser after notice. Fluker

vs. Georgia Railroad, 463. License implied, and gratuitous, may be terminated by notice. Ibid.

464. Record of a settlement or trust deed is how far notice. Lathrop vs.

White, 35.
Record of deed made January 2, 1867, to husband as trustee for

wife, not charge notice that it was bought with proceeds of
property devised to her for life, then over to children. Ibid.
30(4).
Same: Wife dying in 1868 or 1869, her property descended

to husband and he might sell. Ibid. 29(2). Sale of land, heirs having notice of, and of defendant's possession

fifteen years cannot recover, when. Ware us. Barlow', 2(2).

NOTICE TO PRODUCE.

Compelled, production will not be, unless proof of materiality, and

that it was in defendant's possession. Carlton vs. · Western

& Atlantic Railroad, 531(2). Privileged communication, conductor's report is not, and produc

tion compelled. Ibid. (2a). Secondary evidence admissible without, when. Crawford 18. Hodge.

728. NUDUM PACTUM. See Contracts.

NUISANCE.

Continuing, can be none, where no original nuisance. Atkinson vs.

City, 625.
Same: Prior to constitution of 1877, damages from sewers

or grading, not recoverable, unless done unskilfully.

Ibid.

Same: Smith vs. City, 75 Ga. 110, distinguished. Limitation of action; suit must be brought within four years, when.

Atkinson vs. City, 625.

OFFICERS OF COURT.

County not entitled to pro rate with, in fines and forfeitures. Gor

don County vs. Harris, 720. Entry of nulla bona made after dormancy and antedated to revive

judgment, not only void but villainous. Sprinz vs. Frank,

162(4). Insolvent costs of; fines and forfeitures, how distributed in favor

of. Gordon County vs. Harris, 719.

PARTIES. See Practice in Supreme Court.

Minors interested in trust estate must be made parties before it can

be sold. East Rome Co. vs. Cothran, 360(3). Undisclosed principal may sue on contract of affreightment, but

agency must be alleged and proved. Atlanta & West Point Railroad Co. vs. Texas Grate Co. 602(2).

PARTITION. See Construction.

Administrator may represent heirs, in proceedings for, intimated.

King vs Cabaniss, 666. Division in kind of land under will, acquiesced in fourteen years,

binding though unequal. Leverett vs. Stevenson, 701.

Equity power to decree, under 23183, discussed. Mayer vs. Hover,

314.

PARTNERSHIP.

mon.

Individual property of either subject, when fi. fa. against two as

copartners. Parler vs. Johnson, 254(1). Land conveyed to; death of member after dissolution; survivor

cannot recover in ejectment. Baker vs. Middlebrooks, 491.
Same: Can recover only his due share as tenant in com-

Ibid.
Same: Share of deceased descends to his heirs, subject to

firm debts. Ibid. Land in actual use by firm; may be a sort of title in firm distinct

from ownership as tenants in common. Ibid. 494. Suit by one partner after dissolution, on claim of firm, should he

show assignment to himself ? Riley vs. Hicks, 266(6).
Same: Amendable by joining other partner as co-plaintiff

Ibid.
Tenants in common, partners are, as to realty ; each can convey or

incumber no more than own share. Baker is. Middlebrooks,

494. Time of essence, one partner competent to make it so in contract

for firm. Van Winkle vs. Wilkins, 94(5).

for use.

PERJURY. See Criminal Law.

Judgment not set aside for perjury of witness, if no conviction has

taken place. Wilson vs. Sullivan, 238(2).

PLEADINGS. Justification; Libel.

Account, suit on, amendable by setting out contract, when. Flor

ida Midland Railroad vs. Varnedoe, 175(1). Amendment: ejectment in “John Doe" form, demise may be in

troduced by, at any time. Jones vs. Johnson, 293(1),
Same: Every demise of this character is a separate cause

of action. Ibid.
Same: It does not relate back, but takes effect from date

of amendment. Ibid. 294(2). Change of contract, plea setting up, and no new consideration al

leged, properly stricken on demurrer. Patterson vs. Ram

speck, 808(4). Former recovery, plea of, not lie to second suit by plaintiff, who

had appealed, and dismissed. Figan 78. McTier, 75.

Justification, plea of, to libel, no waiver of defence that the words

were privileged. Wilson vs. Sullivan, 238(3). Open account, service personal, no plea; court may direct verdict

denying argument. Stephens t's. Gate City Company, 151(1). Principal though undisclosed may sue, but pleading must be shaped

to meet proof of agency, and agency must be shown. Atlanta

& West Point Co. vs. Texas Grate Co. 602(2'. Surety, plea by, that principal signed under duress of illegal impris

onment, and want of knowledge by surety, error to strike.

Patterson vs. Gibson, 802. Usury, plea of, not required in order for defendant to attack plain

iff's title. Jaques vs. Stewart, 81(1). Variance: contract to deliver freight to B. for B. not support allega

tion to deliver to plaintiff, a corporation, or to B. for it. Atlanta & West Point Co. vs. Texas Grate Co. 602(1).

POSSESSION. See Crops ; Prescription.

case.

Adverse, question of, is one of intent, and turns on bona fides of ten

ant. Ware vs. Barlow, 7. Deed, held under, without more, sufficient to make out prima facie

Parker vs. Waycross & Florida Railroad, 392. Declarations of party in, in disparagement of her title, admissible

Johnson vs Cour, 25. Ejectment, plaintiff may recover in, as against mere trespasser, on

prior possession alone. Parker vs. Waycross & Florida, 392. Tacking in defence of possessory warrant, authorized under 394038,

4035. Gaillard vs. Hudson, 738.

POSSESSORY WARRANT.
Consent, disappeared without, must be alleged, where warrant

under second clause of 94032. Odom vs. Trantham, 713(2). Fraudulent misrepresentations, possession of horse obtained by, re

coverable by. I bid. 714. Lent without fraud, warrant not lie to recover property. Ibid.

713(1). Possession of four years under 24038, may be obtained by tacking

under 24035. Gaillard vs. Hudson, 738.

PRACTICE IN SUPERIOR COURT.
Amendment is in time, though offered after oral judgment an-

nounced. Lytle vs. De Vaughn, 226(2). Continued by consent, case cannot be without permission of court.

Camp vs. Morgan, 740.

Evidence, allowing additional, is always in discretion of court.

Central Railroad vs. Nash, 581(la). General character, refusing to allow counsel to explain, not error,

not appearing what explanation proposed. Flemister vs.

State, 768(3), Illegal testimony admitted on one side without objection, not jus

tify illegal rebutting testimony. Woolfolk vs. State, 552 (2a),

558. Judge absenting himself from bench, pending argument, not work

new trial, when. O'Shields vs. Stale, 301. Jury must take law from court in criminal cases. Hunt vs. State,

141. Jury; sending out in either civil or criminal case, pending hearing

of preliminary testimony, is in discretion of court. Woolfolk

vs. State, 553(7), 564. Laws relating to, applicable in city court of Atlanta. Harris vs. Lowe,

676. Questions, shaping for jury, no error here; range was wide enough.

McCook vs. Harp, 229(1).
Same: Other questions, if thought necessary, should have

been suggested. Ibid. Reopening case, after testimony closed, is in discretion of court

Maddox vs. Cole, 325.
Same: Discretion not abused where witness excluded could,

have been subponaed. Ibid. Trial, conduct of; applause and outcry "hang him" in court-room,

during trial, unrebuked, effect of, considered. Woolfolk vs.

State, 552(4).
Verdict, none should be allowed, where no evidence before jury.

Sprinz vs. Frank, 162(1).
Same: Applied to illegality where evidence offered was ex-

cluded. Ibid.

PRACTICE IN SUPREME COURT. Absence of counsel of plaintiff in error; as to duty of, to notify court of conditions which will prevent attendance.

Evans vs.
Kilby, 280
Burden is on plaintiff in error to show error. Wikle vs. Woolley,

107(4).
Same: Decision below not clearly right, sustained if not

clearly wrong. Ibid. Conversation, error in rejecting, not determined, where import of

it not in record. Moore vs. Brown, 11(5a).

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