Sumby vs. The State of Georgia. Verdict. Charge of court. Before Judge RICHARD H. CLARK. Fulton superior court. March term, 1888. Reported in the decision. GEORGE S. THOMAS, for plaintiff in error. C. D. HILL, solicitor-general, for the State. BLANDFORD, Justice. The plaintiff in error was indicted for assault with intent to murder by cutting, with a weapon likely to produce death, to wit, a knife, one Oscar Thurman, a little boy about eleven years old. The evidence showed that he stuck the knife in this little boy up to the hilt, and left it there, and that it took two strong pulls by the policeman to draw it out. There was no justifying circumstance, nothing whatever to excuse the act; the evidence shows that it was one of the most reckless, wanton, outrageous acts ever committed in this State. The jury found the defendant guilty, and he moved for a new trial on the grounds that the verdict was contrary to law and to the evidence, and that the judge who tried the case went out of the record and gave certain charges which were error. No honest jury with any regard for their oaths would have hesitated a moment to find this man guilty; no other verdict could have been returned. And while we think some parts of the charge of the court ought not to have been given in charge, yet, in the view we take of this case, they do not call for a new trial. The verdict was demanded by the evidence. Judgment affirmed. Hardman vs. Nowell et al. HARDMAN US. NOWELL et al. Where the administrator or executor of a deceased person was not a party to the cause, and the testimony for the plaintiff which defendant sought to rebut did not relate to anything that transpired between defendant and such deceased person, defendant was a competent witness to give such rebutting testimony. December 7, 1888. Witness. Evidence. Before Judge HUTCHINS. Walton superior court. August term, 1888. Reported in the decision. FOSTER & BUTLER, CALVIN GEORGE and B. S. EDWARDS, for plaintiff in error. H. D. MCDANIEL and McIIENRY & WALKER, contra. BLANDFORD, Justice This was an action of ejectment, brought by Hattie B. Nowell, Willie A. Sheats and Ossie Ray, against B. Hardman. The plaintiffs claimed title to the land in dispute under a deed of gift from the defendant to their father, W. S. R. Hardman, deceased, who was a son of the defendant. The jury found for the plaintiffs. On the trial in the court below, the plaintiffs introduced witnesses who testified that the defendant had made statements to the effect that he had given the land in dispute to his son, the father of the plaintiffs. This testimony did not relate to what had transpired between the defendant and his son, the latter not being present when the statements testified to were made. The defendant offered, in his own behalf, to testify in rebuttal of this testimony; but the court held that he was an incompetent witness, the son being dead. We think this was error. There is nothing in the evidence Collier vs. Farr. act of 1866 which rendered him incompetent; indeed, under that act he was competent, where at common law. he would not have been competent. The executor or administrator of the deceased was not a party to the case; and the testimony which the defendant sought to rebut did not relate to anything that transpired between the defendant and the deceased. We have held that where the executor or administrator of the deceased is a party, the opposite party is left in the condition he was in before the passage of the act of 1866; he was then incompetent and could not testify to anything, whether the matter transpired between him and the deceased or not. We think that, under the circumstances of this case, the defendant was competent to rebut the testimony of these witnesses. We know of no decision to the contrary; indeed this view is in accordance with the uniform rulings of this court since the act of 1866. Judgment reversed. COLLIER VS. FARR. Before an applicant can have obstructions removed from a private way, he must show not only that there has been an uninterrupted use for more than seven years, but that it is not more than fifteen feet wide, that he has kept it open and in repair, and that it is the same fifteen feet originally appropriated. October 22, 1888. Private ways. Prescription. Obstructions. Before Judge MARSHALL J. CLARKE. Fulton Superior court. March term, 1888. Reported in the decision. JOHN COLLIER and T. P. WESTMORELAND, for the plaintiff in error. 81 749 110 326 111 873 81 749 118 703 Collier vs. Farr. JAMES A. GRAY, contra. SIMMONS, Justice. It seems, from the record in this case, that there was a private road leading from Farr's house to the Howell's mill road, and another private road leading from the Howell's mill road to the Peachtree road. Collier had placed obstructions in both roads. Farr applied to the ordinary for an order to compel Collier to remove the obstructions. It appeared, from the evidence taken before the ordinary, that both of these roads had been used uninterruptedly by Farr for more than seven years. It does not appear from the evidence that the road leading from Farr's house to the Howell's mill road had been kept open and in repair by Farr, or that he had ever done any work thereon. It appears that the road leading from the Howell's mill road to the Peachtree road had had some work done on it by him, but that two trees had fallen across it; one of which had been there from eight to ten years, and the other some two years before the trial before the ordinary. Instead of removing the trees from the road, and thereby clearing it of the obstructions, Farr made new roads around the trees. Under this evidence, the ordinary passed an order requiring Collier to move the obstructions. Collier sued out a writ of certiorari to the superior court, and that court, upon hearing the certiorari and the answer of the ordinary, affirmed the judgment of the ordinary and dismissed the certiorari. Collier sued out his bill of exceptions to this court, and complained of said ruling as erroneous. We think the court below erred in affirming the rul ing of the ordinary. Our code, §721, in defining what a private way is, says, it must not exceed fifteen feet in width, and must be kept open and in repair by the Collier vs. Farr. person on whose application it is established, and may be as much less as the applicant may choose. This court, in construing this section, has frequently held, that the keeping it open and in repair must always be shown before an applicant will be entitled to an order to remove obstructions therefrom. In the case of Short et al. vs. Walton et al., 61 Ga. 28, this court held that, "to acquire a prescriptive right to a private way over land, it is necessary to show the uninterrupted use of a permanent way, not over fifteen feet wide, kept open and in repair for seven years. It is not sufficient to show that those claiming the prescription have been accustomed for more than seven pears to pass over the land, changing the way as they saw fit, to avoid obstructions or for convenience." This ruling was reaffirmed in the case of Aaron vs. Gunnels, 68 Ga. 528, in which case the court say: "So far from the evidence showing that these parties ever worked this (road) or kept it in repair, it shows that it has never been worked by anybody, and that nothing has ever been done to it except the pulling out of the way any bush or other thing which by chance happened to fall into it, by the passers thereon." See also the case of Nott vs. Tinley, 69 Ga. 766, in which the court hold that "where a private way is claimed by prescription, the parties setting up such claim must bring themselves strictly within the requirements of the law." In the case of Woolbright vs. Cureton, 76 Ga. 107, the court say that "where there was no evidence to show that the way was not over fifteen feet in width, and that it had been kept open and in repair for seven years, the judgment of the ordinary ordering removal of the obstructions therefrom was properly reversed, on certiorari, and a new trial granted." These cases rule that before an applicant can have obstructions removed from a private way, he must not only |