Patterson vs. Ramspeck & Green.

(6) Near the close of the evidence, the court struck the fourth plea, heretofore set out, under the following circumstances: At the time the evidence of the Pattersons and Mathews was introduced, defendant's counsel stated that he would amend his plea so as to set up that, by a subsequent agreement, plaintiffs agreed to receive the cotton option after the note was due. Near the close of the testimony he did amend his plea, after the evidence had been received; whereupon the court struck the amended plea and withdrew the evidence from the jury.

(7) The court refused to allow defendant's counsel to prove, by W. A. Davis, the value of middling cotton on October 15, 1883; the evidence being offered for the purpose of showing the value of the note on a cotton option basis.

The motion was overruled, and defendant excepted.

R. W. PATTERSON, for plaintiff in error.

LYON & ESTES, contra.

BOYNTON, Judge.

The head-notes in this case are full and cover all the points in the record, and are quite as comprehensive as a longer opinion would be.

Judgment affirmed.

INDEX.

ABATEMENT. See Criminal Law, and thereunder, Indictment.

ACCEPTANCE. See Bills of Exchange.

ACCORD AND SATISFACTION. See (generally) Settlement.

ACCOUNTS. See Amendment.

Service personal and no plea, court may direct verdict, denying ar-
gument. Stephens vs. Gate City Gas Co. 150(1, 2).

Verdict, court may direct, denying argument, where no plea filed
and service personal. Ibid. 150(1).

Same: Aliter, where service not personal and proof not
satisfactory, as in 41 Ga. 76. Ibid. 153(2).

Verdict, permission to take by default, as in case of judgments
under 23457. Ibid. 150(1a).

ACCUSATION. See Indictment under Criminal Law.

ACTIONS.

Harris vs.

Dismissal of traverse standing on motion docket right, but case
should be ordered entered on issue docket.
Lowe, 676.

Master cannot sue for battery of servant, unless service lost. Flu-
ker vs. Georgia Railroad, 461(5).

Money collected for use of plaintiff (share of attorney's fee), suit
must be brought within four years. Marler vs. Simmons, 611.
Sealed instrument, suit on, properly brought under 23391, though
promise implied only. Stansell vs. Corley, 454(3).

Servant, discharge pending term of service, may sue before expira-
tion of term. Roberts vs. Rigden, 440(1).

Same: Damages, how ascertained. Ibid.

Short form, under 23391; suit may be brought on implied promises
under. Stansell vs. Corley, 458(3).

ADEMPTION. See Legacies.

ADMINISTRATORS AND EXECUTORS.

Administration, expenses of, must be paid out of estate of de-
ceased which he was owner of. Hill vs. Hill, 517(2).

Attorney; barred claims in hands of administrator as an attorney,
sureties not entitled to credit for, in suit against them by
heirs. Crabtree vs. Graham, 290(2).

Barred, debt becoming so after death of intestate, administrator
may revive. Ibid. 292(1).

Aliter, if court has adjudged claim barred, and this judg-

Bond, since code can any court but ordinary require executor to
give? Quere. Powell vs. Hammond, 567(4).

Executor de son tort, assignee under void assignment not liable as,
who administers in good faith after death of assignor.
Chattanooga Stove Co. vs. Adams, 319.

Fraud between administrator and first vendee, not affect title of
subsequent one without notice. King vs. Cabaniss, 662(3).
Injunction, effect of, which is to restrain executor from using or
disposing of assets except as will directs, left to stand.
Powell vs. Hammond, 567(1).

Same: Restraining sale of assets which executor claimed
as his by gift of testator, proper, when. Ibid. 567(2).
Misrepresentation by, before sale, as to title, or quality or quantity,
fix no liability on estate or himself. Wells vs. Harper, 194.

Negligence, administrator losing money of estate by, (pickpockets);
liable. Tarver vs. Torrance, 261(1).

Partition, administrators may represent heirs in proceedings for,
intimated. King vs. Cabaniss, 666.

Purchaser of heir's interest in land, if sold by administrator and
he buys, entitled to her part of proceeds of sale. James 18.
Hutcherson, 452(a).

Same: Purchaser failing to receive may set off to her suit
on purchase money note. Ibid.

Removal threatened by superior court unless executor give bond,
not reviewable until done. Powell vs. Hammond, 567(3).

Same: Since code can executor be removed except by ordi-
nary? Quere. Ibid. 567(4).

Revoke letters, can superior court do so since code, 331, par. 2?
Ibid. 579.

Sale advertised full legal period after general.leave to sell granted,
sufficient, though special order fixing place less than
twenty days before sale. King vs. Cabaniss, 661(1).

Sale by two executors when there were three, discussed.

Barlow, 8.

Ware vs.

Sale, purchaser at takes subject to rule caveat emptor. Wells vs. Har-
per, 194.

Sale, special order fixing place of, may be any time before actual
sale. King vs. Cabaniss, 661(1).

Sale by administrator of "south half" of lot which intestate owned
as tenant in common, divested title of heirs. Ibid. 661(2).
Same: Whether there was a legal partition before sale, not
decided. Ibid.

Sureties liable to distributees for amount paid by administrator on
debt barred by the judgment of a court.

ham, 290(1).

Crabtree vs. Gra-

Same: Not entitled to credit for barred claims in adminis-
trator's hands as attorney. Ibid. 290(2).

Same: Not bound by judgment against administrator,
when. Ibid. 292.

Title obtained from agent of two executors, not knowing there was
a third, purchaser protected, when. Ware vs. Barlow, 1(a).
Warrant title, executor or administrator cannot. Wells vs. Harper,
194.

Witness; opposite party not competent to anything, when admin-
istrator or executor a party. Hardman vs. Nowell, 748.

ADMISSIONS. See Title.

ADULTERY AND FORNICATION. See Criminal Law.

ADVERTISEMENT. See Administrators and Executors, and there-
under, Sales.

ADVICE OF COUNSEL. See Attorney and Client.

ALLEYS. See Streets and Sidewalks.

AMBIGUITIES.

Parol evidence admissible to explain ambiguity in submission to
an award. Riley vs. Hicks, 265(2).

Same: In memorandum of sale. Wilson vs. Coleman, 297.
Same: 3 "C. L. R. P. oats" shown to mean 3 car-loads
Texas rust-proof oats. Ibid.

AMENDMENT. See Pleadings."

Account for cross-ties cut and delivered amendable by setting out
contract, it being in nature of a memorandum fixing
prices, sizes, etc. Fla. Mid. Railroad vs. Varnedoe, 175(1).
Bonds taken in course of judicial proceedings are amendable. Lytle
vs. De Vaughn, 226(1) .

Cause of action, none stated, nothing to amend by. White Com-
pany vs. County, 47(3).

Same: Action was against county for damages for detaining
steamer by river bridge. Ibid.

Certiorari, petition for, is not amendable. Western and Atlantic Rail-
road vs. Jackson, 478.

Denial of, to declaration, which would have put plaintiff out of
court, not error. Skellie vs. Central Railroad, 56(2a).

New cause of action, improperly allowed because a, held harmless
error because nullified by charge. McKamy vs. Cooper, 679.
New cause of action, minor fraudulently represented age, amend-
ment setting up, in aid of suit on note, is a. Ibid.

Time, is in, though after court had orally announced its judgment.
Lytle vs De Vaughn, 226(2).

APPEAL.

Dismissal of, by plaintiff, who was cast in county court, he may
begin anew. Fagan vs McTier, 73.

Dismissing the appeal, and dismissing the case on appeal, distin-
guished. Ibid.

Same: When the appeal is dismissed, the judgment below
is affirmed. Ibid.

Same: When the appeal is dismissed, the judgment below

is affirmed. Ibid.

Same: When the case on appeal is dismissed, the whole
case goes out, and plaintiff may begin anew. Ibid.

Lunatic prima facie competent to make pauper affidavit, when suit
brought by guardian. Mayor vs. Caldwell, 79.

APPROXIMATION. See Wills.

ARBITRATION AND AWARD.

Bar, award plead in, no ground for excluding that referees denied
one party proper hearing. Riley vs. Hicks, 265(4).

Same: This was question for jury. Ibid.