Second grant approved, where court admitted some evidence illegally. 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 injuring him, nonsuit proper, when. Reid vs. Central Railroad. 694.

NOTICE. See Principal and Surety; Stock and Stockholders.

Ware vs. Barlow, 6.

Constructive, does not make a title fraudulent. Fraud between administrator and first vendee not affect title of subsequent 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 vs. 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 production compelled. ̄ Ibid. (2a).

Secondary evidence admissible without, when. Crawford vs. Hodge.

728.

NUDUM PACTUM. See Contracts.

NUISANCE.

Continuing, can be none, where no original nuisance.
City, 625.

Atkinson vs.

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. don County vs. Harris, 720.

Gor

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.

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 common. 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' for use. Ibid.

Tenants in common, partners are, as to realty; each can convey or incumber no more than own share. Baker vs. Middlebrooks, 494.

Time of essence, one partner competent to make it so in contract for firm. Van Winkle vs. Wilkins, 94(5).

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. Florida Midland Railroad vs. Varnedoe, 175(1).

Amendment: ejectment in "John Doe" form, demise may be introduced 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 alleged, properly stricken on demurrer. Patterson vs. Ramspeck, 808(4).

Former recovery, plea of, not lie to second suit by plaintiff, who had appealed, and dismissed. Figan rs. 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 vs. 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 plainiff's title. Jaques vs. Stewart, 81(1).

Variance contract to deliver freight to B. for B. not support allegation 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.

Adverse, question of, is one of intent, and turns on bona fides of tenant. Ware vs. Barlow, 7.

Deed, held under, without more, sufficient to make out prima facie case. Parker vs. Waycross & Florida Railroad, 392. Declarations of party in, in disparagement of her title, admissible Johnson vs Cor, 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 224038, 4035. Gaillard vs. Hudson, 738.

POSSESSORY WARRANT.

Consent, disappeared without, must be alleged, where warrant under second clause of 24032. Odom vs. Trantham, 713(2). Fraudulent misrepresentations, possession of horse obtained by, recoverable by. Ibid. 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 announced. 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 justify illegal rebutting testimony. Woolfolk vs. State, 552(2a), 558.

Judge absenting himself from bench, pending argument, not work new trial, when. O'Shields vs. State, 301.

Jury must take law from court in criminal cases.

141.

Hunt vs. State,

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 subpoenaed. 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 excluded. 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. Kilby, 280.

Evans rs.

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).