Savannah morning news. [volume] (Savannah) 1868-1887, 1884-01-11
THE SUPREME COURT.
Decisions Rendered in Cases from the
Eastern Circuit.

Decisions Rendered in Cases from the
Eastern Circuit.
The following opinions in cases from
the Eastern Circuit were rendered
in the Supreme Court on Tuesday:
Chas. g. Platen vs.. Hon. A. P. Adams. APP
plication for mandamus-frOm Chatham.
Bill of exceptions. Answer of Judge to
mandamus nisi.
JACKSON, {. j.
A Judge cannot certify as true that which
he does not know to be true. The answer OF
the Judge below to the mandamus nlsl IN this
case gives this as one Of his reasons for not
signing the bill OF exceptions presented D.
applicant. That answer cannot be traversed.
Code Ass. Hence the application for man
damusabsolute must be dismissed. Appliea-
ton dismissed.
Chss G. Platen in propria persona, for ap-
plicant
A. B. Hazard VS.. Mayor and Council OF
avannah-Case-from City Court Of Sa-
vannah. Before Judge Harden.
JACKSON. G. J.
This is the first grant of a new trial. and we
cannot say the court abused its discretion.
Judgment affirmed.
r. R. Richards. J. J. Abrams, for plaintiff;
ii. c. Cunningham contra.
Dale * Wells vs.. Marmelstein. Appeal-from
Chatham. Before Judge Adams; and same
vs.. w. 7. Daniels. Certiorari, from Chat
ham.
JACKSON, G. j.
These cases are covered and controlled by
the decision of this court in the case Of Thomp-
son VS.. Sprage, SOulle Co., september term,
1887. Judgment a1hrmed.
j. R. saussy for plaintiffs; j. j. Abrams
contra.
Morgan. trustee. vs. Harden, administrator.
Compensation of Receiver-from Chatham.
Before Judge Adams. New trial. Verdict
Newly discovered evidence.
JACKSON, c.. j.
/. This case involves the character of a Re-
ceiver, who is now dead; it was settled By the
jury in his favor while he was alive and able
to explain all his conduct; he did explain ~, It
to the satisfaction of the jury. To open the
case for another hearing, after his death,
ought to require strong grounds showing err
rOr in the first trial.
?. We cannot see any material error of law
or the trial, or that the verdict IS not sup
ported by sufficient evidence.
3. The newly discovered evidence Is simply
a renewal of the attack on the official conduct
of the deceased, which might be explained
were he living, and besides it is hardly other
than cumulative in its character. Judgment
affirmed.
c. \. West, H. c. Cunningham. J. r. Saussy
for plaintiff; W. S. Chisholm, VIM. Garrard
contra.
Savannah, Florida and Western Railway
Company vs.. James c. Barber. Case-from
Chatham. Before Judge Adams. Declara-
ration. Proof. Negligence. Onus. Pre-
sumption.
JACKSON, G.. j.
l. The first grant Of a new trial is not closely
scrutinized to detect an error in granting It.
,. Though a declaration may allege Gel tain
specifications of negligence, yet If proof be al
lowed to 20 to the jury, without objection,
outside OF those alleged, the plaintiff should
not. it seems. be held strictly to the allegata,
no objection having been made to the admis-
sion OF the evidence and no melton to rule 1t
out. After verdict such objection would not
be good, because the declaration could have
been amended so as to cover the omitted ale
cations. Why should not the same rule OBJ
tain after the testimony is all in, the argu-
ment closed and the Judge is engaged in
charging the jury? 40 Ga, 26S; % Ga, Is.
3. 1t was error to charge that plaintiff could
not recover unless it was impossible for him to
eXtrcate his hand without injury when the
emergency was upon him. The rule Is that ne
could not recover if by ordinary care he could
have avoided the injury, Code 2970.
4. charge, without qualification, that
plaintiff must be blameless, was error. He
must be bameless about the business which
caused the injury, and his carelessness or
neglect must have been such as to contribute
to the injury 63 Ca, l73; Central Railroad
and Banking Company vs.. DeBray, this term.
;. The burden was not on the injured en-
ploye both to show himself blameless and the
defendant negligent. Both must concur to
entitle him to verdict, but the proof of either
by him causes a legal presumption of the other
until the presumption Is rebutted 81 Ca, l5l;
81 Ca, 436.
8. The Judge below having himself stated
that an intimatiOn Of opinion as to facts was
given to the jury by him, and as he is DESTROYS
to avoid the intimation on another trial, we
do not interfere.
Judgment affirmed.
Chisholm & Erwin for PLAINTIFF; R. r. Rich
ards contra.
Epping VS.. Aiken. Equity-from Mcintosh.
Before Judge Adams. Bill of exceptions.
Practice. jurisdiction. Parties. Evidence.
Set-oh.
JACKSON. c. j.
\ bill Of exceptions may be amended from
the record by adding a party plaintiff, who
was party in the court below. Code 42SS,
4272b.
,. 4 person who was not served below and
who was not a party, but who was one Of
partnership, 44em5ers Of which were served
and bring the case to this court, is not nee
essary party here, and indeed could not be
made party here. Code 425l.
3. An agreement by which one was to give
| his attention and time to the business of
firm, for which he was to receive certain COM
pensatOn, and his wifi to he paid Is per cent.
of the net profits Of the business, could be en-
forced by him in equity, 1t being alleged by
amendment to his bill that the beneficial in
terest in the Is per cent was really IN him,
and that his wife had transferred all her
claims to him; and the bill being filed for an
accounting as to the profits of the business,
etc. Code 313o, 1887. 1888; 81 Ca, 1873.
4. a mere memorandum, signed only by one
of the parties to a contract, and not purport-
ing to cover the entire contract, may be eX-
planned by parol evidence.
5. Where accounts are complicated and in
tricate, and transactions from which they
spring are prOtracted, and there are mutual
dealings and privity of contract between the
parties. court of equity can better adjudi-
cate questions involved than court of law.
l Ca, 376; Ca, %; Ca. 440
6. We do not think the wife was a necessary
party to this bill, though by the memorandum
of agreement the per cent. of profit was to be
paid to her order; yet 1t Is alleged that the
husband had the real beneficial interest and
that the wife had assigned her interest to him.
The memorandum does not state that her or
der must be in writing, nor do we regard it
such a chose in action as should be assigned in
writing. Besides, there was no special de-
murrer on the ground that the wife was not
made party.
Z. As complainant had the right to go into
equity to recover tine Is per cent. of profits,
he could also assert in his bill a right to re-
cover money loaned to the firm for partner
ship purposes. Code 3085.
s. Equity is slow to open a stale matter, but
where this staleness is combined with IdcheS
in not looking at the records to see prior liens,
when one purchases at Sherih's sale, there
would seem to be an insuperable bar.
9. But it seems that defendant had proper
ty of complainant in his possession more than
long enough to have been repaid the debt he
attempts to set off, and that said debt is not
really due.
TO- Matters of fact involved in this cause
seem to have been properly determined.
Judgment affirmed.
w. 5. Basinger for plaintiff; Lester & Raw
enel, W. 4. Gignilliat contra.
Anderson VS.. the State. Murder, from Nc
Intosh. Before Judge Adams. Criminal
law. Continuance. Charge of court. Con-
fessiOns.
HALL, j.
l. The motion for continuance was properly
overrued. Independent of the fact that sufi-
cient diligence may not have been shown in
procuring the testimony of absent witnesses,
what it was expected such absent witnesses
would swear only went to account for the
whereabouts Of one not the prisoner, at the
time of the murder. The showing did not set
forth that defendant had no other witnesses
by whom he could prove the same facts, nor
could this be done, because prisoner intro
duced on the trial at least three other wit
nesses who testified substantially to them. 10
Ga. S. Code 4647; 40 Ga. 2l5.
2. An exception to the entire charge of the
pourt Is foo raupral n no considered thouph