Affirmed. W. C. Hodnett, for plaintiff in error. A. orderly conduct. Municipal ordinances and | Jones. Judgment for defendant, and plain their terms and scope are not a matter for tiff brings error. judicial cognizance. Where a right of any kind is claimed by virtue of a municipal ordinance, and more especially where a penalty is sought to be imposed, the fact that such an ordinance has passed must be proved. In the absence of evidence that a specified act has been forbidden by a municipality, no presumption can be indulged that such act is illegal. Judgment reversed. HILL v. JONES. (No. 2,126.) (Court of Appeals of Georgia. Feb. 10, 1910.) (Syllabus by the Court.) 1. FRAUDS, STATUTE OF (§ 71*) - CONTRACT FOR SALE OF LAND. Section 2693 (4) of the Civil Code of 1895 requires that any contract for the sale of lands, or any interest in or concerning them, to make the obligation binding, shall be in writing, signed by the party charged therewith, or some person by him lawfully authorized. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 113-139; Dec. Dig. § 71.*] 2. FRAUDS, STATUTE OF ($ 115*) - SALE OF LAND-SUFFICIENCY OF MEMORANDUM. A receipt, alleged to have been given as part of the purchase price of land, which reads as follows: "Received of A. $5, to confirm trade for 161 acres of land purchased from B., known as Judge Hayes place," signed by B., is not such a note or memorandum of the contract of sale as will take the case without the statute of frauds as to A. Smith v. Jones, 66 Ga. 338, 42 Am. Rep. 72; Turner v. Lorillard Co., 100 Ga. 645, 28 S. E. 383, 62 Am. St. Rep. 345; Corbin v. Durden, 126 Ga. 429, 55 S. E. 30. [Ed. Note.-For other cases, see Frauds. Statute of, Cent. Dig. §§ 242-250; Dec. Dig. § 115.*] 3. FRAUDS, STATUTE OF (§ 129*)-PAROL CONTRACT AS TO LAND-PART PERFORMANCE. It is only where partial payment is accompanied with possession by the vendee that a contract for the sale of land, not in writing, will amount to such part performance as will take the contract out of the statute. Civ. Code 1895, § 4037. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. 88 287-292; Dec. Dig. 129.*] 4. VENDOR AND PURCHASER (§ 315*) - CONTRACT VOID UNDER STATUTE OF FRAUDSACTION BY VENDOR-EVIDENCE. The contract for the sale of the land not being in writing or enforceable as falling within any of the exceptions to the statute of frauds, the trial court did not err in excluding all the evidence offered to show the unaccepted tender of a deed to the land and demand for the purchase money, and in awarding a nonsuit. Graham v. Theis, 47 Ga. 479; Roughton v. Rawlings, 88 Ga. 819, 16 S. E. 89. [Ed. Note. For other cases, see Vendor and Purchaser, Dec. Dig. § 315.*] HILL, C. J. Judgment affirmed. GAINES v. STATE. (No. 2,289.) (Court of Appeals of Georgia. Feb. 10, 1910.) (Syllabus by the Court.) SUFFICIENCY OF EVIDENCE-ASSAULT TO RAPE. The decision of this case is controlled by the ruling of the Supreme Court in Dorsey v. State, 108 Ga. 477, 34 S. E. 135. Even if an assault was proved, the inference that the defendant intended to commit the offense charged is not exclusive of other hypotheses, which are equally well supported by the evidence. Error from Superior Court, Stephens County; J. J. Kimsey, Judge. Clarence Gaines was convicted of crime, Reversed. and brings error. B. F. Davis and N. R. C. Ramey, for plaintiff in error. W. A. Charters, Sol. Gen., for the State. RUSSELL, J. Judgment reversed. R. C. NEELY CO. v. BANK OF WAYNES- (Court of Appeals of Georgia. Feb. 10, 1910.) 1. PROPER VERDICT. The verdict directed by the court was the only legal verdict that could have been rendered in accordance with the admitted facts. 2. (Additional Syllabus by Editorial Staff.) Where, after a bank had been garnished, checks which had been drawn by the debtor prior to the date of garnishment were presented to it from other banks, and the debtor's account was overdrawn at the time, the fact that the bank paid the checks from funds furnished by another, under an agreement that the debtor's checks should be presented to him for payment, when the debtor had no funds on deposit to meet them, would not render the bank liable as garnishee for the amount so paid. [Ed. Note. For other cases, see Garnishment, Dec. Dig. § 56.*] 3. GARNISHMENT (§ 105*)-STATUS OF GAR NISHEE. A garnishee by operation of garnishment proceedings cannot be placed in any worse condition than he would be if defendant's claims against him were enforced by defendant him self. [Ed. Note. For other cases, see Garnishment, Cent. Dig. § 216; Dec. Dig. § 105.*] Error from City Court of Waynesboro; H. Error from City Court of Franklin; A. D. C. Hammond, Judge. Freeman, Judge. Garnishment by the R. C. Neely Company Action by J. A. E. Hill against W. F. against the Bank of Waynesboro. There was Phil a directed verdict for garnishee, and plain- | ther that Chandler was authorized to sign tiff brings error. Affirmed. the name of Lively to the checks, or that the money which Chandler used to pay the checks belonged to Lively, or that he had an interest in it. If Lively drew the checks himself, or authorized Chandler to do so for E. L. Brinson, for plaintiff in error. P. Johnston and J. H. Porter, for defendant in error. HILL, C. J. The Neely Company, as a judgment creditor of Lively, served summons of garnishment on the Bank of Waynesboro at the opening hour of business November 3, 1908. On receipt of the summons of garnishment the president of the bank instructed the bank officials to pay out no money to Lively or his order. The bank answered the garnishment, denying indebtedness, and the Nee ly Company filed a traverse. On the trial of the issue thus made the following undisputed facts were shown: On November 3, 1908, after the summons of garnishment had been served, several checks on the Bank of Waynesboro, apparently drawn by Lively, and dated November 2, 1908, were presented to this bank by the other banks of the city in the usual way of daily bank clearings, and were included in the clearings of that day. The books of the bank and the undisputed testimony of its officials show that on November 3, 1908, Lively had no funds in the bank, but was overdrawn $3.83, which overdraft he paid on that day, but deposited nothing then or thereafter. So, if the bank had then paid Lively's checks drawn November 2d, they would have been paid as overdrafts, and Lively would have been a debtor and not a creditor of the bank. It is insisted that the bank did pay these checks of the day before out of a deposit made by Lively, or for his benefit. This depends upon the correct conclusion to be deduced from the following uncontroverted facts: One Chandler had instructed the officials of the bank to present to him checks drawn by Lively whenever he had no funds on deposit to meet them, and this had been done on several occasions. When the checks were presented to the bank on November 3d, apparently drawn by Lively on November 2d, an official of the bank took the checks to Chandler and he paid them, and took them up. These checks were not charged up to Lively on the books of the bank, and the money paid by Chandler to the clerk of the bank credited by the bank either to Lively or Chandler. The payment of the checks by Chandler was treated as a cash transaction, but it did appear in the clearings of that day between the three banks of the city. In other words, as a matter of convenience in that day's clearings between the banks, the checks were apparently paid by the Bank of Waynesboro, when in fact they were paid by Chandler. It further appeared from the evidence that these checks were not drawn by Lively, nor with his knowledge, but were in fact drawn by Chandler in Lively's name. The burden is on the plaintiff in fi. fa., him, the reasonable inference to be drawn from the fact that Chandler paid the checks in cash is that Chandler would hold the checks as demands against Lively. As these facts do not appear, a reasonable inference from the evidence is that Chandler drew the checks in the name of Lively to pay his own obligations, and, being notified by the bank's agent that Lively's account was overdrawn, concluded to pay the checks himself. The clerk of the Bank of Waynesboro denies that he acted for the bank in collecting the money on the checks from Chandler. But, concede that he did; can it be said that the money so received from Chandler even for one moment constituted a liability of the bank to Lively? It would seem that in collecting the money on these checks the bank was acting for the payees of the checks, or for the other banks to whom the payees had indorsed the checks, and that therefore the bank held the money, not for Lively, but as trustee for the owners of the checks. Whether the money that was paid to take up the checks belonged to Lively or to Chandler, the moment it was paid to the bank neither had any further control over it or interest in it. Neither could maintain an action for it against the bank; for, the instant it was paid to the bank, the bank held it a trust for the holders of the checks, and was liable to them. If, therefore, under the facts, the Bank of Waynesboro is not liable to Lively, it cannot be liable to Lively's creditors. "It is a general rule that under no circumstances can a garnishee by the operation of garnishment proceedings be placed in any worse conditions than he would be if the defendant's claim against him was enforced by the defendant himself." Parker-Fain Grocery Co. v. Orr, 1 Ga. App. 630, 57 S. E. 1075; Drake on Attachment, § 462. The garnishing creditor cannot in any case occupy a better position with reference to the garnishee than that occupied by the latter's creditor. “If the defendant himself, suing the garnishee, could not get a judgment against him, then the garnishing creditor of the defendant cannot get a judgment against the garnishee." Singer Sewing Machine Co. v. Southern Grocery Co., 2 Ga. App. 545, 59 S. E. 473, and cases cited. What is here held is not at all in conflict with the decisions of the Supreme Court in Mayer & Lowenstein v. Chattahoochee National Bank, 51 Ga. 325, relied upon by the plaintiff in error. In that case it was held that where one deposits money in a bank to be used to pay certain creditors of the depositor, such creditors not being parties to ratified the same, the fund is the property of the depositor, and as such is subject to garnishment; in other words, that a deposit continues the property of the depositor until the bank has actually paid it out on account of the depositor, or has promised the person for whose use the money was deposited to pay it to him. But there must be an actual deposit in bank subject to the depositor's check at the time of the service of the summons of garnishment on the bank, or be tween that time and the time of the answer, to make the bank liable as garnishee. The distinguishing fact in the present case is that there was no deposit by the defendant when the summons of garnishment was served on the bank, and none afterwards. His checks drawn on the bank were not paid by the bank, but were paid by a third person not connected with the bank. If the clerk of the bank, after collecting the money from this third person, for the sole purpose of convenience in making clearance settlements between the banks, had entered on the books of the bank the amount so received by him to the credit of the defendant, who apparently had drawn the checks, any inference arising from such entry that the money belonged to the defendant would have been fully rebutted by the real truth of the case. We conclude that the learned judge of the trial court did not err in directing a verdict on the traverse in favor of the garnishee. Judgment affirmed. CALLAWAY v. MARTIN. (No. 1,864.) (Court of Appeals of Georgia. Feb. 10, 1910.) (Syllabus by the Court.) 1. INJUNCTION (§ 26*)-COURTS (§ 188*)-MUNICIPAL COURTS ENJOINING ACTION AT LAW REQUIRING AFFIRMATIVE EQUITABLE RELIEF. If, in a suit pending in a city court, the plaintiff sets forth a good cause of action at common law, and the defendant's defense is purely of an equitable character, calling for the granting of affirmative equitable relief, a court of equity will enjoin the suit in the city court, and itself assume jurisdiction of the cause; but, until stayed by the injunction, the city court should proceed according to the rules of law, and refuse to dismiss the case on the ground that it has no jurisdiction of the defense. [Ed. Note. For other cases, see Injunction, Cent. Dig. $$ 36, 58; Dec. Dig. § 26;* Courts, Dec. Dig. § 188.*] 2. NEW TRIAL (§ 108*) — GrouNDS-NEWLY DISCOVERED EVIDENCE. There was no error in refusing to grant a new trial on the ground of newly discovered ev idence. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*] 3. INSUFFICIENT ASSIGNMENTS OFf Error. None of the assignments of error are meritorious. Error from City Court of Reidsville; C. L. Morgan, Judge. Action by A. A. Martin against J. A. Callaway. Judgment for plaintiff, and defendant brings error. Affirmed. The plaintiff filed suit in the city court of Reidsville on two promissory notes, made by the defendant to one Kennedy. The defendant in his answer admitted the execution and ownership of the notes, and also admitted that they had not been paid, and set up by way of defense that he had executed a deed to real estate to Kennedy, and that Kennedy had made a deed back to him, and had placed the deed on record, but had not delivered it to him. He alleged that the plaintiff had purchased the notes from Kennedy and was seeking to collect them unjustly, and he contended in the answer, that the plaintiff should be enjoined from thus proceeding, but that, as the court had no power to grant such affirmative equitable relief, it "should wash its hands of the case," and dismiss the same for want of jurisdiction. The court, on demurrer, struck the answer, except as to attorney's fees. The plaintiff made due proof of notice entitling him to recover attorney's fees, and judgment was rendered in his favor for principal, interest, and attorney's fees. The defendant made a motion for a new trial, on the general grounds, and also set forth certain alleged newly discovered evidence tending to support the allegations of the portion of the plea which had been stricken on demurrer, and asked that a new trial be granted on account of this evidence. W. T. Burkhalter, for plaintiff in error. E. O. Collins and W. D. Martin, for defendant in error. RUSSELL, J. (after stating the facts as above). 1. The sole contention of the plaintiff in error as to the action of the court in striking the answer and in refusing to dismiss the petition is that the answer set up a state of facts calling for affirmative equitable relief, and that, since the city court had no power to grant relief of that character, it ought not longer to have retained jurisdiction of the case, but should have "washed its hands" of the entire matter. In support of this contention we are cited to the decision in Ragan v. Standard Scale Co., 123 Ga. 14, 50 S. E. 951, which holds merely that a city court has no power to grant affirmative be conferred on such a court by consent of equitable relief, and that this power cannot the parties. This, of course, cannot be controverted. But it does not follow that, where a suit at common law is filed in a city court, the defendant can come in and oust the court of jurisdiction by setting up facts calling for relief which the court has no power to grant. Where the plaintiff's petition sets up a good [Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. § 215;* Trial, Cent. Dig. §§ 683-685, 695.] 2. SUFFICIENT CHARGE. cause of action at common law, the defendant | the allegations were being read to the jury, take can plead in defense thereto any matter, legal the chances for a verdict, and sub-equently be heard to complain. or equitable, and the court has power to entertain the defense, provided it can do so without granting affirmative equitable relief. If the defense calls for the granting of relief of that character, the defendant's remedy is an application to a court of equity setting up the fact that he cannot make his defense in the court where the suit at common law is pending, and asking that the suit in that court be enjoined. The court of equity in such a case will enjoin the suit at law, and will itself assume jurisdiction of the entire cause and do complete justice between the parties. Butler v. Holmes, 128 Ga. 333, 57 S. E. 715; Gentle v. Atlas Savings Ass'n, 105 Ga. 410, 31 S. E. 544. Until stayed by the hand of equity, the court of law can proceed according to the rules of law, and does not have to "wash its hands" of a case simply because the defendant seeks to set up a defense unknown to the rules administered by it. Numerous excerpts from the charge are objected to as not containing correct statements of the law applicable to the evidence. The entire charge is not brought up. A careful examination of these excerpts in connection with the evidence fails to disclose any error, but, on the contrary, shows a clear, full, and correct exposition of the law on all the issues made by the evidence, and in some instances strongly favorable to the contentions of the plaintiff in error. 3. ASSIGNMENTS OF ERROR WITHOUT MERIT. The assignments of error on rulings on the admissibility of testimony are without merit. 4. APPEAL AND ERROR (§ 1002*) — REVIEW — VERDICT ON CONFLICTING EVIDENCE. When this case was here before, a nonsuit was reversed because the plaintiff proved that her husband was killed by the running of the defendant's train, and that therefore a presumption arose that the defendant was negligent in each and every respect alleged in the petition, and the burden was upon the company to dis2. Without giving other reasons why the prove all the proximate acts of negligence, or to show contributory negligence, etc. Ellenberg v. court did not err in refusing to grant a new Southern Ry. Co., 5 Ga. App. 389, 63 S. E. 240. trial on the ground of alleged newly discover- On the present trial this presumption of neged evidence, it is sufficient to say that this ligence was supported by some circumstantial alleged evidence merely tended to support the evidence and strongly rebutted by positive testimony. There was also evidence by the defendallegations of the answer which had been ant that the death of the plaintiff's husband was stricken. The demurrer to the answer ad- caused by his own contributory negligence in mitted the truth of the facts alleged, and walking upon the track on a dark, rainy night in a condition of intoxication. The jury believ called in question the legal sufficiency of ed the evidence of the defendant, and the trial those facts. Until this demurrer was dis-judge approved the verdict. In the absence of any material or prejudicial error of law, the posed of in the defendant's favor, it was verdict must be accepted as the truth. wholly unnecessary for him to make any proof of the matter pleaded. All the facts which his alleged newly discovered evidence tends to establish having been admitted by the opposite party, and that admission still standing of record, the court did not err in refusing a new trial because of the newly discovered evidence. 3. We have carefully examined the various assignments of error not specifically disposed of above, and find no reason for granting a new trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*] Error from City Court of Hartwell; W. L. Hodges, Judge. Action by Anne Ellenberg against the Southern Railway Company and others. Judgment for defendants, and plaintiff brings error. Affirmed. See, also, 5 Ga. App. 389, 63 S. E. 240. T. G. Dorough and Z. B. Rogers, for plaintiff in error. A. G. & Julian McCurry, for defendants in error. HILL, C. J. Judgment affirmed. HARLEY v. DAVIS. (No. 2,057.) (Court of Appeals of Georgia. Feb. 10, 1910.) (Syllabus by the Court.) LANDLORD AND TENANT (§§ 139, 217, 326, 331*) - LANDLORD AND CROPPER-INTEREST OF LANDLORD IN CROPS-TROVER. The evidence in this case leaves it doubtful whether the relation between the plaintiff and the defendant was that of landlord and tenant or landlord and cropper. If the former, the title to the crops made by the tenant on the place rented was in the tenant, subject to the landlord's lien for.rent and supplies. Wadley v. Williams, 75 Ga. 272. If the latter, the title No interest. to all the crops grown on the rented land re- | V. A. McFeeley one organ, for which we almains in the landlord until there has been an low him in trade on a piano $90. Balance actual division and settlement. De Loach v. Delk, 119 Ga. 884, 47 S. E. 204. Cable Company, tion of landlord and tenant existed, the land- per J. M. Johnson." The note contained the lord could not bring against the tenant bail usual stipulations with regard to reservation trover for the rent, as the title to the crops was of title in the vendor until payment of the in the tenant. If the relation of landlord and cropper existed, and there was not an actual purchase money, and also provided that no division and settlement made between the land- salesman was authorized to make any promlord and cropper according to the terms of the ise or agreement not embraced therein. Mccontract, the landlord could bring against the cropper an action of trover to recover the share Feeley paid the principal of the note, but reof the crop belonging to the landlord and of fused to pay the interest. The piano comwhich the cropper was in possession. A charge pany sued him for the interest, and a verwhich in effect instructed the jury that a di-dict was rendered in the justice's court in vision of the crops would prevent the landlord from recovering in an action of trover, although his favor. The piano company excepts to there had been no actual settlement between the the overruling of its certiorari. landlord and cropper, was erroneous. must be both division of and settlement to prevent such action. Civ. Code 1895, §§ 31293131; De Loach v. Delk, supra. There - Ex EVIDENCE (§ 450*) -PAROL EVIDENCE Where a written contract is embodied in two separate written instruments simultaneously executed and delivered, and the contract so embodied contains contradictory and ambiguous terms, parol evidence is admissible to explain the contradiction and remove the ambiguity. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2071; Dec. Dig. § 450.*] Error from Superior Court, Richmond County; H. C. Hammond, Judge. Action by the Cable Company against V. A. McFeeley. Judgment for defendant, and plaintiff brings error. Affirmed. McFeeley agreed to purchase a piano from the Cable Company and to give in exchange therefor an organ and $210 in money. He executed his note to the piano company for $210 principal, with interest from date at the rate of 8 per cent. per annum. At the same time and as a part of the same transaction, the agent of the piano company gave him the following receipt: "Received of Mr. Pierce Bros., for plaintiff in error. Strange & Evans and B. B. McCowen, for defendant in error. RUSSELL, J. (after stating the facts as above). It was frankly conceded by the agent for the piano company that no interest was to be charged. He testified that when he sent the note to the company he informed them of this fact. McFeeley also testified that it was expressly agreed that no interest was to be charged. It is contended by the piano company that the court erred in admitting this evidence, for the reason that it varied the terms of the written contract, to wit, the promissory note, which prescribed that interest would be paid from the date of the note. While it is generally true that, where a promissory note prescribes that it shall bear interest from date, parol evidence would be inadmissible to show a prior or contemporaneous agreement to the effect that it should bear interest only from maturity, still we are of the opinion that there was no error in admitting the parol evidence in the case at bar. In the first place, the contract was embodied in two writings, to wit, the note and the receipt. They were executed simultaneously as a part of one and the same transaction, and the receipt was just as much a part of the contract as the note itself. Compare Heitman v. Commercial Bank, 6 Ga. App. 584, 65 S. E. 590. See, also, Marietta Savings Bank v. Janes, 66 Ga. 286; Martin v. Monroe, 107 Ga. 330, 33 S. E. 62. written contract, therefore, contained contradictory and ambiguous recitals; in one part it being stipulated that interest should be paid, and in another part it being stipulated that no interest should be paid. According to a well-settled rule, parol evidence was admissible to explain this contradiction and to remove the apparent ambiguity. Civ. Code 1895, § 5202. Judgment affirmed. The For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |