is upon the one who asserts a thing is a forgery to prove it."

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by James Cuthbert against James L. Anderson, administrator, and others. Plaintiff had judgment, and defendants bring error. Reversed.

Ryals & Stone, for plaintiffs in error. H. S. Strohecker, for defendant in error.

LITTLE, J. 1. In support of his cause of action, the plaintiff, without objection on the part of the defendants, and after introducing testimony tending to prove its execution, introduced in evidence a paper purporting to have been signed by Strong, the intestate of one of the defendants to this action, containing an acknowledgment, as contended by plaintiff, that he had bought the particular lot in controversy. The defendants attacked this paper, and denied that the signature affixed thereto was the genuine signature of Strong, but alleged that the same was a forgery. Notwithstanding this paper had been admitted in evidence on testimony tending to prove its execution, the defendants had the right to attack the genuineness thereof, and introduce in rebuttal evidence tending to show that the signature attached to the paper was not that of the person by whom it was alleged it was executed, but that the same was a forgery. The plaintiff based his right to recover upon an alleged verbal contract with the defendants, whereby he had purchased and paid for a specified lot.

The defendants contended that the lot purchased by the plaintiff was not in fact the lot for which his action was brought, but was another and different lot. As tending to prove and identify the lot actually purchased by plaintiff as being the one for which he was contending, the plaintiff introduced in evidence the paper above referred to. While a failure on the part of the defendants to object to the introduction of the paper in evidence would amount to a waiver of the necessity of proof of its execution for the purpose of its admission in evidence (Bowen v. Frick, 75 Ga. 786), their failure so to object did not cut them off from attacking the genuineness of the paper after it had been admitted in evidence. This principle has been recognized and applied by this court in cases in which attacks were made upon the genuineness of deeds. By section 3628 of the Civil Code it is provided that "a registered deed shall be admitted in evidence in any court in this state without further proof, unless the maker of the deed, or one of his heirs, or the opposite party in the cause will file an affidavit that the said deed is a forgery, to the best of his knowledge and belief, when the court shall arrest the cause and require an issue to be

made and tried as to the genuineness of the alleged deed." In the case of Hollis v. Stevens, 36 Ga. 463, a registered deed was put in evidence and read to the jury, and, in the absence of any affidavit of forgery, the opposite party introduced evidence attacking the genuineness of the deed; and upon the exception that the court erred in admitting this testimony, because no affidavit of forgery had been filed, this court ruled that the provisions of the Code section above quoted afforded a cumulative remedy, and that a party alleging a deed to be a forgery is not obliged to make the affidavit; that, after the deed had been admitted in evidence, he might introduce any competent evidence to impeach it; that, if he could successfully attack the deed without making the affidavit, it was his right to do so. In the case of Sibley v. Haslam, 75 Ga. 490, after citing the case above referred to, it was held that even after the deed, whether ancient or modern, had been read to the jury by reason of its registry, it might be attacked for forgery by any competent evidence. So, too, in the case of Jaques v. Stewart, 81 Ga. 81, 6 S. E. 815, the court held: "Whenever a plaintiff seeks to show title in himself by deed or other writing, the defendant has a right to attack the instrument, and show that it is not a title, and that it is void for usury or other cause; and he can do this without filing a plea to that effect. Especially is this true where the instrument relied on is not set out or mentioned in the declaration, and the defendant could not know or anticipate by what means plaintiff expected to prove his title." An exception to the general principle here announced is made by the Code, with respect to a paper or instrument in writing which is sued upon, or which is the foundation of the action. This exception is contained in section 3701 of the Civil Code, which reads as follows: "A party may deny the original execution of the contract sought to be enforced or its existence in the shape then subsisting. In either event, if the contract be in writing and so declared upon, the denial must be on oath and filed at the first term after the service is perfected." And in section 5066 it is provided that "no person shall in his plea or answer be permitted to deny any deed, bill, single or penal bond, note, draft, receipt, order, or other instrument in writing, which is the foundation of the action, unless he shall make affidavit of the truth of such plea or answer at the time of filing the same." The paper in question not falling within this exception, the evidence submitted by the defendants tend. ing to impeach the same was competent, and the court committed no error in allowing it to be considered by the jury.

2. It is contended by the plaintiffs in error that the court erred in charging the jury, upon the issue raised as to the genuineness of the paper introduced, as follows: "In

support of the plaintiff's claim that it was the front lot he bought, the plaintiff claims to have introduced the paper signed by Strong, acknowledging that it was the front lot he bought. The defendant denies that, and says that it is not Strong's signature, but a forgery. The jury will pass upon the question, under the evidence; taking in that connection the testimony of the witness, as well as all the specimens of handwriting which will be out before you, which you may examine for the purpose of determining whether or not the paper they submit was the true paper signed by Strong, or a forgery. If you conclude it to be a forgery, you will disregard it entirely as having any weight with reference to the facts it proved. If it is not a forgery, of course it is entitled to credit. Whether it is a forgery or not, and whether it is a genuine paper or not, is an issue you will pass upon as any other issue. Of course, it is needless for me to tell you that the law does not presume a forgery. The presumption is that, when a paper is proven, it speaks the truth. The presumption of law is against the forgery, and the burden is upon one who asserts a thing is a forgery to prove it." As a general rule, all private writings produced in evidence must be proved to be genuine. 1 Greenl. Ev. § 557. Section 5239 of the Civil Code provides that "generally the original writing must be produced and its execution proved." Even in the case of a registered deed, where an affidavit of forgery is filed, the party offering the deed is not then assisted by the registration thereof, but the burden of proving the same genuine rests upon him. De Vaughn v. McLeroy, 82 Ga. 687, 10 S. E. 211, citing Hanks v. Phillips, 39 Ga. 550; Mills v. May, 42 Ga. 623; Hill v. Nisbet, 58 Ga. 586; Holland v. Carter, 79 Ga. 139, 3 J. E. 690. It is manifest from these authorities that the law raises no presumption in favor of the genuineness of a written instrument, but simply leaves the question as a matter of fact to be ultimately found by the jury upon proofs to be adduced by the parties to the cause in which the instrument is offered in evidence. The law presumes nothing whatever until the signature to the instrument is proven genuine. This being done, the law then presumes that the instrument, in all its parts, is genuine, also, when there are no indications to be found upon it to rebut such a presumption. Pullen v. Hutchinson, 12 Shep. 254; Lefferts v. State, 49 N. J. Law, 27, 6 Atl. 521. If, therefore, the party offering the paper in evidence had introduced sufficient evidence tending to prove its genuineness to cast the burden upon the opposite party, or if, by reason of the nature of the latter's defense, the burden of showing the falsity of the paper rested upon him, in either event this burden would be carried without any presumption in favor of the genuineness of the paper. Hence the

1. In a suit by a landowner against a municipal corporation for damages alleged to have resulted from grading its streets in such manner as to leave the land inaccessible by ready approach from the street, it was error for the court to charge that if "the plaintiff could still have met the change in the grade of the city's streets by merely changing the grade of her own street, and, in consequence, the market value of the property was not decreased, then the plaintiff in this case would not be entitled to recover anything from the city."

2. In such a suit, where the change in the street complained of by the plaintiff was made several months prior to bringing the action, and several years prior to the trial of the case, it was error for the court to admit testimony and to charge the jury thereon as to a general plan contemplated by the city, which, if carried out in this particular instance, would make further changes in the sidewalk, and would diminish the damages to plaintiff's property alleged to have occurred.

3. Other than as above indicated, there was no material error in the rulings complained of. (Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by Julia R. Estes against the mayor, etc., of the city of Macon, to recover damages for injuries to her property caused by changing the grade of the streets. Defendants had judgment, and plaintiff brings error. Reversed.

Estes & Jones and Hardeman, Davis & Turner, for plaintiff in error. Minter Wimberly, for defendants in error.

SIMMONS, C. J. 1. The plaintiff in error (the plaintiff below) owned a lot of land in the city of Macon, Ga., containing several acres, and fronting on a certain street. The front of this lot, on the street, was narrow, while the rear of it was broad. The owner of the lot contemplated opening a street through it, in order that she might divide it up into accessible building lots. As the city street first stood, an avenue could have been opened through this property to the street; and the plaintiff had perfected her plans for opening such an avenue, and putting the rear of her land upon the market. The municipal authorities, however, changed

the city street by moving the roadway nearer to plaintiff's lot, and cutting down the grade of the street so as to leave her lot upon a bluff. By reason of this change, the sidewalk, which was on the grade of the lot line, was above the street, leaving plaintiff's lot inaccessible to vehicles at the point where the avenue through the lot was to abut on the street. In the trial of the case, the court instructed the jury that if "the plaintiff could still have met the change in the grade of the city's streets by merely changing the grade of her own street, and, in consequence, the market value of the property was not decreased, then the plaintiff in this case would not be entitled to recover anything from the city." We think this charge was, under the facts, erroneous. Under the constitution of this state, the public cannot take or damage private property without giving therefor just compensation. The municipal authorities had so changed the grade of the street as to leave the plaintiff's lot much higher than the street, and had thereby rendered it inaccessible to vehicles. The judge, in effect, charged the jury that, if the plaintiff could grade her street so as to put it on a level with the city's street, she would not be entitled to recover, even though she was put to expense in so doing. The record shows that, before the municipal authorities graded this street, the lot was accessible. After the grading of the street, it was to some extent inaccessible. If the city damaged the property, the owner is entitled to just compensation. In the case of City Council v. Schrameck, 96 Ga. 426, 23 S. E. 400, it appeared that the municipal authorities had raised the grade of a street so as to leave Schrameck's property below the level of the street. This improvement of the street rendered it necessary for Schrameck to fill in his lot, and bring it up to the grade established by the city. This court held that he was entitled to recover, and was entitled to give in evidence "the necessity of filling in the lot and raising the buildings thereon, with the probable cost of such work; not as furnishing a reason for the allowance of such cost as an independent item of special damage, but as a circumstance throwing light upon the general question of the diminution of market value." The facts of the present case are the reverse of the case just cited. There the municipal authorities raised the street so as to make it necessary for Shrameck to fill in his lot. Here the street has been lowered, and the roadway placed nearer plaintiff's lot, so as to make it necessary for her to cut down her approaches in order to make the property accessible. The principle is the same. If the jury should find on the next trial that the change in the grade of the eity's streets render it necessary for plaintiff to cut down her lot or her street so as to make her lot accessible, she would be entitled to recover, and she could show the cost of

the work, not as an independent item of special damage, but as throwing light upon the question of how much she had been damaged by diminution of the market value of her property occasioned by the change in the grade of the city's streets. The judge seems not to have taken this view of the case, but charged that if she could make her lot conform to the grade of the street, and her lot was therefore not decreased in market value, she would not be entitled to recover. 2. Within a few months after the change of the grade of the city street, the plaintiff brought her action for damages against the city. It seems that her case was not tried until several years had elapsed after the change of grade, and after the institution of her suit. Upon the trial, the city engineer was allowed, over the objection of plaintiff, to testify as to the present general plan of the city as to grades, etc., and that, if this plan were carried out in this instance, the approach to plaintiff's property would be made easier. The court charged, in substance, that if the general plan adopted by the city would be carried out, and if, in consequence of that fact, there was no decrease in the market value of plaintiff's property, she would not be entitled to recover damages for the change of grade. It seems from the record that this general plan had not been applied to this particular street, nor was there any evidence of any intention on the part of the authorities to do so, though so long a time had elapsed between the time of the change of grade and the time of the trial. Under the charge of the court, the jury was allowed to consider this general plan and the changes which would be made by a carrying out of this plan, for the purpose of affecting damages incurred by the former changes in the location and grade of the street. In other words, the jury was allowed to consider a plan which had never been carried out in regard to this particular property; to consider whether, if this plan should be applied to this lot, the latter would be diminished in value by reason of the changes already made and the changes then to be made; and to find that the city would at some time carry out this plan, and that the lot would not be lessened in value, and that the plaintiff had therefore not been damaged. This case should have been tried as to damage alleged to have been sustained by reason of the changes complained of in the plaintiff's declaration, and not upon the theory that the city might ultimately change the grade of the sidewalk so as to decrease the damage done to the plaintiff's property.

3. The judgment of the court below is reversed, and a new trial granted, solely upon the grounds above discussed. Other than as indicated, there was no material error in the rulings of which complaint is made. Judgment reversed. All the justices concurring.

REID v. STATE.

(Supreme Court of Georgia. Feb. 28, 1898.) CRIMINAL LAW-NEW TRIAL-NEWLY-DISCOVERED

EVIDENCE.

There was no error of law committed at the trial, the newly-discovered evidence was cumulative and impeaching, the evidence warranted the verdict, and the trial judge did not err in refusing a new trial.

(Syllabus by the Court.)

Error from superior court, Schley county; Z. A. Littlejohn, Judge.

George Reid was convicted of a crime, and brings error. Affirmed.

J. R. Williams, W. H. McCrory, and A. Fort, for plaintiff in error. F. A. Hooper, Sol. Gen., for the State.

PER CURIAM. Judgment affirmed.

HENDLEY et al. v. WILSON. (Supreme Court of Georgia. Feb. 28, 1898.)

APPEAL-REVIEW-CONFLICTING EVIDENCE. The evidence admitted over the plaintiff's objection was relevant to the issue involved. The charges complained of fairly submitted one side of this issue to the jury, and there is no complaint that the other side of it was not submitted in appropriate language. The evidence, though conflicting, warranted the verdict, and there was no error in denying a new trial.

(Syllabus by the Court.)

Error from superior court, Bulloch county; R. L. Gamble, Judge.

Action between Susan Hendley and others against J. S. Wilson. From the judgment for defendant, Hendley and others bring error. Affirmed.

Cason & Everitt, for plaintiffs in error. Groover & Johnston, for defendant in error.

No error of law being complained of, and the evidence being sufficient to authorize the verdict, the judgment of the trial judge in overruling the motion for a new trial will not be disturbed.

(Syllabus by the Court.)

Error from superior court, Madison county; S. Reese, Judge.

Bill Goss was convicted of a crime, and brings error. Affirmed.

John E. Gordon and John J. Strickland, for plaintiff in error. R. H. Lewis, Sol. Gen., J. M. Terrell, Atty. Gen., and Harrison & Bryan, for the State.

PER CURIAM. Judgment affirmed.

2. Under the facts of the present case, it was not a proper exercise of such discretion to tax against the plaintiff in error, who was entirely free from either fault or liability, any portion of the expenses of the litigation.

(Syllabus by the Court.)

Error from superior court, Hall county; J. J. Kimsey, Judge.

Petition by Mrs. K. S. Hamilton against Mrs. C. W. Du Pre and another to restrain the sale of certain property seized upon a distress warrant. From a judgment decreeing the property exempt from seizure, and taxing costs against her, plaintiff brings error. Reversed.

Hubert Estes, J. B. Estes, and D. S. Craig, for plaintiff in error. Dean & Hobbs, for defendants in error.

LUMPKIN, P. J. A distress warrant in favor of Mrs. Du Pre was levied upon certain personal property, including a horse, belonging to Mrs. Hamilton. Being unable to give security for the eventual condemnation money, the latter filed an equitable petition against Mrs. Du Pre and the constable who made the levy, praying that he be restrained from selling the property. In their answer, the defendants prayed for a receiver, and the court appointed the constable, and directed him to sell the horse after advertising as for constables' sales. The animal was not, however, sold under this order, but, in pursuance of an agreement of counsel, was kept for a time, without cost, by certain persons, who subsequently returned the horse to the receiver, and he, after obtaining another order of sale, sold the horse for $50.50. Upon the trial of the main issue, there was a verdict for Mrs. Hamilton, and it was thereupon adjudged that she was not liable to Mrs. Du Pre for any rent, and that her property which had been seized by the constable was not subject to the distress warrant. The court, in taxing the costs, nevertheless adjudged that Mrs. Hamilton was liable for the receiver's fees and expenses, including $20 cash paid for feeding the horse, $15 for the receiver's services, and the same amount for his attorney's fees, and also for $18 paid for storing and moving the other personalty upon which the constable had levied. These several sums amounted to $68, and the judgment further provided that the $50.50 realized from the sale of the horse be applied in part settlement thereof, and that the receiver sell enough of the property of Mrs. Hamilton left in his hands to make

the balance of $17.50, unless she paid the money within 10 days. She complains that the court erred in rendering this judgment, and in this position we unhesitatingly con

cur.

Though this was an equitable proceeding, a decidedly inequitable result was reached. Mrs. Hamilton was entirely without fault or blame. She did nothing which was not absolutely essential to the protection of her rights, and we are therefore of the opinion that she should not be taxed with any of the costs or expenses of the litigation. To require her not only to have her horse sacrificed at forced sale, but also to adjudge that her other property be sold to pay the balance of the receiver's fees and expenses, was to impose upon her a hardship which the facts of the case did not warrant.

In equitable cases, it is, under section 4850 of the Civil Code, the duty of the judge to determine upon whom the costs shall fall; but he has no arbitrary power in this respect. On the contrary, he should exercise a sound discretion in deciding by whom the costs shall be paid. We do not think this discretion was properly exercised in the present case. Judgment reversed. All the justices concurring, except COBB, J., absent for providential cause.

COOPER v. STATE.

(Supreme Court of Georgia. Feb. 28, 1898.) CITY COURT-ERROR-SERVICE OF BILL OF EXCEP

TIONS.

1. The effect of the passage of the act of December 16, 1897 (Acts 1897, p. 484), amending the act creating the city court of Gwinnett, and locating that court in the city of Lawrenceville, was to change the character of that court; and from the date of the passage of this act it became a city court, within the meaning of that phrase as it is used in the constitution.

2. The act establishing the city court of Gwinnett declaring that the county solicitor provided for in that act shall "represent the state in all cases in said city court in which the state shall be a party, and shall perform therein such other duties as usually appertained to the office of solicitor general, as far as the same are applicable," service of a bill of exceptions sued out to bring a case to this court must be had upon such county solicitor, and, when it appears that the only service had is upon the solicitor general of the circuit, the writ of error will be dismissed.

(Syllabus by the Court.)

Error from city court of Gwinnett; Sam. J. Winn, Judge.

Jesse Cooper was convicted of assault and battery, and brings error. Dismissed.

John R. Cooper and N. L. Hutchins, Jr., for plaintiff in error. C. H. Brand, Sol. Gen., and F. F. Juhan, for the State.

COBB, J. Cooper was indicted for the offense of assault and battery by the grand

jury of Gwinnett county. The indictment was transferred to the city court of Gwinnett for trial. Upon the trial in the latter court, on the 13th day of December, 1897, he was found guilty of a battery. On December 14, 1897, he filed his motion for a new trial, which was by consent set for a hearing on the 27th day of December. On the latter day an order was passed overruling the motion for a new trial. On the same day he tendered his bill of exceptions to the presiding judge, and, upon the same being certified, service was had upon the solicitor general of the circuit. When the case was called in this court a motion was made to dismiss the writ of error on the ground that there had been no legal service of the bill of exceptions; that service should have been had upon the solicitor provided for in the act establishing the city court of Gwinnett, and not upon the solicitor general of the circuit.

Two questions are presented for adjudication by the record before us: First. Has this court jurisdiction of the writ of error from the city court of Gwinnett? Second. If such jurisdiction exists, then upon whom should service of such writ of error be made? The city court of Gwinnett was established by an act approved December 14, 1895 (Acts 1895, p. 384), the first section of the act declaring that "the city court of Gwinnett is hereby established and created with civil and criminal jurisdiction over the whole county of Gwinnett, this act to take effect on the passage thereof." It was provided in this act that "a writ of error shall be directed from said city court to the supreme court of this state, upon a bill of exceptions filed under the same rules and regulations as govern and control the issue of wits of error and filing of bills of exceptions in the superior courts of this state." Also that "the judge of said city court shall have power to grant a new trial in any case, civil or criminal, in his court upon the same terms and conditions and under the same laws and regulations in every respect governing the granting of new trials in the superior courts. All rules of pleading, practice, and procedure governing motions, rules nisi and other proceedings in new trials in the superior courts shall apply to and govern the same in said city court." This act not in terms establishing a city court in a city, the court thereby created was not one from which a writ of error would lie to this court, nor was it a court authorized by law to grant new trials. Civ. Code, §§ 5836, 5847; Stewart v. State, 98 Ga. 202, 25 S. E. 424; Telegraph Co. v. Jackson, 98 Ga. 207, 25 S. E. 264. By an act approved December 16, 1897, the first section of the act creating the city court of Gwinnett was amended, so as to make it read as follows: "A city court is hereby established and created to be located in the city of Lawrenceville, with civil and criminal jurisdiction over the whole county of Gwinnett, this act to take