duly made, the court's authority to make an equitable disposition of the case would, in view of all the facts, have been unquestionable.

3. There was, of course, no error in refusing to allow the defendant Milner to set up new grounds of defense after the judge had overruled his exceptions to the auditor's report. The action of the judge in overruling these exceptions was, in effect, the same thing as a verdict of a jury. The judge properly so regarded it, and we agree with him in holding that after verdict it is too late for a defendant to amend his pleadings.

4. The final judgment being, as above shown, unauthorized by the pleadings, we are constrained to reverse the judgment of the court below. But we shall give a direction which will preserve and make valid everything which was done down to the point of rendering the final judgment, if the plaintiff will appropriately amend its petition so as to render the same capable of supporting a judgment or decree administering the proper equitable relief to all the parties before the court, upon the facts reported by the auditor. If that is done the report and the order approving the same shall stand affirmed, and the court may proceed to enter a final judgment thereon. If such amendment is not made within the time limited in the direction we have given, the judgment is reversed generally, and a new trial ordered. We have not closely scrutinized the final judgment which the court actually rendered, and the trial judge, in case the plaintiff makes the requisite amendment as above indicated, will be left free to render another judgment, in terms and effect similar to the one now before us, or, if upon further consideration there should appear to be need for any correction, the same may be made. Judgment reversed, with direction. All the justices concurring, except COBB, J., absent for providential cause.

1. It is, in the trial of an action upon a promissory note, competent to prove that it was the last of a series of several renewals of a note originally given, and also to prove what was the consideration of the first note, without producing it or any of the renewal notes.

2. The charge of the court of which complaint is made in the motion for a new trial was, in the abstract, substantially correct, but it was barely authorized by the evidence; and the verdict, if warranted at all, should be set aside because of error in rejecting testimony.

3. The fact that a document tendered as a brief of evidence consisted, so far as related to the oral testimony, exclusively of questions and answers, did not render improper its ap

proval by the judge, nor will such approval be set aside by this court merely because the pa per contained some immaterial questions and answers; the judge certifying that it was made up from the official stenographic report of the trial, from which much immaterial matter was eliminated, and that in his opinion the efforts of counsel to make a legal brief sufficiently complied with the requirements of the law to render proper his approval of it as such. (Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by the Merchants' National Bank of Rome against J. M. Vandiver. Judgment for defendant, and plaintiff brings error. Defendant files a cross bill of exceptions. Judgment on main bill of exceptions reversed; on cross bill, affirmed.

C. N. Featherston, for plaintiff. Dean & Dean, for defendant.

Of

FISH, J. The Merchants' National Bank of Rome brought an action against Vandiver upon a promissory note signed by him, and payable to "J. King, Pt." It was conceded on both sides that Vandiver was an accommodation maker of this note, and the only issue at the trial was whether or not he signed for the accommodation of the bank, or for the personal accommodation of J. King, who was the bank's president. course, the bank could not recover from Vandiver on this paper if he had executed the same for its accommodation. It could, however, recover if King was the party accommodated, and as such had caused the bank to discount the note for his individual benefit. There was really no controversy as to the correctness of these propositions, but the case was seriously contested upon the issue of face above stated.

1. At the trial, Vandiver, who had been introduced as a witness in his own behalf. upon his cross-examination answered that the note sued on was given in renewal of a prior note, and that it was in fact the last of a number of renewals. His counsel objected to, and moved to rule out, this evidence, (1) "because there was nothing in the pleadings to justify it"; and (2) “because those prior notes had not been produced, and were the best evidence of such renewals." The court sustained the objection, and excluded this evidence. This, we think, was erroneous. In the first place, the plaintiff's counsel was evidently endeavoring to disprove the allegation in Vandiver's answer that the note was given for the accommodation of the bank, and to this end it was legitimate to show under what circumstances and upon what consideration the note was signed. If it was the last of a series of renewals, it was competent to prove this fact, and also to show that the note first given was for the accommodation of King, and not that of the bank. Secondly, the production of all the prior notes would not have shown that each was a renewal of another. What the bank wished to prove

was the independent fact that the note involved in the present case was the last of a series of renewals, and that the first note of all was made for King's accommodation; and it was not essential to this end that it should go into the contents of any of the prior notes, or in any manner contradict or vary anything therein contained.

2. The court, in substance, charged that if Vandiver executed and delivered the note in question to accommodate the bank, and solely for the purpose of lending his credit to the bank, it could not recover, and that this would be true even if King, without Vandiver's knowledge or consent, had the note discounted for his personal benefit. This charge was, in the abstract, substantially correct, but it was barely authorized by the evidence; for, according to Vandiver's own testimony, closely scrutinized, it is almost, if not quite, certain that in signing the original note he did so for the accommodation of King as an individual, and not for the accommodation of the bank. Even upon the assumption that there was doubt enough about this matter to justify the charge complained of, we are quite sure that a new trial should be granted because of the error committed in rejecting testimony, and also upon the general complexion of the case.

3. By a cross bill of exceptions the defendant in error excepted to a refusal by the judge to revoke his approval of the document which the bank had tendered as a brief of the evidence in connection with its motion for a new trial. This document consisted, so far as it related to the oral testimony, exclusively of questions and answers. As to the greater portion, it was legitimate and proper that it should have been in this form. It would have been impossible to have made a correct and intelligible report of Vandiver's testimony in any other manner, and his examination constituted a considerable portion of the oral evidence. As to the balance of the testimony, the dialogue form was not essential, but most of the evidence embodied in the brief was material and pertinent. There were, it is true, some immaterial questions and answers, but the judge certifies that the brief was made up from the official stenographic report of the trial, from which much immaterial matter

had been eliminated, and that in his opinion the efforts of counsel to make a legal brief sufficiently complied with the requirements of the law to render proper his approval of it as such. Our conclusion is that under the facts recited, and in view of the provisions of section 5488 of the Civil Code, the judge did not err in declining to revoke his approval of this brief of evidence. was by no means a perfect brief. It did, however, though entirely in dialogue form, approximate more nearly to being in a true sense a brief of evidence than 95 out of every 100 so-called briefs of evidence that are brought to this court. We will not, in

It

a proper case, hesitate to sustain an exception to a refusal by a judge to cancel his approval of an alleged brief of evidence, when it cannot be fairly considered a legal one. But we do not care to make counsel, who has succeeded as well in making a brief as our Brother Featherston did in this instance, the first victim of a strict enforcement of this rule. We will, however, take this occasion to once more remind our brethern of the bar that the practice of bringing here, as briefs of evidence, voluminous documents, filled with repetitions, and overloaded with all manner of immaterial things, greatly and unnecessarily adds to the burden of our labors, and oftentimes renders it difficult, if not impossible, for us to see a case in its true light. And we urge our brethern of the trial bench to exercise more care in approving such documents, and to require counsel to eliminate therefrom all that is really unnecessary. An observance of these suggestions will tend greatly not only towards relieving this court of needless toil, but also towards enabling it to do better and more accurate work. Whenever it clearly appears that a paper has been approved as a brief of evidence, and a judge adheres to an approval of it improperly granted, we will certainly administer the proper correction. Judgment on main bill of exceptions reversed; on cross bill, affirmed. All the justices concurring, except COBB, J., absent for providential cause.

WRIGHT v. SMITH et al. (Supreme Court of Georgia. April 12, 1898.) NEW TRIAL-DISQUALIFICATION OF JUROR.

Relationship of a juror, within the prohibited degrees, to the unsuccessful party in a case, although unknown to such party or his counsel until after verdict, is not sufficient ground for a new trial, especially in a case where the verdict was manifestly right.

(Syllabus by the Court.)

Error from superior court, Laurens county; John C. Hart, Judge.

Action between Georgia O. Wright and J. D. Smith and others. From the judgment, Wright brings error. Affirmed.

J. E. Hightower and F. H. Burch, for Wade & Wade, for deplaintiff in error.

fendants in error.

LEWIS, J. The law relating to the qualification of jurors has for its object securing a jury composed of men who stand, between the litigants, fair and impartial. A juror would naturally be inclined to favor a kinsman, rather than a stranger, in a contest between the two. Hence the law has declared that relationship of a juror to a party, within a certain degree, disqualifies him from service in a case. It has been repeatedly held by this court that relationship of a juror to a prevailing party in a case, unknown to the

opposite party or his counsel, is a ground for a new trial; but we are not aware of any decision by this court to the effect that a new trial should be granted because the juror was related within the prohibited degrees to the unsuccessful party in the case. As a general rule, which is almost universal in its application, no litigant has the legal right to complain of anything occurring on the trial of his cause which is presumed to inure to his benefit. There is certainly no presumption that a party is hurt because of having a kinsman upon the jury. In some of the decisions of this court, the ruling granting a new trial in a case on account of such a disqualification in one of the jury seems to be based on relationship to the opposite or prevailing party. For instance, in Moody v. Griffin, 65 Ga. 304, it was held: "The son of the first cousin of one of the parties to a suit is not a competent juror. If the relationship be not discovered until after the verdict in favor of the party related to him, this court will not reverse the grant of a new trial on that ground." Again, in Bullard v. Trice, 63 Ga. 165, it was held: "That one of the jurors who tried a case was a cousin of the successful plaintiff, which fact the defendants did not know until after the trial, is good ground for a new trial." It may be urged in reply that such juror is no juror at all, and that the verdict, not being rendered by a panel of twelve competent jurymen, is no verdict, and is absolutely void. But such a verdict is not an absolute nullity, but only voidable. It is not like a judgment rendered by a court without any jurisdiction of the person or subject-matter, which can be attacked by any person at any time it comes in his way. The parties can waive such a disqualification of a juror, and, even if not waived, if there is a failure to except to it the verdict and judgment rendered thereon would be valid, though every juror was related to the party in whose favor it was rendered. In 1 Thomp. Trials, § 116, it is declared: "Although there is considerable American authority, following the wake of a leading case in Maryland, in favor of the rule that the discovery that a disqualified person sat on the jury gives to the unsuccessful party the same right of new trial as the right which he would have had to challenge the juror if the discovery had been made before the jury were sworn, on the ground that such a person is no juror at all, a nonjuror,-and that the presence of a nonjuror vitiates the whole panel, yet the mass of American authority, grounded upon considerations of convenience and public policy, is opposed to this strict rule. It has been repeatedly held that a cause of challenge not discovered until after verdict, whether the case be civil or criminal,-as that some of the jurors were aliens, or not of the jury list as selected by the county authorities, or nonresidents, or not citizens of the county or state, or not possessed of the

statutory qualifications (as, for instance, less than twenty-one or more than sixty years of age), or related to the opposite party within the disqualifying degrees, or shown to have expressed disqualifying opinions as to the subject-matter of the trial, or otherwise subject to challenge,-is not per se a ground of new trial, though it may be such in the discretion of the court." A number of authorities from the supreme courts of several states are cited by this author, which, upon examination, we find support the text. This court, however, has not gone to the same extent, but we do not think the rigid rule adopted in this state should be extended by applying it to a case where the relationship is presumed to be in favor of, and not prejudicial to, the interests of the complaining party. Especially is this the case where any other verdict would have been manifestly wrong and unjust. In the case of Johnson v. Mayor, etc., 46 Ga. 80, it was held that some of the jurors in the panel from which the jury was selected were incompetent to try the case. Objection was made to their competency, and was overruled by the court below. Notwithstanding this fact, this court refused to reverse the judgment overruling the motion for a new trial on the ground that the verdict of the jury was right. That was a much stronger case than the one now under consideration; for there a challenge to the jurors on account of their disqualification was made, and besides the disqualification was prejudicial to the losing party, and yet the objection was overruled by the court. It is true, relationship was not involved, but this does not alter the principle, for the disqualification was as great in the one case as in the other. This court held in the case of Railroad Co. v. Cole, 73 Ga. 713, "Although the verdict may have been a proper one under the evidence, yet, if it was rendered by a jury of which two members were incompetent to act, it was no lawful verdict, and was properly set aside." And Justice Blandford, in his opinion, on page 715, doubts the correctness of the decision cited in 46 Ga. He draws this distinction, however, between the two cases, by saying, "In that case no new trial had been ordered by the court below, as in this case, and in this the two cases differ."

After a careful review of the entire record before us, we believe that the verdict rendered by the jury was not only right, and sustained by a decided weight of the evidence, but that any other verdict would have been manifestly unjust. It would seem, therefore, to be a mere farce in judicial procedure to set aside this verdict simply because of relationship of the juror to a party who failed, and ought to have failed, and thus take up the time of the court and country to try a case on an alleged error that worked no possible harm in the case, especially after the court below, in the exercise of its discretion, overruled the motion

for a new trial. Laws upon the subject of the qualification of jurors are presumed to have a reasonable purpose in view, and they should receive by the courts a reasonable construction. We think the proper rule in this state on the subject of a juror's relationship to be this: Where one of the jury is related to the party in whose favor the verdict is rendered, the verdict is voidable at the election of the opposing party, provided the relationship was not known to him until after trial; but a party will not be heard to complain of his relationship to a juror, especially in a case where the verdict manifestly speaks the truth.

We have not noticed the other grounds of the motion complaining of errors in the charge, for the reason that they are without merit, when considered in the light of the facts disclosed by the record. Judgment affirmed. All the justices concurring, except COBB, J., absent for providential cause.

SHANNON v. BERRY. (Supreme Court of Georgia.

March 25, 1898.) APPEAL-REVIEW-NEW TRIAL.

In view of the law laid down in this case at the March term. 1896 (25 S. E. 514, 98 Ga. 459), and of the evidence introduced at the last trial, the verdict for the defendant was warranted, and there was no error in denying a new trial.

(Syllabus by the Court.)

Error from city court, Floyd county; G. A. H. Harris, Judge.

Action by F. T. Shannon against I. J. Berry. Judgment for defendant, and plaintiff brings error. Affirmed.

C. A. Thornwell and Fouché & Fouché, for plaintiff in error. Wright & Hamilton, for defendant in error.

PER CURIAM. Judgment affirmed.
COBB, J., absent for providential cause.

HENDERSON v. HOPPE. (Supreme Court of Georgia. March 23, 1898.) WRIT OF ERROR-DISMISSAL WITHOUT PREJUDICE.

Where one person brings an equitable petition against another employed by him as a contractor to build a house, and alleges therein that the latter has violated the terms of his contract in divers particulars, and prays that he be required to vacate and turn over to petitioner the premises and all material thereon, and be enjoined from interfering with him in the further prosecution of the work; and it appears that, upon the passage of an order granting the relief prayed for, a bill of exceptions was sued out to this court, but that no supersedeas was obtained, and it further appears, upon the call of the case in this court, that petitioner had, since the passage of the order above referred to, completed the house, and was occupying the same,-held, that this court will not undertake to decide the questions made

in the record, but will dismiss the writ of error without prejudice.

(Syllabus by the Court.)

Error from superior court, Cobb county, George F. Gober, Judge.

Petition by L. D. Hoppe against C. E. Henderson for an injunction. From a judgment for plaintiff, defendant brings error. Dismissed.

Morris & Green and Clay & Blair, for plaintiff in error. Enoch Faw and J. Z. Foster, for defendant in error.

COBB, J. Hoppe brought his petition against Henderson, a contractor engaged in building a house upon the plaintiff's premises, for an injunction to require the defendant to desist from further proceeding with the work, and to require him to vacate and turn over to plaintiff the premises and all material thereon, plaintiff alleging that the contract under which the work was to be done was being violated by defendant in divers particulars set out in the petition. The defendant answered, denying the material allegations of the petition. The court, after hearing evidence, passed an order as follows: "It is ordered that the defendant be enjoined and restrained from interfering with the petitioner or his superintendent, from proceeding to finish and complete said house under the terms of the contract, or from in any way interfering therewith. This order is conditional upon the payment to defendant by petitioner of all of the contract price, except five hundred dollars, previous to taking possession thereof." To the passage of this order the defendant excepted.

When the case was called in its order in this court, an affidavit of the defendant in error was submitted, which in substance showed that no supersedeas was obtained when the bill of exceptions was certified, and that, since the granting of the relief prayed for, the defendant had completed the house, and had done everything which was to have been done by Henderson under the contract, and that he was in possession of the house, and there was no further work to be done. Upon this affidavit being submitted, a motion was made to dismiss the writ of error, upon the grounds that it would be useless to decide the questions involved in the record, there being nothing for the judgment of this court to operate upon if the judg ment was reversed; that, if it be determined by this court that the injunction should not have been granted, it would be impossible to restore the status as it was at the time that the injunction was granted, unless the house should be altered by order of this court in such a way as to put it in the same condition, and to make it present the same appearance as it did at the time that the litigation began. This, of course, would not be done, even if the court has the power to make such an order. While the plaintiff in error does not 'n terms admit the statement

made in the affidavits of defendant in error, still the counter affidavit filed does not deny the substantial facts therein contained. We think this brings the case clearly within the previous rulings of this court, and are therefore constrained to dismiss the writ of error. See Railroad Co. v. Blanton, 80 Ga. 563, 6 S. E. 584; Thornton v. Investment Co., 97 Ga. 342, 22 S. E. 987; Cranston v. Bank, 97 Ga. 406, 23 S. E. 822. We desire, however, to be distinctly understood as ruling simply that we will not undertake to decide the question raised by the pleadings and the evidence in this case. Nothing in this judgment dismissing the writ of error is to be construed in any way as affecting the rights of the parties to this litigation. It does not operate as an affirmance of the judgment granting the injunction, and is not intended to decide in any way that the injunction was properly granted. If the injunction was properly granted, then the plaintiff in error has not been hurt. If the injunction was improperly granted, and the plaintiff in error has been damaged on account of the plaintiff's suing it out, the plaintiff in error is entitled to whatever remedies the law may give him against the defendant in error to recover the damages sustained by him. Whether this should be done in a separate suit, if there is a right of action, or whether, by amendment to the answer, in the nature of a cross bill, appropriate relief can be obtained against the defendant in error in the present case, are questions which we do not now decide. What we do decide, however, is that the judgment dismissing this writ of error is not an adjudication of any question growing out of the controversy between the parties to the case. Writ of error dismissed, with direction. All the justices concurring.

MULLIS et al. v. NICHOLS et al. (Supreme Court of Georgia. March 24, 1898.) INJUNCTION-BREACH OF CONTRACT-CARRYING ON BUSINESS.

There was, in view of the conflicting evidence appearing in the record, no abuse of discretion in granting an interlocutory injunction restraining the defendants from carrying on a particular business in violation of their alleged agreement not to do so; the same being, as to time and place, and in other respects, apparently reasonable. In such a case the rights of the plaintiffs, upon the assumption that the evidence supported their contentions of fact, could not be suitably protected by a bond, because the damages arising from the defendants' breach of their contract would not be readily capable of ascertainment.

(Syllabus by the Court.)

Error from superior court, Pulaski county; C. C. Smith, Judge.

Action by Nichols & Buchan and others against J. A. Mullis and others. From an order granting an interlocutory injunction, defendants bring error. Affirmed.

L. C. Ryan, W. L. & Warren Grice, and Glenn, Slaton & Phillips, for plaintiffs in error. Geo. Bright and J. H. Martin, for defendants in error.

PER CURIAM. Judgment affirmed.
COBB, J., absent for providential cause.

MUNROE v. HAAS. (Supreme Court of Georgia. March 24, 1898.) LIABILITY OF WIFE-SURETY FOR HUSBAND.

Where, upon the trial in a justice's court of an action upon a promissory note signed by a husband and wife, there was affirmative and uncontradicted evidence that the latter. in signing, contracted as a surety only, which fact was known to the agent of the payee by whom the note was taken, a verdict against the wife was contrary to law, and the superior court erred in not setting it aside on certiorari. (Syllabus by the Court.)

McCONNELL, Sheriff, v. WEST. (Supreme Court of Georgia. March 24, 1898.)

RULE AGAINST SHERIFF-APPEAL.

1. A sheriff who has been ruled for a failure to make the money due upon an execution placed in his hands cannot convert the proceeding thus instituted against him into a rule against himself and a third person, not an official, by having the latter made a co-defendant to the rule.

2. The refusal of the trial court to permit such a thing to be done cannot be brought by the sheriff to this court for review, when no final judgment has been rendered against him, and it also appears that the movant of the rule was not made a party to the bill of exceptions.

(Syllabus by the Court.)

Error from superior court, Floyd county: W. M. Henry, Judge.

Rule on the petition of W. J. West against J. P. McConnell, sheriff, for failure to make money due on execution. From an order refusing to make a third person, not an official, a co-defendant, defendant brings error. Writ dismissed.

Henry Walker, for plaintiff in error. McHenry & Nunnally, for defendant in error.