cannot be treated together without great liability to confusion and error. Litz v. Goosling (Ky.) 21 Lawy. Rep. Ann., note on page 128 (s. c. 19 S. W. 527), supra. Thus, in an agreement for a lease there was inserted a further agreement that the landlord would, if required, within two years, sell the tenant the fee of the land at a certain price, at the tenant's option. The lease was forfeited by reason of a breach of the agreement to insure, and the court held that the agreement to sell was a separate agreement, and would be specifically enforced, notwithstanding the forfeiture of the lease. Green v. Low, 22 Beav. 625. Such a contract is subject to all the rules governing other contracts, and in general must be supported by a consideration. Coleman v. Applegarth, 68 Md. 21, 11 Atl. 284. Where a consideration is paid for the option, however, the party making the offer cannot lawfully withdraw it. If the offer is in writing, for a valuable consideration, and time is given within which it shall stand open for acceptance, such option, during the time specified, is irrevocable. Weaver v. Burr (W. Va.) 8 S. E. 743; Bradford v. Foster, 87 Tenn. 4, 9 S. W. 195; Linn v. McLean, 80 Ala. 360; Souffrain v. McDonald, 27 Ind. 269; Herrman v. Babcock, 103 Ind. 461, 3 N. E. 142. In the case at bar, the defendants in error, in consideration of one dollar paid to them, gave to Kerce and his assigns, by an instrument in writing, the right, on payment by him or them at any time within 200 days of the sum of $200 in cash, to demand and have from the defendants in error their deed, containing a general warranty, conveying to him or his assigns all mineral interests in certain lands described. Section 3657 of the Civil Code provides that a consideration is valid if any benefit accrues to him who makes the promise, or any injury to him who receives the promise; and by section 3659 of that Code it is declared that mere inadequacy of consideration alone will not void a contract. Indeed, the instrument relied on in this case being under seal, a consideration is imported, which the promisors would be estopped to deny. Weaver v. Burr (W. Va.) 8 S. E. 743; Donnally v. Parker, 5 W. Va. 301; Civ. Code, § 3656. It appears, therefore, that the defendants in error did make a contract in writing with Kerce, by which they bound themselves to sell and convey to him or his assigns the mineral interests in certain lands which they owned, on the payment to them, within 200 days from January 16, 1896, of the sum of $200, and that this undertaking was founded on a valuable consideration paid to them by Kerce, and consequently was a valid and binding contract upon the landowners to convey to Kerce or his assigns upon the payment or tender by either of the sum named at any time within the limited period. The next inquiry is, will equity decree a specific performance of the contract on the part of the defendants in error, and a cancel、 lation of the deed made by them to Willis and Saylor. If specific performance will be decreed, it may be taken as a matter to course that the conveyance in favor of Willis and Saylor will be canceled, inasmuch as the petition charges that they purchased with actual notice and knowledge of the rights and equities of Kerce and his assignee. It appears that the plaintiff, as the assignee of Kerce, with the knowledge and consent of the defendants in error went upon the lands, worked thereon to locate and develop the minerals, expended money in the venture, discovered valuable minerals, and within the time limited tendered to the defendants in error the $200, and requested that conveyance be made to him. They refused to accept the money and to execute the deed; and, in bringing this petition for specific performance, the plaintiff makes a continuing tender of the amount, and alleges that the defendants are unable to respond in damages adequate to cover the injuries resulting to plaintiff, by reason of their breach of the contract, and that, unless specific performance is decreed, irreparable damage will be done to him. That the petition makes a case entitling the plaintiff to specific performance, and the cancellation of the deed in favor of Willis and Saylor, is clearly ruled by the principle announced in the case of Simms v. Lide, 94 Ga. 553, 21 S. E. 220, where it was held: "A contract under seal to convey land to another upon the payment by him of a stipulated price, provided such payment be made within six months of the date of the contract, is obligatory, if supported by a consideration of five dollars actually paid by the obligee to the obligor. After the former has made his election to pay the stipulated price, and has actually tendered the same within the time specified in the contract, and demanded a conveyance, there is no want of mutuality; but both parties are bound absolutely, and specific performance may be enforced at the instance of the obligee suing in behalf of a third person, to whom he has sold all his interest in the premises, or in the contract sought to be enforced,-such assignee being a co-party plaintiff as usee." See, also, authorities cited on page 555, 94 Ga.1 In such case, tender is equivalent to performance. See Phillips v. Williams, 39 Ga. 597. Generally, unless there be mutuality of obligation, so that either party might have a right to the remedy, there can be no enforcement of the contract by specific performance. There are, however, clear ex 1 Waterman, Spec. Perf. 162-200; Justices of Inferior Ct. v. Moreland, 20 Ga. 145; Mining Co. v. Latimer, 51 Ga. 63; Forsyth v. MeCauley, 48 Ga. 402, 404; Law v. Nunn. 3 Ga. 90; Bagwell v. Bagwell, 72 Ga. 95; Justices of Inferior Ct. v. Smith, 13 Ga. 505; Smith v. Smith, 36 Ga. 190; Lang v. Brown, 29 Ga. 628; Fulcher v. Daniel, 80 Ga. 74, 4 S. E. 259; Gilmore v. Bangs, 55 Ga. 404; Code, §§ 2244, 2739; Johnston v. Tuppe, 33 Fed. 530; Miller v. Cameron (N. J. Ch.) 15 Atl. 842; Ross v. Parks (Ala.) 8 South. 368: Litz v. Goosling (Ky.) 19 S. W. 527; Woodruff v. Woodruff, 44 N. J. Eq. 349, 16 Atl. 4. ceptions to this rule. In discussing them, Waterman, in his work on Specific Performance (section 200), says: "But it is well settled that an optional agreement to convey, or to renew a lease, without any covenant or obligation to purchase or accept, and without any mutuality of remedy, will be enforced in equity if it is made upon proper consideration, or forms part of a lease or other contract between the parties that may be the true consideration for it, though such an agreement can perhaps scarcely be called an exception; for, being in fact a conditional contract, when the condition has been made absolute, by a compliance with its terms, the contract becomes mutual, and capable of enforcement by either party. A contract for the sale of real estate at the option of the vendee only, upon election and notice, may not be specifically enforced; but the refusal of the vendor to accept the purchase money will not destroy the mutuality, though the vendee could thereupon withdraw his election." In the case under review the obligation of the defendants in error was a subsisting, irrevocable offer for the time limited. When the acceptance was made, there was a mutuality of undertaking. The filing of the bill for specific performance itself supplied the element of mutuality, if it was theretofore wanting, and the court had full power to decree as against each of them. Woodruff v. Woodruff (N. J. Ch.) 16 Atl. 4. The court erred in sustaining the demurrer, and the judgment must be reversed. All the justices concurring, except COBB, J., absent for providential cause. BAKER v. WEAVER. (Supreme Court of Georgia. April 13, 1898.) INJUNCTION-CONFLICTING EVIDENCE-CONTEMPT. 1. The evidence being conflicting, the court did not abuse its discretion in granting in part and refusing in part the injunction prayed for. 2. Where a petition prays for injunction to restrain the defendant from cultivating a certain piece of land bordering upon a mill pond of the plaintiff, the latter cannot, after the court has refused such injunction, prevent defendant from cultivating the land by raising his mil pond, and thus flooding the land. In a proceeding against the plaintiff for contempt of court on account of such wrongful act, the court did not err in ordering plaintiff to lower his dam so as to restore the status existing at the time the injunction was refused. (Syllabus by the Court.) Error from superior court, Bartow county; A. W. Fite, Judge. Petition by T. H. Baker to enjoin David Weaver from clearing and cultivating certain lands. A preliminary injunction was granted, enjoining further clearing; and, on defendant's application, plaintiff was restrained from overflowing the lands, and he brings error. Affirmed. J. M. Neel, for plaintiff in error. J. W. Harris, Jr., for defendant in error. SIMMONS, C. J. 1. Baker owned a mill and mill pond. Weaver claimed to own the land on the sides of the pond. He was cultivating part of this land, and undertook to clear away the trees and undergrowth near the banks of the pond. Baker claimed title to the land on one side of the pond, and claimed that the trees and undergrowth on the other side were appurtenances to his mill property. He filed an equitable petition seeking to enjoin Weaver from cultivating the land already cleared, cutting or clearing the trees and undergrowth on the banks of the pond, and digging ditches which would empty surface water into his pond, and fill it in. On the hearing, the judge granted an injunction restraining Weaver from cutting the trees and undergrowth on the banks of the pond, and from digging any ditches which would empty into the pond, but refused to enjoin him from cultivating the land which he had already cleared. The evidence was conflicting as to the rights of the parties, and this court, according to numerous decisions, will not undertake to control the discretion of the trial judge in granting or refusing an injunction in such a case. 2. It appears that, after the refusal of the trial judge to restrain Weaver from cultivating the cleared land, Baker took the matter into his own hands, by raising and building up his dam so as to stop the flow of the water, and back it up stream in such manner as to overflow the land cleared by Weaver, and thus prevent its cultivation. Weaver applied to the court for a rule nisi calling upon Baker to show cause why he should not be attached for contempt. At the hearing of this rule nisi, the above facts appeared. The court ordered Baker, within 11 days, to lower the dam to the height at which it had stood at the time of the previous order. Baker excepted to this order, and brought the case here. The ground urged in the argument here was that this was a mandatory injunetion, and that the court was without authority to pass it. We do not agree with counsel for plaintiff in error in this view of the case. While it is true that the judge cannot, in this state, grant a mandatory injunction at a preliminary hearing, it is likewise true that he has full power in an equity case to order the property to remain in statu quo until the hearing. It would be a source of regret to hold that, where a court of equity has acquired jurisdiction of the parties and the property, it cannot compel obedience to its orders, and preserve the rights of all parties until the final hearing. Baker applied to the court for relief. The court granted it in part, and refused it in part. The court thereby said to him: "I will restrain Weaver from cutting the trees and undergrowth so as to protect you until final hearing of the case: but you have not made out such a title to the cleared land as would authorize me to restrain him from entering upon and culti vating it, and I therefore refuse this part of your prayer." Baker, by his subsequent conduct, replied: "You refuse to restrain Weaver from cultivating this land, but I will take the matter into my own hands, and effect my purpose by flooding the land." This, in our opinion, was clearly a violation of the order of court, and was a contempt. The court had full power to order him to lower the dam so as to restore the status which had existed at the time the injunction was refused, and, if he refused or failed to obey this order, to attach him for contempt. Johnson v. Hall, 83 Ga. 281, 9 S. E. 783. Judgment affirmed. All the justices concurring, except COBB, J., absent on account of sickness. SIMMONS, C. J. Mathews was found guilty of an assault with intent to murder; the indictment charging that the assault was made with an instrument to the grand jurors unknown, "the same being a weapon fikely to produce death." He moved for a new trial on the grounds that the verdict was contrary to law and the evidence, and without evidence to support it. This motion was overruled, and he excepted. It being the province of the jury to pass upon questions of fact, and to determine the truth when the evidence is conflicting, this court will not disturb their finding, which was approved by the trial judge, if there is any evidence to support it. The question of whether there is sufficient evidence to support a finding is, however, a matter of law, to be determined by the court, and may be here reviewed. The testimony introduced by the accused tended to prove an alibi, and he contends, not only that his identity was not sufficiently proven, but also that the evidence did not show that the offense of assault with intent to murder was committed at all. In regard to the first of these contentions, we think that the state's evidence was sufficiently strong to authorize the jury to find that the accused was the person who committed the assault, if any assault was committed. In regard to the other contention, we think that the evidence was not legally sufficient to authorize a finding that an assault with intent to murder was committed. The evidence of the prosecutor shows that one evening, shortly after dark, some one ran against him from behind, and struck at him. He testifies that the blow was aimed at him, and that the weapon used was some heavy substance. The evidence shows that the accused was a quarryman, and that he and some of his fellow workmen brought their hammers home with them from work on that evening. The accused had a quarryman's hammer, a blow from which would be likely to produce death, shortly before the alleged assault; and when he was arrested, an hour or two after that time, this same hammer was found on his premises. There is no proof that the person who committed the assault had at that time any weapon of a character which could be termed deadly. The prosecutor swears that the weapon was some heavy substance, but he explains that he did not see "any hammer, nor any hard substance, nor any other weapon." He was not struck at all by the weapon, and there were no marks of the weapon left upon his person or clothing, or upon the ground, in which the tracks of his assailant appear to have been so unmistakably imprinted. The prosecutor's only reason for believing that the weapon was a heavy substance was that he heard it when he was struck at, and it sounded like a heavy substance. In order to convict the accused, under the indictment, it was necessary to prove that the instrument with which the assault was made was a "weapon likely to produce death." This may be shown by direct or circumstantial evidence, but must be proven. In the pres ent case there is no evidence as to the nature of the instrument used, except the testimony of the prosecutor, which on this point is substantially as given above; and this, we think, is not sufficient to show the deadly character of the instrument used. There is grave doubt as to whether it is possible, under such circumstances, to tell the character of a weapon by the sound which it might make when used to strike a single blow at one's head; and, even if this be possible, we think that the prosecutor's judgment is still unreliable, for the reason that the blow of a light stick or switch is apt to make much more noise than that of the average deadly weapon. It is scarcely within the realms of possibility that a man stumbling against another could have struck a blow with a heavy hammer, which, although the hammer came in contact with neither the ground nor the party at whom the blow was aimed, could have been heard as it went over the head of the person attacked. It also appeared that the alleged assault was committed quite near a large erowd gathered at the depot on the arrival of a train, and within 20 feet of a conductor, with a lantern, whose light enabled the prosecutor to see his fleeing assailant, and to "recognize the form" of the accused. Yet he did not see any weapon whatever in the hands of the running man. In the case of Paschal v. State it was held that: "Where an indictment charged the commission of an assault with intent to commit murder, by using a weapon likely to produce death, the proof must show that such was the character of the weapon. This may be done by producing the instrument itself, or showing the effect of it, or other satisfactory evidence, but must be done in some way." 68 Ga. 818, and cases cited. An examination of the Paschal Case, and a comparison of that case with the present, will show that the evidence in this case is even weaker than in that. In this case we must hold, as the court did in that, that the evidence was not sufficient to warrant the conclusion, beyond a reasonable doubt, that the alleged assault was committed with a weapon likely to produce death. An assault with intent to murder may be committed without the use of any weapon, but in such case the evidence must show an intent to kill. No such intent appears in this case, the evidence tending rather to show either a simple assault or an accidental collision. Besides, the indictment expressly charges that the assault was made with a weapon likely to produce death. The evidence not showing that the alleged assault was committed with a weapon likely to produce death, or with an intent to kill, the verdict is contrary to law, and should, on motion, have been set aside. Judgment reversed. All the justices concurring. HOLLINSHEAD v. AMERICAN NAT. BANK OF MACON. (Supreme Court of Georgia. April 13, 1898.) ACCOMMODATION INDORSEE-DEFENSES-FRAUD CONSIDERATION. 1. A plea by an accommodation indorser or security to a suit upon a note which seeks to avoid liability on the ground that the indorsment was obtained by deceitful and fraudulent means is insufficient, when the only fraudulent conduct complained of is a failure on the part of a co-surety, who presented the note for indorsement, to disclose the true nature and purport of the note at the time defendant indorsed it, the defendant believing at the time that he was indorsing a note given for an entirely different consideration from that which was the subject-matter of the suit. 2. An extension of time by a creditor to his principal debtor is a sufficient consideration to support the indorsement of a note renewing the original debt. The court committed no error in striking defendant's pleas, and in directing a verdict against him. (Syllabus by the Court.) Error from superior court, Baldwin county; John C. Hart, Judge. Action by the American National Bank of Macon against G. W. Hollinshead. Judg ment for plaintiff. Defendant brings error. Affirmed. D. B. Sanford, J. D. Howard, C. T. Crawford, T. M. Hunt, and R. H. Lewis, for plaintiff in error. Roberts & Pottle and Whitfield & Allen, for defendant in error. LEWIS, J. 1. It appears from the record in this case that the pleas relied upon by the defendant were-First, fraud perpetrated upon him in the procurement of his indorsement on the note; and, second, want of consideration. The plea sets forth that one of the co-indorsers or sureties on the note brought the same to the defendant for the purpose of obtaining his indorsement thereon; that he (defendant) did not read the note; and that he was under the impression it was for another debt of the company, on account of a previous agreement entered into by the directors of the company which was the maker of the note, to borrow money for the purpose of carrying on the business of the company, and the defendant thought the note presented to him was for this purpose. He does not allege that any representation whatever was made to him as to the contents of the note; and his failure to read the same was manifestly the result of his own laches, against which neither a court of law nor of equity can give relief. 2. It further appeared from the plea that this note was given for an antecedent debt due to the plaintiff by the maker. The note upon its face shows that time was extended on that debt. It is not set forth in the plea in what particular there had been any failure of consideration. The principle announced in the second headnote requires no argument to demonstrate its correctness. We therefore conclude that the pleas set up no legal defense against the payment of the note, and that the court did not err in striking the same on demurrer, and in directing a verdict for the plaintiff. Judgment affirmed. All the justices concurring, except COBB, J., absent for providential cause. PLUNKETT v. CENTRAL OF GEORGIA RY. CO. (Supreme Court of Georgia. July 25, 1898.) INJURY TO EMPLOYE-EVIDENCE-NONSUIT. This being an action by a mother for the homicide of her son, and the declaration alleging that the deceased was an employé of the defendant railroad company, and was engaged as a car sealer in its yard, and that his death was brought about by being crushed between two cars where an opening had been left in the train of cars for the use of the employés in the yard, such opening being closed up by a sudden movement of the train without notice to deceased; and the evidence showing that the deceased was injured while attempting to go through an opening which was not left for the use of the employés in the yard, and was only such an opening as was usual and necessary from time to time in shifting cars in the yard, there was no error in granting a nonsuit. (Syllabus by the Court.) Error from city court, Richmond county; W. F. Eve, Judge. Action by Emma Plunkett against the Central of Georgia Railway Company. There was a judgment of nonsuit, and plaintiff brings error. Affirmed. J. S. & W. T. Davidson, for plaintiff in error. Jas. C. C. Black, Lawton & Cunningham, and Hamilton Phinizy, for defendant in error. COBB, J. This was an action against the Central of Georgia Railway Company for damages on account of the killing of the plaintiff's minor son, by the coming together of cars between which he was attempting to pass while on his way to the defendant's yard office from its railroad yard, where he had been engaged in the performance of his duties as a car sealer, in the employment of the defendant. When this case was here before (27 S. E. 682), on exception to the judgment of the trial court in overruling the defendant's demurrer, such judgment was affirmed, upon the ground that the petition alleged that the opening between the cars had been left for the use of the employés of the defendant in going backward and forward within the railroad yard, and that, such being the case, the railroad company was under an obligation to notify its employés when such opening was about to be closed up, and having closed it up without notice to the plaintiff's son, who was lawfully engaged at his work in the defendant's yard, and, on account of the failure to so notify him, he was crushed between the cars, that the company would be liable. This was the only ground of negligence which this court thought sufficient to sustain the petition filed by the plaintiff. Upon the trial of the case it appeared that the opening had not been left for the use of the employés of the defendant, but was such an opening as was ordinarily left from time to time in railroad yards, caused by the shifting from place to place of the cars which were usually therein. Such being the case, the defendant was under no duty to notify its employés when this opening would be closed up; and therefore an employé who attempted to use such an opening in going from place to place in the yard took the risks incident thereto, and, if injured, would have no right of action against the company. The evidence entirely failing to make out the case made by the petition, there was no error in granting a nonsuit. Judgment affirmed. All the justices concurring. CONNORS v. STATE. (Supreme Court of Georgia. April 11. 1898.) CRIMINAL LAW-APPEAL-REVIEW. No error of law being complained of, and the evidence being sufficient to warrant the verdict, the court did not err in overruling the motion for a new trial. (Syllabus by the Court.) Error from superior court, Chatham county; R. Falligant, Judge. Patrick Connors, being convicted of an offense, moved for a new trial, which was denied, and he brings error. Affirmed. O'Connor, O'Byrne & Hartridge, for plaintiff in error. W. W. Osborne, Sol. Gen., for the State. PER CURIAM. Judgment affirmed. |