ment, because attested by only two other persons, whereas our statute requires that there shall be at least three competent attesting witnesses to every will. We shall therefore deal with the question presented as if Mrs. Flynn herself were in life, and sought to attack the validity of an instrument signed by her on the ground that her attorney was an incompetent attesting witness thereto, and accordingly it had not been attested by the number of witnesses prescribed by law. The practice of attorneys attesting deeds, wills, and like instruments which they have drafted in accordance with instructions received by their clients, to be executed by the latter, has certainly long prevailed, both in England and in this country. It is equally certain that, at common law, attorneys have always been considered competent so to do. Doe v. Andrews, Cowp. 846. And, accordingly, it was held by the supreme court of South Carolina, in a somewhat recent case, that "an attorney who signs his name as a witness to the execution of a mortgage prepared by himself may be called upon to testify as to what occurred at the time of such execution." Bay Co. v. Dickson, 39 S. C. 146, 149, 17 S. E. 696, 697, citing a number of pertinent authorities. For the rule regarding privileged communications cannot properly be said to apply where an "attorney, having made himself a subscribing witness, and thereby assumed another character for the occasion, adopted the duties which it imposes, and became bound to give evidence of all that a subscribing witness can be required to prove. In all such cases it is plain that the attorney is not called upon to disclose matters which he can be said to have learned, by communication with his client, or on his client's behalf, matters which were so committed to him, in his capacity of attorney, and matters which in that capacity alone he had come to know." 1 Greenl. Ev. § 244; Story, Eq. Pl. (9th Ed.) § 602.

Counsel for the plaintiffs in error suggest that all of these authorities proceed upon the theory that, in assenting to the execution of a will or other instrument by his attorney, a client "waives" all right to thereafter invoke in his behalf the rule in regard to privileged communications, so far as that particular transaction is concerned. In support of this position, a number of New York decisions (among them, In re Will of Coleman, 111 N. Y. 220, 19 N. E. 71) were cited, wherein a statute of that state (providing, in effect, that all communications between attorney and client are privileged, and cannot be divulged "unless with the consent of the client") was under consideration. It seems that the courts of New York have construed this statute to cover every kind of communication, including Instructions as to the drafting of a will; and, unless the consent of the client to the disclosure thereof be secured while he is in life, the right to un

seal the lips of his attorney dies with him, and can never thereafter be exercised. In order that this construction may not lead to embarrassment in a proceeding where a will is offered for probate, it is held that, where a testator assents to his attorney attesting a will, this amounts to a full waiver, and the demands of the statute are satisfied. Following up this line of argument, counsel then undertake in their brief to point out that none of the various statutes on this subject of force in Georgia prior to 1887 were "simply declaratory of the common-law doctrine," and conclude by saying that "therefore all authorities cited, coming from other states or England, have no bearing upon this question, which is to be determined solely by the statute law of this state. Under the statute of 1887, a waiver of the privilege by the client is a legal impossibility, because it was never contemplated by the lawmaking power, and that is very clearly shown in the case of Lewis v. State, 91 Ga. 168, 16 S. E. 986." We quite agree with counsel in this construction of the act of 1887. What may or may not have been the effect of prior statutes is now immaterial. Granting that none of them were "simply declaratory of the commonlaw doctrine," it by no means follows that, after numerous statutory experiments and blunders, we have not finally, by our latest enactment, returned to the sound policy upon which that doctrine was based. Nor do we understand that the decisions above referred to, with the single exception of those construing the New York statute, proceed upon the idea that a client, by procuring the signature of his attorney as an attesting witness, "waived" the right to object to "privileged communications" being thereafter offered in evidence in a controversy respecting the transaction to which the client is a party. On the contrary, the real question at issue was whether communications made under such circumstances were privileged, not whether, conceding them to be so, the client had "waived" all right to protection in regard thereto. In other words, it has been held, and we think correctly, that a client cannot truthfully and honestly claim that he understood such communications to have been received by his attorney professionally, and under the seal of confidence, when the services of the latter as an attesting witness were avowedly rendered and accepted with a view to enabling him to testify in the event he might thereafter be called upon to do so. This, certainly, is the understanding sought to be conveyed by the extracts we have quoted from Greenleaf and Story. By no means is a client permitted, under our statute, to waive the protection it affords. The act of 1887 is clear upon this point. But this fact is not helpful in determining what really are or are not "privileged communications." The determination of this question must necessarily depend upon the circumstances under which the particular "matter or thing"

claimed to be privileged came to be known to the witness. If "by virtue of his relations as attorney," he may not testify; otherwise if "he may have acquired in any other manner" knowledge thereof. This is the test which our statute prescribes.

While a client has no power to waive his right to exclude this sort of incompetent testimony, still the law leaves it largely to him to render information which he imparts competent or incompetent as evidence to be used "for or against" him. For instance, a person may decline altogether the services of an attorney, or may employ him to attend to various different matters. A client may likewise confine his attorney's professional zeal to one branch only of a single subjectmatter, or to a specified act in connection with a particular transaction. Evidently, in the present instance, Mrs. Flynn did not contemplate that her counselor should belong absolutely to her, body and soul, from the moment he entered her house up to his departure therefrom; nor could she have understood, under the circumstances, that everything he might hear or see while there would be forever locked under the sacred seal of confidence. On the contrary, she accepted his services as an attesting witness, doubtless under the belief and with the desire that, if ever called upon after her death, he would conscientiously and truthfully testify to everything that then and there occurred in connection with the execution of her will. That he has undertaken to do so involves no breach of propriety even. Certainly, the policy our statute was intended to subserve has not been defeated. It follows that, if Mr. King was competent to testify to such matters as could properly be elicited from either of the other attesting witnesses, his signature to the instrument has the same legal effect as would that of a person whose competency to attest a will was beyond question. This being so, the paper offered in evidence could not be attacked on the ground of his alleged incompetency to attest it. Whether, on the trial not under review, he may have been permitted to go further in his testimony than he would have been authorized to do in a proceeding to which his client was a party, is utterly immaterial. Suffice it to say he was at liberty to testify to everything essentially material to the inquiry whether the paper offered for probate was really the will, duly executed, of a person capable, under the law, of disposing of her property.

4. Another source of complaint is that the trial judge instructed the jury: "It is not necessary that he [the testator] should comprehend the provisions of his will in their legal form, or that he should be skilled in the law. It is sufficient if he have such mind and memory as to enable him to understand the elements of which it is composed, and the disposition of his property in its simplest form." The language above quoted is al

most identically the same as that used in a charge in the case of Stancell v. Kenan, 33 Ga. 56, 64, which this court pronounced free from error. Read in connection with its immediate context, we are unable to perceive how the jury could possibly have failed to understand the instruction to which objection is made. But, even were it open to serious criticism, we would not feel warranted in the present case in setting the verdict aside on this ground alone. It appears by uncontradicted evidence that the instrument signed by Mrs. Flynn was read over to her by the attorney who drafted it; that its legal terms and its practical effect were by him fully explained; and that she stated unequivocally to him that she fully understood its provisions, and that they were in accord with her wishes.

5. The vital issue in the case was whether the testatrix was mentally capable of intelligently making a disposition by will of her property. Upon this vital point, as well as upon incidental issues involved, the evidence was conflicting. The jury were, however, fully warranted in returning a verdict in favor of the propounder; and, consequently, we are not prepared to say there was any abuse of discretion on the part of the trial judge in refusing to grant a new trial. Judgment affirmed.

1. Under the decision of this court in Montgomery v. Hunt, 21 S. E. 59, 93 Ga. 438, the defendant in an action upon a promissory note payable to the plaintiff or bearer is entitled to open and conclude when by his plea he admits the execution of the note sued on, and that the plaintiff is the legal holder of the same.

2. There was no error in overruling an objection to the admissibility of evidence on the ground that "there was better evidence"; it not being stated, at the time of making the objection, of what the "better evidence" consisted.

3. The verdict for the defendant upon his plea of recoupment being palpably wrong, in that the sum found was totally unwarranted by the evidence, the certiorari ought to have been sustained, and a new trial ordered.

(Syllabus by the Court.)

Error from superior court, Heard county; S. W. Harris, Judge.

Action by J. E. Levens against P. B. Smith. Judgment for defendant. Plaintiff brings error. Reversed.

Cobb & Bro. and D. B. Whitaker, for plaintiff in error. F. S. Loftin and T. B. Davis, for defendant in error.

FISH, J. 1. It appears from the record that at the trial of this case, on appeal to a jury in the justice's court, the defendant

amended his pleading by admitting that he executed the note, and that the plaintiff was the legal owner and holder of it. In his petition for certiorari the plaintiff complains that thereupon the defendant was allowed, over objection, to open and conclude the argument before the jury. We do not think there is any merit in this complaint. In Montgomery v. Hunt, 93 Ga. 438, 21 S. E. 59, this court held that: "Where suit was brought by the holder of a promissory note payable to the order of a named person, and indorsed by the payee in blank, and the defendant in his plea admits the execution of the note, and the ownership of it by the plaintiff, a prima facie case for the latter is made out. The burden of proof to establish his defense is upon the defendant, and consequently he is entitled to open and conclude." If, as we confidently believe, the decision therein rendered correctly lays down the law applicable under the state of facts there presented, it is to be regarded as controlling upon the question raised in the case at bar.

2. Further complaint is made that the defendant was permitted to testify that the consideration of the note in suit was a portion of the purchase money he had agreed to pay for a certain engine, the price of which was $150, payable in three installments of $50 each. The objection urged to this testimony was that "there was better evidence" of the facts thus elicited. Of what the "better evidence" referred to by counsel consisted, the court was not, however, informed, so far as the record before us discloses. Clearly, no error was committed in overruling an objection so vague and indefinite.

3. Under the evidence submitted, it is a matter of grave doubt whether the defendant's plea of recoupment was sufficiently sustained, either by showing a breach of the express warranty alleged to have been made by the plaintiff, or by proving the breach of any implied warranty raised by law. At all events, the amount of the verdict found in his favor by the jury was totally unwarranted, under any view of the evidence. Accordingly the plaintiff's petition for certiorari ought to have been sustained, and a new trial ordered. Judgment reversed.

(105 Ga. 504)

SHIRLEY v. HICKS et al. (Supreme Court of Georgia. July 19, 1898.) SECONDARY EVIDENCE-INJUNCTION - HEARINGHARMLESS ERROR.

1. When a certified copy of a deed is tendered in evidence, and a showing is made from which it may reasonably be inferred that the original is in the custody of a person beyond the limits of this state, who is not a party to the pending case, the foundation for the introduction of the secondary evidence is well laid.

2. A sworn answer to a petition for injunction may, at an interlocutory hearing, be considered by the judge as evidence, though offered as such without tendering therewith the plaintiff's petition, and though not offered at all

until after the evidence in the case had been formally closed.

3. Even if any error was committed in admitting testimony in the defendants' behalf, the evidence, as to the admissibility of which there could be no doubt, warranted the judgment denying the injunction.

(Syllabus by the Court.)

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

Action by M. J. Shirley against E. C. Hicks and others. Judgment for plaintiff. Defendants bring error. Affirmed.

J. C. Edwards and Chas. L. Bass, for plaintiffs in error. Geo. P. Erwin, for defendant in error.

PER CURIAM. Judgment affirmed.

(105 Ga. 393)

BUCHANAN v. SIMPSON GROCERY CO. (Supreme Court of Georgia. July 19, 1898.)

EXECUTION OF NOTE-EVIDENCE.

While it is incumbent upon a party offering in evidence a paper the execution of which he is required to prove, and which purports to have been attested by a subscribing witness, to introduce or account for such witness, if the latter upon his examination does not remember or denies that he attested the instrument the execution thereof may be then procured by any other competent evidence.

(Syllabus by the Court.)

Error from superior court, Carroll county; S. W. Harris, Judge.

Action by the Simpson Grocery Company against R. H. Buchanan. Judgment for plaintiff. Defendant brings error. Affirmed.

The following is the official report:

This was a suit in a justice's court upon a promissory note, to which a plea of non est factum was filed. The note purported to have been signed by the defendant by his mark, and the signature was followed by that of Ben Buchanan, as witness. At the trial the plaintiff tendered the note in evidence, and the defendant objected to its introduction, on the ground that there was a subscribing witness, and its execution was not proven. Ben Buchanan testified that he did not sign the note, nor authorize any one else to do so for him; that he had never seen it, and could not read or write, and would not know a note if he were to see one; that W. A. Widner (the payee of the note) went to where the witness and the defendant were at work; that "they" had some papers, but he did not remember any books, and did not sign any note as a witness. Widner did not call his attention to any note or the signing of the same. Other witnesses testified that Ben Buchanan admitted to them that he had witnessed the note. Widner testified that the defendant signed the note by making his mark in the presence of Ben Buchanan, whom he called to witness the note, and the witness said to him, "You just sign my name, and it will be all right," and he did

so. Ben Buchanan was recalled as a witness, and denied this. The plaintiff again offered the note in evidence, and the defendant objected to its introduction, on the ground that the execution of the note was not proven by the subscribing witness. The court sustained the objection. The plaintiff then offered to prove by the original payee that he saw the note executed. The defendant objected to this, and the court sustained the objection. No further evidence was offered. The jury rendered a verdict for the defendant, and the plaintiff took the case to the superior court by certiorari, alleging that the court erred in not allowing the note sued on in evidence, in restricting the proof to the witness on the note as to its execution, and in not permitting other proof of its execution. The judge of the superior court sustained the certiorari, and the defendant excepted, alleging that the judgment sustainIng the same was contrary to law and the evidence.

Oscar Reese, for plaintiff in error. S. Holderness, for defendant in error.

FISH, J. It will be seen from the reporter's statement of the case that the question for determination is whether the execution of a promissory note to which there appears to be a subscribing witness can be proven by evidence other than that of such witness, when he, upon being called to prove its execution, testifies that he never saw the note before, and did not sign it as a witness, nor authorize any one else to sign it for him. Where a writing has a subscribing witness, such witness, if living, sane, competent, and accessible, must in all cases where proof of execution is required, save those enumerated in section 5244 of the Civil Code, be produced and examined before the instrument can be legally admitted in evidence; but if the subscribing witness does not recollect the transaction, or denies having attested the Instrument, its execution may be proved by >ther competent testimony. The Code itself provides that, if the subscribing witness does not recollect the transaction, "then proof of the actual signing by, or of the handwriting of, the alleged maker shall be received as primary evidence of the fact of execution; and if such evidence be not attainable, the court may admit evidence of the hand writing of the subscribing witness, or other secondary evidence, to establish such fact of execution." Civ. Code, § 5245. This court decided in Reinhart v. Miller, 22 Ga. 416, that, "if the subscribing witness to an instrument denies or forgets his attestation, circumstances may be resorted to for proof of its execution." Even in the case of a will, if a subscribing witness denies its attestation by himself, or by the other subscribing witnesses, or denies its execution by the testator, or that the testator was mentally capable of making a will, the fact or facts de

nied by such subscribing witness may be proved by any competent witness having knowledge thereof, although the latter was not a subscribing witness to the instrument. Gillis v. Gillis, 96 Ga. 1, 23 S. E. 107, and cases cited on this point. Certainly, the rule with reference to proof of execution by subscribing witnesses cannot be more rigid in the case of an ordinary promissory note, the attestation of which is not at all necessary to its validity, than it is in regard to a will, the proper execution of which is so carefully provided for by the law. The two decisions of this court above cited are in accordance with the rule which has been long recognized in England. The case of Ley v. Ballard, tried in 1790, and which is cited in the note to Park v. Mears, 3 Esp. 173, was an action of debt on bond, against two defendants, one of whom (Ballard) pleaded non est factum. "There were two subscribing witnesses to the bond. They were called; but neither of them saw it executed by the defendant Ballard." The plaintiff proved the handwriting of Ballard, and that he had been heard to say that he had signed the instrument, and was afraid he would have to pay it. Lord Kenyon held: "The subscribing witnesses to a bond must be called to prove it. If they disavow having seen it executed, other persons who saw it executed, or can prove the party's handwriting, may be called. So, if the subscribing witnesses prove contrary to what their attestation purports, namely, that the party did not execute it, it is open to the party to establish the instrument by other evidence. This was done in the case of Jolliffe's Will." In the celebrated case of Lowe v. Jolliffe, 1 W. Bl. 365, to which Lord Kenyon refers, the three subscribing witnesses to a will, and the two surviving ones to a codicil, executed four years after the will, all swore that the testator was incapable of making a will at the time of the signing of the will and when the codicil was executed, or at any intermediate time; yet the will was established upon the testimony of other witnesses. In Abbot v. Plumbe, 1 Doug. 216, Lord Mansfield said: "It was doubted formerly whether, if the subscribing witness denies the deed, you can call other witnesses to prove it; but it was determined by Sir Joseph Jekyl, in a cause which came before him at Chester, that in such case other witnesses may be examined; and it has often been done since." In Lemon v. Dean, 2 Camp. 636, note, where the action was on a promissory note, upon which there appeared to be a subscribing witness, who, when called, swore that he did not see the defendant subscribe the note, it was held that the plaintiff could prove the execution by other means. To the same effect are Fitzgerald v. Elsee, 2 Camp. 635, and Talbot v. Hodson, 7 Taunt. 251. See, also, Starkie, Ev. 511; Taylor, Ev. § 1844. For cases in which the same principle has been recognized by our American state

courts, see Duckwall v. Weaver, 2 Ohio, 13; Whitaker v. Salisbury, 15 Pick. 534; Jackson v. Christman, 4 Wend. 282. The court below committed no error in sustaining the certiorari. Judgment affirmed. All the justices concurring.

(102 Ga. 474)

COLE V. ATLANTA & W. P. R. CO. (Supreme Court of Georgia. Aug. 5, 1897.) CARRIERS-MISCONDUCT OF CONDUCTOR.

It is unquestionably the duty of a railroad company to protect a passenger against insult or injury from the conductor of the train on which the passenger is riding; and, this being so, the unprovoked use by a conductor to a passenger of opprobrious words and abusive language, tending to cause a breach of the peace, or to humiliate the passenger, or subject him to mortification, gives to the latter a right of action against the company.

(Syllabus by the Court.)

Error from superior court, Coweta county; S. W. Harris, Judge.

Action by William H. Cole against the Atlanta & West Point Railroad Company. Judgment for defendant. Plaintiff brings error. Reversed.

W. H. Bingham, W. L. Stallings, and D. B. Whitaker, for plaintiff in error. Dorsey, Brewster & Howell, for defendant in error.

FISH, J. The plaintiff's petition set forth a cause of action. "Railroad companies are Hiable for torts committed by their servants in the prosecution and within the scope of their business, whether the same be by neg ligence or voluntary." Railroad Co. v. Turner, 72 Ga. 292, 294. Accordingly, a plaintiff is entitled to recover damages for an assault made upon him, and "when to this are added other wrongs and violations of rights and duties; when he was insulted and vilified by their agents while under their protection; when they failed to exercise the 'extraordinary diligence' which the law requires at their hands for his safety and comfort,surely these are circumstances entitling him to compensatory damages, as well for wounded feelings as for the inconvenience, pain, and suffering for this wanton and cruel violation of his rights by the conductor and his assistants." Railroad Co. v. Olds, 77 Ga. GS1; Railroad Co. v. Condor, 75 Ga. 55; Gasway v. Railroad Co., 58 Ga. 216, 220. "Wounding a man's feelings is as much actual damage as breaking his limbs. The difference is that one is internal and the other external; one mental, the other physical." Head v. Railway Co., 79 Ga. 360, 7 S. E. 217. "The carrier's obligation is to carry his passenger safely and properly, and to treat him respectfully; and, if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence

and insult, from whatever source arising. * He must not only protect his passenger against the violence and insults of stran gers and co-passengers, but, a fortiori, against the violence and insults of his own servants. If this duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the passenger is assaulted and insulted, through the negligence or the willful misconduct of the carrier's servant, the carrier is necessarily responsible. And it seems to us it would be cause of profound regret if the law were otherwise. The carrier selects his own servants, and can discharge them when he pleases, and it is but reasonable that he should be responsible for the manner in which they execute their trust. To their care and fidelity are intrusted the lives and limbs and comfort and convenience of the whole traveling public, and it is certainly as important that these servants should be trustworthy as it is that they should be competent. It is not sufficient that they are capable of doing well, if in fact they choose to do ill; that they can be as polite as a Chesterfield, if, in their intercourse with the passengers, they choose to be coarse, brutal, and profane. The best security the traveler can have that these servants will be selected with care is to hold those by whom the selection is made responsible for their conduct." Goddard v. Railway Co., 57 Me. 213, 214, followed and approved in Hanson v. Railway Co., 62 Me. 84. The greater part of the above extract is quoted and adopted as the text in Hutchinson on Carriers (section 596). See, also, Ray, Neg. Imp. Duties (Pass. Carr.) 340; Booth, St. Ry. Law, § 372. "The carrier's liability is not confined to assaults committed by its servants, but it extends also to insults, threats, and other disrespectful conduct. Thus, a street-railway company is liable for the act of its driver in falsely charging a passenger, in the hearing of others, with passing counterfeit money in payment of fare, and in threatening him with arrest. So, if the master of a vessel forcibly drives the passengers out of the cabin; if he compels them to lodge with the common hands; if, by his indecency, rudeness, or brutality, he shock the modesty of a female passenger, so as to oblige her to quit the cabin, or as to render the passage comfortless, by a continued series of vexation, misery, and torment,-both he and his employers are liable." 2 Fetter, Carr. Pass. § 366, citing Lafitte v. Railroad Co., 43 La. Ann. 34, 8 South. 701; Keene v. Lizardi, 5 La. 431; St. Amand v. Lizardi, 4 La. 244. In this connection, see, also, Campbell v. Car Co., 42 Fed. 484, affirmed by United States supreme court in 154 U. S. 513. 14 Sup. Ct. 1151; Railroad Co. v. Blocher, 27 Md. 277; Craker v. Railway Co., 36 Wis. 657; Bryant v. Rich, 106 Mass. 180; Railroad Co. v. Whitman, 79 Ala. 328; Railroad Co. v. Flexman, 103 Ill. 546; Railroad Co. v. Jackson, 81 Ind. 19.