Gambar halaman

was pointed out in Finn v. Western R. Corp. Goodwyn v. Douglas, Cheves, L. 174; 3 Enc. 112 Mass. 524, 17 Am. Rep. 128, where it was Pl. & Pr. 826; Hutchinson, Carr. $$ 724 et ruled, in effect, that, in order to authorize seq.; Parks v. Gulf, C. & 8. F. R. Co. (Tex. an action by the consignor who is not the Civ. App.) 30 S. W. 708; Galveston, H. & S. owner of the goods, there need be no express A. R. Co. v. Barnett (Tex. Civ. App.) 26 S. contract between him and the carrier, but W. 782; Davis v. Jacksonville Southeastern that the action may be maintained upon the Line, 126 Mo. 69, 28 S. W. 965. There are contract implied by the delivery and receipt a few cases which seem to hold that the sole of the goods for carriage, if no action en right of action against a carrier for loss of delicto has been begun by the consignee; and or injury to goods is in the consignee, notthat the consignor will hold the sum recovo withstanding a contract of carriage was ered in trust for the consignee. In Carter v. made with the consignor. It would not be Graves, 9 Yerg. 446, it was held: "A con- profitable to attempt to reconcile these designor cannot maintain an action on the case cisions. Some of them, however, will be for the loss or injury of the property con- found upon examination to refer to actions signed without showing that he has a special ex delicto brought by the consignee as the or general right thereto,

but that real owner of the goods. Those which do he may in all cases maintain an action of hold that the consignor cannot maintain an assumpsit upon a contract to deliver the action for a breach of a contract made by property safely, he having made the same, the carrier with him are, as has been seen and paid or become bound for, the considera- above, against both principle and the great tion.” In Hooper v. Chicago & N. W. R. weight of authority, and ought to be disreCo. 27 Wis. 81, 91, 9 Am. Rep. 439, it was garded. So far, however, as the present case said: "The shipper is a party in interest to is concerned, the plaintiff was both consignor the contract, and it does not lie with the car and consignee, and the real owner was a parrier who made the contract with him to say, ty entirely unknown in the transaction. We upon a breach of it, that he is not entitled prefer, however, to place our decision upon to recover the damages, unless it be shown the ground that, as the plaintiff was the that the consignee objects; for, without that, agent of the real owner of the goods, and had it will be presumed that the action was com- charge of the same, he was authorized to enmenced and is prosecuted with the knowl- ter into a contract of shipment with the car. edge and consent of the consignee, and for rier; and that, having entered into this conhis benefit. The consignor or shipper is, by tract, the legal interest therein was vested operation of the rule, regarded as a trustee in him, and he could sue for its breach. The of an express trust, like a factor or other decision of this court in Lockhart v. Westmercantile agent who contracts in his own ern & A. R. Co. 73 Ga. 472, does not conflict name on behalf of his principal.” Another with anything ruled in the present case. well-considered case, in which an elaborate The plaintiff in that case had no contract review of the authorities is made, is South- with the carrier, and had no interest what. ern Exp. Co. v. Craft, 49 Miss. 480, 19 Am. ever in the property. Rep. 4. In Great Western R. Co. v. Mc- It was contended by counsel for defendant Comas, 33 Ill. 186, it was ruled: “Where in error that the plaintiff in the present acgoods are shipped upon a railroad for trans- tion failed to make out a prima facie case portation, the consignor may sue for their of liability on the part of the defendant for nondelivery, though he be but a bailee. He injury to the goods, and that, this being so, has such a special property in the goods as even if the court erred in placing his decision to give him a right of action. So may the granting a nonsuit on the ground indicated real owner sue, and so may the consignee." in the order, the judgment should be affirmed, It was ruled further in that case that, which- as the right result was reached, though the ever of these three first obtains damages, it wrong reason may have been given for it. will be in full satisfaction of the claims of We think the plaintiff did make out a the others.

prima facie case of liability, and consequentWe have not undertaken to collate here all ly the judgment of nonsuit was, in any view of the cases bearing upon this question of the case, erroneous, and a trial upon the Many of them, perhaps nearly all, are cited merits should be had. in the decisions above referred to. The fol

Judgment reversed. lowing also support the ruling made in the present case: Cobb v. Mlinois C. R. Co. 38

All the Justices concur, except Fish, J., Iowa, 601 (syl. point 8); Dows v. Cobb, 12 absent on account of sickness. Barb. 310: Harvey v. Terre Haute & I. R. Co. 74 Mo. 539; Atchison v. Chicago, R. I. & P. R. CO. 80 Mo. 213; Moore v. Sheridine, 2

J. A. STONE, Piff. in Err., Harr. & McH. 453; Southern Exp. Co. v. Caperton, 44 Ala. 101; Missouri P. R. Co. Thomas C. MINTER et al., Admrs., etc., of v. Smith, 84 Tex. 348, 19 S. W. 509; Mis

William S. Minter, Deceased. souri P. R. Co. v. Scott, 4 Tex. Civ. App. 76,

(........ Ga.........) 26 S. W. 239; Ohio & M. R. Co. v. Emrich,

•1. When a client makes to his attor24 Ill. App. 245; Northern Line Packet Co. v. Shearer, 61 Ill, 203; Brill v. Grand Trunk *Headnotes by LITTLE, J. R. CO. 20 U. C. C. P. 440; Moran v. Portland

NOTE.-See, in connection with this case, Steam Packet Co. 35 Me. 55; Cantwell V.

that of Haley v. Eureka County Bank (Nev.) Pacific Exp. Co. 58 Ark. 487, 25 S. W. 503; 12 L. R. A. 815.


ERROR to the Super jud govert in'favor eri Ga

. 748, 15 s. E. 826.

ney a communication or statement intate, and acquired by reason of his employthe presence of the opposite party as to the

ment as such. transaction in hand, it is not confidential or

Civil Code, 5198 (2), 5199, 5271, Acts privileged, and the attorney is a competent 1887, p. 30; Raefle v. Moore, 58 Ga. 94: Stewitness to testify respecting the same on the trial of a case arising out of such transaction phens v. Mattox, 37 Ga. 289; Riley v. Johnbetween the administrator of the client and ston, 13 Ga. 260: Neal v. Patten, 47 Ga. 74; the other party.

Martin v. Anderson, 21 Ga. 301; Merchants' 2. Parol evidence tending to show that Bunk v. Rauls, 21 Ga. 289; Osborn v. ller

a conveyance of land was really made ron, 28 Ga. 315; Causvy v. riley, 27 Ga. in extinguishment of a debt, and that the 444: Dover v. Harrell, 58 Ga. 572; Freeman grantor, for reasons satisfactory to himself,

v. Breuster, 93 Ga. 649, 21 S. E. 105; Peelo desired that the grantee should pay over to v. Boone, 90 Ga. 767, 17 S. E. 66. him, on delivery of the conveyance, the

The court did not err in granting nonsuit. amount of money specified as the consideration, with the promise that, if this was done,

Baker v. Dobbins, 87 Ga. 545, 13 S. E. he would repay said sum to the grantee, does 524; Southwestern R. Co. v. Jillian, 62 Ga. not have the effect of varying any of the 607; Ramsey y. Cole, 84 Ga. 147, 10 S. E. terms or conditions of the deed. Such evi- 599; Shomo v. Runsom, 92 Ga. 97, 18 S. E. dence goes alone to the point as to what was 534; Bedell v. Richmond & D. R. Co. 94 Ga. the true consideration of the instrument, con- 23, 20 S. E. 262; Pryor v. West, 72 Ga. 140; cerning which inquiry always can be made. Pace v. Harris, 97 Ga. 357, 24 S. E. 445. The court erred in granting a nonsuit.

The evidence does not show a contract.

Civil Code, 8 3037; 5 Lawson, Rights, (June 6, 1900.)

Rem. & Pr. 2223: Crarley v. Blackman, 81

(a. 775, 8 S. E. 533; Stir v. Roulston, 88 to judgment in favor of defendants in an action brought to recover

Little, J., delivered the opinion of the money alleged to be due from defendants' in

cort: testate to plaintiff. Reversed.

Stone instituted an action against Minter, The facts are stated in the opinion. Jessrs. F. Jordan & Son and George & of the estate of William S. Vinter, making

administratrix, and Minter, administrator, George, for plaintiff in error: On the competency of Maj. J. C. Key to intestate died on July 5, 1897, and at the

substantially the following case: That the testify as to the consideration of the deed time of his death was indebted to petitioner and the contract between Minter and Stone, in the principal sum of $2,300, besides interas detailed by Minter, when the deed was

est. That said indebtedness arose in the folwritten, see

losing manner: In June, 1887, the intesCorbett v. Gilbert, 24 Ga. 459; Collins v. Johnson, 16 Ga. 458; McDougald v. Lane, 18 lv, was residing on his farm near where peti.

tate, who was aged, infirm, and had no famiGa. 444; Burnside v. Terry, 51 Ga. 188; tioner lives; that at the urgent request of Brown v. Mattheu 8, 79 Ga. 8, 4 S. E. 13.

the intestate, he was received as a boarder at On saj. Key's competency to testify to the house of petitioner, with the underconversation between Minter and Stone as to standing and agreement that he would pay to their contract, in his presence before the deed the wife of petitioner satisfactory compensawas written, and before he was employed as tion for his board, no specific sum being attorney to write it, see

agreed on; that, in addition to boarding at Civil Code, $ 5271; Skellie v. James, 81 the house of petitioner, the intestate, in Ga. 419. & S. E. 607; Thompson v. Wilson, March, 1888, became a lodger at his house, 29 Ga, 539; Sharman v. Horton, 31 Ga. 34.

and continued to board and lodge, under the If there is any evidence whatever, nonsuit agreement aforesaid, from said respective is improper.

dates to the time of his death. That, after Tison v. Yawn, 15 Ga. 491, 60 Am. Dec. he thus became an inmate of petitioner's 708; Dyson v. Beckam, 35 Ga. 132; Augusta home, the intestate repeatedly declared that Amateur Jlusical Club v. Cotton States Me- he intended to convey a part of his estate to chanics & Agri. Fair Asso. 50 Ga. 436; the wife and children of petitioner for the East & Trest R. Co. of Alabama v. Sims, 80 kind treatment he had received, and in pavGa. 807, 6 S. E. 595; McConnell v. East ment for the board and lodging furnished Point Land Co. 100 Ga. 133, 28 S. E. 80; him. That subsequently, the intestate not Barnett v. Terry, 42 Ga. 283; Woodruff v. having performed any of said promises, petiAlabama Great Southern R. Co. 75 Ga. 47; tioner insisted on a settlement of his claim Frank v. 4 tlanta Street R. Co. 72 Ga. 338. for board. It was then mutually agreed

Consideration is always open to inquiry. that the sum of $2,800 would be a fair and

Butts v. Cuthbertson, 6 Ga. 168: Knight reasonable compensation for the board and 1. Kuiyht, 28 (2. 105; Finncy v. Cadwalla- attention which the intestate had received, dır. 55 Ga. 78; Civil ('ode, $ 3599; Parrott which sum the intestate proposed to pay by V. Bahor, 82 Ga. 373, 9 S. E. 1068.

conveying to petitioner the title to 400 acres Mr. J. D. Kilpatrick, for defendants in of land which adjoined the premises of peti

tioner. This proposition was accepted. It The court did not err in repelling the evi. was then further proposed by the intestate dence of John C. Key. The evidence offered that, inasmuch as his relatives would be diswas acquired by the witness while acting as satisfied with him, and cause a disturbance, the attorney at law for defendants' intes. 'if the land was conveyed in payment of the debt, he suggested that the petitioner should I was not present when the $500 note was pay him $2,300 in cash, and execute and de- executed by Stone, but in the conversation liver to him a promissory note for $500, be just related Mr. Minter said he wanted the ing the consideration to be mentioned in the deed made, and he would sign it, and that he deed, and that subsequently he (the intes- and Stone would arrange balance by Stone's tate) would refund the money and note thus handing him $2,300 and his note for $500, to be given to petitioner. That intestate and that both money and note were to be restated as a reason for desiring to make this turned by him to Stone." On cross-examinaarrangement that he was old and feeble, and the witness said: did not desire to be worried by his relatives, and that the arrangement proposed by him Stone. In writing this deed I was in his


I had been of counsel for both Minter and would be the means of concealing from his relatives ihe true transaction. That, rely

(Minter's) retainer. ing in the promise of the intestate to repay

Q. Who represented Stone in that mat

ter? him the sum of $2,300, and to return to him his promissory note, petitioner agreed to the

A. Nobody but himself. proposition, and on June 29, 1896, he paid

Q. Who appealed to you to draw that pato the intestate $2,300 in cash, and delivered per the deed] ?

A. Mr. Minter. to him his promissory note for $500, and received a deed from the intestate conveying

Q. You didn't represent Stone at all? to him the aforesaid land. That shortly

A. No, sir, I was doing this for Mr. Minthereafter the intestate did return and deliv.

ter. er to him his note, with the statement that, And also: "A few days before I wrote the as soon as he was well enough, he would go deed, I heard Mr. Minter and Mr. Stone to the bank, procure the money, and return talking together in my presence about this it also to the petitioner. That the intestate matter. In that conversation Minter told was prevented from so doing by sickness Stone that he was going to give him that which terminated in his death. The answer piece of land valued at $2,800 as compensa. denied specifically and at length all the al- tion for his board and the services that legations in reference to the indebtedness and Stone had rendered him in taking care of the contract as set up by petitioner. On the him. He said to Stone that the money that trial of the case, Maj. John C. Key was intro- he was to pay him was simply a sham, and duced as a witness, and testified as follows: fixed so he could say, if he was inquired of “I knew William S. Minter in his lifetime, about it, that he had got the money from and I know plaintiff. This deed (referring him. He was talking to Stone then." Counto a deed handed to him]. William S. Minter sel for defendant.objected to this evidence, to James A. Stone, dated January 23, 1896, and moved to rule out the same on the is in my handwriting. I wrote it at the in- ground that the facts testified to were a stance and request of Jr. Vinter. He and privileged communication between attorney Mr. Stone were present. Mr. Vinter said on and client, and therefore inadmissible. The that occasion. in the presence of Mr. Stone, court sustained the motion, and ruled out that he and Mr. Stone had agreed upon the the evidence, to which ruling the plaintiff excompensation he was to give Stone for his cepted. The plaintiff then introduced board, lodging, and attention for several number of witnesses, whose evidence tended years past. He said that he and Stone had to support the allegations of the petition. been talking a long time about this compen- The plaintiff having closed, defendant moved sation, and that he had agreed to give Stone for the grant of a nonsuit, which was orthat piece of land, and wanted me to write dered, and to which judgment the plaintiff a deed to it to Stone as a compensation for also excepted. his having remained and boarded there at 1. Section 5198 of the Civil Code declares Stone's. He said that they had agreed on that certain admissions and communications the price of the land at $2.800, and he was are, from public policy, to be excluded as evigoing to make him a deed to that land; that dence. Among these are communications he had been talking about making a will, but between attorney or counsel and client. Sec. he thought that arrangement would not do; tion 5271 of the same Code gives the rule to that it would involve Stone in some litiga- | be enforced more explicitly. Its provisions tion with his (Minter's) kin after his death. are that "no attorney shall be competent or Ile spoke of Stone having been his friend and compellable to testify in any court coufidant, and said that he had, perhaps, cre- for or against his client, to any matter or ated a suspicion among his kindred that he thing, knowledge of which he may have acwould do more for Stone than for them. He quired from his client by virtue of his rela. said that Stone had done more for him than tion as attorney, or by reason of the antici. anyone else had done, and that he did not pated employment of him as attorney, but want Stone to get into such litigation, and shall be both competent and compellable to he had decided to make him a deed to the testify, for or against his client, as to any land. He said that his people would be ask matter or thing, knowledge of which he may ing him about the matter of this deed, and have acquired in any other manner.” Sec. in order that he might have an excuse, and tion 5199 still further enlarges the rule reas Stone had the money to pay him the $2,- lating to privileged communications, and de800, he wanted it to appear as if it was a clares that“communications to any attorney, sale, and that he would pay the money back or his clerk, to be transmitted to the atto Stone. He said that was the agreement. I torney pending his employment, or in antici.


pation thereof, shall never be heard by the tion. The idea which seems to be involved curt." The rules established by these sections in the establishment of the rule is not that of our Code are, in their effect, the same as ex- 1 of mere secrecy. It is not that the client has isted at common law, except that under the imparted to the attorney information about common-law rule the attorney could not be a matter which is to be concealed from the compelled to testifyas to communications, nor public, but it is founded on altogether a difto disclose papers, or letters, or entries made ferent principle. Having respect solely to by him in that capacity; while our statute the free and unembarrassed administration goes to the extent of declaring that the at- of justice, and to the security of all men in torney shall not be competent or compellable the enjoyment of their civil rights, no man is to testify for or against his client. Lord under a legal obligation to disclose facts or Chancellor Brougham declared that the rule circumstances which would render questionawas not founded on any particular import- ble his demand for a particular right, or imauce which the law attributes to the business pair his defense to another's demand. Origiof legal professors, or any particular disposi- nally, suitors and defendants appeared per, tion to afford them protection, but out of resonally before the tribunal which interpreted gard to the interests of justice, which could and administered the law. Subsequently, not be upheld, and to the administration of however, when the application of legal prinjustice, which could not go on, without the ciples and the forms of procedure became aid of men skilled in jurisprudence, in the more complicated and intricate, the services practice of the courts, and in matters affect- of persons having knowledge of the one and ing rights and allegations which form the skill in the other came into demand, and to subject of judicial proceedirg; and that, if fully protect the rights of parties litigant such communications were not protected, no the procurement of the services of persons man would consult a professional adviser skilled in the law became universal. No with a view to his defense, nor safely go in- man being compelled to himself disclose the to a court either to obtain redress, or to de- / weakness of his case, it followed almost as fend himself. Grecnough v. Gaskell, 1 Myl. a necessary consequence that the person who & K. 102; Bolton v. Liverpool, 1 Myl. & K. represented him and presented that case 94, 95, Jr. Greenleaf, in the first volume of could not do so. If it were otherwise, tlie his Law of Evidence ($ 239), says that this free administration of justice would be reprivilege is not personal to the attorney, but stricted, and the ascertainment and enforceis a rule of law for the protection of the cli- ment of rights endangered. Therefore when, ent. Mr. Weeks, in his treatise on Attor- in order to obtain the measure of his rights, neys at Law ($ 144), gives the general rule the client resorted to a representative who established by the weight of authority on could better judge the merits of his case, and this subject as follows: "An attorney is disclosed to him the facts upon which the asprivileged from giving evidence of any con- certainment of his rights must depend, the fidential communication made to him by his law of public policy put a seal upon the lips client, or concerning which he has been in- of his counsel just as effective as the interformed in his professional capacity as attor- est of the client placed a ban upon his own ney for the client. The privilege is that of disclosure; and, to the credit of the profesthe client, and not that of the attorney:" sion be it said, that as a rule almost without The same author in $ 151, says, on authori. exception, the private matters of the client tv, that the rule does not extend to informa- communicated to counsel are held sacred. tion acquired by him in any other way than There is no reason why an attorney may not by such confidential communication by the be called as a witness to give evidence of client; and Mr. Best, in his work on the facts within his knowledge. In the adminisPrincinles of Evidence ($ 581), says that tration of justice the courts will compel him the privilege does not extend to matters of so to do, and to place before the jury his fact which the attorney knows by any other knowledge of any fact in issue, except as to means than confidential communication with those which his client, depending on him for his dient, though, if he had not been em- advice and direction, has seen fit to communployed as attorney, he probably would not icate in order to obtain the full measure of huve known them. It appears that Mr. Kev his right. These are deemed confidential in was an attorney, and that he was employed the interest of the client, and privileged for as such by the deceased at the time the deed his protection; but when communicated to was written. It is thereby established that other persons, and when others are allower the relation of client and attorney did exist the same opportunities of knowledge that at the tine the deed was executed between the attorney possesses, the confidential relaStone and the intestate. It is, however, con- tion necessarily did not exist, and the privitended that, inasmuch as the privilege which lege does not attach. In the present case the the law allowed is for the benefit of the cli- communication which was claimed to be ent, and not counsel, the rule relates only to privileged was transmitted to the attorney confidential coinmunications existing be in the presence of the other party to the concance of such relation: that, inasmuch as tract. . It is true that by agreement between the communication made by the client to the them the public were not to be informed of attorney was in the presence of the other their private arrangement. Not because party to the contract, it was not in law such such information would add to the strength a nonfidential communication as could not be or increase the weakness of either side. The giren in evidence by the attorney. There parties were apparently in full accord. No seins to be very much force in this conten.' differences existed between them, and in or.

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der to carry out terms upon which they were the trial of this case, which accompanies the fully agreed the communication was made to record, discloses that in his opinion the proof the attorney in the presence of both, and the otiered to establish the fact of the promise secrecy necessary to be observed did not af by the intestate to repay the plaintiff the fect the contract, but was for the purpose of sum of $2,300 paid under the circumstances avoiding criticisms and questions of stran- detailed was an effort to ingraft on the deed gers to their agreement. It is the secrets of a verbal agreement inconsistent with its the client which affect his right that the law terms. We do not so understand it. The acdoes not permit the attorney to divulge, and tion which was instituted was in the nature it seenus to be well settled on authority that of an action for money had and received, if the communication made by the client to which always lies where another is in posthe attorney is in the presence of the other session of money which, er æquo et bono, party to the contract, and it comes within ought to be paid to the plaintifi. The deed his knowledge, such communication is not em- recites a consideration of $2.800. It is true braced in the rule which prohibits that it that the proof submitted tended to show that may be given in evidence by the attorney the true consideration was not $2.800, nor when called on so to do. Mr. Weeks, in any other amount of money, but was the 159 of his treatise on Attorneys at Law, de- payment of a debt claimed by the petitioner clores as an exception to the general rule to be due him by the intestate to the amount which we have stated that the statements of of $2,800, and that, while the petitioner parties made in the presence of cach other paid to the intestate $2,800, it was on an may be given in evidence by attorneys, be agreement that the land was in fact conveyed cause sucı statements are not in their na- to pay the debt, and the $2,800 paid to the ture confidential, and cannot be regarded as intestate was to be repaid to the petitioner. privileged. Mr. Wharton, in his Law of Such an agreement in no wise affects the Evidence ($ 587), on authority says: “Privi- validity of the deed, nor does it change any lege, also, has been held not to extend to com- of its terms. It is true that it shows the munications made to counsel in the presence consideration to be different from that which of all the parties to the controversy.” In is expressed in the deed. The consideration the case of Brand v. Brand, 39 How. Pr. 193, of a deed may be inquired into without afit was ruled that communications to counsel, fecting the terms of the contract, and, whatmade in the presence of the adverse party, ever was the consideration of the deed, are not privileged, and the counsel is a com- whether it was $2.800, as expressed, or petent witness thereon. The same ruling is whether it was the payment of a debt of made in Britton v. Lorenz, 45 N. Y. 51. In $2,800,--really becomes immaterial. So that Hummel v. Kistner, 182 Pa. 216, 37 Atl. 815, there was a consideration, and the effect of it was ruled that “on a bill in equity to set the instrument under this proof is to vest aside a deed made by a father in his lifetime in the grantee all the title which the grantor to his daughter, declarations of the deceased possessed. Nor do we think, as suggested in to his attorney while he was writing the deed his opinion by the judge, that the evidence are not privileged, when made in the pres shows that the right of action, if any there ence of both parties to the transaction." In

was, was in the wife of the petitioner, and this connection, see also Wyland v. Griffith, not in him. The suit was not instituted on 96 Iowa, 24, 64 N. W. 673; Frank v. Morley, the original agreement to pay Mrs. Stone 106 Mich. 035, 64 N. W. 577; Rice v. Rice, for the board of the intestate. It has for its 14 B. Mon. 417; Whiting v. Barney, 30 N. Y. foundation the agreement on the part of the 330, 86 Am. Dec. 385. Our own court seems to have recognized the same rule. In the

intestate to repay to the petitioner the

amount of money which he turned over to case of coroctt v. Gilbert, 24 Ga. 454, it was ruled that an attorney who is called on to the intestate under the agreement alleged. write a bill of sale is not prohibited by the We are not to be understood as passing on statute from giving evidence of a conversa

the merits of this case, nor deciding as to tion between the parties in relation to the whether the evidence offered was sufficient contract. and in the case of Broun y. Mal to establish the contention of the plaintiff. theus, 79 Ga. 1, 4 S. E. 13, this court, in dis- The questions of fact involved must be de cussing the statute now under consideration, termined by the jury. For the reasons which said, "Furthermore, what is known to both we have viven, it is our opinion that the eviparties is not a confidential secret in a sub-dence of Maj. Key was admissible, and we sequent controversy between them.” See al might go further, and add that without it so Burnside v. Terry, 51 Ga. 186. See also the case ought to have been submitted to the in this connection O'Brien v. Spalding, 102 jwy for determination of the facts. As it Ga. 490, 31 S. E. 100, and notes to same case is, we think the judge erred in ruling out as reported in 66 Am. St. Rep. 202-213. We the evidence of Key, and that he likewise are of the opinion, under the authorities erred in granting a nonsuit. cited above, that the court erred in ruling The judgment is therefore reversed. out the testimony of Maj. Key.

2. An examination of the opinion of the All the Justices concur, except Fish, J., very able and careful judge who presided in / absent on account of sickness. 50 L. R. A.

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