Milam 7's. Solomon. which is the prosecution of his lien, within one year from the time the said debt became due. To this affidavit was attached an account for the sum claimed. By counter-affidavit the case was carried to the superior court, where a motion to dismiss was made (1) Because the affidavit did not state that the articles had been furnished by the deponent. (2) Because the affidavit did not state or show that the demand for payment, and the refusal to pay, was made after the debt became due, nor when the said demand was made. (3) Because it does not appear that the demand was made by deponent, nor by any one authorized to make it for him. The motion to dismiss was sustained by the court and the plaintiff excepted. Under the ruling in 46 Ga., 197, the affidavit to foreclose this lien could be upheld; but we are unable to reconcile that decision with the one made in 54 Ga., 138, wherein it was held that such an affidavit was insufficient in law to be the foundation of this statutory proceeding. The consideration of the same question was before this court again in 56 Ga., 148, and there the ruling in the 54th was followed. It was held that the demand for payment and the time must not be left to implication: "It must be averred in the plaintiff's affidavit that a demand for, the payment of the debt, after it became due, has been made on the owner, his agent or lessee, and that he has refused to pay." This, then, being the judgment of the court, so distinctly enunciated on this question, we are constrained to follow it, and to hold that the affidavit is defective, and that the judgment below must be, and is hereby, affirmed. Judgment affirmed. 66 57 66 57 125 517 I. In a suit against a railroad company for damages resulting from a fall from a buggy, caused by the frightening of the plaintiff's 123 358 horse by the blowing of defendant's whistle, what the plaintiff said a short time after the injury was done, at a place some distance off to which he went, as to the malice of defendant's agent in blowing the whistle, was not admissible in his own behalf as part of the res gesta. 2. What defendant's engineer said some time after the injury and at a different place, indicating the state of his feelings toward the person injured, was not admissible against defendant. 3. No error was committed which could have injured the plaintiff and the verdict was not contrary to the law or the evidence. Evidence. Res gesta. New trial. Before Judge LAW- SON. Newsom brought case against the Georgia Railroad. The gist of his case, as alleged and sought to be proved, was this: That he was driving in his buggy alongside the track of the defendant, when he saw its train stopping at a crossing for the purpose of discharging passengers; that, fearing that his horse might be frightened, he drove rapidly to a point where he could leave the line of the railroad track, drove some distance off from it, turned his horse facing the track, and stopped; that the train started, and, as it reached a point opposite the plaintiff, the engineer, who had previously had a difficulty with plaintiff, shook his fist at him; that plaintiff shook his fist at the engineer, and the latter gave two short, shrill whistles of the engine; that this frightened plaintiff's horse so that he was was thrown from the buggy and badly hurt. On all the material points the evidence was conflicting. -whether the whistle was blown at a point not necessary for the business of the road, whether the blowing of the whistle or the plaintiff's carelessness in handling his horse Newsom vs The Georgia Kailroad. caused the injury, and as to the amount of damage sustained. The jury found for the defendant. Plaintiff moved for a new trial on the following, among other grounds: (1) Because the verdict is contrary to the law and the evidence. (2) Because the court rejected from evidence the statement made by plaintiff some six or seven minutes after the accident, at a house about 400 or 500 yards from the point where it occurred, to the effect that the engineer blew the whistle out of malice, that he shook his fist at plaintiff and blew the whistle to scare his horse. (3) Because the court refused to allow evidence of the statement of the engineer, while on his engine at Union Point, some time after the accident (which occurred some miles away), to the effect that he wished he had killed plaintiff. (4) Because the court charged concerning contributory negligence and its effect. The motion was overruled, and plaintiff excepted. M. W. LEWIS & SONS; E. C. KINNEBREW, for plaintiff in error. J. A. BILLUPS; J. C. REED; W. W. LUMPKIN, for defendant. JACKSON, Chief Justice. This was an action brought to recover damages from the Georgia Railroad Company on account of the engi neer's blowing the whistle of his locomotive and frightening the plaintiff's horse, whereby the plaintiff was thrown from his buggy and injured. The case has been here twice before-60 Ga., 492; 62 Ga., 339. This is the third verdict for the railroad company rather an unusual occurrence-and unless there has been material error of law it ought to stand, Du Bignon vs. Tufts-Tufts vs. DuBignon. 1. There is no error in the first ground of the motion for a new trial. What the plaintiff said, sometime after the occurrence, in respect to the engineer's fault in blowing the whistle and shaking his fist first at him, is not res gestæ, and admissible as such. Besides, the plaintiff swore to the same fact on the stand. 2. What the engineer said about it after he got to Union Point, a station some distance from the place where the accident and injury occurred, and especially about his malice toward plaintiff, was not admissible against the railroad. 3. Whether or not the court erred in charging on contributory negligence, the plaintiff was not and could not have been hurt, the jury having found for defendant— that is, that his own fault and negligence in taking care of himself had caused the injury. That was a question of fact for the jury. There was testimony on both sides of the issue, and on the assignments of error the court having committed none, and the evidence being sufficient to support this, the third verdict, it must stand. As a general rule, under the English common law, and our own growing out of it, facts are for the jury, law for the court. Judgment affirmed. DUBIGNON vs. TUFTS. TUFTS vs. DUBIGNON. 1. A justice of the peace of one county may administer the oath and issue the warrant necessary to dispossess a tenant holding over in another county. 2. An affidavit to dispossess a tenant holding over cannot also serve the purpose of recovering personalty. But the inclusion of personal property therein may be regarded as surplusage, and does not vitiate the entire proceeding. 3. It is not competent to show by parol testimony that a demurrer had previously been made on the same grounds as those urged at a subsequent trial and overruled, and that those grounds were res adjudicata. Jurisdiction. Du Bignon 7's. Tufts-Tufts vs. DuBignon. Justice of the Peace. Actions. Evi- dence. Before Judge PATE. November Term, 1879. Tufts went before a magistrate of Chatham county and made an affidavit to dispossess Du Bignon, as a tenant holding over, of certain land in Glynn county. The affidavit also stated that DuBignon was in possession of certain described personal property, which he had leased from deponent, and that he failed to deliver both the realty and personalty, on demand, after the expiration of the lease. The justice issued a warrant covering both realty and personalty. Defendant filed his counter-affi. davit, and also moved to dismiss the proceedings on the following grounds: (1). Plaintiff seeks to get possession of personal property under a warrant to dispossess a tenant holding over. (2). Because the affidavit was made before a justice in Chatham county and a warrant issued by him to dispossess a tenant of property in Glynn county. (3). Because there was no pleading before the court on which a verdict could be based. The plaintiff filed a plea, in the nature of a plea of former recovery, alleging that at a former term a verbal demurrer had been made on the first two grounds now urged, and had been overruled ore tenus, that these questions were therefore res adjudicata; that these proceedings had never been reduced to writing, but he offered to show them by parol. The court refused to allow this, and plaintiff excepted pendente lite. The court sustained the demurrer as to the personalty, but held that the allegations as to it might be considered as surplusage, and overruled the other grounds. The jury found for the plaintiff the land in dispute. Defendant moved for a new trial, which was refused, and he excepted. IRA E. SMITH; SYMMES & ATKINSON, for DuBignon. H. C. CUNNINGHAM; GOODYEAR & HARRIS, for Tufts. |