to this charge seems to be that it withdrew from the consideration of the jury the question whether the confessions were voluntarily made. This part of the charge we are not satisfied with; and, if the case were a close one, it might operate to reverse the judgment of the court below; but the verdict of the jury in this case was demanded by the evidence, and, whatever error there may have been in the charge excepted to, it did not work any injury to the plaintiff in error. Judgment affirmed. (77 Ga. 614) COUNTY OF FLOYD v. ROME ST. R. Co. (Supreme Court of Georgia. March 5, 1887.) 1. HORSE AND STREET RAILWAYS-APPROPRIATION Or Bridge-COMPENSATION. The corporate limits of the city of Rome extended to the further bank of a river, across which the authorities of Floyd county built a bridge, connecting a street of the city with its continuation beyond the river, and placed the bridge under the control and management of the municipal authorities, who took charge of it, and engaged to keep it in repair, but stipulated that, in case of its destruction by flood or from any other cause, they should not be bound to rebuild it. Under the power contained in its charter, and with the consent of the corporate authorities both of the county of Floyd and the city of Rome, a street railroad company constructed its tracks across the bridge, and ran its cars backward and forward over it until the bridge was washed away by a flood. The county replaced the old bridge by a new structure upon the same site. In a suit by the county to enjoin the company from laying its tracks over the new bridge without making compensation therefor, held that, the bridge being deemed, under the statute, to be a part of the street, the laying of the tracks upon it was not an appropriation of it to a different use, and therefore the company having power, under its charter, to lay its tracks across it, was under no obligation to compensate the county. 2. SAME ASSENT OF COUNTY-REVOCATION. Held, also, that, even if the assent of the county had been necessary, under the charter, it had been given when the county consented to the laying of the tracks upon the old bridge, and, having once been given, the license arising therefrom could only be revoked by legislative act. Error to superior court, Floyd county. Dabney & Fouche, contra. HALL, J. On the twelfth of December, 1884, an act of the general assembly of the state was approved, entitled "An act to incorporate the Rome Street Railroad Company, and to define its powers; the mayor and council of the city of Rome having given its consent to the authority hereinafter granted, said consent being evidenced by a certified copy of the official action of said mayor and council exhibited in both branches of the legislature before the passage of this bill." The second section of the act gave power and authority to the corporation "to survey, lay out, construct and equip, use and employ, street railroads in the city of Rome and Floyd county, to-wit, from the railroad depot in East Rome, through Howard street, to Broad street, and through the whole length of said Broad street, and along the extension of Broad street to the bridge across the East Tennessee, Virginia & Georgia Railroad, in the town of Forrestville, and also through South and Bridge streets, or any parts thereof, and through Court street, and any other street in said city, and through any and all future extensions of said streets, or any of them; and said company may use, as motive power for their cars, horses or electricity, or under-ground cables driven by steam, or any other appliance that may hereafter be invented or used as motive power." The bridge that spans the river at the foot of Howard street at that time belonged to the county of Floyd, and by it was placed under the control and management of the authorities of the city of Rome. The street-railroad company, which was then being formed, applied to the municipal authorities of Bome for leave to lay its rails on, and run its cars over, this bridge at the foot of Howard street. In taking charge of this bridge, and engaging to keep it in repair, the city authorities stipulated that, in case of its destruction by flood or from other cause, they should not be bound to rebuild it. Upon the making of this application by the street-railroad company the city authorities applied to the commissioners of roads and revenues of the county for their consent to the use of the bridge as contemplated by the company, and that body, on the sixth of October, 1884, passed an order in which it was stated that they would not object to the city of Rome granting the right to the street-railroad company to cross the Howard street bridge, provided no obstruction to public travel should arise therefrom; and also that the franchise be limited as to time. They further ordered that permission be granted to said street-railroad company to construct its tracks upon the public roads between Rome and Forrestville, provided the same did not interfere with public travel. Under the powers granted them in their charter, and the consent of the corporate authorities, both of the county of Floyd and of the city of Rome, the streetrailroad company constructed their tracks across the bridge at the foot of Howard street, and ran their cars backward and forward over the same until the bridge was washed away by a flood in the month of April, 1886. The county replaced the old bridge by a new structure upon the same site. Then the street-railroad company set about laying its rails over this new structure, to which the county authorities objected, unless they would agree to pay for the privilege of thus using the bridge. This they refuse to do, and this bill was brought to enjoin their use of the bridge until they compensated the county for the servitude to which it was subjected. Upon the hearing of the application the chancellor refused the injunction prayed for by the county, and to this decision exception was taken by the complainant in the bill. The only question made by the record therefore is whether the legislature has authorized the street-railroad company to appropriate this bridge to its use in the manner claimed by it, without the county's consent, and without making it compensation. This bridge, as originally constructed, and as now constructed, is wholly within the limits of the city of Rome, as appears from an act approved on the seventeenth of February, 1874, (Acts, 199.) Section 5 of said act declared "that the boundaries of said city shall extend to and include the south-eastern or opposite bank of the Etowah river, and the north-western or opposite bank of the Oustanaula river, at all points where said rivers are adjacent to said city." The bridge forms a continuation of the streets of the city across the river, and is a part of the same. Section 5, Code, declares that “highway” or “road” includes bridges over the same. Although "a distinction has been suggested between highways in the open country and streets within the limits of cities or populous villages, according to which the latter may be used for more various uses than the former, as for laying gas and water pipes, or for any other like purposes conducive to the comfort and health of the inhabitants, but, as both the highway and the streets are appropriated for the same general purpose, and a highway in a district sparsely inhabited at one time may, by the growth of population, become a street in a city, this distinction does not appear to rest on a sound basis. Pierce, R. R. 232, and cases cited in notes 2 and 3. The laying of railroad tracks in a public highway or street does not subject it to a new use or servitude. Its use "is not confined to the precise mode or kind of use which was in view at the time of the taking, but may extend to other modes which were then unpracticed and unknown. When property has been taken for a public use, and full compensation made for the fee or a perpetual easement, its subsequent appropriation to another public use certainly if one of a like kind-does not require further compensation to the owner." Id. 233. A railroad operated by horses on a public highway is not an appropriation of that highway to a different use. In some states the decisions go so far as to hold that the appropriation of a highway to the use of a railroad propelled by steam would not change the use to which it was originally dedicated, while in others they are just the contrary. Upon this subject, vide Pierce, R. R. 234-240, inclusive, with citations in the notes. "The legislature, unless restricted by the state constitution, may, even without the consent of a municipality, and without allowing it compensation, authorize railroads to be laid in its highways. If the city or town is deemed the owner of the fee, it holds the interest as trustee of the public, without title to compensation as a proprietor. The statute, however, may require the consent of the municipality." Pierce, R. R. 246, and citations in note 5. It appears from those cases that the law, as thus laid down, has been recognized and acted upon in a number of states of the Union, including our own state. Vide, especially, Savannah & T. R. Co. v. Savannah, 45 Ga. 602; City of Atlanta v. Gate City Gas-Light Co., 71 Ga. 123-125,-where this question is examined and discussed. But even had the consent of the county of Floyd been required to this use of the bridge by the street railroad company, that assent was given; and, when the condition on which it was accorded was accepted and acted upon by the company, it became a binding contract until the license was revoked by the only authority having power to revoke it. "Where the statute authorizes the laying of rails on a highway, with the assent of the municipal body, such assent, when given, is irrevocable." Pierce, R. R. 247, and citations in note 9. The precise point insisted upon by counsel for the county is that where any part of a public street or highway is washed out, or otherwise destroyed by any means, and the damage is repaired by a new structure upon the portion thus destroyed or rendered unfit for use, this gives the county a right to exact additional compensation from a railroad company which, previous to the injury, used the street or public highway with the assent of the municipality, where the railroad company proposes to make the same use of the street or highway after it has been repaired. We certainly know of no case which has carried the right of compensation for its use to this extent, and think that its recognition and enforcement by the courts would work great injury to the prosperity of the community. The right of this corporation to the use of this bridge accrued, as it seems from the record, and was complete, before the passage of the act of October 7, 1885, amending its charter, and giving it authority to extend its line over the towns of East Rome, South Rome, Forrestville, and De Soto, and as far as five miles beyond the corporate limits of the city of Rome, along any public road leading into the city. And the proviso contained in the second section of that act, requiring that the consent of the board of commissioners of roads and revenues of the county of Floyd shall be had before the company shall extend its line along any of the public roads outside of the corporate limits of the said towns, has no application to that portion of the street railroad which crosses the bridge located at the foot of Howard street, and passes into these towns. This amendment was not intended to restrict or limit their franchise, but to extend it, by its compliance with the condition named in the act. Judgment affirmed. (78 Ga. 129) HARREL v. Broxton. (Supreme Court of Georgia. February 26, 1887.) 1. PROMISSORY NOTES-ACTION BY INDORSEE-NOTICE OF DISHONOR. In an action by an indorsee, who was the son of and living in family with the payee, to recover the amount of two notes, the one of which matured nine months before the other, where the testimony introduced on behalf of the defendant shows that the notes were given in payment of the price of a ginning-machine, and that the ginning-machine would not work, and was worthless, and the payee, who was the only witness examined for the plaintiff, testified that he owned the note sued on which was first due, while his son, the plaintiff, had acquired the other for value before maturity, there is sufficient evidence to warrant a finding that the consideration of the notes had failed, and that the plaintiff took them with notice of dishonor. 2. SAME SEVERAL NOTES CONSTITUTING ONE TRANSACTION. If one receives a note after it is due, the non-payment at maturity is notice to him of dishonor, and he takes it subject to all the equities existing between the original parties thereto; and if there be several notes constituting one transaction, but due at different times, the fact that one is overdue and unpaid is notice to the purchaser of all to put him on his guard as to each. Code Ga. 2786. Error to superior court, Dooly county. Action to recover amount of two promissory notes. Judgment for defendant. The plaintiff appeals. The opinion states the case. Martin & Cochran, for plaintiff in error. Jordan & Watson and W. L. Grice, for defendant in error. BLANDFORD, J. The plaintiff brought his action against the defendant upon two promissory notes,-one for $100, due December 1, 1882, and one for $160, due October 1, 1883, both dated August 18, 1882. The defendant filed a plea of failure of consideration. The jury returned a verdict for the defendant upon the issue formed upon this plea. The plaintiff moved the court for a new trial upon the ground that there was not sufficient evidence to sustain the verdict. The court overruled the motion, and this is assigned as error. Upon the trial of the case the defendant was sworn as a witness, and he testified that the consideration of the notes was the purchase of one engine from Levi H. Harrell, the payee on the notes. That the engine was purchased for the purpose of ginning cotton. That the same was worthless, and would not gin more than 40 or 50 pounds of cotton per day. That he had a skilled machinist to try to run it, but he failed. He had to buy a new engine. That the whole transaction was had with L. H. Harrell, the payee. That he met the plaintiff frequently, but he never said anything about the notes and his owning them, nor did he demand payment thereof. That, at the time of the maturity of the $100 note, Watson, defendant's counsel, had it. He could not say that the plaintiff did not own the $160 note before it was due. The engine was fired up and run, but did not gin. When he bought the engine, nothing was said about warranting the same. It was fired up and run, but no cotton was put in. He tried it three or four days, and could do nothing with it. He saw L. H. Harrell at Watson's, and Lewis at Hawkinsville, and afterwards at the association, and told him, if he would come and make it good, he would have nothing more to say. That he had notified him before that he could not make it work. That he offered him $50 and the engine to take it back. Harrell dodged the defendant when he told him to come and run the engine, and finally told him he had no time to bother with it. The plaintiff never did tell him he owned the note, and L. H. Harrell never did tell him that plaintiff owned the note, nor any one else. Old man Broxton testified that the engine was worthless for ginning. J. C. Fullington testified that he saw the engine, and it would not gin. The boiler was four-horse power, and the engine six-horse power. Nothing was the matter with the engine, but the boiler was too small for the engine. He considered it worthless as it was for work. He leveled it, and fixed it up, but could not make it perform when there was any cotton in the gin. Levi H. Harrell was sworn for the plaintiff, and testified that he owned the $100 note, but that his son, the plaintiff, owned the $160 note, and had continuously owned it since before it was due. He traded it in good faith to his son for a horse. He has the horse now. He sold the engine to the defendant, but has never owned the $160 note since before maturity. He did not sue it, and never gave it to Kibbee & Martin to sue. He did not give the plaintiff any notice of defense against the note. Witness owned the engine two years, and ginned all the neighborhood cotton. One year he ginned 118 bales of cotton with it, and the other, 126. He ginned three bales a day. He did not warrant it, and refused to warrant it, but told the defendant what he had done. He fixed it up, and showed the defendant how it would work. The plaintiff lived at the witness' house at the time the defendant bought the engine; is now married, and lives near witness; and is witness' son. Witness never did tell the defendant that his son owned the $160 note, or that he had traded it to his son; does not know that defendant knew it. This is all the testimony submitted in the case, and the impression left upon the mind is that there was something left out. There is a lack of completeness about it. Juries are taken from the neighborhood because they are supposed to know something about the facts of the case, the maxim of the common law being vicini vicinorum præsumuntur scire; and this maxim can be well applied to this case. The jury may have concluded, from the fact that the son lived with the father before and at the time he sold the engine to the defendant, that he knew the consideration of the note sued on, and that he also knew that the engine was worthless. Furthermore, it appears that the $100 note now belongs to L. H. Harrell. It became due in 1882. The $160 note became due in 1883. The plaintiff is in possession of, or was in the control of, the $100 note. He brought suit upon it in his own name, and yet it belongs to the father. It may be that the plaintiff never became the owner of the $160 note until after the $100 note was overdue; and, if such was the fact, then the law is that, if the holder receives the note after it is due, its nonpayment at maturity is notice to him of dishonor, and he takes it subject to all the equities existing between the original parties thereto; and if there be several notes constituting one transaction, but due at different times, the fact that one is overdue and unpaid is notice to the purchaser of all to put him on his guard as to each. Code, § 2786. So we cannot say that there was no testimony to support this verdict, and that there is nothing upon which the jury might have founded the verdict in favor of the defendant. The presiding judge who tried the case is satisfied not to disturb the verdict; and we cannot say that there was error in his refusing to grant this new trial; and the judgment is affirmed. (78 Ga. 81) CAUDLE v. RICE, Assignee. (Supreme Court of Georgia. February 26, 1887.) 1. EQUITY PRACTICE-PARTIES-SET-OFF OF JUDGMENTS. To a suit in equity brought by a judgment debtor seeking to have another judg ment set off against the judgment against him, attorneys of the judgment creditor who claim an interest in the judgment are entitled to be made parties. 2. ATTORNEY'S LIEN ON JUDGMENT-HOW AFFECTED BY SET-OFF. An attorney's lien upon a judgment, where the statute makes it superior to all other liens except for taxes, cannot be affected by the set-off, against the judgment, of a judgment against the plaintiff purchased by the defendant after the recovery of judgment against himself.1 Error from Fulton county. Arnold & Arnold, for plaintiff in error. Abbott & Smith, contra. BLANDFORD, J. Caudle obtained a judgment in the city court against Rice. Reuben Arnold and William Gay were his attorneys. Rice purchased, after the judgment of Caudle had been obtained, from Kimbro a judgment which he alleges Kimbro had obtained against Caudle. This latter judgment was obtained in the superior court. Rice applied to the city court to set off the 'The attorney has a lien on the judgment he recovers which no set-off can defeat or impair. Kinney v. Robinson, (Mich.) 29 N. W. Rep. 86. But see, to the contrary, Bank of Winterset v. Eyre, 8 Fed. Rep. 733; Bosworth v. Tallman, (Wis.) 29 N. W. Rep. 542. |