171 Vaughn et al, adv. Norfleet & Jordan 830 W. Walden, adm'x, adv. County of Lee... 664 Z. western Railroad 311 828 820 York vs. State.. 197 551 1. Agreed copies of certain court papers were used in evidence on the trial of a case, and on the motion for new trial were attached to the brief of evidence, with the agreement that they be used on the motion for new trial, and if the case should be carried to the supreme court that they should be copied in the record as part thereof, in all respects as though they had been copied out into the brief of evidence, and the brief so formed was examined, approved and filed in office. On exception to the overruling of the motion for new trial the bill of exceptions recited that "a brief of the testimony introduced on the trial has been filed under the revision and approval of the court, and is a part of the record of the cause, identified by the signature of the judge appended to the agreement of counsel to said brief of evidence:" Held, that the brief of evidence was fully authenticated, and the case will not be dismissed. 2. That the agreement of counsel to a brief of evidence recites that it consists of a certain number of pages, and when the same is copied by the clerk, it covers in the record more than that number of pages, is no cause for dismissal. (On the merits.) Gordon vs. Mitchell. I. That a vendor had no personal knowledge of the items of account on which he sued at the time when they were made, was no ground for the exclusion of his testimony, where it appeared that after the goods were furnished he and the defendant went over the account together and agreed to its correctness. 2. The verdict is upheld by the evidence. 3. A contract to sublet, sublease or hire out convicts leased from the state, is illegal. (a.) A contract for one as an agent of a lessee of convicts to work them according to law on the place of the lessee would be legal, but for a lessee to turn over convicts to another to be carried away and worked by him for his own use at another place, would be illegal. (b.) If upon the dissolution of a firm one partner, who was a lessee of convicts, put certain of them in charge of the other partner, by whom a contract was made with a creditor of the firm to let him have the labor of such convicts for eight years in payment of the firm debt, and the partner who was a lessee shortly thereafter resumed control and took the convicts from the creditor, such facts would not constitute accord and satisfaction of the firm debt. 4. Requests to charge not based on the testimony were properly refused. 5. The judge of the superior court may grant a new trial on terms; or may propose terms, and on their refusal in advance by counsel, may refuse a new trial. Such practice will not work a reversal of his judgment. Practice in Supreme Court Evidence. tracts. Charge of Court. New Trial. rior Court. Before Judge HILLYER. Court. March Term, 1881. Reported in the decision. Verdict. ConPractice in Supe Dekalb Superior VAN EPPS & CALHOUN, for plaintiff in error. CANDLER & THOMSON, for defendant. JACKSON, Chief Justice. (On motion to dismiss writ of error.) A motion was made to dismiss this case on the ground that the evidence in the record-particularly the documentary part thereof, is not authenticated in the bill of Gordon vs. Mitchell. exceptions and record, so as to show that it is that which the superior court had before it on the trial before the jury and on the motion for a new trial. The bill of exceptions recites that "a brief of the testimony introduced on the trial has been filed under the revision and approval of the court, and is a part of the record of the cause identified by the signature of the judge appended to the agreement of counsel to said brief of evidence." In the record is the following agreement: "It is hereby agreed that the above and foregoing one hundred and eleven pages, including the charge of the court, contains a true copy of all the documentary and a brief of all the oral evidence adduced on the trial of the above stated case, and it is further agreed that the agreed copy of the bill, exhibits, and order and other writings hereto attached, used on the trial of this case may be used on the hearing of this motion for new trial, and that the same in the event that this case is carried to the supreme court by either party, may be copied into the record by the clerk and become a part of the record in this case, in all respects as if the same had been copied in the above agreed and approved brief of evidence. This the fourth day of April, 188-." This was agreed to by counsel, and examined, and approved, and ordered filed by the judge on the 4th of April, 1881, and on that day filed in office by the clerk. So that in the bill of exceptions, which the judge certifies to be true, it is alleged that the brief of evidence has been filed under his approval, and is identified there by his signature to the agreement; and in the record there it is identified just as the bill of exceptiors says that it is; and thus the one hundred and eleven pages contain the evidence, oral and written, used on the trial, and all this the clerk has copied and sent up as part of the record pursu ant to the order. Therefore, it is clear that we have here authenticated by the judge, all the evidence he had before the jury on the trial, and before himself on the motion. It does not matter that it took more than one hundred and eleven pages by the clerk in copying. Those one hundred and eleven pages were filed, and he Gordon vs. Mitchell. copied them. The evidence, therefore is sufficiently identified by the judge. This case differs from 61 Ga., 337, in this, that the evidence is expressly approved here by the court in the record, as well as referred to in the bill of exceptions. It differs from 64 Ga., 668 in this, that from the agreement here it appears that copies, and not orignal office papers, such as interrogatories, indictments and warrants as in that case, nor any original paper of any sort, were used on the motion in this case; also, that the one hundred and eleven pages ordered to be filed contained the copies which were filed, and are sent up here as a part of the record. The duty of the clerk is to copy that which the judge orders of file as the evidence on the trial; and this he has done. All the oral evidence comes here copied by the clerk as of file in his office; why not the documentary, if ordered to be filed there, as part of the record? Therefore, we think that all this evidence is referred to in the bill of exceptions, and also authenticated by the judge in the record, and is that which was used on the jury trial and on the motion before him, and is certified by him. as so used. Motion to dismiss denied. CRAWFORD, Justice. (On merits of case.) In April, 1880, John D. Mitchell brought suit against Cox & Gordon in the superior court of Dekalb county on an open account, to which the defendant, Gordon, pleaded the general issue and accord and satisfaction. The defendant, Cox, filed no pleas. The plea of accord and satisfaction filed by the defendant, Gordon, was based upon the fact of a dissolution of the partnership, and in which it was agreed between them that the liabilities of the concern were to be paid by Cox, and that Cox afterwards entered |