Political and civil code amendments. or attorney, may file his affidavit that he has good defense to the action, and the bond given in such attachment is not sufficient in amount, or is not a good bond, and the ground of its insufficiency; and when such affidavit is made and delivered to the levying officer, he shall return such attachment, together with the affidavit, to the judge of the superior court of the county in which attachment issued, who shall, as soon as practicable, and on such notice to the plaintiff, his agent or attorney, as he may prescribe, hear testimony as to the amount of the sufficiency of the bond, and in his discretion may require additional security or a new bond to be given within the time prescribed by him, and in default thereof the levying officer shall dismiss the levy made under such attachment; [provided, however, a. 1899, p. that in all cases where the levying officer has returned the affidavit into the court, where the same is returnable, the affidavit hereinbefore referred to shall be, by the levying officer, returned into said court, and the judge of said court, or the justice of the peace, if in a justice court, shall, without delay, hear testimony as to the sufficiency of said bond, and may, in his discretion, require additional security or a new bond, to be given within such time as he may prescribe, and in default of such additional security or new bond, the levying officer, or the sheriff, or other officer of the court where said attachment. has been returned, and who may have taken charge of said levy under said attachment, shall dismiss said levy, and return the property of the party entitled thereto.] § 6194 (4641). Affidavit in lieu of bond.—If the party applying for the writ of certiorari shall make and file with his petition an affidavit, in writing, that he is advised and believes that he has good cause for certioraring the proceeding to the Superior Court, and that owing to his poverty he is unable to pay the cost or give security, as the case may be, as required in § 4640, such affidavits shall in every respect, answer instead of the certificate [or] bond above mentioned [as the case may be]. Bond approved by Superior Court judge but not judge of court from which the case came, writ void. Hamilton & Co. v. Phoenix Insurance Co., 107 Ga., 728. 37. A. 1897, p. 33. 38. § 6195 (4653). Certiorari when Justice dies. In all cases now pending, or which may be hereafter pending in the superior courts of this State upon certiorari from any justice's court [or or- A. 1899, p. dinary's court] and the justice or justices or ordinary before whom the case was tried may have died before answering the writ of certiorari served, then it shall be the duty of the judge [who granted A. 1899, p. the writ of certiorari] forthwith [whether in term time or vacation] to order a new trial to be had upon the case in the court below. § 6196 (4685). To what condemnations applicable.-The method of condemnation of property and assessment of damages hereinbefore provided shall apply to condemnation by cities, counties, railroads, telegraph, canal, mining, and waterworks companies, drainage by 38. A. 1897, p. 34. 54. Political and civil code amendments. counties, tramroads, lighthouses and beacon constructions, and to all persons or corporations having the privilege of exercising the right of eminent domain; [ ] [provided, however, that when a telegraph A. 1898, p. company undertakes to condemn so much of the right of way of a rail- Appeal, failure to provide for, not render condemnation unconstitutional. § 6197 (4786). Proceedings to partition.—In all cases where two or more persons are common owners of lands and tenements in this State, whether by descent, purchase or otherwise, and no provision is made, by will or otherwise, as to how such lands and tenements are to be divided, any one of such common owners may apply to the Superior Court of the county in which said lands and tenements A. 1900, p. are situated at term time, or the Judges thereof at Chambers] for a writ of partition, which application shall be by petition, setting forth plainly and distinetly the facts and circumstances of the case, de Polit cal and civil code amendments. scribing the premises to be partitioned, and defining the share and interest of each of the parties therein. 39. § 6198 (4927). In application to enjoin cutting timber.--In all applications to enjoin the cutting of timber for sawmill purposes, and railroad ties, and bridge timbers for railroad purposes, or to enjoin the cutting of timber or boxing, or otherwise working the same for turpentine purposes, it shall not be necessary to aver or prove insolvency, or that the damages will be irreparable; provided, the petitioner has perfect title to the land upon which the timber is situated [or who has perfect title to the timber upon any lands], and A. 1899, p. shall attach an abstract of his title, stating name of grantor and grantee, date, consideration and description of property, names of witnesses, when and where recorded, to his petition, and produce the original titles before the judge; and provided, that the judge granting said temporary restraining order shall require the petitioner to give such bond as in his discretion he may deem proper, to be approved by the clerk of the superior court, to answer the damages, if any, which may be sustained by the defendant, by reason of the granting of said injunction, and if, in the final hearing of the cause, damages against the petitioner are proven, judgment shall be entered against the sureties on said bond as in appeal cases. Abstract of title, attaching of, waived under facts of this case. Grant of injunction not recognized. Baxter v. Maddox, 106 Ga., 348. Abstract of title need not be attached, nor bond given. where the plaintiff alleges and proves the insolvency of the defendant. Smith v. Smith, 105 Ga.. p. 106. Discretion in refusing injunction not abused under special facts here. Clyatt v. Barbour, 111 Ga., 130; Camp v. Dixon, 111 Ga.. 674. Equitable partition, where claim of "perfect title " depends upon allegations Injunction to prevent cutting and removal of timber, granted when. Camp v. "Perfect title," how shown. Aliunde evidence not allowed to explain appar- "Perfect title" must be a duly executed paper title, consisting entirely of papers capable of being recorded. Dixon, Mitchell & Co. v. Monroe, 112 Ga.. 158. § 6199 (5057). Verification of amended answer required.—The defendant, after the time allowed for answer has expired, shall not in any case by amendment set up any new facts or defense of which notice was not given by the original plea or answer, unless at the time of filing such amended plea or answer containing the new matter ho shall attach an affidavit that at the time of filing the original plea or answer he did not [omit the new facts or defense set out in the A. 1897, p. amended plea or answer for the purpose of delay, and that the amend: ment is not now offered for delay, or unless, in the discretion of the court, the circumstances of the case or substantial justice between 35. A. 1900, p. 57. Political and civil code amendments. the parties require that such amendment be allowed without attaching such affidavit.] Discretion of Court as to allowing amendment to answer without requiring Jurisdiction of court as to allowing plea to be amended. Wynn v. Wynn, 109 § 6200 (5269). Who are competent to testify.-Where any suit is Claimant is a competent witness to transactions between himself and the de- Contents of lost writing. how authenticated. Ray v. Camp, 110 Ga, 819. Grantee in a deed competent to show what transpired between himself and de- A. 1898, p. ties of this State [ 57. 57. Heir at law suing for cancellation, grantee competent to testify to communications, etc., with deceased grantor. Boynton v. Reese, 112 Ga., 354 (3). Legatees under a will not incompetent to testify touching transactions had with the deceased, when. Austin v. Collier, 112 Ga.. 249. "Suit" defended by persons jointly interested. Neely v. Carter, 96 Ga., 197. § 6201 (5315). Commissioner in certain counties.-In all couneither party litigant in any court of record in any such county may, without any order or commission, take the deposition of any witness or witnesses in said case, whether resident in the county or not, upon giving the opposite party five days' notice A. 1898, p. of the time and place, with the names of the witnesses; [provided further, that commissioner before whom the evidence under this section is to be taken, shall have power, on notice being given to the opposite party or his attorney, or on subpoena duces tecum being served five days previous to the hearing, to require any witness or party to produce at the hearing, books, writings, and other documents. in his possession, power, custody, or control. That any witness or party refusing to produce, appear, or answer without legal excuse, shall be guilty of contempt, and upon certification of said act by the commissioner to the judge in whose court the case is pending, the judge shall punish the same as though committed before him]. § 6202 (5316). Depositions, by whom taken.-Such depositions to be taken before any commissioner appointed by the Judge of the Political and civil code amendments. 57. Superior Court of said county for the purpose of taking such depositions, and the appointment entered on the minutes [or in case of A. 1898, p. failure to appoint, or there is a vacancy in the office of commissioner, the Clerk of the Superior Court is hereby authorized as an ex officio commissioner to take such depositions. All witnesses to be examined in the county of their residence, and before the commissioner or ex officio commissioner of such county]. 58. § 6203 (5401). Fees of sheriff. For making out and executing titles to land, $3.50 [and the amount paid for United States internal a. 1898, p. revenue stamps required by law to be affixed to such deed. If presented by purchaser, $1.00, and the amount paid for United States internal revenue stamps required by law to be affixed to such deed]. Sheriff entitled to five dollars ($5.00) a day attendance fees for twenty days, if court sits that long. Floyd County v. Foster, 112 Ga., 132. Deputies also attending, have no such right. Floyd County v. Foster, 112 Ga., 133. 40 § 6204 (5462). Officer to make contracts. If the ordinary, sheriff, or other officer is unable to procure the advertisements at the rate herein prescribed, in [a] newspaper published in the county A. 1899, p. [at the county site of said county, then he is authorized to have said. advertisements published in any newspaper in this state having the largest general circulation in the county; provided, said rates are agreed upon; provided further, if contracts cannot be made with newspapers at the rates aforesaid, then the sheriff and ordinary, or other advertising officers, shall post their advertisements in the courthouse and in a public place in each militia district in the county for the length of time required by law for advertising in newspapers; provided, there is no newspaper published at the county site, then any paper published in the county shall be next entitled to the public advertisements. 57. § 6205 (5510) [9]. His duties.-To administer oaths and affi- A. 1900, p. davits in all cases, to take acknowledgments, and to attest deeds, inortgages, and other written instruments of like character. $6206 (5541). Exceptions pendente lite.-Exceptions tendered before the final judgment, for the mere purpose of being made a part of the record, shall be certified to be true by the judge, and ordered to be placed on the record. Such exceptions must be tendered during the term. [But, if the court shall adjourn within less than thirty A. 1898, p. days from the date of the ruling complained of, such bills of exceptions pendente lite, must be tendered within sixty days from the date of the order, decision or ruling complained of]. 6207 (5614). RULE 15.-Whenever a cost execution is paid by an attorney for a plaintiff in error, the same may, upon his request, be transferred and assigned to him by an appropriate indorsement thereon signed by the clerk. (As amended, February, 1900.) See 108 Ga., vi., and 102 Ga., 400.] Cost, payment of prerequisite to having case heard: exception. Segman v. “Pauper oath,” reckless making of, condemned. Walker v. Bryant, 112 Ga., 414. 59. |