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the language is "legal and natural," it would apt to endanger life and safety than to place appear to the writer that probably the word in control of a passenger street car the comsmaterial" originally found its way into the bination of a dangerous character, a conduesection by inadvertence or misprint, and that tor loaded with whisky, and a pistol loaded the same expression, "legal and natural," with powder and ball. In Christian V, Cowas intended to be used. This, however, is lumbus & Rome Ry. Co., 79 Ga. 400, 7 S. E. merely conjectural. In Atchison, T. & S. F. 216, it was held that if a railroad company Rp. Co. F. Parry, 67 Kan. 515, 73 Pac. 105, it employed an agent and assigned him to duwas held that "negligence, to be the proxi ty with knowledge that he was insane, or of mate cause of an injury, must be such that a his being subject to sudden fits of insanity, it person of ordinary caution and prudence would not be excused from responsibility for would bare foreseen that some injury would a homicide committed by him while engaged likely result therefrom, not that the specific in its business. See, also, Central Ry. Co. v. Injury would result." This is quoted approv Hall, 124 Ga. 322, 52 S. E. 679, 4 L. R. A. Ingly in Western & Atlantic R. CO. V. Bryant, (N. S.) 898, 110 Am. St. Rep. 170; Kerlin v. 123 Ga. 77-83, 51 $. E. 20, 23. In Mayor & Chicago R. Co. (C. C.) 50 Fed. 185; Williams Council of Macon y. Dykes, 103 Ga. 817, 818, v. Missouri Pacific Ry, Co., 109 Mo. 475, 18 31 S. E. 443, it was said that "the rule is S. W. 1098. If the company negligently asthat, in order to recover for an injury alleged signed the conductor to take charge of the to have resulted from the negligence of an car, and, while acting in the general scope of other, the injury must be the natural and the business entrusted to him, he wrongfully probable consequence of the negligence; or, shot at a passenger, and as a proximate conas otherwise stated, the wrong and resulting sequence thereof a person passing on the damage must be known, by common experi highway was killed, the company would be ence, to be naturally and usually in sequence. liable. The damage, according to the usual course of It is urged that the decision in Belding v. events, must follow from the wrong. The Johnson, 86 Ga. 177, 12 S. E, 304, 11 L. R. A. principle in this state seems to be substantial 53, is controlling as to liability not resulting ly the same." In 1 Shearman & Redfield on from the placing of the drunken conductor Negligence (5th Ed.) $ 29, it is said: “The in charge of the car. In that case it was alpractical solution of this question appears to leged that a saloon keeper sold and continued us to be that a person guilty of negligence to furnish liquor to a person who was drunk, should be held responsible for all the conse knowing that such person, when under the quences which a prudent and experienced influence of liquor, was dangerous. The perman, fully acquainted with all the circum. so furnished shot and killed another stances which in fact existed (whether they while thus drunk. On demurrer it was held could have been ascertained by reasonable that the homicide was not the proximate rediligence or not), would, at the time of the sult of the sale of the liquor. This differs negligent act, have thought reasonably possi materially from the present case. A mere ble to follow, if they had occurred to his sale of liquor to a drunken customer is not at mind." In Insurance Co. v. Boon, 95 U. S. all the same as knowingly to place a drunken 117, 130, 24 L. Ed. 395, it is said: “The employé, armed with a pistol, in charge of a proximate cause is the efficient cause, the one car, with the duty of controlling it, dealing that necessarily sets the other causes in op with passengers and conducting a part of its eration. The causes that are merely inci business. In Brazil v. Peterson, 44 Min. dental or instruments of a superior or con 212, 46 N. W. 331, where a barkeeper assaulttrolling agency are not the proximate causes ed a person wlio was in the saloon in an inand the responsible ones, though they may be
toxicated and helpless condition, the court Dearer in time to the result. It is only when held that the proprietor of the saloon was the causes are independent of each other that liable. the nearest is, of course, to be charged with What facts may be developed by the the disaster," See, also, Southern Ry. Co. v. dence we cannot, of course, foresee, but the Webb, 116 Ga. 152, 42 S. E. 395, 59 L. R. A. court properly overruled the demurrer and 109; Thompson on Negligence, $ 59; St. retained the case for submission to the jury Louis Ry. Co. v. McKinsey, 78 Tex. 298, 14 $. on the evidence. W. 645, 22 Am. St. Rep. 54.
Judgment affirmed. All the Justices con. 3. It requires no argument to show that it cur. was negligent to knowingly place a drunken conductor armed with a pistol and of bad habits in charge of a passenger car, traversing the streets of a city, or at least that it
ANDERSON v. HALL. should be left to the jury to determine wheth (Supreme Court of Georgia. June 14, 1907.) er this was not negligent. As matter of law, 1. INJUNCTION-VIOLATION-CONTEMPT. on demurrer, we cannot say that this was Where the defendant in an injunction pronot an act of negligence. It was contended ceeding is informed by the attorney for the that the homicide was not the natural and
plaintiff that a temporary restraising order has
been issued against him, and is also shown a probable result of such act on the part of copy of the order, which information clearly the company. But we know nothing more and plainly indicates what is the act from whic!
he must abstain. he is bound to obey the order sonal injuries. Judgment for plaintir, and of the court, whether he is served with the writ defendant brings error. Affirmed. or not; and a refusal or failure to comply with the order, under such circumstances, is as much W. D. Kiddos, for plaintiff in error. Hoke a contempt as if the defendant had been per
Smith and Smith, Berner, Smith & Hastings, sonally served by the sheriff with the writ.
for defendant in error. Murphey v. Harker, 41 S. E. 585, 115 Ga. 77.
\Ed. Note.--For cases in point, see Cent. Dig. vol. 27, Injunction, $ 446.)
ATKINSON, J. In addition to what is 2. SAME-NOTICE OF INJUNCTION.
stated in the headnotes, we do not deem it The evidence was sufficient to authorize the necessary to make any statement with ref. court below to find and hold that the defendant had been notified of the contents of the restrain
erence to the case, further than a brief ref. ing order by the attorney for the plaintiff, and
erence to the amount of the verdict. There actually read a copy thereof which was exhibited was testimony from which the jury could to him by said attorney, and that, after being have found that the plaintiff was 38 years thus notified, the defendant violated the terms of the order; and the judgment holding the de
of age, of robust bealth, and of active busifendant in coatempt for said violation should be ness habits. For five years immediately preallowed to stand.
ceding the injury he had earned an average (Syllabus by the Court.)
of from $1,200 to $1,700 per annum. He was Error from Superior Court, Wilcox Coun
riding on the train of the defendant as a ty; J. H. Martin, Judge.
passenger, and was approaching the station Action by Emma Hall against G. H. Ander
to which he was destined. The station was son. Judgment for plaintiff. Defendant
a flag station, at which trains stopped for a brings error. Affirmed.
very short time, and it was customary for
passengers intending to leave the train at Haygood & Cutts, for plaintiff in error.
that station to leave their seats while the C. C. Curry and D. B. Nicholson, for defend
cars were still in motion and go to the platant in error.
form, so as to alight immediately upon the
stopping of the train. On this occasion the BECK, J. Judgment affirmed. All the
train was running 35 or 40 miles an hour, Justices concur.
but, upon approaching the station, commenced to slack speed, as usually done preparatory to stopping, whereupon the defend
ant left his seat and proceeded to the platCENTRAL OF GEORGIA RY. CO. v. FORE
form in order to leave the train. Upon HAND.
reaching the door, he perceived that the car (Supreme Court of Georgia. June 15, 1907.)
was passing his station, and thereupon turn1. CARRIERS-CARRIAGE OF PASSENGERS--AC ed to call to the conductor or other servants TIONS FOR INJURIES-QUESTION FOR JURY.
operating the train, 'at which time the train, Whether the act of a passenger on a railroad train in leaving his seat and going to the
without stopping, gave a sudden jerk fordoor or upon the platform of the coach, while the ward and threw him out of the door onto the train is in motion, and before it comes to a platform, thence to the ground, dragging him full stop, is such negligence as would defeat
a short distance, bruising his head and face, a recovery for an injury resulting from the negligence of the company in operating its train,
and finally running over his leg above the is a question for the jury to determine from all ankle. Amputations were necessary and were the facts and circumstances of the particular | performed at two different times. The case under consideration; and, in the determination of this question, the jury are authorized
wound did not heal for eight months. He to take into coasideration the age and physical
was unconscious for several days after the condition of the passenger, the speed of the injury, and suffered great pain. He was untrain, the reason of the passenger for leaving his seat and going to the door or upon the plat
able to do any kind of work up to the time form, the purpose to be accomplished, and all
of the trial, and his earning capacity was other attendant facts and circumstances as dis permanently impaired. The jury returned a closed by the evidence. Augusta Southern R. verdict in his favor for $15,000. The evi. Co. v. Snider, 44 S. E. 1005, 118 Ga. 146, and cases cited; Cotchett V. Savannah Ry. Co.,
dence being such as to authorize the jury 11 S. E. 553, 84 Ga. 687. See, also, Parris v. in finding all of the foregoing to be true, we A., K. & N. Ry, Co. (decided May 20, 1907) 57 cannot say that the verdict for $15,000 in S. E. 692.
favor of the plaintiff was excessive. (Ed. Note.--For cases in point, see Cent. Dig. vol. 9, Carriers, $S 1375-1378, 1383.]
Judgment affirmed. All the Justices con
cur. 2. DAMAGES--EXCESSIVE.
The petition set forth a cause of action, the evidence authorized the verdict, the amount found as damages was not excessive, and no sufficient reason appears for reversing the judge
VICKERS V. HAWKINS. ment. (Syllabus by the Court.)
(Supreme Court of Georgia. Aug. 8, 1907.)
1. INFANTS-ACTIONS_WRIT OF EBBOB-BILL Error from Superior Court, Macon Coun OF EXCEPTIONS--SERVICE. ty; Z. A. Littlejohn, Judge.
Where a minor sues by prochein ami, and Action by S. R. Forehand against the Cen
prevails at the trial, the prochein ami is the tral of Georgia Railway Company for per
proper person upon whom the hill of exceptions sued out by the defendant should be served.
2. TAXATION--COLLECTION-TAX EXECUTIONVALIDITY - MISSPELLING OF OFFICIAL'S NAME.
The misspelling of an official's name to a process does not invalidate it, if it is made to appear that the official authorized another to sign it in his presence, or actually adopted the signature and acted upon it. 3. SAXE,
The addition of the letters "T. C.” to the signature to a tax execution sufficiently indicates the official who issued it did so in his capacity as tax collector. 4 SAVE.
A tax fi. fa. in the following words: "Georgia. Worth County. To the Sheriff of Worth County, to Execute and Return, to Advertise and Sell According to Law:
You are bereby commanded that on upreturned wild land number 211, in the 14th district of Worth county, you cause to be made the sum of $3.26, it being the amount of state and county taxes for the year 1888, and the further sum of 50 cents for the costs of this fi, fa. and make due return thereof to me according to law, Herein fail not. Given under my hand and seal, this 20th day of Dec., 1888. (Signed} W, J. Stoy, T. C.” --recites the necessary jurisdictional facts required by the statute. 5. SAME.
Under the law in force in the year 1888, a tas execution against upreturned wild land was properly issued by the tax collector. 6. SAME.
The levy of an execution should be signed by the levying officer. If another sign the levy. ing officer's name, the levying officer may adopt the signature as his own. Where the undisputed eridence is that the levying officer caused the property to be advertised for sale pursuant to the levy, personally cried it at the sale, executed & deed to the purchaser, and made an entry of the sale on the fi. fa., it is sufficient to authorize an inference that the levying officer adopted the signature as his own. 7. EvidENCE--DOCUMENTARY EVIDENCE-PRELIMINARY PROOF-DETERMINATION.
The Civil Code of 18995, 3628, relating to a fling of an affidavit of forgery to a deed, and having a special issue made up and tried as to the genuineness of a deed attacked for forgery, is inapplicable to a fi. fa. and entry of levy thereon offered in connection with a sheriff's deed, which is also attacked for forgery. 8. TRIAL-INSTRUCTIONS-PROVINCE OF COURT AND JUBY.
A reguest to charge that "the law presumes that an officer does his duty, and an entry made on an official document, purporting to be an entry by the officer whose duty it is to make it, is presumed to be the act of such officer, and such presumption is not overcome except by the strongest proof," was properly refused.
The vice of the request is an intimation of opinion as to the quantum of proof necessary to overcome & rebuttable presumption.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, $8 439-466.] (Syllabus by the Court.)
Perry, J. H. Tipton, and Hall & Hall, for de fendant in error.
EVANS, J. The action was complaint for land, and bas been twice tried, On a review of the first trial the verdict was set aside and the case remanded to the superior court. See 111 Ga. 119, 36 S. E. 463. On the second trial the plaintiff introduced a grant from the state, and mesne conveyances from the state's grantee to herself, The defendant proffered in evidence a tax fi. fa. and the sheriff's deed to one Dison (under whom he claimed title), whereupon the plaintiff filed an affidavit of forgery, averring that the sheriff's deed, the tax fi. fa., and the entry of levy on the fi. fa. were forgeries. Upon the preliminary proof submitted by the defendant, the court allowed in evidence the sheriff's deed and the tax fi. fa. over the plaintiff's objection. The plaintiff excepted pendente lite to the admission of the deed and fi. fa. The court ruled that the filing of the affidavit of forgery devolved upon the defendant the burden of proving the genuineness of the tax fi, fa. and levy, and to show that any alteration appearing in the entry of levy was made prior to the sheriff's sale, and instructed the jury to this effect. No separate issue of forgery was made, but the issues of the genuineness of the tax f. fa. and entry of levy were submitted along with the other issues in the case. The de fendant also introduced a deed to hiinself from the purchaser at the tax sale, and proof that he had been in possession of the land since that time, and had made thereon permanent and substantial improvements. The jury returned a verdict for the plaintiti, the court refused a new trial, and the defendant excepted. The plaintiff sued out a cross-bill of exceptions, assigning error on her pendente lite exceptions.
1. On the call of the case in this court the defendant in error moved to dismiss the bill of exceptions because the only service thereof was an acknowledgment of service by the next friend, Herbert Hawkins; that he is only a formal party, and that A. H. Hawkins is the real party in the case, and service should have been made upon her. The purpose of having a guardian ad litem, or next friend, to represent a minor, is to furnish a person sui juris to carry on the litigation for the minor's benefit. Service of notice or other process pertaining to the case prosecuted by a prochein ami should be made upon him. He represents the minor in the particular litigation, and, if service cannot be had upon him, his connection with the case would be without practical value. We therefore hold that the next friend was the proper person upon whom to serve the bill of exceptions, and the motion to dismiss is denied.
2. As between the litigants according to the proof made at the trial, the ownership of the land in controversy depends upon the validity of the tax sale. We will therefore
Error from Superior Court, orth County; W. N. Spence, Judge.
Action by Herbert Hawkins, by next friend, against E. L. Vickers. Judgment for plaintiff, and defendant brings error. Plaintif sued out a cross-bill. Judgment on the main bill reversed and on the cross-bill af. firmed.
Fulwood & Murray, J. J. Forehand, and 2. D. Harrison, for plaintiff in error.
first examine the objections to the admissibility of the tax fi, fa. upon which error is assigned in the cross-bill of exceptions. The tax fi, fa. was as follows: “Georgia, Worth County. To the Sheriff of Worth County to Execute and Return, to Advertise and Sell According to Law: You are hereby commanded that of unreturned wild land number 211, in the 14th district of Worth County, you cause to be made the sum of $3.26, it being the amount of state and county tax for the year 18SS, and the further sum of 50 Cents for the costs of this fi. fa. and make due return thereof to me according to law. Herein fail not. Given under my hand and seal, this the 20th day of Dec. 1SSS. [Signed] W. J. Stoy, T. C. [L. S.]” Indorsed upon the fi. fa. was the following entry of levy: “I have this day levied the within fi. fa. upon lot of land number 211 in the 14th district of said county, for state and county tax for the year 1888. January 30th, 1889. [Signed] S. M. Cox, Sheriff.” The plaintiff objected to the tax fi, fa, and entry of levy indorsed thereon being received in evidence because the tax fi, fa. was signed, “W. J. Stoy, T. C.,” when it was admitted in open court by the defendant that the tax collector in the year 1888 was W. J. Story; that the letters “T. C.” following the name of W. J. Stoy did not show that the execution was issued by the tax collector of the county, Objection was further made to the introduction of the fi. fa., on the ground that one of the defendant's witnesses had already testified that the execution was not signed and issued by the tax collector of Worth county, but was signed by witness at the request of the tax collector, plaintiff contending that the tax collector could not delegate any verbai authority to sign the execution, witness not testifying that he had been appointed to collect taxes in Worth county in 1888. It appeared that the tax collector was dead at the time of the trial. While the testimony did not directly establish that the tax collector's name was signed by the witness in the tax collector's presence, it does appear that it was done at the special instance and request of the tax collector at his house, and under such circumstances as might afford an inference that it was done in his presence. It is the duty of the tax collector to sign a tax execution. It is not essential, however, that he should actually do the manual act of signing his name in every instance. In Hitchcock v. Latham, 97 Ga. 253, 22 S. E. 907, objection was made to the introduction in evidence of an execution on the ground that the name thereto purporting to be that of the tax collector “was in printing as it came from the printing office,” and that, therefore, the execution did not bear the genuine signature of the tax collector, and there was nothing to show when, how, or where the name of the tax collector had been affixed to the execution. But this court held that the objection was not good where it affirma
tively appeared that the fl. fa. came into the sheriff's hands, who had acted upon it as a legal execution, and in so doing had levied upon, advertised, and sold land; that, in the absence of further proof on the subject, it will be presumed that the printed signature was authorized by the tax collector; and that he issued the execution as his official act. It appeared from the record in this case that the sheriff had acted upon this fl. fa., advertised the land levied on to satisfy it, and sold the land thereunder, and made a deed to the purchaser at the sale. As a general rule, when the law declares that a process shall be signed by a particular official, his name cannot be affixed to it by another, not in his presence, under a previous general authority. Biggers v. Winkles, 124 Ga. 990, 53 S. E. 397. However, we are not in opposition to this general proposition when we hold that the facts of this case bring it within the principle of the Hitchcock Case, supra. The misspelling of the tax collector's name of itself furnished no ground to hold the fl. fa. illegal. It is clear that if the tax collector, signing his name, had inadvertently omitted a letter, and the proof showed that he actually signed it, the signature would be valid. 3...Nor was the objection good that the letters “T. C.” following his signature were insufficient to show that he had signed the execution in his official character. Under the law existing at that time, such a fi. fa. must have been issued by the tax collector, and it is to be presumed that the abbreviation “T. C.” represents the officer's official character. 4, 5. The fi, fa. was further objected to, because it did not show on its face the necessary jurisdictional allegations that the taxes for the year 1888 were due and unpaid; that it did not show that the lot of land in question had not been returned and had been double taxed, as required by law; and that the tax collector had no authority under the law to issue a tax execution against unreturned wild land, but that at that time such authority was in the tax receiver. We think the necessary jurisdictional facts appear on the face of the fi, fa. It is not to be presumed that the tax collector will issue a fl. fa. for taxes that have been paid. The fi, fa. recited that it was for state and county taxes for the year 1888, and that the land had not been returned for taxes; and it issued for an amount alleged to be due against this particular land, which it is to be presumed was the proper amount. The tax collector, by virtue of the act of December 13, 1882 (Acts 1SS2, p. 47), in force at the time of the issuance of this execution, had authority to issue the fi. fa. for unpaid taxes due upon unreturned wild land. 6. Objection was also made to the entry of levy appearing on the fi. fa. Prior to tendering the deed and fi. fa. in evidence, one of the witnesses for the defendant had testi
fied that the entry of levy on the i. fa., al sheriff's deed. This section provides that "a though purporting to have been made and registered deed shall be admitted in any court signed by S. M. Cox, sheriff, was not signed in this State without further proof, unless de S. M. Cox, but by another person; that the maker of the deed, or one of his beirs, or for that reason it did not appear to be an the opposite party in the cause, will file an official entry, because it had been shown that affidavit that the said deed is a forgery, to it was not made by the sheriff of the county, the best of his knowledge and belief, when or by any one authorized by the sheriff. The the court shall arrest the cause and require testimony disclosed that the sheriff was dead an issue to be made and tried as to the genuwhen the case was tried, and that one w Ineness of the alleged deed.” Its provisions J. Ford wrote the entry of levy and signed are applicable only to registered deeds. Hill the sheriff's name to it. Ford did not hold v. Nisbet, 58 Ga, 586; Sibley v. Haslam, 75 any office. There also appeared the follow Ga. 490; Holland v. Carter, 79 Ga, 139, 3 $. ing entry upon the fi. fa.: "The within lot E. 690; Bentley y, McCall, 119 Ga. 530, 46 s. of land number 211 in the 14th district, sold E. 645; Chatman v. Hodnett, 127 Ga. 360, 56 this day to J. A. Dixon, for one hundred S. E. 439. It bas been held that the proceedand fifteen dollars, this 7th day of May, 1889. ing is purely statutory, and is to be strictly (Signed) 8. M. Cox, Sheriff.” There was construed, and will not be extended to a will. testimony that this entry of sale was in the Smith v. Stone, 127 Ga. 485, 56 S. E. 640. It handwriting of Cox, the sheriff. The statute is limited to the one issue of genuineness of declares that the officer making the levy the deed, and there is no authority of law shall enter the same on the process by virtue for drawing into the trial of that issue quesof which the levy is made. Civ. Code 1895, tions foreign to the factum of the execution 5421. In order that the entry of levy may of the deed, Roberts v. Roberts, 101 Ga. 768, be authenticated as the official act of the 29 S. E. 271. The provisions of the Code secofficer, it should be signed. Jones v. Easley, tion providing for a separate issue upon the 53 Ga. 454. An entry of levy may be made affidavit of forgery cannot be extended to the and the levying officer's name signed thereto genuineness of the execution or entry of levy by a scrivener, if done in the immediate thereon, It is true that a sheriff's deed, even presence and by the direction of the levying though registered, is not admissible as a muofficer. In such a case, notwithstanding the
niment of title without the fi, fa. under which officer's name may be signed by the scrivener, the sale was made accompanies it, or its loss it will be upheld as the entry of the officer, is shown. But the law does not require that Ellis v. Francis, 9 Ga. 325; Cox y. Montford, the fi, fa, shall be recorded along with the 66 Ga. 62; Weaver v. Wood, 103 Ga. 89, 29 deed before it will be admissible in evidence. S. E. 594. There is no evidence in the rec The Civil Code of 1895, § 3625, permits the ord authorizing a conclusion that the entry record of the fi. fa. in connection with the of levy, and the signing of the sheriff's name deed, and provides that when this is done, thereto by Ford took place in the immediate and the fi, fa. is lost, a certified copy of the presence of the sheriff. The undisputed evi record of the fi. fa. is admissible in evidence. dence, however, discloses that the sheriff ad An attack on be fi. fa. or entry of levy, be Fertised the land by virtue of this particular
cause it was not signed by the proper offilevy, personally cried the same at the sale,
cials and is therefore yoid, is directed against and made an entry of the sale on the fi. fa.
the authority of the officer to make the sale. There was also evidence by one of the sub
It is not a direct attack on the deed. The scribing witnesses to the deed that be saw
burden is upon him who is asserting that the the sheriff sign the deed, and that he and official signature is not genuine to show that the other witness attested it as witnesses.
fact. The ruling of the trial court, that the This evidence authorizes an inference that
Civil Code of 1895, § 3628, was applicable to the sheriff adopted, as his own act, the entry
the tax fi. fa, and the entry of levy, and that of levy made by Ford, and acted on it, caused the burden was on the defendant to show the property to be advertised, sold it, and their genuineness, and to explain any alteramade a deed to the purchaser. Even if the
tion that might appear in the levy, impropentry of levy was not made in the immediate erly cast a burden upon the defendant which presence of the sheriff, he immediately rati
the law does not place upon him, This error fied it, and adopted it as his own act, when necessitates a new trial, inasmuch as we are he advertised the property and sold it by unable to say that the jury were not influFirtue of this particular levy. The adoption
enced by this instruction in deciding the is by the sheriff of the entry, relatively to a
sues of fact respecting the validity of the difbidder at the sale, made it the sheriff's own ferent official entries. act and deed just as effectually as if Ford
8. The defendant complains, in his motion had signed it in his presence, or the sheriff for a new trial, that the court erred in refushimself had signed the entry.
ing to charge, though requested in writing so 7. Several of the grounds of the motion for
to do, that “the law presumes that an officer new trial complain that the court erroneously
does his duty, and an entry made on an offiextended the Civil Code of 1895, § 3628, to
cial document purporting to be an entry by embrace a fi. fa, and entry of levy thereon, the officer whose duty it is to make it is prewhen tendered in evidence along with the sumed to be the act of such oflicer, and such