
    Lemon vs. Hornsby.
    Where it is sought to make one liable by reason oí the acceptance of a draft by his agent, he is not rendered incompetent to testify to the ■want of authority in the agent to make such acceptance on account of the death of the drawer, the accepting agent and payee being both in life.
    Witness. Before Judge Buchanan. .Campbell Superior Court. February Term, 1879..
    Reported in the decision.
    
      Geo. Latham, for plaintiff in error..
    H. M. Reid, for defendant.
   Warner, Chief Justice.

This ease came before the court below on a certiorari from a justice court, on the hearing of which the court dismissed the certiorari and affirmed the judgment of the-justice, which was for the defendant. Whereupon the-plaintiff excepted.

It appears from the record that Lemon,.the plaintiff, sued the defendant, Hornsby, on the following instrument r. “Griffin, Ga., February 16,1874. Capt. F. S. Fitch, Dear Sir — I owe Judge Lemon, and as you owe me fifty dollars on account of Mr. Hornsby, you will- please cash Judge-Lemon for that amount, and I will receipt you in full for Hornsby.” Signed “L. T. Doyal.” The following was written upon the foregoing instrument: “February 17, 1874. I will see Dr. Hornsby about this matter, and will see that it is paid by next fall, or sooner, if possible.” Signed' “F. S. Fitch.” Hornsby was offered as a witness, who-testified that Fitch had no authority from him to accept the order so as to bind him for its payment. Llornsby’s evidence was objected to on the ground that Doyal was-dead. The justice overruled the objection. The plaintiff, Lemon, was in life, and so was Fitch, the alleged agent of Hornsby, and both could have confronted him as witnesses as to the question of Fitch’s agency in signing the order.. There was no error in dismissing the certiorari and affirming the judgment of the justice, in view of the evidence-contained in the record.

Let the judgment of the court below be affirmed.  