
    Harrison et al., executors, vs. Powers, and vice versa.
    
    [These cases wore argued' at the last tertot, and the decision resorved.]
    1. If drafts were accepted and delivered on Sunday, they were void between the parties, but if they were falsely dated as of another day, and came into the hands of an- innocent holder, who took them for valúe without notice, and in the due course of trade, the acceptor was estopped from setting up that defence in a suit against him by such holder. But if the contract of purchase was ■on Sunday, then it was not in the due course of trade, and the holder would not be protected.
    
      (a1.) The acceptances sued on in this case were dated on Saturday, and the evidence in this record fails to show either that the holder was present at their execution, or that he knew they were executed on Sunday, or that they assigned to him and . that he became their owner on that day,
    
      (&,) The charge contained in the fourth ground of the motion for new “trial was literally correct, as far as it wei}t.
    (c.) The charge contained in the fifth ground of the motion, while substantially correct, would have been more accurate, after instructing the jury that, if the transfer of the papers sued on was not finally completed on the Sabbath day, but was afterwardaconsummated on another day, then it would, tor all purposes, be valid, and the plaintiff would be entitled to recover, if the court had omitted the latter clause of the charge, namely, “ unless some other good defence was established by the evidence, under the law, as the court will explain.’' In the connection in which it occurred, this charge Was not sufficiently explicit or guarded.
    2. The evidence in this record fails to show that the defendant paid the firm from whom he bought goods, or their assignees in bankruptcy, or the holder of the draft, for the goods purchasvd, and for which the acceptances sued on- were made.
    (o.) it appears that tfie assignees, under an order of the court, had a settlement with the holder of the draft for the effects traced to hie hands, including these papers; that in such settlement he was allowed to retain these papers, and upon accounting for other effects that had come into his hands, to which the assignees were entitled, he was discharged from all suits seeking to render him liable on account of his dealings with the bankrupts, it being provided that he might retain “any collaterals which he might have uncollected, until he collects his full unsettled balance ” due from the bankrupts to him, after satisfying claims that he proved against them in the bankrupt court. It was conceded that neither the holder nor the acceptor could settle with the assignees unless the other settled with them, and it was not denied that the acceptor was cognizant of all that transpired in relation to this settlement, and it does -not appear that he objected or set up any opposition to it until long after its const umatidn:
    
      Held, that when this arrangement was completed, the jurisdiction of the bankrupt court over the subject was at an end, and the parties, in relation to the paper, occupied the same position as they would have done had it never been administered or disposed of in that court.
    (6.) If the jury found that the holder was a bona fide holder of these acceptances, then this law -should have been given them in charge, as applicable to these particular issues, instead of the charge given, as excepted to in the tenth, eleventh and twelfth grounds of the motion for new trial.
    (c.) It is immaterial what was the motive of the defendant in making tibe arrangement for a settlement of the matters i-n bankruptcy, or what induced him to submit to the'judgmentthen rendered, unless he was misled by the fraudulent representations or practices of a party thereby benefited, or unless he was so situated as that, by the exercise of diligence, he could not have obtained accurate knowledge of the facts which, in its absence, influenced him to act.
    3. Testimony to the effect that the holder of the paper sued on was the uncle of one of the bankrupt firm from whom he obtained it, was admissible, as tending to show fraud in the dealings between the holder and the firm.
    4. The allowing of the re-introduction of a witness after both sides had closed their case, and after some argument and the intervention of a night, was a matter of discretion with which this court will not interfere, unless it is made manifest that the party objecting suffered serious detriment therefrom.
    (a.) The evidence rejected, as complained of in the ninth ground of the motion for a new trial, should have been admitted, both as tending to corroborate a witness for the plaintiff whose testimony had been attacked, and also as bearing upon the question on what day the holder became the owner of the 'acceptances.
    5. One who is a party to the record, when offered to testify in his own favor with respect to the contract or cause of action in issue or on trial, is incompetent, if the other party thereto is dead.
    6. The pursuit of one’s ordinary avocations on Sunday is an indictable offence, and a party is not bound to testify to such facts against himself; nor should he'be subjected to injury for availing himself of the privilege of refusing to answer questions which might have a tendency either to criminate him or subject him to penalty.
    
      (a.) The other depositions relating to bankruptcy were irrelevant to any issues made by the pleadings as they then stood, and if admissible under any circumstances, their rejection worked no injury, as the date of the dealings in bankruptcy was admitted.
    June 1, 1886.
    Contracts. Sunday. Charge of Court. Bankruptcy Evidence. Practice in Superior Court. Witness. Criminal Law. Constitutional Law. Before Judge Hammond. Fulton Superior Court. March Term, 1885.
    J. M. Ball brought suit, March 14th, 1876, against Henry R. Powers, in Fulton superior court, on two acceptances, each for $5,000, dated November 27th, 1875, drawn by West, Edwards & Co. on Henry R. Powers and accepted by him, payable sixty and ninety days after date, and endorsed by Shelton Edwards and West, Edwards & Co.
    J. M. Ball having died, Z. D. Harrison and E. P. Miller, his executors, were made parties plaintiff.
    
      Defendant filed the following pleas:
    1st. General issue. Filed September 16th, 1876.
    2nd. That the bill of exchange sued on was drawn by West, Edwards & Co. in the business or work of their ordinary calling, and not in pursuance of works of necessity or charity, on the Sabbath day, and that the bill was presented and accepted on the same Sabbath day that it was drawn, and that said bill of exchange was transferred by one of the partners of the said firm of West, Edwards & Co. to the said James M. Ball, in pursuance of the ordinary calling or business of the said West, Edwards & Co. on the same Sabbath that the said bill of exchange was executed, as above stated, and that said transfer was not a work of necessity or of charity. Defendant says that the bill of exchange and the transfer thereof to plaintiff are void. Filed November 29th, 1876.
    3rd. That the drafts sued on are the property of G. T. Dodd and J. C. Francis, as assignees of West, Edwards & Co., and that defendant paid off said notes to said Dodd and Francis on May 24th, 1876, or about that time. Filed May 15th,1878
    4th. That the two bills of exchange were drawn on Sunday, November 28,1875, in part payment for goods bought by defendant of West, Edwards & Company a short time before, and were by West, Edwards & Company trahsferred to plaintiff on the same Sunday in settlement of a debt due plaintiff by West, Edwards & Company; that a few days after they were accepted, West, Edwards & Company were, on their own petition, adjudged bankrupts, and G. T. Dodd and J. C. Francis were made their assignees ; that said assignees claimed that defendant owed them the value of said goods and filed a bill in Fulton superior court to compel defendant to turn over to a receiver of the court all goods purchased by him from West, Edwards & Company, and also to pay the receiver the proceeds of all such goods as had been sold, and a receiver was appointed for said purpose, who seized all'of said goods remaining unsold, but defendant refused to pay over to said receiver the proceeds of the goods sold, and a rule nisi issued against defendant to show cause why he should not be attached; that defendant employed able counsel to defend him, etc.; that on a preliminary hearing his answer was adjudged insufficient, and a verbal order given to attach him for contempt 5 that he procured further time, on giving bond in the sum of $10,000 for his appearance, to make further answer, but on informing his counsel of the facts above stated in regard to said bills of exchange, he was advised they were void and it was his duty to settle the claims of said assignees. Plaintiff, Ball, told ■ defendant that he, Ball, had made a settlement with the assignees and defendant would have to settle with them. Defendant thereupon made a full and complete settlement with them, paying them about $11,000 in cash and goods for the same goods for which the bills of exchange sued on Were given.
    That Ball Was an uncle of Edwards, one of said firm of West, Edwards & Company, and the managing partner of the financial affairs of the firm, and was on intimate terms with said Edwards; that said firm, on November 28, 1875, being insolvent and within two months of their bankruptcy, with a view to give a preference to said Ball over their other creditors, transferred the said bills of exchange to said Ball, and that at said time said Ball had reasonable cause to believe that said firm was insolvent, and knew said transfer to him was in fraud of .the provisions of section 5128 of the United States Revised Statutes, and that said bills rightly belonged to said assignees of West, Edwards & Company and not to Ball. Filed May 13,1878.
    Defendant, on April 1st, 1885, amended his plea, numbered 4 above, and stated that about March 24th, 1876, plaintiff compromised and settled certain matters of dispute mentioned in said original plea between plaintiff and the assignees, of which settlement defendant was notified by plaintiff' on or about April 1st, 1876, and defendant was then directed by Ball to pay the amounts of money sued for in this case to said assignees, which he did accordingly.
    It' was agreed that A. J. West, of W., E. & Co., was discharged in bankruptcy July 16,1879; that the other members of the firm had never been discharged, and that the assignees of the firm were discharged July 23,1881.
    On demurrer, part of plea numbered 4 above, from allegation of Ball’s relationship to Edwards down to the end of the plea., was stricken. To this ruling of the court, defendant- excepted, and assigned error thereon.
    The evidence offered on the issues madte was, in biief, as follows :
    Plaintiff introduced the acceptances sued on and closed.
    Defehdaiit introduced the following evidence:
    
      A J. West:—Was a member of the firm of West, Edwards & Co., which was in the wholesale grocery business. Ball was a special partner of West & Edwards up to January 1st, 1875. He was uncle to Edwards. In 1875, he kept his office in our store adjoining our office.
    Do not know whether the bills sued on bear the proper date. I first saw them November 28th, 1875. Shelton Edwards had them. It was Sunday morning, in the office of W., E. & Co., and myself, Edwards, Ball and two or three others were present. I was sitting at the desk writing a letter, and my attention was called by Mr. Edwards saying to me that he wanted to settle with Mr. Ball by transferring Mr. Powers’s notes and others to Ball instead of ours, and Mr. Ball said he preferred to receive them from my hands, and I handed them to him, Ball, taking a memorandum of the papers, and I asked him if that made us “ even,” and he said it did. I gave him Powers’s notes and others and took up notes that he held against the firm. Those notes he gave to me. I was sitting at the desk and took up a pen and was about cancelling them, when Edwards said, “ No; don’t do that,” and I took them and placed them in a drawer of the desk. These notes were placed in a drawer of this desk, and when the firm went into bankruptcy, it was carried to Judge Lochrane’s office up stairs; this drawer slipped out and these notes fell out, and that is the last I saw of them. That was after the bankruptcy. I knew this was a full and final settlement with Colonel Ball, because I took a memorandum and knew the amounts, and it “was understood and accepted as full and final. Had no other transaction with Ball from that time until the bankruptcy. Edwards left that day for Savannah at half-past one o’clock. He returned on the following Tuesday. Do not know who he brought back with him. I heard Colonel Ball say he had settled with the assignees. He told me so. I do not know as (hese notes were mentioned. He met me; there was an effort being made to settle all these matters, and he told me that he had settled with the assignees, and he supposed they could bring Mr. Powers to a settlement.
    That was some time in February or March, 1876, after the assignees were appointed. Do not know how long after. Think it was after the failure of the effort to get a composition in bankruptcy. Don’t remember how long after. It was in the spring, not far, I think, from the 1st of April. Powers was not present. The notes were not mentioned, but Ball said he had settled the Powers matter with the assignees.
    I was examined by interrogatories in this case before, on November 1 Oth, 1877. Said nothing about this then. No question was asked about it by the counsel, and I'did not volunteer any information.
    
      E. P. Ilowell:—I do not know where the answer to the bill filed by the assignees against Henry R. Powers is. It is not in my possession.
    Don’t remember that, in the settlement the assignees made with Powers, Ball was settled with as between himself and Powers. Ball was no party to it. That is my recollection. I was Powers’s attorney. Cannot remember that Ball 'had any attorney there to settle anything. So far as I know, he was not settled with at that time. There was a settlement made in which all parties settled, which failed. It was not approved by the court, and it failed. Rowers and myself discussed whether or not those notes could be got rid of on account of being a Sunday transaction, at the time of the last settlement between Ball and Powers and the assignees. It was known that these notes were outstanding and lad to be defended. Don’t remember Edwards being at the settlement between Powers and the assignees and his being in possession of any bills of exchange of Henry Powers. They had so many settlements, I don’t remember what took place. Edwards was with us sometimes, but I don’t remember any one time.
    I can’t state the contents of Powers’s answer to the bill. It denied all the charges of fraud made in the bill and set forth that the goods were transferred in the course of trade in good faith. It was sworn to. It denied all the allegations in the bill. Powers’s settlement with the assignees had nothing to do with the answer. The answer denied that he got as much as was charged by the bill. It set up that these notes were in the possession of Ball. The court made an order in the case; whether verbal or written, I do not remember. The order was on the bill. There was another order, but I don’t remember what it was. It is my impression that under that order he was to turn tho goods over to the receiver, or the money. Q. “Was it done ?” A. “We settled it.”
    In his answer, Powers set up that these notes were received in good faith by him and transferred to innocent parties who had no notice.
    Powers gave some other notes in liquidation of his indebtedness to W., E. & Co. that were transferred to the Citizens’ Bank and elsewhere. Powers was ordered to turn over the goods, etc., or in default to go to jail. He didn’t take the case to the Supreme Court. He concluded it was best to settle rather than go to jail.
    
      P. L. Mynatt:—As attorney in this matter, I had a sub ■ foena duces tecum served on Judge Hopkins to bring into court a paper which was reported to me to be a settlement. In answer, he appeared in court, and had the paper, which he declined to produce, saying it was left in his hands by Edwards, his client. Judge Clark required him to produce it in court, and it was introduced for Powers on the trial of this case. It was a settlement between Francis and Dodd and Colonel Ball, and it was written by Judge McOay, who was Ball’s counsel. I was representing the assignees, and they had a claim against Ball and one against Powers, and were trying to make a settlement, but I did not see it until it was brought into court under this subpeena. • I was absent at the time of the settlement. As I remember, it was a settlement, either wholly or in part, between Ball and the assignees. I cannot say it included these notes, but my recollection is, it gave the assignees the right to collect them. The paper produced by Judge Hopkins was not copied in the record when this case went to the Supreme Court. I discovered this, I think, in the argument there.
    
      A. J. West, recalled:—The indebtedness by West, Edwards & Co. to Ball, for which these notes of Powers were given, was $28,500.00. I never saw the notes of Powers any more after they were given Ball.
    Our firm had owed Ball $28,000.00 from eight to twelve months. The other $500.00 was gotten, I think, some time in the fall. We didn’t pay all the . debt with this $10,-000.00 of Powers’s acceptances; we gave others. We may have given another acceptance of Powers for $4,500.00.
    I did not hear the conversation between Ball and Edwards at the time of the transfer of these notes sued on. Edwards came to me and said he wanted to settle with Col. Ball; that he was going to Savannah, and preferred to settle that day, and said, here are the Powers notes and others, amounting to our indebtedness and interest, and he said that he was going to give them to Col. Ball; and Ball said he preferred to receive them from my hands, and I handed them to him. There was no reason given for this preference. This was Sunday morning about ten o’clock, Knew Edwards’s character. Would not believe him on' his oath. Ai the time of the transfer of these notes to Col. Bull,lie was engaged in loaning money and shaving notes' and taking collaterals. He dealt in negotiable papers.
    
      Reulen Arnold, F. A. Arnold and O. T Dodd swore that, from some knowledge of the character of Edwards) they would not believe him on his oath.'
    
      Depositions of Ball, dated September 30, 1876 :—I am plaintiff in this case. Of Powers’s bills or notes I have the two sued on. Witness declined to answer further.
    The bill of G. T. Dodd and J. C. Francis, assignees of West, Edwards & Co. vs. Powers, was introduced by defendant. It alleges that in the latter part of November, 1875, West' Edwards & Co. fraudulently conveyed to Powers a large quantity of goods, bill of particulars attached. Powers admitted, in the presence of witnesses, to complainants that 'he took many of the goods from the store of West, Edwards & Co. without invoice, etc. Goods were staple goods, easily convertible into cash'.' He has as much as $12,000.00 in money of the proceeds. This allegation is made on the faith of statements of defendant to complainants and others, that he had this much and was ready to pay it to complainants, or to the holders of the notes he gave for the purchase money, according as he found that in making payments to one he would not have to pay it to the other; that the notes given for the goods are now held by innocent purchasers. Asserts title to the goods. Prays for injunction and receiver, etc. Bill of particulars was attached for goods amounting to $24,-706.23.
    • This bill was filed in office March—,1876. Service,, March 21, 1876.
    On the bill is an order dated March 18, 1876, by Judge Underwood appointing Hubbard temporary receiver, and ordering that he be put in possession, and that defendant deliver goods, etc., to him, etc.
    
      A petition of assignees for attachment against Powers in Fulton superior court was introduced, alleging the appointment of Hubbard; that demand was made on Powers for the money and goods in his hands, as ordered by the court, and that Powers refused to turn over the money or any part of it, making vague and unsatisfactory responses, etc. Therefore, attachment for contempt was prayed. Sworn to March 21, 1876. On this an order was taken, requiring Powers to show cause, on March 24, 1876, why he should not be held in contempt, etc.
    Schedules in bankruptcy of West, Edwards & Co., filed in office December 9,1875, were introduced, and also the adjudication in bankruptcy of West, Edwards & Company, December 9,1875.
    Deed of assignment in bankruptcy of W., E. & Co. to Green T. Dodd and J. C. Francis, assignees, dated February 21,1876, was introduced.
    Settlement made with Powers by the assignees: That the bill of the assignees against Powers is to be dismissed; that defendant gives up all claim of title to the goods in the hands of the receiver, and pays the assignees sixty-five hundred dollars in cash and costs of suit, defendant to have a receipt in full of complainants’ claims against him. Dated May 4, 1876.
    Also a receipt to Powers by the assignees for sixty-five hundred dollars and a conveyance of the goods, in accordance with above agreement.
    Order as to paper in hands of Jno. L. Hopkins, Esq., reciting that Judge Hopkins had been served with subpoena, and had brought into court a paper placed in his possession by his client, Shelton Edwards, signed by J. C. Francis, G. T. Dodd, and James M. Ball, by H. K. McCay, and dated March 24, 1876, and declined to produce said paper on account of the manner in which it was placed in his possession. It required that the paper be delivered to defendant, to be .used as evidence, and after being, so used, that it be returned to said Hopkins.
    
      
      Jesse Carroll, sworn for plaintiffs:
    Was book-keeper for W., E. & Co. in October, 1875. I don’t remember whether I was present at their store on Sunday, November 28,1875. Ho not remember any paper of Powers being offered to Ball as a payment, collateral security, or anything of that sort. W., E. & Co. owed Ball at that time $28,500.00. He discounted their paper and they left col-laterals with him justas with a bank. When their paper became due, C olonel Ball let them have it, and they would collect it. When they took up paper, the understanding was they were to have more collaterals.
    
      Shelton Edwards, by interrogatories, for plaintiffs:
    The firm of West, Edwards & Co. was composed of A. J. West, Shelton Edwards and Benj. W. Briscoe. Henry R. Powers accepted the papers sued on for groceries sold, and they were assigned to Ball as collateral security for borrowed money. This assignment was consummated Monday, December 6,1875. There was a proposition to transfer before its actual consummation, and on Sunday, November 28, 1875. Ball did not acquire title when negotiations began. He did afterwards, on December 6., 1875. When the negotiations for this transfer began, A. J. West, Jesse Carroll, J. M. Ball and myself were present. It was in the public office of West, Edwards & Co. The amount due by us to Ball was $28,500, for which he held collaterals given him from time to time, as each loan was made to West, Edwards & Co. Said collaterals had been entrusted, at my request, to W., E. & Co.’s receipt, to be returned, or substituted by other collaterals. Said collaterals were received from Ball during the latter part of the months of October and November, 1875. On Sunday, November 28th, 1875, the drafts and notes of Powers for $5,000 each, for sixty and ninety days, and others, were tendered by A. J. West to J. M. Ball in payment of the borrowed money. After talking over the matter, Ball was undecided about receiving the same, and requested a delay of a few days to determine the matter, as he was more inclined to take them as collateral security, substituted for the others then in our hands, and I granted the time requested. During this conference, Mr. West was occupying a desk at some distance from us engaged in writing, and suddenly appeared at the desk where myself and Ball were talking, and where all the papers referred to were lying, and at that time took up his pen and made a move to cancel the notes of Wést, E. & Oo. for the borrowed money, $28,500. Observing the same, I called him to stop, and told him that Ball had asked the privilege of delaying this matter for a few days. I then took all the notes and collaterals, including Powers’s for $10,000, and enclosed them in an envelope, and marked Ball’s name on it, and placed it in a private drawer in a desk in the office of W,, E. &. Co. After a few days, I took the package and handed it to Ball, with the understanding that the drafts of Powers and others should be received by him as collateral security substituted in the place of the collaterals withdrawn. This delivery was made Monday, December 6th, 1875, W., E. & Oo. having faMed on Saturday, December 4. No part of this borrowed money had been paid up to that time. I did tell Powers' that Ball had settled with the assignees, and he made a fair and honorable settlement with them, and the same can be substantiated by the honorable judge of your present court, Mr. George Hillyer, John L. Hopkins and Judge McCay ; and after they had made this settlement, the assignees falsified their words and refused to have the same confirmed.
    
      Green T. Dodd, sworn for plaintiffs:
    Am one of the assignees of West, Edwards & Co. Francis, my associate, has been dead about six months.. I had charge of all the books of the firm. I sold them to a' paper man for about four dollars. Have' not heard of them since. I think • I signed the papers seeking permission of the bankrupt court to settle with Powers and with Ball (ex: hibited to him). The settlements were not carried out. Judge Erskine refused to let us make them. My recollection is, without making a settlement with Powers, we could not settle with Ball, and without settling with Ball, we could not settle with Powers. I signed the affidavit to the bill against Powers, in Fulton superior court. Think the other signature is that of Francis. The bill of particulars attached came from the books of the concern. The statement in the bill that Powers admitted having $12,000.00 in money from the proceeds of the goods, etc., is, I think, the truth, to the best of my recollection. He didn’t want to pay the bills twice. Whatever he paid us he wanted to be relieved from paying Ball.
    We had a claim against Ball for a large amount; perhaps $25,000 or $30,000, that he was indebted to W., E- & Co. by reason of his taking their goods and notes and collaterals, and insisted on its payment. We were insisting on payment from Ball at the same time that we were insisting on payment from Powers. I think we sued Ball in the city court in two suits. We were negotiating for a settlement with both at the same time. I think there was a settlement signed up with Ball at one time, after this last case with Hubbard. My recollection is that Ball was allowed to prove some $2,000 or $5,000; and he came in and got credit for it. Judge Hopkins represented him in some way, and I think in that settlement is where he was allowed to come in and prove his claim. I can’t say exactly whether this was after we got the $10,000 from Powers. We took the goods Hubbard held and sold them, and got altogether, in cash and goods, some $10,000 or $11,000 from Powers.
    ■ ' Powers never asked me for that money to be paid over to'him, or insisted that we had his money. I remember the application for attachment for contempt against Powersj and getting'the order to show cause: It was served oh him. Q. •“ Was it hot under that order that you settled with Powers ? ” A. “ Well, I think that is about the way, sir. I think that is what brought it about.” . Powers did not pay xis the $12,000 and the goods' besides. Our estimate was'that we got $3,500 or $4,000 in goods. The books showing thé sales went with the other books. I can’t state' what the order of J udge Underwood was under Avhich Powers was about to go to jail, whether it was for him to produce all his books, and whether he declined. I can’t tell whether he made the settlement the day he was called on to make the showing or not.
    The settlement with Ball I testified to as being made had reference, I believe, to the rolling-mill store. I think that AÁras the one in regard to which he was to be allowed to prove his claim. Whether we had another with Ball with reference to the Powers matter, I can’t say.
    Question by Col. Mynatt: “That is not the one that Judge McOay drew up and was signed by you and Ball and delivered to Judge Hopkins to be kept? ” A. “ No, sir. It may be a copy. Whatever we settled, we had to have it approved by J udge Erskine or Black, and that, I think, was the rolling-mill store matter.”
    
      8. B. Hoyt, sworn for plaintiff:
    Ball deposited with the bank, of which I was president, the acceptances sued on, for collection. About the time they fell due, Powers came to the bank and said he thought he would decline to pay them; that there was a dispute as to their ownership between Ball and the assignees j that he had been advised by some attorney not to pay them, as he might have to do so twice. The notes were turned over to Báll. Don’t think I would believe Edwards on his oath.
    Petition of assignees in bankruptcy for leave to settle Avith Ball, introduce^ by plaintiffs; Setting out that, as assignees, they had a claim against Ball for certain assets of the bankrupts, alleged to have illegally gone into his hands, partly in form of collaterals to secure a loan by Ball of $28,500.00, made long prior to the bankruptcy, and partly coming to him through one Thompson, who bought out West, Edwards & Co, just before their bankruptcy, etc. They claim the right to recover from Ball, which Ball denies. Think they can effect a compromise with Ball on the following terms: That he surrender collateral 'in his hands, amounting to about $21,000.00, petitioners to proceed to collect it, retaining first $5,000.00, paying Ball next $5,000.00 on his debt, remainder to go to assignees. This to be a final settlement of all matters in controversy between assignees aiid Ball. Signed by the assignees.
    Referred by Judge Erskine to the register for report and recommendation, March 28,1875. No report thereon.
    Petition of assignees in bankruptcy for leave to settle with Powers was introduced by plaintiffs:—Alleges a claim against Powers for a large quantity of goods bought by him from the bankrupts shortly before their failure. Have sued him on it, and seized about $2,500.00 or $3,000.00 worth of goods, and are now seeking to have him turn over other goods and funds, etc. Believe they could get not far from $12,000.00 more. Powers disputes their claim, and there is likely to be a long litigation. Ask leave to settle on the following terms: Powers pays $6,000.00 in cash, and gives two promissory notes for $3,000.00 each, one at two and the other at four months, endorsed by W. Powers, W. E. Powers and Y. R. Tommey, turns over the goods seized and in the hands of a receiver, and pays costs. Assignees to dismiss their bill against Powers and to give him a written indemnity against notes held by Ball and others, and Powers to be given a release from liability for the goods, etc. Dated March 25th, 1876.
    Sent to Judge Erskine at Savannah, April 13th, 1876.
    Judge Erskine returned it without approval, questioning it being to the interest of the estate to give Powers the indemnity, etc., April 15th, 1876.
    Application of assignees to bankrupt court for compromise of litigation with Middleton, Howell et dl., was introduced by plaintiffs ¡—Alleges pendency of bill against these parties in United States court for goods claimed by assignees to belong to bankrupt estate, etc. That claim is disputed, etc. They ask leave to make a settlement, in brief, as follows : The bill to be dismissed or entered settled. Trover cases of various parties against É. B. Edwards et al. for the property sought in the bill to be subjected as property of the bankrupt’s estate, to be dismissed. The case of J. G. Middleton vs. Dodd & Francis and John N. Dunn to be dismissed and all right of action or claim of any sort in favor of Middleton, J. M. Ball, E. B. Edwards, Albert Ilowell et al. vs. Dunn, individually, or as receiver, and against Dodd and Francis, individually and as assignees, are to be settled with Ball; that Ball may prove against Ed wards his notes endorsed by Edwards for $3,500.00, and may prove, of his other claims against the firm, $5,000.00; that the- proceeding filed in United States court against Ball et al., seeking to prevent the disposition of certain' property, until the assignee could be appointed, and other relief, as well as -the bill against Howell and Ball et al., be dismissed, as above provided; Ball to prove no more of his claim against the bankrupts than $5,000.00, retaining any collaterals he may have uncollected, until he collects his full unsettled balance, relinquishing his claim against Dodd and Francis on their attachment, bond, etc., as well as any other right of action against them, as assignees, etc. Filed in office May 5th, 1881, and- approved by Judge Erskine- May 7th, 1881; . ■ '
    The.records of two suits in city court of Atlanta by the assignees against James M. Ball were introduced by plaintiffs :—One for twenty-six thousand dollars for flour, filed May 6th, 1876; one for $4,267.55 for usurious interest, filed May 16th,. 1876. Both dismissed, on defendant’s motion, December term, 1877.
    Receipts for collaterals-given to James M. Ball,-and West, Edwards & Oo., produced-from custody of executors of James -M. Ball, were introduced' by plaintiffs :—One dated October. 16th and 26th, 1875, the- other November'20th, 1875, covering large amounts -in-notes of various parties, amounting^to $50,727.34..
    
      The jury found the following verdict* “We, the jury, find for the defendant on the pleas of settlement and payment. April 1st, 1S75.”
    Plaintiffs moved for a new trial on thafollowing grounds:
    (1), (2), (3.) Verdict contrary to law and evidence, and without evidence to support it.
    (4.) Verdict contrary to following charge: “The.holder of commercial paper of the character of those sued on in this case is presumed to be such for value, and to have received it before due, and the maker or acceptor is not allowed to dispute his title to it, except in case it becomes necessary to do so in order to let in some defence; so that if you believe from the evidence that these drafts were transferred to Ball by West, Edwards .& Co. on the Sabbath day, that, of itself, would not defeat Ball’s right tp recover on them, or the right of his executor, in whose name the case is now proceeding, to recover in this case.’’
    (5.) Because the court erred in that portion of his charge to the jury which immediately lollows the portion just recited, and is as follows : “ If they were not transferred
    on the Sabbath day, or if the transfer was not finally completed on that day, and was afterwards completed on another day, not the Sabbath, then it would be a valid transfer for all purposes, and the plaintiff would be entitled to recover, unless some other good defence is. established by the evidence under the law, as the court will exr plain to you.”—Said charge being erroneous, in that, immediately following the charge set out in the 4th ground, it serves to contradict and qualify and does contradict and qualify said charge, which said charge is a correct statement of law.
    (6.) Because the court erred in admitting the testimony of A. J. West, to the effect that J. M. Ball was-the uncle of Shelton Edwards, over- plaintiff’s objection, on the ground that it was .immaterial and irrelevant to the issues made. • ■ •
    (7.) Ground not certified.
    
      
      (8.) Because the court erred in permitting West to be re-introduced to show the ordinary calling of Jas. M. Ball, after both sides had closed their case, after considerable argument and the intervention of a night.—Plaintiff’s counsel objected, and it was not stated by defendant’s counsel that failure to introduce such testimony sooner was the result of accident or oversight or forgetfulness, but because ho had considered it immaterial.
    (9.) Because the court erred in ruling out, when offered by plaintiffs’ counsel, the following questions and answers from depositions of A. J. West:
    Q. u When Edwards went to Savannah, what did he go for ?” A. “ He said he was going to Savannah to sell flour, and he said, if we could settle with Ball, it would convince him that we were all right, and that maybe he would help us to raise some money in Savannah, where interest was cheaper than here. That is what he told me,” etc.
    (10.) Because the court erred in the following charge: “ If you belieye from the evidence that the plaintiff, Ball, told the defendant, Powers, or had communicated to him through another person, that he had settled with the assignees of W., E. & Co., and had transferred the papers sued on in this case to them, and that he, Powers, would now have to settle with the assignees; and if he did thereupon settle with the assignees and paid them in money or goods, or both, an amount equal in value to the amount then due on these acceptances, and that he did this on the faith of this statement of Ball’s to him, then Ball could not recover against him in this action, and you would find for the defendant on that plea; and this would be true, whether Ball had in point of fact made such a settlement with the assignees or not.”—Said charge being erroneous; (1.) Because there is no evidence on which to base it. (2.) Because it fails to present the view urged by plaintiffs that there was other indebtedness sought to be collected by said assignees from said Powers, largely in excess of the amount due on the acceptances in question, either partially or wholly, to make the settlement with the assignees, put in evidence by him. (3.) Because said charge should have been qualified, so as to state that the defendant would not be entirely relieved unless he paid an amount equal in value to said acceptances, entirely on the faith of the statement of Ball to him. (4.) Because this charge is contrary to law, in that defendant could only set up by way of defense, based on said alleged statement and settlement, such damage as he had sustained by reason of such statement. (5.) Because said charge is otherwise illegal.
    (11.) Because the court erred in the following charge: “ But if Ball did not make such a statement to him, or if he did, if Powers was not thereby induced to make the settlement with the assignees, but was influenced entirely by other considerations, then, if such settlement had not in point of fact been made between Ball and the assignees, Ball would not thereby be deprived of his right to recover on the acceptances sued on.”—Said charge being erroneous because: (1.) Even if Powers was not entirely influenced by other considerations to make the alleged settlement, yet the effect of such other considerations might be to, at least partially, reduce the amount plaintiff would be entitled to recover: the true rule being that only to the extent defendant was damaged by the alleged statement of Ball could such statement be available as a defence. (2.) In that such charge is otherwise illegal.
    (12.) Because the court erred in the following charge: “ If Ball did make such a statement, but was mistaken about it, or it was not in point of fact true, and Powers, on the faith of it, as already explained, paid money or goods, or both, to the assignees, of less value than the amount then due to these acceptances, then you could only find for the plaintiff the difference between the amount then due on the acceptances, and the money and goods paid to the assignees in the settlement.”—Said charge being erroneous because: (1.) To have the effect stated, the alleged payment must have been made entirely on the faith of the 'alleged statement, and not influenced partly or wholly by other considerations, the true rule of law being as stated in ground 11th above. (2.) There was no evidence on which to' base said charge. (3.) In that said charge is otherwise- illegal.
    The motion was overruled, and plaintiffs excepted.
    Defendant filed a cross-bill of exceptions (having previously filed exceptions pendente lite), assigning the following errors:
    (1.) Error is assigned by defendant on the action of the court in striking out the part of the plea mentioned before.
    (2.) In ruling out depositions of James M. Ball set out in full in his cross-bill of exceptions. [The testimony of Ball was taken before a commissioner. He refused to answer nearly all the questions put to him, on the ground that they would criminate him. The court refused to permit this to be shown to the jury, and ruled out all such questions and refusals to' answer.]
    ■ (3.) In rejecting Powers -as a witness. [It is stated in the exceptions pendente lite that defendant was offered “ as a witness to prove that the notes sued on were made on Sunday; also to prove the contents of a paper deposited with Judge Hopkins, and since lost. The court refused all this evidence, and refused to let Henry Powers, the defendant, testify at all as to anything in the case.”]
    (4.) In charging that the effect of the transfer on the Sabbath could only be to allow defendant to set up other defences he might have to the action, etc.
    • This is the second verdict for the defendant. The case was formerly before the Supreme Court, and is reported in 62 Gen, 751.
    
    H. 0. Peeples ; N: J. Hammond, for plaintiffs in error,
    cited: On thequestion of transieron Sunday; 30 Mo., 387; Edwards on Bills and Notes, §175, note 5 ; 57 Ga:, 180; 44 Id., 543 ;■ this case 62 Id., 762; Ill U. S., 597; 14 Mich., 290; 72 Ill., 21; 1 Dan. Neg. Ins., §69; 29 Ga., 528; Code, §§2785, 2787, 2789; 48 Ga., 192; 37 Id.,,66 ; 4 Id.,' 287 ; 22 Id., 246. •
    On error in allowing re-introduction of West: 64 Ga.. 253, 347, 720 ; 29 Id., 528, 529. '
    On question of measure of damages, if defendant was deceived by Ball’s statement, to his injury: Code, §2571; 5 Ga., 472; 14 Id., 316 ; Code, §§2634, 3173, 3174, 2957, 2958; 20 Ga., 517; 11 Id., 402; 32 Id.,.173 ; 44 Id., 237; 25 Id., 244; 23 Id'., 354.
    On errors alleged in cross- bill:
    Acceptor cannot set up bankruptcy. 1 Parson’s on Notes and Bills, p. 321; 1 Dan. Neg. Ins., §§535, 536; Bump on Bank’cy, (10 ed.), p. 840; 37 Ind., p. 1.
    Right in assignee barred and party, holding adversely not affected by bankruptcy: Bump on Bank’cy (10 ed.), pp. 227, 558, et seq., and authorities cited; 115 U. S., 528, 348.
    On exclusion of Ball’s depositions: code, §§3854, sub-sec. 3, 3870, 3814, 3102 ; 19 Ga., 464 ; 40 Id., 688; 7 Id., 367 ; 1 Gr. Ev., §451, pp. 548 and 9 and notes; Ibid., secs.. 452,453,460.
    On exclusion of Powers’s testimony: Code, §3854 and authorities cited; 71 Ga., 168.
    P. L. Mynatt; John D. Cunningham, for defendant,
    cited: Transfer on Sunday a nullity: 62 Ga., 757; 41 Id., 449; 57 Id., 179 ; 59 Id., 683 ; 1 Pars, on Bills, 213 and notes.
    On 6th ground: admission of immaterial or irrelevant evidence not ground for new trial: 51 Ga., 279. 59 Id., 722, cited and distinguished.
    Relation of witness to parties: 6 Ga., 324, 349.
    Authority to pay to the assignees, if they had settled with Ball: Code, §2684 ; 53 Ga., 618; 60 Id., 90.
    On re-opening testimony: 30 Ga., 121; 29 Id.,450, 453 ; 27 Id., 382, 96, 100; 44 Id., 645; 69 Id., 636.
    On bankruptcy and settlement with assignees : 26 Ga,< 555, 559; 33 Id., 459 • 52 Id., 129 ; 60 Id., 623; 55 Id., 403 ; 50 Id., 109.
    On ruling out Ball’s depositions: Code, §§3894, 3900, 3810, 3813, 1 Whar Ev., §§533, 546,1166 ; 104 Mass., 234.
    Interrogatories -may be taken at any time pending suit: Code, §§3333, 3877, 3479, 3900; 40 Go,., 493.
    Powers was a competent witness; 45 Ga., 511; 58 Id., 479, 483.
   Hall, Justice.

The questions upon which this case must turn relate to the validity of Ball’s title to the papers sued on, and to the defendant’s satisfaction of the same by making payment thereof either to Ball or to the assignees in bankruptcy of West, Edwards & Co., from whom the goods were purchased, for which the papers were given by defendant, as it was alleged, on the eve of the bankruptcy of Wesf, Edwards & Co.

It is contended that the acceptances in question were not only had on Sunday, but were transferred to Ball on that day. The papers show from their date that they were made on a working-day, to-wit, on Saturday. There is undoubtedly testimony to the effect that there was a conversation between West, Edwards & Co. and Ball on Sunday as to the transfer of these papers. The evidence fails to show either that Ball was present at their execution, or that he knew they were executed on Sunday, or that they were assigned to him, and that he became their.owner on that day. Defendant’s own witness, A. J. West, while he shows that there were some negotiations in reference to the matter on Sunday, does.not leave it at all doubtful that the. transfer was not.consummated on that day, but thqit its comnletion was postponed to another and a later day. The law governing this question was settled, when this case was formerly before this court, and is conclusive as to any question which may now be presented on that particular subject. 62 Ga., 757. It was then held that, if the paper was accepted and delivered on Sunday, it was void between the parties, but if it was falsely dated as of another day and came to the hands of an innocent holder, who took it for value, without notice, in the due course of trade, the acceptor was estopped from setting up that defence in a suit against him by such holder. It was further held that, if Ball’s contract of purchase whs on Sunday, then it was notin the due course of trade, and he would not be protected. The evidence fails to show, as we think, the -two facts which render this defence to the suit available. As before remarked, the drafts and acceptances do not show on their face that they were made on Sunday, but on a different day, nor does it appear that Ball had any notice that they were falsely dated, or that he became the holder of them in virtue of any contract that was consummated on Sunday.

The 4th ground of the motion for a new trial sets forth a portion of the charge given on this subject, and as far as that goes, it> is literally correct and in strict accordance with what was ruled when the case was here before.

The charge contained in the 5th ground of the motion, and to which the plaintiffs except, while substantially correct, would have been more accurate if, after instructing the jury that if the transfer of the papers sued on was not finally completed on the Sabbath day, but was after-wards consummated on another day, then it would, for all purposes, be valid, and the plaintiff would be entitled to recover, had the latter clause thereof been omitted, namely, “ unless some other good defence is established by the evidence, under the law, as the court will explain.” Coming, as it did, immediately after the instructions embodied in the 4th ground of the motion, We do not think it sufficiently explicit or guarded in its terfns. The jury might have been led to infer that there was another defence in the case which would justify them in finding against, fhe Inna fide holder of paper transferred in the fair and usual course of trade for value, and without notice of any infirmity or illegality in its consideration; that such an application of the charge was outside of the intention of the court we are well aware, but we cannot be satisfied that the jury were equally well apprised of that fact. Reference to cases cited on the brief of counsel will establish the principle Fere announced, and need not be repeated in this opinion.

On the other main question made by the record, we are of opinion that the defendant utterly failed to show that he either paid West, Edwards & Co., or their assignees in bankruptcy, or Ball, for the goods purchased, and for which the acceptances sued on were made. On the contrary, the evidence shows that the acceptor has not settled for such goods, but that he still owes for a large balance of the same, an amount probably enough to cover the entire indebtedness of which they are the evidence. It is clear that he purchased goods from West, Edwards & Go., and that those purchases amounted, in the aggregate, to some $24,000.00; that he paid neither West, Edwards & Co. nor Ball any part of that sum, and that, by an arrangement with the assignees in bankruptcy, he turned over to them of that amount some twelve thousand dollars in goods and money. It also appears that the assignees, under the order of court, had a settlement with Ball for the effects traced into his hands, including these papers; that in that settlement Ball was allowed to retain these papers, and, upon accounting for other effects that had come into his hands to which the assignees were entitled, he was discharged from all suits seeking to render him liable on account of his dealings with the bankrupts. In that settlement, it was further provided that Ball might retain “ any collaterals he may have uncollected, until he collects his full unsettled balance ” due from the bankrupts to him, after satisfying claims that he proved against them in the bankrupt court, and that these papers sued on were among the collaterals then in his hands, and a suit, was tl en pend* ing against the acceptor in favor of Ball for their collection. It was a conceded point that Ball could not settle with the assignees unless Powers, the acceptor, also settled with-them, nor could he make the settlement unless Ball likewise settled with them. It is not denied that he was cognizant of all that'transpired in relation to this settlement between the assignees and Ball, and it does not appear that he ever objected or set up any opposition to it until long after it was consummated, or that he ever claimed the right to retain possession of the balance of the goods, or the proceeds arising therefrom in his hands, without accounting to Ball for them until some time after this whole controversy was wound up, and the rights of the parties to it finally adjusted and established. When this arrangement was completed, the jurisdiction of the bankrupt court over the subject was at an end, and the parties in relation to the paper occupied the same' position as they would have done had it never been administered or disposed of in that court. Sargent et al. vs. Helton et al., and Traer et al. vs. Clews, recently decided by the Supreme Court of the United States, 115 U. S. Rep., pp. 848 and 528.

If the jury found that Ball was a bona fide holder of these acceptances, then this law should-have been given them in charge as applicable to these particular issues, instead of the charge given, which is set forth and excepted to in the 10th, 11th and 12th grounds of the plaintiffs’ motion for a new trial. It is perfectly immaterial what was the motive of the defendant for making this arrangement for a settlement of the bankruptcy matters with, that court, or what induced him to submit to the judgment, then rendered, unless he was misled by the fraudulent representations or practices of a party thereby benefited, or’ unless he was so situated that by the exercise of diligence-he. could not have obtained accurate knowledge of the facts which, in its absence, influenced him to act.

Testimony to the effect that Ball was the uncle of Shelton Edwards may have been competent to show fraud in the dealings between Ball and the firm of which he was a member, so far as that fraud, if any was alleged and' set up- and existed, affected the rights of defendant in the dealings between himself, Ball and that firm. Relationship is, undter such circumstances, a badge of fraud; but under the pleadings, it is extremely doubtful, to say the least, whether any issue was presented to which such testimony was pertinent. That dou'bt may have rendered it competent, and the plaintiffs take nothing by the 6th ground of the motion for new trial.

So of the 8th ground of the m-otton for a new trial. The admission of the witness, re-introduced, after both sides had closed their case, and after some argument and the intervention of a night, was a matter within the discretion of the court, which we cannot undertake to control, unless it was manifestly shown that the party objecting suffered seriousd'etriment therefrom. "• .

In view of the serious attack that had been made upon the character and credibilify of the witness, Edwards, and of the further fact that the plaintiffs denied that Ball ,-liad been settled with and received a transfer of the paper on Sunday, we think the evidence ruled.out by the court, and which ruling is complained of in the 9th ground of the motion for new trial, that Edwards went to Savannah on' that day for the purpose of making arrangements to settle with Ball the indebtedness of West, Edwards & Company to him, and to enable that firm to procure assistance from him, by which they could carry on their business, should have been admitted, not only because it had a tendency to corroborate Edwards’s testimony, but also had a bearing upon One of the main questions in the case, to-wit, as to the day on- which Ball became th^ owner of the acceptances.. •’

' This disposes of the plaintiffs’ bill of exceptions, and leads to the conclusion that they should have had a new trial, not only because of the above errors in the charges and rulings of the court, but because of the want of evidence to support the finding, at least as to the two main grounds of the defence.

This brings us to the defendant’s bills of exception pendente lite and cross-bill, in which the only errors alleged', not already anticipated and ruled upon in what has been said on the plaintiffs’ bill of exceptions, are, first, in ruling out certain depositions bf Jas. M. Ball, which were offered with a view to show that he had refused to answer interrogatories propounded to obtain information as to his actions on Sunday in reference to the papers sued on, and other questions in relation to the bankruptcy of West, Edwards & Company, and his dealings with them immediately preceding it. Secondly, the exclusion of Powers’s testimony, on the ground that Ball, the other party to the transactions inquired about, was then dead.

We think there was no error in refusing to permit Powers to testify. Questions raised by this assignment are well settled by the repeated rulings of this court, all of Which were fully reviewed in Flournoy & Epping vs. Wooten, ex'r, 71 Ga. Rep., 168. With the conclusion reached in that case we are fully satisfied.

The pursuit of one’s ordinary avocations on Sunday is an indictable offense, as was held when this case was here before, and we know of no rüle that will subject a party to injury for availing himself of the privilege of refusing to answer questions which may have a tendency to either criminate or subject him to penalties. A party is Hot bound to accuse himself either directly or indirectly. This principle is as old as Magna Uharta and is embodied in all our constitutions, both state and federal. Of what worth would the protection be if a party availing himself of it incurred detriment or loss by so doing. See authorities cited on brief of counsel for plaintiffs in error, as well as those cited by the defendant in error, and in addition Higdon et al. vs. Heard, 14 Ga., 255, 258 ; Gravett vs. State, 74 Id., 191.

The other depositions relating to bankruptcy were irrelevant to any issues made by the pleadings as they stood; and although the evidence might have been competent in a case where the date of the dealings with bankrupts was material, yet there was no question in this case as to that date. That fact was admitted. The rejection of the evidence, even if admissible under any -circumstances, worked no hurt to the defendant. There is nothing in these bills of exception to require or authorize a reversal of the j udgment rendered on them.

On the plaintiffs’ bill of exceptions we order the judgment reversed.  