X. Hirt, plaintiff in error, vs. John L. Linton, defendant in error

X. Hirt, plaintiff in error, vs. John L. Linton, defendant in error. 1. Without cause shown for the delay, a traverse of the truth of the ■ magistrate’s return to a certiorari, though filed before the case is reached, is too late if filed after the first term, the Code requiring it to be filed at the first term and before the hearing, and also that it be tried at that term, unless good cause be shown for a continuance. Code, §4066. For some analogy, see 16 Ga., 139; 10 Lb., 551. The case in 40 Lb., 36, is not contra. 2, Where there was a written contract between landlord and tenant, a subsequent parol contract on a special matter, touching which the writing was silent, may be proved without producing the writing. 1 Kelly, 12; Code, §3806. 3. Demurrer in justice’s court, where the account sued on consisted of several items, though overruled by the justice as a whole, may, in the superior court, on certiorari, be sustained as to some of the items, and overruled as to others. Where the bill of exceptions says the demurrer was sustained in the latter court, and no order sustaining it is in the record, and where the final judgment contained in the record shows inferentially that the demurrer must have been sustained as to part of the account only, though silent on that direct question, the supreme court will consider the general statement in the bill of exceptions as qualified by that judgment. 4. Where the return to certiorari shows that the whole account was proved, the superior court, adjudicating on the certiorari, may correct the judgment below by sustaining a demurrer as to some of the items and giving final judgment for the balance, thus making use of the question of law involved in the demurrer (which was wholly overruled by the justice.) to dispose finally of the case without send- • ing it back for a new hearing. Code, §4067. 5. In the present case, there was no error committed by the superior court against the plaintiff in certiorari. Whether the court erred in •his favor by sustaining the demurrer as to a part of the account, and reducing the judgment rendered by the justice, is not in question. [MAJORITY — Bleckley, Judge.] Bleckley, Judge.