Volume 100 — Georgia Reports

<p>Intervention. Before Judge Lumpkin. Eulton supeirior court. March, term, 1896.</p> <p>Under an equitable petition-of creditors against the Georgia Mining, Manufacturing & Investment Company, a receiver was appointed for the property of that corporation, consisting, among other things, of leases of the property of the Georgia Iron & Goal Company and the Bartow Iron & Manganese Company, which leases required the lessee to pay all taxes. The two companies last named own large bodies of realty in Bartow county; and the tax-collector of that county, on December 20, 1891, issued executions for their State and county tax -of that year. For 1895 the receiver gave in said realty for taxation, and execution issued, December 20, 1895, against the company first named, for its State and county taxes on the property. On May 25, 1896, the tax-collector of Bartow county brought his petition, alleging that the receiver fails, neglects and refuses to pay the amount due on said executions or ,any part thereof; and praying, that as tax-collector he be allowed to intervene, that the receiver be ordered to pay him the amounts due on the executions within thirty days, and on failure so to do, that leave be granted to have the property levied on and sold by the .sheriff of Bartow county to satisfy the executions.</p> <p>The receiver answered: He has not paid the taxes, because he has not had the money with which to pay them .and to keep the works upon the estate committed to him in ■operation. The court ought not to order him to pay the .amounts within thirty days, because he has not the money to do so, and no means of obtaining it except from the incomes arising from the conduct of the operations of the properties committed to him, all of which is necessary to conduct said operations. He does not believe it would be to the interest of the estate to have the properties levied on and sold by the sheriff; if this were done the properties would be dismembered, and the creditors thereby injured. He believes the best interest of the estate committed to him is, that at the proper time one decree be had, ordering the sale of all the properties and payment of the demands against them in accordance with their legal priorities.</p> <p>The prayer of the tax-collector was denied, and he excepted.</p>

<p>Exceptions to master’s report. Before Judge Sweat. Wayne superior court. May term, 1896.</p>

<p>Although the defendant in an action of hail-trover, which the-plaintiff voluntarily dismisses, is ordinarily entitled to a judgment against the latter and his sureties upon a bond given by. him under section 4606 of the Civil Code for the purpose of obtaining possession of the property, yet, where such an action was dismissed because of a mutual mistake of law upon the part of counsel for both parties as to its effect, and upon an implied, if not an express understanding that the only effect, of the dismissal would be a mere failure by the plaintiff to recover in his action, and during the same term the plaintiff,, in resistance to a motion of the defendant to enter a judgment, upon the bond, made a motion to reinstate the bail-trover action for the purpose of having the same tried upon its merits,, it was error to deny the lattdr motion.</p> <p>Atkinson, J., dissenting. — Where a bail-trover proceeding was voluntarily dismissed by the plaintiff for the reason that counsel did not believe that its further prosecution would be fruitful, it. affords no ground for its subsequent reinstatement, even during-•the term at which it was dismissed, that the plaintiff’s.counsel afterwards discovered that, ás a matter of law, the plaintiff and his sureties were liable over to the defendant upon the bail-bond because of the failure of the action. If, in order to relieve' against the consequences of such dismissal, the plaintiff’s counsel desired to invoke the exercise of an equitable discretion of the court upon the ground that the conduct of the defendant’s, counsel had misled him, and that he was induced to the dismissal because of some agreement or understanding between the defendant’s counsel and himself, he cannot complain of the refusal of the court to interfere in his behalf, where he does-not plainly and distinctly set out the alleged agreements or-understandings of the opposite counsel, or that such statements, if any, were made with the design of misleading him,, nor allege distinctly how and in what manner he was misled..</p>

Petition for injunction, etc. Before Judge Callaway. Richmond county. Septehnber 7, 1896. 'George N. and Joseph. Held: and so from time to time to change ■ the investments whenever and as often as he deems it advis- • able. -Should the office of toe trustee at any time become. vacant by toe death, resignation, and removal of any trustee from toe State Or from any -other cause, any trustee-being permitted hereby to- resign at any time- be so- desires,…

<p>Equitable petition. Before Judge Callaway. Dooly superior* court. September term, 1895.</p>

<p>1. The defendant in a county court judgment on wMcli money is claimed upon a rule pending in the superior court cannot in that proceeding attack the judgment for want of service upon, him in the suit from which it resulted. The question whether or not one of the creditors contesting for the fund in court could, upon appropriate proceedings to which the officer making the return was a party, attack such a judgment on the ground stated, is not made in the present case.</p> <p>2. That an attorney at law who represented two judgment, creditors applied to the junior judgment money arising from a judicial sale of property subject to both, did not pro tanto satisfy the senior judgment so as to postpone its lien upon the proceeds of other property subject thereto in favor of still another judgment having a lien upon the property last mentioned and junior to both of the judgments first mentioned.</p>

<p>1. The production of a paper belonging to a wife, and which is in the custody either of herself or her attorney, cannot he compelled for -the purpose of using the same as evidence for the State in the trial of a criminal case against her husband by serving a subpoena duces tecum, or other process, 'either upon the wife or the attorney, or upon both. Under such circumstances, the paper in question is so far inaccessible as that secondary evidence of its contents is admissible.</p> <p>.2. On a trial for the offense of being a common cheat and swindler, alleged to have been committed by making false and fraudulent representations concerning the wealth and commercial respectability of the accused, and thus obtaining the goods of the prosecutor, it is competent for the State to prove that the accused, at or about the same time, made similar representations to another for the purpose of fraudulently obtaining his goods. Evidence of this character is admissible as tending to show a fraudulent intent and scheme on the part of the accused to obtain the property of others without paying for the same, and as warranting an inference that the transaction with the prosecutor in the case on trial was made in pursuance of the same general purpose.</p> <p>.3. While under the rulingmf this court in Lamar v. Psarre, 90 Ga. 377, statements contained in an unsworn petition, plea or answer filed in a civil case and signed by counsel only, would, in the trial of another civil case to which the person apparently represented in the former case by such counsel was a party, be admissible as admissions made by such person, such statements would not in a criminal trial of the latter be admissible against him as incriminating admissions, unless it affirmatively appeared that the counsel referred to was authorized to represent him in the civil case and also authorized to make in his behalf the particular statements in question. The rule laid down in the above cited case is not applicable to criminal cases.</p> <p>4. Except as to the errors committed in admitting in evidence against the accused certified portions of the equitable petition filed against him and of what purported to he his answer to' the same, and in charging thereon, no cause for a new trial appears.</p>

<p>1. Although the declaration stated facts showing the tortious killing of the plaintiff’s child hy the defendant, and alleged that the child “was a hoy well formed, precocious and of strong and robust physical powers for a child of his age; that he was physically sound in every respect, and was capable of rendering, and did render, to the plaintiff valuable services, by going upon errands to neighbors residing near to plaintiff’s residence; picking up and bringing in coal and chips to make ■and keep burning fires in the house; bringing the broom and ■other articles used in house cleaning, to ‘his mother; picking up and carrying out of the house trash and litter, which tended to render untidy in appearance plaintiff’s home; watching and amusing plaintiff’s younger child, while his wife was engaged in cooking and attending to her household duties, and that these services were worth to' the plaintiff the sum of two' dollars per month, no cause of action entitling the plaintiff to recover for the child’s services was set forth, it being also alleged in the declaration that the child was only one year, eight months and ten days old. The allegations of the declaration should be construed all together, and the courts will take judicial cognizance of the fact that an infant of this age is incapable of rendering valuable services.</p> <p>2. In such a ease the father of the child killed is entitled to recover the expenses necessarily and reasonably incurred in the burial of the child, including compensation for the loss of such time on the father’s part as was needed for this purpose.</p>

<p>1. Where the parties to a written contract mutually agree therein that in case one of them fails or refuses to comply with its covenants the other shall retain as liquidated damages a stated sum of money already received by the latter from the former, which sum is reasonable in amount, and it appearing from the terms of the contract as a whole that the damages resulting from a breach thereof were the subject-matter of calculation and adjustment between t'he parties, and that the sum specified was really intended as compensation and not as a mere penalty, the law will enforce the contract as made.</p> <p>2. Accordingly, where the owner of land, by a written instrument in the form of a bond, acknowledged the receipt from the ohlisee therein named of a specified sum, and stipulated that upon the payment by the latter of another specified sum, within a stated period, the maker would convey to him certain described realty, the instrument containing, however, no promise by the obligee to pay anything, hut providing that upon the non-payment of the sum last above referred to at maturity and for ten days thereafter, the bond should be void and the maker should have “the right to re-enter and take possession of the property above described, and the sum paid upon the delivery hereof shall be retained by [the maker] as liquidated damages for tihe non-compliance by [the obligee] with the terms of this bond,”, and it also appearing that the obligee, by an entry upon the bond, agreed “to he hound by every stipulation and clause therein contained:” Hold, that, upon the refusal of the latter to make the deferred payment within the time limited, neither the maker of the bond nor his assignee could maintain against the obligee an action for the amount of such deferred payment, nor for a balance thereof, where a partial payment had been made upon the same, it not appearing that the obligee, at the time of such refusal, was in possession, or in any manner resisting a reentry by the maker of the bond.</p>

Attachment for contempt. Before Judge Sweat. Glynn •superior court. August 27, 1896. Elsa Briesnick brought her petition for permanent alimony 'against Ernest Briesnick, and -obtained a verdict for ■$7,500, with $750 as attorneys’ fees, beside interest and ■costs. Judgment for these 'amounts was entered, with an ■ order that defendant pay them to plaintiff instanter.

<p>Indictment for murder. Before Judge Smith. Wilcox superior court. March term, 1896.</p>

<p>Ctomplaint for land. Before; Judge Eish. Sumter superior court. ' May term, 1895.</p>

<p>Indictment for murder. Before Judge Beck. Pike-superior court. Special term, May, 1896.</p>

Indictment for murder. Before Judge Reese. Hancock superior court. February term, 1896. Frank Roberts, a child of four -and a half years, was killed by swallowing a strong solution of potash. The evidence is to- the effect that Sam Broadnax, the accused, administered the potash to -the child. His brother Ned Broadnax was present. After conviction a motion for new trial was -overruled.

Indictment for burglary. Before Judge Fish. Sumter superior court. May term, 1896. Tire burglary was done in April, 1896. The motion for new trial was upon the grounds that the verdict was -contrary to law and evidence; and be'cause of newly discovered evidence. In support of the last ground movant produced two- affidavits: (1) -Henrietta Reese: She is personally acquainted with defendant, and was personally acquainted with Ms m-olther in her life.

<p>Indictment for murder. Before Judge Smith. Lowndes superior court. May term, 1896.</p>

<p>Indictment for murder. Before Judge Spence. Pierce superior court. May term, 1896.</p>

<p>Indictment for selling liquor. Before Judge Atkinson. City Court of Brunswick. May term, 1896.</p>

<p>Indictment for simple larceny. Before Judge Butt. 'Talbot superior court. March term, 1896.</p>

<p>Indictment for murder. Before Judge Eisb. Sumter : superior court. May term, 1896.</p>

<p>Indictment for murder. Before Judge Gober. Newton superior count. March, term, 1896.</p>

<p>Indictment for murder. Before Judge- Beelc. Henry superior court. April term, 1896.</p>

Accusation, of larceny from the house. Before Judge Ross. City court of Macon. August 8, 1896. Willie Seahrooks and Will Davis were accused of stealing $15 from the storehouse of W. L. Bazemore. Davis was tried and found guilty. He moved for a new trial on the general grounds, and his motion was 'overruled.

<p>Indictment for misdemeanor. Before Judge Milner. Bartow superior court. July team, 1896.</p> <p>George Cook and Dick Cook were indicted for the unlawful sale of liquors in Bartow county. They were found .guilty, and their motion for a new trial, made upon the general grounds alone, being overruled, they excepted.</p> <p>The evidence for the State in brief was: On December 24, 1895, one Chapman saw the two defendants with an old man and a young man passing his house about sundown. Stansell was not in the wagon. He came to* the house where Chapman was, and Chapman went back to the wagon with him, and he offered Chapman a dram which Chapman took. Ho money was passed, and nothing was said about paying for the whisky. On the same day Tom Cowart saw George Cook near Cass station, who offered to sell him some tobacco* which he had under his aim; and after talking with Cowart about the tobacco*, Cook said if Cowart saw 'anybody who wanted anything he thought he could get it. Cowart saw J. C. Waldrup in a buggy with George Cook on the same day at old man Denson’s in Bar-tow county, and they got out of the buggy and "Waldrap took a jug out o*f the buggy and went towards the wagon which was in Andrew Denson’s yard; but George Cook did not go in that direction but went to* the house, and Dick Cook was not present. Cowart never saw either of defondants sell any whisky and has never seen or was present when any was sold. About eight o’clock in the morning of the same day, J. 0. Waldrup, driving in his buggy towards Cass^ulle, met George Cook on the road, and Oook had some tobacco twists and offered to sell some to Waldrup. Waldrup told Mm he was looking for some whisky, and Oook said he knew a man who had some and would tell Waldrup Where he was, 'and indicated where the man was. Waldrup asked him if he would get in the buggy and drive with Waldrup, and Cook did so. It was near the Denson house, and Obok pointed at an old looking man and said he thought this man would let Waldrup have what he wanted. Waldrup went with the man to- the wagon and Oook went the other way into- the 'house. Waldrup bought a gallon ■of -apple brandy from the old man, and paid him for it. •George Oook had nothing to do- with this sale, 'except as •stated, and Dick Oook was not there. Waldrup never 'bought any whisky from either of them, and never saw them sell any. During the night of December 23 d, George C'o-ok and Stansell came to the house of Denson, George’s father-in-law. George fold Denson that he and ■his -brother had come down to sell tobacco and had a lot -of it in the wagon which was in the yard. There was no whisky in it that Dens’on saw. Denson left home about ■eight -o’clock on the 24th, and the wagon was there- then; came back -about three, and it was gone. Ile-nry Halcomb ■was at Denson’s house when George and Stansell came, and .got a dram of whisky from George. George had a pint bottle about half full in his pocket, and gave Dens'on some before breakfast. Denson never saw either -of defendants sell ■whisky. One Wriggins lives about three- miles from Oass■ville, -and on December 24th got s'ome whisky from an old man -out in the Mack Johnson field, 'and saw Plunket Hay-:good get some and pay for it, Tom Cowart told Wriggins where the whisky was and how h-e could get it. The whisky was in two kegs of ten 'and fifteen gallons apiece, and sold by 'an old looking man whom Wriggins did not know. Defendants were not there, -and Wriggins never-saw either of them until this trial. A wagon was near the house of Andrew Denson. On December 24th, George Oook passed the house- of B. F. Posey and asked Posey if he wanted some good tobacco; he s-ai-d he had a lot of it in the wagon, and gave Posey a sam-ple. Posey bought some tobacco' from Oook, which he delivered afterwards. Posey sent for s-ome brandy by Dyar, who- went to- Denson’s, but-no whisky was there. Posey was at Denson’s, and the brandy that Dyar got for him he got out in the- Hack Johnson field near Denson’s house. Posey never saw either of defendants sell whisky or brandy. On December 24th, Dyar went np to- Denson’s to get some brandy and saw George Oook at the house, but did not get any brandy there. Dyar did get some- brandy some distance from the house. Dyar met an old man near the- house- and asked him if he could get some brandy; the man said, “Let’s take a walk,” and Dyar went off in the- field with him -about half a mile, and he sold Dyar some brandy which Dy'ar paid him for. George Oook did not go with them .-and had nothing-to s-ay -about it, and his brother had nothing to do with the sale. Posey put Dyar on to it and went with Dyar to show him where he could get it. In the afternoon of the same day Chambers, in Bartow county, beyond Denson’s, overtook a w-agon which was headed towards the mountains. An old man was driving the wagon, and defendants and a young man named Dens-o-n were near the wagon. Bought a quart from the old man. Chambers never saw either off defendants sell a drop. About two- o’clock on the night -before December 24th, when Halcomb -was- spending the-night at Denson’s, defendants and old man Stansell arrived in a covered wagon with whisky and tobacco in it. The wagon and one of the mules belonged to Dick Oook and the-other mule to- Stansell. George Oook slept in the w-agon that night, and Stansell and Dick in the house. George-said that he and his (brother and (Stansell were interested in some whisky they had hauled down, and that each owned one third of it. ITalcomb saw 'Waldrup come to the house that morning and go> to- the-place where old man Stansell was and get into the wagon. George 'Cook came with 'Wa-ldrup but went in the house. ITaloomb never sa>w defendants sell any whisky. The- whisky was in kegs in the wagon. Defendants and Stansell live near each other and near the line of Pickens and Gilmer conn-ties. They left for home late in the evening of December 2éth. The wagon and whisky were- carried out in Johnson’s field that morning. S. A. Denson, brother-in-law of George O-ook, went home with defendants. They were walking, and the wagon was behind with old man 'Stansell driving, when Jim and Charley Chambers caught up with it and had some talk with Stansell. Defendants were with Denson at that time away from the wagon, and Denson knows they had nothing to do with what transpired at the wagon, -any more than Denson did.</p>

Indictment for assault -and battery. Before Judge Mil:ner. Catoosa superior court. February term, 1895. Buchanan was indicted for assaulting 'and -beating Culler; and after conviction, excepted to the- refusal of a .new trial. It appears, that Bucbanan went with Hooker to ■Culler’s house to see him about his oo-wb getting into a field ■which Buchan'an had subrented to Hooker.

Indictment for rape. Before Judge Eish. Webster superior court. April term, 1896. Bell was indicted for rape of his daughter Minnie. He was found guilty and recommended to mercy. His motion for new trial was overruled, and he excepted.

<p>Indictment for burglary. Before Judge Callaway. [Richmond superior court. April term, 1896.</p>

<p>Indictment for murder. Before Judge Hart. Baldwin, superior c-ourt. July term, 1896.</p>

<p>Indictment for -assault to- murder. Before Judge Gober. Houston superior court. April term, 1896.</p>

Accusation of larceny from tire bouse. Before Judge Berry. Criminal court of Atlanta. August term, 1896. Moore was convicted of larceny from the house, and his motion for a new trial was overruled. The grounds of the motion, are, that the verdict is contrary to law and evidence. For the State it appeared, that a lot of flour was. stolen from a warehouse where Moore had worked for about ¡three weeks prior to the theft.

<p>Indictment for assault to rape. Before Judge Gaudier. DeKalb superior court. August term, 1896.</p>

<p>Indictment for murder. Before Judge Hutchins. Oeo:nee superior court. July term, 1896.</p>

<p>Complaint on note. Before Judge Eiah. Sumter -.superior court. November term, 1895.</p>

Motion to dismiss writ of error. The judgment excepted to was rendered on May 9. The judge’s certificate to the bill of exceptions was dated July 24. In a further certificate 'he stated that the bill of exceptions was presented to 'him within less than thirty days after the date of the judgment complained of, but that on account of other pressing official business he had not h'ad time to examine, correct and certify the same -before.

<p>Complaint. Before Judge Eish. Sumter superior court. May term, 1896.</p>

Certiorari. Before Judge Spence. Decatur superior court. May term, 1896. Gassett sued the railroad company for $20 for two cows hilled, and obtained a verdict for tlb'at sum. By certiorari defendant alleged 'that the verdict was contrary to law and evidence and without evidence to support it. The certiorari was overruled, and defendant excepted. There was; evidence for plaintiff, that the cows were killed by defendant on the night of September 8, 1895, and were worth $20.

<p>Action for damages. Before Judge Bower. Dougherty superior court. October term, 1895.</p>

<p>Actiom on bond. Before Judge Spence. Dougherty superior court. April term, 1896.</p>

<p>Appeal. Before Judge Hansell. Brooks superior court. May 'term, 1896.</p> <p>I. L. Walker, on October 2, 1894, to- secure the payment -of his promissory note for $200 due October 1, 1895, executed a conveyance of 245 acres of land in Brooks county, the words of the conveyance being: “I hereby bargain, sell and convey to the payees of this note, their heirs and assigns.” The instrument contains the following clause: "And in case of failure to- pay said indebtedness at the maturity 'thereof, the payees of this note, their -agent, attorney, heirs or assigns, are hereby irrevocably authorized and empowered to- seize and take possession of said property, and to sell ’the same for cash at public outcry in'front of the court-house door in said county, -after having advertised said property a.t said court-house for ten days by written or printed notice, and apply the proceeds -of said sale to the payment of said indebtedness, -and all costs of said sale, including ten per cent, additional for further attorney’s fees; and the balance, if any, to be subject to any order. And the payees of said note, -their agent, attorney, heii-s and assigns, are fully authorized to bid at said sale, and to make a fee simple title to- said property to- the- purchaser -or purchasers.”</p> <p>Walker remained in possession of the property up- to- the time of h’is death, October 31, 1895, an-d his wife has since been in possession. She applied for a year’s support for hei’self and four minor children, and the appraisers made a return setting apart for this purpose the land so conveyed, in addition to a lot of personal property. Objections to the return were filed by the holder of the conveyance; which having been submitted to- the judge without a jury, he held that the instrument was a deed conveying the title, •and that the only estate- which the heirs of Wafer have in the land is -the equity of redemption after paying -the debt to secure- which t'he deed was given. To -this ruling Mrs. Walker excepted.</p>

<p>Equitable petition. Before Judge Beck. Pulaski superior court. November term, 1895.</p>

<p>Ejectment. Before Judge Smith. Twiggs superior-court. April term, 1896.</p>

<p>levy and claim. Before Judge Smith. Dodge superior-court. March term, 1896.</p>

<p>Accusation of larceny from the house. 'Before Judge .Berry. Orimiual court of Atlanta. September term, 1896.</p>

<p>Garnishment. Before Judge Sweat. Glynn superior •court. December term, 1895.</p>

<p>Equitable petition. Before Judge 'S’weat. Ap-pling.; superior court. Jauu-ary 8, 1896.</p>

'Certiorari. Before Judge Sweat. Appling superior court. January 24, 1896. Suit was Brought upon a promissory note. The evidence for plaintiff was to the effect that he traded for the note before it -became due; and without any notice whatever of •dishonor or defense. Evidence for the defendants tended to- show that 'the note was obtained from defendants by fraudulent representations, not of the holder of the note. ’There w’as a verdict for defendants.

<p>• Petition for certiorari. Before Judge- Sweat. Glynn •county. March 23, 1896.</p>

<p>Complaint. Before Judge Sweat. Appling superior ■court. Eebruary 15, 1896.</p>

<p>Action for damages. Before Judge Sweat. Ware-superior court. April term, 1896.</p>

<p>Action for d-aan'ages. Before- Judge Atkinson. Oity eou.rt of Brunswick. May term, 1896.</p>

Action on insurance policy. Before Judge Eve. City court of Richmond county. May term, 189‘5. On November 1, 1893, a policy of fire insurance for $300 was issued on a dwelling-house in Augusta, for ■twelve months from that date. Upon oral application for the policy, the local agents of the insurance company .sent an inspector to' examine the premises, and issued the policy after such examination was made.

<p>Action for damages. Before Judge Sweat. Appling superior court. March term, 1896.</p>

<p>Indictment for larceny after trust. Before Judge Felton. Bibb- superior court. November term, 1896.</p>

Levy and claim. Before Judge Lumpkin. Pulton superior court. September term, 1895. An execution in favor of the Mutual Loan and Banking •Company was levied upon realty which was claimed -by •Jacob Haas, Moms Adler and Isaac Liefaman. It was conceded that the rulings of 'the court upon questions of law would control the result.; and a verdict for 'the claimants was directed. Plaintiff excepted.

'Complaint. Before Judge Lumpkin. Enlton superior ■ court. September term, 1895. The petition of Abraham M. Oolton against Rosa E. Brown, administratrix of Joseph T. Brown, was dismissed ■on demurrer; to which ruling the administrators of Oolton . excepted. The facts shown by the petition are, in brief, as follows: On April 5, 1880, George W. G'arrett, as guardian of Thom'as E. 0.

<p>Where an action was instituted by a nominal plaintiff alleging itself to be a corporation when in fact it was none, the action was not saved from the operation of the statute of limitations by an amendment afterwards made introducing a natural person -as a party suing for the use of the original plaintiff; and the defendant, in aid of the plea of -the statute, as against the new plaintiff, could plead -and prove that the original plaintiff was not a corporation, the statutory bar having attached while the action was pending, and before the amendment was made.</p>

<p>Distress warrant — appeal. Before Judge Lumpkin. Eulton superior court. September term, 1895.</p>

Complaint on note. Before Judge Reid. City court of Atlanta. March term, 1896. Moody & Brewster sued Steinau 'as maker and Westmoreland and Goldsmith as endorsers, October 16, 1894, upon a promissory note for $100 principal, dated July 25, 1894, payable at Rank, and due “sixty days fixed after date.” Defendants pleaded: (1) Denying that they are due plaintiffs $100 besides interest.

Complaint on note. Before Judge Reid. City court of Atlanta. March term, 1896. H. H. Cobb sued ~W. E. Johnson upon a promissory note for $Q01.50 principal, dated September 5, and due December 1, 1895. Defendant filed a plea which was stricken on demurrer.

. Complaint. Before Judge Van Epps. City court of Atlanta. January term, 1896. Suit was brought by May Paulin© Cason and Charles ■and.

<p>1. Under an -act providing that all eases brought in 'a designated city court should 'be '“returnable to and triable at the term next ensuing after twenty 'days have elapsed from the filing,” a case in that court, the declaration in which was filed on the 12th day of June, 1894, was ripe for trial at the ensuing July term, which began on the first Monday of that -month. This ■is true although the la'st of the twenty days prescribed by the statute in this instance fell upon the Sabb'ath day.</p> <p>:2. Á plea to an action brought by the plaintiff -as “The Gate City National Bank,” which alleged that “the said Gate City National Bank has been 'dissolved by a forfeiture of its charter, and by misuser of 'its franchises,” was good against a general demurrer or mere motion to strike. It will be presumed as against such a demurrer or motion that the charter of the bank in question was 'forfeited in the manner prescribed by law.</p> <p>.3. The drawer of a check upon a bank is not -absolved from liability thereon because of any delay in presenting the check for payment, when it does not appear that any loss resulted to the drawer from such delay, and in a suit upon such -a check against the drawer a plea by Mm alleging the delay but silent as to loss was properly stricken on demurrer.</p>

<p>Levy and claim. Before Judge Lumpkin. Eulton superior court. March term, 1896.</p>

<p>Complaint on note. Before Judge Reid. City court of Atlanta, January term, 1896.</p>

■Bail trover. Before Judge Berry. City court of Atlanta. March term, 1896. Mrs. Lizzie Hardigree, formerly Boberson, brought trover against Stamps for a piano. Held: that the levy and all proceedings thereunder were void, and that plaintiff was not estopped, by the adjudication of the claim case against her, from setting up title in herself in the present action; and excluded the evidence offered by defendant in support of Ms defences. To these rulings defendant excepted.

<p>To a declaration substantially alleging that the plaintiff sought to purchase a particular kind of loaded cartridges, and was negligently given, 'by defendant’s agent to sell, certain loaded cartridges which were represented to be of the kind asked for, and which were 'alleged to be very similar in size, make and mark to those desired, but were in reality of different calibre; and that on account of such difference in calibre, the plaintiff, he ‘being without fault or negligence in handling the cartridges so purchased, and while using the same properly, was injured by the premature explosion of one of them, — Held:</p> <p>1. That it was error to sustain a demurrer for want of a cause of action.</p> <p>2. That the allegations in the declaration authorized a submission of the case to a jury, to determine the facts involved; among them, whether or not the injury could have been avoided by the plaintiff in the exercise of ordinary care.</p>

<p>1. Where upon the trial of a claim case the claimant 'seeks, as against the execution levied, to show in support of his title four years adverse possession by .himself and those under whom he claims, under a conveyance from the defendant in execution, both a bona fide purchase and entry by the claimant and his privies, and such possession, are essential to his protection against the lien of the judgment upon which the execution issued, and upon the trial of the issue touching the bona fides of the purchase and entry of the claimant and his privies, it is competent for the immediate vendee of the defendant in execution to testify affirmatively that she bought and entered in good faith and without any intent to hinder, delay or defraud creditors of the defendant. Such testimony would amount to the statement of a fact, and would not be the statement of a mere conclusion of the witness.</p> <p>2. The possession contemplated by tbe statute does not necessarily involve an actual personal residence upon the premises, but such occupancy by visible signs of dominion as will serve to put persons interested upon notice of tbe adverse claim.</p>

Petition for direction. Before Judge Lumpkin. Fulton .superior court. March term, 1896. Upon the petition of creditors of the Georgia Mining, Manufacturing and Investment Company, a corporation organized May 1, 1889, under a charter granted by the superior court of Fulton county on March 19, 1889,'a receiver for its assets was appointed on January 31, 1895.

<p>Action on bond. Before Judge Reid. City court of Atlanta. July term, 1896.</p>

<p>Appeal from condemnation proceedings. Before Judge; Lumpkin. Enlton superior court. March term, 1896.</p>

<p>1. An equitable petition by a judgment creditor against tbe defendant in -execution and others alleged, in substance, that they bad all entered into a conspiracy to defeat the collection of the debt upon which the judgment was founded, that the common object of all the conspirators was to “hide” -and “coverup,” in the names of the coconspirators other than the defendant in execution, property which really belonged to him, and that in pursuance of this object various deeds had been executed purporting to convey specified parcels of realty to these, eocons-pirators, which in fact belonged to the judgment debtor; the particulars in each instance being set forth. The petition prayed for the cancellation of the various conveyances which were, for the reasons stated, alleged to 'be fraudulent; and for' a judgment subjecting -all the property to the petitioner’s exe— cution. Held, that this petition was not 'demurrable as failing to set forth an equitable cause of action, nor as being multifarious, nor for 'want of sufficient fulness in stating wherein the alleged fraudulent acts of the several defendants consisted.</p> <p>;2. There was no error on the 'trial of such a case, while the court was submitting to the jury the question as to whether or not a given deed from the defendant in execution to his wife, she being one of the defendants to the petition, was 'made with intent to hinder, delay or defraud the husband’s creditors, in Charging, in substance, that if the husband made the deed with such intent, and this was known to the wife, it was void as to the creditors, “even though it may appear that she had paid a valuable 'consideration”; nor in charging that if in accepting such deed she did so with the intention and purpose of delaying or defrauding such creditors, the deed would be void “although it may have been based upon a valuable consideration.”</p> <p>:3. That numerous instructions given by the court to the jury may not have been precisely and in every respect adjusted to the facts in evidence is not cause for a new trial, when it appears that these instructions were in themselves correct propositions of law, and that they contained nothing which could have misled the jury or in any way have tended to prevent their reaching a correct conclusion upon the Teal issues involved.</p> <p>4. "Where an equitable petition was brought for the purpose of enforcing 'the collection of a judgment not then dormant, the filing of such petition was of itself sufficient to prevent the running of the dormancy statute as against such judgment, so long as -the equitable action was pending.</p> <p>;'B. Where a defendant in a bail-trover action gave the bond required by the statute in such cases, and one of the sureties on that bond took from the principal in the same an indemnifying mortgage which was really for the 'benefit of this surety only, though it contained a general stipulation that he might under ' certain circumstances take possession of the mortgaged property “for the benefit and security of himself and cosureties on said ‘bond,” the fact that this mortgagee afterwards prosecuted the mortgagor for an Illegal sale of the mortgaged property, and thus recovered money he had been compelled to pay because of his liability on the 'bail-bond, in no way affected the right of another surety thereon to collect from the principal money which this latter surety 'had paid because of his liability on such bond, he being no party to the mortgage and having taken no part in the criminal prosecution.</p> <p>*3. Grounds of a motion for a new trial not 'certified cannot be considered. There was no material error, either of omission or commission, in stating the contentions of the respective parties. nor in t-Ke other charges complained oí; the court did not err in admitting nor in rejecting evidence; and there was sufficient evidence to warrant the verdict rendered, in so far as it found the property therein referred to subject to the plaintiff’s execution, and also to warrant the finding as to the amounts due-thereon; but inasmuch as there was no prayer in the petition authorizing any finding as to such amounts, direction is given, that the verdict and judgment be amended so as to strike therefrom all which" relates to this particular matter.</p>

<p>Action of libel. Before Judge Reid. City court of Atlanta. May term, 1896.</p>

<p>1. It is not essential to tlie legal completeness of a Mil of exceptions, sued out in due time and assigning error upon an order striking a plea, that it should contain an exception to the final judgment in the plaintiff’s favor. If striking the plea cut off a valid legal defense, a new trial will necessarily result.</p> <p>2. The law applies partial payments upon a promissory note infected with usury, first to the extinguishment of the lawful interest, and then to the reduction of the principad. Consequently, where such a payment on such a note exceeds in amount the lawful interest due thereon, the excess must, if the debtor so elects, be treated as a pro tanto payment of the principal; and a plea setting up such payment is good, though, filed more than twelve months after the making of the same.</p>

<p>Complaint on account. Before Judge Beid. City court of Atlanta. May term, 1896.</p>

<p>1. The action -being against an alleged partnership which the-declaration averred was composed of two named persons, and there being a sworn plea of no- partnership, an instruction to the jury based upon the hypothesis that such a partnership ■existed, was, in the absence of any evidence to- establish this -fact, and in the face -of positive and undisputed evidence to the contrary, unwarranted, and therefore erroneous.</p> <p>2. It was also erroneous to charge upon the hypothesis that one-of these persons had held the other out to the world as his partner, when there was n-o evidence that t-his had ever been done.</p> <p>3. The action and the evidence being as stated, it was error to pass an order reciting that a third person had been a member of the partnership sued, that this person had died; and directing that the action proceed against the two persons originally-sued, as surviving partners.</p>

<p>Complaint. Before Judge Berry. City court of Atlanta. May term, 1896.</p>

<p>Garnishment — certiorari. Before Judge Lumpkin. Bullion superior court. March term, 1896.</p>

<p>1. Where the plaintiff’s right of action depended upon the truth-of an allegation in the declaration, to the effect that a certain parol contract therein set forth had been made and agreed to by ‘all the heirs of a named intestate, and the evidence showed that the alleged contract had been made and agreed to by a. portion only of such heirs, there was a fatal variance-between -the allegata and the probata.</p> <p>2. An heir at law of an estate cannot, pending administration thereon, maintain an action against another heir for the conversion to his own use of personalty belonging to the estate; but may hold the administrator liable for knowingly permit-ting such a misappropriation.</p>

<p>Levy and claim. Before Judge Lumpkin. Bulton superior court. March term, 1896.</p>

<p>1. Where an order was passed in term fixing a day during the next term for the hearing of a motion for a new trial and granting the movant until that day to file a brief of the evidence, it 'was competent and lawful for the trial judge, in 'his discretion, to pass, on that day, another order granting the , movant still further time to file 'such brief.</p> <p>:2. The verdict being for an amount which was not, in any view of the evidence, warranted, even if the plaintiff was. entitled to recover ,at all, and the trial judge having committed errors at the hearing, it was right to grant a .second new trial.</p>

<p>Complaint on note. Before Jndge Reid. City court of Atlanta. IVIarch. term, 1896.</p>

<p>1. The offense defined 'in section 670 of the Penal Code was sufficiently charged in an indictment which, in sub-stance, alleged that the accused, with intent to cheat -and swindle a named person, bought from him, in a designated county, described personal property, and paid for the -same with a check upon a -specified bank in another county, fal-sely and fraudulently stating at the tim-e of the purchase that the check would be paid on presentation; the indictment also further alleging that the ■accused, .after obtaining possession of the- property, falsely and fraudulently, and with intent to cheat and swindle the 17 seller, went to 'the bank in question and stopped payment of the check, iso -that the seller was in fact defrauded.</p> <p>2. Construing all of its allegations together, such an indictment, in effect .and with sufficient distinctness, charged that a fraudulent intent to stop payment of the check had been formed and existed in the mind of the accused at -the time of the purchase; .and, therefore, the venue was properly laid in the county first •above indicated.</p> <p>3. If, however, the accused, at the time of purchasing, had in the bank money w-ith which to pay the check, and purchased in •good faith with no then existing fraudulent intention of stopping the payment of t'he check, the fact that he subsequently, in the county where -the bank was located, formed and carried ■out such an intention, would not subject him to indictment in the county where the purchase was made.</p>

<p>Indictment for robbery. Before Judge .Belton. Bibb superior court. November term, 1896.</p>

<p>1. Where an act established in a city a police court and provided that the mayor should be its presiding officer, without specifically designating the name by which such court should be known, an indictment charging the accused with carrying a pistol to the “mayor’s court” oí such city, 'sufficiently identified and described the court created by the act in question.</p> <p>2. Though a judge permitted a jury who had tried a criminal case to be polled, and though one of them answered he had not agreed to the verdict, this court will not reverse a judgment refusing, on that account, to declare a mistrial, when it clearly appears that the permission to poll ought to have been refused altogether, for the reason that the time within which the jury could properly 'have been polled had 'already expired before the permission to poll was asked.</p>

Indictment for murder. Before Judge Hart. Jasper superior court. September term, 1896. The indictment charged James M. Campbell and Adaline Gray with the murder of William Campbell by shooting him. In other counts Adaline Gray was charged as accessory before and after the.fact. The jury found the defendants guilty, with recommendation of life imprisonment. A new trial was granted as to Adaline Gray, and denied as to ■James M. Campbell, and he excepted.

<p>1. It was not, in 1892, an essential prerequisite to the lawful construction, longitudinally, in a street of the City of Atlanta, of ■a bridge the width -of which coincided with that of such istreet and 'the sidewalks thereto adjacent, that the municipal authorities should give to. the owners of lots fronting on such .street any notice of an intention t'o erect such bridge, or take any steps for the .appointment of -appraisers to assess the damages which such owners might -sustain by reason of- its construction. Therefore, in having .such a bridge built without doing these things, the mayor and general council were not, relatively to such owners, trespassers.</p> <p>2. Though the erection of such .a bridge may have rendered less convenient the means of ingress to and egress from an existing building upon an abutting lot, this was not a “taking” of property within the meaning -of that clause 'of the constitution which declares that “Private property shall not be taken, or damaged, for public purposes, without just and -adequate compensation being first paid.”</p> <p>3. The owner of an abutting lot which was -actually “damaged” by the erection of such ia structure would have been entitled to compensation; but there we-re not, ima given case, any damages if the market value of such lot, -after the completion of the work and on account thereof, independently of all -other causes, was as much as, or more than, it was before the work was done. In this connection, the rules laid down in Streyer v. Georgia Southern & Florida R. Go., 90 Ga. 56, are applicable, and the decision in -that case, upon a review thereof, is affirmed.</p> <p>4. In arriving at the value, before and after the erection of such a bridge, of a particular abutting lot and a building thereon, evidence as to what the value of the lot would have been without the building, and evidence as to the value of other abutting lots, was relevant.</p> <p>5. The verdict was fully (sustained by the -evidence, and the motion for a new 'trial discloses no reason which would warram this court in setting it aside.</p>

<p>Action on insurance policy. Before Judge Gober. Cobb-superior court. November term, 1895.</p>

<p>'1. Where a policy of fire insurance covering personal property was issued to a partnership, the fact that one member thereof subsequently executed and delivered to another member a mortgage on such property did not constitute such an incumbrance as was contemplated by a stipulation in the policy to the effect that it should be void “if the subject of insurance be personal property and be or become incumbered by a chattel mortgage.”</p> <p>:2. An insurance company which receives in due time papers sub■mitted to it in good faith as proofs of loss, should within a reasonable time, if the same are unsatisfactory, direct the attention of the party presenting ¡such papers to any defects which it claims exist therein; and where a company, without doing this or pointing out the alleged defects, retains the papers so submitted until they are, under a notice to produce, brought into court by it on the trial of an action upon the policy, the company will be held to have waived any objection to the sufficiency of such papers as proper proofs of loss.</p> <p>:3. In view of the entire evidence contained in the record of the present case, it was error to grant a nonsuit, but the various issues involved should have been submitted to a jury.</p>

<p>The plaintiff, in an action for an alleged breach of warranty of" ■title to land, in consequence of which be bad, as charged in •bis declaration, been compelled to pay -off, as an encumbrance -on tbe property, a special judgment 'binding tbe sam-e, was properly nonsuited upon proof s-bowing .that the warrantor' had not only caused the action resulting in such judgment to be defended, but after its rendition bad undertaken to- protect.. the plaintiff’s title by instituting legal -proceedings to set the judgment aside, that he had obtained a temporary injunction restraining its further progress, and that, while matters'thus stood, tbe plaintiff, oyer tbe warrantor’s objection, voluntarily paid off the judgment; it not appearing that the- proceedings in question were without merit, and therefore must necessarily have failed to accomplish tbe purpose for which' they were instituted.</p>

<p>Action on insurance policy. Before Judge Harris. City court of Eloyd county. December term, 1895.</p>

<p>The common la-w action of ejectment -was not .affected, nor the' provisions of .the code applicable thereto repealed, by the-pleading act approved December 15th, 1893.</p>

<p>Indictment for selling liquor. Before Judge Sweat. Appling superior court. September term, 1896.</p>

Complaint on note. Before Judge Berry. City court of Atlanta. March term, 1896. Charles P. Perot brought suit upon a promissory note for $5,291.33 principal, with interest from date at eight per cent., dated November 9, 1891, due May 9, 1893, payable to the Equitable Engineering & Construction Company or •order, and signed by the Athens Railway Company, John T. ^ Yoss, E. G-. Harris and J. A. Hunnicutt.

Certiorari. Before Judge Lumpkin. Fulton superior ■court. September term, 1895. On September 14, 1894, Witte obtained judgment against Hardee in a justice’s court, and thereupon an execution was issued October 1, 1894, which, on October 9, 1894, was levied by a constable upon a horse and wagon, and the same was advertised to be sold on October 22, 1894.

Motion to reinstate. Before Judge Berry. City court of' Atlanta. January term, 1896. Two cases at a regular bar meeting were regularly called' and assigned for trial for Eriday, January 24, 1896, in the-second division of the city court of Atlanta. On that day the ■ cases were regularly reached in their order for trial, were-regularly called for trial, and, there being no appearance-for the plaintiffs, were dismissed for want of prosecution..

Certiorari. Before Judge Lumpkin. Fulton superior court. March term, 1896. J. K. Maxwell sued Mrs. Mattie B. Ahnand upon an account for $63.50, made up of numerous items consisting mainly of amounts due for work done on vehicles.

<p>Indictment for opprobrious words. Before Judge Milner. ‘Gordon superior court. December II, 1896.</p>

<p>Indictment for murder. Before Judge Eelton. Bibb superior court. Hovember term, 1896.</p>

<p>Complaint for land. Before Judge Lumpkin. Enlton superior court. March term, 1896.</p>

<p>Indictment for murder. Before Judge Gamble. Jefferson superior court. November term, 1896.</p>

<p>’Though the toot that the oath prescribed in section 979 of tBhe Penal Code had not been administered to the jury trying a criminal case was known to counsel for the accused while the trial was in progress, it was not too late after verdict to take advantage of the court’s omission to have 'the jury duly isworn. The administration of this oath, literally or in substance, was essential 'to the legality of the trial, and. was therefore not a matter which could be waived by the .accused or his counsel, either expressly or by silence.</p>

<p>Action on insurance- policy. Before Pudge Reid. City court of Atlanta. May term, 1896.</p>

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. March term, 1896.</p>

<p>It toeing within the power of the ordinary of any county to' compel the filing in his office of any paper purporting to toe the last will and testament of a deceased person who at the time of ihis death resided in such, ooun'ty, and the count of ordinary having original and exclusive jurisdiction in the first instance of the probate of all wills, the superior court in the exercise -of its equity powers has no jurisdiction 'to enjoin the custodian-of ‘an alleged will from offering it for probate; nor to decree,, for any reason, the cancellation of an -alleged will upon which.no action has ever been tafeen by the court of ordinary.</p>

<p>Application for mandamus. Before Judge Lumpkin. Fulton county. September 19, 1896.</p>

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. September term, 1896.</p>

<p>Petition for injunction. Before Judge Smith. Fulton ■ county. October 21, 1896.</p>

<p>Indictment for adultery. Before Judge Ross. Oity court of Macon. December term, 1896.</p>

<p>'Injunction. Before Judge Lumpkin. Eulton county.. January 5, 1897.</p>

<p>The court of ordinary has no jurisdiction or .authority to compel a sheriff who has sold land under an execution, though the same has been issued from that court, to make to the purchaser la deed to the property. Strictly speaking, the latter’s remedy would be by mandamus; but in practice, a petition to the superior court in 'the nature of an application for 'a mandamus, followed hy other appropriate proceedings, would be sufficient.</p>

<p>1. Where two creditors- of a common debtor, who is insolvent, each has, relatively to the other, the highest lien upon a distinct parcel of real estate belonging to such -debtor, and there are outstanding against -the latter tax executions issued generally against him in personam and binding 'both parcels of the realty, the burden of discharging the liens of these executions should, as a general rule, upon -equitable principles, he apportioned between the two lien creditors by making -each of -the two pieces of property liable ratably for its proportion of 'the whole 'amount -of the taxes according to the respective valuations at which the property was 'assessed and returned for taxation.</p> <p>'2. This rule is not in -a given ease to be varied in favor of one of •the lien creditors 'because his lien was in -existence before, while that of the other originated after, the time when the lien of 'the taxes had attached; nor because the latter creditor’s lien was a mortgage given to indemnify him against loss upon a liability as surety whioh had been assumed before the mortgage was given.</p>

<p>Petition for certiorari. Before Judge Callaway. Richmond county. May 20, 1896.</p>

<p>1. As <a mortgage dees not in this State pass title to the mortgagee, the latter is not an “owner” of the mortgaged .property,, and therefore is not entitled under section 909 of the Civil Code ■ to redeem land upon which he held a mortgage where the same. was sold under a tax execution against the mortgagor.</p> <p>2. An equitable petition which, among other things, alleged that. a tax execution for an .amount 'less than $40.00 had been levied upon a tract of land of the value of $3,000.00, that the land had been sold thereunder, and that the same was easily capable of' subdivision, so that a parcel thereof could have 'been cut off ‘ and sold for an amount which would have satisfied the tax execution, as against a general demurrer, sufficiently alleged facts showing an excessive levy and a void sale.</p> <p>3. Irrespective of the question ruled up'on in 'the first note, the’, plaintiff’s petition set forth an equitable 'cause of 'action, and the trial judge was right in overruling a general demurrer to fEe same.</p>

<p>Habeas corpus. Before Judge Callaway. Richmond •county. July 15, 1896.</p>

<p>T. The defense in each of these cases turning upon the true meaning of two written contracts, to 'arrive at which it was essential 'to construe the same together, and their meaning, when thus construed, being unambiguous, parol contemporaneous evidence ■to explain the same w<as inadmissible; and .no sufficient or satisfactory evidence was offered to Show that subsequently to the execution of -the second of these contracts .any new and distinct agreement between 'the parties had been made.</p> <p>"2. The court properly construed the instruments 'in question, and committed no error in directing verdicts in the plaintiffs’ favor.</p>

Complaint for damages. Before Judge Lumpkin. Eulton superior court. September term, 1895. Tbe suit was for damages alleged to have been suffered through negligence of defendant in 'attending to a torse belonging to plaintiffs, and placed by them in his charge to be' kept and cared for in his livery-stable.

<p>A second affidavit of illegality filed Do -arrest the progress of an-execution previously levied, must state not only that the grounds newly laid in the second affidavit were unknown to •the affiant at the time the first was made, but that the facts upon wh-ich such second affidavit rests could not have been discovered by him in the exercise of due diligence prior to the; filing of the first affidavit, specifying Row and -wherein he -was. diligent.</p>

<p>Certiorari. Before Judge Candler. Clayton superior court. March term, 1896.</p>

<p>Appeal. Before Judge Gamble. Washington superior court. March term, 1896.</p>

<p>1. Errors alleged to have been committed in overruling a demurrer to a declaration cannot be considered upon a motion for a new triad. Such errors can only be reached 'by exceptions filed pendente lite or by direct exception ¡to the judgment complained of; and 'in the latter case the hill of .exceptions must he tendered for certificate within the prescribed time from the rendition of the judgment complained of; otherwise such exceptions cannot be considered.</p> <p>¡2. Though inspecting an appeal bond necessarily conveys information as to who was the losing party in ¡the court appealed from, it is not, in an .appeal case, cause for a new trial 'that this bond was taken by 'the jury into their room with the other papers in the case.</p> <p>'3. Where upon the trial of an appeal from -a county court the verdict was by inadvertence written upon the appeal bond instead of upon the declaration, this afforded no ground for setting it aside, it not appearing that -it was not duly received by the court and had not under its direction been entered upon the minutes.</p> <p>•4. For the unlawful eviction, by a landlord 'of a ¡tenant before the expiration of his term, the measure of 'the latt'er’s damages is at lea'st the value of the premises for rent, and the judge having so instructed the jury, it will he presumed, in 'the 'absence of anything appearing to the contrary, that he gave correctly further instructions as to how they were to arrive at such damages.</p> <p>•5. The 'evidence, though conflicting, being sufficient to sustain the verdict, the discretion of the trial judge in refusing a new trial will not be controlled.</p>

<p>Petition for injunction. Before Judge Gamble. Bullocb ■county. August 13, 1896.</p>

<p>1. Where a case has been tried in a justice’s court and an appeal regularly entered to a jury in that court, the presence of a jury legally empanelled and competent to try’the appeal is indispensable to the organization of the court which is authorized to try that case, and until a jury is so- -empanelled the magistrate is without jurisdiction to entertain a motion to- dismiss the case as origin-ally brought, for any defect of pleadings.</p> <p>2. Where in such a case, before any jury was empanelled, the magistrate dismissed the plaintiff’s case because of such defects, his judgment was mo't merely erroneous- but void, and was properly so -treated by him; and where after the rendition of such judgment the appellant departed from the court and the magistrate 'then empanelled a jury, -and, upon motion of plaintiff, reinstated the case and dismissed the appeal for want of prosecution, at the same time rendering judgment against the appellant and ¡his surety on the appeal, 'the latter judgment, •though -erroneous, was not void; and the same never having been set aside, an execution issued thereon could not be arrested by -an -affidavit of illegality.</p> <p>.3. Such an affidavit having, upon the state of facts above recited, been filed, and the same having been dismissed by the magistrate, his judgment in so doing should, on certiorari, have been affirmed.</p>

<p>Money rule. Before Judge Callaway. Richmond superior court. October term, 1895.</p>

Oertiorari. Before Judge Callaway. Richmond county. March 16, 1896. Smith brought hail-trover against Graham to recover the possession “of one terrier slut named Belle,” describing it, which he alleged was worth $10.

<p>1. According to the principles announced in the case of Bailie v. Carolina Interstate Building Association, ante, 20, the trust involved in the present case was, at the date of the rendition. of the judgment against it, unexecuted, and being represented in the person of the trustee, the judgment 'against him, if otherwise legal, bound the trust estate.</p> <p>2. The declaration contained a substantial statement of a, cause of action against the trust estate, and 'the alleged defects • therein being of such a character as were curable 'by amendment, the presumption in favor of the judgment will be that the court had before it such evidence as' would authorize a. decree binding -the trust property, and particularly is this true where the jury, in returning its verdict, found such facts in favor of the plaintiff as would authorize a court of equity in decreeing the claim of the plaintiff to be a charge upon the ¡ ■trust estate.</p> <p>3. While an absolute deed executed in 1887 for the purpose of securing a debt passed title to the grantee, yet if such deed was not recorded within thirty days from its date, it was postponed to the lien of a judgment against the grantor obtained after the execution of the deed and before the actual record of the same.</p> <p>4. The claimant of property levied on under a judgment cannot,. by equitable pleadings offered as an amendment to the claim,. foreclose a mortgage against the defendant in execution and thereupon obtain a 'decree for the satisfaction of such mortgage out of the proceeds of the property when 'sold. If the lien of' such mortgage is superior'to that of the judgment, it would not be divested 'by the sale; if the mortgage lien was inferior to • that of the judgment, there- would be no reason whatever for injecting foreclosure proceedings into the -trial of the claim case.</p>

<p>Complaint. Before Judge Callaway. Burke superior •court. May term, 1896.</p>

<p>Complaint on account. Before Judge Callaway. Richmond superior court. April term, 1896.</p>

<p>Action for libel. Before Judge- MacDonell. City court of Savannah. November term, 1895.</p>

<p>Complaint on account. Before Judge Norwood. City •court of Savannah. February term, 1896.</p>

<p>Complaint. Before Judge Norwood. City court of' Savannah. February term, 1896.</p>

<p>The verdict is supported 'by the evidence and is not contrary to law.</p>

Certiorari. Before Judge- Ealligarut. Chatham super-ior court. June term, 1896. To the facts appearing in the opinion the following statement of the evidence is added. W. E. Eennell testified: I live near Thunderbolt on line of defendant’s road. While at supper March 17, 1895, I heard the car stop in front of my garden fence, while on its’ trip -to Thunderbolt, and saw men moving around evidently-getting something off the track.

<p>2. Where a lessee railroad corporation, as a consideration for the lease, stipulated with the lessor corporation to declare and pay to the stockholders of the latter semi-annual dividends of not less than 7 per cent, per annum on the amount of their stock, but for several years failed to do so, these minimum dividends, upon afterwards being realized in part through a compromise between the lessor 'corporation and a successor of the lessee 'corporation, belong in so far as realized to the persons to whom they ought to and would have been paid as they accrued if the contract had been complied with; and the .interest therein of a particular stockholder who had conveyed his stock in trust, reserving the right to colle’ct for his own use the “dividends and profits” arising in his lifetime, did not pass to the donee of the trust hut remained in the stockholder himself, the creator of the trust, although the compromise and collection of the fund 'thereunder did not occur until after his death. These dividends as to the minimum amount were not undeclared, hut were predeclared by express contract between the two corporations.</p> <p>% Under the foregoing ruling, the trial judge having erred in awarding the fund to the -trustees of the two churches, it follows that a judgment requiring them to pay counsel fees out of this fund was likewise error. This is true even if the -counsel fees are properly chargeable to that fund. This matter and •the 'taxation of the court costs should be again considered and passed upon 'in the light of this decision.</p>

Affidavit of illegality. Before Judge Ealligant. Effing-ham superior court. May term, 1896.

<p>Where suit is brought in the county court for a sum exceeding fifty dollars in amount, which results, upon the trial, in a judgment for 'the plaintiff, the defendant may enter an appeal to the -superior court, and -this is true even though the defenses interposed by -the defendant in the county court were stricken upon demurrer; and the dismissal of such appeal, upon the ground that certiorari and not appeal was the remedy, was error.</p>

Complaint. Before Judge Norwood. City court of Savannah. July term, 1896. ' The Bank of Social Circle sued James T. and M. N.. Stewart, doing a cotton commission 'business as James T. Stewart & Son, alleging that defendants were indebted to> petitioner $119.43, besides interest from November 1, 1895,, at seven per cent., for money had and received for petitioner’s use. Petitioner alleged further, that on October 14, 1895, it wrote to defendants: “The lot of 144 B. C.,.

<p>Where a married woman has executed a note and mortgage to secure the payment of a sum which, from the recitals in such note and mortgage, appears to have been loaned to her and upon the faith of -her separate estate, she is not entitled to impeach'the transaction by showing that the papers were executed to secure the payment of her husband’s debts 'and not her own, unless she alleges in her plea and proves that at the time of their execution the lender knew that the 'transaction was merely colorable, ajnd was a scheme or device by which her own property was pledged to the payment of the debt of her husband.</p>

<p>Indictment for keeping open tippling-house on Sunday. Before Judge Ross. Oity -count of Macon., December term, 1896.</p>

<p>Indictment for murder. Before Judge Butt. Talbot superior court. September term, 1896.</p>

<p>The rule laid down by this court in the first head-note announced in the case of Central Trust Co. v. Thurman, 94 Ga. 735, upon a review thereof, is affirmed; and the present case is controlled by that rule.</p> <p>Atkinson, J., concurring specially.</p>

<p>1. While titles to property made as a part of a usurious contract are void, the right to set up the usury and have the conveyance declared void rests only with the maker and his personal representatives and privies. A stranger in interest will not be beard in an attack on a title claimed to be void for usury.</p> <p>'% Where a borrower conveys absolute title to land as security for a debt tainted with usury, and, for a good or valuable consideration, procures a bond for title to be executed by the grantee in favor of a third person, conditioned to convey such land to the obligee on payment of the original debt, such borrower, on the execution of these contracts, has divested himself of the right to redeem the land in any event, and would not afterwards be beard to avoid the deed so given.</p> <p>• (a) If the borrower, under the circumstances stated above, could not have the deed declared void, his personal representative could not do so.</p>

<p>1. Where realty is not returned for taxation and the owner thereof is known bp the tax-receiver, the latter must, .under section 847 of the Political Code, enter upon the digest a return of the property in the defaulter’s name, and in such case the execution for the tax must be issued against him. Where the tax officer does not know who is the owner or possessor of the unreturned land, the property itself must, under section 848, be assessed for taxation, and in that event the execution, for the tax is, under section 908, to be issued against the property and not against the taxpayer.</p> <p>2. A tax-collector has no authority of law to issue a tax execution against land in rem if its owner is in possession thereof at the time when it becomes the officer’s duty, because of the owner’s having made default in returning the land, to make a return for him.</p> <p>3. An execution issued under such circumstances against the land is a nullity, for want of jurisdiction in the officer to issue it; and consequently a sale thereunder is absolutely void.</p> <p>4. This case upon its facts is controlled by the law as ab<5ve laid down, and the losing parties have no just or legal cause for complaining ’ of the verdict rendered.</p>

<p>1. There is no law of force in this State which makes it incumupon a judge of the superior court, at the time when judgment is to be entered or after it has been entered, to allow or order a judicial investigation concerning the mental-condition of one against whom a lawful verdict of guilty has been rendered in a capital case and who has thereby become subject to the penalty of death; nor in either instance is a refusal by such judge to enter upon an investigation of this kind, with or without the aid of a jury, a denial to the prisoner of “due process of law.”</p> <p>2. The provisions of the code relating to inquisitions in such matters are sufficiently comprehensive to cover all cases where-the alleged insanity begins at any time after the rendition of the verdict of guilty.</p>

<p>:i. Where an owner of land authorized a broker to sell it at a stated price, agreeing to pay him a certain sum as commission for making the sale, and the latter procured an offer to be made for the purchase of, the land at that price, on stated terms of payment, which offer was accepted by the owner, the broker was entitled to his commission notwithstanding there was a failure to consummate the sale, if the cause of the failure was the refusal of the owner to proceed further with the transaction because she was dissatisfied with the terms of payment to which she had agreed. If this was the sole ground of objection assigned by the owner at the time of such refusal, other grounds of objection then known to her were waived, and would not avail her as a defense to an action for the commission.</p> <p>:2. The evidence warranted the verdict, and there was no error in denying a new trial.</p>

<p>This case, in principle, is controlled by the decision rendered by a majority of this court, as then constituted, in the case of Southern Ry. Go. v. Covenia, ante, 46, which decision is now-adhered to as correct. It follows that the court erred in not sustaining the demurrer to the declaration, and, this being' so, the trial and its result were nugatory and void.</p>

<p>1. As a general rule, persons in charge of a State convict, whether their custody and control of him be lawful or otherwise, are not liable in damages for a criminal tort committed by him while at large, although his being at large was by their permission, or because of their negligence in failing to keep him safely confined. Ordinarily, under such circumstances, the</p> <p>1 convict’s wrongful act would be too remote a consequence of his keepers’ misconduct in the premises to render them responsible to the person injured. This rule would, of course, be varied if they were in any way connected with the perpetration of the tort, or had reasonable grounds for apprehending that it would be committed.</p> <p>2. The present case falls within the general rule, and not within the exception indicated. Its material facts are summarized, and the conclusion therefrom stated, in the next note.</p> <p>3. That a “felony” convict, about thirty-seven years old, who had been continuously in the penitentiary for about twelve years and who had five times escaped therefrom, was “a man in robust and vigorous health, immoral, brutish, devilish, of vicious habits, of violent passions, prone to desirfe for sexual intercourse,” and a person “not restrained by any convictions of right and wrong, or governed by any principles of morality,” and that “all of these conditions and things” concerning him “were well known and were understood” by his custodians, “or ought to have been, because of what they knew of his said person, history, character and surroundings,” did not, without more, afford such cause for apprehending that he would, when an opportunity occurred, commit the' crime of rape upon an unprotected woman, as to subject his custodians to liability in damages for the perpetration by him of this offense at a time when, because of their fault, he was at • large and in the unrestrained control of his own movements.</p>

<p>Indictment for murder. Before Judge Sweat. Glynn ¡superior court. December term, 1896.</p>

<p>1. A plea in abatement to an indictment which alleges as a reason why the same should be quashed that a certain juror whose name appeared on the panel which found the indictment was not a competent juror because his name was not on the grand jury list “at the time the indictment was found,” did not negative the fact that the juror’s name was on the- . list either at the time the grand jury which found the indictment was drawn or at the time at which he was summoned as a grand juror, and was consequently properly stricken on demurrer.</p> <p>2. The conviction resting on circumstantial evidence alone, and there being no proof of the corpus delicti and no evidenco connecting the accused with the perpetration of the offense alleged to have been committed, the verdict is therefore contrary to law.</p>

Indictment for misdemeanor. Before Judge Bite. Bar-tow superior court. January term, 1897. Allen Jones was indicted for selling spirituous and intoxicating liquors in Bartow county. After conviction, his, motion for a new trial was overruled, and lie excepted.

<p>'This being a writ of error from a judgment refusing a second new trial, and the only exceptions being that the verdict is contrary to law and contrary to evidence, and there being some evidence to support the finding, the discretion of the trial judge in refusing a new trial will not be controlled.</p>

<p>1. Where in a claim case the burden of proof is on the claimant,, he must show title in himself, and this he cannot do by proving title in a third person.</p> <p>2. Points presented in the record, but not argued in this court, will not be considered.</p> <p>3. The question whether or not error was committed in admitting evidence is not properly made, unless it appears that the: evidence was objected to when offered; and the nature of the objection or objections then made must also be set forth.</p> <p>4. Alleged error in suppressing the answers to interrogatories on account of irregularities or defects in the execution thereof, cannot be considered when it does not appear what evidence the answers contained.</p> <p>5. The evidence warranted the verdict, and there was no error in denying a new trial.</p>

<p>"1. A breach of an implied warranty that goods sold are “merchantable and reasonably suited to the use intended” may arise when the goods, because of a defect which could not in the exercise of due caution be detected, are totally useless and worthless, though in point of fact the seller was ignorant of the existence of such defect.</p> <p>:2. Accordingly, where a declaration alleged that the plaintiffs purchased and paid for certain live stock which the defendant sold “under a general warranty implied by law as to soundness, healthfulness, etc.,” and that the animals were, at the time of the sale, infected with a named disease, rendering them “wholly and utterly worthless,” such declaration in effect alleged that the animals were sold under an implied warranty that they were merchantable and reasonably suited to the use intended; and therefore, as against a general demurrer, set forth good grounds for a recovery of the purchase-money, though it was not alleged that the seller knew of the diseased condition of the animals when he sold them.</p> <p>:3. Where such a declaration was also specially demurred to because it failed to allege that the diseased condition of the animals was known to the defendant “at the time of said alleged sale and warranty, and that the same was undisclosed by him," and, upon the judge’s thereupon announcing that he deemed the declaration insufficient, the plaintiff filed an amendment, alleging that the defendant, at the time of the sale, “knew or ought to have known,” of the defects in the animals, and the demurrer was then overruled: Held, that this latter ruling was right; for whether the amendment did or did not accomplish' the result intended, the declaration was good without it.</p> <p>•4. It appearing, however, that the case was tried solely upon the theory that the plaintiffs’ right to recover depended upon their proving a breach of the implied warranty embraced in par. 3 of §3555 of the Civil Code, viz: that the seller “knows of no latent defects undisclosed,” it was error to charge, in substance, that the defendant would be liable, not only in the event he actually knew, but also if he ought to have known, ■ <of the diseased condition of .the stock when he made the sale.</p> <p>5. The declaration distinctly averring the disease referred to> therein to have been “glanders,” and mentioning no other-disease, a requested instruction to the effect that the plaintiffs should be held to proof of the specified disease only, ought, not to have been refused.</p>

<p>Appeal. Before Judge Callaway. Richmond superior court. April term, 1896.</p>

<p>71. It being manifest from the verdict rendered in an action for the recovery of a described parcel of land that the jury intended to find for the plaintiff a portion only of the premises sued for, which portion they undertook to describe by means of a diagram, together with a written explanation thereof; and it being impossible, taking the verdict as a. whole, to ascertain what land it covered, or to locate the same with any degree of certainty, no writ of possession should have been issued.</p> <p>72. Where, in such case, a writ of possession was issued containing, among other things, an order directing the sheriff to take down and remove from premises described in the same manner as in the verdict a small portion of a brick wall, constituting a part of a building belonging to the defendant in the •action for the land, and the sheriff was about to execute this order, and in so doing would necessarily have materially damaged or totally destroyed that building, its owner was entitled to an injunction against the officer.</p>

<p>Proceeding against intruder. Before Judge Ealligant. ^McIntosh superior court. Uovember term, 1895.</p>

<p>1. Relatively to one who is not the owner of cultivated lands through which the track of a railroad company runs, such • company is under no duty, whether the notice provided for by the act approved November 11th, 1889 (Civil Code, §§2243-6), be given by the owner or not, to erect, keep or maintain cattle-guards for the protection of crops growing upon such lands. For a breach of duty imposed by that statute the owner of the lands only is entitled to maintain an action.</p> <p>2. This action having been instituted by a person other than the owner of the premises, he was not, under the act, entitled to recover, and there being no allegation of such a contract upon the part of the railroad company with the person alleged to ■ have been damaged as would impose upon it the duty to keep ; and maintain a cattle-guard at the point in question, upon a 'general demurrer to the declaration the action should have been dismissed.</p> <p>3. The above rulings render unnecessary further examination . of the assignments upon errors alleged to have been com- ; mitted at the trial.</p>

<p>Appeal. Before Judge Ealligant. Chatham superior-court. June term, 1896.</p>

<p>1. Where a trust is raised under which a life-estate is created in favor of a named person, with remainder over to certain other persons falling within and designated only by reference to a class, and upon the death of the life-tenant her personal representative undertakes to convey the fee, himself becoming indirectly the purchaser, upon a bill filed by a person claiming in remainder, for the purpose of reforming the original trust deed to the extent of declaring who was entitled in remainder, only the person who, as the representative of the deceased life-tenant, sold the property and in his own right afterwards became the purchaser, was a necessary party defendant; and á decree in favor of a given person claiming in remainder was binding, not only upon the defendant, but upon all persons claiming through him; and especially is this true as to one who took with'notice of the remainder estate.</p> <p>;2. An administrator who, under such circumstances, purchases the property of which his intestate died in possession, acquires no title; and if he attempt to create a lien thereon and the instrument relied upon to create the lien refers, for the purpose of defining the interest of the person executing it, to the original instrument, creating the trust, an inspection of which would disclose the existence of an outstanding estate in remainder, the person receiving the lien is charged in law with notice of the adverse claim of the remainderman, and takes subject to his right.</p> <p>.'3. Where, as in such a case, the life-estate is extinguished by the death of the life-tenant before the execution of the instrument by which it was sought to create the lien, there was nothing to which it could attach; and therefore, in a contest between the holder of the alleged lien and the tenant entitled in remainder, wherein the former seeks to subject the property to the payment of the debt secured, the latter should have prevailed.</p> <p>■4. No error of law was committed; and the verdict is fully supported, if not demanded, by the evidence.</p>

<p>1. Where the owner of a tract of land made two conveyances' thereof, dated respectively in 1878 and 1888, each conveyance ■ resting upon a valuable consideration, and the senior conveyance was not recorded in time, and though afterwards recorded, 'this was not done until after the execution of the second conveyance, which latter was recorded in time, the title of those claiming under the senior conveyance 'depended, as to priority, upon whether the junior grantee took with notice of the prior unrecorded conveyance.</p> <p>2. No error was committed in charging the jury or in admitting evidence. Upon the question of notice in the junior grantee there was a conflict of evidene'e; and there being sufficient evidence to support the verdict in his favor, the discretion of the trial judge in refusing a new trial will not be disturbed.</p>

<p>1. Where a servant sues his master for a personal injury resulting to him in consequence of the failure of the master to keep in proper repair dangerous machinery in connection with which the servant is required to perform labor, and it appears from the evidence of the plaintiff that, thoitgh the master was, in the respect alleged, negligent, the real proximate cause of the injury sued for was to be found in the negligence of the servant in undertaking to perform the service required of him in a manner and by the use of means expressly prohibited by the master in his instructions to the servant, of which instructions the servant was fully notified, the responsibility for the resulting injury rests upon the servant and not upon the master; accordingly, in such a case the court did not err in awarding a nonsuit.</p> <p>2. The provisions of the pleading act of 1893, as to the time within which defenses to actions shall be filed, are not applicable to answers or pleas filed by a receiver appointed under a creditors’ bill, in resistance to claims set up by intervening creditors of the defendant whose property the receiver is undertaking to administer.</p>

<p>1. While a judgment in this State,' in a general sense, hinds all the property, both real and personal, of. the person against whom it is rendered, the lien of such judgment, in the special-sense which prevents the alienation of the property of the debtor after its rendition, attaches only to such property of the debtor as is capable of seizure and sale under execution-based upon such judgment.</p> <p>2. Choses in action are not subject to seizure and sale' under executions based upon ordinary judgments, and can- only be reached by the judgment creditor through a garnishment, or-some other collateral proceeding; and inasmuch as such garnishment or collateral proceeding is necessary to fix the lien of the judgment so as to make it effective, an assignment of the chose in action by the debtor before the institution of such collateral proceeding passes to the assignee the property of' the debtor in the chose in action assigned, freed from the lien of a general judgment previously rendered against the assignor.</p>

<p>Where in an action of ejectment, brought by a married woman to recover property claimed by her as her separate estate, the right of the defendant depends upon the validity of a conveyance from herself to him, and the validity of such conveyance •depends upon whether it was executed upon consideration of the settlement of her husband’s debt, if there be evidence introduced by the plaintiff from which the jury would be authorized to infer that the consideration of the conveyance was the settlement of her husband’s debt rather than her own, and that these facts were known to the grantee at the time, the grant of a nonsuit is erroneous.</p>

<p>1. Where the purchaser of goods seeks to avoid the contract of' purchase on the ground of fraud, he must, upon the discovery of the facts constituting the fraud, at once announce his purpose to rescind, adhere to it, and make or offer to make restitution. If he remain silent, retain possession of the goods received under the contract as his own without complaint until long after the discovery of the fraud, he will he held to have waived his objection, and will be hound for the purchase price as though no fraud had occurred.</p> <p>2. Where the seller of goods, who has retained title, brings an action to recover the same, because of the nonpayment of the purchase price, and a plea is filed by the purchaser alleging fraud in the seller in procuring the defendant to become the purchaser of the goods sued for, and there is no allegation in .such plea that he was misled by such representations or that upon the discovery of the fraud he elected to rescind, and no allegation that he then restored or offered to restore the seller to his original status, it was without merit, set up no • defense to the action, and was properly stricken bn demurrer.</p>

<p>There was, as against the losing party, no error in charging, in refusing to charge, or in rejecting evidence. The verdict is supported by the evidence and is not excessive; and the court did not err in refusing a new trial.</p>

<p>Where all the assets of an insolvent corporation have been placed in the hands of a receiver, and through him are in process of judicial administration, and certain intervening creditors file an independent petition praying the court to direct the sale of certain property which still remains in the hands of the receiver undisposed of, upon the grant of an order so directing, and the subsequent sale of such property thereunder, such creditors moving in the particular proceeding are not entitled to be allowed their counsel fees out of the general fund, or out of the fund realized from the sale of such property. The property being already in the hands of the receiver under the original proceeding, the mere effort of the intervening creditors to speed the cause in order to enable them to realize at an earlier date than probably they otherwise would -have been; able to do, does not authorize, out of either of the funds above mentioned, the allowance of the expense incurred by them in. that proceeding.</p>

<p>1. Where sellers of goods filed an equitable petition against the purchaser and persons to whom he had given mortgages upon all of such goods not previously sold by him, those mortgages having been executed to secure the payment of antecedent debts; and where by such petition a case was made for rescission on the ground of fraud in the purchase, the petition also in substance alleging that it was impossible for the plaintiffs without access to the goods to separate the portions thereof belonging to each from a general stock in which they had been intermingled, and that for this reason they were, respectively, unable to accurately describe or identify such of their goods as remained unsold, or to state definitely what quantities and what kinds of the goods still on hand belonged to each, it thus appearing that equitable aid was indispensable to the plaintiffs’' obtaining complete relief in the premises; and where suc-h petition prayed for a return to each plaintiff -of his own goods, it would have 'been proper for the judge, upon evidence sustaining the allegations of such petition, to appoint a receiver to take charge of -and retain possession of all of such goods which had not been disposed of, until the question of title could be passed upon, and the rights of all the parties adjudicated. In such a case the question of the solvency or insolvency of the mortgagees is immaterial.</p> <p>2. Where upon the hearing of such a petition the judge, instead of formally appointing a receiver, ordered the goods on hand to be sold by the sheriff in distinct lots as identified by the plaintiffs respectively, and to hold the proceeds of each lot separate until otherwise ordered, the purpose being to keep-the money thus realized in the custody of the court until it could, he properly determined to whom the same should he paid, this was not as against the mortgagees, whether they, were insolvent or not, erroneous. As the court might have properly retained in its custody the goods themselves, the retention of their proceeds rests upon the same footing, the plaintiffs not objecting to the order of sale.</p> <p>3. In such case all the mortgagees were necessary and proper parties defendant to the petition.</p>

<p>1. There being, in a contest for the custody of a female minor.’ child between its mother and an orphan asylum, evidence to* warrant a finding that the mother was a lewd and abandoned’ woman, there was no abuse of discretion in awarding the custody of the child to the asylum.</p> <p>2. The ordinary by whom the writ of habeas corpus was issued and heard committed no error' in any of the rulings complained’, of in the petition for certiorari, and the judge of the superior-court therefore properly refused to sanction the same.</p>

<p>Action for damages. Before Judge Felton. Bibb" superior court. April term, 1896.</p>

<p>Dismissal of appeal. Before Judge Eelton. Bibb superior court. April term, 1896.</p>

<p>BibB Petitiou for certiorari, county. April 24, 1896. Before Judge Eelton.</p>

<p>1. A purbhaser to whom the identical property for which he bargained was delivered cannot, though induced to purchase solely by means of a false and fraudulent representation by the seller that the thing sold had certain qualities which it had not, maintain an equitable petition for “specific performance,” and thus compel the seller to deliver to him another article of like kind owned by the latter and in fact having such qualities, but. which the plaintiff had never purchased.</p> <p>2. In a proper action for the fraud and deceit thus practiced by the seller, the measure of damages would be the difference; between the value of the thing sold at the time of delivery and what would have been its then value if the representation, made by the defendant had been true.</p> <p>3. Even if the present action could, because of the alternative-prayer in the declaration, be treated as a suit for damages, the-judgment of nonsuit was right, there being no evidence warranting a finding for the plaintiff in any amount.</p>

<p>1. Upon the evidence contained in the record, the trial judge did not abuse his discretion in refusing to grant a change of venue.</p> <p>.2. A declaration made by one in extremis, who is conscious of bis condition, to the effect that a person afterwards indicted for bis homicide had “shot him down like a dog,” is a statement of a fact, and not the mere expression of an opinion by the person making the declaration, and is admissible in evidence as a dying declaration.</p> <p>3. When, on the trial of a person indicted for a homicide, it becomes a material inquiry as to whether a person slain had fired his pistol in the progress of a rencounter which resulted in his death, it is competent to prove by a witness who spoke from her own knowledge, that the deceased was accustomed to carry the hammer of his pistol on an empty cartridge; such evidence is admissible to establish a habit of the deceased, not as direct evidence of the fact in issue, but as a persuasive and legitimate supporting circumstance to be considered by the jury in determining whether the pistol found in that condition had in fact been fired.</p> <p>4. It is within the discretion of the trial judge, after the accused has concluded the introduction of his evidence, to permit the solicitor-general to introduce further testimony, either in rebuttal of the evidence offered by the accused, or in corroboration or confirmation of witnesses introduced on behalf of the State.</p> <p>5. The alleged newly discovered evidence, being such as on anT ether trial ought not to change the result, does not require the grant of a new trial.</p> <p>6. The verdict was amply supported by the evidence, and there was no error in refusing a new trial.</p>

<p>Action for damages. Before Judge Keid. City court, of Atlanta. January term, 1896.</p>

<p>Action on insurance policy. Before Judge Reid. City court of Atlanta. May term, 1896.</p>

<p>1. A certificate of membership in a mutual benefit life association, which carries with it insurance on the life of the member, is taken and accepted under the terms and conditions of the charter, constitution and by-laws of the association, in force at the time of the issuance of the certificate, whether reference to the same is or is not made in the certificate.</p> <p>(a) When an application for membership in such association declares that the constitution and by-laws are to be made a part of the certificate when issued, the certificate, constitution and by-laws of the association constitute the contract between the member and the association.</p> <p>(B) In such a case, when the certificate has attached thereto an assessment rate table showing by amounts the proportion of assessments which are to be made at ages from 15 to 65 years on each $1,000.00 insured, and the constitution and by-laws provide that at stated intervals assessments shall be made by the governing authorities on the entire membership for such sums as may be deemed sufficient to meet existing death claims, which shall be apportioned among the members according to age, the table attached to the certificate will be construed only to fix the ratio of payment by each member on the basis of age.</p> <p>2. A resolution passed at a convention of the members held under the terms prescribed in the constitution and by-laws, which simply gives to the board of directors power to pay death claims from current receipts which, under the constitution and by-laws, are applicable to another fund, while good as a bylaw, is not mandatory, but merely suggestive of what might be done. Without additional words, such a grant of power-leaves its exercise in tbe discretion of the board, and when an assessment is made by the board larger in- amount than it would have been if such current receipts were so applied, this-assessment cannot be held illegal or excessive under the terms-of such resolution or by-law.</p>

<p>Certiorari. Before Judge Callaway. McDuffie superior court. March term, 1896.</p>

<p>1. Where a railroad company was incorporated by an act of the General Assembly “for the full term of thirty years,” the act being silent as to any renewal or extension of the charter thereby granted, and it being declared therein that the company was incorporated for the purpose of building and using, with the consent of the city council of a named city, a horse railroad from a designated point within the corporate limits to a point or points outside of the same, a grant by the city council to the company, “their successors and assigns, for and during the term of their charter,” of a right of way through and over the streets of the city, expired on the date upon which-the period of thirty years specified in the charter ended, and was thereafter no longer effective.</p> <p>2. The above is true although such grant was made by ordinances and by a written contract, all of which were subsequently ratified and confirmed by an act of the General Assembly, which also declared that these ordinances and this contract were “not liable to be repealed by the city council,” and although in the contract the city council stipulated that it would “forever”' keep in force the second section of one of these ordinances, which, while entitled generally “an ordinance authorizing the construction of street railways” in the city in question, related exclusively to this particular company, the second section referred to among other things providing that “the cars and carriages of said company, running on said railways, turnouts and switches, and sidings, shall be entitled to the right of way over their said tracks,” and prohibiting teams and vehicles from obstructing the free passage of the company’s cars.</p> <p>■3. Where such a railroad company, in pursuance of an ordinance authorizing it to obtain from another railroad company “a lease for thirty years” of a track which had already been laid in certain streets, entered into a contract with the latter company by the terms of which the company first referred to was to have the use of that track “for the term of their charter,” this contract likewise expired by limitation on the day when the period of thirty years mentioned in the charter of the lessee company was completed.</p> <p>•4. The time for the expiration of the original charter being the 20th day of March, 1896, and the General Assembly having, on the 13th day of November, 1889, passed an act to continue this charter in force upon certain conditions and with certain restrictions in the act set forth, the company’s acceptance of this act made the same the company’s charter, and thereafter its corporate powers, rights and privileges were to be measured and limited by the provisions of this latter act.</p> <p>;5. Although this act, among other things, declared that the company to which it referred might, “at any time, by a majority vote of the stockholders, surrender their present charter before the expiration thereof and accept this new charter, with all its privileges and liabilities,” this was not the exclusive manner in which the company could accept the new charter. The same result could be, and in the present case was, accomplished by its applying to and obtaining from the city council, under and by virtue of this very act, valuable privileges and franchises which it actually used and enjoyed and subsequently sold to another corporation.</p> <p>»6. Having accepted the provisions of the act of 1889, which renewed and extended the charter life of the company for a period of fifty additional years, there was no authority of law for the company subsequently to apply to and obtain from the secretary of State an independent renewal of its charter under the act of December 20th, 1893, that act having no application ■save to corporations whose charters had expired, or were presently about to expire.</p> <p>'7. Inasmuch as the act of 1889 expressly declared that it should not “have the effect or be construed to extend or continue in force” the several amendments to the original charter of the company, which had been previously enacted, or the ordinances and contract above referred to; and also, that the right to use the streets of the city in question should be “subject to the consent of, and on such conditions as [might] be prescribed by, the city council,” it was certainly, after March 20th, 1896, essential that the company should again obtain such consent before being entitled to continue its use of‘the streets o£ the city for the purposes specified in its original charter.</p> <p>:8. The rule being that legislative grants of authority to municipal corporations must, where the rights of the public are concerned, be strictly construed, and that in such cases no power passes which is not clearly comprehended within the words of the statute or derived therefrom by necessary implication, an act authorizing a city council “to permit the connection by common depots, tracks, or otherwise, of all railroads in said city, or any of them, upon such terms and conditions'as may be fixed and agreed on between the city council and them,” did not give to the municipal authorities the power to confer upon any railroad company using steam motors the right to construct and operate a railway or railways longitudinally along .and over the public streets of the city. The municipality could not, under the grant embraced in the words above quoted, confer upon a railway corporation any higher or greater privileges than it would have been entitled to if these words, or words of like import, had been contained in a direct grant from the General Assembly to the corporation itself.</p>

Foreclosure of mortgage. Before Judge Felton. Bibb' superior court. 'April term, 1896. J. W. Lockett, trustee of Fannie Lockett, brought Ms-petition against William Lee Ellis, to foreclose -a mortgage, ruadle to secure ifflie payment of certain promissory note's-given by Ellis fo-r part of the purchase-money of certain realty in tire city of Macon, bought by him from the plaintiff.

Complaint on note. Before Judge Ross. City court of Macon. June -term, 1896. Suit was brought, July 12, 1895, upon a promissory note dated December 12, 1894, due six months after date,, for $1,000, •with a credit of $300 dated June 15, 1895.. The note is payable to Rebecca G. Abel, and is signed by R. P. Jarrarfet & Co., 'and by Mrs. J. A. 'Christian.

<p>Application for fees. Before Judge Eelton. Bibb sup e..irior court. April term, 1896.</p>

<p>1. The repeal of certain provisions incorporated in the charter of a municipal corporation, which are enacted in the course of a legislative revision and restatement of prior charter provisions bearing upon the same general subject, and expressed in substantially the same language, does not of itself operate as a revival of the same or similar provisions of the prior charter; upon the repeal of the revising statute, the re-enactment of such provisions was necessary to restore their force as law.</p> <p>2. Where by the provisions of such revising statute an office existing under the prior statute was recognized and recreated, and thereafter such provisions of the revising statute were in turn repealed, the effect of such repeal was to abolish the office, and this is true notwithstanding the repealing act in terms re-enacted certain other provisions of the same section of the charter by which the office abolished was created, and provided for the election by the municipal authorities of another officer corresponding in title with that of the incumbent of the office which had existed under the repealed statute.</p> <p>S. The act to amend the charter of the city of Macon in certain specified particulars, and for other purposes, approved December 11th, 1896, in so far as it deals with the office of “chief of police” for that city, does not contravene that provision of the constitution of this State which prohibits the passage of an act by the General Assembly containing matter variant from that expressed in the title.</p> <p>4. The act in question repeals so much of the act approved November 21st, 1893, as creates a new charter for the city of Macon, and as establishes the office of “chief of police” as a distinctive office; and as a consequence, that particular office, as it theretofore existed under that and previous charters of the city of Macon, was abolished, and the right of the relator to exercise its functions, under an election had in pursuance of that and the previous charters of such city, was extinguished. The title of the relator to the office which he seeks having been extinguished by the repeal of the law creating the office, the court did not err in refusing to allow the information quo warranto to be filed.</p>

<p>A written contract of affreightment stipulating that if the goods were loaded in a box-car the rate should be so much per hundred pounds actual weight, and if loaded on a flat car so much per hundred pounds for 10,000 pounds, the actual weight of the consignment being only 1,550 pounds, and the carrier having loaded a part of the goods in a box-car and part on a flat car, in a way to make the freight as an aggregate more than it would have been if the whole consignment had been loaded on either car: Held, that prima facie this was an overcharge, and in the absence of evidence on the part of the carrier showing why the goods were so loaded, the plaintiff, after paying the whole charge and complying with the terms of section 2316 of the Civil Code, was entitled to recover the amount of the overcharge, and in addition thereto the penalty prescribed by said act. Where a carrier has an option as to the mode of shipment, it is his duty to exercise it reasonably under the circumstances for the best interests of the consignee; and it is a breach of the contract to exercise it to his disadvantage, unless it is done in good faith and under circumstances which seem to require it.</p>

Action for damages. Before Judge Belton. Bibb superior court. November term, 1895. The declaration alleged, in substance: Defendants were duly appointed receivers of itibe railway company on June 21, 1892, and as such took charge of all the property, and since their appointment have been operating the same. They are both non-residents of the State.

Levy and claim. Before Judge Reese. Warren superior court. October term, 1895. An execution in favor of James L. Real against JamesRoms, dated April 3, 1893, issuing upon ¡tibe foneclosureof a mortgage dated Marcih. 29, 1893, was levied upon tibieland described in the mortgage, and Charity Jones inter■posed her claim to a life-estate in said property. The jury ■found the property not subject so far as the life-estate was concerned.

<p>Complaint on note. Before Judge Reese. Warren superior court. October term, 1895.</p>

Levy and claim. Before Judge Beese. Warren superior court. October term, 1895. Upon five promissory notes averaging about $75 each,, Jep. M. Oody obtained judgments against Jaick Thompson on November 23, 1888, the notes being dated December 12, 1884, January 1, 1885, and January 1, 1886, and' bearing interest and attorney’s fees.

<p>A devise, made prior to the adoption of the code, to one person, for life, with remainder over to two others, and after their death, to their bodily heirs,’ upon the death of the life-tenant vests the fee to the estate devised in the remaindermen as tenants in common; and upon the death of either, his heirs-are entitled to take the interest devised to him by descent from him, and not by purchase under the will.</p>

Affidavit of illegality. Before Judge Reese. Hancock superior court. February term, 1896. An execution from the county court in favor of Fox V, Crayton et al. was levied on certain horses, and defendants' interposed an affidavit of illegality.

<p>1. Where in the trial of an equitable action the main and controlling issue was whether or not a fraudulent scheme of the-nature below indicated had been entered into between the defendant and a brother for the purpose of defrauding the latter’s-creditors, it was competent for the plaintiff to prove that this, brother had separated from his wife, that she had Brought against him an action for alimony, and that, shortly after the-separation and before this action was begun, the husband had executed to the defendant various conveyances, the effect of' which was to place all, or nearly all, of the grantor’s property beyond the reach of creditors; this evidence being supplemented by other evidence -tending to show that the conveyances in question were really executed in anticipation of the-suit by the wife and in pursuance of the alleged fraudulent, scheme.</p> <p>■2. While the defendant’s knowledge of the pendency of the alimony suit would not, without more, have been sufficient to invalidate, -as fraudulent, a mortgage given to him by the husband after this suit was begun, the facts that this suit was' pending and that the defendant had notice of it when he took the mortgage were relevant circumstances to be considered by' the jury in connection with all the other facts in the case.</p> <p>3. The court' in admitting the testimony referred to in the preceding note limited, by appropriate instructions to the jury, the purpose for which they could properly consider it; and this, in the absence of any request for more specific instructions upon this point, was sufficient.</p> <p>4. There being ample evidence to support the verdict in favor of' the plaintiff, the trial judge being satisfied therewith, and this being the third finding for the plaintiff, this court will not. disturb it.</p>

<p>Action on insurance policy. Before Judge Harris. City court of Eloyd county. June term, 1896.</p>