Volume 101 — Georgia Reports

Levy and claim. Before Judge Gamble. Tattnall superior court. April term, 1896. Fi. fas. in favor of Epstein & Brother, Ferst’s Sons & Co., and Joseph Weed, based on judgments against Moring & Cow-art, of July 7, 1893, and April 9, 1894, were levied on realty in the town of Collins, as the property of W. IT. Cowart, one of the defendants in fi. fa. Claims were interposed by D. C. Cowart. The property was found subject.

<p>Prior possession of land under a claim of ownership is prima facie evidence of title in the occupant, upon which he may recover in ejectment, unless the defendant shows a better adverse title, by possession or otherwise. Such claim of ownership, if bona fide, may be supported by proof of a parol gift from another and entry thereunder, even where such entry was not made until after the donor’s death, and although it does not affirmatively appear that the donor had ever been in possession of, or had title to, the property. Such a gift would not pass title to the donee, but it could nevertheless be made the basis of an honest possession by the latter, accompanied by a bona fide claim of right, which could in time ripen into a perfect title.</p>

<p>Indictment for murder. Before Judge Smith. Wilcox superior court. September term, 1896.</p> <p>J. F. Powell was indicted for the murder of S. J. Reid, and was found guilty of voluntary manslaughter. His motion for new trial was overruled, and he excepted. There was testimony for the State by Dr. Page, who was 80 or 90 steps away from the place where Reid was killed, that he saw defendant and Reid talking, defendant standing against an oil-tank at Reid’s place of business, shaking his finger, and while thus engaged Reid suddenly sprang from his seat and seized defendant. Witness did not know whether he caught hold of defendant or not, but almost immediately after he seized him a pistol was fired and Reid staggered around while defendant walked out on the street. The testimony for the defense was, in brief, that in the conversation between the parties to the rencounter, together with other persons present, one of these others having remarked to'defendant that the grand jury had given his camps “ a pretty good send-off,” defendant replied that the surroundings of his camp were as good as those of George Williams (who it seems was a member of the grand jury in question, and was a relative of Reid). Thereupon Reid told defendant not to reflect on Williams’s wife in any such way; and defendant replied that he was not reflecting on Williams’s wife, that she was a lady so far as he knew; and repeated that the surroundings of his camp were as decent and clean as those of Williams or any one else. Reid said, “ God damn you, don’t you repeat that again” ; to which defendant replied that he meant it, and that it was as clean as the surroundings of any one’s place. Upon this Reid cursed him violently, jumped from the chair where he was sitting, seized defendant’s throat and shoved him back over the box in which the oil-tank stood, and began choking him. Witnesses tried to pull Reid off, but could not do so. The choking caused defendant’s eyes to roll and his tongue to protrude. After some struggling he fired a pistol which he pulled from his pocket, and thereupon Reid’s hold relaxed and he attempted to get the weapon (it having fallen from defendant’s hand), saying, “ I will kill you, God damn you.” There was testimony to the effect that Reid was the larger and stronger man of the two, and might have been able to kill defendant by choking him; and that Reid had some reputation for violence, while defendant’s character for peaceableness was good. Much testimony was offered by way of impeachment of various witnesses. The motion for new trial contains the following among other grounds.</p> <p>(1) W. A. Rodgers, a witness for the defense, on direct examination testified that he thought he was acquainted with the general reputation and character for desperation of Reid while he was living. To the question, “ Was that character good or bad ? ” he answered : “ I don’t know how to answer the question. I don’t know what makes it good or bad.” The court said, “It is not what you know yourself; it is the reputation that he bore with the people, what the people generally said about him.” The witness : “ People generally said he was a fussy man.” Error is assigned, in that the court excluded the witness from testifying to any other knowledge he had of the character of Reid for violence and turbulence, save that he got from general reputation and the sayings of others.</p> <p>(2) The same witness having so testified, the following cross-examination occurred: “ Q. Who did he have a fuss with ? A. Col. Eason, I have heard of several; I have never seen him have any. Q. You lived here several years with him? A. Yes, sir. Q. Engaged in business in the same little town? A. Yes, sir. Q. Only about five or six hundred people there? A. It is a small town, eight hundred or a thousand people. Q,. Not over a thousand? A. No, sir. Q,. Everybody knows everybody? A. Yes, sir. Q. And you know everything going on there? A. Usually I think I do. Q,. You didn’t know of his having any difficulty with anybody ? A. I knew that he had a fight with Mr. Hamilton. Q. And had a dispute with Wade McConnell about a negro? A. I have heard of that. I understood he had some hard feeling with Mr. ITenry Mashburn. I don’t know to what extent. Q. Don’t men have hard feelings with others that are not very desperate men ? A. I suppose they do. Q,. Those difficulties mentioned are about all that you have heard of, ain’t they? A. No, sir; those are not all I have heard of; I have heard he had a difficulty with Mr. Neil Connor and Mr. Needam Connor. Q,. He didn’t have a fight, did he ? A. I think not. Q,. Did he shoot or cut any of them? You never heard of his shooting or cutting any of them, did you? A. Never did.” On redirect examination the witness was asked, “ How was he regarded generally by the. people who lived in the town there, as to his general character?” On objection, the court ruled that defendant’s counsel could not go into specifics. Error is assigned, because the’ question is not one calling for specific acts of violence, but only as to general character, in direct response to the line of cross-examination ; and because it was the right of defendant’s counsel to examine the witness as to specific acts which were brought out on cross-examination, and he was debarred therefrom by said ruling of the court.</p> <p>(3) J. H. Hamilton for the defense testified, on direct examination, that he knew Reid; and was asked, “ Do you know his general character for desperation?” The court said, “Not what you know, but what is said of him in the community where he lived.” The witness answered, “Yes, if you are going by hearing.” Q. “Was that character good or bad?” A. “ It was a bad character.” Error is assigned, in that the court so restricted the witness as to exclude his personal knowledge, and required him to testify only to what he had heard from others.</p> <p>(4) Similar assignment of error upon a like ruling as to the testimony of Ned Sapp, a witness for the defense.</p> <p>(5) Upon cross-examination of Dr. Page, a witness for the State, the following occurred : “ Doctoi', what was the general disposition and character of Reid ? A. He was mighty quick to resent an insult. Q. Wasn’t he rather quick to give an insult? Objected to, as not a proper question. Q. Whát is his general character for desperation? Objected to, no grounds of objection given. By the. court: Ask him if he is acquainted with- his character. Q,. Were you acquainted with his general character? A. Yes, sir. Q,. What was it? A. He was pretty quick to resent an insult, if it became necessary. I had never known of his getting into but one difficulty while I was there. Q. How long have you been there ? A. Three or four years. Q. Don’t you know of his being in a difficulty with the town marshal? A. He was locked up once. Q. Don’t you know, he was very frequently in difficulties with everybody ? A. I don’t think he got into a fuss but once or twice while I was there. Q. Was he looked upon as a good, law-abiding citizen ? ■Objected to by counsel for the State, as not a proper question. By the court: Don’t answer that question.” Error is assigned, because the court limited the right of cross-examination by defendant’s counsel, and because the question was proper in showing, by an unwilling witness for the State, the character of the deceased for violence and turbulence.</p> <p>(6) Similar assignment of error as to the testimony of T. A. McLane, a witness for the defense.</p> <p>(7) R. E. Wishart, a witness for the defense, testified that he . saw defendant on the day of the homicide, and examined him at the jail; that he saw on the left side of defendant’s neck a print that looked like finger-prints, the print of two fingers. The question was asked, “ What seemed to be his condition then, with reference to swallowing ? ” and the witness answered, “ He was complaining of being sore.” Upon objection the court ruled out what defendant said. The witness was further asked, if defendant seemed to have trouble to swallow; and answered, “ I don’t think he did; he was just complaining of his throat being sore.” Error is assigned upon the court’s ruling, because the prisoner’s sayings at the time of the examination of said wound, as to the pain he was suffering, were admissible.</p> <p>(8) Similar assignment of error upon the ruling out of like testimony of sheriff Pollock.</p> <p>(12) Because the court erred in the following ruling : After both the plaintiff and defendant had closed their testimony ■and the defendant had discharged his witnesses, the solicitor-general moved to reopen said case to allow him to prove by Mr. Wimberly that, a short time after the difficulty, he took a drink with Dr. Powell and saw his neck, and that his collar was not ruffled, and that there were no abrasions upon his neck. This was the whole showing that he made. The defendant objected to reopening, on the ground that he had discharged his witnesses, and that Wimberly was sitting present in the court when counsel stated what he expected to prove by him, and that there had been requested by defendant a sequestration of the witnesses; that Wimberly was the postmaster and had been excused by the court to attend to the office, and had not been in the court during the hearing of the evidence. The court overruled the objection and allowed the testimony of Wimberly.</p> <p>The other material grounds are shown by the opinion.</p>

<p>1. Where an action brought by a widow against a railroad company and the receiver of another railroad company, for the negligent killing of her husband, was on trial, and after the evidence had been closed the court, being of the opinion that no joint liability had been shown, required the plaintiff to elect which of the defendants she would proceed against, and she elected to proceed against the defendant first named, this was in effect a dismissal of the action as to the receiver, and a verdict in the plaintiff’s favor against the remaining defendant, supported by evidence showing liability on its part and making a case consistent with the allegations of the declaration, was lawful.</p> <p>2. Although by reason of the court’s requiring the plaintiff to so elect the trial was reduced to a controversy between the plaintiff and the defendant against which she elected to proceed, the judge did not err, while charging the jury, in stating to them how the case originally stood, nor in explaining its status at the time when the charge was being given; nor, under the circumstances, was there any error in practically restricting the jury to the consideration of such parts only of the evidence as illustrated and threw light upon the liability or non-liability of this defendant.</p> <p>3. Where a platform constituting a part of a contrivance for weighing cars is so constructed as to become a portion of a railroad-track which is used, not only when cars are weighed, but also generally for switching them from place to place in the yard of the company wherein such track is situated, and where in the course of this work cars are constantly rolled over such platform, the party upon whom rests the duty of keeping and maintaining the entire track in a safe condition is bound to keep such platform in like condition, because the duty referred to relates to this portion of the track as much as to any other portion of the same.</p> <p>4. A railroad company which rents and gives complete possession and control of its yard and the tracks therein to the receiver of another railroad company in consideration of a stipulated rental in money and am undertaking by the tenant to do certain switching for the landlord in the yard, but which remains bound to keep such tracks in a safe condition, is, relatively to the receiver’s employees, under a duty of so keeping the tracks as to render their use harmless to these employees, and is responsible to one of the latter for the consequences of its own negligent failure to comply with this duty.</p> <p>5. The court in the present case committed no error in stating to the jury what were the main contentions between the parties, the same being whether or not the defective platform which occasioned the death of the plaintiff’s husband was a portion of the track upon which he was killed, and whether or not the railroad company was, relatively to the deceased, under a duty of keeping this platform in repair. The instructions with reference to these matters, complained of in the motion for a new trial, were free from substantial error.</p> <p>6. The instruction that if the railroad company and the receiver were under a joint duty of keeping the track in repair the plaintiff could not recover, was certainly not erroneous as against the railroad company.</p> <p>7. The charge as to the presumption of negligence arising against the railroad company, even if abstractly correct, was inapplicable to the facts of this case, hut it was harmless, because the evidence demanded a finding that the platform above referred to was a portion of the track in which it was situated, that the railroad company was under the duty of keeping this platform in safe condition, and that it bad negligently failed to do so.</p> <p>8. Some of the charges complained of, while not absolutely accurate in phraseology, were in the main correct, and when taken in connection with all the instructions given to the jury, could not have misled them, nor resulted in injury to the defendant against whom the verdict was rendered.</p> <p>9. The alleged negligence of the deceased in violating a rule forbidding the coupling of cars without a stick was not proved, the rule in question not being applicable to the facts of the present case.</p> <p>10. There was no error in denying a nonsuit; the charges complained of and not already referred to in the preceding notes were not erroneous. There was no error in the court’s remark in admitting certain evidence that it was “ a circumstance ” to be considered by the jury; there was error in refusing to admit certain evidence, but it was harmless and im- . material, as the main fact sought to be established by this evidence was otherwise abundantly proved, and practically undisputed. On the whole the verdict was fully supported by the evidence, and no sufficient cause for a new trial appears.</p> <p>11. Whether in the present case the court did or did not err in requiring the plaintiff to elect which defendant she would proceed against, inasmuch as she did make an election and obtain a verdict and judgment against one of the defendants, which in the trial court she sought to sustain and is now asking this court to affirm, she can not at the same time maintain a writ of error seeking to reverse the judgment requiring her to make the election, the two positions being entirely inconsistent. Had she desired to stand squarely upon her alleged right to obtain a joint judgment against both defendants, she ought, upon being required to make the election, to have declined to go on with the trial, and to have excepted to the court’s action in denying her the right to proceed against both defendants.</p>

<p>This being a contest on a rule to distribute money in the sheriff’s hands, arising from the sale of certain personal property, and the contestants being two creditors holding mortgages on such property, executed by the debtor on the same day, but filed for record at different times, and the evidence being conflicting as to which mortgage was first executed, and also as to whether the holder of the mortgage first filed had, at the time of receiving it, notice of the existence of the other mortgage, a judgment by the trial judge presiding without a'jury, awarding the fund to the mortgage first filed, will not be disturbed.</p>

<p>1. While, under ordinary circumstances, a railway company will be held legally responsible for the manner in which its conductor undertakes to exercise its right to expel from its cars one not entitled to ride thereon, yet where such a person expressly refuses voluntarily to alight, insultingly challenges the conductor to attempt to put him off, and then violently assaults the conductor upon his proceeding in a lawful manner to make the expulsion, and the latter thereupon resents and responds to the attack by resorting to great and unnecessary violence, the company will not be liable in damages for personal injuries thus inflicted, provided the assault made upon its servant was of such a nature as to excite his passions and render him unfit for properly performing the duties devolving upon him in the premises. This is so, because the person injured, by his own grossly improper conduct, is to be regarded as having forfeited his right to immunity from unnecessary violence by inviting the conductor to disregard and abandon his official duties and enter into a personal encounter on his own account and upon his individual responsibility.</p> <p>2. There being in the present case evidence to show that the encounter between the plaintiff and the defendant’s conductor was of the nature above-indicated, and the law as announced in the preceding note constituting; the main ground of defense relied on, it was error for the court, in its charge to the jury, to completely ignore the issue thus presented.</p> <p>3. Evidence as to what transpired during a subsequent difficulty occurring upon the same night, between the conductor and the plaintiff and two of his brothers, was properly rejected as being wholly disconnected with the main transaction under consideration, and as having no material bearing upon the merits of the case.</p>

<p>1. Where to an action upon a promissory note given for the purchase price of machinery, the defendant filed a plea of failure of consideration, and in support of such plea introduced evidence tending to show that the machinery was not reasonably suited to the purposes for which it was intended, because of certain defects existing therein, and where the evidence further showed that at the time of the execution of the note the defendant had actual knowledge of all of such defects, the law of implied warranty on the part of the seller did not enure to the benefit of the defendant, but on the contrary, he was properly held to have waived the same as to all such defects.</p> <p>2. Upon the trial of such a case, where the note sued on was absolute and unconditional in its terms, evidence of a parol contract and agreement on the part of the seller of the machinery, made and entered into at the time of the execution of the note, that if the machinery would not do a specified amount of work within a given time the purchaser would not be bound to pay the note and the signing of the note should be null and void, was inadmissible, as its effect would'have been to contradict and vary the terms of the written contract.</p>

Appeal. Before Judge Reese. Elbert superior court. March term, 1896. On August 10, 1895, Holland brought suit against Mrs. Adams upon a promissory note under seal, dated April 28, 1876, and due one day after date, with interest at one per cent, per month, for the principal sum of $84.82, less a credit of $8.20, dated November 3, 1876. The defendant pleaded the general issue; and also filed pleas of payment and set-off, which upon demurrer were stricken.

Action on bond. Before Judge Reese. Taliaferro superior court. February term, 1896. On January 26, 1895, suit was brought by the ordinary for the use of Rebecca J. Ogletree, upon the bond of J. D. Moore as administrator of John R. Moore, dated July 4, 1892. No defense was made by the administrator; but the sureties on the bond filed pleas (in addition to a denial of indebtedness) of payment and of release and discharge of themselves as sureties.

Action on contract. Before Judge Reese. Oglethorpe superior court. April term, 1896.

<p>Irrespective of all other questions presented by the record, the plaintiff failed entirely to prove that the alleged tort was committed by the defendant, or that, if committed at all, the latter was in any manner connected with its perpetration. Consequently the verdict was contrary to law and without evidence to support it.</p>

<p>1. In the absence oí evidence to the contrary, it will be presumed that the members of a corporation owning property are pecuniarily interested in the result of a lawsuit involving the title to a portion of such property ; and where they are so interested, and the opposite parties to the suit are the legal representatives of a deceased person, such members are incompetent to testify as witnesses in behalf of the corporation to communications in the nature of admissions made to them by the deceased with reference to the transaction under investigation at the trial.</p> <p>2. This being a proceeding to establish a copy of a deed alleged to have been executed by the defendants’ testator and to have been lost, and the evidence failing entirely to show that the copy sought to be established was either a literal or a substantial copy of the alleged lost original, the trial judge erred in refusing to set aside the verdict rendered by the jury in the plaintiff’s favor.</p>

<p>1. Where a policy of accident-insurance stipulates for the payment to the insured of a specified sum per week as an indemnity against loss, of time resulting from accidental physical injuries, and also provides that “if such injuries are sustained while riding as a passenger in any conveyance using steam, cable, or electricity, as a -motive power, the amount to be paid shall be double the sum above specified,” the insured, if injured while attempting to alight from a moving electric streetcar, is tobe regarded as having been injured “while riding as a passenger ■ in” the car, and if thus injured under circumstances entitling him to receive from the company a weekly indemnity in any amount, is to be compensated under the double-indemnity clause above quoted.</p> <p>2. .The foregoing is true although another clause of the policy includes in an enumeration of certain risks, which are not to be thereby covered, injuries occasioned by “entering, or trying to enter, or leaving a moving conveyance using steam as a motive power (except cable and electric streetcars).” This latter clause has no relation to that allowing the double indemnity, and can not be construed as excepting from its operation claims arising from injuries received upon electric cars.</p>

<p>1. One of the plaintiff’s most material contentions being that a horse attached to a vehicle in which she was riding became frightened on account of unusual and unnecessary noises alleged to have been made by the defendant’s car, and it being, under all the evidence submitted, a question for the jury whether the defendant was or was not in this respect negligent, it was error to charge that there was no evidence authorizing a finding that the defendant was responsible for the fright of the horse, and that if the animal was in fact frightened by the car, the defendant was not liable therefor, nor for injuries resulting therefrom, unless guilty of some negligence after the horse became frightened.</p> <p>2. A city ordinance which by its terms manifestly relates exclusively to railroads upon which cars are moved by locomotives propelled by steam, and which regulates the “running speed of trains and engines” within the city limits, has no application to an electric street-railroad, and therefore is irrelevant in a trial of an action against the latter.</p> <p>3. Except as indicated in the first headnote, there was no material error at the trial.</p>

<p>1. In an action brought by the father of a minor son capable of rendering service, for the negligent homicide of the latter, he is entitled in a proper case to recover per quod servitium amisit.</p> <p>2. While to recover it is necessary to show both the negligent homicide and loss of service, the latter, being the source of damage as to the father, is the gravamen or gist of the action, and the rights of the parties are to be established by the law applicable under such circumstances in the relation of master and servant.</p> <p>3. The master has a property right in the services of his servant, and a loss of service is in legal effect a damage to his personal estate ; and the law limiting the time in which actions to recover for injuries to personalty may be brought, limits the right of action in such a case.</p>

<p>1. Where a parent, entitled to bring an action of tort for the homicide of a son, dies without having instituted suit, the right of action does not survive to the administrator of such parent.</p> <p>2. The act of the General Assembly approved October 22, 1889 (Acts 1889, p. 73), which is entitled : “An act to amend section 2967 of the Code of Georgia, so as to prevent abatement of actions ex delicto in certain cases, where either of the parties may die pendente lite,” saves pending actions-only, and for that purpose its provisions are within the scope of its title; but in so far as it purports to create in the personal representatives of a deceased person a cause of action, it contravenes that clause of the constitution of this State which prohibits the passage of an act which refers in its title to more than one subject-matter, or which contains matter different from that expressed in the title.</p> <p>’3. In the present case the action was brought by the administrator of the deceased parent for damages resulting from the homicide of a minor child, and was therefore properly dismissed on demurrer.</p>

Action for damages. Before Judge Hutchins. Clarke superior court. January 14, 1896.

<p>Certiorari. Before Judge Hutchins. Gwinnett superior-court. March term, 1896.</p>

<p>Traverse of sheriff’s return. Before Judge Hutchins. Gwinnett superior court. March term, 1896.</p>

<p>Practice in Supreme Court.</p>

Equitable petition. Before Judge Hutchins. Gwinnett county. July 25, 1896. Medlock filed in the superior court of Gwinnett county his petition against Moore, Marsh & Company, to enjoin the further prosecution by them of an action against him then pending iir. the city court of that county.

<p>Garnishment — certiorari. Before Judge Hutchins. Oconee superior court. July 31, 1896.</p>

<p>1. The maker of a negotiable promissory note, pays the amount due thereon to any person other than the holder at his own risk, and a defense to an action on such note setting up payment to one authorized by the holder to collect for him casts upon the defendant the burden of showing not only that he has paid the money, but that he has made'payment to a person authorized by the holder to receive it, or else that it actually reached the holder’s hands.</p> <p>2. In the present case there was no evidence from which the jury could rightfully infer that the person to whom the alleged payment was made, was the agent of the holder, or was authorized generally or specially to receive for it payment of the note, or that the holder ever received the money; and consequently, a verdict finding in favor of the defendant upon his plea of payment was contrary to law, and should have been set aside.</p>

<p>Rule. Before Judge Kimsey. Rabun superior court. February term, 1896.</p>

Certiorari. Before Judge Kimsey. Habersham superior court. March term, 1896. . In justice’s court the plaintiff obtained a verdict against the railroad company for the value of a cow alleged to have been killed by the defendant. Defendant’s certiorari was overruled, and exception was taken.

Equitable petition. . Before Judge Kimsey. White superior court. April téfm, 1896.' In January, 1889, M. H. Gilstrap and S. G. Martin bought from A. W. Smith a piece of land for the agreed price of $500, for which they gave notes on which J, O. Martin was security. The two first named divided the land between themselves, and Gilstrap paid to Smith $10 in money to be credited on the-notes.

<p>Ejectment. Before Judge Kimsey. Dawson superior court. February term, 1896.</p>

<p>Complaint on note. Before Judge Janes. Haralson superior court. January term, 1896.</p>

<p>Habeas corpus — certiorari. Before Judge Janes. Paulding superior court. January term, 1896.</p>

<p>Complaint on notes. Before Judge Janes. Polk superior court. February term, 1896.</p>

<p>Complaint on note. Before Judge Janes. Polk superior court. February term, 1896.</p>

<p>Appeal. Before Judge Janes. Haralson superior court. July term, 1896.</p>

<p>1. This being a contest between two brothers for letters of administration upon the estate of their deceased father, tried in the superior court upon an appeal from the court of ordinary, and the evidence being such as to authorize a finding in favor of either, the selection to be made was purely a matter for determination by the jury.</p> <p>2. There was no error in rejecting evidence, nor any abuse of discretion in denying a new trial.</p>

<p>Equitable petition. Before Judge Harris. Troup superior court. May term, 1896.</p>

<p>Petition for injunction, etc. Before Judge Harris. Troup county. November 20, 1896.</p>

Action for damages. Before Judge Beck. Spalding supe-: rior court. January term, 1896.

<p>Habeas corpus. Before Judge Felton. Monroe county. May 22, 1896:</p>

<p>1. Although a promissory note recites a consideration, it is the right of the maker, when sued thereon by the payee, to prove by parol that there was really no consideration at all, and any facts pertinent to an issue thus arising are relevant.</p> <p>2. The defendant in a distress warrant may, in his counter-affidavit, not only deny any indebtedness for rent or otherwise, but may also set forth special matters of defense showing, by way of amplification and explanation, how and why the general denial is true. With or without such special allegations, it is the right of the defendant to support his defense by competent evidence.</p> <p>3. The defendant in such a case is not, however, entitled to have another person made a party and invoke in his behalf equitable relief as to matters in which the defendant is in no way concerned.</p>

<p>1. When there is nothing of record to put a bona fide purchaser of land upon notice that it had been bought by his vendor with the proceeds of a homestead set apart to the latter upon his own application, and it appears that, upon inquiry made by the purchaser of the seller, who was in possession, he stated that he had formerly taken a homestead but that it did not amount to anything and never did him any good, and also that the homestead so taken did not in any way affect the land then being sold, that it was his own land and the title was all right, such purchaser, as to the beneficiaries of the original homestead, should be treated as an innocent purchaser without knowledge of the homestead character attaching to the property.</p> <p>2. If, under the evidence appearing in the record, the land in controversy could be regarded as property purchased with the proceeds of a home- • stead, which is by no means clear, the evidence demanded a finding that the defendant was an innocent purchaser without notice ; and the verdict being to the contrary, it ought to be set aside.</p>

<p>Equitable petition. Before Judge Hart. Hancock superior court. August term, 1895.</p> <p>Samuel Evans brought his petition against Della C. Courson, her husband John M. Courson, her father W. L. Coleman, H. J. Quinn, and Sibley, Nixon & Co., alleging as follows: On August 18, 1893, plaintiff obtained judgment against Mrs. Courson for $1,622.28 principal, $225.74 interest, and costs. When he received her notes in the suit on which the judgment was obtained and upon which the suit was brought, she had sufficient property to pay his claim, which was liable for the debt and to levy under his fi. fa. Beside other property, she owned a house and lot near Devereaux, where she resided and still resides, which is worth $3,000 and was reasonably worth that sum at any time within the last three years, if faMy and publicly sold. Prior to his suit, Sibley, Nixon & Co. had obtained judgment against Mrs. Courson for $774. While their suit against her was pending, and before either of the judgments was rendered, her husband, in her name, gave to Coleman a mortgage on the house and lot, purporting to be for $1,000 but really for little or no consideration except as hereafter alleged. About the same time she made or pretended to make to R. L. Courson, her husband’s brother, another mortgage on the house and lot for $700, and still another to Quinn upon her other lands for $1,000. None of said mortgages were ever really signed, sealed and delivered to the mortgagees, but John M. Courson signed her name thereto and caused them to be recorded to deter her creditors from levying on the land, and in the event of levy, to enable some one for her to buy the property at less than its value. In 1893 the fi. fa. of Sibley, Nixon & Co. was levied on said house and lot, and the same, after legal advertisement, was sold on the first Tuesday in March, 1893, to Coleman for $200, he having caused to be made at the sale the announcement that said sale was made subject to his mortgage, and John M. Courson, or some one for him, announced that it was subject to the mortgage of R. L. Courson, both of the mortgages being prior in date to the judgment of Sibley, Nixon & Co. At this time various creditors of Mrs. Courson held justice court fi. fas. against her, which were liens on the property prior to the judgment of Sibley, Nixon & Co., and which were paid out of said sum bid at the sale, leaving nothing but cost paid on the last named judgment. On November 9, 1893, plaintiff caused his fi. fa. to be levied on the lands mortgaged to. Quinn (being 166 acres described), and after legal advertisement the same were sold by the sheriff and brought $574.00 which, after paying costs and fees, was credited on the fi. fa. of Sibley, Nixon.& Co. Plaintiff charges that Coleman and John M. Courson have damaged him $574.00 by preventing the sale of the house and lot for its value, by said announcement at the first sale, and by the making and recording of said mortgages. He prays, that the deed from the sheriff to Coleman, as well as the mortgages, may be canceled as fraudulent and void, and that, upon payment by plaintiff to Coleman of $200 which is hereby tendered, a resale of the house and lot he decreed in payment of his execution.</p> <p>Coleman answered, denying that the mortgage to him was for little or no consideration, and claiming that the consideration was to secure him a debt for $1,000 which was actually and bona fide due him by Mrs. Courson at the time of the execution of the mortgage. He further denied that the mortgage to him was never delivered, and alleged that it was executed and handed to the clerk for record by Mrs. Courson and notice "given to him of the fact, when he accepted the same and ratified all that had been done in reference to its execution and record. He denied that the purpose of the mortgage was to deter creditors from suing their claims and levying on the land, or to make her convey the property for less than its value. He admitted the levy and sale under the fi. fa. of Sibley, Nixon & Co., and the making of the announcement at the sale as alleged. The $200 which he paid, added to the sum secured by the two mortgages, was a fair price for the property. His only purpose in buying the same was to save the debt due him by Mrs. Courson. The mortgage was accepted and notice of the same given at the sale in the utmost good faith. He denied that he had practiced a fraud on any one, or that he was in any combination, plan or scheme to act so as to prevent the property from bringing its fair value at the sale.</p> <p>Mrs. Courson answered, admitting the indebtedness to plaintiff and her ownership of enough property, at the time the debt was made and the judgment rendered thereon, to have been amply sufficient to have paid it if she had not owed other people. The house and lot in Devereaux has never been worth $3,000 at any time within three years; said estimate is very extravagant. The mortgages referred to were executed in good faith and founded upon a valid and perfect consideration. At various times she had procured money, merchandise and other goods of value from her father, and owed him an account for rent, in all amounting to at least $1,000. As she had been paid off by him her proportion of what he could give her as a present, these matters, by special understanding, stood on the footing of a valid debt by her to him. It was so understood by them both, and it was further agreed that she would execute proper security to him therefor. He had asked for such security prior to the execution of the mortgages, and the debts due by her to him were prior to any judgment against her, and, so far as her memory serves hex, were prior to axiy transactions with plaintiff. The mortgage to her father was sigxxed, sealed and delivered by her to him, and by him accepted as given by her, as a security for the debt in the terms of the former agreement, and in perfect good faith on the part of both of them, and not with any fraudulent purpose or any fraudulent combination. She was indebted to R. L. Courson, and likewise secured him by mortgage which was delivered to him for record. She denies any collusion or conspiracy with him or Coleman by having an announcement made at the time of the sale of the existence of said mortgages; but said announcement was authorized by the existing facts. The $200, added to the principal and interest due by her to her father and R. L. Courson, was a fair price for the property. She has in no way damaged the plaintiff; but after all her property was brought to sale under the various executions against her, there was not enough to pay what she owed. The answer of John M. Courson was to the like effect.</p> <p>The verdict was in favor of defendants, and plaintiff’s motion for a new trial was overruled. The motion alleges that the verdict is contrary to law and evidence, and especially in that it makes the mortgage of Coleman a prior lien to the judgment of Sibley, Nixon & Co., when that judgment was rendered and recorded and Coleman had notice of it before he received the mortgage or knew of its existence. The motion further alleges that the court erred -in refusing to give the following charges as requested: (a) “Delivery of the mortgage to the clerk for record was not delivery to the mortgagee, unless the clerk was the agent of the mortgagee to receive it; and if the jury believe from the evidence that the mortgagee received it afterwards, this delivery, if it was delivered, does not relate back to the date of signing. (b) If this transaction was consummated with intent to wrong creditors dealing with the debtor and did hurt them, it was fraudulent, (c) Where fraud is charged, the jury may consider the relation of the parties, and as evidence of fraud the mortgage of all of her property, and to do so in an unusual manner is a badge of fraud, (d) If these defendants fail to produce testimony to explain the transaction when the bona tides of the transaction is in issue, it is a badge of fraud.” Also, that the court erred in charging as shown in the opinion.</p> <p>On the trial H. J. Quinn testified, that in the spring of 1892 he worked for Dr. John Courson, and on the day the mortgage to Coleman was signed he also witnessed one to R. L. Courson. Dr. Courson gave him the mortgages to be recorded.. They were then taken back to Dr. Courson. The next day he came hack to town by Dr. Courson’s directions, and offered the Coleman mortgage to the mortgagee, who read it and handed it hack to witness, and said he did not want it, that Dr. Courson and his wife did not owe him anything. Witness took the mortgage back to Dr. Courson and never saw anything more of it, nor did he ever see the R. L. Courson mortgage after the day it was recorded and he returned it to Dr. Courson. The house and lot were worth $2,000 when sold by the sheriff to Coleman. R. H. Lewis testified, that when he took judgment in favor of Sibley, Nixon & Co. v. Mrs. Courson, the clerk told him of Dr. Courson having had the mortgage recorded. On the next day he saw Coleman and complained of the way Courson had acted, referring to the mortgages. Coleman denied having the mortgage, and witness went with him to the clerk to see it. After seeing it Coleman remarked that he reckoned the mortgage was to his son William. They went back and the clerk read it “ William L. Coleman, Sr.” Judge Coleman then said he was tired of the doctor using his name that way. The testimony of this witness supported the petition as to what the house brought at the sale of the property and the application of the proceeds to the executions therein stated. Quinn had told him there was no consideration for his mortgage. The clerk testified in part corroboration of Lewis, and further, that he asked Judge Coleman if he wanted to pay for the record of his mortgage, and he did not pay for it.</p> <p>Coleman testified that he took the mortgage to secure debts his daughter owed him ; part was for accounts at the store, some 'was money including $200 put in one of the places when it was sold to Dr. Courson, and part was for rent of another place at $160.00 a year. The amount of his bid, and the amount of his own mortgage and of the R. L. Courson mortgage, made a fair price for the place. The rent was three years rent of one place at $160.00 per year. He had no account of charges against Mrs. Courson except that made out and given to his counsel which had been lost, except some accounts at the store. He had no book of original entries with these charges in it. The rent was for three years before the mortgage was taken; was not certain what years they were; but the taking of the mortgage was an honest transaction; the amount and more was due him by Mrs. Courson; he had given her all he could in justice to his other children; had given them $2,000 each and some more than that. The note for $200 was paid at bank. Some of the accounts included in the mortgage were made in 1889 and 1890, but all before 1892. Mrs. Courson testified, that about April, 1892, she gave her father the note and mortgage, the consideration being part cash, part supplies furnished her; and no part of it had been paid. She had not seen the mortgage since executing it, and her father had said nothing to her about it. The indebtedness was created at different times; dates were not remembered. She declined to answer as to consideration, etc., of other mortgages. She did not know what became of the account, or who put the mortgage on' record, or whether her father refused to receive it.</p>

<p>1. The possession of land, acquired by a father under a conveyance made to, his infant daughter by her grandfather and delivered to such father, can never ripen into a title by prescription in favor of the latter as against . the grantee.</p> <p>2. In such a case, where the father, upon delivery to him of such deed, enters into possession of the premises thus conveyed, and after the majority of the grantee, retains such possession and conceals from the grantee the fact of the existence of the deed and exercises the rights of an owner by renting to her a portion of the land, and while in ignorance of her rights the grantee thus acknowledges or acquiesces in his apparent claim of ownership, the possession of the father, under such circumstances, will not support a claim of title by prescription so as to enable the father, or his executor, to recover against the grantee who takes possession of the land after acquiring knowledge of the existence of her right and title thereto. Such possession, so far as the same is adverse to the grantee, is a moral fraud as against the latter, and accordingly does not serve as the foundation of a prescription.</p> <p>3. Where a grandfather delivers to a father a deed conveying to the latter’s daughter (an infant of tender years), in consideration of love and affection, title to a tract of land, such delivery to and possession of the deed by the father is evidence of delivery to the infant. This is true although the deed does not purport on its face to be delivered, but, being signed and witnessed by two persons neither of whom was an officer, was afterward probated by one of the witnesses and duly recorded.</p> <p>4. A deed conveying “ the balance of the Robert Swilling tract of land lying on the waters of Reed creek, containing sixty-six acres, lying southwest from said James Reed, cornering on a post-oak adjoining John Crocker and Maulden, thence a straight line to a white oak down the waters of Reed creek,” is not, as matter of law, so wanting, vague and uncertain in matter of description as to be void and inadmissible as evidence of title. Whether from such a description, aided by other competent extrinsic evidence, the property intended to be conveyed could be identified, was a question of fact and properly submitted to the jury.</p> <p>5. There was no error in admitting testimony, and the verdict is supported by the evidence.</p>

<p>Certiorari. Before Judge Hutchins. Gwinnett superior court. March term, 1896.</p>

<p>Equitable petition. Before Judge Kimsey. Hall superior court. January term, 18.96.</p>

Injunction and receiver. Before Judge Kimsey. Hall county. April 1, 1896. Held: and were at the time of the assignment, by different creditors of the company, as collateral security.

<p>Petition for injunction. Before Judge Beck. Butts county. October 14, 1896.</p>

<p>Complaint. Before Judge Hart. Jasper superior court. September term, 1895.</p>

<p>Motion for new trial. Before Judge Hart. Baldwin superior court. January term, 1896.</p> <p>The judge’s certificate to the bill of exceptions in this case is not in the statutory form. It states: “The recitals of fact contained in the foregoing bill of exceptions is true and correct, in so far as the same purports to be a history of the case. That portion which refers to the brief of evidence is not approved, for the reason counsel disagreed-about the evidence, and owing to the lapse of time I was unable to recall the testimony, and accordingly dismissed the motion,” etc.</p> <p>The following appears from the record : The case was tried and a verdict rendered against the defendant at the July term, 1895; and on the same day, before the adjournment of the court, the defendant filed a motion for a new trial, which was approved by the court, and the court granted an order that the defendant be allowed thirty days within which to file a brief of evidence, and that the motion be heard at such time as the court might set. This order was granted July 18th. The bill of exceptions states: “ In compliance with the order of said court, movant prepared and filed a brief of all the oral and documentary evidence submitted on the trial of said cause, and the same was filed in the clerk’s office on August 16,1895.” On August 31, 1895, the judge ordered that the motion be heard at Irwinton, during the October term, 1895, of Wilkinson superior court. ■ At the time and place appointed by the order last mentioned, the judge passed an order stating: “ It being shown to the court that D. B. Sanford, Esq., the leading counsel for the movant, is ill and can not be present, it is ordered that the hearing of this motion stand continued, to be heard during the next January term of Baldwin superior court, 1896.” At the January term, 1896, of Baldwin superior court, the plaintiff moved to dismiss the motion for a new trial, on the grounds: (1) that no brief of evidence was filed according to law, in that the pretended brief filed was never submitted to the plaintiff for agreement, nor served, nor approved by the court before filing. (2) Said pretended brief is an incoherent, confused and utterly perverted and untrue statement of the evidence produced on the trial. The bill of exceptions states: Said motion for a new trial and the motion to dismiss the same came on to be heard before said court during said term, on Tuesday night, January - 21, 1896, when movant tendered to the court for its approval the brief of evidence which had been previously filed on August 16, 1895. Plaintiff and his counsel insisted upon his motion to dismiss the motion for a new trial, and argument was begun on the motion to dismiss, and pending the argument the plaintiff stated to the court that, before the filing of said brief of evidence, he had, in the office of D. B. Sanford, Esq., seen and examined said brief of evidence, although it had not been “ formerly ” tendered him for agreement, that he then and there declared to D. B. Sanford that he would not agree to it; and on the night of said hearing and pending said argument the plaintiff did then and there review his own testimony contained in said brief and correct the same by making erasures therein and by adding to the same what he insisted had been omitted, as will appear by inspection of said brief of evidence. And before any determination of the motion to dismiss had been made by the court, the plaintiff in person proposed to take all the papers in the case including the brief of testimony, prepare a brief of the evidence, submit it, and let the motion for a new trial be decided on that. This was assented to by the counsel on both sides, and the hearing postponed until Thursday night of January 23, 1896, on which night the plaintiff withdrew from the agreement just mentioned, and insisted upon his motion to dismiss the motion for a new trial, which, the court granted, over the objection of movant for a *new trial, and passed the following order: “ On motion of respondent, . . it is ordered that the motion be and is hereby dismissed, on the ground that no brief of evidence has been tendered said respondent or his attorneys in the time required by law, that said brief has not been agreed on, and counsel can not agree thereon, and the court does not remember the evidence in the case, owing to the lapse of time.”</p> <p>Error is assigned on this ruling, for the following reasons: (1) Because there was no consent or agreement between counsel as to the time of filing the brief of evidence, but the same was done by the order of the court, and time was not of the essence of the contract as claimed by the plaintiff. (2) Because said brief of evidence, before the filing thereof, was read and considered by the plaintiff, who instantly refused to agree to the same; and the court not having fixed a time of hearing the motion for a new trial, there was no other recourse for movant except to file the same as required in the court’s order of July 18, 1895. (3) Because the court, after the agreement between counsel on Tuesday night, January 21, 1896, which was made and had in the presence of the court, failed and refused to enforce the same at the instance of movant for a new trial. (4) Because the agreement aforesaid had at the instance of the plaintiff was a waiver on his part as to any irregularity or other objection that might be taken by him as to the filing of the agreement of counsel or the approval by the court' of the brief of evidence.</p>

<p>Action on contract. Before Judge Reese. Greene superior court. February term, 1896.</p>

<p>1. It is lawful to imprison at night, or at any other appropriate time, one who has been legally sentenced to labor upon public works.</p> <p>2. A municipal corporation may lawfully contract with the proper county authorities for the use of a cell or room in the county jail as a place for confining municipal prisoners, and their imprisonment therein is not rendered illegal merely because the sheriff or jailer locks the outside -door of the jail and keeps the key thereto, if in point of fact the marshal, he being the municipal officer having charge of such prisoners, can at all times readily obtain access to them, .and there is no real interference with this officer’s custody and control of their persons and movements.</p> <p>3. Where under such circumstances a person so imprisoned sues out a writ of habeas corpus against the sherifE, alleging that the latter is illegally restraining the petitioner of his liberty, and the respondent, without objection, sets up in his answer as cause for the imprisonment sentences imposed upon the petitioner by the municipal court, and the case is then tried upon the issues thus presented, it stands upon substantially the same footing as if the writ had been directed to the marshal, and the decision of it should turn upon the question whether or not he can, upon the facts proved, lawfully imprison the petitioner.</p> <p>4. A sentence imposed by a municipal court, and on certiorari affirmed by a judgment of the superior court, which is in turn affirmed by a judgment of the Supreme Court, is binding and conclusive upon the person sentenced, and, as to him, in effect lawful, whether it was so in the first instance or not. This is true though in the superior court the judgment of affirmance resulted from a dismissal of the certiorari, and in the Supreme Court a like judgment followed a dismissal of the writ of error, without a hearing of the case in either court upon its actual merits.</p> <p>5. Accordingly, where in a habeas corpus case of the nature above indicated the sheriff’s answer set up, and he duly proved, the existence of seven sentences of the municipal court, four of which were, for the reason stated in the last note, binding upon the petitioner, whether originally so or not; and it also appeared that these sentences had not been served out, it was error to discharge the prisoner, even if the three remaining sentences were unwarranted by law and void. Whether the sentences last referred to were or were not, in the present case, legal, is not now decided.</p> <p>6. The ordinary, by whom the habeas corpus case was tried, erred in his judgment, and the superior court on certiorari rightly so held.</p>

Complaint for land. Before Judge Hart. Jasper superior court. March term, 1896. On December 14, 1891, Mattie Lou Malone brought her action for land against Eden H. Kelly Jr.; her abstract of title being a deed dated Jan. 10, 1872, from Wm. Malone, “as agent of Cader Malone,” to John C. Kelly, to certain land, which included the land sued for; and a power of attorney, dated Dec. 28, 1869, from Cader Malone and Nancy A. Malone, his wife, to Wrn.

<p>Injunction and receiver. Before Judge Kimsey. Lumpkin county. January 9, 1897.</p>

<p>Certiorari. Before Judge Gober. Fannin superior court. May term, 1896.</p>

<p>Money rule. Before Judge Milner. Catoosa superior court. February term, 1896.</p>

<p>Action for damages. Before Judge Milner. Whitfield superior court. August 11, 1896.</p>

<p>Interpleader. Before Judge Hart. Putnam superior court. March term, 1896.</p>

<p>Complaint on note. Before Judge Hart. Baldwin superior court. January term, 1896.</p>

<p>Complaint on notes. Before Judge Hart. Laurens superior court. July term,. 1896.</p>

<p>1. A petition for certiorari -which is not sanctioned by the judge of the superior court is no part of the record in the case to which it relates, and can not be transmitted to this- court as such.</p> <p>2. A bill of exceptions which undertakes to bring to this court for review a refusal to sanction such a petition, and which does not in any manner set forth either the petition^ or its substance, can not be entertained. This is true although the bill of exceptions does purport to contain a direct narrative of what occurred in the justice’s court wherein the case was originally tried, and a recital of the errors alleged to have been therein committed, but nowhere alleges that the petition for certiorari presented to the judge set forth any statement of the facts upon which the assignments of error were based.</p>

<p>The act approved October 22, 1887, by its terms recognized the right of the solicitor-general to prosecute in the county court of Sumter county cases transferred to that court by the superior court of that county, and directed how that officer should dispose of fines, forfeitures and costs arising therefrom ; and under the provisions of that act, the solicitor-general of the Southwestern circuit has authority to appear and prosecute in such county court all cases which have been or may be transferred from , the superior court. Accordingly, there was no error committed by the court below in refusing to grant the injunction.</p>

Injunction. Before Judge Smith. Montgomery county. January 13, 1897.

<p>Where county funds are deposited in a bank and the bank fails, the county, in a contest over the distribution of the assets of the bank, is not entitled to a lien on these assets in preference to the individual depositors.</p>

Petition for quo warranto. Before Judge Sweat. Glynn county. February 4, 1897. Crovatt presented his petition praying for leave to file the same as information in the nature of a writ of quo warranto, claiming that in law he was the duly elected mayor of the city of Brunswick, and that Mason was illegally holding the office.

<p>Since the passage of the act approved December 17, 1894 (Civil Code, 225432, 5433), land held under bond for titles is not subject to execution sale as the property of the holder of the bond, until he is invested with the title; and therefore, where an execution against a holder of a bond for titles was levied upon the land held thereunder, without, a conveyance to him of the title, a sale of such land made in pursuance of such levy passed no title to the purchaser; but where the holder of such bond for titles had notice of such sale, and made no objection thereto, and.the obligor in the bond became the purchaser of the land levied upon, and the court, upon a rule to distribute the money arising from such sale, awarded the same to one to whom the unpaid notes for a balance due upon the purchase-money had been assigned (leaving still a balance due thereon), and thus did exact equity and justice in the case, the judgment could be upheld, if the pleadings had. so authorized, and the proper parties had been before the court. This, however, hot being true in the present case, direction is given that the same be remanded, with leave to appropriately amend the pleadings and to make the holder of the bond for titles and the purchaser at the sheriff’s sale parties; and upon this being done, it is further directed that the sheriff’s sale, if it should appear to have been in all respects fair and just, be confirmed, the bond for titles canceled, and the award of the money as already made stand affirmed. If otherwise as to such sale, the same may be decreed void, and a judgment rendered restoring all the parties to their original status. These directions are given in view of the peculiar facts of this case, and under the powers conferred upon this court by the Civil Code, 5498 (par. 2 ), 5586.</p>

Action for damages. Before Judge Milner. Gordon superior court. February term, 1896. Arnetis Harden sued the Southern Railway Company for $1,000 damages, alleging: On December 22, 1894, petitioner purchased frórn the defendant in Piedmont, Alabama, a ticket entitling her to be carried from that place to Reeves station, a point on the defendant’s line of road in Gordon county, Georgia.

<p>Equitable petition. Before Judge Milner. Bartow superior court.' July term, 1896.</p>

<p>Equitable petition. Before Judge Hart. Laurens superior court. July term, 1896.</p>

<p>Equitable petition. Before Judge Butt. Chattahoochee superior court. March term, 1896.</p>

<p>Garnishment and claim. Before J. M. McNeill, judge pro hac vice. City court of Columbus. April term, 1896.</p>

<p>1. A waiver of a homestead, and exemption right, even though such right be-inchoate only, is valid and will be binding upon the person making the-waiver when the right becomes complete.</p> <p>2. Such a waiver is, however, void if embraced in a promissory note infected with usury, and a surety thereon signing in ignorance of the usury will be discharged.</p> <p>3. In view of the undisputed facts, there was no error in the present case in. directing a verdict in the surety’s favor.</p>

<p>Equitable petition. Before Judge Butt. Marion superior court. April term, 1896.</p>

Equitable petition. Before Judge Butt. Muscogee superior court. May term, 1896. A demurrer to the petition of Mrs. Sallie Stone against William A. Nix was sustained, and the plaintiff excepted. She alleged that in March, 1880, she purchased of him 172 acres of land described, for the agreed price of $500, which she paid to him, and he executed to her his deed conveying the land to her. She rented the land to him, and he has possession thereof as her tenant.

<p>An execution issued by the comptroller-general against a tax-collector and his sureties, for money alleged in the execution to have been collected by the tax-collector and not accounted for, can not be arrested by an affidavit of illegality.</p>

<p>1. A judgment of the ordinary approving a return made by appraisers setting apart specified realty as a year’s support did not, as against third persons claiming title to the property, but who had not filed with the ordinary any objection to the allowance of such return, adjudicate that the title was in the estate of the applicant’s deceased husband.</p> <p>2. The mere fact that such third persons entered an appeal to the superior court from the ordinary’s judgment and afterwards voluntarily dismissed the appeal, did not render that judgment binding upon them. The appeal under such circumstances, the appellants never having been parties below, was a mere nullity, and the dismissal of it in the superior court in no way affected the question of title.</p> <p>3. Where pending such appeal a receiver was, upon an equitable petition filed by the widow against the appellants, appointed to take possession of the property, it was error, after and because of the dismissal of the appeal, to render in the equity case at its trial term a final decree in effect adjudging that the title to the property was in the estate of the intestate, and peremptorily directing the receiver to put the widow in possession and pay her the accrued rents, less the costs of the pending proceeding, the defendants having filed an answer setting up title in themselves, and being by such decree deprived of any hearing as to their alleged rights in the premises.</p> <p>4. While it would have been the right of the plaintiff to dismiss the equitable petition, she was certainly not entitled to any such decree as that above indicated.</p>

<p>Foreclosure of lien. Before Judge Butt. Muscogee superior court. May term, 1896.</p>

<p>A municipal corporation is not liable, in an action for false imprisonment, for damages alleged to have been occasioned to the plaintiff by reason of his imprisonment under a judgment rendered against him by a municipal court, for the violation of an ordinance; and this is true though such judgment may have been irregular, erroneous, or even void.</p>

<p>1. A deed executed November 29,1889, but not recorded till January 29, 1894, will be postponed to a deed from the same grantor to the same land, executed January 22, 1891, recorded February 3, 1891, and taken without notice of the former deed.</p> <p>2. A deed by a sheriff to a plaintiff in execution, made in pursuance of a sale by the former, at which he bid off the property for the latter under general instructions to do so unless the property brought the amount due upon the execution, is a nullity and passes no title.</p> <p>3. Where the holder of a security-deed to land, after obtaining a judgment upon the debt thereby secured, executed and had recorded a deed conveying the land to the debtor, for the sole purpose of having it levied upon and sold, and the sheriff thereupon made an abortive effort to sell as above indicated, the deed last mentioned should not be treated as having passed the title back to the debtor; for “ it was a mere escrow, except for the purpose of levy and sale.”</p> <p>4. The real contest in an action for the recovery of land being which of two security-deeds executed by a common grantor should prevail, and that relied upon by the defendants being entitled to the preference, a verdict in their favor was right; but it should not be held to operate as an estoppel upon the plaintiff, so as to prevent his paying off the defendants’ secured debt, and thus making his own security-deed effectual.</p>

<p>A parol promise to pay an existing debt of another who still remained bound, though such promise was made in consideration of an agreement by the debtor to sell goods belonging to him to the person making the promise, and in further consideration of an agreement by the creditor (he, however, having no lien upon the goods ) to “refrain from interfering with or preventing” such sale by “ endeavoring to secure or icollect” the amount due him by the debtor, is not binding, and can not be enforced. The fact that a portion of the goods was actually sold, delivered and paid for under and in pursuance of such an arrangement ■does not alter the rule above announced, nor render the person making the parol promise, and who bought directly from the debtor -the remainder of the goods, liable to the creditor for the price of the same.</p>

<p>Levy and claim. Before Judge Butt. Muscogee superior court. May term, 1896.</p>

<p>Action on bond. Before Judge Butt. Harris superior court. April term, 1896.</p>

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

<p>Appeal. Before Judge Butt. Talbot superior court. March term, 1896.</p>

<p>Where the plaintiff in an execution, issued upon the foreclosure of a chattel mortgage, caused it to be levied upon the mortgaged property, with no object in view but the collection of the execution, and under an honest belief that such property was subject thereto, he was not liable in damages for an alleged malicious abuse of this process, even if as matter of law, under the facts as they existed, such belief was not well founded, and it was also true that he caused the officer, in making the levy, to commit a trespass in order to obtain possession of the property, and was himself, both at and after the time of the levy, guilty of other unlawful acts in procuring the levy to be made and in seeking to render it effectual. If any liability was thus incurred, the remedy was not an action of the nature above indicated.</p>

Complaint. Before Judge Reid. City court of Atlanta. May term, 1896. George F. Lowe, suing for the use of the Lowry Banking Company, brought his action against the Seaboard & Roanoke R. R. Co. and the Raleigh & Gaston R. R. Co., lessees of the G., C. & N. Ry. Co., and against the G., C. & N. Ry.

<p>1. The mere fact that a house is let to and occupied by a lewd person, which, with the knowledge of the owner, is to be used by her for purposes of prostitution, does not of itself avoid a policy of insurance issued thereon in favor of the owner. The contract of insurance is not so connected with the contract of rental as to prevent, in case of loss, the maintenance of an action on the policy by the owner.</p> <p>2. The specific questions made in the record, other than as above ruled,, were examined and determined when this case was here upon a former-writ of error.</p> <p>3. The questions of law made in this case were of such character as to acquit-the defendant of bad faith in refusing to pay the loss within the time limited by law, and to the extent of the finding of attorney’s fees and damages the verdict is contrary to law ; and direction is therefore given that upon or before the entering of the remittitur the plaintiff shall write off the items allowed on that account in the finding by the jury, and that the verdict thereupon stand affirmed, the costs accrued since the verdict to be'taxed against the defendant in error.</p>

<p>1. The principles of law governing this case having been settled when it was here before ( 96 Get. 469 ), and the court having charged the jury in accordance therewith, and the jury having upon sufficient evidence rendered a verdict for the defendant, there is no legal reason why the verdict should be disturbed.</p> <p>2. Where a petition alleged that certain conveyances were made and executed by the petitioner, a married woman, as securities for the debt of her son, and that they were made in pursuance of a scheme suggested by the defendant for the purpose of evading the law prohibiting married women from becoming sureties, and were therefore void; and the evidence for the petitioner tended to show that such a scheme had been suggested by the defendant, while the evidence on the other side tended to show that the defendant had not suggested or participated in such a scheme, there was no error in restricting the jury, in passing upon the question of suretyship or no suret3'ship, to a consideration of the allegations made in the petition and of the evidence pro and con with reference to the same.</p>

<p>Action for damages. Before Judge Butt. Taylor superior court. April term, 1896.</p>

<p>Equitable petition — intervention. Before Judge Felton. Bibb superior court. April' term, 1896.</p>

<p>Levy and claim. Before Judge Boss. City court of Macon. June term, 1896.</p>

<p>1. Where a deed, executed as security for the payment of a promissory note, is assailed as usurious, the usury alleged to have been taken consisting of a certain bonus paid by the maker to. the payee of the note in excess of the lawful rate of interest, and a, third person to whom the note and security deed are transferred seeks to uphold the transaction by showing that such third person was the real lender, and that the payee of the note was a mere intermediary, the bonus exacted being by way of compensation to the latter and in no manner participated in by the former, the question of usury depends upon whether such third person was in fact the real lender; and upon this issue of fact, a recital in the conveyance by w'hich the security deed is assigned to such third person, to the effect that she was a purchaser of such note and security from the alleged intermediary, affords such evidence as would support a finding by a jury that her true relation to the transaction was that of purchaser of the note and deed from the nominal payee, and that the latter was the original lender ; so that as a consequence, the transaction resulting in the execution of the security deed was usurious.</p> <p>2. A grantee in a security deed tainted with usury, can not, as against the maker thereof, convey a good title even to a person who takes bona fide, before maturity, .for value, and without notice of the fact of usury.</p> <p>3. While the right to amend pleadings may, subject to such terms as the judge may properly impose, be exercised.at any stage of the case and even after the time when the jury has retired to make up their verdict, yet where an amendment to an answer setting up a new and distinct ground of defense is at such time merely filed and allowed, but never submitted to or acted upon by them, and no request to that effect is made, such amendment should not be considered in testing the legality or validity of the verdict and judgment.</p> <p>4. Though the application of the well-settled rule that the maker of a deed given to secure the payment of a promissory note tainted with usury is not, without paying or tendering the principal and lawful interest due thereon, entitled to an equitable decree for a cancellation of the deed, would have defeated the plaintiff in the present case, if the defendants had made the proper defense in due time, yet as this was not done and the cause was tried and determined exclusively upon another issue, the verdict and judgment, allowing the plaintiff the equitable relief prayed for, may lawfully stand.</p> <p>5. Taking into view the entire record, a result authorized by the pleadings and evidence as they stood when the verdict was returned was reached, and therefore no good reason for reversing the judgment below appears.</p>

<p>1. Where an endorser for value of a promissory note was properly sued as such, hut at the trial the plaintiff filed an amendment to his petition, which in effect alleged that the defendant was not liable as endorser but had in the first instance signed the note as a surety thereon, and a verdict was thereupon rendered in the plaintiff’s favor, it will not be set aside merely because of this unnecessary and inappropriate change in the plaintiff’s pleadings; the record disclosing beyond doubt that there was no meritorious defense of which the defendant, in either relation to the paper sued on, could have availed himself.</p> <p>2. Inasmuch, however, as the defendant had, in perfect strictness, a right to be sued and to have a judgment rendered against him in the exact capacity in which he actually contracted, direction is given that the declaration be restored to its original form by entering an order striking the amendment to the same.</p> <p>3. Except as to the matter dealt with above, no question of material consequence is presented for determination in the present case.</p>

<p>Motion for new trial. Before Judge Hart. Laurens superior court. January term, 1896.</p>

<p>Complaint on note. Before Judge Hart. Baldwin superior court. January term, 1896.</p>

<p>Levy and claim. Before Judge Sheffield. Early superior court. April term, 1896.</p>

<p>Petition for injunction, etc. Before Judge Felton. Bibb county. January 19, 1897.</p>

<p>1. Where in an equity cause the plaintiff was entitled to an allowance of counsel fees as expenses incurred by him in bringing a fund into court, and the court duly adjudged that a specified sum be paid to his attorneys of record for their services in this behalf, this court will not in any event reverse a judgment subsequently rendered, refusing an additional allowance of fees for such services to another attorney of the plaintiff, unless it plainly appears that the discretion of the court in rendering such judgment was abused.</p> <p>2. It does not, in the light of the present record, appear that the judgment now complained of was in any respect erroneous.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. April term, 1896.</p>

<p>Equitable petition. Before Judge Butt. Muscogee superior court. May term, 1896.</p>

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

<p>Complaint on bonds. Before Judge Ross. City court of Macon. March term, 1896.</p>

Action for damages. Before Judge Norwood. City court of Savannah. May term, 1896! A general demurrer to the petition of Chaney against the railway company was overruled, and defendant excepted. Plaintiff alleged, that on or about January 8, 1895, he was in the employment of the company as a laborer, and as such was generally employed in working in its roundhouse in Savannah.

Mandamus. Before Judge Fite. Bartow county. January 13, 1897. Mr. and Mrs. John M. Purse, citizens of Cartersville, had three daughters attending one of the public schools of that city.

<p>The item in the words below quoted, occurring in section 529 of the Code of 1882, fixing county charges for licenses to sell spirituous liquors, viz. : “To retail spirituous liquors, $25.00,” and the provisions of sections 1419 and 1422 of that Code, even when construed all together, can not be regarded as constituting, within the meaning of the constitutional provision below mentioned, a “general law” the existence of which would render a special act prescribing the method of granting such licenses in a given county, imposing upon applicants for the same conditions not embraced in the second of the above cited sections, and fixing the license fee at a sum other than $25.00, violative of that clause of the constitution of this State which declares that “ no special law shall be enacted in any case for which provision has been made by an existing general law.”</p> <p>Simmons, C. J., dissenting.</p>

<p>1. Authority to mortgage “a part or the whole of its entire property and franchise” does not empower a railroad company to mortgage its “income, rents and profits.”</p> <p>2. Where the charter of a railroad company in express terms defines and limits its power to mortgage, a general provision in a preceding section of the charter authorizing the company to build a railroad "and the same to use, equip, and enjoy all the rights, privileges and immunities granted to” another named railroad company, does not confer upon the former company the mortgaging power of the latter under its charter.</p> <p>3. Section 1689 (i) of the Code of 1882, which confers upon any railroad company incorporated under the general law, of which this section is a part, power to mortgage its “railroad-track, depots, grounds, rights, privileges, franchises, immunities, machine-houses, rolling-stock, furniture, tools, implements, appendages and appurtenances, used in connection with such railroad or railroads, in any manner then belonging to said company, or which shall thereafter belong to it,” gives no power to mortgage income, because the mortgaging power expressed in the language of this section applies only to specified kinds of property, not including income, in possession when the mortgage is executed, and to like kinds of property to be thereafter acquired.</p> <p>4. It results from the foregoing that the mortgaging power of the Georgia Southern & Florida Railroad Company, whether derivable from its special charter or from the general law for the incorporation of railroads, did not include authority to mortgage its income ; and though it executed a mortgage purporting to cover the same, and this mortgage was foreclosed accordingly, its lien did not, as to thiid persons not bound by the judgment of foreclosure, attach to such income.</p> <p>5. Under the special facts of this case, the present intervention, growing out of the main equitable proceeding in consequence of which the property of this railroad company was brought into court for administration, should not be held tobe a “traders’ bill” against that company; and the rights of the parties now before the court are to be determined just as if this was an ordinary contest over a fund in court between a mortgagee whose mortgage had been foreclosed and a judgment creditor of the mortgagor.</p> <p>6. This being the nature of the case, the trial judge rightly held that the judgment creditor was entitled to preference, he having a lien attaching to the fund in controversy, and the contestant’s right thereto depending upon the alleged priority of a mortgage which, relatively to this judgment creditor, had no lien upon such fund.</p> <p>7. Upon the theory that the mortgages dealt with in the case of Green v. Coast Line Railroad Co., 97 Ga. 15, had no lien upon the income of that company because of a want of authority on its part to mortgage income, the present decision and the decision in that case are in complete accord. In so far as the decision in that case lays down the doctrine that, even if the mortgage did cover income, the lien of the judgment creditor was nevertheless entitled to priority, it is not applicable to the case now in hand.</p>

Levy and claim. Before Judge Kimsey. Hall superior court. January term, 1896. An execution in favor of Mack Stadler & Co. against G. C. Carter, from a judgment of July 27, 1885, which had been kept alive by proper entries, was levied, June 3, 1895, upon two adjoining houses and lots in Belton, to which a claim was interposed by A. D. Dunagan, as next friend and agent of three named minor children of the defendant in execution.

Action of libel. Before Leon A. Wilson, judge pro hac vice. Clinch superior court. April term, 1896.

<p>1. A transcript of a document, introduced in evidence but not incorporated in a brief thereof so as to become a part of the record, can not be properly transmitted to this court. In such case, such document can be considered here only in so far as its contents, or an abstract thereof, appear in the brief of evidence.</p> <p>2. Where an action was brought against one who had previously conveyed the land sued for to another to secure a debt, the secured creditor is not bound by a judgment rendered against the defendant in that action, and the same is not admissible in evidence against such creditor in a controversy between him and the party in whose favor such judgment was rendered.</p> <p>3. Where in the trial of a claim case it appeared that the defendant in execution had purchased the land in dispute at a sheriff’s sale of the same as the property of another party since deceased, unsigned written memoranda, made by the latter and which as a whole tended to show title to this land in the defendant in execution, were admissible for the plaintiff in execution. A return made by an executor, containing matter relevant to the issue on trial, was also admissible for the plaintiff in execution.</p> <p>4. A sheriff’s deed, purporting to convey a tract of land containing 580 acres and described as the “Home or Bermuda place” of the defendant in execution, less 70 acres set apart to him as a homestead, is not rendered inadmissible because the levy under which the land was sold , described it as “six hundred and fifty acres more or less, in said county, known as the Home place, as the property of defendant”; or because another levy on the execution described the property as containing 500 acres, more or less. The levies were not void for uncertainty, and the deed and the fi. fas. were admissible in evidence.</p> <p>5. As the evidence was conflicting as to the issues of fact upon which the case should have been determined, it was error to direct a verdict, but the same should have been submitted to the jury with proper instructions.</p>

Indictment for assault with intent to murder. Before Judge Sweat. Wayne superior court. November term, 1896. W. M. Wiggins was found guilty of shooting at another (J. M. Harper) not in his own defense or under other circumstances of justification. His motion for a new trial was overruled, and he excepted. The motion alleges, in addition to the general grounds: 1.

Indictment for misdemeanor. Before Judge Reese. Taliaferro superior court. February term, 1897. At the trial the husband of Mrs. Daniel (her name being signed as prosecutor to the indictment) testified: Defendant Frank Hackney rented land from my wife in 1895, the contract being made with her. Supplies necessary to make the crop were furnished him, including fertilizers worth $18.10, for which he did not pay. He remained on the place all the year, and made a crop.

Indictment for murder. Before Judge Candler. DeKalb superior court. February term, 1897. Terrell Hudson was indicted for the murder of Seab Malcomb, and was found guilty. His motion for a new trial was overruled, and he excepted. The testimony for the State shows, in brief, that Hudson and Malcomb were laborers upon a farm, and on the day of the homicide were engaged in cutting briers, etc., in the bottoms, working near each other.

<p>Indictment for cheating and swindling. Before Judge Beck. Butts superior court. February term, 1897.</p>

<p>Indictment for burglary. Before Judge Littlejohn. Sumter superior court. November term, 3896.</p>

<p>The charge being rape, and the evidence, if credible, showing conclusively that the carnal connection was complete and that the offense of rape was actually perpetrated, the court erred in charging that a verdict for assault with intent to rape could be found; and such a verdict, under the circumstances, was contrary to law.</p>

<p>1. Counsel for the accused in a felony case having agreed that a' jury he stricken as in a case of misdemeanor, and the State during the trial having offered as a witness a person who was a nephew of one of the jurors selected, but whose name was not in the list of State’s witnesses entered upon the indictment, there was no error in allowing such person to testify as a witness for the State, over an objection of the accused based upon the facts above recited, nor in refusing to declare a mistrial, although it affirmatively appeared that the accused and his counsel, at the time of the agreement as to the manner in which the jury was to be selected, were ignorant of the fact that such witness would be called.</p> <p>2. The verdict is supported by the evidence; and there were no errors committed by the. trial judge in admitting testimony.</p>

<p>Where on a writ of error to this court a conviction for a criminal offense was held to be unsupported by the' evidence and a new trial ordered, there was no error, when the case came on for a rehearing in the trial court, and before it was again submitted to a jury, in allowing the solicitor-general, over the objection of the accused, to enter a nolle prosequi.</p>

<p>Indictment for misdemeanor. Before Judge Atkinson. City court of Brunswick. February term, 1897.</p>

<p>Petition for injunction, etc. Before Judge Lumpkin. Fulton county. February 22, 1897.</p>

<p>1. An equitable petition against “ M. Teitlebaum, agent for Mrs. M. Teitlebaum,” the latter being the former’s wife, is in substance a proceeding against the husband himself; and consequently it was not erroneous to allow an amendment striking therefrom the words “agent for Mrs. M. Teitlebaum,” following the defendant’s name.</p> <p>2. Where at the interlocutory hearing of an application for injunction and receiver, embraced in an equitable petition filed under the “insolvent trader’s act,” it appeared that there were in existence, at the time the petition was filed, valid subsisting mortgages covering all of the property then belonging to the debtor, and that these mortgages were more than sufficient in amount to exhaust his assets, it was error to appoint a receiver to take charge of and administer the same.'</p> <p>3. If at such hearing, the mortgagees being parties to the proceeding, the complaining unsecured creditors made it appear that they were entitled to reclaim certain goods in the possession of the insolvent trader, because of fraud on his part in the purchase thereof, and it also appeared that, under a previous order passed by the judge, they had been allowed and had successfully exercised an opportunity to identify and point out these very goods, so that they could be and in fact were separated from other goods undoubtedly belonging to the debtor and covered by the mortgages above referred to, there should have been no receiver appointed except for the purpose of taking charge of the goods so identified and separated from the debtor’s common stock. Especially is this so where it was shown beyond dispute that the mortgagees were entirely solvent.</p>

<p>Indictment for cheating and swindling. Before Judge Berry. Criminal court of Atlanta. February term, 1897.</p>

<p>Indictment for adultery and fornication. Before Judge Felton. Crawford superior court. March term, 1897.</p> <p>The accused was ordinary of Crawford county. During 1896 he boarded at the house of Eubanks, and spent a while there every morning and every day after dinner. Eubanks’s daughter Charlotte, a girl of sixteen years, did defendant’s writing. One morning in July, after breakfast, in the absence of all the others of the family, he had carnal knowledge of Charlotte Eubanks. She testified that he forced her to consent to it; he got hold of her and made her consent. It was upon his lounge, he using force and she resisting him, trying to keep him off; but she had to consent — they were all away from home. He forced her to consent to it. He was on her before she consented, and had her clothes up. She resisted him all she could, and he overpowered her. She did not consent until he had overpowered her. It was against her will all the time. She never did want to do it, but had to consent. She screamed out and begged him to quit, but he forced her to consent to it. She was afraid to tell her mother about it, and did not tell her for about seven months. Defendant continued to live in the house, and witness continued to work for him and- he paid her wages for such work. When he caught her he had his pants unbuttoned and said he was going to do it. .She asked him to let her alone. He was married, and she was single; she had to consent before it was through with, because she never had any one to help her. It was by his force; she had to consent to it. Before she consented he was on her holding her, but he had not accomplished his purpose before she did consent.</p> <p>The motion for new trial alleges that the verdict, finding the accused guilty of adultery and fornication, is contrary to law and evidence; and that the court erred in the following charges to the jury:</p> <p>“In rape, in order to convict a defendant of rape, the State is required to show that the defendant had carnal knowledge of the party alleged to have been raped, not only forcibly, but against her will; because the statute says, that rape is the carnal knowledge of a female forcibly and against her will. You see you can not rape a woman by having carnal knowledge of her forcibly and with her consent. You catch the difference?" I presume the jury does. If a woman consents to the act of carnal knowledge, there can be no offense of rape committed.</p> <p>“Now, in adultery and fornication, there may be some degree of force used, depending upon the circumstances surrounding the transaction; as, for instance, it might be a matter for the consideration of the jury to determine, and you should take into consideration all the facts in the case for the purpose of determining whether or not, in this case, if you believe any carnal knowledge of Charlotte Eubanks was had at all by the defendant Mathews, whether or not that carnal knowledge was finally with her consent, or whether or not the degree of force and violence contemplated by the law to make out the charge of rape was actually used by the defendant in order to accomplish his purpose of carnal knowledge; provided you believe under the evidence he did have carnal knowledge of Charlotte Eubanks. You may look, and should look, to the circumstances of the case. .Determine what her age was, what were her surroundings, what her relation to him was, their relations not only before that time but subsequently to that time, in order to determine, if you should believe that he did have carnal knowledge of her, whether that carnal knowledge of her at that time was forcibly and against her will, or was with her consent though some degree of force was used by him.</p> <p>“I apprehend, in any act of sexual intercourse some degree of force may be necessary to accomplish the purpose of the act of sexual intercourse, but whether or not the degree of force and violence necessary to constitute the offense of actual rape itself, so as to show that the carnal knowledge was had forcibly and against her will, was a matter that you must look to the evidence in the case, all of the evidence in the case, to determine for yourselves what the truth of the case is. Look to the condition of the - woman, look to their relation after-wards, all those facts consider for the purpose of determining whether or not, in this case, if there was any carnal knowledge of Charlotte Eubanks had by the defendant at all, it was forcibly and against her will or whether or not it was with her consent, though force may have been- used to induce her finally to consent.</p> <p>“If you believe, that even though force was used to induce her to consent, that after the application of force she finally did consent to the act of sexual intercourse, and that at the time of that sexual intercourse the defendant did have carnal knowledge of her, but at that time not forcibly and against her will, you would not be -authorized to say that it was rape, but if he did have carnal knowledge of her and it was not forcibly and against her will but with her consent, even though some force was used to accomplish the act of sexual intercourse, then he was guilty of the offense of adultery and fornication.</p> <p>“Consider all the circumstances and consider whether or not the act of sexual intercourse can be completely had and performed unless the persons were consenting finally to the act; for if the actual mutual consent, the consent of the mind, is finally given, if the consent of the mind was finally given to the act, it would not be rape.</p> <p>“ Now look to the evidence and see whether or not, under the evidence, the testimony shows that finally she consented to the act, whatever the reasons were; see whether she finally consented. If her volition and her will was finally to consent, and she finally gave her consent to the act, then the crime of rape would not be committed. Though the act, on the other hand, was committed, if the will never did consent, if she never gave her consent, then, if the act of sexual intercourse was completely had, it would be the offense of rape; because, as I said, rape is the carnal knowledge of a woman forcibly and against her will.</p> <p>“It is not alone necessary in the offense of rape to constitute that offense that force may be used in the effort to accomplish the purpose, but you will observe that in the offense of rape the intercourse must be forcibly and against her will.”</p> <p>And in refusing to charge, as requested : “If the parties to this act both voluntarily consented to the act, then this would be the crime of adultery and fornication; but if the consent of this woman was obtained by physical force used by the defendant Mathews, then the case would be rape; and if the jury believe that her consent was forced, by physical force or violence on the part of the defendant, then the jury can not convict the defendant of the crime of adultery and fornication. If the sexual intercourse was against her will all through, though she yielded to the force and did not resist, it is rape.”</p>

<p>While under the “ general welfare clause,” usually found in the charters of towns and cities, such municipal corporations may, within the limits fixed by the constitution, incur a debt, and, in the manner pointed out by law, issue bonds for the purpose of raising money to be used in the erection of needed public improvements, yet where, by a valid constitutional amendment to its charter, authority is conferred upon a particular municipal corporation to issue bonds in a sum not exceeding ten thousand dollars, for the purpose of erecting a system of water-works, such amendment operates as a limitation upon the power ordinarily deducible from the “general welfare clause”; and such municipal corporation has no authority to issue bonds for that purpose in excess of the sum named in the amendment to its charter, even though, in connection therewith, it be proposed to erect an electric light plant. The erection of a system of water-works under the amended charter must be dealt with, and provided for, as an independent public improvement, and an issue of bonds to raise money for that purpose can not be included in a more extended scheme which contemplates raising a greater sum for other and additional purposes.</p>

<p>Certiorari. Before Judge Reese. Wilkes superior court. March 31, 1897.</p>

<p>1. A perfect and complete showing for a continuance, on the ground of the absence of a witness, ought not to have been disregarded, and the continuance denied, merely because it appeared by way of a counter-showing that the witness, a married woman, had, in effect, stated to another she knew nothing about the case, and had failed to communicate to her husband any knowledge on her part as to the facts involved.</p> <p>2. There was no error, in the trial of a criminal case, in refusing to admit evidence offered to show that “ defendant had an opportunity to escape jail in a general jail delivery, about one month before his trial, but did not avail himself of the opportunity to escape,” such evidence being of no probative value in shedding light upon the question of his guilt or innocence of the crime with which he stood charged.</p> <p>3. The charges complained of in the motion for a new trial were substantially correct.</p>

<p>1. The law confers upon the trial judges a discretion in granting or refusing new trials in cases where the verdict is alleged to be contrary to evidence or without evidence to support it, and imposes upon them the duty of exercising this discretion. This court will not allow a conviction of a crime founded upon weak, unsatisfactory and doubtful evidence to stand, when the record discloses strong reason for believing that the judge below was not himself fully satisfied with the finding of the jury.'</p> <p>2. The evidence in the present case was of the character above indicated; and that the trial judge naúst have been of this opinion is evidenced by the following language in the order overruling the motion for a new trial: “ There probably being sufficient evidence to authorize the verdict of the jury, the motion is overruled and a new trial refused.”</p>

<p>Inasmuch as there can be no doubt that the words “domestic animals,” as used in that clause of the constitution authorizing the General Assembly to “ impose a tax upon such domestic animals as, from their nature and habits, are destructive of other property,” were intended to refer to dogs, it follows inevitably that the dog is classed by the fundamental law of the State as “ a domestic animal ”; and therefore an act of cruelty to a dog is indictable under section 703 of the Penal Code.</p>

<p>1. When a guarantee has-taken from the guarantor no assurance of the guaranty by mortgage or otherwise, so as to create a lien in his favor upon the property of the latter, the mere existence of the contract of guaranty presents no obstacle, legal or equitable, to such disposition of his property as the guarantor may deem proper; and the fact that a guarantor may become insolvent or may waste his goods before there is a breach of the contract upon the part of the principal and before such time as the guarantor shall have become answerable upon his undertaking, affords no reason for the intervention of a court of equity, nor any reason for the grant of an injunction or the appointment of a receiver to seize and hold the guarantor’s estate. Equitable seizures of a debtor’s goods, except in cases especially authorized by statute, are not allowable at the instance of unsecured creditors.</p> <p>2. The assets of a corporation which has contracted as a guarantor are not liable to seizure, either at law or in equity, until after a breach by the principal of the guaranteed agreement; and neither the conveyance of its assets to third persons nor the misappropriation of its funds by its stockholders affords any ground for equitable interference at the suit of the guarantee, when it does not appear either that the principal is insolvent or that there has been any breach by him of the contract which was guaranteed. The mere possibility of a future breach of such contract, with a resulting liability against it as a guarantor, will not authorize the appointment of a receiver to take its assets out of the hands of its stockholders.</p>

<p>The verdict of a coroner’s jury, in this State, is advisory merely to the officers charged with the execution of the public law in cases of homicide, binds no one as a judgment, has no probative effect as evidence, can prejudice the right of no one, and is, therefore, not subject to be reviewed, set aside or quashed in the superior court, either at the instance of the person accused by it or of any other person.</p>

<p>Practice in Supreme Court.</p>

<p>1. The offense committed in assaulting another with a deadly weapon, in a manner naturally tending to cause death, can not he reduced below the grade of assault with intent to murder, when there is no provocation for the assault other than the use of opprobrious words or insulting language by the person assaulted to the person making the assault.</p> <p>2. There was no error in denying a new trial.</p>

Indictment for obstructing legal process. Before Judge Felton. Houston superior court. April term, 1897. Sistrunk, a constable, levied an execution in favor of Green against Aaron Mitchell, a brother of the defendant, upon. 1,000 feet of lumber, and made an entry of levy upon.the execution. ■ He did not remove the lumber but left it where he found it, upon the premises where Aaron Mitchell and the defendant lived, leaving it in charge of Aaron Mitchell.

<p>Indictment for larceny from the house. Before Judge Felton. Houston superior court. April term, 1897.</p>

<p>Indictment for assault with intent to murder. Before Judge Hart. Laurens superior court. January term, 1897.</p>

<p>Certiorari. Before Judge Littlejohn. Stewart superior court. April term, 1897.</p>

<p>The act of maliciously putting poison into a well, with the intent that the water thereof shall be drunk by another, and that he shall in this manner be killed, does not, without more, constitute the offense of an assault with intent to murder, when the person whose death was intended never in fact drank of the water after the poison had been introduced into the same.</p>

Complaint on account. Before Judge Sweat. Appling superior court. September term, 1896. Suit was brought upon an account for 5,000 needle-cards at three cents each.

<p>Petition for injunction. Before Judge Sweat. Ware county. February 9, 1897.</p>

<p>1. The rule laid down in section 8785 of the Civil Code, to the effect that in cases of fraud the period of limitation shall run only from the time of its discovery, does not operate in favor of a plaintiff who might, by the exercise of ordinary diligence, have made such discovery.</p> <p>2. The petition now under review makes a case where the exercise of such diligence would have resulted in discovering the defendant’s alleged fraud, if any there was, and states no sufficient or satisfactory reason or excuse for the plaintiff’s failure to use such diligence. Consequently there was no error in dismissing the action.</p>

<p>Motion to set aside judgment. Before Judge Reid. City court of Atlanta. November term, 1896.</p>

<p>1. Where a sheriff lawfully sold personalty under an execution, and upon the purchaser’s refusal to comply with the terms of the sale the property was resold at his risk and brought a lower price, any absolutely necessary and proper expense attendant upon the keeping and storage of the property pending the readvertisement and sale of the same may be treated as increasing the deficiency, for which the original purchaser was liable; and an action by the sheriff for the total deficiency, including this expense and the difference in price, is, when the sum of both items exceeds $100, maintainable in a court which, relatively to actions of this character, has jurisdiction in cases where the principal sum claimed, exclusive of interest, exceeds $100.</p> <p>2. The court erred in sustaining the demurrer to the plaintiff’s declaration.</p>

<p>1. A paper intended as a last will, but which was attested by only one witness, is void as a will and is not entitled to probate and record as such; and a judgment ordering its probate gives it no effect as a will in any proceeding where its validity may be called in question.</p> <p>2. Where certain heirs at law of an intestate agreed in writing to the probate as a will of such a paper, and under such agreement it was probated by the ordinary, and a named executor proceeded to dispose of the estate thereunder, such distribution would, because of the agreement, be binding on the heirs who were sui juris and consented thereto; but minor heirs of the intestate are in no way bound thereby.</p> <p>3. This court must deal with the judgment of the court below as it appears in the record. Where a certificate of the presiding judge is attached, that although the judgment rendered was one of nonsuit, yet he intended to direct a verdict, only the judgment as it appears in the record will he considered. In this case, however, either the direction of a verdict or the grant of a nonsuit was error.</p>

Complaint. Before Judge Sheffield. Terrell superior court. November term, 1896. On May 7, 1888, J. B. Perry sued J. B. Thornton upon a promissory note for $7,989.79 principal, with interest at eight per cent., and ten per cent, attorney’s fees, dated December 31, 1886, and due one day after date.

<p>1. Grounds of a motion for a new trial, in which exception is taken to the admission of evidence and which contain a statement of the evidence objected to, but which do not state the objection which was made and overruled, can not be considered in this court.</p> <p>2. The same is true as to grounds of a motion for a new trial which state the ground of objection to evidence offered and admitted, but which do not, except by reference to the brief of evidence, set out or identify the evidence to which such objection is intended to apply.</p> <p>3. The special questions submitted to the jury were framed in accordance with and authorized by the pleadings and evidence in the case.</p> <p>4. There was sufficient evidence to support the verdict.</p> <p>5. A motion for a new trial goes only to the verdict and reaches only such errors of law and fact as contributed to the rendition of the verdict; and therefore errors committed by the court in the rendition of a decree or judgment can not be reached by a motion for a new trial.</p> <p>6. Where a motion for a new trial is made, but before the determination thereof a final decree or judgment, either in term time or vacation, is entered on the verdict, of which judgment or decree either party complains, exception thereto should be taken in the manner prescribed by law ; and if such exception is not duly taken, error can not be assigned upon rulings of the court resulting in such erroneous decree or judgment, in a bill of exceptions afterwards sued out for the purpose of bringing under review the judgment rendered on the motion for a- new trial.</p>

Complaint. Before Judge Fish. Dooly superior court. September term, 1896. In May, 1890, Heard entered into a contract with the ordinary of Dooly county to build a court-house for the county for $25,000, the building to be completed March 1, 1891. He was paid all of that amount except $557.71, which was regained because of delay in the completion of the building, it being claimed on the part of the county that the deduction was authorized by the contract.

<p>Where, in order to avail himself of the right of action afforded by section 2317 et seep of the Civil Code, the shipper of goods over connecting lines of railway merely gives notice to the initial carrier that the goods shipped have not been delivered to the consignee in accordance with the contract of affreightment, claiming that such goods have never arrived at destination, and thereupon demands that such carrier shall trace the goods and “show delivery,” he can not, upon the failure of such carrier to comply . with this demand, recover of it, by virtue of the provisions of these sections, for injury done to the goods in the course of their transportation by the negligence of an intermediate carrier, if it appear that the goods were in fact delivered to the consignee prior to the service of such notice.</p>

<p>Equitable petition. Before Judge Smith. Pulaski superior court. August term, 1896.</p>

<p>1. Admissions of matters of fact in pleadings operate as estoppels only as between the parties to the cause in which they are made, and their privies ; and hence, while, in the trial of a cause between one of such parties and a third person who was not a party to the action in which such statements were made, such statements may, if otherwise relevant, be received as admissions upon the part of the party making them, it was error for the trial judge to charge the jury, in effect, that because they were made in the course of a judicial proceeding, they operated as estoppels upon the person making them, and that such party would not be heard as against such third person to aver anything to the contrary of what was contained in such admissions.</p> <p>2. Where one agrees to purchase from another the timber growing upon a tract of land, and in pursuance of such agreement, is permitted by the seller peaceably to enter and appropriate the timber thereon to his own use, he can not, in the absence of fraud or other circumstances justifying a repudiation by him of such agreement, after having so enjoyed the fruits of it, defeat an action for the recovery of the purchase-price by showing that at the time the agreement to purchase was made he already held paramount title to the land in question.</p> <p>3. Where one purchases a tract of land from another, taking a conveyance therefor, and subsequently sells it to a third person, the right of such seller to recover the purchase-price is in no manner dependent upon whether he in the first instance had paid for the land. The payment or non-payment by him makes a question between him and his vendor, and in no manner concerns the vendee whose, title is unaffected thereby. The measure of the recovery when the latter is sued for the purchase-price is dependent upon the agreement made between him and his vendor, and is not referable to the sum paid by such vendor in the first instance for the land.</p>

Attachments. Before Judge Smith. Irwin superior court. August 8, 1896.

<p>Levy and claim. Before Judge Smith. Pulaski superior court. August term, 1896.</p>

Levy and claim. Before Judge Smith. Telfair superior court. April term, 1896. To the levy of a mortgage fi. fa. in favor of C. B. Parker against W. O. Paxon upon a certain mule named Jack, a claim was interposed by B. F.- Mason. Upon the trial of the claim there was a verdict finding the property subject. The claimant moved for a new trial, which was denied, and he excepted.

<p>A promissory note executed in the name of a mercantile firm by one of its . members to pay his individual debt, and accepted by the payee with knowledge of the facts, is not the contract of the firm, and it is not primarily liable therefor. Such contract, however, when ratified and adopted by the other members, becomes inter partes a valid debt against the firm.. Whether such ratification has in fact been made is a question for the jury; and where the evidence upon this question is conflicting, and there is evidence sufficient to support the finding, a new trial will not be ordered.</p>

<p>1. Where one, assuming to act as trustee for an adult laboring under no disability, undertook to sell and convey in fee simple land in which the latter had a life-estate with remainder in fee to his children, and thereafter filed with the ordinary an application averring that his appointment and acts as trustee (specially mentioning the sale above referred to ) were unauthorized because the supposed cestui que trust was a person for whom no trust could be lawfully created, and praying for leave to make a final settlement with such person, and upon so doing,to be discharged from the trust; and where the children of this person, in a writing attached to the application, expressly ratified the applicant’s acts as trustee and consented to the granting of the order as prayed for, and after the same had been granted the so-called trustee did settle with the so-called cestui que trust and pay over to him certain cash, Held: (a) That as to one who upon the faith of this writing and the proceeding before the ordinary, of which it constituted a part, bona fide and for value purchased the land from the alleged trustee’s vendee, or his legal representative, the children who were adults when they signed this paper are estopped from questioning the validity of the sale made by the alleged trustee. (6) Under the facts recited, it would be a question for a jury whether or not the above would be applicable to a child who, though a minor when he signed such paper, allowed it to remain of record in the court of ordinary without challenge or attack until after the title had passed from the estate of such vendee to an innocent purchaser who bought upon the faith of a representation made by the seller that all of these children had in court signed the paper ratifying the original sale, this purchase occurring about two years after the signing of the paper and the proceeding before the ordinary, the particular child now referred to having been of age during the latter half of this period, and there being nothing in the record of that proceeding showing his minority. The determination of this question would depend on whether or not such child had, under all the circumstances, allowed an unreasonable time to elapse without disaffirming his action in signing the paper in question, (c) That a child who signed this paper while a minor of tender years, and who was still a minor when the purchaser last referred to acquired title, is, as to the latter’, not so estopped, either by reason of having signed the paper, or because of having delayed asserting his title until after the death of the life-tenant.</p> <p>2. It appearing that in a joint action for land brought by several persons one or more of them can not recover, there can be no recovery by any of the plaintiffs.</p> <p>3. There was no error in admitting evidence; and in view of the law by which this case upon its facts as they appeared at the trial is controlled, the charges complained of, even if not strictly correct and appropriate, were harmless to the losing parties. The verdict was right; but direction is given that neither it nor the judgment entered thereon shall be so construed as to prevent the two children last indicated from hereafter asserting whatever rights they, or either of them, may have, if any, to an undivided interest in the premises in dispute.</p>

<p>Action for breach of warranty. Before Judge Lumpkin. Fulton superior court. September term, 1896.</p> <p>The allegations were, that the bank was indebted to plaintiff $541.65, for that on November 3, 1879, it executed its deed conveying to Betsy O’Neal a described lot of land in the city of Atlanta, therein covenanting with her to warrant and forever defend unto her, her heirs, executors, administrators and assigns, against all persons. She thereupon entered into the lawful possession of said premises, and on May 28, 1889, conveyed the same for a valuable consideration to plaintiff, by virtue of which deed he entered into possession. Defendant has not warranted or defended the premises to plaintiff as by its covenant it was bound to do; but on the contrary Clifford L. Anderson, as administrator of the estate of John J. Bradley, lawfully claimed the premises by an older and better title than that of defendant, said title being vested in his intestate, and filed a suit to the fall term, 1893, of Fulton superior court, against plaintiff for the recovery of the premises in ejectment. Plaintiff was compelled to and did employ counsel, at a cost to him of $150, to examine into the merits of said controversy and to advise him as to the action to be taken, and he was thereupon advised by said counsel and believes that the title claimed by said administrator was paramount to that derived and held under defendant by virtue of the conveyance before mentioned. A compromise and settlement were then effected, whereby, in order to quiet plaintiff’s title and enable him to remain in possession and enjoyment of the premises, he was compelled to buy up said outstanding paramount title for $180, which he paid to said administrator on November 20, 1895. He was further compelled by the terms of said settlement to pay $10.65 costs. He has suffered serious loss and damage by loss of time due to the breach of the covenant by defendant, to the amount of $100, and will be compelled to expend $100 more for counsel fees in this litigation, made necessary by said breach and by the fact that the defendant has acted in bad faith in making deed to this property, the title to which it well knew was not vested in it, and has caused plaintiff unnecessary trouble and expense. The suit was brought on December 30, 1895.</p>

<p>1. An action upon a promissory note payable to the order of a named person, with the word “president” written after his name in the note, is maintainable by such person in his individual capacity; nor does it matter that his name in the declaration is followed by the words “president of,” and other words purporting to express the name of a corporation. Such an action is to be treated as one brought by the individual named.</p> <p>2. Where the petition in a civil action is signed*by an attorney at law, the person sued can not set up as a defense that the action was brought “without the authority or direction” of the person named as plaintiff. The manner in which the right or authority of an attorney at law to bring an action may be inquired into is pointed out in section 4423 of the Civil Code.</p> <p>3. Where an action is brought against endorsers of promissory notes, which are described in a paragraph of the plaintiff’s petition, and in answer to this paragraph the defendants allege that they endorsed notes of like amount, and add: “Whether or not the notes sued on are the ones which defendants endorsed, defendants do not know, and for that reason can not answer,” the allegations of such paragraph will be taken as true. There was no error in striking such an answer.</p>

<p>Equitable petition. Before Judge Sweat. Glynn superior court. August 27, 1896.</p>

<p>Levy and claim. Before Judge Sweat. Appling superior court. September term, 1896.</p>

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

Action on bond. Before Judge Sweat. Appling superior court. September term, 1896. Suit was brought by D. D. Hall, C. B. Hall, and Mrs. Hopps, as heirs at law of Mrs. Graham, upon the bond of R. E. Hall as her administrator. Upon an agreed statement of facts, the jury found for D. D. Hall $368.85 principal, $98.45 interest, for C. B. Hall $73.85 principal, $20.67 interest, and for Mrs. Hopps $68.75 principal, and $19.25 interest.

<p>1. In computing the number of days preceding the term of court in which a petition must be filed to make it returnable to that term, the Sundays intervening between the date of filing and the commencement of the term are to be counted; and this is true even if the twentieth or last day before the commencement of the term falls on Sunday.</p> <p>'2. Where a transferee of a bond for titles has taken a deed from the obligor of the bond, and brings a suit to recover the possession of the premises so conveyed to him, from one who acquired possession under the original obligee, he being dead at the time of the trial, the defendant does not fall within any of the classes of persons excluded as witnesses by the terms of paragraph 1 of section 5269 of the Civil Code.</p> <p>3. The possession of one who has been admitted under a bond for titles to land is not adverse to the obligor of the bond, or the representatives upon his estate, in the sense that such possession may be the foundation of a prescription; but where in pursuance of such a bond the obligee has been admitted into possession and the obligor dies, the possession so obtained is adverse in the sense that a sale of such property by the administrator upon the latter’s estate pending such possession is void, and one who takes a conveyance at such sale can not in his own name, by force of such conveyance, maintain an action against the person so holding possession.</p> <p>4. So far as the assignments of error upon rulings made in the court below are properly presented for consideration, there was no error of law committed, except upon the questions dealt with in the second and third headnotes.</p>

Equitable petition. Before Judge Lumpkin. Fulton superior court. September term, 1896. Harry Hanlein brought his petition for injunction to prevent the City of Atlanta from selling a strip of land belonging to him, under executions issued against the same on account of sidewalk and roadway paving.

<p>1. A court of equity will not grant relief against a judgment obtained at law, when the petition- for such relief is founded solely upon causes which might, by the exercise, of ordinary diligence have easily been ascertained and set up as a defense to the action in which such judgment was rendered.</p> <p>2. This case, upon its facts, falls within the principle above stated, and consequently the judge erred in granting the injunction.</p> <p>Simmons, C. J., and Little, J., concur in the first headnote,but dissent from the conclusion in the second.</p>

Ejectment. Before Judge Hart. DeKalb superior court. August term, 1896.

Complaint for land. Before Judge Hart. DeKalb superior court. August term, 1896. Kilgore sued Beauchamp to recover possession of nine acres of land. There was a verdict for the defendant, and plaintiff’s motion for a new trial was overruled. It appears that the land was sold in May, 1890, by the sheriff, under an execution for State and county taxes against the plaintiff, amounting to $65.39, besides costs.

<p>Action for damages. Before Judge Candler. Rockdale superior court. October term, 1896.</p>

<p>1. A plea to the effect that a suit upon a policy of insurance had been brought before the expiration of the time limited in the policy, within which, after receiving proofs of loss, the insurer was not bound to pay, is a plea in abatement, and should have been filed at the first term, and if filed later, should have been stricken on motion.</p> <p>2. Under the provisions of the code of this State, misrepresentations by the assured, whether fraudulent or otherwise, as to the value of the property insured, but which do not in any manner affect the risk, will not, except in case of “valued” policies, avoid a policy of insurance, and a plea setting up such misrepresentations as a defense against a suit instituted upon a policy, according to the terms of which the amount of recovery is open, after loss, to judicial inquiry, should be stricken on demurrer.</p> <p>3. The only errors of law committed on the trial, and which would have authorized.the grant of a new trial, related to matters growing out of pleas which the court erred in refusing to strike ; and inasmuch as, aside from such matters, no error of law was committed, and the evidence demanded a verdict for the plaintiff, the court erred in granting a new trial.</p>

<p>L A conveyance to one in trust for a woman and “the heirs of her body,” according to the provisions of the code, vests the absolute fee in her, and “the heirs of her body” take no interest under such a conveyance.</p> <p>2. Where an equitable petition was filed, by persons claiming under a voluntary deed, against the administrator of a deceased person therein named as grantee and also against a judgment creditor of such deceased person and against the administrator of the deceased grantor, for the sole purpose of reforming the deed so as to make the same declare and define the alleged interests of the plaintiffs in the land in such deed described, the petition in no manner seeking to affect the grantor’s estate, that estate had no interest in the litigation and the administrator of the deceased grantor no concern therein; and consequently it was error, upon a demurrer filed by him alone, to dismiss the plaintiffs’ action.</p> <p>3. Upon the hearing of a demurrer to a petition in equity, the court has no power to look beyond the allegations of the petition, or to consider the answer, in order to determine whether a cause of action is stated in the petition.</p>

Action for damages. Before Judge Callaway. Richmond superior court. October term, 1896. To the petition of Charles F. Lombard the City Council of Augusta demurred generally at the appearance term. At a subsequent term the demurrer came on to be heard, and the defendant offered to amend its demurrer by demurring specially on grounds hereafter set out. The court overruled both demurrers, and the defendant excepted.

<p>An act of the General Assembly of Georgia, which establishes jurisdiction of suits against railroad companies, and prescribes that suits for damages for injuries to person or property shall be brought in the county in which the_cause of action originated, if the company has an agent in such county; if not, then in the county of the residence of the company, refers to causes of action originating in the counties of this State, and does not apply to causes of action originating outside the limits of the State. As to the latter, the law in force at the time of the passage of the act is not affected by its terms.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. July term, 1896.</p> <p>Harvey sued Pullman’s Palace Car Company for $185 as the value of a diamond scárf-pin which he claimed to have lost while a passenger in its sleeping-car, on account of its negligence. The defendant demurred to the petition, and the demurrer was overruled. The plaintiff obtained a verdict for the amount sued for, and the company’s motion for a new trial was overruled. It excepted to each of the rulings stated.</p> <p>The declaration alleges, that on January 13, 1895, plaintiff entered into a contract with defendant, whereby it agreed to furnish him with accommodation in its sleeping-car Tourist from Savannah to Way cross; that he paid the fare charged for such accommodation, and by said contract defendant undertook to use reasonable and proper diligence in guarding and protecting him and his property from loss by theft while he slept, during usual hours of sleep, in a berth assigned to him on that car; that on going to bed in said berth he undressed and placed his wearing-apparel in that part of the berth provided for such purpose, including his necktie or scarf containing the pin, and while he was asleep during the night, some person unknown to him stole the pin from the scarf; that defendant did not use due care and diligence by its agents and servants employed on and in charge of the car, in watching and guarding him and his property while he was asleep, and so carelessly and negligently maintained such watch and guard that by and through its negligence his diamond pin was stolen and wholly lost to him, to his damage $185.</p> <p>The grounds of demurrer were, that no cause of action is alleged, and that the allegations of negligence are too vague and uncertain and fail to show any act which constituted negligence.</p> <p>The testimony was conflicting. Plaintiff testified positively to the loss of the pin while he was asleep upon the car, and that it was in the scarf when he went to bed, which scarf he placed in the rack inside of the berth. He could not swear that the scarf did not fall to the floor, but when he awoke in the morning the scarf was at the place where he put it before going to sleep, with the pin gone therefrom. He paid $185 for it and had owned it about twelve months. He admitted taking two small drinks of cocktail on that night. Defendant introduced testimony to show’, that plaintiff probably did not have the pin when he came into the car, that a sufficient watch over the car was kept by the porter and conductor thereof, and that plaintiff and another passenger (to whom plaintiff lent $2.00 to pay for a berth) drank a half-pint of cocktail while upon the car. During the night the porter went out of the car and stood on the steps of it while it was at a station for a few minutes, but everybody in the car at that time seemed to him to be asleep.</p> <p>The motion for a new trial alleges, in addition to the general grounds, that the court erred in refusing to give the following charges as requested.</p> <p>“The ordinary diligence which the defendant was required to exercise in caring for the plaintiff Harvey and his property, is that care which every prudent man takes of his own property of a similar nature. If the defendant company did exercise this ordinary care and diligence, then plaintiff can not recover, even if you should find that he has proven that his diamond pin was lost while he was an occupant of the sleeping-car. Whether or not this pin was lost on the sleeping-car is, of course, a question for you to determine, and the court expresses no opinion on this point. Sleeping-car companies do not occupy the same relation to occupants of its cars as a railroad company does to its passengers; it is not bound to exercise extraordinary care and diligence. The accommodation offered implies a certain degree of privacy for the passenger upon his retirement to rest. The defendant company does not contract to keep espionage and watch from theft by passengers on its cars. One who avails himself of the comfort afforded in such cars does so with the full knowledge of the fact that others, whose character the company can not possibly know, may become fellow-travelers with himself, and that the arrangements of the car into berths and sleeping-chairs is such that he may necessarily, while asleep, be subject to easy approach by any dishonest traveler in the same car. The risk of loss from such persons he assumes as an incident of his circumstances, and the company can only be made responsible by evidence of its neglect to keep that reasonable and ordinary guard and care over him.</p> <p>“ Proof of mere loss will not place the burden upon the defendant company, but the plaintiff must prove negligence on the part of the defendant, which occasioned the loss of the property, and must show that by reason of such negligence the loss occurred.</p> <p>“The degree of care and the kind of watch which this defendant was required to exercise towards the plaintiff and his property while he was upon its car depends upon the contract entered into between the plaintiff and the defendant. You •can not go outside of this contract to determine what manner ■of watch and guard was to be kept over the plaintiff and his property; only ordinary and reasonable care and diligence is required of the defendant, and if you find that the defendant exercised ordinary and reasonable care and diligence towards the plaintiff and kept that guard and watch over him and’ his effects which it contracted to do, then your verdict must be for the defendant, for, in that case, the defendant, the Pullman Palace Car Company, would not be liable.</p> <p>"When this defendant company shows that it has exercised, ordinary and reasonable care and diligence in watching the plaintiff and guarding his effects, then the burden is upon the plaintiff to show that the alleged loss, if you find there was a loss, was caused by the negligence of the defendant company, and until it makes satisfactory proof of this, you would not be warranted in finding for the plaintiff and against the defendant sleeping-car company.”</p> <p>Also, in giving the following charges: “A railroad company or a common carrier is bound to extraordinary diligence as to passengers and property, whereas the Pullman Palace Car Company, not being a common carrier, is bound to exercise ordinary diligence — sufficient to protect the property of its passengers; and on that point I charge you in the language of the Supreme Court of Georgia: ‘ Relatively to a passenger occupying a berth in a sleeping-car, for which he has paid the customary fare, a sleeping-car company is under the duty of maintaining such watch and guard while the passenger is sleeping as may be reasonably necessary to secure the safety of such money, jewels and baggage as he may properly carry on his person or have in his possession while traveling in the car; and if, while he is asleep, such property is taken from his possession, the burden is upon the company of showing the loss did not occur because of a failure upon the part of its employees to discharge this duty.’ If you find, therefore, that this pin was lost on board of that car, then it becomes the duty of the Pullman Company to exonerate itself by showing that it was not through the negligence of its employees.” The objection taken to this instruction is, that it does not clearly define the degree of diligence required of defendant, and in fact requires more than ordinary diligence; and that it places upon defendant the burden, after proof of loss, of showing .that the loss did not occur because of the failure of its employees to discharge their duty, and that the loss did not occur through their negligence.</p> <p>And in charging as follows: “That would bring you to consider the facts in connection with the undressing of the plaintiff — whether he put his pin in a proper place, and if he did not put it in a proper place, whether he contributed to the loss himself; to illustrate what I mean: If he had taken off his four-in-hand tie with the pin in it, and put it on one of the seats and gone to bed in his sleeper, he would be contributing to the loss, and if it had been lost he could not recover under those circumstances.” It is objected that the illustration improperly limited what would be contributory negligence by plaintiff, and that such charge would seem to indicate that any lesser negligence than that shown by the illustration so given would not defeat a recovery; the negligence so illustrated amounting to gross negligence.</p> <p>Also, in ruling out the following testimony of plaintiff: “ I intended to go to Valdosta the day before, but I had some business so that I could not go. Afterwards I intended to go on the seven o’clock train on the evening of the 12th. I left on the morning of the 13th. I had a business matter to attend to, which prevented my going at six or seven o’clock on the evening of the 12th. From then to the morning of the 13th I had no personal encounter; there was a matter of difference between a party and myself; I do not know that it is necessary to say with whom; I did not have a personal encounter at all, or any harsh words indulged in. The matter of difference between myself and a party was about seven o’clock on the evening of the 12th.” And in refusing to allow the defendant’s counsel to ask the plaintiff if he was not trying to check a lady’s trunk on the night of the 12th, or early on the morning of the 13th. And in refusing to allow the counsel for the defendant to ask the plaintiff if he did not come very near to being arrested that night, or was not arrested, or about to be arrested that night; and further, whether or not he was trying to leave on the seven o’clock train on the evening of the 12th, or on the train on January 13th, about one o’clock, with a married lady of Savannah; defendant’s counsel explaining that the purpose of this testimony was to show the condition of the plaintiff during the 12th of January and early on the morning of January 13th, and that he was in such a condition on account of this that he would be excited, and the jury should consider this in determining what degree of credit they would attach to the plaintiff’s evidence, as he might very easily be mistaken under these circumstances in his belief that his pin was in his cravat when he retired on board of the Pullman car on January 12th or 13th.</p>

Complaint on note. Before Judge Norwood. City court of Savannah. November term, 1896. On January 20, 1896, suit was brought upon a promissory note-.dated March 25, 1893, due three years after date, for -$600, with interest at eight per cent, per annum, payable every first of July and January.

Equitable petition. Before Judge Falligant. Chatham superior court. December term, 1896. The petition alleges, that plaintiff conferred with Wheaton, a regularly employed solicitor for Davant & Son, agents of the defendant, with the view of procuring insurance against loss by fire upon her dwelling-house and the furniture therein, situate in Savannah.

Action for damages. Before Judge Hutchins. Walton superior court. August term, 1896. This was a suit against the railroad company to recover damages resulting from the burning of a gin-house. To the refusal of a new trial after the rendition of a second verdict for the plaintiffs, the defendant excepted. The burning occurred about three o’clock in an afternoon in April, 1894. There had been no fire in or about the house for several days.

Actions for damages. Before Judge Reese. Hart superior court. September term, 1896. These two suits were brought against the receiver of the Hartwell Railroad Company, for damages resulting to the plaintiffs by the burning of their woodlands by fire which they claimed to have been thrown out from the locomotive of a train running on the railroad. A nonsuit was granted; to which ruling, and to two others hereafter noted, exceptions were taken.

<p>Where the administration of an estate has been vested in the clerk of the superior court, a court of equity is not authorized to interfere with him in the conduct thereof, even where it is alleged that he is insolvent and . has given no bond, where it also appears that the court of ordinary has full power to protect the complainant against the consequences of the alleged misconduct of such administrator, and that the complainant has not applied to the ordinary for the exercise of such power; and especially is this true where it is doubtful, from the allegations of the petition, whether the plaintiff has any substantial interest whatever, in either a personal or representative capacity, which will be imperiled by such wrongful act if it be committed by the administrator.</p>

<p>1. Jurisdiction to render a judgment may be acquired by serving the defendant with the process of the court in which the case is pending, by his appearing in person and pleading, or by the appearance of some one authorized by the defendant who does so appear and plead for him; hence, when a judgment is attacked by affidavit of illegality alleging want of jurisdiction of the person of the defendant, because he had not been served, and had neither appeared and pleaded nor authorized another to do so for him, it is incumbent on him, in order to sustain his illegality, to prove affirmatively the truth of all these allegations.</p> <p>2. Where an affidavit of illegality assails the judgment upon the ground of a want of jurisdiction of the defendant, and there are other grounds, embraced in the same affidavit, which raise other questions, there is no abuse of discretion upon the part of the trial judge in directing a separate issue to be formed and first tried upon the ground calling in question the jurisdiction of the court.</p> <p>3. Except as above indicated, no question is presented by the bill of exceptions with sufficient clearness to enable this court to consider whether or not, in the rulings complained of, the court committed error.</p>

<p>Levy and claim. Before Judge Hutchins. Jackson superior court. August term, 1896.</p>

<p>Levy and claim. Before Judge Hutchins. Oconee superior court. July term, 1896.</p>

<p>When, from natural causes only, water accumulates upon land in such quantities as that, in the process of evaporation, noxious and deleterious gases are emitted, which are injurious to the public health and to the health of persons residing in the community, if the owner has not contributed by his own act to bringing about that result, he can not be held answerable for the creation or continuance of a nuisance, nor can he be compelled, by order of the magistrates under section-4760 of the Civil Code, to abate the nuisance resulting from such,cause.</p>

<p>Where in the county in which a contract of passenger carriage was to be performed a suit was brought against a railroad company upon a cause of action arising out of a failure and refusal to perform such contract, and the declaration was so drawn as to be susceptible of two constructions, under one of which the action could be construed to be a suit for a tort arising from the breach of duty, and under the other a suit for the breach of the contract of carriage, and a demurrer was filed to such action, upon the ground that the court had no jurisdiction to try the cause of action sounding in tort, it appearing that the wrongful act complained of was committed in a county other than that in which the suit was brought; and where, in order to meet such demurrer, the plaintiff amended his declaration by striking therefrom the elements of damage alleged to have resulted from the commission of such tort, and, thus electing to proceed as for the breach of a contract, the plaintiff further amended his declaration by alleging generally that he had been damaged in the sum of five hundred dollars by reason of the breach by the defendant of. its contract, without stating the elements of such damage, how or wherein they accrued, and a special demurrer to the declaration as amended was filed, upon the ground that it did not allege with sufficient certainty the elements of damage relied upon by the plaintiff to enable the defendant to defend the action, the court erred in sustaining the demurrer and dismissing the plaintiff’s action generally, the declaration as amended being sufficient to sustain a recovery for nominal damages.</p>

<p>1. A conviction in a case of felony is sustainable upon the testimony of a. single witness, though an accomplice, when the same is corroborated by other testimony connecting the accused on trial with the perpetration of' the crime and tending to show his participation therein.</p> <p>2. In the present case, the corroborating evidence relied upon by the State: was sufficient to meet the requirements of the rule above announced.</p>

<p>1. Merely buying whisky for another, whose money is used in making the purchase, does not, “as matter of law,” constitute the person so doing the agent of both the seller and the buyer.</p> <p>2. While in the trial of an indictment for selling liquor unlawfully the accused may justly be treated as the seller, if it be proved that he received the money of another and shortly thereafter delivered whisky for the same, and if there be nothing, either in the evidence or the statement of the accused, to show from whom the whisky was obtained, or that some other person was the actual seller, the mere failure of such a person so> delivering whisky to disclose, at the time of so doing, “the name of the person from whom he bought,” will not, of itself, necessarily warrant the conclusion that he is himself the seller to the person to whom he delivered the whisky.</p> <p>3. In view of what is above laid down, the following charge, in the present case, was erroneous: “I charge you as a matter of law, if you believe the witness .' . gave the defendant . . money to buy liquor with, and he went off and brought the liquor back, I charge you, then he is the agent of both the seller and the buyer and he is as guilty as the seller, especially if he failed to disclose the name of the person from whom he bought; the law will treat him under these conditions as the seller himself.”</p>

<p>Indictment for assault with intent to rape. Before Judge Reese. Hart superior court. March term, 1897.</p>

<p>Indictment for embezzlement. Before Judge Candler. Fulton superior court. March term, 1897.</p>

<p>Motion to dismiss writ of error.</p>

<p>Motion to modify decree. Before Judge Kimsey. Hall superior court. July term, 1896.</p>

<p>Application to make proof of suretyship. Before Judge Kimsey. Hall superior court. July term, 1896.</p>

Complaint on note. Before Judge Kimsey. Towns superior court. September term, 1896. Suit was brought by Webb & Welsh upon a promissory note against Snyder as maker and Erwin as indorser. The note, was dated September 28, 1893, due one year after date, and payable to the order of Elliott & Moore.

Certiorari. Before Judge Kimsey. Habersham superior court. March term, 1896. An execution from a justice’s court in favor of Dooly against W. F. Miller, and J. H. .Miles garnishee, from a judgment of February 16, 1894, was levied on November 30, 1894.

<p>Indictment for murder. Before Judge Falligant. Chatham superior court. March term, 1897.</p>

<p>1. The declaration of a person who died of a mortal wound, to the effect that in the declarant’s opinion the infliction of this wound was accidental, is not admissible in favor of the slayer upon his trial for murder.</p> <p>2. It is not improper for a trial judge, when he sees that a witness is embarrassed or hesitates while testifying, to caution him not to become excited and to think over what he is going to say. 3.</p> <p>3. Where in a criminal trial the solicitor-general makes an improper statement of which the judge is not aware, or indulges in an improper argument which the judge of his own motion promptly stops and rebukes, and no ruling as to these matters is invoked by the accused or his counsel, it is too late after verdict to take advantage of such irregularities.</p> <p>4. When in a trial for murder there is a doubt as to whether the pistol with which the homicide was committed has been put in evidence, there is no impropriety in the judge’s inquiring as to the truth of this matter, in order to satisfy his own mind “whether the pistol had been formally offered in evidence.”</p> <p>5. While as a general rule the contents of a writing can not be proved by parol, if the fact that a witness has knowledge of the existence and of the amount of an insurance policy is relevant as affecting her credibility, such knowledge is a proper matter of inquiry, and it is not erroneous to allow the witness to testify to the same, and, in so doing, to state the amount of the policy, “if she knows it as a substantive fact independent of the policy.”</p> <p>6. It is not incumbent upon the judge to require the official reporter or stenographer of the court to remain in attendance until the end of a trial, in order that, in case of disputes between counsel ,as to what the evidence was, a party may not be “deprived of the privilege of referring to the official report of the case to refresh the recollection of the jury.”</p> <p>7. If the judge undertakes to instruct a jury trying a murder case as to the various forms in which their verdict may be written, and, in so doing, states what would be proper forms for all findings, from that of murder without a recommendation down to involuntary manslaughter in the commission of a lawful act, he should not omit to state; in the same connection, what the form of the verdict should be in case of an acquittal. Failure to do so is not, however, cause, for a new trial when it appears that the judge distinctly charged the jury that, in a certain view of the evidence, they should acquit the accused, and when it is manifest from their finding him guilty of the highest offense charged that the omission in question could have done him no injury.</p> <p>8. There was no error in the charges complained of; the evidence warranted the verdict, and the record discloses no cause for a new trial.</p>

<p>Foreclosure of mortgage. Before Judge Lumpkin. Fulton superior court. September term, 1896.</p>

<p>1. The evidence introduced by the plaintiff, on the trial of an action upon a policy issued by a life-insurance association, showing that promissory notes given by the insured for the first premium on such policy had matured while he was in life, and that.the same had never been paid, and the policy stipulating that “No insurance shall take effect under this policy until the first payment hereby required is made during the ‘lifetime and continued good health of the insured,” and also that “ In case any note, check or draft, given in payment or part payment of money due the association, shall not be paid at maturity, this policy lapses in the same manner as it would had the payment not been made when due,” there was no error in granting a nohsuit.</p> <p>2. If, in a case of this kind, a demand upon the insured for payment of the premium notes after their maturity could, in any event, be treated as a waiver by the association of the foregoing stipulations, it certainly ought not to be so treated when payment is refused.</p>

<p>Where mutual promises are relied upon as a consideration to support a contract, the obligations of the contract must be mutually binding upon the respective parties; and if one assume under such an agreement to do a special act beneficial to.another, and that other under the terms of the contract is under no obligation to perform any act of corresponding advantage to the former, the agreement is without such consideration as will support the promise of the party assuming to perform; especially is this so when the time during which the alleged contract is to remain operative is so indefinite and uncertain as to render the same incapable of enforcement.</p>

<p>1. Where upon the call of a case pending upon appeal in the superior court a motion is made to dismiss the appeal and is overruled, and thereupon the appellee files exceptions pendente lite to the judgment overruling such motion, and the cause proceeding to trial results in a verdict in his favor, and where in such a case a motion for a new trial is made by the appellant which is overruled and he prosecut.es a writ of error to this court, the appellee filing a cross-bill of exceptions assigning error upon the refusal of the trial judge to dismiss the appeal, and where upon the hearing of such writs of error it appears that the questions made in the cross-bill are controlling upon the case as a .whole, they will be first considered; ' and if the judgment of the trial judge upon such exceptions is reversed, the errors complained of in the main bill of exceptions will not be considered.</p> <p>2. An affidavit in forma pauperis, under which an appeal is sought to be entered, is defective which does not state conjunctively in the language of the statute that the appellant is unable from his poverty both to pay the costs and to give the security required by' law in cases of appeal; and hence an affidavit, made for such purpose, which states only that the appellant is unable from his poverty “to give the security required by law in cases of appeal,” will not suffice; and this is true even though it was made to appear upon the hearing of a motion to dismiss the appeal for the want of a sufficient affidavit that the costs had already been paid.</p> <p>Lumpkin, P. J., concurring specially.</p>

Protest to processioners’ return. Before Judge Kimsey. White superior court. October term, 1896. Processioners made a return accompanied by a surveyor’s plat of the west half of land lot 4 in the 2d district of White county.

<p>1. Where two contracting parties deal with each other on equal terms, and there is no such confidential relation between them as would justify a special confidence or trust reposed by one in the other, a written agreement entered into between them can not be set aside upon the ground that the party seeking to be relieved was induced to enter into and sign such agreement in consequence of fraudulent misrepresentations upon the part of the adverse party (these misrepresentations not, however, relating to the contents of the agreement), when it appears that the party signing did so after full opportunity to inform himself as to the terms of the instrument, but negligently omitted to take such precautions as would reasonably have served to protect him against the imposition alleged to have been practiced.</p> <p>2. A plea by one subscriber for stock in a joint enterprise, where there were a number of subscriptions for a common object, that one of such subscribers had been released from liability on his subscription, is bad, unless it avers that such release was made by the person lawfully holding the contract of subscription in settlement for the work accomplished.</p>

Equitable petition. Before Judge Gober. Cobb superior court. November term, 1896. On July. 23, 1895, Elisha Thayer filed his petition against the North Georgia Telegraph Company, a corporation of this State, and J. B. Glover, receiver of the Marietta and North Georgia Railway Co., under appointment of the circuit court of the United States for the northern district of Georgia. The petition was brought to the superior court of Cobb county.

<p>Appeal. Before Judge Milner. Gordon superior court. August term, 1896.</p>

Complaint on note. Before Judge Milner. Murray superior court. December 16, 1896. Hill sued O’Neill as principal and McEntire as surety upon a promissory note for $300, dated January 14, 1889, due twelve months after date, with interest at 12 per cent, per annum, and payable to Starr or bearer. It was endorsed by interest paid to January 1,1891, and by receipt from Starr of $22.50 collected from Bates for McEntire, January 29, 1894. O’Neill pleaded usury.

Certiorari. Before Judge Hart. . Greene superior court. August term, 1896. John H. Bowles brought an action of trover against Dick Bowles, in a justice’s court, to recover certain corn, fodder, peas and cottonseed of the alleged value of $50, to pay the balance due on an account for supplies furnished to the defendant .as a “cropper” of the plaintiff.

<p>1. 'Under a contract by the terms of which one undertakes to pay to an attorney at law'a sum certain for professional services rendered in respect of a particular matter, such attorney is not entitled to recover for services rendered' by him to the same person in respect of another and entirely ' different matter.. For services' rendered with respect to the matter last referred to, even though there be no agreement between his client and himself as to the amount to be received by him,- he would nevertheless, if he rendered valuable services, be entitled to recover upon a quantum meruit a reasonable sum by way of compensation for such service.</p> <p>2. -Under the principle above announced; the verdict in the present case was contrary to law, and the court should have set it aside on motion.</p>

Complaint, on note. Before Judge Berry. City court of Atlanta. January term, 1897. Smith sued Angier as maker, and Brownlee as indorser; upon a promissory note for $125 principal, besides interest and attorney’s fees, dated'March 1, 1895, and due at ninety days. It was indorsed by Brownlee to Smith, who alleged that he became .the. owner of the note as so indorsed, before its maturity, and that he had presented it for payment, which was refused.

<p>Action for damages. Before Judge Milner. Whitfield superior court. October term, 1896.</p>