Volume 102 — Georgia Reports

<p>Complaint for land. Before Judge Hart. Morgan superior court. September term, 1896.</p>

<p>Where a bond for titles was executed and delivered to a named person as trustee for a woman and her children and a portion of the purchase-money paid, the woman was not, within the meaning of section 3586 of the Code of 1882, such a holder of the property described in the bond as would, under that section, authorize a levy and sale of “the entire interest stipulated in the bond,” under an execution issued against her as an individual; nor could her interest in the property be, by such a levy, reached and subjected to the satisfaction of the judgment upon which such execution was founded. What her interest was, and how the same could be so subjected, are questions not made in the present record.</p>

Action for damages. Before Judge Milner. Whitfield superior court. October term, 1896. Brown sued the railroad company for $500, by reason of the negligent killing of a jennet. The defendant admitted the killing, but denied that the jennet was worth $500 or any • other large sum,- and denied that the killing was due to any fault or negligence on the part of the defendant or its servants. There was a verdict for the plaintiff for $108.16§ and costs of , suit.

Complaint on notes. Before Judge Gober. Greene superior court. August term, 1896. Caldwell sued Underwood upon two promissory notes for $672.37 each, interest and attorney’s fees, executed by the defendant and Henning as joint and several makers, and payable to the order of Heard, by whom they were endorsed to the plaintiff.

<p>Deceit. Before Judge Hart. Baldwin superior court. January term, 1897.</p>

<p>Appeal. Before Judge Hart. Laurens superior court. December 14, 1896.</p>

Homestead—appeal. Before Judge Hart. Baldwin superior court. January term, 1897. To the application of Laura K. Haygood to the court of ordinary, for a homestead out of the property of her husband W. E. Haygood, objections were filed by the Dannenberg Company et al., creditors of W. E. Haygood. The case was appealed to the superior court, and was there prosecuted for the use of the applicant’s attorneys.

<p>A proceeding to foreclose an attorney’s lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon property of like kind; and hence the venue of such a proceeding is the county wherein the land lies.</p>

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

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

Claim. Before Judge Hart. Morgan superior court. September term, 1896. To land advertised for sale by F. C. Foster, executor of A. G. Foster, as property of the estate of the testator, a claim was interposed by Mattie Y. Harwell and others.

<p>1. In a suit against two as joint wrong-doers, to recover damages for injuries occasioned by falling into a cellar which one had caused the other to have excavated on his lot, it was error in the court to refuse to admit in evidence, save only for the purpose of being considered as an admission of the extent of her injury, a receipt signed by the plaintiff in which she acknowledged having received from one of the defendants against whom the action had been dismissed a sum of money in full settlement for all damages sustained, there being no objection to admitting the receipt because this defendant had not pleaded a discharge, and the court holding that the plea could not be amended so as to make the receipt admissible to show such discharge.</p> <p>2. A receipt for a given sum of money from one of two wrong-doers jointly sued, “in full settlement for all damages or injuries sustained or suffered by me, or that may result to me by reason of my fall into the excavation,” etc., when unexplained, is evidence of a satisfaction for all injuries so sustained, and will operate to discharge not only the one making payment, but the other; and where the two were jointly sued for the same negligent act, and the action was dismissed as to one of them, it was error, in the trial against the other, to charge that the jury could only consider the receipt in the nature of an admission as to the extent of the injury.</p>

<p>Where a testator, whose wife and daughter were his only heirs at law, devised land to the former for life, with remainder to the latter “during her natural life, with the power to devise and bequeath the said real estate by will at her death to whomsoever she may desire,” the daughter, after the death of her mother, of whom she was the sole heir, became the owner of the fee. Although under the will she took only a life-estate in the property, with the power to dispose of the same by will, she also took by inheritance as the sole surviving heir of the testator the contingent interest which would have reverted to his estate in case of a failure by her to exercise this power; and the two interests thus becoming merged in her, the effect was to vest in her a complete title to the property devised, and a deed executed by her conveyed the same in fee simple to her vendee, there being no question as to any rights of creditors of the testator.</p>

<p>The levy of an execution for $55.00 principal debt, $15.24 interest, and $2.10 costs, upon two separate lots of land in a city, with three dwelling-houses thereon, such houses and lots being of the aggregate value of $1,400.00, is excessive, and a sale thereunder of such property in bulk (it being easily susceptible of subdivision) for the grossly inadequate sum of $25.00, without any attempt on the part of the officer selling to subdivide the same and without his offering to sell it in parcels, is void; and the refusal of the judge to grant an injunction to restrain the purchaser and the officer making the sale from turning the owner out of possession was error.</p>

<p>Foreclosure of mortgage. Before Judge Felton. Crawford superior court. March term, 1896.</p>

<p>1. According to the provisions of paragraph 4, section 1, article 2 of the constitution of this State (Civil Code, $5927), it is requisite only that two thirds of the qualified voters of a county, who may have voted at an election held for that purpose, should vote in favor of the removal of a county-site, in order to authorize such removal. The act of the General Assembly approved October 8, 1879 (Civil Code, \ 394), provides that the assent of two thirds of the qualified voters of the county shall be necessary to authorize such removal. Inasmuch as the act referred to imposes upon the right and power of removal conditions other than those expressed in the constitutional provision above mentioned, and requires a greater number of votes in order to authorize such removal, such act is to that extent unconstitutional and void.</p> <p>2. The constitutional provision above referred to, in so far as the same prescribes the method of ascertaining the number of votes necessary to a change of a county-site, differs from those other provisions of the constitution bearing upon the right of counties to incur debts, etc., in that, in the former the exercise of the privilege is dependent upon the assent of two thirds of the qualified voters voting at the election, and in the latter, upon the assent of two thirds of the qualified voters of such county.</p> <p>3. Under the provisions of section 391 of the Civil Code, the power to call an election to determine whether in a given county there shall be a change of the location of the county-site is vested in the ordinary; and even if the General Assembly had power in a given case to so change this geheral law as to vest this power in another official, the act approved December 8, 1886, creating a board of commissioners of roads and revenues for the county of DeKalb, neither vested nor sought to vest such power in the board of commissioners created by it.</p> <p>4. In holding such an election, it is necessary not only that the voter voting for the removal of the county-site should state upon his ballot “for removal,” but also that he should designate thereon the particular place to which he desires the county-site removed.</p> <p>5. To the validity of such an election it is not indispensable that the polls should be opened at each of the polling-places in the county.</p> <p>6. Where in a given case the correctness of the result of such an election is called in question, an admission made in the pleadings that certain of the voters, voting at such election, voted in favor of the removal of the county-site to a particular place, so long as it stands as a part of the pleadings, is binding upon the party making it, and the court is neither required nor authorized to inspect the several ballots to which such admission relates, in order to ascertain whether the facts thus admitted are true.</p> <p>7. Where an election to determine upon the change of a county-site was regularly ordered by the proper authority, and in pursuance of such order an election was held which resulted in favor of a removal of the county-site by the requisite majority of the qualified voters voting at such election, and, notwithstanding such vote, the ordinary, before the General Assembly shall have had an opportunity to consider whether the necessary election has been held and whether it will authorize a removal of such county-site, is proceeding, at great expense to the public, to erect a new court-house at the place from which it was sought to remove such county-site, a court of equity, at the suit of' taxpayers of such county, will enjoin the contemplated appropriation of public money necessary to the construction of such court-house; and in passing upon the question, as to whether it will exercise such jurisdiction, it will not look behind the returns of. such election to determine whether or not irregularities occurred in the. conduct of such election, and to what extent such irregularities, if any existed, may have contributed to the actual result.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. November term, 1896. .</p>

<p>Complaint for land. Before Judge Hart. Baldwin superior court. January term, 1896.</p> <p>'' The administratrix with the will- annexed of Catherine Banks brought her action against Samuel Walker to recover a tract of land consisting of 320' acres, of which she alleged the testatrix was the owner at the time of her death. The defendant pleaded, that on February 8, 1886, Catherine Banks contracted to sell -100 acres of the land sued for, and which is now in defendant’s possession, •'to one-Berry King for $400, for which she took from King his four promissory notes for $100 each, due respectively November 1, 1886, November 1, 1887, November 1, 1888, and November 1, 1889, giving him her bond for titles to the land, and that King went into possession of the land; that the notes were afterwards sold or discounted by her to one Joel; that subsequently the defendant, at the request of Catherine Banks, paid off a debt of $560 which she ■owed to Joel and which was secúred by mortgages on the land, with power of sale, and took up two of the notes of King which Joel held against her; and that afterwards the defendant was put in possession of the land by A. J. Banks, in settlement of the indebtedness due defendant; that Catherine Banks received and used for her benefit the purchase-price of the land, and she having delivered her bond for titles to Berry King, which is still outstanding, and the notes of Berry King Raving been paid .to her, her administratrix has no right or title to the land; and there is a perfect equity against the plaintiff.</p> <p>The verdict was for the defendant. The plaintiff made a motion for a new trial, which was overruled, and she excepted. The motion contained, in addition to the general grounds, the following: The court erred in admitting in evidence, over movant’s objection, a fragment of what seems to be a bond for title to Berry King and signed “A. J. Banks, attorney in fact for Mrs. C. Banks,” counsel insisting that there was no evidence of authority to make said bond, nor ratification thereof, nor written assignment of said bond by King to Walker or other person, produced in evidence. The court erred in admitting in evidence, over movant’s objection, as irrelevant, two promissory notes for $100 each, made by Berry King to “A. J. Banks, agt.,” dated February 8, 1886.</p> <p>The following appeared from the evidence: Joel held mortgages upon the 100 acres in dispute, executed to him by Catherine Banks, and two promissory notes of Berry King to A. J. Banks, agent, referred to in the motion for a new trial, which notes were indorsed by Catherine Banks, and recited that they were for part of the purchase-money of 100 acres of land on that day purchased from A. J. Banks, agent. He was also the holder of a fragment of a bond for titles, the contents of which portion were as follows:“.... for the.sum of four hundred dollars as follows: one note for $100 due Nov. 1st; 1886, one for $100 due Nov. 1, 1887, one for the sum of '$100 due Nov. 1st, 1888, and one for $100 due Nov. 1, 1889. Now, if the said A. J. Banks, agt., shall make or cause to be made to the said Berry King, for such uses or persons as he may direct, good and sufficient warrantee titles in fee simple to all said land, with all the rights, members and appurtenances thereto belonging, free from mortgage or other incumbrance, by such conveyance as said Berry King may reasonably demand, upon the payment by the said Berry King of his said promissory note on the conditions therein stated, so given by him as aforesaid as part consideration for the purchase of said land, then this bond shall be void, else of full force and effect. A. J. Banks (L. S.), atty. in fact for Mrs. C. Banks. Signed, sealed and delivered in the presence of Walter Paine, elk. sup’r crt. B. C., Ga.”</p> <p>The defendant testified that this paper was sold to Joel by Berry King, and that defendant bought the land from Joel. He advanced $560 to pay what Mrs. Banks owed Joel, and Joel turned over to him the two notes of Berry King, two. mortgages of Mrs. Banks to Joel, and a fragment of a bond for titles. These were the only papers attached. The money to pay this indebtedness of Mrs. Banks was advanced by defendant at. her request. Mrs. Banks was present when this settlement, took place. The land for which the notes of Berry King were given was spoken of as the “Berry King land”; and Mrs. Banks said she sold the land to him. »There was evidence that he went into possession as a tenant. He bought it after-wards, and remained in possession until his death. He left a widow and no child, and the widow surrendered possession to-Mrs. Banks. Mrs. Banks died, and her husband, A. J. Banks,, then held the land until his death. After the death of Mrs. Banks, A. J. Banks mortgaged to the defendant, as security for a note for $560, the 320 acres sued for, and subsequently executed to the defendant a warranty-deed to the 100 acres in dispute, and turned over the 100 acres to him. Mrs. Banks left a will, which was probated, in which she gave all her estate to A. J. Banks for life, remainder to Lucinda Martin and two other persons.</p> <p>The two notes of King and the fragment of the bond for titles, above referred to, were admitted in evidence after Walter Paine had testified that the notes were drawn by him, and that the fragment of the bond for titles was a part of a bond for titles drawn by him; that they were executed in his presence,, and that he thought Mrs. Banks was present when they were-executed. They were executed at his office, and he knew that she was there 'once with Berry King, but could not tell if that, was the time -when Berry King signed these papers. Defendant was recalled and asked: “Look at these papers and also-these notes, and state if you know anything about a transfer or assignment in writing by Berry King, or by Joel, to you?' A. Yes, sir, that is my recollection throughout the whole case. He asked me to redeem the -land and take up the notes. He had asked me to pay the security and hold the land. Q. Does this then cover all that occurred between you and him in settlement of the matter? A. That was the settlement between me and Andrew Banks. He afterwards surrendered the 100-acres of land.”</p>

<p>Petition for injunction. Before Judge Hart. Morgan county. May 19, 1897.</p>

<p>Where the executors of the deceased payee of a promissory note bring a suit thereon against a husband and wife who signed it as joint makers, and the wife flies a plea that the debt was her husband’s and that she is not bound therefor, the husband is a competent witness, under the evidence act (Civil Code, §5269), in support of the plea of the wife. The testimony thus offered is not evidence in favor of the party testifying.</p>

<p>1. The entry of a judgment upon a justice’s court docket prior to the time when the registration act of 1889 took effect was notice to all persons dealing with the defendant of the existence of such judgment, and this notice was sufficient to put a purchaser from the defendant upon inquiry as to what disposition was made of such judgment, and, consequently, upon notice of all facts to which such inquiry, properly conducted, would lead.</p> <p>2. Where the defendant in such a judgment entered an appeal to a jury in the justice’s court, which resulted in a verdict and judgment for the plaintiff, for the same principal sum, with the additional interest and increased attorney’s fees which had in the meantime accrued, a purchaser of property from the defendant after the rendition of such verdict took subject to the judgment signed up thereon by the plaintiff’s attorney and finally entered upon the magistrate’s docket, though this last entry was not, in point of time, made until after the purchase took place.</p>

<p>Complaint on account. Before Judge Gamble. Washington superior court. September term, 1896.</p>

<p>Attachment and claim. Before Judge Falligant. McIntosh superior court. May term, 1896.</p>

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

Action on insurance policy. Before Judge Felton. Bibb • superior court. April term, 1896. Swain brought suit upon a policy of fire-insurance upon a dwelling-house and furniture therein contained. On the trial, at the close of plaintiff’s evidence, the court on motion ordered that he be nonsuit for the claim of loss upon the house; and at the close of all the evidence, directed a verdict for the defendant.

<p>Minors are certainly so fax concluded by a judgment, regular on its face and rendered by a court of competent jurisdiction in an action brought in their name by a next friend, as that they can not collaterally attack its validity when produced in evidence against them in another and entirely distinct proceeding. If the action was brought without proper authority, or if the judgment was for any reason unlawful or improper, it should have been directly attacked in the court by which it was rendered.</p>

<p>Action on insurance policy. Before Judge Ross. City court of Macon. September term, 1896.</p>

Complaint on notes. Before Judge Ross. City court of Macon. September term, 1896. On May 12, 1896, the bank brought suit upon two promissory notes for $5,200 each, dated March 11, and October 28, 1891, the one due at one year, the other at six months, payable to J. C. Simonds, cashier, or order, at the First National Bank of Charleston, with discount before and interest after maturity, at eight per cent.

<p>Where one who has executed a deed to a third person, conveying to such third . person a tract of land as security for the payment of a debt, afterwards points out the property so conveyed, to he levied upon under an execution in favor of another person who has recovered a judgment against him, and, after a sale of such .land, receives from the sheriff and appropriates to his own use the money paid by a purchaser under such sale in excess of the sum required to satisfy the execution so levied, he can not thereafter, by paying off the debt to secure which the deed was given, reinvest himself with a title which would defeat" the right acquired by such pui’chaser under such sale. Having assented to the sale of the land as his own, and taken the proceeds to his benefit, he will be held to have waived his right to have such property sold in strict conformity with the manner pointed out by law, and is estopped to deny that his equity of redemption passed to the purchaser; and if he afterwards discharged the equity of the creditor claiming under the outstanding security-deed, such discharge of the encumbrance would enure to the benefit of the purchaser who had been thus fraudulently induced to expend his money upon the faith of the apparent and professed ownership of the defendant in execution.</p>

<p>1. One sued in his individual capacity for a wrongful conversion of personal property may justify by showing that the property alleged to have been wrongfully converted by him was rightfully held as the property of a lunatic for whom, subsequent to the conversion, he had been appointed guardian; but upon the trial of such a case, the plaintiff is a competent witness on her own behalf even as to communications and transactions which occurred between herself and such lunatic before he became insane ; and this is true even though upon the trial an order was passed, without objection, making the defendant in his representative capacity also a party defendant, such order not being effectual to make the lunatic himself a party to the case.</p> <p>2. Where a wife turns over to another a sum of money as the property of her insane husband, at the time of its delivery claiming no interest in such money, and the person to whom it is-delivered is afterwards appointed guardian of the insane husband, and in good faith, without notice of any claim on the part of the wife to such money or any portion thereof, lawfully expends the same to the use of the estate represented by him, he can not, upon principles of estoppel, be held answerable in his personal capacity to the person injured for the sum so appropriated; but in order for an estoppel to arise in his favor, the burden is with him to show, not only that he received the money in good faith believing it to be that of his ward, but that he lawfully expended it without notice of the personal claim of the wife.</p>

<p>Where an entire tract of land is levied upon, and a claim is filed which is as broad as the levy, and any portion of the property levied upon is found, upon the trial, not subject, a verdict finding damages against the claimant as for a claim filed for purposes of delay only is contrary to law, and on motion should he set aside. This being the only material error complained of, direction is given that the verdict, in so far as it awards damages against the claimant, be set aside, and that the judgment below be amended accordingly, and then stand affirmed; also, that the defendant in error pay the costs that have accrued in this case since the rendition of the verdict complained of.</p>

Garnishment and claim. Before Judge Ross. City court of Macon. September term, 1896. On May 14, 1895, Cullen executed to Ainsworth a mortgage on his entire stock of goods, fixtures and books of account, together with any additions or increase thereto thereafter made,. for securing a promissory note of the same date, due one month later, for $1,000. The mortgage was duly recorded.

<p>' Complaint. Before Judge Ross. City court of Macon. September term, 1896.</p>

<p>Equitable petition—interventions. Before Judge Felton. Bibb superior court. November term, 1896.</p> <p>Dunbar intervened in the equitable cause of McTighe & Co. et al. v. Macon Construction Co., Macon & Birmingham Railroad Co. et al., alleging: These two companies are indebted to him $2,740 beside interest from January 24, 1891, for material furnished and labor done by him as contractor and builder in the construction of three section-houses at and on sections 6, 7, 8 and 11 of the railroad company, under parol contract with the general manager of said two companies. His contract has been fully performed, since which he has demanded payment of said general manager, who refuses the same; and this action is commenced within twelve months from the time the same became due. He has caused to be recorded his lien as a contractor and materialman in the counties where said buildings were constructed; has taken no personal security for said indebtedness; and praj^s for the enforcement of his lien against the property of defendant. He joins in the prayer of the petition for injunction, receiver, etc.; and specially prays for judgment against said defendants for said sum with interest due him, that his mechanic’s lien may be enforced and the legal priority of his claim be established by decree. Attached is his account against the two companies, for material furnished and work done as per contract in construction of three houses at each of the four sections designated, being four items of $785 each, dated December 24, 1890, January 20, February 4, and March 13, 1891, with a credit of $400 cash.</p> <p>This intervention, with other matters in the litigation, was referred to a special master, who reported, among other things, as follows: “The intervention of D. C. Dunbar is for $2,740 for building section-houses on the line of defendant’s road. The intervention is accompanied with liens recorded under the statutes of the State, and the prayer of petitioner is for a general judgment, and specific enforcement of lien with priority over the lien of the first mortgage bondholders of the railroad company. This claim was properly proved for the amount sued for, and I recommend that intervenor have judgment against the Macon Construction Company for said sum of $2,740 principal debt. ... I have also declined to recommend special judgment, or‘a decree enforcing the liens sought to be established. Intervenor seeks a judgment against the Macon Construction Company and also against the Macon & Birmingham Railroad Company. The evidence submitted on the hearing of this case shows, that the Macon Construction Company was under a written contract with the Macon & Birmingham Railroad [Co.] to build and equip said road, that the contract of intervenor was with said Macon Construction Company, and that theintervenor.laiew when he entered into said contract that the Macon Construction Company was ■under contract to build said Macon & Birmingham railroad. . . It appearing that intervenor was a contractor under the primary contractor, the Macon Construction Company, he must look to the parties contracted with for payment. Intervenor seeks, in the evidence supporting his intervention, to show what amount is for labor and what for material furnished. The claim of lien and declaration is for a gross sum, and no amendment was offered seeking foreclosure for material furnished alone. . . Waiving this, however, and meeting the issue made by the evidence, I am of the opinion that where two sums are blended in one lien, there can be no legal .separation.”</p> <p>Dunbar excepted, alleging that, as matter of evidence, the master erred in not finding that he had a prior lien to the mortgage bondholders, and that his lien was for improvements on the real estate of the construction company, the ■owner of the real estate on which he built the houses; and that, as matter of law, the master erred in not finding that his claim was a lien upon the real estate of the construction company and the improvements thereon, for material furnished and labor done in constructing houses upon said real estate. Upon the trial of the exceptions, the court approved the -exception of fact in so far as that the master failed to find that for material furnished, amounting to $1,960, the same was a special lien on the property of the railroad company; and disapproved the exception in so far as it relates to the failure to find a lien for labor done. To this ruling the railroad company and the receiver thereof and the trustee of the first mortgage bondholders excepted. They also excepted to the verdict directed and the decree rendered by the court in accordance with said ruling, that of the $2,740 for which judgment was rendered in Dunbar’s favor, the sum .of $1,960 be a lien upon the proceeds of the sale of the railroad in the hands of the commissioner of court, prior to that of the mortgage bondholders.</p> <p>By cross-bill Dunbar assigns error upon, the disallowance by the court of the remainder of the amount for which he had judgment ($870), as a lien for labor of like priority to that of his lien for material. He further alleges error: In not approving his further exception, that the master had erred in not allowing his claim as a lien upon the property of the construction company, and in failing to find that the property held in the name of the railroad company was the property of the construction company. And the further exception, that the master had found against his contention that he was entitled to a lien as against the construction company as the original owner of the land upon w'hich the houses were built; it appearing that he had filed his liens therefor before the railroad company had acquired said land from the construction company.</p> <p>The record contains two amendments made by the intervenor and allowed at the trial in the superior court. The first of these alleges, that of the amount declared for as due him by the construction and railroad companies, $1,960 was due for material furnished in the construction of the houses, and the balance was due him as mechanic for labor in their construction; and that the contract for furnishing the material and construction of the houses was made by him with J. D. Lane, the general manager of both companies. The other alleges, that the construction company undertook to build a railroad from Macon to Birmingham, and to carry out its scheme obtained from the legislature in 1888 a special charter which is void, there being an existing general law enacted in 1887 for the granting of railroad charters; that the construction company was to obtain the right of way, furnish the material, construct and equip the railroad from Macon to Birmingham, and turn it over when completed to the railroad company, but it is not completed and has never been turned over to be operated by the railroad company, but was operated as far as completed by the construction company when placed in the hands of a receiver; that the railroad company was erected practically by the construction company, having the same general officers, and the directors of each being stockholders of the other; that the railroad company owned the stock and bonds of the railroad ; that intervenor has filed liens against "the construction company in terms of the law, in the counties wherein he built the houses, and he is a direct contractor with the construction company, the owner of the property; that by reason of the unconstitutionality of its charter, the railroad had no power to create a mortgage lien or make a trust deed upon the property, and intervenor did not know or trade with said pretended corporation. He prays, that his lien be foreclosed against the property set forth therein, as a first lien thereon; that the property of the railroad company be decreed to be assets of the construction company and subject to the payment of its debts; that it be decreed that the buildings and premises claimed in the lien are still the property of the construction company (if the court should hold the charter of the railroad company to be valid) and subject to the lien of intervenor as the property of the owner contracting directly with him (he denying that he was a subcontractor) and subject to any lien created by the railroad company, which, if acquiring any title, acquired it burdened with this lien.</p> <p>It appears in the James case, that on December 16, 1889, James Brothers made a contract with the Macon Construction Company, whereby the former undertook, in consideration of. certain payments to be made and covenants to be performed by the latter, to construct and finish all the piling timber, drains and trestling and such other work connected therewith as might be necessary to complete the Macon & Birmingham railroad between Macon and Woodbury, in accordance with certain specifications set forth in the contract and in accordance with the directions of the engineer in charge of the work, and to complete the same by July 1, 1890, under a forfeiture •of ten per cent, in case of failure so to complete by that date. They completed the work according to the contract, and filed and had recorded their lien as railroad contractors in the several counties where the work was done, upon the entire right •of way, road-bed, fixtures and other enumerated property of the Macon & Birmingham Railroad Company, a corporation under the laws of Georgia, having its principal office in Bibb county and running through that and other named counties to LaGrange; such claim of lien being for work done and material furnished, as well as labor in the construction of trestles, etc.</p> <p>The properties of the railroad and construction companies-having been placed in the hands of a receiver upon the petition of McTighe & Go. et al., James Brothers intervened, and their claim, with other matters in the litigation, was referred to a special master, from whose report appears the following: The claim of intervenors against the construction company is-fully sustained by the evidence, as to the amount due. There is no contention about this, the contest being as to whether they are original contractors and entitled to a lien as such, or whether they are subcontractors without right of lien or priority. The pleadings and exhibits show that they dealt with the construction company as original contractors for the building of the railroad. In their original petition it is stated as a fact that they were subcontractors of the construction company in the building of the trestles, etc., on the railroad, and one of the intervenors on oath avers this to be true. By amendment-this assertion of subcontractorship is denied; but the master concludes, under the pleadings and evidence; that the contract-was a subcontract, and that intervenors were not original contractors with the railroad company. It appears from the evidence, that when the railroad was commenced and this contract was made, the construction company was a-solvent corporation with large assets, that intervenors contracted therewith with full knowledge that it was the original contractor with the railroad company, that they were paid by the treasurer of the construction company from time to time for work done, and signed receipts to him; they do not claim to have been misled or deceived, and the. evidence all indicates that they relied upon the credit of the construction company and not upon that of the railroad. The master finds, that the railroad company was a corporation having a legal charter, and that it did not occupy the position of a railroad belonging to the construction company; but whether legally incorporated or not, intervenors treated with the-parties who were themselves contractors with the railroad as a corporation, and are estopped from collaterally attacking its legal existence. The lien taken ont by intervenors upon the railroad for material furnished and labor done was filed for a gross sum; by amendment they separated their accounts, and proved that the amount due them for labor was $10,942.14, and for material $5,015.08. The master recommends that they have judgment against the construction company for $15,957.22, with interest thereon from March 15, 1891; but holds that they are not entitled to any judgment against the railroad company nor any lien against its property; that their claim is one for original construction, and not for operating expenses; and that they do not occupy the relation of contractors which would entitle them to preferential liens over the claims of the first mortgage bondholders of the railroad company.</p> <p>To the master’s report numerous exceptions were filed by the intervenors. On the hearing all of these were overruled, except in so far as the master failed to find that intervenors were entitled to a lien for the amount of material furnished, upon the property of the railroad company, and in preference to the lien of the first mortgage bondholders. The court directed a verdict and decree accordingly. To this ruling the receiver of the railroad company, the railroad company, and the trustee of the bondholders excepted. The intervenors by cross-bill excepted to the disapproval of their other exceptions, contending that they should have been sustained, and that the court should have directed a verdict and decree in their favor for the sum found to be due them for labor, which should constitute a lien upon the railroad property superior to the lien of the mortgage bondholders.</p>

<p>1. Where the holder of an insurance policy deliberately, and after opportunity for full investigation, accepted as cash from the adjuster of the company a check in full payment and satisfaction of the loss claimed by him under such policy, and gave his receipt for the same, he could not thereafter, on the ground that he had been defrauded into making the contract of accord and satisfaction by certain statements made by the adjuster to the effect that, for reasons therein expressed, the company was not liable, maintain an action against the company for such loss; it not appearing that the adjuster, even if the statements in question were in- ■ correct or based upon erroneous reasons, had done anything to prevent the plaintiff from making a full investigation of his legal rights in the premises.</p> <p>"2. In the trial of such an action there was no error in refusing to allow the plaintiff to testify that an agent of the company had represented to him that the adjuster was a “gentleman of the highest honor,” in whom the plaintiff could absolutely rely, and that accordingly the plaintiff did rely upon him in making the settlement; there being no pretense that any relation of trust and confidence existed between the plaintiff and the adjuster.</p> <p>3. Nor in such trial was there any error in refusing to allow the plaintiff to testify, in effect, that after the contract of accord and satisfaction had been completed he declined to be bound by it and offered to rescind.</p> <p>4. There was no error in directing a verdict for the defendant.</p>

Injunction. Before Judge Felton. Bibb county. February 17, 1897. Ayer brought his petition against Henry, Mrs. Henry, Ger-dine, and Waterman & Co., praying for injunction and receiver.

<p>Where a city lot is, or becomes, a public nuisance, not because of anything done by the municipal authorities, but in consequence of overflows of surface-water resulting from rains, and the city, for the sole purpose of abating this nuisance and preventing its recurrence, either itself lays, or requires or permits the lot-owner under its supervision to lay, a drain-pipe in and across an adjacent street, and thereafter, in constructing a sewer constituting a part of a system of public sewerage essential to the health and welfare of the city, destroys this drain-pipe, so that water again accumulates upon the lot as it had previously done, a tenant of such owner can not maintain against the city an action for damages thus occasioned to a business he is conducting upon such lot or to his property thereon.</p>

<p>1. “Where a life-insurance policy is made conditional on the statements in the application being true, and the application states that the facts stated are true to the best of the applicant’s knowledge and belief, it will not avail the company as a defense to show that the facts stated were false, without showing that they were known to be false.”</p> <p>2. Though a policy of life-insurance may stipulate that it is issued on condition that the statements made by the insured in his application for the same and. in the statement certified by him to the company’s medical examiner “be made a part of this contract,” and though in the application the insured made certain representations as to his age, which the company, in defense to an action upon the policy, pleaded were false and fraudulent, it was not incumbent upon the plaintiff to prove affirma- ■ tively that these representations were true, but the burden of showing the contrary was on the defendant.</p> <p>3. Whether the act of an officer of a subordinate lodge of a given order is, in a particular instance, binding upon the “supreme conclave” of the same order, depends upon the relation of the former to the latter, as defined by its constitution and by-laws and upon what is therein provided; and this being so, it can not, in the absence of the necessary information on these points, be intelligently determined whether or not the payment of an assessment to an officer of the subordinate lodge would in legal contemplation be a payment to the “supreme conclave.”</p>

<p>1. A head of a family who as such files a claim to property levied upon under an execution issued against him as an individual has the right to withdraw such claim, and upon his so doing the same presents no further obstacle to the progress of the execution. It does not, however, follow that the mere withdrawal of the claim render's the exempted property subject to the execution.</p> <p>2. A judgment duly rendered is binding and conclusive upon a defendant therein, until set aside or reversed.</p> <p>3. There was no error.</p>

Certiorari. Before Judge Reese. Hancock superior court. August term, 1896. Suit was brought against the railroad company, to recover the value of goods consigned over its road to the plaintiff at Sparta, which appear to have arrived there on the afternoon of December 19, 1893, and to have been lost in a fire which destroyed the defendant’s fréight-depot and the contents-thereof that night about one or half past one o’clock.

Rule against receiver. Before Judge Reese. Hancock superior court. December 14, 1896.

<p>1. Where both parties to an action for land claimed under deeds from a common grantor, and the plaintiffs right to recover depended entirely upon the question whether or not the land in dispute was embraced in the description contained in his deed, and there was testimony which, if true, showed that his contention in this respect was well founded, it was erroneous to direct a verdict for the defendant, even though the evidence on this point apparently preponderated in the latter’s favor.</p> <p>2. The common grantor being a county, it was, in the trial of such action, improper to allow county commissioners by whom the plaintiff’s deed had been signed, or the county surveyor, to testify that it was not thereby intended to convey to the grantee the land in dispute, there being no ambiguity in the description of the premises.</p>

<p>1. It is essential to.the maintenance of an action by a parent for the homicide of his child, that the former should, at the time of the homicide, be to a material extent dependent upon the latter for a support, and that the child should then be actually contributing thereto.</p> <p>2. Accordingly, where a son while serving a term as a penitentiary convict was unlawfully killed, hut at the time of his death was not actually contributing to his father’s support, the latter could not recover for the homicide.</p> <p>3. The plaintiff’s action ought to have been dismissed on demurrer.</p>

<p>1. It being, in a policy of life-insurance payable to the wife of the assured, stipulated that it “is issued and accepted upon express conditions that the [assured] may, with the consent of the company, at any time assign it, or before assignment change the beneficiaries therein or make any other change,” it was the right of the assured with the company’s assent to surrender this policy and take in its stead a paid-up policy payable to a person other than the wife, she having paid none of the premiums.</p> <p>2. While as against all the world except the husband and the company the policy may have been the wife’s property, she, being a mere volunteer, had no right to complain of any change in the contract of insurance made in accordance with its express terms, and therefore after the husband’s death had no interest in the new policy.</p>

<p>Equitable petition. Before Judge Henry. Walker superior court. August term, 1896.</p>

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

<p>Complaint on notes. Before Judge Henry. Walker superior court. August term, 1896.</p> <p>On January 16, 1896, suit was brought by William Morrison against James Morrison upon five promissory notes dated March 4, April 4, May 4, and October 11, 1893, and July 16, 1894, payable “after date.” The declaration alleged that they were payable on demand. Upon their face they bore interest at 7 per cent, per annum, but the original declaration did not declare for interest. It alleged that defendant was indebted on the notes, and prayed judgment for the principal and interest of the debt. On March 30, 1896, defendant filed his pleas: (1) That in January, 1895, the plaintiff, a resident of Charleston, S. C. (where the notes appear to have been made), was by a court of competent jurisdiction adjudged to be insane to such extent as to be incapable of managing and controlling his business'or any matter connected therewith. (2) Plaintiff is unmarried and has no family, and defendant,' who is his only brother or immediate relative, was by the judgment referred to made a committee or guardian of the plaintiff, to look after him as well as to manage and control his property; and plaintiff has never since been declared sane, nor has said appointment of defendant as guardian been annulled. (3) The money furnished by plaintiff to defendant was a voluntary gift to improve land known at the time by plaintiff to be the property of defendant’s wife; plaintiff stating that he did not care whether defendant ever paid it back, as he had ample capital without it, and there was none of the family left except him and defendant. (4) Defendant never applied to plaintiff for the loan of this money, neither did he accept it or believe' he was making any contract of loan by which he would be required at any time to repay to his brother the amount so voluntarily furnished; the giving of the notes' sued on was not understood or intended by either of them to be creating a debt which should be paid; and defendant would not have accepted any of the money or' executed and delivered the notes had it-not been for the voluntary offer of plaintiff to let him have'it, with the express understanding and agreement that it was not -to be paid back nor intended as a loan, etc.</p> <p>•' The case was placed on the calendar for trial on August 28, 1896. On Wednesday of that week the- cases set for Friday -were reset for a week later, and the case was actually called and tried on Saturday, September 5th. When so called for -trial, the defendant being absent, his counsel moved for a continuance for want of a certified transcript from the records of the probate court of Charleston county, South Carolina, by which, as he stated, he could show that the plaintiff, prior to the beginning of this suit, had been by that court adjudged a lunatic and thereby incapacitated from taking care of himself or property, and that defendant had by said" judgment been duly and legally appointed the committee or guardian of the person and property of the plaintiff, and still occupied that relation both at the beginning of this suit and at the time of trial. Counsel further stated that he had been informed by his associate counsel residing at Chattanooga, Tennessee, that defendant had a copy of the record of said probate court, showing said judgment and appointment; that upon examination of this copy, he learned that it was not certified in the manner required in order to be admissible as evidence in this case, whereupon he immediately, on August 27 or 28, 1896, prepared a letter to the judge of said probate court, who as he understood from the law of South Carolina was ex officio clerk of his own court, and had defendant to sign the letter, requesting that the judge make out a full and complete transcript of the records of his court showing the aforesaid facts intended to be proved, and to certify the transcript in accordance with the act of Congress making such transcript admissible in the courts of the different States; that a special-delivery stamp was put upon this letter which was mailed, and therein said judge was requested to address the envelope containing the transcript to defendant’s attorney, giving his name and post-office, in time for it to reach the court on the day this case was set for trial, •naming the day, the same being ample time for said transcript to have been prepared and received after the application for it was made; that the transcript had not been received, and without it defendant was not ready for trial, it.being necessary to sustain the first of his pleas already set out; that defendant expected to have this transcript by the next term; and that this application was not made for the purpose of delay, but that the ends of justice might be done. The motion was overruled.</p> <p>The plaintiff offered in evidence what purported to be the original notes sued upon. Defendant’s counsel objected to them, on the ground that they were not the notes declared upon, and the court sustained the objection. Plaintiff’s counsel then offered an amendment to the declaration, declaring for the interest apparently due upon the notes; alleging the time from which interest ran on each, and the rate of the same; further alleging that all of said sums were past due and unpaid at the commencement of suit; and praying judgment for the principal and interest. This amendment was allowed; whereupon defendant’s counsel renewed his motion for continuance, for the reasons, that the making of said amendment materially changed the cause of action from that originally declared upon; that without this amendment plaintiff could not have recovered ; that said amendment was a surprise to him as counsel, and by reason thereof defendant was less prepared for trial than he would have been without said amendment, for the reason that his client was absent, and he as counsel could not without defendant’s presence make the necessary defense to the declaration as amended; that defendant’s presence was not necessary to a successful defense of the case as made by the original' declaration, which was the reason for his absence; and that this application for continuance, was not made for the purpose of delay. The motion was overruled.</p> <p>Plaintiff again tendered in evidence the original notes, and counsel for defendant objected on the ground that the notes as declared upon were alleged to be payable on demand, while the notes tendered in evidence show on their face that they are not payable on demand, but show that the time of payment is indefinite and uncertain, and they are uncertain and ambiguous in this respect, and do not correspond with the pleadings so as to make them admissible. The objection was overruled.</p> <p>After introduction of the notes, plaintiff’s attorney testified that after he received them for collection he presented th.em to defendant for payment; that defendant did not pay them but made some pretext for not doing so; that after this he spoke to defendant several times about paying the notes, and they not being paid, he brought this suit; and that defendant admitted indebtedness and made promises to pay it. The evidence having closed, the court directed a verdict for the plaintiff. Each of the foregoing rulings is assigned as error.</p>

Equitable petition. Before Judge Henry. Floyd superior court. July term, 1896. John W. Howell and others (alleging that they, with J. S., Catherine H., and W. S. Howell, are the heirs at law of Williamson G. Howell deceased) brought their action against the Rome Grocery Company, the Georgia Loan and Trust Company, W. P. Simpson, and J. S., Catherine H., and W. S. Howell.

<p>1. It is, in the trial of an equity case, within the power of the judge, even without a request from either party, to require the jury to render a special verdict upon the issues of fact involved. When a request to this effect is made by either party, after the case is called for trial but before the beginning of the introduction of evidence, it is compulsory upon the judge to pursue this course.</p> <p>2. There was sufficient evidence to warrant the special verdict rendered in the present case; and, construing all together the answers returned by the jury to the questions submitted to them by the judge, the verdict as a whole authorized and required a decree vesting in the plaintiff the title to the undivided two thirds of the tract of land to which the verdict relates, but it did not warrant the entering of a judgment in her favor for any sum of money. Direction is given that the decree entered in the court below be amended accordingly, and that the costs of this writ of error be taxed against the defendant in error.</p>

<p>Complaint for land. Before Judge Harris. Heard superior court. October term, 1896.</p>

Exceptions to auditor’s report. Before Judge Harris. Campbell superior court. February term, 1896. The will of W. J. Ware, dated February 4, 1888, after providing for the payment of debts, contained the following items: “Third.

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

<p>Complaint for damages. Before Judge Beck. Upson superior court. November term, 1896.</p>

<p>Money rule. Before Judge Littlejohn. Macon superior court. November term, 1896.</p>

<p>"Under the facts of the present case, there was no abuse of discretion in granting a second new trial. .</p>

<p>1. As a general rule a bank may assume that a trustee will apply money deposited by him to its proper purposes under the trust, and is not accountable for any misappropriation of trust funds in which it does not partici-</p> <p>. pate; but a bank can not, without incurring liability to the true owner, knowingly appropriate to the satisfaction of a debt due to it by another trust funds deposited with it by him after the creation of such debt.</p> <p>2. Where in this manner a bank improperly appropriates a portion of a trust fund to its own use, it is liable for interest thereon from the time of demand by the true owner and its refusal to pay, and is also liable for interest computed from the same time upon a balance of the identical fund not so appropriated but payment of which was then demanded and re- ■ fused.</p> <p>3. A bank in this State will not be protected in paying a check of a person, who had been lawfully adjudged to be insane and who was in fact insane when the check was drawn. This is true though the fact of insanity was' unknown to the bank at the time of payment and though the adjudication of insanity was made in another State.</p> <p>4Í The grounds of the motion for a new trial based on alleged error in admitting evidence did not disclose what, if any, objections to the same were made at the trial; there was no error in the charges complained of the charge as a whole fairly submitted to the jury the issues involved; the evidence warranted the verdict, and there was no error in denying a new trial.</p>

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

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

<p>Money rule. Before Judge Harris. Coweta superior court. September 29, 1896.</p>

<p>1. When one takes property under a fair claim of right, it is not larceny; and where the fact of such claim is in controversy, the bona tides of the claim in the party taking is a material question for determination by the jury; and it is error, where such question is involved, for the court to charge the jury: “If one commits an act which the law makes criminal and he intends to do that act, whatever his conception be as to whether he is doing right or wrong, or committing a crime, he would be guilty of a criminal offense.”</p> <p>2. Where it was shown that a defendant charged with simple larceny used the following language to the purchaser from him of certain hogs alleged to have been stolen: “Well, if Mr. Lynn [the prosecutor] claims them, let him have them, and we will have no trouble about it and I will make them good,” it was error to charge thereon the law relating to confessions. Such expressions were in no legal sense confessions of guilt, and the treatment of them as such tended to prejudice the case of the defendant.</p>

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

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

<p>Complaint for damages. Before Judge Ross. City court of Macon. September term, 1896.</p> <p>On February 11, 1896, A. B. Small sued Max Cohen for $1,365, alleging that he was injured and damaged by the defendant by reason of the following facts: On November 18,</p> <p>1890, defendant approached him with a note, payable twelve months after its date, to defendant or bearer, for $1,000, and signed G. H. Murray, W. D. Harp, and J. C. Murray; and proposed to sell or discount the note to plaintiff in payment of an amount which G. H. Murray was then indebted to the plaintiff in the sum of $688.03, and an additional advance of $390, defendant then and there stating to plaintiff that he knew the note was all right, and that the same was good. On this representation made to him by defendant, he then and there advanced to Cohen on said note $390, and accepted the note in further consideration of sight hundred and eighty-eight dollars and three cents indebtedness of G. H. Murray. The note becoming due and the parties failing to pay the same, plaintiff, on April' 17, 1893, filed a suit in the superior court of Macon county, for the recovery of the sum due on the note. On November 15, 1893, W. D. Harp filed a plea of non est factum to the suit on the note. On May 8, 1893, J. C. Murray also filed a plea of non est factum. On May 12, 1893, G. H. Murray filed a plea that he did not owe the note. When the case was called for trial at the November term, 1894, Cohen was subpoenaed and called as a witness to prove the factum of the note, when he stated to the plaintiff's attorneys that he could not swear anything that would be of benefit to the plaintiff, and that he could not prove that the parties who were pleading non est factum had executed the note. Whereupon plaintiff, for want of sufficient proof to make out a prima facie case against the defendant, had his case dismissed. At the time Cohen sold and delivered the note to the plaintiff, he stated in terms that he knew the note to be all right, that J. C. Murray and W. D. Harp were good, and that it was a bona fide note, made by the parties; and the plaintiff, relying upon this statement, advanced the money to him as heretofore stated. This statement was untrue and made to deceive and defraud plaintiff, and did defraud him. The plaintiff did not know of the falsity of this statement until said November term, 1894, of Macon superior court, when Cohen failed and refused to establish the fact that the note was bona fide given to him by the parties whose names were signed thereto. Plaintiff has incurred $15 as costs, and $250 as attorney’s fees, in his effort to prosecute said suit to judgment, and which he is compelled to-pay in bringing this suit against Cohen.</p> <p>Cohen answered, denying the allegations of the petition. Upon the trial a nonsuit was granted on the grounds, that the testimony showed that the cause was barred by the statute of limitations; and that the proof varied from the allegations. •</p> <p>The following appeared from the evidence: On November 18, 1890, G. PI. Murray brought to the plaintiff’s office the promissory note described in the declaration, to get plaintiff to discount it. (Across its face were written the names G. J. Harp and J. M. Meadows.) Plaintiff at first declined to have anything to do with the note. Murray said that he had a party with him, and plaintiff told him to bring him in. Cohen came into the office a few minutes later. When Cohen came-in the note was lying on the desk. According to the testimony of one of the witnesses, plaintiff said to Cohen, in substance, “Mr. Murray tells me you are here to get this note.discounted,” and Cohen said, “Yes, that is my business in Macon.” According to the testimony of the plaintiff himself, he did not tell Cohen this, but Cohen said, “Plere is a note that Mr. Murray wants to get discounted.” Plaintiff told him he could not get it discounted, that nobody in town would discount it. Cohen said that he could get the money, that he had a private party (naming him) who would discount it for $1,000, and if plaintiff would give Murray a check for $390, he (Cohen) would bring back the $1,000 to reimburse plaintiff for the check; and also pay the plaintiff an account which Murray owed plaintiff; the' amount of which was about $600, and which Murray had come to plaintiff for the purpose of paying. Cohen said the note was perfectly good and “carried it on its face,” and that the parties were all right. A check of the plaintiff for $390, payable to the order of Murray, was then given to Murray in the presence of Cohen, Cohen having told the plaintiff to draw the check to Murray’s order; and Cohen and Murray left the office together. Cohen was to bring back the money in an hour’s time, or return the check to the plaintiff The check was not delivered to Murray on Murray’s credit, but it was given upon the representations and assurances of Cohen alone. Until Cohen came in, the plaintiff had declined to have anything to do with the paper; and he advanced the money on Cohen’s promises alone. The check was written at- Cohen’s suggestion, and on his continued, absolute and persistent promises that he would bring the money back in an hour’s time ánd would return the check to the plaintiff. As Cohen and Murray started out of the store with the check, plaintiff’s brother said to Cohen, “You have forgotten the note,” and plaintiff demanded that Cohen take the note, but Cohen said “Leave it there,”, that he would come back in a few minutes, or in a little while. Cohen did not come back. The transaction above stated took place in the morning. In the afternoon the plaintiff saw Cohen in the street, and Cohen said he had been trying to get the money and could not get it even on a United States bond, that he had plenty of United States bonds. Plaintiff told Cohen he would take the U. S. bond and hold it until Cohen could get the money. Cohen said he would go right home and attend to it. Cohen did not come back until the grand jury found a true bill against him. The check was paid. The money has never been paid to the plaintiff. A short while after the check was drawn he was tendered in payment of the check $390 with interest from the time he advanced it, and a return of the note was at the same time demanded of him, but he declined to receive the money, on the ground that it would be compounding a felony. The plaintiff thinks he said he would return the note if the principal of the note was paid to him. It was no part of the plaintiff’s contract with Murray that the note should be held as collateral for the debt- Murray owed him. It was not left with plaintiff as collateral security. He had no property in the note at the time Cohen and Murray left it at his office. They did not tell him to keep it as collateral security. Plaintiff has never been the holder of it of his own will or consent. He did not lend or advance money on it. He took care of it to see what could be made out it. Plaintiff brought suit on the note in Macon superior court on April 17, 1893. He discovered after the suit had been filed that he could not collect anything out of Murray and other parties to the note. Before he brought suit he made an effort to collect the money from Cohen. He did not sue the claim against Cohen sooner, probably because he (plaintiff) was trying to get the money out of the note for his use and apply it to his interest. Neither Cohen nor Murray asked nor authorized him to do that. Neither asked nor authorized hifn to sue the note. He did not ask any man whose name was written on the note for payment, unless Murray may have been written to. The other parties were written to, and they would not give him any satisfaction. A witness who had been of counsel in the suit upon the note testified that the suit was dismissed because counsel could not prove the execution of the note. His recollection is that after the pleas had been filed, he explained to Cohen the nature of the defense that had been filed, and that it was necessary to prove the execution of the note, and called on Cohen to furnish proofs so as to overcome the pleas filed by the defendant. Cohen said he knew nothing that would do the plaintiff any good. He thinks Cohen said he could be of no service to the plaintiff. The only effort he made as plaintiff’s counsel to establish the genuineness of the signatures to the note was to ask Cohen what he knew about it, and Cohen said he knew nothing that would help him, and he (counsel) gathered from what he stated that he had seen nobody sign the note. After the conversation took place the case was continued, and at a subsequent term, when this witness was not present, it was dismissed. Witness does not think that Cohen was subpoenaed as a witness for the plaintiff. He thinks a note signed G. H. Murray, J. C. Murray and G. J. Harp for $1,000 was good in 1890, but does not consider it good now. W. T. Harp is in possession of a good deal of property, but it is all in his wife’s name, and nothing could be made out of him. Witness could not say whether “they” were paying their debts in 1890. For several years past they have been sued frequently and no money made out of them.</p>

<p>1. A promissory note given for the purchase-money of land, payable in instalments, but stipulating that in a certain event, at the option of the payee, the contract should be rescinded and the maker -be due a certain amount as rent, is, on the trial of an issue formed on a distress warrant for rent of the land, not a paper collaterally material to the case so as to be admissible as evidence without proof of execution; and where the instrument has been attested by a witness, it is error to admit the same over the objection of the defendant, without proof of its execution by the subscribing witness, or legally accounting for his non-production, or else proving its execution by the testimony of the maker.</p> <p>2. Where an affidavit made to obtain a distress warrant alleged that the land for which the rent was due was situated in one county, it was error at the trial to allow an amendment striking out the county first alleged and inserting another county, it not appearing from the pleadings or otherwise that the land described in the amendment was the same land referred to in the original affidavit.</p>

<p>The verdict in this case being unsupported by any evidence, it was contrary to law, and ought to have been set aside. Atkinson, X, dissenting.</p>

<p>Action for damages. Before Judge Hart. Laurens superior court. . December 14, 1896.</p> <p>Brantley brought suit against Hicks' for malicious prosecution.-' 1 Hicks pleaded justification, and set up that in prosecuting the plaintiff he had acted under the advice of the solicitor-general, after full disclosure of the truth of the case. The trial resulted in a verdict in favor of the plaintiff for $400; The defendant made a motion for a new trial, which was overruled, and he excepted. The motion alleged, that the verdict was. contrary to law and the evidence, and that the court erred in refusing to charge as follows :</p> <p>“If the defendant made to the solicitor-general a truthful statement of the evidence in the case, giving the names of witnesses wh.0 furnished him the information,-and the solicitor-general made a mistake, either in classifying of the offense or in advising that any offense had been committed-, the defendant'Dr: Hicks is not responsible for the mistake of the solicitor-general, and if he acted in good faith and without malice, and upon the advice of the solicitor-general, the law relieves him from all liability.</p> <p>“The advice of counsel, though of itself no protection to the defendant in a suit for a malicious prosecution, is a circumstance tending to show bona fide absence of malice and the existence of probable cause. That of itself, viz. the advice of counsel, can not be a complete protection to the defendant, but goes before the jury as a circumstance which may, according to. the facts of each case, relieve the defendant or make the damages nominal, or mitigate them more or less.</p> <p>“It is conceded that the prosecution upon which the present action is based was by indictment; and where an indictment is found, this of itself is prima facie evidence of probable cause, but it may be rebutted by other testimony showing that there was no probable cause for the prosecution. However, the bare fact of the acquittal of the defendant, without more, is insufficient to -remove the prima facie presumption of probable cause raised by the return of the indictment.”</p> <p>It appears from the evidence, that the plaintiff was indicted for simple larceny, the property alleged to have been taken being a bale of cotton containing 450 .pounds of lint-cotton of the value of $50 “of the personal goods of Henry Hicks and John D. Page.” At the time when the indictment was found, Hicks went to the solicitor-general and stated to him, in substance, that he had rented land to Brantley, who was to pay him a bale of cotton weighing 450 pounds, to be delivered at Blackshear’s mill; that he received word through Hicks’s son Tom that Brantley had left the cotton for him at the mill, and for him to send and get it; that J. D. Horn told Hicks that Brantley had moved the cotton away in the nighttime, and when he (Hicks) sent for the cotton it was not there. He asked the solicitor-general’s advice. According to the testimony of the solicitor-general, Hicks further stated that Brantley had carried off the cotton on account of damage done him by stock, and that he (Brantley) had told Hicks that he had got the cotton and sold it. The solicitor-general, after hearing. Hicks’s' statement, advised him to prosecute Brantley for larceny; -and prepared an indictment and sent it before the grand jury. Hicks testified that he did not tell the solicitor-general to prepare the indictment for any particular offense, and did not know for what offense it was drawn. He appeared also before the grand jury and there testified to his contract with Brantley as lie had stated it to the solicitor-general; that he had received word through his son Tom and a negro that the cotton had been delivered at the mill by Brantley, and to come and get it; and that he went to get it and it was not there. J. D. Horn testified before the grand jury, that Brantley went in the night and secretly hauled away the bale of cotton. A member of the grand jury testified that it was mainly upon this testimony that a true bill was returned. Brantley was tried and was acquitted; after which he instituted the present suit. He testified, that when he applied to Hicks to rent the land lie told Hicks that he would give him a bale of cotton if he would make a good fence, and that Hicks said he would, but did not make the fence. He had a bad fence. He saw Hicks in the fall of the year and asked him to fix the fence, and he failed and refused to do so. Cattle were in the field all the year, and the stock ate about two bales of his cotton. In the fall of the year, or early spring of the next year, Hicks asked him about the settlement of his rent, and he told Hicks that when he settled for the damages he (Brantley) would pay the rent. He had five bales of cotton ginned at Blackshear’s mill. Four bales of the cotton were hauled off for him by Dick Blaekshear, and he left one bale to pay Guyton for a guano debt, and Guy-ton got it He never had any settlement with Hicks for his rent. He sent Hicks word by Hicks’s son Tom to meet him at Blackshear’s mill to have a settlement about the rent, but he did'not come. Plaintiff paid out in defense of the criminal case $50 attorney’s fees, and attended court eight or ten times, and his expenses were about $5 per day. According to the defendant’s testimony, he made no agreement to fix up the fence for Brantley, and the facts were as stated by him to the solicitor-general and the grand jury. The land was rented by him for himself and John D. Page. He testified that he had no malice against Brantley, and did not institute the proseeution from any malicious motive. Before the prosecution, was instituted, he told Brantley he must have the money or he would lay the matter before the grand jury. He prosecuted Brantley because he did not collect his rent. Thomas-Hicks testified that Brantley told him that a bale of cotton had been left for his father at Blackshear’s mill, and to tell his father to come and get it; that it was rent-cotton. Witness-told him to leave it, and he said all right; and witness communicated this to his father. His father went for it and could not find it. Thomas Blackshear testified that he ginned on one occasion five bales of cotton for Brantley and Brantley hired witness’s brother Dick to haul four bales to town. Brantley stayed at the mill, saying he expected Hicks to be over for a settlement ; that he had the cotton ready for him. He stayed there all day and came back the next day, but Hicks did not come. Brantley said he was ready to turn over to Hicks the rent-cotton, if Hicks would satisfy him for damages done to his cotton by stock.</p>

Injunction. Before Judge Hart. Morgan county. June 1, • 1897. On May 18, 1897, H. G. Lewis, solicitor-general, brought his information and petition in behalf of the State against the sheriff and deputy-sheriff of Morgan county, and Chambers and Cochran, for injunction. The court granted an injunction, and defendants excepted.

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

<p>1. The teri'itory added to the City of Columbus by the act of 1887, providing for the extension of its corporate limits, became, after that act went into effect, a part of the city for all municipal purposes; and notwithstanding the provision in the fourth section to the effect that, for twenty years from the passage of the act, only such sums as may arise from taxes assessed in that territory shall be expended in the maintenance, improvement and protection thereof, unless in the discretion of the mayor and council it may be desired to so expend a greater sum from the general treasury of the city, it is nevertheless the duty of the municipal authorities to keep the streets and sidewalks of the annexed territory in a safe condition for public use, and the fact that they did not have funds available for this purpose derived from the taxes assessed therein will not be held a sufficient excuse for a failure in this respect.</p> <p>2. The duty of construing a pertinent city ordinance which has been introduced in evidence, and of explaining its meaning to the jury, devolves upon the judge; and a request in effect asking that its construction be submitted to them was properly refused.</p> <p>3. An ordinance making it the duty of policemen to report to the lieutenants of police all footways, bridges, and sidewalks requiring repairs, necessarily renders it incumbent on the lieutenants to report .upon the same-to the authorities whose duty it is to have the needed repairs made; and therefore under such an ordinance notice to a policeman or a lieutenant of a defective or dangerous place in a sidewalk is notice to the city.</p> <p>4. A charge upon a mortality-table, which in substance instructed the jury to ascertain the yearly amount of the plaintiff’s diminished capacity to earn money, if any, multiply it by the number of years he might be expected to live, and then reduce the gross amount to present value, was-not erroneous; .the charge as to this table being in other respects appropriate, and on the whole sufficiently guarding the rights of the defendant.</p> <p>5. There was no error in admitting in evidence the testimony of a deceased' witness as embodied in an agreed brief of the evidence introduced at a former trial of the same case. This would not, however, prevent the opposite party from proving additionally other testimony given by this-witness at that trial and not included in the brief.</p> <p>6. Evidence that the “authorities at the court-house” were notified of a. defect in a city sidewalk did not, of course, necessarily prove notice to the municipal authorities, but was admissible to be considered in connection with all other evidence on the subject of notice. If the jury believed that the “authorities” referred to were the county officers, they clearly understood that this particular proof was of no value to the plaintiff.</p> <p>(a) The judge’s remark that he had not been notified of the defect, made in mere pleasantry while the objection to the above evidence was being argued, was harmless and presented no matter for serious exception.</p> <p>7. A book purporting to contain the official minutes of a city council was, in the absence of the clerk of council for providential cause, he being the proper custodian of the minutes and records kept by the council, admissible in evidence upon proof showing that the book in question had been brought from the clerk’s office by the city treasurer who was acting in the clerk’s place during his absence, and that the official signature of the clerk appeared upon the pages of the book in connection with what purported to be the proceedings of the council.</p> <p>8. In order to authorize the setting aside of a verdict upon the ground that it was arrived at by chance, it must affirmatively appear that the jurors bound themselves in advance to arrive at the verdict in this manner, and that they in fact did so. This did not in the present case appear with sufficient certainty to authorize this court to overrule the discretion of the trial judge in declining to grant a new trial on that ground.</p> <p>Lumpkin, P. J., dissenting as to the last note. Proof showing that eleven small pieces of paper upon which were written amounts varying from $100 to $5,000 were found in the jury-room after the verdict was rendered, together with another piece of paper upon which like amounts and one other amount were written down, added and divided by twelve, giving as a result $2,537.50 (this being the precise amount of the verdict), in connection with the fact that though the jurors were competent in support of their verdict to explain these facts, not one of them was called and sworn to do so, makes a prima facie case that the verdict was arrived at by chance and under an agreement to fix its amount in the manner indicated; and this being so, it ought to have been set aside.</p>

Action for damages. Before Judge Kimsey. Hall superior court. July term, 1896. Charles Morse sued the railway company for expelling him from its passenger-train. A nonsuit was granted, and he excepted.

Action for damages. Before Judge Milner. Gordon superior court. August term, 1896. The holder of a ticket for transportation from Chicago to Atlanta and return over connecting lines of railway, was refused passage on the ticket upon a train of the Southern Railway Co., one of the connecting lines, and on'his refusal to pay fare or. leave the train, was ejected at a station in Gordon county. He brought suit for damages.

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

<p>Equitable petition, etc. Before Judge Felton. Bibb superior court. November term, 1895.</p>

<p>On application for mandamus nisi.</p> <p>1. The Supreme Court will not by mandamus compel a judge of the superior court to certify a bill of exceptions assigning error upon his refusal to entertain an extraordinary motion for a new trial, based solely upon the ground of newly discovered evidence, when it appears that such evidence could not be legally admitted in case a new trial should be ordered.</p> <p>2. It would not, in a trial for murder, be competent for the accused to introduce evidence of a declaration by the deceased, not communicated to the accused before the homicide, to the effect that the deceased had committed upon the wife of the accused a felonious criminal assault.</p> <p>Indictment for murder. Before Judge Candler. DeKalb superior court. Special term, April, 1897.</p>

Indictment for robbery. Before Judge Candler. Fulton .superior court. March term, 1897. The indictment charged, that on February 15, 1897, Ben Christie, Lem Bone and Julius Bone wrongfully and fraudulently, by force and intimidation, took from the person of Charles Klassett, without his consent, $12.65 in money and a watch. Christie elected to sever, and the Bones were placed on trial and found guilty, with a recommendation that they be punished'as for a misdemeanor.

Complaint on account. Before Judge Felton. Bibb superior court. April term, 1896. John Flanagan and Dennis Flanagan were sued by Scott upon an open account made out to “John Flanagan & Son.” Defendant pleaded, that plaintiff sold to Dennis Flanagan intoxicating liquor while he was intoxicated, during the year the account was made, at several different times, and has charged him large sums which defendant did not promise to pay or become obligated for.

<p>1. Under a deed bounding the land therein conveyed by an artificial pond which had been in existence for more than forty years, and which had thus become a permanent body of water and was still being kept up and maintained as such, its waters however ebbing and flowing from time to-time so as to leave a margin of land between its high and low water marks, the line of the land so conveyed did not extend to the thread of the stream from whose waters the pond was formed, b.ut only to the low-water mark of the pond at the date of the execution of the deed.</p> <p>2 In.view of the evidence introduced at the trial, the court erred in adjudging, as matter of law, that the true boundary between the contending parties was the high-water mark of the pond as it existed on the 15th . day of August, 1883.</p> <p>3. The case should be tried again, in the light of the law as announced in the first headnote; and at the next hearing it can be investigated and. determined whether or not, for any reason depending upon the partioular facts as then made to appear, the high-water mark, rather than the low-water mark, should he treated as the true dividing line between the possessions of the plaintiff and the defendant.</p> <p>4. In no event, under the facts appearing in the record now before this court, can the plaintiff, as against the defendant, claim title to the additional land covered by water in consequence of the raising of the dam after the present litigation began.</p>

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

Levy and claim. Before Judge Sheffield. Randolph superior court. May term, 1896. An execution in favor of Kiser & Co. v. Dozier was levied,, and he interposed a claim as head of a family, alleging that-he held the property for them, the same having been purchased with proceeds of homestead property. There was a verdict in his favor, and the plaintiffs’ motion for a new trial was overruled.

Action for damages. Before Judge Gamble. Washington superior court. March term, 1896. Tompkins sued the Augusta Southern R. R. Co., on account of being illegally .ejected from its train on which he was a passenger. The court granted a nonsuit on the ground that his right of action was against the Sandersville & Tennille R. R. Co., and not against the defendant.

Indictment for receiving stolen goods. Before. Judge Candler. Fulton superior court. March term, 1897.

<p>1. An injunction will, in a meritorious case, lie at the instance of a wife who is suing her husband for a divorce on the grounds of cruel treatment and habitual intoxication, to restrain him not only from interfering with her property, but also from going into her dwelling-house and eating and sleeping therein over her protest and against her consent.</p> <p>2. In the present case the court committed at the interlocutory hearing numerous errors in admitting in evidence against the plaintiff testimony which was palpably hearsay, which consisted of mere conclusions of the witness, and which was otherwise irrelevant and inadmissible.</p>

<p>1. An escrow obtained from the depositary by a fraud practiced upon him by the grantee who has not performed the conditions upon which delivery is to be made, the depositary being innocent of any wrong or bad faith, passes no title either to the grantee or to an innocent purchaser from the latter.</p> <p>2. If, however, the grantor, after such improper delivery, ratifies the same, the delivery is effectual to pass title from the grantor. Whether or not in the present case there was ratification, as claimed, was a question which the judge ought to have submitted to the jury, instead of solving himself by granting a nonsuit.</p> <p>3. “A grantor can not deliver a deed to a grantee, or his attorney, as an escrow. Such a delivery would be equivalent to adding a parol condition to the instrument. To make the deed an escrow, it should be delivered to a third person, to be by him delivered to the grantee upon the performance of any required condition.” The agency implied in the above quoted language is an agency, in behalf of the grantee, to obtain possession of the instrument for the latter; because in a broad sense every depositary of an escrow is the agent of both parties. Whether in the present case the depositary was or was not the agent of the grantee named in the escrow, to procure its delivery from the maker, was also a question for the jury.</p> <p>4. In view of the law laid down in the first headnote, the question of possession in this case is immaterial, for the reason that the parties claiming under the grantee named in the escrow can not he protected unless either the grantor ratified its delivery, or the depositary was the grantee’s agent to procure delivery.</p>

Foreclosure of lien. Before Judge Henry. Floyd superior court. July term, 1896. On March 7, 1893, Johnson filed suit against McCurry to foreclose a lien for material furnished in the construction of a house. McCurry was duly served, but made no appearance or defense before the adjournment of the return term of the suit, and upon the call of the appearance-docket the case was marked in default. The name of Henry Walker appeared on the docket as sole counsel for plaintiff.

Action for damages. Before Judge Harris. Coweta superior court. September term, 1896. Cole sued the railroad company on account of mental suffering endured by him from the conduct of its servant toward him while he was a passenger on its train. The declaration was dismissed on demurrer for want of a cause of action. It appears, that plaintiff was a passenger on an excursion-train on which were two conductors.

<p>1. Under the decision of this court in Montgomery v. Hunt, 93 Ga. 438, the defendant in an action upon a promissory note payable to the plaintiff or bearer is entitled to open and conclude, when by his plea he admits the execution of the note sued on and that .the plaintiff is the legal holder of the same.</p> <p>2. Thei’e was no error in overruling an objection to the admissibility of evidence on the ground that “there was better evidence,” it not being stated, at the time of making the objection, of what the “better evidence” consisted.</p> <p>3. The verdict for the defendant upon his plea of recoupment being palpably wrong, in that the sum found was totally unwarranted by the evidence, the certiorari ought to have been sustained and a new trial ordered.</p>

<p>1. Though a traveler upon a public highway, in approaching a railroad-crossing, may not observe that amount of care and diligence which would be exercised under like circumstances by an ordinarily prudent person, he is not necessarily precluded from recovering for injuries to his person or property, received on the crossing, if, after it is apparent that the engineer of the company is disobeying the provisions of section 2222 of the Civil Code, he then exercises ordinary care and diligence in endeavoring to escape the consequences of the company’s negligence.</p> <p>2. The charge complained of in the present case was substantially in accord with the law as above announced, and the evidence warranted the verdict.</p>

Probate of will-—appeal. Before Judge Lumpkin. Fulton superior court. September term, 1896. Jack J. Spalding, as executor, offered a paper for probate as the will of Catherine T. Flynn.

Attachment. Before Judge Harris. Carroll superior court. January 6, 1897. J. N. Pope sued out an attachment against W. D. Dickson, on the ground that he was about to remove without the limits of the county. Defendant traversed this ground; and to the declaration of plaintiff, for recovery on notes, defendant filed pleas of not indebted, etc. He died pending the suit, and his administrator was made a party.

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

Certiorari. Before Judge Falligant. Chatham superior court. March term, 1896. Verdict and judgment were rendered in a magistrate’s court against O’Keefe in favor of Cotton. On September Í2, 1895, within thirty days of that judgment, a writ of certiorari was granted O’Keefe, but notice of the sanction of the certiorari was not given until November 27, 1895, being only five days before the sitting of the court to which the certiorari was returnable.

Injunction. Before Judge Falligant. Chatham county. June 16, 1896. Gresham brought his petition alleging that the city marshal has levied a tax execution on property of petitioner, to collect $250 alleged to be due the city by him as a specific tax or license upon him as a “person, other than a pawnbroker, engaged in the business of lending money on personal property” in Savannah; and is about to sell the property levied on.

Appeal. Before Judge Reese. Hart superior court. March term, 1896. On December 11, 1895, J. Q. A. Black sued Holland et al.. upon a promissory note not under seal, dated June 2, 1874,. due December 25, 1874, and bearing unsigned credits for sundry amounts paid on December 7, 1880, February 13, 1886, January 25, 1890, and January 6, 1894.

<p>Complaint on note. Before Judge Milner. Murray superior court. February term, 1896.</p> <p>An action against John H. Loughridge upon a promissory note for $150, and interest, dated April 7, 1890, and due December 1,1890, payable to R. C. Shelley or order, and indorsed in blank by the payee, was brought by E. Wilson & Co. The defendant pleaded: (1) That the note is not a negotiable promissory note entitled to the privileges of negotiable paper. (2) Plaintiffs were not bona fide' purchasers. (3) Thé note was paid in full, when it was due, to R. C. Shelley, the payee. At the trial the plaintiffs introduced the note in evidence, and closed. In addition to the indorsement of R. C. Shelley, the note had on it the following indorsements which had been canceled: “Endorsements guaranteed. Pay J. H. Rathburn, cashier, or order, for collection for Boylston National Bank of Boston, D. S. Waterman, cashier.” “E. Wilson & Co., by their atty., Thos. C. Bachelder.”</p> <p>Defendant testified: The note sued on was given by him, together with another note for like amount and due one year later, for a piano; about the time the note sued on fell due he received a letter, which has been lost, from R. C. Shelley, at Chattanooga, Tenn., to send him the money on the note; he gave the money to C. L. Terry, through whom he had bought the piano, to send to Shelley; never heard anything more of this note till about the last of June, 1892; this was more than ■eighteen months after the note was due. When the second note fell due, about the 1st of December, 1891, he received notice from the First National Bank of Chattanooga that the note was thefe for collection; he sent the money there and paid it off through a certificate of deposit in the First National Bank of Dalton, payable to J. H. Rathburn, cashier of the First National Bank of Chattanooga. About the last of June, 1892, the note nowin suit was sent to the First National Bank of Dalton, with a draft on B. F. C. Loughridge, witness’s brother, for the amount of the note; this was the first time that witness ever heard that plaintiff or any other person claimed any interest in the note except the payee himself.—L. C. Terry testified, that he had acted as agent for Shelley in selling the piano to Loughridge, and that when the first note fell due Loughridge came to him with $150 to send to Shelley in payment of the note. With this money he purchased a check for $140 from Trammell Starr and sent the same to Shelley at Chattanooga. The other $10.00 was witness’s commission for the sale of the piano; never heard anything more about the matter till about the last of June, 1892, when he learned that the note had been sent on for collection, as stated by Loughridge. Shelley lived at Chattanooga, Tenn. Witness wrote Shelley at Chattanooga, but got no answer for some time; possibly he may have written twice; when he heard from him he was in Kentucky, traveling for a music-house in Nashville. In this letter written from Kentucky, Shelley acknowledged receipt of the money; this letter was here at the first trial of the case, but has been mislaid since. Witness has never heard from Shelley since getting this letter.—Trammell Starr testified, that he gave Terry the check as above testified, and the same was returned to him as paid; presumes that Shelley’s indorsement was on it, but does not remember; it could not have been paid without it; there were some bank indorsements, but he does not remember what bank.—R. I. Peak testified, that he was cashier of the First National Bank of Dalton; that about December 1, 1891, some person, Dr. Harris he thought, deposited with him for John H. Loughridge $150.00, and took a certified check of deposit for that amount, payable to J. H. Rathburn, cashier of the First National Bank of Chattanooga, which in a few days thereafter was paid, his bank giving credit to the First National Bank of Chattanooga for that amount; that some days after the 11th of June, 1892, the note now sued on was received by the bank of which he was cashier from Thomas C. Bachelder, with a draft attached for the amount of the note, on B. F: C. Loughridge at Dunn, Ga.; that he wrote Loughridge, payment was refused, and he returned the note to Bachelder the 28th of June, 1892. Defendant then read in evidence a note, an exact copy of the one here sued on, except that it was due December 1, 1891, and is described as the second of the series given for the purchase of the instrument. This note was indorsed: “R. C. Shelley.” “Endorsements guaranteed. Pay 3d National Bank, N. Y., or order, for -coll. for acct. of Boylston National Bank of Boston. D. S. Waterman, cashier.” “Pay to the order of First National Bank, Chattanooga, for coll, for acct. of 3d National Bank, N. Y., H. Chapin Jr., cashier.”—R. J. McCamy testified, that he had investigated the laws of Tennessee on one point, both in •the books and in trying a case there; the law in Tennessee is, ■that where the plaintiff, claiming to be the holder, for value and ■before due, of a negotiable paper, sues on the same, the defend•ant can make a prima facie defense by showing anything that would defeat the payee’s right to recover; when this is done the burden is on plaintiff to show that he is a bona fide holder for value before due and without notice of defense. The law is not the same in Georgia. He is not a Tennessee lawyer.</p> <p>The court directed a verdict for plaintiffs, and defendant ex-cepted.</p>

Action for damages. Before Judge Henry. Floyd superior -court. January term, 1896. Mrs. Moon sued the receivers of the E. T., V. & G. Railway Ho., for the homicide of her husband. A nonsuit was granted, and she excepted. The following facts appear from the testimony: The E. T. (defendants’) railroad and the C., R. & 0. railroad cross each other about a quarter of a mile from the spot where Moon was standing on the first named, when ho was struck by the engine and killed.

Petition for injunction. Before Judge Candler. DeKalb county. January 30, 1897.

Indictment for murder. Before Judge Hutchins. Gwinnett superior court. February term, 1897. In the first count the indictment charged Zeke Ward, Jim Ward, and Lee Watkins with the murder of J. C. Cook, by stabbing him in the back. In the second count Jim Ward and Lee Watkins were charged as principals in the second degree, by aiding and abetting Zeke Ward in the murder.

<p>Petition for receiver. Before Judge Candler. DeKalb county. January 30, 1897.</p> <p>This case arises upon the same facts as in that just preceding, except that the prayer is for receiver of the sums paid by the plaintiffs on account of the special levy in question, they claiming to have made such payment in ignorance of the want of authority in defendants to make the levy and collect the tax ; .and for final decree that said sums be refunded to plaintiffs.</p>

Certiorari. Before Alfred Herrington, judge pro hac vice. Montgomery superior court. October term, 1896. Francis Adams brought suit in a justice’s court against Everett McLeod as principal, and James McNatt and M. D. Hughes as securities, upon a contract in writing as follows: “Georgia, Montgomery County: Know all men by these presents, that we,.

Action for damages. Before Judge Milner. Whitfield superior court. December 16, 1896. Collum made affidavit and caused a warrant to be issued thereon by a justice of the peace of Murray county, charging Turner with being “guilty of lying and misrepresentation.” Turner was arrested thereunder and carried before a justice of the peace of Whitfield county, who discharged him.

Equitable petition. Before Judge Felton. Houston superior court. October term, 1896. Held: which was levied, September 3, 1895, upon said land, and in the levy and advertisement of sale the execution was alleged to be the property of petitioner.

<p>Distress warrant. Before Judge Felton. Bibb superior court. November term, 1896.</p> <p>A distress warrant was sued out and leviéd on personalty; and defendant filed a counter-affidavit. Two months thereafter, he gave to the levying officer a bond conditioned to have-the property forthcoming to answer any judgment that might be rendered in said cause. At the trial, plaintiff moved to-dismiss the counter-affidavit, because no bond for the eventual condemnation-money had been given. Defendant contended that the property yet remained in the hands of the levying officer, -though deposited with defendant. The judge ruled that the counter-affidavit should have alleged that the property remained with that officer; whereupon defendant moved to amend his counter-affidavit, by so alleging; but the amendment was rejected, and the motion to dismiss was sustained,</p>

Equitable petition, etc. Before Judge Callaway. Richmond superior court. October term, 1896.

Action for damages. Before Judge Milner. Catoosa superior court. August term, 1896. Barclay sued the railroad company on account of personal injury sustained by him from a fall from his wagon. He was driving two mules and was sitting on the top of a load of hay with which the wagon was loaded. He was in a road parallel with and about thirty to forty feet from the railroad-track, going in the same direction with a freight-train which came slowly by.

<p>Equitable petition. Before Judge Callaway. Richmond superior court. April 6, 1896.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. September term, 1895.</p>

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

<p>Motion to set aside judgment. Before Judge CandlerDeKalb superior court. April 17, 1896.</p>

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

<p>Motion for new trial. Before Judge Candler. DeKalb superior court. February term, 1896.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. November term, 1895.</p>

<p>Appeal. Before Judge Falligant. Effingham superior court. May term, 1896.</p>

<p>Dispossessory warrant. Before Judge Gamble. Tattnall •superior court. April term, 1896.</p>

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

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

<p>Application for mandamus nisi.</p>

<p>Complaint on note. Before Judge Felton. Bibb superior court. April term, 1896.</p>

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

<p>Action for damages. Before Judge Reese. Madison superior court. September term, 1895.</p>

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

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

<p>Action for damages. Before Judge Reese. Madison superior court. Marcli term, 1896.</p>

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

<p>Complaint on note—certiorari. Before Judge Hutchins. Clarke superior court. April term, 1896.</p>

<p>Complaint. Before Judge Henry. Floyd superior court. March term, 1896.</p>

<p>Certiorari. Before Judge Gober. Milton superior court. February term, 1896.</p>

<p>Equitable petition. Before Judge Hart. Baldwin superior court. January term, 1896.</p>

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

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

<p>Petition for discharge. Before-Judge Fish. Sumter county. October 17, 1896.</p>

<p>Injunction. Before Judge Smith. Wilcox county. January 14, 1897.</p>

<p>Petition for injunction. Before Judge Sweat. Ware county. January 30, 1897.</p>

<p>Affidavit of illegality. Before Judge Hart. Laurens superior court. July term, 1896.</p>

<p>Petition forcertiorari. Before Judge Butt. Muscogee county. February 10, 1896.</p>

<p>Certiorari. Before Judge Butt. Muscogee superior court. November term, 1895.</p>

<p>Injunction. Before Judge Smith. Wilcox county. January 14, 1897.</p>

<p>Complaint on note. Before Judge Butt. Chattahoochee superior court. March term, 1896.</p>

<p>Attachment for contempt. Before Judge Smith. Wilcox county. January 25, 1897.</p>

<p>Levy and claim. Before Judge Butt. Talbot superior court. September term, 1895.</p>

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

<p>Affidavit of illegality. Before Judge Sheffield. Early superior court. April term, 1896.</p>

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

<p>Action on insurance policy. Before Judge Sheffield. Terrell superior court. May term, 1896.</p>

<p>Exceptions to auditor’s report. Before Judge Felton. Bibb superior court. November term, 1895.</p>

<p>Levy and claim. Before Judge Gober. Forsyth superior court. February term, 1896.</p>

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

<p>Indictment for adultery. Before Judge Reese. Glascock superior court. February term, 1897.</p>

<p>Certiorari. Before Judge Hutchins. Gwinnett superior court. March 13, 1897.</p>

<p>Indictment for assault to rape. Before Judge Butt. Chattahoochee superior'court. September term, 1896.</p>

<p>Indictment for murder. Before Judge Hart. Baldwin superior court. January term, 1897.</p>

<p>Indictment for assault to murder. Before Judge Reese. Hancock superior court. February term, 1897.</p>

<p>Indictment for keeping a lewd house. Before Judge Berry. Criminal court of Atlanta. March term, 1897.</p>

<p>Accusation of carrying concealed weapon. Before Judge Berry. Criminal court of Atlanta. April term, 1897.</p>

<p>Indictment for murder. Before Judge Harris. Meriwretlier superior court. February term, 1897.</p>

<p>Indictment for arson. Before Judge Littlejohn. Schley superior court. April term, 1897.</p>

<p>Injunction and receiver. Before Judge Sheffield. Early county. March 17, 1897.</p>

<p>Indictment for larceny. Before Judge Eve. City court of Richmond county. April term, 1897.</p>

<p>Attachment, etc. Before Judge Eish. Dooly superior court. September term, 1896.</p>

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

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

<p>Petition for injunction, etc. Before Judge Lumpkin. Fulton county.' March 11, 1897.</p>

<p>Petition for injunction, etc. Before Judge Lumpkin. Fulton county. May 1, 1897.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. May 12, 1897.</p>

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

<p>Action for damages. Before Judge Eve. City court of Richmond county. May term, 1896.</p>

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

<p>Application for alimony. Before Judge Reese. Hart county. April 16, 1897.</p>

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

<p>Appeal. Before Judge Lumpkin. Fulton superior court. September term, 1896.</p>

<p>Garnishment and claim. Before Judge Cobb. City court of Athens. August term, 1896.</p>

<p>Distress warrants. Before Judge Lumpkin. Fulton superior court. September term, 1896.</p>

<p>Action for damages. Before Judge Prior. City court of Hall county. February term, 1896.</p>

<p>Accusation of assault and battery. Before Judge Berry. Criminal court of Atlanta. April term, 1897.</p>

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

<p>Action for damages.' Before Judge Hart. Jones superior court. October term, 1896.</p>

<p>Levy and claim. Before Judge Lumpkin. ' Fulton superior court. September term, 1896.</p>

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

<p>Complaint for land. Before Judge Felton. Bibb superior court. November term, 1896.</p>

<p>Equitable petition. Before Judge Hart. Baldwin superior court. January term, 1896.</p>

<p>Equitable petition. Before Judge Falligant. Chatham superior court. December term, 1896.</p>

<p>Proceeding to remove from office. Before Judge Kimsey. Hall superior court. January term, 1897.</p>

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

<p>Garnishment. Before Judge Felton. Bibb superior court. November term, 1896.</p>

<p>Action for damages. Before Judge Ross. City court of Macon. December term, 1896.</p>

<p>Action, for damages. Before Judge Ross. City court of Macon. September term, 1896.</p>

<p>Equitable petition. Before Judge Falligant. Chatham superior court. December term, 1896.</p>

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

<p>Injunction. Before Judge Felton. Bibb county. April 1, 1897.</p>

<p>Motion for new trial. Before Judge Henry. Bartow superior court. December 15, 1897.</p>

<p>Equitable petition. Before Judge Milner. Catoosa superior ■court. August term, 1896.</p>

<p>Attachment for contempt. Before Judge Fite. Catoosa county. February 12, 1897.-</p>

<p>Motion for new trial. Before Judge Milner. Gordon superior court. December 17, 1896.</p>

<p>Petition for injunction, etc. Before Judge Fite. Bartow county. April 2, 1897.</p>

<p>Action for damages. Before Judge Henry. Walker superior court. August term, 1896.</p>

<p>Actions for damages. Before Judge Henry. Walker superior court. August term, 1896.</p>

<p>Injunction, etc. Before Judge Smith. Wilcox county. March 5, 1897.</p>

<p>Levy and claim. Before Judge Felton. Crawford superior court. October term, 1896.</p>

<p>Petition for injunction. Before Judge Littlejohn. - Sumter county. March 31, 1897.</p>

<p>Complaint. Before Judge Sheffield. Terrell superior court. November term, 1896.</p>

<p>Indictment for murder. Before Judge Felton. Houston superior court. April term, 1897.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. July term, 1896.</p>

<p>Exceptions to auditor’s report. Before Judge Gamble. Emanuel superior court. October term, 1896.</p>

<p>Complaint. Before Judge Harris. Carroll superior court.. October term, 1896.</p>

<p>1. The act of November 11, 1889, “to fix the venue of justice courts in cities of this State having a population of over fifteen thousand, and to locate the times and places of holding said courts,” (which act, on December 20, 1893, was amended by striking from the same the word “fifteen” and inserting in its stead the word “five,”) is not unconstitutional as referring to more than one subject-matter.</p> <p>2. This act is not repugnant to those paragraphs of the constitution providing, respectively,'that “there shall be in each militia district one justice of the peace,” and that “commissioned notaries public, not to exceed one for each militia district, may be appointed.”</p> <p>3. It was settled by the decision of this court in Brooks v. Mutual Loan & Banking Co., 95 Qa. 178, which was followed in Moyev. Walker, 96 Ga. 769, that in so far as this act relates to the times and places of holding justices’ courts, it is not violative of that paragraph of the constitution requiring uniformity in “the jurisdiction, powers, proceedings and practice of all courts or officers invested with judicial powers (except city courts), of the same grade or class.” It is now held that this act is not contrary to the above-mentioned paragraph because it extends the jurisdiction of the justices’ courts of militia districts located wholly or partially in cities having more than five thousand inhabitants over the whole of such cities; and also, that it does not conflict with that clause of the constitution 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>4. A justice’s court may at any term lawfully sit from day to day until it shall have disposed of all cases ready for trial; and where a judgment was rendered on a day subsequent to the regular “court day,” the presumption, in the absence of proof to the contrary, will be that the term was legally protracted.</p> <p>5. Where one party executes and delivers to another several distinct and separate promissory notes, maturing at different times in futuro, each being for a sum less than one hundred dollars, but all together aggregating more than that amount, and in a mortgage given to secure the payment of such notes it is stipulated that if default be made in the payment of any one of them and the default shall continue for thirty days, then all of the notes shall become at once due and payable and the payee-may proceed to recover the whole of the money due upon such notes,, the latter is not, in case of such default, bound to institute an action in-a court having jurisdiction of the whole amount of the debt, but may bring in a justice’s court separate suits upon any one or more of the notes, not claiming in any one of these suits an amount in excess of that over which such court has jurisdiction.</p> <p>6. As the alleged right of the plaintiff below to the relief sought by her equitable petition necessarily depended upon the correctness of her averment therein that the judgments rendered against her in the justice’s court were void, and as she showed at the trial no valid, legal reason for setting them aside, the court was right in granting a nonsuit.</p>

<p>1. Though in the trial of a criminal case irrelevant evidence may have been admitted against the accused over objection by his counsel, this court will not entertain a ground of a motion for a new trial alleging error in permitting this evidence to be introduced, when the record fails to disclose what the objection to it was.</p> <p>2. Under such circumstances, this court is bound to deal with this evidence just as if there had been no attack upon its admissibility; and this being so, the fact that the solicitor-general commented upon it in his argument to the jury affords no cause for a new trial</p> <p>3. The verdict was fully warranted, and the newly discovered evidence is not such as to justify the granting of a new trial.</p>

Accusation of stabbing. Before Judge Ross. City court of Macon. March term, 1897. On April 20, 1897, an accusation was preferred in the city court of Macon against Tom Cain, charging him with the offense of stabbing, committed upon Carrie Hollis on March 6, 1897.

<p>Indictment for bastardy. Before Judge Butt. Muscogee superior court. May term, 1897.</p>

<p>1. The killing by a man of his mistress for no cause except that she, within his personal knowledge, had shortly before the homicide been guilty of lewd or lascivious acts with another man, and, upon being upbraided therefor, expressed no regret for her conduct, is murder, and the law of manslaughter has no application whatever to a case of this kind.</p> <p>2. Following the cases of Inman v. State, 72 Oa. 269, and Valentine v. Stale, 77 Qa. 470, this court can not hold it to be cause for a new trial in a murder case that the judge, after charging: “The punishment for persons convicted of murder shall be death, but shall be confinement in the penitentiary for life if the jury trying the case shall so recommend. If you find the defendant guilty, it is in your discretion whether you will recommend that he be imprisoned for life. You are not limited or circumscribed, and the law provides no rule for guidance,” added: “Ifyou think this is a case in which you would be justified in recommending a life imprisonment in the event of your finding the defendant guilty, you have a right to make such recommendation, as it is for you to say, in the event of your finding the defendant guilty, whether the facts and circumstances in this case warrant you in making such recommendation. It is all a question for you under the law and the evidence.” As an open question, however, some of the language above quoted would be subject to serious criticism. It would in such cases be decidedly better to omit the use of the word “justified” and of the word “warrant,” and to substitute in their stead language leaving the jury free to dispose of the question of recommending or not recommending life imprisonment, without any intimation from the bench as to what should control or influence them in reaching a conclusion upon this matter.</p> <p>3. Both the evidence and the statement of the accused demanded a verdict of guilty, and there was no error in denying a new trial.</p>

Before Judge Candler. Bibb’superior court. June 12, 1897. Thomas Allen was convicted of murder, and upon the overruling of his motion for a new trial he brought a bill of exceptions, pending which he escaped from custody, and having failed to surrender himself, and not having been rearrested, the writ of error wTas finally dismissed on May 16, 1895.

<p>Indictment for keeping gaming-house. Before Judge Nor-wood. City court of Savannah. May term, 1897.</p>

<p>1. On the trial of an indictment for murder, the following charge to the jury was given: “In this case the State relies, in part, upon what is known in law as confessions. Confessions are among the highest grades of evidence, because it is presumed that no man will confess a crime that he not guilty of; it is not human nature for a man to confess to that he is not guilty of; and for that reason the law makes confessions among the highest grades of evidence.” In the same connection, the court submitted to the jury the question as to whether there was any confession at all, and, if so, whether it was free and voluntary, and instructed them that confessions should be scanned with care, and that a. confession alone was not sufficient to authorize a conviction. Held, that while the above-quoted extract from the charge was erroneous, it is not, in view of the other instructions given, cause for a new trial in a case where it appears beyond doubt that a free, voluntary, and unequivocal confession of guilt was made, that the accused introduced no evidence in his behalf at the trial, that in his statement to the jury he did not deny the making of the confession, and that the statement itself was practically an admission of guilt.</p> <p>2. A charge upon the law of circumstantial evidence, argumentative in its character, and calculated too strongly to impress the jury as to the probative value of such evidence, should not be given; but so doing is not cause for a new trial in a case of the nature above indicated. Especially is this true when it clearly appears that the guilt of the accused was thoroughly established by evidence both circumstantial and direct.</p> <p>3. The charge of the court was erroneous and subject to criticism, not only as to the matters dealt with in the preceding notes, but also in some other less important respects; but this is such a plain and clearly proved case of murder, and the verdict of guilty is so manifestly right, this court will not reverse the judgment denying a new trial. Atkinson and Cobb, JJ.,. dissenting.</p>

<p>Motion for new trial. Before Judge Falligant. Chatham superior court. July 21,, 1897.</p>

<p>1. While delay in making complaint of an alleged assault with intent to rape and in instituting a prosecution for the same will ordinarily afford ground for discrediting the female as a witness and for attacking the bona fides of the prosecution, such delay may, in a given case, be so satisfactorily explained to the jury as to warrant them in returning a verdict of guilty.</p> <p>2. The ground of the motion for a new trial based on newly discovered evidence was not insisted on in this court; there was sufficient evidence to support the verdict, and this court will not interfere with the discretion of the trial judge in refusing to set it aside.</p>

<p>Indictment for larceny from the house. Before Judge Freeman.,, City court of Newnan. July .term, 1897.</p>

<p>Indictment for murder. Before Judge Smith. Twiggs superior court. April term, 1897.</p>

<p>The constitution of this State does not guarantee the right to demand indictment by the grand jury in misdemeanor cases; and it therefore follows that an act providing that the accused, in cases falling within the jurisdiction of a designated city court, shall not have the right to demand indictment, is valid and constitutional.</p>

<p>1. It was, upon the trial of a person indicted for the offense of murder, after merely reading to the jury the sections of the Penal Code relating to the various grades of homicide, including those bearing upon justifiable homicide, save that which declares, “The homicide appearing to be justifiable, the person indicted shall, upon the trial, he fully acquitted and discharged,” erroneous to sum up the contentions of the accused, the same, if true, making a clear case of justifiable homicide, without distinctly informing the jury that if the accused were justifiable 'in his act, he should he acquitted.</p> <p>2. Where a writing containing the testimony of a witness who was sworn upon a former trial, hut who has since died, is offered in evidence, all of such testimony which is relevant and material should he received; and while the party offering it is not hound to read the entire testimony, those portions of it not read by him may be read by the opposite party as evidence introduced by him who first offers it.</p> <p>3. The foregoing notes cover the material questions presented for decision by the present record.</p>

<p>Indictment for kidnapping. Before Judge Harris. Campbell superior court. August 31, 1897.</p>

<p>"Where in the trial of a criminal case the witness upon whose testimony a conviction was dependent was impeached by proof of contradictory statements under oath in a former trial, it was error to charge the jury as follows : “ Look to the evidence and see whether any false testimony was formerly given by any witness; and if so, you look to the evidence and see whether he has satisfactorily explained such former false testimony; and if he has, it will be your duty to believe him.” The effect of such charge was to make the credibility of the witness depend entirely upon his having satisfactorily accounted for his former false testimony, without regard to other things which should be considered by the jury in determining whether he should be believed."</p>

Motion. Before Judge Falligant. Liberty superior court. August 2, 1897. After conviction of murder, and pending his motion for new trial, Stephen Gleason presented to the court an application, in brief, as follows: The indictment upon which he was convicted charges him with having committed the offense by the use of a pocket-knife, inflicting therewith a mortal wound upon Tony Axon.

<p>Affidavit of illegality. Before Judge Butt. Taylor superior court. April term, 1897.</p>

Money rule. Before Judge Sheffield. Terrell superior court. November term, 1896. Upon a rule against the sheriff to distribute money arising from the sale of certain lands levied on, and sold under an execution in favor of the First State Bank against Samuel N. Thompson, a portion of the fund was claimed by W. N. Thompson, under two executions against the defendant in favor of said bank, which had been transferred and assigned to him.

<p>Complaint on note. Before Judge Littlejohn. Stewart superior court. April term, 1897.</p>

<p>Complaint on note. Before Judge Littlejohn. Sumter superior court. May term, 1897.</p>

<p>Petition, for injunction. • Before Judge Littlejohn. Sumter county. August 28, 1897.</p>

Certiorari. Before Judge Sweat. Coffee superior court. July 31, 1897. Suit was brought in the city court of Coffee county, against C. W. Meeks and R. Meeks, late partners under the name of C. W. Meeks & Son, upon an account for goods which the plaintiffs claimed to have sold to the defendants in October and December, 1895. 0. W. Meeks filed a plea in which he alleged that a.t the time the goods were sold there was no such firm as 0.

<p>Where under the terms of a contract reciprocal duties are imposed upon the respective parties, and the ability upon the part of one to perform is dependent upon performance by the other, the former will be excused from compliance if, in consequence of the non-performance of the latter, he become unable to perform.</p>

<p>Action on insurance policy. Before Judge Butt. Muscogee superior court. November term, 1896.</p>

<p>Affidavit of illegality. Before Judge Butt. Taylor superior court. April term, 1897.</p>

<p>Where a suit is brought upon a policy of insurance in one of the counties of this State, other than that in which the principal office of the company issuing such policy is located, and the declaration alleges that “said corporation had an agent and transacted business [in the county where such suit is brought], and now has such agent and transacts such business in said county,” the averment of jurisdiction is insufficient, and will not withstand a general demurrer to the declaration for the want ’of jurisdiction.</p>

<p>Authority to execute a sealed instrument must itself be under seal.</p>

<p>When this case was here before (100 Ga. 189), it was held that “there was sufficient evidence to warrant the verdict rendered, in so far as it found the property therein referred to subject to the plaintiff’s execution, and also to warrant the finding as to the amounts due thereon; but, inasmuch as there was no prayer in the petition authorizing any finding as to such amounts, direction is given that the verdict and judgment be amended so as to strike therefrom all which relates to this particular matter.” It was, therefore, not error for the court below, when the remittitur was entered, to order that the execution which had been erroneously issued on the latter judgment should be quashed. It was not necessary that the motion praying for such order should have been made in writing, and especially would that be the case when no objection was made in the court below that the motion was not in writing.</p>

<p>1. A contract entered into between a railroad company and a ticket-broker, whereby the latter is enabled to sell tickets to individuals over the company’s lines leading from this to another State, at less than the established rate for the sale of tickets by its regular agent between the same points and for the same accommodations, is in violation of the act of Congress “to regulate commerce,” approved February 4, 1887.</p> <p>2. A party to such a contract can not recover in an action which does not seek to disaffirm but to enforce it by suit for its breach.</p> <p>3. A demurrer by the defendant, upon the ground that such a suit set forth no cause of action, should have been sustained.</p>

<p>1. Where one rents land from the agent of the owner, the contract being made with the agent in his individual name, the latter may maintain an action on such contract, though the fact of his agency was known by the renter; and accordingly the payment of such rent may be enforced by a distress warrant sued out by the agent in his own name. .</p> <p>2. Under the proposition announced in the preceding headnote, it follows that there was no necessity for the plaintiff to amend his action by suing for the use of the real owners of the land.</p>

<p>1. Where a summons issued from a justice’s court, in a suit against a railway company, requires the defendant to answer the plaintifE’s complaint for damages alleged to have been caused by the negligent killing of a described cow, and a cop}' of an account is attached to the summons, setting forth that the defendant is “Dr.” to the plaintiff for the killing of such cow, the overruling of a motion to dismiss the action because the plaintiff’s ownership of the animal referred to is not sufficiently alleged will not he reversed. But it would in such case be the better practice to amend the summons and make the allegation of ownership distinct and unequivocal.</p> <p>2. There can be no lawful recovery against a railway company for the killing of an animal, when there is no evidence at all as to its value.</p>

<p>1. Where a fi. fa. against two joint defendants was levied upon personalty as the property of both defendants, and one of them filed an affidavit of illegality in which there was no objection to the levy on the ground that the property in fact belonged to affiant only, there was no error in overruling a motion made by him on the trial of the illegality to dismiss the levy on this ground.</p> <p>'2. No injury having been done the plaintiff in error, which was not remedied by the order of the trial judge, and the verdict being warranted by the evidence, the court did not err in refusing to grant a new trial.</p>

<p>Foreclosure of lien. Before Judge Berry. City court of Atlanta. March term, 1897.</p>

<p>Citation for settlement—appeal. Before Judge Lumpkin. Fulton superior court. June 30, 1897.</p>

Action for damages. Before Judge Lumpkin. Fulton superior court. March term, 1897. Henry Wolfe sued Aaron Israel, alleging that he had damaged plaintiff $10,000 by falsely.and maliciously saying of and concerning plaintiff, on June 22,1896, “ I will show him [meaning plaintiff] what a scoundrel, swindler and thief he is,” meaning thereby that the plaintiff was guilty of cheating and swindling and- also of theft or larceny.

<p>Appeal. Before Judge Candler. Clayton superior court. March, term, 1897.</p> <p>On October 28, 1896, Maggie Poole brought suit against Trimble for a balance alleged to be due on a loan made to the' defendant by her on December 8,1890. A plea of the statute of limitations was filed; and upon the trial a nonsuit was granted upon the ground that the action was barred. Plaintiff testified that she lent the money to the defendant for the purpose of enabling him to make a payment upon a piece of land. No special time was fixed for repayment, but the defendant promised that whenever he should finish paying for the land he would give her a note for the money and turn over his deeds as security. He promised to pay her eight per cent, per annum for the use of the money. In March, 1891, she wrote to the defendant that she was needing some money, and he let her have 75 cents. In November of the same year he paid her $10; in October, 1892, $15; in October, 1893, $4; and in November, 1894, $5. In the fall of 1894 he brought her some butter and eggs of the value" of $4. She offered to pay for them, but he told her to let it go on what he owed her. All these sums were credited on the loan. At that time, or at some other time during the fall of 1894, the defendant told her he had finished paying for his land, but he gave her no note for the money. He said his crop had turned out badly and he would pay up his debt the next fall. She agreed that the debt might run till the next fall. In 1895 she demanded her money in the fall of the year, but he did not pay it and has not yet done so.</p>

Injunction. Before Judge Sweat. Glynn county. July 28, 1897.

<p>When, in the trial of an action against a corporation for malicious prosecution, it appeared that the prosecution complained of had been instituted against the plaintiff by a person in the employment of the defendant, and that this was done not merely upon the advice but by the direction ■ and order-of an attorney at lawwho was, for this identical purpose, the ■ agent and representative of the defendant, and where the .evidence unequivocally showed that the above-mentioned agent in causing the prosecution to be instituted acted in good faith upon information given him by three or more persons whose statements, if true, made a plain and manifest case against the plaintiff, there was no error in directing a verdict for the defendant; and this is true even though one of the persons upon whose statements the attorney acted, and who swore out the warrant against the accused, did after so doing express to the latter a belief in his innocence.</p>

<p>Where the judge’s certificate to a bill of exceptions verifies it in part only, and shows it to be in part untrue, the certificate is not a lawful one, and the writ of error must be dismissed.</p>

<p>The General Assembly may, in the exercise of the police power, confer upon the municipal corporations of this State authority to make and enforce ordinances requiring all persons who may be within the limits of such corporations to submit to vaccination,, whenever an epidemic of smallpox is existing, or may be reasonably apprehended.</p>

<p>Affidavit of illegality. Before Judge Candler. Burke superior court. December term, 1896.</p>

Indictment for rape. Before Judge Gober. Catoosa superior court. August term, 1897. The plaintiff in error, a man of sixty years, was indicted for rape alleged to have been committed upon a child of nine years. The jury found him guilty of an assault, and his. motion for a new trial was overruled. There was testimony that he attempted to engage in sexual intercourse with the-child.

<p>When it appears upon the call of a case in this court, that the defendants in the court below had sued out a writ of error complaining of the judgment of the trial court in overruling a demurrer to a declaration, and that upon the filing of the hill of exceptions the plaintiffs in error had paid all costs which had then accrued, and that subsequently to this the plaintiff had the case entered as dismissed in the court below, paying only the costs accruing after the hill of exceptions was filed, this court, while having jurisdiction of the case, will decline to decide it, but will direct that the writ of error be dismissed, and that the costs of the case in the court below and in this court be paid by the defendant in error.</p>

<p>A contract for the purchase and sale of “cotton futures” is a gaming contract, and therefore illegal and contrary to public policy. This being so, neither such a contract nor the loss or gain resulting therefrom can be invoked to measure the damages sustained by a party thereto in consequence of the failure or refusal of a bank-to comply with its agreement to advance to him money which he intended to use as a “margin” in conducting a speculation in such “futures.” In so far as the decision of this court in the case of Western Union Telegraph Co. v. Blanchard, Williams & Co., 68 Ga. 299, conflicts with what is above laid down, it is, upon a formal review thereof, overruled.</p>

<p>Inasmuch as the law provides that “the practice and modes of procedure in the county court . . shall be the same as in the superior court, from the filing of the original suit to the final process,” etc., except as otherwise provided in the Code (Civil Code, $$4198, 4204), the act of December 16, 1895, “to regulate practice in the superior court,” became applicable to pleadings in the county courts, and consequently there was, in April, 1897, no error, at the second term of an appeal from a county court, in refusing to allow an amendment then offered to the defendant’s plea, the same being objected to on the ground that it came too late, and there being no affidavit by the defendant “that at the time of filing the original plea or answer he did not have notice or knowledge of the new facts or defense set out in the amended plea or answer.”</p>

<p>An equitable petition alleging that plaintiff executed a mortgage to defendant to secure a debt, and that it was stipulated therein that the mortgagee in case of default in payment should have the right to advertise and sell the property, and at such sale become a bidder and purchaser, and that a portion of the debt had been paid by the mortgagor, and upon default in payment of the balance there had been a sale under the power above referred to, and the mortgagee had become the purchaser, and that certain amounts had been expended for improvements on the property between the date of the mortgage and the date of the sale, and praying for a judgment against the mortgagee for the amount paid by the mortgagor on the debt, and for the value'of the improvements made, set forth no cause of action, and was properly dismissed on demurrer.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. July term, 1897.</p>

<p>1. A petition against a railroad company, for damages alleged to have been occasioned to the plaintiff by wrongfully carrying her past the station to which she had purchased a ticket, should, though it sets forth in general terms a contract of carriage and alleges facts showing a breach thereof, be treated as an action ex delicto, when it is manifest from the allegations and prayers of the petition, taken all together, that the plaintiff is seeking a recovery because of the defendant’s breach of duty and not on account of its breach of -the contract. ..</p> <p>2. Even if such a petition is to some extent ambiguous, it should not be dismissed upon a special demurrer which characterizes it as an action ex contractu, containing paragraphs seeking a recovery of damages arising ex delicto, the demurrer so far as relating to this matter not making the point that the petition should be dismissed on the ground of duplicity, but merely “praying” that these paragraphs be stricken.</p> <p>3. Where a petition contains several paragraphs some of which set forth and pray for damages which may be properly said to have arisen from the wrongs complained of, a demurrer alleging in general terms that “said items of damage are too remote and can not be recovered” is not good. If any of such items are too remote tí) constitute the basis of a recovery, the same should be specifically pointed out.</p>

<p>Money rule. Before Judge Felton. Houston superior court. April term, 1897.</p>

<p>Foreclosure of mortgage. Before Judge Felton. Houston superior court. April term, 1897.</p>

<p>1. Parol evidence of the contents of a lost deed is inadmissible without proof that such deed has been properly executed.</p> <p>2. AVhere a grandfather has made a parol gift of land to his grandson who is a minor at the time, and the father enters into possession of the land for his son, such possession will enure to the benefit of the son, and can he made the basis of a recovery in an action against one holding adversely.</p> <p>8. A tenant can not dispute his landlord’s title without first surrendering possession to the landlord. A possession which originated under the relation of landlord and tenant can not he the basis of a prescriptive title as against the landlord and those claiming under him.</p> <p>4. The charge of the court fairly covered the issues in this case under the ruling of this court when it was here before (101 Ga. 5), and there was no error in overruling the motion for a new trial.</p>

<p>1. A writing signed by two persons and containing an admission that they are members of a partnership therein mentioned, while relevant to contradict the truth of a plea of “no partnership,” subsequently filed by them in resistance to an action brought against a partnership of that name of which they are alleged to be members, does not, as to one who had no knowledge of such writing and who consequently did not act upon the faith of its contents, estop the persons who signed it from asserting that in point of fact they were never members of any such partnership.</p> <p>2. The court committed no error in admitting evidence or in charging the jury, and the evidence warranted the verdict.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. March term, 1897.</p>

<p>Where goods were expressed C. O. D. by a vendor in another State to a vendee in this State, which were entirely different from those embraced in the contract of sale, and the amount of the C. O. D. .charges were paid by the vendee to whom the goods were delivered by the express company ; and where immediately upon the discovery of the fraud or mistake the vendee tendered back the goods to the express company, and notified the vendor by letter of his action, the vendor being a non-resident and' not accessible, an action by attachment will lie in favor of the buyer against the seller for the purchase-money paid for the goods, without any further tender or offer of rescission.</p>

<p>Indictment for murder: Before Judge Falligant. Liberty superior court. November term, 1896.</p>

<p>Certiorari. Before Judge Hart. Greene superior court. August term, 1897.</p>

<p>Complaint. Before Judge Sweat. Ware superior court. April term, 1897.</p>

<p>Action for damages. Before Judge Sweat. Ware superior-court. August 2, 1897.</p>

<p>Petition for injunction. Before Judge Butt. Marion county. July 31, 1897. .</p>

<p>Certiorari. Before Judge Sweat. Ware superior court. July 30, 1897.</p>

<p>Certiorari. Before Judge Littlejohn. Macon superior court. May term, 1897.</p>

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