Volume 103 — Georgia Reports

<p>Attachment. Before Judge Spence. Dougherty superior court. April term, 1897.</p>

<p>Indictment for assault and' battery. Before Judge Ross. City court of Macon. June term, 1897.</p>

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

<p>1. An indictment lies under section 191 of the Penal Code against any bailee violating its provisions, though he may not be a “factor, commission merchant, warehouse-keeper, wharfinger, wagoner, stage-driver, or common carrier on land or water.”</p> <p>2. There was no error in refusing to allow the accused to introduce in evidence the original record of a civil action by the prosecutor against the accused, in another court, for the recovery of the property in question.</p> <p>3. The defense being that the property described in the indictment had not been intrusted to the keeping of the accused as a bailment, but that the same had been loaned to him by the prosecutor for the purpose of enabling him to hypothecate it for his own use, and the accused in his statement having so alleged, it was not improper for the solicitor-general, in his argument to the jury, to comment on evidence showing conduct on the part of the accused evincing bad faith toward the prosecutor in the transaction under investigation, whether such conduct constituted guilt of the crime charged or not. Such argument was legitimate as suggesting a reason for discrediting the statement in so far as it conflicted with the sworn testimony in the case.</p> <p>4. While this is true, and though the court clearly and distinctly charged the jury that if the transaction between the prosecutor and the accused was a loan of property for the purpose of enabling the accused to use the same in his own business and not a bailment for the benefit of the prosecutor, they could not find the accused guilty, yet as this was a close case, it was erroneous to refuse to further instruct the jury that this would be true “however reprehensible his conduct may have been in borrowing and failing to pay, for that would only constitute a matter of debt between them, with which you have nothing to do ”; there being a written request, presented in due time, that this additional instruction be given to the jury.</p> <p>5. An admission by the prosecutor is not admissible as original evidence for the accused in a criminal trial. It may, however, if relating to a material matter, be received for the purpose of impeaching the prosecutor, if the latter has testified as a witness and the foundation for introducing the admission has been properly laid.</p> <p>6. While the newly discovered evidence, under the rule above announced, was merely of an impeaching character, the ground of the motion for a new trial based thereon is, in view of what is above laid down, entitled to some consideration in determining whether not the accused should have another hearing.</p>

<p>Indictment for larceny from the person. Before Judge Ross. City court, of Macon. August 28, 1897.</p> <p>It appears from the evidence, that J. H. Leonard went from his home in Eatonton to Macon upon an excursion, and after reaching Macon began drinking and soon became so drunk that he remembered nothing that transpired during his intoxication, and when he came to himself he was in custody in the police station. He then discovered that his watch and chain were missing from his person, but found in his pocket nearly half of the money he had when he started from Eaton-ton. AVhile he was drunk upon the street some one assisted him into a hack, and drove with him to a hotel known as the Zettler House, at which defendant was employed as a porter. Defendant came out, and was asked by the person accompanying Leonard to procure lodging for him. Defendant attempted to do so, but the landlady refused to receive Leonard. Defendant returned to the hack and told the hackman he would carry Leonard to his (defendant’s) house. Before driving away Leonard told the unknown man who had accompanied' him in the hack to go to hell, and the man left. The hack-driver testified that these were the only words he heard Leonard speak during the whole time. The hack was then driven to defendant’s house, and he and the hackman assisted Leonard out of the hack into the house, and the hackman left. According to defendant’s statement, this part of which is not contradicted, after the landlady refused to receive Leonard at the hotel, the man accompanying him handed defendant a dime and said, “ Do something for him, or they will get him sure. Can’t you take him somewhere?” The man then said something to Leonard, who answered, “You go to hell.” Then the other man walked off. Defendant then took Leonard to his house, and Leonard gave him fifty cents and told him to get some whisky with it. He also said, once or twice, “Don’t let them get me; keep me away from them.” He handed his watch and chain to defendant and asked him to take care of them. Defendant said, “ Well, I will put it here in the trunk”; and did put it there. He then handed Leonard a chair, who sat down in it, and defendant left him in the house, without locking the door, and went to the hotel.’ An hour or two later he returned to the house and found that Leonard had gone. From the testimony of the two policemen it appears, that after Leonard became sober at the police barracks he called on them for his watch, thinking they had taken charge of it. He had no watch when they arrested him, and they so told him. The two policemen then, after some investigation, arrested defendant at the Zettler House, on suspicion that he had the watch. They asked him if he did not carry a drunken man from, that house up the alley the day before, and he denied it and said he did not leave the Zettler House at all on the previous afternoon. He also said he did not know the number of the hack nor the name of the hackman with whom the drunken man was riding. The policeman then said, “ George, we have the dead proof on you; we know it all, and you might as well own up to everything.” Defendant asked, “Is anything missed?” or “What is wanted?” and one of the policemen answered, “That man’s watch.” Defendant then said, “0 yes, the watch is in my trunk at my house; he gave it to me to put away for ‘him. Here is the key to the house.” They went to the house and found the watch and chain in the trunk in a corner of the bottom under the tray, not covered up. The door was locked but the trunk was not. Defendant said nothing about having-tried to procure lodging at the Zettler House for the drunken man on the previous day. In his statement defendant says, that when he was arrested by the policemen they did not at first tell him what they arrested him for, and when they were asking him about going with a drunken man, and who the hackman was, etc., he told them he did not know, and did not go with one, thinking they were still after Leonard whom he had promised to help. He did not know what Leonard had done nor where he was. Just as soon as they said they wanted Leonard’s watch and chain, defendant told them all about it and gave them the key. He did not know the hackman. There was testimony that defendant’s character is good, and that he is honest, faithful and accommodating. Defendant also stated to the .jury, that as soon as he got off from work on the night following the day when the transaction described took place, he went all over town and looked in a great many places for Leonard ; knew his face but did not know his name ; and on the next morning told Minton all about it. One of the two policemen testified that he was present at the commitment trial of the defendant, and to the best of his recollection defendant did not say anything about looking for the man Tuesday night, nor anything about the watch, nor that defendant told Minton that the man handed defendant his watch to take care of; and that defendant was represented at the commitment trial by the same counsel as on the' present trial.</p>

Indictment for embezzlement. Before Judge Henry. Floyd superior court. July term, 1897.

<p>1. There being, on the 26th day of September, 1879, a general law of force in this State, rendering lawful, in any county thereof, sales of domestic wines, in quantities of not less than one quart, by the manufacturers of the same (Acts of 1877, p. 33), and such wines being “intoxicating liquors,” an act approved on the day above mentioned, which by its terms undertook to “entirely prohibit the sale of spirituous or intoxicating liquors” within the limits of a designated county, was unconstitutional. As its effect would be to render penal, in that county, all sales of domestic wines, it was violative of that clause of the constitution prohibiting special legislation in any case for which provision has been made by an existing general law.</p> <p>2. Such an act can not be held valid and constitutional in so far as it relates to sales of liquors other than domestic wines, or to sales of such wines by the manufacturers thereof in forbidden quantities, or to sales of the same by persons not manufacturers. This is true because so holding would not give effect to the real legislative intent, which apparently was to entirely prohibit, in the specified county, all sales of spirituous or intoxicating liquors, including domestic wines, no matter by whom, or in what quantities, the latter might be sold ; and it does not appear that the General Assembly designed or contemplated the passage of an act having a less comprehensive scope. Little, J., dissenting.</p>

<p>Indictment for extortion. Before Judge Ross. City court of Macon. June term, 1897.</p> <p>Levar was a constable. He arrested a woman upon a peace warrant, upon the hearing of which she was bound over. She gave the bond, and he demanded the payment of costs, but no payment was made. Later the justice who issued the warrant wrote up-and signed an order, that the State recover of this woman $9.20 as costs in the peace-warrant Case; and thereupon issued execution which Levar presented to .the woman, and again demanded payment of the money, under threat to seize and sell her goods. She paid him $5 of the amount demanded, taking his receipt therefor. In defense to the indictment against him he set up that he acted in good faith, believing it to be his duty as constable “to serve” the execution, etc. For the other facts see the opinion.</p>

<p>1. Where two persons are in one count of an indictment charged as joint principals, and one of them in another count is also charged as accessory before the fact, it is not erroneous on the trial of the latter, upon the indictment as a whole, to admit in evidence confessions made by the other accused person, after the enterprise had ended, to establish his guilt as principal, such confessions being limited to this purpose by the action of the presiding judge. Such evidence, relatively to the second count mentioned, is admissible as tending to establish the necessary element in the guilt of the person charged as accessory, to wit the guilt of his alleged principal.</p> <p>2. A ground of a motion for a new trial based on alleged newly discovered evidence is without merit, when the certificate of the judge affirmatively shows that such evidence was known to the accused, and referred to on the trial.</p> <p>3. The verdict in this case was contrary neither to law nor to the evidence.</p>

Indictment for murder. Before Judge Hart. Laurens superior court. July term, 1897. Joe Battle was indicted for murder by stabbing Jordan Smith. The jury found him guilty of voluntary manslaughter; and his motion for a new trial having been overruled, he excepted. The testimony is conflicting and contradictory; but it appears that Battle was a tenant of Smith for the year 1895, and was to pay rent in baled cotton.

<p>Indictment for disturbing divine service. Before Judge Kimsey. Rabun superior court. August term, 1897.</p>

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

<p>Indictment for fornication. Before Judge Fite. Gordon superior court. August term, 1897.</p>

<p>Indictment for misdemeanor. Before Judge Berry. Criminal court of Atlanta. October term, 1897.</p>

<p>Levy and claim. Before Judge Butt. Chattahoochee superior court. February 13, 1897.</p>

<p>1. If upon the levy of a distress warrant one becomes a surety upon a replevy bond given by the'defendant, in the trial of an issue joined on the affidavit to obtain such warrant a judgment may be entered up against the surety without notice to him; but where the levying officer, instead of taking a replevy bond in terms of the statute, conditioned for the payment of the eventual condemnation-money, takes a forthcoming bond, a summary judgment can not, as in cases of replevy bonds, be entered up against the surety.</p> <p>2. If in such a case a judgment is entered in a summary way against the surety as if upon a replevy bond, he may, upon the levy of the execution against him, by affidavit of illegality, make the question that he had not signed such a replevy bond and that for this reason the judgment against him was unauthorized.</p> <p>3. AVhere, upon the trial of an iásue joined upon such an affidavit of illegality, it appears that the bond alleged to have been taken .by the levying officer has been lost or destroyed, neither the principal nor the surety is, under section 5269 of the Civil Code, incompetent as a witness on behalf of the latter as to the character and conditions of the bond actually signed by him, even though at the time of the trial both the levying officer and the subscribing witness to the bond are dead.</p> <p>4. As to facts knowledge of which an attorney acquires from his client by virtue either of his relation as attorney or of his anticipated employment as such, he is not a competent witness; otherwise as to,communications made by his former client to him after the relation of attorney and client had ceased to exist.</p>

<p>Motion to establish copy of lost bill of exceptions.</p>

Affidavit of illegality. Before Judge Butt. Talbot superior court. March term,' 1897.

<p>Application for administration — appeal. ■ Before Judge Sheffield. . Early superior court. April term, 1897.</p>

<p>The questions of law made in this case touching the jurisdiction of the court are controlled by the principles announced by this court in the cases of Wilhelms v. Noble, 36 Ga. 599, and Stewart v. Thompson & Co., 85 Ga. 829.</p>

<p>Levy and claim. Before Judge Littlejohn. Schley superior court. April term, 1897.</p> <p>A claim to land levied on under an execution from a judgment rendered October 25, 1876, in Schley superior court, in favor of E. S. Baldwin against T. B. Myers, was interposed by Ada Hudson and Nannie Cato. Upon the execution was an entry of nulla bona, dated June 4, 1883, and signed “L. A. Giles, coroner, Schley county.” This was followed by an entry dated October 25, 1889. The date of the levy was July 30, 1894. The claimants moved to dismiss the levy, upon the ground that the execution appeared upon its face to be dormant, in that the entry made by Giles, coroner, was illegal and unauthorized, the fi. fa. not being directed to the coroner, and it not appearing that Giles, as coroner, was authorized to make the entry. The plaintiff in execution offered to submit proof that an affidavit as required by the Political Code, § 496, was made before the clerk of the court placed the process in the hands of the coroner for execution. lie testified: On June 4, 1883, he made, before J. N. Cheney, clerk, such an affidavit as he now proposes to establish. E. M. Butt, his attorney, wrote out the affidavit in Cheney’s office and gave it to witness, and also wrote out nulla bona of that date on the fi. fa., and witness gave the fi. fa. to Giles, the coroner. The affidavit was signed by J. N. Cheney, clerk, and Cheney filed it in the clerk’s office before the entry of nulla bona was made by Giles. The entry of nulla bona was signed then and there by the coroner. He could not now say that the affidavit filed was like the one now proposed to be established. The affidavit was attached to the fi. fa. at the time the coroner signed the nulla bona. Witness handed the papers back to Cheney, clerk, and has not seen the affidavit since that time. He is certain he has never made but one affidavit of any kind relative to this fi. fa. — Subsequently, after consultation with his attorneys over the written instrument, the witness testified that he had made a mistake, for he had made an affidavit to have the homestead levied upon, besides the affidavit now proposed to be established. — J. M. Murray, clerk of the superior court, testified: He was first elected clerk of the court in 1891, and the fi. fa. and entries thereon, and the claim papers, were entered on complete record by him. The original papers are not recorded on complete record. He has no recollection of seeing an affidavit like the one now proposed to be established. Such an affidavit was not with the papers at the time he put the same on complete record, nor at the time he made a copy of the papers two or three years ago for Mr. Hudson, claimants’ attorney.— L. A. Giles testified: Defendant in fi. fa. was sheriff of Schley county at the date of the entry of nulla bona which witness, made'on the execution as coroner. Witness does not remember whether such air affidavit as the one sought to be established was shown to him before he made the entry. If one was attached to the fi. fa., he has no recollection of it. The fi. fa. was handed him by the plaintiff. He has no recollection connecting E. M. Butt with the transaction. He thinks the entry was written out-when handed to him, and he simply signed it at the request of the plaintiff and gave it back to him. The clerk of the court did not give him the fi. fa., nor such an affidavit as the one proposed to be established. The transaction took place between him and the plaintiff. During the time he was coroner and T. B. Myers sheriff, only two fi. fas. were placed in his hands for execution: one was this fi. fa., and the other a fi. fa. in favor of Blanche & McGarrah, transferred to Harrold, Johnson & Company. An affidavit such as the one sought to be established was made in connection with the Blanche & McGarrah fi. fa. He recollects clearly that affidavit and making the entry, and he recollects making the entry on the Baldwin fi. fa., “but no affidavit being attached or connected with it.” The affidavit made on the Blanche & Mc-Garrah fi. fa. was made and handed to him by Mr. Johnson. He has no recollection of but one affidavit being made in the two cases. He had a conversation with Mr. Hudson, in the presence of J. F. Woods, former sheriff, and James Warner, and stated to Mr. Hudson that no such affidavit was ever made with the Baldwin fi. fa. against Myers. He never heard of one being with that fi. fa. — J. N. Cheney testified : He was clerk of the superior court when the suit of Baldwin against Myers was brought in 1876 and 1877. T. B. Myers was not sheriff of Schley county at that time, but was sheriff in 1883, at the date of the entry of nulla bona by Giles, coroner. Witness was succeeded by J. M. Murray, the present clerk. He has no recollection of such an affidavit being made before him by E. S. Baldwin as the one proposed to be established. He has no recollection of such an affidavit being made by any one during his service as clerk. If such had been made it would have attracted his attention, and he thinks he would have remembered it. He remembers E. M. Butt, Giles, coroner, and E. S. Baldwin being in his office at or about the time the nulla bona was returned by Giles as coroner, and Butt did some writing there, and the coroner signed his name there. He could not remember what the writing was that Butt did, except that it was to keep alive the fi. fa., as the defendant in fi. fa. was then sheriff. — William Allen testified: He is now sheriff of the county. He succeeded J. F. Woods as sheriff. He has had this fi. fa. in his possession as sheriff, and has made some entries on it to keep it alive, at the request of plaintiff. It has been in his office for several years. He obtained it from the plaintiff. At the time he got it there-was no such affidavit attached to or with it as the one now proposed to be established. He never saw nor heard of such an affidavit until now. He was sheriff a short while, three or four months, prior to the time he succeeded Woods; that was in 1889. Woods was the sheriff in 1892. He was appointed to fill out the unexpired term of T. B. Myers. The fi. fa. was not in the office when he filled out the unexpired term.</p> <p>J. B. Hudson testified for the claimants: He had been familiar with this fi. fa. for several years prior to the levy now in controversy. He represented the defense in the proceeding by the plaintiff to subject the homestead, and at that time investigated the matter to ascertain if such an affidavit as is now proposed to be established had never been made prior to the entry of Giles, coroner. He saw Giles, who informed him that no such affidavit had been made, to his knowledge. He made also a search' in the clerk’s and sheriff’s offices, and found no such affidavit. He had been looking after the defense in this claim case since the filing of the claim, and had made a copy of the fi. fa. and entries thereon, and the papers attached thereto, so as to be able to establish a correct copy of the fi. fa. should it be lost. By consent of the clerk witness kept possession of the fi. fa. for about a year, for the purpose of preserving it as it was. Until this trial witness had never heard of any claim by the plaintiff or his attorney that such an affidavit had been made in this case. When he first inspected the fi. fa. there was no such affidavit attached to or with it, and nothing that suggested that such an affidavit had ever been made, and he had never seen any such affidavit. The fi. fa. had not been altered or changed, or any paper detached or taken from it, since it was first examined by him. The fi. fa. and the entries thereon are exactly as they were when he first saw it, except the levy now in controversy.- — -The plaintiff moved to rule out the testimony of Hudson as irrelevant and illegal, and as referring to matters transpiring since the date of the entry in controversy. The court overruled the motion.</p> <p>J. F. Woods testified for claimants: He succeeded Myers as sheriff of Schley county. Allen served a few months when Myers was elected to the legislature. Witness made a levy on the fi. fa., and had it in his possession. No such affidavit as the one proposed to be established was ever attached to the fi. fa. or with it when the same was in his possession, He never saw nor heard of such an affidavit until this trial, except at a conversation sometime past between L. A. Giles and J. B. Hudson, in the presence of Jeff Myers and Jim Warnock, when he heard Giles tell Hudson that no such affidavit was ever shown him or made known to him in this case, but that such an affidavit had been made “in the Blanche & McGarrah fi. fa. against Myers, and that he made an entry on that fi. fa.”— Plaintiff moved to exclude this testimony, as negative, irrelevant and illegal. The motion was overruled.</p> <p>The court announced orally, that the evidence was insufficient to establish the affirmative of the issue presented, and that the levy should be dismissed. Before any written judgment was signed, plaintiff presented a petition alleging that an affidavit thereto annexed, and made to conform to the Political Code, § 496, was a true copy of “ the one that was lost, made by E. S. Baldwin, and filed in the clerk’s office of the superior court of Schley county,” and praying to establish the same in lieu of the original so lost. Upon the back of the affidavit so attached was written an affidavit by plaintiff, that “the within is a true copy of the affidavit made by affiant and the same has been lost, and that the same was filed by affiant in clerk’s office of Schley superior court prior to the nulla bona by L. A. Giles, coroner, and that said affidavit was attached to said fi. fa. at the time of the nulla bona by said L. A. Giles.”</p> <p>Judgment dismissing the levy was rendered. • The plaintiff excepted to each of the rulings stated. ' ■ ,</p>

Complaint. Before Judge Littlejohn. Macon superior court. May term, 1897. Grant turned over to DeVaughn, in satisfaction of a mortgage which he (Grant) had executed to DeVaughn, certain merchandise covered by the mortgage, and upon which there was a senior mortgage executed by Grant in favor of Johnson & Harris.

<p>Action for damages. Before Judge Littlejohn. Macon superior court. May term, 1897.</p>

<p>Appeals from a county court to the superior court may be entered at any time within four days after the adjournment of the court in which the judgment is rendered.</p>

<p>1. An agent of a corporation is not incompetent, under section 5269 of the Civil Code, to testify to communications or transactions had with the deceased agent of a firm or individual.</p> <p>2. The evidence warranted the verdict, and there was no error in overruling the motion for a new trial.</p>

<p>1. Neither the “general welfare oíanse” usually found in the charters of towns and cities, nor the special power “to license and regulate the man-’ agement of barrooms, saloons,” etc., includes the power to run and operate barrooms and saloons, or to otherwise embark the municipal corporation having authority to exercise such powers only, either in the business of selling liquor, or in any other commercial enterprise. The exercise of such a power, being inconsistent with the purposes for which municipal corporations are ordinarily organized, must rest upon express legislative authority, and in the absence of such authority such a power does not exist.</p> <p>2. There was no error in granting the injunction.</p>

<p>Foreclosure of mortgage. Before Judge Littlejohn. Sumter superior court. May term, 1897.</p> <p>The Consolidated Ice Machine Company brought its petition to foreclose a mortgage executed to it by Virginia IT. Gray to secure the payment of her three promissory notes to the plaintiff, dated December 3, 1888, one for $1,000 due October 1, 1889, another for $735 due January 1, 1890, and another for $1,000 due October 1, 1890, each bearing interest at eight per cent, per annum from November 1, 1888; the petition alleging that the defendant had failed to pay the notes, except the first for $1,000. Plaintiff also brought suit on the second and third notes. Both cases by agreement were consolidated and tried together. The defendant pleaded the general issue; also, that the consideration for which the notes and mortgage were given had failed in this: The consideration of the notes was the purchase of a fourth-interest in machinery for the manufacture of ice to be used and sold in ordinary trade. The purchase-price was $4,735, and at the time of the purchase defendant paid plaintiff $2,000 in cash, and gave her three promissory notes for the balance of the purchase-money. At the time of the purchase, plaintiff, by its -duly constituted agent J. L. Bye, warranted that the machinery would produce 15 tons of good merchantable ice per day, and agreed that in the event it failed to produce that amount daily, plaintiff would take back the interest so bought, refund the money paid, and cancel the notes. It was further agreed, as a part of the contract of purchase, that the notes were not to be collectable until after a fair test had been made of the machinery, and not then if the test did not show that the plaintiff had made good its warranty. The test was to be made by an expert machinist to be. employed by plaintiff, and was to show the capacity to be 15 tons of good merchantable ice daily. . Defendant knew nothing of the nature and capacity of the ice machinery, and relied wholly upon the good faith of the plaintiff, and upon its aforesaid representations and promises. Relying upon said representations and contract she paid $3,000 before any actual test had been made as agreed on. The test was made, and showed that the capacity of the machinery was only 12 tons, and not 15. This test was fairly made, and under very favorable conditions, and extended over a period of several weeks, and was made by an expert machinist employed and furnished by the plaintiff. By reason of the failure of the machinery to have a capacity of 15 tons, the consideration has failed to at least the extent of one half the value of the machinery. Less than 15 tons daily would not make the business desirable and profitable, and did not suit her plans nor meet the demands of the trade, and the machinery was totally unsuited to the use intended. Further, the consideration has wholly failed, and she is entitled to recover the sum of $3,000 and interest, paid by her to the plaintiff, and prays judgment accordingly. By reason of the failure of consideration, and of the failure of the plaintiff to keep and observe its contract and all its obligations as aforesaid, defendant has been injured and damaged in the sum of $5,000, which she prays she may be allowed to recoup. Prior to this suit defendant tendered to the plaintiff the property, and demanded the return of her money; and the same was refused.</p> <p>The plaintiff demurred generally to the pleas, except that of the general issue. The judge announced that he would sustain the demurrer. Defendant thereupon offered, in connection with the pleas already filed, an amendment, to which plaintiff demurred generally. The court sustained the demurrer and struck the pleas, except that of the general issue. The amendment was, in substance, as follows: At the time of making the contract between the plaintiff and the defendant, a copy of which is attached, it was contracted that the defendant should have the benefit of all the terms, stipulations, conditions and guarantees made by the plaintiff in its contract with Bell & Sims, or with S. R. Sims, under which the original sale of the machinery was made by the plaintiff, a copy of which is hereto attached. The special guarantees set out in said contract were relied on by the defendant, and they were represented by plaintiff to enure to the benefit of defendant as purchaser, the.same as to the original purchaser, said Sims or Bell & Sims; said warranties and conditions [including] that as to the capacity of the engine and pumps being 15 tons per day, and also the five paragraphs numbered 1st to 5th inclusive, and embraced under the heading “the party of the first part guarantees,” and also all other covenants, conditions, terms, and stipulations contained in the contract. Said terms, conditions and guarantees were intended by both parties to be a part of the contract between plaintiff and defendant, and to be inserted in whatever written evidence of the contract might be entered into. The plaintiff delivered to the defendant a certain bill of sale, which briefly refers to said original contract and its place of record; and defendant, being in ignorance of the technical effect of said reference to the former contract, supposed that the reference was sufficient to embody the original contract with Bell & Sims, or Sims, in the contract with defendant. Defendant is now advised that it is doubtful Whether the reference in said contract to the Bell & Sims contract was legally sufficient to embody the provisions thereof in the contract with defendant, so as to give defendant the benefit of all the warranties and conditions contained in the Bell & Sims contract. If the legal effect of the contract made by the plaintiff with the defendant is not to embody therein the conditions and warranties of the Bell & Sims contract, it is due to a mutual mistake of law by both parties to the contract in supposing that the legal effect of said reference to the Bell & Sims contract was to embody the same [in the] contract with the defendant, or to a mistake of both parties in omitting from the contract a repetition of the terms, conditions and warranties in the Bell & Sims contract. The contract as signed (unless its construction is as contended by defendant) is therefore not the true contract between the parties, and in justice and equity defendant is entitled to have said contract reformed and made to speak the truth of the contract between plaintiff and defendant. Wherefore defendant, by way of cross-petition against plaintiff, waiving discovery, prays that the contract be reformed so as to include the covenants, conditions and warranties contained in the Bell & Sims contract, and that the defendant have such other and further relief as may be meet and proper; and further, that defendant have judgment against plaintiff for damages for breach of said covenants and warranties, as set out in defendant’s former pleas. Subsequently to the date of the contract whereby defendant obtained title to her interest in the ice plant (the bill of sale dated November 30, 1888, which should have contained the conditions and warranties of the contract of January 26, 1886, between plaintiff and Bell & Sims), plaintiff not only reiterated the original warranties and conditions in favor of Bell & Sims, but also, for a valuable consideration, expressly guaranteed that the engine and boiler were of the capacity of 17 tons per day, thereby guaranteeing two more tons capacity than the original guarantee, this guarantee being solely on the condition that a fair and full test should be made by an expert ice-machine operator to be furnished by the plaintiff. Accordingly the plaintiff sent its expert to make the test, and after a fair and full test the expert admitted that the ice plant, and especially the engine and boiler thereof, were not of the capacity guaranteed, but were of less capacity even than the original guarantee made to Bell & Sims. Said guarantee was in writing and properly signed by plaintiff by its duly authorized officer. Defendant is not able to attach a copy of said new guarantee, because it is lost, but defendant has stated the material parts of the guarantee. The original contract with Bell & Sims guaranteed the engine and pumps to be of 15 tons capacity, and the other parts of the machinery to be of 10 tons capacity. At the time of making the original guarantee, the ice-making machine in said Sims’s ice-factory was to be 10 tons capacity, that being sufficient for the demand in the city of Americus at the time, but in view of the fact that the demand was expected to increase, the pump and engine were intended and guaranteed to be of 15 tons capacity. It was contemplated by both parties that when the demand sufficiently increased, the owners of the plant would add an additional freezing-tank. Accordingly a six-ton freezing-tank Aras added to the plant; and prior to the addition of the six-ton tank it was manifestly impossible for the engine and boiler to be tested to any greater freezing capacity than that of the ten-ton freezing-tank. After the full and fair test made by the expert sent by plaintiff, and the demonstration beyond doubt that the engine and boiler were of less capacity than guaranteed by the plaintiff, defendant tendered her interest in the ice plant back to the plaintiff, aa'Iio refused to take the same; and subsequently defendant again demanded of the plaintiff that she be relieved from the contract, and be reimbursed for the money, as the plaintiff had solemnly obligated to do; all of which plaintiff refused to do, and which was in flagrant violation of the contract.</p> <p>The contract first referred to was as follows: “Georgia, Sumter County. This contract between the Consolidated Ice Machine Company, a corporation of Chicago, 111., and S. R. Sims, Bascom Myrick, and Virginia H. Gray, of the County of Sumter, State of Georgia, witnesseth, that the said Consolidated Ice Machine Company, on the 27th day of July, 1886, did conditionally sell-to said Sims certain machinery and implements for the manufacture of ice, together with all buildings containing said machinery and all appurtenances thereto, said conveyance being in writing and recorded in Book F, pages 183 to 187, of the records of mortgages in the clerk’s office of supe- ' rior court of said county, wherein said property is specifically described, as also the terms of sale. And whereas said Sims has failed to pay for said property according to said contract, and now comes and surrenders back to said company the possession, and all claims he might have had to one half-interest in said property, to be disposed of at will by said company, in consideration of which the said company releases the said Sims from a part of his indebtedness, to wit'the sum of five thousand four hundred and twenty-nine dollars and fifty-eight cents; and in consideration that Virginia H. Gray has executed and delivered to the said Consolidated Ice Machine Company her three promissory notes, one for one thousand dollars due 1st of October, 1889, one for seven hundred and thirty-five dollars due 1st of January, 1890, secured by a mortgage on real estate, the said company bargains and sells to said Virginia H. Gray, her heirs and assigns, one fourth-interest in said property, to wit one half of the whole interest surrendered back to said company by said Sims. And in consideration that said Bascom Myrick has turned over and transferred to said company one promissory note of Amos Clark for the sum of two thousand six hundred and ninety-four dollars and fifty-eight cents, due one day after date, secured by transfer of thirty-five shares of Brunswick Compress Company stock, the said Consolidated Ice Machine Company sells absolutely to said Bascom Myrick one fourth-interest in said property, to wit one half of the half-interest surrendered back by the said S. R. Sims. Given under my hand and seal this 30th day of November, 1888. [Signed] The Consolidated Ice Machine Company, per J. W. Shinkle, pres’t. Eugene T. Shinkle, ass’t sect.” (Seal.) “Georgia, Sumter County. I, S. R. Sims, the party named in the foregoing, ratify and agree to the terms of same, and hereby surrender back to said company the one half-interest as aforesaid, and consent to their .disposal of same as above. Witness my hand and seal, Nov., 1888. [Signed] S. R. Sims.”</p> <p>The other contract referred to was dated January 28, 1886, and was between the Consolidated Ice Machine Company and Bell & Sims. By its terms the first-named party was to furnish to the party of the second part a 15-ton ice-making machine, etc., for a sum stated; and it guaranteed as follows: “First, that only first-class materials and workmanship shall be employed in the construction of the machinery and apparatus, and that they will replace at their own expense any parts which may be found defective either in material or workmanship. Second, that the machine shall produce at least 20,000 lbs. of clear, solid, merchantable ice each twenty-four hours of operation. Third, that the machine will operate regularly and satisfactorily with proper care and attention. Fourth, that the maximum amount of fuel necessary to operate this machine each twenty-four hours shall not exceed three tons of first-class steam coal, with proper firing, and that the water necessary to operate this machine shall not exceed 45 gallons per minute at 75 degrees Fahr. Fifth, in event of the machine not fulfilling all that heretofore is guaranteed for it, the party of the first part agrees to remove the same at no expense to the party of the second part, and to refund to the party of the second part any and all moneys that they may have received on account of the same.”</p>

<p>The relation of landlord and tenant is indispensable to the maintenance of the proceeding authorized by section 4813 of the Civil Code, for the summary eviction of a person as a tenant holding over; and therefore, where in the trial of such a proceeding it appeared that the relation of landlord and tenant did not exist between the plaintiff and the defendant, but that the latter entered upon the premises, not in subordination to, but under a claim of title adverse to the former, a nonsuit should have been awarded.</p>

<p>Action for damages. Before Judge Sweat. Ware superior court. July 12, 1897.</p>

<p>1. Where negotiable instruments are given in liquidation of an open account, and suit is afterwards brought upon the account itself, the defendant is not entitled to set up such liquidation as payment of the debt represented in the open account, unless it be alleged and proved that the creditor accepted such negotiable instruments as payment, or that thereafter such instruments were in fact paid to him. If, however, the fact of liquidation be relied upon, not as payment, but as a defense to the action upon the account, upon the theory that there has been a substitution of another cause of action for the cause of action represented in the account, then such liquidation must be specially pleaded, with an averment that the negotiable instruments given in liquidation are outstanding at the time of the trial.</p> <p>2. There was no evidence that the account sued upon was ever transferred in writing; and the suit was therefore properly brought in the name of the party to whom it was originally payable.</p> <p>3. There was evidence sufficient to support the verdict.</p>

Petition for certiorari. Before Judge Sheffield. Early county. June 29, 1897. A general demurrer to an action in the county court was sustained, and the plaintiffs presented their petition for certiorari. ■Sanction of the petition was refused, and they excepted. The petition alleged : Plaintiffs, a copartnership, are materialmen.

<p>Equitable petition. Before Judge Sheffield. Terrell superior court. July 6, 1897.</p>

<p>Complaint for damages. Before Judge Spence. Dougherty superior court. April term, 1897.</p>

<p>1. Whether the action of a corporation in rescinding a resolution previously adopted, by which a dividend upon its capital stock had been declared, was or was not in a given instance valid, if in a resolution declaring another and distinct dividend it was expressly provided that the same was to be in lieu of the former dividend, and if a shareholder accepted payment of this latter dividend with knowledge of and in accordance with the terms of the last-mentioned resolution, he was'estopped from claiming payment of the first dividend.</p> <p>2. The evidence in this case demanded a finding that the plaintiff below, while his action against the company for the first dividend was pending, accepted payment of the second dividend on the terms and conditions above recited; and this being so, a verdict in his favor for the dividend sued for was contrary to law, and should have been set aside.</p>

Action for damages. Before Judge Spence. Doughertysuperior court. August 2, 1897.

<p>Appeal. Before Judge Smith. Pulaski superior court. January 14, 1897.</p>

<p>1. The actual possession of land by one who holds under a bond for titles is notice to a subsequent purchaser from the same vendor, of whatever interest the possessor has in the land, and such purchaser would take subject to the rights of the holder under the bond for titles.</p> <p>2. From the principle above stated, it follows that where one purchases property and goes into possession under a bond for titles, and the vendor subsequently conveys the land to another to secure a debt, and an execution issued upon a judgment rendered in a suit founded upon such debt is levied upon the land, and a claim interposed by the holder under the bond for titles, and it is shown that the subsequent purchaser at the time of the purchase also obtained possession of all the purchase-money notes then unpaid, given by the one holding under the bond for titles, and has received payment of the same, a verdict in favor of the claimant is proper.</p> <p>3. The evidence in the present case demanded a finding for the claimant, and the errors complained of are not such as to require the granting of a new trial.</p>

Petition for injunction. Before Judge Hart. Morgan county. September 3, 1897. For the former report of this case see 102 Ga. 274. On August 14, 1897, the court below passed an order to the effect that, the judgment granting an injunction in the case having been reversed by the Supreme Court, and the evidence in the case and the argument of counsel having been heard and considered at the time of granting the injunction, the injunction prayed for is refused.

<p>1. Though in the trial of an action brought in a justice’s court upon an open account it may have appeared that the account sued on had originally been due to a partnership of which the plaintiff was a member, if the evidence as a whole reasonably warranted an inference that the account in question had, before the bringing of the suit, been assigned to the plaintiff, a verdict in his favor should not, on the general grounds that it was contrary to law and evidence, be set aside on certiorari merely because there is in the record no evidence affirmatively showing that there was in fact a written assignment of the account.</p> <p>2. This court will not consider a point, argued here, to the effect that the superior court erred in taxing the costs against the plaintiff in a writ of certiorari which was in part sustained, when there is in the bill of exceptions no specific assignment of error as to this matter.</p>

<p>The defendant in an action upon a promissory note purporting to have been given “for value received,” and expressing no other consideration, may by plea set forth what was the real consideration, and allege facts showing a total or partial failure thereof; and a plea of this nature should not have been stricken on the ground that it sought by parol to vary the contract sued on and add to its terms a condition not therein expressed.</p>

Complaint in trover. Before Judge Smitli. Dodge superior court. , March term, 1897. The Citizens Banking Company of Eastman brought its action against Peacock & Carr for the recovery of 67 bales of cotton, described in the petition, and alleged to be of the value of-$5,000, to which the plaintiff claimed title.

<p>Equitable petition. Before Judge Smith. Wilcox superior court. March term, 1897.</p>

Action for damages. Before Judge Smith. Telfair superior court. April term, 1897.

<p>Action on bond. Before Judge Smith. Wilcox superior court. March term, 1897.</p> <p>Covington, sheriff, suing for the use of Bullock, Bush & Co., brought an action against W. C. Barfield as principal, and W. B. Owens as surety, on a forthcoming bond. The case by consent was tried by the court without a jury, upon an agreed statement of facts, and judgment was rendered for the plañir tiff against the defendants for $100 ; whereupon they excepted. The agreed statement of facts was as follows: “ 1. That L. C. Covington, sheriff, levied, on the 12th day of October, 1894, a certain execution upon a common-law judgment in favor of Bullock, Bush & Co. v. W. C. Barfield, for $128.81 principal, $20.45 interest, and $8.85 costs, on property hereinafter described ; that said Barfield, as principal, and W. B. Owens, as security, executed and delivered to L. C. Covington, sheriff, a forthcoming bond in the sum of $216.22, for the faithful delivery of the property levied on, at the time and place of sale. 2. That the property levied on was legally advertised for sale on the first Tuesday in December, 1894; which property consisted of three bales of cotton and fifty bushels of corn. 3. That said Barfield was at the time of said levy a tenant of said Owens, having rented from him a farm for the year 1894, and said cotton and corn were grown upon said land by said Bar-field in 1894. Said Barfield was indebted to said Owens for rent for said year 1894, in a sum equal to the value of said cotton. 4. That said Owens applied said cotton to the payr ment of his said rent before the day of sale, but after the giving of said forthcoming bond. 5. That prior to said day of sale said Owens sued out a distress warrant against said Bar-field and placed the same for enforcement in the hands of L. 0.-, Covington, sheriff. 6. That on said day of sale said Barfield and Owens failed and refused to produce said cotton and corn, said Owens stating that he had sold said cotton and applied the proceeds of the same to his rents. . . It is further agreed that the property levied on . . was worth $100. It is further agreed that the corn levied on was claimed by the wife of the defendant in fi. fa. before the day of sale, and she had placed her claim bond in the hands of said Covington, sheriff, which bond was accepted by him.”</p>

<p>1. To authorize a recovery of damages for a malicious prosecution, it must, under the provisions of the Civil Code of this State, appear not only that a criminal prosecution was maliciously instituted, but also that the same was maliciously carried on”; that is to say, some progress beyond suing out a warrant must have been made, in order to give a right of action to the injured party.</p> <p>2. Simply making an affidavit before a justice of the peace, charging one with an offense against the criminal laws of this State, when not followed up by an arrest, does not render the prosecution, even if malicious and without probable cause, actionable. Before it would become so, there must at least have been an arrest and an inquiry before a committing court.</p> <p>3. Accordingly, where a petition alleges that the defendant swore out a warrant before a justice of the peace, charging the plaintiff with a criminal offense, which was not followed by having the warrant placed in the hands of an officer to execute, nor by the arrest of the defendant, nor by any further prosecution of the charge, this did not, under our law, constitute a malicious prosecution from which a right of action could arise.</p>

Ejectment, etc. Before Judge Smith. Irwin superior court. April term, 1897. This was an action for the recovery of land in Irwin county and damages for cutting timber therefrom, the plaintiff claiming title under an alleged grant of the premises in dispute from the State to one Brisbane, and under a deed from Brisbane’s administrator to the plaintiff.

<p>1. The defense in a murder trial being that the accused shot and killed the deceased under the fears of a reasonable man that his own life was in danger, and there being evidence in behalf of the accused tending to show that, immediately before the homicide was committed, the deceased, upon provocation by words alone, placed his hand behind him and advanced upon the accused, it was erroneous to reject evidence offered to show that the deceased habitually and notoriously carried a pistol and that this was known to the accused. This is true whether upon the occasion of the homicide the deceased actually had upon his person a concealed pistol or not. Such evidence is in such a case admissible, however, solely for the purpose of determining whether or not the killing was really done under the influence of reasonable fears.</p> <p>2. A witness for the State having denied under oath that he was very intimate and friendly with the deceased, it was competent for the accused to prove the contrary.</p> <p>3. It was not, however, on such trial competent for the accused to prove that on a former occasion, remote in time from the day of the homicide, he had done an act which incensed the deceased; it not appearing that what occurred on that occasion was followed up by any subsequent quarrels or difficulties between the accused and the deceased, or that the act of the accused on the previous occasion referred to tended to throw any light whatever upon his motive in taking the life of the deceased.</p>

<p>1. An allegation in the plaintiff’s petition, in an action for damages, that certain live stock were killed in a named county and district, is amendable by striking out the words “and district.”</p> <p>2. A county court established under section 4170 et seq. of the Civil Code has jurisdiction of an action of tort against a railway company whose line of road runs through the militia district of the county in which the county-site is located, although the tort complained of may have been committed in another district of that county, and although the amount of damages claimed is less than fifty dollars.</p> <p>3. A mere failure to prove the time when such tort was committed will not he cause for setting aside, on certiorari, a judgment in the plaintiff’s favor, on the general ground that the same is contrary to the evidence, there being no plea of the statute of limitations, and it not appearing that this defense was in any manner made or insisted Upon in the trial court.</p>

Action for damages. Before Judge Atkinson. City court of Brunswick. May term, 1897. Lucy Johnson sued for the homicide of her minor son, Peter Johnson, who, she alleged, was killed without fault on his part, and through the negligence of the defendant in the operation of its sawmill, while he was at work in its service as .a laborer in the mill.

<p>1. No one is entitled to relief from the consequences of neglecting to exercise ordinary care for his own protection and safety because failure to do so arose from an emergency brought about by his own act in voluntarily placing himself in a situation of peril.</p> <p>2. The evidence showing that the plaintiff by ordinary care could have avoided the injuries of which he complains, he was not entitled to recover, though the defendant was in some respects negligent; and consequently, there was no error in granting a nonsuit.</p>

Indictment for fornication. Before Judge Harris, City-court of Floyd county. November 3, 1897. The indictment against Louis Bass for illicit intercourse with Bessie Walker contained four counts, charging respectively fornication, adultery, adultery and fornication, and fornication and adultery, all alleged to have been committed on May 28,. 1897. Upon the indictment appear the names of J. M. Johnson, Abe Richardson and Robert Tripp as witnesses.

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

<p>1. Under the system of pleading and practice prevailing in this State, a petition containing allegations sufficient to authorize the recovery of real property therein described, as well as allegations authorizing the granting of equitable relief in relation to such property, is amendable by striking therefrom all allegations and prayers relating to the equitable relief, and leaving the petition to stand for the purpose of recovering possession of the property only.</p> <p>2. A deed to land situated in this State, executed in another State before a judge of a court of record of the latter State as one of the attesting witnesses, can not he admitted to record unless there he attached to it a certificate of the clerk of the court of which the witness is judge, under the seal of such court, showing that the signature of the judge is genuine. When a deed so executed is offered in evidence, it must be shown that the court of which such person'is judge is a court of record; and this fact may be shown either by a statement to that effect in the clerk’s certificate, or by other proper proof.</p> <p>3. Assignments of error upon charges and refusals to charge, depending entirely upon the evidence, can not be considered where the brief of the evidence is so confused that it is impossible to determine what was the testimony at the trial on the matters pertinent to such alleged error.</p>

Indictment for assault with intent to murder. Before Judge Candler. Fulton superior court. October term, 1897. Cunningham was indicted for assault with intent to murder, committed by shooting at Stanford with a pistol. After verdict of guilty, a motion for a new trial was overruled, and defendant excepted. The commission of the crime was proved, and the issue of fact was as to whether it was committed by defendant or another.

<p>1. Where in a sale of land the vendor delivers to the vendee a bond for titles conditioned to make titles upon the delivery to the vendor of certain described personal property, until such property is delivered or tendered the vendee has no interest in the land subject to levy and sale.</p> <p>2. In the present case there was no evidence that the property which was the consideration for the purchase was delivered or tendered before the levy, and a judgment finding the property subject to an execution against the vendee was contrary to law.</p> <p>3. It appearing from the record, however, that, by consent of parties and order of the court, the land has been sold and the proceeds held in court to await the final determination of this litigation, and that, on account of improvements made by the vendee after the purchase, the proceeds of the sale were far in excess of the market value of the land at the time of the sale, direction is given that the pleadings in the case be so amended as to set up whatever equities there may be in favor of any of the parties to the record and that final decree be entered preserving the rights of the parties.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. May 31, 1897.</p>

<p>Under the facts disclosed by the record, the court did not err in granting a nonsuit.</p>

<p>Libel for divorce. Before Judge Lumpkin. Fulton superior court. May 4, 1897.</p>

<p>' 1. If H., after signing as surety a number of promissory notes executed by various persons and payable to R., gave his own promissory notes to R. for the amount of all the other notes, in consideration of a promise by R. to release H. from all liability thereon, and also of an express contract by R. to diligently collect the notes on which H. was surety, or sue the same to judgment for H.’s benefit, the latter, in defense to an action against him by R. upon one of the notes last given, could set up that R. did not perform his contract, and that in consequence of his failure to do so II. sustained damage by reason of the fact that the makers of the notes originally given had become insolvent.</p> <p>2. H. could also set up in defense to such action that R. had actually made collections upon the notes originally given, and could set off the amount of such collections against the plaintiff’s demand.</p> <p>3. The court erred in striking on general demurrer the defendant’s special pleas, which in substance set up the defenses above indicated.</p>

<p>1. While the defense of “failure of consideration” is not available to defeat a recovery by the plaintiff in an action upon a promissory note whicfi was in renewal of one previously given for the purchase of personal property, when it plainly appears that this defense is based solely upon alleged defects in the property of which the maker of the note sued on had full knowledge before executing the same, a plea in effect alleging that the renewal note was given to the plaintiff in consideration of a promise by the latter to repair the defects, that this promise had not been performed, and that in consequence of the breach thereof the defendant had been damaged in an amount stated, was meritorious.</p> <p>2. This case, as to the point above ruled upon, differs from that of Edison General Electric Co. v. Blount, 96 Ga. 272. In that case there was not, as here, an allegation that separate and distinct damages resulted to the defendants from the breach of the new and independent promise by which they were fraudulently induced to sign the notes.</p>

<p>1. An accommodation indorser of a promissory 'note, sued jointly with the maker thereof, was not discharged merely because the plaintiff, after an entry of “default” had been made upon the judge’s docket, permitted one or more terms to elapse before entering up a final judgment in the case.</p> <p>2. Though in such case the principal filed no plea, and therefore could not be adjudged liable for attorney’s fees, yet if the note sued on stipulated for the payment of such fees in case it should be collected by law, the indorser, by filing and failing to sustain a plea whereby he sought to be discharged, became liable for the payment of such fees.</p>

Complaint. Before Judge Candler. Clayton superior court. March term, 1897. To the petition of J. T. Ward against Stewart & Ward the defendants demurred, and moved to dismiss it, upon the grounds that no bill of particulars or itemized account was attached to the petition, as required by law, and that the contract upon which the suit was based was void and barred by lapse of time. The court sustained the demurrer and dismissed the case, and the plaintiff excepted.

Indictment for perjury. Before Judge Henry. Floyd superior court. July term, 1897. The plaintiff in error was indicted for perjury; and his bill of exceptions is upon the overruling of his demurrer to the indictment.

<p>1. Where a motion is made to continue a criminal case upon the ground that the accused is physically unable to go to trial, and upon such question the testimony of medical experts introduced as witnesses is conflicting, the discretion of the trial judge in overruling the motion will not be controlled.</p> <p>2. Where the accused is in court and offers no sufficient reason for a postponement of the trial of his case, and the trial is in 'all respects legal and regular, it will not be ground for a new trial that he was improperly brought into court under an order of the judge.</p> <p>3. The evidence warranted the verdict, and there was no error at the trial.</p>

Exceptions to auditor’s report. Before Judge Lumpkin. Fulton superior court. March term, 1897. On May 31, 1894, Miss Hearn bought at receiver’s sale five city lots, upon each of which the erection of a house had been begun but had not been completed. The -purchase-price was $1,112, payable one third cash, one third on May 31,1895, and one third on May 31, 1896.

<p>It was error to allow the defendants in an action for services alleged' to have been rendered them in procuring a loan, under an express contract that they were to pay the plaintiff for such services a specified commission, to file a plea to the effect that the latter, at the time the defendants’</p> <p>■ application for a loan was presented to an insurance company by which such loan was made, was an agent of'that company, whose duty, as such, was to solicit applications for insurance therein, that the rules of such company forbade its agents to take or receive commissions for services in procuring loans from the company, other than their commissions on the premiums upon the insurance taken, and that the plaintiff could not, under the said rules of the insurance company, receive commissions, except as allowed by it; the plea not alleging that at the time the defendants accepted the loan the plaintiff’s position as agent of the insurance company was adverse to their interest, and that they were ignorant of the fact that he was such agent.</p>

<p>1. The statutory remedy providing for the assignment of dower, now contained in section 4697 et seq. of the Civil Code, must he. followed in all cases where it is applicable and adequate. If, however, such remedy is not applicable to a particular case, dower may still be assigned by a judgment of the superior court, rendered in the exercise of its equity powers. In cases where the statutory remedy is applicable so far as the setting apart of dower is concerned, but the aid of equity is necessary to the perfect enjoyment by the dowress of her estate when set apart, application may be made in the first instance to the superior court as a court of equity, not only for the equitable relief necessary to secure to the dowress the enjoyment of the property set apart, but also for an assignment of the dower.</p> <p>2. When a petition sets forth a cause of action, it is error at the trial term to dismiss the same on oral motion upon grounds which should have been taken advantage of by special demurrer or plea in abatement at the first term.</p>

<p>The evidence in this case presenting questions which should have been submitted to a jury, it was error to grant a nonsuit.</p>

Complaint. Before Judge Reid. City court of Atlanta. March term, 1897. Held: and said payment was accepted as payment in full, except plaintiffs herein, who, after payment had been made to other creditors, refused to carry out said agreement.

Action on insurance policy — certiorari. Before Judge Lump-kin. Fulton superior court. March term, 1897. Charles Hubert sued the defendant company upon a policy of insurance upon the life of a horse, and obtained in a justice’s court a verdict for $100'.

Petition for specific performance. Before Judge Lumpkin. Pulton superior court. March term, 1897.

<p>1. A power conferred by statute upon a city, “to pave again any street on which the pavements are worn out and useless,” necessarily carries with it the power to repave only portions of the street where the pavements on such portions are worn out and useless.</p> <p>2. An ordinance of the Mayor and General Council of the City of Atlanta providing for a repavement of a portion of one of the streets in said city is' not contrary to law because it does not require a street-railroad company, the tracks of which extend over said street, to do any part of the paving.</p> <p>3. The fact that owners of property bordering on such street paid an amount assessed against them to aid in defraying the cost of an original pavement thereon, does not give them such an interest in the material of the old pavement as will entitle them to an injunction against the city for the purpose of restraining it from removing said material in order to give place for a new pavement.</p> <p>4. The question of expediency or necessity of repaving the streets of the City of Atlanta, or any portion of said streets, is left to the discretion of said city, acting through its mayor and general council; and the courts will not interfere with the exercise of their powers within the scope of the authority delegated to them by law, unless it is made clearly to appear that their action has been arbitrary and unreasonable.</p> <p>B. The court did right in refusing the injunction in this case.</p>

<p>Land sold and conveyed by a husband to one who purchased bona Me and for value is not, though the sale and conveyance were made after the grantor had separated from his wife and while an action for divorce brought by her against him was pending, subject to an execution issued upon a judgment for alimony rendered in the divorce case, when it appears that such land was neither embraced in a schedule of the husband’s property filed in that case, nor disposed of by the final verdict and judgment therein. Mere knowledge by such a purchaser o^ the separation, and of the fact that the divorce suit was pending, would not alone be sufficient to affect the latter’s title ; nor would the same be invalidated because the judgment in the divorce proceeding declared that the alimony thereby allowed should be a charge upon and bind all the property of the husband from the date of the separation.</p>

<p>1. One who purchases for the purpose of resale, this purpose being known to the seller, goods expressly warranted as to quality, is not bound to examine the same with a view to detecting latent defects before making a resale, but may do so on the faith of the warranty under which he bought. It was therefore, in the present case, error to charge, in effect, that it was incumbent on the defendant to exercise ordinary care in discovering the alleged latent defects in the goods which he had purchased from the plaintiffs, before selling the same to others.</p> <p>2. Except as to the matter above ruled upon, there was no substantial error in the charges complained of in the motion for a new trial.</p>

<p>1. The law recognizes no one even as an officer de facto, who fills an alleged public office that has no existence under any constitutional provision, or by virtue of any color of legislative enactment.</p> <p>2. Neither the constitution nor the legislature of this State has ever attempted to create the office of county policeman of Fulton county. It follows that an indictment which charges one with the offense of extortion, in that he did, by color of his office as such county policeman, wrongfully extort money from another, is demurrable on the ground that there is no such public officer under the laws of Georgia.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton county. January 28, 1897.</p>

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

Action on contract. Before Judge Berry. City court of Atlanta. May term, 1897.

Action for damages. Before Judge Reid. City court of .Atlanta. January term, 1897. Bates sued the railway company for damages from personal injuries alleged to have been caused by his being knocked •down by one of its cars, as he stepped from the rear platform •of another of its cars, upon which he was a passenger and which had stopped for the purpose of letting him off, the car that struck him being upon a parallel track and approaching •from an opposite direction.

<p>When a claim has been interposed to the levy of an execution, and the case - has been returned to a court which has no jurisdiction of such case and for that reason dismissed by that court, this gives no right of action by the plaintiff in fi. fa. upon the forthcoming bond made by the claimant.</p>

Equitable petition. Before Judge Sweat. Charlton superior court. March 30, 1897. On January 9, 1896, J. B. O’Quin brought his petition against Eli Lee and William Davidson, for injunction to restrain them from cutting and removing timber from certain land to which he claimed title, and for the recovery of damages for timber alleged to have been cut therefrom by them.

Complaint for land. Before Judge Lumpkin. Fulton superior court. March term, 1897. On June 5, 1896, Henry Davis, as trustee for his family, consisting of his wife Sylvia, and his minor daughter Hattie, sued for certain laud set apart to the plaintiff as a homestead for his family.

<p>Complaint on bond. Before Judge Reid. City court of Atlanta. March term, 1897.</p>

<p>1. It being in a contract of life-insurance stipulated that, “ if all stipulated payments or notes are not paid on or before the day when due, then, and in either event, this contract shall become null and void and all moneys paid thereon shall be forfeited to the said association,” a failure by the insured to pay on or before its maturity á promissory note given for the first premium worked a forfeiture of the policy. And this is true although the company, through its agent, made an effort to collect the note but failed to do so.</p> <p>2. The recovery had in the present case was contrary to law, and the court erred in refusing to grant a new trial.</p>

Affidavit of illegality. Before Judge Candler. Rockdale superior court. October term, 1896. Cook bought from Coffey a mule, and gave him a mortgage-upon it as security for the payment of a promissory note to Coffey for $65, part of the purchase-price, besides interest, and ten per cent, attorney’s fees in case of collection by suit.

<p>Foreclosure of lien — certiorari. Before F. A. Quillian, judge pro hac vice. DeKalb superior court. February term, 1897.</p>

<p>The general local option liquor law (now embodied in section 1541 et seq. of the Political Code) having been enacted on the 18th day of September, 1885, and never having been repealed, it was not, on the 10th day of December, 1895, within the power of the General Assembly to constitutionally enact a special statute prohibiting and making penal the sale of spirituous or intoxicating liquors within the corporate limits of a designated town or city. An act of this character is contrary to that clause of the constitution (embraced in §5732 of the Civil Code) which forbids the enactment of a special law in any case for which provision has been made by an existing general law. Little, J., dissenting. N</p>

<p>Indictment for assault with intent to rape. Before Judge Candler. Eulton superior court. September term, 1897.</p>

<p>Special pleas in bar in a criminal case must be in writing and filed on arraignment before pleading to the merits. It therefore follows that there was no error in the refusal of the court to allow evidence tending to show a former conviction, while the case was at issue upon the plea of not guilty; nor was there any error, pending the trial of this issue, in refusing to allow the defendant to file a plea of autrefois convict.</p>

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

<p>Action for damages. Before Judge Smith. Montgomery superior court. April term, 1897.</p>

<p>Indictment for assault with intent to murder. Before Judge Reese. Oglethorpe superior court. October term, 1897.</p>

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

<p>Where the charter of a city empowered the recorder to try offenders against its ordinances only, and, in a petition for certiorari from a judgment of conviction by such recorder, no ordinance appeared making penal the act of which the petitioner was accused and convicted, and it was alleged in the petition that there was no such ordinance, the court erred in refusing to sanction the writ of certiorari.</p>

<p>There being no evidence in this case to authorize the conclusion that when the accused and the deceased came together it was then and there understood, either by word, act or deed, between the accused and his brother, who did the killing, that they would enter into a difficulty with the deceased for the purpose of taking his life, it was error for the court, in its charge to the jury, to give the State the benefit of any such hypothesis.</p>

<p>Accusation of trespass. Before Judge Willis. City court of Columbus. January term, 1898.</p>

<p>Indictment for arson. Before Judge Callaway. Richmond •superior court. October term, 1897.</p>

<p>1. A copy of an instrument required by law to be registered, which has been taken from the proper registry, is admissible in evidence when the loss or destruction of the original has been satisfactorily shown. The preliminary inquiry in relation to such loss or destruction is addressed to the sound discretion of the presiding judge, and a greater or less degree of diligence will be demanded according to the circumstances and the character, nature, and age of the document. The fact that a due registration appears in the proper place is presumptive evidence of the existence of an original; and where such appears, and the evidence shows that a great many years have elapsed since the date of its execution, that the parties to it are dead, that diligent search has been made among the papers belonging both to living and deceased persons who were entitled to its custody, such loss or destruction is sufficiently shown to admit the copy as secondary evidence.</p> <p>2. Where the registry law required a marriage contract to be recorded in the office of the clerk of the superior court of the county of the residence of the husband within three months after its execution, and such contract recited that at the date of its execution the residence of the prospective husband was in a specified county, a record of the instrument made after the marriage and within the time prescribed was properly made in another county, when the marriage was not consummated until after the lapse of one month from the execution of the contract, and from the date of and subsequent to the marriage the husband continuously resided in the latter county.</p> <p>3. The validity of a contract executed on Sunday is to be determined alone by the statute law in force at the time of the execution of the contract, and when the statute governing the question declares that “no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business, or work of their ordinary callings, upon the Lord’s day (works-of charity and necessity excepted),” only those contracts which may be properly included as coming within the ordinary callings of the parties thereto are affected by the inhibition of the statute. A marriage contract is not one which.falls within the “ordinary calling” of the parties to the same.</p> <p>4. The case of Sanders v. Johnson, 29 Ga. 526, reviewed and affirmed.</p>

<p>1\ As against a plaintiff in an action of ejectment, who has shown title in himself, a valid prescription is not established in favor of the defendant when it appears that the latter purchased and entered upon the land in dispute, with knowledge that his vendor held solely under a bond for title made by the plaintiff, to whom a portion only of the purchase:money had been paid, and, with this knowledge, accepted from such vendor an obligation binding the latter to make title.</p> <p>2. Irrespective of other questions presented in the record, this case upon its undisputed facts is controlled by the law as above laid down; and it follows as a consequence that the verdict rendered was unlawful and ought to have been set aside.</p>

<p>Levy and claim. Before Judge Gamble. Tattnall superior court. April term, 1897.</p>

Petition for injunction. Before Judge Gamble. Tattnall county. October 23, 1897.

<p>Equitable petition. Before Judge Callaway. Richmond . superior court. April term, 1897.</p>

<p>1. A writ of error will lie direct to this court from the decision of the judge of the city court of Richmond county in a habeas corpus case.</p> <p>2. This was not a suit involving an extraordinary remedy, and section 5540 of the Civil Code, prescribing twenty days in which bills of exceptions should be presented in certain cases, did not apply.</p> <p>3. In the trial of a habeas corpus, sued out for the liberation of one who is sought to be extradited for the violation of the criminal laws of another State upon a warrant of the Governor issued upon a requisition of the demanding State, it is not admissible to hear evidence upon, or inquire into, the motives or purposes of the prosecution.</p> <p>4. The fact that the alleged offender had given bond in bail-trover in a suit against him for the recovery of the goods involved in the criminal charge constituted no legal reason for his release, and evidence thereof was inadmissible.</p> <p>6. The.question as to whether or not the alleged fugitive from the justice of another State is charged with a crime is one of law, and is always open upon the face of the papers to judicial inquiry. But if the indictment which forms the basis of the extradition proceedings substantially charges a crime in conformity to the laws of the demanding State, the prisoner should not be released, however defective such indictment might be either at common law, or under the well-known rules of criminal procedure.</p> <p>6. The indictment in this case is sufficient to raise the presumption that it conformed to the laws of the demanding State in charging a crime; and the burden was on the petitioner of showing the contrary.</p> <p>7. In a judicial inquiry as to what are the laws of such State, the courts, in a case of this character, will not be restricted to the rigid rule of considering only such testimony as may be formally tendered in evidence by the parties; but will seek the best sources of information at their command to ascertain the laws of the demanding State on the subject.</p> <p>8. The indictment above mentioned sufficiently charged a crime under the laws of Maryland to authorize the Governor of this State to issue his warrant for the arrest and delivery of the accused; and it not being made to appear that he acted contrary to law, or without its sanction, the judge below erred in releasing the prisoner from the custody of the agent of the State of Maryland.</p>

<p>Complaint for land. Before Judge Felton. Bibb superior court. April term, 1897.</p>

<p>Equitable petition. Before Judge Fite. DeKalb superior court. August term, 1897.</p>

Action to forfeit charter, etc. Before Judge Callaway. Chat-ham superior court. March term, 1897. The commissioners of turnpikes of Chatham county brought-suit under the Political Code, § 647. The defendant demurred on the grounds: (1) It holds its charter under acts of the legislature passed in 1859, whereas the law under which the-action was brought was passed in 1879. (2) The complaint, fails to allege a violation of its charter on the part of the defendant.

<p>The trial court having adjudged that a hew trial he granted unless the plaintiff would write off from the verdict and judgment all the excess thereof over and above a specified amount, which the plaintiff declined to do, this was in effect the general grant of a new trial; and it being the first grant of such new trial, and it not appearing that the law and the facts required the verdict rendered, this cohrt will not interfere.</p>

<p>1. Where an election has been held in a given county under the provisions of the local prohibition liquor law, embraced in sections 1541 to 1550 of the Political Code, and it has been duly declared that the result was ‘ against the sale, ’ ’ a person indicted under section 451 of the Penal Code, for violating the provisions of this law, can not by special plea or otherwise attack, for any reason, the validity of the election.</p> <p>2. The evidence in these cases fully warranted the convictions complained of; the penalties imposed were not excessive, and there was no error in refusing to sanction the petitions for certiorari.</p>

<p>Í. A county, being a corporation created by and existing under the laws of • this State, can exercise only such powers as are conferred on it by law; and when it undertakes through its constituted authorities to exercise the power of taxation in any given manner, a clear and manifest legal right to do so must appear.</p> <p>2. Construed in connection with preceding sections of the Political Code, the phrase “the per cent, levied,” as used in section 405, means a given per cent, upon the State tax levied for the year in question; and under the law embraced in that section, the county assessment must in each instance specify the particular county purpose for which this designated per cent, upon the State tax is levied.</p> <p>3. When, therefore, the county authorities of a given county imposed an arbitrary tax of fifty dollars for the year 1897 on all dealers in spirituous or malt liquors, etc., doing business in that county, relying for the power so to do upon the provisions of section 405, the imposition of such tax was unlawful-.</p> <p>4. The court erred in refusing to grant an injunction to restrain the collection by levy and sale of a tax imposed in the manner above indicated.</p>

Complaint on notes. Before Judge Sweat. Camden supexior court. August 5, 1897. Bennet, receiver of the Oglethorpe National Bank of Brunswick, sued J. .F. Bailey, administrator of J. S. Bailey deceased, as maker, and J. F. Bailey and Samuel C. Atkinson, as accommodation indorsers, upon two promissory notes, one for $2,000 principal, and the other for $1,000 principal, payable-to John D. Wright, cashier of the Oglethorpe National Bank, Brunswick, Ga.

<p>1. In a suit against an electric light and power company, brought by a widow for the homicide of her husband alleged to have been killed while in the employment of said company through the negligence of the defendant, the burden was on the plaintiff of establishing such negligence on the-part of the company, and this can not be done simply” by showing due-care on his part. It was, therefore, error for the court to charge in effect that the plaintiff would be entitled to recover if the husband’s life was lost through the negligence-of the defendant, or if it was not the fault of the plaintiff, and to charge further that “the servant must show that the master was at fault, or show that he was not at fault.” And this error is not cured by the judge in a subsequent portion of his charge giving the correct rule as to what burden the plaintiff should carry, without calling the jury’s attention to the mistake made in the previous part of his charge.</p> <p>2. Where testimony as to sayings of an employee of defendant, made at a. time when they could not have been considered as a part of the res gestas, was admissible only for the purpose of impeaching such employee as a witness, the court, upon request of defendant’s counsel, should have cautioned the jury that they should not consider such sayings as admissions binding the defendant.</p> <p>3. It was not admissible for a witness, who was not shown to be an expert, to testify, over the objection of counsel, that the deceased was doing the work he was required to do at the time of his death in a proper or an improper manner; such testimony being an expression of an opinion, and not a statement of a fact.</p> <p>4. There was no material error in the rulings of the court complained of in the grounds of the motion for new trial, not dealt with in the preceding notes; and, except as above specified, the charge of the court substantially and fairly covered the issues in the case.</p>

<p>1. This case, in so far as the questions made relate to the attaching of the bar of the statute of limitations, is controlled by the decision of this court in Black v. Holland, 102 Qa. 523, which, upon a review thereof, is affirmed.</p> <p>2. The statutes relating to the limitation of actions being expressly made applicable to courts of equity, those courts will not, where the bar of the statute has attached, remove the same merely because of a mutual mistake of law of the parties as to the legal sufficiency of a credit entered upon an evidence of debt to constitute a new promise from the date of which the statute would begin to run. ,</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. April term, 1897.</p>

Complaint. Before Judge Smith. Pulaski superior court. February term, 1897.

Affidavit of illegality. Before Judge Smith. Telfair superior court. April term, 1897. To an execution issued by Thomas J.. Wooten, J. P. of the-1485th district G. M., against the Southern “Railroád” Company, for certain sums which it stated were “adjudged against, them,” as principal, interest to date of judgment, etc., “upon a damage suit at the J. P.’s court held in and for the 1485 district G. M., on the 7th day of August, 1896, in favor of Benj.

<p>Injunction. Before Judge Lumpkin. Fulton county. October 12, 1897.</p> <p>On April 26, 1892, Sterling, as trustee of three Johnson children, sold to Hanye, under bond for title, a parcel of land in the city of Atlanta in land lot 50 of the 14th district of Fulton ■county, described as beginning at the northwest corner of Linden and Willow streets, and running thence north along the west side of Willow street 290 feet,- thence west along the line of T. J. Swift’s property 75 feet, thence south parallel with Willow street 128 feet, thence west 35 feet along Jones line, thence south along the line of Jones and Hilton 164 feet to Linden street, thence east along the north side of Linden street 110 feet to beginning point, for $6,001; on which Hanye paid $1,001 and interest up to April 26, 1896, making a total of $2,601 paid. Hanye defaulted in the payment of the semi-annual interest which fell due in October, 1896; and thereupon Mrs. Johnson as trustee, having been appointed such in the place of Sterling who had died, brought suit and obtained judgment against Hanye in Fulton superior court, for the amount due by him on the contract of purchase, filed a deed to Hanye for the purpose of levy and sale, and had the sheriff to levy on the property to satisfy the judgment. In the entry of levy occurred an error in giving the line of the .property along Willow street as being 210 feet instead of 290 feet, and said entry also failed to state in what county, district, land lot or city the property was situated; the description in other respects following that in- the bond for titles. These defects were continued in the'advertisement of sale, and the first of them was made in the deed which was filed. On the day advertised for sale, Hanye brought his petition for injunction to prevent it from taking place, and for a restraining order until final hearing, alleging that the errors before mentioned are prejudicial and injurious to him, and he fears they are likely to depress the sale and prevent the property from bringing as full a price as if correctly described, and that therefore there is danger of the execution not being fully satisfied or as nearly so as it would otherwise be. He avers that he is willing that the sale of the property should occur, if made under a proper judgment after proper deed is filed and proper levy and advertisement made according to law. He has presented to the sheriff an affidavit of illegality setting up the foregoing facts, and the sheriff has refused to accept it.</p> <p>Mrs. Johnson answered, that in her suit against the plaintiff in describing the property she alleged that the east line of it was 210 feet, when in fact it should have been 290 feet, the description being in all other respects correct and in full conformity to the deeds conveying the property; that this error occurred in the verdict and judgment predicated on her suit, and in making her quitclaim deed for the purpose of levy and sale she followed the description as set out in the suit, verdict and judgment, believing that she was conveying fon said purposes the entire property theretofore ■ sold to Hanye; and that she is willing that the entire record in said suit be made to conform to the deeds conveying the property. She therefore prays that the suit, verdict, judgment and levy be so amended as to make it conform to the truth, and to follow the description as set out and embraced in the deed from Sterling, trustee, as set out in the petition, and that upon her filing quitclaim deed correcting the deed of file so far as relates to the error in the description, the sheriff cause the property to be sold under the levy now in force, without readvertisement, at the next sheriff’s, sales day succeeding the judgment of this court.</p> <p>The court granted the injunction as prayed for; and held that there was no jurisdiction at this interlocutory hearing in advance of the appearance term to render a final decree correcting said error, or to grant the prayers of defendant upon mere motion at this time.</p>

Complaint. Before Judge Eve. City court of Richmond county. May term, 1897.

Appeal. Before Judge Reese. Lincoln superior court. November term, 1896. Coleman sued Steed upon a promissory note for $65.25, dated December 11, 1895, due; ninety days after date, and payable to Craig & Pitner or bearer. The note bears an entry of transfer by Craig & Pitner to Coleman, dated December 20, 1895.

<p>Indictment for assault with intent to rob. Before Judge Harris. Coweta superior court. March term, 1897.</p>

<p>Indictment for murder. Before Judge Hutchins. Gwinnett superior court. September term, 1897.</p>

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

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

<p>Complaint on account. Before Judge Sweat. Camden superior court. July 30, 1897.</p>

<p>Habeas corpus. Before Judge Sweat. Ware county. July 20, 1897.</p>

<p>Action for damages. Before Judge Sweat. Ware superior court. August 4, 1897.</p>

<p>Levy and claim. Before Judge Smith. Dodge superior •court. March term, 1897.</p>

<p>Action for damages. Before Judge Sweat. Charlton superior court. July 15,1897.</p>

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

<p>Complaint on account. Before Judge Smith. Dodge superior court. March term, 1897.</p>

<p>Action of trespass. Before Judge Smith. Wilcox superior court. March term, 1897.</p>

<p>Injunction. Before Judge Smith. Telfair county. May 27, 1897.</p>

<p>Affidavit of illegality. Before Judge Smith. Wilcox superior court. March term, 1897.</p>

<p>Foreclosure of mortgage. Before Judge Smith. Wilcox superior court. March term, 1897.</p>

<p>Complaint on account. Before Judge Smith. Montgomery superior court. June 23, 1897.</p>

<p>Indictment for murder. Before. Judge Hutchins. Walton superior court. August term, 1897.</p>

<p>Indictment for robbery. Before Judge Littlejohn. Sumter superior court. October 20, 1897.</p>

<p>Indictment for larceny. Before Judge Sweat. Camden superior court. October term, 1897.</p>

<p>Motion to reinstate. Before Judge Lumpkin. Fulton superior court. March term, 1897.</p>

<p>Injunction. Before Judge Lumpkin. Fulton county. October 4, 1897.</p>

<p>Equitable petition. Before Judge Smith. Montgomery superior court. April term, 1897.</p>

<p>Motion to set aside judgment. Before Judge Berry. • City, court of Atlanta. May term, 1897.</p>

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

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

<p>Motion for new trial. Before Judge Berry. City court of Atlanta. May term, 1897.</p>

<p>Complaint for damages. Before Judge Reid. City court of Atlanta. March term, 1897.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. January term, 1897.</p>

<p>Petition for certiorari. Before Judge Lumpkin. Fulton county. June 23, 1897.</p>

<p>Motion for new trial. Before Judge Spence. Decatur superior court. July 31, 1897.</p>

<p>Foreclosure of mortgage. Before Judge Lumpkin. Fulton superior court. March term, 1897.</p>

<p>. Indictment for adultery. Before Judge Freeman. City court of Newnan. October term, 1897.</p>

<p>Petition for injunction. Before Judge Butt. Marion county. November 3, 1897. •</p>

<p>Action on insurance policy. Before Judge Littlejohn. Sumter superior court. May term, 1897.</p>

<p>Complaint on draft. Before Judge Reid. City court oif Atlanta. January term, 1897.</p>

<p>Assumpsit. Before Judge Berry. City court of Atlanta. .May term, 1897.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. May term, 1897.</p>

<p>■ Action for damages. Before Judge Reid. City court of Atlanta. May term, 1897.</p>

<p>Action for damages. Before Judge Fite. DeKalb superior court. August term, 1897.</p>

<p>Money rule. Before Judge Candler. DeKalb superior court. May 7, 1897.</p>

<p>Indictment for assault with intent to rape. Before Judge Hutchins. Gwinnett superior court. September term, 1897.</p>

<p>Indictment for gaming. Before Judge Fite. Cobb superior court. November term, 1897.</p>

<p>Complaint for land. Before Judge Gamble. Bulloch superior court. January 29, 1897.</p>

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

<p>■ Indictment for murder. Before Judge Eeese. Madison-superior court. September term,'1897.</p>

<p>Certiorari. Before Judge Hutchins. Walton superior court. August 28, 1897.</p>

<p>Levy and claim. Before Judge Spence. Dougherty superior court. April term, 1897.</p>

<p>■ Complaint. Before Judge Reid. City court of Atlanta. May term, 1897.</p>

<p>Action for damages — certiorari. Before Judge Candler. DeKalb superior court. February term, 1897.</p>

<p>Motion for new trial. Before Judge Lumpkin. Fulton superior court. July 30, 1897.</p>

<p>Motion to set aside judgment. Before Judge Eve. City coúrt of Richmond county. January 13, 1897.</p>

<p>Action on contract. Before Judge Gamble. Bulloch superior court. April term, 1897. ■</p>

<p>Complaint on notes. Before Judge Felton. Bibb superior court. April term, 1897.</p>

<p>Assumpsit. Before Judge Falligant. Effingham superior court. May term, 1897.</p>

<p>' Certiorari. Before Judge Harris. Carroll county. April 2, 1897.</p>

<p>Complaint. Before Judge Candler. Burke superior court. December term, 1896.</p>

<p>Garnishment. Before Judge Callaway. Richmond superior court. April term, 1897.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. July term, 1897.</p>

<p>Appeal. Before Judge Felton.' Crawford superior court. March term, 1897.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. April term, 1897.</p>

<p>Complaint on note. Before Judge Reese. Elbert superior court. March term, 1897.</p>

<p>Claim. Before Judge Spence. Dougherty superior court. April term, 1897.</p>

<p>Complaint. Before Judge Eve. . City court of Richmond county. • May term, 1897.</p>

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

<p>Motion to reinstate. Before Judge Falligant. Chatham superior court. June term, 1897.</p>

<p>Equitable petition. Before Judge Felton. Houston superior court. April term, 1897.</p>

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

<p>Action for damages. Before Judge Ross. City court of Macon. June term, 1897.</p>

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

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

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

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

<p>Action for damages. Before Judge Ross. City court of Macon. June term, 1897.</p>

<p>1. Where in a criminal trial the judge, after reading to the jury the sections? of the Penal Code defining the offense with which the accused was charged, added: “It is under this law which the court has just given you in charge that the defendant has been indicted and which he is now being-tried for having violated,” it can not be fairly said that by the use of the words just quoted the judge “assumed that the defendant had violated the statutes referred to by the court in his charge.”</p> <p>2. The charge being simple larceny, and the accused having admitted the-taking of the property, but having set up the defense that he did so under the honest belief that the same belonged to his son, it is not cause for a. new trial that the court charged, “ and where one sets up a claim of right, the jury should be satisfied that the claim is a real, bona fide, honest claim, and not a pretended one,” when it appears that the judge in the-same connection gave the accused the full benefit of his theory, and plainly instructed the jury that if he in good faith took the property because he honestly believed he hada right to do so, he should be acquitted, and also-further charged that if the jury were léft in doubt as to this very question, there should be an acquittal. Taken in connection with all the instructions on this particular subject, it is manifest that by using the words last, quoted the court merely meant to leave to the determination of the jury the question whether the claim of the accused was bona fide or pretended; and in view of the entire charge there is no good reason for apprehending that the jury did not so understand or that they were in any manner ' misled.</p> <p>3. There was sufficient evidence to warrant the verdict; and the same having been approved by the trial judge, this court will not interfere.</p>

<p>1. Where a consignee of freight refuses to receive goods on account of damage done to them in the hands of the common carrier, and the goods are subsequently thrown back on the hands of the consignor, the latter has a right to bring an action for such damages against the carrier.</p> <p>2. Where a railroad company receives on its cars from a consignor, at its warehouse in a city, freight to be conveyed from its depot in another portion of the same city to a point of destination beyond its line, which cars are furnished at the request made of it by the consignor, and where the entire freight charges are paid by the consignor to such company for transportation of the goods from its depot, this company is the initial ■carrier, and as such is responsible for any liability for the loss or damage ■of the goods in the course of transportation. This is true notwithstanding another railroad company owned the spur-track leading from the ■warehouse of the consignor to a point intermediate between there and the depot above mentioned, and received compensation for trackage or for the transfer over its spur-track, it appearing that the latter company received no portion of the freight charges, and did not undertake a through transportation of the goods.</p> <p>~B. The facts in this case demanded the verdict found by the jury; and if there were any errors in the rulings or charges of the court complained •of, they were immaterial; and the court did right in overruling the motion for a new trial.</p>

<p>A judgment rendered against an administrator, in an action brought against him for materials furnished in repairing and improving the realty of his intestate, can not be supported, and should on his motion be arrested, when the case made by the plaintiff’s petition is, in substance, as follows: There was no administration on the estate of the deceased for several years after her death; one of the heirs took possession of the estate and. managed it for the benefit of all the heirs, “acting as their agent ”; as such agent and with the consent and approval of all the heirs, he contracted with the plaintiff for the materials in question, giving his promissory notes for a portion of the same, signing such notes as agent, and the remaining portion of the materials being furnished to him as such agent upon open account; the heirs accepted the materials and used and occupied as a dwelling the house upon which the materials had been used in making Repairs; the administrator, he being another of the heirs, upon his’ appointment “duly ratified and confirmed the action of said [agent] in contracting with petitioner as aforesaid, by accepting the articles, supplies and materials so furnished, and by using and occupying the property sa improved and repaired by the petitioner.” Such a petition made a caae against the heirs alone, and did not set forth a cause of action against the estate of the intestate. -The correctness of this proposition is not altered by the allegations relating to ratification by the administrator; his conduct in this respect being merely passive, and it manifestly appearing from the allegations of the petition relating thereto that he pursued the only course which he could have pursued in the premises.</p>

<p>1. The mayor and council of a city the charter of which authorizes them to “pass such ordinances as may be deemed necessary for the regulation of stock and other animals within the city,” and also contains the usual “general welfare clause,” have the power to pass-and enforce a penal ordinance requiring all persons keeping dogs on their premises within the city to register the same, procure a badge for each dog so kept, and pay a fee of one dollar for each registration and badge.</p> <p>2. “The power to regulate the keeping of dogs and to enforce such regulations by forfeitures, fines and penalties, is recognized as one within the police power,”</p>

<p>1. Under section 3702 of the Civil Code, an alteration in a promissory note will not necessarily discharge the maker from all liability thereon, unless such alteration was material and made by a person claiming a benefit under the note, with intent to defraud.</p> <p>;2. A promissory note payable generally “after date” and not otherwise expressing any time for payment is payable on demand; and therefore, .under section 3700 of the Civil Code, due immediately.</p> <p>3. The purchaser of such a note, even if the same is by its terms a negotiable instrument, takes it subject to the equities between the original parties.</p> <p>4. The foregoing is applicable to the notes sued on in the present case; and the same having been tried upon an erroneous theory with regard to the maturity of such- notes, and the court having consequently excluded evidence relevant and material to the defense, there should be a new hearing.</p>

Garnishment, etc. Before Judge Felton. Bibb superior court. April term, 1897. Upon a judgment in favor of Hattie A. Gunn against U. M. Gunn, process of garnishment was sued out and summons served upon Hill, Harris & Birch, who answered that they were not indebted, but that as attorneys for U. M. Gunn they had in their hands for collection a certain note and mortgage payable to U. M. Gunn and H. A. Gunn, guardian for Julia Gunn.

Trover — certiorari. Before Judge Reese. Elbert superior court. March term, 1897. On August 14, 1891, Miss Minnie L. Bell bought an organ of W. Y. Holland & Company, giving therefor her note, payable in two instalments, the first due November 20,1891, and the other one year afterward.

<p>Injunction. Before Judge Kimsey. Habersham county. December 31, 1897.</p>

<p>1. No person indicted for crime can, under sections 951 and 953 of the Penal' Code, as matter of right demand more than one trial upon a special plea of insanity at the .time of trial. If, after such a plea has been found against the person, the trial in chief has been postponed, it would be a-matter within the sound discretion of the judge whether or not another preliminary investigation upon the question of insanity at the trial should be had, and, if so, to what extent and in what manner the same should be conducted.</p> <p>2. An exception to the general and well-settled rule, that one is criminally responsible who had sufficient reason to distinguish between right and wrong as to a particular act committed by him, exists in a case where it appears that, though the accused had such knowledge, his will, in consequence of some delusion brought about by mental disease, was overmastered so that there was no criminal intent as to the act in question, and when it also appears that this identical act was connected with the peculiar delusion under which the accused was laboring.</p> <p>3. Under the evidence introduced in the trial of the present case, it was erroneous not to give in charge to the jury the written request embodying' the principle above announced, the same not being covered in the court’s-general charge to the jury.</p> <p>4. Where the defense relied upon in a trial for murder was irresponsibility arising from insanity at the time of the homicide, any evidence tending, to show the real mental condition of the accused at that time is relevant,, and his acts both before and after the homicide may be proved as tending to throw light upon the question thus put in issue. Accordingly, it was not erroneous to allow the State to introduce in evidence an affidavit sworn to and subscribed by the accused himself, at a previous term, for the purpose of obtaining a continuance, the probative value and effect of such evidence being a matter solely for the determination of the jury.</p> <p>■5. Save as stated in the third headnote, the record discloses no sufficient cause for ordering a new trial in this case; the charge of the court, with the exception above referred to, fairly presented to the jury the question-in issue; and the exceptions to it relating to other matters are not meri torious. There-was no material error in admitting or rejecting evidence. The foregoing covers all questions requiring special mention, which arose at the last trial and are likely to arise at the next.</p>

<p>1. It is legitimate and proper, when examining witnesses called to prove the good character of one on trial for crime, to inquire of them how long they have known him, for what length of time they have resided in the same community with him, and as to other like matters. Their answers to questions of this nature are relevant as tending to show their opportunities for acquiring a knowledge of the general character of the accused.</p> <p>2. The charge of the court in so far as it dealt with legal principles was free from material error, but it was in some respects argumentative, and for that reason subject to criticism; some of the remarks made by The judge when ruling upon questions arising during the trial were objectionable; a minor error was committed in permitting the introduction of hearsay testimony, but aside from this,’it does not affirmatively appear that any other illegal evidence was admitted.</p>

Levy and claim. Before Judge Callaway. Columbia superior court. March term, 1897.

<p>Action for damages. Before Judge Callaway. Columbia superior court. March term, 1897.</p>

<p>1. The county hoard of education of Richmond county has the discretionary power, under the law, of establishing or discontinuing high schools at such points in the county as the interests and convenience of the people may require.</p> <p>2. Under the facts of this case, there was no abuse of such discretion by the county board in discontinuing the high school established for the colored race, although it left in operation a similar school for white females, and contributed to the support of a high school for white boys and girls, which, however, it had not established.</p> <p>3. The provisions of the act “to regulate public instruction in the County of Richmond,” approved August 23,1872, investing the county board of education of Richmond county with the powers above designated, are not violative of any provision .of the constitution of this State or of the United States.</p>

<p>1. A plea which, in substance, alleges that the plaintiff’s action was brought in violation of a valid contract made by him not to bring the same before the happening of a specified event which has not yet taken place, is in effect a plea in abatement; and this being a dilatory plea can not, .over the plaintiff’s objection, be filed after the first term.</p> <p>2. A plea is not demurrable merely because “it [contains] new'facts and new defense which came into existence subsequent to the time the plaintiff’s right of action accrued and after the filing of the original” petition in the case. These grounds of demurrer, standing alone, even if true, are not sufficient to show that the plea should be stricken.</p> <p>3. There is no law in this State authorizing a judge to direct a verdict giving affirmative relief- to a defendant when the plaintiff’s petition does not admit facts warranting such a verdict and when no evidence at all is introduced.</p>

<p>j. Where land was sold, the purchase-money partially paid, a promissory-note given for the balance, and the vendor executed a bond conditioned. to make title to the vendee upon payment of the note, a tender by the-latter, after the maturity of the note, of the principal and interest due-, thereon, coupled with a condition that the vendor make and deliver to the vendee the conveyance called for by the bond, was not, under section 3728 of the Civil Code, a valid and lawful tender, the same not being “unconditional except for a receipt in full or delivery of the obligation.”</p> <p>2. Exceptions to refusals by the trial judge to allow a defendant to introduce evidence in support of specified contentions embraced in pleas are not-meritorious, when it does not appear what the evidence offered and rejected was. The same not being set forth, this court can not undertake to determine whether refusing to allow its introduction was or was not erroneous.</p> <p>3. Where a defendant who has filed several pleas, raising different issues in the case, during the progress of the trial, in open court,’admits all of the plaintiff's claim except so much thereof as is attacked and affected by one of the pleas, it is not erroneous for the court to instruct the jury that the only issue submitted to them is the one raised by this particular plea.</p>

<p>Action for damages. Before Judge Ross. City court of Macon. June term, 1897.</p>

<p>In a suit for damages growing out of a breach of contract required by the statute to be in writing, the petition is not demurrable upon the ground that it does not set forth whether or not the contract was in writing.</p>

<p>Petition for injunction. Before Judge Felton. Bibb county. December 17, 1897:</p>

<p>Motion to arrest judgment. Before Judge Reese. Wilkes superior court. May term, 1897.</p>

<p>Personalty was levied upon and claimed. The claimant gave a forthcoming bond and took possession of the property. Subsequently, it was found subject to the execution and advertised for sale, but was not produced at the time and place of sale. The levying officer then reseized the property, and, after again advertising, sold it under the execution. Held, that, under the facts recited, the claimant could not maintain an action of trover against the officer for this property.</p>

<p>1. Where on the same day several written instruments are executed and delivered by the same makers to a single person, each of which instruments embraces a promissory note and a mortgage upon the same realty, the notes maturing at different times, the mortgages may all be foreclosed together in a single proceeding, after the maturity of the last note.</p> <p>2. There was no error in rejecting evidence offered to prove failure of consideration, when there was no such plea or defense.</p> <p>3. The evidence warranted the verdict, and there was no error in denying a new trial.</p>

<p>Motion to set aside judgment. Before Judge Gober. Cobb superior court. March term, 1897.</p>

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

Petition for injunction, etc. Before Judge Sheffield. Terrell county. January 15, 1898. This is a petition for an injunction against the opening and operating of dispensaries for the sale of liquors under an act of the legislature approved December 10,1897 (Acts 1897, p. 562).

<p>1. The act of the General Assembly, embodied in section 4270 et seq. of the Civil Code, for the establishment of a city court “upon the recommendation of the grand jury of any county having a population of ten thousand or more, where a city court does not now exist,” is not a general law.</p> <p>2. The local act approved December 13, 1893 (Acts of 1893, p. 373), for the establishment of a city court for DeKalb county, is not in violation of par. 1, sec. 4, art. 1 of the constitution of this State, which provides that no special law shall be enacted in any case for which provision has been made by an existing general law.</p>

<p>Traverse of sheriff’s return. Before Judge Callaway. Richmond superior court. April term, 1897.</p>

Equitable petition. Before Judge Falligant. Chatham superior court. March term, 1897.

Complaint for damages.. Before Judge Norwood. City court of Savannah. July term, 1897.

<p>1. When in a claim case the plaintiff in execution offered an equitable amendment setting up that the claimant was estopped from denying that the property levied upon belonged to the defendant in execution, because the plaintiff in execution had rendered valuable services to the defendant in execution with reference to such property, which services were accepted bj' the claimant, but such amendment did not distinctly allege that the services were rendered with the knowledge of the claimant or that the plaintiff in execution acted upon the faith of any act or representation of the claimant which preceded the rendition of the services, there was no error in refusing to allow the amendment.</p> <p>2. The evidence in the present case demanding a verdict for the claimant, the court erred in granting a new trial.</p>

<p>Action for damages. Before Judge Ross. City court of Macon. June term, 1897.</p>

Trover. Before Judge Felton. Bibb superior court. April term, 1897. Cooke brought his action against Bryant for the recovery of certain personal property, and made an affidavit to require bail.

<p>1. A testator devised certain land to his wife for her life, and directed that after her death the same he divided into eight equal parts among his eight children, including his son Robert I. Then followed this provision in the will: “Item 6. My son Robt. I., whose whereabouts is not now known by me, and in case my wife' should survive him, my will is that his daughter Laura shall be sole heir to his portion of my estate.” More than seven years after the probate of the will, during which time Robert I. had not been heard of, his creditors sued out an attachment, and had it levied on his interest in the land, the widow of the testator being still in life. Held: (1) That the son, Robert I., took under the will only a contingent fee in remainder to his share of the land, which was not subject to levy and sale. (2) His daughter Laura, upon the death of her father during the lifetime of the widow, owned a vested fee in remainder to this share. (3) Such absence of the son creates a presumption of his death, and any judgment rendered against him upon the attachment proceeding is prima facie void. (4) His daughter Laura has such an interest in the land as authorizes her to institute proceedings to resist the levy and sale of the land, and to cancel any judgment rendered on the attachment.</p> <p>2. It follows that upon the trial of an equitable petition, to which the daughter is a party plaintiff, praying, among other things, for the cancelation of such judgment, it was error for the court to grant a nonsuit, the testimony for the plaintiffs showing the facts above related.</p>

<p>A claim for services alleged to have been rendered as a juror in a superior court is not collectable by a direct action against the county. If a person is entitled to compensation for such services, he should procure a proper certificate from the clerk of the court, which is by operation of law a warrant on the county treasury. If the clerk should improperly refuse to issue such certificate, he can be compelled to do so by mandamus.</p>

<p>Levy and claim. Before Judge Hutchins. Banks superior court. March term, 1897.</p>

<p>Action on administrator’s bond. Before Judge* Hutchins. Gwinnett superior court. January 23, 1897.</p>

Complaint for land. Before Judge Kimsey. Habersham superior court. January 26, 1897. Mrs. Keller made a deed to Edwards, dated April 25,1894, conveying a house and lot in Toccoa, and remained in possession thereof. On August 25,1895, Edwards made a deed to Nelms, conveying the same property. On February 11, 1896, Nelms sued Mrs. Keller to recover possession.

<p>1. Where an equitable petition prayed for injunction as to several distinct matters, and at an interlocutory hearing a judgment was rendered, granting in part, and in part denying the prayers for injunction, and that judgment was brought to this court for review by a bill of exceptions, alleging error in the court’s refusal to grant the injunction fully as prayed, and this court, because of errors in admitting evidence, reversed generally the judgment of the trial court and ordered a new hearing, the effect was to adjudicate that a new interlocutory hearing be had upon all questions of injunction involved.</p> <p>2. Such hearing, however, could not lawfully be had before the remittitur from this court had been filed in the office of the clerk of the court below ■, and this is so even though the conduct of counsel for the party objecting to such hearing might be fairly treated as a waiver of such filing. Notwithstanding such a waiver, the trial court was without power or jurisdiction to proceed with a new hearing, until in the manner above indicated it became authorized to do so.</p> <p>•3. At a hearing for an interlocutory injunction upon an equitable petition, - the allegations of which made a case entitling the plaintiff to injunction, the judge had no authority to dismiss “so much of the petition as seeks injunction or restraint against the defendant.” Even if, in his judgment, there should be no interlocutory injunction, it was still the right of the plaintiff to have a hearing before a jury with a view, to determining whether or not a permanent injunction should be granted.</p>

<p>1. Where under the traders’ act the property oí an insolvent debtor, on the petition of unsecured creditors (who filed the same for the benefit of themselves and such creditors as might join therein), was placed in the hands of a receiver, a creditor who held a mortgage executed and recorded prior to the filing of the petition, and who, between the dates of the appointment of the temporary and the permanent receiver, foreclosed her mortgage and placed the execution issued thereon in the hands of the sheriff, is not to be charged with any of the expenses of the receivership, or with costs, merely because of the fact that as soon as the permanent receiver was appointed she filed a petition in which she simply “ made known to the court the existence of her mortgage, pointed out the property on which it was a lien, and prayed that said lien be preserved and its priority protected.” Especially is this true when subsequently, by amendment to the original petition, the validity of the mortgage was attacked by the unsecured creditors, and it was prayed that the mortgagee he made a party defendant, which was done by the formal order of the court.</p> <p>2. When on the issue thus made the mortgage was declared to be free from fraud and valid, and it appeared that the property covered thereby had been sold by the receiver for an amount greater than that due on the mortgage, the mortgagee was entitled to have the amount due on the mortgage paid in full.</p> <p>3. So much of the fund in the hands of the receiver as was necessary to pay off the amount due on the mortgage was not subject to be diminished by costs and expenses of the receivership; but so much of such costs and expenses as could not be met by the general fund arising from the sale of the property of the debtor in excess of the amount of the mortgage, or not covered by the mortgage lien, should be taxed against the plaintiffs.</p> <p>4. When it appears that the whole property of the debtor is subject to liens of higher dignity than the mortgage, such as taxes, the court should order payment of such liens to be made from' the general fund before other allowances are made, and as against such general fund the amount necessary to pay off the mortgage arising from the sale of the mortgaged property is not subject to payment of such higher liens, unless it be shown that the surplus arising from the sale of the property beyond the amount necessary to pay off the mortgage is not sufficient to meet them; and in that case the fund necessary to pay the mortgage can only be diminished to the extent that such general fund is deficient.</p>

<p>Application for alimony. Before Judge Sheffield. Terrell 'County.' November 24, 1897.</p>

Equitable petition. Before Judge Felton. Bibb superior court. November term, 1896.

Petition for certiorari. Before Judge Felton. Bibb county. May 24, 1897.

<p>1. In a suit by a landowner against a municipal corporation for damages alleged to have resulted from grading its streets in such manner as to leave the’ land inaccessible by ready approach from the street, it was error for the court to charge that if ‘ the plaintiff could still have met the change in the grade of the city’s streets by merely changing the grade of her own street, and in consequence the market value of the property was not decreased, then the plaintiff in this case would not be entitled to recover anything from the city.”</p> <p>2. In such a suit, where the change in the street complained of by the plaintiff was made several months prior to bringing the action and several years prior to the trial of the case, it was error for the court to admit testimony, and to charge the jury thereon, as to a general plan contemplated by the city, which, if carried out in this particular instance, would make further changes in the sidewalk and would diminish the damages to plaintiff’s property alleged to have occurred.</p> <p>3. Other than as above indicated, there was no material error in the rulings complained of.</p>

<p>Trover — certiorari. Before Judge Felton. Bibb superior •court. April term, 1897.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. April term, 1897.</p>

<p>The petition alleged that the plaintiff had rented land from the defendants, two persons described as members of a firm and as owners of the land; that under such contract plaintiff entered into possession, and during the term of rental was wrongfully ejected from the premises by one of the defendants, such conduct being distinctly alleged to be a breach of the contract of rental. There were also allegations, in reference to the damages sustained, which might be construed as claims growing out of a tort. Held, that, construing the petition as a whole, it was the intention of the pleader to bring suit for breach of contract, and that it was error to dismiss the same on demurrer on the ground that it defectively set forth a cause of action for a tort.</p>

<p>1. - It is incompetent to prove by parol the contents of a judgment.</p> <p>2. Where it is a material subject of inquiry as to when a partnership began to transact business as such, books identified as those of the partnership and proved to have been correctly kept, offered for the purpose of showing the date of the'first entries thereon, are admissible in evidence as constituting parts of the res gestse of the matter under investigation.</p> <p>3. The agent of a corporation is not, in a case to which it is a party, incompetent to testify as a witness in its behalf concerning transactions had between himself, as such agent, and another person since deceased whose legal representative is the other.party to the case. Though this court, in this case, at the October term, 1893 (93 Ga. 127, 145), announced a contrary view, the question of the bearing of the evidence act of 1889 upon the admissibility of the testimony then under consideration was not really presented for decision.</p> <p>4. If after an agreement to form a partnership had been made, but before the time fixed by the terms of such agreement for beginning the transaction of the partnership business had arrived, one of the proposed members of the firm borrowed money for his individual use and benefit from a bank, giving therefor a promissory note in the name of the partnership, a subsequent renewal of such note by this member in the partnership name after the transaction of the partnership business had actually begun, but without the knowledge or consent of his copartners, was not binding upon the partnership, although the bank took the first note in good faith, and under the belief that it was a valid obligation of the partnership, and in like good faith allowed it to be renewed.</p> <p>5. The fact that the cashier of such bank had “ lost money on” the partner who gave and renewed such note was totally irrelevant to the question " whether or not the bank could enforce collection of the renewal note as a debt of the partnership.</p> <p>6. Evidence that members of a partnership, after beginning the transaction of the partnership business, ratified certain unauthorized acts done in its behalf, and in anticipation of its formation, by one who was to become a member of such partnership, is not proof of the ratification of another unauthorized-act so done by such person at a time when he had no power to act in its behalf.</p> <p>7. The charges complained of were objectionable as being to some extent argumentative and as presenting with too much stress and detail the defendant’s contentions of fact.</p>

<p>1. While, in equity cases, “it is the province of the judge . . to determine upon whom the costs shall fall,” he has no arbitrary power in this respect, but must exercise a sound discretion in deciding by whom the costs shall be paid.</p> <p>2. Under the facts of the present case, it was not a proper exercise of such discretion to tax against the plaintiff in error, who was entirely free from either fault or liability, any portion of the expenses of the litigation.</p>

<p>1. An equitable petition to enjoin a county treasurer from paying out, and another person from receiving money, can not, by amendment, be converted into an action against the former’s successor in office, and the latter, for the recovery of money actually paid out by the one to the other.</p> <p>2. The amendment in the present case having been improperly allowed, and there being, without the same, nothing to try, the trial and its resulte were nugatory.</p>

<p>Complaint on account. Before Judge Kimsey. Habersham superior court. March term, 1897.</p>

<p>1. An admission by the defendants in a proceeding to foreclose a negotiable “mortgage note,” that they executed the paper and that the plaintiff is the owner thereof, entitles them to open and conclude the argument.</p> <p>2. The mere fact that one of two joint makers of such an instrument is the wife of the other, there being nothing upon its face to indicate that she signed as a surety, is not, though her true relation to the paper was one of suretyship only, sufficient to charge a purchaser of the paper with notice of the suretyship.</p>

<p>Where a mercantile partnership came into possession of real estate as partnership assets, and one of the firm rented the same to a tenant; and where, after the expiration of the term of tenancy, such partner instituted proceedings to dispossess the tenant on account of his refusing to deliver possession after the expiration of his term ; and where such proceedings were arrested by the tenant upon the ground that, after the termination of his rent contract, he had bought the land by verbal agreement from the other member of the firm who was the managing partner, had paid the firm a part of the purchase-money therefor, and was in possession, not as a tenant holding over, but as a purchaser, it was error for the court to charge the jury as follows: “One man can not sell another man’s land, unless he is authorized to do so. He would be compelled to show the authority to sell the land. He would have to show a power of attorney to sell it, an instrument in writing, and executed in the same way that a deed is.” A dispossessory warrant will not lie against one who holds land under such an agreement, although the partner making the contract of sale had no written power of attorney to sell from his copartner.</p>

<p>1. Where an action was brought after the passage of the pleading act of 1893, but before the passage of the practice act of 1895, and no demurrer, plea or answer was filed at the appearance term, the case was in default.</p> <p>2. If, at the trial term of an action for unliquidated damages, the case be in default and no proper application to open the default is made, the defendant should not be allowed to file a plear and the only question for determination will be the amount of damages to which the plaintiff is entitled.</p> <p>3. Even if in such a case there should be a proper showing for opening the default, and the judge has the power to permit this to be done, it would nevertheless be erroneous to direct the trial to proceed “on the statement made by defendant’s counsel of what he would plead,’’ and allow the case to be conducted as though a written plea had been actually filed.</p> <p>4. The present case having really been in default, it was error to try it as if a valid defense -had been made.</p>

<p>Petition for injunction. Before Judge Fite. Dade county. December 1, 1897.</p>

<p>Rule against attorney. Before Judge Henry. Floyd superior court. January term, 1897.</p>

<p>Petition for mandamus. Before Judge Sheffield. Early county. January 14, 1898.</p>

<p>1. Relatively to an employee of a railway company, who, in the performance of his regular daily work for the company, had walked over or near a defective place in the track hundreds of times during a considerable period, and who had thus become fairly chargeable with a knowledge of the existence of the.defect, it was not on the company’s part an act of negligence to allow the same to remain unrepaired.</p> <p>2. If because of such defect the employee fell and was run over and injured by a locomotive, it would be a question for determination by a jury, taking into consideration the nature of the defect, its location, the employee’s movements with reference thereto, and all the attendant facts and circumstances, whether or not the fall was due to the negligence of the employee, or was merely the result of misfortune or accident. In determining this question, the jury should also inquire whether or not the employee, in the line of his duty, should have come in contact with the defect at all.</p> <p>3. Under the evidence in the present case, the defective condition of the “ frog” was not imputable to the defendant as an act of negligence. As, however, there was testimony warranting a finding that the engineer was negligent in failing to stop the locomotive after the plaintiff had fallen, and as the fall undoubtedly contributed to the injury the plaintiff received, the case should have been submitted to the jury, in order that they might pass on all questions of negligence, both as to the plaintiff and the defendant, arising upon the facts proved. It was, therefore, erroneous to grant a nonsuit.</p>

<p>Action for damages. Before Judge Fite. Whitfield supe-rior court. April term, 1897.</p>

<p>Equitable petition. Before Judge Falligant. Chatham superior court. March term, 1897.</p>

Certiorari. Before Judge Callaway. Richmond superior court. April term, 1897.

<p>Certiorari. Before Judge Callaway. Richmond superior court. April terra, 1897.</p>

Levy and claim. Before Judge Callaway. Columbia superior court. March term, 1897.

<p>Action for damages. Before Judge Ross. City court of Macon. June term, 1897.</p>

<p>A sale of all the shares of stock held by a shareholder in a national bank, when such sale is made under the provisions of and for the purpose set forth in section 5205 of the Revised Statutes of the United States, as amended by the act of June 30,1876, is void, unless at such sale the stock brings a price equal in amount to the assessment placed thereon under the provisions of that section.</p>