Volume 104 — Georgia Reports

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. January 31, 1898.</p>

<p>Where a petition for certiorari, seeking to set aside a judgment from a justice’s court, has been overruled, the petitioner can not afterwards, by affidavit of illegality to the levy of an execution issued upon such judgment, avail himself of any defense which was made or which could have been made as a ground of certiorari.</p>

Action for damages. Before Judge Fite. Whitfield superior court. April term, 1897. The suit was on account of personal injuries which the plaintiff received, as he alleged, by the negligent running of a railroad-train through the city of Dalton.

<p>1. One who subscribes for capital stock in a railroad company, under a contract entitling him to a certificate therefor upon payment of his subscription, may, in defense to an action by the company to recover the amount thereof, set up that it, after receiving his subscription, had sold and delivered all the stock it was legally entitled to issue, and had thus placed itself in a position where it could not comply with its part of the agreement.</p> <p>2. Such a defense is not, however, established by evidence showing that the company entered into an executory contract in writing with a third person to transfer to him all “of the common stock of said company,” and that by successive assignments this contract had passed to several different persons, it further appearing that the same was never so carried into effect as to prevent the company from delivering to the defendant the stock for which he had subscribed, but that, on the contrary, duly executed certificates of stock, blank as to names and number of shares, had been placed with the company’s financial agent in order that they might be properly filled out and delivered to the defendant and other subscribers upon payment therefor; that in this manner the company had all the while retained actual control of the stock subscribed for by the defendant, for the purpose of having the same delivered to him upon compliance with the terms of his subscription; that this purpose was understood and assented to by all of the several assignees; and that, accordingly, at the commencement of the company’s action it was in a position to deliver, or cause to be delivered, to the defendant the identical original stock for which he had subscribed.</p>

<p>When a sheriff, under a common-law judgment, lawfully sold property, expressly announcing that it was sold subject to the lien of a senior unforeclosed mortgage, the title of the defendant in execution was completely divested and the purchaser took subject to the mortgage lien. The subsequent satisfaction of that lien by the defendant in execution, or by another at his instance, would, in the absence of any fraud or collusion between him and such purchaser, operate to the benefit of the latter, and would not have the effect of revesting the legal title in the defendant in execution, so as to render the property subject to levy and sale under another judgment against him.</p>

<p>1. Where, in making payment for public work done for a county, the ordinary, by oversight and mistake of fact, pays the contractor more than was due under the contract, it is the right of the county to maintain an action for the recovery of the overpayment.</p> <p>2. There was no error in allowing the petition, in an action brought by a county against several defendants to recover an overpayment of money to them in settling with them for the building of a court-house, to be amended so as to make the same allege that the plaintiff contracted with the defendants to build the house for a stated sum, and that the defend-' ants had received upon county orders, issued and paid through the oversight and mistake of the ordinary and county treasurer, a specified amount in excess of that sum, to which the defendants were not lawfully entitled.</p> <p>3. Where the defendants’ answer to such a petition set up that one only of them had contracted with the county for the building of the court-house, and on that ground the other defendants prayed that they be discharged, it was erroneous to reject an amendment to the petition, alleging that at the time the money was paid by plaintiff’s officers through mistake, as alleged, these codefendants had associated themselves with the other defendant “in the completion of the court-house as partners, and as such partners . . participated with [him] in the receipt of the money so paid.”</p> <p>4. If an ordinary by mistake issued and delivered orders on the county treasurer to a person not entitled to receive them, the mere fact that the ordinary, as the agent of this person, collected and disbursed the money paid by the treasurer on such orders, would not affect the right of the county to a recovery against the person to whom some of the orders had been unlawfully issued.</p> <p>5. One who contracts with a county to build a court-house, and receives for the work more than is due to him, can not, in defense to an action against him for the overpayment, set up that the money was raised by a tax unlawfully levied and collected, and therefore did not belong to the county.</p> <p>6. The court erred in directing a verdict in favor of two of the defendants.</p>

<p>Equitable petition. Before Judge Janes. Douglas superior court. May 22, 1897.</p>

<p>Petition for injunction. Before Judge Smith. Irwin county. February 4, 1898.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. September 23, 1897.</p>

Exceptions to auditor’s report. Before J. T. Pendleton, judge-pro hac vice. DeKalb superior court. February term, 1897. In January, 1893, J. A. Mason was elected treasurer of the-County of DeKalb. He had been treasurer for two preceding terms. On February 1, 1893, he gave bond and took the oath of office. The securities on his bond were W. B. Smith, W. P. Medlock, and M. A. Steele.

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

<p>Petition to remove cause. Before Judge Eve. City court of Richmond county. March term, 1897.</p>

<p>Where all the plaintiffs in an action originally brought against a corporation of this State are residents thereof, and under an amendment filed by them citizens of another Stateare made parties defendant, the latter are not entitled, upon the ground of "diverse citizenship,” to remove the case to a circuit court of the United States.</p>

<p>Warrant to dispossess. Before Judge Fite. Catoosa superior court. February term, 1897.</p>

<p>Action on insurance policy. Before Judge Fite. Whitfield-superior court. April term, 1897.</p>

<p>Accusation of cheating and swindling. Before Judge Berry. Criminal court of Atlanta. December term, 1897.</p>

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

<p>1. If one result of the judgment prayed for in an equitable petition involving the title to realty would be to vest in the plaintiff a complete title thereto without making a payment to one of the defendants of the sum of $2,200, which payment the latter claimed was essential to plaintiff’s acquisition of such title, it was a case involving more than two thousand dollars.</p> <p>2. Where such a case was instituted in a State court, and the only controversy therein was between the plaintiff on one side, anda named defendant on the other, and they were citizens of different States, the case was removable to the Federal court, notwithstanding there was another defendant residing in the State where the action was brought, who had formerly been connected with the title to'the property in controversy, but who had parted with all interest in the same before the action was brought.</p> <p>3. Where a distress warrant issued by a justice of the peace was levied on land, and the defendant therein filed a “plea” which was subsequently dismissed by a judgment of the justice’s court, and no exception thereto was taken, or where no direct defense of any kind was made against such warrant, there was not, in either instance, any such “case in court” as that an equitable petition to restrain the further progress of the distress warrant and praying for further and independent relief as to matters over which the magistrate’s court had no jurisdiction, could be regarded as a mere ancillary proceeding. JJn the c^ptrary, such petition should be treated as the beginning of anew, distinct and original action.</p> <p>4. There was no error in adjudging that the present cases were lawfully removable to the circuit court of the United States.</p>

<p>Exceptions to decree. Befox’e Judge Candler. DeKalb superior court. July 8, 1896.</p>

<p>Prohibition. Before Judge Falligant. Chatham county. November 5, 1897.</p>

<p>1. The non-residence of the plaintiff affords equitable ground for the filing-by the defendant of a plea of set-off, although the latter’s demand against the former may have arisen after the commencement of the action.</p> <p>2. Where a plea of set-off alleges that the plaintiff, a corporation, is indebted to the defendant “upon open account, as hereinafter set forth,” and that the defendant sold and delivered to the plaintiff certain specified goods “at the dates shown in the bill of particulars hereto attached,” and it appears from an inspection of the account attached to the plea that the same is made out in the defendant’s favor against a corporation having a name different from that of the plaintiff, and this account purports to show that this latter corporation “bought of” the defendant the goods therein specified, such plea is not in all its allegations consistent; and if upon special demurrer thereto, pointing out its defects, it is not amended, there is no error in striking it. Little, J., dissenting. -s</p> <p>3. Though neither of the parties to a civil action pending in the city court of Macon may have demanded a jury trial before the close of the term to which the case was returnable, it was nevertheless within the power of the judge, at any term, to allow the case to be tried by a jury, if he saw proper to do so. There is nothing in the act of 1885, establishing this court, or in the amendatory act of 1894, which makes it his imperative duty to try any case without a jury.</p>

<p>1. By a will the executor or his successor, as trustee, was to take the prop^ erty of the testator and to hold the net income there of as a fund from . which to assist, in his discretion, the poor, the sick, and the distressed among certain named persons, the children of some of them, and the children and grandchildren of others, during the natural lives of such persons, children, and grandchildren; the property was then to go to the governing board of a certain church, and the rents, issues, profits and income were to be used for the relief of the poor of the white race of a certain church. Seld, that where at the time of the testator’s death there was no class of beneficiaries under the first bequest unrepresented, those subsequently born were not included by the terms of the will; and that therefore the interest of thegoverningboardand of the poor of the churches was not postponed longer than the length of lives in being at the time of the testator’s death.</p> <p>2. Under the above-recited facts, the trial judge did not err in sustaining a general demurrer to a petition which sought to set aside these items of the will on the ground that they were violative of the rule against perpetuities.</p>

Action for damages. Before Judge Fite. Gordon superior court. February term, 1897. The petition alleges, that on September 6, 1895, petitioner’s husband purchased a ticket of the railroad company for her transportation from Cartersville to Calhoun, paying therefor 90 cents. She was young, and had never traveled on cars before. She had recently been confined, and was then well with an infant in her arms.

<p>Complaint on note. Before Judge Fite. Bartow superior court. May 14, 1897.</p>

Equitable petition. Before Judge Fite. Whitfield superior ■court. April term, 1897. In 1888 R. H. Baker sold land to Ledford & Ridley for $2,-000, executing to them a bond for title, and agreeing to deliver possession of the land on January 1,1889; the purchasers agreeing to pay $500 cash on the delivery of possession, and giving for the balance of the purchase-money three promissory notes, each for $500, due respectively in 1890, 1891, and 1892.

<p>1. A general warranty of title in a deed against the claims of all persons whatever covers defects in the title, including liens and encumbrances, though known to the purchaser at the time of the execution of the deed.</p> <p>2. In a suit for a breach of warranty, the burden is on the plaintiff to show eviction under an outstanding paramount title or a superior lien upon' the land.</p> <p>3. Where a mortgage executed by one other than the warrantor is of older date than the deed from the vendor to the vendee, and has been foreclosed and a claim filed by the vendee to a levy of the mortgage fi. fa. upon the land, and the land found subject upon the trial of such claim, the consequent eviction of the vendee does not, without more, make out a case of breach of warranty.</p> <p>4. From the above it follows that the court did not err in charging the jury that, “before the plaintiff in this case can recover, she must show that the mortgagor in this case had title to the property mortgaged, or had a legal right to make this mortgage; and the mere fact that the mortgage is older than the deed from Osburn to Tabor, and was recorded, is not sufficient to authorize you to determine that, the title was in the mortgagor; nor would the fact that the property was levied on by execution issued from the judgment of foreclosure of this mortgage, and a claim interposed by the plaintiff, and the judgment finding this property subject to an execution, without notice to Osburn of said claim, he sufficient to show title in the mortgagor.” It follows therefore that the court erred in granting a new trial, the evidence demanding a verdict for the defendant.</p>

<p>In a suit against a railroad company by a landowner for a failure to erect cattle-guards as required by section 2243 of the Civil Code, it is incumbent upon the plaintiff to show upon the trial that such cattle-guards were necessary to protect his lands. Where the evidence shows on the contrary that there was no necessity for such cattle-guard prior to the time it was actually established by the company, a verdict for the plaintiff was contrary to the evidence and should have been set aside.</p>

<p>Complaint for land. Before Judge Candler. Bartow superior court. July term, 1897.</p>

<p>Petition for injunction. Before Judge Fite. Bartow county. December 24, 1897.</p>

<p>1. A written contract whereby the owners of realty, in consideration of a specified sum in cash and of another sum to be paid within a limited time, sell and agree to convey such realty to another or his assigns, is, though signed by the vendors only and though it contains a stipulation that “in case the balance of the purchase-money is not paid as before stated, then this agreement to be null and void and the money paid thereon to be considered as forfeited to the undersigned as liquidated damages,” nevertheless binding upon the vendors and capable of specific enforcement at ' the instance of an assignee of the original vendee, upon due compliance by him with its terms.</p> <p>2„ In such case a tender of the balance of the purchase-money within the time limited, and a continuing tender in the petition for specific performance/should be treated as equivalent to a compliance.</p>

<p>1. It is, in the trial of an action upon a promissory note, competent to prove that it was the last of a series of several renewals of a note originally given, and. also to prove what was the consideration of the first note, without producing it or any of the renewal notes.</p> <p>2. The charge of the court of which complaint is made in the motion for a new trial was, in the abstract, substantially correct, but it was barely authorized by the evidence ; and the verdict, if warranted at all, should he set aside because of error in rejecting testimony.</p> <p>3. The fact that a document tendered as a brief of evidence consisted, so far as related to the oral testimony, exclusively of questions and answers, did not render improper its approval by the judge, nor will such approval be set rside by this court merely because the paper contained some immaterial questions and answers; the judge certifying that it was made up from the official stenographic report of the trial, from which much immaterial matter was eliminated, and that, in his opinion, the efforts of counsel to make a legal brief sufficiently complied with the requirements of the law to render proper his approval of it as such.</p>

Complaint on note. Before Judge Hart. Greene superior •court. February term, 1897. In January, 1897, E. L. Taylor, as trustee, sued Felix Jarrell for $79.07 as balance of principal, besides interest from December 20, 1896, upon a promissory note for $175, made by Jarrell and payable to E. L. Taylor or bearer, dated November 20, 1895, and due one year afterwards.

Complaint for land. Before Judge Hart. Laurens superior court. January term, 1897. Mrs. Wright brought her action against Smith and Schaufele for the recovery of certain land and mesne profits. The defendants relied for title on a deed to the land, executed by the plaintiff to defendant Smith. The plaintiff attacked the deed as void, on the ground that it was executed for the purpose of extinguishing indebtedness of her husband.

<p>1. When a statute provides that contests arising over the election of municipal officers shall he filed with, heard and determined by the ordinary of the county wherein the election was held, the latter alone has jurisdiction in such cases, and the writ of prohibition does not lie to control the manner in which such jurisdiction shall be exercised, nor to prevent an erroneous exercise of the powers conferred.</p> <p>2. Nor can the writ of injunction he made directly or indirectly the method of trying the title to a public office.</p>

Complaint for damages. Before Judge Gamble. Bulloch superior court. January 29, 1897. In 1892 Mrs. Melvina Clark brought a suit against M. B. Lanier in the superior court of Bulloch county. The petition was as follows: “The petition of Melvina Clark shows that she has sustained damage of M. B. Lanier of said county, and alleges as follows: (1) That she is the owner of a tract of land in the 46th dist.

Injunction. Before Judge Gamble. Screven county. December 9, 1897. On August 10, 1895, Lanier and Rakestraw, physicians residing in the town of Oliver, formed a partnership for the practice of medicine, surgery, and obstetrics.

<p>Certiorari. Before Judge Kimsey. Hall superior court. January term, 1897.</p>

<p>Trover. Before Judge Kimsey. Habersham superior court. September term, 1896.</p> <p>Defendants purchased of plaintiffs a steam-engine and sawmill for $1,200, for which four notes of $300 each were given, under the terms of a written order therefor. The order states, that defendants agree to receive the machinery subject to the conditions of the .warranty herein contained, and to pay the notes with interest thereon, which are to be secured by personal or real estate security, and to be accompanied by a chattel mortgage or deed of trust on the machinery. The title to the machinery does not pass from plaintiffs until all the conditions of the order have been fully complied with. It is warranted to be of good material and durable, with good care and with proper usage to do as good work as any made in the United States, of similar style and like amount of use, and to be in good fair condition. If it will not bear the above warranty after a trial of ten days, written notice shall immediately be given to plaintiffs, stating wherein it fails to satisfy the warranty, and reasonable time shall to them be given to send a competent person to remedy its difficulty, the purchaser rendering necessary and friendly assistance. Plaintiffs reserve the right to replace any defective part or parts; and if then the machinery can not be made to fill the warranty, it is to be returned by the purchaser free of charge to the place where received, and another substituted therefor that shall fill the warranty, or the notes and money immediately returned and this contract canceled, neither party in such case to make or have any claim against the other. If plaintiffs at purchaser’s request shall render assistance of any kind in operating the machinery or any part of it or in remedying any defects, either before or after the ten days trial, such assistance shall in no case be deemed a waiver or excuse for any failure of the purchaser to fully keep and perform the conditions of this warranty. When at the request of purchaser a man is sent to operate the machinery, which is found to have been carelessly or ignorantly handled to its injury in doing good work, plaintiffs putting it in working order again, the expenses incurred by them shall be paid by purchaser. All warranties to be invalid in case the machinery is not settled for when delivered, or if this warranty is changed, whether by erasure, addition, or waiver, or if the purchaser shall in any respect have failed to comply therewith.</p> <p>Each of the notes for the deferred payments provides: “ít is a part of the contract of sale, that the title shall not pass from Malsby & Avery until all of said notes are paid; and if the amount of this note with interest is not paid at maturity, or in case of the removal of said machinery from the county of Rabun, or if the said machinery shall not be properly cared for, then the said Malsby & Avery may declare all our notes at once due and payable, and take possession of said machinery, sell or dispose of the same privately or publicly, ; . and after the payment of their debts and all cost, including counsel fees, pay over the remainder to us; the purchaser from them to receive a good and irrevocable title against me to the machinery, without offset of any kind.” .</p> <p>The suit was in bail-trover to recover the machinery; and the defense was as follows: Defendants made a conditional purchase of the property, upon a guaranty from plaintiffs that it was perfect, as good as new, and well and reasonably suited to the uses intended. Said representations were entirely false; the machinery was not perfect nor as good as new, and was not well and reasonably suited for the uses intended; and within two weeks defendant notified plaintiff of said facts. Upon said complaint being made, plaintiffs promised and assured defendants that they would make good their guaranty, and repair and refurnish all necessary defects and defective material; but they have utterly failed and refused to carry out and fulfill said promises. Fully believing that plaintiffs would carry out their contract and agreement, defendants paid to them $515 to be applied as a payment on the purchase-money notes. Defendants have suffered from loss of time in trying to use and work the machinery, in the further sum of $500 or other large amount. The contract between plaintiffs and defendants is null and void on account of said fraud, misrepresentations, and false promises; and now that plaintiffs have elected to recover the property, which defendants admit they have a right to .do, defendants pray that they may recover the two sums just named. Notwithstanding plaintiffs have elected to treat the contract of purchase as void and to retake possession of the property, they are proceeding to advertise and sell it as the property of defendants, under a power stated in the contract of purchase, which contract is now admitted by all parties to be void, rescinded, and abrogated; but plaintiffs are seeking to obtain the unfair advantage of selling the property now while under a cloud of litigation, purchase it at a very low price, and then proceed to collect the balance of the face of the notes out of defendants. Defendants attach a copy of the advertisement of sale. They contend that such power of sale no longer exists, and is null and void; and if not, they now revoke it, and deny plaintiffs any right to sell themselves, and say that, having seized the property as their own, they can not legally sell it under any pre-existing contract that is now abrogated, canceled, and void. Defendants pray for injunction to prevent such sale ; that the contract be declared void, _ and the rights of defendants set up and established ; and that plaintiffs be required to pay defendants the sums above set forth as due them.</p> <p>Under the evidence introduced and the charge of the court, the jury found that plaintiffs recover the machinery sued for, but that they pay the costs and pay the defendants $200, and surrender to defendants the notes given by them for the machinery. Plaintiffs moved for a new trial. The motion was overruled, and they excepted. For the other material facts see the opinion.</p>

<p>1. A special contract upon a railway excursion ticket, signed by the purchaser and in one item stipulating that the ticket should not be valid for the returning trip unless signed by the purchaser in the presence of a designated agent and “also witnessed and officially executed by said agent for the returning trip,” necessarily implied that it was incumbent upon the purchaser to use reasonable means of identifying himself as such to this agent.</p> <p>2. Where in another item of such contract the purchaser agreed to sign his name and otherwise identify himself as the original purchaser of the ticket, “whenever called upon to do so by an agent or conductor” of the lines named on the ticket, held, that, construing the two items together, and taking into consideration the nature and purposes of the ticket, the word “agent” as used in the latter item was intended to embrace and refer to the validating agent mentioned in the former, and that consequently the purchaser, if so required, was under the duty of identifying himself to that agent otherwise than by signing his name.</p> <p>3. One who enters a railway-train in possession of a ticket entitling him to ride thereon is, if he does so with the bona fide intention of using the ticket for the purpose of making the journey for which it is good, entitled to recover whatever damages he may sustain by reason of a wrongful expulsion, although he may, before going upon the train, have had reason to believe the ticket would not be accepted for passage by the conductor thereon.</p> <p>4. On the other hand, if one in possession of such a ticket enters a train, not for the purpose of making the journey called for by tlie ticket, but for the purpose of being put off, so as to make a case for damages against the railway company, he is, if ejected, entitled to nominal damages only. One of the defenses relied upon in the present cases being predicated upon this rule of the law, and there being evidence in support of the same, it was error to give in charge to the jury language which, in effect, entirely deprived the defendant of the benefit of this defense in case the jury believed its contentions of fact were well founded.</p> <p>5. It was, in the trial of an action by a married woman against a railway company for an alleged wrongful expulsion from the defendant’s train, erroneous to allow her counsel to comment to the jury upon evidence tending to show that a validating agent of the defendant had used insulting or offensive language to her husband when the latter went to that agent for the purpose of having his wife’s ticket made good for passage, she not being present on that occasion.</p>

Equitable petition. Before Judge Fite. Whitfield superior court. April term, 1897. The petition of Telitha A. Beckner against John Beckner, the Supreme Commandery United Order of the Golden Cross, Georgia Commandery, et al., was demurred to by John Beckner. The demurrer was sustained, and plaintiff excepted.

<p>1. In the trial of an action against a railroad company for personal injuries, it is error in the court to charge sections 2322 and 3830 of the Civil Code in immediate connection with each other and without proper explanation. These two sections of the code are separate and distinct, and it is not the purpose of these statutes to qualify one by the other.</p> <p>2. “Due care according to age and capacity is all the law exacts of a child of tender years. Ordinary care, which is that of every prudent man, is not the standard for a child.” Hence it was error to charge the jury, in effect, that if a child had not the capacity to exercise the care of a prudent man, it would not be chargeable with any negligence at all.</p> <p>3. The failure of a railroad company to inclose its tracks, so as to prevent children and others from trespassing upon the right of way, can not be imputed to the company as negligence. It was, therefore, error for the court to charge the jury that such failure “is evidence to be considered by you, along with all the other evidence, in determining whether or not the defendant has been guilty of negligence in this case.”</p> <p>4. Under the facts of the present case, if there was any negligence in the railroad company’s permitting timbers to be placed from its track across a ditch for the purpose of facilitating passage over it, such negligence did not contribute to the injury of the plaintiff. It was, therefore, error for the court to charge that, in arriving at a conclusion- whether or not the defendant was negligent, the jury could consider the removal of such timbers by the company after the time of the injury.</p> <p>5. Other than as above indicated, there was no material error in the rulings of which complaint is made.</p>

<p>Injunction. Before Judge Fite. Bartow county. July 5, 1897. r</p>

<p>1. A deed to land, though not attested as required by law, conveys the title as against the grantor and his heirs.</p> <p>2. It was error to admit in evidence, over objection, a deed which purported to be attested by two witnesses, where no proper foundation for its introduction was laid by calling the witnesses and examining them as to its execution, or accounting for their absence. If such witnesses are introduced and fail to prove the execution of the deed, then aliunde testimony may be offered to show that the deed was actually executed by the grantor.</p> <p>3. Except as set forth in the second headnote above, there was no error in the rulings complained of.</p>

<p>There was no error in striking on demurrer a plea undertaking to set up, as a defense to an action on a promissory note, damages alleged to have been occasioned to the defendant by the plaintiff’s breach of a contract, whereby the defendant lost certain contemplated dividends upon policies of life-insurance, when it does not appear, from the allegations of the plea, that the defendant would have realized such dividends had there been no breach of the plaintiff’s contract.</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. January term, 1897.</p>

<p>Error in admitting parol evidence of the contents of writings, without requiring the proper foundation to be laid for the introduction of such secondary evidence, is not cause for granting a new trial at the instance of the plaintiff, who had voluntarily and without objection himself testified to the contents of these identical writings, and in so doing had shown conclusively that he was not entitled to a recovery.</p>

<p>1. It was, in the trial of an action for damages to personalty against a railroad company, erroneous, after reading section 2322 of the Civil Code, to charge, without qualification or explanation, as follows : “That is what we call contributory negligence. If both parties are at fault, the plaintiff would be entitled to recover, but the jury would have the right to scale his damages.”</p> <p>2. It was also, in such case, erroneous to charge as follows: “ To illustrate : if the fault was about half and half, one party as much at fault as the other — -the jury so thought, you would have the right to give the plaintiff half damages.”</p>

<p>There was no equity in the petition, and the court did not err in sustaining the demurrer thereto.</p>

Complaint on. note. Before Judge Hart. Baldwin superior court. January term, 1897.

<p>Affidavit of illegality. Before Judge Hart. Jones superior court. April term, 1897.</p> <p>An execution in favor of W. A. Juhan, surviving partner, against S. D. Juhan, was levied on land, and defendant filed an affidavit of illegality, because, “Wm. A. Juhan, surviving partner of Juhan & Clower, and in whose name as such survivor said fi. fa. is proceeding, is dead, and that said estate of said Juhan deceased is without representation, and there is no legal representative as administrator, executor or otherwise of the said Wm. A. Juhan as such survivor or of the. estate of P. L. Clower deceased, and consequently no one to whom this deponent could make payment, and that there is no responsible party to settle with, or with whom a settlement of said fi. fa. that would protect this defendant against said fi. fa. or its payment if hereafter demanded by a duly qualified administrator of said deceased, and no person authorized to enforce the collection of said fi. fa.” On the call of the case for trial, counsel for plaintiff in fi. fa. asked that the levy proceed in the name of the heirs at law of the plaintiffs in fi. fa., representing that said plaintiffs, before the date of the levy, had died; and the court granted the application, allowing the heirs at law to be made parties plaintiff, and directing that the fi. fa. and levy proceed in the name of the heirs, naming them. Error is assigned on the ground that the right to control, enforce, and collect a fi. fa. is by law cast upon and invested in the legal representative of the plaintiff, and not upon the heirs at law.</p>

<p>1. A stipulation in a policy of life-insurance, that “this policy is incontestable after three years from its date, provided three full yearly payments have been made upon it, except that error in the age of the insured is open to adjustment” in a manner therein prescribed, is valid; and after payment of the premiums called for, and the lapse of time specified, the insurer is, with the exception indicated, precluded from setting up any defense based upon misrepresentations or warranties made by the insured in his application, whether fraudulent or otherwise.</p> <p>2. If a policy of insurance is capable of being construed in two ways, that interpretation must be placed upon it which is most favorable to the insured.</p> <p>3. A receipt by the insurer of a premium after default in the payment thereof according to the terms of the policy, will generally constitute a waiver of the forfeiture of the policy on account of such default.</p> <p>4. The giving of a note by the insured for a premium and the acceptance of such note by the insurer as payment for the premium is equivalent to cash payment; and default in the payment of such note at maturity will not work a forfeiture of the policy, unless it is so expressly stipulated by the parties at the time such note is given and received.</p> <p>5. Wliei'e a policy of insurance became lapsed by the non-payment of premiums, and the insured obtained a reinstatement by a fraudulent misrepresentation of material facts, then the contract for reinstatement was void and the policy remained lapsed.</p> <p>6. The recitals in an application for reinstatement made by the insured upon a mistaken idea that such application was necessary, when in point of fact it was not, are not binding on him, and any misrepresentations therein made, induced by the statement of the insurer that the policy had lapsed, and that such representations were necessary for his reinstatement, will not constitute a valid defense to a suit on the policy.</p> <p>7. "Whether a given state of admitted or proved facts works a forfeiture or lapse of a policy of insurance is a question of law for the decision of the court; when there is an issue about the facts, the matter should be submitted to the jury under proper instructions.</p> <p>8. The materiality of representations made by the insured in his application, under the laws of Georgia, is a question for the jury to decide. The manner in which this question shall be determined, being a matter affecting the remedy only, and not the “validity, form, or effect of the contract,” is to be controlled by the lex fori, and not by the lex loci contractus.</p> <p>9. The declarations made by the medical examiner in a letter to his insurance company, as to the habits of the applicant, are not binding on the latter, notwithstanding the fact that the application states that the medical examiner is the agent of the applicant in filling up the same and the applicant knows that under certain conditions a letter is to be written to the company by the examiner in relation to the application and the examination.</p> <p>10. A statement in an application for reinstatement of a policy of insurance, rendered necessary by the lapse of tile same, that the insured is in “good health,” is not to be construed asa warranty that his health is absolutely perfect, but only that his health is practically the same as it was when the policy was issued.</p> <p>11. There was no error requiring the grant of anew trial. If any error was committed, it was either favorable to the defendant, or harmless under the facts of the case. The case was fairly submitted to the jury, and there was evidence sufficient to authorize a finding of every issue in favor of the plaintiff, except the one hereafter alluded to. Except as above set out, the questions involved are not of such a character as to require extended discussion.</p> <p>12. There was no evidence to authorize the conclusion that the defense was not made in good faith. The verdict for attorneys’ fees and damages is therefore unauthorized; and direction is given, that the portion of the verdict and judgment relating to attorneys’ fees and five per cent, damages be written off, and that the verdict for the principal and interest due on the policy stand, and that the costs in this court and all costs which have accrued in the court below' since the rendition of the verdict be taxed against the defendant in error.</p>

<p>Injunction. Before Judge Kimsey. Hall county. September 1, 1897.</p>

Equitable petition. Before Judge Candler. Bartow superior court. July term, 1897. R. M. Pattillo brought suit against T. R. Jones. Defendant moved to dismiss the petition, because it stated no cause of action, and showed upon its face that no cause of action existed when the suit was filed. Plaintiff offered two amendments, the first of which was allowed.

<p>A will conveying both, realty and personalty, executed in a foreign State according to its laws and there admitted to probate, may in like manner be admitted to probate in this State upon production of an exemplification of the probate proceedings duly certified, notwithstanding such will may not have been executed in conformity to the laws of this State. Such an instrument, however, is not a good will in so far as it attempts a devise of realty located in this State.</p>

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

<p>Complaint on note. Before Judge Eve. City court of Richmond county. July term, 1897.</p>

Complaint for land. Before Judge Felton. Bibb superior court. April term, 1897.

<p>1. As a genera] rule cotton-factors do not buy and sell on tbeir own account. It therefore follows that the sale of cotton, in the name and on the account of the partnership by a member of a partnership formed for the purpose of carrying on the business of cotton-factorage, is presumptively without the scope of the partnership business. This presumption may, however, he overcome by proof of consent or ratification by the other partner, or by proof of custom authorizing such transaction in the place where the partnership was located.</p> <p>2. Each partner is presumed to know what appears upon the partnership books. It follows, therefore, that where there was entered upon the books of the partnership a transaction which was beyond the scope of the partnership business, after the lapse of a reasonable time each partner will be presumed to know of such transaction, and upon a failure to repudiate the same promptly, upon the lapse of such time will be held to-have ratified the act of the partner who had exceeded his authority. In the present case it appeared from the evidence that the transaction which was beyond the scope of the partnership was entered upon the partnership books. The books themselves not being in evidence, and there being nothing in the evidence to indicate that an examination thereof would not have disclosed the true nature of the transaction, it will be presumed that the entry was made in such a manner that the truth of the transaction would have been apparent.</p> <p>3. The case was fairly submitted to the jury. The evidence authorized the verdict, and there was no error committed which would require the granting of a new trial.</p>

<p>Certiorari. Before Judge Sheffield. Terrell superior court. May term, 1897.</p>

Habeas corpus — certiorari. Before Judge Spence. Worth county. September 20, 1897.

Petition for scire facias. Before Jn dge Smith. Montgomery superior court. April term, 1897. The petition of B. S. Calhoun, for scire facias requiring William Cawley to show cause why a certain land grant to him from the State should not be set aside, was demurred to by the defendant, on the grounds: (1) The State is not, but should be, a party. (2) No cause of action is set forth.

<p>Equitable petition. Before Judge Gamble. Washington superior court. March term, 1897.</p>

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

Equitable petition. Before Judge Felton. Bibb superior court. April 2, 1897. A general demurrer to the petition of Lorena Walker against John M. Brown was sustained, and petitioner excepted.

Complaint. Before Judge Felton. Bibb superior court. April term, 1897.

<p>Exceptions to decree. Before Judge Hutchins. Clarice superior court. April term, 1897.</p> <p>On March 30, 1895, the Athens Savings Bank, the Jellico Coal Co., and others filed an equitable petition against the Athens Gas Light Co., the Lubroline Oil Co., and C. M. Wood-bury, receiver, etc. It was alleged in the petition, and proved at the trial, that the Athens Savings Bank held, as collateral security for its debt, certain bonds of the Gas Light Co., secured by a trust deed or mortgage it had executed to the Mercantile Trust & Deposit Co. of Baltimore, as trustee, and that several series of the interest coupons attached to said bonds were due and unpaid. It was also alleged and proved that the other petitioners were unsecured creditors of the Gas Light Co., whose claims exceeded one third of its unsecured indebtedness, that the claims of all the petitioners were past due and unpaid, that demands for payment had been made and the same refused, and that the Gas Light Co. was insolvent. At the time the petition was filed the Lubroline Oil Co. and C. M. Woodbury, receiver for the Mingo Mountain Coal & Coke Co., held judgments against the Gas Light Co., rendered March 21, 1895, and there were then pending suits against the Gas Light Co., in favor of the J. C. Wilson Coal & Lumber Co., the Washburn & Moen Manufacturing Co., and the General Electric Co., in which suits judgments were obtained against the Gas Light Co. after the filing of the equitable petition. The petition prayed for the appointment of a receiver for the Gas Light Co., and that the Lubroline Oil Co. and C. M. Woodbury, receiver, be enjoined from levying their executions upon the property of the Gas Light Co. A receiver was appointed March 30, 1895, the same day the petition was filed, to take charge of all the assets of the Athens Gas Light Co., and to operate its gas and electric light plants, &c. Subsequently the creditors whose judgments were obtained after the filing of the petition were made parties. On January 17, 1896, the Bank of the University, a holder of bonds secured by the deed of trust, intervened as a party plaintiff, and on October 24, 1896, amended its original intervention and prayed thatits claim be paid out of the funds coming into the hands of the receiver either by sale of the mortgaged property or from income or otherwise. On April 21, 1896, the Mercantile Trust & Deposit Co. intervened as a party plaintiff, and alleged, that it was the trustee for the bondholders, under a deed of trust executed by the Gas Light Co. on October 9, 1890, which was duly accepted and recorded; that under such deed seventy-five bonds of the Gas Light Co. had been issued and were outstanding; that by the terms of the deed it was provided, that, if the Gas Light Co. “shall at any time, after demand made, make default, or refuse, neglect or omit, for any period exceeding two months, to pay the semiannual interest on the bonds intended to be hereby secured, or any of them, .after the same shall have become due,” in such event petitioner may resort to a court of equity and through a receiver administer the trust assumed; that such default had been made, and petitioner had been requested by twenty per cent, in amount of the bondholders to proceed as provided in such deed; and prayed that the trust deed or mortgage be foreclosed and the equity of redemption therein forever barred; that said mortgage be decreed to have and be a first lien on the assets and property of the Gas Light Co., that the funds arising from the same be paid over to petitioner for distribution and expenses as provided in said deed; that a permanent receiver be appointed, and that petitioner have such other and further relief as to the court may seem proper, &c.</p> <p>On May 21, 1896, Frederick Stamwood, another holder of bonds secured by the deed of trust, intervened as a party plaintiff, prayed for judgment on his claim, and that it be decreed to be a first lien on the property of the Gas Light Co. On October 26, 1896, the Mercantile Trust & Deposit Co. filed an amendment, alleging that after filing its intervention it had practically assumed control, as principal plaintiff, of the litigation, in the interest of the bondholders, and if from any cause the court should not decree the fund in the receiver’s hands to be paid over to it as trustee for distribution among the bondholders, that then it be allowed to prove its expenses, costs, etc., incurred in reference to the receivership, and that they be paid before the fund should be distributed. The trust deed or mortgage from the Gas Light Co. to the Mercantile Trust & Deposit-Co. conveyed all of the real estate, buildings, gas and electric plants, etc., and the “tolls, revenues and income” of the Gas Light Co., to secure the payment of the principal or interest of the bonds, or any of them, according to their tenor or effect, stipulating that the Gas Light Co. should possess, operate and use all the property conveyed, but that in the event of a default-by the Gas Light Co. in the payment of the principal or interest due on any of the bonds for more than two months, the Mercantile Trust & Deposit Co., as trustee for the bondholders, should have the right to demand and enter into possession of the property conveyed, and to use and operate the gas and electric plants, and, after paying expenses of such operation, to apply the remaining net income to the payment of the interest and principal of the bonds secured by such deed. It was further-provided that this power of entry should be a cumulative remedy, and should not be held to deprive the Mercantile Trust & Deposit Co. of its right, in its discretion, to resort to a court of equity and through a receiver, whom it should have the right to name, administer the trusts assumed by it. There was a defeasance clause in the deed, to the effect that if payment of the principal and interest of the bonds should be made as provided for, “then and in that case the estate, right, title and interest of the party of the second part [the Mercantile Trust & Deposit Co.] . . shall cease, determine, and become void.”</p> <p>The receiver had in his hands for distribution by the court a certain sum, being the net earnings and income arising from the operation, by him as receiver, of the gas and electric plants of the Gas Light Co. By agreement of all parties, all questions of law and fact, to be considered in connection with the distribution of such fund, were submitted to the court without the intervention of a jury. After hearing the evidence and argument, the judge decreed: “That said mortgage is a valid and subsisting lien upon all of the . . income arising from the operation of the property of the defendant company by the receiver of this court, and is prior to any other lien or claim of any party or parties to this case, except as hereinafter specifically provided for. It is further adjudged and decreed that the . . income arising from the . . operation of the property of the defendant company be applied as follows: [After providing for the payment of costs and certain expenses of the receivership] 5th. To the holders of the bonds secured by the mortgage aforesaid, pro rata. 6th. To the intervening owners and holders of judgments against defendant Gas Light Co., obtained previous to the filing of the original petition and the appointment of the receiver herein, according to and in order of their date and dignity. 7th. To the intervening unsecured creditors and judgment creditors holding and owning judgments obtained since the filing of the original petition herein.” The Lubroline Oil Co., C. M. Woodbury, receiver for the Mingo Mountain Coal & Coke Co., the J. C. Wilson Coal & Lumber Co., the Washburn & Moen Manufacturing Co., the General Electric Co., and the Standard Oil Co. excepted to such decree and made the following assignments of error: 1st. The court erred in holding that the mortgage or trust deed was a lien at all on the income made by the receiver while operating the defendant’s property. 2d. The court erred in holding that the mortgage or trust deed was a lien on the earnings made by the receiver prior to the 21st of April, 1896, the time when the trustee or mortgagee formally intervened. 3d. The court erred in holding that the mortgage or trust deed was a superior lien on the earnings made by the receiver prior to the intervention of said trustee, as to judgments obtained by these plaintiffs in error, some before the receiver was appointed, and all the suits pending at the time of the appointment of the receiver. 4th. The court erred in holding that the judgments of the plaintiffs in error, whose judgments were obtained after the filing of the original bill in this case, but obtained on suits then pending, were not superior in lien to judgments obtained under the bill by unsecured creditors, and were not superior to the lien of the mortgage or trust deed.”</p>

<p>1. In the trial of a suit against a railroad company for damages sustained by the killing of a horse, it is not error to exclude evidence offered by the defendant, to the effect that the witness had seen good mules sold for a sum less than the amount claimed by the plaintiff for his horse, and that such mules had within two or three years been sold for a much larger sum, and that he had also seen other horses and mules sold at the same rate it not appearing at what place the sales occurred; such evidence being offered as original evidence to show the value of the horse in question, and not as reasons of the witness for the opinion given as to the value of the horse.</p> <p>2. In the trial of a case of the character above described, it was error for the judge to charge the jury that, after ascertaining the market value of the horse killed, they should add interest from the “time of the judgment of the court below” to the time of the verdict.</p> <p>3. The verdict in the present case having been returned for a given amount with interest from a certain date, and the evidence being sufficient to authorize the finding, so far as the value of the animal was concerned, and the sum so found being the full amount sued for, direction is given that the part of the verdict and judgment finding interest be written off, and that the costs of this writ of error be taxed against the defendant in error.</p>

Complaint for damages. Before Judge Reid. City court of Atlanta. January term, 1897. Joseph F. Gatins sued Mrs. E. A. Angier in the city court of Atlanta. His petition was as follows: “ The petition of Joseph F. Gatins shows: 1. That Mrs. E. A. Angier is a resident of Fulton County, Georgia. 2. She has damaged him in the sum of $3,025.00, by reason of the following facts, to wit: 3.

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

Equitable petition. Before Judge Fite. Bartow superior court. January term, 1897.

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

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

<p>1. A petition to foreclose a mortgage executed by a trustee, which sets out in full the terms of an order passed by a court of competent jurisdiction authorizing him to create a mortgage upon the trust estate, is good in form as well as in substance, in so far as it relates to the trustee’s power to enter into a contract of this character. The validity of such an order is not affected by the fact that the trustee failed to attach to his application for leave to mortgage a copy of the trust deed or other instrument by which he was appointed. Nor is such an order to be treated as void because it fails to recite who are the beneficiaries of the trust; nor because the record of the proceedings upon which it was based does not affirmatively show that service upon all parties at interest was duly made. Such an order, because granted by a court of general jurisdiction, has all the sanctity which attaches to a formal judgment, and every presumption in favor of its validity is to be indulged. Accordingly, in the present foreclosure proceeding, it was not necessary for the plaintiff to allege or prove that the trustee was regularly and lawfully appointed, and therefore was entitled to apply for and obtain leave to execute the mortgage sought to be foreclosed.</p> <p>(a) The order of court relied on in this case was not void for uncertainty.</p> <p>2. Although such a mortgage may contain stipulations not authorized by the judge’s order, the whole instrument is not for that reason void; and in a proceeding looking to an enforcement of the contract only in so far as it is legal, the notes and mortgage executed by the trustee in pursuance of the power conferred upon him by the order passed are admissible in evidence for the purpose of proving the contract as insisted upon; certainly so in the absence of any objection on the part of the defendant specially calling upon the plaintiff to offer the instruments for a specified purpose, or purposes, as to which, and to which alone, they were relevant.</p> <p>3. In resistance to the foreclosure of a mortgage upon trust property it is competent for the trustee to interpose a plea of usury.</p> <p>4. The trustee is also at liberty to attack the order of court authorizing the creation of the mortgage, on the ground that service of the proceedings upon which such order was based was not, in point of fact, made upon the cestuis que trust, none of whom had either waived service or subsequently ratified his act in executing the mortgage.</p> <p>(a) Upon a review of the case of Rutherford v. Larned, 102 Ga. 50, the decision therein, in so far as it lays down the contrary doctrine, is overruled.</p> <p>5. The trustee is, however, estopped from raising any issue concerning the legality of his appointment.</p> <p>6. If, prior to the filing of the plaintiff’s petition to foreclose the mortgage, the trust became executed, the proceeding should have been instituted against the former cestuis que trust instead of the discharged trustee.</p>

<p>There is no law which confers upon the railroad commission of this State the power to compel a railroad company to make a contract for the shipment of goods beyond the terminus of its own line or to issue a through bill of lading binding such company so to do; nor is the fact that a railroad company actually contracts for the shipment and delivery of goods beyond its own terminus to a designated point and issues bills of lading accordingly, when the same are routed over a particular one of its connecting lines, to he treated as unjustly discriminating against another connecting line because the company first mentioned refuses to issue through bills of lading for the shipment over the latter of goods consigned to the same point of destination.</p>

<p>Petition for direction, etc. Before Judge Felton. Bibb superior court. November term, 1896.</p>

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

<p>1. Though a petition alleged that a written instrument therein set forth was a perfect and complete contract for the sale of goods, and prayed for the recovery of damages for a breach thereof, there was no error in allowing an amendment to such petition, in effect averring that the instrument in question was an offer or proposal to sell to the plaintiffs the goods therein described, and that the same had been accepted in writing by them before its withdrawal.</p> <p>2. The court did not err in overruling the demurrer to the plaintiffs’ petition as amended. Little, J., dissenting.</p>

<p>Where a sheriff, under an execution against administrators, sold realty belonging to the estate of their intestate for more than enough to satisfy the execution, and, with the acquiescence and consent of one of the administrators, permitted the purchaser at the sale to account for the excess by crediting the amount thereof upon a debt due to him by such administrator individually, the sheriff could not thereafter recover this amount in an action at law brought by him against the purchaser for the use of the administrators. Little, J., dissenting.</p>

Petition, for injunction. Before Judge Hutchins. Gwinnett county. September 18, 1897. On March 2, 1897, E. M. Brand brought his petition against the mayor and council of Lawrenceville, and the marshal of the town, to enjoin the collection of an execution against him for taxes in favor of the town, and the collection of any taxes from him for the purpose of paying the principal or interest on certain bonds issued by the town authorities.

<p>The testimony in this case was not sufficient to authorize the conclusion, beyond a reasonable doubt, that the alleged assault was made with a weapon likely to produce death or with an intent to kill. The court therefore erred in not granting the motion for a new trial.</p>

<p>Indictment for assault with intent to murder. Before Judge Henry. Floyd superior court. January term, 1898.</p>

<p>1. Where a witness twelve years old at the time of trial testified to facts occurring two years previously, it was not error in the court to fail to inquire of the witness as to his knowledge of the sanctity and meaning of an oath, no request being made by defendant’s counsel for such a preliminary examination, and no objection being made to the witness testifying.</p> <p>2. In no view of the case, under the facts disclosed by the record, could the accused have been legally found guilty of manslaughter, either voluntary or involuntary; therefore the court did not err in failing to charge on the subject of manslaughter.</p> <p>3. The charge of the court upon the subject of reasonable doubt was sufficiently full and explicit. The jury were the judges of the credibility of the witnesses; and the testimony in the case, if true, demanded the verdict finding the accused guilty of murder.</p>

<p>1. One who upon an indictment for murder has been convicted of voluntary manslaughter and to whom, upon his own motion, a new trial has been granted, may again be tried for murder. The true intent and meaning of par. 8, sec. 1, art. 1 of the constitution, which declares that “No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial,” is that one who, after conviction upon an indictment, voluntarily seeks and obtains a new trial thereon, becomes subject to another trial generally for the offense therein charged.</p> <p>■2. There was no material error in any of the charges or refusals to charge of which complaint is made; the evidence warranted the verdict, and the court, therefore, did not err in refusing a new trial.</p>

<p>Order to enforce sentence. Before Judge Fite. Gordon superior court. February term, 1898.</p>

<p>1. Where in a suit upon a due-bill the defendant failed to file any pleas until the second term after suit was brought, there was no error, upon the call of the case for trial at a subsequent term of the court, in sustaining a motion of plaintiff to strike the pleas on the ground that they were not filed at the first term of the court.</p> <p>2. Where plaintiff relied for recovery upon essential facts set forth in his petition, not appealing on the face of an unconditional contract in writing which formed the basis of his suit, it was proper that a verdict should be rendered by the jury before entering a judgment in the case.</p>

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

<p>Indictment for selling liquor without license. Before Judge Candler. Carroll superior court. October term, 1897.</p>

<p>The testimony in this case being entirely circumstantial, and the facts proved being consistent with the innocence of the defendants, and failing to connect them with the perpetration of the crime charged, the verdict was contrary to evidence; and the court therefore erred in overruling the motion for a new trial.</p>

<p>1. It has not, since the ratification of the present constitution of this State, been within the power of the General Assembly to confer upon a particular and designated municipal court jurisdiction to try and punish persons for acts which are indictable and punishable as misdemeanors under any general law of this State, and in the commission of which there is no 11 ingredient or concomitant” offense peculiarly affecting the peace and good order of the municipality, for which it can separately punish without interfering with the right of the State to deal with the main accusation. Such legislation violates the constitutional paragraph prohibiting special legislation in cases provided for by general laws.</p> <p>■2. It follows that the act of Dec. 20, 1893, reincorporating the Town of Rutledge, is unconstitutional in so far as it under takes to confer upon the municipal authorities of that town jurisdiction to punish offenders for selling without license any liquors the sale of which without license is indictable under the Penal Code of this State.</p>

<p>. Motion, for new trial. Before Judge Berry. Criminal court of Atlanta. March 11, 1898.</p>

<p>1. When one indicted for crime knows at the time of his trial 'that certain persons have knowledge of facts material to the case, but declines to introduce them as witnesses because of a fear that they will not testify truly, he can not afterwards avail himself of their testimony as newly discovered evidence.</p> <p>2. This court will not reverse a judgment denying an extraordinary motion for a new trial, based on newly discovered evidence, although one of the grounds thereof is founded upon the affidavit of a witness whose testimony as therein set forth relates to material and important facts not brought out at the trial, when by way of counter-showing it also appears that this testimony conflicts with that of numerous other witnesses, and that as a whole it is merely cumulative upon one of the main issues vigorously contested at the first hearing.</p> <p>3. A careful examination of the extraordinary motion now under consideration, the same being based exclusively upon alleged newly discovered evidence, and a consideration of all the grounds of this motion in the light of the well-settled rules of law relating to such evidence, lead to the conclusion that the trial judge did not err in overruling the motion.</p>

<p>1. Provisions germane to the general subject-matter embraced in the title of an act, and which are designed to carry into effect the purpose for which it was passed, may be constitutionally enacted therein, thoughnot referred to in the title otherwise than by the use of the words “and for other purposes.”</p> <p>2. It was therefore constitutional to include in a local act passed in 1881, “to prescribe the method of granting license to sell spirituous or intoxicating liquors in the county of Screven, and to increase the fee for said license to ten thousand dollars, and for other purposes, ” a section making it an indictable misdemeanor to sell in the county named any spirituous or intoxicating liquors without having first obtained a license so to do from the proper authorities.</p> <p>3. This case differs from that of Sasser v. State, 99 Ga. 54, in which this court dealt with a similar act relating to the sale of liquors in the county of Bulloch, the title of which, however, did not contain the words “and for other purposes.”</p>

<p>1. A plea in abatement, attacking an indictment on the ground that the oath required by law was. not administered to a named witness upon his examination by the grand jury, was not good without alleging that the indictment was found true solely upon the testimony of this witness.</p> <p>2. If any error in rejecting evidence was committed, it does not appear that the same was sufficiently material to warrant this court in setting aside a verdict approved by the trial judge.</p>

<p>Indictment for assault with intent to rape. Before Judge Janes. Haralson superior court. January term, 1898.</p>

Complaint for land. Before Judge Smith. Dooly superior court. September term, 1897. The suit was by J. M. Fergerson, as sole heir at law of John Fergerson deceased, against Greer.

<p>The plaintiff having shown no title to the timber in controversy, the trial judge erred in granting the temporary injunction.</p>

<p>In a suit for damages resulting from killing live stock, -where the only issue for trial was the value of the stock killed, the last original return of the property for taxes made by the plaintiff, specifying the amount for which the property was given in, was admissible in evidence against the plaintiff as a circumstance for the jury to consider in passing upon the issue submitted.</p>

<p>Action for damages. Before Judge Candler. Putnam superior court. August 30, 1897.</p>

<p>Equitable petition. Before Judge Hart. Laurens superior court. July term, 1897.</p>

<p>Application for guardianship — appeal. Before Judge Gober. Greene superior court. November 29, 1897.</p>

<p>Action for damages. Before Judge Hart. Putnam superior court. September term, 1897.</p>

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

<p>1. The writ of injunction does not lie at the instance of the defendant to a case upon which garnishment proceedings have been based, to restrain the prosecution of such proceedings, when the petition for injunction discloses no reason why such defendant can not fully protect himself in the court where the garnishment case is pending.</p> <p>2. Granting that the petition for injunction in the present case was proceeding, at the interlocutory hearing, against a proper party defendant, and that it is not apparent from the face of the petition that the plaintiff therein has a complete legal remedy against the action which he seeks to enjoin, the evidence, on the merits of the case, was conflicting; so that, in no view of the case, was there any abuse of discretion in denying the injunction.</p>

<p>Ordinarily a sheriff’s sale under an execution not signed by the officer authorized to issue the same is void; but where the execution is based upon the foreclosure of a mortgage on the property sold, and the defendant, who is present at the sale, knows the fact that the execution was not signed and makes no objection to the sale on that account; and where, after the purchase of the property at such sale by the plaintiff in fl. fa., the defendant surrenders possession to the plaintiff, who afterwards conveys the property to an innocent purchaser for value, the defendant is bound by the sale, and can not maintain an action of ejectment for the recovery of the property on account of its sale under void process.</p>

<p>1. There can be no adverse possession against a cotenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession.</p> <p>2. Where one of two cotenants conveys the entire fee to a bona fide purchaser for value, to give the latter a prescriptive title to the premises it is necessary that he should be in actual adverse possession of the land for a period of seven years under the deed that forms the basis of his claim of title.</p>

<p>Appeal. Before Judge Spence. Dougherty superior court. October term, 1897.</p>

Action for damages. Before Judge Smith. Lodge superior court. September term, 1897. The suit was for damages on account of the alleged failure of the railway company to maintain a cattle-guard. To the petition the defendant demurred on the grounds: (1) It sets forth no cause of action. (2) Defendant is under no legal duty to maintain a cattle-guard as claimed.

<p>1. Ordinarily a promise is not implied to pay reasonable value for service rendered in the care of and attention to a very near relative. Where, however, the parties sustain toward each other the relationship of grandparent and an adult grandchild, and the circumstances show that the grandparent does not stand in loco parentis as to the child, and the services performed by the child are not.only in the nature of care and attention bestowed upon an old and infirm grandparent, but are such as to indicate the relation of master and servant, Qr employer and employee, and where the character of service rendered, taken in connection with other surrounding circumstances, indicates that it was the intention of both parties that compensation should be made, and negatives the idea that services were performed merely because of a natural sense of duty or love and affection arising out of the relation of the parties, a foundation for a recovery for such services would be established.</p> <p>2. The evidence in this case, which was a suit by a granddaughter against the estate of her grandfather for services rendered, was sufficient to authorize the jury to infer an implied contract to compensate the plaintiff' for her services; and the court, therefore, erred in granting a nonsuit.</p>

<p>Appeal. Before Judge Smith. Montgomery superior court. October term, 1897.</p>

<p>1. In the trial of a suit for damages for a trespass to realty, it was not error for the court to charge the jury, in effect, that if they found that the plaintiff was entitled to damages, they might, if they saw proper, add thereto interest on the same from the time such damages accrued to the date of their finding and embrace the whole in one amount.</p> <p>2. The verdict was supported by the evidence, and the court did not err in overruling the motion for a new trial.</p>

<p>Action of trespass. Before Judge Sweat. Appling superior court. September term, 1897.</p>

Action for damages. Before Judge Sweat. Clinch, superior court. January 18, 1898. The suit was on account of personal injuries caused by the plaintiff’s being struck on the side of the head by a piece of timber from the tender of a passing locomotive of the defendant while he was standing hear the track of the railway.

<p>Complaint on notes. Before Judge Reese. Baldwin superior court. July term, 1897.</p>

<p>Rule for contempt. Before Judge Butt. Taylor county. June 5, 1897.</p>

Complaint on note. Before Judge Butt. Talbot superior court. March term, 1897. The suit was returnable to the March term, 1896. At that term the appearance-docket was called, and “said case was answered to by the attorney marking his name.”. When the case was called at the March term, 1897, the .defendants presented their plea and asked to be allowed to file it, offered to pay the cost, and announced ready for trial.

<p>Action for damages. Before Judge Butt. Marion superior-court. April term, 1897.</p>

<p>Levy and claim — certiorari. Before Judge Butt. Harris superior court. April term, 1897.</p>

<p>Petition to reform decree. Before Judge. Littlejohn. Macon superior court. November term, 1897.</p>

<p>1. If, pending a motion for a new trial, the movant therein files and brings to this court a hill of exceptions alleging that the judgment complained of in such motion was erroneous because the same did not conform to the verdict, the writ of error thus sued out will be dismissed as premature.</p> <p>2. Persons who, as parties to a motion for a new trial, are interested in sustaining the judgment complained of therein, are essential parties to a bill of exceptions assigning error upon the overruling of such motion; and if such parties are not duly served, the writ of error will be dismissed.</p> <p>3. Where a bill of exceptions designates as defendants in error a named person “et ah,” and service thereof is acknowledged by attorneys at law who sign as counsel for the “deft, in error,” such acknowledgment covers only the person specifically named, and will not be held as an acknowledgment of service for any other person.</p>

<p>Certiorari. Before Judge Butt. Taylor superior court. October term, 1897.</p>

Foreclosure of lien. Before Judge Butt. Montgomery superior court. October term, 1897. This was a suit to foreclose a lien on a sawmill and its products, for timber furnished to the amount of 861,000 feet, of the value of $861. Defendants filed a counter-affidavit upon the ground that the timber furnished was standing timber, and therefore real estate, for the furnishing of which to sawmills the statute does not afford a lien.

<p>Application for mandamus. Before Judge Smith. Irwin county. February 3, 1898.</p> <p>Papworth brought his petition against the mayor of Fitzgerald, for mandamus to require the mayor to issue to him a, license to carry on the business of a retail dealer in vinous, malt, spirituous, and intoxicating liquors in that city; the petition alleging, that on January 7, 1898, he filed his application for that purpose, in compliance with the requirements of an ordinance of the city adopted January 3, 1898, being eligible under the law to carry on such business; that under the ordinance it was the official duty of the mayor to issue the license; and that the mayor refused to do so. The defendant answered, and the case was heard upon the following facts: It is agreed that Papworth is eligible to retail liquors in said city, has deposited the money for his license to sell, and executed the necessary bonds, and that the application for license is in due form, except that the defendant contends that the application describes two places of business, while the plaintiff contends that it is for only one place of business. It is agreed that the place described in the application is situated on two adjoining lots of land owned by two distinct parties; that the houses on said lots are joined together,, and that there is an arch or doorway between the buildings. Papworth controls both lots under a lease, and is running a barroom on the same. The business is carried on as one business, and Papworth keeps only one set of books; all of the clerks work in any part of said business as required by him. He is conducting the business under one U. S. revenue license. The roofs and sides of the houses are joined together.</p>

<p>1. The wanton, wilful, and forcible expulsion of a person from á freight-train in rapid motion, by an employee of a railroad company engaged in its service on such train, from which personal injuries result to the party thus expelled, will give him a right of action against the company, whether he be on such train lawfully or unlawfully.</p> <p>2. In such a suit it is not error to give in charge to the jury section 2321 of the Civil Code.</p> <p>3. Even if there was no evidence tending to show contributory negligence on the part of plaintiff, a charge on this subject could work no harm to the defendant company.</p> <p>4. Where, pending a motion for new trial by the defendant to set aside a verdict for damages consequent upon personal injuries received by the plaintiff, the latter by his counsel voluntarily, and without any suggestion from the court, reduced the verdict by writing off therefrom a certain sum, and the trial judge subsequently overruled the motion, but it does not appear that his refusal of a new trial was influenced by such reduction of the verdict; and where this court can not say that the verdict as originally rendered by the jury was so excessive as to lead the coui;t to suspect bias or prejudice on the part of the jury, the judgment of the court refusing a new trial will not be reversed on account of such voluntary reduction of the verdict.</p> <p>5. The newly discovered evidence set forth in the record being entirely of an impeaching character, the discretion of the trial judge in refusing a new trial on this ground will not be disturbed.</p> <p>6. The charge of the court fairly presented to the jury the law of the case. The evidence was conflicting, and that for the plaintiff being sufficient to sustain the verdict, this court will not interfere with the discretion of the trial judge in overruling the motion for a new trial.</p>

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

<p>The demurrer in this case, being entirely devoid of merit, was properly overruled.</p>

<p>It was the right of a claimant, after the plaintiff in execution had put in. evidence the fi. fa. levied, the same being on its face apparently regular and valid, to introduce testimony for the purpose of showing that this fi. fa. was issued upon a special judgment purporting to have been rendered in a case begun by the levy of an attachment upon land therein described, that there had been no lawful levy of the attachment, and that as a consequence the judgment was void. This testimony if uncontroverted, and the validity of the judgment depended upon that of the levy, would have been pertinent as laying the foundation for a motion to dismiss the levy; or, if disputed, it would have loeen competent as affording a basis for invoking instructions to the jury for their guidance in case they found it true.</p>

<p>Complaint on account — appeal. Before Judge Sheffield. Early superior court. October term, 1897.</p>

Complaint for land. Before Judge Lumpkin. Fulton superior court. September term, 1897. Donaldson died intestate, leaving a widow and minor children to whom the court of ordinary, upon the application of the widow, set apart from the estate of the intestate a year’s support consisting of $800 in money, and household furniture worth probably $200, all of which the widow and the minor children received and used. There were no adult children.

Complaint on notes. Before Judge Reid. City court of Atlanta. September term, 1897. At the return term of the suit brought by Rountree, the defendant filed an answer admitting that the notes were due, but setting up certain partial payments which were not credited on them.

<p>A workman engaged in the same job with others and having direction of it is not a vice-principal of the master, but stands on the footing of a mere fellow-servant.</p>

<p>Injunction. Before Judge Lumpkin. Fulton county. March. 5, 1898.</p>

Complaint on note. Before Judge Gamble. Tattnall superior court. October term, 1897. Thompson was sued upon a promissory note, and at the appearance term filed a plea setting up that the plaintiffs had accepted from the defendant, in full settlement of the note sued on, another note, upon which suit was then pending.

<p>'The equitable rule under which the holder of a junior mortgage is entitled to tender to the holder of a senior mortgage the amount due thereon, and demand an assignment of the same, is not applicable unless the former shows that such an assignment is necessary to his protection ; nor can this rule be invoked by a mortgagee against a judgment creditor of his mortgagor, having equities at least equal to those of the mortgagee, for the purpose of compelling the judgment creditor to assign to the mortgagee an older mortgage executed by their common' debtor, and to which the judgment creditor had acquired title for the express purpose of protecting his junior judgment lien.</p>

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

Action on foreign judgment. Before-Judge Reid. City court of Atlanta. September term, 1897. ' The suit was on a judgment obtained in a court of Tennessee. Defendant pleaded that the judgment was void, because the court was without jurisdiction to render it, that he was not at any time a resident of Tennessee, was not properly served with a copy of process in the suit in which the judgment was rendered, and did not appear and defend the suit.

<p>The grounds of the affidavit of illegality in this case being entirely without merit, the demurrer thereto was properly sustained.</p>

<p>Action for breach of warranty. Before Judge Reid. City-court of Atlanta. November term, 1897.</p>

<p>1. Where one is insured against “personal bodily injuries, effected . . through external, violent, and accidental means,” and there is evidence tending to show that an injury received by the insured resulted from such means, the jury should determine, as a question of fact, whether the injury did result from accidental means. In the present case this issue was, under the charge of the court, fairly submitted to the jury, and there was sufficient evidence to sustain the finding.</p> <p>2. The insurer is not relieved from liability upon such a policy, by a clause therein providing in effect that the insurance should not cover “injuries or death resulting from or caused directly or indirectly, wholly or in part, by disease or bodily infirmity, hernia, . . rupture,” etc., although the injury received may have produced hernia which caused the death of the insured.</p>

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

Appeal. Before Judge Gamble. Bulloch superior court. October term, 1897. Suit upon a promissory note was brought in the county court. The defendant filed no plea and made no defense in that court. There was an appeal to the superior court; and upon the call of the case there, counsel for the defendant offered a sworn plea of failure of consideration.

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

<p>In an indictment for bastardy, under section 642 of the Penal Code, it is necessary to allege that the person accused is-the father of the bastard child. This not being alleged in the indictment in the present case, evidence that the accused was the father of the child was not admissible.</p>

<p>Indictment for selling liquor. Before Judge Hart. Laurens superior court. April 4, 1898.</p>

Certiorari. Before Judge Hart. Laurens superior court. April 8, 1898. The plaintiff in error sold a boy of sixteen years a quart of home-made blackberry wine, and was indicted, tried, and found guilty of selling intoxicating liquor to a minor without authority from his parent or guardian.

<p>A contract was entered into between A. and B., whereby it was stipulated that B. should take out two policies of insurance on his life, one payable to his wife and the other to A., who had no insurable interest in B.’s life ; and that A. should pay all the premiums on both policies until the death of B., and should receive the entire insurance on the policy in which he was the beneficiary, and one half of the insurance collected on the wife’s policy. The two policies were accordingly issued by an insurance company, and the wife of B. in writing ratified the contract between A. and B. Held:</p> <p>1. Such a contract is a wagering contract, contrary to public policy, and is therefore null and void. ■</p> <p>2. In a suit by A. against the wife, or the representative of her estate, to recover one half of the money collected by her on her policy upon the life of her deceased husband, it was not error in the court to direct a verdict for the defendant, when the testimony disclosed such a contract as the basis of the action.</p>

<p>Certiorari. Before Judge Smith. Irwin superior court. February 24, 1898.</p>

<p>1. The indictments sufficiently charged the offehse of buying a vote.</p> <p>2. The evidence warranted the verdict, and there was no error in refusing a new trial.</p>

<p>Indictment for selling-vote. Before Judge Willis. City court of Columbus. April term, 1898.</p>

Indictment for murder. Before Judge Reese. Elbert superior court. March term, 1898. On the trial of Ed. Teasley for murder, Joe McDuffie testified: On February 28, 1898, Dave Harris, Peter Blackwell and I started together to take a ride, and rode to Ed. Teasley’s. In the afternoon Dave and Ed. shot crap from 3 until 10 o’clock at night. Dave got most of the money; they had some trouble over the game. At the time of the killing Dave and Ed. had a fuss in the house.

<p>Certiorari. Before Judge Smith. Irwin county. May 13, 1898.</p>

Certiorari. Before Judge Hart. Jasper superior court. March, term, 1898. ' The special presentment charged, that on September 5,1897, Richard I. Minter, “by cursing and using profane and obscene language, and by being intoxicated, and by fighting, and by loud talking, and by then and there otherwise indecently acting, did interrupt and disturb a congregation of persons then and there lawfully assembled for divine service at Concord church, a primitive Baptist church.”…

Indictment for larceny from the house. Before Judge Butt. Muscogee superior court. May 9, 1898. Anna Hunley was indicted for stealing a ham, and was found guilty. Her motion for a new trial was overruled, and she excepted. The motion alleges, in addition to the general grounds, that the court erred: 1.

<p>Persons engaged on their own account in a “commercial street brokerage business,” in the course of which they take orders for goods to be filled by non-resident dealers, the brokers, unle’ss otherwise directed, placing these orders at their own option with any of their “correspondents,” and reselling any goods rejected after their arrival in this State, are not, by virtue of the “interstate commerce clause” of the Federal constitution, exempt from a municipal tax imposed upon commercial street brokers by the authorities of the city in which they do business.</p>

<p>Indictment for burglary. Before Judge Sweat. Ware superior court. April term, 1898.</p> <p>The indictment charged C. H. Bartrain and John Davidson with burglary-by breaking and entering a designated storehouse with intent to steal goods therefrom. Bartrain pleaded .guilty. Davidson was tried and found guilty. A new trial was denied, and he excepted. The main evidence against him was, that he kept company with Bartrain, and when arrested was carrying a bag containing some of the stolen property and some burglar’s tools. In his statement he denied having participated in the burglary, and Bartrain testified to the same effect. In rebuttal there was testimony that after the commitment trial Bartrain called for and voluntarily stated to a witness that he had come'to Waresboro, where he found Davidson and asked him if he knew where he could crack a safe; that Davidson asked how much he would give him if he carried him to one, and he said twenty or twenty-five per cent.; that Davidson carried him to the storehouse which was broken, and that he and Davidson went into the same and took fifteen or twenty dollars worth of goods. The grounds of the motion for new trial appear in the opinion.</p>

<p>1. A pauper affidavit can not be filed in the Supreme Court; nor will this court, after a record from a lower court has been completed and the transcript thereof sent here, receive or consider original certificates purporting to have been signed by officials in another State, the purpose of which is to show the official character of the person by whom a paper filed as such an affidavit in the court below was attested.</p> <p>2. A servant of a railroad company, though he may be, in a general sense, under the duty of obeying the orders of a conductor, is not bound to obey an order when so doing will manifestly subject him to peril. A general order from a conductor to a flagman to “catch” a car will not justify the latter in attempting to do so at a time when the car is moving at an obviously dangerous rate of speed; especially is this so when the conductor, when giving the order, was not aware of the speed at which the car would be running when the flagman was expected to “catch” it, and was not present when the latter attempted to do so</p> <p>3. The trial court was right in granting a nonsuit.</p>

<p>1. It appearing that the claim for damages set up by the plea of recoupment in this case did not grow out of any breach of the contract sued upon, there was no error in sustaining the demurrer thereto.</p> <p>2. The allegations in the defendant’s pleas were sufficient to admit testimony tending to establish the parol contract set forth in the pleas, and therefore the court erred in excluding such testimony.</p> <p>3. There being some evidence in the case tending to establish the defenses set up by the defendant’s pleas, the court erred in directing a verdict for the plaintiff.</p>

<p>1. An agent of a fire-insurance company, authorized to contract for insurance in its behalf, can not, without the company’s consent, become in his individual character the agent of a property-owner who desires to obtain insurance in that company. This is so for the reason that an agreement to act as agent for both of the parties would be an undertaking to perform inconsistent duties, and a mutual agency of this kind requires the consent of both parties.</p> <p>2. A fortiori, a person who is such an agent of a particular insurance company can not be made individually liable to a property-owner for damages arising from the breach of a contract, either general or special, to which the company itself is not a party, and which is made “as agent” by the person -first referred to, whereby he undertakes to keep the property of the other covered by insurance in that company, or to renew, upon the expiration thereof, a particular policy already in existence, the party seeking the insurance undertaking on his part to pay the premiums whenever bills for the same are presented.</p>

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

Action on contract. Before Judge Reid. City court of Atlanta. November term, 1897.

Action of deceit. Before Judge Reid. City court of Atlanta. November term, 1897. The plaintiffs alleged, that the defendant had induced them to purchase a certain tract of land, by representations upon which the plaintiffs relied, but which they subsequently discovered to be false.

Equitable petition. Before Judge Lumpkin. Fulton superior court. September term, 1897.

<p>Action for damages. Before Judge Berry. City court of Atlanta. November term, 1897.</p> <p>This suit was on account of personal injuries which the plaintiff alleged were sustained by him in consequence of the negligence of the defendant’s agents, under the following circumstances: He was in a buggy, driving along a certain street upon which were double tracks of the defendant, and the driveway on each side of the tracks being crowded with vehicles, in order to pass he drove between the double tracks, and seeing a car of the defendant coming towards him on the west or incoming track, he drove the buggy upon the east or outgoing track, and an outgoing car then struck the buggy from behind, causing the injuries complained of. He alleged that the defendant’s agents in charge of the car that struck him were negligent, in not giving any signal of the approach of the car, and in running it at a high rate of speed, and not having it under such control that it could be promptly stopped. The verdict was for the defendant. A motion for a new trial was overruled, and plaintiff excepted. The motion alleged, in addition to the general grounds, that the court erred: (1) In directing the stenographer, at the request of the jury, to read from his notes the testimony of the witnesses as to the rate of speed at which the car was running. (2) In charging: “ If you believe the plaintiff was injured and that the defendant was negligent and the plaintiff was also negligent, but that the plaintiff was not so negligent as the defendant, and could not by the exercise of ordinary care on his part have avoided the consequences of the defendant’s negligence, then the plaintiff could still recover, but his recovery should be reduced in proportion to the extent which his own negligence contributed to the injury.”</p>

Action for damages. Before Judge Reid. City court of Atlanta. November term, 1897. This suit was on account of injuries which the tenant alleged were sustained by her in consequence of the condition of the landlord’s premises.

<p>Action for damages. Before Judge Reid. City court of Atlanta. January term, 1898.</p>

<p>1. A building and loan association, as such organizations usually exist today, is a private corporation designed for the purpose of accumulating into its treasury, by means of the gradual payment by its members of their stock subscriptions in periodical instalments, a fund to be invested from time to time in advances made to such shareholders on their stock as may apply for this privilege on approved security; the borrowing members paying interest and a premium for this preference in securing an advancement over other members, and continuing to pay the regular instalments on their stock in addition; all of which funds, together with payments made by the non-borrowing members, including fines, forfeitures, and other like revenues, go into the common fund until it, with the profits thereon, aggregates the face value of all the shares in the association, the legal effect of which is to extinguish the liability incurred for the loans and advancements, and to distribute to each non-borrowing member the par value of his stock.</p> <p>2. The fact that the charter incorporating such a company gives it power to enter into other business not strictly within the usual scheme of such association, does not destroy the building and loan character of the association, where there has been no attempt on its part to exercise any of such powers.</p> <p>S. A member of such association who has been advanced money on his shares may undertake, in addition to paying the legal rate of interest on such money, to pay dues and premiums for such advancement on his stock; and also fines, in the event of a failure to comply with his obligation. When such dues and premiums, paid for the privilege granted the advanced member, go into the common fund of the association, and are so applied as to aid in the maturity of the stock upon which the advancement was made, they do not constitute interest upon the money advanced, and such a contract is not, therefore, usurious.</p> <p>4. The provision of the act approved October 19, 1891 (Acts 1899-1891, p. 176), as embodied in section 2401 of the Civil Code, is in effect simply declaratory of what was law before the passage of that act; and the act so con- . strued is not violative of that paragraph of the constitution of this State which declares that “no special law shall be enacted in any case for which provision has been made by an existing general law.”</p> <p>5. Where sudh an association issues what is known as “ coupon stock,” which bears interest at six per cent, per annum, payable semi annually, and upon which the holder of such stock pays to the association its full face value, with the privilege, after 90 days notice, of receiving back the money thus paid for the stock, and with a like privilege on the part of the association of calling in the stock and refunding the money paid therefor, it is simply a borrowing of money by the association. Such association has power to borrow money to further the ends of its incorporation, unless prohibited from so doing by its charter.</p> <p>6. This court can not consider an assignment of error based upon a refusal to allow a witness to answer a given question propounded during his examination, when it does not appear from the record in the case what was the testimony sought to be elicited by such question.</p> <p>7. The fact that the jury found for the plaintiff a verdict for an amount less than what was authorized by the testimony can afford no cause of complaint to the defendant.</p> <p>8. Whether the particular transaction under investigation is within the general scope of a building and loan association plan, or is a plan devised by schemers to make money for themselves under the form of building and loan contracts with the view of evading the usury laws of the State, is a question of fact for the jury.</p> <p>9. The issues upon the plea of usury were fairly submitted to the jury under the charge of the court; and there was ample evidence to sustain the verdict in favor of the plaintiff. The court, therefore, did not err in overruling the motion for a new trial.</p>

<p>1. If a railroad company of this State refuses to comply with an order passed by the railroad commissioners, requiring it to erect a depot building in a given town or city through which the line of its road passes, such refusal, in contemplation of law, is at the company’s principal office, or place of business; and consequently the superior court of the county in which that office is located, and it alone, has jurisdiction of an action by the State against the company for the recovery of the penalty incurred by the company in refusing to yield obedience to such order.</p> <p>2. The intention of the act of December 16,1895, adopting the present Code, and making the same of force, as the Code of Georgia, is to enact into one statute all the provisions embraced in that Code.</p> <p>3. This act is not unconstitutional because the various sections of the Code were not incorporated therein; nor because these sections were not read three times and on three separate days in each house of the General Assembly before the passage of the act.</p> <p>4. The act in question does not, within the meaning of article 3, section 7 and paragraph 8, of the constitution of Georgia, refer to more than one-subject-matter, nor does it contain matter different from what is expressed in the title thereof.</p> <p>5. The effect of this act is'to make a part of the law of the State all new matter embodied in the Code of 1895 which could be constitutionally enacted by the legislature. It follows, therefore, that an act, though unconstitutional as originally passed, on account of containing matter different from what was expressed in its title, if otherwise constitutional, became valid law by its incorporation in the present Code, upon the passage of the act first above mentioned.</p>

<p>If, in preparing a bill of exceptions whereby it is sought to have this court review a judgment denying an injunction, no regard whatever is paid to the law prescribing how, in such cases, the evidence shall be brought up, and there is no question in the case which can be properly considered without reference to the evidence, the writ of error will be dismissed.</p>

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

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