Volume 105 — Georgia Reports

<p>T. All questions relating to the title relied on by the plaintiff in this case are settled by the decision of this court in the case of Fleming y. Hughes, 99 O-a. 444.</p> <p>2. The interest in the land which is acquired by a railroad company, in a proceeding to condemn under the exercise of the power of eminent domain, is whatever interest the person against whom the proceeding is had has in the land, and no more.</p> <p>:3. An intervenor in an equity suit, praying for relief both legal and equitable, is bound to give effect to all of the equitable rights in the subject-matter of the controversy which the defendant in the intervention may lawfully set up against him. One who avails himself of a remedy in a court of equity is as much bound by the maxim, that he who asks equity must do equity, as one who is asserting in such court a pure equitjr right.</p> <p>■4. Where a railroad company lawfully enters upon property under a conveyance of a life-tenant, and makes thereon improvements of a character necessary for its business, it has the right, if it intends to abandon the premises at the expiration of the life-estate, to remove - such improvements from the property. When it-continues in possession after the termination of the life-estate, and the property, is indispensable to the discharge by it of its public duties, the value of the improvements placed thereon at its own expense, for its own peculiar use, should not, at'the instance'.of a remainderman setting up equities and seeking their enforcement in an equitable proceeding, be considered in ascertaining the damages to be paid to the latter for his estate in the premises.</p> <p>5. Under the rulings above made, the only question to be determined in a subsequent trial of the case will be, what compensation shall be-paid to the plaintiffs for the interest of the remaindermen in the-property. Direction is therefore given, that this single issue be submitted to a jury; and, when the amount is thus ascertained, that-a decree be entered authorizing the defendant, within a reasonable time to be fixed in the decree, to pay to the plaintiffs the amount of' the verdict; and that upon payment of the same the interest of the plaintiffs pass to the railway company. Upon a failure of the railway company to pay the amount of the verdict within the time fixed in the decree, their right to purchase the property should be decreed to have been lost, and a writ of possession should issue authorizing; the sheriff to place the plaintiffs- in possession under the judgment-in ejectment already rendered in the case.</p>

<p>1. An answer to a general and final interrogatory propounded to a witness may be excluded when such answer contains material and important testimony of the nature of which the opposite party was not reasonably put upon notice either by the question embraced in that particular interrogatory or by the same when taken in connection with preceding interrogatories.</p> <p>.2. One who by mere delivery acquires title to a promissory note payable to a deceased person, or bearer, from another who in like manner acquired title to the note from the payee while in life, is not, within the meaning of par. 1 of §5269 of the Civil Code, an “indorsee,” “assignee,” or “transferee” of the deceased payee; and consequently the maker of the note, when sued thereon by the last holder, is not incompetent to testify in his own favor as to transactions or communications with such deceased.</p> <p>■S. There was no error in excluding from evidence a deed of. assignment, the parties to which were strangers to the action on trial; nor in allowing the defendant to prove the correctness of the account with which the answer alleged the note sued upon had been settled.</p>

Foreclosure of mortgage. Before Judge Gober; Burke superior court. October term, 1897.

<p>It was, in the trial of an action upon a contract of subscription for ’ certain books, signed at the solicitation of an agent of the plaintiff ’ and stipulating that “no other conditions or representations than those herewith printed will be binding upon the subscriber or publisher,” erroneous to admit parol evidence of representations made by the agent as to matters not mentioned in the contract as executed.</p>

<p>1. There was no merit in the motion to dismiss the writ of error.</p> <p>2. A married woman can not be made liable for the breach of a warranty of title contained in a deed executed jointly by her husband and herself, describing and undertaking to convey as one tract two separate and distinct parcels of land, one of which belonged to her and the other to him, when these facts were known to the grantee at the time he took the deed, and when it appears that the breach of warranty occurred by reason of the fact that he was compelled to pay off a mortgage given by the husband upon his parcel of the land before the execution of the joint conveyance.</p> <p>3. Irrespective of other questions presented by the record, the verdict in the present case was, upon the undisputed facts thereof, contrary to law.</p>

Before Judgé Gober. Cobb superior court. April 2, 1898. The only evidence introduced at the hearing was the testimony of the plaintiff, and that of her attorney.

Petition for injunction. Before Judge Butt. Muscogee county.

<p>A petition against a railroad company for damages, in which, it is alleged that the plaintiff, a boy of ten years of age, was injured while attempting to get upon the ladder of a moving freight-car, it not alleging, however, that this attempt was known to any of the' employees in charge thereof, sets forth no cause of action. The foregoing is true notwithstanding the fact that upon previous occasions he had been in the habit of climbing upon, and riding on, the moving trains of the defendant with the knowledge and permission of its agents and employees.</p>

<p>Where depositions are sought under the provisions of section 5315 et seq. of the Civil Code, the judge of the court in which the case is-pending has no jurisdiction to entertain a petition for attachment against the witness for not appearing or for refusing to testify before the commissioner appointed under the provisions of the law to-take such testimony. The power to compel the witness to attend and to testify in such cases is vested by the statute in the commissioner.</p>

<p>'Application for year’s support — appeal. Before Judge Gc« ber. Burke superior court. October term, 1897.</p>

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

<p>1. Legislation which does not impair vested rights, but is purely . remedial in its operation on pre-existing rights and liabilities, is not within the inhibition of the constitution which forbids the passage-of retroactive laws. It follows from this principle, that where a. city passed an ordinance under legislative authority directing the pavement of a street and an assessment of two thirds of the cost thereof against abutting landowners, and in pursuance of this ordinance the street was thus improved, but the ordinance was defective on account of an illegal apportionment of the assessment among the several abutting parcels of real estate, it was competent for the city to so amend, its ordinance, after the completion of the work upon the street, as to conform to the statute in its provisions touching a legal apportionment of the assessment.</p> <p>2. The fact that some of the property-owners under the original ordinance paid less than that required by the last assessment constitutes no valid defense to those property-owners who are required to pay according to the apportionment fixed in the amended ordinance j especially where the validity of the original ordinance was at= tacked by such property-owners, and, as the result of such litiga* tion, the first apportionment was declared to be illegal, and a new apportionment required.</p> <p>3. The fact that some of the improvements -made- upon the street arct. incidentally beneficial to other streets in the city furnishes no reason for an abatement or a reduction of the assessment against persons owning property abutting on the street upon which the work was done.</p> <p>4. Where execution is lawfully issued by a city to collect of a property-owner an assessment against him for such improvements, it is entitled to interest on the amount due, at least from the date of such execution.</p> <p>5. Questions touching the necessity for improvements placed upon a street, and the nature and terms of the contract entered into by thp city with contractors who undertake the work, are in the sound discretion of the municipal authorities, and their action will not be controlled by the courts, unless such discretion is manifestly abused..</p> <p>6. Applying the above principles of law, and others heretofore decided' by this court in the present case, to the facts disclosed in the record, the verdict of the jury was demanded by the evidence, and there was-no error in overruling the motion for a new trial.</p>

'. Application -for .partition. Before Judge Eelton. Bibb superior court. April term, 1897.

<p>1. Where one brings an action against a railway company for injuries he sustained growing out of the defective construction of a platform upon which he was engaged at work as an employee and servant of the company, such a suit can not be converted into an action against the railway company as owner of the premises where plaintiff was ; hurt and as landlord of the plaintiff’s employer.</p> <p>2. The amendment not being allowable, and the verdict being predicated upon the amendment, the court erred in refusing to grant a new trial.</p>

<p>Complaint. Before Judge Boss. City court of Macon. September term, ,1897.</p>

Action for damages. Before Judge Cobb. City court of Athens. August term, 1897. Plaintiff caused 18 mules and 10 horses to be shipped from Atlanta to Athens in January, 1897, over defendant’s railroad by a night train, under a-contract of shipment in which it is stated that live stock in car-lots will not be taken at the special rates given but will be charged first-class rates, unless the shipper and agent execute the following contract.

<p>1. Applying the test laid down in White v. Hoplcins, 80 Ga. 154, and following the reasoning which this court employed in that case and those there cited, and to which it has adhered in Owen v. Smith, 91 Ga. 564, and Goff v. Davenport, 96 Ga. 423, the instrument'before the court in the present case is a deed and passed to the grantee therein named the legal title in presentí, with the right of possession and enjoyment postponed to the death of the grantor.</p> <p>2. The evidence warranted the verdict, and there was no abuse of discretion in denying a new trial.</p>

Certiorari.. Before Judge Kimsey. White superior court.. October term, 1897.

Complaint for land. Before Judge Candler. Gordon superior court. August term, 1897.

Action for damages. Before Judge Fite. Whitfield superior court. October term, 1897.

<p>1. When a promissory note contains an agreement to pay “all costs of collection, including ten per cent, attorney’s fees,” the attorney’s fees so provided for amount to ten per cent; on the principal and interest of the note.</p> <p>■2. ft follows from the foregoing, that a suit on a note for the sum of ninety dollars principal, which contains a stipulation of the character above mentioned, is not within the jurisdiction of the justice’s court, when the principal and attorney’s fees claimed in the summons 'exceed the sum 'of One hundred dollar's.</p>

Petition for injunction, etc.- Before Judge Harris. Heard county. February Y, 1898.

<p>Action on foreign judgment. Before Judge Reid. City court of Atlanta. November term, 1897.</p>

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

<p>Complaint for damages. Before Judge Lumpkin. Eulton superior court. September term, 189L</p>

<p>. Application for possession. Before Judge Lumpkin. Fulton superior court. September term, 1897. ■</p>

<p>Action for damages. Before • Judge Eve. City court, of Richmond county. January term, 1898.</p>

<p>A person summoned as garnishee in a justice’s court must answer at the term to which the summons is returnable, provided the term • is more than ten days from day of service; and upon failure so to answer, judgment may be rendered against him at the first term for the amount for which judgment may have been obtained agáinst the principal debtor.</p> <p>2. That the justice who rendered the judgment was related within the fourth degree of consanguinity or affinity to one of the parties to the case was no ground of illegality.</p>

<p>Action of deceit. Before Judge Boss. City court of Macon. ^September term, 1897.</p>

<p>Action, on insurance policy. Before Judge Ross. City court of Macon. September term, 1897.</p>

Complaint on. account. Before Judge Felton. Bibb superior court. November term, 1897. Wolff & IJapp sued Mrs. Hawes upon an open account. The defendant set up that the debt was her husband’s, and not hers. It áppeared that the account was for goods sold and delivered 'upon orders of the defendant, at a store of which she was in .charge. The bills sent with the goods were made out against H. B. Hawes, defendant’s husband.

Action for malicious prosecution. .Before Judge Boss, City court-of Macon. March term, 1897. The plaintiff was prosecuted by the defendant for being a common cheat and swindler, and upon acquittal brought this suit for malicious prosecution. The defendant by his plea admitted that he instituted and carried on the prosecution, alleging that he had probable cause for so doing, and denying that he was actuated by any malice.

Levy and claim. Before Judge Eelton. Bibb superior •court. November term, 1897. An execution from a judgment rendered Jan. 31, 1896, was levied on realty as the property of the defendant, Nancy M. Burgay, and a claim was interposed.

Attachment. Before Judge Felton. Houston superior court. October term, 1897.

Bail-trover — appeal. Before Judge Reese. Glascock superior court. August term, 1897. Suit was brought in a justice’s court to recover “75 cords of pine wood of the value of $75.” On appeal to the superior court, defendant moved to dismiss the case for want of sufficient description of the wood sued for.

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

<p>A judgment of an ordinary upon a habeas corpus proceeding instituted by a father against his own parents to obtain the custody of his minor child will not, after its affirmance by the superior court, be disturbed, the evidence being conflicting as to whether or not the father relinquished his parental right in favor of the grandparents, and it not appearing that he was in any respect an unfit or improper person to have the custody and control of the child.</p>

<p>Attachment. Before Judge Kimsey. White superior court. •October term, 1897.</p>

<p>Equitable petition. Before Judge Gober. Fannin superior court. October term, 1897.</p>

Levy and claim. Before Judge Eite. Whitfield superior court. October term, 1897. On April 26, 1890, Frances T. Hancock made a security-deed to Pegram, which contained a covenant that the maker was lawfully seized of the property conveyed, had a good right to convey it, and that it was unencumbered. Pegram brought suit upon a note to secure which the deed was given, praying for judgment on the debt and a special lien on the land.

<p>Indictment for arson. Before Judge Smith. Twiggs superior court. April term, 1898.</p>

Levy and claim. Before Judge Hart. Morgan superior ■court. January 19, 1898. • Heyser executed to Baccus a mortgage on land, dated March 18, 1884, and recorded two days later. The land was conveyed by Heyser to Houk by deed dated December 15, 1886, and recorded December 16, 1886. Houk died intestate in 1890, in possession of the land, and it was set apart by the court of ordinary to his widow (the claimant) as a year’s support.

<p>The allegations in the petition and the amendments were sufficient to-make out a case of fraud authorizing the rescission of the contract and the cancelation of the deed and mortgage upon plaintiff’s property; and the court therefore erred in sustaining the demurrer to the petition as amended.</p>

<p>-This being an action by a mother for the homicide of her son; the declaration alleging that the deceased was an employee of the defendant railroad company and was engaged as a ear-sealer in its yard, and that his death was brought about by being crushed between two cars where an opening had been left in the train of cars for the use of the employees in the yard, such opening being closed up by a sudden movement of the train without notice to-deceased; and the evidence showing that the deceased was injured while attempting to go through an opening which was not left for the use of the employees of the yard, and was only such an opening as was usual and necessary from time to time in shifting cars in the . yard, there was no error in granting a nonsuit.</p>

<p>Under the facts appearing in the present record there was no error in granting the injunction.</p>

<p>1. While what purports to be a consent verdict and decree may fail to operate as a judgment binding upon the parties, on account of want of jurisdiction in the court or other valid reason, still, if the terms of the same were, upon sufficient consideration, agreed to by the parties with a full knowledge of its contents, or if it was carried into effect and a fund thus arising was distributed among the parties, who received their shares being cognizant of all the facts, the same might be pleaded in bar of the rights of the parties assenting to or ratifying the agreement contained therein.</p> <p>(a) Whether on appeal in the superior court from the judgment of the court of ordinary, on an issue of devisavit vel non, the pleadings can be amended and a decree rendered declaring an intestacy and providing for a complete administration of the estate, is a question not made in the present record. What purported to be a verdict and decree, which was the subject-matter of defendant's plea in the present case, was not set up as a judgment conclusive upon the parties but only as an agreement which had been assented to by them.</p> <p>2. A written instrument, although not signed, will, if orally assented to by the parties, constitute the agreement. Such instrument, however, will not be admissible in evidence until it is shown prima facie that the terms were assented to. It therefore follows that a writing purporting to be a verdict and decree, pleaded only as an agreement between the parties, which was signed by no one other than a person signing as foreman of a jury and another signing as presiding judge, was not admissible in evidence until it was shown prima facie that the parties sought to be bound thereby assented to its terms.</p> <p>3. In a suit by legatees against the executor of a will for an accounting and payment of their legacies, where what purports to be a verdict ¡and decree, declaring an intestacy and providing for an administra.tion of the estate and the payment of a lai’ge amount to the executor as a claim superior to the claims of plaintiffs, is pleaded as an agreement by which the plaintiffs had surrendered their claims as Regatees, and the claim of the executor in such paper is attacked as fraudulent, evidence showing that the executor was appointed trustee of the testator during his lifetime, and that his claim, which is recognized in the agreement as a claim superior to the claims of plaintiffs, grew out of services claimed to have been rendered as quch trustee, and that- extra compensation has been allowed by the ordinary for services of like character, and that no part of such claim has ever been paid, is admissible as circumstances tending to throw light upon the bona fides of the executor, and this, too, ilthough the appointment as trustee and the order allowing extra iompensation may have been void.</p> <p>4. In such a suit, evidence that some of the heirs at law of the testa- . tor did not assent to the agreement pleaded by the defendant in bar of the suit was admissible as bearing on the question of fraud;'</p> <p>5. In the trial of a case of the character above referred to, it was error ■ to charge the law relating to the authority of attorneys at law to bind their clients in cases represented by them pending in a court of competent jurisdiction.</p> <p>6. It was error, after charging as follows: “Neither an attorney nor other agent can represent two persons having conflicting interests, and an agreement made by a person having such double interest is not binding,” to add: “This is not true with this issue in question; that is, where one acts in a representative capacity and the other in an individual capacity. This is not applicable where one acts for both parties in a representative capacity.”</p> <p>7. The judge having charged the jury the general principles in reference to fraud, if additional instructions on the subject would have been pertinent or appropriate, they should have been specially requested.</p>

<p>Complaint. Before Judge Hutchins.. Clarke superior court. October term, 1897.</p>

<p>1. Jurors in passing upon the testimony of an expert witness, as to the value of professional services, are not absolutely bound by his opinion, but may exercise their own judgment on the subject, taking into consideration the nature ol the services, the time required to perform them, and all the attending circumstances.</p> <p>2. Accordingly, where an attorney at law was the only witness as to the value of certain services rendered by himself, and testified that they were, in his opinion, worth a stated amount, the jury, had the matter been submitted to them, would not have been constrained to accept this opinion as absolutely correct, but might have found that the services in question were of a different value. This being so, it was error for the court to direct a finding to the effect that these services were worth the amount stated by the witness.</p>

<p>Complaint for land. Before Judge Candler. Gordon superior court. August term, 18 97.</p>

<p>1. The petition as amended, when fairly construed, contains two counts as grounds for the cancelation of the note held by the defendant against the plaintiff; one upon the ground of fraud in its procurement, and the other upon the ground of forgery, or a fraudulent alteration of the note. The amendment set forth with sufficient certainty and definiteness the allegations of fraud and forgery relied on by the plaintiff, and there was no error in overruling the special demurrer filed by the defendant.</p> <p>2. In an equitable petition brought against a defendant to cancel a-note held by him against the plaintiff, upon the ground of fraud in its procurement, and the further ground of a material and fraudulent alteration of it by the defendant, the burden of proof is upon the plaintiff to establish the allegations in the petition; but where the defendant assumes the burden of proof, and claims and is allowed the privilege of opening and concluding the argument, he can not complain of error in the charge of the court to the effect that the burden was on him of establishing by a preponderance of the evidence his answer denying the allegations of plaintiff’s petition.</p> <p>3. There was no evidence to sustain the allegation of fraud in the procurement of the note by any representation or device on the part of the defendant which led the plaintiff to believe that the note was for a smaller amount than the sum actually stated therein. It was, therefore, error for the court, in its charge to the jury, to, submit this issue to them.</p> <p>4. The pleadings presenting the issue as to whether or not the note in question had been altered by the defendant in the particular of changing its date, and the date of a credit entered thereon, so as to avoid the bar by the statute of limitations, and there being no pretense, either from the pleadings or testimony, that such alteration, if made, was with the consent of the maker of the note, it was not ■ error in the court to refuse to charge the jury either on the subject of the maker’s consent, or on the materiality of the alteration.</p> <p>5. Where one party relies mainly, if not entirely, upon circumstantial evidence to establish a fact, and his adversary upon positive testimony to show the contrary, it is error for the court, especially in a close case on the facts, to charge the jury as follows: “I charge you that circumstantial evidence is just as reliable, just as much to be depended upon, and just as good as positive and direct evidence, when properly linked and connected together.” The weight to be given circumstantial evidence on the one side and positive testimony on the other is a question entirely for the jury.</p> <p>6. As the record fails to show that the answer of the defendant to the . amended petition was made under oath, it does not appear there was error in the court charging the jury that they could not consider such answer as evidence, although the original petition did not waive discovery.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. October term, 1891.</p>

<p>Action for damages. Before II. S. Anderson, judge pro hac vice. City court of Cartersville. December term, 1897.</p>

<p>Where a claim case was tried before a justice of the peace, and from the judgment rendered by him in favor of the plaintiff in fi. fa. the claimant appealed to the superior court, it was error for the court, upon the call of the case for trial on the appeal, to dismiss the appeal upon the ground of appellant’s absence, and a failure of the magistrate to approve the appeal bond. The court should, therefore, have sustained the motion to reinstate the case made by claimant during the term of the court at which the appeal was dismissed, it appearing that the appeal bond was filed with the magistrate in time, and by him transmitted with the papers Lto the superior court.</p>

<p>"Where in a prosecution for murder it was the theory of the State that the accused wilfully and maliciously shot and killed the deceased, or, if that be not true, that the accused so recklessly and negligently fired his pistol as made the shooting of the deceased,, from which his death resulted, the natural result of such firing; and where it was contended by the defendant that the shooting occurred between midnight and break of day on a very dark night; that-being attracted by a noise he went to the end of the house and discovered• an object in his yard, which he hailed, and receiving’ no response, and believing it to be a predatory animal, fired at it and killed the deceased, Held:</p> <p>1. That the declarations made by the deceased as to the cause of his death and the person who killed him were admissible if at the time of making them the deceased was in extremis and conscious of his ■ condition.</p> <p>2. That the law of voluntary manslaughter was not applicable to the facts of the case, and there was no error in failing to charge the law applicable to that offense, but the law of involuntary manslaughter was involved.</p> <p>3. It was error 'for the judge to have charged in this case the law of' justifiable homicide, as set out. in section 73 of the Penal Code-The provisions of this section have no application under the facts of' this case as shown by the evidence. The principles of law therein ■embodied are only applicable in cases of mutual combat, and do not. apply in any case unless the evidence or some portion of it shows; that there had been a mutual altercation between the parties.</p>

<p>Injunction and receiver. Before Judge Littlejohn. Sumter county. May 17, 1898.</p>

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

<p>Injunction. Before Judge Lumpkin. Fulton county. April 23, 1898.</p>

<p>Petition for probate — appeal. Before Judge Candler. DeKalb superior court. August term, 1897.</p>

<p>1. The rebuilding of a bridge which was a part of a system of public roads in a county is a matter that is left to the discretion of the county authorities, and this discretion will not be controlled unless it is abused.</p> <p>2. The record in the present case showing that the two bridges in question were a part of the same public road and both necessary in order to complete it as such, and that one of them has been déstroyed for more than twenty years, and the other for a number of years, and the action of the county commissioners from time to time on the question of rebuilding showing a practical abandonment and abolition of the bridges as a part of the public-road system of the county, the county authorities did not abuse their discretion in refusing to rebuild the same, and it was error in the judge of the superior court to grant a mandamus absolute compelling the erection of the bridges.</p>

<p>1. A stipulation in a contract of conditional sale of-personal property, to.the effect that if default shall be made in any of the payments-therein mentioned, the buyer agrees to return the property, and that the seller or its agent may resume actual possession of the same, taken in connection with the entire language of the contract, is to-be construed as placing upon the buyer the duty of delivering the - property to the seller when demanded after a breach of the contract • ■»' by the former.</p> <p>2. Such, a stipulation does not authorize the buyer to voluntarily return the property and demand a rescission of the contract upon a breach of the obligations undertaken by him in the contract.</p> <p>3. The verdict is supported by the evidence, and there was no error requiring the granting of a new .trial.</p>

<p>Action on bond. Before Judge Felton. Crawford superior-court. October term, 1897.</p>

<p>Complaint — appeal. Before Judge Felton. Bibb superior court. November term, 1897.</p>

<p>1. Where a demurrer to a petition, raising the question that the court was without jurisdiction to try the case, is overruled, and the case ■ proceeds to trial and a nonsuit is awarded, and a writ of error is sued out by the plaintiff, complaining of the awarding of the non- - suit, and a cross-bill of exceptions is filed by the defendant, complaining of the ruling on the demurrer, the cross-bill of exceptions, rais* ing the question of jurisdiction, will be first considered by this court.</p> <p>2. In a suit against a railroad company in the county where its prin- • cipal office is located, the petition, alleging that the injury complained of occurred in another county but failing to allege that there was no agent of the railroad company in .the latter county, ' failed to allege sufficient facts to give the court jurisdiction, and. ( should have been dismissed on demurrer.</p>

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

Action on contract. Before Judge Reese., Lincoln superior -court. October term, 1897. The plaintiff sued Wright, Harmon, Hollinshead, and Mc-.Brayer, for $600 on account of an alleged breach of contract to take and pay for a lot of lumber. At the trial the court granted .a nonsuit, and plaintiff excepted.

<p>Exceptions to auditor’s report. Before J udge Eite. Bartow superior court. July term, 1897.</p>

<p>There is, in equity cases, no constitutional right of trial -by jury in this State, but such right, so far as it exists, is statutory only.</p> <p>Little, J., concurring specially.</p>

<p>Equitable petition. Before Jndge Eite. Whitfield superior 'Court. October term, 1897.</p>

<p>It being a material question, in tke trial of a claim case, whether the defendant in fi. fa. owed the debt which was the consideration of an alleged deed from him to the claimants, it was error for the court to refuse to admit in evidence a letter written by the defendant in fi. fa., acknowledging the debt, before the pendency of the litigation or the existence of the claim which the plaintiff was seeking to enforce.</p>

<p>Two persons being indebted to each, other, one upon an account for money loaned, the other upon two promissory notes, and the open account creditor having rendered to the other a statement of the account, accompanying the same with a check for the difference between the two debts, and a letter stating that it was to cover the-balance due, and requesting that the notes be canceled and returned,, such statement and letter were equivalent to a proposition of settlement upon the terms stated in the letter; and a presentation of the check for payment and the retention of the proceeds of the same-would, after the lapse of a reasonable time from the submission of the -proposition and the failure to return the money, raise a conelusive presumption of the acceptance of the proposition contained in the letter. Especially would this be the result in a case where the open account creditor, relying upon the retention of the money as an acceptance of his proposition, allowed his claim to become barred by the statute of limitations.</p>

Petition to legitimate child. Before Judge Henry. Eloyd superior court. July term, 1897.' A bastard girl was born in February, 1806, The father was indicted and tried for seduction, and was found guilty of fornication. He was afterwards, prosecuted for bastardy, and pending the indictment for this offense he married a woman other than the mother of the child.

Exceptions to auditor’s report. Before Judge Henry. EloycL superior court. July term, 1897. J. J. Miller died on October 20, 1894, leaving a widow, Martha G., and five children. Of these, .Frank W. Miller and Ella. Eich are children of a former marriage. The second marriage - was on September 16, 1866, said Martha G. then being the-widow of William Ware; and at the time of this marriage was'pending her proceeding to have’ assigned to her dower in the-lands of William Ware.

Action for damages. Before Judge Harris. City court of Floyd county. December term, 1897. By ordinances of the City of Rome, every resident of that' city was required to be successfully vaccinated, or to be vac— cinated. a sufficient number of times to make it evident that'successful vaccination was impossible; and upon 'failure or refusal of any resident over fifteen years of age to be so vaccinated, it was provided that hé should be punished by fine or imprisonment.

<p>1. In an action for damages growing out of a breach of contract of carriage, entered into between a passenger and a railway company, it was error to charge that “In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff”; and “In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors. The worldly -circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed.”</p> <p>’2.- Under the facts of the present cases, verdicts for $250.00 and $300.00 were excessive in amount.</p>

<p>1. The cardinal rule of construction of deeds, as well as other contracts, is to ascertain the intention of the parties. If that intention be clear from the deed and circumstances of the transaction and contravenes no rule of law, it should be enforced, notwithstanding there might be mere literal repugnancies in different clauses of the ; conveyance. It follows from the above, that where a father in the 1 granting clause of a deed conveys to his daughter, “ her heirs and. assigns,” a certain tract of land, and afterwards in the habendum clause the conveyance is enlarged by words to have and to hold said land and its appurtenances unto the daughter and her two children, naming them, “ made equal as heirs,” the real intention of the parties to the conveyance is to pass an estate in common to the daughter and the other two named persons. An action of ejectment for the recovery of a portion of the land embraced in the deed in favor of these three owners as plaintiffs can be maintained.</p> <p>2. This court can not consider any ground in the motion for a new-trial, complaining of errors in the court below in admitting or rejecting testimony, when the motion fails to set forth what was. the particular testimony thus admitted or rejected.</p> <p>3. There was sufficient evidence to sustain the verdict.</p>

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

<p>Equitable petition. Before Judge Lumpkin. Eulton superior co-urt. September term, 1897.</p> <p>On February 12, 1895, Minnie I/aura Parish, a minor,, brought suit by her next friend against L. Coben & Co., a firm, composed of L. Cohen, E. Steinheimer, and Jacob Menko, and against L. Cohen individually-and John T. Parish, alleging, in brief: In April, 1886, Samuel T. Bryan, by a deed recorded May 7, 1886, conveyed to the plaintiff, through her-father John T. Parish, as trustee for her, a certain lot of land in Atlanta. The deed contained a clause as follows: “This conveyance made with power to said John T. Parish, trustee as aforesaid, to sell and convey said property at public or private sale, without any order of court for that purpose.” On September 13 of tbe same year, the sberiff, under a fi. fa. in favor of L. Cohen & Co. against Jobn T. Parish, assumed or pretended' to sell the property, and L. Cohen bid it in, the alleged consideration being $100. The sheriff’s deed to him is void, because-John T. Parish bad no leviable interest in tbe property, the-property belonging exclusively to the present plaintiff. On August 21 of that year, John T. Parish, having become indebted' to L. Coben & Co. and L. Colien for whisky and barroom supplies, was induced by L. Cohen to execute, as trustee, a deed conveying said realty to L. Coben in payment of the whisky account and for similar goods to be thereafter supplied. This indebtedness was exclusively that of tlie plaintiff’s father, and she-had no interest in it, and tbe deed is void. Tbe alleged consideration, $500, is less than half the value of the property. The trustee had no power to execute such a deed, and the-.grantee knew this, and knew thát the plaintiff had no interest in and derived no benefit from the transaction, and wrongfully .and fraudulently induced Parish to execute the deed. Cohen took possession of the property on or about the date of the deed, and continued wrongfully in possession until March, 1893, •.when he sold it to one Speer, an innocent purchaser. The plaintiff prayed for a judgment against L. Cohen & Co., and .against L. Cohen individually, for $1,250, which she alleged ■was the value of the property on August 21, 1896, together with interest. L. Cohen & Co. and L. Cohen, in their answer, denied the allegations as to fraud, and alleged that they bought ■the property from Parish in good faith, believing it was subject to their debt. They contended that the sale by the sheriff was valid, and the sheriff’s deed conveyed a good title; that the •deed to John T. Parish purporting to create a trust for the benefit of the plaintiff was void as against his creditors, because the consideration of the deed was a lot belonging to Parish which Bryan received from him in exchange for the one conveyed, and the conveyance was therefore in the nature of a gift to the plaintiff from Parish, who was then insolvent, and because it was made for the purpose of hindering, delaying, and defrauding his creditors; and that the deed executed to Cohen by Parish was made in consideration of $500, and created a .good title. On the first trial the verdict was for the plaintiff, and a new trial was granted. 100 Gra. 335. On the last trial there was a verdict for the plaintiff for $700 principal and '$519.94 interest. The defendants moved for a new trial, which was denied provided the plaintiff would write off '$204.40, with interest thereon from August 21, 1896. This was done. To the overruling of the motion Cohen et al. excepted. The motion alleges, beside the general grounds, that the court erred:</p> <p>In admitting in evidence the record of homestead proceedings, application by Eva Parish and John T. Parish to the superior court to allow them to sell the lot described in the petition, proceedings and order of court, petition to sell this homestead property, appointment of a guardian ad litem for the two minor children of Eva and John T. Parish, his consent as guardian that it should be sold, and the order of the judge of' the superior court authorizing its sale and stating certain terms of reinvestment of the fund arising from the sale. It appeared from this evidence that on April 17, 1876, Eva Parish, wife of John T. Parish and mother of the plaintiff, filed her claim of exemption under section 2040 of the Code of' 1873, including in the schedule land subsequently exchanged by John T. Parish for the property conveyed to him by the trust deed in question, and that the exemption was allowed. Defendants objected to this evidence, on the grounds, that there was no evidence that Eva and John T. Parish had any such property, nor that they had a homestead on the property, except as stated in the petition, and the homestead would be the-highest evidence of that fact; that it should first be shown that Cohen & Co. had notice of this homestead fund; that if Parish had any homestead funds, this fact did not create a debt from him to his daughter, for she had no interest in the homestead estate nor in its proceeds, certainly not to the extent of justifying him in giving her his property. The judge held that the-evidence was not admissible to show the truth of the recitals in the petition, as' against Cohen & Co., but that he would admit it as against Parish. Movants contend that it was not admissible even as against Parish, and that its only effect would be to cloud and prejudice the minds of the jury, to the injury of Cohen & Co. Also, in allowing S. T. Bryan to testify that John T. Parish, at the time he traded lands with witness and took the deed from him to the property in question to himself' as trustee for his daughter, stated to the witness that he had some money belonging to his daughter, and he would take the-property the witness proposed to trade to him in part pay for his place. This was offered to show good faith of Parish in the-transaction; that he really thought he owed his daughter some-money and had a right to convey this property to her in payment of the debt. Defendants contended that the statement of Parish at the time of this trade to Bryan was not admissible as against Cohen & Co., and that even though Parish thought he owed his daughter, he did not owe her anything of the homestead estate, and had no right to make the- conveyance to her as against Cohen & Co., and that plaintiff had no right to put in evidence the fact that Parish thought he was paying a debt to his daughter, for the purpose of showing good faith and supporting a deed of gift to his daughter. The evidence was admitted, not to show a valuable consideration, but as bearing on the question of intent or fraud. Also, in permitting John T. Parish to testify: “My intention in having the deed of April 30 made to my daughter was to pay money that I owed my daughter, and set it aside for her so it would school her,” referring to the homestead money. Defendants objected that the intentions of Parish would not bind them; and that, it being shown that no consideration actually passed from the daughter to the father, plaintiff had no right to have a good motive shown in an attempt to make a conveyance for a valuable consideration. Also, in allowing John T. Parish to testify that, after the order of court authorizing him to sell the homestead property had been granted, he vacated the property, and afterwards Henson went into possession of it and paid him $500 for letting him go in. Movants objected that the deed from Parish to Henson, if any, was the highest evidence of what property was conveyed and what consideration was received; that even though there had been a sale and Parish had received the $500, it was not a sufficient consideration for the conveyance from Parish to his daughter. As to these grounds see the third division of the opinion.</p> <p>In charging the jury: “Certain evidence was introduced before you touching whether a homestead or exemption had been granted on certain property, whether Mr. Parish received certain money growing out of or under an order of court with respect to that property, and what he did and what he said at the time of making the transaction by which the deed was put in him as trustee. This evidence was offered and admitted to be considered by you along with the other evidence in the case on the subject of intention, or good faith or bad faith; but it is conceded, and the court so charges you, that such evidence did not operate as proving the truth of what Mr. Parish may have said, that his declarations are not evidence of the fact of what he states, that they were offered and admitted for your consideration on the subject of his intention and not as proof of the actual fact which he may have stated or recited further than the question of intent on his part; and, as I stated to you, it is further conceded by counsel in open court that the evidence touching the homestead and the transactions resulting with regard to it does not show a valuable consideration for the taking of the deed by Parish in his name as trustee for his daughter. You may therefore act on the statement that there is no proof of a valuable consideration, and that the taking of title in his name as trustee was therefore a voluntary conveyance, or amounted to a voluntary conveyance between him and his daughter.” And, “If he was solvent, however, he could make a voluntary deed or conveyance, and it would not ipso facto be void; that is to say, if a man is solvent, the mere fact that he makes a voluntary conveyance does not render the conveyance void as against his creditors. If a man has sufficient means to pay his debts, if he is solvent, and he makes a voluntary conveyance which does not leave him sufficient to pay his debts, the transaction would be void as against his creditors, but if he is solvent and makes a voluntary conveyance which does not leave him unable to pay his -debts out of his assets in hand, the conveyance would not be void merely because it may have been voluntary.” And, “You will perceive that the plaintiff claims to recover on the ground that the trust property has been diverted; therefore, if she is entitled to recover, she would be entitled to recover to the extent to which she has been injured by reason of such diversion, if it existed, that is, to the extent of the value of the trust property misappropriated or diverted, with interest on it from the date of such diversion. It appears in the evidence that, in addition to the indebtedness of Messrs. Cohen & Co., there was some amount in cash given to Parish, the trustee. In order for this to be set off as against the recovery of the plaintiff (if she be entitled to recover), it must appear from the evidence that this went to her benefit and was actually used for her benefit or the trust estate. If it does not so appear, it would not be a matter of credit.” And, “If the trust deed in Parish, trustee, was valid, and Cohen took a conveyance from him with a knowledge of this trust and knowing that it was made to pay an individual debt of Parish, this would be a diversion, and- Cohen could not set up prescriptive title under that deed as against the beneficiary. One who takes property from a trustee, knowing it to be diverted, takes subject to the trust. Therefore, as to the conveyance from the trustee.to Cohen & Company, if it amounted to a diversion, it would not form a basis of a prescription by Cohen as against the beneficiary of the trust.”</p>

<p>The writ of injunction does not, under any circumstances or at the instance of any person, lie against the prison commissioners of this State to restrain them from entering into a contract for the hiring of convicts, nor against any person or persons with whom the commissioners are about to make such a contract, when the granting of the injunction would, either directly or indirectly, interfere with the performance by the commissioners of the duties devolved upon them by the act creating a prison commission for this State.</p>

<p>1. When one sought to be taxed under a municipal ordinance, for carrying on a particular business in a named city, seeks to set aside its provisions as to him because of the alleged unconstitutionality of such ordinance when applied to the business in which he is engaged, the burden is on him to show clearly and unmistakably the nature and character of his business, as well as his exemption from the tax imposed, before he will be entitled to an injunction to restrain its enforcement.</p> <p>2. When the record contains evidence fairly warranting a finding that goods manufactured in another State were shipped in large quantities to a warehouse located in this State, and at that point divided and distributed among a number of customers, who, after such shipment, had purchased different'articles of these goods from a person going from house to house in a given city in this State, exhibiting samples and taking orders, which were then filled from such warehouse or distributing-point, the sales so made did not in any sense constitute interstate commerce, and the person so selling became liable to a license-tax as a canvasser, imposed by the municipality.</p> <p>3. A canvasser thus engaged is not a “traveling salesman,” within the meaning of the act of December 14, 1896, prohibiting “the municipal authorities of any incorporated town from levying or collecting any tax or license on any traveling salesman engaged in taking orders for the sale of goods, where no delivery of goods is made at the time of taking such orders.”</p>

<p>Equitable petition. Before Judge Candler. Clayton superior court. August 5, 1897.</p>

<p>An action for damages to goods, brought against a railroad company under section 2298 of the Civil Code, is not maintainable when it affirmatively appears that the goods in guestion were consigned from a point beyond the limits of this State under a contract stipulating for their delivery at a point within this State which could not, in the usual and ordinary course of transportation, be reached, and was not intended to be reached, by the defendant’s railroad. If it incurred liability for damaging the goods while being transported on its line from the point to which they had been consigned under a contract of that kind to one of its stations, such liability could be established only by bringing a proper action and supporting the same by appropriate evidence.</p>

Certiorari. Before Judge Gamble. Bulloch superior court. November term, 1897.

Action for damages. Before Judge Eve. City court of Richmond county. September 11, 1897. The petition alleged, that while plaintiff was in the employment of defendant as yardmaster, his duties being to switch, make up trains of ears in the yard, superintend their transfer to the main line of the road, and do general yard-work, it became necessary to couple a freight-car to a switching-engine and cars in the yard.

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

Certiorari. Before Judge Harris. Carroll superior court. October term, 1897. To a suit in a justice’s court, upon a promissory note, a plea of non est factum was filed. The note purported to have been signed by the defendant by his mark, and the signature was followed by that of Ben Buchanan as witness. Plaintiff tendered the note in evidence. Defendant objected on the ground that there was a subscribing witness and its execution was not proved.

<p>Complaint on account. Before Judge Atkinson. City court of Brunswick. November term, 1897.</p>

<p>Foreclosure of lieu, etc. Before Judge Reid. City court óf Atlanta. January term, 1898.</p>

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

Equitable petition. Before Judge Candler. DeKalb superior court. August term, 1897. Helen S. Howard, Alexander R. Howard and Patrick Mell Howard, by their next friend, brought their petition against Pendleton, Cassels and Inman. A demurrer by Cassels was sustained, and petitioners excepted.

<p>Action on contract. Before Judge Norwood. City court of Savannah. November term, 1897.</p>

<p>1. Where a creditor by promissory note signed by three persons, two of whom were sureties, having as further security for his debt a mortgage upon personal property, takes charge of such personalty, the same being sufficient in value to discharge the debt, and fails to appropriate it to the payment of the note, the sureties will be discharged from liability thereon. Especially is this true when the inducement held out to the sureties to undertake the obligation was a statement by the creditor that he had a mortgage upon personalty as additional security.</p> <p>2. The plea in the present case, as against a general demurrer, sufficiently set up the defense referred to in the above note and was improperly stricken.</p>

<p>Complaint for damages. Before Judge Janes. Polk superior court. August term, 1897.</p>

<p>Since the adoption of the present constitution of this State, the legislature can not confer jurisdiction over crimes against the State upon a court created for the trial of municipal offenses. Especially is this true where the attempt to confer such jurisdiction is in an act amending the charter of the city so as to create the municipal court, and there is nothing in the title of the act to indicate the legislative purpose to create a court for the trial of offenses against the State.</p>

Action on contract. Before Judge Beck. Pike superior court. October 16, 1897. Mrs. M. E. Burr, administratrix óf H. R. Chambers, brought suit on the following contract: “Georgia, Pike county.

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

Before Judge Gober. Milton superior court. February term, 1897. After verdict for plaintiff on March 1, defendants filed a motion for new trial.

Certiorari. Before Judge Callaway. Greene superior court. February term, 1898.

<p>Petition for prohibition. Before Judge Lumpkin. Pulton county. June 11, 1898.</p> <p>On November 10, 1897, an election was held in Wilcox county for the purpose of determining whether the county-site should be changed from its present location at Abbeville to Rochelle. The apparent result, as shown by the face of the returns, was 2,128 ballots cast in favor of removal, and 1,323 ballots against it. Pive days afterward, fifteen persons, who with the secretary of State constitute the defendants to the present petition, filed in the ordinary’s office a notice of a contest of the election, under the act of 1897, embracing a number of grounds of contest. It was demurred to by the petitioners in this case, on various grounds; and they as contestees filed their notice of cross-grounds of contest, to which the contestants demurred. Copies of these papers are attached as exhibits to the petition. Under the contest proceedings, evidence was submitted by both sides, and various objections were made by both parties to the admissibility of evidence, which objections were duly certified by the presiding magistrate. All tile proceedings, including evidence and objections thereto, were transmitted to the secretary of State, who has notified the contestants and contestees that he will proceed to- hear and determine the contest on June 13. 1898, and will certify to the next General Assembly the result, not as it shall appear upon the face of the returns, but as shall have been judicially decided by him after having passed upon the numerous questions of law and disputed issues of fact involved in the contest. lie has been urged to refuse to proceed under the act of 1897, on the ground that it is unconstitutional; but he refuses so to hold, and announces that he will proceed in conformity to its provisions. The contestants introdueed evidence in support of each and every ground stated in the notice of contest, and the contestees introduced evidence in rebuttal thereof; and the converse is true as to the cross-grounds of contest; thus making an issue of fact upon each ground of the contest and of the cross-contest. Many issues of law are presented by the respective demurrers, and by the various objections to the admissibility of evidence. Petitioners contend that there is no law authorizing the secretary of State to hear and determine said contest; that they have no remedy except the writ of prohibition, etc. The judge to whom the petition was presented declined to sanction it, or to grant a restraining order.</p>

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

<p>Conviction of shooting at another. Before Judge Sweat. Ware superior court. November term, 1897.</p>

<p>Complaint. Before Judge Prior. City court of Hall county. February term, 189J.</p>

<p>Indictment for murder. Before Judge Sweat. Pierce superior court. November term, 1897.</p>

<p>Petition for mandamus. Before Judge Callaway. Richmond county. December 22, 18 91.</p>

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

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

<p>Complaint. Before Judge Kimsey. White superior court. April term, 1897.</p>

<p>Complaint on account — appeal. Before Judge Gober. Cobb superior court. March term, 1897.</p>

<p>Injunction. Before Judge Smith. Pulaski county. February 1, 1898.</p>

<p>Petition for injunction, etc. Before Judge Sheffield. Early county. January 6, 1898.</p>

<p>Complaint on note. Before Judge Harris. City court of Floyd county. December term, 1896.</p>

<p>Motion to reinstate. Before Judge Eite. Bartow superior court. July term, 1897.</p>

<p>Certiorari. Before Judge Henry. Floyd superior court. January term, 1897.</p>

<p>Action for damages. Before Judge Harris. City court of Floyd county. March term, 1897.</p>

<p>Buie against sheriff. Before Judge Henry. Floyd superior court. July term, 1897.</p>

<p>Certiorari. Before Judge Janes. Haralson superior Court. January term, 1897.</p>

<p>Petition for injunction. Before Judge Littlejohn. Sumter county. November 26, 1897.</p>

<p>Injunction and receiver. Before Judge Butt. Talbot county. January 8, 1898.</p>

<p>Injunction and receiver. Before Judge Sweat. Glynn county. December 14, 1897.</p>

<p>Action on insurance certificate. Before Judge Felton. 'Bibb superior court. April term, 1897.</p>

<p>Certiorari. Before Judge Fite. Bartow superior court. January term, 1897.</p>

<p>Certiorari. Before Judge Fite. Catoosa superior court.. February term, 1897.</p>

<p>Certiorari. Before Judge Fite. Catoosa superior court. February term, 1897.</p>

<p>Certiorari. Before Judge Fite. Whitfield superior court. April term, 1897.</p>

<p>Petition. Before Judge Henry. Ployd superior court. January term, 1897.</p>

<p>Complaint on notes. Before Judge Harris. City court of Floyd county. December term, 1896.</p>

<p>Injunction. Before Judge Fite. Bartow county. November 8, 1897.</p>

<p>Certiorari. ^ Before Judge Janes. Haralson superior court. J anuary term, 1897.</p>

<p>Levy and claim. Before Judge Janes. Douglas superior court. May term, 1897.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. January 25, 1898.</p>

<p>Certiorari. Before Judge Gamble. Jefferson superior court. May term, 1897.</p>

<p>Petition for injunction. Before Judge Candler. DeKalb . county. December 30, 1897.</p>

<p>Petition to marshal assets, etc. Before Judge Felton. Bibb superior court. November term, 1896.</p>

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

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

<p>Buie. Before Judge Harris. Carroll superior court. April term, 1897.</p>

<p>Levy and claim. Before Judge Candler. Bartow superior court. July term, 1897.</p>

<p>Trover — certiorari-. Before Judge Hutchins. Clarke su-perior court. April term, 1897.</p>

<p>Practice in supreme court.</p>

<p>Complaint. Before Judge Plart. Baldwin superior court. January term, 1897.</p>

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

<p>Action for damages. Before Judge Bite. Gordon superior •¿court. May 18, 1897.</p>

<p>Injunction and receiver. Before Judge Sweat. Charlton; county. January 20, 1898.</p>

<p>Complaint on note. Before Judge Fite. Bibb superior-court. July term, 1897.</p>

<p>Distress warrant. Before Judge Freeman. City court of Newnan. July term, 189Y.</p>

<p>Motion for- new trial. Before Judge Harris. Carroll superior court. April term, 189Y.</p>

<p>Action of trespass, etc. Before Judge Hart. Laurens superior court. July term, 1897.</p>

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

<p>Complaint for damages. Before Judge Hart. Baldwin superior court. July term, 1897.'</p>

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

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

<p>Injunction. Before Judge Candler. Greene county. December 24, 1897.</p>

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

<p>Certiorari. Before Judge Harris. Troup superior court.. November term, 1897.</p>

<p>Certiorari. Before Judge Harris. Troup superior court.. November term, 1897.</p>

<p>Motion for new trial. Before Judge Gober. Cobb superior court. November term,. 1897.</p>

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

<p>Indictment for keeping a lewd house. Before Judge Ross. ■City court of Macon. December term, 1897.</p>

<p>Indictment for murder. Before Judge Reese. Glascock ■superior court. February term, 1898.</p>

<p>Indictment for assault and battery. Before Judge Little-john. Macon superior court. November term, 1897.</p>

<p>Indictment for murder. Before Judge Henry. Chattooga superior court. January term, 1898.</p>

<p>Certiorari. Before Judge Smith. Irwin superior court. March 28, 1898.</p>

<p>Petition for certiorari. Before Judge Hart. Wilkinson, county. October 28, 1897.</p>

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

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

<p>Complaint for land. Before Judge Littlejohn. Colquitt superior court. August 25, 1897.</p>

<p>Complaint for land. Before Judge Hart. Morgan superior court. September term, 1897.</p>

<p>Indictment for simple larceny. Before Judge Gober. Catoosa superior court. August term, 1897.</p>

<p>Equitable petition. Before Judge Butt. Muscogee superior court, November term, 1897.</p>

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

<p>Complaint on note. Before J. H. Worrill, judge pro hacvice. Talbot superior court. September term, 1897.</p>

<p>Motion for new trial. Before Judge Butt. Jones superior court. October term, 1897.</p>

<p>Levy and claim — certiorari. Before Judge Candler. Clayton county. December 20, 1897.</p>

<p>Complaint on account. Before Judge Smith. Marion supe-rior court. October term, 1897.</p>

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

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

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

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

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

<p>Action-for damages. Before Judge Callaway. Washington superior court. September term, 1897.</p>

<p>Complaint on notes. Before Judge Gamble.' Bulloch superior court. October term, 1897.</p>

<p>Levy and claim. Before II. B. Strange, judge pro hae vice. Jefferson superior court. November term, 1896.</p>

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

<p>Ejectment. Before Judge Gober. Eorsyth superior court. August term, 1897.</p>

<p>Indictment for stabbing. Before Judge Ross. City court of Macon. March term, 1898.</p>

<p>Certiorari. Before Judge Hutehius. Walton superior . court. August term, 1898.</p>

<p>Indictment for rape. Before Judge Butt. Talbot, superior court. March term, 1898.</p>

<p>Indictment for selling liquor. Before Judge Beck. Butts :superior court. February term, 1898.</p>

<p>Indictment for buying seed-cotton. Before Judge Reese. - Hart superior court. March term, 1898.</p>

<p>Petition for injunction. Before Judge Kimsey. Haber-sham county. March 8, 1898.</p>

<p>Warrant to dispossess. Before Judge Butt. Marion supe-xior court. April term, 1897.</p>

<p>Injunction and receiver. Before Judge Lumplrin. Fulton bounty. June 3,1898.</p>

<p>Action for damages. Before A. II. MacDonell, judge pro ha© vice. City court of Savannah. July term, 1897.-</p>

<p>Complaint. Before Judge Hutcbins. Walton superior •court. August term, 1897.</p>

<p>Motion for new trial. Before Judge Beck. Monroe superior court. November 1, 1897.</p>

<p>Petition for injunction. Before Judge Lumpkin. Bulton county. April 2.8, 1898.</p>

<p>Levy and claim. Before Judge Uttlejohn. Dodge superior "court. ■ September term, 1897.</p>

<p>Action for damages. Before Judge Kimsey. White superior court. October term, 1897.</p>

<p>Certiorari. Before Judge Balligant. ' Chatham superior-court. December term, 1897.</p>

<p>Petition for prohibition. Before Judge Palligant. Chat-ham superior court. December term, 1897.</p>

<p>Complaint on notes. Before Judge Hober. Catoosa superior court. August term, 1897.</p>

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

<p>Action for damages. Before Judge Boss. City court o£ Macon. December term, 1897.</p>

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

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

<p>Complaint on note. Before Judge Fite. Murray superior court. August term, 1897.</p>

<p>Injunction. Before Judge Fite. Dade county. April 4, 1898.</p>

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

<p>Certiorari. Before Judge Henry. Floyd superior court, July term, 18 9 Y.</p>

<p>Equitable petition. Before Judge Harris. Carroll superior' «court. August 31, 1897.</p>

<p>Rule. Before Judge Harris. Carroll superior court. August 13, 1897.</p>

<p>Equitable petition. Before Judge Eite. Gordon superior court. ApriBl7, 1897.</p>

<p>Complaint on notes. Before Judge Beck. Monroe superior' court. August term, 1897..</p>

<p>Petition for injunction. Before Judge Janes. Haralson county. May 31, 1898.</p>

<p>Injunction and receiver. Before Judge Janes. Floyd county. April 18, 1898. .</p>

<p>Indictment for murder. Before Judge Candler. Eulton superior court. May term, 1898.</p>

<p>1. A will by which land is devised to named legatees, “to have and to hold in common for a home and support so long as they remain together; should one or more leave they can take such as is given them individually in this will, but have no share or control of this that is given in common, without the consent and signature of those that remain on the place,” with restrictions on the power of either to alienate or lease any part of the land without the consent of all, constitutes the legatees named tenants in common in the land devised, with a condition subsequent that the whole land be used for the support of such of the named legatees as choose to reside on the place.</p> <p>2. If for any reason the condition becomes incapable of performance, it will be rejected, and the devise will be held to be absolute. Accordingly, if one or more of the legatees be forced to remove from the land by the cruel treatment of another, the condition imposed by the will becomes impossible of execution, and the use of the land follows the title divested of the condition.</p> <p>3. The petition in this case contains averments sufficient, if proved, to authorize a recovery of some amount from one of the defendants, and it was error to dismiss it on' demurrer.</p>

<p>A deed executed in 1844 conveying land to a trustee for the use and benefit of a married woman for her life, and declaring that at her death the same should vest in the children born of her body, but that in the event of her death "without any children so born of her body as aforesaid, or that her child or children may all die intestate and without issue” after her death, “then the said premises to be sold, and one half of the net amount of salé to vest in and be the property of [R.C.], his heirs and assigns, and the other half to revert to and become the property of [the grantor], his heirs-and assigns, thenceforth and forever,” conveyed to R.C. a contingent interest subject to testamentary disposition by him.</p>

<p>1. When the owner contracts' with a railroad company to sell to it a right of way over his land, receives a part of the purchase-money in cash, and takes promissory notes for the balance, reserving title to himself until the same are paid, and consents to the placing on the land of railroad-track, etc., as a part of a continuous line, an action of ejectment can not thereafter be maintained by such owner to dispossess the company of the right of way so procured.</p> <p>2. Even if in such a case the purchase-money notes remain unpaid, and they become barred by the statute of limitations, this fact is not material in determining the question as to whether the action of ejectment would lie.</p>

Action, for damages. Before Judge Proffitt. City court of Elberton. August term, 1891. Nathan Morrison, who was a laborer in the employment of A. S. Campbell, was injured by being thrown from a moving car on the Elberton Air-Line Railroad, to which car he was endeavoring to apply the brakes.

Levy and claim. Before Judge Hutchins. Clarke superior court. December 9, 1897. An execution was levied on land, and a claim interposed. A verdict was rendered finding the property subject to the execution, and claimant’s motion for a new trial was overruled.

<p>Levy and claim. Before Judge Harris. Troup superior court. September 8, 1897.</p>

Complaint. Before B. E. Thrasher, judge pro hac vice. Morgan superior court. September term, 1897. This was an action by Anderson, administrator of A. W. Foster, against F. C. Foster, executor of A. G. Foster, and against E. W. Butler, executor of Joshua Hill.

Injunction. Before Judge Hutchins. Clarke superior court. April 23, 1898. This was a petition for an injunction to prevent the sale of property levied on as the property of the petitioner, under executions issued against him by the tax-collector of Clarke county, one for $10, “ amount of State capitation tax as president of bank, due for the year 1891,” and the others for the same tax for ensuing years.

<p>1. It is not erroneous to overrule a demurrer attacking collectively two or more paragraphs of a defendant’s answer, when it appears that in at least one of these paragraphs a good defense is set up.</p> <p>2. The verdict in this case was not warranted by the evidence, and ought to have been set aside.</p>

<p>Complaint on note. Before Judge Reese. Hart superior court. November 15, 1897.</p>

<p>Indictment for arson. Before Judge Gamble. Bulloch superior court. May 30, 1898.</p>

<p>1. A judge of the superior court may, in his discretion, transfer a misdemeanor case from the superior to the county court for trial, without regard to the court in which such case originated.</p> <p>2. An order for such transfer, however, can not be granted in vacation.</p>

<p>Indictment for perjury. Before Judge Gamble. Tattnall superior court. May 23, 1898.</p>

<p>Certiorari. Before Judge Gamble. Screven superior court. May 18, 1898.</p>

<p>1. If in a prosecution for murder there be evidence of an altercation , and mutual combat between the accused and the deceased, it is proper to charge section 73 of the Penal Code.</p> <p>2. Unless a written request be a pertinent legal charge, the judge should decline to give it.</p> <p>■ 3. The evidence authorized the verdict, and there was no error in denying a new trial.</p>

<p>Accusation of -abandoning child. Before Judge Berry. Criminal court of Atlanta. June term, 1898.</p>

<p>Certiorari. Before Judge Gamble. Screven superior court. May 30, 1898.</p>

<p>Wrongfully entering and taking possession of the place of business of another in his absence, remaining in possession until his return, and refusing to leave when requested to do so by him, may or may not amount to such provocation as will justify the owner in using to the wrong-doer, upon his refusal to leave, opprobrious words and abusive language tending to cause a breach of the peace. On the trial of an indictment against the owner for using language of the character above referred to, it should be left to the jury to determine whether or not, in their judgment, the circumstances were such as to justify the accused.</p>

Indictment for trespass. Before Judge Sweat. Clinch superior court. April term, 1898. Cox was indicted for trespass in cutting a number of cypress and pine trees upon the land of Mrs. Anderson.

<p>Certiorari. Before Judge Beck. Pike superior court. April term, 1898.</p>

<p>Certiorari. Before Judge Smith. Dodge superior court.. March term, 1898.</p>

<p>Accusation of larceny. Before Judge Berry. Criminal court of Atlanta. July 9, 1898.</p>

Accusation of larceny. Before Judge Berry. Criminal court of Atlanta. June term, 1898. The plaintiff in error was accused of stealing fifteen dollars in money. The testimony shows, that he went to the prosecutor, who was on a train with his wife, and asked if the prosecutor had two ten-dollar bills which he could get for change. Prosecutor produced the two bills and held them until defendant had counted out three five-dollar bills and five dollars in change.

Indictment for murder. Before Judge Littlejobn. Macon superior court. June 11, 1898. To the facts stated in the opinion it is necessary to add only that the preliminary examination of the child referred to in the second division was as follows: Q. How old are you, Joe? A. I am ten years old. Q. Who made you ? A. God made me. Q. Is it right or wrong to tell the truth ? A. It is right to tell the truth. Q. What about a story? A. A story is a lie.

<p>1. Before there can be a conviction for the offense of assault with intent to commit a rape, it must appear that the accused, with the intention of having carnal knowledge of the female forcibly and against her will, did some overt act amounting to an assault upon her. It was therefore error to charge the jury that, “if you find that this defendant formed the intent and design in his heart to have carnal knowledge of [the female alleged to have been assaulted], forcibly and against her will, and in the accomplishment of that evil design and intent, slipped into her room and secreted himself there, awaiting an opportune moment to carry his evil design into execution, and being detected, fled and made his escape, the court charges you that that would make such a case as that the necessary element of assault would be in it, and you would be authorized to find this defendant guilty of the offense as charged in the indictment, that of an assault with intent to rape.”</p> <p>2. The verdict was contrary to law and the evidence, and the refusal of a new trial was error.</p>

Accusation of having and carrying concealed weapons. Before Judge Freeman. City court of Newnan. July 14, 1898. The plaintiff in error, having been convicted, moved for a new trial upon the grounds that the verdict wras contrary to law and the evidence; the motion was overruled, and he excepted.

<p>Indictment for larceny from the house. Before Judge Willis. City court of Columbus. July term, 1898.</p>

<p>1. An extraordinary motion to set aside a verdict on the ground that one of the jurors was not a resident of the county at the time of the trial raises an objection propter defectum, and arises too late after the verdict, though the movant did not know the fact alleged until after the verdict. Were the rule otherwise, this court will not reverse the judgment of the court below when it appears from the counter-showing made by the State at the time of hearing the motion, that there was sufficient evidence to authorize the judge to conclude that the facts alleged in the motion were not true.</p> <p>2. This court can not consider a ground in a motion for a new trial alleging error on the part of the court below in admitting certain testimony, it not appearing in the motion nor the bill of exceptions that any objection was ever made to the admission of such testimony.</p> <p>3. On the trial of an issue made by a plea of not guilty, under an indictment for murder, whether the sheriff had previously had the jail guarded for fear the defendant might be lynched was immaterial, and the court did not err in excluding such testimony from the jury.</p> <p>4. The charge of the court fully, fairly and correctly presented to the jury the law bearing upon the issue involved, and, in the light of the entire charge, there was no merit whatever in any of the exceptions taken to the portions thereof set forth in the motion for a new trial.</p> <p>5. In the trial of a murder case the jury, should they find the defendant guilty, are vested with absolute power to recommend, or not, the defendant to life imprisonment, as they see proper, and a failure to recommend can under no circumstances authorize the court to set aside their verdict.</p> <p>6. There was no error in overruling the ground in the motion based on newly discovered evidence, when it did not appear that either the defendant or his counsel did not fcnow of the newly discovered testimony until after the verdict. Especially is this true when most of such newly discovered testimony was either immaterial or impeaching in its nature, and when all of it was met by rebutting affidavits presented by the State contradicting the affidavits of defendant used in support of his motion.</p> <p>7. The evidence in this case was sufficient to sustain the verdict.</p>

<p>1. It is proper for the court, in the trial of a case where the evidence is both direct and circumstantial, to define to the jury each class of evidence and explain the difference between them.</p> <p>2. That some of the instructions embraced in the charge of the court to the jury in a criminal case were not warranted by the evidence, will not be held cause for a new trial when it is apparent that these instructions tended to benefit, and could not in any event have resulted in injury to, the accused.</p> <p>3. That the court, after stating to the jury an important contention of the accused, did not in that immediate connection inform them what effect should be given to this contention if found true, is not cause for a new trial when, from other instructions and in the very nature of things, it is palpably apparent that the jury could not have failed' to understand that, if this contention was established, they should' acquit the accused.</p> <p>4. Mere failure to charge concerning the impeachment of witnesses will' not require a new trial when the attention of the court was not called to this subject, and there was no request to charge thereon. 5. The evidence fully warranted the verdict, and the record discloses no good reason for setting it aside.</p>

<p>When, in a trial for burglary, the fact of the breaking and entering has been clearly shown, as well as that certain articles of value were taken from the house at the time of the burglarious entry, and it also appears that early in the morning of the day after the burglary was committed at night, the accused was in absolute possession of a part of the stolen goods, such possession is a circumstance tending to show that the accused is guilty of the offense charged. Not being of itself conclusive of guilt, it is the duty of the trial judge to give in charge to the jury the principles of law by which the weight of such circumstance is to be determined in ascertaining guilt, and also under what circumstances a conviction on circumstantial evidence is warranted, without any request to do so. But when, in addition to such evidence, it further appears that, without notice that he was suspected of the crime, the accused attempted, the day after the burglary, to escape; that his account of such possession was unsatisfactory and entirely insufficient to rehut the presumption raised by his possession; and when the charge of the court, saving the omissions referred to, was full and complete, the jury being properly instructed as to the weight they could give to the statement which recited the manner of acquiring 'possession, and the law touching reasonable doubts fully explained, a new trial will not be granted. It would be otherwise if the evidence made the case close or doubtful? or if the account given of the manner in which the possession of the stolen goods was obtained was probable or consistent.</p>

<p>The verdict was contrary to law and the evidence, and the refusal of a new trial was error.</p>

<p>1. The question whether or not, upon the assumption that the State’s theory as to the facts was duly established by evidence, the offense committed was simple larceny, or some other offense, is dealt with in the case of Hecox v. State, ante, 625, and a similar question is discussed in the case of Finkelstein v. State, ante, 617.</p> <p>2. It was, in a criminal trial, erroneous to allow the State to prove by parol the contents of a written telegram prejudicial to the accused, without first requiring the proper foundation for the introduction of the secondary evidence to he laid.</p>

<p>1. On the trial of a person who is Jointly indicted with another for the offense of forcible detainer, evidence of the acts and conduct of such other in the presence and under the direction of the person on trial, is admissible.</p> <p>2. In the trial of such a case evidence that the prosecutor had instituted against the accused a civil action of forcible' detainer for the same land, and that such proceeding was still pending, is irrelevant.</p> <p>3. The requests to charge, so far as legal and pertinent, were covered by the general charge, which was free from substantial error. The verdict was sustained by the evidence, and there was no error in refusing a new trial.</p>

<p>Accusation of simple larceny. Before Judge Eve. City court of Richmond county. September term, 1898.</p>

Indictment for murder. Before Judge Callaway. Richmond superior court. April term, 1898. Humphrey Johnson was indicted for murder in the slaying of Clarence Merian, and was found guilty of manslaughter. His motion for a. new trial was overruled, and he excepted.

<p>1. It was not, in the trial of a criminal case, erroneous to permit the State to introduce evidence of a portion only of a statement made by the accused at a previous trial, without requiring the State to prove “the entire statement on the former trial,” the court ruling that no part of the statement would be excluded, and the accused being given an opportunity to introduce “the entire statement, if desired.”</p> <p>2. When in the trial of a murder case there was evidence showing that the accused, at the time of the homicide, was a fugitive from justice charged with burglary, and the solicitor-general in his argument before the jury inadvertently referred to the accused as “a burglar,” but immediately and of his own motion withdrew this language and stated that he merely intended to say the accused was “charged with burglary,” and the judge followed up the correction thus voluntarily made by the solicitor-general with appropriate instructions to the jury, the impropriety of applying to the accused the term first above quoted may properly be treated as having been cured, and therefore as constituting no cause for a new trial.</p> <p>3. If evidence is admitted without restriction as to its applicability to the issues involved, counsel in commenting upon it to the jury has the right to draw from it any inference apparently reasonable and legitimate, and endeavor to convince the jury of the correctness of such inferences.</p> <p>(a) That portion of the argument of the solicitor-general of which complaint is made in the present case was not, in view of all the facts and circumstances in proof, improper.</p> <p>4. Where in a trial for murder it was a seriously contested issue whether the fatal shot was fired by the accused or another, it would of course be erroneous for the judge to express or intimate an opinion that it was fired by tbe accused; but in determining whether or not a single sentence of the charge was in this respect objectionable, it is proper to consider the entire charge and all the instructions given in connection with this particular matter.</p> <p>■5. There was no error, while charging upon the statement made by the accused, in instructing the jury as follows: “If you find the statement consistent and true, you have the right to believe it in preference to the sworn testimony in the case. You should not do so carelessly or capriciously; but under your oaths as jurors, considering his statement in connection with the sworn testimony in the case, and testing it in the light of such testimony, give it such weight as you think proper.” Little, J., dissenting.</p> <p>■6. Mere failure to have a verdict, or verdicts, previously rendered in the same case, covered up or concealed from the jury will not, in the absence of any request on the subject, be treated as error.</p> <p>7. The requests to charge, so far as legal and pertinent, were so fully and fairly covered by the general charge given as to leave no room for doubt that the contentions of the accused therein embraced were understood and intelligently passed upon by the jury; several of the requests were properly refused because giving them would have put the judge in the attitude of expressing an opinion upon contested issues of fact, or of requiring the State to carry a greater burden than the law imposes. The evidence, though conflicting, was amply sufficient to warrant the verdict.</p>

<p>Indictment for selling intoxicating liquor. Before Judge Hammond. City court of Griffin. September term, 1898.</p>

<p>Indictment for assault and battery. Before Judge Oandler* Eulton superior court. March term, 1898.</p>

<p>1. Wh.erp a municipal ordinance, in one section, provides that “Peddlers engaged in selling any kind of merchandise shall pay per year $500.00,” and in another section provides that “ Transient traders or-dealers who shall take orders for any of the following-named articles at retail shall, before offering the same for sale, or soliciting orders, take out a license, to be fixed by the mayor, viz.: clocks, watches, clothes, shirts, dry-goods, boots, shoes, hats, caps, hardware,, jewelry, spectacles, silver and plated ware, fancy goods, groceries or furniture,” an agent engaged in going from house to house, carrying samples of curtains and rugs, and taking orders for such goods, which orders are filled by his principal, is not a peddler, within the meaning of the ordinance.</p> <p>2. Though such agent may in a single instance offer to sell, or even actually sell, one of the samples which he carries with him, this fact, alone would not render him liable to pay the license imposed upon peddlers.</p> <p>3. An agent of a firm or corporation who goes from town to town in this State, exhibiting samples of goods and taking orders on his employer or employers for such goods from consumers, is a “travelingsalesman,” within the meaning of the act of December 14, 1896.</p>

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

<p>Indictment for murder. Before Judge Hart. Greene su■perior court. August term, 1898.</p>

<p>1. The mere fact that the selling and drinking of intoxicating liquors was “only an incident and not the main object” of the incorporation of a social club, will make the place where such liquors are dispensed and drunk none 'the less a tippling-house within the meaning of the statute making penal the keeping open of such houses on the Sabbath day.</p> <p>2. A person who is the manager, and also a member and officer of such a social club, and who exercises a general superintendence over the affairs of the club, including the bar from which intoxicating drinks are furnished, is amenable to the statute above referred to.</p> <p>3. That “only members” are permitted in the rooms of a social club will not take such an organization out of the statute prohibiting the keeping open of tippling-houses on the Sabbath day.</p>

Levy and claim. Before Judge Beck. Henry superior court. January 13, 1898. On September 23, 1896, H. F. Smith sued out a distress warrant against Legwin, and on October 9, 1896, foreclosed a landlord’s lien upon the crop raised by Legwin upon land rented from the plaintiff for that year.

<p>Distress warrant. Before Judge Beck. City court of Griffin. April 15, 1898.</p>

Accusation of keeping open a tippling-house on the Sabbath day. Before Judge Berry. Criminal court of Atlanta. September term, 1898. On September 18, 1898, Smith was convicted in the criminal court of Atlanta upon an accusation charging him with keeping’ open a tippling-house on the Sabbath day.

<p>Levy and claim. Before Judge Beck.' Pike superior court. April term,' 1898.</p> <p>Upon a,promissory note signed by Á. D. Riggins as trustee for Mrs. M. S. Riggins and dated in 1894, the payees brought suit against him as such trustee, alleging that the note was given for fertilizers to be used and which were used upon certain land controlled by him as such trustee, and that the trust estate was benefited thereby and was liable for the payment of the debt; and. they prayed for a special judgment against the land. No defense was filed, and the court rendered judgment in favor of the plaintiffs for the amount’sued for, to be made put of the land of the trust estate as described in the petition; and execution issued accordingly. To the levy of the execution a claim was interposed by Mrs. M. S. Riggins. On the trial of the claim case the plaintiffs in execution introduced in evidence, in addition to the record of the suit above mentioned, a deed'dated April 13, 1857, the material portions of which are hereinafter set out, whereby a trust in certain land, negroes, etc., was created for the benefit of the claimant, then Mary Susan Neal, the land described including the'land in dispute, and the trustee named in the deed being John Neal; also her petition to the judge of the superior court, filed December 13, 1870, showing that in 1869, in a suit by her against the maker of the deed and against John NealjMhe trustee, touching the subject-matter of the trust, a consent decree was rendered whereby Milton Rig-gins was substituted as trustee in lieu of John Neal, and that Milton Riggins afterwards died; and praying for the appointment of her husband, A. D. Riggins, as successor in the trust; which petition was followed by an order of the judge granting the same; also a bond given by A. D. Riggins as trustee, in pursuance of the order. The following facts were submitted in evidence by agreement of counsel: A. D. Riggins was in. possession and control, as trustee, of the land described in the levy, when the levy was made, and has been since his appointment as such trustee. The marriage of Mary Susan Neal to A. D. Rig-gins took place in 1867. At the date of the execution of the trust deed no children of Mary Susan Neal were in life, her first child being born in 1868.</p> <p>The claimant contended that no children of Mary Susan Neal being in life at the date of the trust deed, the trust was created for her sole use and benefit, and that upon the passage of the . act of 1866, known as the “ married woman’s act,” the trust became executed and title Arested absolutely in her.</p> <p>The court, to whom the case Avas submitted without the intervention of a jury, adjudged that the property was subject to the execution; and to this judgment the claimant excepted.</p> <p>The deed above referred to recited that it was made in consideration of the love and affection the maker (James Neal) bore to Mary Susan Neal as his adopted child, as well as five-dollars in hand paid, and conveyed to John Neal “in trust, upon consideration and for the use' hereinafter set forth,” the property described, “ as trustee'for said Mary Susan, on the condition and subject to the limitations and provisions following First, the said James Neal is to have the sole use and control of all said property and the proceeds- of the same to be appropriated and disposed of as he may choose to do during his life. Second, upon the death of said James it shall be the privilege-of Rebecca Neal, the wife of said James Neal, to remain in the* occupancy of said land's, jointly with said Mary Susan, and. work her negroes together with the negroes of said Mary Susan on the said lands, and after all expenses, including the expenses-of said Rebecca and said Mary Susan, shall be paid, the net proceeds shall be annually divided, the said Rebecca to have one-third and Mary Susan two thirds of said proceeds, and this privilege to continue during the widowhood of said Rebecca. Third, the said John Neal to have and to hold all said property and its increasé, not only for the uses aforesaid and in the way aforesaid, but also for the sole and separate use of said Mary Susan during natural life, free from all and every liability of' her husband only as contracted on account of the maintenance, support and comfort' of the said Mary Susan and her children, and at the death of said Mary Susan then to be equally divided among her children. Fourth, if the said Mary Susan, who has only a life-estate in said property, shall die without a lawful child or children living, the said John Neal is to have and to-hold said property and its increase, to be divided equally among the heirs at law of the said James Neal.” Title is warranted “unto the said and his successors in office as trustee.”</p>

Petition for injunction. Before Judge Reese. Warren county. July 11, 1898. The plaintiff in error was engaged in the business of selling spirituous liquors in the town of Barnett in Warren county under a license from the town council, when, upon the petition ■of certain citizens of the county, who were trustees of the Methodist church in the town, an injunction was granted restraining him from selling spirituous liquors in the town.

<p>1. The judge having stated, in the presence and hearing of the jury, at the time certain testimony was being offered in evidence by the State, the particular purpose for which it was admitted, the fact that he, in his charge to the jury, omitted to again make the same statement in regard to this testimony is not sufficient ground for a new trial.</p> <p>2. The evidence warranted the charge complained of on the subject of mutual combat between the defendant and the deceased, and there was no error in the charge upon the subject of voluntary manslaughter, or of justifiable'homicide, of which the accused can complain. The entire charge fully and fairly presented to the jury the law governing the issues in the case, and there was sufficient evidence to sustain the verdict of guilty.</p>

<p>Indictment for larceny from railroad-car. Before Judge Eelton. Bibb superior court. September 26, 1898.</p>

<p>1. The- rule of law in force in this State which relieves one from criminal responsibility for the commission of an unlawful act on account of mental disease is: If a man has reason sufficient to distinguish between right and wrong in relation to a particular act about to be committed, he is criminally responsible. An exception to this rule is, where a man has reason sufficient to distinguish between right and wrong as to a particular act about to be committed, yet, in consequence of some delusion, his will is overmastered, and there is no-criminal intent: provided, that the act itself is connected with the peculiar delusion under which the prisoner is laboring. Tested by this rule of the law, the evidence in the case fully supported the conviction for murder. ,</p> <p>2. A charge in the following language: “The popular idea of malice in its sense of revenge, hatred, ill will, has nothing to do with the subject [legal malice]; it is an intent to kill a human being in 'a case when the law would neither justify nor in any degree excuse that intention, if a killing should take place as intended,” states a correct principle of law, and it was not error for the presiding judge to give it in this case.</p> <p>3. 4. There is no error in the charge of the court complained of, nor in the failure to specifically charge the jury in relation to the probative value of the evidence which showed or tended to show insanity in the family of the accused. While such specific charge would have been proper, it was not demanded by the evidence in this case, certainly not without a written request so to charge.</p>

<p>"Where one is indicted for an illegal sale of intoxicating liquors, the State may prove such sale at any time within two years previous to the finding of the indictment. When the State, on the trial, has entered into an investigation of more than one transaction touching such a sale, it is not permissible for the defendant .to prove by the foreman of the grand jury who found the bill that the investigation of that body did not embrace the particular transaction which must • be relied upon by the State for a conviction.</p>

<p>l. Where error is assigned to the charge as a whole, such assignment will not be considered if it appears that any part of the charge complained of was legal.</p> <p>'2. To sustain a verdict of guilty, when the offense charged is not one arising from culpable negligence, it is necessary that intention should exist at the time of the commission of the act; and it was therefore error in the judge, on the trial- of a person accused jointly with others with the offense of riot, to charge that “when two or more persons unite, with or without a common intent, in doing an unlawful act, the acts and words of each one become the acts and words of every other one engaged.”</p> <p>3. To sustain a conviction of one charged with the offense of riot, it is necessary that the evidence should show the joint action of at least two persons, with a common intent to do an unlawful act of violence, or other act in a violent and tumultuous manner. This not being shown by the evidence in this case, the verdict is contrary to the law and the evidence, and a new trial should therefore have been granted.</p>

<p>Certiorari. Before Eebruary term, 1898. Judge Beck. Butts superior court.</p>

<p>1. An assignment of error which neither states what, if any, objection ■ was made to evidence alleged to have been illegally admitted, nor undertakes to set forth literally or in substance the evidence referred to, can not be considered by this court.</p> <p>2. An order passed by a judge of the superior court, whether in term or at chambers, granting an application presented by a trustee for leave to sell property held by him in trust, has all the sanctity which attaches to a formal judgment rendered by a court of general jurisdiction, and accordingly every presumption in favor of-its validity is to be indulged.</p> <p><o) This being so, it will be presumed, in the absence of any proof to the contrary, that all necessary parties to the proceeding were regularly before the court, or that else such order would not have been passed.</p> <p>3. "T"der the evidence submitted in the present case, a finding for the defendant was demanded, and therefore the trial court did not err in directing a verdict-in his favor.</p>

<p>Affidavit of illegality. Before Judge Hart. Putnam superior court. March term, 1898.</p>

Complaint for land. Before Judge Hart. Jones superior •court. Aprilyterm, 1898.

<p>1. On the trial of a person charged with burglary by breaking and entering a railroad-depot with intent to steal therefrom certain goods, it was not error in the court to refuse to rule out testimony of a witness who swore from his memory, after having made a personal examination of the goods, what amount of the particular class alleged to have been stolen was shipped and stored in the depot before the burglary, and what quantity had been missed therefrom after the breaking and entering, although it appeared that the amount of such goods was also indicated by way-bills in the custody of the witness.</p> <p>2. Where, on the trial of an indictment for burglary which charged the accused with breaking and entering the depot of the “Chattanooga Southern Railroad Co.,” proof was made by the State that the depot of the company named was burglariously entered as charged, testimony offered in behalf of the defendant to the effect that the corporate name of the owner of the depot was “Chattanooga Southern Railway Co.,” even if admitted, would not establish a material variance between the allegations in the indictment and the proof.</p> <p>3. Proof of the corpus delicti may be sufficient corroboration of a-confession of guilt to sustain a verdict of guilty. There was no error in the court so charging the jury, the court expressly stating in the same connection that such proof “ might be a form of corroboration, but the jury in every case are the judges of what corroborations are sufficient.”</p>

<p>A structure which, is stationary, which is eight feet tall, covered with shingles, and inclosed with wire, erected for the purpose of the safe keeping of birds and fowls, is a house within the meaning of' ou ■ code, which defines the offense of larceny from the house; and the’-c was no error in refusing to direct a verdict of not guilty, on a trial for larceny from the house, because the evidence did not establish that the structure so erected was a house.</p>

<p>Foreclosure of lien. Before Judge Smith. Monroe superior court. August term, 1898.</p>

<p>Injunction. Before Judge Lumpkin. Fulton superior court. September 13, 1898.</p>

Certiorari. . Before Clarence Wilson, judge pro hac vice. Early superior court. April term, 1898. Chancy obtained a verdict for damages from the killing of a cow by a railway-train. On certiorari the railway company alleged that the verdict was contrary to law and evidence. The certiorari was overruled. The engineer of the train testified^: lie did not see the cow until after she was killed. There were thick bushes at that point.

Action, on foreign judgment. Before Judge Smith. Pulaski superior court. August term, 1898. The declaration was demurred to upon the grounds: (1) No-cause of action is set forth, and the proceedings show a nullity. (2) The petition shows on its face that the alleged judgment is-void. (3) The petition shows no valid verdict on which to base-a judgment as sued on. The demurrer was sustained, and the plaintiff excepted.

<p>Indictment for assault with intent to murder.- Before Judge Heese. Warren superior court. May 26, 1898.</p>

<p>Accusation of larceny. Before Judge Berry. Criminal court of Atlanta. June term, 1898.</p>

<p>Certiorari. Before Judge Reese. Hancock superior court. August 8, 1898.</p>

<p>Indictment for assault with intent to murder. Before Judge Littlejohn. Stewart superior court. June 7, 1898.</p>

<p>Indictment for murder. Before Judge Gamble. Emanuel superior court. June 20, 1898.</p>

<p>Certiorari. Before Judge Smith. Irwin superior court. July 6, 1898.</p>

<p>Indictment for murder. Before Judge Sheffield. Miller superior court. July 16, 1898.</p>

<p>Indictment for shooting at another. Before Judge Smith. Bodge superior court. March term, 1898.</p>

<p>Indictment for forgery. Before Judge Eelton. Bibb superior court. April term, 1898.</p>

<p>Indictment for murder. Before Judge Sweat. Charlton superior court. August 31, 1898.</p>

<p>Indictment for burglary. Before Judge Littlejohn. Sumter superior court. May term, 1898.</p>

<p>Certiorari.' Before Judge Hutchins. Walton superior court. August 26, 1898.</p>

<p>Accusation of selling liquor. Before Judge Hammond. City court of Griffin. September term, 1898.</p>

<p>Indictment for riot. Before Judge Harris. City court of Cartersville. September term, 1898.</p>

<p>Protest to processioners’ return. Before Judge Hart. Wilkinson superior court. April 6, 1898.</p>

<p>Complaint. Before Judge Hart. Jasper superior court. April 18, 1898.</p>

<p>Action for damages. Before F. O. Foster, judge pro bac ■vice. Baldwin superior court. July term, 1898.</p>

<p>Certiorari. Before Judge Sheffield. Early superior court.. 'April term, 1898.</p>

<p>Levy and claim. Before Judge Sheffield. Terrell superior «court. May term, 1898.</p>

<p>Accusation of simple larceny. Before Judge Boss. City court of Macon. October 20, 1898.</p>

<p>' Certiorari. Before Judge Biarris. Carroll superior court.. October term, 1898.</p>

<p>Certiorari. Before Judge Reese. Hancock superior court.. October 14, 1898.</p>

<p>Injunction. Before Judge Littlejohn. Sumter superior court. August 29, 1898.</p>

<p>Complaint. Before J. F. DeLacy, judge pro hac vice. Tel-fair superior court. April term, 1898.</p>

<p>Certiorari. Before Judge Smith. Montgomery superior ■court. July 14, 1898. ^</p>

<p>Complaint. Before Judge Spence. Pulaski superior court. • August 9, 1898.</p>

<p>Injunction and receiver. Before Judge Kimsey. Lumpkin superior court. June 22, 1898.</p>

<p>Indictment for murder. Before Judge Butt. Talbot superior court. November 10, 1898.</p>

<p>Indictment for murder. Before Judge Reese. Elbert superior court. November 1, 1898.</p>

<p>Indictment for voluntary manslaughter. Before Judge Littlejohn. Stewart superior court. November 14, 1898.</p>

<p>Indictment for carrying a concealed weapon. Before Judge Winn. City court of Gwinnett. November 14, 1898.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. December 8, 1898.</p>

<p>Indictment "for burglary. Before Judge Hart. Jones superior court. November 21, 1898.</p>

<p>Complaint. Before Judge Berry. City court of Atlanta. May 30, 1898.</p>

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. January 24,1898.</p>

<p>Action for damages. Before J udge Butt. Montgomery superior court. January 29, 1898.</p>

<p>Complaint. Before Judge Berry. City court of Atlanta. July 7, 1898.</p>

<p>Indictment for assault with intent to murder. Before Judge Janes. Douglas superior court.. September 15, 1898.</p>

<p>Petition for injunction. Before Judge’ Smith. Wilcox superior court. August 2, 1898.</p>

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

<p>Garnishment. Before Judge Reid. City court of Atlanta. January 10, 1898.</p>