Volume 106 — Georgia Reports

Actions on insurance policies. Before Judge Butt. Muscogee superior court. May term, 1898.

Levy and claim. Before Judge Butt. Talbot superior court.. May 2, 1898. In the entry of levy the property was described as follows:: “ One hundred and fifty acres of land off of lot number 131;; also on one hundred acres of land off of lot number 158, south part of said lot, all' lying and being in the 17th district of Talbot county; levied on as the property of the defendant, M.'W. Hollis.

<p>Appeal. Before Judge Butt. Talbot superior court. March term, 1898.</p>

Distress warrant. Before Judge Beck. Pike superior court. April term, 1898.

<p>1. The sale of personal property by the head of a family, without an order of court for such purpose, is void when made after the same has been duly set apart under the exemption laws of the State. Where, therefore, property has been levied upon and claimed on the ground that it was exempted from levy and sale, such claim may be sustained in court although it should appear that there was a sale of such property by the head of the family, without authority of law, before the claim was filed.</p> <p>2. The evidence in this case did not demand a verdict for the plaintiff in fu fa., and the court erred in directing such verdict.</p>

Certiorari. Before Judge Hart. Putnam superior court. March term, 1898. The petition of Ann Birt to the court of ordinary alleged: Petitioner’s husband, Mack Birt, died in September, 1896. ]j).

- Petition for-rule. Before Judge Hart. Wilkinson superior court. January 24, 1898. The County of Wilkinson prayed for a rule to require the ■defendant to show .cause why he should not pay into court for the use of the county certain money collected by him as attorney at law.

<p>Levy and claim. Before Judge Butt. Chattahoochee superior court. March term, 1898. .</p>

<p>There is no law requiring the marshal of the City of Columbus to advertise the sale of property levied on for city taxes in the newspaper in which the sheriff’s advertisements are published.</p>

<p>Where a suit has been brought by a creditor against his debtor, based upon a promissory note secured by a deed to land, in which the plaintiff seeks not only to obtain a general judgment against the debtor, but also to enforce his special lien upon the land arising by virtue o'f his security-deed, a purchaser from the defendant pending the litigation is affected by the final judgment rendered in the case; and where the final verdict and judgment in the case sets up a special lien upon the property, and thus sustains the validity of the deed set forth in the petition, such purchaser • can not attack the deed for usury.</p>

<p>This case is controlled by the decision of this court in the case of Swift v. Dederick, this day rendered.</p>

<p>Where a year’s support had been set aside to a widow prior to the pendency of a suit which resulted in a judgment setting up a special lien upon the property set apart to the widow, such judgment being founded upon a security-deed by the deceased lms] nd conveying the property to the plaintiff, on the trial of a claim filed by the widow to this property, levied upon under a fi. fa. issued upon the judgment, she had the right to attack the. deed as being void for usury.</p>

Equitable petition. Before Judge Butt. Muscogee superior court. May term, 1898. By a voluntary deed dated and recorded Dec. 26,1876, Elijah Dawson conveyed certain land to his minor children, Mary, Isaac, Henry, and Adolphus. He retained possession of the land and continued to live on it, with' the children, returning it for taxation as his own, until his death, which occurred in 1896.

<p>Levy and claim. Before Judge Butt. Talbot superior court. March term, 1898.</p>

<p>The act of 1872, which provided for the establishment of county courts in certain counties and for the appointment of judges thereof, and which gave those judges jurisdiction over county matters, was not unconstitu-^ tional at the time of its passage, as being a special law which changed a general law; nor was it violative of paragraph 1 of section 3 of article 11 of the constitution of 1877, which provides that whatever tribunal or of- | 'fleers may be thereafter created for the transaction of county matters, shall be uniform throughout the State,</p>

<p>One who advances money to pay off an encumbrance upon realty, at the instance of the owner thereof and upon the express understanding that the advance made is to be secured by the immediate execution of papers which will constitute a first lien on the property, is not a mere volunteer ; and in the event the new security thus taken turns out to be defective, the person parting with his money on the faith thereof, if not chargeable with culpable and inexcusable neglect in the premises, will be subrogated to the rights of the prior encumbrancer under the security held by him, unless the superior or equal equities of others would be prejudiced thereby. Under such circumstances, the holder of a junior mortgage, being placed in no worse position by the •transaction, could not complain that subrogation would operate to injuriously affect his vested rights; and in case he is seeking to gain an unconscionable advantage by subjecting the property to the payment of his mortgage as ostensibly the highest lien thereon, to the prejudice of the person who has paid off the prior encumbrance, the writ of injunction will lie to prevent a sale of the property until the respective rights of the parties can be passed upon and finally adjudicated by a court of competent jurisdiction.</p>

<p>1. A mere statement in a warehouse receipt, that11 all cotton stored with us fully insured,” will not alone constitute a contract between the parties, requiring the warehouseman to insure the cotton of his customer and rendering him liable for the value of the same when destroyed by fire.</p> <p>2. The evidence authorized the verdict. The alleged newly discovered evidence was not of a character which ought to produce a different result, and there was no error in overruling the]motion for a new trial.</p>

Levy and claim. Before Judge Beck. Henry superior court. April 1, 1898. An execution in favor of A. L. Richardson against W. B. Willingham, dated December 11, 1895, was levied on land as property of the defendant, and D. S. and Sarah O. Willingham interposed a claim to the land as homestead property. The claim was prosecuted by Sarah C. alone.

<p>Certiorari. Before Judge Gober. Talbot superior court.' September term, 1897.</p> <p>To a distress warrant sued out by Averett agaifist Beach a •counter-affidavit was interposed, and the case was tried before E>. B. Searcy, N. P. and ex officio J. P. of the 886th district G. M. When the case was called for trial the defendant moved to dismiss the warrant, because it was not sworn to, and because it was not made returnable to the 886th district G. M. This motion was overruled. The plaintiff then proved his demand, and the court rendered judgment in his favor. Defendant on certiorari alleged that the magistrate erred in overruling the motion to dismiss. The certiorari was overruled. In his answer the magistrate stated, that Averett made the required affidavit before him, and he (the magistrate) neglected to sign his name as witness; and that the warrant was returned to the proper district.</p>

<p>Equitable petition. Before Judge Butt. Muscogee superior court. May term, 1898.</p>

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

<p>Foreclosure of lien. Before Judge Butt. Talbot superior court. March term, 1898.</p>

<p>Appeal. Before Judge Butt. Talbot superior court. March. 17, 1898.</p>

<p>Practice — motion for new trial. Before Judge Butt. Muscogee superior court. May term, 1898.</p>

<p>' Equitable ¡petition. Before Judge Sheffield. Quitman superior court. March term, 1898.</p>

Illegality. Before Judge Sheffield. Terrell superior court. .May term, 1898.

<p>Indictment for murder. Before Judge Candler. DeKalb superior court. June 29, 1898. -</p>

<p>1. By requirements of the code, the bonds of sheriffs have to be approved as well as filed and recorded; but the bonds of their deputies, though required to be taken and recorded, do not have to be approved. Hence, section 252 of the Political Code and section 272 of the Penal Code apply to sheriffs, but are not applicable to their deputies.</p> <p>2. Though deputies as well as sheriffs are forbidden by. section 241 of the Political Code to enter upon the duties of office without taking and filing the prescribed oaths, and though under section 270 of the Penal Code they commit a misdemeanor by so doing, yet, by section 242 of the Politi- . cal Code, “Tlie official acts of an officer are not the less valid for his omission to take and file the oath, unless in cases where so'specially declared.” It follows that, as between the State and the defendant in a given lawful process or order, the execution of the same by a deputy-sheriff who has omitted to take and file the required oath of .office is not illegal because of such omission, there being no statute specially declaring the act invalid ; and hence, knowingly and wilfully to obstruct, resist, or oppose such deputy-sheriff in serving or attempting to serve such process or order is a violation of section 306 of the Penal Code.</p> <p>3. According to the ruling in the case of Trowbridge v. State, 74 Ga. 434, there was no error in excluding the testimony of the husband of one of the defendants in this case.</p>

<p>Certiorari. Before Judge Hutchins. Gwinnett superior court. September 16, 1898.</p>

<p>1. The benefit, of a demand for trial duly made in a superior court is not lost ■ by reason of the subsequent transfer of the indictment to a city court.</p> <p>2. If, at a term when a demand for trial is operative, a trial be had which, results in a verdict of guilty, and a new trial be granted at that term, the failure of the accused to then move for a discharge will not affect his rights under the demand. It will stand over to be complied with at the next term.</p>

<p>• Certiorari. Before Judge Harris. Carroll superior court. October term, 1898.</p>

<p>Action for damages. Before Judge Butt. Muscogee supe^ rior court. February 8, 1898. •</p>

Action for damages. Before Judge. Butt. Taylor superior court. July 30, 1898. The suit was on account of personal injuries which the plaintiff’ alleged were sustained by him in consequence of the derailment of defendant’s train, upon which he was a passenger, the derailment being caused by the running of the train into an open switch.

<p>Motion for new trial. Before Judge Littlejohn. Sumter-superior court. January 7, 1898.</p>

<p>Indictment for selling liquor without license. Before Judge Harris. City court of Floyd county. October 17, 1898.</p>

<p>On the trial of a defendant for carrying concealed weapons, when the State relies for 'a conviction upon positive proof that the accused had a pistol concealed at a certain time and place, testimony that his habit on previous occasions was not to carry his pistol’concealed upon his person is not admissible. The verdict was not contrary to evidence.</p>

<p>Indictment for pointing a weapon at another. Before Judge Ross. City court of Macon. October 19,-1898.</p>

<p>Where a plaintiff in fi. fa. files an equitable petition against the defendant in fi. fa. and a claimant who asserts title to the property levied upon, charges collusion between the defendant and the claimant, and attacks the title relied upon by the claimant, and upon such petition an injunction is granted, restraining the prosecution of the claim case, and a receiver appointed to take charge of the property in dispute, it is not error for the judge, upon the call of the case for trial, to direct that the claim case and the case made by the equitable petition be consolidated and tried together. i x</p> <p>The failure to record, within one year from its date, a deed executed in 1884, would postpone such deed to one subsequently made by the same grantor and which was filed and recorded in due time, if the grantee in such subsequent deed took the same without notice of the existence of the first deed. If such subsequent deed be void because infected with usury, the first deed, though unrecorded, will prevail.</p> <p>3. In the trial of a claim case where the plaintiff in execution is a building and loan association, and the claimant attacks the deed upon which plaintiff’s judgment is founded on the ground that It is infected with usury, the charter and by-laws of such association are admissible in evidence in behalf of the claimant; and testimony of an officer of such association, tending to show that the actual operations of the association did not bring it within the scope of a building and loan association pure and simple, is also admissible in evidence in behalf of-the claimant.</p> <p>4. Where in such a case the plaintiff in execution is attempting to enforce a special lien upon a tract of land, which lien is founded upon a deed executed to plaintiff by the defendant in execution, and the claimant, the wife of the defendant in execution, claims under a deed from her husband, evidence showing that she made application for dower in the property is admissible on the question of the good faith of her claim.</p> <p>5. In such a case tax fi. fas. against the property in dispute, and the return of the appraisers on the estate of the deceased husband including the property in controversy, had no relevancy to the Issue and should have been excluded from evidence, it not appearing that the claimant had any connection either with the tax fi. fas. or the appraisement.'</p>

Levy and claim. Before Judge Butt. Muscogee superior court. May term, 1898. An execution against C. PI. Watt and T. B. Watt, dated April 14, 1897, was levied upon land which was claimed by the Mutual Cotton Oil Company, under a deed from the executor of W. J. Watt, w'ho, at the time of his death, was the owner of the land in dispute.

Complaint. Before Judge Butt. Taylor superior court. April 12, 1898. The Bradley Fertilizer Company sued G. T. Holleman & Son, for $594 principal, besides interest, alleged to be due upon a promissory note of the defendants, payable to the plaintiff, for $1,164, dated April 30, 1888, and due November 15 after date.

<p>1. Where a case in which there are no contested issues of fact is tried in a justice’s court, the judgment of the justice rendered therein is reviewahle by certiorari. Though the amount claimed in such. a case is less than fifty dollars, the same may be carried by certiorari to the superior court without appealing to a jury in the justice’s court.</p> <p>2. Upon the hearing of a certiorari in the superior court, in a casein which no issues of fact are involved, and the determination of which depends entirely upon questions of law, it is proper for that court to render a judgment finally disposing of the case.</p> <p>3. Where upon the hearing of a certiorari from the judgment of a magistrate, rendered upon a rule in a justice’s court against a constable, the judgment of the superior court, making the rule absolute, was, that the constable should pay, out of a fund in his hands, to the petitioner in the rule and in the certiorari, a sufficient sum to satisfy the claim of such petitioner and the cost incurred in taking the case up by certiorari, as well as the cost of the case in the superior court, and it appeared that the plaintiff’s claim together with such cost amounted to more than the fund in the constable’s hands, such judgment was erroneous.</p>

•Complaint. Before Judge Littlejohn. Sumter superior court.. February 9, 1898. On January 21,-1896, suit was brought against Brannon, as-administrator of the estate of Brown, upon a promissory note-dated May 7, 1891, and signed by the defendant as such administrator. By amendment the declaration alleged that, Brown died, leaving a plantation and certain heirs, and a will Which was duly probated (a copy of ivhich is attached to the-declaration).

<p>1. Where a verdict has been rendered for the plaintiff in the trial of an ap. peal to a jury in a justice’s court, and the justice in entering up the |udgment upon the verdict omits the name of the security on the appeal bond, there is no error in entering up judgment nunc pro tunc, at the succeeding term of the court, against both the defendant and his security, without giving previous notice to the security.</p> <p>2. The fact that the security on an appeal bond was also surety on the're, plevy bond given by the defendant when he filed his counter-affidavit is not sufficient ground, upon an affidavit of illegality filed by the surety, to arrest proceedings under a fi. fa. issued upon a judgment against him and the defendant, founded on the verdict of the jury in the appeal case.</p>

<p>Complaint for damages. Before Judge Littlejohn. Macon superior court. June 13, 1898.</p>

<p>Motion for new trial.. Before Judge Littlejohn. Sumter superior court. June 18,1898.</p>

<p>1. A judgment void upon its face may be treated as a nullity and collaterally attacked in any court; but a judgment of a superior court apparently regular and legal can, after the time for excepting thereto has expired, be set aside only by instituting a proper proceeding for that purpose in the court wherein such judgment was rendered.</p> <p>2. Applying the familiar rules above announced to the present case, there was no error in sustaining the demurrer to the plaintiffs’ petition.</p>

<p>Rule for contempt; Before Judge Sheffield. Miller superior court. April term, 1898.</p>

<p>A married woman who acquired for value title to property by deed from her husband and executed a mortgage thereon to her creditor can not, when subsequently to the date of the mortgage the property is levied on as the property of her husband under a judgment rendered on a cause of action arising after the date of the mortgage, by interposing a claim to the property and submitting to a judgment finding the same subject, prejudice in any way the rights of her mortgage creditor or of the purchaser at the sale had under a foreclosure of such mortgage, notwithstanding that such foreclosure and sale was had while the claim case was pending.</p>

<p>• On March 25,1898, a rule nisi was granted on a motion for a new trial, returnable in vacation on April 9. On March 26, an order was passed allowing the movant until April 8, to make and have approved or agreed to a complete brief of the testimony in the case. The term adjourned on March 28. No approved or agreed brief was filed on April 8. On April 9, a motion was made to dismiss the motion for a new trial, on the ground that the order in reference to the brief of evidence had not been complied with. No brief was presented for approval on the day last mentioned. Held: (1) There was no error in dismissing the motion for a new trial. (2) If in such a case the judge has any discretion in reference to the matter, the dismissal of the motion would not be an abuse of such discretion, where no reason whatever is assigned for the failure to comply with the terms of the order.</p>

Equitable petition. Before Judge Smith. Dooly superior court; June 3, 1898.

<p>1. Where one by -warranty-deed conveys to another all of a certain lot of land in this State, particularly designating the same by number and district, the vendor is liable on his -warranty for any fatal defect in his title to any portion of such lot; and this is true notwithstanding the line between such vendor and a coterminous landowner may have previously . been so established or agreed upon as to locate the line in such a way that there was cut off to the adjacent landowner a portion of the lot embraced in the warranty-deed.</p> <p>2. Under the.facts in this case, there was no error in giving in charge to the jury sections 3614 and 3615 of the Civil Code.</p>

<p>Complaint. Before Judge Spence. Decatur superior court. May term, 1898.</p>

<p>Injunction. Before Judge Spence. Dougherty superior court. September 7, 1898.</p>

Before Judge Smith. Wilcox superior court. February 3, 1898. At the September term, 1897, a verdict was rendered against the defendants. • They filed a motion for a new trial within the' time required by law.

<p>1. An affidavit, made for the purpose of entering an appeal in forma pauperis before the passage of the act of 1897, amending section 4465 of tha Civil Code, was insufficient if it omitted to state the appellant’s inability from poverty to pay the costs.</p> <p>2. Such an affidavit is amendable, but, under section 5124 of the Civil Code, a motion to amend is not good unless it appears that the omitted words were left out “by accident or mistake.”</p>

<p>Certiorari. Before Judge Smith. Dodge superior court. May 21, 1898.</p>

Certiorari. Before Judge- Smith.. Dodge superior court. May 27, 1898. Sam Paris ruled Rogers, sheriff,., in the county court, requiring him to show cause why he should not pay to movant $300-.00, the amount of an execution in movant’s favor issued upon the foreclosure of a laborer’s lien against B. S. Paris, which had been placed in the sheriff’s hands.. The sheriff answered, that-under said execution and two mortgage fi. fas. in favor of the Citizens Banking Co. against B..

<p>This court will not reverse a judgment refusing to sanction a petition for certiorari, when it affirmatively appears from the hill of exceptions that the petition was not verified.</p>

<p>Foreclosure of lien. Before Judge Spence. Pulaski superior court. August 9, 1898,</p>

Equitable petition. Before Judge Smith. Telfair superior-court. March 19, 1898. Aaron Graham, administrator of Mitchell Guerry, sold certain land at administrator’s sale as the property of the estate.of his intestate, and executed' a conveyance of the same to the purchaser, Samuel Graham, on February 7, 1893. On or about.

Complaint on notes. Before Judge Smith. Telfair superior court. April 20, 1898. In each of the notes it was stated that it was given for a mule, that the seller did not warrant the health, life, and soundness of the mule, but only the title thereto, and that in case of death the maker of the note should sustain the loss.

<p>Complaint. Before Judge Smith. Montgomery superior*<ourt. April term, 1898.</p>

<p>1. After the defendant has demurred to the plaintiff’s petition upon the ground that it sets forth no cause of action and such demurrer has been overruled, it is too late to move to dismiss the suit for the want of service, or for any defect in the process.</p> <p>2. There was no error in overruling the motion for a nonsuit in this case.</p> <p>3. While the testimony was conflicting, there was ample evidence to support the judgment rendered in the city court, except as to the rate of interest.</p> <p>4. It is erroneous to require the plaintiff in certiorari to pay the costs in the superior court when the judgment rendered by that court corrects, in his favor, a material error in the judgment of the court below.</p>

Equitable petition. Before Judge Sweat. Glynn superior court. December term, 1897.

<p>Indictment for forgery. Before Judge Henry. Chattooga superior court. July 11, 1898.</p>

Complaint. Before Judge Butt. Talbot superior court. March term 1898. The petition of Gibson against the Talbotton Railroad Company, filed February 18, 1895, was demurred to on the following grounds: (1) The petition and allegations are not paragraphed and numbered as required by the statute. (2) The cause of action set out is for salary upon contract, and not upon account. (3) The cause of action alleged, if any, would be upon •contract, and not subject-matter of account.

<p>Assumpsit. Before Judge Spence. Lee superior court. January 14, 1898.</p> <p>Mrs. Taylor executed a promissory note dated January 25, 1884, and due December 1, 1888, payable at the office of the Corbin Banking Company in New York City, to the order of J. K. O. Sherwood, for $6,000 principal, with interest at eight per cent, per annum from date, payable annually, as per five interest notes thereto attached, and interest on both the principal sum and the interest notes from maturity at the same rate. The principal note also provided for the payment of all cost of collection, including ten per cent, on principal and interest, as ■ attorney’s fees. She executed, as. security for the debt, a deed, of the same date, conveying certain land to Sherwood, the deed, reciting that it was made to secure a loan of $6,000 by the grantee to the grantor, under the- conditions of a certain bond. for reconveyance, and that the deed and the bond were executed “to conform to sections 1969, 1970, and 1971 of the Code of' Georgia.” A deed of the same date, conveying the same land to the American Freehold Land Mortgage Company of London Limited, subject to the right of Mrs. Taylor to a reconveyance of the same under the terms and conditions set out in the; bond of Sherwood to her, was executed by Sherwood; and the-notes were indorsed by him to that company. The principal and the interest from November 15; 1886, were not paid, and the mortgage company sued Mrs. Taylor for the same,, and for - ten per cent, thereon as attorney’s fees.</p> <p>The defendant pleaded: (a)- The notes- and the mortgage-were without consideration and void, because executed by the defendant to, the payee, Sherwood, who was then acting as the-agent of the Corbin Banking- Company, upon his promise and. undertaking that on these securities and on account of these-obligations the Corbin Banking Company would lend and pay to the defendant $4,700 in money, which they failed to do; on the contrary, Sherwood, the- Corbin Banking Company, or the > plaintiff (all of whom acted in concert in this transaction, and were parties thereto, directly or indirectly) paid $4,700 to one George Thomas, -and took from him a transfer of a judgment and execution from the superior court of Sumter county in favor of Thomas against Eleazar Taylor, defendant’s husband, on which there was apparently due that sum, and which was ■ wholly a debt of her husband, and not of herself, she having no liability for the same, nor any pecuniary interest therein, and the plaintiff now holds and controls the judgment and the execution, (b) The, notes were given upon a usurious con-sicleration, and except as to the sum of $4,700, and legal interest thereon, are void; for the defendant, at the instance and for the benefit of her husband solely, applied to the Corbin Banking Company, through its agent Sherwood, for a loan of money to pay off the debts of her husband, and executed the notes described in the declaration, and executed a mortgage on her individual property to secure the same; and only $4,700 was loaned on the same, there being thus reserved and taken for interest $1,300, besides ten per cent, additional as attorney’s fees, from January 25, 1884, to December 1, 1884, and eight per cent, per annum on the face of the note, from the date thereof, (c) Sherwood, the Corbin Banking Company, and the plaintiff were all parties to the transaction, which was for the benefit of the plaintiff, and was a scheme to evade the law as to usury. (cl) The notes and the papers to secure the same were made out in the State of New York, and were made payable in that State; and it was the intention of the parties that the contract, in so far as the payment of the principal and interest was concerned, should be governed by the laws of that State. Under the laws of New York at the time of the execution of the contract, a note bearing interest at a greater rate than six per cent, per annum was void. The taking of the deed to secure the note in the language and terms thereof, was-an effort to evade the usury laws of New York, (e) The notes were given under the influence and at the urgent solicitation of defendant’s husband, and against her will, and to pay the debt due by him to George W. Thomas; and it was known to all parties that the negotiations for the loan were for the purpose of ¡raying her husband’s debts. She did not receive any part of the money, but the Corbin Banking Company reserved $900 out of the principal, and the remainder was turned over to George W. Thomas in payment of judgments and notes which he held against her husband. This contract was illegal and void under the laws of Georgia. (/) The consideration of the notes has failed in this: that they were given under the promise that $6,000 in cash was to be paid to defendant; and after the negotiations were made, the plaintiff, through its agents, presented to her a receipt to sign for the $6,000, and she was induced to sign it by the false and fraudulent promises and representations of the plaintiff and its attorneys that upon signing it she would receive the money as indicated in the receipt; but she has never received any money or other property from plaintiff, its agents or attorneys, for the notes. Whatever money, if any, was realized from the notes was appropriated to the payment of her husband’s debt to Thomas, evidenced by judgments against him; and the judgments have never been turned over to her, and she is informed they were taken possession of by the plaintiff, and the plaintiff claims that they were transferred to it. She has never consented that the money'should be so applied, or that the notes should be devoted to such use, and the same, if done, was done without her knowledge-or consent, (y) The verdict and judgment in favor of George W. Thomas against Eleazar Taylor as defendant, and Clara E. Taylor as claimant, finding the property subjéct, were a fraudulent transaction to make defendant assume the debts of her husband. Her husband was able to pay his own debts, and his credit was good at the time the loan was made. It was a violation of the law of Georgia for her to mortgage or deed her separate estate as security to pay her husband’s debts, and the plaintiff knew this when the security was taken to pay her husband’s debts; and if part of the contract was illegal, all was illegal. The verdict finding the property subject, as above mentioned, being secured by fraud, has never been paid, and is barred by the statute of limitations. Plaintiff and the Corbin Banking Company have never been chartered or organized in the State of Georgia, and claim 'to have no agents in this State to loan money, and they could not have a Georgia contract and thereby evade the usury laws of New'York, where the contract was'made. The Corbin Banking Company reserved $900 of the principal sum of $6,000 in New York, and.since that time has been charging defendant usury on the $900 at eight per cent in New York, and when defendant paid this usury in New York it made the whole debt void. The amounts which the coupon notes call for were accumulated in New York at eight per cent., a usurious rate of interest, and were paid in New York at that rate, and were, made void, (h) The defendant agreed to pay the broker, John B. Felder, his commission, twenty per centón the amount of the loan, to procure the loan on mortgage, security, and the Corbin Banking Company received $900 of this twenty per cent. The plaintiff, or the person through whom the loan was obtained, knew of the agreement, and the mortgage is tainted with usury, though they may not have received any part of the commissions. (i) Plaintiff and theCorbin Banking Company were one and the same person; the Corbin Banking Company was really the agent and representative of the plaintiff, the commissions reserved were taken, by the plaintiff, and the contract purporting to make the Corbin Banking Company the agent of the defendant was a scheme to-evade the usury laws of both the State of New York and the State of Georgia; and the payment of $1,200' commissions was a reservation by plaintiff of that sum; and. as interest was charged against defendant on the entire sum,, the rate charged was usurious, and the note was void, under the laws of New York, the contract being a New York contract, (j) The charge of ten per cent, as attorney’s fees, sued for, is usurious, because plaintiff does not allow ten per cent. as;attorney’s fees, but contracts for a less sum, and yet demands-the-same with interest thereon from defendant. The collection of said ten per cent, for other purposes than as attorney’s, fees- is- without consideration, and in effect usurious.</p> <p>The court directed a verdict in favor- of the plaintiff for $6,-000 principal, $6,718.93 interest to November 6,1897, $1,271-.89 attorney’s fees, and costs. Defendant’s motion for a- new trial was overruled, and she excepted. The motion alleged, in addition to the general grounds, that the court erred, (a) In not allowing defendant’s counsel- to prove-by E. Taylor, that his-wife, the defendant, was not present at Lee court, March 13, 1883, when the verdict and judgment were rendered finding against her claim, which had been- filed and was pending in Lee superior court, to the lands embraced in the case at bar; that she did not know and had not heard that said verdict and judgment had been taken on said claim until since the pendency of this suit against her; and that there was no trial on the claim on which a verdict could he found subjecting the property, and any consent of witness or attorneys in said case to such verdict and judgment was without the knowledge, consent, authority, or acquiescence of defendant. It is contended that this evidence was relevant and material, because it was sought to conclude the defendant by such verdict and judgment, by showing that the property had been adjudicated as that of her husband and subject to the debt of G. W. Thomas levied thereon, when in fact she was ignorant of this, and therefore never recognized the claim of Thomas until, on the importunities of her husband, she borrowed the money to pay his execution to-Thomas; that is, if she was to be held bound about the Thomas-debt, it should be on her voluntary assumption of the same,, and not that she should be held concluded by such verdict and judgment, of which she was ignorant, never having had her day in court and not having heard of the same in time to have-the same set aside for the purposes of the case at bar. (b) In not allowing defendant’s counsel to prove by E. Taylor, that at-the time he gave Thomas the mortgage on the lands in Lee county, embraced in this suit and covered by the mortgage fi.. fa. introduced in evidence by the plaintiff, he stated to Thomas before giving the mortgage that the Lee county lands belonged to his wife and not to himself, that his wife’s money had paid for the lands, and that witness simply held paper title to the same; and Thomas remarked: “All right, he would risk it anyhow, as he already had a mortgage on the house and lot in Americus, which was good security for all the debt except the interest.” It is contended that this proof was pertinent, because the plaintiff, having taken to itself a transfer, as additional security to the deed made to it by the defendant, of the Thomas mortgage fi. fa., took the same with all the notice that Thomas had, and therefore plaintiff liad notice that the Thomas mortgage was invalid, (c) In not submitting to the jury the question of consideration in the transaction, it being the defendant’s contention that the plaintiff paid nothing to her nor for her benefit as a consideration for the papers sued on ;■ that the plaintiff instead invested the money in certain judgments against her husband; and that if the judgments were ever a lien on the lands, they are barred by the statute of limitations, and her land is discharged from the same, as well as the deed made by her to Sherwood.</p> <p>The motion further alleges, that there was undisputed evidence of usury in the contract sued on, it appearing from the testimony of E. Taylor and that of J. B.' Felder, the only witness for plaintiff, that the money which was received at Americus on these papers consisted in a check of the Corbin Banking Company for about $4,700, and that this was all that was received as a consideration for said papers, except the commissions of $1,200 which were reserved, and $900 of which was charged as premiums .by the Corbin Banking Company in the name of commissions, and $110 fire-insurance premium paid by J. B. Felder, it nowhere appearing in the evidence that the Corbin Banking Company received the money it sent to Americus from J. K. O. Sherwood, or the plaintiff, or from any one else, as the consideration of any loan made by any one else on these papers, or as the purchase-price from any one else for the same. Therefore the Corbin Banking Company sent its check for $4,700 as a part of the consideration of the loan, and haw ing charged $1,200 commissions for the loan, $900 of whicl, was for its own benefit and $3P0 of which was paid to its agent J. B. Felder, it is insisted that this transaction, under the evidence, is clearly usurious; and that instead of directing a verdict, the court should have submitted to the jury whether, under the facts, there was usury, in the transaction. Also, the court erred in not submitting to the jury the question as to whether the contract sued on was a New York or a Georgia contract, there being evidence from which they could and should have inferred that it was the intention of the parties to make the transaction a New York contract, especially so in the light of the printed instructions sent to defendant by plaintiff’s agent, who, notwithstanding it claimed to be only a broker or intermediary, still held for collection all of defendant’s papers, making strict requirements of her with, reference to the payment of the same at its office in New York and nowhere else, and pointing out the penalties for failure to do so. And that the court erred in not submitting to the jury the issue of usury in the contract, for the further reason that there was evidence from which the jury could and should have found that the Corbin Banking Company, while it claimed to be only a broker or intermediary, was really the agent of the plaintiff, because while the Corbin Banking Company reserved $900, called commissions, for itself, and $300 for J. B. Felder, its agent, which was claimed to be a simple commission for making the loan, still the papers were payable at and collectable through the Corbin„ Banking Company’s office only, in which matters the Corbin Banking Company was unquestionably the agent of the plaintiff, sending out circulars of instructions calling attention to the fact that the money due on the loan and interest coupons could be paid only at the Corbin Banking Company’s office, and that payments elsewhere or to any one else would not be recognized; and it is contended, that the fact of the agency being established for one purpose, it will be presumed to exist and continue through the entire transaction, and that therefore the commissions received by the Corbin Banking Company or its agents •for making this loan made the transaction usurious.</p>

<p>Equitable petition. Before Judge Smith. Montgomery-superior court. January 21, 1898.</p>

Petition for specific performance. Before Judge Smith. Dodge superior court. May 23, 1898. The evidence introduced by the plaintiff was, in substance, as follows: In June, 1892, the defendant bought at sheriff's sale a certain lot of wild land sold as the property of the plaintiff under an execution for State and county taxes.

<p>Complaint. Before Judge Smith. Telfair superior court. July 5, 1898.</p>

<p>Distress warrant. Before Judge Spence. Pulaski superior court. August term, 1898.</p>

Before Judge Smith. Telfaii superior court. August 1, 1898.' The wife brought a libel for divorce, on the ground of cruel treatment by the defendant in accusing her of having committed adultery. Pending this suit she applied for temporary alimony and counsel fees. She testified that she separated from the de fendant because of this accusation, and that the accusation was made to T. J. Smith, W. L.'Smith, John May, and others.

<p>Action on insurance policy. Before Judge- Sweat. Ware superior court. April <term, 1898.</p>

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

<p>.A writ of error does not lie, under the general rule as embodied in section 5526 of the Civil Code, unless the decision or judgment.complained of would have been a final disposition of the case, or final as to some material party thereto. The provision for fast bills of exceptions, as prescribed . in section 5540 of the Civil Code, is confined to the cases therein mentioned. 'There is no authority of law for suing out a writ of error to the refusal of •a judge of the superior court to order-a sale of property which had been .■levied on under an attachment, and application made under section 5463 ■ of the Civil Code to have the same sold, because, as alleged, the property '.levied on was of a perishable nature,or liable to deteriorate from keeping, or there was expense .attending the keeping of the same.;</p>

<p>Certiorari. Before Judge Smith. Dodge - superior court.. May 21, 1898.</p>

<p>Complaint. Before Judge Sweat. Glynn superior court.. March 1, 1898.</p>

<p>Complaint for land. Before Judge Sweat. Glynn superior court. December term, 1897.</p>

<p>Action for breach of warranty.' Before Judge Sweat. Wayne superior court. June 11, 1898.</p>

<p>Rule to distribute money. Before Judge Littlejohn. Macon ‘■ superior court. Septeinber 1, 1898.</p>

Affidavit to eject intruder. Before Judge Hansell. Dougherty superior court. April term, 1898. The east half of city lot number 79 was bought by Burks, and afterwards sold at sheriff’s sale as his property to Coffey.

<p>Action for damages. Before Judge Callaway. Greene supe- ■ rior court. February term, 1898.</p>

<p>Appeal. Before Judge Butt. Muscogee superior court. February 18, 1898.-</p> <p>An appeal from a justice’s court to the superior court was. not filed in the office of the clerk of the superior court until! May 8, three days before the term to which it was returnable,,. The appellee, when the case was called, moved to dismiss the-appeal, because the plaintiff’s attorney had, by having the; .papers out of the justice’s office from the time of appeal until May 8, caused the delay in filing and prevented the return of the papers within the time required by law. The appellanfe attorney stated .under oath that, sometime after the appeal was-, taken, he went to the justice and got the papers from him to-have a copy made, to avoid keeping them out of the office and-in case of loss to have a copy, and he handed them to his stenographer, directing him to “do so” and to return the original-, papers to the justice at once, and was sure such had been done,, and he did not know that the original papers were in his office- or custody 'until he found them on May 8; he then carried! •them at once to the justice and had him to send them to the; clerk of the superior court to be filed. He did not knowingly-cause the delay, nor induce or consent to it, but was anxious to proceed to a final adjudication of the case, and hence appealed to the superior court at once. He was ready to try the case, .and his defenses were meritorious.</p> <p>The court dismissed the appeal.</p>

<p>Ejectment. Before Judge Butt. Muscogee superior court.. May term, 1898.</p>

<p>1. To justify the admission of secondary evidence as to the-eontents of a lósfco deed, it must be shown not only that such a deed.once existed, but also that it was properly executed.</p> <p>2. Under the evidence in the present ease-there were questions which should . have.been determined by a jury, and-it was therefore error to direct a verdict.</p>

Action for damages. Before Judge Butt. Muscogee superior court. May term, 1898.. This suit was on account of'an expulsion of the plaintiff from a waiting-room provided by the railroad company for the accommodation of persons waiting to take passage upon its cars. There was a verdict for the plaintiff for $250. A motion for new trial was overruled, and the company excepted.

Complaint in trover. Before Judge Sweat. Ware superior •court. April term, 1898. The suit was against W. P. Lee and D. H. Lee, for 400 cords of wood, 1,200 cross-ties, and 1,600 rails.

<p>Petition for injunction. Before Judge Sweat. Glynn superior court. September 10, 1898.</p>

<p>Dispossessory warrant. Before Judge Hart. Wilkinson superior court. April term, 1898.</p>

<p>1. On the trial of a suit instituted by a corporation to foreclose a mortgage, the defendant is not a competent witness to testify in his own behalf of transactions or communications solely with the deceased agent of the coi’poration.</p> <p>2. The court erred in directing verdicts in these cases for the full amount sued for, it appearing that the evidexrce did not demand such a finding by the jury.</p>

<p>Action for false imprisonment. Before Judge Sweat. Ware superior court. November term, 1897.</p>

Injunction. Before Judge Sweat. Clinch superior court.. August 13, 1898. Petition by W. H. Mattox to restrain Baxter & Co. and Barrow from cutting and removing timber from certain lots of land, alleging that the right of the defendants to cut and remove the timber had expired by the terms of limitation in the leases under which they held.

<p>Accusation of gaming. Before Judge Hammond. City court of Griffin. October 13, 1898.</p>

<p>1. On the trial of one indicted for the illegai’saie of whisky, it was error for the court to charge the jury, in effect, that if the accused had agreed to sell and deliver to another a certain quantity of such liquor at a stated price, and while the accused was in the act of separating this quantity from a bulk of the same article in a barrel he was prevented from carrying out his intention by an officer of the law, and for this reason did not complete a delivery of the liquor, then the jury might infer a delivery of the goods agreed to be sold.</p> <p>2. The verdict of guilty in this case is contrary to the evidence; the testimony failing to show any sale of whisky as charged in the indictment.</p>

<p>"1. The evidence sustained the verdict of guilty.</p> <p>. 2. There was no error in overruling the motion for a new trial upon the ground of newly discovered évidence relating to the insanity of the accused, when the only testimony in support of such ground was the affidavits of witnesses that they had known the accused for a number of years, and had been for a long time, and-are now, of the opinion that he has been, is now, and was at the time of the killing, of unsound mind; it not appearing that any of the affiants were experts on the subject testified about, and no facts being related by them upon which their opinions were based.</p>

<p>1. Where in the trial of one charged with the offense of rape it appeared that the female alleged to have been ravished was over ten years of age, but of immature years, it was not error to charge, in effect, that the jury, in determining her capacity to consent to carnal.knowledge of her person, might consider her physical and mental development.</p> <p>2. .There being evidence to support the verdict and the trial judge being satisfied therewith, this court must affirm his judgment refusing a new trial. Lumpkin, P. J., and Little, J., dissenting.</p>

<p>Indictment for assault with intent to murder. Before Judge Hutchins. Gwinnett superior court. November 16, 1898.</p>

<p>Indictment for burglary. Before Judge Reese. Oglethorpe superior court. October term, 1898.</p>

<p>Indictment for arson. Before Judge Sweat. Wayne superior court. October 15, 1898.</p>

<p>Certiorari. Before Judge Smith. Irwin superior court. 'November term, 1898.</p>

<p>Section 929 of the Penal Code is mandatory in its provision prescribing the form of every indictment or accusation of a grand jury. An indictment, therefore, from which there has been entirely omitted the words prescribed in the form, “contrary to the laws of said State, the good order, peace, and dignity thereof,” is defective ; and a special demurrer thereto by the accused made on’ account of such defect before trial should be sustained, and the indictment quashed.</p>

<p>Indictment for seduction. Before Judge Hart. Putnám .superior court. September term, 1898.</p>

<p>The verdict not being without evidence to support it, and no error of law be- ' ing complained of, this court will not interfere with the discretion of the-trial judge in overruling the motion for a new trial.</p>

<p>Mandamus. Before Judge Sweat. Coffee superior court. ‘October 24, 1898.</p>

<p>1. Under the attendant circumstances, it was not error for the court, before an indictment was found against the prisoner, to appoint counsel tor his defense and at the same time to set a day for his trial.</p> <p>:2. The time to be allowed counsel to prepare for trial is in the sound discretion of the trial judge, which discretion will not be interfered with by.this court, unless abused. No unusual or intricate matters of law or fact appearing, and nothing being shown as to public excitement, there ' was no abuse of discretion in overruling the motion for -a continuance upon the grounds of want of time to prepare for trial and of public excitement.</p> <p>3. Where on a trial for murder it appeared that .the accused shot at K. but killed M., and the court charged sections 64 and 65 of the Penal Code, defining voluntary manslaughter, such charge was not misleading as having the effect of instructing the jury that to reduce the homicide from murder to manslaughter they must find that M. actually assaulted, or attempted to commit a serious personal injury on the accused; especially where the judge further charged, “that if the defendant did not intend to kill [M.], but [K.], if it would not have been murder had he killed [K.], then his killing [M.] would not have been murder,” and there was a verdict finding the accused guilty of murder.</p> <p>4. The evidence, if not the statement of the accused, demanded the verdict, and there was no error in refusing a new trial.</p>

Levy and claim. Before Judge Littlejohn. Lee superior ■court.

<p>Complaint on note. Before Judge Littlejohn. Sumter superior .court. August 2, 1898.</p>

Intervention. Before Judge Hansell. Lowndes superior court. April 29, 1898. Held: in its order authorizing a sale. Of said purchase-money I will pay $25,000 in cash, and the other $5,000 I agree to pay when the receivers of said company procure for me leases on 10,000 acres of timber, for which I am to pay in cash, at the time of the making of the various leases, one dollar per acre, and said sums to be paid for…

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

<p>' Complaint. Before Judge Reid. City court of Atlanta. February 16, 1898.</p>

<p>There is sufficient consideration to support an agreement to answer for the debt of another, when the creditor is thereby induced by the promisor to relinquish a valuable lien which he had acquired upon property to secure the original debt.</p> <p>2. A complaint which clearly sets forth such an undertaking to answer for, or guarantee the payment of the debt of a third person, is good, though it does not allege the promise to bS in writing; it not appearing from the plaintiff’s petition that the agreement was merely verbal.</p>

Complaint. Before Judge Lumpkin. Fulton superior court. March term, 1898. . The petition alleged: The defendant is indebted to the plaintiff $75 principal and $100 attorney’s fees. In the year 1895 defendant made a contract with plaintiff for the building of two elevators for the price of $1,143.75.

<p>- Indictment for rape. Before Judge Reese. Elbert superior court. . October 31, 1898.</p>

<p>Distress warrant. Bofore Judge Hansell. Dougherty superior court. April term, 1898.</p>

<p>A decree in chancery, when offered in evidence to prove collaterally that such decree was made, is admissible, although not accompanied with the record in the case. But when offered to establish any particular state of facts, or as an adjudication upon the subject-matter, such decree is only admissible in evidence when accompanied with a complete and duly authenticated copy of the proceedings in which such decree was rendered.</p>

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

<p>1. A motion for a continuance is addressed to the sound discretion of the presiding judge. It does not appear, in this case, that he abused such discretion in his refusal to continue the case.</p> <p>2. A ground of a motion for new trial, which is based on the admission of testimony contained in a letter which was admitted in evidence over the objection of defendant’s counsel, should set out, in words or substance, the contents of the letter objected to. Certainly when a letter is referred to as being contained in the approved brief of the testimony at the foot of page 76, and it appears that there is no such page of the brief, the exception made is not good, and can not be considered. This court will not pass on questions raised to the admissibility of evidence, when the identification of the evidence objected to is left uncertain.</p> <p>3. Where one voluntarily fires a loaded pistol at another, without excuse and not under circumstances of justification, and kills the person at whom he shot, the law will hold the slayer responsible for the consequences of his act It conclusively presumes malice on the part of the slayer; and the grade of the homicide, so committed, will not be reduced to involuntary manslaughter, even if the intent of the slayer, under such circumstances, was to wound or cripple the deceased, and not to kill.</p> <p>4. The verdict of guilty of murder in this case is fully supported by the evidence.</p>

Levy and claim. Before Judge Smith. Telfair superior court. April 18, 1898. An execution against W. T. Clements, founded upon a judgment rendered November 6,1895, was levied on land which was, claimed by his wife, on the ground that it had been set apart by the ordinary as a homestead for her and her family. Subsequently she amended by alleging that the land was her property individually, and not the property of W. T. Clements.

<p>Action for damages. Before Judge Sweat. Coffee superior court. March term, 1898.</p>

<p>Action for damages. Before Judge Berry. City court of Atlanta. May 13, 1898.</p>

<p>An action for slander does not, in this State, lie against a partnership.</p>

<p>1. Where to a suit upon a policy of fire-insurance the defense is interposed that at the time the policy was taken out by the insured he was not the owner of the property thereby covered, the burden of satisfactorily establishing this contention rests upon the defendant, notwithstanding it may be incumbent upon the plaintiff, in order to make out a prima facie case, to show that the property in question, alleged to have been destroyed by fire, belonged to him at the time the same was burned.</p> <p>2. An absolute and unconditional covenant of warranty by the insured, of the truth of certain representations made by him in a written application for insurance, is binding upon him irrespective of the question whether such representations were made in good faith or otherwise.</p> <p>3. It being a vital issue in the case whether or not the insured had complied with a stipulation in the policy requiring him to keep a set of books clearly and plainly presenting a complete record of the business transacted by him, it was error not to admit in evidence a letter received by the company from his attorney prior to the commencement of suit, which tended to show that at the trial the insured had assumed a position ap- ¡ parently inconsistent with a statement made in this letter as to certain facts material to this issue. Testimony as to the “usualness or unusualness” of a debtor himself keeping no books, but relying on a creditor to do so for him, was, however, properly rejected, not being pertinent to the issue presented; and. the same is true ap to an observation by an expert witness, in commenting upon the manner in which the books of the insured were kept, that, though probably going ‘ ‘ through fifty sets of books a year,” the witness had “never seen anything of that sort before.”</p> <p>4. -Though the agent who wrote the policy had at the time full information regarding the method of bookkeeping pursued by the insured, the mere fact that such agent then failed to raise any objection thereto would not amount to a waiver by the company of its right to insist that the insured should comply with his express covenant, entered into when he accepted the policy, to thereafter keep such a set of books as was therein specified ; nor, under such circumstances, would the company be estopped from setting up the defense that the insured had failed to comply with his covenant, if, upon being called upon to indemnify him for a loss, this fact came to the knowledge of the company.</p> <p>5. It does not follow that, because evidence introduced in behalf of a plaintiff be strong enough to withstand a motion for a nonsuit, it is not within the power of the trial judge, if dissatisfied with a verdict based upon such evidence, to grant the losing party a new trial. Certainly it is true that a judgment sustaining a motion for a new trial, though based specifically upon a single ground thereof whether meritorious or not, should not be set aside if it affirmatively appears that, for any reason assigned by the movant in other grounds of his motion, it would have been reversible error to overrule the same.</p> <p>6. Under the facts of the present case, the court was not authorized to give in charge to the jury any instructions whatsoever with regard to the assessment of damages and attorney’s fees against the defendant company.</p> <p>•7. The defendant having failed to establish its contention that the insured, iij. computing his loss, had endeavored to perpetrate a fraud upon the defendant, the trial judge properly refused to submit this defense to the jury. Nor was any error committed in rejecting a memorandum, alleged to have been made by an expert bookkeeper, which was offered by the defendant as “documentary evidence” in support of its contention that the proofs of loss submitted by the insured were unreliable and incorrect.</p>

<p>1. In no view of the facts and circumstances brought to light upon the trial of this case can it be fairly said, either that the defendant insurance company waived, or that it was estopped to set up in its defense, a violation of an express stipulation in the policy issued to the insured, to the effect that the same should become void in the event he should thereafter, without first procuring the company’s written consent to be indorsed upon or attached to the policy, take out additional insurance covering in whole or in part the same risk. This being so, the trial judge erred in instructing the jury, in substance, that should they believe the testimony-relied on by the plaintiff in this connection, it would be their duty to find against this particular defense interposed by the company.</p> <p>2. Further error was committed in eliminating from the consideration of the jury the additional defense set up by the defendant, that at the time th$ policy sued on was issued to the insured he was not the owner of the property therein specified.</p> <p>3. As to all other questions raised by the company’s motion for a new trial, this case is controlled by the decision this day rendered in Morris v. Imperial Insurance Co.</p>

Complaint. Before F. H. Burch, judge pro hac vice. Dodge superior court. March term, 1898. Thompson & McAlister bought fertilizers from the Baldwin Fertilizer Company, for which they gave their promissory note; and sold a part of the fertilizers to farmers whose notes they took for the same, payable to the company.

<p>A. written communication referring to an account upon which the writer had been sued,, and which was barred by the statute of limitations, will not, unless it contains a promise to pay, or an acknowledgment of liability, relieve the account from the bar of the statute ; and this is true though such communication with reasonable certainty identifies the account in question as that upon which the action was brought.</p>

<p>Complaint. Before Judge Parker. City court of Baxley. April 22, 1898.</p>

<p>1. Prior to the practice act of 1895 (Civil Code, §5055), when an equitable petition expressly waived discovery, an answer to the same was not required to be verified by affidavit although the petition was so verified.</p> <p>2. Before a judgment dismissing a case or striking an answer can be entered for failure to produce documents called for in a notice to produce, it must appear that there was a peremptory order of court requiring the production of the papers described in the notice, and a failure to comply with such order.</p> <p>3. Where a petition prayed for an injunction against the defendant to restrain him from exercising a power of sale in a deed given by the plaintiff to secure the payment of promissory notes, an answer of the defendant, in the nature of a cross-bill, which prayed for a general judgment on the notes and a judgment setting up a special lien on the land, contained matter germane to that set up in the original petition.</p> <p>4. The dismissal of such a petition did not carry ‘that part of the answer which was in the nature of a cross-bill with it; nor did the fact that the relief sought therein was not of an equitable nature require its dismissal.</p> <p>5. Such an answer would remain in court for determination, notwithstanding the person who filed the petition was a resident of another county than that in which the suit was pending.</p> <p>6. When the grantor in a security-deed containing a power of sale attempts to obstruct the sale made under such power, refuses to surrender possession to the grantee, who is the purchaser, and in every way attacks and impeaches the validity of the sale, he will not, when the grantee abandons all rights under the sale and brings suit on the debt, be allowed to set up as a defense that a sale was had under the power contained in the deed.</p> <p>7. The evidence warranted a finding in favor of the defendant for the amounts for which judgment was finally rendered after the excess in the verdict had been written off under order of the court. The court committed no error in the case.</p>

<p>1. There were sufficient allegations in the original petition to authorize the amendment proposed by petitioner in this case; and the same being germane to the issue and adding no new cause of action, the court did not err in overruling the defendants’ objection thereto.</p> <p>2. When an amendment has been made to pleadings, the opposite party is not entitled to a continuance, when he fails to show that he is less prepared for trial than he would have been had such amendment not been made.</p> <p>3. Where land is sold and notes are given for-a part of the purchase-money, with the agreement between the vendor and the vendee that the former shall have a lien upon the land for the amount of such purchase-money notes until the same are paid; and where such agreement is recited and recognized both in the deed from the vendor and in the notes given at the same time by the vendee, a valid equitable lien or mortgage is thereby created upon the property in favor of the vendor and his assigns.</p> <p>(a) One who asserts title to the property by a subsequent conveyance from such vendee, which refers to the foregoing deed for “all necessary purposes,” is chargeable in law with notice of the existence of such lien, and acquires the land subject to the equity of the original vendor and his assigns.</p>

<p>Complaint. Before Judge, Reid. City court of Atlanta. April 2,1898.</p>

<p>Complaint. Before Judge Berry. City court of Atlanta. May 28, 1898.</p>

<p>' Complaint. Before Judge Reid. City court of Atlanta. July term, 1898.</p>

<p>In view of the evidence appearing in the record, there was no abuse of discretion in granting the motion to reinstate this case.</p>

<p>1. Upon the trial of a suit against the representative of a deceased party upon an account embracing items for services rendered, and for board and rent of room furnished by plaintiffs to deceased, it is not error to permit one of the plaintiffs to testify that they operated a boarding-house during the time named in the account, when it appears that such fact in nowise involved any transaction or communication had by plaintiffs with deceased.</p> <p>2. On such a trial it is error for the court to charge the jury, “ that if services were rendered by any one, a stranger to the suit or a sister of the plaintiffs, even though they were not hired servants and were not compensated by the plaintiffs, and although they claimed nothing as compensation from either the deceased or the plaintiffs, that if such services ; were rendered by such person at plaintiffs’ request, they could recover” ; it not appearing that the deceased was any party or privy to such an understanding had between the plaintiffs and their sister, and thetestimony showing that the services rendered by the lattej were merely gratuitous.</p> <p>3. The testimony did not require, even if it authorized, the verdict of the jury, independently of the above charge; and there being strong reason to infer that this error of the judge influenced the jury to the' injury of the plaintiff in error, the judgment overruling the motion for a new trial is reversed.</p>

<p>Exceptions to auditor’s report. Before Judge Lumpkin.. Fulton superior court. March term, 1898.</p>

<p>Following the decision of this'court in the case of Bay v. State, 63 Oa. 667, the evidence which was offered by the State and admitted, showing that the. accused, while not under legal arrest, had been compelled to put his hand in his pocket and surrender a pistol, thus disclosing that he was violating the law, was not admissible on the trial of such person for the offense of carrying a concealed weapon, alleged to have been committed on that occasion.</p>

<p>1. Inasmuch as an appeal, though entered by one only of two or more joint defendants against whom a judgment had been rendered, brings up the whole record, requires a de novo investigation, and entitles all the parties “to be heard on the whole merits of the'case,”, and as all are bound by the result, it follows that a defendant, though not joining in the appeal, may in the court appealed to make any timely and appropriate amendment to a plea or answer already entered.</p> <p>2. Where an appeal was entered in a pending case in the year 1892, the right to file in the court appealed to an amendment to an answer was not affected by the passage of either the pleading act of 1893 or the practice act of 1895; and this is true although the trial in that court was had in the year 1898.</p> <p>3. The evidence being conflicting and such as wouldfhave warranted a finding either way upon the only issue contested in the case, the court erred in directing a verdict.</p>

<p>Complaint. Before Judge Smith. Dodge superior court. April term, 1898.</p>

^Equitable petition. Before Judge Sweat. Glynn superior 'court. May term, 1898.

<p>1. Apparently the auditor, to whom this case was referred for the purpose of determining how a loss by fire should be adjusted as between the insured and each of several insurers, correctly found that an application for insurance presented by the insured to one of the insurers was not specific as to the precise property sought to be insured. But whether this be true or not, it affirmatively appears that no substantial right of the party complaining of this ruling was prejudiced thereby.</p> <p>2. When a memorandum of a contract for additional insurance is endorsed upon a policy previously issued, the stipulations therein contained, in so far as the same may be applicable, are to be treated as constituting the basis of the new contract.</p> <p>(а) In the present case, the endorsement contemplated additional insurance-which should cover the entire interest of the insured in the property specified, not merely a three-fifths interest .therein, which was the extent, of the risk originally assumed.</p> <p>(б) Even if error was committed in admitting parol evidence offered to show the intention of the contracting parties, no injury thereby resulted to the insurer.</p> <p>S. One of the insurance companies being, in any event, liable to pay in full the amount expressed in its contract, the mere fact that the auditor estimated the value of the property destroyed upon an erroneous basis affords-to this company no just cause of complaint.</p> <p>4. Under the express provisions of what is commonly known as “the American clause,” though it be contained in an “open ” policy not immediately attaching to any specific risk, the date to be looked to in determining whether concurrent insurance is prior or subsequent “in day of date to this policy” is, not that upon which the policy attached to a specific risk, but that upon which the policy was issued</p> <p>5. An insurer in no way interested in an adjustment made between the insured and a subsequent insurer is not in a position to question the correctness thereof.</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court. February 24, 1898.</p>

<p>1. That part of the pleading act of 1895 (Civil Code, §5069 et seq.) which-deals with the subject,.of defaults relates merely to simple defaults, and has no application to final judgments, whether they be rendered by the-court or entered up on verdicts in cases “in default.”</p> <p>2. A judgment will not be vacated at the instance of the defendant upon the-ground that the plaintiff, prior to the judgment and in consideration of the settlement of his cause of action, verbally agreed to dismiss his suit, and for this reason the defendant failed to appear and plead at the proper-time, where the plaintiff denies such settlement and agreement.</p>

<p>Where summons of garnishment is based upon a suit in which the court-acquires no jurisdiction to render a judgment against the principal defendant, the garnishee can not relieve himself of liability to the defendant by paying the amount of a debt which he owes him into such court.</p>

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

<p>1. Where the judge has substantially charged the law as embodied in the Civil Code on the subject of admissions, it is not error for him to omit to add in the same connection that admissions, when established to the sat- ■ isfaction of the jury, constitute a high degree of evidence and should be entitled to great weight.</p> <p>2. In the trial of a suit by an employee against a railroad company, when the judge has correctly'instructed the jury on the subject of the burden of proof in the case, and as to what facts will raise a presumption of liability against the company, it is not error to omit to charge in the same connection the law on the subject of defendant’s theory that the injury was a mere accident. It is sufficient if the law bearing on such theory is elsewhere properly given by the judge in his charge.</p> <p>■3. Even if it is, in any case, proper for the judge to submit to the jury, trying an action by an employee against a master for personal injuries, the question whether a given rule prescribed by the former for governing the conduct of the latter in the performance of his work is reasonable or unreasonable, the judge should certainly not do so when the evidence fails to show the existence and terms of the alleged rule with sufficient certainty and clearness to enable the jury to intelligently pass upon the same. When, however, the defense in such a case rested upon the proposition that the plaintiff had violated a rule of the master and in consequence had received the injuries complained of, it was incumbent on the defendant to show the existence and contents of the alleged rule, and failing to do so, the latter could not have been injured by an instruction of the nature above indicated, and giving the same is not, therefore, cause for a new trial.</p> <p>4. The verdict was not contrary to the evidence.</p>

<p>1. Where a suit was brought in the court below by several persons, as the beneficiaries of a homestead, for the recovery of the alleged homestead property, and, after a judgment against them, a bill of exceptions was taken in the name of one of them only, and the names of the others appear in tbe record, the names of the plaintiffs omitted in the bill of exceptions may be inserted therein by an amendment thereto in this court, as plaintiffs in error.</p> <p>2. The statutory homestead, or exemption, provided for in sections 2866 et seq. of the Civil Code, can not be taken in property which does not belong to the head of a family. A wife, living with her husband and children, is not the head of a family, and hence she is not entitled, under the provisions of these sections of the Code, to have property the title to which is in herself exempted from levy and sale, for the benefit of herself and minor children.</p> <p>'3, No amendment to the original schedule can give vitality to a statutory homestead which is absolutely void.</p> <p>(«) One not the head of a family, but who has the care and support of dependent females, is not entitled to such a homestead.</p>

<p>The right of a wife, under sections 2040 et seq. of the Code of 1873 (Civil Code, $2866 et seq.), to have a homestead set apart out of her husband’s property depends upon his refusal to do so. A schedule filed by her for this purpose, in which it was merely alleged that he neglected or refused to file the same, does not,unequivocally show a refusal on his part; and consequently a homestead purporting to have been thus set apart was not valid as against one to whom the husband subsequently conveyed the land embraced therein. .</p>

<p>A.purchased land from B., and as part of the consideration therefor gave a due-bill for $100 to C., a creditor of B. The purchase was made subject to taxes and a certain claim which was secured by deed to the land. The property was afterwards sold under power of sale embodied in this deed and did not bring the amount of that claim. Held, that a plea of failure of consideration, based upon the fraudulent conduct of B. in not apprising A. of other claims against the property, is not a sufficient defense in an action by C. against A. upon the due-bill.</p>

<p>1. Where a copy of a petition to revive a dormant judgment, but no copy of the scire facias issued thereon, is served upon the defendant, and he subsequently ascertains that an order has been passed by the court reviving the judgment, his knowledge of the existence of the order of revival is not inconsistent with ignorance on his part of an entry, by the proper officer, of service of the scire facias.</p> <p>2. The evidence introduced by the movant being sufficient to have sustained a verdict in favor of the traverse, the court erred in directing the jury to find against it and in favor of the officer’s return of service.</p>

<p>When the lien of a materialman has, under the terms of the statute, become fixed and secured, such lien is then a vested right; and no subsequent repeal or modification of the act under which it became fixed can destroy or modify such right.</p>

<p>1. A power of sale in a mortgage given to secure a debt in part usurious maybe exercised at least to the extent of collecting the principal with lawful interest; certainly so when it is exercised with the acquiescence of the mortgagor.</p> <p>.2. When such a mortgage secures a debt maturing by instalments, and the parties by a written agreement substitute a new amount for the total indebtedness, which relieves the transaction of usury, and fix the time for ■its payment on a given day, if payment be not then made the power of sale may be exercised.</p> <p>3. Where such power authorizes the mortgagee to convey the premises to the purchaser as attorney in fact for the mortgagor, but the mortgagee conveys in his own name, it does not pass a legal title, but, if in other respects properly executed, passes an equitable title which constitutes a good defense, so far as damage to the freehold is concerned, to an action brought by the wife of the mortgagor, whose sole interest in the property is under a voluntary conveyance from her husband made after the execution of the mortgage.</p> <p>4. In view of the evidence in the record, there was no abuse of discretion in granting a second new trial.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. May term, 1898.</p>

<p>Complaint for land. Before Judge Henry. Floyd superior •court. September 3, 1897.</p>

Indictment for murder. Before Judge Hutchins. Gwinnett superior court. September term, 1898. The accused was charged with the murder of James Coker, and was found guilty of voluntary manslaughter. According to the evidence for the State, Coker, together with Lewis McDaniel and John and Luther Wages, went to the house of the accused at night, and proposed to buy a thicken and have it cooked there.

Indictment for murder. Before Judge Kimsey. Habersham superior court. September term, 1898. Pink Dill was charged with the murder of William Manus, and was found guilty of voluntary‘manslaughter. His motion for a new trial was overruled, and he excepted. The opinion states the other material facts.

<p>Suddenly snatching a purse, with intent to steal the same, from the hand of another, without using intimidation, and where there is no resistance by the owner or injury to his person, does not constitute robbery.</p>

<p>1. Without the preliminary sanction óf a popular vote as required by the constitution, a municipal corporation can not contract for a supply of water, on the credit of the city, for a longer period than one year; and a contract which by its terms is to run for twenty years, each year’s supply to be paid for semi-annually from year to year, is operative from year to year so long as neither party renounces or repudiates it. Cartersville Improvement Co. v. Cartersville, 89 Ga. 683; Cartersville Water Co. v. Cartersville, 89 Ga. 689; Lewis v. Lofley, 92 Ga. 804; Habersham County v. Porter Mfg. Co., 103 Ga. 613, followed and approved. Spann v. Webster County, 64 Ga. 498; Cabaniss v. Hill, 74 Ga. 845, overruled in part. .</p> <p>2. Is it not absolutely essential to the validity of an election held under that provision of the constitution of this State which declares that “No . . municipality . . shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per centum of the assessed value of the taxable property therein, without the assent of two thirds of the qualified voters thereof, at an election for that purpose, to be held as may be prescribed by law,” that there should be an act of the Generál Assembly prescribing the manner of such election?</p> <p>3. The manner of holding such election, where the debt to be incurred is a bonded debt, is prescribed in section 377 et seq. of the Political Code.</p> <p>4. There is no general law of this State prescribing the manner of holding elections where the debt proposed to be incurred is not a bonded indebtedness ; nor is there any local law expressly authorizing the City Council of Dawson to prescribe the method of holding such election.</p> <p>5. Even if no legislation is necessary to authorize a municipal corporation to hold an election to determine whether a debt other than a bonded indebtedness shall be incurred, an election held pursuant to an ordinance and notice which does not state the amount of the debt to be incurred will not be sufficient to authorize the execution of a contract incurring an indebtedness.</p> <p>■6. Where one enters with a municipal corporation into a contract which is void because opposed to the constitution and laws of this State and contrary to its settled public policy, complete performance of such contract on the part of such person will not prevent the municipal corporation from pleading its want of power or the illegality of the contract.</p> <p>7. There is nothing in the decision of this case when it was here before, in conflict with the rulings now made.</p> <p>■8. The City Council of Dawson has a right to make a contract to supply tliej city with water for one year, provided they have in the treasury of the city a sum sufficient to pay therefor, which may be lawfully appropriated for that purpose, or if such sum can be secured by lawful taxation levied during the year in which the contract is made. While a contract for a longer space of time is illegal, yet where the other parties to such a contract have complied with their part by erecting a plant at great expense in order to furnish the city with water, the city is liable for the amount stipulated in the contract for each year that it received the benefits thereof.</p> <p>8. The evidence being conflicting as to whether during the year for which compensation is claimed by the water company for water furnished to the city the latter received the benefit to be derived under the contract in such a way as to make it liable to pay the annual rental stipulated therein, the case should have been submitted to a jury under proper instructions, and it was error to direct a verdict for the plaintiff.</p> <p>Simmons, C. J., concurring specially.</p>

<p>When material evidence, not merely cumulative or impeaching in its character, but relating to new and important facts, is discovered after a trial, and it appears that the failure to discover it before trial was not due to a want of diligence, and when the nature of the newly discovered evidence is such that it might, on another hearing, produce a different verdict, a motion for a new trial, based on the ground of such newly discovered evidence, should be granted.</p>

<p>Action for damages. Before Judge Candler. DeKalb superior court. February term, 1898.</p>

<p>Complaint. Before Judge Candler. DeKalb superior court. February term, 1898.</p>

<p>Complaint for land. Before Judge Candler. DeKalb superior court. February term, 1898.</p>

<p>A new guardian can not be lawfully appointed as the successor of a guardian in office until after a revocation of the latter’s letters. An alleged appointment of a new guardian purporting to have been made without such revocation does not confer upon the appointee the right to cite the old guardian to a settlement of his accounts.</p>

<p>Foreclosure of lien. Before Judge Gamble. Jefferson superior court. May term, 1898.</p>

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

<p>Equitable petition. Before Judge Falligant. Chatham superior court. April 28,' 1898.</p>

<p>1. It is not essential to the validity of an indictment for murder that it should allege upon what portion of the body of the deceased the mortal wound was inflicted; nor, when the indictment charges that the homicide was committed by beating the deceased with a piece of iron, is it necessary to specifically set forth the size or weight of the same.</p> <p>2. It follows that the location and character of a wound by which a death was caused, and the nature of the weapon by which such wound was inflicted, may be proved on the trial of an indictment for murder, lacking in allegations of the kind above indicated.</p> <p>3. It is not competent for a witness who had acted as the amanuensis of an illiterate person in writing letters to the latter’s wife to testify that they were affectionate in character, and thereupon state his belief, derived from a knowledge of the contents of such letters, that the husband was passionately fond of the wife.</p> <p>4. A trial judge, in passing upon grounds of a motion for a new trial with a view to correcting and then verifying the same, may, without impropriety, act upon a written statement of facts prepared by the solicitor-general, if satisfied that the same is true and that it fully and fairly sets forth what occurred at the trial with reference to the matter in question.</p> <p>5. A new trial will not be granted in a criminal case because of alleged error “in not cautioning and instructing the jury, and thereby counterbalancing the evil effect of” improper remarks made by the solicitor-general in his argument before the jury, it not appearing that any request to charge on this subject was presented or any ruling of the court invoked with reference thereto, and the remarks themselves having little or no bearing j upon the merits of the case, but really amounting to no more than a refutation by the solicitor-general of an attack upon his official integrity, made by counsel for the accused.</p> <p><8. That the court, in a trial for murder, allowed a witness for the State to testify: “I met [the accused] about a week before he killed his wife. He said he had been in jail thirty days and'had got out again,” and then ruled out this testimony, did not have the effect of putting the general character of the accused in issue.</p> <p>7. The evidence fully warranted the verdict.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. March term, 1898.</p>

<p>1. A deed executed in 1858, conveying certain described property to C. in trust for the sole and separate use of M. G. H., the grantor’s wife, for and during her natural life, and at her death to her children the issue of the existing marriage between her and the grantor, said children to share equally in the same, vested in the trustee named title to the life-estate only, and not to the estate in remainder.</p> <p>2. Such a deed is in proper custody when held by the wife, and the fact that after the death of the grantor the instrument was found in a trunk which contained papers both of the grantor and the life-tenant, does not rebut the presumption of delivery raised by the due record of the instrument.</p>

<p>1. In the trial of a suit against a railroad company for .the negligent killing of stock by the running of a train, evidence tending to establish that the stock were at large through no fault of the plaintiff was admissible.</p> <p>2. When in such a trial the evidence was that the stock killed had been a part of a car-load of stock which had been transported by the defendant company, and tended to establish that the stock being at large was due to the fact that the defendant had failed to provide a stock-pen and other proper facilities for unloading stock, it was the duty of the court, without any request to that effect, to have instructed the jury that the escape of the mules under these circumstances would not of itself make the defendant liable in damages for the subsequent killing of the mules; and that-the defendant would not be liable if at the time of the killing its agents and employees exercised all ordinary care and diligence to prevent the same. The rule here stated was essentially a part of the law of the case, an understanding of which by the jury was necessary to a fair and lawful trial.</p>

<p>Equitable petition. Before Judge Gamble. Jefferson superior court. May term, 1898. ,</p>

<p>All fines imposed by a judge of the county court upon persons convicted of a violation of tlie laws of this State are required to be paid over to the, county treasurer; and this is true whether the conviction is had upon an accusation in the county court, or upon an indictment or presentment found in the superior court and transferred to the county court for trial. The county judge has no authority to pay any part of such fines either to tlie officers of his own court or the officers of the superior court in payment of their insolvent costs accruing in his court.</p>

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

<p>1. The evidence warranted the auditor in finding that the estate of the defendant’s testator was not entitled to any credit upon the item for professional services set up in defense to the plaintiffs’ action; and there was no error in charging against such estate the amount alleged to have been retained for attorneys’ fees, with interest from the time such amount was appropriated by the deceased.</p> <p>(a) Can an executor, who is an attorney at law, charge the estate which he represents with the value of professional services rendered by him to the estate, unless the same be allowed by the ordinary as “extra compensation” for “extraordinary services” ?</p> <p>2. Even if in any case where legatees under a will resort to a court of equity for the settlement of an estate such court can relieve an executor from a forfeiture of commissions growing out of a failure to make returns, there' was no error in the present case in refusing to exercise this power.</p> <p>S. It being within “the province of the judge to determine upon whom the costs shall fall” in an equity case, the exercise of this power will not be controlled unless it is manifest that it has been abused. There was no error in the present case in requiring each of the parties to pay one half of the auditor’s fee, nor in requiring the defendant to pay all other costs.</p> <p>4. There was sufficient evidence before the auditor to authorize a finding in favor of the plaintiffs on all of the items which he allowed them. While in some instances the evidence was conflicting and in others not very strong, this court will not control the discretion of the trial judge in refusing to allow any of the exceptions of fact. There was no ruling by the judge on any of the exceptions of law which would require a reversal of the judgment.</p> <p>5. When all of the exceptions of law and fact were dismissed, a decree should have been rendered without a verdict of a jury; but the rendition of the verdict, though improper, will not require a reversal o! the judgment. The judge intended that the verdict and decree should be entered in accordance with the auditor’s report; and while it appears from the record that the decree does not exactly conform thereto, the judgment is affirmed, with direction that the verdict and decree be amended so as to conform to the auditor’s report. As this could have been done in the superior court by a simple motion, and it was not necessary to bring the case to this court for this purpose, the costs of bringing the main bill of exceptions here will not be taxed against the defendants in error.</p>

<p>1. When an action by an employee against a railroad company, to recover-damages for a personal injury inflicted by the company through its-agents while he was in its employ, is tried in a different State from that in which the contract of employment was made and in which the injury was received, the right of the plaintiff to recover, and the rule as to what. ’ conduct on his part shall or shall not constitute a defense to the action,, are governed by the lex loci and not by the lex fori.</p> <p>(a) Under the constitution of the State of South Carolina, “ knowledge by any employee injured, of the defective or unsafe character or condition of any machinery, ways or appliances, shall be no defense to an action, for injury caused thereby, except as to conductors or engineers in charge-of dangerous-or unsafe cars or engines voluntarily operated by them.” Therefore, on the trial of a suit in the courts of this State, instituted by a coupler or brakeman against a railroad company, to recover damages for an injury sustained by him while in its service in the State of South Carolina, alleged to have been occasioned because of its negligence in furnishing him with unsafe and defective machinery, it was not error for the court to give in charge to the jury the above-quoted portion of the fundamental law of South. Carolina on the subject.</p> <p>2. The charge of the court fully and fairly covered the issues in the case, and if there was any error at all in omitting to charge any of the requests presented by counsel for the defendant, such error was immaterial and harmless. The verdict was not without evidenqe to support it, and accordingly this court will not interfere with the discretion of the trial judge refusing to grant a new trial.</p>

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

<p>Foreclosure of mortgage. Before Judge Falligant. Chat-ham superior court. January 31, 1898.</p>

<p>Motion to distribute money. Before Judge Falligant. Chat-ham superior, court. July 12, 1898.</p> <p>Mrs. Mami as executrix of W. G. Mann filed her motion, praying that two thirds of certain dividends, arising from stock which had come under the administration of the court in a proceeding for direction, be turned over to her as the representative of the life-tenant of the stock; the other parties to the motion being or representing the remaindermen of the trust estate of which W. G. Mann was the life-tenant. He died on November 20, 1896. The trust estate had been fully distributed, with the exception of $512.88 cash, made up of semi-annual dividends of three and a half per cent, on 349 shares of stock of the Savannah Gas Light Co., and of two and a half per cent, on 83 shares of stock of the Southwestern Railroad Co.; each of which dividends was declared on January 1, 1897, from the earnings of those companies for the six months previous. On April 1, 1885, the Savannah Gas Light Co. had leased all its property to the Mutual Gas Light Co., for twenty years, at a yearly rental of $10,000 for the first four years, $20,000 for the second four, and $24,000 for the last twelve, payable quarterly. The capital stock of the lessor company is $400,000, and the par value of its shares $25. Said semi-annual dividend is based partly upon the rent received under said lease, and partly upon the income from a surplus fund. The dividend varies, and is payable only when declared by the directors. The business of furnishing gas is carried on, not by the Savannah Gas - Light Company, but by its lessee. On October 17, 1895, the Southwestern Railroad Co. had leased its railroad and appurtenances to the Central of Georgia Railway Co., for 101 years, the lease covenanting that the lessee should pay to the lessor five per cent, upon the amount of the capital stock of the lessor then outstanding, payments to be made semi-annually on the first of January and July. The dividend is payable only when declared by the directors of the Southwestern Railroad Company. It was further stipulated in the railroad lease, that the lessee company should pay in addition an amount to pay the salaries of the president and of the secretary and treasurer of the lessor during the continuance of the lease, not to exceed $2,500 in any one year, and should further pay for all necessary stock, account, and transfer books, stationery, and offices for s;u officers, and all necessary expenses connected with the the stock of the lessor, the’ advertisement and payment of its dividends, and the meetings-of its board of directors and stockholders; and that the lessee should pay the current expenses incident to the working and management of the railroad, all debts and claims against the lessor which might be created by any action of the lessee, all taxes, damages to persons and property, and all claims arising-from anything done while being operated under the lease, and. should deliver up the railroad in the same good order and condition as when received. The gas-light lease stipulates that the lessee will keep the property in repair, and at the expiration of the lease will deliver it up. in the same good order and condition as when leased. For the other facts see the opinion.</p>

<p>Action for damages. Before Judge Beck. Henry superior court. January 20, 1898.</p>

<p>1. The burden of showing that the expulsion of a person from a passenger-car was lawful does not devolve upon a railway company until it be shown that this person was rightfully in the car.</p> <p>2. When the purchaser of a reduced-rate excursion railway-ticket, by signing a special contract thereon, agrees with the company issuing the ticket that “it shall not begood for returning passage unlessthe holder identifies himself . . as the original purchaser to the satisfaction of” a designated agent of the company in the town or city to which the purchaser is to be transported on his “going passage,” that “ when officially signed and stamped by said agent, this ticket shall then be good for return passage,” and that “the holder will identify himself . . as the original purchaser of this ticket by writing his . . name or by other means, if necessary, when required by conductor or agents,” it is incumbent upon such purchaser, as a condition precedent to having the ticket so signed and stamped, to-furnish such proof of his identity and of the fact that he was the original purchaser as would be sufficient to satisfy a reasonable man. Under such a contract, the validating agent is entitled to call for other proof of identity than that afforded by the holder’s writing his name.</p> <p>8. It was, on the trial of a case involving the determination of the question whether or not there had been due compliance with the terms of such a contract, erroneous to instruct the jury that if the proof furnished to the validating agent by the ticket-holder as to his identity, etc., was satisfactory to them, he was entitled to have the ticket validated.</p> <p>4. It was, in such a trial, also erroneous to give in charge to the jury language authorizing them to infer that if the ticket-holder produced to the validating agent evidence sufficient to show that the former “was the man he represented himself to be,” this would identify him as the original purchaser of the ticket.</p> <p>5. When, in such a trial, it was apparent that the manner in which the purchaser’s name was written at the time of obtaining the ticket was peculiar and unusual, and therefore a matter of much consequence upon the question of identification at the time the ticket was presented for validation, it was erroneous to charge that “if the plaintiff signed said ticket in the presence of the validating officer, it is immaterial as to the-nature and character of this signature.”</p> <p>6. The court o.ught not, in such a trial, to have given a charge to the effect that if the validating agent refused to sign and stamp the ticket and the-holder boarded a train, tendered the ticket to the conductor, identified himself as the man he represented himself to be and as the original purchaser of the ticket, at the same time informing the conductor that the-ticket had been offeredforvalidation, and the conductor thereupon refused to accept the ticket and ejected the holder, he was entitled to recover.</p> <p>7. If the purchaser of such a ticket at the time of buying the same intentionally adopted as the method of signing his name the making of the. letters thereof in the form of printed characters, and thus rendered it impossible to identify himself as the original purchaser by reproducing his signature, the burden was on him to find other means of satisfactory identification. Merely proving by witnesses that his name was the same-as that “printed” upon the ticket would not, in every case and under all circumstances, be sufficient or satisfactory proof that he was the original purchaser.</p>

<p>1. A lessee from the grantor in a security-deed, which has been duly filed 'and recorded, can be dispossessed in a summary way by the sheriff for the purpose of placing in possession a purchaser of the property at a sale -had under a judgment setting up a special lien upon the same, rendered 'in a suit by the creditor on the debt secured by such deed, notwithstanding the lease may be older than the judgment under which the sale was had.</p> <p>2. A duly filed and recorded deed, which plainly shows that it was given to secure a debt, but does not show when the same matures, is notice to one dealing with the grantor therein of all the rights which the grantee has under the contract performance of which is thereby secured. Especially is this true where the deed in terms refers to the bond for titles held by the grantor as containing the “terms and conditions" of the contract of indebtedness.</p>

<p>Action on insurance policy. Before Judge Norwood. City court of Savannah. March 29, 1898.</p>

<p>1. Where county commissioners invite proposals for the erection of a public-building to cost$300.00 or more, and “the terms and time of payment” are not stated in the notice and advertisement, a contract made in accordanee with a bid submitted under such defective notice and advertisement is illegal.</p> <p>2. Without the preliminary sanction of a popular vote as required by the by constitution, county commissioners have no authority to contract to have to havej a court-house built on the credit of the county at a price in excess of the available funds on hand together with such taxes as may be lawfully-levied for that purpose during the year the contract is made.</p> <p>3. When necessary, county commissioners may levy an extra tax for having a court-house erected, and while they should be restrained from using the proceeds of such taxation in carrying out an unauthorized contract entered into by them, there should be no interference with the collection of the tax for the purpose of having a court-house built therewith under a contract to be made in pursuance of the provisions of sections 344 et seq. of the Political Code.</p>

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

<p>Where an affidavit of illegality has been filed by two defendants to the levy of a fi. fa. issued upon a judgment against them, founded upon a suit on a joint and several promissory note of which they were makers, on the ground that neither of defendants was served, and where the uncontra-dicted evidence upon the trial of this issue shows that one of the defendants had been duly served and the other had not, it was not error for the ■court to direct a verdict that the fi. fa. proceed only as to the party thus ■shown to have been duly served.</p>

<p>1. When a person dies intestate and without heirs, leaving an estate more than sufficient to pay his debts, the county school commissioner and treasurer of the public school fund in the county of the residence of the deceased, has such an interest, in his official capacity, as distributee of such estate as will entitle him to maintain a proceeding before the court of ordinary instituted for the purpose of requiring the administrator on such estate to give bond.</p> <p>2. Where the clerk of the superior court has by the ordinary been appointed administrator of an estate, it is the duty of the ordinary, upon the application of any one interested in the estate as creditor, distributee or legatee, to require the administrator to give bond or be removed, there being no liability on the official bond of the clerk for his acts and doings as administrator ; provided the petitioner in such application for bond presents the name of some fit and proper person who is willing to take the administration and who will give bond and security as such administrator.</p>

<p>1. When an attorney for a' defendant in fi. fa. purchases land of his client sold at a sheriff’s sale and takes a deed to such land in his individual name from the sheriff, the title in the hands of the attorney stands affected with a trust in favor of his principal by operation of law, particularly in a case where an agreement is had between the defendant and his attorney that such purchase shall be made for the benefit of the defendant, and an announcement to this effect is made by the attorney-while the property is being offered for sale.</p> <p>2. When title to realty is thus passed into the hands of an attorney, and a parol agreement is had by the defendant and his children that the attorney shall make a deed to two sons of the defendant, so as to enable them to raise money by encumbering or selling a portion of the property sold, for the purpose of reimbursing the attorney the amount he paid for the benefit of the defendant, with the understanding among all the parties that, after such payment is so made, the property shall be held by the sons for the benefit of the defendant and hischildren during his life, and, after his: death, shall continue to be the home of his daughters as long as they or either of them remain single, and then divided among the children, and when this agreement has been fully carried out by all the parties concerned and the estate has become ready for distribution among the children, under the terms of the agreement: Held, the law will imply a trust in the two sons in favor of the beneficiaries provided for in the parol agreement.</p>

<p>Action on contract. Before Judge Eve. City court of Richmond county. April 9, 1898.</p> <p>cited Civil Code, §§2694, 5207, 5204, 3642, 3657, 3661; 93 Ga. 497, 501; 80 Ga. 477; 25 Ga. 87; 16 Ga. 410; 78 Ga. 741; 75 Ga. 500; 72 Ga. 713; 55 Ga. 198; 1 Johns. Cas. 22; 1 Am. D. 92, 93; 70 Am. D. 262; 37 Am. D. 155, 161; 46 Am. D. 346; 9 Cush. 31; 20 Am. D. 566; 9 Wall. 274.</p> <p>cited 1 Ga. 12; 51 Ga. 76; 54 Ga. 289; 91 Ga. 382; 1 Benj. Sales (Corbin’s ed.), §§160, 208, 214, 215; 3 Am. & Eng. Enc. L. 893; 8 Id. 736, 742; 14 Wall. 603; 9 Wall. 272; 41 N. W. Rep. 1029, 1030; 2 Watts, 451; 31 Pa. 265: 51 Am. D. 628; 37 Am. D. 160; 47 Ga. 479; 63 Ga. 71; Id. 442; 54 Ga. 681; 88 Ga. 822; 116 U. S. 491; 73 Ga. 405; 49 Ga. 146; 53 Am. D. 540; 52 Mo. App. 481; 86 Ga. 228; 1 Comst. 261; 49 Am. D. 316; 124 U. S. 49; 34 N. J. L. 115 ; 52 Minn. 31; 80 Ga. 472(4); 17 Ga. 422; 27 Ga. 350; 63 Ga. 71 (2), 76; 3 Ga. 217; 93 Ga. 501.</p>

Action for damages. Before Judge Beck. City court of Griffin. March term, 1898. It appears from the declaration, that on May 26, 1897, the-plaintiff’s daughter, four and a half years of age, was gathering berries with another child in a cut through which the defendant’s line of railroad runs, within the corporate limits of Griffin. A passenger-train approached, running at a speed of' twenty-five to thirty miles per hour.

<p>Complaint for land. Before Judge Reese. Warren superior court. April term, 1898.</p> <p>The will of Margaret M. Shaw, after giving to Charles C. Lowe a remainder interest in certain land, disposed of other land as follows: “Item second. I give and bequeath to Elizabeth Tarver and Margaret Ann Tarver [the land last mentioned] , provided they come and live on it; if not, to remain with the other lot, and at the death of Elizabeth Tarver and Margaret Ann Tarver, that portion of the land, also, to go to-Charles C. Lowe.” After the death of the testatrix the Tarvers moved upon the land described in this item. Subsequently the executor of the will filed a bill praying for direction and for construction of this item, and that the Tarvers and Lowe, who-were made parties defendant, be required to interplead. Lowe answered, contending that the Tarvers took only a life-interest in the land, with remainder to him. The Tarvers filed an answer, alleging that they were then residing on the land and intended to remain there permanently, and contending that they were therefore entitled to have it decreed to them in fee-simple. The court held that the Tarvers, having complied with the .condition of the will by living upon the land, took a fee-simple title. Lowe excepted to the decision, and the Supreme Court affirmed the judgment of the court below. Lowe v. Cloud, 45 Ga. 481. Afterwards the Tarvers sold the land to Joseph Holder, gave him possession, and moved away, having until then lived upon it continuously from the time when they first moved upon it. Holder remained in possession until the time of his death, and since then Mary A. Holder, his-widow and sole heir at law, has lived upon the land. Holder bought with notice that Lowe claimed that a sale of the land by the Tarvers would reduce their interest in it to a life-estate, and that after their death it would pass to him (Lowe). This claim was the basis of the present action, which was brought by Lowe against Mary A. Holder, after the death of the Tarvers, for the recovery of the land. The defendant denied that the plaintiff had any interest in the land, and pleaded that the question as to his interest was adjudicated by the decision above referred to, and that he was thereby estopped from setting up any claim to the land. The court, to whom the case was submitted upon an agreed statement of facts, without the intervention of a jury, rendered judgment in favor of the defendant ; and the plaintiff excepted.</p>