Volume 108 — Georgia Reports

<p>1. The preference given by section 3618 of the Civil Code is confined to deeds made upon a valuable consideration. Hence such a deed, though not recorded until after the record 'of a subsequent voluntary deed by the same grantor, does not lose priority over such voluntary deed.</p> <p>2. Under the ruling above announced, the verdict was demanded by law and the evidence, irrespective of the errors alleged to have been committed, and it was error to grant a new trial.</p>

<p>1. When an affidavit to foreclose a laborer’s lien upon the property of an alleged partnership is met by a counter-affidavit filed by one of the persons alleged to be a member of the firm, denying the existence of the partnership, and also any indebtedness of the affiant to the plaintiff and that any lawful demand had been made, the latter, in order to recover, must prove that there was a partnership, that it was indebted to him as such for labor, that he had a valid lien upon its property, and that a legal demand for payment had been made and refused.</p> <p>2. An agreement to the effect that the owner should furnish “the mills, the wagons, the mules, and the hands,” and another person owning no interest in any of the property “should give the business [his] personal attention in looking after it, and . . have for [his] services one half of the profits, ’ ’ does not constitute such persons partners in operating a sawmill. Such an agreement creates the relation of employer and employee between them, but does not create a joint interest in the profits.</p> <p>3. When in a case of the nature above indicated the undisputed evidence established such a state of facts as that stated, a mere admission by the-owner of the business, that the employee was his partner, would not be sufficient to establish the fact that the partnership really existed, it not appearing that the party setting up the partnership had ever acted upon, or been misled by such an admission.</p> <p>4. Under the evidence set out in the petition for certiorari, the verdict was-unwarranted, and the judge erred in not sanctioning the petition.</p>

<p>1. Where one furnishes timber to the owner of a sawmill for the purpose of enabling the latter to carry on his business of sawing the logs thus furnished into lumber, and under the contract between the parties it is stipulated that the party furnishing the logs shall receive as compensation therefor either one half of the lumber into which the logs are converted or a stipulated price per hundred feet for such half, this does not constitute a partnership between the parties. Such being the effect of plaintiff’s evidence ,on the trial of this case, which was a proceeding to foreclose a lien for material furnished the owner of a sawmill, it was not error to overrule a motion for nonsuit, made by the defendant on the ground that the plaintiff’s evidence “showed that the plaintiff and defendant were partners as to this lumber, and the relation of debtor and creditor did not exist between them.”</p> <p>2. Where the verdict for the plaintiff- in such a case is, in the opinion of the judge before whom the case was tried, excessive, and under order of court the same is reduced by the plaintiff’s counsel to an amount for which a verdict of the jury would have been authorized under the evidence, such order of the court is not illegal; and after the verdict is thus reduced, there is no error in the court refusing to grant a new trial on the ground in the motion of the defendant that the verdict was contrary to evidence.</p>

<p>Complaint. Before Judge Butt. Marion superior court. April term, 1898.</p>

<p>1. This court can not consider an assignment of error based upon a refusal to allow a witness to answer certain questions, when it does not appear what the answers would have been.</p> <p>2. Portions of the answer which were stricken attempted merely to construe a written contract, which was a matter for the court; and the allegations of fraud contained in certain other portions were too loose and general to raise an issue of fraud, there being no denial of the execution of the instrument sued on.</p> <p>3. The defendant made the following contract with the plaintiffs: “For 'and in consideration of the sum of one dollar in hand paid, and the receiptof which is hereby acknowledged, I, J. H. Manry, do hereby guarantee the prompt payment of all accounts and notes given in settlement for goods purchased by G. W. Grubbs of Bethel, Georgia, from the Waxelbaum Company of Macon, Georgia, to the extent of four hundred dollars. Be it further understood that I, J. H. Manry, shall be at liberty to withdraw this guarantee at any time, provided that the account of G. W. Grubbs is paid.” Held, that this was a continuing guaranty.</p> <p>4. It was not necessary for the creditor, before extending credit to the principal debtor on the faith of such a guaranty, to notify the guarantor of the acceptance of his undertaking.</p> <p>5. There was no error in directing a verdict against the defendant for four hundred dollars, but it was error to direct that interest be added at the rate of eight per cent, per annum from the maturity of the indebtedness of the principal debtor. The plaintiffs were entitled only to interest at seven per cent, from the date of the filing of the suit, no demand having been made prior to that time. Direction is given that the verdict and judgment be amended as above indicated, and that the costs of this writ of error be taxed against the defendant in error.</p>

<p>1. On the trial of an issue as to whether one is a bona fide purchaser of property from a defendant in fi. fa., as contemplated by section 5355 of the Civil Code, it is not error for the judge to refuse to charge the jury to the-effect that if the purchaser had knowledge of the existence of the judgment at the time he bought the property and promised the defendant in fi. fa. to pay the judgment, his possession of the property for four years did not release it from the lien of the judgment; it not affirmatively appearing in such trial that the promise was made prior to or cotemporaneously with the purchase, nor that there was any consideration for such promise, and it further not appearing that the plaintiff in fi. fa. ever knew of or acted upon the same. The fact of such knowledge of the existence of the judgment is a matter for the jury to consider, under all the circumstances of the case, in determining whether or not the purchase was in good or bad faith.</p> <p>The verdict in this case was not only sustained by the evidence, but, in the light of the record before us, was manifestly right; and the court therefore did not err in refusing to grant a new trial.</p>

<p>1. A business carried on by a non-resident of this State through agents, some of whom solicit from citizens of Georgia orders for goods and forward the same to their principal in the State of his residence, and others of whom, after the arrival of shipments from that State, make deliveries to and collections from the customers here, is not protected by the interstate commerce clause of the Federal constitution from municipal taxation in Georgia, when it affirmatively appears that some of these goods are never in fact ordered or purchased until after they are actually within the limits of this State.</p> <p>2. The above is applicable to a business in the course of which each customer, though he actually orders a portrait from a dealer in another State, has the right or privilege of selecting and purchasing from the latter’s agent in this State a suitable frame for every portrait from a stock of frames shipped to Georgia for this purpose by the dealer, no customer, however, being in any instance bound to purchase a frame unless he chooses to do so. So far as respects the sale of the frames, this is a Georgia business pure and simple, and has no interstate feature.</p> <p>3. The recorder did not err in holding that the municipal ordinance under which, the plaintiff in error was tried and convicted was not violative of the above-mentioned clause of the constitution of the United States, nor in adjudging that he was guilty. There was, consequently, no error in refusing to sanction the petition for certiorari.</p>

<p>Indictment for murder. Before Judge Candler. Fulton superior court. March term, 1899.</p>

<p>'Where in the trial of a criminal case the proof shows that a man and a woman, in an intoxicated condition, were riding upon a street-car, using profane language and kissing and hugging each other to such an extent as to attract the attention of other passengers upon the car, upon which were also other females, this is sufficient to sustain a verdict of guilty under section 396 of the Penal Code, notwithstanding the female passengers may not have heard or witnessed such conduct.</p>

<p>A petition declaring that the defendant is indebted to the plaintiffs on an open account, a copy of which is thereto attached, and containing allegations consistent with the design of obtaining a judgment against him upon such account, but which also contains other allegations indicating a purpose to declare for damages arising from a breach by the defendant of a contract to furnish to the plaintiffs a specified collateral security for the payment by another of this identical account, is bad for duplicity.</p>

<p>Indictment for murder. Before Judge Fite. Bartow superior court. January term, 1899.</p>

<p>An affidavit filed with a motion for a new trial by one who had been convicted of a crime, purporting to set forth an .account of his connection with the alleged criminal act, entirely different from that given by him in his statement when on trial, can not be treated as newly discovered evidence, and would not, of course, authorize the granting of a new trial.</p>

<p>1. A failure to serve the solicitor-general with notice of the sanction of a petion for certiorari in a criminal case is not ground for dismissing the bill of exceptions in this court, assigning error upon the judgment of the court below overruling such petition.</p> <p>2. An indictment which charges the defendant with illegally voting at a municipal election legally and regularly held at a certain time and place, on account of the defendant’s being then and there a defaulter in a certain sum for taxes due by him to the State and couffiy for a given year, sufficiently conforms to the requirements of the law in stating the offense.</p> <p>3. Where a defendant is. charged with the offense of illegally voting at a certain election, and the only evidence introduced on the trial in the county court tending to show that he actually voted at such election is a list of voters kept by one of the managers of the election, with the name of the defendant appearing thereon as a voter, a verdict finding the defendant guilty is contrary to the evidence; and the court erred in not sustaining the defendant’s petition for certiorari on this ground.</p>

<p>1. The court committed no error in admitting the evidence of which complaint is made in those grounds of the motion for new trial not dealt with in the note below. The evidence here referred to was material and pertinent, and bore on the issue involved in the case. Nor did the court err in ruling that the language used by the solicitor-general in his argument to the jury was pertinent to the case. While the language complained of was harsh, it was, in view of the evidence, legitimate.</p> <p>2. While in an indictment for forgery only the material parts of the instrument, as a contract, are required to be set out, yet when, as descriptive of the instrument charged to have been forged, minute particulars, such as the number of a check, are set forth in the bill, those particulars must he proved as laid; and when a bill of indictment charges the alteration of a check which is in part described as bearing a specified number, a check of similar import as that described but bearing another number is not admissible as being the original check alleged to have been altered.</p>

<p>1. Where an indictment for embezzlement charged that the offense was committed on a named date, and that the accused was then the treasurer of a designated corporation, and it appeared upon the trial that he did not hold such office at the time alleged, the State was not restricted to the day specified in the indictment, but had the right to prove that the accused committed the crime, while such treasurer, at any time prior to the finding of the indictment, within the statute of limitations.</p> <p>2. Even if some incompetent evidence as to a collateral matter be admitted, yet if the legal evidence, wholly disconnected from that not competent, clearly and beyond all reasonable doubt demanded the verdict of guilty, a new trial will not be granted.</p>

<p>When a corporation authorizes a person to. receive money on its behalf from others, immediately upon the receipt of money so authorized to be collected a trust relation arises between the corporation and the person receiving the same; and if such person fraudulently converts the money so received to his own use, he may be indicted and punished under section 194 of the Penal Code, which prescribes the punishment to be inflicted for the fraudulent conversion by a person of money or other thing of value entrusted to him by another for the use and benefit of the ‘ ‘ owner or person delivering it. ” ,</p>

<p>1. This court will not grant a new trial because of the refusal of the trial judge to grant a continuance of a case on account of the absence of a witness, when it does not appear from the motion for new trial that the movant complied with the law in establishing by legal proof before the judge the facts relied upon in support of the motion for a continuance.</p> <p>2. The evidence was sufficient to sustain the verdicts.</p>

<p>The right of stoppage in transitu of goods sold on a credit, when the consignee is insolvent, exists against such consignee and all purchasers from him, until there has been an actual delivery of the goods to the consignee or to a purchaser under his order; and until such delivery has been made and possession of the goods obtained, the title of a bona fide purchaser from the consignee, without notice, can only be made good against the exercise of such right by an assignment of the bill of lading.</p>

<p>Complaint. Before Judge Reagan. Upson superior court. November term, 1898.</p>

<p>1. When a railroad company furnishes as the only means of transportation over its road a “ mixed train ’ ’ composed of a passenger-coach and a number of freight-cars, and when on account of the character and construction of such a train it can not start from a station, after stopping thereat, without its movement being attended with a jerk which may endanger the safety of those on board who are unseated, it becomes the duty of the company to use extraordinary diligence in protecting against such danger a passenger who has boarded the train, by stopping a sufficient length of •time to give such passenger a reasonable opportunity to be seated. The .company is, therefore, liable to the passenger for any injury he may sustain in consequence of its negligence in this particular. It is, on the other hand, the duty of the passenger in such a case to exercise ordinary care in obtaining a seat on the coach ; and if the jolting of the train when starting was unavoidable, after it had stopped a reasonable length of time to allow a passenger to be seated, an injury resulting in consequence of unnecessary delay of the passenger in obtaining a seat will be attributable to his-fault, and'the railroad company will not be liable therefor.</p> <p>2. Where a lady passenger is accompanied by a little girl and encumbered with hand-baggage and parcels which she can not unaided place promptly and safely upon the train, and consequently has to procure-the aid of another in carrying her baggage aboard, such other person has a right on the train for such purpose, especially when the agent of the company in charge of the train sees the situation of such passenger, offers no assistance himself, and does not object to such assistant of the lady going upon the train. ' In such a case the fact that the sudden jolting or jerking of the train on starting throws the man accompanying the lady, with a valise, against her and causes him to thus knock her upon the seat whereby she is injured, •without fault on the part of either, does not relieve the company from liability.</p> <p>3. The controlling issues in this case are governed by the above principles of law. These issues were fully and fairly covered by the charge of the court to the jury; the evidence was sufficient to sustain the verdict; and even if there was error in any of the rulings and charges of the court complained of, considered in the light of the evidence in the record and of the entire charge of the court, such errors, if any, were not of such a . • natpre as would require or authorize .this court to reverse a judgment . overruling' the motion for new trial, especially as this is the second verdict for'the plaintiff that has passed the approval of the court below.</p>

<p>Motion to set aside judgment. ' Before Judge Williams. City court of Way cross. December 26, 1898.</p>

<p>Petition for mandamus. Before Judge Bennet. Coffee county. March 18, 1899.</p>

<p>1. When a non-resident of the county in which an equitable petition is filed against her and others who are residents of that county voluntarily appears and files an answer which not only denies material allegations of the plaintiffs’ petition, but also prays for affirmative equitable relief against the petitioner and some of her codefendants, and consents to an amendment to the petition which prays for a money judgment against her, a motion thereafter made to dismiss the action, on the ground that the court was without jurisdiction because such defendant was a nonresident of the county in which the petition was brought, comes too late, and there is no error in overruling the same.</p> <p>2. When a written instrument, duly executed, guarantees the payment of a sum of money as offered by another for the arrest, with evidence to convict, of the person or persons who shot and killed another named person, such an instrument is, in effect, an offer of a reward of the sum named with the conditions annexed. Where under such an offer one to whom it is made arrests the person who committed the homicide, and furnishes the evidence which secures his conviction, the offer by such acceptance becomes a binding promise to pay, for which the performance of the services affords a sufficient consideration.</p> <p>3. The verdict was warranted by the evidence, and was not contrary to law.</p>

<p>1. Where judgment was rendered against a defendant in the county of his residence, but the ñ. fa. issuing thereon was not entered upon the general execution docket thereof within ten days from the date of the judgment, one subsequently purchasing from the defendant, claiming that the judgment was not alien upon the property by reason of such facts, must, in order to relieve the property from the lien of the judgment, prove that he acted in good faith and without notice in making such purchase.</p> <p>2. Proof of want of notice on the part of an agent is not proof of want of notice on the part of his principal.</p> <p>3. No assignment of error was made upon the rendition of a final judgment in the superior court. Had there been, then the case would have been controlled by the ruling of this court made in Holmes v. Pye, 107 Ga. 784.</p>

<p>Petition for injunction. Before Judge Littlejohn. Sumter county. March 4, 1899.</p> <p>The Americus Manufacturing and Improvement Company was organized with a capital of $100,000, of which $97,770 was paid in. It bought valuable central property in the city of Americus, on a portion of which it built and furnished a hotel at a cost of about $150,000. It thus started with a debt of more than $50,000, of which $30,000 was borrowed from P. K. Dederick. Part of the remainder was borrowed from local banks, and this loan was in part secured by a mortgage on the vacant or park property of the company. The rest was floating indebtedness, including pressing claims and liens for labor, material, etc. The loan from Dederick was procured in pursuance' of a resolution of the board of directors of the company, passed on March 11, 1892, with the knowledge and assent of the stockholders, empowering the company’s officers to execute to Dederick its note or notes for the $30,000 borrowed on five years time, with interest coupons, and to execute as security therefor a mortgage covering the hotel and the lot on which it was situated, “in such form as may be required by the said P. K. Dederick, and to do and to perform such other acts in the name of this company as may be necessary to secure said loan of money.” On the next day the notes and mortgage were 'executed, and, as required by Dederick, thirteen individuals, including the directors of the company, executed to him their joint and several guaranty of the prompt payment of both the interest notes and the principal note. In March, 1897, the company defaulted in the payment of the principal and interest then due; whereupon Dederick demanded payment of the guarantors, and offered to transfer to them the mortgage and notes. He refused to extend or renew the loan, except upon payment of the interest and the renewal of the same guaranty, and all of the guarantors refused to become again so bound. In May thereafter the debt was paid to Dederick with funds supplied by four of the guarantors and by two outside parties. Dederick sold and conveyed to these six persons all his right, title, and interest in and to the mortgage and the debt thereby secured, as well as in the guaranty. On February 2, 1898, the transferees obtained a rule nisi for the foreclosure of the mortgage, and a rule absolute was granted at the following May term of the superior court. Advertisement and sale of the property were postponed from time to time, pending various efforts to obtain a loan to pay off the mortgage debt. Finally it was advertised to be sold in February, 1899; and on the 6th day of that month a number of stockholders brought a petition for injunction to prevent the sale. On the hearing the injunction was denied, and the plaintiffs excepted.</p> <p>It is contended by the plaintiffs, that, by giving a renewal of the guaranty when the mortgage debt matured, the directors of the company could have obtained from Dederick a renewal or extension of the loan, and it was a violation of their trust not to do so, it being the wish of the stockholders, and to their interest, to obtain such renewal; that the company is' solvent, its property worth upwards of .$50,000 even at the present low rate of valuation in stringent times, and under fair conditions it would sell for that sum or more, whereas by pressing it to sale under the pending levy and advertisement it will be sacrificed; but if time be given and a sale postponed for a few months (or about two years, according to one witness), a loan can be obtained to pay off the indebtedness, or a sale for something like the intrinsic value of the property (which is about $100,000) can be made. It is further contended that, by forcing the property to sale at this time, the transferees of the mortgage (two of whom are still directors of the company) would profit at the expense of the stockholders, who would ■ utterly lose all they have' paid into the company. For the defendants it appears, that the transferees of the mortgage took up the same at the earnest request of the stockholders, and at considerable personal sacrifice to themselves, some of them borrowing money in order to do so, on which they are paying interest, while they have received no interest on the mortgage debt for nearly two years which have elapsed since they paid the debt to Dederick; that they have co-operated in the numerous efforts during that time to obtain for the company a new loan to pay this debt, have granted all the requests made by the directors for postponement of foreclosure and of advertisement and sale; that they would gladly transfer the mortgage debt upon payment of the amount due, and they have no desire to gain anything at the expense of any stockholder. They admit that the company is solvent, and that the property in question is worth $35,000 or more; and aver that they had made arrangements whereby it would have brought at least that sum at the sale advertised for February, and that they are informed and believe that it would have brought largely more. The other matters touched upon by the allegations and testimony appear to be immaterial to the controlling question decided in the opinion which follows.</p>

<p>Levy and claim. Before Judge Smith. Montgomery superior court. November term, 1898.</p>

<p>It was, on the trial of an action for trespass upon realty, brought to recover damages to the freehold, erroneous to admit in evidence in the plaintiff’s favor a bond for title in which he was named as obligee and’to which the name of the person from whom he claimed to have purchased such realty had been apparently signed by an attorney in fact, when there was no evidence showing that the alleged attorney had any authority in the premises.</p>

<p>Petition for injunction. Before Judge Smith. Twiggs county. May 9, 1899.</p>

<p>Complaint for land. Before Judge Sweat. Ware superior court. November term, 1898.</p>

<p>Where in a petition for leave to file information in the nature of a quo warranto the petitioner claims title to the office of mayor of an incorporated city or town by virtue of having obtained a majority of the legal votes cast at a popular election for this office, and this conclusion is founded solely upon his contention that a manager at one of the precincts opened in said election was not a freeholder, this court will not reverse the judgment of the court below, refusing the application, when the evidence on the trial clearly showed that the election-manager whose qualification for the position is thus attacked was in point of fact a freeholder.</p>

<p>• Equitable petition. Before Judge Lumpkin. Fulton superior court. September term, 1898.</p>

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

<p>Petition for injunction. Before Judge Lumpkin. Pulton county. March. 9, 1899.</p>

<p>1. The finding of an auditor on an issue of fact when the evidence is conflicting, which has been approved by the judge of the superior court, will, not be disturbed by this court.</p> <p>2. The present case was one peculiarly appropriate for reference to an auditor, and it was therefore not error to appoint an auditor therein, notwithstanding some of the parties objected to such reference.</p> <p>3. Relationship can not be proved by general repute in the community.</p> <p>4. There is in this State no constitutional right to a trial by jury in an equity case.</p> <p>5. Under the provisions of the present code of this State, a party is not entitled to have exceptions of fact to an auditor’s report in an equity case passed upon by a jury, unless the judge approves such exceptions.</p> <p>6. There was no error committed by the judge in refusing to approve the exceptions of fact which were filed to the auditor’s report; nor were his rulings on the exceptions of law which we have found it necessary to review in any way erroneous.</p>

<p>Certiorari. Before Judge Hutchins. Banks superior court. ¡September term, 1898.</p>

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

<p>Equitable petition. Before Judge Smith. "Wilcox superior court. August 31, 1898.</p>

<p>1. Under the decision of this court in the case of Cook v. Equitable B..& L. Ass’n, 104 Ga. 814, the contract sued on in this case was free from usury.</p> <p>;2. This being a valid contract entered into by the parties, illegal or unauthorized conduct on the part of the officers of the plaintiff corporation, in misapplying payments made by the defendant on his debt to the company, does not infect the contract with usury. Hence there was no error in sustaining the demurrer to the defendant’s plea of usury.</p>

<p>1. A demurrer alleging that no proper exhibits are attached to a petition should itself show what exhibits are requisite.</p> <p>2. An action by a building and loan association for damages resulting from the breach of a bond given to it by a member to whom it had made an advance upon his stock, with a prayer for the foreclosure of a mortgage which he had executed to secure the payment of such damages, was well brought. In such a case, this method of procedure was more appropriate than a rule to foreclose the mortgage.</p> <p>3. When the corporate name of a plaintiff and the transaction which it sets forth as the basis of its action are such as to indicate that it is a building and loan association “pure and simple,” and there is nothing in the petition suggesting the contrary, it should be regarded as an organization of this kind until, by way of defense, it is shown to be otherwise.</p> <p>4. It will, in the absence of proof to the contrary, be presumed that such an association has complied with the requirements of the law as to depositing security and giving bond.</p> <p>•5. A transaction within the scope of the legitimate business of a building and loan association is not rendered usurious merely because a member who obtains an advance upon his stock actually pays for the use of the money more than the maximum legal rate of interest. The proper disposition to be made of such stock after it has been matured according to contract is to cancel the'same.</p> <p>■6. A member of a building and loan association is bound by a resolution duly adopted “ by the unanimous assent of the shareholders,” and allegations in a petition against him to the effect that under the terms of such aresolution he was liable for the payment of a specified number of installments upon his stock, and that he had made “default” in paying a designated number of the same after they became “due,” sufficiently aver that this stock had not been “matured.”</p>

<p>Money rule. Before Judge Sweat. Glynn superior court. May term, 1898.</p>

<p>1. Where in a particular instance the local agent of an insurance company-had no authority except to forward to it for approval or rejection an application for insurance, and this was known to the applicant, a mere oral statement by the agent to the applicant that the insurance, if granted, would be operative from the date of the application, was not binding upon the company, the more especially when it was in the application stated * that the insurance Sought was desired from “the .... day of.....” in one year to “the .... day of.......” in another.</p> <p>2. Though the company’s general agent may, on the receipt by mail of such application, have approved the same, and may by letter have directed the issuance of a policy by the local agent, this constituted authority to issue one effective only from its date, and not one protecting the applicant’s property from any prior point of time. Accordingly, if the same had been actually destroyed by fire before the application was approved, and the general agent acted in ignorance of this fact, the company was not bound either to issue a policy or pay the loss.</p>

<p>Action for damages. Before Judge Sweat. Glynn superior court. December 29, 1898.</p>

<p>Equitable petition. Before Judge Sweat. Clinch superior-court. October term, 1898.</p>

<p>1. The evidence in this case showing that the plaintiff had entered into an express contract in which it was agreed that the defendant would not be liable for loss of baggage beyond its own line, and that the baggage alleged to have been lost was delivered by the defendant to the connecting line and not returned to the defendant, a recovery for the plaintiff was unwarranted.</p> <p>2. Statements made in letters written by a client to his attorney, concerning matters connected with litigation which the attorney has been employed by the client to conduct, are confidential communications, and are inadmissible in evidence against the client.</p> <p>3. The pauper affidavit made by a plaintiff in a suit in a justice’s court brought to recover against a railway company for the loss of a trunk and contents, in order to appeal the case to the superior court, is not admissible on the trial of the case in that court to show that the plaintiff’s financial condition was such that she did not probably own the property claimed to have been contained in the trunk.</p>

<p>1. An attorney at law for a party in whose favor a verdict is rendered on the trial of an appeal in a justice’s court can enter in behalf of his client a judgment on such verdict any time within four days after the adjournment of the court; and if such judgment conforms to the verdict, the justice has no alternative but to transcribe the same upon his docket.</p> <p>2. Issuing an execution being a mere ministerial act, a justice of the peace may be compelled by mandamus to perform this duty.</p>

<p>A plea which sets up, as the basis of the sole defense to a suit upon, an unconditional contract in writing, a subsequent agreément in the nature of an accord and satisfaction, or a composition agreement between creditors, including the plaintiff; and the defendant, is defective when it fails to allege facts sufficient to put the plaintiff upon notice of the exact terms of .such agreement and when and with whom it was entered into. When one ground in a demurrer to such a plea by the plaintiff specifically objects to a defect of this character therein, the judgment of the court below striking the plea will' not be reversed, although the judge in his order sustaining the demurrer may have based his ruling on an entirely different, and even erroneous reason.</p>

<p>1. Affidavits, one alleging that the affiant is “ a laborer and mechanic, and that as such” he was employed “to work and labor ” in a printing-office, and the other, in addition to the above, setting up that the affiant was employed as a “job-printer,” are sufficient to be the foundation of -proceedings to foreclose the general laborer’s lien provided for in section 2792 of the Civil Code.</p> <p>2. Such a lien is superior to the lien of a mortgage older in date than the contract of labor, and given to secure the purchase-money on the property against which the laborer’s lien is sought to be enforced.</p> <p>3. The fact that such a mortgage has been foreclosed and execution levied and the property redelivered to the mortgagor upon the execution of a forthcoming bond does not prevent such a lien from attaching to the property; and this is true though the contract of labor was entered into after the redelivery of the property under the forthcoming bond,</p> <p>(a) Whether or not in such a case the sureties on the forthcoming bond would be liable to the plaintiffs in the mortgage foreclosure proceeding, as for a failure to redeliver the property to the levying officer when called for in terms of the law, in the same condition it was in when the bond was given, is a question not made by the present record.</p>

<p>1. In a suit for damages against a street-railway company for personal injuries sustained by the running of its cars on a public crossing in a city, where the plaintiff’s petition alleges that the defendant’s car was at the time of the injury running fifteen miles an hour, which “violated an ordinance of the City of Atlanta which requires the speed of such cars over crossings not to exceed six miles per hour,” it was not error for the court to admit in evidence ordinances of the city prescribing that the speed of street-cars should not be more than six miles an hour at public crossings, and making a violation of the ordinance a penal offense; the only objection made by counsel to the introduction of the ordinances being that the same were not sufficiently pleaded in the plaintiff’s petition.</p> <p>2. The requests to charge, in so far as they were pertinent and legal, were covered by the principles of law embodied by the court in its general charge to the jury; that charge was fair and thorough, and fully covered the issues involved; there was some evidence to support the verdict, and this court will not interfere with the discretion of the trial judge in refusing to. grant a new trial.</p>

<p>1. Where a sheriff has realized money from the levy and sale of property under a mortgage fi. fa., upon being ruled by the plaintiff an answer by the sheriff that he had in his hands fi. fas. against the defendant of older date than the mortgage fi. fa. is not sufficient, it not appearing that the fi. fas. in the hands of the sheriff were issued upon judgments of older date than the mortgage itself.</p> <p>2. After a judgment had been rendered, striking such an answer of the sheriff, it was not error for the court to refuse to allow other persons who were creditors of the defendant in fi. fa. to file an intervention claiming the fund, when it does not appear what equitable or legal right to the fund such parties proposed to set up by their intervention.</p>

<p>Illegality. Before Judge Gamble. Bulloch superior court. October term, 1898.</p>

<p>Complaint for land. Before Judge Callaway: Burke superior court. October term, 1898.</p>

<p>Where to the levy of a mortgage fi. fa. upon land the defendant in fi. fa., as head of a family, filed a claim to the same upon the ground that it was exempt from the lien of the fi. fa. as homestead property, and where on the trial of that issue a verdict was rendered finding the property subjeet and an order granted by the court directing the fi. fa. to proceed; held, that a purchaser of the land at sheriff’s sale acquired a good title as against the homestead rights set up in the claim case by the defendant. This is true notwithstanding after such sale the husband may have duly established lost papers in the court of ordinary, showing the existence of such homestead right before the mortgage was given.</p>

<p>Appeal. Before Judge Reese. - Elbert superior court September term, 1898.</p>

<p>Complaint. Before Judge Prior. City court of Hall county. December 13, 1898.</p>

<p>1. When a contract for services has been made and broken by the employer, the other party, if he has performed any of the services contemplated, may either maintain an action to obtain damages for the loss sustained by the breach of the contract, or he riiay sue on a quantum meruit to recover the value of the services so performed.</p> <p>2. Where such a contract was made and if failed to express the time within which the services were to be performed, an amendment to the plaintiff’s petition in an action for the value of his services, alleging that it was the custom in the business in which the plaintiff and defendant were engaged, well known to the defendant, and becoming a part of the contract, that one year was the time within which such services should be performed, was germane, and, if offered in season, should have been allowed.</p>

<p>The solicitor of the criminal eourfc of Atlanta is entitled to the same fees as the solicitors-general of the State; and hence there was no error in awarding to such solicitor, on a money rule instituted by the clerk of that court, such fees in each case in which the offense was reduced to a misdemeanor by the act of March 20, 1866.</p>

<p>Motion to set aside judgment. Before Judge Reid. City court of Atlanta. November term, 1898.</p>

<p>Action of deceit. Before Judge Berry. City court of Atlanta. November 26, 1898.</p>

<p>Illegality. Before Judge Reid. City court of Atlanta. September term, 1898.</p>

<p>1. Testimony tending to show that a defendant had endeavored to suborn a witness is inadmissible in the absence of any proof showing that such improper conduct had relation to the case on trial.</p> <p>2. It is not, in order to prove “habitual intoxication” on the part of the respondent in a libel for divorce, essential to show that he was constantly and continuously drunk.</p> <p>3. It is not cruel treatment to charge a wife with unchastity if she has been guilty thereof.</p> <p>4. » A husband is not bound to support his wife if she abandons him without just cause.</p> <p>5. Though a libel for a divorce charging the respondent with conduct such as would in law authorize a divorce maybe defeated by showing that the libelant was guilty of “ like conduct,” the court should not, in the trial of such a cause, submit to the jury the question whether or not improper conduct on the part of the libelant “justified” the respondent in being guilty of conduct of the same kind. The question of justification is not involved in such a trial.</p>

<p>Petition for injunction. Before Judge Lumpkin. DeKalb county. April 10, 1899.</p>

<p>Certiorari. Before Judge Gamble. Johnson superior court. September term, 1898.</p>

<p>Action for penalty. Before Judge Callaway. McDuffie superior court. September term, 1898.</p>

<p>Action for damages. Before Judge Callaway. Columbia superior court. September term, 1898.</p>

<p>1. On the trial of a caveat to an application for a year’s support, involving the issue as to whether or not the applicant is the widow of the deceased, the burden of proof is upon her to show that she was his lawful wife at the time of his death. Where the only proof that she was lawfully married to the deceased is her statement to that effect, coupled with an admission on her part that after the marriage they lived in separate homes and she did not assume his name,.no license having been shown for such alleged marriage; and where it appears further from uncontradicted testimony that there was living, at the time she claims to have been married to the deceased, another man to whom she had been lawfully married, the burden of proving a dissolution of this former marriage by divorce is upon her, especially where she admits such former marriage and claims that a divorce was granted her from her former husband by virtue of a suit therefor in the court where the trial of the caveat is being had.</p> <p>2. When the only legal testimony on the subject relating to the divorce suit consisted of records of the court showing only one verdict for divorce and an entry afterwards made on the docket that the divorce case was dismissed, it was not error for the judge to direct a verdict for the caveators. Even if there was any error in admitting or rejecting evidence throwing no light on this issue, a new trial will not be granted on account of such immaterial rulings.</p> <p>3. Declarations of the former husband of the applicant and sayings of her attorney that such divorce was granted are not admissible in evidence on her behalf.</p> <p>4. The fact that the applicant believed that she was legally divorced from her former husband at the time of her marriage to the deceased does not render such marriage valid.</p>

<p>Certiorari. Before Judge Falligant. Chatham superior court. December term, 1898.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. October 7, 1898.</p>

<p>Action for damages: Before Judge Norwood. City court of Savannah. January 13, 1899.</p>

<p>The petition in this case sought damages for false imprisonment under a warrant issued by the defendants, acting in a judicial or quasi judicial capacity, and it did not appear that the action taken by them was without or beyond their jurisdiction. It was, therefore, not error to sustain a demurrer to such petition.</p>

<p>1. In an action of trover for the recovery of personalty, where on the trial' the plaintiff elects to take the property sued for, with hire of same, a verdict finding for the plaintiff but that he recover nothing for the hire is not void for uncertainty, but is clearly a finding in behalf of the plaintiff for the property sued for.</p> <p>2. In the light of the explanations made by the judge in his note to the motion for new trial, there was no error of law in any of the rulings complained of. The verdict was sustained by the evidence, and the court, did not err in overruling the motion for new trial.</p>

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

<p>Action for damages. Before Judge Felton. Houston superior court. April term, 1898.</p>

Action for damages. Before Judge Littlejohn. Dooly superior court. September term, 1898. This was an action for damages on account of the killing of the plaintiff’s husband, T. S. Mclver, by a train on the defendant’s railroad. The trial of the case having resulted in a verdict for the plaintiff, the defendant moved for a new trial.

Action for damages. Before Judge Ross. City court of Macon. November 26, 1898. Small sued the Mayor and Council of the City of Macon for damages which he alleged he had sustained in consequence of the backing of water from a sewer into the cellar of his store on Third street, between Poplar and Cherry streets, in that city.

<p>If one who is permitted by the agent of a railroad company to remain in the depot at a time when passengers are not usually there allowed leaves the building and enters a car standing at the station, and is there discovered in an act of gross immorality, and upon being required to return to the depot uses offensive and insulting language to and of the agent of the company who ejected him from the car, and continues, notwithstanding a caution not to do so, to use such language until the agent of the company is exasperated and commits an assault upon him, the company is not liable for the consequences resulting from such assault, even though the-agent be not fully excusable and the battery inflicted be entirely disproportioned to the insult given.</p>

<p>Petition for mandamus. Before Judge Russell. Clarke county. May 25, 1898.</p>

Partition. Before Judge Kimsey. Hall superior court. July term, 1898.

<p>Complaint on note. Before Judge Fite. Dade superior court. September term, 1898.</p>

<p>1. What a party to a case who was absent during the trial thereof would have sworn if present does not stand upon the footing of newly discovered evidence merely because-he has, since the hearing, disco vered that, in view of certain documentary evidence relied on by the opposite side and of the existence of which he had no previous knowledge, his attendance upon the trial was necessary in order that he might have an opportunity to offer himself as a witness to disprove the genuineness of the writings thus offered in evidence against him.</p> <p>2. That some of these writings purport to have been witnessed by one who was not, at the time they bear date, qualified to attest-the same as a notary public, presents no cause for disturbing the verdict returned by the jury.</p> <p>3. The evidence, though conflicting as to several of the issues involved, fully warranted the finding in favor of the prevailing party.</p>

<p>Bail-trover. Before Judge Smith. Telfair superior court. October term, 1898.</p>

<p>1. Assignments of error in a bill of exceptions, upon the overruling of exceptions to an auditor’s report, which complain of rulings made by the auditor in admitting and rejecting evidence, will not be considered by this court when the evidence admitted or rejected is not set forth in the exceptions filed to the auditor’s report.</p> <p>2. In a suit brought by a creditor of a corporation against persons alleged to be stockholders in such corporation, to recover unpaid subscriptions for stock, such persons, if shown to be subscribers for stock, will not be allowed in such a suit to call in question the corporate existence of the alleged corporation, nor to show any irregularities in its creation or organization, provided the contract sued on is within the powers apparently possessed by the alleged corporation.</p> <p>•3. The execution of the instrument sued on need not be proved unless the same is denied on oath.</p> <p>4. When in an equity case it appears that there was sufficient evidence before the auditor to sustain his findings on the facts, and the judge has either disapproved all the exceptions of fact, or, sitting as judge and jury by consent, has sustained the auditor on all such findings, this court will not reverse his judgment solely for the reason that there was evidence from which the auditor might have reached a different conclusion.</p> <p>5. An action brought by the “managing owners ” of a vessel described in a charter-party can not be defeated by showing that the vessel referred to. in the charter was only owned in part by the plaintiffs.</p> <p>•6. In an equity case which has been referred to an auditor, where the exceptions of fact are disapproved and the exceptions of law overruled, the proper practice is to entera decree without the intervention of a jury.</p> <p>7. The discretion of the judge in directing upon whom the costs shall fall in an equity case will not be controlled, unless abused. So abuse of discretion appears in the present case.</p> <p>8. There was some evidence to support all of the auditor’s findings of fact, and the same were approved by the trial judge ; and even if any errors of law were committed, they were not of such a nature as to require a reversal of the judgment.</p>

<p>1. A person whose occupation is that of a traveling salesman for a coal company is not within the exception in a clause of a policy of accident insurance which provides that there shall be no recovery in case the insured is injured while ‘1 walking or being on any railroad bridge o r road-bed (railway employees excepted),” merely because the duties of his occupation render it necessary that he should go upon the road-beds of railroads. The proper construction of such a clause is that the insurance is suspended during the time 'that the insured is in the position above stated.</p> <p>2. Nor will the fact that the insurance company insures railway employees at a higher rate permit a person insured as being engaged in another and less hazardous occupation, and who pays a lower rate of premium than persons classified as railway employees, to recover under a condition in the policy which provides that, “If the insured is injured in any oc- ■ cupation or exposure classed by this company as higher than the premium paidfor this policy covers, the sum insured and weekly indemnity shall. be only such amounts as said premium will purchase at the rate fixed for such increased hazard. ”</p>

<p>Complaint for land. Before Judge Candler. DeKalb • superior court. January 3, 1899.</p>

Certiorari. -Before Judge Callaway. Richmond superior court. October term, 1898. Garnishment against the Georgia Railroad Bank was issued in behalf of Hillsinger, in a suit pending in a justice's court. The bank answered, denying that it owed the defendant anything.

Quo warranto. Before Judge Brinson. Richmond county. January 30, 1899. This was a proceeding instituted for the purpose of preventing the judge of the city court of Richmond county from discharging the duties of commissioner of roads and revenues.

<p>Equitable petition. Before Judge Felton. Houston superior court. April term, 1898.</p>

<p>Where there is a dispute between the maker and payee of a promissory note-touching its validity, depending upon an honest difference of views between them on a doubtful question of either law or fact, and they enter into a compromise or settlement of their differences by an agreement to extend time on the claim and to have the same fall due by instalments; and when in accordance with this agreement new notes are given and accepted by the parties, maturing at different times, there is a sufficient consideration in law to support the validity of such notes, and the maker-thereof can not defend a suit upon them by showing that his contention in reference to the original debt was correct.</p>

<p>The controlling question in this case depending upon the admissibility of an amendment, and proof offered thereunder, setting up a parol agreement with reference to a sale of land, and it appearing from the record that a contract was finally consummated by a deed between the parties, the contents of which are not set forth in the record and a knowledge of which is necessary, in order for this court to determine the questions involved, an affirmance of the judgment of the court below necessarily follows.</p>

<p>Although this was the third consecutive verdict for the plaintiff, there being no evidence to sustain it, the trial judge did not err in granting a new trial.</p>

<p>Application for mandamus.</p>

<p>Indictment for murder. Before Judge Reese. Wilkes-superior court. February 1, 1899.</p>

<p>"When a policy of fire-insurance contains a stipulation that “unless otherwise provided by agreement indorsed hereon or added hereto,” it “shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy, ’ ’ and expressly declares that the policy is made and accepted subject to such stipulation, and also that ‘ ‘ no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto ; and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached,” Held, that a mere oral permission to the insured by the agent who issued the policy, to take out additional insurance, was not binding upon the company, and did not estop it from setting up, as a defense to an action thereon, that the insured, in violation of the terms and conditions of the policy, had in fact taken out -additional insurance on property covered by the same.</p>

<p>Complaint. Before Judge Sweat. Glynn superior court.. December term, 1898.</p>

<p>Equitable petition. Before John L. Tye, judge pro hac vice. Fulton superior court. September term, 1898.</p>

<p>Garnishment. Before Judge Reid. City court of Atlanta. November term, 1898.</p>

Action for damages. Before Judge Reid. City court of Atlanta. January 7, 1899. Pritchett sued the Western Union Telegraph Company for damages, alleging in brief that, while he' was engaged in business as a merchandise broker in the city of Atlanta, the defendant, maliciously, and intending to injure his good name and credit and induce the Postal Telegraph Cable Company to cease dealing with him, wrote and delivered to the latter company a letter as follows : “ Form No. 61.

<p>1. When a street-railway company has power under its charter to lay its track along the streets of a city, the city authorities may consent to such use of its streets by the street-railway company, although there may he no express power in the charter of the city authorizing it to grant such a privilege.</p> <p>2. The general rule is that when a municipal corporation is cre'ated it becomes vested with jurisdiction over the territory embraced within its corporate limits, and the mere fact that there has been a valuable improvement made by the county authorities on one of the streets of an incorporated city does not oust the municipality of its jurisdiction over such street. The above is true notwithstanding the street improved was, before the incorporation of the city, a part of an established public road of the county.</p> <p>3. The rulings on the admission of evidence were not erroneous. The evidence rejected, even if admissible, should not have affected the result reached ; and, considering the case as a whole, there was no error in refusing the injunction.</p>

Equitable petition. Before Judge Callaway. Burke superior court. September 1, 1898.

<p>Illegality. Before Judge Felton. Crawford superior court. October term, 1898.</p>

<p>In the trial of a suit against a railroad company for the killing of a mule by the running of its trains, where there was no evidence tending to contradict the positive testimony that the defendant’s employees could not by the exercise of all ordinary care and diligence have prevented the injury, a verdict for the plaintiff should, upon motion of defendant’s counsel, have been set aside on the ground that it was contrary to evidence.</p>

<p>Objections to return of commissioners. Before Judge Reese. Lincoln superior court. October term, 1898.</p>

<p>1. The fact that there was, between the payee of a negotiable promissory note and the bank at which the same was discounted, an agreement that the maker should be kept in ignorance that the note had been discounted, did not, without more, constitute a fraud upon the maker or warrant him in paying the note to the original payee without requiring him to produce and surrender it.</p> <p>2. It was error to direct a verdict upon conflicting evidence which would have warranted a finding contrary to that directed.</p>

<p>Equitable petition. Before Judge Hutchins. Walton superior court. August term, 1898.</p>

<p>Injunction and receiver. Before Judge Bussell. Gwinnett county. February 4, 1899.</p>

<p>Where the- grantor in a conveyance of land reserves to himself the mineral interests in the property and the grantee goes into possession of the land under such conveyance, the grantee is estopped to thereafter assert title to the mineral interests as against the grantor or his privies, there having been no notice of an adverse holding. It follows that the grantor, or those to whom he has subsequently conveyed such mineral interests in the land, can recover the same whenever held adversely by the original grantee.</p>

<p>The record disclosing no evidence tending to sustain the verdict finding for the plaintiS in fi. fa. against the ground in the affidavit of illegality alleging a want of service, the court erred in refusing a new trial.</p>

<p>The ruling of the court upon the admission of evidence was not erroneous. The evidence demanded a finding in favor of the defendants, and it was error to grant a new trial in the case.</p>

<p>Indictment for assault with intent to rape. Before Judge .Harris.- Carroll superior court. October term, 1898.</p>

<p>1. The conversion of a promissory note deposited by a debtor with his creditor as collateral security for the payment of the debt does not entitle the debtor to a credit of ’the face value of the collateral, but only to an amount which represents the actual damage which he has sustained by such conversion.</p> <p>2. A defendant who in a plea has admitted a prima facie case in favor of the plaintiff for the purpose of obtaining the opening and conclusion in the case can not, after having failed to carry the Burden thus assumed make an amendment withdrawing such admission and thus preclude the plaintiff from the right to rely upon the admission contained in the original plea; and consequently where in a given case the defendant failed to carry the burden resting upon him by the admission, there was no error in refusing to allow such an amendment and in directing a verdict against him.</p>

<p>Levy and claim. Before L. D. Moore, judge pro hac vice. Bibb superior court. November term, 1898.</p>

<p>The mere fact that a railroad company has been accustomed on a given day-in each week to sell round-trip tickets between stations along its line of road, at a rate of fare below the maximum rate fixed by law, does not entitle a person who fails to procure such a ticket, by reason of the fact that the agent is absent and the ticket-office is closed, to be carried the - round trip between such stations upon a tender to the conductor of the fare which the company has been in the past accustomed to charge. The closing of the ticket-office is prima facie evidence that the company in- ■ tended to abandon the custom, which it had a right to do; and in the ab- ■ sence of facts showing that such was not its intention, such custom can not he relied on to constitute a contract of carriage at the reduced rate which the company was formerly in the habit of charging.</p>

<p>Action for damages. Before Judge Janes. Walton superior court. August term, 1898.</p>

<p>Complaint. Before Judge Hutchins. Gwinnett superior court. December 31, 1898.</p>

<p>Levy and claim. Before Judge Kimsey. Habersham, superior court. September term, 1898.</p>

<p>Exceptions to auditor’s report. Before Judge Kimsey.. Habersham superior court. September term, 1898.</p>

<p>Complaint for land. Before Judge Gober. Cherokee superior court. September term, 1898.</p>

<p>Taking as true the plaintiff in error’s petition for removal, there were not sufficient facts set out in the declaration of the plaintiff in the court below to authorize the court to hold that the plaintiff in error was a Georgia corporation as to that part of its line where the damages were alleged to have occurred.</p>

Equitable petition. Before Judge Fite. Whitfield superior •court. April term, 1899. The original petition was against Thomas J. Peeples, his wife Martha J., and Thomas N. Peeples, Minnie Keith, John S. Patterson, William Spruill, the Manly Manufacturing Company, and Sim Watts.

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

<p>The dismissal on demurrer of a petition bars another action based on the same facts, .if in sustaining the demurrer the court necessarily “ decided upon the merits of the cause; ” nor is a second suit in such case maintainable merely becausethe plaintiff prays therein not only for the relief originally sought but for other and further relief, the right to which, however, depends upon the identical allegations set forth in the first petition.</p>

<p>1. When a bank holds a mortgage upon property which is likewise subject to a lien ior taxes that is about to be enforced by levy and sale of the property, and, through its authorized agent, agrees to advance the money to pay such taxes, on condition that another party, who was not liable for the taxes, will give a note payable to the bank for the money so advanced, under a promise that he will never be called on to pay the note hut that the proceeds of the -sale of the property realized on the mortgage will be first applied to the payment of the taxes; and when the property is thereafter sold and the bank appropriates the proceeds of the sale to the payment of the mortgage without applying any part thereof to the taxes, the bank is not entitled to recover on the note.</p> <p>2. A renewal of the note by the maker, after the sale of the property, under the same promise and without any new consideration, does not render him liable on such renewed note.</p>

<p>Petition for injunction. Before Judge Hart. Morgan county. May 30, 1899.</p>

Action for damages. Before Judge Gober. Cherokee-superior court.

<p>Complaint for land. Before Judge Gober. Cobb superior court. October 31, 1898.</p>

<p>1. The verdict rendered in the present case was the only lawful verdict that could have been returned under the evidence.</p> <p>2. Even if it be within the power of the trial judge, in the absence of express consent by both parties in the trial of an action to recover the purchase-price of machinery, the defense being that the same is defective and valueless, to allow the jury to leave the court-room and inspect the machinery, the refusal of the judge to exercise the power is not a matter for review by this court.</p>

<p>Complaint. Before Judge Fite. Dade superior court. March term, 1898.</p>

<p>Complaint. Before Judge Janes. Bartow superior court. July term, 1898.</p>

<p>Injunction. Before Judge Fite. Whitfield county. June 1, 1899.</p>

<p>1. In an action of trespass vi et armis, in which it is alleged by the plaintiff in his petition that he had title to and was in lawful possession of personal property which, without his consent and against his protest, was forcibly seized and taken from him by defendant, a written contract between the parties by virtue of which the plaintiff acquired his title is admissible in evidence in his behalf; especially is this true when the defendant in his answer to the action denies the plaintiff’s title and right of possession.</p> <p>2. When on the trial of such a case defendant relies on an alleged tender of the property made him by the plaintiff before the unlawful seizure complained of, and introduces evidence touching a proposition of compromise or settlement between the parties leading up to such tender, it is not error for the court to admit in rebuttal, in explanation of such proposition and offer to settle, testimony showing that such offer was made on account of serious defects in this property, the same having been bought by plaintiff from defendant.</p> <p>3. There was no error in the court’s refusing to allow the defendant to testify what he had received for the use of the property while the same was in possession of the plaintiff; as this would have illustrated-no issue involved in the pleadings.</p> <p>4. The fact that after the property went into possession of defendant by virtue of his forcible seizure of the same, plaintiff brought suit for and recovered the purchase-money he had paid thereon, does not bar the plaintiff of a right of action for damages growing out of such unlawful seizure of the property by defendant at the time when it was rightfully in plaintiff’s possession ; the last action being for general damages growing out of the tort, and not for the value of the property.</p> <p>5. It is not error requiring a new trial that the court omitted to charge the jury there could be no recovery for a certain element of damages mentioned in the petition, on which there was no proof; no request to do so being made, and the judge in his charge restricting the jury in their investigation only to such damages as- were covered by the evidence, and thus involved in the case.</p> <p>6. There was sufficient evidence to sustain the verdict.</p>

<p>If an attorney at law, in violation of express instructions, causes his client to be made a party to pending litigation, the latter is not bound by any judgment therein rendered, but may repudiate the same, and, if he is the only person sought to be charged thereby, may by appropriate and timely proceedings have such judgment set aside; or, if there be others upon whom it is lawfully binding, he may have it annulled in so far as it relates to him.</p>

Equitable petition. Before Judge Henry. Floyd superior ■ court. November term, 1898.

<p>Certiorari. Before Judge Henry. Floyd superior court. December 13, 1898.</p>

<p>Levy and claim. Before Judge Fite. Polk superior court. August term, 1898. ■</p>

<p>The petition set forth a cause of action, and the persons joined as plaintiffs and defendants were properly made parties to the case. It was therefore error • to sustain a demurrer in which it was set up that there was no equity in the petition and that there was a misjoinder of parties.</p>

<p>Under the circumstances disclosed by the record in this case, the verdict'of five hundred dollars in the plaintiff’s favor was excessive, and the court erred in not setting it aside on that ground.</p>

<p>Equitable petition. Before Judge Janes. Haralson superior court. July term, 1898.</p>

<p>Petition for injunction. Before Judge Reagan. Butts' superior court. June 5, 1899.</p>

<p>Illegality. Before Judge Sweat. Glynn superior court. May term, 1898.</p>

<p>Complaint. Before Judge Janes. Paulding superior court. August term, 1898.</p>

Equitable petition. Before Judge Janes. Haralson superior court. January term, 1899. This was a suit to recover the mineral interests in certain land, and for other relief, based upon a deed to the plaintiff from one Singleton, dated January 9, 1895, and recorded July 9, 1897.

<p>Quo warranto. Before Judge Butt. Dooly superior court. February term', 1898.</p>

<p>Action on contract. Before Judge Reid. City court of Atlanta. September term, 1898.</p>

<p>1. An agent with general powers has authority to use all the means usual and necessary to the proper transaction of the business entrusted to him. To this end hetnay, ordinarily, constitute another person his servant for the purpose of doing an act, or acts, the performance of which does not involve the exercise of discretion but merely obedience to the master’s orders.</p> <p>2. Under a lease stipulating for the monthly payment of a specified sum as rent, and that, “should any payment fail to be made át or within thirty days after its maturity, the lease may be terminated at the option of ” the landlord, a demand for possession of the premises, made immediately after a failure to pay a month’s rent which had been due for more than thirty days, was, in substance, an exercise of such option, although at the time of demanding the rent for that month the rent for the succeeding month, which though due had not been so for thirty days, was also demanded.</p>

<p>There was no error in sustaining the demurrer to the plaintiffs petition.</p>

<p>1. A defendant who has been served and who has had his day in court can not go behind the judgment by an affidavit of illegality for the purpose of making the question that the verdict was not authorized by the pleadings or that the judgment did not follow the verdict.</p> <p>2. Under section 4629 of the Civil Code, the plaintiff in execution in a claim case may lawfully withdraw the fi. fa. from the files of the court without an order from the judge granting leave so to do.</p>

<p>Where a deed was executed by the owner of land in 1869, conveying the same to a trustee for the use of a named adult brother, and containing a condition “that said land shall not be subject to any of the debts and liabilities of the [cestui que trust] now existing, nor shall any of the proceeds thereof be so subject, and should the said land or any part thereof, or its proceeds, be levied on by virtue of any process founded on any such debt or liability,” etc., “ then the property so levied on is to become the property of the wife and lawful children of the [cestui que trust], and if he should then have no wife or lawful children, the property so levied on is to become mine,” etc.: Held, that when, after the death of the beneficiary in possession, it was made to appear that the land so conveyed had never been levied on for any debt or liability of such beneficiary, it was correctly adjudged that the title in fee vested in his heirs at law, and this is true whether a legal trust was created, or the title vested directly in him when the deed was delivered. Such a deed was unambiguous, and parol evidence of declarations by the grantor, explanatory of its intent and meaning, was inadmissible.</p>

<p>Certiorari. Before Judge Gober. Cobb superior court, September 22, 1898.</p>

<p>The evidence demanded the verdict which was renderedJn the justice’s court, and the judge did not err in overruling the certiorari.</p>

<p>Equitable petition. Before Judge Janes. Polk superior court. December 31, 1898.</p>

Action for damages. Before ' Judge Eve. City court of Richmond county. August 31, 1898. Mary Austin sued the railway company for depreciation in the market value of her residence by the construction and operation of its railroad and' freight-yards. F.or a description of the relative situations of the premises, see the opinions following.

Complaint for land. Before Judge Gamble. Emanuel superior court. April term, 1898. The action was by the administrator and certain heirs of Absalom Gay against Charles M. Gay.

Equitable petition. Before Judge Reese. Warren superior court. October term, 1898. The only question for decision in this case was whether certain papers were testamentary or deeds. It appears that there were four of these papers, but only three of them are copied in the record. Each begins in the usual form of a deed of gift to land.

Complaint. Before Judge Smith. Dodge superior court. September term, 1898. The action was upon a promissory note containing a guaranty that certain guano for which the note was given was of “ the standard of analysis branded on each sack.” The defendant pleaded that there was a substantial difference between the true- analysis of the guano and the analysis branded on the sacks. The latter, as set out in the plea, was as follows: Moisture at 212° Fah. 10 to-20.

Action for damages. Before Judge Reid. City court of Atlanta. November term, 1898.

Complaint. Before Judge Janes. Douglas superior court. November term, 1898.

<p>Indictment for selling liquor. Before Judge Janes. Douglas superior court. December 8, 1898.</p>

<p>Indictment for selling liquor. Before Judge Janes. Douglas superior court. December 9, 1898.</p>

<p>Indictment for assault with intent to murder. Before Judge Gamble. Jefferson superior court. November term, 1898.</p>

<p>Indictment for murder. Before Judge Sweat. Wayne superior court. November term, 1898.</p>

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

<p>Indictment for rape. Before Judge Hutchins. Gwinnett superior court. September term, 1898.</p>

<p>Indictment for murder. Before Judge Sweat. Ware superior court. November term, 1898.</p>

<p>Protest to processioners’ return. Before Judge Candler. DeKalb superior court. February term, 1898.</p>

<p>Foreclosure of lien. Before Judge Felton. Bibb superior court. April term, 1898.</p>

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

<p>Complaint. Before Judge Falligant. Chatham superior court. June 10, 1898.</p>

<p>Certiorari. Before Judge Falligant. Chatham superior court. December term, 1897.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. May 21, 1898.</p>

<p>Complaint. Before Judge Felton. .Houston superior court. April term, 1898.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. May term, 1898.</p>

<p>Trover. Before Judge Ross. City court of Macon. February 25, 1898.</p>

<p>Complaint. Before Judge Ross. City court of Macon. May 4, 1898.</p>

<p>Levy and claim. Before Judge Felton. Houston superior court. April term, 1898.</p>

<p>Action for damages. Before Judge Felton. Bibb superior court. April term, 1898.</p>

<p>Petition for injunction. Before Judge Felton. Bibb superior court. August 26, 1898.</p>

<p>Equitable petition. Before Judge Sweat. Camden superior court. March term, 1898.</p>

<p>Foreclosure of mortgage. Before Judge Henry. Floyd, superior court. September 25, 1897.</p>

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

<p>Complaint. Before Judge Falligant. Effingham superior court. April 2,1898.</p>

<p>Action for damages. Before Judge Reese. Taliaferro, superior court. August term, 1898.</p>

<p>Complaint. Before, Judge Reese. Taliaferro superior court. February term, 1898.</p>

<p>Certiorari. Before Judge Reese. Hart superior court. March term, 1898.</p>

<p>Complaint. Before Judge Fite. Murray superior court. April 4, 1898.</p>

<p>Attachment. Before Judge Proffitt. City court of Elberton. July 12, 1898.</p>

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

<p>Trover. Before Judge Fite. Gordon superior court. February term, 1898.</p>

<p>Equitable petition. Before Judge Reese^. Hart superior court. March term, 1898.</p>

<p>Complaint. Before Judge Reese. Warren superior court. April term, 1898.</p>

<p>Complaint. Before Judge Reese. Hancock superior court. February term, 1898.</p>

<p>Certiorari. Before Judge Hutchins. Gwinnett superior • court. May 26, 1898.</p>

<p>Certiorari. Before Judge Fite. Catoosa superior court. April 29, 1898.</p>

<p>Levy and claim. Before Judge Kimsey. Hall superior court. February term, 1898.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. April term, 1898.</p>

<p>Complaint. Before Judge Harris. City court of Floyd county. November 15,1897.</p>

<p>Certiorari. Before Judge Butt. Chattahoochee superior court. September term, 1898.</p>

<p>Petition for injunction. Before Judge Butt. Talbot county. December 81, 1898.</p>

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

<p>Petition for alimony. Before Judge Sheffield. Terrell superior court. May term, 1898.</p>

<p>Petition for restitution. Before Judge Sweat. Glynn superior court. July 26,1898.</p>

<p>Levy and claim. Before Judge Henry. Floyd superior court. July term, 1898.</p>

<p>Complaint. Before Judge Henry. Floyd superior court. September 1, 1898.</p>

<p>Certiorari. Before Judge Harris. Carroll superior court. January 31, 1898.</p>

<p>Complaint for land. Before Judge Janes. Polk superior ' court. July 5, 1898.</p>

<p>Indictment for assault with intent to rape. Before Judge Smith. Telfair superior court. October term, 1898.</p>

<p>Indictment for riot. Before Judge Winn. City court of Gwinnett. December term, 1898.</p>

<p>Indictment for gaming. Before Judge Nottingham. City court of Macon. January 25, 1899.</p>

<p>Indictment for larceny after trust. Before Judge Fite, Catoosa superior court. August term, 1898.</p>

<p>Indictment for assault with intent to murder. Before Judge Littlejohn. Sumter superior court. November term, 1898.</p>

<p>Indictment for assault with intent to murder. Before Judge Hart. Morgan superior court. September term, 1898.</p>

<p>Indictment for assault with intent to rape. Before Judge Smith. Dodge superior court. September term, 1898.</p>

<p>Certiorari-. Before Judge Brinson. Richmond superior court. February 6, 1899.</p>

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

<p>Certiorari. Before Judge Reese. Hancock superior court. February term, 1899.</p>

<p>Indictment for court of Macon. gaming. Before Judge Nottingham. March term, 1899. City</p>

<p>Trover. Before Judge Freeman. City court of Newnan. ■October term, 1898.</p>

<p>Indictment for selling liquor. Before Judge Fite. Bartow superior court. January term, 1899.</p>

<p>Levy and claim. Before Judge Hart. Morgan superior court. September term, 1898.</p>

<p>Certiorari. Before Judge Reagan. Pike superior court. October term, 1898.</p>

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. August 2, 1898.</p>

<p>Certiorari. Before Judge Butt. Talbot superior court. September term, 1898.</p>

<p>Exceptions to auditor’s report. Before Judge Littlejohn. Sumter superior court. May term, 1898.</p>

<p>Action for damages. Before Judge Hart. Putnam superior court. September term, 1898.</p>

<p>Complaint. Before Judge Hart. Putnam superior court. September term, 1898.</p>

<p>Complaint. Before Judge Sheffield. Clay superior court. September term, 1898.</p>

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

<p>Action for damages. Before Judge Hart. Jasper superior court. September term, 1898.</p>

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

<p>Complaint. Before Judge Hart. Putnam superior court. September term, 1898.</p>

<p>Illegality. Before Judge Butt. Marion superior court. April term, 1898.</p>

<p>Levy and claim. Before Judge Littlejohn. Stewart superior court. October term, 1898.</p>

<p>Equitable petition. Before Judge Butt. Sumter superior court. January 10, 1890.</p>

<p>Injunction. Before Judge Spence. Brooks county. April 14, 1899.</p>

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

<p>Indictment for simple larceny. Before Judge Russell. Gwinnett superior court. March term, 1899.</p>

<p>Indictment for selling liquor. Before Judge Reese. Hart superior court. March term, 1899.</p>

<p>Indictment for murder. Before Judge Harris. Troup superior court. May term, 1899.</p>

<p>Indictment for murder. Before Judge Reese. 'Warren superior court. April term, 1899.</p>

<p>Indictment for murder. Before Judge Candler. Fulton superior court. March term, 1899.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. December 3, 1898.</p>

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

<p>Bail-trover. Before Judge Smith. Wilcox superior court. September term, 1898.</p>

<p>Levy and claim. Before Judge Smith. Montgomery superior court. November term, 1898.</p>

<p>Action for damages. Before Judge Smith. Dodge superior court. September term, 1898.</p>

<p>Action on insurance policy. Before Judge Lumpkin. Fulton superior court. September term, 1898.</p>

<p>Complaint. Before Judge Parker. City court of Baxley. August term, 1898.</p>

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

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. ' September term, 1898.</p>

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

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

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

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

<p>Equitable petition. Before Judge Gamble. Emanuel superior court. November 29, 1898.</p>

<p>Complaint. Before Judge Falligant. Chatham superior court. September 12, 1898.</p>

<p>Injunction and receiver. Before Judge Lumpkin. Fulton superior court. March term, 1899.</p>

<p>Complaint. Before Judge Gamble. Tattnall superior court. October term, 1898.</p>

<p>Action for damages. Before Judge Callaway. Richmond superior court. October term, 1898.</p>

<p>Action for damages. Before Judge Felton. Houston superior court. October term, 1898.</p>

<p>' Petition for injunction. Before Judge Reese. Elbert superior court. March term, 1899.’</p>

<p>Complaint. Before Judge Norwood. City court of Savan- ■ nah. January 9, 1899.</p>

<p>Action for damages. Before Judge Felton. Houston superior court. October t'erm, 1898.</p>

<p>Action for damages. Before Judge Felton. Houston superior court. October term, 1898.</p>

<p>Motion to open default. Before Judge Henry. Floyd superior court. November 22, 1898.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. December 20, 1898.</p>

<p>Complaint. Before Judge Fite. Dade superior court. September 20, 1898.</p>

<p>Complaint. Before Judge Candler. DeKalb superior court. January 4, 1899.</p>

<p>Money rule. Before Judge Felton. Bibb superior court. November term, 1898.</p>

<p>Certiorari. Before Judge Hutchins. Jackson superior cpurt. August term, 1898. •'</p>

<p>Complaint. Before James M. Towery, judge pro hac vice. City court of Hall county. September 12, 1898.</p>

<p>Equitable petition. Before Judge Kimsey. Habersham superior court. December 29, 1898.</p>

<p>Complaint. Before Judge Gober. Cobb superior court. September 29, 1898.</p>

<p>Action for damages. Before Judge Gober. Cobb superior court. September 22, 1898.</p>

<p>Exceptions to auditor’s report. Before Judge Reid. City court of Atlanta. September 13, 1898.</p>

<p>Action for damages. Before Judge Henry. Pickens superior court. September term, 1898.</p>

<p>Action for damages. Before Judge Reese. Taliaferro superior court. August term, 1898.</p>

<p>Certiorari. Before Judge Fite. Whitfield superior court. October term, 1898.</p>

<p>Action for 'damages! Before Judge Fite. Whitfield superior court. October term, 1898.</p>

<p>Attachment. Before Judge Fite. Gordon superior court. August term, 1898.</p>

<p>Petition for quo warranto. Before Judge Henry. Floyd county. March 28, 1899.</p>

<p>Action for damages. Before Judge Ross. City court of-Macon. August 17, 1898.</p>

<p>Complaint. Before Judge Fite. Dade superior court. March term, 1898.</p>

<p>Certiorari. Before ■ Judge Falligant. Effingham superior court. November term, 1898.</p>

<p>Petition to set aside judgment. Before Judge Henry. Floyd superior court. October 17, 1898.</p>

<p>Complaint. Before Judge Butt. Harris superior court. October term, 1898.</p>

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

<p>Action for damages. Before Judge Gober. Cobb superior court. October 31, 1898.</p>

<p>Complaint. Before Judge Eve. City court of Richmond county. August 13, 1898.</p>

<p>Appeal. Before Judge Gober. Talbot superior court. December 15, 1898.</p>

<p>Equitable petition. Before Judge Smith. Wilcox superior court. March term, 1898.</p>

<p>Exceptions to auditor’s report. Before Judge Kimsey. Habersham superior court. September term, 1898.</p>

<p>Certiorari. Before Judge Felton. Crawford superior court. October term, 1898.</p>

<p>Dismissal of motion for new trial. Before Judge Fite. Gordon superior court. December 31, 1898.</p>

<p>Certiorari. Before Judge Fite. Paulding superior court. August term, 1898.</p>