Volume 109 — Georgia Reports

<p>1. While a valid contract of insurance can not lawfully be taken on the life of another by one who has no insurable interest therein, because it contravenes public policy, yet, as one has an insurable interest in his own life, he may lawfully procure insurance thereon for the benefit of any other person whose interest he desires to promote. Such a contract can not be defeated because of the want of insurable interest in the beneficiary, when it appears that the person whose life was insured acted for himself, at his own expense and in good faith, to promote the interest of the beneficiary, in taking out the policy. A contract so entered into is in no sense a wagering or speculative one. Lumpkin, P. J., dissenting.</p> <p>2. A contract entered into by a benefit society with a member is executory,, and its terms will be ascertained from the certificate issued .to the member, in connection with the charter and laws of the society, subject to the law of the State under which it was created; and if nothing exists which restricts the appointment of a beneficiary to receive the benefit fund, the member may, at the time he executes the contract, legally designate whomsoever he pleases as beneficiary, and his right to do so can not be questioned.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. January term, 1899.</p>

<p>Action for damages. Before Judge Reese. Elbert superior court. September term, 1899.</p>

<p>Presumptively, one who signed as surety a promissory note which had been previously signed by two other persons apparently as joint principals undertook to contract as surety for both of these persons, and the burden of showing that one of them was himself a mere surety for the other, and that the last signer so knew at the time of signing the paper, was on him who asserted that such was the fact.</p>

<p>1. Even if, in order to invest an infant of tender years with the title to land, it may not he absolutely essential that there should be in every instance a manual delivery to such infant himself, or to a third person as his agent, of a voluntary conveyance in which he is named as grantee, yet no effect can be given to an instrument of that character which the maker thereof, after signing and acknowledging in the presence of witnesses, retains in his own custody, in the absence of satisfactory proof that it was his intention that such instrument should operate to immediately convey to the infant grantee the legal title to the premises therein described. In the case at bar, the charge of the court upon this subject was certainly as favorable to the plaintiff as he had any right to expect; and, under the facts and circumstances disclosed by the evidence, a finding in favor of the opposite party was fully warranted.</p> <p>2. The doctrine that recitals in a deed are binding upon the parties thereto and their privies has no application whatsoever to the facts of the present case,.and accordingly can not be invoked to overcome the defendant company’s defense that it held under a third person who, subsequently to the execution of the voluntary deed relied on by the plaintiff, in good faith and without notice thereof bought the premises from his grantor, and therefore acquired all the rights of a bona fide purchaser for value.</p> <p>.3. As has been repeatedly ruled by this court, to defeat a plaintiff in ejectment, the defendant need only show a paramount title outstanding in a third person, without going further and connecting his own possession with that title.-</p>

<p>1. When by the terms of a will real and personal property is given to the wife for life with remainder to the children of the testator, a power conferred on the executrix, who was the wife of the testator, to sell any or all of the property devised and reinvest the proceeds, expressed in language which plainly and unequivocally limits the purpose for which any sale can be made to that of reinvestment only, does not, notwithstanding the will may contain broad and liberal provisions as to the manner in which this power may be exercised, empower the executrix to mortgage the property devised, nor to convey the title of such property as security for a debt created by her.</p> <p>2. When, after expressly conferring such a power, the will also declares that “ no part of the corpus of said estate is to be spent unless in the judgment of my said wife the same shall be necessary for the proper maintenance and education of my minor children,” nothing more than an implied authority to use a portion of the corpus, if necessary for the maintenance and education of the testator’s minor children, is given. The language quoted can not be construed so as to confer upon the executrix authority to borrow money for any purpose.</p> <p>3. The court erred in holding that the will authorized the executrix to borrow money and secure the same by a mortgage on property of the estate, and in appointing a receiver, and granting the injunction.</p>

<p>1. An indictment which simply charges the accused with a misdemeanor, in that he, on a day named, in a designated county, did “unlawfully sell spirituous and intoxicating liquors, contrary to the laws of said State,” etc., in effect charges him with violating a law prohibiting and making penal the sale of liquors in that county ; and if there be no such law, it charges him with no offense at all. Upon a trial under such an indictment, no matter what the evidence may be, the accused can not legally be convicted of a violation of a statute prohibiting and making penal the sale of such liquors within three miles of a designated church in such county, nor of a violation of a statute regulating the granting of licenses to sell intoxicating liquors hy the ordinary of the county and providing a penalty for a violation of its provisions, nor of the offense of selling liquor without a license.</p> <p>2. The act of February 27,1877 (Acts of 1877, p. 33), making lawful, in any county of this State, the sale of domestic wines, in quantities of not less than one quart, by the manufacturers of the same, being a general law, and such wines being “intoxicating liquors,” a subsequent act which by its terms undertakes to “ prohibit the sale and furnishing of spirituous, malt, or intoxicating liquors,” within the limits of a designated county, is unconstitutional. Little and Lewis, JJ., dissenting.</p>

<p>Indictment for selling liquor. Before Judge Janes. Paulding superior court. August term, 1899.</p>

<p>One indicted and tried under air unconstitutional statute may, even after final conviction, obtain his discharge from custody on a writ of habeas corpus. Lotus and Lewis, JJ., dissent on the ground that, in their opinion, the statute in question is not unconstitutional.</p>

<p>When by the terms of an act the president of a building and loan association is required to return to the tax-receiver of the county where such association is located, at its true market value, the stock owned by the stockholders thereof upon which no advance has been made, the tax so imposed is not a tax against the corporation, but is against the property of the individual holders, and is a plan adopted by the legislature to conveniently reach this class of stock in the hands of the owner, and is not imposed as a franchise, but a property tax. When the same act provides that the taxes so required shall be in lieu of all other taxes and licenses, whether State, county, or municipal, against said associations (except a business license), the latter provision is inoperative and void, and is in violation of the constitutional provision requiring all taxation to be uniform and ad valorem.</p>

<p>A tax imposed by a municipal corporation on the gross premiums of an insurance company doing business in the city where the tax is imposed is not a property tax in the sense of the constitution, so as to require the ad valorem system to be applied. While by a municipal ordinance a tax on the gross premiums of an insurance company doing business in the city, at a given rate per cent., may be lawfully imposed if the authority to do so be clearly given, an ordinance which by its terms only imposes such tax on non-resident companies, and expressly excludes resident companies from its operation, is void for the want of the uniformity required by the constitution.</p> <p>A license tax of a given sum. imposed upon every agent of a fire or life-insurance company is payable by an agent of an association whieh has no capital stock but insures the lives of its members under the assessment' plan, and this is true notwithstanding such agent is the employee of the company and does not represent any other company.</p>

<p>Petitions for injunction. Before Judge Lumpkin. Fulton superior court. October 21, 1899.</p>

<p>When tlie petition in an action against a railway company for damages ah leged to have been sustained by the plaintiff’s unlawful expulsion from a train insufficiently describes the ticket presented to the conductor as the evidence of the former’s claim of a right to passage, it is erroneous to overrule a special demurrer properly pointing out the defectiveness of the petition in this respect. Fish and Lewis, JJ., dissenting.</p>

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

<p>Certiorari. Before Judge Smith. Pulaski superior court. August term, 1899.</p>

<p>1. A disabled or indigent Confederate soldier holding the proper certificate from an ordinarymay,exceptas to those kinds of business in which he is not by virtue of such certificate authorized to engage, lawfully conduct as many lines of business ashe is able to carry on in his own name and upon his own account, without paying to any municipal corporation a license tax upon any particular business so carried on or upon any subordinate branch thereof.</p> <p>2. An agent, servant, or employee of a Confederate soldier lawfully operating under such a certificate is not amenable to a city ordinance imposing a penalty for “doing business -without license.”</p>

<p>1. A written contract for the dissolution of a partnership between two persons, wherein it was, among other things, stipulated that in consideration of a specified sum to be paid by one to the other within a stated number of days the latter agreed to transfer his interest in the firm and its assets to the former, who was to execute to the seller “ a thirty-day op- ' tion to purchase the business ” at a designated price, was apparently ex-ecutory, and certainly did not by its terms operate to immediately effectuate the contemplated dissolution. In order for it to have this effect, it was, in any event, essential that both parties so understood and intended.</p> <p>2. If shortly after the execution of such a contract, and before payment, in full to the selling partner of the price agreed upon for his interest in the partnership, a debtor thereof, voluntarily and without solicitation, paid to him a sum due the firm, a proper determination of the question whether or not he received this money in the belief that it was still his right, as a member of the firm, to make the collection, would depend largely upon his understanding of the true intent and meaning of the contract with reference to the time when the dissolution was to take effect.</p> <p>3. Accordingly, the mere facts that such a contract had been executed, and that the partner who thereby agreed to sell out had received money’due the firm as above indicated, would not of themselves warrant the conclusion that in so doing he acted with a fraudulent intent, nor justify a jury in convicting him of a larceny of the money, even though he might, after receiving the price of his interest in the partnership and after signing another instrument by which the dissolution was unquestionably accomplished, have failed topay over or account for the sum so- collected.</p> <p>4. Some of the instructions complained of in the motion for a new trial were out of harmony with the rules above laid down, and therefore erroneous. For this reason, and upon a general view of entire case as presented by the record, there should be another trial.</p>

<p>Indictment for carrying liquor to church. Before Judge Reagan. Monroe superior court. August term, 1899.</p>

<p>Indictment for voluntary manslaughter. Before Judge Spence. Miller superior court. April term, 1899.</p>

<p>Accusation, of cheating and swindling. Before Judge Williams. City court of Waycross. June'term, 1899.</p>

Indictment for assault with intent to murder. Before Judge Brinson. Richmond superior court. April term, 1899. The plaintiff in error was indicted for and convicted of the offense of assault with intent to murder. He made a motion for a new trial, on various grounds, which being overruled, he excepted. Only two witnesses testified in the case, both of whom were introduced by the State. One of these testified as follows: Witness was a baggage-master on the Georgia Railroad.

<p>1. One may be an accessory before the,fact to the offense of wilfully and maliciously setting fire to and attempting to bum a house which may be the subject-matter of the crime of arson.</p> <p>2. Such a house is sufficiently described in an indictment averring that it was “a certain guard and jail house ” in a named village, and was the property of that village.</p> <p>S. On the trial of one charged with being an accessory before the fact to the commission of a particular crime, evidence .tending to show that the accused had a motive for desiring this crime to be committed, and that he had actually endeavored to induce one other than the person named in the indictment as principal to commit it, was admissible for the State.</p> <p>4. On such a trial, the’free and voluntary declarations or admissions of the alleged principal are admissible to show his guilt; but neither' declarations nor admissions of an alleged principal which merely tend to incriminate the alleged accessory are admissible against the latter, if made after the completion of the criminal enterprise.</p> <p>5. A charge which gave to evidence of the character last indicated in the preceding note the same effect as the sworn testimony of an accomplice was erroneous.</p>

<p>1. In a trial under an indictment for murder, it" is the duty of the presiding judge to give in charge to the jury the law relating to voluntary man- ' slaughter when there is any evidence which would support a verdict for that offense. In' the present case, while much of the evidence tended to show that the homicide might have been legally graded as murder, yet there was ’evidence which, if credible, might reduce the offense from murder to voluntary manslaughter. The court,therefore, properly charged the law relating to voluntary manslaughter, and the jury having returned a verdict finding the defendant guilty of that offense, it can not be said that such verdict was contrary to the law or the evidence in the case.</p> <p>2. A charge in the following words, “On the other hand, if you are satisfied, after a careful consideration of all the evidence in the case, testimony and other sources of information,” etc. (as to the guilt of the defendant), might, if standing alone, authorize the inference that the jury in making their verdict could regard other sources of information than the evidence and the statement of the accused; but when it appears by reference to the entire charge that the jury were repeatedly instructed in arriving at their verdict to only regard the evidence in the case and the statement of the prisoner, it is not cause for a new trial that such inference might be drawn from this detached portion of the charge. Taking the whole charge together, the words, “other sources of information,” could not be fairly understood as applying to anything except the prisoner’s statement.</p> <p>3. When a new trial of a criminal case is asked on the ground that one of the jurors who tried the case was not a fair and impartial juror, and in support of such ground an affidavit of only one person is presented tending to show that prior to the trial the juror made statements showing that he was prejudiced against the defendant, anew trial, without more, will not be ordered. The juror, having qualified on his voir dire is to be presumed to have rightly done so until the contrary is shown by more than one witness.</p> <p>4. The grounds of the motion for new trial not dealt with above present no sufficient cause for a reversal of the judgment.</p>

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

<p>Indictment for murder. Before Judge Smith. Montgomery superior court. April term, 1899.</p>

<p>Indictment for seduction. Before Judge Henry. Floyd superior court. July term, 1899.</p>

<p>Averments in an affidavit attached to a petition for certiorari, that the same is not filed for delay, and that the affiant believes he has good cause for certiorari, necessarily mean that the petition is not filed for delay “ only,” and that the affiant “verily” believes his petition is meritorious. The omission, therefore, from such an affidavit of the above-quoted words does not afford cause for dismissing the certiorari “on account of the insufficiency of the affidavit of the petitioner.”</p>

<p>1. It was error to admit in evidence, against one on trial for a criminal offense, a declaration made by his wife in his presence before the offense was committed, the same being offered as tending to show a threat on his part, when the language used by the wife was not affirmatively approved by him, and’was not such as to call for a disclaimer by him of any criminal intent or purpose.</p> <p>2. When the evidence as to threats introduced on the trial of one charged with a crime is by no means clear or satisfactory, it is error for the court to instruct the jury that evidence has been introduced “tending to show threats.”</p> <p>3. After specifying the three statutory methods prescribed in the code for impeaching witnesses, it was error for the court to instruct the jury that it was their duty to believe a witness who had not been impeached by some of these designated methods, there being other legal ways in which a witness may be discredited.</p> <p>'4. In the trial of a criminal case where the State relied upon evidence of an accomplice and claimed that it had been corroborated, it was error for the court to charge the jury as follows: ‘ ‘ Slight evidence that the crime was committed by the defendant and identifying him with it will corroborate the accomplice and warrant a finding of guilty.”</p> <p>5. The grounds in the motion for a new trial not dealt with above are without merit, there being no error of law committed except as above indicated.</p>

<p>Bill of exceptions. Practice in the Supreme Court.</p>

<p>A railroad company is not liable for damages for a personal injury to a boy' more than seven years old, when the evidence shows that the boy was running along a path six feet from the track, with a rope tied around him and trailing behind, and that, after the engine and half of the train had passed him, the rope was by some means drawn under the train and the boy pulled thereunder and injured. Such an occurrence was an accident which could not have been guarded against by any reasonable degree of diligence on the part of the servants of the company.</p>

<p>Complaint. Before Judge Janes. Haralson superior court. January term, 1899.</p>

<p>Though an order setting a motion for a new trial for a hearing in vacation and directing that “the brief of evidence be presented for approval on or before the date aforesaid, or in default thereof the motion will be dismissed,” may confer upon the judge authority to approve the brief at the hearing; and though in case of such approval this action of the judge may be treated as the equivalent of filing the brief in the clerk’s office, yet where the judge distinctly declines to approve the brief at the hearing and dismisses the motion on the ground that the brief of evidence was not duly filed in the clerk’s office,.the judgment will not be reversed.</p>

<p>'When a motion for a new trial was duly filed and the court passed an order in effect allowing the movant until the hearing of the'motion to obtain the judge’s approval of the brief of evidence', it was erroneous to dismiss the motion merely because the brief, which had within the time prescribed by law been filed in the clerk’s office, was not presented for approval before the hearing.</p>

<p>1. The mere fact that a magistrate who tried a case entered upon a certiorari bond a certificate that the costs in the case had been paid is not, without more, sufficient evidence of his approval of the bond to warrant the clerk of the court to issue the writ of certiorari.</p> <p>2. The certiorari having been issued'in the absence of a duly approved bond, the writ was void, and the motion to dismiss the same ought to have been sustained.</p>

<p>1. A contract by a manufacturing corporation to deliver to an individual its products at specified prices and to purchase from him designated agricultural products at so much per bushel, it being in contemplation that he would sell the former at an advance and purchase the latter for less than he was to receive therefor, but which designated no quantity either of the manufactured goods or of the agricultural products, was not broken until the individual ordered goods of the corporation or offered products to it and it thereupon failed to comply with the terms of its agreement.</p> <p>2. The evidence introduced to sustain the plea failed to establish the allegations thereof, and consequently the court did not err in directing a verdict against the defendant, the plaintiff having made out a prima facie case.</p>

<p>Levy and claim. Before Judge Janes. Haralson superior court. July term, 1899.</p>

<p>1. A plea by a defendant that the note sued on “ does not appear as it did when it was signed, having been altered by marking and scratching over the same with pen and ink,” and that he did not execute the note “in the shape it now is,” is not such a plea of non est factum or of alteration as to put on the plaintiff the burden of proving the execution of the note by the defendant.</p> <p>2. The evidence demanded the verdict for the plaintiff, and the trial judge did not err in so directing.</p> <p>3. Damages are awarded for bringing this case to the Supreme Court for delay only.</p>

<p>Contested election. Before Judge Harris. Coweta superior court. March term, 1899.</p>

<p>Application for administration — appeal. Before Judge Harris. Carroll superior court. October term, 1898.</p>

<p>Under the provisions of the code, administration upon an alleged unrepresented estate can not be vested in the clerk of the superior court, when the decedent left no estate at all.</p>

<p>1. In order to render an award a “statutory,” as distinguished from a “ common-law,” award, there must be strict compliance with the statutory provisions by virtue of which an award may be made the judgment of a court. A submission to two arbitrators, with power to select an umpire only in the event of their disagreement, followed by an award signed by one of these two and an umpire, does not amount to such compliance, and such an award is not a statutory one.</p> <p>2. Inasmuch as an award is vitiated by nothing save fraud, accident, or mistake, and therefore not by a mere error of judgment on the part of the arbitrators, either as to the law or the evidence, an award can not be set aside as being contrai’y to evidence if there is any evidence to sustain it.</p> <p>S. There was, in the present case, ample evidence to support the verdict, whereby the jury in effect found that the award was correct and that there was no fraud, accident; or mistake on the part of the arbitrators ; and damages are awarded against the plaintiff in error for bringing the case to this court for delay only.</p>

<p>1. A witness can not be impeached by proving contradictory statements previously made by him as to matters not relevant to his testimony and to the case.</p> <p>2. The amendment in the present case offered by the plaintiff during the argument was properly allowed. It was subject neither to the objection that it was “too late,” nor that it set up a cause of action different from that set forth in the original petition. The only effect of the amendment was to adjust tlie pleadings to. the case made by the evidence already before the jury.</p> <p>3. In a case where one of the controlling issues was whether a note made by two persons had been settled by the making and delivery of a not© signed by one only of these persons, which note was still unpaid, and the evidence upon this issue was directly conflicting, a charge, “ that the giving of a note in lieu of an old one is not payment of the old one until the new one is paid, unless there is an express agreement that it shall be,” was inapplicable and so misleading as to require the granting of a new trial.</p>

<p>Certiorari. Before Judge Harris. Carroll superior court. April term, 1899.</p>

<p>1. One who seeks under the constitution of 1877 to have an exemption on the ground that he or she has “ the care and support of dependent females ” must apply for the exemption out of his or her own property. Neither a wife nor a widow can, under this clause of the constitution, exempt property belonging to the husband or his estate.</p> <p>2. Were it otherwise, there can be no dependency on a person who is dead, and the homestead would not survive for a beneficiary coming under this clause of the constitution after the applicant for the homestead had ceased to live.</p> <p>3. A homestead allowed to a widow out of her husband’s estate for the benefit of herself and minor beneficiaries ceases when the widow dies and the minors arrive at majority.</p> <p>4. Though a widow, in applying for a homestead out of her deceased husband’s property, may include in the list of beneficiaries adult daughters, they do not become beneficiaries of the homestead, and, after the death of the widow and the arrival of the minor beneficiaries at age, the fact that such adult females were attempted to be included in the application does not render it a subsisting homestead.</p>

<p>Illegality — appeal. Before Judge Reagan. Butts superior court. March 18, 1899.</p>

<p>1. The fact that one in whose favor a judgment has been obtained is a minor does not prevent the dormancy statute from running against such judgment.</p> <p>2. If a judgment in favor of a minor becomes dormant during his minority, he is entitled to bring an action upon the same at any time within three years after his legal disability is removed.</p> <p>3. Where a judgment obtained by several persons, some of whom are minors, is not divided into separate parts in favor of the respective plaintiffs therein, but is for one entire sum in favor of all of them, if it becomes dormant, the time prescribed by law within which suit may be brought upon a dormant judgment does not begin to run against any of them until the disability of each of such minors has ceased to exist.</p>

<p>1. The judgment sought to be amended was dormant, but not dead.</p> <p>2. A judgment which, although dormant, still survives as a debt of record, enforceable by suit, may be so amended as to cure a mere irregularity therein.</p> <p>Simmons, C. J., and Little, J., dissenting. A dormant judgment can not be amended until it has been revived as prescribed by law.</p>

<p>The due and unresisted foreclosure of a chattel mortgage, followed by a regular sale of the mortgaged property under the mortgage execution, concludes the mortgagor, as to the property sold, from setting up any defenses, including usury, which he might have set up by counter-affidavit; and is also binding upon him as the head of a family, so as to estop him, as such, from setting up that a waiver of homestead contained in the mortgage was void because of alleged usury in the debt it was given to secure.</p>

<p>Money -rule. Before Judge Estes. Butts superior court. July 24, 1899.</p>

<p>1. A writ of error will not be dismissed upon the ground that the trial judge caused the clerk to alter a marginal note entered by the former upon a motion for a new trial, when the alleged alteration was not of a character to affect the merits of the case here.</p> <p>2. The mere fact that the sheriff officially attested such a bond as that prescribed in section 2766 of the Civil Code would not make the same a binding contract upon the parties whose names were thereto signed. His acceptance of it would be essential to giving it this effect.</p> <p>S. The charge complained of was, at least, susceptible of a construction contrary to what is above laid down, and was calculated to mislead the jury. For this reason, and in view of the evidence in the record, the verdict in the plaintiffs’ favor should have been set aside.</p>

<p>A brewing company which paid to the State a tax of ?200 for the year 1897 did not, by establishing in a county other than that in which its plant was located an agency for the sale of beer manufactured by it and selling thereat such beer during that year, become liable to the State for any additional tax; nor was its employee in charge of such agency subject to State taxation for that year as a dealer in beer.</p>

<p>1. Under the constitution of this State (art. 6, sec. 7, par. 2, Civil Code, § 5856), defining and limiting the jurisdiction of justices of the peace, a justice’s court has no jurisdiction in actions of trover. This question was not involved in James v. Smith, 62 Ga. 345, and consequently what was there said concerning it was obiter.</p> <p>2. This case turns on the ruling above announced, and, in view thereof, the presiding judge erred in sustaining the certiorari.</p>

<p>Bail-trover. Before Judge Lumpkin. Fulton superior court. March term,. 1899.</p>

<p>1. A debtor may in this State execute an absolute deed to his creditor for the purpose of securing a debt, without receiving from the creditor a bond to reconvey the property described in the deed upon payment of the debt.</p> <p>2. Upon failure of the debtor to pay the debt at maturity, the creditor may institute suit thereon and may pray for and obtain a special judgment subjecting the property described in the deed to the payment of the debt.</p> <p>3. In answer to a plea of non est factum it is only necessary for the plaintiff to make out a prima facie case of the execution of the instrument sued on, in order to authorize its admission in evidence.</p> <p>4. A deed which recites that it was made “for and in consideration of-dollars” is not inadmissible in evidence‘merely because the particular number of dollars is not expressed in the consideration clause.</p> <p>5. In the present case the evidence was sufficient to show that the deed introduced in evidence was given to secure the payment of the note sued on.</p> <p>6. On the trial of an action upon a promissory note, brought by the personal representative of a deceased payee, in which a plea of non est factum has been filed by the defendant, he is an incompetent witness to testify that alterations in the note were made after the execution and delivery of the same to the payee.</p>

<p>A debt barred by the statute of limitation will not be revived by a promise in writing which does not plainly and unmistakably refer to the debt in question.</p>

<p>1. Bills of lading belong in the class of written contracts and come within the rule which prohibits the introduction of parol evidence to contradict or vary their terms.</p> <p>2. When under the terms of a contract for carriage a carrier obligates itself to carry freight to one of the termini of its railroad and there deliver the same to a connecting line of railroad or steamers, to be transported to destination, evidence of a parol representation that the freight would be delivered to a connecting railroad and not to a steamer is inadmissible to vary the terms of the written agreement; and if in fact such goods were delivered to a carrier by water and transported to destination and placed in' the warehouse of such carrier by water, subject to the order of the consignee, such goods were not in fact at that time “lost” so as to afford a right of action in favor of the consignor against the initial carrier for failing to trace such freight, under the terms of section 2318 of the Civil Code, as lost goods.</p>

<p>Complaint for land. Before Judge Seabrook. Wilkinson superior court. April term, 1899.</p>

<p>Complaint. Before Judge Hart. Laurens superior court. July term, 1899.</p>

<p>1. When a year’s support in lands is set apart for a widow and a minor daughter, the title vests in the widow and the minor, but the widow has the exclusive control and management of the property. A guardian appointed for the minor has no right, as guardian, to demand or to receive the interest of the daughter in the lands set apart or her portion of the rents and profits of such lands.</p> <p>2. If the guardian should marry the widow and, as the agent of the latter, take possession and control of the lands and from the proceeds thereof support and educate the daughter, the latter can not, after her marriage and majority, maintain an action against him, as guardian, for the unexpended balance of such proceeds.</p>

<p>Motion to transfer to docket of next term.</p>

<p>Accusation of larceny from the house. Before Judge Calhoun. Criminal court of Atlanta. September term, 1899.</p>

<p>The only person indictable under section 420 of the Penal Code, for thé running of a freight or excursion train on the Sabbath day, is the superintendent of transportation, or the officer having charge of the business of that department of the railroad company. Accordingly, where an excursion-train was run on the Sabbath day by order of the superintendent of transportation, he alone having authority to give the order, a trainmaster who, in pursuance of such instruction, merely directed the “ making up ” of the train, selected its crew, and provided whatever was necessary for its safe and proper running, was not guilty of a violation of such section.</p>

<p>Indictment for forgery. Before Judge Henry. Floyd superior court. July term, 1899.</p>

<p>Complaint for land. Before Judge Littlejohn. Taylor superior court. October term, 1898.</p>

<p>1. There was ample evidence to show that the defendant was guilty as charged, and his conviction was not contrary to law. »</p> <p>2. A challenge to the array is an objection to all of the jurors collectively, because of some defect in the panel as a whole. If for any reason the impartiality of any one or more of the jurors whose names appear on the panel is suspected, the proper method of determining the state of feeling of such juror or jurors is by a challenge to the polls, and when thus challenged they may be put on their voir dire. And this is the rule not only in the trial of criminal cases where the charge amounts to a felony, but in the trial of misdemeanors as well.</p>

<p>Indictment for murder. Before Judge Henry. Floyd superior court. July term, 1899.</p>

<p>Indictment for vagrancy. Before Judge Reese. Hart superior court. September term, 1899.</p>

<p>Levy and claim. Before J. H. Worrill, judge pro hac vice. Taylor superior court. January 18, 1899.</p>

<p>An execution against S. J. W. as agent for Mrs. M. W. is against S. J. W. alone, the words, “as agent for,” etc , being merely descriptio personae. Where such an execution is levied and a claim is filed by S. J. W. in his own right, the claim should be dismissed, as only a third person not a party to the execution can interpose a claim.</p>

<p>Where a bill of exceptions was on May 6, 1898, returned by the judge to the plaintiff in error for correction, and the same was not finally presented for the certificate of the judge until September 3, 1898, the delay was unreasonable and inexcusable, and the writ of error should be dismissed.</p>

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

<p>That a married woman in writing consented to and approved a security deed executed by her husband, conveying land to which he had title, did not estop her from subsequently setting up that this deed was void for usury, she having, before the bringing of an action against her husband on the secured debt, taken a conveyance of the land from him and having filed a claim thereto in resistance to a levy made at the instance of the holder of the security deed after obtaining judgment against the husband.</p>

<p>When the charter of a city distinctly specifies the manner in which the municipal authorities shall contract in its behalf, a petition which in loose and general terms alleges that “the city” employed plaintiff to do a certain thing, and which does not set forth the terms of the alleged contract with him, or contain allegations showing that such contract was in fact made in the manner prescribed by the charter, is demurrable.</p>

<p>Levy and claim. Before Judge Butt. Muscogee superior court. May term, 1899.</p>

<p>Ejectment. Before Judge Spence. Marion superior court. April term, 1899.</p>

<p>1. After a judgment has been rendered in favor of one merely described as “administratrix,” without adding the name of any person as intestate, it is too late fora claimant of property levied on under such judgment to attack the same on the ground that the plaintiff therein was a foreign administratrix and had not filed a copy of her letters of administration in the clerk’s office before bringing suit. Indeed, such a judgment is really one in favor of the individual so described, and not in her favor in any representative capacity.</p> <p>2. Though a judgment may give to the plaintiff therein a special lien upon described realty to which under the pleadings she was not entitled, this affords no cause for dismissing the levy upon that realty as the property of the defendant in the execution issued- upon such judgment, when it appears that the same embraced not only the special lien but also a general lien on all the property of that defendant.</p> <p>3. Upon the questions of usury involved this case upon its undisputed facts is controlled by the decisions of this court in Hughes v. Griswold, 82 Ga. 299, and Stansell v. Georgia Loan Co., 96 Ga. 227.</p>

<p>Exceptions to auditor’s report. Before Judge Butt. Talbot superior court. March term, 1899.</p>

<p>A payee of a non-negotiable paper does not become liable thereon as an indorser merely by writing his name on the back of it, but proof may be made of the actual agreement under which the indorsement was made. If the agreement was that he should be responsible for its payment, such agreement, if for a sufficient consideration, may be enforced.</p>

<p>1. It being legally possible for the owner of realty to sell and convey it to another at an agreed cash price, and at the same time secure the right to repurchase, and become bound so to do, at a higher price payable in the future, the law will enforce such a transaction when actually made.</p> <p>2. Though the transaction now under review in many respects very closely resembled a mere loan of money at a usurious rate of interest, secured by a deed to land, yet as there was direct and positive evidence warranting the special findings of factto the effect that it was a bona fide case of bargain and sale with a contemporaneous agreement by the vendee to resell to the vendor, and a binding contract by the latter to repurchase, the verdict must be allowed to stand.</p> <p>3. The requests to charge were substantially covered by the general charge given to the jury; and the instructions complained of, construed in the light of that charge, afford no cause for a new trial. Indeed, it is manifest that the jury clearly understood and deliberately, passed upon the issues presented by the evidence.</p>

<p>Equitable petition. Before Judge Sheffield. Early superior court. October term, 1898.</p>

<p>Action for damages. Before Judge Butt. Sumter superior court. November term, 1898.</p>

<p>1. The sureties on a constable’s bond are not liable for his failure to levy and sell under an execution, when the judgment on which the execution was founded was dormant when placed in his hands.</p> <p>2. Receipts of payments entered on an execution by the plaintiff therein are not such entries as will prevent the judgment from becoming dormant.</p>

<p>Complaint. Before C. C. Duncan, judge pro hac vice. Dooly superior court. September term, 1898.</p>

<p>1. One who contracted, for a stipulated commission, to obtain for another a loan of money to be secured by a mortgage upon land belonging to the latter, is not entitled to compensation for services rendered in-finding a person willing and ready to make the desired loan on condition that the applicant therefor had a good title to the land in question, when it appears that the latter in fact had such a title, and that the loan was refused because of an alleged cloud thereon which was'.in law no cloud at all.</p> <p>2. Applying the above rule to the undisputed facts of the present case, the verdict was right and ought to stand, whether the charges complained of were correct and applicable or not.</p>

<p>A contract between husband and wife made with the intention of promoting a dissolution of the marriage relation existing between them is contrary to public policy, illegal and void, and will not, after the husband’s death, bar the widow’s right to a year’s support and dower.</p>

<p>The act proved in this case did not constitute a violation o£ so much of section 390 of the Penal Code as makes criminal a “ notorious act of public indecency.” To render any act notorious and public it must have been committed at a place where it might have been seen by more than one person.</p>

<p>It is indispensable to the rendition of a valid and binding judgment against a garnishee, condemning a debt which he owes to the plaintiff’s debtor, that the situs of the debt should be within the jurisdiction of the court. As a general rule the situs of a debt is at the place where the creditor is domiciled.</p>

<p>1. When a case in a justice’s court is appealed to and tried by a jury in that-court, and the losing party carries it by certiorari to the superior court, no ruling made by the magistrate in the trial from the result of which 'the appeal to the jury was taken can be reviewed by the superior court.</p> <p>2. Where in a petition for certiorari it is aMeged that the magistrate erred in overruling certain specified objections to the introduction in evidence of the depositions of a named witness, and the answer of the magistrate, which is not excepted to, while stating that objections were made to such depositions and overruled, fails to disclose that these objections were those set forth in the petition, or what they were, such assignment of error can not be considered by the reviewing court.</p> <p>3. The case not being one the determination of which necessarily depended upon a question of law which must have finally governed it, and there being disputed issues of fact involved, tlie superior court erred in rendering a final judgment therein.</p>

<p>There was no error in overruling a motion to set aside a judgment on the ground that one of the jury by whom the verdict upon which such judgment was rendered was disqualified, the remedy in such a case being to file in due time a proper motion for a new trial.</p>

<p>1. Where land is rented to a tenant for one year at a stipulated rental, and after the expiration of the-term the tenant, without further contract, remains in possession and pays the rental annually at the agreed rate, a tenancy from year to year is created.</p> <p>2. If at the end of a given year, without giving the landlord any notice of an intention to terminate the tenancy, the tenant abandons the premises, but leaves in possession another, who has previously been his subtenant, and if the latter then remains on the property for an entire year and a portion of the succeeding year, the original tenant is liable to pay the landlord rent for these two years, at the contract rate.</p>

<p>Partition. Before Judge Spence. Stewart superior court. .April term, 1899.</p>

<p>1. It is within the discretion of the judge on the trial of a civil case to allow the jury to disperse at dinner and at night while the evidence is being submitted, and before they retire to make up their verdict, without the consent of the parties to the case, no motion being made contra, or cause shown for not allowing the separation.</p> <p>2. In the trial of an action against a railroad company for injuries done to property at a public crossing which was half a mile from the depot where the train started, it was not error to give in charge to the jury “the crossing law ” as contained in í¡<¡ 2222 and 2224 of the Civil Code.</p> <p>3. The.verdict, as written off under the order of the court, is not so excessive as to require a new trial.</p>

<p>Injunction. Before Judge Hansell. Colquitt superior court. September term, 1899.</p>

<p>Habeas corpus. Before Judge Harris. City court of Cartersville. July 1, 1899.</p>

<p>Action on insurance policy. Before Judge Butt. Muscogee superior court. November term, 1898.</p>

<p>"Where, pending the trial of an action against a railway company, the jury, with the court’s permission, had dispersed for the night, and one of them was treated to a drink of intoxicating liquor and a cigar, and was also slept with by a person who had not only assisted the plaintiff’s counsel in striking the jury and in conducting the case but who was also a witness therein for the plaintiff, and himself directly interested in its result, for the reason that he had a case against the same defendant, in which he claimed damages arising from the same alleged act of negligence upon which the plaintiff’s action was predicated, the court, on having its attention called to these facts, ought to have sustained a timely motion for a mistrial, made by the defendant’.s counsel. Upon principles of sound public policy, and to the end that the purity of jury trials may be preserved unimpaired, any verdict against the defendant should, under such circumstances, be set aside, whether the same is affirmatively shown to be wrong or not.</p>

<p>Following the decision of this court in Smith v. Floyd County, 85 Ga. 420, a right of action exists against a county for damaging private property for public uses in causing public roads to be worked or drained in such manner as to injure or damage the adjacent realty of a landed proprietor.</p>

<p>1. A ground of demurrerto apetifcion, stating in general terms that “there are no proper parties,” is too vague and general. Suchground is itself defective, in that it fails to point out who would be proper parties to the proceeding.</p> <p>2. Where a levy of a fi. fa. upon land has been met by a fraudulent and frivolous claim of an insolvent person, made in forma pauperis, an equitable petition in aid of the levy will lie in the superior court of the county in which the claim case is pending, notwithstanding the claimant may not reside in that county; the object of the petition being to prevent such interference by the claimant with the progress of plaintiff’s execution, and to have a receiver appointed to take charge of the land, with the view of applying the rents and profits thereof to plaintiff’s execution ; the petition making a case that the claimant had not only filed the one claim, but, for the purpose of delay, had previously forced a continuance of the case, and had, before the filing of the claim, been instrumental in defeating the collection of the fi. fa. by dilatory tactics; the petition also making a case showing that, but for such equitable interference, the rents find profits would be appropriated by the claimant who was in possession, and the plaintiff’s power to collect its money, to that extent, would be defeated.</p> <p>3. The several objections to the admission of evidence presented no legal reason for excluding the same, save perhaps in one or two instances where the evidence admitted was not of such importance or materiality as to affect the result. In view of the testimony submitted pro and con on the interlocutory hearing, there was no abuse of discretion in granting the injunption and appointing a receiver.</p>

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

<p>Dispossessory warrant. Before Judge Smith. Pulaski superior court. August term, 1899.</p>

<p>Under the provisions of the “ local option liquor law,” embodied in section 1541 et seq. of the Political Code, the ordinary has the power, and it is his duty, before declaring the result of an election held under that law, to entertain and pass upon a contest respecting such election which may be presented to him by any qualified voter or voters of the county wherein the same was held, and his jurisdiction extends to a decision of ail questions and grounds of contest affecting the validity of the election or its result, thus brought to bis attention. It follows, that the superior court has no jurisdiction or authority to prohibit the ordinary from performing the duties thus imposed upon him by the statute.</p> <p>Fish and Lewis, JJ., dissenting. The ordinary of a county where an election has been held under the statute known as the “ local option liquor law ” has no jurisdiction to hear and determine a contest, arising under a petition by one or more voters of the county, which impeaches the validity and fairness of the election by seeking to go behind the returns of various managers of certain precincts in the Gounty, with the view of examining and having a recount of the ballots, for tbepurpose of throwing out certain votes alleged to have been illegally cast. Under the act in question, the duties and powers imposed upon the ordinary are of a ministerial or political nature, and not judicial. The questions presented by such a petition are of a judicial nature, over which the act itself gives the superior court of the county original and exclusive jurisdiction.</p>

<p>Petition for injunction. Before Judge Spence. Calhoun county. September 9, 1899.</p>

<p>There was no error in refusing to allow the introduction, in evidence of a voluminous document, tendered as a whole, which contained much irrelevant matter and but little that was pertinent to the issue in controversy, when there was nothing to prevent the party offering the same from pointing out and tendering separately the relevant portion of the paper.</p>

<p>1. An amendment to a petition, -which was offered at the time of the hearing of a demurrer to the petition, and which was disallowed by the court, forms no part of the record, and can only come to the Supreme Court by being incorporated in the bill of exceptions, or by being referred to therein and attached thereto as an exhibit and duly authenticated by the court.</p> <p>2. A demurrer to an equitable petition which prays for no extraordinary relief, upon the ground that there is an ample remedy at law, has not been sustainable since the uniform procedure act of 1887.</p> <p>3. A parol agreement by a member of a partnership, made after its dissolution, to pay a debt of the firm, contracted while he was a member thereof, is not, within the meaning of the statute of frauds, a promise to pay the debt of another.</p> <p>4. The existence of an indebtedness by A to B, and an extension of credit to B by A by reason thereof, constitutes a mutual account. The statute of limitations only runs against such an account from the date of the last item on either side thereof.</p> <p>5. The petition, although somewhat indefinite, substantially set forth a cause of action.</p>

<p>1. A waiver of pi’ocess cures the absence of process or the irregularity of the same.</p> <p>2. Original undertakers by written order for merchandise, who have failed to pay for the same at maturity, are not necessary parties to an action brought against a person on a contract in which he undertook to pay for the goods in the event the parties to whom credit was extended failed or refused to do so. Nor in such a suit is the solvency or insolvency of the original undertakers material.</p> <p>3. When the terms of such a contract are in writing and are set forth in the petition, as well as the material portions of the order the payment of ’ which is guaranteed, it is not necessary to attach as exhibits to the petitition either the contract or the order for the goods.</p> <p>4. When a suit was brought on such a contract as that above indicated, and the petition alleged that the defendants signed the order for the goods, which was the foundation of the contract sued on, it was not necessary to allege that an invoice of the goods was sent to the defendants.</p> <p>5. A petition alleging that the letters “ O. IC. ” written on an order for goods, and followed by the signature of the person writing them, constituted a contract on the part of such person to pay for the goods in the event the person sending the order failed and refused to pay at maturity, set forth a cause of action. These letters being ambiguous, their meaning maybe explained by parol evidence.</p>

Action for libel. Before Judge Smith. Wilcox superior court. June 23, 1899.

Action on judgment. Before Judge Smith. Pulaski superior court. August term, 1899. The Little Rock Cooperage Company sued Hodge upon a foreign judgment. The defendant demurred to the plaintiff’s petition, and the demurrer was sustained. Plaintiff sued out a writ of error, and upon review here the judgment sustaining the demurrer was reversed. Little Rock Cooperage Co. v. Hodge, 105 Ga. 828.

<p>Parol evidence is not, unless the proper foundation be first laid, admissible to prove either affirmatively what books of account or private writings do contain or negatively what they do not contain.</p>

Action for damages, etc. Before Judge Littlejohn. Dooly superior court. February term, 1899. R. M. Jossey brought suit against the Georgia Southern and Florida Railway Company, to rescind a contract signed by him, releasing the company from liability for a personal injury sustained by him, and to recover damages for the injury.

<p>Foreclosure of mortgage. Before Judge Evans. Pulaski superior court. February term, 1899.</p>

<p>Levy and claim. Before Judge Bennet. Appling superior court. March term, 1899.</p>

<p>Action for damages. Before Judge Atkinson. City court, of Brunswick. May 20, 1899.</p>

<p>Action for breach of warranty.' Before Judge Bennet. Ware superior court. April term, 1899.</p>

<p>Complaint. Before Judge Butt. Muscogee superior court. May term, 1899.</p>

<p>This case in principle is controlled by the decision rendered at the present term in the case of Smith v. State, ante, 227. The court erred in denying the injunction.</p>

<p>Petition for alimony. Before Judge Smith. Telfair county. July 19, 1899.</p>

<p>1. When a petition is demurred to both generally and specially, and upon the plaintiff offering to amend so as to meet the special grounds of the demurrer the court refuses to allow him to do so and enters an order in effect sustaining the general demurrer, the question is presented whether or not the petition in substance sets forth a cause of action.</p> <p>2. A petition alleging negligence on the part of an employee in and about a matter falling within “the regular discharge of his duties within the scope of his employer’s business,” and consequent injury to the plaintiff, sets forth a cause of action against such employee’s master.</p>

<p>The breach, by a purchaser, of a contract to pay a draft for the price of goods and remove the same from a railroad depot, the title to the goods remaining in the seller until such draft should be paid, did not involve the purchaser in liability to the seller for loss occasioned by the destruction by fire of the goods in the depot; and more especially is this so when the seller’s agent for the collection of the draft extended the time for the ' payment thereof until the day upon which the fire occurred.</p>

<p>Complaint. Before Judge Atkinson. City court of Brunswick. July 6,1899.</p>

<p>Complaint in trover. Before Judge Bennett. Ware superior court. April term, 1899.</p>

<p>1. A verdict finding one tried upon an indictment for murder guilty of “manslaughter” is, in legal effect, a verdict convicting him of “voluntary manslaughter.”</p> <p>2. Giving to the word “impeached” its strictly proper signification as applied to witnesses, a witness whose “unworthiness of credit is absolutely established in the mind of the jury” is impeached and ought not to be believed unless corroborated. It is, however, always a question for them whether or not any witness has been impeached. The word “impeached,” appearing in section 5295 of the Civil Code, is not there used in the sense above indicated, but as being synonymous with “attacked.” The charge relating to the impeachment of witnesses, to which exception is made in the present case, is not, when taken in its entirety, out of harmony with what is now ruled.</p> <p>3. When one on trial for murder sets up as his sole defense that the homicide was accidental, and supports the same both by sworn testimony and his statement, and the judge delivers to the jury an elaborate charge adapted throughout to a case of intentional killing, without in any manner alluding to this defense until about to conclude his instructions, and then, after very briefly referring to the contention of the accused and the law applicable thereto, adds: “I see I have got that noted here, but in my charge I did not think to call your attention to it,” a verdict against the accused should be set aside.</p>

<p>Indictment for murder. Before Judge Estes. Habershamsuperior court. September term, 1899.</p>

<p>Certiorari. Before Judge Hart. Morgan superior court. October 30,1899.</p>

<p>Certiorari. Before Judge Falligant. Chatham superior court. October 20, 1899.</p>

Indictment for forgery. Before Judge Henry. Floyd superior court. July term, 1899. Anna McCombs was convicted of the crime of forgery, and upon her motion for a new trial being overruled, she excepted. The evidence for the State was, in substance, as follows: The order alleged to have been forged, viz.: “Mr. Kuttner, — Please send by this girl two pair of shoes, No. 5 1/2, E last, one suitable for every-day wear and one Sunday pair, the latest styles in vici kids.

<p>Indictment for forgery. Before Judge Henry. Floyd-superior court. July term, 1899.</p>

<p>1. Evidence that one on trial for crime had done an act calculated to excite prejudice and ill will against him and which had no connection with the charge under investigation is inadmissible. Error in allowing such evidence to go to the jury is cause for a new trial, when there is reason for apprehending that it operated injuriously to the accused.</p> <p>•2. It is not competent for a witness, while testifying to the particulars of a difficulty which he had seen take place between two other persons, to express his opinion that at a given moment the time had come for one of them “to either run or fight.”</p> <p>3. The law embraced in section 73 of the Penal Code was not applicable to this case and ought not to have been given in charge. In other respects, the charge of the court was free from error.</p> <p>4. As there is to be another trial, no opinion as to the merits of this case is expressed.</p>

<p>The evidence as a whole was entirely insufficient, to establish the guilt of the defendant.</p>

<p>1. If in a trial for murder the law of voluntary manslaughter is not involved, the court should not charge thereon, but so doing will not, in such a case, be cause for a new trial, if the accused be rightly convicted of murder, or if, though he be convicted of voluntary manslaughter only, a verdict of murder was really demanded. If, however, in such a case, the accused be convicted of voluntary manslaughter when there was evidence which would have warranted an acquittal, or whén his statement, if believed, would have so warranted, there should be a new trial.</p> <p>2. Setting aside á juror for cause after the panel of forty-eight has been made up in a felony case and the selection of the jury to try the same has been begun is not cause for new trial. Doyal v. Stale, 70 Ga. 134, 142.</p> <p>3. After the original panel of forty-eight has been exhausted, it is a matter of discretion with the judge as to what numbers of jurors shall compose the succeeding panels to be put upon the accused.</p> <p>4. Inaccuracies in explaining to jurors the meaning of the questions propounded on their voir dire will not, in a plain case of guilt and when no injury to the accused is affirmatively shown, require a conviction to be set aside.</p> <p>5. When in his charge the judge informs the jury that the contentions of the parties are so and so, it will, in the absence of a certificate from him to the contrary, be presumed that his statement of such contentions was correct.</p> <p>6. Objectionable remarks by a solicitor-general in his argument to the jury afford no cause for a new trial when no exception was taken thereto and no ruling of the court invoked thereon. It does not, in the present case, appear that the argument of the solicitor-general was in any respect unfair or prejudicial to the accused.</p> <p>7. Irregularitiés in the conduct of jurors trying a criminal case, such as the separation of some of them from their fellows, and the like, is not cause for a new trial, when it affirmatively appears that no injury resulted therefrom to the accused.</p> <p>8. It is too late to poll a jury after the sentence of the court has been pronounced. There is in the record evidence warranting a finding that the request to poll in this case was made after sentence.</p>

<p>Indictment for assault with intent to murder. Before Judge Candler. Newton superior court. September term, 1899.</p>

<p>From the preliminary examination of the child on whom a rape was alleged to have been committed in this case, it does not appear that she sufficiently understood the nature and obligation of an oath or of the responsibilities attaching to a witness who is sworn to tell the truth. On another trial, when she has advanced in age and been the subject of proper moral training, she may appear to be competent.</p>

<p>1. An allegation in an accusation, that a given representation was made to one member of a firm with a view to procuring credit, is not supported by evidence showing that such a representation was made solely to another member of that firm.</p> <p>2. A charge of cheating and swindling alleged to have been committed by making false representations as to financial condition, thereby obtaining credit, is not sustained when it affirmatively appears that the goods sold on the faith of those representations were actually paid for-. Such representations not repeated or reaffirmed do not, for purposes of the penal statute, apply to credit given at a subsequent period, unless the person to whom the credit was extended knew or had reason to believe that the latter credit was extended solely on the faith of the representations previously made.</p> <p>3. It was improper for counsel representing the State to say, in his argument to the jury, that he would not appear in the case if he “ did not believe the defendant to he as guilty as any man that was ever tried in the courthouse;” and the court should not have approved of such argument as • legitimate.</p>

<p>Indictment for arson. Before Judge Felton. Crawford superior court. October term, 1899.</p>

<p>1. A private person is authorized to make an arrest for a misdemeanor only where the offense is committed in his presence or within his immediate knowledge. It was, therefore, error on the trial of a person charged with the homicide of one who had attempted to arrest him, where the evidence clearly showed that the deceased and another attempted to arrest the accused for a misdemeanor two days after the commission of the offense, and that the deceased and his companion were private persons acting without a warrant, to give in charge to the jury the law authorizing officers to make arrests without warrants; and it was especially erroneous to instruct the jury in effect that a private person might arrest where “it vas reasonably proper to do so in order to prevent a failure of justice for the want of an officer to issue a warrant.” For the same reason it was error to charge: “ Whether under all the circumstances, including the facilities for obtaining a wai’rant, according to the spirit of the law, there was or was not cause for attempting the arrest, is a question, after all, for you to determine.”</p> <p>2. It was error in such a trial to allow a witness to give his opinion as to what would have been the result to him and the sheriff if they had persisted, two days before the homicide, in an effort to remove a prisoner from the jail to the railway-station against the will of a mob of which the accused was alleged to have been a member.</p> <p>3. Where there was no evidence of any mutual combat between the deceased and the accused preceding the homicide, it was error to give in charge to the jury the provisions of section 73 of the Penal Code.</p> <p>4. Though in the statement of one on trial for murder he may have used an expression which, at most, was merely susceptible of th'e construction that he had consented for the deceased and another, who at the time of the homicide were threatening without lawful authority to take him into custody, to enter his house for that purpose, yet where it affirmatively and positively appeared from the evidence that neither the deceased nor the other entered the house in consequence of any such alleged consent, it was error to submit to the jury any question as to whether or not their entering the house was upon the invitation, tacit or otherwise, of the accused.</p>

<p>Indictment for perjury. Before Judge Butt. Muscogee .superior court. December 2, 1899.</p>

<p>A “church” is not a “public building” within the meaning of section 725. of the Penal Code.</p>

<p>Injunction. Before Judge Smith. Wilcox county. December 29, 1899.</p>

<p>1. An indictment alleging that certain named persons “ did in a violent and tumultuous manner prevent the sheriff . . from removing from the common jail” a prisoner therein confined, sufficiently charges the offense of riot, as against a special demurrer setting up that the indictment did “ not allege any act done in a violent and tumultuous manner, which prevented ” the sheriff from removing the prisoner. Aliter, if the point had been made that the act charged was not set forth with suificient particularity.</p> <p>2. Evidence warranting a finding that a number of persons, some of whom were armed with deadly weapons plainly exposed to view, suddenly congregated at a given signal for the purpose of preventing the removal of a prisoner from jail by the sheriff and his posse, acted in an excited manner, talked loudly, ran about from place to place, and made use of threatening, profane, and violent language, thereby intimidating the sheriff and his posse and actually preventing the removal of the prisoner until the arrival of military troops sent to his assistance, authorized the conviction of these persons of the offense of riot. All persons connected with and sharing in the common purpose of the assembly were guilty of riot, whether their conduct was violent and tumultuous or not.</p> <p>3. The judge committed no error in charging, or in refusing to charge as requested. Such of the other grounds of the motion for a new trial as present questions in a manner that can be dealt with disclose no error requiring the granting of a new trial.</p> <p>Lumpkin, P. J., and Fish, J., dissenting. The special demurrer above referred to was intended to present, and did sufficiently present, the objection to the indictment that it did not set forth what means the accused employed, or what specific act or acts they did, for the purpose of preventing the removal of the prisoner, and therefore did not with the requisite particularity put the accused on notice of the charge they were called apon to meet. Thus interpreted, the demurrer was good and ought to have been sustained.</p>

<p>When, for want of an essential party to the bill of exceptions, a writ of error is subject to dismissal but there is no motion to dismiss, this court, ex suo mero motu, will allow the plaintiff in error time and opportunity to make parties and obtain, if practicable, any waiver of service which may be necessary to a proper hearing of the case upon its merits. If, however, after such indulgence he is unable to obtain the requisite waiver, dismissal must follow.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. May term, 1899.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. June 8, 1899.</p>

<p>The superior court has no jurisdiction to entertain an ordinary claim to a fund raised by a garnishment and which has been properly paid into a city court.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. May term, 1899.</p>

<p>Indictment for embezzlement. Before Judge Reagan. Hall superior court. July term, 1899.</p>

<p>1. A.n accused person can not set up former jeopardy upon an accusation which was quashed on a demurrer filed by himself, andthis is true though the judge at the time the demurrer was submitted overruled it and allowed the case to proceed to the extent of introducing testimony, but afterwards recalled his original ruling and adjudged that the demurrer was good and the accusation insufficient in law.</p> <p>2. It is not essential to the validity of an accusation that a warrant for the arrest of the accused should be issued upon the affidavit on which the accusation is founded, or that such affidavit should minutely describe the offense.</p> <p>3. The evidence fully warranted the conviction, and there was no error in overruling the certiorari.</p>

<p>Foreclosure of mortgage. Before Judge Butt. Sumter superior court. November term, 1898.</p>

<p>1. An application by a party to a casein equity for the allowance of an attorney’s fee for bringing a fund into court is, though the attorney for whom the fee is sought joins therein, to be regarded as a proceeding in the name and right of the party, and not of the attorney.</p> <p>3. Wo party is entitled to such an allowance out of the proceeds of property which he, for his exclusive benefit and to the injury of his adversary, causes to be placed in the hands of a receiver; nor can any party, except in cases of bad faith, stubborn litigiousness, and the like, charge against the opposite party as “ costs ” attorney’s fees incurred in litigation.</p> <p>3. A contract to pay the maximum legal rate of interest compounded monthly is in no event valid unless in writing.</p> <p>4. Though the main purpose of the owner of a manufacturing plant, in delivering the possession, management, and control thereof to a creditor, may be to enable the latter to obtain from the proceeds of its operation payment of a certain indebtedness, yet where the contract expressly provides that such creditor may, at his option, remain in possession for a specified period, his right to do so would not, if he complied with all of his undertakings, terminate upon the satisfaction of the indebtedness before the expiration of that period.</p> <p>6. Exceptions to an auditor’s report should not be stricken on demurrer when they point out the alleged errors in such manner that the nature of the same can be clearly and readily understood when considered in connection with the findings of the auditor to which such exceptions refer.</p> <p>■6. It is not erroneous to strike exceptions not meeting the requirement just indicated, or cause for reversal to strike exceptions which, though sufficient as to form, are manifestly without merit.</p> <p>7. It is within the discretion of the court to allow or reject new exceptions •to an auditor’s report after the time for excepting thereto has expired ; but the privilege of filing new exceptions should be'denied unless good cause for not duly filing them is shown.</p>

<p>Action for damages. Before Judge Atkinson. City court of Brunswick. March 3, 1899.</p>

<p>Petition for injunction. Before Judge Bennett. Clinch county. August 10, 1899.</p>

Action for damages. Before Judge Lumpkin. Fulton superior court. March term, 1899. Roughton sued the Georgia Railroad & Banking Company for personal injuries alleged to have been sustained by him by reason of the defendant’s negligence.

<p>If a vendor and vendee make an executory contract whereby the former sells to the latter certain goods for which the latter agrees to pay at a time subsequent to the date of delivery ; and if, before the time fixed for the delivery of the goods, the vendee becomes insolvent and the vendor stops the goods in transitu and resells them for less than the contract price, and thereupon brings an action against the vendee for the difference between the contract price and the price realized upon the resale, his declaration is fatally defective, unless it alleges either that he gave the vendee notice of his intention to resell, or that he made a tender of the goods and demanded payment and the vendee refused to take the goods or to pay for them.</p>

<p>An action by a father for the loss of the services of his minor daughter, occasioned by personal injuries, should not he dismissed because she, after reaching her majority, refused to obey an order of the court in which the action was pending, requiring her to submit to a physical examination of her person by a physician.</p>

<p>Jl judge of a court of record in another State is, under the provisions of section 3621 of the Civil Code, authorized to take an acknowledgment of a deed to realty situated in this State, which is executed in the State where the court over which such judge presides is located.</p>

<p>An appeal does not lie to the superior court from a judgment rendered by the ordinary sustaining a demurrer to an application for a homestead. In such a case the exclusive remedj' for reviewing the judgment is by certiorari.</p>

<p>Where a petition setting out a cause of action has been filed and followed up by the issuance of process and service, the time of the commencement of the suit is the date of its filing. But where, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending. The filing of the petition without more does not operate to commence a suit; nor has the judge in such a case authority, at or after the return term, to order a new process to issue.</p>

<p>1. Allegations in a petition relating to a written instrument executed by a defendant, or to his own actings and doings, are not, without some explanation of his alleged ignorance concerning the same, properly met by . a general averment that for want of sufficient information he is unable either to admit or deny the paragraphs of the petition in which such allegations are set forth.</p> <p>2. A mere written proposal to pay money, with no offer of the cash, is not a tender.</p> <p>3. That the maker of a plain and unambiguous written contract with a corporation was induced to execute the same by false and fraudulent representations as to its methods of doing business, and as to the probable results of the transaction evidenced by such contract, is not a valid defense to an action thereon, when there is nothing to show that the maker was misled or deceived as to its contents or in any manner prevented from ascertaining the same.</p> <p>4. Allegations in an answer setting up alleged rights under the by-laws of a corporation are incomplete, unless enough of such by-laws, either literally or in substance, be set out to enable the court to determine to what the defendant is entitled thereunder.</p> <p>5. The questions in the present case not dealt with in the preceding notes were settled by the decision of this court in the case of Cook against the defendant in error, 104 Ga. 814.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. March term, 1899.</p>

Complaint. Before Judge Lumpkin., Fulton superior court. March term, 1899. This was an action against the county upon an account for work done by the plaintiff as “county inspector of roads and bridges,” for a specified number of days in 1896 and 1897, at $2 per day.

<p>Complaint. Before Judge Lumpkin. Fulton superior court. March term, 1899.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. March term, 1899.</p>

<p>1. Though notice of a sheriff’s sale he published once a week for four successive weeks before the day of sale, the advertisement will not meet the requirements of the law if the last publication be made in the same week as that in which the sale is to be had. Where four publications only are made, each must be in a separate week, and each must precede in point of time the week embracing the day of sale. The decision of this court in Bird v. Burgsteiner, 100 Ga. 486, construed in the light of its facts, does-not conflict with what is here laid down, and the language in the opinion which seems to indicate the contrary was obiter.</p> <p>2. Where, however, the purchaser at a sheriff’s sale has no knowledge or notice of insufficiency in the sheriff’s advertisement, he will be protected, although he be the plaintiff in execution. It does not in this case appear that the purchasers had such notice.</p> <p>3. A sheriff’s sale under a dormant execution is void, and, being a mere nullity, presents no obstacle to a sale of the same property on the same day under a valid execution.</p> <p>4. There was no error in explaining to the jury the history and nature of the case as it appearedfromthe uncontradicted evidence and the pleadings, the more especially when the judge went no further than was essential to a clear understanding of the issues involved at the trial.</p> <p>5. Contiguous parcels of land forming one entire tract may be levied on and sold as one tract, although the same be composed of fractional parts of different land lots.</p> <p>6. While the rights of one entitled to the balance of the proceeds of a sheriff’s sale after the satisfaction of the lien under which the salé took place should not he prejudiced by the misconduct of a stranger in deterring bidders, yet if it appeared that the person first referred to really acquiesced in such conduct and sought to prevent the property from bringing its full value, such person would not, because of the mere misconduct of the stranger, have the right to invalidate or set aside the sale.</p> <p>7. The mere fact that a principal and agent bid against each other at a sheriff’s sale, though their purpose in so doing was to deter other bidders and get the property at less than its value, would not, in the absence of some proof that the price was really affected by such conduct, be cause for setting the sale aside.</p> <p>8. There is no error in requiring counsel to confine his argument to the facts and: issues involved in the case.</p> <p>9. The fact that a sheriff’s sale embraced a parcel of land belonging to a third person is not a ground for setting the sale aside at the instance of the defendant in execution or one entitled to the balance of the proceeds of the sale after the execution was satisfied.</p> <p>10. Though a tract of land had in fact been laid off into streets and town lots, yet where there were no visible marks on the surface of the tract to indicate the metes and bounds of the lots, and the only thing in the nature of a street appearing thereon was a recognized public road of the county, a levy upon and sale of the entire tract as one parcel was prqper and legal.</p> <p>11. An entry of levy embracing a description of the property levied on, which of itself is insufficient to locate the same, and referring for a more accurate description to a public record, is sufficient as to matter of description if the property is accurately described in such public record.</p> <p>12. The charge of the court was full, fair, and explicit. The evidence amply warranted the verdict; and no error was committed during the progress of the trial which would require a reversal of the judgment refusing to grant a new trial.</p>

<p>Complaint for land. Before Judge Hart. Laurens superior court. January term, 1899.</p>

<p>Equitable petition. Before Judge Smith. Wilcox superior court. February 1, 1899.</p>

<p>Action for damages. Before Judge Atkinson. City court of Brunswick. May 6, 1899.</p>

<p>Where a debtor to several persons had a sum of money on deposit in a bank and .gave to one creditor a check for a particular sum to be paid out’of the fund, and immediately afterward assigned to another ail the funds in the hank to bis credit, and the assignment was first presented, no recovery can be had by the assignee, against the bank,’ for the whole sum of tbé deposit because'it first paid to the holder the amount represented by the check, provided .the assignee at the time of the assignment knew that it was the intention of the depositor to assign only the amount left after the payment of the check. Whether such was the intention and known to the assignee were questions of fact to he determined by the jury, and they having so found, which was the second verdict for the defendant, and there being ample evidence to support such finding, and the charge on the subject being legal and pertinent, a new trial should not have been granted.</p>

<p>Action for malicious prosecution. Before Judge Reid. City court of Atlanta. July 3, 1899.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. March term, 1899.</p>

Ejectment. Before Judge Lumpkin. Fulton superior court. March term, 1899. Plaintiffs were nonsuited in the court below, and excepted. The only evidence necessary to be set out here is a copy of the will of William Terrell, dated February 19, 1851, which is as follows: “ Georgia, DeKalb County. In the name of God, amen.

<p>Equitable petition. Before Judge Candler. Fulton superior court.. March term, 1899.</p>

<p>Where a married woman sought an exemption of personalty as the property of her husband, alleging that lie refused to apply for such exemption, the proceeding was not subsequently amendable by converting it into an exemption of the property as that of the wife as head of the family, based upon the idea that she was living separate from her husband and had a minor child.</p>

<p>1. If a purchaser at a sheriff’s sale does not comply with the terms of his hid, the officer may, under proper conditions, resell on the same dáy within the lawful hojirs of sale, the more especially after giving, in advance, notice of an intention so to do in the event of failure by the sucT cessful bidder to make payment by a designated hour; but where’, in such a case, the second sale took place after the dispersal of the crowd in attendance upon the first and just before the close of sale, hours, when there was little or no competition, and the -plaintiff in .execution .became the purchaser at a price which was not only far. less than that brought at the previous sale but so grossly inadequate as to shoclfeVen the average man’s sense of justice and fairness, the second sale should be treated as void and the property should be readvertised and sold again.</p> <p>2. One who, with knowledge of the facts, becomes.the transferee of-the bid made by the purchaser at a sale of the character last indicated; and who by virtue of such transfer and the payment of the amount of the bid acquires a deed- from the sheriff, occupies no better footing as to title; than such purchaser would have done if the sheriff, had conveyed to him..</p> <p>3. The present case should not have been disposed of by a judgment of nonsuit. ■ •</p>

<p>1. A bond for titles to a tract of land, described as being within certain boundaries and measuring a certain number of feet in width and in depth binds the obligor to make title to the entire tract so described ; and if he has no title to a portion of it, this is a breach of the bond, although he did not have title to such portion at the time the bond was executed.</p> <p>'2. Proof that the obligee in the bond for titles knew or had an opportunity to learn that the obligor was not the owner of the entire tract described in the bond does not relieve the obligor of the consequences of his breach, it not appearing that there was any mistake in the description given in the bond.</p>

<p>1. The competition the defeating or lessening of which par. 4, sec. 2, art. 4 of the constitution (Oivil Code, § 5800), so far as applicable to railroad companies, was designed to prevent, was competition between lines of railroad viewed with reference to their general business in and through the territory traversed by them, and not competition which might incidentally exist at mere points or particular places. Acombination of railroad lines, whatever the form adopted for bringing it about, is not violative of this paragraph of the constitution, even though it might lessen or defeat competition at some point or points, if, as a general result of the combination, the public at large, as distinguished from the people of special or particular communities, was in consequence benefited.</p> <p>2. Whether or not the combination of any two given lines of railroad would be contrary to this paragraph of the constitution is a question which can not be settled under any rule of universal application, but one which must be determined in each case upon its own peculiar facts and circumstances.</p> <p>3. The present record discloses that there was ample evidence to uphold an adjudication that the consolidation of the two lines of railroad involved did not defeat, and was not intended to defeat, competition in the sense in which that word is used in the above-mentioned paragraph of the constitution, and also that such consolidation neither encouraged nor tended to encourage monopoly.</p>

<p>1. When an action is instituted in the name of the State for the purpose of preventing a violation of the provisions of par. 4, sec. 2, art. 4 of the constitution (Civil Code, § 5800), the questions whether such action is well brought and is maintainable depend upon the pleadings and the evidence introduced in support thereof, and not upon the motives inspiring those at whose instance the Governor was induced to order the suit to be filed, or the arguments presented to him to that end.</p> <p>2. The remedy for such a purpose may be injunction, and it is not in every' instance essential to resort to the harsher proceeding to forfeit a charter.</p> <p>3. That portion of the above-mentioned paragraph of the constitution which denies to the General Assembly “ power to authorize any corporation to buy shares or stock in any other corporation ” is not absolute in its terms; but it was designed only to prevent the General Assembly from authorizing one corporation to purchase shares or stock in another, when doing so ‘ ‘ may have the effect, or be intended to have the effect, to defeat or lessen competition in their respective businesses, or to encourage monopoly. ’ ’</p> <p>4. This clause of the constitution applies to and includes all corporations ; and, consequently, is applicable to street-railway companies, and enforceable as to them whenever they, directly or indirectly, violate its provisions.</p> <p>5. Under the charter of the Trust Company of Georgia, that corporation has authority to buy the shares or stock of any other corporation; provided that, in so doing, it does not violate the provisions of the constitution of this State.</p> <p>6. Placing upon the word “competition,” as used in this paragraph, the interpretation given to it in the case of State of Georgian. Central of Georgia Scdlway Company, ante, 716, and taking into view the evidence in the present record, the court erred in holding that the proposed purchase of stock would be violative of the’ constitutional provisions referred to, and in granting, on that ground, the injunction sought.</p>

Petition for injunction. Before Judge Spence. Brooks, county. August 5, 1899.

<p>When one makes a money subscription to a corporation, to be expended in the development of its property in certain named ways, and by the contract is to receive therefor “ stock, bonds, or other security,” as may be determined by the board of directors, and the board subsequently declares that the subscriber, by virtue of scrip issued to him on the payment of such subscription, is entitled to the bonds of the company to the extent of the sum paid in, and that such development fund paid in “is hereby recognized as an indebtedness for which the holder is entitled at once to the principal and interest in money, except where he takes bonds in lieu of money,” such subscriber, to the extent of the money paid in, is a creditor of the company, 'and the legal effect of the contract under this action of the board of directors is that the unpaid portion of any subscription, so made, is cancelled, where the subscriber does not elect to take therefor the bonds of the company.</p>

<p>1. Relatively to the question dealt with by this court in the case of Atlanta Bailway Company v. American Car Company, 103 Ga. 254, there is no material difference between an “express promise” to repair defective machinery and “ repeated and continuing promises ” to do so. Accordingly the amendment to the defendant’s answer was properly allowed.</p> <p>2. While ‘ a plea of total failure of consideration includes partial failure of consideration,” there was in a particular case no error in charging, in effect, that the jury must find for the plaintiff the full amount sued for, or nothing at all, when under the evidence pro and con one or the other of these findings was absolutely required.</p> <p>3. There was no error in admitting evidence for any reason alleged in the objections made to the same, and the evidence warranted the verdict.</p>

<p>Equitable petition. Before Judge Candler. Fulton superior court. March term, 1899.</p>

<p>A bond at the beginning of which was stated the case of a named plaintiff against a designated partnership as defendant and a third person as garnishee ; which on its face purported to bind one of the partners ‘ ‘ as principal and as a member of” that firm, and certain persons as sureties; which, after reciting the facts, as to the suing out of the garnishment, was conditioned for the payment to the plaintiff in the case mentioned of “theamount which may be recovered andall costs therein in said garnishment ; ” and which was duly executed by such partner and the sureties, was, under section 4718 of the Civil Code, sufficient as to form, and* if solvent as to suretyship, was a good statutory bond for the purpose of dissolving the garnishment.</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court, March term, 1899.</p>

<p>Petition for certiorari. Before Judge Lumpkin. Fulton superior court. March term, 1899.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. March term, 1899.</p>

<p>Affidavit of illegality. Before Judge Reid. City court of Atlanta. March 31, 1899.</p>

<p>1. When it is in a bill of exceptions recited that the same was tendered within the time prescribed by law, the writ of error will not be dismissed because of the failure of the presiding judge to certify the same within the statutory period, unless it be made to appear that his failure to do so was caused by some act of the plaintiff in error, or his counsel.</p> <p>2. While a motion to set aside a judgment is addressed to the sound discretion of the judge, it should not, although made during the term at which the judgment was rendered, be granted unless some meritorious reason be given therefor. The failure of the defendant to appear and plead, in consequence of a misunderstanding between it and its counsel, affords no such reason.</p>

<p>Where an execution was levied upon property of the defendant in execution, and he filed an affidavit of illegality thereto, and was, on the day of sale, informed by the sheriff that the latter had accepted the illegality and that the property would not be sold on that day; and where the defendant and his counsel thereupon left the place of sale ; and where subsequently the sheriff reconsidered and determined to sell the property on that day, and at noon notice was given to the defendant’s counsel, who sought to find his client but was unable to do so; and where at three o’clock counsel for the defendant and for the plaintiff and two other persons appeared .at the place of sale and the property was sold to the plaintiff in execution for §100, when its true value was $2,000: held, that the sale should he set .aside on application of the defendant in execution, although his attorney .gave notice at the time of the sale of the pendency of an application for homestead upon the property.</p>

<p>1. A dealer in bicycles, who sold the same on his own account and not as agent, was liable to pay to the State a tax of one hundred dollars for the year 1899, if he sold any bicycles the manufacturers of which had not paid such a tax for that year; but after paying the tax of one hundred dollars for the year mentioned, such dealer had the right during its cohtinuanee to sell bicycles of as many different “makes” as he chose without-paying any additional tax for that year. The mere fact that his license-from the comptroller-general or his registration as a dealer in bicycles-purported to limit his authority to sell to “makes” of a particular kind, did not render it unlawful for him to sell other “makes.”</p> <p>2. The charge excepted to being in direct conflict with the views above expressed, and it manifestly appearing that the verdict against the plaintiff' in error was necessaril y controlled thereby, the judgment must be reversed..</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. January 3, 1900.,</p>

<p>Motion to tax costs.</p>

<p>Indictment for selling liquor. Before Judge Candler. Whitfield superior court. October term, 1899.</p>

<p>Petition for injunction. Before Judge Bennet. Ware county.. December 16, 1899.</p>

<p>Equitable petition. Before Judge Candler. DeKalb superior court. February 3, 1899.</p>

<p>1. “Owing to their nature and the purpose of their creation, it is essential that the territory included in municipal corporations should be well defined and clearly bounded.”</p> <p>3. In so far as the act of December 20, 1899, “to incorporate the town of Kirkwood, in DeKalb county,” undertook to establish “the corporate limits of said town,” the provisions looking to that end were so indefinite, uncertain, and incomplete that the legislative intent can not be ascertained and given effect, even by a resort to all competent extrinsic evidence .available.</p>