Volume 110 — Georgia Reports

Action for damages. Before Judge Candler. Kockdale superior court. April term, 1899. The plaintiff was an employee in the defendant’s paper-mill, and a part of his duty was to guide paper through a cutting-machine. Another employee, one Mitchell, had control of the running of the machine, and the plaintiff was his helper and was working under his direction.

<p>Where a landlord leases a farm and permits the tenant to open thereon a road for his own convenience and the convenience of the community, and, after the expiration of the lease and the removal of the tenant from the land, the tenant and others are permitted for more than one year to use the road, another tenant, who has succeeded the first, can not, though so authorized by the landlord, close the road without giving the thirty days notice required by section 673 of the Political Code.</p>

<p>Probate of will — appeal. Before Judge Smith. Washington superior court. March term, 1899.</p>

<p>Probate of will- — appeal. Before Judge Evans. Bulloch superior court. April term, 1899.</p>

<p>Action on insux’axxce policy. Before Judge Littlejohn.- Dooly superior court. February term, 1899.</p>

<p>Injunction. Before Judge Littlejohn. Schley county. December 23, 1899.</p>

<p>1. Where an owner of lands, by an instrument in writing, conveys to another “all of the timber and growing trees suitable for mill purposes, or for being manufactured into lumber, now upon all or any of the following lots, tracts, or parcels of lands,” in a designated county, “known and described as follows: round timber in the first district of said county, lots numbers” 2 and 199, and in the sixth district lots 90 and 95; “boxed timber in the first district,” lots 246, 293, 332, 333, 334; “the purchasers having the exclusive right to box the round timher and work the same for turpentine purposes; ” with the stipulation that “this lease terminates and reverts back to the owner of the land in five years from the time the timber is commenced to be cut under this lease,” the period of limitation in such a conveyance should be computed as to all the lands embraced therein from the time the lessee begins cutting the timber upon any one of the lots, although, the lots do not together form one body of land, but some of them are situated in one portion of the county and some of. them in another; there being nothing in the conveyance to indicate an intention by the parties that it should be treated as a separate lease to each lot or body of land, and to fix the duration of the lease as to each lot or tract at five years from the time the lessee begins cutting timber thereon.</p> <p>2. Under such lease the “right” of thé lessee “to box the round timber . and work the same for turpentine purposes ” ceases to exist at the expiration of five years from the time the lessee begins to cut the tim- . her for sawmill purposes.</p>

<p>This court'will not pass upon a question made in a bill of exceptions,: when it affirmatively appears that the plaintiff in error, an administrator, has no interest at all in its determination, and that neither he, nor the estate he represents, will be in any manner affected by a decision thereon one way or the other; and when such bill of exceptions presents no other question, the writ of error will be dismissed.</p>

<p>When two persons receive a sum of money belonging to a minor and invest the same in land, taking title to themselves, they have no beneficial interest in the property, but hold it as trustees for the minor, and it is not subject to an execution issued against such persons as principal and surety on a county treasurer’s bond, notwithstanding at the time the bond was executed 'such trustees were the apparent-owners of the land.</p>

<p>While hy statute landlords have a special lien for rent on the crops made upon land rented from them, which can not be defeated by a subletting of the premises, yet, as a landlord can not maintain an action for rent against one who is not his tenant, and as the relation of landlord and tenant does not arise between the owner of realty and one to whom his tenant has sublet the same until the landlord elects to make the subtenant his tenant, such subtenant is not, until the owner of the premises exercises his right to make such election, liable to him for the rent of the property.</p>

<p>1. The only proper parties to an issue arising under a warrant sued out to dispossess a tenant holding over are the alleged landlord and the tenant, and it was error to allow other persons under whom the tenant claimed possession to he made parties defendant to the proceeding.</p> <p>2. A tenant can not dispute the title of his landlord and attorn to another while in the possession acquired hy his contract of lease; and if after the expiration of his term he desires to contest the title of his landlord, he must first surrender the possession acquired from him.</p>

<p>Where a landowner agreed with a laborer to allow the latter to cut timber from the land and transport and deliver the logs to a third person who was to reserve from their sale a certain amount per thousand feet for the landowner, and the laborer cut a number of logs hut then abandoned the enterprise before transporting or delivering them to the third person agreed upon, the title to the logs thus cut did not pass to the laborer and they are not subject to levy and sale as his property.</p>

<p>Action for damages. Before Judge Littlejohn. Jefferson superior court. May term, 1899.</p>

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

<p>Levy and claim. Before Judge Callaway.- Burke superior court. October term, 1898.</p>

<p>There being no error of law complained of, and the evidence being ■ sufficient to sustain the conclusion reached by the trial judge, to whom, by consent of parties, the ease was submitted without the intervention of a jury, this court will not interfere with his judgment in denying the motion for a new trial.</p>

<p>1. A creditor can not, for the purpose of collecting a debt which has become barred by the statute of limitations, maintain against his debtor an\ction having for its object the enforcement of an equitable lien on land arising from an absolute conveyance thereof to the creditor and a contemporaneous parol agreement that he was to hold the title as security for the debt.</p> <p>2. When in such a case the deed to the creditor was executed, not by the debtor himself, but by one from whom he had contracted to purchase the land, such conveyance can not be regarded as an instrument “in the nature of a mortgage” executed by the debtor himself and as such enforceable by foreclosure at any time within twenty years from the ■ maturity of the secured debt.</p> <p>3. The petition in the present case was not maintainable as an action for the recovery of land, nor as a proceeding to establish a copy of a lost deed.</p>

<p>1. The judgment of a tribunal of a sister State is admissible in evidence-in this State when authenticated in the mode provided by the act of . Congress, if that act is applicable, but in other cases its authentication must be under the great seal of the State, as required by section 5232 of the Civil Code.</p> <p>2. A judgment rendered in a court not of record, of another State, which has no clerk and of which the presiding officer is not ex-officio clerk, can not be authenticated under the act of Congress embodied in section 5237 of the Civil Code.</p>

<p>Confirmation of sale. Before Judge Falligant. Chatham superior court. June term, 1899.</p>

Certiorari. Before Judge Candler. DeKalb superior court. April 28, 1899. D. G. Hopkins sued the Southern Railway Company for damages for the killing of his wife. The case was tried before a jury in the city court of DeKalb county, and a verdict rendered for the defendant. Plaintiff carried the case, by certiorari, to the superior court.' The certiorari was overruled, and the plaintiff excepted.

<p>There is no obligation upon the authorities of a municipal corporation towards any one of its citizens to exercise the legislative discretion with which they are invested to enact ordinances prohibiting any specific act concerning the streets and sidewalks of the town. Such matters are left to their discretion; and a right of action against a city does not accrue to one who was injured by a person riding a bicycle on the sidewalk because the authorities had failed to prohibit such riding.</p>

<p>When the plaintiff in an equity case, in whose favor a verdict has been returned upon the only material issue involved in the pleadings as they stood at the time the case was submitted to the jury, sues out an apparently meritorious bill of exceptions, alleging, among other things that the court erred in refusing to allow specified amendments to his petition and in striking designated portions thereof on demurrer, that as a consequence other material issues were withheld from the jury, and that he was thus denied additional relief to which he was entitled; and when in the argument here the fact is disclosed that the defendants have filed a motion for a new trial which is still pending, and it is, in view of the nature of the case, so far as the same can be gathered from the record in hand, probable that either a general reversal of the judgment or a reversal with direction that only the issues last referred to be submitted to a jury might operate unjustly to one side or the other, this court, in the exercise of the power conferred upon it by the Civil Code, § 5586, will order that the bill of exceptions be withdrawn and filed again in the office of the clerk of the trial court, and that upon this being done it shall have all -the force and effect of exceptions pendente lite duly and lawfully filed, with the right to the plaintiff to avail himself of any and all benefits to which he may be entitled thereunder after the final disposition in the court below of the motion for a new trial.</p>

<p>In an action to recover damages for the breach of a contract the amount ascertained to be proper compensation at the time of the breach maybe increased by the addition of interest; but the rule is not imperative that it shall be done. "Whether it will or not rests in the discretion of the jury. It was, therefore, error for the court to charge that if the jury should under a given state of facts find for the plaintiff, their verdict ought to be for the damage sustained, together with interest from the time of the breach. Since, however, there have been three verdicts for the plaintiffs, direction is given that the sole question for determination at the next trial shall be the amount to which the plaintiffs are entitled.</p>

<p>1. Generally every partnership is dissolved by the death of one of the-partners, where the partnership articles do not stipulate otherwise; yet any partner may by his will provide for the continuance of the partnership after his death, and in making this provision he may bind his whole estate, if the language of the will is clear and unambiguous that he intends to make his general assets liable for all debts contracted in continuing the trade after his death.</p> <p>2. Where under such a will the sole surviving partner, who is also an executor, is authorized to carry on the business of the partnership in-the firm name, “make sales and purchases of goods, negotiate loans,, employ labor, renew and extend existing commercial obligations of the firm, make new notes and new contracts, and do and perform ail other acts necessary to a successful carrying on of the business,” and it is declared that the estate of the testator shall be chargeable-with the liabilities of the firm and those of the survivor, made in conducting and carrying on the business, in the same manner and to the same extent as if he were in life, and where in pursuance thereof the survivor contracts new debts, the assets of the partnership and the individual assets of the estate are bound therefor. Under the power thus conferred the surviving partner, he being one of the two executors, with the consent of his coexecutor as provided in the will, had. power and authority to make and execute a deed to the realty belonging to the partnership, for the purpose of securing the debts contracted by him in continuing the business.</p> <p>3. Where in such a case the firm, prior to the death of the testator, purchased a storehouse for the purpose of carrying on its business, and gave promissory notes for the purchase-money and a mortgage to secure the same, and where a creditor took up the mortgage to prevent its foreclosure and had it transferred to him, and afterwards took the security deed above mentioned, the mortgage did not become merged in the deed, it expressly appearing from the writings that such was not the intention of the grhntee in the deed.</p> <p>4. Where, upon an equitable petition by creditors other than the widow of the deceased, the personal property and i*.e real estate belonging to the firm were taken possession of by the court through its receiver, and where she filed an intervention in behalf of herself and her minor son for a year’s support, which was set apart jointly to her and her son by the ordinary, the trial judge did not err in holding that the judgment for the year’s support had no lien upon the partnership assets until the partnership debts were paid. Real property purchased by the firm to be used in carrying on the partnership business is in equity treated as personalty and assets of the firm.</p> <p>5. There was therefore, in the present case, no error in holding that the widow was not entitled to dower in the real estate belonging to the firm.</p> <p>6. Where in a case like the present, the widow, after the death of her husband, the senior partner, paid off certain notes given for the purchase-money of the storehouse, with the understanding among all the parties that she should be subrogated to that extent to the rights of the mortgagee, and where two years thereafter she joined with her coexecutor, the surviving partner, in executing a security deed to a creditor, reciting therein that it was given subject to the mortgage above mentioned, and reciting the amount then due on the mortgage, the amount so recited not including what she claims to have advanced, and where, in part consideration for such deed, the creditor agreed not to foreclose the mortgage within three years, and further agreed to reduce the rate of interest thereon; held, that, even if the widow could be subrogated to the rights of the original mortgagee to the amount claimed by her, her right, under the facts above recited, was waived in favor of the creditor who had taken up the mortgage.</p> <p>7. Where a year’s support has been set aside jointly for a widow and her minor son out of the estate of the deceased husband and father, the widow represents the minor, and the latter can not file an independent intervention for the purpose of securing the payment of the judgment for year’s support, without showing that the widow has failed or neglected to intervene or that she is in collusion with other creditors, or setting up some other equitable reason.</p> <p>8. Where a mortgagee pays off State, county, or municipal tax fi. fas. issued against property covered by his mortgage, the fi. fas. being transferred to him, he has the same rights and priority of payment as had the State, county, or city. Where, after he has paid such fi. fas., the property is seized by a court of equity through its receiver and the transferee is enjoined from foreclosing his mortgage or asserting his lien, it is not error for the court, before final decree and in vacation, to order its receiver to pay off the tax fi. fas. out of the income received by him from the rent of the mortgaged property.</p> <p>9. Where property is in the hands of the receiver and there are several creditors claiming priority as to their liens, it is not error for the court to render a final decree fixing the rights and priorities of the different creditors before the sale of the property.</p>

<p>1. In the trial of an action brought by a passenger against a railroad, company for personal injuries, it was error to charge as follows: “As a carrier of passengers the railroad company, its officers and servants are bound to exercise more than all ordinary and reasonable care and diligence, that is to say, a company will be liable to passengers for injuries to them, unless extraordinary care and diligence be used, and slight neglect on the part of the agents and servants of the company will be sufficient evidence to fix its liability. The law is laid in wisdom, as human life is at great risk, especially when public carriers employ steam for rapid transit; and too much diligence can not be required at their hands; for slight neglect they are and ought to be responsible, and, outside of the provisions of our own statute law, such it is believed is the rule everywhere in the civilized world.”</p> <p>2. While a judge, in discussing with counsel the admissibility of testimony, may, for the purpose of testing the accuracy of their positions and giving the reasons for his rulings thereon, refer to the evidence or the statements of witnesses without necessarily violating section 4334 of the Civil Code, it is not proper to go outside of the line of legitimate discussion upon the point presented, and allude to the testimony of a particular witness in such a manner as to apparently give to it judicial indorsement and approval.</p> <p>3. It is always erroneous, in charging the jury, to express with reference to any disputed issue an opinion as to what has been proved, and especially to state that a controverted fact has been proved by undisputed evidence.</p>

<p>Action on insurance policy. Before Judge Norwood. City court of Savannah. May 25, 1899.</p>

<p>Inasmuch, as the evidence for the plaintiff would have supported a finding of negligence against the defendant and did not necessarily require a finding that the plaintiff’s husband could by the exercise of ordinary diligence have avoided the consequences to himself of such negligence, the case should have been submitted to the jury and not disposed of by the granting of a nonsuit. The lines upon which the case should be tried are indicated in the opinion herewith filed.</p>

<p>Complaint, Before Judge Norwood. City court of Savannah. August 2, 1899.</p>

<p>Action on insurance policy. Before Judge Norwood. City court of Savannah. July term, 1899.</p>

<p>Indictment for incest. Before Judge Janes. Douglas superior court. November term, 1899.</p>

<p>Petition for injunction. Before Judge Bennet. Ware -county. January 20, 1900.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. February term, 1899.</p>

<p>1. In order to entitle a defendant to open and conclude the argument, he must in his answer admit enough to make out a prima facie case for the plaintiff, and such admission must be made, and the right to open and conclude asserted, before the plaintiff submits any evidence in the case.</p> <p>(ffl) Upon a review of the ruling announced in the first headnote to the case of Abel v. Jarratt, 100 Ga. 732, the same is affirmed.</p> <p>(5) The rule laid down in the decisions of this court in the cases of Ransone v. Christian, 56 Ga. 351, headnote 2, and Ocean Steamship Co. v. Williams, 69 Ga. 251, headnote 2 and subdivision (a) thereunder, was repealed by the provisions of the act approved December 24, 1888, (Acts of 1888, p. 35), which now appear in the Civil Code, 3 3891. The manifest policy indicated in that act is to deny to the defendant in any case the right to open and conclude, unless he relieves the plaintiff of the burden of making out a prima facie case.</p> <p>12. There was sufficient evidence to warrant the verdict.</p>

<p>Foreclosure of lien. Before Judge Falligant. Chatham superior court. August 2, 1899,.</p>

<p>1. On the trial of an action for damages brought against a railway company on the theory that the relation of master and servant existed between it and the plaintiffs deceased husband, who met his death by reason of the negligence of a third person alleged to have been, also in the company’s employ, it is error to reject evidence tending to establish its defense that it had never employed either the plaintiffs husband or such third person, but that both were really in the service of an altogether different company operating under a similar name.</p> <p>2. A new trial is less reluctantly granted because the verdict was so excessive in amount as to suggest gross mistake or undue bias on the part of the jurors who returned the same.</p>

<p>Where employees are in the service and subject to the general control and direction of a common master and the labor of each conduces to the accomplishment of the same general purpose for which they are employed, they are fellow-servants within the meaning of the rule stated in section 2610 of the Civil Code, that, “except in case of railroad companies, the master is not liable to one servant for injuries, arising from the negligence or misconduct of other servants about the same business,” although they may be employed in different departments of duty, and so far removed from each other as that one can in no degree control or influence the conduct of the other.</p>

<p>1. The State of Georgia, as owner of the beds of all tide-waters within? its jurisdiction, has absolute power to sell or lease such’ beds, or any portion thereof, to any of its citizens upon any terms or conditions which its legislature may prescribe.</p> <p>2. An attack upon the constitutionality of an act of the General Assembly, based on the grounds that “it contains matter different from what is expressed in the title thereof, and refers to more than one subject-matter,” without further specification, is too vague and indefinite for consideration by a court. The same is true of an attack alleging in general terms that the act “is invalid and unconstitutional.”</p> <p>3. Where an act which, among other things, prescribed “the method of lease of public domain within the State of Georgia for oyster planting, propagation, and cultivation,” provided that a lessee should have “no authority to sublet or to assign his lease until after the expiration of five years from the date of his entry thereunder,” and the act in question was subsequently amended by striking out the provision just referred to, it would then' be the right of any lessee to assign his; lease, as soon as he acquired the same; and this is true although a provision in the original act was left of force which declared, "that in the event the said lessee shall fail to comply with the requirements of [the law] as to the cultivation of said territory, he shall forfeit so much of said territory as has not been cultivated as hereinbefore required.” In case of an assignment, the duty of complying with the-provisions of the law would devolve upon the assignee, and in case of his failure to meet the legal requirements his right to the lease would be forfeited. But the right to proceed in courts to have such forfeiture declared vests in the State alone.</p> <p>4. When a statute expi-essly declares that a specified chart made and published by the “United States Geodetic Survey” shall be conclusive-evidence of the location of natural oyster-beds upon the coast of Georgia, and the State', in pursuance of such a statute, makes contracts with its citizens whereby it leases to them territory for oyster propagation, which, according to such chart, embraces no natural oyster-beds, such contracts are absolutely binding, and their validity can not be affected by the passage of a subsequent statute amending the former by striking therefrom the word “conclusive,” or by parol evidence showing, or tending to show, that the territory in question did -in fact embrace natural oyster-beds.</p> <p>5. That unlawfully taking oysters from private beds held under laws from the State may be indictable and punishable under the criminal laws does not prevent the owner of such beds from enjoining insolvent persons from committing depredations thereon, when it is apparent that without such remedy the damage will be irreparable.</p> <p>6. Under the evidence disclosed by the record, and in view of the law applicable thereto, there was no error in granting the injunction.</p>

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

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

<p>Indictment for murder. Before Judge Spence. Worth superior court. April term, 1899.</p> <p>The' motion for a new trial contained, in addition to the ground dealt with in the first headnote, and other grounds which need not be set forth, the following: Because, as the defendant .started to the stand to make his statement and before he had uttered a word, the court said to him, “Now confine yourself, to the issues in this case.” Later, while he was making his statement and explaining circumstances testified about by the State’s witnesses relative to hiring some cotton-pickers and weighing-some cotton,— which defendant _ insisted was material and relevant, he ivas interrupted by the court, who said to him, ’“Make your statement about this,- — -what you had to do with it. The court hasn’t got time for you to ramble all over the country.” Thereupon the defendant said, “Judge, let me tell about, the cotton-picking ”; and the counsel for the defendant said to the court that the defendant was an ignorant negro, and he would be glad if the court would bear with him as much as possible. The court then said to the defendant, “Well, go on and get through.” It is complained that the interruptions and language used by the court were calculated to and did embarrass the defendant, and suppress and shake his statement, and diminish its effect upon the jury.</p> <p>The instructions referred to in the third headnote were as follows; “ Take any contradictory statements made by the defendant, if any were made or shown to be made by the testimony ; see what explanation he made of any facts and circumstances which pointed to him as the guilty party, if any; see what explanation he made, if' it was possible for him to explain these facts and circumstances, if necessary, so as to determine whether you are satisfied beyond a reasonable doubt of the defendant’s guilt.” It is complained that this contained an intimation of the court’s opinion of what had been proved.</p>

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

<p>Action for damages. Before Judge Gober. Cobb superior court. August 25, 1898.</p>

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

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

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

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

<p>Indictment for simple larceny. Before^ Judge Harris. Meriwether superior court. February term, 1899.</p>

<p>Indictment for working on Sunday. Before Judge Prior. City court of Hall county. May term, 1899.</p>

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

<p>Indictment for arson. Before Judge Littlejohn. Dooly superior court. February term, 1899.</p>

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

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

<p>Indictment for larceny from railroad-ear. Before Judge Calhoun. Criminal court of Atlanta. June 17, 1899.</p>

<p>Indictment for murder. Before Judge Felton. Houston -superior court. July 1Y, 1899.</p>

<p>Indictment for simple larceny. ■ Before Judge Spence. Worth superior court. April term, 1899.</p>

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

<p>Indictment for larceny from the house. Before Judge Janes. Haralson superior court. July term, 1899.</p>

<p>Indictment for opprobrious words. Before Judge Winn. City court of Gwinnett. July term, 1899.</p>

<p>Indictment for simple larceny. Before Judge Smith. Tel-fair superior court. April term, 1899.</p>

<p>Indictment for burglary. Before Judge Harris. Coweta .superior court. March term, 1899. .</p>

<p>Petition for certiorari. Before Judge Janes. Polk countyEebruary 15, 1899.</p>

<p>Indictment for setting fire to an outhouse. Before Judge Littlejohn. Sumter superior court. May term, 1899.</p>

<p>Complaint. Before Judge Janes. Haralson superior court. July 22, 1899.</p>

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

<p>Certiorari. Before Judge Harris. Carroll superior court, August 1, 1899.</p>

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

<p>Trover. Before Judge Janes. Polk superior court. February term, 1899.</p>

<p>Affidavit of illegality. Before Judge Hart. Laurens superior court. January term, 1899.</p>

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

<p>Trover. Before Judge Freeman. City court of Newnan. January term, 1899. s</p>

<p>Action for damages. Before Judge Harris. Troup superior court. January 21, 1899.</p>

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

<p>Appeal. Before Judge Harris. Troup superior court. May term, 1899.</p>

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

<p>Action for damages. Before Judge Hart. Laurens superior court. July term, 1899.</p>

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

<p>Money rule. Before Judge Hart. Jasper superior court. March 'term, 1899.</p>

<p>Complaint. Before A. C. Pate, judge pro hac vice. Laurens superior court. January 26, 1899.</p>

<p>Indictment for assault with intent to murder. Before Judge Littlejohn. Chattahoochee superior court. March term, 1899.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. July 22, 1899.</p>

<p>Indictment for adultery and fornication. Before Judge Harris. City court of Floyd county. September 22, 1899.</p>

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

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

<p>Indictment for burglary. Before Judge Ilenry. Eloyd superior court. July term, 1899.</p>

<p>Indictment for burglary. Before Judge Smith. Pulaski •superior court. August term, 1899.</p>

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

<p>Indictment for shooting at another. Before Judge Henry. Bloyd superior court. July term, 1899.</p>

<p>Indictment for adultery and fornication. ‘ Before Judge Henry. Floyd superior court. July term, 1899.</p>

<p>Complaint. Before Judge Felton. Muscogee superior court. -November term, 1898.</p>

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

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

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

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

<p>Complaint. Before Judge Willis. City court of Columbus-July term, 1899.</p>

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

<p>Accusation of selling liquor. Before Judge Proffitt. City ■court of Elberton. May term, 1899.</p>

<p>Motion for damages.</p>

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

<p>Complaint. Before Judge Littlejohn. Sumter superior court. December term, 1898.</p>

<p>Petition to reform deed. Before Judge Sheffield. Early superior court. October term, 1898.</p>

<p>Complaint. Before Judge Butt. Sumter superior court. November term, 1898.</p>

<p>Alimony. Before Judge Fite. Whitfield county. June 22, 1899.</p>

<p>Petition for injunction. Before Judge Lumpkin. Pulton county. July 25, 1899.</p>

<p>Motion to open default. Before Judge Littlejohn. Sumter superior court. November term, 1898.</p>

<p>Action for damages. Before Judge Littlejohn. Macon superior court. May term, 1899.</p>

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. November term, 1898.</p>

<p>Complaint. Before D. L. Henderson, judge pro hac vice. Dooly superior court.- February term, 1899.</p>

<p>Action for damages. Before Judge Littlejohn. Sumter superior court. May term, 1899.</p>

<p>Motion to open default. Before Judge Littlejohn. Sumter superior court. May term, 1899.</p>

<p>Complaint. Before Judge' Sheffield. Colquitt superior court. June term, 1899.</p>

<p>Injunction. Before Judge Littlejohn. Dooly county. July 1, 1899.</p>

<p>Equitable petition. Before Judge Hansell. Colquitt superior court. April term, 1899.</p>

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

<p>Complaint in trover. Before Judge Smith. Dodge superior court. September term, 1898.</p>

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

<p>Appeal. Before Judge Smith. Wilcox superior court. March term, 1899.</p>

<p>Complaint. Before Judge Williams. City court of Way-cross. January 23, 1899.</p>

<p>Dispossessory warrant. Before Judge Smith. Wilcox superior court. September term, 1898.</p>

<p>Petition for injunction. Before Judge Smith. Telfair ■county. October 6, 1899.</p>

<p>Complaint. Before J. H. Thomas, judge pro hac vice. City-court of Baxley. June term, 1899.</p>

<p>Action for damages. Before Judge Bennet. Ware superior court. April term, 1899.</p>

<p>Indictment for burglary. Before Judge Bussell. Gwinnett superior court, October term, 1899.</p>

<p>Petition for certiorari. Before Judge Bussell. Clarke superior court. October term, 1899.</p>

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

<p>Indictment for forgery. Before Judge Candler. Fulton superior court. ' September term, 1899.</p>

<p>Indictment for selling liquor. Before Judge Freeman. City court of Newnan. October term, 1899.</p>

<p>Indictment for murder. Before Judge Butt. Talbot superior court. September term, 1899.</p>

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

<p>Certiorari. Before Judge Butt. Marion superior court. October term, 1899.</p>

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

<p>Indictment for burglary. Before Judge Bennet. Camden superior court. October term, 1899.</p>

<p>Indictment for misdemeanor. Before Judge Proffitt. City court of Elberton. November term, 1899.</p>

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

<p>Accusation of assault and battery. Before Judge Proffitt. City court of Elberton. November term, 1899.</p>

<p>Accusation, of malicious mischief. Before Judge Calhoun. Criminal court of Atlanta. November term, 1899.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. March 27, 1899.</p>

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

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

<p>Action on contract. Before Judge Calhoun. City court of Atlanta. April 29, 1899.</p>

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

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

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

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

<p>Action on insurance policy. Before Judge Beid. City court of Atlanta. May term, 1899.</p>

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

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

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

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

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

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

<p>Complaint in trover. Before Judge Calhoun. City court of Atlanta. March term, 1899.</p>

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

<p>Action for damages. Before Judge Reid. City court of' Atlanta. May 31, 1899.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. July 21, 1899.</p>

<p>Motion for new trial. Before Judge Reid. City court of Atlanta. July 10, 1899.</p>

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

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

<p>Accusation of buying and receiving stolen goods. Before Judge Calhoun. Criminal court of Atlanta. December term, 1899.</p>

<p>Indictment for burglary. Before Judge Harris. Coweta superior court. September term, 1899.</p>

<p>Indictment for assault with intent to rape. Before Judge Bennet. Glynn superior court. December 16, 1899.</p>

<p>Accusation of misdemeanor. Before Judge Calhoun. Criminal court of Atlanta. November 25, 1899.</p>

<p>Certiorari. Before Judge Smith. Pulaski superior court. December 22, 1899.</p>

<p>Indictment for larceny from the house. Before Judge Candler. Fulton superior court. September term, 1899.</p>

<p>Indictment for arson. ’• Before Judge Harris. Coweta superior court. September term, 1899.</p>

<p>Indictment for murder. Before Judge Littlejohn. Macon superior court. November term, 1899.</p>

<p>Indictment for burglary. Before Judge Harris. Carroll superior court. October term, 1899.</p>

<p>Complaint. Before Judge Smith. Wilcox superior court. March term, 1899.</p>

<p>Indictment for assault with intent to rape. Before Judge Seabrook. Effingham superior court. November term, 1899.</p>

<p>Petition for injunction. Before Judge Evans. Screven county. September 2, 1899.</p>

<p>Certiorari. Before Judge Candler. DeKalb superior court. January 1, 1899.</p>

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

<p>Action for damages. Before Judge Eve. City court of Nichmond county. March 11, 1899.</p>

<p>Motion to reinstate motion for new trial. Before Judge Candler. DeKalb superior court. April 15, 1899.</p>

<p>Complaint for land. Before Judge Evans. Johnson superior court. March term, 1899.</p>

<p>Levy and claim. . Before Judge Henry. Burke superior court. April 6, 1899.</p>

<p>Certiorari. Before Judge Evans. Tattnall superior court. April term, 1899.</p>

<p>Appeal. Before Judge Brinson. Richmond superior court. April term, 1899.</p>

<p>Complaint. Before Judge Evans. Screven superior court. May term, 1899.</p>

<p>Certiorari. Before Judge Brinson. Richmond superior, court. April term, 1899.</p>

<p>Petition for injunction. Before Judge Brinson. Richmond county. November 27, 1899.</p>

<p>Equitable petition. Before Judge Ealligant. Chatham ■superior court. March term, 1899.</p>

<p>Foreclosure of lien. Before Judge Eve. City court of Richmond county. August 7, 1899.</p>

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

<p>Action to forfeit charter, etc. Before Judge Falligant. Chatham superior court. January 28, 1899.</p>

<p>Appeal. Before Judge Falligant. Chatham superior court. May 16, 1899.</p>

<p>Certiorari. Before Judge Seabrook. Bryan .superior court. May term, 1899.</p>

<p>Certiorari. Before Judge Ealligant. Chatham superior court. June term, 1899.</p>

<p>Action for damages. Before Judge Seabrook. McIntosh superior court. May term, 1899.</p>

<p>Certiorari. Before Judge Seabrook. McIntosh superior court. May term, 1899.</p>

<p>Motion to reinstate. Before Judge Falligaut. Chatham superior court. February 28, 1899.</p>

<p>Action for damages. Before Judge Seabrook. McIntosh superior court. May term, 1899.</p>

<p>Action for damages. Before Judge Seabrook. Liberty superior court. February 16, 1899.</p>

<p>Action for damages. Before Judge Seabrook. Effingham superior court. May term, 1899.</p>

<p>Equitable petition. Before Judge Seabrook. Effingham superior court. May term, 1899.</p>

<p>Indictment for murder. Before Judge Estes. White superior court. October term, 1899.</p>

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

<p>1. Error in the charge of the court on the subject of contributory negligence will not work the reversal of a judgment in the plaintiff’s favor, where there was no evidence of any contributory negligence on. the part of the plaintiff.</p> <p>2. In the light of the entire charge of the court, no material error appears to have been committed, and the evidence was sufficient to warrant the verdict.</p>

<p>A sale by the owner of personalty of an undivided half-interest therein to another, uhder a contract contemplating that the property shall be shipped and sold and the proceeds divided, will, when the marketing of the property necessarily requires expense which, under the contract, is to be a joint charge against the parties, constitute them partners as to third persons, although the contract further stipulates that one of them shall “ own and control the shipments and sales ” until he is reimbursed for an advance made by him to the other, and the net proceeds shall then be divided.</p>

<p>Certiorari. Before Judge Eelton. Bibb superior court. November term, 1898.</p>

<p>Exceptions to award. Before Judge Eelton. Bibb superior court. April term, 1899.</p>

<p>Neither the levy of an execution issued upon an affidavit to foreclose a lien on personalty, nor the fact that the levying officer, after disregarding a counter-affidavit filed by the defendant in execution and selling the property levied on, is about to put the purchaser in possession, constitutes a “ pending proceeding ” to stay which a petition for injunction can be maintained in the superior court of a county in which no defendant against whom substantial relief is prayed resides.</p>

<p>1. Under the code of this State, the defendant in an action arising ex delicto may set up as a defense any claim or demand which he may have against the plaintiff for a similar cause of action, and if, in estimating the damages respectively sustained by the parties, the jury shall ascertain that those sustained by the defendant were greater in amount than those sustained by the plaintiff, the defendant may enter up judgment for the amount so found in his favor,'and enforce the same by execution.</p> <p>2. When in an action instituted to recover damages for a malicious prosecution the defendant by his answer admits the act complained of to have, been done, he is entitled to all the privileges of one holding the affirmative of the issue, notwithstanding the answer goes further and avers that the act was done without malice and with probable cause.</p>

<p>1. A deed purporting to convey " a certain parcel of land lying and be-' ing in ” a designated county of this State, known as the grantor’s “ own residence, which include six hundred acres,” is not void for uncertainty in the matter of description, and is admissible in evidence without proof of execution, as against defendants who in their answer to the plaintiff’s petition admit the execution of this deed and that it was intended to convey to the latter the premises in controversy in the litigation to which such petition and answer relate,— the more especially when the deed is apparently genuine, more than thirty years old, and comes from the proper custody.</p> <p>2. Parol evidence is admissible to explain ambiguous descriptive terms in a written instrument and to apply the same to their subject-matter.</p> <p>3. The evidence fully warranted the verdict, and it does not appear that the court erred in denying a new trial.</p>

<p>1. One who bought land, paid a part of the purchase-money, gave a promissory note for the. balance, and took a bond for titles, with knowledge of an existing incumbrance on the property, and who subsequently entered into an agreement with the vendor, recognizing liability on the. note and, in effect, renewing the promise to pay therein contained, upon the vendor’s removing the incumbrance, could' not defeat a recovery upon the note when on the trial of an action thereon brought by the vendor it affirmatively appeared that the latter had complied with the terms of the agreement and could and .would on the payment of the note have made the defendant a good title.</p> <p>2. It was not, on the trial of such an action, a fact material to the case that the land declined in value after the note for the purchase-money had matured. Nor that ordinarily property under incumbrance was not marketable.</p> <p>3. Nor was it good matter of defense that the defendant had never been placed in possession of the premises, it not appearing that he had ever desired possession, and it being shown that he could at any time have obtained possession on demand therefor.</p> <p>4. The amendment to the petition offered by plaintiff pending the trial was subject to several of the objections set up in the special demurrer thereto, and was properly disallowed.</p> <p>5. The absence of the judge from the court-room for a brief space of time while the trial is in progress will not, in a case where the evidence demanded the verdict as rendered, he, in the light of the former rulings of this court, a sufficient reason to reverse the judgment, ■when such absence was known to counsel, and there was no reguest, to suspend the trial, no objection to the absence, and no motion for a mistrial upon the judge’s return. The rulings made in O’Shields v. State, 81 Ga. 301, and Pritchett v. State, 92 Ga. 65, criticised and disapproved; but, in the absence of an application to review the same, they are followed in the present case.</p> <p>6. The rulings on evidence were free from error; the charge, taken as a whole, fairly and properly submitted the case to the jury; the evidence demanded the verdict as rendered, and the court did not err in refusing to grant a new trial.</p>

<p>1. A promissory note given by a married woman for .the purpose of paying her husband’s debt is not illegal, but merely void or voidable at her election as against the original payee.</p> <p>‘2. If a married woman signs a promissory note the consideration of which is partly her own debt and partly the debt of her husband, the payee can recover in a suit on the note that portion which was based upon the debt of the wife, the amount of her debt and of that of the husband being clearly shown by the evidence.</p> <p>3. The fact that the husband cultivates his wife’s lands does not raise a presumption of law or of fact that he is her agent.</p> <p>■4. Where a husband signs a note as the agent of his wife, and she, in her answer to a suit thereon, denies that he was her agent, it is error to admit his declarations to prove his agency; nor, until his agency is shown by at least prima facie evidence, are such declarations admissible to bind the wife.</p> <p>5. If the husband be introduced as a witness and deny making such declarations, evidence tending to show that he did make them is admissible, not for the purpose of establishing the agency but only to contradict him; and the trial judge should so instruct the jury.</p> <p>8. Where a contract is sued upon which stipulates for the payment of attorney’s fees, and where of several pleas filed by the defendant one is sustained, the plaintiff is not entitled to recover any attorney’s fees.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. August 10, 1899.</p>

<p>1. Where the by-laws of a mutual benefit society require its members to» make payments of the assessments by a certain day in each month or be suspended, and it appears that a member failed to pay his assessments within the time required, and his failure to pay was reported to the lodge by its collector, and the lodge took affirmative action suspending the member, and he died thereafter without having been reinstated, the society is not liable on the contract of insurance issued to the member before his suspension.</p> <p>2. Under the by-laws of the subordinate lodge it was not necessary, in order to suspend a delinquent who had failed to pay his assessments, to have him tried by the lodge. All that was neccessary was. a report to the lodge of his delinquency and affirmative action thereon by the lodge.</p> <p>3. An offer by a third person, made after the expiration of the proper time of payment, to pay the assessment of the delinquent, will not bind the society. This is especially true when the offer was made to a boy who, so far as the record discloses, had no authority to bind the society.</p>

<p>Trover. Before Judge Henry. Burke superior court. April term, 1899.</p>

<p>Certiorari. Before Judge Eelton. Bibb superior court. April term, 1899.</p>

<p>Action on contract. Before Judge Nottingham. City court of Macon. August 8, 1899.</p>

<p>A petition for the specific performance of a contract for the conveyance of land, which fails to so describe the land that the court may, with-at least reasonable certainty, know the land of which it is asked to decree a conveyance, is demurrable for the want of equity.</p>

<p>There was not sufficient evidence of mental incapacity to authorize the jury to set aside voluntary deeds made by the grantor to certain of his children and grandchildren, there being no evidence of fraud practised 'or undue influence exerted upon him.</p>

<p>Levy .and claim. Before Judge Reese. Taliaferro superior court. February term, 1899.</p>

<p>When personal property Is sold and delivered with the condition affixed to the sale that the title is to remain in the vendor until the payment of the purchase-price, such reservation of title is invalid as to third parties, unless the contract embracing the same is reduced to writing, duly attested, and recorded as prescribed by law.</p>

<p>1. When a record brought to this court contains nothing from which it could even be inferred that any question of the constitutionality of a particular statute upon which the plaintiff’s action was based was at any stage of the case made in the trial court, or that such court in any manner undertook to pass upon such a question, the mere fact that the bill of exceptions assigns error upon a refusal to sustain a general demurrer to the petition and dismiss the action, and also upon the overruling of a motion for a new trial containing a ground alleging that the verdict was contrary to law, does not properly raise here any question upon the constitutionality of such statute; and this is so though the bill of exceptions does in general terms state that the above-indicated rulings were erroneous because that statute was “class legislation and special legislation and obnoxious to the constitution of the State, and therefore void,” and requires “ impossibilities, and puts as a penalty the value of the goods lost, and takes the property of defendant without any just compensation therefor, and therefore amounts to confiscation, which is unconstitutional and void.”</p> <p>2. Treating sections 2317 and 2318 of the Civil Code as valid and constitutional, the petition in the present case set forth a cause of action as against the demurrer thereto filed by the defendant.</p> <p>3. The trial judge having used in the hearing of the jury language well calculated to impress them that in his opinion the plaintiff was entitled to recover the full amount sued for, and there being evidence warranting a finding in his favor for an amount less than that actually found, there must, under the provisions of section 4334 of the Civil Code, be a new trial.</p>

<p>1. Where a ground of a motion for a new trial alleging error in admitting evidence fails to state that the objection set forth in the motion was made at the time the evidence was offered, the omission can not be cured by stating in a bill of exceptions, sued out after the time for excepting to rulings at the trial has expired, the fact that the objection in question was made at the proper time.</p> <p>2. Actual and moral fraud on the part of one holding property in trust for another, whereby the title is apparently transferred to the trustee in his individual name and right, renders void any deed executed in pursuance of su'ch fraud; and the cestui que trust, he being innocent, may, as against the perpetrator of the fraud or one taking with actual notice thereof, attack such deed without resorting to equitable pleadings to set the same aside.</p> <p>3. It is not proper for the judge to inform a jury that particular evidence is entitled to great consideration, but he should leave them free to determine for themselves the weight to be given to it.</p> <p>4. Where an administrator duly exposed for sale land belonging to the estate of his intestate, caused the same to be “ bid in ” by a person acting for him, conveyed the land to a named person in trust for a minor son of the administrator, had the deed recorded, charged himself as administrator with the proceeds of the sale, accounted therefor to .the heirs of the intestate’s estate, and for years returned the land for taxation in the name of the minor son: Held, that as a result the title, so far as the father and son were concerned, passed to the latter; and this is true although the administrator’s deed was never delivered to the person named therein as trustee, or to the son, but the possession thereof was retained by the administrator.</p> <p>5. Irrespective of the special questions presented in the motion for a new trial filed by the plaintiff below, the court erred in not setting the verdict aside on the ground that the evidence demanded a finding in the plaintiff’s favor as to the tract of land described in the petition, for which there was a finding in favor of the defendant.</p> <p>6. When a plaintiff sues for two distinct parcels of realty in the same action, and there is a verdict in his favor as to one and in favor of the defendant as to the other, a general grant of a new trial at the instance of either party reopens the entire case for investigation.</p>

<p>1. Where a claimant of personalty which had been levied on was allowed by the officer to retain possession thereof upon giving to him a bond with security, conditioned “ to have the said described personal property forthcoming to answer the final judgment of the court in said case and pay the final condemnation-money as provided by the statute,” and the property was subsequently found subject, the principal and surety were liable in the event they failed to comply with the conditions named in the bond, and were not relieved therefrom by afterwards delivering the property to the same officer upon a regular forthcoming bond given in another claim case arising upon the levy of a junior execution.</p> <p>2. That the plaintiff in the senior execution, after obtaining in the justice’s court a judgment on the first bond, did not seek to have the proceeds of the sale of the property under the junior execution applied to the senior execution, or object to the application of such proceeds to the junior execution, would not afford a sufficient reason for discharging the surety on the trial of an appeal entered to the judgment rendered against him and his principal in the magistrate’s court.</p>

<p>"Where in an affidavit to foreclose the lien of a laborer it was alleged that the defendant was indebted to the affiant in the sum of seventy-two dollars, which indebtedness arose under a contract by which the defendant agreed to pay the affiant the sum of one hundred and twelve dollars for labor as a farm hand for a given year, it was error to dismiss the proceeding on the ground that the affidavit showed that the amount claimed was not within the jurisdiction of a justice’s, court. In such a case it is the amount claimed to be due, and not the amount originally contracted to be paid, which determines the jurisdiction.</p>

<p>Citation and appeal. Before Judge Reese. Elbert superior court. March term, 1899.</p>

<p>1. If a general agent of a life-insurance company, who appoints agents to work for the company under his supervision and to report to him, discounts a promissory note taken by them from an applicant for insurance for a premium upon a policy to be issued and delivered to the applicant, such general agent can not, when he brings an action upon</p> <p>■ the note, set up that he was a bona fide purchaser thereof for value before maturity, and thus cut off a defense that the plaintiff acquired the note before '¡the delivery of the policy, and that the consideration of the note failed because the policy delivered was not of the kind for which the application was made.</p> <p>2. If, however, the applicant was able to read the application presented for his signature and with full opportunity so to do negligently failed to read it, and signed without so doing, and if the policy actually issued and delivered to him was one exactly of the kind described in the application, he could not set up in defense to such an action that the agent at whose instance he signed the application, by fraudulently representing its'contents, induced him to sign an application which he really did not intend to make. In such a case the general agent would be authorized to act upon the assumption that the application was freely and voluntarily executed.</p> <p>3. When a duly approved copy of a writing alleged to be inaccessible was actually admitted in evidence, it is immaterial whether error was or was not committed in admitting testimony offered to establish the fact of inaccessibility.</p> <p>4. Where such a copy is in evidence, parol testimony as to its contents is inadmissible.</p> <p>5. The direction of the verdict for the defendant was erroneous.</p>

<p>It is not essential to the validity oí an appeal that the judge or justice in whose court the case was originally tried should affirmatively approve the appeal bond; for in case of its insufficiency the appellee may, because thereof, move in the appellate court to dismiss the appeal, and the motion, if well founded, will be granted unless the bond is by amendment made good.</p>

<p>Equitable petition. Before Judge Reese. Hancock superior court. August term, 189.9.</p>

<p>Petition for injunction. Before Judge Reese. Elbert county. December 15, 1899.</p>

<p>Action for damages. Before Judge Jones. City court of Clarkesville. - August term, 1899.</p> <p>Samuel P. Roberts, by his next friend, sued the Porter Manufacturing Company for damages for a personal injury claimed to have been sustained by him while in the employment of the defendant. His petition alleged that he was an employee of the defendant company, and while at work at a machine in its mills he was injured by reason of a defect in the machine which he was operating; that he was fourteen years old at the time he received the injury; and that he had never been warned by the defendant’s foreman of the danger incident to the operation of the machine. Upon the trial of the case the plaintiff testified that, at the time of his injury, he was fourteen years old, and that he had been working for the two preceding years at the same machine which injured him; that at the time he was put to work at it he was instructed how to operate it and warned to be careful; that the machine was known as a “ mule ” or spinning machine, and carried a number of threads, which threads were carried over two rollers and under another, which rollers were turned by cog-wheels, which were placed about two inches from the thread on the extreme left of the rollers; that there was no guard or protection between the cog-wheels and the rollers that carried the threads; that the duty of.the plaintiff was to tie broken threads and keep them running between the rollers; that at the time he was hurt the thread next to the cog-wheels broke, and as he was reaching his left hand to pick up this thread, and while raising the top roller with his right hand to pull the thread under it and between the rollers so as to tie it, his left forefinger was caught between the cog-wheels and crushed; that he was doing the work the best he knew how, and could not have gotten the thread and tied it without putting his hand where he did; that after he was injured the defendant put a protection or guard, made of tin, between the cog-wheels and the rollers, and that the machine could be worked just as well with such protection as without, and with no danger to the operator. Another witness for the plaintiff testified: “ This thread was running about two or three inches from the cog-wheels. He [plaintiffj had to put his hand over the rollers to pick up this thread; this is the only way to get the thread. I have done the same work several times, and came near getting my hand caught in the cog-wheels when I was not watching what I was doing. If a fellow gets in a hurry he is more apt to get his hand in there. If the stock is bad, the threads break worse, and it makes us have to work faster. . . The side of the cog next to where we worked turned out, and turned in on the back side, and the only way to get your hand in the cog was to put it over to the back of the machine.”</p> <p>On motion of the defendant’s counsel the court granted a non-suit, and to this ruling the plaintiff excepted.</p>

<p>1. In order that exceptions tendered pendente lite may be made the-basis of an assignment of error after final judgment, it is necessary that they shall be certified to be true by the presiding judge, and in the absence of any certificate the grounds of error therein alleged can not be considered ; nor can the same grounds of error be considered where a direct assignment thereon is made in the bill of exceptions, when it appears that such bill of exceptions was signed and certified more than four months after the decision complained of was made.</p> <p>2. There was no error in overruling the motion for a continuance.</p> <p>3. Where one takes the property of another without the consent of the owner and sells the same, a right of action inures to the owner to recover the value of such property on an implied promise to pay for the same, even if such taking be a larceny; and the action when so brought is one arising ex contractu and not ex delicto.</p>

<p>Equitable petition. Before Judge Spence. Decatur superior court. May term, 1899.</p>

<p>1. The parties to a written contract have the power to reform it, so as to correct a mutual mistake in reference thereto, without any new consideration passing between them, whether the mistake was as to the legal effect of the writing as it originally stood, or was caused by the accidental omission of words which they intended it to contain.</p> <p>2. Where one “ carrying on the business of a produce dealer in the city of Macon,” and “ running peddling wagons in said city and the suburbs thereof,” from which he sold produce, sold out the property employed by him in such business and its good-will to another, and, in consideration of the purchase of the same by the latter, agreed and bound himself “ not to enter into, or connect himself in any manner whatsoever in the produce business in the county of Bibb for the period of five years from the date of this agreement, without the consent and knowledge of the [other] party,” the contract, as a restraint upon trade, was not, under the general provisions of the law, unreasonable, and a violation of its terms could be prevented by injunction, if necessary.</p> <p>3. There is in the present bill of exceptions no assignment of error which presents for determination here the question whether or not the provisions of the act approved December 23, 1896, declaring unlawful certain " arrangements, contracts, agreements, trusts,” etc., would be applicable to a contract such as the one above indicated.</p>

<p>To charge the jury upon an hypothesis which there is no evidence to support is erroneous.</p>

<p>Equitable petition. -Before Judge Reese. Hart superior court. March term, 1899.</p>

<p>Complaint for land. Before Judge Reese. Glascock superior court. August 21, 1899.</p>

<p>1. Where a petition, was brought against several defendants, 'and, upon separate demurrers filed by each of them save one, was dismissed as to those who demurred, the result was to leave the case pending as between the plaintiff and the sole remaining defendant. This being so, there was no adjudication finally disposing of the case which the plaintiff could directly bring to this court for review. While a refusal to dismiss as to one of the demurring defendants might have authorized him to sue out a writ of error, because the ruling sought by him would -have been, so far as he was concerned, a final disposition of the case, this is not so as to the plaintiff, who proceeded, against several, and there was not a dismissal as to all.</p> <p>2. Even if the three bills of exceptions sued out in this case by the plaintiff below could be properly treated as the equivalent of a single one assigning error on all the rulings complained of, the result reached by dismissing the writs of error is the same as would have been arrived at by deciding upon their merits the questions presented; for the plaintiff’s petition was clearly multifarious. It would therefore serve no valuable end to specially direct that these bills of exceptions be filed as exceptions pendente lite.</p>

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

<p>Where on the trial of an issue formed by the filing of a defense by two joint defendants to the foreclosure of an alleged landlord’s lien for supplies furnished to make a crop, it does not appear that the relation of landlord and tenant existed between the plaintiff and both defendants, or that any demand for payment was made prior to the foreclosure, no legal judgment establishing such lien can be rendered.</p>

<p>Where a plaintiff in an equitable petition filed for the purpose of restraining a trespass upon land alleges and testifies that she has been in possession of the land and residing thereon for thirty years, and the defendant sets up title in himself, but his chain of title is defective on account of a missing link, it is error for the court to direct a verdict for the defendant.</p>

<p>Interpleader. Before Judge Gober. Cobb superior court. Eebruary 18, 1899.</p>

<p>Equitable petition. Before Judge Gober. Cobb superior court. December 2Y, 1898.</p>

<p>Inasmuch as the writ of ne exeat “ issues to restrain a person from leaving the jurisdiction of the State,” a petition for a writ of this nature, based on paragraph 3 of section 4886 of the Civil Code, does not afford any ground for ordering such a writ to issue, when it fails to allege that the defendant is removing, or about to remove, beyond the limits of the State, either himself or his property, or the specific property in which the plaintiff claims an interest.</p>

<p>Complaint. Before Judge Ben.net. Glynn superior court. August 5, 1899.</p>

Injunction. Before Judge Lumpkin. Fulton county. January 8, 1900. Held: that this did not divest the tax lien for the taxes of the vendor, nor could a transferee of the fi. fa. issued therefor against the vendor have claimed the fund in court arising from a sale under the execution against the vendee. ‘ The sheriff’s sale conveyed what the defendant [vendee] had; the lien attached to what the vendor…

<p>Equitable petition. Before Judge Bussell. Gwinnett superior court. March term, 1899.</p>

<p>1. The levy of an execution for $63 upon a tract of land worth from ■ $200 to $300 is not so excessive as to render a sale thereunder void.</p> <p>2. An execution issued from a superior court may he first levied upon real estate, notwithstanding the defendant, in execution may possess personal property sufficient in value to satisfy the execution hut does not point it out to the levying officer.</p>

Appeal. Before Judge Gober. Forsyth superior, court. February term, 1899.

<p>Action for the use and occupation of land. Before Judge Gober. Pickens superior court. April term, 1899.</p>

<p>Complaint. Before Enoch Eaw, judge pro hac vice. Cobb superior court. March term, 1899.</p>

<p>Action for accounting. Before Judge Fite. Catoosa superior court. February term,' 1899.</p>

<p>Complaint. Before Judge Fite. Whitfield superior court. April term, 1899.</p>

<p>Action on insurance policy. Before Judge Fite. Whitfield superior court. April term, 1899.</p>

<p>A suit brought in this State by a non-resident, and filed and entered by the clerk of the court, should not be dismissed on motion of the defendant on the ground that the plaintiff had not made the'deposit “ on account of costs ” as provided in section 5399 of the Civil Code. That section is intended for the protection of the officers of court, and whether the plaintiff does or does not comply with its terms is a matter with which ,the defendant has no concern.</p>

<p>1. Agency can not be proved by the declarations of an alleged agent, though made dum fervet opus.</p> <p>2. Where one delivers grain to another to be threshed and returned to the, owner, less the toil, a bailment is thereby created, and, after proof of loss, the burden is on the bailee to show proper diligence.</p>

<p>1. One in whose favor it has been finally adjudged that as against an insolvent person the former has the title and the right to the possession of given realty, but who is under an injunction, sued out at the instance of others, preventing him from taking possession, is entitled to have a receiver appointed to collect and hold rents which such insolvent is seeking by judicial process to collect from the tenants to whom he had undertaken to rent the premises.</p> <p>2. The above is true although the insolvent person may have obtained against his tenant a judgment for the rent, which was conclusive “ upon the latter.</p>

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

<p>Action for damages. Before Judge Harris. City court of Floyd county. March term, 1899.</p>

<p>An administrator cum testamento annexo can not lawfully sell lands for the purpose of paying debts or for distribution, when there are no debts, and such administrator has no authority to make, and is under no duty of making, a distribution of the estate among legatees- or devisees.</p>

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

<p>1. The term “ emigrant agent,” in the general tax act of 1898, means a person engaged in hiring laborers in this State to be employed beyond the limits of the same.</p> <p>2. The imposition of a tax upon such a person is not a regulation of interstate commerce.</p> <p>3. A law imposing a tax upon such a person is not such a restriction upon the right of a citizen, to move from one State to another as that it abridges the privileges or immunities of citizens of the United States, within the meaning of the fourteenth amendment to the constitution of the United States. Nor is such a law such a dis ■ crimination in favor of persons hiring laborers to be employed within the limits of the State as to amount, to a denial of the equal protection of the laws, within the meaning of that amendment. The case of Shepperd v. Commissioners, 59 Ga. 535, upon a'review thereof, is affirmed.</p> <p>4. Nor is such a law violative of any provision of the constitution of this State.</p>

<p>1. An emigrant is “ one who quits his country for any lawful reason, with a design to settle elsewhere, and takes his family and property with him.”</p> <p>2. It follows from the foregoing definition that one charged with a violation of a law prohibiting the soliciting or procuring of emigrants can not he convicted upon proof showing that the persons whom he solicited or procured to leave the State had no intention of abandoning their residence in this State or of acquiring a domicile in the other State, but were leaving merely for the purpose of temporarily engaging in work in the-latter State.</p>

<p>1. One may at pleasure repudiate a contract which his agent, in direct violation of positive instructions previously given him, undertakes in his representative capacity to make with a third person who is fully cognizant that such agent is transcending his authority in the premises. This familiar rule of law is peculiarly applicable to a case where it appears that the agent of a railway company attempted to make with himself, as consignor, a totally unauthorized contract of affreightment.</p> <p>2. There was, in the present case, no evidence authorizing a charge to the effect that, notwithstanding the agent may have violated his, instructions, yet if the railway company “had knowledge of such contract and acquiesced in it, then it would be liable to the plaintiff under that contract.”</p> <p>'3. For no reason assigned were other portions of the charge excepted to erroneous; and, save as to the matter referred to in the preceding note, no material error appears to have been committed at the trial.</p>

<p>A policy of insurance on the life of a bankrupt, though payable to his legal representatives, does not, if it have no cash surrender value, vest in the trustee as assets of the bankrupt’s estate. Accordingly, where a husband, within four months prior to the filing of his petition in bankruptcy, transferred to his wife an insurance policy on his life, which before such transfer was payable to his legal representatives, it was erroneous, on the petition of the trustee, filed upon the death of the bankrupt, pending the proceedings in bankruptcy, for the court to enjoin the widow from collecting, and' the insurance company from paying to her, the amount due upon the policy, it appearing that it had no cash surrender value either when the transfer was made or the petition in bankruptcy was filed.</p>

<p>Complaint for land. Before Judge Fite. Gordon superior court. February term, 1899.</p>

<p>1. Every question, involved in this case, as to the respective rights and, . obligations of a building and loan association and a member thereof who has received an advance upon his stock, has been settled by repeated adjudications of this court, and the law applicable to suits by such' associations against defaulting members has been clearly laid down.</p> <p>2. The instructions given by the court to the jury for arriving at the amount of the defendant’s liability were out of harmony with the established rules for determining the same, and were therefore erroneous.</p>

<p>1. Inasmuch as this court has no jurisdiction of a case as long as the same is pending in the court below, unless the judgment excepted to, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the case, it is manifest that it has no jurisdiction of a writ of error when the bill of exceptions merely complains of the overruling of a demurrer to a sheriff’s answer, to a money rule, and there has been no final judgment on the rule.</p> <p>2. When in a given case it should have been obvious that the writ of error was premature, this court will refuse an application to allow the bill of exceptions to be withdrawn and filed in the court below as exceptions pendente lite.</p>

<p>1. In order to entitle an insurance company to recover back money paid upon a policy of insurance, it is, under the Civil Code, § 2113, incumbent upon the company to show affirmatively that after making payment it discovered evidence showing itself not liable on the policy.</p> <p>2. Such evidence must consist of proof showing that, because of the fraud of the insured, the policy was ab initio void, or that after it issued he was guilty of conduct either vitiating the policy, or rendering it unconscionable for him to receive money thereon, and fraudulently concealed from the company, at the time of receiving payment, the fact that he had been guilty of such conduct.</p>

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

<p>1. One who obtains from the owner of land an option to purchase the same at a specified price within a time limited, and who with the owner’s permission enters upon the land for the purpose of prospecting for minerals during the continuance of the option, does not become after its expiration a tenant of the owner, and if he remains in possession without right is a mere trespasser.</p> <p>2. In such a case neither the owner nor his successor in title- can by dispossessory warrant eject as a tenant at sufferance either the purchaser of the option or one holding under him. Without regard to other questions, this case is, upon its facts taken most favorably for the plaintiff, controlled by the law above announced. In any view of the pleadings and evidence a verdict for the defendant was demanded, and the court ought to have granted his motion for a new trial.</p>

<p>Action on forthcoming bond. Before Judge Harris. City court of Floyd county. August 19, 1899.</p>

<p>1. When the question made in a cross-bill of exceptions controls the case as a whole, that question will be first considered.</p> <p>Ü. When a suit is instituted against the owner to foreclose a lien oh real estate, by a subcontractor, and the petition merely alleges that the defendant is indebted to such subcontractor in a gross sum for work done and material furnished in the construction of a house erected thereon, without stating what part of such sum is due for work done and what part is for material furnished; a proper demurrer to the petition should he sustained.</p>

<p>Certiorari. Before Judge Estes. Hall superior court. July term, 1899.</p>

<p>Injunction and receiver. Before Judge Gober. Gilmer superior court. December 21, 1899.</p>

<p>1. To write and publish of another that he is a liar is libelous, and gives to the person thus charged a. right of action.</p> <p>2. Though from the language employed in a publication there is uncertainty both as to whether there was an intention to make a charge of a libelous nature, and also as to whether, such being the purpose, the design was to apply this charge to a particular person, yet, if the language was in fact used with such an intention and design, that person may bring an action for a libel and maintain it by proper proof. It is not, in such a' case, essential that all of the public should understand the true intent and meaning of the defamatory matter. If it is on its face of that character, or susceptible of being so interpreted, and if those knowing the plaintiff are aware of the intention to make the libelous charge and apply it to the plaintiff, this is sufficient. 3. An amendment which sought to add to a petition legally setting forth a cause of action for a libel, by declaring upon another and distinct publication alleged to have been libelous, was properly rejected. If the matter sought to be set up by such an amendment was of itself actionable, it embraced a new and distinct cause of action, and was therefore not allowable. If it was not, rejecting it was, of course, proper.</p>

<p>Levy and claim. Before Jndge Henry. Chattooga superior court. January term, 1899.</p>

<p>1. There was no error in refusing to admit in evidence certified copies-of registered deeds, when it was not shown that the originals had been destroyed, or that they were lost or inaccessible, or that due-diligence had been exercised in endeavoring by proper search and inquiry to ascertain in whose custody they were.</p> <p>2. When the finding of a jury in a -justice’s court upon issues of fact is directly supported by testimony, it can not be said that the superior court on certiorari erred in holding that the verdict was not “ contrary to the evidence.”</p> <p>8. One who, while in possession of premises as the tenant of another, promised to pay rent therefor to a third person, could not, on the ground that the promise was made to prevent a wrongful eviction, defeat a distress warrant sued out by the promisee, without showing, that the threatened eviction would have been unlawful.</p>

<p>1. An officer who has made a sale tíf realty under execution is not, by virtue thereof, authorized to evict from the premises “any other person than the defendant, his heirs, or their tenants or assignees since the judgment.”</p> <p>2. A promise to pay rent made solely to prevent an unlawful eviction is not binding upon the person making the same.</p> <p>3. A judgment in favor of a plaintiff in execution against a claimant does not affect one to whom the latter had conveyed the property in dispute before the claim was filed, or one holding under such claimant’s grantee.</p>

<p>Garnishment. Before Judge Henry.. Floyd superior court. January term, 1899.</p>

<p>1. A common carrier of goods is excused from liability for loss of, or damage to, sucb property only in the event loss or damage results from the act of God or of the public enemy. 2. While a common carrier of goods who also transports live stock is as to the latter property a common carrier, certain exceptions have grown up in his favor, exempting him from liability for loss or injury caused by the nature and propensities of the animals.</p> <p>3. In the trial of an action brought against a carrier of live stock, to recover damages for loss of, or injury to, stock which he had undertaken to transport, after proof of loss or injury there is a presumption of law that he was at fault, and the burden rests upon him of showing that he is not liable, by reason of the happening of some cause which the law recognizes as an excuse.</p> <p>4. A carrier of live stock may by special contract so limit his liability for loss or damage that he will be liable only in the event he is guilty of “ gross negligence.”</p> <p>5. When in such a contract it is provided that the shipper shall “unload [the] stock (with the assistance of the company’s agent or agents) at his . . own risk,” it is the duty of the shipper either to be present himself, or have some one representing him present at the unloading of the stock; and in the trial of a suit in which the carrier relies on such a contract as a defense, it is not error to so charge the jury, if they are also instructed that a failure of the shipper to be present or have some one present in his behalf would not defeat a recovery by him unless it appear that the damages claimed resulted from such failure.</p>

<p>1. The liability of a common carrier of goods is that of an insurer, and in cases of loss no excuse avails such carrier, unless occasioned by the act of God or the public enemies of the State. He may not limit his legal liability by a notice to the shipper, but he may, with certain restrictions, make an express contract, and both-parties entering into it will be bound by its terms.</p> <p>:2. The liability of a carrier of passengers is not that of an insurer, .but such carrier is bound by law to extraordinary diligence to protect the lives and persons of his passengers. This duty can not be waived or released even by an express contract. Being one in which the public has an interest, public policy forbids such a waiver or release. •</p> <p>.3. A carrier who receives a passenger on one of its freight-trains is bound by the same standard of diligence as if the passenger were being transported on a regular passenger-train. What will amount to extraordinary diligence varies With the character of the train. A: passenger who voluntarily seeks to be transported on a freight-train takes the risk of the usual and necessary jolts and jars which occur in the operation pf such train, but the carrier is not -relieved from the use of extraordinary diligence to the passenger to .prevent- urn usual and unnecessary jolts and jars. An express contract entered into by the carrier and the passenger, under the terms of which the carrier is released from all liability to the passenger fdr personal ■injuries received while a passenger on such freight-train, is'in effect a contract by which the carrier undertakes to relieve itself from the consequences of the negligence of itself and .servants, and can not be enforced.</p>

<p>1. While the section of the code which denies to a carrier the right to limit his legal liability by a notice or entry on receipts given or tickets sold, but declares that he may do so by express contract, applies only to carriers of goods, yet, under general law, a carrier of passengers can not limit his legal liability for the consequences of his own negligence, by such notice, or even by express contract.</p> <p>2. A carrier of passengers, however, has the legal right to make reasonable rules and regulations for the conduct of its business in the transportation of passengers. When a regulation is made affixing a limit to the time in which a ticket shall be good, and the time of the limit affords to the passenger ample opportunity to make his journey with safety and convenience to himself, such a regulation, if otherwise reasonable, becomes a part of the contract of carriage, and if, after the expiration of the limit of time specified on. his ticket, the passenger tenders the same for his transportation and for refusing to pay fare is ejected from the train in a decorous and proper manner by the conductor, such ejection affords no cause of action against-the carrier.</p> <p>3. Á regulation so limiting the period of transportation, when it embraces a provision for refunding the purchase-price of the ticket, or any unused part, thereof, if not used within the limited period, is, as. a matter of law, held to be reasonable.</p>

Money rule. Before Judge Bussell. Clarke superior court. April term, 1899. . The property of the Princeton Manufacturing Company was sold under foreclosure of the first mortgage thereon, and, after paying the same, the sum of $2,033.86 remained in the sheriff’s hands, for which a rule was brought against him by the National Bank of Athens, which claimed under another mortgage, with the execution issued upon 'its foreclosure, for an amount greater than the fund so remaining.

<p>Action for damages. Before Judge Harris. City court of Floyd county. March term, 1899.</p>

<p>1. The intention of a testator, if legal, governs the construction of his will, and is to be ascertained from the words thereof. If he uses words which clearly create one estate though he designed another, his intention must yield to the rules of law.</p> <p>2. A will is to be construed by the law existing when, upon the testator’s death, the will takes effect. Whether words in a will made by a testator who died before the act of February 17, 1854, create an estate tail, is to be controlled by the decisions of the English courts construing such or similar words in devises of real property in connection with the statute de donis conditionalibus.</p> <p>3. A devise to A for her separate use, and in case she has no issue, to B, before the act of 1854, is a devise limited upon an indefinite failure of issue, which, under the English rules of interpretation, created an estate tail by implication under the statute de donis, and is therefore enlarged into a fee-simple estate by our act of December 21, 1821. An executory devise which was limited upon words importing an indefinite failure of issue of the first taker, under the law when the will in this case took effect, was uniformly held to be void for remoteness.</p>

<p>1. Where, in a will probated in 1847, a life-estate -was bequeathed to testator’s daughter, with remainder to her children, followed by an executory bequest to other legatees in the event she “ should die without issue,” the issue meant was such children, and not issue at large; arid so the failure of issue contemplated was a definite, not an indefinite failure. And the failure contemplated having happened, that is, the donee for life having died childless, the limitation over took effect.</p> <p>'2. A remainder may be created in money; and an executory bequest of money, limited upon a definite failure of issue, is valid. The bequest to the daughter, of the life-estate in the money, which was required by the will to be paid to her when she arrived at twenty-one years of age or married, did not create a separate estate in her, under the law of force when this will took effect; and consequently the marital rights of her husband attached, which, on reducing the fund to his possession, entitled him to its use during her life.</p> <p>.3. The verified return of the testator’s executor, made before 1852, approved and ordered to record by the court of ordinary having jurisdiction over the estate, and duly recorded, which showed a payment to all the legatees, including the aforesaid money bequest to the husband of the life-tenant, is admissible as prima facie evidence of such latter payment, in a suit by an executory legatee, upon the death of the life-tenant without leaving children, to recover said money from the administrator of the husband, he being a party in interest and connected with the testator’s estate, and the approval and recording of such return under the order of the court of ordinary being a judgment de bene esse which affects him. Evidence showing merely that all the executory legatees consented to the payment by the executor to the husband must be construed as meaning only that such legatees consented that the husband should receive what the law gave him,— the right to the use of the money during his wife’s life; and if any release beyond this can be shown, it must be based upon some consideration, in order to bind the executory legatees.</p> <p>4. The administrator of a remainderman or of an executory legatee may sue the personal representative of the life-tenant (and the husband in this case was a life-tenant pur autre vie) who had in his or her lifetime received a money bequest from the testator’s representative.</p> <p>5. The “ surviving children ” who were to take the ulterior bequest included the children who survived the testator, other than the daughter who is named as the life-tenant; but their estate was contingent, and vested, not at the death of the testator, but upon the death of the life-tenant without leaving children. Nevertheless, as such estate was not contingent as to the person of the ulterior legatees, it was an estate in each that was transmissible to the legal representatives of those who died after the testator and before the life tenant. The plaintiff, if he .recovers at all, can only recover the share of his intestate.</p>

<p>1. It is not, in a trial for murder, competent to prove that, years before the homicide, there had been a difficulty or quarrel between the accused and the deceased, without showing that in consequence thereof the former had continuously entertained hostile feelings towards the latter, or that the old grudge had something to do with the homicide; and, as a rule, the connecting evidence should begin with the killing and travel backwards to the original difficulty.</p> <p>2. That the accused in a criminal trial was allowed, without objection, to prove a portion of a conversation which had taken place between himself and another,- not within the res .gestse, does not entitle him as a matter of right to introduce evidence of the entire conversation.</p> <p>3. There being evidence warranting a conviction of voluntary manslaughter, there was no error in charging the jury upon this branch of the law of homicide.</p> <p>4. If one violently and forcibly breaks into the dwelling-house of another and immediately assaults with a weapon an inmate thereof, the householder may, without more, regard the entry as burglarious, and may justifiably kill the assailant, if he does so in good faith and under the honest belief that it is necessary to prevent the accomplishment of the unlawful purpose for which the entry was apparently made. If, on the other hand, one so breaks and enters another’s dwelling, and it is, after he does so, manifest that he does not meditate or intend violence or. the commission of any crime, it is not justifiable to kill him merely because of the unlawful entry of the house..</p>

<p>1. If one intentionally and recklessly discharges a gun at another, or in like manner fires a gun under such circumstances that the act would naturally tend to destroy human life, and death results therefrom, he is guilty cf murder.</p> <p>2. When death results to one from the discharge of a gun in the hands of another, who had no intention to kill, nor any intention of discharging the gun, the discharge being caused by the reckless manner in which the gun was handled, the slayer is guilty of involuntary manslaughter only, and the particular grade of that crime would be dependent upon whether at the time and place of the killing it was lawful for the slayer to be in possession of a deadly weapon.</p> <p>3. The charges complained of were not in accord with the rules above announced.</p>

<p>1. Where by special contract a chattel is pledged by one as security for his debt, the pledgee has a special property in the thing pledged; and when the pledgor takes the property from the pledgee’s control and possession with a fraudulent intent of depriving the pledgee of the security, he may be convicted of larceny under a charge of stealing property belonging to the pledgee.</p> <p>2. There was sufficient evidence in the present case to show such a delivery of the property as to constitute a valid pledge in law and to authorize a conviction of the accused for stealing the same.' '</p>

<p>Grimaces or facial expressions of contempt do not constitute “ opprobrious words or abusive language, ” within the meaning of the Penal Code, § 103, which declares that “ such words and language ” may or may not, as shall be determined by the jury, amount to a justification of an assault or an assault and battery.</p>

<p>Indictment for murder. Before Judge Candler. DeKalb superior court. Pebruary term, 1900.</p>

<p>Certiorari. Before Judge Littlejohn. Sumter superior court. March 10, 1900.</p>

<p>Exceptions to auditor’s report. Before Judge Janes. Paulding superior court. August term, 1899.</p>

<p>1. A tax fi. fa. transferred to a person other than the defendant loses its lien as to third persons, unless the transfer be recorded as prescribed by the law in force at the time.</p> <p>2. When such a fi. fa., issued and transferred prior to the adoption of the Code of 1895, was levied at the instance of the transferee, and a claim was filed by a third person, the levy should have been dismissed.</p> <p>3. In such case it was error to direct' a verdict for the claimant.</p>

<p>An indictment which, alleges that the accused wrongfully and fraudently took from the person of another, therein named, an article of designated value, privately, without his knowledge, and with intent to steal tike same, sufficiently charges the offense of larceny from the person as defined in the Penal Code, § 175, although there he no allegation that such article was the property of him' from whose possession it was so taken, or of some one else than the accused.</p>

<p>Though, the only purpose of a passenger upon a railroad-train in entering a car which had been set a part for passengers of another race may have been to pass through the same in order to reach a car to which he had been assigned and in which he had been previously riding, yet if upon being requested by the conductor to leave the car so entered he refused to do so, declared he would ride where he pleased, and that the conductor had no right to put him out, and was thereupon ejected from that car, such passenger was guilty of the forbidden act of “ remaining ” in a car other than that to which he had been assigned, and therefore liable to prosecution under section 528 of the Penal Code.</p>

<p>Certiorari. Before Judge Hart. Morgan superior court. March term, 1900.</p>

<p>Certiorari. Before Judge Henry. Floyd superior court. July term, 1899.</p>

<p>1. The building and keeping in repair by a railroad company of a bridge over or an approach to a private crossing is such, an invitation to the public to use the same as renders the company liable for injuries resulting from defects negligently permitted to exist or remain in the structure.</p> <p>2. The charges complained of were substantially in accord with the law above laid down. It was not erroneous to fail to charge on the subject of contributory negligence and apportionment of damages, there being no request to charge to this effect, and it affirmatively appearing that no such contention was made at the trial.</p> <p>3. The law of the case having been settled by a previous decision of this court, and the evidence, though conflicting, warranting the verdict, the writ of error is so palpably without merit as to lead to the conclusion that it was sued out for delay only; and damages are accordingly awarded.</p>

<p>Complaint. Before Judge Harris. City court of Floyd county. September term, 1899.</p>

<p>Equitable petition. Before Judge Henry. Eloyd superior court. October 27, 1899. *</p>

<p>1. Where a purchaser of fertilizers desires to have samples thereof taken and deposited with the ordinary under section 1571 of the Political Code, and the seller requests the purchaser to take the fertilizers home, promising shortly thereafter to visit him and take the samples, and within a few days he does go to the home of the purchaser and take the samples and, in company with the purchaser, deposits such samples with the ordinary, he is thereafter estopped to claim that the samples were not taken at the time of sale or delivery.</p> <p>2. When, in accordance with section 1571, the seller himself takes the samples, he is likewise estopped to claim that they were not properly taken.</p> <p>3. The notice required hy section 1574 is that the purchaser has reason to believe from the yields of the crop that the fertilizer was totally or partially worthless. At what time of the year or stage in the growth of the crop the purchaser can properly determine the effect of the fertilizer upon the crop so as to give notice of such dissatisfaction is a question for the jury.</p>

<p>Appeal. Before Judge Janes. Haralson superior court. July term, 1899.</p>

<p>1. A petition which alleges that a railway company, “ hy the use and running of their engines, locomotives, or other machinery, or otherwise, by the negligence of their agents, employees, or servants, set fire to and destroyed ” the plaintiff’s property, is amendable by the addition of a paragraph alleging that the fire in question was caused by the negligence of a section foreman in the employment of the company, and by setting forth the particulars as to the origin of the fire.</p> <p>2. Negligence causing the burning of a pasture fence does not entitle the owner to recover from the wrong-doer the value of the pasture for use and occupation for a longer period of time than would be reasonably necessary to replace the fence.</p> <p>3. An allegation in a petition for the recovery of damages alleged to have been caused by the negligent setting out of fire upon the plaintiff’s premises, that he was “ forced to call in his neighbors and friends to assist him in checking the fire so set out, in order to save his residence from total destruction, for which labor and service petitioner is entitled to ” a specified amount, is without merit.</p> <p>4. As the petition contained averments which should have been stricken on the special demurrers urged against the same, and as they were not so stricken, there should be another trial after the petition has been freed from the objectionable matter.</p>

<p>1. Where an act was entitled, an act to amend the charter of a named . city by incorporating as a part thereof certain described contiguous territory,- to define the duties and powers of the municipal authorities in the annexed territory, “ and for other purposes, ” any legislation could constitutionally be embodied in the act wbicb was germane to the general subject of amending tbe charter of the city.</p> <p>2. Equity will enjoin municipal authorities from holding an election to determine whether a given territory shall be annexed to the city, when the ordinance calling the election was plainly ultra vires and there was no warrant in law for holding the election.</p>

<p>A solicitor-general has no authority, after the expiration of twenty days from the date of the service upon him of the notice provided for by the act of December 6, 1897, relating to “ the confirming and validating of ” bonds, to file the petition by this act prescribed; and such a petition, if filed too late, can not be made the basis of any valid judicial action.</p>

<p>1. The Alabama statute, now embodied in section 2590 of the code of that State, rendering a master or employer liable to a servant for an injury “ caused by reason of any defect in the construction of the ways, works, machinery, or plant connected with or used in the business of the master or employer, ” does not prevent the defendant in an action brought under this statute from setting up as a defense that there was contributory negligence on the part of the plaintiff.</p> <p>2. The evidence in this case demanded a verdict for the defendant.</p>

<p>1. When a eross-hill of exceptions presents a question which is “ controlling upon the case as a whole, ” the Supreme Court will first consider and dispose of that question; and if the judgment of the trial court with respect thereto is reversed, the main bill of exceptions will he dismissed.</p> <p>2. Where the ordinary has duly complied with the statutory requirements as to issuing citation and publishing notice with regard to an application for a year’s support, it is too late, after the adjournment of the term of his court to which the citation is returnable, to file objections to the granting of such application. There was, in the present case, no consent to the filing of such objections after the expiration of the time allowed by law for so doing ; nor under the circumstances disclosed by the record was the applicant for the year’s support estopped from so asserting. •</p>

<p>Foreclosure of lien. Before Judge Janes. Polk superior court. August term, 1899.</p>

<p>1. Error in admitting secondary evidence of the contents of a lost writing the execution of which had not been proved is cured when, during the further progress of the trial, the execution of such writing is duly established.</p> <p>2. Though one may be a party defendant to and interested in the result of a case instituted by the personal representative of a deceased person, such defendant is not incompetent to testify to what was said in a conversation had in his presence between the plaintiff’s intestate and another, such conversation being neither a “ transaction ” nor a “ communication ” between the witness and the deceased.</p> <p>3. An objection made generally to the introduction of specified evidence as a whole is not well taken when some of it is admissible. The proper practice is to point out the inadmissible portion and object to it separately.</p> <p>4. Excluding immaterial evidence is not cause for a new trial.</p> <p>5. As a general rule, a party’s reasons for failing to subpoena a particular witness is not a proper subject-matter of investigation.</p>

<p>Complaint. Before Judge Janes. Douglas superior court. December 2, 1899.</p>

<p>Mandamus. Before Judge Janes. Polk superior court. March 30, 1900.</p>

<p>Equitable petition. Before Judge Henry. Floyd superior court. October 19, 1899.</p>

<p>Although., pending negotiations for the purchase of an article of personalty, the seller may knowingly have made false representations as to its character and qualities, yet where such negotiations finally resulted in the making of an express agreement whereby the purchaser undertook to buy the “ property entirely upon his own judgment, waiving all defects, either patent or latént, ” as well as “ the implied warranty upon the part of the seller, ” raised by law, “ that he knows of no latent defects undisclosed,” such purchaser can not he heard to set up in defense- to an action on the contract that, in point of fact, he did not purchase upon his own judgment, but upon the faith of the seller’s false and fraudulent representations made pending the negotiations which led up to the sale.</p>

<p>Petition. Before Judge Harris. Heard superior court. September term, 1899.</p>

<p>1. Before a defendant in a civil action arising ex contractu can demand the right to open and conclude, he must in his pleadings admit enough to make out a prima facie case for the plaintiff.</p> <p>2. Evidence as to what a deceased witness testified on a previous trial' is not admissible, when it appears that the issue therein involved was not substantially the same as that in controversy on the trial at which such evidence is tendered.</p> <p>3. Rejecting testimony offered for the purpose of proving! a-given'fact is not cause for a new trial, when the opposite party as a witness admits this fact and it is manifestly one as to which the parties are not at issue.</p> <p>4. When, in a trial by a jury in a magistrate’s court, no material error of law is committed by the presiding justice and the evidence demands the verdict rendered, the superior court ought not to sustain a certiorari sued out by the losing party.</p>

<p>Certiorari. Before Judge Harris.' Troup superior court. November 21, 1899.</p>

<p>Bail-trover. Before Judge Reagan. Monroe superior court. .August 12, 1899.</p>

<p>1. Where a petition for certiorari is properly headed with the name of the State and county, and addressed to the superior court, asking for a review of alleged errors committed on the trial of a case in a justice’s court of a named magistrate, and such petition has been duly answered by the magistrate, it is not error for the court to refuse to dismiss the same on the ground that the number of the militia district where the court was held is omitted from the petition.</p> <p>2. The petition in the present case distinctly specifies the errors complained of, and sufficiently sets forth the testimony on the trial below. The court, therefore, did not err in refusing to dismiss the same for want of sufficient specifications in these particulars.</p> <p>3. Where an execution issued on the foreclosure of a landlord’s lien, and a distress warrant in his favor, .are placed in the hands of a constable, the latter is entitled to retain from the proceeds of a sale of the property of defendant all costs legitimately accruing in executing both processes, although the prosecution of one was abandoned by the plaintiff.</p> <p>4. Under the record in this case there was ample evidence to authorize the judge to set aside the verdict of the jury in the justice’s court, and to direct a new trial in that court on the controlling issue of fact.</p>

<p>1. Delivery of a deed conveying real property is essential to its validity, and is only complete when the deed is accepted.</p> <p>2. A proper and legal registry of an instrument raises a presumption of delivery, sufficient to establish the fact, unless rebutted. An unauthorized registry raises no such presumption, and in that case the validity of the instrument is not established until delivery is affirmatively shown.</p>

<p>Indictment for larceny after trust. Before Judge Lumpkin. Eulton superior court. March 10, 1900.</p>

<p>Where the body of a penal statute is broader in its terms than the title warrants, it is unconstitutional at least in- so far as it contains matter not comprehended in the title.</p> <p>(a) Where the title of an act is “An act to prevent the baiting or killing of doves thus baited at said bait in this State, and to provide for the punishment thereof,” and the body 'of the act makes penal “ the baiting or killing of doves thus baited, any season of the year,” the act is unconstitutional at least in so far as it seeks to make penal the killing of doves at any place other than at the “ bait.”</p> <p>(b) An indictment, founded upon this statute, charging that the accused did “kill, by shooting with a gun, baited doves,” without alleging that the doves were killed at the place where baited, does not set forth any offense against the laws of this State.</p>

<p>Exceptions to auditor’s report. Before Judge Henry. Chattooga superior court. July term, 1899.</p>

<p>1. A petition wherein separate and distinct causes of action against different defendants are set forth is demurrable on the ground of multifariousness, and also on the ground of misjoinder of parties, when there are no allegations showing joint liability save loose and general charges of fraud and collusion which do not state the facts upon which such charges are based.</p> <p>2. The demurrers to the present petition sufficiently pointed out the objections thereto, which were of the nature above indicated, and the court did not err in holding that these demurrers were well taken or in dismissing the action.</p>

<p>1. An answer denying liability on a written contract upon which the action was brought, on the ground that the defendant, because of illiteracy and consequent inability to read, was induced to sign the instrument by the false and fraudulent representations of the plaintiff’s agent respecting its contents, of which he was ignorant, and to thus apparently make a contract entirely different from that into-which he believed he was entering, and with a person he did not intend to contract with at all, and setting up what the real contract. was, is not demurrable as seeking to add to or vary the terms of a valid written instrument.</p> <p>2. Damages in the .nature of expenses necessarily incurred because of the breach of a contract, and traceable solely to such breach, may be pleaded in defense to an action on the contract.</p> <p>3. So too may profits capable of exact computation, if the loss of the same is directly due to the breach of the contract, and if the damages resulting from such loss are such as must have been within the contemplation of the parties when entering into the contract.</p> <p>4. The court erred in striking certain portions of the defendant’s answer, as the same set up valid matters of defense.</p>

<p>Money rule. ■ Before Judge Littlejohn. Dooly superior court. September term, 1899.</p>

<p>1. That the attorney for the plaintiff in an action upon a promissory note brought in the county court agreed with the judge thereof, before the appearance term of the case, which was also the trial term, to continue the same until the next term, in order that the judge, whose term of office was about to expire, might represent the defendant, afforded no excuse to the latter for failing to file a plea of non est factum at the first term, it appearing tbat she had another competent attorney by whom the plea might have been filed. .</p> <p>2. When in such a case, no defense at all was made at the first term, there was no error, when it came on for trial on the appeal to the superior court, in striking, on the ground that it was filed too late, a plea of non est factum filed in the county court after the expiration of the appearance term.</p>

<p>Indictment for assault witb intent to murder. Before Judge Russell. Gwinnett superior court. March 12, 1900.</p>

<p>Indictment for vagrancy. Before Judge Hammond. City ■court of Griffin. March term, 1900.</p>

<p>The provisions of law relating to justifiable homicide where the parties had been engaged in mutual combat, contained in section 73 of the Penal Code, are not applicable to a case where there has been no mutual combat and where the defense relied upon is that contained in sections 70- and 71 of the Penal Code.</p>