Volume 111 — Georgia Reports

<p>1. The commissioners for the management of the dispensary established under the act of December 16, 1897, in the town of Blakely are “county authorities ” within the meaning of that portion of the general tax act of 1898 which imposes a tax on “dispensaries operated by county or municipal authorities.”</p> <p>2. The act last mentioned is, therefore, applicable to this dispensary, and, consequently, the commissioners can not lawfully operate the same without paying the taxes due the State. This is so without regard to the profits of the business.</p> <p>3. The property of the dispensary is subject to sale under execution for the State’s taxes.</p>

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

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

<p>1: The rule that where the question under examination is one of opinion a witness not an expert is incompetent to testify to his opinion without stating the facts on which it is based applies when an attempt is made to prove what distance a train running at a given rate of speed would . “knock” a man struck by it on the track.</p> <p>2. The Supreme Court can not undertake to determine whether or not permitting a witness to answer a particular question propounded to him was prejudicial to the party complaining thereof, when it is not informed what the answer was.</p> <p>3. An exemplification of a municipal ordinance is not admissible in evidence unless duly certified under the corporate seal.</p> <p>4. It is not competent for any purpose to show that a railroad employee who has violated a municipal ordinance was ignorant of its existence.</p> <p>5. When a widow is entitled to recover for the homicide of her husband, the measure of her damages is the full value of his life, although she and he were living in a state of separation at the time of his death.</p> <p>■6. A ground of a motion for a new trial alleging error in an instruction to the jury must set forth, either literally or in substance, the language complained of, or such ground can not be considered.</p> <p>7. The violation by a railroad company of a valid municipal ordinance is negligence per se, and the court may so inform the jurjr.</p> <p>S. A bare complaint that “the court erred ” in giving a particular instruction brings nothing into question except the soundness, in the abstract, of the proposition or propositions therein announced. If the instruction is abstractly correct, the question of its inapplicability to the case In hand must be distinctly made by clearly pointing out how or why it was inappropriate.</p> <p>9. Where, in its charge to the jury, the court omits to announce to them a rule of law having a direct bearing upon a contested issue in the case, thé refusal of a proper request so to do is^manifestly erroneous.</p>

<p>1. Under a provision in a city charter declaring that tax sales shall be ad. vertised for thirty days, one insertion of the advertisement of such a sale in each calendar week during the period of thirty days immediately preceding the day of sale will suffice, provided the first insertion appeared at-least thirty days before the sale.</p> <p>2. Where under a city charter it is the duty of the marshal to collect executions for taxes and conduct sales thereunder, the city clerk has no authority to postpone a tax sale or grant indulgence to the defendant in the tax execution.</p> <p>3. Whether a city has, under its charter, authority to issue an execution for unpaid street tax or not, if an execution embracing such a tax also included a tax on property, to which the property ievied on was subject, neither the execution nor a sale thereunder would be void merely because the street tax was included in the execution.</p> <p>4. Under the law allowing twelve months in which to redeem property sold under tax executions, one whose property has been sold can not redeem after the expiration of the twelve months. Our law does not recognize the existence of equitable grounds as a basis for extending the time within which redemption can be made.</p> <p>5. Upon the findings of the jury on the issues submitted to them and an agreed statement of facts, there was no error in adjudging that the sale was valid.</p>

<p>Complaint. Before Judge Littlejohn. Sumter superior court. November term, 1899.</p>

<p>1. Whether an affidavit of illegality should be accepted by a levying officer is to be determined by an inspection of the paper, and not by inquiring into the truth of its recitals.</p> <p>2. An execution is not legally issued when what purports to be the signature of the clerk thereto is not affixed by him or by his authority.</p> <p>3. The writ of mandamus lies to compel a levying officer to accept a good affidavit of illegality.</p>

<p>Certiorari. Before Judge Wooten. City court of Albany. August term, 1899.</p>

<p>1. A creditor who flies objections to the allowance of an exemption on the ground that specified articles of personalty were omitted from the schedule, should on the trial be confined to the articles mentioned in his objections, and should not be allowed to show by evidence that other articles of personalty were omitted from the schedule.</p> <p>2. An amendment to such objections, which merely in loose and general terms alleged that the head, of the family owned property not'scheduled, some of which consisted of debts owing to him by persons unknown to the objector, without further specifying or describingthe property charged to have been omitted, was properly disallowed for want of fullness and certainty in these respects.</p> <p>3. It is not incumbent on the applicant for a homestead to fix the valuation of the real estate sought to be set apart. This duty devolves upon the surveyor, his valuation being subject to review by appraisers.</p> <p>4. Though a gift of money or other property by an insolvent to his wife would be void as to creditors, it would be good as to the wife; and if she had actually disposed of such money or property before applying for an exemption out of the husband’s property, her failure to include what was given her in the schedule would not vitiate her application, when it did not appear that the gift was made in anticipation of the application and for the purpose of concealing the property.</p> <p>5. A failure to charge a proposition of law applicable to the case can not be taken advantage of by assigning error on a charge that is abstractly correct.</p> <p>6. Striking a ground of a motion for a new trial, which alleged an act or omission on the part of the judge, is the equivalent of refusing to certify to its correctness, and so doing is not reviewable here.</p> <p>7. While the judge should have instructed the jury to find first whether any of the property described in the objections should have been embraced in the schedule, and, if so, was the applicant guilty of a wilful fraud in concealing the same, a charge which restricted them to finding what was fraudulently omitted would not be cause fora new trial, when the evidence demanded a finding that none of the property embraced in the objections should have been included in the schedule.</p>

<p>A person, who having in charge as agent the goods of another makes with a. common carrier a contract to ship such goods, in which the agency is not disclosed, may maintain an action in his own name for a breach of such contract.</p>

<p>Complaint. Before Judge Hart. Jasper superior court. September term, 1899.</p>

<p>1. Ii in rendering its judgment upon a demurrer to a petition the court does not decide upon the merits of the case, a judgment sustaining the demurrer and .dismissing the action is not a bar to another proceeding for the same cause.</p> <p>2. A petition for certiorari in which there is no attempt to assign error upon ■ the judgment sought to be reviewed, except to allege that the “petitioners objected to the judgment of said court, still object, and say the same was error and as such assign it,” does not comply with the statute prescribing that a plaintiff in certiorari “ shall plainly and distinctly set forth the errors complained of.”</p> <p>3. There was in the present case no error in refusing to sanction the petition for certiorari.</p>

<p>1. A court of equity will not decree the cancellation of a paper when so doing is in no way essential to the protection of the party seeking such relief.</p> <p>2. Even if a prayer for “general relief” can, under any circumstances, be treated as a prayer for an injunction, a petition which has no standing in court as one for injunction otherwise than by virtue of the general prayer, and which is in other respects without equity, will not be retained when it is apparent from the petition itself that the plaintiff is not seeking an interlocutory injunction, by which alone he could be afforded adequate relief, and that a permanent injunction after a final hearing would be unavailing.</p>

<p>Action for breach of warranty. Before Judge Smith. Tel-fair superior court. October term, 1899.</p>

<p>1. An instrument in the form o£ a deed purported to convey to named gran.tees, their heirs and assigns, at a specified price per acre, “all the pine timber suitable for sawmill purposes” on described lots of land. It acknowledged receipt of a specified sum, and recited that the grantor agreed “that the amounts left unpaid this day shall be paid as follows : when each lot is entered to cut said timber, the balance due on each lot is one hundred dollars, which will be due as above stated.” The instrument also purported to- convey to the grantees, their heirs and assigns, “ the full right of way for railroads, tramroads, and wagon-roads in and through the said lands for the purposes above stated, said right of way to continue as long as said mill operations may require.” Held:</p> <p>(а) That the true intent and meaning of this instrument was to convey to the grantees, their heirs and assigns, all the timber suitable at the date of the instrument for the purposes indicated ; but that it was incumbent on the grantees, or their successors in title, to cut and remove such timber from the lots within a reasonable time from the date of the conveyance, and that on failure so to do their interest in the timber ceased and determined.</p> <p>(б) That what would be a reasonable time for so doing was a question of fact to be passed upon and decided in the light of all the facts and circumstances surrounding the transaction.</p> <p>(c) That inasmuch as the instrument in question conveyed an interest in realtjr, though the estate was determinable, it was entitled to be recorded; and, if duly recorded, it was admissible in evidence without proof of execution. .</p> <p>(d) That under such an instrument, payment of the balance of the purchase-money due on each lot was not a condition precedent to the right to enter and cut the timber.</p> <p>2. Where a grant was made to a partnership composed of two persons, even if a conveyance by them of the property therein described was not properly executed if only signed by the partnership, yet where such conveyance purported to be to another partnership composed of these two persons and another, if the latter partnership conveyed the property by a deed executed by each of the three partners, and also signed in the firm name, the title to the property passed to the grantee named in that conveyance.</p> <p>3. As the trial judge did not properly construe the instrument referred to in the first of the above notes, and as the case was tried under a misapprehension of its true intent and meaning, the judgment directing a verdict for the plaintiffs was erroneous, and there should be another hearing in the light of what is here laid down.</p>

<p>Action for malicious prosecution. Before Judge Smith. Dodge superior court. November term, 1899.</p>

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

<p>1. It is the duty of the clerk of a court the decisions of which are re viewable by writ of error to this court to transmit to the clerk of this court, at , the same time, both the original bill of exceptions and the transcript of the specified portions of the record, within ten days from the date of the ' ‘filing of the bill of exceptions, when the case is one that can be brought to this court on the ordinary writ of error, and within fifteen days from the date of service of the bill of exceptions when the case is one which is required to be brought here by a fast writ of error.</p> <p>2. If such clerk delays the transmission of either the original bill of exceptions or the transcript beyond the time above mentioned, it is his duty to certify on the transcript the true cause of the delay.</p> <p>.3. The transcript or the record must be legibly written or printed on white paper, and if written with pen or typewriter, the same must be done on only one side of each sheet.</p> <p>4. The various parts of the transcript must be arranged in order of time, that is, the first document filed shall be foremost in the transcript, and so on to the last order or document filed immediately preceding the transmission of the transcript and bill of exceptions.</p> <p>5. As against a clerk, an illegible or confused transcript of the record will be treated as 'no transcript.</p> <p>6. It is the duty of the clerk to transmit the transcript notwithstanding the plaintiff in error has neither filed a pauper affidavit nor paid the costs due the clerk for making out the transcript.</p> <p>■ 7. The rules against the clerks in the present proceeding are discharged, for the sole reason that it appears from the answer of each that they were under a misapprehension of their duty in regard to certifying the true . cause of the delay in transmitting records, and it is manifest from each answer that there was no intention on the part of any of them to wilfully disregard the rule of court in reference to this matter, or the law in reference to the time of transmission.</p>

<p>1. Any plea or suit for the recovery back of usury voluntarily paid by a debtor to his creditor must be brought within a period of one year after such payment is made. Hence, in a contest between two creditors over the assets of their insolvent debtor, one creditor can not make the other account for usury voluntarily paid him by the debtor before insolvency, without instituting proceedings for this purpose within twelve months from the time of sdch payment.</p> <p>2. The instructions requested, so far as legal and pertinent, were sufficiently covered by the general charge given to the jury, and the failure to charge in the precise language requested is not cause for a new trial.</p> <p>3. While the evidence upon the sole issue submitted to and passed upon by the jury was decidedly conflicting, that introduced for the defendant in error was sufficient to support the verdict, and it does not appear that the same was contrary to the charge of the court.</p>

<p>1. A sale of goods by sample carries an implied warranty that the bulk of the goods purchased will correspond with the sample; but in order to constitute such a sale, something more must appear than that at the time of the sale a sample was exhibited, viz., that -when the exhibition was made it was mutually understood and intended that the sample was a reliable representative of the bulk of the goods purchased.</p> <p>2. When in such a case the contract is expressed in a writing embracing the entire agreement, and the same contains no reference to a sample, “it is clear that conformity of the bulk to the sample is notan agreed term.”</p> <p>3. The evidence in this case failed to show a sale by sample.</p>

<p>1. Where one delivers to another a certain amount of money with which, as his agent, to purchase live stock, and the purchase is accordingly made, the title to the Stock vests in the principal, and if he agrees that the agent shall use the stock for a certain rental, and further agrees that the agent may, whenever he desires todo so, purchase the stock from the principal for the cost with interest, this latter agreement is not a sale with reservation of title, and need not be recorded under the Civil Code, #2776.</p> <p>2. The fact that the agent made and delivered to the principal a bill of sale of the stock does not estop the principal to set up the above-stated facts. The intention o£ the parties and the bona fides of the transaction is a ques* tion for the determination of the jury.</p> <p>3. It was therefore error, in a claim case, to refuse an amendment offered by the claimant and averring the above-stated facts.</p>

<p>1. The act of December 7, 1897 (Acts 1897, p. 68), confers the power to condemn the property of others upon such corporations or individuals only as own or control any water-power in this State, or location for steam plant. It confers no power to condemn a water-power but only to condemn rights of way or other easements upon the lands of others in order to run lines of wire, maintain dams, etc., or for other uses necessary to transmit electricity for the purpose of lighting towns or cities, or supplying motive power to railroads or street-car lines or heat or power to the public. It confers no power to condemn an undivided interest or easement in a water-power the remainder of which is owned by the electric-light corporation w;hich is seeking to condemn.</p> <p>2. There is no general law'giving electric-light companies power to condemn, the private property of others.</p>

<p>1. When the defendant in an action upon a promissory note admits enough to make out a prima facie case for the plaintiffs, and sets up the defense of usury, it is incumbent upon him to establish the same by evidence, and if he fails to do so the court may direct a verdict for the plaintiff.</p> <p>2. Where in such a case it affirmatively appeared that the plaintiff, to whom the defendant had applied for a loan of the money for which the note in suit was given, remitted to a named person a check for the full amount of the note, less a sum which the defendant had agreed to pay to a corporation for negotiating the loan, the check being payable to the order of the person named therein as agent of the defendant, evidence which showed merely that this person was not the defendant’s agent to borrow the money, and that he paid over to the defendant a sum less than that named in the check, was not sufficient to show that the transaction was usurious. It was incumbent upon the defendant to show further that the payee of the check was in fact the plaintiff’s agent, and that as such he kept a portion of the money with a view to exacting usury on the loan.</p>

<p>A petition for the recovery of commissions, which alleges that the plaintiff is entitled to a specified per cent, on a named sum “for receiving the same ” and to a like per cent. “ for paying the same over,” but which does not unequivocally aver that the plaintiff actually received and disbursed the fund referred to, is demurrable for evasiveness and uncertainty.</p>

<p>1. Agency to sell does not necessarily carry with it authority to collect.</p> <p>2. If the debtor by promissory note makes a payment thereon to one claiming to be an agent for collection, it is incumbent on the former to see that the latter is in possession of the security; for, if he is not, the debtor will be liable to pay again, unless the person making the collection had authority to collect the sums due his principal, or the money actually reached the owner.</p> <p>3. Such authority is not shown by proving occasional instances of receiving partial payments upon a promissory note, in each of which the person so doing produced the paper and entered the credit.</p> <p>4. The defense of payment set up in the present case was not sustained by evidence, and consequently the court erred in not setting aside the verdict returned in favor of the defendant.</p>

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

<p>Complaint for land. Before Judge Spence. Worth superior court. October term, 1899.</p>

<p>1. Aplaintiff may dismiss his suit which is pending in any court of this State, either in term time or vacation, where some right of the defendant is not prejudiced thereby; but the dismissal by the plaintiff of an equitable proceeding in which a receiver to take charge of the assets of the defendant has been appointed, does not necessarily operate to discharge the receiver. He is an officer of the court; his possession of the assets of the defendant is possession by the court, and while in such a case the functions of the receiver, as between the parties, are ended, his custody of the assets in his hands continues subject to the order of the court.</p> <p>2. AVhere in such case the holder of a lien, or other creditor of the defendant, before the receiver has been ordered to surrender the assets in his hands, makes a claim thereto, the judge may, notwithstanding the dismissal of the original suit, retain jurisdiction over the fund, under a proper petition of the creditor for such distribution as may be legal and equitable ; but it is not good practice to order a reinstatement of the original case.</p>

<p>Admissions made by an administrator after his appointment are admissible against the estate of his intestate.</p> <p>2. The amount of damages or of mesne profits to be recovered is a question for the jury, and not for the court. It was, therefore, error to direct the jury to find a specified sum as mesne profits.</p>

<p>Certiorari. Before Judge Candler. Lowndes superior court. November term, 1899.</p>

<p>Where a landowner leased to another the timber on three named lots of land “for turpentine purposes,” for three years from the time boxing began, and the lease expressly stipulated that the money should be paid before boxing began, the payment of the amount due for all of the lots was a condition precedent to the lease becoming operative. Where, in such case, the landowner claimed that the money for but two of the lots was tendered him, and he thereupon leased the lots to a third party, and the first lessee filed an equitable petition for injunction against the second lessee and claimed therein title to the timber, and on the hearing before the judge the evidence was conflicting as to whether the petitioner had tendered the money for all three lots or for only two, the judge, having found in favor of the latter contention, did not abuse his discretion in refusing the injunction. Not having complied with the condition precedent by tendering the whole amount due, the petitioner had no such “ perfect title ” as would authorize an injunction in his favor under the Civil Code, 14927, as amended by the act of 1899, without.proof of irreparable damage or of the insolvency of those whom he sought to enjoin.</p>

<p>Confirmation of sale. Before Judge Seabrook. Glynn superipr court. August 22, 1899.</p>

<p>The evidence in this case being entirely circumstantial and being insufficient to connect the accused in any way with the crime, the verdict of guilty was contrary to law, and the court erred in refusing to grant a new trial.</p>

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

<p>The payee of a promissory note, in possession of the same, is presumed to own it, although his indorsement thereon, in full or in blank, may stand uncanceled. He may sue upon such note, and his title to the same can not be inquired into, unless it be necessary for the protection of the defendant or to let in the defense which he seeks to make.</p>

<p>A breach of an executory contract for the purchase of goods will not support an action upon an open account for the price thereof. Thus, where a mercantile partnership in one city gave to an importer in another an order to “import and ship” to the firm certain goods at stated prices, the order specifying that “import orders are not subject to cancellation,” and containing a stipulation, “ This order not to be shipped until notified by the buyer,” the partnership was bound, within a reasonable time after the importation of the goods, to direct that they be shipped to it; and, failing to do so, was guilty of a breach of contract for which it was liable in damages to the other party. But he was not, after the arrival of the goods from abroad, authorized to ship them to the firm except by its express direction, and could not, if he shipped without such direction and ' it declined to accept the shipment, maintain against the firm an action upon account as for goods sold and delivered.</p>

<p>Though a landlord will not be liable in damages for injuries to a tenant re-suiting from the defective condition of a plank in the floor of the rented building, of which the landlord had no notice, a petition which alleges that the plaintiff, a tenant, was injured by reason of such a defect, and that the landlord, the defendant, had notice of the “defective condition of the floor,” sufficiently alleges, as against a general demurrer, -that the defendant had notice of the defective condition of the plank.</p>

<p>1. A petition which in substance alleges that the defendant by “ warranty title deed” conveyed to the plaintiff a described city lot, that ten feet of the lot thus described never in fact belonged to defendant, and is in possession of another who is the owner thereof, that a specified sum was the “purchase-money” of this strip of land, and praying for a recovery of this sum, though loosely drawn, is in fact an action for a breach of warranty of title to land.</p> <p>(a) When, as originally drafted, such a petition claimed as the measure of plaintiff’s damages the value of the property to which title failed, it was amendable so as to make the sum claimed as such damages the purchase-price of the property.</p> <p>(b) The petition in the present case as amended was of the character above indicated, and though there was a general demurrer to the same, yet as it does not appear that the demurrer was sustained, but the case went to trial on the merits, the petition is sufficient to sustain the verdict in plaintiff’s-favor.</p> <p>2. That the court in the trial of a case treated as ambiguous, in the matter ' of description, a deed which was not so, affords no cause of complaint to a party whose contention as to its real meaning was, under a proper construction of the deed, not well founded;</p> <p>3. In view of the evidence introduced in the present case, the jury were warranted in finding that the deed from the defendant to the plaintiff covered the land for which she contended, and that as to a portion of it the title failed.</p> <p>4. A ground of a motion for a new trial alleging in general terms that the entire charge of the court is erroneous “in giving to plaintiff’s suit two distinct grounds of recovery,” specifying them, does not plainly and distinctly point out any error, unless it sets forth, either literally or in substance, the language used by the judge in thus allowing two grounds of recovery.</p> <p>5. Treating the action as one for a breach of warranty of title to land, it is immaterial whether the court did or did not err in several of the rulings and charges complained of in the motion for a new trial.</p> <p>6. There was sufficient evidence to warrant the verdict as amended by the order of the judge requiring one item thereof to be written off, and it does not appear that the court erred in denying the motion for a new trial.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. February 9, 1900.</p>

<p>1. The power to punish contempts is inherent in every court of record. If the court is created by the constitution, the legislature can not, without express constitutional authority, define what are contempts and declare that the court shall have jurisdiction over no acts except those specified.</p> <p>2. The provision of the constitution which declares that “The power of the courts to punish for contempts shall be limited by legislative acts” does not confer such authority, but only the power to prescribe the punishment, after conviction. Consequently section 4046 of the Civil Code, in so far as it seeks to limit the jurisdiction of a constitutional court to punish con-tempts to certain specified acts, is not binding upon such courts. They may go beyond the provisions of the statute, in order to preserve and enforce their constitutional powers by treating as contempts acts which clearly invade them.</p> <p>3. That a given act may be indictable does not deprive a court of the power of dealing with it as a contempt of court.</p>

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

<p>1. It is discretionary with the court to suspend the trial of a criminal case to allow an expert witness, introduced by the accused and then on the stand, to examine an indentation in the skull of the accused, in order to enable him to testify as to its effect upon the accused as to sanity or insanity.</p> <p>2. It is not error to allow non-expert witnesses on the subject of the sanity of the accused to testify that they know the accused and have seen nothing in his appearance or conduct to indicate insanity.</p> <p>3. Improper remarks by the solicitor-general, unrebuked by the judge, will not work a reversal of the judgment in this case, as no objection was made and no ruling of the court invoked.</p> <p>4. The evidence amply supported the verdict.</p>

<p>Action for malicious prosecution. Before Judge Janes. Haralson superior court. July term, 1899.</p>

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

<p>Appeal. Before Judge Lumpkin. Fulton superior eourtDecember 4, 1899.</p>

<p>1. When the payee of a negotiable promissory note sold it outright to another, the mere fact that the .seller indorsed the paper did not place him in the attitude of a borrower of money from the purchaser; nor, as between the latter and the maker of the note, was the transaction usurious because the discount amounted to more than the maximum lawful rate of interest.</p> <p>2. Even if a promissory note was usurious, yet if this fact did not appear on its face, the maker, who induced another to sign the note as surety in ignorance of the usury and in good faith believing that the paymentof the note was secured by a bill of sale to personalty which the maker had executed, was estopped from setting up the usury in defense to an action of trover brought by the surety for the personalty after he had paid off the note and taken an assignment of the same and of the bill of sale.</p> <p>3. Nor could the defendant in such a case, for the purpose of defeating the plaintiff’s action, set up as outstanding title a duly recorded bill of sale which the defendant had executed to a third person after making the bill of sale relied on by the plaintiff, which was not so recorded.</p>

<p>Under the allegations of the petition and the testimony in the present case, the trial judge was not authorized to conclude that the plaintiff’s entire case was placed throughout on the amputation of his limb caused by the alleged negligent and unskilful treatment by the defendant as plaintiff’s physician. As elements of damages claimed by the plaintiff, pain and suffering are sufficiently set forth in the declaration; and there was sufficient evidence to submit to the jury the issue as to whether, by the unskilful treatment of the defendant, the plaintiff sustained damages in consequence of such pain and.suffering, notwithstanding such treatment may not have led to the loss of his limb. The court, therefore, erred in . _ instructing the jury, in effect, that damages could not be recovered for pain and suffering resulting from unskilful treatment by the physician unless such ti’eatment was the cause of the loss of plaintiff’s limb.</p>

<p>Indictment for murder. Before Judge Candler. Clayton" superior court. March term, 1900.</p>

<p>' Indictment for larceny. Before Judge Bennet. Glynn superior court. December term, 1899.</p>

Complaint. Before Judge Harris. City court of Floyd' county. August 29, 1899. C. D. Wood sued S. W. Smith upon a promissory note, a copy of which, so far as material to the questions to be considered,, was as follows: . “ State of Georgia, Floyd County.

<p>If a debtor apply to his creditor for further credit for goods to be used in connection with bis business, which the creditor refuses, and a third person, pecuniarily interested in the success of the debtor’s business, agree to assume the debt if the creditor will extend further credit; and the creditor discharge the debtor from the debt, look to the third person for payment thereof, and extend to the original debtor further credit, the promise by the third person to pay the original debt is not collateral, but an original undertaking, and need not be in writing.</p>

<p>Injunction. Before Judge Bennet. Coffee county. April 11,1900.</p>

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

Complaint. Before Judge Reid. City court of Atlanta. October 4, 1899. The following statement of the evidence in this case, taken from the bill of exceptions, is all that need be added to the facts reported in the opinion. The plaintiff introduced the note sued on. T. A. Clarke, sworn for the defendant, testified as follows: I am the husband of the defendant, and represented her in getting the money on the note sued on; went to Mr. Barnett and asked for the money.

<p>1. Grounds of a motion for a new trial which are not verified can not be considered by this court. A ground of such a motion will be held not to be verified (a) when the record is silent on the subject, (t>) when the record discloses an affirmative refusal to verify, (c) and when the judge appends to the motion a note which states facts in conflict with any statement in the ground which would be material in the' consideration of the errors complained of.</p> <p>2. Assignments of error complaining of the admission or rejection of evidence, either oral or documentary, can not be considered when the evidence admitted or rejected is not embodied in the motion or attached thereto as an exhibit.</p> <p>S. There is no law in this State authorizing the chief executive officer of a municipal corporation to grant an exclusive right to sell liquor within the limits of such corporation.</p> <p>4. “ That two bailiffs were regularly elected in” agiven militia district can not be proved by the parol evidence of the justice of the peace in that district.</p> <p>5. The election of an officer can not be proved by parol, nor by the production of the “precinct returns of election ” made by the managers.</p> <p>6. The affidavit required by section 4813 of the Civil Code may be administered by any justice of the peace, and it is not essential to the validity of the warrant issued thereon that the affidavit should be made before the justice of the peace of the district where the land lies.</p> <p>7. The discretion of a trial judge in refusing to continue a case on the ground of the sickness of a party will not be controlled, when the record discloses that “there was much evidence pro and con as to whether” the absent party “ was able to attend court and what was his condition.” The fact that on the hearing of a motion for a new trial in the case affidavits were read tending to show that the absent party was in fact sick at the date of the trial will not have the effect of varying the rule just stated.</p> <p>8. Affidavits read at the hearing of a motion for a new trial, setting forth what purports to be newly discovered evidence, will not be considered by this court, when there is no ground in the motion asking for a new trial on account of newly discovered evidence.</p> <p>9. The alleged newly discovered evidence in the present case was, in part, clearly inadmissible, and, to say the most of the other portion, it was of doubtful admissibility.</p> <p>10. There was no error in any of the rulings of the judge upon which proper assignments of error were made. The evidence demanded the verdict rendered, and the court did not err in refusing to grant a new trial.</p>

<p>Affidavit of illegality. Before John C. Reed, judge pro hac vice. Fulton superior court. September term, 1898.</p>

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

<p>1. A business corporation may make amendments to its by-laws which are . not inconsistent with its charier or constitution. Consequently, an allegation in a petition that the defendant, a corporation, made specified amendments to its by-laws does not negative its authority so to do, when there is no allegation that these amendments were contrary to the dei fendant’s charter or constitution.</p> <p>: 2. Where given amendments to the by-laws of such a corporation were, under its charter and constitution, allowable, they were not as to a particular stockholder fraudulent or void merely because made without his knowdedge, or because he “has never ratified, acquiesced in, or consented to the same.”</p> <p>3. A stockholder who brings ah action against a corporation, and in his petition alleges that certain amendments to its by-laws were in violation of ' -his contract with the defendant, must set out the contract with sufficient . . fullness to enable the court to determine whether or not his allegation is well founded.</p> <p>4. W lien the petition in such a case alleges that the plaintiff is entitled under -'the by-laws to-recover a designated amount, as the withdrawal value of his stock, it is incumbent upon him to show, by the terms of -his contract, -. i that his right to recover such withdrawal value accrued under the contract in connection with the by-laws, and, to do this, it is essential that the térms of the ’contract-be set forth.</p> <p>15. When a demurrer to a petition is based on several grounds, and the court ..in terms sustains some of them, and thereupon dismisses the petition, the judgment will be affirmed -whether these grounds were well taken or not, if the other grounds of the demurrer were good.</p>

<p>An entry by a constable upon a fi. fa. issued from a justice’s court in the following language: “ I know of no personal property in the possession of the defendant on which to levy this fi. fa.,” is not such a compliance with section 4167 of the Oivil Code as will authorize a constable to levy the execution upon land.</p>

<p>Where upon a motion for a continuance made in behalf of a claimant, it appeared that the claimant was providentially prevented from attending the trial, and the claimant’s counsel stated, in his place, that he could not go safely to trial without the presence of his client, and no counter-showing was made, it was erroneous to overrule the motion, although the entry, “Continued for sickness of claimant’s family,” had been made upon the docket at a previous term.</p>

<p>1. Under the act of December 21, 1897 (Acts of 1897, pp. 79-81), in a suit to recover land the defendant who has bona fide possession of such land under adverse claim of title may plead as a set-off the value of all permanent improvements bona fide placed thereon by himself, or other bona fide claimants under whom he asserts title, notwithstanding such improvements may have been made before the passage of the act. In case the legal title is found to be in the plaintiff, and it should further be found that the value of such improvements at the time of the trial exceeds the mesne profits, while plaintiff is entitled to a verdict in his favor for the land, the defendant is also entitled to a recovery for the amount of excess of the value of such improvements over the mesne profits. The act thus applied is not unconstitutional on account of being retroactive or ex post facto, or on account of its interfering with any vested right of the owner of the land. Lumpicin, P. J., dissenting.</p> <p>2. Where the plaintiffs in such an action have been in possession of, or enjoyed the rents, issues, and profits from lands of the defendant which they had received in lieu of the lands involved in the suit, the latter lias, a right to plead such benefits derived by plaintiffs as a set-off to their claim for mesne profits against him.</p> <p>3. Prior to the act of 1889, embodied in Oivil Code, §2545, a judge of the superior court had no authority to pass an order in vacation authorizing a guardian to sell or exchange the lands of his ward for reinvestment, and a deed made by the guardian in pursuance of such an order to a purchaser was void.</p> <p>4. A defendant, in an action for the recovery of land, who claims credit for improvements made by his predecessor, is likewise liable for all mesne profits chargeable to such predecessor; otherwise, if the defendant claims' credit only for such improvements as he himself placed upon the land since his possession.</p>

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

<p>1. "Under a will giving the executor power, should it be necessary, to raise in such way as seems best to him a sufficient amount of money to pay the debts of the testator, the executor is authorized to borrow money for the purpose of paying such debts, and to secure the loan by mortgage or, security deed.</p> <p>2. Where money is borrowed under such power, it is not incumbent, on the lender to ascertain whether there are debts of the testator or not, the loan being made within a reasonable time after the death of the testator and the probate of the will.</p> <p>3. If under such power the executor borrows more money than is necessary to pay the debts, the estate is liable to the lender for the full amount, where there is no fraud or collusion between the executor and the lender, and where the latter has no notice of the amount of the debts. The legatees must look for reimbursement to the executor individually.</p> <p>4. Under the will and the commercial practice in this State, the authority to raise money as above indicated necessarily implies the power, in borrowing money, to contract to pay attorney’s fees in the event it should be necessary to collect the debt by suit, such contract being, however, enforceable only when the person making the same files a plea and fails to sustain it.</p>

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

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

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

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. January term, 1900.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. January term, 1900.</p>

<p>Probate of will — appeal. Before Judge Lumpkin. Fulton superior court. August 9, 1899.</p>

<p>Injunction. BeforQ Judge Lumpkin. Fulton county. April 24, 1900.</p>

Petition for direction. Before Judge Brinson. Richmond superior court. ' October term, 1899.

<p>1. Where a binding contract for the sale of improved realty has been made, and the improvements are destroyed by fire before the vendor is in a position to convey the legal title and before the vendee obtains possession, the loss is that of the vendor.</p> <p>2. If in such a case the property was insured, the vendor is entitled to col- . lect the insurance money in his own right and does not hold the same in trust for the vendee.</p> <p>3. Though under section 4041 of the Civil Code it might not in such a case • be the right of the vendor to compel a specific performance by the vendee . of the original contract, yet, under the provisions of that section, the vendee may compel specific performance, and to this end a court of equity willallow him such an abatement of the contract price as is just and rea- " sonable in view of the changed condition of the property.</p> <p>4. The rule for determining the amount of such abatement would be to ascertain if there was any difference on the day the contract became binding between the market value of the entire property and the contract price. In case there was no difference, then the purchaser would be entitled to a decree requiring the seller to convey him the property upon payment of a sum equal to the market value of the lot without the building on the day the contract was made. If at the date the contract became effectual the market value of the property was greater than the con- ' tract price, a sum representing this difference should be deducted from the market value of the lot without the building, and the balance remaining would be the amount which the plaintiff should be required to pay for a conveyance of the land. In this way the purchaser would obtain the benefit of his bargain. If the contract price exceeded the market value, the purchaser should-pay, in addition to the market value of the lot without the building, the difference between the market value of the property at the date of the contract and the contract price. In this way the vendor would be given the benefit of his bargain.</p>

<p>Action on insurance policy. Before Judge Hammond, City court of Griffin. December term, 1899.</p>

Action for damages. Before Judge Reagan. Spalding superior court. January term, 1900. Gray sued the Mayor and Council of the City of Griffin, on account of an illegal arrest and imprisonment, and of physical injury and mental suffering caused by the condition in which the prison was kept.

<p>1. Where a judgment de bonis testatoris is obtained against an executor, execution issued thereon, a return of nulla bona made by the sheriff, and a suit brought on the judgment against the executor personally, suggesting a devastavit, the executor can not, in his defense to the suit, make a collateral attack upon the judgment by showing fraud or mistake in its rendition ; and this is true although the judgment was rendered by the same court in which the suit thereon is pending.</p> <p>2. The modification of such judgment de bonis testatoris by the statement that it “is not to be a personal judgment against” the executor does not preclude the plaintiff from bringing suit upon it against the executor personally, suggesting a devastavit.</p>

<p>1. A declaration alleging that the plaintiff and defendant had, after certain correspondence, entered into a contract of employment under which the plaintiff was employed by the defendant for one year at a specified salary,’ which was payable monthly ; that, after he liad performed his services for several months, he was wrongfully discharged by his employer; that he was ready and willing to perform the services, but the employer re-r fused to accept them; that he had recovered a judgment for a part of his salary, and that this action was for the recovery of the balance, sets forth a cause of action.</p> <p>2. The recital in the declaration of the correspondence which led up to the contract finally made was mere surplusage, and need not have been set out in full in response to a special demurrer based on the ground that it was not so set forth. So likewise with the recital of the judgment for a ■ part of the plaintiff’s salary.</p>

<p>Action on bond. Before Judge Lumpkin. Fulton superior court. September term, 1899.</p>

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

<p>1. Grounds of a motion for a new trial alleging error in admitting or in rejecting evidence can not be considered when they fail to distinctly inform the court what was the evidence to which they, respectively, relate.</p> <p>2. When, in defense to an action of bail-trover for the recovery of personalty which the plaintifE had sold to the defendant under a contract reserving title till the purchase-money should be paid, the latter set up that, the former had received a part of the price, and was not, without returning the same, entitled to a verdict for the property itself, it was not, though no claim for hire was made in the petition, erroneous to admitin behalf of the plaintiff evidence showing the value of the property for hire-while in the defendant’s possession, or to charge the jury that if such value was equal to or exceeded the amount of the payments upon the purchase-price, the plaintiff was not bound to return the money which the-defendant had paid upon the purchase.</p> <p>3. The evidence warranted the verdict.</p>

<p>1. A contract made by a parent with her daughter and the latter’s intended husband, to the effect that if the contemplated marriage is solemnized, and the husband will expend the necessary amount of money in building a dwelling-house upon a vacant lot belonging to the mo.ther, she will convey the lot to the daughter, is supported by a sufficient consideration.</p> <p>2. When such a contract, though resting entirely in parol, has been performed by the solemnization of the marriage and the improving of the lot at the son-in-law’s expense as agreed, it is taken out of the operation of the statute of .frauds.</p>

<p>Complaint for land. Before Judge Candler. Campbell superior court. August term, 1899.</p>

<p>Equitable petition. Before Judge Evans. Emanuel superior court. October term, 1899.</p>

<p>Appeal. Before Judge Hart. Washington superior court.. September term, 1899.</p>

<p>Action of libel. Before Judge Brinson. Richmond superior court. September 80, 1899.</p>

<p>Equitable petition. Before Judge Brinson. Richmond superior court. October term, 1899.</p>

<p>1. One who is engaged with others in raising, by means of a derrick, timbers which are being used in the construction of a house, and whose particular duties are to stand on a scaffold and receive and detach such timbers from the derrick when they are sufficiently elevated for the use intended, is a fellow-servant of one who stands on the ground and operates the machinery which elevates such timbers, when the persons so engaged are under one common employment, receiving orders from another as superintendent of the entire construction; and this is so even if the person operating the derrick is invested with authority to direct how and when the elevation of timbers shall be made.</p> <p>2. Even if in a given case it be shown that the machinery and appliances furnished by the master for the prosecution of the work in hand were defective, he is not liable to a servant for an injury occasioned by defects of which the latter had knowledge before he was injured, if with such knowledge, and without calling attention to the defects, he continued in the work carried on by the use of such machinery. Nor is he entitled to recover on the ground that the master negligently employed an incompetent fellow-servant, unless it be made to appear not only that such fellow-servant was in fact incompetent, but that this was known or ought, in the exercise of due diligence, to have been known to the master at the time of the employment; orelse that the master negligently retained such fellow-servant in his service under circumstances warranting a finding that he knew or was fairly chargeable with knowledge of such incompetency.</p>

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

<p>1. There was no error in ruling that a denial of the truth of the ground of the attachment, made in a petition to remove the attachment, was a traverse of such ground in contemplation of law.</p> <p>2. A conveyance of property by an insolvent mother to her daughter and the husband of the latter is not necessarily 'fraudulent, and when the jury was authorized under the evidence to find that the conveyance was made in good faith and for a proper and legal consideration, the verdict, in the absence of any error of law on the part of the judge, ought not to be set aside.</p> <p>3. There was no error in the charge.</p> <p>4. The evidence sought to be introduced was not material in this case, and there Was no error in excluding it.</p>

<p>Foreclosure of lien. Before Judge Reid. City court of Atlanta. November term, 1899.</p>

<p>Action on insurance policy. Before Judge Candler. Clay ton superior court. September term, 1899.</p>

<p>Garnishment. Before Judge Evans. Tattnall superior court. October term, 1899.</p>

<p>A city is not liable for injuries resulting from the defective condition of a bridge over a road on private property, approached by a gate and in no way controlled by the city ór open to the public. This is true although the bridge is within the corporate limits of the city.</p>

<p>Where a landlord sues out a warrant to eject a tenant on the ground that he is holding over and beyond his term, and the tenant, in his counter-affidavit, denies these al legations and alleges that he had made a contract with the plaintiff, whereby he rented the premises for the term of two years at a specified monthly rental, purchased a stock of goods from the plaintiff (the goods being in one of the houses on the premises), and, in the same contract, the plaintiff agreed and stipulated that the defendant might, at any time within two years from the_date of the contract, purchase the premises with a specified number of acres of land at a specified price per acre for the land and the cost of the material of which the houses were built: Held, that the defense was not demurrable on the ground that it did not allege whether the contract was oral or in writing, nor on the ground that it failed to allege any sufficient consideration for the contract, and showed that the same was unilateral, nor on the ground that it set up a contract too indefinite to be enforced.</p>

<p>Motion to reinstate. Before Judge Callaway. Columbia superior court. December 15, 1899.</p>

Action for damages. Before Judge Eve. City court of Richmond county. January 8, 1900.

<p>1. The petition in this case sets forth a good cause of action, and therefore the court did not err in overruling the general demurrer thereto.</p> <p>2. There was no merit in the special demurrer based upon the ground that the petition did not allege where the quarry was located. It was sufficient in this respect, because it informed the defendant of the time of the injury that occurred at this quarry, the name of defendant’s superintendent of the 'work there, gave a general description of the quarry, and set forth such facts and circumstances as would leave no room for uncertainty or doubt to the mind of the owner, who was the defendant, as to what quarry was referred to in the petition.</p> <p>3. Where a municipal corporation is engaged in operating a rock quarry which it owns, a per-son placed there by its authority as general superintendent of the work, with power to direct the movements of its laborers, not joining with them in the labor, and being as to this business the city’s sole and only representative, is the vice-principal, and not the fellow-servant of the workmen under his charge; and this is so whether it was within the scope of his authority to engage the workmen or not.</p> <p>4. Though the immediate cause of a physical injury to an employee may be the negligent act of a fellow-servant, the master is liable, if the fellow-servant did this act under and in obedience to an order given by a vice-principal of the employer, and if the giving of the order was itself an act of negligence as to the defendant.</p> <p>5. There was no error in the court charging the jury : “It was the duty of the defendant to furnish a reasonably safe place for this man to work. It was the right of the plaintiff to assume that the place was safe when he was directed to go to it.” In the light of the pleadings, testimony, and the entire charge of the court, the language quoted, which is, abstractly considered, a correct statement of a general rule of law, was not calculated to mislead the jury.</p> <p>6. A request to charge on a defense not set up by the answer, either by affirmative statement or by denial of any of the allegations in plaintiff’s petition, was properly refused. There being an agreed statement of facts “that the tract of land on which this accident happened formerly belonged to the Augusta Canal Company ; that the right to quarry was conveyed to the City Council of Augusta under the provisions of the act of 1849, and that the City Council of Augusta has police jurisdiction over the tract; . . that this tract comes within the provisions of the act,” it was not ultra vires to operate the quarry for the purpose of obtaining the material to repair the streets or a canal which the defendant had authority to own and operate.</p> <p>7. The testimony in the present case showing that the operation by defendant of the quarry in question was a ministerial act on its part, and there being no evidence to indicate that the work in which the city was engaged was governmental ip its nature, the court did not err in refusing a request of defendant’s counsel to charge the jury on this subject.</p> <p>8. A person whose capacity to labor has been permanently diminished by •/hysical injury wrongfully inflicted upon him by another can recover damages therefor, notwithstanding there may have been no proof as to what such person’s earnings were before or after the injury. Hence, there was no erroi’, in the light of the pleadings and the evidence in this case, for the court to charge the jury on the subject of the right of plaintiff to recover for his decreased capacity to work, if the jury found from the evidence that the injury received was permanent.</p> <p>9. There being nothing either in the pleadings or the evidence which gave the jury a right to find any damages growing out of the diminished earnings of plaintiff for his labor resulting from the alleged injury, it was error for the court to charge the jury to inquire whether there would have been any increase in plaintiff’s earning capacity if this injury had not occurred, and to say how much that was affected by the injury, and then allow what they believed would compensate him for that loss.</p> <p>10. The above covers all the questions of importance made by the present record. While there are several other grounds in the motion for a new trial relating to requests to charge, after comparing them with the entire charge of the court actually given, they are not of sufficient merit to require notice. The charge as a whole, except as specified in the ninth headnote above, was full and fair, and covered all the material issues between the parties. The judgment denying a new trial is reversed only because of the error therein indicated.</p>

Action on insurance policy. Before Judge Reid. City court of Atlanta. May term, 1899. Mrs. Lucy L. Reese sued the Fidelity Mutual Life Association for the amount of a policy issued by it upon the life of her husband, T. B. Reese. Upon the trial the evidence submitted in behalf of the plaintiff was, in brief, as follows: T. B. Reese applied do the defendant company for a policy of insurance on his life for $2,000, in favor- of his wife, Lucy L. Reese.

<p>1. An agent who has authority only to receive proposals to purchase the property of his principal and submit the same to the latter for acceptance or rejection can not make an absolute contract of sale which will be binding upon the principal.</p> <p>2. When, in an action against a corporation for the breach of an alleged contract for the sale of land, the petition described the person with whom the plaintiff dealt in making the contract as “the agent of said defendant company, empowered by said defendant company to negotiate with this complainant the sale of” the land, the words quoted, whatever'mightbe their true intent and meaning when standing alone, must be construed in connection with all the allegations-of the petition.</p> <p>3. Thus construing these words in the petition now under review, the agent therein referred to was not authorized to make for the defendant a binding contract of sale, but only to receive and submit to the company offers for the purchase of the land in controversy. This being so, and the plaintiff not being entitled to recover save on the theory that the agent had power to sell, the demurrer to the petition was properly sustained.</p>

Petition for direction. Before Judge Brinson. Richmond superior court. April term, 1899.

<p>1. The privilege given by the statute to a claimant to withdraw his claim one time without the consent of the plaintiff in fi. fa. must be exercised before a judgment has been rendered finding the property subject and assessing damages because the claim was interposed for delay only., and when, after such a judgment has been rendered in a justice’s court, an appeal therefrom is taken to the superior court, the claimant has no right in the latter court to withdraw his claim, without the consent of the plaintiff.</p> <p>2. There being in this case no finding by the jury as to the value of the property levied upon, the court erred in adjudging that the ten per cent, damages which they found against the claimant, because in their opinion the claim was filed for delay only, should be assessed upon the full amount of the execution; for, under the Civil Code, §4627, this can not be done unless the value of the property in dispute exceeds that amount, and in the absence of any finding that such is the fact there is no lawful basis for making such an assessment.</p> <p>3. Inasmuch as the provisions of the code in relation to the assessment of damages for entering a frivolous appeal are necessarily applicable to those cases only in which money verdicts are rendered, and can not be enforced in claim cases, the court committed further error in giving judgment against the claimant for twenty per cent, of the amount .of the execution, as damages for entering an appeal which the jury found was frivolous.</p> <p>4. Since, however, the commission of errors in entering a judgment affords no cause 'for granting a new trial, but should be made the subject-matter of a direct bill of exceptions, the grounds of the motion for a new trial now under review, complaining of the errors pointed out in the two preceding notes, were entirely without legal merit.</p> <p>. 5. The evidence in this case demanded the verdict returned by the jury. This being so, the general grounds of the motion for a new trial afforded no reason for setting the verdict aside; and as the only special ground of that motion, other than those relating to the errors committed in rendering the judgment, is based upon the refusal to allow the claim to be withdrawn, which ruling was right, there was no cause whatever for granting a new trial, and the court erred in so doing.</p>

<p>1. The right to establish and maintain a public ferry is a franchise, which, in this State, can only be granted by the proper county authorities. Such a grant carries with it no exclusive privileges, but such authorities may, under the laws of this State, grant the right to establish over the same stream such additional public ferries as the public convenience demands; and if the first grantee is injured by the establishment and maintenance of another public ferry, he has no right of action to recover damages therefor; it is damnum absque injuria. '</p> <p>2. To lawfully establish and maintain a private ferry, no franchise is required. Such a right is incident to the ownership of land on' both sides of a stream of water, to enable the owner to better use and enjoy his land. While the owner of a private ferry may lawfully charge and collect toll from persons incidentally crossing thereat, he can not maintain the ferry for use by the public at large. If he does this, or -if he seeks public patronage, or prarsues the business of keeping up the ferry for the public, it loses its character as a private ferry.</p> <p>3. The injunction in this case was not sufficiently comprehensive to protect the rights of the plaintiff. The defendant should have been enjoined from establishing a ferry designed to accommodate the public or any part thereof.</p>

<p>1. When by the terms of a contract one agrees to furnish all material and labor for the construction of a building, and to turn over the same in a finished state to another, on payment of a stipulated price, such a contract is an entire one, and is not to be held as divisible because it contains a stipulation that when the building has arrived at a certain stage of completion the owner may suspend further work, and that, if he elects to do so, a stated sum is to be the compensation for the labor done and material furnished. When in such a case a building had progressed to the stage last indicated, and the contractor abandoned the-work against the will of the owner, the gross sum fixed as the price for completing the entire work is the true “contract price,” and not the sum contemplated to be paid in the event the owner suspended the work at a period before 'completion”.</p> <p>2. The statute which required the owner, who gave out a contract for the erection of a building on his land, to retain twenty-five per cent, of the contract price for the benefit of laborers and materialmen, did not prevent such owner from making partial payments to the contractor from time to time as the work progressed, provided the aggregate of such payments did not exceed seventy-five per cent, of such contract price ; and , if, before the completion of the building according to the contract, the contractor abandoned the work and left the building uncompleted, it was the right of the owner to take possession of the same and complete it. If in doing so the amount required for completion when added to the sums properly paid to the contractor exceeded the original contract price, such owner was not liable to a materialman for any part thereof.</p> <p>Fish, J., dissenting.</p>

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

<p>1. The “interstate commerce clause” of the constitution of the United States does not operate to prevení a State from imposing, for the purpose of raising revenue, a license tax upon persons who, as traveling agents for principals residing in other States, make executory contracts for the sale of goods, and who, when the same are shipped into this State, receive them in bulk, break the original packages in which they are contained, and distribute them among the customers with whom such contracts have been made.</p> <p>2. One upon whose property an execution against another issued by a tax-collector is levied may, under the Political Code, §899, interpose a claim, and consequently has no need of an injunction to prevent the threatened sale.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. August 7, 1899.</p>

<p>Distress warrant. Before Judge Nottingham. City court of Macon. July 29, 1899.</p>

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. April 29, 1899.</p>

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

<p>1. Where a policy of fire insurance set forth various requirements and conditions a violation of which by the insured Avould operate as a forfeiture of the policy, and the same also contained a stipulation requiring the insured to furnish proofs of loss within sixty days after the fire, but did not make failure to do so a ground of forfeiture, and where under the terms of the policy the insurer Avas not liable to make payment until after sixty days from the receipt of such proofs of loss, the policy further providing that no suit thereon should be brought unless commenced within twelve months after the fire: Held, that if the insured furnished the required pr-oofs of loss in time for at least sixty days to elapse between the date upon which they were furnished and the expiration of the twelve months limitation, the policy Avas not forfeited by a failure to furnish such proofs within sixty days after the fire occurred.</p> <p>2: “An invoice of goods purchased is not an inventory of stock to be produced under the ‘iron-safe clause’ of a fire policy.”</p> <p>3. A policy of fire-insurance the consideration for which is A premium payable in a gross sum is entire and indivisible, though the contract insures different classes of property in separate amounts. It follows from this that where such a policy insured both a building and a stock of merchandise therein contained, and provided that in the event the insured failed to take an inventory of the goods at a time specified “this policy shall be null and void from such date,” a breach of this stipulation avoided the insurance on the building as well as on the stock of goods. Little, J., dissenting.</p> <p>4. The plaintiff’s testimony showing affirmatively that they had failed to comply with the stipulations mentioned in the foregoing note, a motion to nonsuit should have been sustained.</p>

<p>The administrator of an estate from which a year’s support for the widow of the intestate has been duly and finally set apart, in money, can not, when an execution has been issued against him for the collection of the same, go behind the judgment for the purpose of showing that he is entitled to a credit upon the judgment for money advanced by him, from the estate, to the widow upon her year’s support before it was finally set aside. Little, J., dissenting.</p>

<p>Indictment for misdemeanor. Before Judge Reese.' Hart superior courts March term, 1900.</p>

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

<p>A solicitor-general, for services rendered in this court in a criminal case wherein it appears that the accused was indicted for a felony and in the trial court convicted of a misdemeanor, is entitled to a fee of fifteen dollars and not thirty dollars.</p>

<p>Indictment for murder. Before Judge Evans. Emanuel superior court. April term, 1900.</p>

<p>Indictment for cheating and swindling — certiorari. Before Judge Littlejohn. Stewart superior court. June 19 1900.</p>

<p>Indictment for burglary. Before Judge Harris. Carroll superior court. April term, 1900.</p>

<p>1. Where a partnership has been fully launched and is continuing, one of the partners can not maintain against the other an action at law for damages resulting to the partnership by reason of the defendant’s failure to perform a duty imposed upon him by a stipulation in the partnership agreement. This is true although the plaintiff may seek to recover only his pro rata share of the damage, and although, at the time the suit is brought, the partnership may owe no debts to third persons and there may be no other debt due by either party to the other.</p> <p>2. An accounting may be had in equity by one partner against the other, without a final winding up and dissolution, in a case where the partnership has, by the agreement, several years to run and where the partnership articles contemplate a settlement at the end of each season.</p>

<p>1. When an action is founded upon an unconditional contract in writing, the judge has power to render a judgment thereon without the intervention of a jury.</p> <p>2. If the plaintiff’s petition in such an action alleges that the contract of the defendant therein sued on was secured by a deed to land executed by him, and prays for a special judgment against the land, and the judge in rendering his judgment upon the note, incorporates therein a special lien upon the land, this latter part ofthe judgment,even if erroneous orvoid, does not invalidate the entire judgment, for the remainder of it is good and, by operation of law, constitutes a lien upon the land effectual from the date of the deed.</p> <p>3. Where, after obtaining such a judgment, the plaintiff filed and had recorded a deed to the land and had the land levied on and sold, and the fund was brought into court for distribution, other judgment creditors, whose judgments were older than the one above mentioned but younger than the deed given to secure the note, could not attack the younger judgment on the ground that the deed given to secure the note was infected with usury.</p>

<p>Trover. Before Judge Spence. Decatur superior court. January 22, 1900.</p>

<p>1. In order to bring an application for injunction within the provisionsof the Civil Code, §4927, as amended by the act of December 20, 1899 (Acts 1899, p. 39), it is essential for the plaintiff to show either that he “has perfect title to the land upon which the timber is situated,” or that he “ has perfect title to the timber ” thereon. The “ perfect title ” must appear upon the face of the paper or papers, an abstract of which the plaintiff tenders for the purpose of showing such title; and unless it does so appear, the requirement that the plaintiff should allege insolvency of the defendant or that the damages will be irreparable is not dispensed with.</p> <p>2. When, therefore, as a part of the plaintiff’s chain of paper title it appears that a deed constituting a part of the same was executed under a power of attorney, in which there was a recital to the effect that the maker thereof had empowered the attorney in fact therein named to convey the title to the timber on the land therein referred to, subject to a time reservation in the maker’s favor, the papers in question did not show a perfect title.</p> <p>3. The plaintiffs in the present case did not show a perfect title, and neither alleged nor proved insolvency of the defendant nor that their damages would be irreparable. There was, therefore, no error in denying the injunction ; the more especially as the judge required of the defendant a bond which was, in his judgment, sufficient to protect the rights of the plaintiffs.</p>

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

<p>1. Even if the provisions of Civil Code, ? 2219, are applicable to the crossing by a street-railroad of any other railroad, the phrase, “heretofore or hereafter chartered by the legislature of this State,” embraces aRtreetrailroad company whose charter, though granted by the secretary of State, has been confirmed and made valid by an act of the General Assembly. A company having such a charter may properly be termed one “ chartered by the legislature.”</p> <p>2. No new burden or servitude is imposed upon a public street or highway by constructing and operating therein a street-railway for the transportation of passengers, the cars of which are propelled by electric power.</p> <p>3. That a street-railway company has under its charter authority to use steam as well as electricity as a motive power is a matter of no consequence in testing its right in a given instance to cross a rail way on a street under a municipal grant restricting the company to the use of electric power, and where it is not seeking to employ steam power.</p> <p>4. A railroad corporation which is permitted to construct its tracks across an existing city street or public road does so subject to the condition that it must submit to the increased inconvenience to it which may result from the growth and development of the city or country and the consequent increase of travel in the usual methods along such street or road.</p> <p>5. A company owning and operating a street-railway of the character above indicated may, under the permission of the proper municipal or county authorities, construct its lines across the track of a steam-railroad company and use the same without instituting condemnation proceedings or being required to pay damages.</p>

<p>Motion for new trial. Before Judge Henry. Johnson superior court. November 1, 1899.</p>

<p>1. A bill of sale purporting to show the conveyance of title to A., “president of ” a designated corporation, “ his executors, administrators and assigns,” is inadmissible for the purpose of showing title in the corporation. If, however, such a bill of sale be admitted in evidence, it is competent for the person to whom it was given to explain by parol that its real purpose was to secure a debt and not to convey the absolute title.</p> <p>2. A party to a case founded upon an alleged contract with a corporation is incompetent to testify that the contract in question was made by the defendant through an agent of the latter since deceased.</p> <p>S. When, in the trial of an action against a corporation for the breach of an alleged contract, the terms of a contract between the defendant and a deceased individual not a party to the case are collaterally relevant, an agent for the defendant, who acted for it in making this latter contract, is not, because of the death of the other party thereto, incompetent to testify with respect to the same.</p>

<p>Affidavit of illegality. Before Judge Seabrook. McIntosh superior court. January 6, 1900.</p>

<p>1. A creditor by accepting a mortgage in his favor which had been executed-without a request from him, and of which he had no knowledge until it was actually tendered to him, acquiesced in and ratified all that had been done in his behalf by the person who procured the execution of the instrument, and occupied the position of giving to all the terms and stipulations therein embraced an assent relating back to the time of its execution.</p> <p>2. When in such a case a mortgage was, at the instance of the directors of an insolvent trading corporation, executed in favor of a creditor thereof, and purported to secure-.the payment of a promissory note due to that creditor, upon which the directors were individually liable as indorsers, the mortgage also reciting that it -was made “ for the purpose of saving harmless the said accommodation indorsers,” then such mortgage, when its validity was questioned by other creditors of the corporation, should, unless falling within an exception to the general rule, have been classed as an instrument which was rendered void by the legal principle forbidding such directors from giving themselves a preference over outside creditors, and not as a security which was good as having been given in the exercise of a statutory right to prefer a particular creditor.</p> <p>, 3. Such an exception might arise if the mortgagee in question, at the time of giving credit, or the directors at the time of becoming liable on the paper, made with the corporation a valid and binding contract for additional security by mortgage to be given on demand, or when such a contingency should occur; but a contract of this kind, to beeffectual, would have to be sufficiently clear and explicit in its terms to be capable of enforcement, and would have to constitute a part of the consideration upon which the credit'was extended, or the liability as indorsers assumed by the directors. There was no such contract in the present case, the undertaking or agreement set up as such being entirely too loose and indefinite in its terms to meet the requirements of the law in this respect.</p> <p>4. As this case was tried upon lines entirely at variance with what is above laid down, there must be another hearing, which should be had in the light of the principles now announced, and the result of which should be in accord therewith.</p>

Action for damages. Before Judge Reese. Elbert superior court. September 12, 1899. The plaintiff was employed by the defendant railroad companies as a brakeman on a freight-train. It became his duty to couple to the engine a car which had been left standing on the track next to the platform at a station, which platform was about as high from the ground as his shoulder.

<p>Injunction. Before Judge Smith. Wilcox superior court. June 22, 1900.</p>

<p>Garnishment. Before Judge Reid. City court of Atlanta. September 9, 1900.</p>

Equitable petition. Before Judge Evans. Bulloch superior court. December 1, 1899. Tom Pierce bought land of Mikell for $240, paying $80 in cash and giving notes for the balance. He afterwards paid all but $40, and, having but $20, procured Parrish to advance the remaining $20 and take to himself a deed from Mikell conveying the land, upon the kgreement that Parrish would make a -deed’conveying the land to Pierce or his wife upon the repay-' merit of the $20 so advanced.

<p>The railway company introduced positive testimony which fully overcame the legal presumption upon which alone the plaintiff’s case rested. Its witnesses were entitled to be believed; for they were not directly contradicted, and the circumstantial evidence by which it was sought to discredit them, while consistent with the theory that they did not swear truly, was also consistent with the theory that they did. In such a case, the positive testimony must control.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. December 27, 1899.</p>

<p>Appeal. Before Judge Reese. Wilkes superior court. November term, 1899.</p> <p>John D. Floyd died intestate in Wilkes county, June 23, 1899. R. A. Almand, as the largest creditor, applied for letters of administration upon the estate. A caveat was interposed by T. G. Greene, designated.as the choice of Catherine A. Greene, Arabella L. Floy.d, and Sophronia Cutten, daughters of Thomas Floyd, deceased, formerly of Putnam county, the caveator being a son of Catherine A. Greene, and these three sisters claiming to be the next of kin of John D. Floyd. The caveat was overruled, and appeal was taken. The caveator admitted that John D. Floyd was never married, and all other facts necessary to make a prima facie case for the applicant. To establish the right of the caveator, it was necessary to prove that Thomas Floyd of Putnam, who married there in 1828 and died there in 1856, was a brother of the intestate’s father John Floyd, who formerly lived in Wilkes county, and who had another son, William, born in 1832, who died about 1860, leaving a wife and daughter, both of whom died in 1878. An entry in a family bible indicated that the father of the intestate was born and reared in Virginia near Petersburg, and left there in 1831. The intestate when in life said, several times, that heihad no Floyd relatives this side of Virginia; that if he had any relatives in Georgia, he did not know, or had not heard, of them. He was not visited by any relative in his last illness. There was formerly a William Floyd who lived near Petersburg, Va. The following testimony of Mrs. Sarah Floyd Bagley, of Petersburg, Va., was excluded on objection: “Will-' iam Floyd had two brothers, John and Thomas. They went south to live. I do not know what part of Georgia they went to. I have heard William Floyd mention the names of' these brothers. He said his brother John went south to live.” This witness appears to have been sixty-four years old in 1899.</p> <p>The following testimony of Sophronia Cutten was excluded on like objection: “I always understood that my father was a Vi rginian, and that he came from Virginia first to Wilkes county, I think, and from there to Putnam county, where he lived and died. When I was a child, two brothers, John and William, visited my father at his home in Putnam county, from Wilkes county. My recollection is that my uncle William’s home was in Virginia, that he visited my uncle John in Wilkes, and they joined in a visit to my father. After this visit I never saw my uncles, nor heard much of them. . . The only John Floyd I personally knew in Wilkes county at any time was my uncle John; his son John I never met, nor his other son William. The John and William I met were my uncles, not my cousins.” The following testimony of Arabella Floyd was excluded on like objection: “I met my father’s nephew, William Floyd, who visited us from Wilkes county to our home in Putnam county in 1852. He remained at our house several months. He often spoke of his brother John Floyd, who lived with him and his father and mother in Wilkes county. He called my father uncle, and the relationship was acknowledged on both sides. He was then about 18 or 20 years of age. I never personally knew any John Floyd of Wilkes county, but have often heard my father speak of a brother John who lived in Wilkes county; and I also heard my father’s nephew William Floyd speak of his father John Floyd, and his brother John Floyd, who lived in Wilkes, while he was on a visit to us in 1852.” The rulings excluding the foregoing and other similar testimony con. trolled the disposition of the case in favor of the applicant.</p>

<p>It is not essential to the validity of a policy of insurance, which was actually signed by the president and secretary of the company by which purported to have been issued, that the person who in behalf of the company, after the policy had been so signed and placed in his hands, filled blanks therein so as to make it a complete contract, and who then delivered the same to the insured, should have been clothed with written authority either to fill such blanks or make the delivery.</p>

<p>Complaint. Before Judge Reese. Madison superior court. ■October 31, 1899.</p>

<p>1. When a guardian makes with a debtor of his ward a final settlement and on receipt of a given sum paid in pursuance thereof discharges such debtor from further liability, the ward, if the settlement, though not a just one, was free from fraud or collusion, can not on arriving at majority maintain against the debtor an action for a balance which he ought to have paid to the guardian upon a proper settlement. Before such an action would lie it would be incumbent on the ward to directly attack and set aside the settlement actually made, and to a proceeding for this purpose the guardian would be an essential party.</p> <p>2. The case is controlled by the ruling above made, and in the light thereof all of the assignments of error, the decision of which is not controlled by the foregoing note, related to rulings which, even if erroneous, were not harmful to the losing party.</p>

<p>Complaint. Before Judge Gober. Cherokee superior court. •September term, 1899.</p> <p>J. P. Spears as administrator of George W. Jefferson, deceased, sued A. K. Scott to recover the sum of $787.91, with interest from March 8, 1895, setting up, in substance, the following facts: On said date Jefferson made a contract with Scott to sell to him land lot 193 and the east half of land lot 169, in the 23d district and seventh section of Cherokee county, on the following terms: Jefferson owed Scott $1,000 with interest, James R. Brown $1,000 with interest, and Mrs. M. E. Strickland, as guardian of R. L. Strickland, $787.91; and Scott agreed to pay the Brown and Strickland debts and cancel his own, in consideration of obtaining deeds to said land. Jefferson made deeds to the laud to Scott, who paid the Brown debt, but refused to-pay the Strickland debt. Wherefore the administrator brought suit to recover the amount of the Strickland debt. Scott answered, admittingthepurchaseofland lot 193andhisagreement to pay the Brown debt and to cancel his own debt, as part of the consideration for the deeds; but denied having purchased the east half of land lot 169, and claimed that he and Jefferson and R. L. Strickland (who had become of age) had made a contract by which he, Scott, agreed that if Strickland would accept $500' for his debt, he'would pay the same in consideration of a deed to be made by Jefferson to Scott to the east half of land lot 169 ;■ that Jefferson executed the deed, but Strickland, who had the matter under consideration, declined to carry out the agreement and accept the $500, and the agreement fell through ; that subsequently Strickland foreclosed his mortgage, sold the east half of land lot 169 thereunder, and bought it in at the sheriff’s sale; that although he, Scott, had kept the deed, he had never been in possession of the land, and, on account of Strickland’s failure to comply with the agreement, he, Scott, was not liable for the Strickland debt — if there was any agreement on his part to pay it, the consideration for his promise had failed. He charged that the suit was really proceeding for Strickland’s benefit; that Strickland was a party to the original agreement and had repudiated it; and he prayed that Strickland be made a party to this cause, and show cause why he should not surrender the east half of land lot 169 and receive the $500, which defendant vras willing to- pay. By consent of all parties, Strickland was made a party plaintiff to the suit, and it was ordered that the same proceed in his name. He thereupon filed a petition, adopting all the allegations of the original petition filed by Spears, administrator, and alleging that all the debts stated by Spears to have been due by Jefferson were owed, and that they were secured by mortgages given by Jefferson on land lot 193 and the east half of 169, Brown’s being the first mortgage, Strickland’s the second, and Scott’s the third; that by mistake land lot 193 had been written 192 in the Strickland mortgage, and.it was a mutual mistake; that Jefferson had made the contract to sell said property to Scott in consideration of Scott paying said debts and cancelling his own, and Scott had agreed to do so, and Jefferson had executed the deeds to Scott, who received them, but afterwards refused to pay the Strickland debt; that Jefferson, outside of the mortgaged property, was insolvent ; that Scott .received the deeds in pursuance of the agreement to pay these debts, knowing that all the lands were covered by the mortgages; that Scott refused to pay the Strickland debt, and petitioner (Strickland) afterwards foreclosed his mortgage and bought in the east half of land lot 169 at sheriff’s sale under this procedure; and that there was due to him the sum of $787.91, with interest from March 8, 1895. He prayed judgment against Scott for this amount, and offered to-release to Scott all claim he had to the said east half of land lot 169, on paym'ent of said amount. Scott answered this petion, practically reasserting his former contentions,'but withdrawing the proposition to pay Strickland $500 if Strickland would convey the east half of lot 169 to him.</p> <p>On the trial Ferguson, who negotiated the transaction as the agent of Jefferson, testified, that Scott knew of these mortgages and understood that they covered land lot 193 and the east half of land lot 169 ; that Jefferson had never owned land lot 192, nor was he ever in possession of it; that Scott afterwards found out that there was a mistake in the Strickland mortgage, and that the land lot was written therein 192 instead of 193; that Scott purchased the. land on the express understanding to cancel his own debt and pay the Brown and Strickland debts, and the deeds were made by Jefferson and delivered to Scott and received by him, and never bought back ; that it was not true that Scott was to pay Strickland $500 for his claim, but he was to pay both debts. Strickland testified, that he had a conversation with Scott, and Scott admitted to him that he was to pay off the Strickland mortgage — that his trade was to pay off the Brown and Strickland mortgages, and cancel his own, and take the land; that he had found out afterwards that there was a mistake in the Strickland mortgage, and that it described the land as land lot 192, instead of 193, and came to see witness (Strickland) to ascertain if the' mistake was in the'mortgage or in the record, and, when he found it was in the mortgage, tried to scare him; that when Scott refused to pay his (Strickland’s) claim, he then foreclosed his mortgage and had the east half of land lot 169 sold, because Scott filed a claim to land lot 193; that he bid off the east half of land lot 169 at the sheriff s sale for $350, and took the sheriff’s deed to the same, .and is seeking to recover the balance due him upon his debt. DuPre testified, that Scott agreed to pay both debts and cancel his own, and that he was told, when the trade was made, /that if he did not take the deeds on the understanding that he was to pay both the Brown and Strickland debts, he could not get the property. Plaintiff put in evidence seven promissory notes for the aggregate sum of $682.50, with interest from date at the rate of eight per cent, per annum, made by Jefferson and payable to Strickland or bearer, dated April 4, 1888, with a credit of all interest up to April 4, 1893, and also a credit on one note of $29.40, dated Feb. 21, 1890. Plaintiff also put in evidence the mortgage from Jefferson to Strickland on lot 192 and the east half of lot 169, dated April 4, 1888, to secure these notes; also, a deed from Jefferson to Scott, dated March 8, 1895, to lot 193, and a deed of the same date from Jefferson to Scott to the east half of lot 169. A nonsuit was granted, and the plaintiff excepted.</p>

<p>1. The words “liable to deteriorate from keeping,” employed in the Civil Code, § 5463, for the purpose of designating a class of personal property which may, under its provisions, be brought to speedy sale, do not apply to articles which because of their enduring nature are unlikely, merely by reason of the lapse of a brief space of time, to undergo changes in form or otherwise causing depreciation in value, but to articles which are for such a reason subject to such changes. An ordinary cotton-press does not. fall within the class described by the words above quoted.</p> <p>2. It is not lawful to levy an execution against an individúal upon property belonging to a partnership of which he is a member. .</p> <p>8. The mere tendering to a levying officer of the affidavits requisite to the interposition of a claim in forma pauperis does not, if he refuses to accept the same and return them to the proper court, make a “claim case” between the plaintiff in fi. fa. and the affiant.</p> <p>4. Since neither the levying officer nor the purchaser at a sale conducted by the former are parties to a claim case, the pendency of such a case does not, relatively to an action by the claimant against them for the recovery of the property sold, constitute lis pendens.</p>

<p>1. An attorney at law employed to file an equitable petition for the appointment of a receiver, and who since the appointment was made retired from the case and had no further connection therewith, was not disqualified as a judge from presiding in a case subsequently brought by the receiver against a third person.</p> <p>2. When it is sought to establish a course of dealings between two persons, with a view to showing that one of them was in the habit of sending his servant to the other for the purpose of purchasing goods, for which payment was uniformly made, evidence tending to show a similar course of dealings between the alleged principal and other persons is not admissible.</p> <p>S. An overcharge, or an unauthorized charge, by a magistrate, of costs al- ■ leged to have accrued in a trial before a jury in his court, can not be made the subject-matter of review by a petition for certiorari complaining of errors made at such trial. The question of paying the costs for the purpose of obtaining the writ of certiorari does not necessarily or properly arise until after the petition has been sanctioned by the judge.</p>

<p>1. A trial judge in passing upon the sufficiency of an answer must base his-judgment upon what the same actually contains, and not upon an erroneous representation as to its contents made in.open court by counsel for-the plaintiff; and this is so although counsel for the defendant may have heard the representation made and have failed to call the attention of the court to the fact that the same was incorrect.</p> <p>2. An answer in a suit brought by a national bank, which set up that a • promissory note on which the plaintiff’s action was founded was usurious . because the payee had reserved as interest an amount exceeding the max- ■ imum legal rate, the figures showing the precise amount of the alleged usury being distinctly alleged, set forth a good defense so far as the interest claimed on the note was concerned.</p>

<p>A court of equity will not by injunction prevent the institution of a prosecution for the violation of a penal municipal ordinance; nor will it, upon petition for an injunction of this nature, inquire into the validity of such an ordinance, upon constitutional or other grounds.</p>

<p>Trover. Before Judge Smith. Wilcox superior court. September term, 1899.</p>

<p>Complaint for land. Before Judge Smith.. Wilcox superior court. September term, 1899.</p>

<p>Petition for injunction. Before Judge Bennet. Coffee superior court. May 26, 1900.</p>

<p>Injunction. Before Judge Lumpkin. Fulton superior court. .June 8, 1900.</p>

<p>Probate of will — appeal. Before Judge Candler. Whitfield superior court. December 22, 1899.</p>

Complaint for land. Before Judge Henry. Floyd superior court. July term, 1899. On .June 27, 1899, C. M. Towns, for himself and as next friend of two minor Towns children, sued Smith to recover a three-fourths undivided interest in a city lot. Attached to the petition is a deed dated June 22, 1885, from J. H. Cooper to Mary W. Towns and the heirs of her body born and to be horn.

Equitable petition. Before Judge Evans. Bulloch superior court. December 1, 1899. Appraisers appointed to set apart a year’s support to the widow and child of Caldwell included in their return a soda-fount, to which Puffer & Sons, from whom he had bought it, claimed title under an instrument executed by him at the time of the sale, as security for the purchase-money.

Habeas corpus. Before Judge Falligant. Chatham superior court. April 7, 1900. This was a proceeding to obtain the release of a prisoner sentenced under the Penal Code, § 655, for aiding an articled seaman to desert from a vessel while in the waters of this State; it being contended that this section is unconstitutional because the power to legislate upon the subject-matter of the section is exclusively in the Congress of the' United States.

Injunction. Before Judge Janes. Polk superior court. April 20, 1900. The plaintiff’s daughter, thirteen years of age, attended the school of the defendant corporation, which is a participant of the public-school fund of Polk county.

Injunction. Before Judge Iiansell. Lowndes superior court. May 21, 1900. The county commissioners caused the tax-collector of Lowndes county to enter upon the tax-books certain assessments calculated from returns made by the railway company to the comptroller-general, and to issue executions thereon, .amounting to many thousands of dollars, for double taxes alleged to be due by the company for the ten years 1880-1889.

<p>Indictment for larceny after trust. Before Judge Butt. Muscogee superior court. May term, 1899.</p>

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

<p>Equitable petition. Before Judge Felton. Bibb superior court. November term, 3898.</p>

<p>Bail-trover — appeal. Before Judge Felton. Bibb superior court. April term, 3899.</p>

<p>Appeal. Before Judge Reese. Elbert superior court. March term, 1899.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. April term, 1899.</p>

<p>Dispossessory warrant. Before Judge Reese. Elbert superior court. March term, 1899.</p>

<p>Appeal. Before Judge Reese. Elbert superior court. March term, 1899.</p>

<p>Injunction, etc. Before Judge Russell. Gwinnett county. June 30, 1899.</p>

<p>Exceptions to auditor’s report. Before Judge Reese. Hart superior court. ■ March term, 1899.</p>

<p>Equitable petition. Before Judge Smith. Twiggs superior court. November term, 1898.</p>

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

<p>Complaint. Before Judge Felton. Bibb superior court. April-term, 1899.</p>

<p>Affidavit of illegality. Before Judge Felton. Crawford superior court. March term, 1899.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. July 29', 1899.</p>

<p>Certiorari. Before Judge Estes. Rabun superior court. February term, 1899.</p>

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

<p>Complaint for land. Before Judge Henry. Floyd superior court. December 21, 1898.</p>

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

<p>Foreclosure of mortgage. Before Judge Felton. Bibb superior court. April term, 1899.</p>

<p>Action for damages. Before Judge Reese. Taliaferro superior court. July 21, 1899.</p>

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

<p>Complaint. Before Judge Estes. Habersham superior court. March term, 1899.</p>

<p>Complaint. Before Judge Estes. Rabun superior court. February term, 1899.</p>

<p>Extraordinary motion for a new trial. Before Judge Russell. Gwinnett superior court. May 23, 1899.</p>

<p>Rule. Before Judge Estes. Habersham superior court. March term, 1899.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. . January 13, 1900.</p>

<p>Action for damages.. Before JudgeGober. Cobb superior court. November term, 1898.</p>

<p>Garnishment. Before Judge Gober. Cobb superior court. November term, 1898.</p>

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

<p>Equitable petition. Before Judge Fite. Catoosa superior court. June 2, 1899.</p>

<p>Petition for injunction. Before Judge Smith. Wilcox county. December 29, 1899.</p>

<p>Foreclosure of mortgage, etc. Before Judge Harris. City ■court of Cartersville. June term, 1899.</p>

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

<p>Petition for direction. Before Judge Russell. Clarke superior court. April term, 1899..</p>

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

<p>Motion to distribute money. Before Judge Henry. Floyd superior court. July term, 1899.</p>

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

<p>Petition for certiorari. Before Judge Sheffield. Randolph superior court. January 15, 1900.</p>

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

<p>Complaint. Before Judge Spence. Calhoun superior court. December term, 1898.</p>

<p>Complaint. Before Judge Henry. Floyd superior court. March 30, 1899.</p>

<p>Levy and claim. Before R. T. Fouche, judge pro hac vice. Chattooga superior court. January term, 1899.</p>

<p>Complaint. Before Judge Henry.' Floyd superior court. June 9, 1899.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. April term, 1899.</p>

<p>Money rule. Before Judge Littlejohn. Macon superior court. May term, 1899.</p>

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

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

<p>Indictment for burglary. Before Judge Candler. Bibb superior .court. November term, 1899.</p>

<p>Accusation of selling liquor. Before Judge Proffitt. City court of Elberton. February term, 1900.</p>

<p>Accusation of larceny from the house. Before Judge Prior. City court of Hall county. February term, 1900.</p>

<p>Indictment for larceny. Before Judge Seabrook. Liberty superior court. January 17, 1900.</p>

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

<p>Accusation of larceny. Before Judge Parks. City court of ' Dawson. March 19, 1900.</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. August 26, 1899.</p>

<p>Indictment for murder. Before Judge Reagan. Spalding superior court. January term, 1900.</p>

<p>Appeal. Before Judge Henry. Walker superior court. August term, 1899.</p>

<p>Action for damages. Before Judge Janes. Polk superior court. August term, 1899.</p>

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

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

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

<p>Certiorari. Before Judge Reagan. Butts superior court.. August term, 1899.</p>

<p>Illegality. Before Judge Janes. Douglas superior court. November term, 1899.</p>

<p>Action for damages. Before Judge Harris. Fayette superior court. September 2, 1899.</p>

<p>Action for damages. . Before Judge Hammond. City court of Griffin. December term, 1899.</p>

<p>Appeal. Before Judge Reagan. Pike superior court. December 18,. 1899.</p>

<p>Action for damages. Before Judge Janes. Polk superior court. August term, 1899.</p>

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

<p>Petition for certiorari. Before Judge Hart. Laurens superior court. March 14, 1900.</p>

<p>Indictment for gaming. Before Judge Reese. Hart superior court. March term, 1900.</p>

<p>Indictment for larceny from the house. Before Judge Sparks. City court of Brunswick. February term, 1900.</p>

<p>Complaint on account. Before J. IT. Martin, judge pro hac vice. Marion superior court. . October term, 1899.</p>

Indictment for misdemeanor. Before Judge Longley. City court of LaGrange. March term, 1900.

<p>Action for damages. Before Judge Reagan. Monroe superior court. August term, 1899.</p>

<p>Indictment for selling liquor without license. Before Judge Robinson. City court of Wrightsville. April term, 1900.</p>

<p>Motion for new trial. Before Judge Smith. Pulaski superior court. August term, 1899.</p>

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

<p>Libel for divorce. Before Judge Hart. Greene superior court. August term, 1899.</p>

<p>Year’s support — appeal. Before Judge Hart. Morgan superior court. August 25, 1899.</p>

<p>Petition for injunction. . Before Judge Spence. Dougherty superior court. February 12, 1900.</p>

<p>Rule for contempt. Before Judge Hart. Greene superior-court. August term, 1899.</p>

<p>Complaint. Before Judge Butt. Chattahoochee superior court. September term, 1899.</p>

<p>Complaint. Before Judge Smith. Dodge superior court. October 25, 1899.</p>

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

<p>Equitable petition. Before Judge Sheffield. Mitchell superior court. October term, 1899.</p>

<p>Levy and claim. Before Judge Smith. Montgomery superior court. November term, 1899.</p>

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

<p>Complaint. Before Judge Bennet. Clinch superior court. October term, 1899.</p>

<p>Petition for certiorari. Before Judge Brinson. Richmond superior court. April 11, 1900.</p>

<p>Indictment for setting woods on fire. Before Judge Estes. Union superior court. April term, 1900.</p>

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

<p>Petition for injunction. Before Judge Spence. Decatur county. February 28, 1900.</p>

<p>Complaint for land. Before Judge Lumpkin. Fulton superior court. October 2, 1899.</p>

<p>Certiorari. Before Judge Candler. DeKalb superior court. December 12, 1899.</p>

<p>Foreclosure of mortgage. Before Judge Lumpkin. Fulton superior court. January 1, 1900.</p>

<p>Action for damages. Before Judge Reagan. Henry superior court. October term, 1899.</p>

<p>Complaint. Before Judge Janes. Polk superior' court. August term, 1899.</p>

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

<p>■ Levy and claim. Before Judge Henry. Floyd superior court. January 31, 1900.</p>

<p>Action for damages. Before Judge Candler. DeKalb superior court. December 12, 1899.</p>

<p>Distribution of money. Before Judge Sheffield. Miller superior court. October term, 1899.</p>

<p>Trover — certiorari. Before Judge Bennet. Wayne superior court. September 2, 1899.</p>

<p>Equitable petition. Before Judge Evans. Tattnall superior court. October term, 1899.</p>

<p>Equitable petition. Before Judge Evans. Bulloch superior court. December 1, 1899.</p>

<p>Complaint. Before Judge Seabrook. Washington superior court. May term, 1899.</p>

<p>Certiorari. Before Judge Falligant. Chatham superior court. August 12, 1900.</p>

<p>Ejectment. Before Judge Seabrook. Effingham superior court. October 23, 1899.</p>

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

<p>Dismissal of motion for new trial. Before Judge Seabrook. Effingham superior court. November 16, 1899.</p>

<p>•Injunction. Before Judge Fite. Bartow county. May 26, 1900.</p>

<p>Equitable petition. Before Judge Hart. Henry superior' court. December term, 1899.</p>

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

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

<p>Certiorari. Before Judge Seabrook. Liberty superior court. August 9, 1899.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. November 4, 1899.</p>

<p>Action on insurance policy. Before Judge Seabrook. Effingham superior court. November term, 1899.</p>

<p>Action on insurance policy. Before Judge Nottingham. City court of Macon. November 4, 1899.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. December 27, 1899.</p>

<p>Appeal. Before Judge Reese. Lincoln superior court. October term, 1899.</p>

<p>Affidavit of illegality. Before Judge Reese. Glascock superior court. August term, 1899.</p>

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

<p>Certiorari. Before Judge Reese. . Elbert superior court. September term, 1899.</p>

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

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

<p>Equitable petition. Before Judge Reese. Wilkes superior court. November term, 1899.</p>

<p>Complaint. Before F. F. Juhan, judge pro hae vice. City court of Gwinnett. July term, 1899.</p>

<p>Action for damages. Before Judge Russell. Walton superior court. August term, 1899.</p>

<p>Objections to return of processioners. Before Judge Russell. Franklin superior court. September term, 1899.</p>

<p>Action for damages. Before Judge Russell. Clarke superior court. October 11, 1899.</p>

<p>Complaint. Before Judge Gober. Cobb superior court. July 28, 1899.</p>

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

<p>Complaint. Before Judge Candler. Pickens superior court. September term, 1899.</p>

<p>■ Complaint. Before Judge Gober. Cherokee superior court. August 23, 1899.</p>

<p>Certiorari. Before Judge Fite. Catoosa superior court. August term, 1899.</p>

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

<p>Complaint. Before Judge Candler. Pickens superior court. September term, 1899.</p>

<p>Certiorari. Before Judge Fite. Murray superior court. August term, 1899.</p>

<p>Certiorari. Before Judge Fite. Catoosa superior court. August term, 1899.</p>

<p>Injunction. Before Judge Reagan. Monroe county. June 14, 1900.</p>

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

<p>Levy and claim. Before Judge Sheffield. Terrell superior court. December 2, 1899.</p>

<p>Complaint. Before Judge Butt. Muscogee superior court. October 30, 1899.</p>

<p>Complaint for land. Before Arthur Gray Powell, judge pro •hac vice. Miller superior court. October term, 1899.</p>

<p>Petition for injunction. Before Judge Spence. Worth superior court. May 28, 1900.</p>

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

<p>Petition for injunction. Before Judge Lumpkin. Fulton superior court. June 26, 1900.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. November 28, 1899.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. September term, 1899.</p>

<p>Complaint. Before Judge Candler. Campbell superior court. December 29, 1899.</p>

<p>Garnishment. Before Judge Nottingham. City court of Macon. September term, 1899.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. January 22, 1900.</p>

<p>Mandamus. Before Judge Felton. Crawford superior court. June 8, 1900.</p>

<p>Complaint. Before Judge Proffitt. City court of Elberton. January 10, 1900.</p>

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

<p>Equitable petition. Before Judge Russell. Banks superior court. September term, 1899.</p>

<p>Distress warrant — certiorari. Before Judge Russell. Jack•son superior court. November term, 1899.</p>

<p>Complaint. Before Judge Prior. City court of Hall county. November 23, 1899.</p>

<p>Complaint. Before Judge Prior. City court of Hall county. November term, 1899.</p>

<p>Foreclosure of lien. Before Judge Gober. Cobb superior court. November term, 1899.</p>

<p>Certiorari. Before Judge Gober. Forsyth superior court. August term, 1899.</p>

<p>Distress warrant. Before Judge Harris. City court of Cartersville. August 23, 1899.</p>

<p>Foreclosure of mortgage. Before Judge Fite. Murray superior court. January 6, 1900.</p>

<p>Action for damages. Before Judge Candler. Whitfield superior court. November 28, 1899.</p>

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

<p>Levy and claim. Before Judge Fite. Gordon superior court. May 15, 1899.</p>