Volume 112 — Georgia Reports

<p>1. When in a contract for the construction of a given work it was stipulated that it was to be completed by a designated date, time as to this matter being of the essence of the contract, and that “the failure on the part of [the contractor], the [other party] having faithfully kept and performed all of [his] covenants, to complete the same in the time specified may be considered sufficient reason for the forfeiture of ” five per cent, of the contract price: Held, that even if the agreement respecting forfeiture be treated as a stipulation for liquidated damages reasonable as to amount, and not for a penalty, the party for whom the work was done was not entitled to retain the five per cent, as such damages if he on his part failed to duly keep and perform his covenants as set forth in the contract.</p> <p>2. A stipulation in such a contract that if delays in the completion of the work should be “ occasioned by epidemics, strikes, or providential causes, a reasonable extension of time for the completion of this contract shall be made,” when qualified by the condition that “timely notice of all such delays shall be given ” by the contractor to the other party, did not proprio vigore operate to relieve the former from liability for damages resulting to the latter because of delays thus brought about; but under such a contract it was incumbent upon the contractor to give actual notice to the other party of such delays within a reasonable time after their occurrence, and make thereon proper claims for extensions of time. Tailing in these respects, the consequences of such delays were chargeable to him to the same extent as if they had been occasioned by his own fault or negligence. The error dealt with in this note is corrected by an appropriate direction.</p> <p>S. Where the work constituting the subject-matter of such a contract was the construction of a railroad, and it was not completed until after the lapse of two months from the date fixed by the contract, the railroad company, even if entitled to damages arising from loss of profits during these two months, could not prove the amoilnt of such loss by showing what were its profits during the corresponding months of the next ensuing year.</p> <p>4. The material questions of law involved in the present case are disposed of by the preceding notes. As to the issues of fact, no sufficient reason for disturbing the findings of the auditor, or the verdict sustaining the same, appears.</p>

<p>1. That paragraph of the constitution of 1868 which provided the manner in which laws and sections of the code should be amended or repealed was by its own terms to be construed as directory only to the General Assembly.</p> <p>2. The local act of Ahgust 26, 1872 (Acts 1872, p. 478), providing that “the county of Washington be excepted from the operation of the act entitled act to create a county court .in each county of the State of Georgia, approved January 19, 1872,”' does not “contain any matter different from what is expressed in the title thereof. ”</p> <p>3. There was nothing in the constitution of 1868 prohibiting the General Assembly from varying by a local or special law an existing general law on a subject not affecting private rights.</p> <p>4. One act will not repeal another by implication when there is no conflict between the two acts.</p> <p>6. The local act of August 26, 1872, providing that no county court should be established for Washington county under the county-court act of that year, was not in any way affected by the local act of 1879, repealing the act creating a criminal court for Washington county, nor by the act passed in that year striking certain named counties from the list of excepted counties in the county-court act of 1872, nor by the act of 1879 providing for uniformity in the jurisdiction of and procedure and method of appointment of officers in the county court.</p> <p>6. The local act of August 26, 1872, declaring that the county-court act of that year should not apply to Washington county, was not in any way affected by the fact that the Codes of 1873 and 1882 did not in any manner refer to such local act.</p> <p>7. Even if, since the adoption of the Code of 1895, a county court could be lawfully established in Washington county upon the recommendation of the grand jury, there is nothing in that code which would have the effect of making valid the attempted establishment of such a court prior to the adoption of the code.</p>

<p>Indictment for misdemeanor. Before Judge Ealligant. Chat-ham superior court. August 20, 1900.</p>

<p>Indictment for burglary. Before Judge Henry. Floyd superior .court. May 18, 1900.</p>

<p>Indictment for simple larceny. Before Judge Fite. Catoosa superior court. June 16, 1900.</p>

<p>Indictment for burglary. Before Judge Gober. Forsyth superior court. September 12, 1900.</p>

<p>Acensation of vagrancy. Before Judge Toombs. City court of Washington. August 25, 1900.</p>

<p>Indictment for arson. Before Judge Butt. Marion superior court. July 21, 1900.</p>

<p>A merchant who gives to a designated class of customers an opportunity to secure by lot or chance any article of value additional to that for which such customers have paid violates the provisions of section 407 of the Penal Code, which declares that no person “ shall keep, maintain, employ, or carry on any lottery in this State, or other scheme or device for the hazarding of any money or valuable thing.”</p>

<p>Indictment for gaming. Before Judge Reece. City court of Floyd county. July 18, 1900.</p>

<p>1. A subpoena commanding the presence of a person in court as a witness is a judicial writ, and to be valid must, when there is a clerk, be signed and issued by that officer.</p> <p>2. A subpoena to which the attorney for a defendant has signed the name of the clerk, under a general direction from that officer to “ prepare” the subpoenas in the case, is not valid, and, although served, cannot be a legal basis for a motion to continue the case on the ground of the absence of the witness so served.</p>

<p>Accusation of selling liquor. Before Judge Winn. City court of Gwinnett. June 18, 1900.</p>

<p>Indictment for murder. Before Judge Gober. Pickens superior court. September 12, 1900.</p>

<p>1. A brought an action against B and C. Both answered, B making no substantial issue with A, but seeking certain relief against C, in which A had no concern, and C making no reply to B’s allegations or prayers. The case went to trial with no demurrer or objection by any party as to the pleadings, and resulted in a general verdict for C. A and B each moved for a new trial. Their motions were overruled, and they sued out separate bills of exceptions. Held, upon this state of facts, that separate writs of error were properly sued out, and that neither was subject to dismissal by the Supreme Court because of the suing out of the other.</p> <p>2. If one who owes to another a debt infected with usury obtains from him a loan of money at a lawful rate of interest, executes a deed to secure the payment of this loan, and out of the proceeds thereof actually and bona fide pays off the old debt, the deed is not void for usury; aliter, if the transaction as a whole be merely colorable and designed as a cloak to cover up the usury in the original indebtedness.</p> <p>3. No party can justly complain of a charge which could not in any way have injuriously affected him.</p> <p>4. The rule of law that the occupancy of land by a husband and wife jointly is presumptively by virtue of his possession was not applicable to the facts 'of the present'case.</p>

<p>Indictment for selling liquor. Before Judge Reagan. Monroe superior court. September 15, 1900.</p>

<p>Action for damages. Before Judge Fite. Catoosa superior court. February term, 1900.</p>

<p>• Action for damages. Before Judge Fite. Gordon superior court. February term, 1900.</p>

<p>Complaint. Before Judge Fite. Gordon superior court. February term, 1900.</p>

<p>Certiorari. Before Judge Janes. Haralson superior court. January term, 1900.</p>

<p>1. Where counsel for one on trial for murder, in writing, requested the court to give in charge to the jury section 71 of the Penal Code, “ and in the course-of his oral argument . . requested the court to give to the jury in charge the sections of the code in reference to justifiable homicide,” the oral request, fairly interpreted, should not have been held to mean more than that the court was asked to give in charge so much only of those sections as was, under the evidence and the statement of the accused, pertinent and applicable to the case on trial.</p> <p>2. There was nothing, either in the evidence or the statement of the accused, which warranted the judge in charging the law contained in section 73 of the Penal Code, and his doing so was, therefore, erroneous.</p> <p>3. While it is not competent to impeach a witness by proving that he has led a life of moral turpitude, or has been guilty of immoral acts, a witness whose own testimony discloses that such are the facts with respect to his life and conduct may be thereby discredited, the jury being left free to determine for themselves what weight and effect should be given to such facts. While the instructions on this subject of which complaint is made in the present case were not technically correct, they were not, as applied to the evidence actually before the jury, substantially out of harmony with what is above announced.</p> <p>4. Under the evidence in the case, there was no error in instructing the jury as follows : “ You have a right to consider the circumstances and condition of any witness as proven to have been at the time of the incidents about which said witness testifies. You may consider such condition of any witness as to soberness, the surroundings of such witness, with reference to determine whether or not such witness was in a condition to see and understand what was occurring.”</p> <p>5. Declarations made by one actually in a dying condition and conscious of tile fact are admissible as dying declarations, notwithstanding the fact that a physician, either before or after such declarations were made, informed the declarant that there was a chance for him to recover.</p> <p>6. Whether after certain declarations were, without objection, admitted as a part of the res gestse, it was or was not proper for the court to leave to the jury the question of their competency, so doing was certainly not erroneous as against one holding the position that such declarations were incompetent as evidence.</p> <p>7. It is not erroneous to refuse to allow a witness to testify to his opinion as an expert, when it does not affirmatively appear that he is an expert with respect to the matter in which his opinion is sought.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. September 17, 1900.</p>

<p>1. When a prosecutor is required by rule to show cause why he should not be compelled to pay the costs of a criminal case, because of a return by the grand jury of “ no bill, malicious prosecution ” upon a bill of indictment, it is not competent for him to show by evidence that such return was not well founded in fact.</p> <p>2. The court may in such a case enforce the payment of the costs by ordering the prosecutor to be imprisoned until the same shall have been paid.</p>

<p>1. When, on the trial of an alleged accessory before the fact to the crime of arson with respect to a particular house there was evidence warranting a finding that the accused had incited the alleged principal to burn this house and another, evidence tending to show that the latter house was in fact fired on the same night as the former, and by the alleged principal, was admissible.</p> <p>2. To warrant a conviction of a felony upon the corroborated testimony of an accomplice, the corroborating evidence need not be in and of itself so strong.as to support a verdict of guilty, but it must be sufficient to connect the accused with the perpetration of the offense and lead to the inference of his guilt, and more than sufficient to raise a suspicion against him.</p> <p>3. Where the judge had correctly and fully instructed the jury as to the rule of law above laid down, it is not cause for a new trial that he charged as follows: “If you are satisfied from the evidence, under the rules explained to you, that the defendant and [the alleged principal] did conspire or agree to burn the property alleged in the bill of indictment, then it is for you to say what weight you will attach to the various circumstances illustrating the intention of the defendant, or corroborating the testimony of the accomplice, or going to prove whether or not the defendant continued in that intention ; but if that intention did not remain with the defendant up to the time of the burning, he could not be found guilty as an accessory before the fact.”</p> <p>4. There was no error in admitting evidence; nor in refusing to require a question which had been fully answered to be answered again. The trial judge duly complied with the request of the jury for a recharge on specified points. The testimony of the accomplice was sufficiently corroborated to warrant the verdict.</p>

<p>Certiorari. Before Judge Fite. Dade superior court. March term, 1900.</p>

<p>Certiorari. Before Judge Fite. Dade superior court. March term, 1900.</p>

<p>1. When a bill of exceptions affirmatively recites that it is tendered within thirty days after the adjournment of the term of the court at which the judgment excepted to was rendered, and the trial judge certifies such bill of exceptions in terms of the statute, it will be assumed here that it was tendered in due time.</p> <p>2. The petition in the present case, though somewhat loosely drawn both as to allegations and prayer, substantially sets forth the breach of a contract for the sale of land, and prays for the recovery of the damages alleged to have resulted from such breach. It was good, therefore, as against a general demurrer.</p> <p>3. The petition in an action for the breach of a contract for the sale of land is not demurrable because it fails to allege that such contract was in writing.</p> <p>4. The petition was not demurrable for want of necessary parties.</p>

<p>Complaint for land. Before Judge Eite. Whitfield superior -court. April term, 1900.</p>

<p>Trespass. Before Judge Fite. Whitfield superior court. April term, 1900.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd county. July 31, 1900. • •</p>

<p>1. A claimant of property which, has been levied on, though he sells it while the claim case is pending, may at the trial thereof maintain his title to the property as it stood when the claim was filed.</p> <p>2. Evidence tending merely to show that attorneys at law in whose office interrogatories were executed were associate counsel of the attorney representing at the trial of a case the party in whose behalf the interrogatories were sued out would not have shown that they were executed by employees of such associate counsel; nor would it have been proper to compel the attorney present at the trial to testify to any fact respecting the execution of the interrogatories of which he had no knowledge other than that derived from letters written to him by the absent attorneys.</p> <p>3. Inaccuracy in a charge which could not possibly have injured the party complaining thereof does not afford any cause for granting him a new trial.</p> <p>4. The drawee of a draft to which is attached a bill of lading under which goods are consigned to the order of the drawer acquires neither’ the right to the possession of the bill of lading nor title to the goods until he pays or secures the payment of the draft according to the custom of the trade or the course of dealing between himself and the drawer.</p> <p>5. Where a bank advanced money upon such a draft, taking as security therefor the attached bill of lading properly indorsed, and, after a levy upon the goods as the property of the consignor, filed a claim thereto, its right to maintain this claim was not lost merely because, while the claim case was pending, the drawee refused to accept the goods and pay the draft, and in consequence the bill of lading was “indorsed over” to the consignor for the sole purpose of having him dispose of the goods for the bank’s exclusive benefit.</p> <p>6. The evidence in the present case not only warranted but demanded the verdict.</p>

<p>Indictment for larceny from the house. Before Judge Felton. Bibb superior court. June 26, 1900. ■</p>

<p>Accusation of selling liquor without license. Before Judge Parker. City court of Baxley. July 5, 1900.</p>

<p>Indictment for murder. Before Judge Harris. Carroll superior court. June 29, 1900.</p>

<p>Accusation of gaming. Before Judge Hammond. City court of Griffin. June 27, 1900.</p>

<p>"Where in the trial of a murder case the accused presents two theories of defense, to wit, first, that the killing was done to prevent a forcible invasion of his habitation, and, second, -that in killing the deceased he acted under the fears of a reasonable man that a felony was about to be perpetrated upon him, and there is nothing in the evidence or in the statement of the accused to show that there had been any mutual combat, it is error to give in charge to the jury section 73 of'the Penal Code.</p>

<p>Indictment for murder. Before Judge Smith. Irwin superior court. July 25, 1900.</p>

<p>Action for damages. Before Judge Eite. Catoosa superior court. February term, 1900.</p>

Equitable petition. Before Judge Fite. Bartow superior court-July term, 1899. The petition was by Satterfield individually and as administrator ■of Mrs. Stegall, and invoked equitable aid in construing or reforming a bond for title to the intestate from Speir, one of the defendants, as tothe description of a part of the. property to be conveyed.

<p>1. Where an action is instituted in behalf of an alleged imbecile by persons designating themselves as his next friends, they are, upon an adverse termination of the case, primarily liable for the costs; and his estate is liable to them for the amount thereof, if he was in fact an imbecile, and the action was brought in good faith.</p> <p>2. When, therefore, such an action was brought and voluntarily dismissed by the next friends, it was, in the absence of any evidence either as to the fact of imbecility or as to bona fides in instituting the suit, erroneous to tax the costs against the alleged imbecile and enter judgment against him for the same. If he was not an imbecile when the petition was filed, it was wrongfully brought; and if he was, -the above-stated rule as to costs was applicable.</p>

<p>Certiorari. Before Judge Fite. Catoosa superior court. August term, 1900.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd county. February 8, 1900.</p>

<p>Action on contract. Before Judge Reece. . City court of Floyd county. February 19, 1900.</p>

<p>1. A suit against a railway company for personal injuries to a minor, brought in his behalf by his father as next friend, is not, either as to cause of action or as to parties, actually or substantially the same as a suit by the father in his own right against such company for loss of the minor’s services, occasioned by those injuries.</p> <p>(а) The record of the former of two such suits is not, therefore, admissible in evidence on the trial of the latter on the theory that the causes of action were substantially the same.</p> <p>(б) Nor is the testimony of a witness who was sworn on the trial of the former, and who afterwards died, admissible in evidence on the trial of the latter, under Civil Code, § 5186.</p> <p>2. The evidence in this case warranted instructions to the effect that a party is not entitled to recover damages resulting from an injury which he might have avoided or prevented by the exercise of ordinary diligence on his own part.</p> <p>3. Charges which in substance laid down the rule that a father who used, or permitted his minor son to use, a given bridge with full knowledge of specified defects therein, could not recover for injuries occasioned solely by reason thereof, were in the present case appropriate, and were not open to the criticism that they amounted to instructing the jury what was or was not negligence on the part of the plaintiff.</p>

<p>1. The owner of land sold under a tax execution against a prior owner has the right to redeem it by complying with section 909 of the Political Code. The present case does not fall within the provisions of the redemption act of 1898.</p> <p>2. The record does not disclose any error in admitting evidence, and even if the affidavit to the admissibility of which objection was made was for any reason inadmissible in evidence, the judgment was right, being fully authorized by the other evidence in the case.</p>

<p>Action for damages. Before Judge Henry. City court of Floyd county. June term, 1900.</p>

<p>1. When a judgment was entered against a garnishee in a justice’s court, for-failing after due service to answer at the term to which the summons of garnishment was returnable, such judgment, if rendered after the entering of a. judgment against the principal debtor, was conclusive and binding upon the garnishee, and he could not defeat the same by entering an appeal to a jury in the justice’s court, and then filing an answer to the garnishment, denying-indebtedness.</p> <p>2. Notwithstanding this, the garnishee had a technical legal right to enter such an appeal, and the magistrate had no authority to dismiss it because, in his: judgment, it was without merit.</p> <p>3. On certiorari from the judgment of a justice of the peace, dismissing such an appeal, the superior court did not err either in sustaining the certiorari, orín directing that the case be remanded to the magistrate’s court with instructions that the jury return a verdict in favor of the plaintiff.</p> <p>4. Any party dissatisfied with an answer to a writ of certiorari must in due time either file exceptions thereto, or traverse the same, and, failing to do either, is bound by the recitals of fact in such answer contained.</p> <p>6. While tiie statute forbids that the answer to a writ of certiorari shall be written or dictated by either of the parties, or their attorneys, or any other person interested in the case, a magistrate may, if he sees proper, without suggestion from party, counsel, or other interested person, adopt as his answer the recitals of fact contained in the petition for certiorari.</p>

<p>Complaint. Before Judge Janes. Haralson superior court. January term, 1900.</p>

<p>Complaint. Before F. W. Copeland, judge pro hac vice. Walker superior court. February term, 1900.</p>

<p>1. The act of December 21, 1897, “ to permit defendants in actions for the recovery of land held bona fide under adverse claim of title to set off the value of permanent improvements bona fide placed thereon,” etc., is constitutional even as to improvements made before its enactment. Lumpkin, P. J., dissenting.</p> <p>2. A certificate signed by an ordinary for the purpose of authenticating a transcript from a record of file in his court does not conform to law unless it affirmatively discloses whether or not such ordinary was also the clerk of that court.</p> <p>3. There was no error in granting a nonsuit.</p>

<p>Motion for new trial. Before Judge Longley. City court of La-Grange. April 2, 1900.</p>

<p>Motion to amend judgment. Before Judge Freeman. City court of Newnan. January term, 1900.</p>

<p>A married woman who as a principal joined with her husband in executing an order whereby they requested a third person, who had nothing to do with procuring the paper to be signed, to pay an individual debt of the husband, and wherein they promised to reimburse such person for so doing, became bound by the contract expressed in the writing.</p>

<p>1. Sections 4764 and 4765 of the Civil Code, providing the manner in which a nuisance caused by a “mill-dam, or other obstruction to a watercourse,” may be abated, have no application unless the dam complained of as a nuisance was erected and is being used as a means of supplying water-power in operating “ a grist or saw mill, or other water-machinery of valuable consideration.”</p> <p>2. It follows that these sections do not confer upon the ordinary any jurisdiction or authority in a case where the dam alleged to be a nuisance was erected for purposes merely incidental to the operation of a manufacturing establishment, the machinery of which is propelled by steam.</p>

<p>The verdict was amply supported "by testimony, and there was no error at the trial; nor is any new question of law presented for decision by the Supreme Court.</p>

<p>1. The rule of the Railroad Commission of this State, fixing train rates of fare, is adinissible in evidence on the trial of a case involving a controversy as to what amount a conductor was entitled to demand from a passenger without a valid ticket for transporting him from a station outside of this State to a station within the same.</p> <p>2. A railroad-ticket having thereon a special contract signed by the person to whom such ticket was issued, stipulating that it shall be good for the passage of that person only, does not entitle any other person to transportation; nor has a purchaser from the original holder any right to act upon an assurance given by a tickeUagent that the ticket will be accepted for such purchaser’s passage, when it is in the contract further stipulated that no agent shall have authority to alter, modify, or waive in any particular the terms or conditions therein set forth. '</p> <p>3. Under the common law, which, unless the contrary appears, is presumptively of force in any given State of the American Union whose jurisprudence is founded thereon, a carrier of passengers has the right to make reasonable rules and regulations for the conduct of its business. A rule of a railroad company, operative in the State of Tennessee, requiring passengers who fail to supply themselves with tickets sold at three cents per mile to pay conductors cash fares at the rate of four cents per mile, is reasonable.</p> <p>4. One who offers to purchase a railroad-ticket to be used upon a given train after tire ticket-office, so far as relates to the sale of tickets for that train, has been lawfully closed, can not demand the right to ride upon that train without paying the train rate of fare ; nor can one who has been transported upon a train from one station to another without producing a ticket or tendering the proper fare claim the right to resume his journey on that train from the latter station without making a proper settlement for the ride he has actually been permitted to take thereto.</p> <p>5. When a passenger was lawfully ejected from a train and prevented from reentering the same, he had no cause of action unless more force than was necessary to accomplish these ends was employed.</p>

<p>Indictment for simple larceny. Before Judge Felton. Bibb .superior court. June 28, 1900.</p>

<p>Indictment for murder. Before Judge Falligant. Chatham superior court. July 9, 1900.</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. February 3, 1900.</p>

<p>•1. In an action against a railroad company, where several different elements of damage are claimed, it is error requiring the granting of a new trial for the judge to fail in his charge to the jury to give them any rule for estimating the damages claimed; and this is true notwithstanding no written request for such charge is made hy the defendant.</p> <p>2. When in the trial of a suit against a railroad company by a passenger, for damages on account of having been carried beyond his destination, it appeared from uncontradicted evidence that the passenger had paid to the conductor his fare to a named point, it was error to charge the jury, in effect, that it was a question for them to determine whether it was negligence for the conductor to fail to ask the passenger at what station he desired to stop, and to pass that station without making such inquiry.</p> <p>3. In the trial of an action for damages by a passenger for being compelled to ride in a car occupied by disorderly passengers, evidence that the conductor in charge of the train had, prior to the time that the plaintiff became a passenger, made efforts to suppress tire disorder, was irrelevant, when the ques tion to be determined was whether such conductor was diligent in the suppression of disorder which arose after the plaintiff became a passenger.</p> <p>4. WTien a petition in! a suit by a passenger against a railroad company sets forth a complete cause of action for a failure to provide for the comfort of and to properly protect such passenger, allegations of other conduct on tire ' part of the employees in charge of the train, amounting to a similar failure of duty on the same trip, may be properly alleged as matter of aggravation. A recovery may be had on account of such matters of aggravation, notwithstanding it appears at the trial that the conduct of the employees relating to such matters occurred in a county other than that in which the suit on the main cause of action was brought.</p>

<p>Under the fifth section of the act approved September 27, 1883, establishing the city court of Floyd county, the sheriff of that county is entitled to collect from the county, for attendance upon that court, five dollars per day for twenty days in each year, provided the court sits and he is in attendance for that many days.</p>

<p>When the judge of the superior court requires both the sheriff and his deputies to attend the sessions of that court, such deputies have no claim, either in their own right or in the right of the sheriff, against the county for that service.</p>

<p>Levy and claim. Before Judge Henry. Floyd superior court-March term, 1900.</p>

<p>Petition for certiorari. Before Judge Henry. Eloyd superior -court. May 16, 1900.</p>

<p>1. "Where a deed was attacked on the ground that the grantor had not capacity to contract and that the deed was procured.by undue influence, it was error to refuse to allow the grantee, the grantor being dead, to testify that the grantor had lived in her home for several months and she had seen and talked with him daily, and that from these facts it was her opinion that he was of sound mind and mentally capable of making a contract. To give an opinion based on these facts is not such testimony as to transactions or communicEt' tipns had with the deceased as should be excluded under section 5269 of the Civil Code.</p> <p>2. Evidence that the grantor had, prior to the execution of. the deed, frequently expressed an intention to make an entirely different disposition of his property, promising to give it to the person named in his will as sole legatee, was relevant and material in determining whether undue influence was brought to bear to induce the execution of the deed.</p> <p>3. Evidence that such sole legatee had performed for the grantor valuable services, and that the grantor, had agreed as compensation for those services to leave all of his property to such legatee, and showing the amount and value of the services performed, was. relevant and admissible on the question of undue influence.</p> <p>4. There was no material error in any of the other rulings of which complaint was made, and the judgment is reversed solely because of the error dealt with in the first division of this syllabus.</p>

<p>1. A right of action for a tort is not extinguished, by a “compromise settlement” in which a given sum is to be paid to the injured party, unless it be expressly agreed between the parties that the promise to pay the amount fixed by the settlement shall be accepted as a satisfaction Of the original claim.</p> <p>2. Upon the hearing of a certiorari the judge of the superior court has no authority to decide any question which is not raised by a distinct assignment of error in the petition for certiorari. ’</p>

<p>1. Where in the division of her father's estate a married woman was entitled*to certain lands, and her husband insisted that the deed thereto by the other heirs should be made to the husband and wife jointly, and the wife assented; and where the evidence shows that, after the deed was so made, both of them occupied the land, but that the husband never claimed ownership of any part of or interest in the land, whether the wife, by assenting to the naming of her husband as one of the grantees in the deed, intended to give him a half interest in the property, or merely assented to his demand as a caprice on his part and without intending it as a gift, was a question for the jury and not for the judge. It was therefore error to hold that the above facts constituted a gift, and to direct a verdict accordingly.</p> <p>2. The fact that the husband put valuable improvements upon the land is immaterial, when it appears that he did so without claiming any ownership or interest therein.</p>

<p>1. In order-to maintain an action of trespass as to a tract of land it is essential for the plaintiff to show title in himself, or possession ; and when he relies upon possession alone as a basis for recovery, it must be actual possession of that portion of the tract upon which the alleged wrong was committed.</p> <p>2. It follows from the foregoing that a person who has actual possession of apart of a tract of land under a duly recorded deed covering the entire tract, which does not pass the title but is good only as color of title, has not, until after the expiration of seven years, such possession of the residue of the tract as Will authorize him to maintain an action of trespass against a person who-wrongfully enters thereon.</p>

<p>Illegality. Before Judge Janes. Haralson superior court. January term, 1900.</p>

<p>Complaint. Before Judge Janes. Polk superior court. April 12, 1900.</p>

<p>Certiorari. Before Judge Janes. Polk superior court. February term, 1900.</p>

<p>“ Cases of necessity,” contemplated in that provision of the constitution which declares that “ in cases of necessity ” private ways may be granted upon just compensation being first paid, do not arise except where the way sought to be laid out is absolutely indispensable to the applicant as a means of reaching his property. If there is in existence a way suitable for all the purposes for which the property is to be used, a case of necessity does not arise, even though such way may be less convenient than the one proposed.</p>

<p>1. In the trial of a claim case where the execution has been levied upon land, and the plaintiff relies upon the possession of the defendant in fi. fa. after judgment, evidence leaving it uncertain whether the tenant in possession held for such defendant or for the claimant is not sufficient to change the burden of proof from the plaintiff in fi. fa. to the claimant.</p> <p>2. In such a case it is error to charge that if the defendant in fi. fa. was in possession before the judgment, the jury would be authorized to find the property subject.</p>

<p>Foreclosure of lien. Before Judge Janes. Haralson superior court. July term, 1900.</p>

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

<p>Iujunction. Before Judge Bennet. Echols superior court. September 13, 1900.</p>

<p>1. Section 343 of the Political Code requires that every contract made with a county shall be in writing and entered on the minutes of the officers intrusted with county matters. A person who has made a valid written contract with ' the county authorities has a legal ri¿ht, though he may be a non-resident of the State, to have the contract entered on such minutes. If the proper county authorities fail or refuse to make the entry, the judge of the superior court should by mandamus', when'no issue of fact is involved, compel them to do so. Under the facts of the present case, it was error to refuse to make the mandamus absolute.</p> <p>2. That a suit was brought on the contract and dismissed on demurrer on the ground that there was no allegation that the contract had been entered on the minutes will not deprive the party of his right, by mandamus, to compel the proper authorities to make the entry. Whether a plea of res judicata to a second suit upon the contract, after the same has been entered on the minutes, and" with an allegation that the entry has been made, would or would not be good, is not now decided. •. ■</p>

<p>Application for mandamus.</p>

<p>Petition for injunction. Before Judge Falligant. Chatham superior court. February 19, 1900.</p>

<p>Petition for injunction. Before Judge Hansel! Berrien superior court. June 4, 1900.</p>

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

<p>Indictment for assault and battery. Before Judge Nottingham. City court of Macon. June term, 1900.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. January 25, 1900.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton superior court. June 29, 1900.</p>

<p>A conviction of a lighterage company of violating a penal municipal ordinance “ to protecteotton and other merchandise while being loaded, unloaded, or transhipped,” whereby it was prescribed that “all persons engaged in lightering or otherwise transporting” such merchandise must “cover the same, while on lighters or other crafts, with tarpaulins or other more permanent and substantial material,” was not sustainable upon evidence showing that a given cargo of cotton, which had been transported upon a lighter belonging to the company from a wharf to a steamship, was left uncovered while being transferred from the lighter to the ship, when it further appeared by undisputed testimony that the contract of “lightering” was complete as soon as the lighter was placed alongside the ship, and that after this was done the accused had nothing more to do with either lighter or cargo, and when it was not shown that the company was under any statutory duty of keeping cargoes so covered while the same were being unloaded.</p>

<p>Indictment for larceny from the house. Before Judge Nottingham. City court of Macon. June term, 1900.</p>

<p>The evidence was sufficient to prove the corpus delicti and to identify the property alleged to have been stolen; and the guilt of the accused was. satisfactorily established.</p>

<p>Indictment for murder. Before Judge Falligant. Chatham superior court. September 17, 1900.</p>

<p>Indictment for adultery and fornication. Before Judge Henry. Floyd superior court. September 22, 1900.</p>

<p>Certiorari. Before Judge Henry. Floyd superior court. March term, 1900.</p>

<p>1. Where a case went to trial on petition and answer, with no objection from either side as to the other’s pleadings, and at the close of the evidence the court, on motion of the defendant, directed a verdict in favor of the latter, the following assignment of error in a bill of exceptions, “plaintiff excepted to said ruling of the court, and now excepts and assigns the same as error,” necessarily means that the court erred in adjudging that the evidence demanded the verdict directed; and, thus interpreted, such assignment of error is sufficiently explicit and distinct.</p> <p>2. The only question, however, presented for decision here by such a bill of exceptions is whether or not the evidence, taken most favorably for the plaintiff, established the material allegations of his petition. Such a bill of exceptions in no event, however, brings under review the question whether or not upon the facts alleged the plaintiff was, as matter of law, entitled to a recovery.</p> <p>S. As there was, in the present instance, evidence warranting a finding that the plaintiff proved his case as laid, the direction of the verdict was erroneous.</p>

<p>Action on contract. Before Judge Reagan. Monroe superior court. February term, 1900.</p>

<p>Complaint for land. Before Judge Hart. Wilkinson superior court. April term, 1900.</p>

Petition for injunction. Before Judge Bennet: Ware county. September 25, 1900.

<p>Indictment for larceny. Before Judge Russell. Clarke' superior court. July 26, 1900.</p>

<p>Application for mandamus.</p>

<p>Certiorari. Before Judge Hart. "Walton superior court. August term, 1900.</p>

<p>Indictment for assault with intent to murder. Before Judge Bennet. Pierce superior court. May term, 1900.</p>

<p>Indictment for obtaining goods and money on false writing. Before Judge Henry. Eloyd superior court. September 17, 1900.</p>

<p>Indictment for murder. Before Judge Hart. Laurens superior court. September 17, 1900.</p>

<p>Indictment for murder. Before Judge Hart. Laurens superior ■court. September 17, 1900.</p>

<p>Indictment for gaming. Before Judge Nottingham. City court of Macon. September term, 1900.</p>

<p>Accusation of adultery and fornication. Before Judge Robinson. City court of Wrightsville. October term, 1900.</p>

<p>Accusation of malicious mischief. Before Judge Clark. City court of Forsyth. October term, 1900.</p>

<p>Complaint on note. Before Judge Fite. Murray superior court. August term, 1900.</p>

<p>Action for damages. Before Judge Henry. Walker superior-court. May 23, 1900.</p>

<p>Claim. Before Judge Janes. Haralson supgrior court. January term, 1900.- .</p>

<p>Complaint in trover. Before Judge Reagan. Pike superior court. October term, 1899.</p>

<p>Complaint. Before Judge Clark. City court of Forsyth. January term, 1900.</p>

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

<p>1. In a suit for the recovery of &.11 interest in land, where the defendants claim the entire ownership thereof under the will of a person, and introduce evidence tending to show that prior to the death of this testator the plaintiff had sold to him all interest she ever owned in the land, his death did not render the plaintiff incompetent as a witness to testify touching the transactions she had with the deceased in relation to a sale of the land in controversy ; for the defendants in such a case did not, under the evidence act, occupy the position of representatives of their testator simply because they held the land in dispute as legatees under his will.</p> <p>2. It was, therefore, in such a case, error to exclude the testimony of one of the plaintiffs, who was offered as a witness in her own behalf to testify as to transactions she had with the deceased in his lifetime touching the question as to whether she had sold to him the land in controversy. Because of this error, the judgment of the court below refusing a new trial as to this party plaintiff is reversed.</p> <p>3. The error above indicated not in anywise affecting the other party plaintiff in the present case, and there being, as to him, no error of law committed on the trial, and the evidence being amply sufficient to sustain, if not to demand, the verdict in favor of the defendants against this plaintiff, the judgment refusing a new trial as to him is affirmed.</p>

<p>Certiorari. Before Judge Reagan. Monroe superior court. February term, 1900.</p>

<p>Complaint. Before Judge Reagan. Monroe superior court. February term, 1900.</p>

<p>Complaint for land. ' Before Judge Reagan. Pike superior. court. April term, 1900.</p>

<p>Complaint. Before Judge Reagan. Pike superior court. April term, 1900.</p>

<p>1. When a policy of fire-insurance stipulated that it should cease to be of force in case of “a change of title or ownership of the” property insured, a conveyance by the insured to another rendered the policy ipso facto void.</p> <p>2. Where it was in such a policy also stipulated that the by-laws of the association by which the same was issued should be a part of the contract, and such by-laws specifically prescribed the manner in which all policies should be transferred, an attempted transfer of the policy in another and entirely different manner was ineffectual.</p> <p>3. Under the facts of the present case, the insurance association was not es-topped from setting up that the policy was void, and that the attempted transfer thereof was unavailing.</p>

<p>1. The court of ordinary is a court of general jurisdiction, and therefore it is presumed in favor of one of its judgments that every fact necessary to make it valid and binding upon the parties thereto and their privies was before the court.</p> <p>2. It follows from the foregoing that it is to be presumed in favor of a judgment of this court authorizing, upon the application of an administrator of a decedent’s estate, the sale of realty which had been set apart as a homestead under the constitution of 1868 to the decedent during his lifetime, that the court had before it evidence sufficient to authorize it to find that the sale of the property was necessary for the purpose of paying some debt-to which it was by law subject. Such a judgment is, therefore, binding upon all the parties to the proceeding in which it was rendered, and their privies, until reversed or set aside in the manner prescribed by law.</p>

<p>1. The fraud which, runner the provisions of section 3785 of the Civil Code, will relieve the bar of the statute of limitations must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action.</p> <p>2. One who aids and assists a trustee in misapplying trust funds, with knowledge of his misconduct, is directly accountable to the person injured by such misapplication, although the person thus assisting the trustee does not himself reap the fruits of the misappropriation but pays the fund over to another whom he represents.</p> <p>(a) In such a case the person injured by the misappropriation may bring a separate action against each of the persons through whose hands the fund has passed, or join them all in one suit.</p> <p>■(b) It is not necessary, in order to charge the person aiding and assisting the trustee in the misappropriation, to show that the trustee is insolvent.</p> <p>■(c) That the person injured by the misappropriation may have an action for money had and received, against the person to whom the fund was paid, will not preclude him from bringing an action against the person aiding the trustee in the misappropriation, for the tort thus committed.</p>

<p>1. When a garnishment is dissolved by the defendant under the provisions of sections 4718 and 4719 of the Civil Code, before a judgment can be entered against the defendant and the securities on the bond given to dissolve the garnishment it is necessary that there should be an answer filed by the garnishee, and a judgment on this answer, fixing the amount that would have been due to the defendant by the garnishee if the garnishment had not been dissolved, and adjudicating that the fund or property in the hands of the garnishee was subject to the process of garnishment.</p> <p>2. When a garnishment has been dissolved in the manner referred to in the preceding note, it is the duty of the garnishee to answer notwithstanding this fact; but the law does not authorize a judgment by default to be entered against the garnishee if he fails or refuses to answer.</p> <p>S. Is not a garnishee liable in such a case to be attached as for a contempt for a failure or refusal to answer ?</p>

<p>1. The vendor of land who retains title thereto for the purpose of securing the payment of the purchase-money can. not by injunction prevent the vendee from clearing the land and cutting the timber thereon, unless such acts impair the value of the vendor’s security.</p> <p>2. The evidence being conflicting upon this point, this court will not interfere with the discretion of the trial judge in finding that the value of the vendor’s, security was not lessened by the acts of the vendee.</p> <p>3. Congress has power to levy and collect taxes by requiring revenue stamps to be placed upon certain written instruments, and has power to prescribe a punishment for the failure or refusal to comply with that requirement, and to provide that such instruments shall not, unless stamped, be admissible as evidence in the Federal courts. It has, however, no power to prescribe rules of evidence for a State court, and, therefore, the act of Congress which declares that certain written instruments shall not be received in evidence in any court until stamped as required by the act is to be understood as applicable to the Federal courts only.</p>

<p>Action for damages. Before Judge Hart. Laurens superior court. July term, 1900.</p>

<p>Indictment for selling liquor. Before Judge Gober. Cobb superior court. August 8, 1900.</p>

<p>1. A deed to designated persons “ as incorporators ” of a named “ company ” which had not in fact been incorporated did not, upon the granting by a superior court of a charter to a company of like name and composed of these same persons, ipso facto operate to pass to such company the legal title to the property in the deed described.</p> <p>2. When an entry is made upon the docket of a justice’s court with the design of setting forth the terms of a judgment in favor of the plaintiff in an action upon a-promissory note, and such entry in no manner specifies any amount,' either as principal or interest, the same is void for uncertainty and there is no valid judgment. Merely placing certain figures with a dollar mark ($) prefixed thereto after the words “ suit on note ” in the statement of the case upon such docket does not indicate with absolute certainty the principal of the note sued on.</p> <p>3. A judgment is not void merely because it was rendered upon a contract infected with usury, nor is a sheriff’s deed executed in pursuance of a sale made under such a judgment tainted with the usury in the original cause of action.</p> <p>4. A constable may, after making an entry of nulla bona upon, a justice’s court execution issued outside of the county of his residence, lawfully levy the same upon land of the defendant in execution situated in that county, if the latter is a resident thereof when such entry is made, although there is upon the execution no entry of nulla bona by a constable of the county in which it was issued. It did not, in the present case, affirmatively appear that the defendant in execution was a non-resident of the county in which the. entry of nulla bona and the levy following the same were made.</p>

Levy and claim. Before Judge Harris. Meriwether superior •court. August term, 1900. In February, 1894, the Farmers Banking Company, for the use of the Georgia Railroad and Banking Company, obtained a judgment against Mrs. L. C. Key. The execution issuing therefrom was, in April, 1900,levied upon a one-fifth undivided interest in certain described lands, which was claimed by Mrs. L. C. Key as administratrix of the estate of J. G. W. Key, deceased.

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

<p>To constitute usury, it is essential that there be, at the time the contract is executed, an intent on the part of the lender to take or charge, for the use of money ¿a higher rate of interest than that allowed by law. There being in ' this case no evidence that any such intent existed in the mind of the plaintiff when the loan was made, the verdict finding the'contract to be usurious .was unwarranted, and consequently the trial court erred in not granting a new trial.</p>

<p>1. The only notice to which an ordinary is entitled with respect to a contest instituted under section 1546 of the Political Code is a notice “ of the filing of • the petition ” thereby authorized, and this notice must be given to him ten days before the term at which the hearing upon the petition is had.</p> <p>2. It is not essential to the validity of a contest so instituted that the petitioners should either allege or prove that the “ conduct of the ordinary ” thus brought under review was morally corrupt or fraudulent.</p> <p>3. A ballot cast at a given election by one whose name appeared upon the “ voters book ” should not be rejected from the count because the voter was not, at the time of signing his name in that book, entitled to do so, if prior to the election he removed his disqualification and lawfully procured the registrars to place his name upon the list of “ registered voters.”</p>

<p>Application for administration — appeal. Before Judge Evans, Laurens superior court. January 29, 1900.</p>

<p>Complaint. Before Judge Hart. Baldwin superior court. January term, 1900.</p>

<p>Action on insurance policy. Before Judge Evans. Laurens superior court. January term, 1900. •</p>

<p>Complaint. Before Judge Hart. Greene superior court. February term, 1900.</p>

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

<p>1. Assent to a devise of land may be presumed from evidence showing that ■ within a short period after the death of the testator, the devisee went into possession and so remained for a long period of years without interference or disturbance in any manner by the executor.</p> <p>2. A parol gift of land, without more, is ineffectual to pass title to the donee.</p>

<p>Equitable petition. Before Judge Butt. . Talbot superior court. September 15, 1899. ■</p>

<p>1. Where an action of ejectment was brought by a married woman in the superior court of the county wherein the land in dispute was situated, and the defendant relied upon a deed purporting to have been executed by her, and to convey the land to one under whom he claimed, it was the right of the plaintiff, without filing equitable pleadings for the cancellation of such deed, to attack the same as void on the ground that it was executed to the grantee therein named in pursuance of a scheme having for its object the sale of her land for the purpose of paying a debt due by her husband.</p> <p>2. It would not in such a case have been proper to compel the plaintiff to file such equitable pleadings, nor was it erroneous to disallow a plea to the jurisdiction, alleging that the.defendant resided in another county, and based upon the theory that such pleadings were indispensable, and that upon the filing thereof the action would become an “ equity case,” and, therefore, maintainable only in the county last indicated.</p> <p>3. Several grounds of the motion for a new trial alleging error in rejecting testimony are defective, in that they do not set forth what the testimony thus referred to was; there was no material error in admitting evidence; the requests to charge, so far as legal and pertinent, were sufficiently covered by the general charge; the charges complained of were substantially correct, and the charge as a whole fairly submitted the issues involved ; the evidence warranted the verdict, and there was no error in denying a new trial.</p>

<p>1. When in a trial for morder the accused denied that he inflicted upon the deceased the alleged mortal wound, and also that the death of the latter was in fact thereby caused, it was not proper for the court to charge, in effect, that if the accused did inflict such wound, and if it caused the death, it was a case of murder.</p> <p>2. It was, in such a trial, erroneous to charge in substance that the testimony of an expert witness was entitled to great weight. The error committed by so charging in the present case was prejudicial to the accused, and, in consequence, there should be a new trial.</p>

<p>Motion to arrest judgment. Before Judge Littlejohn. Stewart superior court. October 19, 1900.</p>

<p>Action for damages. Before Judge Reagan. Monroe superior court. February term, 1900.</p>

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

<p>■« An administrator can not sell property held adversely to the estate by a third person; he must first recover possession. ’ ’ Hence, in an action for the recovery of land, where it was necessary for the plaintiff to rely upon a deed to such land made in pursuance of an administrator’s sale of the same, and it clearly appeared from the evidence that, at the time of such sale, a considerable portion of the land sued for, and claimed under this deed, was held adversely to the estate of the intestate by a third person, a verdict in favor of the plaintiff for the premises in dispute was contrary to the evidence and to law.</p>

<p>Action on bond. Before Judge Clark. City court of Forsyth. July term, 1900.</p>

<p>Action for damages. Before Judge Clark. City court of Forsyth. July term, 1900.</p>

<p>Levy and claim. Before Judge Hart. Morgan superior court, March term, 1900.</p>

<p>Action for damages. Before Judge Evans. Morgan superior-court. September term, 1899.</p>

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

<p>Complaint for land. Before Judge Hart. Greene superior court. February term, 1900.</p>

<p>Affidavit for levy. Before Judge Hart. Laurens superior court. July term, 1900.</p>

<p>The granting by municipal authorities of a license to sell intoxicating liquors is not reviewable at the instance of a citizen and taxpayer who undertakes, as such, to sue out a certiorari for this purpose, when there is no provision of law authorizing him to contest the granting of such license or to become in any manner a party to the application therefor presented to the municipal body.</p>

<p>1. Evidence showing merely that a paper purporting to be a deed was signed by the alleged maker thereof, with no proof of delivery, is not sufficient to authorize the introduction of secondary evidence of the contents of the instrument.</p> <p>2. A widow’s right to a year’s support out o'f the estate of- her deceased husband is not lost because for some time previous to his death they lived in a state of separation.</p> <p>.3. A request to charge which negatived the right of a father to appropriate to himself the earnings of his minor children, who had not been manumitted by him, was properly refused.</p> <p>4. When there is no motion for a new trial, an erroneous or inapt charge to the jury which did not necessarily control their verdict against the plaintiff in error will not be treated by this court as affording cause for reversing the judgment of the court below.</p> <p>■5. Mere inaccuracy of description in one or more particulars with respect to land mentioned in a return made by commissioners appointed to set apart a year’s support will not vitiate such return, if, from other descriptive terms therein employed, the identity of the premises actually intended to be set apart can with reasonable certainty be ascertained.</p>

<p>1. A petition for the cancellation of an instrument purporting to be a deed,' averring that at the time of its execution the alleged maker was non compos mentis and totally incapable of contracting, is neither strengthened nor, as to the real gravamen thereof, materially affected by an additional allegation that the person named in the instrument as grantee procured its execution “by false and fraudulent means and artful practices.” While such an allegation •may be open to the objection that it is irrelevant, it does not render the petition subject to a special demurrer calling upon the plaintiff to set forth the particular acts constituting the alleged fraud.</p> <p>2. The doctrine that a deed obtained by fraud is not void ab initio, but only voidable at the election of the grantor, has no application in the trial of such a petition, brought after the grantor’s death, wherein it is alleged that he was insane when the paper was executed and so remained until he died.</p> <p>3. A grantee in a deed against whom a petition for the cancellation /thereof is brought by an heir at law of the grantor is not, because of the fact that such grantor is dead, disqualified from testifying as to communications and transactions between the deceased and the witness leading up to the execution of the instrument.</p>

<p>A memorandum relied upon to take out of the statute of frauds a contract thereby required to be in writing must in some way indicate or show who are the parties to such contract, “ not only who is the promisor, but who is the promisee as well.” ,</p>

<p>Complaint. Before Judge Willis. City court of Columbus.. July term, 1900.</p>

<p>1. A ground of a motion for a new.trial, complaining of alleged error in admitting evidence, can not be considered by this court when it does not appear - from the assignment of error in the motion what objection was made by the movant to the introduction of the evidence.</p> <p>2. The verdict was not contrary to the evidence.</p>

<p>Petition for certiorari. Before Judge Sheffield. Clay superior ■court. May 25, 1900.</p>

<p>Action for breach of warranty. Before Judge Sheffield. Quit-man superior court. September term, 1899.</p>

Indictment for murder. Before Judge Butt. Muscogee superior court. May term, 1900. From the evidence it appeared that for some weeks preceding tbe homicide there was bad feeling between Chestnut, the accused, and Walsh, the person killed, and that each had threatened to kill the other. On the evening of the homicide they met near a barroom, and Chestnut invited Walsh and others to go in and drink with him, and they did so.

<p>Action on contract. Before Judge Sheffield. Clay superior court. March term, 1900.</p>

<p>Indictment for cheating and swindling. Before Judge Janes. Douglas superior court. September 10, 1900.</p>

<p>Indictment for murder. Before Judge Russell. Franklin superior court. October 8, 1900.</p>

<p>Complaint. Before Judge Hart. Greene superior court. July 21, 1900.</p>

This was an application to the Supreme Court by Mrs. Sears, as next friend of Baker, for a mandamus to require the judge of the superior court to certify the bill of exceptions in the case of Sears v. State, reported infra. The reasons stated by the judge for refusing to certify are those given for the decision there excepted to.

<p>1. When a practicing physician has made an affidavit that a person who has heen convicted in a superior court of this State for the crime of murder, and has been sentenced hy the judge of that court to he hanged, has heen hy affiant examined since the sentence and conviction, and discovered to he, at the time of the examination and of making his affidavit, insane and in such'mental condition .that the question of his sanity should he tried before a jury under the terms of the law, and when this affidavit has heen duly presented to the judge for the purpose of procuring a trial on the question of the sanity of such a convict hy the superior court of the county in which he has been sentenced, it is the imperative duty of the judge to order such trial, and to have a jury empanelled, as provided hy the statute, for the determination of this question.</p> <p>'2. The fact that after this conviction and sentence of the accused a motion for a new trial was made in his behalf before the judge of the superior court, on the ground that he was insane at the time of the alleged commission of the crime and at the time of his trial, and that the judge overruled this motion after a hearing on the same, which judgment was affirmed by this court, does not operate as an estoppel or bar to a proceeding afterwards instituted in behalf of the convict for a trial before a jury on the question of his insanity under the provisions of the act of the General Assembly approved December 21,1897 , (Acts of 1897, pp. 4L43).</p> <p>.3. The affidavits of the physicians in the present case were a compliance with the principles of law above specified; and the judge below, therefore, erred in refusing to grant the convict a trial before a jury on the question of his sanity.</p> <p>Lumpkin, P. J., and Pish, J., dissenting. 1. There can be no lawful inquisition under section 1047 of the Penal Code, as amended by the act of December 21, 1897, into the mental condition of a convict who has been “ sentenced to the punishment of death,” except upon a petition to the superior court.</p> <p>2. Such a petition is fatally defective unless it affirmatively alleges that the convict became insane after having been so sentenced.</p>

<p>1. An indictment which charges that the accused was intrusted with money “for the use and benefit of” a named person, and fraudulently converted the same to his own use, is á good indictment under Penal Code, § 194, although it further charges that the conversion was “to jhe injury and without the consent of ” the person so named, and does not in this connection allege “ that any demand was made for the money.”</p> <p>2. An indictment alleging that the accused was by the prosecutor “ intrusted with one five-dollar bill, lawful money, of the value of five dollars, . . for the use and benefit of ” the prosecutor, is not open to demurrer on the ground that the trust is not sufficiently set out.</p> <p>3. It is not incumbent on a trial judge, after distinctly informing the jury that the accused is charged with having committed the offense in question in the county named in the indictment, that he pleads “not guilty,” and that this makes the issue to be tried, to state, in connection with each legal proposition laid down for the guidance of the jury, that it must appear that the offense was committed in that county.</p> <p>4. A correct statement of law embraced in a charge to a jury is not in and of itself erroneous because the court failed in the same connection to give to the jury some other pertinent legal proposition.</p> <p>5. A charge in these words : “ The defendant has introduced some evidence as to his good character. That is a matter that you can consider, along with the other evidence in the case, in determining whether or not the defendant be guilty, or not guilty,” was not erroneous, either because of the use of the word “ some,” or because the court did not more particularly instruct the jury with reference to the law of good character.</p> <p>6. Evidence authorizing a finding that the accused was in a particular county intrusted with money, and that he thereafter fraudulently converted the same to his own use, is sufficient to warrant a finding that the conversion took place in that county, when there is no evidence showing that he ever left the county, or tending to establish the fact that the conversion was made beyond its limits.</p> <p>7. The evidence was sufficient to warrant the verdict, and there was no error in denying a new trial.</p>

<p>Application for rehearing.</p>

<p>1. Where in a criminal case the jury returns a verdict of guilty, the accused may, as matter of right, demand that the jury be polled before the verdict is recorded. In response to such demand, made at the proper time, each juror should be questioned individually and separately as to his agreement to the verdict; and it is not sufficient to question-the jurors collectively and in concert, although each and all express their assent to the verdict.</p> <p>2. One charged with selling intoxicating liquors without license can not be convicted on proof merely that by his consent, on his premises, and in'his presence, whisky was illegally sold by another.</p>

<p>Accusation of assault and battery. Before Judge Bishop. City court of Eastman. October term, 1900.</p>

<p>Indictment for misdemeanor. Before Judge Fite. Gordon superior court. October 29, 1900.</p>

<p>Indictment for carrying concealed weapon. Before Judge Fite. Gordon superior court. October 29, 1900.</p>

Indictment for robbery. Before Judge Janes', superior court. ' October 30, 1900. Douglas G. H. Thompson, driving home in his buggy about eight o’clock at night, was stopped by two men in the road, knocked senseless, and robbed of his money. At the trial of George Suddeth for this offense, Calvin Hunter appeared as a witness for the State, and testified, in substance, that Suddeth committed the crime in his presence but without his participation.

<p>Certiorari. Before Judge Smith. Dodge superior court. November 5, 1900.</p>

<p>Certiorari. Before Judge Evans. Tattnall superior court. October term, 1900.</p>

<p>Complaint. Before Judge Reece. City court of Floyd county.. August 24, 1900.</p>

<p>Complaint for land. Before Judge Reagan. Pike superior court. May 5, 1900.</p>

<p>1. While a hill of exceptions will lie in a case which is still pending helow, “ when the decision or judgment complained of, if it had heen rendered as claimed hy the plaintiff in error, would have heen a final disposition of the cause, or final as to some material party thereto,” the plaintiff in error in such a bill of exceptions can not thereby properly bring ¡to this court for review interlocutory rulings or decisions made during the progress of the case in the trial court.</p> <p>2. The Supreme Court will not grant an application for leave to file in the court-below, as exceptions pendente lite, a copy of an original bill of exceptions, when due attention to the settled rules of practice would have rendered it-unnecessary to ask for such leave ; nor will such an application be granted, in any case when not presented to this court until after it has announced, its judgment therein.</p>

<p>Complaint. Before Judge Butt. Marion superior court. April term, 1900.</p>

<p>Persons who had while minors been the beneficiaries of a homestead in land which had been set apart on the application of their father as the head of a family, and who after his death claimed an interest in the land as his heirs at law, are concluded by their own deed, executed after they had arrived at majority, by which they conveyed all their interest in the exempted land to another.</p>

<p>Complaint for land. Before Judge Littlejohn. Dooly superior' court. August term, 1899.</p>

<p>Foreclosure of mortgage. Before Judge Littlejohn. Sumter1 superior court. November term, 1899.</p>

<p>Complaint. Before Judge Littlejohn. Dooly superior court. September term, 1899.</p>

<p>Levy and claim. Before Judge Littlejohn. Sumter superior ■court. May term, 1900.</p>

<p>1. In an action on an award a petition is sufficient, as against a general demurrer, which alleges the existence of differences between the plaintiff and defendant, an agreement to submit the matters in dispute to arbitration, that the submission was mutual, setting forth the substance of the same, that the award was made in pursuance of the submission and conformed to the same in all material respects, that it was made within the time limited, if there was such time, and with the formality required by>the submission, and that the defendant has failed to perform it.</p> <p>2. Where in such a suit it is alleged that under the contract between the parties-the arbitration was to be had and was actually had in conformity to the rules-of a named association, the method prescribed by such rules being set forth ■ in substance, the rules themselves need not be literally set forth in the petition or attached thereto as an exhibit. Nor is it necessary that a copy of the award should be attached as an exhibit to the petition, the substance of the award being set out therein.</p> <p>3. In an action on an award it is not necessary to set forth the evidence on which the award was based.</p> <p>4. Under section 4589 of the Civil Code, a party desiring to file exceptions to an auditor’s report must file the same within twenty days after the report is filed and written notice thereof given by the auditor to him or his counsel. A written notice signed by the auditor, deposited in the mail, directed to counsel at his place of business, and actually delivered there to his clerk, is a sufficient compliance with the statute; more especially, when such clerk also received from the auditor verbal notice of the filing of his report. The law contained in the section just cited is mandatory, and makes no exception in favor of a person who is prevented by providential cause from filing his exceptions within the time prescribed.</p> <p>5. A motion to recommit an auditor’s report for any of the reasons set forth in> section 4593 of the Civil Code is in its essence an exception to the report; and where the report is sufficiently full and definite to enable a judgment to-be entered up thereon, any defect therein must be taken advantage of by exceptions filed within twenty days after the filing of the report and notice given.</p>

<p>1. A duly certified abstract from the book of minutes of a business corporation of this State is, upon compliance with the law embraced in the Civil Code, § 5236, admissible in evidence in lieu of the book itself.</p> <p>2. When evidence is objected to as a whole on a specified ground, and some of it is not open to that objection, admitting it all is not cause for a new trial.</p> <p>3. Though a member of a building and loan association, which has the power to amend its by-laws, may, at the time of subscribing for stock therein, apply for an advance upon the same, yet if the advance be not in fact made until a later period, and in the meantime the by-laws are duly changed, a contract signed by such member on the date of receiving the advance, by the terms of which the by-laws of the association are made a part thereof, must be treated as referring to the by-laws as they stood on that date; and this is so ‘whether such member actually knew of the change or not.</p> <p>4. The foregoing notes deal with all the assignments of error which sufficiently present any question for decision by this court; and it does not appear that in directing the verdict, to which exception is taken by the defendant below, any error of which he can justly complain was committed.</p>

<p>Injunction and receiver. Before Judge Littlejohn. Sumter county. July 9, 1900.</p>

<p>1. A paper purely testamentary in character, which was neither duly ■ executed as a will nor admitted to probate as such, passed no title to property therein described, but was a mere nullity.</p> <p>2. A charge which in dealing with such a paper embraced instructions warranting the jury in treating the same as a muniment of title was erroneous.</p>

<p>Ejectment. Before Judge Spence. Decatur superior court. February 27, 1900.</p>

<p>A provision in a special act approved December 20, 1899, creating a new charter for a designated city of more than two thousand inhabitants, that the board of water and electric light commissioners therein provided for should consist, in part, of two members of the city council, elected by the mayor and council, is unconstitutional and void, because in conflict with the general law contained in section 739 of the Political Code, although on December.21, 1899, that section was amended by providing that nothing therein contained “ shall be construed as repealing any provisions to the contrary [thereof] in any charter of any city or town in this State.” This is true notwithstanding the fact that such special act provided that the charter should not take effect until it had been submitted to and ratified by a vote of the qualified electors of the city.</p>

<p>The petition as amended set forth a cause of action, and should not have been dismissed upon the demurrers filed thereto.</p>

<p>Scire facias to forfeit recognizance. Before Judge Dart. City court of Douglas. May term, 1900.</p>

<p>Motion to set aside judgment. Before Judge Sparks. City court of Brunswick. March 5, 1900.</p>

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

<p>Trover. Before Judge Littlejohn. Stewart superior court. April term, 1900.</p>

<p>Foreclosure of mortgage. Before Judge Littlejohn. Sumter superior court. November term, 1899.</p>

<p>Trover. Before Judge Littlejohn. Sumter superior court. May term, 1900.</p>

<p>To constitute a valid gift of a chattel, there must he not'only an intention to . give hy.the donor, hut a, delivery of the article given, or some act done which will he accepted as delivery.</p>

<p>Affidavit of illegality. Before Judge Spence. Calhoun superior court. December term, 1899.</p>

<p>Action for damages. Before Judge Hobbs. City court of Albany. March 29, 1900.</p>

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

<p>1. When the defense to an action against a railway company for the destruction of property by fire alleged to have been set out by sparks from a locomotive was, not only that the company did not cause the fire in question, but also that its machinery and appliances were in good order and operated with due diligence, and there was evidence supporting both branches of such defense, it was erroneous to give to the jury an instruction which in effect made the question of liability turn exclusively upon whether or not the company in fact caused the fire.</p> <p>2. The charge excepted to in this case had the vice above indicated, and the error therein was not cured by the addition which the court made to the same.</p>

Complaint. Before Judge Bennet. Brooks superior court. January 22, 1900.

<p>Equitable petition. Before Judge Hansell. Colquitt superior court. April term, 1900.</p>

<p>Injunction. Before Judge Hansel! Thomas superior court. November 2, 1900.</p>

<p>Attachment. Before Judge Smith. Pulaski superior court, February term, 1900.</p>

<p>1. When in a proceeding instituted to recover land, and damages for a trespass thereon, each of tire parties stands upon the proposition that he has a legal title to the land, it is error for the trial judge to charge the jury: “ If you should find that there has been no claim made for a great lapse of time since the death of the grantee, and a great number of years has elapsed since the death of the grantee before bringing suit, the law would presume that the property of the deceased, to which plaintiffs claim title, had been disposed of, or that it had been abandoned; . . and if you believe that the suit is a stale one, then you might find for the defendant.”</p> <p>2. If it appears that a case which is being tried was instituted, and is being carried on, under a champertous contract between the plaintiff and his attorney as to the fees of the latter for the institution and prosecution of the case, this does not authorize a charge that the plaintiff is not entitled to recover. The contract which is obnoxious to public policy and which can not be enforced under the statute is that which is affected with the champerty ; but the prohibition does not apply to a pending cause of action which by a champertous contract the attorney agreed to prosecute.</p>

<p>Petition for scire facias. Before Judge Smith. Montgomery .superior court. April term, 1900.</p>

<p>1. The petition set forth a cause of action as against a general demurrer, and was not subject to any of the objections made in the special demurrer.</p> <p>2. A suit brought against an administrator for the purpose of cancelling a deed made to his intestate is not “ a suit to recover a debt due by the decedent,” and consequently may be brought before the expiration of twelve months from the qualification of the administrator.</p>

<p>1. This court can not consider a ground of a motion for new trial which com- 112 4.91) plains of the admission of evidence but which does not set forth such evi- Ju^eial dence, either literally or in substance.</p> <p>2. The evidence demanded the verdict, and there was no error in so directing.</p>

<p>Affidavit of illegality. Before Judge Williams. City court of Waycross. March term, 1900.</p>

<p>1. It is not essential to the admissibility in evidence of a judgment setting apart a year’s support that the party offering it should produce a transcript of the proceedings in the court of ordinary leading up to it.</p> <p>2. When by such a judgment it appears, in general terms, that the whole of the property of the decedent was thus set apart, any competent evidence is admissible to apply the judgment to its subject-matter.</p> <p>3. Where petitioners seek, as heirs at law of a named decedent, to have lands which he owned at the time of his death partitioned between themselves and others, a complete defense to such action is made out when it is shown that, after the death of the owner of the lands, they were duly set apart to his widow and minor child as a year’s support.</p> <p>(а) Property duly set apart to the widow and minor child of an intestate, as a year’s support, vests in them, and the heirs at law of the intestate no longer have any interest therein.</p> <p>(б) It is not necessary for the widow to obtain authority from the ordinary in order to sell property set apart to her and a minor child as a year’s support.</p> <p>4. When a homestead is covered by a year’s support, the lesser estate is merged in the greater, and the title of the beneficiaries of the homestead becomes absolute.</p> <p>5. A verdict for the defendants being demanded by the evidence, there was no error in directing one in their favor.</p>

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

<p>Appeal. Before Judge Littlejobn. Sumter superior court. November term, 1899.</p>

<p>1. One who in selling out a given business and the “ good-will ” thereof contracted with the purchaser not to engage for a designated period in such a business in a named city could not, without violating his contract, carry on in that city, during the period covered by the agreement, a similar business for another or in another name, of which he was the exclusive manager, and the success of which depended entirely upon his skill, efficiency, personal reputation, and popularity. The more especially is this so if the arrangement to carry on the business as above was a mere pretext to cover a violation • of the original contract.</p> <p>2. Under the facts disclosed by the record, there was no abuse of discretion in allowing the plaintiffs to amend their petition by withdrawing their waiver of discovery and praying for discovery in answer to specific interrogatories propounded to the defendant, and pertinent to the issue involved; nor did the court, for any reason alleged, err in granting the injunction.</p>

<p>1. A city court has no jurisdiction to entertain an appeal from a justice’s court.</p> <p>2. When a trial court, in a case over which it has, as to subject-matter, no jurisdiction, renders therein any judgment except one of dismissal, this court will reverse the same whether exception to it for want of jurisdiction in the court below be taken in the bill of exceptions or not.</p>

<p>Ejectment. Before Judge Sheffield. Colquitt superior court.</p>

<p>Action for damages. Before Judge Smith. Pulaski superior court.- February 2, 1900.</p>

<p>Trover. Before Judge Smith. Montgomery superior court. April term, 1900.</p>

<p>Foreclosure of lien. Before Judge Bishop. City court of Eastman. April term, 1900.</p>

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

<p>Levy and claim. Before Judge Smith. Twiggs superior court. June 18, 1900.</p>

<p>Action on foreign judgment. Before Judge Smith. Pulaski superior court. August term, 1900.</p>

<p>Injunction. Before Judge Smith. Pulaski county. October 5, 1900.</p>

<p>1. Under the act creating the city court of Baxley and the amendment thereto, the judge of that court has no right or 'jurisdiction to try and dispose of a case at the first term, where the amount involved exceeds .$100.</p> <p>2. A suit in such court for $100 principal, besides interest at eight per cent, per annum from a certain date prior to the date suit was brought, involves an amount greater than $100.</p> <p>3. Where the maker of such a note agreed therein to pay ten per cent, attorney’s fees, and a copy of the note was attached as an exhibit to the petition, it was error to refuse an amendment to the petition, claiming such attorney’s fees in addition to the principal of the note and interest thereon.</p>

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

<p>Levy and claim. Before Judge Williams. City court of Way-cross. May 5, 1900.</p>

<p>Levy and claim. Before Judge Bennet. Ware superior court. April term, 1900.</p>

<p>Complaint. Before Judge Dart. City court of Douglas. July 19, 1900.</p>

<p>Action on insurance policy. Before Judge Bennet. Ware superior court. April term, 1900.</p>

<p>Trover. Before Judge Williams. City court of Wayeross. August 15, 1900.</p>

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

<p>An affidavit charging specifically the offense of “ selling whiskey” is not, under the act establishing the city court of Brunswick, broad enough to support an accusation charging generally the sale of “intoxicating liquors.”</p>

<p>Indictment for murder. Before Judge Harris. Meriwether superior court. December 4, 1900.</p>

<p>Indictment for murder. Before Judge Reese. Oglethorpe superior court. December 3, 1900.</p>

<p>Motion to reinstate.</p>

<p>Indictment for burglary. Before Judge Felton. Bibb superior court. December 20, 1900.</p>

<p>Indictment for attempt of burglary. Before Judge Henry. Floyd superior court. December 18, 1900.</p>

<p>Indictment for assault with intent to murder. Before Judge Felton. Bibb superior court. December 27, 1900.</p>

<p>Indictment for murder. Before Judge Spence. Worth superior court. January 1, 1901.</p>

<p>Under the code of this State a temporary administrator has no power or authority to institute and maintain an action to recover land alleged to belong to the estate he represents.</p>

<p>1. A member of a mutual insurance order may, when acting in good faith, legally’ designate, as the beneficiary in a certificate of life-insurance issued by the order, one who has no insurable interest in the life of the member, provided-there be, at the time the certificate is issued, no restriction in the charter, constitution, or laws of the order, or in the statutes of the State, forbidding the right to appoint such a beneficiary. Lumpkin, P. J., dissenting.</p> <p>2. Although the application and certificate both stipulate that the right of the member to participate in the benefit fund is expressly conditioned upon his compliance with all the laws, regulations, and requirements which are or may be enacted by the order, a by-law enacted subsequently to the issuance of the certificate will be given a prospective operation, in the absence of a clear intent that it shall act retrospectively.</p> <p>3. To render an insurance company liable for attorney’s fees under the provisions of section 2140 of the Civil Code, a demand and a refusal to pay, sixty days before suit is brought, must be plainly averred and the truth of such averment must be established on the trial. No such demand and refusal being averred and proved in the present case, the recovery of attorney’s fees was not authorized.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. December 11, 1899.</p>

<p>Appeal. Before Judge Candler. DeKalb superior court. March 30, 1900.</p>

<p>1. When the levy of an execution is resisted upon the ground that the property levied upon has been set apart as a homestead, and, as authority for the levy, the levying creditor relies upon a waiver by the debtor of his right to have the homestead set apart, it is incumbent upon the creditor, if the existence of the homestead estate has been proved, to show affirmatively that the waiver of the homestead antedated the setting apart of the same.</p> <p>2. The mere fact that a minor who is the sole beneficiary of a homestead estate does not live upon thé property, and leaves the head of the family to use the proceeds of the same in such a way as he desires for a period of ten years, without calling him to account, does not cause the homestead estate to terminate and become subject to levy and sale as the property of the head of the family.</p> <p>3. Plaintiffs in error who bring cases to this court upon pauper affidavits are not altogether relieved from liability for the costs, but are simply permitted to have their cases heal’d without the payment of costs as a condition precedent. It follows that, when a judgment of reversal is entered in a case brought to this court on pauper affidavit, it is the duty of the clerk of this court to tax the costs in the case and enter the same on the remittitur. When the remittitur is received in the court below, it is the duty of the officers of that court to enter judgment against the defendant in error for the costs that have accrued in this court, and to see that these costs are collected and remitted to the clerk of this court.</p>

<p>Injunction. Before Judge Gober. Pickens superior court. August 14, 1900.</p>

<p>Indictment for selling liquor. Before Judge Reagan. Butts superior court. November 16, 1900.</p>

<p>Indictment for burglary. Before Judge Reagan. Butts superior court. December 21, 1900.</p>

<p>Indictment for burglary. Before Judge Felton. Bibb superior court. December 27, 1900.</p>

<p>1. The provisions of the act of November 23,1895, now contained in section 2110 of the Civil Code, are applicable to contracts for fire-insurance made by a purely mutual fire-insurance company.</p> <p>2. The amendment to the charter of the Southern Mutual Insurance Company, enacted November 23, 1866, was not -the granting of a new charter to the company, and really did not make any material or substantial amendment to the original charter.</p> <p>3. The provision in the charter of the company, which was granted in 1847, so restricting the company that it can not insure property for more than three fourths of its value, was neither literally nor in substance an inviolable contract between the State and the company, to the effect that the latter should never, by reason of subsequent legislation, be made liable for the full value of property insured under one of its policies.</p> <p>4. As the act of November 23, 1895, applies to purely mutual fire-insurance companies, the policy-holders of such a company, present at an annual meeting of the policy-holders, can not by passing a resolution, waiving and renouncing the benefits of the act and instructing the officers and directors of the company to disregard it in making contracts of insurance for the company, prevent the act from operating upon such contracts made by the company.</p> <p>5. The fact that a policy-holder in a mutual fire-insurance company, after the passage of the act of November 23, 1895, received dividends upon policies held by him in the company, which dividends were larger than they otherwise would have been, because the provisions of this act were ignored in settlements made by the company with other policy-holders for losses sustained under policies held by them, did not, after he had sustained a loss covered by his policy, estop him from insisting upon the application of the provisions of that act to the contract between the company and himself.</p> <p>Cobb, J., dissenting. 1. The charter of the Southern Mutual Insurance Company, as granted in 1847 (Acts 1847, p. 126), and as amended in 1849 (Acts 1849, p. 265) and 1856 (Acts 1855-6, p. 477), contains a contract between the State and the corporation, by the terms of which the company was guaranteed the right to carry on the business of fire-insurance in such amanner that the amount to be paid the insured in case of loss was not to be determined' until after the loss had occurred, and the sum to be paid was in no event to exceed three fourths of the actual value of the property destroyed.</p> <p>2. The act of 1895 (Civil Code, §2110), when applied to the transactions of the company above named, having the effect of requiring the company to determine in advance what amounts should be paid to the insured in cases of loss, and also of requiring the payment to the insured of more than.three fourths of the value of the property destroyed, if the amount stated in the policy exceeds that sum, and in any event having the effect of substantially changing the plan of business and method of operation provided by the charter, impairs the obligation of the contracts contained in the charter, and is therefore, as to the affairs of that company, inoperative.</p> <p>3. The amendment to Hie charter passed in 1866 (Acts 1866, p. 80) was not the grant of a new charter to the company, and the acceptance of such amendment did not bring the company within the provisions of section 1682 of the Code of 1863, which declared: “In all cases of private charters hereafter granted, the State reserves the right to withdraw the franchise, unless such right is expressly negatived in the charter.” Civil Code, § 1880.</p>

<p>A petition alleging that the plaintiff was an employee of the defendant, and, as such, sustained personal injuries through the defendant’s negligence, while engaged in the work he was employed to do, is not sustained hy evidence showing that the relation of master and servant did not exist between these parties, and that the plaintiff was really the servant of another person and was doing the work in question under his employment hy that person.</p>

<p>1. An allegation in a petition, “ that the store or place of business of plaintiffs is situated on ” a named street, is, as against a general demurrer, a sufficient allegation of ownership by the plaintiffs of the store thus mentioned; but, whether owner or tenant of given premises, the person in possession may recover for a tortious interference with his business therein conducted.</p> <p>2. Although the duty of keeping public streets in order primarily devolves upon the municipal authorities, one who wilfully and without any authority whatever obstructs a public street so as to interfere with passage over the same is liable to any person who in consequence sustains special damage.</p> <p>3. Illegally obstructing a public street so as to prevent the customers of a merchant from using the same as a means of access to his store, and continuing the obstruction a sufficient length of time to work injury or damage to the merchant’s business, is inflicting upon him a special wrong not shared in by the public at large, for which he is entitled to maintain an action.</p>

<p>Motion to enter judgment. Before Judge Bennet. Pierce superior court. July 14, 1900.</p>

<p>Petition for direction, etc. Before Judge Lumpkin. Fulton superior court. February 6, 1900.</p>

<p>Exceptions to auditor’s report. Before Judge Lumpkin. Fulton superior court. January 8, 1900.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. March 31, 1900.</p>

<p>Exceptions to auditor’s report. Before Judge Lumpkin. Eulton superior court. April 5, 1900.</p>

<p>The only issue which can he properly raised hy an answer to a petition for scire facias to make a party defendant to a pending case is whether or not the respondent is a proper party to the cause; and, consequently, an answer to such a petition, which alleged no reason why the respondent was not a proper party, hut merely set up various reasons why judgment should not he rendered against him after he had heen made a party, presented no reason why the petition for scire facias should not he granted.</p>

Complaint. Before Judge Beid. City court of Atlanta. May 10, 1900. The following is a recital of the testimony which was offered and excluded: The plaintiffs, a firm composed of Weinberger and ■ Laux, were engaged in the business of fruit and produce brokers, commission merchants and dealers in fruit and produce.

<p>Exceptions to auditor’s report. Before Judge Lumpkin. Fulton superior court. January 15, 1900.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. April 14, 1900.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. May 18, 1900.</p>

<p>A promissory note by its terms maturing at a date subsequent to the institution of an action upon it and others of a series, and containing a stipulation that if the others are not paid at maturity such note shall at once become due, is not an unconditional'contract, and no judgment can be lawfully rendered thereon by the court without the intervention of a jury.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. June 23, 1900.</p>

<p>Indictment for larceny after trust. Before Judge Henry. Floyd superior court. January 8, 1901.</p>

<p>Probate of will — appeal. Before Judge Reagan. Pike superior court. May 25, 1900.</p>

<p>The remedy of resisting hy an affidavit of illegality a levy upon property is open only to one who is a defendant in the execution levied, and not then unless the property levied on is seized as his property.</p>

<p>Levy and claim. Before Judge Smith. Dodge superior court. March 3, 1900.</p>

<p>Forfeiture of recognizance — certiorari. Before Judge Spence. Decatur superior court. May 25, 1900.</p>

<p>1. The statutory liability for “ double rent,” incurred by a tenant for unlawfully withholding from a landlord the possession of rented premises, is not a demand arising ex contractu. The provision in § 4817 of the Civil Code, that judgment shall go against’ such a tenant “ for double the rent reserved or stipulated to be paid,” relates merely to the measure of the amount for which the tenant shall be liable, and does not characterize the landlord’s demand for double rent during the period of unlawful detention as a debt springing out of the original contractual relation.</p> <p>2. A demand of the nature above indicated is not provable in bankruptcy, and therefore the right of a landlord to proceed with a dispossessory warrant, and as an incident thereto to obtain a judgment for double rent, is not affected by the tenant’s discharge in bankruptcy obtained during the pendency of the dispossessory proceeding.</p> <p>3. There was in the present case, as to all disputed issues, sufficient evidence to warrant the verdict which the jury returned in the plaintiff’s favor, and there was no error in denying a new trial.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. April 7, 1900.</p>

<p>Complaint — certiorari. Before Judge Lumpkin. Fulton superior court. 5, 1900.</p>

<p>Complaint — certiorari. Before Judge Lumpkin. Fulton superior court. January 26, 1900.</p>

<p>1. Improper conduct on the part of counsel in making an unauthorized statement of fact in the hearing of the jury is not to be corrected by “ruling out” the statement, but by instructing the jury to disregard the same, or by declaring a mistrial if, on account of the grossness or seriousness of the impropriety, the ends of justice so require.</p> <p>2. Though the petition of a husband in an action for the loss of his wife’s services, occasioned by personal injuries tortiously caused, may not allege that a particular physical infirmity resulted from such injuries, proof thereof may be received if, during the progress of the trial, the same becomes collaterally pertinent.</p> <p>3. Overruling an objection made generally to specified evidence is in no event cause for reversing a judgment, unless it appears that the objection was good as to all of such evidence.</p> <p>4. When, in the trial of such an action, there was evidence to warrant a finding that the injuries of the wife were permanent, the mortality and annuity tables were properly admitted in evidence.</p> <p>5. There was no error in rejecting or in admitting evidence; it does not appear that the verdict was excessive or unwarranted, and there was no error in denying a new trial.</p>

<p>Appeal. Before Judge Lumpkin. Fulton superior court. January 12, 1900.</p>

<p>Action for damages. Before Judge Calboun. City court of Atlanta. March 27, 1900.</p>

<p>Action for damages. Before Judge Beid. City court of Atlanta. May 16, 1900.</p>

<p>Money rule. Before Judge Lumpkin. Fulton superior court. June 27, 1900.</p>

<p>1. The action in the present case was one upon bank checks, and not a common-law action for money had and received.</p> <p>2. By the execution and delivery of an ordinary check the drawer contracts with the payee that the bank will pay to the latter or his order the amount designated, on presentation. Being a simple contract in writing, the limitation prescribed by the statute, in which suit may be brought for its enforcement, is six years from the date of presentation and refusal to pay, unless presentation is in law excused.</p> <p>3. Ordinarily the drawer is not bound until payment is demanded and refused, but presentation is not necessary when the drawer at the time of its delivery had no funds to his credit in the bank on which it was drawn. In that event the statute begins to run from the date of the check.</p> <p>4. The plea that if the debt was due, it was not due to the plaintiff, was, under the admissions of the answer, properly stricken. So also was the plea to the effect that there was a parol agreement that the debt evidenced by' the check should bear no interest.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. May 31, 1900.</p>

<p>One who entered a building undergoing alterations, and who sustained personal injuries because of an attempt to make his exit therefrom through a window the framing of which was insecurely fastened, could not, though his entry was lawful and though he honestly believed that in the existing condition of the premises it was safe and proper to use the window as a means of exit, hold the owners of the building liable for those injuries, when his presence therein was not by their invitation, either express or implied, and they in no way induced him to put the window in question to such a use.</p>

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

<p>Where a landlord forecloses a statutory lien for supplies furnished his tenant, and the execution is levied upon the crop of the tenant, who files a counter-affidavit denying the existence of the lien and the furnishing of the supplies, but no replevy bond is filed, a general judgment cannot be rendered in the landlord’s favor.</p>

<p>Complaint for land. Before Judge Candler. DeKalb superior court. March 26, 1900.</p>

<p>1. In the trial of a suit brought by a mother against a master for the homicide of her son, where there was no allegation in the plaintiff’s petition that the defendant was negligent in the employment of the servants who had control over the deceased, it was not error to reject the declaration of one of such servants, since deceased, that he had been in the employment of the defendant for only a short time, and did not know what were the duties of the son.</p> <p>2. Where all the theories properly arising in a case are covered by correct general propositions embraced in the judge’s charge, if amplification of the same is desired, written requests should be made therefor.</p> <p>3. The extracts from the charge complained of in the present case, when considered in the light of the portions thereof of which no complaint is made, were not erroneous for any reason assigned. The verdict was amply sustained by the evidence, and no error appears to have been committed which required the granting of a new trial.</p>

<p>Iudictment for murder. Before Judge Smith. Montgomery superior court. December 19, 1900.</p>

<p>1. The verdict was not contrary to the evidence.</p> <p>2. The instructions to the jury were in substantial accord with the. law laid down by this court in the present case at a former term.</p> <p>3. In order for this court to determine whether an answer did or did not' contain an alleged admission, a copy of the answer must appear in the transcript of the record.</p> <p>4. When a bill of exceptions specifies as a material portion .of the record a particular document, and a copy of it is not sent up, this court, in the absence of a timely suggestion by counsel of a diminution of the record, will not, after ascertaining in the proper manner that the original is not of file in the office of the clerk of the trial court, take further steps to have the record completed.</p>

Action, for damages. Before Judge Lumpkin. Fulton superior court. February 3, 1900. The Dodd Grocery Company sued the Postal Telegraph-Cahle Company for $170.80 as damages for failing to transmit and deliver a telegraphic message within a reasonable time.

<p>Levy and claim. Before Judge Calhoun. City court of Atlanta. January 17, 1900.</p>

<p>Certiorari. Before Judge Lumpkin. Eulton superior court. April 19, 1900.</p>

<p>That a landlord against whom a tenant had obtained a recovery in an action for injuries to a minor son, occasioned by a defect in the building rented, did not set up in defense to that action an indebtedness due by the tenant for rent, presented no legal obstacle to the landlord’s subsequently recovering from the tenant the amount of such rent.</p>

<p>1. Under the provisions of the code of this State, before heirs at law of a de-' ceased intestate can recover land which had belonged to the estate of such intestate, they must allege and prove that there was no administration on the estate, or that the administrator, if there was one, assented to their bringing' suit.</p> <p>2. The best method of proving that no administration was ever had upon a particular estate is to introduce the evidence of the ordinary, or of another who has examined the records in the court of ordinary where letters of adminis- ' tration should have been granted, that no such letters are shown by those , records.</p> <p><5. Where a person owning land died,- and, several years thereafter, such land. was levied on and sold for city taxes, in a suit to recover the land by the heirs ‘ of the deceased person against the purchaser at the tax sale, in which the lat-1 . .tér.relies as a defense upon the tax deed, he and the heirs claim under a common source of title, although the tax sale was void. ■</p> <p>4. Such purchaser can not, in aid of his defense, set up an outstanding title in another without connecting himself with that title.</p> <p>5. Where complaint for land is brought by tenants in common who sue jointly and severally, those who show sufficient title may recover in that action, although others who show no such title do not recover.</p>

<p>Levy and claim. Before Judge Lumpkin. Fulton superior court. January 15, 1900.</p>

<p>Attachment — complaint on account. Before Judge Reid. City court of Atlanta. June 27, 1900.</p>

<p>Complaint- — -appeal. Before Judge Lumpkin. Pulton superior court. May 14, 1900.</p>

<p>Action for damages. Before Judge Eeid. City court of Atlanta. July 3, 1900.</p>

<p>Levy and claim. Before Judge Candler. DeKalb superior court. March 29, 1900.</p>

<p>Injunction and receiver. Before Judge Lumpkin. Fulton superior court. October 6, 1900.</p>

<p>When on the trial of an action against an administrator, to which a plea of plene administravit had been interposed, it appeared that the assets of the estate were insufficient to pay all the just claims and demands against it, the plaintiff was not entitled to a judgment de propriis against the administrator on proof that the'latter had paid certain demands inferior in dignity to that of the plaintiff, when it also appeared that there existed, outstanding and unpaid, a claim of higher dignity than his, sufficient in amount to absorb the entire assets. While such payments constituted a devastavit for which the administrator was personally liable, such liability existed only in favor of a creditor injured by the making of such payments.</p>

<p>Petition for mandamus. Before Judge Lumpkin. DeKalb superior court. October 19, 1900.</p>

<p>1. Findings of fact made by an auditor in favor of a plaintiff can not be treated as “ unwarranted ” merely because of defects in his petition.</p> <p>2. A defendant is not entitled to the benefit of any defense which should be made by answer and as to which his answer is silent.</p> <p>3. Showing that a return of nulla bona has been made upon an execution is not the exclusive method of proving the insolvency of the defendant therein.</p> <p>4. A creditor of an insolvent corporation suing exclusively for his own benefit may proceed against stockholders for balances due upon their stock subscriptions, without joining with them other stockholders similarly liable.</p> <p>5. Though the sum named in a promissory note as principal may in fact include actual principal and usurious interest, yet if such note stipulates for 8 per cent, interest from maturity, the true principal bears that rate of interest after the note becomes due; and to properly purge the note of usury, it is only necessary to eliminate the unlawful interest, i. e. interest exceeding 7 per cent, included in the nominal principal.</p> <p>6. This court will not interfere with the discretion of a trial judge in refusing to sustain exceptions of fact to the report of an auditor in an equity cause, when the findings to which they relate were warranted by the evidence.</p>

<p>"When a foreclosure proceeding directed against two adjoining lots deals with the land therein embraced as an entire parcel or tract, and neither by allegation nor prayer places one lot upon a different footing or status from the other, a verdict in the plaintiff’s favor, though sufficiently describing one lot and very indefinitely referring to the other, should be treated as applying to both, when, taking into consideration all of its terms and giving to the same in the light of the entire record a reasonable interpretation, it "is manifest that the jury intended to establish the plaintiff’s lien upon all the realty in controversy.</p>

<p>1. The giving o'£ a correct instruction to. the jury is not cause for a new trial merely because of failure to give in connection therewith a pertinent charge upon some other branch of the law applicable to the case. It is not essential that a judge, in charging upon the abstract question of liability or non-liability, should in that immediate connection instruct the jury upon the law with respect to the measure of damages in the event they find the defendant liable.</p> <p>2. The requests to charge, so far as legal and pertinent, were sufficiently covered by the general charge, which, as a whole, fully and fairly presented to the jury the law of the case.</p> <p>3. It does not appear that a refusal to allow a witness to answer given questions resulted in injury to the complaining party, when the record does not set forth what would have been the answers to such questions.</p> <p>4. Grounds of a motion for a new trial alleging that the verdict was contrary to specified portions of the charge of the court are in essence merely complaints that the verdict was contrary to law. It does not in the present case appear that the verdict was unlawful.</p> <p>5. The evidence warranted the verdict, and it does not affirmatively appear that the same was excessive in amount.</p>

<p>1. Where a creditor made a loan of money and took as security therefor a deed to land from the borrower, and also a written instrument executed by two other persons, whereby they obligated themselves to make the land bring the amount of the loan ; and where, after allowing the borrower to sell ofE a portion of the land and receiving some of the proceeds thereof, the creditor entered into an agreement with him and still anotherperson, whereby he assumed the payment of the balance due upon the debt and obtained title to the unsold portion of the land, subject to the creditor’s security deed; and where thereafter the creditor reduced this claim against this person to judgment, conveyed to him the unsold part of the land, caused it to be sold by the sheriff as his property, and purchased it at the judicial sale: Seld, that the two original guarantors were discharged and no longer liable on their undertaking; and this is true whether the first sales of parts of the land were made with their consent or not.</p> <p>2. Under the facts of this case as to which there was no dispute, and the law applicable thereto, the verdict in favor of the defendants was demanded and ought to stand, whether any error of law was committed at the trial or not.</p>

<p>Petition for injunction. Before Judge Lumpkin. Eulton superior court. June 27, 1900.</p>

<p>Injunction. Before Judge Lumpkin. Fulton superior court. December 15, 1900.</p>

<p>Action on bond. Before Judge Candler. DeKalb superior court. February 26, 1900.</p>

<p>1. When, in answer to a petition for direction filed by an administrator, the widow of the intestate set up the fact that she had been duly allowed by the court of ordinary a specified sum as a year’s support, and in such answer prayed for a judgment for the amount thereof, which was granted, it became the duty of the clerk of the superior court to issue in her favor an execution for the amount of this judgment.</p> <p>2. This case having been submitted to the trial judge for decision without a jury, and he having rendered a judgment in favor of the plaintiff, this court, in the absence of any authentic and proper information as to What evidence was introduced at the trial below, will assume that the plaintiff duly established every material allegation of her petition, and that the judgment rendered was right.</p> <p>3. The mere introduction of documents in evidence on the trial of a given case does not render them portions of the record thereof, and such documents, unless duly made a part of the record in that case by incorporation in an approved brief of evidence, can not properly be specified and brought to this court in a transcript of such record.</p> <p>4. The present bill of exceptions is so palpably without merit as to lead to the conclusion that it was sued out for delay only, and accordingly damages are awarded in favor of the defendant in error against the plaintiff in error.</p>

<p>Habeas corpus. Before Judge Smith. Wilcox superior court. November 12, 1900.</p>

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. January 5, 1900.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. January 25, 1901.</p>

<p>Levy and claim. Before A. F. Daley, judge pro hac vice. Washington superior court. March 5, 1900.</p>

<p>Indictment for incest. Before Judge Russell. Gwinnett superior court. January 5, 1901.</p>

<p>Action for damages. Before Judge Brinson. Richmond superior court. February 9, 1900.</p>

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

<p>Action on insurance policy. Before Judge Beid. City court of Atlanta. March 17, 1900.</p>

<p>Indictment for murder. Before Judge Reagan. Henry superior court. January 5, 1901.</p>

<p>Complaint. Before Judge Evans. Screven superior court. January 16, 1900.</p>

<p>1. forcibly entering a dwelling-house and murdering therein a servant of the owner does not entitle such owner to recover of the wrong-doer the value of the premises on the theory that because of the commission of the crime plaintiff’s family abandoned the house and refused to live in it, and that in consequence it has become worthless.</p> <p>2. Aside from the attempt to set forth an alleged cause of action of the nature above indicated, the petition in the present case was toó loose and indefinite to support a recovery of damages of any kind, and it was therefore not erroneous to dismiss it on general demurrer.</p>

<p>1. A bridge spanning a stream which is crossed by a public road, and constituting a portion of such road, is a “county bridge,” though the work of constructing the same be done by private citizens and a portion of the materials therefor be supplied by them, when the doing of such work and the furnishing of such materials is in pursuance of an agreement between them and the proper county authorities, who, under the terms thereof, supply the remaining materials needed for the structure. Semble, that it would be a “ county bridge ” though the citizens supplied all of the. materials and built it with the permission of such authorities; or without such permission, where the latter, in behalf of the public, accepted the bridge and allowed it to remain in place.'</p> <p>2. A county wherein such a bridge has been erected under such an agreement since December 29, 1888, is liable for injuries resulting from the defective construction thereof or from a failure by the county authorities to keep the same in repair.</p> <p>3. The evidence in the present case warranted the verdict.</p>

<p>1. Courts will not enjoin a municipal corporation from performing an act within the scope of its authority and discretion, when the act is neither unreasonable nor arbitrary.</p> <p>2. A municipal corporation can not make a valid contract abrogating or restricting its legislative or discretionary power ; and an agreement by which a city undertakes to divest itself of such power can not be used as the foundation for an estoppel against it.</p>

<p>1. Where it appears that a majority of a town council are disqualified, by reason of removal from town, interest in the case, or relationship to the parties, to abate an alleged nuisance under section 4762 oí the Civil Code, equity will take jurisdiction.</p> <p>2. At an interlocutory hearing of an application for an injunction, affidavits which do not state the court or case and which do not show affirmatively that they were made to be used in that particular case are inadmissible in evidence. It is error for the judge, over proper objection, to read and consider such affidavits in making up his judgment granting or refusing the injunction.</p> <p>3. All of Hie affidavits offered by the defendant were inadmissible because of the defect above described, while the petition and affidavits of the■ plaintiffs showed that the factory whistle, the use of which in a populous community was sought to be enjoined, was blown at unseasonable hours, was entirely unnecessary, and was so loud, harsh, and terrific as seriously to interfere with plaintiffs’ reasonable enjoyment of their habitations and cause them 'special damage. The blowing of the whistle was, therefore, shown to be a nuisance, and the judge erred in not granting the injunction.</p>

<p>Validation of bonds. Before Judge Henry. Floyd superior court. December 14, 1900.</p>

<p>1. The board of commissioners of Screven county has no authority to appoint a a clerk and pay him for his services out of the county treasury.</p> <p>2. The evidence in the present case warranted a finding that the amount specified in the verdict was paid to the plaintiff in error exclusively for services rendered the county board in the capacity of clerk, and the recovery thereof by the county was accordingly lawful.</p>

<p>1 A bill of exceptions should on its face affirmatively and unequivocally show who are the parties thereto; and, in strictly good practice, the plaintiff, or plaintiffs, and the defendant, or defendants, therein should be expressly designated as such eis nominibus.</p> <p>2. The abbreviation “ et al.,” when used in a bill of exceptions, can not be held to designate any person or persons.</p> <p>3. An acknowledgment of service upon a bill of exceptions does not relate to or bind any person not actually named or sufficiently designated therein as a defendant in error when the acknowledgment is entered.</p> <p>4. While a bill of exceptions is amendable by the record so as to introduce the names of parties, it is futile to thus make new parties defendant in error, unless they will waive service and consent that the case be heard by the Supreme Court upon its merits.</p> <p>5. If, however, there is no defendant in error, there is nothing to amend by, and a party or parties defendant can not be made.</p> <p>6. The testimony of witnesses embraced in a brief of evidence embodied in a. bill of exceptions can not properly be looked to for the purpose of determining who were parties in the trial court or who should be treated as parties in the Supreme Court.- Even if such a practice were allowable, following it in the present instance would avail the plaintiff in error nothing.</p>

<p>Garnishment and claim. Before Judge Brinson. Richmond superior court. February 8, 1900.</p>

<p>Action for damages. Before Judge Brinson. McDuffie superior court. January 19, 1900.</p>

<p>■ Certiorari. Before Judge Brinson. Eickmond superior court. January 20, 1900. -#</p>

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

<p>Appeal. Before Judge Brinson. Richmond superior court. April term, 1900.</p>

<p>Complaint on note. Before Judge Norwood. ■ City court of Savannah. March 1, 1900</p>

<p>Appeal. Before Judge Brinson. Columbia superior court. May 14, 1900.</p>

Action for damages. Before Judge Norwood. City court of Savannah. April 3, 1900. G-. B. Bond testified: I am one of the defendants in this case, a brother of the other defendant. I was born in DeKalb county, and have never been out of that county as a permanent resident.

<p>Trover. Before Judge Norwood. City court of Savannah. May 17, 1900.</p>

<p>Rule. Before Judge Falligant. Chatham superior court. April 6, 1900.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. June 25, 1900.</p>

<p>1. In the absence of any consent or agreement, either express or implied, on the part of a husband, that the earnings of his wife shall be retained by her as her separate estate, they belong to him.</p> <p>2. A petition brought to recover an undivided interest in realty is not maintainable when it fails to aver of what fractional part of the whole that interest consists.</p> <p>3. The petition as amended failed to set forth a cause of action, and was rightly dismissed upon the demurrer filed thereto.</p>

<p>Action for damages. Before Judge Seabroolc. Effingham superior court. January 27, 1900.</p>

<p>"Where a railroad company entered into the actual possession of land, constructing and putting in operation its line of road thereon, whether with or without the owner’s consent, a subsequent purchaser of the land takes it subject to the burden of the .railroad, and has no right of action against the company for the value of the land so appropriated.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. January 17, 1900.</p>

<p>It was erroneous to reject an equitable amendment offered by the plaintiff in execution in a claim case, which set up that the deed on which the claimant relied was fraudulent and void; that, even if not void, it was a mere security for a debt due by the defendant in execution; that a sufficient amount had been collected by the claimant from rents to reimburse him ; and that, therefore, in equity the title was in the defendant in execution and subject to his debts.</p>

<p>1. A petition for divorce on the ground of habitual intoxication can not be amended by adding thereto the ground of cruel treatment, although the facts alleged to constitute such treatment are substantially the same as those set forth in the original petition.</p> <p>2. “Intoxication,” as used in section 2427 of the Civil Code, which provides for the granting of a divorce on the ground of “habitual intoxication,” means drunkenness produced by alcoholic liquors, and not the condition resulting from the excessive use of morphine.</p>

<p>1. A judgment sustaining a general demurrer to a petition brought to recover damages for the negligent destruction of property will bar a second suit by the same plaintiff against the same defendant for the same alleged cause, of action, though the grounds of negligence upon which the second petition is based may be different from those embraced in the first.</p> <p>2. Even if the court erroneously refused to give the plaintiff the right to open and conclude the argument, as the result reached by the judge presiding without a jury was the only legal conclusion that could possibly have been reached, the error would not require a reversal of the judgment.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. July 27, 1900.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. April 23, 1900.</p>

<p>Indictment for assault with intent to murder. Before Judge Littlejohn. Sumter superior court. January 8, 1901.</p>

<p>Injunction. Before Judge Reese. Hancock superior court. November 26, 1900.</p>

<p>Indictment for seduction. Before Judge Littlejohn. Stewart superior court. January 28, 1901.</p>

<p>Petition for injunction. Before Judge Spence. Echols superior court. December 21, 1900.</p>

<p>1. The right of sepulture,in a given cemetery lot existed as to a decedent whose deceased parent was while in life the owner thereof, and who as heir at law of that parent inherited an undivided interest in the lot.</p> <p>2. A grandmother with whom a grandchild having no living parent resided at the time of such grandchild’s death had the legal right to cause the body to be buried in a lot wherein there was, relatively to the decedent, a lawful right of sepulture.</p> <p>3. A brother of the decedent, though a minor, had the right to participate with the grandmother in causing such burial to be made.</p> <p>4. An unlawful and unwarranted interference with the exercise of such right of burial was a tort, which gave to the grandmother and brother a cause of action against the wrong-doer, and they were entitled to maintain the same without joining with themselves as a party plaintiff a non-resident sister of the decedent, who was not present when the attempt to bury the remains was made.</p> <p>5. In a suit for an unlawful and unwarranted interference with the exercise of such a right of burial, if the injury inflicted upon the plaintiffs was wanton ' and malicious, or the result of gross negligence, or reckless disregard of the rights of others, equivalent to an intentional violation of them, exemplary-damages may be awarded, in estimating which the injury to the natural feelings of the plaintiffs may be taken into consideration.</p> <p>6. When upon the hearing of a demurrer to a petition the court passed an order in effect striking'a portion thereof and limiting the plaintiffs’ right of recovery to specified items, their right to except to such order was not lost because they consented to so much of a verdict which the court directed in their favor as related to the amount they were entitled to recover upon such items.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. July 19, 1900.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. July 23, 1900.</p> <p>The plaintiff testified: "While working for T. S. Wylly & Co. on the Central Railroad high wharf on the 28th of April, 1900,1 was told to take a piece of timber 14x16, about 35 feet long, out of the way; so I told the men on the stage to come quick. I had a crowbar in my hand. I snatched up the crowbar and ran to the end of the timber. I jammed the bar under it, and the men strung alongside of the stick of timber, waiting for a fingerhold. I could not give them the hold there. I told them to look out, and I made a break to go around them to go to the center of the piece with a quick move on me, and in going the wharf broke through with me in a rotten place in the dock, and that threw me. I went clean up to my thigh in the dock. There was no hole in the wharf at the time I went through; the wharf looked as if it was safe, until it broke through with me. The place where I went through looked no different from any other place around there; there was nothing to put me on notice that it was a dangerous place. Afterwards they patched up the wharf. Mr. Skipper, the regular wharf carpenter down there, fixed the wharf. He had a crowbar, and in some places he would hit it like that, and the bar would start on through. I did not see that the plank I stepped on was rotten; it looked just the same as any other wharf; all seemed to be safe. This was a pretty big wharf, and there is constantly lumber piled on some of it. This stick of timber had been, piled on this wharf only the day before.' They did not keep lumber piled on this portion of the wharf; it was used for sorting orders. I made a hole in this plank big enough for my thigh and hip to go through. I made a break around the crowd to get to the center of the piece, and on my way the plank- gave way. There was nothing to show me that the plank was rotten when I started to work on it. The crowbar was not under the stick of timber when I fell through. I fell through while I was on my way from the end to the center of the stick.</p> <p>The plaintiff also proved his injury.</p>

<p>That the testimony of one named in a nuncupative will as legatee is essential to lawfully proving the making thereof does not render his legacy void.</p>

<p>Certiorari. Before Judge Eelton. Bibb superior court. January 16, 1900.</p>

<p>Even if section 3509 of the Ci-vil Code authorizes an ordinary to grant a final discharge to a temporary administrator, this can not be lawfully done until after the citation thereby required has been duly published for three months.</p>

<p>1. In charging a jury with respect to the six per cent, and seven per cent, columns in an annuity table, the judge should direct them to use the latter; and in giving instructions with regard to using the mortality and annuity tables, he should call their attention to the decreased capacity to earn money which will result from increasing age and the infirmity incident thereto.</p> <p>2. An amendment to a petition which merely amplifies and explains more fully the original caus6 of action is allowable.</p> <p>3. In the trial of an action for a personal injury, it is competent for the defendant to prove that, shortly after the injury was inflicted, the plaintiff admitted “ that the injury was caused by his own fault, and that nobody was in fault but himself.”</p> <p>4. An employee who has the choice of two ways of doing a given piece of work, the one safe and the other dangerous, is under a duty to his employer to select the former; and if, instead of so doing, he selects the latter, when he knows or ought to know of the danger, he can not recover of the employer for injuries thus sustained, although his.conduct in selecting the dangerous way may not have amounted to actual rashness.</p> <p>5. The foregoing notes cover all of the material questions of law, properly presented by the motion for a new trial, which will probably arise at the next hearing of this case.</p>

<p>1. Where a plaintiff in a justice’s court appealed to a jury therein from a judgment rendered hy the magistrate in the defendant’s favor, and when the case came on for a hearing upon the appeal dismissed, not the appeal, hut “ the case,” it was a dismissal of the cause of action, and the plaintiff had the right to sue again.</p> <p>2. There was, in addition to the legal presumption of negligence against the defendant company, some evidence warranting a finding that it was in fact negligent, and it does not appear that the court erred in overruling its certiorari.</p>

<p>Garnishment — certiorari. Before Judge Felton. Bibb superior court. June 27, 1900.</p>

<p>Garnishment — appeal. Before Judge Felton. Bibb superior court. June 27, 1900.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. November 30, 1899.</p>

<p>Complaint. Before Judge Felton. . Bibb superior court. April 17, 1900.</p>

<p>Petition for injunction. Before Judge Falligant. Chatham . superior court. November 22, 1900.</p>

<p>Equitable petition — intervention. Before Judge Seabrook. McIntosh superior court. June 23, 1900.</p>