Volume 113 — Georgia Reports

<p>1. This court has no jurisdiction to entertain a motion for a rehearing at a term subsequent to that at which the judgment in the case was rendered.</p> <p>2. A motion to modify an unconditional judgment by this court so as to make the same a judgmentwith given directions can not be entertained at a term subsequent to that at which, the judgment was originally rendered.</p>

<p>Indictment for simple larceny. Before Judge Russell. Lowndes superior court. January 8, 1901.</p>

<p>Refusal of injunction. Before Judge Sheffield. Baker superior court. September 22, 1900.</p>

<p>Injunction. Before Judge Lumpkin. Fulton superior court. November 3, 1900.</p>

<p>1. The forfeiture of a criminal recognizance by scire facias is a civil proceeding, and the scire facias is amendable.</p> <p>2. A recognizance conditioned for the appearance of the accused to answer the charge of “ assault with intent to kill ” is not void as failing to show that the offense charged is an offense against the laws of the State. Under such a charge the accused might be convicted at least of an assault.</p>

<p>Action for damages. Before Judge Candler. DeKalb superior court. August 15, 1900.</p>

<p>Action for damages. Before Judge Brinson. McDuffie superior court. May 14, 1900.</p>

<p>Action for damages. Before Judge Proffitt. City court of Elberton. February 15, 1900.</p>

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

<p>Certiorari. Before Judge Reese. Elbert superior court. April 13, 1900.</p>

<p>Equitable petition. Before Judge Reese. Hart superior court. March 19, 1900.</p>

<p>1. A bill of exceptions reciting that “ plaintiffs introduced their evidence hereinafter specified, and closed,” and containing no further statement with respect to this evidence, fails to show what was the testimony introduced in behalf of the plaintiffs.</p> <p>2. There is a like failure to show what testimony was introduced in behalf of the defendant, when the bill of exceptions merely recites in general terms that he introduced certain documents, certain interrogatories, and the oral testimony of a named witness, without disclosing the contents of the documents or the interrogatories, or setting forth what the witness testified.</p> <p>3. Such defects can not he cured hy attempting to bring up as a part of the record what purports to he a brief of the evidence, not referred to in the bill of exceptions, and not verified by the judge. Even if this paper had been specified in the bill of exceptions, the want of verification would he fatal.</p> <p>4. Assignments of error which can not be intelligently understood and passed upon without reference to the evidence do not properly present anything for consideration hy the Supreme Court when the evidence is not properly brought up to it. Eor reasons sufficiently indicated, it is apparent that the evidence in the present case was not so brought up.</p> <p>5. The hill of exceptions was not duly verified as a whole, the certificate of the judge thereto affirmatively showing that a portion of it was not true.</p> <p>6. The writ of error must be dismissed, because (1) there is no sufficient assignment of error, and (2) the bill of exceptions is not duly certified.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. May 8, 1900.</p>

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

<p>1. One who advances money to pay off an encumbrance upon realty at the instance either of the owner of the property or the holder of the encumbrance, either upon the express understanding, or under circumstances from which an understanding will be implied, that the advance made is to be secured by a first lien on the property, is net a mere volunteer; and in the event the new security is for any reason not a first lien on the property, the holder of such security, if not chargeable with culpable and inexcusable neglect, will be subrogated to the rights of the prior encumbrancer under the security held by him, unless the superior or equal equities of others would be prejudiced thereby; and to this end equity will set aside a cancellation of such security and revive the same for his benefit.</p> <p>2. Knowledge of the existence of an intervening encumbrance will not alone prevent the person advancing the money under an agreement of the character above referred to from claiming the right of subrogation, when the exercise of such right will not in any substantial way prejudice.the rights of the intervening encumbrancer. Delay on the part of the intervening encumbrancer to prosecute his legal remedies, and indulgences granted by him to the debtor, brought about by the fact that the lien to which subrogation is asked had been cancelled on the records, will, when accompanied by substantial damage to the rights of the intervening encumbrancer, be a sufficient reason for a court of equity to refuse the person advancing the money the right of subrogation and a decree setting aside the cancellation, when the claim of subrogation is not asserted within a reasonable time after knowledge that the prior encumbrance has been cancelled of record.</p> <p>3. If a junior encumbrancer pays off,a senior encumbrance, he will generally, when the payment was necessary for his protection, be subrogated to the rights of the senior encumbrancer.</p> <p>(a) To entitle one creditor to be subrogated to the rights of another, as a general rule the former must have satisfied in full the demand of the latter, so as to relieve him from trouble, expense, and risk.</p> <p>(b) If the creditor to whose rights subrogation is claimed has been satisfied in full, the fact that such satisfaction has been brought about by two persons will not prevent each from setting up the right of subrogation as against the other, to the extent of the payments made by them ; and this is true notwithstanding the payments may have been made at different times.</p> <p>4. When one advances money to another upon an agreement that the lender is to have a first lien on described property, and to secure the debt thus created the lender takes a security deed, the mere fact that the lender has sought to enforce the collection of his debt by the remedies appropriate in such a case will not alone amount to a waiver of the right to be subrogated to the claim of a prior encumbrancer, when in his efforts to follow the remedies above referred to he discovers that such subrogation is necessary to his protection.</p> <p>5. When a transaction apparently lawful in all respects is attacked as usurious, it is incumbent upon the person making such attack to affirmatively show that the same is thus tainted; and the mere fact that the amount received by the debtor is less than the apparent principal of the debt, and that treating the amount thus received as the true principal would render the transaction usurious, will not alone constitute proof of usury.</p> <p>6. That the lender of money used to pay off a prior encumbrance charged usury would not deprive him of the right to be subrogated to the rights of the prior encumbrancer to the extent of the principal of the loan and lawful interest thereon.</p> <p>7. The plaintiff’s equitable petition set forth a cause of action, and there was no error in overruling the general demurrer to the same.</p> <p>8. When a loan of money is secured by a conveyance of real estate, and subsequently the property depreciates in value so that the same is worth less than the debt, the lender, if the borrower is insolvent, has an equitable claim to the rents of such property ; and especially is this true when the lender is delayed in the prosecution of his remedies hy a claim filed hy a third party, and the litigation is protracted. It is permissible in a claim case for the plaintiff in execution to file, in aid of his levy, an equitable amendment to the joinder of issue, setting up his claims to the rents; and he may in such amendmeaj.attack a sale'which is in his way, and make necessary parties for this purpose. Such an amendment does not add a new cause of action to the claim case.</p> <p>9. When a lender of money brings suit against the legal representative of the borrower, praying a special lien on land taken as security for the repayment of the loan, and the defendant, under a plea of plene administravit preeter, sets up and proves that he has collected the rents of the land for given years and appropriated them in a specified way, and the judgment is in favor of the defendant on this plea, the plaintiff is precluded by such judgment from afterwards claiming that the rents referred to in this plea should have been appropriated to his debt.</p> <p>10. A creditor who is the holder of a junior encumbrance, but who claims to have been subrogated to the rights of the senior encumbrancer as against the rights of an intervening encumbrancer, in setting up the right of subrogation must make the senior encumbrancer a party to the proceeding, or allege a sufficient reason for not doing so; and must also make such allegations and ask for such relief as the senior encumbrancer should make and ask for if he were proceeding in his own right.</p> <p>11. Other questions made in the record which may probably arise at another hearing are dealt with in the opinion.</p>

<p>Application for partition. Before Judge Brinson. Richmond superior court. May 9, 1900.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. August 18, 1900.</p>

<p>Foreclosure of lien. Before Judge Eve. City court of Richmond county. August 23, 1900.</p>

<p>Distress warrant — appeal. Before Judge Eelton. Bibb superior court. December 21, 1899.</p>

<p>It is not erroneous to reject evidence offered as a whole and tending to show damages resulting from several days’ delay in complying with a contract, when it is manifest that the party claiming such damages is in no event entitled, to hold the other party responsible for any greater damages than would have ensued from delay of a single day in complying with the contract, and when the evidence so offered fails to show what the damages for one day’s-delay would he.</p>

Action for damages. Before Judge Nottingham. City court of Macon. July 3, 1900.

<p>Equitable petition. Before Judge Reese. Elbert superior court. March 13, 1900.</p>

<p>Equitable petition. Before Judge Reese. Wilkes superior court. May term, 1900.</p>

<p>Illegality. Before Judge Reese. Hart superior court. April 17, 1900.</p>

<p>Complaint for land. Before Judge Reese. Madison superior court. March 10,1900.</p>

<p>Injunction. Before Judge Beese. Madison superior court. September 7,1900.</p>

<p>Action for damages. Before Judge Cobb. City court of Athens. January 29, 1900.</p>

<p>Injunction. Before Judge Smith. Wilcox superior court. December 21, 1900.</p>

<p>1. Although the evidence as to the damage sustained by the plaintiff was conflicting, that of each of a number of witnesses in the case was sufficient to authorize the verdict.</p> <p>2. The right of access from a street by the owner of land abutting on such street is a property right of which he can not be deprived without compensation ; and when a municipal corporation, in the exercise of the power conferred on it to grade and improve its streets, destroys or impairs such right, the corporation is liable to the owner in an action for damages.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. July 24, 1900.</p>

<p>1. A motion to dismiss a bill of exceptions because the assignments of error made do not plainly specify the errors alleged will not be sustained unless every assignment made is subject to such objection. This court will not consider any assignment which does not plainly specify the alleged error. The motion to dismiss in this case is overruled, because the bill of exceptions contains some assignments of error properly made.</p> <p>2. The backing of an execution from a justice’s court, required to be made before it can be levied on property in a county where not issued, is the indorsement by a justice of the peace of the latter county of his official signature on the execution.</p> <p>3. There was no error in directing a verdict finding the property subject.</p>

<p>Action for damages. Before Judge Proffitt. City court of Elberton. February 14, 1900.</p>

<p>Where one places money in the hands of another to he used to pay certain creditors of the former, such creditors not being parties to the arrangement and not having accepted or ratified the same, the fund is the property of the depositor, and as such is subject to process of garnishment.</p>

<p>1. Where plaintiffs in ejectment claim under a deed made pursuant to an award which was made the judgment of the superior court, and the deed is shown to he lost, it is error to refuse to admit in evidence properly certified copies of the award, judgment, and deed, when the same appear to he regular, and the award and judgment appear to have been rendered in a case in the supe- . rior court having jurisdiction thereof. In such a case it is not necessary that the record of the entire proceedings should be introduced; nor, when the plaintiffs are expressly named in the deed as grantees and as heirs general of a certain person, is it necessary, because the judgment was in favor of such heirs general, for the plaintiffs to show their relation to that person in order to render such papers admissible.</p> <p>2. “ When the court has erroneously ruled out evidence without which the plaintiff could not possibly recover, his failure to go on and prove other essential facts will not cure the error and sanctify a judgment of nonsuit.”</p>

<p>Equitable petition. Before Judge Reese. Hancock superior court. April 14, 1900.</p>

<p>When at the hearing in vacation of a motion for a new trial an order is passed granting a new trial unless the plaintiffs will, within thirty days, write off a certain amount from the verdict, and this is not done within the time named, anew trial in the case results, and the court has no authority, at a term subsequently held, to pass an order allowing the plaintiff to write off the amount nunc pro tunc. The above is true notwithstanding counsel for both parties were under the impression that there had been an actual writing off, and each had acted on this supposition.</p>

<p>When a defendant against whom a verdict has been rendered makes a motion for a new trial, he can not properly, while the same is still pending and undisposed of, .bring to this court for review any ruling, order, or decision made by the judge during the progress of the case, or the judgment entered upon the verdict.</p>

<p>Though a petition for certiorari does not upon its face show that it was presented to the judge of the superior court for sanction within the time prescribed by law, yet where it is in fact sanctioned, and the answer to the writ of certiorari discloses that less than thirty days elapsed between the trial in the justice’s court and the sanction, it is erroneous at the hearing in the superior court to dismiss the certiorari on the ground that it does not affirmatively appear <1 in the petition for certiorari that said petition was sanctioned within the time prescribed by law.”</p>

<p>When a case involving a disputed issue of fact is tried by a justice of the peace in a justice’s court, and he decides that under the evidence submitted the plaintiff is not entitled to recover, he should render a judgment for the defendant ; but if, instead of so doing, he dismisses the action, the plaintiff may nevertheless enter an appeal, for the decision, notwithstanding the form of the judgment, is in substance an adjudication on the merits as to the matter of fact in controversy at the trial.</p>

<p>Complaint for land. Before Judge Russell. Gwinnett superior court. April 28, 1900.</p>

<p>Certiorari. Before Judge Russell. Gwinnett superior court.August 4, 1900.</p>

<p>Complaint for land. Before Judge Russell. Gwirmett superior court. August 3, 1900.</p>

<p>1. The act of December 21, 1897, amending section 4465 of the Civil Code, did not have the effect of striking therefrom the words “ or proceeding in the court of ordinary,” although the recital in that act as to how the section would read after making specified changes therein was, because of an omission of these words from the transcript of the amended section, erroneous.</p> <p>2. An affidavit made since the passage of that act, for the purpose of entering an appeal in forma pauperis, is fatally defective if it states conjunctively inability’to pay costs and give security, instead of doing so disjunctively.</p> <p>8. When, in support of a motion to amend such an affidavit by striking therefrom the word “and” and inserting in its stead the word “ or,” the appellant’s attorney in preparing such affidavit deposed that “ by accident and mistake he omitted from said 'affidavit the word ‘or,’ ” but refused to depose, when required by the court, that “by accident or mistake, the word ‘ and’ was used instead of ‘ or,’ ” there was no error in refusing to allow the amend ment, or in dismissing the appeal for want of a proper affidavit.</p>

<p>Action for damages. Before Judge Prior. City court of Hall county. February term, 1900.</p>

Certiorari. Before Judge Estes. Lumpkin superior court. April 19, 1900. “ Georgia, Lumpkin County.

<p>Equitable petition. Before Judge Russell. Hall superior court. June 8, 1900.</p>

<p>Petition for injunction. Before Judge Henry. Floyd superior court. September 22, 1900..</p>

<p>Action for damages. Before Judge Gober. Cobb superior court. June 4, 1900.</p>

<p>1. When a defendant admits enough in his answer to make out a prima facie case for the plaintiff, the burden of making out his defense rests upon the former.</p> <p>2. An agreement by a purchasing agent to abide by his principal’s weights and classification of the goods purchased, if correctly made, binds the agent to accept as correct statements of weight and classification arrived at by the principal in the due prosecution of his business, according to the established system by which it is conducted ; and in such a case the burden is on the agent to show that the statements were in fact incorrect.</p> <p>3. As the verdict complained of was the only outcome of the pleadings and evidence which was legally possible, it must stand, irrespectively of the assignments of error embraced in the motion for a new trial.</p>

<p>Habeas corpus. Before Judge Henry. Henry superior court. January 26, 1901.</p>

<p>Action for damages. Before Judge Bennet. Camden superior court. July 3, 1900.</p>

<p>There was no abuse of discretion in granting the injunction and appointing a receiver.</p>

<p>Petition for injunction. Before Judge Bennet. Clinch superior court. December 27, 1900.</p>

<p>Petition for injunction. Before Judge Bennet. "Ware superior court. January 26, 1901.</p>

<p>Certiorari. Before Judge Lumpkin! Fulton superior court. June 25, 1900.</p>

<p>1. On the trial of an action to recover damages for personal injuries received by one using a street of a city, in consequence of an obstruction therein, the evidence showing not only that the plaintiff .received a serious hurt, but that he suffered much pain, a verdict for three hundred dollars can not he set aside as excessive.</p> <p>2. Though a particular instruction taken alone may be open to the criticism that it required a given qualification, yet where it plainly appears that elsewhere in the charge this very qualification of the doctrine laid down in such instruction was so distinctly and clearly stated as that the jury were not misled as to the true law, the giving of the instruction will not require the granting of a new trial.</p> <p>3. It is the duty of the authorities of a city to keep and maintain the sidewalks thereof in a reasonably safe condition for public use, and this duty is not performed by keeping in such condition that part of the sidewalk only which is most generally used.</p> <p>4. Whether a wire stretched along the outer edge of a sidewalk about four feet from the ground, and fastened to two poles, by contact with which the plaintiff was injured, was an obstruction to the safe use of the street, was a question of fact for the jury to determine under proper instructions from the judge.</p> <p>6. Relatively to the city it was not error for the judge to charge the jury that if the plaintiff (a child of twelve years) was a passenger upon the street, and was injured by an obstruction on the street while playing thereon, and such playing was simply incidental, it would be no bar to his recovery if the city was negligent.</p> <p>6. It was not error to refuse to charge the jury that one passing from the street to the sidewalk or the reverse (in a city), at any point other than a crosswalk, has .no reason to expect a safe passage-way, and must therefore do so at his own risk.</p> <p>7. The verdict was supported by the evidence.</p>

<p>Motion to amend decree. Before Judge Evans. Tattnall superior court. April 13, 1900.</p>

<p>Certiorari. Before Judge Brinson. Richmond superior court. April 28, 1900.</p>

<p>In the absence of a legal return of service, the court has no authority to enter a judgment by default.</p>

<p>1. Where one makes written application for a policy of life-insurance, and executes a promissory note the proceeds of which are used to pay the first premium, and the purchaser of the note takes it with notice that the policy has not at that time been issued, such purchaser, though he purchase the note for value and before maturity, incurs the risk of a possible failure of the company to deliver to the maker such a policy as is described in the application.</p> <p>2. In determining the question as to whether the policy issued is in accord with that described in the application, representations made to the applicant by certain agents of the company, without the knowledge of the purchaser, as to the meaning of certain technical terms in the application, are inadmissible.</p> <p>3. The purchaser of the note can not be affected by any notice of fraud or misrepresentations as to the meaning of the application, when such notice is not given until after he has become the holder of the note.</p> <p>4. The evidence showing without contradiction that the policy issued to the defendant was in exact accord with that described in his written application, and the plaintiff being without notice, at the time he purchased the note, of any misrepresentations as to the meaning of the application, it was proper to direct a verdict for the plaintiff.</p>

<p>1. A motion by one of the parties to set aside a judgment of the superior court, ■which itself set aside a judgment making the award of arbitrators the judgment of the court, on the ground that the judgment setting aside the award was improvidently granted by reason of the parties failing to present to the court the whole record of the case, from which certain facts would have appeared, was properly overruled. The full record should have been presented by the movant, if the same afforded, a defense, when .the award was attacked; and a party defendant to (he proceedings, having knowledge of facts which he failed to present at the proper time, is concluded by the judgment.</p> <p>2. A material difference between the oath administered to arbitrators and that prescribed by statute, in a statutory submission, affords a good cause for setting aside an award.</p>

<p>Complaint on account. Before Judge Winn. City court of Gwinnett. January 17, 1900.</p>

<p>. Equitable petition. Before Judge Russell. Jackson superior court. February 6, 1900.</p>

<p>1. Where the issue is whether a certain blast was made with due care, and it appears that this blast was part of a job of blasting lasting continuously for some days, it is proper to admit evidence tending to show that there was negligence in the manner in which the blasting was done at times before and after the particular blast under consideration.</p> <p>2. In such case it was not error to charge that the jury might consider such evidence in determining the character of the particular blast in question.</p> <p>3. A charge that, while in a given instance a permit should have been in writing, the party acting under an oral permit should not be “ chargeable with laches,” is not hurtful to such party as intimating that he had not complied with the law unless he had obtained a written permit.</p> <p>4. Where one, in doing certain blasting within a city, injures property of another, the fact that the former has fully complied with the regulations of the city authorities as to the manner in which the blasting should be done will not relieve him of liability if the blasting was done without due care.</p> <p>5. Where it does not appear that either party has suppressed evidence within his power to produce, it is error to charge the jury as follows : “ It is the duty of parties bringing cases into court, whether plaintiff or defendant, to furnish the best evidence at their command and to furnish witnesses cognizant of the facts. Parties can explain the reasons for not producing the witnesses; if not explained and not produced, the presumption is that they would not sustain the contention of the party.”</p> <p>6. To charge the jury : “You will consider the interest of the parties, consider the relationship as well as the employment as calculated to bias ; whether it biased in this case,” is not erroneous as intimating that “ employment would necessarily bias a witness.”</p> <p>7. Solely because of the error dealt with in the fifth headnote, a new trial is ordered.</p>

<p>Certiorari. Before Judge Estes. Rabun superior court. March 12, 1900.</p>

<p>Equitable petition. Before Judge Gober. Cobb superior court. November 23, 1899.</p> <p>To the facts stated in the opinion it may be added that the allegations of the petition were as follows: In the year 188— there was organized a lodge of what is known as the Grand Templars in the city of Marietta. A short time after their organization they purchased a lot and built a house thereon, which was known as the Grand Templars’ Hall. Early in 1894 petitioners and the entire membership of Grand Templars agreed between themselves that they would diásolve or abandon said organization of Grand Templars, and organize in lieu thereof a lodge of Good Samaritans, which was done at said time. It was agreed between all of the members of the Grand Templars that the title to said property should go into and become the property of the Good Samaritans, but said deed was not made before the dissolution of said lodge of Grand Templars. Said lodge of Good Samaritans, immediately after their organization, took possession of said property, and have had the use, possession, and control of it until on or about October 25, 1898. Said property is located on the south side of Polk street, and bounded on east by the property of Anne Key, west by property of Eph. Williams and what is known as Sisters’ Hall in city of Marietta, Ga. Petitioners (Annis Lowe, John Williams, and Fred. Reeves) are the duly elected and appointed trustees of said Good Samaritan Lodge, and are entitled to the possession, use, and control of said property. On or about October 25, 1898, Squire Jackson and Peter Simmons were excluded from membership in said lodge, and on the next day they and Ed. Alexander, forcibly and against the will of petitioners and said lodge of Good Samaritans, took possession of said property and placed a lock upon the door, and refused and still refuse to allow petitioners or said lodge to enter the lodge-room and use and possess the same as heretofore. The said lodge is now deprived of the use of said lodge-room, regalia, and other paraphernalia of said organization, on account of said wrongful acts of said three defendants, who have no interest, title, or right of possession in said property. The same is worth $10 per month for rent. Defendants are insolvent. Waiving discovery, plaintiffs pray: (1) That defendants be required to deliver possession of said house and lot in dispute to petitioners as trustees, and be enjoined from interfering with them and said Good Samaritan Lodge in the full use and enjoyment of said property. (2) That the title of said property be decreed to be in petitioners as trustees of said Good Samaritan Lodge No. 37; and that such further relief be granted as may seem just and proper. (3) For process.</p>

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

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

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

<p>Indictment for robbery. Before Judge Brinson. Richmond superior court. January 19, 1901.</p>

<p>Complaint. Before Judge Gober. Cherokee superior court. March 17, 1900.</p>

<p>Certiorari. Before Judge Reagan. Spalding superior court. January 24, 1901.</p>

<p>Indictment for incestuous adultery and fornication. ’ Before Judge Sheffield. Terrell superior court. January 16, 190.1.</p>

<p>Minority stockholders of a corporation, who, by filing an equitable petition against it and its officers, succeeded in enjoining it and them from doing ultra vires acts which would have required the expenditure of money belonging to it, were not entitled to a judgment for their attorneys’ fees against the corporation, when there was, as a result of the litigation, neither a recovery of property for the corporation, nor administration or distribution by the court of any fund brought into its hands for this purpose, and when the corporation itself repudiated the effort' of the plaintiffs to thus protect its interests, and, in defense to their petition, stood squarely upon the proposition that the acts in question were not ultra vires, but authorized by its charter.</p>

<p>Ejectment. Before Judge Evans. Bulloch superior court. May 2, 1900.</p>

<p>1. Proof of facts collaterally pertinent to the issue on trial is, though they are not alleged in the plaintifE’s petition, admissible in his behalf.</p> <p>2. Evidence of the violation by a railroad company of a valid municipal ordinance is, if the same was a part of the res gestae of an occurrence under investigation, admissible, and may be made the subject-matter of appropriate instructions to the jury.</p> <p>3. It is not erroneous to instruct a jury that, relatively to passengers, it is the duty of a railway company to use “ extreme care and caution,” whenin connection with the words quoted the court employs language appropriately limiting and explaining their meaning.</p> <p>4. The rule of law requiring railway companies to exercise extraordinary diligence in protecting their passengers from injury applies as well to the construction and maintenance of tracks as to the operation of cars thereon.</p> <p>5. A judge, in stating to a jury what are the plaintiff’s contentions, may properly call their attention to any allegations of the petition which have not been demurred to and stricken therefrom, and which are supported by evidence.</p> <p>6. An instruction, in the trial of an action against a railway company for personal injuries, that if the plaintiff shows a prima facie right to recover, it is incumbent upon the defendant “ to establish, by a preponderance of the evidence, one of two facts, either that it was without negligence, or that the plaintiff could have avoided the consequence of the negligence by the exercise of ordinary care,” is not rendered erroneous because of a failure to charge in the same connection upon the law of contributory negligence and apportionment of damages, the more especially when the legal rules bearing upon this subject are, in connection with instructions given upon the measure of damages, fully and fairly stated.</p> <p>7. When in such a trial the court explains to the jury what constitutes an unavoidable accident, and instructs them that if the injury to the plaintiff was the result of such an accident the defendant is not liable, an instruction in the language above quoted is not open to the objection that “ it did not permit the jury to consider the defense that said injury was caused by an unavoidable accident.”</p> <p>8. A jury is not bound to accept as true the literal statements of witnesses, but may reject the same, when inconsistent with reason or with facts which have been duly established to their satisfaction.</p> <p>9. It is not erroneous to refuse to give in .charge a written request setting forth a proposition which is an absurdity, though it may be manifest that this is the result of a palpable and unintentional error upon the part of counsel in framing the request.</p> <p>10. Even if error be committed in compelling a party to produce a paper, it will not, if harmless to him, entitle him to a new trial.</p> <p>11. The requests to charge not dealt with above were, so far as legal and pertinent, sufficiently covered by the general charge given in the present case ; the charge as a whole was a fair presentation of the law, and embraced no error which could have been prejudicial to the defendant.</p> <p>12. The evidence warranted a finding in the plaintiff’s favor, and, after a careful review of the-same, it does not affirmatively appear that the trial court abused its discretion in holding that the verdict was not excessive in amount.</p>

<p>Petition for injunction. Before Judge Eelton. Bibb superior court. June 28, 1900.</p>

<p>Traverse of service. Before Judge Nottingham. City court of Macon. March 12, 1900.</p>

<p>Equitable petition. Before Judge Russell. Jackson superior court. February 15, 1900.</p>

<p>Equitable petition. Before- Judge Russell. Clarke superior court. April 10, 1900.</p>

<p>1. “ The State is not bound by the passage of a law unless named therein or un less the words of the act should be so plain, clear, and unmistakable as to leave no doubt as to the intention of the legislature.”</p> <p>2. The general local option law did not name the State or manifest any intention to include the State within its operations, and therefore that law does not prohibit the State from establishing and maintaining dispensaries for the sale of intoxicating liquors, through public officers, for public profit and for the regulation of the liquor traffic.</p> <p>3. This court will not pass upon or consider any question as to the constitutionality of an act of the legislature, when it does not appear that such question was made by the record or passed upon by the lower court.</p>

<p>1. One who receives promissory notes or other choses in action as collateral security is bound to use ordinary diligence to collect them.</p> <p>2. Where suit is brought on a promissory note against an accommodation indorser thereon, and the latter defends on the ground that certain accounts were given as collateral security for the payment of the note, and that the proceeds thereof were not applied to the payment of the note, it is incumbent on him to show either that the accounts were collected and the proceeds converted by the plaintiff, or that the failure to collect was due to the negligence of the plaintiff, and that damage resulted to the defendant therefrom. Mere proof that the accounts were valuable and were not collected is not sufficient.</p> <p>Simmons, C. J., dissenting.</p>

<p>Complaint. Before Judge Reese. Wilkes superior court. May term, 1900.</p>

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

<p>Attachment. Before Judge Estes. Dawson superior court. August term, 1900.</p>

<p>1. Books of account of others than those doing a regular business and keeping daily entries thereof, who are not merchants, shopkeepers, physicians, or blacksmiths, are not admissible in evidence to prove an account. «</p> <p>2. Except in justice’s courts a party can not prove his account by his ex parte affidavit; and in the trial of an action brought to recover a judgment on an open account in the superior court, a bill of particulars thus sworn to is inadmissible in evidence.</p> <p>3. The question of the solvency of an estate and the existence of debts of a higher dignity is material, when, to a suit instituted by an executrix on a promissory note payable to her intestate, the defendant pleads as a set-off an open account larger in amount than the plaintiff’s demand, and prays judgment for the excess against the executrix.</p> <p>4. There having been no legal evidence submitted which would authorize a verdict establishing any part of the set-off which was pleaded, and the debt on which the suit was founded not being contested by the defendant, there was no error in directing a verdict for the plaintiff.</p>

<p>1. If a prisoner, while confined in jail charged with a criminal offense, write a letter in which incriminating admissions are made and give it to the sheriff to mail, and the sheriff open and keep the letter, it is admissible in evidence against the writer, notwithstanding the manner in which it was obtained.</p> <p>2. Where the evidence affords no indication of any degree of homicide less than murder and would sustain no verdict other than that of murder or an acquittal, it is not error to charge : “There is only one grade of homicide involved in this case, and that is murder,” this language, when taken in connection with the entire charge, intimating no opinion as to the guilt of the accused.</p> <p>3. Upon the trial of several persons for murder, where it was shown that there had been ill feeling between the deceased and a friend of the defendants, and where it further appeared that certain persons had met at a certain place for the purpose of resisting the arrest of this friend, and that the murder was committed at that place, it was not error to admit, as against one of the defendants, evidence of declarations, made by him prior to the commission of the offense, that he was going to that place to take part in an anticipated difficulty.</p> <p>4. The evidence fully warranted the verdict.</p>

<p>Indictment for murder. Before Judge. Sheffield. Terrell superior court. February 5, 1901.</p>

Indictment for murder. Before Judge Russell. Walton superior court. March 23, 1901. Roach and Ike Tuggle were indicted for the murder of Oscar Thompson, alias Bud Selman, by shooting him with a double-barrelled shotgun.

<p>Money rule. Before Judge Harris. Bartow superior court. November 21, 1900.</p>

<p>Action for damages. Before Judge Fite. Bartow superior court. January 2, 1901.'</p>

<p>Action for damages. Before Judge Hammond. City court of Griffin. January 31, 1901.</p>

<p>1. Under the evidence the accused was guilty of murder or not guilty of any offense. The court therefore did not err in failing to charge the jury upon the law of manslaughter.</p> <p>2. A conductor in charge of a railroad passenger-train who discovers a person attempting to steal a ride thereon has a right to require such person to come into the train and pay his fare, and is not compelled to immediately stop the train and eject him therefrom. If he refuses to come into the train and makes an assault upon one of the employees on the train with a deadly weapon, the conductor and other employees upon the train, whose safety may he imperiled by such conduct, are authorized to arm themselves with such weapons as may he necessary in order to protect themselves from further assaults.</p> <p>3. The charge complained did not contain any expression of opinion as to what had or had not been proved. The evidence fully warranted the verdict, and there was no error in refusing to grant a new trial.</p>

<p>Distress warrant. Before Judge Reece. City court of Floyd county. November 2,1900.</p>

<p>1. Since in misdemeJÍ^ ail are principals, if one who is a private detective falsely represent to a merchant that the latter is being systematically robbed, and offer to detect the thief for a certain reward, which the merchant agrees to pay for the detection and conviction of the thief, and afterward the detective, through an agent, for the purpose of obtaining the reward, induce an employee of the merchant to steal certain articles of value, which are brought to the detective and by him surrendered to the merchant, the detective, as well as his agent and the merchant’s employee, is guilty of larceny, the value of the articles stolen being such as to make the offense a misdemeanor.</p> <p>2. Where several persons conspire to do an unlawful act, the acts and declarations of one of them pending the enterprise are admissible in evidence against the others, although the former may not be on trial or indicted.</p> <p>3. There was some evidence tending to show the guilt of the accused, and the trial judge was satisfied with the verdict pf the jury. This court will, therefore, not interfere with the refusal to grant anew trial.</p>

<p>Indictment for assault with intent to murder. Before Judge Henry. Floyd superior court. March 26, 1901.</p>

<p>Complaint. Before Judge Gober. Forsyth superior court. September 13, 1900.</p>

<p>Action for damages. Before Judge Gober. Cobb superior court. November 22, 1900.</p> <p>Coursey and his wife sued the railway company for personal injuries sustained by her in getting off a train. A nonsuit was awarded, and the plaintiffs excepted. From the evidence it appeared that Mrs. Coursey, accompanied by her husband and her brother, and having a ticket for passage from Austell to DeArmond on the defendant’s railroad, got on one of the defendant’s passenger-trains at Austell, supposing that it would take her to DeArmond; but soon after she had seated herself she was told that this train would not stop there. Her brother went to another car, where he had been told the conductor could be found, and saw a man with a lantern on his arm, who, on being asked by him whether the train would stop at DeArmond, told him it would not, and that he would have to get off. The train was then in motion. This man followed him back to where Mrs. Coursey was, and told her she would have to get off, and said, “Be in a hurry.” She told him she thought the train was moving too fast, but he said it was not. She went to the rear platform of the train, preceded by her brother and followed by the man who had directed her to get off, and who continued to hurry them; and after her brother had jumped off, and while the train was still in motion, she stepped from the platform, carrying her baby on one arm and a wrap on the other. Her dress caught in the step of the platform, and she fell and was hurt' by the fall. The train had just passed the railway depot at Austell. It does not appear at what rate it was moving. Further than may be inferred from the facts before stated, and from the fact that he was seen taking up the tickets of passengers, it does not appear who was the man with the lantern. A short distance behind this train was -another train or section, which was to stop at DeArmond, and Mrs. Coursey got on it and was taken there. She was ill for a short time after that, and from time to time suffers pain which she attributes to the fall. She attributes to the same cause a miscarriage.</p>

<p>1. A widow can not recover from a railroad company for the homicide of her husband, who was killed while engaged in his duties as an employee of the company, when the evidence on which she relies fails to show either that the deceased was without fault or that the company was negligent. Applying this familiar rule to the facts of the present case, the judgment of nonsuit was right.</p> <p>2. Whether or not a writing is ambiguous is a question for the court, and not for a witness.</p>

<p>Illegality. Before Judge Fite. Bartow superior court. December 1, 1900.</p>

<p>1. An assignment before maturity of a written contract for rent does not operate to raise in favor of the assignee the special statutory lien on crops given to landlords, when it appears thatbefore the maturity of the crops on the rented premises the consideration of such contract had entirely failed.</p> <p>2. The question whether the assignees of the promissory notes involved in the present case could, as innocent purchasers thereof for value, enforce their collection by a suit thereon, is not made in the record.</p>

<p>In a controversy between two persons regarding a given subject-matter, evidence as to what occurred between one of them and a third person with reference to a similar, though entirely distinct, transaction is irrelevant.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd county. September 17, 1900.</p> <p>The petition alleged, in brief, that the plaintiff was in a buggy drawn by a mule, traveling along a public road westward through a mountain gap in which, at his right, parallel to and very near the road for a distance of about two hundred yards, was a railroad track that in front of him crossed the public road nearly at right angles, at the entrance of the gap, when suddenly a train of the defendant, which until then the mountain at the left had prevented him from seeing,' came into the gap at that end at the rate of twenty-five or thirty miles an hour, and frightened the mule, which thereupon whirled around and turned over the buggy, thus causing the injuries sued for. He alleged that in going through the gap he had listened for a train but heard none, and that his injuries were due to the negligence of the defendant in failing to blow the whistle of the locomotive and check the speed of the train while approaching the public road crossing.</p>

<p>Forfeiture of recognizance. Before Judge Reece. City court of Floyd county. October 29, 1900.</p>

Action on bond. Before Judge Janes. Carroll superior court. October 17, 1900. This was an action by the ordinary, for the use of a wife and her minor child, against her husband and his sureties on a bond for the maintenance of the wife and child for five years, given under the Penal Code, § 388, to stop a prosecution for seduction.

<p>Trover. Before Judge Clark. City court of Forsyth. November 1, 1900.</p>

<p>1. While an appeal may be lawfully entered by an attorney in fact for the losing party, the authority of such attorney must be in writing and must be filed in the court in which the case is pending, either at the time the appeal is entered, or at such time thereafter as the court in its discretion may expressly allow. If such authority is not filed at the time the appeal is entered or within the time allowed thereafter, the appeal must on motion be dismissed, unless it appears that the party has ratified in writing the unauthorized appeal.</p> <p>2. The writing relied on as the authority of the alleged attorney in fact to enter the appeal in the present ease did not confer upon the person therein named any such power.</p>

<p>Action for damages. Before Judge Gober. Cobb superior court. November 22, 1900.</p>

<p>Assuming the allegations thereof to be true, the petition set out a cause of action. The contract which was sought to be enforced does not, from the allegations made, appear to be without consideration. The court erred in sustaining the demurrer.</p>

<p>Actions for damages. Before Judge Fite. Whitfield superior court. December 3, 1900.</p>

Action on bond. Before W. H. Ennis, judge pro hac vice. City court of Floyd county. November 16, 1900. The bond sued on recited a levy by Broach, deputy-sheriff, upon the property for the forthcoming of which the bond was given. The defendants by plea denied the alleged indebtedness, that the property was of the value alleged in the petition, and that the property was advertised for sale as alleged.

<p>Action for damages. Before Judge Reagan. Monroe superior court. September 28, 1900.</p>

<p>Action for damages. Before Judge Janes. Haralson superior court. November 7, 1900.</p>

<p>Taxation of costs. Before Judge Henry. Floyd superior court. December 18, 1900.</p>

<p>1. One named as grantee in an instrument purporting to be a deed executed by a deceased person is not, on a trial in the result of which he is interested, competent to testify in his own favor to any facts tending either directly or indirectly to show the execution of the paper.</p> <p>2. A general complaint that error was committed in rejecting specified evidence referred to as a whole is not good if any of the same was inadmissible.</p> <p>3. The verdict directed in this case was demanded by the evidence.</p>

<p>Exceptions to auditor’s report. Before Judge Reagan. Monroe superior court. September 17, 1900.</p>

<p>Contest of election. Before Judge Reagan. Spalding superior court. January 22, 1901.</p>

<p>Appeal. Before Judge Gober. Cobb superior court. October 1,1900.</p>

<p>Certiorari. Before Judge Gober. Milton superior court. August 21, 1900.</p>

<p>Money rule. Before Judge Harris. City court of Cartersville. October 6, 1900.</p>

<p>Action for damages. Before Judge Fite. Catoosa superior court. October 20, 1900.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. October 12, 1900.</p> <p>The widow of Molsdale sued the Mayor and Council of the City of Dalton for damages on account of his death, which, according to the evidence introduced by her at the trial, occurred under these circumstances: In driving a wagon, at night, on a bridge that crossed a ditch within the city limits, and which bad-no guard-rail' or other protection at the sides, he drove near the right-hand side of the bridge, and, after the front wheels had crossed the bridge and while the rear wheels were still on it, the right front wheel ran upon a rock that slanted at the right side; and this slant caused the wheel to slide- farther towards the- right-; the result of which was to throw the rear right wheel in the same direction, so that it fell over the side of the bridge, and he fell from the wagon, his head struck a rock, which crushed it, and he died from the injury. The night was dark and there was no light- at that place. The bridge was about sixteen feet wide. He had frequently before driven over it. The rock first mentioned had long been in the same place, being a part of a former bridge. The plaintiff alleged that the bridge was dangerous in not having a guard-rail, and in being considerably narrower than the street; that the municipality was negligent in erecting such a bridge and- in allowing it to remain on one of the thoroughfares of the city; in allowing the rock to be where it was; and in not having a light at the bridge. The exceptions are to the granting of a nonsuit, and to the striking from the petition of the allegation that “prior and subsequent to the injury to [plaintiff’s] said husband, similar accidents have occurred, though not so serious in results.”</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. December 18, 1900.</p>

<p>Action for penalty. Before Judge Henry. Chattooga superior court. September 12, 1900.</p>

<p>Where, in an action against a railroad company for personal injuries alleged to have resulted from plaintiff’s horse having "become frightened by the improper and unnecessary emission of steam from one of the company’s engines, one of the defendant’s main defenses is that no steam whatever was at the time of the injury emitted from its engine, it is error for the court to fail to submit this issue„to the jury in his charge. This is true although there was no request to charge upon this subject.</p>

<p>Action on warranty. Before Judge Henry. Floyd superior court. January 3, 1901.</p>

<p>Action for damages. Before Judge Henry. Chattooga superior court. December 17, 1900.</p> <p>This action was on account of personal injuries from the derailment of a train of the defendant, on which the plaintiff was a passenger, caused by a collision of th'e rear end of the train with a cow while moving backward. He alleged that the defendant was negligent because the train was running at a reckless rate of speed, and without any one at the rear to guide it, apply brakes, or give the proper signals in the event of danger, when great care should have been exercised in approaching the place where the collision occurred, which was a public road crossing within the limits of a station. There was a verdict against the defendant for $700, and it made a motion for a new trial, to the overruling of which it excepted. One ground of the motion is that the court erred in charging the jury as follows: “ In order that the plaintiff may recover, if the defendant was negligent as charged, and caused his injury, it is not necessary that it be shown that he was injured in all of the ways he charges, in the details or particulars, to his person, or to the extent he charges, as to any one or more, or all of them; because, owing him the, duty that the railroad did, if he was its passenger at the time, if it was negligent in the way he charges, that is if it did or failed to do the things he. sets up as constituting negligence, and if he was injured or hurt on his person at all, then he would be entitled to recover something.” It is alleged that this was erroneous, because the last clause, “if it did or failed to do the things he sets up,” etc., expresses an opinion that the doing or not doing of the acts complained of would constitute negligence.</p>

<p>Action of trespass. Before Judge Henry. Floyd superior court. December 11, 1900.</p>

<p>Petition for injunction. Before - Judge Henry. Floyd superior court. February 12, 1900.</p>

<p>Distribution of money. Before Judge Janes. Haralson superior court. December 17, 1900.</p>

Complaint. Before Judge Harris.. Meriwether superior Court. August 28, 1900. Drewry & Lavender sued the Palmer Manufacturing Company on an open account, which was mainly for staves alleged to have been furnished by the plaintiffs to the defendant, and on which there was alleged to be a balance due of $716.91. A verdict for $500.91 principal, and $59.88 interest, was rendered against the defendant; and error is assigned on the overruling of its motion for a new trial.

<p>There is in this State no law or rule of evidence which authorizes the admission of a letter or certificate from the commissioner of patents of the United States, to show what does not appear upon the records of his office.</p>

<p>1. Where the defendant assumed without objection the burden of proof, it was not error to allow him to open and conclude the argument before the jury. Even had the right to open and conclude been originally with the plaintiff, he waived it by acquiescing in the assumption by the defendant of the affirmative on the proof.</p> <p>2. If the owner of land through which a railroad runs induce the company to build a private way across its track, it is not the duty of the company to put and keep it in such condition that an engineer on an approaching train can readily perceive live stock or persons on the crossing.</p> <p>3-. Section 2220 et seq. of the Civil Code does not apply to a private way not established by law.</p> <p>4. It was not error to charge, in an action against a railroad company for injuries to live stock, inflicted near but not at a public crossing: “ The failure of the railroad company to comply with the law as-to blowing' and checking would not in itself be sufficient legal ground for a recovery in this case, and such omission without any other act of negligence would not authorize you to find for plaintifE. Such evidence is admitted only as a circumstance which the jury may consider in determining the negligence of the defendant.”</p> <p>5. Section 2320 of the Civil Code is not applicable to a case in which there is no evidence of any by-laws, rules, or regulations.</p> <p>6. There was no error in charging: “If the defendant was less negligent than plaintiff, plaintiff could not recover.”</p> <p>7. The evidence warranted the verdict.</p>

<p>Ejectment. Before Judge Harris. Troup superior court. January 30, 1901.</p>

<p>Motion to set aside judgment. Before Judge Reagan. Pike superior 'court. October 20, 1900.</p>

<p>Levy and claim. Before Judge Reagan. Upson superior court. August 31, 1900.</p>

<p>In order for an acknowledgment of service entered upon a bill of exceptions and signed by one other than the defendant in error to evidence legal service thereof, it must affirmatively appear that the person signing such acknowledgment was the attorney for the. defendant in error. When this does not appear, either from the bill of exceptions or the record, the writ of error will be dismissed.</p>

Exceptions to auditor’s report. Before Judge Reagan. Pike superior court. October 24, 1900. In 1858 Mrs. Millie Beckham qualified as guardian of her sons Z. T. and G. D. Beckham, born respectively in 1847 and 1849. She died in 1893, without having been discharged as guardian, and her returns as such showed an indebtedness by her to the wards for an amount considerably greater than the value of the estate left by her at her death.

<p>Motion to make parties defendant in error.</p>

<p>1. When the Supreme Court has before it both a main bill of exceptions and a ■ cross-bill of exceptions, and the latter presents a question which is controlling upon the case as a whole, it will be disposed of first; and if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed.</p> <p>2. The plaintiffs in the present case did not allege facts entitling them to any of ' the relief for which they prayed.</p>

<p>Action for damages. Before Judge Bennet. Ware superior court. July 14, 1900.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. March 12, 1900.</p>

<p>Construing sections 3828 and 3829 of the Civil Code together and in the light of the decision of this court in Mott v. Railroad, 70 Qa. 680, and of legislation since that decision, the children mentioned therein are the minor children of the deceased father. Consequently, when a widow recovers a judgment against a railroad company for the negligent homicide of her husband, his children who were adults at the time of his death are not entitled to share in the proceeds of the judgment.</p>

<p>1. There being some evidence to support the verdict, which was approved by the trial judge, this court will not set it aside.</p> <p>2. It is not the duty of a trial judge to intimate or express any opinion as to what weight or consideration should be given by the jury to an admission made by one of the parties. What weight should be given to the admissions of a party largely depends on the circumstances under which they are made, and the effect of such circumstances is to be judged by the jury alone.</p> <p>3. A party to a suit who testified in his own behalf on a former trial, and who on a subsequent trial of the same case is offered as a witness, becomes in such subsequent trial an original witness, and is not “ estopped ” from testifying contrary to his evidence as reported on the former trial.</p> <p>4. In an action to recover the amount of a fire-insurance policy, together with damages and attorney’s fees for alleged bad faith on the part of the defendant in not paying the amount alleged to be due thereon within sixty days after demand and proof of loss, the defendant was not entitled to the opening and conclusion because of such admissions in his answer as would only entitle the plaintiff to recover the face of the policy with interest, without the introduction .of evidence by the plaintiff, although it was further admitted that the amount sued for as attorney’s fees would be reasonable if the defendant’s refusal to pay the policy was in bad faith, it being expressly denied that there was any bad faith in this respect, and the trial having been conducted on the theory that the act allowing such damages was constitutional.</p>

<p>Action on insurance policy. Before Judge Estes. ’ Hall superior court. May 2, 1900.</p>

<p>Equitable petition. Before Judge Gober. Pickens superior court. August 13, 1900.</p>

<p>Indictment for disorderly house. Before Judge Hodnett. City court of Carrollton. December 20, 1900.</p>

<p>The older overruling the motion for a. new trial, fails to show that the verdict sought to be set aside was approved by the trial judge in the exercise of asound legal discretion, but clearly, by the terms therein employed, it indicates the contrary. In the absence of such approval, the verdict can not, under the evidence, be sustained.</p>

Petition for injunction. Before Judge Lumpkin. Fulton superior court. March 1, 1901.

<p>1. An assignment of en'or upon an order denying an application for injunction, made in the following words : “ To which order the plaintiff excepted and now excepts and assigns the same as error, in that it is contrary to the law and the evidence in the case,” is good. The motion to dismiss the writ of error for insufficient assignment of error is overruled.</p> <p>2. A street-railway company which has constructed and is legally operating a line of railway in the streets of a city is possessed of such a property interest as gives it a legal right to maintain an application to restrain a similar company from interfering with its line of tracks already laid, and from constructing a line of road over its private property without authority of law. To such an application the city is not a necessary party defendant.</p> <p>3. Notice of a motion to reconsider the passage of an ordinance hy a legislative body of a municipal government, which requires the approval of the mayor to give it force, has no other effect than to prevent the immediate transmission of such ordinance to the mayor for action thereon. If the motion to reconsider is not made at the next regular meeting, the notice is functus officio, and the ordinance so passed stands as the action of the body which passed it, and, on the adjournment of such meeting, should be transmitted.</p> <p>(а) The action of the general council of the City of Atlanta, in fixing January Y, 1901, as a day for the regular meeting of the aldermanic board, was, under its rules, had by a two-thirds vote.</p> <p>(б) The ordinance in controversy, granting a franchise to construct and operate a line of street-railroad in certain streets, having been legally passed by the two legislative bodies of the City of Atlanta, and approved by the mayor in. due time, it operates as a legal and valid consent of the city to the exercise of the powers conferred by law on the Atlanta Eapid Transit Company, upon the terms incorporated in such ordinance.</p> <p>4. Under the evidence, Hie trial judge was fully warranted in ruling that Cherokee avenue was one of the public streets of the City of Atlanta.</p> <p>6. Under the terms of the contract made by the two parties at interest, a connecting track of a street-railway to he made by one of them at Hunter street with the tracks of the street-railway on 'Whitehall street, which was authorized by the municipal authorities, is not in violation of any legal right of the other owner of an equal interest in and right to use such tracks.</p> <p>6. No error was committed in refusing the application for injunction.</p>

<p>Petition for injunction, etc. Before Judge Littlejohn. Webster superior court. February 16, 1901.</p> <p>This was a petition by which devisees under the will of Mattie J. Stephens sought to obtain possession of the devised property, in the possession of Peter Stephens, the executor, and to have a part of the will, in which he was appointed trustee for them and given control of the property during his lifetime, declared void; an accounting from him; a decree that there was no necessity for administration, and canceling the letters of administration; an injunction against the cutting and removal of timber which he had sold to other persons, who were made defendants to the petition, and against the collection by him of money due the estate and his disposing of cotton grown on the land, or of other property of the estate; and the appointment of a receiver to take charge of .the property. The petition, among other things, alleged that all the devisees were more than twenty-one years of age at the time of the death of the testatrix, and that there was no reason why there should be a' trustee for any of them, and no necessity for administration, there being no debts; and that Peter Stephens was insolvent, and was, by reason of want of business capacity, an unfit person to manage the estate. There was a demurrer on the grounds, that no cause of action Was set out; that the defendant Stephens was entitled to the possession of the property; that less than one year had elapsed from the probate of the will; and that the remedy of the plaintiffs was by petition to the ordinary to require Stephens to give bond as executor, and, on default, to remove him from the trust, the court of ordinary alone having jurisdiction of such matters. In his answer Stephens denied the allegations as to his insolvency and his unfitness to manage the estate. He admitted that there were no debts of the estate so far as he knew, but alleged that twelve months from the decedent’s death had not expired. The court, after hearing the evidence, refused to grant an injunction or appoint a receiver, and stated in the judgment that the plaintiffs had failed to show waste. The plaintiffs excepted. The material parts of the will are as follows : “ Item 2nd. It is my will and desire that all of my property of every kind . . of which I may die seized and possessed shall belong to and be the property of my brother and sisters [naming them], who share in the distribution of my estate share and share alike. . . Item 3rd. It is my will and desire that my husband, Peter Stephens, shall take charge of all my property of every kind hereinbefore mentioned in item second of this my will, as trustee for the beneficiaries therein mentioned in said item second, and also as executor of my estate, who shall keép my real estate together and in no wise dispose of the same, but he shall have the sole and exclusive control and management of all my property during his natural life, to be managed by him as in his judgment he may deem best; and to this end he may purchase stock and run the farm, replace any stock that may die off which I now own, out of my estate, and may sell off any personalty he may deem advisable, or dispose of timber on my lands. Item 4th. It is my will and desire that my husband, Peter Stephens, as trustee for the beneficiaries of this my last will, and as executor of my estate, shall not be required to make any returns of .expenditures to any court, nor shall there be an inventory of my property, nor be required to answer to any court for his actings and doings as trustee or executor, nor shall my husband be required to make bond and give security as trustee or executor, but his control shall be absolute as herein specified; nor shall the said Peter Stephens be required to answer to or be responsible to any person or persons whatsoever as to his acts and doings as trustee or executor.”</p>

<p>1. When the owner of land and a contractor agree upon terms for the erection of a building, in a particular manner, and by the use of certain specified materials, “ under the personal and direct supervision ” of a named person, he having no authority other than that indicated by the words quoted, the right of the owner to have the terms of his contract complied with is not affected by the fact that such superintendent accepted a class of work and material different from that named in the contract.</p> <p>:2. When a contractor undertakes to do certain work (the erection of a building) within a limited period of time, the exercise of proper prudence on his part requires that the work be commenced within such a reasonable time after the execution of the contract as will enable him to finish it within the time limit, notwithstanding unusual, heavy, or constant rains ; and when it was shown in such a case that the contractor delayed the commencement of the work to a period after which he could only have finished it within the limit had the season been an ordinary one, it was error on the part of the trial judge to charge the jury, in effect, that if the contractor commenced the work at a period which would have enabled him to finish it within the time limit under . ordinary conditions, but was thereafter prevented from completing it in the given time, because of unusual, heavy, and constant rains, such causes would be a sufficient excuse for a failure to construct the work within the time limit.</p> <p>:3. Where one claims damages from a contractor because of the failure to erect a store and office building within a given time, and the evidence supports such claim, the proper measure of damages is the rental value of the building for the time elapsing between the time fixed for its completion and the time when it was delivered and turned over.</p>

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

<p>A railway company in its capacity as a common carrier may, as the basis for fixing its charges and limiting the amount of its corresponding liability, lawfully make with a shipper a contract of affreightment embracing an actual and bona fide agreement as to the value of the property to be transported; and in such case the latter, when loss, damage, or destruction occurs, will be bound by the “ agreed valuation.” But amere general limitation as to value, expressed in a bill of lading, and amounting to no more than an “ arbitrary preadjustment of the measure of damages,” will not, though the shipper assents in writing to the terms of the document, serve to exempt a negligent carrier from liability for the true value.</p> <p>Under section 2318 of the Civil Code, a carrier failing to comply with the requirements of the next preceding section as to tracing “freight” which has been lost, damaged, or destroyed, and giving information with respect thereto, becomes liable for the negligence of a connecting carrier.</p> <p>Where both the parties to a case move for a new trial, the granting of either motion leaves the case pending in the lower court; and while it so remains, a judgment overruling the other motion can not be lawfully brought to the Supreme Court for review.</p>

<p>1. A transcript of proceedings had in a court of ordinary, establishing a lost record of an application for a year’s support, is, on the trial of an action of ejectment subsequently instituted, admissible in favor of one holding under the party at whose instance such proceedings were instituted, when it appears that the record so established is a muniment of title, and that the applicant for the year’s support had due notice of such proceedings.</p> <p>2. When a report of appraisers to set apart a year’s support shows that they appraised the entire estate of the decedent and designated the whole of it as the year’s support to be allowed, failure to minutely describe in the report the realty belonging to the estate does not render the proceeding void.</p> <p>3. When a widow applies for a year’s support for the benefit of herself and her ' minor children, and appraisers designate certain property as that which they set apart for such year’s support, the mere fact that the report itself purports to allow the property to the widow, without referring to the children, does not render the proceeding void or exclude the children from participation in' the benefits of the year’s support. On the contrary, the report should be construed in the light of the application.</p> <p>4. A widow to whom a year’s support to herself and her minor children has been allowed and set apart may lawfully mortgage the property embraced therein, for the purpose of obtaining the necessaries of life for herself and her minor children.</p>

Levy and claim. Before Judge Hart. Greene superior court. September 15, 1900. Personalty in the possession of Culver was seized by virtue of bail process in trover, as his property, and a claim to it as homestead property was interposed in behalf of his wife and children as beneficiaries of the homestead.

<p>Foreclosure of mortgage. Before Judge Hart. Putnam superior court. September 25, 1900.</p>

<p>1. When a bill of exceptions recites that there was “ a judgment of the court for the plaintiffs against defendants,” and in the caption to the motion for a new trial which appears in the record there is a statement that the case was “ tried before the judge without the intervention of a jury,” the writ of error will not be dismissed on the ground that it does not distinctly appear by what authority the judge rendered the judgment without the intervention of a jury, when there is nothing in the record to indicate that the judge wrongfully assumed authority to decide a case which should have been submitted to a jury.</p> <p>2. When the recitals in the ground of a motion for a new trial sufficiently indicate the character of the judgment rendered to enable this court to determine-the assignments of error, it is not necessary that a copy of the judgment rendered should be specified in the bill of exceptions and transmitted in the record.</p> <p>3. When a judge has passed an order distinctly approving a document as a brief of evidence in the case, an order passed subsequently to the date of the order approving the brief of evidence, reciting that the latter order is “extended for all purposes, and especially for the purpose of perfecting and filing for approval a brief of the evidence,” will not alone have the effect to set aside: the order approving the brief of evidence.</p> <p>4. In order to authorize this court to reverse the judgment of the trial judge allowing an amendment to a petition, the record must distinctly disclose, not only that objection to the allowance of such an amendment was made at the time the same was allowed, but also the ground of such objection.</p> <p>.5. An understanding between the owner of land and one who, having no interest to protect, pays off an incumbrance thereon, that the latter shall be given “ a deed to the land,” and shall “hold the land as collateral security,” will not alone have the effect of subrogating the person discharging the incumbrance to the rights of the holder of the same.</p>

<p>Petition for injunction. Before Judge Lumpkin. Eulton superior court. March 16, 1901.</p>

<p>Injunction and receiver. Before Judge Eelton. Bibb superior court. March 29, 1901.</p>

<p>Action for damages. Befóle Judge Hammond. City court of Griffin. December 3, 1900.</p>

Action for damages. Before E. W. Hammond, judge pro hae vice. Henry superior court. January 15, 1901. This case was formerly before the Supreme Court. 106 Ga. 826. At the last trial the plaintiff obtained a verdict for $1,000.

<p>Motion to amend judgment. Before Judge Hart. Greene supe^ perior court. September 5, 1900.</p>

<p>There is no authority of law for officials in charge of the financial affairs of a county to purchase vaccine matter and make the eost of the same a charge against the county.</p>

<p>Complaint on account. Before Judge Hart. Greene superior court. September 5, 1900.</p>

<p>Complaint. Before Judge Hart. Jasper superior court. September 24, 1900.</p>

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

<p>. Complaint. Before Judge Willis. City court of Columbus. December 15, 1900.</p>

<p>Levy and claim. Before Judge Butt. Chattahoochee • superior court. January 7, 1901.</p>

<p>Quo warranto. Before Judge Spence. Worth superior court. April 23, 1901.</p>

<p>Levy and claim. Before F. C. Foster, judge pro hac vice. Greene superior court. September 12, 1900.</p>

Case — certiorari. Before Judge Hart. Morgan superior court. September 6, 1900. The plaintiff, having bought a ticket, became a passenger on the defendant’s train from Madison to Atlanta, and caused her trunk to be checked to that place. On her arrival there she presented the check for the trunk to the defendant’s agents, and was informed that the trunk was not there.

<p>A devise giving a fee in land to remaindermen on the termination of a life-estate, with the restrictions that the remaindermen should “ never mortgage, rent, or sell said parcel of land,” vests in such remaindermen, at the death of the life-tenant, a fee in such land free from the restrictions sought to be imposed. The restraint upon alienation, being repugnant to the nature of the estate, is void.</p>

Equitable petition. Before Judge Hart. Morgan superior court. September 7, 1900.

<p>Case — appeal. Before Judge Hart. Jones superior court, November 28, 1900.</p>

<p>Action for damages. Before Judge Butt. Muscogee superior court. August 31, 1900.</p>

<p>Where upon the trial of an action brought upon promissory notes given for the purchase-money of certain land the defense relied upon involved the question whether the land was sold by the plaintiff to the defendant at so much per acre, or by the tract, a charge predicated upon the defendant’s theory ’ that the land was sold by the acre was erroneous when there was no evidence to support it.</p>

<p>Complaint on note. Before Judge Sheffield. Early superior ■court. October 4, 1900.</p>

<p>Complaint for land. Before Judge Sheffield. • ■ Randolph superior court. January 15, 1901.</p>

<p>Levy and claim. Before S. J. Jones, judge pro hac vice. City court of Albany. September 10, 1900.</p>

<p>Certiorari. Before Judge Hansell. Lowndes superior court. November 3, 1900.</p>

<p>Appeal. Before Judge Hobbs. City court of Albany. November term, 1900.</p>

<p>Garnishment. Before Judge Smith. Irwin superior court. October 23, 1900.</p>

<p>Complaint on note. Before Judge Smith. Twiggs superior court. November 7, 1900.</p> <p>Napier Brothers & Company sued Mrs. Burkett on a promissory note, and she filed, at the first term, a plea denying indebtedness and setting up that the note was given without consideration. On the trial she offered an amendment in which, after admitting the execution and delivery of the note and that the plaintiffs were its legal owners, she alleged that it was given under these circumstances : Her son W. Y. Burkett, after having mortgaged a mule and a horse to the plaintiffs as security for the payment of his note to them for supplies furnished him while he was engaged in farming with one Oove, turned over the farm and the mule and horse to Gove, on condition that Gove pay out of the proceeds the debt due the plaintiffs; after which J. H. Napier, one of the plaintiffs, came to her and told her that her son had committed the offense of doing away with or selling mortgaged property, and could be imprisoned and convicted; and that the plaintiffs would arrest, imprison, and prosecute him unless the debt were paid or unless she would give her note for the amount sued for, and a mortgage on land to secure it. She was old and infirm, and became at once terribly alarmed, and another of her sons, Sol. T. Burkett, went to the plaintiffs to arrange the matter, and they agreed that on payment of $100 in-thirty days they would settle the threatened criminal’ proceedings and not prosecute,-but [said] that she must give her. note and,.mortgage to prevent immediate arrest and jailing of her1 son ; whereupon, there being no alternative, she, solely on -her- belief -in these threats, and having no means of disproving the statements of Napier, and being without the benefit of counsel, signed the note. In about thirty days her son tendered to the plaintiffs the $100, but they refused it, on the ground that it came too late; and. afterwards they attempted to sell the land and brought this, suit. The note was given under duress and in order to suppress a threatened criminal prosecution, when her son was innocent; because the threats to arrest, imprison, and convict him tended to and did coerce her to sign the papers contrary to her own will. The amendment, when first offered, was accompanied by an affidavit of the defendant that the new facts and defense set out in the amendment were not omitted from the original plea for the purpose of delay, and that the amendment was not offered for delay. She added an affidavit that when the original plea was filed she had no notice or knowledge of the new facts or defense set up in the amendment, because she did not know “the facts set forth made by Napier,” as to her son’s guilt, were false; and the falsity of said allegations has come to her knowledge since the filing of the original plea. The plaintiffs objected to the allowance.of the amendment, and demurred to it on the grounds: (1) It is too late, and the affidavits do not comply with the law. (2) The affidavit is inconsistent with the allegations in the plea, and bears on its face evidence that it can not be proved. (3) The first paragraph of the amendment (the admission as to the execution and ownership of the note) is a solemn admission in judicio, and is inconsistent with the remainder of the amendment, and negatives the defense attempted to be set up. (4) No. valid defense is set out in the amendment. (5) The amendment shows facts that make the son guilty of a misdemeanor, and these facts could not, therefore, constitute duress; and it is not denied that the note sued on settled the debt of the defendant’s son to the plaintiffs.</p> <p>The defendant then moved to strike the first paragraph of the amendment, and the court allowed this to be done over the objection that it was a solemn admission in judicio and could not be withdrawn. The court also allowed the amendment. There was a verdict for the defendant; and a motion for a new trial, on the grounds that the verdict was contrary to law and the evidence, was overruled. The plaintiffs excepted to each of these rulings.</p>

<p>1. The notice which section 4644 of the Civil Code requires a plaintiff in certiorari to give to the defendant therein must, in order to be legally complete and sufficient, affirmatively show that the petition for certiorari has been sanctioned by the judge.</p> <p>2. It is too late to give the notice required by that section after the expiration of the term of the superior court to which the certiorari was returnable and at which it was triable.</p>

Indictment for assault with, intent to rape. Before Judge Hart motion for new trial before Judge Brinson. Richmond superior court. March 18, 1901.

Complaint. Before Judge Butt. Muscogee superior court.. December 3, 1900. This was an action on an open account for publishing notice of' an application for letters of dismission as administrator, at rates alleged to be in accordance with the Civil Code, § 5461. A demurrer,, on the ground that the rates charged were in excess of those allowed by this section, was sustained, and the plaintiff excepted.

<p>1. One who bases an alleged right to recover land upon prior possession alone does not make out a prima facie case by merely testifying that he “ went into possession of it only by leasing it to a [named person] for turpentine purposes for three years and putting him into possession,” and that the lessee “commenced cutting it about two years after [the plaintiff] leased it to him,” and that “ during the time [the lessee] was working the land for turpentine [the plaintiff] sold it to ,” another person.</p> <p>2. As the evidence in the present case demanded the verdict in favor of the defendant which the court directed, it was erroneous to grant a new trial.</p>

<p>Complaint on account. Before Judge Spence. Worth superior court. October 24, 1900.</p>

<p>Exceptions to auditor’s report. Before Judge Candler. Thomas superior court. December 10, 1900.</p>

<p>Action for damages. Before Judge Seabrook. Colquitt superior court. October 22, 1900.</p>

<p>Inasmuch as the act of December 20, 1899 (Acts 1899, p. 74), requires that certain claims against municipal corporations shall be presented for adjustment to the municipal authorities before suit can be brought thereon, and allows such authorities thirty days within which to consider and act upon such a claim, suit can not be brought upon such a claim until after the municipal authorities have acted upon the claim or after the expiration of thirty days from the time the claim is presented, unless there is a legal excuse for failure to comply with the provisions of the act.</p>

Complaint. Before Judge Smith. Wilcox superior court. September 26, 1900.

Equitable petition. Before Judge Smith. Montgomery superior court. November 14, 1900. Held: cultivated, and occupied it under said deed continuously in good faith to November 30, 1898, at which time, for a sufficient valuable consideration, she sold and conveyed it to the plaintiff by a deed under which he immediately entered into actual possession of the land in good faith, and has held the land and cultivated a part of it…

<p>Action for damages. Before Judge Smith. Telfair superior court. December 21, 1900.</p>

<p>Complaint. Before Judge Smith. Irwin superior court. October 24, 1900.</p>

Action for damages. Before Judge Dart. City court of Douglas. August 31, 1900.

<p>“When it appears that one of the two magistrates of a militia district rendered a judgment in a ease pending in the other’s court, and there is nothing to show whether the latter was or was not disqualified to try such case, it will not, even if it he the law that one of such magistrates can properly preside in the other’s court only when he is disqualified, he presumed that the magistrate who rendered such judgment usurped authority which he could not lawfully exercise.</p>

<p>• Certiorari. Before Judge Bennet. Coffee superior court. August 15, 1900.</p>

<p>: Complaint. Before Judge Dart. City court of Douglas.. August 24, 1900.</p>

<p>Complaint. Before E. P. Padgett, judge pro hac vice. City court of Baxley. October 29, 1900.</p>

<p>1. An. assignment of error in a bill of exceptions, complaining that the court, “ over the protest of the plaintiff,” allowed named persons, not parties to the original action, to file an intervention therein, and excepting generally to the allowance of such intervention, without stating what, if any, objection was made thereto when offered, does not properly present any question for decision by the Supreme Court.</p> <p>2. After persons not parties to an action have been allowed to intervene therein as defendants, it is their right to file pleadings denying the plaintiff’s allegations and setting up reasons why he should not have the relief sought by his petition.</p> <p>3. The filing of such pleadings does not relieve the plaintiff of the burden of establishing his right to a recovery.</p> <p>4. Even if constructing improvements on given realty will in any event entitle a contractor to a lien on other realty of the same owner which may be benefited or enhanced in value by reason of such improvements, it is incumbent on the contractor, in order to maintain a suit for the foreclosure of such lien on this latter Tealty, to clearly and distinctly identify it by evidence.</p> <p>6. The evidence for the plaintiff did not, in the present case, establish his right to a foreclosure, either in whole or in part, of his alleged lien, and there was no error in granting a nonsuit.</p>

<p>Action for damages. Before Judge Bennet. Coffee superior court. October 10,1900.</p> <p>Lott & Perkins sued for damages on account of the cutting of timber on a lot of land. They were nonsuited on the ground that they had failed to show title in themselves to the premises in dispute. The bill of exceptions states that they introduced “ a complete and perfect chain of title from the State of Georgia into themselves,” which the court admitted in evidence, with the exception of what is described as “a certified copy of lease from the Waycross Lumber Company, and the Bewick Lumber Company to Lott & McLean.” This certified copy was objected to, because the existence of an original had not been shown, and the original had not been accounted for. The plaintiffs, as a reason why the copy should be admitted, introduced as a witness John McLean, who testified that there did exist an original of this copy; that he had the original in his possession, and the last he saw of it was when he delivered it to Padgett, a lawyer at Baxley, Ga., about four years ago, Padgett being his attorney and the paper being delivered to him in connection with legal matters which Padgett had in charge for him; that he afterwards went to Padgett to get it, in connection with another legal matter, and Padgett searched among his papers and could not find it. This search was made about two years ago, and he does not know whether Padgett has since found it or not; he has called on Padgett several times for it, and has never been able to get it. He does not know whether Padgett looked among all of his papers, nor does he know but that Padgett might have overlooked it among those he did look over on that occasion. His opinion is that the original is lost or destroyed. Padgett “ has been in attendance upon the court this week. I think he left here yesterday.” "W. H. McDonald testified that while a former suit which his firm brought for the plaintiffs, and of which this suit is a renewal, was pending, the original lease was needed to make out the case, and he called on Padgett, who he learned had the paper at his office, and Padgett made a most diligent search through his papers, in which the witness assisted him, but they were unable to find it. This was about three years ago. He can not say whether Padgett has since found the paper, nor that he did not have other papers at some place in his office, nor that- it was not among some of the papers that Padgett looked over.</p> <p>The court then ruled out the alleged copy. The defendants, for, the purpose of this trial, admitted the damage to the timber, and that it was done "under their direction. The court granted a non-suit. Each of the rulings stated is assigned as error.</p>

<p>Action for damages. Before Judge Bennet. Ware superior court. November 6, 1900.</p>

<p>Action for damages. Before Judge Parker. City court of Baxley. November 16, 1900.</p>

<p>Indictment for assault and battery. Before Judge Janes. Haralson superior court. April 18, 1901.</p>

<p>Certiorari. Before Judge Hart. Greene superior court. March 14, 1901.</p>

<p>Petition for injunction. Before Judge Gober. Fannin superior court. March 11, 1901.</p>

Mandamus. Before Judge Candler. Fulton superior court. May.4, 1901. Executive warrants, regularly drawn upon the school fund, and countersigned, to the amount of $260,306.18, for the payment of salaries of teachers of the common schools of the State, were presented for payment at the State treasury on April 18,1901. The treasurer declined to pay more than $77,294.83, on the ground that there was in the treasury no fund over that amount available for this purpose.

<p>Complaint. Before Judge Spence. Dougherty superior court. October term, 1900.</p>

<p>Suit was brought in the county court of Pike county, and appealed to the superior court, and thence transferred by an order of the superior court, on consent of the parties, to the city court of Barnesville, where it was tried. The verdict was against the defendant, and he moved to arrest the judgment and to set aside the verdict and judgment, because, under the constitution and laws of the State, the city court has no appellate jurisdiction, and the superior court alone had jurisdiction to try the case. He moved also for a new trial on this ground, among others. To the overruling of these motions he excepted. (For the act establishing the city court of Barnesville, see Acts 1899, pp. 332, 347, sec. 48.)</p>

<p>1. A place once incorporated by an act of the General Assembly as a town will not become one of the cities of this State until there is a legislative enactment expressly declaring that such place is a city; and the mere fact that in different legislative acts referring to such town it is sometimes designated as a “ city ” will not make it a municipal corporation of the character indicated by that term.</p> <p>2. Valdosta having been incorporated as a town in 1860, and the act incorporating it as such having never been repealed, its existence as a town has not been affected by the numerous acts of the General Assembly referring to it as a city.</p> <p>3. This court has no jurisdiction of a writ of error sued out for the purpose of having reviewed a judgment rendered by .the city court of Valdosta.</p>

<p>1. A writ of error in an injunction case will not be dismissed upon the ground that the act sought to be enjoined has been completed, when the evidence offered by the defendant in error in support of his motion to dismiss is controverted in any way by the opposite party.</p> <p>2. The master of a ship has such a special property in the vessel and cargo that he may bring an action in bis own name, either at law or in equity, against one who wrongfully interferes with his possession of either.</p> <p>■8. When the master of a ship causes the same to be seized under an attachment in his own favor against the owner, such conduct will authorize the owner to terminate the employment; but until the employment is terminated by the owner, the master continues to represent him with reference to the vessel and its cargo, and may assert the rights of the owner against any one wrongfully interfering with either.</p> <p>4. It is essential to the validity of the levy of an attachment issued against a non-resident, that the entry of levy should show that the property was levied on as that of the defendant in attachment; and this is so whether the property be realty or personalty. In the absence of such a return, the court has no jurisdiction to order a sale of the property under the attachment.</p>

<p>Petition for certiorari. Before Judge Seabrook. Liberty superior court. January 21, 1901.</p>

<p>Petition for certiorari. Before Judge Seabrook. Liberty superior court. January 21, 1901.</p>

<p>Indictment for assault with intent to rape. Before Judge Henry. Floyd superior court. April 1, 1901.</p>

<p>. Indictment for assault with intent to murder. Before Judge Henry. Floyd superior court. March 26, 1901.</p>

Indictment for larceny. Before Judge Hart. Putnam superior court. April 15, 1901. Upon the trial of the plaintiff in error for stealing two bales of cotton, the testimony tended to prove the corpus delicti, the tracing of wagon-tracks from where the cotton was stolen to the premises of the accused, and the finding of the two bales, identified as the stolen ones, in an outhouse near the dwelling of the accused, where they were • covered with loose cotton.

<p>1. This court can not deal with the assignments of error made in an amendment fo a motion for a new trial which has upon .it an entry to the effect that it has been allowed by the trial judge, with nothing else to indicate an approval of its grounds.</p> <p>2. Where persons are accused of an affray and there is no evidence that the fighting occurred at a public place, a verdict of guilty is contrary to law.</p>

<p>Indictment for murder. Before Judge Eelton. Houston superior court. May 3, 1901.</p> <p>Romulus Williams was convicted of the murder of Adam Hunnicutt; and he excepted to the refusal of a new trial. They went to a frolic on the night of December 9, 1900. The defendant accompanied lizzie Ross in going there. Hunnicutt accompanied heron the way home after midnight; and they were followed by defendant and Bob Taylor. As these two overtook them, defendant-shot Hunnicutt in the back, and, as he turned round, shot him in the breast or the side. The defendant made a statement in which he set up, in brief, that Hunnicutt became angry with him for going to the frolic with Lizzie Ross; that when-he overtook them Hunnicutt ran his hand into his pocket after his knife, threatened defendant’s life, and started toward him; and that he shot Hunnicutt in self-defense. There was testimony that Hunnicutt made no attempt to draw a knife, nor did either of the witnesses see him have a knife; but that an open knife was taken from his pocket-after he was killed. The only special assignment of error is, that the court, in stating the contentions of the defendant, used this language: “that he accompanied it with the act of putting his-hand in his pocket as if to draw a weapon, and that it was dark and he (defendant) could hot see whether he was drawing a weapon or not; ” whereas the defendant did not contend that he could not see whether Hunnieutt was drawing a weapon or not.</p>

<p>1. Under section 220 of the Penal Code a tenant placed in possession of land by the owner is authorized to forbid a trespass upon the land by another.</p> <p>2. The words “cultivated land” in this section are not intended to apply to such land only as at the time has growing crops upon it. If it is actually prepared for a crop, or if it has been used for growing crops and the owner intends to again devote it, in due season, to such use, a trespass upon it may be punished under this section.</p> <p>3. The evidence warranted the verdict, and there was no error in refusing to grant a new trial.</p>

<p>1. The duty imposed by law upon all persons to.exercise ordinary care to avoid, the consequences of another’s negligence does not arise until the negligence-of such other is existing, and is either apparent, or the circumstances are-such that an ordinarily prudent person would have reason to apprehend its existence.</p> <p>2. Nailure to exercise ordinary care on the part of the person injured, before the-negligence complained of is apparent, or should have been reasonably apprehended, will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured.</p> <p>3. The evidence authorized the verdict, and the discretion of the trial judge in refusing a new trial will not be controlled.</p>

<p>Accusation of misdemeanor. Before Judge Proffitt. City court of Elberton. May 16, 1901.</p> <p>The affidavit on which ■ the accusation was based charged that Surrels did “commit the offense of misdemeanor.” The accusation charged “the offense of misdemeanor, for that” Surrels did “unlawfully have and carry about his person, concealed, and not in an open manner and fully exposed to view, a certain pistol.” After conviction a motion to arrest judgment was made, because the affidavit was void as stating no offense against the laws. The motion was overruled, and exception was taken.</p>

<p>The evidence fully sustained the verdict which was rendered. There was no error committed by the trial judge in charging the jury, which requires a reversal of the judgment. The issues made by the evidence were fairly submitted. The newly discovered evidence, when considered in connection with the testimony of the witnesses sworn in the case, neither requires nor authorizes the setting aside of the verdict of guilty rendered against the defendant. The charge as a whole was fair and full, and correctly stated the law governing the issues raised by the evidence, and there was no error in refusing to grant a new trial. Little, J., dissenting.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. May 10, 1901.</p>

<p>Indictment for murder. Before Judge Evans. Johnson superior court. April 20, 1901.</p>

<p>Indictment for murder. Before Judge Harris. Carroll superior court. June 7, 1901.</p>

<p>Indictment for selling crop under lien. Before Judge Adams. City court of Dublin. May 13, 1901.</p>

<p>Accusation of larceny from the house. Before Judge Adams. City court of Dublin. May 13, 1901.</p>

<p>Indictment for murder. Before Judge Candler. Campbell superior court. March 14, 1901.</p>

<p>Indictment for murder. Before Judge Candler. Campbell supe- - rior court. March 14, 1901.</p>

<p>Exceptions to auditor’s report. Before Judge Littlejohn. Schleysuperior court. July 16, 1900.</p>

<p>Mandamus. Before Judge Holden. Glascock superior court. March 30, 1901.</p>

<p>Accusation of larceny — certiorari. Before Judge Felton. Houston superior court. April 4, 1901.</p>

Indictment for selling liquor without license. Before Judge Harris. City court of Cartersville. April 30,-1901. An indictment was preferred for selling liquors in Bartow county without license. A plea of misnomer was filed, and was stricken on demurrer. The defendant also moved to quash the indictment, and the motion was overruled. He was tried and found guilty, and his motion for a new trial was overruled. He excepted to each of these three rulings.

<p>Indictment for concealed weapon — certiorari. Before Judge Hart. Greene superior court. March 14, 1901.</p>

<p>Indictment for selling liquor. Before Judge Adams. City court of Dublin. April 22, 1901.</p>

Indictment for assault with intent to murder. Before Judge Felton. Bibb superior court. April 18, 1901. Kendrick was convicted, upon an indictment for assault with intent to murder, of unlawfully shooting at another. He moved on the general grounds for a new trial, and he excepted to the denial of the same.

<p>1. The action being against four persons jointly, a judgment on demurrer dismissing it as to three of them is final in its nature, and may be brought to the Supreme Court by the plaintiff while the case is still pending in the court below as to the other defendant.</p> <p>2. Remaindermen, whether their interest be vested or contingent, may appeal to a court of equity to prevent the life-tenant from wasting and destroying the-corpus of the estate.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior-court. April 18, 1901.</p>

<p>1- A. mere statement in a brief of evidence that the plaintiff “ introduced in evidence the mortality and annuity tables in the seventieth Georgia Report ” does not authorize this court to take judicial cognizance of the contents of the tables published by the official reporter as an appendix to that volume. Simmons, C. J., and Lewis, J., dissenting.</p> <p>2. The right of the plaintiff in the present case to recover of the defendant was clearly established, and it does not appear that the verdict was excessive.</p>

<p>Injunction. Before Judge Reagan. Pike superior court. March 4, 1901.</p>

<p>Equitable petition. Before Judge Spence. Decatur superior court. November 22, 1900.</p>

Garnishment. Before Judge Sparks. City court of Brunswick. October 13, 1900. The Brunswick Grocery Company obtained a judgment against L. M. Russell, and had summons of garnishment served upon the Saint Paul Eire and Marine Insurance Company.

<p>1. It is, on the trial of an issue of devisavit vel non, competent for a caveatrix to support a contention that she was the next of kin of the decedent by proving declarations to that effect made by the latter while in life. This case is distinguishable from that of Greene v. Almand, 111 Ga. 735.</p> <p>2. The instructions with respect to undue influence were not unwarranted, and the finding of the jury was sufficiently supported by testimony.</p>

<p>Motion, to establish, copy of will — appeal. Before' Judge Candler. DeKalb superior court. August 15, 1900.</p>

<p>Complaint. Before Judge Evans. Emanuel superior court. October 16, 1900.</p>

Action on.insurance policy. Before Judge Evans. Tattnall superior court. October 3, 1900. Sarah E. DeLoach sued the Planters and Peoples Mutual Fire Association of Georgia, upon a policy of fire-insurance. The case was tried by the judge without a jury, and he gave judgment for the plaintiff for $168.75 principal, and costs.

<p>Upon the application of the heirs at law, the lands of a deceased intestate were> appraised and divided under the Civil Code, § 3480. By the judgment of the court the heir drawing a certain lot was required, before taking possession,, to pay a named amount of money to the other heirs to make them equal. This-heir was already in possession of the lot set apart to him, and was allowed to. remain in possession upon giving notes to the others for this amount, secured-by mortgage upon his lot. Subsequently he died, leaving the notes unpaid. His widow applied for a year’s support, and all of the lot was set apart to. her ; whereupon the mortgagees filed a caveat to the return of the appraisers-setting aside the year’s support. EM, that the mortgage, having been given upon the whole lot for the purchase-money of an undivided interest in it, was. a purchase-money mortgage ; and that the right of the widow to a year’s support in the lot was inferior to the lien of the mortgage and to the caveators’' lien for owelty of partition.</p>

<p>Petition for injunction. Before Judge Brinson. Taliaferro, superior court. March' 13, 1901.</p>

<p>Complaint for land. Before Judge Brinson. Richmond superior court. October 22, 1900.</p>

<p>Exceptions to auditor’s report. Before. Judge Estes. Haber-sham superior court. September 12, 1900.</p>

<p>Equitable petition. Before Judge Estes. White superior court. October, 1900.</p>

<p>Equitable petition. Before Judge Estes. Hall superior court. January 30, 1901.</p>

<p>Conviction of manslaughter. Before Judge Felton. Bibb superior court. June 20, 1901.</p>

<p>1. Notice given by the municipal authorities that an election will be held in a named city on the question of issuing bonds by that city, which contains no information as to the amount of the bonds sought to be issued, or of the purpose for which the proceeds thereof are to be used, save as expressed in the following language : “ Said bonds to be known as ‘ School and City Improvement Bonds,’ and to be issued to the aggregate amount of $25,000.00, in denominations of from $1,000 to $5,000 each, as purchasers may desire, and not more than $20,000 of the amount realized therefrom to be used for the purpose of building and erecting a schoolhouse, and not more than $5,000 for the purpose of enlarging and improving the light and water plant of said city, and the surplus, if any, to be used by the mayor and council in such other manner as they may seefit,” does not meet the legal requirement that a notice of this character shall “ specify what amount of bonds are to be issued, [and] for what purpose.”</p> <p>2. Before a judgment validating bonds sought to be issued by a municipal corporation can lawfully be rendered, sufficient facts affirmatively showing that such issue was sanctioned by two thirds of the qualified voters of such municipality must appear.</p>

<p>1. While a jury trying a ease should give to the evidence of a witness only the weight to which it is, in their opinion, entitled, yet they can not, in the determination of the issues involved, because of the fact that a particular witness-was in the employ of one of the parties, arbitrarily disregard his testimony ; and a proper request to (in effect) so charge should not have'been refused.</p> <p>2. To entitle the’defendant to the opening and conclusion of the argument in. the trial of a case arising ex delicto, when the act complained of was not one’ which, under the law, could be justified, it is necessary that the defendant by proper pleadings admit, not only the commission of the act which it is alleged, was wrongful, but also such other facts as would entitle-the plaintiff to have-a verdict, without proof, for the amount claimed in the petition.</p> <p>3. In the trial of an action brought to recover damages against a railroad company for- injuries sustained by the running and operation of a train of cars,, it was error to charge in such manner as to convey to the jury the impression that if they should believe that both the company and the person injured were-equally negligent, the plaintiff could recover.</p> <p>4. In an action instituted by a widow for the homicide of her husband, caused by the negligent operation of a train of cars by a railroad company, evidence’ going to show that the deceased, at the time he was killed, left no estate or property was inadmissible.</p>

<p>Injunction and receiver. Before Judge Roberts. "Wilcox superior court. May 16, 1901.</p> <p>Alfred K. Fisher conveyed certain lots of land owned by him to Sherwood, as security for a loan of $5,000, and received from Sherwood a bond to reconvey on payment of the debt; and Sherwood conveyed the land to the American Freehold Land Mortgage Company Limited, subject to Fisher’s rights under his bond. Fisher assigned to Graham the bond to reconvey, and executed to him a deed to the land, in consideration of $7,500; Graham paid the Mortgage Company the amount due it, and received from it a conveyance of the land to himself; and Fisher made a contract with him for the purchase of the property and gave him notes for the purchase-money. In a suit on these notes, a verdict and judgment against Fisher, which set up a special lien on the land, were taken by Graham in accordance with a written agreement between the parties, in which agreement it was stipulated that the judgment should be enforced only in a manner stated in the agreement. Under this agreement the debt was to be paid in four instalments, due respectively on specified dates in the years 1896, 1897, 1898, and 1899; on failure to pay the first instalment when due, the plaintiff was to have at once the right to levy on and sell certain lots (the numbers of which were given); in case of failure to pay the second instalment when due, the same right was to exist as to certain other lots; and similar provisions were made as to the third and fourth instalments. The first instalment was nob paid at maturity, and Graham filed and had recorded a deed from himself to-Fisher to the lots designated by the contract as-subject to levy and sale on failure to pay that instalment, and caused an execution based on the above-mentioned judgment to be levied on them; but-a sale was prevented by payment of that instalment. The instalment due in 1897 was not paid, and Graham filed and had recorded a deed to Fisher to lots designated by the contract as subject to-levy and sale on failure to pay the instalment then due, and caused his execution to be levied on those lots. To this levy a claim was-interposed by Mrs. Fisher, the wife of the defendant; the claim was accepted by the sheriff and returned to the superior court, and the* sale was postponed. The instalment due in 1899 was not paid when due, and Graham pursued as to this instalment the same-course as that pursued in regard to the instalments due in 1896 and 1897, except that the lots reconveyed for the purpose of levy and. sale, and levied on, in this instance were selected without reference-to the stipulation above mentioned, which designated certain lots as subject to levy and sale in connection with particular instalments. To this levy the defendant interposed an affidavit of illegality, on the ground that the levy was in conflict with the contract under which the judgment was taken. The affidavit of illegality was returned to the superior court, and the sale was postponed.</p> <p>■ In April, 1901, Graham presented to the judge of the superior-court his petition setting out the facts above stated, with copies-of the contracts referred to, and charging waste on the part of Fisher and of others to whom Fisher had sold timber growing on the land in question, and the privilege of cutting and boxing trees for turpentine purposes; also that the claim interposed by Mrs. Fisher was frivolous and fraudulent, and was filed for the purpose of delay ; and that the affidavit of illegality filed by Fisher was filed for the same purpose. He alleged that the affidavit of illegality had ■ been dismissed by the court for insufficiency, and that the affiant’s, attorney had given notice that he intended to file a-bill of exceptions to that judgment, the effect of which would be to postpone - for a long time the enforcement of the plaintiff’s judgment and seriously injure him; that Fisher, was using the income from the-property and profiting-from acts of waste, which were' in progress; that the amount due on the judgment was about $13,000, .and was increasing; that Fisher and his wife were insolvent; that the land in question was insufficient as security for the debt, and if sold at sheriff’s sale would not sell for enough to pay off the execution; and that it was necessary for the plaintiff’s protection to impound the rents and income arising from the land. He prayed for the appointment of a receiver to take charge of the land and to ■collect and hold the rents; that a commissioner be appointed to sell the property, and especially that embraced in the levy to which the affidavit of illegality had been imposed, and under such terms as would fully protect the rights of all parties concerned; .and for an injunction against the cutting and boxing of the timber, and any other acts of waste on the land, and against the making of any conveyance of the land. Fisher, his wife, and Collins and Galloway were made defendants to the petition; the latter two being persons to whom it was alleged that Fisher had conveyed turpentine privileges.</p> <p>Fisher and his wife were the only defendants who opposed the granting of the petition. He demurred as follows: (1) The petition sets forth no cause of action. (2) The contract which was the basis of the plaintiff’s original suit stipulated for him to have a certain security, which he has, and the effect of the present suit is simply to ask the court to give him greater security than that contracted for. (3) The present suit is an effort to enforce the judgment in a manner different from that provided for in the contract -on which the judgment was based and which provided how it should be enforced. (4) It appears from the petition and the exhibits attached to it that the land is worth double the amount of the plaintiff’s demand, and the allegation of insolvency is therefore irrelevant ; and the plaintiff has an adequate remedy at law. Mrs. Fisher ■demurred as follows: (1) The petition sets forth no cause of action •as against her. (2) It shows that she has given the bond required by law in cases of claims filed to land levied on; and the plaintiff, therefore, has an adequate remedy on the bond by an action at law. (3) She is entitled by statute to a trial at law on the merits of the ■claim filed by her, and the plaintiff can not forestall or preclude such a trial by reason of any alleged equity he may have as against .any other person.</p> <p>Fisher in his answer admitted that he had leased to Galloway timber on a part of the land for turpentine purposes, but denied that it was a considerable part of the land. He denied the allegation of insolvency, and alleged that the land was worth more than thrice the amount of the plaintiff’s demand. He denied the.allegations as to a purpose to defraud and delay the plaintiff. He contended that as there was a supersedeas in the case of the affidavit of illegality, by reason of the filing of a bill of exceptions in that case,, and an affidavit as provided by the Civil Code, § 5552, par. 3, no further proceeding could be had to enforce the levy of the. execution, and the plaintiff could not maintain the petition, it being merely an equitable proceeding in aid of the levy. The court, after hearing evidence, granted an injunction against any interference with the land on the part of the defendants, and appointed a receiver for the purpose stated in the petition. Defendants A. K. and Mary Fisher excepted. The evidence was directed mainly to the question of insolvency and that of the value of the land.</p>

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

<p>Complaint. Before Judge Reid. City court of Atlanta. September 29, 1900.</p>

<p>1. Under the rule laid down in Karris v. Central Railroad Co., 78 Ga. 626, when a petition against two railroad companies charges that the plaintiff’s husband was killed, on a designated public crossing, by a passenger-train of the defendants, in consequence of the negligence of the defendants in divers named particulars, an amendment which alleges that, “without reference to whether the deceased was killed on or off the crossing, . . he was visible on the track in the direction from which the train was coming at least 300 yards, and after the danger of the deceased became, or in the exercise of ordinary care should have become, apparent to the defendants’ employees in charge of said train, such employees failed to exercise ordinary care, failed to give warning, failed to cheek or slow up, and thereby were guilty of gross - and wanton negligence,” does not introduce a new cause of action.</p> <p>2. Where a juror was excused for providential cause and one of the parties consented that the trial should proceed before the remaining eleven jurors, such party can not complain that, before making such consent, the court had overruled a motion for a mistrial, the right to make such complaint not having been reserved.</p> <p>3. A witness can not be impeached by proof of contradictory statements without laying the foundation for the same, by calling his attention “ with as much certainty as possible to the time, place, person, and circumstances attending the former statement.” This rule is not varied where the testimony of the witness was taken by depositions and the alleged contradictory state- . ments made afterwards and before the trial.</p> <p>4. Admitting immaterial testimony is not necessarily cause for-a new trial.</p> <p>5. The foregoing notes cover all of the questions made in the grounds of the motion for a new trial requiring special mention. The charges complained of, even if not in all respects accurate, contained nothing which could have operated prejudicially to the defendants ; the evidence, though decidedly conflicting, warranted a finding that the plaintiff’s husband was killed by a train operated by the defendants, in consequence of the negligence of the employees in charge of the' same; and there was no abuse of discretion in refusing to' grant a new trial.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. December 17, 1900.</p> <p>Berger sued J. Saul & Company, alleging, in brief, that on November 17, 1898, the defendants instituted against him, in a justice’s court, an action of bail-trover, and, maliciously intending to injure him, made an affidavit for bail, and procured an order for his arrest, and had him imprisoned in jail from that date until December 16, 1898, when the case was decided in his favor and judgment rendered discharging him from imprisonment; that the defendants made the above-mentioned affidavit for the purpose of securing his arrest and incarceration, knowing that he was poor and -unable to give bond; that in so doing they acted maliciously and without probable cause; that the bail-trover proceeding has been •finally determined in his favor; and that by reason of the premises he has been damaged in a stated sum, for which he sues. For further cause of action he alleged that the defendants imprisoned him in the common jail of the county and deprived him of his liberty for thirty days, unlawfully and without probable cause, and not in ■good faith, by virtue of the pretended action of bail-trover; that the bail-trover suit was maliciously instituted; and that he was thereby damaged, etc. The defendants in their answer denied the allegations as to malice and want of probable cause, and denied that the action was decided in favor of Berger. They alleged that it was pending, on appeal, in the superior court. On the trial of the present case the defendants, at the conclusion of the evidence introduced by the plaintiff, moved for a nonsuit, on the grounds that it was not shown that the bail-trover proceeding was ended; and that there was probable cause for instituting the proceeding.. The court granted the motion, and the plaintiff excepted. From the evidence it appears that the goods sought to be recovered in the bail-trover proceeding were sold by Saul & Company to Berger' on credit, and that he acquired title to the same; that Berger had disposed of the goods before the institution of the trover proceed" ing, and that Saul & Company had been informed of this fact. It further appears that Berger applied, under the provisions of Civil Code, § 4608, for a discharge from imprisonment, and that the jus-; tice before whom the application was brought rendered a judgment refusing the application and recommitting Berger to jail.</p>

Complaint. Before Judge Reid. City court of Atlanta. January 29, 1901. Giovanni Ferrarlo sued H. H. Smith & Company, alleging that the defendants as partners, a firm composed of H. H. Smith and A. N. Ivancich, were indebted to him on three promissory notes, copies of which, were attached to the petition.

Equitable petition. Before Judge Lumpkin.' Pulton superior court. January 18, 1901. Held: secured by the mortgages, and the deed recited that it was executed for the purpose of avoiding further expense and a forced sale of the property. On April 12, 1897, the American Trust and Banking Company conveyed the premises, by warranty deed, to Woodside.

<p>Levy and claim. Before Judge Lumpkin. Eulton superior court. October 20, 1900.</p> <p>An execution based on a judgment rendered in 1899 in favor of William S. McCord against John A. Wright was levied on certain land as the property of the defendant, and a claim was interposed by W. A. Wright. At the trial a verdict that the property was subject was rendered, by direction of the court. The defendant made a motion for a new trial, on the grounds that the verdict was contrary to law and the evidence, and that the court erred in directing the verdict, because the evidence did not show title in the defendant before the judgment, nor possession after the judgment. The motion was overruled and the movant excepted. The plaintiff introduced the execution, and three deeds to the land in dispute, one to John A. Wright, dated in 1888 and recorded in 1889, one a loan deed from John A. Wright to William S. McCord, dated and recorded in 1897, and one from William S. McCord to John A. Wright, made for the purpose of levy and sale, and recorded prior to the levy to which, this claim was interposed; also two bank checks dated in June, 1897, signed by Charles Whitefoord Smith, one payable to John Á. Wright and indorsed John A. Wright and W. A. Wright, and the other payable to H. M. Atkinson and indorsed H.' M. Atkinson. Charles W. Smith testified as follows: “W. A. Wright told me that the property was his brother’s, and he never intimated that the property was his until long after the loan deed had been made and a default in the interest. Application for the loan was brought to me by C. N. Allen and W. A. Wright. W. A. Wright told me that he represented John A. Wright, who lived in DeKalb county. The application had already been handed me, signed up, and I suppose it had been signed by John A. Wright, as his name was signed to it. Part of the money was paid to H. M. Atkinson, who held the prior mortgage on the property. The balance going to John A. Wright was paidin a check payable to his order. I never heard of W. A. Wright claiming any interest in the property until long after loan deed had been made and a default in the interest.” The claimant testified: “ When I made the application through C. N. Allen, I bought the property and paid every dollar of the purchase-price for same. The property was vacant when I bought it, and I built all houses on lot. I paid all taxes on same, repairs and insurance. John A. Wright was never in possession of the said property. I signed the name of John A. Wright to the application, believing that I had the right to sign it. I never told Mr. C. W. Smith that I signed it, because I did not think it necessary.”</p>

<p>Petition for injunction. Before Judge Fite. Fulton superior court. April 4, 1901.</p> <p>This was a petition to restrain tbe enforcement of an execution-for city taxes for -tbe year 1900' on realty in Atlanta owned by the Gate City Guard and used by the owner for an armory. The city denied that the property was exempt from taxation, and alleged that, although the upper part of the armory building was used principally for the purpose above stated, the first floor of the building' was used wholly for purposes of income, being rented for storerooms, and that the part used for an armory was sometimes rented. It was admitted that the plaintiff, the Board of Trustees of the-Gate City Guard, is a corporation under the laws of this State, and holds for the Gate City Guard the property described in the petition ; and that the Gate City Guard is a military organization chartered under the laws of this State and duly enlisted and mustered into the service of the State, and subject to military service, as prescribed in the laws for the government of the State troops. The-statement of facts in the decision in Cummings v. Hollis, 108 Ga. 402, was assumed to be true. The treasurer of the plaintiff testified that the company had never derived any benefit from the armory except its use as an armory, all income from the building-being devoted to paying off the interest on the debt due for the building and for the uniforming of the company, which debt was continually increasing until the year 1900, when it amounted to-$17,000; and that up to that year the State had furnished no uniforms for the company, but they were furnished at great expense-by the company itself, thus gradually increasing the debt.</p> <p>The court refused an injunction, and the plaintiff excepted.</p>

<p>1. An answer in the nature of a cross-bill which sets up matters of defense not-germane to the case made by the plaintiff’s petition is not maintainable.</p> <p>2. In view of the pleadings filed in the present case, and of the facts disclosed on the hearing thereof, the trial judge gave to it the proper direction.</p>

<p>Under the general rule of construction, a will whereby property is given to the named “ children ” of A., to the named “ heirs ” of B., and to C., with provision for an “ equal division,” must, when there is nothing to indicate acontrary intention on the part of the testator, be so interpreted and carried into effect as that the beneficiaries shall take per capita and not per stirpes.</p>

<p>1. By a deed executed in 1864, realty was conveyed to a husband “ for the use, benefit, and advantage in trust of [his wife] for life, exempt from the marital rights of [himself or any future husband], for her sole and separate use, and on her decease to such child or children as she may have in life.” Held: (a) That the trust for the life-tenant was executed by the “married woman’s law ” of 1866, or became executed as soon after its enactment as she attained her majority. (6) That no trust at all was created for the children of the life-tenant, but that they took as remaindermen a legal and not an equitable estate.</p> <p>2. This case as presented is controlled by the ruling above announced, from which it results that the judgment excepted to was erroneous.</p>

<p>Action for damages. Before H. D. D. Twiggs, judge pro hac vice. Emanuel superior court. December 31, 1900.</p> <p>On June 11, 1861, L. Carlton Belt died leaving a will bearing the same date, the material part of which is as follows: “ I give, devise, and bequeath the whole of my estate, real and personal, to my wife, Elizabeth T. Belt, during her widowhood to be absolutely under her control and management, as it is now under my own, being perfectly willing to trust my children to her care and her bounty. In the event of the marriage of my said wife after my death, then I'wish my property to be equally divided between her and my children who may be then in life, share and share alike, including the natural increase of the slaves, but not the income of the property during her widowhood; it being my expectation that she shall not be held to any account for any income or any alleged waste or mismanagement. Should my said wife remain in widowhood during the term of her natural life, she is to have control, management, and interest, as above specified, until her death, at which time I will and direct that it be divided equally, share and share alike, among my three surviving children, and the children {if any) of such as may have died before her, the latter to take per stirpes, to them and their heirs forever.” In 1863 Mrs. Belt, individually and as executrix, conveyed large tracts of land of the estate to persons under whom the defendants to the present action hold, this action having been brought by two children of the testator to recover damages resulting from the boxing of timber on some of the land. Mrs. Belt qualified as executrix, and assented to the legacy. She is still in life, and the plaintiffs are her only children. She has remained a widow ever since the testator’s death. The defendants and those under whom they claim were in possession of the land for more than seven years before this suit was filed. Upon these facts the case was submitted to the trial' judge without a jury. He rendered judgment for the defendants, and error is assigned thereon.</p>

<p>Equitable petition. Before Judge Brinson. Bichmond. superior court. October 15, 1900.</p>

<p>1. Personalty, such as bricks and lumber, when used in building a house upon land becomes realty and constitutes a part of the land. If the house is destroyed by an accidental fire and the bricks and other debris fall upon the land, they still remain a part of the realty if the owner does nothing to show an intention to sever them’and convert them again into personalty. In such a case the owner can not remove them from the land after a sale of the land to another, nor hold the vendee accountable for them.</p> <p>2. Money judgments bear interest from their dates. Where two parties disagree as to the amount to be paid under a contract of sale, as recited above, and the vendee files an equitable petition against the vendor, on the trial of which it is adjudicated that the vendee pay to the vendor a certain sum, greater than that tendered in court but less than that claimed and demanded by the vendor, it is the right of either party to have the decree entered up. If the vendor neglects to have the decree entered for the amount found in his favor, and the plaintiff also neglects to have this done until more than a month after the verdict, the amount found by the jury bears interest only from the date of the decree, and not from the time of the rendition of the verdict.</p> <p>3. In equitable proceedings it is the duty of the judge to determine who shall pay the costs. This discretion, vested in the judge by the Civil Code, .§ 4850, can not be interfered with by this court unless it is manifestly abused. It does not appear to have been abused in the present case.</p>

Petition for injunction. Before Judge Brinson. Burke superior court. February 21, 1901. The parties to this case- entered into the following contract: “ Georgia, Burke County.- . This contract, made and entered into-this the 5th day of July, 1899., between R. C. Neely, landlord, and Mrs. Mattie 0.

Equitable petition. Before Judge Brinson. Richmond superior-court. April 24, 1901. It appears from the record that Andrew M. Moore, a resident-of the State of Pennsylvania, died in the year 1898.

<p>Petition for injunction. Before Judge Falligant. Chatham superior court. June 8, 1901.</p>

<p>Equitable petition. Before Judge Felton. Crawford superior court. October 17, 1900.</p>

<p>Equitable petition. Before Judge Russell. Banks superior court. January 8, 1901.</p> <p>Under an order of tbe court of ordinary, Scales, administrator of tbe estate of Crow, advertised for sale at public outcry certain tracts of land belonging to tbe estate, and at tbe sale the auctioneer, Owen, knocked down to Chambers a tract of about 108 acres for $565, tbe amount of bis bid; but tbe administrator refused to consummate the sale, and later on the samé day caused the lot to be again offered for sale, and it was then knocked down to one Farr for $1,000. The second sale was made over the protest of Chambers, who offered to pay the amount at which the property had been knocked down1 to him, and who made known his objections publicly at the second sale. By an equitable petition against the administrator and against Farr, he alleged that the first sale was fair and legal, and that the second sale was a fraud on him, and was made in order that Farr might be the purchaser. He prayed for .specific performance, for an injunction to prevent the administrator from making a deed to Farr, etc. The defendants answered that the land in question was knocked down to the plaintiff in pursuance of a wrongful and fraudulent combination between the crier and the plaintiff; that the price at which it was knocked down to him was less than half its value; that it was knocked down to him suddenly, unexpectedly, and without time or opportunity for bidders to consult or consider; that, immediately after it was knocked ■down, statements were made declaring the sale to be unfair, and the administrator protested instantly against the conduct of the crier and directed him to resell the property. The allegations as to fraud on the part of the defendants were denied. The trial resulted in a verdict for the plaintiff. The defendants excepted to the overruling of their motion for a new trial. The grounds of the motion are, that the verdict was contrary to law and the evidence, and to a specified part of the charge of the court, and that the court refused to allow defendants to prove by the witness Scales that, when the property was knocked off to the plaintiff, Scales would have bid more than plaintiff’s bid, and intended, unless he could buy it for less, to bid up to $1,800 for the property, had it not been knocked off. The court ruled that this evidence was matter of opinion, and immaterial.</p>

<p>Appeal. Before Judge Jones. Habersham superior court. September, 1900.</p>

<p>1. “ Gittings ” and “ Giddans ” are idem sonans.</p> <p>2. An accusation for gaming “ with cards and dice ” need not more particularly than as indicated by the words quoted describe “the game played or the manner of playing samé.”</p> <p>3. The evidence in the present case did not support the accusation.</p>

<p>The filing of a remittitur from the Supreme Court in the office of the clerk of a trial court immediately reinvests it with jurisdiction for all purposes over the case to which such remittitur relates, though good practice requires that the trial court cause the remittitur to be entered upon its minutes.</p> <p>(a) If, where a new trial has been granted by the Supreme Court, the remittitur is not so entered before the new trial is had, it is proper to pass a nunc pro tunc order directing that the remittitur be entered as of the date when that trial began.</p> <p>(b) While the practice of promptly having remittiturs entered upon the minutes of trial courts should be followed, and in so doing trial courts should pass such orders as are appropriate to effectuate the judgments of the Supreme Court, an order formally making a judgment of that court the judgment of the trial court is not an indispensable prerequisite to proceeding with a new trial when, under the judgment of the Supreme Court, a new trial is to be had. Little, J., dissenting.</p>

<p>1. The city court of Griffin being a court from which writs of error lie direct to-the Supreme Court, and the act establishing the city court creating the office of solicitor thereof, and providing in effect that he shall represent the State in all criminal cases prosecuted in that court, it is his duty to represent the State-in the Supreme Court in criminal cases brought there from the city court. The case of Cooper v. State, 103 Ga. 405, upon a review thereof, is affirmed.</p> <p>2. An accusation charging that the accused falsely represented that another had promised to pay for goods sold and delivered to the former is not supported by proof showingmerely that the accused falsely represented that another had promised to become security for the payment of the goods.</p>

<p>1. A bill of exceptions -which recites that “ at the April term, 1901, of the city-court of Bainbridge, his honor B. B. Bower, judge of said court, presiding,” a designated case came on to be tried and was tried, and which is duly certified by the judge named, sufficiently shows that the case was tried in the city court of Bainbridge, in the State of Georgia.</p> <p>2. The control of a minor bastard child who has not been legitimated by his father belongs exclusively to his mother ; and even if he could, where she abandoned him, or refused to support hipi, make a valid contract of service with another, he certainly can not against her consent do so when she has neither abandoned nor refused to support him.</p> <p>3. It results, from an application of the principle laid down in the note immediately preceding to the facts of the present case, that the verdict of guilty was contrary to the evidence.</p>

<p>The act of December 16, 1897, “ to amend section 413 of the Penal Code” of this State, is not unconstitutional in that it “ contains matter different from, what is expressed in the title thereof.”</p>

Appeal. Before Judge Reagan. Spalding superior court. August 15, 1900. The suit originated in a justice’s court.

<p>Foreclosure of lien. Before Judge Calhoun. City court of Atlanta. July 7, 1900.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. September 24, 1900.</p> <p>Roughton alleged that the city had damaged him by reason of the-following facts: On a given day the defendant changed the grader and “filled in” on a designated public street in its charge and control, in the city, on which was the plaintiff's lot, where he resided, and it made a fill on the front end of his lot and fence about four feet, and damaged the lot and the fence in a sum stated; and, having made the fill, the defendant undertook to jack up his house to come above the fill, and did so, about four or five feet, so that the house' was about eleven or twelve feet from the ground in the rear of it. In raising the house the timbers in it were torn loose and disturbed, the plastering broken, and the roof made to leak; whereby the house was damaged in a stated sum. The making of the change in the lot and the house rendered the place unfit for occupancy as a home, and its rental value was thereby destroyed, thus damaging him in a sum stated. To the allegation that the defendant undertook to jack up the house, etc., the plaintiff added, by amendment, that the defendant entered on his premises and undertook to do this without his knowledge or consent. He alleged also, by amendment, that the ■defendant ratified and adopted as its own the acts of its agents and ■employees in raising the house, after it was done, and by so ratifying became liable to pay all damages arising therefrom; also that .it ratified these acts by paying for them. The petition was dismissed on general demurrer, the court holding that the acts complained of were ultra vires.</p>

Foreclosure of mortgage. Before Judge Lumpkin. Fulton superior court. October 3, 1900. A mortgage of Mrs..Doggett to Simmons was dated May 23, 1894, and was security for a note of that date for $651.67 andinterest from date. The note and mortgage were transferred to the bank after maturity.

<p>Complaint. Before Judge Reid. City court of Atlanta. November 3, 1900.</p>

<p>Garnishment, etc. Before Judge Lumpkin. Fulton superior ■court. October 13, 1900.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. November 24, 1900.</p>

<p>1. Allowing an amendment good in substance to an answer will not by the Supreme Court be held erroneous, when it does not appear that any valid objection to its allowance was presented to and passed upon by the court below.</p> <p>2. Unless restricted by statute, the parties to a partnership may give thereto such name as they please, even one that is purely fanciful. A disregard of the rule here stated led to the commission of divers errors in the present case.</p> <p>3. When in a petition against a partnership it is alleged to be composed of Mrs. J. G. G. and Mrs. J. L. S., a return thereon by the sheriff that “ the defendant J. L. S.” is not to be found indubitably refers to Mrs. S.</p> <p>4. When an offered amendment to an answer does not, even if taken alone or in connection with the answer, contain any good defensive matter, there is no-error in refusing to allow it.</p>

Action for damages. Before Judge Calhoun. City court of Atlanta. November 20, 1900. The damages were alleged to have been sustained by reason of the flooding of the plaintiff’s land in Atlanta with surface-water from rains, etc., within four years next before the filing of the suit, in consequence of the manner in which the city had, more than four years before suit, graded the surrounding streets and constructed the drainage in that locality.

<p>Injunction. Before Judge Bennet. Ware superior court. May 4, 1901.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. September 21, 1900.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. November 19, 1900.</p>

<p>1. Where an owner of propertyrwhich was destroyed by fire had taken out a. number of insurance policies on the same, each of which contained a “ mortgage clause,” making the insurance payable to a mortgagee of the property, and the full value of the property destroyed was paid to such mortgagee by some of the insurance companies, such owner thereafter had no right of action against another insurance company, even if before such settlement of the-loss it may have been liable to him upon its policy.</p> <p>2. If a plaintiff himself has no legal right to bring a particular action, he can not sustain the same by amending his petition so as to sue for the use of another party.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta December 11, 1900.</p> <p>This action was on a note dated February 25, 1896, by which Smith et al. promised to pay to the plaintiff corporation $2,000 on or before 125 months after date, with interest from date, payable quarterly, and agreed that, in case of failure to pay promptly at maturity any of the quarterly instalments of interest, the holder of the note should have the right to declare the note due and collect it by suit. The note contained also the following stipulations: “ The maker or makers hereof further agree that in order to provide for payment of this note at its maturity, that they shall apply for and accept 14 bonds of five hundred dollars each . . in the U. S. Bond and Mortgage Company of Atlanta, Ga. The makers hereof agree to pay the several instalments due on each bond as required by the terms and conditions of said bond; and in the event that there is a default in the payment of the instalments due on either one or all of the said bonds for ninety days as provided for in said bond and the said bond or bonds shall thereby become lapsed, then the owner or holder hereof at his option may declare the full amount of this note, principal, interest, and attorneys fees, due and payable. In no event shall this note become due prior to the stipulated time of its maturity if the makers hereof shall promptly pay at maturity the several interest instalments due-on this note, and also the several instalments due on the bonds-heretofore mentioned as security for this note. In consideration of the premises hereinbefore set forth, the Georgia Loan, Savings- and Banking Company has agreed with the makers hereof to accept the 14 bonds heretofore mentioned, at their maturity, in full settlement of this note; provided that all of said interest instalments and instalments due on each bond have been paid promptly at their maturity.” The suit was filed April 11, 1899. The petition alleged that the defendants were indebted to the plaintiff $2,000 principal, and interest from the date of the note, except the-first quarter’s interest, and prayed judgment for the amount of the' debt. The defendants filed a plea in which they denied the alleged indebtedness, and made the following allegations: “ Plaintiffs officers have changed since the note attached to the declaration was made. The company, under its new officers, has never agreed to carry out or comply with said note or contract; on the contrary, it declines to do so. The defendants have always been ready and willing to carry out said contract, and are now ready and willing to carry out said contract and pay any interest due petitioner.” The-court struck this plea, and directed a verdict against the defendants for principal and interest as sued for. The defendants excepted.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. November 26, 1900.</p>

<p>' Complaint for land. Before Judge Lumpkin. Eulton superior •court. January 29, 1901. ■</p>

<p>Complaint on account. Before Judge Reid. City court of Atlanta. January 15, 1901.</p>

<p>Complaint on account. Before Judge Beid. City court of' Atlanta. January 15, 1901.</p>

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. January 28, 1901.</p>

<p>1. One who bases a claim to land upon the proposition that he purchased it at an administrator’s sale is not injured by evidence tending to show that the latter’s intestate was, at the time of his death, the owner of the land.</p> <p>2. A deed purporting to be that of a business corporation, and to have been executed in the corporate name by the president of the corporation, is, if the corporate seal be attached thereto, prima facie valid. Where such a deed was offered in evidence and admitted over objections that it did not appear that the party signing it as president of the corporation was in fact such president, or that he had authority to execute the paper,it does not affirmatively appear that any error was committed in admitting the paper, when the record is silent as to whether it had or had not the seal of the corporation attached to it.</p> <p>3. Agency can not be proved by the declarations of the alleged agent.</p> <p>4. It does not appear that any error prejudicial to the plaintiffs in errorwas committed in admitting in evidence the record of a case to which they were not parties ; and the action of the court in directing the verdict in favor of the plaintiff in execution was not, for any reason assigned, erroneous.</p>

<p>Action for damages. Before W. W. Larsen, judge pro hac vice. Emanuel superior court. October 20, 1900.</p>

<p>Action for damages. Before Judge Evans. Emanuel superior court. October term, 1900. .</p> <p>The widow of Corley sued Coleman & Ellison for damages resulting from his homicide; and the action was dismissed on general demurrer. She alleged that the defendants in their sawmill business operated a railroad, not chartered, for the purpose of transporting logs and lumber to and from the mill, as well as their employees to and from the mill and the woods. This railroad had been operated about three years, but the way through the dense woods had been cleared but a very few feet more than the space occupied by the roadbed. The defendants negligently permitted a rotten, boxed, and dangerous pine tree, about two feet in diameter, to stand within twelve feet of the road-bed, and on .the night of September 25,1899, it fell across the railroad-track. The defendants’ rules required their employees to report at four o’clock in the morning, to be conveyed on the railroad-train to the woods; and Corley so reported for duty on the morning of September 26,1899, and he and other employees went upon the engine and a fiat car which was pushed by the engine running backwards. Corley with other employees was sitting on the car when it was ran against the log lying across the track, whereby a wreck ensued and he was instantly killed. The wreck was not the result of his negligence. He did not know of -the pine tree or its condition, nor was it his business to work on the railroad or to investigate its condition. Nor was the wreck the result of the negligence of any of his fellow-servants. But the defendants were guilty of negligence which was the proximate cause of the wreck, in that they knew or should have known that the way was not cleared out sufficiently far away from the road-hed to in•sure safety in running the train at night; that the pine tree stood as already described, and subject to fall across the track at the slightest gale; that it was impossible to run the engine out forwards on said road; that the engine had no headlight; and that it was dangerous to the lives of their employees, and unreasonable under the foregoing circumstances, to order them out in the night over said road to the woods. At the time of the wreck the train was running at an ordinary and reasonable rate of speed, and the darkness was so dense that it was impossible to discover the obstruction before it was struck.</p>

<p>Complaint for land. Before Judge Evans. Bulloch superior court. December 6, 1900.</p>

<p>The officers of the superior court have no lien or claim, on account of insolvent costs due them in cases transferred from the superior to the county court, upon fines in the county treasury arising in the county court upon other cases transferred from the superior court.</p>

<p>The question whether a local legislative act passed in 1881 is for any reason unconstitutional is not properly raised by a general statement that “ said act is in conflict with the general law of 1877.”</p>

<p>Petition for injunction. Before Judge Evans. Screven superior court. May 6, 1901.</p> <p>The plaintiff is conducting a sawmill and timber business on the Savannah river in Screven county, and in connection therewith he operates a tramroad, propelling his cars by horse-power. The defendant corporation, having set up another such business on the-same river and not far from that of the plaintiff, and having obtained a grant of way for a tramroad, to be operated by steam-power, from the same person who originally granted the way over which the plaintiff’s road runs, and being about to construct a tram-road across that of the plaintiff, he brought a petition for injunction to prevent such construction, on the grounds that he would be-irreparably damaged thereby, and that the defendant has no right-to lay its road across his. Issue was taken by answer, and at the hearing the evidence on the question of damages, and as to whether' it is necessary for defendant’s tramroad to cross that of the plaintiff, was directly conflicting. The injunction was denied on conditions, and the plaintiff excepted on the ground that it should have-been granted. By cross-bill the defendant excepted on the ground', that the injunction should have been denied unconditionally. J. T. Wade was the owner of the land over which the rights of way were granted. On April 28, 1898, he and J. M. Deaton entered into a written agreement whereby Wade “ agrees to give to said party of the second part the right to lay down a tramroad from, any point to Savannah river, with the privilege to use any timber cut down on right of way in constructing said road, provided that-said right of way shall not exceed ten feet in width, and said tram-road shall be laid down on a certain course agreed upon by said J. T. Wade, and no ditch shall be filled in crossing same, or plantation roads blocked, and the construction at the river landing shall be so situated as to give unobstructed use of said landing to all parties who do not care to patronize said road. And the party of the first part further agrees to give to the party of the second part the right to use the tramroad for any and all purposes for a period of nine years from date, at the end of which time said road and warehouse or houses shall revert to the said J. T. Wade. For and in consideration_of the above agreement the party of the second part agrees to furnish to the said party of the first part, his heirs and assigns, for individual use and benefit, wharfage and transportation of all merchandise and all farm products on said tramroad when in operation, as well as warehouse privileges, free of charge whatever,” etc. On November 15, 1899, Deaton conveyed to the plaintiff the “privileges and advantages” which he held under the agreement with Wade. The defendant holds a conveyance from Wade, dated March 15,1901. In some of the affidavits introduced by the defendant it was stated that the crossing can be made with old-style crossing, which would not materially affect the plaintiff or his tram or increase the risk thereon; but that said crossing can be made also with automatic hinge crossing as used by some of the railroads in Georgia, an arrangement by which the second road crossing the first drops across the stringers or rails of the first road the hinge end of crossing, which is hung with weights, goes back and hits itself off the road when not in use, and in this way does not affect the stringers or rails of the first road; that this hinge crossing can be arranged either to rest on stringers or rails of first road or to be elevated above them and not to touch them at all, and neither arrangement would cut or injure in any way the stringers or rails of the first road; and that such automatic crossing amounts to a temporary bridge across the first road, lifting itself from over the track when not in use. One of the conditions imposed by the order of the judge denying the injunction was, that the crossing be made by an automatic hinge crossing on grade level, arranged to be elevated above the stringers or rails of the tram-road, and not resting on or touching them. The other condition was, that the defendant give a bond for $3,000, conditioned to pay to the plaintiff such damages as may result from injuries caused by said automatic hinge crossing.</p>

<p>Action for damages. Before Judge Henry. Burke superior court. July 30, 1900.</p>

<p>Application for administration — appeal. Before Judge Brinson. Richmond superior court. October 25, 1900.</p> <p>To an application for administration, which stated that the person on whose estate administration was sought had died in another State, “leaving real estate” in the county in which the application was made, there was a caveat stating that the caveators “ are concerned in the subject-matter ” of the application, but not indicating the nature of their interest in the subject-matter, and setting up, among other grounds of objection, that the decedent left no property in this State. When the case, on appeal, came up for hearing, counsel for the caveators, in response to an inquiry by the court, stated that the caveators were neither creditors nor heirs at law of the decedent, and that their interest in the subject-matter was that the property alleged in the application to be the estate of the decedent, and on which administration was sought, was claimed by the caveators to be their property and not the property of the decedent’s estate. Counsel for the applicants did not controvert this statement, but contended that the caveators, being neither heirs nor creditors of the decedent, had no right to caveat the application; and on this ground the court dismissed the caveat. To this judgment the caveators excepted.</p>

<p>Certiorari. Before Judge Brinson. Richmond superior court. December 16, 1900.</p>

<p>Action for damages. Before Judge Falligant. Chatham superior court. August 10, 1900.</p>

<p>The facts of this case as reported in 103 Ga. 712, were not materially changed upon the second trial; and the judgment of the lower court, not being in accordance with the decision rendered when the case was here before, must be reversed.</p>

<p>Motion for new trial. Before Judge Norwood. City court of Savannah. September 7, 1900.</p>

<p>In a suit upon a chose in action by the holder of the equitable title thereto, the plaintiff may amend his declaration by adding the name of the person who holds the legal title, suing for his use.</p>

<p>Complaint. Before Judge Falligant. Chatham superior court. December 29, 1900.</p>

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

<p>Action for damages. Before Judge Seabrook. Bryan superior court. December 15, 1900.</p>

<p>Motion to reinstate. Before Judge Seabrook. Effingham superior court. November 13, 1900.</p>

<p>Ejectment. Before Judge Eelton. Crawford superior court. October 16, 1900.</p> <p>The action was begun on September 23, 1898. The plaintiff is the successor of the Equitable Mortgage Company. A deed of the land sued for was made by Mrs. Carrie I. Ray, on April 3, 1889, to secure a loan made to her by that company. On February 16, 1897, her husband, B. H. Ray, made a deed of the same land to-John M. Green, who, on December 11, 1899, made a deed of the same land to the other defendants. A verdict in their favor was directed. To this and the other rulings to be mentioned the plaintiff excepted.</p> <p>1. The plaintiff contended that, shortly before the deed of Mrs.. Ray was made, B. Hi Ray conveyed the land to her by a deed, which was never recorded and was subsequently lost, and which, was witnessed by R. D. Smith and J. L. Watson. To a subpoena duces tecum the Rays responded that they were unable to produce this deed; and the plaintiff offered the testimony of the Rays, of R. D. Smith and his wife and son, of J. H. Persons and J. E. Hall, of the subscribing witnesses, and of the general agent of the plaintiff, to lay the foundation for introducing parol evidence of the contents of this deed. This testimony tended to prove that the deed was executed and delivered, was then taken by B. H. Ray and held by him for his wife, and was turned over by him, several years-later, to R. D. Smith, through whose papers thorough and repeated searches had been made by him and the other witnesses, recently before the trial, without finding the deed. He had lost other valuable papers in the same manner, during the same time. Thqloan to Mrs. Ray was procured through him as her agent. He never-delivered the deed in question to the Equitable Mortgage Company or to any one representing it; and he did not think he turned it-over to any one. The deed is not in the possession or control of the plaintiff. The witnesses knew of no other place to search than those where they had searched for the deed. The court ruled that-the showing was not sufficient, and excluded the testimony offered, to show the execution of the deed and its contents.</p> <p>2. Payne & Tye were attorneys at law of the Equitable Mortgage Company. They became attorneys at law and in fact of John M. Green in the matter of obtaining from B. H. Ray a conveyance-of lands in Crawford county, in part settlement of indebtedness already existing from Ray to Green. C. E. Hawker, an attorney at-law, was in the employment of Payne & Tye in the capacity of an abstractor of titles. He testified that he investigated the title of the land in dispute, at the instance of Green, and reported to him ■ the result of the investigation. Hawker further testified, that among, the facts so reported to Green was the fact, ascertained by him outside of the records, that Ray had executed to his wife a deed to the land, which was not recorded, but had been delivered to Smith as her agent and attorney; that witness was never Green’s attorney, nor was he treated by Green as such; that no communications between him and Green were confidential or privileged; that he was prompted to make the investigation outside of the records, on account of the Equitable Mortgage Company’s interests, which claimed most of his time and attention, and to see equal fairness between it and Green; that he informed Green of the claim of the Equitable Mortgage Company to the land; that he delivered to Green a written abstract of the title, so far as shown by the record, and without certifying as to the title, and reported to him orally as to the matters ascertained outside of the record; and that Green instructed him to prepare a deed covering all the property (there being a number of parcels, encumbered by liens), saying he would hold such as he could, paying off liens where there was a margin of value, etc. The court excluded all of the testimony of this witness which related to communications between him and Green, on the ground that these were confidential and privileged.</p> <p>3. The defendants offered in evidence a claim affidavit made hy B. H. Ray in February, 1897, interposed to the levy of an execution in favor of the Georgia Loan and Trust Company against Mrs. Ray, which execution had been assigned to the plaintiff in this case on February 6, 1895, and was held and owned by plaintiff at the date of the claim affidavit. The plaintiff objected that this affidavit was irrelevant and incompetent as against the plaintiff. The court overruled the objection ; and also refused to allow B. H. Ray to testify as to the circumstances under which the affidavit was made, and his reasons for making it.</p> <p>4. The plaintiff proved hy B. H. Ray that, when the money was loaned to his wife, he knew the contents of the application for the loan, that she was claiming to own the land, and that the lender acted on said statements. The court ruled this out.</p> <p>5. The plaintiff’s counsel offered to prove by B. H. Ray that he claimed and exercised possession of the land sued for, in behalf and for the benefit of his wife,after his deed to her; contending that this was relevant on the issue whether Green had shown title in his grantor by prior possession, and whether the plaintiff had not shown prima facie title in Mrs. Ray, based on her prior possession. The offered testimony was rejected.</p> <p>6. The deed from B. H. Ray to Green contained this recital: “ This deed is intended to convey, and does convey, all lands owned by me in Crawford county, Georgia, and the lands herein conveyed are free from all liens except those controlled by John M. Green and Payne & Tye.” The plaintiff offered to show by Ray that this recital was intended to except from the operation of the deed the lien held and owned by the plaintiff and in the hands of Payne & Tye, and that said language referred to this as well as to other liens in the hands of Payne & Tye at that time. This was excluded, on objection that the language of the deed was not ambiguous, and that it was not competent for the witness to explain the same.</p> <p>7. The plaintiff offered in evidence a letter from Payne & Tye to the plaintiff, dated March 2,18 9 6, acknowledging receipt of a letter from the plaintiff in regard to the Carrie I. Ray loan, and stating that a levy had been made, under the fi. fa. in favor of the Georgia Loan and Trust Co., on all the land embraced in the plaintiff’s security deed, to which levy an affidavit of illegality had been interposed, which would be for trial at the March term of Crawford superior court, etc. This was excluded as irrelevant; the plaintiff contending that it went to show notice to Payne & Tye of the facts constituting the plaintiff’s title, and therefore notice to Green, they being his agents.</p> <p>8. The deed of Green to the other defendants, dated December 11, 1899, conveying the land in dispute, was objected to as irrelevant ; but the objection was overruled.</p>

<p>1. "While the sendee of a telegraphic message has a right of action against the company for any damages he may sustain in consequence of its negligence in the transmission of a message to him, he is hound by the reasonable terms of the contract made between the company and the sender of the message.</p> <p>:2. Where one delivers for transmission to a telegraph company a message written on the blank of another company, the blank containing printed instrue- • tions that the message shall be sent subject to the terms and conditions printed on the back thereof, the reasonable conditions therein set out are binding, notwithstanding they are in the form of a contract with a company other than the one to which the message is delivered. The delivery and acceptance of such a message is in effect an adoption by the parties of the blank contract made in the name of the other company.</p> <p>3. A provision in such a contract, that the company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed for transmission, is reasonable and binding.</p> <p>■4. The evidence failing to disclose in what amount, if any, the plaintiffs were damaged, the court erred in directing a verdict in their favor for the definite amount for which suit was brought.</p>

<p>Action on bond. Before Judge Felton. Bibb superior court.. January 23, 1901.</p>

<p>The evidence demanding the conclusion that whatever injury the plaintiff sustained was not the result of any negligence on the part of the defendant or its-employees, hut rather of her own negligence or mistake, the court erred in refusing to grant a new trial.</p>

<p>Mandamus. Before Judge Felton. Houston superior court. May 17, 1901.</p>

Equitable petition. Before Judge Russell. Banks superior court. September 19, 1900.

<p>An action for money alleged to have been paid hy the plaintiff upon the defendant’s order, and for the latter’s use, is not sustained hy evidence showing that no such order was ever given or paid.</p>

<p>Levy and claim. Before Judge Russell. Franklin superior ■court. December 3, 1900.</p>

<p>Complaint. Before Charles L. Bass, judge pro hac vice. City court of Clarkesville. October 19, 1900.</p>

<p>Accusation of cheating and swindling. Before Judge Calhoun. Criminal court of Atlanta. April 20, 1901.</p>

<p>A person who has formed an intention to commit a crime, and who, unaided by any one else, performs acts which make the offense complete, will not be excused by reason of the fact that another, with the consent and approval of the victim of the crime, was present aiding in and encouraging its commission. It would be otherwise if such a person originated the intention to commit the crime or induced its perpetration.</p>

<p>Indictment for murder. Before Judge Evans. Johnson superior court. May 18, 1901.</p>

<p>Indictment for larceny of cotton. Before Judge Adams. City court of Dublin. May 13, 1901.</p>

<p>Certiorari. Before Judge Lumpkin. Pulton superior court. November 13, 1901.</p>

<p>Motion to reinstate. Before Judge Eeid. City court of Atlanta. December 1, 1900.</p>

<p>Levy and claim. Before Judge Evans. Washington superior court. September, 1900.</p>

<p>Action for damages. Before Judge Evans. Tattnall superior court. November 27, 1900.</p>

<p>Action for damages. Before Judge Evans. Washington superior court. December 21, 1900.</p>

Levy and claim. Before Judge Norwood. City court of Savannah. August 9, 1900.

Action on contract. Before Judge Norwood. City court of Savannah. February 2, 1901.

<p>Action on contract. Before Judge Norwood. City court of' Savannah. October 26, 1900.</p>

<p>Motion to set aside judgment. Before Judge Seabrook. McIntosh superior court. November 27, 1900.</p>

<p>1. The trial below was conducted without error of law, and a verdict for the plaintiff was demanded by the evidence. The court therefore erred in granting a new trial.</p> <p>2. The verdict authorized the decree that the ccmrt below rendered, rescinding the contract between the parties, restoring the land to the plaintiff, and granting the perpetual injunction prayed for by the petitioner.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. June 8,1900.</p>

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

<p>1. A superior court in disposing of a certiorari can not properly predicate its action upon any oral “ representation ” of fact made while the hearing is in progress, but must try the case by the record.</p> <p>2. The only question which the certiorari in this case properly presented for determination by the superior court was whether or not the verdict complained of was warranted by the evidence; and as that court did not pass thereon, direction is given that it do so at the next hearing.</p>

<p>To constitute the offense of riot, there must he not only a common intent on the part of two or more persons to do an. unlawful act of violence or some other act in a violent and tumultuous manner, hut also concert of action in furtherance of such intent.</p>

<p>Indictment for selling liquor without license. Before Judge Eite. Whitfield superior court. May 14, 1901.</p>

<p>Upon the trial of one charged with tl^e offense of using profane language, without provocation, in the presence of a female, the accused may defend by showing that he was provoked to use the language by one other than such female, the sufficiency of the provocation being a question for the jury, under all the circumstances of the case.</p>

<p>Conviction of involuntary manslaughter. Before Judge Felton. .Bibb superior court. June 20, 1901.</p>

<p>Under a special act creating a city court and providing for the appointment of ' a sheriff thereof, that officer may, though such act does not, even in general terms, prescribe or define his powers and duties, execute processes of that court or perform any other duty necessarily incident to his position as its ministerial officer; but he can not, under such act, lawfully execute processes issued from other courts or by judicial officers other than the judge of the city court in question. Applying this principle to the present case, it follows that the court below erred in not sustaining the demurrer to the accusation.</p>

<p>Merely refusing, upon the demand of a levying officer, to unlock a door of a house, in order to enable him to enter the same for the purpose of levying a lawful process upon goods therein contained, is not a violation of section 306 of the Penal Code, which makes it a misdemeanor to “ knowingly and willfully obstruct, resist, or oppose any officer of this State, or other person duly authorized, in. serving or attempting to serve or execute any lawful process or order.”</p>

<p>Injunction. Before Judge Henry. Floyd superior court. March 30, 1901.</p>

Petition, for injunction. Before Judge Henry. Walker superior court. May 22, 1901.

<p>1. It is not the right of a stranger to a pending cause to intervene therein, unless it is necessary to his protection that he he allowed to become a party to the litigation and thus afforded an opportunity to resist the rendition of a judgment which would operate to his prejudice. .</p> <p>■2. One who, though acting in entire good faith, illegally disposes of property belonging to another is liable to account therefor; and if, under any circumstances, he has an equitable right to demand that his unauthorized disposition of such property be ratified, he must, at least, make a proper tender of the proceeds arising therefrom, and assume the burden of showing that the value of the property was not greater than the amount realized therefor.</p> <p>.3. The decree entered by the court in the present case being more favorable to the losing party than he had any right to expect, it affords him no just cause for complaint.</p>

Equitable petition. Before Judge Littlejohn. Sumter superior court. January 26, 1901.

Garnishment. Before Judge Lumpkin. Eulton superior court. October 20, 1900. Kline was á forwarding and shipping clerk of a railroad company (tbe garnishee). His duty was, to see that freight was properly loaded on cars by truck hands working under his direction ; to check the freight as it was loaded; and to make written reports to the local freight agent, showing what cars were loaded, their numbers, the number of pounds of freight, and the time of loading.

<p>Complaint. Before Judge Lumpkin. Fulton superior court. October 4, 1900.</p>

<p>Complaint. Before Judge Calhoun. City court of Atlanta.. September 25, 1900.</p>

<p>1. When by the terms of a submission in writing certain matters are referred, to a named person to act as arbitrator between the parties, who is invested with all the powers conferred upon three arbitrators by the Code of the State of Georgia, and who it is stipulated shall hear evidence and make a finding on matters of fact involved in such dispute, just as three arbitrators would, such a submission is one made under the common law, though the powers of the arbitrator be measured by reference to statutory provisions ; and it is therefore not a condition precedent to the validity of an award made by the chosen arbitrator that he should be sworn before his award is made.</p> <p>2. Parties to an agreement to submit their differences!» an arbitration (not statutory) may expressly waive that the arbitrator be sworn, even if, under the terms of the submission, the arbitrator is required to be sworn; and an award rendered by an arbitrator under such a submission, where the waiver is made, is not illegal because of a failure on the part of the arbitrator to be sworn.</p> <p>3. An award which is legal and binding on the parties to the submission is likewise binding on a surety on a bond given by one of the parties to pay the eventual condemnation-money which is the amount of the award. The surety > on such a bond, not being a party to the submission, has no legal right to complain of an irregularity in the proceeding had under the submission, which the principal could have legally waived, and which he did actually waive, inasmuch as the undertaking of the surety is independent of the submission. Liability on his part can only be avoided by showing that the award as to the principal was for some cause illegal.</p>

<p>Action for damages. Before Judge Estes. Newton superior court. September, 1900.</p> <p>The plaintiff was a locomotive engineer, and was ordered to take a construction-train to Covington, where defendant was building a spur-track. He and his fireman were left there, with the train, in charge of and subject to the orders of Yancey, who was in control •of the force of workmen and material for the spur-track. No one but plaintiff and the fireman of his engine was furnished to aid in the movements of the engine and cars. Plaintiff told Yancey they had better go to the office and get instructions to work by. Yancey went to the office while plaintiff was working about the engine, bufc returned and told plaintiff they needed no instructions* that Yancey had full charge of the train, and that they would g0‘ right over and do the work. There were three or four cars of rails, and five cars of cross-ties. During the morning they moved three-cars of ties which were unloaded and distributed. In the afternoon Yancey directed plaintiff to take back the three empty cars and get two loaded cars, informing him that he (Yancey) could not-leave the work to go back with him, and that he would furnish him two negro hands, but that they could not be risked to couple cars. Plaintiff took them and went back. He directed one of the negroesto set the switch, which he did, and then told him to uncouple certain cars. The negro fumbled about this, and plaintiff left the engine to do the uncoupling, telling the fireman to take the engine- and go to the spur on the other side, where they would cut out the' tie cars over there. Plaintiff had the negro to set another switch* and the fireman backed in. About that time the station agent came to plaintiff, and they had a talk about the cars he had left there— what was in them, and so on. He told the agent that they were- “ empties,” and that he had come over to get those two that were in there. The agent seemed to be in a big hurry, and, in answer tO' a question, informed plaintiff that a train was due at 6.50 o’clock.. This was the schedule time. Plaintiff remarked that he had fifteen minutes “to get those cars out of here and get away,” to which the agent answered yes, and went back to the depot. The expected train was coming from the east, and plaintiff was three, four, or five hundred yards west of the depot. When he put the ears oufche asked the agent if they would roll by if he cut them out there* and the agent answered that théy would. Plaintiff cut them out. there and came back on the side-track, and went to try to push them off with his pushing-bar. He wanted to get those cars ahead, on account of distributing the ties. He always wanted them in front; it was convenient. He gave them a little push with the engine, without the pinch-bar, and just started them off. They were-heavily loaded, and the negro stopped them about two car-lengths-on a trestle. Three cars were then coupled to the front of the engine, which were to be coupled to the two that had been shoved upon the trestle. Plaintiff walked right down across the trestle* right to the car, and waved the fireman ahead, to make the coupling. He coupled it, and just then he heard the whistle of the-train approaching the depot. He jumped upon a ñat car, and saw the other train out through a cut above the depot, running very rapidly. When the engineer of this train saw the work-train ahead, he blew the whistle for brakes and jumped from his engine. The-work-train had begun to move away, but while it was yet upon the trestle it was struck by the other train, and both trains and the trestle were wrecked. The plaintiff testified that when the collision came the other train was running at least twenty-five miles an hour; that they passed the depot, the terminus, and were four, five, or six hundred yards beyond the depot when they struck; that he looked at his watch just before the collision, and noted that the train was five or six minutes ahead of its scheduled time for arrival at the station; that he had compared his watch with the-standard clock on the previous night, as he was required to do, and they were agreed; and that when the collision came the car on which he was standing, being the second one from his engine, was-knocked up and slewed around like it was going to tumble right down, and, thinking he would be killed if he went down with it, loaded as it was with iron rails, he jumped from it in the opposite direction, striking the ground with his feet, a distance of about-forty feet from the top of the car.</p>

<p>Action for damages. Before Judge Candler. DeKalb superior court. November 20, 1900.</p>

<p>Where one had given a general order to an express company that all matter addressed to him should be delivered by it to the conductor of a named railroad, and, in a particular instance, a package of goods which had been received by the conductor from the express company under such order was ten- ' dered by an agent of the railroad company to the person who had given the order, and he declined to receive it because it was not intended for him and was not his property, and the agent of the railroad company thereupon delivered the goods to an impostor who pretended to be the rightful consignee, and loss to the consignor was thus occasioned, both the person giving the order and the railroad company became liable to the consignor for the value of the goods; and this is so though the impostor exhibited to the agent of the railroad company, before the goods were delivered, some evidence tending to show that the goods were really intended for him. Little, J., dissenting, as to the liability of the person giving the order.</p>

<p>Action for damages. Before Judge Seabrook. Effingham superior court. November 12,1900.</p> <p>The plaintiff testified: On December 17, 1898, I was at Rincon, a station on the railroad of the defendant company, engaged in loading wood on cars which had been sent by the company to me, so that I might ship my wood to Savannah. I was loading at a point about thirty feet north of the warehouse. It had been customary to haul wood and put it on an embankment, and then pitch it into the cars. It was about twenty feet from edge of embankment to car door. I had driven my team between embankment and door, and was unloading the wood from the wagon to the car. I had always done this; it was customary with everybody to do this way. Shortly after I began unloading, Willie Simmons, agent of the road at Rincon, came and said, “ I believe you have been driving in that ditch.” I said, “ No, I have not.” He then said, “ I don’t want you to drive in there any more.” J. V. Plinely, who was with me, said, “Oh, Willie, there aint nobody kicking but you,” and he said, “Yes, I have got authority to keep you out.” Hinely said, “Go show your authority.” He said, “ I have a paper in the office.” Hinely said, “Fetch it,” and Willie brought it, but it did not say anything about driving in the ditch, only that you must not throw wood in the ditch and leave it so as to stop the drainage of the road-bed. I was not throwing wood in the ditch. What I hauled there I would throw on side of the embankment, and when the cars were there I would throw it from the wagon into the cars. The paper said not to throw wood into the cut. It had been the custom by most everybody to haul wood there and throw it into the cut and leave it there. Willie said, “ I don’t care. I don’t want you to drive in there any more.” I went on- and put •in the wood I had hauled and thrown down. The teams came right on in, and he came down again and said, “ I told you to keep out of this cut; and if you don’t, I will blockade it with crossties so you can’t come in.” I said, “ Oh, Willie, go on. I don’t think the head men will give you authority to keep me out of here.” He said, “ I don’t care what the head men say. I want to keep you out of here.” He went back, and in five or ten minutes afterwards the pay-train came up. I went to it and saw Mr. Burroughs, who is, I think, the roadmaster, and was on the train. I told him that .1 had been informed by the agent here not to drive in the cut to unload my wood, and that it was very inconvenient not to drive in and transfer my wood from wagon to car. He told me to go ahead and haul all I wanted to, so long as I did not throw it into the ditch or cut and stop the drainage. I told him all right, and as I was going back Simmons was standing on the warehouse shed. I said, “ Oh, Willie, I made it all right.” He said, “ How so ? ” I said, “ Mr. Burroughs told me to go ahead and haul all I wanted to there, so long as I did not throw any in the ditch.” Then he said, “Well, I will see you don’t do it.” I went on back to my-car; he followed me and said, “I don’t want you to drive in here any more, and you must not, and must keep out of here.” I said, “ Mr. Burroughs told me I could drive in here, and it was reasonable I should listen to him.” He said, “I don’t care what Mr. Burroughs or Mr. Robinson says. I have got the whole thing in my charge, and they have got nothing to do with it. I will see that you keep out of here. Your principle is lower than a dog’s; for if it was not, you would listen to me; and if you will get out of that car I will beat you.” I had said nothing to induce this remark. I said, “Willie, go on; your place is in the office; go and let me alone.” He then turned off with a threat that he was coming back, and said, “ I will see that you don’t come down here any more with your wood.” I think he was angry.</p> <p>I then quit loading, and went about a hundred yards down the road, where Willie Simmons’ father was loading a car of wood, so that he might tell him not to come down there any more to disturb me. I told his father how his son had been treating me, and about bis conduct; and the father said, “ Any time you want to jump on me or my boy you can do it.” I told him that I did not want to bother him or Ms boy, but that I wanted Ms boy not to come down there and .interrupt me any more. His father said, “ We will go and see about it,” and we walked up to the warehouse. I was going towards my car, and as I got to the warehouse Willie Simmons’ father said to "him, “Willie, have you insulted this man?” Willie said, “No.” He was standing on the warehouse shed. I was on the ground .about ten feet from him. John Simmons shook his fist in my face, .and said, “If you impose on my boy, you just as well impose on me.” Then Willie Simmons jumped off theplatform, and said, “ Here is a pile; jump on,” and struck me M the right side. There was a board about ten feet off, and Willie and I made for it. In a second he struck me on the nose with Ms fist; then he struck me M the jaw. The blows made the blood flow from my nose and mouth. I was struck on top of the head, the blow making a bad wound, ■and almost knockmg me senseless. I retreated, and they both followed me. Hinely kept them off. Willie Simmons gave me the blows I have described. I had never, before the conversation already related, had a cross word with Mm. The blows on my head, making the wound on top, may have heen made by John Simmons. They could not have been made with a fist.</p> <p>Hinely and another witness testified for the plamtiff, in substantial agreement with foregoing, except their testimony showed that the blow on the top of the plaintiff’s head was made by John Simmons with a piece of plank or scantling.</p>

<p>Complaint — appeal. Before Judge Felton. Bibb superior court. November 15, 1900.</p>

Action for damages. Before Judge Nottingham. City court of Macon. January 31, 1901.

<p>Equitable petition — intervention. Before Judge Felton. Bibb superior court. September 27, 1900.</p>

<p>1. A person who has, by the order of a court of competent jurisdiction, been appointed receiver of the property of an insolvent debtor, becomes an executive officer of the court which appointed him, and the property received by him, or .the money’arising from its sale, is in custodia legis.</p> <p>2. If a receiver has been directed by the court to deposit a fund arising from the-sale of property of the debtor, in banks, subject to be withdrawn only on his. check when the same has been countersigned by the judge presiding in the court which appointed him, and, in violation of his duty and in disregard of the order of the court, the receiver obtains such funds from, the banks, on checks not countersigned, and appropriates the same to his own use, then, regardless of the question whether or not the bank is liable for such wrongful payment, such receiver is in direct contempt of the court, whose officer he is,, and he may be attached and punished for contempt in disregarding the orders, of the court, and also for a failure or refusal, when so ordered, to pay into, court the fund so misappropriated.</p> <p>3. A creditor prima facie entitled to participate in the fund so withheld is a. proper party to move an attachment against the defaulting receiver; and in. the absence of any such motion, the judge presiding, on information derived, from any source, should cause proper inquiry to be made as to the facts, and, if found to be true, take proper steps to compel the return of the money.</p> <p>4. The high degree of care proper to be exercised in the preservation of funds. arising from the seizure of the property of a citizen requires that a receiver-entrusted with such a fund should be held to a rigid accountability ; and if, on proper order, he fails or refuses to deliver the same, it is the duty of the court to compel him to do so by the use of all lawful means, and to that end it is not illegal to adjudge him to be in contempt for such failure, and imprison him, nor to continue such imprisonment, for the continuing contempt in refusing to deliver the money, for such a time as may be necessary to compel its production.</p> <p>(а) After he has been adjudged in contempt, and imprisoned for a refusal to deliver the fund, he will not be discharged under a writ of habeas corpus, sued out before another judge on the ground that he is unable by reason of his poverty to comply with the order, but it rests in the sound legal discretion of the judge who committed him, or who is presiding in the court which committed him, to determine whether it is or is not in the power of the receiver to restore the fund.</p> <p>(б) Whether the receiver is or is not unable, by proper effort, to restore a fund entrusted to his keeping as an officer of the court, and which he has willfully misappropriated, is, both at common law and under our statute, a question which may be determined by the presiding judge, and is not one which is required to be submitted to a jury.</p> <p>5. The receiver, in effect having' admitted a misappropriation of the fund committed to his safe-keeping, was in any event in contempt, and, without regard to the fact of the disqualification of the presiding judge who passed the order requiring him to pay the fund into court, was subject to be held therefor by the judge who heard the case. Under the facts of this case, as shown by the record, the receiver will not be heard to urge such disqualification.</p>

<p>Action on insurance policy. Before Judge Reese. Hart superior court. September 18, 1900.</p>

<p>Complaint. Before Judge Proffitt. City court of Elberton. August 28, 1900.</p>

<p>Affidavit of illegality. Before Judge Reese. Hart superior •court. September 17, 1900.</p>

<p>Action on contract. Before Judge Proffitt. City court of Elberton. November 30, 1900.</p>

<p>1. Land bought by a husband for his wife and paid for with her money is equitably her property ; and though he takes the legal title to the same, it can not, as against a claim by her, be lawfully subjected to the satisfaction of a judgment against him, if, at the time of the creation of the debt on which the judgment is founded, credit was not given to the husband on the faith of his apparent ownership of such land.</p> <p>2. The evidence in the present case demanded the verdict which the court directed, and no sufficient cause for setting it aside appears.</p>

<p>Levy and claim. Before Judge Estes. Habersham superior court. October 8, 1900.</p>

<p>Injunction. Before Judge Estes. Hall superior court. May 14, 1901.</p>

<p>Accusation of stabbing. Before Judge Nottingham. City court ■of Macon. June 18, 1901.</p>

<p>Indictment for fornication. Before Judge Gober. Gordon superior court. June 6, 1901.</p>

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

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. October 15, 1900.</p>

<p>Exceptions to auditor’s report. Before Judge Lumpkin. Eulton superior court. October 6, 1900.</p>

<p>Warrant of eviction. Before Judge Brinson. Washington superior court. September 4, 1900.</p>

<p>Action for damages. Before Judge Estes. Newton superior court. December 1, 1900.</p>

<p>Complaint. Before Judge Proffitt. City court of Elberton, October 4, 1900.</p>

<p>Complaint. Before Judge Evans. Screven superior court. July 3, 1900.</p>

<p>Levy and claim. Before Judge Reese. Lincoln superior court. October, 1900.</p>

<p>The answer filed by the defendant contained some averments constituting, in substance, at least a good partial defense against the plaintiff’s petition; and hence it should not have been stricken on general demurrer.</p>

<p>Trover. Before Judge Beese. Lincoln superior court. December 5, 1900.</p>

<p>The evidence demanded a verdict for the plaintiff, and the court did not err in so directing.</p>

<p>Action of deceit. Before Judge Proffitt. City court of Elberton. November 30, 1900.</p>

<p>Lewis, J. This court having, at the March term, 1899 (106 Ga. 858), decided that the petition of the plaintiffs in this case set forth a cause of action entitling them to a recovery, and the evidence on the second trial having substantially sustained the allegations of that petition, the court erred in directing a verdict for the defendants. There was a conflict in the evidence, and thecase should consequently have been submitted to a jury.</p> <p>Equitable petition. Before Judge Beese. Oglethorpe superior court. December 11, 1900.</p>

<p>Levy and claim. Before Judge Reese. Hart superior court. December 27, 1900.</p>

<p>Complaint. Before Judge Reese. Hart superior court. December 14, 1900.</p>

<p>Levy and claim. Before Judge Reese. Hart superior court. December 24, 1900.</p>

<p>Complaint. Before Judge Estes. White superior court. December 27, 1900.</p>

<p>Traverse of service. Before J. J. Kimsey, judge pro hac vice. Habersham superior court. September 12, 1900.</p>