Volume 114 — Georgia Reports

<p>Certiorari. Before Judge Lumpkin. Eulton superior court. March term, 1900.</p>

<p>Due and legal service of a summons of garnishment upon a railroad company is not shown by an entry reciting that the summons was served personally upon each of three named persons, the first designated as “ Gen. Sou. Agt.,” the second as “Trav. Urt. Agt.,” and the third as “ Commercial Agt.,” and that these persons were “ in charge of office.” Such an entry is defective in failing to disclose that the individuals served were agents of the company, and in not affirmatively showing that the “ office ” of which they were in charge was its office.</p>

<p>Indictment for murder. Before Judge Falligant. Chatham superior court. March term, 1901. '</p>

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

<p>1. Defects in an indictment or accusation must be taken advantage of either by demurrer before trial or motion in arrest of judgment after conviction. They furnish no reason for the granting of a new trial.</p> <p>2. Where one is prosecuted under an accusation charging him with the offense of cheating and swindling, upon the ground that he falsely represented that he was the owner of certain property and that the same was unincumbered, and it appears that at the date of the representation there was outstanding a writing which in lavy amounted to a lien upon property of the accused which, though differing in description from that described in the accusation, was shown by parol evidence to be the same, it was not erroneous, after the introduction of this evidence, for the court to charge that the difference in description was explainable by parol evidence.</p> <p>3. When counsel for the accused in the argument of a criminal case takes a position before the jury which is calculated to make an erroneous impression upon their minds as to the motives of the prosecutor and the character and consequences of the prosecution, it is not improper for the court in his charge to refer to the subject-matter of such argument and relieve the minds of the jury from such erroneous impression, if it exists.</p> <p>4. While in a prosecution for cheating and swindling, under the provisions of Penal Code, § 658, it is necessary for the State to show by evidence that the person to whom the false and fraudulent representations were made has sustained injury and damage thereby, such injury and damage are sufficiently shown by proof that the security taken for the payment of the debt upon the faith of such representations is of far less value than it would have been if the representations had been true.</p> <p>5. The evidence authorized the verdict, and there was no error in refusing to grant a new trial.</p>

<p>Indictment for- murder. Before Judge Holden. Hart superior court. March, term, 1901.</p>

<p>1. It is competent, in a trial for murder, for the State to prove facts occurring after the homicide, when they tend to illustrate the motive which actuated the accused in killing the deceased.</p> <p>2. There is no rule of law or evidence preventing a woman from testifying that she is not the wife of a man who is on trial for an offense against the penal laws of the State.</p> <p>3. The use of unfair or improper language by an attorney in arguing a case will not be held cause for a new trial when it is certain that no injury could possibly have resulted therefrom to the losing party.</p> <p>4. An instruction to a jury to consider the evidence of a named witness as they 11 would the evidence of any other witness in the case ’ ’ is not open to the criticism. that its effect was to place the witness on the same footing as to credibility as other witnesses. It simply and plainly meant that the jury were to weigh and pass upon the testimony of this witness as they did that of the others.</p> <p>5. A charge which, whether abstractly correct or not, is more favorable to a party than he has any right to demand affords him no j ust cause of complaint.</p> <p>6. A verbal inaccuracy in a charge, resulting from a*, palpable “ slip of the tongue,” and which clearly could not have misled the jury, is not cause for a new trial.</p> <p>7. It is not improper for a judge to shape his general charge to a jury upon'the evidence alone ; but he should, at some stage thereof, appropriately instruct the jury with respect to the prisoner’s statement. .There is no complaint that this was not done in the present case.</p> <p>8. It is not erroneous to refuse to put officers of court, whose presence therein is needed, under the operation of an order requiring the separation of witnesses ; nor is it error to allow a witness who had been “put under the rule ” to testify, notwithstanding the fact that he had heard a portion of the evidence. His disobedience of the rule does not disqualify him, but renders him subject to punishment "for contempt.</p> <p>9. It is always within the discretion of the trial judge to reopen a case for the introduction of further testimony, when no unfair advantage can result therefrom, and the Supreme Court will not undertake to interfere with the exercise of such discretion unless it is manifestly abused to the injury of the complaining party. The use by a judge, in ruling that additional testimony might be introduced, of the words, “I will allow any testimony that wilL tend to elucidate the facts in this case,” is not objectionable as intimating anything with respect to the probative value of the testimony thus let in.</p> <p>10. The evidence fully warranted the verdict of guilty returned in the present case.</p>

Indictment for embezzlement. Before Judge littlejohnl Sumter superior court. May term, 1901. The indictment charged E. L. Hays with “the offense of embezzlement; for that the said E. L. Hays, on the 28th day of August, 1900, in the county aforesaid, did then and there, unlawfully and with force and arms, being then and there in the employment of the Whitley Gro.

<p>Indictment for murder. Before Judge Felton, Bibb superior court. June 3, 1901.</p>

<p>Indictment for murder. Before Judge Littlejohn. Dooly superior court. February term, 1901. .</p>

<p>Accusation of selling or otherwise disposing of mortgaged property. Before Judge Robinson. City court of Wrightsville. May term, 1901.</p>

<p>Indictment for murder. Before Judge Butt. Muscogee superior court. May 29, 1901.</p>

<p>Indictment for larceny. Before Judge Littlejohn. Stewart superior court.' April term, 1901.</p>

<p>Accusation of misdemeanor. Before Judge Davis. City court of Lexington. May term, 1901.</p>

<p>Certiorari. Before Judge Seabrook. Liberty superior court. May term, 1901.</p>

<p>Indictment for murder. Before Judge Russell. Walton superior court. February term, 1901.</p>

<p>Indictment for murder. Before Judge Falligant. Chatham superior court. March term, 1901.</p>

<p>Indictment for incestuous adultery. Before Judge Littlejohn. Sumter superior court. May term, 1901.</p>

<p>Indictment for burglary. Before Judge Harris. Carroll superior court. April term, 1901.</p>

<p>Indictment for poisoning a well. Before Judge Hart. Putnam superior court. September term, 1901.</p>

<p>While proof that an accused was found recently after a larceny in the possession of stolen goods is a circumstance from which the presumption of guilt arises, sufficiently strong to authorize a conviction, yet where the evidence shows such possession not to have "been recent, and the articles stolen to be of such a nature that they could readily have passed from hand to hand, a presumption of guilt still arises, hut it is not, without other evidence, sufficient to sustain a conviction.</p> <p>The trial judge erred in overruling the motion for a new trial.</p>

<p>Indictment for murder. Before Judge Harris. Meriwether superior court. February term, 1901.</p>

<p>One who comes into this State and employs on his own behalf laborers to work for him outside this State is not an “emigrant agent ” within the meaning of the law imposing a tax upon such agents.</p>

<p>Accusation of larceny. Before Judge Hammond. City court of Griffin. June term, 1901.</p>

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

<p>Indictment for assault with intent to rape. Before Judge Butt. Harris superior court. April term, 1901.</p>

<p>1. In charging the jury on the subject of what is circumstantial evidence it is not error to define direct evidence.</p> <p>2. When in the trial of a case founded solely on circumstantial evidence the court in its charge to the jury covers in a general way all the rules to be followed in determining cases founded upon circumstantial evidence, if amplification of such rules is desired, written requests therefor should be made.</p> <p>3. In the trial of one charged with the murder of a female, evidence showing that when the body of the deceased was found it was in such a condition that probably a rape had been committed, is admissible as a circumstance to show the motive which actuated the slayer.</p> <p>4. In the absence of a written request so to do, it is not error for the trial judge to fail to charge the law of a theory of the case presented solely by the prisoner’s statement.</p> <p>6. The evidence authorized the verdict, and the court did not abuse its discretion in refusing to grant a new trial.</p>

<p>Petition for certiorari. Before Judge Reagan. Monroe superior court. August 3, 1901.</p>

<p>Tbe provisions of Penal Code, § 341, which prohibits the carrying of concealed weapons, are sufficiently broad to embrace the carrying of such weapons by a person within the limits of his own home.</p> <p>This court will never pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge.</p> <p>The evidence authorized the verdict, and there was no error in refusing to grant a new trial.</p>

<p>1. A demurrer to an indictment for the offense of “ horse-stealing,” which, under the Penal Code, §157, must be “ charged as simple larceny,” does not, when it sets forth no objection to the indictment other than that it “ does not describe the property alleged to have been stolen, with the accuracy and fullness that the statutes require,” present with sufficient distinctness any question for decision.</p> <p>2. It is not, in a trial for such an offense, erroneous to omit giving in charge to .the jury section 225 of the Penal Code, which makes it a misdemeanor to “ willfully ride or drive any horse or mule belonging to another, without his consent.”</p> <p>3. An instruction correct in itself is not rendered erroneous by a failure to charge some other appropriate instruction.</p> <p>4. The charge on alibi in this case was free from error.</p> <p>5. It is not erroneous for a judge, when charging a jury in a criminal case, to ‘1 keep the evidence distinct from the statement ’ ’ of the accused, ‘ ‘ and shape the general tenor of the charge by the evidence alone and the law applicable to it,” taking care, however, to give appropriate instructions respecting the statement.</p> <p>6. There was sufficient evidence to warrant the verdict.</p>

<p>Habeas corpus. Before Judge Roberts. Wilcox superior court. August 12, 1901.</p>

<p>Habeas corpus. Before Judge Fite. Bartow superior court. August 3, 1901.</p>

<p>The law requiring liquor-dealers to register and pay tax, and imposing a penalty for a failure so to do, has no application to one who illegally sells liquor in a county where such sale is totally prohibited by local law for that county.</p>

<p>One can not be convicted of the offense of obstructing or resisting an officer in an attempt to execute a warrant of arrest, unless he had notice that the person attempting to make the arrest had authority so to do. It follows that a verdict of conviction for such an offense will be set aside, when the evidence fails to show that the accused had notice of the official character of the person attempting to make the arrest, and does show that such person did not have a warrant for the arrest of the accused. The fact that the accused knew that a warrant had been issued and was in the possession of the sheriff in a distant part of the county does not change the rule.</p>

<p>Indictment for murder. Before Judge Butt. Muscogee superior court. August 19, 1901.</p>

<p>A bill of indictment charging one with simple larceny, in which the property alleged to have been stolen, as therein set out, was “a lot of cord wood” of a stated value belonging to named persons, should have been quashed on demurrer for want of a sufficient description of the property alleged to have been stolen.</p>

<p>Indictment for assault. Before Judge Beece. City court of Floyd county. September term, 1901.</p>

<p>■One can not be legally convicted of selling spirituous liquors without a license, in violation of the Penal Code, §431, in a county in which the sale of such liquors is prohibited altogether under the terms of the general local option liquor law, embodied in the Political Code, § 1541 etseq., the provisions of which have been adopted and are of force in that county.</p>

<p>Levy and claim. Before Judge Estes. Rabun superior court. February term, 1901.</p>

<p>Complaint for land. Before Judge Gober. Cherokee superior court. February term, 1901.</p>

<p>A writ of certiorari in a civil case, unless sued out in forma pauperis, is void if the same be issued before the applicant has given the bond prescribed by the Civil Code, § 4639 ; and that bond, to render it effectual, must in some manner be approved by the judge or justice of the court in which the case was originally tried.</p> <p>The decisions of this court, to the above effect, in Hamilton v. Insurance Co., 107 Ga. 728 ; Wingard v. Southern Railway Co., 109 Ga. 177; and Carpenter v. Same, 112 Ga. 152, are, upon a review thereof, affirmed.</p>

<p>Indictment for murder. Before Judge Reagan. Dodge superior court. July 1, 1901.</p> <p>According to the testimony introduced by the State, Bowen and Reeves were seen, by two witnesses about 150 yards away, walking together. Then they came to a stop, and Reeves seized Bowen’s right arm with his left hand, and shot Bowen with a pistol, shooting twice. Bowen had his gun in his right hand at arm’s length, and Reeves was walking on his left side. After the shooting, Reeves walked off immediately toward the railroad, and soon ran from the town where the killing occurred to a point about fifteen miles distant, in another county, where, a few days later, he surrendered himself to the sheriff of Dodge county. He and Bowen had not seemed to be unfriendly before the shooting. At the time Reeves seized Bowen, Bowen was not doing anything to him; “ he just kind •of come to a stop.” The witness could not say positively whether it was Bowen’s arm or his gun that Reeves seized. After he shot him he picked up Bowen’s gun and walked off. When one witness first saw the parties they were going in opposite directions. They met, and Reeves turned and walked -with Bowen. Bowen died in two or three minutes after he was shot. Another witness testified that she was one or two hundred yards distant; her attention was attracted by the first shot, and she saw Reeves shoot the second time, when Bowen was down on his knees and had his hand up to his head. At this time Reeves was behind Bowen’s back. Bowen had a pistol in his pocket.</p> <p>A witness for the defendant testified that he was about 60 or 75 yards from the parties at the time of the shooting, and there was nothing to obstruct his view. He saw them walking slowly side by side, looking each other in the face. Suddenly Bowen ran back and threw his rifle in Reeves’s face; whereupon Reeves seized the rifle and shot Bowen. Bowen was staggering as he walked. Another witness for the defendant testified that as she and another woman accompanied by Reeves were walking along the road, they were accosted by Bowen and told to stop. They stopped, and Bowen walked up to Reeves and said, with an oath, that he was going to make Reeves eat an ear of corn which Bowen had. He told Reeves that he supposed that he said he was going to make him eat some corn. Reeves asked him, who said so ? and he told him that two women said so. It appears that Bowen had just come from a house where two women lived. As soon as Bowen made these statements, the two women who were with Reeves ran away, and' the shooting occurred ten or fifteen minutes later. Several witnesses gave Bowen a character for violence in the community.</p> <p>The prisoner’s statement was: “ I was going along with these women that afternoon, and Mr. Bowen was up there at Mrs. Coffee’s house; and as soon as he seed us coming towards town, he was coming up that path going to town, he took and come across the road and hollered at us, . . walked up to us and said,‘Don’t you all love roasting-ears?’ We said yes. . . Then he asked me if I did not love roasting-ears, and I told him I did, but I didn’t want any that afternoon. He said to me that he heard somebody say that I was going to make him eat roasting-ears the next time I saw him. I asked him who told him that, and he said two women; and about that time these two women turned and went off; and as soon as they turned off he turned to me and says, ‘Jim, let’s go up town and get drunk and raise hell.’ I says, ‘ No, I can’t do that,’ and then he says, ‘ I am going up there and raise hell. Sheriff Rogers is up there with a warrant for me, but damned if he ca.n arrest me. Damned if sheriff Rogers can arrest my baby boy.’ I was walking along, and had my pistol in my side pocket; and he says, ‘ Let me see that pistol.’ I told him no, that he could not have it; and he tried to snatch it out, and got hold of the handle ; and when he could not get it away from me he backed off a little piece and threw his gun on me and began to cock it and say, ‘ Throw down that pistol, God damn you, or I will kill you in the twinkling of an eye,’ and I said no; and he said, ‘ I will kill you if you just bat your eyes, God damn you.’ Then I slapped his gun and shot at the same time. When I shot him the first time I didn’t want to kill him; and when I shot him he fell to his knees, and he was trying to get up with his gun ; and while he was trying to get up I shot, him again. He was already up on his knees when I shot him the second time; and that is the reason I took his gun and went on off. I didn’t know whether he was going to shoot or not. I shot him because I was scared of him. He was a desperado, and that was his business — -to shoot people.”</p> <p>The court charged the jury, among other tilings, thus: “ If you believe that at the time of the killing Bowen was advancing on him with a deadly weapon, and that all the circumstances were sufficient to excite the fears of a reasonable man that a felony was about to be committed on his person, and that the party killing acted under the influence of those fears and not in a spirit of revenge, then the killing would be justifiable.” It was alleged, in one ground of the motion for a new trial, that the use of the word “ advancing,” in this connection, tended to mislead the jury (there being no-evidence of any advance), and was susceptible of the construction that, in order for the defendant to have been justified in the killing, the deceased must have been actually advancing upon him and he retreating.</p>

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

<p>1. When, without objection to the correctness of the brief of evidence accompanying a motion for new trial, the motion was heard and determined on its-merits by the trial judge, a motion made in this court to dismiss the writ of error because the brief of evidence was not approved by the judge will be denied. Nor isa motion to dismiss a writ of error, because the charge of the court (which is specified in the bill of exceptions as a part of the record) does-not bear the formal approval of the judge, good when the particular portions-of the charge assigned as error are set out in an amendment to the motion, which is satisfactorily identified and approved in the body of the bill of exceptions.</p> <p>' 2. On the trial of one charged with assault with intent to murder another by cutting him with a knife, it was error to charge, in effect, that if the prosecutor simply struck the accused with his hand or fist, intending no felony or serious bodily harm, and, in answer to that blow, the accused used a weapon likely to produce death, he would be guilty of the offense charged.</p> <p>(as) Had death resulted and the fatal wound been inflicted as the result of pas- . sion engendered by a blow amounting to no more thau an assault, the accused could not have been legally convicted of murder.</p> <p>(6) Had the assault been provoked by passion so engendered, the defendant-might have been convicted of stabbing, or assault and battery, in case the evidence so warranted.</p> <p>8. When, in a trial for assault with intent to murder, the accused sets up the defense that he inflicted the wounds on the prosecutor to prevent the commission of a felony on his person, and the evidence both of the State and the accused is directed to the truth of the issue thus made, it is error to charge the jury, in effect, that, in order for the accused to be justified, it must appear that the danger was so urgent and pressing at the time of the difficulty that in order to-save his own life it was absolutely necessary to kill. The provisions of that-section do not apply in a case of the character indicated.</p>

<p>Indictment for misdemeanor. Before Judge Butt. Muscogee superior court. May term, 1901.</p>

<p>Accusation of larceny. Before Judge Hobbs. City court of Albany. May term, 1901.</p>

<p>Indictment for murder. Before Judge Hart. Laurens superior court. July term, 1901.</p>

<p>Indictment for misdemeanor. Before Judge Hodnett. City court of Carrollton. August 8, 1901.</p>

<p>Accusation of larceny. Before Judge Proffitt. City court of Elberton. August term, 1901,</p>

<p>Indictment for murder. Before Judge Brinson. Richmond superior court. • April term, 1901.</p>

<p>Indictment for assault with intent to murder. Before Judge Reagan. Butts superior court. August term, 1901.</p>

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

<p>Indictment for burglary. Before Judge Henry. Floyd superior court. July term, 1901.</p>

<p>1. A promise relating to the future can not be the basis of a prosecution for cheating and swindling.</p> <p>2. The evidence was wholly insufficient to support the verdict of guilty, which should have been set aside on motion for new trial.</p>

<p>Accusation of riot. Before Judge Longley. City court of LaGrange. September 23, 1901.</p>

<p>Indictment for larceny. Before Judge Reagan. Monroe superior court. August term, 1901.</p>

<p>1. In order to properly present for decision by tbe Supreme Court the question whether or not error was committed in admitting given evidence, it must appear that objection was made to 'it and passed upon by the court at the time it was offered, and also what the objection was.</p> <p>2. A motion to dismiss a petition being in the nature of a demurrer, a refusal to sustain the same affords no cause for granting a new trial.</p> <p>3. A surety on a contract which does not on its face disclose the fact of his suretyship may, without paying in full the joint debt, but upon paying, either before or after judgment, aportion only thereof, maintain against a cosurety, for the purpose of compelling contribution, the statutory proceeding for having such fact entered of record ; and where such a proceeding is instituted after judgment, it is not essential for the petitioner to show that the execution issued thereon has been assigned to him.</p> <p>4. The evidence was amply sufficient to support the verdict returned in the present case.</p>

<p>Equitable petition. Before Judge Gober. Cobb superior court, March term, 1901.</p>

<p>Equitable petition. Before Judge Fite. Bartow superior court. January term, 1901.</p>

<p>Petition for injunction. Before Judge Gober. Pickens superior court. July 1,1901.</p>

Complaint for land. Before Judge Fite. Bartow superior court. January term, 1901. cited, as to the effect of ignorance by the grantee of the mental incapacity of the grantor: Civil Code, § 3652; American Trust Co. v. Boone, 102 Ga. 202; Bunn v. Postell, 107 Ga. 490; Orr v. Equitable Mortgage Co., Id. 500. cited, on the same subject: Clark on Contracts, 270, 271; Bishop on Contracts, §§963, 964, 970; 11 Am. & Eng. Ene. L. (1st ed.) 150; 16 Am. & Eng. Ene. L. (2d ed.) 625.

<p>In a proceeding to eject intruders, instituted under the Civil Code, §§4808 et seq., the sole question for determination is whether or not the defendants in good faith claim the right to be upon the land; and when, by undisputed evidence, they establish their bona tides, it is erroneous to direct a verdict in favor of the plaintiff.</p>

<p>1. A plea filed by the maker of a promissory note given for the purchase-price of land, to a suit on the note brought by the payee thereof, setting up that the plaintiff gave to the defendant a bond for titles, in which the land was described as a given number of acres of a specified quality, to be laid off in a given shape and in a particular locality, and that the consideration of the note had partially failed, for the reason that the maker of the bond for titles, on account of conveyances of land to other persons, could not comply with his contract as to the shape and quality of the land sold, sets forth a good defense. In such a case, there being in the plea a proper prayer to that effect, the purchase-price of the land should be abated to the extent of the difference in value between the land contracted to be sold and the value of that which the maker of the bond was able to convey.</p> <p>2. In the trial of such a suit as that above indicated, brought against both the maker of the note and a person who signed the same as security, a plea by the latter, setting forth the foregoing facts and alleging that by reason of misrepresentations as to the shape and quality of the land, made to him by the plaintiff, he was induced to sign the note as security, and that by reason of such misrepresentations his risk has been so materially increased as to discharge him from liability on his contract of suretyship, sets forth a good defense to the suit against him.</p> <p>3. Where a debtor brings an equitable petition against his creditor, seeking to compel him to anticipate his right of action and set up the same in the equitable proceeding, and alleging that the debtor has certain defenses to the action, a judgment sustaining a general demurrer to such a petition, on the ground that no reason is set forth therein for either legal or equitable relief, will not operate as a bar to the right of the debtor to set up such defenses in a suit subsequently brought by the creditor on his demand.</p>

<p>Action for damages. Before Judge Harris. City court of Cartersville. April 15, 1901.</p>

<p>Equitable petition. Before Judge Fite. Catoosa superior court. August term, 1901.</p>

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

<p>1. In disposing of a petition by a trustee against acotrustee, both of whomhave been appointed by will, in which petition the plaintiff not only prays for the removal of the defendant from his trust, but also sets forth the will, together with a statement of the defendant’s rights thereunder as claimed by the plaintiff, and where the defendant in his answer sets up reasons why he should not be removed, denies that the plaintiff’s construction of the will as to the defendant’s rights thereunder is correct, and, by cross-petition, prays for a decree fixing his individual rights in the property in question, the court has before it not only the question of removal or non-removal, but also that of passing on the prayer of the cross-petition.</p> <p>2. Under the terms of the will in this case, the defendant in error took a life-estate in the property in question, subject to be divested in the event such property should be sold by him as trustee.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd county. February 13, 1901.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd county. March term, 1901.</p>

<p>'The proceeding authorized by the Political Code, §272, for the purpose of compelling the delivery of books, papers, or other property, as required by the. three preceding sections, is not, when instituted before a judge of the superior court, a proceeding in any superior court; and, consequently, no order passed by such officer upon such a proceeding is reviewable by a writ of error' to the Supreme Court.</p>

<p>An obligation binding the principal and sureties in a penal sum named, payable to the Governor of Georgia and his successors in office, conditioned for the personal appearance of the principal at a stated term of a superior court to answer to a bill of indictment which had been preferred against such principal, is a contract to which the State of Georgia and the principal and sureties executing the bond are the only parties. Although a contract of this character is executed on Sunday by the obligatory parties, it can not be classed as a contract made in the pursuit of a business, or the performance of a work within the ordinary calling of one of the parties to the contract.</p>

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

<p>■ Complaint. Before Judge Jones. City court of Clarkesvillé. May 22, 1901.</p>

<p>Certiorari. Before Judge Gober. Cobb superior court. April 27, 1901.</p> <p>cited: Civil Code, §2474; Berry v. Goodger, 80 Ga. 620 ; Rushing v. Clancy, 92 Ga. 769; Dobbins v. Blanchard, 94 Ga. 500 ; Jones v. Harrell, 110 Ga. 375.</p> <p>cited: Civil Code, §§2492, 3736; Schofield v. Jones, 85 Ga. 816; Hill v. Cooley, 112 Ga. 115; Tyson v. Woodruff, 108 Ga. 368.</p>

<p>Complaint for land. Before W. A. Charters, judge pro. hae vice. Rabun superior court. February term, 1901.</p>

<p>1. When a contract is entered into between two persons, in which one of them subscribes money for the purpose of building a factory, and the other agrees to construct such factory when a certain amount shall have been subscribed, and it is further agreed that when this is done the subscribers shall have themselves incorporated into a company for the purpose of operating the factory, the liability of the subscribers on their subscriptions is, in the first instance, to the person agreeing to construct the factory, but after the corporation is formed such liability is to the corporation only, and it becomes liable, to the extent of the unpaid subscriptions, to the person who agreed to build the factory.</p> <p>2. Though an amendment making entirely new parties plaintiff may have been improperly allowed, yet, if allowed without objection from the defendant, the suit can proceed in the name of the new plaintiffs, and if a liability to them is established, a recovery can be had.</p> <p>3. The mere fact that a plaintiff in his pleadings declares his intention of suing for the use of a-third person does not raise any question as to the liability either of the plaintiff or of the defendant to such third person. The words declaring an intention to use the recovery for the benefit of another are, as to the defendant, harmless surplusage. He is not concerned in what disposition is to be made of the recovery.</p>

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

<p>Action for damages. Before Judge Fite. Catoosa superior •court. February 4, 1901.</p>

<p>Certiorari. Before Judge Eite. Whitfield superior court. April 6, 1901.</p>

<p>Complaint. Before Judge Harris. City court of Cartersville. September term, 1900.</p>

<p>In order for the widow of a deceased employee of a railroad company to recover from the company for the homicide of her husband in a railroad collision, it must appear that the deceased was free from any fault contributing to the accident. The evidence for both the plaintiff and the defendant in the present case showing that the plaintiff’s decedent was guilty of negligence, and that this negligence contributed to the homicide, a verdict for the plaintiff was unwarranted and should have been set aside as contrary to the evidence.</p>

<p>Garnishment. Before Judge Harris. City court of Cartersville. June term, 1901.</p>

<p>Ejectment. Before Judge Eite. Murray superior court. February term, 1901.</p>

<p>Action for damages. Before Judge Fite. Whitfield superio court. April term, 1901.</p>

<p>Petition for injunction. Before Judge Felton. Bibb superi court. August 5, 1901.</p>

<p>Action for damages. Before Judge Henry. Floyd superic court. April 22,1901.</p>

Rule for contempt. Before Judge Littlejohn. Sumter superior court. July 23, 1901.

<p>Equitable petition. Before Judge Gober. Forsyth superior court. February 19, 1901.</p>

<p>1. Even if an answer to a petition admits sufficient facts to entitle the plaintiff prima facie to a recovery, it is not erroneous to refuse to allow the defendant to open and conclude the argument, when no request to do so is presented until after the testimony on both sides has been closed.</p> <p>2. It is erroneous for a trial judge to charge the jury upon issues not made by the pleadings or evidence in the case on trial; and where this is done, when the evidence is conflicting on the issues really involved, in a way which may mislead the jury, it is cause for a new trial. Where the questions raised were whether the conductor or other authorities on a railroad-train had improperly arrested, misused, and maltreated the plaintiff, and no question as to the propriety or impropriety of ejecting him from the train was, under the evidence, involved, a charge which injected this issue into the case was erroneous.</p> <p>3. Where, in the trial of a case, evidence has been introduced tending to show that mental and physical pain has resulted from the wrongful act to recover damages for which the action was instituted, it is not error to instruct the jury that there is no fixed rule for computing damages of this nature, but that the same are left to the enlightened conscience and intelligence of impartial jurors.</p> <p>i. An attempt to steal a ride by concealing one’s self on a moving train of cars is a misdemeanor, and the conductor is by law authorized to cause a person guilty thereof to be arrested. Where in a given case the-conduct of the passenger is such as to afford reasonable ground and probable cause for believing that one is violating this law, his arrest by the conductor does not render the railroad company liable, although it he shown that the person was not, as a matter of fact, violating or attempting to violate the statute.</p> <p>(а) The court erred in refusing a request to charge the above legal proposition.</p> <p>(б) There was in the present case sufficient evidence to find that the plaintiff was actually violating the law in this regard. Though attempt at concealment is one of the essential elements of the offense, there is in the record sufficient evidence to establish the fact that the plaintiff attempted to conceal himself on the train.</p> <p>5. The refusal to give in charge the other requests specified was not error.</p> <p>6. The point that the trial court was without jurisdiction is, certainly as to some of the alleged causes on which the right of recovery is predicated, without merit; and not having been raised by a proper plea or motion in the court below, will not be considered when presented in this court as a meritorious ground for a new trial.</p>

<p>1. Viewed in the light of the pleadings filed in the present case, the verdict of the jury was not void for uncertainty.</p> <p>2. When the holder of a promissory note surrenders to the maker thereof-col-laterals given to secure its payment, in order that the latter may sell the same and apply the proceeds to the payment of his indebtedness, the relation of principal and agent exists between them, in so far as third persons are concerned. It follows that where the maker of the note subsequently reports that he has sold the collaterals to a partnership of which he is a member, and, relying upon this representation, his principal accepts as the proceeds of the col-laterals a promissory note executed in the name of the partnership, it can not be held liable thereon if, in point of fact, it never became the purchaser of the collaterals or derived any benefit therefrom. The principal had, or was, in law, chargeable with, knowledge of all facts known by the' agent.</p> <p>5. That a partnership may frequently have drawn checks against its funds in bank for the purpose of discharging the individual debts of its members would not constitute such ft a course of dealing ” as would justify the bank in assuming that it was within the scope of the partnership business to pledge its credit and give its promissory note in satisfaction of a debt due by one of the partners to the bank. In no event could such “a course of dealing ” be set up by the bank, if it did not, as matter of fact, act upon the faith thereof.</p> <p>•4. That the court may have committed error in charging the jury, or in refusing to give them certain instructions, or in denying to the losing party the right to open and conclude the argument, affords no cause for ordering a hew trial when, as in the present case, the verdict returned by the jury was demanded by the evidence.</p>

<p>Equitable petition. Before Judge Henry. Eloyd superior court. April 15, 1901.</p> <p>cited: Civil Code, §§ 5454, 3549; Sullivan v. Hearnden, 11 Ga. 296 (2); Brooks v. Rooney, Id. 424 (6), (7), 423 (5) ;Solomon v. Peters, 37.Ga. 255; VanDyke v. Martin, 53 Ga. 221; Gunn v. Slaughter, 83 Ga. 124 (3); Gonley v. Redwine, 109 Ga. 640, 644, and citations; Johnson v. Dooly, 72 Ga. 301; Fears v. State, 102 Ga. 284; Forbes v. Hall, Id. 49.</p> <p>cited: 1 Freeman, Executions (3d ed.), § 108; Borer, Jud. Sales (2d ed.), §§ 1087, 1095 ; Lawyers’ Co-operative Pub. Co. v. Bennett, 34 Fla. 302;- Jackson v. Anderson, 4 Wend. 474; Morgan v. People, 59 111. 58; Jones v. Hurst, 91 Ga. 338, s. c. 95 Ga. 286.</p>

<p>Motion to set aside judgment. Before Judge Henry. Floyd superior court. March 21, 1901.</p>

<p>Action for damages. Before Judge Henry. Eloyd superior court. April 24, 1901.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd county. April 24, 1901.</p>

<p>Where a stock of goods was set apart as an exemption, and the head of the family, without any 02’der of court, continued to carry on a mercantile business and sold the goods and bought others, one who sold to the head of the family goods which became mingled with the exempted property could not, though the beneficiaries were maintained and supported from the business so carried on, maintain against the head of the family and the beneficiaries a suit for the purchase-price of such goods and obtain a judgment condemning the exempted property to the payment of his debt. At most would such a creditor be entitled to subject to the payment of his debt only such of his goods as he could identify in the stock.</p>

<p>Petition for injunction. Before Judge Henry. Eloyd superior-court. August 14, 1901.</p> <p>The decedent’s rights in the land vested in the heirs at his. death, and the contract with the heirs for its redemption by the plaintiffs was as binding on the administrator as if made with the decedent: Civil Code, § 3358 ; Carruthers v. Bailey, 3 Ga. 108; Thompson v. Sandford, 13 Ga. 238; Miller v. Speight, 61 Ga. 461; Pope v. Marshall, 78 Ga. 637; Cross v. Johnson, 82 Ga. 67. The title to the land having been conveyed by the security deed, the decedent at the time of his death had only an equity of redemption; and a tender of the amount due was a condition precedent to any suit for the enforcement of his rights: Broach v. Barfield, 57 Ga. 601; Middlebrooksv. Warren, 59 Ga. 231; Gibson v. Hough, 60 Ga. 588; Phinizy v. Clark, 62 Ga. 623; Carter v. Gunn, 64 Ga. 651; Dykes v. McVay, 67 Ga. 502; Groves v. Williams, 69 Ga. 614; Oellrich v. Ga. R. Co., 73 Ga. 389; Roland v. Coleman, 76 Ga. 652; Brice v. Lane, 90 Ga. 295; Daniel v. Wilson, 91 Ga. 238 (4); Swift v. Lucas, 92 Ga. 796; Marshalls. Hodgkins, 99 Ga. 593. On the payment by the plaintiffs of the secured debt, and the delivery to them of the notes and the security deed, they were subrogated to the rights of the secured creditor; and being entitled to a conveyance, the cancellation of the security deed, coupled with the conveyance by the heirs at law, under the contract with the heirs, put into the plaintiffs a good title: Dutcher v. Hobby, 86 Ga. 198; Henry v. Mc-Allister, 93 Ga. 670 (2); VanPelt v. Hurt, 97 Ga. 662; Ashley v. Cook, 109 Ga. 653 (1, 5). As to subrogation: 24 Am. & Eng. Enc. L. (1st ed.) 188, 192, 260, 278; Sheldon, Sub. (2d ed.) §§ 1, 3, 11, 13, 14, 19, 28, 29, 30, 34, 35, 40, 49, 187, 216, 241, 243, 245, 247, 248; 2 Beach, Eq. Jur. 867; McWilliams v. Bones, 84 Ga. 203 ; Crumlester’s adm’r v. Central Improvement Co. (W. Va.), 23 L. R. A. 128, notes; Spalding v. Harvey (Ind.), 13 L. R. A. 619; Scott v. Dunn, 30 Am. Dec. 174; Crippen v. Chappel, 57 Am. Rep. 187.</p> <p>cited: 2 Beach, Eq. Jur. §819; Kelly v. Kelly, 54 Mich. 47; Dwight v. Lumber Co., 82 Mich. 629.</p>

<p>Injunction. Before Judge Brinson. Richmond superior court. April 24, 1901.</p> <p>The receipt for ten dollars was not a contract: Civil Code, § 5208; 92 Ga. 149 ; 57 Am. R. 860. If it was a contract it was not the contract of Larned; it is signed “ Clarence E. Clark, Agent for Charles Larned,” and was Clark’s contract: 51 Ga. 482; 91 Ga. 748; 101 Ga. 676; 109 Ga-287; 110 Ga. 283. Clark had no authority to make a contract of sale which would bind his principal: 111 Ga. 490; 6 Am. Rep. 617 ; Mechem, Agency, § 966; 4 Am. & Eng. Ene. L. (2d ed.) 964-The renewal option, being in parol and without consideration, was void: 104 Ga. 162; 68 Md. 21; 10 Mont. 5, s. c. 24 Pac. 695; 33 Am. Dec. 681; 21 L. R. A. 129; 28 Am. & Eng. Ene. L. (1st ed.) 91; Pomeroy, Cont. § 92. Even if in writing, it could only be treated as an offer which could be withdrawn at any time before unconditional acceptance: 81 Ga. 707; Pomeroy, Cont. § 64, and cit. Acceptance must be unconditional; the acceptance here was conditional: 1 Beach, Cont. 52 — 4; 28 Am. &Eng. Ene. L. (1st ed.) 92,n. 2; 95 Ga. 518; 81 Ga. 704; 31W. Va. 736; 40 Kan. 418; 41 Kan. 37; 36 Minn. 361; 7 Ontario, 182; 3 L. R. A. 95 (3); 117 HI. 118, s. c. 57 Am. Rep. 858; 67 Iowa, 678, s. c. 56 Am. Rep. 371. The option being silent as to credit, the presumption is that the sale was for cash; and in order to bind the.seller the transaction would have to be completed within the time prescribed: 88 Ga. 325. Cash means absolute payment at the time the other party acts: 46 Ga. 280. In order to recover, the vendee must allege and prove an offer to perform by tender of the purchase-money. He ought also to show that he tendered a sufficient deed for the vendor to sign, which he refused to do: 88 Ga. 327; Pomeroy, Cont. §§ 360 — 62. Proof that the offer was withdrawn before notice of absolute acceptance, and before tendering the cash or a deed for signature, is a complete defense in ah action for specific performance: Peacock v. Peweese, 73 Ga. 570, cited in 21 L. R. A. 132; Pomeroy, Cont. § 66. Where a writing is silent as to certain terms which can be supplied by implication of law, such silence may not prevent the writing from being a perfect contract; but if the writing is silent and the parties orally agreed as to the terms which are omitted,the contract is void, under the statute of frauds: 100 Ga. 645; 82 Mo. 215, s. e. 52 Am. Rep. 365. A defendant may even admit the contract and obtain the benefit of the statute of frauds: 8 Ga. 457. The payment of ten dollars did not give the agreement validity; part payment unaccompanied with possession would only authorize a recovery of the sum paid: Code, §4037; 15 Ga. 445 (4); 57 Am. Rep. 860, 862; Pomeroy, Cont. § 112. There was no ratification by Larned; he was without knowledge of all the material facts at the time he sent the telegrams and letters which it is claimed amounted to a ratification: 12 Ga. 205 (2); 82 Ga. 688 (4); Mechem, Ag. 128,129,148; 1 Am. & Eng. Ene. L. (2d ed.) 1181 et seq. There was no unreasonable silence: 14 Ga. 124; 32 Ga. 72; 53 Ga. 144, 315. To claim the benefit of ratification, the other party must have acted on the ratifying act to his own damage: 11 N. J. Eq. 201. The receipt was the personal contract of Clark, and only a subsequent adoption of it, or the making of a similar contract by Larned, could give it validity: 81 Ga. 176 (7), 186. Ratification would not prevent withdrawal by Larned prior to unconditional acceptance of the offer: 44 Pa. St. 17. Piling a petition for specific performance did not cure want of mutuality: Pomeroy, Cont. § 158. See further, as to specific performance: 21 L. R. A. 130; 10 Wall. 340; 14 Peters, 77, 83; 4 Wheat. 225; 4 Wall. 513; Civil Code, § 4037. In order to obtain specific performance, the terms of the contract should be so precise that neither party can reasonably misunderstand it: 2 Wheat. 336. In the receipt for ten dollars “earnest money on account of Tuckahoe” there is no proper identification of the subject-matter. Earnest money suggests personalty rather than realty (Civil Code, § 2693, par. 7), and “Tuckahoe” might equally well have referred to a race-horse or a yacht: 33 Pa. St. 411; 45 Kan. 231; 95 U. S. 200; 5 Jones Eq. (N. C.), 153; 46 Ind. 426; 46 Pa. St. 334; 1 Humph. 325; 6 B. Mon. 103; 3 Littell, 262; 20 W. Ya. 415. No right to injunction: 13 N. J. Eq. 320.</p> <p>Apparently Clark was the agent of Earned, for he acted and signed as such: Code, §§ 3022,3026, 3024; 39 Ga. 35; 70 Ga. 595; 75 Ga. 289; 78 Ga. 312. Really agent: Code, §§ 3021, 3023, 3027,2997,2999 ; 16 Ga. 424; 67 Ga. 595; 99 Ga. 151; 100 Ga. 737 ; 110 Ga. 302; Id. 403, 413; 98 Mass. 105; Lawson, Cont. §§ 169-173; 5 Wait, Act. & Def. 821; 8 Am. & Eng.Enc. L. (1st ed.) 718 — 19. Ratification: Code, §§ 3019,3021; 105 Ga. 418. The general principles of agency are universal, and apply to those4 dealing with either real or personal property: 28 Am. & Eng. Ene. E. (1st ed.) 94. Where agent has authority to sell, he has authority to sign an agreement in the principal’s name and bind him thereby: Civil Code, §§ 3019, 3021; 67 Ga. 595 ; 86 Mo. 178; 40 N. Y. 363. Earned will not be permitted to set up reasons other than that originally given for his refusal to consummate the sale: 100 Ga. 566; 25 Am. & Eng. Ene. L. (1st ed.) 916; 28 Id. 582. Contract by agent not being under seal, agent presumed to have the authority, as verbal authority would be sufficient, and ratification need not be under seal: 39 Ga. 35; 60 Ga. 212; 67 Ga. 595 (3b). Otherwise as to contract under seal: 102 Ga. 751, and citations. No part of the contract is sealed: 69 Ga. 763; 112 Ga. 700. The question of agency is one finally for a jury. The petition sets forth the option — a simple contract, for a valuable consideration; an assignment of it by proper writing; an extension by proper writing; an acceptance by proper writing; apaymentthereunderas“ earnest money”; andaratification. These are on separate papers: 73 Ga. 400; 8 Am. & Eng.Enc. L. (1st ed.) 711, 724. Extension shows continuing offer to sell: 10 Mont. 5. Consideration for extension: 21 L. R. A. 129, notes; 5 Ga. 476; 12 Ga. 52; 68 Ga. 141; 104 Ga. 163, and citations; Civil Code, §§ 3657, 3659. Right to assign: 35 Ga. 258; 103 Ga. 134; 104 Ga. 164; 21 L. R. A. 133, note III; 21 Ga. 183. Receipt shows acceptance, as do letters and telegrams. Not essential that the letters should be addressed by one of the parties to the other: 37Kan. 487; 7 N. Y. Supp. 21; 32 Gratt. (Va.) 645; 22 Am. & Eng. Ene. E. (1st ed.) 976. Specific performance: Civil Code, §4036; 22 Am. & Eng. Ene. L. (1st ed.) 909, 910, 921; Waterman, Sp. Perf. §1; Anderson, L. Diet. 766; 1 Sneed (Tenn.), 1; 85 Tenn. 707; 86 Tenn. 663; 33 S. C. 367; 27 Wis. 671; 8 Am. & Eng. Ene. L. (1st ed.) 724. Terms fair and just; no inadequacy of price. Bad trade even would not avail Larned, there being no fraud: 37 S. E. Rep. (N. C.) 141. Equity looks to intent rather than form: 22 Am. & Eng. Ene. L. 923, 941, note; 1 Peters, 650; Fetter,Eq. 266 ; 6 Leigh, 175, s. c. 29 Am.Dec. 208. Injunction: Civil Code, §§4924, 4913; Fetter, Eq. 290, 294; 111 Ga. 395. Unilateral contracts : 103 Ga. 134, and citations. Signature of party to be charged, or his agent, sufficient; not essential that the other party sign: 22 Am. Eng Ene. L. (1st ed.) 978, note; 70 Ga. 198; 82 Ga. 128 ; 104 Ga. 164; 111 Ga. 455; 33 Fed. Rep. 530; 80 Ala. 360; 79 Ala. 180; 10 Mont. 5. Bringing suit makes remedy mutual: 4 R. I. 25, s. c. 67 Am. Dec. 500 ; 1 L. R. A. 380; 59 111. 298; 28 S. E. Rep. 175; 36 S.E. Rep. 992; 23 N. J. Eq. 536; 35 Md. 352; 56 Fed. Rep. 1; 81 N. W. Rep. 247; 14 S. E. Rep. 255; 10-Nev. 355; 18 N. J. Eq. 126; 90 Am. Dec. 613; 75 Pa. St. 483; 27 N. W. Rep. 176 ; 45 N. J. Eq. 95. Larned did not withdraw until after the minds of the parties had met in closing the trade, and after he had, ratified. The parol was not in reference to the sale, but related to the manner of delivery: 97 Ga. 567. Agent to sell has the right to prescribe manner of delivery: Civil Code, § 3023; 67 Ga. 595,598; 110 Ga. 382; 111 Ga. 876. Cash means on delivery, not in advance: Anderson, Law Diet. 154; 8 Yt. 255. Sometimes 30 days after delivery: 3 Mo. App. 142. On sale of land, in the absence of express agreement, payment of purchase-money and delivery of title deed are concurrent acts: 88 Ga. 327. Sale was made when Wentworths accepted offer; it was then Larned’s duty to deliver: 67 Ga. 595, and cit. Wentworths were always ready: 46 Ga. 278; 28 Am. Eng. Ene. L. (1st ed.) 92, 93, and cit. The term “ Tuckahoe” describes a tract of land definitely. Description by metes and bounds not necessary when thing well known by name: 20 S. E. Rep. (Ya.) 831; 12 Ga. 431; 110 Ga. 163; Id. 359; 88 N. C. 293; 147 Mass. 304; 7 Jones (N. G), 609, s. c. 78 Am. Dec. 267; 2 Ired. (N. C.) 457; 27 S. E. Rep. (W. Ya.) 268; 175 HI. 328; 51 N. E. Rep. 580; 20 N. J. Eq. 316; 16 S. E. Rep. 274; 114 111. 388, s. e. 55 Am. Rep. 871; 15 Pac. Rep. (Kan.) 536; 75 Ala. 285; 83 Mo. 152; 8 Am. & Eng. Ene. L. (1st ed.) 724 — 5. Identification a question for a jury: 81 Ga. 260; 83 Ga. 645; 101 Ga. 160; 120 Cal. 311; 49 Pac. 563; affirmed 52 Pac. 586; Eetter, Eq. 277, and citations; 92 Ind. 560; 98 Mass. 545, s. c. 96 Am. Dec. 671; 58 Conn. 12; 90 Ala. 454. Less certainty •required in contract to convey than in deed: 28 Am. & Eng. Enc. L. (1st ed.) 98; 36 N. E. Rep. 836. Sufficiency of letters and telegrams: Civil Code, §§3034, 5192; 110 Ga. 302, and citations supra. The option renewal receipt contains all the requisites, to wit, parties, subject-matter, price, and consent of parties to all necessary terms. All this is in writing: Civil Code, §§ 5202, 3675; 73 Ga. 400; 80 Ga. 572; 112 Ga. 359. 110 Ga. 159, easily distinguished. Specific performance granted more readily for vendee than for vendor: 5 Wait, Ac. &Def. 816 and cit.; 22 Am. &Eng. Ene. L. (1st ed.) 942. Statute of frauds should not he used as an instrument of fraud: 5 Wait, Ac. & Def. 797 — 8. Not essential that the number of acres specified in the tract should be there; purchase was in solido: Civil Code, §§ 4041,4042; 111 Ga. 346; 106 Ga. 193; 78 Ga. 618; 22 Am. & Eng. Ene. L. (1st ed.) 943. Ill Ga. 490, is distinguishable, and 81 Ga. 708, and 100 Ga. 651, are not in point.</p>

Contempt — petition for discharge. Before Judge Candler. Bibb superior court. September 28, 1901. The facts leading up to the imprisonment of the plaintiff in error for contempt of court are fully set forth in the- case of Tindall v. Nisbet, 113 Ga. 1114.

<p>1. Where upon the trial of a criminal case the defendant neither demurs to the indictment nor moves to quash it, but voluntarily goes to trial upon the merits of the case, this court can not consider an assignment of error in a bill of exceptions sued out in such case, alleging that the trial court “should have ruled that [the accused] was not indictable at all for the offense charged in the” indictment.</p> <p>2. Belatively tb a package of whisky shipped by express from another State to a named person in a designated city in this State, to be there delivered to him upon his paying to the agent of the express company at that point a stipulated price therefor, the penal laws of this State in reference to the unlawful sale of intoxicating liquors become of force when such package has reached the point of its destination and is being held by such express agent until the sale of the whisky has been completed in accordance with such directions of the consignor.</p>

<p>1. Although newly discovered, evidence may tend to establish the truth of a material contention in direct support of which testimony was introduced at th'e trial, such evidence is not merely cumulative when it relates to a particular fact concerning which no witness had already testified. Thus, where in a criminal trial the defense was alibi, and the accused introduced witnesses who testified that on the day of the commission of the crime they saw the accused in a county other than that in which it was perpetrated, he being on that day, according to the testimony of some of them, at one plaoe in the county to which their testimony related, and, according to the testimony of others of them, at other places therein, and, according to the testimony of all, too far 'from the scene of the offense to have been possibly present at the time of its perpetration, newly discovered testimony of still another witness, which plaped the accused, in the county where the other witnesses located him on the day in question, at a different hour and place from any testified to by them, is not merely cumulative, though it of course tended, like the other testimony, to establish the truth of the defense of alibi.</p> <p>2. In a case of the nature above indicated, where at best the correctness of the verdict of guilty is to be most gravely doubted, and apparently there should' have been a verdict of acquittal, a new trial should be granted upon such newly discovered evidence ; for under such circumstances it is most probable that upon another trial that evidence would, in connection with that which had been previously introduced, result in a verdict of not guilty.</p> <p>3. Applying these rules to the present case, the court should have granted a new trial; for it appeared that there was no want of diligence in discovering the new evidence, which was of the character outlined above, and the showing made in respect thereto was in all respects legal and complete.</p>

Petition for injunction. Before Judge Roberts. Irwin superior court. September 11, 1901. cited, (1) as to the power of the General Assembly to grant a special charter to the defendant: Civil Code, § 5732; Acts 1880-1, p. 156; Maxwell v. Tumlin, 79 Ga. 570; Mathis v. Jones, 84 Ga. 804; Mattox v. Knox, 96 Ga. 403; Sasser v. Martin, 101 Ga. 452, 453, 454; Caldwell v. State, Id. 557; Papworthy.

<p>Injunction. Before Judge Evans. Tattnall superior court. August 26, 1901.</p>

<p>1. There was sufficient evidence to warrant the verdict returned in this case.</p> <p>2. A ground of a motion for a new trial alleging error in admitting testimony should disclose what this testimony was.</p> <p>3. It is in a criminal case proper to refuse a request to give a charge not warranted either by the evidence or the statement of the accused.</p> <p>4. A new trial will not be granted because of a refusal of a request to charge,, when it is fully covered in the general instructions given to the jury.</p> <p>6. The charge complained of as intimating an opinion upon the evidence was not open to this objection.</p> <p>6. There was no merit in the ground of the motion for a new trial based on newly discovered evidence.</p>

<p>Indictment for robbery. Before Judge Butt. Harris superior court. July 13, 1901.</p>

<p>Indictment for misdemeanor. Before Judge Falligant. Chat-ham superior court. September 21, 1901.</p>

<p>Indictment for murder. Before Judge Candler. Dooly superior court. September 23, 1901.</p>

<p>Accusation of cheating and swindling. Before Judge Bower. City court of Bainbridge. October 3, 1901.</p>

<p>Indictment for assault and battery. Before Judge Bower. City •court of Bainbridge. October 3, 1901.</p>

<p>Indictment for selling liquor. Before Judge Felton. Jackson superior court. September 30, 1901.</p>

<p>1. It is, while charging upon a statement made hy one on trial for crime, erro' neous to use language calculated to impress the jury that they ought to he1 cautious in giving credit to what he said.</p> <p>2. A judge should not in the hearing of a jury compliment a witness.</p>

<p>Indictment for murder. Before Judge Hart. Putnam superior court. October 7, 1901.</p>

<p>The evidence as contained in the present record did not authorize the conviction of the accused.</p>

<p>Indictment for keeping open a tippling-bouse on the Sabbath day. Before Judge Nottingham. City court of Macon. October 19, 1901.</p>

<p>Where, upon the trial of one charged with resisting an officer in the execution of a mortgage fi. fa., it appeared from the evidence offered by the State, in connection with the fi. fa., that it was issued upon a proceeding, under the act of December 16, 1899, to foreclose a bill of sale which was absolute upon its face, and that the affidavit upon which the fi. fa. was based failed to show that the bill of sale was given to secure a debt, the fi. fa. was not legal process, and, upon proper objection made by the accused, should not have been admitted in evidence.</p>

<p>Indictment for murder. Before Judge Bussell. Franklin superior court. September 25, 1901.</p>

<p>Complaint. Before Judge Harris. Heard superior court. January 30, 1901.</p>

<p>Action for damages. Before Judge Candler. Pike superior court. January 26, 1901.</p>

<p>Certiorari. Before Judge Harris. Coweta superior court. March term, 1901.</p>

<p>Injunction. Before Judge Roberts. Wilcox superior court-August 29, 1901.</p>

<p>Petition for injunction. Before Judge Spence. Decatur superior court. October 2, 1901.</p>

<p>Petition for injunction. Before Judge Russell. Franklin superior court. October 24, 1901.</p>

<p>1. A railroad company can not lawfully demand of one passenger more fare for his transportation from one station to another upon its line than it is in the habit, under like conditions and circumstances, of charging others for the same service.</p> <p>2. Although a railroad company has a right to adopt and enforce a rule requiring passengers getting on its trains without tickets to pay more fare than it charges persons who purchase tickets, yet it can not exact such higher rate from a passenger who has no ticket, unless it has afforded him a reasonable opportunity to purchase one before entering the cars.</p> <p>3. Applying these principles to thte allegations contained in the plaintiff’s petition, it follows that such petition set forth a cause of action, and therefore the court erred in sustaining the motion to dismiss it.</p>

<p>A charge based upon the theory that the plaintiff was called upon to act in a sudden emergency tending to produce excitement or mental perturbation should not be given when there is no evidence tending to show that such an emergency in fact existed.</p>

<p>1. Where upon the interlocutory hearing of an application for equitable relief, such as the granting of an injunction or the appointment of a receiver, the . application was refused, and subsequently, before a final hearing, the equitable petition was voluntarily dismissed by the plaintiff, nothing was adjudicated save that, at the hearing referred to, the plaintiff did not show himself entitled to the temporary equitable relief sought.</p> <p>.2. An attachment issued upon an affidavit administered by a clerk of the superior court is absolutely void, and does not constitute a basis for rendering any valid judgment against the defendant therein.</p> <p>■3. Applying the rules-above announced to the facts disclosed in the present record, the plaintiff in error is entitled to a new trial.</p>

<p>Action for damages. Before Judge Janes. Polk superior court. June 12, 1901.</p>

<p>When a plaintiff, by his counsel, voluntarily dismisses his petition, whether for a good or bad reason, the court has no authority, over objection by the defendant, to reinstate the action.</p>

<p>Complaint for land. Before Judge Janes. Paulding superior court. August 6, 1901.</p>

<p>Complaint for land. Before Judge Janes. Haralson superior court. July 23, 1901.</p>

<p>Equitable petition. Before Judge Harris. Carroll superior court. February 1, 1901.</p>

<p>Complaint. Before Judge Harris. Troup superior court. February 4, 1901.</p>

<p>Bail-trover. Before Judge Longley. City court of LaGrange. April 15, 1901.</p>

<p>The petition was plainly without merit, and there was accordingly no error in dismissing it on demurrer.</p>

<p>One who bases a petition for the removal of obstructions from a private way solely upon an alleged prescriptive use thereof by himself for more than seven years, and who fails to prove such use, is not entitled to a judgment in his favor. This is so for the reason that he does not make out his case as laid.</p>

<p>Action for damages. Before Judge Clark. City court of Forsyth. May 16, 1901.</p>

<p>Foreclosure of mortgage. Before Judge Reagan. Monroe .superior court. May 21, 1901.</p>

<p>Action for damages. Before Judge Reagan. Henry superior court. - June 17, 1901.</p>

<p>In an action against a principal and sureties on a sheriff’s bond, a verdict in favor of the plaintiff for designated sums as principal, interest, and attorney’s fees, which distinctly declares that a specified portion of the gross sum (in this case less than one half) is to be paid by the principal, and the remainder by the sureties, is illegal and should be set aside on motion for a new trial.</p>

<p>1. There was evidence warranting a finding that the plaintiffs’ houses were destroyed by fire communicated by sparks emitted from the defendant’s engine, and that the defendant was guilty of negligence in the manner in which the engine was equipped and managed at the time when the fire was thus communicated to the houses.</p> <p>2. Inasmuch as the engine which it was claimed emitted the sparks which set fire to the plaintiffs’ houses was clearly identified by the evidence, a charge which instructed the jury that if they did not believe this engine had been identified by the evidence, they might consider evidence as to the management and equipment of other engines of the defendant while running by the plaintiffs’ houses and going in the same direction as the engine which it was claimed caused the fire, while not adjusted to the evidence, was not calculated to prejudice the defendant to such an extent as to require that the verdict against it should be set aside.</p> <p>S. That the verdict for the plaintiffs was for a less amount than that demanded by the evidence does not afford the defendant any just cause of complaint.</p> <p>4. When independently of the legal presumption arising against a railroad company there is evidence which would warrant a finding against it, it is proper to refuse to charge that this presumption is rebuttable, and that testimony of the employees of the company having this effect, “in the absence of anything to discredit and contradict it, can not be arbitrarily disregarded.”</p> <p>5. In a case of the character disclosed by the present record, it is competent to prove, for the purpose of impeaching a witness who has testified that the fire was caused by other agencies than the railroad company, that on the night upon which the fire occurred he expressed a decided conviction that the fire was caused by the railroad company.</p> <p>6. The propositions announced in the foregoing notes dispose of all the material questions involved in the present case. The requests to charge which are not dealt with above were covered by the general charge, and there was no error requiring the granting of a new trial.</p>

<p>The sole question at issue being whether the debt on which the execution in favor of the plaintiff was founded was created for the purchase of the property levied on, and there being no evidence that it was, the verdict to the contrary was unsupported by evidence, and the superior court erred in overruling the certiorari complaining of the finding of the jury in the justice’s court.</p>

<p>Where an order continuing the hearing of a motion for a new trial is susceptible of a construction which would allow the movant to prepare and file a brief of the evidence on the day to which the hearing is continued, and of a construction which would not preserve this right, this court will adopt that construction of the order which is placed upon it by the judge at the final hearing, when he dismisses the motion for a new trial because no brief of evidence was filed when the motion was first called.</p>

<p>Certiorari. Before Judge Reagan. Monroe superior court. March 7, 1901.</p>

<p>Equitable petition. Before Judge Estes. Hall superior court. May 30, 1901.</p> <p>The petition was by the heirs at law of Asa L. Griffin, deceased, against S. S. Carter. It alleged, in brief, that Carter was in possession of a certain tract of land of which Griffin at the time of his death was the owner; that on March 1, 1890, Griffin executed a conveyance of the land to the Georgia Loan and Trust Company, as security for his note of that date 'for $1,200 principal, and for interest, and received from the company a bond conditioned to re-convey to him on payment of the debt; that Carter, while the title was still in the company, induced Griffin to execute to him a deed to the land as security for an alleged debt of $804, though Griffin’s indebtedness to him at that time was less than $200; that when the note to the Georgia Loan and Trust Company matured, Griffin was not prepared to pay it, and Carter offered to advance the amount due the company, and did so, and received from the company a transfer of the note and a quitclaim deed to the land; and having so obtained the title, which he took as security only, Carter, to carry out a scheme to acquire absolute title to the land, proceeded to get possession of it, for a greatly inadequate consideration, taking advantage of the disparity in mental ability between himself and Griffin, who was old, infirm in body, and weak in mind, and who reposed great confidence in him; that in 1896 Carter notified Griffin that if he did not pay the debt, or give him an absolute deed to the land, or surrender possession of it, he would proceed at once to dispossess him; and Griffin, rather than be turned out of his home, which in his weakness he believed would be the consequence of refusal to comply with Carter’s demand, yielded, and Carter took possession of the premises, except the dwelling which Griffin then and until his death occupied; that Griffin delivered to Carter the bond for title which he held, but Carter retained the note and the other evidences of indebtedness; and that Carter has since continued in possession of the premises, has received the rents, and has realized a large sum from the sale of timber which he caused to be cut from the land. The plaintiffs prayed for an accounting, and that they recover the land and have judgment for such balance as might be found, to be dire them by the defendant; or, if it should be found that there was a balance due the defendant, that it be decreed that the land be sold and the debt paid from the proceeds, and that the remainder of the proceeds, if any, be divided among the plaintiffs. The defendant in his answer alleged that he was the absolute owner of the land; that Griffin had sold it to him in satisfaction of the debt which he held against Griffin, and in further consideration of the payment of $235 in cash. He denied that he had taken advantage of Griffin, and denied the allegations as to Griffin’s mental condition.</p> <p>At the trial the defendant testified that in March, 1895, he proposed to give Griffin, for the land in question, the amount of Griffin’s indebtedness to him; that Griffin said he would accept the proposition if the defendant would in addition pay him $250 in cash; that they agreed on $235 as the amount to be paid to Griffin as the difference, and he paid it to Griffin, and Griffin accepted it; that the agreement for the sale was oral, and was never reduced'to writing; that Griffin’s notes were marked paid, and the bond for title was canceled; that no one else was present when the trade was made; that after the trade had been made he offered to give Griffin a writing to the effect that Griffin should have the right to repurchase the land by paying him his money; that the writing was to be something like a bond; that the agreement to that effect had nothing to do with the trade that had been made; that it was understood that a lawyer was to prepare the writing; that on May 24,1895, they met again and signed a writing of the kind indicated; that the $235 was paid and the notes and the bond were canceled on the day on which this writing was signed; that at the time the trade was made Griffin owed him the amount of two notes, one for $1,296 — the sum he had paid the Georgia Loan and Trust Company for Griffin, and interest, and the other for $804 and interest, both dated March 13,1893, and bearing interest from that date; that the amount due, together with the $235 paid to Griffin, made the sum of $2,657.41; that Griffin failed to pay any part of the sum stipulated in the written agreement, and delivered possession of the land to him, and he improved it, etc. The notes referred to were introduced in evidence. Across the face of each were written the words, “ Paid by land bought, May 24th, 1895.”</p> <p>The written agreement of May 24, 1895, was introduced in evidence, and was as follows: “ This contract, made and entered into this day between S. S. Carter of the one part and Asa L. Griffin pf the other part, witnesseth: that said S. S. Carter has and does hereby rent to the said Asa L. Griffin that certain plantation [describing the land in question] which was conveyed by said Asa L. Griffin to said S. S. Carter by deed dated March 13,1893, for the year 18953 for the price and sum of (131.27) one hundred and thirty-one and twenty-seven one hundredths dollars, for which rent the said Asa L. Griffin has given to the said S. S. Carter his note of this date, due December 25, 1895, with interest after maturity at eight per cent, per annum. It is further agreed that if the said Asa L. Griffin shall and does pay to the said S. S. Carter the sum of ($2,657.41) twenty-six hundred and fifty-seven and forty-one hundredths dollars on or before the 25th day of December, 1895, in lawful money of the United States, in addition to the said amount of said note for rent, then and in that event the said S. S. Carter hereby binds and obligates himself, his heirs, executors, administrators, and assigns, in the penalty of one thousand dollars of like lawful money, to make, execute, and deliver to the said Asa L. Griffin, his heirs and assigns, a good and valid quitclaim deed to the said hereinbefore-described land and premises and all the appurtenances thereto belonging, and to suffer the said Asa L. Griffin, his heirs and assigns, to remain in quiet and peaceable possession thereof. It is further understood and expressly agreed that time is an essential part'of this contract, insomuch that if the said Asa L. Griffin shall and does fail to pay to the said S. S. Carter as well the said $131.27, evidenced by said note for the rent, and the. said sum of $2,657.41, by or before the said 25th day of December, 1895, then the said S. S. Carter shall have the right to proceed to collect said note for rent according to law, if not already paid, and shall also have the right and privilege to enter upon and take full and complete possession of said land and premises so hereinbefore described, with the appurtenances thereto belonging, without having to resort to any process of law whatever. And the said Asa L. Griffin is then and in that event to yield up, turn over, and deliver to said S. S. Carter, his heirs; executors, administrators and assigns, quietly and peaceably, full, complete, and ample possession of the said land and premises and every part and parcel thereof; in other words, if the said Asa L. Griffin fails to pay the said S. S. Carter the sum of ($2,788.68) twenty-seven hundred and eighty-eight and 68/100 dollars on or by said 25th day of December, 1895, then said S. S. Carter is to have possession of said land and premises and the appurtenances, and right of entry therein for that purpose, at any time after said 25th day of December, 1895, and said Asa L. Griffin is to give up possession of the same to said S. S. Carter. In witness whereof the said S. S. Carter and Asa L. Griffin have hereunto set their hands and seals this 24th day of May, 1895.” (Signed and sealed by the parties.)</p> <p>The attorney who prepared this contract testified as to what took place between the parties at the time it was signed, and, after stating that it covered all the transactions between them that day, except the cancellation of the notes and of the bond for title, testified as follows: “ The notes and bond for titles were to be canceled and delivered that day and done away with, the way they expressed it, so that Mr. Griffin no longer owed Mr. Carter any debt, but that .Mr, Carter owned the land; that was what they done.and said.”' This.testimony was ruled out on the ground that it contradicted .■the. writing. ■, ^The evidence as to the mental condition of Griffin was. conflicting, some witnesses testifying that it was good, and that he was fully able to contract, and others that his mind was weak. Some of the witnesses testified that in 1895 the land was worth $5,000, others that it was not worth more than $3,000. The verdict was as follows: “We, the jury, find for the plaintiff, and decree that the land in controversy be sold, and the cost of the sale be paid, and that S. S. Carter be paid the sum of $3,570.38, and the remainder, if any, be divided among the heirs of Asa L. Griffin, deceased.” The defendant’s motion for a new trial was overruled, and he excepted. The motion was on the grounds that the verdict was contrary to law and the evidence, and on other grounds which, so far as material to an understanding of the decision, are set out in the following opinion.</p> <p>cited :• Civil Code, §§3675,par. 1,5204; 9 Ga. 156;" 49 Ga. 518; 14 Ga. 434, 435; 63 Ga. 102; 68 Ga. 475; 7 Am. & Eng. Ene. L. (1st ed.) 91; 15 Am. & Eng. Ene. L. (1st ed.) 793; 7 Cranch, 218 ; Abbott’s Trial Ev. (2d ed.) 361; 1 Gr. Ev. (15th ed.) §§ 275-284.</p>

<p>1. Under the statutes of this State, a railroad company is liable for injuries to the person of an employee by the negligence or misconduct of other employees of the company, without negligence on his part, whether such injuries are connected with the running of trains or not. Under this rule of law the declaration in the present case set forth a cause of action, which was supported by evidence; and thei’efore the trial judge did not err in refusing, upon motion of the defendant, to dismiss the plaintiff’s petition as failing to set forth a cause of action ; nor in refusing to grant a nonsuit.</p> <p>2. The trial judge did not err in refusing to grant a new trial.</p>

<p>1. Where a promissory note is traded before maturity to one who has no knowledge of any defect in the consideration thereof, a subsequent taker from him is protected against the defense of failure of consideration.</p> <p>2. Under section 3702 of the Civil Code, in order for an alteration in a promissory note to defeat recovery thereon, it is not sufficient that the alteration be material; it must also be intentional, and made by one claiming under the note, with intent to defraud.</p>

<p>Equitable petition. Before Judge Hart. Wilkinson superior court. April 1, 1901.</p>

<p>1. The contract involved in the present case created a general agency for the sale of musical instruments ; and it was within the scope of such an agency to-place an instrument on trial with another, taking from him a portion of the purchase-price and allowing him the privilege at the expiration of a fixed time of either paying the balance of the purchase-price and retaining the instrument, or of returning the same and having the money advanced in part payment refunded to him.</p> <p>2. In the trial of a suit brought by the employer of such an agent to recover possession of an instrument which had been placed by the agent with the defendant, under an agreement of the nature above indicated, it was not error to refuse to strike an answer of the defendant setting forth the agreement, alleging that, at the expiration of the time therein fixed, demand'had been made upon the agent to retake possession of the instrument and refund the money advanced, and that he had failed to comply with the agreement, and claiming the right to retain possession of the property until the money advanced as part payment of the purchase-price had been refunded.</p> <p>3. Where in such a case the plaintiff had given a bond conditioned to have the property forthcoming to answer the judgment, and a general verdict was returned in favor of the defendant, it was not error to enter up a judgment on this verdict,-that the plaintifl restore the property to the defendant within a given time, or in default thereof that the defendant recover of the plaintiff and the security on the bond the amount which had been advanced by the defendant as part payment of the purchase-price. Such a judgment followed the pleadings, and was in consonance with the proper practice in such cases.</p> <p>4. The evidence authorized the verdict. The requests to charge, so far as legal and pertinent, were covered by the general charge. The charge, taken as a whole, fairly submitted to the jury the issues involved, and if there was any error in any portion of the charge, it was not of a character requiring the granting of a new trial.</p>

<p>1. When the plaintiff in an equitable petition for injunction brings his case within tlie provisions of section 4927 of the Civil Code, it is erroneous to qualify the order granting the injunction by providing therein for the dissolution of the injunction upon the giving by the defendant of a bond for the eventual condemnation-money.</p> <p>2. It is too late, after an application for an interlocutory injunction has been heard and determined upon its merits, to raise the question that the petition was not duly verified.</p>

<p>Petition for injunction. Before Judge Hansell. Lowndes superior court. September 21, 1901.</p>

<p>,1. The effect of the act approved December 21, 1897 (Acts 1897, p. 32), was to declare that an appeal in forma pauperis in any suit at law, or proceeding in the court of ordinary, could only be effected when the appellant deposed to other facts required by the statute, and that owing to his poverty the appellant “is unable to pay the costs or give the security required by law in cases of appeal.” The act approved December 15, 1900 (Acts 1900, p. 55), which sought to amend the act of 1897 only by making its provisions applicable to “proceedings in the court of ordinary,” is nugatory, and did not in any way affect the terms of the act which it sought to amend. It therefore follows that a provision found in the act of 1900, which excludes a certain class of cases from its operation, is without effect.</p> <p>2. The affidavits in the present case, having been made in the conjunctive, and not in the disjunctive form as required by the statute, did not have the legal effect of entering an appeal, and should have been dismissed on motion.</p>

<p>Action for false imprisonment. Before Judge Reagan. Spalding superior court. May 21, 1901.</p>

<p>Complaint. Before Judge Reagan. Eayette superior court. June 27, 1901.</p>

<p>Equitable petition. Before Judge Reagan. Pike superior court. April 29, 1901.</p>

<p>Complaint. Before Judge Hammond. City court of Griffin. August 9, 1901.</p>

<p>1. An exception of fact to an auditor’s report, made in a statutory proceeding for the settlement of executors’ accounts, should not have been stricken for insufficiency, when it specified as erroneous the finding of the auditor, in a given paragraph of his report, that the executors were indebted to the estate of their testator in a stated sum for rentals received, by them for certain described property for two designated years, and assigned as a reason why the finding was erroneous that, under the testator’s will, which was in evidence before the auditor, such property was devised to a named legatee, and that if the executors collected any rent for the same they owed it to the legatee and not to the estate.</p> <p>2. The other exceptions to the report in this case, even if sufficient as to form, are shown by the record to be wholly without merit, and the striking of« them, being, therefore, not injurious to plaintiffs in error, is not cause for reversal.</p>

<p>Certiorari. Before Judge Hart. Laurens superior court. January 30, 1901.</p>

Complaint. Before Judge Adams. City court of Dublin. March 15, 1901. “The petition of Joe M. Eordham, ordinary of Laurens county, who brings this petition for the use of Mary Jane Mathis and her three minor children, shows the following facts, to wit: 1.

<p>1. In a suit to recover damages alleged to have been sustained in consequence of the negligence of the defendant, a charge which in effect instructs the jury that if they believe from the evidence that, at the time the injury was received, a given state of facts existed, such facts would constitute negligence on the part of the defendant, is erroneous, when the facts are not such as would, under the operation of a statute or valid ordinance, constitute negligence per se.</p> <p>2. The opinion of a witness is not admissible in evidence when all the facts and circumstances are capable of being clearly detailed and described so that the jurors may be able readily to form correct conclusions therefrom.</p>

<p>Certiorari. Before Judge Hart. Jasper superior court. March 25, 1901.</p>

<p>1. When oti an application for a new trial an order was passed to hear the same in vacation, and the order expressed the date for the hearing as “■-day of-, 1900,” and by consent it was understood that the date of the hearing should thereafter be definitely fixed; if the motion was not heard before the next term of the court in which it was made, it stood for a hearing at such term. If no action was had in relation thereto at such term, it stood continued to the next term, regardless of the terms of the order originally passed. While the original order contemplated that a brief of evidence should be presented and a hearing had in 1900, the failure to fix a definite day and hear, or adjourn the hearing, had the effect above indicated.</p> <p>2. The affidavit in forma pauperis made by plaintiff in error in the present case, purporting to have been executed before the clerk of a county court in another State, is invalid, because it is not made to appear in a legal way that the person administering the affidavit was in fact an officer authorized to administer an oath.</p>

<p>Complaint' for - land. Before Judge Hart. Baldwin superior court. . April 15, 1901.</p>

<p>Action for damages. Before Judge Adams. City court of Dublin. June 7, 1901.</p>

<p>Complaint. Before Judge Hart. Greene superior court. July 8, 1901.</p>

<p>As the plaintiff in the present case failed to successfully carry the burden of showing that the damages which he sustained were caused by any act of the defendant alleged to be negligent, a verdict in his favor was unwarranted and ought to have been set aside.</p>

<p>Petition for mandamus. Before Judge Hart. Laurens superior court. July 25, 1901.</p>

<p>Action for damages. Before Judge Hart. Putnam superior court. August 19, 1901.</p>

<p>Action for damages. Before Judge Butt. Muscogee superior court. February 5,1901.</p>

<p>Equitable petition. Before Judge Butt. Muscogee superior court. February 7, 1901.</p>

<p>Motion for new trial. Before Judge Butt. Muscogee superior court. March 5,1901.</p>

<p>Affidavit of illegality. Before Judge Butt. Marion superior court. April 22,1901.</p>

<p>Rule to distribute money. Before Judge Butt. Marion superior court. January 29, 1901.</p>

<p>The awarding of a nonsuit is erroneous when the evidence for the plaintiff authorizes a finding that he has proved his case as laid.</p>

<p>Equitable petition. Before S. P. Gilbert, judge pro hac vice. Marion superior court. August 19, 1901.</p>

<p>Though a landlord may, for amounts due for rent or supplies, have a lien upon the crops of his tenant which is entitled to priority over a bill of sale executed by the latter to a third person, the landlord can not, as against that person, acquire title to the crops merely by taking possession of the same. The proper method of asserting the priority of such a lien is by foreclosing the same, causing the crops to be sold thereunder, and claiming the proceeds of the sale.</p>

<p>1. It is the right of an executor offering land for sale at public outcry to withdraw the same at any time before the hammer falls.</p> <p>2. Although the motive of the executor in withdrawing the property from sale before the bid was accepted was the result of collusion between himself and another who had bargained for the premises at a private sale, and the with drawal was made with the design of completing the private sale, nevertheless the person who had made the last and highest bid before the same was withdrawn could not insist upon the right to take the land as a purchaser. While such collusion between the executor and another would be open to inquiry by legatees and creditors, it is not open to inquiry at the instance of a stranger.</p>

<p>Action for breach of warranty. Before Judge Butt. Marion superior court. January 4, 1901.</p>

<p>Equitable petition. Before Judge Butt. Muscogee superior court. June 13, 1901.</p>

<p>Action for damages. Before Judge Butt. Muscogee superior court. July 13, 1901.</p>

<p>Inasmuch as a judgment in rem, founded on the foreclosure of a mortgage, does not become dormant, such a judgment needs no revival, and a proceeding for this purpose is useless and unnecessary.</p>

<p>Petition for mandamus. Before Judge Holden. Hancock superior court. October 8, 1901.</p>

<p>Accusation of misdemeanor. Before Judge Hammond. City court of Griffin. July 5, 1901.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. August 5, 1901.</p>

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

<p>Indictment for selling liquor. Before Judge Hodnett. City court of Carrollton. September 9, 1901.</p>

<p>Indictment for selling liquor. Before Judge Janes. Douglas superior court. October 8, 1901.</p>

<p>1. Mere failure to charge the law with respect to the impeachment of witnesses will not, in the absence of a request to charge Upon the subject, be ground for a new trial.</p> <p>2. On the trial of one of two persons jointly indicted, the declarations of the other that he alone committed the offense with which they are charged are not admissible in evidence in favor of the accused on trial.</p> <p>3. There was sufficient evidence to warrant the verdict complained of, and the record discloses no reason for granting a new trial.</p>

<p>Indictment for murder. Before Judge Eeagan. Fayette superior court. October 28, 1901.</p>

<p>Accusation of misdemeanor. Before Judge Calhoun. Criminal court of Atlanta. October 5, 1901.</p>

<p>Indictment for murder. Before Judge Falligant. Chatham superior court. September 26, 1901.</p>

<p>1. When in a close case the defense of alibi is set up and sustained by evidence, failure to charge upon the law of alibi is cause for a new trial.</p> <p>2. It is also in such a case cause for a new trial that the judge, after referring in his charge to circumstances disclosed by the evidence which bore against the accused, added the words : “You are to consider all these things, gentlemen, and give them weight as sensible men.”</p>

<p>Indictment for misdemeanor. Before Judge Janes. Polk superior court. October 17, 1901.</p>

<p>Indictment for murder. Before Judge Hart. Jasper superior court. November 5, 1901.</p>

<p>1. The petition set forth a cause of action as against the demurrers filed thereto, and there was no error in overruling such demurrers.</p> <p>2. The common-law rule, that in a joint action all of the plaintiffs must recover or none can, does not prevail in equity.</p> <p>3. When a person of full age and laboring under no disability is named as plaintiff in a suit filed by a duly licensed attorney at law, the presumption is that the attorney had authority to file the suit in behalf of such person. This presumption, however, is not conclusive, but may be rebutted by proof. Nor does the fact that the attorney who filed the suit abandoned the same before' it came to trial prevent a decree rendered therein in favor of the defendant from being prima facie binding upon- the party in whose behalf the suit was filed.</p> <p>4. The evidence authorized the verdict, and none of the assignments of error in the motion for a new trial required the granting of a new trial.</p> <p>6. The decree rendered followed the verdict and was authorized by the pleadings, so far as the rights of four of the plaintiffs were concerned; but in so far as the decree was in favor of one of the plaintiffs named therein it was erroneous. Direction will be given that the decree be modified so as to authorize a recovery in behalf of four of the plaintiffs instead of five.</p>

<p>Petition for injunction. Before Judge Hansell. Colquitt superior court. October 28, 1901.</p>

<p>The mandate of the constitution, embraced in that paragraph thereof which declares that the proceeds arising from the sale of the public property owned by the State shall be applied to the payment of the bonded debt of the State, and used for no other purpose whatever, is fully met when such proceeds are devoted to the payment of the interest on the public debt; because the interest contracted to be paid is as much a part of that debt as the principal named in the bond.</p> <p>Fish and Cobb, JJ., dissenting. 1. In interpreting the provisions of a constitution it is to be presumed that the words therein used were employed in their natural and ordinary meaning ; and where a word has a technical as well as a popular meaning, the courts will generally accord to it its popular signification, unless the nature of the subject indicates, or the context suggests, that it is used in a technical sense.</p> <p>2. Constitutions are the result of popular will, and their words are to be understood ordinarily in the sense that such words convey to the popular mind.</p> <p>3. A constitution is to be considered as a whole, and effect is to be given, if possible, to each section, clause, and word; and if the language of any part be doubtful, it must be interpreted by every fair intendment to harmonize with the main purpose, and not to defeat it.</p> <p>4. The presumption is that the same meaning attaches to a given word or phrase wherever it occurs'in a constitution; and where a word or phrase is used in one part of a constitution in a. plain and manifest sense, it is to receive the same interpretation when used in every other part, unless it manifestly appears, from the context or otherwise, that a different meaning should be applied to it.</p> <p>5. In inteipreting a provision in a constitution, the meaning of which is doubtful or ambiguous, the courts, in endeavoring to arrive at the intention of the people, will consider the object sought to be accomplished and the mischief sought to be remedied by the provision, and to this end will deal with the provision in the light of prior or contemporaneous history and the conditions and circumstances under which the constitution was framed.</p> <p>C. The proceedings and debates of a constitutional convention, while powerless to vary the terms of the constitution, are nevertheless valuable aids in determining the purpose and consequent meaning of a doubtful provision.</p> <p>7. The power of legislation may be taken away from the lawmaking power by the constitution as well by implication as by express prohibition, and prohibitions against legislation which result by implication are equally as effectual as when they are express, and are to be regarded in the one case no less than in the other.</p> <p>8. When all of the provisions of a constitution on agiven subject disclose a plan for the regulation of the finances of the State, it is necessarily implied from the instrument that the General Assembly should not pass any law which would have the effect of destroying such plan.</p> <p>O. While legislative and executive construction of a constitution, as fixed by a long-continued and unbroken exercise of a given power claimed to be authorized by the constitution, is a weighty argument in favor of the constitutionality of such exercise of authority, a single exercise of power either by the legislative or executive department in a long period of years is entitled to little or no weight when the question is before the courts for the first time, and no rights of any one interested in the case in hand have vested under such exercise of authority.</p> <p>10. An interpretation of a constitutional provision by the General Assembly, in order to be entitled to weight as contemporary interpretation, must be the result of legislation passed very near the time that the constitution was adopted, and legislation passed nearly five years after the adoption of the constitution is not entitled to be ranked as contemporary interpretation of the constitution by the General Assembly in the sense of the rule just referred to.</p> <p>11. A doubt as to the constitutionality of any proposed legislative enactment should in any case be reason sufficient for refusing to adopt it.</p> <p>12. Generally there is a presumption from the mere passage of an act or resolution by the General Assembly that the members of that body have deliberately passed upon the question of the constitutionality of the act or resolution ; and as a result of this presumption the courts, in case of doubt as to the constitutionality of the legislation, will hold the same to be constitutional, thus according to the members of the legislative department due credit for having deliberately and conscientiously passed upon the question, and giving to the legislation the weight which it should receive as the result of a deliberate and conscientious exercise of authority by the members of the legislative department of the government, who are equally bound with the members of the judicial department to support the constitution.</p> <p>13. Qu*re : Where it appears upon the face of an act or resolution that the General Assembly has not attempted to pass upon the constitutionality of the legislation therein provided, and that it is the manifest purpose of the act or resolution that it shall not go into effect until the courts shall determine that it is not repugnant to the constitution, is there any presumption at all in favor of the constitutionality of such an act or resolution ?</p> <p>14. The argument ab inconvenienti should not, as a general rule, be resorted to in interpreting the provisions of a constitution; and especially should the argument from inconvenience not be at all considered when the lawmaking power under the constitution had ample authority, not only to prevent the inconvenience complained of, but also to remedy it after it had arisen, in a manner other tiran that contemplated in the act or resolution under consideration, even if it be regarded as of doubtful constitutionality.</p> <p>15. The expression “bonded debt” of a corporation, State, etc., in a strictly legal and technical sense, embraces both the principal and interest that may accrue upon a debt of that class.</p> <p>16. Such expression in its popular sense embraces only the principal of the debt.</p> <p>17. The term “bonded debt,” as used in paragraph 1, section 13, article 7 of the constitution (Civil Code, §5900), which provides that the proceeds of the sale of public property shall be applied to the payment of the bonded debt of the State, and shall not be used for any other purpose whatever, so long as the State has any existing bonded debt, was used in its popular and not in its strictly legal and technical sense.</p> <p>18. There is no mandatory requirement in the constitution that the interest on the public debt shall be raised by taxation, if there is revenue from any source which may be applied to the payment of such interest consistently with the constitution. The constitution, art. 7, sec. 14, par. 1 (Civil Code, § 5901), requires only that the General Assembly shall each year raise by taxation such an amount as may be required to pay the public expenses and interest on the public debt; and if there is any fund from which either the public expenses or the interest on the public debt may be constitutionally paid, the sum required to be raised by taxation would be only the difference between the amount of public expenses or interest on the public debt and the fund constitutionally available to discharge these items; and if there is a fund constitutionally available for this purpose which will pay such items in full, then no sum is required to be raised by taxation.</p> <p>19. When all of the provisions of the constitution in reference to the public debt are taken together, ,and especially when such provisions are taken in the light of the proceedings of and debates in the convention which framed the constitution, it is clearly derivable from the terms of that instrument that it was the purpose of its framers to provide a plan whereby the State would, at some time in the future, be entirely relieved of debt, and this plan was to be effectuated by raising such sum annually by taxation as was necessary to pay the interest of the public debt each year, and the principal was to be discharged by a sinking fund made up of installments of a given amount raised each year by taxation, and the proceeds of the sale of any public property that the General Assembly might authorize to be sold; and if the sinking fund and the proceeds of the sale of public property together were not sufficient to discharge the entire principal at the maturity of the debt, such additional amount as was necessary for this purpose was to be raised by taxation.</p> <p>20. The scheme provided in the constitution for the final redemption of the State from a condition of indebtedness was intended to be carried out in such a way that there would not be, in any given year or series of years, any burdensome tax levy to meet the principal of the public debt or any part thereof.</p> <p>21. Quaere : The constitution declaring that the proceeds of the sale of public</p> <p>property shall be applied to the payment of the bonded debt of the State, is not authority thus conferred upon the General Assembly to use the proceeds of the sale referred to, in the extinguishment of the bonded debt, by the purchase of any outstanding unmatured bonds of the State, either at par, below par, or at a premium, whenever the General Assembly may deem it wise to-so use this fund ? „</p> <p>22. The proceeds of the sale of public property referred to in the constitution, art. 7, sec. 13, par. 1 (Civil Code, § 5900), can not be constitutionally applied to the payment of the current interest on the bonded debt, when at the time-of such payment no part of the principal is discharged.</p> <p>23. The above proposition is true whether the paragraph of the constitution-above cited be considered alone, or in connection with other provisions in the constitution, or in tire light of public history and the proceedings of and debates in the convention that adopted the constitution.</p>

<p>Complaint for land. Before Judge Estes. Lumpkin superior court. April term, 1901.</p>

<p>Indictment for selling liquor. Before Judge Littlejohn. Webster superior court. October 26, 1901.</p>

<p>1. If while-a motion for a new trial was pending counsel for movant, in connection with the motion, tendered to the judge a document in the form of exceptions pendente lite, calling in question the legality of certain acts of the judge, with a request that he certify the same, and the judge refused to do so ; and if, after overruling the motion for a new trial, a "bill of exceptions was sued out, which was in all respects true, and which contained a recital of the tendering of the above-mentioned document, the contents thereof, and of the refusal of the judge to certify the same, and assigned error upon such refusal, it was the duty of the judge to certify such bill of exceptions without requiring counsel for the plaintiff in error to eliminate therefrom all reference to, and the action taken upon, such exceptions. Whether such exceptions ought properly to be treated as legal exceptions pendente lite, and, if so, whether they were or were not meritorious, are questions to be finally determined by the Supreme Court in passing upon the case in due course.</p> <p>2. Applying the principles above announced to the petition for mandamus, and the answer thereto filed by the trial judge, a mandamus absolute should.be granted, and it is so ordered.</p>

<p>Peremptorily forcing one indicted for a criminal offense to trial immediately after the appointment of counsel (who was not familiar with the case) to defend him, without giving to such counsel an opportunity to make an investigation of the case or prepare for the defense, is, although no other ground for a postponement or continuance of the case he urged, cause for a new trial. •</p>

<p>Indictment for murder. Before Judge Evans. Emanuel superior court. November 11, 1901.</p>

<p>Tn a trial for rape, competent evidence tending to show that before the commission of the alleged offeree the woman had been of unchaste character is relevant, not only as affecting her credibility as a witness, but as independently bearing upon the question whether or not she consented to the sexual intercourse.</p>

<p>Certiorari. Before Judge Seabrook. Liberty superior court. November 19, 1901.</p>

<p>Indictment for murder. Before Judge Harris. Troup superior court. December 10, 1901.</p>

<p>Accusation of cheating and swindling. Before Judge Taliaferro. City court of Sandersville. December 5, 1901.</p>

<p>Indictment for murder. Before Judge Candler. Coffee superior court. November 30, 1901.</p>

<p>Indictment for murder. Before Judge Roberts. Twiggs superior court. November 23, 1901.</p>

<p>Petition for certiorari. Before Judge Hart. Pu.tnam superior court. December 15, 1901.</p>

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

<p>Indictment for larceny. Before Judge Reagan. Pike superior court. December 17, 1901.</p>

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

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

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

<p>1. The incorporation into the Code of 1895 of the provisions of an act passed previously to that time cures any defect which may have existed in the original act by reason of its containing matter different from that expressed in its title, or attempting to amend a section of the code by mere reference to its number.</p> <p>2. In an accusation for escape, based upon the Penal Code, § 314, where the court under whose sentence the accused was confined at the time of the alleged escape was established in pursuance of a public act of the General Assembly, it was not necessary to allege where such court was located or that it had jurisdiction to try the accused for the offense of which he was convicted these facts appearing from the act itself, the material portions of which are to be read into the accusation.</p> <p>3. The allegation, in an accusation for escape, that the accused “ unlawfully ” escaped from a named chain-gang, dispenses with the necessity of the further allegation that the chain-gang in question was a lawful place of confinement.</p> <p>4. A clerical error in a certified copy of a court paper will not render the paper inadmissible in evidence, where it clearly appears from the context what the true purport of the document was.</p> <p>6. A certified copy is primary evidence of the contents of any book or paper which is required by law to be kept in the office of its custodian.</p> <p>6. A chain-gang controlled and managed by private persons, and over which the only act of authority exercised by the county authorities is the appointment of guards who are in the pay of such persons, is not a legal place of confinement, and one escaping therefrom can not be convicted under the Penal Code, § 314.</p>

<p>Accusation of escape. Before Judge Proffitt. City court of Elberton. November 22, 1901.</p>

<p>Indictment for carrying concealed weapon. Before Judge Eel-ton. Houston superior court. November 29,1901.</p>

<p>Indictment for larceny. Before Judge Henry. Floyd superior court. December 6, 1901.</p>

<p>Neither the act of October 2, 1879, fixing “the amount of license for selling or vending spirituous, intoxicating, or malt liquors,” in Coffee and other counties therein named (Acts 1878-9, p. 388), nor the amendment thereto of August 18, 1881, applicable to that county (Acts 1880-1, p. 594), nor the amendment of September 4, 1883, applicable to the county of Coffee (Acts 1882-3, p. 567), is unconstitutional as being special legislation in a case provided for by the general domestic-wine act of February 27, 1877 (Acts 1877, p. 33), under which domestic wines can be sold without license, in quantities riot less than one quart, by the manufacturers thereof; as the several local acts above referred, to apply only to such spirituous, intoxicating, or malt liquors as can not he lawfully sold without license.</p>

<p>Indictment for fornication. Before Judge Janes. Haralson superior court. December 19, 1901.</p>

<p>Indictment for simple larceny. ' Before Judge Nottingham. City court of Macon. December 31, 1901.</p>

<p>Indictment for murder. Before Judge Reagan. Stewart superior court. December 17, 1901.</p>

<p>1. A claim arising out of an illegal transaction is not a legitimate subject-matter for submission to arbitrators, and an award founded thereon is a mere nullity.</p> <p>2. The doctrine of comity of States can not be invoked in aid of such an award.</p> <p>3. The only legal remedy open to one who seeks to compel an agent to account for funds furnished him for an illegal purpose is an action in assumpsit to recover so much of the money as was not actually used by him in carrying such purpose into effect.</p> <p>4. In no case will the Supreme Court undertake to pass upon questions presented by a bill of exceptions when an adjudication of them, even though favorable to the plaintiff in error, could not possibly result in any practical benefit to him.</p>

<p>Action for damages. Before Judge Clark. City court of Forsyth. August 3, 1901.</p>

<p>Equitable petition. Before Judge Littlejohn. Muscogee superior court. July 19, 1901.</p>

<p>Bail-trover — -appeal. Before E. A. Hawkins, judge pro hae' vice. Sumter superior coúrt. July 9,1901.</p>

<p>Affidavit of illegality. Before Judge Littlejohn. Sumter supeT rior court. December 10, 1901.</p>

<p>Action for deceit. Before Judge Littlejohn. Sumter superior court. July 22, 1901.</p>

<p>A will contained the following item: “To my beloved daughter, Eliza M. D. Crumpler, I give and bequeath the use, benefit, and profit of fifty acres of my land [describing it]. ThisI give and bequeath to my daughter, Eliza M. D. Crumpler, so long as she shall desire to remain satisfied upon it, and she shall not have the right to sell or transfer the same to any other person; but when she becomes dissatisfied with same, then it shall revert back to the balance of the possession from which it was taken.” The devisee went into possession of the property after the probate of the will, and remained in possession for more than thirteen years without expressing any dissatisfaction. Held: (1) , That even if the restraints sought to be placed in the latter portion of the item of the will upon the devisee as the owner of the fee-simple estate which is created by the first sentence are not all void, it was incumbent upon the devisee to elect, within a reasonable time after she entered into possession, whether she desired to remain satisfied on the land, and thus become the absolute owner thereof. (2) That, after the lapse of the time above mentioned, she will be conclusively presumed to have elected to remain satisfied upon the property, and therefore become the fee-simple owner under the terms of the will. (3) That in any event the item of the will can not be so construed as to authorize the devisee, after entering upon the land and remaining satisfied thereon for more than thirteen years, to surrender possession to the executor and disclaim all interest in the property, for the purpose of defeating the levy of an execution founded upon a judgment against her.</p>

<p>Certiorari. Before Judge Spence. Worth superior court. March 5, 1901.</p>

<p>1. When one requests another to make an offer for the sale of an article, and the offer is made by telegraph, and the telegram as delivered to the addressee is materially different from the telegram delivered for transmission, the sender is bound by the terms of the proposal as contained in the telegram delivered to the addressee, and may recover from the telegraph company any damages which he has sustained in fulfilling a contract resulting from an acceptance of such proposal.</p> <p>2. The evidence authorized the judgment rendered by the judge of the city court; there was no error committed during the trial of the case which would have required a reversal of his judgment; and therefore the petition for certiorari was properly overruled.</p>

<p>1. Money which has been received by county officials for the hire of misdemeanor convicts must, under the statute, be applied - to the payment of the fees of public officers who rendered services in the cases of such convicts, and the witnesses’ fees. Only the balance which remains after such application can lawfully be paid into the county treasury or become a part of the county funds.</p> <p>2. It being the official duty of the persons in charge of the county business, to so apply these funds, a mandamus will lie to compel their compliance with the terms of the statute ; but a suit against the county at the instance of an officer interested is not a proper proceeding to cause such application to be made ; nor will such an action lie against a county merely for the failure or refusal of the county officials to perform a legal duty.</p> <p>8. A county is not liable to the officers of court who rendered services in the trial and conviction of persons charged with a misdemeanor, for the value of the labor of such convicts while worked and confined on a chain-gang established by the county in which such persons are convicted.</p> <p>4. The allegations made in the petition as amended set out no cause of action against the county, and the demurrer thereto should have been sustained.</p>

<p>Action for slander. Before Judge Bennet. Pierce superior court. February 9, 1901.</p>

<p>1. One who has failed to comply with a duty imposed upon him by law, of paying over to another a particular fund to the custody of which the latter is entitled, is liable to account to him, not only for such part of the fund as the former has retained in his hands, but also for any portion thereof of which he may have made an illegal disposition.</p> <p>2. When the right of a plaintiff to specific relief sought by him is unchallenged by demurrer or otherwise, and he establishes by uncontradicted evidence the facts upon which he bases his alleged right to such relief, his prayer therefor should be granted as matter of course.</p>

<p>Petition for alimony. Before Judge Janes. Polk superior court. November 9, 1901.</p>

<p>Complaint for laud. Before Judge Sheffield. Randolph superior court. May 22, 1901.</p>

<p>Distress warrant. Before Judge Butt. Macon superior court. January 8, 1901.</p>

<p>Levy and claim. Before Judge Littlejohn. Sumter superior court. February 7, 1901.</p>

<p>Levy and claim. Before Judge Littlejohn. Webster superior court. April 2, 1901.</p>

<p>Action for damages. Before Judge Littlejohn. Macon superior court. May 14,1901.</p>

<p>Trover. Before Judge Candler. Thomas superior court. March 13, 1901.</p>

<p>Levy and claim. Before Judge Littlejohn. Sumter superior court. June 1, 1901.</p>

<p>1. The proposition that agency can not be proved by evidence of the declarations or conduct of the alleged agent is no longer open to discussion.</p> <p>2. It is needless to constantly reiterate and publish rulings upon settled questions.</p> <p>3. If an agent whose authority is limited to purchasing with cash furnished him by his principal buys on credit, the latter is not liable for the price of things so bought; and one who deals with such a special agent is bound to inform himself as to the extent of the agent’s authority.</p> <p>4. Applying these rules to the facts of this case, the verdict was entirely unsupported.</p>

<p>Garnishment. Before Judge Littlejohn. Sumter superior court. June 21, 1901.</p>

<p>1. Where certain allegations in a petition are expressly admitted in the defendant’s answer, and the defendant is allowed, during the trial of the case, to file an amendment (to which is attached the affidavit prescribed by the act of 1897, Van Epps’ Code Supp. §6199) denying such allegations, it is error to refuse to allow the withdrawal from the pleadings of the defendant’s admissions, and to charge that defendant is conclusively bound by such admissions and es-topped to deny them. After the admissions have been withdrawn from the pleadings, they can still be offered in evidence against the defendant, though the defendant will have the right to explain and disprove them.</p> <p>2. In a suit against a railway company for personal injuries brought about by the collision of one of the defendant’s trains with a tree which had fallen across the track, where the defendant had introduced evidence tending to show that the tree had stood at a point outside of its right of way, that there had been a severe wind but a few minutes before the collision, that shortly prior thereto the track had been clear, and that the defendant’s agents had used all diligence but had not had time or opportunity to inspect the track before the arrival of the train, it was error to refuse a request, properly made, to charge that if the jury believed that these things were true, then no liability would attach to the defendant company for having failed to ascertain that the tree had been blown down, or for not having given the company’s servants in charge of the train warning that the tree had fallen across the track.</p> <p>3. Where error is assigned on the refusal to give a pertinent and legal charge requested in due time, this court will not presume, merely because no copy of the general charge is sent up in the record, that the request was covered by the charge given.</p> <p>4. In a case of this character, in which the plaintiff alleged several different acts of negligence on the part of the defendant, it was error to charge that if the jury found that the defendaixt was negligent in any of the particulars alleged by the plaintiff, the defendant would be liable provided thp jury found that the plaintiff sustained injury. Under this charge the jury could have found for the plaintiff although they were of opinion that the -negligence of which they believed the defendant guilty had not materially contributed to the injury of the plaintiff. In this respect, at least, the charge was erroneous.</p>

<p>Complaint. Before Judge Littlejohn. Dooly superior court. June 22, 1901.</p>

<p>Action for damages. Before Judge Bower. City court of Bainbridge. March 5, 1901.</p>

<p>1. That the brief of evidence in the record of a given case is for any reason so defective that it can not be considered by this court is not a sufficient reason for dismissing the writ of error. In such a case, if any of the assignments of error can be determined without reference to the evidence, the questionsthus raised will be considered and decided ; and if none of the assignments of error can be so determined, the judgment will be affirmed.</p> <p>2. The question as to whether an amendment to a motion for a new trial had been properly served upon the respondent prior to the time of the hearing can not be raised for the first time in this court.</p> <p>3. The legal sufficiency of a petition can not be brought in question by an objection to evidence introduced in support of the same.</p>

<p>Action for damages. Before Judge Estes. Brooks superior court. January 18, 1901.</p>

<p>Equitable petition. Before Judge Boberts. Montgomery superior court. April 24, 1901.</p>

<p>Where personal property has been duly advertised for sale by a mortgagee in accordance with the terms of a power of sale contained in his mortgage, and, subsequently to such advertisement but prior to the sale, an execution held by a third party against the mortgagor is levied upon the mortgaged property, and the same is seized in pursuance of such levy, and while so held is sold by the mortgagee under his power of sale : Held, that a sale of such property by the mortgagee under the power, while the same is in the custody of the sheriff by virtue of such levy, is void, and ineffectual to pass title to the purchaser.</p>

<p>Affidavit of illegality. Before Judge Roberts. Wilcox superior court. March 27, 1901.</p>

<p>Complaint. Before Judge Roberts. Irwin superior court. June 4, 1901.</p>

<p>1. Possession of land is notice to the world of whatever right the occupant has in the land.</p> <p>2. Where an owner of land made to another a bond for titles, and the obligee in the bond paid part of the purchase-money, gave his notes for the balance, and went into possession; and where the vendor subsequently, while the obligee was still in possession, transferred to a third person by indorsement and for value all of the purchase-money notes remaining unpaid, and thereafter executed and delivered to another person a deed to the land, the grantee in such deed was chargeable with notice of the equity of the obligee in the land, and acquired against him no greater right than the vendor had at the date of the deed; and as the vendor had at that date no right to collect the purchase-money notes, which had been lawfully transferred to another person, such grantee did not acquire the right to collect any of the unpaid purchase-money notes, as against the transferee of the same; and therefore payment by the obligee to the holder of such notes of the balance of the purchase-money gave to him a complete equity in the land, both as against the vendor and the grantee in the deed from him.</p>

<p>Equitable petition. Before Judge Henry. Eloyd superior court. April 9, 1901.</p>

<p>1. When a partnership is dissolved by the purchase by one partner of the interest of another, and the contract of dissolution provides that the purchasing partner shall'pay the debts of the firm, the outgoing partner is entitled to bring suit against the purchasing partner as soon as he fails to pay any of the matured debts of the firm.</p> <p>2. In a case of the character above referred to, the outgoing partner is not entitled to an injunction to restrain the purchasing partner from selling or incumbering his property, even though he may be about to move, or may be causing his property to be removed, beyond the limits of the State, or is fraudulently disposing of the same for the purpose of defeating the payment of the debts of the firm. The remedy in such a case is either by attachment or writ of ne exeat, according to the circumstances of the case.</p>

<p>Complaint. Before Judge Littlejobn. Sumter superior court. December 1, 1900.</p>

<p>Complaint. Before Judge Littlejohn. Sumter superior court. July 23, 1901.</p>

<p>An administrator with the will annexed, appointed in another State under ajudgment admitting the will to record as “ a valid will of personalty only,” and authorized hy the letters of administration issued to him to administer only “the goods, chattels, and credits” of the testator, has no authority to institute, in the courts of this State, either an action to recover land and mesne profits, or an action of trespass for the recovery of damages to real property.</p>

<p>Trover. Before Judge Spence. Decatur superior court. Nowember term, 1900.</p>

<p>1. An action against a railroad company as lessor or licensor of another company, for permitting such company to inflict injuries upon the plaintiff, can not be converted by amendment into an action against the same defendant as a common carrier of passengers, for inflicting the alleged injuries through its own servants and agents.</p> <p>2. Where the material allegations of a petition are not sustained by the evidence for the plaintiff, a judgment of nonsuit is proper.</p>

<p>Action for damages. Before Judge Spence. Dougherty superior court. April 4, 1901.</p>

<p>Action on contract. Before Judge Fite. Thomas superior court. July 1, 1901.</p>

<p>1. Portions of a demurrer which are “ speaking ” should be overruled.</p> <p>2. The rule that a drawee is presumed to know his drawer’s signature, and hence can not recover back money paid through a mistake of fact upon a bill to which the drawer’s signature was forged, is not available in favor of a holder who by his own negligence contributed to the success of the fraud practiced, and whose conduct had a tendency to mislead the drawee, who was himself free from fault.</p>

<p>When in each of several cases between the same parties there was a demurrer by the plaintiff to the answer of the defendant, and by agreement, but without consolidating the cases into one, the demurrers were “heard together,” the defendant could not properly sue out a single bill of exceptions assigning error solely upon the sustaining of such demurrers; and this is so although, after the demurrers were sustained, the cases were by a formal order consolidated into one and tried as such, and a verdict and judgment were therein rendered for the plaintiff.</p>

<p>1. Where the owner of money deposited it with another and directed him to deliver the same to a third person as a gift from such owner, he could, at any time before actual delivery to the intended donee and acceptance of the gift by him, recover the money from him with whom it had been so deposited for the purpose stated.</p> <p>2. Where such an owner placed a sum of money in the hands of another, with instructions to give designated amounts thereof, respectively, to a named son and daughter of the owner, and to invest “ a part ” of “ the balance of this money” in lands and have the titles thereto made to minor children of the person receiving the money : Held, that as to any portion of such balance not actually so invested there was no complete gift to the minors, accepted by their parent for them, and that the owner had the right to recover that uninvested portion.</p> <p>3. An express trust, in this State, must be created or declared in writing.</p> <p>4. Applying the rules above announced to that view of the evidence most favorable to the defendant,, the court committed no error in directing the verdict which the jury returned in favor of the plaintiff.</p> <p>5. Inasmuch as the verdict directed by the court was the only outcome of the case legally possible, any error in empaneling the jury was immaterial.</p>

<p>Petition for injunction. Before Judge Roberts. Wilcox superior court. June 4, 1901.</p>

<p>Complaint. Before Judge Seabrook. Dodge superior court. May 30, 1901.</p>

<p>1. A judgment rendered, in litigation between the same parties is not conclusive in a subsequent suit between them on a different cause of action, except as to issues actually made and determined in the former litigation. Accordingly, where two notes were given upon a consideration arising in one and the same transaction, a judgment rendered in favor of the payee against the maker, upon one of such notes, did not operate to estop the latter from setting up, in a subsequent action brought by the former against him on the other note, a defense which was not in issue when the judgment was rendered.</p> <p>2. There was ample evidence to authorize the charges complained of, and to warrant the verdict found; and there was no error in refusing to grant a new trial.</p>

<p>Equitable petition. Before Judge Roberts. Telfair superior court. August 27, 1901.</p>

<p>Equitable petition. ' Before Judge Bennet. Ware superior court. February 8, 1901.</p>

<p>Motion to amend judgment. Before Judge Bennet. Glynn superior court. February 18, 1901.</p>

Foreclosure of laborer’s lien. Before Judge Bennet. Glynn superior court. February 2, 1901. cited, on the proposition that the plaintiff below was not entitled to a laborer’s lien: 63 Ga. 172; 68 Ga. 659; 73 Ga. 234; 98 Ga. 249 ; 99 Ga. 250; 108 Ga. 411; Id. 794; 110 Ga. 326.

<p>Action for damages. Before Judge Bennet. Ware superior court. February 13, 1901.</p>

<p>Under the ruling made in the case of Gainesville Railroad Company v. Edmond-son, 101 Ga. 747, which was followed in the case of Southern Railway Company v. Myers, 108 Ga. 165, the evidence in the present case was not sufficient to authorize a verdict for the plaintiff, and a new trial should have been granted.</p>

<p>1. When a copy of a lost deed is established by a judgment of the superior court, a certified copy of the proceedings with reference thereto, taken from the minutes and records of the superior court, is original evidence and is admissible as such, in any controversy where the original deed would be admissible ; and if such established copy of the lost deed has been placed upon record, the same is admissible in evidence without proof of the execution of the lost deed.</p> <p>2. Although a deed purports to be for a valuable consideration, it may be shown to be in reality voluntary only.</p> <p>3. An innocent and bona fide purchaser from one who took under a deed purporting to be for value but which was really voluntary, and who went into possession immediately upon the execution of such voluntary deed and remained thereon continuously for more than twenty years, acquired a title superior to the rights of those claiming under a purchaser for value who took subsequently to the execution of the voluntary conveyance.</p> <p>4. The rulings of which complaint was made with reference to the admission of evidence were free from error; and the court did not err in directing a verdict for the defendant, for any reason assigned in the motion for a new trial.</p>

<p>1. Generally ratification relates back to the act ratified, but not so as to affect the intervening rights of third persons.</p> <p>2. If a party has a complete defense to an action at the time suit is brought, he can not be deprived thereof by a third party ratifying a deed which at the commencement of the suit was without binding force for want of such ratification.</p>

<p>Action for damages. Before Judge Bennet. Ware superior court. April 16, 1901.</p>

<p>1. Under the charter of the City of Baxley as amended by the act approved December 22, 1896 (Acts 1896, p. 127), it is the duty of the treasurer of the city to receive all money paid to the city council and pay the same out upon vouchers signed by the mayor and approved by the council. If, therefore, the city council receives and disburses money which should have gone through the hands of the treasurer and upon which he was entitled to receive a commission, but which was, by the unlawful action of the council, withheld from him, he may sue to recover the commission thereon as if he had handled the money himself.</p> <p>2. The evidence for the plaintiff in the court below was sufficient to warrant the ' court to direct a verdict in his favor for the amount for which the verdict was directed.</p>

<p>Action on bond. Before Judge Bennet. Ware superior court. July 30, 1901.</p>

<p>Action for damages. Before Judge Williams. City court of Waycross. June 13, 1901.</p>

<p>Action on bond. Before Judge Bishop. City court of Brunswick. July 24, 1901.</p>

<p>Scire facias to forfeit recognizance. Before Judge Dart. City court of Douglas. July 17, 1901.</p>

<p>1. Active and bona fide efforts on the part of a plaintiff in fi. fa. to enforce his execution by any appropriate legal proceedings are, if duly taken, sufficient to prevent the dormancy of the judgment on which it issued; and in order to have this effect it is not necessary that any entry relating to such efforts, other than those otherwise required or authorized to be made on the execution, shall be entered either on the execution itself or the execution docket of the court in which the judgment was rendered.</p> <p>2. Even if the defect in the levy in the present case was not amendable, it was cured by the recital in the claim affidavit. The previous levy on personal property of one of the defendants was properly accounted for by the evidence.</p> <p>3. The” court erred in dismissing the levy.</p>

<p>Petition for injunction. Before Judge Pite. Bartow superior court. December 5, 1901.</p>

<p>Equitable petition. Before Judge Roberts. Wilcox superior court. June 14, 1901.</p>

<p>Equitable petition. Before Judge Roberts. Wilcox superior court. June 14, 1901.</p>

<p>A sheriff’s sale of property to the plaintiff in the execution under which the sale was had should, upon the subsequent setting aside of the judgment on which such execution was issued, be itself annulled and declared void upon a proper petition filed by the defendant in execution, unless he consented to or acquiesced in the sale; and this is so though he, on suing out a bill of exceptions to have that judgment reviewed by the Supreme Court, failed to obtain a supersedeas, and the sale took place while the case was pending in that court.</p>

<p>Equitable petition. Before Judge Roberts. Wilcox superior court. August 10, 1901.</p>

<p>Action for damages. Before Judge Roberts. Telfair superior court. August 27, 1901.</p>

<p>Action for damages. Before Judge Bennefc. Wayne superior court. July 30, 1901.</p>

<p>Action for damages. Before Judge Bennet. Clinch superior court. August 5,1901.</p>

<p>1. It is a general rule of law in force in this State that, in the absence of a contract giving him the right so to do, the tenant can not lawfully remove fixtures annexed to the freehold, which he has placed on leased land. The exception to this rule exists only in the case of trade fixtures.</p> <p>(a) Section 3120 of the Civil Code is construed to refer to trade fixtures.</p> <p>(b) The fixtures sought to be removed in the present case were not trade fixtures.</p> <p>2. Domestic or ornamental fixtures which a tenant has attached to a dwelling-house or the grounds on which the same is located, to promote his domestic</p> <p>- comfort, and which may be easily severed and made equally useful to him in another house, may be removed by him during his term. Aliter as to such as are substantial additions to the house, or which if taken away would be injurious to the freehold.</p> <p>3. A servant’s room, metallic gutters attached to -the roof of a house, water-pipes laid under the ground by a tenant on leased premises, become, when constructed and attached, a part of the freehold, and can not be lawfully dissevered from the land by the tenant against the will of the landlord, even though at the time of their erection the tenant intended to remove them at the expiration of his term.</p> <p>4. The charge of the trial judge to which exceptions were taken, as well as the verdict which was rendered, not being in accord with the principles of law announced above, a new trial should have been granted.</p>

<p>Where pending a suit by a wife for divorce she applied for temporary alimony, alleging cruelty of the husband as the cause of separation, which he in his answer denied and therein charged that the separation was caused solely by adultery on her part, uncondoned by him; and where upon the hearing his Snswer, in these respects, was fully sustained by uncontradicted affidavits of other witnesses, the wife making no denial thereof and submitting no proof to sustain her allegation as to the cause of separation, it was, under such circumstances, an abuse of sound judicial discretion for the judge to allow her alimony.</p>

<p>The municipal authorities of Brunswick have power to lease as public property the water terminations of the streets of that city.</p>

<p>1. While one of two persons sued jointly may by appropriate pleadings in his own behalf adopt an answer filed by the other for himself alone, they have no right to unite in tendering an amendment to such answer. Even were it otherwise, rejecting such an amendment affords no just cause of complaint to either defendant, when allowing it would benefit neither.</p> <p>2. The defendant in an action for land and mesne profits, brought under the “pleading act of 1893,” may defend as against the plaintiff’s demand for rent without admitting that he was in possession of the premises in dispute at the commencement of the action. Eule 25 of the superior courts was to this extent modified by that act, the provisions of which are now embraced in the Civil Code.</p> <p>3. An answer to such an action, denying that the defendant “is in possession of the property as described” in the plaintiff’s petition, and “that there is any such property,” though not technically a disclaimer by the defendant, does not, so far as the action relates to the recovery of the realty, meet the requirements of the above-mentioned rule ; nor can such an answer be made good by an amendment containing substantially similar averments, although it also alleges that the defendant is in possession of certain land the description of which, as set forth in such amendment, does not affirmatively show that it is the land described, or intended to be described, in the plaintiff’s petition.</p> <p>4. The truth of an allegation made in such a petition as to the value of the premises for rent is not admitted by a failure to answer; and the demand for rent, being in the nature of a claim for unliquidated damages, must be proved.</p>

<p>3. A charge that “ The bank, if it did pay interest to its depositors, could agree with its depositors at what time it would pay interest and in what amounts it would pay interest,” was correct.</p> <p>(a) Being in possession after default, the grantee was entitled to remain for the purpose of subjecting the land to the payment of the debt in the manner pointed out in the deed. ^</p> <p>(&) Under evidence of this character, a charge to the effect that whether the bank (the grantee) held possession by virtue of a settlement of the debt or not, if it was in possession, and had a deed to the land, it had a right to set up that deed as against the plaintiff, was not cause for reversal of a judgment for the defendant.</p>

<p>Indictment for misdemeanor. Before Judge Bennet. Camden superior court. October 26, 1901.</p>

<p>1, A court created by a special act of the General Assembly, which is located by the terms of the act at a county-site which has been expressly declared to be a city by an act incorporating the same, which has jurisdiction to try criminal cases below the grade of felony, and civil jurisdiction over a portion or all of those classes of cases jurisdiction over which is not by the constitution exclusively vested in some other court, with territorial jurisdiction in both civil and criminal cases, either throughout the limits of the county, or jurisdiction in one class of cases limited to the city, and in the other class coextensive with the limits of the county, with a jury of twelve to try all cases, both civil and</p> <p>• criminal, if a trial by jury is demanded, is “ a city court,” within the meaning of that term as used in the constitution of this State.</p> <p>(а) A court of the character above described has, by the terms of the constitution, the power to grant new trials, and jurisdiction is also conferred by that instrument upon the Supreme Court to correct the errors of such court by writ of error, whether the power to grant new trials or the jurisdiction of the Supreme Court to review by writ of error is conferred by the act creating the court or not.</p> <p>(б) If the act creating the court provides that a jury of less than twelve shall try any case, the court is not “ a city court,” within the meaning of that term as used in the constitution.</p> <p>(c) If the act creating the court locates the same at any other place than a county-site, or at a county-site which has not been expressly incorporated as a city, the court thus created is not “a city court,” within the meaning of that term as used in the constitution.</p> <p>(id) If the court has the requisites above referred to, it is immaterial what may be the other details prescribed in the act in reference to the manner of appointment of judge and other officers, practice, procedure, etc.</p> <p>(e) Whether a court having jurisdiction, territorial or otherwise, less than as above indicated is a “city court,” within the meaning of that term as used in the constitution is not now decided.</p> <p>2. While the city court of Atlanta and the city court of Savannah are courts of purely statutory creation, they are named expressly in the constitution as courts from which a writ of error will lie to this court; and the General Assembly has authority to make any change it deems fit in reference to the jurisdiction, practice, procedure, etc., of either of such courts in order to adapt the same to the existing conditions and needs of the city in which it is located, and no change in reference to such court will have the effect to take away the jurisdiction of this court to correct the errors of such court by writ of error.</p> <p>8. The criminal court of Atlanta, established by the act of September 6, 1891, is a new and independent court, and not a part of the city court of Atlanta.</p> <p>4. The General Assembly has no authority to establish two or more city courts in either the city of Atlanta or the city of Savannah.</p> <p>5. The act of September 6, 1891, which is entitled “ an act to establish the criminal court of Atlanta and in pursuance thereof to amend an act establishing city court of Atlanta, passed December 15,1871, and acts amendatory thereof, and for other, purposes,” does not, so far as the act provides for the withdrawal of criminal jurisdiction.of the city court of Atlanta, that the judge of the city court of Atlanta may preside in the criminal court of Atlanta, that the judge of the criminal court may preside in the city court and when so presiding therein the city court may sit in two divisions for the disposition of the business of that court, with two panels of jurors, one for each division, contain matter different from what is expressed in the title thereof.</p> <p>6. Nor is the act above referred to subject to the objection that it refers to more than one subject-matter.</p> <p>,7. Nor is that portion of the act which withdraws criminal jurisdiction from the city court subject to the objection that it is an amendment or repeal of any part of the act creating the city court of Atlanta by a mere reference to its title.</p> <p>8. The General Assembly may provide that a city court may sit in two divisions, and it may also provide that the judge of another court may preside as judge of one of the divisions of the city court; and cases tried before either division of the city court are tried in the city court, and errors committed in the trial of such cases may be reviewed by this court on writ of error signed by the judge presiding jn the particular case, whether such judge is a judge of the city court or not, provided there is express statutory authority allowing such other judge to preside in the city court. .</p> <p>9. It follows from the foregoing that this court has no jurisdiction to review by writ of error the judgments of the criminal court of Atlanta, and the writ of error from that court will be dismissed. It likewise follows that this court has jurisdiction to review by writ of error the judgments of the city courts of Atlanta and Savannah, whether the judgments of the former court be rendered by the judge of that court or by the judge of the criminal court of Atlanta presiding in the second division of the city court, as well as other city courts coming within the description set out in the first headnote; and therefore jurisdiction is taken by this court in the different cases referred to in the opinion and which are now pending on writs of error.</p>

<p>Though, a valuable article in proximity to and under the protection of its owner is constructively upon his person, suddenly snatching it up and carrying it away with intent to steal it is not robbery when there is no intimidation of the owner for the purpose of getting possession and no resistance by him to the act of taking. This is none the less true when the article thus taken is a weapon, or capable of being used as such, and the wrong-doer, after taking it, therewith intimidates the owner in order to effect an escape.</p>

<p>Simmons, C. J. The evidence being insufficient to establish beyond a reasonable doubt that the accused was the person who committed the crime which was shown to have been perpetrated, the verdict of guilty can not be lawfully upheld. It is as much incumbent upon the State to identify the accused as the perpetrator of the offense, with the requisite degree of certainty, as to prove the corpus delicti..</p> <p> Judgment reversed. All the Justices concurring, except Little', J., absent, and </p> <p>Lewis, J., dissenting. The evidence, in my opinion, was sufficient to identify the accused as the perpetrator of the crime.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. January 9, 1902.</p>

<p>Paragraph 15 of section 2 of the general tax act of 1898 did not impose a tax upon manufacturers of the liquors therein mentioned who did not sell the same within the limits of this State.</p>

<p>Accusation of selling liquor. Before Judge Covington. City-court of Moultrie. January 9, 1902.</p>

<p>Habeas corpus. Before Judge Lumpkin. Fulton superior court. January 22, 1902.</p>

<p>1. While the judge is not required to charge upon a theory of defense resting solely on the statement of the accused, in the absence of an appropriate written request to that effect, still when the judge of his own motion undertakes to so charge, the instruction given must be correct law and applicable to the theory of the defense set up in the statement.</p> <p>2. When the statement of the accused in a trial for murder required a finding against him of the higher grade of involuntary manslaughter, a charge that the accused relied on the defense of misfortune or accident was erroneous ; and unless the charge as a whole had the effect of an instruction to acquit the accused if the jury believed the statement, such an error required the granting of a new trial when the accused was convicted of murder.</p> <p>3. The charge of the judge in the present case did not have the effect of an instruction of the character referred to in the preceding note, and therefore the error in the charge requires a reversal of the judgment refusing a new trial.</p>

<p>Writ of error from the criminal court of Atlanta.</p>

<p>Conviction of manslaughter. Mandamus nisi. Before Judge Hart. Laurens superior court. December 29, 1901.</p>

<p>Indictment for larceny of cotton. Before Judge Brinson. Richmond superior court. December 27, 1901.</p>

<p>Indictment for burglary. Before Judge Estes. Hall superior court. January 4, 1902.</p> <p>cited, as to the instruction on recent possession of stolen property : 95 Ga. 223(4); 96 Ga. 355; 105 Ga. 649; 106 Ga. 371; 109 Ga. 165.</p> <p>cited: 1 Greenleaf, Ev. §34; 57 Ga. 505; 71 Ga. 864; 76 Ga. 17; 87 Ga. 551; 91 Ga. 284; 92 Ga. 33; 105 Ga. 651; 106 Ga. 372; 110 Ga. 774.</p>

<p>Indictment for receiving stolen goods. Before Judge Estes. Hall superior court. January 4, 1902.</p>

<p>Indictment for murder. Before Judge Felton. Houston superior court. January 9, 1902.</p>

<p>Certiorari. Before Judge Candler. Newton superior court. January 1, 1902.</p>

<p>1. The verdict in this case was not without sufficient evidence to support it.</p> <p>2. It is not, in order to render dying declarations admissible in evidence upon a trial for murder, essential for the State to show that the declarant affirmatively said he was in a dying condition or used language of like import. If he was in fact in articulo mortis and the circumstances were such as to indicate that he must have known that this was so, it is proper to allow the declarations to be proved and instruct the jury to determine for themselves whether or not the statements made by the deceased were “ conscious utterances in the apprehension and immediate prospect of death.”</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. October 21, 1901.</p>

<p>Indictment for selling liquor. Before Judge Felton. Bibb superior court. January 23, 1902.</p>

<p>Indictment for perjury. Before Judge Candler. Rabun superior court. December 16, 1901.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. January 22,1902.</p>

<p>Indictment for murder. Before Judge Felton. Houston superior court. January 24, 1902.</p>

<p>Indictment for assault with intent to rape. Before Judge Sea-brook. Effingham superior court. December 21, 1901.</p>

<p>Indictment for assault with intent to rape. Before Judge Sea-brook. . Effingham superior court. January 16, 1902.</p>

Motion to set aside judgment. Levy and claim. Before Judge Littlejohn. Schley superior court. April term, 1901. A motion to set aside a judgment rendered in the superior court of Schley county in 1895, and to reinstate the case, was filed in that court in 1901, by Mamie Walker and others.

<p>Petition for injunction. Before Judge Janes. Douglas superior court. November 25, 1901.</p>

<p>1. Under “ an act entitled an act to amend, revise, and consolidate the several acts granting corporate authority to the City of Americus ; to confer additional powers upon the Mayor and City Council of Americus; to extend the corporate limits of said city, and for other purposes,” it was competent for the General Assembly to provide for a hoard of police commissioners which should have the exclusive control of the police officers of the city ; and a provision in the act to this effect, and also naming the first members of the board, prescribing the manner in which their successors should be chosen, and setting forth their duties and powers, was not subject to the objection that it contained matter different from what was expressed in the title of the act. .</p> <p>2. There is nothing in the constitution of this State which guarantees to the people living within the limits of a municipal corporation the absolute right of local self-government. How far people so situated may be allowed to participate in the choice of officers who are to administer the affairs of the local government is a matter exclusively within the judgment and discretion of theGeneral Assembly.</p> <p>S. The General Assembly may take from a municipal corporation its charter power respecting the police and their appointment, and may by statute provide for a permanent police for the corporation, under the control of a board of police not elected by the people of the municipality nor appointed or elected by the corporate authorities, but consisting of commissioners appointed in such other manner as the General Assembly may direct.</p> <p>4. The power to appoint public officers is not purely an executive function, but this power may be exercised by the General Assembly, when not otherwise provided in the constitution, either by naming a given person for the office, or providing the manner in which the officer shall be chosen; and the General Assembly also has authority to provide for the appointment of a number of officers to discharge a given duty, and provide that vacancies in such number may be filled by those remaining in office, thus creating a self-perpetuating body.</p> <p>6. If the Mayor and Council of the City of Americus have, under the present charter, any authority whatever to appoint a police force, such authority can not be exercised unless the board of police commissioners fails or refuses to provide the city with an efficient police force.</p> <p>6. A court of equity will, at the instance of citizens and taxpayers of a municipal corporation, enjoin the authorities in charge of the affairs of such corporation from carrying into effect an ultra vires ordinance providing for the election of certain public officers, for the reason that if such officers are elected they will have an apparent demand against the municipality for compensation, which will have to be resisted at the expense of the taxpayers or illegally paid out of the funds of the corporation.</p> <p>7. The foregoing disposes of all of the questions raised by the demurrer, the answer, or otherwise, which require any discussion. There was no sufficient cause shown for not granting the injunction prayed for, and the judge properly granted the same.</p>

<p>1. The provisions of the Political Code, '§908, which require that when property which has not been returned for taxation is sold, there shall be an offer to rent or hire the property before the same is offered for sale, do not apply to sales of wild lands.</p> <p>2. Quaere : Since the adoption of the Code of 1895, does not the duty of issuing executions against wild lands which have not been returned for taxation devolve upon the “ receiver of tax returns,” instead of the “ tax-collector ” ?</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court.. January 29, 1901.</p>

<p>1. A horse the value of which does not exceed forty dollars may, though not worked upon a farm hut used in running a dray for the support of the owner and his family, he exempted from levy and sale under the Civil Code, § 2866. The word “ farm ” in the phrase “one farm horse or mule,” therein appearing, has reference to quality and value, and was not inserted in the law with a view to prescribing the kind of work in which the exempted animal was to he employed.</p> <p>2. A half interest in a two-horse wagon can not, under that section, he lawfully exempted as a “ one-horse wagon.”</p> <p>3. A set of harness does not fall within the descriptive words “ common tools of trade,” as used in that section.</p>

<p>Though it may not, under all circumstances, be an act of negligence to alight from a moving train, yet where a passenger, when the train upon which he was riding was moving away from the station of his destination, “ went out on the platform and got on the steps of the car, . . moved down the steps, put one foot off, and swung himself in a position to get off, ’ ’ but was not ‘1 able, in the position in which he was then placed, to step on the ground,” and, while in this position, discovered a telegraph post near the track, “ and perceiving that if he undertook to recover himself and get back on the train he would strike saidpost, and perhaps fall under the train, turned loose and was thrown to the ground,” and in consequence received physical injuries, he was not entitled to hold the railway company liable therefor.</p> <p>There was no error in sustaining a demurrer to the plaintiff’s petition.</p>

Equitable petition. Before Judge Candler. Eulton superior-court. May 28, 1901. The claim is not barred by tbe statute of limitations, and is not a stale demand. 110 Ga. 497.. The claim for profits on three pieces of real estate is distinctly set. out in the petition, and the petitioner has the legal right to claim the profits on them. 73 Ga. 275 ; 85 Ga. 323; 107 Ga. 656.

<p>Action for damages. Before Judge Reid. City court of Atlanta. May 29, 1901.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. March 22, 1901.</p> <p>Ordinarily a real estate broker earns-his commission when he finds a customer ready, able, and willing-to buy on the terms stipulated. Civil Code, § 3015; 71 Ga. 608;. 73 Ga. 295; 80 Ga. 566, 568; 88 Ga. 321; 92 Ga. 508; 96.Ga. 518; 100 Ga. 563; 68 Pa. St. 42; 21 Barb. 145. If the agent-here had any further duty to perform, it was waived when the defendant agreed to go with him and the customer to look at the property, and then took the customer himself and closed the sale. 73 Ga. 295; 1 Am. R. 49; 66 Pa. St. 42; 21 Barb. 145; 36 Conn. 136; 53 Ark. 41. The fact that the property was notin the defendant’s name does not change his liability. When he accepted the purchaser and took the matter out of the hands of the plaintiff,, he became liable for the commission. Mechem, Ag. §§958, 957; 48 Ga. 96; 71 Ga. 255; 94Am. Dec. 324; 68 Pa. St. 42 ; 4 Am'. &. Eng. Ene. L. 979. Liable even when he acts without authority: Mechem, Ag. § 959; Civil Code, §§ 3024, 3025, 3029,3041. Especially is this true when plaintiff’s services were retained and accepted in helping to bring the parties together after defendant took the customer to see the property. Plaintiff was not told that he would not be paid, until after the trade was closed and his services received. Code, §3019; 14 Ga. 124; 24 Ga. 607; 52 Ga. 41 — 45. Silence amounts to ratification. 52 Ga. 41; 53 Ga. 315,318, 148; 39 Ga. 590. Relates back to time of ratification. 10 Ga. 362. Ratification is a question for the jury. 58 Ga. 564. The-terms of sale were waived when plaintiff asked defendant for the-price and terms, and defendant said they would take the customer-out and locate him and sell him at one price if another did not suit. If not, usage would govern. _ Mechem, Ag. §§963-966. It was-certainly waived when defendant took charge of the customer. Authorities cited supra. Property may be placed in the hands of art agent by implication, and no particular form of words is necessary for that purpose. 4 Am. & Eng. Ene. L. 270; Mechem, Ag. § 966; 69 Iowa, 509, 51; 140 Mass. 339; 68 Pa. St. 42. Principal can not step in and take purchaser and thereby defeat agent’s commission. Mechem, Ag. § 967; 83 N Y. 376; 140 Mass. 339; 73 Ga. 295. If agent introduces purchaser or discloses his name to principal, and through the introduction or disclosure negotiations are begun and a sale made by principal, the agent is entitled to his commission. 51 N. Y. 124; 53 Ark. 49; 4 Am. & Eng. Ene. L. 977, A broker is entitled to pay for services rendered, even on quantum meruit. 22 Neb. 174; 87 Oal. 251; 21 Ga. 157; 8 Ga. 190; 108 Ga. 242; Civil Code, § 4936. Defendant employed plaintiff, who procured the purchaser and introduced him to defendant; and plaintiff looked only to defendant for compensation, and was not directed to look to any one else, and no one else was known to plaintiff in the transaction. Civil Code, §§ 3041, 3039, 3025; 71 Ga, 254; 92 Ga. 508. When a sale is effected through efforts of the broker or through information derived from him, so that he may be said to have been the procuring cause of it, the law leans to that construction which will secure the payment of his commissions, rather than the contrary. 32 Wis. 244, 350 ; 46 Mo. 555 ; 36 Conn, 136; 52 Mo. 249.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. January 9, 1901.</p>

<p>Complaint — appeal. Before Judge Lumpkin. Fulton superior court. April 18, 1901.</p>

<p>Motion to reinstate motion for new trial. Before Judge Lump-kin. Fulton superior court. June 29, 1901.</p>

<p>1. The evidence, though conflicting, warranted the verdict; and the same having heen approved by the trial judge, it must, in the absence of any material error of law, be allowed to stand.</p> <p>2. While the instructions complained of were in some respects open to criticism, they were not calculated to mislead the jury to the prejudice of the defendant company. On the contrary, there is no sufficient, reason to doubt that they fully understood the controlling issue upon which the case should be made to turn, and resolved it favorably to the plaintiff on questions arising purely upon the credibility of witnesses.</p>

Indictment for stealing baled cotton. Before Judge Felton. Bibb superior court. January 9, 1902. cited, as to variance between allegation and proof: 112 Ga. 18; 64 Ga. 449; 61 Ind. 447; 30 Me. (17 Shep.) 29; 50 Tenn. (3 Heist) 452. On the proposition that the court erred in the charge as to what would render the accused guilty as principals: Clark’s Crim. Law, 89, 90 ; Penal Code, §§ 47, 49; 4 Ga. 465.

<p>Writ of error from the criminal court of Atlanta.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. April 6, 1901.</p>

<p>A landlord is not liable for injury received by a person from falling on ice which had been allowed by the tenants to accumulate and remain on a sidewalk abutting the rented premises. This is true though the ice resulted from water which had flowed from the landlord’s property through a ditch placed there for the purpose of carrying off the refuse water across the sidewalk ; the ice not being on the sidewalk when the tenants entered into possession, although the ditch was on the property at that time andput there for the purpose above indicated.</p>

<p>Motion to arrest judgment. Before Judge Reid. City court of Atlanta. May 4, 1901.</p>

Motion to set aside judgment. Before Judge Lumpkin. Fulton superior court. March 16,1901. cited, as to the right to join a motion for a new trial with a motion to set aside the verdict and judgment: 14 Enc. PI. & Pr. 119; 67 111. App. 288.

Action on insurance policy. Before Judge Reid. City court of Atlanta. May 4, 1901. Time of performance may be waived: 62 Ga. 247; 74 Ga. 51. Waiver of conditions: 98 Ga. 262, 266; Id. 533, and citations; 41 Ga. 130. Compromise agreement with beneficiary enforceable though insured still living: 163 N. Y. 374, s. c. 50 Lawy. Rep. Annot. 204. The member being twenty-one years of age when the certificate was issued, his life expectancy had not expired when the suit was brought.

<p>1. It is, in the trial of an action brought against one of its members by a corporation whose name and the allegations of whose petition indicate that it is a building and loan association “pure and simple,” proper to regard it as an organization of this kind, when nothing to the contrary appears.</p> <p>2. The issuing and sale by such an association of “fully-paid stock” to the holders of which fixed dividends payable semi-annually are guaranteed, they haying no further interest in profits, is a “mere borrowing of money by the association,” and the same does not contravene the principle of mutuality pertaining to the proper transaction of the business of the association upon the building and loan plan.</p> <p>S. The verdict in such an action may lawfully embrace “fines” for which the defendant was under his contract liable, though the same accrued after he had ceased to make payments in accordance with the terms of that contract.</p> <p>4. A corporation purporting to be a building and loan association proper should not be regarded as one not of this character merely because, under its bylaws, one who applies for membership solely for the purpose of obtaining a loan is, upon the rejection of his application therefor, entitled to have returned to him all fees and charges which he had paid in advance.</p> <p>5. A trustee with unrestricted power to sell or mortgage the property of the trust estate may in his representative capacity become a member of a building and loan association, and after so doing may, in order to obtain an advance to himself as trustee for the benefit of the estate, execute promissory notes, security deeds, or other contracts necessary to effectuate the desired purpose, and the trust estate will be bound thereby.</p>

<p>Complaint. Before Judge Calhoun. City court of Atlanta. June 29,1901.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. June 11, 1901.</p>

<p>Motion to set aside judgment. Before Judge Reid. City court of Atlanta. May 4, 1901.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. July 1, 1901.</p>

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. July 5, 1901.</p> <p>The nature of the case is stated in the opinion of the court. The motion for a new trial contained the following, beside the general grounds:</p> <p>The court erred in the following charge to the jury: “ When you were empaneled you took an oath to well and truly try each cause submitted to you during the present service, and a true verdict to make according to the law as given you in charge and the opinion you entertain of the evidence produced to you, to the best of your skill and knowledge, without favor or affection to either party. You are here to try this case under the law and the evidence produced before you. You should look at the evidence, and, applying the law to it, seek to reach a verdict which shall speak the truth of the ease, and shall be in accordance with, the law and evidence, influenced by no favor or affection for either party. . . The law as given you in charge from the bench by the court you are bound to receive as being a correct exposition of the law. The jury are not the judges of the law in a civil case in any such sense as to authorize them to set up any opinion on their part as to what the law is, in conflict with or as overriding the law as given them from the bench. You receive the law as charged you from the bench as being correct law. The facts on any contested issues of fact you determine from the evidence. The court charges you the law which he deems apposite and appropriate to give you in charge; but he does not express or intimate to you, and does not intend throughout this charge to express or intimate to you, any opinion as to what are the facts on any question of contested facts or on any issue of fact. The facts you must determine from the evidence; the law you will receive from the court.” The movant contends that this part of the charge was calculated to intimidate and embarrass the jury, and not to leave them free to consider the case in the light of the evidence and law.</p> <p>The court erred iu the following charge: “ If you believe from the evidence that the pad was in fact so left in her body, then you " would determine whether or not it was so left by reason of the want of due care and skill — of the exercise of due care and skill on the part of the defendant. What duty as to diligence rests upon the surgeon, in connection with cases under his charge ? Ifhe answer is this : A person professing to practice surgery must bring to tbe exercise of his profession a reasonable degree of care and skill. Any injury resulting from the want of such care and skill will be a tort for which a recovery may be had.” Under this charge the jury was compelled to find for the defendant unless they found under the evidence that the defendant was lacking in both care and skill. Plaintiff’s counsel did say in argument that he did not attack the general professional skill of the defendant, or his diagnosis of the case, but contended that defendant was liable on account of his failure to perform his duty as a surgeon on this occasion. The charge was inapplicable to the issue on trial.</p> <p>The court charged: “ The defendant as a surgeon owed the plaintiff the duty of exercising reasonable care and skill in performing the operation described in the testimony, including all parts of the operation which he was performing, and which fell within its performance. The measure of skill and care which the law required him to have and use was that possessed and used by average surgeons in the general neighborhood in performing similar operations. The jury would not be authorized to substitute for this measure any arbitrary standard of skill or care. Look at the evidence, giving due consideration to all the facts and circumstances disclosed by it, and determine from it whether or not the defendant exercised due care and skill in the performance of the operation which is involved in this controversy, including in the term ‘the performance of the operation’ the use and handling of the sponges or pads. On this part of the case the question is, did or did he not use such reasonable care and skill ? The court can not tell you what reasonable care and skill would require under any particular set of circumstances. He can only give you in charge the meaning of reasonable care and skill as the law defines it, and the test which the law give's for determining reasonable care and skill; but the jury must look at the facts and circumstances and determine from them whether or not the defendant did use such reasonable care and skill.” Error is specified, for the reason stated in the preceding ground, and because the removal of the pad or sponge from the body of a patient is not a part of the operation and does not require’ any surgical skill, and because the issue was not one of skill on the part of the defendant in the performance of the operation, but negligence in not removing the pad or sponge after the operation.</p> <p>The court erred in the following charge: “ In determining the question of reasonable care and skill, you may consider the place of the operation, the circumstances surrounding it, the situation of the defendant with respect to the operation, and all the facts and circumstances which throw light upon the question; the ultimate question as to this branch of the case being, did he or did he not use reasonable care and skill in the performance of the operation?” Error, because these considerations had nothing to do with whether or not the defendant was negligent in leaving the sponge or pad in the body. It was the duty of the defendant to remove the sponges or pads before closing the incision,and he could not shift that duty or the responsibility for failing to remove them.</p> <p>The court erred in refusing to charge as follows: “ Any custom or Tule of practice of medicine or surgery, at the Grady Hospital or in this general community, must be reasonable, and must be in accordance with a reasonable degree of skill, diligence, caution, and care in treating and operating upon patients. It is for the jury to determine the reasonableness of such custom or rule of practice.”</p> <p>In overruling the motion the judge said, in part: “The plaintiff was a charity patient, on whom an operation was performed at the Grady Hospital, a hospital conducted by the City of Atlanta. The city controlled the place, furnished all the preparations, room, operating nurse, etc. Dr. Noble simply went in and performed operations there free of charge. The plaintiff alleged that an operation had been performed without the exercise of due care and skill, resulting in injury to her, and sued both Dr. Noble and the city. Later she dismissed the case as to the city, and proceeded against Dr. Noble alone. Ordinarily ‘a person professing to practice surgery or the administering of medicine for a compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill will be a tort for which a recovery may be had.’ Code, § 3831. This is the measure prescribed in this State, where a surgeon performs operations for pay. Certainly it can not be more stringent where he goes to a charity hospital and operates without charge. But inasmuch as human life may be at stake, I am of the opinion that, whether he charges or not, he himself is bound to have and exercise a reasonable degree of care and skill. Where he undertakes to operate for pay, it would doubtless be incumbent on him to provide suitable instruments, assistants, help (whether called nurse or not), and generally to exercise reasonable skill and care in the whole matter. How far he wmuld be responsible for negligence of an assistant furnished by him need not be decided now. Clearly he would not be responsible for any negligence of assistants in which he took no part, or for accessories, etc., where neither assistants nor accessories were furnished by him but by a free hospital, and where this was known to the patient. In such a case he would be responsible for any failure to exercise a reasonable degree of care and skill himself. Movant’s counsel in this motion for new trial seems to think that the charge placed upon them the burden of showing a failure to exercise reasonable care and also a failure to exercise reasonable skill. But the charge will show that this is a mistake. On -the contrary, the burden was placed on the surgeon to exercise a reasonable degree of both care and skill, not on plaintiff to show a failure in both respects. . . Further, in the course of the trial, plaintiff’s counsel produced as authority and read from Thomas on Negligence, page 1107. On that page will be found the following: ‘Degree of skill and care required. — In the absence of a special contract otherwise providing, a physician and surgeon, whether acting gratuitously or otherwise (post, page 1109), is required to possess and use reasonable care and skill, and the same is measured by the degree of skill possessed, and skill and care exercised by the average of his profession in the locality of his residence, regard being had to the advanced state of the profession at the time (pp. 1108 —1114). It'has been held that it is a material issue, whether a surgeon is sldllf ul in his profession, as well as whether he applied his skill in the particular case. Carpenter v. Blake, 50 N.T. 696; 60 Barb. 488 (p. 1108); Mayo v. Wright, 63 Mich. 32 (p. 1113). But mere possession of skill is not sufficient, unless due care be taken to exercise it in the case in hand (pp. 1111, 1112). Skill, how tested. —The sldllfulness of a physician should be tested by the recognized rules and doctrines of his own and not those of other schools (post,pp. 1114, 1115). It has been held, however, that clairvoyant physicians are adjudged by the skill required of a physician of good standing in the community (p. 1115). Where a physician departs from the settled course of practice, it may be a question for a jury whether this would not constitute negligence.’ ” . .</p> <p>“Movant’s counsel now seek to draw some sort of distinction between the operation by the surgeon and his handling of the sponges- or cloths placed inside the patient’s body while the actual cutting proceeds, to catch the flow of blood or pus. They claim that the handling of these sponges or gauze strips was no part of the operation at all; that the rule of care and skill required of the surgeon in operating had no application to the case; and that the charge was-error. Frankly, I fail to perceive the force of this point. Dr. Noble undertook to do something as a surgeon. The doing of that-something involved, the putting of pads or sponges inside the body of the patient, as well as the actual cutting open and sewing up. After the cutting and cleansing was over and the time to close the wound had arrived, the sponges were to be removed. If he did not undertake to find and remove them as a surgeon, in what capacity was he acting ? Reasonable or ordinary care is not an absolute' term, and has no arbitrary meaning. If the care and skill-required of him in doing this thing was not measured by the reasonable care and skill of a surgeon, what was the measure of it ? Was it that-of an upholsterer stuffing or removing the stuffing of furniture ? or that of a railroad employee operating a train ? or that of a master toward his servant ? Or what was it ? It may seem at first blush (as perhaps it has impressed counsel) that if the surgeon put the-sponges inside of a patient’s body, care would require him to take them all out. But when we remember that abdominal surgery, as-now practiced, is largely a matter of a few years’ growth, that until quite a recent period it was considered that an incision or wound which penetrated the abdominal cavity was certainly fatal, and that-now such operations are very frequently performed; that the surgeon must make a small incision, not over a few inches in length,, must insert and properly place a number of small sponges or gauze pads, sometimes as many as a dozen (as the evidence discloses),, must, partly by sight and partly by feeling, reach the seat of the trouble and cut away the necessary parts, must tie up the loose ends, remove the sponges, and close and sew up the opening, arranging for proper drainage, and all this with the utmost promptness,, for sometimes a slight delay may mean death, circumstances and surroundings must be considered in measuring duty. Some of the witnesses in this case testified that, with the surgeon’s mind and attention riveted on the delicate and dangerous work before him, it was very difficult, if not impossible, to keep in his memory the exact number and placing of these sponges, that he must needs rely somewhat for the count upon another, that he exercised such care and skill as he could in. finding and removing the sponges, "and then had the operating nurse to aid him by keeping count of them; and one or more said that if the surgeon should stop at the critical moment to count sponges before closing the wound, the patient might die. This system may be imperfect. What system is not ? But certainly it would never do to turn juries loose to fix some arbitrary standard — each jury for itself — of how abdominal surgery ought to be performed, regardless of how the surgeons themselves had found it safest and best to do; nor, which would amount to the same thing, to say whether a method of performing an operation, even if universally adopted by the most skillful (surgeons, seems reasonable to the jurors’ minds or not. This is especially true where the practice of surgery is permitted only to those who have studied the recognized methods, hav§ had certain training, and have been found to be sufficiently proficient, and have been licensed. If the practice of surgery were thrown open to everybody to act on his general judgment, without skill or training, perhaps the rule might be different. The average juror might, in such a supposed state of affairs (if it can be supposed) be able to judge of the mode of performing operations as well as the practitioner of whom no training, skill, or knowledge was required. If all surgeons had perfect reason and perfect skill, there should be no failures. Medical and surgical science must advance gradually. It has its errors and its failings. But it would hardly do for every doctor who gives a prescription, or every surgeon who performs an operation, to do so at the risk that if the result is not good, a jury may mulct him in damages, if they should think the method of treatment or of conduct was unreasonable, although it was the well-recognized and universal method.</p> <p>“ Plaintiff’s attorneys evidently thought, when they brought the suit, that the use of the sponges or pads was a part of the operation. Their declaration, is based on that idea. They no doubt then had before them the section of code above referred to, which does not say that the surgeon shall bring to a certain operation or part of an operation a reasonable degree of care and skill, but that he shall bring this to ‘tjie exercise of his profession.’ If Dr. Noble was not exercising his profession in the handling and using, putting in and placing, and taking out of these pads, as well as in the cutting and sewing up, it would be a subject of some interest to know what he was doing. Even if the law had limited the rule to the ‘operation,’ does not that term include more than merely making an incision and closing it? Are not the handling of instruments, placing the patient, use of bandages or pads, removal of necessary parts, replacing them in position, placing ligatures, cleansing the wound, closing it, etc., all parts of the operation ? Suppose the surgeon had left a piece of the thread used in sewing up the wound in it, would it be said, that was no part of the operation; it was simply leaving a string ? ”</p> <p>cited Civil Code, § 3831; Century Diet, definition of “skill”; 75 N. Y. 12; 39 Mo. App. 233; 78 Eed. 442; 67 Minn. 46, s. c. 69 N. W. 480; 84 Me. 497'; 4 Fost. & F. 977; 101 Iowa, 629, s. c. 37 L. E. A. 830, and notes; 166 Mass. 585; 90 Mo. 487; 60 Barb. 488; 6 Kan. 46; 36 Neb. 794; 100 Pa. St. 127; 4 N. Y. St. E. 876; 47 N. Y. St. E. 483, s. c. 17 N Y.' Supp. 131; 45 N Y. St. E. 165, s. c. 17 N Y. Supp. 815 ; 136 N. Y. 1; 71 Ga. 424 (14); 87 Ga. 378 (2); 25 App. Div. (N Y.) 522; 111 Ga. 206.</p> <p>cited Civil Code, § 3831; 114 Ga. 639; 30 Ga. 245 ; Thomas, Neg. 1107 et seq.; 95 Ind. 379; 23 111. 385; 17 Ohio St. 253; 75 Minn. 255, s. c. 77 N W. 813 ; 3 Oregon, 139.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. June 20, 1901.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. July 2,1901. •</p>

<p>Complaint. Before Judge Calhoun. City Court of Atlanta. June 22, 1901.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. June 13, 1901.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta.. June 22, 1901.</p>

<p>1. Where a party examines a witness introduced by him, though upon a single-point, the opposite party has a right to cross-examine such witness upon the-whole merits of the matter in controversy.</p> <p>2. There was no error in refusing to rule out testimony.</p> <p>3. It is error, which requires the grant of a new trial, for the judge, during the-progress of a trial, to express or to intimate his opinion as to what has been, proved; and this is true though it be done in a colloquy between the judge and counsel as to the admission Or rejection of evidence, when it appears that, the judge goes beyond the limits of legitimate discussion and unnecessarily deals with the actual questions of fact involved in the case.</p> <p>4. A charge not adjusted to the evidence and which is calculated to mislead th& jury is erroneous.</p> <p>5. It was erroneous to instruct the jury that ‘ ‘ The city is allowed to show, where a piece of property is damaged in value by reason of a cut-down or a fill-up, or any other change in the fixing of the street, — to show that the improvement of the street is a set-off to any damage done to the particular property; and . . if you believe that although this property was hurt by reason of the cutdown, if you believe the improvements made there on the street were sufficient to set off any damage done by reason of the cut-down, then you would not find anything for the plaintiff, but would find for the defendant. ” Such charge was susceptible of the construction that the city could set off against the plaintiff’s claim for damages the enhanced values of property on other parts of the street, whether plaintiff’s property was enhanced in value or not.</p>

<p>A trial of an issue tendered in the name of a deceased plaintiff in execution to a claimant, and by the latter met with the usual rejoinder, is a mere nullity and settles nothing.</p> <p>•Under the facts disclosed by the record in the present case no issue was tendered to the claimant by any living person, and the court erred in not sustaining the motion to reinstate.</p>

<p>Motion to set aside judgment. Before Judge Calhoun. City court of Atlanta. June 1, 1901.</p>

<p>Complaint. Before Judge Calhoun. City court of Atlanta. February 6,1901.</p>

<p>Exceptions to auditor’s report. Before Judge Lumpkin. Eulton superior court. June 28, 1901.</p> <p>Fully-paid stock a debt, and entitled to be paid in preference to instalment stockholders: Cook v. Equitable B. & L. Asso., 104 Ga. 814, 829; Savannah Beal Estate, Loan & Building Co. v. Silverberg, 108 Ga. 281, 289. In re Guardian etc. Soc., 23 Ch. Div. 464; People ex rel. Fairchild, 140 N. Y. 549, s. c. 24 L. R. A. 57; MunhaU v. Boedecker, 44 111. App. 131; Dickinson v. Continental Trust Co., 52 N. Y. Supp. 672, s. c. 23 Misc. Rep. 489; Commonwealth v. Anchor B. & L. Asso., 10 Pa. Dist. Rep. 167; Heptasoph Asso. v. Linhart, 4 Pa. Dist. Rep. 620; Thompson, B. & L. Asso. (2d ed.) § 128. Association can borrow money from third person to pay withdrawals, or maturing stock: North Hudson Asso. v. Bank, 79 Wis. 31, s. c. 47 N. W. Rep. 303. A stockholder may become a creditor: Totten v. Tison, 54 Ga. 139. Inherent nature of building and loan association constitutes holder of matured or fully paid stock a creditor : Cook v. B. & L. Asso., 104 Ga. 814(1); Van Pelt v. B. & L. Asso., 87 Ga. 370; Thompson, B. & L. Asso. (2d ed.) § 132, pp. 254, 255, 258; Thornton & Blackledge, B. & L. Asso. § 330; Éndlich, B. & L. Asso. §§117, 490, and citations; Eversman v. Schmitt, 53 Ohio St. 184, s. c. 41N. E. 139 ; Mechanic’s etc. Asso. Appeal, 7 Atl. 728 ; Charles Tyrell Asso. v. Haley, 163 Pa. St. 301, s. c. 30 Atl. 154; North Hudson Asso. v. Bank, 79 Wis. 31, s. c. 47 N. W. 300. Contract to be so construed as to uphold, rather than destroy it: Civil Code, §3675, par. 3; Best,Ev. (1st Am. ed.) §§ 346, 347. Intention of parties to be sought: Civil Code, § 3673. Criminal to declare dividend unless legitimate proceeds of investment : Penal Code, § 691. Performance of condition rendered impossible by act of the law is excused: Macon Co. v. Gibson, 85 Ga. 1, 17, and citations. Insolvency and receivership do not destroy existence of corporation, nor its rights and duties: Hollifield v. Wrightsville B. Co., 99 Ga. 365, 370. The Cook case has been followed, with reference to the question of the effect of “ paid up ” or investment “stock” upon the character of the association, in White v. B. & L. Asso., 106 Ga. 150, 151; Burns v. B. & L. Asso., 108 Ga. 181, 183; Angier v, B. & L. Asso., 109 Ga. 625, 628. It is cited in Savannah etc. Co. v. Silverierg, 108 Ga. 281, 289; Union Savings Bank v. Bottenheim, 107 Ga;. 606, 624; So. Home B. & L. Asso. v. Face, 110 Ga. 614; Smith v. B. & L. Asso. Ill Ga. 811.</p> <p>The stock in question is not even preferred. There is no authority in the charter or in any by-law for such a preference. The contract as contended for by plaintiff in error, even if made, is void. If it can be considered preferred stock, the preference is only that dividends shall be paid when there are profits to pay them with; not in the event of insolvency: 1 Cook, Stock (3d ed.), § 271; Sumrall v. Columbia Co. (Ky.), 50 N. W. 69, s. c. 44 L. R. A. 659 ; Towle v. B. & L. Asso., 75 Red. 398; Latimer®. Equitable Loan Co., 81 Eed. 776; State v. Equitable Loan Co., 142 Mo. 325, s. c. 41 S. W. 916; For-wood v. Eubanks (Ky.), 50 S. W. 255; Leahy v. Nat. B. &L. Asso., 100 Wis. 555, s. c. 76 N. W. 625; Gibson ®. Safety Asso., 170 El. 44, s. c. 48 N. E. 580; Endlich, B. & L. Asso. §464; 7 Thomp. Corp. §8761; Heinbokel ®. National L. & B. Asso., 58 Minn. 340, s. c. 25 L. R. A. 215. Preferred stockholder not considered a creditor: Totten v. Tison, 54 Ga. 139. Doctrine that stockholder seeking to withdraw must show that there are funds with which to pay him is recognized in Crittenden v. B. & L. Asso., Ill Ga. 266. The Silverlerg case, 108 Ga. 281, and the Cook case, 104 Ga. 814, are distinguishable from this case.</p>

<p>Injunction. Before Judge Reagan. Fayette superior court. December 31, 1901.</p>

<p>1. One who claims title to land by virtue of a year’s support alleged to have been set apart to Mm and others out of the land must show that there has been a full compliance with all the requirements of law in regard to the setting apart of the year’s support.</p> <p>2. In such a case, where from the undisputed evidence it appeared that there were two sets of children of the deceased, living at the time the year’s support was alleged to have been set apart, and that the return of the appraisers did not specify what portion of the land should be set apart to the children of the deceased wife, but instead set apart a year’s support generally, the children of the deceased wife, whatever may be the rights of the children of the surviving wife, can claim no benefit under the year’s support proceedings. Little, J., dissenting.</p>

<p>Motion for new trial. Before Judge Gober. Pickens superior court. May 29, 1901.</p>

<p>Exceptions to auditor’s report. Before Judge Brinson. Greene superior court. March 14, 1901.</p>

<p>Complaint for land. Before Judge Evans. Jefferson superior court. November 13, 1900.</p>