Volume 115 — Georgia Reports

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. June 11, 1901.</p>

<p>1. The Supreme Court has no jurisdiction to pass upon an assignment of error complaining of the overruling of a demurrer to the answer of a sheriff to a rule for money, when there has been in the trial court no final judgment upon the rule.</p> <p>2. It has jurisdiction to pass upon an assignment of error complaining of a refusal to sustain a motion to make such a rule absolute; for the granting of such a motion would finally dispose of the case.</p> <p>S. The sufficiency of an answer can not properly be brought in question by a motion to enter a judgment in favor of the plaintiff, based on the ground that the answer sets forth no defense.</p> <p>•4. No judgment will be reversed by the Supreme Court when, in order to do so, it must rule adversely to the defendant in error upon a question which has already been settled in his favor in the court below by a decision which has never been set aside and which is not itself properly here for review.</p>

<p>Where A, owning the stock of a railroad company, sells it and the railroad to B, and for himself and his assigns covenants with B that he will erect a sawmill to saw np the timber on certain of his lands adjacent to the line of the railroad and will ship the lumber over the railroad at a certain rate of freight at which B agrees the company will transport it; and afterwards A sells the timber on the land to C, who, for himself and his assigns, covenants to erect the mill and furnish the lumber to the railroad company for transportation at the agreed rate of freight charges, and thereafter the timber is sold to D with like covenants between C and D, held:</p> <p>1. There is no mutuality between the railroad company and the covenantors.</p> <p>2. There is no privity of contract between the railroad company and the covenantors.</p> <p>3. The covenants in the different conveyances being personal between each vendor and tbe purchaser from him and relating to matters collateral to the realty conveyed, and there being no privity of estate between the railroad company and the covenantors, the covenants are not such as run with the land or with the timber rights so as to impose their burden upon the purchaser of the timber.</p> <p>á. It follows that the railroad company has no right in equity to enjoin the last purchaser from diverting the lumber from it and shipping it over another railroad.</p>

<p>1. The allegations in a complaint for land, that the plaintiff is seized thereof in fee, that the title of plaintiff arose from his having paid the purchase-money although the deed was made to the predecessor in title of defendant, that defendant claims under a deed from the widow of this predecessor, to whom the land was set apart as a year’s support, that the husband of the widow died in possession as plaintiff’s tenant, and that defendant had full knowledge and notice of plaintiff’s equity when he purchased from the widow, are not sufficient to withstand a special demurrer based on the ground that the petition does not show to whom such purchase-money was paid, and is in certain other respects too general and indefinite.</p> <p>2. The doctrine that the plaintiff may recover in ejectment in this State upon an equitable title, where such title amounts to a perfect equity, applies only where such equity arises out of a transaction between vendor and vendee and after full payment of the purchase-money. Where, therefore, in answer to a special demurrer to a petition in which the plaintiff relies solely upon an equitable title, an amendment is offered which shows that the transaction was not between the vendor of the land and the plaintiff, but between the vendee and the plaintiff, there is no error in disallowing the amendment.</p>

<p>Complaint for land. Before Judge Lumpkin. Fulton superior court. June 28, 1901.</p>

<p>Levy and claim. Before Judge Candler. Fulton superior court. January 8, 1901.</p> <p>In 1894 Swift and Harris executed to Mrs. May a deed to certain land as security for a debt, and received from ber a bond for reconveyance of title. On January 4, 1899, Harris executed a deed to his interest in the land to Swift, subject to the deed to Mrs. May, and assigned to Swift his interest in the bond. On January 6, 1899, the Gate City Coffin Company obtained a general judgment against Harris, ,and on January 20, 1899, caused an execution, based on this judgment, to be levied on an undivided half interest in the land, as the property of Harris. On January 30, 1899, Swift executed a deed to the land to Orme and Black, subject to the deed to Mrs. May, and assigned to them the bond for title from her. Orme afterwards conveyed his interest to Black, and Black filed a claim to the property. The Gate City Coffin Company filed a petition in aid of the levy, attacking the transfers to Swift, Orme, and Black; but, in view of the judgment rendered by the Supreme Court, the allegations of this petition need not be set out. The claimant excepted to the overruling of his motion to dismiss the levy.</p>

<p>Appeal. Before Judge Lumpkin. Fulton superior court. June 29,1901.</p>

<p>Motion for a new trial. Before Judge Fite. Whitfield superior court. December 23, 1901.</p>

<p>1. An act which declares that the government of the City of Sandersville shall consist of a mayor and five aldermen, who are constituted a body corporate under the name and style of “ the Mayor and Council of the City of Sanders-ville,” and then proceeds to define the powers of the City of Sandersville, referring in every instance to that corporation as the “ City of Sandersville ” or the “corporation of Sandersville,” and contains a clause expressly repealing all laws relating to the town of Sandersville, constitutes the corporation of Sandersville a city.</p> <p>2. legislation having the effect to change the town of Sandersville into the City of Sandersville is constitutional under an act entitled an act “ to alter and amend the several acts incorporating the town of Sandersville, and to confer upon said town of Sandersville a municipal government, with all the rights and privileges usually enjoyed by citizens of Georgia, as herein set forth.”</p> <p>3. When at a trial under an indictment for stabbing it appeared from the evidence for the State that the accused was guilty of the offense charged, and from the statement of the accused that he was guilty of assault and battery only, it was not erroneous to charge the jury that if they believed the accused was not guilty of the offense of stabbing they might convict him of the offense of assault and battery.</p>

<p>1. Although upon hearing a demurrer the court “ decided to sustain the same and dismiss plaintiff’s petition, and dictated his decision to the court stenographer,” and then discharged the jury that had been empaneled to try the case and “ took up another case,” yet if, “before the court stenographer completed transcribing the judgment of the court and before the court signed the same, ” an amendment to the petition was offered by the plaintiff, such amendment should not have been disallowed upon the ground that it was offered too late.</p> <p>2. A bequest of one thousand dollars to a named person, “ to be divided equally between ” his children by his first wife, nine in all, the person so named to take “ one child’s part, and ehcli child to draw one hundred dollars, with interest, as it comes of age, from the date of ” the testator’s death, is as to one tenth of the legacy a direct bequest to the person so named, and as to the other nine tenths a bequest to him in trust for the children; and the acceptance of the trust charges him with the duty of making and paying over to the children interest on their respective portions as they become entitled to re- ' ceive the same.</p> <p>3. Where such a legatee, upon the death of the testator, became administrator with the will annexed upon his estate, the beneficiaries of the portion of the legacy to which the trust attached can not, after the decease of such administrator, maintain an action against his estate and the sureties upon his administration bond, based on the theory that a separate legacy of one hundred dollars was bequeathed to each of them, which it was the duty of the administrator with the will annexed to retain possession of until the legatee entitled thereto became of age, and then to pay the same, with interest thereon from the date of the testator’s death, to such legatee.</p> <p>4. Where one appointed trustee, with notice of the trust, voluntarily undertakes to discharge duties devolving upon the trustee, and interferes with the trust fund in such a manner and to such an extent as that his interference therewith can not be plainly referred to some other ground of action, he will be conclusively presumed to have accepted the trust.</p> <p>5. Where a petition alleges that one, to whom a legacy such as that described in the second headnote was bequeathed, became, upon the death of the testator, the administrator with the will annexed upon his estate, and subsequently paid to himself the portion of the legacy bequeathed to him in his own right, and thereafter, “from time to time, made payments out of said legacy” to the cestuis que trust interested in the remaining portion thereof, and “partially admixlistered sai$l legacy,” it shows that the sum constituting the legacy has been severed by him from the other assets of the estate and has passed from him as administrator to him as legatee and trustee, and that his liability therefor as administrator has terminated.</p>

<p>Exceptions to auditor’s report. Before Judge Roberts. Wilcox superior court. May 23, 1901.</p>

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

<p>1. The competency of a witness must be decided by the court.</p> <p>2. There is no presumption that a witness is incompetent; and a witness offered may be permitted to testify, unless there is an objection or exception distinctly raising the question of his competency.</p> <p>3. If a witness is altogether incompetent to testify, objection must be taken before the witness is examined at all. If he is competent as to some matters and incompetent as to others, the objection may be taken at the time he offers to testify as to the matters concerning which he is incompetent.</p> <p>4. If the determination of the question as to whether a witness is competent to testify depends upon the decision of disputed facts, the proper practice is for the judge, after a preliminary examination, to decide the questions of fact thus arising; but he may in his discretion take the opinion of the jury thereon.</p> <p>5. When objection is made to a witness, his incompetency may be proved by the witness himself, or by other testimony; and if proved by other testimony, the witness is incompetent to explain it away.</p> <p>6. If a witness has been declared to be competent by the court, and during the progress of the trial evidence should be introduced which would make his competency doubtful, the jury should be instructed to determine this question of fact, and, if they should find that the witness is incompetent, not to consider his testimony on the points concerning which he was not competent to testify.</p> <p>7. When in a suit on a promissory note instituted in the name of a partnership against the maker, to which the defendant interposed a plea of non est factum, it was admitted at the trial that one of the members of the partnership was dead, and the defendant was offered as a witness in his own behalf to testify that he did not execute the note sued on, and it appeared from other testimony than that of the defendant himself that a transaction culminating in the execution of the note sued on was conducted by the defendant solely with the deceased partner, the defendant was not a competent witness to prove that he did not execute the note, or to contradict the testimony of the other witness that a transaction resulting in the execution of the note sued on was conducted with the deceased partner.</p>

<p>Action for damages. Before Judge Evans. Bulloch superior court. June 17,1901.</p>

<p>1. Where an amendment to pleadings has been, in term, duly allowed, it is not, after the term has expired, within the power of the court to revoke the order of allowance and strike the amendment on the ground that it was in the first instance erroneously allowed.</p> <p>2. The sufficiency of a petition can not properly be tested by a motion to nonsuit ; and the more especially is this so after a demurrer to the petition has been made and overruled.</p>

<p>1. It is not erroneous to deny an application by a plaintiff to make another person a party to a pending case, when no sufficient reason therefor is set forth ; and the more especially is this so when the application, besides being bad in substance, is attacked by a good special demurrer which is not met by appropriate amendment.</p> <p>2. The mere deposit of a bare muniment of title to land as security for a loan does not put title thereto in the lender, or create a lien in his favor on such land.</p> <p>3. Under the facts of the present case, the lien actually held by the plaintiff in error upon the land sold by the sheriff was inferior to that of the contesting judgment creditor whose execution was placed in the sheriff’s hands to claim the proceeds of the sale.</p> <p>4. Though the holder of an execution, under which property is about to be sold, be, before the sale, informed by the levying officer that there is no other execution in his hands to claim the proceeds of the sale, yet if, after the property is sold to such holder, an execution founded upon a judgment of superior dignity to that upon which his execution was issued be placed in the officer’s hands prior to a settlement between him and the purchaser, or a timely offer by the latter to comply with his bid, he can not be relieved therefrom merely because, by reason of the information received before the sale, he bid off the property solely for the purpose of having the proceeds of the sale, less expenses and costs, credited upon his execution, and would not, in the absence of such information, have become the purchaser at all. The decision in the case of Glenn v. Black, 31 Ga. 393, bearing upon a similar question, will not be extended beyond its own peculiar facts.</p>

<p>The plaintiff having failed at the trial to support the material allegations of the petition and the amendments thereto, it was not error to grant a nonsuit.</p>

<p>Equitable petition. Before Judge Evans. Johnson superior court. June 5, 1901.-</p>

Complaint. Before Judge Eve. City court of Richmond county. May 9, 1901. The petition of the Charleston and Western Carolina Railway Company alleged: “ (1) That the defendants, Frank G. Mangrem and T. T. Warr, partners doing business as the Augusta Stockyard Company, of said county, are engaged in the live-stock commission business, and in the feeding and care of live stock.

<p>1. Under a deed which describes a lot as bounded on one side by an alley and conveys to the grantee the right of “ ingress and egress from and to ” a given street, no right to erect a permanent structure in or over such alley passes to the grantee, notwithstanding the presence of such structure may not interfere with the use of the alley as a mere passageway.</p> <p>2. Where one who owned a parcel of land and also an alley which separated the land into two city lots conveyed to a person one of such lots, describing it as extending up to the alley, but giving to the grantee certain rights therein, and then conveyed to another person the other lot, which was described in the deed as being bounded on one side by that line of the alley which was adjacent to the lot first conveyed, the grantee in the second deed acquired under this description the fee in the alley, subject to the rights therein which had been conveyed in the first deed.</p> <p>3. A deed conveying a described parcel of land, “with the appurtenances,” conveys to the grantee as appurtenant to the land the right to the free and unobstructed use and enjoyment of an alley adjoining the property, which the grantor had laid out and set apart for such use, and the fee to which was .at the time of the conveyance in the grantor.</p> <p>4. One who is the owner of a building situated upon a lot adjoining an alley, in which such owner has the right of free and unobstructed use for all purposes incident to the ownership of an abutting lot, is entitled to an injunction to restrain the erection of a structure in that alley which will cause damage to the abutting property, upon proof showing to the satisfaction of the judge that the damage resulting from the erection of the structure would be irreparable. In the present case there was not only evidence authorizing the judge to find that the damages complained would be irreparable, but it appears that, upon the request of the parties, the judge himself viewed the premises, and, after so doing and considering the evidence, reached the conclusion that the damages would be irreparable.</p> <p>6. One against whom an injunction has been granted is bound to obey the same as soon as he is informed of the fact that the injunction has been granted, although he may not have been then served with a copy of the writ.</p> <p>6. When one who has notice that an injunction has been granted against him, though he has not been formally served with the writ, does an act which is a violation of the injunction, and thus changes the status of the property involved in the case, the judge may at an interlocutory hearing, or upon an application for an attachment for contempt, require the offender to restore the status as it existed at the time he first received notice that the injunction had been granted.</p> <p>7. When in an application to restrain a trespass, upon the ground that the damages threatened would be irreparable, tire defendant sets up title to the property adverse to that of the plaintiff, or questions the title of the plaintiff, a court of equity will by injunction restrain the trespass and preserve the status until the question of title can be settled at the final hearing; but where the defendant denies the title of the plaintiff, the trespass will be closely inquired into before the court will interfere by injunction.</p> <p>8. The foregoing notes deal with all of the questions raised in the present case which require special notice. The conclusions of the judge on all the issues of law decided by him were correct. His findings on all questions of fact submitted to him were amply supported; and the judgment rendered, requiring the defendant to restore the property to the condition in which it was at the time the petition was filed, and enjoining him from altering the status as thus restored until the final hearing, will not be interfered with.</p>

<p>1. Where this court has reversed the judgment of a trial court for not sustaining a demurrer to a petition, it ,is not too late, before the remittitur embracing the judgment of this court is acted upon by the court below, for the plaintiff to so amend his petition as to make it set forth a valid cause of action.</p> <p>2. A petition by a servant against his master for injuries resulting from defective machinery, which alleges that the plaintiff did not know the fact that defects existed in the machinery, and could not have discovered the same by the exercise of ordinary care and diligence, but that the defendant did know this fact or could have known it by the exercise of such care and diligence, in effect states that the servant “had not equal means of knowing such fact."</p>

<p>1. Where a person, duly served, fails to answer a suit against him and a judgment of default has been properly rendered against him, it is an abuse of discretion for the trial judge at the next term to open the default on the ground that the defendant, having ascertained that the action was for negligence in caring for certain real estate in which he had no interest, thought that the plaintiff on finding this out would not demand damages from the defendant.</p> <p>2. “ A pauper affidavit filed for the purpose of relieving the plaintiff in error and his counsel from the payment of the costs accruing in this court must be entitled in the cause referred to in the bill of exceptions, or otherwise show upon its face that it is connected therewith.”</p>

<p>1. Whether a petition is based upon an equitable or a legal cause of .action depends upon the character of the relief sought, as shown by the prayers, which indicate whether the alleged cause of action is intended by the pleader as founded upon legal or equitable principles; and upon general demurrer it will be determined whether the averments of the petition are such as to authorize the relief called for by the prayers.</p> <p>2. When a petition contains some averments which are appropriate to a legal cause of action and the prayers of the same call for equitable relief only, the court upon general demurrer will decide whether the petition as a whole authorizes the equitable relief prayed for; and if it does not, the demurrer will be sustained, notwithstanding there may be averments in the petition which as against a general demurrer might constitute a legal cause of action.</p> <p>3. A judgment sustaining a general demurrer to a petition of the character indicated in the preceding note would not conclude the parties thereto on any matter except that the petition did not authorize the equitable relief prayed for.</p> <p>4. The plaintiff in an equitable petition in the nature of a bill of interpleader must allege that he is in possession and control of the property concerning which the interpleader is sought; and when upon the face of the petition it is shown that he is neither in possession nor control of such property, the petition is fatally defective and should be dismissed on general demurrer.</p> <p>5. Applying the principles above laid down to the present case, the petition, considered in the light of the prayers, can not be construed to be an action for the recovery of real property. Properly construed, it was a petition in the nature of a bill of interpleader, and as such was fatally defective, for the reason that it appeared therefrom that the plaintiff was-not in possession of the property concerning which the interpleader was sought; and the court rightly sustained a general demurrer to the petition.</p>

<p>Certiorari. Before Judge Brinson. Richmond superior court. May 17, 1901.</p>

<p>Petition for mandamus. Before Judge Brinson. Richmond superior court. November 30, 1901.</p>

<p>Motion for new trial. Before Judge Brinson. Richmond superior court. August 30, 1901.</p>

<p>A certificate, not verified by oath but merely signed by one who, though an officer, was not authorized to serve legal process, does not, even where it recites as a fact the service of a written notice conforming to that required by the Civil Code, §4644, in certiorari cases, afford proper evidence of such service; and were it otherwise, such a certificate, if undated, would not show that the service was made in due time.</p>

<p>Petition for certiorari. Before Judge Evans. Johnson county. March 2, 1901.</p>

<p>Complaint for land. Before Judge Evans. Johnson superior court. May 14, 1901.</p>

<p>Complaint. Before Judge Robinson. City court of Wrights-ville. May 16, 1901.</p>

<p>Complaint. Before Judge Evans. Tattnall superior court. June 27,1901.</p>

<p>Trover. Before Judge Evans. Bullocli superior court. June 5, 1901.</p>

<p>1. A clause in a policy of fire-insurance requiring the assured to keep the hooks and inventories of his business “securely locked in a fire-proof safe at night, and at all times when the building [in which the stock insured is located] is not actually open for business; or, failing in this,” to “keep such books and inventories in some place not exposed to a fire which would destroy the . . building,” does not apply to a suspension of business caused by such an emergency as a fire raging in the vicinity and threatening the consumption of the building, the same not being actually shut up, and business operations being interrupted because of the threatened danger. Under such circumstances the clause in question does require the insured to exercise reasonable diligence to preserve the books and inventories.</p> <p>2. Defects in a motion for a new trial, caused by the failure to properly assign error upon the rulings of which complaint is made, can not be cured by setting out in the bill of exceptions the various grounds of the motion and specifically assigning error upon the overruling of each ground.</p> <p>3. Under the ruling of this court in Phenix Ins. Co. v. Hart, 112 Ga. 765, section 2140 of the Civil Code, which authorizes the plaintiff in an action upon a policy of insurance to recover, under certain conditions, damages and attorney's fees is unconstitutional.</p>

<p>Thera was no error in any of the charges of which complaint was made, and the evidence warranted the verdict.</p>

<p>Action on forthcoming bond. Before Judge Eve. City court of Richmond county. July 5, 1901.</p>

<p>1. A municipal corporation is not liable for personal injuries resulting from an error in a plan, adopted in pursuance of its legislative power, for the grading and constructing of its sidewalks.</p> <p>2. By the act of 1892, the city engineer of Augusta has full authority to determine, as a legislative or judicial act, upon the grade and plan of construction of the sidewalks of the city.</p> <p>8. Where in a suit against the city for injuries no fault is shown except that the plan and grade adopted by the city engineer was an erroneous one, and the evidence as to that is in conflict, a verdict finding the city liable is contrary to law.</p>

<p>Complaint. Before Judge Norwood. City court of Savannah, March 5, 1901.</p>

<p>Equitable petition. Before Judge Ealligant. Chatham superior court. May 7, 1901.</p>

<p>Certiorari. Before Judge Falligant. Chatham superior court. May 8, 1901.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. June 12, 1901.</p>

<p>A judgment denying an interlocutory injunction, when the same depends entirely upon questions of law, is, upon its affirmance by the Supreme Court, conclusive against the plaintiff in error as to every such question made by his assignments of error, though there be no express reference to all of them, either in the opinion filed or in the synopsis of the points decided.</p>

<p>Petition for injunction. Before Judge Barrow. Chatham superior court. January 17, 1902.</p>

<p>Equitable petition. Before A. L. Miller, judge pro hac vice. Bibb superior court. December 1, 1900.</p>

<p>1. Properly characterized, the action in the present case was founded upon the contract a copy of which was attached to the plaintiff’s petition; and that contract, rightly construed, was that of a member of the alleged partnership, and not of the partnership itself.</p> <p>2. An action is not maintainable against a partnership upon the individual contract of a member thereof, although he therein binds himself to pay to the other party to such contract a specified proportion of the net profits of the partnership during a stated period.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. January 26,1901.</p>

<p>Exceptions to decree. Before Judge Felton. Bibb superior court. February 22, 1901.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. April 22, 1901.</p>

<p>1. This case is controlled by the questions made in the cross-bill of exceptions ; and the judgment thereon being reversed, the writ of error on the main bill of exceptions is dismissed.</p> <p>2. Section 3542 of the Civil Code does not apply to a sale of timber growing upon land, when there is no deficiency in the quantity of the land, but only misrepresentation as to the quantity and character of the timber itself.</p> <p>3. Such misrepresentation affords no ground for defeating an action for the agreed price of the timber, when the purchaser had sufficient opportunity to inspect the same, was not prevented by the seller’s fraud from so doing, and voluntarily chose to rely on his statements without making the necessary examination to ascertain the truth.</p>

<p>1. This case as here decided is controlled and disposed of by the ruling made upon the assignment of error in the cross-bill of exceptions.</p> <p>2. Under the facts appearing the court erred in reinstating the motion for a new-trial.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. July 9, 1901.</p>

<p>Under the facts appearing in the record, the court erred in dismissing the motion for new trial.</p>

<p>Action, for damages. Before Judge Reid. City court of Atlanta. January 21, 1901.</p>

<p>1. The specific tax, “upon all agents of packing-houses doing business in this State,” which is levied by paragraph 19 of section 2 of the general tax act approved December 21, 1900 (Acts 1900, p. 21), is a vocation or occupation tax; and, construing together the various provisions of the act applicable to this tax, it is apparent that the act, in effect, declares that an agent representing a packing-house and carrying on its business in any county of this State is pursuing a vocation or occupation, and is himself doing business in this State, and is liable to the tax.</p> <p>2. The word “ agents,” as used in this paragraph of the act, means managing or superintending agents, and includes every agent who is the alter ego of the principal by whom he is employed.</p> <p>3. In imposing such tax upon such agents, the act in question is not violative of paragraph 1 of section 2 of article 7 of the constitution of this State, nor of the fourteenth amendment of the constitution of the United States.</p> <p>4. The execution issued in the present case sufficiently described the business in which the plaintifi in error, from whom the tax in question was exacted, was engaged.</p>

<p>Action on bond. Before Judge Norwood. City court of Savannah. August 13, 1901.</p>

<p>This case is-controlled hy the decision rendered in Reese v. Fidelity Association, 111 Ga. 482, the principle of which was followed in Mutual Life Ins. Co. v. Clancy, Id. 865.</p>

<p>Distress warrant — appeal. Before Judge Eelton. Bibb superior court. June 20, 1901.</p>

<p>Disposition of fines. Before Judge Felton. Bibb superior court. July 22, 1901.</p>

<p>In an action of trover the issue is one of title, and not of debt. Consequently neither the defendant in such an action, wherein bail is required, nor the surety on his bond can set up as a defense the discharge of the defendant in bankruptcy pending the action. This is true although the plaintiff elects to take a money verdict for the damages alleged to have been sustained.</p>

<p>Complaint. Before Judge Holden. Hart superior court. June-14, 1901.</p>

<p>^ When an amendment to a plaintiff’s petition has been in term duly allowed, it is not, at a subsequent term, within the power of the court to strike the amendment on the ground that it is not germane, or sets forth a new and distinct cause of action.</p> <p>2. That ground of the motion for a new trial in 'the present case assigning error upon the rejection of testimony was not well taken, the documents sought to be introduced being irrelevant to the issues on trial.</p> <p>3. The evidence was sufficient to warrant the verdict, and there was no abuse of discretion in refusing to grant a new trial.</p>

<p>Certiorari. Before Judge Russell. Gwinnett superior court. March 14, 1901.</p>

<p>The evidence was not sufficient to warrant the conviction, and a new trial should therefore have heen granted.</p>

<p>Indictment for assault with intent to murder. Before Judge Candler. Dooly superior court. September term, 1901.</p>

<p>Conviction of manslaughter. Before Judge Falligant. Motion for new trial. Before Judge Barrow. Chatham superior court. January 17, 1902.</p>

<p>Indictment for assault with intent to murder. Before Judge Littlejohn. Sumter superior court. January 18; 1902.</p>

<p>Indictment for stabbing. Before Judge Bower. City court of Bainbridge. January 20, 1902.</p>

<p>Indictment for misdemeanor. Before Judge Fite. Bartow superior court. January 18,1902.</p>

<p>Indictment for robbery. Before Judge Littlejohn. • Sumter superior court. January 29, 1902.</p>

<p>1. Perjury may be assigned upon false testimony going to the credit of a witness.</p> <p>2. Where an indictment for perjury charged that the offense was committed by falsely swearing in a judicial proceeding consisting of a preliminary investigation of one warrant against two persons, and the proof showed a preliminary investigation of two warrants, one against each of such persons, the variance was fatal.</p>

<p>1. One’s occupancy of land being in its nature a continuing act, every day’s occupancy thereof by him is, in legal contemplation, a new and independent act of occupation. This being so, a prosecution based upon the Penal Code, § 250, for the offense of occupying land under a forged title, knowing the same to be forged, is not barred by the statute of limitations, if the indictment is returned while the accused is so in possession of the land, or within four years after such possession has been abandoned.</p> <p>2. Whether the principal witness for the State was or was not an accomplice of the accused in the perpetration of the offense charged, there was sufficient evidence to warrant the verdict. If that witness was not such accomplice, his testimony fully established the guilty knowledge by the accused constituting an element of the crime, and in connection with the other testimony made out the State’s case. If he was such accomplice, there was ample corroboration of his testimony in all essential particulars.</p>

<p>Indictment for murder. Before Judge' Falligant. Motion for new, trial. Before Judge Barrow. Chatham superior court, January 28, 1902.</p>

<p>1. There is no constitutional limitation upon the power of the General Assembly to provide the manner in which a jury shall .be obtained ; and consequently an act creating a city court is not unconstitutional because it provides for the drawing and summoning of a panel of sixteen jurors for the trial of cases, from which a jury of twelve shall be obtained.</p> <p>■2. The constitution of this State guarantees to litigants in all cases tried in a city court the right to demand a trial before a jury of twelve persons ; and a provision in an act creating a city court, taking away this right in suits where the principal sum involved is fifty dollars or less, is unconstitutional and void. Such a provision is not, however, such an important part of the scheme of the act creating a city court as that its invalidity will have the effect of rendering void the entire act.</p> <p>3. The General Assembly has a discretion, uncontrolled by any constitutional limitation, to decide when a given locality has a sufficient number of inhabitants to entitle it to be incorporated as a city. '</p> <p>A. Where a town was reincorporated as a city by an act which repealed all conflicting laws, the territory embraced within the town thereafter became a city, notwithstanding the fact that the act granting a charter to the town had not been expressly repealed. The effect of the act incorporating the city was to repeal by necessary implication the charter of the town.</p> <p>■5. Where the title of an act was to establish “ the city court of Valdosta, in and for the county of Lowndes,” a provision in the body of the act that the city court of Valdosta be “ established in the city of Valdosta, and created with civil and criminal jurisdiction over the whole county of Lowndes,” did not, within the meaning of the constitution, contain any matter different from what was expressed in the title.</p> <p>>6. Where a person arraigned under an indictment in the city court of Valdosta waived trial by jury and was tried by the judge without a jury, his judgment convicting the accused is reviewable in the Supreme Court on writ of error, without regard to whether the trial was had at. a regular, or an adjourned, or a special term of the court; the judge of the city court having authority, under the act creating the court, to hold an adjourned term or call a special ■ term for the trial of criminal cases.</p> <p>7. Where in an indictment for larceny the ownership of the goods alleged to have been stolen is laid in a name which imports a corporation, the presumption is that it is the name of a corporation, and it is not necessary, even as against a special demurrer, to allege the fact of incorporation.</p> <p>8. Where an indictment charges the theft of a bottle of beer, and the evidence shows that the bottle charged to have been stolen was taken from a barrel containing bottled beer, it is not error to permit counsel for the State to ask the prosecutor, “ How many barrels have you missed ? ”</p> <p>9. Under an indictment for simple larceny the accused can be convicted upon evidence showing that the property described in the indictment was stolen from a house.</p>

<p>Indictment for misdemeanor. Before Judge Fite. Bartow superior court. December 23,1901.</p>

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

<p>Indictment for burglary. Before Judge Roberts. Dodge superior court. January 20, 1902.</p>

<p>Indictment for misdemeanor. Before Judge Barrow. Chatham superior court. February 7, 1902.</p>

<p>Accusation of malicious mischief. Before Judge Robinson. City court of WrightsviRe. March 1, 1902. • •</p>

<p>Indictment for adultery. Before Judge Butt. Muscogee superior court. March 1, 1902.</p>

<p>When in an answer to a writ of certiorari the judge whose decision is under review states in effect that he can not recall any of the facts of the case and does not remember whether the rulings complained of in the petition were made or not, and this answer is neither excepted to nor traversed, the judge of the superior court upon the hearing of the certiorari can not do otherwise than to overrule the same.</p>

<p>Indictment for involuntary manslaughter. Before Judge Roberts. Pulaski superior court. February 22, 1902.</p>

<p>Indictment for bastardy. Before Judge Freeman. City court of Newnan. March 15, 1902.</p>

<p>Indictment for misdemeanor. Before Judge Proffitt. City court of Elberton. February 26, 1902.</p>

<p>Certiorari. Before Judge Estes. Jackson superior court. February 12, 1902.</p>

<p>Habeas corpus. Before Judge Reid. City court of Atlanta. February 26, 1902.</p>

<p>Indictment for assault with intent to murder. Before Judge Henry. Floyd superior court. March 24, 1902.</p>

<p>Motion for new trial. Before Judge Russell. Gwinnett superior court. March 4, 1902.</p>

<p>Indictment for forgery. Before Judge Roberts. Wilcox superior court. February 13, 1902.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. February 21, 1902.</p>

<p>Indictment for selling liquor. Before Judge Littlejohn. Sumter superior court. March 18, 1902.</p>

<p>Indictment for selling liquor. Before Judge Crisp. City court of Americus. February 28, 1902.</p>

<p>Indictment for selling liquor. Before Judge Hart. Greene superior court. March 12, 1902.</p>

<p>Indictment for riot. Before Judge Seabrook. Liberty superior court. February 15, 1902.</p>

<p>Alimony. Before Judge Janes. Polk superior court. February 22,1902.</p>

<p>Indictment for riot. Before Judge Seabrook. Liberty superior court. February 15,1902.</p>

<p>1. The act approved December 11, 1901, “ to provide for the establishment and maintenance of a dispensary in the City of Borne,” etc., required only a majority of the votes actually cast at the election therein provided for to be in favor of the establishment of the dispensary in order to put that act in operation.</p> <p>2. An order passed by the ordinary, certifying that from the returns of the election held in pursuance of this act “ ‘ Tor Dispensary ’ received 1459 votes; ‘Against Dispensary’ received 1190 votes,” substantially complied with the requirement in the thirteenth section of the act, that the ordinary shall declare the result of the election ; and the effect of such an order was to put the act in operation.</p> <p>3. Since under the provisions of this act neither the City of Rome nor the County of Eloyd can incur any debt or liability, the act does not violate any of the constitutional provisions embraced in the Civil Code, §§5891, 5893.</p> <p>4. This act does not, because it prohibits the sale of spirituous, malt, vinous, and other intoxicating liquors “ otherwise than by said dispensary ” and, as a consequence, deprives the municipal authorities of that city of their pre-existing power to grant licenses for the sale of such liquors, violate any of the constitutional provisions embraced in the Civil Code, §§5732, 5771, 5778.</p> <p>5. Amere failure on the part of registrars to observe legal requirements will not vitiate an election, unless it appears affirmatively that “ the result is different from what it would have been had there been proper compliance.” Allegations designed to complain of such irregularities should', distinctly set forth specific facts, and not mere general conclusions.</p> <p>6. Every question of any material consequence arising in these three cases is disposed of either by the rulings announced above or by decisions of this court heretofore rendered in other cases.</p>

<p>1. When an answer to a petition for injunction is, though not properly verified, treated as evidence at an interlocutory hearing before the judge, and no objection thereto is then made, it is too late to make, in the Supreme Court, the point that the answer should not, for want of due verification, have been so treated.</p> <p>2. The act of December 3, 1901, providing for a dispensary in the City of La-Grange, authorized the establishment of the same if a majority of the votes cast in the election to be held under the act should be in favor of the dispensary.</p> <p>3. There is nothing in this act which violates the constitutional provisions embraced in the Civil Code, §§ 5893,5897, with reference to the creation of debts by municipal corporations.</p> <p>4. The act is not void for failure to specifically prescribe the “ way for holding ” the election, nor because it “ makes no provision for the necessary rules and regulations ” with respect thereto.</p>

<p>Levy and claim. Before Judge Brinson. Greene superior court. March 13,1901.</p>

Complaint. Before Judge Reid. City court of Atlanta. May 15, 1901. Maier sued on a promissory note, and prayed that the judgment thereon he made a special lien on realty conveyed to him to secure the payment of the note. The defendant demurred upon the ground that the plaintiff was not entitled to a special lien, and that the security was a mortgage and not a deed. The demurrer was overruled.

<p>Appeal from probate of will. Before Judge Evans. Washington superior court. August 31, 1901.</p>

<p>Foreclosure of mortgage. Before Judge Brinson. Richmond superior court. July 13, 1901.</p> <p>John H. Kahrs as- temporary administrator of Diedrich Kahrs, John H. Kahrs individually, Daniel H. Kahrs, Nicholas Kahrs Jr., George D. Kahrs, Maria Yonderleith, formerly Kahrs, and Wilhelmina C. Yonderleith, formerly Kahrs, as the children and heirs at law of Diedrich Kahrs, brought their petition to the April term, 1900, of the superior court of Richmond county, against Nicholas Kahrs and Anna C. Kahrs, to foreclose, in equity, a mortgage upon certain described realty, executed by the defendant, Nicholas Kahrs, which mortgage recited that the mortgagor was “indebted to the executors and administrators,heirs and assigns” of Diedrich Kahrs, deceased, “in the sum of eight thousand dollars, with interest thereon, payable annually, of five per cent., on the sixth day of August of each current year; ” and that the mortgage was given “ to faithfully secure to the representatives of the estate of Diedrich Kahrs, dec’d, the aforesaid sum of eight thousand dollars, with interest as aforesaid. ” The petition alleged that the mortgagor, Nicholas Kahrs, had, after the execution and record of the mortgage, conveyed the property to his wife, Anna C. Kabrs. Defendants, at the appearance term, filed the following plea in abatement: “That the plaintiffs ought not to have and maintain their action, because these defendants say that the said Diedrich Kahrs did not die intestate as in said petition alleged; that the said Diedrich Kahrs died testate, and his will has been duly admitted to record in the proper office in Germany, and these plaintiffs who are legatees under said will have received in part their legacies from the foreign executors of said will.” Pending this plea John H. Kahrs filed his petition, setting out that such foreclosure proceedings had been brought, and that since the filing of the plea he had been appointed administrator with the will annexed of Diedrich Kahrs, and praying that a rule nisi issue to Nicholas Kahrs and Anna G. Kahrs, requiring them to show cause why petitioner, as such administrator with the will annexed, should not be made a party plaintiff to the original petition. It is stated in the bill of exceptions: “That on January 7, 1901, and during the October term, 1900, of said superior court, said rule nisi came on to be heard before said judge, and, after argument thereon had, said judge . . granted a rule absolute that John H. Kahrs, administrator with the will annexed of Diedrich. Kahrs, be made a party plaintiff to above-stated petition.” On March 9, during the same term, defendants tendered their exceptions pendente lite, excepting to the issuance of the “rule nisi” and the granting of the “rule absolute,” which were certified by the judge and ordered to record.</p> <p>The answer of Nicholas Kahrs contained the following paragraphs: 1. “ Answering paragraph 1 of said petition, this defendant denies that John H. Kahrs was duly appointed temporary administrator of the estate of Diedrich Kahrs, and says that said alleged appointment was collusive and void, said Diedrich having died testate and his will'having been duly proven, and said John H., well knowing the same but fraudulently concealing said information from said court of ordinary, and by imposition on said court, by representing that said Diedrich died intestate, obtaining said appointment.” (11) “ Further answering, this defendant says that on May 18th, 1869, this defendant and said Diedrich Kahrs and one George Kahrs (who up to that time had been copartners under the firm name of George Kahrs & Bros.) dissolved said partnership and the total assets of said partnership were $79,422.93, and within a few days thereafter, to wit, on May . 22nd, 1869, said Diedrich Kahrs (who was then about to leave Georgia to take up his residence in Germany, and who thereafter continuously resided in Germany up to his death, in said country, on December 3,1887) duly appointed this defendant his agent and attorney in fact to attend to all his business of any and every kind whatever in Georgia while he remained abroad.” (12) “ That by his last will, as made on December 1st, 1887, said Diedrich specifically provided that this' defendant should continue to act as agent as aforesaid, in reference to all property of said Diedrich in Georgia, until the estate of said Diedrich was finally wound up, said will providing that the same should not be wound up until after the youngest child of said Died-rich became of age, which happened on January 3, 1899; and the executors and children of said Diedrich recognized and dealt with this defendant as the continuing agent of said Diedrich under said power of attorney and said will thence hitherto, and in this pro-, ceeding are seeking a final accounting with this defendant as such.” (13) “That as said agent this defendant has up to this time paid to or for the use of said Diedrich and his executors the sum of $68,823.86, and there has not yet been a general and final accounting.” (14) “That the net amount of said Diedrich’s one-third interest in said assets of said firm of George Kahrs and Bros., collected by this defendant at numerous periods from 1869 to 1899, was $23,447.92, and said sum of $68,823.86, so as aforesaid paid to or for said Diedrich and his executors, represents said one-third interest and the profits made thereon by the exertions of this defendant continuously'from 1869 to 1899.” (15) “That for said services from 1869 to 1899 this defendant has never received any compensation whatsoever, and says that said services are reasonably worth twenty per cent, on said sum of $68,823.86. Wherefore this defendant prays: (a) That there be a final and general accounting between him and plaintiffs as to all matters and things within the scope of said agency for said period. (b) That this defendant have judgment in his favor for twenty per cent, on said sum of $68,823.86, less any amount that upon said accounting may be found due plaintiffs from this defendant.”</p> <p>This answer was subsequently amended as follows:'“ That in the years, 1874, 1875, 1876, and 1877, this defendant [N. Kahrs] as the agent of plaintiffs’ testator, invested the sum of $3,347.50 of the money of said testator, then in this defendant’s hands as his agent, in Georgia Railroad stock, and as such agent sold the same on the 3rd day of August, 1887, for the sum of $7,980.00, and that sum $7,980.00, with the dividends on said stock, is the consideration of the debt sued on. That said Diedrich Kahrs, desiring to invest the same, loaned the same to this defendant; that this defendant therefor gave him his note, dated August 6th, 1887, for the sum of $8,200.00, due two years after date. That said transaction between said principal and said agent was not had as for and in a general settlement and accounting of said agency between said principal and said defendant, but simply and solely as an investment of said principal’s money, as if said agent had loaned the same under his power of attorney to a third party. That after the death of said Diedrich Kahrs, the mortgage sought to be foreclosed was made to secure that debt and none other, and that said mortgage, with all other property of said principal’s estate in the hands of this defendant, save an unascertained balance of old partnership assets, were turned over to the legal representatives of the late Diedrich Kahrs.” The answer of Anna C. Kahrs, in so far as it is material, was substantially the same as that of Nicholas Kahrs.</p> <p>At the April term, 1900, the plaintiffs filed the following motion “And now come the plaintiffs . . and move to strike from the answer of Nicholas Kahrs: 1. Paragraph 1, for the reason that paragraph 1 is irrelevant, and has no connection with the case. 2. To strike paragraph 11, for the reason that the same contains-statements which have no bearing on this case, and treats of matter irrelevant; and because defendant fails to attach to his answer' an exhibit of the power of attorney, by which he alleges to act as agent and attorney in fact. 3. To strike paragraph 12, because plaintiff fails to set forth the will or the part of the will of Diedrich Kahrs which defendant alleges provided that he, the said Nicholas Kahrs, should continue to act as agent; and because, if the power' of attorney did exist, it was revoked by the death of said Diedrich. Kahrs. 4. To strike paragraphs 13 and 14 of said answer, because-the same are too vague and indefinite, and do not set forth an itemized statement and bill of particulars of said $68,823.86, and fail to set forth definitely the time of payments, and the various amounts paid to Diedrich Kahrs, and the various amounts paid to executors ; the whole being entirely too vague and indefinite to be answered. 5. To strike paragraph 14, for the further reason that said paragraph is contradictory and indefinite, which makes it impossible for plaintiffs to answer; and for the reason that he fails to allege the particular items of services rendered, the time of rendition,, and the character of the services rendered; and the failure to attach a bill of particulars showing the time and amounts of the various amounts collected. 6. To strike paragraph 15, for the reason that it fails to set forth an itemized bill of particulars setting forth the time and the various amounts collected for D. Kahrs and for the estate of D. Kahrs, and because the defendant does not have any claim against the estate for any money collected prior to the death of Diedrich Kahrs, the claim for commission being barred by the statute of limitations, said claim being also barred as to any collection made four years prior to the filing of said answer. Wherefore the plaintiffs pray said paragraph be stricken from the said defendant’s answer.” Upon this motion, the judge passed the following order: “The foregoing objection to paragraph 1 is hereby sustained, and said paragraph 1 of defendant’s answer is stricken. The objections to paragraphs 13 and 14 are hereby sustained to-this extent, viz., that no account for services as agent can be allowed as a set-off for a time greater than four years before the commencement, inasmuch as said account is barred by the statute of limitations. The objections as to indefiniteness and failure to file bill of particulars are also sustained; and unless defts. amend by attaching a statement of what services were rendered and the dates thereof, the same are ordered stricken.” The answer was not further amended. Upon the trial the court, upon motion of plaintiffs, struck the plea in abatement, and, after hearing evidence in behalf of the plaintiffs — the defendants submitting no evidence, directed a verdict for the plaintiffs. The defendants made a motion for a new trial, which was overruled. They excepted to this judgment, and assigned error upon the exceptions pendente lite. There was no exception to the striking of the plea in abatement.</p>

<p>A judge has no power to amend a verdict after the same has been returned and the jurors have dispersed. This is none the less true in a case wherein the court had directed what the verdict should be, and the amendment merely supplied a particular finding covered by the direction, but which had been omitted from the verdict; and in no event, should the court undertake to amend a verdict which has been so directed, at the instance of a party whose attorney himself prepared the verdict which was actually returned.</p>

<p>Equitable petition. Before Judge Eelton. Bibb superior court. May 8, 1901.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. May 20, 1901.</p>

<p>Certiorari. Before Judge Candler. DeKalb superior court. May 22, 1901.</p>

<p>In order to prevent dormancy of a judgment it is required that an execution shall he issued on such judgment and placed upon the execution docket within a period of seven years from the date of the rendition of the judgment ; and if within such period an execution previously issued is placed on the proper docket, then the judgment does not become dormant, unless it appears that no proper entry has been made on the execution and recorded on the execution docket within seven years from the date of the entry of the execution on the docket.</p> <p>It appearing that the executions of the plaintiff in error in the present case were placed upon the execution docket within seven years from the date of the judgments upon which they were issued, and that they were placed in the hands of an officer to claim the funds arising from a sale of property of defendant in fi. fa, within seven years from the date of their entry upon such execution docket, they were not dormant, and the court below erred in holding that they were.</p>

<p>1 Where the charter of a municipal corporation provides that upon conviction of a person for violation of a city ordinance, “ no certiorari shall be allowed until the fine imposed by the mayor or other person presiding in said [police] court, and all costs, shall be deposited in the treasury of the city to abide the final decision in the case,” and that if an appeal is taken to the mayor and aldermen from the decision of the police judge, and his judgment is affirmed, no certiorari shall be allowed until the payment into the city treasury of the fine imposed and all costs, a compliance, by one who has been convicted in. the police court, with the provisions set out, is not a “payment,” but is in the nature of a deposit in lieu of a bail-bond; and if the final decision of the case is in favor of the plaintiff in certiorari, he is entitled to have his money returned to him.</p> <p>2. In such a case the statute of limitations does not begin to run against the one making the deposit until demand by him upon the city authorities.</p> <p>3. In view of the decision of this court in the case of Kassell v. Savannah, 109 Ga. 491, the judgment of the police court in the present case was not void, but merely erroneous, and the accused was not, therefore, entitled to sue for the recovery of the money as soon as deposited.</p> <p>4. In a case of this character the city is not liable for interest on the deposit until after the final decision of the case and until after demand is made.</p>

<p>The injury complained of occurred in Florida and the action was brought under the laws of that State, and the plaintiffs failed to introduce evidence sufficient to furnish the jury a basis for any estimate of the plaintiffs’ damages. The verdict for the defendant was, therefore, demanded, and the court did not err in refusing a new trial.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. April 10, 1901.</p>

<p>1. The evidence in the present case demanded a finding in favor of the plaintiff so far as the title to the property involved was concerned, and the court did not err in so directing the jury.</p> <p>2. None of the grounds of the motion for a new trial complain of errors which were of such a character as to require the granting of a new trial, except the one which assigns error upon the instruction of the judge which submitted to the jury the question whether the plaintiff was entitled to recover attorneys’ fees as part of the damages. There was, no evidence authorizing such an instruction. If the plaintiff will write off from the verdict the amount of the attorneys’ fees claimed in the petition, within ten days after the remittitur is filed in the office of the clerk of the court below, the judgment will be affirmed, with direction that the costs in this court and all costs that have accrued in the court below since the filing of the motion for a new trial be taxed against thé defendant in error; otherwise the judgment will be reversed.</p>

<p>The plaintiff below having at the trial made out a case entitling her to a recovery, and the evidence for the defendants being insufficient to defeat the same, a verdict in their favor was contrary to law.</p>

<p>A distress warrant issued upon an affidavit alleging that the rent distrained for “ is now due and unpaid ” is sufficiently met by a counter-affidavit alleging that “the sum distrained for under the warrant issued . . was not due at the time of issuing said warrant; ” and in the absence of a demurrer to such counter-affidavit, specially presenting the point that it embraced no general denial of indebtedness for rent, any competent evidence tending to show that no such indebtedness actually existed is admissible in behalf of the defendant.</p>

<p>1. When the owner of land which has been rented to another sells the same to a third person, and the three enter into an agreement that from thenceforth the tenant shall be the tenant of the purchaser, the status of these parties becomes, both with respect to themselves and others having or chargeable with notice of the facts, fixed by that agreement.</p> <p>2. One who takes a mortgage upon land in the actual possession of a person other than the mortgagor is in law chargeable with notice of all facts affecting the validity of the mortgage which could be ascertained by making proper inquiry of him who has such possession.</p> <p>3. When, as between vendor and vendee, a parol contract for the sale of land has for any reason been taken out of the statute of frauds, the latter, relatively to one who takes from the former a mortgage upon such land and who at the time of so doing knows, or ought to know, of the existence of such contract, occupies as good a position as if that contract had been duly reduced to writing.</p> <p>4. Taking a mortgage to secure the payment of an antecedent debt does not place the mortgagee upon the footing of one who bona fide advances money upon the faith of a mortgage given at the time the advance is made.</p>

<p>1. When as the result of the trial of a case the judge directed a verdict for the defendant, and on a bill of exceptions sued out by the plaintiff such direction was by the Supreme Court ruled to have been error because the evidence had on the trial was conflicting, the effect of such ruling was to declare that it was error to direct a verdict because of such conflict. Such ruling, however, does not have the effect in any way of controlling the discretion of the trial judge, exercised after a second trial of the case when a verdict was rendered for the plaintiff, in granting a new trial on the application of the defendant, if such verdict was, in the opinion of the trial judge, contrary to the law or the evidence.</p> <p>2. Under the rules of law which affect the liability of the company, in view of the evidence submitted, the judge did not abuse the discretion with which he is invested, in granting a new trial.</p>

<p>Exceptions to auditor’s report. Before Judge Lumpkin. DeKalb superior court. May 15, 1901. ,</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. April 11, 1901.</p>

<p>Exceptions to auditor’s report. Before Judge LumpMn. DeKalb. superior court. June 26, 1901.</p>

<p>1. While under the code an injunction which is purely mandatory in its nature can not be granted, the court may grant an order the essential nature of which is to restrain, although in yielding obedience to the restraint the defendant may. incidentally be compelled to perform some act.</p> <p>2. Where one wrongfully diverts a stream from its natural channel, and thus prevents it from flowing upon the land of a lower proprietor, the court may, at the instance of the latter, grant an injunction to prevent the owner of the land above from diverting the water from its natural course, although the effect of the order may be to require the defendant to destroy a ditch, or do other acts necessary to restore the water to its natural channel; and this is true though the diversion of the water was complete at the time the application for injunction was made, when it appears that the same was promptly made and there was no unnecessary delay.</p> <p>3. The case upon its merits is controlled by the rulings above announced, and the judge did not abuse his discretion in granting the injunction.</p>

<p>1. In a suit against a county by the owner of property abutting on a public road, for damages to the property alleged to have been sustained by a change in the grade of the road, the plaintiff must show that the alleged change was made under the authority of the officers of the county who were empowered by law to do the work complained of.</p> <p>2. The county commissioners of Bibb county, as successors in that respect of the ordinary, have exclusive control of the matter of changing the grade of public roads.</p> <p>3. The law of England of force at the date of our adopting statute authorized the presiding judge, in real and mixed actions, to permit the jury, in his discretion, with or without the consent of the parties, to view the premises; and there being nothing in the statute law of this State repealing this provision of the English law, it is still of force in Georgia.</p>

<p>Complaint. Before Judge Norwood. City court of Savannah. August 9, 1901.</p>

<p>Equitable petition. Before Judge Eelton. Bibb superior court. May 2, 1901.</p>

<p>Where the only questions presented for review by this court arise upon rulings by the court below on the trial of an issue raised by a special plea to the jurisdiction, which was not sustained by the verdict thereon returned, and it appears that neither a reversal of any one or more of such rulings nor a setting aside of such verdict would operate to terminate the main case, but would leave the same still pending, the writ of error is premature and must be dismissed.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. May 6, 1901.</p>

<p>When acorporation, in defense toan action against it, files a plea to the jurisdic- ■ tion, based on the ground that it had no agency or agent in the county wherein the suit was brought at the time of the filing of the plaintiff’s petition, and traverses the return of the sheriff purporting to show service upon its agent in that county, and the special issue arising upon the traverse is tried separately and found against the defendant, the parties having agreed “ that the plea to the jurisdiction of the court shall abide the final judgment on the issue made by the traverse to the return of service : ” Held, that while the defendant may move for a new trial of this special issue, it can not bring here for review a judgment overruling such motion until after the rendition of the final judgment in the main case.</p>

<p>Appeal from probate of will. Before Judge ■ Holden. Oglfe.thorpe superior court. April 17, 1901.</p>

<p>The evidence authorized the verdict. The requests to charge which were refused were, so far as legal and pertinent, covered by the general charge, which fairly submitted to the jury the issues involved in the case ; and the charges excepted to were substantially correct. The judgment of the trial judge, refusing to grant a second new trial, will not be disturbed.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. August 30, 1901.</p>

<p>Foreclosure of mortgage. Before Judge Felton. Bibb superior court. December 27, 1900.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. July 11, 1901.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. March 1, 1901.</p>

<p>1. Under the Civil Code, §§4323, 4324, a judge of the superior court has authority in vacation to pass upon an application for the discharge of a receiver who has been imprisoned for contempt in refusing to pay over money in obedience to an order of the court.</p> <p>2. In such a case it is within the power of the judge to discharge the receiver on the ground that he is unable, on account of poverty, to pay over the money, and the court is not absolutely bound to consider and pass, in express terms, upon the question whether or not the applicant has, by the imprisonment which he has already endured, been sufficiently punished for the contempt.</p>

<p>Trover. Before Judge Holden. Glascock superior court. April 8, 1901.</p>

<p>Foreclosure of mortgage. Before Judge Reese. Hart superior court. December 24, 1900.</p>

<p>As against a general demurrer, the petition set forth a cause of action.</p>

Action for damages. Before Judge Calhoun. City court of Atlanta. June 27, 1901. Joshua Horner shipped a horse, of the value of upwards of $500, from Baltimore to Atlanta, consigned to T. M. Horner, the owner of the animal, which, according to the evidence, was put into a closed car and there allowed to remain, without any food, water, ventilation, or any attention whatever, until arrival at destination, a period of three days.

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. July 22,1901.</p>

<p>Complaint for land. Before Judge Candler. Campbell superior court. July 24, 1901.</p>

<p>Complaint. Before Judge Evans. Washington superior court. June 6, 1901.</p>

<p>Complaint. Before Judge Eve. City court of Richmond county. June 7, 1901.</p>

<p>1. There was no merit iimhe motion to dismiss. The bill of exceptions contains a sufficient legal assignment of error. The plaintiff in an action against two or more persons may, when the same is as .to one of them dismissed on demurrer, immediately bring the case to this court, in order that he may, by a, reversal of the judgment, if thereto entitled, have his action reinstated and tried as a whole.</p> <p>2. A devisee of real property, who has received from the executor a deed purporting to convey to her the land devised, is not estopped, either as against the executor orpurchasers from him, from setting up a claim to other land devised which is not described in the deed ; and this is true although the devisee had such deed duly recorded ; nor is one who holds under a purchaser from the executor, relatively to the devisee, a bona fide purchaser without notice.</p> <p>3. The petition in this case was not subject to demurrer because of misjoinder of parties defendant. The facts alleged show such privity between the defendants concerning the subject-matter of the suit that all could be properly embraced as defendants in one action.</p>

<p>Claim. Before Judge Felton. Houston superior court. May 3,1901.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. May 15, 1901.</p>

<p>1. A schedule of property sought to be exempted under the Civil Code, § 2866, properly returned to the ordinary and by him recorded, is admissible in evidence in behalf of the head of the family, although it includes one acre of land and does not show on its face that the improvements were not worth more than $200, or that the land was chiefly valuable for agricultural purposes, or 'that the land, if in a city, town, or village, was not worth more than $500.</p> <p>2. If the land sought to be exempted is not in a city, town, or village, and contains less than the number of acres allowed by law, no survey and plat are necessary.</p> <p>3. A creditor of the head of the family may attack the exemption by showing that it was illegal, although the debt was not contracted until after the return of the schedule and its record by the ordinary.</p> <p>4. If the creditor shows that at the time the exemption was sought to be made the property was not situated in a city, town, or village, and that the improvements thereon were worth more than $200, and that the land did not derive its chief value from its adaptation to agricultural purposes, the exemption would be invalid and the land subject to levy and sale by the creditor.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. July 9, 1901.</p>

<p>Complaint. Before Judge Hart. Hancock superior court, June 1, 1901.</p>

<p>Equitable petition. Before Judge Estes. Elbert superior court. March 15, 1901.</p>

<p>1. Gross neglect, as defined by the Civil Code, §2900, “is the want of that care which every man of common sense, how inattentive soever he may be, takes of his own property.” A court in undertaking to give to a jury this definition, should not omit the words, “ how inattentive soever he may be.”</p> <p>2. Where in a special contract for the transportation of live stock it is expressly stipulated that, 1 ‘ in case of accident to or delays of time from any cause whatever, the owner and shipper is to feed, water, and to take proper care of stock at his own expense,’’and that the owner or person in charge of the stock is to have “ all proper facilities on trains and at stations for taking care of ” the stock so shipped, he being, for this purpose, furnished free transportation and required to ride upon the train carrying the stock, there is no duty upon the railway company of feeding or watering the animals, and it can not, under such a contract, be held liable for any damages resulting from a failure on its part so to do.</p>

<p>Levy and claim. Before Judge Russell. Banks superior courfc. January 22,1901.</p>

<p>1. The petition set forth a cause of action as against a general demurrer, and the special demurrers which were overruled were not well taken.</p> <p>2. When the court of ordinary granted an order authorizing an administrator to sell realty which had been set apart as a homestead to the family of a decedent during his lifetime, it is to be presumed in favor of such a judgment that the court had before it evidence sufficient to authorize it to'find that a sale of the property was necessary for the purpose of paying some debt which was superior to the homestead, and the judgment so rendered is binding upon all parties interested in the property who claim under the decedent, until it Is reversed or set aside in the manner prescribed by law.</p>

<p>Petition for injunction. Before Judge Russell. Jackson superior court. January 4,1902.</p>

<p>1. Under the decision of this court in Cooper v. State, 103 Ga. 405, “ the city court 8f Gwinnett,” established by the act of December 14, 1895 (Acts of 1895, p. 384), became, after the passage of the amendatory act of December 16, 1897 (Acts of 1897, p. 484), a city court within the meaning of the constitution.</p> <p>2. The judge thereof who was in office at the time of the passage of the last-named act rightly continued after its enactment to perform the duties pertaining to the judgeship of that court.</p>

<p>Injunction. Before Judge Lumpkin. Fulton superior court.. September 16, 1901.</p>

<p>Injunction. Before Judge Brinson. Richmond superior court. October 21,1901.</p>

<p>Action on insurance policy. Before Judge Falligant. Chatham superior court. January 25, 1901.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. February 18, 1901.</p>

<p>1. When in the trial of an action upon a policy of accident-insurance, which contained a provision that the insurer would not be liable for injuries received as a result of “voluntary or unnecessary exposure to danger, or to obvious risk of injury,” it appeared that the plaintiff was injured while attempting to board a moving train of cars propelled by steam, his right to recover depended upon whether, under all the circumstances at the time the attempt was made, an ordinarily prudent person would have made the attempt. If the attempt would not have been made by an ordinarily prudent person, and if there was no emergency at the time which required the plaintiff to board the train, except the inconvenience of delay or possible injury to business resulting therefrom, the attempt would be a voluntary and unnecessary exposure to danger and an obvious risk of injury, within the meaning of the clause of the policy above quoted.</p> <p>2. Some of the instructions given in the trial of the present case were not in entire accord with what is above laid down, and a new trial should have been granted.</p>

<p>Complaint. Before Judge Felton. Houston superior court. May 3, 1901.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. May 11, 1901.</p>

<p>Distress warrant. Before Judge Felton. Bibb superior court. June 20, 1901.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. May 1, 1901.</p>

<p>Rule. Before Judge Eelton. Bibb superior court. July 22, .1901.</p>

<p>Complaint. Before Judge Proffitt. City court of Elberton. March 1,1901.</p>

<p>Petition for discharge. Before Judge Nottingham. City court of Macon. January 27, 1902.</p>

<p>Appeal. Before Judge Hart. Hancock superior court. March 7, 1901.</p>

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

<p>1. Where one having no interest in the matter advances money to pay the debt of another, he can not claim subrogation to the rights of the creditor, in the absence of any express or implied'agreement to that effect.</p> <p>2. There was no material error in any of the charges complained of; under the issues involved in the case there was no error in the admission or rejection of evidence; and the evidence warranted the verdict upon the issues submitted by the court.</p> <p>3. The plaintiff claimed under two separate and distinct deeds. The judge fairly and fully submitted to the jury the plaintiff’s claims and contentions under one of these deeds, but did not submit to them his claims under the other. This court, therefore, orders a new trial, but directs that it be confined to the trial of the rights of the parties under the deed which was not passed upon by the jury.</p>

<p>Certiorari. Before Judge Holden. Glascock superior court. April, 1901.</p>

<p>Under the facts shown in evidence and a proper construction of the contract sued on, the conrt erred in granting a nonsuit.</p>

<p>Equitable petition. Before Judge Bussell. Oconee superior • court. January 28,1901.</p>

<p>■ Action for damages. Before Judge Russell. Gwinnett superior court. March 7,. 1901.</p>

<p>Action on insurance certificate. Before Judge Cobb. City court of Athens. April 30, 1901.</p>

<p>Action for damages. Before Judge Candler. Clayton superior court. January 22,1901.</p>

<p>1. When the members of a trading corporation which is in debt, for the purpose-of defeating its existing creditors, form a new corporation of like character,, and, in pursuance of their scheme, take possession of the assets of the first,, and issue stock to its members to the amount of the agreed value of such assets, the whole transaction is void as to such creditors, and they may by attachment cause those assets to be seized, and, on rendition of judgments-in their favor, subject such assets to the satisfaction of those judgments as-against any person claiming any right or lien as a stockholder of the new corporation ; and this is so whether such person was or was not a party to-the attachment litigation, or had notice of the' pendency of the same.</p> <p>2. It is not erroneous, even after a case has been referred to an auditor, and is on trial in the superior court on exceptions to his report, to admit testimony showing that a declaration in attachment had, at a certain time, been deposited with the clerk of the superior court, who through inadvertence omitted to make an entry of filing thereon ; nor is it error, upon such showing being duly made, to allow the clerk to make such an entry nunc pro tunc.</p> <p>3. No party is entitled to attorneys’ fees out of a fund brought into court at his-instance, and to which another has a superior claim, when it appears that the bringing of the fund into court in no way operated to the benefit of the latter, but to his injury because of the fact that the amount of the fund was-diminished by .being charged with the payment of the necessary expenses of ' a receivership.</p> <p>4. No error in any ruling or finding of the judge which has not been specifically referred to has been shown.</p>

<p>While a petition which seeks to recover possession of land and mesne profits on a legal title must, under the constitution of this State, he instituted in the superior court of the county where the land lies, yet a court of the county where the land lies, as to a person who is a resident of another county in this State, has no jurisdiction to grant equitable relief such as injunction and the appointment of a receiver, although the petition under which the land is sought to be recovered contains prayers for such equitable interposition. The grant of an injunction and the appointment of a receiver in such cases comes only within the jurisdiction of equitable principles, and a petition seeking relief thereunder can, as an original action, be maintained only in the county of the residence of one of the defendants against whom such relief is sought.</p>

<p>1. When it appears that one who held a deed to described land sold all the property embraced therein to another and executed and delivered to the purchaser a conveyance to the same, it is not necessary for a party seeking to establish the loss of the deed first mentioned to show that it is not in the possession, custody, or control of the grantee in the same, in the absence of proof that he retained possession of the same after he had sold the land which it covered, the presumption in such a case being that this deed was delivered by him to the person to whom he conveyed the property.</p> <p>2. Where, after proof of the loss of the original, a certified copy of the record of an instrument purporting to be the deed of a municipal corporation, and reciting that the grantor had caused the common seal of the corporation to be affixed thereto by the clerk of the city, was offered in evidence, and there appeared upon the same, after the signature of the person executing it as mayor, a scroll with the word “ Seal” written in it, an objection to its introduction in evidence, upon the ground that the seal of the municipal corporation was not attached to the deed was properly overruled.</p> <p>3. A deed executed in 1854, purporting upon its face to be made by the Mayor and Council of the City of Macon and to convey to the grantee therein named a described portion of the southwest commons of the city, reciting that the grantor “ hath caused these presents to be subscribed to by the Mayor of the City of Macon and the Common Seal of said City to be hereunto affixed by the Clerk of said City,” attested by the clerk and sealed with the corporate seal, is the deed of the municipal corporation, although not signed in the corporate name of the municipality, but in the name of a particular person as mayor.</p> <p>4. In view of other documentary evidence introduced by the plaintiff, there was no error in overruling the objection to the certified copy of the deed from the municipal corporation to the grantee named therein, upon the ground that it did not sustain the allegation of the petition, in that it did not show that the deed conveyed lot 2 in block 12, “ according to Schwabb’smap.”</p> <p>5. The proof as to the identification and execution of the “ Schwabb map ” was sufficient to authorize its introduction in evidence.</p> <p>6. In an action of ejectment wherein the defendant relied upon adverse possession for seven years under color of title, it was not erroneous to refuse to permit a witness for the defendant to testify that its possession was notorious. The testimony would have been simply as to a conclusion of the witness.</p> <p>7. Where in such a case, under tire pleadings, testimony as to the value of the land in controversy, without the improvements placed thereon by the defendant and those under whom it claims, is relevant, the value of the land to be proved is its market value, and not what it may have been worth to the defendant for a particular purpose.</p> <p>8. It is erroneous for the trial judge to express his opinion as to the effect of evidence in the case ; and this is true though under the evidence there may not be room for doubt as to the correctness of the opinion expressed by the judge.</p> <p>8. Where the question whether one entered into possession of land in good faith is involved in a case, it is competent for him to testify affirmatively that he paid for it in good faith.</p> <p>10. It is not erroneous to refuse to allow the introduction of parol evidence as to the contents of a paper alleged to be lost, when the evidence as to its loss fails to show that it is not in the possession of a person who would be a natural and proper custodian of the same.</p> <p>11. One who purchases land from another, and who, without written evidence of title, is placed by the seller in possession of the same, does not hold under color of title, although his vendor may have what would be color of title in him if he were in possession of the premises.</p> <p>12. Even granting that the opinion of a witness for the plaintiff, testifying asan expert, as to the cost of the brick work constituting the foundation upon which certain boilers were erected, was inadmissible because he admitted that he did not know how deep the foundation work extended into the earth, an assignment of error upon the admission of such testimony over the objection of the defendant is without merit, When it appears that this same witness, gave precisely the same opinion, based upon a description of the foundation* including the depth to which it extended, given in the testimony of a witness for the defendant.</p> <p>13. Where in an action for the recovery of land the pleas of the defendant and the evidence make a case to which the act of December 21, 1897, is applicable, and it is admitted that the value of the improvements set up by the defendant exceeds the amount of the mesne profits, it is erroneous to allow the plaintiff to elect to take a money verdict for the value of the land and themesne profits, and to thereupon charge the jury that, “ under the election made by the plaintiff in the case, the jury would have the right, should the-plaintiff be entitled to recover, to say what the value of the land was, and what the value of the mesne profits are, and provide further that upon defendant paying the amount of the land and the mesne profits the title to the lot should vest in defendant, and, in the event defendant should not be willing to pay that amount, that it should be sold and the amount devoted to the payment of the amount the plaintiff recovered for the value of the land and the mesne profits.”</p> <p>14. Where, in such a case as that just above stated, the defendant sets up improvements placed upon the land by another person under whom the defendant holds, and the proof shows that the premises sued for, prior to the possession of the defendant, were placed in the hands of a receiver as the property of such third party, the fact that the property was in possession of the receiver will not prevent the plaintiff from recovering mesne profits for the time the receiver held it, if the plaintiff, in the absence of the receivership* would have been entitled to recover mesne profits accruing during this period.</p> <p>15. Where a city lot has, by lawful authority and grant of the municipal corporation, been permanently enlarged by the addition thereto and the incorporation therein of an encroachment upon a public street, by which the original lot has been so extended as to embrace territory which was formerly a part, of such street, the land covered by the encroachment belongs to the person holding the legal title to the lot as it originally stood, although the encroachment may have been granted on the application of another person who claimed to be the owner of the lot. The true owner of the lot, in an action to recover the same and the encroachment, is, upon establishing his title to the former and the existence of the latter, entitled to recover all the land embraced within the lot as enlarged by the encroachment, and also mesne profits thereon, if sued for and proved.</p> <p>16. There was no merit in the other questions made in the motion for a new trial.</p>

<p>Levy and claim. Before Judge Felton. Bibb superior court. April 18, 1901.</p>

<p>1. A money judgment for permanent alimonyin favor of awife against her husband, payable in monthly instalments beginning after the expiration of five years from the date of their marriage, does not bar an action by her against him and a surety upon a bond given under section 388 of the Penal Code. (All the Justices concurring, except Lewis, J., absent.)</p> <p>2. The liability of the principal obligor and his surety on such a bond is not affected by wrongful conduct on the part of the wife after the marriage, the husband being bound to maintain and support her and her offspring during the period fixed by the bond, without reference to her behavior. It was in the present case proper for the trial judge, ex mero motu, to decline to allow tho defendants to sustain by proof a defense based upon alleged misconduct on the part of the wife. (Per Little, Pisn, and Cobb, JJ.)</p> <p>3. The plaintiff in an action upon such a bond is not entitled to recover an amount greater than that which would have been sufficient to adequately support the wife and her offspring, if any, for the period or periods elapsing before the bringing of the suit during which support was withheld. (Per Simmons, C. J., Lumpkin, P. J., and Little, J.)</p>

<p>Motion to dismiss the writ of error.</p> <p>Holland brought an action against Saul and Thompson. Saul demurred on the ground that no cause of action against him was set forth. The demurrer was sustained, and the case was dismissed as to Saul and ordered to proceed as to Thompson. To this ruling the plaintiff excepted pendente lite. He then obtained a verdict and judgment against Thompson, and filed a bill of exceptions assigning error upon the judgment sustaining the demurrer as to Saul.</p>

<p>1. Other than as indicated, below, the grounds of the motion for a new trial do not show any error which requires a reversal of the judgment.</p> <p>H. In the trial of a case brought by a servant against a master to recover damages for personal injuries received by the servant in the use of defective machinery furnished by the master, it was error to charge, in effect, that the master was liable for the injuries so received if he was negligent in failing to provide machinery reasonably safe for the work, or to keep the machinery in proper repair, and that if the master had been negligent in either of these particulars, and the servant was injured in consequence of that negligence, the master would be liable, without instructing the jury in the same connection, either literally or in substance, that before the servant could recover for such injuries, it must appear that he did not know and had not equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known thereof. In a case where the injured servant is aminor, the instructions should be so qualified as not to require of him more diligence than should be expected of one of his age and capacity.</p> <p>3. In a suit of the nature above indicated it was error so to charge the jury that a verdict for the plaintiff would under any circumstances be authorized if he were not a servant, but a mere volunteer, at the time of the injury.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. June 29, 1901.</p>

<p>Injunction. Before Judge Falligant. Chatham superior court. July 15, 1901.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. May 18, 1901.</p>

<p>Habeas corpus.' Before Judge Lumpkin. Eulton superior ■court. March 19, 1902.</p>

<p>Habeas corpus. Before Judge Lumpkin. Fulton superior court. April 15, 1902.</p>

<p>The evidence was not sufficient to warrant a conviction, and the court therefore erred in overruling the petition for certiorari.</p>

<p>Indictment for working on Sunday. Before Judge Sparks. ■City court of Brunswick. March 19, 1902.</p>

<p>In the trial of a criminal case it is error to admit evidence offered to show acquiescence of the accused hy silence in statements made by the officer who arrested him to another officer, as to the sayings and conduct of the accused when arrested, when it is not affh-matively shown that the accused was present when the conversation occurred, or that he heard the same, or that he failed to deny the truth of the statements when they were made.</p>

<p>Indictment for selling liquor without license. Before Judge Reagan. Pike superior court, April 16, ,1902.</p>

<p>Indictment for murder. Before Judge Candler. Pulton superior court. April 1$, 1902.</p>

<p>Motion for discharge. Before Judge Estes. Hall superior court. April 10,1902.</p>

<p>Accusation of assault and battery. Before Judge Robinson. City court of Wrightsville. March 25, 1902.</p>

<p>Accusation of wife-beating. Before Judge Robinson. City court of Wrightsville. March 25, 1902.</p>

<p>Indictment for carrying pistol to public gathering. Before Judge Evans. Jefferson superior court. February 12, 1902.</p>

<p>Indictment for burglary. Before Judge Evans. Washington, superior court. April 3, 1902.</p>

<p>Indictment for breaking and entering railroad-car. Before-Judge Evans. Washington superior court. April 3, 1902.</p>

<p>The rule that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one of the conspirators is in legal contemplation the act of all, is subject to the qualification that each is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy.</p>

<p>Accusation of buying seed-cotton at night. Before Judge Robinson. City court of Wrightsville. March 25, 1902.</p>

<p>Conviction of manslaughter. Before Judge Bennet. Ware superior court. March 27, 1902.</p>

<p>Conviction of shooting at another; Before Judge Evans. Washington superior court. April 2, 1902.</p>

<p>Indictment for misdemeanor. Before Judge Reagan. Butts superior court. April 2,1902.</p>

<p>Conviction of manslaughter. Before Judge Candler. Fulton superior court. April 12, 1902.</p>

<p>Indictment for kidnapping. Before Judge Janes. Haralson .superior court. April 21, 1902.</p>

<p>Money rule. Before Judge Russell. Jackson superior court. November 15, 1901.</p>

<p>Equitable petition, etc. Before W. A. Charters, judge pro hac vice. Hall superior court. September 2, 1901.</p>

<p>Injunction. Before Judge Reagan. Monroe superior court. February 19,1902.</p>

<p>Certiorari. Before Judge Estes. Habersham superior court. September 7, 1901.</p>

<p>Certiorari. Before Judge Gober. Cobb superior court. September 19, 1901.</p>

<p>Equitable petition. Before Judge Gober. Gilmer superior court. October 14, 1901.</p>

<p>Complaint for land. Before Judge Gober. Cherokee superior court. October 1, 1901.</p>

<p>1. A defendant is not entitled to a new trial because a pauper affidavit which the plaintiff, who lost the case upon a previous trial, filed for the purpose of taking the same to the Supreme Court, was, upon the subsequent triai thereof in the lower court, inadvertently handed to the jury, along with other papers in the case, when they went out to make their verdict.</p> <p>2. A request to charge, based upon the theory that the testimony of the defendant's witnesses was unimpeached and uncontradicted-, was properly refused, when it appears that such testimony was, as to a material fact, directly in conflict with that of a witness, or witnesses, for the plaintiff.</p> <p>3. Where the charge of the court upon a given subject is made in response to a written request setting forth the instructions desired, and is as comprehensive upon the subject as the instruction set forth in the request, the party at whose instance the charge was given can .not complain that it was not full enough.</p> <p>4. The law upon the question of negligence, both as it affected the plaintiffs’ right to recover and the right of the defendant to have a judgment rendered in its favor, having been substantially and fairly submitted to the jury, and the law in reference to contributory negligence not being, under the contentions of the parties, directly involved in the case, this court will not reverse the judgment of the lower court, overruling a motion for a new trial, because the court failed to charge the law applicable to contributory negligence, when there was no request to charge upon this subject.</p> <p>5. There was no merit in the ground of the motion wherein it was alleged that the court failed to submit to the jury the defense relied upon by the defendant.</p> <p>6. A motion to rule out the whole of the testimony of a particular witness was properly overruled, when a considerable portion of such testimony was admissible.</p> <p>7. Under the evidence, the verdict was not so excessive as to require the grant of a new trial.</p>

<p>Complaint. Before judge Fite. Cobb superior court. November 26,1901.</p>

<p>Motion for new trial. Before Judge Gober. Gilmer superior court. November 18, 1901.</p>

<p>Equitable petition. Before Judge Reagan. Fayette superior court. August 10, 1901.</p>

<p>Levy and claim. Before Judge Hart. Wilkinson superior court. November 5, 1901.</p>

<p>Action for damages. Before Allen Fort, judge pro hac vice. City court of Americus. November 21, 1901.</p>

<p>Removal to bankrupt court. Before Judge Russell. Clarke superior court. October 17, 1901.</p>

<p>1. In an action against a railway company for damages, for its failure to transport and deliver goods turned over to it for that purpose, it was not erroneous to allow plaintiff to testify that he had never been paid for such goods.</p> <p>2. “ The declarations of the agent as to the business transacted by him are not admissible against his principal, unless they were a part of the negotiation, and constituting the res gestee, or else the agent be dead.”</p> <p>3. Way-bills made out by a railway company, being declarations in its own favor, are not admissible in its behalf.</p> <p>4. There was no error in refusing to give the last clause of the request to charge referred to in the eleventh ground of the motion for a new trial.</p> <p>5. The evidence failed to show that the cotton, for the loss of which the action was brought,' was delivered to the defendant company ; and for this reason a new trial should have been granted.</p>

<p>Action on insurance policy. Before Judge Estes. Hall superior court. October 28, 1901.</p>

<p>Actions on bonds. Before Judge Lumpkin. Cobb superior court. December 18, 1901.</p>

<p>Certiorari. Before Judge Gober. Gilmer superior court. October 15,1901.</p>

<p>"Where, in the trial of a traverse of an answer to a summons of garnishment, it was shown by the plaintiff that the garnishee had, more than three years before the service of the summons, admitted indebtedness to the defendant, . while the garnishee testified that, subsequently to the time the admissions were made, a full settlement with the defendant had proved that the garnishee was not in any wise indebted to the defendant, and there was no evidence to contradict this testimony of the garnishee, the evidence was not sufficient to support a verdict sustaining the traverse.</p>

<p>Levy and claim. Before Judge Fite. Gordon superior court. September 13, 1901.</p>

<p>A promise to pay attorney’s fees, embraced in a promissory note executed on September 19, 1896, is not enforceable-unless an action be brought on such note and “ a plea or pleas be filed by the defendant and not sustained.”</p>

<p>Equitable petition. Before Judge Henry. Eloyd superior court. October 15, 1901.</p> <p>The Rome Street Railroad Company was incorporated by the General Assembly in 1884 (Acts 1884- 5, pp. 191, 235). Its railroad was built and equipped as a horse-car line, and the line was extended over the bridges in Rome (see 77 Ga. 616). In 1892, when the company was about to change the railroad from a horse-car line to an electric-car line, the county authorities, contending that this would greatly increase the servitude upon the bridges and the risk of danger, etc., declined to allow the bridges to be crossed by the new tracks, unless compensation should be made for such use. As a result of negotiations which ensued between the company and the county, an agreement was executed on February 25, 1892, between these parties, whereby the county granted to the company the right to lay and maintain a single track on one side of each of three designated bridges, to place thereon electric wires and appliances, and to run cars over the same; and the company agreed to pay to the county $100 annually for each bridge used, “in consideration of the grant herein named.” The other stipulations of the contract are not material here. In 1896 the City Electric Railway Company, having succeeded to the possession of the properties, franchises, etc., of the company before named, applied to the county authorities for a reduction of the annual charge for the use of the bridges, and obtained a reduction of one third of the amount. A contract similar to the former one was entered into; and the company made the annual payment of $200 until 1898, when it ceased to make such payment. The county authorities, in February, 1900, resolved to have the tracks removed from the bridges; whereupon the company filed its petition for injunction, etc., contending that it had the right to use the bridges for its tracks and cars without paying anything. The county answered, setting up the contracts mentioned, and praying for judgment against the company for the past-due annual payments. The case was submitted to the judge, who rendered judgment for the county for the amount due under the contract, and granted the injunction against the removal of the tracks. The railroad company excepted. The other essential facts appear in the opinion.</p>

<p>1. A charge to the effect that the testimony of a witness testifying positively is entitled to more weight than that of one who testifies negatively is open to serious criticism unless it embraces an instruction that the jury, in weighing the testimony of such witnesses should consider and pass upon the question of their credibility.</p> <p>2. Instructions presenting issues not made by the pleadings or evidence should not be given.</p> <p>3. A railway conductor is not bound to personally enter a car upon its arrival at a station to inform passengers for that station that they have reached their destination. -It is sufficient if the name of the station is duly announced by any employee of the railway company whom it may select to perform this duty.</p> <p>4. All material questions now presented for decision here are covered by the rulings above announced.</p>

<p>Motion to set aside judgment. Before Judge Henry. Floyd superior court. December 9, 1901.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd ■county. December 31, 1901. *</p>

<p>Complaint for land. Before Judge Janes. Douglas superior court. August 21, 1901.</p>

<p>Claim. Before Judge Janes. Haralson superior court. November 15, 1901.</p>

<p>Action for damages. Before Judge Janes. Haralson superior court. January 24, 1902.</p> <p>On the trial of the case made by the allegations set out in the opinion, the testimony for the plaintiff showed that on April 10, about eleven o’clock in the morning, a freight-train of the defendant passed the plaintiff’s land, going west, and moving as if it were heavily loaded. For over a mile there was a heavy grade in that part of the railroad. An east wind was blowing hard. In five minutes after the train passed, a witness, working in a field a quarter of a mile distant, saw smoke rising from fire on the right of way of the defendant, which was full of broom-sedge, grass, leaves, and rubbish. This fire burned the plaintiff’s rail fence around a ten-acre field. As soon as it was discovered, the plaintiff and two witnesses did what they could to put it out, but it gained too rapid headway to be controlled. For the defendant two witnesses testified, in brief, that the engine of the train was in good condition and properly equipped, including spark-arrester, ash-pan, and blower; that it was properly operated at the time in question, and nothing unusual was done; that it was inspected both before and after the day of the fire, etc. The engineer remembered who the conductor of the train was, but failed to remember the name of the fireman. He had a record showing who the fireman was, but did not bring it to court. A claim agent of the defendant testified that he had never been able to ascertain who the fireman was; that the records of the company had been partly destroyed by a fire in the superintendenfc’s office, except a copy of the original record of the movement of trains, which showed the engineer, the conductor, and the number of the engine, but did not show the fireman.</p>

<p>Complaint. Before Judge Janes. Haralson superior court. December 20, 1901.</p>

<p>When, in resistance to the levy upon personalty of an execution issued upon the foreclosure of a statutory lien, the defendant files a counter-affidavit and replevies the property actually seized by the officer, by giving a bond for its forthcoming, the former is estopped from thereafter setting up that the entry of the levy did not sufficiently describe such property.</p>

Action for breach of contract. Before Judge Longley. City .court of LaGrange. October 3, 1901. T. M. Hogan sued E. M. Sivell on the following contract: “ Georgia, Harris Co. Know all men by these presents that I -have this day sold T. M. Hogan 10 bales of cotton averaging 500 lbs. each, at 7 cents per pound, basis middling threes (Inman’s classification) ; said cotton to be delivered in Chipley, Ga., by Nov. 1st, 1900. Witness my hand and seal this 9th day of July, 1900.

<p>Complaint. Before Judge Henry. Heard superior court. November 18, 1901.</p>

<p>Levy and claim. Before Judge Janes. Carroll superior court. August 23, 1901.</p>

<p>The lien of a mortgage held by a stranger to a suit in which a receiver is appointed to wind up the affairs of a partnership against the individual interest in real estate of one member of the partnership remains upon the property notwithstanding it has been sold by the receiver.</p>

<p>1. A contractor with the government of the United States to transport the mail within the same may contract with or hire another to transport the mail according to the terms of his contract, and such an agreement is not in contravention of the Revised Statutes of the United States, § 3963, which prohibits the assignment or transfer of mail contracts.</p> <p>2. It follows from the foregoing that where one who had undertaken to transport the mail for a mail contractor, and had given a bond with security for the faithful performance of the service to be rendered, failed to render the service in accordance with his contract, he and his securities were liable to the contractor upon the bond.</p>

<p>Foreclosure of mortgage. Before Judge Spence. Dougherty ■superior court. October 16, 1901.</p>

<p>A prospective purchaser at a sale of property, to he had under a power contained in a mortgage, is'hound to inquire as to the terms and conditions upon which the person exercising the power is authorized to sell; and when the power of sale provides that the sale shall he had at public outcry for cash, all who hid at the sale do so with full knowledge that to complete the sale payment or tender of the final hid in cash is essential; and one, although the highest and hest bidder at the time the property is knocked off, is not entitled to demand a conveyance unless the amount of his bid is duly tendered in cash, if not immediately after the property is knocked off to him, at least during the legal hours of sale on the day upon which the sale is had.</p>

<p>1. While a trial judge may, within the restrictions prescribed by the Civil Code, § 5331, direct a verdict, this court will in no case overrule as erroneous a refusal to do'so.</p> <p>2. Grounds, of a motion for a new trial complaining of rulings on evidence can not be considered unless the evidence is set forth either literally or in substance, or attached to the motion as an exhibit.</p> <p>3. The charge excepted to was not erroneous for the reasons assigned ; the evidence, though conflicting, authorized the verdict, and the court did not err . in refusing to grant a new trial.</p>

<p>Certiorari. Before Judge Henry. Floyd superior court. September 7, 1901.</p>

<p>Appeal. Before Judge Reagan. Coweta superior court. December 17, 1901.</p>

<p>Certiorari. Before Judge Harris. Coweta. superior court. November 6, 1901.</p>

<p>Certiorari. Before Judge Reagan. Monroe superior court-September 5, 1901.</p>

<p>Certiorari. Before Judge Reagan. Butts • superior court. August 21, 1901.</p>

<p>,1. It is not erroneous to overrule a written motion to strike a “part” of an answer when the “ part ” referred to is not set forth in the motion, and there is nothing in the answer to which the words used in the motion as descriptive of the portion of the answer sought to be stricken are applicable.</p> <p>12. A tender by the holder of a bondfor title, to the maker thereof, of the amount due upon á promissory note therein described, coupled with a condition that the latter shall execute the conveyance which such holder is entitled to receive upon paying the note, is not, under the law embraced in the Civil Code, § 3728, a valid and lawful tender.</p>

<p>1. Though the estate of a decedent is solvent and exceeds in value the sum of five hundred dollars, his widow is not, under the Civil Code, § 3465, as a matter of right, absolutely entitled to a year’s support of at least that amount in value, hut the same may he fixed at one hundred dollars or more, the amount to he “ estimated according to the circumstances and standing of the family previous to the death ” of the husband.</p> <p>2. .The return of the appraisers appointed to set apart a year’s support is prima facie correct; and if caveated hy the widow on the ground that the allowance is too small, the burden is upon her of showing by appropriate evidence that such is the fact.</p> <p>S. A widow, though left childless, is under the law entitled to have set apart to her, as a part of her year’s support, “ a sufficient amount of the household furniture ” left by her deceased husband.</p>

<p>Levy and claim. Before Judge Butt. Talbot superior court. August 19,1901.</p>

<p>1. A clerk of a superior court has no authority of law to issue a writ of certiorari, not applied for in forma pauperis, unless the plaintiff files with his petition for certiorari such a bond as that required by the Civil Code, § 4639, which must, either on its face, or by other written evidence bearing the official signature of the judicial officer before whom the case was tried in the first instance, show that it has been duly approved by him.</p> <p>2. When a writ of certiorari was issued upon a bond upon which there was no-entry evidencing the fact of such approval, the writ should have been dismissed, and it was too late at the trial in the superior court to allow the justice of the peace who tried the case to testify that the bond “was in point of fact accepted by the witness in terms of the statute, and he simply neglected to put his approval on the bond, but had mentally approved the same,” and to thereupon allow this officer to make an entry of approval nunc pro tune.</p>

<p>Certiorari. Before Judge Roberts. Twiggs superior court. September 6, 1901.</p>

<p>1. The mere fact that a railroad company is in possession of and operating a line of railway which formerly belonged to another company does not render the company so in possession liable for damages growing out of the breach of a contract which had been entered into by the other company, or for a tort committed by it, before the change of possession took place. In order to render a railroad company liable upon the contracts of or for torts committed by its predecessor in title, it must appear either that it has assumed the liability of its predecessor sought to be imposed upon it, or that the law charges it with such liability.</p> <p>2. There is nothing in Civil Code, § 1863, construed in the light of tbe decision of this court from which itwas codified, which renders a corporation purchasing the line of railway of another corporation liable either upon the contracts or for the torts of its predecessor in title, in the absence of an agreement to he so liable.</p>

<p>When in a written contract between a consignor and a transportation company it was stipulated that, as a condition precedent to.the right of the owner and shipper to recover damages for loss or injury to live stock shipped under such contract, “he will give notice in writing of his claim therefor to the agent of the railroad companies actually delivering said stock to him, .„ . before said stock is removed from the place of destination, . . and before said stock is intermingled with other stock,” the owner or consignor is not entitled to recover unless it be shown that such notice was given according to the terms of the contract. Such an agreement is reasonable.</p>

<p>Money rule. Before Judges Estes. Dawson superior court. August, 1901.</p>

<p>Action for damages. Before Judge Gober. Cobb superior court, December 23, 1901.</p>

<p>Certiorari. Before Judge Gober. Cherokee superior court.. October 4, 1902.</p>

<p>Action for damages. Before Judge Gober. Cobb superior court, December 23, 1901.</p>

<p>Certiorari. Before Judge Eite. Whitfield superior court. August 1, 1901.</p>

<p>Affidavit of illegality. Before Judge Longley. City court of LaGrange. September 13, 1901.</p>

<p>Certiorari. Before Judge Fite. Gordon superior court. September 13, 1901.</p>

<p>Trover. Before Judge Longley. City court of LaGrange. January 9, 1902.</p>

<p>Levy and claim. Before Judge Henry. Heard superior court. ^September 26, 1901.</p>

<p>Action for damages. Before Judge Reagan. Fayette superior court. October 28, 1901.</p>

<p>Attachment for contempt. Before Judge Reagan. Butts superior court. February 26, 1902.</p>

<p>A purchaser of land at a judicial sale obtains no right, by the purchase,' to the deeds constituting the chain of title to the land, in the hands of the original owner.</p>

<p>Trover. Before Judge Butt. Marion superior court. August 1, 1901.</p>

<p>Equitable petition. Before Judge Butt. Taylor superior court. November 16, 1901.</p>

<p>Certiorari. Before Judge Butt. Talbot superior court. September 18, 1901.</p>

<p>Action for damages. Before Judge Sheffield. Early superior •court. October 16, 1901.</p>

<p>When a superior court properly overrules all the grounds of a petition for certiorari save one presenting the point that the verdict under review was contrary to law because for an amount larger than that sued for,, that court may, - with the assent of the plaintiff, correct the verdict and the judgment entered thereon by reducing them to the amount claimed in the action, and then allow the same to stand.</p>

<p>Complaint. Before Judge Littlejohn. Macon superior court. November 7, 1901.</p>

<p>Since a tax execution is not founded upon the judgment of any court, hut is a purely summary process, it is essential to the validity of such an execution that all the necessary jurisdictional facts authorizing its issuance should appear upon its face. It follows that a writing purporting to he such an execution, but which merely commands the levying officers to whom it is directed to make of the property of a named corporation a specified sum as “ now due ' and owing to said State and county for taxes, back taxes up to 1899, as well as all lawful costs,” is void.</p>

<p>Trover. Before Judge Spence. Worth superior court. October 31,1901.</p>

<p>Complaint. Before Judge Williams. City court of Waycross. December 23, 1901.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. November 11,1901.</p>

<p>Complaint. Before Judge Brinson. Chattooga superior court. October 21, 1901.</p>

<p>Under the facts disclosed by the record in this case the evidence demanded a finding that the defendant was a non-resident of the State of Georgia, and it was erroneous to direct a verdict to the contrary.</p>

<p>Action for damages. Before Judge Hodnett. City court of Carrollton. November 11,1901.</p>

<p>Complaint. Before Judge Hodnett. City court of Carrollton. October 21, 1901.</p>

<p>Action on insurance, policy. Before Judge Reagan. Spalding superior court. August 14, 1901.</p>

<p>Action for damages. Before Judge Littlejohn. Henry superior court. October 23, 1901.</p>

<p>Attachment. Before Judge Reagan. Pike superior court. December 7, 1901.</p>

<p>Complaint. Before Judge Adams. City court of Dublin. September 5, 1901.</p>

<p>Certiorari. Before Judge Hart. Greene superior court. September .19,1901.</p>

Complaint. Before Judge Butt. Talbot superior court. September 13,1901. A prisoner charged with crime in Talbot county was sent to the jail of Muscogee county for safe-keeping. While there confined his condition demanded the attention of a physician, and as such the plaintiff (who was the physician employed by Muscogee county) visited him a number of times, at the request of the jailer.

Complaint. Before Judge Butt. Harris superior court. October 14, 1901. A warrant issued from a justice’s court of Harris county, for the arrest of one Shorter. He was arrested in Troup county, and turned ■over to Brady, the sheriff thereof. When so delivered he had been shot and so severely wounded as to render it impossible to carry him to Harris county on the following day without greatly endangering his life.

Motion to dismiss the writ of error. Owens brought suit, laying his damages at $600. At the trial, after the introduction of evidence, the court, on motion of the defendant, directed a verdict for $15 in favor of the plaintiff, who excepted to this and to other rulings made during the trial.

<p>Application for partition. Before Judge Butt. Harris superior court. October 17, 1901.</p>

<p>Levy and claim. Before Judge Littlejohn. Stewart superior court. November 22, 1901.</p>

<p>Foreclosure of mortgage. Before Judge Littlejohn. Sumter superior court. December 2, 1901.</p>

<p>Complaint. Before Judge Felton. Dooly superior court. November 15,1901.</p>

<p>Action for breach of warranty. Before Judge Bower. City •court of Bainbridge. November 11, 1901.</p>

Action for damages. Before Judge Hart. Lowndes superior court. September 9, 1901. To the facts stated in the opinion the following is added in connection with the third division thereof. A witness for the plaintiff testified that he was about 200 yards from the railroad when the train passed, the locomotive of which threw out the fire. It. was daytime, in May. There was no fire before this train passed.

<p>Eule for contempt. Before Judge Eoberts. Pulaski superior court. August 27, 1901.</p>

<p>Certiorari. Before Judge Roberts. Twiggs superior court. September, 1901.</p>

<p>Certiorari. Before Judge Roberts. Montgomery superior court. December 16, 1901.</p>

<p>Action for damages. Before Judge Bennet. Glynn superior court. August 17,1901.</p>

<p>Equitable petition. Before Judge Bennet. Appling superior court. August 17, 1901.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. November 23, 1901.</p>

<p>1. Property in pledge may be seized and sold under execution against the pawner ; and on notice by the pawnee to the levying officer, the court, in the distribution of the fund arising from the sale of the property, will recognize the lien of the pawnee according to its dignity, and will so direct the payment of such proceeds as will protect the legal rights of the pawnee.</p> <p>2. Where such a levy was made, and the property was claimed by the pledgee, and the case thus arising was submitted to the presiding judge for decision without the intervention of a jury, he sufficiently discharged his duty by adjudging generally that the property was subject, although the agreement for submission embraced a stipulation that the court was to fix “the legal and equitable rights of all parties without prejudice to the rights of either party in the premises.” /</p>

<p>Complaint. Before Judge Spence. Dougherty superior court. ■October 8, 1901.</p>

<p>Where a suit was pending in a county court and asummons of garnishment was. issued and served upon a debtor of the defendant, and the garnishee answered admitting funds in his hands, and thereafter the defendant gave a bond to. dissolve the garnishment, and the clerk of the court notified the garnishee that the garnishment had been dissolved, and the garnishee paid to the defendant the amount in his hands ; and where the bond given to dissolve the garnishment was fatally defective, held: (1) That there is no law requiring the clerk to give such notice, and one who acts upon it does so. at his peril. (2) That, the bond having been fatally defective, the garnishee is not protected. Rogers v. Moore, 40 Ga. 386, distinguished.</p>

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

<p>Complaint. Before Judge Roberts. Montgomery superior •court. October 29,1901.</p>

<p>Certiorari. Before Judge Bennett. Appling superior court. August 17,1901.</p>

<p>Certiorari. Before Judge Bennett. Appling superior court. August 17, 1901.</p>

<p>Trover. Before Judge Williams. City court of Waycross. August 26, 1901.</p>

<p>Complaint for land. Before Judge Bennet. Coffee superior court. September 9, 1901.</p>

<p>Appeal. Before Judge Lumpkin. Fulton superior court. September 14, 1901.</p>

<p>Action for damages. Before Judge Parker, City court of Baxley. December 16, 1901.</p>

<p>Certiorari. Before Judge Candler. DeKalb superior court. December 7, 1901.</p>

<p>Petition for certiorari. Before Judge Lumpkin. Pulton superior court. October 4, 1901.</p>

<p>Action upon insurance certificate. Before Judge Reid. City -court of Atlanta. June 25,1901.</p>

<p>The plaintiff in error did not have a fair and impartial trial, in the manner contemplated by law, which is guaranteed to him by the constitution of this State ; and whether the verdict was or was not supported by the evidence, it must for this reason be set aside. The trial judge erred in overruling the motion for a new trial.</p>

<p>Petition for certiorari. Before Judge Bennet. Pierce superior-court. April 10, 1902.</p>

<p>Even if an accusation in a police court charging a person with the sale of “intoxicated ” liquors can be properly construed to charge the sale of intoxicating liquors, a judgment finding such person guilty is erroneous when the only evidence as to the character of the liquor sold is that it was beer, the evidence not showing what kind of beer it was or that it was an intoxicating liquor.</p>

<p>1. The Supreme Court will dismiss the writ of error based upon a bill of exceptions assigning error upon the overruling of a demurrer to an indictment, when it appears that after such bill of exceptions had been sued out a nolle prosequi was, in the court below, entered upon the indictment.</p> <p>2. It does not follow, because a criminal case was called for trial on the day-after that upon which the bill of indictment was returned, that the accused had not had sufficient opportunity to prepare for his defense, when it appears that he had for some time been under indictment for the identical offense charged in that indictment, and that it in fact took the place of a previous indictment upon which a nolle prosequi had been entered.</p> <p>.8. An indictment good in substance will not be quashed upon a demurrer which in mere general terms characterizes it as “vague, uncertain, and indefinite,” without pointing out any particulars in which it is so.</p> <p>4. The words, “contrary to the laws of said State, the good order, peace, and dignity thereof,” appearing at the conclusion of an indictment, though apparently, in their grammatical connection referring to a preceding statement therein not relating to the commission of the act constituting the offense charged, will be held to apply to that act.</p> <p>5. A special plea in abatement of an indictment, alleging the pendency against the accused of another indictment for the same offense, is certainly not good when the plea itself discloses that a nolle prosequi has been entered upon the former indictment.</p>

<p>Certiorari. Before Judge Brinson. Burke superior court. April 19, 1902.</p>

<p>Indictment for robbery. Before Judge Littlejohn. Dooly •superior court. May 10, 1902.</p>

<p>Certiorari. Before Judge Evans. Emanuel superior court. April 26, 1902.</p>

<p>1. A conviction of simple larceny, under an indictment charging one with the . offense of larceny from the house, may lawfully be had, when the evidence introduced is sufficient to show that the accused wrongfully and fraudulently took and carried away the property which the indictment alleges was contained in the house ; because the distinct offense of simple larceny is involved in the crime of larceny from the house. But such a conviction is wholly unsupported by evidence which tends to show that the accused took and carried away from a different place similar but entirely distinct property from that referred to in the indictment.</p> <p>2. The trial judge erred in overruling the certiorari.</p>

<p>1. While the General Assembly has full power to amend its legislative enactments, an amendatory act, to be valid as such, must relate to an existing statute, and not to one which, having been repealed, is wholly inoperative.</p> <p>2. At the date of the passage of the act of November 30, 1897, to establish the city court of Jefferson, in Jackson county, there was in that county no incorporated city having the name of Jefferson ; and consequently it was not within the power of the General Assembly to provide that the judgments of that court might be reviewed by the Supreme Court upon a direct bill of exceptions.</p>

<p>The evidence warranted the verdict, and none of the grounds of the motion for a new trial which were argued in the brief of counsel for the plaintiff in error contain any sufficient reason for reversing the judgment of the trial judge refusing to grant a new trial.</p>

<p>1. A writ of certiorari purporting to have been sued out in forma pauperis is void when the affidavit of the plaintiff does not at least substantially meet the requirements of the statute.</p> <p>2. When such a certiorari is dismissed for want of the proper affidavit, the case is at an end, and can not be renewed under the provisions of the Civil Code, §3786.</p>

<p>Indictment for burglary. Before Judge Eoberts. Dodge superior court. May 20, 1902.</p>

<p>Indictment for murder. Before Judge Reagan. Butts superior court. May 12, 1902.</p>

<p>1. Whenever a carrier, through its agents and servants, knows or has opportunity to know of a threatened injury to a passenger from a third person, whether such person is a passenger or not, or when the circumstances are such that injury to a passenger from such a source might reasonably be anticipated, and proper precautions are not taken to prevent the injury, the carrier is liable for damages resulting therefrom^,/</p> <p>2. The presence upon a train of two negro tramps, secreted and stealing a ride thereon, would not alone be sufficient to cause the employees in charge of the train to suspect that such tramps were armed with deadly weapons, and to anticipate that when brought into the train under arrest they might endeavor to escape and, while an employee was attempting to prevent the escape, make</p> <p>¡ a murderous assault with such weapons upon one to whom the railroad company owed the duty of protection and who was taking no part in the effort to prevent the escape.</p>

<p>It does not necessarily follow that because an insurance company has an agent who resides and has an office in a given county and therein transacts the business of soliciting insurance, the company itself has in that county “ an agency or place of doing business.” ■ When, therefore, an action is brought against such a company in a county other than that in which its principal office is located, the jurisdiction of the court is not shown by proving merely that, at the time the contract out of which the suit arose was made, the defendant had in the county a resident agent and that he had therein an office of his own. In such a case it should further appear that the company had established and was maintaining, either in the office occupied by the agent or elsewhere in the county, an agency of its own and under its own control and management for the transaction of its business.</p>

<p>As the only evidence tending to establish the amount of the plaintiff’s demand was a writing upon which he relied as constituting an admission by the defendant of liability for the sum sued for, and as the latter met this evidence > with an explanation which, if true, completely overcame its force and effect, a finding in his favor was fully warranted.</p>

<p>Processioning. Before Judge Roberts. Laurens superior court. November 12, 1901.</p>

<p>When the petition in an action of trover embraces three paragraphs, each of which is in substance a separate count, for the recovery of personalty therein described, and two of these counts are bad and one good in law, a general demurrer relating to the entire petition affords no ground for striking either one of the defective counts. These can be reached only by an. appropriate special demurrer, directly attacking such counts, and pointing out their defects.</p>

<p>It is erroneous to overrule a motion to dismiss a certiorari when it appears that the petition for the writ contains no assignment of error to either the judgment which is sought to be set aside, or to any ruling made in the trial court.</p>

<p>Complaint. Before Judge Eoberts. Telfair superior court. August 31, 1902.</p>

<p>Action .or damages. Before Judge Reid. City court of Atlanta. October 19, 1901.</p>

<p>Action for damages. Before Judge Williams. City court of Way cross. September 9, 1901.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. September 25, 1901.</p>

<p>Appeal. Before Judge Lumpkin. Eulton superior court. November 19, 1901.</p>

<p>1. Where an officer not authorized to issue a warrant notifies a person that he will have him arrested on a warrant and prosecuted unless he pays a certain tax, and such person, because of such threat, pays the tax, the payment is voluntary, under the Civil Code, §3723, and the money paid can not be recovered.</p> <p>2. A petition seeking to recover money so'paid is subject to demurrer, although it alleges that such payment was made under an urgent and immediate necessity therefor and to prevent an immediate seizure of the plaintiff’s person and property. These averments are but r conclusions of law, and can avail nothing where it appears that the facts upon which they are based make the payment a voluntary one.</p>

<p>1. A conveyance which expresses as a consideration a sum of money, or any other thing which the law deems valuable, no matter how small the sum or the value may be, can not be said as a matter of law to be a voluntary conveyance.</p> <p>2. A conveyance which expresses as a consideration love and affection and a small sum of money is not upon its face voluntary.</p> <p>3. The consideration of a deed may always be inquired into when the principles of justice require it.</p> <p>4. Whether a deed which expresses as a consideration love and affection and a small sum of money is a voluntary conveyance depends upon the intention of the parties; and this intention is to be ascertained by an inquiry into all the facts and circumstances at the time of its execution, which will throw light ' upon the question as to whether the deed was executed as the consummation of a sale or as the evidence of a gift.</p>

<p>Complaint. Before Judge Calhoun. City court of Atlanta. November 19, 1901.</p>

<p>Complaint. Before Judge Calhoun. City court of Atlanta. November 30, 1901.</p>

<p>Complaint for land. Before Judge Lumpkin. Eulton superior court. October 16, 1901.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. December 23, 1901.</p>

<p>1. Where the only defense to a suit on a promissory note was that the loan for which it was given was usurious, in that the broker who negotiated the loan, and who charged commissions for his services out of the money loaned, was the agent of the lender, who knew of and acquiesced in that method of compensating the broker; and where the uncontradicted evidence showed that the broker was the agent of the borrower, and not of the lender, it was not erroneous to direct a verdict for the plaintiff for the full amount appearing to be due on the note.</p> <p>2. Evidence that papers pertaining to a loan were sent to a given point, enclosed in a letter, is admissible without the necessity of introducing the letter itself, the contents of the letter not being in any way involved in tb,e controversy, and no attempt being made to offer proof in regard thereto.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. January 16, 1902.</p>

<p>.Action for damages. Before Judge Holden. Washington superior court. October 16, 1901.</p>

<p>Action of trespass. Before Judge Bennet. Ware superior court-August 20, 1901.</p>

<p>Equitable petition. Before Judge Estes. Hall superior court. July term, 1901.</p>

<p>Ejectment. Before Judge Evans. Washington superior court. March 8, 1901.</p>

<p>Yalidation of bonds. Before Judge Harris. Coweta superior ■court. April 28, 1902.</p>

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. December 23, 1901.</p>

<p>Complaint for land. Before Judge Lumpkin. Fulton superior court. September 17, 1901.</p> <p>In September, 1861, Marshall M. Elliott contracted to sell 222 acres of land to Edward R. Elliott, his brother, for $2,000, making a bond for title and taking two notes for $1,000 each, the first due on December 25, 1861, and the second due one year thereafter. The first note was paid at maturity, and Edward R. Elliott went into possession of the land and so remained until his death in 1889. On the second note was a credit of $215, dated June 2, 1862. This note remained in the possession of Marshall M. Elliott until his death in 1888. In 1890 the heirs of Marshall M. Elliott brought suit against the administrator of Edward R. Elliott, to recover the land. Among the defenses set up was the contention that the second note was paid by Edward R. to Marshall M. Elliott, and that thereby Edward R. obtained a perfect equity, although no deed appeared to have been made. The trial was confined to this issue, and the jury, upon conflicting evidence, found for the defendant. The plaintiffs excepted to the overruling of their motion for a new trial. This motion contains the following grounds:</p> <p>1. Error in ruling out a question propounded to Mrs. Rebecca D. Elliott (widow of. Marshall M. Elliott), whether she ever knew of his collecting from Ed. Elliott the money due on the note in question, and her answer that she did not; it having previously appeared from the testimony of this witness that she had lived with her husband from their marriage in 1843 to his death, and that she had the custody and control of hi^ money, papers, keys, etc., and kept them locked up for him during that time.</p> <p>2. Error in ruling out testimony of the same witness, that Marshall M. Elliott did not leave any money at the time of his death. Movants contended that this was relevant in connection with the other testimony of this witness, wherein it appeared that Marshall M. Elliott had made no investment of any large sum of money before his death and after the date when it was claimed by the defendant that this money was paid.</p> <p>3. ' Mrs. Lucretia Elliott, the widow of Edward R. Elliott, testified, that the last payment upon the land was made in 1866 or 1867; that her husband told her to get his money for him, saying that he was going so pay Marshall, who was then present; that she went and got the money, and they made her stay and help .count it out; that she went back to her dinúer, and they came in where she was, and Marshall said, “Now, Cretia, you have got a good home; me and Edmond has settled up, and it will last you a lifetime,” adding, in answer to her inquiry, that there were 240 acres of land, more or less. The plaintiffs moved to rule out the statement that Marshall Elliot made at the time the money was paid, on the ground that the witness was incompetent to testify thereto. The motion was overruled.</p> <p>4. Error in refusing a request to charge the jury as follows: “ It is a presumption of law and of fact that if E. E. Elliott had paid the note introduced in evidence, and the same was given as a part of the purchase-money of land and for the last payment due thereon, and the other note or notes had been previously paid, he would have obtained a deed to his land at the time he paid the note. The fact that he failed to get a deed to the land sued for, at the time-that he or his administrator claims that he paid the note, raises a presumption that he did not pay the money as claimed.”</p> <p>5. The verdict is contrary to law and evidence. And since the trial the plaintiffs have discovered the record of a litigation between E. E. Elliott and Lee L. James, of which neither they nor their counsel knew before the verdict was rendered, and which contradicts the testimony of Mrs. Lucretia Elliott in a most material particular, and thereby discredits all of her testimony; she having testified, on cross-examination, that her husband obtained about $1,700 in gold from a sale of-other land to James during the war or soon after, and the record so discovered going to show that the payment by James to Elliott was not made until 1873.</p>

<p>Levy and claim. Before Judge Lumpkin. Fulton superior court. September 14, 1901.</p>

<p>Garnishment. Before Judge Lumpkin. Fulton superior court. November 2,1901.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. October 3,1901.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. December 21,1901.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. October 30, 1901.</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court. October 28, 1901.</p> <p>A contract was entered into on April 11, 1900, between the parties to this action, whereby the defendant company agreed to sell to the plaintiff a described city lot, and to furnish the money to build a house as per specifications made between the plaintiff and J. L. Denton, contractor, for $2,400, payable $300 cash and $30 monthly, the deferred payments being represented by promissory notes. It was further agreed, in consideration of the small payments and long time allowed, that, should the plaintiff fail to' pay two successive notes at the time specified, the defendant should have the right to take possession of the premises after thirty days notice to the plaintiff, who should relinquish all claims to the premises under this contract, and all sums paid by her should go as rent for the premises ; but should she make all the payments as herein specified, then the defendant should execute to her, or assigns, a good and sufficient title to the land. Further, that when the plaintiff should have paid $800 in.pursuanee of this agreement, the defendant would execute a bond for title to said lot. She was authorized to take immediate possession of the premises, and agreed to pay all taxes and insurance thereon.</p> <p>On August 10, 1900, the plaintiff sued the defendant for $410, as the amount of money she had paid to it and as held by it without consideration to her and for her use ;■ making the following allegations : The only party, at the beginning of this transaction, with whom she had any relations was the defendant, and she understood, and so alleges, that it was to sell her the property and build her a house according to certain specifications to which she agreed. The specifications contained nothing, as she understands them, except the description of the house, the material to be used, the manner of construction, the sewer connection, and everything in relation to the kind of house and the appointments and connections that were to be made. The specifications contained nothing as to the price, and nothing as to the time or manner of payments, made no obligations whatever'on her part to the alleged contractor named in the specifications; and it was the purpose of the defendant that she should have no title to the land or the house until the purchase-money of both had been paid, and should incur no obligation that should be chargeable either upon the real estate or the improvements thereon. The only party to whom she owed any obligation in the entire transaction was the defendant, which undertook to build the house according to the specifications before referred to; and not having done so, it is liable to her for money had and received and for whatever amounts she has paid to it. She has paid it $410, and the house has not been built and can not be built according to the specifications, the alleged contractor and the defendant itself admitting that the house has not been completed according to the specifications, and the time in which it was to have been completed has long since passed. She insists upon her strict and legal rights as to the building of the house; and inasmuch as the defendant, its agents, the alleged contractor, Denton, and the South Georgia Lumber Company, defendant’s security, have admitted that they did not build the house according to the contract, she declares that the contract between her and the defendant is violated^ and that there is no longer any obligation upon her to accept the premises, inasmuch as the defendant did not and can not comply with the contract made with her, either in completion of the house within the time or in details of its construction; and she has the right and does declare that she will not, at this time, accept the premises, as all of the work of the defendant done upon the house is entirely unsatisfactory to her, and she elects to sue for the money she has paid to the defendant. She has never gone into possession of the house; it has never been offered to her as completed ; and she now declines to accept it or to have anything further to do with the defendant about it.</p> <p>The defendant moved to dismiss the action, for want of a cause alleged; and the plaintiff offered to amend her petition by attaching the agreement with J. L. Denton, contractor, and the South Georgia Lumber Company, to build a house for plaintiff, “the same as specified in the contract attached to the original declaration; ” the plaintiff alleging that the true intent and meaning of the original contract and the one here exhibited was, that the defendant was to build the house; and further alleging that the contract is ambiguous, and asking to explain it by writings and circumstances occurring at the same time. The agreement referred to is in the form of a letter from Denton to the defendant, dated April 12, 1900, proposing to build a house as per specifications made with the plaintiff, for $1,165, “same to be completed in 45 days if weather will permit, or as soon as possible; house to be commenced at once, payments to be made as work progresses; house to be aswell finished as 515 Loyd st.” Below this was written a guaranty of completion of the above contract, in consideration of payment of contract price being made to the South Georgia Lumber Co., signed by that company. Also, a receipt signed by that company for $375 on the contract, dated April 28, 1900.</p> <p>The amendment was not allowed, and the action was dismissed.</p>

<p>The petition being in substance sufficient, there was no error in overruling a general demurrer thereto.</p>

<p>Certiorari. Before Judge Lumpkin. Eulton superior court. November 21, 1901.</p>

<p>1, A requirement in a policy of fire-insurance, that the insured shall submit to an examination under oath touching the matters relating to the risk assumed by the company and the destruction of the property insured, is binding and valid ; and a refusal to comply with this condition will preclude the insured from recovering upon the policy, where it provides that no suit can be maintained until after a compliance with such condition.</p> <p>3. Where the insured voluntarily absents himself in such a manner that he can not be found for the purpose of examination under oath, his absence will be tahen as equivalent to a refusal, where the company has in due time elected to require such examination and made all reasonable efforts to notify the insured of the requirement. In such a case neither the insured nor any one claiming under or through him can maintain an action on the policy until after the insured has complied with such requirement.</p>

<p>Action on bond. Before Judge Reid. City court of Atlanta. November 12, 1901.</p>

<p>1. If an appeal bond for the “ eventual condemnation-money ” contains language-limiting the liability of the parties thereto to a less sum, it is amendable so-as to make their liability fully as great as that which the law requires; but such a bond can not be so amended without the assent of the surety. The appeal bond filed in the present case was open to the objection indicated above, and required amendment.</p> <p>2. There was, however, no error on the part of the magistrate in refusing to allow the needed amendment to be made, it not appearing that the surety was present and offering to assent thereto. It follows that the superior court erred in sustaining the certiorari.</p>

<p>Equitable petition. Before Judge Littlejohn. Newton superior court. September term, 190Í.</p>

<p>Exceptions to auditor’s report. Before Judge Candler. Clayton superior court. December 30, 1901.</p>

<p>Appeal. Before Judge Evans. Tattnall superior court. December 4, 1901.</p>

<p>Action for damages. Before Judge Brinson. Richmond superior court. January 30, 1902.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county.. August 21, 1901.</p>

<p>Certiorari. Before Judge Seabrook. Chatham superior court. December 13, 1901.</p>

<p>Complaint. Before Judge Seabrook. Chatham superior court. January 16, 1902.</p>

<p>Equitable petition. Before Judge Seabrook. Effingham superior "court. January 16, 1902.</p>

<p>An application for letters of administration which fails to allege that the applicant is an heir at law of the decedent, or a creditor of the estate, or any other reason which, under the law, would entitle the applicant to the administra^ tion, should be dismissed upon motion made on that ground by caveators appearing at the hearing who are heirs at law of the decedent.</p>

<p>Equitable petition. Before Judge Janes. Haralson superior .court. July 18, 1901.</p>

<p>1. The trial judge did not err in instructing the jury to the following effect: If a promissory note, owned by a wife, is given in pledge to secure a debt which is in part that of the wife and in part that of her husband, and such parts are readily ascertainable, the pledge is a valid one as to the part of the debt which is due by the wife, and the pledgee is entitled, when due, to recover from the maker the amount expressed in the note.</p> <p>2. When the maker of such a note has in good faith paid it, he is entitled to the performance of the obligations which the payee undertook as the consideration for the same.</p> <p>3. Whether the pledgee, after collecting the note, has made proper application of the proceeds does not concern the maker.</p> <p>4. When it does not appear that a request to charge was made in writing, a complaint that the trial judge erred in refusing such request will not be considered.</p> <p>-5. The evidence sustained the verdict, and no error was committed in overruling the motion for a new trial.</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court. September 17, 1901.</p>

<p>Money rale. Before Judge Lumpkin. Fulton superior court. November 11,1901.</p>

<p>Exceptions to auditor’s report. Before Judge Candler. Clayton superior court. December 30, 1901.</p>

<p>Application for alimony. Before Judge Lumpkin. Fulton superior court. March 15, 1902.</p>

<p>Levy and claim. Before Judge Holden. Washington superior court. September 5, 1901.</p>

<p>Exceptions to auditor’s report. Before Judge Holden. Washington superior court. October 12, 1901.</p>

<p>1. In an action by the seller in a conditional sale of personal property, to recover possession of the property on the ground that the purchase-price has not been paid, the plaintiff may elect to take a verdict for damages alone, when it appears that a demand for the possession of the property was made prior to the bringing of the suit and the defendant refused to deliver possession of the same.</p> <p>2. The evidence, though conflicting, authorized the verdict, and there was no error requiring the granting of a new trial.</p>

<p>There being in this State no vendor’s lien for the price of property sold, a discharge in bankruptcy is a good defense to an action upon an ordinary unsecured debt contracted for the purchase of personalty, when the name of the holder of such debt was included in the schedule of the bankrupt’s creditors and such holder had due notice of the proceeding in bankruptcy. This is so though he may, during the pendency of such proceeding and before the discharge was granted, have sued out such an attachment for the purchase-money and caused the same to be levied upon the property he had sold the bankrupt.</p>

<p>Appeal. Before Judge Brinson. Richmond superior court. January 17, 1902.</p>

<p>1. An item in a will, which makes certain disposition of property “ if my wife' and myself should perish at sea in going to or returning from Germany,” the-will in a subsequent item making other disposition of the property should the-wife survive the testator, is contingent upon the happening of the event described.</p> <p>2. An item of a will, to the effect that, “ should my wife survive me, I devise and bequeath to her, during her natural life, [described property], and a.t her death, it is my will that said [property] shall vest in my nephew,” is contingent in whole upon the survival of the wife. The life-estate and the remainder both fail where the wife does not survive the testator.</p>

<p>Action for damages. Before Judge - Norwood. City court of Savannah. November 6, 1901.</p>

<p>Certiorari. Before Judge Seabrook. Chatham superior court. December 17, 1901.</p>

<p>Action for damages. Before Judge Nottingham. City court of Macon. November 2, 1901.</p>

<p>Action for damages. Before Judge Seabrook. Effingham superior court. November 12,1901.</p>

<p>Appeal. Before Judge Felton. Bibb superior court. December 2, 1901.</p>

<p>Action for damages. Before Judge Brinson. Warren superior court. August 31, 1901.</p>

<p>Action for damages. Before Judge Brinson. Taliaferro superior court. August 31, 1901.</p>

<p>Trover. Before Judge Proffitt. City court of Elberton. October 9,1901.</p>

<p>Trover. Before Judge Proffitt. City court of Elberton. October 9, 1901.</p>

<p>Complaint. Before Judge Toombs. City court of Washington. January 21, 1902.</p>

<p>Petition to remove cause. Before Judge Reagan. Monroe superior court. October 2, 1901.</p>