Volume 116 — Georgia Reports

<p>Action for breach of contract. Before Judge Hansell. Lowndes superior court. September 12, 1901.</p>

<p>1. A promissory note executed, by two persons, one signing at the bottom of the note and the other upon the back thereof, the latter not being the payee, and which is written, “I promise to pay,” is a joint and several note, and the person whose name appears upon the back of the note is, according to the facts connected with his undertaking, liable thereon either in the capacity of a coprincipal or in that of a surety.</p> <p>2. A judgment against one of two joint and several obligors which has never been satisfied is'no bar to a suit against the other.</p>

<p>1. The giving of a bond by a defendant in attachment to dissolve a garnishment does not have the effect of converting the attachment proceeding into a suit authorizing a judgment in personam against the debtor.</p> <p>2. A motion to dismiss an attachment against a non-resident, which has been executed by service of a summons of garnishment, upon the ground that no property or effects of or debt due the defendant within the jurisdiction of the court has been seized, is premature until the garnishee has filed an answer. And this is true notwithstanding a bond has been given to dissolve the garnishment.</p>

<p>Attachment and garnishment. Before Judge Beid. City court of Atlanta. December 17,1901.</p>

<p>Case. Before Judge Candler. Clayton superior court. December 9,1901.</p>

<p>Equitable petition. Before Judge Evans. Bulloch superior court. December 5, 1901.</p>

<p>Where an owner of goods delivers them to a railroad company to be shipped to a designated point, and a bill of lading is issued to the owner, in which he is named as both shipper and consignee, and which contains the words, “notify ” a third person, it is the duty of the railroad company, unless otherwise instructed by the owner, or by some holder of the bill of lading properly indorsed, to transport the goods, within a reasonable time, to the point of destination mentioned in the bill of lading. The company will not be relieved of liability to the owner for loss occasioned by a failure to comply with this obligation, by showing that the failure to deliver the goods at the point of destination within a reasonable time was due to instructions not to deliver, given by the person whom it was directed in the bill of lading to notify of the arrival of the goods at their destination, who at the time of such instructions was not in possession of the bill of lading nor entitled to its possession. Such peison could not acquire any title to the goods or right to control the shipment until he came into possession of the bill of lading properly indorsed by the consignor. ;</p>

<p>Action for damages. Before Judge Evans. Bulloch superior court. December 11, 1901.</p>

<p>Equitable petition. Before Judge Ealligant. Chatham superior court. July 17,1901.</p>

<p>Action for breach of warranty. Before Judge Felton. Houston superior court. October 8,1901.</p>

<p>1. A coroner is, under the Penal Code, § 1112, entitled to demand ten dollars from the county “ for summoning an inquest on a dead body and returning an inquisition,” in every case where an inquest is required under the Penal Code, § 1255, and where he has not already received more than fifteen hundred dollars as his fees during the year in which the inquest is taken.</p> <p>2. It is not essential that either the summons in an action brought by a coroner in a justice’s court for services rendered in holding inquests, or the account attached to such summons, should show under which particular class of the cases provided for in the Penal Code, § 1255, such inquests were held, nor that they were not held under section 1256 of that code.</p> <p>3. A coroner who himself summons a jury to hold an inquest is not entitled to any fee for such service.</p>

<p>Certiorari. • Before Judge Felton. Bibb superior court. January 9, 1902.</p>

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

<p>1. A purchase by an administrator at his own sale of any interest in the property renders the entire sale voidable at the instance of any one interested in the estate, who moves within a reasonable time to set aside the sale.</p> <p>2. A wife may be a bona fide purchaser without notice from her husband, where he is dealing with the property as his own. It follows that while a purchase by an administrator at his own sale is voidable at the election of heirs or creditors of the estate, a deed made by him conveying the property to his wife for a valuable consideration vests the title in her, if she had no knowledge of the manner in which he acquired his title.</p> <p>3. The guardian of a minor who is the distributee of an estate has no authority to consent that the administrator of the estate and others may purchase property of the estate at a given price ; and the fact that the administrator does so purchase the property and pays over to the guardian the part of the proceeds which would be due to the minor does not estop the latter from seeking to set aside the purchase by the administrator at his own sale, when the minor ' has had no settlement with the guardian and received no part of the proceeds of the sale so collected by him.</p> <p>4. A plea claiming a set-off under the act of December 21, 1897, which provides that the value of permanent improvements placed upon the land by one who is in bona fide possession under an adverse title may be set off against the value of the land, if such permanent improvements exceed the value of mesne profits, is fatally defective where the allegations do not set forth with certainty the value of the permanent improvements alleged to have been placed upon the property.</p> <p>5. When the defendant in a civil case introduces no evidence, he is entitled to the opening and conclusion of the argument.</p> <p>6. In the trial Of an action brought to set aside an administrator’s sale upon the ground that he was a purchaser at his own sale, where it is sought to es-top the plaintiff upon the ground that his guardian had' collected from the administrator the amount due him as his portion of the proceeds of the sale, and had paid over the same to him after his arrival at majority, after putting him in full possession of all the facts in reference to the sale, testimony by the guardian that at the time of the payment by him to his ward it was stipulated by the ward that the payment of the money should have no Other effect than to pass the fund into his -possession, and he should not be concluded thereby from afterwards electing to restore the money to the admin- ■ istrator and to set aside the sale, was relevant.</p>

<p>1. In order for a defendant in a civil action, brought in the city court of Washington, to obtain, as matter of right, a trial by jury, it is essentiaL that he make demand therefor “ on or before the call of the docket at the term to which the cause is returnable.” .</p> <p>2. Where a promissory note embracing no words of negotiability is payable to several named persons jointly, and one of them, without authority from his copayees so to do, undertakes to assign such note to a third person, the latter acquires no title to the interests of these copayees therein, and, if he collects the note, is. liable to any one of them for his proportion of the amount so-collected.</p>

<p>1. An interlocutory judgment of a trial judge upon an equitable petition, affirmed' by this court, is not res judicata unless it was based solely upon a question of law. If based upon law and evidence, it is not binding at the final trial unless the proof is then substantially the same as at the interlocutory hearing.</p> <p>2. Where, therefore, a father had in his will given all of his property to A in trust for B, the son 'of the testator, with certain limitations over, and after the probate of the will B filed an equitable petition against the trustee, alleging that B was sui juris and not within any of the classes for whom trusts can be created in this State, and praying that the trust be declared executed, the trustee removed, and the title to the property decreed to be in petitioner ; and the trustee answered that the son was of weak mind and of intemperate, wasteful, and profligate habits, illustrating by some of the acts of B, and B in an affidavit denied the allegations of the answer, and no evidence was introduced except the petition, answer, and reply affidavit; and upon these facts the judge decided that the trust was executed and removed the trustee, the judgment, being based upon a question of fact, was not final between the parties, although affirmed by this court.</p> <p>3. It not appearing that there has ever been a final trial before the jury, the case is still pending in the court for trial. If upon such trial the son should establish his contentions to the satisfaction of the jury, the trust will be finally set aside and annulled.</p> <p>4. The foregoing being true, there was no necessity for a motion to set aside the interlocutory judgment, and the court did not err in refusing to set it aside, although the reason given may have been erroneous.</p>

<p>1. Where a lessee of convicts, who has a right to sublet them to other persons, employs another to assist him in procuring some one to sublet them, and agrees in writing to pay to the person so employed, for his services, all excess over $14 per month for. each convict sublet, and, with the assistance of the intermediary, the original lessee makes a contract subletting the convicts at $16 per month, and subsequently, without the knowledge of the intermediary, releases the sublessee and voluntarily reduces the amount from $16 to $14, the intermediary is entitled to recover on his contract.</p> <p>2. The declaration in the present case, properly construed, constitutes a suit upon the contract for damages for the failure to enforce the sublease as made, and collect the full amount due thereon, and turn over to the plaintiff his. share of the proceeds.</p>

<p>1. When money due a laborer is exempt from seizure by the process of garnishment, it is protected whether in the hands of the employer or a third person, and can not be reached by a garnishment until it has passed, either actually or in legal contemplation, through the hands of the laborer.</p> <p>2. A deposit by a debtor in a bank to the account of his creditor of a sum of money due the latter will not constitute payment to the creditor, unless he consents to the deposit. When such a deposit is made without the creditor’s consent, the bank is merely the agent of the debtor to pay the money to the creditor.</p> <p>S. The judge erred in rendering a judgment finding the fund in dispute subject to the garnishment process.</p>

<p>Since ordinary hearsay testimony is not only inadmissible but wholly without probative value, its introduction without objection does not give it any weight or force whatever in establishing a fact.</p>

<p>Yalidation of bonds. Before Judge Roberts. Twiggs superior court. March 31, 1902.</p>

<p>1. When one has purchased from a railway company a commutation ticket at a price below the regular fare charged, by which the purchaser is entitled to a given number of trips between places named in such ticket, on conditions that no rebate on account of the non-use of the ticket from any cause will he allowed, and that the ticket shall he presented to the conductor on each trip, the presentation of the ticket is a condition precedent to the right of the purchaser to he transported on it; and in case of its loss, so that it can not he presented, there is no obligation on the part of the company to transport the purchaser except upon the payment of the regular fare ; and such purchaser is not entitled, because of the terms of the contract, either to have refunded to him the amount so paid for transportation, or to recover damages against the company for a failure to transport him without paying fare, during the time limit of the lost ticket, the number of trips called for thereby, or for a refusal to issue him a duplicate ticket.</p> <p>2. The trial judge erred in remanding the case to the justice’s court, and in not rendering a final judgment therein in favor of the plaintiff in certiorari.</p>

<p>Petition for injunction. Before Judge Bennet. Glynn superior court. April 12, 1902.</p>

<p>Complaint. Before Judge Proffitt. City court of Elberton. October 9, 1901.</p> <p>Suit was brought, April 19, 1901, on a promissory note under seal, “ for value received,” for $167.44 principal, due June 4,1884. The defendant pleadedThe note was never intended to be any evidence of a debt, but was given as a memorandum of the value of a quantity of lumber which defendant had taken from a sawmill business operated jointly by plaintiffs and defendant; and this note was to be taken in tbe final settlement of said business as so much of the defendant’s half of the sawmill output. Subsequently the-business was closed, and it appeared that defendant, after taking-off the amount of lumber represented by the note, was due other lumber amounting to $37, which is now. due. By amendment de-* fendant pleaded that he had fully paid off the note, by reason of the following transactions: In January, 1884, defendant and plaintiff agreed that plaintiff should locate his sawmill on defendant’s land, and defendant would furnish stocks laid down at the mill, and plaintiff would do the sawing and divide equally the sawmill output with defendant. He laid down stocks that plaintiff sawed into lumber, which, at the price agreed upon between them,, amounted to $715.80, one half of which belonged to defendant. He received from the sawmill lumber that at said price amounted to $181.75. Out of this he sold to L. M. Dadisman $13.13 worth, which was paid to plaintiff by Dadisman; and defendant advanced to plaintiff’s hands bacon worth $1.18. These two amounts being taken off left defendant’s lumber account $167.44, which was represented in liquidation by the note sued on. Mrs. Elizabeth Dye paid plaintiff $8.59, which should have been a further credit on the amount of lumber received by defendant, reducing it to $158.85, because Mrs. Dye received her lumber from the portion set aside to defendant and included in the total of $181.75. Plaintiff never paid defendant anything in settlement of his half interest in the sawmill business, except said $158.85 in lumber, and the sum of $105.49 paid to Allen and Starke, two hands engaged by defendant to deliver the stock at the sawmill, leaving a balance of $93.56 due defendant, for which, with interest from January 1, 1885, he prays judgment.</p> <p>The plaintiff demurred to the pleas, on the ground, among others, that the payments therein set up were barred by limitation. The demurrer was overruled, and the plaintiff excepted. . Evidence was introduced, and there was a finding in the defendant’s favor. The plaintiff’s motion for a new trial was overruled, and to this ruling also he excepted. This motion alleged, among other grounds, that the court erred in admitting, over objection that it was not competent to vary the contract by parol, the following testimony of defendant : The plaintiff asked me to sign the note for the amount of lumber I bad got from the sawmill oa account of my half interest. I did not like to do this, but he insisted on it; so I signed the note. It appeared that I had received so much lumber from the mill, and to keep matters straight until I could return, when we were to have a final settlement, I gave plaintiff this note. The consideration of the note was lumber.</p>

<p>Complaint. Before Judge Holden. Hart superior court. November 26, 1901.</p>

<p>Action on contract. Before Judge Holden. Oglethorpe superior court. January 3, 1902.</p>

<p>Action on contract. Before Judge Holden. Oglethorpe superior court. January 3, 1902.</p>

<p>1. Under the charter of the Georgia Railroad & Banking Company and the amendment thereto, it had lawful authority to lease to another its franchises as to the transportation of both freight and passengers ; and in such franchises were included all rights and privileges necessary to conducting the business for which the company was incorporated, among which was the right to maintain yards at terminal points for the manipulation of trains. Such franchises of the company passed by lease to the Louisville & Nashville Railroad Company and, in part, to the other defendants. The Louisville & Nashville Railroad Company had lawful power to lease part of the right of way of the Georgia Railroad & Banking Company, in Atlanta, to the Atlanta Belt Line Company, to be used as a terminal yard. ^The charter of the Atlanta Belt Line Company authorized it to accept from the Louisville & Nashville Railroad Company, as lessee of the Georgia Railroad & Banking Com- ' pany, the right to use such terminal yard.</p> <p>2. The Atlanta Belt Line Company had the statutory power to lease its road, property, and franchises to the Atlanta & West Point Railroad Company, and the latter company had, by its charter as amended, the right to accept such lease.</p> <p>3. The traffic contract entered into between the Atlanta and West Point Railroad Company and the Louisville & Nashville Railroad Company, under the terms of which each of these. companies acquired the right to use certain property of the otherdn the city of Atlanta, to facilitate the transportation of freight, was legal./</p> <p>4. Where a railroad, terminal yard is located and its construction authorized under statutory powers, if it be constructed and operated in a proper manner, it can not be adjudged a nuisance. Accordingly, injuries and inconveniences to persons residing near such a yard, from noises of locomotives, rumbling of cars, vibrations produced thereby, and smoke, cinders, soot, and the like, which result from the ordinary and necessary, and therefore proper, use and operation of such a yard, are not nuisances, but are the necessary concomitants of the franchise granted. The terminal yard, the operation of which is sought to be enjoined in this case, was located and its operation authorized under statutory powers.</p> <p>5. A railroad terminal yard, though authorized by statute, may become a nuisance by improper construction or by subsequent improper operation.</p> <p>6. Though the evidence in this case, both as to construction and operation, was conflicting, the granting generally of the injunction was erroneous; for, properly interpreting the language used in the opinion filed by the trial judge, in the light of the strong and decided preponderance of testimony showing that the construction of the yard upon a grade was proper, it is manifest that he did not grant the injunction solely because the yard was not laid out upon a level. This being so, and the effect of the injunction being to entirely prevent even the proper carrying on of a lawful business, instead of pointing out and restraining particular acts which, because unnecessary or unlawful, were nuisances, the judgment excepted to can not be upheld ; and moreover, save as to operations on the Sabbath, there was no evidence suffioiently clear and distinct to enable the court to designate any such acts as those just indicated and specifically enjoin the commission of the same.</p>

<p>Indictment for burglary. Before Judge Eoberts. Wilcox superior court. June 3, 1902.</p>

<p>Indictment for murder. Before Judge Reagan. Eayette superior court. May 28, 1902.</p>

Indictment for larceny. Before Judge Evans. Washington superior court. June 6, 1902. In the briefs were cited Penal Code, § 1033, and cases referred to thereunder.

<p>Indictment for robbery. Before Judge Harris. Carroll superior court. June 6,1902.</p>

<p>1. Where a dealer in one county receives from a person in another county an order for goods, and ships the same to an agent of the dealer in that county to be delivered to the person sending the order, and this is accordingly done, the sale is consummated in the latter county ; and this is so though the person ordering the goods pays for them in advance and his name is marked on the package containing them when the same is shipped to the dealer’s agent.</p> <p>2. Recalling a jury in a criminal case who had retired to consider of their verdict, and, in the absence of the accused and his couñsel and without their consent, giving a second charge, is cause for a new trial, even though this charge be the same, in substance, as that which has been delivered in the first instance.</p>

<p>Indictment for receiving stolen goods. Before Judge Holden. Madison superior court. May 27, 1902.</p>

<p>Indictment for larceny.' Béfore Judge Holden. Madison superior court. June 12, 1902.</p>

<p>Attachment for contempt. Dissolution of injunction. Before Judge Gober. Cherokee superior court. May 5, 17, 1902.</p>

<p>Action on bond. Before Judge Gober. Bartow superior court. December 2,1901..</p>

<p>1. Where a father in a letter to his sister-in-law requested that, in the event of his death, she would take and keep his child, and she, in response to such request, wrote him that in case of his death she would take the child and care for it until she could get it a good home, this correspondence did not, in the absence of an acceptance by the father of his sister-in-law’s offer, give her, after his death, the legal custody and control of the child.</p> <p>2. One who legally adopts a child has the right to its custody and control, and an agreement to relinquish the same must, in order to be enforceable, be clearly established by evidence and also be distinct and unequivocal in its terms. ■</p> <p>S. An answer to an offer will not amount to an acceptance, so as to result in a contract, unless it be unconditional and identical with the terms of the offer.</p> <p>4. While the judge upon the hearing of a writ of habeas corpus for the detention of a child is vested with a discretion in determining to whom its custody shall be given, such discretion should be governed by the rules of law and be exercised in favor of the party having the legal right, unless the evidence shows that the- interest and welfare of the child justify the judge in awarding its custody to another.</p> <p>5. Irrespective of other rulings complained of in the present bill of exceptions, the case, upon the facts disclosed by the record, is controlled by the legal propositions announced above, and applying the same results in a reversal of the judgment. Little, J., dissenting.</p>

<p>Habeas corpus — certiorari. Before Judge Roberts. Irwin superior court. March 11, 1902.</p>

Equitable petition. Before Judge Butt. Talbot superior court. September 16,1901. An equitable proceeding wa,s instituted by Martin against Thornton, of Muscogee county, and the Talbotton Railroad Company, whose principal office was in Talbot county.

<p>Action on accident-insurance policy. Before Judge Crisp. City court of Americus. January 4, 1902.</p>

<p>Motion to dismiss the writ of error; and motion to transfer.</p>

<p>Where a writ of prohibition has been applied for and granted in vacation, and the defendant takes no exception to the granting of the writ, and the case is returned to the superior court, and, the pleadings making a question of fact, the jury at the trial term return a verdict in favor of the defendant, a writ of error filed by the plaintiff to rulings of the judge pending the trial is an ordinary and not a “ fast” writ of error.</p>

<p>1. When two parties have entered into a written contract for the purchase and sale of goods, neither a countermand of the order for the shipment of the goods, nor a notice by the pui-chaser to the seller that he will not accept and receive them, is effectual to cause a rescission of the contract. Such a result can not be accomplished without the assent of the seller.</p> <p>2. Thó notice indicated above, under the common law, operates as a breach of the contract by the vendee, and in such a case the remedy of the vendor is in an action to l’ecover damages for such breach. Under the statute, the vendor, after the purchaser refuses to take axxd pay for the goods, may in an action recover the price of the goods, where it appears that, after default of the purchaser, he stored and retained them for such purchaser. Under the evidence the statutory remedy was not available to the plaintiff in the present case, and his only remedy was a suit to recover damages for the breach of the contract. His action, as brought, to recover the contract price of the goods, was not maintainable.</p>

<p>1. A contract whereby a father hires his minor sonto another, and releases him from all liability for “ damages for any injuries sustained ” by the son while in the employer’s service, will, when such contract can, under the facts of a case arising thereunder, be properly treated as valid and binding, defeat a recovery by the father for the loss of the value of the son’s services during minority, even where such loss is occasioned by the homicide of the minor.</p> <p>2. Such a contract, though made with a railway company, is valid and binding to the extent of exempting the latter from liability for negligent acts of itself or servants, which are not criminal.</p>

<p>Case. Before Judge Eve. City court of Richmond county. January 15, 1902.</p>

<p>Case. Before Judge Nottingham. City court of Macon. October 17, 1901.</p>

<p>X. Where a motion for new trial and the rule nisi thereon have been served! upon the respondent, and an amendment thereto is afterward regularly filed and approved by the trial judge, who overrules the amended motion upon its. merits, this court can not refuse to consider the amendment because it was. not served upon the respondent.'</p> <p>2. Where the condition of a set of harness is the- subject of inquiry, it is error to overrule a proper objection to evidence as to the condition of a set of harness which is not identified as'the one under investigation.</p> <p>3. It is error for a trial judge -to instruct the jury that given facts would constitute negligence, when the facts are not such as are made by law to constitute negligence per se.</p> <p>4. It is also error to charge that, where an employer has agreed to furnish an employee a harness sufficiently strong to enable him to control a certain horse, ‘the employer is thereby made an insurer of the quality of the harness furnished, and that he is not in the exercise of ordinary care unless he makes his assurance good.</p> <p>5. Other assignments of error are covered by the opinion.</p>

<p>1. A partnership is dissolved hy the death o£ one partner, and it is not necessary to give notice of the dissolution to third persons.</p> <p>2. The surviving partner or partners have the right, under the law, to wind up the partnership affairs. If in so doing one partner, acting as a surviving partner and traveling salesman, sells to a third person goods which have already been sold by a resident surviving partner and which for this reason can not be delivered, neither the partnership assets nor the estate of the deceased partner can be held liable for the failure to deliver the goods to the purchaser from the traveling partner.</p> <p>3. A' decision of this court, rendered upon one state of facts, is not res judicata upon another trial of the same case when a new issue has been introduced and the evidence is essentially different.</p> <p>4 (a) Where the surviving partners delegate to one of their number the right to wind up the affairs of the partnership, the managing partner can not, without, further authority, bind one of the others by a contract which is of such nature that the partnership assets are not bound.</p> <p>(6) Where such managing partner sends written authority to an agent to sell certain goods of the partnership to a named person, and the sale is accordingly made, the managing partner is personally liable to the purchaser for a breach of the contract necessitated by his having, without revocation of his agent’s authority and without notice to such agent or-the purchaser, sold and delivered the goods to another prior'to the sale by the agent but after authorizing such sale.</p> <p>(c) Where such agent was also a surviving partner, he would be liable or not according to whether he made the sale as agent or professed to act in his capacity as surviving partner, the purchaser knowing nothing of the delegation of the powers of the survivors to one of their number.</p> <p>5. “ An objection made generally to the introduction of specified evidence as a. whole is not well taken when some of it is admissible.”</p>

<p>Certiorari. Before Judge Holden. Hart superior court. November 29, 1901.</p> <p>In a justice’s court suit was brought upon a promissory note, a copy of which was attached to the summons, against Baker as principal, and Weldon and another as sureties. The note contained ■a waiver, by the principal and the sureties, of any and all homestead or exemption rights. The sureties pleaded, “ that said plain- • tiff charged, demanded, and collected from defendant J. W. Baker interest at a greater rate than 13^>, all of said sums charged, demanded, and collected by plaintiff from defendants exceeding 8^> being usury and contrary to law; that said defendants signed said note without knowledge in any way that a greater rate of interest than 8fo had been charged, demanded, or collected by plaintiff from •defendant, thereby increasing defendants’ liability as securities.” The plea did not otherwise indicate that the sureties were setting up that they were not bound because the waiver of homestead and exemption was rendered void by the concealed usury in the note. The evidence in the record tends to show that one of the sureties was ignorant, at the time of signing, of the fact of usury charged in the note, and that the other understood that 12 per cent, was ■charged. A verdict for the plaintiff was rendered. In a petition for certiorari the sureties averred that the verdict was contrary to law and evidence. The certiorari was overruled, and the sureties excepted.</p>

<p>1. When, in purging the jury in a criminal case, the accused is given a list of the petit jurors, and the indictment on which appear the names of the grand jurors, and from-these papers it appears that one of the jurors served on the " grand jury which -returned the indictment, a failure to object to such juror amounts to a waiver of his disqualification.</p> <p>2. There was no material error in the charges complained of, and the evidence authorized the verdict.</p>

<p>Indictment for assault and battery. Before Judge Fite. Catoosa superior court. April 7, 1902.</p>

<p>Indictment for murder. Before Judge Roberts. Johnson superior court. June 17, 1902.</p>

<p>Where general presentments are signed and returned into court by the grand jurors who were impaneled at the opening of the term of court and are spread upon the minutes without objection, the validity of a recommendation which is embodied in such presentments and which is a proper subject-matter thereof can not be afterward attacked on the ground that, at the time of the grand jury’s deliberations in regard to such recommendation, some of the regular grand jurors were absent and tales grand jurors participated in the vote ; which was taken thereon.</p>

<p>' Case. Before Judge Gober. Cobb superior court. December 23, 1901.</p>

<p>Equitable petition. Before Judge Janes. Douglas superior ■court. November 28, 1901.</p>

<p>1. There was evidence which supported the allegations in the petition, and the verdict which was rendered. While such evidence was conflicting on some material points, it can not be said that the verdict was contrary either to law or the evidence.</p> <p>9. The question whether title to the cotton, which was the subject-matter of the action in this case, passed to the testator of the defendant in error, by delivery of the warehouse receipts to him, was adjudicated by this court in the case of Zellnerv. Mobley, 84 Ga. 746. Hence, the court did not err in refusing to charge the jury that the title to the cotton would not pass to the pledgee on the transfer of a warehouse receipt representing such cotton, at a named date.</p> <p>3. Refusal to admit evidence of a witness as to a point in issue is not cause for a new trial, when it appears that the same witness was allowed to testify to practically the same facts in other language.</p>

<p>Equitable petition. Before Judge Hart. Baldwin superior court. January 14, 1902.</p>

<p>Equitable petition. Before Judge Hart. Laurens superior court. January 27, 1902.</p>

<p>Action on bond. Before Judge Felton. Dooly superior court. ■September 9, 1901.</p>

<p>Certiorari. Before Judge Littlejohn. -Sumter superior court. January 1,1902.</p> <p>Dome was sued in a city court on an open account. He pleaded that the plaintiff had agreed to accept forty per cent, in full satisfaction of all his indebtedness to plaintiff, which sum he had paid. He offered an amendment to his plea, which the court would not allow; and in a petition for certiorari he assigned this ruling as error. The certiorari was sustained, and the plaintiff excepted. Th e amendment alleged, in brief, that Dome was adjudicated a bankrupt in the U. S. court, after which adjudication he tendered to his creditors a composition of his debts, to pay the unsecured creditors 33 1/3 per cent., which composition was accepted by the creditors and approved by the bankrupt court; that all those amounts have been fully paid off and discharged according to the térms of the composition and approval of the court, which composition embraced a majority in number and amount of all the creditors whose claims had been proved and been allowed by the bankrupt court, and otherwise complied with all the requisites in proceedings for composition to his creditors Under the bankruptcy act of 1898; that after the approval of said composition by the court, and the payment of said amounts according to the terms of said composition, and all court costs, the referee made his final return, and the bankruptcy case against defendant was finally disposed of and entered closed on the docket of the bankrupt court, and thereby defendant was discharged of all of his debts provable in bankruptcy, and from all debts except such (if any) as would not be affected by the discharge ; that the debt sued on was in existence at the time he was adjudicated a bankrupt, was an open account for goods and merchandise, and was provable in bankruptcy, and the plaintiff had notice that he was in bankruptcy. The record does not show the grounds of demurrer, but in the brief for the plaintiff it was contended that the amendment was insufficient in law, as it did not allege that the plaintiff proved his debt in the bankrupt court; nor that the terms of composition were offered to the creditors after the defendant had been examined in open court or at a meeting of his creditors; nor that plaintiff was one of the creditors who accepted the terms of composition offered; nor that plaintiff was paid by the trustee of the bankrupt the amount allowed to the creditors by the terms of the composition; nor that the defendant was discharged by the court.</p>

<p>Levy and claim. Before Judge Littlejohn. . Schley superior court. December 19,1901.</p>

<p>Levy and claim. Before Judge Sparks. City court of Brunswick. December 18, 1901. °</p> <p>Citations from tbe briefs: Civil Code, §§2930, 2931; 57 Ga.’ 204; 78/574; 99/259; 101/329; 103/181; 84/747; 96/81; 138 U. S. 122; 3 Pom. Eq. Jur. §§1236, 1288; 28 Am. & Eng. Ene. L. 672, 680, 683, 684.</p>

<p>• Injunction. Before Judge Bennet. Ware superior court. April 21, 1902.</p>

<p>Injunction. Before Judge Bennet. Glynn superior court. June 13, 1902.</p>

<p>1. A misjoinder of parties plaintiff results from joining with, one having a right to maintain an equitable proceeding to enjoin a threatened breach of contract persons between whom and the defendant to the action there is, with respect to the subject-matter thereof, no privity of contract, and who for that reason have no concern in the outcome of the litigation.</p> <p>2. As the real party at interest in the present case failed to establish by proof any contractual relation with the defendant, an interlocutory injunction was properly refused.</p>

<p>There was no material error in rejecting or in admitting testimony, hut the-error committed in directing a verdict requires a new trial. .</p>

<p>1. "When a plea to an action has been duly and regularly filed, or an amendment thereto allowed and filed, such plea or amendment becomes a part of the record of the case, and, although afterwards a demurrer to the plea as amended is sustained, and the same stricken, if it besought to review the ruling striking the same, it is not necessary that such plea be set out in the bill of exceptions. It can properly be incorporated as a part of the record in the transcript which is made and certified by the clerk. The motion to dismiss is overruled.</p> <p>2. In an action in which only the establishment of a special lien on specific property is sought, and no judgment in personam is prayed against the defendant, a plea to the effect that the defendant has been adjudicated a bankrupt presents no defense to the action.</p> <p>3. The taking of interest at the highest legal rate, in advance, by way of discount on short loans, in the ordinary course of business, is not usurious; but a reservation of interest in advance, in an ordinary transaction of lending and borrowing money, for a period of five years, is usurious when the amount ■ reserved and the amount contracted to be paid aggregate a sum which is in excess of the highest legal rate for the term of the loan.</p> <p>4. The statements of fact made in the plea, which by the demurrer are admitted to be true, are sufficient to make a good plea of usury. The trial judge, therefore, erred in sustaining a demurrer to this part of the plea, and in directing a verdict for the plaintiff.</p>

<p>1. When a special term of a superior court is convened for the purpose of disposing of any and all business before the court, and the grand jury which served at the preceding regular term is -required to be in attendance at such special term, such grand jury has authority to m'ake a recommendation, under the provisions of the Political Code, §573 et seq., that the alternative road law be adopted in the county.</p> <p>2. The alternative road law as contained in the code sections above referred to was not repealed by the act of 1896, providing an additional scheme for working the roads in the different counties, which might be adopted by a popular vote, nor by the act of 1898 which was amendatory of the act just referred to.</p> <p>3. An act of the General Assembly which operates uniformly upon all persons within a designated class is a general law and not in violation of that provision of the constitution of this State which requires that all laws of ageneral nature shall have uniform operation throughout the limits of the State, unless it is manifest that the classification is arbitrary or unreasonable.</p> <p>4. An act dividing the people of the State into two general classes, one embracing all those residing within the limits of incorporated cities and towns, and the other all those residing without such limits, and making provision for working the roads by the latter class which is different from that prescribed by law as the method to be followed by the former, does not make an arbitrary or unreasonable classification.</p>

<p>Complaint for land. Before Judge Evans. Tattnall superior court. October 9,1901.</p>

<p>Action for false imprisonment. Before Judge Norwood. City court of Savannah. January 13,1902.</p>

<p>Equitable petition. Before Judge Barrow. Chatham superior court. January 24, 1902.</p>

<p>1. A paymaster of a railroad company, traveling upon business of the company from station to station on the line of the company, and stopping between stations for the purpose of paying .off employees of .the company wherever they may be, is not, while so doing, a “ passenger ” within the meaning of a clause in a policy of accident insurance granting double indemnity to the insured if injured while riding as a passenger on a passenger-car using steam as a motive power.</p> <p>2. A coach specially equipped and used as a pay-car, and not a vehicle for the transportation of passengers, is not, in contemplation of the contract alluded to in the preceding headnote, a passenger-car; and this is so although it had formerly been used as a passenger-car and was capable of beingsoused again.</p>

Indictment for murder. Before Judge Estes. Habersham superior court. May 9, 1902. Wilbanks was shot and killed by Palmour at night, at Palmour’shouse. The testimony in the record tends to support the theory of murder.

<p>Conviction of shooting at another. Before Judge Littlejohn. Sumter superior court. May 9, 1902.</p>

<p>Conviction of manslaughter. Before Judge Littlejohn. Dooly superior court. May 27,1902.</p>

<p>A sheriff’s sale made after the death of the defendant in execution, under an execution issued in his lifetime, will not be set aside, though at the time of the sale no legal representative had been appointed upon the estate of the decedent, and there were minor heirs of the intestate, and debts due by the estate of higher dignity than the lien of the execution under which the sale was had.</p>

<p>1. A lessor of real property has no right of action against a third party for the-use and occupation of a portion of the leased premises during the period of' the lease and at a time when the lessee was entitled to the possession of the-property. Where there is no injury to the freehold, the right of action, if any,, is in the lessee.</p> <p>2. A declaratory action is not maintainable in this State. Accordingly, where a plaintiff files a petition alleging that the defendant is in possession of certain land, and setting up facts which plaintiff claims show that he has title and that the defendanthas no title or right of possession, and invoking no injunction, judgment, or decree save that the court decide the law and declare the legal rights of the parties, a demurrer to such petition should he sustained.</p>

<p>Equitable petition. Before Judge Butt. Talbot superior court. September 19, 1901.</p>

<p>Exceptions to auditor’s report. Before Judge Butt. Talbot superior court. September 11, 1901..</p>

<p>Case. Before Judge Sheffield. Quitman superior court. December 17, 1901.</p>

<p>1. A sale of real estate at public outcry by a mortgagee, under a power in the mortgage authorizing him to sell at public or private sale, is not binding upon the purchaser or the mortgagee unless a memorandum is made as prescribed by the statute of frauds.</p> <p>2. While such a sale is, for some purposes, equivalent to a sale under a foreclosure of the mortgage by a court of competent jurisdiction, it is not such a.. judicial sale, under the code, as not to require such a memorandum.</p>

<p>Petition for injunction. Before Judge Spence. Mitchell superior court. April 1, 1902.</p>

<p>1. Except in a case falling under the provisions of the act of December 19,1899, providing for abating or enjoining “ any place commonly-known as a ‘blind tiger,’ ” equity will not enjoin the maintenance of a public nuisance in a given municipality, at the instance of one who suffers no injury or inconvenience therefrom save such as is common to all residents thereof; and the more especially is this true if the acts alleged to constitute such nuisance be indictable.</p> <p>2. A dispensary where intoxicating liquors are openly and publicly sold in a town, in good faith, under color of lawful authority, though in fact operated in violation of law, is not “what is commonly known as a blind tiger,” subject to be abated or enjoined under the provisions of the act of December 19, 1899.</p> <p>Xittle and Cobb, JJ., dissenting. A dispensary for the sale of intoxicating liquors, established and operated under an ordinance of a municipal corporation, which is void for want of authority in the municipal authorities to pass such an ordinance, is, within the meaning of the act of December 19, 1899 (Acts 1899, p. 78, Van Epps’ Code Supp. §6654 et seq.), a “blind tiger” and a public nuisance, and its operation should be enjoined under the provisions of that act.</p>

<p>Money rule. Before Judge Boberts. Montgomery superior court. November 8, 1901.</p>

<p>. Case. Before Judge Bennet. Ware superior court. September 10,1901.</p>

<p>1. Though land bought with the proceeds of ahomestead is homestead property, and ordinarily stands, as to exemptions from sale, on the same footing as the , original homestead, this is not true as against the rights of one who bona fide and for value acquires a lien on such land, without knowledge, either actual or constructive, of its homestead character.</p> <p>2. Applying the rule above announced to the conflicting evidence in the present case, and giving to the defendant in error the benefit of that view of the same most favorable to it, as it was the right of the judge to do, there was no abuse of discretion in refusing to grant the interlocutory injunction.</p> <p>3. The ruling made in Broome v. Davis, 87 Ga. 584, is not in conflict with this ruling.</p>

<p>Petition. Before Judge Lumpkin. Eulton superior court. January 7, 1902.</p>

<p>Action for malicious prosecution. Before Judge Candler. DeKalb superior court. November 6, 1901.</p>

<p>Injunction and receiver. Before Judge Candler. Newton superior court. June 20, 1902.</p>

<p>Action for trespass. Before Judge Brinson. Richmond superior ■court. October 23, 1901.</p>

<p>Motion to set aside judgment. Before Judge Norwood. City court of Savannah. July 22,1901.</p>

<p>Petition for injunction. Before Judge Barrow. Chatham superior court. April 1, 1902.</p>

<p>Receiver. Before Judge Barrow. Chatham superior court. April 11, 1902.</p>

<p>Complaint. Before Judge Nottingham.. City court of Macon. October 15, 1901.</p>

<p>Action on bond. Before Judge Felton. Crawford superior court. October 22, 1901.</p>

<p>1. The Federal court which administered the assets of the Central Railroad & Banking Company through a receivership thereof did not treat its lease of the property of the Southwestern Railroad Company as being of force and effectual during the entire period of the litigation.</p> <p>2. The lease contract of 1869 between the Central Railroad & Banking Company and the Southwestern Railroad Company was, in effect, practically abrogated during at least a portion of the time that litigation was in progress.</p> <p>3. If the stockholders of the latter company were in their own right entitled to any portion of the fund paid by the Central of Georgia Railway Company to it in settlement of its demand for “ back rentals,” no stockholder’s claim on this account in any event exceeded five per cent, upon the amount of his capital stock, and a stockholder who received this much of that fund can not maintain against his company an action for more of it.</p> <p>4. Even if a stockholder who had received none of this fund had a right of action against the company, the same became barred under the four '■''ears statute of limitations.</p>

<p>Case. Before Judge Nottingham. City court of Macon. November 25, 1901.</p>

<p>Case. Before Judge Nottingham. City court of Macon. November 20, 1901.</p>

<p>Equitable petition. Before E. H. Colley, judge pro hac vice. Taliaferro superior court. January 24, 1902.</p>

<p>Case. Before Judge Nottingham. City court of Macon. January 8, 1902.</p>

<p>Validation of bonds. Before Judge Brinson. Burke superior court. April 26, 1902.</p>

<p>Case. Before Judge Eeid. City court of Atlanta. March 18, 1901.</p>

<p>Action for damages. Before Judge Proffitt. City court of Elberton. February 12, 1902.</p>

<p>Rule to distribute money. Before Judge Holden. Hancock superior court. February 13, 1902.</p>

<p>Trover. Before Judge Holden. Lincoln superior court. April term, 1902.</p>

<p>A 'written conveyance, under seal, from the owner of land to S. & E., conveying a strip of land to the latter for the purpose of building a spur-track from the main stein of a railroad to a stone quarry, the stone and the right to mine it having been previously purchased from another by S. & E., and reserving the right to re-enter when S. & E. “get through using said road in working quarry, ’ ’ conveyed an’ easement which is appurtenant to the dominant estate of S. & E. and which passed to their successors in title in the quarry although the conveyance of the strip contained no words of assignability. •</p>

<p>Trover. Before Judge Holden. Taliaferro superior court. July I, 1902.</p>

<p>An entry made by a proper officer npon an execution issued from a judgment, unless recorded upon the execution docket of the court from which the execution issued, will not, even as between the parties to the judgment, arrest the running of the dormancy statute.</p>

<p>Complaint for land. Before Judge Russell. Jackson superior-court. Janirary 14, 1902.</p>

<p>Certiorari. Before Judge Russell. Gwinnett superior court. March term, 1902.</p>

<p>Complaint. Before Judge Gober. Cobb superior court. April •7,1902.</p>

<p>1. A suit brought upon the petition of a number of individuals describing themselves as citizens of a given county and residents of a named city, and as “mayor and councilmen” of such city, is the suit of the individuals named in the petition, and the words describing the plaintiffs as “mayor and councilmen” of the city may be properly stricken as surplusage.</p> <p>2. The remedy provided in the act of December 19, 1899, for abating by injunction as a public nuisance a “blind tiger,” is cumulative of other remedies provided in the law of this State, and.may be made available even in a case where the other remedies are themselves complete and adequate.</p>

<p>Injunction. Before Judge Eite. Bartow superior court. August 20,1902.</p>

<p>Injunction. Before Judge Littlejohn. Dooly superior court. July 14, 1902.</p>

<p>1. It is not necessary to the validity of the assignee’s title that the vendor, holding a conditional bill of sale which secures a purchase-money note, shall indorse the note or guarantee its payment, when he assigns in writing to such assignee the note.and the personal property described therein and all of his rights under the entire paper, which paper covers the note and the security.</p> <p>2. The assignment and transfer of a conditional bill of sale need not be recorded in order to constitute a good muniment of title as against an innocent third person purchasing the personal property from the original vendor.</p> <p>3. Where a direct bill of exceptions is taken to the direction of a verdict, the propriety of such direction can not be dealt with unless the direction is complained of in the assignments of error and the error therein is specified.</p>

<p>Complaint. Before Judge Holden. Hancock superior' court. April 7, 1902.</p>

<p>1. A default will not be opened at the instance of a defendant unless he shows a “reasonable excuse” for failing to file an answer at the first term, that is, such an excuse as will justify the exercise in his favor of a sound legal discretion.</p> <p>2. An order passed by the superior court in which a petition is filed, allowing the defendant until a date after the adjournment of the appearance term within which to file an answer, will not, when the plaintiff did not consent to the passage of such order, afford him such an excuse as is referred to in tbe preceding note. The court had no power to pass such an order, and the defendant was chargeable with knowledge of its want of authority.</p>

<p>1. When a person holds possession of lands under a contract of purchase, he-can not be dispossessed by summary proceedings against him as a tenant.</p> <p>2. Where an agreement was made for the sale of land and it was stipulated that-if the vendee did not comply with its terms he was to pay rent, and a tender . subsequently made by the vendee was rejected by the vendor on the grounds that it did not comply with the latter’s erroneous construction of the contract and that he was in no position to make a deed, because of a security deed already made by him to a third party, the fact that the amount tendered may not have been the exact.sum required under the contract did notchangethe relation of the parties from that of vendor and vendee to that of landlord and tenant.</p> <p>3. No material error was committed with regard to the questions which are- . indicated above and which are the controlling questions in the case.</p>

<p>Action for damages. Before Judge Russell. Franklin superior court. March 28, 1902.</p>

<p>Complaint. Before Judge Russell. Gwinnett superior court. April 10, 1902.</p>

<p>Action for damages. Before Judge Russell. Gwinnett superior court. August 2, 1902.</p>

<p>Complaint for land. Before Judge Estes. Habersham superior court. March 7, 1902.</p>

<p>Motion for new trial. Before Judge Estes. Lumpkin superior-court. January 31,1902.</p>

<p>Action for damages. Before Judge Estes. Lumpkin superior court. April 26, 1902.</p>

<p>Certiorari. Before Judge Estes. Dawson superior court. August 13, 1902.</p>

<p>Equitable petition. Before Judge Estes. Hall superior court. August 30, 1902.</p> <p>The petition alleges, in brief, that the plaintiff, for the purpose of generating electric power, by means of water-power; for the operation of its railway, has bought and is absolute owner of a certain acre of land on the west bank of the Chestatee river, in lot number 279 (described), with the right to erect on and across the river, adjacent to said acre and attaching to it, a dam of whatever kind and height desired, with all necessary rights and privileges for doing so also lot 160 (described), on the opposite side of the river, together with the right to erect and maintain thereon a dam across the river,, and to back water from that dam upon the remaining part of lot 279 and on lot 278, together with other adjacent lands lying above and on the river, with such other privileges as are necessary to the enjoyment of the water-power on said land. Said river is not a navigable stream. The defendant is in possession of and claims to own a part of lot number 153, on the east side of said river and extending on the north to or near the south line of said lot number 160, and even with or a few feet above the southeast corner of' said one acre of lot 279; and he has for some years maintained on said river a “wing” dam, about three feet in height, extending from the east bank, on said lot number 153, up the river at an angle of about forty-five degrees to the thread or center of the stream, at or nearly on a line with the northern boundary of lot 153. He has recently, since plaintiff became the owner of the property described,, and without the consent of the plaintiff, entered on said one acre, belonging to the plaintiff, and in that part of the river west of the-thread or center of the stream, and placed there obstructions of' timber, rock, and earth, making an extension of said wing dam entirely across the river, of a height of four or five feet, and has raised said dam on the east side of the river from its former height of about three feet to a height of about five feet, and by threats of violence prevents the removal of said obstructions. These obstructions and defendant’s dam, when allowed to fill with water, back the water of the river, to a depth of about eighteen inches, on plaintiff’s shoal and dam site, which are at a distance of about five hundred feet-from defendant’s dam, making if very expensive and impracticable, if not impossible, to put in and lay the foundation for plaintiff’s dam, and resulting in irreparable damage to plaintiff. Plaintiff is advised a.nd believes that the defendant has no' right, by grant, easement, or otherwise, to maintain any obstructions on said premises; and plaintiff bought the premises without notice of any claim of right by defendant. The maintenance of the wing dam by defendant at the height to which he has recently raised it, or at any other height sufficient to back water on plaintiff’s land, even after-the completion of its dam, will prevent the draining of water from -plaintiff’s water-wheels back into the river, and result in continuing and permanent injury to said property, for which plaintiff could not be equitably and reasonably compensated, etc. The petition prays that the defendant be enjoined from backing water by means of a dam or other obstructions upon plaintiff’s lands or shoals, and for other relief.</p> <p>In the defendant’s answer the. allegations of the petition as to the plaintiff’s rights in the premises are denied, and it is alleged that the defendant has a prescriptive right to maintain his dam as it stands; that at the time plaintiff claims to have purchased the land, defendant was in actual possession of said lot number 160, and he and those under whom he claims had been in possession of it for more than twenty years; that about the year 1860 Mathew Armstrong, who then owned the property on the east side of the river, on which defendant’s mill and dam are located, built said mill and erected a dam about half way across the river; that at that time one Gowdy owned the land on the west bank, now claimed by the plaintiff, and he refused to allow Armstrong to build his dam beyond the center of the river, but in three or four years Gowdy sold the land to Berry Mooney, who took possession of it, and Armstrong then made a contract with Mooney by which he was allowed to extend said dam entirely across the river and join it to the west bank on Mooney’s land, and at the point where defendant’s dam now is; that Armstrong paid Mooney for this privilege some forty years ago; and defendant and those under whom he claims, including Armstrong, have in good faith claimed the right to keep up the dam ever since, and have kept it up entirely across the riyer, and joined to the west bank at said point, and at about the height of the one defendant now has; and that the persons owning and controlling the land on the west side of the river at that point have never disputed the right of the defendant, and of those under whom he claims, to maintain said dam; that he recently rebuilt the dam in the same place and to about the same height as'the old one; and that the new dambacks the water about the same distance up the river that the old dam did, and does not back water to plaintiff’s dam. At the trial there was evidence in'support of these allegations of fact.</p> <p>The grounds of the motion for a new trial which relate to the charge of the court are that the court erred : (a) In failing, while stating to the jury the contentions of the parties, and after stating that the defendant claimed a title, to the property by prescription, to state that the defendant claimed an easement in plaintiff’s land by having maintained a dam on its land by himself and those under whom he claims, for twenty years. (&) In refusing to charge the jury, on request of defendant, that the deed of W. M. Smith to plaintiff, to. the one acre described in the petition, only conveyed the land to the water’s edge, and did not convey the river bed. (a) After explaining to the jury what constitutes prescriptive title, in failing to charge the jury, in this connection, that an easement such as to maintain a dam on another’s land could be prescribed, as requestéd by defendant, (d) In charging that permissive possession can never ripen into a prescription, until he first surrenders the possession and goes out of possession, and turns it over to the other party and claims it adversely, (e) In refusing a request to charge the jury that if defendant, or any of those under whom he claims, had kept and maintained a dam there attached to the west hank, and had kept it there continuously for as much as twenty years, then that would give them an easement in plaintiff’s lauds for that purpose, and the defendant would have a right to keep and' maintain said dam. (/) In charging the jury that, in order for defendant to get a title to an easement such as to maintain a dam by prescription, he must have kept the dam at a certain place and “just so high and no higher” for over twenty years. (.g) In charging the jury that, in making out a prescriptive title, an innocent purchaser can not tack to his own the possession of a grantor whose possession originated in fraud; as it was not claimed that the possession of any one under' whom the defendant claims originated In fraud.' (h) In charging the jury: “ If defendant claims a right to a dam, you must he satisfied' from the evidence in the case that he claimed a dam at a certain place, of a certain height and with certain privileges, for full'twenty years.” (i) In failing to charge, as requestéd, that the défendant could set up any parol license, given" to any one under whom he claims, and avail himself of it, if those undér whom he claims had ácted on said license, and had spent money or done any work or put in machinery there after said parol license had been granted and on account thereof.</p>

<p>1. One who entrusts personal property to an agent to he cared for, giving such: agent authority to use it, may, upon the refusal of the agent to return the property after demand, maintain proceedings hy possessory warrant to recover his possession. Little, J., dissenting.</p> <p>2. Under the provisions of the code the judge of the superior court, in passing: upon a certiorari from the decision of a justice of the peace in a possessorywarrant case, may in his discretion make a final disposition of the case without sending it hack for a new trial.</p>

<p>Action for damages. Before Judge Gober. Pickens superior -court. July 21, 1902.</p>

<p>Equitable petition. Before Judge Gober. Cobb superior court. May 5, 1902.</p>

<p>. Although it appeared that the defendant company failed in its duty to furnish to its employees reasonably safe machinery, yet as the plaintiff’s deceased husband, wlio was a servant of the company, knew of the defect in the machinery which she alleged was the proximate cause of his death, but nevertheless voluntarily assumed the risk of being injured thereby, a -verdict in her favor was wholly unwarranted.</p>

<p>Ejectment. Before Judge Eite. Bartow superior court. January 30, 1902.</p>

<p>1. Where a written contract for the sale of a machine specified the warranties undertaken by the seller and stipulated that no warranties other than those expressly stated in the contract should be binding on him, he was not responsible for an additional warranty subsequently made by his agent; and upon the trial of an action brought by the seller against the purchaser, for the price of the machine, evidence of such warranty made by the agent was inadmissible.</p> <p>2. Where such a contract stipulated that: “ If upon one day’s trial the machine should not work well, the purchaser shall give immediate notice to [the seller and his agent], and allow time to send a person to put it in order. If it can not then be'made to work well, the purchaser shall return it at once to the agent of whom he received it, and all cash and notes received in settlement. will be refunded. , . Failure to . .. return the machine as agreed shall be deemed an acceptance of the machine by the purchaser ” : Held, that upon the failure of the machine to work well and failure of the seller, upon proper notice, to have it put in order, a notice by the purchaser to the agent of the seller that the machine was held subject to the seller’s order was not a compliance with the terms-of the contract, and did not relieve the purchaser from liability for the price of the machine, when it did not appear that the seller or his agent ever took possession or control of the machine in pursuance of such notice.</p>

<p>Action for damages. Before Judge Fite. Gordon superior court-May 8, 1902.</p>

<p>Action on contract. Before Judge Fite. Whitfield superior ■court. June 9, 1902.</p>

<p>Where a plaintiff relies for his right of action and recovery upon the provisions of a statute of another State, that statute must he pleaded.</p>

<p>The execution and delivery of an instrument in writing, by which a purchaser of land, sold under a tax execution, released and quitclaimed to one who claimed to be its owner, made within the period in which the law gives to the owner a right to redeem the same, the consideration for which was the amount of the tax with interest and penalty as fixed by law, created no new title in the owner, passed no other interest of the maker than that acquired under the tax sale; and did not estop such maker from thereafter setting up, as against the grantee, a claim to the land, acquired subsequently to the execution of the quitclaim deed.</p>

<p>1. A person against whom no charge of wrong-doing is made, and who is not. shown to have any interest in the outcome of a case, can not properly be joined as a codefendant with another who is alleged to have perpetrated a fraud upon the plaintiff.</p> <p>2. He who seeks equitable'relief must come into court with clean hands, and one who confesses to have-voluntarily conspired with another to defeat a creditor of the latter can ’not be heard to complain that his partner in the fraudulent enterprise did not keep faith with him but victimized him also.</p>

<p>The purchaser'of land at a tax sale is not entitled to be placed in possession-until after the time for redemption has expired.</p>

<p>Action for damages. Before Judge Henry. Gordon superior court. July 22, 1902.</p>

<p>Petition for alimony. Before Judge Pite. Gordon superior court. July 24, 1902.</p>

<p>1. Where in a quo warranto case the trial judge rendered a judgment against the petitioner, containing a recital touching an agreement between counsel, after-wards set this judgment aside on the ground that a dispute had arisen as to the terms of the agreement, and then proceeded to hear the case and rendered another judgment against the petitioner (all of this occurring on the same day), it does not appear that the setting aside of the first judgment could have done petitioner any harm.</p> <p>2. Even if the setting aside of the first judgment was, as claimed by the plaintiff, beyond the power of the judge and harmful to the plaintiff, his remedy to review this decision was to apply for a mandamus to compel the judge to sign a bill of exceptions to the first judgment, in the event of his refusal to do so.</p> <p>5. Assuming that a school commissioner of the City of Cartersville is a municipal officer within the meaning of the law embodied in the Political Code, § 739, as amended by the act approved December 21,1899 (Acts 1899, p. 26, Van Epps’ Supp. §6132), the judgment of the court below in favor of the respondent was right, if only because the mayor of the City of Cartersville is not embraced within the words “ councilmen and aldermen.”</p>

<p>Where a petition for equitable relief is filed by plaintiffs as heirs at law of a decedent, in behalf of themselves and other heirs at law, and it appears from the copy of the will attached to the petition that the property involved would, if the averments contained in the petition concerning a deed made by the decedent on the same day that he made the will be true, pass under a residuary clause of the will to certain legatees, and not all of these legatees are made parties, and where it appears from the petition that some of the parties plaintiff are not legatees, a demurrer to the petition, containing this ground, is good and should be sustained.</p>

<p>• A petition filed by an executor against all the heirs at law of his testator and ail parties interested, which is based upon the principles embodied in the Civil Code, § 4000, is sustainable, even although individual transactions of the plaintiff may be involved, it appearing that the estate is interested in all of the property covered by the suit, and that the defendants are or may be interested in such property; all of the allegations of the petition being connected with the distribution of the estate.</p>

<p>1. A general law will not be so construed as to repeal an existing particular or special law, unless it is plainly manifest from tbe terms 'of the general law that such was the intention of the lawmaking body.</p> <p>2. The act of 1891 (Acts 1890-91, vol. 1, p. 241, Civil Code, §5458), relating to the publication of notices of sales and orders by certain public officers and others, did not repeal or modify that portion of the act of 1879 (Political Code, § 377) which requires that notice of an election called for the purpose of determining whether bonds shall be issued by a county shall be published for a space of thirty days next preceding the day of the election.</p> <p>3. When at the hearing of an application, under the provisions of the act of 1897 (Acts 1897, p. 82, Van Epps’ Code Supp. §§6074-6081), to validate an issue of bonds, it appears that the notice of ,the election was published for a period of time less than thirty days next preceding the day of the election, a judgment should be entered declaring the election invalid and refusing to validate the bonds.</p>

<p>1. A petition for a receiver and other equitable relief against two foreign corporations, two individual citizens and residents of another country, and the sheriff of the county in which the petition is filed, the sheriff being only a nominal defendant, which does not set forth that either of the foreign corporations has any office, officer, agent, or place of doing business in this State, or that either of the alien individuals resides in said county or is to be found therein, does not set forth any jurisdiction in the superior court of the county of the sheriff’s residence in this State, for aproeeeding in personam, or a right to obtain a personal judgment against any one of the four principal defendants. An entry of service by the sheriff can not supply the omission to set forth jurisdiction in the petition.</p> <p>2. No ground for equitable relief to the defendant in error as an individual is set forth in the petition.</p> <p>(a) It is not made to appear that what he calls a fraud was a fraud upon him in any legal sense.</p> <p>(V) The matters and things set forth in the petition as a reason for interfering with a final judgment obtained by the plaintiff in error against the. defendant in error, also set forth in the petition, could have been pleaded to a suit on the bond resulting in this judgment, if they possessed any legal efficacy.</p> <p>(c) The delay and laches of the defendant in error furnish a further reason for non-interference by a court of equity.</p> <p>3. The defendant in error does not show that as a stockholder of the two for* eign corporations he is entitled to a receiver to take charge of their assets in this State.</p>

<p>1. There was no error in overruling the motion for a nonsuit.</p> <p>2. None of the grounds set out in the motion for a new trial present any legal reason for setting aside the verdict, which was authorized by the evidence, and which is not'excessive.</p>

<p>Equitable petition. Before Judge Estes. White superior court. April 29, 1902.</p>

<p>1. A contract of sale contained a guaranty to keep the articles sold in repair during a given time following the sale, provided the buyer returned them to the seller for this purpose. There was no express warranty, nor did the nature of the transaction or anything in the contract exclude the implied warranty of the law. Held, that though in such a contract the seller impliedly warranted that the articles sold were reasonably suited to the uses intended, the purchaser could not defeat an action brought to recover the purchase-money, upon the ground that the articles were not so suited, unless it appeared that the articles when sold were so defective as not'to be reasonably suited to the uses intended; or unless they became defective after the sale, and the seller, upon the articles being returned to him, had failed or refused to repair them within a reasonable time; or unless the defect thus arising was of such a character that it could not have been remedied even if the articles had been returned.</p> <p>'2. While as a general rule a purchaser of personal property, who pays a portion of the purchase-money with a full knowledge that the article sold is defective, can not recover the amount so paid, still if at the time the payment is made it is expressly agreed that the defects shall be removed, and the seller fails or refuses to do this, the fact that the payment was made with knowledge of the defect will not alone defeat a recovery.</p> <p>3. Other than as above indicated, there was no error in any of the rulings complained of.</p>

<p>• Indictment for shooting at another. Before Judge Sheffield. Terrell superior court. June 25, 1902.</p>

<p>Indictment for cheating and swindling. Before Judge Little-john. Schley superior court. June 5, 1902.</p>

<p>Indictment for murder. Before Judge Brinson. -Richmond superior court. June 27, 1902.</p>

<p>Conviction of voluntary, manslaughter. Before Judge Bennet. Coffee superior court. June 25, 1902.</p>

<p>Indictment for attempt to commit robbery. Before Judge Barrow. Chatham superior court. June 24, 1902.</p>

<p>1. Other than as dealt with in the headnote below, none of the grounds of the motion for a new trial disclose that the trial judge committed any error sufficient to set aside the verdict.</p> <p>2. Under an indictment charging a person with rape a verdict finding him guilty of assault with intent to commit a rape is unwarranted, and contrary to the evidence, when it. appears that some of the witnesses testified, to the full accomplishment of the crime charged, and none of them to an assault not included in the perpetration of the offense. An instruction that the 'jury might so find in this case was, under the evidence, erroneous.</p>

<p>Indictment for attempt to commit robbery. Before Judge Barrow. Chatham superior court. June 24, 1902.</p>

<p>Indictment for burglary. Before Judge Henry. Floyd superior court. June 24, 1902.</p>

<p>Indictment for assault. Before Judge Foute. City court of Cartersviíle. June 30, 1902.</p>

<p>Indictment for carrying concealed weapon. Before.Judge Butt. Muscogee .superior couft. July 8, 1902.</p>

<p>Indictment for larceny. ' Before Judge Seabrook. Liberty superior court. Juné' 21,1902.</p>

<p>Indictment for bigamy. Before Judge Spence. Decatur superior court. June 28, 1902.</p>

<p>Indictment for assault with intent to murder. Before Judge Littlejohn. Sumter superior court. July 19, 1902.</p>

<p>Indictment for gaming. Before Judge Taliaferro. City court of Sandersville. July 12, 1902.</p>

<p>Motion for new trial. Before Judge Lewis. . City court of Mount Vernon. August 8,1902.</p>

<p>Indictment for murder. Before Judge Evans. Screven superior court. July 19, 1902.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. July 21, 1902.</p>

<p>Motion for new trial. Before Judge Lewis. City court of Mount Vernon. August 8, 1902.</p>

<p>Indictment for misdemeanor. Before Judge Barrow. Chatham superior court. July 19, 1902.</p>

<p>Accusation of beeping a lewd house. Before Judge Norwood. City court of Savannah. October 21, 1902.</p>

<p>Certiorari. Before Judge Brinson. McDuffie superior court. August 6, 1902.</p>

<p>Indictment for selling liquor. Before Judge Taliaferro. City court of Sandersville. August 14, 1902.</p>

<p>Indictment for attempt at arson. Before Judge Barrow. Chat-ham superior court. August 12, 1902.</p>

<p>1. Moving to dismiss a writ of error on the ground-that the evidence sent up in the record has not been briefed as required by law is not the proper manner of bringing to the attention of this court an apparent failure on the part of the plaintiff in error to make a bona fide effort to meet the requirements of the Civil Code, § 5528, which prescribes how the evidence adduced on the trial of a case in the court below shall be presented for consideration by this court.</p> <p>2. An accusation.in which three named persons are jointly charged with the offense of gaming, but .in which there is no allegation that they participated with others in the doing of the acts therein specified, is not sustained by evidence showing merely that one of the persons accused engaged, with other parties whose names were undisclosed, in playing for money a game in which cards were used.</p>

<p>1. To constitute a notorious act of public indecency, within the meaning of the Penal Code, § 390, it it essential that the act should have been committed at a tíme when and in a place where it could have been seen by more than one person.</p> <p>2. An indictment charging one with “publicly and indecently exposing his secret or private parts of his person” in the presence of one named individual , but which fails to charge that the act was committed at a place where it could have been seen by more than one person, should have been quashed on a demurrer raising this objection.</p>

<p>Iudictmeut for receiving stolen - goods. Before Judge Barrow. Chatham superior court. August 13, 1902.</p>

<p>Indictment for murder. Before Judge Candler. Fulton superior court. July 12, 1902.</p> <p>The parts of the charge of the court as to which error is assigned are as follows:</p> <p>“The law presumes every person tobe of sound mind; and in this case I charge you that the burden is upon the defendant to satisfy you to a reasonable certainty that, at the time of the commission of this act in question, he was not of sound mind and discretion ; and I further charge you that what is meant by this expression in law is, if a man has sufficient reason to distinguish between right and wrong in relation to a particular act about to be committed, he is criminally responsible, as a general rule. If he has not sufficient reason to distinguish between the right and wrong of a particular act about to be committed, be is not criminally responsible for that act. The unsoundness of mind which excuses from crime is such as dethrones reason and renders an individual incapable of distinguishing between the right or wrong of a particular act.” It is alleged that this was error, because the.right and wrong test given is not the law ; that the insanity need not be such as dethrones reason and incapacitates from distinguishing between the right or wrong of a particular act as charged; and that the test for insanity given by this charge is inconsistent with that portion of the charge subsequently given, in which the court charged that if by reason of the duress of mental diseases the defendant had lost the power to choose between right and wrong, and free agency was destroyed, he would not be responsible, etc.</p> <p>“A person in order to be punishable by law must have sufficient memory, intelligence, reason, and will to enable him to distinguish between right and wrong in regard to the particular act about to be done; to know and understand that it would be wrong, and that he would deserve'punishment for committing it.” It is alleged that this was error, for thereasons assigned as to the preceding extract ; that the right and wrong test here given is too rigid, and the quantum of intelligence required thereby too small to furnish an invariable rule by which to determine sanity or insanity.</p> <p>“ On the other hand, a person may be deranged as to other things; yet if he has sufficient reason or mind to distinguish as to the right or wrong of that particular act about to be committed, if he knows and understands that for committing that act he would be liable to be punished, he is responsible.” It is alleged that this was error, for the reasons assigned as to the preceding extracts; that it is a repetition and argumentative; that in view of the testimony introduced by the defendant, to the effect that he was an epileptic, and that when the acute spells of epilepsy seized him he was incapable of controlling his actions, the charge was too rigid; and that the knowledge of right and wrong is erroneously put by the judge as depending on an understanding as to whether he would be liable to be punished for his act, whereas, even if the right and wrong test were proper, the knowledge of right and wrong required is greater. than that put by the judge, and the defendant should have greater knowledge of the right or wrong of his act than merely that it -was unlawful and deserved punishment.</p> <p>“Therefore; you will look to the evidence in this case and see, at the time this act was committed, whether the accused had sufficient mind or reason, or mental capacity, to know that the act was wrong; in other words, that it was a violation of the law, and he would be liable to be punished for it. If he did not, then he is not responsible to the law and ought not to be; because the law does not allow an' insane man to be convicted, or a man who has not sufficient capacity to have a criminal intent to be convicted. But if he did know, although he may have been insane or peculiar about other things, — if he did know at the time he committed that act, and he had understanding and reason sufficient to know that it was a violation of the law, and that he would be punishable for it, then the jury would be authorized to find him guilty.” The assignments of error as to this part of the charge are similar to those made in regard to preceding portions.</p> <p>“As charged you, the law presumes every man to be of sound mind until the contrary appears; and the burden of proof is upon the defendant to show that at the time of the commission of the act in question he was not of sound mind, and of the sound mind I have explained to you. The burden is on the defendant to make it appear to a reasonable certainty, and to your reasonable satisfaction, that at the time of the commission of the act charged, he was not legally responsible.” It is alleged that this was error, because if there was a reasonable doubt of insanity, there was one of guilt, and the prisoner should have been acquitted; and because the burden was not on the defendant as charged, but if the evidence on the question of sanity, taken in connection with the other evidence in the case, raised a reasonable doubt of guilt, there should have been an acquittal.</p> <p>Error is assigned on the refusal of the court to charge as follows: (a) “ If the evidence in this case on the subject of insanity, when taken in connection with all the testimony in the case, raises in your minds a reasonable doubt of the defendant’s guilt, then you should acquit him. (6) The very definition of murder involves the proposition that the accused must be of sound memory and discretion ; and if you have in your mind a reasonable doubt as to the defendant’s sanity, you should acquit him. (c) In passing upon the defense of insanity you should view it from an entirely unprejudiced and impartial standpoint. The circumstances of the alleged crime may be looked to in passing upon the issue of insanity; but the circumstances of atrocity which might have attended the homicide should in no way bias, prejudice, or influence your verdict upon the issue of insanity, (d) If the jury believe from the evidence that at the time of this homicide the defendant was afflicted with epilepsy to such an extent as to be insane, and that under the influence of such epilepsy he was incapable of controlling his action, but was impelled by the effect of such disease to the commission of the homicide in question, then he would not be guilty, even though you find that he may have had, in the abstract, knowledge as to the right or wrong of the act in question.”</p>

<p>Indictment for murder. Before Judge Candler. Fulton superior court. July 15,1902.</p>

<p>Indictment for gaming. Before Judge Route. City court of Cartersviile. June 30, 1902.</p>

<p>Accusation of living in adultery. Before Judge Carter. City court of Baxley. August 25, 1902.</p>

<p>Indictment for bastardy. Before Judge Hodnett. City court of Carrollton. August 23, 1902.</p>

<p>The jury in the trial of one who is charged with murder, if they find the accused guilty, are invested by law with the power of fixing the punishment, by recommendation to life imprisonment. Whether they will so recommend or not is a matter solely in their discretion, which is not limited or confined in any case. Accordingly, where the jury were instructed that they had such right, full and untrammelled, but in the same connection they were also instructed that the law allows such recommendation in cases where they think there are circumstances of mitigation, and in cases where the circumstances soften the crime, and where in their judgment they do not think the death penalty ought to be inflicted, a verdict of guilty without a recommendation must be set aside, because it is possible that the jury may not have fully understood the extent of their power as defined by the law.</p>

<p>Accusation of larceny from the person. Before Judge Taliaferro. City court of Sandersville. September 10, 1902.</p>

<p>Indictment for larceny from the house. Before Judge Crisp City court of Americus. September 11, 1902.</p>

<p>Indictment for burglary. Before Judge Henry. Floyd superior ■court. September 17, 1902.</p>

<p>Indictment for receiving stolen goods. Before Judge Brinson. McDuffie superior court. September 4, 1902.</p>

<p>1. Postponements of trials rest in the sound discretion of the trial judge. It does not appear that this discretion was abused in the present case.</p> <p>2. Where, upon the call of a criminal case to be set for trial, the accused being unable to employ counsel, the court appointed a ‘f junior and inexperienced member of the bar” to represent him, and upon the trial, and before the same was entered into, the court, ex mero motu, appointed an “ attorney of experience and ability” to aid in the defense, and both of the attorneys represented the accused throughout the trial, he had “ the privilege and benefit of counsel,” as guaranteed him by the constitution of this State.</p> <p>3. Even if a failure to charge upon the law of confessions, in the absence of a request to so charge, be cause for a new trial, the evidence in the present case did not authorize a charge on the subject.</p> <p>4. The verdict is amply supported by the evidence, and is not contrary to law.</p>

<p>1. A statement that the accused intended thereafter to do a particular thing,made at the time of and in connection with certain other statements as to a past fact, shown to have heen false, does not remove from the accused the consequences which the law attaches to false representations made with intent to deceive, and hy which one is defrauded and cheated. This is true notwithstanding the representation as to what the accused intended to do was a part of the inducement under which the defrauded person parted with his money.</p> <p>2. The jury were authorized to find, as they did, that the representations proved in this case meant that the son of the defrauded person had sent word to the latter to let the accused have a sum of money for and on account of the son.</p> <p>3. The evidence was sufficient to make out a case of cheating and swindling under the statute. The trial judge committed no error in'eharging the jury as complained of, nor in overruling the motion for a new trial.</p>

<p>1. The overruling of a demurrer to an indictment can not properly be made a ground of a motion for a new trial.</p> <p>2. It is too late, in the absence of exceptions pendente lite, to except to the overruling of a demurrer to an indictment, when twenty days have elapsed since the ruling complained of was made.</p> <p>S. Upon demurrer to, or motion to strike, a plea of misnomer in a criminal case, the court may, as matter of law, decide that the names “ Witt ” and “ Wid ” are idem sonans.</p> <p>4. The fact that an indictment which describes the accused by his Christian and surnames fails to also designate him by the initial of his middle name is immaterial.</p> <p>5. The evidence supported the verdict, and there was no error in refusing to grant a new trial.</p>

<p>Indictment for larceny. Before Judge Henry. Floyd superior court. September 6, 1902.</p>

<p>Indictment for larceny after trust. Before Judge Henry. Floyd superior court. September 24, 1902.</p>

<p>Indictment for selling liquor. Before Judge Crisp. City court of Americus. September 11, 1902.</p>

<p>Action on bond. Before Judge Holden. Elbert superior court. June 16, 1902.</p>

<p>1. A motion to set aside a verdict and vacate the order or sentence made in a criminal case can not be entertained by a judge of a city court in vacation, for want of jurisdiction.</p> <p>2. The evidence was sufficient to support the verdict.</p>

<p>1. Where a motion for a new trial is made in term and set for a hearing in vaca.tion, and for any reason is not disposed of in vacation, it is in order for hearing and disposition during the term without notice.</p> <p>2. The evidence warranted the verdict, and no reason appears why the judgment overruling the motion for a new trial should be reversed.</p>

<p>Accusation of larceny from the house. Before Judge Hammond. City court of Griffin. September 9, 1902.</p>

<p>Evidence that a father refused to permit medicine to he administered to, one of his minor children while sick does riot support a conviction of the father for depriving such child of necessary sustenance, within the meaning of the statute which declares such deprivation to he an offense against the laws of this State,</p>

<p>1. The common-law rule, that when an indictment charged an offense which included within it another less offense, or one of a lower degree, the accused, though acquitted of the higher,offense, might be convicted of the less, is of force in this State, though there is no statute expressly adopting the rule.</p> <p>2. The common-law qualification of this rule, however, that a conviction for a misdemeanor could not be had under the charge of a felony, has never been of force in this State.</p> <p>3. But the general rule is to be qualified to the extent that the lesser offense must either necessarily be included in a general charge of the greater, or if it may or may not be, then the averments of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser.</p> <p>4. Under an indictment for murder the accused may be convicted of a lower grade of felony, or even of a misdemeanor, if the lesser offense is one involved in the homicide and is sufficiently charged in the indictment.</p> <p>5. An indictment for murder which alleges that the accused “a certain pistoi loaded with gunpowder and leaden ball, which [the accused] then and there had and held, in, at, towards, and upon [a named person], unlawfully, feloniously, wilfully, and of his malice aforethought did shoot off and discharge, giving to [such person] then and there a mortal wound,” of which he died, sufficiently charges the offense of shooting at another, and under such indictment the accused may be convicted of that offense.</p> <p>6. When under such an indictment there is a verdict finding the accused guilty of the offense of shooting at another, it is not erroneous to overrule a motion in arrest of judgment. Upon the bearing of such a motion the court looks only at the indictment and the verdict, the presumption being that the evidence lawfully authorized such a verdict.</p> <p>7. Whether such a verdict could lawfully stand as against a proper motion for a new trial, when the evidence required a finding that the person shot at died from the effects of the wound, given hy the accused, is a question not involved in the present case and will not now he decided.</p>

<p>Indictment for attempt to commit robbery. Before Judge Barrow. Chatham superior court. September 17, 1902.</p>

<p>Accusation of selling liquor. Before Judge Crisp. City court of Aruericus. September 11, 1902.</p>

<p>The evidence introduced hy the State fully warranted a conviction of the accused for the offense of riot; and, so far as appears, the court did not err in refusing to grant them a new trial.</p>

<p>1. The circumstances of the homicide, as testified to by some of the witnesses, authorized the trial judge to instruct the jury as to the law of voluntary manslaughter, in addition to that of murder and justifiable homicide. The verdict for voluntary manslaughter was supported by the evidence.</p> <p>2. In the absence of a request so to do, the trial judge committed no error in failing to instruct the jury on the law as to the impeachment of witnesses ; nor did he commit any error in overruling the motion for a new trial on the ground of newly discovered evidence.</p>

<p>Indictment for burglary. Before Judge Fite. Gordon superior court. October 13, 1902.</p>

<p>Complaint. Before Judge Henry. Floyd superior'court. September 5, 1902.</p>

<p>Action for damages. Before Judge Reece. City court of Floyd county. March 5, 1902.</p>

<p>Warrant to evict tenant holding over. Before Judge Reece.. City court of Floyd county. March 20, 1902.</p>

<p>In the trial of an'action for the alleged “malicious abuse of legal process,” in suing out a distress warrant against the plaintiff and having the same levied upon his property, proof that the plaintiff in the distress-warrant proceeding obtained a judgment therein, in a court of competent jurisdiction, is, notwithstanding the reversal of such judgment by a higher court, and the subsequent dismissal of the distress warrant, conclusive evidence of probable cause for the institution and prosecution of the suit complained of, unless it be shown that such judgment was procured by the use of fraudulent means.</p>

<p>1. The only duty which a railroad company owes, in this State,, to a. trespasser upon or about its property is not to injure him wantonly or wilfully; but this rule does not relieve the company, under all circumstances, from anticipating the presence of a trespasser upon its property and from taking proper precautions to prevent injury to him.</p> <p>2. Where a number of children, ranging in age from six to fifteen years, are, with the knowledge and without the disapproval of the employees of a railroad company in charge of its trains, permitted to board and ride upon the trains while they are passing over a side-track through a playground of the children to a point beyond and while they are returning from such point to the main line of the road, the children alighting from the trains at the limits of the playground both going and returning, and this custom is a continuous one, engaged in whenever the trains enter the playground, it is the duty of the employees of a train who are aware of this custom to anticipate that when the train enters the playground the children will attempt to ride upon it and alight from it at the point where they have been accustomed to do so ; and they are under a further duty, consequent upon the first, to take proper measures to prevent injury to such children.</p> <p>S. Where, under the circumstances above detailed, a child lacking in experience and discretion and incapable of appreciating the danger incident to his con-' duct, gets upon the running-board behind, the tank of an engine before the engine begins its return trip through the playground, and is injured while attempting to jump therefrom at the point where children have been for a long time previous continuously in the habit of alighting, the company is liable in damages for the injuries thus received, even though its employees in charge of the train have no actual knowledge of the presence of the child upop the running-board of the engine. An ordinarily prudent person would, under such circumstances, have reason to anticipate the presence of the child upon the engine, and the servants of the company, as prudent men, would be re quired to ascertain whether the child is in fact upon the engine before beginning the return trip, and should either require him to alight, or at least stop the tx-ain for this purpose at the place where the children have been accustomed to alight.</p> <p>5. A petition setting forth facts such as are above detailed should not have been dismissed on a general demurrer.</p>

<p>1. Where a number of persons habitually, with the knowledge and without the disapproval of a railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who are aware of this custom, are bound, on a given occasion, to anticipate that persons may be upon the track at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence.</p> <p>2. The rule above stated is more especially applicable where the crossing is at a populous locality within an incorporated city.</p> <p>3. In view of the allegations of the petition, it was a question for the jury to determine whether the deceased could, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence after the same was existing and was either apparent or the circumstances were such as to cause a reasonable person to apprehend its existence.</p> <p>4. The allegations of the petition made a case for submission to a jury, and the court erred in dismissing the same on demurrer.</p>

<p>A petition in a suit for damages against a municipal corporation on account of personal injuries, which alleges that the municipal authorities allowed to be placed at a certain point in the city “ two large stones,” and that the plaintiff ’s horse became frightened at these stones and ran away, causing the , injuries on account of which suit is brought, but which fails to allege the length of time that the stones were permitted to remain in the place described, that the stones were objects naturally tending to frighten an ordinarily roadworthy horse, and that his horse was such an animal, and which does not allege that the city violated any duty in failing to cause the removal of the„ stones, or make any allegation of fact from which such a violation of duty can he Inferred, does not state facts sufficient to authorize a recovery against the city, and should he dismissed on demurrer.</p>

<p>Action for slander. Before Judge Reece. City court of Floyd county. April 1,1902.</p>

<p>Action for damages. Before Judge Beece. City court of Floyd ■county. April 2,1902.</p>

<p>1. In order to take a debt out of the operation of the statute of limitations, it must be shown to have been kept alive by a new promise in writing which plainly and unmistakably refers thereto. As a general rule, an executor is without power to bind the estate he x-epresents by an original undertaking on his part; nor is a note given by him in his representative capacity to be regained as a promise to pay a particular debt, when such note does not identify any outstanding claim against the estate.</p> <p>2. A decree whei-eby an executor was granted leave to mortgage property belonging to the estate of his testator is not binding upon a creditor who was not made a party to the proceeding wherein such decree was rendered.</p>

<p>The trial judge erred in granting a nonsuit. There was evidence for the plaintiff from which the jury could have legally determined that the contract entered into by the intestate and the defendant was not expressed in the writing which the latter received and held, the meaning of which he (being unable to-read or write) could not have ascertained for himself.</p>

<p>Habeas corpus. Before Judge Henry. Floyd superior court. September 13, 1902.</p>

<p>Complaint. Before Judge Reagan. Monroe superior court. March 18, 1902.</p>

<p>1. Upon general demurrer it will be determined whether the averments of an equitable petition are such as to authorize the relief called for by the prayers of the same.</p> <p>2. Even though an equitable petition may contain allegations which would authorize relief of a given nature, yet if there be no specific prayer asking for this relief and no prayer for general relief, the petition will be dismissed on general demurrer when the allegations thereof do not authorize the relief prayed for therein.</p> <p>3. Applying the rules above laid down to the petition in the present case, the court did not err in sustaining a general demurrer to the petition.</p>

<p>Equitable petition. Before Judge Henry.' Floyd superior court. June 5, 1902.</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. August 16, 1902.</p>

<p>The evidence demanded a finding for the plaintiff for the amount of the verdict returned, and it was not error for the judge of the trial court to direct accordingly.</p>

<p>Cotton which, while stored in a particular warehouse, is specifically covered by a policy of fire-insurance does not, until by removal from the warehouse or otherwise it loses the protection thus afforded, come within the operation of a, “floating” policy which in express terms stipulates that it shall not be held to “ apply to or cover any cotton which, at the time of the loss, may be covered by any more specific insurance.”</p>

<p>"While the action of the trial judge in sustaining the certiorari was in entire accord with the law, he nevertheless committed error in rendering a final judgment in the case, for the reason that such final determination depended upon an issue of fact, to wit: was the defendant a laborer in the sense of the statute which declares the wages of laborers to be exempt from the process of garnishment ? it is only in cases in which the error complained of is an error of law which must finally govern the case, that the trial judge has authority to render a final judgment in a case brought to the superior court by writ of certiorari.</p>

<p>Motion for a new trial. Before Judge Harris. Heard superior court. June 19, 1902.</p>

Action of deceit. Before Judge Longley. City court of La-Grange. April 19,1902. The representations on which the action was based were made in reply to a letter of the plaintiffs, iu which they said: “We are referred to you by [a named person], and we would thank you to advise us by return mail as to his character, habits, and financial responsibility. Do you think we would be safe in extending to him a $500.00 line on four months time ?

<p>Complaint. Before Frank Harwell, judge pro hac vice. City court of LaG-range. June 30, 1902.</p>

<p>Motion to open default. Before W. P. Cole, judge pro hac vice. City court of Carrollton. July 23, 1902.</p>

<p>Where no provision is made, by an order duly entered in term, for the hearing of a motion for a new trial in vacation, it can not, save in the manner pointed out in the Civil Code, § 4324, be brought to a hearing and disposed of prior to the next ensuing term of court.</p>

<p>Equitable petition. Before Judge Reagan. Monroe superior court. February 5, 1902.</p>

<p>1. Damages traceable in some measure to a tortious act, but resulting chiefly from other and contingent circumstances, and not the legal or natural consequence of the act, are too remote to be the basis of recovery against the wrongdoer.</p> <p>2. It follows that where a female passenger on a railroad-train was carried beyond her station, and the train stopped near the next station, and the passenger walked at night and without escort through the town to the house of a friend in that town, she should not be allowed to show that she was frightened by hearing loud voices of negro men who were walking behind her, unless it is also made to appear that the locality was one in which such occasion for fright was likely to occur and that the railroad company bad notice of this.</p> <p>8. Where a continuous tort by a railroad company is commenced in one county and completed in another, the principal damage being done in the latter county, the courts of that county have jurisdiction of the cause of action</p>

<p>Action for damages. Before Judge Reagan. Butts superior court. February 25,1902.</p>

<p>1. Exceptions to a judgment on a motion to dissolve an injunction can come to the Supreme Court only by an ordinary bill of exceptions, and not by a fast bill.</p> <p>2. While a fund raised by a sale of the property of an insolvent debtor, through the medium of a receiver under the orders of a State court, may, on the application of a trustee appointed after an adjudication of such debtor as a bankrupt, for a transfer of such fund in the State court to him, be charged with the cost and expenses of converting the property of the debtor into cash, yet after the property of a debtor has been seized under the order of a State court and placed in the hands of a temporary receiver, and after the adjudication of such person as a bankrupt, and before the conversion of his property into cash has been made by the receiver, the trustee, on application to the State court, is entitled to the possession of the property for the purpose of being sold and administered in the coui't of bankruptcy; and it is error on the part of the judge of the State court to order the transfer of such property to the trustee on condition that the fees for the attorneys and receiver shall be first paid. ■ Where no fund is in the hands of the receiver, out of which such payments may be made, the persons claiming to be paid out of the prop- ; erty must be remitted to the bankruptcy court for the adjudication and establishment of ijbeir respective claims.</p>

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

<p>Complaint. Before Judge Hart. Laurens superior court. January 27, 1902.</p>

<p>Trover. Before Judge Holden. Jasper superior court. March 24, 1902.</p>

<p>Petition to establish copy. Before Judge Hart. Putnam superior court. March 20, 1902.</p>

<p>1. There was evidence which authorized the jury to return a verdict for the-' plaintiff, and the amount fixed as the damages which she sustained was not, under the evidence submitted, excessive.</p> <p>2. While the trial judge erred in permitting leading questions to be asked the plaintiff on her direct examination, and admitted in evidence her answers, thereto, such error is not, under the rulings heretofore made by this court, sufficient to cause a reversal of the judgment.</p> <p>3. The trial judge did not err in his instructions to the jury, of which complaint is made, nor in refusing to instruct the jury as requested.</p>

<p>A court of equity will not undertake to compel the specific performance of a parol contract for the sale of land, unless the land which is the subject-matter of the alleged contract is clearly identified.</p>

<p>Action for damages. Before Judge Janes. Polk superior court. January 18,1902.</p> <p>The following appeared from testimony introduced by the plaintiff : She was a passenger on a train on the defendant’s railroad, with a ticket to Aragon station. Just before the train arrived at that station, the conductor came into the car in which she was seated, and, as he passed her, looked at her and said, “Aragon the next station.” When the train stopped at the station she went to the platform of the car, preceded by several other passengers, and with her daughter, a child seven years of age, immediately in front of her. The conductor stood on the ground and assisted the other passengers to alight. There was no platform at that place on which they could alight. In stepping from the car they stepped on a stool placed on the ground, and it was a long step from the lowest step of the car-platform to the stool. After the conductor had assisted the plaintiff’s daughter to alight, he turned, with his back toward the plaintiff, and was talking to other persons. She was weak, and waited for some time for him to assist her. As he did not do so, she stepped downward, holding the railing of the platform on each side. When she put her foot on the stool, it turned, and she slipped and fell with so much force that her hold on the railing was broken loose. In consequence of the fall she sustained serious injuries, which were described. The earth was loose and soft at that place, and the stool was on a loose clod. The testimony introduced by the defendant conflicted with that of the plaintiff in material particulars. The petition alleged that the defendant was negligent in not providing a suitable place for the plaintiff to alight, and in not furnishing her assistance in alighting, there being no platform, the ground being soft and a long distance from the bottom step of the car, and the stool unfitted for the use to which it was being put.</p> <p>There was a verdict against the defendant for $2,000. The exceptions were to the overruling of the defendant’s motion for a new trial, which alleged that the verdict was contrary to law and the evidence, and that the court erred in charging as follows: “ A carrier of passengers is bound to extraordinary diligence, on behalf of itself and its agents, to protect the lives and persons of its passengers. A carrier of passengers is bound to use extraordinary diligence in protecting the lives and persons of its passengers.” “The duty of the railroad begins when the passenger boards the train, and is not ended until the passenger is safely landed from the train.”</p>

<p>1. “A mere statement in a warehouse receipt, that ‘all cotton stored with us ■ fully insured,’ will not alone constitute a contract between the parties, requiring the warehouseman to insure the cotton of his customer and rendering him liable for the value of the same when destroyed by Are.”</p> <p>2. The amendments to the petition were properly disallowed for the reason that each sought to set up a new and distinct cause of action.</p> <p>3. The evidence authorized the verdict. The showing as to diligence in reference to the alleged newly discovered evidence not being at all satisfactory, and there being no affidavit as to the character and credibility of the alleged new witness, the discretion of the trial judge in refusing to grant a new trial will not be controlled.</p>

<p>Certiorari. Before Judge Reagan. Monroe superior court. February 13, 1902.</p>

<p>Equitable petition. Before Judge Reagan. Butts superior court. March 31, 1902.</p>

<p>Where a rule is issued against a levying officer, calling upon him to show cause why he has not brought to sale property levied on by him under an execution issuing from a court of this State, it is incumbent upon him to make it affirmatively to appear that he parted with possession of the property levied on in obedience to the mandate of a court of competent jurisdiction which he was bound to respect, or that the process placed in his hands could not legally have been enforced by him.</p>

<p>While it is not necessary in a suit on a promissory note to set out in the petition in figures the amount of interest due at the commencement of the suit, but an allegation that interest is due at a given rate from a given day will be sufficient to authorize a recovery of all interest due and payable on the debt, still, if the pleader sets forth a stated sum as due on a given day, no larger sum than that can be recovered as interest up to the date stated</p>

<p>A verdict for the plaintiff in a proceeding founded upon Civil Code, §4823 etseq., providing a civil remedy for forcible entry and detainer, is not warranted when the evidence shows that the entry was made into an occupied dwelling-house during the temporary absence of the person entitled to the-possession.</p>

<p>Complaint. Before Judge Adams. City court of Dublin. March 29,1902.</p>

<p>Where land is sold by the tract and described in the conveyance as so many acres, “more or less,” a deficiency in the number of acres actually conveyed to the purchaser will not authorize an apportionment in the price agreed to be paid, if the purchaser admits that there was no intentional fraud upon the part of the vendor.</p>

<p>1. A contract attached to a promissory note and signed by the payee thereof, in which he undertakes to transfer the note “and guarantee it as free from any defense that could be made under sec. 2785 of the Code of Georgia, and also guarantee payment in full on the day it is due,” is in this State a contract of indorsement.</p> <p>2. The note being a sealed instrument, the statutory bar applicable to the contract of indorsement is twenty years, though no seal follows the signature of the payee thereto.</p> <p>3. Where the petition seeking to recover on such a contract as that above quoted describes the defendant as a “ guarantor,” it is competent to amend by describing him as indorser, even if such an amendment is necessary in order to authorize a recovery on the contract.</p>

<p>Petition for partition. Before Judge Evans. Morgan superior court. August 30, 1902.</p>

<p>Petition for certiorari. Before Judge Butt. Marion superior court. March 25, 1902.</p>

<p>Complaint. Before Judge Butt. Muscogee superior court. May 14,1902.</p>

<p>Complaint — appeal. Before Judge Butt. Marion superior .court. May 1, 1902.</p>

<p>Injunction. Before Judge Butt. Talbot superior court. July 7, 1902.</p>

<p>Certiorari. Before Judge Sheffield. Early superior court. April 17, 1902.</p>

<p>Complaint. Before Judge Butt. Marion superior court. July 2, 1902.</p>

<p>Attachment. Before Judge Sheffield. Terrell superior court. June 17, 1902.</p>

<p>Action for damages. Before Judge Sheffield. Randolph supe-rior court.' June 13, 1902.</p>

<p>1. There was no variance between the allegata and the probata.</p> <p>2. The measure of damages recoverable of a vendor for failure to deliver goods sold being the difference between the contract price and the market value at the time and place for delivery, it follows that where a vendee, upon the trial of an action against his vendor for such damages, failed to submit any evidence as to the market price at the time for delivery, no actual damages could be recovered.</p> <p>3. Where under the evidence the plaintiff is entitled to recover nominal damages, it is erroneous to grant a nonsuit.</p>

<p>Complaint. Before Judge Crisp. City court of Americus. March 12, 1902.</p>

<p>1. Where the board of education having in charge the management and control of the public school system of a city has enacted an alleged illegal requirement for admission to the public schools, the remedy of a parent whose child has been denied admission to such schools is by mandamus to compel the proper officer to admit the child, and not by injunction to restrain the enforcement of the alleged illegal requirement.</p> <p>2. Where an action is brought by several parties as citizens and taxpayers to prevent the enforcément of an alleged illegal regulation such as is indicated in the preceding headnote, and on the hearing only one of the plaintiffs is shown to be a parent with children of school age, and it appears that his children are not subject to the operation of such requirement, no right to the relief prayed for is established.</p>

<p>Certiorari. Before Judge Spence. Decatur superior court. December 24, 1901.</p>

<p>Certiorari. Before Judge Spence: Decatur superior court. December 24, 1901.</p>

<p>Ejectment. Before Judge Spence. Calhoun superior court. February 10, 1902,</p>

<p>Certiorari. Before Judge Spence. Worth superior court. April 30, 1902.</p>

<p>Action on insurance policy. Before Judge Spence. Decatur superior court. May 15, 1902. •</p>

<p>Certiorari. Before Judge Spence. Decatur superior court. May 19, 1902.</p>

<p>Equitable petition. Before D. H. Pope, judge pro hac vice. Decatur superior court. May 14, 1902.</p>

<p>Ejectment. Before Judge Spence. Decatur superior court. May 29, 1902.</p>

<p>An incomplete answef to a writ of certiorari can be perfected only in the event the party dissatisfied with such answer complies with the requirements of the Civil Code, §4641, as to specifying in writing the defects therein, and giving to the opposite party due notice of the exceptions taken thereto, before the case is called for a hearing in the superior court.</p>

<p>Certiorari. Before Judge Henry. Walker superior court. May 27, 1902.</p>

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

<p>Habeas corpus. Before Judge Felton. Bibb superior court. September 25, 1902.</p>

<p>Action, on insurance policy. Before Judge Henry. Floyd superior court. June 17, 1902.</p> <p>From the evidence it appeared that Morton was approached by a soliciting agent of the insurance company and induced to apply for insurance. Before the insurance policy was issued, he was examined by a physician employed by the company, who read to him, from a printed form of application, a series of questions and wrote in the application the answers given, after which Morton signed the application. The material parts of the application are as follows:</p> <p>Part I. Q. Do you understand and agree that no statements, representations,.or information made or given by or to the person soliciting or taking this application for a policy, or to any other person, shall be binding on the company, or in any manner affect its rights, unless such statements, representations, or information be reduced to writing and presented to and approved by the officers of the company at the home office ? Answer. I do. —It is hereby declared and agreed that all the statements and answers written in this application, marked Part I, including those to be made to the Medical Examiner, marked Part II, are warranted to be true and full and fair answers to the questions, and are offered to the company as a contract [?] for the contract of insurance, which shall not take effect until the first premium shall have been actually paid during the lifetime of the person herein proposed for insurance, and while he is in good health. (Signed by the insured.)</p> <p>Part II. Question. When did you last consult a physician, and for what? A. 1895, May, for a cold. —Have you fully recovered ? Yes. —Give name and address of the physician who attended you. Dr. D. T. McCall, Rome, Ga. — Give name and address of your usual medical attendant. Dr. T. M. Shaw, now of Rome, Ga. — Are you willing that your physician be consulted respecting your health? Yes. —In what form and to what extent do you use tobacco? Don’t use it at all. —Have you had since childhood any of the following, diseases or disorders? Mental derangement or nervous disease? No. —Spitting or raising of blood? No. —Yertigo, dizziness, or unconsciousness? No. —-Fits, epilepsy, or convulsions of any kind ? No. — Sunstroke or fainting spells ? No. —Palpitation or any disease of the heart? No. — Have you had since childhood any chronic or constitutional disease, or severe injury, not fully set forth ábove ? No. —Have you any reason to believe that you are not in good health at the present time? No. (Signed by the insured.)</p> <p>Accompanying the application was a report of the examining physician as to the results of a physical examination of the applicant, giving certain details of the examination and tests applied, and certifying that there was no indication of disease and nothing unfavorable in his general appearance ; that he had no predisposition to any local or constitutional disease; that the examiner believed from his appearance and statements that he uniformly enjoyed good health ; that he had personal knowledge of the habits, past and'present, and of the general standing of the applicant; that he had known the applicant intimately for six years; that he had no reason to suspect unacknowledged over-indulgence in the use of stimulants or of narcotics, then or in the past; that he could not discover anything unfavorable in his manner of living, physical condition, or personal or family history, not mentioned; and that he unqualifiedly recommended the acceptance of the risk for a life-policy.</p> <p>The policy was dated October 30,1895. The insured was adjudged insane in August, 1898, and was committed to an insane asylum, where he remained until his death, which occurred in May, 1900. No inquiry or investigation as to his health, other than that mentioned above, was made on the part of the insurance company until after his death. The company, in issuing the policy, relied on the statements in the application, and on the report and recommendation of the examining physician; and he and the company’s agents through whom the policy was issued testified that they did not know that any of the statements made in the application were untrue. Dr. D. T. McCall testified: I treated Mr. Joseph Ross Morton for a disease in the early nineties. He had been smoking a great deal of cigarettes; I attributed it to that. He had nervous trouble from it. He had what we call “ tobacco heart; ” it was very rapid, and I kept him there with me a night or two. . . I was with him a great deal, trying to find out the main trouble. He would have nervous attacks. He would be sitting down talking to you, and there would seem to be a stagnation of the .blood all at once; he would apparently have congestion, and he would lay hold of anything that happened to be around, and his muscles would become contracted so he would hold it tight. It would soon pass off. His conversation would commence right where he left off;, wouldn’t seem to notice that he had an attack at all. His mind, would be absent at the time. Would commence his conversation right where he left off. He would laugh. The laughing was the most I noticed. I never saw him fall only the latter part of the time I knew of him. . . I was standing talking to him, he went down on his all fours, and I caught hold of him; that was away up-in 1898, somewhere along there, just before he went to the asylum. In reply to the question whether, in his opinion, Morton was affected with any mental derangement or nervous disease, the witness said: Only that. His mind seemed to be perfectly clear at all times afterwards, except when that was on him. I say he had that nervous disease. It was a sort of climax of the nervous system when he arrived at that point, was my diagnosis, sustained by the authorities. I assign as the cause of that nervous derangement, as I said, smoking. I treated him for nothing except that trouble. I treated him two or three years, and he seemed to improve under the treatment. He went to Dr. Battey along after-wards, and two or three others, after I treated him, and he would consult me right straight along all the time. I began treating him in the early nineties. . . I suppose it was 1892 or 1891, along there somewheres. I stopped seeing him in 1893 or 1894, somewhere along there, and then I treated him afterwards. There was an interval of a year or two that I didn’t treat him. I began treating him again in 1896, I think, or 1897, along there. There was-another trouble then, though; there was a hemorrhage of the lungs ;. he had an abscess of the lung and several hemorrhages from it. He got better, got a great deal better, and missed having any attack for a good while. When I first saw him they were every day or so, or every night nearly, any time. He was subject to them at any time, but they got so they would be once a week or once a month, and so on, until I thought they had about stopped. There-was an absence of the mind. I don’t think he knew anything at all when these attacks were on him. I don’t think it was true epilepsy ; not convulsions; he didn’t convulse. We would term it partial epilepsy. He didn’t faint. His heart was regular but rapid. His heart was regular, as I told you. I didn’t find any organic trouble about his heart. I may say that he had functional trouble of the heart, sympathetic trouble from other troubles of the nervous system. It was a protracted trouble, or chronic. I told him that I was satisfied it was from using tobacco, from the nicotine. I suppose that he knew it or he wouldn’t have come to me to treat him. The first time he came, my recollection is that it wasn’t long till he had one in my presence. Have seen him have those spells a number of times. I advised him that all his. trouble resulted from excessive use of tobacco, smoking cigarettes. . . He quit tobacco after that, under my advice. Under my treatment his general condition improved, and he had less frequent attacks. I thought he was about well. . . I don’t think that I ever informed him, as a physician, that he had epilepsy, or any of those serious disorders that have been inquired about. I told him this, that it might lead to epilepsy or something of the kind, — that is, the excessive use of cigarettes. He did quit the use of cigarettes, so far as I know. I talked with him about his having these unconscious spells, and told him that I had seen him have some of them. I advised him that it was a serious trouble with him, and that it was caused by tobacco, that it would endanger his health. I don’t know exactly what I did tell him, but I told him a good deal. I explained the result. His mental derangement and his going to the asylum might be attributed to his nervous trouble. I believed this mental trouble that he suffered from and that I treated him for for a number of years would eventually unbalance him. I considered that he was in serious trouble all along during the time that I treated him, and I advised him to that effect. His was a very serious case.</p> <p>Other witnesses testified as to nervous attacks and unconscious spells of the insured, that he said he thought they were caused by smoking cigarettes, and that he stopped smoking. Several witnesses testified to his good character. • The policy contained a clause providing that “If the age has not been understated and death shall occur later than three years from the date hereof, the liability of the company shall not be disputed on account of any statement in the application, except in case of actual fraud.”</p>

<p>Certiorari. Before Judge Reagan. Monroe superior court. August 29, 1902.</p>

<p>Ejectment. Before Judge Reagan. Butts superior court. August 20, 1902.</p>

<p>Petition for discharge. Before Judge Reagan. Pike superior court. August 18,1902.</p>

<p>Affidavit of illegality. Before Judge Butt. Taylor superior court. April 8, 1902.</p>

<p>The proprietor of a sawmill who institutes a proceeding to foreclose his lien on material furnished by another can not, upon a failure to prove a substantial compliance with his contract, recover a verdict in that proceeding for the value of his services, even though it appears that the defendant has received the product of the mill.</p>

<p>Garnishment. Before Judge Crisp. City court of Americus. May 20, 1902.</p>

<p>■When an appeal from the judgment of a justice of the peace has been entered, it is the duty of the justice to transmit the same to thé superior court; and when the attorney for the appellant, without authority from the justice so to do, hands the papers to such clerk, the appeal is not transmitted according to law, and should, upon motion of the opposite party therefor, be dismissed.</p>

<p>It is no cause for dismissing an appeal to the superior court from the justice’s court that the justice does not send up with the appeal papers a certificate or other evidence showing that the appellant has paid the costs which accrued in the trial of the case. The payment of the costs is a question between the magistrate and the appellant, and does not concern the opposite party.</p>

<p>• Injunction. Before Judge Candler. Morgan superior court. October 28, 1902.</p>

<p>■ Indictment for breaking and entering railroad-car. Before Judge Bennet. Ware superior court. June 25, 1902.</p>

<p>Exceptions to auditor’s report. Before Judge Butt. Talbot superior court. September 19, 1901.</p>

<p>Accusation of assault and battery. Before Judge Carter. City court of Baxley. October 16, 1902.</p>

<p>1. ' The verdict was supported by the evidence, and the judge did not err in overruling the motion for a new trial.</p> <p>2. ' Though the amendment to the motion for new trial was “allowed and ordered filed,” it does not appear that the trial judge approved it or certified its grounds as true. The assignments of error therein will, therefore, not be considered.</p>

<p>Indictment for cruelty to animals. Before Judge Holden. Madison superior court. October 31, 1902.</p>

<p>Indictment for keeping open a tippling-house on Sunday. Before Judge Henry. Walker superior court. - November 6, 1902.</p>

<p>1. When the statute which prevents the running of any freight-train and other named trains on Sunday over any railroad in this State has been violated, only the superintendent of transportation of such railroad, or the officer having charge of the business of the transportation department of that railroad, is liable to indictment therefor.</p> <p>2. An indictment preferred against the “ superintendent ” of the railroad and the “master of trains” of such railroad' jointly, although it is alleged that such officers “ had charge of the business pertaining to the running of trains ” on such railroad, is defective, and should be dismissed on demurrer.</p>

<p>Certiorari. Before Judge Seabrook. Berrien superior court. October 28, 1902.</p>

<p>Indictment for an assault with intent to rape. Before Judge Evans. Washington superior court. October 17, 1902.</p>

<p>1. Where a statute provides in general terms that the commission of a given act by any person shall constitute a penal offense, and then provides that the law thus framed shall not apply to a given class of persons, it is not necessary that an indictment based upon the statute should aver that the accused does not belong to the class of persons thus excepted from the operation of the law.</p> <p>2. The verdict was supported by the evidence, and the motion for a new trial contains no assignment of error which required the granting of a new trial.</p>

<p>1. It is noterror to refuse to grant a mistrial on account of remarks made by the judge in the presence of the jury, when such remarks are not applicable to the case and can not in any view injuriously affect the rights of the accused.</p> <p>2. The suspension of the trial of a criminal case to receive the presentments of the grand jury is not cause for a mistrial, when it is not shown how the rights-of the accused could have been- affected. This is especially true where no objection was made at the time.</p>

<p>Indictment for murder. Before Judge Felton. Crawford superior court. November 7, 1902.</p>

<p>Accusation of selling liquor. Before Judge Robinson. City court of Wrightsville. November 25, 1902.</p>

<p>Indictment for assault with intent to murder. Before Judge Butt. Harris superior court. November 10, 1902.</p>

<p>Indictment for murder. Before Judge Hansell. Colquitt superior court. November 7, 1902.</p>

<p>1. An essential ingredient of libel is malice, express or implied.</p> <p>2. Where a promissory note has been satisfied in full, and the payee, instead of complying with a promise to return it to the maker, negligently sends it to a bank “ for collection, with instructions to protest said note if not paid,” and it is accordingly protested for non-payment, such negligent conduct on the part of the payee amounts to an actionable wrong, if injury results therefrom to the maker’s financial standing.</p> <p>3. While in such a case it is the right of the injured party to maintain an action of tort for the recovery of all actual damages sustained by him, he is not entitled to punitive damages.</p> <p>4. That the note was one which was not subject to protest can constitute no valid defense by the payee, if it was in fact protested at his instance, and injury to the credit of the maker actually resulted.</p>

<p>Action for damages. Before Judge Reagan. Pike superior court. April 23, 1902.</p>

<p>1. As a general rule, all demurrers to petitions must be filed at the first term.</p> <p>(а) When the petition is so defective that there can be no lawful recovery thereon, an oral motion to dismiss the case, in the nature of a general demurrer, may be made at any time before verdict.</p> <p>(б) - An amendment to a petition which materially changes the cause of action, made at any stage of the case, opens the whole petition to demurrer at that time. Aliter, when the amendment makes no material change in the cause of action.</p> <p>(c) When in a given case the defendant orally “ moved the court to be permitted to demur” at the trial term, but did not state upon what ground the demurrer would be based, there was no error in overruling the motion.</p> <p>2. following the ruling in Fleming v. Roberts, 114 Ga. 634 (3), it is not error to refuse to rule out evidence tending to support the allegations of a petition, irrespectively of the question whether the petition is good in substance or not, or whether the evidence when admitted establishes a right to recover.</p> <p>(a) Under the decision in Crew v. Hutcheson, 115 Ga. 511 (2), the rule is different where evidence is offered in support of the allegations of a plea which is bad in substance.</p> <p>(6) The two decisions above referred, to are not reconcilable upon principle. The decision last referred to seems to be based upon the sounder reasoning and the better practice.</p> <p>3. While a trial judge may, within the restrictions prescribed in the Civil Code, § 5331, direct a verdict, this court will in no case overrule as erroneous a refusal to do so.</p> <p>4. A judgment of this court reversing a judgment of nonsuit does not adjudicate that the plaintiff is in law entitled to recover upon the facts alleged in the petition.</p> <p>(а) The practice of the common law, which authorized a nonsuit in any case when it was clear that in point of law the action was not maintainable, and this too when the objection appeared on the face of the record and might have been taken advantage of by motion in arrest of judgment, if ever of force in this State, does not now prevail.</p> <p>(б) The nonsuit of the Georgia practice corresponds in its office and effect to the demurrer to the evidence of the common law. On such a demurrer the only question is whether the evidence is sufficient in law to maintain the issue in fact made by the pleadings; and no exception can be taken to any defect in the pleadings, as the demurrer does not extend to them.</p> <p>(c) If the evidence supports the issue made by the pleadings, it is proper to overrule a demurrer to the evidence, or a motion for a nonsuit in the nature of such a demurrer, but it is not thereby adjudicated that the pleadings are in law sufficient to authorize a recovery.</p> <p>(id) “ Proving a case as laid ” will prevent a nonsuit, and may possibly prevent a motion for a new trial from being granted on the ground that the verdict is contrary to the evidence, but it will not authorize a recovery unless the case as laid so authorizes.</p> <p>(e) Mere proof of a fact will not in law authorize a recovery unless the existence of such fact so authorizes.</p> <p>(/) One of the prerequisites to a recovery by a plaintiff is that his pleadings and evidence be in substantial accord, but it is not the only prerequisite.</p> <p>5. A failure to demur does not confessthe action either in law or in fact.</p> <p>(а) A defendant who passes over, without demurring, a petition which is fatally defective in that it does not set forth a cause of action may still attack the same on this ground by an oral motion to dismiss the case at any time before verdict; and after verdict, by motion in arrest of judgment made during the term at which the judgment was rendered; or by assigning error on the judgment by it direct writ of error sued out in due time ; or within three years from the date of the judgment, by motion to set aside.</p> <p>(б) The object of a direct writ of error in such a case is to review and correct an error of law which is not cured by verdict; it is less to try the question between the parties than to try the judgment of the court below, to ascertain whether it'has been given in conformity to law. “ It is not the action to be judged, but the judgment.”</p> <p>(c) On such a writ of error the whole case as shown by the record is before the court of error for inspection and revision.</p> <p>(d) “Where the defect appears on the face of the declaration, it is settled law that a court of error is bound to notice it.”</p> <p>(e) When it is clear that in point of law the action will not lie, a judgment in favor of the plaintiff will be reversed on writ of error.</p> <p>(/) As to errors of law, the Supreme Court o£ Georgia has the same power under a direct writ of error as was possessed by those common-law courts which had jurisdiction to review the judgments of other courts upon writ of error.</p> <p>6. It is not the office of a motion for a new trial to call in question the legal sufficiency of the pleadings of the plaintiff. The case of Francis v. Wood, 75 Ga. 648, distinguished.</p> <p>7. A litigant who fails to take exception to the defects in the pleading of his adversary, “ at the proper time and in the proper manner,” and permits such a time to elapse that none of the remedies allowed by law for this purpose are available to him, will be forever thereafter estopped from calling in question the soundness, propriety, and in some cases even the legality of the judgment rendered against him. In such a case the opposite party may always avail himself of such an estoppel.</p> <p>8. When a case is in limine, and there is no estoppel of which either party may take advantage, whenever the judge sees that a party is about to prevail who in law is not entitled to prevail, that the law is about to be violated, that a grave injustice is about to be done under the forms of law, it is not only the right, but it is the duty, of the judge of his own motion to interpose and give the case such direction as will prevent a result which would 'be inconsistent with the law.</p> <p>(а) While it is the duty of counsel to protect the client from-wrong and injustice, it is much more the duty of the judge to save the law from being outraged. Neither the laches of the litigant nor the negligence of counsel will absolve the judge from his sworn obligation to administer the law.</p> <p>(б) A judge may be constrained to overrule a motion for a nonsuit, or, in some cases, to overrule a motion for a new trial on the ground that the verdict is contrary to the evidence, or to recognize an estoppel operating upon a litigant ; but when a case is at the threshold and is completely under the control of the judge, the law under no circumstances requires the judge to give the case a direction which he and every one knows is not founded upon law, rear son, precedent, or common sense. That a trial judge should ever be so situated is a condition of affairs of which the legal mind should not be able to conceive.</p> <p>(c) Any affirmative ruling by the judge resulting in a final judgment which is inconsistent with the law is erroneous, and may be properly complained of in a direct writ of error assigning error thereon.</p> <p>9. This court has no authority to decide any question on any writ of error, unless there are in the bill of exceptions “plainly and specifically set forth the errors alleged to have been committed,” and a “special assignment of error ” raising the question. The acts of 1889 and 1892 (Civil Code, §§5528 (1) and 5584) were in this respect merely declaratory of the law of this State prior to the date of the passage of such acts, as well as of the established common-law practice.</p> <p>10. If a petition is bad in substance, it is error to direct a verdict in favor of the plaintiff. If a plea is bad in substance, it is error to direct a verdict in favor of 'the defendant.</p> <p>(а) An assignment of error upon the direction of a verdict sufficiently presents for decision the question whether or not, under the pleadings and the evidence, the party in whose favor the verdict was directed is entitled to prevail.</p> <p>(б) An assignment of error in these words : “ the court committed error in directing a verdict for the plaintiff, under the pleadings in the case and theevideuce submitted to the jury,” is a “special assignment of error” presenting for decision the question whether the facts alleged in the'petition and shown by the evidence were sufficient in law to authorize a recovery by the plaintiff,</p> <p>(c) The ruling in the case of Phillips v. Railway Co., 112 Ga. 197, should not be extended. Properly limited, that -ruling is simply that a general assignment of error upon the direction of a verdict, which does not refer at all to the pleadings, will be construed as raising only the question as to whether the evidence established the allegations of the petition.</p> <p>11. The written acknowledgment of an existing liability, which in law is equivalent to a new promise to pay, “ must contain an unqualified admission of a present subsisting debt which the party is liable to pay, and not merely that the debt was once due."</p> <p>12. Admissions contained in offers made to settle an unquestioned claim, or one about which there is no pending difference as to the question of liability, are not offers of compromise, and are admissible in evidence. Aliter, where the claim is not admitted,-and it is apparent from the writing in which it is claimed that an admission occurs that it is the purpose of the writer by the offer to relieve himself of a claim about which he apparently knows -nothing, and the justice of which, while not in terms denied, is not in terms admitted.</p> <p>13. Applying the principles stated in the two notes immediately preceding, the letters relied on as a written acknowledgment of an existing liability were not in law sufficient for this purpose. Even if such letters, properly construed, could have the effect claimed, the admissions therein were “made with a view to a compromise,” and could not be lawfully used against the defendant.</p> <p>14. Under any view of the case, the petition set forth no cause of action, and the court erred in directing a verdict for the plaintiffs.</p>

<p>1. Where an administrator obtains an order from the ordinary to sell lands of his intestate, and at the sale a person buys and gives his note for the purchase-money, and, after his failure to pay the note at maturity, the administrator brings suit thereon but dies pending the suit, and an administrator de bonis non is appointed and made a party to the suit and obtains judgment therein, such administrator de bonis non has power and authority, when the judgment is satisfied, to make a deed to the lands without any further order from the ordinary or any other court. The prosecution of such a suit and collecting the judgment therein isa partial administration of the assets of the estate of the intestate.</p> <p>2. The delivery of the deed to the land and its acceptance by the purchaser sufficiently appears, relatively at least to the rights of one from whom the purchaser has borrowed money, when it is shown that the deed was recorded; that the purchaser applied for a loan of money and offered to secure it by a deed to the land, stating that he had acquired it by purchase and had fully paid for it; that this application was, by the agents of the purchaser sent to the lender with an abstract of title attached showing the execution and record of this deed ; that the loan was made on the faith of the application and abstract and the money accepted by the purchaser ; and that the recording fee was paid out of the money loaned.</p> <p>3. A general judgment obtained by the administrator de bonis non against the purchaser for a certain sum of money, which had been satisfied long prior to the execution of the deed by the purchaser as security for a loan, was no notice to the lender that the purchaser’s children had any interest in the land. Even if it had been the duty of the lender to examine the pleadings and the verdict upon which the judgment was rendered, they were not sufficient to constitute notice that the children had any interest in the land now in dispute.</p> <p>4. The evidence is conclusive that the lender was an innocent purchaser without notice, and the brokers who obtained the loan were, under the law and the evidence, the agents of the borrower and not of the lender ; consequently notice to them of the secret equity of the children was not notice to the lender.</p> <p>5. Where minor children reside with their father who is in possession of land to which he has the legal title, the children’s residence on the land is not sufficient to put a purchaser from the father upon notice or inquiry as to any secret equity they may have therein. When they become of age and leave the premises and reside for several years upon other lands, and, a few days before the execution of the deed by the father, one of them returns to the land, claims a right therein, and moves upon the land, the father continuing in possession and apparent control, such residence is not notice of the equity of the children.</p> <p>6. The plaintiffs in error having no interest in the land as against the defendant in error, but being in possession of the land, making crops thereon, and being insolvent, there was no error in appointing a receiver.</p> <p>7. There being a strong equity in the petition and equity having assumed jurisdiction, the court may enjoin the trial of a claim case between the same parties and relating to the same land, so that the whole controversy may be tried in one proceeding in the court of equity. Equity, when it assumes jurisdiction, will not parcel out the case but will retain it for complete determination.</p> <p>8. Under the facts disclosed by the record, there was no error in refusing to allow the defendants to give a damage bond to the plaintiff in lieu of the appointment of a receiver.</p>

<p>Certiorari. Before Judge Spence. Brooks superior court. May 5, 1902. . .</p>

<p>Complaint. Before Judge Roberts. Pulaski superior court. ' February 6, 1902,</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton superior court. November 14, 1902.</p>

<p>Accusation of misdemeanor. Before Judge Robinson. City court of Wrightsville. November 15, 1902.</p>

<p>Certiorari. Before Judge Reagan. Henry superior court. November 1, 1902.</p>

<p>Complaint. Before Judge Hart. Greene superior court. March 19, 1902.</p>

<p>When, by an order passed in term, a motion for a new trial is set to be heard on a particular day, and the same order requires the movant to present a brief of evidence to the judge for approval in vacation on another named day prior to that set for the hearing, the judge is without jurisdiction, on the day fixed for the presentation of the brief, to lawfully extend the time for such presentation ; and when thereafter he approves a brief of the evidence presented in accordance with an order granted on the day fixed by the order in term for the presentation of the brief, and proceeds to a hearing of the motion, it is error to refuse to dismiss the motion for a new trial on the ground that it is not accompanied with a brief of evidence presented and filed according to law.</p>

<p>Action for penalty. Before Judge Covington. City court of Moultrie. May 29, 1902.</p>

<p>Action for damages. Before Judge Candler. Thomas superior court. January 1, 1902.</p>

<p>Contract rights coupled with liabilities, or involving a relation of personal confidence between the parties, can not be transferred to a third person by one of the parties to the contract without the assent of the other.</p> <p>The trial judge erred in overruling the demurrer to the petition.</p>

<p>Certiorari. Before Judge Roberts. Montgomery superior court. May 2, 1902.</p>

Action for damages. Before Judge Eelton. Bibb superior court. January 8, 1902. The action was against Joseph and Simon Dannenberg and Isaac Block.

<p>Certiorari. Before Judge Reagan. Pike superior court. April _ term, 1902.</p>