Volume 117 — Georgia Reports

<p>Accusation of misdemeanor. Before Judge Lewis. City court of Mount Yernon. November 10, 1902.</p>

<p>A court to which an attachment is returnable has no authority to order a fund in the hands of the levying officer, realized from the sale of the property attached under the provisions of the Civil Code, § 5463 et seq., to be paid over to the plaintiff before there has been a final judgment on the attachment.</p>

<p>1. Where an auditor’s report of the evidence taken by him on the hearing of a case is specified in a bill of exceptions as part of the record and comes to the Supreme Court as such, the writ of error will not be dismissed upon the ground that “there isno such condensed and narrative brief of the evidence as the law requires. ’ ’</p> <p>2. The burden being upon a party excepting to an auditor’s report, lie has the right to open and conclude the argument, although he submits to the jury all the evidence contained in the report of the auditor, and the other party submits none.</p> <p>3. Where evidence has been submitted to the jury tending to support a defense not pleaded, the court, upon proper request therefor by the plaintiff, should instruct the jury not to consider such evidence.</p> <p>4. The general rule is that, in the absence of clear indications to the contrary, promises, each of which forms the whole consideration for the other, will not be held to be independent of one another ; and a failure of one party to perform on his part will exonerate the other from liability to perform.</p>

<p>Contest of election. Before Judge Roberts. Irwin superior court. March 14, 1902.</p>

<p>Indictment for misdemeanor. Before Judge Nottingham. City court of Macon. December 15, 1902.</p>

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

<p>Indictment for fornication. Before Judge Freeman. City, court of Newnan. December 6, 1902.</p>

<p>Accusatiou of vagrancy. Before Judge Hobbs. City court of Albany. December 20, 1902.</p>

<p>1. The disqualification of a judge by reason of relationship to the prosecutor-must, if known to the accused or his counsel, he suggested before verdict, and, if not then urged, will not be cause for a new trial.</p> <p>2. Even if, under the facts of this case, the judge was disqualified, it was too, late to raise the question for the first time in the motion for a new trial.</p> <p>3. There was sufficient evidence to support the verdict, and the court did not err in refusing to grant a new trial.</p>

<p>1. In order to relieve the plaintiff in error from the payment of costs in this court, it is necessary that a proper pauper affidavit shall be filed with the clerk of the trial court before the bill of exceptions and transcript of the record are transmitted to this court. No excuse will avail in case of failure to file the pauper affidavit before this time, and under no circumstances is this court authorized to receive the affidavit upon the call of the case here.</p> <p>2. A verdict in these words: “We, the jury, find the defendant guilty of misdemeanor,” upon a presentment for burglary, the allegations of which are sufficient to authorize a conviction for either larceny from the house or simple larceny, was so vague and uncertain that no legal judgment could be rendered thereon, and it was erroneous to overrule a motion in arrest of judgment.</p>

<p>Probate of will — appeal. Before Judge Reagan. Pike superior court. June 7-, 1902.</p> <p>cited Civil Code, §§ 3276, 3260-1; 1 Wms. Exrs. (R. & T. ed. 1895), 164-6, 311, 414; Jar. Wills (R. & T.), 67-69, 133; Schoul. Wills (3d ed.), § 255 a; Page, Wills, §§413 — 15; 6 Ga. 325, 359-60; 21 Ga. 567, 572—3; 53 Ga. 678; 59 Ga. 472; 60 Ga. 194; 69 Ga. 82.</p> <p>cited Civil Code, § 3276; 12 Ga. 69; 24 Ga. 330; 26 Ga. 697; Ga. 102; 53 Ga. 683; Schoul. Wills, § 584; Page, Wills, § 535.</p>

<p>Certiorari. Before Judge Bennet. Appling superior court. March 14,1902.</p>

<p>Action for damages. Before Judge Carter. City court of Baxley. March 8, 1902.</p>

<p>1. A check purporting to have been drawn upon a chartered bank of this State by the person whose name is signed thereto, and made payable to the order of a designated individual, has apparent “ legal efficacy,” though it be indorsed, not in the name of the payee, but in that of another person. Accordingly, an indictment charging the forgery and felonious uttering of such a check is not open to general demurrer; nor, in view of the system of code pleading which obtains in this State, is such an indictment fatally defective in that it fails to allege an intent on the part of the accused to defraud a particular person.</p> <p>2. Where under a penal statute an offense may be committed by the doing of any one of several forbidden acts, a conviction may be had upon an indictment which in a single count charges the accused with the commission of two or more of them, if there be satisfactory proof that he committed at least one of the acts therein specified.</p> <p>3. Proof that the accused is a person who has borne a good character is to be considered by the jury, not by itself alone, “ outside of the other evidence in the case,” but in connection with all other pertinent evidence tending to establish his guilt or innocence.</p>

<p>Indictment for murder. Before Judge Janes. Haralson supe■rior court. November 15, 1902.</p>

<p>Accusation of simple larceny. Before Judge Raines. City •Court of Dawson. December 26, 1902.</p>

<p>Accusation of simple larceny. Before Judge Hammond. City •court of Griffin: December 16, 1902.</p>

<p>Indictment for murder. Before Judge Brinson. Richmond superior court. December 30, 1902.</p>

<p>1. Objections to evidence, made in grounds of a motion for a new trial, can not be considered when the evidence is not set out in the motion or attached thereto as an exhibit, but reference is made to the brief of evidence to indicate what evidence is the subject of objection.</p> <p>2. When a document purporting to be a brief of evidence is extensively interspersed with statements and arguments of counsel and rulings of the court on evidence, and has attached thereto long documents which have not been briefed, and it is not material to any question made in the case that the documents should be set out in extenso, the paper will not be treated by this court as a brief of evidence, and no question made in the record which is dependent upon the evidence will be decided.</p> <p>3. Where the undertaking of an official bond is to pay over to the persons authorized to receive it ail money collected by the official by virtue of his office, the sureties on the bond are liable, up to the amount of the bond, for the failure of the official to pay over money which he has collected, even though he may have previously collected and paid over a sum greater than the amount of the bond. The undertaking of the sureties is to see that the official pays over all money which he collects, and their liability does not cease when an amount equal to the penal sum named in the bond is collected and paid to the proper authorities.</p> <p>■4. The bill of exceptions sued out by the plaintiff in the court below, whether treated as a main or cross-bill of exceptions, was certified in^_due time, and no sufficient reason has been shown for dismissing the writ of error thereon.</p> <p>6. In cases brought in the city court of Baxley for the principal sum of one hundred dollars or less, the defendant is not liable to pay more than justice-court costs; but there is no provision, either in the act establishing that court or in the general law of the State, authorizing a judgment to be entered against the plaintiff for the difference between justice-court costs and what would have been the usual city-court costs in the case.</p>

<p>Complaint. Before Judge Bennet. Ware superior court-April 21, 1902.</p>

<p>1. Where a witness lives in one place, but pursues his regular daily vocation or work in another, where he has established a general reputation, another witness, called for the purpose of impeaching him for general bad character, who does not know his general reputation in the neighborhood where he lives, but does know his general reputation in the neighborhood where he works, is competent to testify upon the subject.</p> <p>2. Upon the trial of an action against a railroad company for personal injuries, it is erroneous to charge the provisions of the Civil Code, § 2321, even with the words, “ the presumption in all cases being against the company,” omitted therefrom, when it appears that the damage complained of was not caused either “by the running of the locomotives, or cars, or other machinery of such company,” or “ by any person in the employment and service of such company.” Even if the damage complained of were so caused, such a charge would be erroneous in such a suit brought by one of the railroad company’s own employees.</p> <p>3. A master who, after purchasing from another a permanent structure or plant for the carrying on of a particular business, puts his servant to work therein or thereon, is not liable to such servant for injuries sustained by reason of a latent defect therein, if the master has exercised ordinary and reasonable care to detect the same and has failed to discover it.</p>

<p>Equitable petition. Before Judge Bennet. Ware superior court. June 23, 1902.</p>

<p>Certiorari. Before Judge Bennet. Glynn superior court. June 30, 1902'.</p> <p>Berrie, sheriff of the city court of Brunswick, suing for the use of the Stewart Iron Works and of the Cambridge Tile Manufacturing Company, plaintiffs in certain executions issued on judgments of that court, brought an action therein against Taylor, his deputy,, as principal, and against others as securities, on a bond given for the faithful performance of Taylor’s duties as deputy-sheriff. A general demurrer to the petition was sustained. The plaintiff took the case to the superior court by certiorari; the certiorari was overruled, and he excepted. The material allegations of the petition are stated in the following opinion.</p>

<p>1. Where a woman sues out a warrant against a man charging him with being the father of her bastard child, they may settle the case by his paying her money or giving his promissory note. If such note be given, there is sufficient consideration, both moral and legal, to authorize a recovery thereon.</p> <p>2. The mere fact that the note is given while the putative father is under arrest under the warrant is not such duress as will render it void.</p>

<p>Complaint. Before Judge Bennett. Glynn superior court. June 30, 1902.</p>

<p>Complaint for land. Before Judge Bennet. Appling superior court. September 18, 1901.</p>

<p>Action for damages. Before Judge Reynolds. City court of Waycross. July 11, 1902.</p>

<p>1. Where a suit in ejectment has been begun against a defendant who, pending the litigation, becomes a non-resident of this State, service'of^an,-ancillary petition praying for equitable relief may be made by servingJ,he.'attorney representing the defendant in the main suit.</p> <p>2. It is competent to prove the failure of a party to return anypropertyfortaxation, by the oral evidence of a witness who swears that he has examined the tax-books and that no such returns appear of record.;</p> <p>3. Where one who has purchased land under a deed of trust to secure a debt’is wrongfully excluded therefrom by the party in possession, who is insolvent and is collecting and dissipating the rents of the land, and the purchaser has been compelled to bring suit in ejectment to recover the land, a court of equity should, upon a proper showing, grant the prayers of a petition ancillary to the action of ejectment, for an injunction to restrain the defendant from collecting the rents, and for the appointment of a receiver to take charge of the property and collect and preserve the rents and hold them to abide the final judgment in the case.</p>

<p>Complaint for land. Before Judge Lumpkin. Fulton superior court. January 23, 1902.</p> <p>Dave Horton and Maggie Horton, who was alleged to be the daughter of his deceased wife, Savannah Horton, brought suit against Murden for the recovery of a lot on Fortune street in the city of Atlanta, alleging that the property formerly belonged to Julia Reynolds; that she, having become in arrears for taxes on the lot, applied to Murden for money with which to pay the taxes, and that Horton advanced the necessary money; whereupon she executed a paper in these terms: “Atlanta, Ga., Sept. 15, 1876. I, Julia Reynolds, I this Sept. 15, 1876, turn over in the hands of my sister Savannah Horton, and her husband Dave Horton, two deeds, and lot; my lot was to be sold, and they bought it in for me, and as it now stand, and stands yours until I redeem it in the year-1879, Sept. 15, that are the day that are set apart; if I don’t redeem it at that date you both can sell it, or do just as you please; this will cover the whole debt the sum of $35.00. My lot 50 front-of Fortune street, running back 155 feet, joining on the north side by Murden and on the south side by Horton ; and I Julie Reynolds-sign my hand to it X here Witness by Edmond Hill his X mark. ■W. Murden, N. E. Latimore.” The plaintiffs further alleged, that-Julia Reynolds put the lot into the actual possession of David Horton and Savannah Horton, his wife, to have and to hold as their own property; that they took or received it into their own possession, and held it as their own property for many years and remained in possession until the death of Julia Reynolds, but, in some way which petitioners do not know or understand, the defendant got the lot into his possession and began to occupy it, and refuses to deliver possession or to pay the rents, of the value of $200 per year; that the plaintiffs are the sole heirs at law of Savannah Horton, etc. They prayed for a judgment declaring the title to be in them, that possession be restored to them, for mesne profits, etc. The defendant demurred to the petition, on the ground that it set forth no cause of action. The demurrer was sustained on the ground that “ the deed on which the plaintiff relied was not sufficient on its face to carry title to or describe sufficiently the propérty involved in the suit.” The plaintiffs excepted.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. February 1, 1902.</p> <p>The plaintiff was a passenger on a trolley-car at night, and was injured by the car leaving the track and running against a wall. He alleged that the railroad company was negligent, in that the brake-chain was not securely fastened to the brake-rod, and the brake-rod was not in proper condition; that the motorman and conductor failed to apply the brake or reverse the car or stop it, and the conductor pulled the trolley from the wire; that the car was permitted to run at an unsafe rate of speed; that the outside rail in a curve of the track was more elevated at one point than at the point where elevation was most needed; and that the rails were old, worn, not properly joined, and unsafe. The evidence tended to prove that the motorman, on approaching a cross-street and a curve in the track, turned the brake-handle to apply the brakes to the front wheels. They did not apply, because (as was afterward discovered) a nut had slipped from a bolt that passed through the brake-staff and held the brake-chain, allowing the chain to drop, so that turning the handle would not wind up the chain. Finding that the brake did not work, the motorman, following his practice, rang the bell three times, thus giving the usual signal for the conductor to put on the rear brakes. Instead of .so doing, the conductor pulled the trolley from the wire, extinguishing the lights on the car. The motorman then reversed the car, turned the controller handle round, shut it off, and shouted to the conductor to put on the rear brakes; but he did not do so. i Doing so would have stopped the car. The car would have moved backward on*'being reversed, if the trolley had been on the wire. The motorman could have reversed and stopped the car immediately on finding that the brakes did not work in front, without signaling to the conductor. The conductor, according to his own testimony, did not hear the three-bell signal; if he had heard it he could have stopped the. Car; and the first he knew of anything wrong was, that the trolley slipped from the wire, and he was trying to replace it'when the derailment occurred. The evidence as to the condition.of the car a ■> and the track tended to show that the car was new; that an examination of it, including the bolts and nuts, had been made f on the night next preceding that of the derailment, and everything about it was -found to be in good condition ; and that the track was properly constructed, safe, and in good condition.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. March 10, 1902.</p>

<p>Complaint — appeal. Before Judge Lumpkin. Fulton superior court. March 13, 1902.</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court. April 7, 1902.</p>

Action for breach of contract. Before Judge Calhoun. City court of Atlanta. May 19, 1902. ' Dewald & Co., brokers in Atlanta, wrote to the defendant company, proposing to sell their matches, and asking for samples, quotations, and rate of brokerage. The defendant answered: “We have forwarded you to-day by express prepaid samples of matches in 100, 200, and 500 sizes. You will note that the 200 are exceptionally large boxes, being more than full count.

<p>‘ Complaint. Before Judge Reid. City court of Atlanta. June 27, 1902.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta.' June 23, 1902.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. May 15, 1903.</p>

<p>Attachment for contempt. Before Judge Reagan. Monroe superior court. December 23, 29, 1902.</p> <p>In a petition against Loyd and others it was prayed that the defendant be enjoined from using or interfering with certain property until the further order of the court, and that “as there are no trustees to hold and control said property, J. F. Lancaster, or some other fit person, be appointed receiver for the same, to control said property and operate as in his judgment may seem best for the school on the same, as in the trust is intended, until the court can appoint such discreet and proper trustees for the management of said property as to the court may seem meet and proper.” The property in question consisted of two buildings, one a dormitory and the other a schoolhouse, which were occupied by Loyd. The court passed an order requiring defendants to show cause at a stated time why the prayers of the petition should not be granted, and, in the meantime and until the hearing, enjoining the defendants as prayed for, appointing J. F. Lancaster temporary receiver to hold and preserve the property until further order of the court, and directing the defendants to turn over to the temporary receiver the property described in the petition. After-wards the court passed an order that the order appointing a temporary recéiver be modified “so that the temporary receiver is directed to allow the defendant Loyd to remain in possession of said property and teach school therein until the further order of this court.” Finally the court passed an order as follows : “ Upon considering the within case, it is ordered that the following persons be and they are hereby appointed trustees to take charge of the property described in the petition, to wit, [naming them], hold and preserve the same for the purposes set forth in the original deed of trust, rent out the same for school purposes if necessary; and it is further ordered that the temporary receiver, J. F. Lancaster, turn over to said trustees the property in controversy.” Loyd then brought the case to the Supreme Court. 116 Ga. 728. Lancaster, as receiver, afterwards filed a petition to the judge of the superior court, in which he alleged that Loyd continued in possession of the dormitory and of the public hall on the second floor of the school building, and refused to deliver possession of the same when demanded by the petitioner as receiver, and that this was a violation of the order of the court; and he prayed that Loyd be required to show cause why he should not be punished for contempt. In answer to the rule to show cause, Loyd contended that the plaintiffs in the original petition, by an amendment asking for the appointment of trustees, virtually abandoned their prayers for injunction and receiver, and that, under the final order of the court, there was no injunction or receiver. The court, after hearing the case, adjudged that the order appointing a temporary receiver and granting a temporary injunction, and the order modifying the same, were still of force; that it was the duty of the defendant to turn over to the receiver the property mentioned in the petition, and the duty of the receiver to keep the same until the further order of the court; that the defendant be allowed to teach school in the schoolroom on the first floor of the school building, and to occupy the dormitory as a residence, until the further order of the court, and that he surrender possession of the hall of the school building to the receiver; and that on compliance with this order the defendant be acquitted and discharged. Loyd filed a bill of exceptions complaining of this judgment. Afterwards Lancaster, as receiver, filed a petition alleging that Loyd had disobeyed the order of the court, in removing benches and other articles from the hall óf the school building, and praying that he be punished for contempt. Loyd filed an answer, and the court, after hearing the the case, passed an order adjudging Loyd guilty of contempt, directing that he be imprisoned in jail for ten days, and providing that he be discharged from imprisonment on payment of fifty dollars to the sheriff. To this judgment also Loyd excepted.</p>

<p>Indictment for murder. Before Judge Evans. Bulloch superior court. December 1, 1902.</p>

<p>Petition for leave to sell land of intestate — appeal. Before Judge Bennet. Glynn superior court. May 20, 1902.'</p>

<p>1. Where an accident insurance company issues a policy for separate periods of two, two, three, and five months, to a railroad employee who agrees to pay premiums every month for four months, one for each of the insurance periods, and who gives an orderon the paymaster of the railroad company to pay the premiums out of his wages monthly for four consecutive months, and the first premium is paid under this order ; and where the employee does not earn any wages for the second month specified, to be applied to the payment of the premium for the second period, and in consequence thereof the. paymaster has no funds with which to pay that premium ; and where the policy stipulates that “ all claims for injuries received during any period [except the first] for which the respective premium shall not have been actually paid shall be forfeited to the company,” and where the 'employee is killed by an accident on the railroad during the second period, and no premium for that period has ever been paid, the beneficiary can not recover on the policy.</p> <p>2. Where exception is taken to the grant of. a nonsuit, the admission of evidence over the objection of the plaintiff will not work a reversal, when it appears that the nonsuit should have been granted whether such evidence was admitted or excluded.</p>

<p>Foreclosure of mortgage. Before Judge Lumpkin. Fulton superior court. January 9, 1902.</p> <p>Bluthenthal & Bickart instituted proceedings to foreclose a mortgage given to them by Mrs. McDonald. In her plea she alleged,, that her husband had been in negotiation for the purchase of a barroom and fixtures from the plaintiffs ; that, being unable to give the required security, he repeatedly entreated her to furnish the security, she all the while protesting that she did not want to go on the notes as security, or have anything to do with the transaction; that she had little time to give thought to the matter, and her husband induced her to go, without delay, to the office where the papers were executed; that after her arrival there, time was not given her to read the papers after they were handed to her, but she was told by one of the plaintiffs’ agents to “ hurry up and sign the papers, ” that her husband had read them; whereupon her husband told her he was buying the property, that she was only signing as his security, and that it would be all right; and, acting on these inducements and instructions of the agent representing the plaintiffs, she signed the papers as quickly as possible (the mortgage sought to be foreclosed and the notes to secure which it was given), believing that the debt was her husband’s and not hers; that she acted in this hasty manner by reason of her husband’s undue influence and the representations there made, and for that reason she charges duress and fraud in the procurement of the mortgage, and that the plaintiffs had notice of the same; that the bar fixtures were solely for the use of her husband, and that she has never derived any benefit or profit from the business, and has never claimed or demanded any. The plea was demurred to as not sufficiently setting up fraud, duress, and undue influence. The judgment of the court recites, that, on the hearing of the special demurrers to the defendant’s plea, it appeared that she, being ill, was unable to make an affidavit to an amendment to meet the special demurrer, and it was thereupon agreed in open court, in order that-the legal questions might be fully passed upon, that the plaintiffs had conveyed by bill of sale to the defendant the stock of goods to secure which the notes and mortgage were made; that the purchase-price was also secured by the defendant’s executing a mortgage on the stock so purchased by her; and that she never returned said stock or any part thereof to the plaintiffs ; that the transaction of giving the mortgage and notes was contemporaneous, “ although the defendant contends she never received the bill of sale, but it was in the possession of her husband, and she had never been in possession of the stock. ” The court struck the plea and entered a decree of foreclosure, and the defendant excepted.</p>

<p>Where a contract between a telephone company and one of its subscribers' provided that the latter should pay to the former a specified sum as an annual rental for exchange service charges, payable in quarterly installments in advance, and that if the service should be interrupted otherwise than, by negligence or willful interference of the subscriber, a rebate at the rate specified for the “ rental ’ ’ should be made for the time such interruption continued after reasonable notice in writing to the company, but no other liability should in any case attach to the company, the subscriber could not escape liability for the stipulated “ rental ” because of bad, improper, or useless service, without first giving to the company notice in writing of" an interruption of service. Hence, in a suit by the company against the subscriber, for an amount claimed to be due the plaintiff for telephone service, upon the defendant’s admitting that he “ never gave the company any written notice of interruption of service before this suit was filed,” testimony offered by him tending to show bad, improper, or useless service was inadmissible, when proper objection was-made thereto.</p>

<p>The law and the evidence submitted demanded the judgment which was rendered by the court without the intervention of a jury.</p>

<p>1. Under a contract for the sale of a machine, which provides that if it should! not operate “ as recommended, then after four months from ” the date the contract goes into effect “it shall be returned to the” seller, the purchaser has a reasonable time after the expiration of the four months within which to-return the machine.</p> <p>2. A mere notice by the purchaser under such a contract to the seller that the machine is held subject to his order is not a compliance with that portion of the contract which stipulates that the machine may be returned if it should' not operate as recommended.</p> <p>3. The evidence, demanded a finding in favor of the plaintiff, and there was no-error authorizing thejreversal of the judgment in its favor.</p>

<p>Equitable petition. Before Judge Lumpkin. Eulton superior <court. April 28, 1902.</p>

<p>The Supreme Court has no jurisdiction to pass upon an assignment of error complaining of the striking of an,answer made in response to a rule to show cause why the legal representative of a deceased plaintiff should not be made a party plaintiff to the case, or of the granting of ah order making the representative such a party, when there has been in the trial court no final judgment in the original case.</p>

<p>A suit on a note which provides for.the payment of one hundred dollars principal, besides intei-est and “ all costs of collection, including ten per cent, attorneys’ fees,” where the plaintiff, without objection, flies an amendment setting up that he has not complied with the act approved December 12, 1900 (Acts 1900, p. 53), by giving notice to the defendants of his intention to sue for attorneys’ fees, and expressly waiving his right to recover such fees, is within the jurisdiction of a justice’s court.</p>

<p>In a suit against a railroad company for damages alleged to have been sustained to goods shipped by the plaintiff over its line, where the petition sets forth a good common-law action, the fact that it also alleges that the defendant “ received [the goods] as in good order at . . a station upon its line, and ’ transported same to ” their destination, does not make the action one brought solely under the terms of the Civil Code, § 2298.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atr lanta. June 25, 1902.</p>

<p>A petition alleged that the defendant was indebted a stated sum “ upon a mutual account based on a course of dealing wherein each party has given credit to the other on the faith of indebtedness to him, as will more fully appear from the bill of particulars ” attached to the petition. The bill of particulars attached showed numerous items of indebtedness from defendant to plaintiff, and also several items of indebtedness from plaintiff to defendant. The last item in the account against the defendant was within four years from the time the petition was filed : Held: (1) That the allegations of the petition, taken in connection with the bill of particulars, were sufficient to authorize the admis.sion of evidence to show that there was a course of mutual dealing between the parties, wherein each had given credit to the other on the faith of the indebtedness of the other; and that a demurrer raising the question that the account was barred by the statute of limitations was properly overruled. (2) That the items of indebtedness of plaintifE to defendant, set forth merely to show a course of dealings, need not be set forth with the same particularity as the items of indebtedness of the defendant to the plaintiff, for which judgment is prayed.</p>

<p>As to felonies, by the Penal Code, § 1041, and as to misdemeanors, under general principles of criminal law, if a defendant is found guilty of more than one offense, and the imprisonment unaer one sentence is to commence on the expiration of the other, the sentence must so state; else the two punishments will be executed concurrently, and the defendant be entitled to his discharge on the expiration of the longest term.</p>

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

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. July 30, 1902.</p>

<p>1. The intent of the parties is the true test of a partnership, which, therefore, may be created by a contract giving rights or imposing obligations differing from those from which the law ordinarily infers a partnership.</p> <p>2. - Even if there be no “ joint ownership, use, and enjoyment of the profits of undivided property,” but tlie parties in a joint undertaking mutually regard their arrangement as a partnership, the law will take them at their word, and apply the rules applicable to that relation.</p> <p>3. If' one who originally contributed no capital, but was to receive a part of the profits as compensation for his services, permits a portion of such profits-to remain in the business as firm assets, he thereby acquires a joint ownership in the undivided property, and becomes a partner within the meaning of the last clause of Civil Code, § 2626.</p> <p>4. A surviving partner is entitled to the possession of the firm assets, but is bound speedily to convert the same into cash, pay the debts, and, within a reasonable time, come to an accounting with the administrator of the deceased partner.</p> <p>5. If a surviving partner bought new goods, sold on credit, and continued the; business beyond the time allowed by law for winding up the partnership affairs, the administrator of the deceased partner would be entitled to an injunction against such illegal acts, if it appeared that the surviving partner was insolvent, or that there was othe” reason to apprehend loss to the estate.</p> <p>6. Receivers are not appointed as matter of right, but to preserve rights; and even if the surviving partner continue the business beyond the time allowed by law, the court will not disturb his possession if it appear that he is solvent that the assets are not being wasted, and that he can comply with any final decree in favor of the deceased partner’s estate.</p> <p>7-'. If a surviving partner continues the business beyond the time allowed bylaw, the final account with the administrator should be stated as of the day when the settlement should have been made, the administrator being entitled, to the sum then due, with interest; or at his option he may take such principal sum with his proportion of the profits.</p>

<p>'This was an action for the recovery of personal property, and while the evidence might have been sufficient to show a conversion by the defendants, it did not show with certainty that this conversion took place prior to the bringing of the suit. For this reason, it was error to direct a verdict in favor of the plaintiffs.</p>

<p>Petition for injunction. Before Judge Dart. Wayne superior court. ■ August 22, 1902.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. May 17, 1902.</p>

Action for damages. Before Judge Reid. City court of Atlanta, July 8, 1902. The action was for the homicide of the plaintiff’s son, who it was alleged was killed by the negligent running of a train of the defendant company. From an amendment to her petition it appeared that her deceased son was an illegitimate child.

<p>Action for malicious prosecution. Before Judge Reid. City court of Atlanta. April 24, 1902. .</p>

<p>The evidence, though conflicting on some of the material issues in the case, was sufficient to authorize a finding that the presumption of negligence, which arose against the defendant by proof that the death of the deceased was caused by the running of a locomotive of the company, was not rebutted.</p>

<p>1. It being shown that a justice’s court regularly met on the 14th day of July,, but that the magistrate was unable on that day to dispose of all the cases ready for a hearing, it is to be presumed, nothing to the contrary appearing, that a particular case tried on the 19th of July was heard while the court was stilL lawfully in session.</p> <p>2. The writ of certiorari does not lie to set aside a verdict or judgment which is not merely erroneous, but absolutely void.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. January 25, 1902.</p>

<p>Complaint. Before Judge Calhoun. City court of Atlanta. February 1, 1902.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. March 31,1902.</p>

<p>Complaint for land. Before Judge Lumpkin. Fulton superior court. April 16, 1902.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. April 12, 1902.</p> <p>cited Civil Code, §§ 3861, 3859, 3874; Columbus v. Jaques, 30 Ga. 506 (2); Savannah R. Co. v. Shiels, 33 Ga. 601; Dreisbach v. Ross, 195 Pa. St. 278; New Ipswich Factory v. Batchelder, 3 N. H. 190; Hughes v. Lambertville E. L. Co. (N. J. Ch.), 5 Am. Elec. Cas. 626; Stiger v. Refrigerating Co. (Tenn.), 14 S. W. 1087; Fechet v. Drake (Ariz.), 12 Pac. 694, s. c. 2 Am. Elec. Cas. 331; People v. Wemple, 129 N. Y. 554, s. c. 4 Am. Elec. Cas. 570; 2 Wood, Nuis. (3d ed), §§ 650-54.</p> <p>Negligence of defendants not the proximate cause of injury to plaintiff : Cooley, Torts (2d ed.), 75 ; 21 Am. & Eng. Ene. L. (2d ed.) 486 ; 8 Id." 571-2 ; Civil Code, §§ 3913, 3914; Southern Ry. Co. v. Webb, 116 Ga. 157; Central Ry. Co. v. Edwards, 111 Ga. 528, 533; Central Ry. Co. v. Price, 106 Ga. 176; Mayor v. Dykes, 103 Ga. 847; Ga. R. Co. v. Hayden, 71 Ga. 518 ; Hopk. Pers. Inj. §§ 14, 15, 16; Wat. Pers. Inj. §§ 33, 58, 71; 1 Jag. Torts, § 26, p. 245, § 130 (a, b), pp. 372-4; 1 Add. Torts, §§ 10-12; Cuff v. R. Co., 10 Am. Rep. 215. On the proposition stated in the headnote: Ashley v. Harrison, 1 Esp. 48; Vickers v. Wilcocks, 8 East, 1; Dale v. Grant, 34 N. J. L. 142; Rockingham Insurance Co. v. Roscher, 39 Me. 253, 256 ; Conn. Ins. Co. v. R. Co., 25 Conn. 265 ; Anthony v. Slaid, 11 Met. 290 ; Kahl v. Love, 37 N. J. L. 5.</p>

Petition. Before Judge Lumpkin. Fulton superior court. May 6,1902. The petition was by Maud S. Orr against F. J. Cooledge, Greer Martin, and C. A. McDaniel. It alleged: “(1) That the defendants are each and all residents of said county.

<p>Action of deceit. Before Judge Beid. City court of Atlanta. June 23, 1902.</p>

<p>1. Under the Civil Code, § 3621, a clerk of a court of record in another State may attest the execution of a deed conveying lands in this State. If he sign the deed as a witness, and then certify under the seal of his court that as a witness he attested the deed and that the court of which he is clerk is a court of record, this is a substantial compliance with the code.</p> <p>2. Under a proper construction of this section of the code, the certificate of the clerk, under the seal of the court, is prima facie evidence that the court is a court of record.</p> <p>3. Where, a security deed is given to secure a note, and, after judgment is obtained on the note, the land reconveyed, and execution levied thereon, a claim is filed by a third person, proof of possession of the land by the grant- or in the security deed at the time of the execution of such deed is sufficient to make a prima facie case against the claimant in favor of the plaintiff in fi. fa.</p> <p>4. The description of the land in the levy was, under the law and the evidence, sufficient.</p> <p>6. There was no error in the admission of evidence, and the evidence authorized. the verdict.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. June 18, 1902.</p>

<p>1. A recovery can not be had against a railroad company for the homicide of a child who, while in a safe place, is, on the approach of a train, ordered by his sister in charge of him to sit down, and who obeys the order and. sits down until the train is very near him, when he rises, runs across the track, and is killed by the engine.</p> <p>2. Applying the strictest rules of diligence against the railroad company in regard to trespassers upon its track, there was no evidence to support a verdict against the company.</p>

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

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

<p>1., Where a second new trial was granted on a specified ground and expressly overruled on every other ground of the motion therefor, and the original bill of exceptions to this court assigns error only upon the grant of a new trial, no cross-bill of exceptions being taken to the action of the court upon those grounds of the motion which were overruled, this court will pass only upon the question raised in the ground of the motion upon which a new trial was granted.</p> <p>2. A plaintiff can not recover damages for the consequences of negligence which, by the exercise of that degree of care required of him by law, he could have avoided.</p>

<p>Habeas corpus. Before Judge Robinson. City court of Wrightsville. November 24, .1902.</p>

Indictment for murder. Before Judge Janes. Polk superior ■court. August 4, 1902. Patton was indicted for the murder of Charley Cuzzort, and was found guilty, with a recommendation of life imprisonment. He ■excepted to the refusal of a new trial. The other material facts - will appear from the opinions following.

<p>Indictment for cheating and swindling. Before Judge Bower. City court of Bainbridge. December 12, 1902.</p> <p>Faster and Crawford were convicted under an indictment charging them with the offense of cheating and swindling, for that, on the 22d day of September, 1900, they “did falsely and fraudulently represent to Chason & Reynolds, a firm composed of Thomas Chason and J. F. Reynolds, that said Faster and Crawford were the owners of all timber on place known as the Harvey place, in said county and State, and bounded on the east by lands of Adam Rambo and Joe Collier, on the north by the lands of A. Fort and. J. R. Crawford,” further describing it by its' western and southern boundaries, “and did thus induce said Chason and Reynolds to. purchase all of said timber on said land,” of a stated size, “for-the sum of five hundred dollars ; when in truth and in fact two-thirds of said land and said timber was not the property of said Faster and Crawford, which fact was well known to said Faster and Crawford at the time they made said representations, and by said deceitful means and artful practices did cheat and defraud said Chason and Reynolds of the sum of three hundred and fifty dollars, the value of the timber that did not belong to said Faster and Crawford, contrary to the laws of said State,” etc. From tli& evidence it appeared that on September 22, 1900, Faster and Crawford sold to Chason & Reynolds the timber on a tract of land, which, in the deed then made by them to the purchasers, was. described in the same terms as in the indictment. In the preceding May, or shortly afterward, Chason approached Faster, who held a bond for title to the “ Harvey place ” from Crawford, and also-approached Crawford, with a view to buying the timber on the tract in question, and was told that he could get it for the amount-due by Faster to Crawford, which was about $750; and, according to the testimony of Chason, Crawford at that time represented to him that the tract contained 250 or 300 acres, also that it contained 250. or 350 acres, and Faster showed him the boundaries,, but there were no further negotiations then. There was evidence that similar representations were made to Reynolds. After these-representations had been made, and before the sale, there was a dispute between Crawford and Hearn, a lessee of Fort, whose-property bounded the “ Harvey place ” on the north, as to how far south Fort’s land extended, Hearn contending that it extended a certain distance south of what Crawford contended was the true line between the two tracts; but Crawford, after investigation of the matter, admitted that Hearn’s contention was correct, and so stated in a communication written to Hearn in August, 1900. There was evidence that he admitted this to Faster before the sale.. The land as to which the dispute arose between Crawford and. Hearn, and which Crawford afterwards admitted was a part of Fort’s land, was bounded on the east by Collier’s land. The “ Harvey place ” was bounded on the east by Bambo’s land, but no part of it was bounded by Collier’s land. The deed conveying the timber to Chason and Beynolds was written by Chason in the presence of Faster and Crawford, and, according to Chason’s testimony, when he was about to insert the boundaries in the deed, Crawford said, “bounded on the east by Adam Bambo.” Chason said, “No, that line goes back to Joe Collier’s house and the Adam Bambo land as well; it runs clear up in front of Joe Collier’s place.” Crawford said, “ Yes, that’s so;” and Chason then inserted the words, “ bounded on the east by lands of Adam Bambo and J. Collier, on the-north by lands of A.-Fort,” etc. Nothing was said at that time as to the number of acres in the tract. There was evidence that Chason and Beynolds did not know at the time of the sale, but discovered afterwards, that the “ Harvey place ” did not extend to the boundaries pointed out by Faster on the north, and did not contain the number of acres stated, that there was a very large deficiency in. the quantity of land, and that a large proportion of the timber they thought they were buying was north of the “ Harvey place.” The consideration paid by them was $500. Crawford, in his statement to the jury, said: “ When I went to fix up the lease, Dr. Chason wrote the boundaries of the land. When he came to the eastern boundary I said, ‘ Adam Bambo,’ as I did not know whether it went to Joe Collier’s or not. Dr. Chason said he did know, and he proposed to put down Joe Collier’s name. When he struck the north boundary he said, ‘ bounded on the north by A. Fort.’ Now, because when Jeff [Faster] came out there for me to make the lease he had agreed to let Dr. Chason have all the timber on the lot his house was on, to make up for the land we had lost, and because I had told Dr. Chason I would not take less than $733, with interest, when we talked about the trade at first, and we were getting only $500, I took it that Dr. Chason knew we had lost that land; and when he and Jeff traded he got a strip of land in addition to what he was to get when we first talked. . . Nothing was said about that part, because I thought he knew about it.”</p> <p>Each of the defendants made a motion for a new trial, on the grounds that the verdict was contrary to law and the evidence;. and that the court erred in refusing to give the jury certain instructions requested, and in certain rulings and charges, the nature of which is sufficiently indicated in the following opinion.</p>

<p>Indictment for murder. Before Judge Foster. .Walton superior court. December 11, 1902.</p>

Indictment for murder. Before Judge Dart. Ware superior court. December 16, 1902. To the facts stated in the opinion it is sufficient to add the following : The indictment was for killing John Nettles. From the evidence it appeared that he was shot by the accused in June, and that in the ensuing October he died of the wounds thus inflicted.

<p>1. Where in a criminal case two distinct and independent theories of defense ' are raised by the prisoner’s statement, each having its foundation solely in that statement, it is not error, in the absence of a proper request, for the trial judge to wholly fail to charge as to one of these theories, although he may have charged the law applicable to the other.</p> <p>2. The evidence warranted the verdict.</p>

<p>1. Where one entrusted with money hy another fraudulently converts it to his own use, he is guilty of larceny after trust, though he may have fraudulently induced the delegation of the trust with intent to so convert the money.</p> <p>2. The evidence warranted the verdict, and the refusal of a new trial was proper.</p>

<p>Indictment for burglary.. Before Judge Roan. Fulton superior court. November 21, 1902.</p>

<p>Accusatiou of gaming. Before Judge Covington. City court •of Moultrie. February 2, 1903.</p>

<p>Indictment for murder. Before Judge Roan. Fulton superior court. January 17, 1902.</p>

<p>Accusation of selling liquor. Before Judge Carter. City court of Baxley. December 30, 1902.</p>

<p>Yalidation of bonds. Before Judge Gober. Gordon superior court. June 26, 1902. Before Judge Butt. ' Muscogee superior •court. December 30, 1902.</p>

<p>Action for damages. Before Judge Bennet. Coffee superior court. June 19, 1902.</p>

<p>Mandamus. Before Judge Evans. Jefferson superior court. 'October 20, 1902.-</p>

<p>Accusation of peddling without license. Before Judge Irwin. City court of Polk county. November 15, 1902.</p>

<p>Indictment for assault with intent to rob. Before Judge Roan. Fulton superior court. January 31, 1903.</p>

<p>The act of December 20, 1899, entitled, “An act to amend section 388 of the Code of Georgia of 1895, so as to make the wife a competent witness to testify against the husband, in cases where there is an indictment for seduction, and marriage for the purpose of suspending the prosecution,” is not applicable to a case where, at the time of the marriage of the alleged seducer and the woman claimed to have been seduced, the former had not been indicted for the offense, but was simply under arrest upon a warrant charging him therewith.</p>

<p>The accused did not, in the trial court, make a showing entitling him to a continuance ; nor did he, in this court, present any hetter showing touching the propriety of setting aside the verdict of the jury.</p>

<p>Petition for habeas corpus. Before Judge Reece. City court of Floyd county. ' December 9, 1902.</p> <p>Manor was imprisoned in the county jail, under a criminal warrant, and, in the fourth week of his imprisonment and after a commitment had been issued against him by the justice of the peace who had issued the warrant, he sued out a writ of habeas corpus, alleging in his petition that he had demanded and had been refused a hearing on the charge made in the warrant, and that further restraint of his liberty would be illegal. The answer set up that a hearing had been waived. There was evidence that at different times while he was in jail the petitioner had been asked by the officer who arrested him if he wanted a trial, and that he replied that he did not want a trial, but wanted to ’settle the case against him; and that the officer reported this to the magistrate who had issued the warrant, and the magistrate then issued the ■commitment. There was no formal waiver of trial. Counsel for the prisoner, after the commitment had been issued, requested the magistrate to give the prisoner a preliminary hearing, but the magistrate replied that the right to a preliminary hearing had been waived, and that he would have to refuse the request. The writ of habeas corpus was denied, and the petitioner excepted.</p>

<p>Petition for habeas corpus. Before Judge Route. City court of Cartersville. December 31, 1902,</p>

Indictment for robbery. Before Judge Roan. Eulton superior court. November 21, 1902. .The accused was found guilty of robbery, and moved for a new trial on the grounds that the verdict was contrary to law and the evidence. The motion was overruled, and he excepted. The material parts of the testimony of the only witness are as follows: “ I had my pocket-book fastened around my finger, holding it in that way, . . and that lady there was next to me. . .

<p>Accusation of assault and battery. Before Judge Raines. City court of Dawson. December 26, 1902. '</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. December 29, 1902.</p>

<p>Action for damages. Before Judge Freeman. City court of Newnan. July 29, 1902.</p> <p>The action was on account of injuries alleged to have been caused by a defect in a public bridge. A demurrer on the grounds that no cause of action was set out, and that the suit was barred by the statute of limitations, was sustained, and the plaintiff excepted. The petition was filed December 31, 1901. It alleged that on November 12, 1900, the plaintiff was in a road-cart, driving a horse attached to it across the bridge in question, when, by reason of the defective condition of the bridge (in that one of the planks in the flooring was inferior, insufficient, and decayed, and had a hole in it occasioned by wear and decay), one of the front legs of the horse fell through the hole or broke through the bridge, thus causing the horse to fall and the plaintiff to be thrown from the cart and to sustain bodily injuries described; that he was at that time exercising the utmost care, and could not have avoided the injuries; that the defendant caused the bridge to be erected in 1892 under contract let by the county commissioners in that year, and the commissioners took no bond from the contractor who built the bridge, to keep it in good repair for seven years or for any length ■of time; that this defective condition' of the bridge had existed, and was known to the county commissioners, road overseers, road superintendents, and other road authorities of the county, for several weeks prior to the injuries, and they had failed and refused to remedy or repair the defects; and that on September 3, 1901, the plaintiff made a written demand on the defendant for payment for the injuries so received, and presented to the hoard of commissioners of roads and revenues of the county his claim for the amount here sued for, and it was refused.</p> <p>Cited by counsel: Political Code, §§ 341-6, 602-3, 623; Acts 1888, p. 39; 41 Ga. 227, 228; 54 Ga. 25; 59 Ga. 832, 835; 64 Ga. 69 ; 80 Ga. 489 ; 81 Ga. 48 ; 90 Ga. 72; 92 Ga. 130 ; 103 Ga. 106 ; 107 Ga. 811; 112 Ga. 779; 115 Ga. 348.</p>

<p>1. The evidence demanded a finding in favor of the plaintiff, and the judge did not err in directing the jury to return a verdict in his favor.</p> <p>2. This being in its nature an action of trover, and the only evidence of the value of the property being as to its value at the date of the conversion, there was no error 'in instructing the jury that they should find for the plaintiff rthe amount so proved, with interest from that date to the time the trial was had.</p> <p>3. There was no error requiring the granting of a new trial.</p>

<p>A policy of fire-insurance upon a house was issued in favor of the life-tenant thereof. After her death the house was destroyed hy fire, and the amount of the policy was paid hy the insurance company to her administrator, who subsequently died. Held: Regardless of whether or not the estate of the life-tenant would have been entitled in law to recover from the insurance company in an action on the policy, the money having been paid by the company to her administrator-, it was held by him in trust for her estate, and was a charge against the estate of the administrator, subject to the provisions of the Civil Code, § 3424, paragraph 5.</p>

<p>Complaint for land. Before Judge Roberts. Johnson superior-court. March 17,1902.</p> <p>The plaintiffs claimed the land as remaindermen under the fourth item of the will of their grandmother Holland Wright. The material part of this item is: “ I desire that all my negroes, and as also all other property, be appraised and equally divided between my sons, William, John, and Eli, and at their death to go to their children.” The testatrix died in 1861, and the property was divided in accordance with the will. The land involved in this suit was in the part allotted to John Webb, one of the sons mentioned above. He died March 18, 1897. The suit was by his children, and was begun February 28, 1899. The defendant claimed under a deed made in pursuance of an order passed by the judge of the superior court, at chambers, June 4, 1868, on a petition presented by John and Eli Webb as executors of the will. That petition was addressed “ To the Honorable William Gibson, judge of the superior courts of the Middle District of Georgia, having jurisdiction in equity.” It alleged that the property devised had been divided as required by the will, the debts paid, and the will fully executed ; that John and Eli Webb had sold, for a valuable consideration, their respective interests as life-tenants in the land passing under the fourth item of the will, each intending to reside in southern Georgia, and they desired the interposition of the court in order that a sale of the remainder might be effected as a present benefit to the remaindermen; that John and Eli Wehb each had a large family of children, and, owing to the results of the war, they were in very straitened circumstances; that the tract given-to John Wehb had the old homestead on it, with much worn and worthless land, the fee of which could be sold for $2,600; that the interest of the life-tenant was antagonistic to that of the remaindermen, and the probabilities were that the remaindermen's enjoyment of the estate would be postponed for many years; that John Wehb, having lost a leg, was unahle to make such a support as he otherwise might for his children, who were minors; and that by a sale of the remainder interests and a reinvestment of the proceeds thereof in lands in southern Georgia, where a good range of stock was to be found, the estate of the children would be enhanced and all parties benefited. It was prayed that the petitioners be appointed trustees for their minor children with authority 'to sell the remainder and invest the proceeds in lands “ for their benefit as joint tenants; ” that the will be so reformed as to create a trust estate for the benefit of the remaindermen, reserving a use for life in John and Eli Webb, and that the purchase-money be invested for the benefit of all, under the uses and trust above mentioned. Indorsed on the petition was the consent of each of the petitioners to accept the trusteeship of his children. On June 4, 1868, at chambers, the judge signed an order appointing John and Eli Webh guardians ad litem,.and another appointing them trustees, for their respective children named in the petition, and providing that “ said trustees be and they are hereby fully authorized and empowered to sell the land described in the application and the petition, and to make and execute good and sufficient titles thereto in fee simple, and to invest the proceeds in other lands, subject to the uses and trusts mentioned in said will, and that the rents and profits accruing therefrom be for the benefit of John Webb and Eli E. Webb and their children respectively, under the provisions and by the terms of said will.” It was further ordered that they make a return to the next term of the superior court as to their acts in the premises. On June 8, 1868, a conveyance of the land involved in the present case was made by John Webb to John E. Wright, which recited that it was executed in pursuance of a decree of tlie superior court, appointing John Webb trustee for his minor children, and authorizing said trustee to sell the lands devised to them by the will of Holland Wright. The defendant came into the possession of this land as one of the heirs of John D. Wright, in a division of his estate.</p> <p>On the trial this petition with its indorsements, and the orders thereon, were admitted in evidence, over objection on the grounds that the will gave the children of John Webb a vested remainder in the premises in dispute, and their remainder interests could not be disposed of in the manner sought by the petition; that the judge of the superior court, sitting as a court of equity, could not entertain jurisdiction of such a petition and pass such orders thereon, because the court of ordinary at that time had exclusive jurisdiction of such estates for the purposes sought in the petition; that the order was void, because it attempted to create a trust estate in the property, which was opposed to the intent and language of the will; that even if a court of equity had jurisdiction in the premises, the judge had no authority, in vacation, at chambers, to entertain the petition or pass the orders; and that some of the remainder-men were-born after the passage of said orders, and their rights could not be defeated in the manner attempted. The court directed a verdict in favor of the defendants. The plaintiffs assigned as error the action of the court in directing a verdict, and in admitting in evidence the petition and orders mentioned. There was a motion to dismiss the writ of error, on the ground that a direct bill of exceptions without a motion for a new trial was not a proper method for the correction of the errors complained of.</p> <p>cited Cobb’s Dig. § 467; Code of 1882, § 2265; 48 Ga. 454; 49 Ga. 411; 60 Ga. 398, 403, 677; 75 Ga. 95, 436; 80 Ga. 36; 86 Ga. 181-5; 91 Ga. 304; 97 Ga. 614; 99 Ga. 444, 450; 106 Ga. 614, 617; 111 Ga. 275 (3), 886; 113 Ga. 891; 1 Dan. Ch. Pr. 205; 81 Ga. 360 (3,4); 82 Ga. 354; 17 A. & E. Enc. L. (2d ed.) 955, 956 (III); 2 How. 43, 319; 19 Md. 375; 71 Ga. 196 (4); 95 Ga. 267.</p> <p>cited Civil Code, §§ 4855, 4863, 4864 et seq.; Cobb’s Dig. 325, 326; Acts 1865-6, p. 221; 65 Ga. 728; 70 Ga. 806; 71 Ga. 654, 664; 84 Ga. 392; 90 Ga. 326; 95 Ga. 766; 93 Ga. 361; 94 Ga. 386; 53 Ga. 36; 59 Ga. 722-8; 65 Ga. 724 (5); 70 Ga. 64, 808; 71 Ga. 654, 665; 82 Ga. 523; 106 Ga. 614 (2); 2 Story, Eq. § 1352; 146 Ill. 227; 64 Ala. 311; 82 Ala. 489 ; 108 Ala. 651; 3 Johns. Ch. 348; 5 Johns. Ch. 163; 2 N. J. Eq. 20, 22; 3 Rich. Eq. 321; 86 N. C. 198; 73 N. C. 504; 33 Ark. 425.</p>

<p>Action on bond. Before Judge Evans. Washington superior court. May 10, 1902.</p> <p>An execution from a justice’s court, in favor of Stephens, executor, against Brown, was levied by Everett, constable, on certain household goods as the property of the defendant; and a forthcoming bond was given by the defendant. A claim to the property was interposed by the defendant’s wife, and on the day advertised for the sale under the levy he refused to deliver the property to the constable. On the trial of the claim case in the justice’s ■court, judgment was rendered in favor of the claimant. After-wards suit was brought on the forthcoming bond, and it was contended by the plaintiff that the justice’s court had no jurisdiction of the claim case, and, therefore, the judgment in favor of the claimant did not relieve the obligors in the forthcoming bond from liability for failure to produce the property at the time and place of sale. The judge, to whom the case was submitted on an •agreed statement of facts, for trial without a jury, ruled against this contention, and rendered judgment in favor of the defendants. Plaintiff excepted.</p>

Certiorari. Before Judge Brinson. Richmond superior court. April 25, 1902. To the return of appraisers setting apart a year’s support from the estate of Thomas L. Thomas, deceased, to his minor children, his administratrix filed a caveat on the ground that Sidney E. Goss, one of the minors, being a married woman and not living in the family or household of the decedent, was not entitled to a year’s support from his estate.

<p>Complaint. Before Judge Taliaferro. City court of Sandersville. July 28, 1902.</p>

Action for damages. Before Judge Reid. City court of Atlanta. February 1, 1902. The suit was on account of personal injuries alleged to have been suffered by the plaintiff’s wife, Annie Young, from the negligence of the defendant’s servants, in suddenly starting a streetcar that she was in the act of entering, whereby she was thrown upon the street. The plaintiff obtained a verdict for $300.

<p>Complaint for damages. Before Judge Reid. City court of Atlanta. March 14, 1902.</p> <p>The action was dismissed upon demurrer on the ground that the allegations did not authorize the plaintiff to recover. It appears that on June 23, 1893, the parties entered into a contract whereby the plaintiff rented of the defendant a storeroom at number 14 Peach-tree street, in the Norcross building in Atlanta, for a term beginning on July 1, 1893, and ending on October 31, 1895, at $80 per month. It was agreed “that if said property shall be destroyed, or so damaged by fire as to become untenable, then the rental hereinbefore named shall cease from the date of such fire till the same shall be repaired.” The plaintiff took possession of the room and used it for storing and selling books, etc. On January 9, 1894, the Norcross building caught fire, the roof and other parts were destroyed, and the building greatly damaged. The defendant represented to the plaintiff that he would at once repair the building, and especially the roof and other parts immediately over the rented room; and that it would not be necessary for the plaintiff to remove from the premises on account of the fire. Relying on said representation, the plaintiff continued his occupancy of the room, and did all in his power to protect his stock from damage by reason of the exposed condition of the building. The defendant did not exercise such diligence in repairing the roof and protecting the plaintiff’s stock as the situation and circumstances demanded, but delayed in undertaking such repairs, and negligently left said room exposed to the elements for about ten days; in consequence whereof, and without any fault on the part of the plaintiff, his goods in the room were injured, wetted, and spoiled by heavy rains, against which the defendant left the room entirely unguarded and unprotected. About February 3, 1894, a part of the Norcross building collapsed and fell, and soon thereafter the defendant began tearing it down in order to replace it by a new building; and about the first Of March, 1894, the plaintiff vacated the room on the request of the defendant. On or before November 1,1894, the room at number 14 Peach-tree street in the new Norcross building was ready for occupancy, and theretofore on several occasions the plaintiff notified the defendant that he expected to occupy said room in the new building until the expiration of his lease; but the defendant leased the room to other persons, who took possession of it before November 1,1894, and have ever since occupied it as tenants of the defendant. The plaintiff was compelled to seek for another place for his business; but he was unable to find any place as well suited therefor as the room he had rented from the defendant, or any place that would at all do for the purpose at a rental of less than $125 per month. He therefore leased a room at number 41 Peachtree street, at that rental, for three years from November 1,1894. He lays the amounts of the several items of damages claimed.</p> <p>By amendment it was alleged that on April 26,1894, the defendant served on the plaintiff a written notice of intention to cancel the lease for failure to pay the sum of $16 0 due on February 1,1894. It is true that the plaintiff did not pay the January and February rent, because from January 9 to the first of March, when he removed from the place, the room was untenantable on account of the fire and the debris and obstructions on the sidewalk, and on account of the rain that ruined the store and his stock therein after the roof of the building had been burned off, and on account of the water thrown by the firemen. The plaintiff did not pay the January rent on the first day of that month, under a course of dealing, assented to by the defendant, whereby the plaintiff was allowed to pay the rent in two or three instalments during the month; and he was acting on this custom when the fire occurred.</p>

Petition for injunction. Before Judge Lumpkin. Fulton superior court. February 2, 1903.

<p>Equitable petition. Before Judge Spence. Decatur superior court. May 20, 1902.</p>

<p>1. Where no evidence lias been introduced to sustain a particular plea, the judge should not charge the jury with reference to such defense.</p> <p>2. In order for the exclusion oE oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be j and that such testimony was material, and would have benefited the complaining party.</p> <p>3. An exception to the foregoing rule may in some cases be made as to answers excluded on cross-examination, where the opposite party is entitled to sift and test the witness, or may not know what the answer would be. •</p> <p>4. There was no complaint of the charge of the court; and the evidence, while conflicting, was amply sufficient to sustain the verdict.</p>

<p>Levy and claim. Before Judge Evans. Tattnall superior court. .May 9,1902.</p>

<p>Action for damages. Before Judge Evans. Emanuel superior court. June 9, 1902.</p>

<p>Complaint. Before Judge Evans. Emanuel superior court. August 12, 1902.</p>

<p>Injunction. Before Judge Evans. Tattnall superior court. November 5, 1902.</p>

<p>1. Where the holder of a security deed infected with usury conveys his interest in the land to secure an indebtedness, and confers a power of sale on such transferee, and this latter conveyance also is infected with usury, the original grantor needs uo injunction to restrain the exercise of the power, as the same would be void.</p> <p>2. That a part of a debt represented by a married woman’s note is usurious, and part that of her husband, does not relieve her from liability for the portion she herself owes.</p>

<p>Complaint. Before Judge Norwood. City court of Savannah. June 12, 1902.</p>

<p>Petition for injunction. Before Judge Felton. Bibb superior court. January 5, 1903.</p>

<p>1. Penal Code, § 73, is not applicable in a case where there is no evidence showing or tending to show that there was.a mutual combat between the accused and the deceased, or any agreement between the parties evidencing a mutual intention to fight.</p> <p>2. The law embodied in the Penal Code, § 73, should never be given in charge to the jury in such a way as to confuse it with that contained in sections 70 and 71.</p> <p>3. On the trial of an indictment for murder, where neither the evidence nor the statement of the accused warrants a conviction of involuntary manslaughter, it is error to charge the law relating thereto, and to instruct the jury that if they see proper they may find the accused guilty of that offense.</p>

<p>Petition for injunction. Before Judge Felton. Bibb superior court. January 5, 1903.</p>

<p>Quo warranto. Before Judge Roan. Troup superior court. January 24, 1903.</p>

<p>Where the owner of land reñís it to a tenant who sublets a portion, of it for a specific price, the landlord may elect to treat the subtenant as his own tenant and proceed against him directly by distress warrant and subject the crop raised on the premises by the subtenant to the payment of the rent; and this is true notwithstanding the subtenant has given his note for the rent agreed upon to the principal tenant, who has transferred such note to a third person.</p>

<p>A chartered street-railroad is a railroad company within the meaning of the Civil Code, §§ 2297, 2323, and therefore is liable to one servant for injuries inflicted by the negligence of a fellow-servant.</p>

<p>Where the assignee of a lease under which the rent is payable, in advance, in equal weekly installments at the beginning of a week pays to the landlord the installment of rent therefor, and, during the term for which the rent is thus paid, is wrongfully evicted by the landlord, he has the right to recover from the latter the whole of the rent paid for such week.</p>

<p>Where a judgment has been rendered in a justice’s court against a person who was not named- in the summons, and it is sought to bind him on the ground that he appeared and pleaded in the cause and thus made himself a party thereto, the fact of appearance and pleading must appear from a docket entry, and can not be shown by parol evidence.</p>

<p>Action for damages. Before Judge Seabrook. Liberty superior court. March 5, 1902.</p>

<p>Petition for injunction. Before Judge Felton. Bibb superior court. January 9, 1903.</p>

<p>1. Construing Penal Code, § 450, in the light of the act from which it was codified, it provides for the punishment of one who deals in domestic wines and other intoxicants the sale of which is not prohibited by the general local option liquor law, or by any other local or general law of the State prohibiting the sale of intoxicating liquors.</p> <p>2. Corn whisky not being an intoxicant which is excepted from any of the laws just referred to, one who deals in such whisky can not be lawfully convicted upon an accusation framed under the above-mentioned section of the code.</p> <p>3. An accusation which charges that the accused “ did deal in domestic wines, whisky, and other intoxicants, in violation of law, having failed to pay the tax imposed by law,” was manifestly intended to charge a violation of the Penal Code, §450 ; and the word “ whisky ” must be treated as surplusage.</p> <p>•4. When upon a trial under an accusation of the character above indicated the sole evidence against the accused is that he sold “corn whisky,” a verdict finding him guilty can not be upheld.</p>

<p>1. Where equity, by reason of the residence of one of several codefendants living in different counties, has obtained jurisdiction of a case, such jurisdiction is not lost by the death, removal, or resignation of the resident defendant.</p> <p>2. A municipal corporation which has, under its charter, exclusive power to “ control and direct ” the sale of liquors within its limits, has no authority, under such a provision, to organize a dispensary by appointing commissioners and authorizing them to sell liquors under certain terms and conditions prescribed in the ordinance. This is especially true when the people of the county wherein the dispensary is located had, prior to its organization, adopted the local option law which forbids the sale of liquors in that county.</p> <p>S. The illegal sale of intoxicating liquors is a public nuisance, affecting the whole community in which the sale is carried on, and may be abated by process instituted in the name of the State.</p>

<p>Petition for injunction. Before Judge Evans. Bulloch superior court. December 16, 1902.</p>

<p>Appeal. Before Judge Brinson. Richmond superior court. January 10, 1902.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. May 5, 1902.</p>

<p>Processioning. Before Judge Brinson. McDuffie superior ■court. January 31, 1902.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. June 17, 1902.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. January 30, 1902.</p>

<p>Equitable petition. Before Judge Seabrook. Chatham superior court. July 19, 1902.</p> <p>Gould filed, on February 12, 1901, a petition against the executor of Jackson, alleging that on June 5, 1889, he borrowed from Whatley, general agent of Jackson, the sum of $3,500, to be due and payable one year after date, and, as security for the loan, gave a deed to certain described realty; that When the note became due he was unable to pay it, and Whatley informed him that he would foreclose the deed, and agreed with plaintiff, in order to save the expense necessary for the sale of the property for the payment of the loan, that it should be bid in for account of Jackson for a nominal sum; that, acting in good faith in pursuance of the agreement, plaintiff requested the prospective bidders of the property, before and at the date on which it was sold, not to bid on it; that it was sold, on October 3, 1893,-by the sheriff at public outcry, and was bid in by Whatley, or by some other person as agent of Jackson, for $500 ; that on August 1,1894, Jackson through his agent sold the property to Fripp for $5,200, and plaintiff was informed that the sale was made on time; that he agreed with Whatley that, after the last payment by Fripp, there would be an accounting, and that plaintiff would be paid the balance’ accruing to him after the principal, interest, costs, and all other expenses incidental to the loan and the collection of the same by law had been paid to Jackson ; that there has been no accounting; that the amount that may be due plaintiff as the balance of the proceeds of the sale to Fripp was a trust fund held for his benefit and in equity should be paid to him after an accounting; that, on demand for payment, Whatley replied that the sale to Fripp was on time, and as soon as the amount due by Fripp was paid he would make an accounting and pay plaintiff the amount so ascertained to be due to him fand that demand was made on the executor of Jackson (who died on May 23, 1898), and payment refused by him. Discovery is waived, and it is prayed that Jackson’s executor be required to present to the court a full statement of the amount realized from the :sale to Fripp, and the amount of the loan to plaintiff, together with all interest, costs, charges, and other expenses connected with the sale of the property, and the surplus accruing after such expenses •and deductions have been made.</p> <p>The defendant demurred on the grounds: (1) that no cause of action is set forth; (2) that it does not appear that defendant is indebted to plaintiff; and (3) that it does not appear that plaintiff’s demand is not barred and stale. The demurrer was sustained on the ground that the action was barred.</p>

<p>Certiorari. Before Judge Barrow. Chatham superior court. August 1, 1902.</p> <p>Upon an execution against Melton a garnishment was sued out, which was traversed, and the trial justice entered judgment sustaining the traverse. This ruling was set aside on certiorari, and the plaintiff excepted. The evidence was in brief as follows: Melton is employed as a carpenter in a planing-mill; is foreman of the mill, has charge of that department, and has ten or fifteen men under him; is paid by the hour, and earns $3.25 per day; has special supervision of the mill, because he is a skilled mechanic, and for his ability to manage it; others working under his orders do not receive the same pay he gets; he directs work and works himself, and it is manual labor — is not easy work but very hard; his duties-are to run machinery, adjust it to cut patterns needed, repair it if' needed; he is not an officer; works just the same as the other men do who work with him and under him; has no more authority than to tell them what to do; can not hire or discharge them ; he works with them, and is known as a subforeman. Should witness wish anything done, he goes to the foreman of the car department, who then goes to Melton. All the timber and wooden patterns for cars are got out by Melton and furnished to the foreman, his superior, who has control of the mill. Melton is in control under him. All of his work is mechanical; he assists the other men in turning out work in the mill, works as they do, and does manual labor; all the time not engaged in giving directions to men under him he is running the machinery and handling lumber and timbers; is employed as a mechanic; keeps machinery in repair to a great extent, as far as his ability goes. Breaks occur that he can not mend; then, it goes to the foundry or machine-shops. His work in the mill is woodwork, and he works most of- the time like the other men. No •one but a skilled mechanic could handle the machinery and keep it in order. Melton’s skill was what placed him in the position; he was employed on account of his skill, not on account of his ability to supervise and direct men only. He is required by his employer to work just like the other men, and not simply to boss. All of his work is manual.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. September 2,1902.</p> <p>Mrs. Grogan sued a street-railroad company on account of personal injuries, and obtained a verdict for $750. A motion for a new trial was overruled, and the company excepted. It was alleged, that on July 31, 1901, the plaintiff with five of her children (one an infant in her arms) boarded a car of the company, paid the fares to the conductor, and told him to put- her off at Stewart and West Broad streets. She reminded him several times not to let her pass said point. When the car reached Stewart street it did ■ hot stop, but passed said street a little distance on West Broadband then stopped.. ■ She immediately arose with her children and proceeded to alight. Two of the children got off first; and while she with her babe was doing so in the exercise of all reasonable diligence, with one foot on the running-board, and in the act of stepping to the ground with the other foot, the car started forward with a sudden jerk, and she was thrown violently to the ground, but managed to cling to the handhold of the car and was dragged on the ground about a car-length, when she was compelled to release her hold, and fell upon her head. She struck violently her shoulder, right side, and head, and was badly bruised. She was also injured internally, had a hemorrhage of blood from the mouth, and for some time thereafter continued to spit blood. She had no opportunity to prevent her fall. She was confined to her room for some time, suffered great pain and mental anguish, was unable to work, and incurred expense for medical treatment. The company’s servants were negligent in not allowing her sufficient time to safely alight after the car stopped, and in starting it forward with a violent jerk without warning. She “ sues for her personal injuries, for her pain and suffering both mental and physical, for her loss of time, and her physician’s bill,” and for punitive damages.</p> <p>The plaintiff’s testimony supported her allegations. She further testified that she had been nervous and sick and had pain in her side since being confined to her room, and still had the pain; and that before she was hurt she helped her husband in pressing clothing, and could look after household duties, but had never been able to attend to that work since. Her physician and another witness gave testimony tending to corroborate her as to the extent of her injuries and suffering. She introduced the conductor of the car. He had understood her to say that she wanted to get off at New street. She and her children were toward the rear of the car. At the front were a lady and child who were to get off at Berrien street. He went forward, assisted those two to alight at that point, rang the motorman ahead without looking back (not thinking any one else wanted to get off, there being few passengers), and when the plaintiff screamed he rang the car down, looked back, and saw her on her knees in the soft sand. Berrien is a little north of Stewart street, and is a convenient place to get off for Stewart. Those two streets and another come together there. The car was going northward. There was testimony for the defendant, that, after the lady at the front of the car was helped off, the plaintiff was seen standing on the ground with her babe; that the conductor said, “ All right,” and stepped on the car; that the children began to scream; and when the car started the plaintiff caught hold of it, and was pulled by it down upon her back; and that it was stopped in not more than a car-length. She did not fall from the car; she caught hold of it, and it pulled her down. The conductor said to her that he was sorry; that he thought she wanted to get off at New street. She told him she was not hurt; and she and her children walked away after all of them had alighted and she had been assisted to rise.</p> <p>The grounds of the motion for new trial sufficiently appear from the opinion, except the following: The charge of the court submitted to the jury’s consideration, on the subject of damages, “ that mental suffering which arises from the consciousness of one’s incapacity to labor and earn a living,” they being instructed that, the declaration not alleging any permanent injury, any finding on this ground would have to be limited to the date of the verdict; but if they found that the plaintiff had suffered from this cause up to the trial, they “ could give a verdict for that as an item of damages.” This was assigned as error, because there was no allegation that the plaintiff was incapacitated to labor or earn a living, or that her earning capacity was diminished; and nothing to authorize a recovery for pain and suffering beyond that suffered before the filing of the suit, or for diminished capacity to labor thereafter; and no evidence to authorize a recovery for diminished capacity to labor after her confinement to her room; and nothing to authorize a recovery for diminished earning capacity. Also, because the charge was not confined to the pain and suffering from diminished capacity to work.</p>

<p>1. If the law and the facts do not require the verdict, this court will not disturb the first grant of a new trial, although it was put upon a single ground, nor will it determine whether the court below was right in granting the motion for such special reason.</p> <p>2. A chartered street-railroad company is a railroad company within the meaning of the Civil Code, § 2321, and the presumption is against such company where damage was done to person or property by the running of the cars or machinery thereof.</p>

<p>Action on contract. Before Judge Eve. City court of Richmond county. March term, 1902.</p>

<p>Indictment for murder. Before Judge Hansell. Lowndes superior court. December 29, 1902.</p>

<p>Equitable petition. Before Judge Brinson.. Richmond superior court. April 25, 1902.</p> <p>cited, on mistake relievable in equity: Civil Code, §§ 3973-4; 32 Ga. 181; 46 Ga. 652; 82 Ga. 520; 89 Ga. 629; 2 Pom. Eq. Jur. §§856, 871. Statute of limitations suspended: 29 Ga. 673; 92 Ga. 719; 106 Ga. 320; 11 Ga. 174; 12 Ga. 599 ; Civil Code, § 3983; 35 N. E. 1065; 12 Allen, 333; 2 Y. & C. 58 ; 4 Ch. Div. 845, 860; 48 N. Y. 193; 27 Ky. 75; 29 Ky. 338; 30 Ky. 455; 21 Ky. 373; 51 Ky. 269 ; 67 Ky. 635 ; 79 Ky. 470 ; 53 S. W. 412 ; 30 Neb. 385 ; 31 Tex. 334; 35 S. W. 909; 52 S. W. 1046 ; 2 Md. Ch. 370; 127 Ala. 411; Story’s Eq. Jur. 1521 a.</p> <p>cited, beside the cases referred to in the opinion: Civil Code, § 3785; 28 Ga. 30, 38; 60 Ga. 449; 69 Ga. 553; 94 Ga. 484; 101 Ga. 594; 107 Ga. 810; 112 Ga. 273 ; 19 Am. &Eng. Ene. L. 248, 250.</p>

<p>1. If one agrees with another to send him goods for the latter to sell or return,, the title passes and the goods are the property of tire latter until he exercises his option to return them. If, however, there is an agreement between the sender of the goods and the receiver that there shall he no sale hut the receiver is to sell the goods and account to the sender for the proceeds of the salé, the receiver does not acquire the title, but is a mere bailee of the goods.</p> <p>2. It follows that if the receiver of the goods had, prior to the last-mentioned agreement, given a mortgage to a third person which covered his stock of goods, and had become insolvent, and the mortgage had been foreclosed, the goods sent under the agreement were not subject to the mortgage, but were the-property of the bailor.</p>

<p>1. The constitution requires that this court shall dispose of every case at the first- or second term, and that in the event the plaintiff in error shall not be prepared at the first term to prosecute the case, unless prevented by providential cause, it shall be stricken from the docket.</p> <p>2'. The 24th rule of the Supreme Court provides that if on the call of a case the plaintiff in error be unrepresented, the case will be dismissed for want of prosecution, and will not be reinstated except for providential cause.</p> <p>3. A case is unrepresented when the same is called and the plaintiff in error does-not appear, either in person or by counsel, and there are at that time no-briefs in behalf of the plaintiff in error of file in the clerk’s office.</p> <p>4. The ordinary delays of the mails do not constitute providential cause.</p> <p>5. When a case is called inits order and the saméis unrepresented, and an entry of dismissal is entered upon the docket and the case stricken therefrom, the.dismissal is complete from that moment, notwithstanding the formal-judgment of dismissal is not entered upon the minutes until a subsequent time.</p> <p>6. It follows from the foregoing that when a case is called and dismissed for want of prosecution as an unrepresented case, it will not be reinstated, although it appears that during the same day and the same session of the court briefs in behalf of the plaintiff in error were delivered by the postman to the clerk in a mail package which by stamped entry thereon is shown to have been in the possession of the postal employees of the place where the court was sitting when the case was called in its order, which facts were called to the attention of the court before adjournment for the day, within a short time after the case had been dismissed, and before the judgment of dismissal had been entered upon the minutes, but after the entry had been made upon the docket and the case stricken therefrom.</p>

<p>In a suit for damages for personal injuries occasioned by the negligence of the defendant, the plaintiff can not recover except upon the acts of negligence set out in his declaration. It is therefore error to give th'e jury instructions to the effect that, if the defendant was not guilty of the acts of negligence alleged, still the plaintiff might recover if the defendant were in other respects negligent.</p>

<p>1. Under the law of this State, where there is a delivery of cotton by a planter or commission merchant “ on cash sale,” the title of the seller remains undivested until payment in full of the purchase-price, and may be asserted by him even as against a bona fide purchaser from his vendee.</p> <p>2. A factor into whose hands the cotton passes is chargeable with a conversion of the same if he disposes of it at the instance of the buyer, though it be sold in due course of trade, and notwithstanding the factor acts in entire good faith and without notice of the retention of title by the seller.</p> <p>3. When the subject-matter of a contract of sale is cotton belonging to a planter, and the parties to the contract consider the sale complete in respect to both payment and delivery, the title passes ; but when, on the other hand, they intend that final payment and final delivery shall yet take place and be concurrent acts, the title does not pass.</p> <p>4. In the absence of an express understanding to the contrary, the giving of a draft in settlement of a cash demand does not operate as a payment thereof, until the draft is itself paid.</p> <p>5. Under the facts brought to light upon the trial of the present case, the contract of sale entered into between the plaintiff and the person to whom he sold his cotton was, not only as originally contemplated by the parties, but as finally consummated, one strictly for cash, with no credit feature about it.</p> <p>6. A finding that each of the defendants was chargeable with a conversion of cotton belonging to the plaintiff was demanded by the evidence, and the money verdict returned by the jury in his favor was neither excessive nor void for uncertainty.</p>

<p>Petition for prohibition. Before Judge Barrow. Chatham superior court. February 12, 1902.</p>

<p>Complaint. Before Judge Norwood. City court of Savannah. August 5, 1902.</p>

<p>Motion to set aside judgment. Before Judge Norwood. City-court of Savannah. August 5, 1902.</p>

<p>Complaint. Before Judge Seabrook. McIntosh superior court. July 28, 1902.</p>

<p>1. An attachment serves the office of an execution, within the meaning of the act of 1874 (Acts 1874, p. 85); and where the amount of the attachment, or the value of the property levied on, exceeds $50, either party in a claim case may appeal to the superior court.</p> <p>2. An agreement by which A, the owner of land, was to furnish timber, and B was to convert the timber into cross-ties and deliver the same to A, by whom they were to be sold, and the profits were to be equally divided between the two, did not create a partnership. B’s interest was in the proceeds. He had a common interest in the profits, but no title to the cross-ties; and if he loaded them on cars and took a bill of lading therefor in his own name, he could not, by a sale of the property and a delivery of the bill of lading, convey title to an innocent purchaser, good as’against A.</p> <p>8. But if A, after such a sale, sued out an attachment against B for the purchase-money of the ties, and the same was levied thereon as the property of B, and judgment taken on the attachment against the property, A thereby waived the tortious conversion and ratified the sale.</p>

<p>Attachment. Before Judge Brinson. Richmond superior court. May 1, 1902.</p>

<p>Money rule. Before Judge Seabrook. Liberty superior court. June 9, 1902.</p>

<p>Motion for new trial. Before Judge Nottingham. City court of Macon. January 29, 1902.</p>

<p>Motion to tax costs. Before Judge Eelton. Crawford superior court. March term, 1902.</p>

<p>An entry of service of a summons of garnishment stating that the same was served “ personally on S. C. Hoge, agent in charge of the office of the Cen- ■ tral of Georgia Hallway Company,” does not show a service upon the corporation, but only upon the person named as an individual; the words “agent in charge of,” etc., serving merely to describe and identify the individual.</p>

<p>1. The power granted the Georgia Railroad & Banking Company to condemn * private property in the manner prescribed in its original charter as amended by the act’approved December 26, 1836 (Prince’s Dig. 358), could not legally be, and was not, affected by the passage of the act approved December 18, 1894 (Civil Code, §§ 4657 et seq.), “ to provide a uniform method of exercising the right of condemning, taking, or damaging private property.”</p> <p>2. The act of 1836 above referred to, amending the original charter of the Georgia Railroad & Banking Company, was sufficient in scope to authorize thal company to take private property by condemnation, and to provide a method of so doing.</p> <p>3. Under a power granted in the charter of a railroad company to “ purchase, and have and hold . . any lands necessary for the site, on and along which to locate . . the aforesaid railroad . . or any branches thereof; or to vary or alter the plan or plans, and of such breadth and dimensions through the whole course of the road and roads, as [the company] may see fit,” it was permissible for the company, under proper proceedings, to condemn private property for the purpose of laying a double track and enlarging its terminal facilities.</p> <p>4. The power to condemn private property conferred by the charter of the Georgia Railroad & Banking Company was not exhausted by its first exercise, but is coextensive with the necessities to meet which it was granted.</p> <p>•5. The cases of Alabama R. Co. v. Gilbert, 71 Ga. 591, and Savannah R. Co. v. 'Woodruff, 86 Ga. 94, distinguished.</p>

<p>Distress warrant. Before Judge Felton. Houston superior court. April 18, 1902.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. February 18, 1902.</p>

<p>"Where property is bought under the implied warranty that it is reasonably suited to the use intended, an acceptance by the purchaser of the property waives all defects which might have been discovered by the exercise of ordinary care and prudence before delivery. Incase of an express warranty that the property sold will be of a particular kind and quality, the purchaser has a right to rely on the warranty, and may plead partial failure of consideration growing out of defects discovered after acceptance, even though they would have become apparent upon an examination before delivery.</p>

<p>Action on bond. Before Judge Felton. Bibb superior court. April 24, 1902.</p> <p>This was an action on a constable’s bond, for damages occasioned by the levy of a fi. fa. issued on a void judgment against a garnishee. It appeared that the affidavit and bond were signed on April 18, 1901; that a summons dated the same day, requiring an answer on April 20, was served on April 19; and that judgment-by default was entered against the garnishee on April 20, 1901. An execution regular on its face issued thereon May 2, and was levied, May 7,1901, by Stokes, a constable of another district, who did not serve the summons of garnishment, and knew nothing of' the proceedings on which the fi. fa. issued, and had no knowledge-of the invalidity of the judgment. The bill of exceptions contains-several assignments of error, all of which present different phases of the one question whether, under the law, the constable was liable where the writ was fair on its face and he had no notice of the fact that the judgment was void because rendered within two days after service of the summons.</p>

<p>1. Assignments of error upon, the admission of evidence will not be considered wh-en it does not appear what objection to its admission was made before the court below.</p> <p>2. There was no error in the charge complained of, or in refusing to charge; and the evidence was sufficient to authorize the verdict.</p>

<p>Application for temporary alimony. Before Judge Holden. Elbert superior court. October 4, 1902.</p>

<p>Action for damages. Before Judge Fite. Bartow superior court. June 21, 1902.</p>

<p>Habeas corpus. Before- Judge Harris. Meriwether superior court. October 4. 1902.</p> <p>This was a contest for the custody of a girl of thirteen years. The evidence was conflicting, but there was enough to warrant the ordinary in finding that the mother had abandoned the child when it was an infant; that the father had requested the grandmother to care for her; that according to her station and means in life the grandmother had fairly discharged this duty; that, shortly before the application for habeas corpus by the grandmother, the mother had taken the child from school to which she was being sent by the grandmother; that petitioner was better qualified to train and care for the minor than the respondent; and that the child preferred to stay with the mother, but the father wished her to return to the-grandmother.</p>

<p>1. A new trial will not be ordered because the trial judge, in overruling amotion to dismiss a petition, before any evidence had been introduced, remarked, in the presence of the jury : “I will overrule the motion and let you go on ; but I don’t see how the plaintiff can recover.”</p> <p>2. Though the board of trustees of a corporation keeps no book of minutes or other record of its official actions, a declaration, made at a meeting of the board by the president thereof (since deceased), that at a former meeting certain action had been taken by the board, is not admissible to prove that such action was taken; nor is it admissible as an admission or, when it does not appear that any one acted on it, to show an estoppel as against the corporation.</p> <p>3. A complaint that “the court erred in refusing the written request of the plaintiffs to charge the jury ” on a given question of law is insufficient as an assignment of error, in that it fails to set out, literally or in substance, the contents of the request and renders it impossible for this court to determine whether such request contained a correct statement of the law.</p> <p>4. In the absence of a proper request, there is no error in failing to charge as to the law applicable to determining the credibility of witnesses.</p> <p>6. The evidence warranted the verdict.</p>

<p>Injunction. Before Judge Foster. Laurens superior court. December 26. 1902.</p>

<p>1. A receiver may be appointed in a proper case, though no prayer for his appointment is made by either party.</p> <p>2. In the present case there was no abuse of discretion in appointing a receiver ; and important and doubtful questions of law which were not passed on by the trial judge will not be decided.</p> <p>3. Rulings made by the court during the progress of the hearing, which in all probability did not affect its decision in appointing a receiver, will not, even though erroneous, require a reversal of the judgment.</p>

<p>Quo warranto. Before Judge Littlejohn. Sumter superior ■court. February 16, 1903.</p>

Petition for discharge from custody. Before Judge Griffin. City court of Yaldosta. November 28, 1902. The Gustoso Cigar Manufacturing Company instituted bail-trover proceedings in the city court of Valdosta, against Ray. The defendant was taken into custody by the sheriff, and applied for a discharge under the Civil Code, § 4608.

<p>Equitable petition. Before Judge Roberts. Pulaski superior court. February 6, 1902.</p>

<p>Petition for injunction. Before Judge Parker. Appling superior court. January 24, 1903.</p>

Action for deceit. Before. Judge Reid. City court of Atlanta. March 3, 1902. Mrs. Hart sued Waldo and the Phenix Insurance Company, a New York corporation, in an action for deceit. Her petition stated substantially the following case: She is the owner of, and is entitled to the possession of, a policy of fire-insurance for $1,200, issued by the defendant insurance company, on her house in the city of Atlanta.

Injunction and receiver. Before Judge Lumpkin. Fulton superior court. January 5, 1903. Held: “Where a principal deposited money with his agents to be used in the purchase of futures in pork and grain, he could recover from such agents the amount so deposited, in an action for money ha'd and received.

<p>Injunction. Before Judge Russell. Clarke superior court. November 14, 1902.</p>

<p>Gomplaiut. Before Judge Evans. Washington superior court. March 5, 1902.</p>

<p>1. After a witness who has admittedly made contradictory statements touching a matter as to which he is examined essays to offer a satisfactory explanation in regard thereto, it is grave error for the presiding judge, in commenting upon the propriety of not adhering to previous statements which the witness claimed he made under an honest mistake of fact, to so allude to his explanation as to apparently give it judicial indorsement and approval. That no motion for a mistrial was made because of the remarks of the judge in this connection can not properly be regarded as precluding the party prejudiced thereby from complaining thereof after verdict, in the event the finding oí the jury be adverse to him.</p> <p>2. As in the present ease the triaL judge not only unwittingly committed an error of the nature above indicated, but gave to the jury an instruction on the subject of impeachment of witnesses which was far from accurate, if not misleading as well, the ends of justice require that the. case should undergo another investigation.</p>

<p>1. A city ordinance wkicli makes it unlawful for any person to keep an open, business house on the Sabbath day, with a proviso that nothing therein shalL prevent the sale of drugs on that day, does notprohibit one who is the owner of a place of business where drugs and other articles are sold, and whose-business and ordinary calling is the selling of such goods, from keeping such place of business open on the Sabbath for the purpose of selling drugs, in. cases where such sales would be authorized under the laws of the State.</p> <p>2. If such person sells on the Sabbath day at such place of business articles other than drugs, in cases where there is no necessity for such sale, or sells even, drugs unless there is a necessity to do so, he can not be punished therefor by the municipality, but may be punished under the provisions of the Penal Code,, §422, which prohibits every one from pursuing his business or work of his-ordinary calling on the Sabbath day, works of necessity and charity only-excepted.</p>

<p>Accusation of cheating and swindling. Before Judge Hodges, City court of Macon. April 22, 1903.</p> <p>The conviction rested on testimony tending to prove, that Ford, the manager of an aid society, received by telephone a message purporting to be spoken by Wachtel, stating that Braxton wanted to borrow five dollars, and that the speaker would see that Braxton paid it on a named day thereafter. In a few minutes Braxton appeared at Ford’s office and said he had come for the money that Wachtel had telephoned about. Ford thereupon let him have five dollars of the money of the aid society, requiring him to execute a chattel mortgage on behalf of himself and his wife. Ford would not, however, have lent the money to him but for the telephonic message. A levy under foreclosure of the mortgage was met by a claim of homestead exemption; and Wachtel denied that he had given the message by telephone, and refused to pay. Braxton repaid $1.50 or $1.75 of the money ; the rest was lost. The points made by the assignments of error (beside the general grounds of the motion for new trial) were, that the evidence did not sufficiently connect the accused with the sending of the telephonic message; and that the testimony relating thereto should have been ruled out, on motion, when it appeared that a mortgage was taken.</p>

<p>Indictment for gaming. Before Judge Crisp. City court of Americus. April 13, 1903.</p> <p>cited Penal Code, §§ 946-9; 34 Ga. 323; 49 Ga. 104; 58 Ga. 35; 69 Ga. 595; 95 Ga. 227; 4 Am. & Eng. Enc. L. (1st ed.) 760-62; 2 Enc. PI. & Pr. 787 et seep</p> <p>cited authorities in headnotes, and 31 Eed. 19; 21 Neb. 593; 12 Has. 550, 561; 17 N. Y. Supp. 395; 34 Hun, 260; 11 Bradw. 294; 66 la. 11; 67 la. 27; 51 Ark. 130; 30 Ind. 266; 51 Has. 330; 2 Enc. PL & Pr. 791; 56 Ga. 467; 69 Ga. 404; 87 Ga. 517; 107 Ga. 726.</p>

<p>Accusation of larceny. Before Judge Hollingsworth. City court of Fayetteville. April 27, 1903.</p>

Accusation of larceny from the house. Before Judge Hodges. City court of Macon. May 1, 1903. Hargrove was convicted of stealing an overcoat from the Lanier Hotel in Macon.

<p>Accusation of gaining. Before Judge Hollingsworth. City court of Fayetteville. May 2, 1903.</p>

<p>Indictment for assault with intent to rob. Before Judge Roan. Fulton superior court. April 29, 1903.</p>

<p>Certiorari. Before Judge Gary. Richmond superior court. April 22, 1903.</p>

<p>1. It is not improper for the judge, for the purpose of informing himself as to the probability of the jury being able to agree upon a verdict, to inquire of the individual jurors as to whether there is any likelihood of an agreement.</p> <p>2. When the judge is informed by some of the jurors that there is no likelihood of an agreement, and by others that it is doubtful whether an agreement can be reached, it is not error requiring the granting of a new trial for the judge to say: “ Well, you are sensible men. I do not wish to force you to make a verdict, but I will stay with you the day. Retire to your room and see if you can agree upon a verdict.”</p> <p>8. The discretion of the trial judge in refusing to grant a new trial on the ground of newly discovered evidence will not be controlled, when evidence as to part of the facts alleged to have been newly discovered would be inadmissible and the other part js of such a character that it ought not and most probably would not change the result.</p> <p>4. When passing upon a ground of a motion for a new trial in a criminal case, based upon an alleged expression of opinion of one of the jurors before the trial as to the guiltof the accused, the trial judge occupies the place of a trior, •and his finding that the juror was competent will not be reversed, unless under all the facts the discretion of the judge was manifestly abused.</p> <p>5. There was no error in the charge requiring the granting of a, new trial. The evidence, though entirely circumstantial, was sufficient to authorize the verdict, and there was no abuse of discretion in refusing to set aside the finding of the jury.</p>

<p>Indictment for larceny from the house. Before Judge Felton. Bibb superior court. May 14, 1903.</p>

<p>Indictment for seduction. Before Judge Russell. Gwinnett superior court. March 12, 1903.</p>

<p>Indictment for murder. Before Judge Eite. Whitfield superior court. May 11, 1903.</p>

<p>Indictment for assault with intent to rob.' Before Judge Roan. Fulton superior court. May 23, 1903.</p>

<p>Exceptions to auditor’s report. Before Judge Gober. Cherokee superior court. August 6, 1902.</p>

<p>Equitable petition. Before Judge Eelton. Houston superior court. August 1, 1902.</p>

<p>Certiorari. Before Judge Butt. Talbot superior court. September term, 1902.</p>

<p>Injunction. Before Judge Spence. Worth superior court. April 21, 1903.</p>

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

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

<p>Accusation of assault and battery. ' Before Judge Hodges. City court of Macon. May 1, 1903.</p>

<p>1. At common law keeping a gaming-house was an offense, although no form of gambling was then punishable, and gaming contracts were enforced by the courts.</p> <p>2. Prior to the first Penal Code this common-law offense of keeping a gaming-house was punished in Georgia.</p> <p>3. The same offense is defined by the Penal Code, §398, which makes keeping a gaming-house a misdemeanor, without reference to the character of the games there carried on.</p> <p>A. Betting on a horse-race is gaming within the meaning of the code.</p> <p>6. One who maintains a house for the purpose of such gaming is guilty of keeping a gaming-house, even though betting on a horse-race is not prohibited by statute, and though the race be run in a different State.</p> <p>6. The statute is not aimed at the games or the players, but against keeping a house where gaming of any sort is encouraged, and because of its tendency to corrupt morals and to ruin fortunes. ,</p>

<p>Where A, who had a contract to grade a portion of a railroad, made a contract with B, by the terms of which B was to “put in” sixteen mules and harness against A’s six mules and his services, and'to receive one half of the net profits of the business for the use of his mules and harness, there was a partnership betweén them as t;o third persons, although they agreed that B was to have nothing to do with the work and was not to be responsible for any debts.</p>

<p>Action for damages. Before Judge Henry. Eloyd superior court. September 30, 1902.</p>

<p>Where one gave to another, in payment of a debt, a check upon a bank at which he had on deposit sufficient money to meet the payment of the check, and the payee deposited the check for collection in another bank, which immediately forwarded it to the drawee bank for payment, an entry on its book by the drawee bank charging the amount of its depositor with the amount of the check was equivalent to the payment thereof. The drawee bank then held the amount of the check as the agent of the payee, and the drawer was discharged from liability on the debt for which the check was given.</p>

<p>Action for damages. ' Before Judge Foster. Greene superior-court. September 8, 1902.</p>

<p>Equitable petition. Before Judge Beagan. Monroe superior •court. October 9, 1902.</p>

<p>1. Exception to the allowance of an amendment to a petition can not properly be made in a motion for a new trial. Nor can an exception of this nature in a motion for a new trial be made effective by an assignment of error in the bill of exceptions, when it was not sued out within due time after the ruling complained of.</p> <p>2. A purchase by a husband at a sale had by his wife as administratrix is voidable at the election of heirs of the intestate, who move within a reasonable time after the sale to set the same aside.</p> <p>3. Where in a suit of this nature, brought by the heirs against the administratrix and her husband, the plaintiffs in the original petition pray that the deed to the husband be cancelled, and, by amendment duly allowed oyer objection, pray that they be allowed to recover the- rental value of the land sold, from-the date of the sale, and also the value of the personal property sold, with interest, and a verdict and decree are rendered in accordance with these prayers, the administratrix will not be allowed to complain of such verdict and decree, when they were warranted hy the evidence, and when she filed no plea setting up any reason why it was necessary for her to longer retain the property of the estate in.her possession. If the plaintiffs were not entitled in such a suit to the relief prayed for in the amendment, the order allowing the amendment, unless excepted to in due time and in the proper manner, concluded the defendants on the plaintiffs’ right to the relief sought; and if there were debts due hy the estate, or any other reason existed why the property should not he distributed hy the court among the heirs at law, the administratrix should have pleaded and proved it.</p>

<p>Complaint. Before Judge Foster. Jasper superior court. October 20, 1902.</p>

<p>Action for damages.' Before Judge Foster. Greene superior court. December 22, 1903.</p> <p>The- plaintiff sued on account of wrongful expulsion of himself and Ms wife from a passenger-train. Wben their tickets were prer sented, the conductor said they were not good. The plaintiff asked why. The conductor said, “You have got to pay me more money or get off, one or the other.” The plaintiff then paid train fare to the next station, where he and his wife left the train, and he bought her a ticket to the place to which they had intended to go, not having money to buy one for himself. She re-entered the train, and be walked back about two miles to his home. While so walking he was overtaken by a son of the acting ticket-agent who had sold him the tickets that the conducter had refused to honor, and the money he had paid for them was refunded to him. It was a July Saturday afternoon. He regarded the conductor as impolite and rude in saying to him, “ Your ticket is no good. You have got to-get off, or pay me more money right now.” He took the conductor’s manner of speaking to be rough. Hie conductor testified that he spoke in an ordinary tone, saying that the tickets were Sunday tickets and he could not honor them, and that plaintiff could pay fare to the next station and there buy tickets to his destination. There was some conflict also as to other matters. The plaintiff obtained a verdict for $150. The railroad company moved for a new trial on the grounds, among others, indicated by the headnotes; and the motion was overruled.</p>

<p>1. Prima facie a judgment in favor of E. J. D., executor of M.'G., is his individual property, but this presumption may be removed by slight evidence tending to show that he holds the same in trust for the estate.</p> <p>2. Evidence that the note on which the judgment issued was the property of the estate shifts the burden ; and unless the same is met by a counter-showing, the jury may find that the beneficial ownership of the fi. fa. issued on such judgment is in the estate.</p> <p>3. Where the executor acknowledged an indebtedness of $11,000 to the'estate, and in consideration thereof conveyed certain land to legatees, one of whom was his wife, and the others his minor children, and no reference was therein made to the note, and suit thereon was thereafter brought by E. J. D., executor of M. G., and no returns or other evidence introduced to connect the deed and execution, or to rebut the conclusion arising from the proof of the estate’s ownership of the note, a verdict finding that the execution was not the individual property of E. J. D. was supported by the evidence.</p> <p>4. Sayings of the deceased, in which he claimed to own the fi. fa., were properly excluded; for while declarations of one as to his own title are admissible to show adverse possession, they are not competent to establish ownership.</p> <p>5. Where ownership is once shown to be in an estate, the executor can not acquire title by adverse holding.</p> <p>6. The verdict not being general, but in answer to questions propounded to the-jury by the court, as to the sufficiency of which there was no complaint, grounds of the motion for a new trial not predicated upon matters affecting-such answers are necessarily without merit. Civil Code, § 4849.</p> <p>7. The right to the attorney’s lien, and the effect and extent thereof, were not covered hy the verdict found; and there being no contention that the amount of the fee was too small, or contrary to evidence, the judgment is. affirmed.</p>

<p>Certiorari. Before Judge Butt. Talbot superior court. September 29, 1902.</p>

Complaint. Before Judge Littlejohn. Macon superior court. January 28, 1903. Heywood Clark sued A. E. Shealy & Brother, to recover the value of 3,711 pounds of cotton, alleging as follows: He rented a plantation to M. B. Gilmore, for the year 1901, for 10,000 pounds of cotton, the same to be due on October 1, 1901; this contract being in terms like one that had obtained in the preceding year.

<p>Where the equity of redemption is levied on, it requires the consent of the mortgagor, mortgagee, and plaintiff in fi. fa. to sell the entire interest in the property so as to free the same from the lien of the mortgage.</p>

Habeas corpus. Before Judge Hendersou. City court of Vienna. March 30, 1903. In each case the plaintiff in error was tried before the mayor of the City of Vienna on the charge of doing business in that city without a license, and was found guilty; and a fine of $100 was assessed.

<p>Certiorari. Before Judge Seabrook. Berrien superior court. October 15, 1902.</p> <p>1. The plaintiff in error contended that the judgment dismissing the certiorari, ordering the judgment of the lower court to proceed, etc., was a final judgment disposing of a case turning solely on an issue of fact; and cited Civil Code, §§ 4652, 4655-6 ; 66 Ga. 242; 68 Ga. 517; 100 Ga. 700; 102 Ga. 151, 561; 106 Ga. 205; 107 Ga. 784.</p> <p>2. After it appeared that the plaintiff’s cow was killed by a train of the- defendant, the engineer of the locomotive testified that the cow was about 50 yards ahead when she got on the track; that as soon as he discovered her he gave the cattle alarm, applied the brakes, and did all he could to stop the train; and that rain was falling, and thus it was impossible to stop as quickly as if the track had been dry. A witness testified that he was on the track from a fourth to a half of a mile ahead of the train, and saw it strike the cow. In his opinion the engineer began blowing the whistle about a fourth of a mile from where the cow was struck. The track was a little up grade at that point. Other cows were near by. “ He could not tell how far the cow was fr,om the train when she got on the track, but looked to be pretty close by.” The train slowed up considerably before it struck her. The plaintiff testified that he went immediately to where the cow was killed. He tracked her over 300 yards from where she started to where she was killed. He was not looking at her when she made the tracks along the road. Counsel for the defendant, on the contention that a finding for the plaintiff was unsupported, cited 85 Ga. 825; 108 Ga. 437; 111 Ga. 128, 731.</p>

<p>Guardianship of imbecile. Before Judge Roberts. Montgomery superior court. October 31, 1902.</p>

<p>Quo warranto. Before Judge Roberts. Twiggs superior court. February 12, 1903.</p>

<p>Complaint. Before Judge Nottingham. City court of Macon. October 4, 1902.</p>

<p>Affidavit of illegality-, etc. Before Judge Janes. Haralson superior court. January 21, 1902.</p> <p>On the rulings in the second headnote see Civil Code, §§ 4988, 4981, 4774; Ga. Rep..47/320 ; 49/231; 52/451; 53/492; 55/396, 677; 56/51,439; 57/489; 59/461,607; 63/482; 68/215; 70/633; 71/860; 76/97;81/162; 96/130; 97/769;106/453;19 Enc. Pl. & Pr. 707 (2), 709 (c); 124 Ind. 484.</p>

<p>Levy and claim. ' Before Judge Reagan. Butts superior eourt. October 20, 1902.</p>

<p>Action for damages. Before Judge Reagan. Eayette superior court. January 9, 1903.</p>

<p>Petition for certiorari. Before Judge Reagan. Monroe superior court. November 11, 1902.</p>

<p>Citation for settlement — appeal. Before Judge Reagan. Pike superior court. January 19, 1903.</p>

<p>Affidavit of illegality. Before W. S. Upshaw, judge pro hac vice. Morgan superior court. September 1, 1902. .</p>

<p>Complaint for land. Before Judge Foster. Laurens superior court. October 27, 1902.</p>

<p>Year’s support. Before Judge Butt. Talbot superior court. September 15, 1902.</p>

<p>Certiorari. Before Judge Butt. Talbot superior court. September 29, 1902.</p>

<p>Certiorari. Before Judge Butt. Talbot superior court. September 29, 1902.</p>

<p>li' Possession of land is notice to the world of whatever title or right the occupant has.</p> <p>2. Where one enters into possession of land under a valid parol contract of exchange with another, and surrenders, under such contract, possession of land owned by him, he obtains a complete equity in the land acquired bp the exchange, superior to the legal title of the other party to the contract.</p> <p>.3. The holder of a deed to the land exchanged under such á contract, executed by the party last named after the other party to the contract had entered into possession, can not recover from the latter possession of the land.</p>

<p>Affidavit of illegality. Before Judge Butt. Talbot superior court. November 1, 1902.</p>

<p>A shipper of live stock entered into a special contract with the carrier, and, in consideration of a reduced freight rate and free passage of the shipper, agreed to release the carrier from any loss that might be occasioned by the animals injuring each other or themselves, or that might arise in consequence of their fright or viciousness. The contract recited that the shipper had examined the par provided for the transportation of the stock and found it in good order and condition, and stipulated that he accepted the same and agreed that it was suitable and sufficient for the purpose intended. Held:</p> <p>1. Upon the trial of an action brought by the shipper against the carrier for damages, for the value of one of the animals, alleged in the petition to have died from injuries caused by a defect in the car, consisting of a crack therein in which the animal got its foot, the burden of proof was upon the plaintiff to show that such defect was not patent when he examined the car, and was, therefore, not covered by his agreement.</p> <p>2. Such burden was not carried by showing merely that the crack into which the animal got its foot was the space between the slats of the car, some three and a half or four feet above the floor thereof.</p>

<p>Action for damages. Before Judge Sheffield. Early superior court. October 8, 1902.</p> <p>cited 71 Ga. 61; 87 Ga. 463; 91 Ga. 377; 110 Ga. 659; 115 Ga. 361, 705; 75 Ga. 786; 113 Ga. 514; Civil Code, §§ 3019, 3021, 3032, 5243; 112 U. S. 331, 28 L. ed. 717; 6 Cyc. 400.</p> <p>cited Civil Code, § 2896; 66 Ga. 492; 88 Ga. 813 ; 93 Ga. 810 ; 95 Ga. 452; 110 Ga. 659 ; 36 Ga. 646; 5 Am. & Eng. Ene. L. (2d ed.) 458.</p>

<p>Petition for certiorari. Before Judge Sheffield. Clay superior court. August 23, 1902.</p>

<p>1. Where several parties are asserting conflicting rights in the same property, and two seek an injunction against one to prevent the exercise of acts of own- • ership resulting in irreparable injury, and to avoid a multiplicity of suits; and where the latter in turn asks for an injunction against one of the others, to restrain acts tending to irreparable injury ; and the court finds that the status should be preserved, and grants an injunction, but allows one of the parties to dissolve the same by giving bond: Held, that the order should be so modified as to strike the permission to give a bond and make the restraining order absolute against both.</p> <p>2. Where tfie court finds that the status should be preserved, and orders an injunction accordingly, neither party should be allowed to change the status by giving a bond.</p> <p>45. Where, under the Civil Code, § 4916, a trespass is enjoined in order to prevent circuity of actions and a multiplicity of suits, all parties to the circle of actions should be enjoined, and not one only.</p>

<p>1. A suit against “ A., administrator, ” on a promissory note containing the words “I promise to pay,” and signed “B. Estate A., administrator (L. S.),” is a suit against A. as an individual.</p> <p>2. A plea of plene administravit filed in such a suit by “ A., administrator,” is a plea by the defendant as an individual, and is an insufficient answer to the suit. When such a plea is stricken on demurrer, the defendant is liable for attorney’s fees, where the note provides for the payment of attorney’s fees and was executed prior to the passage of the act approved December 12,1900 (Acts 1900, p. 58). Van Epps’ Code Supp. § 6185.</p>

<p>Action for breach of warranty. Before Judge Covington. City court of Moultrie. January 3, 1903.</p>

<p>Ejectment. Before Judge Spence. Decatur superior court. November 13,1902.</p>

<p>Complaint. Before Judge Reagan. Brooks superior court. December 16, 1902.</p>

<p>1. Where one undertakes to perform for another service or labor for a given sum any amount paid in excess of that sum, not based upon a new consideration, is a mere gratuity.</p> <p>2. A employed B to build a house for the sum of $1,400. A paid the $1,400 before the completion of the house; and it becoming apparent that B would be unable to comply with the contract without suffering loss, B was told by A to estimate what sum would be necessary to complete the building, and upon being informed that $350 would be required, B was told to complete the building and this amount would be paid in addition. Under this latter arrangement B was to do only what was contemplated by the original contract. After the $1,400 had been paid and before the payment of the $350, A was served with a summons of garnishment in a suit against B, and judgment was rendered in favor of the garnishee. Held: (1) That the agreement to pay the additional sum of $350 was a nudum pactum. (2) That at the time of the service of the summons of garnishment the relation of debtor and creditor did not exist between A and B.</p>

<p>One able to read, who executed a written contract without reading it, can not avoid liability thereon because he signed without knowing the contents of the contract, when his so doing was not induced by any action or representation amounting to fraud on the part of the person with whom he was dealing.</p>

<p>Complaint for land. Before Judge Brinson. Richmond superior court. January 31, 1902.</p>

<p>Action on insurance policy. Before Judge Reynolds. City court of Waycross. December 10, 1902.</p>

<p>Petition for injunction. Before Judge Parker. Coffee superior court. March 24, 1903.</p>

<p>Complaint. Before- Judge Gober. Cherokee superior court. September 22, 1902?</p>

<p>Application for temporary alimony. Before Judge Parker. Glynn superior court, April 4, 1903.</p>

<p>There was no error in any of the rulings on (lie admission of evidence which were complained of. The evidence demanded the verdict as rendered, and there was no error in directing the jury to find the same.</p>

<p>1. An affirmance or ratification of a contract which is voidable for fraud, in order to bind the party making it, must be made with actual knowledge of the fraud, or under such circumstances that the exercise of ordinary diligence would lead to its discovery; and whether or not such diligence has been exercised is a question for the jury.</p> <p>2. The verdict was warranted by the evidence, and the court did not err in overruling the certiorari.</p>

<p>1. Where the heirs at law of an estate have recovered against the administrators judgments de bonis testatoris and de bonis propriis, they can not for the same cause of action recover another judgment de bonis propriis against the administrators upon their bond.</p> <p>2. Where suit on such bond, against the administrators and the sureties, is commenced in the court of the county of the residence of one of the administrators, against whom no recovery can be had, and all of the sureties reside in other counties, the court has no jurisdiction of the sureties, and the action should be dismissed on demurrer.</p>

<p>1. On the controlling question in each of these cases the ruling in the third headnote in the case of. Americus Oil Company v. Gnrr, 114 Ga. 624, is decisive.</p> <p>2. Suit was brought upon an account for a stated quantity of cottonseed sold and delivered at a given price per ton. An amendment was offered alleging that the defendant agreed to take the cottonseed and deliver to plaintiff cottonseed meal, which he had failed to do, the amendment averring that as a result of such failure the defendant had become liable to plaintiff in a stated sum. Held, that the amendment set forth a new cause of action and was properly disallowed.</p> <p>3. There was no error requiring a reversal of the judgment in either case.</p>

<p>Petition to vacate assignment. Before Judge Bower. City court of Bainbridge. September 4, 1902.</p>

<p>Attachment and claim. Before Judge Bower. ' City court of Bainbridge. September 9, 1902.</p>

<p>1. This court has jurisdiction to review the judgments of the city court of Bainbridge upon direct writ of error.</p> <p>2. Under the ruling made in the case of Southern Railway Go. v. Pace, 114 Ga. 712, and the cases which that decision followed, the evidence in the present case was not sufficient to authorize a verdict for the plaintiff, and a new tidal should have been granted.</p>

<p>Exceptions to auditor’s report. Before Judge Bower. City court 'of Bainbridge. September 2, 1902.</p>

<p>Exceptions to auditor’s report. Before Judge Bower. City-court of Bainbridge. October 6, 1902.</p>

<p>1. In a suit against the Stuart Lumber Company, where the sheriff returned that he had “ served the defendant, H. M. Graham, general manager of the ” company, by leaving a copy of the writ “ at his most notorious place of abode,” a written motion to dismiss, filed at the appearance term, should have been sustained.</p> <p>2. In Water Lot Company v. Bank, 30 Ga. 685, where a somewhat similar return was sustained, the mocion was made two years after the judgment, and the code has so changed the statute as to require that the writ be left at the piace of business of the company, or be served personally on the officer or agent.</p>

<p>While, under the Civil Code, §3898, all “actions for trespass upon or damages to realty ” become barred if not “brought ■withinfour years after the right of action accrues,” yet when there is a continuing trespass, as where persons other than the owner of a tract of land covered with pine timber wrongfully enter thereon, box the trees for turpentine purposes, and work the same for a number of years, the party aggrieved may maintain an action for the recovery of all damages arising from such trespass within-a period of four years prior to the date upon which he institutes suit, irrespective of the time when the initial act of trespass was committed.</p>

<p>1. There is no provision of law for exceptions pendente lite in the county court.</p> <p>2. An appeal being a de novo investigation, the superior court may hear and sustain a demurrer which has been previously heard and overruled in the county court.</p> <p>3. Where a bond was given at the time of the original construction of a bridge over a stream between two counties, the law did not require a bond for the repair of such bridge, when the cost of the repairs was less than $500.</p> <p>4. A petition will be most strongly construed against the pleader; and where it is doubtful whether he charges that a bridge was “repaired” or “rebuilt,” and fails to show that the cost thereof was $500 or more, he sets out no cause of action against the county for injuries caused by defects in the bridge arising since the alleged “ repair ” or “ reconstruction. ’ ’</p>

Action for damages. Before Judge Griffin. City court of Valdosta. ■ January 2, 1903. The suit was brought in May, 1902.

<p>Action for damages. Before Judge Roberts. Montgomery superior court. December 13, 1902.</p>

<p>Equitable petitiou. Before Judge Dart. Clinch superior court. December 29, 1902.</p>

<p>Injunction. Before Judge Roberts. Wilcox superior court. April 15, 1903.</p>

<p>1. The power of legislation may be taken away from the lawmaking body by the constitution as well by implication as by express prohibition, and prohibitions against legislation which result by implication ai’e equally as effectual as when they are express, and are to be regarded in the one case no less than in the other.</p> <p>2. It is to be necessarily implied from the provisions of the constitution in relation to the incurring of indebtedness by municipalities, that the General Assembly has not the power to provide for the submission of such questions to the qualified voters in connection with other issues entirely foreign to the matter of the debt sought to be incurred.</p> <p>3. The question as to the establishment of the enterprise or project for which the debt is to be incurred may be submitted in connection with the question of incurring the debt; but the better practice, even in such cases, is to submit these questions separately.</p> <p>4. If a statute is in part valid and in part invalid, and the objectionable portion is so connected with the general scheme of the statute, that, should it be stricken out, effect can not be given to the legislative intent, the whole statute must fall.</p> <p>5. Applying the principles above laid down to the facts of the present case, the court erred in not granting the injunction prayed for.</p>

<p>Equitable petition. Before Judge Brinson. Richmond superior court. January 31, 1903.</p>

<p>Trover. Before Judge Eelton. Crawford superior court. March term, 1902.</p>

<p>1. Where a note for the purchase of personal property is signed by a maker and surety, the sale is prima facie to the maker of the note and not to the surety.</p> <p>% Where a conditional sale note is not recorded, and the maker thereof executes a mortgage on the personal property to one without notice of the conditional sale, the lien of the mortgage is superior to the title of the vendor, even if the personal property is thereafter surrendered to him ; and if, with actual notice of the existence of the mortgage, the original owner conceal the property for the purpose of preventing the same from being taken in satisfaction of the mortgage debt, he is liable in damages to the mortgagee for the value of' the property, not exceeding the amount of his debt, with interest from the date of the concealment.</p> <p>S. The lien inheres in the mortgage and not in the execution, and the mortgagee may institute such an action for damages before or after foreclosure proceedings.</p>

<p>1. Whether a regulation adopted and sought to he enforced by a carrier of passengers is or is not reasonable is a question of law, and not one of fact for determination by a jury.</p> <p>2. In the absence of any duty devolving upon a railway company to provide at its stations a place wherein its patrons may sleep while awaiting the arrival or departure of trains, a regulation forbidding passengers from going to sleep in its waiting-rooms or lying down on the benches therein is not, in a legal sense unreasonable.</p> <p>8. A passenger who displays a persistent determination to disregard sucb a regulation, and by his wrongful conduct so exasperates a servant of the company as to unfit him for properly performing the duty he owes his master with respect to his treatment of its patrons, can not justly complain that the company’s servant lost his temper and resorted to unnecessary force in compelling an observance of the regulation on the part of the passenger.</p>

<p>1. A verdict without a judgment will not sustain a plea of res adjudicata. Even if the verdict could be used as evidence establishing the rights of those in whose favor it was rendered, yet, upon due notice by the losing party of an intention to move for a new trial, the judge having jurisdiction of the parties and subject-matter could have granted time in which to move for a new trial, or otherwise stayed or suspended the effect of the verdict as evidence.</p> <p>2. ' Where, for the purpose of obtaining an equitable set-off, H. filed a petition to enjoin a judgment against him held by a member of a firm against which H. had suits then pending, which suits subsequently resulted in favor of the defendant firm, it was competent, during the same term on the trial of the petition for permanent injunction, for H. to prove that he expected to move for a new trial.</p> <p>3. After notice of such intention to move for a new trial, the verdicts should not have been treated as a final adjudication that If. had no claim which could be set off in equity against the judgment.</p> <p>4. Notwithstanding such verdicts, if the proof sustained the allegations in the petition, I-I. would be entitled to an injunction with a provision that the same be vacated unless, in due time and form, he moved for a new trial or excepted, and the judgment of the court below was reversed.</p>

<p>1. In a suit for damages against a railroad for injury to live stock shipped over the defendant’s line, where it appears that by a special contract signed by the plaintiffs as well as the agent of the railroad company, the consideration of which was the grant of a reduced freight rate on the shipment, the plaintiffs agreed that the defendant should be liable only as a private carrier for hire, it was error for the court to charge that the railroad company was bound to the exercise of extraordinary diligence.</p> <p>2. Where, by the contract referred to, it was agreed that in the event of damage to the stock, for which the railroad company might be liable, the amount claimed should be limited to a certain amount for each of the animals shipped, it was error for the court to charge the jury, without qualification, that if they found the defendant liable, the measure of damages for the horses killed would be the market value'of the horses.</p>

<p>1. A petition which sets up that the defendant is indebted to the plaintiff in a named sum of money, to secure the payment of which a deed to described real estate was given; that the debt has been sued to judgment, execution issued, and a levy made “ in conformity to the law,” whereupon a claim was filed by the wife of the defendant on the ground that she was entitled to the property in dispute, under a homestead granted to her and her minor children ; that the levy was then dismissed by the plaintiff; that the homestead sought to be set up is, for reasons stated, invalid ; and which prays for a decree setting aside the homestead as to the debt due to the plaintiff, and for other appropriate equitable relief, sets out a good equitable cause of action and is not subject to a general demurrer.</p> <p>2. Nor is such a petition demurrable on the ground that the plaintiff has a complete and adequate remedy at law.</p> <p>3. In defense to an equitable petition to set aside as invalid a homestead, and to subject to a debt land which was given as security therefor, the defendant can not plead usury in the debt, where it appears that he is concluded as to that defense by a judgment previously rendered by a court of competent jurisdiction.</p> <p>4. Real estate of more than $500 value, situated in a city, town, or village, can not be set apart as a homestead, under the Civil Code, § 2866.</p>

Action for damages. Before Judge Nottingham. City court of Macon. July 12, 1902.

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

<p>Complaint. Before Judge Felton. Houston superior court. -August 1, 1902.</p>

Ejectment. Before Judge Felton. Bibb superior court. June 12, 1902. Under the deed Johnston took no interest, but was trustee for his wife and children: Civil Code, §3148; 69 Ga. 302; 70 Ga. 158; 95 Ga. 778. It was an executory trust: Civil Code, § 3156; 67 Ga. 264; 68 Ga. 718;.70 Ga. 806; 75 Ga. 436; 84 Ga. 392; 91 Ga. 305; 92 Ga. 772; 93 Ga. 334.

Equitable petition. Before Judge Felton. Houston superior court. August 1, 1902. Mrs. Clark filed a petition to restrain Mrs. Berry from cutting timber on land lot number 102 in Houston county. Mrs. Berry defended on the ground that the timber being cut was on lot 103, to which she had title.

<p>1. A legislative act which imposes a specific tax on certain business occupations and which does not become operative until the commencement of the year following its passage is not retroactive or violative of that section of the Federal constitution which forbids a State’s passing any ex post facto law or law impairing the obligation of contracts.</p> <p>2. A tax on the privilege of selling goods is, in effect, a tax on the goods themselves.</p> <p>3. One who in this State, as the agent of a principal residing in another State, takes orders on such principal for the purchase of goods held in such other State, and who, when the goods are shipped by his principal to him, receives-them m this State and delivers them in the original packages to the customers-from whom he obtained the orders, and upon delivery receives from them the price of the goods, is engaged in interstate commerce</p> <p>4. When goods, the property of a resident of another State, are shipped from that State to the owner’s place of business in this State, there to be stored and offered for sale m open market by his agent, the business of selling them in tliis State is not interstate commerce, but is subject to taxation by the State. The constitution of the United States protects such goods only to the extent of preventing State legislation which imposes on them, because of their origin, burdens which are not imposed upon goods the product of the State imposing such burdens.</p> <p>5. One who is subject to a specific occupation tax by reason of his conducting, for another, a domestic business within this State, is not rendered exempt from such tax because he also conducts, for the same principal, other business which is not subject to State taxation.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton superior court. June 24, 1902.</p>

<p>The petition for certiorari presented to the court below contained no legally sufficient assignment of error, save one to the effect, that the verdict therein complained of was contrary to law and the evidence; and as the answer of the magistrate in whose court tire trial was had neither adopted as correct the brief of evidence incorporated in the petition nor set forth the evidence which was introduced at the trial, and as no steps were taken by the plaintiff in certiorari to have the magistrate’s answer perfected, the case was ripe for dismissal when called for a hearing in the superior court.</p>

<p>1. A father may, in this State, release to another the right to the custody and control of his minor child.</p> <p>2. One to whom the parental power over a minor is awarded has no power to appoint a testamentary guardian for such minor.</p> <p>.8. W., by a written agreement, released to L. and wife (his parents-in-law) all his parental power, custody, and control over his minor son, a child less than two years old. L. confided the personal care of the child to his daughter, H., and she since that time has occupied in every way the relation of a mother to the child. L. survived his wife, and died when the minor was nine years old, leaving a will in which he undertook to appoint his son guardian of the' minor. H. continued to exercise parental power over the child for more than five years, without interference from the father, and with his full acquiescence. The father, since the agreement with L., has never contributed anything to the support of his child. Held, that the father, by long acquiescence in the control of the minor exercised by H. since the death of L., and his failure to contribute anything to its support or to assert his parental authority in that time has lost his right to the custody of the minor.</p> <p>4. In habeas corpus cases for the custody of a minor, the paramount consideration is the welfare and happiness of the minor and in determining that, the trial court is vested with a large discretion. Where the circumstances justify it, the wishes of the minor may properly be consulted in determining to whom the custody shall be awarded.</p>

<p>1. Where one enters into a written contract granting to a telephone and telegraph company the right to construct lines of telephone and telegraph over property which, he owns or in which he has an interest, it is error, m a suit brought by the company to enforce the contract, to admit parol evidence showing that it was the -understanding of the parties, when the contract was entered into, that the contemplated line of telephone and telegraph was to be erected along-a specified portion of property owned by the other party to the contract.</p> <p>2. Where a contract contains a recital of the payment of one dollar as its consideration, the contract is valid though the sum named was not actually paid. It creates an obligation to pay that sum, which can be enforced by the other party.</p> <p>3. In a suit brought by the telephone and telegraph company to enforce a contract of the nature indicated in the first headnote, it is not competent for the other party to set up, as a reason for its non-enforcement, that he was not the sole owner of the property, his alleged co-owners not being parties and raising no objection.</p>

<p>1. The writ of certiorari does not lie from a decision of a justice of the peace, in a case pending in the justice's court, until after the linai determination of the case m which the decision was made, even though the decision would, had it been rendered as claimed by the plaintiff m certiorari, have been a final disposition of the case.</p> <p>2. In so far as the decision in Starnes v. Tanner, 78 Ca. 144, conflicts with the above headnote, it is, upon a review thereof, overruled.</p>

<p>1. A warrant to dispossess a tenant who is holding over beyond his term, or who has failed to pay rent due, may be issued upon an affidavit made by an agent of the landlord.</p> <p>2. In a ease where the undisputed evidence shows that the relation of landlord and tenant exists between the parties, the execution of a warrant to dispossess the tenant will not be enjoined by a court of equity ; the remedy of the tenant, if he has any defense, being to file the counter-affidavit provided for by the statute; and this is so though the tenant, on account of poverty, may be unable to give the bond and security required as a condition precedent to the filing of such counter-affidavit.</p> <p>3. The rule, that a tenant can not set up a title to the rented premises in opposition to that claimed by his landlord, is applicable although at the time the contract of rent was made the tenant was in possession claiming title to the premises.</p> <p>4. None of the rulings made during the progress of the trial, even if erroneous, were of such a character as to authorize a reversal of the judgment refusing to grant an injunction, and such judgment was under the facts the only proper one which could have been rendered.</p>

<p>Equitable petition. Before Judge Brinson. Richmond superior court. June 13, 1902.</p>

<p>1. Astipulation in the lease of a building, “that the expense of keeping said building in repair during the continuance of this lease is to be borne equally between said parties, but before any repairs are made the nature and cost of same are to be submitted by each party to the other and mutually approved by them,” may, so far as it requires the nature and cost of the repairs to be submitted and mutually approved, be waived by the tenant; and such waiver will result from his continuously, during tiie existence of the lease, requesting repairs to be made, allowing the landlord to nave them macie without submitting the nature and cost of the same, standing by and seeing them made without raising any objection to the landlord s failure to comply with the stipulation in the lease, and accepting the benefit ot me repairs after they are 'so made.</p> <p>2. No sufficient reason has been shown for reversing me judgment complained of.</p>