Volume 119 — Georgia Reports

<p>1. The refusal of the court to sustain a motion to dismiss an action on the ground of a misjoinder of parties defendant is not a proper matter for a ground of a motion for new trial.</p> <p>2. In the trial of an action for damages for fraud and deceit by which the plaintiff was induced to enter into a written contract, parol evidence is admissible to show false representations made pending the negotiations which resulted in the written contract between the parties.</p> <p>3. There is no error in refusing a request to charge which is unintelligible.</p> <p>4. Where the terms of a contract are ambiguous, the intention of the parties is a question for the jury.</p> <p>5. Where an action is brought for false representations, the question whether the plaintiff could by the exercise of ordinary diligence have discovered the falsity of the representations is for the determination of the jury.</p>

<p>Attachment. Before Judge Kimsey. Dawson superior court, February 9, 1903.</p>

<p>1. A deed, given to secure the payment of notes, which describes the property conveyed by setting out the numbers of the land-lots composing the tract, and not by metes and bounds, does not necessarily imply that the land-lots are pledged separately ; and where the special judgment against the land obtained in a suit on the notes, and the execution issued thereon, merely follow the description of the land contained in the deed, this does not constitute, as matter of law, a mandate to the levying officer to sell the lots separately.</p> <p>2. The main object to be considered in the conduct of judicial sales is to make the property bring the best possible price ; and in the effort to attain this object the sheriff, in the absence of instructions from the court, is invested with a discretion. Where the property is susceptible of division and a sale in parcels will produce a better price than a sale in bulk, the property should be so sold. If such is not the case, the property may be sold in bulk.</p> <p>3. In the trial of an action to set aside a sheriff’s sale of land, it being contended by the plaintiff (the defendant in execution) that the sale was void because conducted in an unauthorized manner, where the defendants sought to show that the sale was conducted in pursuance of a request made of the sheriff by an alleged agent of the plaintiff, and the plaintiff contended that such person had no authority to represent him in the making of the request indicated, it was proper for the court to submit to the jury the question whether there was an agency, and whether the alleged agent made the request attributed to him.</p> <p>4. The fact that the trial court charged, the jury on an issue not made by the pleadings will not be cause for a new trial, where it appears that the charge given had a tendency to benefit, rather than to injure, the complaining party. Especially is this true when the judge certifies that counsel for the movant argued before the jury the question upon which the charge complained of was given.</p> <p>6. Inadequacy of price, though gross, will not be sufficient to set aside a sale, unless coupled with other circumstances sufficient to give rise to a presumption of fraud. This is a rule of. evidence; for the law does not set aside the sale on account of the inadequacy of price, hut because of the fraud which it is supposed to indicate; and inadequacy of price alone is declared to be not sufficient to warrant a presumption of fraud.</p> <p>6. Even if Civil Code, §4856, is applicable to a case like the present, where a sheriff’s sale is attacked as void by an equitable petition filed by the defendant in execution, a trial had before a jury, who find that the sale was valid, the verdict approved by the trial judge, and judgment rendered thereon, this is a sufficient confirmation of the sale to meet the requirements of the code section cited.</p> <p>7. The evidence was in many particular’s conflicting, but was sufficient to sustain the verdict rendered ; the trial court has set the seal of its approval on that verdict, and this court will not interfere with the judgment overruling the motion for a new trial.</p>

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

<p>Certiorari. Before Judge Kimsey. Habersham superior court. March 5, 1903.</p>

<p>Certiorari. Before J. D. Attaway, judge pro hac vice. Cherokee superior court. February 28, 1903.</p>

<p>Certiorari. Before Judge Gober. Fannin superior court. May 29, 1903.</p>

<p>Motions to dismiss the writs of error.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. April 13, 1903.</p>

<p>Equitable petition. Before Judge Eite. Catoosa superior court. February 3, 1903.</p>

<p>Equitable petition. Before Judge Eite. Whitfield superior court. April 14, 1903.</p>

Equitable petition. Before Judge Fite. Dade superior court. April 11, 1903. The tax-collector of Dade county, on December 20, 1895, issued a tax fi. fa. against J. H. Stark for $1.82 principal and 50 cents cost, which was levied on lot of land number 107, containing 160 acres more or less, as the property of Stark; and on March 3, 1896, the land was sold thereunder for $7.41 to Cummings, and a deed made to him by the sheriff.

<p>In a suit to foreclose alien on real estate, for materials furnished to a contract- or and used by him in improving said real estate, the contractor is a necessary party ; and where no process is prayed against such contractor, though he may be referred to in the petition as one of the defendants, and though the clerk annexes a process against “the defendants” generally, he is not thereby made a party, and a demurrer setting up these objections should be sustained.</p>

<p>Trover. Before Judge Fite. Catoosa superior court. August 5,1903.</p>

<p>Levy and claim. Before Judge Holden. Hancock superior court. June 4, 1903.</p>

<p>1. If a surety pays off a judgment against his principal with the money of the principal, he has no right to control the execution for the purpose of 'obtaining contribution from his cosureties.</p> <p>2. The evidence, though conflicting, was sufficient to authorize the verdict, and there was no error requiring the granting of a new trial.</p>

<p>Levy and claim. Before Judge Russell. Gwinnett superior court. March 3, 1903.</p>

<p>Certiorari. Before Judge Kimsev. Rabun superior court. March 2, 1903.</p> <p>Swafford sued Rembert, Shirley, and Dickson in a justice’s court, on a promissory note. At the first term Shirley pleaded that he signed the note as surety, and that he had verbally instructed Swafford to bring suit against Rembert, the principal, who at that time had property out of which the debt could have been made; that Swafford promised to sue Rembert, but failed to do so; and that later Rembert moved from the State. Judgment was rendered for the plaintiff, and there was an appeal to a jury in the justice’s court; whereupon Shirley filed an amendment by which he pleaded that the note had been altered; that when signed it read, “ Twelve months after date we promise,” etc., and that; without his knowledge or consent, the words “ Twelve months” were erased and the word “ One ” inserted, so as to make it read, “ One after date we promise,” etc. The plaintiff demurred to this plea, on the ground that it was not alleged that he made or knew of the alleged alteration. The demurrer was overruled. At the trial there was evidence that the note had been altered, but it did not appear who made the alteration. The jury rendered a verdict against Rembert as principal, and in favor of Shirley and Dickson as sureties. Swafford took the case to the superior court by certiorari, alleging that the verdict was contrary to law and the evidence, and that the magistrate erred in overruling the demurrer. The certiorari was sustained and a new trial granted, and Shirley excepted. In the petition for certiorari it was alleged'that Swafford denied that the note had been altered; but the answer of the justice makes no reference to such testimony.</p>

<p>Equitable petition. Before H. H. Perry, judge pro hac vice. Habersham superior court. March 4, 1903.</p>

<p>Complaint. Before Judge Gober. Cherokee superior court. February term, 1903.</p>

<p>Complaint. Before Judge Gober. Cobb superior court. March 10, 1903.</p>

<p>Equitable petition. Before Judge Gober. Cobb superior court March 31, 1903.</p>

<p>Complaint. Before Judge Gober. Cobb superior court. April 27, 1903.</p>

<p>Certiorari. Before Judge Gober. Cobb superior court. April 22, 1903.</p>

<p>Petition for certiorari. Before Judge Gober. Fannin superior court. May 29, 1903. .</p>

<p>Certiorari. Before Judge Gober. Cobb Superior court. May 29, 1903.</p>

<p>1. This court will in no case undertake to pass upon questions presented by a bill of exceptions, when it affirmatively appears that, even if the judgment of the court below were reversed, the plaintiff in error would derive no benefit from the adjudication.</p> <p>2. It appearing that since the refusal of the injunction prayed for in the court below, the defendant has done all that was sought to be enjoined, and that no supersedeas was granted, the writ of error will be dismissed without prejudice.</p>

<p>Action on bond. Before Judge Fite. Murray superior court. March 9, 1903.</p>

<p>Certiorari. Before Judge Fite. Whitfield superior court. May 4, 1903.</p>

<p>Equitable petition. Before Judge Fite. Dade superior court. April 11, 1903.</p>

<p>Complaint. Before Judge Holden. Elbert superior court. .May 5, 1903.</p>

<p>Rule for contempt. Before Judge Gober. Cobb superior court. June 6, 1903.</p>

<p>Probate of will — appeal. Before Judge Gober. Gilmer superior court. July 14, 1903.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. May 20, 1903.</p>

<p>Action for damages. Before F. A. Irwin, judge pro hac vice. City court of Cartersville. March 12, 1903.</p>

<p>Accusation of vagrancy. Before Judge Hodges. City court of Macon. October 17, 1903.</p>

<p>Indictment for murder. Before Judge Roberts. • Pulaski superior court. October 19,. 1903.</p>

<p>1. Where on the trial of an action for the recovery of land, brought by one who claimed to have purchased the same at a sheriff’s sale, against the defendant in the execution under which it was sold, the plaintiff introduced in evidence the sheriff’s deed, accompanied by an exemplification of a valid judgment against the defendant, and proof of the loss of the execution issuing therefrom, a prima facie case of title in the plaintiff was made out, and it was erroneous for the court to charge the jury that the sheriff’s deed could be considered only as color of title.</p> <p>(а) A judgment rendered by the court in 1869, in a suit on an unconditional contract in writing, where no issuable defense was filed under oath, in all respects regular except that it was not signed by the judge, is valid if entered on the minutes of the court and they are signed by the judge; and, in the absence of any proof to the contrary, it will be presumed that the judge signed the minutes.</p> <p>(б) Sufficient evidence was introduced in this case to raise a reasonable presumption that the execution was lost, and to show due diligence in searching for it.</p> <p>(c) The recitals in a sheriff’s deed, of the execution and the seizure and sale of the property by virtue thereof, are, when the execution is lost, prima facie evidence of the truth of such recitals.</p> <p>2. The declarations of an agent, who is in possession of realty merely to man age and care for the same, are not admissible in evidence against the principal to disparage his title.</p> <p>3. Where evidence is objected to as a whole, and some parts of it are admissible, it is not erroneous to overrule the objection.</p> <p>4. A judgment abating an action upon the ground that the plaintiff had brought the same without having paid the costs which had accrued in a previous suit, involving the same subject-matter and against the same defendant, which had been begun and dismissed by him, is no bar to the bringing of a third suit for the same cause of action and against the same defendant, if, before instituting the last proceeding, the plaintiff has paid all the costs which had accrued in the two previous suits.</p>

' Petition for injunction. Before Judge Felton. Bibb superior court. September 29, 1903.

Action for damages. Before Judge Proffitt. City court of Elberton. February 13, 1903. .. The petition alleged: On February 24, 1902, the plaintiff carried to the defendant’s railway station at Heardmont a. quantity of household goods, to be shipped to McCormick, South Carolina. The agent in charge of the station said that he had no scales on which to weigh them, but would ship them the next day..

<p>Complaint for land. Before Judge Lewis. Taliaferro superior •c'ourt. February term, 1903.</p>

<p>' Complaint for land. Before Judge Lewis. Taliaferro superior court. February term, 1903.</p>

<p>The evidence authorized the verdict, and there was no error requiring the granting of a new trial.</p>

Action for damages. Before Judge Gober. Cherokee superior court. August 6, 1903. .„ -■ The action was on account of the killing of the plaintiff’s husband by a train of the defendant.

<p>Where a contract of sale is made, by the conditions of which the purchaser is granted special credit terms upon his executing notes for the purchase-money within a stipulated time after the date of the sale, and he fails to give the ■ notes within the time required by the contract, but the vendor (a nonresident of the State).agrees to extend the time for the making of the notes, upon the express condition that the purchaser will execute a particular set of notes enclosed him in a letter, and the purchaser signs the notes sent to him, after altering them so as to restrict their negotiability and recite their consideration, this is not a compliance with the requirements imposed as a condition to the extension of time ; and the vendor may then fall back upon his rights under the original contract of purchase and sale.</p>

<p>1. The refusal of a continuance is not cause for a new trial when the accused is not hurt thereby.</p> <p>2. Challenge to the array is not the proper method of raising the question of the disqualification of individual jurors.</p> <p>S. An indictment for simple larceny which charged the theft of “ one horse of the female sex, said animal being a dark bay mare,” was sufficiently specific as to the nature, character, and sex of the animal.</p> <p>4. As to the ownership of the animal alleged to have been stolen, the evidence fully sustained the charge as laid in the indictment.</p> <p>5. It was no cause for a new trial that the court charged as follows : “Now, if you find beyond a reasonable doubt from all the testimony submitted in the case, including the statement of the defendant — provided you see fit to give that statement any weight under the rules I have given you in charge.” Standing alone, this incomplete sentence was harmless.</p> <p>6. The alleged newly discovered evidence was merely cumulative.</p> <p>7. The verdict was warranted by the evidence, and the court did not err in refusing a new trial.</p>

<p>1. In an indictment for murder, which charges that the accused did kill and murder a named person by shooting him with a gun, from the effects of which shooting he died, it is not necessary to allege that the gun “ was loaded with powder and leaden balls.”</p> <p>2. Where in such an indictment the given name of the person alleged to have been murdered is interlined, in lieu of another name which is “ crossed out,” and is in different ink and a different handwriting from the rest of the indictment, a demurrer upon the ground that, for this reason, the person alleged to have been murdered is not sufficiently identified is without merit.</p> <p>3. Where the court-house of a county has been destroyed, an indictment found and returned into the superior court of such county, by a grand jury sitting in a building, located at the county site, which has been “provided ” by the proper county authorities as the place for holding that term of such court, is not void, although such county authorities may not, “ by order or resolution duly passed and placed upon their minutes,” have “constituted and designated ” such building as the place for holding the court, and may not have so “ constituted and designated ” it “by advertisement or in any other public and formal manner.”</p> <p>4. The verdict was amply supported by the evidence, and there was no error in overruling the motion for a new trial.</p>

<p>Accusation of keeping a lewd house. Before Judge Hodges. City court of Macon. October 5, 1903. " •</p>

<p>Accusation of selling liquor. Before Judge Adams. City court of Dublin. October 12, 1903.</p>

<p>Indictment for selling liquor. Before Judge Longley. City court of LaGrange. October 12, 1903.</p>

<p>1. In order for this court to control the discretion of the trial judge in refusing to grant a motion for the postponement of a criminal case to allow counsel to prepare for trial, it is necessary that it should appear that a gross mistake has been made by the trial judge, or that he has displayed a want of consideration for the rights of the accused.</p> <p>2. The evidence for the State authorized, even if it did not demand, a finding that the accused was guilty of murder. His statement was in effect a plea of guilty of this offense. The requests to charge, so far as legal and pertinent, were covered by the general charge. The charges excepted to were free from error ; and no sufficient reason has been shown for reversing the judgment overruling the motion for a new trial.</p>

<p>Accusation of larceny. Before Judge Hodges. City court of Macon. October 17, 1903.</p>

<p>Indictment for arson. Before Judge Lewis. Hancock superior court. October 5, 1903.</p> <p>The burned building was a barn on a farm. The fire was discovered between 11 and 12 o’clock at night. The top of the barn was then falling in. Nothing was known as to the origin of the fire. A witness testified that “ it seemed to have caught from the loft,” where hay was stored. The barn was not locked that night. The house in which the accused and his wife lived was a short distance from it. The fire occurred Sunday night. He had been at work there, with another 'man, Saturday, putting hay into the barn. The last time any of the witnesses saw him, before the fire, was Sunday morning. About sunrise the next day he came towards the barn, to where several persons were standing, and, when asked where he had spent the night, said that he'stayed at a certain plantation in the neighborhood (naming the place). To one of the witnesses he said he had gone to that place about sundown Sunday, after having spent the day at other places mentioned, and that he stayed there all night with a certain woman, in a house in the yard. There was no contradiction as to this. A witness testified : “ We investigated the matter, and were told that he did spend the night there.” When he came up to the party near the barn he was asked which way he had come, and he pointed to a wire fence and said he had come by that fence. He was theu told to get his mule and begin plowing in a certain field, which he did. The others then made an examination of tracks near the barn. The ground around it was very hard, and a number of persons had been walking about in'the lot while the fire was in progress. About 800 or 900 feet from the barn, tracks leading away from that direction and through a plowed field, about 9 or 10 feet apart, which seemed to be fresh and to have been made by a person running, were discovered. Dogs were brought from a convict camp, and they followed these tracks until they got to a fence. The dogs went through the fence, then left the “ running” tracks, and, going in a different direction, ran up the fence to a path which left it, then along the wire fence on the route by which the accused had said he came that morning, but, after going a short distance, went back to the place where -they had left the “ running ” tracks, and followed them until they went into the yard in which the accused had said he spent the night. It does not appear that the tracks or the dogs went to any particular place in the yard, or that any further use was made of the dogs. The dogs did not go near the accused or to his house. Witnesses 'testified that the tracks alongside the wire fence where the accused had said he walked were exactly like the “running” tracks which the dogs had followed into the yard, and that shoes of the accused, which were exhibited, corresponded with these “ running ” tracks; that a little piece of leather at the toe of each shoe, and nails or tacks ‘by which the piece had been put on, made an impression on the ground, which showed plainly in the tracks. Tracks were found which indicated that the person who made the “ running ” tracks had been standing with his face -in the direction of the barn before he commenced to run. There was no evidence as to motive for the alleged crime. The accused did not leave the neighborhood or attempt to conceal himself.</p>

<p>Accusation of larceny from the house. Before Judge Sparks. City court of Brunswick. October, 17, 1903.</p>

<p>Accusation of misdemeanor. Before Judge Sparks. City court of Brunswick. October 17, 1903.</p>

<p>Accusation of misdemeanor. Before Judge Raines. City court of Dawson. October 24, 1903.</p>

Action on contract. Before Judge Proffitt. City court of Elberton. June 27, 1903. Gairdner, Arnold, Cason, and Brown were partners doing business under the name of the Granite City Manufacturing Company. On the dissolution of the firm by the death of Gairdner, the other members agreed that Arnold should have entire control in winding up its affairs.

<p>1. A complainant seeking extraordinary equitable relief must make a case which does not rest upon doubtful or disputed principles of law; for an injunction will not usually be granted where his right thereto is not clear.</p> <p>2. In all cases the complainant must establish the existence of the fraud or fact .on which his right to interlocutory relief is based, and show the necessity for injunction in order to preserve rights or to prevent irreparable injury.</p> <p>3. A denial by the defendant of the facts set up in the equitable petition, or a conflict in the evidence, does not necessarily require a refusal of interlocutory relief.</p> <p>4. There should be a balance of conveniences in such cases, and a consideration whether greater harm might be done by refusing than by granting the injunction.</p> <p>5; Where the evidence is conflicting, and it appears that the injunction if . granted would not operate oppressively to the defendant, but that if denied the complainant would be practically remediless in case he should thereafter establish the truth of his contentions, it would be strong reason why the chancellor should exercise his discretion so as to preserve rights by preserving the status.</p> <p>6. Equity will not only relieve against a judgment obtained by fraud, but against one which has been properly rendered where the losing party has a meritorious defense and is prevented by the fraud of the other from entering an appeal or making a motion for a new trial.</p> <p>7. Where the evidence is conflicting and the defendant-is solvent,-and there is nothing to show that the complainant will suffer irreparable damage by reason of the refusal to grant the injunction, this court will not interfere 1 with the chancellor’s discretion in denying the same.</p>

<p>Citation and appeal. Before Judge Bartlett. Haralson superior court. February term, 1903.</p>

<p>Accusation of simple larceny. Before Judge Hodges. City court of Macon. October 24, 1903.</p>

<p>Citation and appeal. Before Judge Holden. Elbert superior court. January 5, 1903.</p>

<p>Equitable petition. Before Judge Gober. Milton superior court. March 3,1903.</p>

<p>Actio'n for damages — attachment. Before Judge Eite. Cherokee superior court. March 20, 1903.</p>

Possessory warrant. Before Judge Reece. City court of Floyd county. January 24, 1903. The bill of exceptions sets out the evidence introduced at the trial, and says : “ After hearing evidence and argument, the court then and there decided said cause adversely to this plaintiff in error, and entered up judgment for defendant. To which actions plaintiff then excepted and now excepts and assigns the same as error.” There is no further assignment of error.

<p>1. On all points not specifically dealt with in the opinion, the decision of a majority of this court when this case was here before (115 Ga. 511) is controlling ; and so far as the present case is concerned, that decision is not subject to review.</p> <p>2. The evidence warranted the verdict, and the record discloses no error by the trial court requiring the grant of a new trial.</p>

<p>Action for' damages. Before Judge Bartlett. Haralson superior court. August 1, 1903.</p>

<p>1. To authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Under the facts disclosed by the record, it was error to charge upon the subject of such damages.</p> <p>2. The court should not charge upon the subject of the impeachment of witnesses by proof of general bad character when the evidence discloses that no attempt was made by either party to thus impeach a witness.</p> <p>3. It is not error to charge that positive testimony is rather to be believed than negative, with the qualification that “other things are equal and the witnesses are of equal credibility.”</p> <p>4. After instructing the jury that if they believe the plaintiff has sustained permanent injuries, they may use. the mortality tables to aid in ascertaining his</p> <p>, probable length of life, the court should inform the jury how to estimate the damage after ascertaining the expectancy of the plaintiff. But if general instructions are given on the subject of the ascertainment of damages, more specific instructions on the subject, if desired, should be duly requested.</p> <p>5. - This being the third trial of this case, and the third successive verdict in favor of the plaintiff, direction is given that on another trial her righ,t to a recovery be not open to question, and that the court submit to the jury the sole question as to what shall be the amount of such recovery.</p>

<p>When there is no return or acknowledgment of service “indorsed upon or annexed to ” the hill of exceptions, the writ of error will he dismissed.</p>

<p>Complaint. Before Judge Bartlett. Haralson superior court. January 21, 1903.</p>

<p>Money rule. Before Judge Reece. City court of Floyd county. April 8, 1903.</p>

<p>Action for breach of contract. Before Judge Bartlett. Paulding superior court. February 10, 1903.</p> <p>. The action was by B. W. Brown and T. W. Taylor against L. N. Bowman. The petition as amended alleged: On® March 13, 1894, the plaintiffs entered into a contract with L. N. Bowman, which was in the following words and figures: “ State of ^Georgia, Paulding county. Know all men by these presents, that I, L. N. Bowman, of the county and State herein mentioned, do grant and give to B. W. Brown and T. W. Taylor the exclusive right to search for gold on the south half of lot of land number 419 in the 3rd district and 3rd section, and I, L. N. Bowman, agree to give said Brown and Taylor one half interest of all that is located or developed, with all rights of mining and mineral privileges, wood, water, and right of ways, and the right to sell their half; or, if we work said mine together, I, L. N. Bowman, agree to go half the expenses, and we will divide the proceeds; and if B. W. Brown and T. W. Taylor sell their half to other parties, I, L. N. Bowman, agree to make them good and sufficient titles, and will forever warrant and defend the same against all other parties whatever; as witness my hand and seal the date above written.” (Executed by Bowman, and attested.)</p> <p>The land referred to in said contract consists of about twenty acres, more or less, in said county of Paulding.' By virtue of said contract the plaintiffs entered upon said land, and, at great expense to themselves and after performing much careful labor thereon in mining for gold by sinking shafts aud cutting tunnels and doing much other necessary work, they developed and located valuable minerals, including gold. (Here followed an itemized statement, added by amendment, showing the number of days each of the plaintiffs was at work on the land, the value of each day’s labor, the expense incurred by each for board, the amount expended for other labor and for tools, the dimensions of a shaft or tunnel sunk by the plaintiffs, and that it was worth a stated sum per foot to remove the dirt in performing this work.) The gold so located was in the formation of the earth, that is, it was in its crude state. Plaintiffs did their said labor on or about March 13, 1894. By virtue of said labor resulting in said discovery, location, and development of said mineral and gold, said land’s value was materially enhanced, to wit, from the sum of $100 to- the value of $1,500, or other like value; and thereby plaintiffs “ were rewarded for their labor, money expended, time, etc., in the sum of $750, "had not said L. N. Bowman breached his contract, wronged, and defrauded petitioners, as hereinafter set out.” Plaintiffs fully complied with their said contract, which entitled them to one half interest in said land, of the value of $750, of which they have been deprived by reason of fraudulent and unlawful transfers and sales by defendant, herein set out. Soon after said location, discovery, and development of mineral and gold by plaintiffs, the defendant wilfully, fraudulently, and without plaintiffs’ knowledge or consent, sold and conveyed all of said land, mineral, gold, mining rights, etc., in said contract named, for $1,300, or other like sum, to innocent purchasers, whose deeds were legally placed of record, and which placed said mineral and gold beyond the reach of plaintiffs. (The names of the purchasers, the fractional interest sold to each, and the amounts paid were here stated.) Said act of the defendant was a distinct breach of his said contract, and damaged plaintiffs in the sum of $750, in this, that plaintiffs’ interest in said land, minerals, and gold was well worth and of the market value of $750.</p> <p>The defendant demurred on the following grounds: (1) No cause of action is set forth. (2) The alleged contract is void, because without consideration, and for lack of mutuality. (3) It is void for uncertainty. (4) The alleged damages are too remote and speculative to be recovered. (5) The land is not sufficiently described in the petition. (6) The amounts and items of expense incurred by plaintiffs, and the amount, nature, and value of the labor performed by plaintiffs are not sufficiently set forth. (7) The nature, character, condition etc. of the valuable minerals, and the value thereof, are not stated.</p> <p>The court sustained the demurrer, and the plaintiffs excepted.</p>

Action for damages. Before Judge Bartlett. Polk superior court. August 1, 1903. The action was against the Central of Georgia Railway Company (hereinafter called the Central company), for injuries from having been run over by an engine of the Chattanooga, Rome & Southern Railroad Company (hereinafter called the Chattanooga company), in Polk county, July 26, 1900.

<p>Certiorari. Before Judge Harris. ' Carroll superior court. April term, 1903.</p>

<p>Action for breach of contract. Before Judge Longley. City court of LaGrange. June 17, 1903.</p>

<p>Action for penalty. Before Judge Longley. City court of LaGrange. July 18, 1903.</p>

Equitable petition. Before Judge Reagan. Fayette superior court. April 16, 1903. In 1883 Miss M. A. Elder lent $550 to her brother, C. C. Elder, and he executed a note under seal to her for that amount and for interest at the rate of ten per cent, per annum.

<p>Petition to set aside judgment. Before Judgé Holden. Gre.ene superior court. February 11, 190.3. . ,</p>

<p>The forfeiture of a criminal recognizance can not be successfully resisted by an attack on the indictment returned against the principal, unless it appears that the indictment is void.</p>

<p>Even if the affidavit of foreclosure he treated as sufficient, the plaintiff was only entitled to a lien on the products of defendant’s sawmill in Washington cpunty ; and according to the only evidence in the case the property levied on was manufactured at his mill in Johnson county ; and the verdict finding it not subject was demanded by the evidence.</p>

<p>Levy and claim. Before Judge Lewis. Laurens superior court. April 6, 1903.</p>

<p>Certiorari. Before Judge Lewis. Morgan superior court. May 25, 1903.</p>

Action for damages. Before Judge Lewis. Baldwin superior court. July 13, 1903. A nonsuit was granted at the July term, 1901. On December 24, 1901, the plaintiff recommenced his suit.

<p>Complaint. Before Judge Holden. Greene superior court. July 22, 1903.</p>

<p>Levy and claim. Before Judge Lewis. Jones superior court. December 15, 1902.</p> <p>cited, as to sufficiency of description, Ga. Rep. 78/539 ; 83/645 ; 94/475.</p> <p>cited Civil Code, § 2724; Ga. Rep. 10/74; 67/97, 102; 70/756; 81/41, 42; 100/492; 107/281, 282; 116/351, 354, 355; Devlin on Deeds, §1010.</p>

Action for damages. Before Judge Holden. Greene superior court. August 1, 1903. Boswell was sued for damages alleged to have been sustained in consequence of failure to milk cows which he had impounded.

<p>Injunction etc. Before Judge Mitchell. Colquitt superior court. October 9, 1903.</p>

<p>Petition for mandamus. Before Judge Lumpkin. Fulton superior court. October 14, 1903.</p>

Accusation of trespass. Before Judge Adams. City court of Dublin. October 13, 1903.

Action for damages. Before Judge Reece. City court of Eloyd county. March 11, 1903.

<p>Motion to arrest judgment. Before Judge Reece. City court of Floyd county. February 23, 1903.</p>

<p>■ Certiorari. Before Judge Henry. Floyd superior court. April 14-1903. . -</p>

<p>1- Ail action for the malicious use of process in a civil suit will lie where the person of the defendant was arrested or-his property attached.</p> <p>2. The petition.set forth a cause of action for the malicious use of ball process in a trover suit, and.was not a composite petition setting forth three causes of action; for malicious use of process, malicious arrest, and false impris- ‘ ■ onment.</p> <p>3. In an action for the malicious use of bail process in a trover suit it is not necessary to allege that the defendant in the suit was actually imprisoned in the county jail. An averment that he was arrested under bail process and thereby restrained of his liberty is sufficient.</p> <p>4. '- Punitive damages are recoverable in an action for the malicious use of process in a civil suit.</p> <p>5.1 Ah amendment to a petition which, properly construed, is merely an amplification of the original petition, setting forth additional facts explanatory of the cause of action therein set forth, is allowable. •</p>

<p>Certiorari. -Before Judge Harris. Carroll superior court. April term, 1903.</p>

<p>-■ Action for damages. . Before Judge Harris. Troup superior .court. May 7, 1903.</p> <p>John B. Owens sued .-for an alleged tort of the railway company in requiring him to leave a passenger-train, -with a lunatic of whom he was in charge. The court directed a verdict for the defendant, and the plaintiff excepted. The following facts appear from the evidence: The plaintiff’s brother, Josh Owens, was adjudged to be a lunatic, and it was ordered that he be committed to the State Sanatorium at. Milledgeville, and the plaintiff and one Florence were appointed as guards to take him to that place. They handcuffed him and took- him to Mountville, a station on the defendant’s railway, for the purpose of going on the train to Macon, and thence to Milledgeville. The defendant’s agent at Mountville, who was a member of the jury which had declared Josh Owens to be a lunatic, saw them at the station, and sold the plaintiff three first-class tickets for passage on the train. When the train arrived, the plaintiff and Florence started towards one of the passenger-cars with the lunatic but the conductor in charge of the train told them not to take him in there, but to take him into another car, indicating, the one assigned to colored passengers, and said, “If he is violent, I can’t carry him at all.” The plaintiff and Florence then proceeded, with the assistance of others, to put the lunatic on the car indicated, he all the while resisting violently. When they got him on the top step of the car-platform, the general manager of the railway company came up and ordered them to take the lunatic off the train. Florence assured the eeneral manager that if they were allowed to remain on the 'train; the lunatic would be “ as quiet as anybody; ” whereupon the' lunatic, who (according to the plaintiffs evidence) had up to-that time-said iiothing, began to curse, and said,-“I’ll -be damned-' if-1 will.’? .After they were ordered off the train the guards requested to be allowed to take the lunatic into the baggage-car, but the request was refused. During the time he was on the train the lun.atic was i securely handcuffed. He was weak and emaciated, and the guards were strong and robust. The defendant had theretofore carried lunatics.- on the passenger-train, and had never refused to accept that class of passengers, when they were secured and guarded. After this train had left Mountville, the general manager offered to take the lunatic ou a freight-train. This offer was.declined, on the ground that the freight-train “did not make .connection.” There was evidence on the part of the defendant as follows: There.were only two passenger-coaches in the train, — -one. the “ ladies’ coach, ” which had a partition in it, cutting off a smoking compartment. All the seats of the smoking compartment were occupied by passengers. The other coach had a. compartment for colored passengers, in which was a colored woman, and the other part of that coach was used as an express car. It was against the rules of the railway company for passengers to ride, in the express car. Several ladies were in the ladies’ coach, and..one of them seemed to be in an advanced state of pregnancy. The windows of-the car were open, and they couid hear what was said by the lunatic. He used both profane and obscene language, and threatened to kill one of the guards. One of the men assisting him on the train was kicked by him in the region of the heart. The conductor offered to redeem the tickets. The general manager, offered to take the lunatic on the passenger-train the next day, if they would give him enough morphine to quiet and subdue him. The general manager returned to Mountville on an. engine, and told a brother of the lunatic, and others, that they, might take the lunatic on a freight-train, standing there, that would make connection at Macon with the train for Milledgeville, and proposed to carry him in the cab.</p> <p>cited 14 Lea (Tenn.); 128 ;■ 42 Miss. 607; 52 Minn. 296; 33 Kan. 54'3; 54 Fed. 416; 89 Va. 643; Civil Code, §§ 5331, 2267; Ga. Rep. 58/461; 89/503 ; 97/484; 98/495; 101/684; 107/757.</p> <p>cited Penal Code, § 902 ; 5 Ara. & Eng. Ene. L. (2d ed.) .537, 541; Ray on Negl. 163, 223-4, 360.</p>

<p>1. The refusal'to grant a nonsuit was not erroneous.</p> <p>2. A refusal to instruct the jury in accordance with a correct request, duly made' in writing and peculiarly appropriate to the facts of the case, is, when the refusal probably resulted in harm to the party making such request, cause requiring the grant of a new trial, though the court gave in charge an abstract principle of law covering the request.</p>

<p>Action for damages. '' Before Judge Reagan. Henry superior 'court. .'.Januáry 3Í, 1903.</p>

<p>Equitable petition. Before Judge Reagan. Fayette superior court. March 16, 1903.</p> <p>cited Civil Code, § 5872; Ga. Bep. 19/583; 12/613; 111/878; 83/223; 78/249 ; 74/273 ; 73/136; 61/128 ; 57/552; 47/342 ; 35/209.</p> <p>cited Ga. Bep. 77/504; 80/551; 93/579; 101/634; 103/738,809; 107/807; 110/20; 111/385; 112/591; 115/491.</p>

<p>1. In the trial of an action for divorce, brought by a husband against his wife on the ground of alleged cruel treatment, it is not error to reject evidence that she constantly quarrelled with, abused, and insulted her husband, and, by slandering him to her neighbors, injuriously affected his practice as a physician, and that she also spoke insultingly and abusively of his children and a former wife, their mother.</p> <p>2. Nor is it'error in the trial of such a case to reject evidence that the wife was an habitual user of morphine and almost all of the time under its intoxica- . ting influence.</p> <p>3. A juror is not disqualified by reason of the fact that he is the brother of the • wife of defendant’s brother, who actively assisted in the defense of the divorce suit.</p> <p>4.. The evidence amply warranted the jury’s finding, and there was no abuse of discretion in denying a new trial.</p>

<p>Distress warrant. Before Judge Adams. City coijrt of Dublin. January 14, 1903. ■</p>

<p>Petition to establish copy. Before Judge Evans. Putnam superior court. March 19, 1903.</p>

<p>Petition for certiorari. Before Judge Lewis. Laurens superior court. March 2, 1903.</p>

<p>1. - While the practice is deprecated, it is not a ground to dismiss a writ of error that the portions of the record material to a clear understanding of the issues involved are brought to this court in the bill of exceptions under the ' certificate of the trial judge, instead of being specified in the bill of exceptions and sent up as a separate transcript under the certificate of the cleric of the court below. Simmons, C. J., dissenting.</p> <p>2. Under the evidence for the plaintiff, her husband, for whose homicide she sued, could by the exercise of the skill and diligence to protect himself required by law, have avoided the injuries which caused his death. A judgment of nonsuit was therefore proper.</p>

<p>1. There is no provision of law allowing the exemption of cash or the investment of cash for the use of a family under the Civil Code, § 2867, which provides for what is known as “ the short homestead.”</p> <p>2. Nor could there be such an exemption of money in' the hands of an administrator, belonging to a defendant in execution as an heir at law, the judgment under which the execution issued being founded on a note containing a waiver of homestead and exemption, and the administrator having been duly served with a garnishment at the instance of the plaintiff in execution against the defendant in execution.</p>

<p>A county treasurer is not entitled to commissions for receiving and repaying money borrowed by tbe county to meet ordinary current expenses.</p>

<p>Complaint for land. Before Judge Lewis. Baldwin superior court. July 13, 1903.</p>

<p>Ejectment. Before Judge Lewis. Laurens superior court. July 27, 1903.</p>

<p>1. Although a disclosure by a person accused of larceny, as to the place of concealment of articles alleged to have been stolen, may have been obtained through the influence of fear, no unlawful violence having been used to obtain such disclosure, the fact so discovered by reason of such information may be proved. Penal Code, § 1008 ; Junes v. State, 75 Ga. 825 ; Daniels v. State, 78 Ga. 99; Rusher v. State, 94 Ga. 363.</p> <p>2. An indictment charging a person with stealing “one hundred and twenty dollars in paper money, to wit, two twenty-dollar bills, five ten-dollar bills, and six five-dollar bills,” is not subject to demurrer on the ground that it does not disclose what kind of money was stolen, this court having held, in Allen v. State, 86 Ga. 399, that such a description of money means bank bills ; but a motion for a new trial by a defendant convicted under such an indictment without proof that the money stolen was bank-bills should have been granted. Rouse v. State, 4 Ga. 136, 139-140 ; Watson v. State, 64 Ga. 6</p>

<p>Action for damages. Before Judge Irwin. City court of Polk county. January 13, 1903.</p>

<p>Levy and claim. Before Judge Bartlett. Haralson superior court. April 16, 1903.</p>

<p>1. A person upon whom a wrong has been committed is under a duty to use ordinary care and diligence to lighten the consequential damages. Civil Code, §3802; Georgia Railroad Co. v. Eskew, 85 Ga. 641 (5-6); Nicholas v. Tanner, 117 Ga. 223.</p> <p>2. In this State a landlord is bound to keep the rented premises in repair, in the absence of an agreement to the contrary ; but the tenant can not recover for any damage resulting from a failure to repair, which he could by the exercise of ordinary care have avoided.</p> <p>3. In the absence of an agreement so to do, the landlord is not bound to repair patent defects in a building, of the existence of which the tenant knew at the time the rent contract was entered into. Driver v. Maxwell, 56 Ga. 11 (2); White v. Montgomery, 58 Ga. 204 (1).</p> <p>4. In the trial of an action against a landlord for damages alleged to have resulted from his failure to repair, when the landlord admits that he had notice of the defects, it is not prejudicial to the tenant to reject evidence tending to show that the landlord had such notice.</p> <p>5. The law making it the duty of a landlord to keep rented premises in repair, evidence that he did or did not enter into a contract with a third person to make repairs can throw no light on the question of liability.</p> <p>6. In the trial of an action for damages for a failure to repair, against a landlord, by a tenant who had been in possession of the premises under a former landlord, the burden is upon the tenant to show that he sustained damage after the contract with the second landlord was entered into, and the amount of such damage.</p> <p>7. The evidence authorized the verdict, ancl there was no abuse of discretion in refusing a new trial..</p>

<p>1. Where a father in possession of land under á bond for titles, a part of the purchase-money being paid, makes a parol gift of the land to a son, and the latter goes into possession and, on the faith of the gift, makes valuable improvements on the land, and subsequently the father acquires the legal title by a conveyance from the maker of the bond for titles, the title thus acquired by the father passes, by the statute of uses, into the son and inures to his benefit in preference to one to whom the father conveyed after he had acquired the legal title.</p> <p>2. Under such a state of facts, when the sou has been ousted from the possession, he is entitled to maintain an equitable petition for specific performance by the father, and to have the deeds made by the father canceled, after proving that the purchasers bought with notice of the son’s equity as evidenced by his possession.</p>

Action on insurance policy. Before Judge Hodnett. City court of Carrollton. January 10, 1903.

<p>Action on forthcoming bond. Before Judge Reagan. Butts superior court. March 5, 1903.</p>

<p>The'evidence toeing insufficent to support the verdict, the court erred in overruling the motion for a new trial.</p>

Actiou on contract. Before Judge Lewis. Baldwin superior court. January 27, 1903.

<p>1. A partnership is not liable on a note given by one of the partners for the purchase of goods bought and used for his own private benefit, when such note is still in the hands of the vendor and the purchase of such goods was not authorized or ratified by the other partners and was an act neither actually nor apparently within the scope or ordinary course of the partnership business.</p> <p>2. One dealing with a partnership is chargeable with notice of the character of the partnership business as conducted; and if a person take from one of the partners a note signed by him in the firm name as payment for goods supplied such partner, the payee is bound to know whether the transaction is within the apparent scope of such business.</p> <p>3. It follows that where a suit against a partnership on a promissory note signed by one of the partners is defended by the copartners” on the ground ' that the note was given for the purchase of goods for their partner’s own private use and was not the act of the partnership, and on the trial there is evidence that the partner signing the note gave it for the purchase of goods for his own use which were not used for the benefit of the firm, and that the transaction was not within the real or apparent scope of the partnership business and was not authorized or ratified by the other partners, it was error to charge that the payee could recover if he had no notice that the act was beyond the scope of the business, could not have known it by the use of ordinary care, and honestly believed he was dealing with the firm in a partnership transaction.</p>

<p>Levy and claim. Before Judge Lewis. Laurens superior court. April 6, 1903.</p>

<p>Action for damages. Before Judge Adams. City court of Dublin. August 3, 1903.</p>

<p>Application for mandamus.</p>

<p>Accusation of gaming. Before Judge Hollingsworth. City court of Fayetteville. October 21, 1903.</p>

<p>Accusation of gaming. Before Judge Hollingsworth. City court of Fayetteville. October 21, 1903.</p> <p>The affidavit averred that on September 4, 1903, in Fayette county, Murphy did commit the offense of gaming. The accusation charged, upon this affidavit, that Murphy “ did, on the 4th day of Oct., 1903, in county aforesaid, . . play and bet for money and other things of value, at a game of seven-up, skin, and other games with cards.” The accused demurred on the ground that the accusation was insufficient in that the affidavit on which it was founded was insufficient to support it, the accusation being broader and more comprehensive than the affidavit, and covering things different from those set out in the affidavit. The demurrpr was overruled, as was a motion for a new trial after verdict of guilty, the ground of the motion being that the verdict was not supported by the evidence. It appeared that, at the time and place charged, the accused and several others were discovered in a field, playing “ skin.” They had up money; and the accused was playing. When so discovered they all ran off, except the accused.</p> <p>cited Acts 1902, p. 133, sec. 31; 112 Ga. 537; 58 Ga. 397; 117 Ga. 756.</p> <p>cited 107 Ga. 693; 109 Ga. 572; 86 Ga. 271; 85 Ga. 570; 62 Ga. 583; 14 Am. & Eng. Ene. L. 666-7.</p>

Accusation of keeping .and maintaining a lewd house. Before Judge Hodges. City court of Macon. October 31, 1903. The plaintiff in error rented a house from the owner of it for a term of three years, and sublet it at a profit to a lewd woman, knowing that her intention was to maintain it as a lewd house, and that it had been so maintained for years by others.

<p>Conviction of larceny from the house. Before Judge Roberts. Twiggs superior court. November 2, 1903.</p>

<p>Indictment for assault with intent to murder. Before Judge Henry. Walker superior court. November 5, 1903.</p>

<p>Habeas corpus. Before Judge Lumpkin. Fulton superior court. November 6, 1903.</p>

<p>If; so error to charge the jury as to a state of facte not authorized by the evidence.</p>

<p>Indictment for selling liquor to a minor. Before Judge Kimsey. Habersham superior court. November 3, 1903.</p>

<p>Accusation of cheating and swindling. Before Judge Taliaferro. City court of Sandersville. October 29, 1903.</p>

<p>Indictment for affray. Before Judge Proffitt. City court of Elberton. November 18, 1903.</p>

<p>Accusation of wife-beating. Before Judge Hodges. City court of Macon. November 21, 1903.</p>

<p>Certiorari. Before Judge Holden. Wilkes superior court. November 6, 1903.</p>

<p>Action on bond. Before Judge Evans. Bibb superior court. January 9, 1903.</p>

<p>Action for damages. Before Judge Fite. Catoosa superior court. February 4, 1903.</p>

<p>Action for damages. Before Judge Lewis. Taliaferro superior court. June 1, 1903.</p>

<p>As has heretofore been ruled by this court in a number of cases, while the law . raises against a railway company a presumption of negligence whenever the fact is made to appear that live stock was killed by the running of its cars, yet this presumption can not withstand positive and uncontradicted evidence that the company’s employees exercised ordinary diligence, both as regards maintaining a lookout for stock and endeavoring to avoid injury to the same when discovered ; and relevant testimony in behalf of the company on the part of its servants can not, if they be unimpeached, arbitrarily be disregarded by court or jury, upon the assumption that it is not,.in point of fact, in accord with the truth. The facts of the present case bring it within these rulings, and the court below erred in not granting the defendant company a new trial.</p>

<p>Levy and claim. Before Judge Harris. Heard superior court. July 17, 1903.</p>

<p>Motion for new trial. Before Judge Butt. Muscogee superior court. ' February 21, 1903.</p>

<p>Real estate of a lmsband, set apart as a homestead, was levied on and sold. The purchaser at the sheriffs sale conveyed the land to the wife, a beneficiary under the homestead. She borrowed a thousand dollars and secured the same by a deed to the land, which was signed by her husband acting as her agent. The holder of the security deed brought ejectment against the wife, and, having recovered a verdict, obtained a writ of possession. The husband for himself and as the head of a family sought a perpetual injunction against its enforcement. The jury found generally for the plaintiff. Held:</p> <p>1. While the verdict was right in enjoining any interference with the homestead estate, it was too broad in that it restrained the creditor from enforcing the writ after the termination of the homestead.</p> <p>2. Where one as agent for another signs a deed conveying property, he is es-topped from,thereafter asserting against the grantee any adverse right based on a title or interest outstanding in such agent at the time of the execution of the deed.</p> <p>3. What one induces another to regard as true is to be treated as the truth between them, if the party who acts has been misled to his damage by the conduct or statements of the other.</p>

<p>Foreclosure of lien. Before Judge Raines. City court of Dawson. July 21, 1903.</p>

<p>1. What purports to be the evidence introduced in this case before the judge on an application for injunction, consisting of numerous affidavits and other papers, being set forth in full as exhibits to the bill of exceptions, without any attempt to abbreviate or brief the same, this court will not consider any assignment of error which is dependent upon the evidence.</p> <p>2. Joint trespassers residing in different counties may be sued for damages in the county of the residence of either; and joint wrong-doers who reside in different counties, who are insolvent and who threaten to commit trespasses, may in a proper ease be enjoined from the commission of such wrongs, in one petition brought in the county of the residence of any one of them.</p> <p>3. The allegations of the petition were of such a character as to authorize the granting of the injunction which is complained of.</p>

<p>1. Parties can not by consent confer jurisdiction upon this court to hear and determine a case at a term prior to that to which the ease is by law returnable.</p> <p>2. The return term fixed by law for ordinary bills of exceptions is the first term of this court which begins after the expiration of thirty days from the filing of the bill of exceptions in the office, of the clerk of the trial court.</p> <p>3. The bill of exceptions in the present case, having been filed in the office of the clerk of the trial court within less than thirty days before the first day of the October term, 1903, was properly placed on the docket of the March term, 1904, notwithstanding the bill of exceptions and record reached the office of the clerk of the Supreme Court more than twenty days before the first day of the October term, 1903, and therefore before the return day for that term.</p> <p>4. The ruling in Logan v. Western and Atlantic JRailroad Company, 80 Ga. 493, followed.</p>

<p>A legislative act incorporating a town, which provides that named persons shall act as mayor and aldermen until their successors are elected hy the people of the town according to the scheme of the act, is not opposed to that provision of the constitution which declares that “ the x>eople of this State have the inherent, sole, and exclusive right of regulating their internal government, and the police thereof” (Civil Code, §5734); nor to that provision which declares that “ in all elections by the people the electors shall vote by ballot” (Civil Code, §5736). Nor is such act unconstitutional for the reason that the General Assembly “ has no elective or appointive power of officers of towns to which they grant charters.”</p>

<p>1. If one should openly enter aud remain in a car with no intent to pay his fare, he would not be guilty under the provisions of the act of December 21, 1897. (Van Epps Code Supp. §6662.)</p> <p>2. If he should conceal himself in a car for some purpose other than that of avoiding the payment of his fare, he would not be guilty under this act.</p> <p>3. But if he should, conceal himself on a train or in a car for the purpose of avoiding the payment of fare, he would be guilty of attempting to steal a ride, if removed before the journey began; or, of actually stealing a ride, if he remained in the car until after the journey had commenced.</p> <p>4. An accusation charging M. with the offense of a misdemeanor, in that he “fraudulently concealed himself in a car of a railroad company for the purpose of avoiding the payment of fare and stealing a ride,” was sufficient to withstand a general demurrer.</p>

<p>Petition for injunction. Before Judge Kimsey. Lumpkin superior court. November 10, 1903.</p>

<p>1. Under Civil Code, §5269, par. 1, in an action of ejectment the opposite party to the grantee of a deed from a deceased person is not competent to testify in his own behalf to conversations and transactions with such deceased person, affecting adversely the title conveyed by the deed; and under par. 5 the agent of such a party is likewise incompetent.</p> <p>2. It is not error to exclude evidence as to matters about which there is no dispute.</p> <p>3. This court will not consider a ground of a motion for a new trial, complaining of the refusal of the court to allow counsel to ask a witness a stated question, where it does not appear what answer to the question was expected.</p> <p>4. The evidence amply sustained the verdict.</p>

<p>Action for damages. Before Judge Willis. City court of Columbus. January 5, 1903.</p> <p>cited Hector v. Elec. Lt. Co., 25 L. R. A. 554, 5 Am. El. Cas. 300; Aug. Ii. Co. v. Andrews, 89 Ga. 653; Ga. Pac. R. Go. v. Richardson, 80 Ga. 727; Andrews v. Gen. R. Go., 86 Ga. 192; Atla. R. Go. v. Loftin, Id. 43 ; Sheats v. Rome, 92 Ga. 535 ; Goolc v. Atlanta, 94 Ga. 614; Gain v. Macon R. Go. 97 Ga. 298; Ga. So. R. Go. v. Cartledge, 116 Ga. 164; Huber v. LaCrosse R. Co., 31 L. R A. 588, 6 Ain. El. Cas. 285.</p> <p>cited Atla. R. Go. v. Owings, 97 Ga. 663; City Council v. Hudson, 88 Ga. 600; Joyce’s El. L. §§ 1048-50; I. & St. L. R Co.' v. Horst, 93 U. S. 291; Ahern v. Oregon T. Co., 2'2 L. R. A. 635; Denver El. Co. v. Simpson, 31 L. R. A. 566; McLaughlin v. L. El. Co., 34 L. R. A. 812, 6 Am. El. Cas. 265; Macon v. Paducah R. Co. (Ky.), 62 S. W. 496, 7 Am. El. Cas. 630 ; Lexington R. Co. v. Fain, 71 S. W. 628; Perham v. Portland El. Co., 33 Ore. 451, 40 L. R. A. 799, 7 Am. El. Cas. 487; Thomas v. Ry. Co., 7 Am. El. Cas. 589; Newark El. Co. v. McGilvey, Id. 529 ; Anderson v. El. Lt. Co., Id. 557; Schweitzer v. El. Co., Id. 571; Brown v. El. Co., Id. 576; O’Donnell v. El. Co., Id. ’587; Caglione v. El. Co., Id. 622; Will v. Edison II. Co., Id. 642; Griffin v. El. Co., 6 Am. El. Cas. 252; Newark v. Garden, Id. 275, 37 L. R. A. 725.</p>

<p>The general rule that the plaintiff may voluntarily dismiss his case is applicable in a case which has been referred to an auditor, exceptions to the auditor’s report filed and sustained, and a judgment rendered by the Supreme Court reversing the judgment sustaining the exceptions and in effect declaring that judgment should be entered in conformity to the auditor’s report. The right of the plaintiff to voluntarily dismiss exists until the trial judge announces a decision striking or overruling the exceptions and ordering a decree entered in conformity to the report. It is not knowledge of the possible result of a case, but of the actual result, which takes away the right to dismiss.</p>

<p>The uncontradicted evidence showed that petitioner was a disabled Confederate soldier, and entitled to an exemption as such ; and it was not error to grant an injunction restraining a sale of bis personal property levied on under a fl. fa. issued by a municipality for a business tax.</p>

<p>Action for damages. Before Judge Butt. Muscogee superior court. April 24, 1903.</p>

<p>Year’s support. Before Judge Butt. Talbpt superior court. June 6, 1903.</p>

<p>Complaint. Before Judge Sheffield. Early superior court. February 9, 1903.</p>

<p>Application for mandamus.</p>

<p>Indictment for false swearing. . Before Judge Roan. Fulton superior court. October 23, 1903.</p>

<p>1. A petition brought by one man against another who had formerly been his partner in business, which proceeds upon the idea that the partnership has been dissolved, its affairs wound up, and an accounting had between its members, and which seeks to recover a sum of money made up partly of an alleged individual indebtedness independent of the partnership relation,' and partly of a sum alleged to be due by reason of the existence of the partnership and growing out of its dissolution, the latter sum being in no way affected by any debts due by or to the firm, is not subject to demurrer on the ground that it is a suit at law by one partner against his copartner to recover money due by reason of partnership transactions.</p> <p>2. Where such a petition sets oufthe items of the alleged indebtedness sued on, but alleges that on account of the wrongful failure of the defendant to furnish the plaintiff with the partnership books, a more complete bill of particulars can not be set forth, there is no merit in a special demurrer based on the failure to set out the details of the items of indebtedness making up the sum for which suit was brought.</p> <p>3. The jury, after retiring to their room, returned and requested information as to whether, in the event they should find for the defendant, the plaintiff would be barred from suing in equity. Counsel for the plaintiff, in the presence of the jury, requested the court to charge that such' q verdict would be a bar to an equitable proceeding. No motion for a mistrial was made by counsel for the defendant, nor does it appear that he requested of the court any specific instructions. Held, that it was not, under such circumstances, error for the .court to fail to instruct the jury to disregard the remark made by counsel for the plaintiff, or to fail to instruct them “that it was their ’duty to endeavor to find a verdict regardless of whether their' verdict would prejudice the case of either party and regardless of whether either party would or not be barred from suing in a court of equity.”</p> <p>4. The evidence warranted the verdict, and there was no error in overruling the motion for a new trial.</p>

<p>Ejectment. Before Judge Butt. Muscogee superior court. July 21, 1903.</p>

<p>1. A petition for damages, which charges negligence on the part of the “defendant, its servants or agents,” is not subject to demurrer on the ground that this allegation is equivocal and ambiguous in that it charges negligence against either the defendant or its servants or its agents, the evident and unmistakable intention of the language and of the whole petition being to charge negligence against the defendant acting through the medium of its servants or agents.</p> <p>2. It is not error for the trial judge, in charging the jury, to summarize the pleadings and instruct them that “ that makes the issue that you are sworn and empanelled to pass upon,” without further charging them upon a theory of defense not set up in the defendant’s plea, and upon which a charge is not requested by counsel and is not demanded by the evidence.</p> <p>3. It was not cause for a new trial that the judge read in charge to the jury a code section part of which was applicable to the case under consideration and part not, it not appearing that the reading of the inapplicable part was calculated to mislead the jury, erroneously affected their verdict, or was prejudicial to the rights of the complaining party.</p> <p>I. Where the defendant (a cotton-mill company) in an action for damages on account of injuries alleged to have been sustained by reason of the operation of a defective pulley on one of its machines admitted “that there was a small piece of the rim broken off on the side [of the pulley] next the machine,” but denied “ that the pulley was thereby made defective,” it was not error for the court, in charging the jury, to refer to the break as a defect, they being expressly instructed that the plaintiff could not recover unless this break, or defect, caused the injuries sued for.</p> <p>5. It was not error, after charging that regardless of whether the defendant was negligent or not, if the plaintiff, a child, could have avoided his injuries by the use such care as his mental and physical capacity fitted him for exercising, he could not recover, for the court to add : “ If you believe that the child, . . in the exercise of all his mental capacity, such as he was possessed of at the time, did not know that the same was dangerous, and the accident happened by reason of this defect in the pulley, then he would be entitled to recover.”</p> <p>6. There was no error in any charge complained of in the motion, which is not herein specifically considered; the requests to charge, so far as legal and pertinent, were fully covered by the charge as given ; and the evidence warranted the verdict, which was not excessive.</p>

<p>Indictment for murder. Before Judge Roberts. Dodge superior court. August 4, 1903.</p> <p>■ The indictment charged Robert D. Cawthon with the murder of R. J. Tucker, in one count, by administering a quantity ■ of strychnine; in another, by causing to be administered a quantity of strychnine to Tucker. There was a verdict of guilty, and exceptions w-ere taken directly to rulings at the trial. The bill of exceptions states, that Tucker died on July 21, 1903, under circumstances indicating that he was the victim of strychnine poisoning, and on the next day his widow and Cawthon were arrested and committed to jail upon the charge of-having caused his death by poison, and both of them remained in jail until after the trial and conviction of Cawthon. A special term of the superior court was called, and met on August 3. The indictment was returned and Cawthon was arraigned and put on trial on the same day, not being represented by counsel, except Messrs. C. W. Griffin and D. R. Pearce, appointed for this purpose by the presiding judge; the sheriff having previously notified the court that Cawthon’s relatives refused to employ counsel for him. Mr. Griffin had been notified by the judge, on Thursday before the court met on Monday, that he might be appointed to represent the defendant, and he then agreed to defend Cawthon, provided associate counsel was furnished; and at Mr. Griffin’s request Mr. Pearce was asked, and consented, to assist in the defense. As Mr. Griffin lived in Eastman, where the trial occurred, he had interviewed the defendant so far as he had opportunity. Mr. Pearce lived in another county, had no opportunity of conferring with the prisoner, and did not do so until the day on which he was arraigned and put on trial. The jury was selected on Monday, and at half past three o’clock the court adjourned at the request of the defendant’s counsel, in order to give them time for consultation and preparation. . Ten days before the death of Tucker, Joel Horne had died under circumstances indicating that he had been poisoned with .strychnine taken at Tucker’s house; and these two deaths were attributed by popular suspicion to Cawthon and Mrs. Tucker. There was no request for postponement or change of .venue. “ Cawthon was a poor'man, and far away from his'relations.”</p> <p>The State was allowed to prove the fact of the death of Joel Horne, and the circumstances under which he came to his death, over objection that this evidence was irrelevant, and that the defendant had not been put on notice to meet any charges in regard to the death of Horne. To this objection the judge replied : “ I understand the rule to be this, that you may show that other offenses of like character were committed; for instance, that another strychnine poison was committed. Of course the court does not mean to indicate what the State may do in the matter. For instance, in the prosecution of a party for burglary, you may show that other burglaries have been committed. I can not understand what the solicitor-general intends to do, but perhaps it is to show that Mr. Horne about that time died under similar chain of circumstances-; and I think it would be competent evidence for the consideration of the jury.” The solicitor-general said, “ You have correctly stated, the rule of law.” The judge then said, “ Of course the defendant would have to be connected with the matter.” Under this ruling the State proved that Joel Horne died in said county, on the way home from the house of Tucker, within an hour or less after taking a drink of peach brandy given to him by Tucker, and that his symptoms while dying, and the condition of his body after death, indicated strychnine poison; and was also allowed to prove that the State chemist found strychnine in a few drops of brandy contained in the bottle alleged to be the one from which Horne drank, without any evidence being introduced to show that Cawthon ever handled or saw said brandy at any time before the death of Home. There was testimony by one witness, Eudelle Tucker, that after the death of Horne she saw Cawthon pour the remaining brandy out of the bottle from which Horne drank. The accused excepted to the admission of the evidence so objected to.</p> <p>Dr. J. D. Herrman as a witness was examined as to his having tasted the contents of the bottle from which the State contended and had shown by other witnesses that Horne had drunk poisoned brandy, and that no change had been'made in the bottle. Counsel moved to rule out the testimony of Dr. Herrman about strychnine being in the whisky, because there was no allegation in the indictment that the defendant gave the deceased any of the whisky. By the court: “ Yes, unless he shows that he gave it to somebody else. I will not rule the question now, but will let it go in for the present.” And this testimony thus admitted was never afterwards excluded by the court. It was, in substance, that the contents of the bottle tasted like strychnine and peach brandy ; and that the witness noticed, on the lower portion of the flatness of the bottle and on the stopper of the bottle, crystals of strychnine. Exception was taken to the admission of the testimony over the objection, and to the failure of the court afterwards to rule it out. Similar exception was taken to the admission, over objection, of testimony of J. M. McCandless, giving the result of his analysis of a few drops of liquid sticking about on the sides of the bottle from which it was contended by the State that Joel Horne drank poisoned brandy; this testimony being to the effect that there was strychnine in the contents of said bottle.</p> <p>The court charged the jury as follows: “The contention of the State in this case is that this poison was given by the defendant at the bar, and that fact is denied by the defendant in his plea of not guilty. It is conceded by both sides that if the poison was given by the defendant, that would amount to a case of murder; so that the only question for your determination is, did the party, either by procuring somebody else, or by putting it where Mr. Tucker would get it with the intention that he should get it, or did he administer the poison, and are you satisfied of that from the evidence; and if you are, are you satisfied of it to the exclusion of the reasonable doubt I have described to you; and if you are, of course you will find in accordance with that conviction upon your mind. Upon the other hand, if you are not satisfied to the exclusion of that reasonable doubt which the'law gives the defendant the benefit of, then it would be your duty to find him not guilty.” Error was assigned, (1) because the judge had no authority in law to state to the jury that the prisoner had made the concession stated, one of his counsel having stated in argument that if the strychnine was given and death resulted therefrom, it was murder, and the only question for the jury’s determination was, did Cawthon administer it, counsel arguing at the time that Cawthon did not give the strychnine; the law placing upon the jury the duty to determine not only whether the prisoner administered the poison as charged, but the grade of the offense in case it was so administered. (2) The evidence having shown that there was strychnine in the house of the deceased (a package of strychnine having been found by the sheriff over the mantel-piece in the kitchen), which was not shown to have been bought by, or to belong to, or ever to have been in the possession of the defendant, it was error to leave the jury to understand that he would be equally guilty if he administered the poison, or if he procured some one else to administer it, or if he put it where Tucker would get it with the intention that he should get it. It is submitted that he might have put the poison where Tucker would get it, with the intention that he should get it, and without any thought that he would take it to his injury.</p> <p>The court charged: “Now, I have permitted the State to prove in this case that sometime, a short while before Mr. Tucker’s death, that Mr. Horne, Joel Horne, also died under circumstances where the State insists that he was also poisoned. You are not trying the party, you must bear that in mind, for the killing of Mr. Horne. I have only permitted it to go before you to be considered in reference to the theory of the State in the matter, — and if I misstate your contention, call my attention to it, gentlemen. Their contention is this: that the party who is on trial, charged with the offense of murder, had prepared whisky impregnated with strychnine, and that that whisky was intended to be taken by Mr. Tucker, the deceased; but that, contrary to the expectations of the defendant (I am simply stating the contention of the State; it is not the purpose, nor the intention, nor the province of the court to state what the facts are), that this same whisky was intended for Mr. Tucker, but that it was given to Mr. Horne; 'in other words, the State insists that there was a provision made in that way to take away the life of Mr. Tucker by the use of strychnine poison; and I have allowed that to go before you for your consideration, and to receive just such weight as you think it is entitled to in passing upon the issue involved in this case. As to the amount of weight it is entitled to is purely for you to determine, and it is not the purpose of the court to express to you an opinion as to its probative force and power. You are the exclusive judges of the evidence, and the court has no power nor inclination to intimate to you what has or has not been proved; you are the exclusive judges of the evidence, and the law you take from the court and apply it to the evidence. And you will only consider the evidence in reference to the killing of Mr. Horne so far as it may illustrate any issue upon the trial of this case. See whether or not it illustrates any issue in this case; and if it does, you can give it just such force as you may think it is entitled to.” Error was assigned, because (1) there was no legal evidence justifying the jury to consider the death of Joel Horne and its circumstances or causes. (2) The court did not tell the jury clearly and distinctly that they could not consider the death of Horne and its circumstances and causes, unless it was proved to their satisfaction, to the exclusion of a reasonable doubt, that the defendant caused Horne’s death. It is admitted that the court charged the jury on the general law of doubt.</p> <p>The last exception and the facts pertinent to it are fully set forth in divisions 8, 9 of the opinion. The bill of exceptions recites that the defendant files therewith a brief of the evidence introduced on the trial, “and prays that the same may be approved and transmitted as a part of the record in the case.” It then specifies, as parts of the record material to a clear understanding of the errors complained of, the indictment, plea, “the brief of the evidence,” etc.</p>

<p>Indictment for rape. Before Judge Henry. Floyd superior ■court. November 16, 1903.</p>

<p>Indictment for vagrancy. Before Judge Crisp. City court of Americus. November 12, 1903.</p>

<p>Certiorari. Before Judge Spenee. Worth superior court. October 29, 1903.</p>

<p>Accusation, of larceny. Before Judgé Longley. City court of LaGrange. November 30, 1903.</p>

<p>Indictment for murder. Before Judge Littlejohn. Doolysuperior court. November 14, 1903.</p>

<p>Indictment for pointing pistol at another. Before Judge Holden. Madison superior court. November 10, 1903.</p>

<p>Indictment for assault with intent to murder. Before Judge Roan. Fulton superior court. November 14, 1903.</p>

<p>The evidence for the State was consistent with that for the accused, which made out a good defense ; and the verdict finding her guilty should have heeri set aside on motion for a new trial.</p>

<p>1. The act of August 7, 1903, in relation to vagrancy, amends but does not repeal Penal Code, § 453.</p> <p>2. Under one count of the accusation a conviction was warranted, whether the evidence be referred to a date before or after the approval of that act.</p> <p>3. There was positive testimony that the defendant, a grown woman able to work, with no visible or known means of a fair, honorable, and reputable livelihood, was a street-walker, who loitered around saloons and did no . work. The fact that on two occasions she had earned small sums, wholly insufficient to support her, was no answer to the general state of idleness in which she was shown to live.</p>

<p>Accusation of illegal transportation of seed-cotton. Before Judge Burnside. City court of Hamilton. December 9, 1903.</p>

<p>1. Where in the trial of a criminal case a witness testifies that a confession was freely and voluntarily made to him by the accused, who was at the time under arrest, the evidence of the confession is admissible, and it is not incumbent on the State to show, as a condition precedent to the admission of the evidence, that such confession was not the result either, of inducements or threats made by the officer having the accused in custody, Price v. State, 114 Ga. 855.</p> <p>2. The verdict was warranted by the evidence.</p>

<p>Indictment for murder. Before Judge Lewis. Jasper superior court. December 14, 1903.</p>

<p>Conviction of manslaughter. Before Judge Littlejohn. Doolysuperior court. December 10, 1903.</p>

<p>Indictment for murder. Before Judge Parker. Tattnall superior court. December 5, 1903.</p>

<p>Indictment for murder. Before Judge Butt. Chattahoochee superior court. December 21, 1903.</p>

<p>Indictment for murder. Before Judge Butt. Harris superior court. ' December 21, 1903.</p>

<p>Where an accused person is indicted, with an alias, under more than one name, a special plea of misnomer, to be good, must aver unequivocally that the accused has never been known by either of the names set out in the indictment, and that neither is his true name.</p>

<p>Indictment for burglary. Before Judge Eelton. Bibb superior court. January 5, 1904.</p>

<p>Accusation of adultery and fornication. Before Judge Covington. City court of Moultrie. December 15, 1904.</p>

<p>Conviction of manslaughter. Before Judge Butt. Harris superior court. December 12, 1903.</p>

<p>Action for damages. Before Judge Irwin. City court of Polk county. January 14, 1903.</p> <p>The petition alleged that the plaintiff was between eleven and twelve years of age, and ignorant of the danger of exposed machinery in defendant’s mill; and that defendant negligently left the same uncovered and failed to warn plaintiff of the danger, and was negligent in permitting and not restraining the plaintiff from going about the dangerous machinery, who was injured by placing her hand between the pressers. By amendment it was alleged that if she was out of the line of her work the defendant was guilty of negligence in not restraining her from going to and remaining about the dangerous machinery; that defendant did not warn plaintiff that she was out of the line of her work, or request or command her to keep away from the same; that the machinery was not in motion when she put her hand therein, but it was set in motion by another youthful, ■incompetent, and inexperienced employee, though there was no proof of her incompetency and inexperience further than appeared from the testimony that she was a “ little girl.” The plaintiff had worked two months at the Wahneta Mill, and in the Josephine Mill about three weeks. She testified that she was eleven years and two months old, had no regular work in the mill, but was employed “ to do first one thing and then another.” Sometimes she would take shirts to the folding table of the presser, which is attached to a mangle having rollers heated by steam, and through which the shirts were run and pressed. On the morning of the accident the machine had not been started, and when she carried the shirts and placed them on the folding table she put her finger on the presser to see if the machine was in working order so that she could tell the operator and let her keep up with the “ overseamer.” When she put her finger on the presser, a “ little girl,” Minnie Sanders, another employee, started the machine. It caught plaintiff’s arm, seriously mashing it and necessitating its amputation. Plaintiff’s evidence tended to show that she had never been warned as to the danger of the machine, and she claimed that she did not know that it was dangerous, or that it was dangerous to touch her finger to the presser. She had frequently carried clothes to the presser previously to this occurrence. One witness testified that the mangle was very dangerous and not at all safe for children of tender years to be around. The mangle is provided with a cover, and with the cover on it is not dangerous, but with it off it is very dangerous. At the time the plaintiff was injured the cover was off. The testimony of a number of employees who were in the room at the time of the accident was introduced with a view of establishing the dangerous character of the machinery, and proving that no warning had been given to plaintiff in reference thereto. Several witnesses testified that plaintiff was a “ smart,” “ bright,” and intelligent child. At the conclusion of the evidence the court directed a nonsuit.</p>

<p>Action on accident-insurance policy. Before Judge Crisp,. City court of Americus. December 27, 1902.</p>

<p>The payee of a note, a short time before his death, sent for the maker and directed him to look in a certain box in the lionse for the note and to take it and keep it. Upon being informed that the note could not be found in the box, he told the maker to look in his private file at the bank, where he would find the note, and to keep it when he found it. The maker was unable to find the note at the bank or elsewhere. After the payee’s death a third person found the note in the house and turned it over to the administrator. Held, that the transaction did not constitute a gift, there being no actual delivery of the note to the maker, and nothing which the law would accept in lieu thereof.</p>

<p>Complaint for land. Before Judge Littlejohn. Lee superior court. May 5, 1903.</p>

<p>Eule. Before Judge Littlejohn. Macon superior court. May 12, 1903.</p> <p>Haden brought a petition iu Macon county, alleging that on the 26th of July, 1900, he delivered to Haygood a number of papers and documents in the matter of a claim of Wilson, involving certain real estate in Irwin County; that these papers were receipted for by Haygood as attorney at law, and received under an agreement between himself and Haygood that the fees in the case should be divided equally; that the suit was brought in Irwin county, and the plaintiff recovered; that Haygood collected the fees, and now has in his hands $300, being the portion belonging to plaintiff; and that demand has been made on Haygood and payment thereof refused. Haden thereupon asked for a rule nisi, calling upon Haygood to show cause why he should not pay over the money aforesaid, or, in default, be attached for contempt. Haygood demurred on the grounds, that the petition set out no cause of action; that the plaintiff’s remedy was by action at law, and that the relation of attorney and client did not exist between plaintiff and defendant, and therefore defendant is not subject to a rule, there being no law authorizing one attorney to rule another attorney to determine a divison of the fees. The judge overruled the demurrer, and Haygood excepted,</p>

<p>Complaint. Before Judge Henderson. City court of Yienna. April 22, 1903.</p>

<p>Rule. Before Judge Littlejohn. Macon superior court. May 12, 1904.</p>

<p>Action for damages. Before Judge Henderson. City' court of Yienna. September 2, 1903.</p> <p>Mrs. McKinney sued Carmack for damages resulting to her from the homicide of her husband; contending that on September 3, 1902, Carmack went to McKinney’s home where he was quietly resting, lured him therefrom, and with malice aforethought shot him to death. There was some conflict of evidence; but that for the defendant tended to prove the following: McKinney had been Carmack’s cropper, working on halves, and, recently before the day of the homicide, had sold a bale of cotton. On that day Carmack went to see McKinney about a settlement for the bale so sold; and upon his stating this object, McKinney paid him half of what the bale was sold for, less a few cents. Car-mack called attention to this difference, said it would come all right on the next sale of cotton, and started to leave. McKinney (who had drunk some intoxicating liquor) then manifested a disposition to quarrel, and followed Carmack into the road, where he shook his finger at Carmack and said, “You and your brother and your mammy and your sisters have all told g — d — lies.” Thereupon Carmack struck McKinney with his fist, and McKinney drew a pistol, which Carmack -caught hold of as it was discharged, receiving a slight wound in the hand. This caused him to loose his hold on the weapon, and McKinney again fired at him without effect. Carmack pulled out his own pistol, and as he did so McKinney shot him in the body, inflicting a serious wound. Then Carmack shot McKinney five times, as quickly as he could, and ran off, McKinney firing another shot at him as he ran. Within about an hour McKinney died- of the wounds he had received. The verdict was for the defendant, and the plaintiff excepted to the denial of her motion for a new trial. This motion sets forth, besides the general grounds, that the court erred as follows :</p> <p>1. In allowing two witnesses to testify to statements made by Mrs. McKinney in her testimony at the coroner’s inquest (setting forth their testimony), contradictory of some of her testimony on the trial of the present case, over objection that, it appearing that the testimony at the inquest was taken down, the writing was better evidence of what any'witness testified on that occasion, and that parol evidence was inadmissible unless the loss or destruction of the written evidence was shown according to law. There was testimony by the clerk of the superior court, and by another witness, to the effect that some papers relating to the inquest had once been placed in the clerk’s office and were afterward turned over to the grand jury, and had been lost, and, after search for them, could not be found.</p> <p>2. In allowing a witness to testify, over objection, that, three or four days before the homicide, he asked McKinney what sort of a man Carmack was to work with, and said he had a notion to go and trade with Carmack; and that McKinney answered that the witness might trade with Carmack’s wife, but not with Car-mack, because he was going to kill Carmack. The objection was, that this was inadmissible unless the threat was communicated to Carmack, and that the words were not of such recent nature as to be admitted to show the state of mind of the deceased.</p> <p>3. In charging the jury: “ If you believe that Mr. McKinney invited Carmack, or caught him by the coat and carried him down there, and if you believe that the deceased, Mr. McKinney, used opprobrious words to Carmack, then McKinney would be bound to anticipate that Carmack would resent such, but in a manner commensurate with the words used; and if Carmack assaulted McKinney, then McKinney would not have been authorized to take the life of Carmack,” — without instructing the jury anywhere in the charge as to what character of assault opprobrious words would justify, or without telling them that if the assault was of such a character as to excite the fears of a reasonable man, then McKinney would have been justified in taking the life of Carmack. And in failing to limit the extent of the assault in response to opprobrious words, inasmuch as an assault can be made with a deadly weapon, which would excite the fears of a reasonable man and justify the killing of the person making the assault. (In this connection the court also charged, “that, on the other hand, . . if the conduct of Carmack provoked an assault from the deceased McKinney; which the defendant might have been justified in resenting, or the result of which provoked the deceased to an act which made it necessary for the defendant to take the life of the deceased in order to save that of himself, the defendant would not be justifiable, and you would have to find for the plaintiff.”)</p> <p>Also, in charging: “ It is for you, gentlemen of the jury, to say what these words were, and whether or not they would jus-</p> <p>tify a battery.” This was prejudicial to the plaintiff, for the reason that in the former part of the same paragraph, while charging as to opprobrious words, the court used the word. “ assault,” and in this connection used the word “battery,” which was confusing to the jury in the consideration of what either Carmack or McKinney could do in response to opprobrious words, — whether they could respond with an assault or a battery; especially as the court nowhere in its charge defined an assault or a battery. And the charge was error for the further reason that the court failed in the same connection to instruct the jury that the use of opprobrious words, in a civil case like this, is not a justification for either an assault or a battery responsive thereto, but can only go in mitigation of damages.</p> <p>Also, in charging: “ If you believe, from a preponderance of the evidence, that the defendant was guilty, under the law, of either murder or manslaughter, then you will have to find for the plaintiff, and not believe him guilty beyond a reasonable doubt. . . If you believe, from the rules of law that I have given you in charge, that the defendant in this case, under the law, would have been guilty either of the. charge of murder or of manslaughter, you would be obliged to find for the plaintiff.” This was prejudicial to the plaintiff, for the reason that it limited her recovery to affirmative proof by her that the defendant was guilty of murder or of voluntary manslaughter. The court nowhere instructed the jury as to the law of involuntary manslaughter, although it was involved in the case under the facts.</p> <p>Also, in refusing a request to charge thus: “ If upon a. sudden heat of passion two fall out and fight with deadly weapons upon equal terms, and one is slain, it is manslaughter.”</p> <p>cited Ga. JR. 92/605; 89/140; 30/72; 95/343; 116/954; 118/885.</p> <p>cited, on admission of evidence; Ga. JR. 65/139; 76/623; 109/526; 18/194; 88/739; 90/793. On charge to jury: Penal Code, §§70, 73, 103; Ga. R. 92/16; 96/436; 25/527; 70/736; 30/67.</p>

<p>Application for mandamus. Before Judge Littlejohn. Dooly superior court. December 15,1903.</p>

<p>• Certiorari. Before Judge Mitchell. ■ Berrién superior court. March 27, 1903.</p>

<p>Certiorari. Before Judge Mitchell. Echols superior court. January 13, 1903.</p>

Injunction. Before Judge Kimsey. Rabun superior court. November 17, 1903. Cannon, in consideration of $1, and the benefits to accrue to him from .the construction of the road, granted to the Tallulah Falls Railway, not an easement, but a defeasible fee, to a strip 100 feet wide.

<p>Action of trespass. Before Judge Littlejohn. Dooly superior court. January 28,1903.</p>

<p>Appeal from condemnation proceedings. Before Judge Little-john. Dooly superior court. April 18, 1903.</p>

<p>Action on bond. Before E. A. Hawkins, judge pro hac vice. Dooly superior court. February 24, 1903.</p>

<p>Motion to set aside judgment. Before Judge Littlejohn. Sumter superior court. July 16, 1903.</p>

<p>Complaint. Before Judge Crisp. City court of Amerieus. August 7, 1903.</p> <p>The plaintiff ordered from the defendants 10,000 bushels of “ Texas red rust-proof seed oats. ” It alleges that the defendants delivered Indian Territory and Oklahoma raised oats; that the plaintiff did not know and by the exercise of ordinary care could not have discovered the difference, when it received and paid for the same; that those delivered were worth from ten to fifteen cents a bushel less than those ordered, at the time and place of delivery; and that it was entitled to recover $1,200 overpaid. One witness for the plaintiff testified that the oats, though raised in Indian Territory and Oklahoma, answered to the trade meaning of “ Texas red rust-proof seed oats.” Other witnesses testified that the term included only those raised in Texas; that Texas grown oats had a special value for seed, derived from the peculiar climate and soil of that State; that Oklahoma and Indian Territory oats were used only as feed oats, and sold at a lower price. The market price of all oats advanced after the sale, and the plaintiff sub-' sequently sold the oats bought at a price above that paid.</p> <p>At the conclusion of the evidence the defendants moved to dismiss the case, on the grounds stated in the special demurrer, and because the plaintiff was not entitled to recover under the evidence. The case was dismissed, and the plaintiff excepted.</p>

<p>1. In this State a mechanic is not entitled to a lien for work done on property belonging to a municipal corporation and used for public purposes.</p> <p>2. In the absence of such a lien the mechanic can not recover a general judgment against the city for money due him by the contractor, there being no privity of contract between him and the city.</p>

<p>Ejectment. Before Judge Spence. Decatur superior court. May 13,1903.</p>

<p>Affidavit of illegality. Before Judge Spence. Decatur superior court. August Í0, 1903.</p>

Possessory warrant. Before Judge Spence. Worth superior court. July 22,1903. The evidence is conflicting, but, taking that excluded and admitted most favorably for the prevailing party, it appears that.

Certiorari. Before Judge Mitchell. . Berrien superior court. March 26, 1904.

<p>Complaint on note. Before Judge Mitchell. Colquitt superior court. April 7, 1903.</p>

<p>. Warrant to evict tenant holding over. , Before Judge Covington, City court of Moultrie. June 11, 1903. ..</p>

<p>Í. If the defendant calls in question by demurrer the sufficiency of the petition, and the court renders a decision holding that the petition sets forth a cause of action, so long as this decision stands unreversed the defendant is precluded from calling in question the sufficiency of the petition by oral motion to dismiss.</p> <p>2. A judgment on demurrer, until reversed, concludes the parties upon all questions necessarily involved in the decision of the points raised in the demurrer.</p> <p>3. A bill of exceptions specified as a part of the record to be transmitted “ the motion for new trial.” Held, that it was the duty of the clerk to transmit tlie/original.motion for a new trial and all amendments thereto.</p> <p>4. The charges complained of were not erroneous for any of the reasons assigned, and especially is this true as to those which related to the cause of action and the measure of damages, when they are construed in the light of the fact that .the defendant was concluded; by the judgment on the demurrer, as to the right of the plaintiff to recover and the character of the damages which should be recovered.</p> <p>5. Neither a ground of a motion for a new trial assigning error upon the admission of evidence nor a similar assignment of error in a hill of exceptions will he considered, unless the evidence is set forth in such a manner that the question of its admissibility can be decided without reference to other parts of the record.</p> <p>6. The evidence authorized the verdict. No material error has been made to appear by any sufficient assignment of error, and the discretion of the trial judge in refusing to grant a new trial will not be controlled.</p>

<p>Certiorari. Before Judge Mitchell. Lowndes superior court. June 23, 1903.</p>

<p>1. The motion, to dismiss must be sustained, there being no entry of service and no acknowledgment of service entered upon or attached to the bill of exceptions.</p> <p>2. An affidavit of the clerk of the superior court, attached to the brief of counsel for plaintiff in error, setting forth reasons why there had been no service of the bill of exceptions, can. not be considered in answer to a motion to dismiss.</p>

<p>Complaint. Before Judge Covington. City court of Moultrie. September 2,1903.</p>

<p>Complaint. Before Judge Lewis. City court of Mount Vernon. February 26, 1903.</p>

<p>A petition for certiorari which does not “plainly and distinctly set forth ” an assignment of error on any ruling, decision, or judgment of the inferior judicatory is void; and being void, no renewal thereof can he had within six months.</p>

<p>1. Under the act approved February 28, 1874 (Acts 1874, p. 105), the comptroller-general was authorized only to issue a tax fi. fa. against unimproved or wild land. A sale of improved land as wild land under such execution would convey no title.</p> <p>2. Whether the land was to be taxed as wild or improved depended altogether on the appearance it presented to the eye, it being immaterial by whom the improvement had been made.</p> <p>8. Wherever there appeared to be such improvements as indicated that there was some one personally responsible for taxes, it was necessary to return and tax the same as improved property, and the comptroller was not bound to inquire how the improver held the property' — whether by title perfect or imperfect, or by no title at all.</p>

<p>Certiorari. Before Judge Roberts. Dodge superior court. May 22, 1903.</p>

<p>1. Where certain allegations in a plaintiff’s petition were admitted in the original answer of the defendant, but subsequently the answer was amended by striking therefrom these admissions and denying the truth of the allegations, and on the trial the plaintiff tendered in evidence the admissions contained in the original answer, and the defendant introduced no evidence to explain or controvert them, a motion for a nonsuit on the ground that these allegations were not supported by the evidence was properly overruled.</p> <p>2. In a common-law suit for damages against a railroad company, brought in this State, on account of injuries received in Alabama, the rules of the common law applicable to the case as interpreted by the courts of this State should be given in charge to the jury. It was error, in such a case, to charge that the degree of diligence required of a railroad company as a carrier of passengers is “the highest degree of care and diligence known to skilled persons engaged in that business.”</p> <p>S. It is the duty of a railroad company, in equipping its trains, to use such appliances as are up to the standard of those in general use and reasonably adapted to the purposes for which they were intended; but the law does not require that such appliances shall be of “the most approved pattern in</p> <p>4. It is error requiring the grant of a new trial for the court, in a suit for damages growing out of the alleged negligence of the defendant, to charge the jury that certain acts or omissions of the defendant would be negligent, such acts or omissions not being negligence per se.</p>

<p>Trover. Before Judge Roberts. Irwin superior court. March 21, 1903. '</p>

<p>Possessory warrant. Before Judge Roberts. Wilcox superior court. March 23, 1903.</p> <p>. The defendants bad certain standing timber which they contracted with Handley to cut and drift to their mill, at $5 per thousand feet. Handley cut some of this timber and sold it to Broadhurst, the plaintiff, who took possession of it, and put the raft on which it was loaded in charge of Hamilton, with direction to carry it to Darien and turn it over to a lumber company for which the plaintiff was agent. On the next day Hamilton started to Darien with the timber, and, while on the river, was hailed by one of the defendants, who told him to pull that raft to the bank, as he wanted to tie it up. ' He made no threat. Hamilton obeyed this direction; and in his testimony he stated that he had formerly been shot for fooling with timber, and was not taking any chances. On the trial of a possessory warrant the justice of the peace awarded possession of the timber to the plaintiff. On certiorari the possession was awarded to the defendants, and the plaintiff excepted. The petition for certiorari assigned the judgment of the justice as error, because (1) the timber was last in the peaceable and legal possession of the defendants, by their agent Handley, and such possession as was afterwards acquired by plaintiff was a tortious possession of stolen property; (2) the timber having been stolen, the defendants had the right to take possession of 'it without legal process; (3) the evidence disclosed no force or show of force by either of defendants; and (4) it appeared that there they were entitled to the possession.</p> <p>cited 36 Ga. 446; 84 Ga. 478.</p> <p>cited Civil Code, §§4799,4807;. 80 Ga. 583; 31 Ga. 122; 15 Ga. 25; 1 Add. Torts, 523; 17 L. R. A. 213; 1 Johns. Cas. 123; 4 Johns. 150; 2 Woodf. L. & T. 787.</p>

■ Equitable petition. Before Judge Roberts. ' Wilcox superior court. May 15, 1903. The certified copy deed referred to in the opinion was of a deed which purported to have been executed by M. A. Bentley to George K. Hamilton, dated May 28, 1846.

<p>Probate of will. Before Judge Evans. Dodge superior court. June 16, 1903.</p>

<p>1. As against a general demurrer, tlie petition set forth a cause of action.</p> <p>2, Such parts of the petition as were subject to the special demurrers filed are indicated in the opinion.</p>

Quo warranto. Before Judge Holden. Warren superior court. January 4,1904. An election for mayor and five commissioners of Warrenton was held on December 9,1903. Upon the face of the returns, Pate et al. were elected by majorities of 20 to 22 votes.

<p>t. The disputed questions of fact in this case can not be considered by this court, as the evidence submitted upon the trial in the court below is neither incorporated in the bill of exceptions, nor sent up, as a part of the record, in a brief of evidence approved and made a part of the record by the trial judge.</p> <p>2. Affidavits and documents offered in evidence and ruled out, and amendments to pleadings offered and disallowed, form no part of the record of a case, and can not be sent up to this court as such.</p> <p>3. A mere general allegation that an act of the legislature is unconstitutional, because of the presence therein of a designated provision, without calling attention in any way to the particular provision of the constitution with which it is claimed that it conflicts, is too vague and indefinite' to invoke a decision upon the validity of the statute.</p> <p>4. The act of July 30, 1903 (Acts 1903, p. 332), amendatory of the act of December 20,1900 (Acts 1900, p. 168), creating a board of commissioners for the County of Douglas, does not violate that provision of the constitution which prohibits the passage of any statute containing matter different from that which is expressed in the title thereof.</p> <p>5. An allegation that a given statute is unconstitutional, in that it violates the constitutional provision'which prohibits the passage of a special law in any case for which provision has been made by an existing general law, which fails to point out the general law which is claimed to cover the same subject as such statute, presents no question for decision by a court.</p> <p>6. The above-mentioned act of July 30, 1903, did not repeal the act which it ' purported to amend.</p> <p>7. An act creating an office may be amended by completely changing the powers and duties appertaining thereto, without destroying the office or removing therefrom the person who is lawfully filling the same.</p> <p>3. The act of July 30,1903, in question, went into effect upon its passage, except in so far as it provided for a change in the number of members of which the board of county commissioners should consist.</p> <p>9. Under the powers conferred upon them by the act of July 30, 1903, the county commissioners of Douglas county have authority to bring the tax-collector of that county to a settlement of his accounts with the county..</p> <p>10. This authority is not confined to matters In the tax-collector’s office which have arisen since that act was passed, but embraces any, accounts of such officer which have not been lawfully settled.</p> <p>11. Whether or not the board of county commissioners have the power to punish the tax-collector for contempt, for a failure or refusal on his part to appear before the board with the books, receipts, etc., appertaining to his office, after being notified to do so, the fact that the commissioners threaten to impose such fine upon him affords no reason for enjoining them from so doing. If they have no such power and should impose a fine upon him and attempt to collect it, his remedy at law is ample.</p>

<p>Petition for injunction. Before Judge Bartlett. Douglas superior court. December 1, 1903.</p>

<p>Petition for injunction. Before Judge Bartlett. Douglas superior court. December 1, 1903'.</p>

<p>A mortgage executed in another State on personalty subsequently brought into this State, but not recorded in the county where the property is brought, within the six months provided by the Civil Code, § 2726, is postponed to a purchase of the same property, made in good faith and without notice, under the foreclosure of a duly-recorded junior mortgage, although the purchase was made before the expiration of the six months allowed by law for the senior mortgagee to record his incumbrance. Hubbard v. Andrews, 76 Ga. 177, and Peterson v. Kaigler, 78 Ga. 464, distinguished.</p>

<p>The assent of an executor to a devise will he presumed after the lapse of more than thirty years; and where a finding that such assent was given will necessarily constrain a verdict for the defendant, and the plaintiff fails to rehut the presumption of assent, it is not error to direct a verdict for the defendant.</p>

<p>1. A plaintiff who asks the aid of a court of equity to relieve him from an alleged unjust and oppressive levy, but admits that part of the sum covered by the execution is justly due by him to the defendant, must, to prevail, offer to do equity by paying into court the amount admitted to be due.</p> <p>2. A debtor who has had his day in court will not be heard, after judgment. to attack the levy of the execution on the ground that his debt was infected with usury.</p> <p>3. An execution in rem against specific property may properly be levied on the entire property covered thereby, though the value of the property greatly exceed the amount of the execution. Aliter as to a sale under such a levy, where the property is susceptible of division.</p>

<p>1. Where one without fare or ticket is ordered by the conductor to leave the train, and, after opportunity to comply, conceals himself in the car and continues the journey, he is guilty of violating the provisions of the act approved December 21,1897 (Acts 1897, p. 116).</p> <p>2. Nor would the contention that the defendant was under the influence of liquor afford relief to him from liability for his criminal act.</p>

<p>Indictment for carrying concealed weapon. Before Judge Evans. Hart superior court. December 17, 1903.</p>

<p>Indictment for assault and battery. Before Judge Freeman. City court of Newnan. December "26, 1903.</p>

<p>Certiorari. Before Judge Holden. Morgan superior court. December 21, 1903.</p>

<p>Where a person having several different occupations works at one on the Sabbath day, he is guilty of violating the Penal Code, § 422, even though that particular business does not occupy most of his time on the other days of the week.</p>

<p>Indictment for murder. Before Judge Mitchell. Berrien superior court. December 21,1903.</p>

<p>Indictment for simple larceny. Before Judge Felton. Bibb superior court. January 5, 1904.</p>

<p>Indictment for burglary. Before Judge Felton. Bibb superior court. January 5, 1904.</p>

<p>Indictment for assault with intent to murder. Before Judge Mitchell. Berrien superior court. December 21, 1903.</p>

<p>1. It has been repeatedly held by this court that it would be better, in charging on the defendant’s statement, to follow the statute and there leave the matter.</p> <p>2. The charge in relation to the weight to be given the defendant’s statement was like that in Hackett v. State, 108 Ga. 46, and, while not approved, is yet not such error as will imperatively require the grant of a new trial.</p> <p>3. “Unless there be great superiority in physical strength of an assailant who strikes another a blow with his fist, or ill health in the assailed at the time, or other circumstance producing relatively great inequality between them in combat, the assailed can not justifiably resent the blow by stabbing the assailant.”</p> <p>4. There was evidence to sustain the verdict, and no ruling or charge of the court requiring the grant of a new trial.</p>

<p>Accusation of gaming. Before Judge Route. City court of Cartersville. December 18, 1903.</p>

<p>Indictment for murder. Before Judge Kimsey. Hall superior court. December 28, 1903.</p>

<p>1. The evidence was sufficient to support a conviction of assault with intent to murder.</p> <p>2. The defendant having been found guilty of the lesser offense of shooting at another, a new trial will not be granted, it appearing that the verdict was in conformity with a charge given at his request.</p>

<p>Accusation of unlawfully preventing laborers. Before Judge Norwood. City court of Savannah. January 12,1904.</p> <p>A demurrer raised the question whether the accusation set forth any offense. It alleged, that the two persons accused, on November 22, 1903, “did by intimidation and other unlawful means, to wit by a false and fraudulent offer of transportation from Savannah, Georgia, to Charleston, South Carolina, said intimidation and offer made with the intent and purpose of preventing one Bristow Mitchell from remaining in and performing his lawful occupation of laborer, did by means of the aforesaid unlawful acts attempt to prevent the said Bristow Mitchell, in the State and county aforesaid, from engaging and remaining in and performing his duties of a laborer in the lawful employment of the Merchants and Miners Transportation Company.” Exceptions were taken to the overruling of the demurrer and of a' motion for new trial, this motion containing, among others, the grounds that the verdict was contrary to law and evidence. The evidence showed that the employees of the Merchants and Miners Transportation Company, including the accused, went upon a strike; and the company brought men from other places, including Bristow Mitchell, to fill the places of the strikers. Bristow Mitchell testified: I live in Charleston, S. C. I came to this city about a month ago. I was brought over here to work for the Merchants and Miners Transportation Co.. I am working at their wharf now, trucking cotton. We sleep down at the wharf, and they feed us. I have seen the two defendants, Stephney Robbins and Jim Montgomery. On Saturday afternoon about two weeks ago I came out from the wharf. Outside- of the gate there was a crowd of strikers. I went with some of them to a bar. One of the strikers told me they would give me free- transportation to Charleston, and told me to go with them to the union hall. I went to the hall. The prisoners were in the hall when I got there. In the hall were about thirty-five men, among them the men who ,had been outside of the gate. The president of the union was in the hall with the crowd. The prisoners asked me to go with them. They took hold of me, one on each side. I was a stranger, and do not know the street, but it was in the night, and they carried me down by the canal; and when one of them asked me how much money I had, I became afraid of them, and I reached down in my pocket and pulled out $3.60, and had it in my hand when the policeman came up and arrested them. The defendants themselves never told me that'they would give me transportation; other men told me; they were strikers, but I do not know who they were. I went to the hall voluntarily, so I could get transportation. I had been drinking before going in there, but I was not drunk. I do not know how many drinks I had taken. The room was hot; and they held me, one on each side. I never gave these men any of the money; they never asked me for it; they asked me how much I had. I pulled out my money to show them, and. just then the policeman came up. They never threatened me. The fare to Charleston is $3.45. I knew what was going on about me.</p> <p>A police officer testified: They had Mitchell between them when I arrested them. When I got near them they did not see me, and I heard one say,“How much money have you got?” One or the other said to the man, “ Give it him.” The man ran his hand in his pocket, and was putting the money from his pocket into the other hand, when one of the prisoners said to him, “You will have to get out of’this town and give up the money.” Then I arrested them. I was about twenty-five feet away when I heard this. I would not be positive as to who said it, or what was the exact language; but that was about what was said. The defendants did not use any violence; they did not reach out to take the money; I got there too soon for them. I stepped up and arrested them as Mitchell was putting the money from out of his pocket into his hand. He had been drinking. One of the men told him to give it up and leave town, and then it was that he took it from his pocket.</p> <p>cited, on.the demurrer: Clark’s Cr. Proc. 156, §61;</p> <p>Johnson v. State, 90 Ga. 447; Penal Code, §31. On the évidenee: Eulford v. State, 50 Ga. 593, and cit.; 18 Am. & Eng. Ene. L. (2d ed.) 87 (c); Gray v. Building Trades Council, 97 N. W. 663.</p>

<p>Accusation of riot. Before Judge Bower. City court of Bainbridge. January 19, 1904.</p>

<p>1. A trial judge can not express or intimate an opinion as to what has been proved; but the Civil Code, § 4334, does not prevent him from referring to the testimony, in deciding a point raised in the progress of the cause.</p> <p>'l. .unless m its nature manifestly prejudicial, or the assignment of error shows wherein it was harmful, the admission of irrelevant testimony will not be sufficient ground for the grant of a new trial.</p> <p>3. The court having instructed the witness that she might answer the question or not, as she saw fit, it was not error to permit the State to prove by her that she was the defendant’s paramour. Civil Code, § 5289.</p> <p>4. Where one litigant offers in evidence an admission, in a conversation or document, of a fact disadvantageous to the other, he thereby makes admissible all such other parts of the conversation or document as may tend to explain or qualify the part first introduced in evidence.</p> <p>5. But matters in such conversations or documents otherwise irrelevant, and wholly disconnected with the part first offered, are not thereby made admissible.</p> <p>6. A careful examination of the record disclosing no error in the admission or exclusion of evidence ; and there being no assignment upon the court’s charge or refusal to charge ; and the evidence being sufficient to sustain the verdict, which was approved by the trial judge, the jpdgment is affirmed.</p>

Exceptions to auditor’s report. Before Judge Kirnsey. Hall superior court. July 21,1903. The Gainesville, Jefferson & Southern Railroad Company (hereinafter referred to as the Gainesville Company) was incorporated by an act approved August 25, 1872 (Acts 1872, p. 333), to construct a railroad from Gainesville, by way of Jefferson, to some point to be selected by it on the Georgia Railroad. The minimum capital stock was $250,000.

<p>1. A contract right to purchase designated property, within a given time, at a stipulated price, upon the credit of the person owning such right, is not assignable; and upon his dying within the time limited for the exercise of such right, without having exercised it, it does not pass into the hands of his administrator as an asset of his estate.</p> <p>2. There was no merit in the general ground of the demurrer. The petition stated a cause of action against the defendant alleged to be in the wrongful possession of, the plaintiff’s property, for the recovery of such property and "reasonable rent for the same, and also for the appointment of a receiver for such property, pending the litigation between the parties.</p> <p>3. There was a misjoinder of causes of action, and also a misjoinder of parties defendant; and as the demurrer attacked the petition upon these special grounds, the judgment sustaining the same must be affirmed. But direction is given, that, before the judgment of this court is made the judgment of the court below, the plaintiff be allowed to amend his petition so as to cure these defects therein; that upon his doing so, the case stand for trial upon the petition as thus amended; and that upon his failure to do this, the judgment below be unconditionally affirmed.</p>

<p>Actiou for damages. Bofore Judge Bower. City court of Bainbridge. December 10,1902.</p> <p>cited, on amendment: Ga. B. 87/691, 764; 88/286, 537; 89/827; 90/697; 92/664, 711; 95/678; 102/260, 773; 106/126; 107/42 ; 112/914; 86/630; 83/88; 78/525. Liability of city: Ga. B. 53/607; 55/18; 58/238; 59/545; 60/473; 66/309; 68/834; 75/167; 78/295, 585.</p> <p>Amendment, new cause: Civil Code, § 5090; Ga. R. 82/207; 83/759; 86/624; 91/716; 93/511; 95/296, 407; 114/678; 75/648; 73/718; 70/193; 1.5 Am. & Eng. Ene. L. 427; 14 Enc. PI. & Pr. 241; 4 Houst. 548 ; 2 Dill. Mun. Corp. 1020 — 25. Defect not proximate cause of injury: Civil Code, § 3912; Ga. R. 103/847; 106/176; 2 Dill. Mun. Corp. 1015; 97 Mass. 258; 8 L. R. A. 82 ; 16 L. R. A. 106; 17 L. R. A. 217; 6 Am. Neg. R. 84, and cit.</p>

<p>Trover. Before Judge Spence. Worth superior court. July 6, 1903.</p> <p>cited Ga. R. .14/278; 37/693; 40/330; 99/482; 87/100; 96/795; 111/763; 113/1158; 114/677.</p> <p>cited 4 Lawson’s R. & P. §§ 1822, 1826, 1830, 1837; 5 Am. & Eng. Ene. L. 192-7, 209-10; Ga. R. 58/574; 87/100, 333; 93/813; 111/40; 73/472; 117/393; Civil Code, § 2286.</p>

Action for damages. Before Judge Parker. Charlton superior court. March 9, 1903.

<p>Certiorari. Before Judge Dart. Coffee superior court. December 31, 1902.</p>

<p>Action for damages. Before Judge Reynolds. City court of Waycross. March 9, 1903.</p>

<p>Action on guaranty. Before Judge Quincey. City court of Douglas. April 13, 1903.</p>

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

Petition for certiorari. Before Judge Parker. Glynn superior court. April 30,1904. The judge refused a certiorari, and the record therefore contains only what was recited in the petition therefor. It alleged that on July 19, 1902, the jury returned a verdict in the justice’s court in favor of Beach against Levadas; that the justice thereupon entered up judgment on the summons in said case, to which he affixed his official signature. .

<p>Motion to set aside judgment. Before Judge Reynolds. City court of Waycross. June 11, 1903.</p>

<p>Garnishment. Before Judge Reynolds. City court of Way-cross. April 30, 1903.</p>

<p>Any conflict in the evidence as to notice by the plaintiffs of defendant’s interest in the timber, and as to what would be a reasonable time within which the timber should be cut, was a matter to be passed on by the trial judge, and there was no abuse of discretion in refusing the injunction.</p>

<p>Injunction. Before Judge Parker. Coffee superior court. August 19, 1903.</p>

<p>Attachment. Before Judge Reid. City court of Atlanta. January 9, 1903.</p>

<p>1. The manufacturer of a buggy, who sells it to a municipal corporation for the use of one of its employees, representing it to be strong and in good condition, but knowing that it is in fact defective, the defect being so concealed by the use of paint and grease that the purchaser can not detect it, is liable in damages to the person whose use of the buggy was contemplated at the time of the sale, for injuries caused by such defect; and this is so notwithstanding there was no privity of 'contract between the plaintiff and the defendant in the sale of the buggy.</p> <p>2. The amendments which were allowed merely amplified the original petition, and were not open to the objection that they set out a new cause of action.</p>

<p>Complaint. Before Judge Beid. City court of Atlanta. March 2, 1903.</p>

<p>Affidavit of illegality. Before Judge Reid. City court of Atlanta. April 7, 1903.</p> <p>Mrs. Arrowood borrowed money and executed a deed- to land to secure its repayment. Default in payment having been made, judgment was obtained against her, with a special lien upon the land; and to the levy of an execution from this judgment she interposed an affidavit of illegality, which was dismissed; and she excepted. Her note for the money and the security deed were made to H. L. McKee, guardian of Fannie May Powers, who executed a bond for. reconveyance of title on payment of the note. The deed conveyed to “ H. L. McKee, guardian as aforesaid, his successors, heirs, executors, administrators, and assigns.” ,,The suit on the note was brought by H. L. McKee, alleging that he was the legal guardian of Fannie May Powers, a minor, and that Mrs. Arrowood was indebted to him as such guardian, etc. A verdict for the plaintiff was rendered; and thereupon judgment was entered in favor of the plaintiff, which was signed by the judge at the right, and by the plaintiff’s attorneys at the left of the paper on which the judgment was written. A quitclaim deed for levy was filed and recorded, which recited that it was from H. L. McKee as guardian of Fannie May Powers, and was signed, “ H. L. McKee, guardian Fannie May Powers.” The grounds of the affidavit of illegality were: (1) Neither the plaintiff nor his attorneys had entered up and signed judgment upon the verdict. (2) The court had no authority to render or sign a judgment; and the judgment signed by the court was void, and no valid execution could issue therefrom. (3) No sufficient deed reconveyiug title to deponent was filed and recorded; the. deed actually filed having been made without an order of the court of ordinary; and if the title was in H. L. McKee individually, the deed did not convey his interest, but purported to convey only the title of his ward.</p> <p>Judgment illegal: Civil Code, §§ 5339, 5076, 5848; Ga. B. 52/556; 63/417, 423; 111/334, and eit.; 39 Pa. St. 263, 80 Am. Dec. 521. Eeconveyance did not carry title of McKee individually: Civil Code, § 2998; Ga. B. 92/260; 109/288, 308; 111/698 ; 117/786; 46/261; 115/617. Eeconveyance by guardian illegal, if no order of court of ordinary: Civil Code, §§ 2545 — 7, 5432; Code of 1863, §§ 1779, 3581, 2508-9; Code of 1882, §§1828, 1970, 3654; Cobb’s Dig. 310, 517; Ga. B. 49/397; 59/213, 229; 60/403, 677.</p> <p>cited Ga. B. 112/635; 113/1141; 114/934; 92/673, 815; 87/751;'55/475.</p>

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

<p>1. For a sufficient consideration the shipper relieved the carrier óf injuries to the-live stock caused by-viciousness of the animals or defects in the 'car, which had been examined by the shipper. ,</p> <p>2. All the evidence tended to show that the animal had been injured in consequence of one of the risks expressly assumed by the shipper, and the cohrt did not err in granting a nonsuit. ®</p>

<p>Where the judge of the superior court sanctions a petition for certiorari which is not properly verified, and in his answer to the writ the justice of the peace fully supports and corroborates the averments of the petition in all material particulars, it is too late to dismiss the certiorari on the ground that the averments of the petition are not sufficiently verified.</p>

Certiorari. Before Judge Lumpkin. Fulton superior court. April 29, 1903. An execution in favor of Stocks Coal Company against W. P. Burt, a dentist, was levied upon a dentist’s chair, which was claimed as exempt both as a chair and as a common tool of trade of himself under the statutory or short homestead. Civil Code, §2866, par. 5, 8.

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. November 14,1902.</p>

<p>Receiver. Before Judge Evans. Washington superior court. December 16, 1903.</p>

<p>The certificate of a trial judge to a bill of exceptions complaining of a judgment which affirmatively appears to have been entered in exact compliance with a judgment of this court will not be compelled by mandamus.</p>

Exceptions to auditor’s report. Before Judge Littlejohn. Sumter superior court. March 13, 1903. L. N. Hudson died owning real estate in fee, an interest as tenant in common with his brothers, and sisters in other real estate, besides which he owned an interest in the mercantile business of Hudson & Brother, the defendant W. B. Hudson being the other partner.

<p>1. Where the main purpose of the suit is to foreclose a mortgage, and there is also an incidental prayer for relief appropriate to insolvency proceedings, a receiver’s possession thereunder will not be affected by a subsequent adjudication in bankruptcy.</p> <p>2. But where the main purpose of the petition is to obtain relief appropriate only in insolvency proceedings, the fact that a mortgage may be foreclosed as an incident therein will not save the case from the nullifying effect of bankruptcy on pending State insolvency proceedings.</p> <p>3. In the present case the mortgage does not appear in the record, the pleadings do not describe the mortgaged property, and there is no prayer for a foreclosure. The prayers, to marshal the assets, to enjoin other creditors from proceeding except in such suit, and to appoint a receiver to take charge of all the property of the defendant, are adjusted to insolvency proceedings, and n<?t to the foreclosure of a mortgage.</p>

Attachment. Before Judge Parker. Glynn superior court. March 13, June 2, 1903.

<p>Case. Before Levi O’Steen, judge pro hac vice. City court of Douglas. January 22, 1903.</p>

Action for damages. Before Judge Parker. Glynn superior court. July 21,1903. Lumber as sawn was trucked along an elevated platform or “ brow,” and thence lowered to a pile on the ground. Dudley was inspector on tbe brow. The regular truckman, Bryan, was absent. There is a conflict in the evidence as to who selected Anderson to act as a substitute.

<p>1. In applications for continuance on the ground of surprise resulting from an amendment to pleadings, the party claiming surprise must make oath, or his counsel state in his place, “that such surprise is not claimed for the purpose of delay.”</p> <p>2. “ Good health ” is a relative term, and does not mean absolute freedom from physical infirmity, but only such a condition of body and mind as that one may discharge the ordinary duties of life without serious strain upon the vital powers.</p> <p>3. It follows from the foregoing that when, in a suit by a female against a railroad company for damages for personal injuries, it is alleged that the plaintiff was, prior to the injuries, “in good health,” a recovery may be had notwithstanding it appears from the evidence that at the time of the injuries the plaintiff was laboring under an infirmity of which she was ignorant, and which did not interfere with the discharge by her of the ordinary duties of life, and that the result of the negligence of the railroad company was, not to produce an infirmity, but simply to aggravate the existing infirmity.</p> <p>4. There was no error in any of the rulings complained of, which required the granting of a new trial. The verdict, though large, was authorized by the evidence, and the discretion of the trial judge in refusing a new trial will not be interfered with.</p>

<p>Action for damages. Before Judge Reynolds. City court of Waycross. August 1, 1903.</p>

Complaint. Before Judge Reid. ■ City court of Atlanta. January 19,1903. ‘ On November 23,1901, Griffin brought suit against the Mutual Life Insurance Company of New York, for $244, alleged to be due as commissions on policies of insurance written by him as agent of the company.

<p>Affidavit of illegality. Before Judge Lumpkin. Fulton supe' rior court. January 12, 1903.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. March 2, 1903.</p>

<p>The plaintiff’s evidence made out his case as laid, and it should have heen left for the jury to determine whether his conduct leading up to his injuries was negligent.</p>

Action on insurance policy.' Before Judge Lumpkin. Fulton superior court. March 20, 1903. Hawkins borrowed from the Fidelity Trust & Loan Company $1,685, and secured the same by a deed to real estate under the Civil Code, § 2771. The receiver of this company applied to the Scottish Union and National Insurance Company for a policy of insurance on the building.

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. March 9,1903.</p>

<p>1. The original petition was sufficient as against a general demurrer. The amendment thereto related to matters which were germane, and was properly allowed; and the general demurrer to the petition as amended was properly overruled.</p> <p>2. A defect in a petition resulting from a nonjoinder of proper parties can not be taken advantage of by general demurrer.</p>

<p>Certiorari. Before Judge Lumpkiu. Fulton superior court. April 28,1903.</p> <p>Wynn obtained a judgment against Haralson in 1897. On March 18, 1902, summons of garnishment was served on the Armour Packing Company. Its answer was filed April 28, 1902. Wynn traversed the answer, and the issue came on to be tried on June 30, 1902. The plaintiff offered his judgment showing that the principal, interest, and cost thereof amounted to $73.52. He also offered evidence to show that the Armour Packing Company, between March 22 and April 26, 1902, had paid Haralson $108, being his weekly salary for that period. It later appeared that $36 of this sum accrued before the bankruptcy proceedings, and $72 between the filing of the.petition therefor and the time of making answer. The garnishee, over the objection of the plaintiff, offered the record to show that Haralson was adjudged a voluntary bankrupt on April .3, 1902, and, on May 24, 1902, had been discharged in bankruptcy from all debts provable on April 5 (?), 1902. The justice of the peace found in favor of the garnishee. Wynn sued out a certiorari. The judge of the superior court sustained the exceptions and directed that judgment be entered in favor of Wynn against the Armour Packing Company for $72. The Armour Packing Company excepts.</p>

<p>Although a corporation, at the instance of a married woman, may have transferred to her husband shares of its capital stock which had been issued to - her, but which she had without an order of court sold to him, yet the corporation can not be held accountable to her therefor, unless, at the time it made the transfer of the same or before the stock got into the hands of an innocent purchaser, it had notice of the marital relation existing between her and the person to whom she directed the transfer to be made, and the resulting incapacity on her part to make such unauthorized sale to him.</p>

<p>Motion to reinstate. Before Judge Reid. City court of Atlanta.- May 22,1903.</p> <p>Bowen sued Wyeth for $600, alleged to be due as salary and commissions for the sale of machines. The petition contained an allegation that said defendant is the general agent of the American Arithmometer Company ” for the South Atlantic States ; and that “ said defendant as general agent of said company employed petitioner to sell said machines” on the terms stated in the petition. The defendant demurred generally and specially. The bill of exceptions recites that after argument on the demurrer, the judge stated he would render a decision later and give the plaintiff ten days in which to amend if in the opinion of the court the petition was amendable and the demurrer was sustained. On May 10, the court sustained the general demurrer. On May 11, 1903, the plaintiff moved that “ the defendant be required to show cause why the case should not be reinstated, and the petitioner be allowed to amend the petition by striking out the allegation that Wyeth made the contract as general agent, and such other amendments as the petitioner may offer and the court may think proper.” To the petition were attached the proposed amendments. The motion came on to be heard, May 22, at chambers. The court refused to allow the case to be reinstated. From the bill of exceptions it appears that the demurrer was argued in term. It does not appear whether court had adjourned for the term on the day the motion to reinstate was made and the rule nisi granted.</p>

<p>Trover. Before Judge Calhoun. City court of Atlanta. May 9,1903.</p>

<p>A plaintiff can not declare upon a special contract.with a carrier and then, by amendment, claim that he is not bound by the terms of such special contract, and add a new and distinct cause of action.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. April 28, 1903.</p>

<p>Following the decisions of this court in Western Union Tel. Go. v. Shotter, 71 Ga. 760, and Western Union Tel. Co. v. Mini River Lumber Co., 114 Ga. 576, it is held that in the transmission of a telegraphic message the telegraph company is the agent of the sender, to whom, and not to the company, the recipient must look for damages arising out of error in the transmission.</p>

<p>Garnishment and claim. Before Judge Lumpkin. Eulton superior court. May 7,1903.</p>

<p>Motion to set aside judgment. Before Judge Lumpkin. Eulton superior court. April 21, 1903.</p>

Complaint. Before Judge Calhoun. City court of Atlanta. June 13, 1903. It appears that Mrs. Morrison owned a business in Atlanta known as the E E-M Co.,' and on May 29, 1900, through her husband, sold to Dickey a half interest therein, in consideration of $500 cash, and “750 to be paid as provided hereafter;” Dickey agreeing to pay into the business from-time to time, as needed, other sums alleged in the declaration to be $2,500.

<p>Under the uniform procedure act of 1887, the superior court, on the equity side of it, has the same authority, during the term, to review its judgments as the courts of law had prior to the passage of that act.</p>

<p>Motion to set aside judgment. Before Judge Reid. City court of Atlanta. May 16, 1903.</p> <p>A rule of the city court of Atlanta, governing the call of cases from the absence docket, provides that where a case has been passed to the absence of counsel, either party shall always have the right to call said case from the absence docket at any time after the expiration of the leave of absence, without notice, by furnishing to the clerk of said court a memorandum giving the style, number, and term of the case, one day before the bar meeting ; and the judge calls the case from the memorandum* so furnished, instead of the bench docket. The judge of the city court held that the memorandum required by this rule, to be sufficient, must contain the name of counsel for the opposite party.</p>

<p>1. Though a standing railway train he an unauthorized obstruction of a public crossing, a person attempting to pass between the cars by climbing oyer the bumpers, if injured thereby in consequence of a sudden movement of the train, can not recover, unless the engineer, conductor, or some other person having control of the train’s movements, knew of his attempt to cross or had notice of his exposure to danger. If the only employee who knew of the perilous position in which the person attempting to cross had placed himself was a watchman at the crossing, no recovery can be had, unless it ap-</p> <p>■ pears that the watchman was so situated, after he knew of the dangerous position in which the person was placed, as that he could signal the engineer or other employees in control of the train’s movements, and thus prevent injury to the person attempting to cross, and that he failed to give such signal, or that he gave the signal and it was disregarded.</p> <p>2. A count in a petition against a railway company, claiming damages for' negligence, which alleges in general terms that the defendant was guilty of negligence, should be stricken on special demurrer setting up that the petition fails to set forth the particulars in which the defendant was negligent, unless the defect in the petition is cured by amendment.</p>

<p>Indictment for subornation of perjury. Before Judge Eelton. Bibb superior court. January 6, 1904.</p>

<p>1. This court can not say, as matter of law, that the court helow erred in holding that the person served with copy and process in this case was an agent of the defendant, within the meaning of the Civil Code, §§ 1899, 1900.</p> <p>2. Nor did the court err in holding that the sheriff's return of service, as ' amended, was legally sufficient.</p> <p>3. The trial judge did not abuse his discretion in. refusing to open the default, for any of the reasons assigned in the motion presented by the defendant.</p> <p>4. The amendment to the plaintiff's petition, allowed by the eourt at the trial, did not materially change his cause of action, and therefore did not open the petition to demurrer or plea.</p> <p>5. The jury, under the state of the pleadings, being confined to the question of the amount of the damages suffered by the plaintiff, and no complaint being made in the motion for a new trial that their finding was excessive, the ' court below committed no error in refusing a new trial.</p>

<p>1. “ The State can only be estopped from asserting her right to her own property by legislative enactment or resolution.”</p> <p>2. Prescription does not in any case run against the State.</p> <p>3. The State in her sovereign capacity may bring an application for an injunction under the timber-cutters act embraced in the Civil Code, § 4927,' by attaching to the petition as an abstract of title a statement setting forth that the land in controversy has never been granted, and that the title thereto is still in the State in her sovereign capacity. Cobb, J., dissenting.</p> <p>4. (Per Cobb, J.) The attorney-general may bring an equitable action in the name of the State, in the nature of the common-law proceeding by information of intrusion, for the recovery of land title to which is in the State, and in aid of such action obtain an injunction to restrain a trespass upon the , land, without reference to whether the alleged trespasser is insolvent, or whether the damages resulting from the trespass are irreparable.</p> <p>5. (Per Cobb, J.) The petition in the present case can be properly construed ás an action of the character indicated in the preceding note.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. October 28, 1902.</p>

<p>Traverse of entry of service. Before Judge Reid. City court of Atlanta. March 17, 1903.</p>

<p>Accusation of carrying concealed weapon. Before Judge Henderson. City court of Vienna. December. 5, 1903.</p>

<p>1. A woman sworn as a witness to prove a rape alleged to have been committed upon her may be impeached by proof of bad repute as to lewdness, but not by evidence of specific acts of unchastity.</p> <p>2. Nor was the withdrawal by the court of the woman’s denials of specific acts of lewdness hurtful to the plaintiff in error.</p> <p>3. While the oft-repeated observation of Lord Hale as to rape cases is entirely proper by way of argument to the jury, it is not a fitting charge by the court.</p> <p>4. While the court erred in charging, as an abstract proposition, “ If, however, a female yields because she is forced by fear of death or by duress, the intercourse, under such circumstances, would be against her will, and the offense would be rape,” there being no evidence to justify such charge, the case was sufficiently made out by evidence of actual force ; and this error was not repeated in subsequent charges as to the use of force.</p> <p>5. The court correctly charged the jury as to the effect which evidence of lewdness on the part of the woman might have, both as to her credibility and as to the probability of her yielding.</p> <p>6. The court committed no harmful error in charging, or in refusing to charge ; and the jury having found the defendant guilty, upon sufficient evideflce, and the trial judge having approved their finding, this court will not interfere.</p>

<p>Application for mandamus. Before Judge Felton. Bibb superior court. February 25,1904.</p>

Equitable petition. Before Judge Reagan. Monroe superior court. February 2, 1903. On January 6, 1856, Reuben Brown made his will, giving therein a large number of slaves and valuable real estate to his unmarried daughter Lucinda. She soon after married John H. Jossey, who died about 1875, leaving no children except those adopted. His wife Lucinda did not remarry, and died, February 13, 1901, without ever having had born to her any child.

<p>Complaint for land. Before Judge Littlejohn. Dooly superior court. February 25, 1905.</p>

<p>One who receives of a railroad company a gratuitous pass over its line, which by its terms is “issued only on condition that the person accepting it assumes all risks of accidents, and expressly agrees that the company shall not be liable, under any circumstances, for any injury to the person, or loss or I damage to the property of the person using'it,” can not recover of the company the value of baggage lost while traveling on such pass.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. March 28,1903.</p>

<p>Exceptions to auditor’s report. Before Judge Lumpkin. Fulton superior court. April 13,1903.</p>

<p>1. Where a verified account is attached to the summons in a justice’s court and served on the defendant personally, the affidavit performs the office of evidence, and the plaintiff is entitled to a judgment unless a verified defense is filed.</p> <p>2. Suit on an unverified account may be met by an unverified plea.</p> <p>3. But where a suit on an unverified account has been personally served, and the same is met by no defense whatever, the defendant’s silence is to be treated as an admission of the correctness of every item in the account, and the plaintiff is entitled to judgment on the call of the docket and without the case being assigned for trial.</p> <p>4. Questions as to the description or misjoinder of the parties are concluded by the judgment.</p>

<p>1. In an action on an unconditional promissory note, a separate agreement signed by special agents of the holder in their individual capacity, and which does not purport to bind the holder, by the terms of which it is stipulated that if at the maturity of the note the maker is unable to pay it he may surrender the life-insurance policy for the premium of which it was given, and cancel the note, is not admissible in evidence to bind the holder.</p> <p>2. Nor in such a case is it competent to prove, as a part of the res gestae of the transaction, declarations of the special agents that their representations were made by authority of their principal, these representations having been reduced to writing, and the writing showing on its face that it bound only the agents in their individual capacity.</p>

<p>1. If the point he raised by special demurrer, the plaintiff, who relies on the privilege of renewal under the Civil Code, § 3786, to escape the bar of the statute, may be required to attach a copy of the petition in the first suit, so, that the court may determine, as matter of law, whether it was for the same cause of action as the second, between the same parties, brought before the original bar had attached, and in a court having jurisdiction of the subject-matter.</p> <p>2. Civil Code, § 3786, is remedial, and to be liberally construed so as to preserve the right to renew the cause of action set out in a previous suit where-ever the same has been disposed of on any ground other than one affecting the merits.</p> <p>3. A suit brought in a court jhaving jurisdiction of the subject-matter is not void, and, when the petition therein is seasonably served, operates to toll the statute.</p> <p>4. A suit in such a court is notice of the plaintiff’s intent to enforce by judicial proceedings the cause of action therein indicated, and is effective to warn the defendant to preserve its evidence for use therein or in a renewal suit.</p> <p>5. Where the plaintiff begins an action in a court of this State having jurisdiction of the subject-matter, and, after the bar of the statute has attached, the same is dismissed because of a ruling indicating that the court has no jurisdiction of the person, such action may be renewed within six months in another court of this State, having jurisdiction of the person and the subject-matter.</p> <p>6. Where there is a plea to the jurisdiction, which is overruled,-and a verdict for the plaintiff, which is reversed by the Supreme Court on the ground of error in reference to the question of jurisdiction, the receipt of the remittitur by the clerk of the lower court after its adjournment, or during recess, vacates the verdict and judgment in favor of the plaintiff and re-establishes the control of the trial court over the case.</p> <p>7. Thereafter, and before the remittitur is entered on the minutes, the plaintiff, in term time or vacation, may dismiss the suit.</p> <p>8. The petition set out a cause of action in the administratrix under the Tennessee statute ; but the children were improperly named as beneficiaries, and direction is given that their names be stricken as such.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. June 20, 1004.</p>

<p>Equitable petition. Before judge Lumpkin. Fulton superior court. June 24,1903.'</p>

<p>1. A return of service of a justice’s court summons, which alleges that the constable served the defendant “ by serving him at his most notorious place of abode, . . personally, by calling at the door” of his residence and handing the summons to a man who answered to the name of the defendant, is a return of personal service.</p> <p>2. A finding by a jury in favor of a traverse to such a return is riemanSoS when the evidence shows that no personal service was had upon the defendant, even though it may also appear from the evidence that service was perfected by leaving a copy of the summons at his usual and most notorious place of abode.</p>

<p>Certiorari. Before Judge Roan. -Newton superior court. July 3, 1903.</p>

<p>Petition. Before Judge Holden. Washington superior court. 'March 5,1903.</p>

<p>• 1. When in the trial of a proceeding to foreclose a sawmill man’s lien the jury return a verdict in favor of the plaintiff for the full amount claimed, with interest, the verdict will be construed to be a finding in favor of the lien claimed;</p> <p>2. Objection to a judgment, that it does not follow the verdict, can not be properly made a ground of a motion for a new trial.</p> <p>3. The evidence was conflicting and probably preponderated in favor of the defendant, but there was some evidence from which the jury could find that the plaintiff was entitled to a lien for the amount claimed; and if there was any error in any of the charges complained of, such error was not of a character requiring the granting of a new trial.</p>

<p>An accusation which charged the accused with carrying a pistol about his person to a place of public worship, the same being a designated church, where a congregation was then assembled for public worship, was not supported by proof that he came into possession of the weapon at a spring from which the congregation was using water and which was so near the church as to be in legal contemplation at the church. “Coming into possession of a pistol j while at ” a place of public worship “ is not carrying a pistol to ” a place of public worship.</p>

<p>Petition for injunction. Before Judge Lewis. Greene superior court. August 11, 1903.</p>

<p>While the act of December 16,1897, empowers county boards of education to purchase school-books and rent them to the pupils, it does not authorize them to compel the pupils to rent such books and make the payment of the rental charge a condition precedent to admission to the schools without regard to whether the pupils already have such books.</p>

<p>1. In reviewing a judgment of a judge of the superior court overruling a certiorari, questions which might have been made in the inferior judicatory but which are not referred to in the petition for certiorari will not be considered.</p> <p>2. The act of December 20, 1899, providing that in certain cases railroad companies which have leased their property or lines of railroad may be held liable for claims against the lessee, does not contemplate that service upon the agent of the lessee will amount to service upon the lessor. • While the act imposes a liability on the lessor, such lessor should be properly served.</p> <p>3. Where in such a case the sheriff makes a return of service which is traversed by the defendant (the lessor), the latter may introduce evidence to show that no service was in fact made upon it.</p>

<p>1. While a bill of exceptions is amendable by the record so as to introduce the names of parties, it is futile to thus make new parties defendant in error unless they will waive service and consent that the case be heard by the Supreme Court on its merits.</p> <p>2. An acknowledgment of service upon a bill of exceptions does not relate to or bind any. person not actually named or sufficiently designated therein as a defendant in error when the acknowledgment is entered.</p>

Equitable petition. Before Judge Lumpkin. Fulton superior court. February 28, 1903. The Dade Coal Company brought suit against Penitentiary Company No. 2 and its stockholders, and another suit against Penitentiary Company No. 3 and its stockholders. The allegations in the two cases were in many respects identical, and both, being controlled by the same principle, were argued together.

<p>An incomplete deed, being without a grantee, can not be completed in this respect without authority from the grantor.</p> <p>The doctrine of estoppel by deed has no application to the present case.</p>

<p>1. While attorneys at law have the same right and power over suits brought in behalf of their clients to enforce their lien for fees as their clients have, and such suits may be prosecuted for the benefit of the attorney having a lien, notwithstanding a settlement between the parties to the suit, made without the knowledge or consent of the attorney, still there can be no recovery in behalf of the attorney, unless the evidence is of such a character as would have authorized a recovery by the client if the suit were still proceeding for his benefit.</p> <p>2. The evidence being of such a character that a recovery in behalf of the • plaintiff would not have been authorized, a finding in favor of the attorneys who were prosecuting the suit to enforce their lien for fees was unauthorized, and the court erred in not granting anew trial.</p>

Action for damages. Before Judge Reid. City court of Atlanta. July 3, 1903. The following is added in connection with the statement of facts in the opinion. Both parties excepted to the following remarks made by the judge in- the hearing of the jury: “I will state at this point what I understand this case to be, under the Supreme Court ruling. The case is based on the proposition that the master sent his servant into an unsafe place to work.

Equitable petition. Before Judge Lumpkin. Fulton superior court. June 3, 1903.

Action for breach of contract. Before Judge Lumpkin. Fulton superior court. July 25, 1904. The 'Northington-Munger-Pratt Company sold a cotton-gin outfit to Freeman & Williamson for $1,500 payable in installments, retaining title until the purchase-money was paid. The first note fell due, and after the default had continued for about a month, the company instructed Baker, their agent, to get possession of the outfit and sell.

<p>Injunction and interpleader. Before Judge Lumpkin. Fulton superior court. December 14, 1904.</p>

<p>1. As a general rule, the death of a party pending the trial causes a mistrial, and no further proceedings can be had in the cause until parties have been made, when the case must be tried de novo. This rule applies to a case pending before an auditor.</p> <p>2. When the competency of a witness depends on the determination of a question of fact, the decision of the judge will not generally be disturbed, if there is any evidence to authorize his finding.</p>

<p>Application for administration. Before Judge Roan. Campbell superior court. February 3, 1903.</p>

<p>In order for the bringing of a suit against a county to constitute a presentation of the claim to the county officials within the meaning of the Political Code, § 362, the petition must not only be filed but served within twelve months after the claim accrues. In Dement v. DeKalb County, 97 Ga. 733, the petition was filed and served within the twelve months.</p>

<p>Exceptions to auditor’s report. Before Judge Reagan. Clayton superior court. April 13, 1903.</p>

<p>Exceptions to auditor’s report. Before Judge Roan. Clayton superior court. May 2, 1903.</p>

Action for damages. Before Judge Roan. DeKalb superior court. March 9,1903. Turner sued the railroad company for $100, being the value of three cows killed by its train on March 15, 1902.

<p>Complaint on notes. Before Judge Roan. DeKalb superior court. May 16,1903.</p>

<p>1. The innocent holder of negotiable paper may transfer the same for value to one with notice of a defense, but the transferee will take the same free from the equity.</p> <p>2. Where in consideration of her husband’s indebtedness a wife gives her note to a firm, who transfers the same before due to an innocent purchaser as collateral security for the firm’s debt, and on dissolution one of the members of the firm assumes such debt, and, on the discharge thereof, regains the wife’s note, he does not stand in the shoes of the innocent purchaser, and is not protected against the wife’s defense.</p> <p>3. The witnesses were competent, there being no testimony as to transactions with a deceased partner.</p> <p>4. The evidence was conflicting, but sufficient to sustain the verdict for the plaintiff.</p>

<p>Action for damages. Before Judge Evans. Bulloch superior court. January 12,1903.</p>

<p>Complaint. Before Judge Robinson. City court of Wrights-ville. February 17, 1903.</p>

<p>Complaint on note. Before Judge Taliaferro. City court of Sandersville. March 11, 1903.</p>

<p>Action for damages. Before Judge Lewis. Johnson superior court. May 15, 1903.</p>

<p>Certiorari. Before Judge Evans. Tattnall superior court. May 4, 1903.</p>

<p>Petition for injunction. Before Judge Evans. Emanuel superior court. January 8,1904.</p>

<p>Equitable petition. Before Judge Gary. Richmond superior court. February 16,1903.</p>

<p>Complaint. Before Judge Gary. Richmond superior court. March 11, 1903.</p>

<p>One desiring to purchase goods which had been pledged as security for a debt was required by the pledgee, as a condition precedent to the release of the goods, to deposit the purchase-price to his account in a named bank, and to “save him harmless in the transaction.” Accordingly, the purchaser deposited to the credit of the pledgee, in the bank designated, a draft drawn ; on a bank in another city for the amount in question. It was known to the officers of the bank first mentioned that the sole purpose of the draft and deposit was to obtain the release of the goods from the custody of the pledgee, but no special instructions were given them in regard to the funds so deposited. The draft was forwarded for collection, and was duly paid; but before the money was returned to the bank in which it was deposited, that bank failed and was placed in the hands of a receiver. The purchaser of the goods, in accordance with his agreement, paid the amount of the draft to the pledgee, and brought suit against the depositary bank. Held, that the deposit to the account of the pledgee was a general, and not a special deposit, and did not entitle the purchaser, who was subrogated to the rights of the pledgee, to priority over the claims of other general depositors.</p>

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

<p>Suit was brought in a city court on a draft given for the purchase of personal property. The plea admitted the sale and the delivery of the article bought. It did not allege that the property was worthless or of value less than the draft given. There was no plea of total or partial failure of consideration or one in abatement of the purchase-money. The sole prayer of the defendant was for a cancellation and delivery of the draft, and rescission on the ground of deceit and misrepresentation as to the quality of the goods and breach of the warranty. Held:</p> <p>1. Breach, of warranty does not annul an executed sale, but gives the purchaser a right to damages where the contract price has been fully paid; dr he may plead in abatement of the purchase-money when sued therefor.</p> <p>2. A city court can not grant affirmative equitable relief.</p>

<p>Action for damages. Before Judge Littlejohn. Dooly superior court. July 2, 1903.</p>

<p>Certiorari. Before Judge Mitchell. Berrien superior court. March 27, 1903.</p>

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

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

<p>Equitable petition. Before Judge Roberts. Wilcox superior court. May 15, 1903.</p>

<p>1. The court should instruct the jury, even though not so requested, upon the general features of the law applicable to the material and substantial issues in a case, and leave to the jury the determination of all disputed issues of fact.</p> <p>2. Where amare has been temporarily disabled for service and also permanently injured, the measure of the owner’s damage includes reasonable hire for the time during which the disability continues, as well as making good any diminution in market value occasioned by the permanent effects of the injury (the aggregate of these amounts being limited to the value of the mare with interest thereon), and also any expenses incurred in keeping and treating the mare during the period of disability.</p>

<p>Equitable petition. Before Judge Parker. Glynn superior court. January 22,1903.</p>

<p>Levy and claim. Before Judge Reid. City court of Atlanta. July 3,1903.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. March 16,1903.</p>

Action for damages. Before Judge Roan. Clayton superior court. April 18, 1903. Harp, a minor of sixteen, sued the Southern Railway Company for a wrongful ejectment.

<p>Processioning. Before Judge Evans. Washington superior court. January 28, 1903. .</p>

Complaint for land. Before Judge Evans. Tatnall superior court. April 7, 1904.

<p>The case presented an issue of fraud. The evidence was of such a character as to authorize a finding either way. The judge submitted the issues fairly to the jury; and there was no error of law requiring the granting of a new trial.</p>

<p>Levy and claim. Before Judge Holden. Washington superior court. June 4, 1903.</p>

<p>Complaint. Before Judge Eve. City court of Richmond county. January 13,1903.</p> <p>The Southern Building and Loan Association of Huntsville, Alabama, sued James Rooney, of Richmond county, Georgia, on a sealed note dated at Huntsville, Ala., July 24, 1895, whereby he promised to pay the company “ at its office in Huntsville,” $2,500 with interest at five per cent, per annum, payable monthly, and a premium of five per cent, per annum, payable monthly, for a loan under an application dated July 10, 1895, on 50 membership shares. He transferred the shares as collateral for the payment of the loan. This indebtedness was likewise secured by a deed to real estate in the city of Augusta. Attached to the petition was a copy of the hy-laws of the company, reciting, among other things, that the object of the association is to afford the shareholders safe and profitable investment; that all contracts and securities shall be construed by the laws of Alabama; and a statement of the terms and conditions of membership, the method of borrowing on the shares, and the amount of monthly payments, fines, etc. The defendant by plea admitted the making of the contract, payments thereon for some years, and the default, but set ixp that the debt was infected with usury. There was a verdict in favor of the plaintiff, which was set aside by the judgment of the Supreme Court, reported in 115 Ga. 400, because of error in admitting interrogatories which had been improperly executed. On the second trial the defendant amended his pleas, all of which were allowed, except the third, wherein he set up “ that plaintiff is not a building and loan association as known to the laws of Georgia,” because (a) all payments made by the stockholders, borrowers or non-borrowers, do not go into a common fund, but are divided under a system whereby holders of shares of the same face value receive a larger amount of the common profits than do other stockholders; (5) there is not an equality of burden and rights, some stockholders having a less burden and a greater right than others; (c) there are two kinds of stock, “ prepaid ” and “ installment,” on which different sums are paid, with a difference in the amount that may be borrowed, and difference in the distribution of the profits, these differences being set out in detail. “ Wherefore defendant says that plaintiff could make no genuine building and loan contract as known to the laws of Georgia.”</p>

<p>Distress warrant. Before Judge Eve. City court of Richmond county. April 4, 1903.</p>

<p>Certiorari. Before Judge Gary. Richmond superior court. April 3, 1903.</p>

<p>A judgment rendered in.a-justice’s court will not be kept in life and the running of the dormancy statute arrested by entries on the execution, recorded upon the general execution docket, but not recorded upon the execution docket of the superior court of the county of the defendant’s residence.</p>

<p>1. The neglect of a party excepting to an auditor’s report on matters of fact, or on matters of law dependent for their decision upon the evidence, to point out by appropriate reference to the auditor’s brief of evidence, or to attach as exhibits to his exceptions, those portions of the evidence relied on to support the exceptions, renders the report of the auditor of little or no assistance to the court, and is a sufficient reason, in an equity case, for refusing to approve the exceptions of fact and for overruling the exceptions of law.</p> <p>2. The provisions of the Civil Code, § 3546, are applicable only, to planters and commission merchants.</p> <p>(c) A planter, as used in that section, is one who is engaged in the business of producing crops from the soil; and it is immaterial whether he sows and reaps with his own hand, the hand of a tenant, the hand of a cropper, or the hand of a hired laborer.</p> <p>(6) A planter may avail himself of the protection of the section above cited, in any cash sale of cotton which may be made by him, without reference to whether it was produced by him or acquired from another.</p>

<p>Indictment for carrying concealed weapon. Before Judge Fite. Whitfield superior court. November 13, 1903. ;</p>

<p>■ Conviction óf ‘ manslaughter. ‘ Before Judge Spence. Jasper superior court. December 21, 1903.</p>

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

<p>Indictment for murder. Before Judge Bartlett. Haralson superior court. December 4, 1903.</p>

<p>1. It was not error to refuse a continuance because of the absence of a nonresident witness ; nor because of the illness of the respondent’s brother, the ■ court assuring the respondent that should he receive information that his . brother’s condition demanded his presence, the trial of the case would be suspended.</p> <p>2. An application for leave to file a quo warranto, réciting that at an election for sheriff of a named county, held on a given day, the applicant received a majority of the votes cast, which fact was duly certified by the proper authorities ; that, notwithstanding, his opponent was. given a commission by the Governor of the State, under which he' took possession of the office and was exercising the privileges and receiving the emoluments thereof, without lawful authority and in utter disregard of the rights of the applicant; and that the term of office for which applicant was elected has not expired, etc., is not demurrable on the ground that the application does not set forth a cause of action, or on the ground that the superior court of that county is</p> <p>■ without jurisdiction to entertain the same, or on the ground that the applicant’s remedy was to have contested the election, and the commission issued by the Governor to the respondent is conclusive as to his right to hold the office. The motion to dismiss the proceeding and the motion to vacate the order directing the writ to issue embraced substantially the same matters set up by way of demurrer, and were properly overruled by the court.</p> <p>3. The jury provided for in the Civil Code, § 4880, may be selected by drawing a panel of thirty-six jurors from the box, purging the panel and reducing it to twenty-four, and selecting the jury therefrom in the usual way, each party being allowed six peremptory challenges.</p> <p>4. This court will not review the evidence in a case when it is apparent that there has been no bona fide effort to brief the evidence as required by law; nor will it undertake to pass upon assignments of error requiring a consid- ■ eration of the evidence. '</p>

Petition for injunction. Before Judge Spence. Decatur superior court. February 3, 1904.

<p>Foreclosure of mortgage. Before Judge Evans. Putnam superior court. March 20, 1903.</p>

<p>1. In passing upon exceptions of law to rulings alleged to have been made by an auditor, the court can not look to the exceptions alone to ascertain what those rulings were. The grounds upon which the exceptions are based must be verified by reference to the auditor’s report; and if the report affords no means of verification, the exceptions can not be considered, unless otherwise certified by the auditor.</p> <p>2. The damages found by the auditor were such as were within the contemplation of the parties to the bond sued on, at the time it was executed, and were covered by such bond.</p> <p>3. In a suit upon a supersedeas bond, the question as to what damages were within the contemplation of the parties at the time the bond was executed is one of law, to be determined by the court from the bond itself and the circumstances under which it was given. The testimony of persons who signed the bond as sureties, as to the nature of the damages which they understood the bond would cover, is irrelevant,' and, even though admitted, can not legally affect the construction to be given to the contract by the court.</p> <p>4. The evidence demanded a finding by the auditor in favor of the plaintiff, and, upon the trial in the superior court, the judge did not err in directing the jury to find against exceptions of fact which alleged that the evidence was not sufficient to support such a finding.</p>

<p>Equitable petition. Before Judge Gary. Richmond superior court. June 29,1903.</p>

<p>1. This court reversed the granting of an interlocutory injunction in this case. 118 Ga. 699. It was there held that the defendant in error had neither a grant nor a prescriptive right to use the way threatened to he obstructed. That decision is conclusive as to the law of the case upon these matters.</p> <p>2. Before one can assert a way of necessity over the land of another, every essential requisite to such a right must affirmatively appear. Not only the necessity of ingress to and egress from his own land must exist, but it must further be alleged that there is no other suitable outlet, and a compliance with the constitutional provision as to adequate compensation first having been paid or tendered to the owner of the'land sought to be subjected to the burden of such easement.</p> <p>3. The petition failing to contain these necessary averments, a demurrer specifically making the objections should have been sustained.</p>