Volume 120 — Georgia Reports

<p>Injunction. Before Judge Roan. DeKalb superior court. December 19, 1903.</p>

<p>Equitable petition. Before Judge Gary.. Richmond, superior court.- June 22, 1903.</p> <p>On March 8, 1900, Elvira Marshall presented to Hon. E. L. Brinson, then judge of Richmond superior court, her petition, which sets out that on July 9, 1888, she conveyed a certain lot of land to a loan company to secure a loan, repayable in 120 months, in monthly instalments'of $4.50, the entire amount called for being $540, and the company gave her bond to reconvey on payment; that up to July, 1895, she had repaid $340, but was $33 in arrears, learning which one Blodgett, her grandson, proposed to her to pay off the arrears and lend her $10, if she would transfer the bond to him to secure him for these amounts and anything further he might pay out for her on the loan, she to have the right to redeem the bond., at any time within five years by repaying him any amounts so paid out by him and 8 per cent, interest; that she agreed to this, and on July 3, 1895, to effectuate the same, transferred the bond to him and executed with him an agreement, which recites that he “has purchased from” her, for $10, the' bond, and that if, at any time within five years from date of the agreement, she “ desires to purchase back from him his interest under said bond for titles or to the property itself,” and shall repay the $10 and all paid by him on the loan or property, with 8 per cent, interest, then he “ gives her the option to purchase back; ” that the bond was transferred by a transfer endorsed thereon and absolute on its face, and the contemporaneous agreement was separately drawn; that his conduct in having the papers separately drawn, so that on the face of the bond he seemed absolute owner thereof and could thereby obtain title to the property, was .a fraud upon he.r, for reasons stated; that under the agreement he advanced her $200, balance due on the loan, and on its repayment obtained, on July 10, 1898, a deed to the property from the company, which saw only the absolute transfer of the bond when presented by him, and knew nothing of the contemporaneous agreement; that for some time after obtaining the deed he did not disturb her possession, but finally claimed the property as absolutely his thereunder, and, on March 5, 1900, swore out a dispossessory warrant against her, whereunder a constable was about to eject her; that he was seeking to sell or make other disposition of the property, which under his recorded deed he could do, to some innocent purchaser, to her irreparable injury, he being a mere day laborer and wholly insolvent; that she was not due him more than $300 under their agreement, whereas the property was well worth $600; and that she had no adequate legal remedy in the premises; wherefore she prayed that the warrant be enjoined, and-that Blodgett be enjoined from making any disposition of the property or interfering with her possession or enjoyment thereof, and he decreed to convey it to her on payment of what might be justly due him under their agreement, and for general relief. The court sanctioned the petition and restrained him and the constable, as prayed.</p> <p>On March 24, 1900, Blodgett filed his answer, which admits the transfer and agreement and says “ that she transferred to him said bond for titles and signed said written agreement marked exhibit A, attached to her petition, ás security for all amounts that this defendant should have to pay on her account to said investment company and for the purpose of redeeming the land;” admits that the company had made him a deed, but sets up that he had advanced her more than $200, and alleges that she “is indebted to him in the sum of $462.97, with 8 per cent, interest from March 19th, 1900, an itemized statement of said account being attached,” which account is in the shape of a bill, “Elvira Marshall to Charles Blodgett, Dr.,” contains divers items of debit and a credit of “ Amts, received from Elvira Marshall,” and shows a balance of “total amt. due up to March 19, ’00 — $462.97;” denies insolvency, or fraud, or that he is her grandson, or is contemplating any disposition of the property, or that it is worth $600, averring its value to be about $450 ; and admits swearing out the warrant, but avers it was done because she had failed “ to reimburse him ” and was injuring the property; and prays judgment against her for the $462.97. On April 17th, 1901, defendant filed an amendment to his answer, which strikes from this allegation thereof the words in italics: “ That she transferred to him said bond for titles and signed said written agreement marked exhibit A, atta'ched to her petition, as security for all amounts that this defendant should ham to pay on her account to said investment company and for the purpose of redeeming the land.”</p> <p>On June 1, 1900, Elvira Marshall died, and on April 17, 1901, A. -S. Ulm, then her administrator, filed an amendment to his intestate’s petition. This amendment alleges, (1) that at the time of the agreement of July 3, 1895, Blodgett was well aware that, by the terms of her contract with the loan company, Elvira was entitled to the possession of the land; (2) that the agreement of July 3, 1895, was not an absolute sale of the bond for title, but simply an hypothecation thereof to secure Blodgett for what he might pay out for Elvira théreunder, and the right of possession of the land was still to remain in Elvira; (3) that if Blodgett had, under said agreement, any right to obtain á deed to himself, the deed was simply a security as the bond had been; (4) that from date of the agreement up to February, 1900, Elvira was in continuous, undisturbed possession of the property, living and keeping store in one house thereon and renting out another, but about the latter date, by reason of the infirmities of age and approaching blindness, she became unable to conduct her store, and removed to a daughter’s, intending to rent the store out; that immediately thereafter Blodgett set up a claim that the property was his absolutely, and by such claim prevented her from renting out the store, and intimidated her tenants in the other house from paying her rent, whereby, her daughter being only a poor washerwoman and only able to afford her shelter, she was in a distressed and destitute condition; and while in this state, Blodgett swore out the dispossessory warrant against her, and to obtain means of subsistence and legal aid to defend herself, she was compelled to sell two $40 shares in the loan company, all the property she then had; and that said warrant was sworn out maliciously and without probable cause, Blodgett then well knowing that Elvira was not his tenant and did not owe him $250, or any part thereof, as rent arrear, as he deposed; (5) that at the hearing on the rule nisi Blodgett did not attempt to sustain the warrant, but dismissed the same, whereupon Elvira, on April 9, 1900, rented out the store at $5 per month till October 1, 1900, to a tenant whom she put in possession and from whom she received the rent for April; (6) that, on learning of such renting, on April 10, 1900, Blodgett, by his claim that he owned the property absolutely and by threats of eviction, intimidated her tenants in the store and her other tenants into attorning and paying rent to him, thereby totally depriving Elvira of any income from the property ; (7) that, being thus harassed and deprived of all her property and means of subsistence, Elvira suchumbed to grief and privation, died on June 1, 1900, in utter indigence, and was buried at the public expense; (8) that continuously since May 1, 1900, Blodgett has tortiously held possession of the property and received its rents, of the value of $120 per year; (9) that, by his tortious dispossession and usurpation of rents during Elvira’s lifetime, defendant profited, whereby a right of action to recover damages therefor in this action accrued to her and has survived to her administrator; (10) that, by like retention and usurpation since Elvira’s death, a like right has accrued to her administrator; (11) that the said damages to Elvira are $200 actual, and $200 punitive; -(12) that said damages to her administrator are $200 actual, and $200 punitive; (13) that Blodgett has acted, in the premises, in bad faith, and has been stubbornly litigious, and put Elvira and her administrator to unnecessary trouble and expense, to wit, counsel fee of $60; (14) that plaintiff amends the prayer by praying damages actual, punitive, and expenses of litigation, as above stated; and that the property be decreed property of Elvira’s estate; and if debt be found against, and no damages for, plaintiff, the property be sold, the debt paid, and the residue turned over to plaintiff.</p> <p>On A.pril 18, 1901, defendant filed his demurrer to the petition as amended, on the grounds: (1) no cause for action; (2) amendment sets forth new and distinct cause of action; (3) joinder of causes ex contractu and ex clelicto; (4) no tender; (5) no compliance with agreement of July 3, 1895, alleged; (6) said agreement “shows on its face that it was an option to purchase land and that the time limit therein specified, to wit, July 3d, 1900, has expired” without Elvira or her administrator exercising the same; (7) that “said contract or option was a personal one and was limited to Elvira Marshall only, and was not to be assigned or devised, and her administrator can not exercise the right therein given;” (8) that “said bond for title and said agreement show upon their faces that they were not given as security for a debt, that Marshall owed no debt to Blodgett, but said exhibits show a bargain and sale with a contemporaneous agreement to repurchase in Marshall;” (9) “defendant specially demurs to paragraphs 6, 7, 8, 9, 10, 11, 12, 13, and 14 of said amendment, upon the ground that these counts sound in tort and ask for punitive damages, and that said items of damage are not recoverable in this action, the same being founded on a contract.” On February 21, 1902, the court rendered judgment on the demurrer: “Said grounds of demurrer numbered one,' two, four, five, six, seven, and eight are hereby overruled. The grounds of demurrer numbered two [three?], and nine are'hereby sustained, and all claims for punitive damages alleged in plaintiff’s petition are hereby dismissed and stricken.” Neither party excepted to this judgment. On April 28, 1903, defendant filed an answer to the above-stated amendment of April 17, 1901, which answer is: (1) That he is not prepared to admit the truth of the allegations as contained in paragraphs 1, 2, 3, 4, and 5 of plaintiff’s amended petition, and respectfully prays that he be required to prove each and every one of the same. (2) That paragraphs 6, 7, 8, 9, 10, 11, 12, 13, and" 14 of said petition having been stricken on demurrer, defendant does not feel called upon to answer the same.”</p> <p>On April 29, 1903, the cause came on for trial before Hon. Wm. T. Gary, then judge, and, before the introduction of any testimony, defendant proved to amend his above-stated answer of April 28, 1903, by striking therefrom paragraph 1 and inserting in lieu thereof the following: “(1) That for lack of sufficient information, he is not prepared to admit or deny the truth of the allegations contained in paragraph 1 of the amended petition. (la). That he denies the truth of the allegations contained in paragraphs 2, 3, 4, and 5 of the amended petition.” Plaintiff moved to strike above-stated answer of April 28, 1903, on the grounds, (a) that the same was not a legal answer, inasmuch as it did not admit or deny the allegations of the amendment of April 17th, 1901, to the petition, or state that defendant could neither admit nor deny those allegations for want of sufficient information ; and (b) that said answer was not filed until April 28, 1903. Plaintiff at the same time objected to the amendment offered on April 29, 1903, objecting generally to said amendment, as a whole, on the grounds (a) that there'was nothing to amend by (inasmuch as the answer of April 28, 1903, sought to be amended, was not a legal answer, as it did not admit or deny the allegations of the amendment of April 17, 1901, to the petition, nor state that for lack of sufficient information defendant could neither admit nor deny the same, and was hot filed till April 28, 1903); and (l) that it was not duly verified. And objected specially to paragraph 1 of said proposed amendment, on the ground that it failed to give any reason for, or explanation of, defendant’s ignorance of the matters therein referred to. Defendant then verified said proposed amendment, “that he did not omit the facts set out in the above amendment to the answer for the purpose of delay, and that the answer is not now filed for delay.” The court overruled said motion to strike the answer filed April 28, 1903 ; and overruled the objections to said proposed amendment to said answer, and allowed said amendment. These rulings were excepted to, and error is assigned thereon.</p>

<p>Complaint. Before Judge Eve. City court of Richmond county. August 3, 1903.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. August 20, 1903.</p>

<p>To “ mutilate ” a railroad ticket, within the reasonable meaning of a stipulation on its face that it shall not be good for passage if mutilated In ahy way, it must be deprived of some essential or material part; and suchía ticket is valid, although torn in two pieces), when both pieces are presented to the conductor at the same time, and'it is apparent that they are parts of the / same ticket, that together they form the entire ticket, and that no fraud has been perpetrated upon the railroad company.</p>

<p>Application for temporary alimony. Before Judge Gary. Richmond superior court. January 23, 1904.</p>

<p>Foreclosure of lien. Before Judge Norwood. City court of Savannah. April 18, 1903.</p> <p>Reppard, Snedeker & Company brought an action against Brockett and Campbell, contractors, and Morrison as owner of a house and lot in Savannah, for the foreclosure of a lien for material furnished by the. plaintiffs on the order of the contractors, and alleged to have been used in improving the real estate then owned by Daniels, but sold to Morrison after the lien was recorded. The contractors made no defense,, but Morrison alleged that the improvements had been placed thereon at the instance of a tenant in possession of the property, without the knowledge or consent of Daniels, the then owner, and that neither before nor since the furnishing of the material had the owner ratified the action of the tenant in having the improvements made. The evidence was conflicting as to whether Daniels had notice of the fact that the contract had been made, or that the work was being done, until after the improvements had been completed. The tenant testified that the owner came to the place while the work was being done, knew that it was going on, and made no objection. Daniels testified that the first he knew of the work was when he received notice from plaintiff’s attorney of the claim for a lien ; that he went at once and examined the place, and returned and notified plaintiff’s counsel;,that, he had nothing to do with it; that the tenant was fixing ,bhe place for his own accommodation in extending a partition through the building; that the tenant showed him a receipt and said the work was all done; that the improvements were of no value to the- property, and would have to be torn down; that two windows had been torn out, and it would cost about $300 to put the building back as it was when the tenant had gone into it; that he told the tenant that he expected him to do that; that there was no necessity to repair the store, from the standpoint of repairing; that the tenant divided the storeroom so as to make two stores, and thereby enable him to subrent one of them. Other witnesses testified that the work done had not increased the value of the property, but was rather an expense, as the partition would have to be torn down, and it would be expensive to replace the show window which was destroyed in carrying out the alterations made by the tenant; The judge charged the jury that if the owner did not actuálly or impliedly consent to the making of the improvements, the plaintiffs would be entitled to a judgment against the dontractors, but not to a judgment establishing a lien on the propperty, good as against the owner. The jury found a verdict in accordance with this instruction and against the lien, and the plaintiffs assign error on the court’s refusal to grant a'new trial.</p>

<p>Injunction. Before Judge Gober. Cobb superior court. December 10, 1903.</p> <p>By special act approved August 18, 1903, tbe General Assembly incorporated the Olive Springs School District in Cobb county, providing that the schools therein should not be under the control of the county board of education, but “ shall be controlled by the trustees of said district, who shall report direct to the State School Commissioner.” These trustees were to be elected by the voters of the district, and were to have control of the schools therein, employ teachers, fix their compensation and duties, cause a school census to be taken, and to receive their pro rata of the school fund direct from the State. Alexander and others, alleging themselves to be taxpayers, freeholders, and patrons of Douglas Chapel School, filed an equitable petition against the Olive Springs trustees, alleging that Douglas Chapel Academy was in the new district, that the trustees proposed to abandon it and establish another school far less Convenient for the attendance of petitioners’ children. They prayed for an injunction restraining the new trustees from enforcing the provisions of the new act, and also for a decree declaring the Olive Springs act unconstitutional and void, as being a special law enacted in a case for which provision has been made by an existing general law (Civil Code, §5732), and further, because it was in violation of the uniformity in the public school system required by the constitution. Civil Code, §5906-. The chancellor granted the injunction, and the defendants excepted.</p>

<p>Injunction. Before Judge Butt. Harris superior court. December 5, 1903.</p>

<p>Petition for injunction. Before Judge Spence. Decatur superior court. January 11, 1904.</p>

Garnishment. Before Judge Sparks. City court of Brunswick. July 14, 1903. The Brunswick Grocery Company sued L. M. Russell, and in aid of the suit filed its affidavit and bond for process of garnishment. Summons of garnishment issued and was served on the St. Paul Fire and Marine Insurance .Company.

<p>1. Applications to reinstate cases that have been dismissed on motion of the opposite party are, even when made in due time, addressed to the sound, discretion of the court.</p> <p>2. Whether the case he considered upon the evidence admitted, or in the light of that evidence and the evidence rejected, no reason appears for reversing the judgment refusing to reinstate.</p>

<p>Where in a petition to have obstructions removed from an alleged private way, the petitioner based his alleged right to the relief for which he prayed upon seven years continuous and uninterrupted use of the way, and failed to allege that the land over which the way was claimed was improved land, a demurrer predicated upon such failure was properly sustained.</p>

<p>The plaintiff testified that the conductor knew of his position, and that he did not know that the conductor intended to let the guard-rail down. The case was proved as laid, and it'was error to grant a nonsuit.</p>

Equitable petition. Before Judge Seabrook. Chatham superior court. February 28, 1903. On May 14, 1900, Carrie L. Gould filed a petition which alleged, in substance, as follows: On February 20, 1847, John F. Teynac acquired title to a certain described tract of land, containing twenty-eight acres, in Chatham county, Georgia.

<p>1. Civil Code, § 2298, providing -when there are several connecting railroads under different companies, and goods are intended to be transported over more than one railroad, each company shall be responsible only to its own terminus and until delivery to its connecting road ; that the last company which has received the goods as “ in good order ” shall be responsible to the • consignee for any damage, open or concealed, done to the goods; and that such companies shall settle among themselves the question of ultimate liability, is not, as applied to shipments from beyond the State, repugnant to the clause of the constitution of the United States conferring on Congress the power to regulate commerce among the several States of the Union.</p> <p>2. The statutory remedy afforded by this section can be waived by special contract between the consignor and the initial railroad; and when so waived, the consignee’s remedy is upon the common-law liability of the carriers over whose lines the shipment is made.</p>

<p>Probate of will. Before Judge Barrow. Chatham superior court. June 20, 1903.</p>

<p>Complaint for land. Before Judge Roberts. Telfair superior court. April 21, 1903. 1</p>

<p>Where a merchant ships goods to his broker, without conveying title to him but purely for the purpose of distribution to others, and sends to the broker a bill of lading, indorsed in blank, for the goods the possession of which, by the general custom of trade, is regarded as evidence of the right to dispose of the property for which it is issued, he can not, in an action of trover, recover the goods from a bank which has, in good faith and without notice of the owner’s title, taken the bill of lading as security for a loan of money to the broker on his individual account, and converted the property upon default in the payment of its debt.</p>

<p>Levy and claim. Before Judge Eve. City court of Richmond county. May 22, 1903.</p> <p>On November 8, 1893, J. D. Blaekstone filed a petition with the ordinary of Richmond county, reciting that he was the head of a family consisting of his wife and four children. “ Petitioner prays that the following described property belonging to him, to wit, one bay horse-mule named Rock, value $125, [and cows, hogs, harness, wagons, tools, furniture described] be set aside, under the homestead laws of said State, for the use and benefit of your petitioner and his said family, and that the same be made exempt from levy and sale by the creditors of petitioner, who attaches hereto a correct schedule of all property owned by him,” etc. This petition was signed, and under the signature appears the, following: “Complete schedule of property owned by J. D. Blackstone. One bay horse-mule Rock, $125; one sorrel mare-mule Beck, $125,” with a list of the other property described in the petition. There also appeared the order of publication, several orders of continuance, and, later, affidavits to show service upon the creditors; and, apparently upon a separate paper, the following: “ Georgia, Richmond county. In the matter of the application of J. D. Blackstone for exemption of personalty and setting apart and valuation of homestead under the constitution. It appearing to the court that notice has been given,” etc., it is ordered that said homestead be granted, and that the petition and schedule be approved and handed to the clerk of the superior court to be by him recorded. Jan. 26,1894.” Signed by the ordinary. A mortgage fi. fa. dated December 4, 1902, was levied on the mule Beck, and Blackstone as head of a family filed a claim. The case was submitted to the judge of the city court without a jury," who fojmd the property subject aiid ordered the levy to proceed; whereupon the claimant as head of the homestead estate made a motion for a new trial, and excepts to the court’s refusal to grant the same.</p>

Action for damages. Before Judge Eve. City court of Richmond county. August 19, 1903. Stephen Cone sued the City Council of Augusta for personal injuries.

<p>Action for damages. Before Judge Norwood. City court of Savannah. March 16, 1903.</p> <p>Plaintiff not without fault: Civil Code, § 2323; Ga. B. 83/588; 80/427; 95/301; 103/826. Risk assumed: Ga. B. 103/822; 115/624; 122 U. S. 189 ; 3 S. W.824; 18 S.-W. 151; 11 So. 234; 16 S. W: 413 ; 13 Pac. 98; 2 Am. & Eng. R. Cas. 126 ; 12 Id. 241. Cause of injury, failure to use stick: Ga. B. 86/15,600; 95/299; 100/618; 112/917; 115/332; 118/282; 47 Eed. 205; 63 Fed. 228 ; 15 So. 133; 13 So. 209 ; 20 So. 132; 60 Fed. 378; 27 New Eng. R. 10. Fraud; burden of proof: Civil Code, §§4026, 4029; Ga. B. 97/704; 109/679; 103/767; 114/452; 113/189,361; 76/510,785; 116/431; 7 Am. & Eng. Ene. L. 112; Bish. Con. § 346. Charge to jury: Ga. B. 14/142; 69/441; 114/450; 13 So. 210; 20 So. 67. .</p> <p>Coupling-stick rule, or contract: Civil Code, §§2613, 3642; Ga. B. 111/878; 115/330; 92/77; 86/418; 66/170; 92/493; 95/592; 80/534; 114/357; 18 S. E. 292; 56 N. W. 521; 80 Fed. 488; 74 S. W. 357; 91 U. S. 646 (23 L. ed. 341); 105 Fed. 554; 71 S. W. 560; 68 S. W. 807; 60 S. W. 2; 51 S. W. 580; 21 S. W. 866; 50 Fed. 718; 91 Fed. 224; 89 Ky. 589; 41 Kas. 724; 88 Ya. 648 (37 U. S., L. ed. 151); 157 U. S. 72 (39 L. ed. 624); 152 U. S. 107 (38 L. ed. 373); 170 U. S. 665 (42 L.' ed.' 1188); 18 L. R. A. 845; Bailey’s M. & S. §§ 3371-2, 3469 et seq.; 1 Shear. & Redf. Neg. §§ 202, 207 (b); 65 N. W. 997; 67 N. W. 229; 126 N. Y. 544 (27 N. E. 1042). Fraudulent alteration : Civil Code, § 3702; Ga. B. 36/479; 31/371; 98/472; 103/767; 69/362; 91/821; 96/120; 102/422.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. July 18, 1903.</p> <p>This was an action for damages for personal injuries, in which the plaintiff recovered the verdict. The case is here upon exceptions to the overruling of the defendants’s motion for a new trial. The plaintiff was employed ■ by the defendant as a coupler and switchman. The defendant had a track which ran parallel with the property of the Southern Cotton Oil Company, from which track three or four tracks led into the premises of the Cotton Oil Company. Across one of these tracks the Cotton Oil Company had erected a gate. The gate, while across the defendant’s track, was upon land owned by the Oil Company, and was owned and maintained by it. The gate had a railroad lock upon it, which was put there by the defendant for the purpose of facilitating its access through the gate, and some of its employees were furnished with keys to the lock. The plaintiff was on top of a car in the discharge of his duties as switchman or coupler, which car together with others was being pushed by an engine toward the gate. The plaintiff observed that one wing of the gate was closed, and, according to testimony introduced in his behalf, gave the engineer repeated signals to stop the train, which could have been done had the signals been obeyed. The engineer disregarded the signals, and the train ran into the closed gate, derailing the car on which plaintiff was standing. In attempting to get off the car the plaintiff sustained the injuries complained of. There was some evidence that the wing of the gate which was closed was not supplied with a hook, and the inference from the testimony is that this was the reason for that wing being closed. On this testimony the judge evidently based the charges referred to in th^. opinion.</p>

<p>Under the undisputed evidence in this case, the defendant was a tenant by sufferance, and not at will; and the verdict in his favor in the proceeding to dispossess him as a tenant holding over was unwarranted.</p>

<p>1. A watchman employed by a private corporation to police its own property, who is paid by the employing company, and who is subject to discharge by his employer, is not a municipal officer whose wages are exempt from garnishment, notwithstanding such watchman is clothed with the power to make arrests and is subject to the supervision and control of the police department of the city government.</p> <p>2. A person under a contract of employment contemplating services mainly of work requiring mental skill or business capacity, and involving the exercise, of his intellectual faculties, rather than work the doing of which properly would depend upon a mere physical power to perform ordinary manual labor, is not a laborer whose wages are exempt from process of garnishment.</p> <p>3. There being no conflict in the evidence, the court properly directed a verdict.</p>

<p>It appearing that the question at issue is not so much whether an injunction should have been granted as whether or not the order passed was in proper form, and it not appearing that there was any abuse of discretion on the part of the trial court, the judgment will not be disturbed.</p>

<p>Action of libel. Before Judge Mitchell. Brooks superior court. May 4, 1903.</p> <p>Au action for libel was brought in 1894, in Clinch county, against 110 defendants, some of whom lived in adjoining counties. This suit was dismissed in February, 1898, and renewed in March, 1898, in Brooks county, against all of the defendants, only five of whom were served. The process was directed to the sheriff of Brooks county; the processes attached to the second originals for the defendants residing in Clinch and Lowndes counties were by the clerk also directed to the sheriff of Brooks county. At the May term, 1898, the four non-resident defendants served therewith moved to dismiss for want of legal service. Without any ruling on such motion, the judge at chambers ordered the clerk to amend the process attached to the second originals “by proper direction, and that the same be served in time for the next superior court of Brooks county.” The amendment was made, but the second originals were lost. In January, 1899, during the November adjourned term, copies were established, but so changed as to require the defendants in Lowndes and Clinch to appear at the May term, 1899. Four of the non-residents, defendants in error, were properly served April 2, 1899. 105 of the non-resident defendants were not served. The defendants in error residing in Lowndes and Clinch counties demurred on the grounds, that they were not joint trespassers, and therefore not subject to the jurisdiction of Brooks superior court; that the second original having been improperly directed to the sheriff of Brooks, the court could not cause the same to be amended; that service thereunder was void; that the service actually made not being within six months from the dismissal of the first suit, the case was barred, although service was made in April, 1899, on a petition brought in March, 1898, in renewal of a suit dismissed in February, 1898; and that as 110 defendants were sued and served in the first suit and only 5 were served in the renewal, the case was not against the same defendants. The judge dismissed the case, and Cox excepted.</p> <p>cited Civil Code, §§4949, 5872, 5874, 5043, 4973; 47 Ga. 312; 110 Ga. 223; 111 Ga. 874; 113 Ga.. 415; 114 Ga. 731; 92 Ga. 669; 93 Ga. 742; 86 Ga. 634; 83 Ga. 281; 51 Ga. 203 • 71 Ga. 85: 25 Ga. .714; 94 Ga. 264.</p> <p>cited 100 Ga. 219; 109 Ga. 621; 110 Ga. 527; 50 Ga. 413; 61 Ga. 113; Civil Code, §4939; 97 Ga. 543; 113 Ga. 414; 9 Ga. 297; 47 Ga. 312; 12 Ga. 613; 68 Ga. 446; 95 Ga. 17; 104 Ga. 831; 68 Ga. 448; 32 Ga. 272; 75 Ga. 612; 93 Ga. 579; Bouvier’s L. D. 1138; Walker’s American Law, 580; 26 Am. & Eng. Ene. L. 570.</p>

Complaint for land. Before Judge Barrow. Chatham superior .court. July 11, 1903. By an ordinary warranty deed, imposing no duty and conferring no powers, Ketchum and Hartridge, on September 2,1872, conveyed vacant lot No. 15 Elliott ward,'in the city of Savannah, to Gugie Bourquin as trustee for Polignac Bourquin, a minor.

<p>Complaint. Before Judge Norwood. City court of Savannah. June 18, 1903.</p> <p>Citations by counsel, beside those given in the opinions: Ga. R. 79/125; 80/489, 672; 81/47; 73/807; 58/384; 112/133, 152; ■113/571; 48/349; 55/252 ; 82/785; 100/346, 365; 109/633; 85/737; 61/71; 76/496 ; Civil Code, §§ 5892, 5909, 404; Acts 1901, p. 57.</p>

Indictment for false swearing. Before Judge Mitchell. Lowndes superior court. January 15, 1904. The indictment charged that Thompson “did wilfully, knowingly, absolutely, and falsely swear, and without laying the hand on the holy evangelist of almighty God, and before 0.

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. January 14, 1904.</p>

<p>Conviction of manslaughter. Before Judge Littlejohn. > Sumter.superior court. January, 1904.</p>

<p>Indictment for rape. Before Judge Littlejohn. Sumter superior court. January 15, 1904.</p>

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

<p>Indictment for rape. Before Judge Littlejohn. Sumter superior court. January 15, 1904.</p>

<p>Indictment for forgery. Before Judge Roan. Fulton superior court. January 25, 1904.</p> <p>cited Civil Code, § 3676; 46 Ga. 487; 51 Ga. 535.</p>

<p>Indictment for misdemeanor. Before Judge G-ober. Fannin superior court. January 22, 1904. •</p>

<p>Indictment for larceny. Before Judge Seabrook. Appling superior court. January 9, 1904.</p> <p>Hall with two others was indicted for stealing a bale of cotton from “ under the ginhouse of Johnson, the place where the same had been stored, the said bale of cotton having heen placed and located near the press under said ginhouse.” There was also a count for receiving stolen goods, which, however, was stricken on demurrer. ■ There was ample evidence that the cotton had been taken from under the ginhouse of Johnson, though there was no proof that- it had been taken from near the press. Possession of the property was traced directly to the defendant. In his statement he claimed that he had bought it from one Thomas, and there was some evidence to the same effect from witnesses for the defense. There was a motion for a new trial on the grounds that the verdict was contrary to law and to evidence; that there was no proof of the descriptive averment that the bale had been placed near the press ; and because the court refused a written request to charge: “ If you should find that another person stole the cotton, and afterwards the defendant bought or received it, then you would not be authorized to find the defendant guilty, but should acquit him.”</p>

<p>Accusation of larceny from the house. Before Judge Crisp. City court of Americus. February 1,1904.</p>

<p>Accusation of selling liquor without license. Before Judge Crisp. City court of Americus. February 1, 1904.</p>

<p>Accusation of larceny from the person. Before Judge Longley. City court of LaGrauge. ■ February 11, 1904.</p>

<p>Accusation of cheating and swindling. Before Judge O’Steen. City court of Douglas. February 15, 1904.</p>

<p>Certiorari. Before Judge Fite. Catoosa superior court. February 1, 1904.</p> <p>Ou July 16, 1903, Tucker was fouud guilty of violating the ordinance of Graysville .requiring its citizens to work on the streets. His petition for certiorari was sanctioned on August 5, 1903. On August 18, 1903, the clerk of .Catoosa superior court issued the writ of certiorari, making the same returnable to the next term of the court, to be held on February 4, 1904. This was served on the mayor, January 25, 1904, less than fifteen days before the court met. On “this ground the attorney for the town of Graysville moved to dismiss the certiorari; whereupon counsel for petitioner proved by the clerk, that, two months before court, the attorney for Tucker inquired of him whether the certiorari had been served, and, finding that it had not been attended to, “ he directed me to have it served at once. I then asked him why he did not serve the papers himself; to'which he replied, ‘ Let the sheriff serve them and get his fee therefor.’ I then handed the paper which I thought was the certiorari to the sheriff, and directed him to serve it. He took the paper, which was not the one I intended to give him, but another. Looking through my office about a week before this term of court, I found the certiorari, and at once gave it to the sheriff to serve on the mayor, which he did immediately. Neither the plaintiff in certiorari nor his counsel ever applied for the papers to serve them himself.” From the testimony of the sheriff it appeared that the first paper supposed to be the writ of certiorari had been served six or eight weeks before court, and that the real writ had been served only about a week before court convened. On this showing the judge dismissed the certiorari, to which ruling Tucker excepted.</p>

<p>1. The evidence, though raising a strong suspicion of guilt, was insufficient to warrant a finding that the accused was guilty.</p> <p>2. When a case had been tried before a mayor and appealed to the mayor and aldermen, it was improper for the mayor to state in his capacity of judge, during the progress of the latter trial, that there was a variance in the evidence of a witness who had testified in both trials.</p>

<p>1.- A charge that a reasonable doubt is one that is based “ upon some ground in the testimony or the want of testimony,” and that if the jury have not “ a doubt of that gravity,” they should convict, is not erroneous.</p> <p>2. While the charges on the subject of impeachment may have been in some respects inaccurate, they furnish no reason for reversing the judgment refusing a new trial.</p> <p>3. The allowance of 'leading questions is within the discretion of the court.</p> <p>4. The public is interested in having all trials conducted in an orderly and proper manner, and the presiding judge, as the representative of the public and the exponent of the law, has conferred upon him the high privilege to act of his own motion at any time it may be necessary to preserve the dignity of the court and the rights of the parties.</p> <p>6. The failure of the court to interpose of its own motion in case of impropriety in its presence will not generally be a sufficient reason to set aside a verdict at the instance of a party, when no objection to the impropriety was . made pending the trial, and no ruling in reference thereto was invoked from the court.</p> <p>6. A new trial will not be granted because of improper remarks made by counsel, when it does not distinctly appear from the record that the remarks were -heard by the court, and when no objection was made by the opposite party and no action of the court invoked in reference to the remarks.</p> <p>7. The evidence warranted the verdict, and no reason appears for reversing the judgment refusing a new trial.</p>

<p>Indictments for selling liquor without license. Before Judge Overstreet. City court of Sylvania. February 1, 1904. '</p> <p>There were two cases against Kemp. In the first the unlawful sale of liquor was alleged to have been made to Hub Bazemore, and the evidence showed that Braboy had acted as agent for him in making the purchase from the defendant. In the second case it appeared that Woodberry acted as agent in buying the liquor from Kemp for Hub Bazemore and R. H. Bazemore, to whom the indictment charged the sale had been made. The indictments in both cases were substantially the same, and similar demurrers were interposed to each. The motions for new trial raised the same legal questions. The facts set out in the opinion were those of the first case.</p>

<p>Indictment for unlawful sale of liquor. Before Judge Henderson. City court of Yienna. February 19, 1904.</p>

<p>Indictment for murder. Before Judge Atkinson. Motion for new trial before Judge Freeman. Carroll superior court. January 30, 1904.</p>

<p>1. In a case where the testimony of all the eye-witnesses to the occurrence makes a clear case of murder, and the theory of the accused is that the killing was either in self-defense, or under the fears of a reasonable man that his life was in danger, Penal Code, §72, is inapplicable, and a refusal to charge the law contained in that section is not cause for a new trial.</p> <p>2. In making his statement to the jury as provided for by statute, the prisoner, not being sworn as a Witness, nor subject to cross-examination, nor restricted by the rules of evidence, can not lay the foundation for introducing in his favor evidence that would otherwise be inadmissible. Hence evidence of uncommunicated threats will not be received, nor, in a murder case, testimony as to the character of the deceased for violence, unless such evidence is relevant and competent unaided by the contents of the statement.</p> <p>3. The failure of the judge in a murder case to charge the jury the provisions of the Penal Code, § 76, will not be reason for granting a new trial, when it clearly appears from the charge that the jury were informed that if they • found the contentions of the accused to be true, they must return a verdict of not guilty.</p> <p>4. The evidence warranted the verdict, and no reason appears for a reversal of the judgment refusing a new trial.</p>

<p>Conviction of shooting at another. Before Judge Barrow. Motion for new trial before Judge Cann. Chatham superior court. February 6, 1904.</p>

<p>Indictment for larceny from the house. Before Judge Crisp. City court of Americus. February 1,1904.</p>

<p>1. An assignment of error presented in a motion for a new trial, but not referred to in the brief of counsel for the plaintiff in error or argued before this court, is to be treated as having been abandoned.</p> <p>2. The newly discovered evidence relied on by the accused was merely cumulative, and not of such character as to likely affect the result should another trial be had.</p> <p>3. The verdict of the jury, having met with the approval of the presiding judge, and being amply supported by evidence, should be allowed to stand.</p>

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

<p>Evidence that a fluid sold by the accused was red in cólor, looked like liquor, burnt like liquor, and had an effect like cheap whisky or beer, is sufficient to authorize his conviction under an indictment charging him with having sold spirituous and malt liquors and intoxicating bitters without having registered as a dealer therein ; it appearing that the accused had not so registered-</p>

<p>Indictment for bigamy. Before Judge Seabrook. Chatham superior court. February 19, 1904.</p>

<p>Indictment for furnishing cigarettes to minor. Before Judge Falligant. Motion for new trial overruled by Judge Seabrook. Chatham superior court. January 30, 19041</p>

<p>Accusation of unlawfully selling liquor. Before Judge Prior. City court of Hall county. February 20, 1904.</p>

<p>Indictment for misdemeanor. Before Judge Kimsey. "Dawson superior court. March 8, 1904.</p>

<p>Indictment for larceny.- Before Judge Kimsey. Rabun superior court. March 10, 1904. ,</p> <p>To the facts stated in the opinion it may be added that the circumstances of guilt shown by the evidence were as follows: Beck lost a hog of a given description. The accused owned no hog, so far as was known. Upon being visited by two persons on an evening, he induced one of them to go with him about 150 yards from his house, where he took from the top of a fallen tree a recently killed hog, the hair, weight, and apparent age of which corresponded with those of Beck’s lost hog. The killed hog was carried to the house of the accused, and was there cleaned, cut up, and salted by him and his visitors, at night. He asked one of the visitors to burn the trough they had used in cleaning. He said the hog was his uncle’s, and that he had killed it accidentally in shooting at another hog that was not marked. The uncle did not appear at the trial, so far as the record shows.</p>

Indictment for larceny from the house. Before Judge Crisp, City court of Americus. February 11, 1904. Brady was charged with larceny from the house. On the call o'f the case he made a perfect showing for a continuance on the ground of the absence of a witness John Fletcher. From a note hy the trial judge it appears that at the August term, 1903, the case was continued on account of the absence of Fletcher, a witness Lizzie Osborne being then and there in the court-room.

<p>Indictment for using profane language in female’s presence. Before Judge Crisp. City court of Amerieus. February 5,1904.</p>

<p>Indictment for forgery. Before Judge Roan; Eulton superior court. March 5, 1904.</p>

<p>J. kept a house for the daily congregation of a large number of people to make bets on horse-races run in other States. The system was, that the person desiring to bet made application for a bet on a certain horse at the posted odds, handing his application and the money to be bet to J. or his agent; t this application was then telegraphed to R. in a foreign State for acceptance or rejection; if the bet was lost, the money was deposited by J. to the credit of R., while if it was won, J. paid the winnings (less 10 cents commission) to the bettor out of funds kept with him for that purpose by R. Held, (1) that J. was guilty, under the Penal Code, § 398, of keeping and maintaining a gaming-house ; and (2) that, even if the bets were accepted and consume mated in another State, the money was hazarded in the house kept by J.'</p>

<p>1. In a case of assault with intent to murder, the intention of the accused is always a matter for determination by the jury j and where the evidence is such as to authorize a finding that the accused, while not entirely justifiable, was not guilty as charged in the indictment, it is not error for the judge to give in charge to the jury the law as to the statutory offense of shooting at another.</p> <p>2. A juror is not disqualified by reason of the fact that his wife is a second cousin of the wife of one of the parties at interest.</p> <p>3. On the trial of an indictment for assault with intent to murder, where it appears that at a certain stage of the difficulty between the accused and the prosecutor the accused lowered his gun from his shoulder and rested it on his hip, it is not permissible, in order to prove that he intended to shoot from the latter position, to shbw by a witness that “ a lot of good shots shoot their guns from their hips. I shoot doves and quail myself, and know a lot of good shots shoot that way.” The admission of such evidence is error requiring the grant oE a new trial.</p> <p>4. In such a case it is error to unduly stress the contentions of the State, at the same time ignoring the contentions of the accused.</p>

<p>Indictment for burglary. Before Judge Roan. Fulton superior court. March 5, 1904.</p>

<p>1. One is “engaged in the business of posting bills and distributing advertisements ’ ’ who performs these services for others and for hire.</p> <p>2. But one who has been employed as a salesman can not be said to be engaged in the “ business” of posting bills and distributing advertisements, who does so solely as an incident to the selling for which he has been employed, and only for the purpose of advertising the wares of his principal.</p>

<p>Accusation of cheating and swindling. Before Judge Toombs. City court of Washington. March 14, 1904.</p>

<p>Indictment for murder. Before Judge Spence. Decatur superior court. February 16, 1904.</p>

<p>Motion for new trial. Before Judge Hobbs. City court of Albany. • March 14, 1904.</p>

<p>Accusation of gaming. Before Judge Hammond. City court of Griffin. March 17, 1904.</p>

<p>Certiorari. Before Judge Freeman. Coweta superior, court. March 18, 1904.</p>

<p>Indictment for unlawfully selling liquor. Before Judge Proffitt. City court of Elberton. March 5, 1904.-</p>

<p>An indictment charging the accused with willfully and maliciously cutting and destroying a bridge alleged to be the private property of four persons is not supported by proof showing that only one of the parties named had any interest in the bridge, and that he claimed only an easement therein.</p>

Indictment for maintaining gaming-house. Before Judge Cann. Chatham superior court. February 8, 1904. Bryan was indicted for keeping and maintaining a gaming-house. From the evidence offered by the' State it appeared that Bryan had a saloon and restaurant. Up stairs there was a room in which was a faro-bank, roulette-wheel and crap-table. Bryan’s name was on the door and place of business as proprietor of the bar and restaurant.

<p>Indictment for gaming. Before Judge Hamilton. City court of Floyd county. March 22,1904.</p>

<p>A man accused of incestuous adultery can not be convicted upon the uncorroborated testimony of the woman with whom he is alleged to have committed the offense.</p>

<p>Indictment for murder. Before Judge Butt. Stewart superior court. March 5, 1904.</p>

<p>Accusation of malicious mischief. Before Judge Faircloth. City court of Wrightsville. February 24, 1904.</p>

<p>Indictment for murder. Before Judge Butt. Stewart superior court. March 5, 1904.</p>

<p>The charges complained of, when read in connection with the context, could not have been understood by the jury as instructing them that the master was an insurer, or bound to furnish or keep an absolutely safe place in which the servant was. to work. There was evidence sufficient to support the verdict for the plaintiff.</p>

<p>Attachment. Before Judge Norwood. City court of Savannah. January 5, 1904.</p>

<p>Habeas corpus. Before Judge Foute. City court of Carters-ville. February 23, 1904.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. August 13, 1903.</p> <p>A circular rip-saw revolved in a groove in the center of an iron table. Timber .was fed to it over a roller in front of the machine, and by means of a feeder — a small round wheel, somewhat similar to a saw, suspended over the rip-saw. The plaintiff, in the course of his work for the defendant, had just put a piece of timber through, and stooped to get another piece. As he rose' a piece of the board he had put through broke off, was hurled back, and struck him in the mouth, inflicting very severe injuries. He did not know that such a thing had ever before happened, and previously knew nothing of any liability of it to happen. He was no machinist, but he thought a board could have been thrown up in front of the saw, to guard and prevent the timber from flying back. This machine had no such guard. The injuries occurred about a month and a half after he entered the defendant’s employment. He had previously worked as a weaver on looms in a cotton mill, for three or four years. His first work for the defendant was on a box-planer, a small machine with three knives, very simple to run; then on “ cover circular saws,” unlike the rip-saw on which he was hurt. He had run this rip-saw about four days when hurt. He had not before worked on machinery having saws. He was put to work on this saw by Pierpoint, the general foreman' and supervisor of the defendant’s mill, who put the hands to work. Pierpoint set the saw for him, and showed him how to run it. He gave no instruction in regard to any danger in running it. The plaintiff did not know whether such machines were dangerous or not. He could not say whether there was any reason for the defendant to suppose the accident would happen or not. There was nothing to put him on notice at any rate. An experienced man would have known of the danger. In pushing the board over the roller his duty did not require him to see that the board had gone entirely through the saw before he attempted to do anything else; but as soon as the board got over the roller he fed another to the saw. This was necessary to keep the machine running. The board would be - carried through the saw without assistance when it got over the roller. He could not say what caused the board to break, or whether or not anything was the matter with the machine. It seemed to be in good order; but if it were not, he would not have known, as he was green.</p>

<p>Equitable petition. Before Judge Barrow. Chatham superior court. November 16, 1903.</p>

<p>1. If with a clear chance to avoid the consequences of defendant’s negligence or breach of duty the plaintiff voluntarily assumes the risk occasioned thereby, such conduct on his part is not merely contributory negligence, lessening the amount of damages, but a failure to avoid danger, defeating the right to recover.</p> <p>2. The fact that in stepping from a moving train the plaintiff may not have been guilty of negligence defeating his right to recover does not entitle him to a verdict, unless it also appears that the carrier was at the time guilty of negligence which was the proximate cause o'f the plaintiff’s injury.</p> <p>S. The court below did not err in sustaining the demurrer, it appearing from the allegations in the petition that the plaintiff was not injured as the result of any negligence or breach of duty on the part of the carrier, but with full opportunity to escape the consequences of any prior acts complained of, and with a clear chance to avoid the danger, he voluntarily assumed the risk attendant upon leaving a moving car at night beyond the station, at a point where there was no implied invitation to alight.</p>

<p>Complaint. Before Judge Norwood. City court of Savannah. December 1, 1903.</p>

<p>Certiorari. Before Judge Seabrook. Liberty superior court. November 19, 1903.</p>

<p>1. Where one paragraph in a petition contains the allegation that “a copy of said protested check is hereto attached, marked Exhibit A, to which reference is prayed,” the admission in the answer that the paragraph is true is to he treated as an admission that the exhibit is a true copy of the original check with all entries thereon.</p> <p>2. The exhibit attached to the petition showed that the check had been properly indorsed for payment when presented.</p> <p>3. The plaintiff proved his ease as laid, and it was error to grant a nonsuit.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. January 16, 1904.</p>

<p>Levy and claim. Before Judge Cann. Chatham superior court. February 6, 1904.</p>

<p>Indictment for larceny after trust. Before Judge Cann. Chat-ham superior court. January 28, 1904.</p>

<p>1. Answers to suits in the city court of Savannah must he filed on or before the first day of the return term.</p> <p>2. Where a demurrer and answer to a petition are filed too late, but, instead of moving to strike because not filed in time, the plaintiff invokes the judgment of the court on the demurrer and amends^ the petition to conform to its judgment, it is too late at a subsequent term of the court to move to strike the demurrer and answer because not filed in time.</p> <p>3. A material amendment to a petition opens the case, if in default, for answer by the defendant.</p> <p>'1. A forfeiture of a.contract of insurance can not be waived by a local agent of an insurance company, without express authority from the governing officials of the insurance company.</p>

Petition for injunction. Before Judge Bartlett. Douglas superior court. January 2, 1904.

<p>1. Employees in the service of and subject to the same general control and direction of a common master, and whose labor conduces to the same general . purpose, are fellow-servants, although they may be employed in different departments of duty, and so far removed from each other as that one can in no ■ degree control or influence the conduct of the other. Davis v. Muscogee Mfg. Co., 106 Ga. 126, Kerr v. Crown Cotton Mills, 105 Ga. 510, Brush Mectric Light Co. v. Wells, 110 Ga. 192, followed.</p> <p>2. It is the'duty of a master to furnish his employee with a safe place to work; and where .the employee is injured in consequence of a breach of this duty, he may recover, even though the negligence of a fellow-servant may have contributed to the injury.</p> <p>3. While the allegations of the original petition with reference to the matters referred to in the note just preceding were somewhat vague and indefinite, there was enough in the petition to amend by. The amendment offered was properly allowed, and the petition as amended set forth a cause of action.</p>

<p>Equitable petition. Before Judge Mitchell. Brooks superior' court. June 18, 1903.</p>

<p>Condemnation — appeal. Before Judge Seabrook. Chatham superior'court. February 14, 1903.</p>

<p>Action for damages. Before Judge Hodges. City court of Macon. June 25, 1903.</p>

Action for damages. Before Judge Roberts. Wilcox superior court. May 15, 1903. The action was for trespass by cutting timber on a lot to which the plaintiffs claimed title as heirs at law, and by purchase from heirs at law, of Gideon T. Braddy.

<p>Indictment for murder, court. March 19, 1904. Before Judge Roan. Fulton superior</p>

Indictment for murder. Before Judge Butt. Stewart superior court. March 5, 1904. Alice Owens and her two sons, Milton and Reece- Owens, were jointly indicted for the murder of her husband, their father, Shep Owens. The defendants severed.

<p>Indictment for murder. Before Judge Littlejohn. Dooly superior court. March 21, 1904.</p>

<p>Where in a criminal casé the accused moved for a new trial on the day that he was convicted, and the motion was set for a hearing within thirty days from the date of the trial and before the end of the term, the accused had until the actual hearing of the motion to prepare, have approved, and file a brief of the evidence introduced on the trial.</p>

<p>1. A party can not obtain a reversal for an error which he has invited, as by a request to charge, or by formal admission that a given principle is not involved in the case.</p> <p>2. But the fact that one of defendant’s counsel in arguing to the jury insisted that there was no manslaughter in the case, but that it was a case of self-defense, and another of his counsel contended that the defendant was justifiable because of the invasion of his house, did not deprive the defendant of the right to a charge on the subject of manslaughter, if it was otherwise demanded by the evidence.</p> <p>S. The evidence which warranted the charge on the subject of self-defense also called for an instruction on the law of manslaughter as contained in the Penal Code, § 65.</p>

<p>Indictment for gaming. Before Judge. Longley. City court of LaGrange. April 1, 1904.</p>

<p>Indictment for murder. Before Judge Parker. Charlton superior court. April 5, 1904.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. April 14, 1904.</p>

<p>Accusation of misdemeanor. Before Judge Griffin. City court of Valdosta. April 15, 1904. •</p>

Action for damages. Before Judge Hodges. City court of Macon. September 15, 1903. The suit was on account of injuries received in a collision of an electric street-car with a wagon in which the plaintiff was riding. He was nonsuited, and he excepted. At the trial there was testimony showing the following: The plaintiff got in his wagon at the sidewalk of a street along which ran three parallel sets of street-car tracks.

<p>Where in an action for damages a verdict and judgment are rendered against the defendant, the case is brought to this court, where the judgment of the court below is reversed, and on another hearing the plaintiff again obtains a verdict, the defendant is entitled to set off against that verdict no other costs than those paid by him which were actually necessary to bring the case to this court and obtain a reversal of the erroneous judgment rendered at the first trial.</p>

<p>Bail-trover. Before Judge Hodges. City court of Macon. October 17, 1903.</p>

<p>Motion to set aside judgment. Before Judge Hodges. City court of Macon. October 17, 1903.</p> <p>On August 23, 1902, Jones made a garnishment affidavit and bond, based on a suit brought by him in the city court of Macon. The following entry appears thereon: “ Georgia, Bibb County. I have this day served summons of garnishment, issued on the above and preceding affidavit and bond, . . on Bibb Brick Co.,. by handing the same to John T. Moore, its secretary and treasurer, at 6:03 o’clock p.. m., August 23rd, 1902. . . . This Aug. 25th, 1902. James Motes, Deputy Sheriff.” On June 11,1903, a verdict was rendered in favor of the plaintiff, in the suit on which the garnishment was based, and on September 15, 1903, judgment nunc pro tunc was entered thereon. Afterwards, on the date last mentioned, the city court rendered a judgment against the garnishee, in which it was recited that it appeared that "summons of garnishment during the pendency of said suit was duly issued and served upon the Bibb Brick Company as garnishee, on the 25th day of August, 1902, . . returnable to the December term, 1902, of this court,” and that the Bibb Brick Company had not made any answer to the summons served upon it. A petition to open and set aside the judgment against the garnishee was filed at the term at which the judgment was rendered. The petition alleged that in August, 1903 (?), James Motes, constable for Gerdine, justice of the peace, served John T. Moore, secretary and treasurer of the petitioner, with a summons of garnishment in said case; that Moore, acting for the petitioner, then and there stated to Motes that the petitioner had nothing subject to garnishment, and would not become indebted to the defendants; whereupon Motes stated that, this being so, the petitioner would have no trouble about the garnishment, and that he would notify the petitioner when the case came'up; that the petitioner believed that the summons was returnable to the justice’s court, and not to the city court; that the summons was misplaced and could not be found, and the petitioner might be mistaken as to this; that, relying on the promise of Motes that he would notify the petitioner whenever it became necessary to answer, and being in ignorance of the law requiring it to answer when it was not indebted and had nothing belonging to the defendants, the petitioner failed to answer in the city court; that at the date of the service of the summons of garnishment it had no money, property, goods, or effects of the defendant in its hands; that no property, money, goods, or effects of the defendants came into its hands from the date of the service of said summons up to the date of “ this its answer thereto; ” that it did not owe defendants any money at the date of the service of the summons, and had not become indebted to them in any amount from the date of the service up to this date; that it would be a great hardship and contrary to justice and equity to compel the petitioner to pay the judgment; that it failed to answer the garnishment from sheer ignorance of the law and of its duty, and relying on the promise of Motes, and in ignorance of the fact that any garnishment was pending in the city court; and that it did not hear of the case from the time the summons was served on it until after the judgment against it had been taken. It tendered this as its answer to the garnishment. The petition, was verified by John T. Moore, October 5, 1903, and was filed the same day. On October 17, 1903, the plaintiff filed a demurrer to the petition. On the same day the petitoner filed an amendment to the petition, and alleged therein, as additional grounds for setting aside the judgment, that the return of the officer did not show that the garnishment was served on one who was the agent in charge of the office or business of the company; “ that the said summons . . was not served upon the proper officer of your petitioner, because the saíne was served upon the secretary and treasurer of said company and not upon its president, nor upon the other and proper officer;” and that the name of the garnishee is “The Bibb Brick Company,” and not “ Bibb Brick Company.” The amendment was verified by J. N. Neel, whose agency does not appear. The court sustained the petition, and ordered that the judgment against the garnishee be set aside, and that it have leave to file its answer to the garnishment. The plaintiff excepted.</p> <p>cited Civil Code, § 3978 ; Ga. Bep. 103/564; 108/249; 110/656; 62/350; 82/605; 97/747; 111/722; 32/115; 43 Fed. 181; 18 Enc. PL & Pr. 916-18, 927, 965, 968.</p> <p>cited Civil Code, §4710; Ga. Bep. 113/160 ; 99/623 ; 90/42; 103/564; 117/521; 66/300; 82/607;50/575; 108/249.</p>

Action on insurance policy. Before Judge Hodges. City court of Macon. November 24, 1903. The action was on a “benefit certificate” insuring the life of Arthur L. Wood. The defense was that he had warranted as true certain statements made by him, as the basis of the contract of insurance, which were untrue.

<p>Action for damages. Before Judge Felton. Bibb superior court. November 12, 1903.</p>

<p>A railroad company is not bound to receive and transport passengers on. a train, consisting of an engine and a freight-ear, made up for the purpose of meeting an emergency caused by a wreck on its line; and one who, with knowledge of the circumstances, by permission merely of the conductor takes passage on such a train, can not recover damages from the railroad company on account of its refusal to give him return passage on the same train, it appearing that such refusal was not capricious or wanton, but was due entirely to the existence of the emergency referred to.</p>

<p>Action for damages. Before Judge Lewis. Hancock superior court. October 5, 1903.</p>

<p>Injunction. Before Judge Holden. Madison superior court. February 29, 1904.</p>

<p>Complaint — appeal. Before Judge Eite. Cobb superior court. December 11, 1903.</p>

<p>• Equitable pétition. Before Judge Bartlett. Haralson superior court. December 17, 1903.</p>

<p>Certiorari. Before Judge Heury. Chattooga superior courts October 31, 1903.</p>

<p>Action for damages. Before Judge Barrow. Chatham superior court. December 5, 1903.</p>

Action for damages. Before Judge Hodges. City court of Macon. October 3, 1903. J. H. Little sued the Southern Railway Company for injuries alleged to have been received from a collision between two switch-engines, one of which was operated by him as engineer.

<p>Trover. • Before Judge Hodges. City court of Macon. January 3.6, 1904.</p> <p>This was an action of trover to recover thirty electric railway poles. In 1901 Sparks, the president of the defendant company, wrote to plaintiff a letter stating that “you can ship me 125 poles at the prices named in your favor of the 25th. I want black cypress. Get me good ones.” What these prices were does not distinctly appear. 125 poles were shipped by plaintiff to defendant in compliance with this order. On March 4, 1902, Sparks wrote plaintiff, inclosing a check for $100, and stating that he would use as many of the poles as possible, and the balance of the purchase-price would be sent later. The defendant afterwards declined to pay for thirty of the poles, on the ground that they were not of the character ordered. The present action is brought to recover these poles. On September 20, plaintiff wrote to Sparks inquiring as to the number of poles used, and asking for a statement and for payment of any balance which might be due him. Sparks answered this letter, stating that there was no balance due plaintiff. On November 27, Sparks wrote plaintiff, inclosing a statement showing a balance in favor of plaintiff of $19.25, a check for which amount was inclosed. This statement charged plaintiff with the $100 previously paid, freight $33, “ 30 poles condemned at $1.50, $45,” draft inclosed, $19.25. Nothing further was done by plaintiff until in December, 1902, when he employed counsel to recover the thirty poles for which the defendant had not paid him. His counsel wrote to Sparks making demand on him for the thirty poles. Sparks replied to this letter, stating that he could not return the poles, because he had used them for fence-posts, and that he was willing to pay whatever they were worth for that purpose. On the trial the plaintiff testified that the 125 poles were shipped, defendant “on approval.” The court overruled a demurrer to defendant’s answer, and granted a nonsuit. To both of these judgments the plaintiff excepted.</p>

<p>Injunction. Before Judge Felton. Bibb superior court. February 11, 1904.</p> <p>The petition of the Brothers and Sisters of the Evening Star Society alleged, in brief, that it was an incorporated mutual benefit society, with a department for children, under the name of the Sons and Daughters of the Evening Star Society, the officers of which from the time of its establishment were elected by and were under the direction and control of the plaintiff; that defendants Lane, Appling, and Jenkins were elected. officers, of that department for the year 1903, Lane as president and the others as secretary and treasurer respectively, and recognized the plaintiff’s control until recently, when Lane, who had been suspended for misconduct, attempted to disrupt the society, and, associating with him Appling, Jenkins, and other defendants, and conspiring with them for that purpose, applied to the superior court for a charter under the name of the Sons and Daughters of the Evening Star Society; that the sole object of Lane and his associates was to appropriate to themselves the name adopted by the original society for its children’s department, and to destroy it and get possession of the money which the society had permitted to be deposited in bank to the credit of that department; and that the plaintiff had deposed these officers and elected certain others in their stead, who made demand on them for the books, papers, money, and other property of that department, in their possession, which demand was refused. It was prayed that Lane, Appling, and Jenkins be enjoined from drawing from certain banks, named as defendants, money deposited to the credit of the Sons and Daughters of the Evening Star Society, and that the banks be enjoined from paying it out on their checks; that this money be declared to be the money of the plaintiff; that the banks be required to pay it on checks of the officers elected to succeed Lane, Appling, and Jenkins; that the defendants be enjoined from withholding and be required to return to these officers the books, papers, and other property in their possession, obtained by reason of being officers of that department; that the defendants be enjoined from proceeding to obtain a charter under the name of the Sons and Daughters of the Evening Star Society, and from interfering with the affairs of the plaintiff, or with those of said children’s department; and for general relief. By amendment it was alleged that Lane, Appling, and Jenkins, as officers of the Sons and Daughters of the Evening Star Society, had drawn from bank, without authority and wrongfully, the money deposited in bank to the credit of that society; and it was prayed that they be required to account to the plaintiff for it and to restore it to the bank to the credit of the plaintiff, or to that of the said children’s department. It was also alleged, by amendment, that since the filing of the petition certain persons named were regularly elected president, vice-president, secretary, and treasurer of the said children’s department for the year 1904, at an election held by the plaintiff, pursuant to its charter and by-laws; and it prayed that Lane, Appling, and Jenkins be required to turn over to them the money, books, and other property mentioned in the petition.</p> <p>The defendants demurred on the grounds, that no cause of action was set forth; that there' was no equity in the petition; that there was an adequate remedy at law; that the Sons and Daughters of the Evening Star Society was not made a party ; and that the granting of the extraordinary relief prayed for would be a violation of the prohibition of law against the granting of a mandatory injunction. In their answer they admitted that the officers of the Sons and Daughters of the Evening Star Society had been elected by the Brothers and Sisters of the Evening Star Society, and that the Sons and Daughters of the Evening Star Society had always jnade quarterly reports to the Brothers and Sisters of the Evening Star Society, but they insisted that the election of officers by the plaintiff and the making of these reports was purely a voluntary matter, and was not by reason of any requirement of the constitution or by-laws of the plaintiff; that the Sons and Daughters of the Evening Star Society was a voluntary association, separate and distinct from the plaintiff, and that the plaintiff had no authority or control over it, and no interest in the money in question.</p> <p>The court, after hearing evidence, passed an order providing for an election to be held by the members of the Brothers and Sisters of the Evening Star Society on a specified date, in which the defendants who were members of that society should be entitled to</p> <p>participate; and requiring the defendants, Lane, Appling, and Jenkins, to turn over to the officers to be elected at that meeting the money referred to in the petition; restraining the defendants from further prosecuting their application for a charter under the name of the Sons and Daughters of the Evening Star Society, and requiring the banks in which the money referred to was deposited to pay the money to the treasurer to be elected at the meeting mentioned in the order. Defendants excepted.</p>

<p>1. The answer of the defendant was not subject to demurrer upon the ground that it attempted “ to set up the plea of usury and [contained] no allegation of fact which, if proved, would take the contract sued on out of that class of contracts of building associations recognized by the law as not being usurious.”</p> <p>2. Declarations of an agent as to business transacted by him, in order to be admissible against his principal, must have been made by him while representing the principal'in the transaction in controversy, and must also have been a part of the negotiation, and constituting the res gest®.</p> <p>3. Evidence that a letter was written to a given person does not authorize a presumption that he received it, unless the evidence also shows that such letter was properly addressed, duly stamped, and mailed.</p> <p>4. It is erroneous to admit in evidence, over proper objection by the party against whom it is offered, an advertisement published in a newspaper by a person, while acting as his agent in a matter to which it is claimed such advertisement referred, when it appears that such person made the publication in his individual capacity, and there is no evidence to show that the party against whom it is offered authorized the publication, or, by subsequent ratification, adopted it as his own.</p>

Action on contract. Before Judge Lewis. Warren superior court. October 6, 1903. The petition of Joseph Raley against the Mayor and Commissioners of the Town of Warrenton alleged: In pursuance of the authority conferred by the charter of the town the defendants created the office of deputy or night marshal, in additition to the office of marshal.

<p>No disputed issue of fact was raised by the petition for certiorari, and its dismissal on the ground stated in the récord was therefore erroneous.</p>

<p>Certiorari. Before Judge Reagan. Elbert superior court. September 18, 1903.</p>

<p>Equitable petition. Before Judge Holden. Hart superior court. January 5, 1903.</p>

<p>Bail-trover. Before Judge Toombs. City court of Washington. October 19, 1903.</p> <p>The action was dismissed on demurrer on the ground that the description of the property sued for (which is set out in the headnote) was not sufficient to identify the property.</p>

<p>Action for damages. Before Judge Reagan. Elbert superior court. November 16, 1903.</p>

<p>Money rule. Before Judge Toombs. City court of Washington. December 16, 1903.</p> <p>Ou March 11, Í899, Franklin obtained a judgment against Moss in a justice’s court in Oglethorpe county, and on April 4, 1899, the execution thereon was entered on the general execution docket of that county. Subsequently Moss moved to Wilkes county, and in July, 1903, gave to Armor a mortgage on his crop of that year in Wilkes county, for supplies to make the crop. The mortgage was filed for record November 13, 1903, after the execution in favor of Franklin had been levied on corn which was “a part of said crop, but matured and gathered.” The corn was sold under that execution, and the proceeds were claimed under an execution placed in the sheriff’s hands, which had been issued on the foreclosure of the mortgage in favor of Armor. The foregoing facts appeared from an agreed statement of facts, 6n a rule against the sheriff. The court directed the sheriff to pay over the fund to the mortgagee. Franklin excepted, on the ground that the failure to file the mortgage for record before the levy made its lien inferior to that of his execution.</p>

<p>Eule. Before Judge Holden. .Wilkes superior court. December 15, 1903.</p>

<p>Equitable petition. Before Judge Evans. Taliaferro superior court. December 26, 1903.</p>

<p>1. In its principal elements and characteristics, this case is ruled by Merck v. American Freehold Oo., 79 Ga. 213.</p> <p>2. The mere fact that a lender of money deposited in bank a fund which should be subject to the check of a loan broker for the amount of a loan only in the event that the lender, after an examination by himself of the application of the prospective borrower and' the security offered, should approve the same, and for himself decide to make the loan, did not render the broker the agent of the lender for the purpose of making loans.</p> <p>3. A stenographic report of the testimony alleged to have been given by a witness on a former trial was not competent evidence without proof of its genuineness and correctness.</p> <p>4. If a ruling were proper, it will be sustained, though a wrong reason were given therefor.</p>

<p>Levy and claim. Before Judge Holden. Wilkes superior court. December 29, 1903.</p> <p>An execution in favor of Shumate, administrator, against Barnett, as administrator of Isaac McLendon, was levied upon a tract of land, and a claim thereto was interposed by Samuel McLendon. The case was submitted to the judge upon an agreed statement of facts, and he rendered a judgment finding the property not subject, and to this judgment the plaintiff in execution excepted. The facts disclosed by the record are as follows: In 1854 Isaac McLendon became the owner of a tract of land, which embraces the land now in controversy. On January 24, 1876, he conveyed to the Bank of Washington, by a security deed, the land in dispute. On April 29, 1876, Hill obtained judgment against Isaac McLendon,-and the execution issued thereon was levied on the land,in controversy on May 26, 1877, and on July 3, 1877, the land was sold to Sims & Truitt for $100. On these dates the debt due the bank of Washington was ’Still unpaid, and the sheriff’s deed recited that the property was sold “subject to a 70 acres homestead in the same, and also subject to an incumbrance in favor of the Bank of Washington on the same.” On January 5,1877, Isaac McLendon applied to the ordinary for a homestead, under the provisions of the constitution of 1868, in the land in controversy, and the homestead thus applied for was finally set apart pn November 4, 1878. On April 4, 1878, Sims & Truitt conveyed the land to Mary McLendon, wife of Isaac McLendon, the deed reciting that the grantors held the land subject to the homestead and incumbrance above referred to, and that the conveyance was made subject thereto. In 1877 the Bank of Washington obtained judgment against Isaac McLendon, and on January 4,1881, in consideration of $78.19, transferred the execution issued thereon to Sims & Truitt, who, on January 24, 1881, transferred the same to Mary McLendon. On this execution appear the following' payments made by Mary McLendon : November 30, 1880, $150 ; December 30, 1880, $135. The security deed made by Isaac McLendon to the bank was delivered to Sims & Truitt, and by them delivered to Mary McLendon, at the time of the respective transfers, and was in possession of Mary. McLendon at the time of her death, in 1901. No deed of reconveyance was ever made by the bank to Isaac McLendon. In November, 1877, Shumate, as administrator, obtained judgment against Isaac Mc-Lendon. This judgment became dormant, and in November, 1897, w'as revived by scire facias against Barnett as administrator, and the execution issued on this judgment is the one to the levy of which the present claim was interposed. The claimant is a child of Mary McLendon. In 1878 and 1879 Mary McLendon executed mortgages upon portions of the land in controversy, to secure debts due by her, which were afterwards paid. In 1878, 1879, 1881, and from 1894 to 1901, Mary McLendon returned the land in controversy for taxation as her own. The tax books for 1880 and from 1882 to 1893 could not be found. Since 1901 the property has been returned as the estate of Mary McLendon. After 1877 Isaac McLendon returned no land for taxation.</p>

<p>Equitable petition. Before Judge Holden. Oglethorpe superior court. January 7, 1904.</p>

<p>Application for dower. Before Judge Russell. Jackson superior court. August 13, 1903.</p>

<p>Land was set apart as a year’s support to a widow and her five minor children jointly; she sold the land, not for the support and maintenance of the family, and put the purchaser in possession; after three of the children attained their majority, they, and the two minors hy next friend, brought an action, in the old form of “ complaint for land,” against the vendee of the purchaser from the widow, for the recovery of the land and mesne profits. Held, that it was not erroneous to dismiss the action on the ground that the plaintiffs could not recover the land during the life of the widow in an action to which she was not a party.</p>

<p>Action for damages. Before Judge Russell. Gwinnett superior court. October 28, 1904.</p>

<p>Action on insurance policy. Before Judge Cobb. City court of Athens. November 16, 1903.</p> <p>The plaintiff testified that Ms injury was such that from the date of the accident he could not and did not proceed regularly and in due course with his occupation as a salesman, and could not and did not go on with his usual work as if he had received no injury. On December 3, 1902, he was hanging framed pictures over the dress-goods counter at his place of business, in the discharge of his duties as a salesman, when one of them fell, the corner of it striking the top and back of his left hand, causing a breaking of the skin and a considerable bruise. Inflammation immediately set up, he suffered pain immediately, and it became worse daily until December 9,1902, at which time it was much inflamed, very red and painful, and the inflammation began to extend up the arm; blood poison set up from the wound, and abscesses formed on the arm, one of which had to be and was opened, the cut being about two inches long. The abscess was due directly to the blood poison. For three weeks the abscess was packed, the bone being exposed. The wound remained unhealed and caused pain and suffering from the day it was received until on or about February 22, 1903. Immediately on being hurt he dressed and washed the wound and applied a salve. On December 4 or 5 he consulted a physician, who treated him for it, and from the morning of the 9th the physician treated him daily. From the 9th his hand was so bandaged that it was impossible for him to have the use of it, even if the wound had permitted, but the soreness and inflammation would not have permitted its use even if the bandages had not been on. From two hours after the time he was hurt he was partially disabled from attending to his usual business as salesman. When he was first hurt the injury was apparently slight, and he. did'not think it serious. He went on with his work as best he could, using the injured arm with light work, until December 9. After that date he could not use the arm at all in handling the goods, but he could and did negotiate sales of goods, and gave such directions to his department as his condition permitted, “ when he took his bed.” The abscess was opened about the 27th, and he left the. store on that date. Before he was hurt he had an assistant; after he was hurt and could not use his arm except in light work, his assistant would handle heavy goods for him. Up to the 9th the hand could only be used in very light service; and after the 9th, by reason of the inflammation and pain, he abandoned the use of it totally. After that date and up to the 27th the only work he did was to use his right hand in pricing and explaining the merits of different merchandise ; and, after the sale was made, he would get some fellow-salesman to handle, measure, fold, and see that the goods were made ready for delivery. His duties were those of stock-keeper in the dress-goods, silks, and wash-goods department, and general salesman throughout the house, to handle all classes of goods whether light or heavy. From the afternoon on which he was hurt he was debarred from handling the goods, as handling them and putting up the stock proved irritating to the wound. He turned over to his assistant the special management of the work under his direction when present, and with his assistance in his work, from the day he was hurt. Although he went to the store daily until the 27th, he did not regularly remain there all day.</p> <p>cited Williams v. Preferred Asso., 91 Ga. 698; Young ®. Travelers’ Ins. Co., 80 Me. 244; Wolcott ®. United Ins. Asso., 55 Hun, 98; Sawyer®. U. S. Casualty Co. (Mass.), 8 Am. L. Beg. N. S. 233; Sheanon v. Pac. Mut. Ins. Go., 77 Wis. 618'(20 Am. St.'B. 151); Lord ®. Am. Mut. Acc. Asso.,' 89 Wis. 19 (46 Am. St. B. 815); 1 Am. & Eng. Ene. L. (2d ed.) 296-7; Thornton v. Trav. Ins. Go., 116 Ga. 126; Civil Code, §§ 5347,4995.</p>

<p>Probate of will — appeal. Before Judge Evans. Habersham superior court. December 10, 1903.</p> <p>cited Ga. B. 32/156; 34/458; 43/152-3, 157; 72/568; 17/444; 1 Greenl. Ev. § 108.</p> <p>cited Ga. B. 94/808; 98/557.</p>

<p>Action for damages. Before Judge Kimsey. Hall superior court. July 20, 1903.</p> <p>cited Civil Code, §§5098, 3862; Ga. É. 87/704;89/251 (1); 7/297; 73/366; 93/561;96/450; 106/453.</p> <p>cited Civil Code, §§ 5098-9; Ga. B. 109/604; 106/451; 102/254, 259; 89/732; 82/623; 73/655, 717; 56/351; 51/517.</p>

<p>Appeal. Before Judge Gobef. Cherokee superior court. August term, 1903. ,</p>

<p>Complaint. Before Judge Fite. Gordon superior court. August 1, 1903.</p>

<p>1. Under the act approved December 20, 1899 (Acts 1899, p. 79), an affidavit in forma pauperis before a foreign notary, with his seal attached, is receivable in the courts of this State, and sufficient to prevent a dismissal of a bill of exceptions for failure to pay costs.</p> <p>2. The refusal to dismiss a case because of a failure of the plaintiff to attach a bill of particulars does not afford ground for the grant of a new trial. Civil Code, §§ 5642, 4963.</p> <p>3.' The evidence was conflicting. There was testimony that at the time the Services were rendered the defendant was a resident of this State, and shortly afterwards removed therefrom; so that the claim was not barred by the stat- ' ute. Civil Code, §3783.</p>

<p>Certiorari. Before Judge Fite. Whitfield superior court. December 16, 1903. '</p>

<p>1. The publication stated the facts-and reasons why the defendants placed the plaintiffs on the “ unfair list,” and, taken as a whole, cast no imputation upon their character as individuals, or upon their solvency or standing as merchants.</p> <p>2. The words were not actionable per se, and the petition set out no cause of action, failing as it did to allege any special damage or loss of custom, trade, or profits, or any injury of any sort, to plaintiffs’ business.</p>

<p>Equitable petition. Before Judge Littlejohn. Dooly superior court.. April 1, 1904.</p> <p>To the facts stated in the opinion it is sufficient to add the following : By the amendment the . plaintiff dismissed the petition as to Mrs. Sims and Blackwell, administrator, and as to Hill, Ryals, and Parker as individuals, so that the case should proceed only against the Cordele Ice Company, and against Hill, Ryals, and Parker as directors and stockholders of the Cordele Ice Company ; and dismissed so much of the petition as sought to recover from the Company certain piping, pumps, tools, etc., or their value. The order of the court thereon was as follows: “It appearing to the court that the plaintiff, S. R. Sims, .has amended his petition so as to cure the misjoinder of causes of action and also misjoinder of parties defendant: whereupon it is ordered, considered, and adjudged by the court that the judgment of the Supreme Court, as contained in the remittitur hereto attached, be and the same is hereby made the judgment of this court, and that said cause stand for trial upon’the petition as thus amended.” In his subsequent petition the plaintiff stated, that in pursuance of the order of the court made January 5, 1903, appointing Palmer receiver and providing that the appointment should be vacated on the defendants giving a good and solvent bond to be approved by the court, conditioned to pay whatever amount the plaintiff might recover as rent or damages, the defendants entered into a bond, with certain sureties named, to which bond the plaintiff objected at the time it was given, on the grounds, that certain of the sureties were a partnership and not authorized to go upon the bond as security, that it was not signed by each member of the firm but only by one of them, who was a defendant in the case, that another of the sureties was a corporation without authority under its charter to execute the bond as surety, and that the other sureties were parties defendant; that when these objections were made, counsel for the defendants stated that they would make the bond satisfactory, but this was not done; that soon thereafter the case was dismissed on demurrer, and no furthur effort was made at that time to have the bond strengthened or to have the receiver take charge of the property; that in compliance, with a judgment of the Supreme Court reversing the judgment of dismissal, and before the entry of the remittitur in the court below, the plaintiff amended his petition; that the effect of the amendment, in dismissing the case as to certain of the defendants, might be to discharge from liability the sureties on the bond; that whether this would release the sureties or not, the bond was not a good and solvent bond as required by the terms of the order of court, not only for the reasons stated in the objections made at the time of the approval of the bond, but for the additional reason that Mrs. Sims and Blackwell were insolvent; that the season for manufacturing ice was beginning, and it was important that some .disposition be made of the ice machine and plant; and that the property was worth $2,000 a year for rent, which sum the plaintiff offered to pay for the year 1904; wherefore he prayed that the order of January 5,1903, be put in force, and that the receiver be required to take charge of the property and insure, care for, and rent it. The court required that copies of this petition be served on the Cordele Ice Company and Hill, Ryals, and Parker. The Cordele Ice Company demurred and answered, contending that the plaintiff had not complied with the direction of the Supreme Court as to striking parties defendant; that under that judgment the case should have proceded against the Cordele Ice Company alone; and that the plaintiff having failed to comply therewith, the judgment dismissing .the petition was unconditionally affirmed, and there was no case in court and nothing to authorize the retention of the receiver or the strengthening of the bond. The court, after hearing evidence, passed an order providing that the defendants be allowed ten days in which to strengthen the bond by adding good and solvent sureties, to be approved by the court, and that on failure to do so, Palmer “is hereby appointed as receiver and ordered to take charge of said property described in the original petion,.preserve the same, and rent said property to the best advantage.” The Cordele Ice Company excepted to this order, as well as to the order directing that the cause stand for trial on the petition as amended. The plaintiff filed a cross-bill of exceptions, assigning as error so much of the order in regard to the appointment of a receiver as made the appointment depend on the failure to strengthen the bond.</p>

<p>The evidence was not sufficient to authorize a conviction, and the verdict of guilty was, therefore, contrary to law.</p> <p>3Tish, P. J., and Candler, J., dissenting. 1. The doctrine of Lord Hale, that in rape cases the accused should not he convicted on the uncorroborated testimony of the woman alleged to have been ravished, is merely a rule of evidence in the nature of a caution to juries and trial judges, and furnishes no warrant for a court of errors to set aside a conviction of rape, approved by the trial judge and based on the positive testimony of the alleged victim that the crime was committed.</p> <p>2. In the present case, even if the doctrine of Lord Hale be applied, there was sufficient corroboration of the testimony of the woman, in that she was proved to be of good character, and the accused admitted having endeavored to avoid arrest and prevent a prosecution.</p>

<p>Proceeding against intruder. Before Judge Holden. Glascock superior court. December 31, 1903.</p> <p>Mrs. Lowe was the owner of a tract of land on which she resided with her son, Lawson Thompson, to whom she had rented it. She made a deed shortly before her death, when she was about ninety years of age, conveying this land to her great-grandchildren, the Glovers, subject to a life-estate reserved to herself. She died in 1900. In 1902 the Glovers, by their next friend, instituted a proceeding under the Civil Code, § 4808, to eject Lawson Thompson from the land, as an intruder; to which he filed a counter-affidavit. From the evidence at the' trial it appeared that at and for many years before the time of his mother’s death, the defendant was in possession of the land as her tenant, and that he afterwards continued in possession. His son Frank, who, resided in another county, rented the land from the Glovers for the year 1901, and gave them a note for the rent, but it did not appear that he took possession of the premises or sublet to the defendant, or that in renting or giving the note he acted at the instance of the defendant. A justice of the peace, who received the note for collection, testified that it was paid to him, but he did not remember “ whether it was Frank or some of the rest of the family that paid it;” that he thought that John Thompson, a son of the defendant, brought him the money; that it was paid either by the defendant or by his son; that it seemed to him the defendant consented to pay the rent, and the son paid the money; that at first the defendant disputed his liability for rent, and said the land was his, and claimed it under his mother;- that he (the witness) could not be certain as to the defendant’s agreeing to pay the rent, he might be mistaken about that; he “ did not charge his mind whether it was Mr. Thompson or one of his boys who afterwards yielded to the payment of the rent;” the best of his recollection was that “ the old man consented and the young man brought the money.” John Thompson testified that he did not pay the note. Frank Thompson did not testify. The defendant in his testimony denied that he paid the note or consented to its payment. He testified that he protested against its payment, though he promised to reimburse Frank Thompson if Frank should be forced to pay it; that he claimed the land in good faith as an heir of his mother; that at the time the deed to the Glovers was made, and for some years before her death, her mind was weak, and he did not think she had sufficient mental capacity to make a deed or contract of any kind; that the physician who attended her told him that she had not been competent for business in a considerable period;' that his attorneys, to whom the facts were stated, told him that he had rights on the premises and advised him to stay there; and that he had remained there continuously since the death of his mother, claiming possession in his own right. ’ The physician referred to and other witnesses testified to the same effect, as to the mental condition of the defendant’s mother; Other testimony was in conflict with this. The verdict was against the defendant, and his motion for a new trial being overruled, he excepted/</p> <p>cited Civil Code, §§ 4808, 4813; Ga. Rep. 114/124; 118/906; 106/293; 100/597; 94/279.</p> <p>cited Ga. R. 69/746; 106/295.</p>

<p>1. While the report of the auditor was concise and brief, it appears to embrace findings upon all of the material issues made by the pleadings ; and it has not been made to appear that there was any error in refusing to recommit the report on the ground that the same was too indefinite and did not cover the issues involved.</p> <p>2. When error is assigned upon the refusal of a judge to approve an exception of fact to an auditor’s report in an equity case, the burden is upon the plaintiff in error to show, to the satisfaction of the Supreme Court, that the finding of the auditor is unsupported by evidence,, the presumption being that the finding is correct; and where it does not distinctly appear that the finding is unsupported, the judgment of the trial judge refusing to approve the exception of fact will be affirmed.</p> <p>3. Whether a petition sets forth an equitable or a legal cause of action depends upon the relief prayed for; and a petition which prays for a dissolution of a partnership, an accounting, and an injunction certainly makes an equity case.</p> <p>4. No sufficient reason has been shown for reversing the judgment.</p>

<p>Complaint. Before Judge Gober. Cherokee superior court. August 26, 1903.</p>

Action for damages. Before Judge Gober. Cherokee superior court. October 5, 1903. Wylie Edwards,, by his next friend, brought suit against the Canton Cotton Mills for damages' on account of personal injuries. The petition alleged, in substance: On February 10, 1902, the plaintiff, then ten years old, was in the employment of the defendant, his work being to sweep floors and make bands for the spinning room.

<p>Certiorari. Before Judge Fite. Gordon superior court. August 27, 1903. . . "</p>

<p>Where a tenant brought trover for a portion of a crop made by him and levied on under execution against him in favor of his landlord, issued upon proceedings to foreclose a landlord’s lien for supplies furnished to make the crop, which, after the levy, was sold at private sale by the landlord, it was erroneous to give in charge to the jury an instruction which could be fairly construed to mean that the failure of the tenant to file a counter-affidavit in the foreclosure proceedings would prevent a recovery by him in the trover suit.</p>

<p>Action for damages. Before Judge Eite. Dade superior court. November 16, 1903.</p>

<p>1. A receipt, signed by a justice of the peace whose judgment is sought to be reviewed on certiorari, showing that the plaintiff in certiorari has paid to him a named sum “in full of all costs to date ” (the date of the application for certiorari) in the case in which the judgment complained of was rendered, substantially meets the requirement of the Civil Code, § 4639, that the party applying for the writ of certiorari must produce a certificate from the officer whose judgment is the subject-matter of complaint, that all costs which may have accrued on the trial below have been paid.</p> <p>2. When a certiorari is sustained and the case sent back for another hearing, the certiorari bond becomes functus officio; the security thereon is discharged from further liability, and may become security on a subsequent certiorari bond in the same case.</p>

Action for damages. Before Judge Fite. Gordon superior court. November 14, 1903. Bandy, a minor, by his next friend sued the railroad company for personal injuries sustained in alighting from a train on which he was a passenger. At the trial he testified: “ I got on the train at Dalton, fol' Miller’s Station. . . It was about an hour or an hour and a half behind, as well as I remember. I paid 'the conductor my fare, , . the amount demanded by the conductor.

<p>Where on the trial of an action for damages for personal injuries counsel for the plaintiff announced to the court and jury that he claimed nothing- for permanent injuries, a charge of the court which, fairly construed, authorized a recovery for permanent injuries was erroneous, and, when the verdict for the plaintiff was, under the evidence, extremely liberal, cause for a new trial.</p> <p>Action for damages. -Before Judge Fite. Gordon superior court. November 14, 1903.</p>

<p>This was an application to restrain the' cutting of timber, based upon the grounds that the defendants were insolvent, and that the damages would be irreparable. No otjier equitable reason for granting an injunction was alleged, nor was there anything in the petition which would bring it within the provisions of the timber cutter’s act, embraced in the Civil Code, § 4927. Held, that, the evidence being insufficient to show that the damages would be irreparable, and there, being a conflict in the evidence as to whether the defendants were able to respond in damages, the discretion of the trial judge in refusing to grant an injunction will not be controlled.</p>

<p>Action on bond. Before Judge Reece. City court of Floyd county. August 27, 1903.</p>

<p>1. The summary of the contentions of the parties must embrace every material issue made by the pleadings. Where a plaintiff bases his actiofCupon two alleged acts of negligence by the defendant as causing the injury complained of, the omission by the court to state plaintiff’s contention as to one of the alleged acts of negligence and to charge the law appropriate thereto is error.</p> <p>2. One is bound to use ordinary care to avoid the consequences of another’s negligence; but this duty does not arise until the negligence of such other is existing, or is apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend the existence.</p>

<p>1. An execution issued by a tax-collector for State and county taxes can not be lawfully transferred by the tax-collector in a county having a population of less than 75,000. /</p> <p>2. When a cross-bill of exceptions presents a question which is controlling upon the case as a whole, the Supreme Court will first consider and dispose of that question ; and if the judgment of the trial court with respect thereto is reversed, the main bill of exceptions will be dismissed.</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. November 24, 1903.</p> <p>cited Civil Code, §§ 4047 (6), 4960, 4974, 4981, 4994, 5098-9, 5102; Ga. B. 18/756; 29/339; ,36/602; 68/828; 88/245; 94/780 (2); 106/451.</p> <p>cited Civil Code, §§4995, 5067, 5099, 5119; Dicey on Parties, Rule 114, p. 500.</p>

<p>Action for damages. Before Judge Henry. Chattooga superior court. December 16, 1903.</p>

<p>Habeas corpus. Before Judge Freeman. Carroll superior court. February 27, 1904.</p>

<p>Petition fox injunction. Before Judge Reagan. Clayton superior court. May 9, 1904.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. February 25, 1904.</p>

<p>Injunction. Before Judge Felton. ' Bibb superior court. September 24, 1903.</p>

<p>Accusation of assault and battery. , Before Judge Hodges. City court of Macon. April 11, 1904.</p>

<p>Accusation of pointing pistol at another. Before Judge Hodges. City court of Macon. April 20, 1904.</p>

<p>Accusation of assault and battery. Before Judge Hodges. City court of Macon. April 11, 1904.</p>

<p>Accusation of simple larceny. Before Judge Hodges. City court of Macon. April 27, 1904.</p> <p>cited Penal Code, § 883; Ga. B. 119/299 ; 112/538; 109/570, 572; 58/399; 116/579; 71/361; 68/820; 25/689; 31/208; 3/419; 92/48 ; 64/449; 50/591.</p> <p>cited, besides cases cited in the decision, Ga. B. 114/226; 93/47; 62/583; 41/484; 24/31; Penal Code, § 753; Acts 1884-5, p. 475-6.</p>

<p>Accusation of selling liquor. Before Judge Johnston. City court of Waynesboro. - April 27, 1904.</p>

<p>Accusation of forcible entry. Before Judge Carter. City court of Baxley. April 25, 1904.</p>

<p>Indictment for larceny from the house. Before Judge Eoan. Fulton superior court. April 27, 1904.</p>

<p>Indictment for selling liquor. Before Judge Taliaferro. City-court of Sandersville. May 10, 1904.</p>

<p>Certiorari. Before Judge Daley. Bulloch superior court. April 30, 1904.</p>

<p>Indictment for murder. Before Judge Spence. Baker superior court' April 21, 1904.</p>

<p>Conviction of manslaughter. Before Judge Daley. Tattnall superior court. May 14, 1904.</p>

<p>Indictment for assault with intent to murder. Before Judge Felton. Bibb superior court. May 2, 1904.</p>

<p>Accusation of selling liquor. Before Judge Clark. City court of Forsyth. May 17, 1904.</p>

<p>Indictment for simple larceny. Before Judge Parker. Glynn superior court. April 22, 1904.</p>

<p>1. It is not error to overrule a motion for a mistrial, made on the ground that one of the jurors was allowed to leave the jury-room, it appearing that the juror was wanted as a witness in another case, and that from the time he left the jury-room until he returned he was accompanied by a bailiff, and it not appearing that any harm was done the complaining party.</p> <p>2. The evidence for the State was sufficient to authorize a conviction. It was contradicted only by the statement o£ the accused, which the jury were not bound to believe. Hence a verdict finding the accused guilty will not be set aside by this court as contrary to the evidence, especially as the trial judge has expressed his approval of the verdict by overruling the motion for a new trial.</p>

Indictment for arson. Before Judge Littlejohn. Webster superior court. May 23, 1904. Early in the morning of March 13, before daylight, a considerable portion of the town of Preston, in Webster county, was destroyed by fire. H. B. Morgan and A. S. Harrell were charged with willfully and maliciously burning the storehouse of J. R. Stapleton, trustee in bankruptcy of Stapleton and Nicholson Company, in which house the conflagration began.

<p>The instructions -which the court gave to the jury as to the law governing the case were in accord with previous decisions of this court which were controlling, and fully covered the issues upon which the jury were called on to pass. The verdict was amply supported by evidence, and no reason appears why the conviction of the accused should not be allowed to stand.</p>

<p>There was no error of law requiring the granting of a new trial. The evidence, although weak and in some respects unsatisfactory, was sufficient to support the verdict, which will not be disturbed after having been approved by-the trial judge.</p>

<p>Indictment for bestiality. Before Judge Felton. Houston superior court. May 31, 1904.</p>

<p>. Indictment for larceny. Before Judge Felton. Houston superior court. May 81, 1904.</p>

<p>Indictment for murder. Before Judge Felton. Houstou superior court. June 6,1904.</p>

<p>Indictment for adultery. Before Judge Daley. ■ Tattnall superior court. May 18, 1904.</p>

■ Action for damages. Before Judge Hodges. City court of Macon. October 24, 1903. * The petition alleged: Petitioner became a passenger on one of the defendant’s electric cars, paid her fare, and notified the conductor to put her off at a place called Brooklyn bridge. The conductor stopped the car near the point which had been designated, but not exactly opposite the bridge as directed.

<p>Action for damages. Before Judge Kimsey. Hall superior qourb. September 7, 1903.</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. December 21, 1903.</p>

<p>Action for damages. Before Judge Reagan. Fayette superior court. September 23, 1903.</p>

<p>Action for damages. Before Judge Hollingsworth. City court of Fayetteville. November 10, 1903.</p>

<p>Complaint for land. Before Judge Lewis. Baldwin superior court. September 21, 1903.</p>

<p>Complaint. Before Judge Holden. Wilkinson superior court. October 6, 1903.</p>

Levy and claim. Before Judge Holden. Morgan superior court. November 16, 1903. P. R. Thomason was the sole surety of John Frank Johnson on a guardian’s bond executed November 4, 1861. Johnson died a few years thereafter. In January, 1879, a homestead in certain land belonging to the estate of Johnson was duly set apart to his widow, Mildred Johnson, and her minor child. Thomason had advised her to take a homestead.

<p>1. A deed which recited a consideration of five dollars and love and aSection was not, upon its face, a voluntary conveyance.</p> <p>2. That the subscribing witnesses saw no money paid to the grantor when the deed was executed and delivered, and that they had no knowledge of any</p> <p>• being paid at any other time, did not show that the conveyance was voluntary.</p> <p>3. That the grantor, at some indefinite time and not in the presence of the grantee, told one of the subscribing witnesses to the deed that it was without money consideration, was hearsay, and not admissible.</p> <p>4. It did not appear that the deed upon which the claimant relied was voluntary, and the court erred in directing a verdict finding the property subject upon that theory.</p>

<p>Petition for injunction. Before Judge Lewis. Laurens superior court. March 7, 1904.</p>

Habeas corpus. Before Judge Lewis. Baldwin superior court. May 10, 1904. Miss M. L. Barnwell sued out a writ of habeas corpus, alleging that she was detained in the sanitarium of Dr. H. D. Allen. In his answer he justified her detention by the fact that she had been placed in his care and custody by M. C. King, her guardian under appointment of the ordinary of Baldwin county, in a proceeding adjudging her to be insane.

<p>Motion to transfer.</p>

<p>Complaint. Before Judge Willis. City court of Columbus. August 29, 1903.</p>

<p>Accusation of simple larceny. Before Judge Foute. City court of Cartersville. May 2, 1904.</p>

<p>1. In a suit on a promissory note, brought against a partnership, which was defended by only one of the partners, evidence offered by the defendant as to a contract of dissolution of the partnership, by the terms of which the other partner agreed to assume all the liabilities of the firm, including the note sued on, was not admissible, it not appearing that the plaintiff knew of the existence of the contract or derived any benefit therefrom.</p> <p>2. In such a suit, evidence of an agreement between the plaintiff and the defendant, relative to another and different note from the one sued on, made long before the execution thereof and not shown to have been in any manner connected therewith, was not admissible as a defense to the action.</p>

<p>Petition for direction, etc. Before Judge Russell. Walton superior court. February 20, 1904.</p> <p>The High Shoals Manufacturing Company owns a single manufacturing plant, with dam, water-power, land, buildings, and machinery, located partly in each of three counties, the raw and manufactured material and other personal property being first in one and then in another of these counties. Some of the land and the greater part of the water property is in Oconee county; the main building, some of the operatives’ houses, the machinery, and the most valuable part of the plant are in Morgan county; the dye-house, the remainder of the operatives’ houses, and the offices of the company are located across the line in Walton county, in which the charter locates the principal office of the company. The company made its tax returns for 1903 in Walton county; whereupon the authorities of Morgan county filed a petition under the act approved August 17, 1903 (Acts 1903, p. 16), for direction and judgment as tci which county was entitled to the return and taxes, contending that, except as to notes and accounts, the returns should have been made, and the tax on the entire plant and tangible personal property should have been paid, in Morgan county, as required by section 8 of the tax act of 1902, which provides “ that if the real estate or plant of any of said companies or persons is located on or across a county line or county lines, and in two or more counties, said real estate, together with the buildings and machinery thereon, and all personal property made by or used in connection with or for the purpose of operating said manufacturing or other plants, shall be returned to the tax-receiver of the county wherein are located the main buildings containing machinery or most of said main buildings, and the money notes and accounts and other like property may be so returned, or may be returned to the tax-receiver of the county wherein the principal officer or residence of such companies or persons is located.”</p> <p>The County of Walton and the High Shoals Manufacturing Company demurred, and also answered. By the answer, in support of which evidence was offered, Walton County and the manufacturing company contended, that by charter the manufacturing company’s place of residence was located in Walton county; that the plant was operated as a unit for the manufacture of cotton goods; that the.tax returns for 1903 had already been made in the County of Walton before the approval of the act of August 17, 1903, which provided for the filing of the form of petition like that presented by the County of Morgan; that none of its personal property made by or used in connection with or for the purpose of operating the plant was ever, during the year 1903, iu the County of Morgan, except temporarily; that all of it became the property of the defendant in Walton county, and whenever any part of it, such as raw material, supplies, or other personalty, may have been placed in Morgan, the same was there temporarily being consumed, or was returned to Walton county in the same or another form, and in the case of manufactured goods all sales were made by the company in its own store or office, or through agents in other States; that it was the right of the defendant to return all of its property, real and personal, in Walton county, where its home office was located on a part of the plant itself; that section 8 of the tax act of 1902 is directed to the taxpayer, and does not change the general law giving the company the right to return its plant in the county of its legal residence; or if it does change the general law, it is contrary to that provision of the constitution which requires general laws to have uniform operation, and prohibits the enactment of a special law in a case for which provision has already been made by a general law (Civil Code, § 5732); that the act also violates the constitution .(Civil Code § 5883) in that it attempts to provide a different mode of making tax returns, and prescribes different counties in which returns shall be made by corporations owning manufacturing plants located on or across a county line, from that provided in the general law for tax returns of all other corporations or persons owning property on a county line, the effect of which would be to impose additional burdens on the former class of taxpayers. The court disallowed an amendment whereby the defendant sought to ■set out the provisions of the Political Code, §§ 816, 817, 818, and 826, in reference to the county in which tax returns should be made, with a view of showing that section 8 of the tax act of 1902 was variant from these general laws. To this ruling the defendants excepted. They excepted also to the refusal of the court to allow proof of the allegation in reference to the personal .property being only temporarily in Morgan county.</p> <p>The County of Morgan introduced the tax returns of the manufacturing company, made June 29, 1903, to the tax-receiver of Walton county, from which it appeared that on the day fixed for the valuation the company had real estate, $20,000; machinery, $67,000; merchandise, $4,000; raw material, $34,000; manufactured goods, whether at principal office or in the hands of agents, commission merchants, or others, $3,500; money, $1,500; choses in action, $4,000; mules, $800 ; wagons, $200. The president of the manufacturing company testified that the manufactured goods were partly in the mill, partly en route to Philadelphia, and partly in Philadelphia. The merchandise was in the store in Walton county. The mules and wagon were in Walton county. Part of the cotton was in Athens, Clarke county, and part in the warehouse, which is in Morgan county. The item “raw material” in the tax return embraces the cotton in High Shoals and in Athens. The merchandise “I should not think was used in connection with the plant, which can be operated easily without the store.” The goods are not sold simply to operatives, but to anybody. It is a general store. About a tenth of the goods in the store are manufactured at the plant. The company buys cotton and stores it in Athens; but if it secures enough at High Shoals, it sells that at Athens. It bought the cotton either to manufacture or to sell as it saw fit. It actually used all the cotton embraced in this return in manufacturing. 3 The defendants requested the court to charge that the personal property referred to in the act “is such only as may be in or connected with the buildings containing the machinery, and is not personal property outside and not connected with said buildings, or machinery in the buildings. The jury found that the main buildings containing the machinery were in Morgan county, and that the amount of personal property made by and used in connection with or for the purpose of operating the plant was $105,000. Thereupon the court entered a decree that, under existing laws, the manufacturing company shall return and pay taxes upon its real estate, with the buildings and machinery thereon, and on all personal property made by or used in connection with or for the purpose of operating tlié manufacturing plant, in the county of Morgan, but that its choses in action and like property may be returned either in Morgan or in Walton county at the option of the company ; to which the defendants excepted on ■ the ground that neither the pleadings, nor the evidence, nor the verdict, nor the law of the case authorized that portion of the decree, for that it undertakes to determine in what county the tax returns shall be made, without reference to the changes in the nature, or the uses, or the location of the property. They excepted to the charge that “ the act refers to three classes of personal property, — those made by them [the manufacturing company] and on hand at the time; or those used in connection with operating the manufacturing plant of the High Shoals Manufacturing Company; or those used for the purpose of operating the High Shoals Manufacturing Company. It matters, not where any of the property included in any one of those three classes was located. It does not matter in which county it was so located, provided it was covered by any one of these three classes referred to in the return required to be made on the 15th of March 1903.”</p>

<p>1. A surety who pays the full amount due on a fi. fa., hut does not have any entry of payment indorsed thereon, and allows the judgment to become dormant, is not equitably subrogated to the rights of the plaintiff in the judgment so as to enforce contribution against a cosurety. . The surety must not only pay the amount due on the fl. fa., but must also have the entry • of payment made thereon, before he can control the judgment and fi. fa. against a cosurety.</p> <p>2. An amendment to the pleadings, raising new and distinct issues, is not allowable after the filing of an auditor’s report. But an amendment of a pleading to conform to the evidence submitted before the auditor without objection,' and which does not raise any new issue, is permissible.</p> <p>3. A defendant, pending a suit, executed to his wife a deed to certain realty. Upon his death, his widow and children were made parties to the suit in his stead. Before the trial of the case, the realty conveyed by the original defendant to his wife was divided between her and her children, pursuant to a written agreement which stipulated that the children should pay all demands against the deceased husband and father. Deeds with covenants of warranty were executed by the mother to the children, as provided in the agreement. The suit resulted in a judgment; and one of the children, to prevent a sale of his property, satisfied the judgment by paying not only his propor_ tionate part thereof but also a balance due thereon which should have been paid by two of the children. Held, that there was no breach of the warranty of title from the mother to the child who thus discharged the debt of his father.</p>

<p>Action on contract. Before Judge Fite. Bartow superior court. October 2, 1903.</p>

Complaint. Before Judge Clark. City court of Forsyth. September 8, 1903. The Bank of Culloden was incorporated October 11, 1897, under the provisions of the Civil Code, §§ 1903 .et seq. On January 6, 1898, it adopted the following by-law: “No transfer of stock shall be valid until entered on the books of the bank and all arrearages paid.

<p>Motion to set aside judgment. Before Judge Reagan. Monroe superior court. September 11, 1903.</p>

Complaint for land. Before Judge Holden. Morgan superior . court. November 18, 1903. The defendants contended that the following instrument, on which the plaintiff based his claim of title, was testamentary, and not a conveyam.ee passing title in presenti. “ State of Georgia, Morgan County.

Complaint. Before Judge Adams. City court of Dublin. November 21, 1903. McCullough and Bostick bought a sawmill, for which they gave joint notes providing that title to the property should remain in the vendors until payment of the notes. It was after-wards agreed between McCullough and Bostick that Bostick should take the mill, operate it as his own, pay the notes, and own the property.

<p>Bail-trover. Before Judge Holden. Morgan superior court. November 17, 1903.</p> <p>The action was by Malsby & Company against Arnold, for the recovery of an engine and boiler and a saw, which the plaintiffs had sold the defendant under a written contract by which title was reserved in the vendors until payment of the purchase-money. Arnold by his plea sought to recoup damages on account of delay in the shipment of the machinery. An order by Arnold to Malsby & Company (Atlanta, Ga.), to ship “ at once ” to him at Godfrey, Ga., an engine and boiler and a saw, of designated make and dimensions, foiTned a part of the written contract referred to. He agreed therein “ to receive the machinery on arrival fully subject to the warranty printed below,” and to pay freight from the factory and a stated price for-it. In the contract of sale and warranty “printed, below,” it is provided that Malsby & Company shall not “ be held liable for damages for delays by railroad or failure of manufacturers in not shipping machinery;” also that Malsby & Company shall not “ be held responsible for any damage caused by delay in shipping machinery, or detention in transportation, but shall use all means in their power to secure prompt delivery of same.” It is provided also that “no person or firm selling Malsby & Company machinery is authorized to make any verbal or written alteration or change in the foregoing warranty.” The contract is dated December 7, 1900. At the trial the defendant testified: “ I bought an' engine from Malsby & Company through the half brother of Mr. Malsby. . . Mr. Malsby came to my place on the morning of December 7, for the purpose of selling me an engine. I took him in my buggy and rode out there on my farm where I had just started to cutting corn, and told him I wanted an engine for the purpose of shredding this corn. . . Malsby said he was the junior member of the firm of Malsby & Company. I bought the engine for so much, to be delivered at my place within six days. It was to be shipped from Atlanta, and to be shipped at once. He could not have sold me the engine under any other circumstances, because I could have gotten one in Macon, and told him so. I could have gotten it at once. The engine was not shipped at once. It was shipped from New York City about December 21. . . When he went to my desk to draw up the contract it was specially understood between Malsby and me that this engine was to be shipped at once. I had taken him to my place and showed him the amount of corn I had, and told him that I had to have the engine right away, and if I didn’t get it right away the stuff would be liable to ruin; and he said he had it in stock in Atlanta and would ship it out the next morning, that he would go there and look after getting it out himself. There was a saw bought in connection with it. . . Before I signed the contract I told him the engine would have to be delivered at once; he agreed to that, and I signed it.” There was other testimony to the same effect. The defendant introduced a letter from Malsby & Company, acknowledging the receipt of the $rder through “our Mr. Malsby,” and stating that the machinery would be shipped “ as soon as possible.” He testified that he waited until the expiration of four or five days, and, not hearing from them, wrote to Malsby, and afterwards received different communications from Malsby & Company (the contents of which did not appear), from which he “ expected the engine right away; ” that the corn rotted while he was waiting for the engine, and that he was thus damaged in an amount stated. At the conclusion of the evidence, the court sustained a motion of the plaintiff’s counsel to rule out the testimony as to what Malsby said in regard to the time when the engine was to be shipped, on the ground that there was a written contract. The court then directed a verdict for the plaintiff. The defendant excepted.</p>

<p>Exceptions to auditor’s report. Before Judge Holden. Morgan superior court. November 16, 1903.</p>

Action for damages. Before Judge Butt. Muscogee superior court. August 1, 1903. The action was for personal injuries from the collision of an electric street-car with a buggy in which the plaintiff was riding. The collision occurred in Broad street, in the City of Columbus. Double tracks of the street-railroad run north and south along the east side of the street.

<p>This being an action, against a railway company by an employee, for damages for alleged personal injuries, and there being no direct evidence of negligence, the plaintiff relying solely upon the presumption of law arising from proof that he was without fault, and the uncontradicted evidence of the defendant being of such a character as to rebut the presumption, it was error to overrule a motion for a new trial based upon the ground that the verdict was contrary to law and the evidence.</p>

<p>Action for damages. Before Judge Butt. Muscogee superior court. November 12, 1903.</p> <p>cited Civil Code, §3841; Ga. Rep. 71/112: 93/633; 108/411; 115/429; 19 L. E. A. 408; 62 L. E. A. 700, and note; 80 Tex. 400, s. c. 16 S. W. 111.</p> <p>cited 86 Ga. 294; 7 Pickle, 154; 54 Minn. 223 (55 N. W. 1119); 21 L. E. A. 337; 6 Tex. Civ. App 11; 159 Pa. St. 420 ; 33 W. N. C. 421; 28 Atl. 190; 33 Atl. 1; 38 L. E. A. 505; 21. S. W. 384; 65 N. Y. Supp. 946; 51 Cen. L. J. 304; 77 N. W. 13; 13 Lea, 507; 49 Am. R. 666; 55 L. R. A. 271; 124 Fed. 246; Cooke’s Trade and Labor Unions, 26,</p>

<p>The venue of a suit against a railroad company for damages for failure to trace freight which is to be conveyed by two or more common carriers, and to give the shipper, consignee, or their assigns written information as to when, where, how, and by which carrier the freight was lost, damaged, or destroyed, and the names of the parties and their official position, if any, by whom the truth of facts set out in the information can be established, is the county where the principal office or place of business of the initial carrier is located.</p>

<p>1. It is error to refuse to sanction a petition for certiorari from the judgment of a justice of the peace, when it appears from the petition that upon -the call of the case in the justice’s court the panel of nine jurors was challenged by the complaining party; that five of the nine jurors announced that they had publicly expressed an opinion as to which party should prevail on the trial; that the plaintiff in certiorari then objected to the panel; and that íhe magistrate overruled his objection ,and forced him to trial.</p> <p>2. Where a petition for certiorari shows that the verdict in the justice’s court , was for a greater amount than was claimed by the plaintiff, the judge should not refuse to sanction the petition.</p> <p>S. AYhen a married woman dies leaving a husband surviving her, the husband is primarily liable, and not the estate of the deceased, for the payment of her funeral expenses.</p> <p>4. The administrator of a deceased person is not liable for the funeral expenses of the decedent when it appears that the credit therefore was extended to a third person, on the express promise of such third person to pay the bill.</p>

<p>Levy and claim. Before Judge Raines. City court of Dawson. August 19, 1904.</p>

<p>Foreclosure of lieu. Before Judge Crisp. City court of Americus. August 20, 1903.</p>

Levy and claim. Before Judge Littlejohn. Lee superior court. December 12, 1903. On October 17, 1901, the clerk of Fulton superior court issued an execution against “ Leah J. Ansley of Lee, County,” generally, and especially against certain land in Lee county.

<p>' Complaint for land. Before Judge Littlejohn. Lee superior court. December 26, 1903.</p>

<p>Complaint. Before Judge Littlejohn. Stewart superior court. January 12, 1904.</p>

<p>Injunction and receiver. Before Judge Littlejohn. Stewart superior court. April 9, 1904.</p>

<p>Complaint. Before Judge Bower. City court of Bainbridge. September 14, 1903.</p>

<p>Levy and claim. Before Judge Spence. Decatur superior court. November 20, 1903.</p> <p>An execution on a judgment rendered in April, 1900, in favor of J. M. Cox against William Detwiler, was levied on land in the village of Eldorendo, on April 9, 1901. A claim was interposed by the defendant’s wife, Anna Detwiler. By consent the case was tried by the judge without a jury. It appeared that in January, 1901, the land was conveyed to William Detwiler, and that “in April, 1901,” he made a deed to Anna Detwiler. William Detwiler testified: “ The property was purchased with money that my wife drew out of the building and loan association; she had carried it nearly five years, — the Georgia State, of Savannah, and the Bankers, of Montgomery. She drew four hundred dollars out of these two associations, and, with that and the proceeds of the sale of two horses which had been sold to her by bill of sale by Troup Hines, this property in dispute was purchased. She drew the money out of the building and loan before it matured, for the express purpose of putting it in this property in dispute. The money was paid over to her by the building and loan association, which was the withdrawal value of that stock. This money that she got from the building and loan association was the fruits of my labor that I put in the building and loan association in my wife’s name, for her benefit. My wife paid for the property with that money. The money was given to my wife before this execution, for three or four or five years, as it was an accumulation. ■ I didn’t consider that I owed Mr. Cox anything at the time I gave this money to my wife. I think the debt, the foundation of this execution in favor of Mr. Cox, was made in 1889, and the judgment sued out in 1900. I think the.loan association stock was taken out in ’92 or ’ 93, somewhere along there, and the assessments were paid by me out of my earnings. The money was withdrawn from the building and loan association, I think, four years ago, at the time I built my store at Eldorendo, at the time that deed was made to me by the Georgia Pine. I do not know why the title, the deed to that property, was put in my name. I put it there against my wife’s protest. I don’t know what I done it for, unless it was because I never had a deed to anything in my life, and I just wanted that in my name. I did not give this money to my wife for the purpose of defrauding any one. I gave it to her because I wanted to make some provision for her, and at that time I thought building and loan was a good investment. I think I carried the stock in the association for her nearly four years. I bought and built that store property in Eldorendo with the money arising- from that source. In 1892 or ’ 93, at the time I began to invest this money in the building and loan for my wife, I did not have any property.” Mrs. Anna Detwiler testified that the money that bought the store and property on which it is situated at Eldorendo was her money, that she “got out of the building and loan.” The court rendered judgment against the -claimant. She moved for a new trial, on the ground that the verdict was contrary to law and the evidence. The motion was overruled, and she excepted.</p> <p>cited Civil Code, §§ 3592, 3595; Ga. Rep. 113/1143; 17/220; 53/406 - 7; 55/497; 56/161, 538; 67/738-9; 82/684; 117/467.</p>

<p>1. The payment of costs in order to secure a certiorari is primarily intended for the protection of the officers, and where there have been successive trials and both parties have paid costs in order to secure new hearings, they are not obliged, during the pendency of the suit, to refund costs previously paid by their adversaries.</p> <p>2. The question of ultimate liability, and the accounting for costs, is to be settled when the final judgment determines which party is cast in the suit.</p> <p>S. The statute does not require that the applicant for a writ of certiorari shall pay costs which have accrued on previous hearings, but requires him to pay only the costs which have accrued on the trial resulting in the verdict or judgment to which he excepts.</p> <p>4. Where the judgment of the justice was in favor of the plaintiff, and the defendant paid the costs and appealed, and the jury found a verdict in favor of the defendant and against the plaintiff, who paid the costs accruing on the appeal and produced a certificate to that effect, it was error to dismiss the certiorari on the ground that the costs accruing before the trial on the appeal had not also been paid.</p>

Injunction. Before Judge Spence. Decatur superior court. May 10, 1904.

<p>Injunction. Before Judge Spence. Decatur superior court. May 10', 1904.</p>

<p>Action for damages. Before Judge Mitchell. Berrien superior court. October term, 1903.</p> <p>cited Civil Code, §§ 2925, 3785,3900, 5362.; Ga. R 4/3s08; 12/371; 30/873 ; 35/40 ; 57/144, 484 (2); 60/486; 67/606; 75/393 (3); 76/422 (9); 86/503 ; 88/252 (1); 89/349 ; 92/282, 664, 706 (1); 93/321 (2), 723(1); 94/436; 98/484, 518; 101/485; 107/807 (2); 109/172; 113/182; 1 Enc. PI. & Pr. 492(1).</p> <p>cited Civil Code, §§ 3900, 3779 et seq.; 113 Ga. 987-94; Clark on Contracts, 708 — 9.</p>

<p>The exceptions were to. the overruling of a motion by the defendant to dismiss the declaration in attachment, and to the striking of his plea. The bill of exceptions alleges that “ the striking of defendant’s .plea and answer was a final disposition of said cause of action.” It does not appear that any further judgment was rendered.</p>

<p>The evidence warranted a finding that the defendant railway company was guilty of negligence in killing the plaintiff’s' stock, and the written request to charge presented by the company was properly refused, the same not being adjusted to the issue the jury were called on to determine.</p>

Trover. Before Judge Covington. City court of Moultrie. December 15, 1903. The action was by John R. Stripling against William McMullen and Ms wife, Rachel, for the recovery of five cows; The defendants in their plea averred that the cows were the property of Mrs. McMullen, having been given to her by her deceased sister, Mrs. Bryant.

<p>Equitable petitiou. Before Judge Mitchell. Lowndes superior court. January 18, 1904.</p> <p>Mrs. Fry, as executrix, of the will of N. E. Fry, brought suit in the superior court of Lowndes county against Mrs. McCall. The petition alleged, that Mrs. McCall “filed a complaint for land in the superior court of said county and to the May term, 1897, of said court, against the said N. E. Fry, to recover ” a described tract; that the deed on which Mrs. McCall based her claim was a forgery; that, by reason of certain facts (set forth), Mrs.'McCall was estopped to enforce her claim; and that the petitioner was entitled to be subrogated to the rights of certain mortgagees and to have the mortgages enforced against the land for her benefit. It was prayed that the prosecution of the suit for the land be enjoined; that the deed under which Mrs. McCall claimed be decreed to be a forgery; that if genuine it be decreed to be inferior to certain other instruments, and be delivered up and can-celled ; and if it was superior to those instruments, that the petitioner be subrogated to the rights of certain mortgagees, and that the land be sold and the proceeds paid to her. Mrs. McCall demurred on the ground that the petition did not set out anything that required the intervention of a court of equity; that it did not present any question that could not be settled in the trial of the common-law suit which the petition sought to enjoin; that a court of law first had jurisdiction, and the • plaintiff had the right to set up in that court any defense she might have of an equitable nature. At a subsequent term of the court the plaintiff voluntarily struck from the petition the prayers for injunction, and cancellation. Thereupon the defendant made an oral motion to dismiss the petition, for the reason assigned in the demurrer. The court overruled the demurrer and the motion to dismiss, and the case proceeded to trial; there was a verdict for the plaintiff, the defendant’s motion for a new trial was overruled, and she excepted, assigning as. error each of the rulings stated.</p>

<p>1. A motion fór a nonsuit was made upon the ground (among others) of a variance. An order granting the same was passed, but before it was entered an amendment was offered and allowed, without objection, which adjusted the petition to the proof. After the allowance of the amendment no motion of any character u as made by either party, but subsequently the order granting the nonsuit was filed. Held, that it will be presumed that the subsequent filing of the order was under the direction of the judge, nothing to the contrary appearing; and that, when so considered, the order of nonsuit was a judgment that the plaintiff had failed to prove his case as laid in the petition as amended. t</p> <p>2. The evidence was of such a character as to authorize the jury to find that the plaintiff had substantially proved all of the material allegations in the petition as amended ; and it was therefore error to grant a nonsuit.</p>

<p>Complaint. Before Judge Roberts. Telfair superior court. November 18, 1903.</p>

<p>Habeas corpus. Before Judge Fairclobh. City court of Wrightsville. May 13, 1904.</p>

<p>1. The charge of the court as to the meaning and effect of the written contract relied on by the defendant was more favorable to the plaintiff than he had any right to demand'or expect.</p> <p>2. The court below should, however, have granted the plaintiff’s motion for a new trial, as the evidence demanded a finding in his favor of actual damages, instead of the merely nominal amount awarded him by the jury.</p>

<p>1. Where, in a suit against a railway company, the question whether the engineer of a running train, when between a blow-post and a public crossing, blew the whistle of the locomotive in such a manner as to produce an unusual and unnecessary-noise, and thereby frightened a team of mules and caused them to run away and kill the plaintiff’s husband, is one of the issues in the case, it is erroneous to charge the jury, without qualification, “that the plaintiff in the case could not recover if the blowing of the whistle was at any point within four hundred yards of the crossing, and if that alone caused the mules to become frightened and kill her husband.” And when the jury are not, elsewhere in the charge, clearly instructed that the defendant company would be liable although -the blowing of the whistle was at a place where the law required it to be sounded, if it was blown in a way which produced an unnecessary and unusual noise, and the unnecessary and unusual character of the noise caused the fright of the mules and the injury complained of, such erroneous charge is, in the event of a verdict for the defendant, cause for a new trial.</p> <p>2. An instruction of the court upon a given question in the case is not erroneous because it does not conform to an alleged theory of one of the parties, when such' theory, under the evidence submitted, is itself erroneous.</p> <p>3. When, in a case of this character, the court clearly and fully instructed the jury that the law required the blow-post to be placed at a point four hundred yards distant from the crossing, and that, if there was no blow-post at such point, it was the duty of the engineer of a train approaching the crossing to blow the whistle there anyhow, the fact that the court charged the jury that if they found “ that there were two tracks and they were very close to each other, and both belonged to the defendant company, if the blow-post was erected upon either or near it, or so near as to be seen readily by the engineer in passing, and in fact that blow-post was used as the blow-post for this line, that would be -a sufficient compliance with the statute,” was not cause for a new trial.</p> <p>4. There was no error in leaving to the jury the determination of the meaning of the expression “just crossed over,” as applied to persons who have passed over a railroad crossing in advance of an approaching train.</p>

<p>Complaint. Before Judge Lewis. Putnam superior court. September term, 1903.</p> <p>Mrs. Garrard sued Preston and Brown, as partners, on a promissory note, dated February 24, 1899, and due one year after date. Preston filed a plea, setting forth that the firm was dissolved on December 27, 1900; that all debts of the firm were assumed by Brown; that the dissolution was known to the plaintiff’s agent who acted for her in making the loan for which the note was given; that the fact that Brown had assumed the debts of the firm was also known to this agent, who recognized Brown as the principal debtor by treating with him as such thereafter; that on June 18, 1902, the plaintiff, through her agent, agreed with Brown, upon a sufficient consideration, that she would extend the time of payment of the note sued on to February 24, 1903; and that this extension was granted without the knowledge or consent of the defendant. The plea alleges, that by reason of these facts the defendant became, after the dissolution of the firm, merely a surety for Brown upon the debts of the firm which he had assumed to pay; and that the extension of the time of payment of the note sued on, without the defendant’s knowledge or consent, released him from all liability on the debt. The court struck this plea on oral motion, and Preston excepted.</p>

Ejectment. Before Judge Holden. Wilkinson superior court. October 5, 1903. ** The plaintiffs claimed title to the land in dispute as heirs at law of M. N. Murphey. The defendant also claimed under M. N. Murphey, and relied on an instrument in the following form: “ Georgia, Wilkinson County.

<p>This being an action against a railroad company for injury to stock caused by the running of a train, and the evidence being of such a character that the jury might find that the presumption of negligence against the company had not been rebutted, the judgment of the trial judge in refusing to set aside a verdict in favor of the plaintiff will not be disturbed.</p>

<p>Complaint. Before Judge Butt. Harris superior court. October 14, 1903.</p>

Exceptions to auditor’s report. Before Judge Butt. Harris superior court. October term, 1903.

<p>Levy and claim. Before Judge Littlejohn. Marion superior court. October 27, 1903.</p>

.Action for damages. Before Judge Roberts. Terrell superior court. November 23, 1903. The petition of L. C. Ford alleged that D. S. Fargason, trustee, of said county, had injured and damaged him in the following manner. On January 11, 1902, the defendant by written contract (set out) leased to petitioner a four-horse farm for a period of five years, beginning January 11, 1902.

<p>Mere knowledge by a lender of money that a borrower intends to use it for an illegal or immoral purpose will not prevent a recovery of the money loaned ; and a plea to an action to foreclose a mortgage on realty, given to secure the payment of a note, which sets up that the money loaned was used for an illegal and immoral purpose, to wit, the suppression of a threatened criminal prosecution of the defendant’s husband, and that the lender knew or had reasonable grounds to suspect the purpose for which the money was borrowed, but which does not charge that the lender participated in the illegal-transaction or did anything to further the consummation of the unlawful design, sets forth no valid defense and is properly stricken on demurrer.</p>

<p>Ail unaccepted check, drawn in the ordinary form, not describing any particular fund or using words of transfer of the whole or any part of any amount standing to the credit of the drawer, does not amount to an assignment at' law or in equity of the money to the credit of the drawer.</p>

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

<p>Trover. Before Judge Spence. Decatur superior court. January 23, 1904.</p>

Complaint. Before Judge Mitchell. Thomas superior court. October 20, 1903. The petition of Ansley against Hightower alleged: Defendant is indebted to plaintiff $1,944, with interest thereon from June 28, 1902, at seven per cent.

<p>1-, An order allowing a process to be amended “as in terms of the law” is a judgment authorizing any amendment necessary to perfect the process. Such an order passed at the appearance term is binding until reversed or set aside, and the amendment authorized thereunder may be made nunc pro tunc at the term following that at which the order was passed.</p> <p>2. Attached to the original, petition was the form of a process, but with no signature of the clerk thereto. To the copy of the petition which was served upon the defendant was attached a complete process duly signed. Held, that the defect in the process attached to the original petition was amendable, and might be cured by the clerk’s attaching his signature thereto nunc pro tunc.</p>

<p>Where, to an action in a county court for less than fifty dollars, the defendant files a plea of set-off in which he claims more than that sum of money, and judgment is rendered for the plaintiff, the defendant may appeal the case to a jury in the superior court. •</p>

<p>■ Equitable petition. Before Judge Mitchell. Colquitt superior court. December 3,1903.</p> <p>cited Civil Code, § 4837.</p> <p>cited Civil Code, §§ 3921, 5468 ; Ga. B. 45/201, 203 ; 52/632 ; 63/518; 98/240; 106/834; 43/78; 46/538.</p>

<p>Equitable relief will not be granted at the' instance of those who have been guilty of gross laches. Therefore it was proper to dismiss, on demurrer; an equitable petition for the cancellation of a deed on the ground that it was fraudulently procured, and for other equitable relief, when it appeared that the alleged fraud was practiced more than forty-six years, and the right of action, if any, accrued more than forty-one years, before the petition was filed, that the parties to the-deed had long since been dead when the suit was brought, and no excuse whatever was given for the long delay.</p>

<p>Trover. Before Judge Covington. City court of Moultrie. November 18, 1903.</p>

<p>Complaint for land. Before Judge Mitchell. Colquitt superior court. December 12, 1903.</p>

<p>2. When a case had been referred to an auditor, to whose report exceptions of fact had been filed, and the parties agreed that the jury should not pass upon each exception of fact, but that all matters of fact should be submitted as a whole to the jury to decide either for the plaintiff or the defendant, the evidence to be used before the jury being the evidence filed by the auditor, it was not error for the judge to submit all the issues without first approving the exceptions of fact.</p> <p>2. Possession of land remaining with a grantor and never surrendered will be deemed to be held under the grantee. Such possession will be construed as consistent with the grantor’s recorded deed, and is not notice to an innocent purchaser from the grantee of any mistake in the deed whereby a larger tract was inadvertently conveyed than the par-ties to the deed intended.</p> <p>S. The words in the descriptive clause of a deed, “ being the same land owned and occupied by me,” occurring immediately after the [description of the land by metes and bounds, did not create any ambiguity in the deed.</p>

<p>Equitable petition. Before Judge Mitchell. Brooks superior court. November 5, 1903.</p> <p>S. S. Rountree, as surviving partner of Rountree & Company, brought an equitable action, in the superior court of Brooks county, against Mrs. M. L. Finch, of that county, and Mrs. Jimmie L. Boone, of Fulton county. The-petition alleged, that on March 1, 1887, Mrs. Finch executed to the Georgia Loan and Trust Company a deed to a certain house and lot in the town of Quitman, to secure a loan of three hundred dollars, payable five-years from date, with interest at eight per cent., payable semiannually on the first days of March and September of each year; that on July 31, 1888, Mrs. Finch gave a mortgage on the same property to J. P. Brooks, to secure a note for four hundred and -thirty dollars, which note and mortgage were transferred to Rountree & Company; that the mortgage was recorded August 1, 1888; that on January 2, 1892, the Georgia Loan and Trust Company 'conveyed the property, by quitclaim deed, to Mrs. Jimmie L. Wood, who subsequently became by marriage Mrs. Jimmie L. -Boone, the deed reciting that Mrs. Finch had sold the house and lot to Mrs. Wood by transferring to her the bond for title, and that Mrs. Wood had fully paid the debt; that this deed was recorded in 1892; that petitioner did not know how much of the three-hundred dollars due the company Mrs. Boone paid, but recognized that she had a prior claim on the property for whatever amount she did pay; that even if she paid the full amount of three hundred tolars, the rents, issues, and profits from the property amounted to more than the interest on the debt; that the mortgage was foreclosed in 1898, in the name of Brooks, for the use of Rountree & Company, and the fi. fa. levied upon the property, which was claimed by Mrs. Boone, the claim affidavit being made by J. B. Finch as her agent; that on October 15, 1900, petitioner, mailed a registered letter to Mrs. Boone, which her receipt showed she received the next day, which letter contained the following language: “ The lien of the mortgage [given by Mrs. Finch to Brooks and transferred to Rountree & Co.] attached before you secured any interest in the property. We recognize your right to be paid $300.00 with interest thereon, after deducting the rents, issues, and profits of the property received by the Georgia Loan & Trust Company and by you, and we desire to pay you this amount, and will thank you to give us a statement showing it, so that we can pay you and have the land sold and the proceeds of the sale applied, first to the reimbursement of us of this amount and enough of the balance to satisfy the execution issued by the superior court of Brooks county in favor -of J. P. Brooks for the use of Rountree & Co. vs. Mrs. M. L. Finch;” that petitioner, in January, delivered a copy of this letter to J. B. Finch, who as agent for Mrs. Boone made the .claim affidavit; that neither of them replied to the letter; and that petitioner “ has no way of ascertaining the exact amount for which she has priority.” By amendment it was alleged: “That M. L. Finch is the mother of Mrs. J. L. Boone, and that they entered into a fraudulent, agreement to have the Georgia Loan & Trust Co. make a deed to the property described in said petition to Mrs. Boone, instead of to Mrs. Finch, by reason of the fact that the consideration expressed is so grossly inadequate as to make it a fraud upon complaint, said property at the time of said transaction and at this time being worth not less than $1,000. Plaintiff further alleges that said Mrs. Finch still resides upon said property, and has resided upon said property ever since said transaction was made, same as she did before, and that said transaction was made for the purpose of hindering, delaying, and defrauding the plaintiff in the collection of his just debt.” •</p> <p>The prayers of the petition were: (1) that an accounting be had to determine what amount was paid by Mrs. Boone to the Georgia Loan & Trust Company, and to ascertain the value of the house and lot and of the rents, issues, and profits thereof; (2) that petitioner “ be allowed to pay to . . Mrs. Boone the amount paid by her to the Georgia Loan & Trust Company, and the interest thereon, after. deducting the value of the rent, issues, and profits accrued; that when said amount shall have been paid into the registry of the court, that said property may be sold and the proceeds thereof may be appropriated, first, to the expense of the sale, second; the reimbursement of- your petitioner of the amount so paid into the registry of the court as aforesaid, and the balance, or so much thereof as may be necessary, to the payment of the costs of this suit and the amount due on said execution;” (3) that such sale of the property shall divest all interest of Mrs. Finch and Mrs. Boone therein, and that they and all -claiming under them be “ ejected therefrom,” and the purchaser at the sale put in possession. There was also a prayer for general relief. After several terms had elapsed, Mrs. Boone filed a demurrer to the petition, upon the grounds: (1) that as she was the only party against whom any substantial relief was prayed, and as the petition showed she lived in Fulton county, the court was without jurisdiction; (2) that no facts were set out showing that the defendant had been guilty of fraud or had hindered and delayed petitioner in the collection of his debt; (3) that the petitioner was “ not entitled to any accounting for rents from this defendant.” When the case came on for trial, the court, on motion of the petitioner’s counsel, “ dismissed the demurrer,” but upon what ground the record does not disclose. The court then, on motion of counsel for the defendants, dismissed the petition, because it failed to set forth a cause of action. The plaintiff excepted.</p>

<p>Attachment. Before Judge Mitchell. Berrien superior court. December 22, 1903.</p>

<p>1. As against the defendant it was incompetent to prove that the witnesses regarded the pool as a nuisance, and had contributed to a fund to secure its abatement.</p> <p>2. There were no contradictory statements, and nothing in the previous testimony of the witnesses which authorized an inquiry, on cross-examination, as to their contribution to such fund.</p> <p>3. There was nothing in the pleadings requiring the judge to charge as to intervening or preponderating causes, and no request for an instruction on that subject.</p> <p>4. The charge that the nuisance referred to in the declaration must be the “ immediate and proximate cause ’ ’ of the death of the plaintiff’s husband before she could recover was not error, it being apparent that the word “immediate ” was no't used in the sense of “speedy,” but rather iii contradistinction to “ remote,” and as a synonym for “ proximate,,”</p> <p>5. The use of,the word “disease,” instead of “malaria,” in the charge of the court was not error, and not calculated to harm the plaintiff, but was in conformity.with the allegations of the petition.</p> <p>fi. The failure of the court to charge on the subject of expert testimony was no cause for a new trial, there having been no request for a charge on that subject.</p> <p>7. The charge fully and fairly submitted all the issues presented, the evidence was sufficient to sustain the finding, and the court did not err in refusing a new trial.</p>

<p>Trespass. Before Judge Roberts. Wilcox superior court. October 19, 1903.</p> <p>cited Civil. Code, §§5246-7; Ga. R 16/521; 30/619; 39/548; 53/685; 68/18,28; 79/139; 86/108 (4); 96/421 (1), 584 (2); 109/496; Gr. Ev. (15th ed.) §§576-7-8.</p> <p>cited Civil Code, §§ 5142-3-4, 5149, 5245 — 6; Ga. R 29/287; 44/514; 66/18, 28, 29; 72/173 (6); 119/530;. 49/19; 55/326; 58/226; 59/738; 35 L. R. A. 338, note.</p>

<p>Equitable petition. Before Judge Roberts. Montgomery superior court. August 24, 1903.</p>

Action on contract. Before Judge Adams. City court of Dublin. September 12, 1903.

<p>Action for damages. Before Judge Seabrook. Laurens superior court. November 3, 1903. ■</p>

<p>Under the ruling in Green v. Equitable Mortgage Company, 107 Ga. 536, the charge complained of was erroneous.</p> <p>Affidavit of illegality. Before Judge Lewis. Jones superior court. January 12, 1904.</p>

Complaint. Before Judge Sheffield. Olay superior court. September 21, 1903. Mrs. Georgia Allen, for herself and as next friend of her three minor children, brought suit against Hurst.

<p>Complaint. Before Judge Spence. Thomas superior court December 21, 1903.</p> <p>Cited: Civil Code, § 3732; Ga. B. 80/472 (4); 83/322; 102/561 (Í); 64/243 (2).</p>

<p>Appeal. Before Judge Spence. Decatur superior court. November 10, 1903.</p>

<p>1. The plaintiff not only failed to prove the alleged agreement under which he claimed the equitable title to the insurance policy, the proceeds of which he sought to recover, but also failed to establish any lien thereon which he could successfully assert as against the defendants.</p> <p>2. The action being one by a trustee in bankruptcy of a. partnership against an administrator and others claiming under his intestate, a member of the partnership was incompetent to testify concerning transactions had by him with such intestate respecting the subject-matter of the suit.</p> <p>3. Neither admissions nor promises made to one by another, acting in an individual capacity before he became the guardian of minor children, can properly be held to be binding upon them, since the rights of the wards could not be affected by the conduct of any one who was not at the time their legal representative.</p> <p>4. While the trial judge may have committed error in some of his rulings touching the admissibility of evidence, the plaintiff below was not prejudiced thereby; as, had the court in each instance ruled in his favor, a finding against him would nevertheless have been the only logical result of the trial.</p> <p>5. That the court directed a verdict against the plaintiff not only as to those of the defendants who filed an answer to the. suit, but also in favor of the defendants who did not, affords no reason, under the peculiar facts of this case, why there should be a reversal of the judgment rendered.</p>

<p>Action on bond. Before Judge Roberts. Irwin superior court. September 8, 1903.</p>

<p>Injunction. Before'Judge Roberts. Wilcox superior court. May 24, 1904.</p>

<p>Action for damages. Before Judge Butt. Muscogee superior court. June 8, 1903.</p>

<p>Probate of will. Before Judge Gary. Richmond superior court. August 24, 1903.</p>

Equitable petition. Before Judge Seabrook. Chatham superior court. February 25, 1903.

<p>1. Where a deed was properly attested by A. B. and “ S’. H. H.,” notary public, but registered as having been executed in the presence of A. B. and “ T. H. H.,” notary public, such clerical error did not destroy the character of the deed as constructive notice.</p> <p>2. Where one enters into possession of a part of a tract of land under color of title which is duly recorded, and thereafter conveys the land to subsequent grantees, who thereupon enter, but who fail to record their deed, such subsequent grantees may tack their possession to that under the duly recorded deed, and acquire a good prescriptive title at the expiration of seven years from the entry under the registered instrument.</p> <p>3. The decisions are conflicting as to whether record was necessary in order to make possession of a part extend to the limits of a lot or known tract described in the deed.</p> <p>4. The older and controlling cases of Morrison v. Mays, 19 Ga. 296, Griffin v. Sketoe, 30 Ga. 300, and Wiley v. Warmoek, 30 Ga. 701, are, however, to the effect that record was not necessary.</p> <p>5. Whether the Civil Code, § 3587, adopted one of the conflicting lines of authority and made the same statute law, is not involved in the present case, inasmuch as the deeds relied on were not made since the adoption of the Code of 1895.</p>

<p>Accusation of cheating and swindling. '^ Before Judge Reynolds, City court of Waycross. May 10, 1904.</p>

<p>Indictment for murder. Before Judge Lewis. Putnam superior court. May 10, 1904.</p>

<p>Indictment for murder. Before Judge Felton. Crawford' superior court. May 31, 1904.</p>

<p>Indictment for larceny from the house. Before Judge Freeman. Troup superior court. May 27, 1904.</p>

<p>Accusation of misdemeanor. Before Judge Prior. City court of Hall county. May 21, 1904.</p>

<p>Certiorari. Before Judge Mitchell. Berrien superior court. June 3, 1904.</p>

<p>Indictment for receiving stolen goods. Before Judge Felton. Bibb superior court. June 7, 1904.</p>

<p>Indictment for receiving stolen goods. Before Judge Felton. Bibb superior court. June 7, 1904.</p>

<p>Indictment for murder. Before Judge Eelton. Bibb superior court. June 7, 1904.</p>

<p>Indictment for murder — conviction of voluntary manslaughter. Before Judge Felton. Bibb superior court. June 7, 1904.</p>

<p>Accusation of cheating and swindling. Before Judge Hamilton. City court of Floyd county. June 21, 1904.</p>

<p>0 Indictment for incest. Before Judge Evans. Motion for new trial overruled by Judge Daley. Emanuel superior court. June 6, -1904.</p> <p>The accused, a married man, was indicted for incestuous adultery with his brother’s unmarried daughter. She testified, that the intercourse took place on the 22d of February, 1902, at his house, to which he had taken her from the home of her parents, for a ten -days’ visit; that it occurred the second night of her stay,and that he took her back to her parents the next day, having promised to do so if she would not tell his wife what had happened; ■ that she told her mother of it in the following August, telling the time and the circumstances as related in her testimony; that on the 22d of the- following November,, she gave birth to a child, as a result of the intercourse; and that she had never had sexual intercourse at any other time. The only others who testified were her mother and a midwife. The mother corroborated the daughter’s testimony as to the visit to the defendant’s house, the date, the length of her stay, and the time she had been expected to remain, and as to what she said in August; also as to the birth of the child. The midwife testified, that the child was born November 25, 1902; that it “appeared to have come to its time, according to what the mother had told ” her; that it appeared, from its shape, size, etc., to be a full grown child; and that it “ favors ” the defendant. The motion for a new trial was on the grounds that the verdict was contrary to law and the evidence.</p> <p>cited Ga. R. 52/106; 66/346; 92/584; 110/151 (5); 113/192; 3 Tex. App. 132; 9 Iowa, 582.</p> <p>cited Ga. R. 44/215 (4); 52/403 (2); 55/220 (3); 56/356 (4); 73/572; 109/165.</p>

<p>Complaint. Before Judge Roberts. Terrell superior court. November 25, 1903.</p>

<p>Indictment for seduction. Before Judge Littlejohn. Marion superior court. May 28, 1904.</p>

<p>Action for damages. Before Judge Griffin. City court of Douglas.' August 21, 1903.</p>

<p>Certiorari. Before Judge Mitchell. Berrien superior court, June 3, 1904.</p>

Indictment for larceny from the house. Before Judge Eoan. Fulton superior court. June 1, 1901. Julius'Bone and Cliff Brewer were jointly indicted for larceny from the house.

<p>Accusation of assault and battery. Before Judge McRae. City court of McRae. June 24, 1904.</p> <p>Moody was charged with having committed an assault and battery upon Davis. From the evidence it appeared that Moody, as marshal of McRae, arrested Davis, catching him from behind and pinioning his arms to his side. Davis testified that, while he made no resistance, he did not voluntarily go to the guard-house, but forced Moody to carry him. Moody contended that Davis had a cane in his pinioned hands and was endeavoring to strike him with it. Davis testified that when they reached the guard-house, Moody shoved him in, jerked the stick out of his hands, struck him over the head twice, and subsequently beat him violently in the face. Moody contended that Davis pulled him to the floor and refused to turn him loose, and that he struck Davis in the face simply to get away. Moody, after a verdict of guilty, moved for a new trial, because, over objection, the court allowed Davis’s sou to testify that he (the witness) told Moody, as he was coming out of the. guard-house, that he wanted to get a doctor for his father; whereupon Moody said he was doctor enough for him.” It is also assigned as error that the court refused to charge, “ If you believe that Davis resisted, the defendant would be justified in using such force as was necessary to compel submission and to defend himself.” Complaint is also made of the following charge to the jury: “ I charge you that when an officer has a prisoner in his custody, he is authorized to use all the force necessary to make the arrest effectual; and if the prisoner resisted, the defendant would be justified in using such force as was necessary to compel submission; but I charge you that an officer can not suffer himself to be overcome by any opprobrious words or abusive language while he is acting as a minister of the law, armed with legal power and exerting it over a prisoner; he can not chastise his prisoner for insolence; he can not yield to his passions and take the administration of punishment into his own hands, but can only use such force as is necessary to make the arrest effectual. If you find from the evidence that the prosecutor resisted or assaulted the arresting officer, look to the evidence and see whether or not the force used by the officer was in proportion to the resistance used. If so, you should acquit the defendant. But if you should find from the evidence that the assault was greater than was necessary to be used in making the arrest and holding the prisoner, it would be your duty to return a verdict of guilty against the defendant.” The court refused to grant a new trial, and the defendant excepted.</p>

<p>Indictment for murder. Before Judge Freeman. Coweta superior court. June 20, 1904</p>

<p>Levy and claim. Before Judge O’Steen. City court of Douglas. September 23, 1903.</p>

<p>Action on bond. Before Judge Carter. City court of Baxley. October 5, 1903.</p>

Trover. Before Judge Calhoun. City court of Atlanta. October 26, 1903.

<p>Complaint. Before Judge Henderson. City court of Douglas. January 6, 1904.</p>

<p>Claim. Before Judge Reid. City court of Atlanta., November 23, 1903.</p>

<p>Action for slander. Before Judge Parker. Johnson superior court. September 22, 1903.</p> <p>The allegations of the petition were in substance as follows: On a date named, defendant maliciously used of and concerning plaintiff the following false and defamatory words: “I have always known that he [meaning plaintiff] was unfit for the ministry and an improper person to be allowed to preach, and was too dangerous and indiscreet,” saying also that he had indorsed plaintiff, knowing him to be inefficient for eighteen years. These words were uttered at and during a quarterly conference of the Methodist Episcopal Church, South, then being held in a named county, and in the presence of divers persons named. The words were spoken of plaintiff “ in reference to.his. office and profession of á minister of the gospel,” he “ being then and there a local preacher of the Methodist Church, South,” and were calculated to injure and did injure him in his said office. The use of said words caused plaintiff to be deprived of his license as a local preacher, and to lose scholarships in a female college for his children, the value of such scholarships being alleged. The defendant demurred, on the following grounds: (1) No cause of action is set forth; (2) the words are not actionable per se, and are not supported by allegations of special damage, or by such innuendo as would make them actionable; (3) there is no allegation that defendant knew the words to be false, or that plaintiff was engaged in any profession, or that he has been damaged therein; (4) the allegations, taken as a whole are too vague, uncertain, and indefinite, and the special damages alleged are too remote and speculative to be the basis of a recovery; (5) it is not alleged that plaintiff was a member of or had a license as a local preacher in any particular church, nor that the words used were in reference to his said office in the ministry in such church; (6) plaintiff sues in his private eapácity and alleges damage in a professional capacity; (7) the office of a local preacher is not a profession, within the meaning of the law upon which the suit is based; and plaintiff does not allege any special benefits accruing to him as a local preacher, or emoluments of any kind. The demurrer was sustained, and the plaintiff excepted.</p>

<p>Complaint. Before Judge Overstreet. City court of Sylvania. January 12, 1904.</p> <p>Cited by counsel: Penal Code, §§ 1078; Civil Code, §5707, 5394, 3723; Code of 1882, §4631; Ga. R. 33/338 (1); 40/476 (3); 72/673; 11/643 (2); 7/64.</p>

Petition for specific performance. Before Judge Littlejohn. Sumter superior court. December 2, 1903.

<p>Action for damages. Before Judge Adams. City coúrt of Dublin. October 16, 1903.</p>

<p>1. It js the duty of the receiver of tax returns to issue executions for taxes against unreturned wild lands. Pol. Code, § 821. Whether the provisions of the act of December 13,1882 (Acts of 1882-3, p. 47), were omitted unintentionally, or because of a question as to the sufficiency of the title, this code section is exhaustive of the law on the subject. A tax fi.’ fa. issued against unretumed wild land by the tax-collector is without authority of law, and a sale of land thereunder is void.</p> <p>2. Where a plaintiff fails to make out a prima facie case, a verdict for the defendant should not be directed, but a judgment of nonsuit should be entered. The judgment of the court is affirmed with direction that plaintiSs have leave to vacate and substitute therefor a judgment of nonsuit, when the remittitur is made the judgment of the court below.</p>

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

Complaint. Before Judge Sparks. City court of Brunswick. November 12, 1903. The suit was for $122.91, alleged to be a balance due on a certain shipment of cross-ties.

<p>Affidavit to evict tenant holding over. Before Judge Parker. Ware superior court. December 30, 1903.</p>

<p>Petition for injunction. Before Judge Parker. Ware superior court. February 29, 1904.</p>

<p>1. It is the duty of a street-railway company, in operating its cars along a public road, not to interfere with the rights of individuals using such road by other modes of travel, by making unusual and unnecessary noises, such as are likely to frighten animals along such road; and for damages resulting from a breach of such duty the company is liable.</p> <p>2. Civil Code, § 2234, providing that “ all engine-drivers and conductors must cause the trains which they respectively drive and conduct to come to a full stop within fifty feet of the place of crossing,” where the tracks of separate . and independent railroads cross each other, does not apply to a street-railway so as to compel it to stop its cars before crossing a steam-railroad track,</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. October 19, 1903.</p> <p>Ga. R. 1/367; 84/148; 90/756; 106/440; 107/223; 112/526; Black, Judg. §§604, 968.</p>

<p>1. While the allegations of the petition as to negligence were somewhat vague and indefinite, the defendant did not demur, and the evidence for, the plaintiff made 'out her case as laid sufficiently to withstand a motion for a non-suit.</p> <p>2. Grounds of a motion for a new trial, complaining of the refusal of the court to charge stated contentions of the complaining party, but which do not show that any written requests to charge were submitted to the trial judge, will not work the grant of a new trial, unless 'the instructions referred to were demanded.</p> <p>3. The charge of the court instructing the jury to determine whether the motorman of the defendant’s car saw the frightened condition of the horse which was alleged to have run into the plaintiff’s buggy, and failed to stop or check the car, while not aptly worded, is not of itself ground for a new trial.</p> <p>4. There is no merit in a ground of a motion for a new trial complaining that the court, in giving a legal and pertinent charge, failed to charge, in connection therewith, a contention of the complaining party which was also applicable to the case on trial.</p> <p>5. The plaintiff’s buggy was run into by a frightened horse drawing another buggy, and she was injured. A car of the defendant was passing at the time. She did not allege in her petition that the fright of the horse was originally caused by any act of the defendant, or that the car was running too fast or with any unusual or unlawful noise ; but merely that, after seeing the frightened condition of the horse, the motorman .failed to stop his car, thereby aggravating the fright of the horse and causing him to run away. Held: No presumption of negligence arose against the defendant upon proof of the injury, but it was incumbent upon the plaintiff to prove negligence as alleged. It was therefore error to give in charge to the jury the provisions of the Civil Code, § 2321.</p>

<p>1. Where a street-railroad company voluntarily permits passengers to transfer from one of its cars to another and continue their journey without the payment of additional fare, it is reasonable to require, as a condition precedent to the exercise of this right, that the passenger shall tender to the conductor of the second car a printefL transfer check which must be used within a time indicated by punch marks on the check, provided a car upon which the passenger can be conveniently and comfortably transported passes the transfer point within tire time so limited.</p> <p>2. A person who fails to comply with such requirement, and who refuses to pay fare, can not recover for an-expulsion from the car, when he does not show that his failure to have a valid transfer check was due to the fault of some employee of the company having authority in such matters.</p> <p>3. It follows that no recovery can be had where the initial car does not reach the transfer point until after the time indicated by the punch marks on the check, and the passenger voluntarily leaves the car before it reaches such point and makes an unsuccessful attempt to walk to the transfer point before the time limit expires. In such a case it is the duty of the passenger to. remain on the car and give the conductor an opportunity to make arrangements for his transportation on the transfer car; and this is true even though, it is the custom of the company not to issue new transfer checks where the initial car is delayed.</p>

Prohibition. Before Judge Lumpkin. Fulton superior court. June 8, 1904. Held: made absolute. Ormond, as notary public and ex-officio justice of the peace, excepted. cited, as to right of State, through which extradited prisoner is transported, to interfere with the extradition agent’s custody of the prisoner: Const. U. S art. 4, sec. 2, par. 2 (Civil Code, §6004); Rev. St. U. S. §§ 5278— 9; 24 How. 66; 51 How.

<p>1. While an agent’s place of business is not necessarily the place of business of his principal, yet where the business of the principal is conducted at the agent’s place of business and at no other place, the place of business of the agent is the place of business of the principal. -</p> <p>2. Where an insurance agent represents several companies in a given city, and transacts their business in an office maintained at his own expense, this office is the “place of doing business” of such of the companies as have no other place in such city for the transaction of their business.</p> <p>3. A corporation is not a citizen within the meaning of that clause of the 14th amendment to the constitution of the United States which prohibits the States from making or enforcing any law which abridges the privileges or immunities of citizens of the United States. It follows that Civil Code, § 2110, embracing what is commonly known as the “Dodson law,” regulating the contracts of insurance companies, does not violate that clause of the 14th amendment.</p> <p>4. The General Assembly may, for purposes of legislation, classify persons or subjects, provided the classification is not arbitrary or unreasonable. The law referred to in the preceding note does not make an arbitrary or unreasonable classification because it is limited to insurance “companies,” and because it excludes from its operation losses sustained by reason of the destruction of'specified'kinds of personal property.</p> <p>5. The evidence warranted the verdict, and there was no error requiring a new trial.</p>

<p>Petition for injunction. Before Judge Kimsey. Hall superior court. May 17, 1904.</p>

<p>Money rule. Before Judge Henry. Floyd superior court. January 26,1904.</p> <p>cited Ga. R. 107/532; 100/367; 84/34; 66/620; 3 Otto, 428-9.</p> <p>cited Civil Code, § 2791; Pol. Code, §§883, 888; Ga. R. 114/564; 100/367.</p>

Action for damages. Before Judge Adams.. City court of Dublin. December 8, 1904. Skipper, a minor, by his next friend sued, the Southern Cotton Oil Company for damages on account of personal injuries. From his petition these facts appeared: He was employed by the defendant to sew heads in round bales of cotton at its ginnery.

<p>1. Where real estate is purchased by a partnership with partnership funds, or is acquired as the result of a partnership transaction, and is used by the firm solely for the purpose of partnership profit, it is in a legal sense partnership property.</p> <p>2. Under such circumstances, the fact that the partnership was originally formed for the purpose of carrying on a warehouse and commission business (without any limitation, however, upon its power to extend its operations to other lines of business), and that the real estate was devoted to a farming venture, does not deprive the land of its character as partnership property.</p> <p>3. The legal title to real estate can never vest in a partnership as such, but is in the partners as tenants in common. Upon the dissolution of an insolvent partnership, however, by the death of one of the partners, the survivor may convey such an equitable interest in the entire property as will enable his vendee to compel a conveyance by the heirs of the deceased partner of the legal title to the interest of their decedent.</p> <p>4. An assignment of error in a bill of exceptions, complaining that the decree rendered by the court .did not follow the verdict of the jury, is without merit when it appears that had the decree been rendered as urged, it would have been contrary to law.</p> <p>5. One whose only interest in the litigation is as stockholder of a corporation which is a party thereto is not thereby incompetent to testify as to transactions and communications with a deceased opposite party at interest.</p> <p>6. A witness is not incompetent to testify by reason of the provisions of the Civil Code, § 5269, when his evidence does not reíate to transactions or communications with the deceased opposite party at interest.</p>

<p>1. Before a municipality can acquire by dedication an easement over a tract of land, for use by the public as a street, there must be an acceptance of the easement by the municipality.</p> <p>2. Such acceptance may be shown by proof that the municipal authorities assumed control over the street; but acceptance will not be implied as to a portion of a street laid out by the owner of the land but over which the municipal authorities did net undertake to exercise any control.</p> <p>3. While prescription does not run against a municipal corporation with respect to land granted to it for the use of the public, yet a municipal corporation may, by abandonment, relinquish its control over a street which has been dedicated to it for public use.</p> <p>4. Under the evidence submitted to the trial judge, it ujps error to refuse an interlocutory injunction.</p>

Action for trespass. Before Judge Parker. Camden superior court. October term, 1903. Clark brought an action of trespass against White and others, for cutting timber upon a tract of • eighty-seven acres. Clark claimed, title by prescription under color. It appeared that he bought the land in 1877, went in possession in 1878, built a house, cleared and fenced three or four acres, lived on the place five years, and then moved off.

<p>Action for damages. Before Judge Sparks. City court of Brunswick. October 23, 1903.</p> <p>Coakley sued the Southern Railway Company in Glynn county, on account of personal injuries from the derailment of the defendant’s train, on which he was a passenger, while it was running on the tracks of the Atlantic Coast Line Railroad Company, in Liberty county, Georgia. The petition alleged that “the Southern Railway Company is, and was,” at the time the injury occurred, “a non-resident railroad corporation, incorporated under the laws of Virginia, and with its home office in that State. It has an office, agent, agency, and place of doing'business in Glynn county, Georgia. Said defendant has no office, agent, or agency in Liberty county, Georgia.” The court sustained a demurrer on the ground, among others, of want of jurisdiction.</p> <p>Citations by counsel, in addition to those in the decision: Get. R. 90/520; 91/222; 94/780; 49/355; 66/558; 77/585; 79 / 234; 112 / 655; Hutch. Car. § 514.</p>

<p>Complaint. Before Judge Carter. City court of Baxley. October 29, 1903.</p> <p>J. S. Scofield’s Sons Company ’ sued Evans & Pennington on an open account. The defendants filed a plea denying all the material averments of the petition. The only evidence introduced at the trial was the testimony of J. S. Scofield. He testified, on direct examination, that from his connection with the plaintiff, he was “ familiar with the account sued on,” and that it was correct, due, and unpaid. On cross-examination he testified : “Evans & Pennington did not give us any verbal order for these goods. I have seen neither of them in person about the matter. I have had no talk at all with either of them about the goods or the payment to be made for them.” The court overruled a motion for a nonsuit, and rendered judgment in favor of the plaintiff, for., the amount sued for. The defendants excepted.</p>

<p>1. The lien of a judgment rendered on an unsecured claim of a creditor, within four months prior to the filing of a bankruptcy proceeding by or against his debtor, becomes, under section 67/of the bankrupt act of 1898, null and void if the debtor be duly adjudicated a bankrupt; and, in that event, the invalidity of such judgment lien relates back to the time the judgment was entered. McKenney v. Cheney, 118 Ca. 387, distinguished.</p> <p>2. It follows that such judgment creditor is not entitled to a rule absolute against a sheriff for a failure to make the money on an execution issued on such a judgment, where the defendant in fi. fa. is adjudicated a bankrupt.</p> <p>3. The provisiqns of section 67 / of the bankruptcy act apply to both voluntary and involuntary bankruptcies.</p>

<p>Action for damages. Before Judge Henderson. City court of Valdosta. January 6, 1904.</p>

Action for damages. Before Judge Parker. ' Glynn superior court. January 23, 1904. Mrs. Randolph sued the Brunswick and Birmingham Railroad Company and the Seaboard Air Line Railway for the homicide of her husband, alleging that he was killed by an engine of the latter company on the track of the former, where it crossed a private way.

<p>Complaint. Before Judge Reid. City court of Atlanta. October 17., 1903.</p> <p>cited Ga. R. 73/688; 78/480;' 109/295; Dillon on Mun. Corp. §§450, n. 1; 452,459, 463; Story on Agency, 154, 260, 276-7; 102 U. S. 294; 114 U. S. 190.</p> <p>cited Ga. B. 109/296; 113/501.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. October 21, 1903.</p> <p>The petition of L. J. Boyd against W. R. McArthur and McArthur & Sons Company alleged, in substance: On June 30, 1903, the plaintiff contracted with the defendant company, through W. R. McArthur, its agent and vice-president, for the purchase of a certain piano. The purchase-price was $250, and the plaintiff gave McArthur a promissory note, due in six months and payable to the defendant company, for $100 of this amount, and agreed that on July 2, 1903, he would pay the remainder, $150, either in cash or “ by a draft. ” The defendants immediately delivered the piano at his residence. On the morning of July 2, 1903, he tendered to W. R. McArthur, in satisfaction of the cash payment, a “ draft or due-bill ” of the defendant company, duly indorsed, of which the following is a copy: “$156.80. December 31, 1902. Due Walter A. Taylor, agent Mutual Life Insurance Company of New York, one hundred and fifty-six and 80/100 dollars in part payment of purchase of any new piano he may select, the price of said piano to be at our best price. . This due-bill transferable. [Signed] McArthur & Sons Company, per W. R. McArthur, Y. P. [Indorsed] Transferred to the order of L. J. Boyd. [Signed] Walter A. Taylor, agent Mutual Life Insurance Co.” W. R. McArthur, acting in behalf of the defendant company, recognized the validity of this paper, and said “ he only desired to have Mr. Taylor confirm Mr. Boyd’s selection of the piano and thus carry out the terms of the order,” and refused to accept the paper until Taylor should approve the selection. The plaintiff insisted that he, and not Taylor, should chose the piano, and that he had already. chosen it, but, in order to satisfy McArthur, he caused Taylor to go to the store of the defendant company, July 2, 1903, for the purpose of confirming the selection. Taylor did not find W. R. McArthur, but left for him a note ratifying the selection made by the‘plaintiff. Later, on July 2, 1903, the plaintiff again tendered the due-bill to W. R. McArthur, as agent for the defendant company, in payment of the $150, and McArthur, acting on his own responsibility aud representing the defendant company, upon the advice of his attorney, who was then present, refused to receive it and demanded payment in cash from the plaintiff. The plaintiff declined to return the piano or to pay cash. The plaintiff is a skilled musician, and in purchasing the piano he was acting in behalf of Taylor, the understanding being that in order to compensate the plaintiff for his services in selecting a good piano and obtaining it at the “ best price,” he should be allowed to keep it at his home and have the use and enjoyment of it until Taylor could manage to dispose of it to advantage. Taylor had' attempted to buy the same piauo, and the best price he was able to have made to him was $300. Being unable tc purchase it from the defendant at as good a price as that made to other persons, he induced the plaintiff to act for him, the plaiutiff purchasing on his own responsibility, and being alone known in the transaction. After the defendants had demanded the return of the piano or the payment of $150 cash, and the plaintiff had refused to comply with the demand, the defendants, on July 3, 1904, sent to the plaintiffs’ home) and without his knowledge or consent removed the piano to the storehouse of the defendant company. This was done without warrant or authority of law, and against the protests of his wife, who was present; and the defendants thus 'placed upon him and his wife an unnecessary and wanton indignity. They were guilty of trespassing on his premises with circumstances of great aggravation, for which they should be mulcted in punitive damages. The act of the defendants in entering his home and forcibly depriving him of the possession of the piano was instigated by malice and spite, for the reason that he had obtained the piano in the interest of Taylor at a price at which Taylor had nofc been able to secure it. After the piano had been taken from the plaintiff, the defendants delivered it to Taylor at the same price at which they had sold it to the plaintiff, and took in part payment, at its face value, the same due-bill which had been tendered to them by the plaintiff, thereby recognizing its validity. The plaintiff has been damaged in the sum of $5,000, because of the said conduct of the defendants, which amount he should be allowed to recover of them both jointly and singly, they being joint tort-feasors.</p> <p>The court sustained a general demurrer, and the plaintiff excepted.</p> <p>cited Civil Code, §§ 2894, 2895, 2897; 5 Cyc. 164, 168; 1 A. & E. Ene. L. 409; Ga. B. 37/281; 81/468,474; 87/747.; 95/390; 106/606; 111/760; 112/777, 778.</p> <p>cited Civil Code, §§ 3038, 3886 ; 111 Ga. 760.</p>

<p>A father is not liable for a tort of his minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit.</p>

Action for damages. Before Judge Reid. City court of Atlanta. October 31, 1903.

Attachment. Before Judge Reid. City court of Atlanta. October 10, 1903. An attachment against the Glidden Varnish Company, a non-resident corporation, was executed by service of summons of garnishment on the Ware Manufacturing Company and others.

<p>Motion to set aside judgment. Before Judge Lumpkin. Eulton superior court. October 6, 1903.</p> <p>Mary J. Yan Dyke brought an equitable petition against E. A. Yau Dyke, S. G.-Van Dyke, Kitty V. Anderson, and Alice M. Van Dyke. The case made by the petition is, in brief, as follows: Howard B. Yan Dyke died intestate, November 21, 1895, owning certain described land, and leaving as his heirs at law the plaintiff and E. A. Van Dyke, S. G. Van Dyke, Edgar C. Van Dyke, and Kitty V. Anderson. Edgar G. died testate, in December, 1898, leaving all of his property to the plaintiff. E. A. Van Dyke was appointed administrator of the estate of Howard B: Van Dyke, but did not- take care of or administer the realty in question. He was duly discharged as administrator. On April 12, 1895, Howard B. Van Dyke executed an instrument in the form of a deed to this land, in which instrument, no grantee was named. After his death and on November 30, 1895, E. A. Van Dyke fraudulently inserted therein the name of his wife, Alice M. Van Dyke, as the grantee. E. A. Van Dyke never delivered this instrument to his wife, but still has it in his possession. His wife is, however, in possession of part of the land, and has, by a security deed, conveyed a portion of it to one Benson. Plaintiff is the owner of two fifths of the land in controversy, and E. A. Van Dyke, S. G. Van Dyke, and Mrs. Anderson each own one fifth of the same. Mrs. Alice M. Van Dyke has no interest whatever therein, but is endeavoring to sell and encumber the land, and will do so unless enjoined. The prayers are, that Mrs. Alice M. Van Dyke be enjoined'from selling or encumbering any of the land; “ that the alleged deed from Howard B. Van Dyke to said. Alice M. Van Dyke be canceled and set aside; . that the petitioner’s right and title to two fifths of said lands be declared good and valid; that a writ of partition be issued and the said lands be decreed to be partitioned between this petitioner and the said E. A. Van Dyke and S. G. Van Dyke and Kitty V. Anderson, in proportion to their interests,” and for process. Upon demurrer by Mrs. Alice M. Van Dyke, the petition was dismissed upon the grounds, that there was a misjoinder of parties and causes of action, and that the petition was multifarious. At the same term of the court, the plaintiff moved to set aside and vacate the order sustaining the demurrer and dismissing the petition. The grounds of this motion were, that the petition was not multifarious, and that there was no misjoinder of parties or of causes of action. At the same term the court granted an order calling on Alice M. Van Dyke and the other defendants to show cause, during that term, why the motion should not be granted. The motion not having been reached for a hearing at that term, it was ordered that the hearing be had on a designated date during the next succeeding term. On that date the motion was heard and the court refused to reinstate the case. Thereupon the movant excepted to the rulings of the court in sustaining the demurrer and dismissing the petition, and also to the refusal to reinstate.</p>

Action for damages. Before Judge Reid. City court of Atlanta. November 7, 1903. The petition alleges : The plaintiff’s wife entered a car of the defendant company, and, being very- weak and sick, and the car having started before she could get inside, she had to take a seat in the rear end of it. The conductor commanded her to move up to the front.

<p>In an action against a street-railway company, for damages alleged to havq, been sustained in consequence of the failure of one of its cars to stop at a given station on its line, in response to a signal to do so by a person there intending to board the car as a passenger, it should appear, from the petition, that it was the duty of the company to stop the particular car in question at that station for the purpose of taking on such person as a passenger. The petition in the present case failed to comply with this rule, and was therefore properly dismissed, on demurrer.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. October 14, 1903.</p>

<p>1. After a plea in abatement has been heard on its merits and the plaintiff’s action dismissed, it is too late for him, by a motion to vacate the judgment of dismissal and reinstate his case, for the first time to raise objections to the plea which he had full opportunity to urge against it when the hearing • thereon was had.</p> <p>2. That a plaintiff who voluntarily dismissed his suit did not, before undertaking to renew the same, pay the accrued costs or file an affidavit setting forth his inability from poverty so to do, affords good cause for abating the second suit brought by him; and after a plea in abatement based on this ground has been duly filed, the plaintiff can not, by offering to pay the costs or actually paying the same to the officers of court, defeat the right of the defendant to insist on his plea and thus bring about a dismissal of the pending suit.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. November 27,1903.</p>

Action for damages. Before Judge Reid. City court of Atlanta. January 4, 1904. Mrs. McEwen sued tbe Atlanta Railway and Power Company for injuries alleged to have been received by being thrown from her seat in a street-car, in consequence of the defendant’s negligence in running at a high and dangerous rate of speed around a sharp curve.

<p>Complaint. Before Judge Calhoun. City court of Atlanta. December 16, 1903.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. January term, 1904.</p>

Complaint. Before Judge Eoan. Clayton superior court. August 24, 1903. The defendants gave to White, the general agent of a life-insurance company, a note for the premium on a policy upon the life of one of them. In defense to a suit on the note they pleaded that it was procured by false representations of Holland, the plaintiff’s agent, who solicited them to take the insurance.

<p>Complaint. Before Judge Lumpkin. Fulton superior court. June 22, 1903.</p>

<p>Complaint. Before Judge Evans. Screven superior court. August 5, 1903.</p>

<p>Complaint. Before Judge Taliaferro. City court of Sanders-ville. January 25, 1904.</p> <p>cited Civil Code, §§2895, 2956, 2959, 3889, 4935, 5105; Ga. B. 4/443; 78/575; 103/171; 90/698; 113/1010; 74/320; 110/477; 115/23; 22 A. & E. Ene. L. (2d ed.) 866.</p> <p>cited Civil Code, §§ 3694, 4960; Ga. B. 69/661 (2); 73/641 (1); 77/153; .110/779 (2, 3); 69/825; 79/315; 110/480; 4 Cyc. of L. 340 (3).</p>

<p>1. A petition alleging that a contract entered into between three parties on one side and one on the other was invalid, and praying that the entire contract he set aside and cancelled, is not supported by evidence that the contract was invalid as to only two of the three contracting parties.</p> <p>2. The charges complained of were not erroneous for any reason assigned, and the requests to charge, so far as legal and pertinent, were covered by the general charge.</p>

<p>1. While, under the Civil Code, § 4995, special pleading is not admitted, yet where, by way of set-off or cross-bill, the defendant makes an affirmative claim against the plaintiff, the court may require the plaintiff to meet such allegations by appropriate pleading.</p> <p>2. Where the defendant makes no motion therefor, he can not, after the case has been submitted to the jury, take advantage of the plaintiff’s failure to reply; nor is the plaintiff’s silence- to be treated as an admission of the allegations in the cross-bill.</p> <p>3. An executory agreement to convey property, pay money, or perform services will not be enforced by the courts if the contract is based on an immoral consideration.</p> <p>4. So too, where the consideration is immoral but the contract has been fully executed, the courts, applying the same principle, will leave the wrong-doers where they have placed themselves.</p> <p>5. In Georgia there is no necessity for livery of seisin. The contract is executed and'the title passes upon the delivery of the deed.</p> <p>6. The grantor and his privies in estate are concluded by the execution and delivery of a deed to real estate, though the consideration be illegal or immoral, and regardless of whether there is contemporary or subsequent ’ change of possession.</p>

<p>Equitable petition. Before Judge Gary. Richmond superior court. January 21, 1904.</p>

Equitable petition. Before Judge Russell. Walton superior court. February 19, 1904. This is a branch of the litigation referred to in County' of Walton v. County of Morgan, ante, 548.

<p>1. Ordinary diligence requires a master to furnish to his servant appliances reasonably suited for the uses intended.</p> <p>2. But-the law does not exact of the master the extraordinary diligence which would be demanded if it were required that instrumentalities intended for one use should be safe and suitable for every unintended use to which they might be casually-or unexpectedly applied.</p> <p>3. If one is not chargeable with negligence because an appliance fails to serve a purpose not intended, neither is he chargeable with negligence because he has omitted to inspect so as to discover that it was not suited for such unexpected and unintended use.</p> <p>4. A master can not send an employee to work in that which is known to be a trap, without being responsible for the resulting damage.</p> <p>5. If the master requires a servant to use or knows that he vill necessarily use, an appliance originally intended for another purpose, he will thereby be held responsible, as if the instrumentality had originally been intended for such new use.</p> <p>6. Since pleadings are to be most strictly construed against the pleader, an allegation that the master knew or ought to have known of the defects and dangers is equivalent to a charge of implied notice rather than of actual knowledge.</p> <p>7. The plaintiff, a minor, was employed to labor among rafters and open timbeé work. To steady or sustain himself he suddenly grasped an insecurely fastened brace, designed as a support for the roof, but not intended for a hand-hold. The brace fell, and he with it. There was no allegation that the brace was not reasonably safe for the purposes for which it was intended, nor that the defendant knew that it was insecure, or knew of any fact which would have suggested that it was dangerous ; nor was it alleged that it knew that the plaintiff would necessarily or naturally rely upon the brace as a support. Reid, that the petition did not charge actionable negligence, or set out a cause of action against the defendant.</p>

<p>Complaint. Before Judge Littlejohn. Sumter superior court. December 24, 1903.</p>

<p>Action, for damages. Before Judge Spence. Mitchell superior court. December 21, 1903.</p>

<p>Petition for receiver, etc. Before Judge Spence. Worthsuperior court. June 6, 1904.</p>

<p>Petition for certiorari. Before Judge Parker. Glynn superior court. November 2, 1903.</p>

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

<p>Action for damages. Before Judge Reynolds. City court of 'Waycross. September 15, 1903.</p>

Action for damages. Before Judge Parker. Wayne superior court. January 18, 1904.

<p>Complaint. Before Judge Henderson. City court of Douglas. January 6,1904.</p>

<p>Complaint. Before Judge Beid.- City court of' Atlanta. October 28, 1903.</p>

<p>1. On the trial of an issue of fact raised by a plea to the jurisdiction, the burden is upon the defendant to establish the averments of his plea.</p> <p>2. A partnership may be sued in any county in which one of the partners has such a residence as will confer upon the courts of that county jurisdiction over his person, regardless of the place of his citizenship.</p> <p>3. The grounds of the motion for a new' trial on the plea to the jurisdiction, which are not specifically dealt with, show no error on the part of the trial judge requiring a reversal of the judgment refusing to grant a new trial.</p> <p>4. In an action against an alleged partnership on promissory notes purporting to have been executed by the firm and reciting that they were given for an amount due the payee on goods furnished the maker, a special plea in abatement which averred that the partnership was dissolved prior to the execution of the notes, and that the plaintiff (the indorsee of the notes) had notice of the dissolution, but which did not aver that the payee had such notice, or that the note was not given for a partnership debt, was properly disallowed.</p> <p>6. In an action upon unconditional promissory notes by the indorsee thereof, a plea which merely denied the allegations of each and all the paragraphs of the petition, and averred that the notes were without consideration, but which did not aver that the plaintiff had any notice of the lack of consideration, set up no meritorious defense to the suit, and was properly disallowed.</p> <p>6. Where, in a promissory note, the obligation to pay was not limited or contingent, but was absolute and unequivocal, the character of the note as an unconditional contract in writing was not affected by a recital therein that it was given for an amount due by the makers for goods furnished by the payee, “which property is consigned to us under the express condition that the title to said property, or the proceeds thereof, is to remain in said payee, and not to pass to us until said aforesaid sum shall have been paid in full, in accordance with a contract between said payee and the maker of this note.”</p> <p>7. Regardless of the correctness of the point urged against the recital in the note describing the transaction between the makers and the payee as a “consignment,” the petition was good as against the oral demurrer.</p>

Complaint. Before Judge Eeid. City court of Atlanta. November 28, 1903. Akers brought suit by attachment against Dickson & Company and the Jefferson County Savings Bank, residents of the State of Alabama.

<p>1. After the cause is at issue, the defendant may, by an answer in the nature of a plea puis darrein continuance, set up matter of defense which has arisen since the beginning of the action, or since the filing of the last plea.</p> <p>2. In actions involving title or right of possession of land, the defendant may-show that since the institution of the suit he has acquired title or right of possession.</p>

<p>Motion to set aside judgment. Before Judge Reid. City court of Atlanta. January 4, 1904.</p>

<p>The plaintiff sued for injuries occasioned by a cord getting caught in moving machinery. An inspection would have disclosed its condition and that it was liable to get caught in the shaft, but it appeared that he had not examined and did not know of its condition, and there was nothing in the evidence which affirmatively showed that he was bound to inspect, or that he was required to be on that side of the machine where the cord was tied, and where he could have seen -that it was unsafe. He proved his case as laid, without establishing such additional facts as would disprove his right to recover. It was therefore error to grant a nonsuit.</p>

Certiorari. Before Judge Evans. Jefferson superior court. November 11, 1903. • Moore executed the following paper: “ Bill of Sale. State of Georgia, McDuffie County. Eor and in consideration of seventy-five dollars, cash paid, I hereby sell and convey unto J. E. Shields, his heirS and assigns, one yoke of oxen, one a red ox, the other white with brindle side, named Burnelly and Bill. To have and to hold said oxen forever.

<p>Assumpsit. Before Judge Parker. Johnson superior* court. December 7, 1903.</p>

<p>Certiorari. Before Judge Evans. Jefferson superior court. November term, 1903.</p>

<p>Appeal, etc. Before Judge Holden. Richmond superior court. December 4, 1903.</p>

Petition for leave to sue receiver. Before Judge Gary. Richmond superior court. December 28, 1903.