Volume 121 — Georgia Reports

<p>Alimony. Before Judge Spence. Worth, superior court. January 4, 1904.</p> <p>J. L. Sumner and his wife,_ Mrs. S. J. Sumner, separated in December, 1900. Negotiations were begun between them, looking to a settlement of the wife's -claim for alimony. On December 8, 1900, both parties signed an agreement to live thenceforth separate and apart from each other, and J. L. Sumner executed a paper in which he agreed to make to his wife “ a deed of conveyance” to described land, and to give her certain personal property. On December 14, Sumner executed a deed, “in consideration of natural love and affection,” conveying to his wife a life-interest in described land. He afterwards delivered to her certain personalty. The deed seems not to have been delivered tor„ Mrs. Sumner until some time in the. early part of the ensuing year. In January, 1901, Mrs. Sumner filed a petition asking for a judgment against her husband for temporary and permanent alimony. This petition was subsequently dismissed by the plaintiff. In April, 1902, Sumner brought suit against his wife for a divorce. She answered, denying his right to a divorce, and, by answer in the nature of a cross-bill, prayed that temporary and permanent alimony be granted her. She amended this answer by alleging, that the deed executed by her husband was void for fraud; that he had failed to comply with his agreement of settlement; that she had never accepted the deed; and that she “hereby returns to J. L. Sumner any benefits he [she] may have, received under said contract.” Sumner answered the cross-petition, averring that the settlement deed was valid and binding, and that Mrs. Sumner accepted it, together with certain personal property, in satisfaction of her claim for alimony against him. Upon the hearing the judge allowed Mrs. Sumner certain sums by way of temporary alimony and attorney’s fees; the order reciting that, “ after hearing the evidence and argument, it is ordered and considered and ad-, judged that no .valid settlement, accord, or adjudication has been made between plaintiff and defendant as to the right of S. J. Sumner to alimony, temporary or permanent, or support or other interest in property and estate of J. L. Sumner.” Sumner excepted to this order, but his counsel having inadvertently failed to sign the bill of exceptions, the writ of error was dismissed in the Supreme Court. 116 Qa. 798. Subsequently Sumner filed a petition in the superior court, reciting the fate of his writ of error, and other facts, and praying for a revision of the order granting. Mrs. Sumner temporary alimony. This petition was denied, and, on exception in the Supreme Co.urt, the judgment of the trial judge,was affirmed. 118 Ga. 408. Thereafter the application for permanent alimony came on for trial before a jury, and resulted in a verdict for the applicant in the sum of $15,000. Sumner made a motion for a new trial, containing several grounds. At the hearing of this motion Mrs. Sumner moved, on specified grounds, to dismiss it. The court overruled the motion to dismiss, and then overruled the motion for a new trial. While the jury were considering the case, the court, over objection of Sumner’s counsel, heard and granted a motion of Mrs. Sumner to allow her an additional sum for attorney’s fees. To the granting of' this motion Sumner excepted pendente lite. Each of the parties sued out a writ of error to this court. In Sumner’s bill of exceptions error is assigned upon the judgment overruling his motion for a new trial. In that bill of exceptions the facts relating to the allowance of additional attorney’s fees and the filing of exceptions pendente lite are recited, but no assignment of error thereon is made; nor was error assigned in this court after the casé reached here. Mrs. Sumner’s bill of exceptions assigns error upon the order overruling her motion to dismiss the motion for a new trial. This bill of exceptions is denominated by the plaintiff in error therein a “ cross-bill.” The other material facts appear in the opinion.</p>

Distress warrant. Before Judge Holden, Oglethorpe superior ■court. January 25, 1904. Held: that “ under the contract and evidence in the case, the plaintiff Hawkins was a purchaser, and entered as such,” and was entitled to damages by reason of his eviction.

Equitable petition. Before Judge Parker. Johnson superior-court. September 21,1903. Swain M. Eortner died in March, 1881, leaving a will in which he gave to his-, widow, for life, a described tract of laúd, with re-, mainder after her death to his two daughters, Millie E. Frost and. Nancy D. Wiggins. His sOn, O. S. Fortner, was made an executor of the will, which was witnessed by only two persons, but. which was, by consent of the parties at interest, admitted to probate.

<p>Action for damages. Before Judge Eve. City court of Richmond county. February 26,1904.</p>

<p>Action for damages. Before Judge Eve. - City court of Richmond county.. March 12, 1904.</p>

<p>Action for damages. Before Judge Johnston. City court of Waynesboro. March 14, 1904.</p> <p>The suit was by the husband and- children of Fannie Thomas, on account of her homicide; and they excepted to the sustaining of a general demurrer. They alleged, that on March 19, 1903, she was struck by .the engine of a passenger-train of the defendaht, at Munnerlyn. She had started, in pursuit of her business, from a store on the eastern side of the railroad track to another store on the western side. She followed a footpath .just north of the railroad station, generally and constantly used by the public in crossing from one side of the track to the other, which use was with the consent of the defendant company, which kept the crossing in repair for the purpose, of such use. A few feet south of the southern end of the railroad station was a public-road crossing, about fifty-four paces from the path before mentioned. Munnerlyn was the trading point for a number of people, there being two or three stores on the one side of the railroad track and two or three on the other. There was a post-office where many people received mail; and frequently many people were at the railroad station. It had -been a regular stopping-place for the defendant’s passenger-trains for a third of a century, and their stopping to deliver and receive mail was regular and usual. The midday northbound passenger and mail train, that struck Fannie Thomas, was twenty-five or thirty minutes behind its schedule time when approaching the station, and ran over the public crossing and footpath and through the village at a speed of forty to forty-five miles per hour, while the regular speed not at stations was not over twenty-five or thirty miles an hour, there being no compliance with the law as to checking the speed and having the train under control. Fannie Thomas was in the exercise of ordinary care and diligence in entering on the track, because, while the train was approaching the station, she could not, owing to its direct approach ón a straight track, tell that it was running at an unusual or very fast rate of speed; and she had the right, to feel sure and confident that it would not run, at the place before described, at a great and reckless rate. She did not know that it was behind time, and she had a right to expect that defendant would comply with the law in checking the speed so as to have the, train under control. She also had the right to feel sure that the train would stop at the station. In any of these events she would have had ample time to cross the track.in- safety, being within a few'inches of being safely across when the engine struck her. The excessive speed was unknown to her, and in the exercise of ordinary diligence could nob have been discovered by her, owing to the train approaching her on a straight track, which rendered it impossible for her to correctly estimate its speed. This' train regularly' carried express. Fannie Thomas was in a store, trading with Reeves, a clerk who was also the express agent, and who told her that, being such agent, he must meet the train and could not wait on her longer. From this statement she had the right to believe the. train would stop, and started across the track to another store to purchase an article that Reeves did not have, saying that after she made this purchase she would return and finish trading.</p>

Motion in arrest of judgment. Before Judge Holden. Richmond superior court. March 1, 1904. At the January term, 1904, of the superior court of Richmond county the following judgment was rendered: “ A. Leffler & Son ' vs, Jones .Bros. Union Compress Co., garnishee. Richmond superior court, January term, 1904. Suit and attachment on note.

<p>Appeal. Before Judge Hammond. Richmond superior court. June 8, 1904.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. July 5, 1904.</p> <p>This was an. action by the Augusta Brokerage Company, a firm engaged in the general brokerage business in the city of Augusta, including the buying and selling of cottonseed, against the Central of Georgia Railway Company. The allegations of the petition were, in substance, as follows: Prior to the wrong herein complained of, the Railroad Commission of Georgia promulgated the following reasonable rule, the same being a part of Rule 36: “The several railroad companies in this State, in. the conduct of their intrastate business, shall afford to all persons equal facilities in the transportation and delivery of freight, without unjust discrimination against any.” In December, 1903, the plaintiff shipped to Augusta, from a station on the line of the defendant’s road, a car of cottonseed, and when the car arrived in Augusta a member of the plaintiff’s firm presented to the proper officer of the defendant, the bill of lading and requested that the car be delivered, on the side-track at'the plaintiff’s warehouse. This request was refused. It is now, and has been for.years, the common practice of the defendant and other’ railroad- companies at Augusta to make delivery of car-load lots of freight at «any point in the city on their own tracks, or on any line of tracks connecting with their own. No refusal to so deliver has been made by the defendant to any of its customers except the plaintiff; and the defendant has never refused to make such delivery to the plaintiff of any other commodity in car-load lots, except cottonseed, but almost daily makes delivery at the plaintiff’s warehouse of car-load lots of hay, grain, etc. It is also the common practice of the defendant to make delivery of cottonseed to the warehouses of all the cottonseed-oil mills at Augusta, having tracks connecting with tracks of defendant. The refusal of the defendant to make delivery of the car-load of cottonseed above referred to, at the plaintiff’s warehouse, was a denial to the plaintiff of “equal facilities in the transportation and delivery of freight,” and was an “unjust discrimination” against the plaintiff, in violation of Rule 36. In consequence of defendant’s failure to deliver the car-load of cottonseed plaintiff was put to an expense of $5.00, and claims this sum as actual damages. On numerous occasions during the current cottonseed season of 1903, defendant has refused to allow cars loaded with cottonseed belonging to the plaintiff to be delivered to connecting roads at Augusta for reshipment in bulk, although such reshipment of cars was freely allowed to .others, and such reshipping facilities were afforded to plaintiff in the case of cars loaded with, lumber, etc., or any other article of merchandise except cottonseed. This refusal was likewise a violation of Rule 36 of the Railroad Commission. In consequence of such refusal, the plaintiff has incurred an expense of $54, which it claims as actual damages. In addition to the foregoing averments, it was also alleged that the refusal of defendant to afford equal facilities with others was a part of a predetermined plan to drive the plaintiff out of the business of buying cottonseed in sections of the country tributary to Augusta, at points on the line of the defendant’s road; that defendant’s commercial agent notified the plaintiff in writing, in the early part of 1903, that he would see to it that the plaintiff did not do any cottonseed business on the defendant’s road; that when requested for cars, in November, 1903, the defendant’s agent gave as an excuse a scarcity of cars, but when the plaintiff secured cars from another road and offered them to him, he admitted that he was fighting to prevent the plaintiff from buying cottonseed on the defendant’s road; that the defendant’s agent told a member of the plaintiff’s firm that he intended to break up the plaintiff’s cottonseed business, because certain oil mills in the vicinity had agreed to ship over the defendant’s line a ton of cottonseed products for every ton of cottonseed brought to them over the defendant’s road; that as a further illustration of the defendant’s purpose, it refused to issue to the plaintiff through bills of lading from a station in Burke county, to certain points,, notwithstanding it was its common practice to issue through bills of lading to such points for general merchandise; that the defendant’s action has resulted in giving a monopoly to the oil mills, as a result of which cottonseed is worth $5.50 per ton less than on the same date last year, when the plaintiff was in the market enjoying equal facilities. These acts of the defendant, in denying the plaintiff equal shipping facilities and in making unjust discriminations against. it, are characterized as wilful violations of the law, and, it is alleged, render defendant liable for exemplary damages. Damages are claimed in the sum of ten thousand dollars.</p> <p>At the appearance term the defendant filed a special demurrer to those portions of the petition last referred to, upon the ground that they were irrelevant, immaterial, and impertinent; and also upon the ground that if there was a refusal to issue through bills of lading as alleged, such refusal ■ occurred in Burke county, and the city court of Richmond county had no jurisdiction. At the trial the defendant moved to dismiss the case, upon the ground that the petition set forth no cause of action. This motion and the special demurrer were sustained. The plaintiff excepted.</p>

<p>Where an intestate dies leaving as his only estate property which has been set aside under the provisions of article 9, section 1, of the constitution (Civil Code, § 5912), as a homestead for the benefit of himself and family, and his widow lives upon the property for several months until her death, without making an application for a year’s support but of the property or indicating any' intention to do so, she will be held to have elected to take the homestead in the property, rather than the year’s support; and her executor can not have the property set apart as a year’s support to her estate under the provisions of the Civil Code, §3465. Brown v. Joiner, 77 Ga. 232, and 80 Ga. 486, Farris v. Battle, 80 Ga. 187, and Bardwell v. Edwards, 117 Ga. 824, distinguished.</p>

<p>Certiorari. Before Judge Cann. Chatham superior court. April 30, 1904.</p>

<p>Action for damages. Before Judge Norwood. City court of Savannah. June 25, 1904.</p>

<p>1. The evidence for the plaintiff established her right to recover the premises in dispute.</p> <p>2. The losing litigant can not complain of an irregularity in the trial, of which he had notice and to which he consented previously to the verdict.</p> <p>3. Where an affidavit is presented in support of a ground of a motion for a new trial, impugning the conduct of the jury and the attorney for the prevailing party, and counter-affidavits are submitted in their vindication, and the trial judge, upon examination of the whole testimony, finds the charge of misconduct is not sustained, this court will not interfere with his discretion.</p> <p>4. Even if the exception to the charge of the court, that it did not fairly and fully present to the jury the defendant’s side of the case, be treated as a proper assignment of error, it is without merit, because the charge was full and impartial, and correctly submitted to the jury the law applicable to the case on trial.</p>

<p>Trover — appeal. Before Judge Seabrook. Liberty superior court. March 5, 1904.</p>

<p>1. The statutory requirement that the notice inviting bids for the construction of a court-house, to cost more than $300, shall “embrace such details and specifications as will enable the public to know . . the terms and time of payment,” is not complied with by a notice which states that certain proportionate parts of the contract price shall be paid at certain stages of the. construction, without fixing the dates when such payment shall be made, or when the building shall be commenced or completed.</p> <p>2. Under such illegal notice, no legal contract can he made; and a court of equity will, at the instance of citizens and taxpayers, enjoin the county authorities from letting any contract under such notice.</p>

Petition for injunction. Before Judge Littlejohn. Macon superior, court. September 3, 1904. On- July 9, 1904, a petition was filed with the ordinary of Macon county, asking that an election be ordered, under the provisions' of the' local option law contained in the Political Code, § 1541 et' seq., to determine whether intoxicating liquors should be sold in that county. On July 9, an order was passed submitting the question to the voters of the county.

<p>1. It is essential to tlie validity of a bill of exceptions that it shall show on itSi face that it was signed in due time.</p> <p>2. A defective bill of exceptions can not be aided by extrinsic evidence, and this court, therefore, can not consider an affidavit setting up reasons why a. corrected bill of exceptions was not presented until the return of the judge to the county where the trial was had,</p> <p>3. The Civil Code, §5545, not expressly stating the length'of time allowed for correcting and presenting the changed bill of exceptions,' must be construed to mean that the plaintiff is to have a reasonable time in which to act.</p> <p>4. What is such reasonable time should be determined as matter of law, and. not as matter of fact depending upon the convenience of parties, the regularity of the mails, or the means of transportation to the residence of the-judge, since the same would necessitate the hearing of testimony, and a trial to determine whether the trial here should proceed.</p> <p>5. When the bill is returned for correction, a new starting point is fixed. What is a reasonable time for making the corrections is, therefore, inde.-. pendent of the length of time allowed for the presentation of the original bill of exceptions.</p> <p>6. Since, in the nature of the case, it ought to require less time to correct, than in the first instance to prepare an entire bill of exceptions, it is. both liberal and reasonable, by analogy, to fix twenty days for the correc-tion and return of the'bill of exceptions, the same being a period deemed sufficient by the law for the preparation of bills of exceptions in injunction cases, which are among the most voluminous provided for by statute.</p> <p>”7. In the present case the delay of thirty-eight days was unreasonable.</p>

<p>1. The petition sufficiently described, the property which was the subject-matter of the suit, and set forth facts which authorized a recovery of damages by the plaintiff.</p> <p>3. There was no error requiring a reversal of the judgment.</p>

<p>Action for damages. Before Judge Hammond. Bichmond superior court. June 27, 1904.</p>

<p>Trover. Before Judge Hammond. Richmond superior court. June 30, 1904.</p> <p>Harley brought an action of trover against Johnson, for a horse which he had traded to the defendant in exchange for a mule, alleging that the defendant had obtained possession of the horse by falsely and fraudulently representing that the mule was safe for family driving. At the trial the plaintiff testified that Johnson proposed the exchange and made the representation alleged,' and that after the exchange had been made he (the plaintiff) found that the mule was subject to fits and was too dangerous to be driven; that when he was informed of this, the next day after the exchange, he offered to rescind, tendered the mule to Johnson, and demanded the horse, and that the offer and demand were refused. There was evidence that the defendant knew of the dangerous condition of the animal, at the time the trade was made. The defendant in his testimony denied this; and it was insisted that the plaintiff’s remedy was by suit for breach of warranty. The verdict was for the plaintiff. The defendant excepted to the overruling of his motion for a new trial, based on the grounds that the verdict was contrary- to law and the evidence. Other exceptions were abandoned.</p>

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

<p>Money rule. Before Judge Eve. City court of Richmond county. July 13, 1904.</p>

<p>1. This court can not consider a brief of evidence which has not been approved by the trial judge.</p> <p>2. The trial, judge has no authority to approve a brief of evidence after the bill of exceptions has been certified.</p> <p>3. As none of the assignments of error in the record can be decided without reference to the evidence, an affirmance of the judgment refusing a new trial results.</p>

<p>1. The Civil Code, § 4652, expressly provides that on the hearing of a writ of certiorari the judge of the superior court may return the same to the court below with instructions.</p> <p>2. Where such instructions are given, and not reversed on the application of the opposite party, they are to be treated as the law of the case.</p> <p>3. The judge of the superior court granted a new trial, with instructions that if, on the second hearing, the evidence was the same, the jury should find for the plaintiff in some amount. The evidence was the same on the second trial, but the jury found for the defendant, who again sued out a writ of certiorari. Reid, that the same should have been sustained and the case returned to the lower court, with instructions to follow the directions previously given and still of force.</p>

<p>The written notice of the sanction of the writ of certiorari provided for in the. Civil Code, § 4644, must identify the case. Where the notice describes a. case tried before a named magistrate in the justice’s court of a certain district, it will not be held a notice of a case tried before an entirely different, magistrate and in an entirely different court, notwithstanding there may b& a coincidence between the names of the plaintiff and defendant.</p>

<p>3^ After a bill of exceptions has been certified, the defendant in error can not have any additional evidence or other matter sent to this court, except such as is part of the record and of file in the office of the clerk.</p> <p>2. Even if it is essential, where a case is taken by certiorari to the superior court, that the record should contain a return of service of notice of the. certiorari, either made by an officer authorized- to make service or verified by the affidavit of a private person, it is error, upon the hearing of the certiorari, to refuse to allow the plaintiff in certiorari who has made an unsworn return to amend the same by verifying it ujider oath.</p>

<p>Certiorari. Before Judge Cann. Chatham superior court. May 14, 1904.</p>

<p>Certiorari. Before Judge Cann. Chatham superior court. April 15, 1904.</p>

<p>Equitable petition. Before Judge Cann. Chatham superior court. April 16, 1904.</p> <p>From the petition and its exhibits it appears that Parsons owned a lot in Thunderbolt, near Savannah, which Ambos desired to secure, and that Ambos owned land through which Parsons desired to obtain a right of way for a railroad. Being unable to agree as to the value of the property, they entered into a written contract, May 26, 1890, by which it was agreed, that Parsons should convey his lot to Ambos, and that Ambos should convey to Parsons the right of way referred to; that each was thereby let into the actual possession of the land contracted to be conveyed to him; that the right of way should be fenced in by Parsons and his assigns, and, in case it was not used for the railroad, Ambos should have the right to repurchase; that the deeds should be made as soon as the price to be paid should be ascertained; and “ lastly, it is hereby mutually convenanted and agreed that upon proper measurement of the quantity of land in such right of way, which shall be done immediately, the excess in value shall be paid for by the party which gains such excess in value of land, at a price to be ascertained by appraisers, to be mutually appointed as follows:” each party to appoint one appraiser, and these two a third, “and a majority of said appraisers shall determine and fix the values of said lot of land, and of the land covered by said right.of way, and the value of said excess, and such value shall be paid to the party entitled thereto.” The parties entered into possession, and, under the terms of the submission, an award was made, but, by mutual consent, it was set aside. Subsequently two “arbitrators” or appraisers found that the right of way to be conveyed by Ambos was worth $600 more than the lot in Thunderbolt to be conveyed by Parsons. Parsons filed a bill in the superior court of Chatham county,' to have this second award set aside, because of the bias and prejudice of one of the arbitrators, and because it was based upon illegal evidence. A decree setting aside the award was affirmed by a judgment of the Supreme Court, as reported in 116 Ga. 22. Thereafter (at what time does not appear) Parsons notified Ambos in writing that “the said submission to arbitration and award is revoked,” and; on November 11, 1902, filed the present petition. The petition alleges, that “he has tendered to the said Ambos the tract of land described in said submission as a right of way, and has demanded of him the-above-described tract owned by your petitioner; that the said Ambos refuses to take back his land, and refuses to deliver to. your petitioner the above-described tract belonging to him; . . that the judgment of the court . . setting aside the award of the arbitrators renders the submission to said arbitration void;, that there can be no further arbitration; that one of the arbitrators, . . Bourquin, is dead, and that only in a court of equity can the differences between petitioner and said defendant be adjusted, and your petitioner receive the relief to which he is-entitled.” Wherefore he prays, that he be decreed to be the owner of the tract of land now in the possession of Ambos; that, the submission to arbitration and award be cancelled and declared void; that the defendant be required to deliver to him peaceable possession of the land; and, “ if it should be decreed that this, property is the property of the said Ambos, and said submission should not be set aside, that this court proceed to determine the values of the respective tracts, and mould its decree so as to-finally adjust the differences between petitioner and defendant- and do full justice in the premises.” He prays also for general relief and process. To this petition the defendant demurred on the grounds, that the petitioner is not entitled to the relief prayed for; that it appears from the petition that he is not the owner of the land mentioned, but that the defendant is the owner, and that, the petitioner has no right of action against the defendant, and is not entitled to any of the remedies prayed for. The demurrer was sustained, and Parsons excepted.</p>

<p>1. The evidence, though conflicting-, was sufficient to authorize the verdict, and, in the light of the ruling made when the case was here before, the discretion of the trial judge, exercised in overruling a motion for a new trial based upon the generaL grounds only, will not be controlled.</p> <p>2. When the order overruling a motion for a new trial contains nothing to indicate that the judge was dissatisfied with the verdict, or that he failed to exercise the discretion required of him by law, the Supreme Court will not, in determining whether the judge has exercised such discretion, consider remarks made by him pending the argument of the motion for a new trial.</p>

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

<p>Complaint. Before Judge Norwood. City court of Savannah. August 8, 1904.</p>

<p>1. The Civil Code, §3359, relating to the appointment of temporary administrators, and §3381, as to the appointment of the county administrator, relate to diametrically opposite conditions.</p> <p>2. Section 3358 provides for temporary letters until the one regularly entitled to permanent letters under section 3367 can be appointed.</p> <p>3. Sectión 3381 provides for the appointment of the county administrator when it is not likely that any one else will apply. He then qualifies, not temporarily until another is appointed, but permanently, and because no one else will be appointed.</p> <p>4. Before the county administrator as such can be granted letters, the estate must not only be unrepresented, but not likely to be represented, and this fact must appear after citation has been published once a week for four weeks, as in other cases.</p> <p>5. The sureties on the bond of a county administrator are not responsible for acts or defaults committed by him under an appointment as temporary administrator.</p>

<p>Certiorari. Before Judge Seabrook. Liberty superior court. February 3, 1904.</p>

<p>Libel for divorce. Before Judge Seabrook. Effingham superior court. June 15, 1904.</p>

<p>Injunction. Before Judge Gober. Fannin superior court. August 6, 1904.</p>

<p>Exceptions to auditor’s • report. • Before Judge Fite. Cobb superior court. November 18, 1903.</p>

Exceptions to auditor’s report. Before Judge Mitchell. Berrien superior court. October 13, 1903. The Valdosta Guano Company sued Green & Sutton on a promissory note for $1,831.83 and interest, on which there were-certain credits. ' The defendants, by their plea, set out a list of additional payments for which they claimed credit. Over the-objection of the defendants the case was referred to an auditor to pass upon all questions of law and fact.

<p>Indictment for burglary. Before Judge Seabrook. Effingham superior court. June 28, 1904.</p>

Indictment for murder. Before Judge Ereeman. Meriwether superior court. June 30, 1904. The evidence for the State made a case of murder by shooting. Testimony for the accused tended to support the theory of self-defense. There was a verdict of guilty, with a recommendation to mercy; and the defendant excepted to tbe refusal of a new trial.

<p>Indictment for altering school license. Before Judge Seabrook. Bryan superior court. June 4, 1904.</p>

<p>Accusation of cheating and swindling. Before Judge Longley. 'City court of LaGrange. July 15, 1904.</p>

<p>Accusation of pointing weapon at another. Before Judge Overstreet. City court of Sylvania. July 13, 1904.</p>

<p>Accusation of carrying concealed weapons. Before Judge Hodges. City court of Macon. June 25, 1904.</p>

<p>1. In a criminal case the venue of the crime mus.t be established clearly and beyond a reasonable doubt. *■</p> <p>2. Former decisions of this court constrain a holding that the venue in this case was not sufficiently established.</p>

<p>Indictment for assault with intent to murder. Before Judge-Freeman. Carroll superior court. June 11, 1904</p>

<p>Indictment for carrying concealed weapon. Before Judge-Bartlett. Douglas superior court. June 13, 1904</p>

<p>Indictment for carrying concealed weapon. Before Judge Bartlett. Douglas superior court. June 17, 1904.</p> <p>The accused was convicted upon a presentment based upon the act approved December 20, 1898 (Acts 1898, p. 60), charging him with carrying metal knucks concealed about his person. He assigns error upon the refusal of the judge to grant him a new trial, and upon other rulings made in the case.</p>

<p>Accusation of larceny. Before Judge Hammond. City court of Griffin. June 1, 1904.</p>

<p>Accusation of larceny. Before Judge Hodges. City court of Macon. July 6, 1904.</p>

<p>Indictment for larceny from the house. Before Judge Roan. Fulton superior court. July 16, 1904.</p>

Certiorari. Before Judge Lewis. Baldwin superior court. July 13, 1904.

<p>Habeas corpus. Before Judge Lewis. Baldwin superior court. July 11, 1904.</p>

<p>Indictment for illegal sale of liquor. Before Judge Brannen. City court of Statesboro. July 18, 1904.</p>

<p>Indictment for larceny. Before Judge Eite. Bartow superior court. July 27, 1904.</p>

<p>1. Proof that the criminal act was committed within two years of the finding of the indictment (the charge being a misdemeanor) is sufficient, though the month and day may not appear.</p> <p>2. Evidence that a witness searched the person of the accused and discovered a concealed pistol on his person is not rendered inadmissible because the witness may not have had a legal right to make the search.</p> <p>3. The verdict was amply supported by the evidence.</p>

<p>Accusation of larceny from the house; Before Judge Longley. City court of LaGrange. August 8, 1904.</p>

<p>1, The principle ruled in Fortson v. Elbert County, 117 Ga. 149, that “ if a defendant is found guilty of more than one offense, and the imprisonment under one sentence is to commence on the expiration of the other, the sentence must so state ; else the two punishments will he executed concurrently,” has no application in a case where the different sentences were imposed hy different courts.</p> <p>2. One who, without objection, goes to trial before a judge who, under the law, receives his compensation from the fines imposed upon those convicted in his court, will not he heard, after conviction, on the trial of a petition for habeas corpus, to urge that the act establishing the court in which he was convicted is void because the method provided for compensating the judge is contrary to public policy.</p>

<p>Accusation of gaming. Before Judge Crisp. City court of Americus. July 27, 1904.</p>

<p>Indictment for murder. Before Judge Bartlett Paulding superior court. July 11, 1904.</p>

<p>1. Rescue, to be punishable under sections 398 and 309 of the Penal Code, must be of one in lawful custody.</p> <p>2. It is not a penal offense to liberate one from unlawful custody, although he may have submitted to such custody without resistance.</p> <p>3. Where the circumstances are such that a lawful arrest can not be made except under warrant, the warrant must, at the time of making the arrest, be in the possession of the arresting officer, or of another in the neighborhood with whom he is acting in concert. Por the purpose of making an. arrest, a warrant is not in the possession of the officer when it is in his house some distance from the scene of the arrest.</p> <p>4. Where one liberates another from a custody which is illegal because the warrant, though in existence, is’ not in the possession of the arresting officer, and the officer subsequently returns and shows the warrant to the rescuer, the accused not being present, the refusal of the rescuer to permit the execution of the warrant does not, either alone or in conjunction with the previous liberation of the prisoner, constitute a violation of the provisions of the code against the rescue of one in lawful custody.</p>

<p>Indictment for murder. Before Judge Henry. Floyd superior court. August 31, 1904.</p>

<p>An accusation, brought under the act approved August 15,1903 (Acts 1903, p. 90), which charges that the accused contracted with named persons to perform services, and on the faith of such contract procured “ advances,” with the intent not to perform his contract, and that he neither rendered the services nor returned the “ advances,” but which fails to specify what these “advances” consisted of, is defective and should be quashed on demurrer specially pointing out this defect.</p>

<p>Certiorari. Before Judge Littlejohn. Stewart superior court. August 8, 1904.</p>

<p>Certiorari. Before Judge Spence. Mitchell superior' court. April 18, 1904.</p>

<p>Accusation of larceny from the house. Before Judge Humphreys. City court of Moultrie. August 31, 1904.</p>

Indictments for larceny. Before Judge Henry. Eloyd superior court. September 5, 1904. Abrams and Osburn were jointly indicted for simple larceny, the specific charge being that they took and carried away, with intent to steal the same, a certain mule, the property of Mrs. M. A. Kerr. They were tried together, and both were convicted. Each filed a separate motion for a new trial, the grounds of the two motions being identical.

<p>Indictments for burglary. Before Judge Henry. Floyd superior court. September 2, 5, 1904.</p>

<p>Indictment for murder. Before Judge Spence. Mitchell superior court. September 26, 1904.</p>

<p>Accusation of stealing ride on railroad-train. Before Judge • Hodges. City court of Macon. September 17, 1904.</p>

<p>'The Mayor and Council of Americus, under the general welfare clause of the charter of that city, was authorized to prohibit by ordinance the having and keeping for unlawful purpose of wine, beer, or other intoxicating beverages ; and had jurisdiction to try one charged with a violation of this provision of section 398 of its code of. ordinances.</p>

/Indictment for assault with intent to murder. Before Judge Littlejohn. Sumter superior court. July 14, 1904. Sullivan, Barrow, and Amanda Wilson were indicted under the Penal Code, § 81, in that by instruments and pressure they caused the death of an unborn child with which the pregnant woman was then “ quick.” The defendants severed. On the trial of Sullivan it was shown that the criminal relation between him and the young woman began in May or June, 1903.

<p>Indictment for assault with, intent to murder. Before Judge Littlejohn. Sumter superior court. July 9, 1904.</p>

<p>Accusation of fornication. Before Judge Raines. City court of Lawson. September 8, 1904.</p>

<p>Indictment for burglary. Before Judge Henry. Floyd superior-court. September 6, 1904.</p>

<p>Indictment for murder. Before Judge Henry. Floyd superior-court. September 2, 1904.</p>

<p>1. There was no error in charging the jury that, in determining the truth of the case, they should consider the prisoner’s statement in connection with all the evidence.</p> <p>2. Taken in connection with the entire charge, there was no error in the portions of such charge to which exception was taken.</p> <p>8. There was no error in the exclusion of testimony, and the evidence authorized the verdict.</p>

<p>1. After a witness for the State in a criminal ■ case had testified that he was a detective, employed to secure evidence of violations of law of the character charged in the case on trial, and that he was to receive compensation for his services, but that his compensation was not in any .way dependent upon conviction in the case, being a salary paid by the detective agency with which he was connected, it was not error to refuse to permit the witness to be examined as to what was the amount of the salary thus paid. when it did not appear that the result of the case would have any hearing upon his future retention as an employee by the detective agency.</p> <p>2. The words “ Sect. 1548 read,” appearing in a charge to the jury, indicate with sufficient certainty that what was read was the section of the code of this State, of that number.</p> <p>8. The evidence warranted the verdict, and there was no error requiring a new trial.</p>

<p>Accusation of assault and battery.' Before Judge Adams. City court of Dublin. August 18, 1904.</p>

<p>Accusation of fornication. Before Judge Hodges. City court of Macon. September 10, 1904.</p>

Accusation of cruelty to animals. Before Judge Hodges. City court of Macon. September 10, 1904. Moore was accused of wilfully shooting a dog, the property of Knight, whereby unjustifiable pain, suffering, and death were caused to the dog. There was testimony for the State, that the dog was found dead in a sack, with a bullet wound in the shoulder and a cut in the throat.

<p>Accusation of abandonment of child. Before Judge Lumpkin. Eulton superior court. September 12, 1904.</p>

<p>Accusation of selling mortgaged property. -Before Judge Humphreys. City court of Moultrie. September 12, 1904.</p>

<p>Indictment for larceny from the person. Before Judge Roan. Eulton superior court. July 9, 1904.</p>

<p>Accusation of unlawful sale of wild deer. Before Judge Gale. City court of Brunswick. August 22, 1904.</p>

<p>Indictment for unlawful sale of liquen. Before Judge Freeman. City court of Newnan. September 2, 1904.</p>

Foreclosure of lien. Before Judge Cann. Chatham superior court. February 10, 1904. Neal-Millard Company brought an action against the Stewart-Contracting Company and the Trustees of Chátham Academy, to-enforce a materialman’s lien.

<p>Complaint for land. Before Judge Felton. Bibb superior court. January 21, 1904.</p>

<p>1. Where a pedestrian in a city street, whose business made it necessary for him to cross certain railroad tracks lying across such street, found the crossing obstructed by a train of á railroad company, waited for forty minutes or more, and, the train not having moved, undertook to go around the end of the train, the railroad company is liable to him for injuries received by fall- ' ing in a ditch while he was, in the exercise of ordinary care, making his way over the tracks and around the train. This is so whether the ditch ■ was under the tracks of the offending railroad company, or of another railroad company close by. ■</p> <p>2. Though the evidence was conflicting as to some of the material issues in the case, the jury believed that for the plaintiff, and, the trial judge being satis-, fled with the verdict, this court will not control his discretion in refusing a new trial.</p>

<p>Complaint on note. Before Judge Felton. Bibb superior court. February 17, 1904.</p>

<p>Action on insurance policy. Before Judge Hodges. City court of Macon. March 22, 1904.</p>

Action for damages. Before Judge Felton. Bibb superior .court. April 21, 1904. This case was tried on an agreed statement of facts, from which it appeared that the plaintiffs in the court below filled out duplicate shipping tickets, signed the same, and sent them with shipments of candy to the company’s depot. The contents of the packages were unknown to the carrier, except as indicated by the tickets.

Action for damages. Before Judge Felton. ■ Houston superior court. June 2, 1904. Marchman brought suit against the Georgia Southern and Florida Railway Company, alleging: On January 29, 1902, the railway company contracted with plaintiff to furnish him two cars on the day following, at the 31 mile-post, a shipping point on •the line of its- railway, so that plaintiff could load on the cars and ship 82,600 pounds of cottonseed.

<p>Certiorari. Before Judge Felton, Bibb superior court. May 30, 1904</p> <p>On July 21, 1903, Lawson contracted to build and alter a house for Harris for $725. Harris paid Lawson $25 or $40 on account. Lawson did about $200 worth of work, and thereupon abandoned the contract. Rowell was an employee of Lawson,, and recorded his lien, within three months after performing the services, for $20, the amount of work he had done. After Lawson abandoned the contract, Harris got bids from other contractors to complete the contract, and awarded it to J. B. Haigler at $825, lie being the lowest bidder. Harris paid, on Haigler’s order, to Wilder’s Son and Lee & Green $231.67 upon their agreement to claim no lien on the property, paying the balance of the contract price to Haigler, and taking from him an affidavit that “the agreed price and reasonable value of all labor and work done and used upon said house, and all material used therein, has been paid by affiant, except Wilder’s Son $57, and Lee & Green $155.” Having thus paid out $825, Harris declined to pay Rowell, who sued and obtained a judgment, which was set aside on certiorari and a final judgment rendered in favor of Harris.' Rowell excepted.</p>

<p>1. Statements published in good faith by one to protect his own interests in a matter where he is concerned, as well as to protect the interests of another whom he represents as agent, are privileged, when the character of the publication is such as to make it reasonably necessary, under the circumstances, to accomplish the desired purpose.</p> <p>2. A wilful falsehood can not be uttered in good faith, and therefore can never be the subject of a privileged communication.</p> <p>3. Negligence in failing to ascertain the meaning and effect of a writing, before a publication of the same under circumstances where it would be injurious to the character or reputation of another, is so inconsistent with good faith as to prevent the communication from being privileged as a statement in the performance of a private duty, or a statement by the writer to protect his own interests in a matter where he is concerned.</p> <p>4. The general rule is that the question of libel or no libel is one of fact for a jury. Especially is this true when the writing is not a libel per se, but its character as such depends upon the circumstances under which it was published.</p> <p>6. Upon proof of the publication of a writing which is libelous on account of the circumstances under which it was published, a presumption arises that the party libeled is innocent of the charge therein preferred, and an inference is raised that the publisher was actuated by malice.</p> <p>6. Evidence which may be insufficient to so establish good faith as to sustain a plea of privilege -in an action for a libel may still be sufficient to rebut the inference of malice and mitigate the damages.</p> <p>7. The judge should explain to the jury the meaning of technical terms which occur in his instructions, but a failure to do so will not generally be ground for a new trial, in the absence of an appropriate and timely written request for such explanation.,</p> <p>8. Whether answers to interrogatories which are claimed to be leading shall be read is a question resting in the sound discretion of the trial judge, and this discretion will not be controlled unless it is manifest that injustice has been done.</p> <p>9. In the trial of an action for libel it is error for the judge to fail to instruct the jury on the law of nominal damages, when the evidence in the case is of such a character that under no view of it would a general verdict for the defendant be authorized. This is true even though there be no written request for instructions on such subject.</p>

<p>1. When a party to a suit lias been served with a notice to produce a writing which is material evidence in the case, hut makes no response, and the adverse party makes the affidavit or his counsel the statement in his place required by the Civil Code, § 5263, the adverse party may move for an order requiring the production of the paper, and the refusal of the court to grant such order is error.</p> <p>(a) Such refusal by-tlie court is reviewable in a motion for a new trial.</p> <p>(b) A notice to produce is not defective in that it does not specifically call for the production of the paper from “term to term,” and the party served therewith is not relieved from compliance with the notice because the trial occurs at a term subsequent to the term at which such party was notified to produce the paper.</p> <p>2. The various charges complained of substantially stated the law upon the merits of the case.</p> <p>3. Questions presented by an assigment of error, but relating to matters which can be of no practical importance on another hearing of a case, will not be specifically dealt with by this court in the event the judgment of the lower court is reversed on other grounds which are controlling.</p>

<p>Citation, etc. Before Judge Holden. Elbert superior court. March 17, 1904.</p>

<p>Interpleader. Before Judge Hammond. Richmond superior court. August 15, 1904.</p> <p>In 1875 G. W. Conway was indebted to Theodore Caswell, with whom he was having business transactions. It being contemplated that the amount of the indebtedness would vary, Conway transferred a policy of insurance on his life, in the -¿Etna Life Insurance Company, to Caswell as collateral “to the extent of such interest as he may have when said policy becomes a claim.” Caswell and his successors paid all the premiums. In 1887 Caswell died. In 1888 Warren, his administrator, filed a bill in equity against Conway, in which a decree was entered, that Conway was indebted to Caswell $971 with interest from September 1, 1881, for which execution might issue at any time; that for the purpose of protecting the estate against loss Warren should be authorized to keep of force the policy held by the estate on the life of Conway; that for premiums already paid or to be paid on the policy, and for the amount of $971, the estate holds a valid and legal title to the policy. In 1890 Warren, as administrator, transferred to Mrs. Caswell this debt and the policy as collateral to the extent of such incerest “as he may have when said policy becomes a claim.” " On the same day Conway executed an instrument in which he referred to the decree above set out, and recited that Warren, administrator, “has sold at public outcry, pursuant to law, to Lucie W. Caswell, the above-stated debt and judgment, which amounts to over two thousand dollars, and the policy hereinafter mentioned being upon the life of Geo. W. Conway and taken out by said Caswell to secure said debt. And" whereas said administrator desires to transfer said indebtedness and said policy to her, the said Lucie W. Caswell, and desires the consent of the said company and the said George W. Conway thereto. Now therefore I, George W. Conway . . hereby admit said indebtedness hereinbefore described, which now amounts to .over two thousand dollars, due said estate of Theodore D. Caswell, and consent to the sale and transfer of the same by said administrator to said Lucie W. Caswell, and also consent to a transfer to her of the life-insurance policy on my life in the A5tna Life Insurance Company, . . for two thousand dollars, both by said administrator and said insurance company; said Lucie W. Caswell to hold the same and collect and apply the proceeds thereof at my death to the payment of the indebtedness aforesaid.”</p> <p>Conway died December 12, 1903. Mrs. Caswell as the assignee made out proof of the claim. The two daughters of Conway made out a similar proof, and claimed the proceeds by virtue of the fact, that they were his sole heirs at law. In view of the doubt raised by these conflicting claims the .company failed to pay either party. Mrs. Caswell thereupon filed suit on the policy. The daughters of Conway likewise brought suit. Thereupon the .¿Etna Life Insurance Company filed a petition in Kichmond superior court, praying that these .suits be enjoined, and that the respective claimants be required to interplead. The judge passed an order enjoining the suits, and on the hearing of the rule nisi an order was passed directing the money to be deposited in the treasury of the court, and requiring the claimants to interplead. This was done, each filing a petition in the nature of a cross-bill, asserting title to the proceeds of the policy; Mrs. Caswell claiming by virtue of the assignment above referred to; and the daughters of Conway, averring that there were no debts and that they were the sole heirs, .asserted their claim, insisting that they were entitled to the proceeds, because of the fact that the original transfer was only to secure Caswell to the extbnt of the claim he might have against Conway at the time of Conway’s death; that the original debt from Conway to Caswell was barred; that the judgment rendered on the suit filed in 1888 was dormant; that therefore the estate of Caswell had no claim against Conway. They further contended that the judgment and policy had been transferred to Mrs. Caswell without an order of court, and that the consent by Conway to the transfer by the administrator to her was void as being without consideration, and based upon a statement that the judgment and policy had been sold to her at public outcry under an order of the court of ordinary. They except to the decree in favor of Mrs. Caswell.</p>

<p>Action on insurance policy. . Before Judge Norwood. City ■court of Savannah. June 18, 1904.</p> <p>Leader brought suit, returnable to the November term, 1902, of the city court of Savannah, which began on November 3, -against the Insurance Company of North America, upon a certain fire-insurance policy issued to him by the Philadelphia Underwriters, composed of the defendant company and the Fire Association of Philadelphia, it being provided in the policy that, for the purpose of enforcing any claim arising under the policy, the insured might bring his action against either of the companies, and the other should be bound. The policy was issued upon a stock •of merchandise belonging to the insured, contained in a described building located in the town of Higgston, Georgia. In the suit, -as originally instituted, the plaintiff alleged that, on a named date, which was shortly after the policy was issued, “ a fire originated in the sawmill of J. J. Cummings, in close proximity to said store, and that, upon account of the close proximity of the said sawmill fire and the fierceness with which it burned, said storehouse and said stock of goods were in imminent danger of being destroyed by fire, 'and that to prevent the probable destruction of said stock of goods by fire, . . petitioner had the same removed from said storehouse, and that in moving the same they were damaged by the handling thereof,” in a named sum. Attached to the petition was a copy of the policy sued upon. On November 11, 1902, the defendant up to that time not having filed any answer, the parties entered into a written agreement which, in substance, was as follows: The plaintiff agreed that the defendant might, within five days from date, file such pleadings or answers as it might have filed on or before the opening of the court on the third of that mouth, and that any default which might have arisen by reason of its failure to file a defense on or before that time should be set aside. The defendant agreed not to defend upon the ground that the plaintiff had carried additional insurance without its written consent, nor upon the ground that the plaintiff failed to comply with the conditions of the policy as to notice of alleged loss or damage, or preliminary proofs of loss, admitting that it had denied liability at once and waived notice of the loss and proofs thereof. On the day after'this agreement, the defendant demurred to the petition, upon the ground that the damage claimed .was not within the terms of the policy, the insurance being against all direct loss or damage, “ and the damage claimed not being a direct loss or damage.” On the same day, subject to this demurrer, it filed its answer; the contents of which it is unnecessary to state further than to say that it admitted issuing to the plaintiff the policy sued upon, and the occurrence of the fire referred to in the petition, and denied the allegations as to the proximity of the fire to the storehouse which contained the property insured, and that, to prevent the probable destruction of the goods by fire, the plaintiff had removed them from the building and thereby sustained the damages alleged. At the July term, ■1903, the court overruled the demurrer, and the defendant filed exceptions pendente lite to this ruling. On August 4, 1903, the plaintiff filed in'the clerk’s office a proposed amendment to his petition, in which he made certain allegations as to the buildings and property consumed by the fire, and alleged that, to prevent the destruction of his goods by fire, he had had them packed and prepared to be removed from the storehouse, and that in packing and preparing them to be moved from the house they were damaged to the extent alleged in the petition. This amendment was subsequently allowed by the court, over the objections of the defendant, the objections being, that it set forth a new cause of. action, and that under the policy sued on the defendant was not liable for damages incident to the packing and preparing of the goods for removal. To this ruling the defendant also filed exceptions pendente lite. The defendant then offered an amendment to its answer, in which amendment it alleged that, on January 21, 1902, after the fire mentioned in the plaintiff’s petition and before the suit was filed, it had paid to the plaintiff $18.41, “in full accord, satisfaction, and settlement of his claim under the policy, the plaintiff reciting in his written receipt and acquittance . . . that he had received this sum as the return premium ” on the policy sued on, “ and that he then and there cancelled and rendered void the said policy;” and that the plaintiff did not surrender the policy at the time, but promised to do so, and gave as a reason for not doing so that it was in the hands of his attorney. The plaintiff objected to the allowance of this amendment, his objections being, that the defendant was estopped from setting up the matter therein contained, by the above-mentioned agreement of November 11, 1902 ; that the amendment showed that there was no consideration for an accord; that it showed that there was no accord and satisfaction, but merely a cancellation of the policy and a release of the unearned premium. The trial judge sustained the objections and disallowed the amendment, because of the agreement of November 11, 1902, being of opinion that, under that agreement, all defenses that could have been filed at that time had to be filed within five days from the date of the agreement. To this ruling the defendant filed exceptions pendente lite. The defendant then answered the amendment to the plaintiff’s petition, by denying all of its allegations, save those as to the origin and extent of the fire. Upon the trial there was a verdict for the plaintiff. The defendant filed a motion for a new trial, which was overruled, and it excepted; and in the bill of exceptions error is assigned upon the overruling of this motion, and upon each of its bills of exceptions pendente lite.</p>

<p>Complaint. Before Judge Cann. Chatham superior court. August 1, 1904. ,</p>

<p>Complaint. Before Judge Hodges. City court of Macon. January 7, 1904.</p>

<p>Complaint. Before Judge Hodges. City court of Macou. February 6, 1904.</p>

<p>Appeal. Before Judge Felton. Bibb superior court. May 30, 1904. '</p>

<p>■ Certiorari. Before Judge Felton. Bibb superior court. May 30, 1904,</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. May 30> 1904</p>

Equitable petition. Before Judge Eelton. Bibb superior court. June 8, 1904.

<p>Certiorari. Before Judge Felton. Bibb superior court. May 30, 1904.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. June 8, 1904.</p>

Action on bond. Before Judge Hodges. City court of Macon. June 29, 1904.

<p>Ejectment. Before Judge Felton. Bibb superior court. Au.gust 2, 1904.</p> <p>For former decision in this case see 119 Ga. 76.</p>

<p>Action for damages. Before Judge Hodges. City court of Macon. July 30, 1904.</p>

Equitable petition. Before Judge Holden. Glascock superior court. January 26, 1904. In November, 1902, Usry executed a bond for title to land in Glascock county, “ containing one hundred acres, more or less,” bounded on the north by lands of Usry and Harris, on the east and south by lands of Usry,.and on the west by lands of Harris; no metes being given. The obligee executed notes for 11,000 pounds of lint-cotton, as the purchase-price of the land.

<p>Processioning. Before Judge Holden. Hancock superior court. February 6, 1904.</p>

<p>Equitable petition. Before Judge Holden. Hancock superior court. February 25, 1904.</p>

<p>Complaint for land. Before Judge Holden. Hancock superior court. February 25,. 1904.</p>

<p>Appeal. Before Judge Holden. Elbert superior court. March 17, 1904.</p> <p>Mathewson brought' two suits before W. M. Grogan, N. P. and ex-off. J. P., against Mrs. Sanders. She confessed judgment, and within the time allowed by law gave notice of appeal in both cases, paid the cost, demanded an appeal to a jury in the superior court, “ and brings Mrs. Jennie L. Heard and tenders her as her security, and they, the said Corrie Sanders as principal, and the said Mrs. Jennie L. Heard as security, hereby acknowledge themselves bound unto the' said plaintiff, J. D. Mathewson, for the eventual condemnation-money in said case, whatever it may be. Given under our hands and seals, this August 26th, 1903. [Signed] Mrs. Jennie L. Heard, L. S. ” Upon the call of the cases the appellant moved for a' continuance; and subsequently the appellee Mathewson moved to dismiss the appeal, because the pleas to the unconditiontal contract in writing did not appear on their face to have been filed in the justice’s court, nor did it appear that they had been returned to the superior court by the justice, but instead, from an entry endorsed thereon bv clerk of the superior court, it appeared that the pleas had beeu received from the hands of Beasley. He also moved to dismiss on the ground that no appeal bond had been given; that the bond was signed only by the security. In both cases the court passed an order dismissing the appeal, “ because there is no legal bond to appeal the case.” To this judgment Mrs. Sanders excepted.</p>

<p>Action for damages. Before Judge Holden. Hancock superior court. April 6, 1904.</p>

<p>Appeal. Before Judge- Holden. Hancock superior court. February 4, 1904.</p> <p>Suit for rent was brought to the monthly term of the county court. A plea of recoupment was filed. The county-court judge passed an order reciting that it appeared that the amount claimed in the plea “was more than the jurisdiction” of the county court at its monthly session, and that the case be entered on the cjuar-. terly term docket. Afterwards judgment was entered against the defendant in the county court, and he appealed. In the superior court the plaintiff demurred to the plea of recoupment, because' the amount therein claimed exceeded the jurisdiction of the county court at its monthly session; whereupon the judge of that court ordered that the case- be remanded to the monthly county court and stand for trial therein. The defendant excepted.</p>

<p>A sold personal property to B, reserving title until the payment of the purchase-price. B subsequently executed a bill of sale to the property to C to secure an indebtedness. After the execution of the bill of sale from B to C, A sued-B in trover and recovered a money judgment, and the fi. fa. issued thereon was levied on the property, which was claimed by C. Held, . that C, not being a party to the suit in trover, and having purchased before that suit was begun, was not concluded by the judgment in favor of A,-and should have been allowed to introduce evidence to show that the purchase-price of the property had been paid before the suit in trover was instituted.</p>

<p>Certiorari. Before Judge Hammond. Glascock superior court. June 27, 1904.</p>

<p>Complaint. Before Judge Toombs. City court of Washington.' August 19, 1904.</p>

<p>Action for damages. Before Judge Holden. Taliaferro superior court. August 23, 1904.</p>

<p>Certiorari. Before Judge Russell. Jackson superior court. January 18, 1904.</p>

<p>Complaint. Before Judge Russell. Jackson superior court. February term, 1904.</p> <p>Suit was brought on a physician’s bill for medical services. The testimony showed, that a family were stricken with typhoid fever; that their neighbors presented to the ordinary, who had control and supervision of the county affairs, a petition that the County accept them as'paupers; that the ordinary wrote on the petition an order accepting them as such, directed the plaintiff, a physician, to treat them at reasonable charges, and employed another person to look after them and to employ nurses, giving this person an order for goods to relieve tbe emergency; and that the ordinary paid $47 out of the county funds for nursing and like expenses in the case. The plaintiff’s account was reasonable and just, but was unpaid. Nonsuit was moved for, on the ground that the plaintiff had not proved that he had a written contract with the county. It was granted, and the plaintiff excepted.</p>

Complaint. Before Judge Cobb. City court of Athens. February 18, 1904. The Southeastern Lime & Cement Company sued Huggins, doing .business under tbe name of J. H. Huggins & Son, on an open account for cement -alleged to have been bought of plaintiff, on an accepted draft, and on a promissory note. The defendant admitted the correctness of the account, and the execution of the draft and note.

<p>Action for damages. Before Judge Russell. Jackson superior court. May 16, 1904.</p> <p>The petition in this case alleged, in substance, that in September, 1902, the plaintiff leased from the defendant a house and lot for the term of one year, the tenancy to begin on October 1, 1902; that she paid the rent for the first month, and tendered payment for the second month, but that the tender was refused and she was notified by the defendant to vacate the premises. This she refused to do, and proceedings were brought by dispossessory warrant to evict her. She alleged that she was unable to give bond in double the amount of the rent, as required by law, in order to retain possession of the premises, and the constable serving the warrant to dispossess was therefore “compelled to throw her household goods into the street,” by reason of which she was greatly chagrined and humiliated. She had rented the house for the purpose of taking boarders, and had incurred expense in a named sum in order to furnish the house for that purpose ; and by reason of the unlawful eviction she suffered the loss of the income that she would have derived from the boarders, that she already had, as well as that which she would have received from other boarders whom she reasonably expected to secure. The petition concludes as follows: “Your petitioner sues for wounded feelings and the humiliation which she was compelled to undergo by reason of said illegal act, and the loss she has sustained by reason of the breach of said contract as above set forth.” Subsequently the petition was amended by adding to one of the paragraphs thereof the following: “And that by virtue of the breach of this said contract on the part of the defendant, your petitioner’s wearing apparel and household goods were thrown into the public streets, she thereby being humiliated and her feelings wounded, by reason of which, and for other reasons hereinafter set forth, she was damaged in the sum of five hundred dollars.” The defendant demurred, on the ground that the petition joined claims arising ex contractu and those arising ex delicto in the same action. The demurrer was overruled. An answer was also filed, and the case went to a jury, who found for the plaintiff. The defendant moved for a new trial, which was denied, and he now excepts to the overruling of his demurrer, of his motion for a new trial, and of a motion for nonsuit made at the conclusion of the plaintiff’s evidence.</p>

<p>This ease is controlled by the decisions in Coleman v. Georgia R. Co., 84 Ga. 1, and McLarin v. Atlanta R. Co., 85 Ga. 504.</p>

<p>Action on bond. Before Judge Kimsey. Gwinnett superior court. May 16, 1904.</p>

Action for damages. Before Judge Russell. Gwinnett superior-court: July 4, 19-04. Plaintiffs, who were the owners of a lot in the Town of Nor-cross, brought an action against the town for damages to their property. The petition contained two counts.

<p>1. The statutory presumption of negligence arising from proof that the fire had been caused by the defendant’s locomotive was not rebutted by the testimony of a witness that he knew the defendant had adopted the latest and best improvements in spark-arresters, it not appearing that the engines were thus equipped at the time the injury occurred.</p> <p>2. While a defendant may be liable for an injury ixiflicted within the period covei'ed by the statute of limitations, there may be circumstances under which he is entitled to know the exact date of the occurrence charged, hr order to make his defense; but in such a case it is necessary by demurrer or motion to call for particularity of dates.</p> <p>3. Where no such xnotioir is made, evidence that the fires occurred in November, 1901, was admissible.under allegations in the petition that they occurred “on or about October 27th and 28th, 1901,” and “ at various other dates during 1899, 1900, and 1901.”</p> <p>4. The suit was not against the alienee for damages occasioned by a nuisance constructed by its predecessor in title, but for injuries caused by ditches dug by the defendant whereby a greater quantity of water was diverted through the existing culvert.</p> <p>5. The evidexrce as to the damage from fire axxd the flow of water was conflicting, but supported the verdict.</p>

<p>Motion to set aside judgment. Before Judge Kinisey. Dawson superior court. February 9, 1904.</p>

<p>Petition, for injunction. Before Judge Kimsey. Hall superior court. September 15, 1904.</p>

<p>Indictment for unlawful sale of liquor. Before Judge Freeman. Coweta superior court. September 12, 1904.</p>

<p>1. According to the express decision in Wright v. State, 78 Ga. 192, and the oft-followed principle announced in Bullock v. State, 10 Ga. 47 (4), a verdict that the defendant is guilty of involuntary manslaughter will be referred to the highest grade of that offense, and be treated as equivalent to a finding that he was guilty of involuntary manslaughter in the commission of an unlawful act.</p> <p>2. The decision to the contrary in Thomas v. State, 38 Ga. 117, on review, is overruled.</p>

<p>Conviction of involuntary manslaughter. Before Judge Cann. Chatham superior court. June 23, 1904.</p>

<p>Indictment for murder. Before Judge Lewis. Baldwin superior court. September 26,-1904.</p>

<p>Motion for new trial. Before Judge Henry. Floyd superior court. September 1, 1904.</p>

<p>1. Upon the trial of one accused of larceny of a $100 bill, evidence that shortly after the commission of the alleged crime the wife of the accused was in possession of a bill of the same denomination and description as the one alleged to have beén stolen, and that she sent the bill to a bank to be changed by another person, was admissible as a circumstance, the probative value of which was for the jury.</p> <p>2. The evidence was largely circumstantial, and was conflicting; but that for the State was sufficient to warrant the conviction of the accused. The trial judge having expressed his approval of the verdict by his refusal to grant a new trial, this court will not interfere.</p>

<p>Indictment for murder. Before Judge Littlejohn. Dooly superior court. September 24, 1904. •</p>

Indictment for murder. Before Judge Freeman. Troup superior court. September 5, 1904.

<p>Indictment for murder. Before Judge Daley. Emanuel superior court. September 5, 1904.</p>

<p>Certiorari. Before Judge Parker. Glynn superior court. August 31, 1904.</p>

Certiorari. Before Judge Mitchell. Berrien superior court. September term, 1904. In the city court of Tifton Dixon was convicted of a misdemeanor.

<p>Accusations of riot. Before Judge Hodges. City court of Macon. September 24, 1904.</p>

<p>Indictment for murder. Before Judge Daley. Washington superior court. October 1, 1904.</p>

<p>Indictment for murder. Before Judge Freeman. Coweta superior court. September 26, 1-904.</p>

<p>Accusation of gaming. Before Judge Foute. City court of Cartersville. September 27, 1904.</p>

<p>Indictment for assault with, intent to rape. Before Judge Mitchell. Lowndes superior court. September 12, 1904.</p>

<p>Indictment for pointing pistol. Before Judge Roberts. Wilcox superior court. September 28, 1904.</p>

<p>Indictments. Before Judge Felton. Houston superior court, October 11, 12, 1904.</p> <p>The indorsement “true bill” on each of the indictments in these cases is signed by O. C. Bateman, foreman. In the body of the indictments appear the names of 23 members of the grand jury, including that of O. C. Bateman, but the word “ foreman ” is written to the right of the name of R. G. Blewster. The accused 'demurred to the indictments, on the ground that R. G. Blewster appears in the indictments as foreman instead of the duly elected foreman O. C. Bateman, who appears as such on the back of the indictments and who is shown to be such by the minutes of the court. The court overruled the demurrers, and each of the accused excepted.</p>

<p>Indictment for giving liquor to induce trade. Before Judge Holden. Hancock superior court. September 29, 1904.</p>

<p>Indictment for murder. Before Judge Eelton. Houston superior court. November 2, 1904.</p>

Certiorari. Before Judge Lumpkin. Fulton superior court, October 20, 1904.

Forfeiture of recognizance. Before Judge Felton. Bibb superior court. May 23, 1904. Wells, as principal, and Morgan, as security, executed before the sheriff a bail-bond payable to the Governor of the State.

<p>The erroneous refusal to sustain a demurrer to so much of a petition as prays for attorney’s fees on the ground that the defendant had been stubbornly litigious and had acted in bad faith will not work a reversal of the judgment where the jury does not find a verdict for attorney’s fees; but when evidence is admitted in support of such a prayer, and this evidence is in its tendency prejudicial to the defendant on the main issues involved, a new trial must result.'</p>

<p>■ Motion to set aside judgment. Before Judge Gober. Cobb superior court. July 25, 1904.</p>

<p>Affidavit of illegality. Before Judge Gober. Cherokee superior court. February 23, 1904.</p> <p>For former decision in this case see 117 Ga. 722.</p>

<p>Levy and claim. Before Judge Gober. Cherokee superior court. February 23, 1904.</p>

<p>Complaint. Before Judge Fite. Catoosa superior court. June 28, 1904.</p>

<p>In an action upon an established copy of a lost promissory note, payment made prior to the judgment establishing the copy may be pleaded.</p>

<p>The owner of a vicious or dangerous animal, who allows the same to go at liberty, is liable to one who sustains injury as a result of the vicious or dangerous tendency of the animal only in the event that the owner knows of its vicious or dangerous character. If he does not know this, he will not be liable for an injury which is not the usual and natural consequence to be anticipated from allowing an ordinary animal of that kind to go at large.</p>

<p>Exceptions to auditor’s report. Before Judge Reagan. Spalding superior court. January 21, 1904.</p>

<p>Action for damages. Before Judge Bartlett. Haralson superior court. February 3, 1904.</p>

<p>Conviction of shooting at another. Before Judge Littlejohn. Dooly superior court. October 1, 1904.</p>

<p>1. The defendant company failed to establish by proof its special defense that the railway track on which the plaintiff’s husband was killed was operated and controlled by another company having the same corporate name.</p> <p>2. The court properly overruled the defendant’s motion to dismiss the case on the ground that it was without jurisdiction to try the same, inasmuch as a Georgia corporation which transacts business in another State may be sued in this State by a non-resident for injuries inflicted in that State.</p> <p>3. Where a plaintiff relies, as an act of negligence authorizing a recovery, upon the breach of a duty imposed upon a railway company by a statute of a foreign State or by an ordinance adopted by a municipality thereof, it is incumbent (5n the plaintiff to specially plead the statute or ordinance; and in the absence of proper pleading, proof in regard thereto is inadmissible. i. It was not permissible for a witness in behalf of the plaintiff to state his “ conclusion,” drawn from facts testified to by him, that at the place where her husband attempted to cross the company’s track there was less danger to a pedestrian than there was at a near-by crossing. Nor was it the right of the defendant to introduce evidence tending to show general knowledge on the part of the public as to the danger incident to crossing its track at the point where the plaintiff’s husband was killed.</p> <p>6. Where a plaintiff alleges a number of acts of negligence'on the part of the defendant, it is not ¿necessary to a recovery that proof should be made of each and all of such negligent acts, if the defendant’s liability to respond in damages be shown by establishing the commission of one or more of the acts of negligence complained of.</p> <p>6. The court rightly construed and upheld as constitutional the statute on which the plaintiff relied as conferring upon her the right to recover proportionate damages in the event the jury should find that both the servants of the'company and her husband were at fault.</p> <p>7. The charge of the court as to the measure of damages recoverable in this kind of a case was warranted by the evidence, and was not open to the criticism that the court instructed the jury to consider certain elements of damages which the law did not contemplate should be looked to in estimating the loss sustained by the plaintiff.</p>

Motion to revoke order of injunction. Before Judge Gober. Cobb superior court. February 1, 1904. Henderson brought an action against the Marietta Chair Company, to enjoin it from obstructing a portion of Hansell street, sometimes called McClellan street, in the City of Marietta.

Levy and claim. Before Judge Fite. Bartow superior court. January 27, 1904. Stegall obtained judgment against A. Longmore on an attachment. It was levied on a lot of land in Emerson, Georgia. Mrs. Ellen Longmore, the wife of the defendant, filed a claim.

<p>Action for damages. Before Judge Fite. Gordon superior court. February 24, 1904.</p>

<p>Appeal. Before Judge Fite. Catoosa superior court. May 30, 1904.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. May 30, 1904.</p>

<p>Certiorari. Before Judge Fite. Catoosa superior court. August 3, 1904.</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. February 5, 1904.</p>

<p>. Certiorari. Before Judge Henry. Floyd superior court. February 10, 1904.</p>

<p>1. The affidavit of the plaintiff in error, in forma pauperis, under Civil Code, §5613, made in a foreign State, before an officer of such State, is insufficient unless the official character of the attesting officer is properly authenticated.</p> <p>2. The allegations of the petition did not set forth a cause of action, and the court properly sustained the demurrer and dismissed the petition.</p>

<p>Action for damages. Before Judge Gober. Douglas superior •court. January 5, 1904.</p>

<p>Complaint. Before Judge Longley. City court of LaGrange. January 13, 1904.</p>

<p>Action for damages. Before Judge Bartlett. Haralson superior court. August 13, 1904.</p>

<p>Application for dower. Before Judge Freeman. Troup superior court. January 27, 1904.</p> <p>On October 28, 1901, Thomas M. Kener, as next friend for Mary J. Kener, filed an equitable petition in her name against the LaGrange Mills, a corporation, in which it was alleged that she is now insane and was insane at the date of the death of her husband,-Godfred Kener, which took place in June, 1879; that her husband died seized and possessed, in his own right, of a described parcel of land; that the defendant has been in possession of this land for a term of fifteen years, receiving the rents and profits thereof; that Peavy, who was administrator of her husband’s estate, has -been discharged, and there is now no legal representative on the estate; that the lands described in the petition were never administered by the legal representative; that dower has never been assigned to her; that she has been for years an inmate of the Georgia State Sanitarium; that she is entitled to rents of the property in possession of the defendant from her husband’s death until her dower is assigned; that she claims dower in the land; that the statutory remedy for the assignment of dower is inadequate, and it is necessary to invoke the aid of a court of •equity ; and she prays that her right to dower be established; that commissioners be appointed to set the same apart; that if it can not be set apart in the land, the land be sold, and dower be assigned to her out of the proceeds of the sale; and that an accounting be had for the value of the rents, issues, and profits of the land. By amendment, the allegation that the administrator had been discharged was stricken, and it was alleged that Peavy was still in office as administrator; and by proper order he was made a party to the suit. It was also alleged by amendment, that after the death of plaintiff’s husband an execution against .him was levied upon the land, and the same was sold at sheriff’s sale in 1879, and that the defendant claims under the purchaser at such sale. The LaGrange Mills filed a demurrer on the grounds, that the petition set forth no grounds for the relief prayed for; that it Was multifarious, containing a misjoinder of parties and also a nonjoinder of necessary parties, to wit, the purchaser at the sheriff’s sale, the children of Godfred Kener, and the trustees of the Georgia State Sanitarium; that, no application for dower having been filed within seven years from the death of the intestate, the widow is now barred from claiming dower; that a next friend or prochein ami, has no right to apply for dower for one under disability, without authority from some court, or to elect for her between dower and a child’s share; that, under the facts alleged, equity should interpose an equitable bar to the proceeding, even if there is no bar under the ordinary statute of limitations; that the widow having been, before the death of her husband and ever since, in the State Sanitarium at the expense of the State as its ward, suits in her behalf should be brought by the trustees of the sanitarium; and that the petition is defective, in that it does not make the persons through whom the LaGrange Mills derives title parties. The court struck all allegations of the petition which sought to charge the LaGrange Mills with rents prior to the time when it went into possession, and then overruled the demurrer. The LaGrange Mills excepted.</p>

<p>Certiorari. Before Judge Freeman. Meriwether superior court. February 24, 1904.</p>

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

<p>Complaint. Before Joseph E. Pottle, judge pro hac vice. Greene superior court. August 13, 1903.</p>

<p>The plaintiff proved his case exactly as laid in the petition, and it was error to sustain a motion to nonsuit.</p>

<p>The court having incorrectly instructed the jury as to the meaning of the written contract involved in the case, the refusal of a new trial was erroneous.</p>

Action for damages. Before Judge Lewis. Baldwin superior court. July 12, 1904. The suit was on account of injury to fertile bottom land by causing it to be sanded and overflowed with water. A creek ran through the land and crossed a public road that ran by it. Before ■ the work complained of, travelers on the road forded the creek.

Action for damages. Before Judge Hodges. City court of Macon. June 10, 1904. The plaintiff, an old man, accompanied by an elderly woman, was driving in a buggy on the Houston road, outside of the city limits of Macon, between 9 and 10 o’clock on the night of March 23, 1903. There was no moon, but. the stars were shining.

<p>A party is bound, at his peril, to submit on the trial all competent evidence in his favor he has at hand. If he had knowledge of the fact and the same could have been proved at the trial by evidence other than that newly discovered, a new trial will not be granted, unless the movant can satisfactorily explain why he did not attempt to use the evidence then at hand.</p> <p>A stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly discovered evidence than to an ordinary motion on that ground.</p>

<p>1. Where a party has given any statutory bond with security for the payment . of the eventual condemnation-money, or to produce the property sued for or levied on, and a judgment adverse to the principal in such a bond has been rendered, the security therein can not be surety on a new bond required in a proceeding seeking a reversal.</p> <p>2. In such a case not only has the surety obligated himself to the opposite party, but the judgment against his principal binds the surety. The appeal or certiorari is as much for his interest as for that of his principal, and he could no more be surety for himself than the principal could be surety on such second bond.</p> <p>5. So, if a damage bond is given in a claim case, and a judgment is rendered finding the property subject, and awarding damages on the ground that the claim was interposed for delay only, the surety on the claim bond can 'not be security on a bond given in a certiorari or appeal from such judgment.</p> <p>4. But where such damage bond is given, and the verdict finds the property subject, but there is no finding that the claim was interposed for delay, the effect thereof, for the time, is to relieve the surety from liability under the bond; and not then being in any way bound to the plaintiff, he may be security on a certiorari bond given by the claimant.</p> <p>6. If the certiorari is sustained, there is a discharge from liability under the certiorari bond. The obligation on the damage bond is thereby revived. But iii such case the surety can never be liable, as in case of appeals, on both bonds.</p>

Action for damages. Before Judge Fite. Dade superior court. March term, 1904. This was a suit by a dependent father, for the homicide of his ■son who contributed to his support.

<p>Levy and claim. Before Judge Hamilton. City court of Floyd county. March 19, 1904.</p>

<p>Action for damages. Before Judge Henry. Eloyd superior court. June 27, 1904.</p>

<p>, Action for damages. Before Judge Henry. Walker superior court. August 17, 1904.</p>

<p>Action for damages. Before Judge Irwin. City court of Polk county. June 24, 1904.</p> <p>The alleged cause of action was, that the plaintiff’s husband, Weaver, a flagman in the employment of the defendant iailroad company, was killed as the result of the negligence of the conductor and engineer" of the defendant’s freight-train, in the following manner: The train came to a station where, upon a side-track, were standing two cars loaded with lumber, apart from eacb other. The' side-track was on a grade, and the wheels of these two cars-were scotched witb blocks of wood. Part of the train was run on the side-track to take on these cars, and, "before reaching them, came to a stop in response to a signal from Weaver, who thereupon, in obedience to an order of the conductor and in pursuance of his duty, went between the two cars to remove the blocks of wood and to put the coupling apparatus in position. While so situated with the knowledge of the conductor and the engineer, and before the coupling apparatus could be arranged, the conductor, without warning to Weaver, gave to the engineer a signal to come with the train, and the engineer thereupon caused the train to come rapidly and with great force against the cars, catching Weaver between the drawheads of the coupling apparatus.</p>

<p>Complaint. Before Judge Freeman. City court of Newnan. May 21, 1904-</p>

<p>Levy and claim. Before Judge G-ober. Douglas superior court;. January 5, 1904.</p>

<p>Levy and claim. Before Judge Freeman. Troup superior court. May 5, 1904.</p> <p>On October 17, 1898, upon notes in which the right to homestead and exemption was waived, Zachry obtained judgments against Smith, and the executions that issued thereon were levied, November 12, 1898, on certain land. On October 12, 1898, Smith filed his petition to be adjudged a bankrupt, and a'trustee in bankruptcy was appointed. Smith claimed the land so levied on' as an exemption, and it was set apart to him as such by the trustee, and this was allowed by the bankrupt court. No homestead or exemption proceeding was taken before the ordinary of the county. In due time Smith was discharged in bankruptcy. Zachry did not prove his claim in the bankrupt court. Upon these facts the judge of the superior court held tire property subject to the executions, and Smith excepted. Counsel cited Ga. B. 118/387; 115/684; 79/79; 69/842; 65/427, 684; 55/579; 53/485; 47/453.</p>

<p>Equitable petition. Before Judge Evans ; motion for new trial before Judge Freeman. Heard superior court. July 2, 1904.</p>

<p>Complaint for land. Before Judge Reagan. Henry superior court. April 18, 1904.</p>

<p>Levy and claim. Before Judge Lewis. Greene superior court. March 19, 1904.</p>

<p>1. The judgment of the ordinary allowing a widow and her minor children a year’s support is conclusive only that she is entitled tó the amount of the judgment if there be assets to pay it; and such judgment is no evidence that the administrator has sufficient assets of his intestate with which to pay it.</p> <p>2. The widow and minor children of a deceased partner are entitled to a year’s support only in what remains of the deceased partner’s interest after payment of partnership liabilities.</p> <p>3. The evidence for the plaintiff was sufficient to authorize the submission of the case to the jury, and the grant of a nonsuit was error.</p>

<p>Certiorari. Before Judge Lewis. Laurens superior court. August 5, 1904.</p>

<p>Motion for new trial. Before Judge Adams. City court of Dublin. August 31, 1904.</p> <p>This case was tried at the June term, 1904, of the city court of Dublin. The defendant filed a motion for a new trial during the term, and the rule nisi was made returnable on June 27, “at the court-house in Dublin.” An order provided that the brief of. evidence should be presented for approval “on or before that'date, or in default the motion will be dismissed.” On June 27, an order was passed which recited that the brief of evidence had not been prepared, owing to sickness in the family of the stenographer, and that the hearing was for that reason postponed until July 9, the movant to have all the rights as to filing the brief of. evidence which were allowed in the first order. On July 9, the judge was absent from the county, and no action was taken on the motion. On July 11, an order was passed fixing the time for the hearing on July 16, and purported to give to the movant all the rights accorded him in the original order. On July 16, an order was passed postponing the hearing until August 22, which order also purported to give to the movant all of the rights conferred by the original order with reference to filing a brief of the evidence. On August 22, the judge was again absent from the •county, and no action was taken on the motion. On August 31, in vacation, the judge passed an order reciting that as there was no agreement consenting to an order preserving the right of movant until that date to present for approval a brief of the evidence, and counsel for' the respondent having made a motion to dismiss the motion for a new trial on that ground, the motion was ■accordingly dismissed. To this order the movant excepted.</p>

<p>1. There is a difference between fact and evidence tending to establish, a fact.</p> <p>2. In his charge the judge may define what are the elements going to make up an offense, and instruct the jury that if they find from the evidence that the facts constituting these elements are established they may find the defendant guilty.</p> <p>3. But the trial judge may not go from the general to the particular and so. charge in reference to the testimony as to intimate whether the facts constituting the elements of the crime have or have not been established ^</p> <p>4. There was no error in the charge as to how the State was to prove that the defendant knew the goods were stolen, it appearing from the succeeding sentence that the jury were instructed and must have understood that positive and direct evidence of such knowledge need not be adduced, but that, it might be inferred from circumstances.</p>

<p>Complaint. Before Judge Fite. Whitfield superior court. April 5, 1904.</p> <p>Mrs. Smith, brought an action against Mrs. Moore, formerly Mrs. Price, alleging, in substance, as follows: The defendant is indebted to the plaintiff in the sum of $1,725, besides interest. In 1883 Dr.-Price, who was then the husband of the defendant, employed the plaintiff to nurse his and the defendant’s invalid minor child, agreeing to pay the plaintiff a stated compensation per week for her services. After' the plaintiff had remained in Dr. Price’s home for one year under .the aforesaid agreement, Price contracted with the plaintiff that if “ she would remain with them and take care of the said minor son (Tom) of Price and defendant, until his death, petitioner should share Ms estate equally with said son and. the said defendant.” The plaintiff faithfully complied with her part of this contract and took care of the child until 1902, when, the child died, “ which was then a full performance of her part of said agreement and contract.” Dr. Price died in 1897, “ and the said defendant, well knowing said contract, ratified the said contract and agreed that it should be carried out,” and plaintiff continued to nurse the child, which services were accepted by the defendant. The.estate of Dr. Price is worth over $5,000, and the plaintiff is entitled to the sum aforesaid, which the defendant is in possession of, and refuses to pay. The plaintiff previously sued out an attachment to enforce the payment of the sum due her, and had the same levied upon described property. Garnishments were also served upon named persons. If for any reason the plaintiff is not entitled to specific performance, she alleges that her. services were worth $1,720, and she prays judgment for that sum, to be satisfied by a sale of the property attached, and for a judgment against the garnishees. The defendant demurred to the petition, on the ground that it set forth no cause of action against, her; the cause of action, if any is set forth, being against the estate of Dr. Price, and no reason is set forth why suit is brought against the defendant. The court allowed the plaintiff, over objection of the defendant that it set forth a new cause of action, to file an amendment to the petition, alleging that there 'were no debts due by the estate of Price except the one sued on, and no necessity .for administration, the only parties interested being the parties to this suit. The amendment further alleged that after the defendant took possession of the property of the estate she agreed that if plaintiff would continue to care for the minor child during his life, she should have half of the property which the defendant had received from her husband’s estate. It is alleged that the plaintiff performed the services in question upon the faith of this-agreement, and that the defendant has become liable to the plaintiff for the value of one-half of the property of the. estate, for which judgment is prayed. The court overruled the demurrer, and the defendant excepted, assigning error upon this judgment and upon the allowance of the amendment.</p>

<p>Ejectment. Before Judge Eite. Bartow superior court. August 15, 1904.</p>

<p>A railroad company is not liable in damages for an assault and battery com- ■ mitted upon an intruder on its premises by an agent or employee who at the time was acting, not within the scope of his employment, but wholly outside of the general authority with which he had been clothed by the company.</p>

<p>Actions for damages. Before Judge Longley. City court of LaGrange. May 23, 1904.</p>

<p>1. The assent of the executor to a devise of lands perfects the inchoate title of the devisee.</p> <p>2. Where land is devised to one for life with remainder over to another, the executor’s assent to the devise for life inures to the benefit of the remainderman, and at the termination of the life-estate the remainderman may take immediate possession of the property unless the will shows a different intention.</p> <p>3. The assent of the executor “when once given is in general irrevocable, although the assets may prove insufficient to pay the debts.”</p> <p>4. Where, under the executor’s assent to a devise for life with remainder over, the remainderman, after the death of the life-tenant, becomes entitled to the immediate possession of the land, such land is no longer any part of the estate of the testator nor subject to be sold to pay debts, of such estate; and the ordinary' has no power or jurisdiction to order the land sold as part of the estate- In such case, although the ordinary has granted an order of sale, the executor, having no title or right to the land, can not recover it from the remainderman or from a third party, whether the latter have good title or not.</p>

<p>Indictment for bastardy. Before Judge Hodnett. City court 'of Carrollton. September 5, 1904.</p>

<p>Where the sole and. controlling issue in a case was whether, as contended by the plaintiff, he had sold goods upon the credit of a married woman to whom he delivered the same, or whether, as she insisted, credit therefor was extended to her husband, it was prejudicial error to allow the plaintiff to testify that, contracting on her own account, she had rented rooms from him.</p>

<p>Application for mandamus. Before Judge Gober. Fannin superior court. September 10, 1904.</p>

<p>1. Error was sufficiently assigned in each hill of exceptions. There were two cases disposed of hy the superior court, and a hill of exceptions in each case was necessary to review each adverse judgment. The motion to dismiss the bills of exceptions oh the grounds of insufficient assignment of error, and that two bills of exceptions had been sued out in one and the same case, is denied.</p> <p>2. The issue raised hy the filing of an affidavit of a contesting creditor to a landlord’s lien for supplies, as provided in the Civil Code, § 2816, is triable at the term of court succeeding the filing of the contesting affidavit.</p> <p>3. It is error to refuse a first continuance when it is shown that the party is ill and his counsel states in his place that he can not safely go to trial without the presence of his client.</p>

Certiorari. Before Judge Fite. Catoosa superior court. August 6, 1904. Mrs. Harris sued Mrs. Daly iu a justice’s court on a note for fifteen dollars, representing the balance due on the purchase of a Jersey cow which had. been sold for thirty dollars, with a cash payment of fifteen dollars. _ The defendant filed a plea which was equivalent to one of rescission, on the ground that the quality, condition, and value of the cow had been misrepresented.

<p>Action for damages. Before Judge Eite. Whitfield superior court. May 30,1904.</p>

Foreclosure of security deed. Before Judge Henry. Floyd superior court. February 2, 1904.

<p>Complaint for land. Before Judge Henry. Floyd superior court. June 28, 1904.</p> <p>This was an action instituted by J. A. Anderson and M. A. O’Byrne, as receivers of the “ Southern Mutual Building and Loan Association.” The petition alleged, in substance, as follows: On November 26, 1894, William Barney executed to the building and loan association a deed to a described tract of land to secure a loan. Barney has since died, and E. P. Treadaway has been appointed administrator of his estate. There is now due on the debt of Ramey to the association a named sum. Mrs. William Ramey, widow of William Ramey, has, since February 5, 1897, been in possession of the land described in the deed, receiving the rents and profits, and refuses to surrender possession to plaintiffs. Mrs. Ramey and Treadaway as administrator refuse to pay the balance of the debt to the association, although the same is past due. The prayers were, (1) that writ of possession issue in favor of the plaintiffs to the land described in the deed; (2) that they have judgment against Mrs. Ramey for rents and profits since January 1, 1897; (3) “ that if the equity of the case demands, that they have judgment against E. P. Treadaway, administrator as aforesaid, for their debt, principal and interest, with . . a ■special lien against the premises described; ” (5) that process issue against Mrs. Ramey and Treadaway as administrator. Pending the action, Anderson, one of the plaintiffs, died,. and Weaver as coreceiver was made a party plaintiff in his stead. Mrs. Ramey demurred to the petition, on the grounds of misjoinder of parties defendant and misjoinder of causes of action, in that plaintiffs sought to unite in one suit an action ex delicto against. Mrs. Ramey, to wit, the recovery of land, and an action ex contractu, to wit, a recovery against the administrator on the debt ■of his intestate. There were also special demurrers to certain paragraphs of an amendment to the petition. The court struck •one of the paragraphs of the amendment, and overruled the other grounds of the demurrers. Mrs. Ramey excepted.</p> <p>Upon the call of the case in this court the defendants in error moved to dismiss the writ of error, (1) because the association of which they.were receivers is described in the bill of exceptions as “The Southern Mutual Loan Association of Atlanta, Ga.,” and in the petition as “ The Southern Mutual Building & Loan Association of Atlanta, Ga.;” (2) because E. P. Treadaway as administrator is not a party to the bill of exceptions; and (3) because the judgment complained of is not matter for a direct bill of exceptions, but only for exceptions pendente lite in the trial court until a final judgment in the case is rendered. In response to the first and second grounds of the motion to dismiss, counsel for the plaintiff in error moved to amend the bill of exceptions by the record, to correct the misnomer in the description of the loan association, and to make E. P. Treadaway as administrator a party plaintiff in error with Mrs. Ramey.</p>

Equitable petition. Before Judge Gober. Douglas superior court. September 24,1903. This was an equitable petition against the Douglasville Mineral Land and Improvement Company, Georgia Western Cotton Mills, New Century Cotton Mills, and J. S. James, for the recovery of certain land, cancellation, removal of cloud, and for an accounting.

Complaint. Before Judge Freeman. Troup superior court. March 19, 1904. Viney and her husband, Jacob Tanner were indebted to the plaintiff Lee. The wife’s debt was represented by a note, and that of the husband by an account and also by a mortgage. ' Lee brought suit against the wife on the note. She pleaded payment of a certain sum for which she claimed credit.

<p>A promise by the cashier of a bank, made without consideration to the drawer of a draft, to pay the same out of funds of a customer on whom the draft is drawn and who has been credited with the proceeds of negotiable paper which he as owner transferred to the bank, is not enforceable against the bank, unless the customer assents that the bank shall make such an application of the funds so placed to Jiis credit.</p> <p>The court fully and fairly covered by its charge every issue raised by the pleadings which the plaintiff had a right to have the jury pass upon; and the verdict in favor of the defendant was warranted, if not demanded, by the evidence.</p>

<p>Complaint for land. Before Judge Lewis. Jasper superior court. January 11, 1904.</p>

<p>Petition for injunction. Before Judge Lewis. Jasper superior court. July 11, 1904.</p>

Probate of will. Before Judge Lewis. Greene superior court. August 9, 1904. On November. 14, 1892, Mrs. Anna McWhorter Grant executed her will, naming as her sole heir her niece Edith McWhorter. Her husband, William L. Grant, died in 1894, and afterward she married Joshua Oneal.

<p>Equitable petition. Before Judge Lewis. Greene superior court. August 26, 1904.</p> <p>An equitable proceeding was brought by Mrs. Sarah H. Cheney against W. P. McWhorter. In her petition the plaintiff set forth the following statement of facts: On September 25, 1869, her husband, E. R. Cheney, had set apart to him, as the head of a family, a homestead in a certain (described) tract of land in Greene county, for the benefit of his family, consisting of petitioner and several minor children. He died on March 21, 1902, leaving her „the sole beneficiary of the homestead, his youngest child having attained his majority on September 13,1896. About the year 1881, E. R. Cheney desiring to run an account with the defendant, and the latter being unwilling to credit him without 'security, an arrangement was made between them whereby Cheney brought a petition for leave to sell the homestead property for the ostensible purpose of reinvesting the proceeds in lands in Jackson county, and, in pursuance of an order obtained from- the court granting leave to sell, executed and delivered to McWhorter a deed conveying to him the homestead premises for a recited consideration of one thousand dollars. By this arrangement Cheney obtained credit at the store of McWhorter, and became indebted to him from year to year until 1884. McWhorter having then declined to make further advances, a supplemental petition was filed by Cheney, asking the leave of the court to reinvest the proceeds of the alleged sale to McWhorter in certain lands in Oglethorpe county. After the prayer of this supplemental petition had been granted by an' order of the court, petitioner “ joined with her said husband in a deed to said land, of date Nov. 28, 1884, which deed” was duly recorded, conveying “the premises aforesaid to W. P. McWhorter for a consideration therein recited of twenty-five hundred "dollars.” _ In point of fact, “ McWhorter parted with only $366.68 in actual cash at the time said second deed was made, and the remainder of the consideration stated therein was a settlement of the open account and other debts which had been made by her said husband to said McWhorter,” including certain security debts which her husband had assumed, among them a debt of some $600 which had been charged against him in settlement of an open account due McWhorter by J. S. Cheney, an adult son of petitioner and E. R. Cheney. The .deed first above referred to “ was made in execution of a plan devised or participated in by the defendant, W. P. McWhorter, having for its object the obtaining by him of homestead property as security for debts then in existence and thereafter to be concocted, and not for the purpose of bona fide purchasing said property;” and the “deed and conveyance of date Nov. 28, 1884, was made to said McWhorter in settlement of debts or obligations due at the time to him by said E. R. Cheney, and said deed was not made in good faith for the purpose of conveying to him homestead property for the purpose of reinvesting the proceeds thereof.” The petition of plaintiff’s husband for leave to sell and reinvest was filed with the full knowledge of McWhorter, “in compliance with an agreement which had already been entered into between [them], whereby said McWhorter was to make advances to said Cheney and take the deed to the land as security,” and the petition presented to the court “deliberately and intentionally misrepresented the truth of the transaction.” Both of the orders obtained from the court, as well as the deeds made in pursuance thereof, “were in execution of a Scheme and device entered into for the purpose of deliberately setting aside and undoing the homestead which had been granted for the benefit of petitioner and her minor children, and for the evasion and setting aside of the rights guaranteed to petitioner in said homestead by the laws and constitution of this State.” The defendant “having participated in said scheme, the same is a fraud, the deeds made to him in pursuance thereof are fraudulent, null and void, and he has no shadow or right of title to said property, or the possession thereof, as against the homestead rights of petitioner.” ' The defendant went into possession of the property in the year 1886; has since enjoyed the rents and profits thereof, of the yearly value of $300.00, and is liable to account therefor. No part of the $366.68 paid in cash by McWhorter to plaintiff’s husband was in fact reinvested by the latter in other property, and petitioner has received no benefit from the payment of that amount, but has been deprived of her entire interest in the homestead property and its income. The prayers of the petition were: (1) that the deeds made to McWhorter be canceled as fraudulent and of no effect; (2) that the collusive sale of the homestead premises be declared void for fraud; (3) that plaintiff be granted a decree providing for her occupancy and enjoyment of the homestead premises for the remainder of her natural life; (4) that she have judgment for mesne profits for the time defendant has been in possession of the premises; and (5) that she be granted such other relief as the facts entitle her to receive.</p> <p>The defendant filed a demurrer to the petition. The plaintiff was then allowed to amend, over the defendant’s objection, by setting up the following additional facts: The defendant was a merchant at the time the transactions mentioned in plaintiff’s petition took place, and he kept correct and complete books. These books, which are still in his possession and which were recently examined with his consent by petitioner’s attorney, will disclose the “truth of petitioner’s case.” W. B. Wilson, the guardian ad litem appointed by the court when the homestead order to sell was granted, is in life. “ Said McWhorter therefore has in his possession every fact and all the evidence he needs, and the ascertainment of the truth will not be more difficult because of delay, and he is not hurt because suit was not instituted sooner.” During the life of plaintiff’s husband, he “refused to bring this suit; and when petitioner’s sons attempted to bring it for her, he objected thereto and prevented the same.” The defendant has always realized that his claim to the land is “defective;” has never repaired or improved the property, though fully able to do so, “because he anticipated this suit;” and as the minor children of petitioner and her husband arrived at age the defendant “ endeavored to obtain deeds from them to their interests in this land, thereby indicating knowledge that he had no valid title thereto.” After the allowance , of this amendment, the defendant renewed his demurrer, but the court overruled the same. Exception is taken both to the allowance of the amendment and to the judgment overruling the demurrer to the petition as amended. The demurrer was based upon the general ground that the petition was without equity, and also upon a number of special grounds, one of which presented the objection that “the petition shows such laches in' the petitioner as that she should not be relieved.”</p>

<p>1. Under the allegations of the plaintiffs’ petition the trust therein attempted! to be set up was an express one.</p> <p>2. “All express trusts must be created or declared in writing.”</p> <p>3. Inasmuch as the petition does not show that the trust can not be established by written evidence, the petition is not demurrable because it fails to allege that the trust was created or declared in writing.</p>

<p>Motion to set aside judgment. Before Judge Henderson. City court of Vienna. January 27, 1904.</p> <p>Suit was brought, returnable to the October monthly term, 1903, of the city court of Vienna. The process required the defendant to “ appear at the next monthly term of the city court of Vienna, on the third Tuesday in Oct. next, then and there to answer,” etc. The sheriff made a return of personal service upon the defendant of “a copy of the within writ and petition.” On November 27, at the November monthly term, judgment against the defendant was rendered, reciting that the suit was based on an open account, that the defendant’s plea had been stricken, and that the case stood in default. In January thereafter the defendant moved to set aside the judgment, on the grounds, that he was never served with any process to appear at the monthly term, never filed any plea to the monthly term or authorized any one to So so for him, never waived service and copy of process, and never had opportunity to plead in said suit; that he had a good defense, and.had not had his day in court; and that in response to the copy process served on him, requiring him to “ appear at the Oct. quarterly term, 1903,” of said court, he filed his plea and answer at said term. Ou demurrer the motion was overruled, and the defendant excepted.</p>

<p>1. The misnomer of the municipality in a petition to validate bonds under the act approved December 6, 1897 (Acts 1897, p. 82), does not vitiate the judgment of confirmation, where it appears that the officers of the municipality acknowledged service of the petition and answered the same under* oath -in its true corporate name, and the judgment of validation also sets forth the proper corporate name of the municipality.</p> <p>2. The published notice prescribed in section six of said act is designed to give the citizens of the municipality, county, or division, information of the pending proceeding, and a substantial compliance with the statute is sufficient.</p> <p>3. Where the validating proceeding, which was served on-the municipality, was described in the published notice by the caption : “State of Georgia vs. The Town of Louisville, Jefferson County,” and there is no municipality in Jefferson county having the corporate name of the Town of Louisville, but 'there is a municipality in that county with the corporate name of the City of Louisville, such notice is sufficient to notify the citizens of the City of Louisville of the proceeding to validate the bonds of that municipality.</p>

<p>1. The superintendent of a waterworks company had apparent authority to make contracts generally on behalf of the company with its customers, though in reality his authority was limited by the rules and by-laws of the company to the making of contracts at the regular rates charged for water. These rates were generally known to the public, but the limitation on the authority of the superintendent was not. The plaintiff made a special contract with the company through the supérintendent, knowing that the rate charged him was lower than that usually charged by the company, but not knowing, and not being chargeable with knowledge, of the superintendent’s lack of authority in this respect. Held, that the contract, being within the apparent authority of the superintendent, whicji the company held him out to the world as possessing, was binding on the company.</p> <p>2. A contract by the -terms of which a waterworks company agrees to furnish water to a consumer at a greatly reduced rate, the consumer agreeing on his part to lay his own pipe and put in his own fixtures, at an expense of several hundred dollars, and to allow the company to tap his pipe for the purpose of supplying other customers with water, is not void for lack of mutuality, even though the consumer be under no obligation to take the water for any given length of time. Especially is such a contract binding on the company when it is executed on the part of the consumer.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. November 16, 1903.</p>

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

<p>1. The ordinance of the City of Atlanta (Municipal Code, see. 1841), declaring it unlawful to hold public meetings in the streets of that city without the consent of the municipal authorities, is not unconstitutional either because it curtails or restricts the liberty of speech, or makes an arbitrary discrimination in favor of some persons against others, or because the city had no legal power to enact it; nor is such ordinance void upon the ground that it is an unreasonable and oppressive exercise of police power.</p> <p>2. The act approved December 19, 1893 (Acts 1893, p. 173), entitled, “An act to amend the charter of the City of Atlanta, to wit, the act incorporating the City of Atlanta, approved February 28th, 1874,” etc.,.and empowering the mayor and general council of such city to provide by ordinance for the regulation of public meetings and public speaking in its streets, by preventing the obstruction of the same or the gathering of disorderly crowds thereon, is not violative of that provision of the constitution which prohibits the passage of any statute containing matter different from that which is expressed in the title thereof. Sayer v. Brown, 120 Ga. 539, and cit.</p> <p>3. Where it appeared that the accused violated a municipal ordinance for the previously announced purpose of testing its constitutionality, it was not error to refuse to continue the case made against him, merely to give his counsel time to investigate the constitutional questions claimed to be involved therein.</p> <p>4. The allegations in the petition for certiorari as to the circumstances which it-was claimed disqualified the mayor, as acting recorder, to try the petitioner were not only not verified by the answer, but were expressly denied therein. Neither did the answer verify the stajjfflients made in the petition in reference to the petitioner being required^^Ber the sentence imposed, to work upon the public works. “ Points made in a petition for certiorari not verified by the answer of thel triajpudge present nothing for determination either by the superior or thfe Supreme Court.ll</p> <p>6. When the penalty is left by\the statute to discretion of the trial judge, within certain fixed limits, his judgment will not be disturbed, upon the , ground that the sentence was excessive, if the penalty imposed does not exceed the limit provided.</p> <p>6. Where complaint was made in a petition for certiorari that the trial court overruled objections to the testimony of named witnesses upon designated subjects, without setting forth, either literally or in substance, the testimony to which the objections were made, .an assignment of error that the court erred in overruling such objections was not well' taken.</p> <p>7. The certiorari was properly overruled.</p>

<p>Under the decision in Bush v. Keaton, 65 Ga. 296, where it does not affirma-. tively appear that service of a bill of exceptions was made or waived after the certificate of the presiding judge was attached, the writ of error must be dismissed upon motion.</p>

<p>Accusation of carrying concealed weapon. Before Judge Foute. City court of Cartersville. November 4, 1904.</p>

<p>Conviction of manslaughter. Before Judge Henry. Walker superior court. October 28, 1904.</p>

<p>Accusation of unlawful sale of liquor. Before Judge Foute. City court of Cartersville. October 15, 1904.</p>

<p>Conviction of manslaughter. Before Judge Parker. Wilcox ■superior court. October 22, 1904.</p> <p>Ashley McDuffie was charged with the murder of John Blue, and found guilty of voluntary manslaughter. He made a motion for a new trial, which was overruled, and he excepted. While the killing was admitted, the evidence was sharply conflicting as to the circumstances attending the homicide. For the State there was evidence tending to show that Blue was marshal of Pineview; that, hearing firing of pistols in the corporate limits, he went towards the place where the shots were fired, and met McDuffie returning from that locality. A witness for the State testified that McDuffie fired the shot. This was denied by defendant and another witness. When the marshal met McDuffie a conversation took place between them as to whether McDuffie had fired the weapon, during which time it is claimed that McDuffie became boisterous and cursed, and, when threatened with arrest, stated that he would not submit. Blue put his hand üpon him, telling him to consider himself under arrést. Immediately thereafter blows passed, though who struck first did not appear from the evidence for the State. That for the defense was to the effect that Blue struck the first blow with his club. There was some evidence as to a blow on Blue’s, head and of blows and contusions on the head of McDuffie. In the altercation McDuffie fired, killing Blue. There was also evidence, that in talking to a person who had been arrested by Blue, McDuffie said the latter could not arrest him; and that he had procured a pistol on the day of the homicide, stating that he was going to kill a man with it if he tried to arrest him that night; and that on another occasion he stated that if Blue ever attempted to arrest him he was going to kill him. For the defense this was denied. There was testimony of statements by Blue that he wanted an opportunity to arrest McDuffie, and that he would lock him up or do as Barfield had done Miller. This was supplemented by testimony as to a difficulty between Barfield and Miller. The defense attempted to go into the particulars of this trouble, showing the bad feeling between a State’s witness and McDuffie. The witness admitted that his feelings had been bitter, but testified that they were not so at the time of the examination. The court refused to. allow the particulars of the trouble to be inquired into. The defendant excepts to this ruling, and also to the refusal of the court to allow counsel to ask a witness for the State why he was in a certain house; the witness objecting to make answer, and it appearing from the brief here that it was intended to he shown that it was a lewd house.</p>

<p>Certiorari. Before Judge Daley. Emanuel superior court. October 22, 1904.</p>

<p>There being nothing in the evidence or the statement of the accused which would authorize a finding that the act charged was brought about by his criminal negligence, a charge to the effect that criminal negligence would supply the place of intent was calculated to mislead the jury, and it was error to refuse to grant a new trial oh an assignment of error complaining of such charge.</p>

<p>Indictment for incest. Before Judge Roberts. Irwin superior icourt. November 3, 1904.</p>

<p>Indictment for selling liquor to minor. • Before Judge Proffitt. City court of Elberton. November 28, 1904.</p>

<p>Indictment for disturbing divine worship. Before Judge Lewis. Putnam superior court. ' November 14, 1904.</p>

<p>Indictment for simple larceny. Before Judge Spence. Worth superior court. November 28, 1904.</p>

<p>Indictment for murder. Before Judge Henry. Floyd superior eourt. December 13,1904.</p>

<p>1. The General Assembly has no power to create a city court and provide for a direct writ of error therefrom to the Supreme Court, in any municipality other than an incorporated city. Lampkin v. Pike, 115 Ga. 827, and cit.</p> <p>2. A recital in an act establishing a city court, that the court is established in a named “city,” when the municipality referred to is in fact not a city, is not binding upon the courts. Savannah By. Co. v. Jordan, 113 Ga. 687 t Lampkin v. Pike, 115 Ga. 827, 831; Mitchell v. Lasseter, 114 Ga. 275, 281.</p> <p>3. The municipality of Sylvester being a town at the date of the establishment of a city court therein, no writ of error lies to the Supreme Court from that court.</p>

<p>A “ suit club,” whose members pay to a tailor one dollar per week, and which holds weekly drawings as a result of which the member holding the lucky number receives from the tailor a suit of clothes and then ceases to. be a member of the club, is a scheme in the nature of a lottery. This is so although an unlucky member who continues to pay his dollar weekly fox-thirty weeks is entitled to a thirty-dollar suit of clothes regardless of the result of the drawings.</p>

<p>Conviction of manslaughter. Before Judge Daley. Emanuel superior court. November 15, 1904.</p> <p>At the April term, 1902, of Bulloch superior court, John Griffin was indicted for aiding Oglesby to escape from jail. Griffin gave bail, with Collins as surety. Griffin having failed to answer, the bond was forfeited. R. E. Collins, the son of the surety on the bond, called on the officers to have Griffin arrested, it appearing that at the time he was in the county. According to the testimony for the defendant, the officer stated that he° could not attempt to make the arrest just at that time, but advised that an offer of a reward be made. In compliance with this suggestion R. E. Collins, the son, offered a reward to Remer Coleman and Elzie Coleman if they would arrest Griffin. At the same time he put in their hands a warrant issued by I. W. Martin, and addressed to any sheriff, deputy sheriff, coroner, constable, or marshal of this State, commanding them to arrest the body of Griffin, who was charged, on the affidavit of R. E. Collins, with the offense of “ resisting legal process.” Elzie and Remer Coleman, having this warrant, proceeded to the place where Griffin lived, and found him in the cotton-field. They invited him to go hunting. Griffin consented. He had a pistol in hffi pocket, and carried a Winchester rifle. The party drove off, Griffin being seated in the foot of the buggy, the two Colemans on the seat. There were no eye-witnesses to the transaction. The State offered as a witness Lawson Mercer, who testified, that Elzie Coleman “said they had started hunting, and he said he didn’t even think he would have to kill this man; he said he thought the man would give up; he ' didn’t' think he would have to kill him. He said, they were going to try to arrest him; and he said, when they got down there a piece, it seemed like he went to draw his pistol and told Griffin to consider himself under arrest, and the other gentleman, Mr’. Griffin, he drawed his, just commenced to pull his, I think, as he took his out, and told him to consider himself under arrest. When he told him that, Mr. Griffin made up in here (left breast pocket) for. his, and it seemed that Mr. Griffin fired at him, and he slapped the pistol down, and that time he said he had to fire himself to save his life. And he said then Mr. Griffin jumped out of the buggy and went to make around the buggy and dashed off and went a piece and fell.” On cross-examination the witness testified, Coleman said “ he had a warrant in his pocket, and told Mr. Griffin to consider himself under arrest, and, at the same time he told him that, he then and there prepared himself for .any resistance that might be made by Griffin by going for his gun — he took out .his revolver, and before h'e got his revolver Griffin out with his and shot; that Griffin got the pistol from under his coat or vest and shot at Coleman, and Mr. Coleman told me that after he had been fired upon, that he then shot Griffin. I won’t say whether he was in the buggy when he shot him or when he turned around the buggy. But it was after Coleman had been shot. He said that as Griffin shot at him, he slapped the pistol down as he fired.” “Griffin was known as a law-breaking man, and had the reputation of being a bad man in the community.” Another witness testified, that Griffin was shot in the left side, the ball ranging down.</p> <p>Eor the defendant there was testimony, that Griffin had been out of the county for some time, and that as to one warrant he had said that he “ was not going to submit, but would die before he would be arrested.” His reputation for violence was bad. Remer Coleman, who was in the buggy at the time of the occurrence, testified that “he heard Élzie Coleman, the defendant, tell Griffin to consider himself under arrest, and the firing commenced at once; “that Griffin drew his pistol and fired at Elzie; that about that time Elzie shot him.” The defendant, in his statement to the jury, said, that after driving “about a quarter of a mile I told Griffin to consider himself under arrest, and when I did so he drew his pistol from a pocket in his overalls, and when he drew his pistol I drew mine, and just as he threw it in my face I knocked it down time enough to save it from shooting me in my face, and when he fired, I fired.” Coleman exhibited to the jury a place on his left leg where Griffin’s shot took effect.</p> <p>The judge charged on the law of murder, manslaughter, and justifiable homicide; and after the jury had been- out some time, they returned and asked to be charged on the subject of involuntary manslaughter, to which the court replied, “The law.of involuntary manslaughter is not applicable in this case,” and then gave instructions as to murder and voluntary manslaughter when the homicide was in a heat of passion.. Error is assigned on this charge, on the ground that there was no evidence tending to show the deed was done in the heat of passion, but the contention being that it was done on a sudden impulse when dealing with a notorious character for violence, to protect one’s own life.</p>

<p>Accusation of stabbing. Before Judge Hodges. City court of Macon. December 10, 1904.</p> <p>The accusation charged that William Baker did “unlawfully make an assault upon Cleve Johnson and with a certain knife did cut and stab said Cleve Johnson not in self-defense and not under any other circumstances of justification.” There, was a verdictj of guilty, and an exception to the overruling of a motion for a new trial. The ground of the motion was that it did not appear from the evidence beyond a reasonable doubt that the cut or stab was made, as alleged, with a knife. On this point the testimony was as follows (in addition to the exhibition to the jury of the wound on Cleve Johnson’s arm, it being a ragged scar about an inch in length on the left forearm). Johnson testified: “ Baker' came running towards me with his hand drawn back, and cut me in the arm. . . I don’t know what he cut me with; whether it was a knife or a razor.” Another witness testified: “ I saw him when he was cut. . . Baker cut him with something on the arm. I don’t know whether it was a razor or a knife. I saw only the blade; it was about one and a.half inches long. . . I saw him with his hand raised. I could not see whether it was a razor or a knife in his hand.”</p>

<p>1. The title of an act being “An act to prohibit the sale of ” liquors of a given character, in a named county, “ and for other purposes therein mentioned,” legislation in the body of the act was authorized, providing that the prohibition against the sale of the liquors should not become effective in such county until an election was had and the result was in favor of such prohibition. See Mayor of Macon v. Hughes, 110 Ga. 795; Mayor of Americus v. Perry, 114 Ga. 871.</p> <p>2. When an act makes penal the sale of intoxicating liquors, and in a subsequent section provides that the prohibition shall not prevent practicing physicians from furnishing such liquors to their patients, it is not necessary, in an indictment for a violation of the act, to allege that the sale was not by a practicing physician. Kitchens v. State, 116 Ga. 847; Rumph v. State, 119 Ga. 121.</p> <p>3. The courts will take judicial notice of the result of a prohibition election, whether the same was held under the general local option liquor law or a local act providing for such election. Woodard v. State, 103 Ga. 498, and cit.</p> <p>4. When in the progress of an investigation of a case by the grand jury it develops from the testimony of a witness that an offense has been committed altogether disconnected from the case under consideration, it is entirely proper for the grand jury to cause a special presentment to be preferred for such offense and require the witness to appear and be sworn on the consideration of the presentment thus preferred. It is not only the privilege but</p> <p>■ the duty of the grand jury to present all offenders where the offense comes to their knowledge during the time of their service, and it is immaterial in what way the information is received.</p> <p>5. Where a motion is made to continue a criminal case upon the ground that the accused is physically unable to go to trial, and upon such question the testimony of medical experts introduced as witnesses is conflicting, the discretion of the trial judge in overruling the motion will not'be controlled. McDaniel v. State, 103 Ga. 269.</p> <p>6. That a person accused of crime was improperly brought into court under an order of the judge can not properly be made a ground of a motion for new trial. McDaniel v. State, supra.</p> <p>7. When a criminal case is called for trial and a motion for a continuance is made, the judge has a discretion to either continue the case or postpone the same until a later day in the term ; and this is trae whether the term lasts longer than thirty days or not. The act of 1893 (Acts 1893, p. 56),. now embraced in the Penal Code, § 961, does not interfere with the exercise of this discretion by the judge, that act merely providing that where the court lasts more than thirty days a continuance shall not be had if the ground upon which it is sought can be removed before the end of the term.</p> <p>8. It is not an abuse of discretion to refuse to postpone a case to a later hour in the day in order to allow counsel time to prepare a demurrer and plea, when no reason appears why such demurrer and plea were not prepared before the case was called for trial; and when it appears that the matters upon which the plea was based could have been ascertained before the case was called, and that the court suspended the trial in order to allow counsel time to prepare the demurrer and plea, such refusal will .not be held erroneous.</p> <p>9. Even if a motion to continue a criminal case can be properly entertained in the absence of the accused, the judge is not required to do so. If the absence is due to providential cause, this will be a sufficient answer to a rule nisi on a forfeiture of the bond.</p> <p>10. The evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.</p>

Indictment for seduction. Before Judge Mitchell. Brooks superior court. December 9, 1904. On the trial of. Pike for seduction, the prosecutrix testified “ that she lived with her father, stepmother, brother, and sister.” Over the objection of the defendant that the same was irrelevant, she was allowed to testify that the mother was dead. Over like ob-. jection she was permitted to testify that the defendant was the father of her child.

<p>Indictment for arson. Before Judge Littlejohn. Webster superior court. November 25, 1904.</p>

<p>Indictment for murder. Before Judge Daley. Tattnall superior court. November 5, 1904.</p>

<p>Accusation of trespass. Before Judge Henderson. City court of Vienna. November 15, 1904.</p>

<p>Indictment for larceny after trust. Before Judge Seabrook. Muscogee superior court. December 17, 1904.</p>

<p>1. Under the police power, laws may be passed for regulating common occupations which from their nature afford peculiar opportunity for imposition and fraud.</p> <p>2. Because of its value, the ease with which it is taken from the field, and the difficulty of detecting the thief, the State may regulate the sale of seed-cotton, and fix a punishment upon the person who buys in violation of the terms of the statute.</p> <p>3. The question as to the constitutionality of the local act for Muscogee county is controlled in principle by the decision in Jenkins v. State, 119 Ga. 439.</p> <p>4. The indictment followed the terms of the statute, and was not subject to demurrer because of the failure to describe the land on which the seed-cotton was grown. The evidence supported the verdict, and it was not error to refuse to grant a new trial.</p>

<p>Petition for injunction. Before Judge Hammond. Richmond superior court. November 19, 1904.</p>

<p>1. Though the premises were not described, in the petition with sufficient fullness, yet the description was not so indefinite but that an amendment more particularly describing the premises was allowable.</p> <p>2. A grantor in 1852 conveyed land by deed to a named trustee, his heirs and assigns. The habendum clause was: “ To have and to hold the said tract or parcel of land to the said [trustee], his heirs and assigns forever, upon the special confidence and trust, nevertheless, for the sole and separate use of Nancy R. Lee and her children during the-natural life of or widowhood of said Nancy R. Lee, and at her death or marriage this trust to cease and the property to be equally divided between the children of said Nancy R. Lee living at her death, share and share alike; with full power to said [ti-ustee], with the consent of said Nancy and her husband, to sell said property and invest the proceeds in other property. To have and to hold the said tract or parcel of land with all and singular the rights, members,, and appurtenances thereto appertaining, to the only proper use, benefit, and behoof of him, the said [trustee], upon the trust aforesaid and for the use aforesaid, [his] heirs, executors, administrators, and assigns, in fee simple.” Mrs. Lee died in 1900 without remarriage. Held: (1) The estate created was a joint life-estate in Nancy R. Lee and her children during the life of Mrs. Lee, with a fee-simple estate in remainder to the children of Nancy E. Lee who survived her; (2) that the trustee took the legal title to the life-estate only ; and (3) that the power of sale conferred on the trustee was a special personal trust and one which did not pass to a successor.</p> <p>3. The power of sale referred to in the preceding headnote expired with the death of the trustee. The judge of the superior court, upon petition of one of the beneficiaries at chambers, could appoint a successor to the deceased trustee, but was without jurisdiction over the legal estate in remainder so as to confer upon the new trustee the power of sale vested by the deed in .the deceased trustee.</p> <p>i. Coincidence of two independent estates presently held by one and the same person, or class of persons, is a necessary prerequisite to merger. There can be no merger of estates until such identity of person and of present interest in point of fact exists. u</p> <p>5. As the trustee did not represent the estate in remainder, and there was no merger of estates, the possession of the defendant did not become adverse to the remaindermen until the death of the life-tenant.</p> <p>6. The estate in remainder by the terms of the deed was limited to the smv viving children of Mrs. Lee. Heirs of a child who died before Mrs. Lee died took no interest in remainder under the deed.</p> <p>7. The evidence was insufficient to support the equitable plea that the proceeds of the land improperly sold by the substituted trustee were invested in other land which was conveyed to him as trustee for his wife and children, and which had been partitioned between the plaintiffs.</p>

<p>1. Where the issue tried was whether the note sued on was executed for the plaintiff’s accommodation, and there was direct and positive testimony submitted by both parties in support of their respective contentions, and the court instructed the jury that as the defendant admitted the execution of the note the burden rested upon him to prove his defense to the satisfaction of the jury, the mere failure to charge that the holder of a negotiable promissory note is presumed to be such bona fide and for value was not cause for a new trial.</p> <p>2. Refusal to give an oral request to charge was not cause for a new trial* though made in response to an inquiry by the judge to the counsel, “ if there was anything else they desired charged.”</p> <p>S. There was no material error in admitting evidence.</p> <p>4. Interrogatories, though read in evidence, should not be delivered to the jury. Where the court, over the objection of the party against whom the verdict was rendered, sent to the jury, after they had retired to deliberate as to their verdict, interrogatories which had been read in evidence and which were calculated to influence the jury in favor of the prevailing party, a new trial should have been granted.</p>

<p>Action for damages. Before Judge Freeman. City court of Newnan. February 9, 1904.'</p>

<p>The rulings, instructions, and judgment brought under review by this writ of error were not in accordance with the judgment and direction of this court when the case was formerly here ("117 Ga. 733J, the direction then given having been misconstrued by the trial judge.</p>

<p>1. It is reasonably to be expected of a railway employee, who is engaged in the performance of duties in and around one of the freight yards of his master, that he shall avail himself of his opportunities to familiarize himself with his surroundings and note the location of a culvert passing under an embankment along which tracks are laid, to the end that he may guard against the obvious danger of falling into the culvert in the event his duties call him in the night-time to the point where it is situated; and if he be injured by falling into the same, he can not be heard to say that though he knew of its existence, and notwithstanding he had previously had full opportunity to acquaint himself with its relative location, he did not in point of fact know exactly where it was, and that his master should have warned him of the danger of falling into it before sending him at night to attend to his duties on and around an engine which had been left directly over the culvert.</p> <p>£. The charge of the court touching the right of the plaintiff to recover was not adjusted to the law and facts of the case on trial, and unjustly deprived the-defendant company of one of its main defenses ; irrelevant and prejudicial evidence was admitted over its objection; and these and other errors committed should have persuaded the trial judge to grant a new trial, irrespective of the question whether the evidence sufficiently supported the finding of the jury.</p>

<p>Equitable petition. Before Judge Russell. Walton superior court. August 18, 1904.</p>

<p>Action for ..damages. Before Judge Hamilton. City court of Floyd county. .May 9, 1904.</p>

<p>Action for damages. Before Judge Hodnett. City court of Carrollton. June 7, 1904.</p>

Action for damages. Before Judge Roan. Monroe superior court. June 11, 1904. Anderson brought suit against the plaintiff in error for damages occasioned by a sudden start of the train while he was standing on the bottom step of the platform, claiming that he had been induced to put himself in this position by reason of the negligent and improper announcement of the station before the train reached the usual stopping-place. The verdict was for the plaintiff.

<p>The act of December 24th, 1832 (Acts of 1832, p. 207!, conferring jurisdiction upon the justices of the peace of the .Indian Springs district of Butts county to remove obstructions from the streets of the Indian Spring (or McIntosh! Reserve, is not applicable to the walks and promenades on the ten-acre lot embracing the mineral spring. The streets referred to in this act were those laid out in the plan of subdivision of the original McIntosh Reserve in conformity with the act of 1827 (Acts of 1827, p. 119).</p>

<p>1. The facts disclosed by the record present a meritorious case for the reopening of the decree.</p> <p>2. While parties can not by consent confer jurisdiction upon a court which has none, they may, either expressly or by their conduct, waive objections to remedies pursued in courts having jurisdiction of the subject-matter.</p> <p>3. The objection to the remedy pursued not being made in the proper manner and not being insisted upon in the court below, and the case having been heard and determined upon its merits without reference to such objection, a waiver in reference to the remedy resulted.</p>

Equitable petition. Before Judge Lewis. Jasper superior court. January 11, 1904. This was an action by the heirs at law of a decedent against his widow, who was in possession of a tract of land which had been set apart as her dower, upon which land we.re situated the mansion house and other improvements.

Affidavit of illegality. Before Judge Lewis. Laurens superior court. July 26, 1904. The Hilton & Dodge Lumber Company foreclosed a mortgage dated August 14, 1896, on personal property in the manner provided iu the Civil Code, § 2753. The mortgagor, Anderson, defended by the counter-affidavit allowed by the Civil Code, § 2756.

<p>Levy and claim. Before Judge Butt. Marion superior court. January 11, 1904.</p>

<p>Affidavit of illegality. Before Judge Butt. Taylor superior court. March 18, 1904.</p>

<p>The amendments allowed when the case was returned to the court below did not cure the defect apparent in the petition when it was before this court on a former occasion (119 Ga. 363), to wit, that it was necessarily inferable from the plaintiff’s allegations that her son, for whose homicide she sued, could, by the exercise of reasonable care, have avoided the consequences of , the defendant’s negligence; and it was therefore not error to sustain the demurrer to the petition as amended.</p>

<p>1. The description of the land in a deed must be sufficiently certain to afford means of identification. A deed purporting to convey land which is so indefinite in description that the land is incapable of being located is inoperative either as a conveyance of title or as color of title.</p> <p>2. Possession of land can not be established by family repute.</p> <p>3. In an action of ejectment between an administrator of an intestate and one not a privy in estate, it is error to admit in evidence the application of a former administrator for leave to sell the land of his intestate.</p> <p>4. The description -of land assigned as dower must be sufficiently certain to locate the premises before third persons will be affected by the dower proceedings.</p>

<p>Ejectment. Before Judge Butt. Harris superior court. July 16, 1904.</p>

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

<p>Action for damages. Before Judge Crisp. City court of Americus. February 11, 1904.</p>

<p>Complaint for .land. Before Judge Littlejohn. Dooly superior court. March 1, 1904.</p>

<p>Ejectment. Before Judge Littlejohn. Sumter superior court. August 1, 1904.</p>

<p>Trover. Before Judge Henderson. City court of Vienna. August 22, 1904.</p>

<p>1. A contract between a bank and a lumber manufacturer, whereby the bank agreed to advance to him a certain sum of money, but the manufacturer was not bound to take the whole or any part of said sum unless he found it necessary in conducting his business, was unilateral, in that there was no binding obligation on the part of the manufacturer to bQrrow any definite sum of money.</p> <p>2. Where, in a suit to recover on certain promissory notes, the sole defense is a plea of recoupment claiming damages for a breach of a contract which appears from the evidence to have been unilateral, a verdict for the plaintiff is demanded by the evidence, and any possible errors in admitting or excluding testimony relating to the breach of such contract, or any error in the charge of the court respecting the same, can not afford cause for ordering a new trial.</p>

Trover. Before Judge Bower. City court of Bainbridge. June 8, 1904. Laura L. Wing (doing business under the name of Wing & Son) brought an action against Mrs. O’Donnell for the recovery of a piano and four dollars a month rent. It appeared that the plaintiff sent to W. P. Jones at Bellwood, Fla., on April 1, 1901, a circular containing instructionsHow to order a piano on trial. Sign and return trial order. No advance payment is required.

Foreclosure of lien. Before Judge Humphreys. City court of Moultrie. May 24, 1904. ■ Jenkins made his affidavit to foreclose a laborer’s lien under the Civil Code, § 2816, for $290.96,' against the Moultrie Lumber Company, claiming a lien upon all the personal property of the defendant, and particularly upon certain lumber and shingles therein described. Execution issued, and a levy was made on March 25, 1904.

<p>Complaint on note. Before Judge Humphreys. City court of Moultrie. June 8, 1904.</p>

<p>1. An agreement between a number of merchants and a corporation provided that the former should print the names of the latter in its subscribers’ directory and circulate a number of «opies of the book in a named city, and that the merchants should purchase of the corporation a number of so-called trading stamps, to be delivered to customers with their purchases (and not to be otherwise disposed of), and by them preserved and pasted in the books furnished by the corporation until a certain number had been secured, when they should be presented to the corporation in exchange for the customer’s ehoice of certain articles kept in stock by the corporation. Held : (1) That the furnishing of the trading stamps by á, merchant to his customers did not constitute a business separate and distinct from that of selling merchandise, but was merely an instrumentality in or an incident to that business, being in its nature incapable of such separate existence as to constitute of itself a business in either a commercial or a legal sense. (2) That authority in a municipal charter “to make just and proper classification of business for taxation,” and “to classify business and arrange the various business, trades, and professions carried on in said city into sucli classes of subjects for taxation as may be just and proper,” did not authorize the passage of an ordinance separating from the business of selling merchandise the incident of furnishing trading stamps for the purpose of increasing the sale of merchandise and classifying the furnishing of such stamps as a separate business subject to taxation. (3) That, whether the furnishing of the trading stamps.be treated as a gift or as a part of the contract of sale of the merchandise which is delivered at the time the stamps are furnished, the furnishing of the stamps does not constitute a business subject to be taxed under charter authority to classify and tax business. (4) That the word “business” in a commercial or legal sense means something done or carried on for a livelihood, profit, or the like. (5) That even if the General Assembly is authorized to impose a tax upon one who gives away his property, the giving away of property is not a business within the meaning of a charter provision authorizing the taxation of business.</p> <p>2. An application for an injunction, filed jointly by 'the trading stamp company and one or more merchants who are its customers, seeking to enjoin the collection of a tax imposed under an ordinance of the character above referred to, is not bad for misjoinder of parties.</p> <p>3. Persons against whom an unlawful exaction in the form of a tax is sought to be made may unite in an application for an injunction to restrain the collection of the tax, and are not compelled to pay the same and bring separate suits against the tax officer for damages.</p>

<p>Where, in a peace-warrant proceeding, one has been committed to jail in default of a bond requiring him to keep the peace, a writ of habeas corpus can not bring into review alleged irregularities or errors of procedure in the trial before the committal court, or questions as to the sufficiency of the evidence upon which the applicant in the writ was committed.</p>

<p>1. On the trial of one indicted for a violation of the Penal Code, §420, prohibiting the running of freight-trains on the Sabbath day, it is not error to admit evidence of any violation of the law prior to the finding of the indictment and within the statute of limitations!</p> <p>2. The word “destination,” as used in the second exception to section 420 of the Penal Code, means the point at which the train finally stops, and not the point at which it crosses the State line.</p> <p>3. Where, on the trial of the superintendent of transportation of a railroad company for a violation of the code section referred to in the preceding headnotes, it appears that the accused knew of and was responsible -for a schedule of the railroad company, the compliance with which necessitated a violation of the law, it is not error of which he can complain that the court charged the jury that he might justify himself by proving that the employees of the company acted in direct violation of his orders and rules, but that “ mere general orders and rules would not be a justification under the statute.”</p> <p>4. Nor in such a case is it error to refuse to charge (especially in the absence of a written request^ that the accused could not be found guilty if it appeared that he did not know that the train had been run in violation of law, if such was the fact, until after it was so run.</p> <p>6. An indictment for a violation of the Penal Code, § 420, need not allege that the train for the running of which the accused is charged to be responsible was not within any of the statutory exceptions to that section. Allegations to that effect are mere surplusage, and need not be proved to warrant the conviction of the accused.</p> <p>6. Upon a review of the case of Jackson v. State, 88 Ga. 787, the same is reaffirmed.</p>

<p>Complaint on note. Before Judge Hodges. City court of Macon. August 5, 1904.</p>

Injunction. Before Judge Holden. Elbert superior court. October 20, 1904. It being the purpose of the City of Elberton, for general waterworks and sewerage, to divert water from Beaver Dam creek, a non-navigable stream, some miles from the city limits and at a point above the plaintiff’s mill property situated upon that creek* she prayed for an injunction to prevent such appropriation.

<p>Injunction. Before Judge Holden. Elbert superior court. November 14, 1904.</p> <p>The City of Elberton served upon the plaintiff a notice of its •desire to condemn the right to use water from Beaver Dam creek for its waterworks and sewerage system, naming an assessor and requesting the naming of one by the plaintiff, these two to name, a third, and the three to meet on the premises and assess the damage to be done to the plaintiff’s property. She thereupon petitioned for an injunction to stop the proposed condemnation proceeding, alleging, among other things, that she needs all the water of the creek flowing over her property, for the purpose-of properly operating and developing it; that she intends soon to reconstruct the dam (which has been washed away by high water) so as to operate her mill and gin machinery, and it is essential to her rights that no part of the water be permanently diverted from the stream; that even a partial diversion of the water would ruin the value of the property as a water power, and. cause to. her damage that could not be estimated and for which she could not be adequately compensated; that the city has no legal power to condemn the water or the right to divert it from the creek; and that, even if it had such authority, it has made no effort to procure from her any property or right, has refused to negotiate with her or to offer her any price for the same or to request her to name a price, etc. The city answered, that the plaintiff would not be damaged by anything it contemplated doing in the erection and operation of its waterworks and in diverting water from the creek; and that, knowing that she claimed a large amount of damages as liable to accrue to her therefrom, and knowing that there was no chance to arrive at a just and fair adjustment of the difference between her and the city by any offer to pay or to settle, it proceeded to condemn the right to use the water.' On the bearing it introduced the affidavit of a civil engineer of experience, to the effect that the amount of water that would be diverted by the city would not affect the water power at the plaintiff’s mill. The injunction was granted, and the city excepted.</p>

0Petition for mandamus. Before Judge Lumpkin. Oobb superior court. November 12, 1904. This was a mandamus proceeding instituted by J. Gid. Morris,, who claims to have been duly elected treasurer of the County of Cobb at an election for county officers held in that county on October 5, 1904.

<p>Exceptions to auditor’s report. Before Judge Ereeman. Troup superior court. July 1, 1904</p> <p>Willis Miller, for the benefit of himself and also for the benefit of his daugbter-in-law and grandchildren, conveyed certain land to bis son H. W. Miller, trustee. There was no power to sell conferred upon the trustee. The land described in the trust deed was claimed by Butler under sheriff’s deed. He was also prosecuting a suit against Willis Miller on a debt antedating the trust deed, with a view of enforcing the judgment entered thereon. Thereupon Willis Miller and H. W. Miller, trustee, filed a bill against Butler, to enjoin this common-law suit, and to remove the cloud on the title created by the sheriff’s deed held by Butler. He answered, attacking the trust deed on several grounds, among others, that it was void because Willis Miller, the grantor, had therein reserved a benefit to bimself. Pending the suit Willis Miller died,-and his administrator was made a party..plaintiff. In May, 1895, a verdict was rendered in favor of the defendant, establishing the validity of his title to the land, and also entering a decree in his favor for $2,590. Several years thereafter (March, 1900) H. W. Miller as trustee, and the cestuis que trust under the trust deed above recited, brought an equitable petition against Butler, alleging that the verdict above referred to had been taken by consent under an agreement by which Butler undertook to levy the execution to be issued thereunder on certain land belonging to Willis Miller, agreeing also that at the sale he would buy in such land and convey the same by absolute deed to H. W. Miller and his wife. The petition alleged that within the last few months he on demand had failed to carry out this agreement. It was claimed that the children were not parties to the original suit. There was a prayer that Butler should be forced to carry out his agreement as to H. W. Miller and Mary Miller. It was charged that Butler had failed to carry out the agreement, and that such was fraudulent conduct, and it was prayed that the decree should be set aside for fraud. Butler demurred; and subsequently the petition was amended, by which the complainants prayed that if they were not entitled to specific ^performance of the contract made by Butler, they be awarded damages for its breach. The court sustained the demurrer, and the trustee and beneficiaries under the trust deed excepted.</p>

<p>Levy and claim. Before Judge Lewis. Jones superior court. July 11, 1904.</p> <p>On October 1, 1895, Mrs. Julia McKay executed a mortgage to J. C. Johnson on several tracts of laud in Jones county. Among the property thus mortgaged was “ all that tract of land in Jones county, Georgia, containing 153 acres, known as the Zachariah Emerson place, part of lot No. 125 in the 11th district, and part of No. not known.” Also, “the Thomas Bazemore place, containing 196 acres more or less, joining the land of Sarah Emerson, Elisha Owens, Madison Bazemore, and H. I). McKay.” The execution and levy followed the description in the mortgage. H. A. McKay, executor of G. W. F. McKay, filed a claim. At the trial the plaintiff introduced a deed from Hammock, administrator of Zachariah Emerson, to Hugh McKay, dated September 5, 1854, describing the 153-acre tract as in the mortgage. Also, a deed from Thomas J. Bazemore to Hugh McKay, dated September 28, 1848, describing the 196-acre tract exactly as it was 'described in the mortgage. , It was admitted that the mortgagor, Mrs. Julia McKay, was the sole heir at law of Hugh McKay. The plaintiff testified that Hugh McKay was in possession of these two places at the time of his death, and that after his death his widow went into possession thereof and remained in possession until she settled the suit between herself and George McKay. These two places adjoined and lay broadside of each other. She was in possession of these lands at the date of the execution of the mortgage to the plaintiff. On cross-examination he testified that he knew she was in possession, from going on the land with 'her, and in assisting in collecting the rent; did not.remember what was the year. “ I may have stated in the former trial that what I knew about her possession I got from her.” Do not know when the husband died. “My recollection is that she was in possession in 1894. What I know about her possession is what she told me, and from going upon the place with her to collect the rent. The mortgage is dated October 1, 1895. She was collecting rents for that place at that time. I got the description ■of the laud from the deeds placed in my possession.” There was much evidence seeking to establish the boundaries of the Emerson and Bazemore places described in the mortgage; and a plat thereof made by Chiles, a surveyor, who ran the lines according to information derived from persons who’ pointed out a hedgerow which formed a part of one of the lines, and indicated what they thought were the lines. Maj. Jones, who pointed out some of the lines and assisted the surveyor, testified “ I do not think I could go around any of these places now and show the lines. I do not know anybody that could.” The surveyor who made the map testified that it was “correct according to the information obtained from Major Jones. Lot 125 in the 11th district is from five to seven miles away from these lands.” Other witnesses for the plaintiff testified as to what they knew concerning the boundaries of the two tracts, stating also that what they knew as the Bazemore and Emerson places would be contained in a tract of 1,143. acres as the same was described in the petition resulting in the. decree on which the claimant relied.</p> <p>The evidence for the claimant tended to show that it was impossible to identify the lines of the Bazemore. and Emerson places, on which the plaintiff claimed to have a mortgage. The claimant, also introduced the record of a suit between Mrs. Julia McKay and George W. McKay. In it she set out a contract, made in 1856, between Sarah McKay and her two sons Hugh and George. It. recited that Sarah McKay was the owner of certain property for-life, that she had theretofore given off to her two sons certain property, and that they had divided it among themselves. Under-this division 1,143 acres therein described had been assigned as. the portion belonging to Hugh McKay. “ This agreement is only to affect property that ha.s come into possession of the said George, and Hugh from the said Sarah, and not what may have come into. their possession from other sources, there having been land and railroad stock heretofore sold, and the proceeds of the same have-been equally divided between the two sons. They are hereby prohibited from calling on each other to respond for any part of ■the proceeds thereof, further than has already been done.” There, was also attached a copy of the will of Hugh McKay, the husband and father of the parties to this agreement, in which the devise of his estate was to his wife for life, and after her death the property was to be equally divided between the two sons, or the whole to go to the survivor of them, should they not then be both in life, to them and their heirs forever. The theory of her petition was that under the contract of 1856 the 1,143 acres of land became the absolute property of the mortgagor Julia McKay’s husband Hugh, but that when the latter died in 1891 George McKay improperly entered and took possession of the-land, claiming the same as his own. The petition alleged that George had possession of the papers, and petitioner was not able accurately to describe the property. She' did, however, describe the 1,143-acre tract as adjoining M. T. Bazemore on the east, William Paulk on the north, Gordon, on the northeast, Finney on the southwest, George. McKay on the southeast, said lands lying-on the waters of Town creek in Jones, county. This petition alleged that these lands were acquired by Sarah McKay by pur-. chase from various persons with the proceeds of property bequeathed for life by her husband; that Sarah McKay died in 186 — ; and that petitioner’s husband, Hugh McKay, died in 1891. This petition was filed on March 25, 1895. George McKay’s answer to this suit was filed on April 16, 1895, several months before the execution of the mortgage from Julia McKay to Johnson, the plaintiff in fi. fa. In his answer he admitted possession of the 1,143 acres, claiming that right of possession and title vested in him under the contract of 1856 and the will of his father on the death of Hugh McKay, petitioner’s husband, without children. On October 19, 1896, there was a verdict finding “for the defendant the premises in dispute covered by the declaration.” A decree was entered accordingly, but the land was described as 1,123 acres more or less; and instead of following the petition and contract, naming the coterminous proprietors as they existed in 1856, the decree gave the names of the coterminous proprietors as they existed at the time it was entered. This appears from the testimony of a witness, Tom Gordon, who shows that the adjoining landowners as described in the decree would have been a good.description of the entire tract of which Hugh McKay died in possession. And by other evidence in the case it appears that the Bazemore and Emerson places were included in the land of which he died possessed. In the decree there was an order that the defendant pay cost. The claimant relied on the decree, the contract of 1856, the will of Hugh McKay Sr., and offered evidence to show that George McKay, the claimant’s testator, was in possession of the 1,143 acres containing the Bazemore and Emerson places at the time of the execution of the mortgage. He offered evidence that one of the places was not cleared, that the other one was rented, and that George McKay collected the rent for 1895.</p> <p>There have been three trials in the case. The plaintiff in fi. fa. made a motion for a new trial, on the ground that the verdict was contrary to law and to evidence; and because the court erred: (1) In the charge on the subject of lis pendens and the notice by the suit between Julia McKay and George McKay. (2) In allowing parol evidence to be considered to show that the Bazemore and Emerson places were included in the property therein referred to, movant contending that the suit would only be notice affecting him if it on its face showed that the Bazemore and Emerson places formed a part of the subject of the controversy. (3) In refusing to permit Johnson to testify that he had no actual notice of the suit. (4) In excluding the evidence of Johnson that hé knew where the lines of the home placé were; that Hugh McKay showed him the lines. (5) In admitting the evidence of Major Jones (on cross-examination): “ I only know what Chiles surveyed from what Henry McKay told me. According to what Henry showed me he was not on the Emerson line.” This was objected to as hearsay. The motion was overruled, and the plaintiff excepted.</p>

<p>A judgment rendered against an administrator, purporting to revive a judgment, whicli was dormant, but which, so far as the record discloses, was barred,, there being no entry on the execution within ten years after its issuance, is not void, and can not be collaterally attacked by the heirs at law of the decedent in the trial of a claim interposed by them to the levy of an execution issued on the revived judgment.</p>

<p>Levy and claim. Before Judge Butt. Talbot superior court. May 6, 1904.</p>

<p>Action for damages. Before Judge Sheffield. Quitman- superior court. March 14, 1904.</p>

<p>Complaint. Before Judge Crisp. City court of Americus. January 6, 1904.</p> <p>Tbe Confederate Publishing Company, a corporation, brought suit against H. E. Allen, as executor of the will of J. H. Allen, upon a written contract of which the following is a copy:</p> <p>“Americus, Ga., Dec. 8th, 1900.</p> <p>“ Confederate Publishing Co.: Please. deliver to me the 12 volumes of your Confederate History, for which I will pay you or order, on demand, the sum of $60.00, and the books shall be shipped to me or left at my residence or place of business. I understand no definite time can be promised for delivery. I waive all right to countermand this order, basing my subscription solely on the representations on the back hereof. [Signed] J. H. Allen.” On the back of this contract appeared ~a statement, signed by the Confederate Publishing Company, setting forth the character; scope, and design of the work, which statement, taken as a whole, constituted an undertaking on the part of the plaintiff to publish and deliver the books referred to in the foregoing order. It was alleged that the books were delivered to the defendant, and that he refused to pay for the same. The defendant filed an answer, in which he alleged that for want of sufficient information he could neither admit nor deny the allegations in reference to the making of the contract, but denied that the books were ever delivered to him. He specially pleaded that no attempt was made to fulfil the contract until after the death of the testator; that the books were of peculiar value to the testator, but of no value to his ‘ heirs; and that therefore his death terminated the contract. The defendant further pleaded that the estate of J. H. Allen had been duly administered, and that plaintiff had not filed with the defendant a notice of its claim within twelve months from the date of hjs qualification, as required by law. These special pleas were stricken on demurrer, and error is assigned on this judgment. By amendment the defendant pleaded that the contract had been rescinded, and that the question of the liability of the estate on the contract was, by agreement with an agent of the plaintiff, submitted to the decision of an attorney at law, such agent agreeing that the attorney’s decision should be final; that the decision of such attorney was that there was no liability; and that the defendant had never accepted the books, and, while they were in his possession, they had ever been subject to the plaintiff’s order. At the conclusion of the evidence the judge directed a verdict for the plaintiff, and error is assigned upon the judgment.</p>

<p>A railroad company owes to a trespasser walking upon its tracks the duty not to hurt him wilfully, or negligently after his presence becomes known to its servants in charge of one of its trains.</p> <p>In view of the presumption of negligence raised by law against the defendant company, the evidence introduced in behalf of the plaintiff was such as, if not overcome by evidence showing due diligence on the part of the company, would authorize a recovery by the plaintiff ; and accordingly it was error to grant a nonsuit.</p>

<p>1. If the fact of suretyship does not appear on the face of a note, it may he proved by parol; and the relative position of the makers’ names is immaterial, if one is surety of the other. A charge to this effect is not erroneous because the court failed to add that as a presumption of fact the first name ' was that of the principal.</p> <p>2. The law controlling the issues made by the pleadings was fairly charged by the court; the evidence fully warranted the verdict, and no reason is shown for disturbing the judgment denying a new trial.</p>

<p>1. An allegation in a petition by two plaintiffs, that certain personalty therein described is “the property of petitioners,” is in effect an averment that, they are joint owners thereof, there being nothing in the petition to'indicate several ownership by one or the other in any portion of the property.</p> <p>2. That portion of the petition which contained the averments of negligence was sufficient as against the demurrer filed,thereto.</p> <p>8. The assignments of error on the admission of evidence were not well taken.</p> <p>4. The fact that a witness is an employee of one of the parties is a proper mat-, ter to be considered by the jury in passing upon his credifiility.</p> <p>5. The extracts from the charge which were assigned as error were not subject to the objections made thereto. The evidence warranted the verdict, and there was no error in refusing to grant a new trial.</p>

<p>1. Coterminous landowners may by agreement assume an obligation to maintain a partition fence, each agreeing to keep up a designated part; and if the hogs of one enter the land of the other through a defect negligently left in that part of the fence which the first was bound to repair, he is Liable for the damages done by such hogs.</p> <p>2. The validity of the obligation of the coterminous owners to maintain a sufficient fence against their stock is not affected by the fact that they do not contemplate maintaining and do not in fact maintain a fence of such character and height as to constitute a lawful fence under the statute. By agreement they can take their fence, relatively to the rights of each against the other, from under the operation of the statute.</p> <p>3. Where in such case 'the owner of the hogs agreed that the amount of the damages should be submitted to arbitration, and that certain of the hogs should be retained by the party injured as a pledge for the payment of the damages assessed, and subsequently the owner of the hogs refused to make a submission to arbitration, the pledgee could recover the reasonable ex' pense in the mean time incurred by him in feeding such hogs.</p>

Action for damages. Before Judge Spence. Calhoun superior court. January 25, 1904. . Dukes brought suit against the Southern Cotton Oil Company, for personal injuries sustained while working as an employee of the defendant in an oil-mill.

<p>1. The character of an action is determined hy the facts recited in the petition and the nature of the relief prayed, and not by the particular phraseology employed by the pleader ; and where a petition sets out substantially a cause of action of a given kind, a new and distinct cause of action is not added by an amendment striking out words which inaccurately describe ■ the transaction declared on.</p> <p>2. A contractor was under contract with the City of Albany to bore for it an artesian well. In order to obtain materials necessary to the completion of his contract, he requested the municipal authorities to pay to a dealer in such materials a portion of the amount that would be due him on the completion of his contract, up to a certain amount. This sum was in payment for materials already bought but not paid for, as well as for materials subsequently to be purchased. The city agreed to do this, and so notified the dealer, who furnished the materials on the faith of this agreement. There was no obligation on the part of the city to pay any money unless the contract was fulfilled, and it was distinctly understood that the money to be paid was only a part of that which would be due to the contractor. Held, that the agreement of the city .was not a contract of guaranty or suretyship, and was not in contravention of article 7, section 6, paragraph X, of the constitution of Georgia ("Civil Code, §5891) ; and that a demurrer to a petition containing such allegations was properly overruled.</p>

<p>Equitable petition. Before A. G. Powell, judge pro hac vice. Decatur superior court. May 16, 1904.</p>

<p>Where a certiorari has heen sued out, taking a case from an inferior judicatory to the superior court, and a traverse is filed to the answer hy the plaintiff in certiorari, such traverse may he verified hy his attorney at law.</p>

<p>1. In order to properly present for decision by the Supreme Court the question whether or not error was committed in admitting given evidence, the complaining party must make it appear not only that the evidence was admitted oyer his objection, but also what grounds of objection he urged before tbe trial court at the time the evidence was offered.</p> <p>2. Where the promoters of a railroad mutually agree to render, without compensation, their personal services in furthering tire enterprise, one of them who performs services in pursuance of the agreement can not exact payment therefor from the railway corporation receiving the benefit of the same. Such an agreement does not lack a good and valuable consideration; and though the corporation be not a 'party thereto, it may, as matter of defense, negative any implied promise on its part to pay for the services so rendered, by showing that they were performed for its benefit under that agreement. If one of the parties to it is a partnership, the members of which assent to its terms and undertake to comply therewith, services performed by one of the partners are legally to be regarded as having been rendered by the partnership and not by him as an individual.</p> <p>S. The court fully, fairly, and correctly submitted to the jury the contention of the plaintiff that the services performed by- him were rendered, not in pursuance of any such agreement, but under circumstances from which the law would imply a promise by the defendant company to pay therefor what they were reasonably worth.</p> <p>á. A charge to the effect that it is incumbent on a plaintiff to make out his case, in every essential element, “to the satisfaction of the jury,” is not calculated to so operate to his prejudice as to afford cause for a new trial, when it appears that he made no request to charge as to how the burden of proof resting upon him could be successfully carried.</p> <p>5. In charging upcta the contentions of the defendant, the court did not express any opinion as to what had been proved. The evidence fully warranted the finding of the jury, and for no reason assigned should the verdict be set aside.</p>

Action for damages. Before Judge Bower. City court of Bainbridge. June 30, 1904. The petition of the Brown Store Company alleged the following: On June 25, 1902, it owned two (described) houses and lots in Donalsonville, in which it had a stock of merchandise, a dining-hall, and a barber-shop.

<p>Complaint. Before Judge Covington. City court of Moultrie. February 8, 1904.</p>

<p>Complaint. Before Judge Mitchell. Thomas superior court. June 10, 1904.</p> <p>H. E. Thompson, of St. Paul, Minn., owned a dwelling-house in Thomasville, Ga. In'the spring of 1900 his wife employed J. II. Brown to furnish material and do the work of repairing and decorating the inside of this house. His bill for work and material amounted to $655.51, on which he was paid $122.70 by William Miller. In 1902 Brown sued Thompson for the balance due on the account, alleging that Thompson “ has ratified the acts of -his said wife acting for him in the employment of petitioner, by receiving the benefits of petitioner’s employment by his said wife and agent and expressing his thorough satisfaction with the services and charges of this petitioner; and that he is therefore bound in good conscience and in law to carry out .in full the contract and agreement of his said wife and agent, and is therefore indebted to petitioner,” etc. Thompson denied liability. It appears from fche testimony that the work was'finished in December, 1900, and that Thompson and his wife occupied the house that winter and the three succeeding winters. This and other work on the premises was superintended by Miller, who had been employed by Mrs. Thompson to do this. She directed Brown to present his bill for the work to Miller for her, and Brown did so. Miller testified that he received from the defendant, “ for materials, repairing, and everything,” $3,150, of which $2,500 was received after the work was finished. This left owing over $700 including Brown’s account, which he was not instructed to pay. “ This work was done according to instructions, as far as I know. I heard no complaint. I paid Brown something over a hundred dollars for his work. I got the money from H. E. Thompson. . . I presented Mr.. Brown’s bills to Mrs. Thompson; never presented the bills to Mr. Thompson. The last time that I went to ask for a settlement I found Mr. and Mrs. Thompson in the same room together. When I asked for a settlement he said, ‘I have done paid too much money on that work already, and I don’t propose to pay any more.’ . . I was presenting Brown’s bill and all the other bills together.” The defendant testified, that he never knew of Brown’s employment, and. never authorized any one to contract with him or with any one else to do work on the house; and that he had no knowledge of any work having been done, except that Mrs. Thompson had made a contract with Miller to make repairs, the character of which he did not know; that the work was not necessary at the time to the comfort and protection of his.family; that neither the plaintiff nor any one for him ever presented a statement of the account sued on and demanded payment of defendant; and that he never paid any amount of money on the account. If his wife employed Brown, it was with his consent.</p> <p>The verdict was in favor of the plaintiff. The defendant moved for a new trial, which was denied, and he excepted.</p>

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

<p>1. A judge of the superior court may, in framing his decree on an auditor’s report, correct any error of law apparent on the face of the report, and make-his decree conform to the law. This is so although exceptions filed to the report of the auditor have been withdrawn.</p> <p>2. In the settlement of the estate of a decedent, debts due for rent take priority over liquidated demands.</p>

<p>1. The right of a railroad, company to contract for the location and maintenance of stations may be restricted by the fact that the public has an interest in the times and places for stoppage of trains to receive and discharge freight and passengers.</p> <p>2. There is no such restriction, on the company’s power to contract to build a spur-track from its main line to a sawmill or other private enterprise.</p> <p>8. The validity of such contract was recognized in. Bedgood v. Tifton Co., 116 Ga. 949, 951; and it was not error to overrule the demurrer.</p> <p>4. Instead of reducing an agreement to writing, the parties, by reference, may ■adopt the terms of-a contract already in writing.</p> <p>5. A party must be held bound by a ruling which he invoked, and by a judgment in his favor which he procured.</p> <p>6. If in a pending suit the plaintiff offers an amendment, and the defendant demurs thereto on the ground that “it sets up a new and distinct cause of action,” and such demurrer is sustained, the jüügmentt dismissing such suit will not bar the plaintiff from suing on the cause of action sefout in the amendment offered, but disallowed for the reason that it was a new and distinct cause of action.</p> <p>7. Such ruling on the demurrer further shows that the merits of the matter set out in the amendment were not, and could not have been, determined in the first suit.</p> <p>8. It was error to sustain the plea of res adjudicata.</p>

<p>Equitable petition. Before Judge Roberts. Dodge superior court. February 26, 1904.</p> <p>J. H. Allison brought an equitable petition to enjoin Wall from cutting timber, and to recover damages for timber already cut. Both the plaintiff and the defendant claimed under a common grantor. The defendant claimed to be in possession under a conveyance from the heirs of Archibald McMillan. The plaintiff was a subtransferee and successor in title from his father, J. R. Allison; and the question involved depended mainly upon the construction to be given to the instrument of March 12, 1891, from Archibald McMillan to John R. Allison, whereby, in consideration of $3,000, McMillan granted, sold, and conveyed to John R. Allison “ all the pine trees growing and being upon the certain tracts or parcels of land for sawmill and turpentine purposes.” The land consisted of all of nine lots of 490 acres each, a hundred acres of lot 161, and 390 acres of lot 162. “To have and to hold the aforedescribed pine trees for sawmill and turpentine purposes,” with the rights and appurtenances thereto; “also selling and conveying to said John R. Allison a right of way through and over said described lands for a tramroad, and the right to cut at any time any pine trees for cross-ties, bridge or trestle timbers to be used in building and maintaining said tram-road, and the right to cut at any time any pine trees for raft oars and binders; and the said Archibald McMillan . . the said bargained pine trees for sawmill and turpentine purposes, and right of way for a tramroad, unto said John R. Allison, his heirs and assigns, forever warrants and defends against the claims of all persons by virtue of these presents.” On April 16, 1891, Allison, in consideration of $5,969.00, sold to Buckley, his successors in trust, and assigns all the pine trees growing and being on the land above described, for sawmill purposes. Buckley conveyed his interest to Suydam; Suydam conveyed to Gray & Brother and Gray & Gatchell; and they conveyed to the Gray Lumber Company. Subsequently the Gray Lumber Company conveyed to J. H. Allison, the plaintiff, by deeds dated April 23, 1901, and June 12, 1901. Archibald McMillan died on June 22, 1901. Soon thereafter his heirs conveyed to Dickson & Dorminey certain of the timber involved, for sawmill and turpentine purposes, the same to be cut at pleasure within the period of ten years. The defendant Wall is in possession by virtue of license from Dickson & Dorminey. After the property came into the possession of the Gray Lumber Company, it permitted others to cut certain timber. Their operations ceased; and thereupon the Gray Lumber Company again entered and begun cutting some of the timber, but ceased operations. Under an arrangement with McMillan, J. R. Allison had been working the timber, and subsequently entered into the contract of 1891. Allison testified that he was in the turpentine business in Irwin county. This timber was used for turpentine purposes by Allison & Gasque. It ceased about three years before the trial. The plaintiff testified, that while he did not know how much timber J. R. Allison had in connection with a certain kind of business, it amounted to. a large body, and that he operated his still there continuously; “ do not know whát time he cut and used this particular timber.” He had two stills. Ten lots of land timbered like these lots would have been a pretty fair location for a small mill. It would have been about two years run for a small mill.</p> <p>There was evidence that timber was boxed during three years for turpentine purposes, and that thereafter the trees were proper to be used for sawmill purposes. There is no evidence as to the accessibility, situation, or size of J. R. Allison’s turpentine tracts or stills, or how large a body of land, if any, he controlled beyond that mentioned in McMillan’s lease. There was some evidence that McLeod & Oo. and Linder, by permission of Gray & Rro., cut trees off the property in dispute, paying an agreed price as “ stumpage,” and that they did not cut all of the trees suitable for sawmill purposes. There was evidence that the Gray Lumber •Go. owned large tracts of timber; and it was claimed that they did not abandon the timber on the McMillan- tract, but expected to cut it after sawing up the lumber on another tract across the Satilla river, on which their leases were about to expire. There was a conflict in the evidence as to whether the trees left by McLeod & Co.- and Linder were suitable for sawmill purposes under the conditions existing when the contract was made in 1891, it being claimed by the defendant that the timber was not suitable for such purposes; and that what was left was actually abandoned, and subsequently became available and profitable. There was evidence as to the entry on the land by Wall in 1901, and the number of cross-ties which he had cut from standing timber; and evidence that be had cut and removed logs lying on the ground at the time when he entered. Several witnesses testified that for the successful operation of a turpentine distillery it would be necessary -to acquire a title to a large tract. They varied in their estimates as to what would be necessary for this purpose, and as to the amount necessary to operate a sawmill.</p> <p>The plaintiff propounded to several witnesses, who were experienced in the turpentine and sawmill business, the following interrogatory: “ What, in your opinion, would be a reasonable time for a sawmill owner to cut and remove the timber from land in the lease to which no time is limited within which to cut and remove the timber? State the reasons for such an opinion as to time for such removal.” The witnesses varied as to what would be a reasonable time, some saying twelve and some ten years. In answer to a similar question other witnesses stated that ten or twelve, others six or seven, years would be a reasonable time within which to use timber for turpentine purposes where there was no time limit in the lease; that it is very expensive to move a turpentine distillery, moving the laborers and-building suitable houses to be occupied by them; that three or four years are occupied in the actual use of the timber, and it is impracticable to break up and move a turpentine distillery oftener than ten or twelve years, for the reasons stated. On objection by the defendant these questions and answers were excluded, and.a the court in its charge also^ instructed the jury that they were not to consider the opinion of any witness which may have been given in the testimony. To these rulings the plaintiff excepted. The» plaintiff also excepted to the following instructions to the jury : (a) “If you find any of the trees were cut by the defendant and that they were pine trees, and that they were growing and being upon these tracts of land, then that must have been their condition at the time of the execution of that lease; if they were not trees at that time, and growing and being upon this land, of course they would not pass by the terms of this lease.” (b) “I charge you to ascertain what mill timber is; and I charge you that under this lease the parties would have no right to exercise that right but once. Oue of the contentions of the defendant is, that the parties went upon this land and cut off all of the mill timber, and that afterwards there was an effort to go back on it after having been there one time. The contention of the plaintiff is, while they admit that they went'there to cut off some of the timber, yet they did not cut off all of it, that they did not abandon it, but intended to go back. If you find as a matter of fact that they did go there and cut off all the timber suitable for sawmill purposes, then they would not be permitted to go back; this right can only be exercised one time.” (o) “ If you find the dead timber lying on the ground there was converted into cross-ties, that would not come within the description there. of growing trees on the land, and the plaintiff would not be permitted to recover for that class of timber.”</p>

<p>Actions for damages. Before Judge Mitchell. Lowndes superior court. July 15, 1904.</p>

<p>Certiorari. Before Judge Russell. Muscogee superior court.. November 25, 1904.</p>

Action on bond. Before Judge Sheffield. Terrell superior court. May 27, 1904. Wall obtained a judgment against Huckaby. The execution was placed in the hands of Watson, special constable, who, it is alleged, was not familiar with the duties of the office. He levied' the fi. fa. on certain cotton, which was claimed by Hillsman.

Complaint on note. Before Judge Crisp. City court of Americus. , March 25, 1904. Lamar, Taylor & Riley Drug Company brought suit, in the city court of Americus, against J. R. Hudson on a promissory note for $1,630, dated December 20, 1902, due on demand, with provision for the payment of attorney’s fees, and waiving for himself and family any and all homestead or exemption rights he may have hy virtue of the constitution and laws of the State of Georgia or the United States.

Equitable petition. Before Judge Littlejohn. Dooly superior court. March 10, 1904. Henry Oliver in his will gave to his wife a life-estate in all •of his property, the language of the will descriptive of the. property being as follows: “ All my property, both personalty and realty.” To the heirs of his son I. 0.

<p>Action for breach of warranty. Before Judge Littlejohn. Sumter superior court!‘ August 13, 1904.</p>