Volume 122 — Georgia Reports

<p>Petition for injunction. Before Judge Littlejohn. Macon superior court. November 2, 1904</p> <p>On April 7, 1902, in consideration of the mutual benefits arising to each party it was agreed that the Mayor and Council of Montezuma would secure for the Atlantic and Birmingham Railroad Company a right of way from the line of Macon county to Flint river, including right of way to and through Cherry street in Montezuma, Ga., and would hold the railroad company harmless from any damages arising from the operation of said road through Cherry street which might be claimed by the owners of the property adjacent thereto by reason of the use of this street for this purpose having been allowed by the city council. The city also provided for the right of way for the location of a “ Y ” on lands outside of the city, the “Y” to be used for turning locomotives and trains; and donated a right of way 1,200 feet in length, running west of Dooly, street towards the Flint river. The railroad company on its part agreed to begin and prosecute to a finish the building of its road from Cordele to and through Montezuma. By its petition the railroad company alleged, that in pursuance of this contract it had constructed its line of railway through Cherry street to the aforesaid tract of land upon which it erected its depot, and has continued to maintain and operate its road to said point as its terminus; that, especially in the handling of freight-cars at said point where connection is made with the Central of Georgia Railway, it is necessary to switch and drill its trains upon Cherry street, and in shifting and transferring cars it is compelled to use the part of Cherry street between the east side of Spalding street and the old Rosser storehouse in Montezuma; that notwithstanding it has endeavored only to use Cherry street for these purposes in a reasonable manner, and so to limit the use as not to interfere with the interests of the defendant or of the public, and although no damage has resulted to the defendant or the public, the city council, on March 25, 1903, passed an ordinance prohibiting engines going through Cherry street at a greater rate than three miles an hour, and also requiring a flagman to go ahead of the train, “and no train or engine will be permitted to stop, drill, or in any manner shift or transfer cars between the east side of Spalding street and the old Rosser warehouse, except to prevent accident, under penalty of being punished as provided in sec. 13, of the charter;” that the city council has caused this ordinance to be enforced by arresting engineers and preventing switching, drilling, shifting, and transferring cars between the points designated, so as to seriously interfere with the plaintiff’s business as a common carrier, and it threatens so to enforce said ordinance as to prohibit the plaintiff from the use of that portion of Cherry street, to its irreparable damage and to the annulment of the rights and privileges granted,, by the contract. Whereupon it prayed for an injunction.</p> <p>The city demurred and answered, claiming that when the contract was made the plaintiff specially agreed that Cherry street should only be used by trains coming and going on schedule trips, and did not include any right to switch or to drill; that the City of Montezuma is built in a narrow space between Flint river and Beaver Creek; that while Cherry street is the busiest portion of the town, with many of the chief houses of the place on each side, it is the narrowest street in the city, and at the point indicated by the ordinance four different streets and three public ways converge into said street; that the plaintiff has shut up and practically excluded the public from all access to the town west of the Rosser store and so obstructed Cherry street as to make it impassable beyond that point; that during the time of switching and transferring cars, which is almost continuous, the travel and business of the town is absolutely paralyzed and stopped; that the noise of the engines is deafening; that it is unreasonable for the company to make a side-track and a switch-yard of Cherry street; and that the ordinance was passed and is being enforced in the discharge of the city’s duty to the public. There was evidence, pro and cod. On the return of the rule to show cause, after hearing affidavits, and argument on the demurrer, the court refused, in váeation, to pass upon several issues raised, holding that, irrespective of the verbal agreement, the municipal authorities had the authority to prohibit by ordinance the use of the street for the purposes complained of in the petition ; and thereupon refused the interlocutory injunction prayed for. To this order the plaintiff excepted.</p>

<p>Action for damages. Before Judge Spence. Decatur superior court. May jL6, 1904.</p>

Equitable petition. Before Judge Spence. Decatur superior court. May 10,-1904. The Flint River Lumber Company sued the Smith Lumber Company and George 0. Smith, to recover a described tract of land, for injunction, and damages for trespasses committed on the land. One of the links in the plaintiff’s chain of title was a deed from James U. Horne to Maston O’Neal, dated October 23, 1883, and recorded on December 7, 1883, in Book AA, p. 153, in Decatur county.

<p>Action of deceit. Before Judge Bower. City court of Bainbridge. June 28, 1904.</p>

<p>1. Where a petition can be construed either as a suit in contract or as an action for a breach of duty arising out of the contract, the latter construction will be adopted.</p> <p>2. The shipment by a common carrier of non-perishable merchandise from the point of destination to another point on the line of its railway, for the purpose of sale as unclaimed freight, within less than six months from the time such goods arrive at destination, is a conversion of the same in the county where the point of destination is located.</p> <p>3. In an action of tort against a common carrier for the conversion of goods consigned to the plaintiff, the carrier can not take advantage of his own wrong, nor lessen the measure o£ his liability, by invoking an agreed valuation which the plaintiff may have made for the purpose of reducing the freight rate or securing like collateral advantage. •</p> <p>4. In au action of the character above indicated, the expenses of the plaintiff’s agent, incurred while waiting for the delivery of the freight upon the statement of the agent of the carrier that the same had not arrived, when in fact it was then in his possession, is too remote to he the basis of a recovery against the carrier.</p> <p>5. The allegations of the petition were not sufficient to authorize the recovery of attorney’s fees.</p> <p>6. The evidence authorized a verdict for the actual value of the goods converted, and the judgment is affirmed upon condition that all other sums be written off.</p>

<p>Injunction. Before Judge Spence. Decatur superior court. October 17, 1904.</p> <p>Saddler sought to enjoin Swindell & Company from cutting timber on a tract of land alleged to be his property. He did not allege that the defendants were insolvent, or that the damages would be irreparable, but apparently relied upon the perfect paper title prescribed by the Civil Code, §4927, as the basis of an action to enjoin the cutting of timber. The abstract of title attached to his petition was, in so far as the purposes of this suit are concerned, defective, in that parol evidence was necessary to show that one of the grantors therein named was the heir at law pf his predecessor in title. See Powell v. Brinson, 120 Ga. 36, and cases cited on page 38. A temporary injunction was granted; aud the defendants filed a motion in the nature of a demurrer to the petition, praying that this injunction be dissolved. Two amendments to the petition were then allowed over the objection of the defendants. In one of these amendments it was alleged that the defendants do not claim title to the timber in dispute, “ except under and through a certain receipt, which plaintiff gave defendants, for the sum of ten dollars, which was part payment of a contract price of thirty dollars, which said defendants were to give plaintiff for certain .trees of a certain character” on the land involved m this suit; that the plaintiff did not read the paper so signed by him, for the reason that he could not read, but relied entirely upon the statement of the defendants’ agent, with whom the transaction was had, as to its contentsthat the agreement between the parties was that only the “ big yellow-hearted trees” were to be sold, the rail timber being expressly excepted from its operation; that the defendants went upon the land and proceeded to cut all the timber of every description, “in fact, more timber than the agreement called for;” and that the defendants are hopelessly insolvent and unable to respond in damages. In the other amendment it was alleged that the damage to the plaintiff would be irreparable. The defendants filed answers to the petition and to the amendments. They admitted that they claimed the timber under a contract with the plaintiff, but denied that that contract embraced only the timber of a certain character on the land. They also denied all the material portions of the petition and the amendments.' Attached to the answer as an exhibit was a copy of the contract in question, which was as follows: “Feby. 21st, 1899. State of Georgia, County of Decatur. Received of E. Swindell & Co. the sum of $10.00 dollars, the same being part of the purchase-money for the timber on lot of land No. 305, the east side, 110 acres timber in the 16th district of said county, and also for the right to construct and build upon the said lands, at any time, tramroads, railroads, and wagon-roads, and such other devices as they may see fit. The deed to the said timber and said privileges to be delivered as soon as the title to said land can be examined and perfected, and the balance of said purchase-money to be paid when the deed is so made and delivered by Moses Saddler to the said E. Swindell & Co., as follows: Balance $20.00 to be paid at the commencement of cutting timber. In the event no deed is made I agree to refund the said part of the purchase-money so paid by the said-on demand; it being understood and agreed that it is optional with the said E. Swindell & Co. to accept the said title to the said property and pay the purchase-money therefor.” This writing was signed by Saddler by his mark, and was attested by two witnesses, one a justice of the peace; and it was in evidence on the hearing, and its execution admitted by the plaintiff. The court granted an order enjoining the defendants, as prayed, until the final hearing. The defendants except to this order, the allowance of the amendments to the petition over their objection, and the refusal of the court to dissolve the injunction as prayed.</p>

Motion to set aside judgment. Before Judge Covington. City-court of Moultrie. February 10, 1904. On August 18, 1902, Averback obtained judgment against Davis, in the city court of Moultrie. In the following month he caused a summons of garnishment to issue against Spivey, calling upon him to answer at the next (November) term as to what money or effects he had in possession belonging to Davis.

<p>Action for breach of contract. Before Judge Covington. City court of Moultrie. February 27, 1904.</p>

Action for breach of contract. Before Judge Covington. City court of Moultrie. March 11, 1904.

<p>Appeal. Before Judge Mitchell. Berrien superior court. March 22, 1904.</p>

<p>Certiorari. Before Judge Mitchell. Berrien superior court. June 2, 1904.</p>

<p>1. An amendment offered to a petition but disallowed by the trial judge becomes no part of the record, and consequently can not be considered by this court unless set forth in the bill of exceptions or annexed thereto as an exhibit and duly authenticated.</p> <p>2. When a petition is demurred to on both general and special grounds and dismissed upon the former only, this court can. not, upon a bill of exceptions sued out by the plaintiff in which he assigns error upon the ruling adverse to him, undertake to pass upon the sufficiency of the special grounds of demurrer.</p> <p>3. The employment by the owner of a ginning plant of machinery which separates dust and sand from cotton and expels the particles of dust and sand into the air in large volumes, causing the same to be blown into the dwelling-house of an adjacent proprietor, to his great discomfort and injury, is an invasion of his property rights, for which an action for damages will lie.</p>

<p>Certiorari. Before Judge Mitchell. Lowndes superior court. May 27, 1904.</p>

<p>Equitable petition. Before Judge Reagan. Thomas superior court. June 20, 1904.</p> <p>In 1875 John L. Finn married Miss Susie Smith, and they lived together as man and wife until she died on July 25, 1894. At the time of her death she was seized and possessed of a separate estate, which in part consisted of certain lands acquired by inheritance from her father. She had for some time previously been in bad health, and for about six weeks prior to her death had been confined to her bed, but she was at the time of sound and disposing mind and memory. On the night of June 17, 1894, Mrs. Finn repeatedly, in the presence of Mrs. Oora S. Oassels, her sister, and another, expressed a desire to make a will, providing for the payment of certain small legacies, disposing of one half of the residue of her property to Mrs. Oassels and her children, and providing that her husband should have a life-estate in the other half, charged with the expense of educating one of the sons of Mrs. Oassels, with remainder over to this son. Mrs. Oassels, in order to quiet her sister and enable her to rest during the night, prevailed upon Mrs. Finn to'postpone the making of a will until the following morning, when she could send for some one to come and see her and prepare the necessary papers. The next morning, Mrs. Finn sent for her husband and told him what disposition she wished to make of her property; and upon his assurance that he would carry out her wishes .in the matter, she abandoned her intention of making a will. During the period of her'illness he frequently requested Mrs. Oassels not to encourage his wife to make a will, saying he would treat Mrs. Oassels right touching the distribution of his wife’s estate. Upon his wife’s death, he as her sole heir at law took possession of her estate. In 1896, Finn intermarried with Mrs. Lillian E. Winn, and in January, 1898, died leaving her as his sole heir at law. He died without carrying out, save in minor particulars, the wishes of his former wife respecting the division to be made of her separate estate. After the death of Finn, his second wife, Mrs. Lillian E. Finn, took possession of and assumed control over all of the property of which he died seized, including much of the property inherited from his former wife. The present action was brought against Mrs. Lillian E. Finn by Mrs. Cassels and her children, to compel an accounting and to recover of the defendant all of the property in her possession which had formed a part of the separate estate of Mrs. Susie S. Finn at the time of her death. ’ The theory on which the petition was framed was, that inasmuch as Finn’s former wife had been induced by his fraudulent conduct to abandon her intention of executing a will, and as he had thus been enabled to acquire her estate by inheritance, the property belonging thereto became impressed with an implied or constructive trust in favor of the plaintiffs, and that Finn held the same merely in the capacity of a trustee for them. Upon a demurrer to the petition, interposed by the defendant, the court below held that no cause of action was set forth in the petition, and the action was accordingly dismissed. To this ruling the plaintiffs except.</p>

<p>Complaint. Before Judge Griffin. City court of Moultrie. August 5, 1904.</p>

<p>Where a petition was filed and process issued against A, and the return of the sheriff shows that he served “the defendant;” and where, in entire conformity to the pleadings, judgment by default was entered against A, such judgment can not, on the ground that its rendition against A was the result of a clerical error, be so amended as to make it a .valid judgment against B, there being apparent on the face of the record no evidence of any clerical error or inadvertence. This is so though B admits that he was the party who owed the debt sued for and should have been made the defendant in the suit, and informally consents that the judgment be so amended as to apply against him.</p>

<p>Before equity will decree specific performance of a contract for tlie sale of land, there must he an absolute and unconditional tender of the purchase-price. An offer to pay the purchase-price on delivery of a properly executed deed is not an unconditional tender.</p>

<p>Complaint. Before Judge Roberts. Dodge superior court. June 21, 1904.</p>

<p>Appeal. Before Judge Reagan. Dodge superior court. January 23, 1904.</p>

<p>Action for damages. , Before Judge Russell. Gwinnett superior court. January 18, 1904.</p>

<p>Equitable petition. Before Judge Henry. Clarke superior court. April 15, 1904.</p>

<p>1. In the absence of a stipulation to the contrary, one who obligates himself by written contract to bore an artesian well for another is at liberty to fulfil his engagement through workman over whom he places a superintendent to direct how the work shall be done, and is under no obligation to himself perform any of the labor or to give his personal attention to the work.</p> <p>2. Where the contractor signs the contract in his own name as an individual, he may properly bring suit-thereon against the other party to compel payment for the work done, notwithstanding the contractor may have been in partnership with a third person who superintended the boring of the well," and who, under a .private understanding between them, was to share in the profits realized from the undertaking.</p> <p>3. Though the boring of the well was continued after water had been reached, the party for whom it was being drilled can not complain that work was , not then stopped at his request and the water tested, when he deferred to the opinion of the superintendent that the supply was insufficient, and permitted him, without further objection, to carry on the work ; and this is true notwithstanding a sufficient supply of water was subsequently obtained at the same depth by boring another well at a point but a short distance away.</p> <p>4. When error is assigned on the refusal of a trial court to allow a witness to be interrogated touching a given subject, it is incumbent on the excepting party to disclose what facts he sought to elicit from the witness, in order that it may appear whether the testimony rejected was relevant to the issue and would have been beneficial to the party offering the same.</p> <p>5. When a jury fails to reach a verdict because one of the jurors is wedded ■ to his own opinion concerning the law of the case and refuses to apply to the facts thereof the law as given in charge by the court, it is proper for the trial judge, on being advised as to why the jury are unable to agree, to instruct the jury that they are bound by their oaths as jurors to take the law from the court and from no other source. Tor no reason assigned by the plaintiff in error did the court err in the instructions given to the jury upon this subject.</p> <p>6. The evidence warranted the finding in favor of the prevailing party.</p>

Complaint. Before Judge Humphreys. City court of Moultrie. June 8, 1904.

<p>A, the payee o£ a non-negotiable promissory note, sued B and C, who resided in different counties, in the county of the residence of B. The petition alleged that B was maker and C indorser. On the back of the note the name of 0 was signed in blank. A demurrer was filed, averring that C was not an indorser but a guarantor, and could not be sued on the note in the county of B’s residence. Held, that under the allegations of the petition C was an indorser and suable in the same action with B in the county of the latter’s residence, but that the averment in the petition would not preclude C from pleading and proving that, according to the intention and agreement of the parties, his relation to the paper was not that of indorser.</p>

<p>Application for partition. Before Judge Mitchell. Lowndes superior court. May 20, 1904.</p> <p>On May, 18, 1903,,W. F. Arnold, F. M. Parrish, and Barney Arnold filed a petition for partition against W. J. Limeburger. The property described was two lots of land. It was alleged that W. F. Arnold was the owner of a 7/8 of 1/4 undivided interest, F. M. Parrish the owner of a 1/4 undivided interest, and Barney Arnold the owner of a 1/8 of 1/4 undivided interest, and that the defendant was the owner of the remaining 1/2 undivided interest. Notice of intention to apply for partition had been served on the 25th day of April. The defendant filed an answer, in which he denied that the plaintiffs had any interest in the land, and alleged that he was the sole owner of the same. The answer did not set forth upon what this claim of sole ownership was based ; but there was no demurrer. At the trial the undisputed facts were as follows : Joshua Limeburger died in possession of the land in controversy, May 13, 1848. He left surviving him a widow, Salomy Limeburger, and seven children, to wit: Washington, the defendant, Woodbury, Louvinia, Seletie, Marion, Jasper, and Newton. The land was assigned to the widow, about 1850, as dower, the record not disclosing the exact date. Louvinia married Arnold in 1849, but it does not appear distinctly whether the marriage took place before or after dower was assigned. Seletie married Parrish in 1857. At the date of these marriages these two daughters were living with their mother on the land in controversy. Mrs. Arnold, after her marriage, moved away from the place in 1850 or 1851, and never afterwards lived on the land. Mrs. Parrish moved away from the place in 1858, but returned and lived with her mother from 1862 to 1865; her husband, after his return from the army, living on the place with her during the latter part of the year last mentioned. Jasper, Newton, and Marion died during the-' Civil War in 1862, 1863, and 1864, respectively, without issue. On April 1, 1871, C. W. Arnold, the husband of- Louvinia, and Wiley Parrish, the husband of Seletie, Woodbury Limeburger, and Salomy, widow of Joshua Limeburger, joined in a deed conveying the land in fee simple to W. J. Limeburger, the defendant, for an expressed consideration of $1,800. At the time this deed was executed the defendant was living upon the land with his mother, the tenant in dower, and he has continuously lived upon the land from that date until • the present time. Mrs. Arnold and Mrs. Parrish were not parties to this deed, but it appears that they knew of the execution of the deed either at the time or shortly thereafter. The widow of Joshua Limeburger died on December 31, 1886. Mrs. Arnold died September 1, 1888, and Mrs. Parrish is still living Arnold is dead, but the record does not disclose the date of his death. The case was presented upon the theory that he died before his wife. Mrs. Arnold left surviving her eight children, and seven are still in life, the plaintiffs W. F. and Barney Arnold being among the number. Barney Arnold claims a 1/8 interest in the property as an heir of his mother. W. F. Arnold claims a 7/8 interest, 1/8 as an heir of his mother, 5/8 under conveyances from other children, and 1/8 under a conveyance from James M. Dees and others, who are the children of a deceased daughter of Mrs. Arnold. It appears that Mrs. Dees was the oldest child, but it does not appear when she was born or when she died. One of the Dees children is about 22 years old, another about 24, and the third about 26, one witness stating that each of the three children has been 21 some time. F. M. Parrish claims under a deed from Mrs. Parrish. The deeds under which W. F. Arnold and F. M. Parrish claim were all executed in 1903. The court directed a verdict for the defendant, and the plaintiffs excepted.</p>

<p>1. An issue made by'the filing of a counter-affidavit to a summary proceeding to eject a,tenant, under the Civil Code, §4813 et seq., is tenancy or no tenancy, and the question of the plaintiff’s title is not involved.</p> <p>2. ‘While an equitable amendment might be allowed in such a proceeding, it must relate to matters which are germane to this issue.</p> <p>3. It follows that a counter-affidavit setting up that the deed under which the „ plaintiff claims to derive title from the defendant is void, and praying for a cancellation of the same, is not allowable.</p> <p>4. Agency can not be established by the declarations of the alleged agent.</p> <p>6. The evidence not being sufficient to establish the relation of landlord and tenant between the plaintiff and the defendant, it was error to refuse a new trial.</p>

<p>Action for damages. Before Judge Mitchell. Brooks superior court. May 3, 1904.</p>

<p>Action for damages. Before Judge Gober. Pickens superior court. January 8, 1904.</p> <p>Ruth Gardner, aged seventeen years, by her next friend Hiram L. Gardner, brought suit, in Pickens county, against the Atlanta, Knoxville & Northern Railway Company, for $15,000 as damages resulting from physical injuries alleged to have been sustained by her in consequence of the negligence of the defendant company. The petition alleged, that she “ was' driving a buggy,” and “ her route involved crossing over the defendant’s railroad track upon a public crossing known as Whitfield’s crossing in” Pickens county; that she “ drove said buggy, in the exercise of due care, towards said crossing, and just as she was crossing over the defendant’s tracks, and just as she had cleared the tracks, a freight-train of the defendant dashed upon the crossing*negligently and recklessly frightening the horse, and causing him to plunge back, and so close was the train to the vehicle that some portion of the train near the front end of it oaugbt the buggy and horse, tore the buggy to pieces, killed the horse, and threw [her] to the ground, and greatly and permanently injured her.” The petition further alleged, that “ defendant negligently failed to blow the whistle upon approaching said crossing for a distance of 400 yards, and negligently failed to check and keep checking upon approaching said crossing, so as to be able to stop in time should any person or thing be upon the crossing, and defendant negligently failed to whistle at all or to check at all, and negligently failed to keep a lookout ahead, and was negligently running said train at a speed of about 40 miles per hour, and negligently failed to exer-. cise any sort of care in approaching said crossing.” The 6th paragraph of the petition was as follows: “ And for further cause of action, and by way of an additional count, plaintiff says that on the 27th day of May, 1902, at Whitfield’s crossing in said county, she was injured by the running of the cars, locomotives, and other machinery of the defendant company, and the defendant failed to exercise all ordinary and reasonable care and diligence.” The -seventh paragraph set forth the extent and character of her physical injuries, her pain and suffering consequent thereon; that she “ was a minor and an orphan, and was studying to perfect herself in the art of music, and said injuries have so disabled her that she has been unable to' pursue her studies at all, and has, further, been unable to perform any kind of labor or service, either domestic’ or of any other character;” that “ she was able to and did perform divers domestic services about the house, in the way of housekeeping and the like;” that “she-was also able to sew, and assisted in sewing, and would shortly have so perfected herself in music as to be able to teach;” that “her services were of the value of $15 to $20 per month, and these have been destroyed for all the future; ” that “ her capacity to labor and earn money is totally destroyed;!’ that “doctor’s and medical bills are $250;” and that “for each and all of the foregoing items of damage plaintiff sues.” The defendant demurred, both generally and specially, to the plaintiff’s petition. The court overruled the demurrers, to which ruling the defendant filed exceptions pendente lite. After demurring, the defendant answered the petition, admitting that it was a corporation and that the occurrence complained of happened in Pickens county, but denying all the other material allegations of the petition. Upon the trial the jury reudered a verdict in favor of the plaintiff for the sum of five thousand dollars. There was a motion for a new trial, which was overruled, and the defendant excepted, assigning error upon the exceptions pendente lite and upon the overruling of the motion for a new trial.</p>

<p>Action on bond. Before Judge Lewis. Greene superior court. March 15, 1904.</p>

Exceptions to auditor’s report. Before Judge Lewis. Morgan superior court. September 17, 1903.

<p>Accusation of entering with intent to steal. Before Judge Longley. City court of LaGrange.' December 21,1904.</p>

<p>1. On tha trial of one accused of robbery it is not error for the judge to read, in Ms charge to the jury, the definition of robbery as given in the Code of 1895, and to omit the amendment added thereto by the act of 1903, such act adding the words, “sudden snatching, taking, or carrying away any money, goods, or chattels or anything of value from the owner or person in possession or control thereof, without the consent of the owner or person in possession or control thereof ; ” the accused not being indicted for “snatching,” etc., but for robbery by force.</p> <p>2. Where the State’s evidence shows that one of the articles taken by the accused from the prosecutor was a watch, and further that the accused -and a certain woman were very intimate, it is not error to admit evidence showing the watch to have been in possession of the woman the morning after .the robbery. Such evidence tends to corroborate the testimony of the prosecutor that the watch was taken from his possession the night before by the accused.</p>

Indictment for burglary. Before Judge Eelton. Bibb superior court. December 22, 1904. , On the trial of Henry Scott, under an indictment charging him with having burglarized the dwelling of J. W. Cannon, the evidence submitted by the State was substantially as follows: Cannon and his family were away from home most of the day on May 6, 1904. They had no servants, left no one in the house, and left all the doors of the house locked and the windows down or closed.

<p>Even if the evidence was sufficient to show, beyond a reasonable doubt, that the accused sold intoxicating liquor, the charge that the courts will take judicial cognizance that fermented wine is intoxicating was, under the facts of the case, so misleading as to require the grant of a new trial.</p>

Indictment for carrying concealed weapon. Before Judge Hodges. City court of Hartwell. December 6, 1904. Andy Sanders was convicted of. carrying a concealed weapon.

<p>Indictment for firing woods. Before Judge Holden. Taliaferro superior court. January 7, 1905.</p>

<p>Indictment for bigamy. Before Judge Littlejohn. Sumter superior court. December 31, 1904.</p>

<p>Conviction of manslaughter. Before Judge Reagan. Pike superior court. December 19, 1904.</p>

<p>The grant by the ordinary of- 'Fulton county, under the Political Code, § 1649, .of a free license to peddle, to an indigent and crippled person, does not relieve such person from the necessity of obtaining a city license from the municipal authorities of the City of Atlanta, that city having by its charter express authority to require a license from peddlers, and having exercised its power by imposing such a license tax, and it not appearing that the person olaiming exemption from license was a Confederate veteran, or a veteran of any other war.</p>

<p>Certiorari. Before Judge Mitchell. Thomas superior court. January 13, 1905.</p>

<p>Indictment for murder. Before Judge Eoberts. Irwin superior court. December 31, 1904.</p>

Indictment for kidnapping. Before Judge Spence. Decatur superior court. January 5, 3 905. O. N. Sutton was indicted in the superior court of Decatur county for the offense of lddnapping.

<p>Certiorari. Before Judge Mitchell. Colquitt superior court. January 12, 1905.</p>

<p>1. “A prima facie case is all that is necessary to carry dying declarations to the jury.” Whether or not the person making them was conscious at the time, and'realized that death was impending, are issues of fact.</p> <p>2. A new trial will not be granted on the ground that illegal evidence was admitted, when it does not clearly appear from the motion that such evidence . was in fact admitted.</p> <p>S. Under the circumstances of this case, it was not error to charge that the jury might inquire whether or not the accused had an opportunity to kill the deceased.</p> <p>4. The alleged newly discovered evidence was merely impeaching in character, and was therefore not ground for a new trial. The verdict was supported by the evidence, and was not contrary to law.</p>

<p>1. Where guilty knowledge is the gist of the offense, anything going to show the existence of such knowledge is admissible regardless of the date when the same was acquired.</p> <p>2. In a prosecution for renting a room to be used for gaming purposes, it was competent to prove, that more than two years before the finding of the indictment the tenant was well known as a gambler, and that the apartment had a reputation as a gaming-house.</p> <p>8. Considering the occupation of the tenant, the long-established reputation of the room, the means of access thereto through the defendant’s bar, and the other circumstances proved on the trial, the verdict was demanded. None of the assignments of error were as to matters which vitiated the trial, or could have changed the result.</p>

<p>Indictment for seduction. Before Judge Bartlett. Polk superior court. January 9, 1905.</p>

<p>1. In the trial of a criminal case, if the jury, after having been charged by the court and retired to their room, disagree as to the testimony of certain witnesses, it is not error for the court, at the request of the jury and in the presence of the accused and his counsel, to require the official stenographer to read the testimony of the witnesses which is in dispute and which was taken down by him while the witnesses were on the stand.</p> <p>2. A ground of a motion for a new trial that is not approved by the trial judge will not be considered by this court.</p> <p>3. An assignment of error that “the- court erred in giving in charge to the jury, as shown by the general charge of the court, which is of file and made a part of the record in this case, to which reference is prayed, the rules of law governing the rights of parties when engaged in mutual combat,” is too general, vague, and indefinite to be considered. The charge excepted to should have been set out in the motion and specific error assigned thereon.</p>

<p>As the statement of the accused, made in the trial, demanded the verdict, a new trial was properly refused, even though the charge of the court may not have been entirely accurate.</p>

<p>Accusation of escape. Before Judge Willis. City court of Columbus. January 16, 1905.</p>

<p>Indictment for fornication — certiorari. Before Judge Lewis. Jasper superior court. January 19, 1905.</p>

<p>Conviction of manslaughter. Before Judge Reagan. Pike superior court. January 5, 1905.</p>

<p>Indictment for fornication and adultery. Before Judge Griffin. City court of Yaldosta. January 14, 1905.</p>

<p>1. Where the evidence for the State showed that the homicide was committed by the accused without provocation or extenuating circumstances, it was not material error to charge that if the jury believed, beyond a reasonable doubt, that the accused did the killing, then the law presumed it was done with malice, and the burden would be on the accused to show that it was not murder.</p> <p>2. The court properly charged that the jury should take the law from the court and not from counsel.</p> <p>3. There was no error in the instruction as to the contentions of the State.</p> <p>4. Under the evidence, the law of involuntary manslaughter was not involved in the case, and the court properly refused to charge on that subject.</p> <p>5. The verdict was warranted, if not demanded, by the evidence, and the re" fusal of a new trial was not erroneous.</p>

<p>Indictment for vending drugs and poisons without license. Before Judge Griffin. City court of Yaldosta. January 16, 1905.</p>

<p>The writ of certiorari can not he used to bring in question the legal existence of the court to which the writ is directed.</p>

Levy and claim. Before Judge Seabrook. Appling superior court. January 9, 1904. On April 5, 1899, Joseph Williams obtained judgment against 1.1. Moody and George. Moody. The execution was levied on an undivided two-sevenths interest in 125 acres of lot No. 8, and a like interest in lot No. 2, iu the 2d district of Appling county. The J. P. Williams Company, purchasers under a mortgage from I. I. Moody and Robert Moody, dated January 20, 1897, filed a claim.

<p>Petition for specific performance. Before Judge Evans. Coffee superior court. January 16, 1904.</p>

<p>Complaint for land. Before Judge Evans. Coffee superior court. March 17, 1904.</p>

<p>1. In a devise to A for life, with remainder to his children as a class, a grandchild of A, whose parent died before the death of the testator, can not share in the remainder with the only child of the life-tenant who was in esse when the title to the remainder vested at the testator’s death and at the time of the vesting of such éstate in possession at the life-tenant’s death.</p> <p>2. A plain, written legal will can not he reformed by making additions to it.</p>

<p>Citation to settlement. Before Judge Reagan. Pike superior court. April 12, 1904.</p>

<p>Taxation of costs. Before Judge Gale. City court of Brunswick. June 25, 1904.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. May 14, 1904.</p> <p>Paolo Pavesich brought an action against the New England Mutual Life Insurance Company, a non-resident corporation, Thomas B. Lumpkin, its general agent, and J. Q. Adams, a photographer, both residing in the city of Atlanta. The allegations of the petition were, in substance, as follows: In an issue of the Atlanta Constitution, a newspaper published in the city of Atlanta, there appeared a likeness of the plaintiff, which would be easily recognized by his friends and acquaintances, placed by the side of the likeness of an ill-dressed and sickly looking person. Above the likeness of the plaintiff were the words, “Do it now. The man who did.” Above the likeness of the other person were the words, “ Do it while you can. The man who didn’t.” Below the two pictures were the words, “ These two pictures tell their own story.” Under the plaintiff’s picture the following appeared: “ In my healthy and productive period of life I bought insurance in the New England Mutual Life Insurance Co., of Boston, Mass., and to-'Jay my family is protected and I am drawing an annual dividend on my paid-up policies.” Under the other person’s picture was a statement to the effect that he had not taken insurance, and now realized his mistake. The statements were signed, “ Thomas B. Lumpkin, General Agent.” The picture of the plaintiff was taken from a negative '.obtained joy the defendant Lurryj^ kin, or some one by him authorized, from the defendant Adams, which was used with his consent and with knowledge of the purpose for which it was to be used. The picture was made from the negative without the plaintiff’s consent, at the instance of the defendant insurance company, through its agent Lumpkin. Plaintiff is an artist by profession, and the publication is peculiarly offensive to him. The statement attributed to' plaintiff in the publication is false and malicious. He never made any such statement, and has not and never has had a policy of life-insurance with the defendant company. The publication is malicious and tends to bring plaintiff into ridicule before the world, and especially with his friends and acquaintances who know that he has no policy in the defendant company. The publication is “a trespass upon plaintiff’s right of privacy, and was caused by ■ brcfiii».of confidence and trust reposed ” in the defendant Adams. The prayer was for damages in the sum of $25,000. The petition was demurred to generally,] and specially on the grounds that there was a misjoinder of defendants and causes of action; that no facts were set forth from which malice can be inferred; and that no special damages were alleged. , The court sustained the general demurrer, and the plaintiff excepted.</p>

<p>1. A petition to intervene in a creditors ’ bill and become a party plaintiff thereto may be filed without the previous order of the judge ; and when so filed, it becomes a part of the pleadings in the case to which it relates. Such pleadings are a part of the record, and, in a bill of exceptions assigning error on the refusal to allow the prayer for intervention, may me specified as a part of the record. \</p> <p>2. The main suit was neither good as a creditors’ bill nor as a proceeding against an insolvent trader; and as the plaintiff in the main suit had transferred all his interest to a third person before the filing of the petitions for intervention, it was not error to sustain a motion, made at the instance of counsel for defendant and the transferee, to dismiss the main petition and disallow the intervention.</p>

<p>In an equitable petition by a judgment creditor against a debtor and a lien creditor of this debtor, to subject encumbered property to the payment of a judgment held by the plaintiff, the debtor isa necessary party. Any relief prayed against the defendant creditor, who is a non-resident, incidental to the main purpose of the suit, i. e. the subjection of the property of the defendant debtor to the plaintiff’s judgment, will not serve to malte a separable controversy between the plaintiff and the non-resident creditor defendant. Such a proceeding is not removable from a State court to the circuit court of the United States on the ground of diverse citizenship.</p>

Petition for injunction. Before Judge Hammond. Burke superior court. November 12, 1904. The act approved December 15, 1893, provided, that the mayor and six aldermen should constitute a body corporate under the name of the Mayor and Council of Waynesboro, and by that name should be capable of suing and being sued.

Complaint. Before Judge Russell. Gwinnett superior court-June 4, 1904. Moore, Marsh & Company brought suit against Medlock, in the city court of Gwinnett county, on three promissory notes which he had made to them.

<p>Complaint for land. Before Judge Freeman. Carroll superior court. June 16, 1904.</p> <p>P. P. McBrayer, administrator of A. E. McBrayer, brought an action against J. L. Walker, Willard Walker, and Dave Griffin, for the recovery of lot 282 in the 6th district of Carroll county, alleging, that all the defendants were in possession; that J. L. Walker, on January 24,1873, conveyed the land to A. E. McBrayer; that the latter permitted Walker and the other defendants to remain in possession; that Willard Walker and Dave Griffin were in possession under J. L. Walker. The defendants denied the allegations in the petition, except the fact that they were in possession of the land. They admitted that J. L. Walker had made an instrument in reference to the land, but they claimed that it was a mortgage and did not convey title, or, if it attempted to convey title, it was void as such, because mad'e to secure a usurious debt. On the trial the plaintiff offered a deed dated January 24, 1877, from J. L. Walker to A. E. McBrayer, purporting to convey the land in consideration of $998. It was signed by J. L. Walker, in the presence of Wilson Furr and C. W. Furr. Both the witnesses made an affidavit to probate the deed so as to admit it to record. That by C. W. Furr was dated March 4, 1874. The affidavit by Wilson Furr was made February 19,1874. The deed was recorded in Book “N,” folio 275, March 5,1874. Just below the entry of record of the deed in the clerk’s office was the following:</p> <p>The condition of the within deed is such that whereas the said J. L. Walker has this day given A. E. McBrayer his promissory note for $988: if the said J. L. Walker shall well and truly pay the said $988 with 20^> interest, then this deed .to be null and void; otherwise to remain of full force and virtue.</p> <p>Wilson'Furr. J. L. Walker.</p> <p>Both of the probating affidavits were in the usual form, and both were recorded after tire instrument last recited. It appeared that A. E. McBrayer, had been dead ten or fifteen years; that his heirs had divided the estate without administration : and that on December 1, 1902, letters of administration were issued to the plaintiff. The defendants relied on the entry on the back of the deed, which was the same as that copied above, except it was signed A. E. McBrayer, and not J. L. Walker,' as appeared on the record in the clerk’s office. Over the objection of the plaintiff, the defendants offered the record of the suit by A. E. McBrayer v. J. L. Walker, brought on a paper of which the following is a copy: “DueA. E. McBrayer or bearer the sum of $988.00, for value received, to run at 20¡o. This the 24th day of January, 1873. J. L. Walker.” This record showed that on October 6, 1874, judgment was rendered for the plaintiff against the defendant for $988 principal, and $334.81 interest. The plaintiff objected to this evidence, on the ground that this was a suit on a due-bill, and there was nothing to connect that debt with the one referred to on the back of the deed, which was there called a promissory note. The plaintiff also objected to the introduction of the writing on the back of the deed, for the reason that its execution was not proved, nor did it appear when it was made; that it may have been entered after the execution of the deed, and if so, a subsequent agreement to pay usury would not void a valid deed previously made. There was evidence that A. E. McBrayer was very old and infirm, and wrote with difficulty. Some of the witnesses were unable to say whether the signature to the writing on the back of the deed was genuine or not. Others stated positively that it was not his signature. There was evidence that Wilson Eurr was dead, and that the signature beneath the writing on the back of the deed was his genuine signature; hut the plaintiff contended that this did not amount to proof of the execution of the instrument, as there was no recital that Eurr was a witness. There was evidence from the attorney who represented A. E. McBrayer in the suit against J. L. Walker, that A. E. McBrayer had told him that the note or due-bill ¡for $988, sued to judgment, was for the purchase-money of the land sued for; that Walker borrowed the money from Wilson Eurr, and that “ McBrayer traded Eurr the place for the note, which was afterwards renewed to McBrayer.” Plaintiff objected to this evidence, because it further appeared that the information was communicated by McBrayer to the witness who was then his attorney. The court instructed the jury that if the writing on the back of the deed was signed by A. E. McBrayer, or if he ratified and approved the same, the plaintiff could not recover. The jury found a verdict for the defendants. ' The plaintiff made a motion for a new trial, which was overruled, and he excepted.</p>

<p>1. Any portion of a record contained in a transcript transmitted to this court, which is material to a clear understanding of the errors complained of, will be considered by the court, even though the specification in the bill of exceptions may not be sufficiently -broad to have required the clerk to transmit such part of the record.</p> <p>2. An entry upon an amendment to a motion for a new trial, that the amendment is allowed “ and the grounds therein set out approved,” is a sufficient approval of the grounds of the motion.</p> <p>3. An amendment to a motion for a new trial may be allowed at any time be fore the motion is finally disposed of.</p> <p>4. An entry in the following words at the conclusion of a brief of evidence: “Approved June 28, 04,” and signed by the presiding judge, is a sufficient approval of the brief.</p> <p>5. When an order contained in the record, continuing the hearing of a motion for a new trial, appears without date, but there is a recital in the bill of exceptions which shows the date on which such order was passed, such recital will be treated as showing the true date of the order, in the absence of a suggestion that the order in the record is incomplete, and that if completed from the record in the court below a different date would appear.</p> <p>6. The petition was not subject to the objections raised in the demurrer; the evidence for the plaintiff established the material allegations of the petition ; and there was no error in overruling the demurrer and motion for a nonsuit.</p> <p>7. The trial judge has no power to order that, as a condition to the refusal of a new trial, a portion of the verdict shall be written off as excessive, except where from the application of the law to the evidence the excess can be accurately ascertained.</p>

<p>Petition for certiorari. Before Judge Parker. Clinch superior court. February 6,-190.5.</p>

<p>1. A ground of a motion for a new trial complaining of the admission of written evidence will not he considered, unless the evidence objected to is set forth, either literally or in substance, in the motion itself, or attached thereto as an exhibit.</p> <p>'2. When a deed describes the land as bounded on one side by the land of a third person, the true boundary line between the land conveyed and the land of such person must be taken as the boundary line, and not a conventional line agreed upon in parol by the parties at the time the deed was executed, if there he a variance between such two lines.</p> <p>•3. If a plaintiff in an action to recover land, claiming title under an administrator’s deed, fails to show an order of the court of ordinary granting leave to the administrator to sell the land in question, he can not recover. To carry the title out of the heirs at law of the intestate, it must appear that the order to sell and the administrator’s deed refer to the same land.</p>

<p>1. Grounds of a motion for a new trial complaining of the rejection or admission of evidence, which do not set forth the evidence either literally or in substance, but refer to portions of the record other than the motion for a new trial for such evidence, or which do not set forth the evidence in such a manner that the assignment of error can be intelligently dealt with, can not be considered.</p> <p>2. Under the evidence in the record, there could be no recovery in favor of the plaintiffs, and there was no error in overruling the motion for a new trial.</p>

<p>1. Even though twelve months use will not give a perfect prescriptive title to a private way, the owner of the land through which the road runs can not obstruct the same without first giving the common users thirty days written notice of his intention so to do.</p> <p>2. Those who use a private way must keep the same in repair, and can not take advantage of their own default by turning out to avoid obstructions which’ they should have removed.</p> <p>3. Where a private way of the general width of fifteen feet, but with a few wider places, is laid out by the owner of the land, and the same is used for the statutory period, the existence of the wider places will not defeat the rights of the users of the way.</p> <p>4. The duty to repair continues ; but where prescription to a private way has ripened, title is divested by abandonment, though not by neglect.</p> <p>5. There was no demurrer that the petition failed to allege that the land was improved; and the evidence showed that the way was not only laid out by the owner, but that in some portions it ran through “fields.”</p> <p>6. The description of the road would not have been sufficient had this been a proceeding to lay out and establish, but it was sufficient to identify an existing way across which an obstruction had been placed.</p> <p>7. In view of the failure to give the notice of an intention to obstruct, and considering the conflict in the evidence, the court did not err in refusing to sustain the certiorari to the judgment of the ordinary requiring the obstructions to be removed.</p>

<p>Habeas corpus. Before Judge Carter. 'City court of Baxley. June 30, 1904.</p>

<p>Equitable petition. Before Judge Parker. Glynn superior court. July 14, 1904.</p>

<p>Attachment. Before Judge Parker. Glynn superior court. August 9, 1904.</p>

<p>Action for damages. Before Judge Griffin. City court of Douglas. July 18, 1904.</p>

<p>Action for breach of contract. Before Judge Lumpkin. Pulton superior court. January 22,1904.</p> <p>cited Civil Code, §3646; Ga. B. 86/558; 91/404; 111/146; 115/408; 118/424; 112/199.</p> <p>cited, on statute of frauds: Civil Code, §2694 ; Ga. B. 66/338-42 ; 73/400-405 ; 100/645-50 (2) ; 112/359-61; 118/541; Clark, Con. 119 ; I Beach, Con. § 569 ; 8 A. & E. Ene. L. (1st ed.) 729, 746. Attempt to sell non-existing thing, nugatory: Ga. B. 55/586; 61/270; 65/644-6; 112/199; 48 Conn. 250; 143 U. S. 346 ; II Pet. 72; 24 A. & E. Ene. L. 1042 — 6. Attempt to confirm such a transaction, nugatory : 127 Mass. 547. Offer not accepted : Ga B. 81/704; 88/743-8; 95/518; 97/465; 114/209,222; 117/86-94, 23 N. J. Eq. 512; 26 Am. St. R. 676; 1 Beach, Oon. 67, §§51 — 4; 24 A. & E. Ene. L. 1032. Acceptance after lapse, futile: 116 Ga. 108 — 13; Clark, Con. 53; 1 Beach, Con. §54; 119 U. S. 149.</p>

<p>Distress warrant. Before Judge Parker. Glynn superior court. August 9, 1904.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. January 30, 1904.</p> <p>The petition was by Agnes Havard against Amanda A. Clark, Thomas A. Clark, Annie 0. Clark, and the Security Investment Company. The allegations were, in substance, as follows: Thomas A. Clark owned a tract of land in Fulton county, and conveyed a part of it to his wife, Amanda. Afterwards she executed to the Security Investment Company a deed to the entire tract, as security for the payment of a note made by her to the company. The company transferred the note, before maturity, to the plaintiff, but retained title to the land. The consideration of the note was a loan negotiated through Samuel Barnett, a loan broker, on the application of Thomas Clark, who was acting for his wife. At the time of employing Barnett to negotiate the loan, Thomas Clark promised Barnett that he would make and deliver to Amanda a deed conveying to her the title to the part of the land which he then owned; and, acting on this promise, Barnett negotiated the loan, representing to the Security Investment Company that Amanda had title to the entire tract on which the loan was made. The company acted on this assurance in making the loan and in taking the deed from Amanda to the entire tract. A part of the money loaned by it was turned over by her to Thomas Clark, and used by him to pay off an incumbrance on his part of the land: Afterwards, Amanda, at his instance, executed to her daughter, Annie O. Clark, a warranty deed to the land. The plaintiff sued on the note transferred to her, but did not obtain final judgment until after several years of litigation, in which the Clarks interposed every possible obstacle to a recovery. After she had obtained judgment, she procured the execution of a conveyance of the land by the Security Investment Company to Amanda Clark, for the purpose of levy and sale. A levy was made, and Annie O. Clark interposed a claim, but withdrew it. The Clarks are insolvent. They are in possession of the land, collecting the rents. It has depreciated in value, and would not at sheriff’s sale bring a sum sufficient to pay the debt. It is the purpose of the Clarks to harass and delay the plaintiff in the enforcement of her rights, by filing frivolous claims, and by other means, as long as possible. It is alleged that Thomas Clark is estopped from asserting title to any part of the land, as against the Security Investment Company and the plaintiff; that the Security Investment Company holds the title to the land as trustee for the plaintiff; and that the plaintiff is the owner of a complete equity in the land. The plaintiff prays that title to the land be decreed .to be in her; that the Security Investment Company be required to make a conveyance of the land to her; that she recover the land from the Clarks, and that a writ of possession issue; that the defendants be enjoined from collecting the rents or interfering with the property ; and for general relief.</p> <p>The Clarks demurred, on the grounds, that the petition is without equity; that the plaintiff has a remedy at law by enforcement of her fi. fa. against the land ; that it is not alleged that the plaintiff is the present holder and owner of the judgment against Amanda Clark, or that she has not been reimbursed the amount of money “she loaned to the said Amanda;” and that it is not alleged that the title to the land has ever been conveyed to the plaintiff by the Security Investment Company. Thomas Clark demurred on the ground that no sufficient facts are set forth to raise afi estoppel against him to assert title to a part of the land; and that if an estoppel exists, it can be set up to defeat any claim filed by bim to a levy on the land. The court sustained the demurrer and dismissed the petition, but at the same term, on the plaintiff’s motion, vacated the order of dismissal and reinstated the case. The Clarks excepted.</p>

<p>Bail-trover. Before Judge Calhoun. City court of Atlanta. January 16, 1904.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. April 2, 1904.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court-March 1, 1904.</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court. March 8, 1904.</p>

<p>Rule for contempt. Before Judge Reid. City court of Atlanta. March 15, 1904.</p>

<p>An equitable accounting between partners may be had in cases where one partner has sought to withhold from his copartner the right of participation in the partnership and to exclude or expel his copartner, without a prayer for a dissolution. Where, in a suit of this character, the various issues were referred to an auditor, to whose report exceptions were filed, the judge had authority to pass on the exceptions without submitting the issues made thereby to a jury. A judgment overruling the exceptions and making the auditor’s finding the judgment of the court, unexcepted to, is valid and final.</p>

<p>Action for damages. Before Judge Reid. City court of Atlanta. March 31, 1904. ^</p>

<p>Certiorari. Before Judge Lumpkin. Eulton superior court. May 18, 1904.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. April 13, 1904.</p>

<p>Exception to auditor’s report. Before Judge Lumpkin. Eulton superior court. June 24, 1904.</p> <p>The exception to the auditor's report was classified as an exception of law, and was in these words: “ The auditor erred in finding the following judgment, to wit: ‘The master further finds that the plaintiff would be entitled to a Verdict and judgment for said sums against Zach. T. Castleberry as administrator of the estate of M. T. Castleberry, late of said county, deceased, security on the bond of the defendant Crawford, to be made only de bonis testatoris, but under the proof submitted the master reports that the plaintiff by his own laches is not entitled to pursue the estate distributed.’ (1) Because said judgment is contrary to law, is contrary to the evidence, and that there are no evidence or law authorizing any such judgment as the one rendered above mentioned; for under the evidence and the law the judgment should have been against Zach. T. Castleberry as administrator of M. T. Castleberry, deceased, de bonis testatoris. ”</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. July 29, 1904.</p>

<p>1. Declarations and entries of a person since deceased, against his interest, and not made with a view to pending litigation, are admissible in any case.</p> <p>2. If the declaration or entry contains statements both in favor of the declarant and against his interest, the statements are to be balanced, and if those in favor of interest equal or preponderate over those against interest the declaration is not admissible ; otherwise it is.</p> <p>3. Such declarations or entries when admitted are evidence as to any fact stated therein which was within the knowledge of the declarant or which it was his duty to know.</p> <p>4. The allegations and the evidence made such a case of irreparable damage that the judge was authorized to grant an interlocutory injunction to preserve the status until the issues involved could be passed upon by a jury.</p>

Validation of bonds. Before Judge Mitchell. Berrien superior court. January 3, 1905. On November 23, 1904, an election was ■ held to determine whether the town of Adel should issue bonds for the purpose of raising money to erect and furnish a school building.

<p>1. A warranty deed to “E. H. P., vice-president of the National Bank of the Republic,” conveys title to E. H. P. individually, the words “vice-president,” etc., being descriptio personas; and where such a deed recites that it is given as security for a debt, and contains a power of sale, that power can not be exercised by “ C. H. S., cashier of the National Bank of the Republic.”</p> <p>2. The filing of such a deed for record in the office of the clerk of the superior court of the county in which the land was situated was notice to the world of its execution from the time it was filed. Durrence v. Northern National Bank, 117 Ga. 385, approved.</p> <p>3. Where a warranty deed to secure a debt contains no defeasance clause, and no bond to reconvey is executed contemporaneously therewith, the grantee being given the power to sell. the land at public outcry upon default in the payment of the debt, it is not necessary that title be again placed in the grantor in order to bring the property to sale.</p> <p>4. Where the title conveyed by such a deed is in a bank, the power of sale can not be exercised by “ C. H. S., cashier” of the bank.</p> <p>6. Where the grantor in a security deed dies .after the execution of the deed, in exercising the power of sale the property should be sold as that of his estate.</p>

Petition for specific performance. Before Judge Seabrook. Appling superior court. January 9, 1904.

<p>1. It is not the duty of a railway company to awaken a sleeping passenger, in order to advise him that .his destination is reached and enable him to leave the train.</p> <p>2. A failure of a railway company to duly announce to passengers the arrival of its train at a regular station affords no cause of action against it to a passenger who was bound for such station and carried beyond it, when he was soundly asleep when the train arrived there and departed therefrom, although he alleges, in his petition, that he was “very easy to awake from sleep,” and that the mere announcement of the station would have been sufficient to arouse him from sleep; the allegation as to the effect upon him of such an announcement being a mere inference or conclusion, too conjee- . tural and speculative to be susceptible of satisfactory proof.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. February 10, 1904.</p> <p>According to the testimony for the plaintiff, her horse and a wagon to which it was attached were in the street, standing as near as possible to the curbstone of the sidewalk, his head down and fronting south, when an electric car going north approached very rapidly. About the time it was opposite the horse, the motorman of the car rang a gong, and the horse suddenly threw up his head, turning it slightly toward the car,.and was struck on the side of his head by a hand-bar attached to the car, and in-' stantly killed. The width of the wagon was about 6 feet and 3 inches, and the distance between the curbstone and the car-track was 8 feet and 4 inches. The car was “exceédingly wide.” It was open, with seats extending across it, and with posts at the sides, from which hand-bars extended about 3 1/2 or 4 inches. . The horse was struck by the first or second hand-bar. He could not have turned his head towards the ear without being hit. The motorman stopped the car about 150 feet from where the horse was struck. Nobody was with the horse, his driver having gone into a house in front of which the wagon was standing. The horse and wagon were used for the purpose of delivering groceries, he was very gentle, was accustomed to the cars, had been left at' the same place before, and had never exhibited any fright at the cars; they had run by without his raising his head as they passed. There was no other noise to attract his attention at the time he lifted his head than that of the car and gong. His value was $175. There was evidence for the defendant to the effect that the car was running slowly; that the speed was between 6 and 8 .miles an hour; that it stopped about a car-length from where the horse was struck; and that the gong was not rung, — that it was not necessary to ring it.</p> <p>The verdict was against the railway company, for $75. In its motion for a new trial, the overruling of which it assigned as error, it alleged that the verdict was contrary to law and the evidence, and that the court erred in the following instructions to the jury: (1) “ That law means this, that when the plaintiff shows that this horse was killed, the law presumes negligence against the company. It presumes that the company was negligent, and then the burden is shifted to the railway company to show that it exercised all reasonable and proper care and diligence; and if it shows that, then you would be authorized to find against the plaintiff and for the company.” (2) “ A railway company can not use unnecessary noises to frighten horses.” (3) “ If you'believe that it was an unnecessary noise, and that unnecessary noise frightened the horse, then you would find this fact against the railway company.” It is alleged that the first of these instructions was error, because the court failed to charge, in connection with it, as to other defenses which would relieve the defendant from liability ; and that the other instructions were erroneous in charging that the use of unnecessary noises was negligence per se, and also in stating only a part of the rule, the law being that noises must be both unusual and unnecessary before the jury can base on them a finding of negligence.</p> <p>Cited by counsel, as to the general grounds of the motion for a new trial: 117 Ga. 221; 114 Ga. 133, s. c. 119 Ga. 70 ; 114 Ga. 760; 93 Ga. 253; Id. 319; 79 Mo. 336(4); 25 Mo. App. 227 ; 39 111. App. 443 ; 64 Miss. 637, 641; 21 So. 249 ; 5 So.-630 ; 3 So. 170; 44 Pa. 929; 29 S. W. 320;' 39 S. W. 31; 37 Atl. 516; 74 N. W. 361; Thomp. Neg. §2108. As to the charge of the court: Civil Code, § 2322; 68 Ga. 744(3); 118 Ga. 418; 120 Ga. 475 ; 94 Ga. 560; 104 Ga. 247; 113 Ga. 849; 114 Ga. 370, 386, 389; 110 Ga. 247(2); 119 Ga. 523 (4); 121 Ga. 29 ; 101 Ga. 66.</p>

<p>Action of trespass. Before Judge Calhoun. City court of Atlanta. January 29, 1904</p> <p>The plaintiff sued as administrator, alleging that, after he had qualified as such, the defendant illegally and forcibly, and without any authority, took from his possession and deprived him as administrator of his legal possession of certain furniture which his intestate had bought from the defendant. At the trial it appeared, from the plaintiff’s evidence, that at the time of the intestate’s death, which occurred in February, 1903, the furniture was in her possession, at the house in which she resided; that the plaintiff, after he had qualified as administrator, left the furniture at the house, with a person residing there, who took charge of it as his agent, and who was in charge of it as such when, in April, 1903, the defendant forcibly took possession of it, claiming title to it under a written contract signed by the intestate, which the plaintiff introduced in evidence, and which is described in the foregoing decision; also that the intestate failed to pay a part of the purchase-money, and that it was still unpaid when the defendant took possession of the furniture. The court granted a nonsuit, and the plaintiff excepted.</p> <p>Cited by counsel: Civil Code, §§2909, 2948; 112. Ga. 148, 340 ; 114 Ga. 338.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. March 24, 1904. .</p> <p>cited 118 Ga. 462; 114 Ga. 906 ; 96 Ga. 518.</p>

<p>Appeal. Before Judge Lumpkin. Fulton superior court. March 14, 1904.</p>

<p>Foreclosure of lien., Before Judge Reid. City court of Atlanta. May 9, 1904</p>

Levy and claim. Before Judge Evans. Bulloch superior court. February 1, 1904. On December 14, 1901, Everett obtained a judgment against Donaldson. On December 19, 1901, the execution was levied on a Kimball organ. A claim was filed on December 12, 1902, and was tried in April, 1903. The plaintiff in fi. fa. assumed the burden, and proved that the property, when levied on, was in the possession of the defendant, who, as next friend for his minor children, filed the claim.

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. August 8, 1904</p>

Complaint. Before Judge Taliaferro. City court of Sanders-ville. May 24, 1904. W. R. Trussell sued J. W. E. Trawick on an open account. While the defendant denied all the allegations in the petition, yet there was a dispute only as to a few of the items. About these the evidence was conflicting.

<p>Application for administration. Before E.. W. Jordan, judge pro hac vice. Johnson superior court. July 13, 1904.</p>

<p>Petition for. mandamus. Before Judge Gober. Fannin superior court. December 19, 1904.</p>

<p>Protest to return of processioners. Before Judge Evans. Washington superior court.. March 18, 1904.</p>

Trover. Before Judge Carter. City court of Baxley. June 28, 1904. On March 14, 1903, Truitt executed a contract in the form of a deed, in which he “granted, bargained, and sold” to Johnson, “his heirs and assigns, all the timber and logs suitable to be manufactured into cross-ties” on described lots of land. Johnson was given all rights of ingress and egress necessary for the manufacture and removal of the cross-ties.

<p>Injunction. Before Judge Parker. Clinch superior court. June 27, 1904.</p>

<p>Equitable petition. Before Judge Kimsey. Clinch superior court. July 11, 1904.</p> <p>L. Mohr &' Sons and other creditors of R. J. Booth & Company, a partnership composed of R. J. Booth and Jessie R. Booth, instituted an equitable proceeding against that firm, Lucretia J. Booth, and the Citizens Bank of Valdosta, praying for an injunction, the appointment of a receiver, and other equitable relief. The facts alleged in the plaintiffs’ petition were substantially as follows: Booth & Company had conducted a general merchandise business in the town of Argyle, during the course of which that firm became indebted to petitioners in various amounts stated. On May 5, 1903, Booth & Company, for the purpose of hindering, delaying, or defrauding creditors, made a pretended sale to Lucretia J. Booth of all the firm assets and property for the expressed consideration of $6,650, which amount she claims to have paid and which R. J. Booth admitted was in his possession on May 12, 1903, though he at the time refused to make payment of petitioners’ demands. R. J. Booth is the son of his partner, J. R. Booth, who is the husband of Lucretia J. Booth. At the time of the conveyance to her of the partnership assets, she knew that the firm was largely in debt for the merchandise contained in its storehouse, and further knew that the property conveyed to her comprised all the assets out of which its creditors could be paid; and she also knew that “ the purpose of said pretended sale to her was a sham and a fraud and the result of a scheme concocted between [Booth, & Co.] and herself to hinder, delay, or defraud ” petitioners and other creditors, and “ for the fraudulent purpose of covering up and concealing the tangible assets of ” that firm and enabling its members “ to conceal and hide away from petitioners and other creditors the said assets and the money which she claims to have paid for. the purchase thereof.” The defendant partnership was solvent at the time its property was so conveyed to Mrs. Booth, but the conveyance to her rendered the firm insolvent, in that there was left in its possession no property out of which any money could be made by judgment, execution, and levy, and the object of the conveyance was to defeat plaintiffs and other creditors. The pretended sale was the result of a collusive scheme between father, son, and mother, to defeat the claims of creditors, and Mrs. Booth is now actively engaged in selling and converting into money the stock of goods. On the day of the pretended sale she paid by check the sum of $75 on an account due one of the creditors, which payment was made in pursuance of the fraudulent scheme charged. Prior to May 5, the defendant partnership liad an account with the Citizens Bank of Yaldosta and had money on deposit to its credit; but on or about May 6, the members of the firm went to the city of Yaldosta and had its bank account transferred to Mrs. Booth, in whose name the account now stands, though the money on deposit really belongs to the firm and is subject to the payment of its debts. Unless the defendant R. J. Booth be restrained from disposing of the $6,650 which he admitted on May 12 to be in his possession, and this money be turned over to a receiver, it will not be forthcoming to pay the claims of petitioners, nor will the money on deposit in the bank, unless it be restrained from paying out the same and called on to disclose the facts concerning its transfer to Mrs. Booth. By reason of her collusion with her husband and son, she has made herself a trustee ex maleficio for the creditors of the partnership, and has rendered herself liable to a personal judgment for the debts it owes its creditors. Petitioners can not adequately protect and enforce their rights as creditors in any ordinary suit at common law, and to attempt to do so would result in a multiplicity of suits.</p> <p>To this petition the defendants filed a general demurrer, alleging that, under the facts recited, the plaintiffs were “ not entitled to maintain their said suit or to pursue the remedy and obtain the relief as sought therein.” The defendants also filed an answer, in which they denied all charges of fraud and collusion, ^nd alleged that the sale of’the property of Booth & Company to Mrs. Booth was made in good faith and' she was an ■ innocent purchaser for value. They further answered that the sale was not made for cash, but that Mrs. Booth had given her promissory notes for the agreed purchase-price of $6,650. On the interlocutory hearing, the court appointed a receiver and granted the injunction prayed for, but its order was subsequently vacated upon the defendants giving bond. At the trial term of the case the court overruled the demurrer to the petition, which had previously been amended by adding a prayer that the promissory notes alleged to have been given by Mrs. Booth, which were negotiable, be impounded in court until its final decree, and judgment thereon be then entered up against her, and that R. J. Booth and J. R, Booth be in the meantime restrained from disposing of said notes. To the overruling of the demurrer the defendants excepted pendente lite. The case was then tried on its merits, upon the petition and answer and certain interventions which had been interposed by other creditors of Booth & Company. The jury returned a special verdict, on written questions submitted for their determination; and on this verdict the court entered up judgment against all the defendants save the Citizens Bank, which was merely a nominal party and had been dismissed from the case. The defendants thereafter made a motion for a new trial, which, after being amended at the hearing thereof, was overruled. Upon the overruling of their demurrer and the refusal of the court to grant a new trial they assign error.</p>

Action for damages^ Before Judge Gale. City court of Brunswick. July 19, 1904. Sullivan, a negro, sued Padrosa and Jackson for damages on account of an assault and battery. Jackson was not. served, and Padrosa alone answered, denying the. material allegations of the petition so far as they concerned him. There was a verdict for the defendant, and the plaintiff excepted to the overruling of his motion for a new trial.

Injunction. Before Judge Parker. Coffee superior court. October 17, 1904. Jobn A. Gaskin filed a petition to enjoin the Gray Lumber Company from cutting timber on certain lots of land. He claimed title to a part of the land under a deed from F. H. Gaskin, dated February 16, 1903, conveying the fee.

<p>1. Mutual confidence being the foundation of the partnership relation, the mere fact that a member of a partnership is not the owner of property which he has embarked in the partnership enterprise, the same belonging to a third person, who has consented that it may be so used for his benefit, but whose interest is not disclosed to the other member of the partnership, does not cause a partnership relation to arise between the other partner and the concealed principal of his copartner.</p> <p>2. A partner may make an agreement with a third person for a division of the profits coming to him from the partnership enterprise-; and if the character of the agreement is such as to disclose the essentials necessary to a partnership, a subpartnership is thereby formed between the partner and the third person, but such person does not become a member of the first partnership, nor is he liable for the debts of that partnership.</p> <p>3. Husband and wife may in this State lawfully transact business as copartners, and therefore thei-e may be a subpartnership between a husband and wife in reference to the profits of a business in which the husband is a partner.</p> <p>4. In a subpartnership of the character above referred to, where the members are husband and wife, a gift by the wife to the husband, of a portion of her interest in the profits which the husband would derive from the first partnership, is valid, and the use by him, or by his copartner, of such profits to discharge a debt of the husband would not render his partner liable to the wife on account of having used her money for the purpose of paying her husband’s debt.</p> <p>6. The verdict for the defendant was demanded by the evidence, and any errors that may have been made by the judge in his instructions to the jury did not require the granting of a new trial.</p>

<p>1. Before one can be held bound by the acts of another who assumes to represent him, due proof Of agency must be made; and a letter purporting to have been dictated by a party against whom it is offered as an admission is not admissible in evidence in the absence of proof that he was in fact the author of it.</p> <p>2. Where there has been a conversion of personal property, an offer by the wrong-doer to make amends by substituting like property in its stead will not relieve him of the consequences of his wrongful act; but where it is a disputed issue of fact whether there has been a conversion, rather than an innocent mistake committed in destroying certain promissory notes, evidence as to an offer to execute other notes to take their place may throw light on the transaction, as illustrating the good faith of the party who destroyed the notes. .</p> <p>$. After a plaintiff has closed his case, a motion for a nonsuit has been made by the defendant, and the court has announced that the motion will be sustained, it is usually discretionary with the court whether or not the plaintiff will then be permitted to reopen the case in order that he may introduce additional testimony which he might have offered before he closed his case.</p> <p>4. When a plaintiff in a trover suit elects to take a money verdict, but wholly fails to show the value of the property alleged to have been converted by the defendant, no money recovery in favor of the plaintiff can be had, and the awarding of a nonsuit is proper.</p>

Complaint. Before Judge Reid. City court of Atlanta. April 28, 1904. On August 17, 1903, Mrs. G. D. Stahley brought suit against Mrs. M. C. Pursley..

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. May 11, 1904.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. April 28, 1904.</p> <p>Wilder sued for injuries sustained by him in stepping from a car of the defendant, on which he was a passenger. It was alleged that the conductor called the station at which he had requested to he put off, and that, believing, from the announcement, that it was safe to alight and that the car had stopped, he proceeded to step from it, when it was in motion, and received .certain physical injuries; that it was at night, and he supposed the noise and vibration of the car were caused by the air-brake under it, which made a sound and produced a vibration when the car was at rest, similar to that made by a car in motion. After testifying in chief to the facts stated in the petition, the plaintiff testified, that he saw the gate at Fort McPherson; that he did not know how fast the car was running when he stepped off, but it was running pretty fast. “ It hadn’t slowed up very much. It was running very nearly as fast as it had been all the way along there... It was running the way it had been coming down to the fort. It slowed up a little, but not much; not much from the way I fell. . . I saw the lights over there iuside the barracks.” A nonsuit, was granted and the plaintiff excepted.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. April 29, 1904:</p>

Action on contract. Before Judge Reid. City court of Atlanta. June 2, 1904. The Cornelia Planing Mill Company brought an action against the Seaboard Lumber Company, alleging that the plaintiff had purchased from the defendant a car-load of No. 1 common lumber to be delivered at Cornelia, Georgia. Collection was by draft with bill of lading attached, and payment was made before the lumber was inspected. Upon delivery it was found to be of inferior quality.

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. September 21, 1903.</p>

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. June 9, 1904.</p>

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. August 9, 1904.</p> <p>The petition of John B. Hairston against the Louisville and Nashville, Atlantic Coast Line, and Georgia Railroad Companies alleges, that the petitioner was a switchman and brakeman; that in the performance of his duty he was' on the footboard of the engine for the purpose of coupling the engine to a car by means of what is termed a drawhead; that to operate said drawhead he raised a lever which pulls out a pin and permits the drawhead to automatically lock and fasten; that it also became necessary to move the drawhead so that it would meet and catch on the cab; that while holding up the lever with one hand, balancing himself on the footboard by holding to the engine with the other, and endeavoring to push the drawhead, the engineer gave a sudden, unusual, and abrupt jerk, running up to and against the other part of the drawhead attached to the cab, throwing petitioner out of balance and causing his foot to slip and be thrown into the inner part of the drawhead attached to the engine and into the part with that which locked with the other part attached to the cab, thereby seriously damaging his foot and leg. It is alleged that the defendants were negligent in maintaining a defective coupler which was loose and out of repair and would not automatically couple, and in maintaining the drawhead so that it could not be operated by the lever but required pressure by foot or other means; that at that time the engine was running across Moore street in Atlanta at the rate of fifteen miles an hour, in violation of the ordinance of the city; that the engine was running at that rate when it came in two or three feet of the cab or car; that the engineer, to prevent running into the cab and causing a collision, gave a sudden, unusual, and abrupt stop as he ran the engine up to and against the cab, throwing the petitioner out of balance and his foot into the drawhead; that the plaintiff was in the exercise of all proper care' and was without fault; that he did not know the defects of the drawhead, and could not have known thereof by the use of ordinary care, but the defendants did know of the defects, or could have known by the use of ordinary care; that he did not have an equal opportunity of knowing of the defects; that he was not injured by any risk incident to the kind of work he was doing. By amendment he alleged, that he was standing at the only place where he could perform the duties assigned to him; that he was performing duties in the manner that required the least danger to his person; that he was without fault and exercised all possible care, and could not perform the duties assigned in any other manner without the greatest danger to his person and limb. The defendants demurred on the ground that the petition set out no cause of action and showed the plaintiff himself was guilty of gross negligence. The court overruled the demurrer, and the defendants excepted.</p>

Action on bond. Before Judge Roan. DeKalb superior court. September 1, 1904.

<p>Where a plea in a city court established under the provisions of the Civil Code, §§4270 et seq., has been filed after the expiration of the time allowed by law, but the case has never been marked in default, on the call of the case for trial the plea should not be stricken because it was not filed at the appearance term.</p>

<p>Action on insurance policy. Before Judge Daley. Tattnall superior court. April 4, 1904.</p>

<p>Action for damages. Before Judge Evans. Bulloch superior court. February 15, 1904.</p>

<p>Action for damages. Before Judge Daley. Screven superior court. June 22, 1904.</p>

<p>Levy and claim. Before Judge Daley. Tattnall superior court. May 14, 1904.</p>

<p>1. Penal Code, § 79, contemplates and seeks to prevent the concealment of the death of such infants as, having been illegitimately begotten, arrive at the stage where they are ordinarily called “quick” and would, in the usual course of events, probably be born alive.</p> <p>2. A child of a married woman, begotten by one who is not the husband of the mother, is a bastard.</p> <p>3. Where the indictment charges and the evidence conclusively shows the commission of the completed act of concealment, an instruction that a conviction could be had of an “ attempt to conceal ” is not prejudicial error requiring the grant of a new trial.</p>

<p>Petition for injunction. Before Judge Littlejohn. Macon superior court. December 16, 1904.</p>

<p>. Injunction. Before Judge Mitchell. Thomas superior court. December 19, 1904.</p>

<p>Action of trespass. Before Judge Parker. Ware superior court, April 25, 1904.</p>

<p>■ Complaint. Before Judge Reid. City court of Atlanta. May term, 1904.</p>

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. June 6, 1904.</p>

<p>1. A contract of sale provided that a given amount was to be paid in cash and the balance of the purchase-price “ to be paid as provided hereafter.” Held: (1) That the contract was ambiguous as to the method of payment of the balance of the purchase-money. (2) That in order to explain this ambiguity it was competent to prove by parol that, pvior to the execution of the contract, an agreement had been made between the parties that the balance of the purchase-money was to be paid out of profits of an enterprise referred to in the contract, and if there were no profits no amount was to be paid.</p> <p>2. The petition setting forth a cause of action upon an alleged unconditional contract to pay a stated sum, and the answer denying that a contract of this character had been entered into, and averring that the real contract was one conditioned upon the making of profits in a given enterprise, proof showing that the contract was of the character claimed by the defendant was sufficient to defeat a recovery by the plaintiff, without reference to whether it appeared from the evidence that there were profits resulting from the management of the enterprise.</p> <p>3. When the judge in his instructions to the jury fully explains the issues involved in the case, the refusal of a written request to charge that the jury are not to consider evidence disclosing other issues between the parties growing- out of the transaction involved, except in so far as they throw light upon the controlling issues in the case, is no sufficient reason for reversing a judgment refusing to grant a new trial.</p> <p>4. There was no error in refusing to declare a mistrial.</p> <p>5. The evidence warranted the verdict, and no sufficient reason appears for reversing the-judgment.</p>

<p>Certiorari. Before Judge Reagan. . Campbell' superior court. February 1, 1904.</p>

<p>Action for damages. Before Judge Roan. DeKalb superior court. July 9, 1904.</p>

<p>Equitable petition. Before Judge Evans. Washington superior court. March 18, 1904.</p>

<p>Distress warrant. Before Judge .Taliaferro. City court of Sandersville. April 23, 1905.</p> <p>An affidavit to obtain a distress warrant recited that “ J. K. Stephens, agent for E. L. Stephens, . . on oath says that Jeff Hooks . . is justly indebted to him ” in a stated sum for the rent of a described farm. The affidavit was signed, “ J. K. Stephens.” Upon this affidavit a distress warrant issued, which recited that “ J. K. Stephens, agent for E. L. Stephens, having made oath that Jeff Hooks . . is justly indebted to him” in the sum named in the affidavit, for the rent of the farm therein described, and commanded the officer to whom the warrant was directed to seize a sufficiency of the property of Hooks to make the sum named and all costs, and to have these sums at a stated term of the city court of Sandersville, “to render to the said J. K. Stephens, agent for E. L. Stephens.” Hooks interposed a counter-affidavit, which contained, among other averments, an allegation that the warrant was proceeding against him illegally “as a tenant of the said J. K. Stephens,- when in fact the relation of landlord and tenant does not exist between J. 3L Stephens and this deponent.” At the trial there was evidence authorizing a finding that the relation of landlord and tenant did exist between E. L. Stephens and the defendant, but the evidence demanded a finding that no such relation existed between J. K. Stephens and the defendant. The jury returned a verdict in favor of the defendant, and the plaintiff excepts to the overruling of his motion for a new trial.</p>

Action for damages. Before Judge Daley. Johnson superior court. May 7, 1904. Rowland sued Linder for $10,000, as damages.

<p>Levy and claim. Before Judge Daley. Tattnall superior court. May 14, 1904.</p> <p>An execution in favor of Giles against Tapley was transferred to Burkhalter, and levied on a tract of land as the property of Tapley. Durden interposed a claim. The claimant derived title as follows : The land in dispute was sold at sheriff’s sale and a deed made to Giles- and Kelley, the deed reciting that the sale was in pursuance of a levy under an execution in favor of Smith. The record shows that the Smith execution has been lost, and its date is not shown. Giles and Kelley conveyed to Meadows, who at that time held a purchase-money mortgage on the land. Meadows conveyed to the claimant, by warranty deed dated March 24, 1899. There was evidence for the plaintiff that when Meadows received his deed from Giles and Kelley it was agreed that Tapley should have a right to redeem the land, and that Durden knew of this when he received his deed from Meadows. The plaintiff testified further, that Durden had stated that he had “ some money in the land;” and that his deed from Meadows was to secure the repayment of this sum; and that the plaintiff had offered to pay Durden this amount, “if he would account for the issues and rents of the place and make James Tapley a deed to it, and he refused to do it.” The evidence was undisputed that Tapley had been in possession of the land, and that Durden had never received any rents from it. The court directed a verdict for the claimant. The plaintiff excepted to the overruling of his motion for a new trial.</p>

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

<p>Conviction of voluntary manslaughter. Before Judge Lewis. Jasper superior court. January 9, 1905.</p>

<p>The act approved August It, 1903 (Acts 1003, p. 588), incorporating the town of Menlo, undertook to incorporate an area about four miles square, to establish a public school system therein, and to create a board of school commissioners with power to levy taxes for school purposes on all the property in the area described, but limited the exercise of all municipal functions to an area embraced in a circle one mile in diameter located inside the square. Held, that at least in so far as the act applied to the territory within the square but outside the circle, it was unconstitutional, in that it was an attempt to establish, a school district by evasion, and was a special law enacted in a case for which provision had been made by an existing general law.</p>

Petition for partition. Before Judge Lumpkin. Fulton superior-court. March 31, 1904.

Exceptions to auditor’s report. Before Judge Roan. DeKalb superior court.- September 18, 1903. An execution for $1,207.56 principal, and $60 interest to August 14, 1897, in favor of the Southern Home Building and Loan Association, for the use of the Equitable Loan and Security Company, against Henry C. Austin, and especially against a described tract of land, was levied upon the land therein described, and a claim was interposed by his wife.

<p>Where the expenses of a municipal corporation, in excess of its revenues, have been allowed to accumulate for a series of years, the municipality has no lawful authority to issue'its bonds to raise a fund for the payment of such indebtedness, though two thirds of the qualified voters of the municir pality may assent thereto at an election held for the purpose of deciding whether such bonds shall be issued, Before bonds of a municipality can be lawfully issued, two thirds of its qualified voters must assent, at an election held for that purpose, for the municipality to incur or create;the debt which the bonds are to cover.</p>

Equitable petition. Before Judge Henry. Eloyd superior court. July 25, 1904. Ou February 1, 1899, the parties signed an instrument partly printed and partly written.

<p>Rule for contempt. Before Judge Littlejohn. Dooly superior court. January 16, 1905.</p>

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

Action for trespass. Before Judge Parker. Coffee superior court. July 16, 1904. This was a proceeding by Brinson, as surviving partner of Brinson & Son, to enjoin Mack Kirkland from committing trespass, and for the recovery of damages for timber cut by him on lot 121 in the 7th district of Coffee county. Both parties claimed under Timothy Fussell as a common grantor, the defendant having the oldest recorded paper title.

Action on contract. Before Judge Reid. City court of Atlanta. April 5, 1904. The Lowry National Bank sued Eickett and others as guarantors, to recover $1,333.34 principal, besides interest.

<p>A brief of evidence is essential to the validity of any motion for a new trial -r and a paper presented as a motion for a new trial, which Was unaccompanied by anything purporting to be a brief of the evidence introduced on the trial,.was properly dismissed.</p>

<p>Complaint. Before Judge Calhoun. City court of Atlanta. May 9, 1904.</p>

Certiorari. Before Judge Roan. Fulton superior court, April 23,1904. Summons of garnishment was issued on a judgment rendered by a justice of the peace, and a claim to a fund thus brought into court was filed by Peel. The plaintiff introduced in evidence the justice’s docket. The docket showed that at the April term, 1900, suit on an account was brought by Field against the Atlanta Horse Exchange.

<p>Actions on bonds. Before Judge Lumpkin. Fulton superior court. June 21, 1904.</p>

<p>Injunction. Before Judge Lumpkin. Fulton superior court.' December 2, 1904.</p> <p>Plaintiff not entitled to complain of rules and agreements to which it was a party: 18 N. J. L. 87; 9 N. Y. S. 529; 60 Tex. 438; 170 N. Y. 321; 58 Hun, 393; 120 Ga. 597. In pari delicto: 11 Paige, 349; 1 McLean, 460; 101 Mass. 363; 1 Chand. 207; 8 L. R. A. 469; 2 Hill, 517; 1 East, 96; 8 T. R. 575; 79 U. S. 349; 10 Me. 71; 14 N. Y. 94; 57 N. Y. 518; 20 Wend. 24; 6 Cow. 431; 38 Fed. 191; 83 Ala. 146; Smith, Con. (3d Am. ed.) 187.</p> <p>Interference with contract relations: 151 U. S. 13; 2 El. & Bl. 216; Bigelow, Torts (5th ed.) 80; 43 Ga. 331; Id. 601, 604; 49 Ga. 580; 75 ■Ga. 198; 46 Ga. 578, 624; 56 N. H. 456 (22 Am. R. 475); 15 5. C. (40 Am. R„ 680); 6 S. 0. 297 (24 Am. R. 471); 70 N. C. 601 (16 Am. R. 780); 44 Up. Can. 287; 16 A. & E. Ene. L. (2d ed.) 1109, 1111, 1114; Webb’s Pollock, Torts (Am. ed. 1894), 278, 279, c. L. R. 2 C. P. 622; 4 Moore, 12 (16 E. C. L. 357, 21 Rev. Rep. 733); 177 Mass. 485; 39 N. J. L. 569; 23 Fla. 206; 107 Mass. 556, 564; 2 Wend. 385; L. E. App. Cas. (1901) 495, 525; 1 Wyman’s Cases, 154; Erie, Trade Un. 12; L. R. 2 K B. (1902) 732; 1 Q. B. 715; L. R. 6 Q. B. Div. 333; Ames, Torts, 613; 106 Mass. 1 (8 Am. R. 287); 176 Mass. 492; 176 111. 608 (52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797, 802, 68 Am. St. R. 203); 30 Eed. 48; 17 N. Y. Supp. 264; 59 Yt. 273 (9 Atl. 559, 59 Am. R. 710); 22 N. Y. Supp. 826 (Ames, Cas. on Torts, 701); 147 Mass. 212 (17 N. E. 307); 52 N. J. L. 284 (10 L. R. A. 184); 83 Eed. 912; 32 Am. L. Rev. 124; 55 Conn. 46; 80 Tex. 400; 62 Eed. 803, 818-21; 84 Ya. 927 (6 S. E. 620, 10 Am. St. 895); 54 Eed. 730; 69 Wis. 483 (34 N. W. 522); 53 N. J. Eg, 101 (30 At. 881); 67 Yt. 690 (32 Atl. 814); 51 Fed. 260; 182 Pa. St. 236 (38 L. R. A. 382); 76 N. C. 355; 158 U. S. 725; 21 L. R. A. 233; 54 C. L. J. 425-6; 56 C. L. J. 253, 314; 1 Jagg. Torts, §§ 204-7; 2 Add. Torts, 739 ; 1 A. & E. Ene. L. (2d ed.) 507; 2 Id. 507; 20 Id. 181; Wood, M. & S. 450; 21 Am. L. Rev. 767. Illegal combinations and contracts in restraint of competition and trade: Civil Code, §§3668, 5798, 5800; Acts 1896, pp. 68, 73; 115 Ga. 429; 111 Ga. 789; 104 Ga. 188; L. R. App. Cas. (1901) 526; 54 U. S. App. 723 (C. C. App. 141, 85 Eed. 271, 46 L. R. A. 122) ; 52 S. W. (Tenn.) 853 ; 1 Eddy, Combinations, § 530, p. 432; 139 N. Y. 251 (36 Am. St. R. 690, 23 L. R. A. 221, and n.); 55 C. L. J. 144, 163; 23 L. R. A. 588; 6 M. & Gr. 205; 21 Am. L. Rev. 509; 33 Id. 885; 34 Id. 164. Definitions of conspiracy: 1 Eddy, Comb. § 576, p. 506, §§ 337, 340, 342, 343, 351, 364; 115 Ga. 429; 52 C. L. J. 222, 251; 54 C. L; J. 251; 18 A. & E. Ene. L. (2d ed.) 80 ; Wright, Crim. Conspiracy, 51, 525; L. R. App. Cas. (1901) 528-9. Conspiracy to do acts which if done by an individual are lawful: 87 N. W. 472; 15 Harv. L. Rev. 402; 176 Mass. 492; Eddy, Comb. §§ 474, 501; L. R. App. Oas. (1901) 501. Agreement, not necessary to constitute conspiracy: 114 Wis. 460. Meaning of malice in such cases: 23 Q. B. 598, 608, 613-14; Webb’s Pol. Torts (ed. 1894), 409, 669, 670, 671; 52 C. L. J. 163; 16 A. & E. Ene. L. (2d ed.) 1112, 1113, 1115; 53 N. J. Eq. 101, 110 (30 Atl. 881); 43 L. R. A. 799; 3 Wash. 99; 30 Fla. 142; 17 L. R. A. 705; 3 Dak. 119; 48 Mo. 152'; 111 Mass. 498; 30 Conn. 80; L.R. App. Cas. (1898) 1; Wyman, Cases on Restraint of Trade, 151; L. R. App. Cas. (1901) 495, 514. Difference between persuasion and threats: 23 Fed. 748, 750-1; 101 111. App. 355; 54 C. L. J. 425'; 18 Am. & E. Ene. L. (2d ed.) 87. Malice and not conspiracy is gravamen of offense: 52 N. J. L. 284; 10 L. E. A. 184; Pollock, Torts, 267; 76 Me. 37; 7 Hill, 104; 7 Cow. 445; 2 Gray, 124; 2 El. & Bl. 216 ; 1 Wms. Saund. 234. Cases holding malice alone not. sufficient: 91 Ely. 121, 135 (34 Am. St. E. 165, 171); 98 Cal. 578 ; Cooley, Torts, 470 ; 48 N. Y. 430 (8 Am. E. 559); 2 Wend. 385 (20 Am. D. 623); 66 N. Y. 82 (23 Am. E. 30). Measure of damages: 23 L. E. A. 588; 56 N. H. 546; 44 Hp. Can. 287; 16 A. & E. Ene. L. (2d ed.) 1114; 47 Ga. 311 (3); 43 Ga. 601; 75 Ga. 198 ; 61 Ga. 482; Webb’s Pol. Torts (ed. 1894) 276. Association suable though not incorporated: L. E. App. Cas. (1901) 426; 56'C. L. J. 221; 15 H. L. E. (1901)-310; 63 Fed. 310 (25 L. E. A. 414) ; 26 Or. 527 (28-L. E. A. 464) ; 118 Mich. 479 (42 L. E. A. 407). Injunction: 45 Fed. 135; 63 Fed. 301; 23 L. E. A. 588; 18 A. & E. Ene. L. (2d ed.) 91. Doctrine that one who comes into equity must have clean hands does not apply: 1 Pom. Eq. Jur. (2d ed.) §§ 403, 397; 70 Fed. 383, 386; 4 Fed. 32, 34; 92 Ala. 497; 50 Ga. 418, 421-2; 115 Ga. 429 ; 11 A. & E. Ene. L. 164; 2 Beach, Eq. Jur. §16; 66 111. App. 571, 577; 65 Md. 73, 84-5; 159 Pa. St. 381, 384; 4 Fed. 32; 96 Cal. 53 (31 Am. St. E. 175); 46 N. Y. 615 ; 10 O. St. 501 (15 Am. D. 756).</p>

<p>1.. Except where the true owner is estopped from asserting title, the lien of a judgment only attaches to such interest as the judgment debtor actually has in the property levied on.</p> <p>2. The lien of a judgment against one holding stock is inferior to an existing lien arising by virtue of a by-law under the Civil Code, § 2825, even though the plaintiff in fi. fa. had no notice thereof at the time he made the loan, secured the judgment, or gave notice to the corporation under the Civil Code, § 5431.</p> <p>3. If the stock was subject to the by-law lien at the date the rights of the judgment creditor attached, and notice thereof was given at the sheriff’s sale, the purchaser could not compel a transfer without paying the amount due the company by the stockholder.</p> <p>4. The evidence warranted the finding that the by-law liten had not been waived, and that the purchaser had full notice of its existence and the amount due by the defendant in fi. fa.</p>

<p>Complaint for land. Before Judge Roan. DeKalb superior ■court. May 21, 1904.</p>

<p>1. In so far as the petition attacked the constitutionality of par. 21 of sec. 2 o'f the tax act of 1902, the case is controlled by the decision in Kehrer v. Stewart, 117 Ga. 969, 25 Sup. Ct. R. 403.</p> <p>2. If, after the amendment striking the principal as a party plaintiff, the agent had any right to be heard as to the inequality in the operation of the act, the pleading set up no fact entitling him to relief.</p> <p>3. The statute was uniform in its operation upon all persons coming within the terms of the act, and there was no suggestion of any facts whereby the petitioner was deprived of the equal protection of the laws.</p>

Injunction. Before Judge Cann. Chatham superior court. October 26, 1904.

<p>1. If the record shows sufficient and competent evidence to support the finding, or if that excluded would not probably have changed the result, the reviewing court will not pass upon assignments of error relating to the admission or rejection of evidence, on an interlocutory hearing of an application for injunction.</p> <p>2. The order requiring that each party submit to the other affidavits before the hearing did not apply to documentary evidence, and it was not error to receive the deed showing that the plaintiff was a taxpayer.</p> <p>3. The chancellor did not err in requiring -the plaintiff to produce its books. Besides, in view of the Etdmissions contained in the answer, their exclusion could not have changed the result.</p> <p>4. Neither the agents of the city through whom the donation was to be paid, nor the beneficiary of the proposed illegal gift, were necessary parties defendant.</p> <p>5. The former suit against the. officers alone did not operate as a bar to the present proceeding; nor could the defendant insist that the cost therein should be paid as a condition to the right to institute the present action against the town itself.</p> <p>6. The prohibition against making a donation directly to the railroad likewise prevents the city from indirectly making such donation by compensating citizens who have already paid over the money to the corporation.</p> <p>7. The fact that the note referred to in the petition had been satisfied would not prevent the chancellor from enjoining the payment of a renewal thereof.</p> <p>8. In view of the admissions in the answer, there was no error in granting an injunction against paying off the note or the renewal thereof, or the debt in whatever form it might exist.</p>

Equitable petition. Before Judge Lumpkin. Eulton superior court. January 27, 1904. S. T. Weyman and George W. Connors brought a petition to remove a cloud on the title to a vacant lot in the City of Atlanta, which, it was alleged, belonged to the petitioners in fee.

Action on contract. Before Judge Reid. City court of At-, lanta. March 19, 1904. On January 6, 1902, Charles H. Behre made an affidavit that Charles Lippincott & Company and the American Soda Eountaiu Company were indebted to him $3,614.13 on an account, and that the defendants resided out of the State. An attachment issued thereon, garnishments were served, and the defendants gave bond.

<p>Action for damages. Before Judge Reid. City court of Atlanta. November 28, 1903.</p> <p>Wallace & Company sued the Georgia Railway and Electric Company for damages to a landau, a pair of horses, and harness. For the plaintiffs it appeared, that' the company ran two cars very rapidly along the road from East Point to Atlanta, one immediately following the other; that the first car had a headlight, and its gong was rung; that on the second car there was no headlight, and no gong was rung, and that after the first car passed, the driver of the landau turned to the right in order to let a wagon pass, and just as he got on the track, he was hit by the second car. It was claimed that he did not hear it; that the absence of the headlight and the failure to ring the gong was the cause of the driver being ignorant of its approach. For the defendant there were several witnesses who testified, that the driver was drunk; that there was no wagon approaching; that there was no necessity for turning to the right; that the car was running at the usual speed, and that the injury was occasioned by the driver suddenly turning to the right, and that when the car was so close upon the carriage it was impossible to stop. It appears, that the defendant company paid the driver $25 in settlement of any claim he might have for personal injuries received at the timS of the collision. While the driver was on the stand, the plaintiff asked him if he had been settled with, and he replied that the defendant paid him $25. The defendant objected to this evidence, and the court promptly excluded it. The defendant moved for a mistrial. The motion was overruled, and the company excepted. The court instructed the jury that the compromise was no evidence of liability, and that the jury would disregard it. But the defendant insists that after such evidence had been once admitted it was impossible to remove the effect thereof from the minds of the jury. While the driver was on the stand the company laid the foundation for his impeachment, and introduced an affidavit signed by him eight days after the collision, in which he admitted that he was drunk and was reckless in his driving, and that the company was free from fault. In rebuttal, the driver denied the execution of such an affidavit, and, over the objection of the defendant that the same was irrelevant, was allowed to testify that he signed no paper in connection with the collision, except a receipt for $25, which was paid him by the defendant. To this the defendant excepted. In its charge the court instructed the jury that the receipt was only-;to be considered in its character as impeaching testimony. The receipt, among other things, contained a statement that the payment of $25 is not to be construed as an admission on the part of the company of any liability whatever in consequence of such action. It was dated October 10, 1902. The affidavit admitting that the driver was drunk, that he pulled the team directly in front of the street-car, and on account oE the closeness to the car the motorman could not stop before striking him, was ddted October 8, 1902.</p> <p>There was evidence that the landau when new cost a thousand dollars; that the plaintiffs bought it at second hand for. $200 ; that they paid $70 for one horse, and about $200 in a trade for the other; that the horses were in good shape, and were easily worth $300. The horses were hurt fifty ^er cent. Both horses were of about the same value before injury. For hiring they were worth from a dollar to three dollars a day, " ought to make a dollar and a half apiecé a day, or a dollar, anywhere from a dollar to three dollars.” The harness was worth fifty to seventy-five dollars; it was damaged fifteen to twenty per cent, after being repaired. It cost in the neighborhood of $200 to repair the landau. It was worth anywhere from five to seven hundred dollars. After being repaired it was still worth about thirty per cent. less. The petition averred that the landau was reasonably worth $800, and was rendered entirely valueless by the collision; that the harness was worth $150, and had been rendered wholly valueless; that the horses were reasonably worth $450, and were rendered entirely useless for life. Taking the evidence most favorably for the plaintiffs the damage was as follows:</p> <p>Fifty per cent, damage to the horses......$150 00</p> <p>Loss of hire of horses............ 240 00</p> <p>Repair to landau (worth $700)........ 200 00</p> <p>Thirty per cent, depreciation, notwithstanding repair 210 00 Twenty per cent, damage to harness...... 15 00</p> <p>$815 00</p> <p>Taking the evidence most unfavorably to the plaintiffs the damage was:</p> <p>Fifty per cent, damage to horses........$150 00</p> <p>Loss of hire of horses.......... . 240 00</p> <p>Repair of carriage (worth $500)........ 200 00</p> <p>Thirty per cent, of $500, notwithstanding repair . 150 00</p> <p>Fifteen per cent, of $50, harness....... 7 50</p> <p>$747 50</p> <p>By an amendment the plaintiffs alleged, that both horses were rendered useless for a period of four, months; that each was worth to the plaintiffs at the time of injury a dollar a day ; that on account of. the injuries the plaintiffs had been damaged, by the loss of their services, $240; and that they are not and will never be worth what they were worth prior to the injury, by at least one half. This amendment was demurred to on the ground that it set up an improper and illegal measure of damages, and that the evidence already offered showed that the total value, of both was only $300; that they had been injured 50 per cent.; and that to be allowed to recover the damages claimed in the amendment would enable the plaintiffs to get more than the horses were worth before they were injured. The amendment was allowed, and the plaintiffs offered evidence in support thereof. Error, is assigned because the court charged, “In addition to the actual injury to the property, the plaintiffs allege that during a period of four months they were engaged-in an effort to cure the horses and restore them to soundness, and that during that period they ■actually lost a dollar a day, the total sum being $240. You will look to the evidence and ascertain what the truth is in regard to that specificatian of damages; if it is sustained by the evidence, it would be a legitimate item to be allowed in their favor.” The jury found a verdict for the plaintiffs for $422.81.</p>

<p>1. The trustee in. bankruptcy of an insolvent corporation may sue for the recovery of an unpaid subscription for the capital stock, not only where the subscription is payable in cash, but also where it is expressly made payable in specifics fraudulently overvalued.</p> <p>2. A subscription to stock, made payable in specifics worth not more than ten per cent, of the face of the shares, is a legal fraud upon subsequent creditors of the corporation, who have the right .to look to the authorized capital stock as a trust fund for the payment of their debts. '</p> <p>3. A transferee who takes such shares with knowledge that they have been im, properly issued as fully paid up becomes liable for the unpaid subscription.</p> <p>4. The order of the bankrupt court directing the trustee to bring suit for the recovery of the unpaid subscriptions was sufficiently in the nature of a call or assessment to perfect the cause of action, and to authorize the maintenance of the suit against the stockholders as for unpaid subscription.</p> <p>5. The demurrer to the petition was properly overruled.</p>

Action for damages. Before Judge Daley. Bulloch superior court. April 26, 1904.

The Farmers and Traders Bank applied to the Supreme Court for mandamus to compel the judge of the city court of Columbus to certify a bill of exceptions. The following facts appeared from the petition: The judgment complained of in the bill of exceptions was rendered December 16, 1904. The bank instructed its attorney, Edgar D. Burts, to sue out a bill of exceptions. He became seriously ill on December 24, and was never able to attend to business thereafter.

<p>Indictment for murder. Before Judge Ereeman. Heard superior court. January 14, 1905.</p>

<p>Indictment for riot. Before Judge Hodges. City court of Hartwell. January 16, 1905.</p>

<p>Indictment for misdemeanor. Before Judge Crisp. City court of Americus. February 11, 1905.</p> <p>A special presentment against Henry Brown charged that on December 7, 1904, he did wilfully and voluntarily abandon his two minor children, aged 10 and 8 years respectively, leaving them in a dependent and destitute condition. From the evidence it appeared, that Brown left his wife and children about a year or two before, but would come back to see them occasionally. After he left them his wife worked and supported them for a while. She owned no property. He never brought anything for them to eat or wear after he left. Occasionally the children picked cotton during cotton-picking time. The defendant left these children in June, 1904, and the next day his wife was taken sick, and was not afterwards able to do anything. She died in December, 1904. After the. defendant left them the •children lived with their mother. They were frequently hungry and begged food from the neighbors, and the neighbors often gave them food. Their uncle by marriage gave them food and clothing, whenever they came to him and asked for assistance. Aféer their mother’s death they lived with him. He testified that he told the defendant that “it was not right for him to do that way,” and that “he ought to support his family.” In his statement the ■defendant said that he and his wife had trouble and he left home, ■a year or so before; that he used to go to see his family now and then, and would always take some money, and that he sent them ■food. The jury found him guilty. Error is assigned: (1) Because the court charged, “ If you believe the defendant wilfully and voluntarily abandoned his minor children, leaving them with his wife who was sick and consequently unable to support them, and that there was no one who had charge of the children, caring for them, and they were dependent upon the neighbors and charity for food and clothing, that would in law be a destitute and dependent condition, and the defendant would be ■guilty.” (2) Because the court refused to charge that “ in order to convict the defendant, it must appear that he wilfully and voluntarily abandoned the children, leaving them in a dependent and destitute condition at the time of the abandonment/’ and instead thereof instructed the jury that “ if the defendant wilfully and voluntarily abandoned his children, and after said abandonment the children became in a dependent and destitute condition, and the defendant continued to wilfully and voluntarily abandon said children, leaving them dependent and destitute, and refused to-support them, he would be guilty.”</p>

<p>Conviction of manslaughter. Before Judge Spence. Dougherty superior court. January 16, 1905.</p>

<p>Habeas corpus. Before Judge Freeman. Coweta superior court. February 3, 1905.</p>

<p>Habeas corpus. Before Judge Beid. City court of Atlanta. .December 17, 1904.</p>

<p>Indictment for assault with intent to murder. Before Judge Reagan. Spalding superior court. February 8, 1905.</p>

<p>Indictment for murder. Before Judge Henry. Floyd superior court. February 17, 1905.</p>

<p>Petition for certiorari. Before Judge Mitchell. Berrien superior court. January 20, 1905.</p>

<p>Indictment for forgery. Before Judge Felton. Bibb superior court. February 25, 1905.</p>

<p>Certiorari. Before Judge Hammond. Richmond superior court. November 25, 1904.</p>

Trover. Before Judge Eve. Richmond superior court. December 29, 1904 Pope & Fleming, commission merchants, brought bail-trover for 64 bales of cotton, of the value of $3,500, against the Charleston and Western Carolina Railway Company.

<p>On the interlocutory hearing the issue was not so much the validity of the plaintiffs’ title as the fact of their possession. On that point the evidence was conflicting, but sufficient to sustain the finding that the defendant was not an intruder, but the successor of another tenant of one claiming a title adverse to that of the plaintiff; and this court will not interfere with the finding of the chancellor on such disputed facts.</p>

<p>Playing pool under an agreement among the players that the one losing the .game shall pay for the use of the table is betting at a pool-table within the meaning of the Penal Code, §401, providing that “If any person shall . . bet . . at any . . pool-table, he shall be guilty of a misdemeanor.” The fact that the State imposes a specific tax on the keeper of a pool-table does not affect the question.</p>

Indictment for larceny. Before Judge Crisp. City court of .Amerieus. February 7, 1905.

Certiorari. Before Judge Littlejohn. Stewart superior court. January 30, 1905. At chambers, January 2,1905, Judge Littlejohn, of the Southwestern circuit, sanctioned a petition for certiorari, and ordered the writ to issue, returnable before him on January 14 On January 4, the writ did issue, requiring the judge of the county court to certify the proceeding to the April term of the superior court of Stewart county.

<p>1. The plaintiff’s petition, properly construed, set forth but two causes of action, one, based upon a quantum meruit, for the value of services rendered by him, during a given period, to the defendant’s testator; the other for the breach of a contract made by the plaintiff’s father with such testator, for the plaintiff’s benefit.</p> <p>2. An allegation that the plaintiff lived with the defendant’s testator “ a long period of time after he became of age and worked for him without compensation, with the understanding and by the promise and contract of the deceased that he would provide by will or otherwise that petitioner should have one half of his estate,” if intended to set forth a contract between the plaintiff and such testator, is too vague and indefinite to withstand a demurrer upon the ground that it fails to set forth what the terms of the contract were.</p> <p>3. A count in a petition upon a quantum meruit, for the value of the plaintiff’s services from one given date to another, is barred by the statute of limitations when it appears that more than four years elapsed after the termination of the services before the suit was brought, and that the plaintiff during all of this time was sui juris.</p> <p>4. Where A made a contract with B, by the terms of which C, the minor son of A, was, from a given date until he became of age, to live with and “be a faithful hand and servant ” to B, and, if he did so, B “ would provide by will or otherwise for” C “to have one half of his entire estate” at his death, and C did, from such time until he attained his majority, live with B and faithfully perform the services contemplated, hut B died without having complied with his part of the contract, C had no right of action thereon against the representative of B’s estate.</p>

Acbiou for damages. Before Judge Daley. Washington superior court. September 7, 1904.

<p>Complaint. Before Judge Taliaferro. City court of Sanders-ville.. ■ December 15, 1904.</p>

<p>1. The charge of the trial judge respecting the measure of damages was in accord with what was decided when this case was before this court on a former occasion.</p> <p>2. Before attorney’s fees can be recovered on a note executed since the passage of the act of 1900 (Van Epps’ Code Supp. §6185), it must be alleged in the pleadings that the statutory notice has been given ; and such allegation, if denied, must be proved on the trial. Because of the failure of the plaintiff to give this notice, the recovery of attorney’s fees was unauthorized. Leave is given the plaintiff to write off the attorney’s fees within ten. ■ days after the filing of the remittitur in the court below; and upon his doing so, the judgment will be affirmed, otherwise a new trial is ordered.</p>

<p>Complaint. Before Judge Taliaferro. ’ City court of Sanders-ville. January 25, 1905.</p>

<p>1. A stipulation in a policy of insurance that “ no suit shall be brought against the company after one year from the date of the death of the insured” is valid. The time is reasonable ; and the insured having assented to the stipulation by accepting the policy, his administratrix will be bound by it.</p> <p>2. Before the insurance company will be estopped from pleading the contractual limitation in bar to a suit on the policy, it must appear that the conduct of the company prevented the bringing of the suit-within the stipulated time. Where it appears that the company denied liability eight months before the expiration of the year -in which the action was to be brought, and did nothing after its denial of liability to deter the plaintiff from instituting suit, a failure to sue within the contract time is a bar to a recovery.</p>

<p>Action for damages. Before Judge Hammond. Richmond superior court. November 8, 1904.</p>

<p>1. Where A contracted with B for the purchase of a lot of land and paid the first instalment, and C, at A’s request, paid the balance of the purchase-money, and B, by A’s direction, made C an absolute fee-simple deed to the land, it being agreed between C and A that C should hold the title as security for the payment by A to C of the sum paid by C, C got a good title subject to be divested only by the payment of the debt thus secured.</p> <p>2. When C died leaving A in possession of the land, the title descended to C’s heirs, and they can recover in an action of ejectment in their own names if it appears that there is no administrator of C’s estate, or if there be one and he consents to their bringing the suit. In this case there was no administrator at the time of the commencement of the action who could maintain an action for the recovery of the land. A temporary administrator can not maintain such an aAion.</p> <p>3. In the trial of such a suit the fact that C’s debt against A for the balance of the purchase-money was barred by the statute of limitations would make no difference, as the action was not predicated upon the debt, but upon the right to recover the land under C’s title. Nor was the action by the heirs of C a stale demand, as there is no law in this State which prevents the true owner of land who has the legal title from bringing a suit for its recovery at any time.</p> <p>4. Under the facts above enumerated, A’s possession, and after his death the possession of his heirs, was permissive; and no prescription can be based on such possession, although eighteen years had elapsed from the time of the advancement of the money by C until the commencement of the action by his heirs.</p> <p>5. In a joint action by the heirs of C it was not error to allow them to strike the name of the temporary administrator as one of the plaintiffs. He had’ no title or interest in the suit as such temporary administrator, and could not have instituted it for the recovery of the land. Naming him as a coplaintiff amounted to a misjoinder of parties, and the other plaintiffs had a right, on their own motion, to have his name stricken.</p>

<p>Aqtion on bond. Before Judge Norwood. City court of Savannah. December 12, 1904.</p> <p>McAlpin, as ordinary, brought suit on a county administrator’s bond, for the use of Wade as administrator of the estate of Porter, against Fripp as principal, and Bailey and Harrison as sureties, alleging that in 1901 Fripp was county administrator and as such gave bond as required by law, with Bailey and Harrison as.sureties; that in 1902 Fripp was, by virtue o£ his office as county administrator, vested with the administration of Porter’s estate, and took possession of the assets of the estate; that on June 9, 1903, the resignation of Fripp as county administrator was accepted by the ordinary, and Wade appointed in his stead, and on October 8, 1903, Fripp’s letters of administration on the estate of Porter were revoked, and Wade was appointed in his place; that the amount .due the estate of Porter by Fripp, at the time of revocation of his letters of administration and the appointment of Wade, was $203.29; that Wade as administrator of the estate of Porter demanded of Fripp this sum, which Fripp failed to pay, admitting that he did not then have it or any part thereof. A copy of Fripp’s bond as county administrator and of his returns upon the estate of Porter, showing the amount due the estate in his hands to be the sum referred to, were attached to the petition as exhibits. Fripp and the sureties were each duly served. Fripp filed no answer. Harrison appeared and filed a written motion to quash the suit, on the ground that five separate and distinct suits had been brought on the bond of Fripp as administrator, when all of the claims against him in that capacity should have been united in one suit. This motion was overruled. Bailey and Harrison filed a demurrer to the petition, upon various grounds, but at the hearing insisted on only three of them; these three being that the petition failed to show when and how McAlpin became ordinary, and did not set forth his commission and qualification thereunder; that the petition did not show that Fripp had ever been called to account by the ordinary, and adjudged to be in default as administrator; and that there was no allegation that Fripp had been sued to judgment and had failed to respond thereto. The demurrer was overruled. Harrison and Bailey filed an answer, in which they admitted that they signed the bond sued on, but averred that they could neither admit nor deny the other allegations in the petition, for want of information. They offered an amendment to their answer, in which it was alleged that McAlpin had instituted suit against Fripp as principal, and Bailey and Harrison as sureties, upon the county administrator’s bond, for the use of Wade as administrator of the estate of Brailsforcj, and had recovered a judgment thereon for $183.03; and that this judgment was a bar to any further suit upon the bond. The court refused to allow the amendment. The plaintiff introduced testimony tending to establish the allegations of the petition, and the defendants introduced no testimony. The court directed a verdict in favor of the plaintiff for the amount sued for. Bailey and Harrison made a motion for a new trial, upon various grounds, which was overruled. They excepted to this ruling and to the other rulings referred to.</p>

<p>Petition for injunction. Before Judge Daley. Screven superior court. December 14, 1904.</p> <p>The petition was by a citizen and taxpayer of Screven county, for an injunction to prevent the county treasurer from paying county funds to Overstreet as judge and to others as officers and jurors, under the act of December 15, 1902, entitled “ An act to establish the city court of Sylvania,” etc. (Acts 1902, p. 162); the petition alleging that the act is unconstitutional and void, for the following reasons: (a) At the time of its final reading and passage there was no City of Sylvania, and therefore no constitu-. tional city court could have been established by the act. (6) The purpose of the legislature in passing the act was to establish a constitutional city court, and not a court of any other class or character. (c) The act approved December 10, 1902, entitled “An act to incorporate the Town of Sylvania as the City of Sylvania,” etc. (Acts 1902, p. 626), did not establish a City of Sylvania, but operated only upon the then existing Town of Sylvania, and preserved its entity. (d) The two acts above mentioned (except for the first reading in the House when both were introduced, when the last-mentioned act was first read, two days before the first reading of the first-mentioned act) were read in both houses on identical days, and were finally passed on the same day, and were transmitted to the Governor for approval at the same time; and for this reason there was no City of Sylvania at the time of the passage of the act whose purpose was to establish the city court of Sylvania. (e) The General Assembly, a few days before the introduction of the city-court bill, had evinced its deliberate intention to rid the county of Screven of a court of the class and character of the court which would result from the failure of its purpose to establish a constitutional city court, and therefore no such court of lesser dignity was established or intended to be established, failing the accomplishment of the General Assembly’s aim to establish the court of higher dignity. (Acts 1902, p. 199.) At the hearing there was introduced in evidence a duly certified transcript from the office of the secretary of State, showing the dates on which the acts referred to were read in' the General Assembly, and the dates on which they were finally passed. An injunction was refused.</p> <p>cited the acts referred to in the petition, and Ga. Rep. 112/169; 115/821,831.</p> <p>cited Acts 1903, p. 167; Ga. R. 115/213, 820-1; 113/444 (1); 103/701 (1-2); 114/794 (5), 871 (1); 107/690 (1); 119/539 (4); 72/246 (2a); 85/1; 98/811-12; 101/537; 70/721 (2); Civil Code, §§ 5819-20; 26 A. & E. Ene. L. (2d ed.) 548 (14b).</p>

<p>Complaint; for land. Before Judge Hammond. Richmond superior court. October 27, 1904.</p>

Motion to arrest judgment. Before Judge Hammond. Richmond superior court. November 12, 1904. The attachment affidavit was against W. 0. Jones. The attachment bond was made payable to W. 0. Jones. The writ of attachment was against Jones Brothers. The return of this writ shows that garnishment thereunder was served upon the Union Compress Company. The garnishee failed to answer.

<p>1. Where on the trial of an equity case a verdict is directed by the judge, and no motion for a new trial is made, and there is nothing in the hill of exceptions or the transcript of the record properly calling in.question the correctness of the verdict directed, this court will not consider assignments of error to a decree of the trial court based on the verdict and substantially following it.</p> <p>2. Giving the verdict a reasonable intendment, and construing it in the light of the pleadings, there was no material variance between it and the decree.</p>

<p>Appeal. Before Judge Hammond. Richmond superior court. December 12, 1904.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. January 21, 1905.</p>

<p>Certiorari. Before Judge Cann. Chatham superior court. December 10, 1904.</p>

<p>Garnishment. Before Judge Norwood. City court of Savannah. December 16, 1904.</p> <p>Collins, Grayson & Company began suit by attachment against E. F. BlackEord as a non-resident. Summons of garnishment was served upon the Savannah, Florida and Western Railway Company. It answered that it was not indebted, and had no money, property, or effects in its possession belonging to Blackford. The answer was traversed. The case was submitted to the judge without the intervention of a jury, and upon an agreed statement of facts, from which it appeared, that on October 3, 1900, E. F. Blackford shipped from Adams Basin, New York, a car-load of apples by rail to Savannah, Georgia, and received from the initial carrier, the New York Central and Hudson River Railroad Company, a through bill of lading which stated that the apples were shipped to Savannah, Georgia, consigned to the “ order of E. F. Blackford, notify Collins, Grayson & Company.” The apples were transported to Savannah, Georgia, by the Pennsylvania Railroad Company and other railroad companies, upon a through rate charge made by the initial carrier. The apples were brought to Savannah by the garnishee, which was the last carrier, and by it delivered to the plaintiffs, upon their request, not upon the order of Blackford and not upon the surrender of the bill of lading, but upon the giving of a bond by the plaintiffs to the garnishee, wherein they covenanted to hold it harmless from any loss or damage accruing to it by reason of the delivery of the apples to them without the order of Blackford and without the surrender of the bill of lading. The original bill of lading, properly indorsed by Blackford to the order of the plaintiffs, with a draft of Blackford upon the plaintiffs for $113.36, the value of the apples, was presented to the plaintiffs by a bank in Savannah, and, the draft being unpaid, the bill of lading and the draft were returned to Blackford, who thereupon made claim in New York upon the Pennsylvania Railroad Company for $113.36, the value of the apples, claiming that this value had been lost to him by reason of the delivery by the garnishee to the plaintiffs without his order and without the surrender of the bill of lading. The Pennsylvania Railroad Company in turn made claim on the garnishee company, and this company thereupon notified the plaintiffs thereof, and required them to indemnify it against loss, as stipulated in the bond. The plaintiffs then paid to the garnishee $113.36, and it returned the bond to the plaintiffs. Immediately after this payment was made the summons of garnishment was issued. On September 3, 1901, Blackford brought suit, in New York, against the Pennsylvania Railroad Company, for the value of the apples, $113.36, besides interest and cost. The defendant to that suit advised the garnishee in the present case that suit had been brought against it, and in June, 1902, the present garnishee paid to the Pennsylvania Company $113.36 as the value of the apples, and $16.50 as court costs, for which the Pennsylvania Company was liable on account of the suit against it.</p> <p>The bill of lading provided that no carrier should be liable for loss or damages not occurring on its own line, and that if the word “ order ” were written thereon immediately before or after the name of the party to whose order the property was consigned, the surrender of the bill of lading properly indorsed should be required by the deliverer of property at destination. The plaintiffs introduced evidence to the effect that under the laws of New York, “in the absence of fraud, concealment, or improper practice, the party receiving a bill of lading is presumed to have assented to all its stipulations, not unusual and unreasonable, limiting its common-law liability as a carrier.” On the bill of lading it appeared that the goods were routed “ via. A. C. D. and Central Ry. of Ga.” The garnishee was not named on the bill of lading as one of the connecting carriers. It does not appear how the car came into its possession. The judge found in favor of the garnishee and against the traverse. The plaintiffs excepted.</p>

<p>1. The tort may be waived and the aggrieved party may sue in assumpsit where there has been a sale of the property converted, the action being one for money had and received to the plaintiff’s use.</p> <p>2. But where the pleadings do not show that the property has been converted into money, and the suit is to recover the value of the property, the action is ex delicto and not ex contractu.</p> <p>3. A justice’s court has no jurisdiction to entertain an action to recover property, or its value, which has been- wrongfully converted.</p> <p>4. The court where the case originated being without jurisdiction to try it, no appeal could properly be taken from the judgment rendered in that court, and all proceedings thereunder were void.</p>

<p>Complaint. Before Judge Cann. Chatham superior court. December 6, 1904.-</p>

Action for damages. Before Judge Cann. Chatham superior court. February 1, 1905. The action was for the homicide of the plaintiff’s husband, which was alleged to have been caused by the derailment of a train on the defendant’s railway in the State of Florida, on which he was employed as a locomotive engineer.

<p>Complaint. Before Judge Cann. Chatham superior court. March 5, 1904.</p>

<p>Equitable petition. Before Judge Cann. Chatham superior court. January 3, 1905.</p>

<p>1. One who buys land from another who purchased the same at a tax sale, and subsequently brings an action to recover it from a third person in possession, is not, in the event he fails to recover in such suit, entitled, either at law or in equity, to a lien upon the property for the amount of the purchase-price which he paid to the original holder of the tax title, even though the tax execution may have been a lien upon the land</p> <p>2. A purchaser of land at a tax sale stands in no better position, relatively to the rights of a subsequent purchaser at a judicial sale, than if he had bought from the landowner; and if he fails to file his deed for record until after one without notice of his title has purchased the property at a valid sheriff’s sale and duly recorded the sheriff’s deed, he loses whatever title he may have acquired at the tax sale.</p> <p>3. The transferee of a note the payment of which is, conformably to the provisions of the Civil Code, secured by a deed, can, after he has reduced the note to judgment, obtain a special lien on the land by having the holder of the legal title conveyed by the security deed to execute, file, and have recorded a reconveyance of the title to the judgment debtor, for the purpose, expressed in the deed of reconveyance, of having the land levied on and sold under the execution issuing from such judgment, and then levying his execution thereon.</p>

<p>It affirmatively appearing that, even if the judgment complained of were reversed, the plaintiff in error would not be benefited thereby, the writ of error is dismissed without prejudice to any of his rights..</p>

<p>Complaint. Before Judge Norwood. City court of Savannah. August 27,1904.</p>

<p>Action for damages. Before Judge Bower. City court of Bainbridge. August 4, 1904.</p>

Interpleader. Before Judge Lumpkin. Fulton superior court. April 8, 1904. This case arose on a petition filed by the Mutual Life Insurance Company of New York, praying leave to pay into court the sum of $170, and for an order requiring the Atlanta Savings Bank, O. Downing, and Jacob L. Beach to interplead and have adjudicated their respective claims to this fund.

Action for damages. Before Judge Reid. City court of Atlanta. May 28, 1904. The petition' alleged, in substance: On July 15, 1903, the defendant was engaged in the manufacture and sale of bottled coca cola. On that date-the plaintiff, who was a grocery merchant, bought from an agent of the defendant a case of bottled coca cola, to be resold at the grocery store.

<p>Action on contract. Before Judge Reid. City court of Atlanta. June 29, 1904.</p> <p>The Pullman Company began suit by attachment against the Raleigh and Gaston Railroad Company and the Seaboard and Roanoke Railroad Company, as lessees of the Georgia, Carolina and Northern Railway Company, both of the defendants being alleged to be foreign corporations. The allegations of the declaration were, in substance, as follows: On May 20, 1902, the defendant executed a contract as follows: “ The Pullman Company to keep the cars furnished us under the agreement in good order and repair, except repairs and renewals hereinafter provided for, and such as are made necessary by accident or casualty, it being understood that the railroad company shall repair all damages to said cars of every kind occasioned by accident or casualty during the continuance of this agreement.” Under this contract it was the duty of the defendants to repair all damages of every kind occasioned by accident or casualty to cars furnished the defendants by the plaintiff during the continuance of the agreement. The contract was of force on July 14, 1896, on or before which date the plaintiff furnished the defendants the sleeping-car' Emison, which was on that date operated by the defendants in Pulton county. This car was seriously damaged by a collision of a train of the defendants, to which it was attached, with a gravel train of the Western and Atlantic Railroad Company. The extent and cost of' the repairs necessary to be made on the car by reason of the collision were set forth. Immediately after the damage to the car the plaintiff called on the defendants to repair the damage, but they failed and refused to do so, although the repairs could and should have been made by September 14, 1896. Damages are claimed in the sum of $6,868.47, with interest from September 14, 1896. On November 7, 1899, .the plaintiff furnished the defendants the sleeping-car Charmion, under the contract above mentioned. This car was damaged in Fulton county while .in possession of the defendants, by striking a wagon. The amount of this damage was $11.35, and the defendants failed and refused to make the necessary repairs, although they should have been made by December 7. The plaintiff asks to recover this sum, with interest from December 7, 1899. The petition was. filed and service acknowledged on September 21, 1901, and the attachment was issued on July 10, 1901. On July 11, 1901, the defendants, by their attorneys, entered into a written agreement, under which the necessity of levying the attachment was dispensed with.</p> <p>The defendants demurred on the grounds, that it appears upon the face of the petition that the first claim of damage is barred by the statute of limitations; that the alleged contract is not sufficiently set forth; that it does not appear of what the damages, or the expense of repairs, or the work done, consisted; and that it appears from the petition that the court has no jurisdiction of the other items. In response to the special demurrer, the defendants amended and set forth two letters as constituting the contract relied on. The first of these was as follows :</p> <p>“Philadelphia, Pa., May 10th, 1892.</p> <p>“ Subject: Agreement for operation of Pullman cars.</p> <p>“Mr. O. Y. Smith, Traffic Manager, Seaboard Air-Line, Norfolk, Ya.</p> <p>“Dear Sir: — Referring to the matter of the temporary agreement for the operation of the Portsmouth and Atlanta Line, I would ask if it will be satisfactory for you to .operate this line, or any other lines you may desire started, under the following agreement: 1st. The Pullman Company to keep the cars furnished under this agreement in good order and repair, except repairs and renewals hereinafter provided for, and such as are made necessary by accident and casualty; it being understood that the Railroad Company shall repair all damages to said cars, of every kind, occasioned by accident or casualty, during the continuance of this agreement.”</p> <p>There were provisions in the letter relating to the compensation the “ Seaboard Air-Line ” was to pay, and to other matters, which need not be stated here. The letter was signed: “ James Martin, Sup’t.” The other letter was as follows:</p> <p>“Raleigh, N. C., May 20th, 1892.</p> <p>“ James Martin, Esq., Superintendent Pullman Palace Car Company, Girard Building, Philadelphia, Pa.</p> <p>“Dear Sir: — Your favor of the 10th, to Mr. O. Y. Smith, Traffic Manager, on the subject of agreement for the operation of Pullman cars, has been forwarded to me. The agreement as therein stated meets with my approval. ■</p> <p>Yours truly, Jno. C. Winder, General Manager.”</p> <p>An itemized statement of the damage and the repairs was also set forth. The amendment alleged that James Martin was superintendent of che plaintiff, and that “ John G. Winder was General Manager of defendant.” The defendants then renewed their demurrer relating to the jurisdiction and the statute of limitations; and added grounds of demurrer that no cause of action was set forth; and that the petition does not show what authority, if any, James Martin on the part of the plaintiff, and John 0. Winder on the part of the defendants, had to enter into the alleged contract. The defendants answered, admitting that they were lessees of the Georgia, Carolina and Northern Railway Company, and admitting the allegations in reference to the agreement entered into by their attorneys to avoid a levy of the attachment, and denying the other material allegations in the original petition. In answer to the amendment to the declaration, it was averred that neither James Martin nor John C. Winder had authority, to enter into the contract sued on. In reference to that paragraph in the amendment which alleged that John C. Winder was general manager of the defendants, it was alleged that “for want of sufficient information, it can neither admit nor deny the averments ” in that paragraph. The court overruled the demurrers, and the defendants excepted pendente lite. The ease was tried, and-a verdict was rendered in favor of the plaintiff for a stated amount. After requiring the plaintiff to write off a certain sum from the verdict, the court overruled the defendants’ motion for a new trial. They excepted.</p>

<p>Where, by a written contract, a railroad company gave to the other party to the contract the right to maintain a warehouse on its right of way, the tenant agreeing on his part to “ save and hold harmless the company, its successors and assigns, from all damage, injury, or liability that may .arise from the destruction or injury of any building, improvement, or personal property of any description, by fire, or from any other cause whatever, whether the same should he attributable to the negligence of the employees of said company or not, where such damage, injury, or liability is caused or increased by reason of the use of the premises hereunder,” the company was not liable to the tenant for the destruction of the warehouse by'fire presumably communicated from ‘one of its trains, it being neither alleged nor proved that the communication of the fire to the warehouse was caused by the gross negligence of the company.</p>

<p>Exceptions to auditor’s report. Before Judge Reagan. Monioe superior court. May 25, 1904.</p>

<p>Indictment for murder. Before Judge Lewis. Baldwin superior court. January 31, 1905.</p>

<p>Accusation of gaming. Before Judge Burch. City court of Dublin. February 13, 1905.</p> <p>The case was tried at the December quarterly term of the city court of Dublin. The accused were found guilty, and made a motion for a new trial. An order was passed during the term, requiring the respondent to show cause, on January 9, 1905, why the motion should not be granted. The order provided that a brief of the evidence should be presented for approval on or before' that date, or in default thereof the motion would be dismissed, but that the time for hearing the motion and presenting the brief of evidence might be extended for good cause shown. On January 9 an order was passed, reciting that the official stenographer had not written out the evidence, and continuing the hearing of the motion and extending the time for approval of the brief of evidence until January 23. On January 23 a further continuance of the mótion and an extension of the time for presenting a brief of the evidence for approval were granted, for the same reason, until February 10. On February 10 a further continuance and extension were granted, for the same reason, until February 13. On February 13 a motion was made for a further continuance, because of the failure of the stenographer to write out the evidence. The judge overruled this motion, and sustained a motion made by the solicitor to dismiss the motion for a new trial on accoúnt of the failure of the movants to present for approval a brief of the evidence. Error is assigned npon the dismissal of the motion. It is contended that the judge had no jurisdiction of the motion in vacation, but that it went over by operation of law to the- next term; and that if he did have jurisdiction, it was an abuse of discretion to dismiss the motion.</p>

<p>Iudictment for riot. Before Judge Burch. City court of Dublin. March 7, 1905.</p>

<p>Petition for certiorari. Before Judge Mitchell. Berrien superior court. February 20, 1905.</p> <p>Johns excepted to the refusal to sanction a petition for certiorari, by which he sought to review a judgment of the Mayor and Council of the City of Tifton, alleged to have been rendered against him in a case in which he was charged with the violation of a municipal ordinance. No mention of a bond is made in the petition or in the bill of exceptions; but the judge, in his certificate to-the bill of exceptions, directs the clerk of the superior court to transmit with it a “ copy of certiorari bond.” With the bill of exceptions is what appears to be a copy of a certiorari bond in the case referred to. The bond is “for the payment of the eventual condemnation-money, together with all costs.”</p>

Indictment for seduction. Before Judge Reagan. Butts superior court. February term, 1905. The accused filed a plea in abatement, on the ground that the names of two of the grand jurors who returned the bill of indictment were not on the grand-jury list at the time the indictment was found.

<p>Indictment for simple larceny. Before Judge Bartlett. Douglas-superior court. February 3, 1905.</p>

<p>1. ' In a case where the evidence relied on by the State for a conviction tends to show that the accused committed murder, whereas the statement o£ the accused and the evidence introduced in his behalf sustain- his defense of justifiable homicide, it is error for the court to give in charge to the jury the law relating to voluntary manslaughter, and a verdict finding the’ accused guilty of that offense can not be upheld.</p> <p>2. There is no merit in the complaint that the charge on the subject of reasonable doubt was not sufficiently comprehensive.</p>

<p>Certiorari. Before Judge Lewis. Morgan superior court March 15, 1905.</p>

<p>Certiorari. Before Judge Lewis. Morgan superior court. March 15, 1905.</p>

<p>Indictment for .selling liquor. Before Judge Burch. City court of Dublin. March 18, 1905.</p>

<p>Accusations of gaming. Before Judge Hammond. City court of Griffin. March 1, 1905/</p>

Injunction. Before Judge Hammond. Richmond superior court. April 1, 1905. An information was filed in behalf of the State by the solicitor-general of the Augusta circuit, upon the petition of named parties complaining of the City Council of Augusta add of John D. Twiggs Jr., as captain of the Oglethorpe Infantry, a company of the State militia.

<p>Certiorari. Before Judge Felton. Crawford superior court. October term, 1904.</p> <p>John H. Bowers made affidavit before a justice of the peace for the purpose of obtaining a possessory warrant against W. H. Visage as a cropper, under'the Civil Code, §3130, alleging that certain corn, fodder, and hay were the products of his farm cultivated by Visage as a cropper for the year 1903, and that the defendant was seeking to take possession thereof, and attempting to exclude the landlord from the possession of such crops, though having failed to pay for supplies and advances made by plaintiff to raise the crop. A warrant was issued, the defendant arrested, and the property seized. On the hearing the evidence for the plaintiff tended to show, that there had been no final division of the crops, but that the corn, fodder, and hay had been divided and placed in separate houses on the plaintiff’s property, called the houses of plaintiff and defendant, but belonging to the former, with the understanding that the same should be kept there until a final settlement, and that the defendant could not move the products off the premises until the supplies were paid for in full, the sum of $25 being due the plaintiff. The evidence for the defendant tended to show that there had been a complete division between him and his landlord. Counsel for the defendant moved to dismiss the warrant, on the ground “that it was not [the] proper course to pursue, and the affidavit was not definite.” The motion was overruled, and the magistrate awarded the property to the plaintiff upon giving bond. The defendant sued out a writ of certiorari, and to an adverse decision of the superior court filed a bill of exceptions.</p>

<p>1. Where a deed executed in 1891 conveyed to a man, as trustee for his wife and their children, certain real estate, only such children as were then in life took any interest under the conveyance, and after-born children took nothing thereunder.</p> <p>2. Permission having been asked to review the former rulings of the court on this subject, upon consideration they are affirmed.</p> <p>3. That real estate can be conveyed in trust in such terms as will operate to admit after-born children does not alter the general rule of construction where, as in this case, there is no such provision.</p> <p>4. Where a deed was made and delivered in 1891, conveying to a husband, as trustee for his wife and their children, certain real estate, the fact that it provided that the grantee “ as trustee as aforesaid ” should have full power and authority during his. life time to mortgage the property, and to use, control, and dispose of the rents, issues, and profits of the said property as he might see fit, without accountability to the cestuis que trust, or either of them, or to any successor in said trust, as to said rents, issues, and profits of said property, and further conferred upon him as trustee power to sell, mortgage, or encumber any of the property at his discretion, and to reinvest the proceeds in other property upon like uses and trusts, without the necessity of obtaining any order of court therefor, did not alter the rule of construction above announced, or operate to let in, as beneficiaries of the trust, children bom after the execution of the deed and before -the death of the tmste’e.</p>

<p>Mandamus. Before Judge Lumpkin. Cobb superior court. February 25, 1905.</p>

<p>Certiorari. Before Judge Fite. Whitfield superior court. December 12, 1904.</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. September 9, 1904.</p>

<p>It is not the right of a debtor who has an undivided one-third interest in a tract of land containing eighty acres to have set apart to him, as an exemption under the “pony homestead law,” his undivided interest in the land. Before he can assert' his claim to the statutory exemption provided for in the Civil Code, §2866 et seq., he must bring about a partition of the land, in order that the portion thereof to which he is entitled may be ascertained and the number of acres which can legally be exempted may be definitely known and set apart according to law.</p>

Complaint. Before Judge Hodnett. City court of Carrollton. August 27, 1904. This was a suit upon a promissory note for the first premium due on a policy of life-insurance. The note was signed by J. W. Holmes and was payable to E. H. Wyatt, or order, and endorsed in blank by the payee. The plaintiff alleged that he was a purchaser of the note, for value and before maturity, from the payee.

<p>Complaint. Before Judge Eelton. Houston superior court. August 1, 1904.</p>

<p>Where several notes are given, payable at different times, with interest included in each to maturity and a provision for eight per cent, interest after maturity, with a stipulation that if any of the notes should not be paid at maturity all should become due ; and where one of the notes is not paid at maturity and suit is brought upon all the notes under this stipulation, and judgment is rendered for the full amount of principal and interest appearing on the face of the notes to be due at that time, the judgment not, however, being rendered until after all of the notes have matured according to their respective dates and at a time when all the interest included in each has been earned, there is no usury in the transaction, and the judgment is not for any reason erroneous.</p>

<p>The power of the recorder of the City of Macon to punish for contempt is fixed by its charter, and may be exercised in the manner therein prescribed, without reference to whether he is sitting for the trial of offenses against the municipal ordinances, or as a court of inquiry for the investigation of offenses committed against the State within the limits of the city.</p>

<p>Complaint. Before Judge Felton. Crawford superior court. . October 17, 1904.</p>

<p>Complaint. Before Judge Hodges. City court of Macon. December 13, 1904</p>

<p>Action for damages. Before Judge Hodges. City court of Macon. December 31, 1904.</p>

<p>Equitable petition. Before Judge Holden. Elbert superior court. September 12, 1904.</p>

Appeal. Before Judge Holden. Elberb superior courb. Sepbember 13, 1904. The action was on an accounb for bhe value of a disc drill. The defendanb filed a plea which conbained substantially bhe following allegations: The contracb or order for bhe drill was obtained from him by the fraud and misrepresentations of the plaintiff’s agent, Dix.

Certiorari. Before Judge Holden. Glascock superior court. November 18, 1904. ■ J. W. Neal filed his petition to the ordinary of Glascock county, alleging; in brief, as follows: He had been in constant and uninterrupted use of a permanent right of way or road over the lan.ds of T. J. Neal for more than two years before it. was closed and obstructed.

Complaint. Before Judge Holden. Lincoln superior court. October term, 1904. The Elgin Jewelry Company sued Estes & Dorier on a written contract for the purchase of certain jewelry, the price of which aggregated $197.60. The only clauses in the contract which need be set out are the following: “Warranty. — Any jewelry in this assortment failing to wear satisfactorily will be replaced by new articles free of charge, if returned to us within five years.

<p>Equitable petition. Before Judge Holden. Hart superior ■court. December 22, 1904.</p> <p>The petition of Bond against Kidd alleged, in substance: The plaintiff hired from the defendant a horse and buggy, and made a trip with them into Madison county. Having reached his destination, he hitched the horse to a tree near the house to which he was going. Some time thereafter the horse became frightened at •a dog. The plaintiff caught hold of the buggy lines, but the bridle broke and the horse ran down the road for a distance of about two miles and ran into Broad river. The river was several' feet above low-water mark, and the horse was drowned and the buggy was carried down tlje river. Immediately after the accident, the plaintiff informed the defendant of what had taken place,“ and before he could return to Hartwell said Kidd went over into Madison county, and approaching your petitioner told him that he w.as liable to him for the loss of said property; that he, your petitioner, had criminated himself, and that, he, Kidd, could have sent another man after your petitioner, but thought he would see him first, and if he, your petitioner, would give him good notes for the value of said property, he would let him off and would not go to law with him, your petitioner.” Believing these threats and statements and not being informed as to his rights in the matter, the plaintiff gave to Kidd three promissory notes, for $50 each, indorsed by named parties. The notes were ■signed by the plaintiff through intimidation and duress, and are without any valuable consideration whatever. Kidd procured the notes by fraud, and fraudulently holds them. The plaintiff has reason to fear that Kidd will transfer the notes to innocent purchasers, and thereby deprive him of his defense. The prayers were, that an injunction issue restraining Kidd from transferring the notes; that the notes be set aside and cancelled; and for general relief. At the trial term the petition was dismissed on general demurrer, and the plaintiff excepted</p>

<p>1. A deed wherein the description of the property sought to be conveyed is so vague and indefinite as to afford no means of identifying any particular tract of land is inoperative either as a conveyance of title or as color of title.</p> <p>2. Where, as in the present case, instruments of this character are admitted in evidence over proper objection by the defendant, and the plaintiff is thus given the benefit of a theory of recovery to which he is not entitled, a verdict in favor of the plaintiff can not be permitted to stand, unless the evidence irrespective of such- deeds demands a. finding that he had title to the premises in dispute.</p> <p>3. An objection to the admission in evidence of a deed because it was not executed before an officer authorized by law to attest such instruments may be met by proving by one of the subscribing witnesses that the deed was duly executed and delivered in his presence.</p>

<p>Complaint. Before Judge Holden. Hart superior court. December 22, 1904.</p>

<p>Levy and claim. Before Judge Cobb. City court of Athéns. November 29, 1904.</p> <p>An attachment in favor of Rowland, trading as Rowland & Company, against Bartlett, Kuhn & Company, was levied on a lot of corn in a car standing upon a side-track of the Georgia Tailroad in the city of Athens. Gregg & Son interposed a claim. On the trial the plaintiff introduced certain evidence and closed. It does not appear to have been contended that he did not make out a prima facie case. The claimant then assumed the burden of proof. The court admitted certain evidence over objection of plaintiff, and at the close of the evidence declined to direct a verdict in favor of the plaintiff and of his own motion directed one in favor of the claimants. Plaintiff excepted. Taken together, the evidence showed that Bartlett, Kuhn & Company had shipped the corn from a point in Indiana to Athens, Georgia. The bill of lading showed that it was shipped to their order, “ notify J. T. Brown.” They then drew a draft on Brown for the price of the corn and endorsed the bill of lading in blank; and the draft with the bill of lading attached was “purchased” by the First National Bank of Terre Haute, Indiana. On arrival of the car at Athens, Brown inspected it and refused to accept it. Some negotiations followed between Bartlett, Kuhn & Company and an agent representing them and the broker who had sold the corn for them to Brown. In the meantime the draft with the bill of lading attached had been forwarded by the Indiana bank to the bank at Athens. Brown did not pay it. . One of the contentions of the plaintiff in attachment was, that, whether the Indiana bank might have maintained a claim in its own name or not, the claim by Gregg & Son was not sustainable. On the subject of their authority to interpose the claim, the cashier of the Indiana bank testified as follows: “ After J. T. Brown, consignee, refused payment of draft, my understanding is that the title to this car of corn became vested in this bank as holder of the draft with bill of lading attached. We directed Joseph Gregg & Son to honor draft and take possession of the car of corn and sell for our account. After our purchase of draft with bill of lading attached, Bartlett, Kuhn & Company never acquired any title to the car. We did not go into the market and sell this car of corn, but directed Gregg & Son to sell it on our account. This draft was taken up by Gregg & Son at our request. We furnished the money for that purpose, and they sold on our account, as heretofore stated. No one took up the draft for this car of corn other than this hank itself through Gregg & Son, who took it up for us with funds furnished by us, and sold the same for our account.” . One of the firm of Gregg & Son testified on this subject as follows: “ Our firm were requested to pay to the National Bank of Athens a certain draft drawn by Bartlett, Kuhn & Company on J. T. Brown, Athens, Georgia, with bill of lading attached, for the car of corn in dispute. We were directed to sell this corn to the best advantage for account of the First National Bank of Terre Haute, Indiana, to whom the car .belonged. As we feared there would be trouble about the car of corn, we refused to pay the draft unless the First National Bank of Terre Haute, Indiana, would put iis in possession of funds to do so; and on June 15, 1904, the Fourth National Bank of Atlanta received telegram from the First National Bank of Terre Haute to cash our draft for $563.84, which was done by the Fourth National Bank.” They (the claimants) paid the draft by mail on June 15, 1904, sending to Athens their certified check on the Fourth National Bank of Atlanta for the amount stated, and received by return mail from the Athens Bank the draft, marked “paid,” with the bill of lading attached thereto. “ Soon after we paid this draft in Athens at the instance of the First National Bank of Terre Haute, Indiana, we learned that the property had been attached by Rowland & Company, on an alleged claim against Bartlett, Kuhn & Company. We were requested by the First National Bank of Terre Haute to replevy this car of corn as owners, as we had paid the draft drawn on J. T. Brown & Company.” The bank indemnified them in the matter of getting a security on the claim bond, which they, filed, and also from liability on account of their signing the bond as principal. After thus obtaining possession of the corn, Gregg & Son sold it and sent returns to bank, deducting the cost of the bond and attorney’s fees, which they were authorized by the bank to pay.' They also deducted commissions for making the sale.</p>

<p>1. A petition containing one count, in which two causes of action are set forth, will on special demurrer he held had for duplicity.</p> <p>2. A petition containing several distinct counts which do not differ in any substantial particular from each other will, on motion filed at the first term in the nature of a special demurrer, he dismissed unless the surplus counts are eliminated hy amendment.</p> <p>3. A petition containing several counts, each referring to the same transaction, . but differing from each other in. substantial particulars as to the details of the transaction, is not bad for duplicity.</p> <p>4. There was no error in overruling the demurrer to the first and third counts 'of the petition.</p>

<p>Complaint. Before Judge Kimsey. Habersham superior court. January 23, 1905.</p>

Complaint. Before Judge Roberts. Rabun superior court.' December 21, 1904. W. D. Young brought suit against Sara E. White on an open account containing a number of items. Some of them were for amounts paid to an attorney for defending title to certain land, and for a fee and expenses for instituting proceedings to enjoin parties from trespassing on the land. The verdict was against the defendant, and she moved for a new trial.

<p>Action for damages. Before Judge Hamilton. City court of Floyd county. September 12, 1904.</p>

<p>Action on contract. Before Judge Henry. Chattooga superior court. September 20,1904.</p>

<p>Equitable petition. Before Judge Bartlett. Polk superior court. November 2, 1904.</p> <p>The petition of Bunn & Trawick against W. G. England, as executor of the will of W. L. B. Powell, and against O. Willing-ham, alleged: Powell died, leaving an estate of realty and personalty of the value of $7,000. England, as executor of the estate, took charge of it, sold the property, and collected the assets,, and the estate is now ready for distribution; but he has not made a final return, and the plaintiffs are unable to state the amount of money in his hands, or the sum that would go to each of the heirs of Powell. About August 31, 1901, the plaintiffs were employed as attorneys at law for certain of the legatees and heirs ,at law of the testator, viz., Mrs. M. J. Denton, W. J. Powell, E. L. Powell, L. M. Powell, Mrs. George McCormick, and Miss Anna Powell. Their contract with Mrs. M. J. Denton was made in writing, and is as follows: “It is agreed between Mrs. M. J. Denton and Bunn & Trawick that the said Bunn & Trawick are. to act as attorneys for the said Mrs. M. J/ Denton in representing her in connection with her interests in the estate of her father, W. L. B. Powell, and to look after her interest in said, estate and the acts of the executor in administering the estate; and to do whatever is -necessary to protect her interest, whether the same is done by litigation or without litigation, she preferring for her interest to be managed without litigation if possible; they to use their discretion, however, with regard to what litigation is necessary. Their fees in said service to be thirty (30) per cent, of what they may get for her on account of her interest in said estate, whether the same is obtained in money, land, or otherwise; they to perform their services to her faithfully and to the best of their ability. This August 31, 1901.” This was the contract made with each of the other parties named. After said contract was made with Mrs. Denton, plaintiffs were employed verbally, on the same terms of agreement in every respect, by W. J., E. L., and L. M; Powell for themselves; and they were so employed to represent Mrs. Georgia McCormick and Miss Ann Powell, by E. L. Powell, who was duly authorized by Mrs. McCormick and Miss Anna Powell so to employ plaintiffs. The petition set forth various services rendered by the plaintiffs in accordance with these contracts, and alleged: Plaintiffs arranged with L. M. Powell such fees ás he was owing, and released him. W. J. and E. L. Powell complied with their contracts, and, when they disposed of their interests, settled with plaintiffs according to the terms thereof. After said contracts of employment were made and after the principal part of the services to he performed by plaintiffs, was done by them in accordance with said contract, Mrs. M. J. Denton sold and conveyed to 0. Willingham her interest in the estate, and made him a conveyance by deed or bill of sale. Willingham took said interest charged with the claim for fees and attorney’s lien of plaintiffs for 30 per cent, of the value of the interest of Mrs. Denton, and “plaintiffs were and are entitled either with or without actual notice to said Willingham under said fee contract;” but Willingham had due and legal notice of plaintiffs’ said fee contract. After Willingham bought the interest of Mrs. Denton and it came to plaintiffs’ knowledge, they gave notice in person to him of said fee contract with Mrs. Denton, and at the same time informed him clearly of plaintiffs’ fee contracts with Mrs. McCormick and Miss Anna Powell, and that they were entitled to 30 per cent, of the interest or shares of Mrs. McCormick and- Miss Anna Powell, and would claim the same, with their rights and liens thereon. . Subsequently to said notice Willingham bought the interests or shares of said Mrs. McCormick and Anna Powell. He took them subject to the right of plaintiffs to receive 30 per cent, of the value of said shares; and plaintiffs’ right to said 30 per cent, is not affected by the sale of said shares to said Willingham, but they are entitled to 30 per cent, of the value of said shares and of the share of Mrs. Denton according to the proper settlement that should and will be made by the executor. Plaintiffs faithfully performed their duties as attorneys for their said clients, and have completed their duties under their said contract, so far as they believe it is necessary for them to do; and they are ready to perform any further services, if any be necessary, to protect and preserve said shares according to said contract. The fees agreed upon were reasonable for the services completed, and they are entitled to be paid their fees of 30 per cent, upon the three shares of Mrs. Denton, Mrs. McCormick, and Miss Anna Powell; and further, they have a lien as fixed by the laws of this State upon the said shares to the amount of the value of said shares, to wit, the sum of $450, or $150 of each of said shares. As the executor has not made a final settlement or final return of the estate, plaintiffs can not state the actual balance, but, on information and belief, they charge the •value of each of said three shares to be $500 or other large sum. Said sum will be fixed definitely by the settlemént by said executor of his receipts and. disbursements, and they now claim and will claim 30 per cent, of the value of said shares. 0. Willing-ham purchased the shares of all the legatees of said testator, and when all the lands of said estate were sold, in December, 1902, although the farm was worth at least seven or eight thousand dollars, said Willingham, having bought up all of said shares, bought in said farm for $4,000, he having practically no competition in buying it. Plaintiffs are not advised whether Willingham has paid his bid price for said land to' the executor, but they charge that the executor has not paid over the said three shares to said Willingham, or settled with him, but said three shares are in the hands of the executor to be distributed, and the executor has not yet deeded said lands to said Willingham. Plaintiffs gave said executor written notice of their claim for fees of 30 per cent, of said three shares, and said executor is holding up payment of said three shares that he may pay the same according to the rights of the parties entitled thereto. He is willing to pay said shares to plaintiffs, or entirely to said Willingham, according to their rights, he being in this matter stakeholder as between them. If said executor were allowed to pay said shares to Willingham., plaintiffs would have no complete and adequate remedy at law to enforce their rights, Mrs. Denton, Mrs. McCormick, and Miss Anna Powell being insolvent, or so nearly so that they will be unable to pay plaintiffs the amount due for said fees. Plaintiffs have demanded payment of their claim from each and both of the parties defendant, but defendants have refused to settle the same. Said Willingham is claiming all of the interest in said ■ estate belonging to Mrs. Denton, Mrs. McCormick, and Miss Anna Powell, and is seeking to defeat plaintiffs’ claim. Plaintiffs pray> that England be required to come to a settlement with them as to his receipts and disbursements in the administration of said estate, and to make a showing to the court of the valúe of- said shares of Mrs. Denton, Mrs. McCormick, and Miss Anna Powell, and how much is due on account of each of said ■ shares, and to show what property or assets of said estate are now in his hands as executor; that the court ascertain the value of said three shares and render in plaintiffs’ behalf judgment for 30 per cent, of each of them, and require the executor to pay over to plaintiffs said 30 per cent.; that the executor be enjoined from paying over to Willingham the said 30 per cent, of said three shares, and from making any conveyance of the realty purchased by Willingham, and from doing any acts with Willingham that will tend to prejudice plaintiffs’ rights; that the court ascertain whether any part of said three shares has been turned over to Willingham, and whether he has paid over to the executor the purchase-price for said realty, and whether he is indebted in any sum to said executor, and whether he has in his hands any money or property due or belonging to said estate; and if the court should find that Willingham is so indebted or has such money or property, or that said shares have been paid to him, that the court render judgment for plaintiffs against both said executor and Willingham for the sum due plaintiffs; also for general relief. There was a prayer that a lien on the three shares be set up in favor of the plaintiffs, for the amount due them; but this prayer was 'withdrawn.</p> <p>The defendant demurred, for want of equity and a cause of action, and because: (a) It is not alleged that plaintiffs rendered services for either of the defendants, or that the defendants assumed or agreed to pay for any services rendered; nor is any fact alleged that tends to show that plaintiffs have a lien on any of the property' of the estate for their fees. (5) There is a misjoinder of parties defendant, for the reason that if the plaintiffs have any lien they can establish, they can do so without making Willingham a party; if Willingham has assumed or become responsible for the fees, there is' no necessity for making England a party, as no insolvency is alleged as to Willingham. (c) There is a nonjoinder of parties. If plaintiffs have a right to sue, it is against Mrs. Denton, Mrs. McCormick, and Miss Anna Powell. As it is alleged that they contracted for and owe the fees, they are necessary parties. The defendants sued could not be held liable unless it should appear that the money could not be made out of Mrs. Denton, Mrs. McCormick, and Miss Powell. The court sustained the demurrer, and the plaintiffs excepted.</p> <p>contended that the contract in question was in effect a sale and conveyance, and not a mere lien, and cited Civil Code, § 3538. . ,</p> <p>cited Civil Code, §§ 2814, 2804, 2693; Ga.B. 101/80; 102/24; 104/353; 107/454; 99/629; 64/579; 72/848; 98/158; 73/322 ; 92/499; 104/353; 109/601; 82/798; 118/483; 62/164; 79/716; 82/166 ;, .10-2/174; 104/248; 114/303.</p>

<p>Attachment. Before Judge Longley. City court of La Grange. October 8, 1904.</p>

<p>Complaint. Before Judge Longley. City court of La Grange. November 2, 1904.</p>

<p>Levy and claim. Before Judge Jones. City court of Green-ville. October 28, 1904.</p>

<p>1. Where the judge’s certificate to a hill of exceptions bears a given date, and the acknowledgment of “due and legal service” of the bill of exceptions appears to have been signed on the same date, on which day the bill of exceptions was filed in the office of the clerk, the presumption is that the different steps taken in having the certificate signed, service acknowledged, and the bill of exceptions filed were in their proper chronological sequence.</p> <p>2. That one of the assignments of error in a bill of exceptions can not be considered by this court, because exception to the ruling thereby complained of was not taken in time, affords no ground for dismissing the writ of error, if there be another assignment of error in the bill of exceptions upon which . the court can properly pass.</p> <p>3. Suit upon the bond of a constable may be brought in the name of any person aggrieved by the official misconduct of the officer, against him and his sureties, without bringing against him any preliminary action to settle his*liability to the aggrieved party for his alleged misconduct.</p> <p>4. When a person wishing to sue out a distress warrant prepares the necessary papers, takes them to a magistrate, explaining their character and reading over to him the affidavit on which the distress warrant is based, which affidavit the former has already signed, and he at the same time states to the magistrate that he will swear to the facts recited in the affidavit, and requests the magistrate to sign the jurat, which he immediately does with the understanding that the affiant’s intention is to swear to the truth of the facts as stated in the affidavit, and returns the papers to the affiant properly attested, neither the affiant nor any third person can afterwards be heard to assert that the distress warrant is void because not based on an affidavit made by a person to whom an oath was legally administered. Though the affiant may have done all of the talking, and the magistrate may not in terms have called upon him to declare on his oath that the facts recited in the affidavit were true, yet the concurrence-of present act and intent on the part of both was the fair equivalent of a formal oath solemnly administered by the magistrate, and consciously and with equal solemnity taken by the affiant.</p>

Action on insurance policy. Before Judge Hodges. City court of Macon.

<p>1. Consent of ad owner of laud for the public to use as a passageway á path across his land may be inferred from the fact that the path has been, for some time in the past, continuously used by the public for this, purpose without objection from the owner; and from such implied consent a duty arises to protect persons using the path against hidden dangers which may be incurred by such use.</p> <p>2. But the owner is under no duty to persons using the path to keep his entire premises in safe condition for pedestrians; and if a person using the path leaves it and wanders some distance from the path and falls into a ditch partly concealed from view, the owner will not be liable. In such a case it is immaterial that the person injured was a child of tender years.</p> <p>3. Where suit is brought by a person injured in the manner indicated in the note immediately preceding, it must appear, in order to authorize a recovery, not only that the path was used by him with the express or implied consent of the owner, but that he fell into the ditch from the path or near thereto.</p> <p>4. Applying these rules to the facts of the present case, the evidence authorized a finding that the plaintiff was using the path with the implied consent of the owner of the premises through which it ran, but there was no evidence to show that the plaintiff was using the path at the time the injuries, were received. The verdict in favor of the defendants was therefore the only lawful verdict that could have been rendered in the case, and the court did ■ not err in refusing to grant a new trial.</p>

<p>Where a bond given to appeal a case from the ordinary’s court to a jury in the superior,court recites the parties to the case, the character of the case, the judgment of the court, and the term at which it was rendered, and the appellant and his security acknowledge themselves bound, generally but not to any named obligee, for the eventual costs of the stated case, the fair implication is that the obligor and his security are bound to the appellee in terms of the bond. Such a bond is a substantial compliance with the Civil Code, §4466.</p>

Action for breach of contract. Before Judge Holden. Elbert superior court. October 17, 1904 In a suit by the Elberton Hardware Company against A. S. Hawes, the petition made the following allegations: The plaintiff is a corporation. On February 20, 1904 the parties entered into the following written contract: “ State of Georgia, County of Elbert.

<p>Exceptions to auditor’s report. Before Judge Holden. Wilkes superior court. November 14, 1904.</p>