Volume 123 — Georgia Reports

<p>Injunction. Before Judge Holden. Elbert superior court. March 3, 1905.</p> <p>The Pearle Cotton Mills, a corporation, as the owner of certain land through which flows a creek, and of a mill operated thereby, filed its petition against the City of Elberton and its mayor, seeking to enjoin the taking of water from the creek to supply the city, which it was alleged was about to be done at a point on the stream above the land of the plaintiff. Resulting damage to its property was alleged. Defendants admitted the intention to .use water from the stream, but denied that any injury would result to the plaintiff therefrom. They further alleged, that the city had advertised and held an election for the purpose of determining whether bonds should be issued to construct the waterworks; that the election having resulted iu favor of bonds, they were is-' sued and sold to the amount of $40,000, that thereupon the city began to. purchase land on the creek at a point where it has since taken water, for that purpose, and proceeded to purchase pipe and machinery, and to employ hands and contractors to build and complete its waterworks, and to dig ditches in the city and lay pipes connecting it with the creek; that the whole work was completed at an expense of about $50,000 ; that the waterworks were in actual use, and the water was beiug pumped from the creek into the city before the petition for injunction was presented; that the plaintiff and its officers and stockholders had full knowledge of all the facts, and stood by without objection or doing anything to put the city on notice that any injury would result, or damage for trespass would be claimed. The answer alleged (and there was no denial thereof) that there were but three stockholders of the plaintiff, who were also respectively president, vice-president, and secretary and treasurer. There was no direct denial that they had knowledge of the facts pleaded by the defendant. Two of them testified, that “said city never notified petitioner that it intended to use said creek for said waterworks, and certainly petitioner had no notice that if it intended so to do it would not, before undertaking to withdraw said water, either acquire a right by proper agreement or through the exercise of the power of eminent domain.” One of them testified that he did not know that the defendants or their agents had pumped or were pumping water from said creek before this suit was filed, and never learned of it until afterward. Another testified, that the City of Elberton had not condemned or sought to condemn any right, title, or easement to withdraw water from the creek, and that neither the mill nor any one for it had granted any such right to the city. An injunction" was granted, and the defendant excepted.</p>

<p>One -whose interest in property depends upon the' terms of a will does not, by a deed from the executor, purporting to be executed pursuant to the requirements of the will, acquire any greater interest than would pass under the will. Nor can such a deed be used as color to lay the foundation of a prescriptive title against the claims of those whom the grantee was bound to recognize as the owners under the terms of the will.</p>

Complaint. Before Judge Henry. Floyd superior court. September 9, 1904. The action was by Sallie F. Turner against J. D. Turner and Susie B. Turner. The petition alleged, in substance: J. W. Turner died intestate, leaving as bis heirs at law his widow and four children, one of whom was J. D. Turner.

<p>Action for damages. Before Judge Eite. . Catoosa superior •court. October 17, 1904.</p>

<p>Levy and claim. Before Judge Hamilton. City court of Floyd county. September 20, 1904.</p> <p>A mortgage fi. fa. in favor of R. J. Ragan against Lester Corley was levied on certain personal property, and a claim was interposed thereto by the Standard Scale Company. The claim was returned to the city court of Floyd county. The claimant filed an equitable amendment to his claim, alleging, in brief, as follows: On May 26, 1902, Corley executed and delivered to the Exchange Bank of Rome three notes for the principal sum of $80 each, and to secure them executed a mortgage to the bank, covering the property levied on. It was duly recorded. Afterward Corley executed and delivered to Ragan a mortgage covering the same property, along with other property. This was dated October 7, 1902, and was duly recorded. The note and mortgage given to the bank were in part for the purpose of raising $165, with which to pay the Battie Machinery Company for the property in dispute, for which balance of purchase-money the machinery company held notes reserving title. During the month of November, 1902, the scale company bought the property claimed from Corley, for $200. Out of the purchase-price it paid the bank $160, being balance due it on the note and mortgage held by it. Upon receipt of this sum the bank cancelled its mortgage and surrendered it to Corley. He is insolvent, has left the State, and his whereabouts are unknown to the claimant. The prayer was as follows: “ Wherefore, the premises considered, said Standard Scale Company prays that it be subrogated to the rights of said bank, as against said property ; that said R. J. Ragan be required to pay the said Standard Scale Company the sum of $160, with eight per cent, per annum interest thereon from November 6, 1902; that upon failure to pay said amount, with interest, that said property be found not subject to the lien of the said mortgage held by said Ragan; that said Standard Scale Company have such other and further relief as to the court may seem just and equitable.” The case was submitted to the judge of the city court without a jury, upon an agreed statement of facts. He rendered the following judgment: “This case having been submitted to the court upon an agreed statement of facts, after hearing argument of counsel, it is considered, ordered, and adjudged by the court that the property levied upon and claimed in said cause be and the same is hereby found not subject to the lien of plaintiff’s fi. fa., unless plaintiff in fi. fa. pay' over to claimant, within thirty days from the date hereof, the sum of one hundred and sixty dollars, with eight per cent, interest thereon from November 6, 1902. Should plaintiff pay said sum within said time, then said property shall become subject to the lien of plaintiff’s fi. fa.” To this juglgmeut the plaintiff in fi. fa. excepted.</p>

<p>Foreclosure of mortgage. Before Judge Henry. Floyd superior court. September 8, 1904.</p>

<p>When the statute makes it penal oror balls,” an indictment is not demurrable because it alleges that the defendant played and bet for money and other things of value at a game played with “cards, dice, and balls.”</p> <p>2. Under an indictment charging that the defendant played and bet money and other things of value at a game played with cards, dice, and balls,.it is ■ sufficient to support a conviction if the evidence shows that he played and bet money at a game played with cards alone. (Pish, P. J., dissents.)</p> <p>3. Under the ruling in Pullen v. State, 116 Ga. 555, where several persons were jointly indicted by name for the offense of gaming, and-it was not alleged that others or unknown persons participated in the game," a conviction of one of the named persons was not authorized by evidence which did not disclose that any of those jointly indicted'with him were connected with the transaction.</p>

<p>Injunction. . Before Judge Lewis. Baldwin superior court. February 2, 1905.</p>

<p>In January, 1874, Samuel Pearson conveyed certain land to Doris, trustee, “for the sole and separate use of ” the wife of the grantor, Mary Pearson, “ for and during her natural life, and after her death to such child or children by [the grantor] as she may leaving surviving her at her death, share and share alike; with power to the said Mary Pearson to empower the said Doris or his successors in the trust, by writing under her hand, to sell any part or the whole of said trust estate and to reinvest the proceeds in such other property, subject to the above-described trusts, as he or his successor or successors may deem most to the interest of said trust estate, without the aid or intervention of any court whatever being necessary. And with power also to the said Mary Pearson, if she shall die leaving no child or children by [the grantor] living at the time of her death, to limit and appoint by her written will and testament, properly proven and executed, the use of said property to whomsoever she may see fit; ” and with power also to Mary Pearson to appoint another trustee in case of a vacancy, the trustee so appointed taking under and subject to the trusts limited in the deed. The original trustee died in 1890. Mary Pearson in 1899 conveyed all her right, title, and interest in the property described in the trust deed to the remaindermen, who were of full age. Subsequently, in 1904, Mary Pearson nominated C. T. Talbert as trustee to succeed Doris, and empowered him to exercise the power of sale conferred on the original trustee; and the new trustee, under the power of sale, sold and conveyed the land to The Planters Loan and Savings Bank. Held: (1) The power of appointment by the life-tenant of the whole estate by will was extinguished by the alienation by the life-tenant of her title in the land to the remaindermen. (2) The power of sale given to the trustee upon the written power of the life-tenant was extinguished by the union of the estate for life with the remainder in fee. (3) The deed from Talbert, trustee, conveyed no title to the bank.</p>

<p>Trover. Before Judge Stark. City court of Jefferson. January 31, 1905.</p>

<p>Complaint. Before Judge Proffitt. City court of Elberton. January 25, 1905.</p>

Action for damages. Before Judge Fite. Gordon superior court. October 29, 1904.

<p>There was nothing in the evidence to authorize a submission to the jury of the question whether the line between the two estates had been acquiesced in for seven years, as shown by acts or declarations of the adjoining landowners.</p>

<p>1. If there are latent defects in machinery, or dangers incident to an employment, unknown to a servant, of which the master knows or ought to know, ho is bound to give the servant warning in respect thereto.</p> <p>2. In a suit by a servant against a master, alleging failure of duty on the part of the latter in not giving to the servant warning of a danger incident to his employment, it must appear that the master knew or ought to have known of the danger, and that the servant injured did not k.now and had not equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known it.</p> <p>3. If the danger is obvious, and as easily known to the servant as to the master, the latter will not be liable for failing to give warning of it.</p> <p>4. A master is bound to exercise ordinary care in the selection of servants, and not to retain them after knowledge of incompetency. If he discharges his duty in these particulars, he is not required to anticipate that they may be negligent, and to warn one of them of dangers which may arise from the possible negligence of others.</p> <p>5. Where an employee injured by a machine in a cotton factory contended that the danger was not obvious, because a portion of the machine was covered with cotton which obscured the view and prevented the employee from seeing an open door in the machine ; and where the defendant sought to show that had the plaintiff performed his duty the cotton would not have fallen down so as to obscure the view and prevent the open door from being readily seen, it was error for the presiding judge to charge that it was immaterial whether the cotton fell down so as to obscure the view or not.</p> <p>C. The charge in respect to the measure of damages was somewhat general, but the evidence not disclosing elements of special damage of á kind to require more detailed instructions on the subject, and there being no request to charge, the judgment would not be reversed on this ground.</p>

Levy and claim. Before Judge Fite. Gordon superior court. December 12, 1904. An execution, issued on the foreclosure of a laborer’s lien in favor of Padgett, was levied on a lot of wood as the property of Huffaker, and Smiley interposed a claim. The jury found the property subject. The claimant’s motion for a new trial was overruled, and he excepted.

<p>A railway company is not, relatively to one who has no business to transact with it'but who goes to its station at the instance of a third person to look after some private property which he has, without the company’s permission, stored in jt warehouse which it has practically abandoned and allowed to become out of repair, under any duty to keep the building and its approaches in a safe condition for use by persons entering or leaving the same.</p>

<p>1. A will with only two witnesses is absolutely void as a muniment of title to realty in this State; and a judgment of probate can not give it any validity.</p> <p>2. While a party may be estopped, under certain circumstances, from asserting the invalidity of a will, there was nothing in the present case which would authorize a finding that such an estoppel had arisen in favor of the plaintiffs against the defendant.</p> <p>S. There was no error in any of the rulings on evidence, which were complained of ; and the court did not err in granting a nonsuit.</p>

<p>Injunction. Before Judge Henry. Floyd superior court. March 11, 1905.</p> <p>Gammon filed his petition seeking to enjoin Jones from cutting timber on certain lots of land in Floyd county, alleging that the timber constituted their chief value, that the damage would be irreparable, and that the trespass was continuing in character and would involve a multiplicity of suits. The defendant claimed the right to cut the timber under a certain contract of rent between himself and plaintiff, containing, among other things, the-following clauses: “ The party of the first part [Gammon] agrees, and it is understood, that the party of the second part [Jones] may clear up ten acres of woodland on lot No. 158 — 3 and 23 — [apparently meaning 3d section, 23d district] each year and may have the wood cut off said ten acres and crop for next year, said party of the second part to cut and clear said woodland, beginning on the north side, contiguous to land recently cleared. In consideration for wood so given, the party of the second part agrees to deliver to the party of the first part, Gammon, twenty .(20) cords dry wood, at his residence in the town of East Eome. All wood and timber necessary for fire-wood- for party of the second part and his hand or tenants, to be obtained from said ten acres above mentioned. . . This contract is to begin Jan. 1,. 1903, but it is understood and agreed that upon the full and complete performance by the party of the second part with this contract, he, the said Jones, shall have the refusal of said farm at same price and privileges for the years 1904, 1905, and 1906.” The plaintiff alleged, that the place where the defendant was cutting wood when the injunction was applied for was not on land lot No. 15&, but on land lots Nos. 121, 122, 159, and 160. The-defendant sought to show that the intention of the contract was that the plaintiff was to give him “ forty acres of wood ” in four years; that the figures, 1904, 1905, and 1906, and the words “ each year,” were interlined in accordance with such intent; that he was not to be confined to cutting on land lot 158; that there were only about twelve or thirteen acres of woods on that land lot; that after cutting this he informed plaintiff, and the latter-recognized his right to cut more wood, and told him to cut from a little three or four acre tract on lpt 122 ; that the defendant did so; that they had a lawsuit, and afterwards the plaintiff refused to tell him where to cut further. The evidence was conflicting on material points. The plaintiff testified, that he did not authorize the defendant to cut any timber on land lots numbers 122, 160, and 159, but on the contrary, personally and by letter, notified the defendant that he must not do so. Another witness testified, that there were thirty-five or forty acres of woodland on part of land lot No. 158, when defendant moved on it in the winter of 1902 and 1903, and that the defendant had cut and moved all the wood from it. There was other conflicting evidence. The judge granted an injunction, and the defendant excepted.</p>

Equitable petition. Before Judge Freeman. Meriwether superior court. September 6, 1904. On June 5, 1879, Hon. Hiram Warner executed bis will! It was probated in August, 1881. In 1904 E.. Held: that “Kittie Hill Terrell, wife of the petitioner, E. B. Terrell, in the property referred to . . under tire 5th item of the will of her grandfather, Hiram Warner, deceased, take an estate in fee, subject to be divested upon her dying without children.

Action for damages. Before Judge Seabrook. Warren superior court. September 10, 1904. Penina Wilson brought suit against the Louisville and Nashville Railroad Company, a foreign corporation, as the lessee of the Georgia Railroad and Banking Company, a corporation under the laws of Georgia.

<p>Action on contract. Before Judge Gober. Cobb superior court. September 28, 1904.</p>

Action for damages. Before Judge Eite. . Whitfield superior court. November 14, 1904. The question presented for determination in this case is whether or not the court below erred in overruling' a demurrer interposed by the defendant railroad company to the plaintiff’s petition as amended.

<p>Equitable petition. Before Judge Eite. Cobb superior court. December 17, 1904.</p>

<p>In an action in the superior court on a promissory note containing a waiver of homestead and exemption, the petition may be amended by alleging, that prior to the institution of the suit the defendant was adjudged a bankrupt, that certain property has been set apart to him as an exemption by the trustee in bankruptcy, and that the plaintiff has not proved his debt in the court of bankruptcy; and by praying for a special judgment against such exempted property.</p>

<p>1. Where suit was brought in this State on account - of a personal injury occurring in the State of Alabama, and no statute of that State was pleaded or shown, this court will presume that the common law was of force there..</p> <p>2. At common law common carriers of passengers were bound to use extraordinary diligence; and injury to a passenger m consequence of the breaking or failure of a vehicle, roadway, or other appliances of the carrier, owned or controlled by it and used by it in the transit, or the manner of their operation, raised a presumption of negligence against it.</p> <p>3. A common carrier of passengers is bound to use extraordinary diligence, no matter what means of conveyance may be employed, whether a passenger-train, a freight-train, or a “mixed ” train. The standard or degree of diligence required is the same, namely, that extreme care and caution which very prudent and thoughtful persons exercise under like circumstances. But the acts which extraordinary diligence requires to be done are not the same under all circumstances.</p> <p>4. Extraordinary diligence, as applied to the movement, starting, or stopping of “mixed” trains, and the jolts or jerks occurring in connection therewith', is that extreme care and caution which very prudent and thoughtful persons would use with a like train under like circumstances.</p> <p>5. In determining whether extraordinary diligence has been used by the company, the nature and character of the train, whether a passenger-train, a freight-train, or a “ mixed” train, is a circumstance for the consideration of the jury ; and on request to charge the jury in regard to considering the character of the train, the presiding judge should not omit all reference thereto.</p> <p>6. If a passenger, injured by a negligent jerk occurring in the operation of a railway train, by the exercise of ordinary care could have avoided the consequences to himself of the railroad company’s negligence, he would not be entitled to recover. The character of the train and its method of operation,'known to the plaintiff, are circumstances for the consideration of the jury in determining whether he exercised ordinary care or not. But a request to charge which would make the exercise of ordinary care on the part of a passenger dependent entirely on what was usual or customary with the railroad, without reference to his knowledge of it, or to the circumstances of the particular case, was properly refused.</p> <p>7. If a passenger was injured by the negligence of the railroad company, he was bound to lessen the damages as far as practicable by the use of ordinary care and diligence. But it would be error to charge that it was his .duty to do some particular thing for that purpose.</p> <p>8. Grounds of a motion for new trial, based upon the refusal of the judge to allow certain questions to be asked, furnish no reason for reversal, where it does not appear what answers were expected thereto.</p>

<p>Distress warrant. Before Judge Henry. Floyd superior court. September 9, 1904.</p>

<p>Complaint. Before Judge Henry. Chattooga superior court. January 5, 1905.</p>

<p>Under the act of December 21, 1897 (Acts 1897, p.. 54, Van Epps’ Code Supp. § 6225), notice of the filing of a traverse of the answer of a garnishee in a proceeding pending in a court other than a justice’s court “ shall be given . in writing . . at least ten days before the trial of such garnishment.” Even if the court has any discretion to postpone .the trial to permit notice to be given, it is not an. abuse of. discretion to refuse to do so, where more than five months elapsed between the filing of the traverse and the calling of the case for trial, and no reason is assigned for the failure to give the notice.</p>

<p>Equitable petition. Before Judge Henry. Floyd superior court. January 23, 1905.</p>

Levy and claim. Before Judge Freeman. Heard superior court. September term, 1904. A crop mortgage with waiver of exemptions, signed by Rufus Miller and his wife, was foreclosed, and the mortgage fi. fa. was levied on 100 bushels of corn, November 23, 1901.

<p>Certiorari. Before Judge Bartlett. Haralsou superior court. December 13’, 1904.</p>

<p>Equitable petition. Before Judge Freeman. Heard superior court. September 24,'1904.</p>

Action for damages. Before D. J. Gaffney, judge pro hac vice. City court of LaGrange. October 21, 1904. Hudson brought suit against the Atlanta and West Point Railroad Company, seeking to recover for the killing and injury of certain cattle alleged to have been struck by one of its trains. It is unnecessary to set out the evidence. The jury found for the plaintiff. The defendant moved for a new trial; and upon its being denied, excepted.

<p>■ Complaint. Before Judge Longley. City court of LaGrange. October 17, 1904.</p>

<p>1. Where a certificate to a bill of exceptions is undated, it will be presumed that an acknowledgment of service appearing on the bill of exceptions was made after the bill of exceptions was certified by the judge and within ten days thereof.</p> <p>2. Even if in a case at law the judge has a discretion to continue a case more than one time for any cause at the instance of the same party, it would have been an abuse of discretion to grant a continuance in the present case ; and it was therefore error to sustain a ground of a motion for a new trial assigning error upon the refusal to grant a continuance.</p>

Complaint. Before Judge Longley. City court of LaGrange. December term, 1904.; Kelsey brought suit against Jackson and others, as deacons and trustees of the First Baptist Church, colored, of LaGrange. He alleged that they were the trustees of the church, and that the title to the church property was in them, and they held and controlled it for the benefit of said church. , Certain real estate was described, and it was alleged that there was no other trust property.

<p>1. An act to incorporate a named raili;oad company, “and to define its rights, powers, and privileges, and for other purposes,” is not unconstitutional as containing matter different from that expressed in its title, or as relating to more than one subject-matter, because in the body of the act it is provided that the corporation shall have the right to construct and equip such lines or routes “as have already or may hereafter be agreed upon and contracted for” by the corporators and the municipal authorities of the city in which the line is to be constructed, and that “ the use and enjoyment of so much of the public streets of said city as has heretofore been granted to said corporators by [the municipal authorities] is hereby confirmed in and unto the said corporation.”</p> <p>2. Under such an act, passed in 1888, where a company operating under a charter thus created is granted the right, by the municipal authorities in 1905, to lay a spur-track in the streets of the city, the right so granted may be exercised independently of the question whether the original charter right to lay spur-tracks was exhausted with the first use.</p>

<p>After an order granting temporary alimony and attorney’s fees has been duly passed, the court is without jurisdiction to revise the same or to set it aside on any ground save one based on a change of circumstances occurring subsequently to the granting of the order. It is not ground for vacating the order, that the husband sought to review its correctness before the Supreme Court, but his bill of exceptions was dismissed in that court because of his failure to observe the statutory requirements as to suing out a writ of error; that subsequently ,> upon the same evidence on which the order for temporary alimony had been granted, a jury found in favor of the wife on the trial of a suit by her for permanent alimony, and that the verdict was set aside by the Supreme Court upon a review of that case, the court holding that under the evidence upon which she relied for a recovery she was not entitled to prevail. Such a chain of circumstances does not constitute such a change in the status of the parties as will confer upon the husband a right to another hearing on the question of his liability to pay temporary alimony pending the suit for permanent alimony.</p>

Equitable petition. Before Judge Gober. Cobb superior court. January 20, 1905. An action was instituted in the name of James E. Stanley, suing by his next friend Nancy Rusk, against his wife, Mrs. Hattie Stanley, individually and as the natural guardian of her minor child.

Indictment for assault with intent to rape. Before Judge Speuce. Decatur superior court. March 6, 1905. . The accused, O. N. Sutton, was tried under an indictment charging him with the offense of assault with intent to rape. The following verdict was rendered: “We, the jury, find the defendant guilty, and recommend him to extreme mercy.” The judge disregarded the recommendation, and sentenced the accused to ten years in the penitentiary.

<p>Accusation of larceny. Before Judge Humphreys. City court of Moultrie. February 27, 1905.</p>

<p>Accusation of larceny. Before Judge Harwell. City court of LaGrange. March 25, 1905.</p>

<p>Indictment for altering teacher’s license. Before Judge Holden. Hart superior court. March 23, 1905.</p> <p>A. S. Taylor was indicted, in the superior court of Hart county, for the offense of' falsely and fraudulently altering a teacher’s license. The indictment was demurred to. The demurrer was overruled, and the defendant excepted. On the argument in the Supreme Court it was suggested that the copy of the indictment sent up with the record contained certain errors, and under order of the court another copy was certified and filed. The body of the indictment was as follows: “The grand jurors . . charge and accuse A. S. Taylor with the offense of felony; for that the said A. S. Taylor did, on the 1st day of January, 1904, in the county aforesaid, with force and arms, with intent to defraud said county of Hart in said State of Georgia, falsely and fraudulently ■ alter a liceuse issued by E. Benton, county school commissioner of Bryan county, Georgia, to A. S. Taylor, a teacher, the same being what is commonly known as a license, which authorizes a teacher to contract with the proper officers to teach in the public schools of said State, and authorizing the holder of such license to be paid for such teaching out of the public-school fund, said license as originally issued being for what is known as third grade, authorizing the holder thereof, the person to whom issued, to be contracted with to teach in the public schools in which he may be .employed, for a term of one year from date of issue, the date appearing on said license in the face thereoi as the date of issue being July 1st, 1904, the said alterations so made by said A. S. Taylor being the altering the word ‘third,’ originally appearing before the word ‘grade’ in said license, so as to make it read ‘first,’ and said license at that part thereof to read ‘first grade,’ and altering the word ‘one’ before the word ‘years’ in said license so as to make it read ‘three,’ and thus making said license when so altered read at that part thereof ‘three years,’ and by altering said date appearing in the face of said license as the date of issue of the same, which was originally July 1st, 1904, so that, after said alteration so then and there made by said A. S. Taylor, said license read, in that part of said license, July 1st, 1903, teachers of third-grade license being authorized to teach thereunder only one year from date thereof so as to receive pay from public-school fund received in said • county of Hart less pay for time taught than persons holding first-grade license authorizing them to teach three years from date of said license, said alterations being so made by said A. S. Taylor 'with intent to procure more money from the public-school fund of the said county of Hart, for teaching in the public schools therein, than said Taylor would have been authorized to receive under said license as the same was originally issued, thus with the intent to so defraud said county of Hart.”</p>

Indictment for murder. Before Judge Hímruond. Richmond superior court. March 25, 1905. Neal Williams, colored, was indicted ftf the murder of Mattie Bell Devine. He was convicted and sentenced to imprisonment for life. He moved for a new trial, wbbh was denied, and he excepted. The evidence on behalf of the State was, in brief, as follows: The defendant and deceased lived together in adultery. They sometimes quarreled, and had mutually cursed each other.

<p>Indictment for larceny. Before Judge Henry. Walker superior court. March 28, 1905.</p>

<p>Certiorari. Before Judge Holden. Hancock superior court. March 31, 1905.</p>

Indictment for murder. Before Judge Henry. Walker superior court; March 29, 1905. Roberts was indicted for the murder of his wife, and upon his trial, in February of the present year, he was convicted upon evidence which was wholly circumstantial. He made a motion for a new trial, which was- overruled, and he excepted. The grounds of the motion were: (1-3) That the verdict was contrary to the law and the evidence and without evidence to support it.

<p>Indictment for murder. .Before Judge Lewis. Greene superior court. April 8, 1905.</p> <p>The plaintiff in error was convicted under an indictment charging him with the murder of his wife. The evidence tended to show that she was killed by shots fired from a gun, or gun ami pistol, while she was standing at a well near the house in which she and the accused lived. She was killed in the afternoon of Friday, and the last time they were seen before the killing was about noon on that day, at Webb’s house, about a mile or three quarters of a mile from the scene of the homicide. Webb’s bouse was on H. G. Moore’s place, where the accused was employed as a laborer, and the deceased brought his dinner there that day, as she had been in the habit of doing, and left, saying that she was going back home to do some washing. The accused ate his dinner and left, going towards Moore’s house, which was in a different direction from that in which his wife had gone. Webb testified that while the accused and the deceased were there on that occasion, the accused asked him if he had “known people to kill people and get off.” Nothing had been said before, as to killing anybody. The accused told Webb that he and his wife were “mad,” and had not spoken since Thursday morning. Webb’s wife testified that later they met the accused coming towards them, and that he fell down and said that somebody had killed his wife, and grunted. They went to where she was killed, and found her lying there. There was testimony by two witnesses as to tracks at the place of the homicide, which were found the next morning, and which corresponded with the shoes then worn by the accused. One of these witnesses (H. G. Moore) testified: “I made investigation, next morning, as to signs indicating the place where the person was who did the shooting. . . I saw where he was lying or kneeling down when the shot was fired. It was seven steps from where the woman fell, behind a garden fence and a fig tree. I could see where the grass had been bent down, and it looked like he had been kneeling. I went to where he got over the fence and went on down, and as soon as I got to where I could see his track plain I noticed it. He was sort of pigeon-toed, ■and as soon as I saw the track I told some one to bring him there, and I put his foot in the track. Mr. Ingram had his left foot and I had his right foot. His right shoe was bursted, and when he bore down on it that bore the counter down on the ground, and it made a print; the counter of his shoe went down into the ground. I did not notice the other foot, but I know he walks pigeon-toed. The track and his shoe fitted exactly. . . I saw 15 or 20 tracks; we took the measure of 5 or 6. The tracks were of a pigeon-toed character. . . There was only evidence of one track from what I saw. . . The ground was dry. . . I did not see any tracks in the garden. The garden was grown up in grass. . . The tracks were leading towards my house. . . Going through the place where the killing was is the nearest way to the ferry, nearer than round by the public road, and there are a good many negroes on this place. . . There were probably 50 or 75 darkies over there during that day.” Ingram testified: “ I was on the coroner’s jury; it was held about 10 o’clock in the morning, the next day after the killing. . . I saw where there were tracks in the garden, the way he came and the way he ran back, and the way the woman at the well stood, and the way the party that did the shooting ran. He came up back of the garden and of some figs. . . You could see that the party was standing that did the shooting, and he jumped over the fence. . . There was but one track, and it went in different directions. There was a lot of woods there. He came up from the lower edge of it, and turned and went to the'right, and got to the lower edge of the garden. He came one way and went another.... I went and got the defendant and carried him down where the tracks were. . . He had a shoe that was peculiar, that had a sort of plug out of it, about the size of a silver half-dollar. It was the plug that looked like it had .been cut out. He had on that shoe when I found him. I measured five or six tracks, and the shoes he had on corresponded with these tracks exactly; the little piece in the shoe fitted in the tracks. ■ The little plug being cut out was a very unusual condition: for the shoe to be in. I don’t reckon there is another shoe like it in a thousand. ... I think the patch was on the left -shoe. . . I looked for the tracks after I was sworn on ’the coroner’s jury. . I did not pay much attention to them in the garden. I reckon' we tracked them 200 yards toward the river. . . You could not see the tracks plain in the garden. . . There were a good many negroes out there that day. I only noticed that one track. . . I could not tell whether the tracks in the garden were the same as went down that pasture. We fitted the shoe to the tracks on a galled place about one hundred yards from the garden; you could see a plain track there. I did not examine to see if there were any tracks any nearer the well than the' garden. . . I think these tracks were leading in the direction of Holcomb Moore’s house. . . We followed the tracks until we could not find them any more. We measured four or five, and they fit exactly.” Moore testified, that some weeks after the homicide he found a gun and pistol about a hundred yards from where the accused had been at work on the day of the killing; the gun was hid in a gully, in broom-sedge, and the pistol was near, it. The gun had an empty shell in it. Ingram testified, that when the gun was afterwards shown to the accused, he said it belonged to ,his brother, and that the pistol belonged to Henry Lee; “ he said he had owned the gun or pistol, one.” Henry Lee testifiedj that the pistol belonged to him and the gun to a. brother of the accused; that they were kept, in the house of the mother of the accused, near where the accused lived; that the pistol was kept in a trunk, which was unlocked; that he missed it on Frh day night, and that the last time he had seen it before that night was on :Wednesday night, when he greased it and put,on the trunk, with a rag over it. There was testimony as to a razor cut on the leg of the deceased, made by the accused a short time before the homicide, and that he said it was made accidentally. There was further testimony as to bad feeling between them.. A witness testified that on the day preceding the day of the homi; cide the deceased said she was afraid that John Henry Jackson was going to kill her; that she was afraid of him because he and her husband “ had been in some words.” The accused made a statement to the jury, in which he said that at the time of the killing he was at work in a field near Mr. Moore’s house, about a mile from the place of homicide; and that there had been bad feeling toward him on the part of John Hepry Jackson ; that his wife had told John Henry to quit coming to the house to see her sister; and that about two weeks before the, killing he was told that John Henry had threatened to kill him;-.</p> <p>cited Ga. R. 110/293; 97/212 (3); 50/513; 53/252; 57/482; 110/310; 113/721; 114/10; 121/334.</p> <p>cited Ga. R. 59/738; 63/90; 92/14.</p>

<p>1. No abuse of discretion is shown in the refusal by the court to postpone the hearing of a certiorari case because of lack of opportunity to file a traverse to the answer of the county judge, when it does not appear from the record that the plaintiff in error.did not have such opportunity..</p> <p>2. Previous residence in the .county for six months before serving is a necessary qualification of a grand juror. Disqualification on this ground is propter defectum, and when urged by plea in abatement, before the indictment should be quashed it must affirmatively appear that the accused did not have notice and opportunity to make -the question by challenge before the finding of the 'indictment.</p> <p>S. The evidence admitted was not objectionable for the reason assigned.</p> <p>4. “ Indecently acting,” as used in the Pepal Code, §438, must be taken in its comprehensive sense, and embraces all improper conduct which interrupts and disturbs, a congregation' of persons lawfully assembled for divine wor- . ship.</p> <p>5. Where a congregation assembled for divine worship, after the morning service, had adjourned for dinner, to be served on the church grounds, with, the intention .of returning after the meal to the church house for an afternoon service, in contemplation of the statute'the congregation had not dispersed while partaking of their dinner, but were still assembled for the pur-’ pose of divine worship. ■ •</p>

<p>The evidence warranted the verdict, there was no error in the charges excepted to requiring the grant of a new trial, and the certiorari was properly overruled.</p>

<p>1. Where exceptions pendente lite are filed to the overruling of a demurrer, and are duly certified by the judge whose ruling is complained of, and are entered of record, no further certificate by the judge as to that ruling is required. If the exceptions pendente lite are properly brought to .this court in the transcript of the record, error may be assigned thereon in this court, though no complaint be made in the main bill of exceptions of the ruling complained of in the exceptions pendente lite.</p> <p>2. Therefore, where a defendant demurred to a petition, and the demurrer was heard and overruled by one judge, and exceptions pendente lite to his ruling were duly presented, certified, filed, and entered of record, and the case referred to an auditor, who found adversely to the defendant; and where, at a subsequent term of court, exceptions to the auditor’s report were heard by another judge and overruled, a writ of error to this court, complaining both of the overruling of the demurrer and the overruling of the exceptions to the auditor’s report, duly certified by the judge who heard the latter, will not be dismissed on the ground that it should have been certified by the judge who heard and overruled the demurrer.</p> <p>3. While a judge can not properly certify to'what did not take place before him, he may certify to matters of record in the case before him; and therefore a judge may certify that a bill of exceptions pendente lite was certified, filed, and appears of record in the case, though the ruling complained of by the exceptions pendente lite may have been made by another judge than himself.</p> <p>4. A county is not liable to its sheriff for his costs, allowed by the Penal Code, § 1107, for conducting prisoners before a judge or court to and from jail; but these costs must be collected by the sheriff from the prisoners after ■conviction.</p>

<p>Petition for direction. Before Judge Lewis. Jasper superior court. December 7, 1904.</p> <p>In 1895 W. C. Leverett executed his last will and testament, the fourth item of which is as follows: “ Having heretofore disposed, by deed or otherwise, of all my real estate, I desire and direct that my personal property be divided equally between my wife Fannie J. Leverett, my daughter-in-law Ella Leverett, and her children, my daughter Sallie Pound, and her children, and Bettie Sanders, and her children now or hereafter born, my idea being to divide said personalty into four shares, my said wife to have one, my daughter-in-law and two daughters and their children to have the other three.” Subsequently, in 1898, he executed a codicil, the second item of which is as follows: “ It is my will that the division of my personal property, contemplated and provided for by the fourth item of my said will, shall be made only of my personal property left remaining after my said wife shall have received the personal property given to her by items one and two of said will; that is to say, she shall first receive the property given her in items one and' two, and shall then, receive one fourth of the. remainder or balance of my personal property.” The testator died in 1902, and Mrs. Fannie Leverett and W. A; Reid qualified as his executors. At the time of the execution of the will Mrs. Sanders had two children, Leda and Lyman. Between the time of the execution of the will and the death of the testator both of these children died, Leola leaving no issue and Lyman leaving a wife and child. ■' The executors filed a petition for direction and construction of the items of the will and codicil above quoted, the precise question being whether. Mrs. Sanders, under the facts, was entitled to all of the be-: quest to herself and her children, or whether the heirs of the deceased child were entitled to participate with her as tenants in common. The case was submitted to the judge without the intervention of a jury, and he rendered the following decree: “After argument heard it is considered and adjudged, that Mrs. Elizabeth Sanders takes, under the will of W. C. Leverett, all of the one fourth of the residuum of said personal property devised by item four of said will and item two of the codicil thereto, and that neither the said B. H. Sanders; Annie May Sanders, nor Annie Lee Sauders, minor, take any share or iuterest or part of said residuum or of said estate of said W. C. Leverett. It is further ordered and adjudged that said executor and executrix do pay unto the said Mrs. Elizabeth Sanders all of said one fourth of said residuum, and pay nothing to the said B. H. Sanders, Mrs. Annie May Sanders, or Annie Lee Sanders, minor. It is further considered that the costs of this proceeding be borne and paid by the said executor and executrix as a part of the expenses of administration. This December 7th, 1904.” The exception is to the construction of these two items, given by the judge in his ,decree.</p>

<p>1. The assignment of a fire-insurance policy without the consent of the insurer, after a loss has occurred thereunder, does not render the policy void, but the assignee has the right to bring an action thereon.</p> <p>2. Such an assignment is valid without the consent of the insurer, although the written transfer of the policy purports by its terms to be subject to the consent of the insurer.</p> <p>3. Properly construed, the suit in the present case was upon the insurance policies, and not upon a written adjustment of the loss and a promise in writing by the defendant to pay the amount shown by the adjustment.</p> <p>4. The name, “The Georgia Co-operative Pire Association,” by which the defendant was sued, taken in connection with the allegations in the petition, that “the defendant insurance company or association [had] an agent and a place of doing business in the ” county wherein the suit was brought, and on a named date issued “ its certain policy of fire insurance whereby and by the terms of which it insured against loss by fire ” certain property, imported a corporation; and it was not necessary, even as against a special demurrer, to allege the corporate existence of the defendant.</p> <p>5. An assignment of error in exceptions pendente lite or in a motion for a new trial, that the court erred in refusing to sustain a motion to rule out the testimony of a named witness, does not properly present any question for determination by this court, when the testimony in question is not, either literally or substantially, set forth in connection with the assignment of error in such exceptions or in the ground oE the motion for a new trial complaining of the ruling of the court, and no statement thereof is attached as an exhibit to the exceptions or to the motion.</p> <p>6. In a suit upon a fire-insurance policy, brought by an assignee of such policy against the company which issued it, the defendant can not be held bound by an adjustment of 'a loss sustained under the policy, made after the assignment, between the insurer and the assignor of the policy, unless in such adjustment the assignor acted as the authorized agent of the assignee.</p>

<p>C. executed the following contract: “This is to certify that I have this day bought of [W.] five shares of the capital stock of [a named bank], and in consideration of the price paid, and for value received, I hereby agree not to sell all or any part of the stock at any time, until I have first offered the same to fW.] in writing at the book value of said stock, giving him ample time to accept or refuse the purchase, binding my heirs, executors, and administrators in the above option and agreement.” In a suit by W. against O. for the breach of the contract, Held: (1) The contract was not void for indefiniteness as to the time when it should become operative. (2) It was not unilateral. (3) The allegations of special damage were too general, vague, and speculative to be the basis of a recovery. (4) W. was entitled to recover-.nominal damages only.</p>

Accusation of carrying concealed weapons. Before Judge Clark. City court of Macon. March 29, 1905. An affidavit was made before the judge of the city court of Macon, as a foundation for an accusation charging the defendant with the offense of carrying a concealed weapon, under the act of August 14, 1885, creating the city court of Macon (Acts of 1884-5, pp. 475-6). The defendant was related to the judge of that court.

<p>Action for damages. Before Judge Hodges. City court of Macon. October 1, 1904.</p>

<p>Action for specific performance. Before Judge Holden. Lincoln superior court. November 26, 1904.</p> <p>cited 88 Ga. 321; 104 Ga. 162; 111 Ga. 455; 115 Ga. 408; 116 Ga. 741; 6 L. R. A. 33; 11 Id. 805; 21 Id. 127, 132; 68 Ala. 124; 91 Ind. 151; 90 Mo. 184; 10 West. R. 564; 42 N. W. 962; 73 Ill. 453; 134 Mass. 555; 2 A. K. Marsh. 345; 125 Ill. 85; 1 A. & E. Enc. L. (1st ed.) 438.</p> <p>cited 111 Ga. 455; 43 Ga. 427; 52 Ga. 448; 65 Ga. 657; 101 Ga. 42; 118 Ga. 920; Civil Code, §§ 3675, 5201.</p>

<p>Action for damages. Before Judge Iiolden. Warren superior court. November 1, 1904.</p>

<p>1. Where, in accordance with the provisions of the Civil Code, § 4720, a claim is filed to a fund sought to be reached by summons of garnishment in a suit in attachment, and bond is given to dissolve the garnishment, the claimant becomes, under the Civil Code, § 4723, a party to all subsequent proceed- ■ ings in garnishment, and may take advantage of any defect in the pleadings of his adversary.</p> <p>2. In a suit by attachment in the city court of Lexington, it is necessary to-file a declaration in attachment at the term to which the suit is returnable, in like manner as if the suit were in the superior court. In the absence of such a declaration, any judgment rendered in the suit is a nullity, and may be attacked anywhere.</p>

Certiorari. ' Before Judge Bussell. Franklin superior court. October 1, 1904. • This was a habeas-corpus proceeding for the possession of two minor children, Forest and , Devery Martin, aged respectively seven and four years. It originated in the city court of Carnesville, and was brought by Looney, the macernal grandfather of the children, against their father.

<p>Equitable petition. Before Judge Gober. Fannin superior court. January 26, 1905.</p>

<p>Action for damages. Before Judge Eite. Whitfield superior court. October 14, 1904.</p>

Action for damages. Before Judge Henry. Walker superior court. September 2, 1904 Tbe Richmond Hosiery Mills, a corporation having its principal office at Rossville in this State, brought suit against the Western Union Telegraph Company, alleging in brief as follows: Plaintiff is engaged iu the manufacture of cotton hosiery, and uses large quantities of cotton yarns and other fabrics.

<p>1. A petition which alleges the ability of the parties to contract marriage, the mutual promises to marry and their terms, and the defendant’s breach sufficiently states a cause of action for breach of promise of marriage.</p> <p>2. Seduction of the plaintiff by the defendant subsequently to the promise to marry and pending the engagement may be alleged and proved in aggravation of the damages.</p> <p>3. The damages recoverable in this form of action may include full compensation for the pain, mortification, and wounded feelings of the plaintiff, and in these matters the amount of recovery must be left to the enlightened conscience of impartial jurors.</p> <p>4. Neither party to an action for breach of promise of marriage is a competent witness.</p> <p>6. A charge to the effect that the plaintiff may recover on proof of the contract of marriage and its breach by the defendant is open to the criticism, that it excludes the defense of a justifiable refusal to consummate the promise to marry.</p>

<p>Complaint. Before Judge Clark. City court of Eorsytb. October 28, 1904.</p> <p>This was an action by an adult daughter against the administrator of her father’s estate, to recover for services rendered her father in nursing and caring for him. during his last illness, and in doing other work on his farm and in his house. There was a verdict for the plaintiff, and a new trial was granted. The next trial also resulted in a verdict for the plaintiff, and the defendant made a motion for a new trial on the grounds, that the verdict was without evidence to support it, and that the court allowed answers to certain interrogatories to be read, over an objection that the questions were leading. The motion was overruled, and the defendant excepted.</p>

Complaint. Before Judge Russell. Pike superior court. October 6, 1904. Joseph D. Boyd Manufacturing Company sued_ A. D. Riggins, as trustee for his wife, M. S. Riggins, on a promissory note, for $210.87 principal, which he as her trustee had executed to it, dated February 25, 1901, and due October 15 after date.

Action for damages. Before Judge Hammond. City court of Griffin. December 5, 1904. Steele sued the Central of Georgia Railway Company, alleging that be had received an injury while endeavoring to pass under a bridge of that company, extending over a public highway in the city of Griffin. According to his testimony, he went to Griffin driving a wagon loaded with cotton, two bales being placed on the wagon and a third on top of them, he being seated on the top bale.

<p>1. In the absence of a legal return of service, the court is without jurisdiction to render a judgment by default.</p> <p>2. Where an entry of service which failed to show that the defendant had been served was cured by amendment at the trial term, it was error to refuse to allow the defendant to demur and plead instanter to the suit.</p>

<p>Petition for injunction. Before Judge Reagan. Fayette superior court. February 4, 1905.</p>

<p>Ejectment. Before Judge Lewis. Laurens superior court. ■July 28,1904.</p>

' Ejectment. Before Judge Lewis. Laurens superior court. October 3, 1904. Norman T. Gay brought an action of ejectment in the common-law form against Warren and Conner, to recover possession of a lot of land in the 12th district of Laurens county, and mesne profits.

<p>Money rule. Before Judge Lewis. Baldwin superior court. January 9, 1905.</p>

Equitable petition. Before Judge Lewis. Greene superior court. December 31, 1904. Joshua O’Neal filed an equitable petition against Edith Mc-Whorter and her guardian, B. E. McWhorter.

<p>Action for damages. Before Judge Lewis. Morgan superior court. December 19, 1904</p>

<p>Action for damages. Before Judge Burch. City court of Dublin. December 13, 1904.</p>

<p>Where suit was brought to recover a debt originally due to a man since deceased, the plaintiff claiming the right to recover under the Civil Code, § 3355, par. 1, as the widow of the deceased on whose estate there was no administration, and whose debts she had paid; and where on the trial it appeared from her evidence that she had paid some of her husband’s debts before bringing the suit and some afterwards, a nonsuit was properly granted.</p>

<p>Levy and claim. Before Judge Littlejohn. Marion superior court. October 25, 1904.</p>

<p>Trover — nonsuit. Before Judge Baines. City court of Dawson. October 18, 1904.</p> <p>Cited, as to nonsuit: Ga. R. 43/323; 79/354; 1/381; 2/119; 79/136; 107/806; 115/378; 28 Am.,& Eng. Ene. L. (2d ed.) 705-6, 712,686-7.</p>

<p>Foreclosure of lien. Before Judge Baines. City court of Dawson. September 7,1904.</p>

Equitable petition. Before Judge Spence. Terrell superior court. December 2, 1904. Mrs. Mabel C. Strickland brought suit against the executors of S. T. Jordan, deceased, to recover a legacy claimed under the will of S. T. Jordan.

<p>Levy and claim. Before Judge Littlejohn. Lee superior court. August 1, 1904.</p>

Complaint. Before Judge Littlejohn. Webster superior court. October 3, 1904. Mrs. Lizzie Harrell brought suit against the administrator of the estate of D. B. Harrell, upon two promissory notes, each signed by D. B. Harrell, one for $500, payable to John Harrell or order, and the other for $1,000, payable to the order of the plaintiff.

<p>Action for damages. Before Judge Crisp. City court of. Yienna. October 20, 1904.</p>

<p>Complaint. Before Judge Crosland. City court of Albany. September 13, 1904.</p> <p>The Hercules Manufacturing Company brought suit, in the city court of Albany, against the Albany Pine Products Company, upon an open account. The process was returnable to the May term, 1904, and was duly served upon the defendant. At the trial term the plaintiff made a written motion to strike the defendant’s plea, upon the following grounds: “First: Said plea was not filed at the first term of said court, as required by section 5052 of the Code of 1895; said plea was not filed in said case until after said court had fully and completely adjourned. Second: Defendants then sought to file said plea after said court had adjourned as above stated, by an order of said court (R. Hobbs) which now appears on the foot or bottom of said plea, authorizing the filing thereof. Third: Plaintiffs aver that said order admitting said plea to be filed as aforesaid is a nullity; that the said court had no legal right or authority to pass such an order admitting and authorizing said plea to be filed at said time and thereby opening said case which had gone by in default.” Upon the hearing of the motion to strike the plea the deputy clerk testified as follows: “The May term, 1904, of said court convened at about nine o’clock a. m. on the 9th day of May, 1904, and was in session for only about two hours, dur.ing which time tbe appearance docket was called, his honor, Richard Hobbs, now deceased, then judge of said court, presiding ; and at about eleven o’clock a. m. of the same day the court took a recess to the 23d day of May, 1904, said Hobbs, the then judge of said court, announcing from the bench that the court would take a recess until the 23d day. of May, 1904; that during the afternoon of said day, May 9th, 1904; he was handed the plea in said ease, with the following order, in the handwriting of the then judge of said court, at the bottom of the same: ‘Ordered filed May 9th, 1904, Richard Hobbs, Judge C. C. A.,’ which he filed in office on said 9th day of May, 1904; and that at the time said plea and order were filed the costs which had accrued in said case were not paid, and have not yet been paid; that the docket of said court shows said case first to have been marked ‘in default, May Term, 1904,’ and then the words ‘ in default ’ stricken out, and the words ‘ Plea filed, May Term 1904,’ written on the docket, opposite said case; all in the handwriting of said Judge Htffibs, and that he did not know when said entries were made by Judge Hobbs on said docket.” Upon this evidence the court sustained the motion to strike the plea, and the defendant excepts.</p>

<p>C and Í enter into a written contract whereby C agrees to sell to S' a certain number of cattle at a stipulated price and is to receive a stated advance on the purchase-money, and C further agrees to pay a certain amount as liquidated damages in case he fails to comply with his agreement. After the signatures to the contract appears the following, “We, the undersigned, ' guarantee the fulfillment of the above contract,” which is signed by W. The obligation of W, resting on no independent consideration, is that of surety.</p>

<p>Indictment for attempt of arson. Before Judge Holden. Taliaferro superior court. April 8, 1904.</p>

<p>Complaint. Before Judge Mitchell. Brooks superior court. December 9, 1904.</p>

<p>Action for damages. Before Judge Hodges. City court of Macon. December 19, 1904.</p>

<p>Application for partition. Before Judge Holden. Warren superior court. October 6, 1904.</p>

Complaint for land. Before Judge Holden. Oglethorpe superior court. October 18, 1904 On September 2, 1869, Sarah Finch made to John F. Smith a deed to certain land in Oglethorpe county known as the “William Finch tract,” the consideration expressed in the instrument being the natural love and affection which the grantor had for his wife, Mary A. Smith, and their children, as well as the sum of five dollars in hand paid by John F. Smith.

<p>Petition for injunction. Before Judge Fite. Murray superior court. January 21, 1905.</p>

<p>Intervention. Before Judge Russell. Pike superior court. October 3, 1904.</p> <p>The Barnesville Savings Bank, upon the petition of Rogers and others as creditors, was placed in the hands of a receiver. While this case was pending, the Savings Bank filed an application in the superior court, in which the following allegations were in substance made; Since the bank was placed in the hands of a receiver the bank has become solvent and able to pay its debts. The bank has perfected plans for a reorganization and its capital stock has been subscribed for anew by solvent persons, and the bank will be reorganized under its present charter as soon as the receiver is discharged. A list of subscribers and the amounts of their subscriptions were set forth. As soon as the bank is reorganized, debts due it, amounting to $69,000, will be paid to it. The depositors in the bank have agreed to take $20,000 of the preferred stock of the Barnesville Manufacturing Company, a •corporation which was a debtor to the bank in a large amount, as a credit on their respective deposits. Unless the bank is reorganized the debts due it above referred to will be lost. All of the depositors in the bank, except a few whose deposits amount to' about $6,000, have signed an agreement, by which they agree to accept preferred stock as above indicated as a credit on their deposits, and then to take ten per cent, of their deposits in cash, and the remainder in two equal payments. The bank tenders a bond in the sum of $50,000, conditioned to pay the depositors the amount of their deposits in accordance with such agreement. The bank has arranged to discharge all other debts due other persons. It is to the best interests of all parties concerned that the receiver be discharged by the court and the bank turned over to its stockholders, so that it can be reorganized; for in this way the debts due the bank will be paid, a new capital stock will be paid in, and. a bond in the sum of $50,000 given for the protection of the depositors who are parties to the agreement; whereas if the reorganization is not allowed to take place, the creditors of the bank will probably not receive more than twenty cents "on the dollar. The prayer was that the receiver be discharged and ordered to turn over to the bank and its stockholders all its assets and effects in his hands. The agreement referred to in the application was exhibited to the court. In it certain depositors, through their representatives, agreed to the reorganization scheme set forth in the application of the bank, and pledged their efforts to secure a dismissal of the receivership proceedings as well as of a similar proceeding against the Barnesville Manufacturing Company in the' Federal court, upon condition that the bank would give bond as set forth in the application. ' Upon consideration of the application and agreement, the court passed an order, reciting that, “ after hearing evidence and argument upon the foregoing motion, and considering the agreement of the depositors and creditors of said bank,” it is ordered, “ upon consent of all parties, that the motion be sustained, the receiver discharged, the case dismissed, and the assets and effects of the bank surrendered to it.” Thereafter the bank received its assets and effects, undertook to put in operation the scheme set forth in its motion, and proceeded to do business under the name of the Peoples Bank of Barnesville, the charter having been amended as to the corporate name. The charter was subsequently amended so as to change the liability of the stockholders. The scheme failed, the bank made an assignment, and a second application for receiver was made by certain of the creditors of the bank. In this proceeding W. G. Tyus and W. M. Rice & Son intervened and asked to be made parties. They alleged that they were depositors of the Barnesville Savings Bank, set forth the facts in' reference to the management of the bank’s affairs and the receivership above set forth, averred that they were not parties to the application for a surrender of the assets of the bank under the original receivership, that they were not among the creditors of the bank who consented to that scheme, that the receivers had in their possession sufficient assets of the bank to pay the intervenors’ demands in full, and prayed that in the distribution of those assets they be allowed priority over those creditors who consented to the alleged scheme of reorganization. The receivers demurred to and answered the intervention. The court overruled the demurrer; and, the case having been submitted to the judge without the intervention of a jury, he granted an order requiring the receivers to pay in full the demands of the intervenors before payment was made to other creditors who were parties to the agreement above set forth. It appeared from the evidence, that the intervenors were not parties in any way to the scheme of the bank or to the motion under which its assets were surrendered to it, that the averment in the motion that the bank was solvent and able to pay its creditors was untrue, and that there was in the hands of the receivers a sufficient amount of the assets of the bank to pay the claims of the intervenors, though not enough to pay all the other creditors of the bank. The receivers excepted to the orders overruling the demurrer and requiring them to pay the claims of the intervenors. The contest is between depositors of the bank who did not consent to the alleged reorganization scheme of the bank and creditors who were instrumental in securing an order releasing to the bank its assets.</p>

<p>Complaint. Before Judge Littlejohn. Dooly superior court. October 19, 1904.</p>

<p>Complaint. Before Judge Crisp. City court of Yienna. December 3, 1905.</p>

Equitable petition. Before Judge Littlejohn. Lee superior court.

<p>The evidence offered to establish the fact that the fire was communicated to the property of the plaintiff by the engine of the defendant was entirely circumstantial, but was of such a character as to authorize a finding that the fire was so communicated. If this fact were established, the law would raise a presumption 'that the defendant was negligent, and it was error to grant a nonsuit. c</p>

<p>Motion to vacate order. Before Judge Spence. Dougherty superior court. October 7, 1905.</p> <p>On January 17, 1902, the directors of the Commercial Bank of Albany filed a petition in the superior court of Dougherty county, alleging that the institution was financially embarrassed and unable to meet its obligations, and praying for a receiver to take charge of its assets and wind up its affairs. The court appointed one of the directors, Morris Weslosky, receiver, and he entered upon the discharge of his duty as such and' took possession of the assets of the bank. Some twenty-six months thereafter, on March 15, 1904, pending the receivership, S. J. Quarter-man and other stockholders of the bank presented to the court a petition in which they set up the following facts: Some time prior to the suspension of the bank its directors, in violation of the provisions of the Civil Code, § 1914, made large loans to the officers of the bank, without good security. Among the loans made was one to Carter & Woolf oik, a partnership composed of the president of the bank, who was also one of the members of its finance committee and a director of the bank, amounting to the sum of $19,503.77; another loan of $2,318.21 to this director individually, and one of $5,851.89 to his wife; a loan of $5,250 to the wife of the bank’s president; a loan of $1,579.04 to its cashier, who was a director and a member of the finance committee, and another of $4,279.07 to an insolvent corporation the stock of which was mostly owned by him and another director; still another loan to Morris Weslosky, the vice-president, a director and a member of the finance committee, of $1,000, and one of $3,500 to him in the name of the Albany Grocery Company, under which name he conducted business; and yet another of $3,500 to a partnership composed of his father and another of the bank’s directors, as well as a loan of $1,000 to a firm of which still another of the directors was a member. These loans amounted in the aggregate to more than 25 per cent, of the capital stock of the bank, and one of them to more than ten per cent, thereof, as did also another loan mentioned. Other loans were made to certain relatives of the officers and directors of the bank in violation of law, and also to numerous persons on scarcely any security, and sometimes without any security at all. Large overdrafts were also permitted, the greater part of which still remain uncollected. The affairs of the bank, as now ascertained, are such that it is probable the depositors and general creditors will be paid in full, but the stockholders will receive nothing, but will lose the entire value of their holdings. Gross misconduct and neglect in the management of the affairs of the bank was charged against its officers and directors, amounting not only to a breach of the duty they owed' to its stockholders, but to a violation of the penal laws of this State. It was alleged, that, as a result of such malfeasance and misfeasance, the directors were liable to account for the monies lost and diverted by their misconduct; that the court’s receiver, Morris Weslosky, who had been vice-president of the bank, one of its directors and a member of its finance committee, was himself liable with his codirectors for the wrongs committed by them, and was not in a position either to sue himself or to prosecute with vigor against his fellow wrong-doers an action in behalf of the corporation; and that it was accordingly the right of the petitioners, in behalf of themselves and other stockholders at interest, to proceed against the directors and enforce against them the personal liability they had incurred to the corporation. Petitioners prayed that they be allowed to so proceed, any fund realized as a result of the action to be subject to the further order of the court.</p> <p>The court granted an ex parte order permitting petitioners to institute an equitable proceeding against the directors of the bank, including its receiver, Weslosky, as prayed, and to join as a party thereto the corporation, either as a plaintiff or as a defendant, in order that it might become bound by the final decree. After the filing of the suit so authorized, Morris Weslosky and John Mock, who were duly made defendants, appeared before the court and presented a written motion to vacate the ex parte order above referred to, on the ground thau it had been improvidently granted, in that petitioners w'ere without right to legally or equitably maintain such an action. This motion was overruled, and movants excepted.</p>

<p>Motion to dismiss the writ of error.</p> <p>Anderson sued the Albany and Northern Railway Company, and the court granted a nonsuit. The plaintiff excepted. A motion to «dismiss the writ of error was made on the ground that the bill of exceptions had not been served in the manner prescribed by law. The only evidence of service was an entry upon the bill of exceptions, of which the following is a copy: “ I have this day served the Albany and Northern Railway Company with a true copy of the within bill of exceptions, by leaving such copy at the most notorious place of abode of J. S. Crews, who is the agent, vice-president, and general manager of the said Albany and Northern Railroad Company at Albany, Ga. This November 11, 1904. Wm. Godwin, Dpt. Shff.”</p>

<p>Petition for injunction. Before Judge Spence. Decatur superior court. March 29, 1905.</p>

<p>1. When a bill of exceptions purports to contain an extract from the record in the case, and the same is at variance with what is contained in the transcript of the record duly certified by the clerk, the latter will control as to what is the true record in the case.</p> <p>2. A process issued by a named person as “ clerk,” who is clerk of the superior court, bearing test in the name of the judge of that court, and requiring the defendant to appear “at the next-court to be held” for a given county on a day when a regular term of the superior court of that county is required by law to be held, is a valid process of the superior court, and needs no amendment. This is true notwithstanding the person signing the process as “clerk” is also clerk of the county court of that county and that court has a regular term beginning on the day when the defendant is required to appear.</p>

<p>Equitable petition. Before Judge Mitchell. Berrien superior court. September 22, 1904.</p> <p>George H. Fletcher brought an equitable petition against Joe Fletcher, and a demurrer was filed by the defendant. The petition was amended, and, as amended, alleged substantially, that the petitioner was the true and lawful owner and in the possession of a certain described tract of land; that the defendant, unlawfully and without authority from petitioner, had entered upon the land and commenced cutting the sawmill timber thereon with the intention of cutting and carrying away all of the sawmill timber upon the described tract of. land; that petitioner claims title to the land and timber by virtue of a deed from James H. Fletcher to himself, dated January 9, 1902; that the defendant claims title to sixty-five acres of said described land by reason of a deed from J. P. and Tucker Mauldin; that J. P. and Tucker Mauldin claim title from J. L. Fletcher, who claims title from James H. Fletcher, petitioner’s grantor; that the deed from James H. Fletcher to J. L. Fletcher was never delivered to J. L. Fletcher, but was by him fraudulently obtained from the wife of James H. Fletcher by false and fraudulent representations to her that his father, James H. Fletcher, had directed and requested that she deliver the deed to him; and that, relying upon this statement of J. L. Fletcher, Caroline Fletcher, wife of James H. and' mother of J. L. Fletcher, delivered the deed to him; that James H. Fletcher never directed that the deed be delivered to J. L. Fletcher, and never ratified the delivery which was made by his wife; that on the day following the delivery of the deed to J. L. Fletcher, and as soon as he ascertained the fact, James H. Fletcher demanded of J. L. Fletcher the return of the deed, and was informed that J. L. Fletcher had sold a portion of the land described in the deed to J. P. aud Tucker Mauldin, and had delivered the deed to them, whereupon James H. Fletcher demanded of the Mauldins a return of the deed and at the same time informed them that the deed had never 'been delivered by him to J. L. Fletcher; that the Mauldins returned the deed to James H. Fletcher, and it was destroyed by him. It was further alleged, that at the time of the return of the deed to James H. Fletcher and its destruction by him, J. L. Fletcher had not conveyed the land to the Mauldins, but that they had actual notice, at the time deed was made to thfem by J. L. Fletcher, that he had fraudulently procured possession of the deed from James H. Fletcher; that the defendant also had actual notice that J. L. Fletcher had never had title to the land at the time he, the defendant, purchased it from J. P. and Tucker Mauldin; that petitioner went into possession of the land immediately upon receiving his deed from James H. Fletcher, which deed was upon a fair and valuable consideration, and that he still is in possession of the same; that the title claimed by Joe Fletcher is a cloud upon petitioner’s.' title; and that the defendant is'insolvent. The prayer was, for the cancellation of the deeds from J. H. Fletcher to J. L. Fletcher, from J. L. Fletcher to J. P. and Tucker Maul-din, and from J. P. and Tucker Mauldin to the defendant; and that the defendant be restrained from interfering with the timber on said land or with the plaintiff’s possession. The demurrer was upon the ground that the allegations in the petition, taken together with the alleged abstract of title, failed to show that the plaintiff had sufficient title to the lands described in the petition to entitle'him to the relief prayed. The demurrer was sustained, and the plaintiff excepts.</p>

<p>Equitable petition. Before Judge Mitchell. Berrien superior court. September 22, 1904.</p>

<p>Application for year’s support. Before Judge Mitchell. Brooks superior court. November 8, 1904.</p>

Action for damages. Before Judge Mitchell. Brooks superior court. December 9, 1904. This case originated in the county court of Brooks county, and was appealed to the superior court. Eyals brought suit against the South Georgia Eailway Company, alleging that the defendant had damaged him in the sum of $70, besides interest, by killing certain cattle and a hog which were described in an account attached to the declaration.

<p>1. Where an equitable petition was filed, seeking specific performance of a parol contract to convey a tract of land, alleging possession and improvements made by the plaintiffs thereon, an amendment was properly allowed which alleged that the land included in the contract was inadvertently misdescribed'in the original petition, and that instead of being the east half of a certain lot, containing 245 acres, more or less, it included the entire lot, containing 490 acres, more or less.</p> <p>2. Where a husband and wife alleged that the defendant had contracted with them jointly to convey a certain lot of land, and that they had taken possession of it and placed permanent improvements upon it, and prayed that he be required to execute a deed to them, and the defendant denied the existence of such a contract, it was error for the court to charge that the wife claimed one half of the lot and the husband the other half, and to submit to the jury separately the rights of the two as to the respective halves.</p> <p>3. This is true although there was some evidence indicating that the wife’s claim against the defendant originated on. account of services rendered to him, or on account of her interest in other lands, and that m connection with this claim the defendant agreed that if the husband would buy the tract of land in dispute and pay the expenses incident to the purchase, he would make them both a deed, and that the purchase was made, possession taken, and improvements made accordingly, and although the defendant testified that the husband had no connection with the purchase of one half of the lot and only acted for him as a matter of accommodation in making inquiry as to the other, and although the defendant expressed a willingness to make a deed to the wife conveying a life-estate on account of her services or interest in the other tract of land.</p>

<p>Illegality. ' Before Judge Mitchell. Thomas superior court. January 11, 1905.</p>

<p>1. Where several executors of a will have qualified, the joint act of all of them is necessary to execute a special trust created by the will.</p> <p>2. Where one of several coexecutors executes a deed which depends for its validity upon the signature of all, the heirs of the estate will not be held to have acquiesced in his unauthorized act, where there is no evidence that actual notice of the execution of the deed was ever brought home to them and the deed is not- recorded until after the execution and record of a later deed by an administrator de bonis non of the estate.</p> <p>3. A party who gives notice to bis adversary that the depositions of a named witness will be taken at a given time and place is under no legal obligation to appear at the place and time stated and take the depositions. If the opposite party, after complying with the notice, desires the evidence of the witness for himself, he must on his own-part give notice to his adversary as required by the law relating to the taking of depositions. He may not “ cross-examine ” a witness who has never been examined in chief, and introduce in evidence the depositions so taken.</p>

<p>Action for damages. Before Judge Roberts. Pulaski superior court. December 27, 1904.</p>

<p>Complaint for land. Before Judge Holden. Wilkes superior court. November 8, 1904.</p> <p>On August 25, 1861, Seaborn Callaway died, leaving a will which contained the following provisions: “ Item 2. I wish all my property kept together and used as I have used the same during the life of my wife, she to have the privilege, with the consent of my executors, of giving off to my children, as they become of age or marry, such parts as she and they may select, to be accounted for in the final division, as shall be also what I have given heretofore to any of my children. Item 3. At the death of my wife, I wish my property equally divided between my children. . . Item 5. If any of my children die without leaving children, I wish the share given to them by this will to revert to my other children. . . Item 7. In the event of my wife’s marriage, I wish her to have an equal part of my estate set off to her, which shall at her death revert to my children under the above limitations.” The will was duly probated on September 9th of the same year, and letters testamentary issued to Simeon Parker Callaway, one of the executors therein named, who was á son of the testator. The property of the estate was kept together until the year 1866, when Mrs. Callaway, the widow of the testator, intermarried with one William Bryant and gave notice to the executor of her election to take dower. The executor thereupon presented a petition for direction to the judge of the superior court of Wilkes county, reciting in the petition that Mrs. Callaway had remarried and had elected to take dower, and stating various reasons why it was no longer practicable to carry out the intention of the testator of keeping the property together for the support of his family. The executor also set forth the names of the children interested in the estate, some of whom were minors, and stated that one of the adult beneficiaries under the will, Martha- L. Callaway, had married Henry E. Spratlin. Included among those alleged to have attained their majority was the name of Marshall S. Callaway. By an order passed at chambers the judge appointed Spratlin as guardian ad litem to represent the minor children, and he accepted the appointment, and, in his representative capacity, signed a written consent that the judge might at chambers render such decree as he might deem proper under the petition, and might decide any issue of fact that might be raised by any of the parties at interest. This written consent appears to have been signed by Spratlin in his individual capacity also, and by all of the children who the petition alleged were adults, except the wife of Spratlin, formerly Martha L. Callaway, and the executor. It was also signed by the testator’s widow, Mrs. Bryant, and by William Bryant, with whom she had intermarried. At chambers, on December 13, 1866, the judge passed an order which recited that “ the parties interested ” had requested that he should “ decide the various matters presented in said will,” and which directed the executor to sell at public sale, in the same manner as executors usually sell, “ all the property of [the testator] except so much as may be set off for the widow’s dower.” The executor was also, by this order, given instructions as to how to make distribution of the proceeds of the sale. The land belonging to the estate was brought to . sale by the executor under this order, was bid off by Samuel Barnett, and on February 5, 1867, the executor made to him a deed. The purchaser at the sale subsequently conveyed the land to Gabriel Toombs, and from him it passed, by a chain of deeds made by persons claiming under him, to Barnett Irvin, to whom it was conveyed on January 6, 1886. The conveyances last referred to purported to convey a fee-simple estate in the land, Samuel Barnett having on January 9, 1867, prior to the executor’s sale, secured a deed from William Bryant and his wife, formerly Mrs. Callaway, to that portion of the tract which she claimed as dower. The portion so claimed as dower was run off and platted by commissioners, she took possession of it as her dower, and it was so treated by all persons concerned, though no order of court formally setting it apart as dower appears of record. Barnett Irvin and his predecessors in title under the executor’s sale and the deed conveying the dower interest remained in undisturbed possession of the land up to the time of the death of Mrs. Bryant, which occurred in December, 1898. - On January 12, 1900, Simeon Parker Callaway, Marshall S. Callaway, and others claiming under the will of Seaborn Callaway, brought against Barnett Irvin an action to recover the tract of land which Mrs. Bryant had claimed as dower. Soon thereafter Barnett Irvin died, and his administrator, Charles E. Irvin, was made a party defendant in his stead. The defense interposed was: (1) title derived from Samuel Barnett; (2) title by prescription, and the making of valuable improvements on the land; (3) a denial that dower was ever set apart to the widow of Seaborn Callaway ; and (4) estoppel, operating against Simeon Parker Callaway, from asserting title to the premises, he having, in his capacity of executor of Seaborn Callaway, conveyed the land by absolute deed to Samuel Barnett, the defendant’s predecessor in title. The case was tried by the court without the intervention of a jury, upon an agreed statement of facts, and judgment in favor of the defendant was rendered. The case was then taken to the Supreme Court for review, but was there dismissed for want of prosecution.</p> <p>The present action is a complaint for land, brought by Marshall S. Callaway on October 3, 1903, against Charles E. Irvin, as administrator of Barnett Irvin, to recover a one-seventh undivided interest in the tract of land in which the plaintiff’s mother, Mrs. Bryant, claimed a dower estate. In addition to the defenses interposed to the previous action to which the plaintiff was a party, the administrator filed a plea of res judicata. By an amendment to his petition the plaintiff alleged that the order under which the land was sold at executor’s sale was void for want of jurisdiction on the part of the judge of the superior court to pass it in vacation without the written consent of all parties at interest, and the sale was attacked on the ground that it was not made in conformity to.the order, and for other reasons. The case proceeded to a trial on the merits, and resulted in the direction of a verdict in favor of the defendant. Exception is taken by the plaintiff to the disposition thus made of his case.</p>

Action for damages. Before Judge Reagan. Monroe superior court. October 1, 1904. The plaintiff below, Carrie White, brought an action against the Southern Railway Company to recover damages for the homicide of her son, Titus White, who at the time of his death was nineteen years of age.

<p>Illegality. Before Judge Lewis. Jones superior court. January 9, 1905.</p>

<p>Foreclosure of lien. Before Judge Crisp. City court of Americus. January term, 1905.</p>

<p>Certiorari. Before Judge Littlejohn. Dooly superior court. October 29, 1904.</p>

Complaint. Before Judge Spence. Dougherty superior court. October 4, 1904 A. C. Gortatowsky et al. brought suit against the Central of Georgia Railway Company for the sum of $552. On the trial the evidence showed, without conflict, the following facts :, I. C. Brinson was the commercial agent of the defendant at Albany. His duties were to solicit business. He did not have authority to make contracts for special rates on its behalf, and this was known to the plaintiffs.

Ejectment. Before Judge Mitchell. Lowndes superior court. November 24, 1904. This was an action of ejectment in the common-law form. The plaintiff laid three demises, in the names of A. H. Smith, N. J. Priester, and Sophia Priester respectively. Thomas Melton was the tenant in possession. The ease went to trial on the issue made by the plea of not guilty. The plaintiff introduced in evidence a deed from N. J. Priester to Sophia Priester, conveying the premises in dispute.

Equitable petition. Before Judge Mitchell. Lowndes superior court. November 22,. 1904. This case arose upon a petition brought by T. M. Talbot against the Savannah, Florida and Western Railway Company, to enjoin it from selling a certain mare under a claim of lien, as provided by the Civil Code, §§ 2303, 2304, for freight charges.

<p>1. Inasmuch, as the law imposes liability upon a common carrier when a delivery of freight is made by mistake to a person not entitled to receive the same, it is the right of the carrier to call upon an unknown person claiming a shipment to identify himself and establish his 'Claim thereto ; and where a bill of lading covering the shipment has been issued, the carrier may demand its production as a condition precedent to making delivery.</p> <p>2. The charge of the court was in accord with the law as above announced, and fully and fairly presented to the jury the issues they were called on to determine, notwithstanding some slight verbal inaccuracy of expression.</p> <p>3. Though the court, in passing upon a demurrer to the plaintiff’s petition, may have erroneously held he was not entitled to recover punitive damages in the event he established his alleged cause of action, the error so committed does not constrain the ordering of another trial, the jury having found upon ample evidence that the defendant railway company had not committed any breach of its duty as a common carrier.</p>

Appeal. Before Judge Mitchell. . Brooks superior court. December 9, 1904. Hines sued Redfearn in Brooks county, and the defendant filed a plea to the jurisdiction, averring that he was a resident of Thomas county. The trial of this issue resulted in a finding against the plea, and a verdict was rendered against him on the merits of the case. The defendant made a motion for a new trial, which was overruled, and he excepted.

Action for damages. Before Judge Humphreys. City court of Moultrie. December 30, 1904. Owens sued the railway company, alleging in his petition: Plaintiff went to defendant’s- passenger station in the- city of Moultrie, to await the arrival of a friend upon one of the defendant’s trains.

<p>1. Where the entire description of land sold, as contained in a bond for title, was “ 333 acres of land in the southeast corner of lot of land No. 416 in the 11th district of Lowndes county,” the number of acres was of the essence of the description; and if it developed that in fact the land delivered by the obligor to the obligee contained only 225 acres, the latter was entitled to a reduction in the price accordingly. This was not such a sale by the tract or entire body as is contemplated in the Civil Code, § 3542.</p> <p>2. No point was raised or decided in the trial court as to the sufficiency of the description contained in the bond. Moreover, the plaintiff was suing the defendant upon a note given for the purchase-money of the land covered by the bond.</p> <p>'3. A party to a suit is not entitled to a new trial because of an error in his favor.</p> <p>4. In an equitable proceeding the jury may recommend to the court the assessment of costs upon the respective parties, but are not authorized to determine against which party they shall be taxed. The presiding judge is to determine this, in the use of a sound discretion.</p> <p>5. Where the verdict of the jury in an equitable action found in favor of one of the parties, and added that each party pay one half of the costs of suit, and no special exception was taken to that part of the verdict, or reference made to it in the brief of counsel, this court will treat it as being a mere recommendation to the presiding judge, which he may or may not follow in his discretion.</p>

Trover. Before Judge Mitchell. Thomas superior court. January 6, 1905. Sampson brought an action against Charles and S. M. Wolff to recover possession of eight pine store counters, “ one low down syphon water-closet,” and fixtures consisting of water pipe, lead and screws, seven gas fixtures and chandeliers, one lot of pine partitions, and pine office railings and posts, all alleged to be of the value of $318.50.

<p>Motion for new trial. Before. Judge Mitchell. Colquitt superior court. January 12, 1905.</p>

<p>1. Where a policy of fire insurance contained a stipulation that it should be void “.if the subject of insurance be a building on ground not owned by the insured in fee simple,” but at the time the application for insurance was made the company, through its agent, knew that the applicant did not own the land on which the building sought to be insured was situated, it will not be heard, in defense to an action on the policy, to set up the non-compliance of the plaintiff with this condition of the contract.</p> <p>2. Limitations in an insurance "policy upon the authority of the agent of the company to waive the conditions of the contract of insurance are to be treated as referring to waivers made subsequently to the issuance of the policy. Mechanics Ins. Co. v. Mutual Bldg. Asso'n, 98 Ga. 266, approved and reaffirmed.</p>

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

<p>Complaint. Before Judge Griffin. City court of Yaldosta. Eebruary 4, 1905.</p>

Equitable petition. Before Judge Roberts. Telfáir .superior court. October 17,1904.

Foreclosure of mortgage. Before Judge Barker. Wilcox superior court. September 20, 1904. Schmidt commenced a proceeding against Mitchell, in Wilcox superior court, to foreclose a mortgage. The defendant answered, showing cause against the foreclosure. The case will be found reported in 117 Ga. 6.

<p>Certiorari. Before Judge Roberts. Irwin superior court. October 28, 1904.</p>

<p>1. A deed to laud, made in fraud of the rights of creditors, is not void ab initio, hut is only voidable at the instance of the creditors; and such a deed conveys title as against any one not affected by the fraud.</p> <p>2. This court will not reverse a judgment overruling a motion for a new trial on the ground of error in the refusal of the trial court to allow stated questions asked, when it does not appear from the motion that the trial judge was informed what the answer to the questions would be.</p> <p>3. It was not error to charge, in effect, that if a party goes into possession of land under a parol purchase and afterwards surrenders the land without ever having paid any of the purchase-money, his possession will not inure to his benefit as against the one from whom he purchased.</p>

<p>Ejectment. Before Judge Eoberts. Irwin superior court. December 28, 1904.</p>

Habeas corpus. Before Judge Gober. Cobb superior court. March 25, 1905. Littlejohn applied for a writ of habeas corpus, to be directed. to Stells, alleging that the latter was holding him in custody in violation of law.

<p>Conviction of manslaughter. Before Judge Henry. Walker superior court. March 29, 1905.</p> <p>John Gossett was indicted for the murder of John Doner. He was found guilty of voluntary manslaughter, moved for a new trial, and, upon its refusal, excepted. The evidence for the State showed, in brief, the following facts: The defendant killed the deceased by stabbing, at a place where the deceased lived in Walker county. The defendant and the deceased lived a few hundred 'yards. apart. None of the witnesses saw the actual homicide, but some of them heard what appeared to be a fight in progress, and on going to the scene. found the deceased in a dying condition and the defendant standing over him. One of the witnesses testified as follows: “Mr. Gossett stated to me that he killed Doner, and that he would do it again under the same circumstances; he just stated that he would do.it again if it was to do over. He said it was about his daughter; he said his daughter was there in Doner’s room, in Doner’s bed; he said that Mr. Doner had been in the habit of coming up there to his house (Gos-sett’s house) for six or eight months, and thai he was there on the evening of the killing, prior to the killing. I think that Gos-sett said that he was waked up by his wife and told that his daughter was gone. Gossett also stated that he went to the door of Doner and knocked, and that Doner got up, and that he turned the knob and found the door unfastened, and that he walked .into the room. He said that he found- his daughter in there. He said he asked Doner where his daughter - Callie was, and Doner said he didn’t know. Callie was Gossett’s daughter. He didn’t say that it was in the dark. He didn’t tell me that Doner said' she wasn’t there; he said he didn’t know where she was at, and this was in answer to Gossett’s question as to Callie’s whereabouts. . . When I got down there they decided that they would want-Callie at the coroner’s inquest, and I went up to the house where they lived and went in, and Mrs. Gossett said that she had not seen Callie. I found her at a house where colored people lived. She was in bed with two negro children.” Both the plaintiff and the defendant were connected with the United States Army post in Walker county, the defendant being employed with the pack-train. The defendant introduced no evidence, but relied on h'is statement, which was similar to that detailed by the witness, only fuller. Among other things he stated as follows: The deceased and he had worked together for two years, and were intimate friends — almost like brothers; and the deceased was a constant visitor in his family. On the night of the homicide he was at the defendant’s house, and when the latter became tired he excused himself, leaving the deceased and several members of the family together. In the night his wife waked him and told him-that their daughter was gone, and that she thought Doner had run away with the girl. He went to Doner’s house and called for Doner’s roommate to see if she was there and to make inquiries after her. After knocking and calling twice and receiving no answer, he turned the door knob and the door came partly open. Doner came to the door, and, on inquiry, denied knowledge of the girl’s whereabouts. Defendant went in and found his daughter in Doner’s bed. He smelled whisky strongly on her breath, and “that caused me to think that he had brought her there to ruin her and the rest of us for the rest of my days. And I tell you what’s a fact, when such feelings as that come 'over you, it sure hurts you, and to ruin a child of mine it sure hurts.” He turned on Boner, a scuffle ensued, and Doner was killed.</p> <p>In rebuttal the State introduced the evidence of several witnesses to show that they knew the general character as to virtue or lewdness of Oallie, the defendant’s daughter, in that neighborhood; that the general talk around there was that she was not considered a virtuous, woman, and that her character for lewdness was bad; that the general talk among those who worked around that place was that she was of bad character and had been for a year previous; that Gossett worked with the pack-train which was right in the neighborhood of where this gossip was going on, and both he and Doner lived there; and that this was talked among the soldiers and employees of the United States Government. One of the witnesses testified, that the girl appeared to be about seventeen or eighteen years old; that she “was a medium-sized woman;” that she wore short dresses when the witness first knew her, but had put on long dresses reaching about to her shoe tops. Evidence was also admitted to show that she had been seen on several occasions at night away from home, once on the road with a negro girl, once sitting on the “corral” fence talking with a man between nine and ten o’clock at night, and at another time coming out of the pack-train quarters about eight o’clock at night; and that she had been seen in the pack-train quarters, running and playing with the men in their sleeping quarters, and in the kitchen; also that she had been seen at the railway station at eight or nine o’clock at night. The' defendant made a further statement, in which he said that his daughter was. only fifteen years old, and that if she had done anything wrong or had a bad reputation, he had no knowledge of it. The motion for new trial was based on the grounds, that the verdict was contrary to law and the evidence, and that the court erred in various charges and omissions to charge, and in the admission of evidence' to show the general character of Callie Gossett to be lewd, over objection on the ground that it was not in rebuttal, that it was immaterial and irrelevant, and that there was no evidence that the defendant knew, at the time of the homicide, of such lewd character. Another ground of the motion was based on the evidence of a witness who testified that he saw her in the “ corral ” between nine and ten o’clock at night, talking to a man, over objection on the ground that the State was singling out a specific act of Callie Gossett to show bad character, and that this was Improper; also that there was no evidence that defendant had notice of the fact.</p>

Equitable petition. Before Judge Lewis. Jasper superior court. December 7, 1904. R. W. Ballard as administrator of S. R. Parker, deceased, filed an equitable petition against L. B. Parker, in the superior court of Jasper. county, seeking to recover certain land, and to have a deed made by the deceased to the defendant cancelled, on the grounds, that the deceased did not have mental capacity to make it, and that it was procured by undue influence.

Equitable petition. Before Judge Mitchell. Colquitt superior court. January 12, 1905. In an equitable petition presented to the superior court of Colquitt county, the plaintiff below, Mrs. Dora L. Meredeth, asserted ownership of a certain house and lot in the town of Moultrie, alleging that she purchased and acquired title to the premises on February 13, 1896, since which time she has been in possession of the same.

Levy and claim. Before Judge Mitchell. Brooks superior court. January 6, 1905. This was a claim case. The issue arose upon the levy of a fi. fa., in favor of Rountree & Company against William Jones and -M. J. Jones, on a certain tract of land as the property of William Jones, and the interposition of a claim by S. S. Gaulden.

<p>Motion to amend motion for new trial. Before Judge Mitchell. Colquitt superior court. January, 1905.</p>

Eviction. Before Judge Mitchell. Berrien superior court. January 16, 1905. Sirinans made an affidavit before the judge of a county court, for the purpose of evicting Rigell as an intruder. A counter-affidavit was interposed, and the papers were returned to the county court for trial. The judge of the county court rendered a judgment in favor of the defendant.

<p>1. When proceedings have been begun under the Federal bankruptcy act of 1898, the operation of the insolvent traders’ act ( Civil Code, §§ 2716-2722) is, as to the subject of the suit, suspended ; but in the absence of any proceeding in the United States courts, the State courts have jurisdiction to try all cases coming within the purview of the act last mentioned.</p> <p>2. The petition was awkwardly drawn, but was sufficient to authorize the order granted, appointing a receiver and making the injunction permanent.</p> <p>3. Tghe affidavit of the attorney for the plaintiff in a petition for injunction and receiver, to the effect that he knows the recitals of fact in the petition to be true, is a sufficient verification of the petition.</p> <p>4. The admission of relevant evidence at any stage of a case is never ground for a new trial. This is so though the party offering the evidence (which consisted of affidavits) failed to comply with an order of the court requiring that all affidavits to be used as evidence be filed in the clerk’s office a given number of days before the day set for the hearing.</p> <p>6. Where at an interlocutory hearing of a petition for injunction and receiver, to which a demurrer has been filed, the whole case is heard together on the petition, demurrer, answer, and evidence, it is not error to refuse to allow the defendant to open and conclude the argument on the demurrer.</p>

<p>A judgment refusing to allow a general demurrer to a petition to be amended is not a final judgment; nor would a judgment allowing the amendment have been a final disposition of the cause, so as to authorize a writ of error to the judgment first named while the case was pending in the trial court. Under such circumstances the writ of error is premature and must be dismissed.</p>

<p>Removal to U. S. court. Before Judge Roberts. Irwin superior court. November 2, 1904.</p> <p>T. M. Paulk brought an action against the Ensign-Oskamp Company, a non-resident corporation, and H. H. Tift, praying for an injunction to restrain 'the defendants from cutting and removing the timber upon a certain described tract of land, and for the cancellation of a certain lease from William Paulk to H. H. Tift and a lease from Tift to the Ensign-Oskamp Company, together with an extension of the original lease from William Paulk to H. H. Tift. The petitioner alleged that he was the true owner of all the timber suitable for sawmill purposes upon the described land; that on March 19, 1900, William Paulk conveyed the said lot of land to petitioner, who recorded his deed on March 14, 1901; that, previously to the execution and delivery of the aforementioned deed, William Paulk, on»August 14, 1897, sold and by lease conveyed to - H. H. Tift the sawmill timber upon the described lot of land; that said conveyance provided that Tift and his assigns should have the free use and enjoyment of the timber for the purposes therein stated, for the full term of six years from the 14th day of August, 1897; that thereafter, on October 28,1898, Tift signed, sealed, and delivered his conveyance of the timber, together with other timber, to the Ensign-Oskamp Company, in which conveyance Tift warranted to the EnsignOskamp Company the timber purchased from William Paulk for the term of six years from- the date of the boxing of the timber for turpentine purposes; that in 1899, the Ensign-Oskamp Company procured from William Paulk an instrument in writing purporting to be an extension of the time of the original deed to H. H. Tift, so that the lease would expire six years after the boxing of the timber for turpentine purposes, which extension was without consideration, nor was there any consideration recited therein; that the extension of said lease was a fraud, because it was without consideration and too indefinite and uncertain to be enforced; that the Ensign-Oskamp Company was threatening to enter upon said land under their pretended claim of right and to cut and remove the timber therefrom ; and that the extension of the lease and conveyance from Tift to the Ensign-Oskamp Company is a cloud upon petitioner’s title. At the appearance term the EnsignOskamp Company presented their petition for removal of said cause to the circuit court of the United States for the southern district of Georgia, alleging that the amount involved was more than $2,0.00; that it was a corporation of the State of West Virginia, and that its codefendant was neither a necessary nor indispensable party to said. suit; that no substantial relief was prayed against its codefendant, and that the whole controversy could be disposed of by a decree between the plaintiff and the nonresident corporation. The court passed an order directing a removal of the cause to the United States court as prayed, and the plaintiff excepts to this judgment.</p>

<p>Complaint on note. Before Judge Roberts. Dodge superior court. December 29, 1904.</p>

<p>Eviction. Before Judge Roberts. Irwin superior court. December 31, 1904.</p> <p>• Joe Fletcher made affidavit before a justice of the peace, that he was the owner of a described parcel of land; that he had rented the same to George H. Fletcher for the year 1901; that the term had expired, and he desired possession; that George H. Fletcher and one David Christmas were holding possession as tenants holding over; and that he had demanded possession of each of them since the expiration- of the term, and they had refused to deliver possession to him. • The affidavit was amended by adding an averment that Christmas was holding under George H. Fletcher and claiming possession as a subtenant of George H. Fletcher, and that they were holding over beyond the term. George H. Fletcher and Christmas each filed a counter-affidavit and gave bond. The papers were returned to the superior court for trial. The defendants moved to dismiss the proceeding, on the following grounds: (1) The affidavit fails to allege that the plaintiff had consented that Christmas should become the subtenant of George H. Fletcher, or the tenant of plaintiff. (2) George H. Fletcher and Christmas could not be proceeded against jointly. (3) Unless the plaintiff consented that Christmas should become the tenant of George H. Fletcher, Christmas was an intruder and should have been proceeded against as such. The court overruled this motion, and the defendants excepted pendente lite. The trial resulted in a verdict in favor of the plaintiff for the possession of the premises and fifty dollars rent-Upon this verdict a judgment was entered that possession be delivered to the plaintiff, and that he recover of the defendants, fifty dollars rent and costs. The defendants made a motion for a new trial, which was overruled. They -excepted, assigning error' upon the judgment overruling the motion to dismiss, and upon that overruling the ’motion for a new trial.</p>

<p>Action for damages. Before Judge McRae. City court of McRae. November 15, 1904.</p> <p>Mrs. Georgia Edmundson, in her petition against the Southern Railway Company, alleged that the defendant had endamaged her in the sum of one hundred dollars, by reason of the following facts: That she boarded a train of the Atlantic Coast Line Railroad Company at Tampa, Florida, for Helena, Georgia, having previously purchased a ticket and checked her baggage, which was a valise, to her destination; that upon her arrival at Helena she presented her check to the defendant and demanded her baggage, but the defendant failed and refused to deliver the same to her, and still fails and refuses so to do or to pay her the value thereof; that the defendant contracted and agreed to receive the valise from the initial railroad at the junction point of defendant, and safely carry the same to Helena and there deliver it to petitioner; that the defendant did so receive it from the connecting road in good condition, and transported it-to Helena, Georgia. The contents of the valise and its value were alleged. The defendant was alleged to be’ guilty of negligence in failing and refusing to deliver to plaintiff the valise and its contents. Petitioner further alleged that the valise and its contents were taken and feloniously appropriated by some of defendant’s agents, servants and employees. The defendant in its plea denied certain paragraphs of the petition, and required proof of others, because of want of sufficient information to either admit or deny them. The defendant further specially pleaded that it had exercised all care and diligence required of it in the protection of plaintiff’s baggage, and was, therefore, not liable to her in any sum. The case was tried by the judge without a jury, and on the trial the plaintiff’s testimony supported the allegations in the petition as to purchasing a ticket at Tampa, Florida, and checking the. baggage to Helena. The plaintiff further testified, that she left. Tampa at eight o’clock p. m., and arrived at Helena at 3:45 o’clock p. m., the next day; that upon her arrival she could not find the agent of defendant, but delivered the check to a friend and directed him to get her baggage; that the baggage was' demanded that day, but not delivered; that she went out to her father’s that afternoon, and about a week later she again sent for her baggage; but that she has never received the valise or its. contents. She 'testified as to the contents of the valise and its value. Another witness for the plaintiff testified, that he presented the check to the agent of defendant, about two weeks after the baggage arrived at Helena, and demanded the valise, and that, the agent directed him to a porter, but the porter could not find the valise. The defendant offered as a witness its agent at Helena, who testified that the plaintiff arrived at Helena on the northbound train at 3:45 p. m., that one Mr. Dean, for the plaintiff,' asked for her “ grip,” and that he informed him that it had not come, but would doubtless be in on the night train; that the valise came that night on the northbound train .and remained in the baggage-room for two weeks; that the “grip” was a common cloth one, bound with one strap, which was fastened with a buckle; that the witness was informed by the plaintiff that it contained baby clothes; and that had he known of its value he would have kept it in the office with him instead of in the baggage-room ; that the baggage room is not in the same building with the office, but is across the tracks in the old depot; that any one might have stolen it from the baggage-room; witness saw it there several times and kicked it out of his way; it remained. there to his knowledge for at least two weeks; all the baggage was kept in the baggage-room, but it was not kept locked all through the day ; any one could have gone there without witness’s knowledge and stolen the valise; that the baggage room was frequently allowed to remain open all day with no one to watch it; the railroad company had a man to handle baggage, but he did not stay at the baggage-room all the time. The judge rendered a judgment for the plaintiff. The defendant moved for a new trial, upon the usual grounds, and upon the additional ground that the allegations were not supported by the proof. The motion was overruled, and the defendant excepted.</p>

<p>Injunction and receiver. Before Judge Martin. Pulaski superior court. April 7, 1905.</p>

<p>If a person, fraudulently intending to get possession of the money of another and appropriate the same to his own use, by false representations induces the owner to deliver the money to him for the purpose of being applied for the owner’s use or benefit, and then appropriates it in pursuance of the original intent, he is guilty of both larceny after trust delegated and simple larceny, and may be prosecuted for and convicted of either offense.</p>

<p>A private business eoz-porafcion created under the laws of this State, with its principal office in a given county, can not be sued in another county for a trespass committed therein, when it has no agent, agency, or place of business in the latter county.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton superior court. March 14, 1905.</p> <p>The Atlanta, Knoxville arid Northern Railway Company undertook to secure, for the joint benefit of itself and other railroad companies with which it was associated, terminal facilities in the City of Atlanta, affording access to Central avenue, in the heart of the city. As a part of the project, the railway company desired to acquire title to a street known as Waverly place, which divided property it had purchased from the freight-yards of one of the companies with which it was associated; to also acquire title to a lot upon which stood one of the fire-engine houses belonging to the city; and to secure the privilege of crossing certain streets intersecting a right of way leading to the property which the railway company had purchased for use as a terminal station. The City of Atlanta, acting through its general council, indicated a willingness (;o encourage and foster the enterprise, and negotiations between the railway company and the city council were entered into, with a view to granting to the railway company the desired privileges and conferring upon it the right to use Waverly place as it might see fit. The City of Atlanta also had a purpose of its own in view; it much desired to acquire the right to construct a viaduct across the railroad-yards of the companies associated with the Atlanta, Knoxville and Northern Railway Company, and to get from the railroad companies substantial aid in the building of this expensive structure from Washington street, on the south, to Collins street, on the north of the railroad yards. . As a result of the negotiations, the city council, on December 23, 1904, adopted an ordinance which provided, in substance, as follows: The railway company was to be granted, (1) the privilege of crossing the streets intersecting its right of way to the proposed terminal station; (2) the city’s fire-engine lot; (3) the street known as Waverly place; and (4) the right to cross- with its tracks a portion of Washington street, at a grade which would admit of trains passing under the proposed viaduct. On the other hand, the city was to acquire from the railway company, (1) a right of way for the viaduct across the railroad-yards; (2) the sum of $50,000 to be used in building this viaduct; (3) a lot in the neighborhood upon which should be erected by the railway company a modern fire-engine house to take the place of that granted to the railway company; and (4) the use of a street laid out across the property of that company south of Waverly place, and to be used in its stead till the city should take steps to build the viaduct and should receive from, the company the $50,000 to be used in its construction, when the strip of land laid out as a street across the railway company’s property should be reconveyed to that company, provided the city was not prevented by legal proceedings from so doing,, the $50,000 to be paid to the city in any event. The railway company assented to the terms of the ordinance, and it was about to be carried into effect when F. M. Coker Jr. and W. S. Kendrick filed an equitable petition, therein naming the Atlanta, Knoxville and Northern Railway Company and the City of Atlanta as defendants, and praying that they be1 enjoined from proceeding under the ordinance to do anything affecting the existing status. Petitioners attacked the contract evidenced by the ordinance, as ultra vires, alleged that they were the owners of property in the immediate vicinity of Waverly place that would be injuriously affected by the closing, and obstruction of that street, and denied any right or authority on the part of the city to vacate it or to grant to the raffway company the privilege of using the same for railroad purposes.</p> <p>On the hearing no attempt was made to show that any special injury to Kendrick would result from the closing of the street, but it did appear from the uncontradicted evidence that if Waverly place should be vacated and no thoroughfare taking its place should be substituted, the market value of certain property owned by Coker would depreciate from five to ten, or possibly twenty-five per cent. The fact was also brought out at the hearing, that, subsequently to the filing of the petition for injunction, the city council had in certain respects amended the ordinance complained of. The only change therein which need be noticed is the striking of the provision for the payment by the railway company of $50,000, and the insertion in lieu thereof of the following stipulation: “ Section 6. That the said railroad company, by accepting this ordinance, agrees and contracts with the City of Atlanta to pay a part of the expense or co.st of the construction of said viaduct, corresponding to the amount needed to erect that part of the viaduct extending.over the tracks of the railroad from the abutment at Washington street to the abutment at Collins street, as shown on the plans of the original ordinance, approximating a distance of 393 feet; thus connecting the viaduct constructed to either side of said railroad property and completing said viaduct, provided the, cost of such part of the same does not exceed $80,000, any saving tobe for the benefit of the railroad, its successors and assigns. The City of Atlanta will adopt a resolution directing the mayor to execute a conveyance in its name quitclaiming all the city’s right, title, and interest in and to Waverly place, as changed, to the Atlanta, Knoxville & Northern Railroad Company, its successors and assigns, at the time said railroad company, its successors and assigns, shall pay their part for the construction of said viaduct, as above provided; and the- good faith of the city is hereby pledged to accordingly secure said street to said railroad company and its successors and assigns; provided, however, that should the City of Atlanta be prevented by legal proceedings from making said quitclaim conveyance, the payment for said viaduct shall nevertheless be made as herein provided.” To certain evidence offered by the defendants objection was made by the plaintiffs, and the court reserved its decision as to the admissibility of this evidence until a date subsequent to the hearing, at which time the objections were overruled and an order was passed denying the injunction prayed for. To these rulings exception is taken.</p>

<p>1. The constitution of Georgia requires that all criminal cases shall be tried in the county where the crime was committed. The residence of the defendant is wholly immaterial to the fixing of the venue. Although the form of the indictment prescribed in the Penal Code, § 929, contains an averment of residence of the defendant, the omission of such averment in an indictment will not be ground for quashing the indictment, where it conforms in all other particulars with the prescribed form, and the offense is plainly described in the language of the statute.</p> <p>2. An assignment of error not referred to in the brief of the plaintifl in error will be treated as abandoned.</p>

<p>Certiorari. Before Judge Pendleton. Eulton superior court. April 25, 1905.</p> <p>Brown was convicted, in the municipal court of the City of Atlanta, for a violation of an ordinance against the keeping of intoxicating liquors for unlawful sale. The ordinance in question provided that upon conviction the offender should be punished “ by a fine not exceeding five hundred dollars, or imprisonment not exceeding thirty days, either or both, in the discretion of the court.” The recorder imposed upon the accused a sentence that he pay a fine of one hundred dollars, and costs, and that in default of such payment said defendant work on the streets or public works of said city thirty days under the direction of superintendent of public works.” The accused sued out a petition for certiorari, in which he alleged, among other things, that the imposition of the alternative sentence to labor upon the public works was without authority of law. The writ of certiorari was issued, and the recorder answered that the imposition of the alternative penalty complained of was due to inadvertence; that the accused paid the fine imposed before being put to labor on the public works;' and that the respondent had no notice of the error in the sentence until the certiorari was served upon him. The judge of the superior court overruled the certiorari, and the accused excepted.</p>

<p>Certiorari. Before Judge Lewis. Wilkinson superior court. April 5, 1905.</p>

<p>Indictment for murder. Before Judge Freeman. Coweta superior court. April 10, 1905.</p>

<p>Indictment for seduction. Before Judge Fite. Gordon superior court. April 15, 1905.</p>

<p>Indictment for gaming. Before Judge Fite. Gordon superior court. April 8, 1905.</p>

<p>Accusation of gaming. Before Judge Spence. Worth superior court. April 25, 1905.</p>

<p>. Certiorari. Before Judge Spence. Worth .superior court. April 25, 1905.</p>

<p>Certiorari. Before Judge Felton. Houston superior court. May 1, 1905.</p>

<p>Indictment for larceny. Before Judge Mitchell. Berrien superior court. April 10, 1905.</p>

<p>Indictment for arson. Before Judge Mitchell. Berrien superior court. April 11, 1905.</p>

<p>Indictment for public indecency. Before Judge Parker. Appling superior court. April 6, 1905.</p>

<p>Indictment for profane language. Before Judge Kimsey. Dawson superior court. May 6, 1905.</p>

<p>Accusation of misdemeanor. Before Judge Proffitt. Elbert, superior court. May 10, 1905.</p>

<p>Conviction of stabbing. Before Judge Cann. Chatham superior court. April 5, 1905.</p>

<p>Certiorari. Before Judge Reagan. Monroe superior court. May 8, 1905.</p>

<p>Accusation of abandoning child. Before Judge Clark. City-court of Forsyth. May 4, 1905.</p>

<p>Indictment for assault with intent to murder. Before Judge Cann. Chatham superior court. April 22, 1905.</p>

<p>1. The Penal Code, §398 (making penal the keeping of a gaming-house or renting a house to be used for gaming) defines a single offense, which may be committed in any one of the three ways therein designated. Therefore an indictment containing two counts, one charging the defendant with maintaining a gaming-house, and the other with knowingly renting the house with the view and expectation of the same being used for gaming, is not open to demurrer on the ground of misjoinder of separate and distinct offenses. Nor was the second count defective because the name of the tenant was not averred.</p> <p>2. The verdict against the special plea in bar is not reviewable by direct exception, assigning error that it is contrary to law and the evidence.</p> <p>3. Where guilty knowledge is the gist of the offense, anything going to show the existence of such knowledge is admissible in evidence, aDd it is immaterial when and from what source such knowledge was acquired,</p> <p>á. Evidence of a prior conviction of a similar offense, or of the pendency of an indictment charging a like offense, offered by the State, is incompetent to prove the charge made in the indictment under which the defendant is being tried. Such evidence is hurtful as giving the jury an opportunity to infer that the accused is a persistent violator of the law against gaming, and is in all likelihood guilty of the specific charge then brought against him.</p> <p>5. Testimony that the defendant was lessee of the premises during the period within which it was alleged gaming was carried on in the house was admissible as showing he had control over the premises.</p> <p>6. If the defendant did not rent the premises for an illegal or immoral purpose, he was under no obligation to use ordinary diligence in discovering the use to which the premises were put ;■ but if the circumstances of the conduct of that business were such as to put him upon notice that the premises were used for gaming, the jury would be authorized to find that the defendant had knowledge that the premises were so used.</p>

<p>Indictment for murder. Before Judge Holden. Hart superior court. June 7, 1905.</p>

<p>1. A bill of exceptions which sets forth a general complaint of the granting of an injunction will not be dismissed on the ground that it does not con- • tain a legally-sufficient assignment of error, if it be practicable for this court, looking to both the bill of exceptions and the transcript of the record, to ascertain what questions were passed on by the trial judge and what rulings the plaintiff in error seeks to have reviewed.</p> <p>2. The carrying out of a contract to build a court-house should not be enjoined at the instance of taxpayers on the ground that the county author' ities failed to observe the requirements of the Political Code, § 345, when it appears that there has been a substantial compliance with its provisions respecting an advertisement for bids, putting the public on notice of the “extent and character of the work to be done and the terms and time for payment.”</p> <p>3. County commissioners have a broad discretion in passing upon the necessity of erecting suitable buildings for county purposes and selecting an appropriate site therefor; and the reviewing power of the judge of the siv perior court should be exercised with caution, and no interference had unless it-be manifest that the county authorities are abusing the discretion with which they are vested, or that the tax which they propose to levy to meet the cost of construction is exorbitant and will therefore impose an unauthorized hardship upon the taxpayer. That he may be also subject to municipal taxation affords no reason for enjoining the collection of a county tax which is not itself exorbitant, inasmuch as the needs of the county are not to be suffered to go. unsatisfied because of any independent burden upon the taxpayer which he assumes by becoming a resident of a town or city.</p> <p>4. Whether the funds with which to meet the expenditure shall be raised , by a tax for the current year, or by affording the voters of the county an opportunity' to authorize the issuance of bonds at an election duly held for that purpose, is a matter solely for the determination of the county authorities, and their decision as to this matter is not subject to review by the judge of the superior court, who has no power to order an election or to delay action on the part of the commissioners till they refer to the voters of the county the question of the expediency of a bond issue.</p>

<p>Conviction of manslaughter. Before Judge Lewis. Jasper superior court. March 29, 1905.</p> <p>Cited, as to matter ruled on in third headnote, Ga. B. 12/215; 108/786; 111/832; 114/24,267; 86/112; 120/797;, 101/739; 43/90; 89/161; 117/553, 693; 105/150.</p>

<p>Accusation of larceny. Before Judge Spence. Worth superior court. April 25, 1905.</p>

<p>1. Where letters have been lost or destroyed, their contents, if material, may be proved by a witness who testifies that he read them and knows the substance of them, although he can not state what they contained “ word for word.”</p> <p>2. Where a wife has been indicted for the murder of her husband, on the trial it is competent to prove declarations or acts on her part near the time of the alleged homicide, tending to show ill will or malice on her part toward him, or to prove a line of conduct or gross ill treatment and cruelty on her part toward him, continuing until shortly before the alleged offense. Such evidence is admissible for the purpose of showing motive or malice on the part of the accused, and to rebut the presumed improbability of a wife murdering her husband.</p> <p>3. Immaterial errors which could not have injured the defendant furnish no ground for a new trial.</p> <p>4. On the trial of a criminal case, although a witness for the State on direct examination testified that he received and saw certain letters written by the defendant, yet where on cross-examination he stated that he did not know that the defendant wrote the letters, or that she authorized any one to write them, or that she was advised of their contents, they should have been excluded from evidence on motion. Nor were they rendered admissible because on redirect examination the witness stated that the name of the defendant appeared to be signed to the letters, and that they referred to her husband, and some of them were directed to him and some to the witness, and that they came by mail from a city where she told him that she intended to go, although he did. not know that she was in such city except from the fact that the letters came from that place.</p> <p>5. The refusal to allow counsel to ask a question of a witness, to the effect that if another witness had testified that a bullet entered the skull of the deceased “on the left about where my finger is,” and penetrated to the skull back near the ear, whether the other witness was mistaken, furnished no ground for a new trial. If the form of question was admissible at all, its materiality is not apparent in the absence of any information in the record as to where counsel in fact placed his finger as an indication of locality.</p> <p>6. To warrant a conviction on circumstantial evidence alone, the proved facts must not only be consistent with the hypothesis of guilt but must exclude every reasonable hypothesis save that of the guilt of the accused. It is erroneous to charge that the jury would be authorized to find the defendant guilty unless there is some other hypothesis as reasonable as that the defendant committed the act.</p> <p>7. In the absence of'a request to charge on the subject of weighing the testimony of witnesses in cases of conflict, the omission of the judge to do so will furnish no ground for a new trial.</p> <p>8. Where the jury returned into court a verdict of guilty, and while it was being received the foreman asked the presiding judge if the juiy could find that the defendant be punished for a less term of years than her lifetime, to which he replied that they could not do so under a verdict of guilty, and the verdict was regularly received and recorded without objection or request that the jury be polled, or that they be required to return to their room for further, deliberation, this furnished no ground for a new trial on behalf of the defendant, there being nothing to show that the verdict was not regularly agreed upon by the jury.</p>

<p>Indictment for larceny. Before Judge Littlejohn. Dooly superior court. April 26, 1905.</p>

<p>Certiorari. Before Judge Spence. Worth superior court. April '24, 1905.</p>

<p>Indictment for profane language in presence of female. Before Judge Burch. City court of Dublin. April 24, 1905.</p>

<p>1. Even though the admission of the testimony objected to may have been erroneous, the error was subsequently cured by the action of the trial judge in ruling the evidence out and instructing the jury to disregard it.</p> <p>2. An essential element of voluntary manslaughter is passion on the part of 'the slayer. The fact that the person slain may himself have been actuated, by violent passion, in the absence of any demonstration by him against the-slayer, has no bearing upon the grade of the homicide. Unless it be shown that the person killing was so overcome by passion as to exclude all idea, of deliberation or malice, the killing is not voluntary manslaughter. Tested, by this rule, there was no manslaughter in the present case.</p>

Certiorari. Before Judge Holden. Jefferson superior court. May term, 1905. A special presentment was returned against Fannie Edwards for selling liquor without a license in Jefferson county. The offense was charged to have been committed on November 8, 1903. The presentment was returned at the November term, 1903, of •Jefferson superior court. The case was tried in the county court.

<p>Conviction of manslaughter. Before Judge Roan. Fulton superior court. May 22, 1905. •</p>

<p>Indictment for murder. Before Judge Reagan. Henry superior court. June 10, 1905.</p> <p>Clements was indicted for the murder of Will Stephenson. He was convicted, with a recommendation that he be imprisoned for life. He moved for a new trial, which was refused, and he excepted. The evidence on behalf of the State showed, in brief, the following facts: Stephenson was in a store when the defendant came up. As he and others stepped- out of the store the defendant was standing near by. He grabbed Stephenson, cursed him, had a drawn, pistol, and said: “ You ran home and got your pistol to kill me with.” Stephenson denied this, but the defendant insisted that it was true, and said: “ I have got a notion to-shoot you anyhow.” Stephenson answered: “I have not done anything to you; what do you want to shoot me for ? I have not got my pistol; if you will go with me I will show you.” The defendant told him to hold up his hands and asked a person near by to come and get the pistol out of Stephenson’s pocket. The person addressed declined to do this. Stephenson ran and the defendant pursued him, shooting at him three times., Two shots took effect, one in the leg and the other in the back, resulting in Stephenson’s death. He was trying to get around the corner of the house. During the same evening and previously to the homicide the defendant had said that if he found Stephenson that night he would kill him. The evidence for the defendant did not materially differ from that for the State, as to the occurrences at the time of the homicide. One witness testified that on the night of the shooting Stephenson came to his' store, asked if any one had seen the defendant, and said that he wished to find him; that the witness told the defendant that Stephenson was hunting for him, and that1 he had better not go where the latter was; that Stephenson came to the store a second time and asked for the defendant, and the witness also told this to the defendant; and that Stephenson had said that it would be bad for defendant if he found him. Another witness testified that when Stephenson came into the store he inquired for1 the defendant ; and also that when the defendant thrust his pistol into Stephenson’s face and required him to throw up his hands, the latter held them up part of the way “but twisted around like he was trying to put them in his pocket.”</p>

<p>Accusation of selling liquor. Before Judge Henderson. City court of Vienna. May 31, 1905.</p>

<p>Conviction of manslaughter. Before Judge Spence. Dougherty superior court. June 14, 1905.</p>

<p>Certiorari. Before Judge Littlejohn. Dooly superior court. May 27, 1905.</p>

Equitable petition. Before Judge Holden. Hart superior court. January 7, 1905. The assignment of error made in the bill of exceptions is that the court on demurrer dismissed the plaintiff’s action.

Complaint. Before Judge Hammond. City court of Griffin. January 2, 1905. A partnership was formed in 1893 or 1894, under the firm name of H. P. Eady & Co., between H. P. Eady and J. A. Brooks,, for the purpose of engaging in the wagon and buggy business and conducting a blacksmith and general repair shop. Brooks had charge of the books and 4ooked after the office affairs of the firm, while Eady assumed the management of the shop.

Indictment for misdemeanor. Before Judge Holden. Taliaferro superior court. June 3, 1905. Dave Wynne was indicted for carrying about his person a shotgun to a public gathering, not at a militia muster ground. On the trial the evidence for the State was, in brief, as follows: On July 4, 1904, there was a public barbecue at Hillman, in Taliaferro county, at which negroes and some white people gathered, to the number of some four or five hundred.

<p>Accusation of carrying concealed weapon. Before Judge' Henderson. City court of Yienna. June 3, 1905.</p>

<p>Indictment for assault with intent to murder. Before Judge Freeman. Carroll superior court. June 8, 1905.</p>

<p>Indictment for keeping gaming-house. Before Judge Hodges*. City court of Macon. June 3, 1905.</p>

Indictment for assault with intent to murder. Before Judge Felton. Bibb superior court. June 2, 1905. Frank Napper was indicted for an assault with intent to murder. He was convicted, moved for a' new trial, and upon the overruling of the motion excepted. The evidence on behalf of the State was, in brief, as follows: On April 16, 1905, a baptizing occurred at which a large number of negroes congregated.

<p>Conviction of manslaughter. Before Judge Littlejohn. Webster superior court. May 27, 1905.</p>

<p>The evidence for the State was entirely circumstantial, but, if the witnesses were credible, it was sufficient to establish the guilt of the accused beyond a reasonable doubt. The credibility of the witnesses was a matter for the jury, subject to the revision of the judge upon application for a new trial. The trial judge being satisfied with the verdict, and there being no error of law requiring the granting of a new trial, his discretion exercised in refusing to grant a new trial will not be interfered with.</p>

Indictment for assault with intent to murder. Before Judge Hammond. Richmond superior court. May 26, 1905. Eobert Mixon and Andrew Mixon were jointly indicted for an assault with intent to murder, alleged to have been committed upon' one Billy Williams, by shooting him with a musket. They were tried separately, Eobert being first tried. Each of them was convicted, each moved for a new trial, and upon its refusal each excepted. The two cases were argued together in this court.

<p>Accusation of misdemeanor. Before Judge Humphreys. City ■court of Moultrie. June 14, 1905.</p>

<p>Conviction of shooting at another. Before Judge Littlejohn. Stewart superior court. May 24, 1905.</p>

<p>1. One may publish, by speech or writing, whatever he honestly believes is essential to the protection of his own rights or those of another, provided the-publication be not unnecessarily made to others than to those who the-publisher honestly «believes are concerned in the subject-matter of the-publication.</p> <p>2. The statement must be no broader and the publication no wider than the interest to be subserved demands. Care must be taken, not only to keep, the statement within proper limits as to its subject-matter, but also that it be not made to those who are wholly without interest in the matter.</p> <p>3. “Where the expressions employed are allowable in all respects, the manner of the publication may take them out of the privilege.”</p> <p>4. Mere publication to a stranger will not always destroy the privilege, if it appears that the communication, prima facie privileged, was made in the-hearing of third persons not legally interested, and whose presence was-merely casual and not sought by the publisher.</p> <p>5. To make the defense of privilege complete, in an action of slander or libel, good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear, The absence of any one or more of these constituent elements will, as a general rule, prevent the party from relying on the privilege.</p> <p>6. When a railway company discharges a conductor, and it comes to its. knowledge that there are still in his possession tickets of the company which were delivered to him while in its employment, which he at that time had a. right to sell, and which he refuses or fails to surrender, the company has a. right, in order to protect its own interest, to take such precautions as are reasonably necessary to prevent the use of the tickets by persons not entitled to use them.</p> <p>7. A publication by a railway company under such circumstances to persons-, whose knowledge is necessary to its protection is authorized.</p> <p>8. The publication, however, if couched in terms which would be per se libelous, or libelous if published under circumstances which would make it of such character, would not be privileged, if it was communicated to persons, not concerned with the matter of the outstanding tickets, whether such persons be strangers or other employees of the company.</p> <p>9. The charge of the judge did not distinctly submit to the jury the controlling issue in the case, as to whether the publication was unnecessarily made to others than those concerned in the matter of preventing the use of the unsurrendered tickets. •</p> <p>10. Whether the writing was a libel under the circumstances under which it was published was to be determined by the jury, after taking into consideration the terms of the writing, the circumstances of the publication, their knowledge of the meaning of the words employed, and the impression the use of such words under such circumstances would make upon the mind of a person of average intelligence; and it was not incumbent upon the plaintiff to prove by witnesses what they understood the writing to mean.</p> <p>11. The rulings upon evidence were free from error.</p>

<p>1. It is incumbent upon a party excepting to the report of an auditor in an equity case, when the exceptions thereto involve a consideration of the evidence on which the auditor based his findings, to set forth, in connection with each exception of law or of fact, the evidence necessary to be considered in passing thereon, or to attach thereto as an exhibit so much of the evidence as is pertinent, or to at least point out to the court where such evidence is to be found in the brief of the evidence prepared and filed by the auditor. The decision in the case of White v. Reviere, 57 Ga. 386, was made with reference to the procedure which obtained prior to the passage of the act of December 18, 1894, which outlines the practice now to be observed in excepting to an auditor’s report in such cases.</p> <p>2. A party may, after the hearing of a case before an auditor has been concluded but before he has made his report, so amend his pleadings as to make the same conform to the evidence admitted on the hearing without objection; but he can not, as a matter of right, then insist upon being afforded an opportunity to offer evidence to sustain an amendment which introduces new and distinct issues of fact. What was the character of the proffered amendment in the present case can not 'be determined without considering certain evidence which the party offering it claims was admitted without objection, and which is relied on as authorizing the amendment so as to make the pleadings conform to the proof; and as such evidence is not set forth or pointed out in the exception taken to the refusal of the auditor to allow the amendment, the court helow was not constrained to pass on the merits of the complaint made of its disallowance.</p>

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

Injunction. Before Judge Spence. Worth superior court. April 24 1905. The Atlantic Coast Line Railroad Company filed a petition for an injunction against the Town of Poulan and its municipal officers.

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

<p>Action for damages. Before Judge Reynolds. City court of Waycross. September 19, 1994.</p>

Certiorari. Before Judge Parker. Appling superior court. October 11, 1904. John Ellis Jr. brought two suits in a justice’s court against the Southern Railway Company, seeking to recover in each of them on account of an alleged overcharge for freight.

<p>Where, in a complaint for land by an administrator, the defendants admit in their plea that the legal title was-in the plaintiff’s intestate at the time of her death, but aver that they are in/possession under a contract of purchase from her, with the greater part of the purchase-money paid, and make a tender of the balance and pray specific performance of the contract, a motion for a nonsuit should not be granted after evidence has been introduced • by the plaintiff which shows that he has been duly appointed administrator of the decedent.</p>

Equitable petition. Before Judge Parker. Ware superior court. January 3, 1905. The Southern Pine Company of Georgia and J. L. Crawley filed their equitable petition against B. A. and C. O. Bennett, seeking to obtain an injunction against the defendants to prevent them from cutting timber, for the purpose of making cross-ties, on certain land.

Injunction. Before Judge Parker. Clinch superior court. January 30, 1905. Charles S. Hebard and others filed an equitable petition against I. G. Lanier, O. T. Hamilton, and Daniel J. Guy, partners under the name of Lanier, Hamilton & Company, to enjoin the defendants from working for turpentine purposes trees on lots of land numbers 328 and 329 in the 12th district of Ware county.

Action for contribution. Before Judge Lumpkin. Fulton ■'superior court. August 12, 1904.

<p>Where a certiorari was sustained because all the evidence submitted by the defendant in certiorari on the trial of the case before the magistrate was inadmissible, it was not error for the judge of the superior court to refuse to render a final judgment, and to remand the case for a new trial.</p>

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. September 29, 1905.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. October 28, 1904.</p>

Action for damages. Before Judge Reid. City court of Atlanta. November 5, 1904. This was a suit for damages, brought by E. E. Sims against the Georgia Railway and Electric Company upon the following state of facts: Plaintiff boarded one' of the cars of the company at the corner of Broad and Marietta streets in the city of Atlanta, with a view to going to a point \m the south side of the city.

<p>Mandamus. Before Judge Seabrook. McIntosh superior court. May 22, 1905.</p> <p>The Aiken Canning Company brought a petition for mandamus', against “ the Board of Commissioners for the County of McIntosh, and City of Darien,” alleging that the defendant was a corporation having charge and control of the county affairs of McIntosh, county, Georgia. In the petition it was alleged that the petitioner, desiring to transplant oysters, in accordance with the provisions of the Political Code, § T694, applied by petition to. the defendant, in the terms of this code section, for its consent and approval of petitioner’s proposed action; that the defendant, in violation of petitioner’s rights, failed and refused, and still fails and refuses, to give its consent and approval as required by law. A copy of the plaintiff’s application to the defendant was attached to the petition for mandamus. The prayer was for the. writ of mandamus, directed to the defendant, commanding' and requiring it to give its consent and approval to the action desired by. the plaintiff. The facts alleged in the petition were verified by the affidavit of the general manager of the canning company. A rule nisi was granted on April 20, 1905, requiring tbe defendant to show cause, etc., on the 4th Monday in May, 1905, and ordered served upon the defendant; and process was issued, requiring the defendant to answer the plaintiff’s petition at the next term of the superior court of McIntosh county. On May 15, 1905, the defendant filed its answer, which, after stating the case, began as follows: “ And now comes the Commissioners of McIntosh County, a corporation that has been served as the defendant in the above-entitled cause, and, answering, says: ” etc. In this answer the “Commissioners of McIntosh County” admitted that the petition, a copy of which was attached to the plaintiff’s petition for mandamus, was presented to “it,” and that “it” failed and refused to give its consent as therein prayed for, but denied that such refusal was in violation of the plaintiff’s rights. It alleged that there was no such territory within the county of McIntosh as is covered by section 1694 of the Political Code, and to which the defendant could grant the privileges that had been asked for by the plaintiff, and that all the oyster beds within the limits of the county and within one thousand feet of the shore line at mean low tide are either leased, owned by persons, or are such beds as are resorted to by the citizens of the State for procuring oysters for consumption or for sale; and that a mandamus would be nugatory and fruitless, and should, under the Civil Code, § 4870, be refused. The case came on to be tried at the May term of the Superior court, when the defendant “ moved to dismiss the proceedings in said case as to it, because the petition' and rule nisi served upon it was a proceeding against the 'Board'of Commissioners for the County of McIntosh and City of Darien,’ and not against the ' Commissioners of McIntosh County.’ ” The court overruled this motion, and the defendant excepted. The plaintiff offered an amendment to its petition, changing the name of the defendant so that it should read “Commissioners of McIntosh County,” which amendment was allowed by the court over the objection of the defendant, to which ruling the defendant also excepted. “ Plaintiff then orally moved the court to make the mandamus absolute, claiming that the answer of the defendant did not admit of the introduction of any evidence, and had not raised any question of fact that could be de-. termined at that time; and after argument. of counsel, the court sustained the motion of plaintiff and adjudged and decreed' that' the mandamus absolute issue as prayed,” to which ruling and judgment the defendant excepted.</p>

<p>1. A note executed and made payable in another State by a citizen of Georgia is governed, as to its validity, force, and effect,h>y the lex loci; and, in the absence of proof as to the law of that State, the common law is presumed to be of force.</p> <p>2. In order for duress of imprisonment, either actual or threatened, to have -been available at common law as a defense to a contract, the imprisonment, must have been unlawful.</p> <p>3. An imprisonment may be originally lawful, and become -unlawful. If one. is in jail under a charge of murder, and another threaten to detain him in prison for an indefinite period and prevent a trial from taking place,, this would amount to a threat of unlawful imprisonment.</p> <p>4. A parent may avoid a contract given under duress of imprisonment of a child.</p> <p>6. Where an attorney at law has been employed by a parent to defend his, son, who is in prison charged with murder, and the fee for such service has been agreed upon, a promise to pay to such attorney for another-attorney an additional sum due him by witnesses against the6son, for se« curing their release from jail, is without consideration.</p>

Action for damages. Before Judge Hodges. City court of Macon. October 1, 1904. A suit for damages was instituted by Mary O. Jackson against Laura B. Johnson, the plaintiff having received personal injuries while attempting to cross a porch connecting two of the rooms of a house belonging to the defendant and rented by her to a tenant.

Action on bond. Before Judge Hodges. City court of Macon. December 10, 1905. Adams brought suit upon a bond against Haigler and Frey as principals, and Bazemore as surety. The petition alleged: The plaintiff entered into a contract with Haigler and Frey on January 9, 1904, under which they were to build a house of a certain description and do other work stipulated in the contract.

<p>1. An assignment of error to the effect that the court erred in sustaining a motion to “rule out all of the evidence tending to show ” a given state of facts, without specifying, either literally or in substance, the evidence which was ruled out, presents no question upon which this court can pass.</p> <p>2. The bill of exceptions failing to clearly show upon what evidence the judgment directing a verdict was predicated, it can not be determined whether that judgment was or was not erroneous ; and as it is incumbent upon the complaining party to affirmatively show error, an affirmance of the judg-, ment must result.</p>

<p>Petition for mandamus. Before Judge Gober. Eannin superior court. May -24, 1905.</p>

<p>Mandamus will not be granted to compel municipal authorities to levy and collect a tax to pay a judgment alleged to be held by the applicants against the municipality, where it appears that the judgment relied on is not a. valid judgment against it.</p>

<p>1. Upon the trial, before a jury, of an issue of devisavit vel non, when in the paper propounded as the will the alleged testator has not left his property to strangers, but to one of his sons and such son’s wife and children, the principle laid down in the latter clause of section 3258 of the Civil Code is not applicable, and it is erroneous to give it in charge.</p> <p>2. Upon the trial of such an issue, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of its execution the testator apparently had sufficient mental capacity to make it and, in making it, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveators.</p> <p>3. Declarations of the testator, made within a few months after the date when the alleged will purports to have been executed, to the effect that he had not made a will, and that if he had signed a paper purporting to be one, he did not know what he was doing, are admissible in evidence, not as evidence of the truth of the facts so stated, nor as evidence that any fraud was practiced upon him or any undue influence exerted over him in the matter, nor as evidence that he had revoked the will, but simply for the purpose of showing the state of his mind when the paper purporting to be his will was executed, and whether or not he then had sufficient mental capacity to make a will, or was then in such a mental condition as to be easily and unduly influenced by another.</p>

Equitable petition. Before Judge Littlejohn. Macon superior court. November 22, 1904. Ogburn and 293 others, in a petition addressed to the superior court of Macon county, made the following allegations: On July 9, 1904,'a petition was filed with the ordinary of that county, for the purpose of bringing on an election to determine whether such spirituous liquors as are mentioned in the Political Code, § 1548, should be sold within the limits of Macon county.

<p>1. This court will not consider as evidence affidavits and documents specified in a bill of exceptions as material to a clear understanding of the errors complained of, which are not incorporated in an approved brief of the evidence, but are brought to this court in the transcript of the record merely as independent papers under the certificate of the clerk that they are of file in his office.</p> <p>2. The writ of error will not be dismissed, but the case will be retained for a consideration of such questions as do not depend upon the evidence for determination.</p> <p>3. The petition for injunction was legally sufficient to support the judgment, rendered thereon.</p>

<p>Complaint for land. Before Judge Roberts; Appling superior court. December 15, 1904.</p>

Complaint. Before Judge Reid. City court of Atlanta. ■ June 8, 1904.

<p>1. To properly bring under review the correctness of a ruling as to the admissibility' of evidence which a trial judge declines to exclude, the complaining party must make it appear not only that the evidence was admitted over his objection, but also what grounds of objection he urged at the time the evidence was offered.</p> <p>2. In an. action to recover damages of a warehouseman because of an alleged failure on his part to comply with the duties imposed upon him by law with respect to the proper storage and care of goods entrusted to his care, the plaintiff must recover, if at all, upon proof of the specific acts of negligence which he sets forth in his pleadings, and the trial judge should not, in his charge to the jury, give the plaintiff the benefit of any theory of recovery not covered by the allegations of his petition.</p> <p>3. If the plaintiff fails to sustain by evidence a charge of negligence made against the defendant, the judge should eliminate this feature of the case when instructing the jury as to the issues upon which they are called to pass, and not leave them to'determine whether the defendant was negligent in the respect alleged but not proved.</p> <p>4. In so far as the written requests to charge, presented by the defendant in this case, were pertinent and in accord with the law controlling the questions at issue, they were substantially covered by the charge which the judge gave of his own motion.</p>

<p>1. Where an action was based on the allegation that a passenger on a car of an electric railway, at the direction of the conductor, was required to change cars, and, while passing from one car to another, she was injured by the negligent conduct of the defendant’s agents and servants in connection with such change, an amendment which alleged an additional act of negligence forming part of the same transaction did not set up a new and distinct cause of action.</p> <p>2. Such an amendment, which alleged that “ said jerk of said car was caused by the defendant’s servants and agents in charge of said car,” was not subject to objection on the ground that it did not connect the alleged negligence with the defendant.</p> <p>8. If a car is at rest temporarily, and a passenger is lawfully leaving it, or passing from it to another car, under the direction of the conductor, and while this is in progress a sudden and violent jerk or movement of the car is caused by the company’s agents, resulting in injury to the passenger, it is not necessary to allege in detail by what particular means they caused the jerk to occur.</p> <p>4. While an independent act of negligence not connected with, contributing to, or causing the injury to a passenger is immaterial, and an amendment alleging such an act is demurrable, yet where the amendment, taken in connection with the declaration, sufficiently shows that the act alleged in it formed a part of the conduct of the defendant’s agents from which the injury was alleged, to have resulted, there was no error in overruling a demurrer thereto.</p> <p>5. Where the evidence for the plaintiff in an action for damages tended to show that the injury occurred on the same line of railroad, but at a point some 350 or 400 yards distant from the place where it was alleged in the declaration to have happened, an amendment for the purpose of correcting the allegation so as to make it conform to the evidence, but still referring to the same transaction, and not to a different occurence, did not add a new and distinct cause of action, and was not objectionable on that ground.</p> <p>6. If any objection could properly have been made to the allowance of such an amendment, it furnishes no cause for a reversal, where upon further evidence being introduced, which tended to show that the injury in fact occurred at the point originally alleged, the amendment was withdrawn.</p> <p>7. If a motion for a nonsuit should have been granted at the time when it was refused, yet if the evidence afterwards introduced supplied the deficiency, no reversal will result from such refusal.</p> <p>8. Where the presiding judge, at one part of the charge on the subject of the presumption arising from proof of injury from the running of the cars of a railroad company, or the acts of persons in its employment, did not limit such presumption to the specific acts of negligence alleged, but in his general charge did clearly and specifically confine the jury to the consideration of such specifications of negligence, this furnishes no ground for a new trial.</p> <p>9. If a car containing passengers is stopped while in transit, and the passengers are directed by the conductor to change to another car which is on a track , parallel to the first, and if while they are so doing the employees of the company put out the lights of the first car, and cause it to jerk suddenly, resulting in injury to a passenger who is in the act of making the change, this would be an injury resulting from the running of the cars of the company, within the meaning of the statute, and would also be a damage done by a person in the employment and service of the company, so as to raise the statutory presumption of negligence against it.</p> <p>10. None of the other grounds of the motion for a new trial in this case require a reversal.</p>

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. October 22, 1904.</p>

Action for breach of contract. Before Judge Reid. City-court of Atlanta. October 22, 1904. Cooley brought an action against Moss, laying his damages in the sum of $500, and alleging that on April 28, 1903, the defendant entered into the following agreement with- the plaintiff: “This agreement made this day between A. J. Moss and J. L. Cooley.

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. October 18, 1904.</p>

<p>1. A writing containing a statement that a person had been “ bribed ” to testify as a witness against one party and in the interest of his adversary imputes to such person the crime of perjury, and is libelous.</p> <p>2. The privileged communications recognized in the law of slander and libel as freeing the speaker or writer from liability are of two classes, the one where the privilege is absolute, and the other where the privilege is conditional.</p> <p>3. “The characteristic feature of absolute, as distinguished from conditional, privilege is that in the former the question of malice is not open ; all inquiry into good faith is closed.”</p> <p>4. In every case of conditional privilege, if the privilege is used merely as a cloak for venting private malice, and not bona fide in promotion of the object for which the privilege is granted, the party defamed has a right of action.</p> <p>5. An attorney at law has a conditional privilege to make, during the progress of a trial, such fair comments on the circumstances of- the case and the conduct of the parties in connection therewith as in his judgment seem proper.</p> <p>6. Ordinarily the publisher of a newspaper has no privilege as to what appears therein, but is liable for the same as any other person.</p> <p>7. The publisher of a newspaper is, however, authorized to publish a fair and honest report of the proceedings of a judicial trial; and is not liable on account of such publication, in the absence of express malice. And this is true although what appears in such report as a part of the comments of counsel would have been slanderous if uttered under other circumstances by the attorney.</p> <p>8. "Where a publication is made in a newspaper, of the proceedings of a ju-, dicial trial, in which appear what purport to be the remarks of counsel,, made during the progress of the case, which are slanderous in their nature,, and such remarks were not in fact made by the counsel, the publisher is, liable in an action of libel to the party aggrieved.</p> <p>9. There was no error in overruling the general demurrers to the petitions.</p> <p>10. Those portions of the petitions which were made the subject of special demurrers were allegations which were permissible as matter of inducement or aggravation, or by way of innuendo, and therefore were properly embraced within the pleadings, and were not subject to the objections taken, in the demurrers.</p>

Action on accident-insurance policy. Before Judge Reid. City court of Atlanta. November 12, 1904. Hawkins brought suit, in the city court of Atlanta, against 'the Fidelty and Casualty Company of New York.

Foreclosure of lien. Before Judge Lumpkin. Fulton superior 'Court. November 22, 1904. The Pittsburgh Plate Glass Company, a corporation, brought suit against the Peters Land ■ Company, a corporation, the Gale Manufacturing Company, a partnership, DeSaussure, trustee in bankruptcy of the partnership, and Daniel Brothers, a partnership.

<p>Certiorari. Before Judge Lumpkin. Eulton superior court. December 13, 1904</p>

<p>Foreclosure of lien. Before Judge Reid.. City court of Atlanta. February 3, 1905.</p> <p>The Farmers Exchange brought an. action against Mrs. M. W., Arnold and B. A. Harris, alleging that Harris was a contractor and had made certain improvements on real estate belonging to, Mrs. Arnold; that the plaintiff was a materialman and furnished materials which were used by the contractor in the improvement of the property of Mrs. Arnold; that, within three months from the furnishing of the materials so used, the plaintiff recorded its lien as provided by law; that the contract price for the improvements made by the contractor was in excess of the amount for which the lien was asserted; and that the plaintiff'had complied With its contract as to furnishing the materials ordered and used by the contractor in making the improvements upon the property. Suit was commenced within twelve months after the furnishing of these materials. The premises upon which the improvements were made were fully described in the petition; and the plaintiff prayed that its lien be enforced against the property of Mrs. Arnold, and that a general judgment against Harris should be rendered in its favor.- Mrs. Arnold demurred to the petition, on the ground that no cause of action was therein set forth, in that the plaintiff did not allege that the contractor had completed and complied with his contract, nor that the owner of the premises had not paid him the contract price of the improvements made upon his sworn statement that he had paid for the materials used the agreed price therefor or an amount equal to the reasonable value of the same. The demurrer was overruled, and Mrs. Arnold excepted.</p>

<p>Revival of judgment. Before Judge Roan. DeKalb superior court. October 15, 1904.</p>

Petition for injunction. Before Judge Eoan. Campbell superior court. January 28, 1905.

Indictment for simple larceny. Before Judge Littlejohn. Webster superior court. April 5, 1905. Homer Henderson was indicted for simple larceny. When the case was called for trial a practicing attorney stated to the court that he «wished Ms name to be marked for the State to assist the solicitor-general, as he had been employed by the prosecutor.

<p>Indictment for voluntary manslaughter. Before Judge Beagan. Fayette superior court. May 26, 1905.</p>

<p>Injunction. Before Judge Rawlings. Screven superior court. April 14, 1905.</p> <p>- L. H. Hilton filed his. equitable petition against the mayor and council and marshal of the City of Sylvania, alleging as follows: Under the act of February 20,1875 (Acts 1875, p. 186), the town of Sylvania, which had been chartered under the general laws of the State, and located in the county of Screven, was reincorporated.to be governed and controlled by sections 774 to 797, inclusive, of the Code (now sections 684 to 710 of the Political Code of 1895); and under an act of the legislature approved December 12, 1902 (Acts 1902, pp. 636, 637), it was made the City of Sylvania, the laws and ordinances of the town being left in force and made applicable to the city. Oh January 7, 1897, the main business block and business portion of the town were destroyed by fire, and immediately thereafter, on January 13, an ordinance was passed of which the following are the material portions:</p> <p>“ An ordinance to prescribe the fire limits of the town of Sylvania, to prevent the erection of wooden buildings therein, and for other purposes.</p> <p>“ The common council of the town of Sylvania do ordain, that from and after the passage of this ordinance the fire limits of said town shall be the space embraced within the following territory, to wit: [describing it].</p> <p>“ Section 2nd. Be it further ordained, that all buildings hereafter to be erected within said fire limits on said lots and closed street shall be constructed of brick, stone, or other incombustible substance or material, and covered with tin or metallic or fireproof roofing. Provided, it shall and may be lawful to repair any wooden building now erected on said lots or closed streets, or to build any barn, stable, or other outbuilding -under any sheltered or covered roof now standing, with the permit of the mayor.</p> <p>“ Section 3rd. Be it further ordained, that no wooden building shall be erected on the lots adjacent to said fire limits, except by special permit of the mayor, who shall examine the locality upon which it is sought to erect said- wooden building, and determine whether the erection thereof will endanger other buildings near by.</p> <p>“ Section 4th. Any person erecting or attempting to erect any wooden building in violation of this ordinance shall be punished by a fine not less'than $5.00, nor -more than $50.00, and imprisoned not more than thirty days, in the discretion of the mayor, and for the second offense said parties shall be fined not less than $10.00, nor more than $100.00, and imprisoned not more than thirty days.</p> <p>“ Section 5th. Be it further ordained, that any building erected in violation of this ordinance shall be deemed a nuisance; and if the party erecting or causing same to -be erected, or-who erected the’ same, shall fail or refuse to have the same removed after being duly notified, the mayor shall cause the same to be removed by the marshal at the expense of such party.”</p> <p>The plaintiff alleged, that the purpose and intention of the ordinance was,to require buildings thereafter erected in the fire limits, if framed or constructed of wooden material, to be covered on the outside with some incombustible material or substance, such as tin or iron, and that such construction, from the passage of the ordinance to within a few days prior to the filing of the petition, had been placed on the ordinance by the mayor and council, by permitting and allowing a number of buildings to be erected within the fire limits since the ordinance was passed. Two persons, one of whom was a member of the council, were preparing to erect buildings to be framed of wood covered with sheet iron, and the mayor and council were not making any effort to prevent this, and never contended that such buildings were prohibited by the ordinance until very recently, when plaintiff was about to erect a small restaurant within the fire limits, to be so framed of wooden material and covered on the outside with corrugated iron, an incombustible material or substance. The restaurant which was being erected was to be leased to a colored woman, which met with the disapproval of the mayor and council, and for that reason alone they were endeavoring to prevent him from erecting the building. On March 6, 1905, at a called meeting, and without notice to him or giving him a chance to be heard, they had passed an ordinance declaring the building to be a nuisance, and ordering it to be removed immediately, and served notice upon him that unless he removed it they would cause it to be done. In February, 1905, the marshal, under order of the mayor, arrested him for violating the ordinance, and without a trial imposed a fine of ten dollars on him, to which sentence he had entered an appeal to council as provided by the ordinances. Section fourth of the ordinance under which the fine was imposed is void, because the mayor and council can not impose a fine exceeding fifty dollars, nor imprison more than thirty days, and such imprisonment can only be in the alternative, while the ordinance seeks to provide a fine exceeding fifty dollars, and provides for a fine and imprisonment at the same time. Plaintiff contends that the building was not in violation of the ordinance. If defendants are allowed to tear down the building as they are threatening to do, and continue to harass him, he will be irreparably damaged. He prayed that they be enjoined from tearing down or interfering with the erection of the building, and from enforcing the prosecution against him for a violation of the ordinance.</p> <p>The defendants’ answer was, in brief, as follows: They admitted the incorporation of the city and the passage of the ordinance. They denied the construction placed by the plaintiff thereon. “ These defendants answer that they are not bound by the construction put upon the ordinance by other city authorities, or by any mayor or council of Sylvania which has been in authority heretofore; and .while the present city authorities think that some of the buildings mentioned in said fifth paragraph of petitioner’s petition were erected not in compliance with said ordinance and in violation of same, that the proper construction of these buildings is not now under consideration, and has no bearing upon the determination of the present case.” They admit that two persons are erecting buildings within the fire limits in violation of the ordinance, but deny that they expect to allow such buildings to be completed in that manner. ■ "When plaintiff was about to begin erecting, or had just erected, the pillars upon which he expected to construct a small restaurant within the fire limits in violation of the ordinance, in order to save him from loss they notified him of their construction, and of their intention to prevent him from building it, “ not entirely for the reason that he expected to lease said restaurant to a colored woman whose past conduct in the town they did not approve of, but for the additional reason that the building of a restaurant in the main business block, and right in the rear of a number of mercantile establishments, and where combustible substances were liable to be ignited by sparks from said restaurant, and cause danger from fire to be considerably increased.” They admit the passage of the order declaring the building to be a nuisance and directing it to be removed, but deny that it was necessary to give him notice before doing so, as he knew well the meaning of the ordinance, and the order was passed so as to give him an opportunity to test its meaning. They deny that he was fined without a trial, and say that he appeared and admitted that he was erecting the building, and, ás according to the construction of the mayor and' council he was doing so in violation of the ordinance, he was fined, and there was no need of any further trial. The entire inside of this building is not even covered with any incombustible substance, but will be wholly of wood, and exposed to fire. To construe the ordinance as plaintiff seeks to do would practically nullify it, and destroy the beneficial results that were intended to be reaped from adopting it.</p> <p>After hearing evidence the presiding judge granted the injunction, and defendants excepted. They assign error because of the admission, over objection, of evidence as to what certain witnesses thought the mayor and council meant by the passage of the ordinance ; because another witness was allowed to testify, over objection, as to the construction placed upon the ordinance by various officers of the city at the time of- its passage, and since; because of the grant of injunction; and because the court erred in not construing the ordinance in accordance with its written words, instead of according to parol testimony that other buildings of like character had been constructed since' its passage, and held that this building could be erected because the city authorities had allowed other buildings of like character to be erected in the past.</p>

Action for damages. Before Judge Hodges. City court of Macon. November 25, 1904. The plaintiff was in the employment of the defendant as a car-greaser and repairer, and was injured by being struck by the tender of a locomotive, or by something that projected from it, at night.

<p>Motion for new trial. Before Judge Hodges. City court of Macon. November 26, 1904.</p>

<p>Action for damages. Before Judge Hodges. City court of Macon. December 2, 1904.</p>

■ Action for damages. Before Judge Hodges. City court of Macon. January 23, 1905. ■ . The plaintiff below, J. M. Mason, instituted a suit' for damages against the Macon Railway and Light Company, and recovered the sum of $2,500. The allegations of- his petition were substantially as follows: On September 6, 1903, he boarded .one of the electric street-cars owned and operated by the defendant company.

<p>Levy and claim. Before Judge Holden. Hart superior court. December 22, 1904.</p>

<p>Petition for injunction. Before Judge Kimsey. Hall superior court. April 12, 1905.</p> <p>The record discloses the following state of facts: House and Oliver were partners. They agreed upon a dissolution and settlement of the partnership affairs. Under the agreement certain assets were turned over to Oliver, and House delivered to him his note for $850. Thereafter House brought an equitable petition against Oliver and Martin (the latter having become the owner of the $850 note), in which it was alleged that a fraud had been perpetrated'upon House in the settlement of the partnership affairs, as a result of which Oliver had received more than he was entitled to, such fraud consisting in misrepresentations as to the amount of the debts due by the partnership, etc. It was alleged that upon an equitable and fair settlement of the partnership affairs Oliver was not entitled to the note for $850, nor to any of the assets delivered to him, and hence that the note was entirely without consideration; and that Martin was not an innocent purchaser without notice. The prayers were, for a full and complete accounting, that the $850 note be declared void and canceled, and that Oliver be required to return the other assets which had been turned over to him. The case was referred to an auditor, and while it was pending on exceptions to the auditor’s report, House, with the consent of Oliver and Martin, dismissed the case. Subsequently to the dismissal Martin brought a suit, in the city court of Hall county, against House on the $850 note, and'Oliver, in the same court, brought a suit against House for the' amount which he claimed House had wrongfully collected of the assets' turned over to him in the partnership settlement. The present petition was brought by House against Oliver and Martin, attacking the partnership settlement upon the grounds on which it was assailed in the original suit, and also upon other grounds ; and the prayers were, for an accounting between the parties, that the contract of dissolution be canceled, that Martin be decreed not to be an innocent holder of the note and the note be delivered up tó be canceled, that if this can not be done, House recover of Oliver the full amount of the principal, interest and costs that he may be required to pay to Martin, and that- he have judgment against Oliver for the value of the assets of the partnership turned over to him in the settlement, that he he restrained from collecting any of the assets that remain uncollected, and that the suits in the city court be enjoined. Oliver answered, denying all of the allegations of fraud, and set up that the settlement was fair in every way. The answer of Martin set up that he was an innocent purchaser of the note for value and without notice. The evidence as to the details of the settlement was conflicting. The judge refused to grant the injunction restraining the suits in the city court, and House excepted.</p>

Complaint. Before Judge Lewis. Putnam superior court. September 20, 1904.

<p>Eviction. Before Judge Roberts. Montgomery superior court. November 7, 1904.</p>

<p>1. “Where a creditor, his debtor, and a third-person who owes the debtor agree in parol that such third person shall be substituted for the debtor and that the latter shall be released, the case is not within the statute of frauds, but the debt is extinguished as to the debtor, and the third person becomes, by substitution, the debtor in his place.”</p> <p>2. While the petition alleged an agreement between the debtor and defendants, who owed him, to pay the former’s debt to the plaintiff, the averments were not sufficient to show that the plaintiff was a party to the agreement, or that the defendants made to it any promise to pay the debt.</p> <p>3. The demurrer was properly sustained.</p>

<p>Application for temporary alimony. Before Judge Parker. Clinch superior court. February 18, 1905.</p> <p>Lula E. Sweat brought suit for divorce against her husband, S. A. Sweat, and, pending the suit, filed an application for an ■ allowance for temporary alimony and counsel fees. The application was submitted to the judge on affidavits for both parties, such affidavits relating entirely to the conduct and character of the husband. There was no evidence before the judge as to the husband’s financial condition, but he admitted, in his answer to the suit, that he was sheriff of Clinch county; that the income from his office was from nine hundred to one thousand dollars a year; that he had twelve shares of bank stock worth $1,200 ; and that he owned real estate worth $2,500. The judge allowed the plaintiff.$20 per month for her support and $75 counsel fees. The defendant excepted. The only contention made by the plaintiff in error in this court is, that, as there was no evidence of the value of the services of the plaintiff’s counsel, it was erroneous to allow any sum as counsel fees.</p>

<p>Complaint. Before Judge Reid. City court of Atlanta. December 17, 1904.</p> <p>Tift, as trustee in bankruptcy of Griffin, brought suit against John Silvey & Company, alleging as follows: On March. 15, 1902, Griffin, while insolvent, transferred and delivered to the defendants a portion of a certain stock of goods belonging to him. At the time of the transfer he was insolvent, and the defendants knew and had reasonable cause to believe that such was the case. The effect of the transfer was to. enable them to obtain a greater percentage of their debt than the other creditors of the bankrupt of the same class received, and was a preference in contemplation of the act of Congress of July 1, 1898, entitled “ An act to establish a uniform system of bankruptcy throughout the United States.” The defendants received this preference, and had reasonable cause to believe that it was intended to give them a preference in contemplation of the act of Congress. They took possession of the property, carried it away, and converted it. On April 29, 1902, certain creditors of Griffin filed a petition in bankruptcy in the district court of the United States, alleging the commission of certain acts of bankruptcy by him, and praying that he be adjudicated a bankrupt. He was duly adjudicated a bankrupt, and the plaintiff was appointed trustee. In that capacity and under leave of the court, he sues to recover of the defendants the value' of the property so taken by them, which is alleged to be $1,400. The plaintiff alleged that the defendants were concluded and es-topped from setting up in this suit “ any defense in contradiction to the following facts.” The petition then contains what appears to be a copy of a part of the petition in bankruptcy. A demurrer having been filed, the entire petition was set out by amendment, which showed that a number of creditors of Griffin filed a petition to have him adjudicated a bankrupt, alleging him to be insolvent. Three acts of bankruptcy were alleged: First, that, within four months next preceding the filing of the petition, Griffin, while insolvent, transferred a portion of his property, namely a large part of his stock of goods, of the value of $500, to one Weslosky, doing business under the trading name of the Albany Grocery Company, a creditor, with intent to prefer him over his other creditors. Second, that, while insolvent and with in four months next preceding the filing of the petition, he transferred a portion of his property, namely about $1,400 worth of hats, shoes, and dry goods, to John Silvey & Company, creditors of his, with intent to prefer them over his other creditors. Third, that, while insolvent and within four months next preceding the date of the petition, he suffered and permitted one Turner, a creditor, to obtain a preference through legal proceedings, and did not within five days before the sale of the property vacate or discharge such preference, the levy being under a distress warrant for rent for $127, and being made upon a lot of hats, shoes, dry goods, etc., which were sold under the warrant, and the proceeds applied to the payment thereof. A subpoena issued to the alleged bankrupt on April 29, 1902, and on May 28 he was adjudicated a bankrupt. Later-the trustee was regularly appointed.</p> <p>To that portion of the petition which set up an estoppel a demurrer was urged on the ground that some of the allegations were not properly pleaded, and did not set out facts constituting an estoppel, and merely alleged legal conclusions. The allegations demurred to were as follows: “Petitioner further represents that defendants to this case are concluded and estopped from setting up in this suit any defense in contradiction to the following facts.” Also, “The allegations of said petition set out above, being necessary allegations of said petition, the said John Silvey & Co. could then and there have pleaded, in defense to said petition, denial of the facts set out in the allegations of said petition transcribed above, and, having failed in said court to sustain any denial or contradiction of any of said facts and allegations, they are now concluded and estopped from contradicting and denying them, because of the judgment of the district court of the United States of the southern district of Georgia, made in said matter in favor of the petitioners in bankruptcy, declaring said Ernest H. Griffin bankrupt, said judgment being made and rendered duly and regularly by a court of competent jurisdiction.” The court overruled the demurrer to the declaration as amended, and exceptions pendente lite were taken. The jury found for the plaintiff $468.68 principal, besides interest. Defendants moved for a new trial, which yras refused, and they excepted. They also assigned error on the overruling of the demurrer.</p>

Action on bond. Before Judge Calhoun. City court of Atlanta. January 14, 1905. The Ooffin-Fletcher Packing Company brought suit against Cross, Brown, and the Fidelity and Deposit Company, on an attachment bond.

Action for damages. Before Judge Eeid. City court of Atlanta. January 30, 1905. Celia Idlett brought suit against the City of Atlanta to recover ■damages on account of a personal injury. She alleged as follows: In the sidewalk of one of its public streets there was a hole about six feet long next to the inside of the walk, crescent shaped, and about three feet wide at the widest point, extending from about one half to one third of the way across the pavement.

<p>Ne exeat. Before Judge Pendleton. Fulton superior court. May 25, 1905.</p> <p>L. L. Lamar brought suit against her husband, Rufus Lamar, for permanent alimony, and made application for temporary alimony. She also prayed the superior court for a writ of ne exeat, alleging that her husband was receiving a good income from his labor, amounting to about twenty dollars per month; that he had abandoned her by forcing her to leave his place of residence without cause; that she was without means of support-; and that he was preparing and threatening- to leave the State to -avoid supporting her and their minor child. The application was duly verified, and the writ issued under the order of the judge. A motion was made to dismiss it, which was refused, and the defendant excepted.</p>

<p>Equitable petition. Before Judge Roan. DeKalb superior court. June 4, 1904.</p>

<p>Action for damages. Before Judge Hodges. City court of Macon. September 29, 1904.</p>

Action for breach of contract. Before Judge Hodges. City court of Macon. December 14, 1904. Timmerman brought suit against Stanley, alleging as follows: On July 29, 1903, the plaintiff bought of the defendant a scholarship in Stanley’s business college, in the city of Macon, in the telegraphic department, which embraced a course in learning telegraphy in said college.

<p>Injunction. Before Judge Freeman. Troup superior court. Máy 18, I§05.</p> <p>Cline and others filed their equitable petition alleging that the county school commissioner of Troup coimty had received the county school fund; that it was in the hands or under the control of the county board of education; and that the commissioner and the board of education were about to pay over to the officials of an independent local system in the City of West Point an amount in excess of that which was allowed by law, and would do so unless enjoined. By an amendment the board of education of West Point was made a party. It was alleged that the amount to be paid the local school system should be determined according to the school population, and not according to school attendance; but that th.e payment which it was proposed to make would be according to attendance. The defendants answered, and contended that the payment which would be made would be according to law, and that the contention of the plaintiffs would work an unjust and unequal mode of distribution. They also demurred to the petition. On the hearing the presiding judge granted the injunction, and the defendants excepted.</p>

<p>Action for damages. Before Judge Reagan. Henry superior court. January 5, 1905.</p>

Petition for injunction. Before Judge Reagan. Pike superior court. May 19, 1905. Clark and his wife Ida claimed tide to a house and lot in Barnesville, and sued out a dispossessory warrant to evict Maria Chatfield as a tenant holding over. Maria Chatfield filed a petition praying that the Clark* be enjoined from prosecuting the dispossessory warrant.

<p>Petition for injunction. Before Judge Sheffield. Terrell superior court. January 18, 1905.</p>

<p>Under the facts appearing in the record, the court erred in dismissing the motion for new trial.</p>

Equitable petition. Before Judge Lumpkin. Eulton superior court. August 2, 1904. The case made by the petition is substantially as follows: Mrs. Annie Curran died intestate, the owner of described realty in the city of Atlanta. She had previously executed to named persons, as trustees of the Penn Mutual Life Insurance Company, a non-resident corporation having an office and agent in Atlanta, a trust deed to the property to secure a loan of $3,700.

<p>Appeal. Before Judge Lumpkin. Eulton superior court. September 24, 1904.</p>

<p>Affidavit of illegality. Before Judge Lumpkin. Fulton superior court. September 24, 1904.</p>

<p>Handing to the clerk a petition, with Instructions to indorse upon it an entry, of filing and to issue process, but “ to hold it ” until the plaintiff notifies him further, is not a filing of a suit or the commencement of an action, within the meaning of the Civil Code, §4973, until the instructions are withdrawn ; and if the bar of the statute of limitations attaches before the instructions are withdrawn, the suit is barred notwithstanding service was regularly perfected after the withdrawal of the instructions.</p>

<p>Action for damages. Before Judge Roan. DeKalb superior court. November 12, 1904.</p>

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