Volume 124 — Georgia Reports

<p>To maintain a “place” of any character where persons are allowed, to bet, offer to bet, place an order for a bet, or telegraph or telephone bets on races of any sort, is an act prohibited by the Penal Code, §398, and such an act can not, in the absence of express legislative authority, properly be made penal by a municipal ordinance.</p>

<p>Indictment for unlawful sale of mortgaged property. Before Judge Hamilton. Floyd superior court. • June 22, 1905.</p>

<p>The evidence, although conflicting, was sufficient to authorize the verdict, and there was no error in overruling the motion for a new trial.</p>

<p>Accusation of larceny from the house. Before Judge Hodges. City court of Hartwell. June 17, 1905.</p>

<p>Indictment for assault with intent to rob. Before Judge Little-john. Sumter superior court. July 1, 1905.</p>

<p>Indictment for murder. Before Judge Little. Taylor superior court. July 3, 1905.</p>

<p>The charge complained of really amounted to an intimation or expression by the judge as to what had been proved in the case; and, so construed, a new trial is required under that provision of law which prohibits a judge from expressing or intimating to a jury what has or has not been proved.</p>

<p>Indictment for murder. Before Judge Lewis. Jasper superior court. July 10, 1905.</p>

<p>1. In a prosecution for assault with intent to murder, where the defendant is convicted of the offense of unlawfully shooting at another and by his own statement is guilty of that offense, he can not justly complain of the admission of evidence offered to show malice on his part, even though the evidence admitted was inadmissible for that purpose.</p> <p>2. Nor in such a ease would it be error requiring the grant of a new trial to charge the jury as to the law of voluntary manslaughter.</p> <p>3. An instruction touching the law of self-defense, though not strictly accurate, will not be ground for a new trial where, from the defendant’s statement, the shooting was not justifiable.</p>

Accusation of cheating and swindling. Before Judge Hammond. City court of Griffin. July 7, 1905.

<p>Accusation of cheating and swindling. Before Judge Overstreet. City court of Sylvania. July 12, 1905.</p> <p>An accusation was brought in the city court of Sylvania against Henry Vinson, charging him with procuring money and other articles of value on a contract to perform services, with intent to defraud the hirer, under the act of 1903 (Acts 1903, p. 90). He filed a demurrer to the accusation, and, upon its being overruled, filed a bill of exceptions pendente lite. He was convicted, moved for a new trial, and upon the overruling of the motion excepted.</p>

<p>An accusation in a city court, charging- one with, the offense of violating the provisions of the act approved August 15, 1903 (Acts 1903, p. 90), should set forth, at least in substance, a contract definite and certain as to its terms and duration; and an accusation wholly failing to meet this requirement is fatally defective, and a special demurrer thereto, on the ground that “said accusation fails tp set forth any contract, not stating when said contract was to begin nor end,” should! be sustained.</p>

Indictment for assault with intent to murder. Before Judge Holden. Hart superior court. June 22, 1905. Massey was indicted for assault with intent to murder, and was convicted of the offense of shooting at another.

<p>Indictment for simple larceny. Before Judge Hamilton. City ■court of Floyd county. July 13, 1905.</p>

<p>1. One who provokes a difficulty may yet defend himself against violence on the part of the one provoked, if the violence be disproportionate to the seriousness of the provocation, or greater in degree than the law recognizes as justifiable under the circumstances.</p> <p>2. Except in so far as the charge of the court conflicted with the ruling-announced in the preceding note, there was no error on the trial to which exception was properly taken.</p>

<p>1. Under the act of December 8, 1899 (Van Epps’ Code Supp. §§6097-6103), an inspector of roads and bridges who has been sworn in as a deputy sheriff may arrest for the violation of the criminal laws of this State, as other deputy sheriffs. His appointment and qualification as a deputy sheriff may be shown by proof that lie acts as such, without production of the written appointment.</p> <p>2. The jury were authorized to infer from the evidence that the accused shot, with intent to kill, an officer engaged in making an arrest for a crime committed in his view; and the verdict of guilty of assault with intent to murder will not be disturbed.</p>

Accusation of stabbing. Before Judge Hodges. City court of Macon. July 8, 1905.

<p>Motion to dismiss tbe writ of erroT.</p>

Indictments lor murder. Before Judge Mitchell. Lowndes superior court. September 9, 11, 1905. Milton, Jesse, Leonard, and J. G. Rawlins were arrested for the offense of murder, and were committed to jail. A special term of the court was called for the disposition of their cases. When the grand jury was organized, and before any indictment was preferred-, each of the accused filed a written challenge to the array, upon the ground that the grand jury was not legally organized.

<p>As the city court of Tifton has jurisdiction, civil and criminal, in and over the city of Tifton (Acts of 1902, p. 174), proof that an offense was committed in a church located “in the edge of Tifton” sufficiently establishes the venue and authorizes that court to exercise its jurisdiction in the premises.</p>

<p>A motion for a new trial made upon the ground, amongst others, that the verdict was contrary to law and the evidence should be sustained and a new trial granted if the evidence fails to show in what county the alleged offense was committed.</p>

<p>Indictment for gambling. Before Judge Cann. Chatham superior court. July 24, 1905.</p>

Validation of bonds. Before Judge Holden. Elbert superior court. July 17, 1905. An election was held in the City of Elberton on June 5, 1905, for the purpose of determining whether or not bonds should be issued to the amount of $20,000 for the purpose of building and equipping a sewer system, and resulted in favor of their issuance.

<p>Certiorari. Before Judge Lewis. Jasper superior court. September 26, 1905.</p> <p>•cited, on habeas corpus: Ga. B. 59/555; 68/650; 76/491; 1 Ga. Dec. 93. On certiorari: Civil Code, §4652; Ga. B. 60/100; ■68/652; 107/784; 116/705.</p> <p>cited Ga. B. 76/484; 116/108.</p>

<p>Accusation of cheating and swindling. Before Judge Hamilton. •City court of Floyd county. July 22, 1905.</p>

<p>1. The act of February 26, 1877 (Acts 1877, p. 335), prohibiting the sale of intoxicating liquors upon the Island of St. Simons, is not unconstitutional as containing matter different from that expressed in its title, nor as referring to two subject-matters.</p> <p>2. If there is an irreconcilability between the domestic-wine act of February 27, 1877 (Acts 1877, p. 33), and the act referred to in the preceding note, the conflict extends only to the sale of that class of wine the sale of which is the subject of the general law, and the local act would be un-repealed so far as it related to intoxicating liquors other than wine of the character referred to in the general law.</p>

<p>1. The title of the act approved December 15, 1900, to wit, “An act to cause and establish a new charter for the City of Milledgeville; to establish the office of recorder; to enlarge the jurisdiction of the police court; to more accurately regulate the power of'the mayor and aldermen of said city relative to the public streets; to provide methods of contesting elections; to confer power upon the mayor and aldermen to assess and collect taxes and licenses; to authorize condemnation of private property for public purposes; to authorize the establishment of a city chain-gang; to confer jurisdiction upon the mayor and aldermen over the city cemetery and other public property; to regulate the establishment of nuisances; to authorize the collection of gross-sales tax; to provide for support of schools within the limits of said city, and for other purposes,” contains only one subject-matter, and that is the grant of a new charter to the City of Milledgeville, with such incidental powers as are germane to that object.</p> <p>2. The sixty-fifth section of the act, which provides that “all ordinances or ordinance, or any part, clause, or section of any act or acts now in force in said city, which is not in conflict with this act, -are hereby continued to be a part of the charter of said city, and are hereby declared of full force and effect,” is broader than the title of the act, and such provision is void because it is variant from what is expressed in the title.</p> <p>3. But the entire act is not void. The remainder of the act is complete in itself and capable of being enforced independently of the provisions of the sixty-fifth section, and is therefore valid.</p> <p>4. The police court has full jurisdiction to enforce the ordinances of the city and to impose sentences for their infraction; and where a person pleads guilty to the violation of an ordinance, the validity of which is not questioned, and is in the custody of the proper officer by virtue of the sentence lawfully imposed by the court, his detention is not illegal.</p>

<p>Certiorari. Before Judge Pendleton. Fulton superior court. July 28, 1905.</p>

<p>Petition for certiorari. Before Judge Lewis. Putnam superior court. August 5, 1905.</p>

<p>1. A challenge to the array is an objection to all the jurors collectively, because of some defect in the panel as a whole.</p> <p>2. Where it was contended that certain members of the jury whose names appeared on the panel had just before been members of a jury who had found a verdict of guilty against another person charged with gaming while playing in the same game involved in the charge against the defendant, the point should have been raised by a challenge to the polls, and not to the array.</p>

<p>Indictment for assault with intent to murder. Before Judge Bartlett. Douglas superior court. ■ July 5, 1905.</p>

Accusation, of unlawfully pointing pistol. Before Judge Baines. City court of Dawson. July 25/1905. Balph was tried in the city court of Dawson, upon an accusation charging him with pointing a pistol at another.

<p>1. Even, if a person be ineligible to bold the office of jury commissioner, yet if be is appointed to such office and acts therein, he is, while so acting, a jury commissioner do facto, and the official acts of the board of jury commissioners wherein he participated are valid, and can not be collaterally attacked upon the ground that such person was incompetent to-hold the office of jury commissioner.</p> <p>2. The evidence fully warranted the verdict, and there was no error in refusing to grant a new trial.</p>

<p>Indictment for murder. Before Judge Reagan. Spalding superior court. August 28, 1905.</p> <p>cited .2 Stark. Ev. (6th Am. ed.) 27; Whart. Cr. L. (6th ed.) 489, 694; 1 Gr. Ev. (16th ed.) 361; 6 Am. & Eng. Ene. L. (2d ed.) 542; 53 L. R. A. 402; 118 Qa. 807; 121 Qa. 615.</p> <p>cited Ga. R. 21/227; 87/622; 91/278; 92/32; 93/208; 122/564.</p>

<p>Accusation of forcible detainer. Before Judge Hollingsworth, City court of Fayetteville. August 31, 1905.</p> <p>Mrs. K. C. Ellis was tried for the offense of forcible detainer, and the jury returned a verdict finding her guilty. She made a motion for a new trial, which was overruled, and she excepted. Upon the trial Mrs. L. B. Stewart, the prosecutrix, testified as follows: '“My husband, W. B. Stewart, is dead. I know the land in controversy. My husband had tenants in possession of it about five years before he died, and he died on the 16th day of June, 1901, and since that time the tenants under me have been cultivating it and paying rents to me. W. J. Farmer was the first tenant put in by Mr. Stewart, and he stayed until about two years ago, and then H. Henson went in as tenant; making about seven years that Mr. Stewart, my husband, and I have received the rents from the place. Mr. Henson, the tenant for the last year, moved away from the place, and on or about the 30th day of December, 1904, I went to the place and found Mrs. K. C. Ellis in the house and her husband with her. She had one bedstead in the house and some other furniture, consisting of a bureau, chairs, etc., and I noticed that she had a shotgun sitting up by the front door and a rifle by the bed, near where she was. I asked her whose furniture it was, and she said it was hers; and I asked her where our folks, were that were, here, and she said they had moved over to G-. W. Clark’s. I asked her what the furniture was doing there, and she said it was her furniture, that she had moved there; and I asked her why she did so, and she said the place was hers and she intended to keep it until twelve men decided it was not hers. I asked her for the key, and she said she had the key but would not give it to me. I then left her and told her I would see her again. I went back on the 4th day of January, 1905, and saw Mrs. Ellis again, the defendant, and asked her for the key, and she told me that I would never get the ke}' until twelve, men decided it was my place — said she would lie in jail six months before she would give it to me. I told her I did not think she had treated me right, and she said it was her place and she would die before she got out, and got excited, and when she said that she came down with one hand into the other, this way [witness holding one hand up and the other out and bringing one hand down into the other]. Her husband walked up and told her to be quiet and not to get excited. The place is in this county. While I was talking to her, her husband and children came up, and I asked her husband why he did not have his wife move back to her place, and he said she claimed the place and was living there because she claimed it. I then told her she would regret this. I then went around and took .some nails and nailed up the windows, and as I went around to nail them up, she told me that she had saved me the trouble, as she had already nailed the windows down. I could not nail up the front door; I could not get her out. I did not put my hands on her, as I did not want any trouble. Mrs. Ellis did not make any effort to strike me, and I did not try to take hold of her to put her out, nor did I put any of the things out. My husband, W. B. Stewart, died the 16th day of June, 1901, leaving me and five children, all minors except one. When I first went to the house, Mrs. Ellis and one of her children were there and in a short time the child left and Mr. Ellis and the children came up and all came in there. I had my little daughter with me, and of course I could not put them out. I had sent a man down, the man I rented to, over there before; so they went in without my consent or knowledge and hold the same against my will and consent.” The husband of the accused testified that he slept in the house at night, and that the accused stayed there during the day, and sometimes, with him, at night. It was also shown that the property in question was, in February, 1902, duly set apart to Mrs. Stewart and her minor children, from the estate of her deceased husband, as a year’s support.</p>

<p>Indictment for assault with intent to murder. Before Judge Heagan. Fayette superior court. September 2, 1905.</p>

. Indictment for misdemeanor. Before Judge Burch. City court of Dublin. September 4, 1905.

<p>Indictment for -unlawful sale-of liquor. Before Judge Blalock. City court of Jonesboro. September 1, 1905.</p>

<p>Indictment for assault with intent to murder. Before Judge Hammond. Richmond superior court. September 22, 1905.'</p> <p>Pollard was charged with the offense of assault with intent to murder. Upon the trial of the case substantially the following evidence was introduced: “Henry Pollard was standing near the water-cooler, and Captain Thomas told him to take a seat, and he and the fellow that was shot commenced quarreling, and a woman asked me to hand her her satchel, and I heard this fellow that was shot say to Henry Pollard, T’ll make you jump off this train/ and he says, ‘No, you won’t/ and the fellow raised up with'his left hand towards me, and I could not see the other man. As the fellow raised up . . Henry [the defendant] shot him one time. [The man wounded] turned and started toward Henry Pollard before Henry shot him.” Other witnesses gave practically the same testimony, except the man who was shot, who testified that the accused started quarreling with him about a seat, and that he was just getting up out of the seat and out of the defendant’s way when he was shot. He admitted that he had been drinking just prior to the time of the shooting. The defendant in his statement said that after being told by the conductor to tálce a seat, he went to the nearest vacant seat, upon which there was a box. There was a man occupying half of the seat, and defendant requested him to move the box; the man replied it was not his; whereupon the man who was shot, who was sitting in an adjoining seat, exclaimed with an oath, “Don’t you move that box.” Defendant turned to him and said, “Captain Thomas told me to come up here and get a seat; move that box, whomsoever it belongs to.” At this, the man who was shot, after exhausting his powers of invective, assured the defendant that if he moved the box it would be at the peril of his neck. “When he said that,” says the defendant, “he jumped up and throwed his hand behind him like he had something to shoot me with, and I grabbed my pistol out of my breast coat pocket and shot him. . . I didn’t do it with the intention to kill Mm, but just to keep him from doing me injury.” The jury returned a verdict of guilty; whereupon the defendant made a motion for a new trial, upon the general grounds, and because the court erred in charging section 73 of the Penal Code in reference to mutual combat, such charge being irrelevant and not supported by the evidence, and tending to confuse the minds of the jury upon the law of homicide, the theory of the defense being that defendant shot while under the fears of a reasonable man. Error was further assigned because the court failed to charge the law of assault and battery, and because it did charge 'the law relating to voluntary manslaughter. Error was also alleged to have been committed because the court charged the jury as follows: “If you believe, from the evidence in the case and the law given you in charge, that the defendant is guilty of the offense of murder, you should so find. If you find that the defendant, while not guilty of the offense of murder, yet is guilty of the offense of manslaughter, it would be proper, and you should so find/5 the error of such charge being that it was not warranted by the indictment, and because it unduly influenced the minds of the jury, Upon his motion being overruled the defendant excepted.</p>

<p>1. When a theft of money is charged, and a national hank bill is produced on the trial and identified as part of the money alleged to have been stolen, the bill itself is' sufficient evidence that it is worth its face value.</p> <p>2. The evidence connecting the defendant with the crime, though circumstantial, was sufficient to establish his guilt.</p>

Exceptions to auditor’s report. Before Judge Boan. DeKalb superior court. August 26, 1905.

<p>Interpleader. Before Judge, Holden. Jefferson superior court. May 10, 1905.</p>

<p>Action on insurance policy. Before Judge Eve. City court of Richmond county. January 13, 1905.</p> <p>Harris, a negro of eighty-four years, whose eyesight was bad, wbo could sign his name but could read very little, held a policy of fire insurance in the German American Insurance Company for $300 upon his house and furniture, which would expire in June, 1903. In the preceding month he applied to the plaintiff in error for insurance, making known to its solicitor who took his application the existence of the insurance in the German American Company. The solicitor filled an application blank which, as introduced in evidence, appears to have been signed by Harris, and contains the folr lowing question and written answer: “Are you insured in any other company or association; if so, in what amount? Yes, $300 with Phinizy Co., expires some time in June; will not renew.” Harris testified that he did not remember signing this paper, and denied knowing that this statement was contained therein; but testified that he refused to give a promise, asked for by the solicitor, not to renew his former policy when it expired. The plaintiff in error issued to him a policy for $300 on his house and $100 on his furniture, “in consideration of the stipulations herein named and the application which is made a part of this contract,” and one of the printed stipulations therein was: “This certificate shall be void if the member has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the property covered by same.” On the application blank was printed the following, just before the signature of the applicant: “If I make any false statement to secure said certificate, same shall be void.” A fire occurred in September, 1903, resulting, according to the testimony for the plaintiff, in a loss of $400 or more, the house and furniture being valued at $700 to $800. The testimony for the defendant was to the effect that its agent appraised the loss at $44; and it was contended that the recovery could, not be greater than $62.50, as the plaintiff had received that sum from the German American Company in settlement of its liability, and the policy sued on contained the further stipulation: “This association will only be liable for their proportionate part of any loss or damage to property, where insurance is carried by other companies on same.” It was in evidence for the plaintiff, that on making claim against the German American Company after the fire, that company denied liability on the ground that its policy contained a condition that it should be void if any other insurance .were effected on the property covered thereby, except by written consent endorsed thereon or added thereto, which consent had not been obtained; that its agent said the damage was not over $125, and declined to pay that, but did pay the plaintiff's attorney $62.50 as a gratuity and not as admitting liability. The testimony for each party was in conflict with that of the other upon the issue of concealment and misrepresentation. The jury found for the plaintiff $244, and the defendant excepted to the refusal of a new trial, the grounds of the motion therefor being indicated by the headnotes.</p> <p>cited Civil Code, §§5166, 2093, 2097, 2098, 2101, 2109, 3732; Ga. B. 106/152; 110/461; 120/803; 115/194.</p> <p>cited Ga. B. 75/331, 340, 358; 40/135; 41/660; 91/719.</p>

<p>Certiorari. Before Judge Hammond. Richmond superior, court. ’’ May 13, 1905.</p>

Action for damages. Before Judge Hammond. Richmond superior court. August 17, 1905. The allegations of the petition were substantially as follows; The Augusta Brewing Company is a Georgia corporation engaged in the manufacture of certain drinks, among them soda-water,' which it sold as a refreshing and harmless drink.

<p>1. The courts will take judicial notice of a charter granted to a railroad company.by the secretary of State under the general law providing for the incorporation of such companies.</p> <p>2. A railroad company incorporated under the general railroad law may institute condemnation proceedings to acquire the property of another railroad company, if the property sought to be condemned is not in actual use for railroad purposes by the company owning the property, and is not necessary to the present needs of such company. Property acquired and held' by a railroad company in anticipation of future needs, and not used and not shown to be needed for present use by such railroad company, stands upon the same footing as ordinary private property, so far as the right of another railroad company to condemn it for railroad purposes is concerned. .</p> <p>3. When in a proceeding by one railroad company to condemn the property of another railroad company it appears that the property sought to be . condemned is not actually used by the railroad company which otos it for railroad purposes and is not presently needed for such purposes, the right of condemnation will not be defeated merely because it appears that at some time in the future such property will be needed by such railroad company for railroad purposes. In such a case the future needs of the first company must yield to the present lawful needs of the second company.</p> <p>4. No sufficient reason appears for reversing the judgment refusing to grant the injunction.</p>

Action for damages. Before Judge Reynolds. City court of Wayeross. September 19, 1904.

<p>An indictment for trespass, under the Penal Code, §220, charging that the accused did enter upon the lands of A, after being personally prohibited so to do by the said A, the person entitled to the possession of the land, for the time being, is not supported by evidence that the accused tres» passed upon the lands of'B, that A had no title or estate in the land,, and that he was in possession merely in a representative capacity as. agent or manager for B.</p>

<p>Accusation of cheating and swindling. Before Judge Crosland. City court of Albany. August 16, 1905.</p>

<p>Indictment for simple larceny. Before Judge Foute. City court of Cartersville. August 11, 1905.</p> <p>The accused, Pearce Singleton, was tried in the city court of Oartersville on an indictment charging him with the offense of simple larceny. The property alleged to have been stolen was “two bushels of coal of the value of thirty cents, the property of the Seaboard Air-Line Eailroad Company.” There was much evidence for and against the defendant. His mother and father testified as to the time of his birth, and their testimony, if taken as true, would have established the fact that he was not ten years old at the time of the alleged unlawful act. But there was evidence from which the jury might have inferred that the prisoner was between ten and fourteen years of age. The defendant was convicted, and he made a motion for a new trial based upon the general grounds and also upon the further grounds:</p> <p>“4th. Because said verdict was rendered in the face of and in ■defiance of section 34 of the Criminal Code of Georgia, the uncon-iradicted [evidence] of the father and mother of said defendant being that said defendant was not ten years of age at the time said alleged offense was committed by him as movant alleges.</p> <p>“5th. Because movant alleges that it was error in the court not to have directed a verdict finding said defendant not guilty, as soon •as it appeared from the evidence that the defendant was under the age of ten years at the time it was alleged that he committed said ■offense.</p> <p>“6th. Because it was manifest error in the court to submit the issue of the guilt or innocence of the defendant to the jury when it .appeared from the uncontradicted evidence of the father and mother of said defendant that he was under ten years of age at the time it was alleged that he committed said offense, as movant alleges; and movant alleges that the action of the court in submitting the •question of the guilt of said defendant to said jury was in violation •of and disregard of section 34 of the Criminal Code of Georgia under the instructions as given by the court.</p> <p>“7th. Because the court erred in refusing to give in charge to said jury the following written request of defendant, without qualification, to wit: ‘If you believe from the evidence the defendant was under the [ten?] years of age at the time he was charged with having committed said offense, then I charge you that he was incapable •of committing any crime, and you should find him not guilty.’</p> <p>“8th. Because 'movant alleges that the court,' after reading to .the jury as a part of its charge section 34 of the Criminal Code of Georgia and charging as follows, to wit: ‘In connection with that, gentlemen, I charge yon that if you believe from the evidence that this defendant was under the age of ten years when the alleged? crime was committed, then you would not be authorized to convict/' erred in adding the following language, to wit: ‘But you will' consider in connection with this all the evidence, the interest of' the principal witnesses for the defendant, the appearance of the-defendant, and all the circumstances incident to the ease. The main question for your determination is this: Under the evidence was this defendant ten years old at the time of the commission of the alleged crime? If he was, and you believe from the evidence that he is guilty as charged in this bill of indictment, you ought to find him guilty.’ Movant alleges that the part of said charge herein excepted to is not the law of Georgia, and it was, hurtful error for the court to give such a charge to the jury.. Movant alleges the reference by the court to the principal witnesses-for defendant was calculated to discredit said witnesses before the jury, whom movant alleges were his father and mother,, and did have that effect, and was therefore error. Movant further-alleges that said charge herein excepted to is and was error in the-instructing said jury, ‘if they believed the defendant was ten years: old, and you believe, from the evidence, that he is guilty as charged in the bill of indictment, you ought to find him guilty.’ Movant alleges that said charge last quoted is not the law of Georgia, and it was therefore error to give it as it was given, even if said defendant had been proven to be ten years old and under fourteen years of age. Movant alleges that it is not’ true that every person whose acts would amount to a crime, that is fourteen years of age, is a crime when committed by a person between the ages of ten and fourteen years; movant alleges that children between the ages of ten and fourteen years must be shown by the evidence for the State to possess sufficient intelligence to know good from evil before "they can be convicted of any crime charged against them.”</p> <p>The court overruled the motion, and the defendant excepted.</p>

<p>Indictment for employing another’s servant. Before Judge Wright. Floyd superior court. September 27, 1905.</p>

<p>1. Where it appeared from the evidence that the defendant sold on the Sabbath day articles of refreshment, such as candy and “coca cola,” at a “ stand,” and it further appeared that several times on Sunday at different churches he had conducted a similar business, the jury trying the ease would be authorized to find the defendant guilty of a violation of the Penal Code, §422.</p> <p>2. “Defects in an indictment afford no ground for a new trial. Exceptions which go merely to the form should be made before trial. For matters affecting the real merits, the remedy, after trial, is by motion in arrest of judgment.”</p>

<p>Indictment for malicious mischief. Before Judge Hodnett. City court of Carrollton. September 16, 1905.</p>

<p>There was no error in the admission of testimony, and the evidence warranted the verdict.</p>

<p>Certiorari. Before Judge Parker. Tattnall superior court. April 13, 1905.</p>

<p>Complaint for land. Before Judge Holden. Jefferson superior court. May 10, 1905.</p>

<p>Complaint. Before Judge Holden. Jefferson superior court. July 4, 1905.</p> <p>Avera brought suit against Pennington upon a promissory note. The defendant filed a plea alleging, that the plaintiff by a written-contract sold to the defendant all the timber upon three hundred acres of land, the consideration being that defendant was to pay $1,800 and saw for plaintiff 10,000 feet of lumber; $1,200 has been paid, and the 10,000 feet of lumber delivered; the defendant under his contract had twelve months within which to remove the timber purchased; after cutting the trees the plaintiff had prevented him from removing the tops and limbs, which the defendant had sold for firewood at twenty cents per cord, there being 5,000 cords; and in view of the foregoing the defendant claims, as damages by way of recoupment against the plaintiff, $1,000 for 5,000 cords of wood at twenty cents per cord. The'contract attached as an exhibit to the defendant’s answer contained the stipulations set forth in the first headnote.</p> <p>■ The jury returned a verdict for the plaintiff, disregarding the plea of recoupment. A motion for a new trial upon the general grounds was made by the defendant, and amended by the addition of the following ground: Because the court rejected parol evidence offered by the defendant, tending to show that at the time of the execution of the contract the plaintiff and defendant agreed that the defendant had the right to all the tops, limbs, and trees unfit for timber within the dimensions specified, and defendant could use the same as he saw fit; that the defendant sold this wood at twenty cents per cord, there being 5,000 cords, within the time named in the contract, and it would have been removed from the land within that time; and that the defendant was wrongfully prevented by the plaintiff from delivering the wood. The motion was overruled, and the defendant excepted.</p>

<p>Where one has acquired a prescriptive right to a private way, whether the prescription be of common-law or statutory origin, the right to the way presumably passes with the land to which it is appurtenant; and in an action by one holding the land under a deed from the prescriber, to require the removal of obstacles erected in the way, it is not necessary to allege that the way was laid out by the petitioner, or that the defendant had knowledge that the way was laid out, used, and enjoyed.</p>

Injunction. Before Judge Hammond. Richmond superior court. July 20, 1905.

Equitable petition. Before J. D. Bambo, judge pro hac vice. Early superior court. December 5, 1905.

<p>1. If a necessary party plaintiff to a bill of exceptions was omitted, therefrom, it could be added by amendment at its own instance and that of the plaintiff in error, not changing the record or raising new points, but simply joining the new party in the bill of exceptions already filed by the other.</p> <p>2. Where an auditor filed, as a part of the brief of evidence accompanying his report, a stenographic report of the testimony, it became a part of the record, and it can be specified and brought to this court as such; and the bill of exceptions will not be dismissed because there is no condensed and narrative brief.</p> <p>3. Where the clerk of the superior court certified that when he went into office on January 2, 1905, he found the bill of exceptions filed on December 31, 1904, that it had been impossible to transcribe the record within ten days, and that he forwarded it at once upon completing a copy on January 20, 1905; and where it does not appear that the plaintiff in error or his counsel caused or contributed to the delay or were in any way at fault, a motion to dismiss the bill of exceptions will be overruled.</p> <p>4. Where in an action of an equitable nature exceptions are filed to an auditor’s report, mere general exceptions that such ruling and findings were erroneous under the pleadings and evidence will furnish no ground for reversal.</p> <p>5. Where an equitable petition alleged that the defendant, who was a director and the secretary and treasurer of the petitioning corporation, had been acting for it and was still purporting to do so, and occupied a fiduciary relation to it; that he purchased its property at sheriff’s sale, and took a deed in liis own name; that lie encumbered it with a mortgage to secure a loan, the amount of which was used in paying the purchase-money at the sheriff’s sale, and with another mortgage to certain loan brokers who aided in the transaction; that he was a man of small means and unable to respond in damages; that he had taken possession of all of the plaintiff’s property and had received rents, issues, and profits therefrom; that an accounting was necessary to ascertain what, if anything, should be paid to him, and that until such accounting it was impossible to determine definitely the status; and where the plaintiff offered to do equity and to pay what should be found justly due, if anything, and sought to have the defendant declared to hold the property in trust for it, and that the decree be so molded as to do equity and to return the property to the plaintiff, the petition was not demurrable for want of a tender to the defendant.</p> <p>6. None of the other grounds of the demurrer were well taken.</p> <p>7. If the auditor failed to report with sufficient fullness on any issue, a motion for a re-reference, not an exception to his report, was the proper remedy.</p> <p>8. There was no error in refusing to dismiss the case, in the nature of a nonsuit. ■</p> <p>9. Where a number of letters were admitted in evidence,and an exception was taken' to their admission as a whole, and some of them were admissible, the exception can not be sustained.</p> <p>10. If an agent or person occupying a fiduciary relation towards an owner of property bought it in at sheriff’s sale, took title in his own name, and occupied it in part and in part received rents from it, and upon an equitable proceeding it was determined that the owner was entitled to recover the property and have an accounting for rents, issues, and profits, •the liability of the defendant was not necessarily limited to’ the amount of rents actually collected by him while in possession, but would include what he should have received on that account by proper diligence, that is, the reasonable rental value of the property.</p> <p>11. A director of a corporation, who is also its secretary and treasurer and its agent to procure a loan for it to save its property from sheriff’s sale, occupies a fiduciary relation towards it, and can not acquire interests in the property adverse to the company.</p> <p>12. If a person occupying a fiduciary relation to a corporation, and who was purporting to act for it in procuring a loan to prevent the loss of its property at sheriff’s sale, procured a loan and bought the property in his own name, upon a proceeding by equitable petition to recover the property and have an accounting, brought by the company against him, he was not entitled, in addition to his reasonable expenses in procuring the loan, to be credited also with expenses incurred by him in an effort to effect a reorganization of the company without its knowledge or consent, there being no agreement as to the amount for procuring the loan separately.</p> <p>13. The bringing of an equitable action for the purpose of recovering the property and having an accounting did not operate to ratify the effort to effect a reorganization of the company without its consent.</p> <p>14. Mesne profit or rental value does not ordinarily bear interest, at least until it becomes a liquidated sum.</p> <p>15. The auditor reported how the balance between the parties stood on March 1, 1901, and that the amount due by the defendant since March 1, 1901, should be credited with all sums paid out by the defendant for interest on the $35,000 loan procured by him, at seven per cent, per annum, for taxes, insurance, and caring for the property, said credits to be ascertained by the court on the trial of the case. Held, that this finding contemplated the determination by the court, at the trial, of the balance since March 1, 1901; and this could not be properly done in entering up a decree by merely taking the amount which the auditor had found to be the rental value of the property up to March 1, 1901, charging defendant with the same rate per month, after that date, and allowing no credits, without any further investigation to ascertain the correct balance at the date of the decree.</p> <p>16. Where, in a litigation of the character indicated in the preceding headnote, the defendant claimed credit on account of an amount which he had agreed to pay to certain loan brokers, and an amendment was offered by the plaintiff, charging collusion between the defendant and such brokers, that he had given to them a mortgage on the property involved in the controversy, which included not only legitimate charges but also certain charges which were attacked as unlawful, and praying that the brokers be made parties, they being residents, that full relief be granted with respect to the matter, and that their mortgage be canceled, such amendment was proper and should have been allowed, and the brokers should have been made parties defendant.</p> <p>17.-In determining between the parties whether the defendant should be allowed credit for certain payments made by him, a corporation to whom the payments were made is not a necessary party, and its absence will not furnish ground for demurrer by the defendant.</p> <p>18. In decreeing that possession of the property involved in the controversy should be taken from the defendant and delivered to the plaintiff, there being an outstanding mortgage, the court did not err in the equitable terms which were placed upon the plaintiff, or in requiring it to indemnify the defendant against the mortgage, under the facts of this case.</p> <p>19. In an equitable action it is the province of the judge to determine upon whom costs shall fall; and this determination will not be reversed, unless the discretion of the presiding judge is abused.</p> <p>20. The judgment-of the trial .court is reversed and the case remanded, with directions as to its further progress.</p>

Equitable petition. Before Judge Parker. Coffee superior court. December 1, 1904. The Southern Pine Company of Georgia, a corporation, and J. I. Crawley were the plaintiffs and C. Huxford was the defendant.

Levy and claim. Before Judge Lumpkin. Fulton superior court. October 19, 1904. On December 18, 1865, Timothy Burke conveyed by deed to Mrs, Maria L. Harris a lot in the City of Atlanta, 100 by 275 feet, having a frontage of 100 feet on the east side of what was then known as Collins street. She entered into possession and for years occupied a house erected on the north half of this lot.

Petition for direction. Before Judge Lumpkin. Fulton superior court. January 28, 1905. Carl F. Theilig, a German subject, moved to this country, became naturalized, and changed his name to Charles F. Tyler. In 1903 he died, a citizen of Georgia, leaving a will in which he .sought to dispose of an estate valued at something, more than $50,000. His wife, Maggie Tyler, was made executrix of the will.

Indictment for murder. Before Judge Rawlings. Washington •■superior court. July 31, 1905. The plaintiff in error, Fed Smith, was indicted for murder, the indictment charging him with shooting one Pete Street. When the case was called for trial, the solicitor-general announced that he had ascertained that the name of the person killed was Pete Threat, and proposed to nolle pros, the indictment and draw another charging the accused with the murder of Pete Threat.

<p>An accusation which, charges in the alternative that on a certain day the person accused did “unlawfully play and bet for money or other thing of value, at a game of skin or other game played with cards,” is bad as against a special demurrer.</p>

Accusation of cheating and swindling. Before Judge Carter. City court of Baxley. September 1, 1905. Lawrence McCoy was convicted, in the city court of Baxley, of being a common cheat and swindler, under an accusation based upon the act of the General Assembly of August 15, 1903 (Acts 1903, p. 90). His motion for a new trial being overruled, he excepted.

<p>Complaint. Before Judge Taliaferro. City court of Sanders-ville. April 11, 1905.</p>

Action for damages. Before Judge Taliaferro. City court of Sandersville. Aprü 5, 1905. Mamie Bell Stewart, a child eight years old, was hurt by a falling post of the Southern Bell Telephone and Telegraph Company.

<p>Foreclosure of laborer’s lien. Before Judge Frank Mitchell. City court of Sandersville. June 5, 1905.</p> <p>Bettie Lewis brought an action against Henry Owens, to foreclose a laborer’s special lien for labor performed. It appeared upon the trial that the plaintiff had contracted with the defendant to work a one-horse farm “on halves.” Hnder the terms of the contract Owens was to furnish the land, a mule and his feed, and all necessary farming implements, while it was incumbent upon the plaintiff to furnish all labor necessary to make and gather the crop. The undisputed evidence was that the plaintiff furnished the labor and made the crop, and had almost harvested it when she was stopped by the sheriff under foreclosure proceedings brought by the owner of the land against Owens, it appearing that Owens rented the land. from another. When the landlord foreclosed the plaintiff brought the present action. It further appears that after the foreclosure by the sheriff he hired the plaintiff to gather -that portion of the crop still remaining in the fields, but has paid her - nothing for that service. Moreover the sheriff seized the crop which- had been gathered by the plaintiff before the levy was made, as well as that which was gathered by him, and sold it all at auction. At the con- » elusion of the evidence the plaintiff announced closed; whereupon the defendant moved the court .to dismiss- the case on the ground that the contract of labor had not-been completed at the time the plaintiff sought to foreclose her lien. The motion was sustained and the case dismissed, to which-ruling the plaintiff excepted.</p>

Distress warrant. Before Judge Rawliugs. Bulloch superior court. June 20, 1905. R. B. Waters sued out a distress warrant against C: W.. Hodges, claiming the sum of $100 as rent for the described-premises. A counter-affidavit was interposed; and the ease, coming on for trial in the superior court on appeal, resulted in a verdict for the plaintiff for the amount claimed.

Injunction. Before Judge Rawlings. Screven superior court. July 14, 1905.

<p>1. The Medical College of Georgia is a public eleemosynary corporation, and neither by its charter nor by-laws adopted under authority of its charter is a member of the faculty of that institution, or the dean thereof, such an officer or agent of the corporation as is contemplated in the Civil Code, §§1899-1900, providing for service of suits against a corporation by serving one of its officers or agents.</p> <p>2. The clerk of the city court of Richmond county has no power, without some direct and express order of the court, to issue more than one process in a suit against a single defendant.</p> <p>3. As the defendant had not been legally served, the court was without jurisdiction to pass'upon a demurrer filed by ’the defendant under protest that it was not legally before the court.</p>

Action for damages. Before Judge Hammond. Columbia superior court. March 23, 1905. The petition of Mrs. A. E. Amaker made the following allegations. The Georgia Railroad and Banking Company is a domestic corporation, owning a line of railway in Columbia county, Georgia, which is operated by its lessees, the Louisville and Nashville Railway Company and the Atlantic Coast Line Railroad Company, under the name of the Georgia Railroad Company.

Equitable petition. Before Judge Hammond. Burke superior court. March 25, 1905.

Action for damages. Before Judge Hammond. Columbia superior court. April 17, 1905. The suit was on account of injury sustained by the plaintiff from fire thrown from a locomotive, whereby his trees and fqnce were burned. The verdict was in his favor for $110, and the defendant excepted to the refusal of a new trial.

<p>Certiorari. ' Before Judge Hammond. Richmond superior court. April 22, 1905.</p> <p>Smith sued Baird-in a justice’s court, for rent. Baird acknowledged indebtedness, with the exception of one month’s rent, as to whichxhe denied liability. The evidence was that he and his mother and sister occupied the house of plaintiff. Baird testified that he vacated the premises on February 29, leaving the house in the possession of his mother and sister to whom he had previously sublet a part of the house, and that he notified his landlord of his action in the matter by a letter written March 2, which he sent in regular course of mail. Smith testified, by interrogatories, that he received the letter on March 3, but that he looked to the defendant to pay the rent for March; that the defendant’s mother offered to pay a part of the rent for March, but he would not accept it, telling her to forward it to her son to whom he looked for the payment of the rent. Upon judgment being rendered against the defendant, he carried the case by writ of certiorari to the superior court. In his answer to the writ the justice set forth substantially the same evidence contained in the petition for certiorari, omitting only to state that the defendant testified that he had told his mother and sister that they would have to make arrangements with Smith in regard to their remaining in the house longer than February 29, on which day he intended giving up the premises, and that he “admitted that he was due Mr. Smith rent for three months, one month in 1902, and January and February, 1904, at $9.00 per month, amounting to $27.00.” Before the calling of the case the defendant objected to the answer of the magistrate, for the reason that' it failed to fully set out his testimony, which objection the court overruled on the 1 ground that it should havp been filed at the first term of the court, being in the nature of a traverse pro tanto. One of the grounds for certiorari urged in the court below was that on'the trial of the ease in the justice’s court the magistrate admitted, over the defendant’s objection, interrogatories of the plaintiff, the answers to which recited that they were to be used in the justice’s court for the 120th district, G. M., of Dooly county, whereas the case was pending in the justice court of the 120th district, G. M., of Bichmond county. After hearing the certiorari the same was overruled, and the defendant excepted.</p>

<p>Injunction. Before Judge Hammond. Richmond superior ■court. June 24, 1905.</p> <p>Clark & Company filed a petition for injunction against the City •Council of Augusta and the sheriff of the city, containing substantially the following allegations: On December 22, 1904, the City Council of Augusta adopted an ordinance, levying taxes for the support of the government of the city for the year 1905, and in the ■ordinance a 'license or business tax of $350 was imposed upon a certain class of persons, to which plaintiffs .belonged, such class being "described in the ordinance as follows:</p> <p>“Money lender. A money lender as contemplated by this ordinance is one who carries on the business of lending his own or other people’s money, and not as a stpck and bond broker, pawnbroker, ■chartered bank, negotiator of loans on1 realty, real estate agent or firm of such agents, or dealers in bonds and stocks-as herein provided; but who carries'on the business of'lending money on personal •security or personal property, other than stocks and bonds, shall also be. deemed a money lender — $350.00. Provided this license is issued by the city and accepted by the lieensee' with distinct understanding and agreement that whenever the licensee in the conduct ■of his business shall violate the usury laws of Georgia, this license •shall be thereby forfeited, and from the date of such violation it shall not be lawful for such licensee to do further business under “this license, and must file a bond in conformity with State law.</p> <p>“Money lender, agent or agency for collection of claims, or carrying on business in the city, whether office located in the city or not, subject to foregoing provisions: — $350.00.”</p> <p>It is alleged that that portion of the. ordinance just quoted is void, first, because it discriminates against, money lenders of the •class to which plaintiffs belong, in favor of negotiators of loans on realty, who are really money lenders under another name, the license upon the latter being only $50, and that this discrimination is in violation of that provision of the constitution of the State which declares that all taxes shall be uniform up.on the same class of citizens; second, the ordinance provides that the license shall be forfeited when one holding the same shall violate the usury laws of the State, the provision for forfeiture being void for the reason that the State statutes on the subject of usury are exhaustive in reference to penalties and forfeitures; third, the ordinance requires the applicant for the license to file a bond in conformity with the State law, and the State law referred to, being the act of August 15, 1904 (Acts 1904, p. 79), is violative of the constitution of the State of Georgia, the provisions which it violates being those which declare that protection to person and property is the paramount duty of the government, and that no person shall be deprived of life, liberty, or property without due process of law; and that citizens of the United States residents of this State shall be declared citizens of this State, and it shall be the duty of the General Assembly to pass such laws as will protect them in the full enjoyment of their rights, privileges, and-immunities of citizenship; and that laws of a general nature shall have uniform operation throughout the State, and no special law shall be passed in any case for which provision has been made by general law; and that the right of the people to be secure in their houses and persons against unreasonable searches and seizures shall not be violated, and'that the act also violates that provision of the fourteenth amendment of the constitution of the United States which declares that no State shall deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. It is alleged that the City Council of Augusta and the city,sheriff, attempting to enforce the provisions of the State law and the ordinance against plaintiffs, have caused execution to be issued which has been levied upon the property of the plaintiffs; and that the sheriff will proceed to sell the same unless steps are taken to stop the sale. It is alleged that the plaintiffs were engaged in the business of lending money in the City of Augusta when the ordinance was passed. The prayers-of the petition are, for injunction to restrain defendants from proceeding further with the execution, for general relief, and for process. To this petition the defendants filed a demurrer and an ¿nswer. The answer admitted the allegations so-far as they related to the existence of the ordinance, but denied that the ordinance was in any way in violation of either tlm e'onstitution of Georgia or the constitution of the United States. It was alleged in the-answer that the plaintiffs had not paid the license in accordance with the ordinance, and that they had never in any way complied with the statute referred to, and that they had never filed the bond required by the ordinance nor in any way complied with the statute referred to in the petition. It was alleged that plaintiffs were engaged in a gross violation of the usury laws of the State, the percentage which they charged being four and five hundred per cent, per year. The case was heard by the judge on the petition, demurrer, and answer; and an injunction was granted as prayed for in the petition. To this ruling the defendants excepted.</p> <p>The ordinance also levied a tax on the persons engaged in the following businesses: Banks (excepting such as are exempt by law) capital stock not exceeding $100,000, $50, exceeding $100,000 paid capital, $100; stock and bond broker, $75; negotiator of loans on realty only, .$50; pawnbroker, $350; real estate agent, .$25; private banks, $350.</p> <p>cited Ga. B. 42/596; 50/530; 53/414; 60/599; 69/583; 9.7/114; 114/426, 462; 109/80; 87/120; 43/421; 18/586; 45 S. E. 122; 112 Cal. 412; 113 TJ. S. 30, 187; 177 IT. S. 187; 180 Pa. St. 47; 77 Am. St. B. 681; 21 Am. & Eng. Ene. L. 784 et seq.; 2 Cool. Tax. 1126-7, 1147-9".</p> <p>License for regulation, and for revenue: 50 Ga. 537; Cool. Tax. 1136. Strict construction: 21 Am. & Eng. Ene. L. 783. Unreasonable classification: 21 A. & E. 803 et seq.; 75 Fed. 983; 77 Am. St. E. 765; 55 N. E. 627; 24 Am. St. E. 137; 82 N. W. 760; 38 L. E. A. 677; Ga. B. 42/600; 49/195; 50/530; 52/269; 53/414; 60/599;'69/583; 84/686; 89/642; 109/78; 120/192; 121/723. Ordinance void as unreasonable and prohibitory: 21 A. & E. Enc. 738, 778-80; 72 Am. Dec. 89; 52 Am. St. E. 301; 48 Am. St. E. 227; 2 L. E. A. 792; 28 Am. E. 642; 13 Am. St. E. 468; Cool. Tax. 15, 1102; 13 Fed. 233; 39 Nans. 324; 102 Cal. 159; 68 Ill. 372; 111 U. S. 762; 18 S. E. 345; 59 Md. 330, 30 L. E. A. 32; 27 N. W. 647; 87 N. W. 739; 18 Ga. 589; 90 Ga. 500; 30 L. E. A. 432. Eevoeation of license: 87 Ga. 123; 89 Ga. 625; 11.6 Ga. 547; 50 Ga. 387; McQuil. Mun. Ord. 170. Penalty for usury: Ga. B. 36/460; 54/645; 69/505; 78/683; 9 L. E. A. 69; Cool. Tax. 1099; McQuil. Mun. Ord. §295; 21 A. & E. Ene. 785, 993-5. Act of 1904 invalid: Civil Code, §§5722, 5732, 5699, 5700, 5713 ; Ga. R. 111/162; 118/58; 115/453; 120/928 ; 107/622; 112/765; 8 Cyc. 872; 50 L. R. A. 413.</p>

Equitable petition. Before Judge Hammond. Bichmond superior court. July 21, 1905. The Augusta Naval Stores Company, a partnership composed of Hogan and Heath, filed an equitable petition against D. J. Forlaw, Frank D. Christie, the Woodward Lumber Company, and the Ellis-Young Company, alleging in substance as follows: The petitioners formed a partnership for the purpose of conducting a .turpentine business.

Complaint for land. Before Judge Hammond. Burke superior court. July 28, 1905. On the 17th day of March, 1903, Mrs. M. J. Walker brought a complaint for land against Mrs. M. J. Wadley as administratrix of the estate of W. M. Wadley, and Daniel Sons & Palmer, J. F. Carter,., and William Warnoek.

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. June 14, 1905.</p>

<p>Application for alimony. Before Judge Pendleton. Fulton superior court. June 23, 1905.</p> <p>George W. Bishop filed a libel for divorce against his wife, on the ground of adultery. She denied the plaintiff’s charge and filed a cross-libel against him. She applied for temporary alimony pending the action, which was allowed to her, and which the husband contends that he paid. On the trial the jury found that neither the plaintiff nor the defendant should be' granted a divorce. Subsequently the, husband filed a second libel for divorce against his wife, alleging desertion of him by her. The defendant denied the plaintiff’s allegation, and made application for temporary alimony and an allowance for counsel fees pending this suit. The plaintiff contested her right to alimony, on the ground that she had been living a life of immorality and shame since their separation. He also pleaded that the allowance of temporary alimony during the former litigation, and the verdict of the jury denying a divorce to either party, amounted to an adjudication which barred her claim for temporary alimony during the present suit; and he filed a plea of res adjudicata accordingly. On the hearing of the application for temporary alimony the presiding judge ordered the plaintiff to pay to the defendant $50 as counsel fees, and $10 per month as temporary alimony. To this ruling he excepted.</p>

<p>Indictment for assault with intent to murder. Before Judge Littlejohn. Stewart superior court. May 24, 1905.</p>

Petition for injunction. Before Judge Fulton. Houston superior court. May 31, 1905.

<p>Action for damages. Before Judge Irwin. City court of Polk county. November 5, 1904.</p>

<p>1. A common carrier can' not limit Ms legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. By special contract he may relieve himself of his common-law liability as an insurer, and may contract against liability arising from certain losses which do not involve negligence of the carrier or his servants; but he can not, even by special contract, exempt himself from liability for loss of goods intrusted to him, where the loss arises from his negligence or that of his servants.</p> <p>2. A common carrier of goods which transports live stock is as to the latter property also a common carrier. There are, however, certain inherent differences between live stock and inanimate property offered for transportation.</p> <p>3. A carrier of live stock may by special contract so limit its liability for loss or damage that it will be liable only in the event that it is guilty of gross negligence.</p> <p>4. A railway company in its capacity as a common carrier may, as a basis for fixing its charges and limiting the amount of its corresponding liability, lawfully make with a shipper a contract of affreightment embracing an actual and bona fide agreement as to the value of the property to be transported; and in such ease the latter, when loss, damage, or destruction occurs, will be bound by the agreed valuation. But a mere general limitation as to value, expressed in a bill of lading, and amounting to no more than an ai’bitrary preadjustment of the measure of damages, will not, though the shipper assent in writing to the terms of the document, serve to exempt a negligent carrier from liability for the true value.</p> <p>5. Where there is an issue of fact as to whether there was an actual bona fide valuation or a mere arbitrary effort to limit liability, the question is one for the jury; but where the written contract shows that it falls within the latter description, and there is no issue of fact on that subject, it is proper for the court to construe the. contract.</p> <p>6. The evidence in this case was not sufficient to show the perpetration of any fraud by the shipper on the company.</p> <p>7. Where the common-law rule applies, under which no excuse avails a common carrier in cases of loss unless it was occasioned by the act of God or the public enemies of the State, if a locomotive engineer desired to leave his train and proceed with the engine some distance to a water-tank for the purpose of obtaining water, and thereupon caused the flagman to uncouple the engine from the cars, which were left standing on the track while the engineer, in company with the conductor (who had authority to control him) and the fireman, proceeded on the engine to the water-tank, obtained the water, and returned to where the ears were, but the engineer caused the engine to run at such a rate of speed as to be evidently dangerous and to result in wrecking one of the cars and causing the loss of property being transported, even if he were insane at the time, the loss could not be attributed to the act of God within the meaning of the rule of law referred to, so as to excuse the carrier.</p> <p>8. The meaning of “the act of God” falling within the rule discussed.</p> <p>9. In this State it is the general rule, that, in order to avail himself of the act of God as an excuse, the burden is upon the common carrier to establish not only that the act of God ultimately occasioned the loss, but that his own negligence did not contribute thereto.</p> <p>10. Where, under a special contract for the shipment of live stock, the common-law liability of the common carrier was so modified that the carrier was liable for injuries arising only from fraud or gross negligence, it was admissible to defend by pleading and proving that its engineer upon the train on which the goods were shipped suddenly became insane at the time of the transaction complained of; and it would be for the jury to say whether the carrier did not know, or could not by the exercise of proper care have known of it, and whether it exercised due diligence in view of the situation and circumstances disclosed by the evidence.</p> <p>11. Where an action was brought against a railroad company for loss alleged to have arisen from negligence, and the defendant in its answer denied -the negligence, and some two years thereafter, pending the trial of the case, amended its pleadings by setting up that the engineer in charge of its engine became suddenly insane at the time of the transaction complained of, and that it was thereby relieved from liability, counsel for the plaintiff could legitimately comment upon the time when this amendment was made and this defense set up.</p> <p>12. Where a suit is brought for damages arising from the destruction of property, and there is a basis of calculation as to the value, interest is not recoverable eo nomine. But the jury may consider the length of time damages have been withheld, the character of the tort, the conduct of the defendant, and all the circumstances of the transaction, and may ' in their discretion increase the amount of damages by adding to the value of the property destroyed a sum equal to the interest on such value, the entire sum found being returned as damages, and not exceeding the amount sued for.</p>

Action for breach of contract. Before Judge Beid. City court of Atlanta. November 16, 1904. The Hess Spring and Axle Company brought suit against the Atlanta Buggy Company. The declaration contained three counts, but one of them was stricken oil demurrer. Of the others, one was based on each of two contracts. They were similar in character, except that one applied to vehicle axles, the other to vehicle springs.' The first began thus: “Contract for axles.

<p>1. It is competent to prove, on a subsequent trial, the statement oí the prisoner at a coroner’s inquest, by the testimony of witnesses who profess to remember the substance of such statement; and it is not error for the court to overrule an objection to such testimony, urged on the ground that “the law requires the evidence before the coroner’s jury to be in writing, and the writing would be better evidence of what the witness said.”</p> <p>2. An objection to the admission of the same evidence on the ground that “the defendant was in the custody of the officers under arrest, and while thus situated was compelled to give testimony against herself; and it was unlawful to require her to make any statement tending to incriminate herself, and therefore such statement would be inadmissible,” is equally without merit where the record does not disclose any evidence either of compulsion or that the statement proved by such testimony was not freely and voluntarily made.</p> <p>3. The evidence set out in the second ground of the amended motion for new trial, being irrelevant, was properly excluded by the court.</p> <p>4. When on the trial of one charged with murder the accused admits the homicide but at the same time states. circumstances of justification or alleviation, and the only testimony of witnesses which proves the homicide also discloses circumstances of mitigation or justification, it is error for the court to charge, without qualification, “When a homicide, however, is proven, the burden is on the slayer to justify or mitigate the crime or the offense.”</p> <p>5. While the charge that “When a homicide is proven, the law presumes malice, and unless the evidence relieves the slayer, he or she should be convicted,” is less objectionable, it does not aptly state the law in cases where (whether the admission of the defendant be considered or the evidence of witnesses) there is no proof of the homicide save such as carries in immediate connection with it circumstances which, if believed to be true by the jury, would amount to a palliation or justification of the act.</p> <p>6. Although a defendant’s character is not put in issue, still, where the evidence discloses facts which tend to show that the defendant is a woman of immoral life, it is not hurtful to her for the court to charge that “a woman or person of bad character 'lias the right to defend [herself] upon the same principles as people of good character.”</p> <p>7. As there were facts and circumstances in evidence which would have . warranted the jury to find that at the time of the homicide the deceased was attempting to commit a serious personal injury upon the accused, it was not error for the court to give in charge to the jury the law of voluntary manslaughter.</p> <p>S. Before the refusal of a written request to charge the jury will be held to constitute error, it must appear that the request was in itself a correct statement of the law and applicable to the case.</p>

Equitable petition. Before Judge Rawlings. Bulloch superior court. April 25, 1905. This case comes up on exceptions to the ruling of the court below sustaining a demurrer to the plaintiff’s petition.

<p>Complaint. Before ■ Judge Holden. Jefferson superior court. May 9, 1905.</p> <p>Lizzie 0. Lancaster brought suit against the town of Wadley, alleging as follows: On June 18, 1896, the defendant, acting through its intendant and aldermen, in pursuance of a resolution unanimously passed at a public mass meeting of citizens held for that purpose, purchased from Armstrong & Co., agents for a company dealing in apparatus for extinguishing fires, a quantity of such apparatus for the total sum of $1,200. Of the purchase price $200 was paid in cash, and five notes for $200 each, payable annually, were given. All the notes were paid except the last. Being payable to order, the note was negotiable, and the plaintiff purchased it for value in open market before due. The defendant is still in possession of the fire apparatus and making use thereof, and has never tendered it back either to the plaintiff or to the seller, .but refuses to pay the last note. The prayer was that a receiver or commissioner be appointed to take charge of the property and make sale thereof, or of so much as might be necessary to pay the amount of the note, that a general judgment be rendered against the defendant for the amount due on such note, principal, interest, attorney’s fees, and cost, to be first paid out of the proceeds of the sale of the apparatus; and if the proceeds should not be sufficient, then out of any other property of the defendant subject to levy and sale. The copy note set out in the petition began, “On the first •day of November 1901, we promise to pay,” etc. It contained no reference'to the town of Wadley, but was an ordinary promise to pay the sum of $200, with seven per cent, interest payable semiannually, and with a provision for attorney’s fees if collected by an attorney after maturity. It was signed, “G. S. Johnson, Mayor,” and had on it the statement “Attested by A. Chance, Clerk of Council, Wadley, Ga.” Indorsed on it was the name “J. A. Spier, Chairman Finance Committee, of town of Wadley, Gil.” Under this was the indorsement of the payees. The defendant demurred to the petition. The demurrer was overruled, and it excepted.</p>

Action for damages. Before Judge Kawlings. Tattnall superior court. July 28, 1905. This was an action to recover damages for unlawfully and wrongfully expelling the plaintiff from the defendant’s cars, on which he was riding as a passenger, and for ejecting him with unnecessary force and causing him to be arrested for an offense alWgéd to have been committed on the cars. The jury found a verdict for five hundred dollars damages.

Affidavit of illegality. Before Judge Rawlings. Tattnall superior court. June 28', 1905. A suit was brought by Sarah Screws against J. 0. Anderson, and a -judgment was recovered for $236.42 principal, and $203.71 interest to October 4, 1900. A levy was made on certain property, and the defendant interposed an affidavit of illegality, alleging that he had paid off and discharged the fi. fa. except the cost, which he tendered.

<p>1. A declaration must aver a time when every material, traversable fact alleged in it transpired. If it fails to do so, it is subject to special demurrer on that ground.</p> <p>2. Although a suit for the creation of a nuisance may be barred by the statute of limitations, yet if the nuisance be of a continuing character which can and should be abated, suit may be brought for damages arising from its maintenance.</p> <p>3. Where a declaration alleged that a municipal corporation built through the lot of the plaintiff a sewer which was constructed to carry off: waste water, but which was used also for the carrying of filth, sewage, and fecal matter, and that, by reason of the existence of the sewer on his property and the maintenance of a “dumping station” or place for the discharge of such sewage near his residence, he has been damaged, on special demurrer he should have been required to allege when the sewer was constructed and for what length of time the nuisance had been maintained during his ownership of the property, causing the damage sued for.</p> <p>4. Where an action for damages is brought against a municipal corporation, the declaration must allege a substantial compliance with the act of 1899, which requires persons having claims for money damages against a city to present the same for adjustment before bringing suit, but it is not necessary to annex to the declaration an exact copy of such written demand. ’</p> <p>5. The demurrer in this case does not raise the question of the sufficiency of the demand made, but is based on the 'ground that a copy of the demand is not annexed to the petition, and that the defendant therefore can not state whether the petition and the demand correspond.</p> <p>6. Where a declaration alleged that the market value of a lot belonging to the plaintiff: had depreciated in the sum of $3,500 by reason of a nuisance created and maintained by the defendant, such an allegation was subject to special demurrer on the ground that it did not state what was the value of the lot before the injury.</p>

<p>A New Jersey corporation with its principal office in Missouri had also a place of business in Richmond county, Georgia, in the charge of an agent of limited authority. The goods used in the business were shipped to Augusta from the Missouri headquarters, and were then sold, either in broken or unbroken packages. Some of the sales were on credit, and to parties living both in Georgia and South Carolina, the notes taken in the course of the business being forwarded to the principal office and paid either there or through the Augusta agency; and when the notes and accounts were collected in Augusta the amounts realized were sent immediately to the principal office. Held, that these notes and accounts were subject to State and county taxation in Richmond county.</p>

Equitable petition. Before Austin Branch, judge pro hac vice, Richmond superior court. February 7, 1905. P. Ii.

Certiorari. Before Judge Hammond. Kichmond superior court. June 17, 1905. Antonio Fontana made-application, on June 12, 1903, to have an exemption set apart to Mm under the constitution of 1877, as the head of a family consisting of himself, his wife, and minor children.

<p>Certiorari. Before Judge Hammond. Richmond superior court. July 29, 1905.</p> <p>Susie Hardiman sued the American Assurance Association of Atlanta, Georgia, in a justice’s court of Richmond county, for fifty dollars, on a life-insurance certificate issued by the association to C. M. Hardiman, in which she was named as the beneficiary. The case was appealed to a jury in the justice’s court, and a verdict was rendered therein for the plaintiff for fifty dollars, which, upon review by the judge of the superior court on certiorari, was sustained, and the association excepted. On the jury trial it was admitted that the insured died on December 31, 1904; and the plaintiff put in evidence the certificate, which bound the association to pay her fifty dollars upon the death of the insured. The weekly premium on the certificate was fifteen cents. The policy contained the following stipulations: “Premiums must be paid on or before Monday of each week to the Association at its office during office hours, or to its authorized representative on demand.” “When premiums for three weeks are due and unpaid, all benefits under this policy cease; but the policy may be r'estored by the payment, during the third week, of all arrearages and premiums for the next two following weeks, provided that the insured is at that time in good health and has not suffered disease or injury during the arrearage period.” “Non-observance of any of the written conditions or requirements of this policy, . . without the written endorsement of approval of the Association through its President or Secretary, voids and immediately terminates the policy, and all payments thereon become forfeited to the Association.” “Agents are not allowed to alter or discharge contracts or waive forfeitures or receive premiums in arrearage beyond the time provided in the conditions and provisions above set forth.” “Keceipt of this policy and payment of the premiums thereon is acceptance in full of the policy terms, conditions, and provisions.” T. J. Tudor testified, in behalf of the defendant, that he was its collecting agent in November and December, 1904; that the last premium paid by the insured was paid November 14, 1904, which was on Monday; that the insured failed to pay the premiums due on Monday, November 21, and on Monday, November 28, 1904; that on December 6, 1904, the witness called on the mother of the insured, the plaintiff in the case, who had been accustomed to pay the premiums, and she refused to pay anything more; that during that week Mr. Franklin, her attorney, came to the witness’s office and tendered him five dollars which witness refused to accept, because the insured was in arrears and in bad health. The witness further testified that the insured did not pay his premiums on Monday of each week, but generally paid twice a month, after the city council paid off, and witness received the premiums after they were past due; that the witness on one occasion called after the premiums for two weeks were due, and accepted payment of them. “Witness’s custom was to wait on the insured until after council had paid off, and not call for the premiums on Mondays. Insured did not come to witness’s office to pay, but witness always called on him or his mother, at the latter’s house, for payment of the premiums.” A physician testified, in behalf of the defendant, that he had professionally attended the insured during November, 1904, and prepared a sick-benefit claim (which the evidence shows was presented to the defendant hy the insured on the 29th of that month); that the insured was sick in bed on November 28, from tuberculosis, and suffered from that disease until he died.</p> <p>The error assigned in the petition for certiorari was, that the verdict was contrary to law and the evidence and without evidence to support it.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. August 31, 1905.</p>

Rule for contempt. Before Judge Kimsey. Hall superior court. June 26, 1905.

Petition for injunction. Before Judge Wright. Floyd superior court.

<p>Petition for injunction. Before Judge Mitchell. Brooks superior court. May 27, 1905.</p> <p>S. S. Rountree, as surviving partner of A. J. Rountree & Son and A. J. Rountree & Company, alleging himself to be an execution creditor of William Jones, seeks to enjoin the commission of waste by the defendant, M. F. Jones, upon land alleged to be owned by the estate of William Jones and included in a homestead which had been set apart to him and which had not terminated. On the hearing for an interlocutory injunction, the court, after considering the evidence, refused to grant an injunction, and the plaintiff assigns such refusal as error in his bill of exceptions. The controlling question is as to the dormancy of the judgments on which the plaintiff’s execution issued. Three executions were tendered in evidence: (1) One in favor of A. J. Rountree & Son against Martha J. Jones and William Jones, issued from the superior court of Brooks county on February 23, 1894, based on a judgment rendered November 7, 1893, with-the following entries thereon: “Entered on General Execution Docket, Feby. 23, 1894. James D. Wade, Jr., clerk.” “No property to be found on which to levy this fi. fa. Feby. 11th, 1901. A. J. Conoly, Shff.” “Received $10.31 from A. J. Rountree & Son, in payment of my cost. Oct. 3, 1895. J. D. Wade, Jr., Clk.” Also, an entry of levy on land lot 494 made by the sheriff on May 2, 1905. (2) An execution in favor of A. J. Eountree & Son against Martha J. Jones and William Jones, issued from the superior court of Brooks county on February 23, 1894, upon a judgment rendered November 7, 1893, with the following entries: “Entered on General Execution Docket, Feby. 23, 1894. J. D. Wade, Jr., clerk.” “No property to be found-on which to levy this fi. fa. A. J. Conoly, Sheriff. Feby. 11th, 1901.” (3) An execution in favor of Rountree & Company against Martha J. Jones and William Jones, issued from the superior court'of Brooks county on June 13, 1891, and based on a judgment rendered May 7, 1891, with the following entries thereon: “Entered on General Execution Docket, June 13th, 1891. J. D. Wade, Jr., clerk.” “Received from defendants the cost on this execution. Oct. 1st, 1894. J. D. Wade, Jr., Clk.” “No property on which to levy this fi. fa. June 4, 1898. A. J. Conoly, Sheriff.” “I have this day levied the within fi. fa. on the north half of- lot of land No. 473 in 12th district of Brooks Co., Ga., containing 204% acres, as the property of Wm. Jones, one of the defendants. Nov. 14-, 1901. A. J. Conoly, Shff.” “We, the jury, find the property not subject. C. W. Dennis, Foreman.” The first-named execution, with the following entry, ivas entered February 11, 1901, on the execution docket of the superior court of Brooks county: “No property to be found on which to levy this fi. fa. Feby. 11,1901. A. J. Conoly, Shff.” The second execution, with the following entry, was, on February 11, 1901, recorded on the execution docket of Brooks superior court: “No property to be found on which to levy this fi. fa. A. J. Conoly, Shff. February 11, 1901.” The third-named execution was, on January 1, 1899, entered on the execution docket of the superior court of Brooks county, with these entries endorsed thereon: “Received of defendants the cost on this execution. Oct. 1st, 1894. J. D. Wade, Jr., Clerk.” “No property on which to levy this fi. fa. June 4th, 1898. A. J. Conoly, Sheriff.”</p>

Injunction. Before Judge Pendleton. Fulton superior court-June 14, 1905. On March 25, 1904, the Georgia Industrial Company borrowed $40,000 from the Provident Savings Life Assurance Society, giving its promissory note for that sum, payable three years after date,, and secured by a loan deed covering a tract of land in Hancock county.

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. June 2, 1905.</p>

Indictment for murder. Before Judge Freeman. Heard superior court. June 19, 1905. The evidence disclosed that on the day of the killing the accused ■quarreled with Stewart, the deceased, and that subsequently Mac Patterson, father of the accused, gave him a pistol and directed him ito kill Stewart.

<p>Certiorari. Before Judge Lewis. Putnam superior court. September 19, 1905.</p>

<p>Certiorari. Before Judge Holden. Hancock superior court. September 28, 1905.</p> <p>Fish was tried before a jury in the county court, and convicted,, under an indictment which charged that the accused, “without provocation, did . . unlawfully use to and of one J. W. Hsry,. and in his presence, the following opprobrious words and abusive language: ‘You swore a lie;5 repeatedly using said language; said words and language then and there tending to cause a breach of the peace,” etc. The accused, in.his statement to the jury, said that he said to J. W. Usry, “You swore to a lie. You swore that I sold you some whisky.” Others testified to the same effect. Usry testified that he did not swear that Fish sold whisky to him. There was evidence that Fish' had been indicted for selling whisky to him, and that he was a witness against Fish before the grand jury. Among the instructions of the court to the jury were the following: “I charge you that the words set out in this indictment, to wit, that ‘You swore to a lie5 (meaning J. W. Usry), are opprobrious words and abusive language, in the meaning of the statute; and in this connection I charge you that if the evidence shows you,' and you believe, that TJsry had sworn that he had ever bought liquor of Fish, and that such swearing was false on the part of TJsry, then the provocation would be justifiable, and Fish, in using the words set out in the indictment, would not be guilty; but if TJsry had not so sworn, then no provocation would exist.” In his petition for cer-tiorari, the overruling of which is assigned as error, the accused excepted to the instructions of the court on this subject.</p>

<p>Indictment for seduction. Before Judge Little. Marion superior court. September 12, 1905.</p>

Indictment for misdemeanor. Before Judge Seabrook. Bryan superior court. August 26, 1905. This case came to this court upon exceptions by Cuffy Houston and Ned Maxwell to the overruling of their motion for a new trial.

<p>Accusation of vagrancy. Before Judge Little. City court of Sparta. September 19, 1905.</p>

<p>Indictment for obstructing road. Before Judge Fite. Catoosa superior court. September 18, 1905.</p>

<p>Indictment for seduction. Before Judge Beagan. Butts superior court. September 7, 1905.</p>

<p>Indictment for murder. Before Judge Mitchell. Berrien superior court. October 12, 1905.</p>

<p>Indictment for arson. Before Judge Wright. Floyd superior court. September 30, 1905.</p>

<p>Indictment for arson. Before Judge Wright'. Floyd superior court. September 28, 1905.</p>

<p>Indictment for rape. Before Judge Wright. Floyd superior court. September 28, 1905.</p>

<p>Indictment for adultery and fornication. Before Judge Talia-ferro. City court of Sandersville. October 2, 1905.</p>

<p>Indictment for adultery and fornication. Before Judge Talia-ferro. City court of Sandersville. October 2, 1905.</p> <p>The motion for a new trial, beside the general grounds, contained two special grounds, one based upon newly discovered evidence, and the other setting forth the following statement of facts: The defense relied upon two witnesses to establish an alibi, and these witnesses were absent when the case was called for trial, but counsel for the accused was assured by another witness that he could swear to the alibi of the accused. Belying upon this witness to establish such fact, the accused went to trial. During the trial this witness informed counsel for accused that he could not testify to the alibi, and the accused was thus prevented from setting up this defense. Attached to this second ground was an affidavit of counsel that the. facts set forth were true, but there was no affidavit from the persons named in the ground that if they had been present they would have testified to an alibi.</p>

<p>1. Where, upon the filing of a motion for a new trial, the judge by order fixes a day certain for the presentation for approval of a brief of the evidence, and no brief is filed within the time fixed by the order, and the motion is subsequently dismissed on that account, such motion is not “legally dead” until the judgment of dismissal; and a bill of exceptions complaining of such judgment and other rulings on the trial of the ease is in time if it is filed within twenty days after the judgment of dismissal, although a longer time has elapsed since the date set by the order for the presentation of the brief of evidence.</p> <p>2. An indictment charging that the accused committed an assault with intent to murder “with certain pieces of. iron in their hands held,” but which fails to describe the manner of the assault or" the character of the pieces of iron, is lacking in the requisite particularity; and an appropriate special demurrer pointing out this defect should be sustained.</p>

<p>Accusation of stabbing. Before Judge Crisp. City court of Americus. October 14, 1905.</p>

Indictment for larceny. Before Judge Crisp. City court of Americus. October 26, 1905. The indictment charged the larceny of certain household goods of Montgomery from his dwelling-house. There was testimony to the effect that the articles mentioned were his property, and were found in the possession of the accused. Montgomery was dead at the time of the trial.

<p>Accusation of misdemeanor. Before Judge Park. City court of Sylvester. October 20, 1905.</p> <p>The accusation charged 'Ed. Presley “with the offense of misdemeanor, that he should be deemed and is a common cheat and swindler, for that the said Ed. Presley, on the 8th day of September, in the year nineteen hundred and five, in the county aforesaid, did then and there unlawfully and with force and arms contract with Cook & Jackson, a firm composed of I. Cook and E. B. Jackson, to perform certain services, to wit, turpentine work including all such work as might be found necessary or to be done in the operation of a turpentine distillery, gathering the- crude gum from the trees and all other such work about a distillery, with the intent to procure, and did thereby procure, the following articles of the value designated, to wit, cash money to the amount of twenty-five dollars and ninety-five cents, of and 'from the said Cook & Jackson, I. Cook and E. B. Jackson as aforesaid, with the intent not to perform the said service contracted for, and did fail to perform the service so contracted for, and did fail to return the articles so advanced, or the amount and value thereof, with interest thereon, at the time said labor was to be performed, without good and sufficient cause, thereby causing the said hirer, Cook & Jackson as aforesaid, loss and damage to the amount and value of the said articles so procured and advanced to him; and did, in the manner aforesaid, cheat and swindle the said Cook & Jackson as aforesaid, to the amount and value aforesaid, contrary to the laws of said State,” etc.</p> <p>The accused demurred to the accusation, on the ground stated in the first headnote, and on other grounds, one of which was that the act of August 15, 1903, on which the accusation was- based, is unconstitutional, for various reasons stated. The demurrer was overruled, and, after conviction, the accused excepted to the overruling of the demurrer and of his motion for a new trial.</p>

<p>Indictment for adultery and fornication. Before Judge Little. City court of Sparta. October 18, 1905.</p>

<p>1. It is not necessary in an indictment under tlie act of 1903 (Acts 1903, p. 90), making it illegal for a person to procure money or other thing of value on a contract to perform services with intent to defraud, to allege that the term of service expired before the indictment was preferred. Proof of a failure to perform the services contracted for, and proof of failure to return the money or other thing of value advanced, even during the term of service provided for in the contract, is sufficient, under the act, to establish prima facie the intent to defraud which .the act punishes.</p> <p>2. Loss or damage to the hirer is an essential ingredient of the offense defined in the act above referred to.</p> <p>3. The evidence disclosing that there was no loss or damage to the hirer, the verdict was unauthorized, and it was error to refuse to grant a new trial.</p>

<p>Indictment for shooting at another. Before Judge Wright. Polk superior court. October 25, 1905.</p> <p>At the trial the accused' made a statement to the jury, in which he said that the shooting was done to save his life, the person at whom he shot having shot' at him with a pistol. No reference to the statement of the accused was made by the court in charging the jury. The accused was convicted, and one of the grounds of his motion for a new trial, tbe overruling of which is assigned as error, was the failure to charge the jury as to his statement.</p>

<p>Accusation of misdemeanor. Before Judge Crisp. City court of Americus. September 26, 1905.</p> <p>Aaron Watson was arraigned on an accusation based on the act of 1903 (Acts of 1903, p. 90). It alleged that the accused, “having contracted with said M. E. Morgan to perform for him certain, services, to wit services as a farm laborer, and to ditch for said!. M. E. Morgan, with intent to procure from him money and other things of value, and not to perform the services so contracted for,, did without good and sufficient cause fail and refuse either to perform said services or to return the money so advanced, to the loss. • and damage of said M. E. Morgan in the sum of $12.75; and after' having so contracted did thereby procure from said M. E. Morgan. $12.75 in cash, of the value of $12.75, with intent then and there-not to perform the services so contracted for,o and did then and. there, without good and sufficient cause, fail and refuse either to perform said services or to return the money so advanced, to the loss and damage of said M. E. Morgan in the sum of $12.75.” After conviction he made a motion in arrest of judgment, on the-ground, among others, that the warrant and accusation failed to-allege any time when the service was to commence, what length of' time it was to continue, or that the prosecutor at the time contracted and agreed to pay any amount whatever for such service-so to be rendered. He excepted to the overruling of this motion,, and also to the overruling of his motion for a new trial.</p>

<p>Indictment for assault with intent to murder. Before Judge. Martin. Wilcox superior court. October 7, 1905.</p>

<p>Indictment for seduction — conviction of fornication. Before Judge Holden. Madison superior court. October 21, 1905.</p>

Complaint. Before Judge Roan. DeKalb superior court. January 21, 1905. John E. Stevens, as executor of the estate of Mrs. E. M. Baker, brought suit against J. F. McCurdy, and alleged, in substance: The testatrix niade a loan of $2,000 to one J. A. Campbell, and to secure its payment Campbell executed a security deed to her, conveying a lot of land in DeKalb county.

<p>1. A petition which contains two distinct causes of action in favor of different plaintiffs against the same defendant is defective, but the defect may be cured by an amendment eliminating one of the plaintiffs and one of' the causes of action. Such a defect is one of form and not of substance, and must, be taken advantage of bj' special demurrer filed at the first term.</p> <p>2. When two causes of action against a defendant in favor of different plaintiffs are tried at one time, as a result of the failure of the defendant to raise the objection to the misjoinder of the causes of action at a proper time, and a verdict for one sum in favor of both plaintiffs is rendered, and no objection is raised, at the time the verdict is received, to' the form in which the verdict is rendered, the irregularity in the form of the verdict is no sufficient reason for granting a new trial. The payment of the verdict as rendered to the parties jointly, or to their attorney of record, will discharge the defendant from liability to both of them on account of all matters alleged in the petition.</p> <p>3. The rule in reference to the sequestration of witnesses does not apply to a witness who is a party to the case, even though there may be several parties on the same side who are all to be examined as witnesses.</p> <p>4. The operation of a railroad by a lessee, in the absence of express statutory authority exempting the lessor from liability for the acts of the lessee, does not change the relation of the lessor company to the public; and the servants of the lessee company are, as to acts for which the lessor company may be held liable, in legal contemplation as much the servants of the lessor as of the lessee, and are therefore not competent to serve as jurors in an action by a passenger for damages against the lessor-, based upon an injury received as a result of the negligence of the servants of the lessee company.</p> <p>5. In the absence of any consent or agreement, either expressed or implied, on the part of the husband that the earnings of the wife shall be retained by her as her separate estate, they belong to him. ,</p> <p>6. The damages that may-be recovered by the husband for the loss of the services of his wife by reason of personal injuries are not confined to the value of her services in.the household, but may include the value of her services rendered in her husband’s business, where she was thus engaged at the time of the injury without any contract or" expectation of pay for the same.</p> <p>7. The charge of the court, when considered as a whole, was free from any ■substantial error of which the defendant was entitled to complain. The evidence authorized the verdict, and the discretion exercised by the trial judge in refusing a new trial will not be controlled.</p>

Action for damages. Before Judge Cann. Chatham superior 'court. March 23, 1905.

Action for damages. Before Judge Norwood. City court of Savannah. May 20, 1905. Henry Young brought an action against Smith & Kelly Company, a corporation, for damages alleged to have been sustained by him on account of the negligence of the defendant. The material allegations of the petition were as follows: The foreign owners of a steamship consigned her to J. F. Minis & Company at the port of Savannah, Georgia, to be loaded by them with cotton.

Action for damages. Before Judge Norwood. City court of Savannah. May 15, 1905. The Propeller Tow-Boat Company of Savannah sued the telegraph company for damages on account of an error in the transmission of a tel'egram.

<p>Appeal. Before Judge Cann. Chatham superior court. March term, 1905.</p>

<p>Trover. Before Judge Norwood. City court of Savannah. June 26, 1905.</p> <p>Moore & Company brought suit in trover against the Merchants and Miners Transportation Company, for 301 sacks of oats. An agreed statement of facts was submitted to the court, which in brief is as follows: On October 21, 1903, Joseph Gregg shipped from Chicago to Savannah, over the Baltimore & Ohio Railroad, 301 sacks of oats, consigned to the order of Joseph Gregg, with direction to notify Moore & Company. The bill of lading was issued to Joseph Gregg, who indorsed it and attached it to a draft on Moore & Company for $579.50, which was paid by Moore & Compaq, who thus obtained the bill of lading. The oats were billed to Moore & Company for $699.83, the freight being $112.80, and brokerage $7.53. The Baltimore and Ohio Railroad Company uansported the oats to Baltimore, and there delivered them to the defendant, but by an error delivered them upon a way-bill directing delivery to Ganahl & Sauss}r, at Jacksonville, Florida. The defendant brought the oats to Savannah, where they were recognized by a clerk of Moore & Company as the shipment for which Moore & Company had received the bill of lading. Moore & Company so notified the defendant, but pending an investigation the defendant delivered the oats to the Seaboard Air-Line Bailway to be carried to Jacksonville, as per way-bill.</p>

<p>, Complaint. Before Judge Norwood. City court of Savannah. August 18, 1905.</p>

<p>A corporation, organized and conducted purely for charitable purposes, owned real estate and buildings which were used solely in conducting 'a school. Nominal fees were charged for tuition and board, but the income thus derived fell far short of the expenses of the institution, and the deficit was supplied by donations collected by the corporation. The school yielded no profit, and the corporation declared no dividends, nor were profits or dividends in contemplation in the conduct of either. Meld, that the property was exempt from taxation undfer the provisions of section 762 of the Political Code.</p>

<p>Certiorari. Before Judge Seabrook. Effingham superior court. May 8, 1905.</p> <p>Duggan sued the railway company, in a justice’s court, for damages on account of the killing of a calf by a train on the defendant’s railroad. At the trial he testified that he found his calf lying at the side of the railroad after the train had passed, and that apparently it had just been killed. The defendant admitted the killing and the value of the calf. A witness introduced by the defendant testified: “I am an engineer on the Central of Georgia Railway. I was running the engine of the passenger-train that killed Mr- Dug-gan’s calf. . . On approaching Eden that morning I blew the station signal, also the road-crossing signal, before I saw the calf. When I first saw the calf it was about 150 yards beyond the public crossing, about 5 or 6 feet from the track. It got on the track and ran some 40 or 50 feet before the engine was on it and killed it. As soon as I saw it I blew the stock alarm and applied the brakes. My engine was in good order, well equipped to control the train. I could not have stopped the train as quickly, going at the speed it was, had I reversed. Therefore I did not reverse the engine. I was in schedule, going 30 miles an hour, when I first saw the calf, and at the rate of 25 miles an hour when I struck the calf. I blew when I got to the road crossing; did not continue to blow till I got to the crossing. We are not allowed to keep on blowing when the public crossing is in a town. It is true that if I had had my train under such control when I reached the crossing that I could have stopped the train at the crossing, I would have done it and would not have killed the calf, because I saw the calf when I was about 100 feet from the crossing. The calf was about 150 feet beyond the crossing. The reason I did not see the calf sooner was that it was behind the mail crane and about the same distance from the track as the mail crane. The mail crane is about 4 feet high and two and a half feet wide. It obstructed my view of the calf until I got in about 200 feet of the calf. I could not have done more to save the-calf. But for the obstruction of the mail crane I would have had ample time to have saved it, though I was running 30 miles an hour. I blew four blasts when I got to the public crossing blow-poát.” John Young testified that he was fireman on the engine when the cal f was struck, and was busy firing and therefore did not see anything; he only knew that the engineer blew the station signal and the road-crossing signal. No further testimony was introduced. The trial resulted in a verdict for the plaintiff. The defendant, in its petition for certiorari, the overruling of which is assigned as error, complained that the verdict was contrary to law and the evidence.</p>

Complaint for land. Before Judge Felton. Bibb superior court. May 18, 1905.

<p>Petition for injunction. Before Judge Seabrook. . Effingham superior court. June 24, 1905.</p>

Trover. Before Judge Felton. Bibb superior court. May 29, . 1905. Laura B. Bogers brought an action against S. Blouenstein to recover a diamond ring and setting and a diamond pendant and setting. The evidence showed that on June 18, 1902, the plaintiff' executed an instrument in writing by which she conveyed the diamonds to Carroll D. Judson for the sum of $100.

<p>An electric chandelier, annunciator, and like contrivances or devices attacked to the ceiling- or walls of a liouse by a tenant, at his own expense and for his personal comfort and convenience, come within the legal definition of “domestic fixtures,” when so placed that they can be readily detached without injury to the premises. In the absence of any under; standing to the contrary, such fixtures may be removed by the tenant at any time during his term or occupancy, and even thereafter if he be deprived of the opportunity to remove them by a wrongful retaking of possession of the premises by the landlord. Not being annexed to the rented structui’e with any view to their becoming permanently attached thereto as a part of the realty, they do not lose their identity as chattels, and a possessory warrant will lie to recover them from a landlord who wrongfully withholds possession thereof from the tenant.</p>

<p>If certain persons bought property and gave promissory notes therefor payable to the vendor or order, two of them signing as principals and one as surety for them, and such notes were transferred to a bona fide purchaser for value, before due, and without notice, in a suit by the holder against the makers, the surety, and the payee as indorser, the makers and the surety for them could not, by alleging that the property was of no value and that there was a total failure of consideration, claim to occupy the position of sureties for the original payee, and to have the judgment in favor of the plaintiff so molded as to declare that they were such, and that they should have the privilege of paying the judgment and being subrogated to the rights of the plaintiff.</p>

<p>Certiorari. Before Judge Holden. Elbert superior court. June 12, 1905.</p>

Complaint. Before Judge Holden. Glascock superior court. June 27, 1905. Suit was brought in a justice’s court and carried by appeal to the superior court. It was based on a promissory note dated December 15, 1904, due December 30, payable to the order'of the Union Central Life Insurance Compaq, and signed by Henrietta Neal.

<p>Action on contract. Before Judge Holden. Elbert superior court. July 10, 1905.</p>

<p>On the hearing of a motion to dissolve and vacate a temporary injunction, the court is without jurisdiction to enter a final decree disposing of the main case on its merits.</p>

<p>Levy and claim. Before Judge Eussell. Walton superior courtl July 15, 1905.</p>

Injunction. Before Judge Kirusey. Hall superior court. June 27, 1905. E. D. Maxwell brought a petition for injunction against A. J. Warner, W. A. Carlisle; John Sargent, and John Yonce, and alleged: Petitioner is the owner of about fifty acres of land on the Chattahoochee river.

<p>Certiorari. Before Judge Kimsey. Hall superior court. July 18, 1905.</p> <p>A fi. fa. in favor of S. J. Busha was levied on a bale of cotton as the property of E. B. Dollar, the defendant in fi. fa., and a claim thereto was interposed by his wife, Mrs. L. J. Dollar. On the trial, of the claim case in a justice’s court, the claimant admitted possession of the cotton in the defendant in fi. fa. after the rendition of the judgment against him. She testified, that the cotton belonged to her; that it had been raised on land of which she was in possession and which had been given her by her mother; that she and her children performed most of the labor in growing the cotton, though her husband worked some with "them; that the plowing was done with a mule belonging to her, and she bought and paid for the guano to make the cotton; and that she did not rent the land to her husband, but he rented other land to make corn. The claimant’s mother testified that she had given the land to her daughter, who had been in possession of it several years, but that no written deed to it had ever been delivered to her; that she owned the mule and ran the business, and her husband had no interest in the land or stock. Another witness swore that claimant owned the land and stock, and that the cotton was hers; and that he had “traded for the mule for her.” The defendant in fi. fa. testified: “I never had any interest in the land; it belongs to claimant; her mother gave it to her. I never rented the land from claimant. I hauled the cotton to the gin for her.” The plaintiff in fi. fa., introduced no evidence in rebuttal’, nor did he make any effort 'to impeach any of the witnesses who had testified. The jury nevertheless found the property subject, and the claimant took the ease by certiorari to-the superior court, where the finding of the jury was upheld. Exception is taken to the judgment overruling the certiorari.</p>

<p>1. The special lien of a landlord for money or supplies furnished in making a crop exists, and can he foreclosed as a lien, only on the crops of the year in which the advances are made. A balance of indebtedness for a prior year pan not be included in a foreclosure of such a lien, even by agreement of the parties at the beginning of the year that such balance shall be included with the advances of that year.</p> <p>2. Estoppel can not operate to create a special lien with the right of summary foreclosure, where no such lien exists under the statute.</p>

Petition for injunction. Before Judge Wright. Floyd superior court. June 10, 1905.

Injunction. Before Judge Pendleton. Fulton superior court. September 21, 1905.

<p>Action for damages. Before Judge Cann. Chatham superior court. August 7, 1905.</p> <p>Mrs. Bertha Goodman brought an action for damages against Sam. Friedman, alleging that while she “was proceeding quietly along Margaret Street,” in the city of Savannah, “on her way home,” she living on one side of this street and the defendant upon the other, and “as she got to a point on said street opposite his house, a' vicious dog,” of which the defendant was the owner or keeper, “sprang upon her and bit her severely, throwing her to the ground and fastening his teeth in her right breast, inflicting dangerous, severe, and painful wounds,” and that she was also severely bitten in other places upon her body. She further alleged that the defendant knew of the viciousness of the animal, but failed and refused “to keep his dog shut up.” The defendant, in his answer, admitted that he kept the dog in question and that it had bitten the plaintiff; denied that he knew that it was vicious, and alleged that it was not, but was gentle and kind, ahd that his own little children and those of his neighbors were accustomed to play with it, without being harmed or injured by the animal in any way. He further alleged that “the members of plaintiff’s family would irritate and tease the dog and throw rocks and other missiles at him; that upon one occasion a member of the family, with their dogs, was passing the house, and the dogs becoming engaged in a fight, she took a stone or brick and struck this dog, injuring him so seriously that he was unable to walk for some time; that this treatment caused the dog to have an intense aversion to the members of the family, and that one day one of the girls was passing and he caught her cape and tore it; that the dog was not vicious, however, because when this happened one of the other children present caught the dog around the neck and held him so that he could not do her any harm.” He further alleged that when he “heard of this occurrence he took the dog out into the country, so that it would not be possible for these people to come in contact with him, but on the day that the plaintiff was bitten one of the hands had loosed the dog for the purpose of helping him to catch a sheep, . . and the dog, as was perfectly natural, ran away and came back home; and “when near defendant’s home he met the plaintiff, and evidently seeking to avenge a wrong which he considered had been done him, he bit her.” On the trial the plaintiff showed that the attack of the dog upon her was wholly unprovoked, and the character and extent of her injuries. There was evidence, pro and con, as to the dog’s previous viciousness. The evidence for the plaintiff showed that the animal, prior to its attack upon her, had bitten other people, among them her niece, Miss Rachel Friedman, who testified that, without provocation on her part, the dog had bitten her, torn her cape, and torn the clothes off her; that she carried these clothes to the defendant, showed them to him, and told him about the occurrence, ando to keep the dog in the house. The defendant testified, that Miss Rachel Friedman had come to him and told him that the dog jumped on her somewhere on the street, and if it had not been for Milly Davis he would have bitten her, that the dog tore her cape up; and that she showed him a cape and waist. He also testified that he took the dog. “out to the country, and he was tied, and one of the colored men out there unloosed him to catch sheep, and the dog came back to the city on the day this thing happened to Mrs. Goodman.” The jury found a verdict for four hundred dollars in favor of the plaintiff. The defendant made a motion for a new trial, which was overruled, and he excepted.</p>

<p>Motion to dismiss the writ of error.</p> <p>On January 18, 1901,. Valentine Kalin brought an equitable petition against Paul Hollis and William Eice, praying that the title to certain property be declared’to be in him, or that a sale of the property be ordered to repay him for certain moneys advanced; and for other relief. It was alleged that Jere Hollis held the title to the property as trustee for Maria A. Hollis and her children, and that Paul Hollis, who was one of the beneficiaries of the trust, had possession of the property, by his tenant William Eice. By amendment it was alleged that Jere Hollis died during the year 1900, and that no trustee had been appointed in his place; and the plaintiff prayed that Maria A. Hollis, Claude Damour, T. G. Hollis, Jere Hollis, A. H. Simmons, Francis Johnson, Clay Hollis, Julian Hollis, and Olive Hollis, the beneficiaries of the trust, be made parties. This prayer was granted. It appeared that Claude Da-mour and A. H. Simmons were non-résidents, and service was perfected upon them as provided by law. Paul Hollis, Claude Da-mour, and T. G. Hollis filed a demurrer to the petition, on the ground that it was prematurely brought; and this demurrer was sustained, and the case was dismissed as to all the defendants. Prior to the filing of this demurrer Paul Hollis had filed an answer. The other defendants Avere in default.</p> <p>The plaintiff filed a bill of exceptions, in which he excepted to the judgment of the court sustaining the demurrer and dismissing his petition. Service of this bill was made upon Paul Hollis, T. G. Hollis, and Claude Damour, and upon Jere Hollis, for himself and as guardian ad litem for Olive Hollis and Julian Hollis. On the bill of exceptions is an affidavit of Henry Moran, that he served Julian Hollis with a copy of it. While the case was pending in this court the clerk of the trial court transmitted to the clerk of this court what purports to be an entry of service upon Olive Hollis and Maria Hollis by a deputy sheriff, dated four daj^s after the bill of exceptions was certified, accompanied by an order of the judge, passed while the case was pending in this court, purporting to allow the entry of service to be filed as part of the record. There is nothing to indicate that this entry had ever been upon the original bill of exceptions or annexed thereto before it was transmitted. Also attached to the record is an affidavit that A. H. Simmons lias been dead three years or more. There is no entry of service as to the other defendants.</p>

Complaint for land. Before Judge Felton. Bibb superior court. June 1, 1905. Thomas Lee ancb Sarah Sheffield brought suit against Charlotte Humphries and others, for a certain described tract of land and mesne profits. The jury returned the following verdict: “We, the jury, find for the plaintiffs the land and mesne profits $3.00 per annum for rent of land. We find for defendant the value'of the improvements, $188.50. April 21, ’05.

Complaint. Before Judge Hodges. City court of Macon. June 13, 1905. W. A. Davis & Company brought suit upon a promissory note, against Burnett and Brown. Burnett filed an answer at the appearance term, in which he admitted the execution of the note, but alleged that he had executed it under a mistake, and that the amount of his indebtedness was less than the amount of the note.

<p>A sale of a stock of merchandise in bulk, not in compliance with the provisions of the act approved August 17, 1903 (Acts of 1903, p. 92), is void as to creditors, on the ground of fraud;' and a creditor of the vendor may proceed by attachment against his fraudulent debtor. It appearing from the allegations of the petition that the plaintiff’s statutory remedy by attachment against the fraudulent debtor was both available and complete, the prayer for the extraordinary remedies of injunction, and receiver was properly denied.</p>

<p>Complaint for land. Before Judge Holden. Hart superior court. January 4, 1905.</p>

Action on bond. Before Judge Proffitt. City court of Elberton. February 22, 1905. A fi. fa. in favor of A. S. Oliver and against D. H. Warren, issued from the justice’s court for the 202d district, G. M., Elbert county, was placed in the hands of W. H. Irwin Jr., bailiff of the county court, for the purpose of levy.

<p>Application for administration — appeal. ' Before Judge Holden. Warren superior court. April 7, 1905.</p>

<p>Action for damages. Before Judge Holden. Oglethorpe superior court. April 17, 1905.</p> <p>The question presented for determination in this case is whether or not the trial court erred in sustaining a general demurrer to the plaintiff’s petition. He a^eged that he received permanent physical injuries while in the service of the defendant railroad company in the capacity of fireman and brakeman on 'its road, which extends from Crawford to Lexington, in this State. He further alleged, that he was under the direction and subject to the control of another of the company’s employees, who acted both as conductor and engineer upon the only train operated on that road, and that it was his duty to fire the engine and also to leave it at certain points along the line in order to apply the brakes to the train, which was a train for the carrying of both freight and passengers. As to the circumstances under which he received his injuries, his petition furnishes the following account: In coming from Crawford to Lexington, there is, near the latter station, a considerable down-grade which makes it necessary that the brakes on the train should be applied in order to bring it to a stop at that station without injury to or strain on the engine or other machinery, especially when the train is in part made up of freight-cars or cars other than the regular passenger-coach, the train not being equipped with air-brakes. When freight-cars were attached between the engine and the passenger-coach, it was the plaintiff’s duty to leave the engine at this point, while the train was in motion, stepping from the engine to the ground, and then to get upon 'the platform of the passenger-coach while the train was still in motion, and there apply the brakes. He had been working on the road in the dual capacity of fireman and brakeynan for several years. On the day of the injury several heavy cars were attached to the engine in front of the passenger-coach; and when the train was coming down the decline or down-grade near Lexington, the plaintiff, in the performance of his aforesaid duties and in obedience to the orders of his superior, who had charge of the train and authority to give such orders, undertook to alight from the engine and to get upon the platform of the passenger-coach to apply the brakes. He stepped from the. engine to the ground, and then attempted to get on the platform of the passenger-coach as it approached, but was thrown violently to-the ground, and the coach ran over one of his feet. The “train, when he undertook to board the same, was moving at an unusually high rate of speed at this point, though petitioner was not aware of such unusual or dangerous rate of speed,” and “just at that time passengers came out upon the platform of said passenger-coach, and even upon the bottom steps of the same, and in the way of petitioner, as he undertook to perform said duties and to obey said orders.” The plaintiff alleged that “the failure of said company to eqnip said train with air-brakes, the requiring of petitioner to alight from and to board a moving train, the running of such train at such dangerous rate of speed, knowing that petitioner was required to perform these duties, and the allowing of passengers to occupy the steps of the platform of the passenger-coach, under such circumstances, was each gross negligence in said company, and that his said injuries are the direct result of said negligence and due in no way to any fault or negligence on his part.” Plaintiff was a strong, healthy man, thirty-two years of age.</p>

<p>1. Where, pending a receivership, -application is made to the court by a creditor for leave to effect with the receiver and others a settlement which is represented to be advantageous to all parties concerned, and the receiver is ordered by the court to show cause why the offer of settlement should not be accepted, he may, in the event he is dissatisfied with a judgment directing him to make settlement on the terms proposed, sue out a writ of error assigning error on such judgment.</p> <p>2. That the evidence introduced on the hearing of the application is not properly brought to this court, and can not, for that reason, be considered, affords no reason for dismissing the writ of error.</p> <p>3. A bill of exceptions Avhich recites that the trial judge overruled a demurrer to the plaintiff’s petition, and that exception is taken to such ruling and suclr ruling is assigned as error, presents a legally sufficient assignment of error, when the demurrer is specified as a material part of the record and discloses what objections were urged against the petition.</p> <p>4. When a court of competent jurisdiction has undertaken to exercise exclusive control over the winding up of the affairs of a defunct bank, a creditor may, in behalf of himself and other persons at interest, file an intervention praying leave to effect a settlement with the receiver of a valid claim held against the bank; and if the receiver, as the representative of its stockholders and other creditors, fails to show cause, upon being cited to do so, why the proposed settlement should not be authorized, the court may, in its discretion, order him to accept the terms of settlement offered by the intervening creditor, to the end that long and expensive litigation may be rendered unnecessary.</p>

. Complaint for land. Before Judge Holden. Hancock superior court. May 31, 1905. The land which is the subject-matter of this suit was originally owned by James Hall. He died testate, devising the land to- his two children, Sarah Hall and Nancy Watts, wife of William Watts, jointly. William Watts and Sarah Hall were named in the will as coexecutors.

Petition. Before Judge Holden. Elbert superior court. May 27, 1905. A petition was filed by A. S. Hawes, as trustee in bankruptcy of J. J. Stephenson, against the Bank of Elberton, to set aside an al-. leged preference in favor of the bank, made by the bankrupt within four months next preceding the filing of the proceedings in bankruptcy. The case made by the petition was substantially as follows: Stephenson had been conducting business as a wholesale grocer in Elberton, Ga.

<p>1. Upon grounds of public policy, communications which would otherwise be slanderous are protected as privileged, if made in good faith in the prosecution of an inquiry regarding a crime which has been-, committed, and for the purpose of detecting and bringing to punishment the criminal. Statements likewise made in the prosecution of efforts to recover property which has been stolen are also protected as privileged communications.</p> <p>2. There was evidence to sustain the verdict, and no sufficient reason has been shown for reversing the judgment.’</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. September 10, 1904.</p> <p>Rufus J. Moore brought bis action against the C. L. King Manufacturing Company, to recover damages for injuries alleged to have been sustained by him "while he, as an employee of the defendant, was repairing and adjusting a gang-saw in its machine-shop, which he alleged was suddenly and negligently put in motion by John L.. Shellenberger, general superintendent and principal managing. agent of the defendant company. The defendant in its answer denied that Shellenberger put the gang-saw in motion, and further-denied that plaintiff was injured in consequence of any negligence-on the part of the defendant. The trial resulted in a verdict for-the defendant. The plaintiff’s motion for a new trial having been overruled, he excepted. With reference to the position which Shel-lenberger occupied in the shop, relatively to the plaintiff and the defendant company, the plaintiff testified: “Mr. Shellenberger was. superintendent and general manager, in charge of the business in every way.” Shellenberger testified: “C. L. King was president of' the mill. C. L. King was general manager. I did not work regularly on any of those machines. Occasionally, when it was-necessary to do anything that did not require any length of time, I did work on them. I did not have much time to work on machinery, because it takes most of my time to direct the employees, and to see that they have work to work on/ I was foreman. My duties as superintendent are, to employ hands and set them to work y to lay out and plan work, direct the employees to do whatever there was to do. I had general charge of the shop. Mr. King had authority above me in the shop. In the shop work I was subject to. Mr. King’s orders, in the shop or anywhere else. Sometimes Mr. King stayed in the shop, and generally in the office, but I superintended the shop work. He directed me and I directed the employees. The directions- to the employees were all given through me.” He further testified that he employed the plaintiff. The case made by the evidence for the plaintiff was to the effect, that, on the day his injuries were received, he was at work on a machine known as the planer, when Shellenberger directed him to turn over the work he was doing to another employee, and that the plaintiff should adjust a gang-saw that was in the shop; that in order to do the work directed it was necessary for him to stop the machine that was running the gang-saw, in order for him to adjust the saws then on the machine; that while readjusting them Shellenberger negligently started the machine in motion, and the plaintiff was, in consequence, injured as set out in his petition. It was admitted by the defendant company that Shellenberger directed the plaintiff to readjust the gang-saw; but the evidence in its behalf was to the effect that at the time the plaintiff was injured Shellenberger was .about twelve feet away from the gang-saw, and that he had nothing 'to do with starting it in motion. It appeared from the evidence 'that the gang-saw was affixed to a table, which was three and a -•jhalf by five feet. There was an open space for the bed in this table, four inches wide, one and a half inches deep, and eighteen inches long, through which the saws projected, there being slots through it for the saws to run in. The bed was fitted in this open space and ma.de the top of the table solid, so that lumber could pass smoothly ■over it. Different beds had to be adjusted to the saws as the spaces between them were changed for ripping different sizes of lumber. 'There were tenons on each end of the bed, which fitted in corresponding notches in the bed space. There were three saws on the mandril. To start them the belt had to be shifted from a loose pulley, called the idler, to a tight one, and to stop them, from the tight one to the idler, by means of a stick called tlie shifter, at the right hand front corner of the table, and in easy reach of the •operator of the machine. ' On the occasion when the plaintiff was injured, he was told by Shellenberger to adjust the saw to cut pieces one half by three quarters of an inch. Plaintiff put three smaller saws on the mandril and smaller collars between the saws, then made a bed of oak timber of the size above stated, and placed one end of it in the notch in the table, in front of the saws, put his right hand on that end, and, for the purpose of cutting the slots in it, pressed the piece on the other end over the saws with his left hand; and he testified that while in this position, Shellenberger suddenly and negligently started the saws, causing the injury. The defendant, as already stated, contended that Shellenberger did not start the gang-saw, and that the plaintiff’s injury was caused by his own negligence, in selecting a dangerous method of doing the work in which he was engaged, instead of the proper and obviously safe method of doing it, that is, by preparing a plank long enough to reach over and beyond the saws, so that while cutting the slots he •could hold it doyjn with his right hand, in front, against the cleat, and press it beyond the saws with his left, so that his hands would be out of the way of the saws; and that the slots should have been finished with the hand-saw and the timber then fitted in the space in the table. Evidence was submitted by the defendant tending to show that this was a proper and safe method of doing the work on which the plaintiff was engaged when injured.</p>

Mandamus. Before Judge Pendleton. Fulton superior court. June 7, 1905.

Petition for injunction. Before Judge Pendleton. Fulton superior court. June 14, 1905.

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. June 14, 1905.</p>

<p>1. Where an injunction was granted on August 16, 1905, and the presiding judge left the State on the same day and did not return until after the lapse of more than twenty days; and where the plaintiffs in error sought to tender the bill of exceptions in due time, and after the return of the judge he certified it at the earliest possible date, stating the cause of the delay, and the plaintiffs in error were without fault, the writ of error will not be dismissed.</p> <p>2. The decisions in Jackson v. State, 93 Ga. 216, and Gibson v. Thornton, 99 Ga. 647, reviewed and reversed. Markham v. Eiiff, 72 Ga. 106, distinguished.</p> <p>3. Certain dealers in stoves, stove plates, etc., in Savannah filed an equitable petition against the railroad commissioners of the State and certain railroad companies. It was alleged that the commissioners had issued a circular fixing freight rates 'which the railroads should charge on articles of the character mentioned, from Atlanta to various other places in the State; that these rates were so low that they discriminated in favor of Atlanta shippers against those in Savannah shipping to the same places under like circumstances; that this was done under a policy of discrimination on the part of the commissioners for that purpose; that they considered interstate rates for freight in fixing intrastate rates; and that the railroad companies would jobey the commissioners and charge the reduced rates from Atlanta without changing the rates previously existing from Savannah. By amendment it was alleged that the lower rates had been by the commissioners made to apply to shipments from Rome, Dalton, and Roekmart. None of the railroad commissioners lived in Chatham county where the proceeding was instituted, but in other counties of the State; and only one of the railroad companies had its main office there. * An injunction was prayed against the commissioners and the railroad companies. Held, that, on demurrer by the commissioners to the jurisdiction, it was error for the judge of the superior court of Chatham county to entertain jurisdiction and grant the injunction prayed.</p> <p>4. The action, if meritorious, should have been brought in the county where one or more of the railroad commissioners resided.</p> <p>5. As the superior court of Chatham county was without jurisdiction to pass on the merits of the questions involved (the point having been duly made by the commissioners) and the grant of an injunction was therefore error, this court will not now pass on the reasons given by the presiding judge for such grant, or discuss the question whether, if the court had had jurisdiction, the judge could have granted an injunction in such a case.</p>

<p>1. In passing upon a ground of a motion- for a new trial based- upon alleged expressions of opinion of jurors before the trial as to the guilt of the accused, the trial judge occupies the place of a trior, and his finding that the jurors were competent will not be reversed unless under all the facts the discretion of the judge was manifestly abused.</p> <p>2. While the testimony of a witness.whose evidence goes to the jury through the medium of dying declarations is to be considered under the same rules that govern them in-determining the credibility of other witnesses who testify from the stand, the failure of the judge to charge upon the subject of such rules will not be a sufficient reason for granting a new trial, in the absence of an appropriate and timely 'written request asking instructions upon the subject.</p> <p>3, The evidence authorized the verdict, and the judgment refusing the new trial will not be disturbed.</p>

<p>Certiorari. Before Judge Spence. .Worth superior court. October 30, 1905.</p>

<p>Accusation of cruelty to animal. Before Judge Norwood. City •court of Savannah. October 20, 1905.</p>

<p>Accusation of selling liquor. Before Judge FairclotL City court of Wrightsville. November-20, 1905.</p>

<p>There was no error in the rulings on the admission of evidence. The alleged newly discovered evidence was impeaching in its character. The evidence authorized the verdict, and the discretion of the trial judge in overruling the motion for a new trial will not be interfered with.</p>

<p>Indictment for burglary. Before Judge Boan. Fulton superior-court. November 19, 1905.</p>

<p>Indictment for larceny from house. Before Judge Bawlings-.. Washington superior court. November 4, 1905.</p>

<p>■ Accusation of misdemeanor. Before Judge Davis. City court of' Lexington. November 11, 1905.</p>

<p>As the evidence for the plaintiff was not sufficient to authorize a verdict in his favor, the court committed no' error in granting a nonsuit.</p>

<p>1. Those sections of the code (Civil Code, §2955; Pol. Code, §755) which give to municipalities the right to define by ordinance the powers and privileges of pawnbrokers and to exercise over them general control, do not confer upon such corporations the power to allow pawnbrokers to charge usury:</p> <p>2. A renewal thereof does not divest a usurious contract of its taint, al* though the illegal interest thereon to the date of renewal be then fully paid.</p>

Action for damages. Before Judge Gann. Chatham superior court.

<p>X. Where the description in a deed to personalty is so general that the property sought to be thereby conveyed can not be distinguished from the • general mass of articles of a similar nature, the instrument is void for uncertainty.</p> <p>2. The mere allegation that the court refused to permit the plaintiff “to show by [a named witness] that the property sued for was the property of” the plaintiff, is not a good assignment of error.</p> <p>3. The granting of the nonsuit was proper.</p>

<p>Complaint. Before Judge Hodges. City court of Macon. June .19, 1905. '</p> <p>A. S. Blount sued D. S. Whitt and G. E. Artope on three promissory notes given by the defendants to the plaintiffs, dated October 10, 1903, aggregating $500, and due respectively two, four, and six 'months after date. The defendants filed the following plea: In 1903 defendants entered into a contract with plaintiff, “in which he Agreed to work for a business known as the ATtope & Whitt Company and owned by them.” Under this contract he was given ■control and management of their marble yard at' Bocky Mount, North Carolina, and all of the business connected with,it in the States of Virginia, North Carolina, and South Carolina. In 1904 the plaintiff, “contrary to his duties to defendants, and contrary to the law and good morals, got the affairs of said business and said marble-yard business [so] thoroughly in his control as that no one else understood the same nor could manage the same. Thus he brought about such a state of affairs that defendants could not do without him except at great financial loss to themselves. Following out his plan, he refused to carry out his contract with defendants and threatened immediately to quit their employment unless they would submit to certain new and unjust demands,” to wit, the giving of the note sued on and “the payment of a certain sum of money.” Moreover he threatened “to leave and take- with him certain property, and to retain funds amounting to $847.36,” which he had collected for defendants. “In addition to this [plaintiff] had and controlled numerous writings, contracts, et cetera, for work to be erected, amounting to thousands of dollars, and had it in his power to collect large sums for work which he had done and controlled, and. which he alone could collect with facility and without great loss to defendants.” Plaintiff, “being insolvent and understanding the power he had to coerce defendants, forced them into signing ‘said notes, he agreeing as a part of the consideration therefor to continue on in their service for the year, and especially to carry out the contracts which he had obtained, and to collect the outstanding debts due them, and to do all other things in his power usual in such circumstances to carry-on the business of defendants. After coercing defendants to pay him the sum of money and give him the notes as above stated upon the consideration of his agreement to serve them for the year and collect the monies due them and save them the losses above referred to, [plaintiff] . . in >& week or two thereafter and before the said year was out, contrary to said contract, did quit the service of defendants, and by so doing-caused them to lose large sums of money aggregating one thousand dollars or other large sum, an itemized list of same being hereto-attached, marked Exhibit ‘A.’ Wherefore, the premises considered,, defendants plead that said notes were obtained by fraud and duress,, and were without consideration, and that the consideration for same-has failed. They also pray that they may be allowed to recoup the-said damages in the sum of $1,000 against said plaintiff, and that they, may have judgment for same.” No exhibit or itemized statement of damages suffered by defendants was annexed to tlie plea. The plaintiff demurred to this plea, on the grounds, (1) that the-contract set out therein appears to have been made between the-plaintiff and the Artope & Whitt Company, presumably a corporation and a third party, and the breach thereof can not be pleaded in defense to the action against defendants as individuals; (2) that, the allegations do not make a ease of fraud or duress; (3) that no-cause of action is set out against plaintiff to enable defendants to-recoup against him, and no bill of particulars is attached to the-plea; (4) that the terms of the contract which plaintiff is alleged to-have broken are not stated; and (5) that the plea admits the execution of the notes sued on and sets forth no valid defense to a suit, on them. The court sustained the demurrer generally and struck the plea, and, there being no issuable defense filed under oath, rendered judgment against the defendants. They excepted.</p>

<p>Rule. Before Judge Proffitt. City court of Elberton, May 13y 1905.</p>

<p>Complaint — appeal. Before Judge Holden. Taliaferro supe* rior court. June 2, 1905.</p>

<p>1. A charge inapplicable to the issues involved will not be cause for a new trial, where, in immediate connection therewith, the judge cures the: error by instructing the jury, in effect, that the law which he has. announced has no application to the case on trial.</p> <p>2. Where, while a trainman is endeavoring to fasten with chains two detached portions of a train which has become separated by reason of the-pulling out of the drawhead of one of the cars, the front part of the-train is moved back upon him and he is injured, the. injury is caused by the “running of the train,” within the meaning of the Civil Code,, §2321.,</p> <p>3. The rules of the defendant company, which the plaintiff contracted in-writing to obey, provided that “if anything connected with the coupling-apparatus, ears, or track be defective or out of order, making the coupling or uncoupling more difficult or dangerous than ordinary, . . the-rules prohibit employees from attempting to make the coupling or uncoupling, or from remedying the defect or difficulty, but [they] must immediately upon discovery report the same to the conductor or other-superior officer in charge of the train.” Held, that, under a fair construction, this rule contemplates that after the employee lias reported the defect to the conductor, he shall be subject to the conductor’s orders in taking the necessary steps to remedy it.</p> <p>4. In the absence of a written request to charge in the present case, there-is no merit in a ground of a motion for a new trial which complains that “the court erred in the entire charge to the jury, in failing, as movant contends, to charge them the doctrine that an employee takes the ordinary risk incident to his employment.”</p> <p>5. The evidence was conflicting, but the jury were fully authorized, under that offered for the plaintiff, to find the verdict rendered in his favor.</p>

<p>Action on contract. Before Judge Kimsey. Hall superior court. August 14, 1905.</p>

<p>Injunction. Before Judge Pendleton. Fulton superior court., June 1, 1905.</p>

<p>Indictment for murder. Before Judge Reagan. Spalding superior court. October 28, 1905.</p>

Action for libel. Before Judge Reid. City court of Atlanta., September 22, 1904. This action was. brought by W. S. Witham against the Atlanta. Journal. After a jury had been impaneled, and before any evidence-was introduced, the defendant made an oral motion to dismiss the petition, which was sustained, and the plaintiff excepted.

Action for damages. Before Judge Eeid. City court of Atlanta. November 17, 1905. This was an action for damages against a street' railway company. The petition was dismissed on general demurrer, and the plaintiff excepted.

<p>1. An indictment for tlie unlawful sale of intoxicating liquor, contrary to.. the local option liquor law, need not allege tliat the sale was for a valuable consideration.</p> <p>2. As has frequently been ruled, the failure to charge some other' legal proposition applicable to the case is not available for an assignment of error on a charge in itself correct.</p> <p>3. It was not error for the judge to give in charge to the jury sections. 986 and 987 of the Renal Code, relating to the amount of mental conviction required to warrant a verdict of guilty.</p> <p>4. Nor was it error for the court to instruct the jury that the accused was charged with the violation of the local option liquor law, and to read to them section 1548 of the Political Code relating to that law, and to charge them that peach brandy is an alcoholic liquor which if drunk to excess will produce intoxication.</p> <p>5. A correct instruction as to the rules for weighing testimony and reconciling conflicts therein was not rendered erroneous by a failure to charge, in the same connection, the law as to' the statement of the accused.</p> <p>C. The assignment of error upon the instructions as to the evidence of good character was not meritorious.</p> <p>7. The long excerpt from the charge, set out in the sixth ground of the amended motion for a new trial, was not “vague, uncertain, and confusing,” nor did the court express therein an opinion as to what had been pr-oved.</p> <p>8. As to the prisoner’s statement, the court read to the jury all of section 1010 of the Penal Code, except the last sentence. Such instruction was correct, and was not rendered erroneous by the failure of the court to tell the jury, in the same connection, that if they believed the statement they should acquit the accused, or by the failure to instruct them that they were the exclusive judges of the statement and authorized to give the accused the benefit of any part of it.</p> <p>9. Where the charge of the court was full, fair, and substantially correct on all the issues in the ease, the omission to instruct the jury as to the form of their verdict in the event they should find the accused not guilty was not cause for a new trial, when there was also an omission to instruct them as to the form of their verdict in the event they should find him guilty.</p> <p>10. “An improper sentence is not a proper subject-matter of. a motion for a new trial.” Truitt v. State, ante, 657.</p> <p>11. The evidence amply warranted the verdict, and the court did not err in refusing to grant a new trial.</p>

Habeas corpus. Before Judge Felton. Bibb superior court. November 3, 1905. An application for tbe writ of habeas corpus was presented to the judge of the superior court of.

Action for slander. Before Judge Kawlings. Jefferson superior court. June 5, 1905. Held: “2. A minister of the gospel is one following a profession, within the meaning of the law which makes a person liable without proof of special damage for words spoken of another with reference to his ‘profession, calculated to injure him therein/ It is not necessary that such a minister should, at the time the words are spoken, be…

<p>Complaint. Before Judge Cann. Chatham superior court. June 9, 1905.</p> <p>On May 25, 1903, William Fawcett was indebted to the firm of Charles S. Hirsch & Company in the sum of $4,000. To secure the payment of this debt he had previously delivered to that firm an ■unrecorded deed or lease held by him, covering the timber on what was known as the Woodstock plantation, in the county of Chatham.' Across the hack of this instrument Fawcett had written his name, and had authorized Hirseh & Compaq to write above it any transfer or conveyance of the timber that might be necessary. On or about the date above mentioned he negotiated a sale of the timber to the Denton Bok & Lumber Company for the sum of $6,000, but ■could not convey the title to that company without securing a surrender of the instrument delivered to Hirseh & Company and getting that firm to release its lien on-the timber. Hirseh & Company declined to surrender this security unless its demand against him was first satisfied. He was not prepared to pay the debt in full, and desired to secure a surrender of the deed or lease upon the payment of $1,500 out of the proceeds of the proposed sale of the timber, himself retaining $3,500 of the amount necessary to discharge the indebtedness. Hirseh & Company would not agree to this arrangement unless Fawcett furnished other adequate security, •and he thereupon procured and delivered to that firm a writing ■of which the following is a copy: “Savannah, May 35th, 1903. Messrs. Charles S. Hirseh & Co., Savannah, Ga. Dear Sirs: In ■consideration of your advancing to Mr. William Fawcett twenty-five hundred dollars, to be paid by him out of the proceeds of such lumber as he may ship to you, said payments to be made by the retention by you of twenty-five per cent, of the net sales of such lumber to be applied to the advance of twenty-five hundred dollars, I hereby guaranty the payment by William Fawcett to you of such ■advance. This guaranty to be limited to November 1, 1903. Respy. P. W. Meldrim.” On the faith of this guarant]', Hirseh & Company surrendered to Fawcett the deed or lease held as security for its demand against him, upon the understanding with him that he should sell the timber on the Woodstock plantation, pay the firm $1,500, and retain the balance of $3,500 due to it, out of the proceeds of the sale, as an advance of the $3,500 contemplated by the written guaranty signed by Meldrim. Fawcett subsequently sold the timber in accordance with this understanding, received the purchase-price, paid Hirseh & Company $1,500 thereof, 'and retained <$3,500 of the amount so received, as an advance from Hirseh & Company under the terms of their agreement. The timber so sold was located fifteen miles from Fawcett’s mill, was not being cut by him at the time, and could not have been used by him as long as his mill remained at the place where it was then located. At that time he had the right to cut other timber which was sufficient to last him till after November 1, 1903, without using the Woodstock timber. At various times subsequent to the sale of that timber, Fawcett shipped lumber to Hirsch & Company, and twenty-five per cent, of the net proceeds thereof was applied^ to the demand against him, which was in this way reduced to $1,605.81 principal. The payment of this balance of the $2,500 indebtedness was afterwards demanded of both Fawcett and Meldrim, but payment thereof was refused. Fawcett is unable to pay his indebtedness, and has no property out of which the debt can be collected.</p> <p>On October 27, 1904, Hirsch & Company instituted suit against Meldrim, with a view to holding him liable for the payment of the balance of the principal and accrued interest owing by Fawcett, the plaintiff alleging that Meldrim had guaranteed payment of an advance to him of $2,500 made by that firm. The defendant demurred to the plaintiff’s petition, upon'both general and special grounds. By way of amendment, the plaintiff recited the foregoing facts concerning the circumstances under which the alleged advance to Fawcett was made; and to meet the defendant’s special objection that the petition contained no allegation that the plaintiff had informed him that the guaranty would be accepted and acted on, the following additional allegations were made: Fawcett was a relative of Meldrim, and one of the considerations moving the latter to sign the guaranty was the natural love and affection he bore for his kinsman; he was himself the draftsman of'the contract of guaranty, which was in his handwriting, and since its delivery to plaintiff he has never undertaken to secure its return from either the plaintiff or Fawcett; the plaintiff did not request Meldrim to give this guaranty, but he signed it as a volunteer, so far as plaintiff was concerned, at the request of Fawcett; and the plaintiff neither concealed nor misrepresented.anything to Meldrim, had no communication with him with reference to the guaranty, and was under no duty to hold any communication with him. That Mel-drim, prior to the sale of the Woodstock timber, had knowledge of the understanding between the plaintiff and Fawcett that $2,500 of the proceeds of the sale should be treated as an “advance” to him was not claimed by the plaintiff. The court below sustained the general demurrer to the petition as amended, and overruled the special demurrers thereto. Exception is taken by the plaintiff to-the judgment in so far as it was in the defendant’s favor.</p>

Levy and claim. Before Judge Felton. Houston superior court. April 4, 1905. An execution in which Gano was plaintiff, and W. H. Harris; executor of H. C. Harris, was defendant, was levied on a described lot of land in Fort Valley, Ga. W. H. Hollinshed filed a claim. At the trial I. T. Woodard, administrator, was made,a party in place of Gano, deceased.

Equitable petition. Before Judge Holden. Elbert superior court. March, term, 1905.

<p>Complaint. Before Judge Holden. Hancock superior court. June 2, 1905.</p>

<p>The petition was demurrable, and the court did not err in refusing to allow the proposed amendment.</p>

Petition for removal of cause. Before Judge Russell. Gwinnett superior court. March 16, 1905.

<p>Action for damages. Before Judge Kimsey. Habersham superior court. January 23, 1905.</p>

Complaint for land. Before Judge Kimsey; Habersham superior court.. March 8, 1905. J. K. Burns and others brought their suit to recover of W. P. Furr a certain house and lot situated in the town of Clarkesville. Their petition alleged as follows: ’ The lot sued for was known as the Charles Deas place. For a long time prior to 1873 he owned it and lived on it; and in that year he died on it.

<p>In a proceeding to assess damages to a landowner by reason of the construction across liis promises of a telegraph line under the power of eminent domain, compensation may be awarded both for the land actually taken by the telegraph company and for all consequential damages arising from the erection and maintenance of its poles, wires, or other fixtures; but before a recovery can be had for consequential damages, proof must be adduced which discloses the nature and extent thereof and furnishes data from which a reasonable and proper estimate of the amorrnt of compensation to which the landowner is entitled may be made. The verdict in the present ease was excessive, there being no evidence authorizing a recovery of consequential damages, and the amount awarded being far above the highest proved value of the land actually appropriated by the telegraph company.</p>

Action for damages. Before Judge Hollingsworth. City court of Hall county. April 20, 1905.

Injunction. Before Judge Kimsey. Hall superior court. August 30, 1905. H. H. Dean brought a petition for injunction against the Mayor and Council of the City of Gainesville, and alleged: During the year 1902 the city issued bonds to the amount of $10,000, for the purpose of improving its streets, and macadamized a portion of Main and Green streets. All of this work was done by August 1, 1903.

Injunction. Before Judge Wright. Floyd superior court. September 27, 1905. W. B. Stoner filed his petition against Z. C. Patten and Reuben Lusk, to enjoin the diversion of a certain stream of water.

<p>Indictment for murder. Before Judge Lewis. Morgan superior court. October 16, 1905.</p>

<p>Indictment for murder. Before Judge Boan. Newton superior court.' November 18, 1905.</p>

<p>1. The finding of the trial judge on conflicting affidavits, as to alleged misconduct of the bailiff having charge of the juiy while considering as to their verdict, will, in the absence of abuse of discretion, be upheld by the Supreme Court.</p> <p>2. It is proper for the judge to frame his general charge to the jury upon the evidence alone,- appropriately instructing them, however, at some stage thereof, with respect to the prisoner’s statement.</p> <p>3. The charge as to the presumption of malice arising upon proof of a homicide was not open to the exceptions made thereto.</p> <p>'4. “The doctrine of reasonable fear as a defense does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.”</p> <p>5-14. There was no material error in any of the charges complained of; the court did not err in its failure to charge as alleged; the evidence fully warranted the verdict, and the court did not abuse its discretion in refusing to grant a new trial.</p>

<p>Certiorari. Before Judge Lewis. Jasper superior court. November 4, 1905.</p>

<p>Indictment for selling liquor. Before Judge Mitchell. Thomas superior court. November 18, 1905.</p>

<p>Indictment for murder. Before Judge Reagan. Spalding superior court. November 11, 1905.</p> <p>Henry Jordan was convicted under an indictment charging him with murder, and assigns error upon the refusal of the judge to grant him a new trial. Carrie Varner, a witness for the State, testified as follows: Henry Jordan and Mattie Jordan were at the home of the witness, and were talking about going to Fred Connor’s, Henry told her she was not going without putting on her shoes. Mattie J ordan said, one of her feet was swollen, and it hurt her to wear shoes, and she was going anyway. Henry was sitting in the door, trimming a piece of plank. She started off, and he threw down the plank and started after her. She looked back, saw him coming, and started to run. Henry threw the rock. He got it from under a hickory tree while following her. Witness could not tell exactly what size it was; it looked as if it might be as big as her fist. The rock hit Mattie Jordan, she fell, and when witness reached her she was dead. Dr. W. H. Dorsey testified, that on postmortem examination he found a bruise at the top of the vertebral column of the deceased, the third vertebra being broken. This could have been done by a rock hitting the deceased in the back of the neck. Breaking her neck would cause her death, but he could not tell what broke her neck. Striking it with a rock would produce the bruise he found. He found no abrasion of the skin. Whether a rock of sufficient size to break the neck would make an abrasion of the skin would depend, upon the character of the rock. A smooth rock would not necessarily make an abrasion; a rough one would. It is possible that the neck might have been broken hv the fall. A person falling in the position in which the deceased is said to have fallen and broken her neck, it would be almost impossible for her to cry out. A person hit from behind might go for some distance and fall without crying out. A person throwing a rock of the size as testified to by Carrie Varner might produce a wound on the neck of the character found 'on deceased. The witness looked thoroughly about the place where the woman was lying, and found no rock. There was a stump standing up in the ground near where deceased had fallen. Witness was shown a rock after-wards which was said to have caused the wound, but he did not see it at the place of the killing. The accused, in his statement, denied that he killed his wife, saying that he ran after her and she fell. He also asserted that they had had no trouble, and they had always gotten along well together. There was rebuttal evidence for the State that the accused and his wife had been seen quarrelling at different times, but no evidence that he had ever made any threats to kill her or harm her in any way. One witness testified that the rock, as described by Carrie Varner,'was, in his opinion, likely to produce death, and that a red, smooth rock was found near the place of the killing, a little larger than a man’s fist. The witness did not state that he found the rock, but that it was found by one Jake Barrett, who seems not to have been called as a witness.</p>

<p>indictment for burglary. Before Judge Kimsey. White superior court. November 18, 1905.</p>

Indictment for simple larceny. Before Judge Lewis. Jasper superior court. November 29, 1905. The indictment was for the larceny of a cow, alleged therein to be of the value of five dollars. The motion for a new trial was on the grounds that the verdict was contrary to law and the evidence.

<p>Indictment for burglary. Before Judge Littlejohn. Stewart superior court. November 16, 1905.</p>

The evidence did not warrant the verdict, and the court erred in overruling the motion for a new trial. Indictment for assault with intent to rape. Before Judge Bartlett. Paulding superior court. November 15, 1905.

<p>Indictment for murder. Before Judge Littlejohn. Stewart superior court. November 15, 1905.</p>

Indictment for misdemeanor. Before Judge Little. Chattahoochee superior court. December 2, 1905. The accused was convicted upon an indictment charging him with a violation of the statute referred to in the headnote, and moved for a new trial, which was refused, and he excepted.

<p>Indictment for robbery. Before Judge Roan. Fulton superior court. December 2, 1905.</p>

<p>Indictment for burglary. Before Judge Eoan. Fulton superior •court. December 5, 1905.</p>

<p>On the trial of one charged, under the Penal Code, §151, with robbery by force and intimidation, it is error to charge the provisions of the amendment to that section (Acts 1903, p. 43), declaring that the sudden snatching, taking or carrying away any money, etc., from the owner or person in possession thereof, without the consent of the owner or person in control thereof, shall also be robbery.</p>

<p>Indictment for assault with intent to murder. Before Judge láttlejohn. Schley superior court. November 16, 1905.</p>

<p>Indictment for murder. Before Judge Roan. Fulton superior court. December 5, 1905.</p>

<p>Indictment for larceny after trust. Before Judge Holden. Hart superior court. November 22, 1905.</p>

<p>Indictment for selling liquor. Before Judge Holden. Hart superior court. November 22, 1905.</p>

Indictment for assault with intent to murder. Before Judge Littlejohn. Schley superior court. December 5, 1905. The accused was convicted of assault with intent to murder. The prosecutor testified, that he was deliberately shot by'the accused without provocation, that he had made no assault upon the accused, and that he did not have a pistol or any other weapon at the time of the difficulty.

<p>The evidence upon which the accused was convicted in the county court failed to sustain the .charge made in the accusation, and therefore the judge of the superior court erred in not sustaining the certiorari upon the ground that the verdict was contrary to the evidence and to law.</p>

<p>Accusation of assault and battery. Before Judge Henderson. City court of Vienna. December 5, 1905.</p> <p>Pope was tried on December 5, 1905, in tire city court of Vienna, upon an accusation charging him Vith assault and battery. The accused filed a plea to the jurisdiction, upon the ground that the alleged offensé was committed on June 8, 1905, in the tenth district of Dooly county, that Crisp County was created on August 17, 1905, and organized on November 22, 1905, and that the tenth district of Dooly county thereafter became a part of Crisp county, and that therefore the city court of Vienna, which had jurisdiction only of offenses committed in Dooly county, had no jurisdiction over' the alleged offense. The plea further alleged that the accused resided in Crisp county. He also entered a plea of not guilty. The allegations of the plea to the jurisdiction were admitted to be true by counsel for the State. The accused moved for a judgment of not guilty, and for a dismissal of the case. The motions were overruled; and the accused was convicted. To these rulings he excepted.</p>

<p>A bill of exceptions which contains no assignment of error whatever presents no question for determination, and its dismissal can not be prevented by a proposed amendment assigning error for the first time in this court.</p>

Indictment for misdemeanor. Before Judge Beagan. Miller superior court. December 7, 1905. A special presentment was returned against Sutton, containing four counts.

Conviction of shooting at another. Before Judge Hammond. McDuffie superior court. November 25, 1905.

Accusation of receiving stolen goods. Before Judge Little. City Court of Sparta. December 11, 1905. , The evidence shows, that Culver, the accused, went to the livery-stable of Harrison, during Harrison’s absence, to buy a set of harness. He proposed at first to buy the harness from Pinkston, a servant of Harrison, and offered him $6 for it. Pinkston telephoned to Harrison, reporting the offer and asking for directions.

<p>An indictment which, charges one with .breaking and entering a railroad-car with intent to steal the goods, wares, and freight therein contained, and, after so breaking and entering, stealing therefrom certain articles of value, does not contain a misjoinder of two offenses in one count.</p>

Complaint, etc. Before Judge Gober. Cobb superior court.. May 1, 1905. The Dobbs Hardware Company instituted suit, declaring upon a. lien as contractor, mechanic, and materialman, and upon an open account, setting out by items the work done and material used, and their cost, thus showing a total indebtedness of $613.53, for which it prayed a general judgment and the establishment of its lien upon the improvements and the real estate on which they were situated.

Attachment. Before Judge Beid. City court of Atlanta. February 3, 1905.

<p>Action for damages. Before Judge Fite. 'Whitfield superior, court. January 9, 1905.</p>

<p>1. Where there is nothing in the evidence to show that the law of voluntary manslaughter is involved in the case, it is proper for the judge to omit it from his charge.</p> <p>2. Where on the trial of one accused ol murder the court erroneously • states to the jury that the accused admits that the deceased came to her death by being shot by a pistol in his hands, thereby excluding one theory of defense presented by the prisoner’s statement, error is committed requiring the grant of a new trial. And this is true notwithstanding the fact that the court may have intimated to the jury, in other portions of the charge, that the defendant did not admit that the deceased came to her death at his hands.</p> <p>3. In instructing the jury as to the credibility of witnesses who have willfully sworn falsely in a material particular it is the better practice for the court to instruct the jury that their testimony is to be entirely rejected’ unless corroborated in the legal manner, instead of simply instructing that such testimony is to be rejected unless corroborated.</p>

<p>Indictment for murder. Before Judge Felton. Houston superior court. December 16, 1905.</p>

<p>1. When it is made to appear that a defendant in error has been formally adjudged insane since the signing of the bill of exceptions, the guardian appointed by the ordinary, under the Civil sCode, §2570 et seq., may be made a party to- the record.</p> <p>2. In a suit for personal injuries by an employee against a railroad company, a nonsuit should be refused unless the evidence reasonably leads to the conclusion that the plaintiff was negligent. The nonsuit was properly denied in this case.</p> <p>3. When during the progress of a case a motion is made by the defendant to dismiss the case, based on the contention that the evidence adduced on the trial showed the plaintiff to be absolutely non compos mentis when the suit was filed and also at the time of the trial, and the evidence is not conclusive on the subject, it is proper for the court to refer this collateral issue of fact to the jury, under appropriate instructions.</p> <p>4. In ruling on the motion to dismiss because of the mental incapacity of the plaintiff to sue without a next friend or guardian, the remarks of the judge, assigning his reason for the ruling and the reference of the issue thus raised to the jury, were neither expressions of opinion upon the facts nor upon the credibility of the plaintiff who had testified as a witness.</p> <p>5. In his charge the judge recognized that the statute regulating the checking of the speed of trains at public crossings would not be applicable to a train started at or upon a public crossing, and submitted the issue of fact as to distance from the starting point of the train to the public-road crossing, with the instruction that if the distance was so short that the statutory requirement could not be met, the statute would not apply. This charge was adjusted to the facts of the case and was not error.</p> <p>Ü. The verdict was not excessive, and was warranted by the evidence.</p>

<p>Complaint. Before Judge Gober. Fannin superior court. August 16, 1905.</p>

<p>Complaint. Before Judge Fite. Catoosa superior court. February 9, 1905.</p>

<p>Action for damages. Before Judge Hamilton. City court of Floyd county. February 13, 1905.</p>

<p>Complaint. Before Judge Henry. Walker superior court. March 29, 1905.</p>

<p>1. “An employee [of a railroad company], being in the discharge of his duty, has the right to rely upon other employees doing their duty. Any omission of ordinary and reasonable care by the eoemployees of the plaintiff would be a violation of his right to the safety and security which the observance of such diligence would afford.” Hopkins on Personal Injuries, §218, citing Parker v. Railway Company, 83 G-a. 539.</p> <p>2. There was evidence from which the jury would have been authorized to find that at the time of receiving the injury complained of the plaintiff was in the exercise of due care and diligence; that he was free from fault, and that he was injured in consequence of a failure of his co-employees to exercise proper care and diligence; and awarding the non-suit was error.</p>

Certiorari. Before Judge Henry. Floyd superior court. March 24, 1905. Hillyer, transferee, brought suit upon a promissory note for $18 and interest, against Caleb Walker and Lula Walker. The defendants filed separate pleas. Lula Walker set up, that she signed' the note as surety for her husband, and did not receive any of the money obtained on it; and that it was tainted with usury.

Motion to set aside judgment. Before Judge Hamilton. City court of Floyd county. June 3, 1905. The Maryland Casualty Company brought its action for damages against William Lanham, on account of an alleged tort in breaking a plate-glass window with a stone. The plaintiff was an insurance company, one feature of the business of which was to insure against losses by breakage of plate glass.

<p>Appeal. Before Judge Bartlett. Haralson superior court. May 24, 1905.</p>

<p>Complaint. Before Judge Beagan. Monroe superior court. April 3, 1905.</p>

<p>Certiorari. Before Judge Beagan. Upson superior court. May 9, 1905.</p>

Indictment for murder. Before Judge Cann. Chatham superior court. November 17, 1905. Ben Battise was convicted of murder, with a recommendation of life imprisonment. He moved for a new trial, on the grounds, that the verdict was contrary to the evidence and to law, etc.; that during the trial the judge, in the presence of the jury, expressed his opinion as to what had been proved; and because of newly discovered evidence of an alibi. The motion was overruled, and he excepted.

<p>An order modifying a previous order passed on a motion for alimony, determining the custody of children pending the litigation, can not be reviewed on fast writ of error. „</p>

<p>1. As a general rule, directors can give a valid authorization of the making of a mortgage on the property of the corporation only when acting and consulting together as a board duly assembled. But where all of the shareholders of the corporation by their direct act or acquiescence invest the executive officer of the company with the powers and functions of the board of directors, as a continuous and permanent arrangement, there being no board of directors, or, if directors, they being entirely inactive, and the officer discharging all Its duties, a mortgage on the personal property of the corporation, made and executed in its behalf by such officer, to secure one who indorsed a note in order to secure a loan for it and who had to pay such loan, is valid as against the corporation, or a creditor claiming to have obtained a lien by virtue of the issuance and levy of a distress warrant after record of the mortgage, and with knowledge of it, for rent accruing long after the making of the mortgage, although it may not have been authorized by any formal vote of the shareholders or directors.</p> <p>2. There was sufficient evidence that no minute-books or stock-books were kept by the corporation, or, if any were kept, that they were lost, to authorize the admission of parol evidence in regard to the transactions of the company.</p> <p>3. Where a mortgage was given to secure a note, and it was provided in the instrument that the payee of the note had agreed “to renew” it from time to time, it was admissible to show that a note bearing a later date was a renewal of that first given.</p> <p>4. Immaterial errors will not require a reversal.</p> <p>5. Where an equitable petition was filed for the purpose of having a re- • ceiver appointed to administer certain property, and a person holding a chattel mortgage on it was made a party, and it was sought to enjoin him from proceeding to levy on the property and bring it to sale; and where, instead of objecting to a receivership, the mortgage creditor filed an application and obtained an order for the receiver to sell the property and bring the fund into court, preserving the rights of any lienholders in respect thereto, and afterwards filed an answer and intervention in which it was alleged that the amount for which the mortgaged property sold at the receiver’s sale was less than the indebtedness due him, and praying that such amount be paid to him, claiming that he was entitled to share pro rata on this indebtedness with the other creditors in the amount received from other sources, he thus recognized the necessity for the receivership and sought to share in the benefits arising therefrom, and became liable for a pro rata share of the cost and expenses of the litigation.</p>

Foreclosure of lien. Before Judge Cann. Chatham superior court. June' 30, 1905. The Neal-Millard Company, a corporation doing business as a materialman, proceeded to foreclose a lien on certain property belonging to E. L. Prince, for material furnished by it and used in building on the lot, which material was furnished upon the contract and employment of one Herb, a contractor employed by the owner and engaged in erecting the improvement. Herb made no defense.

Complaint. Before Judge Norwood. City court of Savannah. July 21, 1905. Simkins & Company, a firm composed of D. W. Simkins and James A. Doyle, brought suit against Zipperer for $294.10, alleged to be due as a balance on an open account, in which the defendant was charged with fifteen tons of fertilizer and credited with sixty-three bags of fertilizer returned.

<p>A general' allegation in a petition, that an act of the legislature is unconstitutional, without in any way specifying the particular provisions of the constitution with which it is claimed to conflict, is too vague and indefinite to raise any question for determination.</p>

<p>Action, for damages. Before Judge Hodges. City court of Macon. March 20, 1905.</p>

Appeal. Before Judge Hammond. Richmond superior court.. June 3, 1905. Johnston sned tbe Union Fraternal League of Boston, Massachusetts, in a justice’s court, for $100, on a “sick or benefit claim,”' under a benefit certificate issued to him by the defendant. From a judgment against the defendant, in the justice’s court, it appealed to the superior court, where a verdict was rendered against the defendant; and its motion for a new trial having been overruled, it excepted.

<p>Equitable petition. Before Judge Felton. Bibb superior court. April 18, 1905.</p>

<p>Action for damages. Before Judge Felton. Houston superior court. May 31, 1905.</p> <p>Raleigh Anderson, by his next friend Mrs. Lula Anderson, brought his suit for damages against the Fort Valley Knitting Mills, for personal injuries alleged to have been caused by the negligence of the defendant company.. The petition alleged as follows r Anderson was an infant of thirteen years, inexperienced and ignorant of the dangers incident to the operating of machinery, and these facts were well known to the defendant. On March I, 1904, he was in the employment of the defendant corporation, having been engaged to work in its knitting mill in Fort Valley, Georgia. The defendant company, knowing of the tender age and inexperience of the boy, put him to work at a ponderous and danger-otis machine used in its factory for pressing finished garments, and did so without informing him of the dangerous character of the machine, and without instructing him or directing him in the work so that he might do it with reasonable safety to himself. The machine was composed in part of a number of rollers or cylinders which were made to revolve rapidly about and in an opposite direction to a large cylinder, which was kept heated to a very high temperature. Garments were fed to this complicated machine, to be pressed by being drawn between the rollers. The plaintiff was assigned to the work of feeding this machine. The danger of it, though well known to the defendant, was latent and not obvious to a youth of tender years, and the defendant was negligent in putting the child to work at it. The petition further alleged, that, while •at work at this machine, the right hand of Raleigh Anderson was caught, and his hand and arm were drawn between the rollers and injured. Consequent pain and suffering and loss of capacity to labor and earn money were alleged. Thé defendant demurred to the petition. The judge overruled the demurrer, and the defendant tendered exceptions pendente lite. After evidence was offered for the* plaintiff, the defendant moved for a nonsuit, which was refused, and the defendant excepted pendente lite. A verdict was found in favor of the plaintiff for $500. A motion for a new trial was made by the defendant. In the first ground of the amended motion for a new trial it is contended that the court erred in charging the jury as follows: “The defendant'contends that he [the plaintiff] was not employed to operate the machine, that he was employed to take up from a table upon which the garments that had been ironed or smoothed out from the machine fell, and place them in boxes, counting and preparing them in that way for shipment, and that it was not part of his duty to place his hand upon •any part of that machine or on any of the work, or on any of the garments that came through .that machine, but that in doing so he did an act outside the line of his duty, an act which he had been warned not to do, and which he was of sufficient age and capacity to appreciate and realize he should not do; contending, therefore, that they are not guilty of any negligence whatever, the defendant contending that they warned him of the dangerous character of the machine; the defendant contending further that the machine was one that was heated by steam, that it was red hot, and he had suffi-eient mental capacity to know that it would be dangerous for him to put his hand upon that machine, because it would be dragged into the rollers, thereby rendering himself liable to injury, and that the necessity of putting his hand upon any of the work did not exist, and that there was no such neeesshy, but that, on the contrary, in that connection his only duty was, if the garment did not come through the machine, that he should call the attention of the ■operator feeding the machine to the fac.t, and that it was the duty •of the operator feeding the machine to stop the machine and get the garments out of it.” The motion was overruled and the defendant excepted.</p>

<p>Motion to set aside judgment. Before Judge Iiodges. City court of Macon. June 26, 1905.</p> <p>Monroe Phillips sued J. B. Phillips on a promissory note under seal. .The defendant filed an answer, to which the plaintiff demurred on the ground that it was not verified. The demurrer was filed twelve days after the regular call of the appearance docket, and two days before the adjournment of the appearance term. At the trial term, when the case came up for trial, the defendant offered an amendment properly verifying his plea; to which amendment counsel for tbe plaintiff objected. The court passed an order disallowing the amendment, sustaining the demurrer, and striking the answer, and then rendered judgment for the plaintiff. Thereupon the defendant made a motion “in- arrest and for the setting aside of each of said judgments.” From affidavits introduced at the hearing of this motion, it appeared that neither the defendant nor his counsel had knowledge of the filing of the demurrer until the trial term, when, on the case being called by the court for assignment for trial, counsel for the plaintiff announced that there was a demurrer in the case. The court sustained the motion and ordered that “said two judgments [be] set aside and vacated, and said original suit reinstated, and plaintiff’s said demurrer overruled and denied, and said answer of defendant reinstated and defendant’s amendment thereto . . allowed, on condition that the said defendant do pay all costs incurred by the filing of said amendment to his answer and by this motion.” The plaintiff excepted. His counsel contended that the verification of the answer could not be added at the second term, and cited Civil Code, §§5076, 5045, 5047,. 3701; 95 Ga. 805.</p>

Equitable petition. Before Judge Holden. Glascock superior court. June 1, 1905. J. J. Walden instituted a proceeding against John B. Williams, with a view to rescinding a.contract of sale respecting a tract of land in Jefferson county, upon which was located a mill-pond, a mill-house, and certain appurtenances.

<p>Certiorari. Before Judge Russell. Gwinnett superior court. March 6, 1905.</p>

<p>Certiorari. Before Judge Gober. Cherokee superior court. March 2, 1905.</p>

Complaint for land. Before Judge Gober. Cobb superior court.. March 14, 1905. Glore and others brought their action against Mrs. Scroggins,, to recover certain land.

The verdict being without evidence to support it, a new trial should have been granted. Complaint. Before Judge Gober. Cobb superior court. March 21, 1905.

Action on contract. Before Judge Gober. Fannin superior court. May 26, 1905. McKinney brought suit against the Atlanta, Knoxville and Northern Railway Company, and alleged: On September 13, 1886, Andrew W. Green conveyed to petitioner the exclusive right to the use and control of all the springs and branches upon a described lot of land in Fannin county, for the purpose of being used on an adjacent lot of land.

<p>Complaint. Before Judge Gober. Cherokee superior court. May 22, 1905.</p>

<p>Certiorari. Before Judge Gober. Fannin superior court. May 26, 1905.</p>

<p>Petition for mandamus. Before Judge Gober. Fannin superior court. May 30, 1905.</p>

<p>Where A enters into a contract with B, wherein he assumes the payment of certain notes made by B, maturing at different dates, the failure to pay any single note is a breach of the contract by A, and B may maintain a suit thereon without having paid the matured note. Such a contract is severable, and B would be limited in his recovery to the amount of the notes matured and unpaid by A at the time of the bringing of the suit.</p>

<p>Equitable petition. Before Judge Fite.- Catoosa superior court. February 9, 1905.</p> <p>The plaintiff filed her petition against the defendant, for the recovery of $100 due upon two promissory notes for $50 each, alleging as follows: She sold certain land to the defendant, taking from him the two notes sued upon, and giving to him a bond for title. After the first note fell due, she sued on the same in a justice’s court. The defendant filed a plea in that court (a copy of which she attaches), wherein he admitted the execution of the note, but denied his indebtedness thereon, because at the time of the sale of the land the plaintiff represented to him that she had a good and perfect title to the land, and upon that representation he executed the note, and, retying upon the representations of the plaintiff, and without knowledge that they were false, he had made improvements on the land so purchased and incurred expenses to the amount of $100; that as a matter of fact the plaintiff did not have good and perfect title to said land, and could not comply with her contract as expressed in the bond for title; and that the plaintiff was insolvent and unable to respond to the defendant in dam-ages, if he should pay off the note; the plea containing a prayer that the defendant have judgment against the plaintiff for the full amount of his expenses and his improvements put upon the land by reason of the fraudulent sale so made by the plaintiff to the defendant. The justice of the peace entertained this plea and gave judgment against the plaintiff for $100 principal, $12 interest, and costs of suit. She sued out a writ of certiorari to the superior court, which was sanctioned by the judge and filed, but, owing to a failure to serve the same, it became functus officio, and the judgment in question was never reviewed. The plaintiff further alleged, that the justice’s court had no jurisdiction over the ' subject-matter set forth in the plea filed by the defendant, and for that reason the judgment was void; and that the defendant was still in possession of the land and seeking to enforce the collection of the judgment obtained against her. She prayed, that the judgment obtained against her in the justice’s court be set aside; that the defendant be enjoined from enforcing the same; and that she have judgment against the defendant for the full amount of both notes, and for process. Before pleading to the merits, the defendant filed a demurrer on the grounds, that the petition showed upon its face that the plaintiff had had her day in court, and by reason of the justice’s court judgment all questions presented by her petition were res judicata; that the'plaintiff had a complete remedy at law by illegality; and that the judgment can not be attacked collaterally. The judge overruled that demurrer; and the defendant filed his answer, wherein he pleaded the judgment of the justice’s court as an adjudication upon all the questions presented by the petition, and again pleaded substantially the same defense and matters which were set forth in his plea before the justice of the peace, and sought in the superior court the same affirmative relief as for damages which were claimed by him in the justice’s court. Upon the trial of the issues thus presented, the evidence was un-contradicted and was substantially in accordance with the' several things pleaded by the respective parties, except that there was no evidence tending to show that the defendant was in possession of the premises. Such possession was alleged by the plaintiff and denied by the defendant, and there was no evidence on the point. There was further evidence, to the effect that when the land was first sold, the plaintiff admittedly did not have perfect title, and that she did not have perfect title at the time of the trial in the justice’s court, but that after the trial in the justice’s court and before the institution of the suit in the superior court she did perfect her title. There was no pretense that the defendant had ever surrendered the bond for title; but there was evidence on his part that, upon the failure of the plaintiff to cure the defect in the title, he moved away from the premises. The court directed a verdict for the plaintiff for the full amount of both notes, and upon the verdict entered a decree declaring the justice’s court judgment illegal and void, and setting the same aside, and awarding to the plaintiff the full amount of principal and interest specified in the verdict. The defendant by direct bill of exceptions assigns error upon the action of the court, in overruling the demurrer, in directing the verdict, and in granting the decree.</p>

<p>Action on insurance policy. Before Judge Fite. Whitfield superior court. April 12, 1905.</p> <p>A. R. Fox, as trustee, suing for the use of William W., Mary Jane, Jane E., Lillie Evaline, and John Anderson Fox, brought an action against the Queen Insurance Company of America, and alleged the following facts: On Márch 18, 1904, in consideration of two dollars and fifty cents, the defendant issued to A. E. Fox a policy of insurance in the sum of $200, insuring him against loss by fire on a certain dwelling in Dalton, Ga. The property was held by A. E. Fox in trust for his children, for whose use he sues; and it is alleged that the policy was taken out for the benefit of said children, although it was issued to A. E. Fox individually. The property was totally destroyed by fire, and, after proofs of loss were furnished, the defendant refused to pay any sum upon its policy. By amendment it was alleged, that Lillie Evaline Fox died before reaching the age of twent3r-one, leaving one minor child, and that “the remaining cestuis que trustent were of age when the policy was issued.” A copy of the policy was attached to the petition as an exhibit, and contained the following stipulation: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee-simple.” At the trial the petition as amended was dismissed, on motion, as setting forth no cause of action. The plaintiff excepted.</p>

<p>Complaint. Before Judge Fite. Whitfield superior court. April 13, 1905.</p>

Complaint. Before Judge Fite. Gordon superior court. April 10, 1905. Slaton, as indorsee of certain promissory notes amounting to eighty dollars, given by J. S. Fowler to the Cable Company for the purchase-money of an organ, brought suit against the maker, in a justice’s court. The notes were under seal. The case was carried to the superior court by appeal.

<p>When this ease was before this court the first time (121 Ga. 459) it was; held that the original petition was “subject to demurrer,” but that the defect was cured by the amendments which had been tendered and allowed. Upon the trial of the cause, however, as the record discloses, there was no evidence to support the material and essential allegations in the amendments. It was, therefore, not error for the court to sustain a motion to nonsuit the case.</p>

<p>Action for damages. Before Judge Fite. Gordon superior court. July 29, 1905.</p> <p>Henry Clariday brought suit against the Southern Railway Company, and alleged: He purchased a ticket over the defendant’s line of road from Rome to Qostanaula, and boarded a passenger-train for that point. As the train neared Oostanaula, the porter approached plaintiff, lamp in hand, and said, “Now follow me.” Plaintiff followed the porter out upon the platform, and down upon the bottom step of the car. The train had slowed up, and when the porter said, “Now step off,” plaintiff attempted to alight. Just as he did so, the porter waved his lamp at the engineer in a signal to go ahead, and the train was started with a sudden jerk, which threw the plaintiff to the ground, inflicting permanent injuries. In his testimony he detailed the injuries he received. The injury occurred two years before the trial, at the date of which he was sixty-seven or sixty-eight years old. His injuries were in the back, ankle, and leg. He testified that his back still hurt him, his ankle at times swelled so that he could not walk, and his leg hurt him all the time. He had been earning fifty cents a dajr. and his board, prior to the injury. Since that time he could not work more than an hour or two at a time. He ivas in bed three weeks immediately after the injury. The jury found in his favor $350. The defendant moved for a new trial upon the general grounds, and assigned error upon certain portions of the charge of the court in reference to computing the damages if the jury found that the plaintiff had been permanently injured, contending that there was nó evidence to show permanent injuries, and nothing to justify such a charge. The motion ivas overruled, and the defendant excepted.</p>

Eviction. Before Judge Henry. Floyd superior court. March 81, 1905. Tbe plaintiffs sued out a warrant to dispossess the defendant from the possession of a certain storehouse in Rome. A counter-affidavit and bond were given by the defendant.

Complaint. Before Judge Henry. Floyd superior court. March 21, 1905. This was a suit upon a promissory note, brought by the Bank of LaFayette against the executors of Mrs. Helen A. Nevin, the plaintiff alleging that in the course of its business it had discounted the note for C. Bowell, and was'the holder and owner thereof.

<p>1. When in an action for damages against the hirer of a horse, buggy, and harness, brought by the owner of the same, the petition alleges the hiring, and that the defendant, through his carelessness and negligence, “suffered said animal to run away and kill lierself, and in so doing said buggy was destroyed and the harness injured, to the damage of petitioner in” a named sum, it is not subject to demurrer upon the ground that it states no cause of action.</p> <p>2. The allegation in the petition in the present case, that the horse, while attached to the buggy, was hitched by the defendant to a picket fence, and was not securely fastened, was subject to a special demurrer which called for a more specific allegation as to negligence in the manner in which the animal was fastened to the fence. This is true notwithstanding the allegation that the fence, “being composed of upright sharp-pointed pickets, was [a] dangerous, unsafe, and improper place” at which to hitch the horse.</p> <p>3. The allegation that this fence “was [a] dangerous, unsafe, and improper place” at which to hitch the animal, was too general to withstand a special demurrer calling for the particulars in which the place was dangerous, unsafe, and improper for such purpose.</p> <p>4. The evidence was not sufficient to support the verdict, and for this reason a new trial should have been granted.</p>

<p>Appeal. Before Judge Bartlett. Haralson superior court. January 25, 1905.</p> <p>A petition to the court of ordinary, against W. A. Floyd, to set aside an order of that court discharging him as administrator of the estate of J. S. Floyd, was filed by Mrs. L. V. Summerlin and C. E. Chambers. The superior court, on appeal, sustained a motion to dismiss the case, on the grounds, that the petition did not set out a cause of action, and that “the action was barred.” The plaintiffs excepted.</p> <p>The petition was filed in 1903. It alleges that the order in question was passed in 1892. The order recites, that a citation for discharge has been duly issued and published, that it appears from an examination of the proceedings of the administration that the administrator has fully and faithfully administered the estate and is legally entitled to a discharge, and that no objection is offered to his discharge. The petition alleges, that the plaintiffs are heirs at law of J. S.' Floyd; that the defendant was appointed administrator of his estate in 1888; that the estate was worth at least $3,000, and that the administrator has not properly administered it; that there were eleven heirs, and he paid only $42 to each, except plaintiff Chambers, who did not receive any amount; that Chambers at that time resided in the State of Alabama, and had no notice of the administration, “there never being, in • . . petitioner’s opinion, any effort made by said administrator to locate” him; that the administrator assured plaintiff, Mrs. Summerlin, that if she would remain quiet and not say anything at all, there would be at least two or three hundred dollars to her share, and, he being her brother, she trusted to his honesty, and did as she was requested by him to do, thinking that she would receive the amount that he said was due her; that she knew nothing about the estate “until a few weeks ago,” when she had the matter investigated, and learned that the estate amounted to about three thousand dollars, and perhaps more, and that the defendant had failed to administer upon a piece of land worth at least a thousand dollars, and upon a stock of goods worth at least fifteen hundred dollars, which belonged to-the estate; that the administrator and his brother, Frank Floyd,, had possession of all the property, including the money, land deeds,, and the stock of goods belonging to the estate, and that they studiously avoided letting the plaintiffs know anything about the actual status of the estate; that at the time the order discharging the administrator was passed, he represented that he had' faithfully discharged his trust and fully administered the estate, but that this, representation was fraudulent, and his conduct from the time said J. S. Floyd died until the present time has been misleading and fraudulent; that his failure to pay over to plaintiff Chambers his-part of the estate is fraud; that in plaintiffs’ opinion he has appropriated the estate to his own use; that on account of his fraudulent conduct his discharge as administrator was void; and that it was impossible for the plaintiffs to have learned of the exact condition of the estate without a thorough investigation, which they were not able to make; that they could not, by reasonable diligence,, have discovered the fraud; that “said Chambers not being in the-State and said Mrs. Summerlin being }roung at the time of her-father’s death ánd at the time of said administration and the discharge of said administrator, or pretended discharge, they did not. know all the facts in regard to the land and said stock of goods,, and they knew of no way to learn of the truth of the same, and Mrs. Summerlin fully believed all the property would be faithfully-administered, as before set out, and said Chambers knew nothing of said administration or the discharge of said administrator.”</p> <p>Cited by counsel: Civil Code, §§3510-11, 3764; Ga. B. 60/449; 61/356; 64/497; 71/95; 74/179; 77/483; 87/268; 104/608. See-98/791.</p>

Appeal. Before Judge Bartlett. Haralson superior court. January 19, 1905. An execution issued from a justice’s court in favor of the Marietta Guano Company against J. H. Head. It was levied on certain personal property, and a claim was interposed by W. H. Head. The case was returned to the justice’s court for trial, and a judgment rendered finding the property not subject.

<p>Under tlxe facts alleged in the plaintiff’s petition, he entered the premises of the defendant railway company as a volunteer and mere licensee, and the injuries he received were attributable, not to an omission by the company to perform any duty which it owed to him as such, but to his own voluntary act.</p>

<p>Levy and claim. Before Judge Bartlett. Haralson superior court. July 17, 1905.</p> <p>An alias fi. fa. purporting to have been issued by the clerk of the superior court of Haralson county on January 25, 1893, in lieu of a lost original which had been issued on a judgment in favor of Grow and others against Mrs. McNeill and transferred to Biggers, was levied on certain property, and a claim was interposed by Winkles. On the trial, when the execution was offered in evidence, objection was made to it on the ground that the name of the clerk of the superior court was signed to it by Biggers who was at that time acting as deputy clerk. It purported on its face to have been signed by the clerk. The court heard the evidence of Biggers in connection with this objection. He testified, in substance, that he worked in the office of the clerk of the superior court as the deputy; that it was his business to issue these fi. fas. and papers; that he issued most of the fi. fas.; that the clerk instructed him to do so and gave him authority to sign his (the clerk’s) name; and that he signed Beall’s (the clerk’s) name to this one. He further testified: “I don’t remember that he pointed out this one specially to me, telling me specially to sign his name to this one. I don’t remember about his being in the office at this time. I don’t remember that he was standing right there. It was the practice for me to issue them, and sign his name to them. I was deputy clerk; he assigned me that part of the work to do. I usually kept the minutes, — was another thing he assigned me to do.” The court rejected the evidence, and. no further evidence being offered, dismissed the levy. The plaintiff excepted.</p>

<p>Upon the petition of the wife against the husband, the pleadings were sufficient, the evidence authorized the finding, and the judgment allowing temporary alimony to be expended solely for the children will not be disturbed.</p>

<p>Persons who as parties to a motion for a new trial are interested in sustaining the judgment complained of therein, are essential parties to a hill of exceptions assigning error upon the overruling of such motion; and if such parties are not duly served, the writ of error will he dismissed.</p>

Complaint. Before Judge Harwell. City court of LaGrange. March 27, 1905. Mrs. Scott brought suit in the city court against Hughes and his wife, alleging that Mrs. Hughes as principal, and Hughes as security, were indebted to her in the sum of $250 principal, “for money had and received, as shown by a deed or contract” attached to the petition. The plaintiff prayed for a general judgment, and for a special lien on the property described in the paper above referred to.

<p>Trover. Before Judge Reagan. Henry superior court. April' 86, 1905.</p>

<p>Certiorari. Before Judge Freeman. Troup superior court. June 8, 1905.</p>

Action for damages. Before Judge Reagan. Henry superior court. August 7, 1905. , W. J. Combs brought suit against the Southern Railway Company, and alleged: On September 5, 1900, .there existed near petitioner’s residence, in Henry county, a public-road crossing, where the Peeksville and Hampton public road, legally recognized as a public road for thirty years, more or less, crossed the track of the defendant at the same grade, and was recognized by it as a public road.

Injunction. Before Judge Beagan. Monroe superior court. October 10, 1905. Tbe Towaliga Falls Power Company is a corporation which owns and controls the water-power at High Falls, on the Towaliga river, in Monroe county, and lias there constructed its plant for generating electricity by water-power, to be used for lighting towns and cities and supplying motive power to street-car lines and serving the public generally.

<p>Petition,for injunction. Before Judge Parker. Clinch superior court. October 21, 1905.</p>

<p>1. Where suit was brought for a personal injury alleged to have occurred while the plaintiff was crossing the tracks of a railway at a public-street crossing in a city in South Carolina, and it was alleged that the employees of the railroad company were negligent in the manner in which they caused an engine and ear to approach and pass over such crossing at an unsafe rate of speed; without keeping a proper lookout, and without giving, any signal or warning of approach, it was error to so charge the jury as to leave them to infer that, under such a declaration, a recovery might be had if the injury did not occur at or near a public crossing but in a railroad switching-yard, although the plaintiff may have been a trespasser there, if the defendant’s employees could have discovered his presence by the use of ordinary care; or that a recovery might be had if the plaintiff, when injured, was swinging upon a switch-engine of the defendant in its switching-yard, provided the defendant’s employees could have discovered him by the use of ordinary care.</p> <p>2. As a general rule, the agents oí a railroad company operating one of its trains are not required to anticipate the presence of a trespasser upon its tracks or property, and the duty of using ordinary care and diligence does not arise until his presence there becomes known. This general rule applies as well to children as to grown persons.</p> <p>3. In determining what ordinary care requires in reference to children, the fact of their apparent size, age, and inability to protect themselves, is proper for consideration by the jury.</p> <p>4. As to a child of tender years, no presumption arises that it will appreciate danger and will act with the discretion of an adult in getting out of the way of an approaching train, and persons in charge of a railway train are not authorized to act on such a presumption.</p> <p>5. The general rule, that as to a trespasser upon a railway track the duty of observing ordinary care and diligence for his protection does not devolve upon the company’s agents in charge of a train until his presence upon its track becomes known to them, does.not relieve the company under all circumstances from anticipating the presence of a trespasser upon its track and from taking proper precautions to prevent injury to him. Where the circumstances are such that the employees of the company in charge of one of its trains are bound, on a given occasion, to anticipate that persons may be upon the trdck at a certain place, they are under a duty to take such' precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence.</p>

Exceptions to auditor’s report. Before Judge Kimsey. Haber-sham superior court. March 17, 1905. S. J. Stubbs and F. B. Stubbs brought their equitable petition against J. C. McConnell, alleging in substance as follows: On March 17, 1902, plaintiffs entered into an agreement with McConnell, forming a limited partnership for the manufacture and sale of lace leather.

<p>Complaint. Before Judge Fite. Oatoosa superior court. February 9, 1905.</p>

Action for damages. Before Judge Hamilton. City court of Floyd county. March 8, 1905.

<p>Motion for new trial. Before Judge Henry. Floyd superior court. March 21, 1905.</p>

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

<p>Action for damages. Before Judge Hamilton. City court of Floyd county. May 10, 1905.</p>

<p>Distress warrant. Before Judge Bartlett. Douglas superior court. April 17, 1905.</p>

<p>1. The following proposition from one engaged, in the cotton business was submitted by letter to a cotton buyer and accepted by the latter: “We will pay you 25 cts. a bale commission, give you a basis on which to buy and on which we will take the cotton bought on that day, subject to change as the market fluctuates. Your cotton to be received here, and returns sent you for it as soon as possible after we receive it. We are going to give you a good basis. If you buy your cotton with any judgment, with the 25c. commission you ought to make a little money.” Held, that this arrangement did not create the relation of principal and ^ agent relatively to the business transacted in virtue of the contract.</p> <p>2. The terms “basis” and “returns,” used in the foregoing contract, are technical terms of trade, and testimony of experts in the cotton business was admissible to explain their meaning.</p> <p>3. Where evidence is admitted without objection, and a motion is subsequently made to exclude it, tile correctness of tile ruling on the motion can not be considered when no error is assigned thereon.</p>

Equitable petition. Before Judge Freeman. Troup superior court. May term, 1905. Tom Dix, for himself and as next friend for three minors, and Bonnie Dix filed their equitable petition against Mary J. Bigham, executrix, and others, seeking to recover certain land and mesne profits.

Ejectment. Before Judge Freeman. Troup superior court. June 24, 1905. Mrs. Lula T. Mullins died possessed of certain property in Troup county, and W. G-. Park was appointed her administrator. The administrator applied to the court of ordinary for leave to sell the land for the purpose of distribution among the heirs, notice of such application was published as required by law, and the order was granted.

<p>Under the Penal Code, § 1097, tie fund arising from tie liire of misdemeanor convicts siall be first applied to tie payment of tie fees of tie officers of court. Tiis application is to be made by first taking from the hire the costs in tie particular cases, including the fees of witnesses; then discharging the orders of tie officers of court for insolvent costs in other cases, and paying into the county treasury whatever balance may remain.</p>