Volume 125 — Georgia Reports

<p>Petition for certiorari. Before Judge Mitchell. Thomas superior court. December 26, 1905.</p>

<p>1. After a jury has been impaneled, and before the prosecuting counsel submits any of his evidence in the ease, if it is discovered that a member of the jury is disqualified, he may be set aside and a new jury impaneled. The fact that the order recites, that, upon the disqualification of the juror being ascertained, the solicitor moved that a mistrial be declared, and the defendant’s counsel objected; that the motion was withdrawn, and the solicitor offered to proceed to trial before the jury as impaneled, or before the remaining qualified jurors; that the defendant’s counsel objected to both these motions; and that the solicitor renewed his former motion to have a mistrial declared, which was sustained, does not alter the ruling set forth above.</p> <p>S3. It appearing that after a mistrial was declared the case was continued to the next term, and there being nothing to show that there wepe other jurors present, or that there was not sufficient ground for such continuance, error will not be presumed on that account.</p> <p>3. After another jury had been impaneled, a plea of former jeopardy, which set forth the occurrence as' stated in the preceding notes, was properly stricken.</p>

<p>Indictment for assault with intent to murder. Before Judge Kimsey. Lumpkin superior court. November 18, 1905.</p>

<p>Accusation of larceny. Before Judge Park. City court of Sylvester. January 1, 1906.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. January 8, 1906.</p>

<p>Accusation of selling liquor. Before Judge O’Steen. City court of Douglas. December 7, 1905.</p>

<p>Accusation of selling liquor. Before Judge Park. City court of Sylvester. January 1, 1906.</p> <p>A verdict of guilty having been rendered against the accused, he made a motion for a new trial, which, was overruled, and he excepted. The motion was on the general grounds, and on various special grounds, among which was the following: “When the evidence was in, and during the argument of the solicitor of the City5" court, he used the following language: ‘Gentlemen of the jury, the defendant has made no statement in this case; and while this is not to be taken against him, his silence being a plea of not guilty, yet when we put up witnesses on the part of the State who testify positively to facts that make him guilty of the offense charged, and shows that he could explain, deny, or disprove the facts testified to if they were not true, his failure to do so is a circumstance that may be considered by the jury in determining whether he is guilty.’ ‘ There he sits, gentlemen of the jury, and, in the face of this testimony, has not offered to make any explanation whatever.’ Counsel for defendant moved the court that a mistrial be declared on account of this improper argument of State’s counsel; that the fact that defendant had made no statement should not be commented on at all by State’s counsel. The court overruled the motion to declare a mistrial, and stated that he would give the jury proper instructions in his charge; and State’s counsel then remarked to the jury that the silence of defendant was not to be taken against him. . . The overruling of the motion of defendant to declare a mistrial is here assigned as error.” In the charge of the court to the jury, they were instructed that the accused “has a right to make a statement or to remain silent. The fact that he does not make a statement is not to be taken either for or against him; it is merely a plea of not guilty.”</p>

<p>Accusation of adultery. Before Judge Park. City court of Sylvester. January 1, 1906.</p>

Indictment for assault with intent to murder. Before Judge Hammond. Richmond superior court. December 18, 1905. Clara Brown was convicted on an indictment under the Penal Code, §81, charging her with assault with intent to murder Maude Jones, a woman pregnant with a child, by using upon her an instrument with intent thereby to destroy the child.

<p>Petition for certiorari. Before Judge Russell, Gwinnett superior court. December 26, 1905.</p>

<p>1. The charge of the court with respect to the prisoner’s statement did not leave the jury free to act arbitrarily in attaching to it such credence- and weight as they saw fit.</p> <p>2. A malicious intent to kill is not, as matter of law, to be presumed whenever one person shoots at another with a gun, unless the shooting be neither in self-defense nor under circumstances of justification.</p> <p>(а) In view of the undisputed facts of this particular case, the charge of the court on this subject, while not correct in the abstract, was not harmful to the accused.</p> <p>(б) Upon a prosecution for assault with intent to murder, proof that the accused shot at and wounded another without legal excuse will raise a presumption of law that the shooting was maliciously done; but a. specific intent to kill is never to be presumed where death does not ensue, and must be shown by circumstances authorizing the jury to infer, as matter of fact, that the accused had that intent.</p> <p>3. It was entirely proper for the court to inform the jury, regardless of the contentions of the accused, that if the shooting was without excuse under the law, “it would be no defense, nor would it mitigate the crime,” if the person shot by the accused fired back at him.</p> <p>4. The instructions given the jury with reference to the defense of alibi were not objectionable because the place at which the shooting occurred, was referred to by the court as “the scene of the crime,” instead of' being designated “the scene of the offense.”</p> <p>5. A general complaint in a motion for a new trial that the entire charge of the court touching certain vital issues was not clear, accurate, and. impartial, but was more favorable to the State than to the accused, does not present any sufficiently specific assignment of error.</p>

<p>Accusation of vagrancy. Before Judge Hodges. City court of Macon. January 16, 1906.</p>

<p>Indictment for carrying concealed weapon. Before Judge Davis. City court of Lexington. January 1, 1906.</p> <p>Among the grounds of the motion for a new trial, the overruling of which was assigned as error, were the following: “The court, after charging the jury the law of alibi as contained in the-case [code?], erred in charging the jury as follows: ‘An alibi, to be established in this case, the defendant would have to show-that he was not at the place on the day as alleged in the indictment, and at all times within the statute of limitations, at any date on which the State relied for conviction/ ” “The court erred in charging as follows : ‘The. defendant has made a statement. The law allows him to make any statement he may chqose. You may believe it in whole or in part. You may believe it in preference to the sworn testimony in the case, but you must remember that it is not under the sanction of an oath/ ”</p>

<p>Accusation of gaming. Before Judge Davis. City court of Lexington. January 2, 1906. „</p>

Certiorari. Before Judge Pendleton. Fulton superior court. December 18, .1905.

<p>Before the sayings of a third person, made in the presence of one who is subsequently charged with the commission of a criminal offense, should be admitted in evidence against Mm, there should be proof affirmatively disclosing that the circumstances were such as to call upon the accused to make some response to what was said in his presence. The eircumstances must require an answer or denial, or other conduct, before silence will amount to an implied admission.</p>

<p>Accusation of larceny. Before Judge Park. City court of Sylvester. January 22, 1906.</p> <p>Jim Mitchell was convicted on an accusation charging him and Jack Forrester with the larceny of a buggy cushion, the property of Sam Baker. From the evidence it appeared, that Baker went to town in his buggy and left the buggy in order to attend court, and, when he returned to the buggy that evening, the cushion of the buggy seat was missing. The cushion was found the next day, wrapped in oil-clojdi, under the seat of Jim Mitchell’s buggy, in a wagon-yard of the town. Mitchell, when arrested, said that he did not know how the cushion came to be in his buggy. There was evidence that it was usual to put buggy cushions under the seats of buggies. Mitchell, in his statement to the jury, said, that in the evening preceding the day on which the cushion was found under the seat, “Uncle Jack,” who had been employed by him, was sent by him to hitch the horse to his buggy; that they started off in the buggy, and he found that he had the wrong cushion; that he-, went back to court the next morning, and, it being late, he hurried to the court-house, after having “taken the cushion and laid it up in the seat,” intending to search other buggies there at dinner time, and find his own if it was there; that this cushion was too narrow for his buggy, it being “an eighteen-inch cushion,” and his buggy-being “a twenty-four inch;” that the cushion was not wrapped up; if it was, some one else did that; and that he- did not find his oyn cushion. Forrester, who was tried and convicted jointly with Mitchell, stated to the jury that all he knew about the cushion was. that as they were going home “that night” in the buggy, “Jim” spoke to him “about the buggy cushion being too short, or something.”</p> <p>The motion for a new trial, the overruling of which was assigned as error, contained, besides the general grounds, the following: “The-court erred in his charge to the jury in'regard to the defendant’s statement, when he gave the following charge: ‘Each has a right to make a statement in his own behalf, not under oath, and this statement you are to give such weight and credit as you see proper. You can believe it, if you think it is more reasonable, in preference to the sworn testimony, and you can believe part of it or you can disbelieve part of it, or you can believe it altogether or disbelieve it altogether.’ The court should have given in charge to the jury the law in regard to the defendant’s statement as contained in section 1010 of the Criminal Code.” “The court erred in the following charge to the jury, inasmuch as both defendants were being tried together: ‘If you believe, from the evidence, that these defendants were together at the time the cushion was taken, if it was taken, and you believe that one was guilty of taking it and the other had a knowledge of it, and assisted and abetted it, there being no accessories in misdemeanor eases, it would be your duty to find both guilty if you find such to be the case beyond a reasonable doubt.’ The vice in this charge is that the court in effect told the jury that if Jim Mitchell knew that Jack Forrester stole the buggy cushion, he would be guilty. The above excerpt is not an appropriate charge under the facts of the case.”</p>

<p>Accusation of selling liquor. Before Judge Clark. City court of Eorsyth. January 24, 1906.</p>

<p>Accusation of selling liquor. Before Judge Hammond. City court of Griffin. December 26, 1905.</p>

<p>Accusatio'n of selling liquor. . Before Judge Hammond. City court of Griffin. December 26, 1905.</p>

<p>Accusation of adultery and fornication. Before Judge Peeples. ■City court of Nashville. January 24, 1906.</p>

<p>The evidence being insufficient to support the verdict, the court erred in refusing to grant a new trial.</p>

<p>Accusation of selling liquor. Before Judge Hammond. City ■court of Griffin. December 26, 1905.</p>

Indictment for robbery. Before Judge Mitchell. Lowndes superior court. January 5, 1906. The indictment contained two counts, one charging Frank Moran with wrongfully, fraudulently, and violently taking by force a described pocket-book, and the other charging him with suddenly snatching and taking away the pocket-book.

<p>Indictment for robbery. Before Judge Mitchell. Lowndes superior court. January 5, 1906.</p>

<p>Indictment for robbery.. Before Judge Mitcliell. .Lowndes superior court. January 6, 1906.</p>

<p>Indictment for robbery. Before Judge Mitcbell. Lowndes supe* rior court. January 5, 1906.</p>

<p>Indictment for burglary. Before Judge Roan. Fulton superior court. January 13, 1906. .</p>

Complaint. Before Judge Gober. Cherokee superior court. May 22, 1905. The Johnson County Savings Bank sued Boberts & McClure on a promissory note made by the defendants, dated December 3, 1901, due twelve months after date, payable to the order of the Equitable Manufacturing Company, and indorsed by that company to the plaintiff.

<p>Indictment for murder." Before Judge Felton. Houston superior court. January 11, 1906.</p>

<p>Appeal. Before Judge Henry. Floyd superior court. January 27, 1905.</p>

<p>Amendment of record. Before Judge Martin. Wilcox superior court. December 11, 1905.</p> <p>At the September adjourned term of the superior court, 1905, the following order was passed: (after stating the case) “Whereas, at the March term, 1905, of said court, the defendant, John W. Tyler, was convicted, upon the aforesaid indictment, for a misdemeanor, and thereupon, at said term of the court, the court pronounced sentence orally, in open court, sentencing the defendant to pay a fine of seventy-five dollars ($75.00), and that in default thereof that said defendant work in the chain-gang on the public works for the full term of nine months; and whereas, in writing out said sentence and in entering the same upon the minutes of the court, the clerk omitted the word ‘nine,’ where it occurred in said sentence when orally pronounced in open court as aforesaid: wherefore it is ordered and adjudged by the court that said sentence and the minutes of said court be corrected by writing in said sentence the word ‘nine’ immediately after the words ‘public works, for the full term of,’ and before the word ‘months,’ so as to make the sentence conform to the sentence as orally pronounced upon said defendant by the court, as aforesaid. It is ordered that this order be entered upon the minutes, and that the clerk of this court correct said minutes and said sentence as herein directed.” To this ■order Tyler excepted.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. January 6, 1906.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. January 27, 1906.</p>

<p>Indictment for burglary. Before Judge Hammond. Richmond superior court. December 18, 1905.</p>

<p>Indictment for shooting at another. Before Judge Hammond. Richmond superior court. December 18, 1905.</p>

<p>^Evidence which tends to show that the accused has committed a crime wholly independent of the offense for. which he is on triad is irrelevant, and upon proper objection to such evidence, urged at the time it is offered, it should be excluded.</p>

<p>1. It is not the name, But the description of the crime, which characterizes the offense charged.</p> <p>2. A man who marries the mother of an illegitimate daughter becomes the stepfather of such child, within the meaning of the Penal Code, § 380, and of the Civil Code,' §2413.</p> <p>3. In the trial of one charged with incest, evidence tending to establish acts of incest at times other than and prior to that relied on for a conviction is admissible as throwing light upon the relations of the parties toward each other.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. January 17, 1906.</p> <p>Henry Banks and Cornelius Lowe were jointly indicted for the murder of Will Russell. They were tried separately. On the trial of Lowe the corpus delicti was proved, and -it was shown that the defendant made a statement or confession orally, and that after-wards he repeated substantially the same thing in the presence of a stenographer, who took down the statement stenographically and subsequently transcribed it in longhand. The confession was elaborate and rambling, but the substance of it was, that Banks had entered into an arrangement with the defendant to accomplish the death of Will Russell; that Banks was to do the actual killing, while Lowe was to keep watch; that they went to the place Where Russell was at work, and that this arrangement was carried out, Banks doing the actual killing, using both a pistol and an axe,while Lowe remained near by, keeping watch; that Banks took from the body of the murdered man a pistol and .other property, and subsequently gave the pistol to Lowe for his part in the transaction. There was evidence showing that he attempted to pawn the pistol; that the axe used was found where he said it was thrown, and that Banks pawned a pistol, and his mother afterwards had the watch which had belonged to the deceased. After a verdict of conviction the defendant moved for a new trial, which was refused, and he excepted.</p>

Action for damages. Before Judge Hodges. City court of Macon. December 31, 1904.

<p>Accusation of assault. Before Judge Hollingsworth. City court of Fayetteville. January 15, 1906.</p>

<p>1. In an action for breach of promise of marriage, allegations and proof of circumstances antecedent to the promise of marriage, which tend to show the relations of the parties and the state of feeling between them at the time of the alleged promise, are permissible.</p> <p>2. A promise by the defendant to marry the plaintiff just as soon as the defendant’s mother, who was ill, got well, was not a conditional promise of marriage, but an absolute promise to marry at an uncertain time in the future. And if, while the mother was still ill, the defendant told the plaintiff that he did not intend to marry her, the plaintiff could treat such renunciation of the contract by him as a breach of the same, and bring an action for such breach, without waiting for the time for the performance of the contract to arrive.</p> <p>3. Seduction of the plaintiff by the defendant, under promise of marriage, may be alleged and proved in aggravation of the damages sustained by the breach of the contract to marry.</p>

Complaint. Before Judge Henry. Chattooga superior court. March 29, 1905. On July 22, 1901, the plaintiff filed suit against W. L. Kinsey ■and W. L. Thomas, as principal debtors, and Thomas Holcomb as security. W. L. Thomas was personally served, August 19, 1901, but there was no return as to service on the other two.

<p>Garnishment — appeal. Before Judge Wright. Floyd superior court. July 14, 1905.</p>

<p>Equitable petition. Before Judge Bartlett. Haralson superior court. June 19, 1905.</p>

<p>A judgment sustaining a general demurrer to a petition in an action at law brought in the superior court may be pleaded in bar to a petition praying for equitable relief, subsequently brought by the same plaintiff against the same defendant, alleging substantially the same facts as were set out in the petition in the former suit.</p>

<p>Action for damages. Before Judge Lewis. Baldwin superior court. April 3, 1905.</p>

<p>Action for damages. Before Judge Burch. City court of Dublin. April 24, 1905.</p>

<p>Habeas corpus. Before Judge Lewis. Baldwin superior court. October 23, 1905.</p> <p>Hnder regular proceedings instituted before and conducted by the ordinary of Henry county, for the purpose of inquiring into the sanity of I. R. Pair, he was adjudged to be a fit person to be committed to the State Sanitarium. An appeal'to a jury in the superior court was entered in his name on July 14, 1905. Pending appeal Pair was sent-, to and confined in the State Sanitarium, of which institution Dr. T. O. Powell is the superintendent. While Pair was being thus restrained of his liberty, a petition for habeas, corpus, in the name of Frank Eeagan, “attorney for I. E. Pair,”' was presented to the judge of the superior court, who passed an order directing that the writ prayed for should issue against Dr.. Powell, in his capacity as superintendent of the State Sanitarium. In this petition, which recited the facts under which Pair had been restrained of his liberty, the applicant alleged that the detention of Pair pending his appeal was illegal, inasmuch as the entering of the appeal suspended the verdict and judgment rendered in the proceeding before the ordinary. The respondent filed no answer to the writ, but produced Pair and brought him before the superior court on the day set for the hearing. The facts stated in the petition for habeas corpus not being controverted, the applicant introduced no evidence. other than a certified copy of the proceedings had before the ordinary, and the appeal which had been entered. No question concerning the right of the applicant, as attorney for I. E. Pair, to apply for the writ appears to have been raised. The presiding judge passed upon the merits of the case as ¡presented by the petition and evidence submitted, deciding against the contention of the applicant that the entering of the appeal suspended the judgment of the ordinary, and for that reason Pair should be discharged pending the appeal. To this decision, as well as to the order of the court remanding Pair to the custody of the respondent, exception is .taken.</p>

<p>Equitable petition. Before Judge Little.- Muscogee superior court. July 11, 1905.</p>

Equitable petition. Before Judge Littlejohn. Macon superior court. May 20, 1905. This was an equitable proceeding, one of the purposes of which was to reform a written contract in the form of a rent note given by the defendant to the plaintiff. The contention of the plaintiff was, that, under the agreement of rental, the defendant was to have the privilege of cultivating such lands on what was known as the C. S'.

<p>Complaint. Before Judge Littlejohn. Sumter superior court. December 28, 1904.</p>

<p>Indictment for assault with intent to murder. Before Judge Martin. Dodge superior court. December 29, 1905.</p>

<p>Receiver. Before Judge Roan. Newton superior court. November 29, 1905.</p>

<p>Complaint. Before Judge Hodges. City court of Macon. June 19, 1905.</p>

<p>Habeas corpus. Before Judge Proffitt. City court of Elberton. January 20, 1906.</p> <p>Lit Willingham brought habeas-eorpus proceedings against Mattox, to secure the custody and control of Viola Willingham, a minor, alleging that he (Willingham)’ is the child’s father. It appears from the evidence that the child was born several years after the plaintiff and his wife (Viola’s mother) had separated, and a short, time after he had filed his libel for divorce. The evidence is conflicting on nearly all points. The plaintiff testified, that he is the-child’s father; that although he was not living with the mother-for some time previous to the child’s birth, he had access to her and begat the child; that he had given the mother money and provisions, with which to support the child, and had only allowed the mother to keep the child as an accommodation to her. The defendant introduced testimony to the effect, that the plaintiff had denied on several occasions that he was the father of the child; and that he had relinquished all claim he might have to it, and abandoned it. The child, who is fourteen years old, testified that the plaintiff had never given her a cent, except when her mother died, when he gave her twenty-five cents to help defray the funeral expenses; and that she prefers to remain where she is, in the custody of Mattox,, than to live with the plaintiff. The defendant swore that the-child's mother, just prior to her death, consigned the child into his keeping until she shall become of age or marry. There was testimony to the effect that each claimant was a,fit and proper person to-have the control of the child. The judge awarded her to the custody of Mattox, and Willingham excepted.</p>

<p>1. “In order for tlie exclusion of oral testimony to be considered as a, ground for a new trial, it'.must appear that a pertinent question was-asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have been benefited, the complaining party.”</p> <p>2. Grounds of a motion for new trial complaining of the admission of testimony over objection should show what objection was urged at the time of the admission of the evidence, or they will not be considered.</p> <p>3. Exceptions that the verdict is contrary to the charge, or to a specified portion of it, are superfluous, such objections being covered by the general ground that the verdict is contrary to law.</p> <p>4. The testimony introduced by the plaintiffs authorized a finding by the jury in their favor, and there was no error in refusing to grant a non-suit.</p> <p>5. Grounds of a motion for a new trial not urged nor referred to in the brief of counsel for the plaintiff in error will be treated as abandoned.</p>

<p>Complaint. Before Judge Lewis. Jasper superior court. Marcli 28, 1905.</p>

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

<p>Action on contract. Before Judge Burch. City court of Dublin. April 20, 1905.</p>

<p>Action for money had and received. Before Judge Burch. City court of Dublin. April 27, 1905.</p>

<p>Petition for injunction. Before Judge Lewis. Laurens superior court. August 1,. 1906.</p>

Exceptions to auditor’s report. Before Judge Lewis. Laurens superior court. July 26, 1905. When this case was before this court on a former occasion (116 Ga. 206), it was held that the petition set forth a cause of action, as against a general demurrer. A full statement of the averments of the petition is contained in the opinion, to which reference is made, instead of reproducing them here.

<p>Equitable petition. Before Judge Little. Muscogee superior court. June 19, 1905.</p> <p>Mrs. A. O. Vardeman brought suit against the Penn Mutual Life Insurance Company, and alleged: On July 31, 1902, the company issued a policy of insurance upon the life of A. O. Vardeman, agreeing to pay $1,000 to petitioner in case of the death of the insured. When A. O. Vardeman purchased the policy it was represented to him that the second premium need not be paid until thirty days, after July 31, 1903. The insured was informed and assured by the agent of the defendant that “it was the general custom of their business, and was universal,” to extend the insurance and date of payment for thirty days from the date of payment named in the policy. When the insured insisted 'on inserting this provision in his contract of insurance, the agent, in the presence of the insured, referred the matter to the “general agent of the company in Columbus,” who stated in the presence of the insured that it was not-necessary, that it was the custom of the defendant to so extend the time of payment, that the receipt would be in his office, and that, the insured could pay it in the thirty days. The insured died on August 20, 1903. The second premium was due under the policy on July 31, 1903. On August 22.w 1903, petitioner tendered to the defendant the'amount of the second premium. The defendant refused to accept it, and declared the policy had been forfeited. Petitioner prayed for judgment, and for a reformation of the contract of insurance, so that it would contain the provision for the thirty-day extension. The policy contained the stipulation that if the premiums were not paid when due, the policy should be null and void, and the further stipulation: “No alteration of this contract or waiver of any of its conditions shall be valid unless made in writing and signed by an officer ■ of the company.” The; defendant demurred to the petition, on the ground that it set fortli no cause of action. This demurrer was sustained and the petition dismissed. To this judgment the plaintiff excepted.</p>

<p>Action for damages. Before Judge Bussell. Talbot superior court. April 7, 1905.</p>

<p>Action for damages. Before Judge Littlejohn.' Dooly superior court. January 25, 1905.</p>

<p>Attachment. Before Judge Littlejohn. Schley superior court. May 10, 1905.</p>

<p>Action for damages. Before Judge Littlejohn.' Dooly superior court. January 25, 1905.</p>

<p>1. The probate and record of a will in Common form are not conclusive upon any one interested in the estate adversely to the will, and such person, within seven years from the time of such probate and record, may require proof in solemn form and interpose a caveat.</p> <p>2. A privy in estate of the sole heir at law, who had acquired his interest, before the probate of the will in common form, has such an interest in the estate of the decedent as will entitle him to cite the executor to prove-the will in solemn form; and if, on the trial of the issue of devisavit. vel non raised by the application, the final judgment should be adverse to setting up the will, the court will revoke the probate in common form and declare an intestacy.</p> <p>3. The statute declares that a will may be probated in common form without notice to any one, and upon the testimony of a single subscribing-witness; the ordinary is without jurisdiction to entertain a caveat by an objecting party or to pass upon the issue of devisavit vel non on an application to probate the will in common form; and an appeal by consent to the superior court from such a proceeding does not lie.</p> <p>4. Although the nominated exeeirtor of a will renounces his trust, yet after-wards offers the will for probate in common form and it is so probated, a. party at interest who applies to have the executor cited to probate the will in solemn foi’m can not set up such renunciation as a bar to the probate of the will per testes.</p> <p>5. A creditor of a decedent can not- controvert the validity of a will; for it is indifferent whether he receives payment of his debt from an executor or an administrator. '</p> <p>6. Where a will has been proved in common form, the judgment of probate can not be collaterally impeached in the superior court by any pleadings, attempting to raise the issue of devisavit vel non.</p> <p>7. The superior court has no power to set aside a will which has been admitted to probate.</p> <p>S. The judge of the superior court did not abuse his discretion in enjoining the suit of the remaindermen under the will probated in common form against a grantee of the sole heir at law before such probate, until the issue of devisavit vel non, made by the application of the latter to require proof of the will in solemn form, has been finally determined.</p>

<p>Petition for alimony. Before Judge Spence. Worth superior court. January 8, 1906.</p>

Indictment for murder. Before Judge Parker. Appling superior court. December 14, 1905. Dozier Warrick was indicted for murder. On the trial he was found guilty of voluntary manslaughter. He made a motion for. a new trial, which was overruled, and he excepted.

<p>Conviction of assault. Before Judge Fite. Catoosa superior court. December 15, 1905.</p>

<p>Indictment for robbery. Before Judge Mitchell. Lowndes superior court. January 5, 1906.</p> <p>James Hickey and Frank Moran were indicted for robbery. The indictment charged that the defendant “did suddenly snatch and suddenly take and suddenly carry away from the person of J. T. Boberts, and with intent to steal the same, and without the consent of the said J. T. Boberts, a leather pocket-hook of the value of one dollar and of the personal goods of John Youpg Boberts and in the possession and control of the said J. T. Boberts, and one hundred and eleven dollars in money contained in said pocket-book, there being one 25-[20 ?]dollar hill, one one-dollar hill, and some other bills, some ‘fives’ and some ‘tens,’ but the further description of said money being to the prosecutor and grand jurors unknown, hut being commonly known as paper money; said money being of the par value thereof, to wit $110.00, and being the property of said J. T. Roberts; contrary to the laws of said State, the good order, peace, and dignity thereof.” The evidence submitted by the State showed that the defendants waited and watched about the ticket-office at Valdosta, where they saw J. T. Roberts in possession of a purse with considerable money in it. They followed him to the train, and Hickey mounted the train and came to the platform as Roberts was about to enter, and pressed Roberts against Moran. Roberts felt the hand of one of them go into his pocket, and exclaimed “I am being robbed.” The defendants quickly disappeared, and the prosecutor felt for his pocket-book, and it was gone. The jury returned a verdict of guilty. The defendants moved for a new trial on the usual grounds that the verdict was contrary to law and evidence. The motion was overruled, and the defendants excepted.</p>

Complaint — appeal. Before Judge Bussell. Walton superior court. February 23, 1905. The Southern Printers’ Supply Company brought suit in the county court of Walton county against Joseph II. Felker for $38.17, alleged to be due on an open account. The defendant, among other things, pleaded recoupment for $100. The case was carried to the-superior court by appeal.

<p>1. When a mortgagee places in the hands of a levying officer a mortgage fi. fa. and an affidavit that the debt upon which the execution is founded is one from which a homestead is not exempt, and the mortgage fi. fa. is levied, and the wife of the defendant in fi. fa., in order to stop the sale, files with the levying officer a counter-affidavit denying the truth of the plaintiff’s affidavit, and claiming the property as having been set apart to her as a homestead, she is estopped from questioning the sufficiency of the entry of levy.</p> <p>2. If there has been a failure on the part of an applicant for an exemption of personalty under the Civil Code, § 2866, to comply with the law under which the exemption is sought to be made, the recording of the exemption claimed is a mere nullity and can not be amended.</p>

<p>Complaint. ' Before G. W. Williams, judge pro hac vice. City court of Dublin. May 2, 1905.</p>

<p>I. When a ease is referred to an auditor, and the report of the auditor is, over exceptions of fact, made the judgment of the court without submitting the exceptions to a jui-y, and the Supreme Court reverses the judgment because the case is one at law, and, upon the submission of the exceptions to a jury, the verdict is in favor of the exceptions of one party and against the exceptions of the other, and the court grants a new trial, the rule laid down in the Civil Code, § 5585, has no application. Under such circumstances it is in effect the second grant of a new trial which is under review.</p> <p>■2. An exception to an auditor’s report, classified as an exception of fact, but which raises only a question of law, should be stricken.</p> <p>•3. An exception of fact to an auditor’s report, which raises an immaterial issue, or which is so vague and indefinite as not to" present any clear-cut issue of fact, should be stricken.</p> <p>4. An exception to an auditor’s report, complaining of the admission of evidence, should set forth the evidence objected to.</p> <p>5. A guardian is not liable for interest during the first year after his appointment, unless there is interest earned. In that event he is chargeable with the actual interest and no more.</p> <p>13. Guardians are entitled to ten per cent, commissions on interest made, under the same circumstances in which the law allows such commissions to administrators. An administrator is not entitled to such commissions unless he shall return the interest made “to the ordinary so as to become chargeable therewith as a part of the corpus of the estate.”</p> <p>7. The rule in reference to the calculation of interest against trustees, laid down in the Civil Code, § 3498, was applicable in the present case.</p> <p>8.i In a guardian’s account commissions should not be allowed on commissions paid by the guardian to himself.</p> <p>9. Discussion of other matters raised by exceptions of law.</p>

<p>Where property is delivered to the buyer under a contract of conditional sale, the vendor retaining title thereto, the same may be seized under an attachment sued out for the purchase-price, without first filing and having recorded a bill of sale of the property to the buyer; and the bare fact that, before the rendition of judgment in favor of the plaintiff in attachment, the property is illegally brought to sale by the levying officer and is purchased by the plaintiff, affords no reason for holding that he is thereby estopped from prosecuting his suit, on the theory that, by becoming the purchaser at the illegal sale, he elected to rescind the contract between himself and his vendee.</p>

<p>The petition as first amended was held to be a stale demand. It was, there■fore, not error for the court below to disallow a proffered amendment which did not cure the petition in this regard.</p>

Complaint. Before Judge Reagan. Muscogee superior court. June 7, 1905. Held: at which a board of three directors, consisting of the three stockholders, was elected.

<p>1. Properly construed, the contract declared on by the plaintiff was an agreement under which he was employed by the defendants, for an indefinite term, as superintendent of a proposed manufacturing plant, at a fixed salary per month from a specified date, with the option of becoming a shareholder in a joint-stock company in the name of which the enterprise was to be conducted.</p> <p>2. Such a contract of employment, being indefinite as to its duration, is to be deemed a hiring for the term of one month only; and after the expiration of that period it was the right of the defendants to terminate the employment at will.</p> <p>8. Under the allegations upon which the plaintiff relied for a recovery, there was no breach of the contract declared on.</p>

Equitable petition. Before Judge Sheffield. Early superior court. April term, 1905. Mrs. White-Diamond brought an equitable petition against Hightowér & Co., Willie Wiley, and Hodges, sheriff, and alleged, that an execution was issued against her for the sum of $47, besides interest, costs, and attorney’s fees, in which Hightower & Co. were plaintiffs.

<p>Action for damages. # Before Judge Crisp. City court of Americns. March 16, 1905.</p>

Action for breach of contract. Before Judge Crisp. City court of Americus. March 6, 1905. This was an action by D. M. Borum against Swift & Company, for the breach of an alleged contract for the sale and delivery of ■meat.

Complaint.- Before Judge Littlejohn. Stewart superior court. March 22, 1905. Max Simons & Co. brought suit on two drafts, against McDowell and Pinkston as drawers, and Irvin as acceptor. The Bank of Southwestern Georgia was the payee named in the drafts, and had indorsed them in blank, without recourse. It was alleged that the plaintiff was a bona fide holder for value before-maturity. The defendants filed a joint plea of non est factum.

<p>Action for damages. Before Judge Littlejohn. Lee superior court. June 16, 1905.</p>

Complaint. Before Judge Littlejohn. Sumter superior court. June 23, 1905. The administratrix of Thomas M. Allen brought an action against the Travelers Insurance Company and Mrs. Rylander, to recover the amount of an insurance policy issued by the insurance company upon the life of Allen.

Foreclosure of lien. Before Judge Littlejohn. City court of Americus. January 5, 1905. Shiver brought suit against Ansley and the Central of Georgia Baílway Company, and alleged: Petitioner, as a materialman, furnished material for the erection of a warehouse, amounting to $1,-216.59, to Ansley, who, as a tenant of the railway company, was erecting the warehouse on land owned by it; and furnished further material, in the same transaction, amounting to $53.47.

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

<p>Complaint. Before Judge Littlejohn. Macon, superior court. June 27, 1905.</p> <p>Sandlin brought suit against the Indiana Fruit Company, alleging as follows: On or about July 1, 1903, the plaintiff made a contract with the defendant corporation, through its agent, Camp-field, to assist the latter in procuring a purchaser and bringing about a sale of all the fruit then growing on the trees of the orchards of the corporation for that year. The minimum price authorized to be accepted was $5,000, and for procuring a' sale of the fruit on the trees, or being instrumental in bringing it about, the company agreed to pay him the sum of $100. If he should procure a sale of the fruit, or be instrumental in bringing about a sale, for a greater sum than that named, the company agreed to divide whatever excess there might be, equally between him and itself. He was authorized to make a proposition to such prospective purchaser or purchasers as he might find for all the fruit growing on the trees. Under the contract he was not himself to complete the sale, but was to look out for anjr prospective purchaser, show him over the orchard or premises, and name a price or prices; but before any trade or sale should be completed or consummated, it was to be submitted to the agent of the company. In pursuance of the contract he began negotiations with one Crándal, who was the agent of another company. He went to the trouble'of getting Crandal upon the premises, at his own expense, drove with him over the premises and various orchards of the fruit company, using his own team, entertained Crandal at his house, and lost several days in trying to consummate a sale of the fruit, besides going to some expense in paying for telephone and telegraph messages in connection with the matter. He used every means within his power to-bring about a sale. Pending the negotiations some of the fruit began to ripen, and it became necessary to gather and ship it in order to preserve it. At the expiration of three or four days a sale of the fruit was consummated between the defendant company and Crandal for the sum of $5,210. Plaintiff is entitled to receive as commission the sum of $100, and, as his share of the excess above $5,000, the sum of $105. After making the proposition to Crandal, and before its acceptance, the defendant company shipped fruit from the orchard, to the value of $200. This was never delivered to Crandal, and plaintiff is entitled to one half of such value. There was also a sale by the company of pears to the value of $75, and plaintiff claims one half of such value. The defendant ■ denied all the material allegations of the plaintiff’s declaration. On the trial the jury found for the plaintiff $100. The defendant, moved for a new trial, which was refused, and it excepted.</p>

Exceptions to auditor’s report. Before Judge Littlejohn. Dooly superior court. June 30, 1905. Mrs. Sallie Barber brought suit against the executor of her husband, alleging that he was indebted to her in the sum of $6,350, besides interest from March 30, 1869, such indebtedness being claimed to have arisen from a trust relation brought about by his having the control and management of her estate during life.

Petition for certiorari. Before Judge Spence. Worth superior court. April 20, 1905. Kinard executed to the First National Bank of Sylvester a note for $315.50, and secured it by a mortgage. After the maturity of the note, and on a day when he had $146 to his credit on the books of the bank, he came to the bank and “started to draw a draft” on Muse & Co., of.

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

<p>There-being three ordinances of a city, the first, among other things, providing, under given circumstances, for the imposition of a sentence by the judge of the municipal court of a fine, or “confinement in the station-house, or both;” the second providing, among other things, that upon refusal to pay any fine, the court may by order require the person so refusing “to work on the streets” of the city; the third providing that all fines not otherwise paid may be enforced by work on the streets or public works of the city, such ordinances, relative to a sentence by the judge and the enforcement thereof by the imposition of a fine and the collection thereof, are to be construed together.</p> <p>t(a) Under such ordinances a sentence by the court imposing a fine, and directing that in default of the payment thereof the defendant do “work on the streets or public works of the city” for a time within the limit prescribed by the ordinance, was not unlawful.</p> <p>(b) The sentence being lawful, the detention of the defendant, under requirement of service upon the public works of the city, after refusal to pay the fine, was not unauthorized by law, and the defendant was not entitled to a discharge under the writ of habeas corpus.</p>

<p>Indictment for murder. Before Judge Parker. Appling superior court. January 2, 1906.</p>

<p>1. The charge, when considered as a whole, fairly submitted the issues to the jury. The extracts from the charge upon which error was assigned were not erroneous when considered in the light of the entire charge. If any more elaborate instructions in reference to the defendant’s theory of defense, as disclosed by the evidence and his statement, were desired, they should have been made the subject of appropriate written requests.</p> <p>2. The evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.</p>

<p>Indictment for murder., Before Judge Freeman. Carroll superior court. January 10, 1906.</p>

<p>Certiorari, Before'Judge Kinasey. Hall superior court. January 30, 1906.</p>

<p>Indictment for assault with intent to murder. Before Judge Boan. Fulton superior court. January 6, 1906.</p>

<p>Certiorari. Before Judge Kimsey. Hall superior court. January 30, 1906.</p>

<p>Certiorari. Before Judge Kimsey. Hall superior court. January 30, 1906.</p>

<p>Certiorari. Before Judge Kinsey. Hall superior court. January 30, 1906.</p>

<p>Indictment for murder. Before Judge Holden. Madison superior court. January 1, 1906.</p> <p>The defendant was convicted of murder, with a recommendation to mercy. From the evidence it appeared that he and the deceased had attended a picnic. Returning home, they, with others, sought shelter from the rain in a house. While at the house, the defendant, Henry Williams, Will Davis, Tom Davis, and others went under the well-shelter and weré talking. The defendant was a brother of Crawf. Muckle (McLeroy) and a brother-in-law of Henry Williams. George David testified that it was Henry Williams and Grawf. Muckle who were under the well-shed, and said, “It seemed like they were talking a little secret, to me.” Will. Davis was half drunk and cursing and threatening to kill the deceased. Before the rain was over, the deceased, with his friends, started home and they were immediately followed by the persons above named, and others. The quarreling was continued between Will Davis and the deceased. While going along the road Williams kept behind the deceased, and said that if others got out of the way, “we will kill” the deceased. When the deceased and some of his friends were about to turn off into another road, Will Davis ran in front. Crawf. Muckle handed him a pistol. A rock was thrown by Will Davis. A scuffle ensued. One of the deceased’s friends was slapped down by one of Davis’s friends. The row thus became quite general. At this stage, the defendant and Will Davis, Crawf. Muckle, and Williams were all seen firing pistols at the deceased at the same time, and he fell dead as they ceased firing. The defendant shot at the deceased from the front. Only two bullets penetrated the deceased, one into the right side of the body, the other into the right side of the skull, the latter penetrating the brain. Henry Williams was the only one who shot from that side. Except as may be inferred from what is stated above, it is impossible to say who fired the fatal shot. The defendant is not shown to have participated in any of the quarreling, or to have (been in any way concerned further than by mere presence in the'vparty, until he was seen firing at the deceased. The defendant, in his statement to the jury, denied having shot or otherwise engaged in a difficult}1', and proved good character. There is much evidence tending to support his statement. He moved for a new trial iipon the usual general grounds, and, among others, upon the grounds following: 4th. Because the court erred in charging the jury as1 follows: “I charge you further that if the defendant on trial, Charles McLeroy, shot and wounded the deceased, Lee Dudley, with an intention to kill him with a pistol, and if the wound was inflicted by the defendant, and if the deceased, from the effects of such shooting and wounding by the defendant, died, and if the defendant shot and wounded him, and if the defendant shot and killed the deceased without justification, and with malice aforethought as alleged and set forth in the indictment, the defendant would be guilt]' of the offense of murder, whether there existed between him and another party or other parties, or whether there did not exist between him and a party or other parties, a joint conspiracy, combination, common intent, and preconcerted plan to kill the deceased;” for the reason that there was no evidence upon which to base said charge. 5th. Because the court erred in charging the law of conspiracy, the indictment not alleging that the defendant, with others, conspired to kill and murder; and, after charging the law of conspiracy, he failed to charge the jury that if they should have a reasonable doubt on their minds that a conspiracy existed between defendant and other parties, it would be their duty to give the defendant the benefit of that doubt. The court charged the jury that, “If . . you do not believe beyond a reasonable doubt the defendant is guilty of murder as alleged and set forth in the indictment, it would be your duty to acquit him.” The motion for new trial was overruled, and the defendant excepted.</p>

Accusation of cheating and swindling. Before Judge Hyman. City court of Sandersville. February 1, 1906. Eiehard Johnson was tried on an accusation charging him, under the provisions of the act approved August 15, 1903 (Acts 1903, p. 90), with the offense of cheating and swindling.

<p>Indictment for murder. Before Judge Felton. Bibb superior court. February 13, 1906.</p>

<p>Indictment for misdemeanor. Before Judge Reagan. Upson superior court. January 15, 1906.</p>

- Certiorari. Before Judge Felton.’ Bibb superior court. February 8, 1906. Mary Stallworth was convicted, in the recorder’s court of the City of Macon, of a violation of an ordinance of that municipality. She applied to the judge of the superior court for the writ of certiorari.

<p>Accusation of larceny from the house. Before Judge Burch. City court of Dublin. February 19, 1906.</p>

<p>Conviction of manslaughter. Before Judge Wright. Randolph . superior court. February 13, 1906. ' -</p>

<p>1. The evidence warranted the verdict, and a new trial was properly denied.</p> <p>2. Where one indicted for crime files a plea in abatement, on the ground that the only witness whose name appears on the “special presentment” was not legally sworn before the grand jury at the time of the witness’s examination by that body, he must affirmatively establish the ground of his plea; otherwise it is not error for the court to direct a verdict against it.</p>

<p>Indictment for murder. Before Judge Eoan. Fulton superior court. February 24, 190G.</p> <p>White was convicted with a recommendation of life imprisonment. In his motion for a new trial, to the overruling of which he excepted, he complained that the verdict was contrary to law and evidence; and that the court erred in refusing certain requests to charge, and in giving to the jury certain instructions referred to in the headnotes. It seems, from the evidence for the State, that the accused and the deceased, one Quinn, went into a saloon on Peters street in the city of Atlanta, between nine and ten o’clock at night, that they quarreled in the saloon, and that the accused threw the deceased to the floor and against the foot of a bystander. On being remonstrated with by the bystander, the accused brandished a knife and declared he would cut anybody’s throat “that didn’t like what he was doing.” The barkeeper testified, that while the accused and the deceased were drinking, the accused had a knife in his hand and told the deceased if “he did not do so and so he would kill him, . . and the man that was killed said there was no use of that, that they could fix it up otherwise.” The accused and the deceased left the saloon together. Witnesses who saw them when they went out of the saloon testified that Quinn started to go one- way and that White, the accused, pulled him around and carried him in the opposite direction. One witness testified: “They came out of the saloon locked up in each other’s arms, and when they got out Quinn wanted to go up the street and White objected and took hold of him and carried him down the street with him. . . I understood him to say that he was going to cut him, or something, to that effect, that night. I never seen any weapon or anything of that kind.” Another witness said: “I heard Mr. White say something to Mr. Quinn, when they came out of the saloon. I was sitting in the restaurant door at 205 Peters street, and he said something to the one that had on the light suit, and the one that had on the light suit told him to hush, and he told him, God damn him, he would kill him before the night was out, and had a knife in his right hand. That was the man sitting there that had the knife in his hand. . . It was somewhere between nine and ten o’clock that this occurred, and I heard that he had been killed sometime after ten o’clock. . . The man that got killed is the one that had on the light clothes.” Another witness testified that on the night of the homicide she was at No. 263 Peters street. “I didn’t know T. K. Quinn in his lifetime,” she said. “I have seen this man, Mr. White, sitting here. He was with a young-looking man, shaved clean. I didn’t see the man he was with after he was dead. I didn’t see or hear this man here saying anything or doing anything to the other man that was with him, only holding him and pulling him along. 'He was saying some words, but I never understood them right good. He had hold of him, pulling him along. This other man was pretty drunk, it seemed like. I don’t know how far from Gillett’s saloon it was when I saw them, but we were down the street further.” Quinn fell dead at the corner of Peters and Beerman streets, about six city blocks distant from the saloon where he and the accused quarreled.” A witness testified: “I was standing on the corner of Beerman and Peters streets, with my back turned toward town, when the man that got killed walked up and said, ‘ Gentlemen, I am in a bad fix,’ And I looked around at him, and by that time he made one step and fell. . ' . He fell right at me, nearly. He never got up any more. When I looked around I didn’t notice any blood on his clothes, but after he fell I went and looked at him, and then I seed the blood. The blood was running out from under his collar. . . He didn’t say another word after he fell.” “I don’t1 know exactly what time of night it was, but it was somewhere about nine o’clock. . . There was nobody with him when he came up.” A police officer testified: “We arrested him [the accused] at his house between half past ten and eleven o’clock at night, on the same night of the killing. He made no remark to me before we arrested him. . . He and his wife were in the room, and we were up-stairs in the hallway. . . I was standing just outside of his door in the hall, and he was talking in there, and to the best of my knowledge he made this remark: cThe son of a bitch followed me and I fixed him.’ I don’t know who he was talking about, or anything. I suppose he knew I was out there at the time; he knew I was in the building, because we had been talking to him. 1 suppose he was talking to his wife, but of course I couldn’t see him at all. I heard a woman’s voice. . . I didn’t really understand what she said to him, but to the best of my knowledge she asked him what he had done; that is the way I understood it, but I couldn’t swear positively that was it.” Another police officer, who assisted in the arrest, testified: “I didn’t hear him say anything when we arrested him, but before we arrested him he was cursing in his room there, just cursing like a drunk man. He told us not to come in there, or he would cut our heads off. When they told him that the officers were out there after him, he just said that the first officer that came he would kill him, and his father came up and I told him to go in and get his knife, and he went and got it, and brought the knife to me.” The knife taken from the accused was identified by the .witnesses who saw the difficulty in the barroom as being the knife held there by the defendant. A physician testified that the wound from which the death of the deceased resulted was barely half an inch deep, but that it penetrated a vital artery. In his opinion the instrument that inflicted the wound was sharper and more pointed than the knife introduced in evidence, although he said it was possible that the wound was inflicted with that knife.</p>

<p>Indictment for robbery. Before Judge Roan. Eulton superior ■court. February 24, 1906.</p>

<p>The act creating the city court of Camilla (Acts of 1905, p. 189, § 27) does not, in eases other than indictments transferred from the superior court, authorize the trial of a defendant in a criminal case by a jury until the “regular” or “special” term next succeeding the time of filing accusation. Accordingly, a verdict rendered at the same term of the court during which the accusation Avas filed is unauthorized by laAV.</p>

<p>Conviction of manslaughter. Before Judge Littlejohn. Sumter superior court. February 10, 1906.</p>

<p>Indictment for rape. Before Judge Beagan. Telfair superior court. February 7, 1906.</p>

<p>Conviction of manslaughter. Before Judge Kimsey. Hall superior court. February Z3, 1906.</p>

<p>Recent possession of the stolen goods was sufficiently explained in this case, and, there being no other evidence to connect the defendant with the burglary, there was not sufficient evidence to authorize a conviction.</p>

<p>Accusation of misdemeanor. Before Judge Burch. City court of Dublin. February 19, 1906.</p>

<p>1. Heither the joinder of a witness in an' indictment with the defendant, nor a plea of guilty entered by the witness, necessarily makes him an accomplice with the defendant so as to require corroboration of the witness’s testimony on the latter’s trial. It is for the jury, from a consideration of the testimony of the witness, wherein he admits his presence at the scene of the crime at the time of its commission by his codefendant, but denies any participation therein by him, and the plea of guilty entered by the witness, as well as any other relevant circumstance, to determine whether the witness was an accomplice of the defendant on trial.</p> <p>2. The court properly left it for the jury to decide, under the evidence, whether the codefendant testifying was an accomplice; and the verdict may be upheld on the theory that the jury found that the witness was not an accomplice.</p> <p>3. Even on the contrary assumption that the witness was an accomplice, there was evidence from an extraneous source sufficient to corroborate the accomplice as to participation by the accused in the criminal act.</p>

<p>Conviction of stabbing. Before Judge Mitchell. Brooks superior court. February 22, 1906.</p>

<p>Conviction of manslaughter. Before Judge Martin. Pulaski superior court. February 5, 1906.</p>

<p>Habeas corpus. Before Judge Little. City court of Sparta. February 28, 1906.</p>

<p>Indictment for murder. Before Judge Freeman. Meriwether superior court. March 13, 1906.</p>

<p>Indictment for keeping gaming-room. Before Judge Oann. Chatham superior court. February 11, 1906.</p>

<p>When an indictment charges the commission of an assault with intent to murder by using a knife such as was likely to produce death, the proof must show that it was a weapon of this character. This may be done by producing the knife itself or introducing other satisfactory evidence to establish the fact, but not by evidence which falls short of that character of proof which will justify an inference by the jury that the knife used was in truth a deadly weapon.</p>

<p>Accusation of unlaivful sale of liquor. Before Judge Longley. City court of Dalton. March 3, 1906.</p>

<p>Indictment for robbery. Before Judge Roan. Fulton superior court. February 24, 1906.</p>

<p>Indictment for murder. Before Judge Spence. Calhoun superior court. February 22, 1906.</p>

<p>Indictment for larceny from the house. Before Judge Felton. Bibb superior court. February IB, 1906.</p>

<p>1. A corporation is not, merely because it/ is a creature of the law without physical existence, immune from indictment and criminal prosecution for nonfeasance in neglecting to perform duties which it owes to tlié public.</p> <p>2. It is within the constitutional power of our General Assembly to impose upon a railway company the duty of providing an adequate supply of pure drinking water for its passengers while journeying upon its cars, and to provide that the corporation shall be indicted, prosecuted, and fined for a neglect of this public duty.</p> <p>>(a) In so far as the legislature has undertaken to inflict upon violators of the Penal Code, §522, punishment other than fine, the punitive clause thereof is inoperative, because incapable of enforcement.</p> <p>■(&) That section is not, however, violative of the constitutional requirement that all general laws shall have uniform operation; since all violators convicted thereunder must necessarily be punished in the same way, by fine and not otherwise. '</p> <p>3. When a corporation )vliich is under indictment voluntarily makes an appearance in court by its attorney and demurs to the indictment, it ■ thereby waives service of process upon it in the manner pointed out by statute.</p>

ilabeas corpus. Before Judge Park. City court of Sylvester. March 6, 1906. Crosson was tried and convicted in the city court of Sylvester, established under the act of 1904 (Acts 1904, p. 207). He applied for a writ of habeas corpus, upon the ground that that court had no legal existence and that therefore his detention was illegal.

<p>Indictment for assault with intent to murder. Before Judge Gober. Cobb superior court. March-14, 1906.</p>

<p>Certiorari. Before Judge Lewis. Morgan superior court. March 10, 1906.</p>

<p>Indictment for misdemeanor. Before Judge Reagan. Butts superior court. May 10, 1906.</p>

<p>Accusation of unlawful sale of liquor. Before Judge Henderson. City court'of Vienna. January 27, 1906.</p>

<p>Indictment for arson. Before Judge Holden. Oglethorpe superior court. January 15, 1906.</p> <p>J. T. Pittard owned a gin-house, which was burned about 4 o’clock on the morning of September 26, 1903, during the ginning season. 'The seed-house was about 25 feet from the gin-house. Connecting the two was a wooden structure, a little house sufficiently high from the ground to enable wagons to pass under it for loading and unloading, and upon which were two flues for letting the seed out and taking them in from the wagons. This structure is referred to •as the “seed-bin.” It contained' lint-cotton and other highly inflammable material. At the close of the previous day’s work there was. no fire about the premises, except in the furnace in the boilerToom, which stood on the opposite side of the gin-house, 90 feet away from the seed-bin and seed-house. At the close of the day’s work, there was near this seed-bin a high trestle-bench, such as plasterers use. Neely Jackson, a colored woman, lived about 100 yards from, the gin. There were a number of other residences near by, among them that of Matthews, where Waggoner,the gin overseer, boarded, 150 yards away, and Arthur McWilliams, whose house was about 100 yards away and near that of Neely Jackson. Andrew Harris was an employee who was permitted to sleep on the porch of Mr. Pittard and in the gin-house, and was expected to act as watchman around the gin-house. Pie testified, that about 12 o’clock on the night of the fire, while on watch, he heard a noise emanating from the direction of the seed-bin, which sounded “like a rat gnawing or somebody whittling.” About this time a dog passed where he was standing at the front of the gin-house, and he jumped at the dog, making a noise. Then Bryant Smith, the defendant, came from- the place where the whittling sound was heard, and was hailed by him several times before he answered, but finally said, “It is nobody to hurt you.” Harris followed the defendant as far as the well, and saw him go into the house of Neely Jackson. After he was gone, Harris went to where he had heard the whittling noise, and there found a slab of fat wood about five feet long, which had not been there in the evening, standing against the wall of the seed-bin, and shavings on the ground. The trestle bench was under the wall of the seed-bin. Neither the shavings nor the bench were there at the close of the previous day’s work. Arthur McWilliams testified, that, about 3 o’clock of the same night, he heard the defendant in Neely Jackson’s house, when she called him to get up, and that the defendant then asked her where were the matches. This was •earlier than the defendant usually got up. Witness dropped off to sleep, and was awakened by the alarm of fire, and immediately sprang out of bed and ran, dressing as he went, to the scene of the fire, accompanied by Jones Thomas and others, and tried to put it out. Witness further testified: “I know what Bryant Smith told me next day. Me and Andrew were talking about how much cotton we could gin, and he asked how much could we gin now. I told him none, because the gin-house was burnt; he said he got $25 for burning it down, 'a heap seen, but few knew.’ ” This witness had been previously charged with the offense. Hr. Pittard testified, that he reached the fire just as it was reaching the gin-house, and that it had made considerable headway in the seed-bin where it originated. Mr. Waggoner testified, that he was about to have breakfast, and went out on the porch and saw “when they struck a match;” that he “saw the light,” and thought it was some of the men getting ready to work. As he sat down to the table the clock struck four, and he had not “eaten a half biscuit, you may say, until they hollered fire.” He ran to the gin-house and found Arthur McWilliams and Jones Thomas trying to put out the fire.”</p> <p>There was considerable conflicting testimony tending to show the defendant’s innocence, and especially that he was not at the house of Neely Jackson on the night of the fire, but spent the night at another place, about a half mile distant, and was there when the fire alarm was given. The jury having found the defendant guilty, he moved for a new trial, upon the general grounds, and further: (4) Because the court erred in charging the jury as quoted to the headnote. (5) Because the court erred in failing to charge the law of circumstantial evidence. (6) Because the court erred in failing to charge the law-of circumstantial evidence in a qualified way, by instructing the jury that if for any reason they should not believe the direct evidence, before they could convict the defendant upon circumstantial evidence such evidence would have to be so strong as to exclude every reasonable hypothesis except that of the defendant’s guilt. The court overruled the motion, and the defendant excepted.</p>

<p>Indictment for murder. Before Judge Holden. Madison superior court. January 1, 1906.</p>

<p>Indictment with assault with intent to murder. Before Judge Boan. Fulton superior- court. February 20, 1906.</p>

Conviction of manslaughter. Before Judge Martin. Irwin superior court. January 26, 1906. The defendant was indicted for murder, and convicted of voluntary manslaughter.

<p>1. The showing which the aceusecL made in support of his motion for a continuance because of the absence of a witness was not in accord with the statutory requirements, nor such as to warrant this court in holding that the trial judge abused his discretion in overruling the motion.</p> <p>2. It is incumbent upon a party assigning error upon the admission of evidence to make it appear what objection, if any, was urged against the reception of the evidence at the time it was offered.</p> <p>3. The evidence introduced in behalf of the State established the charge of murder preferred against the accused.</p>

<p>No other verdict than one finding the defendant guilty of voluntary manslaughter or of murder could properly have been found, under the evidence and the prisoner’s statement; and the jury having rendered a verdict for the lesser offense, the judgment of the lower court will not be reversed, even if there were some inaccuracies in the charge.</p>

Petition for receiver. Before Judge Pendleton. Pulton superior court. January 18, 1906. Mrs. Carlisle purchased three certificates of the- People’s Home Purchasing Company, by means of which she expected to obtain a loan of $3,000 for the purchase of a home. She made a contract for the purchase of a lot, for which she agreed to pay $735, and commenced the erection of a house thereon.

Injunction. Before Judge Holden. Oglethorpe superior court. November 16, 190,5. W. D. Carter brought an equitable petition against N. D. Arnold, in the superior court of Oglethorpe county, wherein he made the following allegations: During the years 1903 and 1904 and for several previous years he rented land from defendant. Eor all years previous to 1903 he paid defendant all he owed him.

<p>The Political Code, §405, requires that the order of the ordinary, when assessing county taxes, shall specify the per cent, levied for each specific purpose. An order specifying the amount to be collected for each purpose, but not the per cent., fails to comply with the statute; and the collection of taxes on such an assessment was properly enjoined.</p>

Action for damages. Before Judge Littlejohn. Dooly superior court. May 15, 1905. McEnight sued the Atlantic & Birmingham Bailway Co., alleging that he was the owner of a lot in 'the city of Cordele, which was located on the corner of 10th street and 7th avenue, the former being on the west side of the lot, and the latter on the north side. Upon this lot was a building, the lower story of which was used for storehouses, the upper story being used as a hotel.

<p>Eviction. Before Judge Parker. Wilcox superior court. January 15, 1905:</p> <p>The plaintiff made an affidavit, under the provisions of §4813 of the Civil Code, seeking to evict the defendant as a tenant at sufferance from certain premises therein described. A warrant was issued under the provisions of §4814, and the defendant made an affidavit to the effect that he did not at the time hold the premises either by lease or rent, or at will or by sufferance, or otherwise, from the defendant or from any one under whom he claimed the premises, or from any one claiming the premises under him. On the trial of the issues thus raised, the defendant offered in evidence a deed, executed in 1882, from George Johnson to the defendant, purporting to convey the premises in dispute. The deed was excluded. The plaintiff testified, in substance, that prior to April, 1900, the defendant owned the property from which it was sought to evict him; that in April, 1900, the plaintiff became the purchaser of said property at mortgage sale, where it was sold as the property of the defendant; that-immediately after the sale he had an understanding with the defendant by which the defendant was to remain on the premises as his tenant at sufferance; that the defendant, with the exception of about two months, did remain on said premises as the plaintiff’s tenant at sufferance until the institution of this suit, acknowledging himself as such tenant and never denying the tenancy; that during that time the plaintiff caused substantial improvements to be made upon the dwelling-house where the defendant resided, and the defendant sought employment to do the work; that during the two months excepted, the defendant moved away to some other place, and the premises in dispute were in the meantime occupied by another tenant of the plaintiff. The defendant testified in his own behalf, ancl-made no express denial of the substance of the testimony of the plaintiff, just stated, further than to say that he never did hold the premises under the plaintiff, and never consented for him to buy at the mortgage sale. He admitted that the plaintiff had demanded possession before the institution of the suit; and that while he did not then intend to surrender possession, he did not communicate that fact to the plaintiff. The defendant testified also that he did not hold the place under the plaintiff, but held it under a title which came to him by virtue of the deed from Johnson, that being the deed which was excluded from evidence. The jury found for the plaintiff. The defendant moved for a new trial upon the grounds, that the verdict was contrary to law and evidence, and that the court erred in refusing to admit in evidence the deed from Johnson to himself. The motion ivas overruled, and he excepted.</p>

<p>1. On the trial of an action against a debtor to enforce a materialman’s lien for materials sold to and used by him in the improvement of certain real estate, of which he was in possession as the ostensible owner, the record of a claim of lien asserted by the plaintiff against the defendant’s wife, as the owner of the property, for materials furnished to improve the same, is inadmissible in evidence, because of the obvious variance between the pleading and the proof offered to sustain it.</p> <p>2. Such an action can not be converted into one against the wife by an amendment alleging that her husband acted as her agent in purchasing the materials and using them in making improvements upon real estate belonging to her.</p> <p>3. The grant of a nonsuit was proper.</p>

<p>Injunction. Before Judge Martin. Montgomery superior court. Januarjr 24, 1906.</p>

<p>Appeal. Before Judge Parker. Coffee superior court. March 29, 1905.</p>

Action for damages. Before Judge Parker. Ware superior court. May 13, 1905. This action was on account of the killing of cattle by a train on the defendant’s railroad. The evidence for the plaintiff was such as to raise the statutory presumption of negligence against the defendant. In rebuttal the engineer and the fireman were introduced. According to the testimony of the fireman, he was at work and knew but little about the injury.

Action for damages. Before Judge Fite. Whitfield superior court. July 15, 1905. William Hill brought an action for damages against the Southern Railway Company. The substance of the petition was: Plaintiff was driving three mules, hitched abreast to a grain binder, on his way to the field of one Nichols. One of the mules and the grain binder were his property. In order to reach the field, it was necessary to drive along a private road over defendant’s right of way.

<p>Action for damages. Before Judge Beagan. Henry superior court. August 7, 1905.</p>

<p>1. Where the defendant was in possession of a tract of land, the title to which was in dispute between himself and the plaintiff, it was error for the court to finally decree, before the question of title was adjudicated, that the defendant be permanently enjoined “from interfering with or interrupting the plaintiff, . . in the . . enjoyment of the use and possession of the premises, . . with the right [of the plaintiff] to remove obstructions now or hereafter placed on said premises by the defendant.”</p> <p>2. Upon the trial of the ease the court did not err in refusing to allow an amendment to the answer, when the same set up new matter of defense, notice of which was not given in the original answer, and the defendant failed to swear, in the affidavit attached to the proposed amendment, that such new matter was not omitted from the original answer for the purpose of delay.</p>

Action for damages. Before Judge Burch. City court of Dublin. February 13, 1905. Skipper brought an action against the Southern Cotton Oil Company to recover damages for a personal injury. A verdict for $2,500 was rendered iii his favor. The defendant moved for a new trial, which was refused, and it excepted.

Petition for injunction. Before Judge Littlejohn. Dooly superior court. September G, 1905.

<p>1. When, a petition brought to enjoin a trespass contains allegations sufficient to show that the damage would be irreparable, it is not necessary to allege or prove that the defendants are insolvent.</p> <p>2. The evidence, though conflicting, was sufficient to support the findings of fact made by the judge, and the judgment granting an interlocutory injunction will not be disturbed.</p>

<p>Attachment. Before Judge Mitchell. Colquitt superior court. April 11, 1905.</p> <p>. The DeLoach Mill Manufacturing Company sued out an attachment against the Standard Sawmill Company for $174.62, the purchase-price of certain machinery. The defendant in its answer admitted the purchase of the machinery, but alleged, that it was inferior in quality, did not come up to the representations made by petitioner, and broke in operation, thus causing a delay of four or five days in the work of defendant’s mill, which damaged defendant in the sqm of $625, and compelled defendant to send a man to Macon to buy new gearings, at a cost of $100. Defendant prayed judgment against plaintiff for $725. Defendant by amendment further alleged, that at the request of plaintiff it left on storage with plaintiff in Atlanta certain machinery of the value of $550, which plaintiff refused to deliver to defendant; and defendant prayed for a judgment for the value of this machinery. After a trial the jury returned a verdict for the defendant, for $415. The plaintiff moved for a new trial, and to the judgment overruling this motion it excepted.</p>

<p>Certiorari. Before Judge Mitchell. Berrien superior court. June 22, 1905.</p>

<p>Eviction. Before Judge Parker. Glynn superior court. June 24, 1905.</p>

<p>1. “When a defendant against whom a verdict has been rendered makes a motion for a new trial, he can not properly, while the same is still pending and undisposed of, bring to this court for review 'any ruling, order, or decision made by the judge during the progress of the ease, or the judgment entered upon the verdict.” Duke v. Story, 113 Ga. 112.</p> <p>2. Where a motion to dismiss a writ of error pending in this court was duly made; on the ground that it had been sued out while the motion for a new trial was pending in the superior court, and this was accompanied by affidavits of the counsel, party, and clerk, showing such to be the fact, and a motion to require the additional record to be certified and sent up was made, this court has authority to direct the clerk to certify and forward a copy of the motion for a new trial and all orders passed thereon, so that it may appear from the retíord whether in fact a motion for a new trial had been made and was pending when the bill of exceptions was certified.</p> <p>.15. It appearing, from the certified transcript of the record transmitted by the clerk of the superior court under order of this court, that a motion for a new trial had been made and was pending and undisposed of when the bill of exceptions was ’tendered and signed, complaining of rulings of the character referred to in the first note above, the writ of error will . be dismissed by this court.</p>

<p>Application for temporary alimony, etc. Before Judge Pendleton. Fulton superior court. June 21, 1905.</p>

<p>Habeas corpus. Before Judge Rawlings. Jefferson superior court. January 23, 1906.</p>

<p>Complaint. Before Judge Holden. Taliaferro superior court. May 31, 1905.</p>

<p>Probate of will. Before Judge G-ober. Cobb superior court. March 13, 1905.</p> <p>A will was propounded for probate in solemn form. It appeared, from the testimony introduced by the propounder, that the paper propounded was not signed by the alleged testatrix until after it was signed by the witnesses thereto, though there was evidence to the effect that the signing by the testatrix and by them was all a part of the same transaction, she having signed just after the last witness had subscribed his name. The presiding judge held that the paper was not valid as a will and not entitled to probate, and directed a 'verdict accordingly. The propounder excepted.</p>

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

<p>1. Where a demurrer to a proceeding to foreclose a mortgage was over- • ruled, and a bill of exceptions signed and filed, bringing the ruling to this court for review, this alone did not ipso facto operate to prevent the presiding judge from- proceeding with the' trial.</p> <p>2. Where proceedings were instituted to foreclose a mortgage, in the name of the original mortgagee, for the use of certain persons to whom it was alleged that the security notes had been transferred, and no effort was made to cut off any defense which the mortgagor might have, a mere denial that the title to the notes was in the usees, and an allegation that they held such notes only as securities, did not furnish any valid defense to the foreclosure.</p> <p>3. A general allegation in an answer, that the mortgagee has paid $50 or $60 for which no credit has been given, and that she is unable to give the sum or date of each payment, without alleging to whom, or when, or where such payments were made, is demurrable.'</p>

<p>1. Where A, being in possession of lands, agrees to pay rent to B for such lands, thereby attorning to B as his landlord, he will be estopped from ■ setting up title in himself adverse to B, until he shall have surrendered possession, even after the expiration of the period during which he had contracted to pay rent.</p> <p>2. Where the evidence relied upon by B to show the relation of landlord and tenant, in proceedings to remove A from such lands, consisted in part of a promissory note in which terms descriptive of said lands were used, it was competent for A to show by parol that the descriptive terms were not in the note at the time of its execution.</p> <p>3. Where the evidence was conflicting upon one of the controlling issues of the case, the court erred in directing a verdict.</p>

<p>1. There was no error in sustaining the special demurrer and- striking a. portion of the plaintiff’s declaration.</p> <p>2. In an action for the recovery of damages resulting from a fire kindled upon the property of the defendant, as a general rule it is necessary for the plaintiff to show that the fire was unlawfully kindled, or negligently kindled or guarded.</p> <p>3. If, without more, it should he shown that a fire was occasioned by the operation of the locomotive, ears, or other machinery of a railroad company, and that damage resulted to the owner of adjacent property, under the Civil Code, § 2321, negligence on the part of the company would be presumed. But if the damage complained of was not caused “by the running of the locomotives, or cars, or other machinery” of the company, or by some person in its employment and service, within the meaning of that statute, the rule as to. presumption arising from proof of damage would not apply.</p> <p>4. In determining what ordinary care requires the employees of the railroad company to do on a given occasion,, the situation and circumstances are proper for consideration.</p> <p>5. The grant of a nonsuit in this case was error.</p>

<p>Complaint. Before Judge Burch. City court of Dublin. April 24, 1905.</p>

<p>Probate of will. Before Judge Lewis. Greene superior court. August 18, 1905.</p>

Complaint. Before- -Judge Willis. City court of Columbus. August 19,- 1905. The Warner Sugar Refining Company, a foreign corporation, sued the Williams Manufacturing Companjq a corporation of this State, upon an account for $482.01, the price of sixty barrels of forty-two per cent, mixing glucose, sold by the plaintiff to the defendant. The petition was paragraphed, and attached thereto was a copy of the account sued on.

<p>Where the relation of landlord and cropper exists, the title to and right to control and possess the crop remains in the landlord until he has received his part thereof and has been fully paid for all advances made to the cropper to aid in making the crop.</p>

<p>.1. An estoppel in pais does not arise in favor of the sureties on an administrator’s bond when it appears that the heirs at law, after citing him to account for the proceeds of land sold by him at public sale, recovered the land in an action of ejectment brought against the purchaser at the sale, but subsequently lost possession thereof when it’ was subjected to the demands of a mortgage creditor of such purchaser, as against whom they were estopped from attacking the validity of the administrator’s sale, because of their prior election to claim the proceeds of the 'land.</p> <p>’2. In a suit against the sureties on the bond of the administrator, prima facie proof of a devastavit committed by him may be made by introducing in evidence the judgment against him (unaccompanied by any part of the record of the proceedings in which it was obtained) and showing by proper entries upon the execution issued thereon that there is no property of the estate upon which to levy. A return of nulla bona reciting that there is no property of the “defendant” to he found is to be construed as meaning that the levying officer can find no property in the hands of the administrator which belongs to the estate of his intestate, not as referring to an unsuccessful search for property belonging-to the person named in the fi. fa. in his individual right.</p> <p>3. When the defendant to such a suit is the legal representative of one of the sureties on the bond, a plea of plene administravit may be met by the introduction of evidence disclosing that the defendant’s testator left property which was subject to the plaintiff’s demand and which ought to be in the defendant’s hands for administration.</p> <p>-.4. The bare fact that the defendant had also been appointed administrator •of the sole beneficiary under the will of the testator and had assumed • .charge of the assets of his estate in that capacity, not as administrator •de bonis non cum testamento annexo, affords no reason why judgment in favor of the plaintiff should not be rendered against him in the capacity in which he is sued.</p> <p>.:5. Where the issue is whether or not a devastavit has been committed by an administrator, the opinion of witnesses that the estate represented by him was insolvent at the time of the death of his intestate is of no probative value.</p> <p>•6. Sureties on an administrator’s bond can not, by any private understanding amongst themselves, fix their liability relatively to any person not a party to their agreement. If they agree to discharge the indebtedness of the estate out of their private funds and to waive all right to reimbursement by the administrator, they do not become creditors of the •estate by carrying out this voluntary undertaking. Bu,t if, after doing :so, suit upon the bond is brought against them by the heirs at law, the sureties may set up the equitable plea that but for the payment of this indebtedness the heirs could have hoped to receive little or nothing from the estate, and therefore the fact that they were benefited by the payment of its debts should be taken into consideration in determining how much they really ought to have realized as their distributive share of the assets. The sureties having discharged the indebtedness in order to escape threatened liability to creditors under the bond, the doctrine of equitable subrogation applies in such a ease.</p>

<p>Equitable petition. Before Judge Spence. Decatur superior court. June 9, 1905.</p>

<p>Trover. Before Judge Littlejohn. Sumter superior court. April 11, 1905.</p>

<p>1. Where credit is extended to a tenant upon the faith of a letter written by his landlord, wherein the latter promises to join with the former in . the execution of a guano note, a suit based on the refusal of the landlord to sign such a note after the guano has been furnished, or to pay the tenant’s note at maturity, can be maintained only by the person extending the credit or by some one to whom he has assigned in writing the claim which gives rise to the cause of action.</p> <p>2. The writer of the letter can not be properly joined as a eodefendant to a suit brought in a county other than that of his residence against the tenant on the note executed by him, for the reason that the landlord never in fact became a joint promisor with his tenant relatively to the contract evidenced by the note, and the tenant did not become jointly liable with the landlord because of his refusal to comply with the undertaking assumed by him in the letter upon the faith of which credit was extended to the tenant.</p>

<p>A general demurrer, to tlie plaintiff’s equitable petition to remove a cloud on title to realty was sustained. Upon the face of the petition it did not appear that the plaintiff or any of the defendants were in possession of the lands in controversy; nor did it appear that the plaintiff had perfect title thereto; nor was it averred that he was the true owner of the lands. There was no error in sustaining the demurrer.</p>

Complaint. Before Judge Mitchell. Colquitt superior court. April 11, 1905. Powell brought suit against Allen & Holmes, a partnership.

<p>"When, pending the trial of a claim ease, the fact comes to light that the plaintiff in fi. fa. is no longer in life, the hearing should be suspended and postponed till some person duly appointed to represent his estate can be made a party in his stead. An heir at law who is not shown to have any authority to represent him in the litigation can not properly be made a party thereto.</p>

<p>Where an owner of several omnibuses, carriages, buggies, and other vehicles entered into a contract with a mechanic by which it was agreed that the latter should furnish materials and repair all of such personal property from time to time, as it might be necessary, and as the owner might require, and that the mechanic should deliver the property thus repaired to the owner, and should be paid for such materials and repairs-at such time as he (the mechanic) should elect, which should be whenever he demanded payment of the amount, it being understood that the-indebtedness was a running account and should become due on demand;, and where, in pursuance of such contract, the mechanic furnished materials and made repairs from time to time on the different vehicles and delivered possession thereof to the owner, not recording any lien within ten days from tlie repairing of any particular vehicle, but at the close-of a year from its making the contract was terminated and he then made demand for payment, recorded a claim of lien and made affidavit for tlie purpose of foreclosing it: Held, that this did not give the mechanic a lien upon the property.</p>

Complaint, Before Judge Humphreys. City court of Moultrie. June 2, 1905. The E. T. Stone Tobacco Company sued M. C. Pearce & Company, a partnership. The petition alleges that the plaintiff sold and delivered to Bridges & Company certain articles of merchandise set forth in an account attached to the petition.

<p>Complaint. Before Judge Mitchell. Berrien superior court. .March term, 1905.</p>

<p>Certiorari. Before Judge Mitchell. Berrien superior court. June 23, 1905.</p>

<p>1. In a petition for certiorari, where all the evidence and all the record, including the judgment of the trial court, are set forth, it is a sufficient assignment of error to allege that the plaintiffs except to the judgment and assign error upon the same “because the same is contrary to the law and the evidence, and without either to support it/’</p> <p>2. In a non-severable'cause of action, where two persons individually as coplaintiffs sue, and as such, after judgment against them, sue out a writ of certiorari, the bond to be given should be signed by both, either in person or by attorney at law, or by a duly constituted agent; and if it is executed by one as the agent of the other, with power to sign the name of the other, the power so to sign must expressly appear.</p> <p>3. In a suit in a county court, where the amount involved in the case exceeds fifty dollars, and there is no conflict of evidence and no question involved upon which the judge of the superior court could not direct a verdict one way or the other, .a question of law only is presented, and the writ of certiorari is the proper remedy for reviewing the judgment of the court.</p>

<p>Action for damages. Before Judge Griffin. City court of Valdosta. July 15, 1905.</p> <p>Taylor sued the railroad company for damages. The allegations in his petition were, in substance, that on October 6, 1902, he was at the town of Naylor, and started from the north side of the main track of the defendant, where certain camp cars were located, in an oblique direction southeast, for the purpose of reaching a freight-train upon the west side, which at that time was slowly pulling into the-south siding at that point. Before stepping over the main line of the track he looked east, the direction from which the freight-train taking the siding had just come. He did not look west, and when he had gone about fifteen steps he was struck by the engine of a train coming from that direction. The train which struck him was moving at a rapid rate of speed, going east. The defendant was negligent in running its trains through the town of Naylor, over a public-street crossing, without blowing the whistle or ringing the bell. The plaintiff was without fault. In an amendment it was alleged, that the town of Naylor was situated on both sides of the track of the defendant; that at the place where the accident occurred there were two side-tracks in addition to the main line; that the ground at this point is level, and for years it had been the custom and habit of individuals and the public, going from one part of the town to another, to walk over the tracks of defendant without regard to the one and only public-road crossing. This habit and usage was within the knowledge and without the disapproval of the defendant and its employees. Under the circumstances, it was the duty of the defendant to anticipate his presence, and to take proper measures to prevent injuries 'to him. It was also alleged that the engineer in charge of the train recklessly and wantonly ran the engine down upon the plaintiff while he was unconscious of its approach, without giving him any warning whatever. To the petition the defendant filed a general demurrer, and also a special demurrer upon the ground that the petition was not divided into orderly paragraphs. The demurrer was overruled, and the defendant excepted pendente lite. An answer was filed, denying all the material allegations of the petition respecting the defendant’s negligence. A trial resulted in a verdict in favor of the plaintiff for $5,000; and the defendant assigns error upon the refusal to grant a new trial, and upon the exceptions pendente lite.</p>

Distress warrant. Before Judge Parker. Wilcox superior court. January 14, 1905. D. M. Elkins sued out a distress warrant against N. E. Sapp, for the sum of $250.63, due as rent for a farm in Wilcox county. The warrant was issued by a justice of the peace, and made returnable to his own court. A counter-affidavit was made by Sapp.

<p>Action for damages. Before Judge O’Steen. City court of Douglas. February 10, 1905.</p>

<p>Intervention. Before Judge Parker. Glynn superior court. March 24, 1905.</p> <p>The Knickerbocker Trust Company, as trustee for the first-mortgage bondholders, filed in the superior court of Glynn county a petition for the foreclosure of the mortgage securing the bonds issued by the Brunswick and Birmingham Railroad Company, and for the appointment of a receiver. The defendant admitted default in the payment of interest coupons, and insolvency; and the prayers of the petition were granted. In the final decree it is declared that the mortgage set forth in the petition is a valid and subsisting mortgage, and constitutes a first lien upon all the property and franchises of the defendant railroad company. The amount of the bonds was over three million dollars. The property of the defendant was sold at public outcry, and was bought in by Bird M. Robinson for one million dollars; and this sale was confirmed. The purchaser was required to furnish a bond in the sum of $35,000, conditioned for the payment of such costs and claims as might be adjudged to be properly payable out of the proceeds of the sale. The bond was filed, and thereafter the plaintiff moved to cancel the bond, as all claims and demands entitled to preference over the .bonds had been satisfied. The 'Seaboard Air-Line Railway then filed a petition, praydng to be allowed to intervene, and setting up that there were pending three suits in which the Seaboard AirLine Railway and the Brunswick and Birmingham Railroad Company were defendants, the suits being for damages for personal injuries. -In one case a judgment for $2,750 had been rendered against the defendants, and was now pending on writ of error in the Supreme Court. In the event judgments in said suits are finally rendered against the defendants, the Seaboard Air-Line Railway would be- entitled to demand contribution from the said Brunswick and Birmingham Railroad Company. Therefore it was prayed that the $35,000 bond be continued in force. By amendment it was further alleged, that the bonds issued by the Brunswick and Birmingham Railroad Company were delivered to the holders without any consideration, and were in reality gifts to the promoters of the mortgagor, and that the amounts paid out upon such bonds already exceeded the sums paid thereon, and said bondholders were in equity entitled to no more of the proceeds from the sale of the property of the defendant. This intervention was not allowed; and the Seaboard Air-Line Railway excepted.</p>

<p>Certiorari. Before Judge Parker. Wayne superior court. May 12, 1905.</p>

Action for damages. Before Judge Parker. Clinch superior court. May 29, 1905. Mrs. L. J. McDilda brought suit against the railroad company for the homicide of her husband. The homicide occurred September 1, 1899, and the suit was filed September 7, 1901. The defendant demurred to the petition, one of the grounds being that it appeared therefrom that the right of action was barred by the statute of limitations. The demurrer was overruled, and the defendant excepted.

Petition for injunction. Before Judge Parker. Clinch superior court. May 29, 1905. The circumstances under which this litigation originated are set forth in detail in the repoft of the case of Booth v. Mohr, 122 Ga. 333. At the instance of creditors of R. J. Booth & Co., a receiver was appointed to take charge of the assets of that firm.

<p>1. Where in an attachment case it is desired to proceed to obtain a general judgment against the defendant, notice in writing should be given to him of the pendency of such attachment, and of the proceedings thereon. The original notice with the entry of service upon it should be returned to the court in which the attachment is pending. Where an attachment is sued out before a justice of the peace, returnable to a city court, it is not a sufficient compliance with the Civil Code, §4557, on the day when the attachment is levied by the constable, and before it has been returned to the court or is there pending, to give notice of its issuance and levy.</p> <p>2. Where in an attachment case no proceedings were taken as provided by law for the purpose of obtaining a general judgment against the defendant, but the judgment entered up was both generally against the defendant and specially to be enforced against the property attached, such a judgment could be amended by striking the general feature of it even after the expiration of the term when it was rendered.</p> <p>3. The amendment of the judgment made was broader than the application and the facts required. It should be corrected accordingly. ,</p>

<p>Complaint for damages. Before Judge Reynolds. City court of Wayeross. July 3, 1905.</p> <p>The Howard Supply Company brought a suit for damages against the Atlantic and Birmingham Railway Company. According to the allegations of the plaintiffs petition, one Elias Moore Jr., on November 18, 1903, delivered to the defendant 260 cross-ties, loaded upon a car on the defendant’s railroad near Beach, in Ware county, and received from the company’s agent at Beach a receipt or bill of lading for the shipment, which was consigned to the Howard Supply Company at Brunswick, Ga. Upon the same day, Moore attached this receipt or bill of lading to a draft drawn on the plaintiff at Savannah, Ga., in payment of the cross-ties, which ■draft was subsequently paid by plaintiff. The cross-ties were delivered to the defendant company by Moore upon the order of the representative or agent of the plaintiff, and the cross-ties, by delivery to the railway company, then and there became the property ■of the plaintiff, to be transported on its line of railway to Brunswick, Ga. The market value of the cross-ties was at that time 44 •cents each, or $114.40 for the entire shipment. They -have never been delivered to the plaintiff, although they have been demanded of the defendant.</p> <p>The defendant answered, that for want of sufficient information it could neither admit nor deny the allegations on which the plaintiff relied for a recovery, but that it was not liable to the plaintiff in any amount. On the trial, Moore, the consignor, testified: The cross-ties belonged to him, and he sold them to Silas King, who was representing the Howard Supply Company. King gave him a draft on his principal, which, when attached to the railroad receipt or bill of lading, was to be in payment of the purchase-price. Witness and King went to Beach to get the railroad receipt or bill ■of lading for the ties. The former had loaded the ties on a car •on the company’s railway at Murray’s. It being a “non-agency” station, witness had to go to the next station to get a receipt or bill of lading, and was- accompanied to Beach by Silas King. When they arrived there the agent in charge of the company’s office at that point advised witness that the car-load of ties for which the bill •of lading was asked had been shipped from Murray’s by one Max Ehrlich, consigned to himself at Brunswick; that the car was then, •en route to that city via Waycross, the route then used by the defendant company, but that he (the station'agent) would endeavor to intercept the car before it'reached Waycross and get the matter straight; and that if witness would call the next day, the agent would give him a bill of lading or receipt for the ties, if he intercepted the car and got the matter straight. Witness called the next day on the agent at Beach and asked if the matter had been straightened ont; the agent said it was all right, and then and there issued to witness the bill of lading, which he thereupon attached to the draft drawn on the plaintiff. This draft, which was for the sum of $68.68, was afterwards paid. The market price of the ties in Brunswick was at that time about 44 cents each. The defendant called as a witness its station agent at Beach, who testified that he liad no recollection of the transaction; that Murray’s was a “non-agency” station, and upon cross-ties being shipped from there the conductor would give his receipt or a bill of lading for the shipment, or, upon application to the agent at Beach, a bill of lading covering a shipment of ties from Murray’s would be issued. A paper purporting to be a freight receipt issued at Beach Station, “11/18/1903,” to Elias Moore Jr., signed in the name of this agent and covering a shipment of 260 cross-ties consigned to the Howard Supply Company, at Brunswick, Ga., was introduced by the plaintiff, as was also the draft above referred to. The defendant company offered as a witness Max Ehrlich, who testified that he bought the cross-ties in question from J. and E. Moore at Murray’s, and shipped same from there on December (?) 17, 1903, consigned to himself at Brunswick, obtaining a receipt from the conductor and also a bill of lading therefor from the agent at Way-cross; and that while he (the witness) afterwards learned that the ties were claimed by Elias Moore Jr., and as having been sold by him to the Howard Supply Company, they belonged to witness under his purchase, as aforesaid, and he sold them for his own benefit. The court ruled out the testimony of this witness, and directed a verdict in favor of the plaintiff for the amount sued for. Exception is taken by the railway company to the exclusion of the evidence which was ruled out by the court, and error is also assigned upon the direction of a verdict and the refusal of the court to grant the company a new trial.</p>

Action for damages. Before Judge Carter. „ City court of Baxley. August 1, 1905. Mrs. Mary E. Johnson brought suit against the Atlantic and Birmingham Kailway Company for personal injuries inflicted by the sudden starting of the train upon which she was a passenger, after she had gone out upon the platform to alight at her destination. A verdict for $425 was rendered by the jury, and the defendant moved for a new trial.

<p>Certiorari. Before Judge Lumpkin. Eulton superior court. January 26, 1905.</p>

<p>Appeal. Before Judge Lumpkin. Fulton superior court. March 1, 1905.</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court. March 8, 1905.</p>

Attachment for contempt. Before Judge Lumpkin. Fulton superior court. March 21, 1905. Mrs. Alice M. Van Dyke filed her libel for divorce against her husband, E. A. Van Dyke. Pending the divorce suit and after the rendition of the first verdict, she applied for temporary alimony and expenses of litigation, including counsel fees. A rule nisi issued on the application, which, with the petition for temporary alimony, was personally served on the defendant.

<p>Appeal. Before Judge Lumpkin. Fulton superior court. February 28, 1905.</p>

<p>Motion to reinstate. Before Judge Calhoun. City court of Atlanta. April 8., 1905.</p>

Exceptions to auditor’s report. Before Judge Lumpkin. Eulton superior court. March 29, 1905. Mrs. Orr brought an equitable petition against Cooledge and others. The averments of the petition will be found in the statement of facts preceding the opinion when the case was before this court on another occasion. Orr v. Cooledge, 117 Ga. 195. It was then held that the petition set forth a cause of action, and that the court erred in sustaining a demurrer to it.

<p>Attachment. Before Judge Reid. City court of Atlanta. April 21, 1905.</p>

Trover. Before Judge Beid. City court of Atlanta. May 23, 1905. Wilson & Wallace brought trover against W. T. Comer, for certain lumber. On the trial of the case Wallace testified as follows: “He [Comer] told me to ship the lumber and file the bill of lading in the Lowry National Bank. I told him I didn’t do any business with any bank, ancl it would be trouble to me, and would be less trouble for me to ship the lumber to him and for him to mail me u check at once.

<p>The petition was subject to a general demurrer, which should have been sustained.</p>

Action for damages. Before Judge Reid. City court of Atlanta. April 13, 1905. The suit was against a common carrier, to recover the loss, sustained by the plaintiff on a car-load of cabbages shipped to that firm on September 21, 1900, by A. D. Freeman, of Rural Retreat, Ya., and delivered by the defendant company to the plaintiff on September 29 in a condition unfit for market, the cabbages being then damaged and decayed.

<p>Certiorari. Before Judge Pendleton. Fulton superior court. June 19, 1905.</p>

Action for damages. Before Judge Beid. City court of Atlanta. July 4, 1905. Miss Phelps (who, pending the action, by marriage became Mrs. McBride) brought suit to recover damages for a personal injury.

<p>1. When there are several eonneeting railroads of different companies, and the goods are intended to be transported over more than one, each company is responsible to its own terminus before delivery to the connecting l-ailroad, and the last company which received the goods as “in good order” is responsible to the consignee for any damage open or concealed done to the goods, and the companies must settle among themselves the question of ultimate liability.</p> <p>2. If a railroad company receives from another railroad company goods to be transported, and receipts for them as “in good order,” the company so receiving and receipting is concluded by the receipt from setting up as against the consignee that the goods were in fact not in good order when received.</p> <p>3. Goods received by a railroad company from a connecting line, to be transported over its own read, are, in the absence of a statement to the contrary in a receipt for the goods, presumed to have been received as “in good order,” but this presumption may be rebutted by proof showing that no receipt was given, and that the goods were in fact not in good order when received.</p> <p>4. A railroad company receiving goods from a 'connecting line may protect itself from the conclusive presumption arising from a receipt expressly stating that the goods were “in good order,”, or from a rebuttable presumption ai'ising from a failure to state the condition of the goods in a receipt, by a receipt setting forth an exception as to the condition of the goods. Any statement in the receipt negativing that the goods when received were in good order will relieve the company from a presumption that they were in such condition.</p> <p>5. The judge erred in the charge excepted to, and in the refusal to charge as requested; and the verdict was unsupported by the evidence.</p>

Injunction. Before Judge Pendleton. Fulton superior court. November 25, 1905.

■ Petition for injunction. Before Judge Pendleton. Fulton superior court. December 16, 1905.

<p>1.. This being the first grant of a new trial, and it not appearing that the verdict for the plaintiff was demanded under the evidence, the judgment awarding the new trial will not be disturbed.</p> <p>2. Where the grant of a new trial is affirmed, pendente lite exceptions will not be considered and passed upon, as the case is still pending in the court below.</p>

<p>Action for damages. Before Judge Russell. Clarke superior court. June 14, 1905.</p>

Action on insurance policy.. Before Judge Littlejohn. Sumter .superior court. February 24, 1905. The Bank of Commerce brought suit against the New York Life Insurance Company, and alleged: On August 28, 1900, the company issued a policy of insurance for $2,000, upon the life of John H. Kleckley. On November 21, 1901, Kleckley transferred and assigned the policy, for value, to the petitioner.

<p>Complaint. Before Judge Henderson. City court of Vienna. April 28, 1905.</p>

<p>Petition for injunction. Before Judge Littlejohn. Lee superior court. January 19, 1906.</p>

<p>Complaint. Before Judge Mitchell. Brooks superior court. May 3, 1905.</p>

<p>Action for damages. Before Judge Calhoun. City court of Atlanta. April 6, 1905.</p> <p>Mrs. Baker sued the street-railway company for damages. The petition alleged, that she boarded a car of the defendant at Grant park in the city of Atlanta, about 3.30 p. m., that she paid her fare and requested of the conductor a transfer to the Marietta-street line, and, in response, a transfer was given to her by the conductor. On arrival at the transfer point established under the rules of the company, she inquired how long she would have to wait for a Marietta-street car, and the conductor told her that the car was then approaching, and pointed to it. The plaintiff alighted, and immediately boarded the Marietta-street car, which was the first car on that line passing after her arrival. The conductor of this car approached plaintiff, and she gave to him the transfer slip which had been given to her by the conductor of the other car. He refused to honor the transfer, and demanded that she pay another fare, threatening to eject her if she refused to do so. This was all done in an insulting manner, the conductor charging her with having had the transfer since eleven o’clock a. m. The bell was rung in order to eject her, and she paid to the conductor a fare. He was proceeding to eject her at the time, an'd she paid the fare under protest. The car was filled with passengers, and the threats of the conductor that he would eject her were made in the presence of these passengers, among whom were a number of her acquaintances. She was humiliated and mortified, and her feelings greatly wounded. The petition avers that it was the duty of the defendant to carry her to her destination on Marietta street without'extra pay; and she prays for damages, actual, punitive, and vindictive. Damages 'were laid in the sum of $1,500. By amendment a copy of the transfer slip was attached to the petition as an exhibit. Upon this transfer appears the following: “This transfer is good for one continuous trip on the route punched, provided it is presented at the first intersecting point by the person to whom originally issued and used on the date and before the expiration of time punched and upon first car passing transfer point for route shown, and is otherwise subject to the rules of the company.” “This transfer is issued upon further condition, and holder by accepting agrees, that should any controversy arise as to its validity, holder will pay fare and call at companyi’s office for correction.” On the transfer appear the names of the streets on which the lines of the company run. The street on which the first car was boarded is marked by a punch. ' Marietta street is not so marked, but there is a punch mark on Magnolia street. The punch marks indicate eleven o’clock as the hour at which the transfer was issued. But this mark does not appear in the column headed “A. M.,” or in the column headed “P. M.” '</p> <p>The defendant filed an answer, in which it admitted some of the , allegations of the petition and denied others. The defense set up was in effect a denial of liability, on the ground that the transfer did not upon its face confer the right to ride. The allegations as to the alleged wrongful conduct of the conductor were all denied. The trial resulted in. a verdict in favor of the plaintiff, for $60. The defendant excepted to the judgment refusing a new trial.</p>

<p>Applying to the allegations of the plaintiff’s petition the familiar rules of law relating to the liability of a master for failing to warn a servant of abnormal and extraordinary risks attending the work he is called on to perform, the court below properly declined to dismiss the action on demurrer.</p>

<p>Action for breach of contract. Before Judge Lumpkin. Fulton superior court. April 3, 1905.</p> <p>J. P. Burdette brought suit, in 1903, against J. B. Crawford and Nancy Crawford, and alleged: In November, 1896, petitioner and defendants orally agreed that petitioner should buy a certain lot from defendants, for the sum of $150, payable at the end of ten years. Petitioner was to erect a threé-room house, and dig a well on the premises, and occupy the same, paying to defendants $16 per year as interest upon the purchase price until said sum was paid. Petitioner borrowed $50 from defendants to be used in the erection of the house. He built the house as agreed, and went into possession'of the premises. In October, 1897, petitioner, at the request of defendants, moved into another house, the property of defendants, and the house he formerly occupied'was rented, the rent being paid by the agent in charge of it to Crawford, in lieu of any rent from petitioner for the second house. In the spring of 1901, defendants “made it so unpleasant” for petitioner that he and his family were compelled to move away from the second house, and defendants refused to give him -possession of the house built by him. The house has been sold by defendants, and petitioner has been damaged in the sum of $300, the value of the house built by him, and interest on the same. By amendment Nancy Crawford, one of the defendants, was stricken. The defendant J. B. Crawford answered, denying all the material allegations of the petition, but admitted that he had sold the property in question. In an amendment to the plea this admission was withdrawn, and an allegation was made that he had never sold the property but still owned it. The trial resulted in a verdict for the defendant. The plaintiff moved for a new trial, and upon the refusal to grant this motion, he excepted.</p>

<p>Indictment for murder. Before Judge Lewis. Greene superior court. March 7, 1906.</p> <p>Findley was indicted for the offense of murder, alleged to have been committed upon James Bradshaw with a pistol. The evidence showed, in brief, as follows: The accused went to a house on the place of the deceased and caught his (the defendant’s) son, a boy about fifteen years old, who was there, by the collar and told him to come on home, and asked him why he hadn’t been- home. The deceased told the accused that he had hired the boy and he did not “reckon” the latter would go unless the accused got him by law. The accused said he “reckoned” he would, and that the law didn’t have anything to do with his son, that he thought he had a right to carry him. The deceased replied that the accused would have to go to law before he could get the boy. He struck the accused with his fist. A person who was present advised the accused to turn the boy loose. The accused said, “I am going on home. I am not going to have any fuss on your side.” The deceased replied that he had better go, and the accused said, “I am going.” The deceased struck him again, and he went on. The deceased acted as if he were going to get a rock from the ground, but the witness caught hold of him and advised him not to do it. The accused told the deceased that if he (the deceased) would come out into the road he (the accused) would kill him. The deceased asked a person near by to lend him a gun, but he did not get it. The accused said, “If you come out here in the road I will kill you.” A witness who narrated these facts then added, “And the last word I heard Mr. Bradshaw (the deceased) say was, ‘I am not going to;’ and about that time the pistol began to shoot.” When the deceased made this statement “he had not got to the road.” In another part of his testimony the witness said that it was not more than two or three minutes from the time the deceased struck the accused the second time until the latter commenced shooting. “Immediate^ after Mr. Bradshaw said, H am not coming there/ the shooting began.” When tlie accused made the statement as to the deceased coming out in the road, the witness supposed he meant the “big road.” The deceased did not have to go out into that road to reach his house. The accused did have to get into it to ■ reach his house. The witness also thought that the accused and the deceased were both in the road leading from the house of the deceased to the public road. The accused shot once, then waited a second, then shot four or five times. He then left. Later in the night he returned to the place where the deceased was lying, but not then dead. A witness heard the deceased say, “There is no need of that, uncle Eli.” The accused answered, “I thought you were dead. You haven’t treated me right.” The deceased was on the edge of the public road when he was killed. At another time the same witness said that the deceased was in the public road when he was killed. He was going towards the defendant’s house. In describing the wounds found upon him, the witness said, “I saw two wounds in the side, one in the stomach, and some kind of scar or shot on the head. His face looked like it was scratched. His forehead looked like he had been struck with something, may be a rock.” On re-direct examination the witness said that when the accused said, “If you come out in the road, I will kill you,” the deceased said, “That is all right; you can kill me if jrou want to;” and the accused went on. When he had gone a short distance he said, “Don’t come out in the road on me. If you do, I will kill you.” The witness added, “About that time Mr. Bradshaw got about even with my brothers.” It was then that he called for a gun but did not get it. He was shot on Wednesday night, and died the following Friday. The doctor came to dress his wounds about ten or eleven o’clock Friday morning. When the shooting began, the parties were about ten or fifteen feet apart. The accused lived about six hundred yards distant from the place where the homicide occurred, and not on the property of the deceased. On Thursday the deceased stated that he had been shot, and was-going to die. He said that the accused shot him for nothing. The same witness added that the deceased told him that the accused came back with his gun and said that he had come to finish the deceased, and the latter begged him not to do so. The defendant introduced no evidence, but made a statement. The jury found him guilty of murder. He moved for a new trial on the general grounds and: (1) Because the court adniitted evidence of the dying declarations of the deceased. This evidence was objected to on several grounds which made 'substantially the points that it did not appear that the declarations were made while the declarant was in a dying condition or was conscious of the fact, or of impending death, or that the fear of death, if any, continued after the declarations were made until the time of death, and that the hope of life did not return after such declarations were made. (2) Because the court charged as follows: “There is certain testimony before you touching certain declarations made by the deceased prior to his death, claimed by the State to be dying declarations. It is proper that I should call your attention as to what constitutes dying declarations; in order to make this evidence at all for your consideration, 3rou must be satisfied beyond a reasonable doubt that these declarations were made while the person was in a dying condition, and you must be satisfied further that these declarations were made by the person knowing at the time he was in a dying condition. If those conditions exist, they become what the law terms dying declarations; and if any declarations were made under such conditions as that, it is testimony to be considered with all the other testimony in the case. If either one of these did not exist, it would not be testimony to be considered at all.” The objections to this charge were: (a) It was too general, and did not inform the jury that dying declarations should be weighed with the greatest deliberation and scanned closely; (b) it did not inform them that if they found from the evidence that the slightest hope of recovery existed in the mind of the deceased at the time of the declarations, they should not be considered; (c) it did not state that a mere belief in or fear of death was not sufficient to make such declarations evidence; (d) it did not state that all hope of recovery must have been abandoned, and that a belief of the declarant that he would ultimately die would not suffice; (e) it did not state that the declarant must be actually' in extremis- — -in articulo mortis, and believe himself to be so; (/) it did not instruct the jury that declarations not relating to the cause of the death or to circumstances attending the transaction, or .declarations relating merely to matters of opinion could not be considered; (g) it did not caution the jury that passion, hatred, and feelings of like nature, and inaccuracy of ideas, and confusion attendant upon approaching dissolution are likely to color the declarant’s utterances. (3) Because the court erred in not charging the jury concerning the law of mutual intention to fight,. movant contending that the facts required it. (4) Because the court failed to state in the charge to the jury what equivalent circumstances, as set forth in the Penal Code, § 65, would reduce the crime from murder to voluntary manslaughter; it being contended that this principle of law, under the facts of the case, should have been elucidated by the court, as the evidence showed that the deceased was endeavoring by violence to keep the minor son of defendant away from the custody and.control of defendant. The court overruled the motion for a new trial, and the defendant excepted.</p>

<p>1. Where a motion for a change of venue was made on the ground of the existence of prejudice, bias, and feelings of animosity against the defendant in the county where he was indicted, and that an impartial jury could not be obtained there, and the evidence introduced on the subject was conflicting, this court will not reverse the exercise of discretion by the presiding judge in denying the change of venue, unless it has been abused.</p> <p>2. Where the evidence did not involve the defense of alibi as one of the issues in the case, there was no error In failing to charge on that subject, in the absence of a request so to do, although the theory of alibi might have been included, in the prisoner’s statement.</p> <p>3. Although the presiding judge at first instructed counsel for the defendant that they must read the law to the court and not to the jury, yet where he afterwards told one of them to proceed with the reading, and the decision under discussion was in fact read to the jury, this will not require a reversal.</p> <p>4. Where the competency of a child, twelve years of age, to testify as a witness was questioned, and the court examined her to test her competency, and it appears from her answers that the court did not abuse his ■discretion in holding her competent, this court will not interfere with such ruling.</p> <p>5. The indictment having alleged that the deceased was murdered by the use of a gun, these were material and essential averments, and the defendant’s -plea of not guilty put both of them in issue There was nothing in the evidence or the prisoner’s statement, nor was there any admission by his counsel, which authorized a charge to the effect that the defendant’s contention was that while there was a homicide, and while the deceased was killed with a gun and under circumstances which may show an unlawful killing, he was not the person who perpetrated the offense, and that he did not commit the homicide or fire the gun that killed the deceased; and that the jury would be relieved to some extent in their investigation of .the questions that ordinarily arise in criminal eases. This charge requires a reversal.</p> <p>5(as.) (Per Cobb, P. J., and Lumpkin, J.) We dissent from the ruling of the majority in the preceding note to the effect that the charge of the court required a reversal. This is the third conviction of the defendant of this offense. When considered in connection with the entire charge, the undisputed evidence introduced by the State, the fact that the defendant introduced no evidence, and the statement which he made on his own behalf, we do not think that the charge referred to requires a new trial.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. February 2, 1906.</p>

<p>Equitable petition. Before Judge Pendleton. Pulton superior court. February 2, 1906.</p>

<p>Petition for injunction. Before Judge Brand. Gwinnett superior court. March 7, 1906.</p> <p>The petition alleges, that the plaintiff is the owner of a certain tract of land, and that the defendant is a corporation chartered and organized under the laws of this State for the purpose of carrying on the business of generating electricity by water-power, to be used for the purpose of lighting towns and cities, supplying motive power to railroads and street-car lines, and supplying light, heat, and power to the public, with the apparent right to exercise the power of eminent domain for said objects; that the defendant, in execution of its purpose, has applied to the plaintiff for a right of way for its poles, towers, and wires across his said land, but plaintiff and defendant are unable to agree as to the amount of damages to be paid by the defendant, and the defendant is undertaking, by virtue of what it claims as its rights under an act of the General Assembly of the State of Georgia, approved December 7, 1897 (Acts of 1897, p. 68), to condemn a right of way across the said land, and to construct its towers .thereon, and is proceeding under the provisions of the Civil Code, §§4657-4686, to condemn to its own use the aforesaid easements in the property of the plaintiff, and has served upon the plaintiff its petition and notice, and has appointed its appraiser in accordance with said code provisions; that all of the proceeding upon the part of the defendant is unlawful, inasmuch as the said act of the General Assembly is unconstitutional and void, and in violation of article 1, section 1, paragraph 3, of the constitution of the State of Georgia; also' in violation of that part of the 14th amendment of the constitution of the United States which guarantees that no person shall be deprived of life, liberty, or property, except by due process of law; because the powers given in said act are not for such public uses as are contemplated by the constitution giving the right to take' private property for public uses; and because it is not the purpose or intent of the constitution to authorize corporations chartered by the superior court to exercise the right of eminent domain. The plaintiff contends that all powers of condemnation which the legislature has attempted to confer in excess of those mentioned in article 1, section 3, paragraph 1, oí the constitution are unconstitutional and void. He further alleges, that he has refused to appoint an assessor, and has refused to do anything to subject himself to the jurisdiction of the arbitrators; but that unless the defendant is restrained by the court, the defendant will proceed under said statute to have assessors appointed for and in behalf of the plaintiff, and will take said easements on plaintiff’s land unlawfully and contrary to plaintiff’s rights, etc. The prayer is for an injunction. In its answer the defendant, admitting its organization as a corporation and the purpose for which it was organized, as alleged in the plaintiff’s petition,» declares that it has not only the apparent but the actual right to exercise the power of eminent domain. It denies that the act of the General Assembly approved December 7, 1897, is violative of either the constitution of the State of Georgia or the constitution of the United States. It admits that the plaintiff refused to appoint an assessor, .but denies that the defendant is proceeding or would proceed to condemn the plaintiff’s land unlawfully or contrary to the plaintiff’s rights. It says that the legislature passed said act in the exercise of its discretion, pursuant to article 3, section 7, paragraph %% of the constitution, which in express terms gives the General Assembly power to make all laws and ordinances consistent with the constitution of Georgia and not repugnant to the constitution of the United States, which they shall deem necessary and proper for the welfare of the State; that said right of way was obtained in accordance with and in view of the said act of the legislature of 1897; that, after obtaining its charter, the defendant purchased and developed a large water-power in Hall county, upon and across the Chattahoochee river, and has completed the same, with the necessary electric appliances, and is therefore in readiness for use in serving the public, and is now serving the public by furnishing the municipality of Gainesville with electric lights for the purpose of lighting said city, and with electric power to the pumping station of said city for the purpose of supplying said municipality with water for the general use of the citizens, and is serving all the citizens of Gaines-ville desiring the same with electric light and power at a fixed, uniform, and reasonable rate; that it owns a number of other water-powers which it is now preparing to develop, so as to develop the resources of the State, and bring the immense and valuable water-powers of the upper part of the State of Georgia into available use; that the water-power already developed by it furnishes much more power, energy, and electricity than can be consumed in and about the City of Gainesville, and the defendant has obtained from the mayor and council of the City of Atlanta the right, power, and privilege for the full term of 30 years to occupy every-street, alley, and public place throughout that city for the purpose of placing thereon conduits, wires, conductors, cables, insulators, manholes, service-boxes, and all necessary appliances for the purpose of conducting, supplying, and distributing power, energy, and electricity for'light, heat, and power to the municipality and to, the public generally of said city and of Fulton county; that it has contracted with said city, in consideration of said franchises, to furnish the municipality throughout the entire 30 years with'arc lights and incandescent lights at.a fixed price, should the same be desired by the municipality; that it has also contracted with said-municipality, and, by the terms of the franchises thus granted, stipulates, undertakes, and contracts to furnish electric current for the purpose of light, heat, and power, to individuals, firms, or corporations within the city for a stated price; that the defendant is bound by law, and by the terms of its charter and the acceptance of said franchises, to serve both the municipality and all the public applying for said power, light,.and heat at such stipulated prices; that said prices are reasonable and at less rates than the charges now made for the same service in said city; that, in order to conduct its said electric energy from its power plant, it is necessary to transmit the same by means of high-tension wires placed upon towers 40 to 45 feet in height, so as to have the same far above reach of injury from said transmission of power, and to this end the defendant has purchased a right of way for almost the entire distance from said power plant in Hall county to the city limits of Atlanta in Fulton county, and is now erecting its said towers in a safe and permanent form, properly insulated, so as to place thereon said wires, so as to transmit said electric energy for the uses above mentioned; that the plaintiff has a narrow' strip of land a few hundred feet in width, and it is absolutely necessary to cross said strip with the wires of said defendant company, as it lies directly in the route of said tower line, and that it will be necessary to place upon said land two or three towers, and place upon said towers said electric wires, which, towers are 8 feet square at the base, and substantially erected, and will in no way interfere with the property of the plaintiff or, injure the same, except the space of 8 feet square thus occupied by the towers; and the defendant is willing and ready to pay a fair and reasonable price and has offered to do so, but, being unable to agree with the plaintiff as to the amount of compensation, has found it necessary to resort to condemnation proceedings; that there is throughout the State of Georgia immense natural water-power, and under the improved system of the generation of electricity, no State throughout the Union has greater interest than Georgia in the improvement of said natural advantages by the application of water-power to manufacturing purposes, and for the purpose of supplying light and heat to the cities of Georgia and to the public generally; that nature has denied to this State any large supplies of coal for purposes of fuel and of generation of power and light, and her citizens have to - depend almost entirely on shipments from other States; that the forests of this State are rapidly disappearing, and there is now left for the future generations only its immense water-power, to compensate for lack of coal and disappearing forests; that improved inventions now permit the transmission of power by means of wires for hundreds of miles at a very small and inappreciable loss in said transmission; that the legislature, realizing the advantages from said water-power, and in order properly and fully to carry out the spirit and meaning of the constitution, “to insure justice to all, preserve peace, and promote the interest and happiness of the citizen,” has declared that any corporation or individual owning or controlling any water-power shall be granted all the privileges and rights of eminent domain, to the end that these valuable water-powers, which have heretofore been running to waste, may be utilized, and not only by development render valuable service to the citizens of the State, but at the same time greatly increase the taxable property of the State; that none of this power or energy could be utilized by it for any private purpose whatever, but that it is generated and transmitted solely for the public; that it could not be disposed of in any other way than by the continuous line of wires from its said power plant to the place of consumption; that it is a power that can be used constantly for all future time, and all the public in the vicinity can participate in its use, but as soon' as the right to transmit the same by the continuous line of wires is denied, it becomes useless to its owners and valueless to the public; that it is necessary that the exercise of the power of eminept domain be permitted in order that the natural resources of the country may receive their fullest development, and the general welfare ■of the public be promoted; that the line for the transmission of said electric current embraces every element of public use found in the railway for transportation of passengers and freight; that said company is bound to serve the public; and that it pays to the State the franchise tax of a public utility corporation. The case was heard on the verified petition and answer, both being introduced as evidence. The sole question made was as to the constitutionality of the act of 1897. The court held that the act was •constitutional, and refused to grant an injunction. The plaintiff excepted. The act in question provides: Section 1. "Any corporation or individual owning or controlling any water-power in this State, or location for steam plant hereinafter mentioned, and ■operating or constructing or preparing to construct thereon a plant or works for generating electricity by water or steam-power, to be ■used for the purpose of lighting towns or cities, or supplying motive power to railroads or street-car lines, or supplying light, heat, or power to the public, shall have the right to purchase, lease, or condemn rights of way or other easements upon the lands of others in ■order to run lines of wires, maintain dams, flow back water, or for other uses necessary to said purposes, upon first paying just compensation to the owners of the land to be affected.” Sec. %. "If said corporation or individual does not, by contract, procure the easements, right of way, or other interest on property provided for in the first section of this act, they shall have the right to acquire or condemn the same in accordance with, and subject to, the provisions o’f the Code of 1895, from section 4657 to section 4686 inclusive, as embodied in the act of the General Assembly of this State, approved > December 18, 1894, as therein prescribed for railroad, telegraph, canal, mining, and waterworks companies.” Sec. 3. ■"The power given under this act shall not be used to interfere with any mill or factory actually in operation.” Section 4 repeals conflicting laws.</p>

<p>An accusation charging one with having violated the labor-contract law of 1903 (Acts 1903, p. 90), which on its face shows that the hirer has sustained no loss and damage, is subject to demurrer.</p>

Action for damages. Before Judge Hammond. Biehmond superior court. January 25, 1905. Goodin & Goodin, sawmill operators, sued the Southern Bailway Company for damages caused by delay in the delivery of certain sawmill machinery.

<p>1. As the petition set forth no cause of action against one of the defendants below, his demurrer thereto should have been sustained.</p> <p>2. Where one of the parties to an agreement of dissolution of a partnership discovers, within a few weeks after the settlement is effected, that he has been defrauded by the other, and immediately calls upon such other partner to rectify the wrong he has perpetrated, which the latter declines to do, the former is not guilty of such laches as will preclude a recovery, by waiting seven months before filing his petition for further accounting.</p> <p>3. A rescission of such a contract of dissolution, and the return of the property received thereunder, is not a condition precedent to an action for further accounting, brought by the injured party. Nor will the retention of the assets turned over to such injured party and the applieatiou of them by him to the indebtedness of the firm, which he assumed under the agreement of dissolution, be treated as a ratification by him of the terms of dissolution, when the other partner has been in no way injured thereby.</p> <p>4. An allegation in a petition to the effect that an item in a statement of a firm’s indebtedness, which the partner who had charge of the firm’s books (and who drew the statement to be used as a basis of a settlement of dissolution) represented to be the amount due by the firm in addition to the liabilities more specifically set forth therein, will, as against a demurrer, be treated, not as a mere expression of opinion by such partner, but as a statement of fact.</p> <p>5. The petition set forth a cause of action against one of the defendants below, and his demurrer was properly overruled.</p>

<p>Complaint. Before Judge Prior. City court of Hall county. August 23, 1905. .</p>

<p>Complaint. Before Judge Hamilton. City court of Floyd county. March 16, 1905.</p>

<p>1. The grounds of the special demurrer which were meritorious were met by appropriate amendment. The petition as amended set forth a cause of action, and the general demurrer thereto was properly overruled.</p> <p>2. Under the evidence which had been introduced by the plaintiff when he closed, the jury would have been authorized to find a verdict against the defendant; and the court did not err in refusing to award a nonsuit.</p> <p>3. One of the questions for determination by the jury being whether a machine at which the plaintiff was alleged to have" been injured was in or out of alignment, the fact that other machines of a similar character upon the same plane (the floor of the room in which the machines weTe situated) were not properly aligned was not irrelevant, as there was some evidence to show that there existed a general cause which might contribute to the disturbance of the alignment of all the machines upon that floor.</p> <p>4. Whether the plaintiff should be allowed, after the defendant has closed, to introduce testimony not in rebuttal of the defendant’s evidence, rests in the sound discretion of the trial court; and unless that discretion has been abused, this court will not disturb its ruling upon that question.</p> <p>5. Where in one portion of the charge to the jury the court correctly states one of the contentions of the losing party, the mere failure to state in immediate connection therewith, fully and plainly, other contentions of such party, does not constitute error. To show error it should be made to appear that nowhere in the court’s instructions were the contentions of the party complaining stated with sufficient fullness and clearness.</p> <p>6. The jury should be left free to determine, under proper instructions as ■ to the law, all questions arid presumptions of fact. This is their peculiar province; and when the court below instructed them that from one fact proved the plaintiff had the right to presume another material fact, this was an invasion of that province and such invasion was error.</p> <p>7. The trial court properly refused a request to give a charge which was not applicable to the evidence in the case.</p> <p>8. Except as pointed out, no material error of law was committed.</p>

<p>Action for damages. Before Judge Mitchell. Thomas superior court. April 20, 1905.</p>

<p>Petition for injunction. Before Judge Littlejohn. Dooly superior court. October 28, 1905.</p>

<p>Action for damages. Before Judge Parker. Glynn superior court. May 22, 1905.</p>

<p>1. An heir at law who knows that a private sale of certain property of a decedent is sought to be made, and who takes part in the accomplishment of such a result, and makes a quitclaim deed in order to effectuate that purpose, is in no position to invoke equitable relief to set aside a sale so made, on the ground that it is a private sale and not a public administrator’s sale.</p> <p>2. Where partners own real estate as tenants in common, and one of them dies, the others as surviving partners can not convey a good title -to his interest.</p> <p>3. A power of attorney, unless coupled with an interest, terminates upon the death of the maker. ■</p> <p>4. If it was sought to attack the action of a person signing a deed as .an attorney in fact, it should have been alleged either that there was such a power of attorney, or that there was npt; and if there was such a power, it should have been described with reasonable certainty, and the grounds of its invalidity should have been stated. This not being done, and no sufficient legal reason being stated for the failure, mere general references to the fact that the person did act under a power do not constitute any sufficient attack upon it.</p> <p>5. The general rule is, that, if there is administration on the estate of a decedent, the right to recover possession of property forming part of the estate is in the-administrator, and an heir at law can not bring suit unless the administrator consents thereto. But if an administrator commits a fraud upon the estate, or colludes with others to do so, this ■ rule would not prevent the heirs from bringing an equitable action against sueli administrator and the person charged to be in collusion with him, for the purpose of protecting the estate.</p> <p>6. If all the heirs made quitclaim deeds, covering their respective inter- . ests in real estate of the decedent, to a purchaser from the administrators, and one of them claimed a right to set aside or cancel the deed made by him, on the ground that it was unlawfully delivered, this would not authorize him to proceed to cancel the entire transaction and compel the whole property to be redelivered to the administrator for administration. He could proceed only for the protection of his own interest, and to the extent necessary for that purpose.</p> <p>7. The allegation of the existence of some debts is too vague and indefinite to affect the question, and the case made is that of a single heir who desires to set aside a sale and have the whole property returned to the administrators substantially for the benefit of all the heirs, in spite of the fact that they appear to have made quitclaim deeds to their interests and not to desire a restoration.</p> <p>8. Mere general allegations of fraud in an equitable proceeding are insufficient. It Is necessary that the plaintiff show by specification wherein the fraud consists.</p> <p>9. If a deed to real estate is signed and delivered to a depositary as an escrow, or to a special agent, with authority to deliver it to the grantee only upon a certain condition, a delivery to such grantee without the happening of such condition would not be lawful.</p> <p>10. A deed can not be delivered in escrow to the grantee therein or his attorney; but the allegations of the petition do not make a case of such delivery.</p>

<p>Certiorari, Before Judge Parker. Glynn superior court. June 12, 1905.</p>

<p>Action, for damages. Before Judge Eeid. City court of Atlanta. April 19, 1905.</p> <p>This case has heretofore been twice before this court. See 117 Ga. 106, 119 Ga. 837. On its last appearance here, the fact was pointed out that while the plaintiff alleged that the crown of the brick kiln which fell and injured him was constructed in a careless •and unworkmanlike manner, and in general terms charged the defendant company with having been guilty of negligence, yet the only specific act of negligence set forth in the plaintiff’s petition was that the supports upon which the top or arch of the kiln had been built were removed too soon^ and, as a result of this removal, the arch fell. 119 Ga. 845-846. Subsequently the plaintiff amended his petition by alleging, that the brick kiln was negligently constructed, in that the “buck-stay” rods were too low and touched the top of the arch; that they pressed down upon the top •of the arch and had to be “slacked off” and prized up in order to admit of the brick being placed upon the “center,” or wooden frame, and under these rods; that in consequence they did not bind together the walls of the kiln and strengthen the arch, as was their proper office, but weakened the arch and contributed to its downfall; and that the defendant had knowledge of these facts, or by the use of ordinary diligence could have had knowledge of them, whereas the plaintiff was in ignorance of these facts and had no way of ascertaining them. The plaintiff further amended by alleging, that the arch which fell and injured him was intended to span and did span a distance of about fifteen feet, and consisted of many tons of brick and mortar; that the construction of this arch was a work requiring great care and skill, and also a knowledge of the correct principles of arch construction, on the part of the person or persons planning and constructing it, of all of which the defendant had or should have had full knowledge; but although well aware of the skill and care and knowledge required, to safely construct the arch, defendant intrusted the whole planning and oversight of the construction thereof to its superintendent, J. D. Sloan, and its foreman, Charles Montgomery, who had no skill or knowledge in and about the construction of such arches, and who were incompetent to oversee such construction and insure the safety of the work; of which facts the plaintiff was ignorant, though they were well known to the defendant; and that to so intrust the construction of the kiln and arch, in and under which the defendant well knew many men -would be constantly employed, was gross negligence, and indicated an utter carelessness on the part of the defendant as to the safety of its employees. The last trial of the case resulted in a judgment of nonsuit, and the question now presented for decision is whether or not the plaintiff sustained by proof any of the specific allegations of negligence made in his pleadings as amended.</p>

<p>Certiorari. Before Judge Pendleton. Fulton superior court. July 26, 1906.</p>

Injunction. Before Judge Pendleton. Fulton superior court. October 13, 1905. The Southern Railway Company, the Atlanta and West Point Railroad Company, and the Central of Georgia Railway Company are each engaged in running and operating commercial railroads for the purpose, among others, of carrying passengers. Their passenger-trains enter and depart from the same depot in the city of Atlanta. Through that depot the travel and consequent handling of baggage is very great.

<p>1. In a trial befoi'e a municipal court the recorder or other presiding judge may take judicial notice of the ordinances of the city, defining offenses against the same.</p> <p>,2. Neither the Supreme Court nor any other court than the municipal court can take judicial cognizance of a municipal ordinance.</p> <p>3. When a petition for certiorari, brought to review a judgment rendered in a municipal court, assigns error upon the judgment of that court, on the ground that the same is contrary to the evidence, and the existence of the ordinance alleged to have been violated is admitted in the petition, but the provisions of the ordinance are not set out either literally or in substance, it is impossible to tell whether any error has been committed, and this is a sufficient reason for a judge of a superior court to refuse to sanction the petition.</p>

<p>1. If upon demurrer to a plea the court has decided as to the merits of the defense thus scfught to be set up, and stricken the plea, the judgment is conclusive, if the same or substantially the same plea is again offered. But if in rendering judgment upon a demurrer to the plea the court does not decide as to its merits, but strikes it on k ground of special demurrer that there is a mere general allegation of fraud without setting out any facts which constitute such fraud, this does not become res adjudicata so as to prevent a complete plea of fraud, with proper allegations, from being offered by way of amendment to the answer.</p> <p>2. The trial court not having passed upon the merits of the plea of fraud offered by way of amendment, but having rejected it on the ground that it was res adjudicata, this court expresses no opinion as to its merits.</p> <p>3. An honest mistake of law, as to the effect of an instrument, on the part of both contracting parties, when such mistake operates as a gross injustice to one and gives an unconscionable advantage to the other, may be relieved in equity, or under equitable pleadings, in a proper casé.</p> <p>4. The plea of mutual mistake, offered in this ease, as to the effect of the instrument given by the agent of the payee of a note to the • maker thereof at the time when it was made, by which the payee agreed “to receipt J. Gr. Dolvin [the maker] for note given me to-day,” was sufficient to withstand an objection in the nature of a general demurrer, although the plea may have contained certain allegations regarding and references to other papers and transactions, which did not constitute a good plea of mutual mistake as to them.</p> <p>5. Ratification involves knowledge of the facts, on the part of the person ratifying, at the time when the ratification is made; but if an agent exceeds his authority, the principal can not ratify in part and repudiate in part; he must adopt either the' whole or none.</p>

Equitable petition. Before Judge Spence. Sumter superior court. February 22, 1905. Wheatley, as receiver of 'the Bank- of Americus, brought an equitable petition against that bank and other defendants, alleging: The Bank of Americus was chartered by an act of the General Assembly, October 26, 1870. The capital stock was placed at $100,-000, with power to increase it to $500,000, divided into shares of $100 each.

<p>Action on bond. Before Judge Pendleton. Eulton superior court. April 14, 1905.</p>

<p>Certiorari. Before Judge Pendleton. Fulton superior court. March 29, 1906.</p>

<p>Indictment for unlawful sale of liquor. Before Judge Beagan. Butts superior court. March 19, 1906.</p>

<p>Indictment for unlawful sale of liquor. Before Judge Reagan. Butts superior court. March 19, 1906.</p>

<p>Indictment for murder. Before Judge Lewis. Baldwin supe-> rior court. March 7, 1906.</p>

<p>Indictment for arson. Before-Judge Holden. Taliaferro superior, court. March 31, 1906.</p>

<p>Indictment for murder. Before Judge Boan. Fulton superior court. March 30, 1906.-</p>

<p>Indictment for larceny. Before Judge Fite. Dade superior court. April 9, 1906.</p>

<p>Indictment for murder. Before Judge Holden. Burke superior court. March 31, 1906.</p> <p>According to the testimony, the accused with his young son drove his wagon to the front of a storehouse in a village, and there stopped. He was approached by T. J. Smith, who began a conversation in which Herrington, the accused, “got to talking pretty loud,” and J. B. Smith, a brother of T. J. Smith, came from another storehouse and stood on the other side of the road, opposite the other two men. Herrington said, “You boj^s just come here this morning for a row.” T. J. Smith said, “I didn’t come here for no row, and I haven’t got a thing in the world but my hands to hurt you with.”' Herrington said, “If you did not come here for a row, then go away and leave me alone.” He alighted from the wagon and started into the storehouse, and T. J. Smith said, “Hncle Sam [an old negro man] says that you cursed him for a son of a bitch twice and cocked a gun on him, and Phillip says that you wanted to shoot with him; and I don’t intend for no god dam son of a bitch to run over him.” Herrington went into the storehouse and came out with a pistol in his hand. T. J. Smith held up one hand and said, “Mr. Herrington, I told you I had nothing,” and turned. Herrington said, “Damn you, I will put it to you anyhow,” and shot T. J. Smith three times with the pistol, one of the shots taking effect in his side, one in his back, and one in his hand. The accused introduced no evidence, but made a long statement in which he gave an account of prior controversies and troubles that had arisen between the Smiths 'and himself, and showed, in substance, as follows; He was about to drive away in his wagon, when T. J. Smith came and asked him to go aside into the woods to talk. He refused to go, whereupon Smith cursed him and accused him of lying and stealing. He saw J. B. Smith coming, and knew the two Smiths were coining upon him for a difficulty, — -they had threatened him so much. He ran into the storehouse, where he stayed about five minutes. J. B. Smith, after cursing Herrington’s son and asking if he wanted to take it up, looked into the storehouse, pointed his finger at Herrington, and said, “God damn you, we have got you to-day.” Herrington, thinking' they had him hemmed in, and not knowing what to do, took his pistol in his hand and walked out of the storehouse to his wagon. The Smiths approached him from different directions, and he saw that they were going to attack him at the same time. T. J. Smith got in about three steps of him, and said, “You god dam son of a bitch, you can run over my brothers but you can’t run over me.” Herrington said, “You go away from me,” and by that time Smith was right on him. He took no aim with the pistol, but pulled the trigger as fast as he could, etc.</p>

<p>Indictment for enticing servants. Before Judge Martin. Wilcox superior court. March 31, 1906.</p>

<p>Indictment for murder. Before Judge Russell. Motion for new trial before Judge Roan. Jackson superior court. May 3, 1906.</p> <p>The testimony relied on for conviction went to show that Harris and Morris went to the house of a woman and insisted on being admitted; that she opened the door over the objection of Lester, the accused, who was'in the room, who said, “There is nobody coming in here to-night,” and fired his pistol several times, wounding Harris and killing Morris. The testimony of the woman and the statement of the accused tended to the effect that the shooting was done by Harris, and that the accused did nothing aggressive.</p>

<p>The act of the General Assembly approved August 6, 1903 (Acts of 1903, p. 43), amending the Penal Code, §151, defining robbery, by adding to that section “or the sudden snatching, taking, or carrying away any money, goods, chattels, or anything of value from the owner or person in possession or control thereof, without the consent of the owner or person in possession or control thereof,” did not create an independent and new statutory offense, nor abolish the distinctive element which differentiates the crime of robbery from larceny, i. e. violence. Robbery which is committed by a sudden snatching, as described in the amending act, is robbery by force, and is punishable as prescribed in the Penal Code, § 152.</p>

<p>Indictment for robbery. Before Judge Boan. Fulton superior court. May 5, 1906.</p>

<p>Indictment for murder. Before Judge Mitchell. Berrien superior court. May 11, 1906.</p>

<p>Indictment for murder. Before Judge Littlejohn. Crisp" superior court. April 28, 1906.</p>

<p>Where upon the hearing of an application for an interlocutory injunction a certain amendment to the petition offered by the plaintiff is disallowed and the injunction is refused, and exception is taken, assigning error upon the ruling rejecting the proposed, amendment, but making no assignment of error upon the ruling refusing the injunction, the writ of error will be dismissed.</p>

<p>In response to a scire facias to forfeit a criminal bond it furnished no-good ground of defense to allege that the solicitor-general who prepared the indictment and presented it to the grand jury, and signed it in his official capacity, was a second cousin of the accused (the principal in the bond) ; nor that the successor of such solicitor-general, who took the forfeiture nisi, was also related by affinity within the fourth degree to the accused, both being out of office and a new solicitor acting when the case was heard.</p>

Petition for injunction. Before Judge Lewis. Hancock superior court. March 15, 1906. In August, 1905, the General Assembly passed an act the title of which recited that its object was “to provide for the creation and operation of local tax district schools, for the levying and. collection of local tax by counties for educational purposes, for the laying off of counties in school districts, and for other purposes.” Acts of 1905, p. 425.

Injunction. Before Judge Reagan. Henry superior court. April 16, 1906. Upon the petition of the Southern Railway Company, the court below granted a temporary injunction to restrain the enforcement of a tax execution issued against that company by A. N. Brown, as secretary and treasurer of the board of trustees of the McDonough school district of Henry county, and levied by the sheriff of that county upon depot property belonging to the railway company.

Hendricks brongbt an action for damages against Mrs. J. W. Ballard. On the trial, which appears to have lasted about ten days, a verdict was rendered for the defendant. The plaintiff tendered to the presiding judge a bill of exceptions, which contained none of the evidence introduced except the substance of one set of depositions which was objected to.

<p>Indictment for assault and battery. Before Judge Wright. Chattooga superior court. March 28, 1906.</p>

<p>1. In view of the provisions of the act creating the city court of. Bainbridge, which declares generally that defendants in criminal cases in that court “may be tried on written accusation founded on affidavit,” without prescribing the particular officer or officers before whom the affidavit maybe made, an accusation may be framed upon an affidavit attested by a commercial notary public, by virtue of the authority to-administer oaths conferred upon such officers by the Political Code, § 503.</p> <p>2. The mere identity of name appearing from the signature of the attesting officer and that of the person who signed the accusation as prosecuting attorney will not warrant the assumption, as matter of law, that-the same individual acted not. only as a notary public but also in the. capacity of solicitor of the city court.</p> <p>3. Where one is charged with selling intoxicating liquors without a license-in a county where a license may be lawfully issued, it is unnecessary to allege in the accusation that the, illegal sale occurred within the limits-, of an incorporated town' or city having authority to grant a license, since a sale made in any part of the county, without first obtaining a. license from the proper authorities, would constitute a misdemeanor. Nor is it incumbent on the State to allege the name of the person to whom the liquors were sold or the precise consideration paid therefor.</p> <p>4. A sale of intoxicating liquors, although made upon the Sabbath day, may nevertheless be a violation of a statute making penal the sale of such liquors without a license, which is an independent offense from that of keeping open a tippling-house on the Sabbath day.</p>

<p>Indictment for assault with intent to murder. Before Judge Wright. Floyd superior court. March 14, 1906.</p>

<p>1. In an indictment for larceny from the house, a description of the thing stolen as “twenty-seven hundred dollars in money of the value of twenty-seven hundred dollars” is sufficiently full and accurate to withstand a special demurrer.</p> <p>2. Where an indictment contains two counts charging the defendant with the crimes both of burglary and of larceny from the house, a verdict finding him guilty of larceny from the 'house can not be deemed unwarranted by the evidence on the ground that the evidence also shows him to be guilty of the other offense of burglary.</p> <p>3. The evidence warranted the verdict, and no sufficient reason appears for reversing the judgment of the trial court.</p>

<p>Accusation of gaming. Before Judge Shannon. City court of Jeffersonville. April 19, 1906.</p>

<p>Accusation of stabbing. Before Judge Willis. City court of Columbus. April 7, 1906.</p>

<p>Indictment for blackmail. Before Judge Felton. Houston superior court. April 27, 1906.</p>

<p>Indictment for murder. Before Judge Rawlings. Laurens superior court. April 23, 1906.</p>

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. March 28, 1905.</p>

<p>Indictment for larceny. Before Judge Kimsey. White superior court. May 12, 1906.</p>

<p>Indictment for murder. Before Judge Holden. Hancock superior court. May 14, 1906.</p>

<p>Indictment for murder. Before Judge Parker. Charlton superior court. May 5, 1906.</p>

<p>Action on warranty. Before Judge Pendleton. Fulton superior court. September 18, 1905.</p>

<p>1. The rule that a pleading must be taken most strongly- against the pleader where the language used is ambiguous has no application where the pleader confesses that the pleading is ambiguous and seeks to amend it.</p> <p>2. The cause of action as originally set forth was subject to the construction that it was a suit for a penalty, but this construction was removed by the amendment.</p> <p>3. As the effect of the amendment was to reduce the amount claimed below the sum which would authorize an appeal to the superior court, there was no error in dismissing the appeal.</p>

<p>Certiorari. Before Judge Seabrook. McIntosh superior court. December 6, 1905.</p>

<p>Complaint. Before Judge Hammond. Richmond superior court. October 19, 1905.</p>

<p>Certiorari. Before Judge Seabrook. Effingham superior court. November 14, 1905.</p>

Action for damages. Before Judge Henry. Floyd superior court. March 20, 1905. The plaintiffs brought suit against the City of Rome for damages on account of the death of their father, alleged to have been caused by a defective street. They obtained a verdict for $1,500, but on motion of t]^e defendant, grounded on the insufficiency of the evidence to sustain it and on errors of law committed in the charge of the court, the verdict was set aside and a new trial granted.

Garnishment. Before Judge Crisp. City court of Americus. March 21, 1905. The plaintiff, under an execution against the defendant, sought to garnishee certain money due the latter by the Seaboard Air-Line Bailway. The defendant contended that the money was earned while he was in the employ of the railroad company as journeyman mechanic or day-laborer, and hence was not, under the Civil Code, §4732, subject to garnishment.

<p>Where an employee executed a written order drawn on his employer in favor of a payee therein named, directing the employer out of his future wages to pay certain sums monthly to the payee until the full amount specified in the order shall have been paid, and the employer is after-wards sued by the employee in a justice’s court for the full amount'of wages earned, the written order is not available to the employer as a set-off or as a defense against plaintiff’s demand, where it is not affirmatively shown that the order was accepted in writing, or that it has in fact been paid.</p> <p>The amount of wages earned by the plaintiff was not disputed by the defendant, and there was no evidence to support the defense. The verdict for the plaintiff for the full amount sued for was therefore demanded, and the court, upon the petition for certiorari, erred in disturbing the verdict.</p>

<p>Action for damages. Before Judge Hodges. City court of.' Macon. August 31, 1905. .</p> <p>The plaintiff brought her complaint against the railroad company for alleged tortiohs acts resulting in the death of her husbandi Both a demurrer and answer were filed, the latter being a general denial of all the allegations of the declaration, except that the defendant was a corporation. Most of the alleged defects set forth by the demurrer, being cured by amendment of the petition, the-demurrer was overruled. The verdict was for the plaintiff in the sum of $1,500. The defendant moved for a new trial upon the-general grounds, for certain alleged errors in the charge of the court, and upon various other specific grounds based on the insufficiency of the evidence to sustain the verdict. The motion was-overruled, and the defendant excepted to the overruling of the motion for new trial, and of the demurrer. The plaintiff alleged substantially, that her husband was a passenger on one of defendant’s. trains, and, before reaching his destination, was illegally ejected therefrom by the conductor while he was in a helpless condition, which condition rendered him unable to leave the track, such condition being known to the conductor, and he was left in a dangerous place "near a trestle and almost in the yards of the railroad company, and on that part of the track that said conductor knew was in constant use by the engines and cars of said company;” that a short time thereafter another engine of the defendant companjr passed along the same track where he was left, and ran over and killed him in the immediate vicinity of the place where he had been ejected; and the defendant was charged with negligence on account of both the killing and the ejection. The evidence for the plaintiff showed, in brief, that the deceased, who had been drinking, boarded the train on a certain afternoon at the depot in Macon and was carried by it over the river bridge on the outskirts of the city, but that just after crossing the bridge the train was stopped and the deceased was put off by the porter and flagman at the instance of the conductor. He had the appearance of one who had been drinking. To use the language of one of plaintiff’s witnesses: ‘TFlien they turned him loose, he was stumbling and falling about, and he crawled back up the bank and fell right across the stringer or iron, and lay there until the switch-engine came along.” It appears from other parts of the evidence, that, after being put off, the deceased was taken partially down the railroád embankment by the conductor and porter of the train, laid down, and held by the porter to prevent his reboarding the car. When he was released, "he could not get on his feet;” “it seemed he was trying to crawl;” he could not stand up, but, failing in his attempt to do so, he fell across the track where he remained until struck and killed by the switch-engine, which came by within three or four minutes. The defendant’s evidence showed that the deceased was ejected because he refused to pay fare, and that such ejection was carefully made, and that the place, where he was left was within 30 feet or more of a wagon road by which he could have'safely and conveniently made an exit; and that the deceased was not in such a helpless condition that he could not take care of himself, — one witness testifying that he could walk. There was also much testimony to show that the crew of the switch-engine by which deceased was killed were guilty of no negligence.</p>

<p>Action for damages. Before Judge Beid. City court of Atlanta. September 18, 1905.</p> <p>The suit was on account of an alleged injury from a fall .into an unlighted and unguarded excavation in a public street. The plaintiff obtained a verdict for $500, and the defendant excepted to the refusal of a new trial. One of the grounds was that the court erred in not declaring a mistrial on motion based on the following occurrence: One of the defendant’s witnesses, having been examined, was recalled by the plaintiff’s counsel at a later period in the trial, and was asked, “Did you have a claim against the city?” On objection the judge stated that he did not see how that was relevant; and plaintiff’s counsel said, “If she had a claim against the city and had been settled with, it would be admissible on the question of the credibility of her testimony.” The question was ruled out.</p>

Motion to dismiss the writ of error.. The plaintiffs in error instituted an action against certain parties defendant. The defendants filed a general demurrer, which was sustained by the court. The plaintiffs' excepted. There are eight parties named in the bill of exceptions as parties defendant.

Equitable petition. Before Judge Pendleton. Pulton superior court. October 3, 1905.

<p>Action for damages. Before Judge Beid. City court of Atlanta. September 16, 1905.</p> <p>The plaintiff brought an action for assault and battery alleged to have been committed on him by the defendant. The defendant, after filing a plea, offered an amendment to the effect that he had been acquitted in a criminal prosecution for the alleged assault and battery, and contended that this acquittal was a bar to the right to recover punitive damages. The court disallowed the amendment, and refused to admit in evidence the record of the proceedings in the criminal prosecution; to both of which rulings the defendant excepted. The plea, after denying the assault charged in the petition, set up a counter-claim for damages arising out of a different aásault which it is alleged the plaintiff, who was a street-car conductor, committed upon the defendant, when a passenger, under the following circumstances: The defendant boarded the car one night and requested the plaintiff to stop to let him off at Hampton street. This the plaintiff neglected to do, but instead carried him to the end of the run.' On the return trip, the defendant declared his intention of remaining on the car without paying a second fare until Hampton street was reached. He was told by the plaintiff that he would have to pay another fare or get off the car; and on his refusal to do either, the plaintiff, it is alleged, struck him on the head with a club or some other heavy instrument, knocking him off the car, and leaving him lying senseless in the street, etc. Under this pleading, the court charged: “If the conductor carrying the defendant took him beyond his stopping place, he [defendant] would not have the right . . to go to the end of the line and come back to his stopping-place, but his damage and his wrong would arise, if there was such, as soon as he was carried by his stopping-place, and his remedy would be to bring suit either against the company, the owner of the car in charge of the conductor, or against the conductor himself, for such damage as he may have sustained.” The defendant assigns such charge as error, for the reason that “he had a right to stay on the car until it reached Hampton street on the return trip, the company having contracted to carry him to that place;” and “further, that this charge did not submit to the jury his contention that he was not merely put off the car but was knocked off with a club or sand-bag, and that it was calculated to leave the impression on the jury that his refusal to get off the car justified the conductor in knocking him off with a dan- ' gerous instrument.”</p>

<p>Complaint. Before Judge Pendleton. Pulton superior court. October 9, 1905.</p> <p>George J. Vestner brought suit against S. H. Phelan, and alleged: “That S. H. Phelan of said county is in possession of the following personalty, to wit: 1st, One share of stock in the New Orleans Cotton Exchange, sai£ share being the same transferred in blank on the back thereof by said Phelan and placed by the said Phelan in the possession of Murphey and Company, and by Murphey and Company placed in possession of A. B. Baxter and Company, and by A. B. Baxter and Company placed in the possession of this petitioner, it being the same share of stock put in the possession of said S. H. Phelan by your petitioner on February 15,1904. • Also, a certain certificate of membership in the New Orleans Cotton Exchange, formerly in the name of S. H.'Phelan, and thereafter transferred by him to Murphey and Company, and by Murphey and Company transferred to A. B. Baxter and Company, and by A. B. Baxter and Company transferred to this petitioner, it being the same certificate of membership placed in the possession of S. H. Phelan by your petitioner on February 15, 1904. (2) Said personalty above described is the property of your petitioner. (3) The value of the share of stock aforesaid is five thousand dollars, and the value of said certificate of membership is also five thousand dollars.” (4) Said S. H. Phelan refuses to deliver said simare of stock and said certificate of membership to your’petitioner or .to pay him the profits thereof.” The petition concluded with a prayer for process. The defendant filed demurrers both general and special. The plaintiff amended his petition by striking the allegations that it was the share of stock and certificate of membership “put into possession of S. H. Phelan by your petitioner on February 15, 1904,” and inserting in lieu thereof it was the same share of stock and same certificate of membership “unlawfully taken from the possession of your petitioner by S. H. Phelan on February 15, 1904.” The amendment also alleged a demand by petitioner for the certificate of membership and share of stock. The amendment was allowed, the demurrers were overruled, and the defendant excepted.</p>

<p>Certiorari, Before Judge Pendleton. Fulton superior court. October 23, 1905.</p>

Attachment for contempt. Before Judge Pendleton. Fulton superior court. April 21, 1906. In June, 1900, Sandy Wardlaw and Jane Wardlaw, his wife, brought a petition to the superior court of Fulton county, reciting the following facts: In 1880, a certain lot of land on Foster street in the city of Atlanta was set apart to petitioners as a homestead.

<p>Affidavit of illegality. Before A. S. Bussey, judge pro hac vice. City court of Wrightsville. November 17, 1905.</p>

<p>Motion to dismiss the writ of error-;</p>

Injunction. Before Judge Spence. Baker superior court. February 12, 1906.