Volume 126 — Georgia Reports

Action for damages. Before Judge Seabroolc. Wayne superior court. June 17, 1905. 'The plaintiff brought her action against the Southern Bailway. Company, alleging that her husband in his lifetime was employed by the defendant as a brakeman, and while in the discharge of his duty in that capacity on one of the trains of the defendant he was knocked from the top of a car by the spout of a water-tank, which had been negligently left protruding over the track.

<p>Complaint. Before Judge Mitchell. Thomas superior court. July 13, 1905.</p>

<p>. Quo warranto. Before Judge Hammond. Eichmond superior court.' February 9, 1906.</p> <p>Milligan and others made application to the judge of the superior court of Eichmond county, for leave to file a petition in the name of the solicitor-general, for the writ of quo warranto against Samuel A. Fortson, requiring him to show by what warrant he was undertaking to fill the office of member of the City Council of Augusta. In response to a rule to that effect, Fortson made answer to the application; and after hearing argument of counsel and considering the answer of respondent and affidavits supporting the same, the judge refused to grant the applicants leave to file their petition for quo warranto and dismissed their cause. The following, from the written opinion filed by the judge below, presents a fair statement of the facts in the case: “In October, 1905, Fortson put tenants in possession of his house in Augusta for a term of one year; he, with his family and effects, moved into a house in Summerville which he rented for one year. There is no denial of these facts by Fortson, but in his answer he sets up these further facts: that for the past nine years he has been a resident of Eichmond county, and for four years a resident of the third ward of the city of Augusta; that his property is located, and returned for taxes, and taxes paid thereon, in the city of Augusta; that he is an officer of the Lombard Iron Works and Supply Company, whose manufactory is located in the third ward, and that there he spends the working hours of each working day; that on account of the illness of his wife he was ordered by his family physician . . to take her for a season, particularly for the winter months, to the Summerville heights; that he was obliged to rent a.house there for a year, because he could not rent one for a-shorter period; that he could not. financially afford to leave his house in Augusta unrented, yet it was impossible to rent it for a shorter period than one year; that, the rental by the year of the house in Summerville, and his house in Augusta, was not a matter of choice with him, but a condition forced upon him by the rental custom existing in the two places; that the sole object of his leaving his house temporarily in Augusta, and removing to one in Summerville, was the restoration of his. wife’s health; that this temporary sojourn in Summerville was experimental, and contingent upon his wife’s condition of health; that, should the experiment fail, it was his intention to return to Augusta and remain in the house of a relative in the third ward until he could secure possession of his own residence; that he declined to entertain a proposition made to him by . . a real estate agent, for the sale of his house, and that in renting it he reserved the right, and actually availed himself of it, to leave and to store therein certain household and personal effects which he did not need in the house rented in Summerville; that since his occupation of the house in Summerville, he has assumed none of the burdens nor exercised any of the rights incident to resident citizenship in that-municipality, but that on the contrary he has exercised all of the' rights and borne all of the burdens incident to resident citizenship, in the city of Augusta; that it is not now, nor has it ever been,, his intention to acquire a legal residence or domicile in Summer-ville, or to lose that which he had in Augusta; that the object and purpose of the temporary removal of his family was declared and' published to the voters of the third ward, who, with full knowledge of the facts, elected him to council.” The facts are not disputed.. Fortson moved to Summerville in October, and was elected the following December as member of-council for the third ward of the city of Augusta. Annexed to the application of the plaintiffs are copies of various portions of different ordinances, among them being the following: “The qualifications of a member of council are, that he shall have the same qualifications as a member of the House of Representatives of the State legislature (namely, that he shall be a citizen of the United States who has attained the age of twenty-one years, shall have been a citizen of the State of Georgia for two years, and a resident of the county of Richmond in said State for one year); that he shall be a citizen of the ward for which he is elected; and that he shall not hold any office or appointment under council, or be interested in any contract with council.” “Any member of council accepting any office or appointment, Federal, State or county, or'becoming interested in any contract with council, or removing from the city or from the ward for which he was elected, thereby vacates his seat in council; and if any member of council be absent from the city two months at any one time, without leave of council,' council may declare his seat vacant.” “That each of the wards in said city shall be entitled to three members of the city council . . [who] shall be residents of the ward they are designated to represent.”</p> <p>The case came to the Supreme Court upon exceptions of the plaintiffs to the dismissal of their application.</p>

<p>Complaint. Before Judge Burch. City court of Dublin. May 13, 1905.</p> <p>The Enterprise Stone Company sued Clark Grier on account for the price of certain artificial stone and slabs which the plaintiff sold and delivered to him. The defendant pleaded that he. purchased the material to be used in a front wall of a building about to be erected by him; that the plaintiff at the time of the purchase expressly warranted the material to be fit, proper, and reasonably suited for use in such wall; that it was so used, and proved not to be reasonably suited for such purpose, was totally worthless for the purposes fox which it was sold, and therefore the consideration for the account sued on had totally failed. On the trial it appeared that the material was purchased for the use stated in the defendant’s plea; that the stone had not hardened when purchased, and the defendant reported this condition to the plaintiff, and plaintiff assured defendant that it would harden properly, and that in the event it did not so harden within six months the defendant need not pay for the same. The evidence in behalf of the plaintiff was to the effect that the stone had properly hardened, and that it was “ first class in every particular.” On behalf of the defendant the evidence was, in brief, that the stone had never properly hardened, and would never do so; that the wall might stand for a considerable period of time, but on account of the softness of the stone would disintegrate faster than if built of brick or other hard substancé, and that the stone was not “at all suited” for the purposes for which it was used. There was a verdict for the plaintiff for the full purchase-price. The defendant moved for a new trial, on the grounds : (1) that the verdict was contrary to the law and the evidence. (2) Alleged error in the following charge to the jury: “If you find that the goods sued for were not reasonably suited for the purposes for which they were intended, that is, that they were’ totally worthless, you should find a verdict for the defendant.” The error alleged upon this charge was that it instructed the jury that they could not find for the defendant unless they found that the goods sued for were totally worthless, when they should have found for the defendant if the goods were not reasonably suited for the purposes for which they were sold. (3) That the court said in charging, “If you find that the goods sued for were reasonably suited for the purposes for which they were intended, you should find a verdict for the plaintiff.” (4) That the court erred in not charging the law of special warranty.</p>

Mandamus. Before Judge Felton. Bibb superior court. December 18, 1905. This was an application for a mandamus by Hamp Williams, against the United Brothers, alleged to be a corporation of this. State. It appears from the petition and amendments thereto, that a corporation called the United Brothers was created by an order of the superior court of Bibb county at the April term, 1883.

<p>Garnishment and claim. Before Judge Wright. Eloyd superior (court. July 11, 1905.</p> <p>It was admitted by the defendant in error during the trial of this case “that the George Foundry and Machine Works was not ¡a corporation, but that Mrs. C. M. Wyche conducted business under the name and style of George Foundry and Machine Works.” The '.evidence upon the trial further showed that Clark Brothers delivered to the machine works for repair certain machinery. After it was repaired they executed a mortgage thereon to secure payment of the charges for repair. The mortgage did not disclose the true name of Mrs. Wyche, but onty the business name above 'expressed. After default in the pajment of the secured debt, foreclosure of the mortgage was commenced. In this proceeding only the business name was employed in describing the plaintiff in foreclosure. Clark Brothers filed a plea of recoupment, and, after litigation, obtained a verdict in their favor for a sum in excess of the demand of the plaintiff. The real name of Mrs. Wyche still did not appear. ■ After obtaining the verdict and entering judgment and execution thereon, Clark Brothers sought to enforce the collection of the -same by garnishment. Mrs. Wyehe in her true name claimed the fund sought to be garnished and resisted the judgment upon which the garnishment was based, upon the grounds: (a) That it was void for the reason that in the mortgage foreclosure proceeding there was no legal entity as a party plaintiff. (1) That whether the judgment be legal or void against the George Foundry and Machine Works, it was not binding upon her individually, for the 'reason that she was not a party to the suit and was not bound. The ■ease by consent being submitted to the court without the intervention of a jury, it was in effect held that the judgment in favor •of Clark Brothers was void, and the garnishment proceeding was •dismissed. The plaintiffs in the garnishment excepted.</p>

<p>Complaint for land. Before Judge Gober. Milton superior' court. March 6, 1905.</p> <p>W. H. Hamilton brought an action ot ejectment against A. L.Bogers and his wife, Mrs. Julia A. Bogers, to recover land lot mum-ber 477 in the first district and first section of Milton county, con-taming 40 acres more or less. A. L. Bogers filed a disclaimer, and. the case proceeded against Mrs. Bogers, who set up title -to 30-acres, claiming under a deed from A. L. Bogers, executed in 1882; to Lowe & Rnox, and a chain of conveyances from Lowe & Rnoxto herself. She denied that A. L. Bogers ever had any interest in-any other part of the lot, and asserted that she held title to an-additional 4.88 acres of said lot, which she derived from Mrs. Sallie Moore, wife of Joseph L. Moore. The evidence discloses that-the plaintiff based his claim of title upon the following state of-facts: On January 21, 1897, A. L. Bogers executed to C. W. Sum-merour a deed to secure a debt, conveying the premises in dispute. Bogers having failed to pay the secured debt upon maturity, the five-promissory notes for $90 each, which represented the debt for which-the deed was given as security, were sued on by Summerour in a-justice’s court and judgment rendered for the plaintiff in each case.Executions were regularly issued, and Summerour executed to A. L.Bogers a quitclaim deed reconveying the property, and caused th& same to be filed and recorded. Thereupon levies were regularly' made upon the land under each fi. fa., and sheriff’s sale'thereof was made on April 7, 1903, at which the plaintiff became the purchaser at the price of $750. The purchase-money was- applied to the satisfaction of the justice’s court fi. fas. above referred to; and a balance of $80.88 was left in the hands of the sheriff and claimed by other creditors of Bogers. The plaintiff, at the time he bought, 'had no actual notice of any claim by Mrs. Bogers adverse to that of her husband. By notice to produce the plaintiff required Mrs. Bogers to bring into court a deed from said A. L. Bogers to her-. self, dated July 3, 1901, and recorded March 1, 1904, conveying to her, among other things, lot number 477. The deed recited, among other things, that “in consideration of the sum of two thousand dollars paid out and expended in my behalf by my wife, the receipt whereof is hereby acknowledged, and in consideration of her assuming and agreeing to pay the following debts, to wit, one to C. W. Summerour for the principal sum of $450, and one to John I. Teasley for the principal sum of $435, both of which are secured by mortgage deeds to the property hereinafter described [the land in dispute and other land]; also the justice court judgment in favor of Thomas L. Collins, deceased, . . against me, and the debt I owe to Lowe, . . I do hereby grant, bargain, sell, . . and convey to said Julia.Eogers the following described land.” There was no material conflict of evidence upon the foregoing facts. The defendant, in support of her claim of title to the 30 acres of lot number 477, introduced evidence to the effect that on May 5, 1882, by deed duly executed and recorded, A. L. Eogers conveyed to Lowe and Knox the land in dispute as security for a debt; that Joseph L. Moore paid the debt to Lowe and Knox, and from them took a deed duly transferring the property to himself, which was duly recorded; and that when this was done, it was agreed between A. L. Eogers and his wife that if she paid off the debt of her husband, which then amounted to $620, Moore should •convey to her the land in dispute. She proceeded to make payments at intervals, and on November 22,. 1895, as she claims, she made the Anal payment which discharged the debt. It was then attempted to have executed a deed from Moore to her, but on account of illness in the family of the person whom they sought to engage to draw the deed, it was not then drawn. On January 14, 1904, the deed was executed by said Joseph L. Moore, and duly placed upon record, •conveying to Mrs. Eogers the 30 acres in question. This deed, however, was made under compulsion; for it appears to have been executed in obedience to a decree of the superior court of Forsyth county, rendered in the case of Julia A. Eogers v. Joseph L. Moore .and A. L. Eogers. In that suit, which was filed to the February term, 1903, Mrs. Eogers alleged the facts as already set forth, and that after she had made the final payment to Moore on her husband’s debt, and after the failure to get the deed executed, her husband without her knowledge or consent, and disregarding his agreement with her, had, on January 21, 1897 (about two years after she had finished paying Moore), conveyed the 30 acres of land and •other land to C. W. Summerour to secure a debt of $450; that on November 16, 1899, A. L. Eogers had conveyed said land and another lot to M. G-. Duck to secure a loan; that this deed was transferred by Duck to John I. Teasley, who had obtained judgment upon the debt; that he caused said lands to be levied on to be sold; and although she had paid to Moore the sum of $620 by her own money, upon the faith of the agreement of her husband and Moore that Moore should convey the land to her, yet said Moore refused to convey. Whereupon she prayed the court for specific performance by Moore, and that the deeds to secure the debt be canceled as •clouds upon her title. Upon demurrer to that suit, all parties except A. L. Eogers and Joseph L. Moore were dismissed. In Moore’s answer to the suit he denied that he had ever agreed to make Mrs. Eogers a deed to the 30 acres, or that she had ever demanded one; but alleged, that on December 19, 1897, he bid a final settlement of all matters between them with A. L. Eogers, in which, after allowing Eogers credit for all money paid either by him or by his wife, Eogers was still found due and owing Moore $66.43, which was •credited, by direction of Eogers, on the note; that since that time credits for all other payments by the husband or wife had been duly made, but that, after all credits had been allowed, a balance was still due on the debt for which the land was held. It was prayed, that, should the jury find that there was a valid agreement as claimed by Mrs. Eogers and that the deed should be made to her, she be required to pay the balance so owing before he should be required to execute the deed. The jury, at the August term, 1903, found $150 due to Moore, and required him, upon the payment of that sum and costs of court, to execute a deed to /Mrs. Eogers; and it was so decreed. The deed hereinbefore recited from Moore to Mrs. Eogers was in obedience to this decree.</p> <p>On the trial of the present case, Moore testified as a witness; and his testimony as to amounts and dates of payments was in accordance with the claims made by Mrs. Eogers in her suit in Forsyth superior court, except that he claimed that there was a balance due him. She testified that she paid substantially all the money; and receipts were introduced from Moore to Mrs. Eogers, running through a number of years, for the sum of money which she claimed to have paid. Moore’s wife was a sister of A. L. Eogers. Under the testimony of Moore, A. L. Eogers had never owned any interest in lot 477, except the 30 acres before referred to. lie testified, that in the division of the estate of William Eogers, the father of Mrs. Moore and A. L. Eogers, the 30 acres referred to came to A. L. Eogers, and the remainder of the lot came to Mrs. Moore; that the remaining 4.88 acres, claimed by Mrs. Eogers, was obtained by her from Mrs. Moore by exchange made in 1895, for another piece of land not involved in the litigation. The deed to the 4.88 acres: bears date in 1903. Mrs. Eogers explained that it was not executed until about February, 1904.</p> <p>The court directed a verdict in favor of the defendant. The; plaintiff excepted, and assigned error on the following rulings: (1) “The plaintiff introduced in evidence deed book ‘G,’ page 531, of the cleric’s office of the süperior court of Milton county, wherein a deed from Lowe & Knox to Joseph L. Moore, dated March 10, 1884,. purports to have been recorded in said book on December 5, 1900. From said original deed book it appeared that said deed was recorded as one from Lone C. Knox to Joseph L. Moore, and that, nowhere in said record did it appear to be a deed from Lowe &, Knox to said J. L. Moore. This being shown the court, counsel, moved to rule out said deed and exclude the same from the jury, on. the ground that the same was not properly recorded. This the-court refused to do, and permitted said deed to remain in evidence before the jury.” (2) “Counsel for plaintiff moved to exclude from evidence the deed from Sara- L. Moore to Julia A. Eogers, dated February 29, 1903, purporting to convey the 4.88 acres in lot number 477, on the ground that the same purported to have been executed in the county of Milton and was attested by G. H. Barker, a justice of the peace, in the county of Gwinnett, it being alleged that the same was not properly recorded, and that there was no-proof of the execution of the original. The court refused to rule out said deed.” (3) The court erred, (a) in not submitting to the-jury to decide whether the debts secured by the deeds from A. L., Eogers to Lowe & Knox and from Lowe & Knox to J. L. Moore,, had not been paid off and discharged by A. L. Eogers with his own. money, and that the title thereto had become vested in said A. L.. Eogers. (5) In holding that the fi. fas. in favor of C. W. Summerour against A. L. Eogers and the judgments upon which thej were founded and the sale of the land in dispute under the executions were null and void, because the justice’s court had no jurisdiction of the notes upon which said judgments were founded, (c) In not holding that the plaintiff was subrogated to the title of C. W. Summerour to the premises in dispute, by reason of his having -bid off the land at said sheriff’s sale under said fi. fas., and having paid for the said land so bid off at sheriff’s sale a sum of money more than sufficient to pay off and discharge the indebtedness of said A. L. Rogers to Summerour, which was secured by the deed of Rogers to Summerour, and which indebtedness was paid-off and discharged with the money of plaintiff. (d) In not holding that the defendant was estopped by reason of the fact that she accepted a deed from A. L. Rogers to the premises in dispute, in which deed it was recited that a part of the consideration thereof was the payment by her of the indebtedness of- A. L. Rogers to C. W. Sunxmerour, secured by the deed of A. L. Rogers to said C. W. Summerour.</p>

<p>Application for alimony. Before Judge Wright. Floyd superior court. January 30, 1906.</p>

<p>Ejectment. Before Judge Spence. Decatur superior court. ■July 2i, 1905.</p>

<p>Trespass. Before Judge O’Steen. City court of Douglas. May 17, 1905.</p>

<p>Illegality. Before Judge Pendleton. Fulton superior court. May 17, 1905.</p> <p>On December 28, 1903, Wm. A. Wright, as comptroller-general of Georgia, issued a fi. fa. against the Southern Express Company to collect the principal sum of $2,609.90, claimed to be due the City of Atlanta, “under and by virtue, of the laws of the State of Georgia, providing for the taxation of corporations in this State for municipal purposes,” as its tax for the year 1903 upon the company’s tangible property in the city and the franchise pertaining thereto, as fixed by the returns made to the comptroller-general’s office in obedience to law. The Southern Express 'Company paid all the principal, interest, and costs due upon this fi. fa., with the exception of $250, after a levy thereof made on January 22, 1904. On April 4, the company filed an illegality, therein setting up the following facts and contentions: Before the issuing of the fi. fa., the company offered to pay to the tax-collector of the City of Atlanta the sum of $2,359.90 in full settlement of all taxes due for the year 1903, after deducting therefrom $250 paid as an occupation or privilege tax to the city for that year, and has since paid upon the fi. fa. a sum sufficient to reduce the amount claimed thereunder to $250. On January 22 the fi. fa. was levied on the company’s stables in the City of Atlanta, and it “is further proceeding illegally against the Southern Express Co., for the reason that the payments above made in law satisfy in full said fi. fa., [which] was issued for a greater sum than allowed by law.” The franchise tax assessed against the company in favor of the city for the year 1903 amounts to $1,886.9375, whereas the occupation or privilege tax assessed by the city against the company for that year, and paid by the company to the city prior to December 11, 1903, was $250; so that “the said fi. fa. for the franchise tax against the Southern Express Co. in favor of the City of Atlanta for the year 1903 should have been credited with the said sum of $250 paid by the Southern Express Co. to the City of Atlanta as an occupation or privilege tax.” By reason of the facts recited, “the said fi. fa. is in law fully satisfied and cancelled and no longer has any force or effect.”</p> <p>The City of Atlanta interposed a motion to dismiss the affidavit of illegality, based on various grounds, and, this motion being overruled by the court, filed exceptions pendente lite. On May 17, 1905, the case came on for a hearing before a jury. It appeared from the evidence that the Express Company, on June 25, 1903, paid to the city an occupation tax of $250, under an ordinance providing for its payment in advance “for the fiscal year ending June 30th, 1904.” After both sides had announced closed, counsel for the city “moved the court to direct a verdict against the illegality and in favor of the tax fi. fa., on the ground that the act of the Legislature of this State approved August 17, 1903, entitled 'An act to provide for the deduction on franchises due counties, cities, towns, and villages/ etc., did not apply to taxes for the year 1903, .admitting that the constitutionality of this law had already been determined adversely to its contention in this case.” The act referred to declares that whenever the franchise tax provided for by the act approved December 17, 1902, “is due and payable to or for the use of any [municipality] in which the tangible property is located, and it shall appear that the [taxpayer] affected has paid, or is liable to pay, to such [municipality] for its exclusive use, within the year for which taxes on or on account of the franchises is assessed, under any agreement therefor, or under any statute, ordinance, resolution, or by-law requiring the same, any sum based upon ■a percentage of gross receipts or any other income, or any occupation or privilege tax or charge, or any sum of money on account of •or as consideration for such franchise or privilege granted to or possessed by such [taxpayer], all amounts so paid, or liable to be paid, for the exclusive use of such [municipality], except the money paid for the ad valorem taxes due [it] on account of the tangible or physical property located therein, shall be deducted from the portion of the tax due such [municipality] on account of the franchise •owned or possessed by such” taxpayer; but all sums due under any •occupation or privilege tax or similar charge shall be paid to the municipality “entitled thereto, notwithstanding the passage of the franchise tax act hereinbefore referred to,” though, when so paid, such sums “shall be considered a payment on account of, or in full, •as the case may be, of the tax due such [municipality] on account •of the franchise; and . . if the amount so payable is greater than the amount of the franchise tax due” the municipality, then '“such payment shall be in full thereof; and if less, the difference in amount shall be paid, but no greater credit shall be allowed on account of such payment than the amount of the franchise tax due. .such [municipality] for the current year.” Acts of 1903, pp. 18,19.</p> <p>The presiding judge granted the motion made to direct a verdict in favor of the city. Thereupon the Southern Express Company ■sued out a bill of exceptions in which error is assigned upon the .granting of this motion; and the City of Atlanta sued out a cross-bill, therein making complaint of the refusal of the court to dismiss the illegality.</p>

<p>Appeal. Before Judge Pendleton. Pulton superior court. May 19, 1905.</p>

<p>1. Since the passage of the uniform procedure act of 1887, a plaintiff may-in one action against the defendant seek both legal and equitable relief. But in such an action he can not obtain the appointment of a receiver or the grant of an injunction ad interim under circumstances where such interlocutory relief could not be obtained prior to that act.</p> <p>2. Generally a creditor by note, which has not been reduced to judgment, and with no lien, is not entitled to an interlocutory injunction and the appointment of a receiver for his debtor’s property.</p> <p>3. The pleadings and evidence do not present such an exceptional case as to require such relief, or render its refusal error.</p> <p>4. The petition does not raise the distinct question whether the defendant company had an insurable interest in the lives of two of its directors; nor does it appear whether such question was distinctly passed on by the presiding judge.</p> <p>5. If there was an overissue of stock, this would not alone necessitate the appointment of a receiver for the company’s property at the instance of a holder of stock pledged to him as security for the debt of an original stockholder, prior to the additional issue.</p> <p>6. If a transaction is on its face usurious, it may be so declared as a matter of law. If on its face it is not usurious, but is claimed to be a device to cover up the charging of usury, a question of fact as well as one of law is involved. And this is especially true where it is in question whether, under the facts, the creditor who alleges that a transaction between the debtor and another creditor involves usury was in a situation to entitle it to set up the alleged usury.</p> <p>7. Under the pleadings and evidence there was no abuse of discretion in refusing the appointment of a receiver and the grant of an interlocu- ' tory injunction in this case.</p>

<p>Injunction and receiver. Before Judge Cann. Chatham superior court. October 11, 1905.</p>

<p>Trespass. Before Judge Parker. Wilcox superior court. January 30, 1905.</p>

Action for damages. Before Judge Reynolds. City court of Waycross. June 13, 1905. The plaintiff was injured by a train, and brought suit against the railway company for the damages sustained.

Action for damages. Before Judge Beid. City court of Atlanta. February 4, 1905. Tbe plaintiff brought an action for damages on account of an assault and battery, claiming punitive damages by reason of aggravation of the alleged tort. The defendant admitted the battery, but claimed that it was- justifiable, and made a counter-claim for damages on account of trespass to his property.

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

<p>Certiorari. Before Judge Pendleton.- Fulton superior court. March 28, 1906.</p>

Certiorari. Before Judge Lewis. Putnam superior court. March 21, 1906. J. N. Leonard was tried in the mayor’s court of the City of Eatonton, charged with the violation of a municipal ordinance, and was convicted. The sentence of the court was that he pay a fine of $25, and the cost of the case, or, in default thereof, that he be; confined at labor upon the streets, sidewalks, or public works of said city, for a term of sixty days.

Before Judge Brand. Gwinnett superior court. June 16, 1906. Yanderford was indicted for rape, and on tbe trial was convicted. The jury recommended him to mercy, and he was sentenced by the court to the penitentiary for the term pf twenty years. He made a motion for a new trial, which was overruled, and he presented a bill of exceptions which was certified, and at a later date filed.

<p>"Where, under the charter and ordinances of a city, the mayor has authority to punish one convicted of violating the municipal ordinances by imprisonment or compulsory labor on the public works, or by fine, a sentence directing “confinement on the streets” is not rendered unlawful merely because an alternative provision is added by which the defendant may be discharged at any time upon the payment of a fine.</p> <p>:(a) In'Such a case the reasonable intendment of the words, “confinement on the streets,” is that the defendant be confined at labor upon the streets.</p> <p>■(b) The judgment and sentence of the mayor are not violative of the charter or ordinances of the city.</p> <p>je) The judgment of the mayor is not void for uncertainty, or for any other reason urged.</p> <p>■(d) The detention of the petitioners in the habeas-corpus proceeding, being under the authority of the city officials and for the purpose of carrying into execution the judgment of the mayor, was not unauthorized by law, and the defendants were not, for any reason assigned, entitled to a discharge.</p> <p>•(e) Their subsequent conviction in the State courts, for offenses against the State arising out of the same transaction, will not affect the right of the city to compel them to perform the sentence imposed by the mayor.</p> <p>if) The judge trying the habeas-corpus proceeding did not err in remanding the petitioners to the service of the city in execution of the sentences imposed by the mayor, nor in refusing to discharge them upon bail pending the hearing of the writ of error.</p>

<p>Accusation of disturbing divine service. Before Judge Harwell. City court of LaGrange. April 10, 1906.</p>

<p>Accusation of violating local option liquor law. Before Judge Clements. City court of Eastman. April 31, 1906.</p>

<p>1. Where a juror by his answers to the questions propounded on the voir dire qualifies as competent, his disqualification is not established by the bare fact that he, together with some five hundred other persons, signed a petition addressed to the judge, requesting that a special term of court be convened for the purpose of trying the defendant, the petition reciting that petitioners feel that the facts and circumstances connected with the killing of the person slain by the defendant “more than amply justifies, the court in calling a special term of the court for the purpose above requested.”</p> <p>Atkinson, J., dissenting. Under the facts stated, the juror was not legally competent, and should have been discharged for cause.</p> <p>2. Neither the evidence nor the prisoner’s statement presented the theory of voluntary manslaughter; and it was therefore proper for the court to decline to instruct the jury on that grade of homicide.</p>

<p>1. Where, before a jury had been impaneled or a plea to the merits had been entered or the defendant had been put in jeopardy, a demurrer to an-accusation in the criminal court of Atlanta was filed, on various grounds,, there was no error in permitting a nolle prosequi to be entered upon the accusation, on motion of the solicitor, and a new affidavit to be made, and a new accusation to be framed upon it. Acts 1890-1, vol. 2, pp.. 437-8, sec. XI; Penal Code, §957.</p> <p>2. An affidavit is sufficient as a basis for framing an accusation in the-criminal court of Atlanta, although made before a commercial notary-public. Pol. Code, §503, par. 4; Wright v. Davis, 120 Ga. 670, 676; Acts 1890-1, vol. 2, p. 937; Shuler v. State, 125 Ga. 778.</p> <p>3. Whether such an affidavit would furnish a sufficient foundation for the issuance, by the judge of the criminal court, of a warrant to arrest the accused person, quere. Acts 1890-1, supra; Penal Code, §§882-885.</p> <p>4. Under the act creating the criminal court of Atlanta, an accusation which alleged that the prosecutor, “in the name and behalf of the citizens of Georgia,” charged and accused the defendant with the offense described, was sufficient, and was not demurrable on the ground that it should have stated that “the State of Georgia” charged and accused the defendant, or that it did not appear for what citizens the prosecutor acted. Whether or not it would have been preferable to have stated that, the State of Georgia, upon the information of the prosecutor, charged the defendant with the crime, the accusation in the form stated above was. not subject to demurrer. Dickson v. State, 62 Ga. 589 (3).</p> <p>5. While it is provided in section 11 of the act of 1891 that accusations in the criminal court of Atlanta shall be signed by the “solicitor-general,” yet when that section is construed in connection with sections 9 and 10, it appears that the term “solicitor-general” was loosely applied to the. solicitor of that court, and it was intended that accusations should be-signed by him and not by “the solicitor-general of the superior court.”'</p> <p>6. It may be the better practice for an accusation in the criminal court of Atlanta to state that it is based on the affidavit of some person; but where it appeared on the face of the record that an affidavit was made-by a named person, and immediately following it, bearing the same name, the prosecutor, “in the name and behalf of the citizens of Georgia,” charged and accused the defendant with the offense described in the-affidavit, the accusation was not demurrable, under the act creating that, court, because it did not in express terms state that it was based on the affidavit. Beck and Atkinson, JJ., dissent from this note.</p> <p>7. The general law touching the practice in county courts, and in what are-called “city courts” established on recommendation of the grand juries. (Pol. "Code, § 777, et seq.), does not apply to or control the practice in the. criminal court of Atlanta, which was established and its practice-regulated by the act of September 6th, 1891. Welborne v. Donaldson, 115 Ga. 563.</p> <p>8. A person brought to trial in-the court mentioned, under an accusation charging him with a misdemeanor, is not entitled to demand an indictment by the grand jury. Moore v. State, 124 Ga. 30.</p> <p>9. Whether one who arrested a person accused of the crime of gaming was a lawful officer or not, or whether the arrest was legal or illegal, will not furnish any ground for acquitting the accused when brought to trial for such offense. Special pleas setting up such matters as grounds for acquittal were properly stricken, the defendant being accorded all of the rights of defense to which he was entitled under the plea of not guilty.</p> <p>10. The provision of the act of September 6, 1891, creating the criminal court of Atlanta, to the effect that where the judge of that court issues his warrant, and the defendant is arrested under it, if he so desires he may have a “committal trial” before a magistrate, contemplates that this shall be done before the trial on the merits has been reached. It does not intend that, when the ease has been reached and called for trial on its merits, the defendant can cause the main trial to be stopped and postponed in order that he may first have a preliminary trial before a court of inquiry. The object of a commitment is to detain the accused, or place him under bond, to insure his presence when the case shall be called. But when the case is reached and the accused is placed on final trial, there is no further need for a committing trial.</p> <p>11. The evidence authorized the verdict; and there is nothing in any of the other grounds of the petition for certiorari which requires a reversal.</p>

<p>Indictment for assault with intent to murder. Before Judge Kimsey. Babun superior court. May 16, 1906.</p>

<p>Accusation of carrying concealed weapon. Before Judge Hodges. City court of Macon. June 16, 1906.</p>

<p>Certiorari. Before Judge Holdeu. Taliaferro superior court. March 3, 1906.</p>

<p>Accusation of being a common cheat and swindler. Before Judge Little. City court of Sparta. June 4, 1906.</p> <p>The accusation alleged, that the accused approached McCook and importuned him to sell him certain described furniture, representing to McCook that he (the accused) had made arrangement with Thornton whereby Thornton would furnish to the accused five dollars with which he would make the first payment to McCook on the furniture; that on the faith of this statement McCook sold the furniture to the accused for $12.25, of which $5 was to be paid on December 23, 1905, and the balance was to be paid in instalments of $2 per month; and that the statement so made by the accused to McCook, upon the faith of which McCook extended said credit to him, was utterly false, and was deceitfully made for the purpose of obtaining the credit and defrauding McCook, and thereby McCook was defrauded and damaged in the sum of $12.50. The testimony showed, that the accused, on December 13, 1905, went to the store of McCook, selected the furniture described in the accusation, and offered to buy it on credit, stating to McCook that he had made arrangements with Mr. Thornton to get the money, and would send McCook $5 by Henry Warren on December 23. McCook sold him the furniture upon this statement, taking his note for the price of it ($12.50), of which $5 was to be paid on December 23, and the rest in monthly instalments of $3. The accused in fact had made no arrangement with Thornton; and although he did seek and obtain employment of him about Christmas, and did obtain from him an advance of $15, he failed to pay any money to McCook, who -'finally sent for and took back the furniture. After verdict of guilty, the accused moved for a new trial on the general grounds and the following: “That the court erred in failing to charge the jury as to the effect of a certain note reserving title to the personal property sold to the defendant in this case; the theory of the defense being that the prosecutor did not trust the defendant upon any verbal statement by him made, but did not trust him at all, having reserved title by taking note with reservation of title.” The motion was overruled, and the accused excepted.</p>

<p>Accusation of cheating, etc. Before Judge Baines. City court bf Dawson. May 34, 1906.</p>

Indictment for simple larceny. Before Judge Burch. City .-court of Dublin. May 9, 1906. The defendant was indicted for the offense of simple larceny..

<p>Accusation of cheating, etc. Before Judge Freeman. City «court of Newnan. June 11, 1906.</p>

<p>Indictment for perjury: Before Judge Freeman. Coweta superior court. May 31, 1906.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. May 26, 1906.</p>

<p>Indictment for murder. Before Judge Mitchell. Lowndes superior court. May 24, 1906.</p> <p>Milton, Leonard, and Jesse Bawlins, brothers, and Alf Moore were indicted for the offense of murder; and J. G. Bawlins, their father, and Frank Turner were indicted as accessories before the fact. All were found guilty. Each of them except Alf Moore moved for a new trial, and upon a refusal of it each excepted and brought his case to this court. In each case, except that of Turner, the judgment was affirmed. The cases were carried to the Supreme Court of the United States, where the judgment of this court was affirmed. Milton, Leonard, and Jesse Bawlins then made an extraordinary motion for a new trial on the ground of newly discovered evidence since their conviction and the affirmance of the judgments in their cases, substantially as follows: They have learned that they can prove: (1) By their father, J. G. Bawlins, that he hired the negro, Alf Moore, to kill Carter, and that he will swear that his sons had nothing to do with the murder; also that their father made a confession to this effect since his conviction. (2) By a witness, T. S. Passmore, that the prosecutor, W. L. Carter, swore before the coroner’s jury, which held an inquest over the Carter children, “that he saw two white- men and two negroes there that night, and that Leonard Bawlins had nothing in the world to do with it and was not there, and ought to be released,” and that Leonard Bawlins was released by the officer and afterwards rearrested. (3) By Elbert Freeman, that Alf Moore, while confined in jail after his conviction, stated to Freeman “that he and Tim McDonald, and Benton or Bentley, or some such name, and old man Rawlins” were in the Carter murder. (4) The insanity of Milton Rawlins, and that two witnesses will swear that the mind of Milton Rawlins is unsound, and was at the time of the alleged offense. Filed with the motion were affidavits in support of it, and affidavits of counsel that they used due diligence and did not know of the evidence until after the trial, and that all except one fact in this new evidence was unknown to them until after the former motion was overruled. Of the witnesses who made affidavits in regard to the insanity of Milton Rawlins, in addition to stating their opportunities for observation, one of them deposed: “I am satisfied that he is not a person of sound and disposing mind and memory, but his mind has been and is seriously affected, and was at the time of the alleged crime in the bill of indictment.” Another testified that, "from his actions and conduct generally, I am of the opinion that there is something wrong with his mind, and that he is not of sound mind and memory and was not at the time of the commission of the alleged offense and prior thereto.” A third testified that "judging from his actions and conduct generally, and especially at times, it is my judgment that he is not of sound and disposing mind and memory, but that his mind is seriously affected and was so affected at and prior to the commission of the alleged crime.” The State introduced, in opposition to the motion, an affidavit of the sheriff, who stated that he had had occasion to talk frequently with Milton Rawlins; that deponent had never observed or known anything in him in the slightest degree to indicate that he was crazy, or that he was not of sound and disposing mind; that Rawlins had been confined in jail since the time of the commission of the crime, and that his conduct before and after the commission of the crime was under the observation of deponent, and that while confined in jail his conduct was that of any other prisoner; and that the attorneys of Rawlins, who constantly visited him in jail after his arrest, could have been apprised of his insanity if it existed. The motion was overruled, and the defendants excepted.</p>

<p>Indictment for keeping gaming-house. Before Judge Seabrook. Chatham superior court. May 26, 1906.</p>

<p>1. The indictment, properly construed, did not charge two offenses, but simply an attempt to commit the offense defined in the Penal Code, § 520.</p> <p>2. When, in an indictment for obstructing the track of a railway, ownership of the track is laid in a name which imports a corporation, a presumption arises that it is a corporation, and it is not necessary, even as-against a special demurrer, to allege the fact of incorporation.</p> <p>3/ “To make one criminal act evidence of another, a connection between, them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to. identify the person of the actor by a connection which shows that ha who committed the.one must have done the other.”</p> <p>4. The demurrers to the presentment were properly overruled; but the error committed in admitting evidence of other crimes with which the accused did not appear to have been connected requires a reversal of the judgment.</p>

<p>Indictment for bigamy. Before Judge Felton. Bibb superior court. June 19, 1906.</p>

<p>Indictment for assault with intent to murder. ■ Before Judge Littlejohn. Crisp superior court. May 24, 1906,</p>

Indictment for unlawful sale of liquor. Before Judge Over-street. City court of Sylvania. April 7, 1906.

<p>1. When that portion of the charge of the judge relating to the presumption arising from the failure to produce -witnesses is considered as a whole, it was calculated to produce upon the minds of the jury an impression that such a presumption would arise when the accused introduced no testimony and relied alone upon his statement, if it appeared that there was an eye-witness to the transaction who was accessible. When so considered the charge was erroneous, and a new trial should have been granted oh that ground of the motion complaining of the same.</p> <p>2. Except as above indicated, no error was committed at the trial.</p>

<p>Indictment for murder. Before Judge Gober. Cobb superior ■ court. March 26, 1906;</p>

<p>Certiorari. Before Judge Pendleton. Fulton superior court. February 1, 1906.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. June 22, 1906.</p>

<p>Certiorari. Before Judge Rawlings. Bulloch superior court.. November 3, 1905.</p>

Equitable petition. Before Judge Hammond. Richmond superior court. September 30, 1905. The facts alleged- in the petition (which was dismissed on demurrer) made the following case: Among the property of the estate of George J. Howard, deceased, were 280 shares of the capital stock of the Howard & Willet Drug Company, of the appraised value of $18,200, which were regularly offered at public sale by the administrator, Turner G. Howard, and were bid off by Charles,.

Petition for injunction. Before Judge Spence. Worth superior court. December 18, 1905.

Buie. Before Judge Norwood. City court of Savannah. January 28, 1905. The Savannah Grocery Company brought a rule against Hor-Tigan as sheriff of the city court of Savannah, to compel him to pay over'to it some two hundred and odd dollars alleged to be in his hands and subject to an execution in its favor.

<p>1. Under an execution issued from the city court of Elberton, the sheriff of .that court may levy upon and sell land.</p> <p>2. An allegation in an affidavit of illegality, that the plaintiffs in fi. fa. “have taken no-steps in the superior court to declare the trust, of which, this property is the whole, executed,” was too vague, indefinite, and uncertain to be considered, and was properly stricken upon demurrer.</p> <p>3. Where the sheriff referred to in the first headnote serves upon the defendant a writ which was issued from the city court, and signs the-entry of service thereon “Sheriff,” it will be presumed that he acted, as sheriff of that court.</p> <p>4. The clerk of the city court of Elberton or his lawfully appointed deputy should personally sign each process issued from his office, or specially authorize some one to sign the same for him in his presence,, in order that the writ be perfectly regular. But if the process attached, to a petition in a suit in that court was signed in the clerk’s name by an assistant in his office, to whom the clerk had given “general authority to sign [the clerk’s] name to any paper necessary to be signed by” the¡ clerk, during his absence, such process is not void, but merely irregular,, and should be attacked in limine. It can not be taken advantage of by affidavit of illegality.</p>

<p>The fact that a bank which is the owner of a note upon, which there is a surety is, at its maturity, indebted, upon general deposit account, to the principal upon the note in a sum larger than that due upon the note, and fails to exercise its right to set off the amount of the note against this deposit indebtedness, and allows tile deposit to be cheeked out by such depositor, does not discharge the surety on the note.</p>

Complaint. Before Judge Littlejohn. City court of Americus. July 8, 1905. Suit was brought by James A. Davenport on a promissory note for .$642.90, payable to the order of the maker, J. M. Summerford, and indorsed in blank by him and by L. K. Bagley.

<p>1. It affirmatively appears from tlie testimony of the plaintiff, that while operating a shingle machine a block from which he was sawing became fastened, and that without stopping the machine he placed his hand upon the block and pushed it to the saw, knowing it to be dangerous to do so; that he could by stopping the machine with the lever have removed the block without danger to himself; and that he elected to pursue the dangerous method which resulted in his injury. Held, that a nonsuit was properly granted.</p> <p>2. Under such conditions as described above, it was no excuse for the negligence of the plaintiff that others were accustomed to do the same thing.</p>

<p>Trespass. Before Judge Mitchell. Colquitt superior court. April term, 1905.</p> <p>Edward Burns brought an action against George A. Horkan, G. F. Taylor, and C. E. Martindale, to recover damages alleged to have been sustained by him “by a willful trespass in cutting the sawmill timber on” a described lot of land in Colquitt county, “and removing and disposing of said timber.” The petition also made the following allegations: The timber a¡t the time of such cutting and removing was the right and property of the petitioner. In 1896 he purchased all of the timber on this lot, suitable for sawmill purposes, from J. L. Carman, who derived title from W. C. Vereen, who had a good and valid title to the land. On or about February 8, 1901, defendants Taylor and Martindale, “with perhaps others, unknown to petitioner, were conducting a sawmill business in Colquitt county, under a charter, as the Standard Sawmill Company, but . . Taylor and Martindale were the leading and controlling persons and managing officers of said concern, and . . since that time they have ceased to do business as such corporation, the same having been dissolved as petitioner is informed,” and Taylor is conducting business on his own account at the old site of the company’s business, and Martindale in Thomas county, Georgia. “About the date above stated the said Horkan, in furtherance of a scheme previously planned, did combine and confederate with the said Taylor and Martindale, as the controlling persons of said corporation, to take said sawmill timber on said lot . . , the same being then and there the property of petitioner, without lawful warrant or authority, and in doing so acted as willful trespassers.” In furtherance of this scheme Horkan executed “a paper to said company, in which he pretended to convey to it the sawmill timber on said lot of land.” About “said date in February, 1901, and after-wards during that year,' the said defendants, by their servants, agents, and employees, acting on said pretended conveyance, did enter upon and proceed to cut and remove the said sawmill timber ■from said lot of land;” and by so doing injured and damaged the petitioner in the sum of $20,000, which sum was the value of the timber, cut into lumber, at the time it was cut and disposed of, without deduction for defendant’s labor and expense. During the year 1901 the defendants cut flom said lot, of the sawmill timber thereon, which was the property of the petitioner, “five hundred thousand feet of unusually large and valuable sticks of timber worth ■at the mills where cut the sum of fifteen dollars per thousand feet, making a total value of seventy-five hundred dollars; . . the cost of cutting the same was not exceeding fifteen hundred dollars, so that the net value of this lot of said timber of plaintiff’s cut by defendants, after deducting the value the defendants added by cutting it, was six thousand dollars at the time it was cut, and at the time of bringing this suit. Besides “this lot of very large timber, the said defendants did about the same time and afterwards cut from said lot other timber and convert the same into lumber, the value of which, after deducting the value of the labor put upon it by defendants, was, at the time it was cut, and at the time of bringing this suit, at least the sum of six thousand dollars.” So, “even if defendants were unintentional and innocent trespassers, they have damaged and become liable to petitioner in the sum of twelve thousand dollars, by reason of the cutting and taking away of petitioner’s said timber from said lot of land.” ■</p> <p>Horkan and Taylor filed separate demurrers to the petition. Each demurrer alleged that the petition showed no cause of action .against the demurrant; that it showed that he was not a party to .any o'f the acts complained of, and failed to show that he was ever in possession of any of the timber in question, or lumber derived therefrom. Horkan’s demurrer was also upon the grounds, that no sufficient abstract of title was set out in the petition or attached thereto; and that the suit was barred by the statute of limitations, having been brought more than two years after the acts complained of. Pending the demurrers, the plaintiff amended his petition, by alleging “that said timber was standing timber growing upon said land.” The court sustained each of these demurrers and dismissed the petition as to each of these defendants. The plaintiff excepted.</p>

<p>1. A party to a parol contract which would ordinarily fall within the-statute of frauds, who has so far performed the same as to render it a. fraud for the other party to repudiate the agreement, is not prevented, by the statute from recovering damages for its breach.</p> <p>2. 'When one of the parties to a contract places himself in a position where it is beyond his power to perform his obligation thereunder, no tender of performance by the other party, who is able and willing to perform, is necessary. So in contracts where the conditions as to performance by the respective parties are concurrent, and one is willing and ready and offers to perform, and the other refuses to perform, the right of action is complete.</p>

<p>1. In an action of trespass quare clausum fregit for damages arising fx-om the cutting of timber, -where the plaintiff makes it affirmatively appear by lxis pleadings and proof that the defendant claims title from no other source than from the grantor of the plaintiff, and that from such common grantor the plaintiff holds the better title of the two, and he further makes proof of the cutting of timber without his authority, and the value thereof, it is erx-oneous for the court, after such proof has been submitted, to grant a nonsuit.</p> <p>'2. The fact that the defendant claims under the common grantor is an admission sufficient to raise a presumption of title in the common grantox-, and, taken in consideration with other evidence sufficient to show in the plaintiff better title from the common grantor than the claim of the defendant, was sufficient to show such title in the plaintiff as would px’ima facie entitle him to recover for damages to the freehold.</p>

<p>Where there was undisputed evidence of actual possession by the location and operation of a sawmill upon a part of a tract of land held under color of title for a part of the statutory prescriptive period, followed by a sale of the land and a removal of the mill, then an interval of nine months, and a resumption by the purchaser of actual possession by residence of tenants and the cultivation of fields thereon, continued for a term sufficient to complete the statutory period,, in the absence of affirmative proof of other acts indicating an intention to abandon possession, it was not erroneous, upon the question of whether or not there was a prescriptive title to the entire tract covered by the deeds, for the court to direct a verdict in favor of the prescription.</p> <p><a) Nor was it necessary to submit the question to the jury where it appeared that one of the tenants at one'time consulted counsel with a view of setting up adverse title to the lot, it affirmatively appearing that the tenant did not remove from the premises so as to be in a position to set up an adverse possession, and further that the tenant did never in fact set up adverse claim to the premises.</p> <p><1>) Nor was it necessary to submit the question to the jury because the tenant returned for taxation and paid taxes on the property, it affirmatively appearing by uncontradicted evidence that the same was done under an arrangement with the landlord, and in consideration of being allowed the use of the property.</p>

Complaint. Before Judge Parker. Camden superior court. March 15, 1905.

Motion to set aside judgment. Before Judge Parker. Glynn superior court. May 26, 1905. Memory, the official stenographer of the Brunswick circuit, took down in shorthand notes the testimony and charge of the court in the case of Olsen v. Seaboard Air-Line Eailway, tried at the May term, 1904, of Glynn superior court, these services being rendered by direction of the presiding judge and at the request of counsel for both parties.

<p>Certiorari. Before Judge Lumpkin. Fulton superior court-March 15, 1905.</p>

Appeal. Before Judge Pendleton. Fulton superior court. May 8, 1905. The plaintiffs brought suit in a justice’s court.to recover $63.50' as damages which resulted to them by reason of the following facts: “'Your petitioners shipped over defendant company’s road certain goods to Peri, Florida, consigned as per bill of lading to Callaway <& Truitt.

<p>Appeal. Before Judge Pendleton. Fulton superior court. .May 4, 1905.</p>

Exceptions to auditor’s report. Before Judge Kimsey. Rabun superior court. July 31, 1905.

Equitable petition. Before Judge Littlejohn. Muscogee superior court. July 22, 1905. Tbe Eagle & Phenix Mills filed its petition against the Muscogee Manufacturing Company, alleging substantially as follows: The .State of Georgia, being the original owner of all the land in the Coweta Beserve in Muscogee county, in the year 1828 set aside 1200 acres for a town to be called Columbus, caused the tract to be divided into streets, lots, and .commons, and offered lots for sale.

Eviction. Before Judge Spence. Dougherty superior court-April 4, 1905.

<p>Petition for injunction. Before Judge Mitchell. Berrien superior court. August 3, 1905.</p>

<p>Ejectment. Before Judge Littlejohn. Stewart superior court. April 18, 1905.</p>

Injunction. Before Judge Parker. Clincli superior court. June 26, 1905. Walton Ferguson, Jr., brought a petition for injunction against J. A. Middlebrooks, J. D. Middlebrooks, II. J. Finney, and J. T. Finney, composing the firm of J. A. Middlebrooks & Co., to restrain them from cutting any timber on lots of land 110, 183, 184, and 185, in the 13th district of Clinch county.

Action for damages. Before Judge Parker. Glynn superior court. July 15, 1905. On January 27, 1905, Mrs. H. B. Bandolph filed a petition against the Seaboard Air-Line Bailway and the Brunswick and Birmingham Bailroad Company,.in which she sought to recover from the defendants damages for the homicide of her husband, which was alleged to have occurred on February 3, 1902, and to have been caused by the negligence of the defendants.

<p>Petition for injunction. Before Judge Parker. Ware superior, court. February 3, 1906.</p>

Petition for injunction. Before Judge Parker. Ware superior court. January 20, 1906. Brown and others filed their petition against the Atlantic and Birmingham Railway Company, seeking to enjoin the defendant from tearing up, removing, or abandoning a section of one of its lines of road about nineteen miles in length.

Trover. Before Judge Reid. City court of Atlanta. April 27, 1905. The plaintiffs asserted title to certain personal property consisting of pants, sack-coats, overcoats, and jackets, eacli being tagged by certain numbers, and alleged that the defendant was in possession thereof.

Certiorari. Before Judge Pendleton. Fulton superior court. July 26, 1905. Mauek, for the purpose of foreclosing a materialman’s lien upon realty belonging to Eosser and Blalock, brought a suit against them and Kellam, a contractor to whom he furnished material for improving the property. The suit was brought in the justice’s court of the district of Fulton county wherein Eosser resided and the realty in question was located.

<p>Injunction. Before Judge Roan. DeKalb superior court. January 1, 1906.</p>

Action for breach of contract. Before Judge Eite. Whitfield superior court. June 1, 1905. The plaintiff corporation sued the defendants for a breach of contract.

<p>Petition for specific performance. Before Judge Lewis. Lanrens superior court. January 25, 1905.</p>

<p>1. Since tlie passage of the aqt of September 26, 1883 (Acts 1882-3, p. 104, Civil Code, § 3782), the statute of limitations, relatively to the debts of a decedent, is suspended during the period of time between his death and representation upon his estate, if such period does not exceed five years. Whether the decision in Johnson v. Johnson, 80 Ga. 260, was rendered in view of this act can not be definitely determined, as the act was not referred to by the court. If it was so rendered, the ruling there made would go no further than holding that this act was not applicable to a case in which the period of time between the death of a debtor and representation taken upon his estate had completely expired before it was passed. In the present case even the debt itself, sought to be enforced against the estate of the decedent, was created long after the act df 1883 was passed, and the time between the death of the debtor and representation upon her estate was clearly covered by it. Consequently, in holding that the statute of limitations, relatively to this debt was suspended while the estate of the deceased debtor was unrepresented, we have not found it' necessary to overrule the decision in Johnson v. Johnson, supra.</p> <p>2. Where one of the joint obligors upon a promissory note gives a mortgage to secure its payment, and, after his death, the holder of the note and mortgage institutes a proceeding in the nature of a foreclosure of the mortgage, a surviving co-obligor upon the note is a competent witness, in such proceeding, to prove the execution of such mortgage, if, at the time he testifies, the -note as to him has become barred by the statute of limitations.</p> <p>3. Where a husband signs his wife’s name to a mortgage purporting to be executed by her, in her immediate presence and by her express request and direction, the effect of such signature is the same as if she had signed the mortgage herself.</p> <p>4. A seal is not necessary to the validity of a mortgage, even upon real estate; and a mortgage is valid, as between the parties thereto, without any attesting witness and without being recorded.</p> <p>5. As the plea of coverture is a personal privilege, available only to the feme covert or her privies in blood or estate, a mere creditor of a married woman, even in case of her insolvency, can not attack a mortgage executed by her, upon the ground that it was given to secure the debt of her husband and son.</p> <p>6. Section 2727 of the Civil Code, which provides that an unrecorded mortgage is “postponed to all other liens created or obtained prior to the actual record of the mortgage,” refers only to liens created or obtained during the lifetime of the mortgagor.</p>

Complaint. . Before Judge Willis. City court of Columbus. August 19, 1905. The plaintiff instituted a suit declaring upon an open account and exhibiting a bill of particulars.

Ejectment. Before Judge Sheffield. Early superior court. October 11, 1904. On March 12, 1903, T. B. Harriss and A. D. Harriss brought ejectment against S. T. Howard for lot of land number 143 in Early county.

Action for damages. Before Judge Henderson. City court of Vienna. June 28, 1905. The plaintiff brought action on account of personal injuries received in a railroad wreck. He alleged that when making a run as conductor of a freight-train of the defendant, the caboose, in which he was riding, struck a low joint in the rails, was thrown, from the track, and wrecked, causing him to be permanently injured by being thrown against the iron ladder in the car and ruptured.

<p>Action on insurance policy. Before Judge Spence. Decatur superior court. May 11, 1905.</p> <p>The Chattahoochee Lumber Company brought suit against the Home Insurance Company of New York, to recover $20,000 upon a policy of insurance. It was issued by the defendant on January 17, 1903, for a term of one year, and covered certain property belonging to the plaintiff. It contained the following provision in regard to cancellation: “This policy shall be cancelled at any time at the request of the insured; or by the company by giving five days notice of such cancellation. If this policy shall be cancelled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rates; except that when this policy is can-celled by this company by giving notice, it shall retain only the pro-rata premium.” The vice-president of the company lived in Savannah, where it apparently had its office, and the president lived in the suburbs of the city. On February 19, 1903, Graves, the agent of the insurance company, wrote a letter dated at Bainbridge, .addressed to the lumber company at Savannah, which contained the following: “I am to-day in receipt of your check for $1,410, the amount of the premiums on insurance policies recently issued to you on the Donalsonville sawmill property. I deeply regret to inform you, however, that I have this day received a visit front the traveling inspector for the Home Ins. Co., and he advises me that in the present condition the Donalsonville property is not acceptable as insurable property, as the hydrants are in bad repair .and some of the hose is old and worn out; also that the slab-pit is not protected by a wall from the mill, and in times of high wind the property is in great danger from a general conflagration. This necessitates my asking you to return the policies for cancellation, which I sincerely regret. I trust, however, that in the near future the fire protection at this mill will be improved, and that you will again let me handle the line for you. ^ enclose you check for ■$1,292.50, the amount of the return premium due you. You see you have been insured against loss for a little more than a month, so that the companies are due one-twelfth of the premium. Assuring you that I regret very much that the companies have found it ■expedient to take this step, I remain,” etc. This was received by the vice-president of the lumber company on the morning of February 21. He dictated to a stenographer, and signed during the .same morning, a reply in the following terms: “Yours of the 19th, enclosing check for $1,292.50, received, reqnestting us to return policies; and we herewith enclose same, which is perfectly satisfactory with us. We can not blame you or the insurance companies for not continuing the risk on the mill property in the condition it is in.” The president knew of this reply, and approved it.</p> <p>Two policies were held by the plaintiff, the one sued on, and another which it is Dot material to describe here. The vice-president delivered the check to the secretary and treasurer, who delivered the policies to the stenographer during the forenoon. The check was drawn on a bank in Bainbridge. It was payable to the-order of the lumber company, and was endorsed by it and deposited in the bank, and the company was given credit for the amount. It was paid by the Bainbridge bank a few days later. About two-o’clock of February 21, the property caught fire and burned until it was destroyed. A telegram was received by the lumber company about four o’clock p. m., informing it of the fire. The vice-president asked the secretary and treasurer for the policies. He testified that his purpose was to hold them if they had not been mailed. The secretary and treasurer replied that they had been mailed or sent off. The latter testified that he so stated because he had delivered the policies to the stenographer, who he supposed had sent them; that late in the afternoon he learned that they hacL not been mailed; that in passing through the stenographer’s office he saw a large envelope, asked him if those were the policies, and was surprised to hear him say they were; that he (witness) tore open the envelope, obtained the name of the company, and handed the policies back to the stenographer, though he did not tell the-latter not to mail them; that the vice-president did not know at that time that they had not been mailed, nor were they mailed after the fire with his knowledge; that it was a misunderstanding on the part of the witness that he allowed them to be-mailed; and that he supposed that, having received the return premium, it did not make any difference. The stenographer testified that he mailed the letter and policies about 8 :00 or 8:30 p. m. The defendant moved for a nonsuit, which was refused. Its counsel announced that it had no testimony to introduce. Thereupon the court directed a verdict for the plaintiff, and the defendant excepted.</p>

<p>1. Where a pupil has been refused admission to a public school because of his failure to comply with an alleged illegal requirement of the trustees of the school, the remedy of his parents is by mandamus to compel the proper officer of the school to admit him, and not by injunction to restrain the enforcement of the alleged illegal requirement.</p> <p>2. Before a party is entitled to relief he must show injury, or at least that injury is threatened. The mere allegation by the parent of a schoolboy that the officers of a public school have passed an illegal regulation, which, if enforced, would work injury upon his son, does not entitle him to an injunction against such officers.</p>

<p>Action for breach of warranty. Before Judge Mitchell. Colquitt superior court. April 6, 1905.</p>

<p>Appeal. Before Judge Mitchell. Brooks superior court. May 2, 1905.</p>

<p>1. There being in the pleadings of both the plaintiffs and the defendants contentions as to the title of the property in controversy, and evidence adduced by both to support their contentions; and there being also ample prayers for the adjudication of title, the court below did not err ■in passing upon the question of title and in entering a decree in regard thereto.</p> <p>2. While in an executor’s deed to certain described lands, made in 1842,* the grantor could not so limit the warranty, by the use in the covenant of warranty of such words as “as executor,” as to prevent the same from binding him individually, still when the limitation or restriction was placed upon the title warranted, it will be given effect according to its terms.</p> <p>3. “Exceptions to an auditor’s report ought not to refer the court from one part of the record to another to discover what was ruled, and to other and various parts of the record to search for evidence relating to that particular point, but the exception should be complete in itself.”</p> <p>4. Where an auditor’s report, with all of his rulings of law and findings of fact, and the exceptions to the rulings and findings, were referred to the judge of the superior court, “to be by him determined without the intervention of a jury, and with the full right to decree upon said findings as though they had been based upon the findings of a jury,” and by consent order “the judge of said court was empowered and author- ■ ized, without the intervention of a jury, to pass upon all questions of law and fact in said case,” and the court rendered a decree in one portion of which it was broadly and generally found and decreed “That all of the findings of fact and of law in said auditor’s report, except as herein specifically overruled or sustained, and except as the same may be in conflict with this decree or any portion thereof, are hereby approved and made the judgment and decree of the court,” no question that this coui't will undertake to determine is raised by a general exception to this portion of the decree, as such an undertaking would require a search through various parts of the report of the evidence, the auditor’s findings and rulings, and the various exceptions thereto, in order, by comparison and elimination, to ascertain which of the exceptions to the auditor’s rulings and findings were sustained or overruled, and which were “in conflict with this decree or any part thereof.”</p> <p>5. There was no error in admitting in evidence the deed the admission of which is complained of in the eighth exception of the bill of exceptions.</p> <p>6. Under the pleadings and evidence in the case, the court did not err in granting an injunction against both plaintiffs and defendants.</p>

<p>Petition for. in junction. Before Judge Parker. Charlton supeTior court. September 25, 190.5. .</p>

Equitable petition. Before Judge Pendleton. Fulton superior1 court-. May 12, 1905.

Practice in the Supreme Court J. L. Anderson, as administrator with the will annexed of O. H. Freeman, deceased, sued W. J. Wyche for the recovery of two described parcels of land situated in South Macon, Bibb county. Three separate defenses were filed to the action, viz.: (1) Title in the defendant under a sale of the land in question for State and county taxes due by the estate of Freeman. (2) Title by seven years adverse possession under written evidence of title.

Practice in Supreme Court. Cox sued the Macon Bailway and Light Company on account of personal injuries alleged to have been received, while alighting from a trolle3r-car, because of the negligence of the defendant’s employees. The jury found for the defendant, and Cox excepted, not to the final judgment of the court, but to various portions of its charge to the jury, and brought the case here by direct bill of exceptions which contains fifteen grounds.

Action for damages. Before Judge Hodnett. City court of Carrollton. Jnne 5, 1905. Chambers sued the Southern Railway Company for damages.. Objection was made to the petition as originally filed, npon the-ground that it set forth two separate and distinct canses of action,, and that each was not set forth in a separate count. This defect was remedied by an amendment, and the petition as amended containecl two counts.

<p>1. Where, in an action to enjoin a trespass upon its right of way, one of the supports of the railroad company’s title is prescription by twenty years adverse possession, it is error for the court to instruct the jury that if the company “opened out” and “cleared up” the right of way to the full width claimed twenty years prior to the institution of the action under consideration, it acquired title thereto unless the defendant’s grantor moved in the matter within the time allowed by law; the error being that the charge in effect instructs the jury that by simply opening out and clearing up the right of way the railroad company acquired title whether it immediately or subsequently abandoned the whole or any part of the property or not.</p> <p>2. But where a railroad company, under the power given it in its charter, lays out a right of way two hundred feet wide and maintains that width by keeping.it clear of trees and undergrowth, its successor in title acquires color of title to the full width of two hundred feet, although the instrument of conveyance merely describes it as the grantor’s “right of way.”</p>

Indictment for unlawful sale Of liquor' Before Judge Little-john. Crisp superior- court. May 5, 1906.

<p>Conviction of manslaughter. Before Judge Kimsey. Stephens, superior court. June 15, 1906.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. June 12; 1906.</p>

<p>Certiorari. Before Judge Pendleton. Fulton superior court. November 10, 1905.</p>

<p>Action for damages. Before Judge Eoan. Claytou superior court. November 8, 1905.</p>

<p>A contract of sale of growing trees concerns an interest in realty, and. under the Civil Code, § 2693 (4), must be in writing. A receipt in these-words, “Received of A. Corbin $50.00, as part payment on Dekle and Boyd tracts of timber,” signed by the vendor, does not comply with the statute, because of the omission of the purchase-price. Nor will partial payment of the purchase-price, unaccompanied by possession, except the case from the statute.</p>

<p>When an action is brought for the recovery of land, feither under the common-law form or under the code, the plaintiff must recover, if at all, upon the state of his title as it subsisted at the commencement of the suit. Evidence of any after-acquired title is wholly inadmissible.</p>

<p>1. Where goods were sold for cash, to be paid for on delivery, the prepayment of the price being a condition precedent of the sale, the mere fact that the buyer obtained possession did not operate to pass the title to him, and notwithstanding such possession the title remained in the seller, the purchase-price not having been paid.</p> <p>2. Where the buyer knew that the seller intended to sell for cash only and possession was obtained for this reason alone, the buyer can not refuse to pay the price and retain the goods upon the ground that he is entitled thereto upon a prior agreement with the agent of the seller, when such agreement was not disclosed to the seller at the time possession was obtained, and in no way assented to by him. '</p> <p>3. The charge of the judge failed to give the defendant the benefit of a theory of the defense which was sustained by the evidence introduced in his behalf, and a new trial should have been granted.</p>

<p>Injunction. Before Judge Reagan. Henry superior court. May 12. 1906.</p> <p>Upon, the application, of Pattillo the line around his land was ■run and marked by processioners. To their return Martin filed a protest on the ground that they, instead of following the real line dividing his land from that of Pattillo, had run a new line .so as to put about one and a half acres of his land on Patillo’s side of the line so run. Upon the trial of the issue thus made a .jury found in favor of Pattillo, and judgment in his favor was ■■entered, which has not been reversed or set aside. Martin disregarded the processioners’ return, and repeatedly entered on the one .and a half acres, tearing down a fence built by Patillo, cutting and removing timber, etc. An injunction was granted, restraining him from further trespassing; and he excepted, contending that the ■court erred in admitting in evidence the record of the processioning proceedings, over his objection that it was not a muniment of title and did not show possession; and in not allowing him and ■other witnesses to testify to the length of time and character of his possession of the land in dispute; and in granting the injunction, which operated as a writ of possession and a mandatory order, when the plantiff had an ample and adequate remedy at law by .action of ejectment.</p>

<p>Application for alimony, etc. .Before Judge Lewis. Morgan ¡superior court. April 26, 1906. ' '</p> <p>• The parties are farm-tenant negroes, poor, industrious,' and frugal. They were married in December, 181Í, and have eight ■children, the wife being over fifty years old. In November, 1903, ■she became sick, and the husband employed a woman named Susie Wilson to live on the premises and to cook and do other domestic ¡and farm work. In March, 1905, the wife moved into a separate house on the farm, where she remained for nine months, and then left the premises. In March, 1906, the husband brought a libel for divorce, alleging cruel treatment of the wife in refusing to cohabit with him. In the following month she brought a petition for temporary and permanent alimony and counsel fees, for the custody of the minor children, and for injunction against the disposition or encumbering of the husband’s property. She alleged that the husband had often beat ■ and otherwise maltreated her, cursing her and heaping other indignities upon her, and allowed Susie Wilson to abuse and worry her; and that he had kept and treated this woman as if she were his wife. These allegations were denied by the defendant, who contended that he was without fault. The testimony at the hearing for temporary alimony was conflicting. The judge refused the prayers for temporary alimony, injunction, and custody of children; and the plaintiff excepted.</p>

Petition for injunction. Before Judge Mitchell. Brooks superior court. April 14, 1906. On March 7, 1906, Mrs. Mattie Hart filed her petition against Lewis, Shore & Company, a partnership, alleging that she was the owner of a described parcel of land, and that the defendants without authority were proceeding to cut the timber thereon. She prayed that the trespass about to be committed be enjoined.

<p>Indictment for unlawful sale of liquor. Before Judge Over-street. City court of Sylvania. April -7, 1906.</p>

<p>Indictment for running freight-train on Sunday. Before Judge Fite. Dade superior court. March 23, 1906.</p>

<p>Certiorari. Before Judge Beagan. Monroe ■ superior court. .April 21, 1906.</p> <p>Tlie defendant was tried and convicted by tbe mayor of Forsytb, upon accusation dated November 17, 1905, of the.offense of keeping on band intoxicating liqudrs for sale in bis store within tbe limits ■of tbe City of Forsytb. It was claimed that tbe conduct of tbe defendant as stated was violative of tbe ordinances of said city, and •occurred on or about November 4, 1905. After conviction tbe defendant was fined $100, and, being dissatisfied, appealed tbe case to tbe mayor and aldermen of said city. Upon the trial of tbe ap■•peal evidence was introduced to tbe effect that at different times whisky had been bought from tbe defendant at his store in the ■City of Forsytb. The mayor and aldermen affirmed tbe judgment •of tbe mayor, and fixed tbe fine at $100, and in default of payment ■ordered that tbe defendant work sixty days on the chain-gang of tbe city. The defendant in his petition for certiorari complained of tbe judgment of the mayor and aldermen upon tbe general grounds that the finding was contrary to law and to evidence, and that tbe evidence was not sufficient to establish tbe guilt of tbe defendant beyond a reasonable doubt. . Further special grounds were urged as follows: (1) The admission in evidence, over the objections of counsel for the defendant, of the testimony of Thomas Edge, to tbe effect that be bad bought whisky from tbe defendant •on tbe 15th or 16th day of September, 1905. These objections were: (a) That inasmuch as the accusation alleged that tbe defendant kept liquors on hand for an illegal purpose on or about the 4th of. November, 1905, such offense was one wherein time was a necessary element, and for that reason tbe council should be confined to tbe exact dates alleged in the accusation; (5) that testimony as to a sale on “either the 15th or the 16th of September” was too uncertain and vague as to tbe day, and in no wise put the defendant upon notice, and that tbe witness should have been re-quired to specify on which of the two days tbe sale occurred. (2) Tbe council erred in admitting tbe testimony of Edge, to tbe effect that be had bought whisky from the defendant several times two years prior to the 4th day of November, 1905. The objection was that the testimony was too indefinite as to time and that the testimony “does not bring the purchase within the statute of limitations.” (3) The council had the right to reduce the fine, even if they should affirm the judgment of the mayor; and the council erred in holding that they only had power to affirm or reverse the-judgment of the mayor. The judge of the superior court refused to sanction the petition for certiorari, and the defendant excepted.</p>

<p>Indictment fox unlawful sale of liquor. Before Judge Little-john. Crisp superior court. April 25, 1906.</p>

<p>Accusation of pointing pistol at another person. Before Judge Hodges. City court of Macon. June 16, 1906.</p>

<p>1. The negligent conduct of a street-ear conductor in calling a street crossing before his car had arrived at the street announced, thereby inducing a lady passenger to alight, at night and during a severe rainstorm, at a strange place remote from her destination, is to be regarded as the proximate cause of injuries sustained by reason of her slipping and tailing upon a curbstone which she was unable to see, because of the darkness, while endeavoring with due eare to make her way homeward! along a street with which she was unfamiliar.</p> <p>(a) The passenger was under no legal duty to apply for shelter at houses, in the vicinity of the place where she was induced to alight from the car, rather than attempt to reach her destination on foot over a higliway which was in a reasonably safe condition for travel by pedestrians.</p> <p>(&) If she could not by the exercise of ordinary care have discovered that, she was invited by the conductor to disembark at a point short of her destination, she was entitled to recover damages because of illness-brought about by exposure to the weather after leaving the car, the burden being upon her to show that her illness was caused by such exposure rather than by other causes for which the defendant company was not responsible.</p> <p>2. In such a case, no presumption of negligence is raised by law against, the defendant from the bare fact that the plaintiff sustained an injury, and the burden rests upon the plaintiff to prove the allegations of fact-upon which she relies for a recovery. ,</p>

<p>An employee whose duties call him at frequent intervals to a place where-fellow-servants are at work shovelling coal from railroad cars into a. coal-bin is under no legal obligation to give them notice of his presence, if they have reason to apprehend that he may be inside the coal-bin at any time, and there is an established custom whereby they give timely warning whenever large lumps of coal are thrown into it.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. October 12, 1905. Mrs. Edna F. Ogletree, now Hutchinson, brought suit against the Metropolitan Life Insurance Company and J. P. Ogletree, and alleged: About five years ago Q. P. Ogletree made an application and had issued to him a policy of insurance upon his life in the sum of $500, by the Metropolitan Insurance Co. He died August 29, 1904. Petitioner was his wife, and was the beneficiary of the policy.

<p>1. It is the province of the jury, not of a non-expert witness, to draw conclusions from the facts to which he testifies.</p> <p>2. The inquiry being what was proper to be done under given circumstances at a particular point, proof of what was usually done at a point near by under different circumstances can not illustrate the question.</p> <p>3. A finding against the defendant was warranted by the evidence, but the verdict returned in favor of the plaintiff exceeded in amount the highest proved value of the animal for injury to which the suit was brought, less the sum for which the animal was afterwards sold by the plaintiff and which diminished the damages sustained by him.</p>

Divorce. Before Judge Pendleton. Fulton superior court. November 7, 1905.

<p>Action for damages. Before Judge Reid. City court of Atlanta. October 11, 1905.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior .court. November 20, 1905.</p> <p>Baggett, as tbe administrator of Scogin^ deceased, filed his ■equitable petition against Edwards, a non-resident, and McDaniel,| his resident attorney, alleging in brief as follows: Edwards claims that the intestate is indebted to him in the sum of $349 as principal, and interest, upon a promissory note, dated January 12, 1901; and due January 12, 1904, and also in the sum of $6.55 for certain' taxes; that to secure the payment of these sums the intestate in his lifetime, on January 12, 1901, made to him “a mortgage or security deed” to two described parcels of land; that there is in the conveyance a power of sale authorizing him, his agent or attorney, if the debt should not be paid when due, to sell the lands at public outcry to the highest and best bidder for cash for the purpose of paying such debt, “after first advertising the time and place and terms of said sale in some paper published in Fulton county, once a week for four weeks previous to the time appointed for said sale;” and that the conveyance contains a power of attorney constituting the defendant attorney in fact for the deceased to make title to the purchaser of the lands if sold under the power of sale. The intestate died January 12, 1904, “and said defendant, as petitioner is informed and believes, does not claim there was anything due on said debt at the time of his death.” Edwards threatens and intends to sell the lands under the power of sale, claiming that the amounts above stated are past due and unpaid, and has through his agent and attorney advertised in the “Atlanta Constitution” to sell the lands on the first Tuesday in August, 1905. The advertisement appeared first in the newspaper on July 7, 1905, and the time fixed for the sale as stated therein is the' first day of August, 1905, being only twenty-five days from the date' of the first insertion. The plaintiff avers, that the sale would be-illegal, and will cast a cloud upon the title; that the power of sale in said “mortgage or security deed” is revoked by the death of the maker; that the appointment of the creditor attorney in fact to execute a deed to the land when sold was revoked by the death of the maker; that as administrator he has twelve months from the date of his appointment, within which to look into the affairs of the estate and pay the debts due by the intestate, during which time he is exempt from suit and protected from any proceeding to sell the property of said estate save by a judgment of the court; that if the lands are sold they will bring but little; that he is informed and believes that they are worth $1,500. He avers, on information and belief, “that the amount claimed to be due by said defendants-upon said debt is more than is really due and owing by said estate.” The prayers are, that defendants be enjoined from selling the lands on the first Tuesday in August, 1905, or at any other time under the power of sale; that the defendants be enjoined from interfering with the plaintiff’s right to administer the interest, equity, and property right of the intestate; that Edwards be required to come into court to prove what amount, if any, is due him by the estate of the intestate upon said debt; for geperal relief, and for process. By amendment it was alleged, that petitioner as administrator has been in possession of the lands since August 10, 1905, and has received the rents therefrom for the estate; that the lands are a part of the assets of the estate; that there are debts due by note and open account by the estate, and there is not sufficient personal property to pay them; and that it is necessary to administer the lands for that purpose. A temporary restraining order was granted on July 31, 1905. A demurrer was filed which came on to be heard November 20 thereafter. The presiding judge sustained the demurrer and dismissed the petition. In his order he stated that ■the advertisement as set out in the petition was illegal, but that, the date on which the sale was to have been made having passed, no benefit could result from retaining the petition. The plaintiff excepted. f</p>

Action for damages. Before Judge Beid. City court of Atlanta. November 18, 1905. This ease is before this court for the second time. See Mullins v. Matthews, 122 Ga. 286. The petition was dismissed on oral demurrer. Whereupon the plaintiff sued out a writ of error, secured a reversal, and at the second hearing obtained a judgment in her-favor.

<p>Complaint. Before Judge Eeid. City court of Atlanta. December 2, 1905.</p> <p>According to tbe allegations of the petition filed in this case, the B. E.'Electric Co., on November 25, 1903, delivered to the Southern Express Company a certain shipment of tbe value of $214, addressed to the Elberton City E. L. Co., Elberton, Ga.; but tbe express company did not make delivery of tbe shipment to tbe ■consignee, and upon subsequent demand of plaintiff, made in Atlanta, Ga., failed'and refused to return the property of the jjlaintiff or to pay the value of tbe same. Tbe defendant filed an answer making a general denial of the allegations upon which tbe plaintiff relied for a recovery. At tbe trial a salesman of tbe plaintiff company testified that tbe shipment consisted of several “transformers" and some other electrical apparatus which be bad sold to a man who, according 'to bis recollection, gave his name as Pearson, and represented himself as being connected with tbe Elberton City Electric Co. This man, the witness stated, mentioned that a carnival was to take place in Elberton, said the electric-light plant at that place was being overhauled, and the goods ordered were to be used in furnishing light for the carnival. The fact was developed by another witness that the only electric-lighting plant in Elberton was owned by the city and was under the supervision of G. W. Hubbard, the city’s electrician, and his assistant, J. P. Cleveland, neither of whom authorized any one to purchase the apparatus. There was, in point of fact, no corporation ór association known as the Elberton City Electric Light Company, and the city did not •conduct its lighting plant under that name. The Robinson Carnival Co., of which one Pierce was the representative, was engaged by the Daughters of the Confederacy to give a carnival in that city, and the apparatus ordered from the plaintiff was used in furnishing light for the occasion; but this was not done under the direction or with the sanction of the municipal authorities, who had merely agreed with the promoters of the enterprise to furnish the power for the lights and were under no obligation to secure any additional apparatus which might be needed. The shipment arrived in Elberton during the night of November 25. The local .agent at that point testified that on the following morning he inquired of Hubbard, the city electrician, where he wished the apparatus to be placed; that he replied he had other business to look after, but that Mr. Cleveland would be on hand to show the agent where to put it; that the apparatus was hauled on an express wagon to the public square, where Cleveland was found, who pointed out the place where he wished the apparatus delivered and who assisted in unloading it; that the express charges had previously been paid by the treasurer of the carnival company, who, •on being asked where he wished the shipment delivered, had replied that Mr. Hubbard would show where it was wanted; that nothing was said about the ownership of the apparatus, and it was left with Cleveland upon the public square, neither he nor any one else receipting for the shipment. The city electrician, on the other hand, denied that he had told the local express agent that Cleveland would point out the place where the apparatus was needed; and further testified that he, upon being informed by the agent that the transformers had arrived, told him they had not been ordered by the city and he was not expecting any such shipment. The apparatus was used by the carnival company for several nights and was shipped away by that company when it took its departure from the city. Some time afterwards, but before suit, demand for a return of the shipment was made by a representative of the plaintiff upon the superintendent of the express company, at his office in the City of Atlanta.</p> <p>In submitting the case to the jury, the trial judge left them to determine the question whether or not it was within the scope of the authority of Hubbard, as superintendent of the electric-power plant, to receive the shipment, and instructed them that should they conclude as matter of fact that he had such authority and that delivery was made to him or some one else for him, upon his order, the delivery of the shipment so made would discharge the defendant company from liability; but that this would be otherwise if he had no authority to receive the shipment, or it was not in fact delivered to him or upon his order. The only direct evidence touching the extent of his authority with respect to this particular shipment was his own testimony, during the course of which he stated most positively that he had no authority from the City of Elberton to direct the agent of the Southern Express Company to deliver any part of the shipment to any one, and had no right to give any one else authority to receive the shipment. What were his precise duties or what powers he exercised as city electrician and superintendent of the municipal lighting plant does not appear. The jury returned a verdict in favor of the plaintiff, and the case comes to this court upon exceptions taken to the overruling of a motion for a new trial made by the defendant.</p>

<p>* Complaint. Before Judge Pendleton. Fulton superior court. January 19, 1906.</p>

<p>Complaint for land. Before Judge Parker. Wáshington superior court. November 25, 1905.</p>

Complaint for land. Before Judge Hammond. Burke superior court. August 18, 1905. Henry Q. Bell and others brought an action to recover a described parcel of land, against John Sherman. Tlie abstract of' title attached to the petition' was as follows: “1st. Possession and title in Simeon Bell Sr. 2nd. Deed dated February 4th, 1867, executed by.

<p>Action for false imprisonment. Before Judge Eve. City court <of Bicbmond county. January 2, 1906.</p> <p>Charles Blocker brought his action against John W. Clark, alleging that the defendant was the sheriff of Biehmond county; that "H. C. Hall made an affidavit that Charles Blocker had committed the -offense of simple larceny, and on this affidavit a warrant was issued for the arrest of Charles Blocker and placed in the hands of Clark, ■and bjr him turned over to his deputy for execution. On the warrant ■appeared the following memoranda: “Weighs, about 160 pounds; 'brown skin; five feet, ten inches, farm hand; lives in Tuffs Exten■sion, on Woodlawn' Boad.” On this warrant the deputy arrested the plaintiff. At the time of the arrest the plaintiff denied that he had committed the offense charged in the warrant, and protested •that he was not the person for whom the warrant was issued. Notwithstanding this denial and protest, plaintiff was taken into custody, and the deputy refused to carry him before a judicial officer, but lodged him in jail, where he remained for four days. It is alleged that the plaintiff did not answer the description set forth ■in the memoranda, in that he was six feet three inches high, and was distinctly black, that he had not worked on a farm for ten .years or more, but worked as a fireman for an oil company in the -city of Augusta, and that he did not live and had never lived in :Tutfs Extension, but in the city of Augusta some distance from that place, Tuffs Extension being outside the city in the village -of Harrisonville, about a half mile distant from his place of residence. Upon being released from jail plaintiff reported to his employer, who told him that his place had been filled, as he thought he -had gone to the chain-gang. He had been unable to secure work as remunerative as that which he had at the time of his arrest-Damages were laid in the sum of $500. The defendant filed an. answer, in which he admitted that the arrest had been made by his deputy, but denied that the defendant protested his innocence, etc. The statement as to the remark of his former employer was also denied. The answer further alleged that it was the duty of the defendant to execute all legal warrants placed in his hands, and that the warrant was in all respects regular. He placed it in the hands of his deputy, and the plaintiff bore the same name as the person charged in the warrant, and the deputy making the arrest acted in good faith and with reasonable diligence and caution. The answer contained this allegation: “After arresting him it was the duty of the arresting officer to imprison him, unless he requested to be carried before a judicial officer. He made no such request. In taking the plaintiff to jail said deputy sheriff conformed' to the usual practice in such cases, taking steps to prevent the escape of the prisoner but treating him with humanity in all respects, consistent with the officer’s duty to keep him safely. After plaintiff was safely lodged in jail, defendant or his said deputy had no other duty to perform in reference to him. It was then for the plaintiff, who knew the law, to take steps to be brought before a judicial officer and be released.” A copy of the affidavit and warrant, with the entry of arrest, was attached to the answer as an exhibit. At the trial the jury returned a verdict for the defendant, and the plaintiff assigns error upon the overruling of his motion for a new trial.</p>

<p>Action for damages. Before Judge Cann. Chatham superior court. August 16, 1905.</p>

Injunction. Before Judge Parker. Pierce superior court. .June 30, 1906. The plaintiff below, Arloa M. Strickland, is the owner of a tract ■of land in the Town of Blaekshear which has a frontage of 173 :feet on Park Avenue.

Accusation of simple larceny. Before Judge Hammond. City court of Griffin. June 7, 1906. W. W. Welch was arraigned in a city court upon an accusation for simple larceny, which alleged the fraudulent taking, etc., of $3.60, the property of the Griffin Manufacturing Company.

<p>While a municipality may forbid the keeping, within its corporate limits,, of intoxicating liquors intended for illegal sale, it has n'o power to adopt, an ordinance which not only prohibits the keeping for sale of liquors which can not be lawfully sold, but also undertakes to forbid the keeping of domestic wines for the purpose of sale, notwithstanding the general law which authorizes such wines to be sold under certain prescribed terms and regulations.</p>

Motion to set aside judgment. Before Judge Beid. City court bf Atlanta. October 25, 1905. On October 28, 1904, Albright-Pryor Co. sued out an attachment against the Pacific Selling Co., a non-resident corporation, and Thos. Boberts & Co” a non-resident partnership, claiming an indebtedness of $1,000.

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. July 9, 1906.</p>

Presiding Justice Cobb and Justice Lumpkin being disqualified, Judges Freeman and Littlejohn, of the Coweta and Southwestern circuits, were designated to preside instead. Petition for mandamus. Before Judge Pendleton. Pulton superior court. March 20, 1906.

<p>Action for damages. Before Judge Roan. DeKalb superior ■court. November 22, 1905.</p> <p>Nellie Pickens sued the Georgia Railroad and Banking Company, alleging, that it was the owner of a line of railroad which it had leased to two other companies which were operating the same. The Gainesville, Jefferson and Southern Railroad Company, hereinafter ■called the Gainesville company, owned a line of road running from Gainesville by Hoschton to Social Circle on the line of the defend.ant. The defendant sold tickets from points on its road to points on the line of the Gainesville company, and the Gainesville company .sold tickets from points on its road to points on the defendant road. 'The plaintiff purchased from the agent of the Gainesville company a ticket from Hoschton, a station on that road, to Stone Mountain, a station on the road of the defendant. The agent told her at the time of the purchase that the train upon which she would leave Hoschton would make connection at Social Circle with a train of the defendant which would stop at Stone Mountain. When she reached Social Circle she boarded a train of the defendant when it arrived at that point. The conductor in charge of the train took her ticket, examined it carefully, punched it, and placed it in his pocket, after having been informed that she desired to leave the train at Stone Mountain. When the train reached Stone Mountain the conductor failed to stop the train and carried her to Atlanta, sixteen miles from her destination. The petition alleges that the defendant was negligent in not stopping the train at Stone Mountain and allowing her to alight therefrom after having accepted her ticket. It was further alleged that the train was scheduled to stop at Lithonia, where she could have boarded another train and reached her destination if she had been informed that the train would not stop at Stone Mountain. The petition distinctly alleges that upon the acceptance of her ticket by the conductor a duty on his part arose to stop the train at the point of destination indicated by the ticket. Hpon general demurrer the petition was dismissed, and the plaintiff excepted.</p>

<p>1. Under the decisions in Nowell v. Haire, 116 Ga. 386, and Smith v. Bearden, 117 Ga. 822, an entry made by a proper officer upon an execution issued from a judgment, unless recorded upon the proper execution docket, will not, even as between the parties to the judgment, arrest the running of the dormancy statute.</p> <p>2. An equitable petition which sought to subject property to the payment of a dormant judgment, without any revival of such judgment, and without suing upon it, was properly dismissed on demurrer.</p>

Complaint. Before Judge Eve. City court of Bichmond county. December 4, 1905. A. W. Stulb brought suit against H. L. Hall, and alleged the following facts: On July 16, 1902, petitioner was appointed receiver of the firm of Hall & Wylly, and took jDossession of the property of said firm, and, after conducting the business for some time, finally sold the assets for $11,000, the same being bought in for the benefit of Hall.

Action for damages. Before Judge Hammond. Richmond superior court. December 13, 1905.

<p>Action for damages. Before Judge Seabrook. Chatham superior court. January 26, 1906.</p> <p>By consent of the parties this case was tried by the presiding' judge, without the intervention of a jury, upon the following-agreed statement of facts, together with certain documentary evidence thereto attached: On October 25, 1901, the Born Steel Range Company, shipped by the Wheeling and Lake Erie Railroad Company, at Cleveland, Ohio, one range, with accompanying fixtures, to E. W. Foster, at Savannah, Ga. The shipment was transported by that company and its connecting lines, being duly turned over to the Southern Railway Company as one of the connecting-carriers. By accepting and receiving the shipment the Southern Railway Company bebame a party to and adopted the contract entered into by and between the initial carrier and the plaintiff, and agreed to transport and deliver the shipment to the consignee in Savannah. The range and fixtures arrived in Savannah, over the Southern Railway, on November 11, 1901. In accordance with the local custom prevailing in that city as to giving notice to consignees, the Southern Railway Company sent notice through the mail, addressed to the consignee in Savannah, Ga., on November 11, December 21, 28, 30, and 31, 1901, of the arrival of the shipment, all of which notices were returned by the post-office authorities with the information that the consignee could not be located. The shipment was kept on hand by the Southern Railway Company,, in Savannah, until June 7, 1902, when the same was sent to Toccoa,. Ga., and disposed of at a sale of the accumulated freight of the-company. A request was received by the Southern Railway Company from the plaintiff to return the shipment, which request was made before the shipment was sent to Toccoa and while it was in-the possession of the company; but as storage charges had accumulated thereon, the company claimed it had no authority to waive-same and it was necessary to take the matter up with the Southeastern Car Service Association. This consumed time, and when the Southern Railway Company was ready to reconsign the shipment to the plaintiff, it was ascertained that the range and fixtures had already been disposed of by the company at Toccoa,, as aforesaid, for accumulated freight charges thereon in compliance with the code. The value of the shipment in October,. 1901, was $74, and it was of that value at the time of its arrival in Savannah. At the sale the range, etc., did not bring enough to pay storage, freight and other charges thereon. From letters attached to and forming a part of the agreed statement of facts, it appears that the explanation given by the railroad officials concerning the failure to deliver the shipment to the consignee or to return it to the plaintiff was, that the consignee was not a resident of Savannah and the local agent could not locate him; that the Born Steel Bange Company, though aware that the shipment had arrived at destination, did not exhibit much interest in getting it disposed of, and when that company finally asked that the shipment be returned, storage charges to a considerable amount had accrued, and it took some little time to get that feature of the case straightened out; and that when the manager of the Southeastern Car-Service Association finally consented to cancel the storage, the shipment had been sent to Toccoa for sale, had been advertised in accordance with law, and the company realized nothing whatever, as the charges amounted to considerably more than the freight. These officials took the position that “it was the shipper’s fault in not showing consignee’s post-office address in the shipping directions,” coupled with “the fact that the consignee himself did not apparently make an effort to get the range.” It appears from a letter dated January 27, 1902, written by the Born Steel Bange Company to an agent of the initial carrier, that the consignor had, after repeated efforts to have the shipment traced, concluded it was lost, and thereby notified the agent that unless the shipment was located by the first of the month, it would be charged to the account of his company; and if found, the shipper would require its return free of all expenses, “on account of being astray.” The bill of lading, which was attached to the agreed statement of facts, recited that the consignee was “F. W. Foster, Savannah, Ga.,” and did not disclose that his post-office address was McIntosh, Ga.</p> <p>After hearing the argument of counsel, the trial judge announced his finding in favor of the plaintiff, and judgment against the defendant was subsequently entered up for the sum of $74, with interest from November 19, 1901. To this judgment exception is taken by the railway company.</p>

Complaint. Before Judge Seabrook. Chatham superior court.. January 27, 1906. Mrs. Walpert brought suit against William Bohan, alleging in substance as follows: Bohan was a resident of Chatham county,, and was during the month of May, 1905, the proprietor and owner of a certain seashore inn called “Bohan’s Pavillion,” or “Bohan’sHotel,” located on the island of Great Tybee, and was “at that time engaged at said place in the business of an innkeeper.

<p>Indictment for malpractice in office. Before Judge Gann. Chatham superior court. May 7, 1906.</p>

<p>Motion to set aside judgment. Before Judge Beagan. Henry superior court. April 18, 1906.</p>

<p>Indictment for arson. Before Judge Kimsey. Dawson superior court. May 21, 1906.</p> <p>Richards bought from Thomas a hotel in the town of Dawson-ville for $1,375. Pending negotiations Richards procured a fire-insurance policy for $4,800 on the property. lie sent Allred to take charge of it after the trade with Thomas was finally closed, and on the night of the day that Allred took possession the house was burned. Circumstances in evidence indicate an incendiary origin of the fire. Allred and Richards were jointly indicted, the State’s theory being that Allred set fire to the house in pursuance of a conspiracy between them. Allred .was tried and convicted. He excepted to the overruling of his motion for a new trial. One of the grounds of the motion was that the sheriff of Dawson county (after testifying that he arrested Allred in Pickens county and carried him to Dawson county) was allowed to testify that on this journey Allred asked him how much property Thomas had, and said, “I am not done with Dawsonville yet,” and “I can shut it off.” This was objected to on the ground that it was no confession in regard to the burning of the building, and was irrelevant. The other two material grounds of the motion are sufficiently stated in the second and third headnotes.</p>

<p>Indictment for disturbing school. Before Judge Kimsey. Ba-bun superior court. May 7, 1906.</p>

<p>Accusation of cheating, etc. Before Judge Little. City court of Sparta. June 4, 1906.</p>

<p>Conviction of manslaughter. Before Judge Martin. Pulaski superior court. June 21, 1906.</p>

<p>1. The theory of mutual combat was presented by the evidence, and a charge thereon was not inappropriate.</p> <p>2. An instruction to the jury that “there is nothing in this case that you are to consider in arriving at a verdict, except the law and the evidence and the statement of the defendant,” is not too restrictive in scope, when from the context it is apparent that the court only intended an admonition that the jury were not to be influenced by matters extraneous to the trial.</p>

<p>Where an indictment charged the defendant and others with the offense-of murder for that they “unlawfully, feloniously, wilfully, and of their malice aforethought, did kill and murder by shooting [a named person] with certain guns and pistols which the said [defendants] then and there-held, and giving [the person named] then and there a mortal wound,, of which mortal wound the said [named person] then and there died,” this was sufficient to furnish a basis for a conviction of assault with intent to murder against one of the defendants; and a motion in arrest of judgment, on the ground that under such indictment a verdict of guilty of assault with intent to murder can not be sustained, was properly overruled.</p>

<p>Indictment for misdemeanor. Before Judge Spence. Baker superior court. May 19, 1906.</p>

<p>Conviction of manslaughter. Before Judge Kimsey. Kabun ¡superior court. June 31, 1906.</p>

<p>Accusation of stabbing. Before Judge Bush. City court of Miller county. July 7, 1906.</p>

<p>.'1. Where one without malice, and not under such circumstances as would justify or excuse the killing, voluntarily kills another, being impelled so to do by that sudden violent impulse of passion supposed to be irresistible, produced by some actual assault upon the person killing or an attempt by the person killed to commit a serious personal injury upon the person killing, or by other equivalent circumstances sufficient to justify the excitement of such passion, then the homicide would be voluntary manslaughter. The evidence in this case discloses such facts as would authorize the jury to conclude that the accused took the life of the deceased under such circumstances as to make him guilty of the offense above named.</p> <p>2. The objection to a juror that- his name does not appear in the jury box, being an objection propter defectum, must be made when the juror is. put upon the accused, and, if not then urged, will not aftenvards avail as a ground of a motion for new trial. The evidence submitted seeking to impeach the juror discloses no reason why he should not have sexwed, except that his name was not in the jux-y box. The court having so found, it was not erroneous for the court to refuse to grant a new tx-ial on the gi'ound of disqualification of the juror.</p> <p>3. The mental incapacity of a juror is not ground of objection propter defectum, and may be urged after verdict as a ground, if not known to the accused at the time of accepting him, and may constitute a good ground of a motion for new tx-ial. In such case the judge, upon hearing the motion for new trial, will hear evidence, and in the light of the evidence it is his duty to pass upon the competency of the juror. The evidence introduced relative to the mental condition of the juror Platt in the pres- . ent case was sufficient to authox'ize the court to find him competent.</p> <p>4. Where a juror is sought to be impeached after verdict, upon the ground that he was px-ejudiced against the accused, the judge, in passing upon the motion for new trial, will hear evidence upoxx the ground of impeachment, and if the evidence sustains the ground of impeachment, a new trial should be granted. But in this case the evidence upon that question is sufficient to justify the court in holding the juror competent, and there was no error ixx refusing to grant a new trial upon that ground. As to whether the voir dire act of 1856 (Acts 1855-56, p. 231), where the disqualification of the jux-or resulted from the formation “or” expression of an opinion, has been changed by subsequent legislation, so as to make the disqualification result from the fox-mation “and” expression of an opinioxx, it is not necessax-y here to decide.</p> <p>5. There was no such error in the various extracts fx-orn the chax-ge of the court on which error is assigned, or in the refusal of requests to chax-ge, or in any other ruling of the court, as would authorize a judgment of reversal fox- any reason assigned. The evidence authorized the verdict, and having received the approval of the trial judge, the judgment refusing a new trial will not be x-evex-sed.</p>

<p>1. The defendant’s statement to the jury should be restricted to a narrative account of the matter under investigation, and it is not error for the court to refuse to instruct a defendant that he may continue the reading of a letter to the jury, after he has begun to read ii but has been interrupted by the solicitor’s objection thereto.</p> <p>2. It is not ground for a new trial that another, has, since the trial, been . indicted for the same offense of which the defendant was convicted.</p> <p>3. The evidence supported the verdict.</p>

<p>Accusation of misdemeanor. Before Judge Crisp. City court of Americus. July 10, 1906.</p>

<p>Indictment for misdemeanor. Before Judge Martin. Wilcox superior court. May 4, 1906.</p>

<p>Petition for certiorari. Before Judge Lewis. Greene superior court. July 5, 1906.</p>

<p>Petition, for certiorari. Before Judge Mitchell. Tift superior court. July 11, 1906.</p>

<p>Indictment for burglary. Before Judge Little. Muscogee superior court. July 16, 1906.</p>

<p>Indictment for misdemeanor. Before Judge Cann. Chatham superior court. June 30, 1906.</p>

<p>Indictment for forgery. Before Judge Littlejohn. Sumter superior court. June 26, 1906.</p>

Conviction of manslaughter. Before Judge Beagan. Spalding superior court. June 28, 1906. Landers Goodin, John Wesley Goodin, Arthur Goodin, and Newton Goodin were indicted for the murder of Biles. The indictment contained four counts, and charged each of the defendants, as principal in the first degree, with the commission of the alleged crime; and further charged Landers Goodin as principal in the first degree, and the others as principals in the second degree.

<p>Indictment for murder. Before Judge Parker. Coffee superior court. June 27, 1906.</p>

<p>Accusation of misdemeanor. Before Judge Crisp. City court of Dawson. June 8, 1906.</p>

<p>1. Where in a trial of one under an indictment charging him with the offense of murder, the evidence discloses facts and circumstances which made it proper that the court should charge the jury the law of murder, of voluntary manslaughter-, and of justifiable homicide, it was error for the court to charge unqualifiedly that, “If the weapon used was one . which in its nature was not likely to produce death, the jury might infer a want of malice; and in such a case it would be voluntary manslaughter.” Such a charge was open to the criticism that it tended to exclude from the consideration of the jury the defense of justifiable homicide. And the harmful effect of such a charge was not removed when the court, in a subsequent part of his general charge, gave to the jury instructions embracing the law of justifiable homicide. Such instructions were in conflict with the charge quoted, but were not explanatory nor qualifieative thereof.</p> <p>2. An error beneficial to a party affords him no ground for complaint.</p> <p>3. Where the trial judge has once in his general charge fully and correctly stated the law of reasonable doubt, it is not necessary that he should repeat his instructions upon this subject in connection with each new' proposition laid down.</p> <p>•4. The failure of the court to charge the jury upon the subject of the impeachment of witnesses does not constitute reversible error in the absence •of a request -in writing for such charge.</p>

<p>Accusation of vagrancy. Before Judge Smith. City court of Yaldosta. July 27, 1906.</p>

<p>1. An attack upon a specified portion of tlie court’s charge can not prevail where it appears that the correctness of such charge is not questioned, the only criticism upon it being that it fails to present another theory of the defense, when such ground is certified with the qualification that “both defenses and the law applicable thereto were presented to the jury.”</p> <p>2. No other errors of law are complained of. The evidence authorized the verdict, and the judgment of the court below refusing a new trial must be affirmed.</p>

<p>Accusation of vagrancy. Before Judge Hodges. City court of Macon. July 7, 1906.</p>

<p>Accusation of misdemeanor. Before Judge Crisp. City court of Dawson. June 8, 1906.</p>

<p>1. A demurrer to an indictment on the ground that it charges the accused with “two distinct offenses of an entirely different nature in one and the same count” is too indefinite to be considered, unless the demurrer discloses to what different offenses of a dissimilar nature reference is intended to be made.</p> <p>2. In the absence of proof connecting the accused with an article of personal adornment picked up at the scene of the crime shortly after its commission, the fact that it was there found is wholly irrelevant.</p> <p>•3. A complaint in a motion for a new trial, that error was committed in admitting certain evidence over the objection of the accused, presents no question for decision, unless the grounds of objection urged against the evidence at the time it was offered are set forth.</p> <p>■4. -The prisoner is entitled to have his statement to the jury considered by them in its entirety, unaffected by any disparagement of it by the court or intimation to the effect that it is in part unworthy of belief.</p> <p>•5. That the jury were informed that the defense of alibi, relied on by the accused, involved the impossibility of his being at the scene of the alleged crime did not place upon him the burden of showing more than that he was not in fact there present at the time of its commission; nor did the court err in charging the jury upon the assumption that they were not, under the evidence submitted concerning his whereabouts, bound to reach the conclusion that this defense had been conclusively established. ‘6. A correct instruction as to the degree of certainty of guilt requisite to a conviction in a criminal case is not open to criticism because the court did not include therein an exposition of the law concerning the source from which such certainty can alone arise.</p>

<p>Indictment for murder — -conviction of manslaugbter. Before-Judge'Beagan. Pike superior court. June 30, 1906.</p>

<p>Accusation of misdemeanor. Before Judge Smith. City court of Valdosta. August 3, 1906.</p>

<p>Certiorari. Before Judge Kimsey. Hall superior court. July 26, 1906.</p>

<p>Motion for new trial. Before Judge Seabrook. Effingham superior court. July 10, 1906.</p>

<p>Indictment for murder. , Before Judge Lewis. Laurens superior court. July 24, 1906.</p>

<p>Indictment for assault with intent to murder. Before Judge Cann. Chatham superior court. August 11, 1906.</p>

Accusation of misdemeanor. Before Judge Park. City court of Sylvester. August 13, 1906. Held: and the March term was finally adjourned on the third Monday in May. These facts are pleaded as reasons for an absolute discharge and acquittal of the offense charged in the accusation.

<p>Habeas corpus. Before Judge Littlejohn. Crisp superior court. July 31, 1906.</p>

<p>Indictment for larceny. Befpre Judge Arnold. Walton superior court. August 23, 1906.</p>

<p>Accusation of larceny from the house. Before Judge Smith. .City.court of Yaldosta. August 31, 1906.</p>

<p>Petition for certiorari. Before Judge Seabrook. Effingham superior court. August 15, 1906.</p> <p>Sanction of a petition for certiorari from a judgment of conviction in the county court was refused by the judge of the superior court, “for want of proper affidavit;” and the petitioners excepted. The petition was followed by two affidavits of the petitioners, — one that “the petition for certiorari is not filed in the ease for the purpose of delay only, and we fully believe that we have good cause for certioraring, and that the facts stated in the foregoing petition aré true, so far as they come within our own knowledge and belief, and so far as derived from the knowledge of others we believe them to be true;” the other that “their counsel have advised them, and that they believe they have good reason for certioraring the proceedings in the foregoing petition to the superior court, and that owing to their poverty they are unable to pay the costs or to give the security required by law.”</p>

<p>Accusation, of selling liquor. Before Judge Henderson. City court of Vienna. August 23, 1906.</p>

<p>Indictment for murder. Before Judge Lewis. Baldwin supe-, rior court. September 6, 1906.</p>

<p>Certiorari. Before Judge Beagan. Monroe superior court. September 1, 1906.</p>

<p>Accusation of misdemeanor. Before Judge Boan. City court of Douglas. June 20, 1906.</p>

Indictment for misdemeanor. Before Judge Little. City court of Sparta. August 28, 1906.

<p>1. All indictment which charges the offense defined by a legislative act in the language of the act, where the description of the acts alleged as constituting the offense is full enough to put the defendant on notice of the offense with which he is charged, is sufficiently specific.</p> <p>2. The title of the act approved August 10, 1906: “An act fixing the annual license fee for retailing or vending spirituous, intoxicating, or malt liquors in Irwin county at twenty thousand dollars, and to provide a penalty for violating the same, and for other purposes,” is broad enough to provide for a license fee for the sale of such liquors in any quantity.</p> <p>3. The title of the act referred to in the preceding headnote expresses a legislative intent to regulate the sale of spirituous, intoxicating, or malt liquors in Irwin county, and the territory of incorporated towns located in that county is within the provisions of the act.</p> <p>4. Whenever the legislature passes an act and applies its provisions to the entire territory of a county, inconsistent provisions in the charter of an incorporated town located within that county are repealed by necessary implication.</p> <p>5. The item in the Political Code, § 421, “To sell liquors, $25.00,” and the provisions of the same code, §§ 1519, 1535, 1536, 1537, 1538, 1540, and of the Penal Code, §§ 431, 433, are to be construed in pari materia; and when construed together they will not be regarded as prescribing such a general law for the license of spirituous, intoxicating, or malt liquors, and fixing a license fee to sell the same, the existence of which will preclude the General Assembly from enacting- a local law fixing the license fee in a named county, on the ground that such local law is violative of that clause of the constitution which declares that “no special law shall be enacted in any ease for which provision has been made by an existing general law.”</p> <p>6. So much of the Irwin county liquor act, approved August 10th, 1906, as includes domestic wines in the category of the liquors, the sale of which may be licensed by the county authorities, is inoperative, because the wine act of 1904 (Acts 1904, p. 98), conferring on municipalities the power to license the sale of domestic wines in quantities- of not less than . a quart, not to be drunk on the premises within the municipality, is a ' general law. Inasmuch as this unconstitutional feature, may be disassociated from the act without interfering with the general legislative design, the local act will not be held void in its entirety on this account.</p> <p>7. The fifth section of the Irwin county liquor act discriminates against wines made outside of the State, but the effect of the omission to exempt from license wines made outside of the State is not to render the act invalid, but to place wines -on the same -basis, whether made within or without the State.</p> <p>8. The presiding judge allowed the defendant to introduce evidence to support his plea, that the license fee fixed in the act was so large as to be prohibitive, and that therefore the local act contravened the constitutional provision forbidding special legislation where there is an existing general law, viz. the general local option liquor law. Even if a legislative act can be declared unconstitutional by the finding of a jury on the facts of a particular ease, the evidence submitted did not necessarily constrain a finding that the license fee was prohibitory.</p>

<p>Action for damages. Before Judge Beid. City court of Atlanta. October 25, 1905.</p>

Foreclosure of lieu. Before Judge Pendleton. Fulton superior court. December 16, 1905. The General Supply Company brought an action against F. E. Hunn, Herman Seydel, and J. G. Smith, to foreclose a material-man's lien which it claimed against real estate of Hunn and Seydel, by reason of its having furnished plumbing material to Smith, which was used in improving the property.

<p>Action for damages. Before Judge Brannen. City court of Statesboro. August 23, 1906.</p>

Trover. Before Judge Fairclotb. City court of Wrightsville. September 28, 1905. Johnson rented a place to Dudley for five years.

<p>In a suit for damages against a telegraph company for failure to deliver a telegraphic message, it is necessary for the plaintiff to show that the-message was in fact delivered for transmission. This is not accomplished by proof that the plaintiff’s agent, in an attempt to deliver the message for transmission, used the telephone, calling upon the telephone company for a connection with the office of the telegraph company, and, upon being answered by one supposed to be in the telegraph office, asked, “Is that the Western Union Telegraph office?” and, upon being assured in the affirmative, repeating, to the person so answering, the message intended to be sent; it not appearing that the agent of the plaintiff recognized the voice of the person who answered him, as being the voice of one of the agents of the telegraph company, and it not being otherwise known to him or shown that the person to whom he was talking was the agent of the telegraph company.</p> <p>The evidence was not sufficient to support a verdict in favor of the plaintiff, and the jury properly found, under the direction of the court, in favor of the defendant. There was not sufficient error upon any ruling of the court to reverse the judgment, for any reason assigned.</p>

Certiorari. Before Judge Hammond. Richmond superior court. December 15, 1905. An attachment for purchase-money was sued out by F L West against Luther Graham, who was alleged to be indebted in the sum of thirty dollars for “a certain lot of wood,” of which he was in possession.

Action for damages. Before Judge Hodges. City court of Macon. September 18, 1905. Carger sued the street-railway company for damages on account of personal injuries alleged to have been caused by the negligence of the motorman of a street-car in' unnecessarily ringing a bell and in not stopping the car, and in thus frightening a pair of mules which the plaintiff was driving.

<p>Since the adoption of the act of 1900 (Acts 1900, page 53), where a plaintiff in a suit in a justice’s court declares upon a promissory note, and by the original summons cites the defendant to answer the complaint “in an action upon a note, a copy of which said note is annexed to this summons,” the copy of the note attached stipulating for the payment of $100 as principal and 10 per cent, as attorney’s fees, but the summons being silent as to giving the notice specified in the act, such summons is not to be construed as a suit for attorney’s fees, and the justice’s court has jurisdiction of the subject-matter.</p>

<p>Certiorari. Before Judge Eelton. Bibb superior court. January 3, 1906.</p>

Indictment for riot. Before Judge Spence. Decatur superior court. July 12, 1906.

<p>Accusation of vagrancy. Before Judge Henderson. City court of Yienna. August 23, 1906.</p>

<p>Accusation of cheating and swindling. Before Judge Bush. City court of Miller county. August 13, 1906.</p>

<p>Indictment for murder. Before Judge Kimsev. Hall superior court. September 4, 1905.</p> <p>Tbe accused was indicted for murder and convicted of voluntary manslaughter. He assigns error upon the refusal of the judge to grant a new trial. The transaction resulting in the death of the deceased, as shown by the evidence, was in substance as follows: The accused and the deceased, on the night of the billing, were both drinking, and it'appears that they had some controversy about taking a drink of whisky. This quarrel was trivial in itself, but in order to avoid any further trouble, Keesee, a witness, carried the accused across the street and. endeavored to persuade him to let the matter drop. In conversation with Keesee the accused said that he intended to kill the deceased unless he went back to town, and this threat was made more than once. The accused and the deceased met again, the accused this time being accompanied by his kinsman, Chunk Dorsey; and the three, with Keesee, went up the street. Trouble again arose between the accused and the deceased, and also between the deceased and Chunk Dorsey, but this was quieted. Keesee, believing that no further trouble was to be anticipated, left the deceased and the two Dorseys and returned to town. The accused "had with him a billiard cue, cut down so that it was used as a walking stick. The evidence does not disclose the exact character of this stick, but the judge, in a note to the motion for a new trial, says that the .stick was introduced in evidence and identified as the one used, and that'it was the large end of á billiard cue about four feet long and an inch or more in diameter at the larger end. The deceased used an insulting epithet to the accused, and menaced him by drawing his hands from his pockets and holding them in a fighting attitude. It does not appear that the deceased had any weapon. The accused thereupon struck the deceased with the billiard cue and knocked him down. The deceased arose and struck the accused several licks, apparently with his fists, and the accused again struck the deceased with the billiard cue,, knocked him down, and rendered him unconscious. From the effect of these blows the deceased died the following day.</p>

Accusation of attempting to prevent laborer from working. Before Judge Norwood. City court of Savannah. September 7, 1906. An accusation under the Penal Code, §123, charged Binyard and Brown with having, on August 1, 1906, by threats attempted to prevent Amos Wright from engaging in, remaining in, or performing his duties as a laborer in the employment of the Smith & Kelly Company.

Indictment for abandonment of child. Before Judge Clements. City court of Eastman. September 12, 1906. Williams was convicted under an indictment charging him with having abandoned his child, leaving her in a dependent and destitute condition. He moved for a hew trial, on the grounds that the verdict was contrary to law and the evidence; the motion was overruled, and he excepted.

<p>Accusation of misdemeanor. Before Judge Little. City court of Sparta. August 28, 1906.</p>

Accusation of misdemeanor. Before Judge Hammond. City •court of Griffin. September 24, 1906.

<p>Certiorari. Before Judge Lewis. Greene superior court. September 15, 1906.</p>

<p>1. The decision in Hennington v. State, 90 Ga. 396, as affirmed by the Supreme Court of the United States in Hennington v. Georgia, 163 U. S. 299, is, upon review, adhered to and reaffirmed.</p> <p>2. The evidence authorized the verdict, and no sufficient reason appears for reversing the judgment.</p>

<p>Indictment for murder — conviction of voluntary manslaughter. Before Judge Lewis. Laurens superior court. September 12, 1906.</p>

<p>Illegality. Before Judge Pendleton. ' Fulton superior court. November 4, 1905.</p> <p>A street-improvement fi. fa. in favor of the City of Atlanta was issued against Emma Draper, Jessie McKee, and Anna E Wright, as the owners of a certain house and lot in the city fronting on North Pryor street, to collect the sum of $472.25, the amount assessed against the property as their proportionate share of the expense of paving that street with asphalt in pursuance of an ordinance adopted by the city council and approved by the mayor on November 7, 1903. To the levy of this fi. fa. H. L. McKee, as agent of the owners of the property, interposed an affidavit of illegality, based upon the following grounds: (1) Both the ordinance of November 7, providing for the repavement of North Pryor street, and an ordinance approved July 8, 1904, assessing a portion of the cost against this property, were void and of no effect, because, prior to their passage, “North Pryor street, along the entire front of said property, . . was paved with belgian blocks, a far better and more suitable paving for a business street than sheet asphalt,” and the belgian-block paving was in first-class condition, in no way worn out or useless, but was the best possible paving for that street and for the purposes for which it was used, it being a business street and the property levied on being used solely for business purposes; and this being so, the City of Atlanta had no legal right to take up the belgian-block paving and put instead thereof sheet-asphalt paving. (2) The action of the city was without authority of law and amounted to an abuse of the discretion of its officers, and was oppressive, in that prior to November 7, 1903, th.e property levied on had along its entire front a pavement of belgian blocks which had been placed on the street by the city, and the cost thereof assessed against the abutting property as provided by law, and paid by the owners of the property, which pavement was in first-class condition, not worn out or useless, but the best and most available paving for that street, etc. (3) No notice of said ordinances or of the assessment thereunder was given or served upon the owners of the jiroperty levied on, as required by law. (4) The belgian-block paving in front of the property was taken up by the city and appropriated to its own use; it was of the value of $473.35 “to said property and its owners,” and no part of that amount has ever been paid to them by the city; so they are entitled to a credit on the execution, for the value of this paving.</p> <p>At the hearing of the case, counsel for the city moved to dismiss the illegality, whereupon the defendants in fi. fa. offered an amendment, in which the allegation was made, that when the city under-: took to provide by ordinance for repaving the street with sheet-asphalt from Alabama street to Peachtree street the entire street was paved with belgian blocks, a far better and more durable pavement than sheet asphalt; that no part of this paving was worn out or no longer useful as a good pavement,.but on the contrary the same was in perfect condition and of more value as paving than sheet asphalt; and that the ordinances adopted by the city (copies of which were attached) failed to comply with the law, in that they did not set out or affirmatively declare that the mayor and council exercised the judgment and discretion vested in them under the law, and did not declare that the paving originally put down on said street was worn out to the extent that it was no longer useful as a good pavement. The court declined to allow this amendment, and sustained the motion to dismiss the illegality. To the action of the court in thus disposing of the case, exception is taken by the parties against whom the execution was issued.</p>

Appeal. Before Judge Pendleton. Fulton superior, court. December 18, 1906. A. W. Foster died, leaving as bis widow Louise Hill Foster, who afterwards intermarried with Turnbull. On February 2, 1905, she filed an application for a year’s support, to be set apart from the estate of Foster, deceased. On the same day the administrator of the decedent acknowledged service of notice upon him. Appraisers were appointed and made a return.

<p>Some evidence having been submitted by the plaintiffs which would hav& authorized the jury to find a verdict in their favor, the court erred in. granting a nonsuit.</p>

<p>Action for damages. Before Judge Roan. DeNalb superior court. January 17, 1906.</p>

<p>Attachment, etc. Before Judge Hammond, Richmond superior court. December 16, 1905.</p>

<p>Complaint. Before Judge Brannen. City court of Statesboro. January 30, 1905.</p>

<p>A master is not responsible in damages to his servant for injuries sustained by the latter while in the employment of the former, in consequence of defects in a tool furnished by the master, which the servant was using at the time of the injury, when the defects were such that they were known to the servant, or could have been known by the exercise of ordinary care on his part.</p>

<p>Action for damages. Before Judge Iiodges. City court of Macon. September 27, 1905.</p>

Appeal. Before Judge Felton. Bibb superior court. January 2, 1906. The International Harvester Company of America brought suit against Dillon, in a justice’s court, upon two promissory notes, one for $40 and the other for $45. The defendant filed a plea that the consideration of the notes was a corn binder, which was worthless,, and that the defendant was not liable on the notes, because tbe consideration had .entirely failed.

<p>Where a manufacturer of bricks submits to his customers a number of bricks as samples, and stipulates to sell others as good in quality, such stipulation amounts to an express warranty that the bricks sold and to be delivered will be of as good quality as the samples submitted.</p> <p>i(a) Where goods are sold under an express warranty as to quality, the vendee is not bound to inspect before acceptance, and if they afterwards be found to be defective, damages arising from such defect may be recovered against the vendor; but if they be defective, and the vendor knows of the defect, and with such knowledge accepts the goods, he will be deemed to have waived the defect, and, in a suit for the purchase-price, will not be heard to recoup damages arising therefrom.</p> <p>■(b) There was no issue for submission to the jury, and the court did not err in directing the verdict.</p>

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

<p>In order to determine tlie question whether or not the contract of an infant for a course in stenography was a contract for necessaries, in the sense in which the term “necessaries” is used to render the contract binding upon such infant, the evidence in the case 'should show the state, degree, and condition in life in which the infant is whose contract is under consideration; and it should also affirmatively appear that the parents or guardian of such infant failed or refused to furnish the alleged necessary. The evidence in this case, upon which this issue was submitted to the jury, failed to show these particular facts and circumstances. There being, therefore, nothing in the evidence submitted upon which the jury in the justice’s court could predicate a verdict finding that the contract was for necessaries, it was .error for the superior court judge to deny the writ of certiorari.</p>

Equitable petition. Before Judge Seabrook. Chatham superior court. February 3, 1906. The plaintiffs below, as executors of J. H. M. Clinch, deceased, filed their petition against J. A. Huger and W. G. Morrell, the case made by the petition being substantially as follows: On May 30, 1900, Clinch and Huger entered into a partnership agreement to plant rice on what was known as the Refuge Plantation, in Camden county, Ga.

Petition for mandamus. Before Judge Felton. Bibb superior court. February 5, 1906.

<p>Certiorari. Before Judge Felton. Bibb superior court. January 3, 1906.</p>

Action for damages. Before Judge Holden. Madison superior court. September 5, 1905. Mrs. Howington brought her action against the County of Madison, laying damages in the sum of $10,000.

Equitable petition. Before Judge Eawlings. Warren superior court. February 1, 1906. On March 13, 1903, a suit was brought in the superior court of Warren county by “James A. Anderson, assignee of the Bank of Warrenton, Mrs. C. N. Churchhill, James L. Johnson, and Mrs. L. L. Cason, stockholders of said bank, suing for themselves and the use of other stockholders, and A. J. Lockett, C. F. Johnson, and Mrs. Lizzie Adkins, depositors,” against W. S. Witham and J. F. Allen.

<p>The evidence was of such a character as to require the submission to the jury of the issues raised therein, and it was error to grant a nonsuit.</p>

<p>Mandamus. Before Judge Spence. Turner superior court. April 9, 1906.</p> <p>The obj'ect of the petition for mandamus was to require the ordinary to publish his official advertisements in a newspaper other .than that in which he was publishing them, on the ground that the sheriff on January 1, 1906, had selected the plaintiffs’ newspaper as the official organ of the county, and the ordinary had been so notified. The material allegations and evidence were in conflict.</p>

<p>Petition for. injunction. Before Judge Lewis. Baldwin superior court. May 17, 1906.</p>

Action for money had and received. Before Judge Parker. Washington superior court. September 16, 1905. In February, 1899, Franklin obtained a judgment against Larry in the county court of Washington county, and on September 5 the fi. fa. was levied on the property of Larry. Larry filed a claim, as the head of a family, to the property so levied on by Franklin, and gave a forthcoming bond. Strange signed the bond as surety for Larry.

<p>Petition for injunction. Before Judge Eawlings. Johnson superior court. April 28, 1906.</p> <p>The petition alleged: On February 21, 1905, a stock-law-election was held in the 1201st district G. M., Johnson county, wherein, the plaintiff and the defendant reside. The result of the election was declared to be in favor of the adoption of the stock law, but the law never went into effect, because the district was not enclosed with a substantial wire fence within six months after the election,, as was required by a provision of the stock law, Nevertheless, after the expiration of the six months, the defendant impounded certain hogs of the plaintiff, refused to return them, and commenced suit to recover of the plaintiff the expense incurred in impounding them, as well as damages for the trespasses they had committed. The petition alleged further that the defendant was insolvent and threatened to continue to impound plaintiff’s stock, if necessary. It was prayed that the defendant be enjoined from pursuing his alleged cause of action against the plaintiff, and from earrjdng out any threats to impound plaintiff’s stock in the future, and that it be decreed that the stock already impounded be delivered back to the plaintiff. A demurrer and an answer were filed, in the latter of which the defendant admitted having impounded plaintiff’s hogs and that he was claiming damages for injuries done-by them and also expense for feeding them, and declared that he intended to continue to impound plaintiff’s hogs if they were allowed to go upon his (defendant’s) premises. He denied, however, that the stock law had not gone into effect, and on the contrary sought to justify his acts by that law.</p> <p>On the trial of the issue thus raised, the plaintiff contended that the stock law had never become operative, because suitable fences had not been erected around the militia district within six months after the election; and, in support of that contention, introduced in evidence the affidavits of a number of witnesses which were to the effect that the fence in many places was not on the militia-district line, but was many yards therefrom; that it was insecurely fastened to stakes driven a few inches in the ground; that it had fallen in many places of its own weight; that for a considerable distance no fence at all was constructed, but that in lieu of the 'fence a watercourse was relied upon, and this, not being navigable as required by law, afforded no obstruction to the passage of stock; that adequate gates had not been provided at the intersection of roads, and that on the whole the fence failed to accomplish the purposes for which it was constructed. The defendant introduced numerous affidavits to the effect that the fence was of the “proper” height, built of the “proper” sort of wire, was as substantial “as required by law,” and had sufficient gates “as were required by law.” He tendered in evidence an order signed by the ordinary of the county and dated within six months after the election, which declared, in substance, that since the election had been held and had resulted in favor of the stock law, and since the fence had been constructed around the district within six months after the election, the stock law was "in force in the district. The plaintiff objected to the introduction of this order, on the ground that the ordinary had no authority under the provisions of the stock law to promulgate the same, and that it was irrelevant; which objection the court overruled. The defendant also offered in evidence a joint affidavit of three witnesses, stating that they had built and fully completed the fence around the 1201st district “in conformity to the requirements of law,” and within six months after the election, and had erected gates wherever the fence crossed roads. This affidavit was objected to by the plaintiff on the ground that it was not entitled in the cause, and because there was no provision of law for the making of the same, and that it was hearsay and irrelevant, which objection the court overruled. The court passed an order denying the injunction, and the plaintiff excepted.</p> <p>A motion was made to dismiss the bill of exceptions, on the grounds: (1) that the certificate of the judge to the bill of exceptions was void, because “it did not appear why the same was not signed within 20 days from the judgment excepted to; nor does it state that the failure to sign such certificate was without fault on the part of -the plaintiff in error;” (2) that the suit sought to be enjoined by the plaintiff, namely, the one filed by the defendant to recover damages of the plaintiff on account of the trespass, etc., of the impounded stock, had been dismissed and the stock had been returned to the owner. In support of this contention the defendant attached to the motion his own affidavit and that of the justice of the peace, to the effect that the aforesaid suit had been dismissed. Counsel for the plaintiff did not admit that the suit had been dismissed, but contended in his brief that the plaintiff denied that the suit had been dismissed.</p>

Action for damages. Before Judge Cann. Chatham superior court. August 16, 1905.

<p>Complaint. Before Judge Eelton. Bibb superior court. January 2, 1906.</p>

<p>1. Points made in a petition for certiorari not verified by the answer of the magistrate furnish no ground for a reversal.</p> <p>2. The answer of the magistrate in this ease did not sufficiently verify the statements of the petition and the points made therein show error in the judgment rendered by him, or in that rendered by the judge of the superior court.</p>

Complaint for land. Before Judge Holden. Wilkes superior court. November 7, 1905. Porterfield and others brought an action against Charles E. Irvin, as administrator of Barnett Irvin, to recover possession of a tract of land.

<p>1. The judge of a superior court, in hearing a certiorari, is restricted to the errors alleged to have been committed on the trial below, and has no authority to consider assignments of error relating to matters occurring since the trial.</p> <p>2. Where the evidence is conflicting, the discretion of the judge of the superior court in granting, upon certiorari, a first new trial, will not he controlled.</p>

Complaint for land. Before Judge Russell. Banks superior ■court. November 28, 1905. W. E. Moore, his five brothers, two sisters, and the children of a deceased sister, all as heirs at law of Eli Moore, deceased, brought an action to recover nine-tenths undivided interest in a ■described tract of land, against Nancy Jane Moore and others. The sixth paragraph of the petition alleged that the defendants were in possession of the premises in question.

Injunction. Before Judge Little. Muscogee superior court. May 3, 1906. Benjamin Highnote died September 10, 1895, leaving a will which contained the following items: “Third.

<p>Attachment. Before Judge Eeid. City Court of Atlanta. January 15, 1906.</p> <p>The plaintiff instituted by attachment an action of assumpsit against Miller & Co., a firm whose members were non-residents of the. State. The declaration is in part as follows: “(2) Petitioner shows that said defendants are indebted to him in the principal sum of $1,382.57, besides interest, by reason of the following facts: On January 25, 1904, jurar petitioner bought of the defendants 10,000 bushels of wheat at 91 3/8 cents per bushel, and defendants executed to petitioner on said date their contract for the same. Subsequent to said purchase petitioner decided to sell said wheat, and on the 16th day of February, 1904, he gave the defendants an order to sell the same, and the same was executed for him by defendants at 96 1/2 cents per bushel; thereby netting to petitioner, after the pajunent of defendants’ commissions, the sum of $500. (3) On the 17th day of February, 1904, petitioner bought, through defendants, 10,000 bushels of wheat at 97 3/4 cents per bushel. Subsequently petitioner decided to sell the same and placed with the defendants his order for that purpose, and when the same was executed by the defendants at 104 7/8 cents per bushel; thereby netting to petitioner, after payment of defendants’ commissions, the sum of $700. (4) In addition to the sums aforesaid, petitioner shows that he had with the defendants a balance on account, cash placed with them, of $182.57, making a total of $1,382.57.” The defendants answered, denying the allegations contained in the above paragraphs. On the trial of the issues, the evidence for the plaintiff consisted of his own testimony, in connection with certain exhibits, as follows: The item of $182.57 in the account sued on was the balance due him on prior transactions according to a statement given him by the bookkeeper in the Atlanta office of the defendants. In reference to the other two items, the plaintiff introduced two letters from Miller & Co. to himself, one dated at New York, January 25, 1904, and the other at the same place, February 17, 1904, both beginning: “We have this day bought for yorir account and risk, subject in all respects to the rules, by-laws, and customs of the Chicago Board of Trade:” then followed a statement of the number of bushels and the price per bushel, each letter respectively giving the numbers and prices as set out in the plaintiff’s declaration. The plaintiff further testified that he had given orders for the sale of the wheat through the agents of the defendants in Atlanta, and later, upon inquiry, had been told by such agents that the two sales had been made at the respective figures set forth in the petition, and that he was due the respective amounts sued for. He further stated that he had a memorandum from Miller & Co. that they had sold the first quantity of wheat, and that it netted him the $500 claimed therefor.’ He also introduced in evidence the order he had given for the sale of the second quantity. At this point the plaintiff’s evidence closed, and the defendants introduced their agent in charge of the Atlanta office, who testified merely as to the second order to sell, admitting that it had been received by him from the plaintiff and transmitted to the home office of the defendants in New York, but stated that the order had not been executed by defendants. On this evidence the judge charged the jury to find a verdict for the plaintiff for the $182.57 claimed as balance due from previous transactions, and for the $500 claimed from the sale of the first quantity of wheat; but as to the $700 claimed from the sale of the second quantity of wheat, he put the question to the jury as to whether or not the order for the sale given by the plaintiff had in fact been executed by the defendants, and made the plaintiff’s right to recover this amount dependent upon an affirmative answer to this question. The jury returned a verdict for the full amount sued for.</p> <p>The defendants made a motion for a new trial, some of the special grounds of which are in substance as follows: (1) It was error to admit in evidence the letter of January 25 from the defendants to the plaintiff in reference to the purchase of the first quantity of wheat, because “the said contract introduced in evidence varied from the contract set out in plaintiff’s declaration, in that the contract introduced in evidence was' one by which the defendants purchased as agents for the plaintiff, while the contract set out in the pleadings .was one by which the plaintiff purchased directly from defendants, as vendors.” (2) It was error to admit in evidence the letter of February 17 from the defendants to the plaintiff in reference to the pureha.se of the second quantity of wheat, because “the contract offered in evidence varied from the contract set out in plaintiff’s declaration, in that the contract offered in evidence was one by' which the plaintiff purchased directly from the defendants as vendors, while the contract set out in plaintiff’s declaration is a contract by which the defendants acted as agents for the plaintiff.” (4, 5) It was error to refuse to charge the jury that the plaintiff had not established his claim to the $700 alleged to be due under the second transaction, and instead to leave the matter for their determination. The motion for new trial was overruled, and the defendants excepted.</p>

<p>1. That the court omitted or declined to charge the jury, before they retired to make up their verdict, concerning a pertinent legal proposition is not cause for a new trial, when, after the jury had returned and asked for additional instructions, the court in a recharge to them fully covered this feature of the case.</p> <p>2. Allusion to a matter extrinsic to the record by counsel in the argument of a ease will not constrain the court to declare a mistrial in every instance. It is only when, the foreign matter injected in the case by the argument is of such a prejudicial nature that a rebuke of the statement by counsel, and an instruction to the jury, in the discretion of the court, will be incommensurate to remove any improper impression from the minds of the jurors, that a mistrial should be declared.</p> <p>3. The sentence imposed upon a prisoner convicted of a misdemeanor should express the full punishment which the trial judge may, in a wise exercise of the discretion vested in him by the Penal Code, § 1039, deem merited by the prisoner because, of the offense committed by him, without regard to what his future conduct may be and independently of any contingency which may arise after sentence has been pronounced and the court has lost the power to impose punishment on him. A penalty to be inflicted upon him in the event he shall subsequently apply for relief from his sentence to jail imprisonment can not legally be imposed; nor, if he be sentenced to five months in jail, can the court legally impose as an additional alternative punishment, in the event he fails to pay a fine, another .definite term of six months imprisonment in jail.</p>

Indictment for rape. Before Judge Brand. Gwinnett superior court. June 11, 1906. R. L. Vanderford was indicted for rape committed on tbe person of Pearl Helton. The evidence for the State showed, in brief, as follows: Pearl Helton was a girl fifteen years of age. On March 22, 1906, she was at the house of her sister who lived about a mile from the Helton home. Shortly after dinner the defendant appeared at the home of her sister and stayed some time.

Equitable petition. Before Judge Bawlings. Emanuel superior court. October 17, 1905.

<p>Certiorari. Before Judge Hammond. Richmond superior court. October 19, 1905.</p> <p>Suit was brought in a justice’s court, on an open account for groceries, etc., in which there was claimed, as a balance due, $14.28 principal, and $20.67, interest. The defendant admitted that he owed the plaintiff $10.38, principal, but denied that he owed interest. The interest charged in the account appears to have been computed on the basis of sales “on thirty days time.” The president of the plaintiff company (the sole witness for the plaintiff) testified, that “groceries sold by his company are sold on thirty days time, and interest is due on said accounts after thirty days;” that he personally did not notify the defendant to this effect, but this was his instruction to his salesmen; and that his bill-heads had printed on them that interest would be charged on all overdue-accounts. The defendant contended that interest should not be-charged until the end of the year. The court rendered judgment against him for $9.08 principal, and $20 interest. Error is assigned on the overruling of his petition for certiorari.</p>

Complaint. Before Judge Hammond. Richmond superior court. December 27, 1905. Crawford, as trustee in bankruptcy of the Augusta Debenture Company, hereinafter referred to as “the company,” sued Roney, alleging: The company is a corporation under the laws of Georgia and has been adjudicated a bankrupt.

Equitable petition. Before Judge Holden. Warren superior court. November 4, 1905. Mrs. E. T. Belt brought an equitable petition against E. P. Henry Lazenby. The petition made the following allegations: Petitioner’s brother, Henry A. Jones, died in 1854, leaving a will devising to her a described tract of land and one hundred and seventy-four shares of Georgia Eailroad & Banking Company stock.

<p>Equitable petition. Before Judge Holden. Madison superior court. November 13, 1905.</p>

<p>Complaint. Before Judge Hardeman. City court of Washington. December term, 1905.</p>

<p>Illegality. Before Judge Kimsey. Habersham superior court. 'September 16, 1905.</p>

<p>Certiorari. Before Judge Kimsey. Habersham superior court. September 13, 1905.</p>

Appeal. Before Judge' Gober. Gilmer superior court. May 16, 1905. The plaintiff sued the railway company in a justice’s court. The-summons required the defendant to appear and “answer plaintiff’s demand in an action of debt due by account for overcharge on. freight, a copy of which is hereto attached.” The account attached was as follows: “Ellijay, Ga., Oct. 12, 1904. The Atlanta, Knoxville & Northern R. R. Co. Dr. to W. H. & E. E. Shippen March 29, 1904.

Complaint. Before Judge Reid. City court of Atlanta. November 28, 1905. The plaintiff, Mrs. Minnie D. Cowdery, declared on a written contract, signed by her and by the defendant, Mrs. M. H. Greenlee, for the sale by the former to the latter of a house and lot in the City of Atlanta. The agreed purchase-price was $4,200; the pur■chaser to assume a loan of $2,500 which was an incumbrance on the property and to make a cash payment of $1,700.

<p>1. Eor a negligent injury to a minor, causing loss of services and entailing expenses of medicine and nursing, tlie right of action is in the father, if he be alive at the time of the injury.</p> <p>2. If for'such a tort a right of action accrued, it did so immediately upon the happening of the injury, and was in the father, although he may have been injured at the same time with the child, and may have lived only a short time thereafter.</p> <p>3. In such a case, if a right of action arose to the father, and he died before any suit was brought, the cause of action did not survive to the mother of the child.</p>

<p>Action for damages. Before Judge Gober. Gilmer superior court. August 36, 1905.</p>

Complaint. Before Judge Beid. City court of Atlanta. December 14, 1905. In October, 1903, the Novelty Hat Manufacturing Company and Wiseberg entered into a contract which provided that “said Wiseberg agrees to work in the employ of the Novelty Hat Mfg.

Complaint. Before Judge Beicl. City court of Atlanta. December 8, 1905. The action was against the Missouri State Life Insurance Company, Browne, and Browne & Simpson, for breach of contract.

<p>Indictment for murder. Before- Judge Reagan. Monroe superior court. August 27, 1906.</p>

<p>Rule for contempt. Before Judge Wright. Floyd 'superior ■court. June 9, 1906.</p>

<p>Injunction. Before Judge .Wright. Floyd superior court. September 7, 1906.</p>

<p>Practice in the Supreme Court.</p> <p>An election was held in Bast Borne, by virtue of an act of the General Assembly, to decide whether Bast Borne should be annexed to the City of Borne. Ivey and others filed a petition against the mayor and council of Borne to enjoin them from entering upon the minutes of the city council the reported result of the election, and from declaring by resolution or proclamation East Borne to^ be a part of the City of Borne. The petition was returnable to the January term, 1907, of the superior court of Floyd county. The judge refused a restraining order, but granted a rule nisi for a hearing on September 26, 1906. On that day the court dismissed the petition, on the ground that the court was without jurisdiction of the subject-matter of the petition. To the order of dismissal the petitioners sued out a bill of exceptions, assigning as error the refusal of the court to grant a restraining order when the petition was presented, and the dismissal of the petition before the return term of the case. The case was docketed in the Supreme Court as a “fast” writ of error, at the instance of the complaining parties.</p>

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

<p>1. Where the dispensary commissioners of the town of Blakely elected a secretary and treasurer, and subsequently, by an amendment to the act creating the dispensary, the legislature named a secretary and treasurer therefor, this took effect as against the person who had been named by the commissioners, although the time for which they named him had not expired.</p> <p>2. Under the act of August 1, 1906 (Acts 1906, p. 114), authorizing elections in counties where the sale of liquors is not lawful except by dispensaries, to be held for the purpose of determining whether they shall be continued or abolished, construed in connection with section 1545 of the Political Code, which is made to apply to such dispensary elections, “except where clearly inapplicable,” upon the holding of an election and the declaration by the ordinary that it had resulted against, the continuance of the dispensary, this did not alone immediately terminate the existence of such dispensary, but the ordinary was required to publish the result once a week for four weeks before such result finally took effect.</p> <p>. There was no requirement in the acts of the legislature creating the dispensary in Blakely or amending the law in regard thereto that the secretary and treasurer should be qualified in any particular manner, or give bond. The evidence offered by the plaintiff to show that such a requirement had been made by the commissioners of the dispensary, and had been complied with, was rejected. So that there was nothing before the court to show such a requirement.</p> <p>4. The act of August 20, 1905, named the plaintiff as the secretary and treasurer of “the dispensary,” not merely of the new board of commissioners named by that act.</p>

Action for damages. Before Judge Beid. City court of Atlanta. November 18, 1905.

Action for damages. Before Judge Roan. DeKalb superior court. January 20, 1906. Jonas Hillman brought an action for damages against the Georgia Railroad and Banking Company, alleging as follows: On March 5, 1904, he was a passenger on the night train on defendant’s road. On the train was a drunken ruffian and desperado by the name of Scruggs.

Equitable petition. Before Judge Pendleton. Fulton superior court. November 27, 1905. The petition of Harry L. Woodward alleged that J. C. Bridger, as trustee for his wife and children, was indebted to him in the sum of $750, besides interest and attorney’s fees, on a promissory note dated September 24, 1892, and due ten days after date.

Action on contract. Before Judge Cann. Chatham superior court. October 18, 1905. Miller & Sons sued Mendel, alleging, that on February 4, 1904, the defendant gave to the plaintiffs, through their agent at Savannah, Gfa., an order for one car-load of No. 2 white corn in sacks, and on February 18, 1904, the plaintiffs shipped the corn to the defendant, charging therefor' $369, and the corn arrived in Savannah on February 23, 1904.

<p>Complaint. Before Judge Seabrook. Bryan superior court. November 6, 1905.</p>

<p>Action for breach of warranty. Before Judge Hodges. City court of Macon. September %, 1905.</p> <p>T. J. Long brought an action for damages for breach of warranty, against L. A. Mitchell, who, it was alleged, had sold to the plaintiff a mule, under a warranty that the animal was sound, gentle, and would work anywhere, when in fact the mule was vicious and could not be worked to the plow. The plaintiff stated in his petition that he paid $140 for the mule, through Holmes & Hardeman, who advanced the money to him as a loan. The defendant, in his answer, averred that, according to his understanding, the sale of the mule was to Holmes & Hardeman, not to the plaintiff. On the trial the plaintiff testified, that the mule would commence to kick whenever hitched to a plow, and was so vicious in this respect that he had to dispose of her, after the defendant had declined to refund the purchase-money or give him another mule which was gentle. Proof was submitted as to the amount of damage sustained. The testimony in regard to the purchase was in substance as follows: Long went to Mitchell (who was a stableman), and said he wanted to buy a gentle mule that would work anywhere. Mitchell selected a mule and told him that the mule was “gentle, sound and all right,” and that he “would guarantee her anywhere.” They agreed upon the purchase-price, $140. Long said he would take the mule, and would get Hardeman to send Mitchell the money. Mitchell said, “All right, take the mule and go on;” but Long went off without the mule, to arrange with Hardeman for making payment of the price. Hardeman consented to furnish Long with the money to buy the mule, and took his note for $140, and a mortgage on the mule. Long then got the mule from Mitchell. Hardeman testified: “Long gave me a purchase-money note for the mule. He came and said he had traded with Mitchell, and I rung Mitchell up and says, ‘You have sold one of my customers a mule/ and I says, ‘If I pay cash for it, will you give me anything off?’ And he saj^s, ‘I will give you $10;’ which was customary between warehousemen and stablemen. The mule was $130, and I got a purchase-money note for it. I only asked Mitchell, if I paid the bill, would he give me anything off, and he said he would give $10 off, and I says, ‘Send around and I will send you check.’ Mitchell said he had sold Long a mule. I may have put it this way: ‘Long told me he had bought a mule, and if I pay the bill, will you allow me anything off?’ And he says, ‘$10;’ and I says ‘Send around and get a check for your money.’ As near as I can recollect, I said, ‘This mule has been priced for $140; and if I pay you the money, do I get anything ?’ And he says ‘$10.’ He sent me the bill, and I sent my check for $130. I did not have any money in my hands at the time belonging to Mr. Long, and I did not owe Long anything. The reason I paid this money to Mitchell is, I was in the warehouse business, and Long had been a customer of mine, and accustomed to borrowing money, and asked me would I pay the bill to Mitchell for the mule, and I says, ‘I will.’ After I paid the bill I took Long’s note for the money.” The bill was against “Holmes & Hardeman,” and stated that it was for “one gray mare mule for T. J. Long, $130.” The court granted a non-suit (upon what ground the record does not disclose), and the plaintiff excepted.</p>

Action for damages. Before Judge Hodges. City court of Macon.

Equitable petition. Before Judge Hammond. Warren superior court. October 2, 1905. The plaintiffs, describing themselves as heirs at law of the estate of E. H. Pottle, deceased, filed an equitable petition against G. W. Wheeler, Fannie B. Norris, and E. E. Norris.