Volume 127 — Georgia Reports

<p>1. This is a suit to reform a deed so as to embrace a certain matter alleged to have been omitted therefrom by mistake at the time of its execution. The evidence affirmatively shows that the matter was not omitted by .mistake. Under such conditions, the deed will not be reformed.</p> <p>2. The contention that the deed should be cancelled as a cloud upon the plaintiff's title, which was made by the pleadings, is not referred to in the brief of counsel for plaintiff in error, and, under repeated rulings of this court, the assignment of error upon the refusal of the court to cancel the instrument in question will be treated as abandoned, and will not be considered.</p> <p>3. The petition having set forth a cause of action against all of the defendants, and one of them having failed to answer, .the allegations against . him are to be taken as true, and a nonsuit should not have been rendered in' his favor. As to the other two defendants, there was an answer, and, upon the issues created, the proof was Insufficient to support the action against either of them for any relief whatever, and a nonsuit as to them was proper.</p>

<p>Certiorari. Before Judge Holden. Glascock superior court. ■October term, 1905.</p> <p>Execution was levied, and affidavit of illegality interposed. A Jury in a Justice’s court found against the illegality. The finding was sustained on certiorari, and the defendant -excepted. 'The affidavit of illegality is not in the record, nor are its grounds stated in the petition for certiorari or elsewhere in the transcript or bill of exceptions. The defendant was personally served with the summons in the suit wherein was rendered the judgment on which the execution issued, and appeared and suffered judgment to be rendered. The assignments of error in the petition for certiorari raise the following points:</p> <p>1. That the suit in which the judgment was rendered was void, the name of the plaintiff, “Augusta Drug Co.,” not importing a legal entity; there being no allegation that the same was a corporation or a partnership.</p> <p>2. That the summons was invalid, it being directed “To the defendant,” who was named in the caption but not in the body of the summons.</p> <p>3. That the levy of the execution was void, the same being-directed “To all and singular the constables of said county,” and the levy having been made by the sheriff on personal property. It appeared that a constable, before the levy by the sheriff, had levied on the same property by virtue of process other than the execution in question, and had taken a forthcoming bond. Upon the levy by the sheriff the defendant gave to this officer a forthcoming bond for the property.</p> <p>4. That the defendant should have had an opportunity to point out property for levy. The sheriff’s entry of levy recites that the property levied on was pointed out by the plaintiff, and that it was in the possession of the defendant. There is no evidence as to whether the defendant was given an opportunity to point out property.</p> <p>5. That the original suit was brought on a promissory note signed by the ^defendant apparently as principal, and by one Logue as security, and indorsed by one Carroll; that before trial the plaintiff dismissed the action as to Logue and Carroll; and that therefore the defendant was discharged from liability.</p> <p>6. That the summons, judgment, and execution were all void, there being no such party plaintiff named and described as is required by law.</p> <p>7. That during the argument of defendant’s counsel one of the jurors slept (or, according to tbe magistrate’s answer, “napped a little”), which rendered the .trial and verdict void.</p> <p>8. That the magistrate tried to stop the defendant’s counsel when he argued to the jury that the entry of levy was in the handwriting of the plaintiff’s attorney, and that defendant at no time was given a chance to point out property for levy. There was no evidence that the entry of levy was in the handwriting of the plaintiff’s attorney.</p> <p>9. That when the defendant’s counsel was making the concluding argument to the jury (the defendant having introduced no evidence) and was discussing an authority cited, to which he had not referred in his opening argument, the magistrate, over his objection, allowed the plaintiff’s counsel to interrupt and argue in answer • to the plaintiff’s counsel concerning the cited authority thus referred to.</p> <p>10. That the verdict is contrary to law, and unsupported by evidence.</p>

<p>Complaint. Before Judge Gober. Cherokee superior -court. ■October 17, 1905.</p>

<p>Certiorari. Before Judge Holden, Glascock superior court. December 1, 1905.</p>

Action for damages. Before Judge Holden. Oglethorpe superior court. January 16, 1906.

<p>Injunction. Before Judge Spence. Wortli superior court. February 12, 1906.</p> <p>The Gress Manufacturing Company sought an injunction to-prevent Bell and others from cutting or disposing of timber to which the defendants claimed title under a certain contract between the plaintiff and Bell, the plaintiff contending that BelL had failed to comply with the conditions of the contract, and had not acquired title to the timber. The contract was as follows: “ Georgia, Berrien county. This contract and agreement, made- and entered into this the 13th day of January, 1905, by and between Gress Mfg. Co., of Berrien county, party of the first part,, and H. F. Bell, of Worth county, party of the second part, witnesseth, that for and in consideration of the sum of $800, represented by a promissory note for this amount, due six months after date,, the receipt of which is hereby acknowledged, the said party of the first part does hereby sell, alien, convey, and deliver to the said party of the second part all of the timber suitable for sawmill purposes upon the following described land [describing it]. The said party of the second part hereby agrees to saw the said timber into merchantable lumber on the following terms: to begin cutting- or sawing the same by March 15th, or sooner, on orders furnished, by parties of the first part, at the market price for such lumber as may be sawed. The filing and accepting of • an order thus furnished by the party of the first part shall be an acknowledgment on the part of the party of the second part that the said order was furnished at the market price, and shall not be subject to dispute-by the said party of the second part. Said party of the second part agrees to saw continually until all of said timber is cut into lumber in accordance with the terms of this contract, and to cut not less than fifty thousand feet of lumber per month, and to allow the said party of the first part to retain $2 per thousand feet from each car as it is shipped, same to be applied to payment of above note, and to the payment of any further advance which may be made by the said party of the first part to the said party of'the second part.” The contract was signed by each party. The petition alleged, that Bell had failed to comply with the contract in this: .that he had failed to cut 50,000 feet of lumber per month as agreed, and had failed to fill promptly all orders furnished by the plaintiff, after having accepted them; and that the plaintiff had thus been damaged in a stated sum, for which judgment was prayed.</p> <p>The defendants demurred generally and specially to the petition, and answered, denying its material allegations. On the hearing it appeared, that on January 11, 1906, Bell executed to his codefendants a lease of the timber referred to in the foregoing contract, and that on January 30, 1906 .(before the petition was filed), the note given by Bell to the plaintiff for the purchase-price of the timber was paid. The judge passed an order enjoining the defendants from disposing of the, timber situated on the land described, and they excepted.</p>

<p>Petition for injunction. Before Judge Spence. Decatur superior court. January 4, 1906.</p>

Complaint. Before Judge Stark-. City court of Jefferson. January 4, 1906. According to the allegations of the petition, J. J. Bowles, an heir at law of A. Bowles, deceased, sold to the plaintiff his remainder interest in a tract of land, which was subsequently sold by the administrator of A. Bowles.

<p>Action for damages. Before Judge Kimsey. Habersham superior court. October 11, 1905.</p>

<p>'Where a defendant was indicted for a felony, and upon his trial was convicted, but the jury convicting him recommended, under the provisions of the Penal Code, § 1036, that he be punished as for a misdemeanor, which recommendation was approved by the trial judge, the duty devolved upon the stenographer of the court who reported the case, under the Penal Code, § 981, to transcribe his stenographic notes of the evihence and charge of the court and file the same in the office of the clerk of the court; and upon refusal so to do, the writ of mandamus, at the instance of the defendant, would lie to compel the performance of that duty.</p>

J. G-. Bawlins, Milton Bawlins, and Jesse Bawlins applied to the Supreme Court for mandamus against the judge of the superior court of Lowndes county.

Complaint. Before Judge Russell. Gwinnett superior court. September 8, 1905. The Marietta Fertilizer Company brought suit against J. P. Byrd & Company upon three promissory notes under seal, claiming an indebtedness of $395.00 with interest.

<p>Indictment for larceny from the house. Before Judge Hammond. Columbia superior court. September 25, 1906.</p>

<p>Under a municipal ordinance which declares: “All pawnbrokers,” etc., “shall furnish to the chief of police, or chief of detectives, a full and complete list each day of every article taken in pawn or bought by said dealers, giving a full description of the same,” etc., and which provides a penalty for a refusal or failure “to furnish such list,” a mere clerk iu a pawnbroker’s shop, who fails to report to the chief of police, or the chief of detectives, the purchase, in the pawn-shop, by the pawnbroker of a given article is not guilty of the offense defined by the ordinance, . even though he may have been present at the time the article was bought and may have assisted the pawnbroker in its purchase, and though it may have been customary for him as clerk to make out such reports for his employer.</p>

<p>Accusation of bastardy. Before Judge Eve. City court of Richmond county. September l'O, 1906..</p> <p>The accused was arraigned upon an accusation charging him with the offense of bastardy, and was convicted. He filed a motion in arrest of judgment, and also a motion for a new trial, each of which was overruled; and he excepted. It appears from the record that he was arrested and brought before a justice of the peace, who, after hearing the evidence as to the paternity of the child, passed the following order: “Charles Martin having been arrested and brought before me upon a warrant pursuant to 124-8 and 1249 of the Penal Code, issued at the instance of Essie Jacobs, the mother of a certain bastard child, which warrant charges said Charles Martin with being the father of said child: after hearing the evidence, it is ordered that the said Charles Martin give security for the maintenance and education of said child until it arrives at the age of fourteen years.” IJpon refusal to give the bond required in the foregoing order the justice of the peace committed the accused to jail in the event he failed to give a bond for his appearance at the next term of the city court.</p>

<p>Indictment for burglary. Before Judge Wright. Chattooga superior court. September 29, 1906.</p>

<p>Indictment for forgery. Before Judge Lewis. Jasper superior court. September 28, 1906.</p>

<p>Indictment for assault. Before Judge Kimsey. Habershamf superior court. September 29, 1906.</p>

Accusation of selling liquor. Before Judge Littlejohn. Crisp superior court. September 26, 1906. The accused was arraigned in the county court for a violation of ' the general local option liquor law, and was • convicted. He carried the case by certiorari to the superior court, where the certiorari was overruled, and he excepted.

<p>Accusation of riot. Before Judge Hammond. City court of Griffin. October 12, 1906.</p>

<p>A'ccusation of cheating, etc. Before Judge Stark. City court of Jefferson. October 6, 1906.</p>

<p>Accusation of. simple larceny. Before Judge Littlejohn. Crisp superior court. September 26, 1906.</p>

<p>Indictment for unlawful sale of liquor. Before Judge Little-john. Crisp superior court. September 26, 1906.</p>

<p>Accusation of vagrancy. Before Judge Willis. City court of Columbus. October 20, 1906.</p>

<p>Certiorari. Before Judge Keagau.- Butts superior court. September 28, 1906.</p>

<p>indictment for assault with intent to murder. Before Judge Fomsey. Towns superior court. October 13, 1906.</p>

<p>1. The allegation that the defendant did “utter and publish” a certain forged check is supported by evidence that he offered to pass said-cheek to another person as a genuine instrument, though the offer was-not accepted and the defendant did not exhibit the forged instrument to the witness, there being other evidence from which the jury might find that said check had been forged by the defendant and was in his possession at the time said offer was made.</p> <p>2. On the trial of one charged with forgery, it is competent for the State to prove that for some time immediately preceding the date when the check, alleged to have been forged, was cashed, the defendant was without means and in need of money, and that immediately thereafter he was seen with a considerable sum of money, and presented a ten-dollar bill to a witness in payment of a debt.</p> <p>3. -The evidence, though circumstantial, was sufficient to establish the guilt of the accused.</p>

<p>Indictment for murder. Before Judge Reagan. Pike superior court. June 2, 1906.</p>

<p>Certiorari. Before Judge Littlejohn. Stewart superior court. September 24, 1906.</p>

<p>Accusation of unlawful sale of liquor. Before Judge Hansell. City court of Thomasville. October 5, 1906.</p>

Indictment for murder. Before Judge Reagan. Telfair superior court. May 12, 1906. Nat and Harvey Ray, brothers, and Glenn Ray, a son of Nat Ray, were working upon a road. The two brothers quarreled about a part of the work, and Nat struck Harvey three times with a stick. Harvey struck back with a hoe, knocking Nat down; whereupon Glenn Ray ran up and struck Harvey on the back of the head with ■a hoe, killing him.

<p>Accusation of larceny from the house. Before. Judge Little. City court of Sparta. October 20, 1906.</p>

<p>Certiorari. Before Judge Pendleton. Fulton superior court. October 2, 1906.</p>

<p>When in the trial of a criminal-ease the defense relied on is that the ac- * cused was insane at the time of the commission of the criminal act, and the State introduces an expert witness who testifies that the accused was of sound mind and responsible for his conduct, it is error requiring the granting of a new trial for the judge to instruct the jury that “Great respect is due to the opinion of those skilled in such matters and with reference to the phenomena 'of the human mind.”</p>

<p>1. In this State all special presentments of the grand jury charging defendants with violations of the penal laws are treated as indictments.</p> <p>2. Where a special presentment had the name of the foreman of the grand jury, with his official designation as such, signed on the hack of it, and below such signature were the printed words “special presentment,”' this was a. sufficient endorsement to show that the grand jury found such special presentment; and there was no error in overruling a motion to quash it.</p> <p>3. Evidence of an unlawful sale of intoxicating liquor to an agent, with notice that he was purchasing for his principal, will not support an allegation in. an indictment of a sale to the agent as an individual.</p>

Attachment. Before Judge Reid. City court of Atlanta. December 8, 1905. In March, 1903, Walker purchased a piano from the Cable Company, and signed a written contract agreeing to pay $365 in monthly installments for the same.

<p>Habeas corpus. Before Judge Freeman. Coweta superior court. September 29, 1905.</p>

<p>Habeas corpus. Before Judge Beid. City court of Atlanta. March 8, 1906.</p> <p>The plaintiff sued out a writ of habeas corpus for the recovery ■of her child from the possession of the defendants. The defendants contended that they had received the child from the “Home for the Friendless,” to which it had been properly committed from the recorder’s court of the City of Atlanta, and at the hearing of the writ introduced in evidence a paper showing the proceedings before the recorder respecting the commitment of the child. The plaintiff objected to the evidence, upon the ground that it did not ■show sufficient authority for the retention of the child, because the recorder in committing the child relied on the authority of the act uf the legislature, approved December 18, 1894 (Code §§2372-2387), and this act was unconstitutional. The caption of the act was as follows: “An act to regulate benevolent institutions in this State, to define the powers of those now or hereafter incorporated, and to provide for the incorporation of the same.” The body •of the act was as follows: “Sec. I. Beit enacted by the General Assembly of the State of Georgia, that from and after the passage of this act, any three or more persons desiring a charter for any benevolent institution shall file,- in the office of the clerk of the superior court of the county in which they desire to transact business, ■a petition or declaration specifying the objects of their association, together with their corporate name, and the time (not exceeding fifty years) for which they desire to be incorporated; which petition shall be recorded by said clerk, and shall also be published once a week for four weeks in the nearest public gazette to the point where such institution is to be located, before said court shall pass an order declaring said application to be granted. Sec. II. Be it further enacted, that said corporation shall have power to purchase and hold real estate sufficient for the actual occupation and necessary uses of the society or institution, and may receive, by gift or devise, property of any kind, on the terms contained in the gift or devise. Sec. III. Be it further enacted, that the directors or board of managers of such institution shall have power to make by-laws and regulations for the government of the institution, and may control the children under their care, and prescribe their course of instruction and management to the same extent and with the same rights as in the case of natural guardians. Sec. IV. Be it further enacted, that in all cases where a child shall have been surrendered by its natural guardian or custodian to the care 'and management of any such institution, by any instrument or declaration in writing, or committed to its custody according to law, it shall be lawful for the directors or board of managers, at their discretion, to place such child, by adoption or at service, in some suitable employment, and with some proper person or persons; provided, that in all such cases the terms of the indenture shall be first approved by the ordinary of the county, which approval shall be signified on such indenture by the signature of said ordinary; but in every such case the requisite provisions shall be inserted in the indenture or contract of binding to secure the child so bound such treatment, education, or instruction as shall be suitable and useful to its situation and circumstances in life; and in all such cases where a child shall have been surrendered by its natural guardian or other legal custodián to the care and management of such institution without any instrument or declaration in writing, but because of poverty or other liability to care for such child, it shall be lawful for the board of managers to place such child, for adoption or at service, in the manner hereinbefore provided, after having kept such child at least one year, and there being no reasonable probability of such parent or custodian being able to resume the care of such child. Sec. V. Be it further enacted, that in case of the death or legal incapacity of a father, or of his imprisonment for crime, or of his abandoning and neglecting to provide for his family, the mother shall be deemed the guardian of her children for the purpose of ■making such surrender as aforesaid; and if in any such case the mother be either dead or legally incapable of acting, or imprisoned for crime, or an inmate of a house of ill fame, or shall have abandoned or neglected to provide for her child or children, the ordinary of the county in which such institution is established shall lie, by virtue of his office, the legal guardian for the like purpose; and in all cases where said child has been abandoned by the person legally entitled to its custody, the said ordinary shall be ex officio such guardian for the same purpose, and in either case, whether such surrender be made fyy the mother or by the ordinary, and whether before or after admission into said institution, it shall be deemed a legal surrender for the purposes and within the true intent and meaning of this act. Sec. YI. Whenever any girl under.the age of 14 or any boy under the age of 10 j'ears shall be found by any policeman or other officer of the county in which any such institution devoted to the relief or care of children is located, in any street, highwáy, or public place in said county, or any city therein, in circumstances of destitution -and suffering or abandonment, exposure or neglect, or of beggary, or in any house of ill fame, it shall be the duty of any such policeman or other officer to bring such child before the mayor, recorder, or other judicial officer in .said county, or any city therein, for examination as to the cause of such suffering, exposure, or neglect; whenever any such child is so brought before the mayor, recorder, or other magistrate, etc., and it shall be proved to the satisfaction of such mayor or other judicial officer, by competent testimony, that by reason of the neglect, habitual drunkenness, or other vicious habits of the parents or lawful guardians, or the person having the custody of such child, that it is a proper object for the care and instruction of such institution located in such county, such mayor, recorder, or other magistrate, instead of committing such child to the almshouse, or such other place, if any, as may have been provided by the city or county authorities of such county, may, in his discretion, by^warrant in writing under his hand, commit such child to such institution, to be and remain under the guardianship of its managers until' therefrom discharged in the manner prescribed by law. Sec. YII. Be it further enacted, that any order so made by any such mayor, recorder, or magistrate may be executed by any policeman or constable to whom it shall be delivered by the official issuing it, by conveying the child therein named to such institution, and such child shall be detained in said institution until discharged or removed therefrom in the manner hereinafter provided. See. VIII. Be it further enacted, that immediately upon the making of any such order, the officer making the same shall deliver to the policeman or constable a notice in writing addressed to the father of such child, if its father be living and resident within the county, and if not, then to its mother, if she be living and so resident, and if there be no father or mother of such child, then addressed to the lawful guardian of such child, if any, or to the person with whom, according to the examination of the child and the testimony, if any, received by the mayor, recorder or magistrate, such child may reside; in which notice the party to whom the same is addressed shall be informed of the commitment of such child 'to said institution, and shall be notified that unless taken therefrom in the manner prescribed by law within ten days after the service of such notice, the child therein named shall be deemed legally surrendered to the institution for the purposes and within the true intent and meaning of this act. ^ Sec. IX. Be it further enacted, that such notice shall be served by the officer to whom it shall be delivered by delivering the same to the party to whom it shall have been addressed personally, or by leaving it with some person of sufficient age, at the place of residence or business of such party; and it shall be the duty of such officer immediately to report the fact and the time and the manner of such service to the officer issuing the notice. See. X. Be it further enacted, that if the party to whom such notice shall have been addressed or any other person shall, within the time specified therein, prove to the satisfaction of the officer issuing the same that the circumstances of want and suffering, or other circumstances under which child shall have been found, have not been occasioned by the habitual neglect or misconduct of the parents or legal guardian of such child, then it shall be the duty of such magistrate, by order in writing addressed to the directors or managers of said institution, to direct such managers to deliver such child to the custody of the party named in such order, who shall thereupon be entitled to take such child away from said institution. Sec. XI. Be it further enacted, that if such proof shall not be produced within the time above prescribed, it shall be the duty of the officer, by whom such child shall have been committed to said institution, to make and transmit to the directors or managers thereof a notice in writing to that effect. Sec. XII. Be it further enacted, that if any child who has been previously arrested and delivered to the parent or guardian, as hereinbefore provided, shall again be found in either of the conditions hereinbefore described, the officer before whom such child is brought, upon proof thereof, may afterward make a final order committing such child to the care and. instruction of the institution, without giving the notice hereinbefore provided for. Sec. XIII. Be it further enacted, that if at any time after the child shall have been committed to said institution, as above provided for in this act, it shall be made to appear to the satisfaction of the directors or board of managers of said institution that such child was, on insufficient cause, false or deficient testimony, or otherwise wrongfully or improvidently so committed, the said directors or board of managers shall, on the application of the parents, guardian, or protector; and also, if, after a child shall have been properly committed to said institution by' virtue and in pursuance of the provisions of this act, any circumstances should occur, which, in the judgment of the directors or board of managers of said institution, would render expedient and proper the discharge of such child from the guardianship of said board, having a due regard for the welfare of such child and the purposes of the institution, the said directors or board of managers, on the application of the parents, guardian, or protector of such child, may, in their discretion, deliver up the child to its parents, guardian, or protector, on such reasonable condition as the said directors or board of managers may deem right and proper; provided, the consent of the ordinary shall be first obtained. Sec. XIV. Be it further enacted, that the said directors or board of managers shall have power, and it shall be their duty, whenever any child intrusted or committed to their charge shall, by the commission of any infamous crime, or by confirmed habits of vagrancy, have become so degraded and debased as to be an improper subject for their care and management, to return such child to the committing officer or other proper authority, to be disposed of in due course of law. See. XV. Be it further enacted, that if any party to whom the directors or board of managers of said institution shall have intrusted a child shall be guilty of any cruelty, misuse, and refusal or neglect to furnish the necessary provisions or clothing, or of any other violation of the terms of indenture or contract, to any such child so indentured, such child, or any reliable person, rany make complaint thereof to any justice of the peace of the county in which such child is so indentured, or to the mayor, recorder, or other judicial officer of any city in the county in which such child is bound to service; and it shall be the duty of such officer to summon the parties before him and examine into, hear, and determine the said complaint; and if, upon such examination, the said complaint shall appear well founded, such .officer shall, by certificate under his hand, discharge such child from his obligation of service and restore him or her to the charge and management of such institution in the same manner and with like powers as before the identure of such child. See. XVI. Be it further enacted, that the directors or board of mana gers of such institution shall be the guardian of every child indentured by virtue and in pursuance of the provisions of this act, to the extent that they shall take care that the terms in the contract be faithfully fulfilled, and that such ward be properly treated; and it is hereb3 made their special duty to inquire into the treatment of 'every such child and redress any grievance in the manner prescribed by law; and it shall be the duty of the person to whom any such child shall be indentured, and he shall by the terms of the indenture be required, as often as once in six months to report to said directors or board of managers the conduct and behavior of said apprentice and anything of special interest pertaining to his welfare. Sec. XVII. Be it further enacted, that all laws in conflict with this act be, and the same are, hereby repealed.” Acts 1894, p. 80.</p> <p>After the passage of the act, it was embodied in the Civil Code of 1895, and the Civil Code, by act of the General Assembly was adopted as a code of laws. See Acts 1895, p. 98. Upon the trial of the case before the habeas-corpus court, it was insisted by the plaintiff in error that the act was unconstitutional, for the following reasons: (1) That it referred to more than one subject-mat-; ter, and contained matter different from what was expressed in the title. (2) That it was special legislation. (3) That it was contrary to the provision requiring that the jurisdiction, powers, etc., of courts of the same grade should be uniform. (4) That it was contrary to the provision prohibiting slavery. (5) That it authorized the deprivation of one's liberty without due process of law. The court was of the opinion that the act was not unconstitutional for the reasons assigned, and admitted in evidence the authentieated proceedings from the court committing the child into the custody of the Home for the Friendless, which were under authority of and in pursuance of the act. The plaintiff excepted and assigned error. In addition to these assignments of error, several others were made, only two of which need be noted: (1) That the court refused to allow the plaintiff to prove “that the facts stated in the commitment as aforesaid do not now exist, and that the plaintiff is now able and willing to provide for her child a good home, good clothing, plenty of good food, and proper care, and that she is not now a woman of vicious habits and guilty of habitual drunkenness.” ' (2) That the court refused to allow plaintiff to prove that tlie child’s grandmother was a woman of good moral character and was willing and able to take care of the child. After hearing all of the plaintiff’s contentions, the'court passed an order denying the writ and remanding the child to the custody of the Home of the Friendless. The plaintiff excepted and assigned error upon that ruling.</p>

<p>Complaint. Before Judge Parker. Washington superior court. September 6, 1905.</p> <p>The Mortgage Company brought suit against Kawlings, and alleged, in substance, that on the 15th day of Februarjr, 1884, Kawlings made and delivered his promissory note payable to the order of F. W. Dunton on the first day of March, 1887; that said note was given for the purchase-money of certain described lands, and contained a stipulation for the payment of ten per cent, attorney’s fees in the event it was collected by suit; that the note was not under seal, and a copy was attached to petition; that Dunton gave to defendant a bond for title to said land; that thereafter Dunton transferred said note and the title to said land to petitioner; and that on the fifth day of .July, 1897, the defendant and the plaintiff entered into a written agreement in reference to the payment of said note, which agreement was as follows:</p> <p>“Georgia, Washington County. This agreement made and entered into this the 5th day of July, 1897, between William Kawlings, party of the first part, and the American Mortgage Company of Scotland Limited, party of the second part, witnesses that whereas party of the first part, 'on November 4th, 1884, purchased of F. W. Dunton a certain tract of land in said county and described as follows [describing the land for which the above note was given], giving to said Dunton his purchase-money note for the sum of $4,000, due March 1st, 1887, with interest from date at the rate of eight per cent, per annum; and whereas said note has by indorsement and transfer become the property of the second party, and said second party holds the title to the land to secure said note, which is now in the hands of the attorney for said second party for collection: Now therefore, in consideration of the payment by the first party of one hundred and fifty dollars cash, receipt of which is hereby acknowledged, and also other agreements contained herein, the parties agree as follows:</p> <p>“1st. Party of the first part will, on October 1st, 1897, pay on account of said note and interest the further sum,” &c. [the agreement being that defendant might pay the balance then due, in installments running through several years].</p> <p>“2nd. The second party agrees to extend the time for paying said note as above stated, and not to enforce the same by suit unless default should be made in some of the payments above stated.</p> <p>“3rd. It is further agreed that the second party shall have and continue to have a lien upon said land to secure the payment of the balance of said purchase-money until the same is fully paid.”</p> <p>Plaintiff prayed judgment against the defendant for the principal sum, interest, and attorney’s fees as provided in the original note. Defendant admitted that he was indebted for principal and interest, but denied that he was bound for the attorney’s fees. Movant assigns error upon the refusal of the trial judge to include, in the judgment rendered by him, the amount of attorney’s fees as provided in said original note.</p>

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

Claim. Before Judge Gober. Cherokee superior court. December 30, 1905. J. P. Ellington, as administrator of T. R. Ellington, advertised certain land for sale as the property of his intestate. Mrs. Nannie Harris interposed a claim to an undivided half interest in the land. At the trial it appeared that the intestate died in possession of the land, and that the legal title to the same was in him.

<p>Action for damages. Before Judge Fite. Whitfield superior •court. November 17, 1905.</p>

<p>Complaint. Before Judge Gober. Cherokee superior court. December 21, 1905.</p>

Action for damages. Before Judge Fite. Dade superior court. December 15, 1905.

Complaint. Before Judge Wright. Floyd superior court. January 18, 1906. The Rome Tribune Company, a corporation engaged in the publication of a newspaper at Rome, Ga., filed a suit against William A. Knowles, setting forth in its petition the following complaint and facts leading up thereto: About September 1, 1894, the defendant was elected a director -of the companj», and was at the same time elected its general manage^.

<p>Petition for injunction. Before Judge Bartlett. Polk superior court. March 13, 1906.</p>

<p>1. After tlie trial judge signed tlie certificate to a bill of exceptions Ms power and jurisdiction over the case ceased, except as provided in the Civil Code, § 5536, as amended by act approved August 22, 1905. Therefore, where he subsequently allowed and certified what purported to be an amendment to the bill of exceptions, this court can not adjudicate the questions sought to be raised by such amendment.</p> <p>2. Where complaint was made in a motion for a new trial, by plaintiff, that the court erred in admitting in evidence, over his objection, the certificate of defendant’s discharge in bankruptcy, and the court passed on this ground and overruled the motion, the plaintiff, who, by writ of error to this court, excepted to such ruling, will not be heard to say that there was no evidence of defendant’s discharge.</p> <p>3. It not appearing that a debt which was provable, and the name of the creditor, were not duly scheduled, the discharge in bankruptcy of the debtor released him from the debt though the creditor had neither notice nor actual knowledge of the proceedings in bankruptcy.</p>

<p>Equitable petition. Before Judge Reagan. Pike superior court. October 3, 1905.</p>

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

<p>1. There being a conflict in the evidence as to material issues in the case, the judge erred in directing a verdict.</p> <p>2. A ground of a motion for a new trial, based upon the admission of evidence, should state what objection was made thereto when it was offered a.t the trial, and should affirmatively show that the objection was then, urged; otherwise no question is raised for determination by this court.</p> <p>3. Error was assigned upon the court’s refusal “to permit the counsel for the plaintiff on cross-examination to - inquire of the witness Emerson, the vice-president and general manager of the defendant, in regard to the charges preferred against him by the board of directors of the defendant,. and which they were seeking to-inquire into at the time the said Emerson demanded 'of the plaintiff that he turn over to him the office he then held with the defendant.” This assignment is without merit, as it is impossible to determine from this ground of the motion whether the alleged charges were of such a nature as to render evidence touching them relevant and material,' without searching through the brief of evidence, which this court will not undertake to do.</p>

Breach of contract. Before Judge Holden. Elbert superior -court. September 13, 1905. The evidence for the plaintiff showed as follows: He owed a debt to a firm of which the defendant was a member. He agreed with the defendant that the latter should cultivate certain lands of the plaintiff, each to receive half of the crops, advances made by the defendant for the plaintiff being deducted from the plaintiff’s share.

<p>A defendant in an equitable cause, wherein specific equitable relief is prayed because of his alleged fraud, can not by the consummation- of the fraud pending the suit, whereby the particular relief prayed can not be decreed, deprive the court of its jurisdiction of the ease; but the court will give such other relief as may be appropriate to the changed status.</p>

<p>Complaint for land. Before Judge Gober. Cherokee superior court. October 3, 1905.</p>

<p>Certiorari. Before George D. Anderson,. judge pro hae vice. Cobb superior court. December 22, 1905.</p>

<p>Cancellation of deed. Before Judge Fite. Dade superior court. September 30, 1905.</p>

<p>Trespass. Before Judge Fite. Whitfield superior court. January 6, 1906.</p>

<p>Breach of contract. Before Judge Wright. Floyd superior •court. October 2, 1905.</p> <p>The Woodstock Iron Works brought suit against the Hanks Foundry Company, alleging that on the 4th day of February, 1903, the defendant .entered into a contract with plaintiff, which is embodied in the following writing:</p> <p>“Order No. Salesman No. 14. C. E. Foust representing Rogers, Brown & Co., Birmingham, Ala. Pig Iron, Coal and Coke. 'Sale memorandum Feb. 4th; 1903. Sold to Hanks Foundry Company, Rome, Ga., for account of Woodstock Iron Works, 100 tons '2 soft Woodstock at price of $19.25 per ton of 2240 lbs., F. O. B. Anniston, Ala. Delivery 25 tons each April, May, June, and July ■via present freight rate per ton from-•-to-. We -do not guarantee freight rates. Weights to govern both buyer and .seller are the railroad weights nearest shipping point. Shipments •on this order are at buyer’s risk after being received by railroad. Delivery subject to strike, accidents, car supply, etc. Terms: iSight draft attached to bill of lading.</p> <p>Accepted. Hanks Foundry Co., J. D. Hanks.</p> <p>C. E. Foust, Salesman.”</p> <p>It is alleged that the article referred to in the writing was pig iron; that' the plaintiff, upon receiving the order, accepted the •same in every particular and in all its details; and that it has complied with the terms and conditions of the contract. The plain-biff promptly commenced to furnish the pig iron, as ordered, until ¡September 2d, when all had been furnished except 48 1/2 tons, ■when the defendant declined and refused to take said 48 1/2 tons, •and practically refused to accept or pay for the same. It is alleged that on the date last mentioned pig iron had declined in price, and was, at that time, worth only $10.25 per ton; whereby the plaintiff has been damaged $9.00 per ton in the sale of the pig iron •embraced in the contract which the defendant refused to receive. By amendment it is alleged that on February 4, 1903, the plaintiff accepted the contract of that date, and began the shipment of •the pig iron and was ready and willing to ship the same at the rate of 25 tons for each of the months of April, May, 'June, and July* 1903, when at the special instance and request of the defendant-it began to ship the pig iron at intervals, and as ordered and directed by the defendant; plaintiff and defendant agreeing that the-contract above referred to should remain of. force, and that the pig' iron should be shipped and delivered as called for and ordered* through the remaining months of the year 1903. This was done-for the special benefit of the defendant. The contract was treated as of force, through a continuous correspondence between plaintiff' and defendant, until the date of the refusal to accept the pig iron, above referred to. It is alleged that the defendant knew, at the-date of the contract, that it was contracting with plaintiff; that the statement, “for account of the Woodstock Iron Works,” in the contract, was understood by plaintiff and defendant to mean a purchase from plaintiff, as seller, by defendant, as buyer, and was so acted on and treated through the entire transaction; and that the defendant knew that Rogers, Brown & Co. and C. E. Eoust were agents and subagent of plaintiff, in securing the order contained in the contract. The defendant filed demurrers, both general and special, which being overruled, the defendant excepted.</p>

<p>1. A ground of a motion for a new trial complaining of the admission of evidence, oral or documentary, can not be considered unless the evidence ' objected to is set forth; either literally or in substance, in the motion itself, or is attached thereto as an exhibit.</p> <p>2. The evidence warranted the verdict.</p>

Complaint. Before Judge Hamilton. City court of Floyd county. December 2, 1905. W. H. Ennis, administrator of the estate of M. C. Mathis, brought suit upon two promissory notes, against John H. Reynolds as indorser. The notes were for $175 each, payable to John II. Reynolds, at the First National Bank, signed by S. T. Rhudy, trustee for children, and indorsed in blank by John II. Reynolds.

<p>Complaint. Before Judge Lewis. Putnam superior court. September 18, 1905.</p>

<p>Complaint. Before Judge ■ Lewis. Putnam superior court. September 18, 1905.</p> <p>Reid, receiver of the Putnam County Banking Company, brought suit against Mrs. S. E. Jones, and alleged; that the bank was insolvent, and had no assets sufficient to pay its debts and liabilities; that as receiver the plaintiff had been ordered to bring suit against the stockholders of the bank for the purpose of enforcing against them the liability imposed by statute upon such stockholders; that under the charter of the bank the stockholders were made individually liable for the debts of the bank, in addition to their subscriptions to its capital shares, an amount equal to their subscriptions; that at the times the debts enumerated in the petition were contracted, and at the time of the failure of the Putnam County Banking Co., the defendant was a stockholder in the bank, and the owner of 55 shares of the par value of $2750. Judgment was prayed against' her in that sum. By amendment it was alleged that the fifty-five shares of stock standing in the name of the defendant, and sued on in the original petition, “were subscribed for by her to the capital'stock of said Putnam County Banking Co. and represent her subscription to said capital stock of said company.” The amendment was not allowed, and upon motion the petition was dismissed. To these judgments the plaintiff excepted.</p>

<p>Motion to set aside judgment. Before Judge Lewis. Putnam superior court. September 19, 1905.</p>

Appeal. Before Judge Pendleton. Fulton superior court. November 3, 1905. Byan brought suit against Shumate on a contract, and to avoid the effect of a plea of a discharge in bankruptcy, which was filed by said defendant, the plaintiff was allowed to amend his petition by alleging a new promise to pay, made since the adjudication in bankruptcy and before the suit on the contract was brought.

<p>Foreclosure of mortgage. Before Judge Lewis. Jasper superior court. ,November 3, 1905.</p>

<p>1. A plaintiff who sues to recover damages for a personal injury may embrace in his petition two or more separate counts, setting forth different accounts of the manner in which he was injured, so as to meet any anticipated variations in the proof which may be adduced at the trial; and a judgment striking one of the counts on the ground that no cause of action is therein stated will not be a bar to his prosecution of the suit upon another count in his petition.</p> <p>(a) An order allowing a plea of res adjudicata to be filed, over the objection of the plaintiff, as a part of the defendant’s pleadings, is not to be regarded as conclusive upon the former as to the merits of the plea, when the order expressly recites that the court does not undertake to pass upon the question whether or not the plea sets up a good defense.</p> <p>(if So long as the case is in limine and there is no estoppel of which the party filing the plea may take advantage,, it is within the power of the court, of its own motion, to order it stricken as legally insufficient in matter of substance, or to instruct the jury to disregard the defense thereby sought to be interposed.</p> <p>{e) If the plea be without merit and there is no estoppel upon the plaintiff to call into question its legal sufficiency, the defendant can not justly complain that the trial judge entirely ignored it when instructing the jury as to the issues involved in the ease, and thus deprived the defendant of all benefit of the defense of res adjudicata.</p> <p>:2. That the presiding judge, when undertaking to state the contentions of the respective parties, omitted to say that the defendant contended the injury to the plaintiff was caused purely by an accident will not afford cause for a new trial when it affirmatively appears that the judge, before ■concluding his charge, gave to the defendant the full benefit of this branch of the defense by instructing the jury that the plaintiff would not be entitled to recover “for purely an accident, that neither party was responsible for.”</p> <p>'3. After the plaintiff in a suit against a railway company shows that he was injured by the running of one of the defendant’s cars, the burden is on the company to make out its defense, as there will then arise a presumption of law that the defendant was negligent as charged in the plaintiff’s petition; and this is true although he may allege, in different counts, that the injury occurred in either one of two ways, because of ■ various acts of negligence on the part of the company.</p> <p>4. It was not incumbent on the court, in its charge to the jury, to deal separately with the two counts in the petition, as though two distinct and independent cases were on trial, nor to instruct the jury to inform the court on which count they found, in the event they returned a verdict in favor of the plaintiff.</p> <p>5. The verdict was neither contrary to the evidence nor excessive in amount; and, in view of the counter-showing made by the plaintiff, the defendant was not entitled to a new trial on the ground of newly discovered evidence.</p>

Action for damages. Before Judge Hamilton. City court of Floyd county. August 29, 1905. This is an action for damages on account of alleged negligence on the part of the defendant’s conductor in putting the plaintiff off the train in which she was riding, at a place different from that at which she had requested to get off, and under circumstances which, it is alleged, tended to aggravate the injury and operated greatly to her inconvenience and distress of mind.

<p>Action for damages. Before Judge Fite. Whitfield superior court. December 15, 1905.</p>

<p>Claim. Before Judge Harwell. City court of LaGrange. August 31, 1905.</p>

<p>Slander. Before Judge EL'odnett. City court of Carrollton. September 23, 1905.</p>

Complaint. Before Judge Harwell. City court of LaGrange. October 25, 1905. The Globe Refinery Company brought suit against B. F. Taylor, alleging that the plaintiff purchased through' “Williams & Flash Co., of New York City, of B. F. Taylor, of Hogansville, Ga., 8 tanks of prime crude C/S oil, at 31 cents per gallon loose at Hogansville and Gainesville, Ga., buyer’s tanks. Delivery: 4 tanks October; 4 tanks November.

Complaint. Before Judge Lewis. Morgan superior ■ court. September 4, 1905. B. TJ. Thomason brought suit against A. 0. Wilson, upon a promissory note made by Wilso$ to John Orr, indorsed by Orr in blank, for $101.16. The note was dated February 2, 1893, and purported to be under seal.

<p>Rule. Before Judge Reagan. Butts superior court. September 8, 1905.</p>

<p>Petition for injunction. Before Judge Spence. -Worth superior court. May 11, 1906.</p> <p>These two eases were argued together, and are decided together, as the questions raised in both are the same, and the decision of the issues in either case necessarily controls the other. On August 29, 1904, the board of commissioners of Worth county levied a tax of $16 on the thousand dollars of taxable property of the county, the proceeds of which were to be used for the erection of a courthouse and county jail. On September 6, 1904, contracts were entered into for the erection of these buildings. On October 21, 1904, the commissioners passed an order directing the tax-collector to suspend the collection of said tax, except $6 on each thousand dollar's of taxable property. On March 28, 1906, the board of commissioners passed an order directing the tax-collector to collect the balance of the levy of August 29, 1904, the same being necessary to pay off the indebtedness incurred in erecting the courthouse and jail contracted for on September 6, 1904.</p> <p>This case was substantially before this court at the last term when an injunction was granted restraining the commissioners from collecting a new- levy made in 1905. Johnson v. Pinson, 126 Oa. 121, which see for complete statement of facts. But the present action was brought to enjoin the collection of the balance of the levy of 1904, which had been suspended. 'Petitioners allege that the board had no authority to pass an order for the collection of the balance on the levy of 1904; that the power of the board is limited to the year in which the tax was to accrue or to be collected; that no power is vested in the board to authorize the tax-collector to open his books after the same have been closed, and to reassess any tax whatever; that the time given the taxpayers in which to pay said tax was too short; that said board has power only to levy a tax for the purpose of building court-houses or jails, according to contract, and at the time of the levy the board had no contract for said buildings; and that the levy was exorbitant and unnecessary. The defendants demurred generally; and filed, besides a general denial, the pleas of lis pendens and res adjudicata. The trial judge denied the application for temporary injunction, and the plaintiffs excepted.</p>

<p>Complaint. Before Judge Stark. City court of Jefferson. October 6, 1905.</p>

<p>'“Improved lands,” in the sense in -which the phrase is nsed in Civil Code, §3065, which provides that “the right of private way over another’s land may arise .. . from prescription by seven years uninterrupted use through improved lands, or twenty years use over wild lands,” •comprehends the entire tract, though only part thereof be in actual cultivation; the woodland on such a tract is not wild land, but in connection with that portion which is cultivated constitutes a single tract of “improved land.”</p>

Equitable petitiou. Before Judge Eite. Gordon superior court. November 17, 1905. The petition prayed for injunction. The defendant demurred and answered. The demurrer was overruled before the trial, which occurred at the August term, 1905, of the superior court, and resulted in a verdict for the plaintiff.

<p>Complaint. Before Judge Hamilton. City court of FloycL county. September 28, 1905. ’</p>

<p>Temporary alimony. Before Judge -Wright. Floyd superior court. May 11, 1906.-</p>

<p>Action for damages. Before Judge Bartlett. Douglas superior court. November 22, 1905.</p>

<p>Certiorari. Before Judge Reagan. Pike superior court. October 4, 1905.</p>

<p>1. Where the amount due a landlord is measured by the value of the specifics in which the rent is payable, it is competent for the landlord, after a distress warrant has been converted into mesne process by the filing of a counter-affidavit, to amend his pleadings by alleging the value of the specifies claimed is of a larger sum than that originally named in the affidavit upon which the distress warrant issued.</p> <p>2. If it is desired to review by direct exception the ruling of the trial - court in rejecting an amendment to the pleadings, the proffered amendment, either literally or in substance, must be set out in the bill of exceptions or attached thereto as an exhibit. The reference in the bill of exceptions to the nature of the rejected amendment is too general and indefinite to raise any question for adjudication.</p> <p>3. Even if the ruling of the court rejecting an amendment to a defendant’s pleading may be reviewed on the motion for a new trial, a copy of the rejected amendment, literally or substantially, must appear in the motion before the court will be called on to review such ruling. When an amendment to pleading is rejected, the party offering it must abide the court’s ruling and can not introduce evidence to support the allegations therein; his remedy is to except to the ruling on the amendment and in this way test its legal sufficiency.</p> <p>4. The verdict is supported by the evidence.</p>

Action for damages. Before Judge Beagan. Terrell superior court. November 28, 1905.

<p>1. Objection was made by defendant to the introduction in evidence of an item in the will of plaintiff’s ancestor, containing the following language: “I desire that all my negroes, as also other property, be appraised and equally divided among my sons. . . . and at their death to go to their children.” The objection to said item was based on the ground that it “did not bequeath any land, did not convey any title to any land, and was therefore irrelevant.” Held, that there was no error in overruling said objection and admitting the evidence. Under the language of the will quoted, the sons of the testator took a life-estate in whatever land the testator died possessed and seized of, and their children took a remainder interest in the same.</p> <p>2. The admission of the other evidence objected to, if error, was not hurtful to the defendant, because substantially the facts which were sought to be established by said evidence were admitted by his pleadings.</p> <p>3. In a suit to recover land, the defendant who has bona flde possession of such land under adverse claim of title may plead as a set-off the value of all permanent improvements bona fide placed thereon by him.</p> <p>4. If the life-tenant, assuming to act as trustee for the remaindermen under a void order of the court, sold the fee and received the purchase-money of the wholej and if he afterwards invested some of that purchase-money in other lands; and the remaindermen, after their attainment of majority and not laboring under any disability, after the death of the life-tenant appropriated these other lands to their own use with knowledge of all the material facts, their so doing was a ratification of the sal& and conveyance of their estate in remainder by the trustee, and they would be estopped from recovering from the purchaser their remainder-interest.</p> <p>5. Assignments of error upon the admission of evidence will not be considered unless the evidence is set out in such a manner that the question, of its admissibility can be decided without reference to other parts of the record; nor will assignments of error in a bill of exceptions, upon, the allowance of an amendment of the pleadings, be considered when such amendment is not set forth either literally or in substance nor attached as an exhibit nor specified as material to a clear understanding of the errors complained of.</p>

<p>A paper in the form of a will, which has these words written thereon: her “Charlotte Young,” immediately following the writing in which a disposition of the property of Charlotte Young is made, and just preceding an attestation clause declaring that Charlotte Young executed the paper as her last will in the presence of the three subscribing witnesses, was duly probated. The judgment of probate was not ,void and open to collateral attack on the ground that the paper on its face showed that it had never been signed as a will.</p>

Action for damages. Before Judge Freeman. Troup superior court. November 7, 1905. The plaintiff alleged in his petition that the railroad company had injured and damaged him in the sum of $5,000, by reason of the following facts: On June 15, 1903, he purchased from the company’s agent at Gabbettsville a ticket entitling him to passage •over its line to Atlanta and return, and used the ticket in going to Atlanta on that date.

<p>Motion to vacate judgment. Before Judge Reagan.’ Butts superior court. August 25, 1905.</p>

<p>Certiorari. Before Judge Lewis. Morgan superior court. September 14, 1905.</p>

Equitable petition. Before Judge Lewis. Morgan superior court. September 21, 1905. This is a petition for equitable relief. Upon demurrer the action was dismissed upon the ground that the court to which the suit was brought did not have jurisdiction. This is the only question for consideration. Floyd Jackson, Robert Jacksdh, and Frank Jackson were the plaintiffs .and filed the petition to the superior court of Morgan copnty.

Trover. Before Judge Reid. City court of Atlanta. December 14, 1905. For tbe purpose of aiding in the construction of a contemplated suburban electric railway, certain landowners made donations of land and gave rights of way.

<p>1. In a suit for damages on account of personal injuries received .by a servant of a railroad company, resulting from negligence of the defendant, in which two distinct grounds of negligence are alleged as a basis for the recovery, it is essential that the plaintiff should make such a.lle■gations as would amount to a declaration that he was free from fault with respect to each ground of negligence upon which it is relied for a recovery.</p> <p>2. Where suit was brought by a ear-coupler against the railroad company for an injury received while engaged in coupling, and one^ground of negligence alleged and insisted on was that one of the cars to be coupled had no drawhead and no means or instrument with which to couple it to others, an allegation that the plaintiff had no opportunity to examine the coupling apparatus of said defective car was not an allegation that he did not know that it was defective; and where by special demurrer this point was distinctly raised, it was error to overrule it.</p>

<p>Certiorari. Before'Judge Reagan. Monroe superior court. September 1, 1905.</p>

<p>Petition for injunction. Before Judge Reagan. Pike superior court. June 2, 1906.</p>

<p>Trover. Before Judge Burch. City court of Dublin. December 7, 1905.</p>

<p>Certiorari. Before Judge Lewis.' Jasper superior court. November 1, 1905.</p>

<p>Complaint for land. Before Judge Lewis. Greene superior court.. December 27, 1905.</p>

<p>Complaint for land. Before Judge Beagan. Muscogee superior court. September 16, 1905.</p>

Action for damages. Before Judge Little. Muscogee superior ■court. December 9, 1905. The exception was to the overruling of a demurrer to the petition, the material allegations of which were, in brief: The defendant company operated a railroad and hauled freight-cars through and across certain streets of Columbus. An ordinance of that city lequired that cars should not be propelled through the streets at a .speed greater than six miles per hour.

<p>Injunction. Before Judge Little. Muscogee superior court. June 4, 1906.</p> <p>The Acme Brewing Company filed its equitable petition against the tax-collector and sheriff of Muscogee county, seeking to enjoin the collection of an execution issued against it for a special tax. The application for injunction was submitted to the presiding judge upon the pleadings and an agreed statement of facts, which showed the following: The plaintiff is a brewing company engaged in the brewing and manufacture of beer at Macon, Bibb county, -Georgia,, with its principal place of business located there. It has established a branch office in Columbus, Muscogee county, from which it fills orders for beer when the territory in which they have been received is more convenient to its branch office than to its main office. The plaintiff fills orders only from the product of its own brewery in Bibb county. The beer used in filling orders by the branch office is stored in Muscogee county for that purpose, but it is brewed in Bibb county. It is simply kept and stored in Muscogee county for more conveniently filling such orders as it receives from the neighboring territory. Plaintiff has paid to the tax-collector óf Bibb county $300, being the tax imposed by the first part of paragraph 28, section 2, of the general tax-act of 1905, upon every brewing company engaged in the business of brewing or manufacturing beer. It pays no tax in Muscogee county. The tax-collector- of that county has issued an execution, claiming that it is also liable for the payment of a special tax there, and such execution has been levied upon the property of the plaintiff. The presiding judge granted the injunction, and the defendants excepted.</p>

<p>Action for penalty. Before Judge Beagan. Terrell superior court. December 7, 1905.</p>

<p>Complaint. Before Judge Reagan. Terrell superior -court. December 9, 1905.</p>

Indictment for adultery. Before Judge Peeples. City court of Nashville. October 6, 1906. Upon both direct and circumstantial evidence the accused was convicted, and he excepted to the refusal of a new trial. The special grounds of the motion for new trial are, in brief: 1.

<p>Complaint on note. Before Judge Crisp. City court of Americus. November 4, 1905.</p>

<p>Injunction. Before Judge Pendleton. Fulton superior court.. June 15, 1906.</p>

Petition for injunction. Before Judge Fite. Bartow superior court. October 5, 1906. On September 27, 1906, Thomas H. Baker, as a citizen and taxpayer of 'the City of Cartersville, brought an action against that municipality to enjoin it from issuing and selling certain bonds.

Injunction. ' Before Judge Pendleton. Fulton superior court. September 13, 1906.

<p>1. When a demurrer embracing several grounds is sustained in part, and one of the parties, desiring a review of the ruling adverse to him, sues out a bill of exceptions, the correctness of so much of the judgment as is in his favor does not come under review; and where no cross-bill of exceptions is sued out by the adverse party, so much of the judgment on ■ the demurrer as is not under review will be treated as correctly defining and applying the law of the particular ease on the matters involved.</p> <p>2. Where a policy of insurance named A as beneficiary and stipulated that there could be no change of the beneficiary without A’s consent, and A in writing subsequently released all her interest, present and prospective, to the insured, who then assigned the policy to B on condition that he reserved the right to change the beneficiary (the insurance company assenting to this assignment), and afterwards the insui'ed, with the consent of the insurance company, assigned the policy to C, who was the holder thereof at the death of the insured, Held, that B’s interest in the policy by virtue of the written assignment was subject to the right of the insured, during his lifetime, to substitute another beneficiary in his stead, and that B’s interest in the policy was defeated by the subsequent assignment by the insured of the policy to 0.</p>

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

<p>Complaint. Before Judge Proffitt. City court of Elberton. January 12, 1906.</p>

<p>Where several tenants in common brought a joint action for the recovery of land, and the defendant in his plea filed separate defenses, one to the-effect that one of the joint plaintiffs was estopped from suing for the recovery of the lajid, and, for that reason, that none of the joint plaintiffs, should recover, the other being that the defendant under color of title and in good faith had been in possession of the land for a sufficient, length of time to obtain a title by prescription; and where upon the' trial, the case, by consent, having been submitted to the judge to pass, upon the la.w and the facts, the judge rendered a general judgment in favor of the defendant without specifying upon which plea the judgment was rendered; and where to a subsequent suit against the same defendant, by some of the former plaintiffs suing severally for the recovery of the same land, a proper plea was filed, setting up the former suit and judgment therein as an estoppel by judgment, it was competent for the defendant, in support of such plea, to introduce extrinsic evidence to show that the question actually passed upon by the judge in rendering judgment in the former suit was as to whether or not the defendant had a good prescriptive title. In such case, if the judge actually based his decision on that question, his judgment would be conclusive against the plaintiffs, and they could not recover in the second suit. It follows that the court erred in excluding from evidence, upon the ground of irrelevancy, certain extrinsic documentary and parol evidence tendihg to show that such was the ruling of the court.</p>

Petition for injunction. Before Judge Spence. Decatur superior court. October 6, 1906. Held: the act was adopted by popular, vote, and the defendants who are named as school trustees were elected as such and organized by electing from their number a president, vice-president, secretary and treasurer.

<p>Action for damages. Before Judge Wright. Walker superior court. August 23, 1905.</p>

<p>Ejectment. Before Judge Lewis. Laurens superior • court. July 25, 1905.</p>

<p>Petition for injunction. Before Judge Freeman. Troup superior court. April 24, 1906.</p>

<p>Where one is indicted jointly with others for murder, and it appears upon the trial that there was an actual homicide committed hy another of the defendants than the one on trial, it is not competent, under that indictment, to convict the defendant on trial of a separate and independen! “assa/iilt with intent to murder,” which he may have committed upon the’person slain, immediately before the firing of the fatal shot, with which he was in no wise connected. It follows that in such a case it is erroneous for the court to so charge the jury as to authorize a conviction of assault with intent to murder, independently of his participation in the particular criminal design which resulted in the death-of the person slain.</p>

<p>Indictment for keeping gaming-house. Before Judge Cann. Chatham superior court. October 9, 1906.</p>

<p>Petition fox certiorari. Before Judge Mitchell. Tift superior court. October 3, 1906.</p> <p>Barker and Bell excepted to the refusal of the judge of the .superior court to sanction their petition for certiorari. From the petition it appeared, that the petitioners were convicted in the city court of Tifton, under an accusation of gaming, and that the evidence introduced on the trial was to the effect that police officers discovered them at night in a closed house, playing a game of cards named “five up,” but that po money was seen. It appeared also that the prosecuting attorney, in his argument to the jury, said) that while he was not allowed to comment on the failure of the defendants to make a statement, he would call on Mr. Smith (their •attorney) to explain it in his closing argument to the jury; that the defendants’ attorneys objected to this statement of the prosecuting attorney and requested him to withdraw it, but he refused to do so, and they were asked by the court not to interrupt the argument again.. The petition alleges, among other assignments of error, that the verdict was without evidence to support it, and that the court erred in failing to declare a mistrial, or rebuke the prosecuting attorney, or instruct the jury in reference to his remark as .above set out.</p>

<p>Petition for certiorari. Before Judge Mitchell. Tift superior court. October 3, 1906.</p>

Indictment for forgery. Before Judge Brand. Clarke superior court. November 5, 1906. E. W. Jordan was convicted of forgery, with a recommendation that he be punished as for a misdemeanor. The recommendation was, however, disregarded by the court, and sentence to five years imprisonment in-the penitentiary was imposed.

<p>1. The certificate of the trial judge to the bill of exceptions can not be amended in this court by changing the date thereof to a different date.</p> <p>2. When the entries on the original bill of exceptions disclose that it was filed in the office of the clerk of the trial court more than fifteen days after it was certified by the judge, the writ of error will be dismissed.</p>

<p>Accusation of larceny from house. Before Judge Crisp. City court of Americus. October 17, 1906.</p>

<p>Indictment for vagrancy. Before Judge Little. City court of Sparta. October 20, 1906.</p>

<p>Indictment for selling liquor. Before Judge Beagan. Henry superior’court. October 27, 1906.</p> <p>Hope Meadows was convicted under an indictment charging Mm with having sold spirituous and intoxicating liquor without a license. On the trial Lee Williams testified: “Hope Meadows worked for me for standing wages. . . He remarked he was going to send for Mm some liquor to drink these cold mornings. I handed him a dollar and told him to order me some too. After .several days Clarence Weems came to my house and said Hope Meadows wanted me to come down to his house. I went down and Hope said our liquor had come. He then poured mine into a quart bottle, and poured from the quart bottle into another jug. I got nearly a half gallon. I do not know whether any was left in the jug or not, after he poured out mine. It came in a gallon .jug.” Clarence Weems testified: “Hope Meadows gave me $2.30 and asked me to send and get a gallon of liquor. I sent $2 to Atlanta for the liquor, and ordered it in my name, and it was .shipped in my name; got the jug from the express office at McDonough and carried it to Hope Meadows’ house, and Hope asked me to go up to Mr. Williams’ house and tell him to come down, that he wanted to see him. Mr. Williams came back with me and got the jug out and brought it back with him. It was the same jug .1 bought. I did not see them divide the liquor. I was not in the room.” The accused, in his statement to the jury, said: “I did not sell any liquor to Mr. Williams. . . I took Mr. Williams’ money ■and had his sent with mine, for his accommodation, and did not know I had done anything wrong. I gave the money to Clarence Weems, and he sent in his own name for the liquor and brought it to me, and . . I told him to . . tell Mr. Williams our liquor had come. Mr. Williams came and we divided the liquor.”</p> <p>One of the grounds of the defendant’s motion for a new trial, the overruling of which is assigned as error, is that the court erred in charging the jury as follows: “If you find from the evidence that the witness, in the case delivered to the defendant money with which to order whisky for him — dor the witness; if you believe that the defendant ordered whisky for himself as well as the witness, through another party, and gave the money to another party, and through that party ordered the whisky; and if it was delivered to the defendant by the other party in bulk, — that is, the whisky all together; and if from that bulk he received in bulk in this county, and if in this county he separated it, — that is, took a portion of it'from the bulk and delivered it to the witness, in consideration of the money he had received from him, and that all oc■curred in this county, . . that would be a sale in law, and a sale in this county. The sale would not be complete until the ■whisky was delivered to the witness by the defendant, and it would not be delivered until it was separated from tbe other whisky, if it was in bulk.” It is alleged that this charge was error because-it does not contain all the elements of a sale, — that is, identification of the thing sold, agreement as to the price to be paid, and consent of the parties, and does not apply to the facts of the case,, and is misleading, and fails to set out a contract of sale.</p>

<p>Indictment for assault and battery. Before Judge Geiger. City court of Mount Vernon. October 9, 1906.</p>

<p>Indictment for misdemeanor. Before Judge Spence. Decatur superior court. November 23, 1906.</p>

<p>Certiorari. Before Judge Littlejohn. Stewart superior court. October 29, 1906.</p>

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

<p>Accusation of keeping open tippling-bouse on the Sabbath, day. Before Judge Norwood. City court of Savannah. October 26, 1906.</p>

<p>Indictment for murder. Before Judge Gober. Cobb superior court. October 22, 1906.</p>

<p>■ Accusation of larceny from house. Before Judge Nicholson. City court of Abbeville. November 23, 1906. .</p>

Action for damages. Before Judge Hodges. City court of Macon. -September 9, 1905.

<p>Appeal. Before Judge Felton. Bibb superior court. January 4, 1906.</p>

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

<p>Equitable petition. Before Judge Wright. Polk superior court. November 22, 1905.</p> <p>This ease arose upon an .equitable petition filed by Mary A. Gammon against Hogg, for the recovery of certain lands and tbe establishment of a dividing line between the premises of plaintiff and defendant. The premises in dispute are part of lot No. 452 in the 21st district of Polk county, which lot was originally owned by one Moultrie, from whom both plaintiff and defendant derive title. The deed under which plaintiff claims describes the lands contended for by her as follows: “So much of lot of land No. 452 . . as lies on the west side of line running through said lot and straight with a line from-dividing the lands of said Whatley from the lands of Wm. Hogg, containing eight acres, more or less.” Plaintiff alleges that the said line dividing the lands of Whatley from the lands of Hogg, referred to in the above deed as fixing the line in dispute, has been changed since the date of said deed, and is not now a straight line, and can not be relied upon for the purpose of locating the line in controversy. And plaintiff further contends that the line sought by her to be established as the true dividing line had been acquiesced in as such by the adjacent owners for the time required by law; and she claims the lands lying west of said line by prescription. The evidence upon this issue was voluminous and conflicting. Said dividing line was intersected some distance from its southern extremity by a wagon road running east and west, south of which road the line contended for by plaintiff deflected considerably from a straight course. There was evidence from which the jury might have found that plaintiff had been in actual possession of the lands north of this road by using the same as a pasture; but there was no pasture on the lands in controversy south of said road, and the evidence was conflicting as to whether plaintiff or defendant was in possession of the lands south of this road. The jury returned a verdict in favor of the plaintiff, for the entire tract in controversy. The defendant made a motion for a new trial, which was overruled, and he excepted.</p>

<p>1. An executory agreement for the sale of goods to be delivered at a future day is valid, though at the time it is made the seller has not the goods in his possession, has not contracted to purchase them, and has no expectation of acquiring them otherwise than , by purchasing them at some time before the day of delivery. *</p> <p>2. Such a transaction is not invalid unless it is made to appear that neither of the parties contemplated an actual delivery of the goods, and it was the intention of both that there should be' no actual delivery, but; on the day fixed for the delivery there should be a settlement of differences, based on the market value of the goods on that day. In that event the transaction would be a bare speculation upon chances; but not otherwise.</p> <p>3. When a contract is valid upon its face, it is incumbent upon him who attacks it to show its invalidity.</p> <p>4. An averment in a petition, that the plaintiff had purchased of the defendant a specified quantity of a given article, at a stated price, to be delivered at a stated time and place, is a sufficient allegation that the plaintiff had agreed to receive the article at the time and place fixed, and to pay for the same.</p> <p>5. The petition was not subject to any of the grounds set forth in the demurrer; and the uncontradieted evidence demanded a finding for the plaintiffs.</p>

Certiorari. Before Judge Littlejohn. Sumter superior court. December, 1905. The W. A. Doody Company brought' suit, in a justice’s court, against Mrs. A. S. Jeffcoat and M. J. Patterson, doing business-under the firm name of Patterson Auction Company, upon an account.

<p>Levy and claim. Before Judge Mitchell. Lowndes superior court. November 22, 1905.</p> <p>Potts-Thompson Liquor Company sued out an attachment against G. D. Cox, for $674.97, besides interest, alleged to be due on an open account for liquors, etc. The petition on which the attachment was issued alleged, that the defendant had sold to W. B. Par-ham & Company his stock of goods, wares and merchandise in bulk, consisting of a stock of liquors and bar fixtures in a certain storehouse, in violation of the act of the legislature, “to regulate the sale of stocks of goods, wares and merchandise in bulk,” approved August 17, 1903 (Acts 1903, p. 92), in that the purchasers failed to give notice, personally or by registered mail, to the plaintiff, or to any of the creditors of the defendant, of said sale, the price to be paid, or the terms and conditions thereof, together with a copy of the statement of the assets and liabilities of the vendor, or to comply with any of the provisions of said law; and that the sale and failure to give notice as aforesaid was fraudulent as to the creditors of the defendant, including the plaintiff, and was made for the purpose of avoiding the payment of said debt, said property being liable for the payment thereof. The attachment' was levied on property described in the entry of levy as “the following goods, to wit: 3 whole bbls & 2 half bbls each about half full 1 keg wine 4 gal in bots. 2 cash registers one set bal. fixtures on white side 1 set fixtures on col. side, 1 safe, 1 roller top desk, 2 cigar cases, one pool table, 1 refrigerator, 1 bureau, 1 lot of role and roping paper.” W. B. Parham & Company filed a claim to the property, and, on the trial of the claim, filed, in connection with it, additional pleading, as follows: (1) The plaintiff can not recover, the act of 1903, relied on, being unconstitutional and void. (2) That the goods levied on are the property of the claimants and not subject to the attachment or to plaintiff’s claim, because, at the time the purchase was made, claimants demanded of the seller the names of all his creditors, their addresses, and the amounts due' them respectively, and the seller told claimants he owed no one except Garrett, Williams & Company, of Baltimore, Md., and wanted them paid out of the purchase-money of the stock, and that he had on hand a few goods consigned to him by the Dalton Grocery Company, which would be returned; that the same were returned, and that claimants, before paying the purchase-money, paid the claim of Garrett, Williams & Co., in the sum of $800, and paid the balance, to wit, $329, to the seller; that claimants acted in good faith, paid all the debts of the seller, reported to them, and purchased on the strength of the statement that there were no creditors after the payment to Garrett, Williams & Co. (3) The amount paid to Garrett, Williams & Co. was more "than the amount of. plaintiffs claim; and claimants having paid to creditors more than plaintiffs claim, the property is not subject; and in no event would ¡Dlaintiff be entitled to recover or have the property subjected to plaintiff’s claim for a larger amount than plaintiff’s pro rata of-the purchase-money, paid after summing up all the debts and liabilities of the seller. (4) The entire amount of the purchase-money of the goods was $1,129, and only a part of the same was goods, wares, or merchandise within the meaning of said statute, and the value of the same was only $229. (5) The bar fixtures, safe, desks, cash registers, cigar eases, pool table, refrigerator, and. other items than liquors, are not “goods, wares, or merchandise,” within the meaning of said statute; and are, for this reason, not subject to plaintiff’s claim, and are of the value of $900. Claimants pray that in no event the plaintiff be permitted to recover a larger amount than plaintiff’s pro rata share of the claims against the defendant, “and especially of pro rata share of claims of plaintiff and other claims paid, claimants having also paid claims of Dalton Grocery Company for $70.”</p> <p>On the trial, when the plaintifE offered in evidence the attachment and the entry of levy, the claimants objected, and moved to dismiss the levy, because it did not show what interest the defendant had in the property, and did not show that it was levied on as the property of any one. They moved to dismiss the levy as to the barrels and half barrels, because it did not appear what the contents were. The court overruled the motion to dismiss, and admitted in evidence the attachment and the entry of levy. The declaration in attachment and a judgment entered on it in favor of the plaintiff were then admitted in evidence, over the objection of the claimants, that “it did not set out any facts, or the verdict of a jury, and is not a judgment in favor of the plaintiff against the defendant in attachment, and is not a judgment against the property, but simply a judgment ordering the sale of the property, and directing a recovery out of the proceeds.” The levying officer testified that the property levied on was pointed out to him by a member of the claimant’s firm, as the property of G. D. Cox, that he had bought from G. D. Cox. The secretary and treasurer of the plaintiff company testified to the indebtedness on which the attachment was based, and that the plaintiff had no notice that the sale in question was contemplated, and knew nothing of it until after it had been made, and was never furnished with a statement of the assets and liabilities of the defendant. J. E. Garnto testified, that he was a member of the firm of W. B. Parham & Company, and bought of Cox the goods in question, paying $1,129 for them. He asked Cox whom he owed, and made special inquiry of him for all names of creditors; and Cox said he owed Garrett, Williams & Company, and said that was all except a few little bills around town, mentioning the Dalton Grocery Company and the Atlanta Paper Company, and saying that the cigars belonged to the Dalton Grocery Company, and that some paper belonged to the Atlanta Paper Company, and that the same could be paid for or returned. Witness did not buy the paper, but paid the Dalton Grocery Company about $70, and paid $800 due Garrett,' Williams & Company, paying the $800 out of the purchase-money of the stock and fixtures. There was no inventory of the stock, and no written statement of creditors, and none was demanded. Witness paid all the creditors that Cox told him of. He got no written statement of assets and liabilities, because Cox claimed he did not have any liabilities. Cox did not cl arm to owe Potts-Thompson Liquor Company anything. Of the items levied on; the bar fixtures, cash register, safe, desk, and pool table were valued at $900; which would leave other goods of the value of $229. “The goods levied on were part of the goods bought of Mr. Cox, I guess. Was not there when levy was made.” The claimants objected to the following testimony of this witness, brought out on cross-examination: “I do not know what was in the barrels; there were several parts of barrels, rum, gin, wine, apple brandy, etc.;” the objection being that the contents of the barrels were not levied on. The court overruled the objection.</p> <p>The court directed a verdict finding all the property subject, and the claimants excepted, assigning as error the rulings stated.</p>

<p>Indictment for trespass. Before Judge Gober. Milton superior court. November 7, 1906.</p>

<p>Accusation of selling liquor to minor. Before Judge Thomas. City court of Baxley. September 22, 1906.</p>

<p>1. The dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world.</p> <p>2. The word “creditors,” as thus employed in the statute (Civil Code, § 2634), is not limited to persons who were creditors at the time'of the dissolution. A person who had previously sold goods and given credit, to the firm during its continuance was' within its meaning.</p> <p>3: Actual notice must be given to creditors.</p> <p>4. As to the notice which must be given to the world, no inflexible rule can be laid down. Pair and reasonable publication in a public gazette circulated in the locality in which the business of the partnership has been conducted is generally sufficient; and any means of fairly publishing the fact of such dissolution as widely as possible, in order to put the public on its guard,' are proper to be considered on the question of such notice.</p> <p>5. General reputation of the dissolution in a community where a person sought to be charged with notice resides, or in the business community to which the parties belong, is admissible as tending to show notice. Such general reputation or notoriety is not itself notice, but is admissible for the consideration of the jury in determining whether there was notice.</p> <p>•6. A witness can not state his mere conclusion that others than himself knew a fact.</p> <p>.7. The evidence offered with the view of showing notice to the plaintiff in this ease was not sufficient for that purpose, and was properly excluded. Some of it failed to measure up to the requirements of admissibility under the rules stated in the preceding notes, and some was secondary .in character.</p> <p>S. Parol evidence of a letter -written by one person to another, and what was printed on the stationery used, was properly excluded, in the absence of any foundation being laid therefor.</p>

Complaint. Before'Judge Holden. Hancock superior court. January 1, 1906. On January 17, 1905, Minnie Margaret Watkins brought an action against William T. Harrison, alleging, .that the will of W. D. Harrison was duly probated on July 2, 1877, and contained the following bequest: “I leave in the hands of my son Wm.

<p>1. Before Heirs at law of am intestate can recover land which" belonged to the estate of their ancestor, they must allege and prove that there was no administration on the estate, or, if there be an administrator, that he has assented to their bringing .suit.</p> <p>'2. The lack of administration may be shown by the testimony of any person that he has examined the records’ in the ordinary’s office of the county in which letters of administration should have been taken out, and that the records do not show that letters were granted.</p> <p>•(a) A witness will not be permitted to testify that no administration was ‘ ever had on a particular estate, until it is made to appear that such witness- has examined the records.</p> <p>(6) Want of administration on the estate of a decedent is not established by proof from a witness that he has examined, or is familiar with, the records in the ordinary’s office of the county of the decedent's residence for a portion of the period between the decedent’s death and the bringing of the suit by his heirs at la\y, and that nothing appeared on the records so examined to indicate that the estate had a legal representative.</p>

Action for damages. Before Judge Beagan. Henry superior court. October 19, 1905. Gardner sued the Southern Bailway Company, alleging that the defendant had damaged him by its failure to deliver, within a reasonable time, a car-load of corn, purchased of Brooke, in Memphis, Tennessee. The corn was delivered to the Kansas City, Memphis & Birmingham Bailroad Company, at Memphis, which issued its bill of lading on March 14, 1903, to Brooke, who indorsed it over to the plaintiff.

<p>1. When a policy of insurance provides that “the assured may require the cancellation of the policy at any time,” but does not prescribe the manner in which notice of cancellation must be given, before the cancellation becomes effective it must appear that notice of the cancellation was re- ■ ceived by the company.</p> <p>2. Evidence that a letter was written to a given person does not authorize the presumption that he received it, unless the evidence also shows that such letter was properly addressed, duly stamped, and deposited in the mail.</p>

<p>Complaint. Before Judge Henderson. City court of 'Vienna. 'November 1, 1905.</p>

<p>Complaint. Before Judge Harrell. City court of Bainbridge. December 18, 1905.</p> <p>Cited in the briefs: Civil Code, §§ 3550, 3637; Ga. R. 81/704; 95/518; 116/108; 106/864; Clark on Contracts, 37; Pars. Con. (6th ed.) 475; 56 Am. R. 371; 3 L. R. A. 94.</p>

<p>Action for damages. Before Judge Crosland. City court of Albany. December 12, 1905.</p> <p>The widow of Boquemore sued the Albany and Northern Railway Company for damages on account of his death, alleging, in substance, that while he was in the discharge of his duty as an employee of the defendant, inspecting a car on a sidetrack where it had been placed for that purpose, an engine of'the defendant ran at high speed into the sidetrack and struck the car at the end opposite to the end he was inspecting, and caused it to run over him, thus causing his death; that by mistake a switchman, who was inexperienced and incompetent, had set a switch so as to allow the engine to go oh. that track, though it was contrary to rule and custom for engines to go on it at that time of. day; that no warning of the approach of the engine was given, and its approach could not be seen and could not have been anticipated by the plaintiff’s husband; that he was without fault, and that the setting of the switch in the manner stated, the employment of an incompetent switchman, the running of the engine at high speed, and the failure to give warning of its approach, were each negligence on the part of the defendant. The defendant in its answer denied the allegations as to its negligence, denied that the plaintiff’s husband was at his post of duty, and averred that at the time of the injury he was in a perilous place, out of’the line of his duty, and that his death was due to his own negligence. A nonsuit was granted, and the plaintiff excepted.</p> <p>From the evidence it appeared, that Eoquemore was in the railroad yard, standing at the rear or south end of passenger-car No. 35 (or 55), on a sidetrack known as the “scales track,” when an ■engine of the defendant ran 'into the north end of the car, and drove it back upon him, causing his death. Lockett, the defendant’s foreman, who was running the engine, testified, that “the accident was caused by the switch being thrown on the scales track instead of the shop track.” He was intending to run the engine on the shop track, in order to take it to the shop, and had told the yardmaster that he wanted a switchman to take him to the shop track; and-the yardmaster sent a switchman, who knew that he wanted to go on that track. The switch was set for the shop track, and he told the switchman that it was set right, but the switchman afterwards changed it. He looked out and saw that the engine was on the wrong track. As soon as the engine got on it, he put on brakes and .reversed the engine. He did not blow the whistle or ring the bell, for there was no time to do so. The engine was then moving at the rate of four or five miles an hour, and was abcrat 20 feet from the car and about 10 feet from the switch. The engine had air-brakes, but air-brakes in good condition could not stop it within 30 feet. In his opinion it was impossible to stop the engine before striking the car. It was not going as fast as two miles an hour when it struck the car. It knocked the car about 100 feet. It was down hill. Eoquemore was standing near the yardmaster when the witness spoke to the yardmaster, and when the yardmaster gave his orders, before the witness started with the engine.. At that time Eoquemore was “between the mainline track and the long sidetrack.” The witness took the engine up the track from that point about 200 feet, and then went back and upon'the “scales track,” as before stated. “I had just gone by where he was, and was coming back on another track.” “I did not get out of sight of where he was. . . He knew that I was switching there, and was not standing on the track then. He was in a place of safety. I did not know where he was when I started back on the shop track. _ Unless he had been on the shop track, behind the train, he could have been seen by me anywhere along there. . . He knew I was switching, for I had just passed him. . . All the time, up to the time I struck the coach, if Mr. Eoquemore had been standing in the middle of the track he could have seen me. He was within 200 feet of me all the time. One engine was leav-' ing just as I went to get this one. There was another engine switching there, and cars constantly being switched to and fro. It was necessary to look out for the engines at all times during the day. The Seaboard Air Line used the same tracks. This track that this car was standing on . . was used by the Seaboard Air Line. They used the scales.” “When I went up the long track I saw Mr. Eoquemore on the long side. He was looking at some cars. He was walking alongside the cars when I came back with the engine. I next saw him when they were taking him out from under the car. I do not know what the custom is to do with that coach No. 35, which comes in from Cordele in the morning. They changed them about every day. When cars are set on the scales track or the shop track to be cleaned and inspected, it is the custom for the engine to couple them, or bump them, or anything of that kind. We hit cars in coupling to them only on signals from the crew. On a signal from a switchman, where we know cars are being cleaned, we bump them. We do this only on a signal from a switchman, and not without that unless we have signals to come-in there. I had no such signal. There was not any custom that. I know of about that coach standing still on the track. They set coaches for any track. Sometimes that coach, when it was put-aside there for inspection and cleaning, would be allowed to stand still for a few minutes, and sometimes they would not switch them. They were switching them all day and all night; I mean the car that is being cleaned. I was not backing. I was going forward. . . Exactly at the time the engine hit I was sitting on the box seat. . . Mr. Roquemore was car-inspector. His duties were to look after cars and see if there were any defects in them. He looks after cars when they come in, sees if there are any broken wheels, broken bolsters, and anything wrong. He just had to go along on the outside of cars 'to inspect them. He went to the ends- and inspected the whole ear, ends and sides. They do not go underneath unless there is something around the trucks, brakes, rods,, drums, and things like that. . . This particular coach was put on the most convenient track whenever it was brought in from. Cordele in the morning. It was put wherever they could get it. It was switched backward and forward during the day, to get it out of the way of everything. It had no regular place to be, and no regular time to inspect it. The inspector has to go up and down inspecting the sides of the car. When they get under a coach or work behind, they put up a flag to notify engineers. There was. no flag there that morning or any precaution of any sort taken. Mr. Roquemore could not have been behind that coach but a very short time, not over 3 or 4 minutes, when the engine came back. I had two switches to stop at, and I do not know when he went behind there. . . The drawhead is attached to the end of the platform of the car. You can examine that perfectly from the platform. Hnless it is underneath you can examine every part of the coach under the end without going on the track. You can see-just as well from the side as you can to go on the track, unless it is underneath. . . To inspect from the platform would be perfectly safe. To inspect from either side of the track would not be altogether safé. It would be perfectly safe off-the track. To-be on the track, a person would be liable to be struck at any time of the day while that coach was there. Mr. Roquemore had been working there long enough to know that, and he was a man of ordinary intelligence. The drawhead comes out between two pieces of iron on the end of the car; there are some springs up in there which with the drawhead are also fastened to the coach. A man would not have to go right in front of the drawhead in order to see way back up there, between the blocks or wedges of iron. He could not see at all this way; he could see better at the side of the track. As to the bumpers, there is nothing there that he can see, right in the center of the track, to be any way liable to damage the car. The best place is from the side of the bumpers. If a man looks to one side he can not see any defects on the other. There are no links on the bumpers; they are automatic. These automatic parts are back where they can be seen without going on the track at all. There is nothing there to break but the bumpers, and they can be seen from the outside of the track. He can not see the bolsters from the middle of the track.” The vice-president and general manager of the railroad company testified, that “they usually put this car in what we call'the shop, scale, or rip track. It is put where it is most convenient. Whenever it is necessary to use the various tracks, or whenever it is in the way, it is shifted backward and forward to get it out of the way. . . If any inspector is going under a car to make repairs, they put up a flag, if they were going to work on the track behind a car. That rule was' used by all inspectors. Mr. Roquemore used it when working under a car. . . That track is perfectly clear and straight at the place where the engine came back. The general custom in inspecting cars is to go alongside and look under the cars for any defects that are possible, watching the draft rigging and trucks closely. That is the only safe way. It is unsafe to go under the car without putting up 'the flag, or to go behind a car where he can not be seen. They are switching off and on there all the time. .. . It is only where there is repairing to be done that they put up the flag, — only where they have to go under a car to repair it. At the general work of inspecting they go along the side. The rules do not require them to put out a flag to inspect a car, and it is not the custom to do so.”</p> <p>McGee, a car-cleaner, testified, that he was standing in the door at the rear of the ear, talking to Ro.quemore, when the engine struck the other end of the car. Roquemore was standing in the center of the track, with his arm on .the drawhead of the car. The shock threw the witness back to the middle of the car and on the floor. It went down to the scales, which were not very far,— about two feet. He put on the brakes and stopped it. He had seen Roquemore inspecting cars there daily for four months. Roquemore inspected this car daily, when it came in. “He had not inspected it that day, before he got hurt. I think that coach ■came in on train No. 22 that day. I don’t know what its regular schedule time was to arrive, — I would say about nine or ten in the morning. It came in sort of late the day Mr. Roquemore got hurt. When that coach came in on that schedule every day it was the custom to clean it up. They put it sometimes on the shop track and sometimes on the scale track. It was put on the scale track that day. It was not long after the train arrived that they put it on •one of these tracks. No engine was aiming to come after that car. . . When the passenger came from Cordele every day, the •engine would go over and get that car. That was in the evening about four o’clock. The engine was never allowed to go on that track there the time the coach was left on it, until it was taken away in the afternoon. I and my uncle cleaned the coach every •day. While we were in the ear cleaning it, before it was taken to be carried to the train to go back to Cordele, it was never moved, v . The switchman had not been there long. He was there about .a week. . . He was a switchman in the Central yard before he •came there. . . When the coach was struck . . Mr. Roquemore had just stepped over in the track from the other track. This track is not far from the track this coach was on. . . Standing on this other track and going from the other track to where this •coach was, I don’t know whether he could see that engine coming •or not. «It was in' plain view until he got right on this track behind this coach, and he had just stepped on this track, and if he had looked he could have seen the engine. . . He was asking if I was going to dinner, and I told him ‘Yes/ It was dinner time then. . . Before he started to inspect this car, he stepped up ■on the track and asked me if I was going to dinner, and that was the position he was in and what he was saying at the time he was struck. He was not inspecting the car at that time. He could have asked me that just as well outside of the track or from the ■other track. . . The engine was a good way up the track when he started across from the other track. . . At the time the engine came back I could not see it, but Mr. Roquemore could have-seen it. . . Whenever this car was on the scale track and it was necessary for the railroad to use the scales, they switched it off to one side. . . It was frequent that trains of cars were being pulled out on that track to those scales. It was happening all the time. Whenever this coach happened to be on the track they had to push it to one side to get there. Mr. Roquemope knew all this.. . . In inspecting the cars the inspector goes along the side. He does not have to go in the tracks to look under the cars. He can look better from the side, which is the place for the car inspector. He was not inspecting the car at all when he was on the track. He-was talking to me. When it was necessary to go under the car, they had a little flag they put in the track to notify them that they were there. . . There was no flag there that day. . . The switch which throws the track between the shop track and the scales track is about 50 feet. . . It is not the custom in that j^ard for engines to come back and hit that coach without warning of any kind. I never knew it to hit that coach as hard as it did that-day.” Counsel for the plaintiff, having stated that he had been entrapped by this witness, asked the witness if he had not told counsel that Roquemore called him to the door and said, “Will you go for my dinner?” The witness answered, “Yes. . . He was talking about his dinner.” Afterwards the witness testified: “Nothing passed between us except that he asked me if I was. going to dinner, and I told him ‘Yes.’ ■ I reckon he was aiming to-tell me to get his. He really did not say anything about his dinner.” The plaintiff testified as to the age of the deceased, and there was evidence as to his earning capacity.</p>

<p>Equitable petition. Before Judge Mitchell. Echols superior court. September 12, 1905.</p>

<p>.Levy and claim. Before Judge' Mitchell. Berrien superior court. January 9, 1906.</p>

<p>1. An unconditional assignment of a note given for the purchase of personalty, wherein the seller retains title to the property sold until the purchase-money is paid, does not extinguish the security, but carries it along, and the title retained by the seller becomes vested in the assignee until the purchase debt is paid.</p> <p>2. The title of such assignee will prevail over the lien of a subsequent mortgage, and this result is not altered because the assignee bought the property from the original purchaser after the execution of the mortgage, and took a bill of sale thereto, with a stipulation that the title was conveyed subject to liens of record.</p> <p>3. Parol evidence is inadmissible to explain a plain and unambiguous stipulation in a written contract.</p>

Buie for contempt. Before Judge Parker. Coffee superior court. April 16, 1906. Louise Gray brought an application for alimony and attorney’s fees against her husband, John H. Gray, and, upon the hearing, the judge directed the payment of certain amounts as alimony and attorney’s fees. The husband failed to pay, and the wife applied for an attachment for contempt.

Before Judge Hodnett. City court of ■Carrollton. October 24, 1906. The grounds of the motion for a new trial were approved by the presiding judge on September 4, 1906, and it was ordered that the State show cause on October 16, 1906, why a new trial should not be granted, and that the movant have until that day to prepare and file an amended motion for a new trial, together with a brief of ■evidence in the case.

<p>Accusation of cheating and swindling.' Before Judge Thomas-City court of Baxley. November 7, 1906.</p>

<p>Certiorari. Before Judge Lewis. Jones superior court. October 18, 1906.</p>

<p>Indictment for murder. Before Judge Brand. Walton superior court. November 20, 1906.</p>

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

<p>Action on contract. Before Judge Iiodges. City court of Macon. October 12, 1905.</p>

<p>Action for damages. Before Judge Hamilton. City court of Floyd county. August 29, 1905.</p>

<p>Equitable petition. Before Judge Freeman. Heard superior ■court. September 19, 1905.</p> <p>Maria L. Tbomasson brought suit against Chatman for certain land. She died, and Hodnett, her administrator, was substituted as plaintiff. In her petition she claimed title under a deed made in 1875, and alleged, that in 1892 she instituted an ejectment suit against Chatman and others to recover said land, and, in 1895, obtained judgment in her favor; that in 1897, in pursuance of the judgment, a writ of possession was issued and she was put in possession of the land; that thereafter Chatman, without lawful authority, broke open the dwelling-house on the premises and put a tenant in possession thereof,, and that the tenant remains in' possession, claiming title under Chatman. Chatman, in his answer, alleged, that he was merely a nominal party to the former suit, being at the time of that suit only a tenant of the real defendant, and that he was not bound by the judgment therein; that after the determination of that suit he obtained the legal title to the land, and is in possession, through his tenant, under the newly-acquired title. One of the deeds under which he claimed title was described in the abstract of title attached to his answer as a warranty deed from Jane Dunn to James Ogden, dated January 4, 1854, and recorded January 2, 1896. The plaintiff filed an affidavit of forgery to this deed, and, on the trial'of the issue thus made, the defendant testified, that the deed was lost; that he obtained it from one Johnson, and, in 1897 or 1898, turned it over to his (defendant’s) attorney, and had not seen it since then, though he had made diligent efforts to find it; that it was an old, worn deed, and the clerk had to paste it together before he recorded it;- that he had inquired for the witnesses to the deed, and could not find them; he never knew them, never heard of them, and never made much effort to find them, and never knew Jane Dunn, and he knew nothing of their handwriting. There was other testimony showing that diligent search had been made for the deed, and that it could not be found. There was no further material testimony on the issue of forgery. The defendant offered in evidence the official record of the deed, and counsel for plaintiff, while agreeing that it could be used as ■evidence if a certified copy would be legitimate evidence, objected to it on the ground that a certified copy of the record would not be legitimate evidence, to prove the age of the deed, and that the ■execution of the deed had not been proved by the subscribing witnesses. The court sustained the objection and refused to admit in evidence the record offered, and directed a verdict for the plaintiff •on the issue of forgery.</p> <p>Evidence was submitted on the other issues; and the court admitted in evidence, over objection, the record of the former suit referred to in the third division of the foregoing decision, counsel for the defendant objecting to it on the grounds that it did not show that the parties in that suit and in the present suit were the same, and that it did not show that the same title was relied on by the plaintiff in each. The court directed a verdict in favor of the plaintiff for the premises in dispute. The defendant filed two bills of exceptions, one of them assigning as error the rulings on the trial of the issue of forgery, and the other excepting to the other rulings stated.</p>

Attachment. Before Judge Reagan. Butts superior court. November 23, 1905. An attachment was sued out and levied, and the plaintiff filed a declaration in attachment, properly paragraphed. No traverse or defense was filed. When the case came on for trial, counsel for the plaintiff submitted evidence showing that without their knowledge or consent, and without payment of their fees, the parties had made a settlement of the case.

Complaint for land. Before Judge Lewis. Putnam superior' court. November 10, 1905.- J. A. Wright and two others brought their action against W. H. Sparks, alleging that they were tenants in common of a described parcel of land, of which the defendant was in possession, and that the yearly profits thereof were of a stated value, and that the defendant refused to surrender possession of the land to the plaintiffs, or to pay them the profits thereof.

<p>1. In a proceeding to foreclose a chattel mortgage to secure the payment of a promissory note executed by the defendant to the plaintiffs, it was not error for the court to exclude a “cotton bill” containing a statement of numbers of bales of cotton, their weight and value, issued and signed by a third person, and which only tended to show that the defendant had delivered to such third person the cotton therein specified. In the absence of parol testimony tending to show any connection of the plaintiffs with the transaction of, which the “cotton bill” was evidence, it was irrelevant to any issue on trial.</p> <p>2. Where it appears that after the rejection of the “cotton bill,” defendant’s counsel stated to the court that “all the cotton bills of 1903 and 1904 were similar to the one excluded,” and the court said to counsel, “I do not know what you have here; offer your papers and receipts one at a time, and I will rule on the same as they are offered,” but • no other bill was tendered, a ground of a motion for a new trial, that such ruling was erroneous, is without merit.</p> <p>3. There being evidence from which, the jury would have been authorized to find that after the defendant had given direction for the application of certain payments to the note, for the payment of which the chat'tel mortgage now sought to be foreclosed was executed, he had almost immediately thereafter authorized the application of such payments to other items of indebtedness, it was not error for tbe court to charge the jury that “if, after directing tbe application of payments to mule notes, tbe defendant consented, directly or impliedly, from his acts or words, to a different application of said paymentá from that requested, or acquiesced in a different application of said payments irom that requested, then he would be bound by his acquiescence.”</p> <p>4. It is error for the court to give to the jury instructions presenting issues not authorized by tbe evidence, although the instructions themselves, as abstract propositions of law, may contain nothing objectionable.</p>

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

<p>Garnishment. Before Judge Henderson. City court of Vienna. January 27, 1905.</p>

<p>Petition for injunction. Before' Judge Littlejohn. Crisp superior court. June 2, 1906.</p>

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

Complaint for land. Before Judge Freeman. Heard superior court. November 24, 1905. Gilpin, as administrator of Lewis Gibson, brought an equitable petition against Frank S. Jones and others, alleging, that all of the defendants, with the exception of Jones, were the children of Lewis Gibson by a first marriage, and were his heirs at law, the oldest being forty years of age and the youngest twenty-two.

<p>'The petition set forth a cause of action as against the general demurrer, and was not subject to any of the objections set up in the special demurrer.</p>

Levy and claim. Before Judge Spence. Decatur superior court. November 24, 1905. The tax-collector of Decatur county issued a fi. fa. against J. W. Dukes for State and county taxes. It was levied by a constable on certain personal property, and G. W. Winn interposed a claim thereto. The papers were returned to the superior court for trial.

<p>Petition for injunction. Before Judge Spence. Turner superior court. April 10, 1906.</p>

<p>Action for damages. Before Judge Mitchell. Thomas superior court. September 5, 1905.</p>

<p>^ county court has jurisdiction to hear and determine an issue formed by a counter-affidavit to a warrant issued against one as a tenant holding over.</p>

Action for damages. Before Judge Mitchell. Tift superior ■court. November 17, 1905. Emma Johnson brought an action for damages against the Atlantic & Birmingham Bailway Company, alleging as follows: On May 20, 1903, she became a passenger on the train of the Tifton, Thomasville & Gulf Bailway Company at Tifton, Georgia, to be transported to Moultrie, and paid her fare. The company did not transport her safely, as it undertook to do, and by law was bound to do.

<p>Certiorari. Before Judge Lewis. Greene superior court. November IS, 1906.</p> <p>An indictment was returned by tbe grand jury of Greene county, in which George Eawlin was charged with the offense of carrying about his person a concealed pistol. . It was transferred to the county court of that county for trial. In the county court the defendant, before pleading to the merits, filed a plea of misnomer, wherein he alleged that he was indicted under the name of George Eawlin; that he had never been known by that name; that his true name was George Eoland, and he had never been known by any other name, and had never been known or called by the name George Eawlin, under which he was indicted. The county judge heard the evidence submitted upon the issue thus raised, and overruled the plea. Upon the trial of the main issue the jury found the defendant guilty. He carried the case, by certiorari, to the superior court, where the certiorari was overruled, and he excepted. In his petition for certiorari he alleged that the judge of the county court erred in overruling his plea of misnomer, and that the verdict was contrary to the evidence.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. November If, 1905.</p>

<p>Processioning. Before Judge Parker. Washington superior court. November 18, 1905.</p>

<p>Complaint. Before Judge Reagan. Butts superior court. September 16, 1905.</p>

<p>Certiorari. Before Judge Wriglit. Floyd superior court. October 3, 1905.</p>

<p>Action for damages. Before Judge Lewis. Greene superior court. August 30, 1905.</p> <p>Adams brought suit against the railroad company to recover damages for the loss of an arm, resulting from the alleged negligent running and operating of the defendant’s locomotive and train. It appears, from the record, that the plaintiff was a passenger en route from Athens to Sparta, both stations being on the defendant’s road; that a change of cars was necessary at Union Point, and that while waiting at the latter place for the arrival of his train, he was struck by an engine and ears on said road and injured as aforesaid. The plaintiff alleged, that at the time of his injury he was walking •along the edge of a platform constructed and maintained by the ■defendant for the use and 'occupancy of its passengers and patrons; ■that the engine and train which caused the injury approached him from behind, and that the engine was then being operated at a •dangerous rate of speed, and failed to ring the bell, blow the whistle, or give any other signal of its approach; that he had no knowledge of the approach of the train, and did not know that the engine would extend over the platform and strike a person standing on the edge thereof. The plaintiff introduced testimony to sustain the material allegations of the petition, but much of the evidence for the defendant was in sharp conflict with that introduced by the plaintiff. The jury having returned a verdict in favor of the plaintiff, the defendant made a motion for a new trial, in which it alleged, in addition to the general grounds, (1) that the court erred in charging the jury as set out in the fourth division of the following opinion; (2) that the court erred “in that it failed, by its •charge, to eliminate from the consideration of the jury certain allegations of negligence charged in the petition and the amendment thereto, there being no evidence to sustain such allegations, viz. in mot eliminating the following:” (specifying the allegations referred to); and (3) néwly discovered evidence. The court overruled the motion for a new trial, and the defendant excepted.</p>

Action for damages. Before Judge Spence. Terrell superior court. August 21, 1905. Melton brought suit against Chambless and Bolton to recover damages for an alleged violation of the provisions of the act approved December 17, 1901 (Acts 1901, p. 63).

Petition for certiorari. Before Judge Mitchell. Tift superior court. December 20, 1905.

<p>1. When the defendant appears and files an answer to the merits, and in such answer does not call attention to any motion previously filed raising objection to the service made upon him, or does not reserve the right to object to the service as made, a waiver of any defect in the service, or the entire absence of service, results.</p> <p>2. On the hearing of an application for temporary alimony the judge has the discretion to hear the testimony either by affidavits or orally.</p> <p>3. The evidence authorized the judgment.</p>

<p>Petition for injunction. Before Judge Eoan. Newton superior court. May 28, 1906.</p>

Action for damages. Before Judge Hodges. City court of Macon. September 9, 1905. Bass sued tbe telegraph company, alleging that it was engaged in business as a public telegraph company in transmitting messages. On July 6, 1904, the plaintiff delivered 'to the defendant a telegram in the following words: “J. L. Cleveland, Cleburne, Texas. Season Macon Grocery Company affording seed oats sacked cohesion blooming competitors making this price they give me preference sighing.

Petition for injunction. Before Judge Little. Talbot superior court. May 10, 1906. Held: as-matter of law, that no prescription could run against the town, the title being vested in it for public purposes by a grant of the land for public use as a street.- Exception is taken by the plaintiffs to the order denying an injunction, and they further complain that the court erred in admitting, over their objection, certain…

<p>Complaint. Before Judge Littlejohn. Sumter superior court. October 27, 1905.</p>

<p>Complaint. Before Judge Crisp. City court of Americus.</p> <p>Perry & Brown brought suit against Mose Walters, Ed. Walters, and Mrs. Lula H. Burkhalter, alleging that the defendants were indebted to plaintiff in the sum of $182.97 as principal, besides interest and attorney’s fees, on a certain promissory note, dated May 3, 19.02, and due September 1 after date, for $225, signed by Mose and Ed Walters and D. C. N. Burkhalter, agent, a copy of which is as follows:</p> <p>“225.00</p> <p>Americus, G-a., May 3rd, 1902.</p> <p>On or before the first day of September next, we promise to pay Perry & Brown, or bearer, two hundred and twenty-five dollars, with interest at 8 per cent, per annum from date of maturity, and ten per cent, on the amount for attys.’ fees in ease of suit; and we hereby severally waive and renounce for ourselves and families any and all homestead and exemption rights we may have under and by virtue of the constitution or laws of the State of Georgia, or the United States, in said property as against this contract. For value received. The consideration of this note is money, supplies, stock and other articles whatever of necessity to aid me in making and gathering my crops for the year 1902.</p> <p>[Signed] Mose Walters (L. S.),</p> <p>O. D. Oliver, N. P. S: C. Ga. . Ed Walters (L. S.),</p> <p>D. C. N. Burkhalter, Agent (L. S.).”</p> <p>It was further alleged, “that the said D. C. N. Burkhalter, agent, whose signature is attached to said note hereby sued upon, was the agent of Mrs. Lula H. Burkhalter, and has authority to bifid her by such agency in the signing of said note; that the consideration of said note sued on was obtained in the prosecution and management” of her business “and within the scope of said agent to make and bind her by.”. By an amendment offered to meet a demurrer of the defendant Mrs. Burkhalter, it was averred that the nóte was given “on the date aforesaid and signed by the said parties aforesaid to cover a running account with plaintiffs, which account was to enable the tenants of Mrs. Lula H. Burkhalter-to make a crop on her farm in Sumter county for the year 1902, and that said goods were sold solely on the strength of the credit of said Mrs. Lula H. Burkhalter, and credit was extended only to her; that D. C. N. Burkhalter was her agent, and had authority in writing to bind her for said purpose, and had had since the year 1889, . . . and bought said goods for said purpose in said manner, and at the time and prior thereto he had full authority and power from his wife to purchase supplies for her estate, to manage the same, to borrow money on her account, and -execute notes for the same,” and that he, “as agent for his said wife, ■ was in the habit of expressing his agency for his said wife, as was done in signing the note sued on, by simply adding 'agent’ after his name, and in this way universally expressed his representative character; and the petitioner in this way always acknowledged him in said representative character, and did so in this instance.” It is also set out that credit was extended to Mrs. Burk-halter ''by and through her agent, D. C. N. Burkhalter, and that he ha,d been running his wife’s said farm for a number of years past in this manner, and petitioners furnished-said hands as aforesaid, solely on the faith and credit of Mrs. Lula H. Burkhalter, knowing and realizing that the said D. C. N. Burkhalter had authority to bind her for such matters, and that he was her agent with this special authority to bind her, both on open account and by note.” An itemized statement of the account was set out, headed “Mose & Ed. Walters & D. C. N. Burkhalter, agt. for his wife, Mrs. L. II. Burkhalter, bought of Perry & Brown.” Certain other items of indebtedness for the year 1902 were also set out, which had been paid, and the prayer was “for judgment for the balance in the sum shown to be due and . . . for judgment on said note sued on.” This amendment was allowed, over the objection of the defendant Mrs. Burkhalter, that it set up a new cause of action; and she renewed her demurrer to the petition as amended, on the grounds that the note sued on was not her obligation, hut the individual undertaking of D. C. N. Burkhalter, and that the terms of the note could not be varied by parol, evidence, to establish her liability. To the allowance of the amendment and the overruling of the demurrers, she filed exceptions pendente lite. Mrs. Burkhalter filed .a plea of non est factum, and also denied the indebtedness and her husband’s agency, and by amendment set up that she was a married woman when the paper was executed and could not become a .■surety. The plaintiffs introduced evidence to sustain the allegations in the petition. At the conclusion of the plaintiffs’ evidence, Mrs. Burkhalter moved for a nonsuit, which motion was overruled; and no evidence being offered by the defendants, the judge ■directed a verdict for the plaintiffs. Mrs. Burkhalter filed her motion for a new trial, complaining of the refusal to nonsuit the plaintiffs, and of the direction of a verdict against the defendants. The bill of exceptions assigns error upon the overruling of thej motion for a new trial, and also upon the pendente lite exceptions! "to the allowance of the amendment and the overruling of her ■demurrers.</p>

Money rule. Before Judge Crisp. City court of Americus.. November 9, 1905. Bluthenthal & Bickart foreclosed a mortgage against Melton,, and caused the fi. fa. to be levied on a stock of whiskies} wines,, etc., belonging to the defendant, and under the foreclosure proceedings the property was sold.

<p>Certiorari. Before Judge Spence. Worth superior court. November 1, 1905.</p>

<p>Complaint. Before Judge Crosland. City court of Albany. November term, 1905.</p> <p>Lamar, Taylor & Riley Drug Company filed its petition against the First National Bank of Albany, alleging that the bank had issued the following certificate of deposit: “Received of Morris Weslosky and T. D. Sale thirty-three hundred and forty-three and twenty-eight one-hundredths dollars ($3,343.28) on' deposit to the credit of Lamar, Taylor & Riley Drug Company, subject to their cheek on the completion of the inventory of the Sale Davis branch of the C. M. Shivers Drug Company. Notice of the completion and acceptance of the inventory to be given the First National Bank by Morris Weslosky and T. D. Sale. [Signed] First National Bank of Albany, Georgia, by P. W. Jones, A. Cashier;” that petitioner is the owner and holder of this certificate; that the conditions of this certificate have been fully complied with; that the inventory specified has been completed; that one of the duplicate copies of this inventory has been given to the bank. It is further alleged, that upon the completion of the specified inventory, Weslosky and Sale at once took possession of the Sale Davis branch store, stock, fixtures, furniture, etc., therein contained; that before taking possession of said store petitioner notified Weslosky and Sale in writing “that the taking possession of said property would be considered and treated as the full, final, and complete acceptance on their part of the inventory, and as authorizing petitioner to demand and the First National Bank of Albany to pay the amount deposited with said bank by the said Morris Weslosky and. T. D. Sale to the credit of petitioner, over to petitioner without further notice on the part of the said Morris Weslosky and T. D. Sale to said bank;” that they, by taking possession of the stock, fixtures, etc., after such notice, waived the giving of any other notice to the bank of the completion and acceptance of the inventory, and authorized said bank to pay the amount shown by said certificate of deposit, without further notice upon their part; that Weslosky and Sale are still in possession of the btisiness; that the, money represented by the certificate of deposit was a part of the purchase-price of this business; that the taking possession of the business was an acceptance of the inventory by Weslosky and Sale; that on August 3, 1905, petitioner drew its draft on defendant for the amount represented by the certificate of deposit, attaching the certificate to the draft, and the bank failed and refused to pay the draft or honor the certificate of deposit; that before filing this petition plaintiff made formal demand on defendant for the amount represented by the certificate, accompanying the demand by a draft for that amount; and offering to surrender the certificate of deposit, and that the bank, in response to this demand, refused “to honor said draft or to cash said certificate of deposit.”</p> <p>The defendant filed a general demurrer to the petition, and also a special demurrer to certain joaragraphs as failing to allege.that the conditions of the certificate of deposit had been complied with, “in this, to wit, that Morris Weslosky and T. D. Sale had given notice to this defendant of the completion and acceptance of the 'inventory of the Sale Davis branch of the C. M. Shivers Drug Company.” On the call of the case at the appearance term, after argument of counsel for the defendant, and in the absence of the plaintiff’s counsel, the presiding judge sustained .both the general and the special demurrers. The plaintiff excepted.</p>

<p>Under the facts stated in the record, there was no such abuse of discretion by the trial court in dismissing the motion for a new trial as will require a reversal of the judgment.</p>

<p>Claim. Before Judge Mitchell. Thomas superior court. November 18, 1905.</p>

<p>Where there are several persons residing in different counties, claiming a fund in the hands of a person who has no interest therein, and who is so situated that he may apply to a. court of equity for an order of inter-pleader, the petition may he filed against all of them in the county of the residence of any one of them.</p>

<p>Assumpsit. Before Judge Humphreys. City court of Moultrie. January 24, 1906.</p>

<p>Complaint. Before Judge Mitchell. Berrien superior court. January 18, 1906.</p>

<p>Petition for discharge. Before Judge Smith. City court of Valdosta. January 29, 1906.</p>

Action for breach of warranty. Before Judge Parker. Coffee ■superior court. October 13, 1905. Dickey, as trustee in bankruptcy for Allison, brought suit against-the Gray Lumber Company, alleging that on April 23, 1901, the ■defendant conveyed to Allison all of the pine trees growing upon ■certain lots of land.

<p>1. An application for temporary alimony must be based on a pending suit for divorce or for permanent alimony.</p> <p>2. Where in an action to obtain the granting of a total divorce, the awarding of temporary and permanent alimony, and the subjection of property to the payment thereof, it was alleged, that the parties had established a family home in a certain county of this State, and that the legal residence and family domicile of both had since been there maintained,’service of the suit should lia.ve been perfected on the defendant personally,, or by leaving a copy at his most notorious place of abode.</p> <p>S. Although the defendant may have had business interests outside of the-State, which required much of his time; and although, when the suit was brought, he may have been absent from the State for an indefinite length- of time, this did not authorize service of the original petition and process upon him as a non-resident, if he had a legal residence in Georgia at which service could have been perfected on him.</p> <p>4. Service of process in commencing a suit (not to enjoin a pending action) can not be perfected by service by the sheriff on one described as the attorney of the defendant, in lieu of serving the defendant himself, it appearing that he has a legal residence in this State where service can be-perfected on him; nor in such a case can the presiding judge, by order,, authorize service to be made by serving such attorney and by sending a. copy by registered mail to the defendant, although he may be absent from the State on business for an indefinite time.</p> <p>5. The question in which one of two counties the defendant had his legal domicile being in controversy, this was a mixed question of law and fact to be determined under the evidence.</p> <p>6. The rule that appearance and pleading waives irregularities in the process or its absence, and the service thereof, and the other rule which declares that if a defendant appear and plead to the merits, without pleading to the jurisdiction and without excepting thereto, he admits the jurisdiction of the court, have no application so as to effect a waiver where the defendant excepted to the service, moved to dismiss the case for want of service, and pleaded to the jurisdiction at the time of filing his defense.</p> <p>7. It appearing, from the pleadings and evidence, that service of the petition and process was not lawfully perfected on the defendant, it was error, over his objection duly made, to proceed to hear an application for temporary alimony and the appointment of a. receiver for his property, and to make the appointment and direct that a certain amount be paid by the receiver to the plaintiff monthly, and a specified amount to her attorneys for filing the application for temporary alimony and prosecuting it, and to authorize the receivership to be dissolved on the giving of bond by the defendant for the payment of the temporary alimony and fees.</p> <p>8. Service of an application for temporary alimony pending a suit for divorce and permanent alimony must be personal. '</p> <p>9. If it is impossible to serve the defendant personally because of his indefinite absence from the State, and there is property of his in the State which is in imminent danger of being lost, destroyed, depreciated by waste, or removed, so as to defeat the right to alimony, it would seem that the presiding judge may, on a proper showing and under proper pleadings, appoint a receiver to preserve the property, but can not fix temporary alimony and order it paid by the receiver.</p>

Action for damages. Before Judge Harwell. City court of LaGrange. November 29, 1905. The suit was on account of personal injuries sustained by being ■struck by an engine drawing a train of cars in the city of LaGrange, ■alleged to have been running down grade and on a curved track, ■at an unlawful speed of twenty-five or thirty'miles an.hour, as it ■approached a street crossing, without giving any signal by bell, whistle, or otherwise.

Complaint for land. Before Judge Mitchell. Berrien superior court. September 11, 1905. Smith, as administrator of Mary A. S. Ball, brought an action against Stone, to recover a described parcel of land and mesne profits. The defendant filed an answer denying title in the intestate of the plaintiff. The ease came on for trial, and the' defendant offered in evidence a registered deed from Mrs. M. A. S. BalL to the premises in dispute.

Trover. Before Judge Gober. Cobb superior 'court. January 11, 1906. Mrs. Carrie Malcolm brought an action of trover against H. C. Dobbs, for the recovery of a described mahogany sideboard. The suit was brought to the November term, 1904, of the superior court of Cobb county, and was tried at the November term, 1905. At the ajipearance term the defendant filed a demurrer to the petition.

<p>Action on insurance policy. Before Judge Mitchell. Colquitt superior court. January 6, 1906.</p>

Petition for mandamus. Before Judge Spence. Baker superior •court. April 17, 1906. Brunson brought suit 'against Baker county for damages alleged to have been sustained because of a defective condition of a public road.

Petition for injunction. Before Judge Lewis. Morgan superior court. March 8, 1906. The High Shoals Manufacturing Company is a corporation owning and operating a manufacturing plant for the manufacture of raw cotton into cotton goods.

<p>1. Under the issues made by the pleadings, the evidence introduced, and the agreements of parties, stated in the bill of exceptions in this case, it was error to hold that, “in a proceeding of this sort, the plaintiff could not rely on any title or rights which she might have to the land in dispute, derived from the sale made by the United States marshal, and the deed of said marshal thereunder, to J. W. Lathrop & Co., but the only questions which could properly be considered were, whether the deed made by W. D.-Allen in 1871, conveying the land in dispute to his wife for life, with remainder to the children therein named, conveyed the remainder interests in said land to the defendants, and whether the deed made by Mrs. Susan W. Allen, under the decree of Judge Hill, rendered December 13th, 1873, conveyed such remainder interests to J. W. Lathrop & Co.”</p> <p>2. As a new trial is ordered, the entire decree is set aside. If it was intended to adjudicate that the order of the judge of the superior court, granted in 1873, was a decree in open court, this will be open for re-determination, in view of the fact that the heading of such order recites that it was granted “at chambers” (although during the continuance of a term of court), and in view of the other evidence.</p> <p>3. It was held in Adams v. Vrariklin, 82 G-a. 168, that prior to the aot of 1876, “requiring minors to be personally served, service of their guardian ‘ad litem was in accordance with the practice of courts of equity at the time, and was sufficient.”</p> <p>4. There was no error in overruling the demurrer to the defendants’ answer, or in allowing the amendment.</p> <p>5. Where the plaintiff alleged, that certain proceedings to obtain an order for the sale of property which had been conveyed to a married woman for life, with remainder to her children, were filed by her on behalf of herself and children, to obtain an order to make a conveyance; that she had the advice and assistance of able counsel; and that he prepared the petition for her, the children could deny that the attorney had authority to file the petition, and that their mother authorized it, or knew anything of it until after the order was granted; and could set up that then she was induced to sign a deed purporting to convey both her interest and theirs, but that they were not bound thereby.</p> <p>6. Under the facts as they appear in the record in this case, there was no error in admitting the evidence of the life-tenant, who was not a party to the record or in interest in such sense as to render her incompetent, and who would not be bound, by the result, although the persons alleged to have dealt with her were dead.</p>

<p>Appeal. Before Judge Pendleton. Fulton superior court. October 31, 1905.</p> <p>Mrs. Davis, an heir at law of one Carrie May, deceased, filed her petition against Mrs. Albritton, to the May term, 1905, of-the court •of ordinary of Fulton county, in which she sought to have set aside a judgment, rendered by that court at the February term, 1905, ■establishing a copy of the will of the said Carrie May, and admitting the same to probate in solemn form. She sought to have the judgment set aside on the grounds, (1) that the court rendering it was without jurisdiction of the person or property of the deceased, and it was therefore void; (2) that plaintiff was not legally served, with, notice of the proceedings to probate said will; and .(3) fraud in the procurement of the judgment. The defendant was served with a ■copy of the petition and rule nisi, and filed her answer thereto. At the trial of the ease, on appeal to the superior court, it appeared, -from the evidence introduced by the plaintiff, that the testator, at the time of her death, was a resident of Pawtucket, Ehode Island, and that she left no property of any kind within the limits of Fulton county, Georgia. The court ruled that these questions were concluded by the judgment of the court of ordinary admitting the will to probate, and directed a verdict for the defendant. The plaintiff excepted.</p>

<p>1. That a commercial steam railroad for the common carriage of freight and passengers will he only about three miles in length, and will, for a considerable part of its course, lie within the corporate limits of a city, and that it will connect with other steam railways at the outer terminus, does not prevent it from falling within the purview of the general laws for incorporating railroad companies.</p> <p>2. If it were a question of doubt as to what was the real character of a corporation, its name might be considered to throw light on that subject. But that a company is called a terminal company will not change its character, if it is a railroad company within the meaning of the law.</p> <p>3. The road now proposed to be built, being only about three miles in length, does not fall within the restriction contained in section 2176 of the Civil Code.</p> <p>4. A charter obtained, from the State for the purpose of constructing and operating a commercial railway as a common carrier is granted for a public purpose. It can not be used for a purely private purpose. Nor can the company so chartered exercise the right of eminent domain for a mere private purpose.</p> <p>5. Where a railroad company was incorporated under the general law, with power expressed in the charter to construct a railroad, from a point some distance outside of a populous city easterly to a point at or near the center of the city, if the power to locate the terminus and line and •exercise the right of eminent domain could be conferred by the directors •on the president, yet under a general authority to manage the business of the company subject to the approval and direction of the board of directors, or its chairman or committee, conferred by the by-laws on the president,' he could not lawfully fix such route and terminus and proceed with condemnation proceedings, before such approval.</p> <p>16. Where a notice, as the commencement of condemnation proceedings, was given by the president’s direction, without lawful authority, and the time had expired, under its terms, for the appointment of an assessor by the landowner, the directors could not, by ratifying the act of the president, cause such ratification to relate back and give such notice the same effect which it would have had if it had been legal when given.</p> <p>'.7. Where the charter of. a railroad company fixed one of its termini at a station some distance outside of the corporate limits of a city, and described the road to be located as running easterly to a point at or .near the center of the city, but in fact a line run'due east would not •enter the city at all, the corporation had a discretion to locate the •other terminus at a point within the city, at or near its center; and where a line was located from the initial point to the terminus so fixed, running in a general southeasterly direction, this was not a. violation of the charter; and condemnation proceedings instituted on the line so located were not void for that reason.</p> <p>¡8. If a real-estate agent representing a railroad company informed a lot owner that the company desired her lot for the purpose of the right of way and freight yard, and made her an offer which he testified was a fair price for the property desired, and which she refused to accept, this would be a sufficient negotiation, within the meaning of the statute, before the commencement by the company of condemnation proceedings.</p> <p>'9. If the plaintiff be the owner of a lot abutting on a public street, it will not require the proceedings to condemn her lot for railroad purposes to be enjoined on the ground that the company has not condemned such interest as she may have in the street, or acquired the right to cross it.</p> <p>10. The issues of fact were passed on by the presiding judge so far as they affected the application for an injunction; and there was sufficient evidence to authorize his finding in respect to them. The judgment refusing the injunction is reversed solely on the ground that the plaintiff is entitled to be served with a notice of the intention to condemn her prop- • erty, lawful when given, and thereafter to have the time provided by the statute for appointing an assessor.</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton su■perior court. November 26, 1906.</p>

<p>.1. A ward who had arrived at age employed attorneys to bring suit against her guardian and the sureties on his bond. After the attorneys were employed, and both before and after the suit was filed, the ward stated to one of the sureties that no claim would be made against him, and that if any judgment was obtained it would not be enforced against him, and that he need not feel any uneasiness on account of the suit. The surety -filed a plea in the suit, and the assurances above referred to were again made after the plea was filed. Relying upon these assurances, he did not press his defense. A judgment was taken against the guardian and all of the sureties, and, while the surety above referred to was in the court-room when this judgment was taken, he did not .know that the judgment was in fact rendered against him as well as ■the other defendants. The surety filed an equitable proceeding to set aside the judgment. The ward did not resist this proceeding. The attorneys employed by her filed an intervention, in the nature of both a demurrer and an answer, in resistance to the petition to set aside the judgment, alleging that they had a lien upon the suit and the judgment, which could not be defeated by any act of their client after the suit was filed. Upon a trial the jury found a verdict to set aside the judgment. The attorneys moved for a new trial, which, being refused, they excepted. Held: (a) The petition set forth a cause-of action; and as there was evidence to sustain the contentions of the surety in reference to the assurances given him by the ward, there was no error in overruling the motion for new trial. (6) While the attorneys had a lien upon the suit, the existence of this lien would be no reason for allowing them to enforce a judgment against the surety which was rendered as a result of his being lulled into security by assurances by their client that no claim would be made against him. (c) Attorneys have a lien upon all suits brought by them and all judgments obtained upon a. real cause of action in behalf of their client, but they have no right to enforce a judgment obtained by surprise when the defendant has been, by the act of their client, deprived of the right to be heard on the existence of a cause of action at the time of their employment and at the time of the beginning of the suit.</p> <p>2. The charges excepted to were not erroneous- for any reason assigned. The-requests to, charge, even if they contained correct propositions of law, were inapplicable to the facts of the case. There was no error in any of the rulings on evidence, and no sufficient reason has been shown for reversing the judgment.</p>

<p>Action on contract. Before Judge Mitchell. Berrien superior court. January 9, 1906.</p>

Complaint. Before Judge Mitchell. Berrien superior court. January 18, 1906.

<p>Complaint. Before Judge Mitchell. Berrien superior eourt. January 18, 1906.</p>

<p>Illegality. Before Judge Smith. City court of Yaldosta. Janu•■ary 17, 1906.</p>

<p>1. In an action to recover damages on account of a fire starting on tlie der fendant’s premises, as a general rule it is necessary for the plaintiff to show that the fire was unlawfully kindled or negligently started or guarded.</p> <p>2. Although a railroad company may be negligent in storing oil and waste in a wooden building in close proximity to the plaintiff’s house, and in suffering tramps and others to occupy the building containing the inflammable substances and to keep lights burning therein, it is not liable for the loss of an adjacent building by fire caused by the careless - or accidental act of a person not in its employ, but in its building by permission. The proximate cause of the injury is not the alleged, negligence of the defendant, but the intervening act of a responsible agency.</p> <p>3. If the owner of a building in flames not caused by his negligence or positive act owes any duty to adjacent proprietors to prevent- the spread of flames to adjacent buildings, it is only such duty as the exigencies of the particular case may require.</p>

<p>Action for damages. Before Judge Martin. Wilcox superior •court. September 25, 1905'. '</p>

Equitable petition. Before Judge Felton. Pulaski superior court. January 2, 1906. • This ease was previously before this court, and a statement of the material allegations in the pleadings is in 112 Ga. 487. A subsequent trial resulted in a verdict against the defendant. He assigns as error the overruling of his motion for a new trial.

Complaint for land. Before Judge Parker. Ware superior court. August 19, 1905. Held: and that he also knew that the Gortatowskys had had a lease on the theatre before he bought it.

<p>Action for damages. Before Judge O’Steen. City court of Douglas. September 1, 1905.</p> <p>Mollie Riley brought suit against the railroad company to recover damages for the alleged negligent homicide of her husband. The petition alleges, that “on the night of April 15, 1905, about ten thirty o’clock the husband of petitioner entered upon the railroad of the defendant at a point in the town of Kirkland . . . about three hundred yards east of the 93 mile post, and began walking along said track in a westerly direction en route to his home, and when he had reached a point along the way he was traveling, 391 yards west of said mile post, and 187 yards west of the blow-post, and 193 yards east of Willacooehee and Pearson public-road crossing, was run upon and over by an engine of the defendant company, pulling an extra^ train of freight, running in a westerly direction, . . producing injuries upon said husband of petitioner of which he died on the following day.” It was also alleged that at the time the deceased entered upon the track of the defendant, “no regular trains of defendant were scheduled to pass along said track,” and that “said freight-train was funning along said points aforesaid without ringing any bell, blowing a whistle and having no headlight, so as to warn said deceased of the fact that such-extra train was approaching his rear; the noise of said train, occasioned by its movement over the' rails of such track, not being heard by said deceased, by reason of the fact that at the time a strong wind was blowing from the west;” and that “the deceased could not, by using ordinary care, have avoided the collision by which he was killed.” By amendment the plaintiff amplified the allegation as to the deceased’s freedom from fault. The defendant filed a general and special demurrer to the petition, which the court overruled; and it excepted.</p>

<p>1. In a suit against a railroad company for damages for the killing of stock, a declaration which alleges the number of animals killed, the sexes, the time and place of the injury, and alleges them to be of an average value of $15, is not open to demurrer upon the ground that “the separate items of damage were not sufficiently set forth.”</p> <p>2. The assignments of error upon the overruling of other grounds of demurrer, not being referred to in the brief of counsel for plaintiff in error, will be treated as abandoned.</p> <p>'3. The excerpts from the charge of the court, to which exception is taken, arp practically a statement of the general rule expressed in the Civil Code, § 2321. They are applicable to the facts of the case, and are not erroneous for,any reason assigned.</p> <p>4. The request to charge contains a statement that certain acts would not constitute negligence. In order to avoid an invasion of the province of the jury, the court properly refused the request.</p> <p>5. The evidence was conflicting, but sufficient to support the verdict for the plaintiff.</p>

<p>Complaint. Before Judge O’Steen. Douglas superior court. November 23, 1905.</p>

<p>Action on contract. Before Judge O’Steen. City court of Douglas. November 23, 1905.</p> <p>Mobley brought an action against Lott for a breach of contract. The petition alleges, in substance, that about November 1, 1904, petitioner and defendant entered into a contract for the sale of a certain tract of land by petitioner to defendant, for $900, of which $300 was to be paid in cash, and that upon receipt of- said $300 the defendant would execute to petitioner a bond for titles, binding defendant to make deeds to him on payment of the balance of the purchase-price; that about the 9th day of the same month, petitioner paid to defendant the said $300, which was accepted by the latter as the cash pajrment upon said land; that upon the receipt of said money the defendant agreed to meet petitioner on a certain day and execute the bond for titles as previously agreed, but that the defendant failed and refused to execute and deliver said bond for titles, and thereafter, without the consent of petitioner, sold said land to another person, for $2,000, which was its actual value; wherefore petitioner was injured and damaged by defendant in the sum of $1,100. The petition alleged several additional items of damages, which it is unnecessary to set out. The defendant demurred generally to the petition, the demurrer was sustained, and the plaintiff excepted.</p>

<p>Complaint. Before Judge O’Steen. City court of Douglas. December 7, 1905.</p> <p>The suit was upon an open account for the price of certain jewelry, amounting to $180, furnished in pursuance of a written order, signed by the defendant, and addressed to the plaintiffs at Iowa City, Iowa, containing, among other stipulations, the following:. '"‘This order is subject to approval at Iowa City, Iowa.” At the appearance term the defendant filed an answer denying the allegations of the petition, but set up that the defendant had given an order for a less quantity of goods, and that instead of filling that order, a larger order of goods was shipped, and, upon its arrival at the place of destination, the defendant refused to receive them from the common carrier, on account of the variance above stated. At the next term of the court, the defendant offered to amend his plea as follows: "1. That at the time A. T. Howell, agent, signed the said order and contract of the plaintiffs, L. Brown, Jr., salesman of the plaintiffs, who solicited the order from these defendants, as well as said A. T. Howell, agent, were each in a very great hurry, and said Howell only agreed and consented to sign said order upon. the representations on the part of the said agent and salesman that he would mark out $100 worth of the most costly jewelry, and that he would only report to the W. F. Maine & Co. an $80 order. 2. That the said salesman and’ said Howell went over the list rapidly, and Howell told the said salesman to leave out specified articles, and the salesman then and there, before the order was signed, agreed and promised to leave out enough of .the class of articles agreed upon to amount to $100, and to only report an order for $80. 3. That said salesman reported to the plaintiffs, W. F. Maine & Co., that although A. T. Howell, agent, had signed a $180 order, he had agreed to ship to him only an $80 assortment; and that under the contract made by him, L. Brown, Jr., with this defendant, only an order for an $80 assortment was reported for approval. 4. That the order signed by said Howell specified that it was not binding upon the plaintiffs in this case until approved by them at Iowa City, Iowa. 5. That the said W. F. Maine & Co. approved said order, not for the $180 assortment, but only for the $80, and notified these defendants that they had approved the order for $80, and that they would ship the $80 assortment. 6. That although the order signed by said Howell was in writing, and even if the said salesman had no right to agree to reduce said order h> an $80 order, and if the said W. F. Maine & Go. were not bound by this agreement made by their salesman, after their salesman reported his promise and agreement to reduce said order to an application for an $80 assortment to Maine & Go. and after they accepted the order for an $80 assortment, and approved and ratified the promise and agreement made by their said salesman, then that they became bound to only ship to these defendants an $80 assortment. 7. That the said paper signed by said Iiowell was only an application for jewelry, and was not binding upon W. F. Maine & Go. until approved by them, and for this reason it was not binding upon these defendants until approved by the plaintiffs. 8. That W. F. Maine & Co. did not approve said application for $180 assortment, but only approved it for an $80, and for this reason a valid, binding contract and agreement was onty made by and between these plaintiffs and defendants for the sale and purchase of an $80 assortment. 9. That even though the said salesman had not agreed to reduce the order signed to an $80 order, and even if the said W. F. Maine & Go. had never consented to such promise and agreement made by their said salesman and agent, then and in that event these plaintiffs would not have become bound for the purchase of any larger order than was approved by the said defendants, and for this reason they would not be bound for more than an $80 assortment. 10. That for these reasons, after the defendants became bound for not more than an $80 order, and after the plaintiffs became bound to sell not more than an $80 assortment, then that these defendants had a right to refuse to receive and pay for more than an $80 assortment, and after a different assortment was shipped they had a right to refuse to accept ii 11. That even if the said defendants were bound to accept the $180 assortment, provided it was approved by the plaintiffs, in spite of the promise on the part of the said salesman to reduce it to an $80 assortment, and even though the said application, by ratification or otherwise, was never reduced to an $80 application, then and in that event these defendants had a right to refuse to accept an $80 assortment after the plaintiffs failed and did not approve said order for $180 assortment. That because of said above detailed facts, these defendants in no way ever became bound and liable to the said plaintiffs, W. F. Maine & Co., for any amount whatever.” The court refused to allow the amendments; and to this the defendant excepted. A verdict in favor of the plaintiffs for $180 was directed by the court; and this and other rulings are complained of in the defendant’s motion for a new trial, to the refusal of which he excepted.</p> <p>In the 4th ground of the amended motion' for new -trial it is complained that the court excluded from evidence a letter from the plaintiff to the defendant, which the defendant sought to introduce, as follows: “We have filled your -order for one of our .$80 assortments, show-case and table goes forward by freight, and jewelry follows by express. Upon receipt of the consignment wo would be pleased to have you. write us as to whether the goods have been received safely, how you like the appearance of the goods, etc. Wishing you success and awaiting your further pleasure, we remain,” etc. In the 5th ground it is complained that the court refused to allow A. T. Howell, a witness for the defendant, to testify as follows: "At the time I signed the said order, and before I signed it, I told the agent and salesman of Maine & Co. that I would not sign the said order unless he would mark and change the order from a $180 order to an $80 order, and he agreed to do this. I went over the list hurriedly with him, and he promised to leave off and mark from the order enough.of the most costly articles to amount to $100, and leave the order for only $80. We agreed upon the jewelry to be left off, and he was to make the calculation and leave off enough to make the reduction to an $80 order. We were both in a great hurry, and I only signed the order upon the said representations made by the said salesman.” In the 6th ground it is complained that the court refused to allow the same witness to testify as follows: "Before this claim now sued upon was ever presented to me by the present attorneys for W. F. Maine & Co., one Mr. Walker, an attorney at law, presented the claim to me and asked me to pay it, and I refused, and he then told me that he would take charge of the jewelry and realize all that he could out of the jewelry for the said W. F. Maine & Co.; and I told him that he could get the- jewelry from the transportation company if they had not shipped it back, and that I did not want it at all, and for him to sell it and get all he could possibly realize out of it for the company.”</p>

Trover. Before Judge O’Steen. City court of Douglas. December 14, 1905. McLean brought an action of trover against H. T. Hattan and Charlie Brewer, to recover certain mules; the defendants denied the title of plaintiff, and set up title in themselves. The jury returned a verdict in favor of the defendants, and the plaintiff excepts to a judgment overruling his motion for a new trial.

<p>Action for damages. Before Judge Carter. City court of Baxley. December 19, 1905.</p>

<p>1. With the exception of the assignment of error dealt with in the second headnote, the rulings complained of in the assignments of error were made more than six months before the filing of the bill of exceptions; and, no exceptions pendente lite to such rulings having been properly filed, those rulings will not be reviewed by this court.</p> <p>2. Where, in compliance with a petition for a receiver, the court ex parte appoints a receiver, authorizing him to take charge of certain bonds, and the defendant demurs and answers, and, among other things in his answer, prays that the receiver be restrained and enjoined from doing the things which, in the order of appointment, he was authorized to do, and the court thereupon temporarily restrains the receiver from acting until the further order of the court, and where upon the further hearing of the ease, with all parties present, the court passes an order refusing to restrain the receiver, and rescinding the previous restraining order .granted, without anything done towards the disposition of the main ease on its merits, Meld-, (a) The order last mentioned, though employing language usual in the disposition of injunction cases, was not in effect a matter of ■ injunction such as under the Civil Code, § 5540, would authorize the suing out of a fast writ of error, (b) The order was a mere direction to the court’s own officer, its receiver, and appropriate ■exceptions pendente lite were necessary for the purpose of reviewing the decision of the court, (c) As the ease, upon its merits, is still pending in the court below, the writ of error is prematurely sued out, and this court ils without jurisdiction.</p>

Injunction, etc. Before Judge Parker. Glynn superior court. June 14, 1906.

<p>1. The petition sufficiently set forth that the defendant is a benefit society. It is alleged that under the charter and bylaws the nearest relative of a member is the beneficiary of the fund payable upon the death of the member. It being alleged that the plaintiff’s ward was the nearest relative of the deceased member, the 'suit was properly instituted in the name of the plaintiff.</p> <p>2. A certificate of membership is not indispensable to the completion of a contract between a member of a benefit society and the society. In the absence of the certificate of membership, it is competent to look to the by-laws of the society in order to determine the obligations of the society, existing by reason of a good-standing membership therein; and unless there is an express provision in the by-laws that a certificate of membership is essential, the by-laws and the existence of the good-standing membership may alone be regarded as constituting a valid contract for the doing of anything for which the society is bound by its bylaws to the member.</p> <p>3. Where the provisions of the charter and the by-laws of a benefit society are relied upon in the plaintiff’s declaration as constituting the contract upon which the action is founded, and there is no allegation of the substance of the charter and by-laws, but only an averment which amounts to a conclusion as to their effect, the declaration is subject to special demurrer upon the ground that a copy of the provisions of the charter and by-laws relied upon'is not attached. The objection is not ovei'come by alleging that the plaintiff has not the charter and by-laws, but has served the defendant with notice to produce them.</p> <p>4. There béing sufficient allegations to state a. cause of action in favor of fixe benefieiax-y, who was a minor, it was competent for the suit to be instituted in her behalf by her guardian.</p> <p>5. While the law requires a contract of insurance to be in writing, it is not necessary to allege, in a suit on an insurance contx-aet, that it is in writing. In such a. case, as against a demurrer, the px-esunxption is that the contract is in writing, as the law requires it to be.</p> <p>6. The amendment offered in this case did not add a new cause of action. It was properly allowed; and the petition as amended was not open to the general demurrer, nor to any ground of the special demuxrer for any reason assigned, except as ruled in the 3rd headnote.</p>

<p>Action for damages. Before Judge Felton. Houston superior court. January 27, 1906.</p>

<p>1. When the agents and employees of a railway company negligently fail to bring the train to a stop at a station where a passenger is entitled to leave the train, and the passenger, perceiving that he is about to be carried beyond his destination, attempts to alight from the car at the usual place of doing so at said station, and, while so attempting to alight, is by a sudden jerk thrown from the steps of the car and injured, he is not precluded from the recovery of damages for such injury, unless he was guilty of negligence himself and his own negligence was the proximate cause of his injuries.</p> <p>2. To leave a moving train under the circumstances just set forth can not be held to be negligence as a matter of law, unless it appears further that the danger attending the attempt to alight was so great as to be obvious to a person of common prudence and ordinary intelligence. Ordinarily, in cases of this kind, the question of what is or is not negligence is one for the jury.</p> <p>3. A paragraph of the plaintiff’s petition alleging in general terms that “on account of said injuries, petitioner’s medical bill, loss of time, and nurse’s attention has caused, and is well worth, the sum of $150, and he will continue to have medical attention for a long time to come,” was subject to special demurrer upon- the ground that “there is no itemized bill or bill of particulars of the medical bill, loss of time, or nurse’s attention sued for.”</p>

<p>Attachment. Before Judge Eoute. City court of Cartersville. October 31, 1905.</p> <p>Culberson, a resident of the State of Alabama, brought a suit, based on an attachment, in Bartow county, Georgia, against the Alabama Construction Company, an Alabama corporation, doing business in that county, for the recovery of $450, alleged to be due him by the defendant for the services of his minor son. The petition based upon the attachment alleged, that the defendant on' July 1, 1903, employed Kirkland Culberson, the plaintiff’s son, then under the age of sixteen years, as a day laborer; that plaintiff protested against the employment of his minor son by defendant, and used repeated efforts to induce his child to return to his home, but that the officers and agents of the defendant company induced his child to remain in its employment and work for it, and that the boy did work for defendant from July 1, 1903, until March 1, 1905, for which the defendant was indebted to plaintiff $450, “the wages of his said minor child for said work, plaintiff alleging said services to be worth one dollar per day.” The defendant denied all the allegations of the petition, except the allegation as to the suing out of the attachment and the allegation that defendant had refused to pay plaintiff the sum sued for, or any other sum. Upon the trial of the case, it appeared, from the evidence, that the plaintiff lived in Anniston, Ala., and that the services of his son, for which he sued the defendant, had been performed, in connection with railroad construction work, at and near various other places in Alabama and Cartersville, Ga. It also appeared that this railroad work was first carried on, and the plaintiff’s son first employed thereon, by a partnership, consisting of D. B. Lacey and Mrs. Susan E. Jones, doing business under the firm name of the “Alabama Construction Company;” and that later this partnership was succeeded by a corporation, incorporated in the State of Alabama, under the same name, upon the application of -D. B. Lacey .and three other persons, not including Mrs. Jones, which corporation — the defendant in this case — continued the work of railroad construction and employed the plaintiff’s son thereon. The .jury found a general verdict in favor of the defendant; the plaintiff moved for a new trial, which was refused, and he excepted.</p>

Action for damages. Before Judge Burch. City, court of Dublin. January 10, 1906. ' • John Moore, a minor, brought suit by his next friend a'gainst the Dublin Cotton Mills. He amended his petition in stated particulars after it was filed. As amended, the petition contained the following allegations, in substance: The Dublin Cotton Mills is a corporation under the laws of this State. Plaintiff was employed by it and assigned to the duty of operating a carding machine-.

<p>Attachment. Before Judge Reid. City court of Atlanta. November 4, 1905.</p>

<p>1. The petition set forth a cause of action, and the demurrer which was interposed as cause for not granting the injunction set forth no reason why the injunction should not be granted.</p> <p>2. When a non-resident is proceeding to foreclose a mortgage under a power of sale, through the instrumentality of an agent resident in this State, an equitable petition filed to enjoin tlie- sale, upon the ground, among others, that the power is being improperly exercised, is properly filed in the county of the residence of the resident agent.</p> <p>3. A certificate to a transcript from the records of a court of ordinary, signed by a named person as ordinary of a given county, sufficiently authenticates the record when it appears affirmatively, in the certificate, that the ordinary had no clerk and was acting himself as the clerk of his own court. The law requires the fact that he is the clerk of his own court to appear in the certificate; but he may certify to this fact as ordinary. Civil Code, §4250 (11); Lay v. Sheppard, 112 Ga. jll.</p> <p>4. Marriage may be proved by any person who knows the fact. See, in ' this connection, Clark v. Cassidy, 62 Ga. 407; Jenkins v. Jenkins, 83 Ga. 283; Hocoie v. State, 114 Ga. 21; McSein v. State, 120 Ga. 175; Murphy v. State, 122 Ga. 149; Southern Ry. Co. v. Brown, 126 Ga. 1.</p> <p>5. When the record of a court in which a ease is being tried is material evidence in a ease, it may be proved by the production of the record itself, and a certified copy is not necessary. This is true whether the case is on interlocutory hearing before the judge or on final hearing.</p> <p>6. The suit being to enjoin the enforcement of a mortgage given to secure a certain note, which note was the result of a transaction in which another, note was involved, it was not erroneous to admit in evidence the latter note, over the objection that it was irrelevant. It was admissible simply as a part of the history of the transaction.</p> <p>7. This was an application for an interlocutory injunction; and the evidence being sufficient to authorize the grant of an injunction, the discretion of the court below in granting the injunction will not be interfered with.</p>

<p>1. In a suit upon a forthcoming bond given in a claim ease, the question-whether -the property levied upon and claimed is subject to the execution is not involved.</p> <p>2. In such an action the defendant can not question the legality of the levy.</p> <p>3. In a suit of this character, the claimant is estopped from questioning-the sufficiency of the description under which the property, after the-claim case was dismissed, was readvertised for sale under the levy, when the advertisement describes the -property exactly as it was described in the levy and in the forthcoming bond.</p> <p>4. Mere testimony of a constable that he does not know what has become-of one of the notices, which he had posted, of the sale of property levied upon, is not sufficient to authorize parol evidence of the contents of such, paper.</p> <p>5. Nor is the opinion of such witness, that the places where he posted the-notices of the sale of the property were all public places, admissible in evidence.</p> <p>6. The evidence was not such as to authorize the direction of a verdict in. favor of the plaintiff.</p>

Complaint. ' Before Judge Martin. Telfair superior court. April 18, 1905. . Alison brought suit against S. M. Smith and C. F. Smith on a promissory note for $900 principal, besides interest.

Petition for injunction. Before Judge Parker. Coffee superior court. September 26, 1906.

<p>1. A writ of mandamus will not issue against a public officer to compel the performance by him of acts which do not come within his official duty.</p> <p>2. The eounty authorities, — that is, the ordinary or the board of eounty commissioners, as the case may be, — are invested with full authority to lease and hire out misdemeanor convicts, and it is their duty to receive and disburse the funds arising as compensation for services of the convicts.</p> <p>S. In disbursing the funds arising from the hire of misdemeanor convicts the county authorities shall first apply the same to the payment of the fees of the officers of the court. This application is to be made by first taking from the hire the costs in the particular ease, including the fees - of the witnesses, then discharging the orders of the officers of court for insolvent costs in other cases, and paying into the county treasury only whatever balance may remain.</p> <p>4. The eounty treasurer has no authority to pay out any sum received from the county authorities, arising from the hire of convicts, to judgments in favor of officers of court for insolvent costs. This is no part .of his official duty.</p>

<p>Attachment. Before Judge Gale. City court of Brunswick. January 8, 1906.</p>

<p>A deed conveying "All of lot of land number 178, in the sixth district of said county of Coffee, containing 490 acres, more or less, save and except the timber on said lot of land suitable for turpentine purposes and the timber thereon suitable for sawmill purposes, except dead timber for plantation purposes, which is hereby reserved by said B. .Peterson unto himself, his heirs and assigns, with the privilege of utilizing the same for turpentine purposes, within and during a period of five yeai-s from the date of this instrument, and with the privilege to him, the said grantor, to cut and remove the timber on said lot of land suitable for sawmill purposes within and during the space and period of eight years from the date of this instrument; the said grantor to have the further privilege of such ingress and egress in, from, upon and over said lot of land as may be necessary for the removal of said timber and turpentine products therefrom,” reserves to the grantor, for sawmill use during the specified time, all the dead timber on the land suitable for sawmill purposes, with the right to the grantee to have and enjoy during this time so much thereof as may be necessary for plantation use.</p>

<p>Petition for injunction. Before Judge Parker. Coffee superior court. May 16, 1906.</p>

<p>Complaint. Before Judge Eeagan. Pike superior court. October 2, 1905.</p> <p>The Griffin Grocery Company alleged, in its petition, that BF. Eeeves was indebted to it in the sum of $218.32, besides interest, on three checks in its favor¿ drawn by him on the New South Savings Bank of Barnesville, which that bank had declined to honor on due presentation for payment. In his answer the defendant admitted the execution of the Checks, but averred that he gave them under the following circumstances: A. G. Janes, the traveling representative of the plaintiff company, came to' the defendant’s store on the dates the checks were executed, and requested him to accept cash to the amount represented by the checks,, as a matter of convenience to him (Janes), and to issue checks: therefor drawn on the New South Savings Bank. Janes represented that it was not safe for him to carry the money on his person, and requested that he be thus accommodated by the defendant, as had been frequently done in the past; and defendant complied with the request, without any benefit or consideration moving to him. It was understood between Janes and himself that he was to deposit, the money in the New South Savings Bank, in order to meet the checks on presentation there, and defendant took the money to that bank and deposited it with the assistant cashier, explaining to him that this fund was to be held by the bank solely for the purpose of paying the checks, payable to the Griffin Grocery Company, which defendant had given to its representative. The defendant owed that company nothing, and fully complied with the terms of the bailment; and if the money was lost to the company, he was in no way responsible for the loss. At the time the ■checks were given, he had on deposit in the bank sufficient sums with which to pay them, and the checks would have been paid had they been presented to the bank within a reasonable time. But subsequently the New South Savings Bank suspended active business, and within a few days thereafter was formally placed in the hands of a receiver. When defendant made the special deposit above referred to, he had no knowledge that the bank was in a bad financial condition, and he was in no wise responsible for its subsequent failure. Prior to the bringing of this action, the plaintiff repeatedly acknowledged that the defendant was not responsible for any loss, and the plaintiff brought suit against the Third National Bank of Atlanta and the receivers of the Peoples Bank of Barnesville, alleging that the failure to collect the cheeks was due to the negligence of the banks to which they had been turned over for collection. And the plaintiff, without consulting or procuring the consent of defendant, went into- court as a creditor of the New South Savings Bank, and was paid by the receiver $71.09 as its pro rata share of the fund distributed by the court to creditors of that bank, thus acknowledging the bank as its debtor on these checks. The New South Savings Bank was open and doing regular business for several days after the checks were given, and there was ample time for them to have been presented for payment before the bank suspended business. They were in fact presented for payment and recognized as paid by the Barnesville Savings Bank, to which they had been sent for collection, before the bank on which they were drawn suspended payment. The checks, upon presentation,, were charged np to "defendant and placed on the “paid file,” where they remained as his property until after the Barnesville Savings Bank had been declared insolvent and had suspended business, when they were, without his consent, returned to the representatives of that bank by the assistant cashier of the New South Savings Bank, in their mutilated condition, caused by the piercing of the “paid file.”. The checks had never been protested np to this time, and the defendant had received no notice of any irregularity in the handling thereof.</p> <p>The case was submitted to a jury, upon evidence introduced by the respective parties to the controversy, and a verdict in favor of the defendant was returned. The plaintiff presented a motion for a new trial, complaining that the verdict was unwarranted by the evidence and contrary to specific instructions given in charge to the jury, and also assigning error on the following charge: “If, between the time of the drawing of the cheeks and the presentation of them at the bank for payment, if the bank failed, if there was reasonable time in which they could have been presented, and if the defendant lost thereby, he would be discharged to the amount of the loss.” The criticism made upon this charge is that there was no evidence that the New South Savings Bank failed between the time the checks were drawn and the time they were presented, but the evidence was that'the bank failed a week or ten days after the cheeks were presented for payment. The court declined to grant another trial, and the judgment overruling the motion is brought under review.</p>

Attachment. Before Judge Crisp. City court of Americas.. August 24, 1905. The Amerieus Grocery Company sued out an attachment against Brackett & Company. The material allegations of the declaration in attachment are .stated in the following opinion. On the first trial the defendants, at the conclusion of the plaintiff’s evidence, moved to dismiss the case, on grounds stated in their demurrer, and because the plaintiff was not entitled to recover under the evidence.

<p>Processioning. Before Judge Spence. Worth superior court. October 28, 1905.</p>

<p>Certiorari. Before Judge Spence. Worth superior court. November 29, 1905.;-</p>

Equitable petition. Before Judge Spence. Decatur superior court. November 14, 1905.

<p>1. The failure of an auditor to file his report within the time limited by the order of the court from which he receives his appointment is a mere irregularity, and a report thereafter filed is not a mere nullity. An objection that the auditor has disregarded the order in reference to the time in which the report shall be made must be urged by an exception raising that question, or by an independent motion to disregard the report, filed within twenty days from the date that the report is filed.</p> <p>2. The ease of Peary v. McDonald, 119 Ga. 865, distinguished.</p>

<p>Certiorari. Before Judge Mitchell. Berrien superior court-September 25, 1905.</p> <p>O’Neill sued the railroad company, in the city court of Tifton,, alleging: He was superintendent of a lumber company which, on the date named, operated in Tifton, on the north side of the defendant’s track, a planing-mill. Between the “planing-mill and dry kiln, and a timber-dressing plant and skids connected therewith,” there was a side-track. The track was within four or five-feet of these structures. When cars loaded with lumber or timber were brought to Tifton over the road of defendant for the lumber company, they were brought by the switch-engine into the sidetrack, and placed at such points “as were directed by plaintiff,” it being his duty to direct the employees of defendant as to the points where such cars should be placed for convenience in loading and unloading. On the day named the switch-engine brought into the side-track three flat-cars loaded with rough lumber, and ■came to a standstill when the first car reached a point opposite the planing-mill, awaiting instructions of the plaintiff as to where the cars should be placed.. A .few feet west of the west car two flat-cars stood on the side-track, loaded with dressed lumber, and within a few inches of each other, uncoupled. Upon one of these oars (the furthest from the switch-engine) stood the defendant’s yardmaster, who, for the defendant, superintended the placing of cars when directions had been given in regard thereto by the plaintiff. While the car last mentioned was standing still, plaintiff, at the invitation of the yardmaster, who was on said car, went upon it for the purpose of directing him as to the 'point where the three cars of rough lumber should be placed. While standing upon the car with the yardmaster and directing him as to the points where the cars should be placed, the switch-engineer, knowing plaintiff’s position upon the car, without any necessity therefor and without warning, suddenly and violently put the engine and cars in motion, thereby striking the car next to the one upon which plaintiff was standing, which in turn struck the car upon which plaintiff and the yardmaster were standing a violent blow, precipitating the car along the siding and down a steep grade, about three car-lengths, where it came in contact with other cars .standing on the siding. When the car upon which plaintiff was standing came in contact with the other cars, it came violently and ■suddenly to a stop, and that part of the lumber upon which his left foot rested was precipitated suddenly forward, while that part upon which his right foot rested remained stationary. His left foot and leg were thus carried forward suddenly and violently, and his left knee-joint was twisted and dislocated, and the tendons and muscles of his knee and leg were strained and ruptured. The •injury is permanent, and by reason thereof his earning capacity has been permanently impaired to the extent of three fourths. As a result of said injury, he has suffered and will always suffer great mental and physical pain. The injury was not due to any fault ■on his part, nor was it inflicted with his consent. It occurred while he,was in the exercise of ordinary and reasonable care and diligence, looking to his own safety, and was occasioned solely by the negligence and carelessness of the switch-engineer of the defendant in striking the car upon which the plaintiff; was standing, in the manner described. At the time of the injury plaintiff was 53 years old, in sound health, capable of earning by his labor, largely physical, $125 per month; and- his earning capacity would have increased during the remainder of his life had it not been for said injury. At the time of the injury he had a reasonable expectancy of 20 years. Damages are laid in the sum of $15,000, and process is prayed.</p> <p>To this petition the defendant filed a general demurrer, and also a special demurrer upon the grounds, that the petition fails to set forth the injury alleged, or what muscles and tendons were ruptured and strained, or what was the particular character of the injury alleged to have been permanent, or the character of the labor, the ability to do which is alleged to have been impaired, or the character of the alleged physical labor the value of which it is alleged would increase as he became older, and which was impaired to the extent of three fourths by the injuries to the muscles of his left leg. The plaintiff filed an amendment to the petition, in which he alleged, that, as a result of the injury, he “sustained a traumatic laceration of the internal lateral ligament of the knee-joint, resulting directly in marked synovitis, with effusion into the knee-joint, attended with swelling and pain;” that the “injury is a permanent impairment of his power of locomotion and general physical activity, with which impairment his experience, training, capacity, and efficiency in his profession as a planing and sawmill superintendent, and as a manager and director of labor generally, is rendered proportionately less valuable to him as a means of earning a living;” and that his earning capacity was that of a “planing and sawmill superintendent and . . superintendent and director of labor generally.” This amendment was allowed, ■and the demurrer was overruled. The case proceeded to trial before a jury, and resulted in a verdict in favor of the plaintiff. The case was carried to the superior court by certiorari, the petition for certiorari assigning error upon the overruling of the demurrer, and upon the verdict and judgment as being contrary to law and without evidence to support them, and upon various -extracts from the charge of the court. The certiorari was overruled, and the defendant excepted.</p>

<p>Habeas corpus. Before Judge Rawlings. Washington superior court. September 25, 1906.</p>

Trespass. Before Judge Hodges. City court of Macon. December 18, 1905. The Gray Lumber Company, a corporation, brought an action of trespass against E. G.' and Mary Harris, doing business under the name of the Dooly Lumber Company, alleging that, they had unlawfully cut certain timber belonging to the plaintiff. The defendants denied that the plaintiff owned the timber, but claimed that it belonged to them, and that they had a right to cut it.

Complaint. Before Judge Peeples. City court of Nashville. December 18, 1905.

<p>1. When the provisions of the aet of December 20, 1898 (Acts of 1898, p. 108; Van Epps’ Code Supp. § 6676 et seq.), for the protection of labels, trade-marks, etc., are considered in the light of the title to the act, the manifest purpose of the General Assembly was to protect the public from the^sale of an article under a counterfeit, imitation, or unauthorized label; and it was immaterial whether the article contained in the package sold was really what the counterfeit imitation or unauthorized label indicated.</p> <p>:2. The evidence authorized the verdict, and no sufficient reason appears for reversing the judgment.</p>

<p>1. When the landlord forecloses a special lien for supplies furnished his tenant to make the crop, and a counter-affidavit is filed by a creditor of the tenant, contesting the amount or justice of the landlord’s claim, or the existence of such lien, the execution issued in the foreclosure proceeding is not admissible in evidence, upon the trial of' the issue thus, formed, in support of the landlord’s claim.</p> <p>2. Instructions of the court to the jury should' be confined to the issues made by the pleadings in the case, even though both the plaintiff’s and the defendant’s counsel, in their arguments before the court and jury, may have treated the.case as embracing other issues between the same parties.</p> <p>3. A verdict which is unauthorized by the pleadings is erroneous.</p>

Indictment for murder. Before Judge Martin. Twiggs superior court. December 19, 1906. Gus Caesar was arraigned upon an indictment charging him with the offense of murder, in that he killed Charles Bivers with a gun. The jury returned a verdict finding him guilty of the offense charged, with a recommendation that he be imprisoned in the penitentiary for life.

Petition for injunction. Before Judge Freeman. Coweta superior court. September 29, 1906. G. B. Sims died in February, 1876, seized and possessed of a. considerable estate. He left a widow and several children as his heirs at law. J. B. and J. E. Sims qualified as administrators on his estate. Dower was duly admeasured and assigned to his widow,, who entered into possession of the land so assigned, and there remained until her death on December 10, 1905.

<p>Injunction. Before Judge Spence. Calhoun superi&r court. October 19, 1906.</p> <p>The Central of Georgia Bailway Company brought an equitable petition against the Town of Arlington, alleging, that the plaintiff is a railway company, engaged in the business of a common carrier over various lines of railroad in this State and in the State of Alabama; that it owns the line of track which runs through the Town of Arlington, and in that town maintains a ticket-office and waiting-room, which is a part of its freight and passenger depot; that the authorities of the Town of Arlington have passed an ordinance imposing upon plaintiff a specific business or occupation tax, amounting to $10; that the plaintiff has refused to pay this tax, and the town authorities have issued an execution which they are threatening to levy upon the property of plaintiff. Plaintiff avers, that it is not engaged in any business in the Town of Arlington except such as is authorized by its charter and the laws of this State and the rules of the railroad commission, as a common carrier of freight and.passengers, and that the ordinance levying the tax above referred to is null and void for the reason that the plaintiff is a common carrier, engaged in the business of carrying freight and passengers from and to various points within and without the State of Georgia, and is not engaged in any business in the Town of Arlington as a common carrier, or any other business, except such as it is authorized to do by its charter, the laws of the State, and the rules of the railroad commission; and the town authorities have no power under its charter to impose a business or occupation tax upon it. The prayer is for an'injunction. The defendant filed an answer, in which it admitted that the plaintiff was a common carrier of freight and passengers as alleged, but averred that it kept and maintained at Arlington a warehouse and storage-room for goods, wares, and merchandise, and charged storage thereon, not as a common carrier of freight, but as a warehouseman, and that it was liable to tax as a warehouseman under the" ordinances of the town.</p> <p>At the hearing the following evidence was introduced: J. G. Jackson testified, that he was agent for the plaintiff at the Town of Arlington, and that the company maintained a ticket-office and waiting-room as a part of its freight and passenger depot in that town, and that plaintiff is not engaged in any 'business in the Town of Arlington except that which is usually engaged in by á railway company as a common carrier; that it is not engaged in the warehouse business, and does not receive, for the purpose of storage, from the citizens of Arlington, or any other persons, any articles of merchandise, and does not charge for the storage of articles delivered to it at Arlington for shipment, but that where articles have been shipped for delivery to persons in Arlington and they remain in the depot and are not taken out in a reasonable time, in accordance with the storage rules of the railroad commission of Georgia, the plaintiff ’does charge storage on such articles, but does not charge any more than is authorized by the rules of the railroad commission. A certain ordinance of the Town of Arlington was introduced in evidence, as follows: “Be it enacted, by the Town Council of Arlington,' Ga., that the following specific tax is levied in said town, to wit: Upon each common carrier not otherwise taxed under the ordinances of said town, upon all their business and occupation carried on in said town which is of such character as to be subject to taxation by said Town Council, the sum of ten dollars. It is the intention of this ordinance that whenever a railroad company or common carrier shall make any charge for any act or service performed by it wholly within the incorporate limits of said town, and sufficiently within, the limits of said town as to be subject to taxing jurisdiction, such as the making of warehouse or demurrage charges for the holding or storing goods in said town, whether the premises on which the storing or holding of such goods be the premises of such carrier or_ not, or whether the interest of such carrier in such charges be sole or joint with someone else, such carrier shall be subject to this tax. And the enumerations herein contained of examples shall not be restrictive to such carrier, but such carrier shall be liable for the tax upon any business within said town which can be lawfully taxed by said town, but shall not apply to carriers who have paid the lawful business tax equal to said sum in said town upon said occupation, or any part thereof, during the present year. Passed in open Council March 3rd, 1903,” Also the following ordinance: “Be it ordained by the Mayor and Council of the Town of Arlington] and it is hereby ordained by authority of same, that from the adoption of this ordinance the business tax shall be as follows: for the fiscal year beginning the first Tuesday in September, 1904, and ending the first Tuesday in September, 1905 [enumerating subjects of taxation]; each railroad company, $10.00. This ordinance passed -the 7th day of September, 1904.” Also the following ordinance: “Be it ordained by the Mayor and Council of the Town of Arlington, and it is hereby ordained by authority of the same, that from the adoption of this ordinance the business tax shall be as follows: For the fiscal year beginning the first Tuesday in September, 1905, and ending the first Tuesday in September, 1906 [enumerating subjects of taxation] : each railroad, $10.00. This ordinance passed the 8th day of September, 1905.”' The execution issued against plaintiff: was also introduced. The defendant introduced the affidavits of five individuals, who each testified that they had freight shipped to them at Arlington, and after such freight had been stored in the warehouse of plaintiff each had been compelled to pay storage charges. L. L. Lyons testified that the plaintiff had paid the business tax of the character sought .to be collected for the two years preceding the year in which the tax now. in question was levied. After hearing the evidence the judge granted the injunction as prayed, and the defendant excepted.</p>

<p>The venue of an equitable petition to enjoin the levy of an execution until a pending motion to set aside the judgment on which it issued can be heard and determined, and complaining of no misconduct of the levying officer, is the county of the residence of the judgment plaintiff, if a resident of the State.</p>

Foreclosure of lien. Before Judge Cobb. City court of Athens. October 24, 1905. The Moss Manufacturing Company brought suit against Saye, contractor, and Mrs. Tuck, owner, to foreclose a lien for materials furnished in erecting a house on land belonging to Mrs. Tuck. The contractor made no defense, and on the trial Mrs. Tuck admitted a prima facie ease for the plaintiff, and undertook to show that she had paid for labor and materials the full contract price of the building.

<p>Equitable petition. Before Judge Mitchell. Berrien superior court. September term, 1905.</p>

<p>Complaint. Before Judge Hamilton. City court of Floyd county. October 25, 1905.</p>

Equitable petition. Before Judge Freeman. Troup superior court. November 18, 1905. Thomas C. Crenshaw, James G. Truitt, and Mrs. Mary A. 'Wright brought an equitable petition against the LaGrange Mills (a corporation), T. M. Eener, Eugenia.C. Peavy, and George L. Peavy.

<p>Appeal — probate of will. Before Judge Beagan. Butts superior court. December 21, 1905.</p>

<p>Injunction. Before . Judge Beagan. Butts superior court. March 30, 1906.</p> <p>The petition alleges, that the plaintiffs are the owners and in possession of certain land on Yellow Water creek, on which they have rented a mill for the purpose of making corn meal; that they have the right of back water over a large body of land adjacent to the mill, “said right of back .water giving them the authority to dam up said creek for the purpose of securing water to run said mill and to grow and propagate fish, . . they having obtained said right of back water by purchase from A. N. Byars and W. M. Mallet,” under a certain deed, a copy of which is exhibited; that they have built a dam for the purposes stated, and have thus made a mill pond, which they have stocked with fish; that they have the land and the pond posted as required by law, but the defendants, B. L. Mays and George Mallet, without authority and over the protest of the plaintiffs, have been fishing in the pond and continue to take large quantities of fish from it, to the damage of the plaintiffs; and that the damage is irreparable and not capable of computation, and said Mays is insolvent. It is prayed that the defendants be enjoined from fishing in the pond. Mallet, in his answer to the petition, admits the right of the plaintiffs to back water over the land for milling purposes, under the deed referred to, but denies that they have any right to fish in the water covering the land, or to propagate fish therein. He admits fishing in the pond, but alleges that “he is part owner and in full control of all the land immediately surrounding said pond,” and, as an heir at law of W. M. Mallet, one of the grantors in said deed, has the same right that he had to fish in said pond. He prayed that the plaintiffs be enjoined from fishing in the pond or interfering with his fishing.</p> <p>The material parts of the deed are as follows: “Georgia, Butts County. This indenture, made and entered into this 25th day of May, 1883, between Harrel N. Byars and W. M. Mallet, of the first part, and John W. McCord Sr. and James R. McCord, of the second part, . . witnesseth, that the said [parties of the first part], for and in consideration of the sum of forty dollars to them in hand paid . . hath granted, bargained, and sold the right to keep and maintain a dam on the Yellow River creek in said county, . . to keep the water at its present height. . . And the said [parties of the first part], for the consideration above mentioned and the further consideration that they have the right to fish in said pond, will hereby warrant and forever defend the above-described right and privilege of back water unto the said [parties of the second part], their heirs and assigns forever in fee simple.”</p> <p>After hearing the evidence, the court enjoined the defendants •from fishing in the pond, and refused Mallet’s prayer for injunction. Mallet excepted.'</p>

<p>1. It appearing that an adjudication of the issues sought to be raised by a proposed amendment affected parties at interest who were not named as parties to the cause, the court did not err in disallowing the amendment.</p> <p>2. The objections urged by the plaintiffs to the admission in evidence of the will of John Neal and the deed from his executors to Key, the same being a link in the defendant’s chain of title, were without merit. “No person but those interested in an estate as heirs or creditors, have a right to complain of any informality in a sale of the lands of the estate so as to set aside the sale.” Ardis v. Smith, 52 Ga. 102; White v. Moss, 67 Ga. 89; Tyson v. Bray, 117 Ga. 689.</p> <p>3. The following instrument from Key to the defendant was a deed, the same being attested as a. deed and having been delivered, and the defendant being in possession of the land; and the "court did not err in admitting it in evidence as a part of defendant’s chain of title: “Georgia, Jasper County. Know all men by these presents, that I have this day given, donated, granted, and conveyed unto Ellen Cargile [the defendant] for and during her natural life, and at her death to a little girl nine years old >by the name of Mamie K. Brooks, in fee simple a certain house and lot [describing the premises in dispute], together with all and singular the rights, members, and appurtenances thereto belonging or in anywise appertaining. But I hereby reserve to myself the right to sell, dispose of, and convey said house and lot if I eh'oose to do so. In witness whereof I have hereunto set my hand and seal this 16th day of April 1891.” Daniel v. Veal, 32 Ga. 589; White v. Eoplcins, 80 Ga. 154.</p> <p>4. Defendant having shown a prior recorded deed conveying title out of plaintiffs’ grantor, and having connected her own possession with such outstanding title, it was immaterial whether or not it was given for the purpose of securing a debt; and the court did not err in directing a verdict for the defendant. Ashley v. Gooh, 109 Ga. 653.</p> <p>5. If plaintiffs have any equities in the lands in controversy, the same can be hereafter determined in a proper px-oeeeding, upon sufficient pleadings.</p>

<p>1. A will contained the following items: (2) “1 wish all of my property kept together and used as I have used the same, during the life of my wife, she to have the privilege, with the consent of my executors, of giving off to my children, as they become of age or marry, such parts as she and they may select, to be accounted for in the final division, as shall be also what I have given heretofore to any of my children.” (3) “At the death of my wife, I wish my property to be equally divided among my children.” (4) “I wish my youngest children, not educated, ■out of the proceeds of my property kept together as above described, to ' be educated in a plain and substantial manner, and the same not to be charged to them.” (5) “If any of my children die without leaving children, I wish the share given to them by this will to revert to my other ■children.” (7) “In the event of my wife marrying, I wish her to have an equal share of my estate set off to her, which shall at her death revert to my children under the above limitations.” Prior to his death the testator had used the property of his estate cultivated as a plantation for the support of himself and his family who resided with him; two of his children having married and moved off before his death. Held, that the will created an estate during the life of the widow, with the title held by the executors, and with the direction that the property should be cultivated as a plantation for the support of the family living upon it.</p> <p>2. The remainder estate created was a vested legal estate.</p> <p>3. When it appeared from an agreed statement of facts that the estate was kept together by the executor who qualified, from the testator’s death in 1861 till November, 1866, “and used as directed in items two and four of the testator’s will;” and it also appeared, from a petition filed by him in 1866, that the widow was living on th'e place during the time mentioned, “under the will,” this was sufficient to show the assent of the executor to the legacy.</p> <p>4. Assent to the life-estate or use operated as an assent to the remainder also.</p> <p>5. Where, after the assent of the executor to the legacy, the widow elected to take dower instead of her legacy, this destroyed any interest on her part in the land under the will, but did not destroy the interest of the children, either in the life-estate or the remainder, nor did it undo the assent of the executor as to them.</p> <p>6. In order for a remainder to be accelerated by reason of the termination of the particular estate for life before the death of the life-tenant, there must be a termination of the whole particular estate, not merely of the interest of one among several who are interested in it.</p> <p>7. An equitable interest of certain children in an estate during the life of a widow, the title being held by the executor, does not merge with a vested legal remainder in such children and others, with possession postponed until after the death of the widow.</p> <p>S. There was no error in rejecting from evidence, when offered to show title, an application by an executor and an order to sell realty which this court had already held void. v</p>

<p>1. Where, in an action of ejectment, brought by an administrator,' the plaintiff relies for recovery upon actual possession, by his intestate, of the tract of land sued for, and the evidence shows that such intestate was in the actual possession of a part of such tract only, and fails to identify the part which was in possession, and to distinguish it from the part which was not, and no color of title to the premises in dispute is shown, a verdict in favor of the defendant is demanded by the evidence.</p> <p>2. In the absence of proof that the plaintiff’s intestate was in possession of the premises at the time of his death, the return of commissioners and the judgment thereon, setting apart the premises as dower to his widow, is not admissible in evidence as tending to show adverse possession by the plaintiff’s intestate, as against one who was administrator upon the estate of the decedent at the time of the dower proceedings, but who, in his individual capacity, was neither a. party nor a privy thereto, and who claims an independent title against the estate.</p> <p>3. An advertisement of land for sale by one as administrator is not admissible in evidence against him in an action of ejectment, brought by his successor in office against him as an individual, as being in the- nature of an admission by the defendant of the prior possession of the intestate, where the only description of the land advertised is “a part of land lot 271 in the 17th district of Harris county, to be sold as the estate of John T. Whitehead.”</p> <p>4. A deed which is void, both as a conveyance and as color of title, because the description of the land contained therein is so indefinite that the land is incapable of being located, is not admissible to show adverse possession in the grantee, even though it be shown that such grantee entered into possession of some land under the grantor.</p> <p>5. It is not erroneous-to refuse a request to give the jury a charge which is not authorized by the evidence.</p> <p>6. A mere general complaint in a motion for a new trial, that a quoted excerpt from the charge of the court is erroneous, is without merit, when the portion of the charge, excepted to states a correct abstract principle of law.</p> <p>7. It is not erroneous to refuse a written request to charge based upon evidence which the court has properly excluded.</p>

Appeal. Before Judge Spence. Worth superior court. October 26, 1905. Stripling sued Jennings in a justice’s court.

<p>1. It appearing from the plaintiff’s equitable petition, that the lands sought to be recovered had been set apart as a homestead for herself and family, and had been sold, without an order from the proper court, to the defendant, who, upon paying a part of the purchase-money, had been put into possession, and the material allegations of the petition being undenied, the court did not err in directing a verdict in favor of the plaintiff, for “the premises in dispute,” no judgment for mesne profits being insisted upon by the plaintiff.</p> <p>2. An amendment to the pleadings which is disallowed in the court below is no part of the record. It should be embodied in the bill of exceptions, or attached thereto as an exhibit, when a review of the refusal to allow the same is sought in this court.</p>

<p>Injunction. Before Judge Mitchell. Berrien superior court. February 18, 1906.</p> <p>Hattie Hutchinson, administratrix of the estate of J. T. Dob-son, sought an injunction to prevent Lewis, Bobinson & Company from cutting and boxing for turpentine purposes the pine timber on certain land. Her petition alleges, that the estate of plaintiffs intestate owns the land in fee simple, and the defendants have no right or title to the timber or turpentine privileges on the same; that in January, 1906, the defendants entered on the land and cut turpentine boxes in the pine trees thereon, and that they continue to do so, with the avowed intention of working the same for turpentine during the years 1906, 1907, 1908; that the trespass referred to “is a continuous one, and will continue, if not stopped, until said boxes are worked out, and will cause a multiplicity of suits;” that “the damage to said timber . . is irreparable, the same being . . reserved for a grove and shade trees, and not for commercial uses, . . .and it will lose all value, which value is only in connection with the homestead as a grove, by its being thus cut and worked;” and that “the cutting of said boxes is an irreparable damage to the estate petitioner represents, . . petitioner’s estate having on it several farms, and a great many cattle and hogs which are dependent upon the grazing upon said lands, and which lands will be greatly impaired for grazing by the falling and djdng of the timber, as the effect will be to denude the land and make it practically unfit for grazing, and will render the damage consequent therefrom incalculable; this dying and falling of the timber also has a tendency to make the land more arid, and hence less fit to farm upon.” The defendants in their answer admit that title to the land is in the estate of the plaintiff’s intestate, and that they entered upon certain portions of the land as alleged in the petition, but they allege that they are the owners of the timber and are entitled to cut and box it for turpentine purposes, by virtue of a lease executed by the plaintiff’s intestate in 1901 to S. B. Pierce, which was transferred to the defendants; they allege that they are solvent, and deny that the damages complained of are irreparable.</p> <p>The brief of the evidence introduced at the hearing of the application for injunction contains several affidavits, and recites that “defendants in the court below introduced in evidence the following : Timber lease from J. T. Dobson to S. B. Pearce, dated December 26th, 1901, recorded December 26, 1905, in book L, page 536, covering all and singular the timber suitable for turpentine purposes growing on parts of lots of land Nos. 512, 513, 514, in the 9th district of Berrien Co., Ga.,” and that the defendants introduced subsequent conveyances described, “covering the lease mentioned,” by which the rights under the lease passed to them. The court granted the injunction prayed for, and the defendants excepted, assigning as error the judge’s refusal to dismiss the plaintiff’s petition on the ground that “no legal abstract of title” was attached to it; the admission in evidence of certain affidavits introduced by the plaintiff; and the judgment granting the injunction.</p>

Injunction. Before Judge Pendleton. Fulton superior court. June 12, 1906.

Action for damages. Before Judge Crosland. City court of Albany. December 13, 1905. Mattie Powell brought suit against the railroad company to recover damages for personal injuries alleged to have been sustained in consequence of its negligent failure to furnish heat in one of its coaches, on which she was being transported as a passenger over its railroad.

<p>Conviction, of manslaughter. Before Judge Spence. Decatur superior court. June 27, 1906.</p>

<p>Indictment for misdemeanor. Before Judge Kimsey. White superior court. October 17, 1906.</p>

<p>Indictment lor murder. Before Judge Seabrook. Miller superior court'. December 15, 1906.</p>

<p>Indictment for mnrder. Before Judge Bawlings. Jenkins superior court. December 12, 1906.</p>