Volume 128 — Georgia Reports

<p>1. Affidavits relating to a ground of a motion for a new trial, which are referred, to therein as being attached to the motion as exhibits, and which are actually so attached, and which 'were filed with the motion as a part thereof, are a part of the record in the ease, and,-when transmitted under the certificate of the clerk, will be considered by this court in the determination of the case.</p> <p>2. Affidavits relating to a ground of a motion for a new trial which are not referred to therein, nor attached to the motion as exhibits, nor filed with the motion as a part thereof, but are each separately filed, can not be considered by this court when transmitted as a part of the record, even though it appear, from a statement of the judge on each affidavit, that the same was used' on the hearing of. the motion for a new trial, and each affidavit was actually filed in office. This rule applies to affidavits offered by the movant as well as to those offered by the respondent.</p> <p>3. When affidavits used on the hearing of a motion for a new trial are not made a part of the record in the case, either by being embodied in an approved brief of the evidence'or otherwise, before the bill of exceptions is certified, the judge has no .authority, by an order passed after the bill of exceptions is certified, to declare such affidavits to be a part of the record. Even if a simple order of the judge would make such affidavits a part of the record, the order must be passed before the bill of exceptions is certified.</p> <p>4. When it appears that a juror who was swbrn and empaneled in the trial of a murder ease had stated that if lie was on the jury he would hang the accused, and the only matter before this court in rebuttal of the charge made against the juror is a statement by the judge, in his order overruling the motion for a new trial,'that he knows the juror personally and by reputation, and that -he is worthy of belief, a prima facie case of incompetency is not overcome; and a new trial should be granted.</p>

<p>1. Tlie -issue in a claim ease comprehends all attacks which the claimant could make on the validity of the fi. fa. After a claimant has litigated through a claim ease and the property has been found subject, and a judgment of -affirmance has been rendered by the Supreme Court, a court of equity will not enjoin a sale under the levy upon any ground, which the claimant might have urged in the claim case, tending to show the invalidity or discharge of the judgment.</p> <p>2. A claimant who is/copcluded by a judgment in a claim case has no right in equity to enjoin ,the fi. fa. (which is against an executor de bonis testatoris.) until an accounting can be had with the executor, on the ground of alleged insolvency of the estate in the executor’s hands, so as to ascertain the relative priorities, of tlie judgment lien and other demands of the. creditors of the estate, with a view of lessening the amount for which the judgment may be enforced.</p>

Indictment for murder. Before Judge Martin. Telfair superior court. July 19, 1906. McLeod was indicted jointly with. Bawlins for the murder of Joseph Studstill, and was tried separately and convicted. From the evidence it appeared that the deceased, an old man living alone on his farm, was found dead in his house, with wounds on the head, apparently inflicted by an axe; and there were circumstances indicating that he had been robbed.

<p>1. The refusal of a judge to require the witnesses in a criminal case to leave the court-room before the solicitor-general begins his opening statement to the jury will not be ground for reversing the judgment denying a new trial, unless it affirmatively appears that some injury, to the accused has resulted from such refusal.</p> <p>2. The evidence authorized the verdict, and no sufficient reason appears for reversing the judgment.</p>

<p>Indictment for murder. Before Judge Martin. Montgomery superior court. January 17, 1907.</p>

<p>Indictment for murder. Before Judge Keagan. Terrell superior court. January 5, 1907.</p>

<p>Indictment for murder. Before Judge Martin. Irwin superior court. January 17, 1907.</p>

<p>Indictment for murder. Before Judge Bawlings. Johnson superior court. January 19,'190?1.</p>

<p>Indictment for murder. Before Judge Beagan. Spalding su-. perior court. February 6, 1907.</p>

<p>Certiorari. Before Judge Lewis. Putnam superior court. December 18, 1906.</p>

<p>Conviction of manslaughter. Before Judge Lewis. Morgan superior court. October 26, 1906.</p>

<p>1. While, in a proper case, on a trial of one indicted for murder, sections 70, 71, and 73 of the Penal Code may all three be given in charge, yet instructions as to the separate branches of the law of justifiable homicide should not be so given as to confuse the different defenses which may arise under those sections, and apparently to limit, by the terms of section 73, the defenses provided by sections 70 and 71. Warrick v. State, 125 Ga. 133, 141, and citations.</p> <p>2. Where the court give iñ charge to the jury substantially sections 70 and 71 of the Penal Code, and then added, “A plea of self-defense involving the doctrine of reasonable fears proceeds upon the idea of defense in good faith against impending danger, either real or apparent. If the person killing acted in his defense, it must appear that the danger was -so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear also that the person killed was his assailant, and that the slayer had really declined to enter any further struggle before the mortal blow was given,” this was calculated, without further explanation, to confuse the defenses provided by these three sections. Nor was this cured by the fact that in a later part of the charge the judge again referred to the existence of a real or apparent danger and acting in good faith in shooting in one’s own defense, as a justification, upon a supposed set of facts then stated by him, the additional charge not being such as to correct or explain the former confusion of defenses.</p> <p>3. A charge which, in effect, instructed the jury that the defendant could not create an emergency which rendered it necessary for another to defend himself, and then take advantage 'of the effort of such other person to do so, was not erroneous.</p> <p>4. A caution of the judge to the jury to watch the evidence carefully, to think of it in the light of the various theories and contentions presented to them, to be sure that they arrived at the truth, and to apply the law which the judge gave them in charge, furnished no ground for a new trial.</p> <p>5. There was no error in charging that “provocation by words, threats, menaces, or contemptuous gestures shall in no ease be sufficient to free the person killing from the guilt and crime of murder.”</p> <p>6. The evidence authorized the charge on the subject of manslaughter.</p>

<p>Indictment for murder. Before Judge Gober." Fannin superior court. December 26, 1906.</p>

<p>1. In a suit by a customer against a bank to recover damages for the wrongful dishonor of his cheek, evidence relating to the customer’s financial credit and standing is allowable, though there be no- claim for special damages.'</p> <p>2. The damages recoverable in such a case are such temperate damages as would be reasonable compensation for the injury. Substantially this measure of damages was given in the charge complained of, when taken in connection with the context.</p>

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

<p>Complaint. Before Judge Eoan. DeKalb superior court. February 1, 1906.</p> <p>Crossley & Company sued the railway company, alleging that they Bad made a contract for the shipment of granite from a point on the defendant’s line to Columbus, Ga., at a given rate, the granite to be shipped to Elledge & Norman, whp were to pay the freight bills at Columbus and deduct from the price of the stone sold them the amount so paid; and that the defendant charged a higher rate, which was paid by Elledge & Norman upon presentation of the freight bills. The suit is brought to recover the difference between the alleged contract price and the amount paid. The defendant, in its answer, denied that it made a contract for any other rate of freight than that actually charged and collected. It also pleaded that Elledge & Norman were the agents of the plaintiffs, and, the payments having been made voluntarily, no recovery could be had for the alleged overcharge. At the trial the judge directed a verdict in favor of the plaintiffs. The defendant made a motion for a new trial, which contained the general grounds and three additional ones. At the hearing of the motion counsel for the defendant, in writing, abandoned all of the grounds except those that raised the question “as to whether the plaintiffs were bound by the acts of Elledge & Norman as their agents in paying the freight.” The judge overruled the motion, and the defendant excepted.</p>

<p>1. Where several defendants were sued and one of them filed a demurrer, which was sustained, hut afterwards the judge, over objection, allowed an amendment to.be made to the declaration, for the purpose of perfecting it in the respects attacked by the denmrrer, and from his judgment the case was brought to this court by bill of exceptions, it was proper to make all of the defendants- parties plaintiff in error. Western Union Tel. Co. v. Griffith, 111 Ga. 551.</p> <p>rZ. Where an action was brought by a materialman against a contractor, a surety on a bond given by him, and a lot owner, seeking to obtain a personal judgment against the two former, and- to foreclose a material-man’s lien on the lot of the last-named defendant, and a general demurrer was filed by the lot owner and sustained, but no time allowed for amending, after the order sustaining it had been signed, and without any motion to revoke it or to reopen it for the purpose of allowing further pleading, an amendment could not be allowed so as to perfect the petition for the purpose of foreclosing the lien.</p> <p>3. In the absence of any motion to reopen the case for amendment as to the demurring defendant, or to revoke the order already signed sustaining the demurrer, although an amendment was filed at the, term when the order was signed and a time was set (not by order, but orally and with a memorandum thereof made) for hearing whether it should be allowed, but the question was not heard until a later term of the court, an^ order then passed allowing it was erroneous.</p>

<p>Warrant to evict intruder. Before Judge Felton. Bibb superior court. May 29, 1906.</p>

<p>A special demurrer to certain, paragraphs and parts of paragraphs of the plaintiff’s petition was sustained by the trial judge, on April 29, 1905, and the plaintiffs were allowed sixty days within which to amend the petition. Within the time allowed they filed the amendment. At the May term, 1906, the case was called in its order, and the court, *on objection of the defendant, declined to al-' low the amendment which had been filed; whereupon the plaintiffs offered an amendment to their amendment. This also the court, on objection, declined to allow. It does not appear that the case was ever dismissed on demurrer, or that any final judgment was entered. The bill of exceptions complains of the refusal to allow the amendments.</p>

<p>1. The act approved September 13, 1883 (Acts 1882-3, p. 337), changing the corporate limits of the town of Roswell as fixed by the act of 1853, construed in connection with the original act of incorporation, fixes the eastern and northern boundaries of the town of Roswell as follows: Beginning where Vickery creek empties into the Chattahoochee river, and running north along this creek to the mouth of Ox-bow creek, thence north along Ox-bow creek until the county line between Cobb county and Milton county is reached, thence along the line between tlie two counties to the northern line of lot 427, thence west along the northern line of lots 427, 411, and 388. The territory embraced in the town of Roswell as thus defined lies exclusively within the limits of Cobb county.</p> <p>(a) The act approved August 7, 1906 (Acts 1906, p. 121), authorizing an election to be held in any town having more than five hundred inhabitants, where the corporate limits of such town embrace territory in' two or more counties, for the purpose of changing the county line so as to bring the town wholly within the limits of one of the counties only, has no application to the town of Roswell; and the election held thereunder, to decide whether the line between Cobb and Milton counties should be so changed as to include the town in the latter county, was absolutely void.</p> <p>2. At the instance of a resident citizen and taxpayer, equity will restrain proceedings instituted under color of law, but which are illegal, the effect of which is designed to "change his domicil from one political subdivision to another.</p> <p>3. Under the act of 1906, providing for the change of county lines within the limits of incorporated towns, it is the duty of the mayor and clerk of the municipality to certify the result of the election to the ordinaries or boards of county commissioners of the counties affected. Such mayor and clerk are proper and necessary parties, where the certification of the result of the election is sought to be enjoined. The act, however, declares that the municipal authorities, after the- result has been certified by the mayor and clerk, shall proceed, in connection with the county authorities, to readjust and change the lines of the counties so affected in such a manner as to include the municipality wholly within the limits of the particular county fixed upon by the election. Where the prayer of the petition is not only to enjoin the town from certifying the result, but also to enjoin the municipality from proceeding to readjust and change the lines between the counties as provided by the act of 1906, the municipality is both a proper and necessary party.</p>

<p>Habeas corpus. Before Judge Littlejohn. Sumter superior court. October 22, 1906.</p>

<p>Indictment for murder. Before Judge Freeman. Troup superior court. January 26, 1907'.</p>

<p>Alimony, etc. Before Judge Brand. Walton superior court. January 9,1907.</p>

<p>Petition for temporary -alimony. Before Judge Martin. Pulaski superior court. December 8, 1906.</p>

The Court of Appeals has certified to this court for decision the following question: Is the act approved December 20, 1898, entitled “An act to amend section 341 of the Penal Code of Georgia, by inserting immediately after the word ‘any’ in the third line and before the word ‘pistol’ the following words: ‘kind of metal knucks,’” unconstitutional, in this, that said act violates paragraph 17 of section 7 of article 3 of the constitution of Georgia, because it undertakes to…

<p>1. The county-court act of 1879, now contained in the Civil Code, §4193 et seq., in so far as it denies to a party in a case involving $50 or less the right of a trial by jury, is violative of that provision of the constitution which declares that trial by jury shall remain inviolate.</p> <p>2. There is in the county-court act above referred to no provision for the empaneling of a jury in a civil ease, and henee a party defendant to a case involving $50 or less can not secure a jury trial in that court by making demand for the same.</p> <p>3. There is no law of force in this State authorizing an appeal from the county court to the superior court in eases where the amount involved is $50 or less.</p>

Indictment for murder. Before Judge Cann. Chatham superior court. January 12,' 1907. Eogers was indicted for the murder of his wife. The evidence for the State showed, that she entered the store of one Andeppa to purchase some fish, and, while she was waiting for her purchase, the defendant entered the store and immediately began firing at her, two shots taking effect, one. in the breast and one in the back. She fell on the floor and expired.

Indictment for murder. Before Judge Mitchell. Colquitt superior court. December 28, 1906. James Johnson was indicted for the murder of his father, JA. Johnson. The evidence showed, that the deceased was shot and killed while sitting at his supper table, the fatal shot being fired by an unknown person from the yard. The testimony connecting the accused with the killing was circumstantial.

<p>Petition for habeas corpus. Before Judge Parker. *Glynn superior court. February 10, 1906.</p>

<p>Petition for interpleader. Before Judge Pendleton. Fulton superior court. November 21, 1906.</p>

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

<p>Action for damages. Before Judge Boan. DeKalb superior court. March, 8, 1906.</p> <p>The petition alleged, that the plaintiff, with the knowledge and consent of employees of the defendant, went upon the engine of its train, while the engine was not in motion, to speak to the engineer; and while conversing with him, the engineer was signaled to leave the station; and that the plaintiff was in the act of descending, using the steps of the engine, when the engineer caused the engine “to suddenly and forcefully move, by turning on the steam,” thereby causing him to be thrown to the ground and sustain serious injuries described. The defendant in its ¿nswer denied that the plaintiff was on the engine with the consent or knowledge df its employees. The court, at the conclusion of the plaintiff’s evidence, ordered a nonsuit, and the plaintiff excepted.</p>

<p>Complaint. Before Judge Roan. DeKalb superior court. Au:gust 17, 1906.</p>

Complaint for land. Before Judge Hammond. McDuffie superior court. Marcb 7, 1906. J. W. Whitely brought complaint for land against Macy P. Gross. ‘The abstract of title attached to his petition contained two items: (1) a deed from the defendant to J. S. Reynolds, consideration $2,000; and (2) a deed from J. S. Reynolds to the plaintiff. The •defendant filed a plea admitting her possession of the land and denying the right of the plaintiff to recover.

<p>1. Where a widow, as sole heir of her deceased husband, took possession of his estate without administration, under the Civil Code, § 3356, par. 1, claiming that there • were no debts, on a suit by her to recover property which it was contended had belonged to her husband, the presiding judge properly refused a request to give a charge to the effect that any debt which the deceased husband might have owed, which, was not known to the wife and not brought to her knowledge, would, not defeat the title to any of the property vesting in her, and that the law “only contemplated the payment of such debts of her husband as were brought to her knowledge.”</p> <p>2. Where exception is taken to a charge, hut no error is assigned thereon, save that the court erred in so charging, and such charge states a proposition of law which is in the abstract correct, this court will not consider whether it is applicable or appropriate to the case.</p> <p>3. Where suit was brought for the possession of a cow, and the defendant contended, that it had belonged to her deceased brother, that she had performed services for him in his lifetime, and he had promised to give her the cow, that after his death his widow, who was the plaintiff, asked the defendant if she desired any of the property which had been left by the deceased, that the defendant replied that she wished the cow which her brother had promised to her or given to her, and that thereupon the widow made a parol gift and consummated it by delivery of possession, there was no error in admitting testimony tending to show a promise by the deceased in his lifetime to give the cow to the defendant. Such evidence did not show a parol gift by the deceased, but, in connection with the other evidence, threw light upon the probability of the correctness of the defendant’s contention.</p> <p>4. The evidence sustained the verdict, and there was no error in overruling the motion for a new trial.</p>

<p>Action for damages. Before Judge Cann. Chatham superior court. July 7, 1906. :</p> <p>1 McClelland brought suit against the Savannah Electric Company, to recover damages for.personal injuries alleged to have been sustained because of the negligente .of. its employees in the operation of its cars. The petition .alleges, .that .the plaintiff presented himself at the usual place for boarding the cars, of the defendant, with the bona fide intention of becoming.a passenger on one of its cars; that “car number 51 . . came along, going in a northerly direction on said West Broad Street, and he signaled it for the purpose of boarding the car as d passenger, and it stopped for him to get on; . . that as he stepped up on the running-board, on the eastern side of said car, with his right foot, he attempted to grasp the handle-bar with his left hand, having several packages in his right arm; and that before he could secure himself or get himself entirely on board of said car, it suddenly and violently started forward, tearing his grip on the hand-bar loose, and threw him heavily upon the cobble-stones,” etc. It is alleged that the injuries sustained were caused by the defendant’s negligence, without any fault or negligence upon the part of the plaintiff. At the trial the plaintiff introduced evidence to support this contention. The defendant filed a general denial to plaintiff’s declaration; and the motorman, a witness for the defendant, testified that the plaintiff did not signal him to stop the ear, and that the car did not stop. The conductor and a passenger also testified that the car did not stop, and that the plaintiff was endeavoring to board a moving car. The verdict was in favor of the plaintiff; and the defendant excepts to the refusal of a new trial.</p>

<p>Distress warrant. Before Judge Felton. Bibb superior court. April 19, 1906.</p>

<p>1. Where, under the Civil Code, §2505, on a writ of habeas corpus sued out against the mother of illegitimate children under twelve years of' age, their custody was awarded to a charitable institution bearing the name of the “Orphans Home of the South Georgia Conference of the Methodist Episcopal Church South,” on the hearing of another writ of habeas corpus, subsequently sued out by the mother, an objection to the admission in evidence of the record of the proceedings and judgment in the first case, based on the ground that the name showed that the institution to which they were awarded was sectarian in character, and that this was a violation of the constitutional guaranty of religious liberty, was properly overruled, and the evidence was rightly admitted.</p> <p>2. On the “hearing of a proceeding by writ of habeas corpus, under the Civil Code, §2505, to take the custody of illegitimate children under twelve years of age from their mother and to award their custody to a charitable institution, on the ground that she was a notoriously immoral woman and unfit to rear them and unable to provide for them, that their father or fathers had abandoned them, and that they were being reared under immoral influences likely to degrade their moral characters and devote them to vicious lives, or on the return and hearing of another writ of habeas corpus, subsequently sued out by the mother, seeking the restoration of their custody to her, evidence that her general reputation for chastity in the community where she lived was bad, and that she was generally reputed to be an immoral woman, was 'admissible, as well as evidence of specific acts tending to show that she was an improper person to have the care and custody of the children.</p> <p>3. In such a case as that indicated in the preceding notes it was not competent for witnesses to state that in their opinion the mother was an unfit person to rear her children.</p> <p>4. If a witness has knowledge as to the property of a woman, her occupation or means of support, and the number of her children, the cost of rearing children, or other like facts, he may state the facts within his knowledge, and in addition thereto may give his opinion, based thereon, as to her financial ability to rear such children, on the hearing of a proceeding by habeas corpus to take them from her custody on the ground that she is unfit and unable to rear them. But it is not competent for a witness to state, upon hearsay or reputation, that a woman is unable to rear her children.</p> <p>5. It was not admissible to prove by the ordinary before whom the first trial was had that he knew the mother of the children only from having seen her at that trial, that his knowledge as to her chastity and reputation was based entirely on what-he heard from evidence at such trial, and that from that evidence he would say that such reputation was bad.</p> <p>6. Section 2505 of the Civil Code was not repealed by the act of 1904 touching the committing of children in certain cases to charitable institutions (Acts 1904, p. 93).</p>

<p>Injunction. Before Judge Littlejohn. Lee superior court. January 10, 1906.</p>

Indictment for rape. Before Judge Boan. Fulton superior court. January 26, 1907. Tbe defendant was convicted of rape, and moved for a new trial, which, was refused, and he complains in his bill of exceptions that the court erred in overruling his motion for a new trial.

<p>Petition for injunction. Before Judge Parker. Ware superior court. October 13, 1906.</p>

<p>Injunction. Before Judge Parker. Charlton superior coiirt. January 8, 1907.</p> <p>The Downing Lumber Company, alleging itself to be the owner of two described lots of land, brought its action against Medlin & Sundy, to enjoin an alleged trespass, and to recover damages therefor. At the interlocutory hearing it was agreed between counsel for the parties, for the purpose of that hearing, that the two lots of land were granted by the State respectively to Zachariah Melton on September 1,1810, and to David Eogers on September 25, 1805 ; and that Melton died about the year 1870, and Eogers in 1838. On June 4, 1906, Mrs. Annie Melton was appointed administratrix upon the estate-of Zachariah Melton, by the ordinary of Twiggs county; and on August 6, 1906, Mrs. S. M. Anthony was appointed administratrix on the estate of David Eogers, by the ordinary of Oglethorpe county. Copies of the application for letters of administration by Mrs. Melton and Mrs. Anthony, upon which due and legal advertisement and all other legal formalities were had, were attached; and it was further agreed that Mrs. Melton and Mrs. Anthony, respectively, “after being thereunto regularly authorized, conveyed, in their respective capacity as administratrix, the said two lots five and six respectively to the . . Downing Lumber Company.” It was admitted, that the defendants intend to occupy the land, and to cut and utilize all the timber thereon; and that the plaintiff was entitled to a temporary injunction unless the grant of administration to Mrs. Melton and Mrs. Anthony “is void and subject to collateral attack” for the following reasons: First, that neither petition for administration alleged any facts conferring jurisdiction on the court of ordinary of the respective counties to make either appointment; second, because it appears from the respective applications that neither of the respective courts of ordinary had jurisdiction to appoint either of said applicants administratrix; third, because it appears from each of the applications that administration was unnecessary upon either estate; and fourth, because neither petition showed any right on the part of either applicant to be appointed administratrix. The applications for administration were respectively as follows: That of Mrs. Annie Melton, addressed to the court of ordinary of Twiggs county, alleged that “Mrs. Annie Melton, a citizen of the Dnited States, residing in said State, respectfully shows that Zachariah Melton, late of Twiggs county, Georgia, died intestate about the year 1870, leaving an estate of realty and personalty of the probable value of one hundred dollars. Petitioner further shows that administration on said estate is necessary for the purpose of distribution of said estate among the heirs of the said Zachariah Melton, deceased. Petitioner is entitled under the law to be appointed administratrix upon said estate, being one of the next of kin of the deceased.” Then follows the usual prayer. Mrs. Anthony’s application, addressed to the court of ordinary of Oglethorpe county, recites that ■she, “a citizen of the United States residing in said State, respectfully shows that David Eogers, late of Oglethorpe county, Georgia, died intestate in the year, 1838, leaving an estate consisting of realty' and personalty of the probable value of one hundred dollars. Petitioner further shows that administration on said estate is necessary for the purpose of distribution of said estate among the heirs of said David Eogers, deceased. Petitioner is entitled under the law to be appointed administratrix upon said estate, being one of the next kin of the deceased.” This is followed by the usual prajrer. The court granted the injunction, and the defendants excepted to this judgment.</p>

Equitable petition. Before Judge Pendleton. Pulton superior court. March 24, 1906. Park filed his petition against Mrs. W. A. Callaway, her attorneys, and the constable of a justice’s court, alleging, in brief, as follows: Mrs. Callaway brought a suit in a justice’s court against Park. At the term to which it was returnable, a bill of particulars was demanded, and the case was continued. Park pleaded to the suit.

<p>Appeal. Before Judge Eawlings. Bulloch superior court. April 27, 1906.</p> <p>James Bowen, by his next friend, petitioned the ordinary of Bulloch county to revoke letters of guardianship granted to J. I. Dickerson. In his petition it is stated, that he is a minor child of Elizabeth Lyons, and is over the age of fourteen years; that he is a resident of Chatham county; that J. I. Dickerson is his present guardian; that he desires the removal of Dickerson as guardian, and has, as required by law, presented Mrs. Elizabeth Lyons to the ordinary of Chatham county as a fit and suitable person, and one whom he desires to be his guardian, and that she has accepted the trust, and will, upon appointment, qualify. In response to the rule nisi served upon the guardian, he answered that the guardian selected by, the ward was not a fit and proper person to have control of the person and property of the minor; for reasons alleged in the answer. The ordinary passed an order revoking the letters of guardianship upon the appointment and qualification of a guardian by the ordinary of the county of the residence of the ward. From this judgment an appeal was taken to the superior court; and there, by written demurrer, the applicant moved to strike the answer of the guardian. The demurrer was sustained, £?nd the appeal dismissed; and Dickerson excepted.</p>

Complaint for land. Before Judge Eawlings. Jefferson superior court. May 17, 1906. William M. Walden, and Sallie, Katie, and Preston Walden, by their next friend, brought suit against William Walden to recover certain land. The defendant filed a plea of res adjudicata.

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

Complaint. Before Judge Cann. Chatham superior court. June 30, 1906. ■ ' Mrs. Maud L. Zipperer, as administratrix of the estate of her husband, E. O. Zipperer, and as his widow and head of his dependent family, consisting of herself and their minor child, Gladys, filed suit against the Mayor and Aldermen of the City of Savannah, for six months’ salary, at $60 per month, and $50 funeral expenses, of her husband, alleging, that he was killed while in the discharge of his duty…

Action for damages. Before Judge Felton. Houston superior court. April 4, 1906. Moore, a minor, by his father as next friend, sued for damages on account of personal injuries.

<p>1. It is tlie duty of a sleeping-car company to exercise reasonable care to guard the personal effects of a passenger from theft; and if, through the want of that care, such effects as a passenger may properly carry with him on his journey be stolen, the company will be liable therefor. The personal effects which a passenger may properly carry with him on a journey may include articles of personal adornment, such as jewels, and the like.</p> <p>2. The evidence authorized the verdict. The charge excepted to was not erroneous for any reason assigned. The requests to charge, so far as legal and pertinent, were covered by the general charge. No sufficient reason appears for reversing the judgment refusing to grant a new trial.</p>

The Court of Appeals lias certified to this court the following' question: “Is the act approved August 13, 1904, entitled ‘An act providing for the situs of debts due to non-residents for purposes of attachment, and for other purposes’ (found in Georgia Laws, 1904, p. 100), contrary either to the constitution of the Hnited States or to the constitution of the State of Georgia, for the reason that the legislature of Georgia has no authority or power to pass an act having an…

<p>Complaint. Before Judge Parker. Appling superior court. January 2, 1906.</p>

<p>1. Where no brief of the evidence has been filed, but the evidence is ■brought to this court in the bill of exceptions, and no additional evidence is sent up in the manner provided by the statute, the bill of exceptions can not be changed or corrected in substantial particulars and evidence added by agreement of counsel in this court.</p> <p>2. Under a power in a will authorizing' executors to sell land at private sale, where two executors qualify both must join in a deed made under the power.</p> <p>3. That one of the executors had moved from the county of the administration to another county of this State, and had ceased to actively participate in the administration of the estate, but had neither resigned nor been removed, would not alter the rule.</p> <p>4. Two executors, having a power of sale under á will, conveyed land of the testator, received a part of the purchase-money, and took a mortgage for the balance, which was foreclosed, and the land sold under the execution and bid in and conveyed to one of the executors (the other having moved out of the county and ceased to actively par- • ' ticipate in the management of the estate). The executor so taking a conveyance afterward alone conveyed to a third person. The executor’s returns thereafter showed a cash receipt as final payment from the original purchaser. The widow of the testator, for herself and as guardian ad litem of her children, brought suit against the executor for an accounting, referring in the petition to returns of the executor. Subsequently a litigation arose between one claiming title under the person to whom the executor conveyed, and the widow, in regard ,to the land. Held, that it was error to reject from evidence the deed made by the executor, and also certain testimony to show, that the mortgagor agreed with the executor to let the property go to sale under the execution, for the executor to bid it in and allow a reasonable time for the mortgagor to redeem, and, upon his doing so, that the title should be conveyed to him or as he directed; and that this was carried out, the redemption was made, and the conveyance to the third person was in consummation thereof.</p> <p>5. If an executor had not authority to convey land, but did so and received the proceeds, and a devisee, with knowledge or notice of the substantial facts, brought suit against the executor to recover the proceeds, this amounted to an election to confirm and ratify the conveyance.</p> <p>6. The doctrine of election between inconsistent remedies discussed.</p> <p>7. The record of the suit and judgment claimed to operate as res adjudicata in this case is so briefly referred to in the bill of exceptions that it is impracticable to determine whether it had that effect or not; and the question is left open.</p> <p>8. Where suit is brought to recover an entire tract of land, or claiming the fee-simple in land, and the evidence shows that the plaintiff is entitled to recover less land, or a less interest than that sued for, a nonsuit should not be granted.</p> <p>9. But where one claiming to be the sole owner in fee of land brings an equitable petition against another, alleged to be a mere trespasser, not to recover the land, but to enjoin the defendant from trespassing thereon or interfering therewith, if the evidence shows that the defendant is not a trespasser, but a tenant in common with the plaintiff, and as such entitled to possession along with the plaintiff, the rule stated in the preceding note does not apply. Trespass by one having no title is not the same as an entry by a eotenant, even if accompanied by wrongful conduct.</p>

<p>Petition for injunction. Before Judge Parker. Coffee superior court. October 10, 1906.</p>

Action on contract. Before Judge Pendleton. Fulton superior court. July 2, 1906. The Cherokee Mills of Cedartown, Georgia, brought suit against the Gate City Cotton Mills, a corporation of Fulton county, seeking to recover damages for a breach of contract. A verdict for one thousand dollars was found in favor of the plaintiff. The defendant moved for a new trial, the motion was overruled, and it excepted.

<p>1. In most of its features this case is controlled by that of Bridwell v. Gate City Terminal Go., 127 Ga. 520.</p> <p>2. Where the petition of the plaintiff alleged, that there was “a private alley” adjacent to his lot which it was sought to condemn, that his property consisted not only of the piece which the defendant was endeavoring to condemn, but also other property, “which receives benefit from said alley, . . and that it has not undertaken to condemn the interest of your petitioner in said alley in said condemnation proceedings,” but there was no distinct allegation as to what the interest of the plaintiff in such alley was, or whether he had a title in fee to the alley or to any part of it, the allegations will be most strongly construed against the pleader, as indicating that his interest was an easement of way, or like right, appurtenant to this and other lots.</p> <p>3. So construed, if the company proceeded to condemn the lot it would “become vested with such interest in the property taken as may be necessary to enable the corporation” to exercise its franchise or conduct its business, with reversion to the person from whom it may be taken, should the property cease to be used for such purposes. A proceeding to condemn the lot or a portion of it would include compensation on account of an easement or similar appurtenance connected with the lot; and this would be taken into consideration in the assessment.</p> <p>4. If it had been alleged and shown that the title to all or part of £he alley was in the lot owner, and that the proposed right of way included within its limits both the alley adjacent to the lot and a portion of the lot itself, it would seem that the company could not leave uncondemned the alley, or that part of it to which the landowner had title, and condemn the strip from his lot adjacent to it, thus separating -the remainder of the lot from the alley and leaving the latter within the right of way. But the pleadings and evidence in the present case do not distinctly raise this point.</p> <p>5. The contention that the notice of the proceeding to condemn was not authorized at the time when it was given, which was involved in the case of Bridivell v. Gate City Terminal (Jo., supra, is not involved in this case.</p>

<p>Petition for injunction. Before Judge Rawlings. Johnson sur perior court. August 11, 1906.</p>

<p>Equitable petition. Before Judge Cann. Chatham superior court. April 14, 1906.</p>

<p>Action for damages. Before Judge Iiammond. • McDuffie superior court. June 13, 1906.</p>

<p>Equitable petition. Before Judge Oann. Chatham superior court. April 14, 1906.</p>

<p>1. A deed conveying “all that certain tract or parcel of land situate, lying, and being in the 20th G. M. district of Bryan county, State of Georgia, and containing three hundred and twenty acres, more or less, and bounded as follows: On the north by Bryan road, east by lands of Charlton, south by lands of Charlton and White Oak plantation, and on the west by lands .of White Oak plantation and the lands of Henderson; the said tract being known as the W. G. Sutton place,” is a conveyance of land by the tract, and not by the acre.</p> <p>2. Where land has -been sold and conveyed by the tract, the number of acres being mentioned in the deed only as a part of the description, and not by way of covenant, in the absence of actual fraud no recovery can be had by the purchaser against the vendor on account of the deficiency in quantity.</p> <p>3. A deed conveyed a described parcel of land and certain personal property, and recited the consideration as a stated sum of money. Held, that parol evidence was admissible to show how much of the consideration applied to the land, and how much to the personal property.</p> <p>4. Parol evidence - is admissible to show that an indorsement on a note was made for a special, purpose; for instance, as an authority to-collect.</p> <p>5. The evidence on material questions of fact being conflicting, the judgment refusing to grant an injunction will not be interfered with.</p>

Equitable petition. Before Judge Felton. Bibb superior court. February 7, 1906. Allen brought suit against Clifford Locke, administrator of the •estate of B. D. Locke, deceased, and Hendricks, to compel the administrator to make him a deed to a certain tract of land, and to enjoin Hendricks from foreclosing a mortgage on the land, and to cancel the mortgage.

<p>Complaint. Before Judge Felton. Houston superior court. April term, 1906.</p>

Petition for injunction. Before Judge Gober. Cobb superior court. July 25, 1906. This was a petition to restrain the defendant from proceeding to condemn certain land, the property of the plaintiff, to be used by the defendant for the purpose of backing water upon it by a dam about to be constructed. The defendant had instituted condemnation proceedings as a waterworks company, under the Civil Code, §2407-9.

<p>1. In 1892 land was sold, bond for title given-, part of the purchase-money paid in cash, and notes taken for the balance. When the last note fell due, the purchaser filed an equitable petition seeking to have it cancelled and the contract rescinded because of alleged false representations and promises as to the satisfaction of a mortgage given to a third party. The vendor filed a cross-petition and prayed for judgment on the note. A decree was rendered in 1899, that the vendor recover of the purchaser certain named amounts, and that execution issue therefor upon his filing with the clerk of the court a good and sufficient warranty deed. in fee simple to the lots sold. The vendor filed a warranty deed. The purchaser filed another equitable petition, seeking to enjoin the vendor from proceeding, alleging that the vendor did not have a good title, and that certain minors had an interest in the land. This court held that injunction should be granted. Another person, having succeeded to the rights of the vendor and taken an assignment of the judgment, perfected the title, became a pai'ty; and prayed to be allowed to proceed. The purchaser sought to set up-a depreciation in the value of the land' occurring between the date of the purchase and the decree of 1899. The ¡court ruled that this could not be done. Eeld, that this ruling was correct.</p> <p>2. The allegations seeking to set up a claim for attorney’s fees and expenses were not sufficient to authorize a recovery thereof, and were properly stricken.</p> <p>3. There' was no error in thet-rulings of the presiding judge, or in the decree entered, which requires a reversal.</p>

<p>Petition for injunction. Before Judge Beagan. Pike superior court. October 8, 1906.</p>

Mandamus. Before Judge Pendleton. Fulton superior court. June 18, 1906. The Atlanta Stove Works applied to the superior court of Fulton county for the writ of mandamus against the Southern Bailway Company. The petition alleges, that the petitioner is a corporation, duly organized under the laws of the State of Georgia, and engaged in the business of manufacturing and selling stoves, ranges, hollow-ware and other similar products.

Appeal. Before Judge Hammond. Richmond superior court. May 18, 1906. ' E. B. Blackburn, S. H. Blackburnj and Louisa Hodges instituted a proceeding in the1 court'of ordinary, against Gertrude Woodward, administratrix, to compel a settlement of the estate of Ashley O. Best, deceased, the plaintiffs claiming to be collateral kinsmen and heirs at law of the decedent, and entitled to a share of his estate.

<p>Ejectment. Before Judge Seabrook. Chatham superior court. February 24, 1906.</p> <p>Wachstein sued Christopher, alleging, in his petition, that the plaintiff was the owner, in fee simple, of a described lot of land in the city of Savannah, and that the defendant had erected upon an adjoining lot, owned by the defendant, a brick building, the northern wall of which extended along the. line between the plaintiff’s lot and the defendant’s lot for a distance of 75 feet; that in erecting this wall along the southern line of the plaintiff’s lot, the defendant made an excavation, several feet in depth, and placed therein a brick foundation for the wall, extending the entire length thereof, and constructed the foundation beyond the line of the wall, so that it projects into, over, and upon the plaintiff’s land, twelve inches at one end and four inches at the other, along the entire length of the wall; that by reason of these facts the defendant is in possession of a strip of land of the character above described, and the plaintiff is denied the full and free possession and enjoyment of that portion of his lot; and that the defendant refuses to deliver possession of the strip of land referred to, notwithstanding the plaintiff has demanded that he remove the encroachment of his foundation. The prayer is that the defendant “be required to remove from the land of petitioner the encroachment of the foundation upon the same.” The defendant demurred, on the grounds that the petition set forth no cause of action, and that the only remedy prayed for was beyond the power of the court to grant. The demurrer was sustained, and the plaintiff excepted.</p>

Complaint. Before Judge Holden. Hart superior court. May 24, 1906.

<p>Action for damages. Before Judge Bussell. Gwinnett superior court. January 11, 1906.</p>

<p>Equitable petition. Before Judge Bussell. Walton superior court. August 24, 1903.</p>

<p>Action for damages. Before Judge Bussell. Franklin superior court. February 13, 1907.</p>

<p>Action for damages. Before Judge Bartlett. Paulding superior court. May 5, 1906.</p>

Petition for injunction. Before Judge Mitchell. Brooks superior court. July 21, 1906. This case results from the judgment which was under review in McCall v. Miller, 120 Ga. 262. Eeference may be had to the report of that case for a history of the transaction. The property admitted to be in the hands of the garnishee was claimed by Miller.

<p>Indictment for murder. Before Judge Freeman. Troup superior court. January 20, 1907.</p>

<p>Indictment for murder. Before Judge Worrill. Early superior •court. February 22, 1907.</p>

<p>Indictment for murder. Before Judge Kimsey. Hall superior court. March 14, 1907.</p>

<p>Habeas corpus. Before Judge Pendleton. Fulton superior court. March 8, 1907.</p>

<p>Ejectment. Before Judge Parker. Appling superior court. March 5, 1906.</p>

Equitable petition. Before Judge Bawlings. Tattnall superior court. September 7, 1905.

Petition for injunction. Before Judge Brand. Jackson superior court. December 3, 1906. W. H. Toole and C. C. Kimsey, “doing business under the firm name of the Statham Warehouse Company,” filed an equitable petition against T. J. Lanier, in which they prayed that he be -enjoined from proceeding with either of two suits against them under the firm name of Kimsey & Toole, pending in a certain justice’s court.

Action for damages. Before Judge Rite. Gordon superior court. May 12, 1906. The suit was against the Atlanta, Knoxville & Northern Railway Company and the Louisville & Nashville Railroad Company.

<p>1. A suit against two railroad companies, one a foreign corporation and the other a domestic corporation, in which the petition sets forth no cause of action whatever against the domestic corporation, either as a joint wrong-doer with a 'foreign corporation or otherwise, and the amount in controversy exceeds two thousand dollars, is removable to the Federal court, on the application of the foreign corporation, upon the ground of diverse citizenship.</p> <p>2. It has been judicially determined that the petition in the present case sets forth no cause of action against 'the domestic corporation therein named as a defendant.</p>

Action for damages. Before Judge Bartlett. Haralson superior court. January 16, 1906. King brought suit against the Southern Railway Company, alleging as follows: The defendant has injured and damaged him in the sum of $1,999. On November 8, 1900, he purchased a ticket from the agent of the defendant company at Waco, a station on said road, to Atlanta and return, paying therefor the regular round-trip rate of' fare.

Injunction, etc. Before Judge Freeman. Troup superior court. June 22, 1906. J. T. Zaehry filed bis equitable petition against J. H. Smith, alleging as follows: On October 17, 1898, plaintiff obtained two judgments against defendant, based on promissory notes containing waivers of all homestead and exemption rights of himself and family under the laws of the State or of the United States.

<p>1. A judge of the superior court is not disqualified to preside for the second time at an' interlocutory hearing for injunction to prevent the change of location of a railroad track in a city’s street because his judgment rendered on the first hearing recited that his conclusion had been reached in part from an inspection of the tracks in the street, and had been vacated by this court for that reason.</p> <p>2. Many of the conclusions of the witnesses, based on relevant facts stated by them (to which objection was made), related to a subject-matter which was provable by opinion evidence. While some of the conclusions may not have been strictly within the rule of opinion evidence, they were of such a character that the objecting litigant could not have been harmed by the evidence.</p> <p>3. A regulation by a city, requiring a commercial steam-railroad company to change the location of its tracks in a street, is a legitimate exercise of municipal police power, when such regulation is reasonable and promotive of the general welfare and convenience of the city and its inhabitants.</p> <p>■4. The evidence before the judge authorized a finding that the ordinance, which required the railroad company to shift the location of its tracks within a certain street, was reasonable, and conducive to the welfare and safety of the public.</p> <p>S. Such a reasonable regulation by a municipality is the exercise of a legislative function; and notice of the proposed enactment of any ordinance prescribing such reasonable regulation to the parties to be affected by it, previously to its adoption, is a privilege, and not a right.</p> <p>6. The city may enforce a reasonable regulation which requires a railroad company to move its tracks a few feet in a street, by itself making the proposed change at the company’s expense, after notice to the railroad company, and failure by it within a reasonable time to perform the work.</p>

<p>1. The writ of mandamus will not issue to compel a judge of the superior court to sign a bill of exceptions complaining of a ruling made in a case-which was not within the jurisdiction of the superior court, when1 such want of jurisdiction appeal’s from the application for the writ.</p> <p>2. Performance of a political function by a court is not inherently judicial, and whatever jurisdiction over matters of a political nature with which courts may be constitutionally invested is derived from a statute.</p> <p>3. The Political Code, § 1546, conferring on the superior court jurisdiction in cases of contest of a local-option election, limits that jurisdiction to matters involved in the ascertainment of the true result of the election,</p> <p>4. The uneonstitutionality of the act under which the election is held,, and the validity of the election as dependent on compliance with the. prerequisites for calling the election, are not comprehended within the scope of the contest provided for in this code section.</p> <p>5. The costs accruing in this court in an application for mandamus against, a judicial officer are taxable against the applicant.</p>

Complaint for land. Before Judge Bawlings. Johnson superior court. March 24, 1906. The plaintiff claims as remainderman after the termination of the life-estate, under a deed executed by G. C. Baines, dated August 10, 1892, conveying the premises in dispute to Buth D. Walker for life, and at her death to Bitie Anna Walker and Lena A. Walker, her minor children.

<p>Application for mandamus.</p>

<p>1. The plaintiff sued for damages for the breach of a contract for the transportation of goods which were delivered to the defendant at Vidalia, Georgia, to be transported to Savannah.</p> <p>(a) The declaration proceeds upon the theory that the shipment from Vidalia to Savannah was initial, and the plaintiff does not, by his pleadings, invoke the rules of law governing the interchange of freight between connecting carriers.</p> <p>{&) The defendant is liable to the plaintiff for any damage to the property to be transported, resulting from injury caused by the negligence of the defendant’s servants after, but not before, the property was received by them for transportation.</p> <p>(o) Under the evidence submitted, the Macon, Dublin & Savannah Railroad Company was the agent of the plaintiff for the purpose of delivering to the defendant the property intended to be transported from Vidalia to Savannah.</p> <p>2. The evidence was of such character as to show that, under a prevailing custom at Vidalia, the mere placing of a car by the Macon, Dublin & Savannah Railroad Company upon the “transfer track” owned and maintained by the latter company, in the absence of some affirmative act by an authorized agent of the defendant, amounting to an acceptance, was not a delivery of the car to the defendant. A delivery under such custom would not be complete before actual acceptance of the ear by the train crew of the defendant, whose duty it is to carry it upon its route.</p> <p>■3. Under the issues made by the pleadings, the written contract which was introduced in evidence by the defendant was not relevant upon the questions made by the defendant; and the charge of the court with respect thereto does not, for any reason stated, furnish the defendant good ground for a motion for new trial.</p> <p>4. The verdict for the full principal sum alleged to be due in the plaintiff’s declaration is unauthorized by the evidence, for the reason that it affirmatively appears from the uncontradicted evidence that some of the damage covered by the verdict accrued to the plaintiff before the property was received by the defendant for transportation.</p>

<p>Equitable petition. .Before Judge Felton. Bibb superior court. February 6, 1906.</p> <p>Mary Belle Cochran, a minor, by'her next friend, brought suit against Mary A. Gallagher, as administratrix of Edward Gallagher, and also individually, seeking to recover the sum of $2,327.03, claimed to be money of the plaintiff which Gallagher had taken in his lifetime and delivered to Mary A. Gallagher, who received it with knowledge- and converted it. Pending the suit the plaintiff became of age and married one Jackson. An order was taken striking the next friend and allowing the suit to proceed in her own name. The evidence showed as follows: On July 31, 1893, Gallagher had an account in the savings department of the Southern Bank of the State of Georgia, showing a deposit in his name of $1,600. On that day he closed out his individual account, drawing a check for the amount thereof and redepositing it in the same bank to his credit as agent for Mary Belle Cochran. He made other deposits in the same way. On January 16, 1894, he thus deposited $150; on January 7, 1895, $100; on May 14, 1895, $160. These deposits were made by him in person. At the time of making them he said nothing as to the person to whom the money belonged. He wrote no letters in regard to the^ deposits, but transacted the entire matter personalty. The interest on the account amounted to $317.03, making the total to his credit as agent for Mary Belle Cochran $2,327.03. On May 13, 1896, he drew against the account his check for $100. On June 17, 1897, he drew $500. On May 17, 1898, he drew a check for the balance of $1,727.03. This check he then deposited in the bank to his credit as agent of Mary A. Gallagher, his wife. Later he died. This last deposit, with the interest thereon of $62.82, making a total of $1,789.85, after his death was drawn out by Mary A. Gallagher, by a check which was deposited in another bank, and this deposit in the second bank was after-wards drawn out by her. The accountant for the original bank testified that the deposit by Gallagher in his name as agent for his wife was a mere method of changing the account from himself as agent for Mary Belle Cochran to himself as agent for his wife.</p> <p>The mother of the .plaintiff testified, that her husband, the father of the plaintiff, died, leaving seven shares of bank stock and several hundred dollars besides “that went to my daughter;” that this was taken charge of by Edward Gallagher, her brother; that she received the certificate of stock from .his administratrix after his death; that her husband gave her $1,400 before his death; that she used some of it and loaned out some of it; that she loaned to Edward Gallagher $1,500; that she married again, but the second marriage being unhappy, she left her second husband and went to live with Gallagher, who was at that time kéeping a general merchandise store; that she performed services in the store; that he subsequently built another store, and she carried on business there, conducting a general business for the sale of dry goods, groceries, general merchandise, and millinery; that she had exclusive control of the little store where the millinery was sold, and did all the buying and selling for both stores, generally delivering all the money to him every Saturday night; that the little store was profitable; and that Gallagher died in 1898. -Plaintiff offered to prove by her that in 1889, when she (the witness) went to live with her brother, after separating from her husband, she had a contract with her brother by which she was to go in and conduct one store, and do the bookkeeping and purchasing for the other store, the one he ran, and the marking of his goods, and that her wages, whatever they were reasonably wortli more than her board, were to be by him each month held for the plaintiff, the daughter of the witness, so as to accumulate an estate for such daughter; that in pursuance of this contract she worked for her brother a little over seven years; that during this time her services were reasonably worth $300 per year over and above her board, and that during that time he advised her that he was depositing this money in the Southern Bank of the State of Georgia for the daughter, and held it as agent for the daughter in pursuance of the agreement. To this testimony the defendant objected, on the ground that the witness was not competent to prove the agreement, because Gallagher, the other party to it, was dead. The court sustained the objection and ruled out the evidence. To this ruling the plaintiff excepted. The plaintiff also offered in evidence the certificate for seven shares of stock in the Citizens Bank ■of Savannah, referred to in the testimony of the plaintiff’s mother, .and which was made out in the name of “Edward Gallagher, guardian of Mary Isabella Cochran, a minor.” To this evidence the defendant objected, on the ground that the stock was not involved in the suit, and that the certificate was irrelevant. The objection was sustained, and the plaintiff excepted. Upon the close of the evidence the court granted a nonsuit, and the plaintiff excepted.</p>

Injunction. Before Judge Felton. Bibb superior court. April 24, 1906. The plaintiff in error excepts to the granting of an interlocutory injunction against the prosecution of a suit in the city court of Macon.

Complaint for land. Before Judge Eelton. Houston superior court. August 16, 1906. Moore, as administrator of. Mary Flournoy, brought his petition .against Green, alleging: Plaintiff is the administrator of the estate of Mary Flournoy, who died in 1903.

<p>Petition for injunction. Before Judge Holden. Elbert superior court. November 24, 1906.</p>

<p>Petition lor injunction. Before Judge Iiolden. Warren superior court. June 30, 1906.</p>

Levy and claim. Before Judge Bussell. Franklin superior-court. February 16, 1906. An execution in favor of McKenzie, ordinary, for the use of named parties, against Manley as principal, and two others as securities, was levied upon two described tracts of land. Mrs. Manley, the wife of the defendant in execution, interposed a claim to both tracts.

<p>Sincé the testimony offered in behalf'of the plaintiff failed to show any negligent conduct on the part of the defendant as alleged in his petition, the court did not err in granting a nonsuit.</p>

Action on insurance policy. Before Judge Brand. Walton superior court. April 4, 1906. Edwards et al. brought suit against the Farmers Mutual Insurance Association of Georgia, on an insurance policy.

<p>Petition for injunction. Before Judge Brand. Walton superior court. December 21, 1906.</p>

<p>Petition for injunction. Before Judge Brand. Walton superior court. December 21, 1906.</p>

Equitable petition. Before Judge Eite. Murray superior court. February 20, 1906. The Owensboro Wagon Company filed its equitable petition against Elrod, alleging as follows: Plaintiff is a corporation of Kentucky. It was the holder and owner of a mortgage executed to it by Maggie Browning and W. M. Davenport on certain described 'land.

<p>1. There was sufficient evidence to authorize the jury to find in favor of the plaintiff, and the court did not err in refusing to set aside the verdict upon the general grounds contained in the motion, nor in refusing to award a nonsuit.</p> <p>O. A new trial is not demanded because of improper remarks of counsel in his argument to the jury, where it does not appear that any objection was made at the time, nor that any request was made to withdraw the case from the jury.</p> <p>S. Where the court correctly charged the law in regard to contributory negligence and mutual fault, the failure to charge, in immediate connection therewith, the rule imposing upon the plaintiff the duty ’of exercising due diligence to avoid the consequences to himself of the defendant’s negligence is not ground for a new trial, where it appears that in a subsequent portion of the charge the latter rule was distinctly stated to the jury.</p> <p>4. That a witness was permitted to answer, “I can not work as much since then [the time of the injury] as before,” is not open to the criticism that such an answer was a mere conclusion on the part of the witness.</p>

Practice in the Supreme Court. Maria L. Smith, formerly Freeman, brought an equitable .petition against T. W. Estes, T. W. Estes as administrator of Francis Freeman, and W. G. Park as administrator of Jemima Freeman, for the cancellation of a deed from the petitioner to Francis Freeman, executed September 18, 1876, and the reformation of two other deeds, one from Jemima Freeman to T. W. Estes, executed April 24, 1894, and one from W. G. Park, as administrator of Jemima…

Equitable petition. Before Judge Reagan. Butts superior court. February 20, 1906.

<p>1. A writ of error lies from the refusal of a judge of the superior court to grant leave to file an information in the nature of a writ of quo warranto.</p> <p>2. A petition for leave to file an information in the nature of quo war; ranto must be verified. Such averments therein as show the relator’s right to file an information must be positively verified, but averments concerning the occupant’s usurpation of the office may be verified on information and belief.</p> <p>3. Where the qualifications of a mayor and council of a municipality are not prescribed by statute, such officers are not ineligible for the sole reason that they paid their State and county taxes for a given year after December 20, but before execution for the taxes had been issued, without paying or tendering any interest on the taxes paid. '</p>

<p>Petition for injunction. Before Judge Mitchell. Colquitt superior court. January 26, 1907.</p> <p>Green and others, residents of Hatsfield school district of Colquitt county, by their petition for injunction against Hutchinson, tax-collector of that county, alleged, that in pursuance of the provisions of the act of the General Assembly approved August 23, 1905 (Acts 1905, p. 425), the citizens of that district, on February 27, 1906, held an election, which resulted in a vote favorable to the levy of a local tax for public schools in the district, but that the act had been held unconstitutional (Brown v. Southern By. Go., 125 Ga. 772), and therefore the election was void; that some of the school districts of the county, and especially the said district, are rural districts, "without corporations, railroads, and franchises,” and under the act in question "received no benefits by collecting taxes therefrom and to be taxed on their property without the said benefit from corporations, franchises, etc., while other sections or districts of same county, in which corporations, roads, and franchises are, receive such benefits, would be partial, unequal, and unjust to petitioners, and not an equal basis with other divisions of same county as contemplated by the laws and constitution of the State.” It was prayed that the defendant be enjoined "from issuing and further attempting to collect said taxes against petitioners for the local school for the year 1906.” It was conceded by the defendant that the election, having been held prior to the passage of the act of the General Assembly approved August 21, 1906 (Acts of 1906, p. 61), amending the act of 1905, was not affected thereby; but it was contended that inasmuch as there were no railroads, corporations, etc., in the Hats-field district, the criticism made upon the act of 1905, in the case of Brown v. Southern By. Go., supra, has no application to this case, and that the tax levy should be allowed to proceed. The court refused an injunction, and the plaintiffs excepted. ■</p>

Petition for injunction. Before Judge Pendleton. Fulton superior court. December 26, 1906. The plaintiffs, G. T. Dodd and Mrs. A. D. Warren, are the owners of certain property on Mitchell street, in Atlanta, which they leased to S. A. Ozburn and B. B. Martin, with permission to sublease the premises with certain restrictions.

<p>' Action for damages. Before Judge Kimsey. Habersham superior court. June 13, 1906.</p>

<p>• Forfeiture of bond. Before Judge Kimsey. Dawson superior •court. August 7, 1906.</p>

<p>Complaint for land. Before Judge Kimsey. Habersham superior court. July 31, 1906.</p> <p>W. W. Kytle brought an action against W. S. Kytle and others,, to recover possession of a described parcel of land and mesne profits. The deed under which the plaintiff claimed was in the following language: “This indenture, made this the eleventh day o£ January, eighteen hundred and ninety-four, between J. B. Kytle, of the county of Habersham, and W. W. Kytle, of the county of Banks, of the State aforesaid, witnesses, that the said J. B. Kytle, for and in consideration of the natural love and affection he has. for his son, W. W. Kytle, and that the said W. W. Kytle is to-support the said J. B. Kytle, hereby gives, grants, and conveys hr the said W. W. Kytle, his heirs and assigns, all that tract of land, lying in Habersham county, Georgia, known as lot No. 65 in the-twelfth district of Habersham county, containing two hundred and fifty acres, more or less, adjoining land of John Kytle on the south, Mrs. Bentley on the east, Mrs. Henderson on the north, Williams on the west, together with all the rights and privileges, thereunto belonging at my death forever in fee simple. In witness whereof the said J. B. Kytle has hereunto set his hand and seal, the day and year above written. J. B. Kytle (L.S.). Signed, sealed and delivered in the presence of: A. L. Griffin; A. ■J. Griffin, N. P. & J. P.” The defendants filed an answer, in which they admitted that they were in possession of the property ■sued for, but set up title in themselves, and denied all liability ior rent. They also alleged that they had been in possession of .the property for more than seven years, under written evidence of title, prior to the filing of the suit. The defendants amended -their answer, by alleging, that the paper referred to in the plaintiff’s abstract of title was a will, and not a deed; and that if it was a deed, it conveyed only such interest in the property as the .grantor had at the date of his death, and that prior to that time ■the grantor had conveyed the land to certain named children, such, ■conveyances bearing date December 27, 1898; that the expressed ■consideration of the deed to plaintiff was that the plaintiff was to ■•support the grantor during his life, which the plaintiff failed to do; that the only means of support of the grantor was this land, and that the defendants, with whom he resided, supported him in sickness and health and gave him all the attention that he needed during his lifetime, and when he died gave him a decent interment, the services thus rendered being worth $600, which should be paid by the plaintiff; that if the title passed to the plaintiff, the defendants were entitled to. judgment against him for that sum, with interest; and that their judgment should be made a .special lien upon the land as in the nature of purchase-money; that the plaintiff is insolvent; that the grantor died intestate, and there is no administration, and that the defendants are the heirs at law and of full age. It is alleged, in general terms, that the ■deed of the plaintiff was secured by fraud and misrepresentation. It is also alleged, that both the plaintiff and his grantor treated the conveyance under which the plaintiff now claims as of no effect. 'The prayer of the answer is, that the paper upon which the plain■tiff relies as a deed be decreed to be a will, and ineffective for the want of sufficient witnesses; that if it is a deed, it be declared to convey only such interest as the grantor owned at the date of his death; and that the defendants have judgment against the.plaintiff for the amount above referred to, with interest, and that the .■same be declared to.be a special lien upon the land.</p> <p>Pending the trial of the case, other children of the grantor intervened and asked to be made parties to the suit and be allowed to join in tbe defense already filed. An order making them parties was allowed, so far as the record discloses, without objection. At the trial the jury returned a verdict finding that: the deed relied on by the plaintiff was a- valid deed, but that he had failed to comply with his part of the contract.contained therein; and also finding in favor of the defendants for the sum of $1,031, and that this be in the nature of a lien for purchase-money upon the land sued for. A judgment was entered in accordance with this verdict. The plaintiff made a motion for a new trial, which was overruled, and he excepted.</p>

<p>Complaint. Before Judge Gober. Milton superior court. April 23, 1906.</p>

<p>Action for damages. Before Judge Fite. Catoosa superior court. February 9, 1906.</p>

<p>When a bill of exceptions is tendered to a judge, in which the only assignment of error is that the judge erred in directing a verdict, and with the bill of exceptions is tendered a brief of the evidence, to be approved by the judge and made a part of the record in the case and. transmitted to the Supreme Court as such, and the judge declines to certify the bill of exceptions, and calls attention of counsel to the fact that the brief of evidence is incorrect, and directs that the same shall be corrected by the stenographer’s report of the evidence, and counsel delays tendering the corrected brief of evidence for fifty-four days after attention has been called by the judge to tile fact that the brief as originally presented was not correct, the writ of error will be dismissed, unless it appears that the delay was occasioned solely by providential cause or imperative necessity; and that the cause of the delay was of the character indicated must appear from the certificate of the judge. When the certificate of the judge is silent as to what was. the cause of the delay, the Supreme Court will not consider evidence, adduced before it to show the reason for the delay.</p>

<p>Petition for alimony. Before Judge Fite. Gordon superior court. September 26, 1906. v</p>

<p>1. When, in the trial of an action against a railroad company, it appears that the plaintiff, who was a passenger, was pushed by the conductor from a train which was in motion, though moving slowly, at a station at which he did not desire to alight, and, as a result, he sustained injury, an instruction to the jury on the subject of punitive damages was not inappropriate.</p> <p>2. The evidence authorized the verdict, and no sufficient reason appears for reversing the judgment.</p>

<p>Certiorari. Before Judge Lewis. Laurens superior court. FebTuary 1, 1906.</p> <p>The Ross-Mehan Foundry Company sued the Dublin Hame Works on account, for the purchase-price of certain hame hooks, rings, loops, staples, etc., alleged to have been sold and delivered by plaintiff to defendant, and of the aggregate value, at the-prices named, of $533.45. Defendant filed several pleas, among them being the breach of an implied warranty, in that the articles sold were not merchantable and reasonably suited to the use intended, because they were not made of sound, malleable iron, but were brittie and unsound, were not smoothly manufactured, and were full of flaws, which defects were not discoverable until after the articles had been used in manufacturing hames. Other pleas were as follows: “6. . . Defendant further says . . that a large part of [the articles in question] were manufactured by this defendant into hames at a great expense to this defendant, but when said hames were so manufactured they were not marketable, on account of said defective iron, and many of them were returned to' this defendant, and many of them this defendant was unable to-sell, on account of said defective condition, — that this defendant • has been put to a large expense in said manufacture, to wit, the sum of five hundred dollars, which this defendant pleads as a recoupment against plaintiff’s demand. 7. Defendant further says, that by reason of said defective iron this defendant’s reputation as a manufacturer has been damaged and the sale of its manufactured product injured, to the damage of this defendant in the sum of five hundred dollars; which this defendant pleads as a recoupment against plaintiff’s demand.” Plaintiff demurred to all the pleas, the grounds of demurrer to the 6th and 7th paragraphs of the answer, quoted above, being, that the damages therein alleged were consequential, and too remote and uncertain to be recovered; and that the 6th paragraph of the answer did not definitely allege the number and value of the hames alleged to have been returned to defendant by its customers. The demurrer was sustained as to the 6th and 7th paragraphs of the answer, and overruled as to the other pleas. Defendant excepted pendente lite to the ruling of the court in so far as it sustained the demurrer. .Upon the trial a verdict was rendered for the plaintiff for $400 and interest. Defendant made a motion for a new trial, which was dismissed because no brief of the evidence was presented to the judge for approval within the time prescribed by the order of the court. Defendant sued out a-bill of - exceptions, assigning error upon the dismissal of the motion for a new trial, and upon the exceptions pendente lite.</p>

Equitable petitiou. Before Judge Lewis. Putnam superior court. July 9, 1906. Perry and others, as administrators of Mark O. Perry, brought their action against Tweedy, as administrator of Augusta Perry, alleging as follows: On February 18, 1893, Mark C. Perry obtained a policy of insurance upon his life to be issued by the Mutual Life Insurance Company of New York. By its terms it was made payable to his wife, Augusta Perry, her executors, administrators, or assigns.

<p>Processioning. Before Judge Lewis. Wilkinson superior court. July 9, 1906.</p>

Complaint. Before Judge Lewis. Morgan superior court. July -5, 1906. Allen & Barrow brought suit against Charles E. Mitchem, based on an open account for goods furnished to the defendant.

<p>Quo warranto. Before Judge Spence. Dougherty superior-court. February 15, 1907.</p>

<p>Illegality. Before Judge Cann. Chatham superior court. April 11, 1906..</p>

Complaint. Before Judge Brand. Gwinnett superior court. May 4, 1906. On May 11, 1904, Mrs. Stocking executed to Curtis a series of promissory notes, falling due monthly thereafter, the last note being payable April 15, 1910. These notes were indorsed to Moury.

Equitable petition. Before Judge Wright. Floyd superior court. February 1, 1906.

Petition for injunction and receiver. Before Judge Wright. Eloyd-superior court. October 27, 1906.

<p>Petition for alimony. Before Judge Wright. Floyd superior court. January 4, 1907.</p>

<p>Action for damages. Before Judge Bartlett. Haralson superior ■court. February 12, 1906.</p>

<p>'Petition for incorporation of town. Before Judge Reagan. Up-son superior court. June 26, 1906.</p> <p>Mallory and others filed their petition to the superior court of Upson county for the incorporation of the town of Crest, as prowided in the Political Code, §685 et seq. The petition alleges, that 'they are “qualified voters and male inhabitants of the town of Crestthat they have “given due notice of time of holding election in said town of Crest on the question of incorporation, and also of “their intention to apply for the issuing of a certificate chartering .said town,” in the manner required by law, and that on June 2, 1906, the election so advertised was held and resulted in twenty “votes “for incorporation,” and none against it; and that the same was duly certified by the managers of the election. Mangham and others filed a caveat to the petition, on the ground that not more “than fifteen male persons of legal age resided within the limits of the town; and that several of the petitioners were not qualified voters of the town. The petitioners demurred to the caveat, on the .grounds, among others, that “the court has no jurisdiction to hear and determine the question made by said caveat, there being no law providing for or authorizing any defense or objections to be made,” ■and that the caveat sets up no legal reason why the charter should not be granted. At the hearing of the petition, the court dismissed the caveat, and passed an order directing the clerk of the superior court to issue a certificate of incorporation for the town of Crest. The caveators excepted. The defendants in error moved to dismiss the writ of error, on the ground that “there is no law authorizing a writ of error from the judgment in this case.”</p>

<p>Injunction. Before Judge Felton. Bibb superior court. April 2G, 1906.</p>

<p>1. “A father, or, if the father be dead, a mother, shall have a right of action against any person who sells or furnishes spirituous liquors to his or her son under age, for his own use, and without his or her permission.”</p> <p>2. In a suit brought upon a right of action of the character indicated in the preceding note, the plaintiff may recover both general and special damages.</p> <p>3. When, in a petition setting forth a right of action of the character above referred to, the petition lays damages in a stated amount and enumerates certain items of special damage, which, in the aggregate,, amount to the exact sum sued for, the recovery of the plaintiif must be limited to the special damages alleged, and there can be no recovery for general damages.-</p>

Action for damages. Before Judge Gober. Eannin superior court. May 28, 1906. The plaintiff alleged, that he attempted to board defendant’s train as a passenger, at McCay’s, a station on its railroad in the State of Tennessee; that he attempted to get in the passenger-car .as quickly as it was possible to do so after the train stopped. “He succeeded in getting on the second step of said passenger-car, and the train'started very suddenly and very fast.

<p>1. When a petition alleged, that the plaintiff sustained injury by reason of sparks being emitted from a locomotive of the defendant, and that the damage “ was • caused by the carelessness and negligence of the defendant’s agents, servants, and employees,” the plaintiff could rely for recovery upon the fact that the engine in question had been negligently handled.</p> <p>2. The charge of the judge in reference to the measure of damages was not erroneous for any reason assigned.</p> <p>3. The evidence authorized the verdict, and no sufficient reason appears for reversing the judgment.</p>

<p>Motion to reinstate motion for new trial. Before Judge Bartlett. Polk superior court. April 4, 1906.</p>

Equitable petition. Before Judge Reagan. Pike superior court. April 4, 1906. Collier brought an equitable petition against Spear, constable. G-. W. Allen and his wife, and James T. Warthen as administrator of G. H. Warthen. The petition set forth the following state of facts: G. W. Allen brought suit, in a justice’s court, against Collier.

<p>The answer of the defendant being, in effect, an application for a decree of specific performance of a parol contract for the sale of land, and the facts alleged as a part performance of the contract not being sufficient to take the same without the operation of the statute of frauds, there was no error in sustaining the oral motion to strike the answer.</p>

Injunction. Before Judge Rawlings. Screven superior court. January 28, 1907. E. K. Overstreet brought an equitable action against Charles-Brigham and C. P. Baekley. The substance of the petition was as-follows: In August, 1905, Brigham sold and conveyed, by warranty deed, certain land to the Southern States Phosphate and Fertilizer Company, which company subsequently rented the land to Brigham for the year 1906.

Complaint. Before Judge Brand. Franklin superior court. June 8, 1906. This was an action in the name of Franklin county against Crow, to recover the sum of $1740.50, besides interest.

<p>Complaint. Before Judge Kimsey. Habersham superior court. March 7, 1906.</p> <p>The suit was brought to recover $200 and interest, by reason of the following alleged facts: The defendant represented to the plaintiff that one Keller desired to buy plaintiff’s farm on credit,, and that Keller was worth from twenty to thirty thousand dollars. Relying on such, representations the plaintiff agreed to sell the farm for $2,000, executed a bond for title, and accepted Keller’s notes for the price. He delivered one of the notes,.for $200, to the defendant, on demand, as a payment of commission -for effecting the sale, having first indorsed it. The defendant negotiated it, and the plaintiff had to take it up on his liability as indorser; it having turned out that the representations as to Keller were not true, and that he was insolvent. The defendant promised to repay to the plaintiff the amount he had been forced to pay out, but failed 'to do so. The plaintiff obtained a verdict for $175, with interest and costs; and the defendant’s motion for a new trial, on the general grounds, was overruled. The headnote states the other material facts.</p>

<p>Illegality. Before Judge G-ober. Cobb superior court. February 13, 1906.</p>

Action for damages. Before Judge Little. Muscogee superior court. March 24, 1906. This was an action by the plaintiff against a municipal corporation, for damages alleged to have resulted from the fall of a shed constructed over the sidewalk in front of the house and place of business of the plaintiff’s husband. A statement of facts will be found in the report of the case when it was before this court on another occasion. City of Columbus v. Anglin, 120 Ga. 785.

<p>1. Within the meaning and purpose of the act of December 17, 1901 (Acts 1901, p. 63), as amended by the act of August 7, 1903 (Acts 1903, p. 91), the relation of employer and employee may exist before the person contracting to render the service has actually begun the performance of the same.</p> <p>2. The words “parol contract partly performed,” in the amended act, embrace a parol contract partly performed by the employer, as well as such a contract partly performed by the employee.</p> <p>3. The petition was not subject to the special demurrers interposed thereto.</p>

<p>■ Jt appearing, from the allegations of the petition, that the injuries sustained by the plaintiff were the result of a failure upon her part to exercise due care to avoid the consequences to herself of the alleged negligence of the railroad company, the general demurrer urged upon this ground should have been sustained; and the court erred in overruling the same.</p>

<p>Petition for mandamus. Before Judge Brand. Gwinnett superior court. July 13, 1906.</p>

<p>Complaint for land. Before Judge Reagan. Pike superior -court. April 4, 1906.</p>

Complaint. Before Judge Little. Muscogee superior court. April 21, 1906. Brinson brought suit against the Columbus Show Case Company upon an account. The bill of particulars attached to the petition is as follows: 1905. Eeby. 4. To 52871 ft. oak boards, at $18.00 per m., $951.67. Eeby. 6. By Cash cr., $250.00. Balance due, $701.67. The defendant filed an answer denying all liability.

<p>Action on insurance policy. Before Judge Little. Muscogee superior court. June 23, 1906.</p> <p>On May 17, 1904, the Fidelity Mutual Life Insurance Company issued a policy of insurance upon the life of Glenn H. Ilipp, recited to be of Macon, Bibb County, Georgia. It was made payable to his mother, or, if he survived her, to his administrators, executors, or assigns. It was declared that the contract was made for' the term of six years, and renewable thereafter at the option of the insured, in consideration of the written application and the payment in advance of $67.40 upon the delivery of the policy, and the same, amount thereafter at the company’s head office in the City of Philadelphia upon the 17th day of May in every year until the premiums for five years had been paid, and thereafter of ■$100.50 each year during the continuance of the contract. One of the conditions of the policy provided, that the contract should not be operative or binding until the actual payment of the initial premium and delivery of the policy during the lifetime and good, health of the insured; and that “if any premium be not paid when due, or if any obligation given for premium be dishonored or not paid when due, this policy shall be void until duly reinstated during the lifetime and good health of the insured. . . Or if any obligation given for premium be dishonored or not paid when due,, without grace, this policy shall be absolutely .void, except as provided in the non-forfeiture clause. . . it can only be revived if the insured be in good health upon presentation of a reinstatement certificate signed by said insured, and upon the approval of the same by the President or Vice-President and Medical Director, but not otherwise.” Attached to the policy, and forming ' a part thereof, was what was termed, “An ordinary life elective-life rider.” One of the provisions of this was as follows: “That any time upon acceptance of due and satisfactory proof of the total and permanent blindness or deafness of the insured thereunder, or that said insured has become totally and permanently incapacitated either by accident or bodily or mental disorder, the said insured, in lieu of all other benefits and advantages accruing under said policy or under its non-forfeiture provisions as modified above,, shall be entitled to either of the following options: (A) From the date of said proof the premiums payable, if any, for the remaining years shall cease, or be remitted, during the continuance of the incapacity, and the insurance shall be payable as an endowment at the age of eighty, or at death if prior, unless extended insurance shall have previously been put in force jmder the non-forfeiture provisions as set forth in the first section hereof.” The other option allowed was the exchange of the policy for a life annuity. The insured did not pay any premium in cash, but the policy was delivered to him together with a receipt for such premium, and notes were given by him therefor (except that there was a slight inaccuracy in the amount). They were made payable to the maker’s own order and indorsed by him, and were payable monthly at Macon, Georgia, the first falling due on June 15, 1904. These notes contained the following clause: “If this note is not paid at maturity, policy No. 155254 issued by the Fidelity Mutual Life Insurance Co. of Philadelphia, for which it is given, shall be ipso facto null and void, without notice to the maker hereof, and “without any act on the part of the company, and shall remain so until restored as provided by its terms.” Appended to the signature to the notes was the following: “C/o. M. & B. By.” The receipt given to the insured provided that “It is understood and -agreed that a protested check or past-due note or obligation of any kind is not payment, and that any obligation given in exchange for this receipt, when dishonored or not paid at maturity, shall render this receipt and policy absolutely void.” When the notes were .given by the insured for the premium on the policy, the number of the policy was not written in the blank space provided in the form for such number. It was inserted in pencil by one of the company’s agents at its head office at the time they were received and ■entered of record.</p> <p>The insured was taken sick about the last of May or first of June, with typhoid fever, and died on August 7, 1904, at the home ■of his brother in Greenville, where he had been staying during his sickness. His mother died before he did. On June 15, when the first note fell due, he was seriously sick, and so remained until his death. He was unable during that time to attend to business. Before his sickness he was working under one McLaughlin, who was the agent at Macon for the Macon & Birmingham Bailroad Company. The note due June 15 was sent to the Exchange Bank of Macon for collection. It was presented at the office of the Macon <& Birmingham Bailroad Company, the place where the Insured was employed, but he was not there at the time, on account of his ■sickness. It was not paid. The agent of the railroad company wrote to the insur.ed on the afternoon of June 15, informing him ■of the presentation of the note and asking if the insured desired it to be paid, and if so that he send an order on the paymaster for the necessary amount. Such an order was sent and received by the agent some four or five days later. He thereupon went to the local agent of the insurance company, and was informed that the note-had been returned to the company at Philadelphia. He also inquired of the clerk in charge of the collection department of the Exchange Bank if the latter had on hand for collection -a note ■of the insured; to which the clerk replied that the note had been returned. The railroad agent used the expression, “I made this ■offer to pay the note the same day that I received order from Mr. Hipp;” but it did not appear that there was any actual offer or tender. At another time the same witness said, “The order was sent to me for the purpose of getting an advance on salary from C. T. Chappell, paymaster, with which to pay note due for premium on a policy issued by the Mutual Life Insurance Company of Philadelphia. . . I was not ready to pay the note, for the reason that it would have been at first necessary for me to arrange with the paymaster, Chappell, for an advance of salary, if any due Mr. Hipp, my first inquiry being for the purpose of locating the note if still in bank or in possession of the local .agent of the Fidelity Mutual Life Insurance Company at Macon, •G-a. Not finding the note, no further effort was made to pay it.” He also said, “I do not remember how this paper got out of my possession, but I think I gave it to Mr. Henderson [the local agent], but I can not recall any conversation that took place at that time.”</p> <p>About the 16th or 18th of June the insurance company’s agent asked the agent of the railroad for the policy, saying that the note issued for the premium had gone to protest. On June 15 the bank closed at the usual hour of two p. m. The note was returned to the company unpaid on June 17. The brother of the insured testified, that he had no knowledge of the maturity of the note until he received a written message from a friend at three ■o’clock p. m. on June 15, advising him of such maturity, and that the note was in the Exchange Bank; that as soon as he received the notice he called at the bank, at about three o’clock p. m., to pay the note for his brother, but found it closed; that he then went to the office of the local agent of the company, but also found it closed; that he was compelled to return to his home at Griffin ■that night, but again went to Macon on the morning of June 17, .and went to the office of the company’s agent and stated to the agent that he had come to take up the note which he understood his brother had for some insurance; that the agent stated that the note had been returned to the company, and that it would be impossible for him to get it; that the witness asked him-if he could not give a receipt and accept the money1, but the agent said that he could not do so, and that the company knew of the sickness of the insured and had given instructions that the note was lo be returned promptly on non-payment. It appeared that the witness himself was a life-insurance agent. Among other things he said, “I merely took the matter up for my brother from the fact that Lfiearned that the note was due on that day. . . I knew that my brother held' a policy, but I did not know anything' about when the notes became due, or anything about the premium, anything like that.” He testified that he did not tender the money formally to the agent, but informed him that he did not come for any other purpose.</p> <p>On June 18, the agent of the company at Atlanta wrote to the' insured that his note due June 15 was not paid at maturity, “and the policy by its terms is void;” that the non-payment was evidently an oversight, and that the agent trusted that the insured would at once sign and forward to the office the application for revival enclosed, together with the amount of the note. Accompanying this letter was a blank form of application, reciting the non-payment of the note, that the policy by its terms became void, and that the insured desired to. revive the policy and warranted that he was in good health and free from any ailment or complaint. No answer appears to have been made to this. The court struck certain allegations in the pleading, and the plaintiff; excepted pendente lite. At the close of the evidence the court directed a verdict in favor of the defendant. The plaintiff excepted.</p>

<p>Where a fact is conceded to be true and the parties are not at issue with reference thereto, it is not reversible error for the judge, while instructing the jury, to intimate or express an opinion that such fact has been proved.</p> <p>2. If a railroad company, in the construction of its road-bed, intentionally obstructs a natural drain, thereby causing water to accumulate and form a stagnant pond, amounting to a nuisance, near the residence of another, and producing illness among the members of the family of such person, the railroad company will be liable to him for damages arising therefrom. The plaintiff, by his pleadings and evidence,' having presented a ease proper to be submitted to the jury under the foregoing theory, it is no cause for the grant of a new trial that the judge charged the jury: “It [the railroad] is not bound to guard against every, possible contingency which may arise and which may result to the injury of the property or the health of others, but it is bound to so-construct and keep and maintain its culvert that the accumulation of water from rains or other causes, which in the usual course of events is likely to occur, may not cause ponds or other formations of water such as will endanger the health or life of the adjoining land owners.”</p> <p>3. The verdict is not excessive, and is supported by the evidence; and no sufficient cause is shown for the reversal of the judgment.</p>

<p>Complaint. Before Judge' Little. Marion superior court. June 2, 1906.</p>

Complaint. Before E. T. Hickey, judge pro hac vice. Webster superior court. January 8, 1906. This was a suit by the National Bank of Commerce against D. B. Harrell, to recover an amount alleged to be due on a promissory note executed by Harrell and payable to the order of the Americus Investment Company, at the Bank of Americus, for $2,500. Pending the suit Harrell died, and his administrator was made a party defendant in his stead.

<p>Complaint. Before Jesse W. Walters, judge pro bae vice. Mitchell superior court. April 6, 1906. - ■</p> <p>Im 1900 J. L. Hand brought an action for land against C. N. Nesmith. There was a verdict for the plaintiff. Defendant’s motion for a new trial being overruled, he excepted. Plaintiff claimed title by prescription under color, and on the trial introduced warranty deeds to the premises in dispute as follows: From J ames G-. Taylor to Tapley Wade, dated December 10, 1881, and from Tapley Wáde to plaintiff, dated October 6, 1893; and submitted, evidence sufficient to authorize a finding that Wade was in actual,, adverse possession of the land under the deed from Taylor from its date until the former sold to plaintiff in 1893, and that plaintiff held like possession from the last-named date until January 1, 1899, when defendant's possession began. Defendant claimed that his father, William Nesmith, owned the land in 1870; and to support such claim put in the following deeds thereto: From William McKinley to W. T. Swayne, dated September 1, 1851; from C. W. Swayne to John T. Allen, dated January 1, 1853; from John T. Allen to John G. Sapp, dated September 1, 1853;. from John G. Sapp to Y. Godwin, dated September 9, 1865, and from Y. Godwin to William Nesmith, dated October 15, 1870. Defendant also put in evidence a certified copy of homestead proceedings, showing that William Nesmith in 1870 had the land set apart as a homestead for the benefit of his wife and children. It was further shown, in behalf of defendant, that William Nesmith died in 1891, leaving a widow and the defendant and five other children as his heirs at-law, and that the widow, who is still in life, and the other five children, all of whom were of age, executed to defendant a deed to the land, in 1898.</p>

<p>Complaint. Before Judge Littlejohn. Lee superior court. June 21, 1906.</p>

injunction. Before Judge Spence. Worth superior court. ■October 22, 1906. John G. McPhaul filed a petition against Claude Payton, C. E. Hay, and J. D. Bridges, alleging, that on July 7, 1904, W. I).

Complaint for land. Before Judge Parker. Clay superior court. March 20, 1906. Jennie A. Crawford brought suit against Mrs. C. E. Garrett and K. J. Todd for a certain house and lot and mesne profits.

<p>Attachment for contempt. Before Judge Martin. iWilcox superior court. January 29, 1906.</p>

<p>From Berrien superior court. Motion to dismiss.</p>

Equitable petition. Before Judge I-Iolden. Wilkes superior •court. May 28, 1906.

Equitable petition. Before Judge Holden. Elbert superior court. July 10, 1906. Anderson Hester made a deed in the form of an ordinary warranty deed to Mrs. Lavonia Gairdner, guardian. It was dated December 6, 1900, and expressed a consideration of $243.40.

<p>Equitable petition. Before Judge Kimsey. Rabun superior-court. August 31, 1906.</p> <p>Litigation about the title and possession of the land involved in this case arose in 1884, between Bleckley and Cannon on one side and White and Young on the other. See 92 Ga. 164; 98 Ga. 594; 105 Ga. 173; 114 Ga. 155. In August, 1896, a verdict and decree were rendered, that Bleckley et al. were entitled to possession 'as against White et al., and that the latter be enjoined from interfering with such possession and from trespassing on the land. Bleckley et al. went into possession, and in 1902 they conveyed the land to Charters, who in 1904 conveyed it to the North Georgia Electric Company. 'This company claims to have been in exclusive and uninterrupted possession of the land save for a short time in the autumn of 1905, when its tenant removed temporarily on account of bad repair of the house. About this time White ■executed a deed of conveyance of the land to Magid, who made a ■quitclaim deed to Prentiss, and also procured one Demore to go into possession. A warrant having been sued out, under which Demore was arrested and bound over, the Electric Company caused ■Crisson, Poore, and Lockeby to go into possession and begin work on the house. Demore sued out forcible-detainer proceedings against the three last named; whereupon a petition was filed in behalf of the Electric Company and these three as its agents, showing the foregoing facts, and praying: for injunction against further trespassing or taking possession by White, Magid, Demore, and Prentiss, and against further prosecution of the forcible-detainer proceedings; for cancellation of the deeds from White to Magid ■and from Magid to Prentiss; that the defendants be attached for ■contempt in violating the injunction of August, 1906; for decree vesting the title in the Electric Company; and for general relief. ’The defendants answered, and interposed demurrers setting up misjoinder of parties and causes of action, and that the petition was multifarious. An injunction was granted, and White and Magid were held to be in contempt. The defendants excepted.</p>

<p>Where one purchases a certain piece of property against which there are-two recorded mortgages, and pays off the senior mortgage out of the purchase-money, and it is cancelled, equity will not, in the absence of an agreement between the parties to that effect, subrogate him to the rights of the senior mortgagee, as against the other incumbrancer,, whose lien was subject to the senior mortgage but prior to the purchase.</p>

<p>1. Whether the act of a passenger on a railroad train in leaving his seat and going to the door or upon the platform of the coach, while the train is in motion and before it comes to a full stop, is such negligence as would defeat a recovery for an injury resulting from the negligence of the company in operating its train is a question for the jury to determine, from all the facts and circumstances of the particular case under consideration; and in the determination of this question the jury are authorized to take into consideration the age and physical condition of the passenger, the speed of the train, the reason of the passenger for leaving his seat and going to the door or upon the platform, the purpose to be accomplished, and all other attendant facts and circumstances as disclosed by the ■ evidence. Augusta Southern R. Oo. v. Snider, 118 Ga. 146, and eit.; Gotehett v. Savannah Ry. Go., 84 Ga. 687. See also Parris v. A. K. & N. Ry. Go., ante, 434.</p> <p>2. The petition set forth a cause of action, the evidence authorized the verdict, the amount found as damages was not excessive, and no sufficient reason appears for reversing the judgment.</p>

<p>Equitable petition. Before Judge Mitchell. Thomas superior court. February 12, 1906.</p>

<p>Claim. Before Judge Mitchell. Lowndes superior court. •June 1, 1906.</p>

<p>1. A street-railway company is liable for a tort committed by its conductor in the prosecution and within the scope of its business, whether by negligence or wilfully.</p> <p>2. Where a petition alleged, that a conductor on the car of a street-railway company, while engaged in the prosecution and within the scope, of his business in collecting fares, failed and refused to give a passenger correct change, and, upon request therefor, drew a pistol and fired at the passenger; but that the ball missed the passenger and struck a woman passing on the public street through which the car was running, causing her death; and that the plaintiffs were the husband and children of the decedent, the allegations set out a cause of action against the company, and the petition was not demurrable.</p> <p>3. Allegations that the company' knowingly' placed in charge of one of its passenger-ears a conductor of bad character, who was drunk and armed with a pistol, and that a homicide occurred in the manner indicated in the preceding note, were not demurrable.</p>

Petition for injunction. Before Judge Kimsey. Eabun superior court. September 1, 1906. Plaintiff and defendants claim title to certain trees, by virtue . of deeds from common grantors. The deeds of the defendants are of prior date, and were duly recorded before the second conveyance by the common grantor, under which the plaintiff claims title.

Action for damages. Before Judge Little. Chattahoochee superior court. June '4, 1906. Gale Scott Baldwin brought an action against the Seaboard Air-Line Railway, to recover damages. The petition made the following allegations: In September, 1905, the plaintiff purchased from the defendant, in the City of Albany, Ga., a ticket entitling him to ride on its passenger train from that city to Columbus, Ga.

<p>Indictment for murder. Before Judge Kawlings. Washington superior court. April 13, 1907.</p> <p>The accused was charged with the offense of murder, lie made ■a motion to continue the ease. The showing for the continuance was made in the name of counsel appointed by the court to defend ihe accused. In the motion it was stated, that Messrs. G. H. Howard and J. L. Kent had been appointed as counsel for the accused late Monday afternoon; that the case was called for trial Tuesday, and that they had not had sufficient time to prepare the case for trial or to confer with the witnesses; that the indictment was not returned until Monday afternoon, and the accused was not arrested until Saturday morning preceding the convening of ihe court; that from investigation made, the evidence would develop that the deceased was billed at a negro party, where more than seventy-five persons had assembled; that the killing occurred at night, outside the house, and that many shots were fired by different parties, and that counsel did not know and could not, during the present session of court, interview those who were present, to ascertain who saw the shooting; that many saw it, and while all of the witnesses were not known, they will swear, if time is given to confer with them to ascertain who they are, that the accused did not fire the fatal shot; that it was impossible for them, under the circumstances, to do justice to their client, or to- see that he had fair trial, such as is guaranteed under the constitution; that many of the witnesses the accused did not know, but according to the best of his information some of them were living in the county adjoining that in which the indictment was pending; that when counsel were appointed, they at once issued subpoenas for a large number of witnesses, the names of whom were furnished by the accused, some of whom lived in other counties, and it-would be impossible for the officers to summon these witnesses during the present term of court; that if such witnesses were produced the accused would be able to prove that the killing was not done by him but by another; that counsel used all diligence possible under the circumstances; and that the motion was not made for delay, but in order to secure the testimony of these witnesses at the next term. The court overruled the motion to continue, appointed a bailiff to assist counsel in procuring the witnesses desired, and passed the case until Thursday afternoon at two o’clock. Error is assigned upon this ruling.</p> <p>When the case was called on Thursday afternoon another motion was made to' continue the case, upon the grounds stated in the former motion, and upon the additional facts appearing in the statement made to the court by Mr. Kent, of counsel for the accused. The substance of Mr. Kent’s statement was, that the bailiff had been endeavoring to find the witnesses, but was unable to do so; that they had not been able to obtain the witnesses for him; that the court had also appointed other counsel besides himself and Mr. Howard, and these had been excused by the court, and that the case should not be pressed to trial until other counsel were appointed in their place; that a number of the witnesses to the transaction lived in Johnson, Jefferson, and Washington counties, and possibly other counties in the State; that counsel had been unable to obtain these witnesses so as to interview them; that some of the witnesses for whom subpoenas had been issued the officer had not been able to find; that the bailiff made every effort to get these witnesses, but now gave the information that they were not there; that counsel had learned that one of the witnesses possibly did not get the subpoena, and that one lived in Jefferson county ver3>- near to the scene of the occurrence, and the accused informed counsel that he could prove by this witness that another man fired the fatal shot; that counsel did not know whether this witness could be brought at that term of the court, but that he had not been brought.. The court overruled the motion to continue, and this ruling is assigned as error. The trial resulted in a verdict finding the accused guilty, and he was sentenced to death. The accused filed a motion for a new trial, which was overruled, and the accused excepted.</p>

<p>Equitable petition. Before Judge Rawlings. Warren superior court. September 1, 1905.</p> <p>McGregor, as receiver of'the Bank of Warrenton, brought suit against Battle, alleging that on February 17, 1902, and prior thereto, and especially on February 14, the bank was insolvent or in contemplation of insolvency; and while so insolvent, the bank; in collusion with the defendant, delivered to him, and he took therefrom, the sum of seven thousand dollars in cash, which amount was received by him under the following circumstances: On February 11, he became a stockholder in the bank, having purchased seventy shares of its capital stock of the par value of one hundred dollars, and certificates of stock were duly issued and delivered to him. On February 13, in collusion with Allen, who was his brother-in-law and president of the bank, defendant delivered to Allen the seventy shares of stock, and Allen directed the cashier to pay to defendant seven thousand dollars of the cash of the bank, or to place the same to the credit of the defendant as a depositor; and on February 14, the defendant, with a full knowledge of the insolvency of the bank, drew said seven thousand dollars in cash therefrom. The purpose of Allen was to give the defendant a preference over the other creditors of the bank; the liabilities of the bank being, at that time, sixty thousand dollars, while its assets did not exceed ten thousand dollars. At that time the bank was absolutely insolvent and known to be so by the defendant. Some of the depositors made inquiries with a view to withdrawing their deposits, when the defendant, in collusion with Allen, made a public display of the seven thousand dollars, for the purpose of deceiving them, and they, being so deceived, allowed their deposits to remain 'in the bank. The assets in the hands of the plaintiff, as receiver, are not sufficient to satisfy all of the liabilities of the bank, and it is therefore necessary to recover from the defendant the amount he fraudulently received. It is charged that the payment to Battle by the bank was for the purpose of giving Battle a preference over the other creditors of the bank, and was done with the intent to delay, hinder, and defraud such other creditors; and that this intent was known to Battle. The prayer was that Battle be required to receive the certificates of stock, and that plaintiff have a judgment for the sum of seven thousand dollars, with interest from February 14, 1902.</p> <p>The defendant filed an answer alleging as follows: He was never a stockholder in the bank; he had no knowledge whatever, until within a few daj^s before its failure, that it was insolvent or in an embarrassed condition; a week.or ten days before the failure, at the solicitation of the cashier, who assured him that the bank was solvent and its stoelc was a good investment, he agreed, •to make some investigation as to the bank’s affairs with a view to taking stock therein, and, .making a casual investigation, he ascertained that three named parties owed the bank large sums, but there was other large indebtedness to the bank that he did not know of. In ignorance of the indebtedness, other than that of the three persons above referred to, he agreed to take fifteen thousand dollars of stock in the event that one of such persons paid his entire indebtedness and the, others reduced theirs to a safe amount. These negotiations began about February 1; and on February 10, he agreed to take the stock on the conditions referred to. He made arrangements by which he obtained the money, and, on February 12, deposited in the bank seven thousand dollars which he expected to use to pay for the stock. On February 14, he happened to be in the bank, when the cashier,-who had been very officious in endeavoring to induce him to take the stock, without any request from him, handed him through the window a paper, which, to his surprise, he discovered was a certificate for seven thousand dollars of stock. He then stated to the cashier that he was not to take any of the stock except upon certain conditions, and asked the cashier where was Mr. Allen, the president. On being informed that Mr. Allen was in his office in the rear of the bank, he immediately took the certificate to Allen and asked him if the conditions on which he was to take the stock had been complied with; and on being informed that they had not, defendant at once told Allen that he could not take the stock until these conditions had been complied with, and left the certificate of stock with Allen. It was immediately after this that the defendant drew out his money which was on deposit in the bank. It was not placed there in payment for stock, and was not passed to the stock account with the defendant’s knowledge and consent. Allen agreed to release the defendant from his contract for the stock, and in pursuance of this agreement paid him the money which he had deposited.</p> <p>The trial resulted in a verdict for the defendant; and the plaintiff made a motion for a new trial, which being overruled, he excepted.</p>

Petition for injunction. Before Judge Kimsey. Hall superior' court. December 4, 1906. The board of commissioners of roads and revenues of the County of Hall was created by act of the General Assembly, approved December 23, 1886. Acts 1886, p. 268. It was provided that the board should consist of three members, citizens of' Hall County, to be elected by the grand jury, and authority was.. conferred upon the board to deal with county matters.

. Complaint. Before Judge Gober. Cobb superior court. January 16, 1906. Zenovitch brought suit against Mrs. Glenn on a promissory note, dated. October 21, 1902, for the principal sum of $300.

Action for damages. Before Judge Eeagan. Taylor superior •court. July 28, 1906. Mrs. Martha Hunter brought suit against the Central of Georgia Bailway Compaq, alleging, that the defendant was a corporation operating a line of Tailroads in the County of Taylor, and had damaged her in the sum of ten thousand dollars.

<p>Action for damages. Before Judge Lewis. Greene superior court. July 21, 1906.</p>

Arbitration and award. Before Judge Wright. Early superior ■court. April 21, 1906. The Proctor & Gamble Company, of Cincinnati, Ohio, a corporation, sued the Blakely Oil & Fertilizer Company, a corporation of Blakely, Ga., to recover the sum of $1,732.38, and interest thereon from May 17, 1903.

<p>1. An owner of land sold at public auction under a power of sale in a security deed has a right to come into equity whenever it appears that the purchaser made untrue representations whereby other persons were prevented from bidding, and by which the land was obtained at an undervalue.</p> <p>2. Where sueli a purchaser assumed to act as agent, or sustained a confidential relation to tlie owner of tlxe laixd, equity will impress, for the latter’s benefit, a constructive trust on tlxe land, on tender of the purchase-money.</p> <p>3. If, lxowevex-, such a purchaser sxxstained no vicax-ious or confidential relation to tlxe owner of the land, nor by his condxxct in the pxxreliase of the land created such relation, lxis fraud, though affox-ding the owner the right to cancel the sale, will not make him a trustee ex maleficio, so as to exxtitle the owner to a recovery of the land without disaffirming the sale.</p>

<p>Action for damages. Before Judge Bartlett. Douglas superior court. May IS, 1906.</p>

Action for damages. Before Judge Little. Muscogee superior court. March 9, 1906. ' . Woolfolk brought suit to recover the value of a dog alleged to have been wilfully and wantonly killed by the running of a street-car on defendant’s line of road.

Action for damages. Before Judge Littlejohn. Macon superior court. May 18, 1906. Brown sued the railway company, alleging that he boarded the train of the defendant at Fort Yalley for the purpose of going to Smithville. When the conductor approached he handed him a mileage book, and was informed by the conductor that the mileage in the book was not sufficient to take him to Smithville.

Action for money had and received. Before Judge Littlejohn. Stewart superior court. July 2, 1906.

<p>Application for alimony. Before Judge Mitchell. Berrien superior court. November 2, 1906.</p>

.Application for alimony. Before Judge Martin. Pulaski superior court. June 30, 1906. Mrs. Mary Coley brought suit for temporary and permanent alimony against her husband, B. B. J. Coley, alleging that her husband had driven her away from home without cause; that they were living in a bona fide state of separation; and that she had no means of support for herself and their minor children, except to seek employment as a domestic servant.

<p>Indictment for murder. Before Judge Parker. Grady superior court. April 16, 1907.</p>

<p>The Court of Appeals certified to the Supreme Court the following questions:</p> <p>“It appearing to the court that the decision of a constitutional question, within the purview of the constitutional amendment creating the Court of Appeals, is necessary to the proper determination of this case, to wit:</p> <p>“Is the act of the General Assembly, approved August 15,, 1903 (Georgia Laws, 1903, pp. 90 and 91), entitled ‘An Act to make it illegal for any person to procure money, or other thing of value, on a contract to perform services, with intent to defraud,, and to fix the punishment therefor, and for other purposes/ either-as a whole, or as to the second section thereof, unconstitutional for any of the following reasons ?</p> <p>“For that it is repugnant to and contravenes the following portions of the constitution of the United States, to wit: clause 1 of section 14 of article 8 (contained in the Civil Code, §6030), first, as to 'the portion of said article wherein it is provided that ‘no State shall . . deny to any person within its jurisdiction the equal protection of the laws/ upon the contention that in the class of contracts dealt with and contemplated by said act of 1903, the person or persons contracting to perform the services are denied, as against the person or persons for whom such services are to be rendered, the equal protection of the laws, in that it subjects the former, under certain contingencies, to prosecution and punishment, and at the same time affords the latter absolute immunity from prosecution or punishment by reason of any infraction of said contractual obligations; also in that the person contracted with and for whom services are to be rendered is permitted to testify to a state of facts which by said act are declared to be sufficient to carry the presumption of fraudulent intent, whereas the accused is not permitted to testify^, and under said act has no opportunity or means equal to that afforded to the person contracted with, and by said act such equal means and opportunity are denied him, of proving that no fraudulent intent existed at the time of making such contract or at the time of procuring money thereon, and no measure of proof is by said act laid down by which such presumption may be overcome.</p> <p>“Also for that it is repugnant to and contravenes paragraph 1 of section 4 of article 1 of the constitution of the State of Georgia (contained in the Civil Code, §5732), and especially that portion of said constitutional provision as follows: ‘Laws of a general nature shall have uniform operation throughout the State/ etc., in that while said act of 1903 purports to be a law of general nature, and essentially is a law of general nature, under its# terms and provisions it is not a law of uniform operation throughout the State, in that it singles out and deals with a given nature of contracts, and prescribes, with reference to such nature of contracts, different rules, different conditions, and different penalties from all other contracts of whatever nature; also in that it is not of uniform operation upon all parties to .such contracts as are dealt with and contemplated by said act, but imposes greater burdens, and subjects the person or persons who -contract to perform services to prosecution and punishment, under certain conditions as named in the act as quoted, -while affording to the person or persons for whom such services are to be performed absolute immunity from prosecution and punishment, and placing upon them no burdens because of an infraction of their contractual obligations; also that said act is not of uniform operation, in that, grouping in a class, as it necessarily does, citizens of this State who intercontract for the performance of services, said act of 1903 works a discrimination as against certain parties composing that class, in favor of other parties of the same class, in that it imposes on the person or persons contracting to perform the services certain conditions, prosecutions, and punishments which it does not impose or inflict upon the person or persons for whom such services are to be rendered.</p> <p>“Also for that said act of 1903, and particularly the provisions of section 2 of said act, are repugnant to paragraph 5 of section 1 of article 1 of the constitution of the State of Georgia (contained in Civil Code, §5702), and particularly that portion of said paragraph which provides that the accused ‘shall have a public and speedy trial by an impartial jury/ in that said act arbitrarily fixes the measure of evidence by which the jury shall presume guilt, whereas said constitutional provision contemplates that the jury alone should determine that question.</p> <p>“Also for that said act of 1903, particularly the provisions of section 2 of said act, are repugnant to and contravene the provisions of paragraph 17 of section 7 of article 3 (Civil Code, §5779) of the constitution of Georgia, wherein it is provided: ‘No law, or section of the code, shall be amended or repealed by mere reference to its title, or to the number of the section of the code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made/ in that the provisions of said act of 1903, as in this ground of exception set out and quoted, are directly in conflict with section 1033 of the Penal Code of Georgia, which provides: ‘On the trial of all criminal cases the jury shall be the judges of the law and the facts, and shall give a general verdict of “guilty” or “not guilty/” etc., and the provisions of said act of 1903-, of necessity, work a repeal, as to the class of prosecutions within the purview of the act of 1903, of the provisions of said section 1033 of the Penal Code; and although said provisions of said act are in conflict with and work a repeal pro tanto of said code section, no reference whatever to said code section, against the provisions of which said act militates, is made in said act of 1903; and by the provisions of said act no attempt to repeal the same, in the manner as pointed out by said provisions of said constitution, is made; and the provisions of said act being directly in conflict with said provisions of section 1033 of the Penal Code, in that by the provision of the act the jury is directed what evidence will carry a presumption of guilt, whereas, under the provisions of said code section, the jury is the sole judge of the facts and of their probative value, said provisions of said act are unconstitutional, because of its failure to repeal said code section in the manner as pointed out by said constitutional provision.”</p>

<p>1. Tlie constitution imperatively requires that all eases brought to the-Supreme Court shall be heard at the first term, unless continued for providential cause; and that all eases shall be decided at a time not later than the end of the term following that at which they are heard. In order to comply with this constitutional requirement according to-its true intent and spirit, it is necessary that the dockets of each term should be made up in such manner as to fix with definiteness, as nearly as may be, the volume of the business for the term.</p> <p>2. In the absence of a constitutional provision or a valid statute regulating the method of docketing cases, the term at which they shall be hoard is to be determined by the Supreme Court, keeping in view the constitutional requirement referred to in the preceding note.</p> <p>3. The Supreme Court, from its very origin, has exercised the power to close the docket of the term at some time during the term, and before final adjournment, so far as relates to the entering of eases thereon.</p> <p>4. The statutes regulating the practice in the Supreme Court, when construed in pari materia, and in the light of the history of the practice of closing the docket, contain nothing which, properly construed, denies this power, but, on the contrary, impliedly recognize the existence of the same.</p> <p>5. The bill of exceptions and record in the present case having been filed in the office of the clerk of the Supreme Court after the date when the docket of the term had been closed by order of the court, the case .must be placed on the docket of the next term.</p>

<p>Complaint. Before Judge Pendleton. Eulton superior court. July 2, 190C.</p>

<p>1. The petition as amended set forth a cause of action as against a general demurrer and was not subject to any of the grounds set up in the special demurrers.</p> <p>'2. Remarks of counsel while addressing the jury, which do not undertake to introduce any material fact not disclosed by the evidence, but which are merely oratorical in character, do not constitute sufficient ground for declaring a mistrial. *</p> <p>3. Under the fafets of this case it was not erroneous for the judge to charge: “The duty resting by law upon all persons to exercise ordinary care to avoid the consequences of another’s negligence does not arise until the danger is impending, or the circumstances are such that an ordinarily prudent man would have reason to apprehend its existence.”</p> <p>4. Diligence of the person injured and negligence of the defendant were questions peculiarly for the jury. The evidence upon those questions and upon all other issues made was of such character as that we can not say that the verdict in favor of the plaintiff was entirely unsupported. The discretion of the trial judge, therefore, in refusing to grant a new trial will not he interfered with.</p>

<p>Complaint for land. Before Judge 'Freeman. Troup superior court. June 22, 1906.</p> <p>S. A. Smith as administrator de bonis non cum testamento annexo of John A. Smith, filed his complaint for land against Kimbrough, administrator of Thomas Wesley Smith; and the case was submitted to the judge without a jury, under an agreed statement of facts. In accordance with the terms of this agreement he subsequently rendered his decision, which was in favor of the plaintiff, and the defendant filed the present bill of exceptions complaining of that decision. The agreed statement of facts shows that John A. Smith died in 1880, testate, and that his sons S. P. and Thomas Wesley, who were named as executors in the will, duly qualified and administered the estate, and were discharged in 1883. The third .item of the will is as follows: “I give and bequeath to my beloved wife Mary Smith, and to my son Thomas Wesley Smith, jointly, the following lots and fractions of lots of land [being the land sued for in the present case]; the lands with their appurtenances herein mentioned are to be held and the rents or profits thereof enjoyed jointly hy them; if one dies before the other, the survivor shall have the share of the one who dies, and at the death of both said property shall revert to my estate to be equally divided among my heirs at law, at that time in life; and as the mills situated on the lands thus disposed of require repairs, I give my wife and son, Thos. Wesley, five hundred dollars for the purpose of making such repairs.” The fourth, sixth, and seventh items of the will make bequests to his other children of lands therein specified, the estate in each instance being without any limitation. Item five gives certain land to his sister for life, with remainder to a named daughter. Item eight sets out that “In making the above and foregoing bequests it is distinctly to he understood that- in' every instance the property so bequeathed is.to go to the legatees mentioned and their lawful heirs, and in no instance to be subject to the debts of said legatees, and the same ruling to apply to the bequests that are to be made in the items that follow, and I value the lands thus bequeathed as follows, to wit: those to my wife and Thos. Wesley jointly $6,000, to Nannie White $3,500, to Sarah E. Cleveland $3,942 [these two being daughters], afid to Samuel P. Smith at $3,805.” Item nine is, that “All the balance of my property of each and every description, whenever and wherever it may be or consist of, I desire and direct that the same may be divided and distributed among my heirs at law hereinbefore mentioned in the foregoing items, so that the distribution may be equal, taking as a basis upon which to estimate the values I have placed on the realty bequeathed, counting my wife and Thos. Wesley as two shares — and it is to be distinctly understood that the bequest to my wife is in lieu of dower.” The residue of the estate, immediately after the death of the testator, was appraised at $35,000. These legacies were assented to, and the legatees took possession of the lands bequeathed to them. Thomas Wesley was born in 1832, and from his childhood had lived with his father and mother, never having married, and was so living at the time the will was made, and at the testator’s death. The other children had married and with their families were living apart from the testator. Thomas Wesley continued to live with his mother unmarried till her death in 1884, but later in 1894 he married. He continued to live upon the land devised to himself and his mother after her death, and till his death, which occurred on June 13, 1904. He left surviving him a wife and one child, who continued to live on the place after-his death; and this suit is brought by the administrator de bonis, non of his father’s estate, against the administrator of Thomas Wesley Smith, to recover this land. •</p>

’ Complaint. Before Judge Lewis. Morgan superior court. March 8, 1906. The Madison Oil Company brought suit against the Bearden Mercantile Company on an account for $1627.96. The bill of particulars attached to the petition contained items of cottonseed hulls and meal, sold at different dates, from September 1, 1903, to March 8, 1904. The total amount of the account was $T,958.28, which was credited with $330.32, leaving a balance due.as above stated.

Injunction. Before Judge Gober. Cobb superior court. January 28, 1907. The Wadley Southern Railway Company filed an equitable petition against Iiill and others, railroad commissioners, seeking to enjoin the enforcement of what was known as circular No. 325. Hpon the hearing the presiding judge granted the injunction prayed for.

Trover. Before Judge G-ober. Cherokee superior court. October 3, 190o. Boberts brought his action against Starnes, to recover two maride monuments. The evidence showed, in brief, as follows: At one time the plaintiff, the defendant, and another were partners, and conducted business under the name of the Boberts Marble Companj'. Subsequently the plaintiff bought the interests of the other two, and conducted business in the same name.

<p>Claim. Before Judge Beagan. Pike superior court. June 2, 1906.</p>

<p>Claim. Before Judge Lewis. Morgan superior court. May 21, 1906.</p>

Action for damages. Before Judge Little. Muscogee superior comet. May 19, 1906.

<p>Claim. Before Judge Littlejohn. Macon superior court. April 14, 1906.</p> <p>On the 39th day of April, 1880, J. L. Ogburn executed and</p>

<p>Trespass. Before A. G-. Powell, judge pro hac vice. Decatur ,-superior court. May 3, 1906.</p> <p>Hodges, as administrator de bonis non, with the will annexed, of Alley Ilugueley, brought an action against the Stuart Lumber Company, alleging that a described lot of land was the property ■of the estate which he represented, and that the defendant entered upon the land and felled and carried away all of the timber thereon; ■such timber being of the value of $1,200. The petition prayed for .a judgment for the amount above referred to, and for process. The defendant filed an answer denying all of the material allegations imposing a liability upon it. It also specially pleaded that the title to the lot at the time of the alleged trespass was not in the plaintiff, but in the devisees under the will of Alley Ilugueley, and that the executor had assented to the devise. It further pleaded that it holds the lot under a warranty deed from Wainman, and that St took possession in good faith under such deed. The plea then attacked the judgment of the ordinary of Wilkes County, appointing the plaintiff as administrator de bonis non, etc. The "trial resulted in a verdict in favor of the plaintiff. The defendant made a motion for a new trial, which was granted, and the plaintiff excepted. It appears from the brief of evidence that the parties have agreed that the verdict, so far as the amount is concerned, was demanded by the evidence; and it also apppears, from the order of the judge overruling the motion, that he was entirely satisfied with the verdict as to the amount, but based his grant of a new trial solely upon the point that the plaintiff was not entitled to recover at all. The lot in question is not referred to in the will •of Alley Ilugueley; and if it passed at all under the will, it was under the residuary clause, which is in the following language: “I will and bequeath that all the rest and residue of my estate, both real and personal, be sold by my executor as soon as may be convenient and suitable after my death, and that the net proceeds thereof be divided into nine equal shares.” The persons to take the shares are the four sous, the three daughters, a granddaughter, and the children of a daughter. The will was executed in 1840. Alley Hugueley died in 1841 or 1842. The record does not disclose when the will was admitted to record.</p>

<p>1. When it appears that the widow, who was entitled either to dower or1 to a child’s part in the real estate of her husband, dealt with an interest therein as if she were the absolute owner, such conduct will be sufficient to raise an inference that she had made an election to take a child’s part in the time prescribed by law, and cast upon those seeking to show that she had not so elected the burden of showing1 that such an election had not taken place within such time'. And this is true notwithstanding the widow may have made a mistake of law as to the interest she was entitled to, and claimed a one-sixth interest when she was really entitled to a one-fifth interest.</p> <p>2. The admissions of a defendant in execution against his interest, before the pendency of litigation, are admissible in evidence in favor of either the claimant or the plaintiff in execution.</p>

Equitable petition. Before John P. Boss, judge pro hac vice. Dodge superior court. May 31, 1906. Charles W. Sapp, George W. Sapp, Jeff. Held: but was actually signed in another county after the adjournment of court, in vacation, at chambers.

<p>Petition for injunction. Before Judge Pendleton. Fulton ■superior court. November 3, 1906.</p>

<p>Petition for injunction. Before Judge Pendleton. Pulton superior court. December 12, 1906.</p>

<p>Claim. Before Judge Kimsey. Banks superior court. March 7, 1906.</p>

<p>Equitable petition. Before Judge Brand. Clarke superior court. May 21, 190G.</p>

Equitable petition. Before Judge Fite. Gordon superior court. August 29, 1906. In 1850, John P. King and the authorities of Gordon County made and entered into a contract whereby King agreed to sell and convey to the county authorities certain lands whereon the town of Calhoun is now situated, and the authorities agreed to accept the land, lay out the county site thereon, sell the lots, and divide the proceeds of the sale with King.

Action for damages. Before Judge Freeman. Muscogee superior court. August 4, 1906. The plaintiffs, Banks & Fortson, delivered to the Louisville & Nashville Bailroad Company a car-load of mules to be shipped from Horse Cove, Ky., to Columbus, Ga., via Birmingham, Ala. The contract of shipment was signed at Horse Cove, Ky., by Lazarus & Altsheler, from whom the plaintiffs purchased the stock.

<p>An affidavit to obtain a distress warrant on tbe ground that the rent is due is amendable by alleging the rent was not due at the time the affidavit was made, but at that time the tenant was seeking to remove his goods from the premises, where the distress warrant has been converted into mesne process by the tenant’s filing the statutory counter-affidavit.</p>

Appeal. Before Judge Littlejohn. Sumter superior court. May 29, 1906. Josephine Jones and her children filed a petition in the court of ordinary of Sumter County, to set aside an order granting leave to C. B. Whitley, administrator of Henry Jones deceased, to sell certain land, alleging as follows: Henry Jones, the husband of Josephine Jones, died in Sumter County on November 21, 1897, leaving certain described real estate.

<p>Complaint for land. Before Judge Spence. Worth superior court. May 4, 1906.</p>

<p>Trespass. Before Judge Mitchell. Echols superior court. July 16, 1906.</p>

Equitable petition. Before Judge Martin. Wilcox superior , court. March 31, 1906. J. W. Armstrong and others brought suit, in the superior court of Wilcox County, against Parker A. Henderson, to enjoin the ■defendant from cutting the timber upon lots of land numbers 210 and 212 in the 8th district of that county, and for damages for the cutting of timber thereon.

<p>Action for damages. Before Judge Martin. Wilcox superior court. March 34, 1906..</p>

<p>Action for damages. Before Judge Martin. Telfair superior court. July 30, 1906.</p>

Equitable petition. Before Judge Pendleton. Pulton superior court. April 5, 1906. The plaintiff, Brockhan, filed a bill in Fulton superior court against Hirsch, and Nelms, sheriff, seeking to set aside the sale of certain lands made by said sheriff under executions in favor of said Hirsch, the lands being purchased by the last-named defendant.

Complaint for land. Before Judge Brand. Walton superior court. July 12, 1906. ' J. E. P. Sewell brought an action of complaint against J. E. Grubbs and J. O. Norris, seeking to recover a tract of land containing forty-two and a half acres. The defendants denied that the plaintiff was the owner of the land; and Norris alleged that he was the lawful owner and in legally acquired possession.

<p>1. Adhere a eliose in action is owned by several individuals jointly and suit instituted by one of them alone, making no reference in the pleadings to the joint ownership, or to the other individuals, and the plaintiff obtains judgment in his individual name, without reference to the others, the judgment does not create a lien against the defendant in favor of those who were not named therein.</p> <p>1 (a) A sale of the execution issued upon such judgment by the plaintiff named therein to the defendant satisfies the claim of the plaintiff.</p> <p>2. Where an attorney at law, asserting the statutory lien for attorney’s fees, seeks to collect the same from the defendant in fi. fa. after settlement with the plaintiff, and, testifying in his own behalf, fails to state clearly and unequivocally the terms of the contract of employment, or the amount due him, either by express or implied contract, but testifies affirmatively that after the settlement between the parties the plaintiff sent him a check which recited that it was “in full for fees,” and that lie indorsed and collected the check without raising any question with the plaintiff that it was not in full satisfaction of the fees, such acceptance and use of the check, without explanation, authorizes the court to hold as a matter of law that no attorney’s fees were due.</p> <p>3. The uncontradicted evidence in this ease, when considered in that view most favorable to the contentions of the plaintiff, demanded a verdict for the defendant, and the court did not commit error by so directing.</p>

Equitable petition. Before Judge Lewis. Laurens superior court. July 23, 1906.

Action for damages. Before Judge Freeman. Muscogee superior court. August 4, 19OC. The City Mills Company brought suit against the Central of Georgia Bailway Company, alleging that it made a shipment of certain meal from Columbus, Georgia, to Jacksonville, Florida, and that the defendant failed to deliver the freight at the point of destination.