Volume 129 — Georgia Reports

Injunction. Before Judge Pendleton. Pulton superior court. September 28, 1906. Á brief historical statement as to the organization and progress of the Cumberland Presbyterian Church is appropriate and will be more or less helpful in the determination of the legal questions which will be hereafter discussed. The Cumberland Presbyterian Church was organized in Dickson county, Tennessee, February 4, 1810.

<p>Intervention. Before I. J. Hofmayer, judge pro hac vice. Mitchell superior court. May 12, 1906.</p> <p>J. M. Spence instituted suit against Perry’s Pharmacy, a corporation, for the purpose of foreclosing a mortgage in. equity. A receiver was appointed. Solomons Company and numerous other persons intervened. Solomons Company,-intervened specially, and •sought affirmative relief against Spence, the plaintiff,' and alleged the following: 1. “That to the October term, 1905, of this honorable court, there was filed a petition by J. M. Spence against Perry’s Pharmacy, a corporation within the jurisdiction of said court, brought for the purpose of foreclosing in equity a certain mortgage* executed by said Perry’s Pharmacy to said J. M. Spence on or about the 17th day of October, 1904, to secure a note of like date for the sum of $4,200, due six months after the date thereof. That under said petition this court appointed T. B. Perry receiver of the assets of the defendant mortgagor, who, under the order of this court, sold the assets of said defendant which were covered by said mortgage, realizing therefrom the sum of thirty-one hundred dollars, or other large sum. 2. That there is now in the hands of the receiver in said cause the said sum of money, less any disbursements for expenses which said receiver may have legally paid out under order -of this court, which said sum is for disbursement as this court may order in the final decree to be entered herein. 3. , That your petitioner is the holder of three certain promissory notes, aggregating the principal sum of one thousand, six hun■dred and fifty-eight and 95-100 dollars, besides interest and protest fees, which said notes are as follows: One for the sum of six hundred and fifty-eight and 95-100 dollars, dated Jan. 18, 1905, due on June 15, 1905, signed by Perry’s Pharmacy and endorsed by B. Perry, T. B. Twitty, and J. M. Spence, and bearing interest from maturity at the rate of eight per cent, per annum. Said note was protested for non-payment at the cost of one and 50-100 dollars, paid by your petitioner. A copy of said note is hereto attached as part hereof, marked Exhibit A, to which reference is hereby made for the particulars thereof. Two of said notes are for the sum, respectively, of five hundred dollars each, dated Jan. 23, 1905, signed by M. Y. Robbins and D. Y. Thompson, who also sign by their firm name, Thompson & Robbins Drug Co., and bearing interest from Jan. 17th, 1905, at the rate of eight per cent, per annum. Each of said notes was duly protested for non-payment at a total cost of three dollars paid by your 'petitioner. Copies of said two notes are hereto attached as part hereof, marked Exhibit B, to which reference is made for the particulars thereof. 4. Your petitioner further shows that by reason of the liability to it by J. M. Spence, in virtue of his endorsement notes and his failure to pay same, it has an interest in the fund now in the custody, through its officer and receiver, to the extent of the amounts due upon said notes, to wit, the principal, interest, and protest fees. '5. Your petitioner further shows that under the laws of this State it is not permitted to garnish the receiver, and avers that, unless allowed to. intervene in this cause on its own behalf, for the purpose of the fund in court, should the said plaintiff recover in his action subjecting to the payment of its debt against the said J. II. Spence, to wit, the amount of the principal, interest, and protest fees of said three notes, by reason of his liability" thereon as endorser, it apprehends that said amounts or some part thereof will be lost to it, for the reason that, so far as it is informed and believes, the said J. M. Spence has no tangible property out of which your petitioner could collect the amounts due to it by the said J. M. Spence, as aforesaid, by the ordinary process of suit, judgment, and execution. 6. That by virtue of his said endorsement on the notes above set forth, the said J. M. Spence is indebted to your petitioner in the principal sum of one thousand, six hundred, and fifty-eight and 95-100, the further sum of four and 50-100 dollars protest fees, and interest on said principal sum from March 17, 1905, that being the average interest date, at the rate of eight per cent, per annum.” The intervention originally contained a prayer for judgment against Spence, but this prayer by amendment was stricken, and in lieu thereof the following was substituted: “Intervenors pray that in the event that it shall be decreed by the court that the mortgage sought to be foreclosed by J. M. Spence is a valid and binding instrument and that the said J. M. Spence shall recover of the defendant, Perry’s Pharmacy, thereon, .that then and in this event that the receiver of this honorable court be decreed to hold up and retain in his custody out of any mone}s in his hands to' which the said mortgagee may be entitled, or the same may be otherwise impounded by this honorable court or a sufficiency of said funds to pay off in full the notes due to this intervenor as shown in their original intervention, as same may be ascertained and fixed in an action at law between this intervenor and the said J. M. Spence.” Spence did not file an answer to the intervention, but demurred, among others, upon the ground that the intervention “does not show any right, either in law or equity, why the relief prayed for should be granted.” The court overruled the demurrer, and, after hearing evidence, passed the following order: “After hearing the evidence in said intervention</p> <p>and after argument of counsel, it being made to appear to the court from the sworn allegations contained in the petition and intervention of Solomons Company, filed in this court in the cause above stated, and from the evidence introduced, that the plaintiff and mortgagee, J. M. Spence, is indebted to Solomons Company in the sum of (principal) one thousand, six hundred, and fifty-eight dollars and ninety-five cents, besides protests fees and interest as endorser on three certain negotiable promissory notes, and it appearing that said endorser is insolvent and that therefore said Solomons Company will be unable to compel payment of said debt by said endorser, and it further appearing to the court that there is now in the hands of T. B. Perry, as receiver of this court in said cause, a sum of money decreed to be paid by said .receiver to the said J. M. Spence, on the mortgage foreclosed as above stated, upon the prayers of the petition and intervention of said Solomons Company that a sufficient sum in the hands of said receiver be withheld by said court and impounded to await the judgment that may be hereafter rendered between the intervenors and said J. M. Spence in an action against said J. M. Spence by said intervenors, until the further order of the court; and it further appearing to the court, sitting as a court of equity, that said intervenors are without an adequate remedy in a court of law to reach said funds in the hands of the receiver of this court, by garnishment or otherwise, so ás tó subject same to any judgment that may hereafter obtain against the said J. M. Spence in said suit to be hereafter brought, it is ordered and decreed by the court that the receiver of this court in the above-stated case, T. B. Perry, shall retain from the said funds in his hands, belonging to and decreed to be paid by him to said J. M. Spence, the sum of nineteen hundred dollars to await the further order of this court in the premises; provided that this judgment and decree shall have eifect only if the said intervenors, Solomons Company, within thirty days from date, file with the clerk of the superior court of Mitchell county a bond with good and solvent security to be approved by the clerk in the sum of one thousand dollars, payable to J. M. Spence, and conditioned to pay said Spence any damages and costs he may sustain by reason of the foregoing money being held up, in the event of failure of said intervenor to recover against said J. M. Spence in the suit aforesaid to be hereinafter instituted and brought within 60 days from date.” Spence excepted, assigning error on the judgment overruling the demurrer, and upon the impounding of the money.</p>

<p>Intervention. Before I. J. Hofmayer, judge pro hac vice. Mitchell superior court. July 23, 1906.</p> <p>J. M. Spence filed an equitable petition against Perry’s Pharmacy, alleging, that he is the holder of a mortgage on the entire stock of merchandise' carried by said defendant; that said mortgage, for the sum of $4,200 principal, is due and unpaid; that said stock if not of sufficient value to cover the amount of the mortgage, and that it could be sold for a larger sum at private sale than at a public sale. Wherefore he prayed that the mortgage be foreclosed, and that “a receiver be appointed to take charge of all of the assets of said defendant, including all of the property described, in said mortgage, all notes and accounts, choses in action, . . and that the same.be sold to satisfy said mortgage.” A copy of the instrument sued on is attached to the petition, the material portions of which are as follows: “Six months after date we promise to pay to the order of J. M. Spence $4,200, for value received.” It further provides for interest from maturity at the rate of eight per cent., and ten per cent, attorney’s fees, and contains a waiver of “all homestead and exemption rights which I or my family may be entitled to under the constitution or laws, State or Federal. . . And in order to secure the payment of the said 'indebtedness, we hereby bargain, sell, and convey to the payees of this note, their heirs and assigns, the following property: . . all the stock of merchandise carried by Perry’s Pharmacy in their store at Camilla, Ga., consisting of [itemizing said stock],, and all other articles carried in their stock not herein mentioned.”And in case said debt was not paid at, maturity, the payee was authorized to seize and take possession of said property and sell the same, after advertising the sale for ten days, at public outcry ixr front of the court-house door, and apply the proceeds to the payment of said indebtedness. The instrument was signed as follows r “Perry’s Pharmacy (L. S.), T. B. Perry, Sec. & Treas. (L. S.) T. B. Twitty, Y. Pres. (L. S.).”</p> <p>After considering the petition, the judge at chambers passed an order appointing T. B. Perry permanent receiver, “to take charge-of all of the mortgaged property described in said petition, and to take charge of the store of defendant, and to carry on the business of the same in the ordinary way, keeping a full account of his-doings, until further order of the court.” At the following term-R. B. Middleton, receiver of the Rodrigues Cigar Co., a creditor of Perry’s Pharmacy, filed an intervention, attacking for fraud, a certain sale of goods by Perry’s Pharmacy to the Robbins-Thompson Drug Co., and alleging that the instrument in favor of J. M-Spence was made for the purpose of delaying, hindering, and defrauding the other creditors of said defendant: “that said so-called mortgage is void and fraudulent, for the reason that it was made to prefer an officer of said corporation after said corporation was insolvent;” and that said instrument was a violation of the provisions of the act of the General Assembly relating to the sale of goods in bulk (A. ’03, p. 92). The intervenor prayed that the mortgage in favor of J. M. Spence be declared to be null and void; that this intervenor’s claim, and all other just claims of such creditors as may hereafter intervene, be proved and allowed against the assets of Perry’s Pharmacy; and that T. B. Perry be removed as receiver. Subsequently other creditors intervened, alleging the insolvency of Perry’s Pharmacy and praying that a receiver be appointed under the provisions of the insolvent trader’s act.</p> <p>At the hearing the motion to remove T. B. Perry from his position as receiver was denied, and he was ordered to take charge of that part of the goods of the Bobbins-Thompson Drug Co., which 'had been purchased from Perry’s Pharmacy. After the filing of the original petition by J. M. Spence, Perry’s Pharmacy was adjudicated a bankrupt in the district court of the United States, and L. W. Nelson was appointed and qualified as trustee in bankruptcy. He joined in the intervention of Middleton et al., and prayed that T. B. Perry, receiver, be directed to turn over to him, the trustee in bankruptcy, all the assets of the Perry’s Pharmacy. The intervenors also filed a demurrer to the foreclosure proceeding instituted by Spence, on the ground that “said alleged mortgage [in favor of Spence] is no mortgage, but shows upon its face that it is a deed to secure a debt;” and because it conveys title only to those goods in the stock of Perry’s Pharmacy at the time of the execution of the instrument, and does not operate upon after-acquired goods. Nelson, trustee, filed a plea in .abatement to the original foreclosure proceeding, based on the latter ground of the demurrer. The intervention was amended by alleging, in substance, that the instrument sought to be foreclosed by Spence was void, because not properly executed by Perry’s Pharmacy; that said instrument was tainted with usury; and that Perry’s Pharmacy is not indebted to Spence in the sum named in the said instrument.</p> <p>Spence amended his petition by alleging that “it was the intention of the parties to said mortgage from Perry’s Pharmacy to J. M. Spence that it should cover the stock of goods in said mortgage described, including the soda-fount, as a stock of goods in bulk changing in specifies, and by mutual mistake these words were omitted from the instrument,” and prayed that the mortgage be so reformed as to conform to the intention of the parties. The intervenors objected to the allowance of this amendment, on the ground that it set up a new cause of action, and because it sought to vary the terms of an unambiguous written instrument. The objection was overruled, and they excepted pendente lite. At the hearing of the application of Nelson, trustee, the court passed an order directing “that the notes, accounts, dioses in action, books and papers of the Perry’s Pharmacy, also the property received by the receiver from the Eobbins-Thompson Drug Co., be delivered by T. B. Perry, receiver, to L. W. Nelson, trustee in bankruptcy; and that the application of the trustee in bankruptcy to have the assets and money taken possession of or arising under the original mortgage foreclosure in favor of J. M. Spence be refused.” The intervenors excepted pendente lite to this order. Upon the trial the jury returned a verdict finding that “the paper sued on by the plaintiff [Spence] was intended' by parties thereto as a mortgage,” and- that “it was the intention of the parties to indude the soda fount,” and also in favor of the plaintiff upon the mortgage. The intervenors made a motion for new trial, which was overruled, and they excepted, aligning error upon this judgment, and upon their exceptions pendente lite.</p>

<p>Action for breach of contract. Before Judge Littlejohn. Sumter superior court. March 1, 1906.</p>

<p>Application for temporary alimony. Before Judge Spence. Calhoun superior court. December 4, 1906.</p>

Petition for injunction. Before Judge Parker. Glynn superior court.- June 21, 1906. The Atlantic and Birmingham Railway Company filed a petition for injunction against the Atlantic Coast Line Railroad Company, seeking to restrain the defendant from constructing and maintaining a spur-track leading from the defendant’s main line of track on A street in the city of Brunswick to the planing-mill of Noble & Parker, which spur-track would cross plaintiff’s main line on A street.

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. July 2, 1906.</p>

<p>Complaint for land. Before Judge Bartlett. Douglas superior court. .April 18, 1906.</p>

<p>Petition for injunction, from Monroe superior court. Practice.</p>

Equitable petition. Before EL IE. Swift, judge pro liac viceMuscogee superior court. June 27, 1906.

<p>1. A lease of a tenement carries with it an implied grant of the right to light and air from adjoining land of the landlord, where the situation and habitual use of the demised tenement is such that the right to light and air is essential to the beneficial enjoyment of the leased tenement.</p> <p>2. One who subsequently rents t,lie adjoining land is invested with no greater privileges than his landlord, and is liable to his neighbor tenant in damages resulting from interference with the latter’s implied easement.</p> <p>3. Ordinarily the damage recoverable is the depreciated rental value of the tenement; but if the instrumentality which obstructs the light and air be so constructed as to project the rain-water through the window of the tenement to the injury of the tenant’s bedroom furnishings and to his personal discomfort, and this is done with the view of causing the tenant to abandon his lease, punitive damages may be allowed.</p> <p>4. Some of the special demurrers were well taken, and others should have been overruled.</p>

<p>Petition for probate of will. Before Judge Mitchell. Grady superior court. March 6, 1906.</p> <p>Bedie Godwin presented to the ordinary of Grady county a petition alleging as follows: Mary C. Godwin died on January 19, 1905, leaving an estate disposed of by will, petitioner being a legatee therein. The will has been offered for probate, in common form in the court pf ordinary of Decatur county, by W. B. God-win, who is named as executor. The property devised is situated in Grady county, and all the parties at interest are residents of that county. The petitioner desires the will to be probated in solemn form, and prays that citation issue and that the will be probated. A copy of the will is attached.' A demurrer was filed on the grounds, that the petitipn had-only a purported copy of the will attached, with no facts shown which would authorize the establishment of a copy of the lost or destroyed original; because no statement of facts was made which would authorize the use of an established copy, if such copy existed; and because the original will has been propounded by the executor named therein for probate in the court of ordinary of Decatur epunty. The ordinary sustained the demurrer, and an appeal was taken to the superior court, where other grounds of demurrer were added, to the effect that the petition was not accompanied by the original will; that no properly authenticated copy of the probated will was attached to the petition; and that the will had been offered for probate in the court of ordinary of D.ecatur county, and therefore was not within the jurisdiction of the courts of Grady county. Objection was made to this amended demurrer, on the ground that it was not an amendment but a new . demurrer and could not be made on appeal. The objection was overruled. The demurrer was sustained, and Bedie Godwin excepted.</p>

<p>Exceptions to auditor’s report. Before Judge Eite. Bartow superior court. August 4, 1906.</p>

<p>Exceptions to auditor’s report. Before Judge Eite. Bartow superior court. August 4, 1906.</p>

Equitable petition. Before Judge Freeman. Carroll superior court. June 27, 1906. ‘ Fannie .E. Newell, for herself and as -next friend for several named minor children, filed a petition against W. L. Newell, the husband of petitioner, and R. F. Turner.

<p>Probate of will. Before Judge Littlejohn. Lee superior court. July 2, 1906.</p>

Partition. Before Judge Martin. Pulaski superior court. January 18, 1906. W. H. Jones and 0. H. Jones filed their application for partition of certain lands in Pulaski county. The petition alleges that because of the improvements on the land a just and equitable division by metes and bounds is impracticable, and prays for the sale of the, lands.

<p>Injunction. Before Judge Martin. ’Irwin superior court. July 18, 1906.</p>

<p>Complaint. Before Judge Martin. Wilcox superior court. March 31, 1906.</p>

<p>1. Upon a careful'consideration of the charge of the court and the several requests to charge which were refused, we do not think there was any error in refusing to grant a new trial upon the exceptions thereto* urged in the motion for new trial.</p> <p>2. The verdict was supported by the evidence, and no reason appears for interfering with the discretion of the trial court in refusing to grant a new trial. Fish, O. J., dissents.</p>

Action for damages. Before Judge Lewis. Baldwin superior court. July 13, 1906. Fowler brought suit against the Milledgeville Water Company nnd Hanes, superintendent, to recover damages alleged to have been sustained by reason of the failure and refusal of the defendants to furnish water for the plaintiff’s residence in the city of Milledgeville.

Action for damages. Before Judge Bawlings. Bnllocb superior court. February 15, 1906. Mrs. Kemp brought suit for damages resulting from tbe homicide of ber husband.

- Specific performance. Before Judge Cann. Chatham superior court. April ll, 1906. The second item of the will of Mary Houston, deceased, provided that her propertjr should be held in trust by her executor, who was directed, out of the rents, income, and profits, to educate and maintain the minor children of the testatrix, and to pay the necessary expenses of the estate.

Practice. Writ of error from Lee superior court. The plaintiff in error, Mrs. L. B. Simmons, filed an affidavit of illegality to the levy of a fi. fa. in favor of Scarborough, transferee of Byrom, against E. J. and L. B. Simmons. . Upon the trial the plaintiff in error offered an amendment to her affidavit of illegality.

Complaint. Before Judge Hodges. City court of Macon. January 31, 1906. The Eidelity and Deposit Company of Maryland, hereinafter called the Eidelity Co., brought separate actions against tbe American National Bank of Macon, Ga., hereinafter called the National Bank, and against the Exchange Bank of Macon, Ga., hereinafter designated as the Exchange Bank, alleging substantially the same matters of complaint in both petitions.

Complaint. Before Judge Bartlett. Paulding superior court. May 5, 1906. T. B. Bedmond & Co. brought suit against the Atlanta & Birmingham Air-Line Bailway Co., to recover various amounts alleged to be due to tbe plaintiffs for work done and material furnished in the construction of a single-track railroad along sections 37, 38, 39, and 40, of defendant’s line. Both general and special demurrers were interposed by the defendant.

Exceptions to auditor’s report. Before Judge Parker. Appling superior court. December 30, 1905. G. T. Melton & Sons sued out an attachment against Eobert E. Sizer & Company, a corporation of the State of New York.

Equitable petition. Before Judge Pendleton. Eulton superior court. June 13, 1906. Lewis C. Eussell instituted suit against the Equitable Loan & Security Company, a corporation, in the superior court of Eulton. county. In the petition it was alleged, among other things, as-follows: “2. That your petitioner is the holder and owner . . of four certificates numbered 740, 742, 743, and 745 respectively,, class A.- 3.

<p>1. In a prosecution for a felony the accused has the right to be present at every stage of the trial; and where the court in such a case, without the consent of the accused and during his enforced absence — he being; confined in jail — ordered a mistrial because of the inability of the jury to agree, on a subsequent trial of the same case it was error, requiring; a reversal, to strike a plea setting up such unauthorized mistrial and. the former jeopardy of the accused.</p> <p>2. The case of Lester v. State, 33 Ga. 329, wherein the decision, as applied to the facts, is contrary to the above ruling, being under review*, is overruled.</p>

<p>Action for damages. Before Judge Parker. Glynn superior court. August 14, 1906.</p>

Petition for injunction. Before Judge Parker. Coffee superior court. April 13, 1907.

Action for damages. Before Judge Felton. Bibb superior court. January 31, 1907. Mrs. Seifert sued the telegraph company, alleging that her husband delivered to the defendant a message in the following words: To Dr. R. C. Mosely, Bolingbroke, Ga. Come at once. Mrs. Seifert worse. E. C. Seifert.” The defendant received the message and undertook to transmit it with reasonable despatch. The charges demanded were paid.

Petition for • injunction. Before Judge Brand. Franklin superior court. March 21, 1907.

<p>Action upon insurance policy. Before Judge Mitchell. Colquitt superior court. October 29, 190C.</p> <p>Kate Crenshaw brought suit against the Supreme Lodge of the-Knights of Pythias, alleging, that the defendant was incorporated under an act of Congress, with an office and place of doing business in the county in this State in which the suit was brought; that it issued a benefit certificate and policy of insurance, insuring the life of Perry J. Williams in the sum of $2,000; that the plaintiff is the mother of the insured and the beneficiary under the certificate; that the insured was a member in good standing on February 1, 1906, on which date he departed this life; that during the month of February, and subsequently to his death, the plaintiff furnished proofs of death, and conformed to all of the conditions of the certificate as required, and all assessments and dues were duly paid, and the defendant has not paid the policy nor any part thereof. Judgment was prayed for the $2,000, with interest. Attached to the petition as an exhibit is a copy of the certificate, which recites, that it is issued upon the statements and agreements contained in the application for the same. The defendant filed a demurrer, which was overruled, and the defendant excepted. It also filed an answer, in which it admitted the allegations as t» its corporate existence and place of business in the county alleged, and that it had -issued the certificate as alleged. It denied that the insured was a member in good standing, that the policy was in force on the date that the insured died, that all assessments had been paid, and that proofs of death had been furnished. It admitted that the policy had not been paid, and denied all liability thereunder. . It also 'filed three special pleas in bar. The first ■alleged that in the application for the certificate was the following provision: “It is agreed that if death is caused or superinduced ■at the hands of justice, or in violation of, 'or attempt to violate, .any criminal law, then there shall be paid” a lower sum than the face of the policy, to be calculated according to the method prescribed in the application. It then alleged that the death of the insured was caused or superinduced by the hands of justice, for that he was shot to death by E. C. Lindsay while he was engaged in the attempt to commit the offense of adultery and fornication with the wife of the said Lindsay, who discovered them under ■circumstances showing that the act was about to begin, and the said Lindsay acted promptly and in the burst of passion and indignation which overwhelmed him on discovering the outrage which had been done him, and that the killing was justifiable. The plea then set forth the amount that is admitted to be due under the terms of the policy, which amount the defendant tendered to the plaintiff. The second special plea, after setting forth the stipulation in the application above referred to, and also making tender of the amount admitted to be due thereunder, alleged that the death of the insured was caused or superinduced in the violation of a criminal law, in that the insured was shot to death by Lindsay immediately after he had committed the offense of adultery and fornication with Lindsaj^s wife, Lindsay slaying him immediately after the guilty act was over, and .in the killing he acted promptly and in that burst of passion and indignation that overwhelmed him on discovering the outrage that was done him, and, if the killing was not justifiable, it would reduce the crime from murder to manslaughter. The third special plea, after alleging the stipulation in the application above referred to, and making tender of the amount admitted to be due thereunder, alleged that the death of the insured was caused or superinduced in the violation of, or attempt to violate, the criminal laws of this State, in that he was shot to death by Lindsay while engaged in an attempt to commit the offense of adultery and fornication with the wife o" Lindsay, or immediately after he had committed the offense. The plaintiff filed demurrers to the answer and special pleas, which were sustained, and the pleas stricken. The defendant excepted.</p>

<p>Indictment for murder. Before Judge Beagan. Henry superior court. May 18, 1907.</p>

Action for damages. Before Judge Bawlings. Johnson superior court. September 7, 1906. Elizabeth Gornto brought an action for damages against tbe Wrightsville & Tennille Bailroad Company, for the alleged wrongful homicide of ‘her husband, William C. Gornto.

<p>One who, for valuable considerations, including the payment to him of a given sum of money, has released another from all further liability for personal injuries sustained by the releaser, can not, even upon legal grounds, obtain a rescission of such contract of release, and recover upon the original cause of action, without first restoring, or offering to restore, to the releasee what he paid for such release.</p>

<p>1. The general rule is that public property and the various instrumentalities of government are not subject to taxation. This immunity rests upon the most fundamental principles of government; being necessary in order that the functions of government be not unduly impeded, and that the government be not forced into the inconsistency of taxing itself in order to raise "money to pay over to itself.</p> <p>2. Constitutions and statutes, in so far as they deal with the subject of taxation, are to be interpreted in the light of the fundamental principles above referred to.</p> <p>3. A municipality is a mere political division of the State. It is a public corporation, having for its object the administration of a portion of the powers of government delegated to it for that purpose.</p> <p>-4. A municipal corporation may borrow money to be used for- the purposes of government, or for such other purposes as may be authorized by the constitution and laws, when the power to borrow is delegated in the charter.</p> <p>3. Bonds issued by a municipal corporation, as evidence of a loan made to it, are instrumentalities of the government' which creates the municipal corporation. Laws providing for the collection of taxes will not be so construed as to authorize the collection of a tax upon such instrumentalities of government, unless there is in the law clear language declaring that such was the intent of the lawmaking power.</p> <p>®. General terms and expressions in the constitution, or in the statute providing for the collection of taxes, are never allowed their full literal import if the effect of such construction is to require that to be done which the law does not authorize, or to violate a fundamental principle upon which the government is founded and operated.</p> <p>Í. The word “property,” in that clause of the constitution of this State which declares, “All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax,” properly construed, does not require the taxing of public property or any of the lawful instrumentalities of government.</p> <p>3. There are not, in the tax laws of this State, any terms which expressly declare that the bonds of the State, or its various political subdivisions, are subject to tax, nor any language in such laws which clearly indicates that it was the intention of the General Assembly to subject these instrumentalities of government to taxation, either by the State or any county thereof.</p> <p>9. Bonds issued by a municipal corporation of this State in the hands of a. resident of this State are not taxable by this State or any county thereof.</p>

<p>Claim. Before Judge Cann. Chatham superior court. August 15, 1906.</p>

Equitable petition. Before Judge Felton. . Bibb superior court. November 30, 1906.

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

<p>The petition, when properly construed, set forth two separate and distinct; causes of action, one of them arising ex contractu and the other ex. delicto, and was subject to demurrer on the ground that there was a misjoinder of causes of action.</p>

<p>Foreclosure of mortgage. Before Judge Wright. Floyd superior court. December 4, 1906.</p>

<p>Action on insurance policy. Before Judge Cann. Chatham superior court. December 15, 1906.</p> <p>Wheeler sued the Fidelity and Casualty Company, alleging that the defendant was indebted to him in a stated sum, on a policy of accident insurance. The policy insured the plaintiff “against disability or death resulting directly, and independently of all other causes, from bodily injuries sustained through external, violent, and accidental means (suicide, sane or insane, not included).’ The policy, in different clauses, made stipulations in reference to the terms upon which the insured would or would not be entitled to indemnity; such clauses containing such expressions as, “If said injuries shall,” etc. The policy also contained the following clause: “In case a person other than the insured or his legal representatives is specifically named as beneficiary, then, and not otherwise, this policy shall also, in consideration of the premium, insure the person so named as beneficiary against disability or death, resulting directly, and independently of all other causes, from bodily injuries sustained through external, violent, and accidental means (suicide, sane or insane, not included), and received by said person while riding as a passenger in or on a public conveyance propelled by steam, electricity, compressed air or cable, and provided for passenger service, including a passenger-elevator.” It was alleged that Lela Wheeler, wife of the plaintiff, was specifically named as the beneficiary in the policy, and that she died as the result of a gunshot wound accidentally inflicted. The shot that killed her was fired from a passing' street passenger-car, propelled by electricity. The conductor of the car got into an altercation with a passenger, and shot at the passenger in the car, and the bullet struck the plaintiff’s wife while she was going up the front steps of her home on the street along which the car was .passing. It was alleged, that the soliciting agent of the defendant, at the time the policy was sold, represented that the plaintiff would be indemnified in the sum named in the policy in the event that his wife should die as the. result of any bodily injuries sustained through external, violent, and accidental means, whether received on a ear or otherwise; that the agent stated that it was a new form of insurance which furnished greater protection than airy policy that had ever been issued; that this was an inducement held out to the plaintiff to take the policy; that at the time the plaintiff paid the renewal premium the defendant was issuing two forms of policies for the same premium, in one of which the liability was not confined and limited, and in the other of which it was confined and limited by express words; and that the plaintiff paid the renewal premium upon the faith of the representation made to him that the policy covered all of the injuries of the nature and character of those which resulted in the death of his wife. The defendant filed a general demurrer; and .also a special demurrer to that portion of the petition relating to the representations of the soliciting agent, upon The ground that whatever representations might have been made were merged into the written contract, and the terms of the writing could not be varied by parol testimony.</p>

<p>1. Where- a judgment is pleaded as an estoppel, the burden is upon the party relying upon the estoppel to sustain the plea, by showing that the particular matter in controversy was necessarily or actually determined in the former litigation; and if it appear, from the record introduced in support of the plea, that several issues were involved in such litigation, and the verdict and judgment do not clearly show that this particular issue was then decided, before such plea can be sustained, this uncertainty must be removed by extrinsic evidence showing that such matter was then decided in accordance with the contention of the party relying upon the plea.</p> <p>2. The case of Linton v. Harris, 78 Ga. 265 (3 S. E. 278), distinguished from the present case.</p>

<p>A fine paid by one who was convicted under an indictment which was void, for the reason that it charged no offense against the laws of the State, can not be recovered by rule against the sheriff who collected the same.</p>

Libel for divorce. Before Judge Spence. Turner superior court. September 10, 1906. Sarah Brown filed her libel for divorce against her husband,. W. 0. Brown, on the ground of cruel treatment. In support of' her allegations the libellant testified: “I and the defendant, W. O. Brown, have both been residents of Wilcox county three years-before the filing of suit.

<p>Application lor year’s support. Before Judge Little. Talbot superior court. November 3, 1906.</p>

<p>Indictment for murder.' Before Judge Edwards. Haralson superior court. June 15, 1907.</p>

<p>The misinstruction excepted to required a new trial.</p>

<p>Affidavit of illegality. Before Judge' Brand. Gwinnett superior court. September 12, 1906.</p>

Injunction. Before Judge Keagan. Butts superior court. March 30, 1907. This was an application by the Southern Kailway Company to enjoin the tax-receiver and collector of Jenkinsburg Public-School District and the sheriff of Butts County from proceeding to collect two tax executions for school tax alleged to be due by the railway company to the authorities of said district, one for the year 1905, and the other for the year 1906.

<p>Motion for new trial. Before Judge Parker. Glynn superior court. August 15, 1906.</p>

<p>It appearing from the official entry made upon the bill of exceptions in this case that it was not filed in the office of the clerk of the trial court -within fifteen days from the date of the judge’s certificate, the writ of error must be dismissed.</p>

Equitable petition. Before Judge Parker. Glynn superior c-ourt. December 5, 1906. Imcretia'Murray and Charles T. Murray filed their petition in Glynn superior court against John J. McGuire, praying the cancellation of a certain deed. The salient features of the petition are, that the plaintiffs are the widow and son, respectively, of John Murray, late of Glynn county, deceased, and are his sole heirs at law.

<p>Injunction. Before Judge Parker. Coffee superior court. May 4, 1907.</p> <p>Herrington brought an equitable .petition against Thomas, alleging that the plaintiff bought from the defendant the right to-box the timber suitable for turpentine purposes, for a period of' four years, upon a tract of land containing 340 acres, and paid therefor the sum of $100; that he failed to take a lease, but attempted to do so; that, neither of the parties knowing how to draw a lease, the writing which they signed failed to accomplish, the purpose; that he afterwards demanded a lease from the defendant, and the defendant refused to give it; that he commenced to exercise the privilege claimed, and boxed and otherwise used the timber upon the land, and, in order to protect the timber from forest fires and preserve the same from destruction, he placed several employees in the woods to weed and rake the grass and straw; that unless this precaution is taken, the timber is liable to-be destroyed and irreparable damage result to one interested in using'the same for turpentine’purposes; and that the defendant intimidated and threatened his employees and drove them from the-land. The prayer is, for an injunction to restrain the defendant from interfering with the laborers of plaintiff, and that the defendant be required, by decree, to execute the lease in accordance with the agreement of the parties. Upon this - petition the judge granted a rule nisi and a restraining order. The defendant answered, that he had never agreed to execute a lease to all of the timber on all of the tract of land, but he did agree to permit thejilaintiff to work the boxes then cut, and also to cut and use all the timber suitable for turpentine purposes in an old field, consisting, of thirty acres, lying on the north side of the tract; the sum to be-paid for this privilege being $100; that the plaintiff asked for the.turpentine privileges only to the extent just referred to, and the-defendant agreed to nothing more; that it was distinctly understood that the plaintiff was not to touch a tree outside of the thirty acres, except to work tbe old boxes then, in existence; that the defendant is a Greek, and could neither read nor write the English language, and is entirely ignorant in reference to transactions of the character of the one entered into; that the plaintiff presented him with a paper, which he represented contained the agreement in the terms as understood by the defendant, and the defendant agreed that his name.might be placed thereon upon these terms; that he does hot know where this paper is; that if it contains any provisions other than those above referred to, it was obtained by fraud; that the plaintiff, instead of simply working the, old boxes and the timber on the thirty acres, without any lawful warrant or authority is beginning to cut new boxes on the land outside of the thirty-acre tract, and this conduct has already damaged the defendant in the sum of $500. He prays judgment against the plaintiff for the damages already done, and for an injunction to restrain the plaintiff from using or interfering with the timber, except to use the old boxes and the timber on the thirty-acre tract. At the hearing evidence was introduced by each partjr, tending to •establish the allegations in their pleadings. The writing referred to does not appear in the record. The judge, after considering the pleadings and evidence, passed an order enjoining the defendant from interfering with the plaintiff, or his employees, in working or otherwise using the timber on the land in controversy, provided that the plaintiff, within ten days, give a bond to indemnify the defendant against loss in the event of his recovery in the case; and refused to grant the injunction prayed for by the defendant.</p>

<p>1. Prima facie the right of custody of an infant is in the father; and when it is insisted that the father has relinquished this right by contract, the terms of the contract, to have this effect, should be definite and certain, and the proof to establish the contract should be clear and satisfactory. Under this rule, the evidence in this case was not sufficient to authorize a finding that the father had relinquished by contract his right of custody of the infant,’ concerning the possession of which this controversy is waged.</p> <p>’2. Upon the issue as to the fitness or unfitness of the father for the custody, control, and care of the infant, the evidence was such as to allow the exercise of its discretionary power by the court below, and this court will not disturb its judgment, no abuse of discretion being made to appear.</p>

<p>Claim. Before Judge Rawlings. Tattnall superior court. October 3, 1906.</p>

Ejectment. Before Judge Hammond. Richmond superioi court. December 12, 1906. In 1905 Fannie Culbreatli brought an action against Robert Martin, to recover possession of a described tract of. land. The defendant, in his answer, denied title in the plaintiff. Tbe plaintiff relied upon a deed from Grace Kennedy to Fannie Oulbreath, dated April 25, 1892.

<p>Complaint. Before Judge Holden. Hancock superior court. December 7, 1906.</p>

Petition for injunction, etc. Before Judge Wright. Eloyd superior court. September 27, 1906. Held: and the result was reported to be in favor of annexation by a vote . of 65 to 63; that before reporting the result the managers recounted the vote, and this count resulted in 65 votes for and 64 votes against annexation. 128 persons had voted at the election.

<p>Complaint. Before Judge Littlejohn. Crisp superior court. October 25, 1906.</p>

<p>Petition for injunction. Before Judge Wright. Floyd superior court. December 31, 1906.</p>

<p>Complaint for land. Before Judge Mitchell. Colquitt superior court. October 2, 1906.</p>

Motion to set aside judgment. Before Judge Mitchell. Colquitt superior court. December 17, 1906. Ford, as administrator of Graves, instituted his action of ejectment against W. S. Clark, returnable to the April term, 1906, of Colquitt superior court. At the next term a verdict was rendered in favor of the plaintiff, and a judgment entered thereon.

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

Action on bond. Before Judge Pendleton. Eulton superior court. December 14, 1906.

<p>Complaint. Before Judge Rawlings. Johnson superior court. September 20, 1906.</p> <p>L. J. Claxton, as executor of the estate of W. Gb Sammons, deceased, brought suit against Mrs. Lizzie Lovett, as principal, and R. T. Lovett, as security, on a promissory note, for stated amounts ■of principal, interest, and attorney’s fees. Mrs. Lovett filed an answer, denying the indebtedness, and alleging that she was not the principal on the note, but that her husband, R. T. Lovett, was the principal, and she was security, and that none of the amount so borrowed was ever received by her ór used by her in any way whatever; and also alleging that she signed the notes as security under duress. On the trial Mrs. Lovett testified that she “never got any money from Mr. Gr. W. Sammons.” Hershal Lovett testified that he had heard “Papa” tell Mr.'Sammons that if he could get one thousand dollars he thought he could pull through, and his papa told him that he had loaned it to him; that he heard Papa tell Mama he wanted her to come into the room and sign the note he was going to give Mr. Sammons; that he did not see his mother sign the note, and could not swear that the note in evidence was the note his father had reference to. Lou Anna Lovett testified, that she did not see this thousand-dollar transaction; that she heard her father and mother discussing it; that about two or three days before the signing of the paper her father came home drinking, and came into the room where her mother was, and told her that he wanted her to sign the paper so that he could get a thousand dollars to help out in the mercantile business; that she did not want to sign it, and he used an oath and told her she would sign it; and that about that time he got mad with her mother and drew out his pistol; that he first choked her, and she told him that if he did not stop she would call Hcrshal; and that she did call Hershal, and her father went out of the room. The jury returned a verdict in favor of the defendant. The plaintiff made a motion for a new trial, which was overruled, and the plaintiff excepted.</p>

<p>Action for breach of contract. Before Judge Brand. Banks superior court. Octpber 8, 190C.</p> <p>Edwards filed his petition against Hale, alleging, that the defendant was indebted to him in the sum of $250 on account of the breach of a partnership agreement; that thej'- entered into an oral agreement to form a partnership under the name of “John P. Hale, Proprietor;” that Hale was to furnish the capital to start the business; that both were to rent a house, and Edwards was to conduct the business and take out a reasonable amount for his support, and the profits and losses were to be borne equally; that the plaintiff went to work in good faith and built up a good business, which was increasing daily; that there was no time especially agreed on as to how long the partnership should continue, hut it was understood that it was not to be terminated without three months notice; and that notwithstanding such agreement, the defendant, without any .notice to petitioner, took charge of the business and refused to allow him to participate therein, and deprived him of all his rights as a partner. The petition concludes in the following language: “Your petitioner further shows, that, being turned out of the business without any notice, he was out of employment and lost his time and profits for three months, which he was entitled to, all to the value of said $250, which the said defendant is justly indebted to petitioner.” The defendant filed an answer in which he denied all liability. At «the trial the plaintiff testified that the agreement was as set forth in the, petition. The testimony of the defendant was to the effect, that there was no partnership whatever; that the plaintiff was simply employed to conduct the business; and was to be paid for his services one half of the profits; and that he had no interest in the business, and was not liable in. any way for the losses; that for a sufficient cause he was discharged, and that all that was due him, under the terms of the agreement, had been tendered him, which he had refused to receive. ' The trial resulted in a verdict for the defendant, and the plaintiff assigns error upon the refusal of the judge to grant a new trial.</p>

Action for damages. Before Judge Kimsey,,,.. Habersham superior court. December 3, 1906.

<p>Petition for injunction. Before Judge Edwards. Polk superior court. April 1, 1907.</p> <p>Nancy Hicks and others brought an equitable petition against John Portwood and another, alleging, that they were the heirs at law of John Hicks, who died seized and possessed of two described lots of land; that there was no administration on his estate; that John Portwood was in possession; that they claimed title to the same, and were entitled to recover the land and mesne profits; that they were informed that Portwood had sold the timber thereon to his codefendant, Williams, who was about to move a sawmill upon the land and cut all of the timber thereon. The prayer was for the recovery of the land and mesne profits, and for an injunction to prevent the defendants from cutting the timber,, The petition was verified by the affidavit of one of the plaintiffs. The judge granted the restraining order, and set the ease down for a hearing as to the application for an injunction. At the hearing the defendants showed, for cause against the granting of the injunction, a demurrer and an answer. The answer denied title in the plaintiffs; and the defendants alleged that they were in possession under Mrs. Annie Portwood, who was the real owner of the property. When the case came on for a hearing before the judge, an order was passed making Mrs. Portwood a party defendant, and the plaintiffs then proceeded to introduce testimony. Two affidavits were tendered in evidence, which were admitted. These affidavits tended simply to establish that there was no administration upon the estate of John Hicks, and to lay the foundation for the introduction of parol evidence as to the contents of certain deeds. They related in no way to the merits of the controversy. The plaintiffs then tendered in evidence the affidavits of three of the plaintiffs. Objection was made to these affidavits, upon the ground that there was no statement of the case nor any reference to the case in the body' of the affidavits, and nothing to indicate that they were to be used in any pending litigation. The judge intimated that he would sustain the objection; whereupon one of the counsel for the plaintiffs testified, that he had written the affidavits himself; that each of-the witnesses understood that they were to be used as evidence in the case; that he had attached the affidavits to his brief, in which the case was stated; that he did not notice that the case was not stated in each of the affidavits, but the brief was attached to the affidavits and all were fastened together. The judge, in a note to the bill. of exceptions, says: “The ‘brief’ referred to purported to be a law brief, being a memoranda of legal authorities in pencil writing, and was not attached to the affidavits and was no part thereof.” One of the counsel stated that none of the clients were present; that they lived fifteen or twenty miles from where the hearing was being had; but that the affidavits could be re-executed, or new ones made, if the court would postpone the case until the following morning at eight o’clock. The court declined to postpone the case, ruled out the affidavits, and entered a judgment dissolving the restraining order and refusing the injunction. Error is assigned upon these rulings.</p>

<p>One who signs, seals, and. delivers a deed, though not named therein as a grantor, is still bound as - a grantor, and the deed is operative as a conveyance of his estate.</p>

Complaint. Before Judge Little. Muscogee superior court-November 30, 1906. J. A. Fay & Eagan Company, a corporation, brought suit against Dudley & Sons, a partnership, upon an account. The bill of particulars was as follows: “T. J. Dudley & Sons, To J. A. Fay & Eagan Co., Dr. June: 28, 1901: Shop Number 58289.

Action for damages. Before Judge Wright. Randolph superior court. November 8, 1906. J. M. Sorrels brought an action against C. R. Matthews, teacher of a public school, for damages in the sum of $300, for expelling the plaintiff’s children from the school. The petition was dismissed at the trial term, on a motion in the nature of a general demurrer, and the plaintiff excepted.

Petition for specific performance. Before Judge Spence. Calhoun superior court. December 4, 1906. In May, 1906, Elizabeth Thompson brought an equitable petition against Benjamin H. Askew, the substance of which, so far as material to the consideration of - the points made in the record before us, was as follows: On January 25, 1889, petitioner conveyed to defendant certain described realty, a copy of the instrument of conveyance being attached to the petition as an exhibit.

Injunction. Before Judge Spence. Decatur superior court. .March 16, 1907. The plaintiffs, on June 24, 1904, sold to Smith, Sims & Morea a shingle-mill and certain standing timber, and executed to the purchasers the following instrument: “Georgia, Decatur County.

Petition for injunction. Before Judge Spence. Mitchell superior court. December 29, 1906.

<p>Indictment for murder. Before Judge Edwards. Polk superior court. March 20, 1907.</p>

Before Judge Boanv DeKalb superior court. September 9, 1906. The Georgia Granite Bailroad Company desired to condemn a right of way through certain land of W. II. and S. H. Venable.. It issued a notice, under the statute, for the purpose of commencing condemnation proceedings, dated March 17, 1904.

<p>Action for damages. Before Judge Felton. Bibb superior court. January 7, 1907.</p> <p>Mrs. Emma Bay brought her action for damages against the Central of Georgia Eailway Company for the negligent killing of her husband; and the jury returned a verdict in her favor. Her petition alleged, that her husband was, at the time he was, killed, in the employment of the railway company, and engaged in work with an engine used at the time in switching cars in the yards of the company at Macon, Georgia. It was his duty to go with the engine and change the switches, that the engine might pass from one track to another in moving ears in the yard. While engaged in changing a switch, that the engine with which he was at work might change to another track, and just as he had straightened himself up and partially turned around, he was struck by another engine of the company, thrown upon the track, and killed. The nature of the work required that it should be done hurriedly. The switch was what is known as a ground-switch, and was worked by a lever which was kept in place by a heavy weight; and in order to change it it was necessary that the deceased should place himself in a stooping position, lift the lever and weight attached from the ground, and throw it to the opposite side of the switch. The switch in question was located within about ten inches of where an engine passing on the next track would extend. At the time, he was engaged in this work his back was to the engine which was approaching him from the rear, and he did not and could not have discovered the approach of the engine before he was struck by it. lie was or should have been in plain view if proper lookout had been kept by persons in charge of this engine; and if proper care had been used, his position of danger could have been discovered by those in charge of the engine, whose duty it was to have discovered him and stopped in time to prevent the injury, or at least to have given him warning of its approach. No bell was rung or whistle sounded to give her husband notice of the engine’s approach, and at the time her husband was killed the engine was being run at from ten to fifteen miles an hour, which was a dangerous rate of speed at that place, and in violation of a valid municipal ordinance of the City of Macon, which made it unlawful to run an engine at this place at a greater rate of speed than five miles an hour, and by reason of the violation of this ordinance her husband was run down and killed. The deceased was entirely free from fault and his death was caused entirely by the negligence of the agents and employees of the railroad company in placing the switch so near the track; and in funning upon him without any warning whatsoever; and in violation of the city ordinance. The earning capacity and expectancy of deceased were also set forth. By an amendment the plaintiff alleged that the engine which struck the deceased was so constructed that it was impossible for the employees running the engine backwards to keep a lookout or observe the track, because the tender was so high and wide that it completely obstructed and shut out the view of the track from those in charge of the engine, and made it impossible for them to see any one upon the track in the rear of the tender when the engine was run backwards. The engine which struck her husband was being run backwards, and no proper lookout was kept on the rear of the engine to give warning of its approach or give notice to those in charge of the same of its close proximity to. persons on the track. At the time the deceased was killed several engines of defendant were being run in that portion of the yard, and the employees engaged in work in this yard were compelled to be constantly upon the tracks of the company in this yard. This switch was negligently placed by the defendant so near the main line or lead track in the yards as to make it dangerous to the employees of. the company who were required to work therein, for the reason that employees engaged at that switch were always in danger of being struck by'engines and cars of the company running along the adjacent track; and this switch was unnecessarily and negligently placed in this dangerous position, and maintained there, in utter disregard to the safety of its employees who were called upon to discharge their duties in this yard. It wa's the duty of the company to furnish the deceased a safe place in which to work, and in placing this switch in such dangerous proximity to this track the company failed in this duty. The company, knowing of the dangerous position of the switch, and that the deceased would be called upon, in the discharge of his duties, to work at this switch, owed him the duty of giving him warning of the approach of its engine at that -time and place. This switch was so placed that by reason of a curve in the track at that place the view was obstructed by cars standing in the yard, making it impossible to discover an approaching train until it was within a very few feet of the switch.</p> <p>The defendant denied the alleged negligence; and to the verdict and judgment in the plaintiff’s favor it filed a motion for a new trial, which was overruled, and it excepted.</p>

This case was transmitted to the Supreme Court with the following certificate: “The Court of Appeals desires the instruction of the Supreme Court as to the following questions of law for the proper decision of the above-stated case, to wit: 1.

This ease was transmitted to the Supreme Court with the following certificate: “The Court of Appeals desires the instruc- tion of the Supreme Court as to the following questions of law for the proper decision of the above-stated case, to wit: 1.

Action for damages. Before Judge Parker. Wayne superior court. September 29, 1906. ' Thompson brought suit against the Southern Railway Company, to recover damages caused by a fire which was alleged to have burned certain cross-ties, a number of panels of fence, a dwelling-house, a corn-crib, and standing timber.

<p>Petition for mandamus. Before Judge Holden. Fulton superior court. March 16, Í907.</p>

<p>Action for damages. Before Judge Bawlings. Johnson superior court. September 17, 1906.</p> <p>Mrs. Cobb brought suit against the Wrightsville & Tennill® Bailroad Company, alleging as follows: The defendant has injured and damaged her in the sum of $2,000. She is the owner of certain described land. Without her knowledge or consent, about the year 1885, the defendant took possession of a strip of land extending across her tract, constructed its railroad thereon, and has since continuously used and occupied it as a right of way, and is now in possession of such strip of land, 120 feet wide by 1125 yards long. This strip is of the value of $500, and of the yearly value, for use, of $100. The construction of the railroad over her land injured and damaged it in the sum of $500, by cutting it up in "ill shape and otherwise destroying the valu® of said land.” Plaintiff’s title arose under a deed which conveyed! the land to her mother for life, with remainder to her. The life-tenant, Mary A. Crawford, died in 1884. Plaintiff was born in. 1878, and is now twenty-five years of age. Since the company illegally took possession of the land, she has had no representative who was authorized to grant to the defendant authority to construct a railroad over it; and therefore the construction and possession was illegal and a trespass; and it has so continued. She prayed damages .against the defendant for illegal occupancy of the land, for its yearly value for nineteen years, for the damage to her other land, for the value of the land so occupied, and for such other and further relief as the exigencies of this cause may demand. Attached to the petition, as an exhibit, setting out the plaintiff’s title, was a deed dated December 17, 1881. In it William T. Crawford was named as the party of the first part, and! Mary A. Crawford as the party of the second part. The consideration expressed was $61. The granting clause was, "unte said Mary A. Crawford, her heirs and assigns.” The habendumi clause was as follows; “To have and to hold the aforesaid bargained premises unto the said Mary A. Crawford, her heirs and assigns, forever in fee simple; and after her death to such child or children as she may have by the said W. T. Crawford, share and share alike. And the said William T. Crawford to the will and h-is heirs, executors, and administrators, shall the said property to the said Mary A. Crawford, her heirs, executors, and administrator, forever warrant and defend against the lawful claim or claims of all persons whatsoever.”</p> <p>The defendant demurred to the petition, on the grounds, that it set forth no cause of action; that it showed no title or interest in the plaintiff, under the allegations and exhibit attached, but under the deed the title was in Mary A. Crawford; that the action was barred by the statute of limitations, not having been filed within four years of the alleged trespass, or within four years after the removal of plaintiff’s disabilities; that any cause of action for illegal occupancy would be barred in four years; that the petition set up distinct and inconsistent causes of action, which could not be joined, and also inconsistent prayers; and that the prayers seek to recover twice for the same alleged injury. The demurrer was sustained, and the plaintiff excepted.</p>

Certiorari. Before Judge Hammond. Bichmond superior court. September^ 1906. Eliza Nugent filed with the ordinary of Bichmond county her .petition against Sarah E. Watkins, seeking to have obstructions removed from an alleged private way, under the provisions of the Civil Code, §679.

<p>Ho cause of action was alleged in the petition, and the general demurrer thereto was properly sustained.</p>

Action for damages. Before Judge Felton. Crawford- superior court. October 24, 1906.

<p>Complaint for land. Before Judge Brand. Banks superior court. November 7, 1906.</p>

Injunction. Before Judge Brand. Clarke superior court. May 10, 1907. This is an injunction suit brought by the Athens Foundry and Machine Works against the Athens Terminal Company, to restrain the latter from laying its track longitudinally in Foundry street, and from changing the course of Washington and Clayton, streets, in the City of Athens.

<p>1. A ground of a motion for a new trial, which contains an assignment of error upon the refusal of the judge to continue the ease, will not be considered when the evidence introduced on the motion to continue is not set forth in the motion for new trial nor attached thereto as an exhibit, but reference must be had to the brief of the evidence in order to ascertain the same.</p> <p>2. Exception to the allowance of an amendment to the petition can not properly be made in a motion for a new trial.</p> <p>3. Exception to a judgment overruling a demurrer to the petition, or motion to dismiss a case for the reason that the petition is insufficient in law, can not be properly made the ground of a motion for a new trial.</p> <p>4. Where the matter under investigation is whether the words or conduct of a person are malicious, the age, of the person may not, in some circumstances, be an immaterial fact.</p> <p>5. Words uttered in good faith, for the sole purpose of securing or preserving evidence to be used in the prosecution of one for a crime of which the speaker was the victim, are privileged.</p> <p>6. The answer of the defendant, when properly construed, did not contain any admission that the defendant had uttered the words charged in the petition, and an instruction having the effect to convey to the mind of the jury the impression that the answer contained such admission was erroneous.</p> <p>7. Some of the instructions complained of were calculated to weaken the defense of privileged communications, even if they did not entirely take away the defense.</p>

<p>1. When tlie hill of exceptions recites that, in an interlocutory hearing before the judge, certain documentary evidence was introduced subject to specified objections as to its admissibility, and' it does not appear whether the evidence was excluded, or any ruling upon its admissibility was made, nor is there any assignment of error thereon, no question as to the admissibility of the evidence is presented, and such evidence will be treated by this court as having been considered by the judge in arriving at his judgment.</p> <p>2. The cutting of timber by one who shows no title or claim of right should be enjoined at the instance of an owner in severalty or in common, of the timber, where the circumstances show that the trespasses are constantly recurring, and. the defendant threatens to continue to cut the timber from day to day.</p>

<p>Action for damages. Before Judge Pendleton. Fulton supe-: rior court. December 1, 1906.</p>

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

Claim. Before Judge Bartlett. Polk superior court. September 8, 1906. An issue raised, by the interposition of a claim by the Marietta Trust & Banking Co., to the levy of a fi. fa. in favor of Stewart upon certain lands alleged 'to belong to Camp, defendant in fi. fa., was submitted to the presiding .judge without the intervention of a jury.

<p>Action for damages. Before Judge Felton. Bibb superior court. December 31, 1906.</p>

<p>3. The charge was adapted to the evidence, and. impartially stated the contentions of both the State and the accused.</p> <p>i. Where the court provisionally admits evidence on the promise of the solicitor-general that he will subsequently connect the same and show its relevancy, it is not incumbent on the judge, of his own motion, to determine whether such promise has been kept and to exclude the testimony, without a request to that effect by the defendant.</p> <p>¿. The State’s counsel should not in his argument refer to the prevalence of crime in that part of the county where the crime is alleged to have been committed. The remarks here complained of were irrelevant, but afford no ground for a new trial, as no objection was made to the statement, and no ruling of the court was invoked.</p> <p>4. An explicit and comprehensive charge on the subject of reasonable ■doubt, wherein the jury are instructed in effect that if after considering the entire case they should have a reasonable doubt of the defendant’s guilt it is their duty to acquit, sufficiently informs the jury that the burden is on the State to prove the defendant’s guilt.</p> <p>{a) A statement in such a charge that the reasonable doubt of the law is one that grows out of the evidence is not erroneous because of the exclusion of any inference that such a-doubt may arise from the want of evidence, or conflict in the evidence.</p> <p>■5. There being evidence of flight to avoid arrest, it was not error to charge the jury that “flight is a circumstance when it is proven; and the jury must consider that just like they would any other fact; and determine what was the cause of the flight. Because a man fled from the scene of the homicide is not a conclusive reason that he is guilty under the law; but when flight is proven the jury must take that circumstance of flight and consider it under the same rules that they would consider any other piece of evidence in the case. In considering it, determine why he fled, if it has been proven that he fled. Was it from conscious guilt in shooting the man, or was it from fear, or was it from some other cause, some cause other than conscious guilt of having committed a crime? That is for you to determine; and when you have determined that, then you will give to that circumstance, if it has been proven, of flight, just the weight you think it ought to have in determining this ease. The mere circumstance that the man fled, when taken by itself, is not siiffieient to convict; but added to other sufficient circumstances, the jury will give it just such weight, when it has been proven, as they think it ought to have and bear in relation to the other circumstances which have been proven in the case.”'</p> <p>6. A charge in a capital ease, that “it is within the province and power of the jury, if they should find the defendant guilty, and if they believe that it ought to be so done, or if they wish it so done, to recommend that he be punished by imprisonment in the penitentiary for life; there is no rule of law by which you are to be guided in making a recommendation of that character; it is entirely a matter for your determination,” is not open to the criticism that it was calculated to prejudice the jury, and prevent them from recommending that the prisoner be punished by imprisonment for life.</p> <p>7. A new trial will not be granted because of alleged newly-discovered, evidence, cumulative and impeaching in character, and especially so-where neither movant nor his counsel submits affidavits showing their ignorance of such testimony at the time of trial.</p>

Indictment for murder. Before Judge Parker. AVare superior court. July 13, 1907.

<p>■ Injunction. Before Judge Wright. Walker superior court. September 16, 1907.</p>

<p>Indictment for murder. Before Judge Lewis. Jones superior court. June 13, 1907.</p>

Complaint for land. Before Judge Reagan. Butts superior court. March 30, 1906.

Equitable petition. Before Judge Holden. Greene superior court. May 11, 1907.

<p>1. Under tlie pleadings and evidence, there was no abuse of discretion o» the part of the court iu awarding temporary alimony and attorney’s fees.</p> <p>2. This case differs from Vinson v. Vinson, 94 &a. 492. There the wife voluntarily and without cause abandoned the husband and refused to live with him; and the husband was in debt and destitute of property or credit, and, unaided by her, his earnings were small and not more than sufficient to obtain a bare living for himself.</p> <p>3. A petition for temporary alimony pending a divorce suit or a suit for permanent alimony is in the nature of an ancillary proceeding, and does not require the issuance and service of a new process retui’nable to another term of coui't. Upon it the presiding judge issues an order nisi which is served and under which the hearing is had.</p> <p>4. Where an application for temporary alimony was coupled with an application for a writ of ne exeat, if the prayer suggested a condition for a bond to be required of the defendant which was not in accordance with law, this would not invalidate the application for tempoi’ary alimony or cause a reversal of the judgment granting it.</p> <p>5. The question brought to this court by the bill of exceptions has reference alone to the ruling of the presiding judge in granting alimony . and attorney’s fees.</p>

Indictment for murder. Before Judge Martin. Pulaski superior court. July 26, 1907. Gordon McDonald, alias J. B. McDonald, was convicted of murder for the killing of Colar Clianey. The case is before this court for review on a writ of error sued out by the accused assigning error upon the overruling of his motion for a new trial.

<p>Equitable petition. Before Judge Parker. Clincb superior court. January 14, 1907.</p>

<p>1. Construing as a whole the act of August 22, 1907 (Acts 1907, p. 193), which amended the act of 1897, creating the 'city court of Griffin (Acts 1897 p. 462), it did not, immediately upon its approval, oust the judge and solicitor of that court from office. They will continue to hold until their successors are elected and qualified in accordance with the terms of the act of 1907.</p> <p>2. The salary of the present incumbent in the office of judge of the city court of Griffin, prior to the election provided for, was not increased by the act of 1907, but remained the same as previously fixed by the act of 1897.</p>

<p>“The Court of Appeals desires the instruction of the Supreme Court as to the following questions of law for the proper decision of the above-stated case, to wit:</p> <p>“1. In a case where an action is instituted by the shipper of goods against a common carrier, on account of the civil wrong occasioned to the shipper by reason of the fact that the carrier, having received the shipment in good order, did not transport it safely but delivered it to the shipper (who was also the consignee) in a damaged condition, is negligence of the carrier a necessary allegation?</p> <p>“2. In such a case, is proof of negligence by the plaintiff material or immaterial; and would it be any defense to the carrier to show that it had not been negligent in respect to the shipment; or does the defendant’s liability turn solely upon its ability to show that the damage resulted by act of God, the public enemy, or similar cause? In construing a petition ágainst the carrier in such a case, may an allegation of the carrier’s negligence (either general or specific), through which the carrier caused or allowed the damage to occur and from which the civil wrong involved in the fact that the carrier did not transport the shipment safely (as it was under legal duty to do) arose, be treated as immaterial or rejected as surplusage?</p> <p>“3. In such a case, where the plaintiff in his petition alleges the fact of the delivery of the goods to the carrier under such circumstances as to raise the legal duty on the carrier’s part to safely transport them, and as to raise the liability on the carrier’s part for all damages to them save only such as may be occasioned by act of God or the public enemy; and further alleges a breach of this duty in that the shipper did not safely transport the goods, but caused or allowed them to receive certain definitely described injuries; and further, in addition to these allegations, alleges that the injuries to the shipment were caused by the negligent delay of the carrier (the nature of the delay having been- Specifically set forth) and by the carrier’s negligence in failing to properly attend to the shipment (the same consisting of live stock) while the same was in its possession: is a special demurrer by the defendant, on the grounds, that the acts of negligence charged against the defendant are not described, that it does not showf wherein the defendant failed to properly attend the shipment, or what would have been proper attention thereto by the defendant, properly overruled by the trial court?</p> <p>“In connection with the last question above stated: counsel for the defendant in error in the case at bar has, in accordance with the rules of this court, expressed a desire to question for the purpose of review the decision of the Supreme Court in the case of Louisville & Nashville B. Co. v. Cody, reported in 119 Ca. Rep. 371; and this court, upon a consideration of the question, being of the opinion that the decision should be modified or overruled, in accordance with the rule of court for such eases made and provided certifies the question, together with said request, to the Supreme Court.”</p>

<p>Complaint. Before Judge Hammond. Richmond, superior* court. January 26, 1907.</p> <p>Bush sued Phinizy for commissions as a broker, and recovered a verdict. A new trial was refused, and the defendant excepted.</p> <p>A number of stockholders in the Augusta Railway and Electric Company entered into a pooling arrangement in December, 1902, not to sell their stock for less than fifty cents on the dollar of its par value. The firm of Martin & Bush were designated as trustees to carry out the plan. The firm was dissolved, and Bush alone continued to act. Phinizy had seventy shares of stock covered by the pooling agreement. Martin & Bush had a number of shares. Bush and Phinizy both continued to buy stock until each of them had quite a large number of shares outside of the agreement. Altogether Phinizy had 445 shares. The Augusta-Aiken Railway & Electric Company had purchased a majority of the stock in the Augusta Railway & Electric Company. Jackson was a director in the former company. Bush ivas a stock-broker. On November 7, 1903, Bush submitted to Phinizy, for his examination, the following letter:</p> <p>“Augusta, Ga., November 7, 1903.</p> <p>“James H. Jackson, Esq.,</p> <p>“Dear Sir: — I hereby agree to give you the option of purchasing the stock of the Augusta Railway & Electric Company owned by me and represented by me as trustee, amounting to about one thousand shares, at the rate of fifty cents on the dollar, for each share of stock of one hundred dollars’ value. This option shall extend six months, from January 1, 1904. This option may be renewed for six months from the date of its expiration, upon the payment of $1.75 per share. In the event this option is exercised, there shall be added to the price of fifty cents on the dollar a sum equal to interest at the rate of 7 per cent, per annum on the purchase-price of the said stock, and the said interest shall be calculated from the date of this option up to and including the date upon which it is exercised. There shall be paid for this option the sum of $40,000 First Mortgage Collateral Trust bonds of the Augusta-Aiken Bailway & Electric Company. In the event this option is exercised, and the stock paid for, said bonds shall be surrendered and returned to you. In the event this option is not exercised, the bonds shall become the absolute property of the stockholders of the Augusta Bailway & Electric Company, whom I represent and whose stock is above referred to. Both the stock and the bonds referred to above shall be deposited in the custody of the Georgia Bailroad Bank, or of the Equitable Trust Company, both of this city, as I may elect, to be held in trust for the owners of the stock, on which the option to buy is given.</p> <p>"Very truly yours, Wm. E. Bush.</p> <p>"In case any dividend is paid on the Augusta By. & Electric Co. stock during the life of option, such dividend shall be held by the trustee, and shall be paid ové^ to the purchaser in case the option is exercised. W. E. B.”</p> <p>Whereupon Phinizy wrote Bush the following letter: .</p> <p>" Augusta, Georgia, Nov. 7, 1903.</p> <p>"Sir. W. E. Bush, City.</p> <p>"Dear Sir: — I authorize you to sell for me three hundred and seventy-five shares of the Augusta Bailway & Electric Company stock at 50 cents on the dollar, in accordance with a certain letter of even date, written by you to Mr. James IT. Jackson. There is to be no attorney fees charged against me on these particular shares of stock. I am to pay, for your service in making this trade, the same amount per share that the other shareholders will pay you. You are authorized also to sell my seventy shares in pool on same terms, except as to attorney’s fees. This authority is good for thirty days only, to expire December 7, 1903.</p> <p>"Very truly yours, Leonard Phinizy.”</p> <p>Bush then delivered to Jackson his letter and also a letter stating that "In accordance with our conversation of this morning, I beg to advise you that the stock of the Augusta Bailway & Electric Compaq represented by me and referred to in my letter of yesterday is as follows:” (Setting out the names and numbers of shares held by each owner). Jackson went'North to consult his principals, and on November 17 he sent to Bush the following telegram: "New York, November 17th. Wm. E. Bush, Augusta, Ga. Consider negotiations closed. Meeting of Board called for Saturday to ratify same. Keep strictly confidential.” The bonds of the Augusta-Aiken Company were in the hands of trustees in Baltimore. They declined to certify such bonds for the purpose of buying an option, and Bush and Jackson had negotiations with a view to changing the proposed trade so as to sell the stock itself on a credit, with the bonds as collateral security. On November 21, 1903, the board of directors of the Augusta-Aiken Railway & Electric Company passed the following resolution: “Resolved, That Mr. James U. Jackson, in behalf of the Augusta-Aiken Railway & Electric Company, be authorized to negotiate the purchase of 1,154 shares of the capital stock of the Augusta Railway & Electric Company, represented by Wm. E. Bush, and such additional stock as may be acquired other than that held by the General Electric Company, upon the following terms: $50.00 per share, payable twelve months from January 2, 1904, for which the company will give its negotiable note with interest at the rate of seven per cent, per annum, secured by the collateral trust five per cent, bonds of this company at 40 per cent, of the par value of the sarnie.” On November 30, 1903, Bush wrote Jackson the following letter:</p> <p>“November 30, 1903.</p> <p>“James U. Jackson, Esq., City.</p> <p>“Dear Sir: — In accordance with our conversation this afternoon, I beg to advise you that Mr. Leonard Phinizy, who owns 445 shares of the Augusta Railway & Electric Company stock, has positively declined to ratify any trade made for his stock along the line described by us, viz.: That a sale of stock be made outright to your company. That the company should give its note secured by the stock and certain number of bonds as collateral. Such a trade would be acceptable not only to me, but to all of the other stockholders whom I represent. I have endeavored to have Mr. Phinizy recede from his opposition, but ineffectually. I enclose you herewith a copy of the letter addressed to me by Mr. Phinizy on November 7th, authorizing me to make you a proposition contained in my letter of even date. As you will note from Mr. Phinizy’s letter, I am authorized to make such a trade up to December 7th. In the event you find it possible to consummate the transaction along the line of my letter, I would respectfully suggest that you act very promptly, as my authority from Mr. Phinizy expires thirty days from that date, November 7th, and in the event we do not trade with him now, I fear that I may not be able to do so later except for cash.</p> <p>“Very truly yours, fm, E. Bush.”</p> <p>On December 5, 1903, the board, of directors of the Augusta-Aiken Railway & Electric Company took the following action, as shown by the minutes: “The proposition of W. E. Bush, for himself and his associates, to sell to the company their holdings in the capital stock of the Augusta Railway & Electric Company 'was again presented and fully discussed. TJpon motion of Mr. Jackson, seconded by Mr. Rutherford, Mr. Jackson was authorized to send a telegram as follows: To Wm. E. Bush: ‘We accept your proposition giving us option for twelve months, with interest at seven per cent, per annum from' date option is signed until payment/” On the same day, Jackson sent to Bush the telegram above stated. Also during that day Bush telegraphed to Jackson as follows: “Telegram received and we stand ready to close. When will you be home?” And Jackson replied: “Meet me my office Monday to-close details.” On the same day, Bush testified, ho wrote to Phinizy enclosing a copy of the telegram from Jackson and of his reply. As to what transpired after that time, the ■evidence is very conflicting. Bush’s evidence tended to show the following state of facts: He at once had his attorney and Jackson to begin the preparation of a formal contract carrying out the terms of the sale of the option, which would be satisfactory to Phinizy and to the companjq on the basis of Bush’s letter to Jackson of November 7. Jackson was willing to carry out 'the contract. Bush stated to Phinizy that the transaction was ready to be closed when they would sign the agreement. He went to Phinizy quite a number of times with memoranda of various kinds, embodying the provisions of the trade, but to all of them Phinizy would raise some objection, — not to the substance, but to matters of words and expressions. He did not retire from the trade, or express himself as dissatisfied with it, or as refusing to carry it out. On the contrarjq he was profuse in his expressions of pleasure at the profits he was going to make. On the 16th of December Jackson was pressing Bush to know when Phinizy would carry out the trade. A memorandum of agreement had been prepared, and Bush took it to Phinizy and asked if the latter would approve it, sajdng that if so he would send it off to the company for signature. Phinizy declined to sign the agreement or to approve it. Bush asked him why, to which he replied simply that he .would not do so. Bush produced the letters and telegrams, and asked him to state in what particular the contract presented varied from the trade made under his authority, the purpose being to send the contract to the company for -execution. He did not dispute the authority, but refused to deliver the 445 shares of stock until Bush agreed t'o relinquish his compensation. After some discussion, apprehending serious financial loss and liability on account of his agreement with Jackson if the trade should not proceed, Bush consented to leave the matter of his compensation to the sense of right and justice of Phinizy, and wrote and delivered to him the following letter:</p> <p>“December 16,. 1903.</p> <p>“Leonard Phinizy, Esq., City.</p> <p>“Dear Sir: — In the matter of the proposed sale of your Augusta Bailway & Electric Company stock, I beg to say that I am willing so far as your stock is concerned to leave the matter of my compensation to your sense of right and justice.</p> <p>“'Yours truly, Win. E. Bush.”</p> <p>After that the contract was signed by Phinizy on December 28. On January 2, 1904, the board of directors of the Augusta-Aiken Bailway & Electric Company passed the following resolution : “Besolved, That the proposed agreement between this company and Leonard Phinizy, for the acquisition- of 445 shares of the capital-stock of the Augusta Bailway & Electric Company, be entered into, and that the President and Secretary of this company be, and they are hereby, authorized and directed to execute the said agreement for and on behalf of the company, ánd to do all other things that are necessary and convenient to carry out the terms and conditions of the same.” The agreement was then signed by it through its officers. In April following, the option was exercised and the stock was bought outright and paid for in cash. The agreement which was signed provided for interest to run from its date; that there should be paid for the option $18,000 in bonds (covering the proportion which' Phinizy’s shares bore to the entire shares sold); that within ten days from the execution of the written contract, the bonds and stock should be deposited with a named company; that any dividends declared should be paid to Phinizy, but should be treated as a part of the purchase-money if the option should be exercised. The owners of stock, other than Phinizy, made a separate agreement for the sale of the stock, and this was also carried out and the stock paid for.</p> <p>Phinizy contended, in brief, as follows: He had assisted in the •effort to sell his stock, but several efforts to reach an agreement had failed. The authority to make the contract set out in his letter of November 7, 1903, was not carried out within the timé limited, but had expired. He neither agreed to continue it nor waived any of the terms of his letter. On the contrary, after the failure of consummation by December 7, he distinctly informed Bush of his refusal to proceed and of the termination of negotiations. After that time Jackson negotiated, with him with a view to making a different trade, but without success. On December 16 Bush came to him and again sought to negotiate with him in regard to his stock, saying, “I have got a trade now that will ■stick,” and that the trust company had changed their minds and would now release the bonds to secure an option. At the same time he presented, for the approval of Phinizy, the written agreement which had been prepared. Phinizy demurred, but Bush urged him to “come back into the agreement” and sign the paper. Hnder the former negotiations he had heard that Bush intended to charge $3.25 on each share, though Phinizy had insisted that a meeting was to be called to fix the compensation. When he was urged to again make an agreement, he declined to do so until the question of compensation was determined. He told Bush that injio event would he pay more than $1 per share, and that he did not think lie should pay anything, as he had himself aided in the efforts to bring about a sale. Bush offered to leave the matter of his compensation to Phinizy’s sense of right and justice, and wrote and delivered the letter above quoted. Thereupon, under the terms of this letter, Phinizy agreed to proceed, and afterwards, on December 28, signed the contract, which was subsequently approved by the directors of the company and signed, and at a still later date carried out by the exercise of the option.</p> <p>The jury found for the plaintiff the amount sued for, with interest. To a refusal of a new trial the defendant excepted.</p>

<p>Petition for mandamus. Before Judge Brand. Clarke superior court. March 16, 1907.</p>

<p>Eviction. Before Judge Kimsey. Iiall superior court. November 9, 1906.</p>

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

Condemnation. Before Judge Eoan. DeKalb superior court. December 1, 1906. The Town of Decatur instituted condemnation proceedings against the Georgia Eailroad and Banking Company and the Louisville and Nashville Eailroad Company, as provided in the Civil Code, §4657 et seq., for the purpose of opening a new street, in the town, across the track and right of way of these companies.

<p>1. A petition which contains a prayer for specific performance and general relief will not, under the clause for general relief, authorize the grant of any relief which is not germane to the prayer for specific performance,</p> <p>2. An executory contract for the sale of land by an infant is voidable at his election upon his attainment of majority.</p> <p>(а) The rule existing under the Civil Code, §3650, which authorizes an infant to make a binding contract in connection with the business in which he may be engaged, by permission of his parent or guardian, as an adult, is not applicable to a single transaction for the sale of land.</p> <p>(б) Where an infant enters into an executory contract for the sale of land, receives the purchase-price and expends the same, and, after his attainment of majority, has neither the money nor other property in which the same may have been invested, the mere fact of his omission, upon arriving at majority, to tender back the purchase-money will not amount to a ratification of the contract nor prevent ' an election to disaffirm the sale.</p> <p>(c) A declaration in a suit for specific performance of a contract” for the sale of land, which shows affirmatively that the contract was made and the purchase-price paid while the defendant was a minor, and that the defendant, before attaining majority, had expended the money in ■ such way as that he did not have the money or any property in which the money may have been invested, after arriving at majority, is subject to general demurrer upon the ground that the declaration shows upon its face such facts as would defeat the plaintiff’s right to specific performance of the contract.</p>

<p>Equitable petition. Before Judge Hammond. Columbia superior court. September 7, 1906.</p> <p>The petitioners, as sole next of kin of Dickerson Reynolds and Seaborn A. Reynolds, filed their petition to the March term, 1906, of Columbia superior court, against Thomas E. Norvell, individually and as administrator with the will annexed of Dickerson Reynolds, wherein they set up the following state of facts: Dickerson Reynolds died in 1886, and his will was duly probated in 1887. Gilpin, the nominated executor, duly qualified as such. He left surviving him his wife Elizabeth, and Seaborn A., a son by a former marriage. Seaborn A., at the time of the testator’s death, was a lunatic, and was confined in the lunatic asylum. By his will certain realty, which is the subject-matter of the present suit was devised to his wife for life or during widowhood, and upon her death or marriage “one half of the same to go to” his son, “provided he should be restored to sanitjr and sound mind, and the other half expended” as set out in the second item of his will. The material part of the second item is as follows: “In the event of the death or marriage of my said wife Elizabeth before the restoration of my said son to sanity, it is my will that my executor shall sell and dispose of all my property, upon such terms as they deem best, either publicly or privately, without the order of any court, and my executor . . shall not be required to give security; all the proceeds after the sale shall be expended in endowing the graves and erecting suitable monuments over the same of myself and my present and former wife and said son at the grave-3rard known as the Gilpin graveyard.” Gilpin having been adjudged. insane, Norvell, the defendant, was appointed administrator with the will annexed in 1895. As such administrator Norvell in 1898 applied for and had set apart to the widow as a year’s support the property devised, and the return of the appraisers setting this property aside was duly recorded in 1898. Upon the death of her husband the widow had entered upon the land bequeathed' to her, accepted the devise of the life-estate, and lived thereon as tenant for life till the same was set aside to her as a 3’ear’s support. In 1899 the widow conveyed the land in question to Norvell. Subsequently, in 1902, she di’ed, and since her death Norvell has taken possession of the land claiming it under the deed from the widow. The son died in 1891, without restoration to sanity. It is alleged that an intestacy resulted as-to the one half of the remainder devised to the son, and that, the life-estate devised to the wife was evidently intended to be in lieu of a year’s support; that the proceedings upon the application for year’s support were void by reason of the delay of eleven years after testator’s death in making the application, the court by reason of this fact being without jurisdiction to-entertain the same. It is charged that the year’s support is also, void for fraud in this: that after having accepted the legacy intended by the testator in lieu of a year’s support for eleven years, and having, at the time of the application therefor, no right thereto, “yet, nevertheless, for the illegal and fraudulent purpose of divesting out of the estate of said testator the fee in said tract of land and of vesting said fee in said Elizabeth Reynolds, and thence into said Thomas E. Norvell, individually for their own use and benefit, to the destruction of said will and the rights of your petitioners in said testator’s estate, said Elizabeth Reynolds and said Thomas E. Norvell, individually, and as administrator as aforesaid, in 1898, illegally and fraudulently combined and confederated together to divest the fee in said -tract of land out of the estate of said testator into said Elizabeth Reynolds, under color of a setting apart said tract , as a year’s support unto the said Elizabeth,” for the purpose of conveying it to Norvell; and to effectuate this combination and confederacy, Norvell, as administrator, applied for the year’s support, and the widow conveyed the land to him, concealing from the ordinary “said lack of right in said Elizabeth to a year’s support . and the real purpose for which the application was made,” and obtained the year’s support, and petitioners “had no notice or means of notice of said combination and confederacy until very shortly, to' wit, one month before the filing of this writ.” It is further alleged that Norvell refuses to turn over one half of the property to petitioners, and has failed to apply the other half towards placing monuments over the graves of decedent’s family, etc., as directed in the will. The prayers ar.e, that the year’s support be declared void, the deed to Norvell canceled; that petitioners recover one half of the property and mesne profits; that Norvell’s letters of administration be revoked, and a trustee appointed to take charge of the other half of the property and the mesne profits thereof; and that the trustee be directed to sell the one half undivided interest, and apply the proceeds to “the execution of the mortuary trust in said will specified; and in the event it should appear that the intention of testator was to apply the entire remainder to the mortuary trust, then that the trustee be directed so to apply the same.” The defendant filed his demurrer, which was sustained, and plaintiffs excepted. .</p>

<p>Injunction and receiver. Before Judge Worrill. Early superior, court. April 11, 1907.</p>

<p>1. Where a writ of habeas corpus was sued out before the ordinary, and his decision was carried to the superior court by certiorari, a writ of error to the decision of the judge of the superior court thereon was properly made returnable to the Supreme Court, and the jurisdiction to pass on such a case was in this court, not in the Court of Appeals.</p> <p>2. Under the evidence there was no error in overruling and dismissing the certiorari.</p>

Foreclosure of lien. Before Judge Kimsey. Habersham superior court. September -11, 1906.

<p>Action for damages. Before Judge Brand. Jackson superior court. January 5, 1907.</p>

<p>Equitable petition. Before Judge Kimsey. Babun superior court. August 31, 1906.</p>

<p>Action for damages. Before Judge Fite. Gordon superior court. December 8, 1906.</p>

<p>Action for damages. Before Judge Wright. Floyd superior court. December 4, 1906.</p>

<p>Action for damages. Before Judge Wright. Chattooga ■ superior court. September term, 1906.</p>

Equitable petitioñ. Before Judge Gober. Forsytli superior court. August 29, 1906.

<p>1. \ visit of tlie widow of the deceased to the office of the defendant’s counsel, after the homicide, without the knowledge, consent, or acquiescence of defendant on trial for assassinating her husband, is not admissible against the defendant in support of a contention of the State that she was then in sympathy with him, or that she had with him, prior to the homicide, illicit relations.</p> <p>2. The second assignment of error in the amendment to the motion for new trial does not set forth sufficient facts to enable this court to determine whether or not the court below committed error.</p> <p>3. Where the court, over objection, admits evidence, with the statement that he will rule it out unless connected in point of time, and it is not thus connected, although such evidence may be inadmissible, it is not incumbent upon the court, of its own motion, to exclude it.</p> <p>4. Where a person is on trial for assassinating another, evidence of bad feeling on the part of the deceased toward the defendant, unknown to the defendant prior to the killing, is inadmissible against him.</p> <p>5. Under the evidence in this case, it was error to admit testimony against the defendant, as to differences and quarrels between deceased and his wife about the defendant, unknown to the defendant, prior to the homicide.</p> <p>6. The refusal of the court to permit counsel for defendant to ask a •witness for the State about a difficulty between him and defendant, to show his-ill feeling toward defendant, is not error, unless the witness denies such ill feeling.</p> <p>7. In view of a witness for the State declining to tell others prior to the trial what she testified to on the trial against defendant, brought out on cross-examination, and evidence of her other conduct offered by-defendant, it was not error to allow her to testify, as an explanation of her previous conduct, that she was told by another that if she told what she testified to, defendant would kill her.</p> <p>8. Where testimony is offered for the purpose of impeaching a witness, ' it is not error for the court to fail to charge the jury that the evidence offered for the purpose of impeachment should be considered by them solely for that purpose, in the absence of a written request, made at the proper time, for this charge' to be given.</p> <p>9. The defendant, who claimed an alibi, on trial for murder of another at night, could not, in support of such defense, prove that about six hours before the killing occurred, he invited another to spend the night with him at his home, about three miles from the scene of the homicide. Such a statement to another was a declaration in his own favor and was inadmissible.</p> <p>10. Under the facts of this case, evidence that the son of the deceased had spent the night with the defendant, several months before the homicide, was properly excluded.</p> <p>11. Under the evidence, it was not error to exclude testimony that the defendant’s brother offered his own horse for comparison of tracks with those found near the residence of the deceased after the homicide, which tracks the State claimed were made by the defendant’s horse.</p> <p>12. “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 case.”</p> <p>13. “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 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.”</p> <p>14. “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>15. When it appears that one juror sworn and empaneled in the trial of a murder ease had stated that defendant had killed deceased and ought to be hung; that another juror had made the same statement, and, in addition thereto, that if he “got on the jury he would hang him or. stay there till he perished;” and that another juror had stated that he believed defendant was guilty and if he was on the jury he would hang him, and there is nothing before this court to rebut the charges so made, a new trial must be granted</p>

Equitable petition. Before Judge Parker. Ware superior court. November 12, 1906. David Kirkland and a number of other individuals and firms brought an equitable petition against the Atlantic and Birmingham Railway Company, to enjoin the defendant from tearing up and abandoning the section of its line of road from the station of Guysie to the town of Nicholls.

Trespass. Before Judge Rawlings. Jefferson superior court. August 29, 1906. Smith sued the telephone company for damages resulting from the company having cut a wire fence around his premises at the time its line was being constructed. The defendant pleaded a release, which was as follows: “Right of Way. — J. W. Deam. $20.

<p>Injunction. Before Judge Littlejohn. Stewart superior court. January 30, 1907.</p> <p>Turner & Perry, a partnership, being indebted to the Britt-Carson Shoe Company for merchandise in the sum of $500, made and executed to that company two promissory notes for $250 each, containing waivers of their rights to homestead and exemption under the constitution and laws' of Georgia and of the United States. These notes were signed by Perry, one of the partners, in the name of the partnership, Turner & Perry. Subsequently Turner & Perry were, upon the application of certain creditors, adjudicated bankrupt by the proper court of bankruptcy. It appears from the agreed statement of facts that the indebtedness of said firm was $5,200, and its assets amounted to $2,298. It was also agreed that said $2,298 was all the assets of Turner and Perry, as a firm or as individuals, except the amounts which were set apart as an exemption to said parties out of their individual property, Certain property of the value of $1,400, consisting of an undivided one-half interest in 344 acres of land, belonging to Perry individually, was set apart to him as an exemption by the court of bankruptcy. The property set apart to Turner as an exemption consisted in household and kitchen furniture and a buggy, of the total value of $250. The Britt-Carson Shoe Company did not prove its claim in bankruptcy, but, after the exemption to Perry had been set apart, filed in the superior court an equitable petition against Perry, in which it alleged the facts stated above, and prayed a judgment in rem against the property set apart to Perry as an exemption, and also prayed that Perry be enjoined from selling, encumbering, or otherwise disposing of said property, until a judgment for the amount of the indebtedness on said notes could be obtained. To this petition the defendant demurred on the grounds, that there is no cause of action set forth in the petition; that the plaintiff does not show by the petition that Perry has ever waived the* right to claim homestead or exemption out of his individual property; and that -the plaintiff has no right to proceed against the individual property of this defendant until they have first exhausted their rights and remedies against the assets of the partnership. The court granted the injunction restraining Perry from selling, encumbering, or otherwise disposing of the undivided one-half interest in the 344 acres of land, which had been set apart to him as an exemption, until the further order of the court. Perry excepted.</p>

Injunction and receiver. Before Judge Spence. Calhoun superior court. February 29, 1907. Herbert Brown, Louis Brown, Kathleen Brown, Mary Brown, and Euth Madden, minors, by their next friend, filed an equitable petition in the superior court of Calhoun county, against E. W. Martin, J. 0. Exum, Mrs. W. E. Madden, B. M. Lee, Sealy & Company, The Cowart Loftin Compaq, W. L. Godwin, The Dawson Naval Stores & Lumber Company, L. II.

<p>Petition for injunction. Befare Judge Littlejohn. Lee superior court. June 3, 1907.</p>

Action on insurance policy. Before Judge Littlejohn. Sumter superior court. December 4, 1906. Clark, the administrator of Moore, deceased,, brought suit against the Mutual Life Insurance Company of New York, to recover the amount of a policy' alleged to have been issued by said company, to plaintiff’s intestate. • It appears from the record that Moore made an application -to the company for a policy of life insurance.

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

Equitable petition. Before Judge Mitchell. Colquitt superior court. December 17, 1906. This was an equitable petition filed by the plaintiff, Crosby, to enjoin the defendant, Pittman,-from trespassing or otherwise interfering with a certain tract of land alleged to belong to the plaintiff. The defendant claimed tlfe land in dispute, which consisted of about thirty-five acres.

<p>1. The general rule is that a court of equity has no jurisdiction to enjoin criminal prosecutions; and this rule is applicable to proceedings to punish for violations of municipal ordinances, which are quasi criminal in their nature. The cases in which proceedings to enforce such ordinances will be enjoined are exceptional in character.</p> <p>2. Where a municipal corporation passed an ordinance requiring streetcars on a public street extending through the town to be stopped at three designated points for the reception of passengers, in addition to those where the company itself was accustomed to stop its ears for that purpose (except one), and fixing a penalty for disobedience thereof, injunction will .not be granted to restrain the enforcement of the ordinance by prosecution, or to determine the question of its validity or its reasonableness or unreasonableness.</p> <p>3. The case arose and was decided before the passage of the act of August 23, 1907 (Acts 1907, p. 72) enlarging the powers of the railroad commission of the State; and the present decision is made without reference to that act.</p>

Complaint. Before Judge Beagan. Gwinnett superior court. January 5, 1907. Bockmore & Company, a firm alleged to be composed of M. L. Bockmore and Mrs. Bffie Bockmore, brought suit against the Bank of Lawrenceville, and alleged as follows: Defendant is indebted to the plaintiffs in the sum of $750 besides interest.

<p>Petition for injunction. Before Judge Mitchell. Tift superior court. September 7, 1907.</p>

<p>Indictment for murder. Before Judge Seabrook. McIntosh, superior court. June 22, 1907.</p>

<p>Indictment for murder. Before Judge Seabrook. Chatham superior court. July 13, 1907.</p>

<p>Indictment for murder. Before Judge Spence. Decatur superior court. July 1, 1907.</p>

Injunction. Before Judge Mitchell. Berrien superior court. August 23, 1907. W. C. Ivnight instituted suit against the Purdom Naval Stores Company, seeking to enjoin that, company from boxing and working tlie pine trees on certain described land for turpentine purposes.

<p>1. Where a bill of exceptions is filed to a judgment of nonsuit, a brief of the evidence need not be incorporated in the bill of exceptions, or attached thereto, but may, under the Civil Code, §5529, ®e approved by the judge and made a part of the record and be brought up as such.</p> <p>2. Under the evidence offered by the plaintiffs in this case, the issue involved should have been submitted to a jury; and it was therefore error to grant a nonsuit. •</p>

Equitable petition. Before Judge Felton. Crawford superior court. October 23, 1906. The Bank of Forsyth filed an equitable petition against T. J. Moran, H. P. Moran, and others.

<p>- Indictment for murder. Before Judge Gober. Cobb superior court. August 23, 1907.</p>

Claim. Before Judge Miteliell. Brooks superior court. January 28, 1907. In May, 1898, Boberts, Cranford & Company, in the superior court of Brooks county, obtained a judgment against Sallie Hiers, upon which execution was issued on June 9, 1898, which was on the same date entered on the general execution docket of that county.

Equitable petition. Before Judge Mitchell. Thomas superior - court. April 16, 1907. Thomas Adams was the owner of certain .realty which, in 1869, was duly set apart as a homestead for himself as head of a family, consisting of his wife, Georgia. Adams, and eight minor children. In 1882 he procured an order for the sale of the homestead property and the reinvestment of the proceeds in a certain tract of land.

<p>Claim. Before Judge Mitchell. Brooks superior court. May 8, 1907.</p>

<p>1. The contract sued upon was not an unconditional contract in writing, and it was not necessary that the defendant should have sworn to his answer made in the suit upon it.</p> <p>2. A plea should not be stricken because one part of it is contradictory to another part of it.</p>

Complaint for land. Before Judge Párker. Clinch superior court. May 4, 1907. Compton filed an equitable petition against D. C. Newton and II. T. Newton, seeking to enjoin said defendants from trespassing on lot of land 387, alleged to belong to the plaintiff, and to recover damages for such trespass. The defendants in their answer admitted working the timber on the land for turpentine purposes, but claimed the right to work it under a lease.to them from W. J. Peeves.

<p>Equitable petition. Before Judge Parker. Ware superior ■court. April 15, 1907.</p>

<p>1. Where an owner of property claimed that a lease was at an end, brought suit to recover possession, and refused to receive a tender of rent, or any rent pending the suit, it was not necessary, in order to prevent a forfeiture or termination of the lease, for the tenants to continue to make tenders during the litigation. '</p> <p>2. Where under such circumstances the owner brought the ease to this court, and a decision was rendered against her, but before the remittitur had been returned to the trial courts she demanded rent, some of which was not then due, and interest thereon, and, on failure of prompt payment of the amount demanded, instituted summary proceedings to dispossess the lessees as tenants failing to pay rent, she could hot prevail; and the direction of a verdict for the defendant was not erroneous.</p> <p>3. Where a lease provides for a stipulated yearly rental, but does not state when it shall be due, it is generally payable at the end of each rent year.</p> <p>4. Such annual rental bears interest from the date when it is due. To prevent interest from running, there must be a continuing tender.</p>

<p>Validation of bonds. Before Judge Kimsey. Habersham superior court. May 14, 1907.</p> <p>A petition in the name of the State of Georgia against the City of Clarkesville was filed in the superior court of Habersham county on March 21, 1907, the substance of which was as follows: Clarkesville is located in the county of Habersham and in the Northeastern judicial circuit of this State. On February 12, 1907, an election was held in that city, in accordance with the provisions of the constitution of the State and the law controlling and regulating such elections, on the question of the issuance of bonds to the amount of five thousand dollars. Eegistration for the election was had in conformity with law, and eighty-nine of the voters of the city registered for the election, the registration showing that that number of voters of the city were qualified to vote in such election. Seventy-five of such registered voters participated and voted in such election, sixty-four of them “for bonds” and eleven of them “against bonds.” Due and legal notice of the election was given by publication in a named newspaper, the official organ of the county, published in Clarkesville. A copy of this notice was attached to the petition as ah exhibit, from which it appeared that the election was held in pursuance of an ordinance passed at a regular meeting of the city council held in December, 1906. It also appeared therefrom that the original of this copy notice stated the time and place for holding the election, the amount and denomination of the bonds to be issued, the interest which they were to bear, the manner and time in which the principal and interest were, respective^, to be paid and the purpose for which the bonds were to be issued. On March 1, 1907, at a regular meeting of the city council, the mayor and all the members of*the council and the managers of the election being present, the returns of the election were opened and canvassed, and they showed that sixty-four votes had been cast “for bonds” and eleven votes “against bonds,” making-it appear that more than two thirds of the qualified voters at-the election had voted in favor • of the issuance of bonds; and the result of the election was then and there declared in favor of the issuance of bonds. In accordance with the statute for such cases provided, the solicitor-general of the circuit was, within twenty days after the result of the election was so declared, notified in writing that such election had been held and of the result thereof; a copy of the notice being attached to the petition as an exhibit. The petition ■ itself then set forth in detail the. amount of the bonds, their denomination, the purpose for which they were to be issued, the interest they were to bear, when the. interest was to be paid, when the principal was to become due- and to be paid; and alleged, “The indebtedness to be created by the issuance of said bonds when added to all the other indebtedness of said City of Clarkesville will not exceed the constitutional' limit, that is to say, will not exceed seven per centum of the assessed valuation of taxable property of and in said City of Clarkesville. It is further alleged: “All the requirements of the law respecting the holding of said election, the declaring the result of said election, the service of said notice, and the issuance of said bonds have been fully met and complied with, and the issuance of said bonds by said City of Clarkesville will conform in all respects. with the laws of said State.” The city filed an answer, properly verified by the mayor and councilmen, in which all the allegations in the different paragraphs of the petition were admitted to be true. T. G. Spencer and eight other citizens and taxpayers of the city intervened and filed a demurrer to the answer of the city, as well as an answer to the petition, in which they set up various grounds why the bonds should not be validated. The grounds of the demurrer were: The answer of the city did not set out a copy of the ordinance calling the election, nor a copy •of the notice required to be published thirt3 days before the election, nor a copy of the tally-sheets and list of the voters at the election, nor set out that a registration book was kept according to law and the ordinances of the city; and, “because said answer does not set out-any sufficient fact or facts which will authorize a legal judgment validating the bonds proposed to be issued, and said answer is wholly insufficient and void.” The demurrer was ■overruled. On the hearing the court held that the petition and the answer of the city made out a prima facie case, and that the burden was upon the intervenors to show that the bonds should not be validated, for the reasons set out in their answer. Upon the conclusion of the evidence and the argument, the court rendered a judgment validating the bonds. The intervenors brought the case to this court upon a bill of exceptions, in which error is assigned upon the overruling of their demurrer to the city’s answer, and upon the ruling of the court that the burden was upon the intervenors of showing that the bonds should not be validated. The only other assignment of error is, that “The court rendered judgment sustaining the petition and authorizing the validation of the proposed bonds; to which ruling the intervenors then and there excepted and now except and assign the same as error.”</p>

<p>Petition for injunction. Before Judge Little. Taylor superior court. September 14, 1907.</p>

<p>Motion to dismiss the writ of error.</p> <p>In his certificate to the bill of exceptions the judge states: “ This bill was tendered to me January 11, 1907. It was delivered to counsel for defendant on same date, to note their exceptions,, if any. It was returned to counsel for plaintiff on Feby. 10th, by counsel for defendant, with some sixty or seventy objections, covering some eight or ten typewritten pages, noted. On April 12th, 14th, and 15th, counsel for both parties appeared and discussed the objections, and the bill of exceptions was agreed upon,' and was taken by counsel for plaintiff in error to be recopied, and the bill of exceptions as recopied was presented to me to-day, May 23rd, 1907, for signature. This is part of my certificate.” In this court all of the parties to the record entered into a written agreement, to the effect that the statement in the certificate that the bill of exceptions was returned by counsel for defendant in error to counsel for plaintiff in error on February 10th is erroneous; that the true date of such return is February 26, 1907. Counsel for defendants in error moved to dismiss the writ of error, on several grounds, among them the following: "5. . . (&) because plaintiff in error did not promptly correct and return said bill of exceptions to the court for its signature, but on the contrary withheld the same for a period of more than sixty days after having notice of the errors and needed corrections therein; which said time constitutes an unreasonable time in law; (c) because it appears that plaintiff in error withheld the said bill of exceptions from February 10th, 1907, until May 23rd, 1907, a period of more than seventy days, before returning the same to the court to be certified, which said time constitutes an unreasonable time in law; (d) that it appears that, after said bill of ex-ccptions had been finally agreed upon as being correct, plaintiff in error withheld the same for a period of more than thirty-eight days before presenting the same to the court for its signature, which said time constitutes an unreasonable time in law; for each and all of which reasons . . the trial judge was without jurisdiction and without authority to sign and certify said bill of exceptions at the time the same purports to have been signed.” It appears that the bill of exceptions covers 171 typewritten pages.</p>

<p>Action on bond. Before Judge Felton. Bibb superior court. September 15, 1906.</p>

Indictment for murder. Before Judge Spence. Decatur superior court. July 17, 1907.

<p>Where a vendee of land enters into actual possession and pays the entire purchase-price, lie thereby acquires a perfect equity which is the equivalent of legal title, and upon the strength thereof can successfully defend in ejectment against the vendor, or any one claiming under him, although no formal deed conveying the legal title was ever executed.</p> <p>(a.) But full payment of the purchase-price, or tender thereof, is requisite to the establishment of such title.</p> <p>(6) In complaint for land, where the plaintiff and defendant claim from a common propositus, the plaintiff claiming- under a deed and the defendant under a prior parol purchase and actual possession at the time the plaintiff received his deed, if, in order to show full payment of the purchase-money and thereby to establish a perfect equity, the defendant relies upon certain payments made to the vendor, and others made to one claiming them under an independent contract with such vendor, and the plaintiff disputes the fact of appropriate payment, both the vendor and the other person, to whom the payments are alleged to have been made, are essential parties.</p> <p>¡(o) In the absence of such parties, an offer to pay “to whomsoever may be entitled” a certain amount which the defendant alleges is due, after taking into consideration all the payments made to both of such parties, is not a legal tender or the equivalent thereof, and, in the absence of proof of payment of the full purchase-price to the vendor, is not sufficient to show a title under the perfect-equity doctrine.</p> <p>(d) Under the pleadings and evidence in this ease, and with the parties before the court, it was erroneous to direct a verdict that the ownership of the premises in dispute be decreed to be in the defendant upon the payment to plaintiff, before a stated time, of $18.90 with interest; that if such amount is not so paid, then the claims of the defendant to the premises shall cease, and the legal title shall be in the plaintiff upon his paying to the defendant the sum of $100 with interest, less $18.90 with interest; and further, that the above payments might be made to the clerk of court, instead of the parties, to be applied as indicated.</p>

<p>1. A testator left both realty and personalty. The only item of his will-necessary to bo considered here is as follows: “I give, bequeath, and devise to my wife, Affiah Ballenger, all of my real and personal property in fee simple during her lifetime, free of all charge, to her own proper use, benefit, and behoof, with the privilege of selling or disposing of any real or personal property she may think best, except my farm on the Oostanaula river, known as the Caldwell place; she is to collect the rents of said farm and use the same.” The wife of the testator survived him, and was his sole heir. Held, that whether the testator by the terms of his will sought to carve out a life-estate in his property, or whether under his will the wife took a fee-simple title, inasmuch as there were no limitations over upon the death of the wife, she became vested with the complete title to all of the property.</p> <p>2. The wife having died, her duly appointed administrator was the proper party to caveat an application by the next of kin of the deceased husband for letters of administration cum testamento upon his estate, inasmuch as there was no reversionary interest in his estate which the applicants would have had the right to administer or to interfere with.</p>

<p>1. A stipulation in a contract for tlie shipment of live stock, requiring “that, as a condition precedent to any right to recover any damages for loss or injury to said live stock,” written notice of a claim therefor shall be given “before said live stock is removed or is intermingled with other live stock,” is reasonable and valid.</p> <p>2. The evidence showed that the plaintiff — the shipper — failed to comply with such a stipulation in this ease, and therefore was not entitled to recover damages. ■ *</p>

<p>Action for damages. Before Judge Lewis. Greene superior court. December 17, 1906.</p>

<p>X. A petition was twice amended, and special demurrers were filed thereto; the court sustained some and overruled others, but allowed the plaintiff ten days within which to meet the demurrers which were sustained. Within the time limited the court allowed a third amendment, striking the matter added to the petition by the former amendments. The effect of the elimination of the two former amendments by the last was to render immaterial the rulings on the demurrers, so far as they related to the amendments which were allowed to be withdrawn.</p> <p>2. A petition stating a cause of action, good as against a general demurrer, may be purged, by amendment, of general allegations which do not of themselves set forth a different cause of action but are inappropriate to the real cause of action declared on.</p> <p>3. The cause of action alleged in the original petition was the negligent destruction of cotton deposited at a particular place, by fire set out by •the defendant’s negligence. It was amendable by adding a more specific description of the cotton, and an amplification of the acts of alleged negligence on the part of the defendant.</p>

Petition for specific performance. Before Judge Holden. Hancock superior court. September 26, 1906. This is a suit to compel the specific performance of a contract for the conveyance of land, and for other relief. The declaration in substance alleged the following: Mrs. Guill was the owner of a tract of land. She sold it to Pearson, the plaintiff, giving him a bond for title and taking notes for the purchase-money.

<p>Action for damages. Before Judge Little. Muscogee superior court. December 8, 1906.</p>

Petition for injunction. Before Judge Holden. Elbert superior court. March 11, 1907. E. E. Hudgins and James McIntosh brought an action of trover in the city court of Elberton, against the Bank of Elberton, J. H. Blackwell, H. B. Hunter, and N. G. Long, seeking to recover a certain promissory note, alleged to be of the value of $2,890.03.

<p>1. In an action for a tort alleged to have been committed by the defendant to the plaintiff’s person, it is not error to allow an amendment claiming exemplary damages, in which it is in effect'alleged that the act complained of amounted to willful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences.</p> <p>2. One of the charges excepted to was subject to the criticism that it authorized a double finding of damages for wounded feelings, and the court erred in not granting a new trial on account of this error.</p>

<p>Action for damages. Before Judge Parker. Wayne superior court. September 29, 1906.</p>

<p>Injunction. Before Judge Parker. Coffee superior court. May 11, 1907.</p> <p>Eebecca Eicketson and her children, Fannie M. and Jesse C. Eicketson, brought an equitable petition against Eoan Floyd, to enjoin him from cutting the timber on the east half of lot 113, in the sixth district of Coffee county, alleging his insolvency, and that the damages from his cutting the timber would be irreparable. The defendant answered that he was cutting the timber as the agent of his mother, Ehoda Floyd, who owned the timber and the land upon which it grew. Ehoda Floyd, upon her petition, was made a party defendant to the case. She alleged, that she was the owner of all of lot 113,' was the widow of E. P. Floyd, and that on November 13, 1889, she made a deed to the east half of such lot to him, wherein the consideration expressed was $245; that this deed and pretended sale were not approved or allowed by an order ' of the judge of the superior court of her domicile, and, being a pretended sale by her to her husband, were void. Upon the interlocutory hearing, the plaintiffs introduced a warranty deed from Timothy Kirkland to Henry Peterson, dated July 21, 1840, and recorded October 9, 1853, conveying all of lot 113, in the sixth district of Coffee county, Ga. They also introduced a deed from Henry Peterson to Mark Lott, dated December 30, 1840, recorded January 4, 1907, conveying the same premises. They then introduced, over the objection of the defendants, a deed from the administrator of Mark Lott; a copy, from the minutes of the court of ordinary of Coffee county, of an order granting leave to such administrator to sell the land belonging to his intestate; and a certificate from the clerk of such court; which were, respectively, as follows:</p> <p>“State of Georgia, Coffee County. This indenture made this the first day of January in the year eighteen hundred and sixty seven between Elisha Lott, administrator of the goods and chattels, rights and credits and which were of Mark Lott deceased of the first part and Keuben P. Eloyd of the second part. Witnesseth, that whereas the ordinary of said county of Coffee county did at his court hold in the month of October last past to empower the said Elisha Lott as administrator as aforesaid to sell and dispose of all the real estate of the said Mark Lott deceased, and whereas the said Elisha Lott having published notice of said sale for sixt days in a gazette published in the city of Quitman Brooks and said count and having complied with all the requistins of the law therein, did on the first tuesday of this present month preead to expose the lott of land hereinafter described fore the sale at the court house between the honres in said county between the hours limited by law for sale sales and whereas the said E. P. Eloyd bought said lot of land no. 113 and for the sum of fifty three dollars which was the biggest sum bid for the said lot no. 113 the said Elisha Lott administrator as fore said sum of fifty three dollars paid the receipt where of is hereby acknowledged has granted bargain and sold the said lot of land 113 to be delivered to said E. P. Eloyd at the death of said Eodey Eloyd at closeofdowry,conveyed unto E. P. Eloyd and by these' presents does- grant bargen sell unt E. P. Eloyd and convey into Mark Lott his airs and assigns a lot of land in the 6 Destrict appling now Coffee County, known in the pland of said County as lot number 113 in the said Sixth destrict of apling now Coffee County to have and to hold the said primises to the said Mark Lott his heirs and assigns fox ever in testimony whereof the said Elisha Lott administrator has hereto set his hand and seale this day and year above written.</p> <p>John Barber</p> <p>Elisha Lott (L. S.) ”</p> <p>J. W. Overstreet, J. P.”</p> <p>“ Court of ordinary, November term, 1896. Whereas Elisha Lott, administrator on the estate of Mark Lott deceased, made application for citation for leave to sell all the land belonging to said -estate, ordered that Elisha Lott adminisrator have leave to sell said land.”</p> <p>“Ordinary’s Office — SS. I, W. P. Ward, Ordinary and ex-officio Clerk of the Court of Ordinary of said County, do hereby certify that I have compared the foregoing copy of order to sell lands belonging to estate of Mark Lott, deceased, as recorded in minutes book A’ page 331, with the original record thereof, now remaining in this office, and the same is a correct transcript therefrom, and of the whole of such original record. In testimony whereof, I have hereunto set my hand and affixed the seal of the Court of Ordinary, this the 10th day of May, 190?.</p> <p>W. P. Ward,</p> <p>Ordinary and ex-officio C. C. 0.”</p> <p>The plaintiffs also introduced a warranty deed from R. P. Floyd to Rebecca Ricketson and her two children, Fannie Missouri Ricketson and Jesse Clifford Ricketson, dated June 14, 1898, recorded January 2, 1899, conveying the east half of lot 113, in the sixth district of Coffee county, Ga., the consideration recited being, “one dollar and services to be rendered during his (Floyd’s) lifetime.” Evidence for the plaintiffs tended to show, that there were some twenty-five to forty acres of cleared land on the east half of lot 113, which had been in cultivation for many years, and that R. P. Floyd was in adverse possession of this half lot from the date of the deed from Ehoda Floyd to him until the execution of the deed by him to the plaintiffs, and that the plaintiffs were in adverse possession of the same from the date of the deed from E. P. Floyd to them until some time in June, 1905. They also introduced evidence showing the insolvency of both Eoan Floyd and Ehoda Floyd, and that the cutting of the timber in question would result in irreparable damages; which evidence was not controverted. The defendants contended that the deed from R. P. Floyd to the plaintiffs was based upon an immoral consideration, viz., a promise and contract on the part of Rebecca Ricketson of concubinage for life with R. P. Floyd. They introduced evidence tending to prove such contention, while the plaintiffs submitted evidence tending to disprove it. The plaintiffs put in evidence an affidavit of Rhoda Floyd, to the effect that she married R. P. Floyd in 1864, and that soon after the marriage he went upon lot of land 113 and lived thereon until the time of his death. In another affidavit of Rhoda Floyd, put in evidence by defendants, she said, in effect, that she and R. P. Floyd lived together for twenty years or more after their marriage, and then separated on account of his attentions to Rebecca Ricketson, and that after such separation he built a one-room house on the east half of lot 113; and further, “that the husband of deponent, after building the house above mentioned, requested this deponent to make him a deed to the east half of said lot of land, which request was refused by deponent; that the said R. P. Floyd proposed- to make a deed to deponent to the west half, thereby relinquishing whatever claim he might have, if any, to the west half, and for deponent to make him a deed to the east half, proposing in this way to divide said lot of land, but deponent, owning the entire lot, bitterly refused to make the deed; that she finally consented to make the deed in question, and did make the deed which is now relied upon by the plaintiffs in the above-stated case, all of which was done contrary to the wishes of deponent; that the deed above mentioned was not a gift; that there is a consideration expressed therein, which the said R. P. Floyd claimed to have paid, by making deponent a deed to the west half of said lot; that said deed was not authorized or approved by the judge of the suprior court as required by law.”</p> <p>A witness for the plaintiffs testified, that R. P. Floyd deeded to Rhoda Floyd the west half of lot 113, in the sixth district of Coffee county, and she deeded to him the east half of this lot; and that when Rhoda Floyd made the deed to R. P. Floyd, he took possession of the east half of the lot and built houses and outhouses and opened up a farm thereon, and lived upon the same until his death.</p> <p>When the administrator’s deed above set forth, the copy from the minutes of the court of ordinary of the order authorizing the sale by the administrator, and the certificate from the clerk of that court were offered in evidence, the defendants made the following objections to their admission: (1) They were irrelevant and immaterial. (2) The deed was not “connected with a good and perfect title from the State or any other source.” (3) It purported “to convey a reversionary interest to be enjoyed after the death of one of the defendants in the present case, and, delaying possession of the land in controversy until the death of said defendant, is not admissible as color 'of title.” (4) The order of the ordinary authorizing the administrator to sell the land was not signed or issued by the ordinary of Coffee county. (5) It does not appear from the deed that the sale was advertised the requisite number of days as required by law; and it does not appear that the sale was advertised in the official organ of Coffee county. These objections were overruled.</p> <p>The defendants offered in evidence the following affidavit of Perry Floyd: “That he is a son of E. P. 'Floyd, now deceased, and Mrs. Ehoda Floyd, one of the defendants in the present case, now in life; that deponent heard his father say, before he made the deed to the east half of lot No. 113, in the 6th district of Coffee County, Georgia, to Eebecca Eicketson, that he knew that he, E. P. Floyd, had no title to said land under the law, but that he intended to hold it with his gun or die; that deponent heard him make this statement several times; and that Eebecca Eicketson was present and heard the same.” The judge rejected this affidavit and refused . to consider it, on the ground that Perry Floyd was interested in the result of the litigation, by reason of being the son of Ehoda Floyd.</p> <p>The defendants also introduced the record of a suit brought by them against the plaintiffs in the present case, for the recovery of the east half of lot 113, in the sixth district of Coffee county, on which the timber in controversy is situated; from which it appeared that said suit had been filed, in the office of the clerk of the superior court of Coffee county, on September 12, 1905, and had been withdrawn by plaintiffs on October 2, 1906, and that the pleadings-therein showed that the same issues were raised therein in respect to the title to the land as in the present case.</p> <p>The judge granted a temporary injunction, and the defendants excepted.</p>

Equitable petition. Before Judge Boan. DeKalb superior court. September 27, 1906. John Neal, Hiram Neal, Wéíborn Neal and W. W. Beall, as heirs at law of McCormick Neal, deceased, and Bull and Alexander, as creditors of the decedent, filed an equitable petition to the superior court of DeKalb county, against Boykin, seeking to set aside or vacate a judgment of the court of ordinary of DeKalb county, appointing defendant administrator on the estate of-McCormick Neal.

<p>Action for damages. Before Judge Rawlings. Toombs superior court. October 29, 1906.</p> <p>Joyner brought an action against the railroad company, to recover damages for personal injuries. The petition alleges that the plaintiff was an employee of the defendant company, and, at the time of the alleged injury,' was engaged in the performance of his duties as a yard switchman. His freedom from fault, and various specific acts of negligence on the part of the defendant, are also alleged. The defendant filed an answer in which it denied all of the material allegations of the petition. Hj)on the trial the jury returned a verdict in favor of the plaintiff. The defendant made a motion for a new trial. All of the grounds of the motion, except the general grounds, complain of alleged errors committed by the court in its charge to the jury. The court overruled the motion, and the defendant excepted.</p>

<p>Action for damages. Before .Judge Holden. Hancock superior court. December 7, 1906.</p>

<p>1. Where several persons unite to form a corporation, apply for and obtain a certificate of incorporation, inaugurate and conduct the business described in the application for incorporation in the corporate name, and contract a debt in behalf of the corporation during the course of the business, they will not be held liable as partners by reason of a defective organization of the corporation.</p> <p>2. If, however, after obtaining the charter, they do no act indicating-acceptance of the charter, or colorable compliance with its requirements, or user of the rights claimed thereunder, they will be liable, as partners to third persons dealing with them, not in any corporate capacity, but as individuals using the corporate name solely as a trade name.</p>

<p>Claim. Before Judge Wright. Floyd superior court. December 4, 1906.</p>

<p>Petition for injunction. Before Judge Freeman. Carroll superior court. April 30, 1907.</p>

Complaint. Before Judge Beagan. Fayette superior court. September 21, 1906.

<p>Certiorari. Before Judge Reagan. Henry superior court. October 18, 1906.</p>

Action for damages. Before Judge Reagan. Henry superior court. December 18, 1906. Elliott sued the railroad company for damages caused by the burning of certain cotton which was stored in a warehouse located in the town of Stoekbridge, near the railroad track of the defendant.

<p>Ejectment. Before Judge Lewis. Jasper superior court. September 14, 1906.</p>

<p>Complaint, from Chattahoochee superior court. Practice in the Supreme Court.</p>

<p>Action for damages. Before T. T. Miller, judge pro hae vice. Muscogee superior court. November 6, 1906.</p>

<p>1. Where a demurrer to an equitable petition was overruled, and on exception to this court the judgment was reversed, when the remittitur was returned to the trial court and before it was made the judgment of that court an amendment could be offered to the petition, provided it was a proper amendment, and there was enough in the pleadings to amend by.</p> <p>2. A petition showing a plaintiff and a defendant, and setting out suffi- . cient to indicate and specify some particular fact or transaction as a cause of action, is enough to amend by. The jurisdiction of a court may be shown, and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration omitted to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted facts may be supplied by amendment.</p> <p>3. The amendment which was offered in this ease was not subject to objection on the ground that it sought to add a new and distinct cause of action to that originally involved, or that there was not enough in the original petition to amend by.</p>

<p>Claim. Before Judge Littlejohn. Stewart superior court. October term, 1906. '</p>

<p>Indictment for murder. Before Judge Hammond. Eichmond superior court. August 12,1907.</p>

<p>Petition for certiorari, from Brooks superior court.</p> <p>Practice in tbe Supreme Court.</p>

<p>Indictment for murder. Before Judge Parker., Appling superior court. August 29, 1907.</p>

<p>' Indictment for murder. Before Judge Mitchell. Berrien superior court. September 27,' 1907.</p>

<p>Complaint. Before Judge Rawlings. Toombs superior court. February 26, 1907.</p>

<p>1. The general railroad incorporation act (Civil Code, §2163) gives the management of the affairs of the corporation to a board of directors of not less than five and not more than fifteen members. The act further provides for the annual election of directors. Where stockholders attend a regular annual meeting of stockholders, they may transact the business, of that meeting, and elect officers, although a majority in interest or in number of the stockholders are not present. If at any such meeting they fail or refuse to elect directors, any stockholder may by mandamus compel thé'corporation and the directors holding over to call a meeting for the purpose of electing a board of directors.</p> <p>'2. A shareholder is not prevented from exercising his right as such because another may be beneficially interested in the ownership of the stock.</p> <p>.3. A sale of stock, by one who is a party to a pooling agreement, to some of the other stockholders, in violation of its terms, does not justify the corporation of its own motion, for that reason alone,' to refuse to recognize the validity of such transfer.</p> <p>4. Where neither the charter nor any statute or by-law of the corporation requires that stock be transferred on the books of the company, or the surrender of the certificate and the issuance of a new certificate to the assignee, any mode or form of conveyance sufficient in law to transfer the absolute title to the assignee entitles such assignee to all the rights and benefits accruing to the assignor, just as if the certificate of shares stood in the assignee’s name.</p> <p>5. A shareholder who designedly absents himself from a stockholders’ meeting surrenders no right appertaining to the ownership of his stock, except the right to participate in the meeting which he refuses to attend.</p> <p>6. Where stockholders have failed to hold a regular annual stockholders’ meeting and elect directors, a meeting of the old board of directors on the day when the stockholders should have acted, in which they resolve to hold over until their successors are elected, is not in effect a reelection of them by the stockholders for another term.</p> <p>7. Where the directors are reduced by death below the minimum number prescribed by the charter, and there is no provision in the charter or by-laws for filling the vacancy by the directors, the stockholders may supply the vacancy.</p>

<p>X. A plaintiff bringing suit for land, in statutory form, can allege facts showing title inside the petition instead of annexing thereto an abstract of title.</p> <p>2. Where, to a suit for land in statutory form, the defendant files no plea, and does nothing except to make, at the trial term, an ineffectual motion to dismiss the petition because no abstx-act of title is annexed thereto, he can not by direct bill of exceptions have set aside a verdict for the plaintiff for the premises sued fox-, on the ground that such premises are insufficiently described in the petition.</p>

<p>Indictment for murder. Before Judge Seabrook. Wayne superior court. September 20, 1907.</p>

<p>Complaint. Before Judge Mitchell. Colquitt superior court. April 3, 1907.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. May 9, 1907.</p>

<p>1. In trespass to land, where the defendant admits the plaintiff’s title, proof thereof is not required. If, notwithstanding such admission, the plaintiff offers a deed to show title to the premises, and it is admitted over objection, it is immaterial whether the objection be well taken.</p> <p>.2. In a suit to recover unliquidated damages, a defendant will not be heard to complain that the verdict is not so large as the testimony warranted.</p>

<p>1. A plea alleging that the note sued on is “without any valuable consideration,- either moral or legal’” involves only a reference to a “valuable” consideration, and does not mean that the note is without a “good” consideration.</p> <p>2. The allegations in the 6th paragraph of defendant’s plea, construed in connection with the allegations in other paragraphs of the plea, set up an issuable defense.</p>

Indictment for murder. Before Judge Martin. Dodge superior court. July 16, 1907. It is unnecessary to report the facts further than they are set out in the opinion, except to give the material portions of the prisoner’s statement, as follows: “I married the first time Jesse Bogers, who was over fifty years of age, father of Sheriff! Bogers. He was cruel and unkind to me. He shot at me and beat me, leaving knots on my head. We could not get along.

<p>1. In a prosecution for the homicide of an arresting officer, evidence which tends to show that the purpose of tlie deceased was to effect an arrest, and that the slayer was a fugitive from justice, is competent.</p> <p>2. Resolving any possible doubt, as to the admissibility of parol evidence to prove the contents of a collateral writing, in favor of the defendant, under the facts of this ease (even if error was committed) it was harmless.</p> <p>3. The evidence submitted to the court was sufficient to show that the dying declarations were made in articulo mortis, and that the declarant was, at the time, conscious of his condition, and there was no error in submitting them to the jury. The charge of the court on the subject of dying declarations was not open to the objections made against it.</p> <p>.4. Where it was shown that the bullet which inflicted the wound was metal-jacketed, and the wound was infected, it was proper to allow an expert to testify that a bullet of that character would produce infection, and that an inflammatory condition would follow.</p> <p>5. “It was not error to inform the jury that the prisoner was not subject to be cross-examined on his statement without his consent.”</p> <p>6. In a prosecution for homicide, where the State omits to offer a witness who was present at the place of the homicide, but who is not shown to have seen the killing, and relies on circumstantial evidence, incriminating admissions, and the dying declarations of the deceased, to establish the defendant’s guilt, and where the witness is in court accessible to the defendant, it is not error for the court to refuse to charge the Penal Code, §989, relating to the “presumption arising from failure to produce evidence.”</p> <p>7. An officer may arrest an escaped felon without a warx-ant; and if suclx escaped felon slay the officer, without notice of his official character, solely to prevent an ai’rest, the crime is nnxrder.</p>

<p>Indictment for murder. Before Judge Martin. Pulaski superior court. October 4, 1907.</p>

<p>1. Under the facts of this case, the motion to dismiss the writ of error is overruled.</p> <p>2. Under the evidence introduced, it was error to direct a verdict for the defendant.</p>

<p>Where plaintiffs seek to enjoin a defendant from interfering with growing trees, alleging title thereto as sole heirs at law of a common grantor, but prove, without objection, ownership of the land as sole heirs at law of the only heir at law of such grantor and his deceased wife, and the entire evidence does not disclose any title or right of possession to the timber in any person other than the plaintiffs, it is error to direct a verdict in favor of the defendant because plaintiffs fail to prove title in the manner alleged.</p>

<p>Eviction of intruder. Before Judge Pendleton. Eulton superior court. Nay 24, 1907.</p>

<p>Ejectment. Before Judge Hammond. Richmond superior court. April 22, 1907.</p>

<p>Action for damages. Before Judge Parker. G-lynn superior ■court. March 9, 1907.</p> <p>Mrs. H. B. Randolph brought suit against the Seaboard Air-Line Railway, to recover damages for the homicide of her husband. On the first trial a nonsuit was granted. Randolph v. Brunswick and Birmingham R. Co., 120 Ga. 969 (48 S. E. 396). The suit was rebrought, and resulted in a verdict in favor of the plaintiff for $9,127.20. A motion for a new trial was made. During the argument the presiding judge “expressed his disapproval of the verdict in said case, as being for a greater sum than ought to be approved by him under the evidence; . . that he would not approve a verdict in said case in favor of - the said defendant in error exceeding in amount the sum of $6,500.” After this statement counsel for the plaintiff wrote off from the verdict all in excess of the sum thus indicated by the judge as satisfactory to him. An order was then passed reciting, that, “It appearing to the court in the above-stated case, that the plaintiff, Mrs. H. B. Randolph, has voluntarily written off and reduced the verdict and judgment in her favor, so as that the said verdict and judgment thus amended -and so reduced and written off by her voluntarily be and remain the sum of sixty-five hundred dollars ($6,500),” the motion for a. .new trial was overruled. The defendant excepted. There w'ere assignments of error on the refusal of a new trial. One of the special assignments complained that the court erred in overruling and denying the motion and amended motion for a new trial upon the grounds therein contained, “after and notwithstanding said plaintiff had written off the excess and reduced said verdict and' judgment complained of in said case to the sum of $6,500.”</p>

<p>Injunction. Before Judge Pendleton. Butts superior court. May 21, 1907. •</p> <p>This was a petition by the Jackson Banking Company, a corporation, against Butts Count}, the county commissioners, and the treasurer of the county, for injunction and other relief. In the petition it was alleged, that the Jackson Banking Company (hereafter called the bank) loaned to the county, at different dates between February and October, 1906, certain sums of money, and these loans were evidenced by notes, copies of which were set out. The money was borrowed for the purpose of providing present funds for the immediate payment of county warrants, in anticipation of taxes which could be legally levied; it being the agreement between the county and the bank that the notes were to evidence the sums advanced by the bank during the current year, and they were made payable at times when it was anticipated the taxes would be in the treasury. The money so advanced upon these notes was placed to the credit of the county on the bank’s books. It was agreed that the money was to be actually paid by the bank to the holders of the county warrants, and pursuant to the agreement the bank paid the money to the warrant-holders and stamped the warrants paid. A list of the warrants was attached to the petition. In a few instances some money was paid upon the check of the treasurer, these checks actually representing the amounts of warrants turned over to the treasurer; and the treasurer having no funds to meet the checks, they were used in lieu of the warrants. It was agreed that the county would levy a sufficient tax to cover the amounts so actually advanced to defray legitimate expenses of the county. It was alleged that the present board of commissioners denied liability on the notes and refused to reimburse the bank for the money paid by it to warrant-holders; that the fund in the hands of the treasurer was derived from taxes levied for the year 1906, and was sufficient to pay the bank for the moneys expended for the countyr’s benefit; that the commissioners had issued other warrants on this fund to pay claims of inferior dignity to the bank’s claim, and that the funds in the( treasury were insufficient to pay the demands of the bank and other warrant-holders. The prayers were, for judgment on the notes, but, if the contract 'of loan be declared illegal, that the bank be decreed the owner of the warrants which it paid, and be subrogated to all the rights of the several warrant-holders; for mandamus; and for injunction to restrain the disbursement of the fund in the treasury to warrants of inferior dignity, and to restrain the payment of any warrant so as to reduce the funds below the bank’s claim. The court passed an order calling on the defendants to show cause why the writ of injunction should not issue, and granted an ad interim, restraining order. The defendants showed cause by way of demurrer and answer, wherein the liability of the county was denied. On the interlocutory hearing an injunction was granted, and the present bill of exceptions is taken to this judgment.</p>

<p>1. Whether under the facts of this ease the parties plaintiff and defendant were strictly and technically tenants in common, their rights in and relationship to the property in controversy were, so closely analogous to the rights and relationship of tenants in 'common, in and to the property held in common, that the plaintiff was entitled to the same relief against the defendants as one cotenant would be entitled to against another cotenant who seeks to interfere unlawfully with" the legitimate use and enjoyment of the common property.</p> <p>2. In case of injury to the common property, or of unlawful- interference with its use and enjoyment by a eotenant, relief may be had by injunction at the suit of the other cotenant.</p>

<p>1. The petition as originally filed was against several defendants. It contained allegations which were appropriate and sufficient to constitute a cause of action in complaint for land. It also contained allegations appropriate to a petition-for equitable relief, such as the grant of .injunction and appointment of a receiver to collect rents. The allegations were such as to indicate a purpose upon the part of the pleader to sue for the recovery of the land and likewise to obtain equitable relief of the character mentioned; but the only prayers were: (a) for process requiring the defendants to appear at the next term of court and answer the complaint; (6) for the appointment of a receiver to collect and preserve the rents pending the litigation; (c) for general relief. Held: Upon the trial it was not erroneous, over the objection that it would add a new cause of action, to allow the defendant to amend: (a) By alleging that he did not at an earlier date proceed with the administration and sale of the property, because of the existence of a homestead claim thereto asserted by the defendants, which did not expire until July, 1903, and that the defendants did not hold adversely to him until after the expiration of the homestead estate. (&) By striking all of the defendants except two, and electing to proceed against them for the recovery of the land and mesne profits only, (c) By adding a special prayer for the recovery of the land. See, in this connection, Civil Code, §5104; Eagle & Phenix Mills v. Muscogee Mfg. Go., 129 Ga. 712.</p> <p>2. Amendments of the character mentioned in. the first headnote were allowed during the progress of the trial. The several amendments cured any possible error which the court may have committed on the trial, before the amendments were allowed, by refusing on oral motion to dismiss the petition, on the grounds: (a) that there was no equity in the plaintiff’s petition; (6) that the plaintiff had an adequate remedy at law by a suit in ejectment; (c) that certain of the defendants originally declared against, other than those retained in the suit after amendment, were not served. The suit as amended was sufficient as a complaint for land, and it was immaterial whether other defendants, against whom no relief was sought, were served or not.</p> <p>3. Where the head of a family dies after'his property has been set apart, under the constitution of 1877, as a homestead for the use of his family, but before the termination of the homestead, the administrator upon his estate, as against beneficiaries of the homestead remaining in possession, does not, by virtue of an order from the court of ordinary, directing sale of the homestead -property for the purpose of paying debts and for distribution, acquire a present right of entry.</p> <p>(a) The ordinary has no jurisdiction, by order or otherwise, to deprive the members of the family of the use of the homestead property. Such an order to sell, granted under circumstances as enumerated, would remain inoperative until the termination of the homestead estate.</p> <p>(5) Where, for the reasons indicated in the preceding divisions of this headnote, the administrator has not the right of entry until the termination of the homestead estate, but, within less than one year after tlie right of entry accrues, his suit for recovery of the land is instituted against the members of the family who remained in possession under the homestead, it is not erroneous to refuse to dismiss his . petition upon the ground of laches.</p> <p>4. Upon the allowance of an amendment to the petition, it is not an abuse of discretion for the trial court to overrule a motion for continuance upon the ground of surprise, where'it is not shown how the moving party is surprised, and that he is less prepared to go on with the trial than he v’ould have been if the amendment had not been allowed. Civil Code, §5128.</p> <p>6. In complaint for land mesne profits may be recovered by an administrator against an heir of the intestate, claiming as a distributee of the estate, where the land has been wrongfully withheld by such heir from the administrator when it was necessary for the administrator to have possession thereof for the purpose of paying debts and making proper distribution among all the heirs of the deceased.</p> <p>6. The uncontradicted evidence was of such character as .to authorize the direction of the verdict rendered in this case.</p>

Motion to amend judgment. Before Judge Brand. Clarke superior court. January 15, 1907. At the April term, 1905, of the superior court of Clarke county, J. Y. Williams filed a written motion to amend a judgment entered in said court at the October term, 1896, in the case of Rucker, receiver of the Farmers Alliance Warehouse & Commission Co., v. National Bank of Athens and others, in which suit Dawson Williams and J. Y. Williams were parties defendant.

<p>Exceptions to auditor’s report. Before Judge Beagan. Bike superior court. October 8, 1906.</p>

<p>1. The holder of one of several notes secured by the same mortgage may foreclose the mortgage in equity. The holder of the other notes is a proper, even if not a necessary party to the proceeding.</p> <p>2. A petition for equitable foreclosure by the. mortgagee against the mortgagor and the holder of one of the notes secured by the mortgage is not rendered multifarious because of a prayer for a decree to enforce a special agreement between the mortgagee and the holder of- . the transferred note, that the former’s indebtedness secured by the-mortgage should be first satisfied from the proceeds of the mortgaged property.</p> <p>3. Upon the controlling issues the evidence was without conflict, and it-was not error to direct the verdict complained of.</p>

Action for damages. Before Judge Beagan. Butts superior court. September 3, 1906. Pope brought an action for damages against the Southern Bail-way Company, for the killing of a certain mule belonging to the' plaintiff.

<p>Action for damages. Before. Judge Lewis. Morgan superior court. December 29, 1906.</p>

Equitable petition. Before Judge Little. Muscogee superior court. November 20, 1906. The plaintiff in this case, CAJ.

<p>Where several persons engage in a commercial enterprise under a firm name, each contributing his credit and services to the business, upon an agreement to divide net profits, all of such persons would he liable as partners upon a promissory note, executed with due authority, in payment for goods sold to the firm.</p>

Action for damages. Before Judge Mitchell. Lowndes superior court. November term, 1906. Mrs. C. A. Penn brought suit against the Georgia Southern and Florida Railway Company, seeking to recover damages on account of the homicide of her husband. The petition contained three counts.

<p>Illegality. Before Judge Bartlett. Douglas superior court. May 17, 1906.</p>