Volume 130 — Georgia Reports

<p>Action for breach of contract. Before Judge Roan. Campbell superior court. September 27, 1906.</p>

Action upon insurance policy. Before Judge Beagan. Early superior court. November 20. 1906. The Liddell Company brought suit against the Hartford Fire Insurance Company. The petition contained two counts.

<p>Indictment for murder. Before Judge Fite. Gordon superior court. November 11, 1907.</p>

<p>Indictment for rape. Before Judge Freeman. Troup superior court. December 9, 1907.</p>

<p>This court will not pass upon the constitutionality of a statute, unless it appears that the question was made in the court below and passed upon by the trial judge, and further that the particular provision of the constitution alleged to have been offended by the statute was clearly designated.</p>

<p>Indictment for murder. Before Judge Hammond. Columbia ■superior court. October 15, 1907.</p>

<p>Indictment for murder. Before Judge Mitchell. Colquitt superior court. November 30, 1907.</p>

<p>Indictment for murder. Before Judge Boan. Fulton superior court. December 28, 1907.</p>

<p>Where a creditor without lien, who had notice of the proceedings in bankruptcy, held a debt dischargeable in bankruptcy, against which all exemption and homestead rights had been waived by the debtor who was adjudicated a bankrupt, and the creditor filed, before the bankrupt’s discharge, a proceeding in equity to obtain a judgment in rem against property set apart as exempt by the trustee in bankruptcy, in which •proceeding a receiver was appointed for such property and an interlocutory injunction granted against the debtor’s interference with the property, it was proper, upon the trial of the ease instituted by the creditor, to uphold the debtor’s plea that his discharge, obtained pending the creditor’s proceedings in equity, prevented the creditor from obtaining a judgment in rem against the exempted property and subjecting it to his debt.</p>

<p>1. The reasonableness or unreasonableness of the disposition of his property, made by a testator by will, may be considered in connection with a ground of caveat alleging want of testamentary capacity, or it may be alleged and proved in connection with a claim that the will was the result of fraud or undue influence, working injury to the heirs at law. But a separate and distinct ground of caveat based on the mere allegation that a will was unreasonable and contrary to public policy, because it left nothing to the husband and practically nothing to the child of the testatrix, and bequeathed the entire estate to a third person (the sister of the testatrix), was demurrable.</p> <p>2. Where a ground of a caveat to the probate of a will alleged that the instrument propounded as a will was not freely and voluntarily executed, but was the result of fraudulent practices upon the fears and affections of the testatrix, exerted at and before the making of the will by the person named as the executor and the person who was practically the sole legatee, by representing to and persuading her that her husband intended and was endeavoring to deprive her of the custody and' control of her child of tender years, and had consulted counsel with a view to taking legal steps for that purpose, and that such statements were false and without foundation in fact, such ground of caveat was not subject to general demurrer. '</p> <p>IS. Nor was a ground of caveat subject to general demurrer which set up that the will was the result of undue influence exerted over the testatrix. at and before its execution, by the person named as executor and the person who was the chief and practically sole legatee, which influence was exercised by eollusively persuading her and making repeated false statements to her of the conduct and intention of her husband as stated in the preceding headnote.</p> <p>4. Nor was a ground of caveat subject to general demurrer which set up that the will was the result of a mistake of fact by the testatrix as to the conduct of her husband, in respect to his intention and actions as stated above. Such a ground, if sustained, would affect the will pro tanto.</p>

<p>Petition for injunction. Before Judge Whipple. Irwin superior court. October 4, 1907.</p>

<p>Equitable petition. Before Judge Kimsey. Rabun superior court. March 12, 1907.</p>

<p>No errors of law being complained of, and there being sufficient evidence to sustain the verdict, the court did not err in refusing a new trial.</p>

<p>Complaint for land. Before Judge Pendleton. Fulton superior court. May.28, 1907.</p>

<p>Where the agents of a railroad company stated to an owner of perishable goods that the company had a schedule for one of its trains between Savannah and New York of 43 hours, and expected to maintain the schedule, and that everything possible would be done to maintain it, and such owner, acting on the belief induced by such statements that such train would reach destination in 43 hours, made shipments of such goods thereby from Savannah to New York, a special contract to transport the shipments in 43 hours was not made by the carrier.</p>

<p>Petition for injunction. Before Judge Worley. Hancock superior court. November 2%, 1907.</p>

<p>Indictment for murder. Before Judge Felton. Houston superior court. December 18, 1907.</p> <p>Joe Toomer was indicted for the murder of Lula Toomer, his wife. Upon the trial of the case the jury returned a verdict of guilty, with a recommendation to mercy, and the defendant excepted to the judgment overruling his motion for a new trial. There were no eye-witnesses to the killing. The evidence showed that the defendant returned to his home on the morning of the tragedy, after being away the night before, and asked his wife to prepare breakfast for him. According to some of the witnesses, the defendant and the deceased commenced playing with each other, and finally began disputing about whether the defendant should leave home again that day, Sunday. One of the witnesses testified, “I heard him [the defendant] tell her to make haste and fix breakfast, he wanted to go off; and she said if he went off she hoped somebody would kill him. He didn’t say nothing, and about that time I heard the pistol fire.” Two witnesses for the State testified that the defendant told them that he, the defendant, shot his wife because he was mad with her. Fulton,- a witness for the State, testified, "I asked him why did he shoot her; and he said because she said she hoped some man would kill him before night.” The defendant, in his statement, gave the following account of the occurrence: “I was'playing with her [the deceased]. Wé were not mad at all. She was not mad, and she was kinder a little fretted, like colored women will be by her husband; and we started to playing, and we went in the other room, and was playing in there. When I threw the pistol down we were playing. I didn’t know it would shoot; and if it did shoot, I didn’t think I would hit her. And she wheeled, and she got shot, and it was done accidentally.” The motion for a new trial in the case contains the three general grounds, and the following special grounds: (1) “Because the court erred in charging the jury as follows: 'It is a rule of evidence that to warrant a conviction solely on circumstantial evidence, the proven facts must not only be consistent with the guilt of the accused, but exclude every other reasonable hypothesis save that of the guilt of the accused.’ To which charge the defendant then and there excepted and now excepts and says this charge is error, because the presiding judge did not charge the jury the contra of this proposition on the .law of circumstantial evidence; that is, that if there was any other inference of innocence, it would he the duty of the jury to turn the defendant loose.” (2) “Because the court erred in charging the jury as follows: 'Now, if you believe that to be the truth of the case, that the homicide was committed in that way; that it was the result of an intentional firing by this defendant of his pistol at and towards his wife, and that there was no provocation therefor other than the remark, you would be authorized to find the defendant guilty of the crime of murder; for the reason that neither words nor threats nor menaces shall be sufficient to reduce a homicide from murder to a lower offense than murder. The words thus spoken to him, if in consequence of those words thus-spoken he deliberately drew his pistol, intentionally fired and shot into her body, which caused her death, would not be provocation which under the law would reduce that act from murder to a lower grade of homicide than murder; and if you believe that the homicide was committed in that way, you would be authorized to find the defendant guilty of the crime of murder.’ To which charge, the defendant excepts, for the reason that the judge assumes that a homicide had been committed. This is a question for the jury to decide, and not for the presiding judge.” (3) “Because the-court erred in charging the jury as follows: 'If you believe the •truth of the case is that the defendant was guilty of killing his-wife without any intention to do so, but that he killed her in the commission of an unlawful act, then you would be authorized to-investigate the question as to whether or not the defendant is guilty of the offense of involuntaiy manslaughter in the commission of an unlawful act. That is an offense which is punished by confinement in the penitentiary for a term not less than one nor longer than three years. And on that subject I charge the jryry this, that if you believe the defendant, having no intention to fire the pistol at his wife, yet pointed it towards her intentionally, the intentional pointing of a pistol towards another, whether loaded or unloaded, when not done in self-defense or under circumstances of justification enumerated in the code, but in consequence of the intentional pointing of the pistol at her, that he, under the impression the pistol was not loaded, snapped it at her, thinking that, the pistol was not loaded, and that her death was produced by the firing upon her unintentionally on his part, by the explosion of the cartridge in there, when he thought there was none there, yet as the result of the doing on his part of the unlawful act, of the intentional pointing the pistol at her, and in that way her death resulted, you would be authorized to find the defendant guilty of involuntary manslaughter in the commission of an unlawful act.’ To which charge the defendant excepts and says that the court erred in charging this part of the Criminal Code on involuntary manslaughter in the commission of an unlawful act, without charging the jury the other grade of involuntary manslaughter in the commission of a lawful act.” (4) “Because the court erred in not charging the jury in this case the law of involuntary manslaughter in the commission of a lawful act. Defendant’s counsel contends that there was evidence that calls for this charge, and it was harmful to the accused not to give it.”</p>

<p>Complaint. Before Judge Parker. Glynn superior court. June 7, 1907.</p> <p>Tbe plaintiff brought a suit against the defendant for $299, besides interest from the 10th day of May, 1902, for goods sold on a contract, a copy of which was attached to the petition; and alleged that they had complied with all its terms. The defendant filed an answer, denying any indebtedness to the plaintiff, averring that she refused to give the notes referred to in the contract, because the plaintiff had not complied with the terms thereof, and that the sending of the.bond referred to in the. contract was a condition precedent, which the plaintiff had failed to perform, and that the goods shipped hy the plaintiff and rejected hy the defendant had been received back by the plaintiff. This contract set forth an itemized statement of the goods sold and prices of the same, amounting to $299. One provision was: “This sale made under inducements and representations herein expressed and no other, and is not subject to countermand.” It provided that the defendant could give notes for payment in instalments, if notes were given within ten days from date of invoice covering such instalments, and for 6% discount for cash within 10 days if said notes were thus given; “otherwise terms are cash 15 days.” The contract was dated April 24, 1902, signed by the defendant, who requested the plaintiffs in the contract to deliver to the defendant, at its.earliest convenience,'!, o. b. transportation companies, the goods bought. The contract further provides as follows: “The Equitable Manufacturing Company hereby agrees to send a bond that clerk of court knowing sureties would accept, in the amount of $300.00, to protect the purchaser in all the conditions of this trade as per attached slip, bond to be sent to the Brunswick Bank & Trust Company.” The material portions of the attached slip referred to provided for a guarantee by plaintiffs that the gross profits to the purchaser from the sale of jewelry would be a certain amount upon conditions, one of which was “that the purchaser settle for the goods as herein provided, and if the settlement is by note, pay the same when due.”</p> <p>Upon the trial the plaintiff introduced testimony the material portions of which are as follows. The invoice was dated April 30, 1902. The contract was received by the plaintiff in Iowa City, Iowa, for approval, from the defendant; and it was approved by the plaintiff, and the defendant was notified. The jewelry sold was delivered to the U. S. Express Co. at Iowa City on the 30th of April, 1902, and the show-case, pedestal, box of glass, and catalogues were delivered to the railroad company at Iowa City on the 29th of April, 1902. All were shipped to the defendant on May 1, 1902. A bond hereinafter referred to was forwarded to the Trust Company at Brunswick by registered letter from Iowa City. The goods shipped were the goods bought by the defendant. The plaintiff never received back the goods, which are now in possession of the railroad company, held as the property of the defendant. One of the plaintiff company testified: “I was not present at the time it [the contract] was made. I was in Iowa City, Iowa. We received it from our salesman.” Eugene Marlin, a bank collector of the bank and trust company, testified that on or about May 7 he received and took the bond down to the defendant, who refused to take it. The bond was sent back to the plaintiff by the defendant’s instructions. D. W. ICrauss testified that he received the claim in the latter part of 1908, and presented it to the defendant, who never made any contention in Tegard to the bond, but contended that she would not pay for the goods, because they wore worthless. The plaintiff introduced in evidence a bond, the provisions of which were as provided for in the contract, signed as follows: “Equitable Mfg. Co. per T. O. Loveland. M. H. Taylor, B. E. Hawley.” Also, a1 certificate of Sylvanus G. Duley, to which was attached his notarial seal, which certificate stated that T. O'. Loveland, for the plaintiff,’ and Taylor and Hawley, sureties on the bond, acknowledged the execution thereof before him. The plaintiff also introduced in evidence an affidavit of M. H. Taylor;, that he was worth $10,000 over and above exemptions and liabilities. Also, a certificate signed J. G. Marner, Clerk, with the seal of the district court of Johnson County; Iowa. This certificate stated that Taylor and Hawley were amply good and sufficient for the penalty of the bond; and if the bond was presented to him for approval as clerk of said court, he would approve it. The defendant objected to the introduction of this bond, because-it had not been proved as required by law, and because it was not the bond required to be tendered by the contract; which objections were sustained. The court directed a verdict for the defendant, and the plaintiff- excepted.</p>

<p>1. The hcflder for value of a negotiable promissory note, who receives it before due, without notice of equities between the original parties thereto, will be protected as against such equities.</p> <p>2. Where there was no evidence, or offer to introduce evidence, to show notice to the holder, or reasonable ground for suspicion upon his part, that the purpose of the payee in negotiating the note was to defraud creditors, it was not erroneous to exclude testimony to the .effect that the payee had expressed an intention to transfer the note in order to avoid payment of debts.</p>

<p>Foreclosure of lien. Before Judge Spence. Turner superior court. September 11, 1906.</p>

<p>Complaint. Before Judge Spence. Calhoun superior court. December 5, 1906.</p>

<p>1. A warranty deed conveying land and its appurtenances described the land and contained the following recital: “It is expressly understood that the sawmill privileges is sold from fourteen inches up.” There was aliunde evidence that the grantor had previously conveyed the timber on the land to another person, for sawmill purposes. Held, that this recital merely gave notice to the second purchaser that the sawmill privileges described had been sold, but did not operate to reserve *to the grantor, as against the second grantee or those holding under him, any interest in or right in respect to the timber. The second conveyance carried all rights left in the grantor; and if, under the terms of the first grant, the right of the grantee therein terminated before he had cut all of the timber which he had a right to cut, what remained did not revert to the original grantor, but to his second grantee, or one succeeding to his rights. In such a case the original grantor had no right or interest which he could convey to a third grantee.</p> <p>2. Where, under the facts stated in the preceding headnotes, the third grantee sought, by equitable petition, to enjoin one, who held under the second grantee from the common grantor, from cutting timber on the land, claiming that the right of the first grantee had expired and that there had been a reversion to the common grantor, which passed to the third grantee, there was no error in refusing to grant an interlocutory injunction.</p>

<p>1. Where the evidence affords an inference that a person was killed on a public-road crossing by the running of .a railroad locomotive, and the attendant circumstances are not conclusive that the homicide was attributable to the negligence of the deceased person, or could not have been prevented by the exercise of reasonable care, and diligence by the agents of the railroad company in charge of the locomotive, the court should submit the questions of negligence and diligence to the jury.</p> <p>2. The excluded evidence was irrelevant, and did not illustrate any issue made by the pleadings.</p>

<p>Motion to set aside judgment. Before Judge Edwards. Douglas superior court. July 2, 1907.</p>

<p>1. The statutory form of action to recover land is not repealed by the pleading act of 1893 (Civil Code, §4961), but is capable of division into separate and orderly paragraphs, as required by that act.</p> <p>2. The allegation in the statutory form of complaint for land, that the plaintiff “claims title” to the land, is the equivalent of an allegation of title.</p> <p>3. Where the petition departs from tlie statutory form and alleges that the plaintiff “claims title” under an abstract of title annexed to the petition, this is- equivalent to an allegation that the plaintiff’s title is as defined in his abstract.</p> <p>4. If the allegation of title in the abstract under a form of petition indicated in the third syllabus be an insufficient title, the failure of tlie defendant in his answer to deny the paragraph setting up this title will not amount to the admission of a prima facie title in the plaintiff.</p>

<p>1. Where a mortgage is given to indemnify one who becomes a surety upon a bond in which the mortgagor is principal, a misdescription of the particular bond may be corrected by parol testimony so as to indentify the bond described in the mortgage with the one upon which the mortgagee became surety. And the mere misdescription of the bond will not have the effect to render the mortgage invalid as a lien upon the jproperty described, either as to the mortgagor himself or his vendees.</p> <p>2. The mortgage having been foreclosed and a fi. fa. issued upon the judgment of foreclosure, neither the judgment of foreclosure nor the fi. fa. was void because of mere irregularities in the foreclosure proceedings, nor because of defects therein which could have been amended had they been attacked by a timely special demurrer.</p> <p>3. The evidence demanded the verdict which the court directed.</p>

<p>Arbitration and award. Before Judge Brand. Gwinnett superior court. September 10, 1906.</p> <p>F. J. Hunter, as executor of the last will of Mrs. M. V. Medlock and as next friend of the minor children of Mrs. Medlock, instituted suit against C. P. Lively and H. M. Lively, seeking to enjoin the defendants from the erection and use of a warehouse in front of and near a certain residence and boarding-house, the property of the plaintiffs. The use to which the warehouse was to be employed was the storing of fertilizers alleged to be of such character as to emit unpleasant and unhealthy odors, thereby rendering the property of the plaintiffs undesirable for the purr-poses for which it was used by them and injurious to the health of the occupants, by means whereof the plaintiffs and their property would be damaged. The defendants admitted their intention to-construct the warehouse and use it for the purposes aforesaid, but denied that the use thereof would injure the property in any respect or render it undesirable for the uses to which the plaintiffs were putting their property, or that it would in any way damage the plaintiffs’ property. After making answer the parties entered into an agreement to arbitrate their differences. In the stipulations to arbitrate it was provided: “Whereas there is a matter of controversy between F. J. Hunter as executor of Mrs. M. V. Med-lock, deceased, and as the next friend of the children of Mrs. Medlock, as plaintiffs, v. C. P. Lively and H. M. Lively, now pending in Gwinnett superior court, in which the plaintiffs are seeking and have had granted a temporary injunction, restraining said defendants from using a certain warehouse situated on •the right of way of the Southern Railroad Company in the town •of Norcross, in said county, fully described in the petition in said •case, for the purpose of storing guano and commercial fertilizers, .acids, or other manures in said house, to the injury and damage of plaintiffs and their property, either temporarily or permanently. And said parties have agreed to submit the question of nuisance or injury or damage .to arbitration. And for this purpose the plaintiffs have selected T. B. Wray and defendants have selected Iiuburt Letrow as their arbitrators, and have also selected J. E. McElvoy as the third arbitrator, or umpire. Said award is to be • conducted under the provisions of the Code of Georgia, known as the statutory 'arbitration, in the hearing of said case. Upon the hearing the only question to be submitted to and passed upon by ¡said arbitrators is whether the health or property of said plaintiffs have been injured or damaged by the use of said warehouse as above stated and the injunction now in force shall be made permanent. And in the event said arbitrators decide that said warehouse worketh hurt or injury to the health or property of said plaintiffs, then it is agreed that said defendants will not use the .same for said purposes. The award to be returned to and made the judgment of the superior court of said county. It is further agreed that the restraining order now in force shall be continued until the award is rendered by said arbitrators and the case stand continued until such award is made. In witness whereof said parties have hereto set their hands and seals. This 27th day of October, 1904. C. P. Lively & Son. (L. S.); Fred J. Hunter (,L. S.)” The arbitrators met and administered to each other •the oath required by the Civil Code, §4492. A hearing was then had, and the following award was made: “We, the undersigned -arbitrators, to whom were submitted the differences between F. J. Hunter, executor of Mrs. Medlock, deceased, and as next friend «of the children of Mrs. Medlock, as plaintiffs, v. C. P. Lively and H. M. Lively, now pending in Gwinnett superior court, in which the plaintiffs are seeking and have obtained a temporary injunction restraining said defendants from using a certain warehouse ,situated on the right of way of the Southern Railroad Company, in the town of Norcross in said county, for the storing of commercial fertilizers, herewith return our award. Upon delivery of the ¡articles of submission to the arbitrators, they met and appointed a time and place of hearing, of which due and legal notice was given to the parties. On the 28th day of December, 1904, pursuant to the said notice the hearing was had. After hearing the evidence and considering the matter submitted to us, we find that the property of said defendants would be damaged by the use of said warehouse for the storing of commercial fertilizers as above-stated. We therefore find in favor of said F. J. Hunter, executor,, and that the injunction now in force be made permanent. J. E.. McElroy; T. B. Bay; L. H. Letrow.” Hpon the return of this award, the judge of the superior court passed an order directing-that the submission and award be entered upon the minutes of court. At the same term of court, the defendants, C. P. Lively and H. M. Lively, filed a number of exceptions to the award, as follows: “And now come the defendants at the term of court to which the above stated award was returned, and on oath say that, the said award was the result of a mistake, that it was an accident, and is otherwise illegal for the following reasons: (1) 'Plaintiffs’ petition seeks to enjoin a nuisance, and the question of whether the defendants were maintaining or about to maintain a. nuisance irreparable in damage was submitted to the arbitrators,, and their award holds that said acts recited in the petition would damage plaintiffs’ property, and the question of damage was not submitted to the arbitrators; and their award, determining only-a question that was not submitted and not determining the- question submitted, is void. (2) There was not submitted one singleparticl-e of evidence to the effect that the erection of the house itself' would be a nuisance and would damage petitioners’ property; ancl that being the true fact as shown by the testimony of plaintiffs’ own witnesses and by plaintiff himself, there is no evidence as shown by the brief of evidence to uphold the award, because the court: of this State has held that guano itself is not a nuisance-; therefore the award is contrary to law. (3) A court of equity can not restrain an act of damage, unless it is shown that the- damage would be irreparable in damage; and therefore an award so finding could not be made a legal judgment of the court. (4) This award is illegal, because it is void in that it does not determine the questions involved; there can be no legal award made and can not be made the judgment of the court of equity, which does not and can not determine damages. (5) The testimony and the record shows that F. J. Hunter and E. O. Medlock are joint executors of the will of Mrs: M. V. Med]ock, deceased, whereas only F. J. Hunter is made party plaintiff in this cause; and the arbitrators ■erred in not finding for the defendants upon motion of counsel for defendants on that ground. (6) The question submitted is -a question specially vested in the superior court, and can not be, by said court or any other authority, delegated to arbitrators, and their finding on the pleadings and evidence in this case is void. Defendants, having hereto attached a brief of the evidence adduced on the trial before .the arbitrators, as required by law, pray therefore that these their grounds of exception may be inquired into and ■sustained, and said award may be vacated and set aside as provided by law.” By amendment the following exceptions were added : “The award is illegal, because no proof was adduced before the arbitrators showing title in the plaintiff to the.property alleged to have been damaged. (2) Hnder an arbitration of this kind the ■parties have no right, as a matter of law, to select the third arbitrator ; therefore the- selection of the third arbitrator by the parrties in this case renders the award illegal. (4) The submission is signed by F. J. Hunter as an individual, and not in his capacity as an executor of the estate he claims to represent; and therefore the award is for that reason illegal.” The plaintiff filed a demurrer to the exceptions, upon the ground that each of the exceptions ‘.was insufficient in law. The court sustained the demurrer and ■dismissed the exceptions; and thereupon the defendants excepted.</p>

<p>Action for breach of contract. Before Judge Eite. Whitfield superior court. November 28, 1906.</p>

<p>Equitable petition. Before Judge Beagan. Pike superior court, October 1, 1906.</p> <p>E. G. N. Wilson and W. Z. Gardner, as executors of the estate of T. M. Cauthern, deceased, on August 21, 1906, filed an equitable petition against O. A. Dumas, Sarah Osborne, and the Citizens Bank of Barnesville, which, with amendments, alleged: T. M. Cauthern died in 1885, beqiieathing his “home place” to his wife and to his daughter, Elizabeth Bebecca, for life, the one life-tenant surviving the other to succeed to her share and hold until death; the will further providing that in case the daughter, Elizabeth Bebecca, died “without heirs,” then the property should vest in two other daughters of the testator, Mrs. Wilson and Mrs. Gardner, as reihaindermen. The wife died about the year 1904 and Elizabeth Bebecca died on January 7, 1906, leaving “no heirs.” Before her death, Elizabeth Bebecca had rented the property to the defendant O. A. Dumas for the year 1906, for 2,500 pounds ■of lint-cotton, payable in equal quantities on the 1st days of October and November “after date,” respectively. She took Dumas’ rent note to this effect, payable to herself or bearer, and transferred it in writing, not dated, to the defendant, Mrs. Sarah Osborne, who transferred it to the defendant, the Citizens Bank of Barnesville. The life-tenant, Elizabeth Bebecca, died before the crops for the year 1906 were sown, and consequently the remaindermen were' entitled to the emblements. The defendants, Mrs. Sarah Osborne and the Citizens Bank, took the note as transferees with full knowledge of the plaintiff’s'rights. It is prayed-that title to the property be decreed to be in the remaindermen, Mrs. Wilson and Mrs. Gardner; that the rents, issues, and profits be decreed to fol- ' low the corpus; that the defendants, Mrs. Osborne and the Citizens Bank, be restrained from collecting the rents, issues, and profits of the land, or interfering in any way with the land; and for other relief. It was admitted that the defendant Dumas was ■entitled to the possession of the land under his contract of rental with the life-tenant. However, process was prayed against him, and he appeared and filed a general demurrer on the grounds, (1) that no cause of action was set forth, entitling the petitioners to-recover against him either the premises or a judgment for the rents; and (2) that, the suit was filed before the rent was due, before the crop had matured, and before his lease had expired; -and consequently he prayed that the suit be dismissed as against him. The defendant, the Citizens Bank, also filed a general demurrer and prayed that the suit be dismissed as to it, on the grounds, that the petition showed no reason why such defendant should be restrained from collecting the rent note of the defendant Dumas, and further that the defendant was solvent. Both demurrers were sustained, which rulings only are sought to be reviewed by this writ of error. -</p>

<p>Buie. Before Judge Wright. Bandolph superior court. November 8, 1906.</p>

<p>When the record and bill of exceptions in any case have been transmitted, through the proper channels of transmission, to the Court of Appeals, and that court, upon an examination thereof and of the certificate of the presiding judge, is of the opinion that the ease is one of which the Supreme Court, and not the Court of Appeals, has jurisdiction, it may, by a proper order, direct such record and bill of exceptions to be transmitted to this court for determination of the question of jurisdiction; and this .. court has authority by rule or order to direct its clerk to notify the court of any such transmission which may be made; and if it should be decided by the Supreme Court that it, and not the Court of Appeals, has jurisdiction of the ease, such case will be retained and entered on the docket of this court for hearing and determination.</p>

<p>1. A deed in tlie ordinary form of a conveyance in fee simple, with warranty, contained tlie following clause, immediately after the clause of warranty: “The above deed conveys tlie following rights unto the said Benajah Peterson, his heirs, executors; administrators, and assigns, or any of them, is to have the above parcel of land again should the said J. S. Lott offer for sale during his lifetime or at the death of the said J. S. Lott by paying unto him or his heirs, executors, administrators, and assigns the above sum of money hereinbefore mentioned ($32.50), and the said Benajah Peterson hereby binds himself, his heirs, executors, administrators, and assigns, to pay unto the said J. S. Lott or his heirs, executors, administrators, or assigns, by the consent of a committee of three men, the value of any improvement that the said Lott should put upon said land, when tlie same is transferred back to the said Peterson.” Construing the deed, Held: (a) The clause above quoted created a condition subsequent, (b) There would be no breach of such condition unless the grantee, during his lifetime, offered the land for sale, and refused to accept-from the grantor tender of the amount specified, together with the value of the improvements ascertained, or uniese at the death of the grantee his representatives should refuse to accept from the grantor tender of the amount specified, together with the value of the improvements ascertained in the manner provided, (c) The grantor, in order to reenter as upon breach of the condition, must, as a condition to such reentry, ascertain and tender the amount above referred to. (d) The grantee should be treated as the owner of the land until re-entry by the grantor as for a condition broken.</p> <p>2. In a suit for trespass to land, where a junior deed executed in 1904, and not properly recorded until after commission of the injury complained of, comes in competition with a senior deed executed in 1882, which was never properly recorded, the junior deed takes priority only from and • after it is lawfully filed for record, and, with respect to a trespass committed before the junior deed is filed for record, the senior unrecorded deed will prevail.</p> <p>3. Where a juror is sought to be impeached after verdict, upon the ground that he was related within the fourth degree of consanguinity to the prevailing party, which fact was not known to the movant or his counsel Until after the verdict and discharge of the jury, the court, in passing upon the motion for new trial, will hear evidence upon the ground of impeachment, and its finding against the contention of the movant will not be disturbed, where the evidence, though conflicting, was sufficient to support the finding.</p> <p>4. A ground of a motion for new trial, which assigns error upon the exclusion of certain deeds, without disclosing so much of their contents as to enable the reviewing court to determine the relevancy and competency of the rejected evidence, can not be considered.</p> <p>5. In a suit for trespass, where title to land is involved, the plaintiff and defendant claiming only under a common grantor, and the defendant not attempting to show independent, paramount, outstanding title to defeat the plaintiff’s action, a charge of the court, which in effect instructs the jury that the plaintiff has introduced in evidence a chain of title from the State down to himself through the common grantor, is not a harmful expression of opinion, where the plaintiff holds a deed directly from the common grantor, superior to the deed of the defendant from the same grantor.</p> <p>■6. In a suit of the character mentioned in the preceding headnote, where the plaintiff relies upon paper title and also upon a theory of prescriptive title, if the evidence is such as to demand a verdict in favor of the plaintiff upon his paper title, without resort to the law of prescription, any error by the court in charging upon the law of prescription will be harmless.</p> <p>7. The evidence was sufficient to support the verdict, and there was no error in refusing to grant a new trial upon any ground contained in the motion.</p>

Action for damages. Before Judge Hammond. Richmond superior court. October 13, 1906. This was an action for personal injuries. The plaintiff’s petition was dismissed on general demurrer, and error is assigned upon the judgment of the court.

Action on contract. Before Judge Kimsey. Stephens superior court. November 9, December 3, 1906. The petition of W. C. Edwards against T. A. Capps alleged, in substance: T. A. Capps was largely interested in the organization of the Capps Cotton Mill, of Toccoa, Georgia, is its largest shareholder, and has been its president from the time of its organization in 1900.

<p>Numerous exceptions of law and fact were filed to the auditor’s report. Some of them are referred to by grouping them together in the brief of counsel for plaintiff in error. This court has carefully considered all those insisted upon in the briefs, and the grounds of exception taken to the judge’s rulings; and no error appears in them which requires a reversal.</p>

Action for damages. Before Judge Lewis. Morgan superior court. December 29, 1906. J. Y, Thomas Jr., a minor, brought an action, through his next friend, a.gainst the City of Madison, to recover damages for, personal injuries. On the trial the evidence authorized the jury to find the following facts: The defendant operated an electric-light plant for lighting its streets and furnishing lights to its residents.

<p>1. Evidence of general repute in the neighborhood is admissible on the trial of a suit involving the issue of marriage vel non.</p> <p>2. Declarations of a person since deceased, wholly in favor of the interest of the declarant, and which are not a part of the res gestse, are mere hearsay and not admissible in evidence. •</p> <p>3. When the fact of marriage is in issue — whether a consensual or a ceremonial marriage, the subsequent conduct of the man and woman said to have been the parties to it is receivable in evidence as a circumstance bearing upon the issue. Where equivocal conduct such as cohabitation is relied upon as a circumstance material to the issue, declarations of one of the parties since deceased, made pending the period of cohabitation, disaffirming the marriage, are admissible under the principle of res gestee, for the purpose of showing the character of the cohabitation.</p> <p>4-6. If a cohabitation between a man and a woman is shown to have been illicit in its inception, in the absence of proof to the contrary, the illicit relation will be presumed to have continued throughout the period of cohabitation. Such presumption may be overcome by direct or circumstantial evidence affirmatively showing that, pending the illicit relation, the parties entered into an agreement to become husband and wife, and thereafter continued the cohabitation in the new relation. The burden of proof is upon the party asserting the agreement.</p>

Action upon insurance policy. Before Judge Bawlings. Tattnall superior court: September 7, 1906. On April 15, 1904, the AEtna Insurance Company issued to Wolf Lipsitz a policy for $3,000 on a stock of merchandise in the town of Collins, to continue in force for one year. A fire occurred March 13, 1905, greatly damaging the goods; and upon refusal of the company to pay the loss, the assured entered suit on the poliey. Breach of the “iron-safe clause” was pleaded.

<p>1. An attorney employed in two different suits against different parties, but involving the same issues, and the interest of his clients being of the same character in each, may stipulate that the trial of one shall determine the issues in the other. Under the facts of this case, and in view of the agreement made, which specified that one suit should abide the result of the other, and that the final termination of one should be "the final termination of the other, there was no error in holding, after ■a final judgment in the first case finding in favor of the plaintiff for the total amount of the insurance policy there involved (allowing a small admitted credit for a premium returned), upon the trial of the suit on the policy involved in the second case (which was in all respects like the -other policy save as to its amount), that a verdict and judgment should be entered for the full amount thereof, less the small deduction admitted to be proper on account of a return premium.</p> <p>2. Where, after judgment against the first company for the full amount ■ of its policy (less a small credit for a returned premium), on the trial . of the suit based on the second policy it was sought by motion to have the agreement to be so construed or opened as not to prevent proof that some of the property insured was not destroyed, and the question of knowledge of the facts on the part of the defendants or their agents or attorneys, or opportunity for knowledge thereof, prior to the trial of -the first case, was involved, a letter from the insured to the person who -was agent of both companies, though addressed to him as agent only of the company against whom the judgment had beeii obtained, suggesting that adjusters be sent to the scene of the fire, and his reply stating that “the policies” had been cancelled before the fire and that “you had no insurance with our office at the time of the fire,” and also a letter from the attorneys representing the defendant in the first trial, who were also the attorneys for the defendant in the second trial, denying the liability on the first policy but suggesting certain irregularities in the proofs of loss, though not admitting them to be valid, were admissible in evidence along with the proofs of loss made to each company under its policy, which were similar in character.</p> <p>3. Nor, under the facts disclosed, was there error in holding that the defendant in the second case could not'reduce the amount of its liability by showing that some of the property insured had not been destroyed, • the suit in each case claiming the full amount of the policy, and the same defenses being applicable to both eases.</p> <p>4. Where after-the evidence closed the attorney for the defendant stated! that he desired to move for a direction of a verdict, and thereupon the attorney for the plaintiff stated that he also desired to move for the-direction of a verdict, and, instead of hearing the motions separately .and giving to each movant the right to open and conclude the argument on his own motion, the court heard both together and allowed counsel for the plaintiff to open and conclude, even if this be erroneous, it will not require a reversal where there was no error in the direction given..</p>

<p>1. In order that a recovery may be had for a breach of warranty, damages and the amount thereof resulting from the breach must be shown; and the burden of proof is upon the purchaser. Implied warranty is a guaranty against loss only from latent defects. Accordingly, where on the trial of an action for breach of an implied warranty it appeared that at the time of the sale the article purchased had two infirmities, one of which was then known to the purchaser, but as to the other he then lad no notice, and there whs no evidence that the unknown infirmity of itself caused any loss, and, if it contributed to any loss, there was no evidence tending to show any definite amount of damages attributable to it, the purchaser was not entitled to recover.</p> <p>2. The decision of the court appointing receivers for the company on the ground, among others, that the charter had expired, was relevant and material evidence. '</p> <p>3. That the misconduct of the jury may be cause for a new trial, it must affirmatively appear that neither the complaining party nor his counsel knew of such misconduct before verdict.</p>

<p>Complaint for land. Before Judge Wright. Floyd superior court. February 1, 1907.</p> <p>B. L. Chidsey, W. B. Chidsey, George B. Chidsey, and James Berrien Chidsey and Sarah Frances Chidsey (the last two by their next friend, George F. Chidsey) filed their petition in the superior court of Floyd county against W. W. Brookes, J. B. Sullivan, and others, as trustees of Shorter College, to recover an undivided one-eighth interest in a described lot of land. It was alleged that each of the petitioners was the owner of an undivided one-fortieth interest in the land described; and that the land was in the possession of the defendants, who refused to deliver possession thereof to petitioners, or pay them the mesne profits thereof. Attached to> the petition was an abstract of title beginning with the grant from the State to Ambrose Sanders, and terminating in a will alleged to have been executed by S. S. Farrer and probated in the court of ordinary of the district of Charleston, State of South Carolina. The abstract of title was by reference made a part of the petition. The petition was amended by attaching as a part thereof a copy of the will of S. S. Farrer; and by alleging, that upon its probate- and record in the district of Charleston, State of South Carolina, on May 2, 1861, the nominated executors qualified; that they have never qualified as executors in the State of Georgia; that they assented to the devise of the land sued for, as set out in the third and seventh items of the will, and assumed no further control of the land, but delivered possession thereof to the life-tenant to be enjoyed by her and by the mother of the plaintiffs during her life,, and by the plaintiffs at the termination of the successor’s life estate. The petition was amended in other particulars not necessary to notice. The defendants demurred generally on the ground that no cause of action was set out in the petition, and specially to certain paragraphs. The demurrer was overruled, and exceptions pendente lite were filed. The defendants answered, denying the title of the plaintiffs and their right to the possession of the land. The case proceeded to trial, and certain documents were allowed in evidence over the objection of the defendants. To the rulings of the court admitting the same in evidence the defendants excepted pendente lite. At the conclusion of the evidence the court directed a verdict in favor of the defendants. A motion for new trial was overruled, and the plaintiffs excepted. The defendants sued out a cross-bill of exceptions, assigning error upon their exceptions pendente lite.</p>

<p>1. That the court had rejected evidence tending to prove the same fact sought to be established by evidence subsequently offered was not a basis for an assignment of error upon the admission of, the latter evidence, especially as" it did not appear upon what ground the former was excluded.</p> <p>’2. In view of the allegations of the petition, evidence that the plaintiff moved away from his home near the alleged nuisance was not irrelevant. .'3. That evidence was admitted over the objection of the party complaining is not cause for a new trjal, when it does not appear that any specific objection to its admission was made at the trial.</p> <p>4. There being evidence to support a verdict in favor of the plaintiff, such . verdict was not contrary to law, and the trial judge properly refused to give in charge to the jury certain written instructions requested by the defendant, which virtually directed a verdict in its favor.</p> <p>•5. Under the evidence the verdict was not excessive.</p>

<p>Trover. Before Judge Littlejohn. Crisp superior court. September 19, 1906.</p>

<p>1. It was agreed between a guardian and a surety company, that, if the latter would become surety on the bond of the former, he would deposit the wards’ funds in some bank in the city of the guardian’s residence, fio be approved by the surety, and that no part of this money should be withdrawn without the joint check of the guardian and the surety through its local representative. The arrangement was stated to the bank’s officers. Deposits were made, and afterwards an interest-bearing certificate of deposit was issued to carry into effect the agreement of the parties. It certified that the guardian had deposited a named sum payable to the order of the surety. This was received by the guardian and retained, with the understanding between Mm and the surety that no part of the fund should be withdrawn from the bank without the joint check of the guardian and the surety, and that if the whole should be withdrawn at once* the certificate of deposit should be indorsed jointly by them. Held, that such an arrangement had the effect to surrender in part the custody and control of the wards’ funds to another than the guardian appointed by law, and to put it beyond the power of the guardian to withdraw the fund in ease of an emergency; and that it was contrary to public policy.</p> <p>2. Where the bank failed, and a receiver was appointed under the national banking laws, and he took up the certificate of deposit, and, on proof of the claim by the guardian, issued to him a certificate showing the amount due him, and later paid to him certain dividends'declared from the assets of the bank, without the indorsement of the surety; although the guardian died without accounting therefor, and the surety paid the amount of such dividends to his successor in the guardianship, this did not give the surety a right by equitable petition to claim to be reimbursed from the remaining assets of fhe bank in the hands of the receiver.</p> <p>3. Evidence that the purpose of the surety in making the arrangement was to prevent the guardian from making illegal investments or withdrawing funds from the bank without proper authority from the court of ordinary, and to enable the surety before signing the cheeks with the guardian to investigate the legality of the proposed withdrawal and disbursement, was properly rejected. The contract or agreement which was made could be shown, not the purpose of the surety in making it,</p> <p>4. Evidence that it was the universal custom for surety companies to require all funds deposited in bank by guardians for whom they were sureties to be withdrawn only upon the joint check of the guardian and surety was properly rejected. The custom of surety companies can not change the law.</p>

<p>Claim. Before Judge Hammond. Columbia superior court. September 29, 1906.</p> <p>Two executions, one in favor of J. W. Gibson, and the other in favor of Bozier Gibson by his next friend, were levied upon a tract of land containing three hundred acres, more' or less, as the property of Mrs. L. W. Gibson, defendant in fi. fa. J. B. Wilson interposed a claim to the levy of each fi. fa. The two claim cases, involving the same issues, were tried together, a verdict being rendered in each case for the claimant. Both cases are before this court for review; but as a decision in one case will necessarily control the other, they will be treated together here. The facts disclosed by tlie record were as follows: In 1882 S. A. Gibson, the father of the plaintiffs, borrowed $800 from the New England Mortgage Security Co., and secured the same by a deed to the lands levied on by the plaintiffs. During the same year S. A. Gibson died, and the equity of redemption in said lands was set apart as a year’s support for his widow, Mrs. L. W. Gibson, and her minor children, Bozier, Maude, Carl, and J. W. Gibson. In 1889 the children conveyed to their mother their interest in the land so set apart, and she gave her notes for $400 each to J. W. Gibson and Boziér Gibson respectively, as payment for their interests in said land. Shortly áfter this, Mrs. Gibson, in order to-pay off the loan to the New England Mortgage Security Co., borTowed $1,290 from the Equitable Mortgage Co., and from the pro-1 ceeds of this loan she paid off the New England Mortgage Security Co., and received from it a deed of reconveyance. She then executed a deed'to said lands to the Equitable Mortgage Co., to secure said loan, and took from the latter company a bond for titles. In 1894 Mrs. Gibson entered into an agreement with her son-in-law, Wilson, the claimant in this case, to convey to him 105 acres of said land, provided he would advance $750 to be applied to the indebtedness of the Equitable Mortgage Co., said indebtedness amounting to $1,392.40. In pursuance of this agreement Wilson paid to the Equitable Mortgage Co. $102.40, and received from Mrs. Gibson a bond for titles, containing the agreement above referred to, and conditioned to make him an absolute deed to the 105 acres of land upon his paying the additional sum of $647.60 to the Equitable Mortgage Co. It was understood at the time that Eozier Gibson was to pay off the balance of the loan, so as to free the land from the incumbrance, of the Equitable Mortgage Co.; but before making any payment on said loan, Eozier Gibson was sent to the insane asylum. In 1896 Mrs. Gibson, being unable to pay the balance due to the Mortgage Co., executed to Wilson a warranty deed to the entire three-hundred-acre tract of land, naming $1,290 as the consideration. Wilson went into possession of' tire three hundred acres, and began making payments on the balance of the debt due the Mortgage. Co. Mrs. Gibson continued to reside in the house located on the 105-acre tract until 1902, when she voluntarily left the place, and has never returned. Sometimes she gave rent notes to Wilson for a portion of the land, but the record does not disclose whether she ever paid these notes. .In 1897, Wilson being unable to meet the payment to the Equitable Mortgage Co., and desiring an extension of the time, the following transactions were made: the Equitable Mortgage Co. conveyed its interest in the land to the Equitable Securities Co., Wilson reconveyed his interest to Mrs. Gibson, and she, in consideration of the cancellation of her notes, surrendered her equity of redemption in the land to the Equitable Securities Co. At the same time,’ in. the year 1897, the Equitable Securities Co. executed to Wilson a bond for titles to the land, and Wilson gave 'to the Securities Co. three purchase-money notes amounting to $1,154.94. In 1899, Wilson having paid said notes, the Equitable Securities Co. executed to him a warranty deed to the land. In 1903 J. W. Gibson, and Rosier Gibson by next friend, brought suit against Mrs. Gibson on the two notes given by her to them in 1889; judgment was rendered against her; and in 1904 the executions were levied upon the three hundred acres of land, to which levies Wilson interposed his claims. The plaintiff in fi. fa. in each case filed an equitable amendment in aid of his levy, and alleged, in substance, that the land levied upon has been, at all times since the creation of the debt to the Mortgage Co., worth $3,500 or $3,000; that when Mrs. Gibson executed the deed to Wilson in 1896, and when she executed the deed to the Equitable Securities Co. in 1897, she was insolvent or rendered so by making said deeds, and the deeds were without consideration and void, and a benefit was reserved to. Mrs. Gibson; that the only consideration of the deed to Wilson in 1896 was an agreement that he should hold the title to the land until he had paid off the incumbrance out of the rents and profits, and then he was to reconvey the land to Mrs. Gibson; that Wilson paid nothing but the $1,390 due on the loan, and he has received $450 per annum in rents from the place since Januarjq 1896, from which he had paid off the incumbrance out of the rents and profits, and in 1903 Mrs. Gibson tendered him "any balance that might be due him, which he refused; that Wilson held the title to the land in trust for Mrs. Gibson, and, having been repaid the sums which he advanced, he no longer has any interest in the land; that Wilson obtained the deeds to the land by representing to Mrs. Gibson that when he had paid off the incumbrance out of the rents and profits he would reconvey the land to her, and his conduct in claiming the lands absolutely is a gross fraud upon Mrs. Gibson and an abuse of her confidence in him; and that Wilson has actually paid less than half the value of the land. Paragraph fourteen of the amendment is in the following language: “If any of said sum [advanced by Wilson to pay the loan] is still unpaid and due said Wilson, the plaintiff stands ready to repay the same, that said land may be sold under the prayers hereof under said fi. fa.” The prayer of the petition is, “That said land. be found sub-. ject,” &c., and, “if said Wilson has any valid claim thereon for advances, that the amount thereof be fixed and made a first charge upon the proceeds of the. sale.” To this equitable amendment the claimant demurred generally. The court overruled the demurrer, and the claimant excepted pendente lite. The claimant also filed an answer, denying every material allegation in said amendments Upon the trial the jury returned a verdict in each case in favor of the claimant. The plaintiffs in fi. fa. moved for a new trial upon numerous grounds. The court overruled the motions, and the plaintiffs excepted. The claimant brings his cross-bill and assigns error upon his pendente lite exceptions.</p>

Action for breach of contract, etc. Before Judge Felton. Bibb superior court. December 3, 1906. Edward Wolff, for the use of Salomon Brothers & Company,, brought an action against the Southern Railway Company. The petition contained four separate counts, each being in lettered paragraphs.

Action for breach of contract. Before Judge Fite. Bartow superior court. November 6, 1906.

<p>Action for damages. Before Judge Littlejohn. Macon superior court. October 27, 1906.</p>

<p>1. A executed, to B an instrument under seal, which recites that for and in consideration of the sum of one dollar, the receipt of which is acknowledged, A “hereby sells [to B] his entire shingle output” between the first of March,’ 1905, and the first of March, 1906, local wagon trade excepted, at a stated price per thousand. B- did not agree to purchase the shingles nor to assume any obligation in respect thereto. Held, that, inasmuch as the writing was not mutually binding upon both parties, this was not a- contract of sale, but was merely an offer or ■proposal to sell.</p> <p>“2. It appearing, however, that the offer or agreement to sell was based upon a valuable consideration, it amounted to an option binding the promisor to make the proposed sale if accepted by the promisee, and was irrevocable until the expiration of the time agreed upon by the parties during which the offer was to remain open; and if acceptance were made within such time, it would complete the contract.</p>

<p>Question of jurisdiction, from Court of Appeals.</p>

<p>1. An assignment of error to the overruling of a motion to change the venue can not be made in a motion for a new trial, hut should be laid in exceptions duly made.</p> <p>2. In the trial of a murder case, if at the time of making declarations the condition of the wounded party making them, the nature of his wounds, the length of time after making the declarations before he expired, and all the circumstances make a prima facie ease that he was in the article of death and conscious of his condition when he made the declarations, such declarations should be admitted in evidence by the court, under proper instructions to the jury.</p> <p>3. The admission of dying declarations as evidence does not contravene that provision of the constitution of the United States which provides that in all criminal prosecutions the accused shall be confronted with the witnesses against him.</p> <p>4. Statements made by a defendant charged 'with murder, that he did the killing charged because of certain facts which, if true, furnished no legal excuse or justification therefor, amount to a confession.</p> <p>5. The evidence warranted the charge on conspiracy.</p> <p>6. No distinction need be made in an indictment, or in a verdict, between principals in the first and second degree; and where two persons are charged in an indictment with murder as principals in the first degree, if the evidence shows one of them to be guilty in the second degree, he can be convicted under such indictment.</p> <p>7. Points made in the record, but not referred to in the briefs of counsel, will be treated as abandoned.</p> <p>8. An assignment that a charge stating that the burden was on the defendant to prove an alibi by a preponderance of the evidence was error, because the defendant is only required to prove such defense to a reasonable certainty, is without merit.</p> <p>9. The assignment of error on the charge upon the subject of circumstantial evidence is without merit.</p> <p>10. Where two persons are jointly indicted for an offense, and there is evidence of a confession by one, he has no good ground for complaint that the court failed to charge that such evidence could only be considered as against him.</p> <p>11. Under the facts of this case, the defendant Porter Jones was not injured by the failure of the court to charge the jury that the evidence of statements made by the deceased to the effect that Albert Jones shot him, admitted as dying declarations, could not be used to show that Porter Jones shot the deceased.</p> <p>12. The charge upon the subject of good character was sufficient, in the absence of a timely written request for other instructions thereon. '</p> <p>13. The charge of the court, construed as a whole, could not have been understood by the jury to mean that if either one of the two defendants jointly indicted was guilty, both should be convicted.</p> <p>14. Where, on the trial of two persons charged with murder, the State proved by evidence, both direct and circumstantial, that a homicide was committed, and the accused did not controvert that fact, but introduced evidence which referred to the deceased as having been killed, and as to one of the accused sought to prove an alibi, and as to the other sought to. show insanity and previous good character alone, after conviction it furnished no ground for a new trial that the court in charging the jury referred to the death of the deceased as a homicide and told the jury that “The defendants in this case deny, both of them, that they were present and perpetrated the homicide, committed the homicide, or were present aiding and abetting in its perpetration,” there being nothing in the record or bill of exceptions to show that this was not a correct statement of the position taken by the accused, or their counsel, and the court having certified that there was no contention on the part of defendant’s counsel that a homicide had not been committed. (Atkinson and Holden, JJ., dissent from the ruling in this note.)</p>

Indictment for murder. Before Judge Parker. Ware superior court. June 15, 1907. Lyles was indicted, tried, and convicted for the murder of his wife, Eula Lyles. The evidence discloses that on the evening of January 30, 1907, the wife and infant child of Lyles were shot by the defendant on the front porch of the house where they lived in the city of Way cross, Ga., the wife dying immediately, and the ■child within a few hours.

<p>Indictment for murder. Before Judge Hammond. Burke superior court. July 8, 1907.</p>

Indictment for murder. Before Judge Hammond. Burke superior court. July 1, 1907. T. H. Moore, at the April term, 1907, of Burke superior court, was indicted, tried, and found guilty of the murder of his brother, John Moore, with recommendation that he be sent to the penitentiary for life. He made a motion for a new trial, and to the judgment overruling the same filed a hill of exceptions.

<p>Petition. Before Judge Kimsey. Habersham superior court. March 14, 190?1.</p>

<p>1. In the trial of one for murder, any pertinent fact which, of itself or in combination with other circumstances, tends to show a motive for the defendant to commit the crime charged against him is relevant. In ’ passing on an objection to testimony of this character, a remark by the court, that the solicitor states that he wishes to show the motive of the defendant, is not tantamount to an expression of opinion that the testimony to which objection is made is sufficient to' show motive on the part of the defendant.</p> <p>2. An instruction in a criminal ease that the “charge as made by the grand jury, on the one hand, and his [the defendant’s] plea of not guilty thereto on the other, forms an issue, and you are now trying the truth of that issue,” is hut a statement in general terms that the charge, as described in the indictment, and the defendant’s plea of not guilty form the issue in the case, and does not place the grand jurors in the attitude of prosecutors.</p> <p>8. In the trial of one indicted for murder, where the evidence to establish the homicide shows circumstances indicating that the slayer was actuated by malice, it is-proper to charge the jury that the law presumes every homicide to be malicious until the contrary appears from circumstances of alleviation, excuse, or justification, and that it is incumbent on the prisoner to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him.</p> <p>4. A defendant can not invoke an instruction upon the law as applicable to a particular phase of his ease, and thereafter demand a new trial because of the inapplicability of the instruction. If. in compliance with such request, the court’s charge be not technically accurate, and the inaccuracy is of such a nature that' it is manifestly harmless, a new trial will not be granted on this account.</p> <p>5. A charge, “If you are satisfied of the guilt of the defendant to a moral and reasonable certainty, and beyond a reasonable doubt, from the evidence, that he [the defendant] is guilty of murder, it would be your duty, and you would be authorized to find him guilty,” is not open to the objection that it amounts to a judicial invasion of the province of the jury.</p> <p>6. In the trial of one charged with murder, where the evidence relied on to convict is not wholly circumstantial, it is not error requiring a new trial for the judge, immediately after instructing the jury upon the particular punishments fixed by the law as a consequence of verdicts of guilty with and without recommendation, to add that “the court would have no power to change it, if it desired to do so.”</p> <p>7. The court fully charged on the defendant’s contention that he did not slay the deceased. Assignments of error not specially noticed are without merit. The deceased, according to the evidence introduced by the prosecution, was wilfully slain by the defendant. We find no error requiring the grant of a new trial.</p>

<p>Indictment for murder. Before Judge Worrill. Mitchell superior court. October 5, 1907.</p>

<p>Indictment for murder. Before Judge Beagan. Henry supe-' rior court. December 11, 1907. .</p>

<p>Indictment for murder. Before Judge Martin. Talbot superior court. December SI, 1907.</p>

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

<p>Where, upon a suit on a note for $1,000 principal, providing for interest and 10 per cent, of principal and interest as attorney’s fees, given for the purchase-money of a tract of land, a bond for title to which was given by the payee of the note to the maker thereof when the note was executed, the defendant pleaded an abatement in the purchase-price, and alleged and proved, that a house (estimated by the witnesses on the trial to have been worth from $125 to $400) on the land was destroyed 'by fire, without his fault and before he was given possession of the ■property, or the maturity of the note, and that before the suit was commenced he tendered $700 principal, besides interest thereon, to the ■plaintiff, who refused it, and defendant admitted that a notice as required by law had been given him by the plaintiff for the purpose of ■collecting such attorney’s fees, Held:</p> <p>■(I) No error was committed by the court in refusing to receive from the jury the following finding, offered as their verdict: “We find the value of the house to be $140 and find in favor of the tender,” or in requiring the jury to retire, under proper instructions, to render another finding as their verdict, as the two findings returned were inconsistent and the issues made by the pleadings and evidence were not covered thereby.</p> <p>¡(2) When the jury offered for the second time a finding as their verdict, upon the court being reminded that he failed to charge the jury with reference to attorney’s fees, there was no error in refusing to receive such finding as their verdict, which was as follows: “We, the jury, find for the plaintiff $941.30,” or in requiring the jury to retire again to render another finding, with instructions that the plaintiff would be entitled to recover 10 per cent, of principal and interest as attorney’s fees if the jury found that the defendant, at the time the tender was made, owed the plaintiff more than the amount tendered.</p> <p>;(3) Proof of the tender refused by the plaintiff before the suit was commenced did not destroy the plaintiff’s right to recover 10 per cent, of principal and interest as attorney’s fees on the amount of the verdict, as the jury found that the defendant owed, at the time of the tender, more than the amount tendered.</p> <p>■(4) When testimony is offered for one party, and counsel for the opposite party states, “I do not think that is admissible,” without stating any grounds of objection, he can not complain that the court committed error in admitting the testimony.</p> <p>•(5) The evidence warranted the verdict, and no good reason appears for disturbing the judgment of the court below in refusing a new trial.</p>

<p>Petition for injunction. Before Judge Reagan. Henry superior court. December 14, 1907.</p>

<p>Under the facts of this ease, the court did not err in refusing to appoint a receiver.</p>

<p>Indictment for murder. Before Judge Worrill. Terrell superior court. February 8, 1908.</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. June 8, 1907.</p>

<p>In view of the evidence introduced in this case and the statement made by the prisoner, it was error on the part of the presiding judge to refuse a written request of counsel for the accused to give in charge to the jury the law of involuntary manslaughter.</p>

Mandamus. Before Judge Pendleton. Fulton superior court. December 24, 1907. The defendant in error was sued by John Carter, in the justice’s court over which the plaintiff in error presided as notary public and ex-officio justice of the peace. From the judgment of the justice in favor of the defendant, Carter entered an appeal to a jury in the justice’s court.

<p>Petition for alimón}'. Before Judge Pendleton. Fulton superior court. December 27, 1907.</p>

<p>1. As the verdict rendered was not required by the law and the evidence, this court will not disturb the first grant of a new trial.</p> <p>2. When a judgment granting a new trial is affirmed, questions raised by assignments of error upon pendente lite exceptions can not be considered and determined.</p>

<p>Complaint. Before Judge Hammond. Richmond superior court. April 18, 1907.</p>

<p>Action for damages. Before Judge Felton. Houston superior court. April term, 1901.</p> <p>The action was for damages on account of a fire which injured certain pecan trees of the plaintiff near the railroad track of the defendant, it being alleged that the fire was communicated from a passing engine. The plaintiff testified, in part: “When I got there the thing, was burning on the far side of my grove from the railroad track, and had spread all over it, and the stubble was all burning along the embankment and right of way; it was still smoking and some of it burning, but mostly smoking; it had nearly all been burned over. It was charred and blackened by reason of its having been consumed by the blaze. The leaves were all burned and the orchard was in a very withered condition. The leaves were all burned and the bodies of the trees were all blackened and charred. This was the 13th of September, and the leaves had possibly a month to go until frost. They were in a vigorous state of greenness before the fire, but they were entirely blasted and burned by it. . . The wind was blowing across the railroad track running out of Fort Valley towards Marshallville, right over my orchard here [indicating]. It was blowing right across the railroad, over my pecan orchard, in something of an east to west direction. I noticed the condition of the right of way before the fire. It had broomsedge, about that high [indicating about as high as a man’s waist], and every kind of inflammable stuff all along the embankment of the railroad. There were some there from the growth of the year before. The railroad ran upon an embankment at’ that point. It was not very high. My grove adjoins the right of way. I could not say just how far from the railroad track; I presume about 70 feet. The right of way is about 70 to 75 feet from the center of the road. . . I had cut the hay from that grove about a week or two before the fire. I can not say that the leaves on the trees had begun to turn, from the efféets of the fall, on the 13th day of September. The stubble there was broomsedge on the right of way, and it was brown. There was some of my cut hay on the ground. It rained a day and half after I cut the grass; and there was some I had failed to bring up im rows, and that on the ground was destroyed by the fire. . . I suppose it is some 60 or 70 feet from my nearest pecan tree to an occupied house. That house is in a somewhat northerly direction from the grove, and the wind was blowing from the grove towards the house, kind of quartering.” Fannie Hill testified, in part, as follows: “I first saw the fire up side of the railroad. It was on the right hand side of the railroad, going towards the crate factory. It was close up to the railroad, not far from it. It made a large fire. It went right over that pecan orchard and come over towards my house. I had seen a train going along the railroad. It was a long'freight train. It wasn’t long before the fire. The train hadn’t got out of sight before the fire started, but I can’t say the train did it. It was going from Fort Valley, out towards Albany. It was smoking when it went along there.- I was about as far as from here to that tree [indicating a tree about 80 feet away] from the fire. I was on the same side of the railroad. My house was the closest house to the pecan grove that was there. I saw what it was that caught fire close to the railroad. It was straw, green straw. It was not ■so green; it was not so dry; it was betwixt and between. It was •closer to my house than it was to the factory that the fire started. It started closer to the railroad than it did to my house. It was lots closer to the railroad than it was to my house. I had been at lióme all that morning. . ; I don’t know how long the fire had been burning when I saw it, but I saw the smoke just as it kindled up. I don’t know how long it had been there. I saw the smoke as it was coming up. It hadn’t blazed up when I first saw it. I Raw the smoke before I saw the fire or light. I can not say what it was that caused it to blaze. I do not know how long it had been “there. People frequently walk along the track on the railroad,— every day. I don’t know whether somebody threw a cigar there, ■or the engine threw a spark, or somebody dropped a spark out of “their pipe, or what. I never saw anybody go along there after I saw the train go by before I saw the fire. I was washing in the back yard. That was in plain view of the place I saw the fire. I ■don’t remember seeing any one going along the railroad track. I never saw any fire there before the train passed. No, of course, I mever saw any fire until it blazed up. I don’t know whether anybody passed just before or after the train, or not. I saw the train •go by. I did not see it emit any sparks. I did not see any live •coals coming out. It was making a powerful smoke, but I never :saw any sparks.”</p>

<p>Petition for mandamus. Before Judge Worley. Wilkes superior court. November 7, 1908.</p>

<p>Motion for new trial. Before Juclge Hamilton. Floyd superior ■court. January 14, 1907.</p>

<p>1. The municipal authorities of the City of Rome can lawful!^ have a street therein, the grade of which has been previously established on the city’s initiative, brought to such grade without first having the •damages which a landowner will suffer by reason thereof assessed and paid, or tendered, when none of his property is actually taken; such ■grading not being done in pursuance of the general plan or system contemplated by the eighth section of the act of 1907 amending the charter of such city.</p> <p>2. The case of Moore v. Atlanta, 70 Ga. 611, reviewed and reaffirmed.</p>

Petition for injunction. Before Judge Freeman. Carroll superior court. September 27, 1907.

<p>Constitutional question, from the Court of Appeals.</p>

<p>'The act of the General Assembly creating the city court of Vienna (Acts 1901, p. 189), in so far as it seeks to provide that the court shall have jurisdiction to try an issue founded on the counter-affidavit made in resistance to a warrant to dispossess a tenant holding over, is not unconstitutional and void in that it is contrary to article 1, section 4, paragraph 1, of the constitution of the State of Georgia, which provides that “Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law,” on the ground that there is a general law (Civil Code, § 4816) which provides that such issues shall be tried in the superior court of the county where the land lies, and that the act above referred to, creating the city court of Vienna, is a local law covering the same subject-matter.</p>

Indictment for murder. Before Judge Worrill. Miller superior court. January 2-1, 1908. Sonnie Williams was convicted of murder, for the killing of Almond Ward, and his motion for a new trial being overruled, he excepted. Both the accused and the deceased were negro convicts,, confined in a prison stockade at the time of the homicide.

<p>1. An instruction is not erroneous which defines a reasonable doubt as one arising out of the case, either from the want, weakness, insufficiency, or conflict in testimony, and which leaves the mind of an honest juror wavering and in doubt as to the guilt of the accused,1 — -a doubt which is not a mere conjecture, but one for which the jury can assign a reason, from having heard the whole case.</p> <p>2. Having charged as to the weight which might be given to the prisoner’s statement, it was not necessary, in defining a reasonable doubt, for the judge further to say that it might arise from the defendant’s statement..</p> <p>3. In connection with a charge on the credibility of witnesses, an instruction that the jury should observe their demeanor and conduct in the delivery of their testimony, and take into consideration, if such appears from the testimony, the relationship, bias, or prejudice of any witness, is not ground for a new trial because the court used the word “should” instead of “may.”</p> <p>4. A charge on the subject of character, that “It is contended that evidence has been introduced that shows the defendant to be a man of good character. I charge you that evidence of good character may be taken, into consideration by you not only in passing upon the guilt or innocence of the defendant, but also as to whether or not such character may of itself be sufficient to generate a doubt in the mind of the jury as to the guilt of the accused,” is not open to the criticism that the prefatory statement, that it was contended that evidence as to good character had been introduced, tended to impair and destroy the force and value of the evidence relating to the good character of the defendant.</p> <p>5. The court having fully and accurately instructed the jury on the law touching the prisoner’s statement, a charge that the jury get the facts from the witness stand, and from no other source, when considered in its context, did not restrict the jury to the testimony and eliminate from their consideration the prisoner’s statement, in reaching a verdict.</p>

Motion to set aside judgment. Before Judge Martin. Pulaski superior court. February 14, 1907. The Town of Frazier brought suit upon a bond given by B. N. Lupo, as clerk and treasurer of the'Town, and obtained a verdict and judgment at the August term, 1905. No motion for a new-trial was made, or bill of exceptions taken, but during the term Lupo made a motion to set aside the verdict and vacate the judgment, without asking for or obtaining a supersedeas.

<p>Habeas corpus. Before Judge Hammond. Bichmond superior-court. July 23, 1907.</p>

<p>Action for damages. Before Judge Cann. Chatham superior ■court. May 3, 1907.</p> <p>' Anton Motz brought suit against the Central of Georgia Railway Company to recover damages for the homicide of his son, Horace. The petition alleged, among other things, as follows: "On November 29th, 1905, plaintiff’s son, a boy nine years of age, went with two companions, boys of about the same age, to a public-.road crossing over the tracks of the Central of Georgia Railway, in the unincorporated town of Pooler, in Chatham county. His ■companions were expecting some freight, consigned to their'parents, to arrive on a local freight train.bound from Savannah to Macon. Plaintiff’s son intended to assist his companions in .moving the freight after the same had been delivered to them. The local freight train was then standing on the main line of the ■defendant, and freight was being unloaded over skids extending from the cars across the side-track, which lay between the main line and the station building, to the platform of the station. While the freight train was being unloaded, the public-road crossing was obstructed by the standing cars, and plaintiff’s son and his two companions stood on the public crossing between the sidetrack and the main line, not more than twenty steps from the .station. They were in plain view of the crew of the freight train unloading freight. While the boys were standing on the crossing, ■a through freight train, bound from Macon to Savannah, approached. The crew of the local freight train, in order that it might stand on the main line and be unloaded, had opened both switches of the side-track, to permit the through train to pass. The through train entered the west switch of the side-track at a ■speed of about twenty miles an hour, and, without blowing the whistle, or ringing the bell, or checking its speed, or otherwise ■complying with the requirements of the law, proceeded along the ■side-track toward the crossing. The plaintiff’s son and his companions neither saw nor heard the through train as it approached the crossing, because the local train which was standing on the main- line was put in motion, thus engrossing their entire attention. The noise made by the moving of the local train prevented the boys from hearing the approach of the through train until it was upon them, and they were caught in the narrow space between the two tracks on which the moving trains were passing. Frightened and terror-stricken, they endeavored to escape from their perilous position by running on the ground between the two trains until they could outdistance the engine of the local train and pass ■over the track in front of it. While thus endeavoring to escape, plaintiff’s son was struck, run over, and killed by the through "train. The plaintiff’s son was a strong, healthy boy, and was rendering to him, prior to the time of the son’s death, services of the value of five dollars per month, and his earning capacity would increase. At the time oi the homicide the boy was in the exercise-of all due, ordinary, and reasonable care, and his death was due to the gross carelessness and negligence of the defendant company, in that its employees in charge of the local train did not clear the-public crossing, “as required by law,” and did not warn the plaintiff’s son of the approach of the through train before the local train was put in motion, and in that its employees in charge of' the through train did not comply with the law while approaching-the public crossing, by blowing the whistle, ringing the bell, and checking and keeping checked the speed of the train, and in not stopping the through train when the perilous position of plaintiff’s son was discovered, or could have been discovered in the exercise of ordinary care.</p> <p>The defendant demurred generally to the petition. The demurrer was overruled, and it excepted.</p>

<p>Action for damages. Before Judge Cann. Chatham superior court. June 13, 1907.</p> <p>Crawford brought suit against the Savannah Electric Bailway Company to recover damages, on account of an alleged injury to his person and damage to his automobile resulting from being-struck by a street-car of the defendant. He afterwards abandoned the claim to recover on account of any injury to his person. He alleged, that he was in the exercise of all ordinary care and diligence, and in nowise contributed to the collision, which was due solely to the negligence and carelessness of the company, its servants and agents, in certain named particulars.</p> <p>The defendant denied all of the allegations' of the petition except that it was a corporation under the laws of this State, with an agency in the city of Savannah, and that it operated and maintained a system of electric railway, as alleged by the plaintiff. It is also alleged, that “if the plaintiff or his property suffered any damage at all, it was due to his own negligence and want of care, and not to any negligence and want of care upon the part of this defendant.” The evidence for the plaintiff tended to show, that on a rainy day he was passing along a public street in an automobile, with the curtains up; that for some distance the machine was on the street-car track; that finally he turned to go to the place where he intended to stop; that before crossing the track entirely, one of the defendant’s cars, approaching from behind,, struck the rear wheel of the automobile, injuring it and putting the plaintiff to considerable necessary expense for repairs and for the hire of another machine, which it was necessary for him to use until the first could be put in order; that the machine could have been seen by the defendant’s employee on the car for a long distance before it was struck; and that the car was run at a high rate of speed, in excess of that allowed by the municipal ordinance, and without giving any signal or warning of its approach.</p> <p>The evidence for the defendant tended to show, that the ear was running slowly, within the speed limit permitted by the ordinance; that the bell was rung continuously for some distance; that the plaintiff’s automobile was being driven, not on the track but alongside it; that the collision was caused by the machine being turned across the track in front of the car when the latter was very near at hand; that there was no negligence on the part of the defendant’s employees, who were unable to stop the car before it struck the automobile. There was no conflict-in the cvidouce as to the expenditure rendered necessary by the plaintiff. The jury found that amount in his favor. A motion for a new trial -was made on the grounds, among others, that the verdict was contrary to the evidence; that the court charged that “If you fin'd the plaintiff is entitled to recover, he would be entitled to recover such an amount as you find was reasonably and necessarily incurred as the direct and proximate result of the collision;” that he failed to charge the law in regard to the apportionment of damages if both parties were at fault; and because the court allowed counsel for the plaintiff to ask a witness the following question: “Does that report [referring to a written instrument] state that the gong was rung for. four or for four and a half minutes?” To this the witness answered, “No, sir, I didn’t exactly state that in the accident report.” The witness under examination was the conductor of the defendant’s car. On cross-examination he stated, that he had made out an accident report for the company, that counsel for the defendant hád given him the report to read, and he had refreshed his memory from it. The question and answer above stated were then allowed. On redirect examination the report was handed- to him, and, after looking at it, he said: “I see the language I put there. I reported to the company that the motorman kept ringing his gong, but not from 31st street. I didn’t state that he kept ringing it from 31st street, but I stated that he kept ringing his gong.”. The motion was overruled, and the defendant excepted.</p>

<p>Ejectment. Before Judge Seabrook. McIntosh superior court. February 2, 1907.</p>

Petition for injunction. Before Judge Kimsey. Babun superior court. November 44, 1907. LaFayette Wall brought suit against the town of Clayton and its municipal authorities for an injunction.

<p>A paid his own money to a railroad agent, for which the agent agreed to issue a railroad ticket and cause it to be delivered at a distant place to B, the married daughter of 'A, to be used by B in' traveling 'over the road of the agent’s principal, in coming to the home of A. The agent failed to issue the ticket or to cause a ticket to be issued and delivered to B. Because of failure to receive tlie ticket, B was delayed in making the trip, and suffered injury. Suit was instituted against the railroad •company by B, for damages alleged to have resulted from a breach of contract. Held, that there was no privity of contract between B and the railroad company, and that the petition was open to general demurrer.</p>

<p>Action for breach of contract. Before Judge Little. Muscogeesuperior court. January 25, 1907.</p> <p>The suit was against the Columbus Crate Company for damages-arising from a breach of a parol executory contract for the sale-of goods exceeding $50 in value. The petition as amended alleged “1. Your petitioner shows that on April 12, 1906, petitioner and-said Columbus Crate Company entered into an oral contract, whereby the said Crate Company agreed and contracted to deliver to youT petitioner at Fort Yalley, Ga., 50,000 peach carrier crates, and petitioner agreed to pay for same, at and for the price of 111/2 cents per crate, and it was further provided in said contract that petitioner had the privilege of increasing the number of said crates to 60,000 by notifying said Columbus Crate Company on or before April 24, 1906. 2. Petitioner shows that he did exercise the privilege of increasing said order to 60,000 crates, and so notified the said Columbus Crate Company before April 24, 1906. 3. Petitioner shows that all of said crates were to be delivered at Fort Yalley, Georgia, between June 15th and July 1st, 1906, but it was subsequently .agreed between the parties that delivery might commence prior to June 15, 1906, and the said Columbus Crate Company delivered to petitioner, under said contract, 10,500 of said peach carrier crates on or about June 1st, 1906, and petitioner accepted and paid for said crates. 4. Petitioner shows that subsequently to the delivery of said 10,500 crates, to wit, on June 5th, 1906, said Columbus Crate Company notified your petitioner that they would,not complete and carry out said contract by delivering the remainder of said crates. 5. Petitioner shows that at the time-•said Columbus Crate Company notified petitioner that they would not fill the remaining portion of said contract, yoiir petitioner went into the open market and bought peach carrier crates of the same quality as those offered in said contract by the said Columbus Crate Company for the purpose of supplying his demands, at and „for the price of 15 cents per crate, which was the market price at that time delivered at Fort Yalley, Georgia. 6. Petitioner shows that the difference between the contract price and the market price at the time of the breach of said contract was 3 1/2 cents per crate delivered at Fort Yalley, Ga., and the difference between the contract price at the time of said breach of said contract was $l,732r50, in which said sum the said Columbus Crate Company has injured and damaged your petitioner, and refuses to pay your petitioner.”</p> <p>The defendant demurred on the following grounds: “1. Because the allegations in said petition do not set forth any cause of action. 2. Because the amount of crates alleged to have been contracted for were more than $50 worth, and the petition does not show that the contract was in writing, or that the buyer accepted any part of the goods or crates sold and actually received the same, or that something was given in earnest to bind the bargain, or in part payment. 3. Because it is not alleged that there was such a part performance as would render it a fraud of the part}! refusing to comply, if the court did not compel a performance. 4. Because it is not alleged that the plaintiff agreed to accept the said crates or pay any sum whatever for them, and said alleged contract is shown to be unilateral, and it is not alleged the plaintiff agreed to do anything or that he promised to do anything on his part. 5. Because it is not alleged that the plaintiff accepted a part of the goods or crates and actually received the same at the time the alleged contract was made. 6. Because no valid binding contract between the parties is alleged. 7. Because the petitioner does not show that any promise was made in writing, signed by the party sought to be charged therewith, or some person by him or it lawfully authorized.” The demurrer was overruled, and the defendant excepted.</p>

<p>Garnishment. Before Judge Littlejohn. .Schley superior court. June 2, 1907.</p> <p>An attachment was sued out against the Louisville & Nashville Railroad Company, on the ground that it resided out of the State; and summons of garnishment, based thereon, was issued, directed to the Central of Georgia Railway Company, requiring the garnishee to answer at the April term, 1907, of the superior court of Schley county, to which the attachment was returnable. The officer’s return of service recited that it was served personally on the agent of the Central of Georgia Railway Company, in charge of the office and place of business of said company in Schley county. At the April term of the court, the garnishee moved that the garnishment be dismissed, on the following grounds: “1st. Defendant is a non-resident of said State of Georgia, as appears from the attachment upon which the garnishment was issued. 2d. The garnishee, the Central of Georgia Railway Company, is a resident of Chatham county in said State of Georgia, such residence being fixed by the public laws of said State; and the superior and city courts ofChatham county, Ga., only, have jurisdiction of this garnishee in .this garnishment proceeding. 3d. The superior court of Schley •county is without jurisdiction to entertain such garnishment proceedings or to render judgment thereon, the garnishment having-been issued upon an attachment based upon the non-residence of the defendant in this State, the residence of this garnishee being fixed by the public laws of this State in the county of Chatham in the State of Georgia, and the garnishee having no residence in the county of Schley, said State. 4th. The defendant being a nonresident, the situs of any debt that may be due to it by the garnishee is at the residence of the garnishee, which is in the county of Chatham, said State, the situs being so made by the act of the legislature approved August 13, 1904.” The court overruled this motion, and the garnishee excepted.</p>

<p>Petition for alimony. Before Judge Whipple. Ben Hill supe-, rior court. November 14, 1907.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. April 15, 1907. In 1903 G-. S. Spofford executed and delivered to W. J. Lunsford a bond for title obligating the maker to convey to Lunsford a described tract of land upon the payment- of the notes therein described.

<p>Equitable petition. Before Judge Worrill. Clayton superior court. August 31, 1907.</p>

<p>Distraint. Before Judge Hammond. Richmond superior court. March 30, 1907.</p>

<p>1. The result of sustaining a general demurrer to a petition, on the ground that it appears on the face thereof and from the account annexed thereto that the defendant is not indebted to the plaintiff, but that, -on the contrary, the plaintiff is indebted to the defendant, ’ should be to dismiss the petition; not to retain the action in court and find in favor of the defendant, on a plea of set-off against the plaintiff, on the ground of such admission. . 4</p> <p>2. - Under the allegations of the petition in this case, the ruling indicated in the preceding headnote was erroneous.</p> <p>3. Such ruling apparently so entered into and affected the entire finding of the auditor that the judgment is reversed, and direction given that the case be rereferred for a new trial.</p>

Action for damages. Before Judge Cann. Chatham superior court. March 19, 1907. J. W. Freeman brought suit against the Savannah Electric Company, alleging, in brief, as follows: 'He was-a motorman employed by the defendant, and was engaged in running one of its cars. A brake which he was using as motorman was out of order on account of the “shoe” being worn out, so as not to catch.

<p>Action for damages. Before Judge Cann. Chatham superior court. May 3, 190?.</p>

Action for damages. Before Judge Cann. Chatham superior court. May 15, 1907.

<p>Complaint. Before Judge Cann. Chatham superior court. June 7, 1907.</p>

<p>Petition for injunction. Before Judge Cann. 'Chatham superior court. October 12, 1907.</p>

<p>Petition for alimony. Before Judge Cann. Chatham superior ■court. July 27, 1907.</p>

Injunction. Before Judge Holden. Elbert superior court. July 1, 1907. Cornelia A. Deadwyler and others filed an equitable petition against J. R. Mattox, plaintiff in fi. fa., and the sheriff of Elbert-county, seeking to enjoin a sale under execution. They alleged,, in brief, as follows: Cornelia A. Deadwyler is.the widow and also-the executrix of the will of Henry R. Deadwyler, deceased.

<p>Motion to tax costs. Before Judge Wright. Floyd superior court. June 7, 1907.</p>

<p>1. The owners of a sawmill can not lawfully throw the sawdust from their mill into a non-navigable stream, if the effect will be to pollute the water so as to render it unfit for farm purposes by lower riparian owners, or to clog the bed of the stream so as to cause its water to overflow and deposit large quantities of sawdust upon the lands of the lower owners, where such overflow and deposits will impair the value of the land.</p> <p>2. Several lower riparian landowners have such a community of interest and right in the enjoyment of a non-navigable stream that they may join in a petition to restrain an upper proprietor or a stranger from causing it to overflow and injure their lands, or from adulterating its water.</p> <p>3. On an interlocutory hearing for injunction, affidavits which are not “intituled in the cause,” and which make no reference to the case or the court where the case is pending, are not admissible in evidence.</p> <p>4. Where the refusal or grant of an interlocutory injunction depends upon -an issue of fact, and illegal testimony strongly supporting the successful party’s contention has been considered by the judge in reaching his decision, the judgment will be vacated and a new trial ordered.</p>

<p>Action for damages. Before Judge Worrill. Miller superior court. August 3, 1907.</p>

Partition. Before Judge Spence. Worth superior court. April ■22, 1097.

<p>Where land belonging to the estate of a decedent is set apart as a year’s: support to his widow and minor children, the widow may sell and convey it for the purpose of maintenance and support of herself and children, or, if the children are of age and have left the land, for the support of herself. The sale and conveyance by the widow divests the title of the children as heirs of the decedent, and also their claim upon the land as beneficiaries under the allowance of a year’s support.</p>

<p>Complaint for land. Before Judge Pendleton. Fulton superior (‘court. January 18, 1907.</p>

<p>1. The admission of testimony as to the statements of a party other than the defendant, in a criminal case, over objection made on the ground that it was hearsay, was not error requiring a new trial, in view of the statement made by the court at the time, as to the purpose of its admission and the limitation of it by the court to such purpose, and in view of other testimony regarding such statements, by the witness giving the testimony and by the person whose sayings were testified to, going to and remaining before the jury without objection.</p> <p>2. Any statement or conduct of a person which indicates a consciousness of his being guilty of a crime which has been committed, where at the time or thereafter he is charged with or suspected of the crime, is admissible as a circumstance against him, upon his trial for having committed it.</p> <p>:3. Where a threat is made to kill some one, and the testimony indicates that the threat was directed against a person who was afterwards murdered, evidence of such threat is admissible against the person making it, upon his trial for such murder.</p> <p>■4. The evidence warranted the verdict, and no sufficient reason appears for disturbing the judgment overruling the motion for a new trial.</p>

Injunction. Before Judge Roan. DeKalb superior court. July 6, 1907. Held: there came on to be considered the above and foregoing petition of the Town of Decatur for a lease for a term of 99 years of that part of the public square described in said petition, to be used for the purpose, therein set out, upon the conditions therein specified.

<p>Petition for mandamus. Before Judge Cann. Chatham superior court. June 22, 1907.</p>

Complaint. Before Judge Seabrook. Bryan superior court. March 30, 1907. James IT.

Petition for mandamus. Before Judge Felton. Crawford superior court. November 29, 1907. • This is an application by J. W. Dennington against the mayor and council of the town of Roberta, for the writ of mandamus, to ■compel the levy and collection of a tax to discharge an amount alleged 'to be due for services rendered under a contract with the school commissioners of that municipality.

Injunction. Before Judge Iiolden. Elbert superior court. July 6, 1907. Adams filed an equitable petition against the City of Elberton, and Maxwell and Cleveland, as assessors, seeking to enjoin certain condemnation proceedings.

<p>Equitable petition. Before Judge- Mitchell., Brooks superior court. July 12, 1907.</p>

<p>Equitable petition. Before Judge Parker. Glynn superior <court. .June 5, 1907.</p>

<p>Petition for injunction. Before Judge Ellis. Fulton superior court. January 23, 1908.</p>

Certiorari. Before Judge Pendleton. Fulton superior court. June 27, 1907. Lillie C. Burdett, widow of W. C. Burdett, applied to the court of ordinary for a year’s support from his estate. Appraisers wore appointed, and in their return allowed $100 for the applicant. Upon objection of the administrator of the estate, the return was set aside and the year’s support disallowed. Mrs. Burdett then applied for a writ of certiorari, which was granted.

Complaint. Before Judge Hammond. Richmond superior court. July 5, 1907. T. C. Crawford, trustee in bankruptcy of the Augusta Debenture Company, Limited, brought suit against Henry C. Roney, alleging, in brief, as follows: The company is a domestic corporation. It was duly adjudged a bankrupt, and the plaintiff was elected and qualified as trustee.

<p>Action for damages. Before Judge Seabrook. Bryan superior court. April 20, 1907.</p>

<p>Petition for injunction. Before Judge Holden. Wilkes superior court. October 1, 1907.</p>

<p>Affidavit of illegality. Before Judge Kimsey. Hall superior ■court. January 18, 1907.</p>

<p>1. In a suit for injunction against trespass by cutting and removing timber from land, tlie plaintiff alleged, and introduced evidence, that one-of the defendants had sold the land to her in consideration of her agreement to pay an annuity to the vendor, and that on the faith of this contract she went into possession of the land, paid taxes and made-valuable improvements on it, and paid the annuity. Held:</p> <p>(a) The refusal of the vendor to make a deed in accordance with the-contract would not prevent the vendee from securing an injunction! against such trespasses.</p> <p>(&) It would not be necessary upon the trial of such a case for thevendee to show title in the vendor.</p> <p>,(c) Where the vendor,-and others acting for the vendor, are removing- and threaten to continue from day to day to remove timber from the; land, the vendee is entitled to an injunction against such trespasses.'</p> <p>2. Under the facts disclosed by the record, the court did not abuse- itsi discretion in granting an interlocutory injunction.</p>

^Equitable petition. Before Judge Edwards. Paulding superior court. June 4, 1907. This is a petition by John E. Griffin against Lilia Griffin, W. A. B. Ragsdale, and B. E. Croker, ordinary, to annul a marriage, to cancel a bond given by the plaintiff to the ordinary, pursuant to the Penal Code, §388, for the purpose of stopping a prosecution for seduction, and to enjoin any action to enforce the bond until .a final decree may be rendered.

<p>Complaint for land. Before Judge Freeman. Heard superior court. March 20, 1907.</p>

<p>Injunction. Before Judge Ellis. Fulton superior court. October 1, 1907.</p>

<p>1. An instrument purporting to be a codicil to the last will and testament of one deceased, which unequivocally identifies the will to which it is alleged to be a codicil, becomes effective as such when duly executed and probated, although not physically attached to the will.</p> <p>2. Since tlie change made by the act of 1866, and the adoption of the constitution of 1868, in the status of married women in respect to rights of property, a married woman may make a valid will disposing of the property constituting her separate estate, without the consent of her husband or any authority vested in her by virtue of a marriage contract between her and the husband.</p>

Equitable petition. Before Judge Felton. Bibb superior court. April 16, 1907. B. W. Hutchinson brought suit to cancel the deeds hereinafter described, and to enjoin Mrs. Wiley, as administratrix of the estate of Mrs. M. L. Beid, from the sale of land which she was advertising for sale as property of Mrs. Beid’s estate, and from disposing of the rents from the land in her hands. A general demurrer to the petition was sustained, and the plaintiff excepted.

<p>Levy and claim. Before Judge Brand. Walton superior court. May 13, 1907.</p>

<p>Action for damages. Before Judge Iiimsey. Habersham superior court. February 7, 1907.</p>

<p>1. A ground of a motion for a new trial which complains of the admission of certain documentary evidence, but which neither states what objection, if any, was made to its introduction, nor shows what the contents of the writing were, presents no question for determination by a reviewing court.</p> <p>2. The verdict was not warranted by the evidence; and the trial court, therefore, erred in not granting a new trial upon the general grounds of the motion therefor.</p>

<p>Complaint. Before Judge Edwards. Polk superior court. February 28, 1907.</p>

Action for penalty. Before Judge Lewis. Jasper superior court. March 25, 1907. G. W. Polk sued D. C. Thomason to recover the statutory penalty prescribed by the act of December 17, 1901 (Acts 1901, p. Defendant demurred, generally and specially, to the petition. The demurrer was sustained and the petition dismissed, and the plaintiff excepted.

<p>Complaint. Before Judge Freeman. Heard superior court. April 30, 1907.</p>

Petition for injunction. Before Judge Worrill.. Early superior court. August 3, 1907. In 1887 the public road leading from Blakely to the Port Gaines and Newton road at Liberty Hill church was duly established by the board of commissioners of roads and revenues of Early county. In 1894 certain citizens applied to them for an order allowing a change to be made in this road.

Equitable petition. Before Judge Whipple. Ben Hill superior court. May 21, 1907. Held: and was entitled, as far as the City of Fitzgerald whs concerned, to all the rights and benefits arising under the licenses.

<p>1. Where a claimant who dissolves a garnishment by giving the necessary bond, and who receives from the garnishee the amount of the debt ad1 mitted in his answer to be due the defendant, files a traverse to such answer, alleging only that the garnishee owes the claimant and does, not owe the defendant'such debt, Held:</p> <p>(а) The garnishee has no right to object to such traverse.</p> <p>(б) Notice need not be given to the garnishee of the filing of such traverse, as no judgment can be rendered against him upon the trial of the issue made by such answer and traverse. The act of the General Assembly approved December 21, 1897 (Acts 1897, p. 54), does not require notice of a traverse of a garnishee’s answer to be given him, except when a judgment may be rendered against him upon the trial of an issue made by his answer and a traverse thereto.</p> <p>2. When there is an issue pending because of the existence of a traverse filed by a claimant in a garnishment case, he has the right to file a “plea” alleging that the judgment upon which the summons of garnishment issued has been settled, with such rights thereunder as the law gives him upon the trial of such garnishment ease.</p> <p>-'3. Upon the trial of a garnishment case, to prove the existence of a judgment upon which summons of garnishment was issued, a duly certified ■ copy of such judgment only is sufficient evidence.</p>

<p>1. Affidavits made for use as evidence on the hearing of a proceeding to attach for contempt should be' entitled in the cause.</p> <p>2. If the affidavit is not formally entitled, but on its face identifies the ease in which it is to be used, this will be sufficient to allow it to be admitted.</p> <p>S. Where an application was made to enjoin unfair competition in trade and encroachment on a trademark, and an injunction was granted, a • proceeding to have the defendant and its agents or officers attached for contempt, for violating such injunction, was one growing out of or connected with the original injunction case, and affidavits entitled in the name of such original case were not inadmissible in evidence, upon objection on the ground that they were not properly entitled.</p> <p>4. That such affidavits were made after the grant of the injunction, and before commencement of proceedings to attach the defendants, did not render them inadmissible on the ground that they were entitled in the main cause, and were made before commencement of the proceeding in attachment.</p> <p>5. If an affidavit has neither title nor reference, nor other indicia showing that it is to be used in a ease, this defect can not be supplied by an-affidavit of another person, that he prepared a form of affidavit for the witness to make for use in the' case, but that the latter declined to execute it and afterwards made another affidavit, which was written on the back of the unsigned form which had been prepared.</p> <p>6. Newspaper advertisements or articles not shown to have been either authorized or ratified by the respondents were not admissible on the hearing of a proceeding to attach such respondents for contempt. Nor was an assertion in one of such articles, that one of the respondents made certain statements, evidence of that fact, without more.</p>

<p>Action for damages. Before Judge Gober. Cobb superior court. March 23, 1907.</p>

<p>’ Possessory warrant. Before Judge Wright. Floyd superior court. May 8, 1907.</p>

Before Judge Little. Muscogee superior court. August 9, 1907. The case of Charles E. Taliaferro against the Columbus Bail-road Company was tried on May 8, 1907, in Muscogee superior court, and a verdict rendered for the plaintiff.

<p>Equitable petition. Before Judge Parker. Ware superior court. August 10, 1907.</p> <p>T. F. Dyson, administrator of Thomas Dyson, deceased, filed an equitable petition against Knight and Pittman, seeking to enjoin them from cutting timber, or otherwise trespassing, on land lots Nos. 331 and 332 in the 8th district of Ware county. The plaintiff alleged, that these lots were granted to Thomas Dyson in 1850; that letters of administration de bonis non cum testamento annexo upon the estate of Thomas Dyson were issued to him by the court of ordinary of Thomas county in 1903; that leave to ■sell said land had been duly granted by the ordinary; and that the defendants were inflicting irreparable damage upon the estate, by cutting and removing timber from said land. The defendants in their answer admitted having entered upon the land and cut timber therefrom, but alleged that they were the owners of the land. They admitted that these lots were granted by the State to Thomas Dyson, deceased, but averred, that the lots were conveyed by him to one Stovall, trustee for S. C. Butts, in 1850; that .subsequently one A. G. Butts was substituted as trustee in the place of Stovall, and, in 1888, sold and conveyed the land to one ■Cribb; and that by several subsequent conveyances the title to the land became vested in Knight, one of the defendants. The defendants also claimed title to the land by prescription.</p> <p>The case was submitted to a jury, and a verdict was rendered in favor of the defendants. The plaintiff filed a motion for a new trial upon the following grounds: (1-3) The general grounds. (4)' “Because the following material evidence was illegally admitted to the jury, over objection of this applicant, viz.: J. C. McDonald, witness for' the defendants, in testifying as to his search among the papers of the Southern Pine Company of Georgia for a deed alleged to have been made from Thomas Dyson to iStovall, as trustee for Mrs. Sarah C. Butts, said,. ‘J had before, ■in my examinations, found a memorandum there. That memorandum was in the handwriting of Brantley. A. Denmark of Savannah. That memorandum is lost; I could not find it. I have seen it, though, and it belonged to be filed in this deed, which I hold in my hand, from A. G-. Butts, trustee, to Dodge and Stokes, covering quite a number of lots, and dated May 10, 1870. It was nothing but a pencil memorandum; I remember the memorandum, that was there. Col. Denmark acted as general counsel of the old Waycross Lumber Company and as general counsel of the ■Southern Pine Company of Georgia, in passing upon the title that the Southern Pine Company was obtaining to' those lands. I did not find the original deed; it could not be found in the possession of the Southern Pine Company. Col. Denmark is ■dead now.’ Movant objected to the admission of said evidence, .. . because the said evidence was' illegal, irrelevant and inadmissible, did not illustrate any issue in the case, was a declaration by a third person not connected in any wise with the case on ■trial, was hearsay evidence and tended to lead the jury to believe that it had some reference to the alleged deed, claimed by the defendants to have been made from Dyson to Stovall, trustee, and thus tended to prejudice the cause of plaintiff before the jury.” (5) “Because the following material evidence was illegally admitted to the jury over the objection of this applicant, viz.: a certified copy of order of A. P. Powers, judge Macon district, removing Stovall as trustee of Mrs. S. C. Butts, and substituting A. G. Butts in his place as trustee, said order reciting that Stovall prays to be removed, and that said cestui que trust consents and desires said removal and appointment, by her written request to said petition attached, and that A. G. Butts also files to said petition his written consent to an acceptance of said trusteeship. Dated at chambers, May 27, 1857, duly certified by the clerk of the superior court of Bibb county as appearing on the minutes of said ■court. Movant objected to-the admission of this evidence on the ground that the order was inadmissible, because it was hot accompanied by a certified copy of the proceedings in said court upon which the order purports to be predicated.” (6) “Because the following material evidence was illegally admitted ofer objection of this applicant, viz.: a certified copy of the will of Thomas Dyson, dated June 28, 1865, codicils thereto, dated February 9,-1866, and the appointment and discharge of James E. Dyson as. executor, and of Milton'C. Smith as administrator de bonis non on the estate of the said Thomas Dyson; the order of the court of ordinary of Thomas county removing James E. Dyson as executor, and the order appointing Milton C. Smith as administrator with the will annexed, both dated October 7, 1867, and the-order discharging Milton C. Smith as administrator being dated April 2, 1888, and reciting that said estate of Thomas Dyson has been fully and properly administered; said copy being duly certified by the clerk of the court of ordinary of Thomas county on August 18, 1906; the said will making no reference whatever to the lots of land in controversy.” Movant objected to this evidence upon the ground, that, having shown that the lots in controversy were granted to Thomas Dyson, and having shown letters of administration upon his estate to the plaintiff, and an order authorizing the sale of said lots, the plaintiff was entitled to- recover in this case, unless the defendants should show title- out of Thomas Dyson, or title by prescription; which they could not do by introducing the said evidence. (7) “Because the following material evidence was illegally admitted to the jury over objection of’ applicant, viz.: a document wholly in the handwriting of A. G.. Butts from the beginning to -the end thereof, with all the entries,, signatures, and certificates, purporting to be the copy of a deed from Thomas Dyson, to Stovall, trustee, a copy of which is attached as an exhibit. Movant objected to the- admission of this evidence . . on the ground that it is a writing prepared entirely by A. G. Butts, and is not admissible to prove the existence and proper execution and delivery of a genuine original deed from Thomas Dyson to Stovall, trustee, to the Tots of land in controversy; that the same was a declaration of A. G. Butts, and was not binding upon the plaintiff; was illegal, irrelevant and inadmissible; could not prove any contested issue in the case; and could only tend to prejudice plaintiff’s case before the jury.” (8) Because, the following material evidence was illegally admitted to the jury,, over objection of applicant, viz.: a certified copy of a deed purporting to have been made by Thomas Dyson to- Stovall, trustee, and conveying several lots of land, including the lots in. controversy. Said deed was recorded in Bibb county, September-6, 1850, and the copy here introduced was certified by the clerk of Bibb superior court. A copy of this evidence is attached as an exhibit. Movant objected to the admission of said evidence, upon the ground that the execution of a lost deed embracing land in two counties can not be proved as to land in one of the counties, wherein the deed was never recorded, by a certified copy from the record of the other county, in which it was duly recorded, without first proving the execution of the original deed; that a copy of the same taken from the records of a county in which the land in controversy is not situated can not be received in evidence; that it can not be received for the purpose of throwing light upon the-transaction, for the jury to say whether or not an original deed ever existed from Thomas Dyson to Stovall, trustee; that, therefore, said copy offered in evidence is illegal, irrelevant, and inadmissible for any purpose connected with the trial of this case. (9) Because the court erred in charging the jury as follows: “There has been a certified copy of a deed from the records of Bibb county, purporting to be a copy of an original deed claimed to have been made by Dyson to Stovall. Now that deed would not be admissible as evidence, or as a certified copy of .the original deed. It is not admissible at all for that purpose, because, in order for it to be admissible as a certified copy, it would have to be certified from the records of deeds of this county. It is not admitted for that purpose, but is only admitted for the purpose of illustrating the truth of this case and helping you to determine the question between these people as to whether there was an original deed, and no further than that.” This charge was erroneous because it directed the jury to consider .the certified-copy deed for the purpose of illustrating the truth of the ease, and helping them to determine the question between the parties as to whether there was an original deed, whereas it could not be considered by the jury for such purpose, it having no such evidentiary value. (10) Because the court erred in charging the jury as follows: “Another copy has been introduced in evidence here that claims to have been written out by A. G. Butts, with an.entry on it made by him, claiming to be a transcript by him from the records of Ware County, taken from Book E of the records of this county. This has been introduced for the same purpose as the other, not as a certified copy of the original deed and not for that purpose, but it has been admitted for the purpose, as stated a moment ago, of helping you to determine the question as to 'whether there ever was an original deed made by Dyson to Stovall. And it is for that purpose alone that this evidence and some other circumstances have been introduced in this case; and if you find from the evidence that-has been introduced, and the circumstances, if they are sufficient to ■establish to your satisfaction that Dyson did, as a matter of fact, convey that land to Stovall, as trustee for the benefit of Mrs. Butts, then I charge you that the plaintiff could not recover in this ease, because that would pass title out of him.” This charge was erroneous because it directed the jury to consider the evidence referred to, for the purpose of illustrating the -truth of the case, and helping them to determine the question between the parties as to whether there ever was an original deed made by Thomas Dyson to Stovall, trustee, whereas said evidence could not be considered by the jury for such purpose, it having no such evidentiary value. (11) Because the court erred in charging the jury as follows: “Because after a prescriptive title has ripened into a perfect title, if they continue to exercise acts of ownership over it by selling-property from it, or paying taxes on it, or other acts which go to demonstrate the fact that they are continuing to claim the title by exercising acts of ownership over it, why that would be inconsistent with the idea of abandonment. The facts, and circumstances are to be looked into by the jury to determine whether, as a matter of fact, the land was abandoned. The purpose to claifti it, the claim to own it — was that abandoned and set aside and neglected?” This charge was erroneous “(a-) because the court expressed an opinion in said charge to the jury, in that the jury were told that after a prescription has ripened in a person, if such person continue to exercise the acts claimed by the court in its said charge, that would be inconsistent with the idea of abandonment; (b) because said charge instructed the jury that the purpose to claim the land, the claim to own it, was not abandonment, but that to abandon the land meant the purpose not to claim it, not to claim to own it; whereas the court should have charged the jury that, ‘although one holds another’s land adversely for seven years, under color of title and claim of right, yet if he then abandons the land, he can. not claim the benefit of the statute of limitations;’ (c) because the jury were instructed to find that after a. person holds another’s land adversely for seven years, under color of title and claim of right, there would be no abandonment of the land, provided such person continued to exercise acts of ownership over it by selling property from it or paying taxes upon it.”</p> <p>The court overruled the motion for a new trial, and the plaintiff excepted.</p>

<p>I. In a suit against a shipowner for the value of merchandise lost while being transported on navigable waters, where the defendant pleaded immunity from damage, under the provisions of the third section of the act of Congress of February 13, 1893, commonly known as the “Harter act,” and assumed the burden of proof, and the evidence was conflicting as to whether the defendant exercised “due diligence to make the vessel in all respects seaworthy and properly manned, equipped, and supplied” .at the time of the commencement of the voyage, it was error, requiring the grant of a new trial, for the judge to instruct the jury that “in order for the sinking of a vessel, a few hours after leaving port, to raise a presumption of unseaworthiness at the time she left port, it would be necessary for the evidence to show that the vessel sank because of some fault in her construction or in the stowage of her cargo, or of fault in some respect which would make her unseaworthy at the time she left port, or that at that time she was not properly manned or equipped or supplied.”</p> <p>2. All of the remaining grounds of the motion for new trial were expressly abandoned in the brief of counsel for the plaintiff in error, except certain grounds which relate to the introduction, upon the hearing of the motion for new trial, of newly discovered evidence. As the judgment will be reversed upon the ground referred to in the first headnote, it will not be necessary to deal with the question relating to newly discovered evidence.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. Au.gust 8, 1907.</p>

Buie. Before Judge Kimsey. Hall superior, court. February 7, 1907.

<p>Breach of contract. Before Judge Lewis. Greene superior court.- June 18, 1907.</p>

Bail-trover. Before Judge Littlejohn. Sumter superior court. February 16, 1907. 'On August 22, 1899, Mallary Brothers & Company sold an engine and boiler to George Moon for $625.50, and he. executed to them his notes for this sum, with a stipulation that the title to the property should remain in the vendors until full payment of the purchase-money. He subsequently paid $335 of the purchase-money.

<p>Injunction. Before Judge Mitchell. Berrien superior court. September 25, 1907.</p>

<p>Complaint for land. Before Judge Cann. Chatham superior court. May 29, 1907.</p>

<p>1. On tlie trial of a case against a common carrier by a passenger for damages arising from, personal injuries caused by the negligence of the agents and servants of the common carrier, in the manner of operating the car of the defendant, a charge that “If you find that the car was stopped for the purpose of enabling the plaintiff to alight, and that she was not afforded a reasonable time and opportunity to alight with safety, and while in the exercise of ordinary care for her own safety she was injured aS alleged in her petition, you would be authorized to find for the plaintiff,” was not erroneous on the ground that it instructed the jury that the facts therein recited constituted actionable negligence.</p> <p>2. On the trial of a case of the character mentioned in the preceding headnote, where the judge instructed the jury that the defendant was bound to exercise “extraordinary care and diligence” in carrying the plaintiff, and that the plaintiff was bound to the exercise of “ordinary care and diligence” for her own safety, it was not error requiring the grant of a new trial that the court did not, in connection with such instructions, ■ define to the jury the meaning of the phrases “extraordinary care and diligence” and “ordinary care and diligence,” in the absence of a timely written request for such instructions.</p> <p>3. On the trial of this case the law upon the question of negligence as it affected the plaintiff’s right to recover and the right of the defendant to have a verdict rendered in its favor was ■ substantially and fairly submitted to the jury. It does not appear from the record that the defendant contended before the court and jury at the trial, by plea or otherwise, that the amount of damages recoverable by the plaintiff should be diminished on account of the contributory negligence of the plaintiff. Under these conditions the doctrine of comparative negligence was not directly involved, and this court will not reverse the judgment of the trial court, overruling the motion for new trial, because the presiding judge failed to charge the law applicable to diminution of damages on account of contributory negligence, when there was no request to charge on that subject.</p>

<p>Complaint. Before Judge Cann. Chatham superior court. July 2, 1907.</p> <p>W. E. Norton brought an action'against John Bourke & Son, a partnership composed of John Bourke and James A. Bourke, and against James A. Bourke individually, to recover $150 for medical and surgical services, claimed to have been rendered by the plaintiff for John Bafferty, an employee of the defendants. The petition alleged, that the services were rendered “at the special instance and request of said defendants, as a firm, and of the said James A. Bourke, individually, for which services the said defendants, and the said James A. Bourke individually, then and there undertook and became liable to pay. The said services so rendered were necessary, and the charges therefor are reasonable.” On the trial the plaintiff testified: “I am a physician and surgeon. I am licensed to practice under the laws of Georgia. . . I had occasion to visit the foundry place of John Bourke & Sons.</p> <p>. . Mr. Jim Bourke telephoned me . . to go down and see a man. He asked if that was Dr. Norton. I said, ‘Yes.’ - He said, ‘This is Jim Bourke of John Bourke & Sons; come down, I have another man hurt.’ I said, ‘All right, I will come down right away.’ I say it was Mr. Jim Bourke who telephoned to me, because he had telephoned to me about a week before; I recognized his voice immediately. . . T went down to the wharf and met Mr. Bourke, and he said to me, Captain Bafferty is injured on this boat, and I will show you where he is.’ I went with him and found Captain Bafferty was in his bunk and unconscious; I ordered the ambulance . . and had him sent home; afterwards I had him removed to the hospital and treated him for his injuries. . . Mr. Jim Bourke told me to do the best I could for the injured man, and I told him that I would. It was his boat, I presume, the man was injured on — he took me down there. . . I never was Mr. Bourke’s regular physician. I have done work for the firm. . . I had rendered professional services before at the instance of Mr. Jim Bourke. My services had been engaged by Mr. Bourke before over the telephone. Mr. Jim Bourke did the telephoning then. At that time I went down to Mr. Bourke’s machine shops. . . Mr. Bourke asked me where I was going to send Mr. Bafferty. I said I was going to send him homo for the present and watch his condition.” The witness further testified as to the nature of Bafferty’s injuries, the medical and surgical services rendered, and the reasonableness of the charge made therefor. John Rafferty, a witness for the plaintiff, testified: “I was employed on the tugboat Maude. . . I was master and pilot of the boat. I was working for John Rourke & Son. Mr. James Rourke employed me. . . I sustained an injury. . . I had my skull fractured. I fell and had my skull broke. I don’t know what caused me to fall. When. I fell I was about eight miles from here, on the boat. I was sick, and asked a man to relieve me at the wheel, and before he came I fell. . . After I fell I remember nothing. . . When I came to I was at the hospital. I was unconscious about a week, I guess. I didn’t employ a physician to attend me. When I came to, Dr. Norton was attending me. . . Dr. Norton used to come to my house on some occasions for my stepson' — -he never was there for-me. . . I had never employed Dr. Norton for myself. I went myself to the marine doctor when anything happened to me. I would be treated free by the Marine Hospital service. . . I didn’t pay Dr. Norton anything. He has never presented a bill to me. . . I didn’t employ him or authorize his employment. To have free treatment from the Marine Hospital service, I would have had to go to the Marine Hospital. They would not treat me free if I wore home.” ’ James G. Rafferty testified for the plaintiff: “Captain Rafferty is my father. . . My father was towing mud on the mud scow [at the time he was injured] . . . I got a message to go down to John Rourke & Sons’ place, which I did. I met, when I got down there, Mr. Jim Rourke. He asked me who was the family physician, and I said Dr. Norton; he said, ‘You better telephone for him.’ I said, ‘All right,’ and I started to do it, and he said to me, ‘No, never mind, I will telephone for him myself.’ He went off and I went .aboard the boat. I found my father lying in the lower bunk. He was seriously hurt. Dr. Norton came there. We put my father in an ambulance and I went home with him in the ambulance. . . If I had gone to the telephone when I started, I would have bad to walk a couple of hundred feet, I guess. I am a cripple; I walk with a crutch. . . He (my father) had worked for him [Mr. Rourke] two or three or four months. My father didn’t work for him after he got well.” James A. Rourke testified for the defendants: “I am a member of two firms. The machine and foundry business has three members in the firm; the firm name is Eourke & Sons; the members of the firm are my father, my brother John, and myself. The firm of John Eourke & Son is composed of my father and myself. This-firm owns the tugboat Maude and all floating property — lighters, tugboats, and so forth. This is the firm that owned the tugboat Maude at the time of the injury to Captain Baíferty. I got down there on the morning this accident happened, shortly after seven. Some time after I got down there I saw the engineer of the boat, and then it was I heard of the accident to Captain Baíferty. I sent a boy after his son. I went to see the old man; he was lying in the bunk. . . When I saw him the boat was lying at the wharf. . . When he [James Baíferty] came down, I told him the old man was hurt and asked him what he wanted done; . . he said, ‘Better get the family physician.5 I asked who it was; ‘Dr. Norton,5 he said. . . . Young James Baíferty is incorrect in his statement that I told him to go and telephone for a doctor and finally said no, that I would do it for him. I didn’t offer to do that telephoning. I didn’t do the telephoning at all. I didn’t go to the telephone. . . Harry Singleton, a white man, who was engineer of the boat, was standing there at the time of this conversation; he went to have the doctor telephoned for. . . Dr. Norton is not my family physician. He does not do the work for Eourke & Son. . . Dr. Owens is my father’s physician. I knew that Captain Baíferty was a licensed captain. All steamboat people get their treatment free. All we had to do would be to send him to the Marine Hospital; . . you have to sign a printed slip to get a steamboat man in there, that is all. . . I had previously employed Dr. Norton to render services down there. That employment was over the telephone. I expect I did the telephoning' at that time. . . I don’t think I said [to Dr. Norton] . . ‘Do the very best you can for this man.’ I would not be positive about it.” Thomas J. Beytaugh, a witness for the defendants, testified, that he was bookkeeper for John Eourke & Son at the time Captain Baíferty was injured, and that he telephoned from the office of John Eourke & Son to Dr. Norton to come down there. He did not remember who requested him to telephone, but he had not seen James A. Eourke that morning before telephoning. The testimony of Henry Singleton, a witness for the defendants, was to the effect, that he was the 'engineer of the steam tug Maude when John Baíferty met with the accident, and brought the boat to the wharf with him, and immediately sent for his son, James Rafferty, who, immediately upon his arrival, requested the witness to send for Dr. W. E. Norton, ■who was the family physician; and that the witness went to the «office of John Rourke & Son and requested the bookkeeper to telephone to Dr. Norton to attend Captain Rafferty. James Rafferty ■ denied that he requested Singleton to send for Dr. Norton.</p> <p>A nonsuit was granted as to the partnership, as the bill of exceptions states, “after all testimony had been introduced by both plaintiff and defendants.” A verdict was rendered in favor of defendant James A. Rourke. The plaintiff moved for a new trial, the motion was overruled, and he excepted, complaining of the .nonsuit and the refusal of a new trial.</p>

<p>Action for damages. Before Judge Felton. Bibb superior court. February 1, 1907.</p>

<p>Complaint for. land. Before Judge Felton. Bibb superior ■court. March 11, 1907.</p>

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

<p>Petition for alimonjr. Before Judge Wright. Floyd superior court. October 11, 1907.</p>

<p>Where the evidence demanded a verdict for the defendant, a new trial will not be granted on motion of the plaintiff, whether or not the rulings complained of were entirely accurate.</p>

Garnishment. Before Judge Reagan. Pike superior court. April é, 1907.

<p>Petition for injunction. Before Judge Freeman. Troup superior court. May 22, 1907. '</p>

<p>Equitable petition. Before Judge Martin. Irwin superior eoujt. May 13, 1908.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior 'court. May 13, 1908.</p>

<p>Mandamus. Before Judge Eawlings. Screven superior court. January 31, 1908.</p> <p>The Sjdvania & Girard Eailroad Company, S. C. Hoge, L. H. Hilton, W. P. Williams, J. E. Wells, and J. A. Mills petitioned for a writ of mandamus against J. J. B. Morel, J.' W. Overstreet, P. A. Mock, and certain named agents of the railroad company, to require defendants to deliver to petitioners the books, papers, money, and property of every description in their possession, custody, and control, belonging to such company. The substance of the petition was: At the regular annual meeting of the stockholders of the company, in January, 1908, at which all of the shares of stock were represented by their owners, the individual petitioners were duly elected directors of the company for the ensuing year, they having received the votes of stockholders owning 55 shares out of the 100 shares constituting the capital stock of the company. After the adjournment of the stockholders’ meet-' ing, such directors elected S. C. Hoge president and W. P. Williams secretary and treasurer, for the ensuing year. Hoge, as president of the company, made written demand upon J. J. B. Morel, former president, and J. W. Overstreet and P. A. Mock, former directors of the company, and upon the agents of the eompanjr, named in the petition, for all books, papers, monejq and property in their possession, custody, and control, belonging to the company, which demand was refused. Co]3ies of the- minutes of the stockholders’ meeting and of the directors’ meeting were attached to the petition, and were in accord with the allegations thereof. The petition was positively verified.</p> <p>The answer to the rule to show cause was, in substance: The Sylvania & Girard Railroad Company was incorporated by the Secretary of State, on October 18, 1905. Prior to that time, at a meeting of certain citizens of Sylvania, to promote the incorporation of the company for the purpose of constructing the railroad, a strong sentiment to keep L. H. Hilton permanently out ■of the control of the projected company was developed. In a spirit of compromise, and “in order to show his good faith, and quiet any apprehension as to him,” L. H. Hilton offered the following resolution, which was adopted: “Resolved, that Mr. H. C. Perkins be allowed to subscribe $2,500 to the capital stock of $10,000, and Mr. L. II. Hilton and his friends be permitted to subscribe $2,500 to said capital stock, and the remaining be subscribed by J. J. B. Morel, G. M. Overstreet, P. A. Mock, J. A. Enneis, II. C. White, and J. W. Overstreet, and such of their friends as they may select or designate. Resolved further, that three directors be selected from the last apportionment of $5,000, and two be selected from the first apportionment of $5,000, all of the subscribers to be residents of this community, except Mr. Perkins, who has business interests here.” The minutes of this meeting, set out in the answer, showed that Hilton, Morel, Perkins, Mock, and J. W. Overstreet “were proposed as Board of Directors to be notified after the charter is obtained.” At this meeting, and before the above resolution was passed, Morel “stated that he would not put five cents in any enterprise where there was any probability of the said Hilton ever, in any way, getting control.” Hilton understood this, and offered and supported the resolution with such understanding. In the language of the answer, “After the charter was obtained, these minutes were read and ratified at the meeting of the incorporators, and directors were elected. J. J. B. Morel, P. A. Mock, and J. W. Overstreet were the three directors representing Mr. Morel and his friends. The stock was subsequently apportioned as follows: J. J. B. Morel, 14 shares; P. A. Mock, 12 shares; H. S. White, 7 shares; G. M. Overstreet, 7 shares; J. A. Enneis, 5 shares; J. W. Overstreet, 5 shares; H. C. Perkins, 25 shares; L. H. Hilton, 17 shares; G. M„ Hill, 3 shares; E. H. Hill Jr., 2 shares; W. P. Williams, 2 shares; B. W. Wells, 1 share. The first six mentioned constitute what may be called the Morel interest. It was agreed ámong these six that they would not sell outside of their friends, and J. A. Enneis was a party to this agreement. It was thoroughly understood by the incorporators that the control of Morel and his friends was to be permanent; and but for this, the charter would not have been obtained or accepted.” At this meeting, when the stock was apportioned, Hilton, the two Hills, Williams, and Wells were present, and agreed to the- resolution and understanding “as to the control of said railroad company, and took their stock subject to the resolution and with a full understanding that they would in the future be bound by the terms of said resolution and agreement.” As to the representation and ownership of the 55 shares of stock voted for petitioners for directors, at the stockholders’ meeting held in January, 1908, the defendants allege that “L. II. Hilton was present owning 17 shares; J. H. Hall' was present owning 3 shares, claiming that these 3 shares had been transferred to him by G. M. Hill, but these 3 shares really belonged to the said Hilton and were controlled entirely by him, he having paid for them, and the said 3 shares being really his property; E. II. Hill was present, claiming to own 2 shares, but these 2 shares also belonged to the said Hilton; W. P. Williams was present, claiming to own 2 shares, but these 2 shares really belonged to the said Hilton; J. B. Wells was present, claiming to own one share, although this share belonged to the said Hilton; J. A. Mills-was -present, claiming to own 5 shares, but these defendants believe and charge that these 5 shares really belonged to the said Hilton and were controlled by him; S. C. Iloge was present, claiming to own 25 shares, and these defendants believe and charge that these 25 shares were really owned and controlled by the said Hilton.” At this meeting the defendants insisted that three of the directors should be elected from the Morel faction, so as to give it a controlling interest in the management of the affairs of the company, as was contemplated by the agreement under which the company was organized and chartered. But Hilton and his friends refused to carry out such agreement, and, over the protest of Morel and his friends, elected a board of directors in violation thereof. “Defendants believe and charge that the said Hoge was thoroughly aware of this agreement and understanding when the 25 shares were put in his name. In any event, if the said Hilton had carried out the agreement, then a Board of Directors would have been elected, three of whom would have represented the anti-Hilton interest or faction.” The answer also alleged, “that at a meeting held by the said Morel and his friends, a board of five directors was elected, composed of the said Morel, J. W. Overstreet, P. A. Mock, L. H. Hilton, and S’. C. Hoge. Defendants say that this was the same meeting at which were elected the directors voted for by Hilton, Hoge, et al. The Hilton meeting had been declared adjourned by the Hilton party, but there was no adjournment of the meeting, and these defendants (not recognizing any adjournment) cast 45 shares for the Morel board and against the Hilton board, and did this at the meeting and before leaving the meeting, all the stock being present.” The answer was positively verified. A hearing was had before the judge in vacation, on the petitioh and answer alone, and a mandamus absolute was granted; to which judgment defendants excepted.</p>

Action on bond. Before Judge Martin. Telfair superior court. •June 20, 1907. This is a suit upon the bond of .William McLean, clerk of the superior court of Telfair county. In November, 1898, McLean procured a loan of $400 from William L. Bidwell, and gave his note for that amount, dated November 1, 1898, and maturing five years after date, secured by a deed executed conformably to the Civil Code, §§2771 et seq., to a lot of land in Telfair county.

Action on contract. Before Judge Pendleton. Fulton superior •court. ‘ January 25, 1907.

<p>Equitable petition. Before Judge Pendleton. Pulton superior court. June 10, 1907.</p>

Actions for damages. Before Judge Brand. Franklin superior court. June 5, 1907. These two cases are controlled by the decision of a single question, raised in both records. For convenience of reference, the case of Bond v. City of Royston et al. will be referred to as the first case, and that of the Elberton. Grocery Company, against the same defendants, as the second case.

Complaint. Before Judge Reagan. Spalding superior court. January 25, 1907. W. Chamberlin & Company brought suit against the County of Spalding, making substantially the following allegations in their petition. They are architects, and, as such, were employed on October 11, 1905, by the county, through its board of commissioners of roads and revenues, to prepare plans and. specifications for and to superintend the erection of a court-house for the county.

Action for damages. Before Judge Bawlings. Emanuel superior court. June 12, 1907. The action ivas for the negligent killing of the plaintiffs husband. Her petition alleged, that her husband was, at the time he was killed, in the employment of the railroad company as engineer. About midway between Graymont and Summit, stations on the defendant’s line, the engine which he ivas operating was derailed, and turned over, and, in falling, caused injuries from which he died.

Complaint. Before Judge Lewis. Baldwin superior court. January Id, 1007. The suit was against Samuel Evans & Company (alleged to be a partnership composed of Samuel Evans and Kate M. Johnston), on two promissory notes under seal, payable to the plaintiff,— one dated September 28, 1900, and the other dated Januarjr 8, 1901, — and upon an account.

<p>Ejectment. Before Judge Whipple. Stewart superior court. May 24, 1907. '</p> <p>This was an action of ejectment by W. J. Sizemore and others against Green Willis and another. It appeared, from the evidence, that George W. Sizemore had been married twice, that the plaintiffs- were his children by the first marriage, and that the defendants claim title through mesne conveyances from his widow and from his children by the second marriage. The plaintiffs proved that G. W. Sizemore died in 1884, in possession of the land in controversy, having been in possession for more than twenty years immediately preceding his death, and left surviving him a 'widow, Martha J. Sizemore, and eight children, four of whom (the plaintiffs) were children of a former marriage. The-defendants offered and the court admitted in evidence, over the plaintiffs’ objection, a 'copy of the return of the appraisers, allowing a year’s support to the widow and four minor children of G. W. Sizemore in certain lands therein described, a deed from the widow and two of the children to A.. C. Sizemore, to the premises in dispute, and mesne conveyances from him to one of the defendants. It was also shown, that Martha J. Sizemore and those claiming under her had been in possession of the land until her death, which occurred in 1906; and it was shown, by parol testimony, that the ancestor of the plaintiffs, G. W. Sizemore, had conveyed to his wife, Martha J. Sizemore, a life-estate in the land. The suit was instituted shortly after her death. At the conclusion of the testimony of the defendants, the plaintiffs offered in evidence a deed from G. W. Size-more to Martha J. Sizemore, conveying a life-estate in the premises in dispute; and this deed was repelled by the court, on objection made by the defendants. At the conclusion of the testimony, the court directed a verdict for the defendants. A motion for new trial was made, on the grounds, that the verdict was contrary to law and without evidence to support it, and that the court erred in admitting the documentary evidence objected to, and in repelling the deed offered by the plaintiffs. The motion was overruled, and the plaintiffs excepted.</p>

<p>Interpleader. Before Judge Eawlings. Screven superior court. May 27, 1907.</p>

<p>Action on contract. Before Judge Hammond. Richmond superior court. July 20, 1907.</p>

<p>Action for damages. Before Judge Felton. Bibb superior court. January 31, 1907.</p>

Equitable petition: Before Judge Felton. Bibb superior court. April 29, 1907. J. B. Wilson brought his action against Mary E. Wilson to reform a deed, the petition alleging substantially the following: Petitioner is the owner in fee simple of a one-half undivided interest in a certain tract of land in Macon, Bibb count}', Georgia, and the defendant is his wife, he having married her in 1865.

Trover. Before Judge Kimsey. Douglas superior court. July 6, 1907. Trover was brought to recover certain horses or their value. The verdict was in favor of the plaintiffs. The defendants’ motion for a new trial was overruled, and they excepted.

<p>The venue of a divorce suit, where the plaintiff and the defendant reside in different counties in this State, is the county of the residence of the defendant.</p> <p>(a) Where both parties reside- in different counties in this State the defendant'in a divorce suit can not, by acknowledgment of service and agreement that the case be tried in the county of the residence' of the plaintiff, confer power upon the court to render a valid judgment.</p> <p>(&) Where, for reasons indicated in the preceding divisions of this headnote, the court is without jurisdiction of a divorce suit, and the defendant attempts, by waiver or consent, to confer jurisdiction, the trial judge may upon his own motion dismiss the suit, even after the rendition of the first verdict finding in favor of the grant of a divorce.</p>

Equitable petition. Before Judge Beagan. Fayette superior ■court. January 23, 1907. Mrs. Katie C. Ellis filed her equitable petition against Mrs. L. B. Stewart et al., alleging as follows: The plaintiff and her ■sister owned a certain tract of land which they agreed to exchange with one Gilbert for another tract.

Equitable petition. Before Judge Beagan. Fayette superior court. April 29, 1907. David Gable, by his next friend, J. C. Harper, filed his equitable petition against J. L. Gable, G. W. Biles, and Al Hardy, for the purpose of cancelling a deed made by the father of the plaintiff, J. E. Gable, to J. L. Gable, and one made by J. L. Gable to Biles and Hardy, and to recover the land described in them, and mesne profits.

Action for breach of warranty. Before Judge. Worrill. Clay superior court. March 20, 1907. Green Littleton brought suit against the defendant as heir and as administrator of W. J. Green, alleging, in substance: In 1887 said Green conveyed to plaintiff lot of land number 331 in the 7th district of Clay county. The deed is of record, and reference to it is prayed.

<p>There was no error in refusing to grant an injunction in this case.</p>

<p>Action for damages. Before Judge Mitchell. Tift superior court. May 4, 1907.</p>

<p>1. A motion for a new trial was duly made arid filed, and the court then passed an order providing that the movant have “until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence in said case, and the presiding judge may enter his approval thereon at any time, either in term or vacation, and if the hearing of the motion shall be in Vacation and the brief of evidence has not been filed in the clerk’s office before the day of the hearing, said brief of evidence may be filed in the clerk’s office at any time within ten days after the motion is heard and- determined.” The motion was heard in vacation, under appropriate orders, and at the hearing the movant presented, a brief of the evidence, which was approved as true and correct, and.° ordered filed. Four days afterwards the approved brief was filed in the* clerk’s office of the proper court. Held, that a motion to dismiss the motion for a new trial, on tlie ground that “no brief of the evidence was filed with the motion for new trial,” was properly overruled. Malsby v. Young, 104 Ga. 205 (30 S. E. 854) ; Walker v. Neil, 117 Ga. 733 (45 S. E. 387).</p> <p>2. The refusal to dismiss the motion for a new trial on the other grounds contained in the motion to dismiss was in accordance with the ruling in the cases of Lewis v. Equitable Mortgage Co., 94 Ga. 572 (21 S. E. 224), and Mann v. Tallapoosa St. Ry. Co., 99 Ga. 117 (24 S. E. 871).</p> <p>3. The plaintiff having brought suit, on a building contract and a bond to secure performance on the part of the eontx-actors, to recover damages and the expense incurred in furnishing material and labor necessary to the completion of the building after the termination of the employment of the contractors on account of their failxxx'e to perform their part of the agreement, the petition was open to attack by general demurrer, on the ground that no cause of action was stated, inasmuch as it did not show that the plaintiff’s claims for expenses incxxrred and damages sustained through the default of the contractors had been audited and certified by the architect, or any reason why such a certificate was not obtaiixed, the contract expressly providing that “The expense incurred by the owner as herein provided, either for furnishing materials or for furnishing the work, and any damage incurred through such default, shall be audited and cei’tified by the architect, whose certificate shall be conclusive upon the pax-ties.” The certificate provided for in the paragraph quoted, or a valid reason for not obtaining the same, was a condition precedent to the plaintiff’s right to recover.</p>

<p>1. B. offered a reward of $1,000 for the arrest of one P. and his delivery to the sheriff of Washington county, in the State of Georgia. P. was arrested in the state of California by H., with the assistance of others, whose services had been procured by H. The prisoner was delivered to the agent of the State of Georgia, who in turn brought the prisoner to this State and delivered him to the sheriff of Washington county. Held, that the party making the arrest in California, and causing the prisoner to be held until he could be turned over to the agent of this State, was entitled to the reward.</p> <p>2. The failure of the court to give a charge unauthorized by the pleadings in the case was not error.</p>

<p>1. The owner of certain realty “listed” it for sale with brokers engaged in the business of selling property of that kind, agreeing that he would sell the property so “listed,” for a given sum, “net to him” (the owner), and the brokers procured a purchaser who was “able, willing, and ready to buy” at a price in excess of the amount named; but the owner refused to sell. Held, that the terms of the agreement on the part of the owner did -not import an offer on his part to pay the brokers the excess in the amount which the purchaser was willing to pay for the property, above the sum named, for which the owner was willing to sell it.</p> <p>2. A petition alleging the foregoing facts and praying for judgment for a sum equal to the excess in the amount at which the alleged purchaser was willing to buy, above the “net” amount at which the owner was willing to sell, was demurrable.</p>

<p>Action for damages. Before Judge Hammond. Bichmond superior court. June 14, 1907.</p>

<p>1. Section 2436 of the Civil Code, — “After a separation, no transfer by the husband of any of the property, except bona fide 'in payment of preexisting debts, shall pass the title so as to avoid the vesting thereof, according to the final verdict of the jury in the cause,” — construed in connection with its cognate sections, does not restrict a transfer by a husband of his property, made bona fide and for value, prior to the institu-. tion of a divorce suit, but is operative only on conveyances by the husband made during the pendency of a libel for divorce.</p> <p>2. A contract for the sale of land, signed by both parties, stating the place-where it is dated, and describing the land as “the western portion of lot forty-one (41) Elannery Ward, together with all improvements thereon,”' and stipulating that the “seller is to occupy residence No. 221 36th Street West,” for a given time after the sale, sufficiently identifies the-property sold, to satisfy the statute of frauds and to allow extrinsic proof to apply the contract to its subject-matter.</p> <p>3. The evidence did not demand a verdict for the prevailing party, and the judge did not abuse his discretion in granting a new trial.</p>

Motion to set aside judgment. Before Judge Wright. Walker superior court. September 1, 1906.

<p>Where an insurance policy stipulates that proofs of loss must be furnished by the insured to the insurer within sixty days after the fire, but contains no express provision that the policy shall be void or forfeited upon failure to furnish proofs as required (the policy expressly declaring that the happening of certain other contingencies shall void it), and there are further provisions in the policy that the loss thereunder shall not be payable until sixty days after such proofs are furnished, and that no suit on the policy shall be sustainable until after full compliance by the insured with all its requirements, nor unless commenced within twelve months after the fire, Held:</p> <p>1. The failure of the insured to furnish proofs of loss within sixty days from the fire will not work a forfeiture of the policy.</p> <p>2. The failure of the insured to furnish proofs of loss at least sixty days before the expiration of twelve months from the fire, unless there be a waiver of such proofs, will prevent the maintenance of a suit on such policy.</p> <p>3. Proofs of loss, in the absence of a waiver thereof, must be furnished within a reasonable time from the fire, or a suit .on the policy can not be maintained.</p> <p>4. An absolute refusal by the insurer to pay, made before the expiration of the reasonable time within which the insured must furnish such proofs, will be a waiver thereof; but such refusal made after such reasonable time has expired will not be a waiver of such proofs..</p> <p>5. The Civil Code, §2140, providing for the recovery of damages and attorney’s fees against insurance companies, is not violative of section 1 of the fourteenth amendment to the constitution of the United States, nor of any of the provisions of paragraphs 2, 3, and 4 of article 1 of the constitution of the State of Georgia.</p>

<p>Complaint. Before Judge Wright. Floyd superior court. July 8, 1907.</p>

<p>1. Persons who hold a State office, except justices of the peace and officers; of the militia, are ineligible to membership in the General Assembly of this State.</p> <p>2. But if one, by reason of holding one of the offices not within the above exception, mentioned in paragraph 7 of section 4, article 3 of the constitution of this State, at the time of his election as a member of the General Assembly, is rendered ineligible to membership in that body, the fact of his ineligibility would not work an ouster from the first office, but would only affect his right to take a seat as a member of the General Assembly.</p> <p>3. The judgment ousting the respondent from the office held at the time of his election to the General Assembly must be reversed.</p>

<p>Claim. Before Judge Beagan. Upson superior court. May 9, 1907.</p>

Claim. Before Judge Lewis. Jones superior court. April 16, 1907. Held: that this was not a bond for title to any specified land, but was an agreement to make a conveyance to secure J. F. Dumas against loss; and that the paper was inadmissible. Certain other evidence was offered, some of which was admitted and some rej'ected.

Action for damages. Before Judge Cann. Chatham superior court. April 1, 1907. MeCants sued the Savannah Electric Company for damages on account of personal injuries received at the hands of the company’s employees. The petition alleged, that the plaintiff boarded one of the cars of the defendant, for the purpose of being transported to the nearest point on the railway line to his home. He paid his fare, requesting the conductor to put him off at Duffy street.

<p>Petition for injunction. Before Judge Cann. Chatham superior court. May 14, 1907.</p>

Equitable petition. Before Judge Hammond. Richmond superior court. April 17, 1907. The Southern States Phosphate and Fertilizer Company brought a petition against Barrett & Doughty, as common agents of the creditors of the firm of Alexander & Alexander, making the following allegations: The firm of Alexander & Alexander became indebted to.the plaintiff on May 24, 1906, in the sum of $11,681.92, as shown by three notes, copies of which were attached to the petition.

Equitable petition. Before Judge Fite. Gordon superior court. August 7, 1907. Mrs. S. C. Powell and Mrs. Malinda Patterson brought their equitable petition against Mrs. Malissa Hood and others. The plaintiffs were two of the daughters of Lemuel Hood, deceased, and the defendants were his widow, his other children, and his administrator.

<p>Trover. Before Judge Gober. Gilmer superior court. August 5, 1907.</p>

Before Judge Bartlett. Polk superior court. December 21, 1906. On the trial of a claim case, in which the New England Mortgage Security Company was plaintiff in fi. fa. and Sanders, as administrator, was defendant in fi. fa. and Brewer was claimant, a verdict was rendered at the February term, 1906, of the superior court of Polk county, finding the property subject.

<p>Petition. Before Judge Edwards. Haralson superior court. March 27, 1907.</p>

Complaint for land. Before Judge Kimsey. Douglas superior court. July 8, 1907. E. C. Watson as executrix of J. P. Watson, E. C. Watson individually, and Mrs. Lela Smith brought their complaint for land in the statutory form against Nancy Shaddix to recover an undivided half of a described lot of land. The title relied upon by the plaintiffs was a deed from J. T. C. Ataway to Joseph Cruse, executed in 1863.

<p>The writing relied on by the defendant to support its plea of accord and satisfaction was not merely a receipt for the sum therein named, but evidenced an unambiguous contract for a full release from any and all liability of the insurer to the insured by reason of the disability mentioned in such writing, and parol evidence was not admissible to contradict or vary its terms.</p>

<p>Equitable petition. Before Judge Whipple. Crisp superior' court. May Í1, 1907:</p>

<p>Indictment for rape. Before Judge Parker. Appling superior court. March 31, 1908.</p>

<p>When several distinct and independent propositions for the issuing of bonds by a municipality are submitted to the qualified voters of a town or city, provision should be made in the submission for a separate vote upon each. They can not be lawfully combined and submitted to the voters as a single question.</p>

<p>Complaint. Before Judge Edwards. Paulding superior court. February 13, 1907.</p>

<p>This was a suit by a passenger against a railroad company for damages resulting from injuries received by the passenger, from being thrown from the platform of the ear. The uncontradicted evidence shows that when the train was about a mile from a regular station where cars were accustomed to stop, and which was the place of destination of the plaintiff, the porter came into the ear where the plaintiff was seated, and, announcing the name of the station, called, “All off!” This was at night, and the train was running at a high rate.of speed, estimated at from 30 to 45 miles per hour. After the announcement of the station, the plaintiff immediately arose from his seat and walked out on the platform of the ear, in order to be ready to alight as soon as the train stopped. After he got out upon the platform he was thrown therefrom by the motion of the car and injured. There had been no perceptible slackening of the speed of the train. The plaintiff was 27 years of age and had never ridden on a railroad train before. Held, that, under the rulings in Blitch v. Central Railroad, 76 Ga. 333, and Hicks v. Ga. So. & Fla. Ry. Co., 108 Ga. 304 (32 S. E. 880), the plaintiff was not entitled to recover.</p>

<p>1. That the pleadings are copied in the bill of exceptions, accompanied by a statement that it includes all of the record, and no record is specified to be sent up independently, will not cause a dismissal of the writ of error.</p> <p>2. Where an administrator filed an equitable petition for direction and for construction of a will, showing that there were no debts, and that the' estate was ready for distribution, but that there were conflicting claims as to who were entitled to the distributive shares under the will of the decedent; and where the contest was between such persons; and where some of those against whom the verdict and decree were had excepted, and made all those in whose favor such verdict and decree were rendered defendants in error, and served them, but did not serve the other losing parties, upon motion such parties can be made plaintiffs in error by amendment; and a motion to dismiss the writ of error, made by the defendants in error because of the absence of such parties, will thereupon be overruled.</p> <p>3. Where the bill of exceptions stated that “the representatives of J. E. Hall & Co.” excepted, this in itself was not a sufficient designation of such persons; but where other portions of the bill of exceptions show to • whom that designation was applied, a motion to amend by naming the plaintiffs in error more specifically, as they appeared in the pleadings therein set forth, will be allowed.</p> <p>4. Where a bill of exceptions set forth the pleadings of the parties, and then stated, that no issue was submitted, except one of law involved in the construction of a will, that the presiding judge directed a certain verdict and then made it the decree of the court, and that certain named parties “except to the judgment and decree above set out, and now assign said judgment and decree as erroneous,” on several grounds specifically stated, this was a sufficient assignment of error to withstand a motion to dismiss the writ of error.</p> <p>•5. A will devised to tlie wife of the testator certain land for and during lier natural life, and then provided, "after her death to be sold, and the proceeds to be equally divided between my surviving children and the children of any of my deceased children.” Held, that the words of survivorship applied to the death of the testator, and that the persons designated took a vested remainder interest at his death. A child of the testator who survived him could make a valid conveyance of his or her remainder interest; and although such child died before the death of the life-tenant, leaving children surviving when the life-tenant died, they would not take, as devisees under the will, a title superior to that conveyed by such child of the testator.</p>

<p>Action for breach of contract. Before Judge Lewis. Baldwin superior court. April 24, 1907.</p>

<p>Trover. Before Judge Little. Taylor superior court. February 9, 1907.</p>

<p>Indictment for murder. Before Judge Parker. Coffee superior court. Mareb 21, 1908.</p>

<p>Ejectment. Before Judge Beagan. Butts superior court. February 21, 1907.</p> <p>Associate Justice Beck being disqualified, Judge Ellis, of the Atlanta circuit, was appointed to preside in his stead.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. April 11, 1907.</p> <p>The plaintiff brought an action, in Fulton superior court, 'against E. E. Watson, George P. Howard, and others; the petition as amended alleging, in substance, as follows: On June 20, 1901, the plaintiff, .a corporation, through its president, D. .0. Lyle, sold to E. E. Watson, acting as agent and trustee for himself and the other defendants, certain described lands in Alabama, for a consideration of $20,000, and on the same date Lyle, president, in the name and behalf of the plaintiff, conveyed the property by warranty deed, in the usual form, to R. E. Watson, trustee. Watson took the deed in his own name as trustee, by previous agreement between the defendants, receiving title as trustee for the use and benefit of all of the defendants; and such title by operation of law inured to their benefit and they became liable in law to pay the purchase-price. Watson, acting as agent and trustee, paid $5,000, which was money of the defendants put in his hands, on the purchase-price, and gave two promissory notes for $7,500 each, bearing interest at 7% per annum, and containing a covenant to pay 10% attorney’s fees if not paid at maturity. The notes were signed by “R. E. Watson, Trustee,” and payable to “D. O. Lyle, President.” Ryle was the president of the plaintiff company, and the notes were payable to him in its behalf. At the time of making and signing the notes, the plaintiff did not know that Watson was acting as .agent for the defendants, but the defendants were the undisclosed principals of Watson. The' propertjr was purchased by the defendants through Watson as their agent, and they took and enjoyed it as their own. Neither the notes, nor the purchase-price of the property have been paid, and there is now due upon the contract by the defendants a named balance of principal and interest. The notes were signed in the name of Watson, trustee, by said Watson, by the agreement and authority of all of the defendants; and it was understood and agreed between them that the notes represented an indebtedness of all of them, and that they would all join in paying them. Copies of the notes (which were negotiable) were attached as an exhibit to the petition, were dated at Birmingham, Alabama, and made payable at a bank in that city.</p> <p>On the hearing below, the plaintiff tendered an amendment alleging, that before and at the time of the sale mentioned in the petition the property described therein belonged to the plaintiff; that the purchase-price thereof was its right and property; that the $5,000 was paid to the plaintiff, and the balance of the purchase-price was due and owing to it; that the notes were taken by its president for its account, were in its custody, and it was ready and able to surrender them to the defendants. This amendment the court refused to allow. The defendant George P. Howard interposed a demurrer to the petition, which the court below sustained on the general ground that no cause of action was stated against George P. Howard, and dismissed the petition as to him; to which action of the court; and to its order disallowing the amendment offered, the plaintiff filed its exceptions.</p>

<p>Injunction. Before Judge Hammond. Kichmond superior court. June 19, 1907.</p> <p>The Augusta & Aiken Kailway Company, a South Carolina corporation, is an interurban railroad company, and operates an electric railroad from Aiken, South Carolina, to Augusta, Georgia. In April, 1903, it entered into a contract with the Augusta Kailwav Company, a street railway, for the use of the 1-atter’s tracks in the City of Augusta, subject to the approval of the City Council of Augusta. On October 6, 1903, the City Council of Augusta passed an ordinance granting permission to the Augusta & Aiken Kailway Company to use the streets of Augusta by running its cars upon the tracks of the Augusta Kailway Company on certain streets, under the terms, conditions, and limitations set out in the contract between the Augusta & Aiken Kailway Company and the Augusta Kailway Company, and providing that the grant to use the streets should expire with the charter of the Augusta Kailway Company. Pursuant to this contract and ordinance, and on the faith thereof, the Augusta & Aiken Kailway Company engaged in the business of transporting freight and passengers to and from Augusta over the tracks of the Augusta Kailway Company, and had expended large sums, and assumed large obligations in carrying out its contract with the local company in compliance with the ordinance. On December 29, 1905, the City Council of Augusta enacted a “business license ordinance,” the caption and material parts of which are as follows: “An ordinance to fix the annual and specific taxes and licenses of the City of Augusta on business occupations and professions for the year 1906, and to provide for the collection of the same.” Section 1 of the ordinance ordains: “That the following annual and specific taxes and licenses on business occupations and professions, to he paid by the person or persons carrying on or engaged in said .business occupations or professions, . . shall be levied and collected, . . and execution, [with a penalty] upon the amount'of said taxes and licenses, shall be issued and enforced for all such annual and specific taxes and licenses,” etc. ' “Section 2. On the business of the following, viz., . . upon every railroad company not exempted by contract or otherwise, for running cars on the streets of Augusta, $1,666.66.” And on December 14, 1906, a similar ordinance was passed in the same language, for the levying and collection of a similar specific tax and license on business occupations and professions for the year 1907. Upon the authority «of these ordinances the City Council of Augusta caused to be issued executions against the Augusta & Aiken Bailway Company for the amount of the tax for each of the years 1906 and 1907. The Augusta & Aiken Bailway Company filed their petition to enjoin the levy and collection of the tax, on the grounds that it did not do any intrastate business; that it was solely engaged in the transportation’ of freight and passengers to and from the City of Augusta and points in the State of South Carolina, and did not enter into the business of transporting freight or passengers from any points within the limits of the City of Augusta or the State of Georgia to any other such point; and that it was not operating a street railroad, but an interurban railroad company. The court enjoined the levy and collection of the fi. fas., and the city excepted.</p>

Habeas corpus. Before Judge Fite. Bartow superior court. January 18, 1908.

<p>1. A supplemental petition is not amendable by striking therefrom all mat- . tér indicating its supplementary character, and substituting in lieu thereof other matter, the effect of which would be' to dissever the original from the supplemental petition and convert the latter into a new and independent suit, solely against one who was not a party to the case when the supplemental petition was filed.</p> <p>2. The supplemental petition, considered in connection with and as a part of the original petition, was demurrable on the ground of estoppel.</p>

<p>Indictment for murder. Before Judge Worley. Wilkes superior court. May 6, 1908.</p>

<p>Ejectment. Before Judge Wbipple. Ben Hill superior court. April 2, 1907.</p>

<p>Petition to establish copy. Before Judge Parker. Pierce superior court. November 19, 1907.</p>