Volume 131 — Georgia Reports

<p>1. Where A bought from B a stock of goods in bulk, in part payment of a debt then due by B to A, -without complying with the provisions of the act approved August 17, 1903 (Acts 1903, p. 92), “to regulate the sale of stocks of goods, wares, and merchandise in bulk,” etc., A was liable in garnishment to a creditor of B for the value of the goods, when the same was not more than the amount of the indebtedness sought to be collected from B, although A had disposed of the goods before service of the summons of garnishment.</p> <p>2. The act above referred to is not violative of the provision of the constitution of Georgia which declares: “No person shall be deprived of life, liberty, or property except by due process of law;” nor of the provision of the Pederal constitution which declares: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”</p>

<p>Action for damages. Before Judge Reagan. Henry superior court. July 19, 1907.</p>

<p>1. The evidence of the alleged inculpatory statement pf the accused was properly admitted.</p> <p>2. After instructing the jury as to the presumption of malice arising from proof of a homicide, it was not error to charge, in this immediate connection, that evidence of justification or mitigation “may come from the evidence offered by the State to prove the killing, . . or it may come . . from the evidence offered by the defendant, or it may come from the defendant’s statement, if you should credit it;” such charge being followed by full and correct instructions as to the prisoner’s statement and as to reasonable doubt.</p> <p>3. A charge that “there can not be murder without malice, either express or implied, that is, with a deliberate, intent to killthere can be no manslaughter when there is any malice, either express or implied,” • was .not fairly subject to the criticism that it led the jury to believe that where there is a deliberate intention to kill, or malice on the part of the accused, he must be found guilty of murder, without regard to whatever else may appear in connection with the homicide. Especially was this criticism without merit when such charge was given in immediate connection with correct instructions defining murder, malice as an essential element thereof, and voluntary manslaughter, and explaining the distinctions between- such offenses.</p> <p>4. In instructing the jury on the law of voluntary manslaughter, it was error to charge that a “serious personal injury,” referred to in Penal Code, §6.5, means “an injury that may deprive of life, and which must be prevented by a resistance of the like sort.”</p> <p>5. It was also error to charge, under the facts of this case: “If one man approaches another with a knife or pistol, or a weapon like that, and the man being approached honestly believed that his life was in danger, and he did not provoke the difficulty, and the man is coming on him to take his life, or he honestly believed his life was in danger, or a serious personal injury is about to take place to him amounting to a felony, and he kill another under those circumstances, to protect himself from that kind of an assault, that would be justifiable homicide.”</p> <p>6. Mere words, however vile, will not justify the taking of human life.</p> <p>7. It was not error to give in charge the. provisions of Penal Code, §71, on the subject of reasonable fear.</p>

<p>Indictment for murder. Before Judge Littlejohn. Wilcox superior court. April 11, 1908.</p>

<p>A local school district election to authoi'ize the levy and collection of the tax provided for in the act of 1905 (Acts 1905, p. 425), (which tax was declared unconstitutional in Brown v. Southern Ry. Co., 125 Ga. 772, 54 S. E. 729), held prior to the amending act of 1906, (Acts 1906, p. 61), will not warrant the assessment and collection of the tax provided for in the amendatory act.</p>

<p>1. An executory agreement for the sale of goods to be delivered at a future day is valid; such a transaction will not be declared invalid unless it is made to appear that neither of the parties contemplated an actual delivery, and it was the intention of both that there should be no actual delivery, but on the day fixed for delivery there should be a settlement of differences based on the market value of the goods on that day. '</p> <p>2. A telegraph company owes a duty to serve the general public impartially and with due care.</p> <p>3. A sendee of a telegram, who acts on the faith of a message negligently altered by the servants of the telegraph company in its transmission, and thereby sustains damage, may maintain an action in tort against the telegraph company for a breach of its public duty. The contrary dictum in Broohe v. Western Tin. Tel. Oo., 119 Ga. 694 (46 S. E. 826), is disapproved.</p> <p>4. Where a sender files with a telegraph company a message directing the addressee to buy for him certain goods at a specified price, and the message is negligently changed in the transmission so as to enlarge the price, and the addressee, on the faith of the message as delivered to him, buys the goods at the increased price named therein, and the sender refuses to ratify the act of the addressee, the latter may sue the telegraph company in tort for such damages as proximately result from the purchase of the goods on the faith of the erroneous telegram.</p>

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

<p>1. Where a policy of life insurance provided on its face that "This policy does not take effect until the first premium shall have been actually paid during the lifetime of the insured; nor are agents authorized to make, alter, or discharge this or any other contract in relation hereto, or to waive any forfeiture hereof,” such a policy did not take effect before the payment of the first premium, although the agent who issued it stated to the father of the insured, who called to see him while the son was sick, that he (the father) might pay the premium at a later date.</p> <p>2. Where under such facts the son died before the payment of the first premium, in a suit on the policy of insurance a nonsuit was properly granted.</p>

<p>Probate of will. Before Judge Lewis. Greene superior court. June 3, 1907.</p>

<p>Action for damages. Before Judge Little. Muscogee superior court. January 21, 1907.</p>

Indictment for murder. Before Judge Lewis. Morgan superior court. April 23, 1908. The accused was convicted of murder, for tbe killing of a woman, Sweetie Harris. His motion for a new trial being overruled, he excepted. According to the testimony submitted in behalf of the State, the accused, who was a mere acquaintance of the deceased, was standing very near her while she was ■ dancing with another. Cursing her, he said: “I told you not to dance.

<p>Where an equitable petition was brought for the purpose of enjoining the collection of a municipal tax, attacking the constitutionality of certain charter provisions and the legality of the tax and the proceedings to collect it, and the mayor, city marshal, and members of council were made parties, but not the municipal corporation itself, and where, upon the refusal of an injunction, a bill of exceptions was filed, but no service was made on the parties to the cause below, the only service being by acknowledgment on behalf of the municipal corporation in its corporate name, on motion the writ of error must be dismissed.</p>

<p>Petition for injunction. Before Judge Lewis. Putnam superior court. March. 18, 1908.</p>

Equitable petition. Before Judge Little. Muscogee superior court. May 14, 1907.

Equitable petition. Before Judge Littlejohn. Sumter superior court. February 15, 1907.

Equitable petition. Before Judge .Whipple. Stewart superior court. May 24, 1907.

<p>Action on bond. Before Judge Edwards. Haralson superior court. March 28, 1907.</p>

<p>Equitable petition. Before Judge Freeman. Carroll superior court. January 5, 1907.</p>

Processioning. Before Judge Mitchell. Colquitt superior court. April 7, 1907. The plaintiffs, who claimed to own lot number 51, made application to processioners to survey and mark anew the lines around the same.

<p>1. The first count in the petition was to recover, under the Civil Code, §2298, the value of goods receipted for by the last connecting carrier as “in good order;”- and the undisputed evidence disclosing that the goods sued for were never received by the connecting carrier, there could be no recovery on this count.</p> <p>2. The statute imposing a penalty on a carrier for refusing to trace freight (Civil Code, §§2317, 2318) is applicable only where freight has been shipped to be conveyed by two or more carriers to its destination, where, under the contract of shipment, or by law, the responsibility of each carrier is to cease upon delivery to the next connecting carrier “in good order.”</p> <p>3. Where a carrier accepts goods for transportation beyond its line, and issues its bill of lading acknowledging the receipt of the goods consigned and destined to a point beyond its own route “which said carrier agrees to carry to said destination, if on its own road, or otherwise to deliver to another carrier on the route to said destination” for an integral special price for the whole service of transportation, and stipulates that in consideration-of the rate charged under the conditions of the hill of lading it is mutually agreed, as to each carrier of the goods over all or any portion of the route to destination, that every service to be performed shall be subject to all the conditions of the bill of lading; and where it appears that the connecting carrier received the goods under the terms of the bill of lading^ the contract of carriage will be-considered a through contract.</p> <p>4. A stipulation in such a bill of lading, that no carrier shall be liable for loss or damage not occurring on its own portion of the route, is not binding on the shipper unless he assents to it.</p> <p>5. Under the agreed statement of facts the connecting carrier was not subject to be called on to trace the freight, as provided in the Civil Code, §§2317, 2318.</p>

<p>1. Declarations of a person since deceased, against his interest, and not made with a view to pending litigation, are admissible in evidence in any case.</p> <p>2, 3, 4. The admission of immaterial evidence, without harmful effect, is not cause for a new trial. ■</p> <p>5. One has no insurable interest in the life of his brother-in-law merely because of the existence of such relationship.</p> <p>6. “When a portion of a charge, which is complained of generally, contains several distinct propositions and one or more of the same is correct in the abstract, then the general assignment of error is not good and will not be further considered, because it in effect improperly alleges that all of such portion is erroneous, and does not show to which of the propositions, the correct or the erroneous, it is intended to take exception.”</p> <p>7. As it manifestly appears that the movant and his counsel, by the exercise of ordinary diligence, could have obtained knowledge, before trial, of the alleged newly discovered evidence, it was not cause for a new trial.</p>

Eviction. Before Judge Lewis. Laurens superior court. July 36, 1907. Hicks made affidavit for the purpose of obtaining the issuance of a warrant to dispossess Beacham as his tenant. The .affidavit alleged, among other things, as follows: On October 38, 1901, Beacham leased from a grantor of the land, under whom Hicks, derived title, a certain described tract of land.

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. November 14, 1907.</p>

<p>Certiorari. Before Judge Little. Muscogee superior court. December 28, 1906.</p>

Petition for injunction. Before Judge Wright. Floyd superior court. October 4, 1907. The Virginia-Carolina Chemical Company filed an equitable petition against the Rome Railway & Light Company, seeking to recover a certain right of way, and to enjoin the defendant from operating its street-cars over the plaintiff’s land. The action was brought on an alleged breach of a contract made between plaintiff and the City Electric Railway Company (transferor of the defendant company).

<p>Equitable petition. Before Judge Reagan. Eayette superior court. April 29, 1907.</p>

Equitable petition. Before Judge Felton. Taylor superior court. May 29, 1907.

Complaint for land. Before Judge Felton. Bibb superior court. February 14, 1907. Mary F. Peavy, Andrew Beynolds, Lee Beynolds, Georgia Slade, and Mattie Thomas brought an action at law against Leon S. Dure, to recover a certain tract of land in Bibb county. In the petition it was alleged that the tract sued for was “a part of a certain one-acre lot sold by E. M. Calhoun to Vm.

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. February 9, 1907.</p>

Mandamus. Before Judge Brand. Gwinnett superior court. December 12, 1907. J. Y. Pool applied for a writ of mandamus against Allen as mayor of the City of Buford, Bennett and others as members of the city council, and Brogdon as treasurer. The applicant was the solicitor of the city court of Buford.

Garnishment. Before Judge Martin. Muscogee superior court. February 14, 1907. A. B. Baxter & Company, Incorporated, the plaintiff in error, was, in the year 1904 from January until some time in February, engaged in Columbus, Georgia, as broker or dealer in futures. In February of the year 1904 Baxter & Company failed. The tax-collector issued a fi. fa. for the special State tax of $1,000, for that year.

<p>Equitable petition. Before Judge Worrill. Clay superior court. March 18, 1907.</p> <p>The petitioner alleged, in substance: Her husband had died, and all his property had been set apart regularly by the ordinary to her as a year’s support. About two.years after her husband’s death, the defendant, who was the physician attending in his last illness, induced her to sign a certain note in his favor, representing the value of his medical services to her husband. At the time of signing this note'she was incapacitated to contract, on account of excessive and continued use of morphine, which fact must have been known to the defendant. Several years later the defendant, with the aid of his attorney, likewise induced her to execute to him a so-called mortgage to the whole of her estate, fraudulently and falsely representing to her that unless she did so she would be evicted. The note, which was attached to the petition, was payable at her death, and the mortgage was to secure the payment of the note. In addition to charging that the note and mortgage were void on account of fraud, the petitioner also averred that the instruments were testamentary in character and void as a will, because not properly executed. The prayer was to' cancel the note and mortgage as clouds upon her title. The defendant filed an answer which amounted to a general denial. An amendment to the petition was then offered by the plaintiff, to the effect that the “purported note and mortgage was given for the payment of the debt of her husband,” and that “the transfer of her estate was without the approval of the ordinary, and so void.” These amend.mehts were demurred to specially by the defendant, on the grounds that the same were not clear and distinct, but confused, and that they “set out no sufficient cause of action.” The demurrers were sustained; to which ruling the plaintiff excepted. Exception was also taken by the plaintiff to the refusal of the court, upon motion, to construe the so-called note and mortgage as “testamentary in character, and therefore void as a note and mortgage.” On the trial the plaintiff testified that she executed the notes in payment of a debt of her husband and at the instance of the defendant; that at the time she executed the first note she “was in no condition to attend to any business whatever,” her “health being wrecked from excessive use of morphine;” and that she executed the second note and the mortgage under the fear of losing her property, caused by the threats and fraudulent representations of the defendant and his counsel, who were present at the time of the execution of the instruments. Upon this evidence, the court, on motion of the defendant, granted a nonsuit; and the plaintiff excepted.</p>

<p>Petition for injunction. Before Judge Ellis. Eulton superior court. September 21, 1907.</p>

Action for damages. Before Judge Kimsey. Habersham superior court. February 7, 1907. Hogan brought two suits against the Southern Railway Company, for damages, one being for personal injuries to himself, and the other.for injuries to his wagon, harness, and team, all caused by the same acts of alleged negligence of the defendant. The cases were consolidated and tried as one.

<p>1. The evidence, was insufficient to establish a prescriptive title in the plaintiff or his predecessors in title, or to prove the alleged forgery of one of the defendants’ muniments of title.</p> <p>2. Where it becomes a material part of a case to determine whether the possessioii of land by a person is in his own right or that of another, evidence is admissible to show that at the time such person held a bond for title to the land.</p> <p>3. The execution docket was irrelevant to any issue made in the case.</p>

<p>Action for damages. Before Judge Martin. Muscogee superior court. March 23, 1907.</p> <p>The plaintiff was emploj'ed by the defendant as a fireman to serve in the operation of its locomotive- engines. On the 19th of May, engine number 14-18, upon which the plaintiff was employed, left Columbus, Ga., on a trip to Montgomery and return. About 2 o’clock a. m. on the 22nd of May, when the plaintiff’s service connected with the round trip was about to be concluded, but just before the engine was delivered to the yard crew in Columbus, while running at about four miles per hour, the plaintiff fell from the engine and sustained serious injuries. Attached to the engine was a tender and between the two was a space.of about 8 inches. The duties of the plaintiff required him to be constantly over this space, and as an instrument of safety for the protection of the plaintiff and the engineer a metal apron had been provided which covered the space between the engine and the tender. The apron was fastened to the tender by means of certain bolts arranged hinge fashion, so that the apron could be moved up and down. One tongue of the bolt was bolted to the floor castings of the engine, while .the other end was inserted through the apron and made fast to the apron by means of certain taps which were screwed on to the end of the bolt which went through the apron. It was so arranged that the taps would be under the bottom of the apron, and would not be visible from the plaintiff’s place of work while the apron was in position. It was contended that the threads to the bolt which passed .through the apron were badly worn, and that on account of such condition the tap came off and the hinge became loosened and the apron worked out of position so as to leave the space between the engine and tender partly exposed, and that while the plaintiff was engaged in work his foot slipped in the hole, and in his effort to recover he fell and suffered the injury. It was contended that the defendant had not exercised ordinary care in its inspection of the engine and the apron in question, and that it was negligent in furnishing an appliance defective in the manner indicated, and in failing to discover the defect. On a former trial of the case the plaintiff recovered a verdict for $3,000, and the judgment refusing to grant a new trial was reversed by this court. ISO Ga. 593. In that case it was held, that the plaintiff had shown himself to be free from fault, and that upon proof of the injury the burden of proof was upon the defendant to show that its agents and servants had exercised all ordinary and reasonable care and diligence with respect to the matters which were charged to be grounds of negligence in the declaration; and that, the defendant having shown by uncontradicted evidence that the agents and servants of the defendant were in the exercise of all ordinary care and diligence in respect to the matters of negligence alleged, the burden of proof imposed by law upon tjie defendant was supported, and the plaintiff could not recover. On the next trial in the court below the plaintiff and defendant introduced substantially the same evidence as had been introduced on the former trial, but at the conclusion of the defendant’s evidence the plaintiff, in rebuttal, introduced a witness who had not before been sworn as a witness in the case. Among other things, this witness testified, in effect, that he was a helper to a night foreman in the shops of the defendant at Columbus at the time the plaintiff received his injury; that his hours of work were from 7 o’clock in the evening to ¶ o’clock in the morning; that soon after the plaintiff had been hurt, to wit, between 4 and 5 o’clock in the morning, he had worked on the apron and fixed the bolt. With reference to these matters, the witness, among other things, said: “I worked on engine 1418 at that time. I worked on her apron and fixed a bolt on the left-hand side. Me and Mr. Cooper first taken the bolt and put a washer and two nuts, which is called a jam nut, on it. After we done that we found there was not enough on the bolt to hold the nuts, and I spoke to him about it, and he looked at it. He had me to take that bolt out. . . The apron on that engine was attached in this way. It was fastened with a hinge and two bolts, you know, at each end, that went through the casting of the engine something like this [referring to model]; put it on here, and the washer goes on here at the end [indicating on the model]. The left side of the apron was loose. It was plumb loose when I found it. The bolt was plumb loose, out of the casting, and no nuts on it at all. . . The reason I didn’t leave the two nuts I first put on the bolt, the bolt was not sufficient to hold the nuts on it. The bolt had worked up and down so the threads were stripped, worked up and down and backwards and forwards, stripped. Then, after looking at that bolt, this here bolt was worn so bad [referring to bolt that attached the bolt that went through the casting to the hinge], it was not sufficient to hold the nut; and we took a chisel and cut that out and put a 5/8 bolt in there and a nut on it, and then tapped the nut to keep it from coming off. . * The hinge at that time had a rivet on it like the one which is in the hinge you now show me, only the rivet was worn out. It was an old apron. The rivet was about worn out, and I took a chisel and, knocked the end of it off and put a bolt in there with a nut on it and tapped the end of it to keep the nut from coming off.” On this trial the jury found a verdict for the plaintiff as follows: “We, jury, find for the plaintiff the sum, of ten thousand (10,000.-00) and cost of suit.” The- defendant moved for a new trial on numerous grounds, which, as far as necessary, are . stated in the opinion. The motion was overruled, and the defendant excepted. It excepted also to the overruling of a motion to set aside the judgment which was entered upon the verdict.</p>

<p>Equitable petition. Before Judge Holden. - Elbert superior-court. September 11, 1907.</p>

<p>Eviction. Before Judge Little. Marion superior court. August 5, 1907.</p>

Mandamus. Before Judge Gober. Forsyth superior' court. October 19, 1907. In August, 1907, the Bank of Cumming applied for a mandamus to compel H. V. Jones, as ordinary of Forsyth County, to issue an order or warrant on the treasurer of such county for the sum of $3,600, and to deliver the same to the petitioner.

<p>1. Where exceptions to an auditor’s report are overruled, and proper exceptions pendente lite are taken to the judgment overruling them, and a final decree is entered adopting the auditor’s report, a hill of exceptions assigning error on the pendente lite exceptions, and also on the final decree, will not be dismissed because the assignment of error on the final decree is general.</p> <p>(u) The final decree was not a consent decree.</p> <p>2. The construction placed on the will of Asa Prior by the auditor is affirmed.</p> <p>3. Where in a suit to subject trust property a decree has been rendered, adjudging that the plaintiff is entitled to recover a certain amount to be paid from the income, and also adjudging that a stated amount of the income had been added to the corpus in the purchase of a certain house, which house is directed to be sold by the trustee, and from the proceeds of sale'this amount, shall be paid to the plaintiff, and the balance of the funds is to be held subject to the further order of the court; and where the trust becomes executed before the final decree, in the distribution of the proceeds of the house the amount of the income which had been used in its purchase, which under the former decree was adjudged to be subject to the plaintiff’s debt, should be applied to the payment of the judgment before the remainder of the fund is distributed among its owners.</p>

<p>Motion, for new trial. Before Judge Freeman. Haralson superior court. July 19, 1907.</p>

<p>Equitable petition. Before Judge Lewis. Laurens superior court. July 29, 1907.</p>

Equitable petition. Before Judge Little. Chattahoochee superior court. April 6, 1907. E. J. and B. L. Wynn filed their petition against J. W. Osteen and others, to recover damages for trespass already committed by reason of defendants having entered upon described land of plaintiffs with their sawmill and sawed timber thereon, and to enjoin defendants from further trespass.

<p>1. The husband and wife being domiciled in Georgia, the husband left the wife, acquired in good’ faith, after a lapse of five years, a domicile in Kansas, and obtained in that State, and in accordance with its laws, a judgment of divorce a vinculo, based on constructive, and not actual, service of process on .the wife, who meanwhile remained domiciled in Georgia and never appeared in the action. Held, that the Kansas judgment was - not entitled to obligatory enforcement in Georgia by virtue of the Civil Code, §5237, which provides that records and' judicial proceedings, properly authenticated, shall have such faith and credit given them in every court within the United States as they have by law or usage in the courts of the State from which they are taken.</p> <p>2, It appearing that the grounds of the divorce, as found by the Kansas court, were in accordance with recognized principles underlying the marriage state, and that notice of the pendency of the suit was given by publication, a copy of the same being sent by mail to th'e wife, who had reasonable time to appear and defend, but failed to do so, and allowed the husband to obtain a decree, upon the faith of which he contracted a subsequent marriage, it is proper for our courts, on the ground of comity, to recognize the validity of such divorce, it not appearing that any imposition, fraud, or concealment was practiced by the • husband in procuring the . decree.</p> <p>3. Subsequently to the rendition of the Kansas decree of total divorce, the wife instituted suit for alimony in Georgia, and obtained personal service in this State on the husband, who pleaded and set up the Kansas judgment. Beld, that the wife’s suit for alimony can not be maintained, and a verdict in her favor must be set aside.</p>

<p>Complaint for land. Before Judge Hammond. Burke superior court.' May 27, 1907.</p>

<p>Complaint. Before Judge Cann. Chatham superior court. June 26, 1907.</p>

<p>Equitable petition. Before Judge Roan. Gwinnett superior court. February 2, 1907.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. April 29, 1907.</p>

<p>Petition for injunction. Before Judge Edwards. Douglas superior court. November 12, 1907.</p>

<p>Injunction. Before Judge Pendleton. Eulton superior court. June 6, 1907.</p>

<p>Petition for direction. Before Judge Cann.' Chatham superior court. February 2, 1907.</p> <p>Margaret W. Thomas, as executrix of Mary W. Owens and individually, and Mary B. Thomas and Margaret G. Thomas, daughters óf Margaret W. Thomas, brought their petition against George W. Owens, executor, and certain other defendants named as legatees in the will of Mary W. Owens, praying a construction of the will and codicil of Mary W. Owens, and asking for direction. The headnote contains a copy of the material parts of the will and codicil attached to the petition. The several defendants answered. By consent the case was heard by the court without a jury. On the trial it appeared that the bequests in the first item of the will were not in dispute. Certain evidence, relating to the circumstances attending the execution of the codicil and the character of the estate in posssession of the executors, was introduced. The court rendered the following decree: It is decreed “that the intention of the testatrix, Mary W. Owens, as clearly expressed, in her will, as modified by the codicil thereto, both to the court now submitted for construction,' is that the estate left by her is not to be divided until the death of her sister, Margaret W. Thomas, the plaintiff executrix; and the court so finds and decrees. 2. That during the lifetime of the said Margaret W. Thomas the said estate is to be kept together by the representatives named in said will in trust: (a) To pay the net income thereof unto the said Margaret W. Thomas during the term of her natural life, (b) To divide the said estate among those entitled thereto, and in the proper proportions, at the death of the said Margaret W. Thomas. 3. That the executrix, Margaret W. Thomas, and the executor, George W. Owens, have authority under said will, and are directed so to do, to sell any of the property of said estate at public or private sale as may be deemed best by them, and to reinvest the proceeds of any such sale as they may deem best for the interests of the said estate. 4. That the said Margaret W. Thomas is not individually and in her own right entitled in fee simple to a one-half interest in the residue of said estate mentioned in the third item of said will, and is not now entitled to receive the same from the representatives of said estate, the codicil having changed the interest of the said Margaret W. Thomas from a fee simple in said one-half’ of said residue to a usufruct in the net income in the said one-half interest, to be paid unto her during the term of her natural life by said representatives, the corpus not being payable to her but to be held by said representatives in trust for the persons hereinafter named in connection therewith. 5. That the words, ‘her heirs/ in item third of the will, as referring to the heirs of Margaret W. Thomas, mean the children of Margaret W. Thomas living at the time of the death of the testatrix, and the said children, Mary B. Thomas and Margaret G. Thomas, petitioners, take the one-half interest in the residue, which under the will as unmodified by the codicil would have gone to their mother, by way of executory devise or legacy in fee simple at the death of their mother. 6. That the said Margaret W. Thomas is entitled under said will, as modified by said codicil, not only to the usufruct of the net income of the residue of said estate as described in item third of the will, but also of the net income of the one-fifth interest owned by the testatrix in the premises known as number 122 State street, Savannah, Ga., described in item two of said will, to be paid over to her by said representatives. 7. That under the said will as modified by said codicil, Paul T. Haskell, the junior, and Langdon Haskell, the grandnephews of the testatrix named in item two of said will, take by way of executory devise a fee-simple interest in the one-fifth interest owned by the testatrix in said premises, number 122 State street, Savannah, Ga., the enjoyment of which is postponed until the death of the said Margaret W. Thomas. 8. That of the residue of the' said estate referred to in item third of said will, the following distribution results at the proper time, as herein stated: (a) Lizzie Munnerlyn, Margaret W. Owens, and Julia Owens take by way of executory devise or legacy, as the case may be, together a fee-simple interest in one fourth of the residue of said estate, the enjoyment thereof being postponed until the death of the said Margaret W. Thomas; the heirs of the said first-named persons taking per stirpe. (&) Mary Anderson Owens takes by way of executory devise or legacy, as the case may be, a life-interest in another fourth of the said residue, the said estate beginning at the death of the said Margaret W. Thomas, subject to a failure or divestiture should she, the said Mary Anderson Owens, die or marry. In either event, the said one-fourth interest in said residue goes by way of executory devise or legacy, as the ease may be, in fee simple to Lila C. Carmichael, Benjamin L. Owens, and John D. Owens, per capita, or to their heirs, per stirpe. The remaining moiety of said residue goes as already hereinbefore decreed. This decree is not concerned 'with the property mentioned in the first item of said will, that having been amicably adjusted among the parties at interest before the submission of said will and codicil to the court for construction, and the construction of the court thereon not being invited.” The plaintiffs except to the decree and the construction of the court placed on the will.</p>

<p>Injunction. Before Judge Freeman. Troup superior court, October 14, 1907.</p>

<p>Action for damages. Before Judge Whipple. Ben Hill superior court. April 5, 1907.</p>

<p>Under the act creating Tift County, and the general law, that county has ho right of action to recover from Berrien County (from the territory of which it was in part formed) any portion of the funds in the latter’s treasury raised, during the year in which Tift County was created, by tbe levy and collection of taxes assessed against the property or citizens of that portion of Berrien County which was transferred to Tift County.</p>

<p>Appeal. Before Judge Pendleton. Pulton superior court: July 1, 1907.</p>

<p>Mandamus. Before Judge Boan. Clayton superior court. January 18, 1908.</p>

<p>Equitable petition. Before Judge Gann. Chatham superior court. April 1, 1907.</p>

Equitable petition. Before Judge Kimsey. Douglas superior court. May 22, 1907. James brought his equitable petition against the County of Douglas, seeking an injunction against the enforcement of a certain tax ñ. fa., and praying judgment for the sum of $300, alleged to be due him as fees for certain services performed by him as an attorney at law, under a contract of employment by the county.

. Appeal. Before Judge Lewis. Morgan superior court. June 19, 1907.

<p>1. In a suit for malicious prosecution of a criminal ease, without probable cause, or a malicious use of legal process in a civil case, consisting in maliciously instituting and prosecuting such a case without probable cause, it is necessary to allege and prove that the action’ in which the process issued has been finally determined in favor of the defendant therein. In an action for a malicious abuse of process by employing process, legally and properly issued, wrongfully and unlawfully for a purpose which it was not intended by law to effect, it is not necessary to allege and prove the termination of the action in which the process issued.</p> <p>2. A' petition alleged that an action to recover personal property was brought, and bail process was taken out in connection therewith, under the Civil Code, §4604; that the plaintiff in the action knew that the defendant did not have the property in her possession, custody, or control; that it was the purpose of the proceeding to compel her to give up a certain piece of jewelry which she wore on her person, and to pay a debt due by her for a balance of the purchase-money on the furniture; that she was arrested, and kept in custody for five hours; that the purpose of the process and the use which.it was made to serve was not that contemplated by law, but was to compel her to surrender a diamond brooch, and to make payment of a debt in agreed instalments; that she was thus coerced into delivering the diamond and signing an agreement in regard to making payment, and was thereupon released. Held, that the petition set out a case of malicious abuse of legal process.</p> <p>3. The evidence introduced in support of the action made out a prima facie ease, and the granting of a nonsuit was error.</p>

'Appeal. Before Judge Holden. Oglethorpe superior court, July 13, 1907. W. F. Mattox died intestate, leaving an estate and ten .children, but no widow. There was a contest for the right to administer upon the estate.

<p>Action for damages. Before Judge Eamsey. Gwinnett superior court. June 6, 1907.</p>

<p>1. Employees of a common master, engaged in labor for tbe furtherance of the general purpose of the business in which they contract to serve, are fellow-servants within the purview of the Civil Code, § 2610, providing that, “Except in case of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business.”</p> <p>2. Under this rule, a teamster employed by a coal and iron company to assist in hauling a boiler from the furnace plant of the company to its coal mines, to be there used in getting out coal for consumption in the furnace and locomotives of the company, is a fellow-servant with the engineer and fireman of a locomotive operated in the yards of and in connection with such furnace plant, and therefore not entitled to recover damages from the master for injuries attributable to their negli' genee.</p>

<p>1. It is not a valid ground of objection to an instrument in the form of a receipt, tendered in evidence by a defendant, that it is irrelevant, in that it does not refer to the matter in controversy, when the answer of the defendant alleges that there was a mistake in the wording of such instrument and clearly shows a purpose to prove that it was intended by the parties to the transaction in which it was given to refer to such matter.</p> <p>2. Assignments of error upon given charges of the court, as not being authorized by the pleadings and the evidence, are clearly without merit, when this court has, upon a former occasion, in the same ease and upon the same pleadings, held substantially similar instructions to be applicable to the issues, made-therein, and when such instructions were again authorized by the evidence before the jury.</p> <p>3. It was not error for the trial judge to construe the answer of the defendants as it was construed by this court when the ease was formerly here.</p> <p>i. The evidence was sufficient to authorize the verdict, and the. court did not err in refusing to grant a new trial.</p>

<p>Complaint. Before Judge Lewis. Greene superior court. June 3, 1907.</p>

<p>Claim. Before Judge Lewis. Greene superior court. June 3, 1907.</p>

<p>Complaint for land. Before Judge Spence. Mitchell superior court. April 17, 1907.</p>

<p>Action on insurance policy. Before Judge Littlejohn. Sumter-superior court. January 18, 1907.</p>

Action for breach of contract. Before Judge Lewis. Greene superior court. September 6, 1907. R. L. McCommons and others brought suit' against J. B. Williams.

<p>Contest of election. Before Judge Worrill. Terrell superior court. May 27, 1907.</p>

<p>The evidence in this ease did not demand a verdict for the defendant, and the court erred in directing the jury to return a verdict in his favor.</p>

<p>Injunction. Before Judge Spence. Mitchell superior court. December 7, 1907.</p>

Trover. Before Judge Whipple. Ben Hill superior court. May 21, 1907. Alice Y. Prescott sued the Garbutt Lumber Company, J. W. Garbutt, T. W. Garbutt, E. J. Garbutt, and M. W. Garbutt, to recover two certain promissory notes, one for $1,000 and one for $2,500, with interest at eight per cent., and providing for ten per cent, attorney’s fees, said notes being signed by II. L. Garbutt, and payable to the order of Alice V. Prescott.

Injunction and receiver. Before Judge Eite. Bartow superior court. June 39, 1908. E. H. Enwright filed an equitable petition against the Bartow Lumber Company and seven named individuals, the pertinent allegations of which are as follows: The defendant company is a corporation, and the plaintiff and the seven individual defendants are its directors.

<p>Injunction. Before Judge Pendleton. Pulton superior court. May 30, 1907.</p>

Complaint for land. Before Judge Hammond. «Burke superior court. July 23, 1907.

<p>Action for damages. Before Judge Fite. Dade superior court. April 29, 1907.</p>

Equitable petition. Before Judge Lewis.- Baldwin, superior court. January 16, 1907.

<p>Uriah. B. Harrold, the heirs at law of Thomas Harrold, and the administratrix of one Johnson brought their equitable petition to recover from the defendants certain land which had been conveyed by Uriah B. Harrold, Thomas Harrold, and H. R. Johnson to the predecessor in title of the defendants. The deed of conveyance contains the following stipulation: “To have said several lots under the same tenor as if the same .had been regularly condemned for right of way, depot, yards, side-tracks, and other railroad purposes.” The petition alleges that only a portion of said land is occupied by the railroad company for railroad purposes, having its track and certain railroad buildings thereon, and that the other and remaining portion of said land is occupied by permission of the defendant by private parties wbo have erected “monumental works and wood-shed thereon.” The petition also seeks a recovery of mesne profits against the defendant railroad company and one Clark, the latter being one of the private parties referred to who is in possession of a portion of the land conveyed by said deed. Held:</p> <p>1. The petition does not state a good cause of action for recovery of the land.</p> <p>2. Said petition does not state a ease as against the individual defendant, especially as it does not show what portion of the land is occupied for private purposes by permission of the company, nor for how long a time such portion of the land has been so occupied.</p>

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

<p>1. Where a declaration in attachment alleged that the defendant was indebted to the plaintiff in a stated amount for the purchase-money of certain cars, as shown by a statement of account attached, and the account was for the price of certain dump ears, it was not competent to amend such a declaration by merely alleging that on a certain date the defendant wrote to the plaintiff a letter, of which a copy was set out, and in which it was stated that “We will remit to you for our first payment by New York exchange.” Standing alone, this did not set out any contract, either as being that on which the account was based, or as an effort to plead a new and independent cause of action. Nor was it proper to set out such letter in the pleadings, merely because it might become admissible in evidence in the progress of the case.</p> <p>2. Under a declaration in attachment, based on an account for the price of certain cars, evidence was admissible to show that the cars were in the possession and- use of the defendant shortly after the date of the sale.</p> <p>3. An opportunity for a thorough and sifting cross-examination should be allowed, but the presiding judge may restrain useless and unnecessary repetition of questions.</p> <p>4. Where a written contract for the sale of personal property fixed a time within which shipment should be made by the vendor to the purchaser, parol evidence was admissible to show that time was of the essence of the contract.</p> <p>5. Where suit was brought for the price of personal property, on an open account, although it appeared that there was a written contract for the sale of the property, yet if the evidence for the plaintiff showed that there had been complete performance by the vendor, and nothing remained to be done but for the defendant to pay the purchase-money, a nonsuit was properly refused.</p> <p>6. The evidence was sufficient to make out a prima facie case, and the overruling of a motion for a nonsuit was proper.</p> <p>7. The execution of a written contract can not be proved by the attesting witness by a mere general assertion that it is the contract covering the transaction in question. After proving the execution, if it is necessary to identify the personal property described in it, this may be done by parol.</p> <p>8. If a vendor agreed to ship certain personal property within a stated time, and did not do so, but shipped it some days later, and thereafter wrote to the purchaser that he had made the shipment, to which the purchaser replied that he would remit to the vendor for the “first payment,” upon the arrival of the ears, and there was no evidence of any consideration for this statement in the letter, or that the vendo'r had acted upon it, or had done anything in reliance upon it, this did not constitute, as matter of law, such a waiver of any right on the part of the purchaser to claim damages resulting from a delay in the shipment as to authorize the presiding judge, in a suit by the vendor against the vendee for the purchase-price, to refuse to admit evidence on the subject of damages, and to direct the jury to find a verdict in favor of the vendor for the full amount of the purchase-price.</p>

<p>Equitable petition. Before Judge Whipple. Ben THU superior court. November 26, 1907.</p>

<p>Action for damages. Before Judge Cann. Chatham superior court. May 2, 1907.</p> <p>Lawton brought suit against the General Supply and Construction Company, for damages on account of personal injuries. The petition alleged, that the plaintiff was employed as a general laborer to work in and about the National Bank Building in Savannah, which building was being constructed by the defendant company; that while engaged in his work, going from one part of the building to another, plaintiff, by the direction of an agent or foreman of the company, passed beneath some scaffolding on the first floor of the building, and while passing beneath this scaffolding, some one called, “Look out!” and before he could escape from the room the scaffolding fell and injured him; that he was in the exercise of due care and caution, he had no knowledge of the defective condition of the scaffolding, nor could he have discovered the same; that the injuries received by him were due to the negligence of the company in allowing the scaffolding to be so defectively constructed or in such defective condition that it would fall; that the company was further negligent in permitting him, while in its employment, to go through the room and beneath such defective scaffolding, and that the company knew the defective condition thereof. He amended by alleging, that said scaffolding was erected by the defendant or its agents, and was at all times under the company’s control; and that the company had removed two of the central and main supports to the scaffolding for the purpose of removing an engine from beneath the scaffolding, and thereby weakened it to such an extent as to cause it to fall.</p> <p>The defendant demurred to the original and amended petition, both generally' and specially. The demurrer was overruled. It fded a plea and answer; and the case proceeded to trial upon the issues made. After the plaintiff had closed his testimony the defendant moved for nonsuit, and the motion was overruled. A verdict was rendered in favor of the plaintiff. The defendant’s motion for a new trial, was overruled; and it excepted to each of the rulings stated.</p>

Action for damages. Before Judge Seabrook. Effingham superior court. July 13, 1907. Martha McCoy brought suit to recover damages alleged to have been sustained by reason of the negligence of the railway company.

<p>Action for damages. Before Judge Lewis. Morgan superior court. March 6, 1907.</p>

Action for damages. Before Judge Gober. Cobb superior court. January 15, 1907. Tilson sued on account of personal injuries, alleged to have been sustained by him. in consequence of the negligence of the railway company. The petition alleged: At the time he received his injuries, and for some time prior thereto, he was employed by defendant as a freight-train hand, his position being that of head brakeman and flagman.

<p>A common carrier is bound to receive all goods offered that he is able and accustomed to carry, and to transport and deliver such goods in pursuance of the bailment; and where he receives goods offered, the possession thereof by the person offering the same as freight being apparently rightful, though as a matter of fact it may not be actually so, the carrier will not be liable as for a conversion, in an action brought by the true owner, unless the latter intervenes before the goods are delivered and demands them or gives notice of his right to the property in question and of his intention to enforce it.</p>

<p>1. It was not error to charge: “Whenever a transaction is between husband and wife, and creditors attack it, then the law throws the onus, that is the burden of proof, on the wife, when she claims the property purchased or received from her husband, to make a fair showing of the whole transaction.”</p> <p>2. The charge of the court upon the question as to the existence of fraud in the conveyance by the husband to the wife of the lands upon which the plaintiff’s attachment against the husband was subsequently levied, when fairly considered as a whole, did not put the burden upon the wife, as the claimant, of showing that her husband, the defendant in execution, had no fraudulent intent in conveying the property in question to her; nor was it justly subject to exception upon the ground that it failed to instruct the jury that fraud by the husband in this transaction with his wife, unknown to her and which she had no reasonable ground to suspect, would not be sufficient to invalidate the deed which he made to her. ' «</p> <p>3. It was not error to instruct the jury that in passing upon the question whether there was fraud in the transaction between the husband and the wife, the question whether the debt in payment of which the wife claimed that the husband conveyed the property in controversy to her was barred by the statute of limitations was a circumstance which they might consider.</p> <p>4. A claimant can not rely upon title acquired from a third person after the levy of the execution and the filing of the claim.</p> <p>5. Even if a claimant who admits possession in the defendant in fi. fa. at the time of the levy and assumes the burden of proof, upon showing some interest in the property, can set up that the defendant in fi. fá. had, before the levy, conveyed the property to a third person to secure a debt, taking bond for reconveyance on payment, and that the defendant has not been reinvested with the title, yet when the only interest which such a claimant sought to assert was by virtue of a deed from the defendant in fi. fa., and this was attacked on the ground that it was a fraudulent conveyance and void against creditors, after verdict finding the property subject to the levy the verdict will not be set aside on a general ground of a motion for a new trial, alleging that the verdict was contrary to the evidence.</p> <p>6. Where an attachment sued out under the fraudulent debtor’s act is levied upon land as the property of the defendant in execution, and such' property is 'claimed by another person, the question whether the right of the attaching creditor to sue out the attachment had become barred by the statute of limitations at the time he proceeded to do so is not one which can be raised by the claimant upon the trial of the claim case. This is true although it appears from the evidence that the claimant relies for title upon a deed from the defendant in the attachment proceeding, which was alleged in the attachment affidavit to have been executed for the purpose of defeating and defrauding the attaching creditor.</p> <p>7. The evidence was sufficient to authorize the jury to find the property subject, and there was no error in overruling -the motion for a new trial.</p>

<p>1. Where a defendant in an action of ejectment may have an action over against a warrantor of title, and vouches him into court by giving notice of the pendency of the suit, the judgment rendered therein will be conclusive upon the party vouched, as to the right of the plaintiff to recover.</p> <p>2. As to a defense which the person vouched could have set up in the ejectment case, and which, if sustained, would have defeated a recovery, he is concluded, and can not set it up in a suit for a breach of his warranty of the title, on account of the recovery in the ejectment cause.</p> <p>?. This is also true if the defense was actually set up and passed upon in the first suit.</p> <p>i. As a general rule, on a breach of warranty, the measure of damages is the purchase-money, with interest; and expenses of litigation, attorney’s fees, cost, and traveling expenses are not proper elements of damage.</p>

<p>Slander. Before Judge Spence. Mitchell superior court. March 7, 1907.</p>

<p>Trespass. Before Judge Whipple. Irwin superior court. March 5, 1907.- "</p>

<p>Indictment for murder. Before Judge Lewis. Jasper superior court. April 20, 1908.</p>

<p>Mandamus. Before Judge Boan. Clayton superior court. May 28, 1908.</p>

<p>Injunction. Before Judge Parker. Glynn superior court. April 4, 1908.</p>

<p>1. Where a deed executed in 1857 recited the grantor as a named person, “administrator of the goods and chattels, rights and credits, and which were of [another named person], deceased, of the first part,” and stated that the grantor, “administrator as aforesaid,” conveyed certain described lots, and that in testimony thereof the grantor, “administrator,” 'thereunto set his hand and seal, this was sufficient to show the intention of the maker of the deed to convey as administrator of the decedent, although the maker signed his individual name without the addition of his title as administrator.</p> <p>2. An order was granted by the ordinary of Chatham county, authorizing a sale by an administrator of the lands of his intestate. The exact date of the order is not shown. The administrator made a deed to certain land in Baker county. The caption was, “State of Georgia, Baldwin County,” and the deed was dated, “December 25, 1857.” It contained no reference to the order of sale and no recital as to any public sale or the manner of the sale, but was merely a conveyance of the property to the grantee named therein. There was no aliunde evidence of any public sale, or that it was made in pursuance of the order of court, or any proof of possession under the deed. It was admitted as a muniment of title in behalf of a plaintiff seeking to recover the land; and the presiding judge charged in effect that the plaintiff’s chain of title was sufficient to make out a prima facie case. Held, that the admission of the deed and the charge of the court on this subject were erroneous.</p> <p>3. Under the circumstances recited, lapse of time, though more than 40 years before the institution of the suit, did not raise a presumption of regularity and authority to make the deed which would authorize its admission in evidence, without more.</p> <p>4. Where a deed was made to land in a certain county, and under an act of the legislature provision was made for the creation of a new county, which would include the land within its boundaries, but a time was fixed whei^officers for the new county should be elected and its political' and official organization should be perfected, the record of the deed in the original county prior to such time was a lawful recordation.</p> <p>6. Where, pending an action to recover land,, the plaintiff filed an affidavit alleging the forgery of a deed under which the defendant claimed title, this put the burden of proof, as to the genuineness of the deed attacked, on the party asserting it; and where this issue was by consent tried together with the other issues in the case, the burden of proving the genuineness of the deed still remained upon such party, as if that issue had been tried alone. Eollcmd v. Carter, 79 Qa. 139 (3 S. E. 690).</p> <p>o. If, upon an issue of forgery made by affidavit duly filed, a deed should be found to be forged, it would not operate to convey a good title to the grantee therein or persons holding under him; nor would the good faith of a subsequent holder suffice to make such conveyance a good transfer of title. Good faith would be immaterial unless title by pre- „ seription was involved.</p>

<p>Equitable petition. Before Judge Mitchell. Tift superior court. November 25, 1907.</p>

<p>Complaint. Before Judge Mitchell. Tift superior court. Deeember 12, 1907.</p>

<p>Equitable petition. Before Judge Martin. Montgomery superior court. August 12, 1907.</p>

<p>1. A deed to one as trustee for “the heirs of his body,” he having three children, all of whom were minors, created a trust estate for such children.</p> <p>2. A trust estate may be created for minors, and the legal title will not merge into the equitable interest during their minority, so as to vest in them, although the deed does not in terms provide for any duties to be discharged by the trustee.</p> <p>3. Since the passage of the act of 1876 (Civil Code, §4987), an order granted at chambers authorizing a trustee for minors to sell the trust ■property was not binding on them, where they were not served, although .a guardian ad litem was appointed for them; and a deed made by the trustee in pursuance of such an order did not convey a valid title.</p> <p>4. The general rule that one must be the owner of property in order to remove a cloud from the title can not be applied so as to defeat a proceeding by minor beneficiaries of a trust, to cancel a deed executed by their trustee without lawful authority. The grantee in such a deed can not retain it and claim under it, and yet defeat an effort to cancel it by setting up an outstanding title in a third person.</p> <p>5. The evidence was sufficient to authorize the verdict, and none of the rulings of which complaint was made were such as to require a new trial.</p> <p>6. The rejection of a proposed amendment to an answer of a defendant does not furnish a proper ground of a motion for a new trial. To such a ruling a bill of exceptions pendente lite may be filed, and error assigned thereon when the case is ultimately brought to this court by bill of exceptions; or if the case is brought to .this court by bill of exceptions to a final judgment, or to a judgment which would have been final if rendered as the complaining party contends it should have been, arid if such bill of exceptions is tendered within the time limited by law after the ruling on the rejection of the amendment, the plaintiff in error may include in such main bill of exceptions an exception to such ruling and an assignment of error thereon.</p>

<p>Motion fo.r new trial. Before Judge Martin. Montgomery superior court. December 16, 1907.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. November 11, 1907.</p>

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

<p>• Temporary alimony. Before • Judge Ellis. Fulton superior court. January 14, 1908.</p>

<p>Petition for injunction. Before Judge Kimsey. Rabun superior court. March 3, 1908.</p>

<p>1. A writing signed by an owner of land or liis authorized agent, acknowledging the receipt of a part of the purchase-money, but entirely omitting any reference to the purchase-price, does not comply with the statute of frauds relating to contracts for the sale of land.</p> <p>2. Where partial payment, accompanied by possession, is relied upon to take a parol contract for the sale of land out of the operation of the statute of frauds, the possession of the vendee must be actual, definite, and exclusive of the vendor, and with'the express, or implied consent of the vendor.</p>

<p>Certiorari. Before Judge Fite. Dade superior court. November 26, 1907.</p>

<p>Equitable petition. Befpre Judge Mitchell. Brooks superior court. January 18, 1908.</p>

<p>1. In an action on a general warranty of title to land against the claims of all persons, an eviction or equivalent disturbance by an outstanding paramount title must be alleged.</p> <p>2. If a deed purport to convey the right, title, and interest of the grantor in and to certain described realty, instead of conveying the realty itself, the covenants in the deed will be limited to the right or interest which the grantor has in the property.</p> <p>3. Covenants of title do not apply to land not included in the conveyance.</p>

<p>Equitable petition. Before Judge Mitchell. Brooks superior court. November 5, 1907.</p>

Before Judge Parker. Glynn superior court. December 5, 1907. On December 4, 1906, during the regular term of Glynn superior court, the case of Mallie R. Davenport against the Mayor and Council of the City of Brunswick was tried, resulting in a verdict and judgment for the plaintiff. On December 5, 1906, while the term was still in session, the defendant filed its motion for a new trial, which was regularly filed, and the following order taken thereon: “Read and considered.

<p>Motion to enter decree. Before Judge Pendleton. Fulton superior court. January 18, 1908.</p>

Action for damages. Before Judge Lewis. Taliaferro superior court. August 27, 1907. Lola Lou Smith, brought suit against the Georgia Railroad & Banking Company, alleging, in brief, as follows: On June 10th, 1905, she was a passenger on the railroad of the defendant. The train was composed partly of passenger-cars and partly of freight-cars. A car in front of the one occupied by her and other passengers was loaded with flour beyond its capacity and safety.

<p>'One riding on the engine of a passenger-train by invitation of the conductor, engineer, and fireman, and without paying or intending to pay fare, it not appearing that there was any rule or custom permitting persons to so ride, was a trespasser; and his widow had no cause of action' against the railroad company for his homicide, resulting from, the derailment of the train caused by the defective condition of the track.</p>

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

<p>Processioning. Before Judge Fite. Milton superior court. September 9, 1908.</p>

<p>1. Where suit was brought jointly against two defendants for malicious prosecution, and a verdict was rendered against them for a stated amount, “to be equally divided between them,” this was in effect a several verdict for one half the amount stated against each of the defendants, and was not legal.</p> <p>2. The illegality of such a verdict could not be cured by writing off one half of the finding and entering up judgment for the other half jointlyv against both defendants.</p> <p>3. A verdict having been returned and a judgment entered as indicated in the preceding headnotes, on motion duly made the judgment should have been arrested and the verdict have been set aside. '</p>

<p>Action for breach of contract. Before Judge Eite. Dade superior court. November 26, 1907.</p>

<p>Tlie verdict in this case was not supported by tlie evidence, and tlie refusal of a new trial was error.</p>

<p>Where, after the passage of the act of 1905 (Acts 1905, p. 425), but before the amending act of 1906 (Acts 1906, p. 61), which made provision to cure the unconstitutional feature of the former act, as ruled in Brotvn v. Southern Railway Company, 125 Ga. 772, a lqeal election to authorize the levy and collection of an educational tax in a school district was held, being then without constitutional authority, it did not warrant the assessment and collection, of such a tax.</p>

Petition-for injunction. Before Judge Charlton. Chatham superior court. June 27, 1908. This controversy is between two adjacent land proprietors over a certain passageway' between their respective tracts. The plaintiff, Y. G-.'Sehreck, owns a part of the Champion Falligant land.

<p>Attachment for contempt. Before Judge Felton. Bibb superior court. May 1, 1908.</p>

<p>Complaint. Before Judge Holden. Elbert superior court. October 2, 1907.</p>

<p>Indictment for murder. Before Judge Wright. Eloyd superior court. June 24, 1908.</p>

<p>L The evidence was sufficient to support the verdict.</p> <p>2. That the court remarked, in admitting! certain testimony, “I will' admit it, and let the jury pass upon it for what it is worth,” will not require the grant of a new trial on the ground that the remark made by the court contained an expression or intimation of opinion by the court as to the weight which the jury should give to the evidence referred to.</p> <p>3. The newly discovered evidence, purely cumulative in character, will not require the grant of a new trial.</p>

<p>Indictment for murder. Before Judge Beagan. Pike superior court. June 27, 1908.</p>

<p>Indictment for murder. Before Judge Felton. Houston superior court. August 3, 1908.</p>

Equitable petition. Before Judge Martin. Dodge superior court. November 27, 1907. S.. A. Buchan and others, as the widow and children of T. J. Buchan, filed an equitable petition against A. G-. ’Williamson, to cancel a deed made by the sheriff to the defendant, and to compel a cancellation of a deed to secure a debt, or, in lieu thereof, a re-conveyance of the property therein described.

<p>Where, in .an action of complaint for land, the petition showed that the plaintiffs claimed as lieirs-at-law of a decedent, suing- with the consent of the administrator, and also showed on its face that their ancestor under whom they claimed had made a deed conveying the property to the defendant, and there was nothing to show that such deed did not convey a perfect title, the petition was properly dismissed on general demurrer.</p>

<p>The entries made on an execution issued upon a judgment rendered in 1877 need not, under the Civil Code, § 3761, be recorded upon the execution docket in order to prevent the dormancy of such judgment.</p> <p>(a) Civil Code, § 3761, has no application to judgments rendered prior to the act- of the General Assembly approved October 15, 1885 (Acts 1884-5, p. 95).</p> <p>(&) The ruling in the ease of Doeier v. McWhorter, 113 Ga. 584 (2), upon a review thereof, is reaffirmed.</p> <p>(e) Under the allegations of the petition in the present ease, the judgment under which the sale therein referred to was made was not dormant, and the sale was valid.</p>

<p>Where it appeared from an application for processioning that the applicants and other persons, not named in the application, were tenants in common of the land around which it was sought to have the lines surveyed and marked anew, it was error to overrule a motion of a protestant to dismiss the application on the ground that the other tenants in common were not parties thereto.</p>

<p>Money rule. Before Judge Ellis. Fulton superior court. August 10, 1907.</p>

<p>Action upon insurance policy. Before Judge Ellis. Fulton superior court. September 25, 1907.</p>

Claim. Before Judge Brand. Clarke superior court. November 26, 1907. W. H. Ficklin was the owner of. a tract of land. On March 13, 1895, he executed a mortgage on the same to Moody. The mortgage was transferred to Holliday, who obtained a judgment of foreclosure. Holliday transferred the execution and judgment to Mrs. O’Farrell.

<p>Complaint for land. Before Judge Martin. Taylor superior court. October 7, 1907.</p>

<p>Where, in a suit for damages by an employee of a railroad company against sueli company and another employee who was the engineer in charge of a locomotive, the petition alleges that the engineer suddenly, unusually, and unnecessarily slackened the speed of the train on approaching a station, thereby causing the plaintiff to be injured by being thrown, without his fault, to the ground from the top of a caboose, where he went in the performance of his duty on approaching such station, without alleging that the-engineer knew, or alleging facts or circumstances charging him with notice that the plaintiff was, or was liable to be, at the time in such position, such petition was subject to demurrer by the engineer.</p>

<p>1. A mandamus 'will not lie to compel an officer to do an act which he has no legal power to perform when the application for the writ is made.</p> <p>2. A court will always abstain from passing upon the question of the constitutionality of an act of the legislature, if there be any other ground in the case upon which to rest its decision.</p>

<p>A as transferee of B brought suit against the county of E. upon account comprising various items of expenses incurred by B in going to and returning from the State of Texas, to which State B had gone as agent of the State of Georgia with requisition papers on the Governor of Texas for a prisoner, who had lied from this State, after his conviction in the superior court of the county of E., to the State of Texas, where he was arrested and incarcerated until delivered to B, the agent of the State of Georgia. Held, that the court below did not err in dismissing A’s suit upon general demurrer filed thereto by the county, the defendant in the suit.</p>

<p>1. A sale of land by a wife to her husband, without being allowed by order of the superior court of her domicile, is invalid.</p> <p>2. A husband can not hold, adversely to his wife, premises of which they are in joint occupancy as a family, so as to prescribe against the wife under a deed of bargain and sale from her.</p>

<p>Application for receiver, etc. Before Judge Mitchell. Tift superior court. January 11, 1908.</p>

<p>Equitable petition. Before Judge Martin. Telfair superior court. September 14, 1907.</p>

Equitable petition. Before Judge Ellis. Eulton superior court. September 27, 1907. The Atlanta Brewing- & Ice Company filed its equitable petition against C. J. Simmons and several other defendants.

Garnishment. Before Judge Pendleton. Fulton superior court. September 19, 19071 Judgment was rendered in the superior court against Barnes, who was constable of a justice’s court. The judgment was transferred by the plaintiff therein to Sparks, who had summons of garnishment issued and served upon Bloodworth, who was justice of the peace of the court of which Barnes was constable.

<p>1. The relationship of uncle and nephew will not support an insurable interest.</p> <p>2. Where an insurance company issued a policy at the instance of the insured, payable to a named person as nephew of the insured, who was also his ward, and upon the death of the insured voluntarily paid the policy to the nominated beneficiary, neither the creditors nor the administrator of the insured can recover of the beneficiary the excess of the amount collected after discharging the guardian’s debt to the beneficiary, on the ground that at'the time of the issuance of the policy the insured was indebted as guardian of the beneficiary, and ttsed the ward’s money in paying all premiums subsequent to the initial payment.</p> <p>3. In the administration of an estate, debts due by a deceased person as guardian for the estate committed' to him as such rank in priority over debts due on judgments obtained during the lifetime of the deceased.</p>

Tear’s support. Before Judge Rawlings. Emanuel superior court. October term, 1907. Mrs. Tberessa Edenfield filed'her application for a year’s support, as the widow of John Edenfield Sr., deceased, alleging that there were no minor children. A caveat was filed by the executor of the decedent, on the following grounds: (1) That the applicant had been fully provided for, and had a sufficiency of property to cover this application.

<p>1. Even if the rejection of the proffered testimony of one of the defendants, as set out in the first ground of the amendment to the motion for a new trial, were, when considered without more, error, it was not cause for a new trial, when the witness gave the same testimony in another part of his evidence.</p> <p>2. A ground of a motion for a new trial assigning error upon the admission of an incomplete and, therefore, meaningless sentence in the testimony of a witness presents no point for adjudication.</p> <p>3. The verdict was supported by the evidence, and the court did not err in refusing to grant a new trial.</p>

<p>Temporary alimony. Before Judge Mitchell. Brooks superior court. July 31, 1908.</p>

Equitable petition. Before Judge Mitchell. Colquitt superior court. October 10, 1907. Uretta Boland brought her equitable petition, in the superior court of Colquitt county, against G. W. Boland, alleged to be a citizen and resident of the State of Florida, and Tommy Matthews, a citizen and resident of the county of Colquitt, alleging, in brief, as follows: Boland is her husband, having married her in 1886.

<p>Appeal. Before Judge Spence. Decatur superior court. November 14, 1907.</p>

<p>1. Where a husband buys land belonging to the estate of his wife’s father at administrator’s sale on twelve months’ credit, gives his notes for the purchase-money, and takes from the administrator a bond for title, and subsequently pays his notes, partly with money borrowed and partly with his wife’s distributive share, with her consent, and takes a deed to the land in his own name, and thereafter sells one. half of the land in payment of the money borrowed (which was much more than one half of the purchase-price), no implied trust as to the remaining half of the land arises in favor of the wife. The transaction amounts either to a gift or loan of money by the wife to the husband.</p> <p>2. There was no error in granting a nonsuit.</p>

Complaint for land. Before Judge Edwards. Polk superior court. September 17, 1907. An execution in favor of J. D. Stewart against Mrs. Lillie M. Camp, principal, and W. A. Camp, indorser, was levied on certain land, and a claim was interposed by Mundy and others.

<p>Complaint for land. Before Judge Felton. Butts superior court. September 30, 1908.</p>

<p>1. A written option without consideration, for the sale of land, may be withdrawn or revoked before its acceptance.</p> <p>2. Under the law and facts of this case the verdict was not demanded, and there was no abuse of discretion in granting a new trial for the first time.</p>

<p>Motion to vacate. Before Judge Whipple. Crisp superior court. December 14, 1907.</p> <p>On December 17, 1904, the Merchants & Farmers Bank sued ont a fraudulent debtor’s attachment against It. B. Scarborough, in the superior court of Dooly county, which was levied on certain personal property in the possession of the defendant. Notice was served on the defendant, and a declaration was filed at the first term of the court. Npon the organization of Crisp county the attachment proceedings were transferred to the superior court of that county. No traverse of the ground of attachment nor plea was filed, and at the March term, 1906, of the superior court of Crisp.county a verdict was taken for the plaintiff for the amount declared upon, and a general judgment was entered upon the verdict. At the July term, 1907, of the court, on motion ’ of the plaintiff, the general judgment was amended by declaring that the sum recovered be a special lien upon the attached property. Subsequently the defendant in attachment filed his motion to vacate and set aside the amendment to the judgment, because the judgment was amended without notice to him, and because there is no authority of law to make an amendment of this character after the adjournment of the term of the court at which the judgment was rendered. The court refused the motion, and exception was taken to this order.</p>

Indictment for murder. Before Judge Martin. Laurens superior court. June 23, 1908. George Yopp was indicted for murder, charged with the killing of Dock Cason. Upon the trial it appeared that there were only two witnesses to the homicide, Nat Jones and Neily Cason, wife of the deceased.

<p>Action for damages. ■ Before Judge Mitchell. Berrien superior court. January 8, 1908.</p>

Equitable petition. Before Judge Roan. DeKalb superior court. August 30, 1907.

<p>There being no evidence to authorize it, the court erred in charging the jury as follows: “The plaintiff, in addition to the nominal damages sued for, claims a right to recover punitive damages. In connection with that claim of the plaintiff, I read you certain sections of the code: ‘In every tort there may be aggravating circumstances, either in the act or in the intention, and, in that event, the jury may give additional damages either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff.’ ”</p>

<p>1. In cases of divorce it is the office of the judge, and not the jury, to determine in whose custody the minor .children of the marriage shall he placed; and where there is no exception, to the decree, the discretion of the judge in awarding the custody of a child to one of the parents can not he brought under review.</p> <p>2. A husband may be decreed to pay permanent alimony, although he may not have property either at the time of the filing of the libel for divorce or at the time of the trial, if it appears that he has an earning capacity.</p> <p>3. Notwithstanding a wife may have accepted a sum of money from the husband in full settlement of alimony, the jury may, on the final verdict in the divorce case, allow a reasonable amount for the support of a minor child of the marriage, where by the terms of such settlement no provision is made for the support of the child.</p> <p>4. Where on the final trial of a divorce case it appears that a wife has barred liorsclf of the right to demand permanent alimony, because of a settlement had with the husband, in which no provision is made for a child of the marriage, such settlement is not to he considered by the jury in estimating the allowance to a child which has not previously been awarded to her by decree of the court.</p> <p>ñ. Where on the trial of a libel for divorce, in which alimony is asked for the wife and a minor child, the evidence is undisputed that the wife had entered into an agreement with the husband and his father whereby a certain sum of money had been accepted by the wife in full settlement of permanent alimony, and that the husband had no property, trade, or profession, and his earning capacity was that of an ordinary farm laborer, an award of alimony to the child by the jury of the full amount of the husband’s earning capacity is excessive.</p>

<p>Action for breach of contract. Before Judge Whipple. Wilcox superior court. November 20, 1907.</p>

<p>Complaint. Before Judge Lewis.' Baldwin superior court. January 16, 1908.</p>

<p>Mandamus. Before Judge Gober. Forsyth superior court. August 24, 1908.</p> <p>The Bank of Gumming filed its application for the writ of mandamus against Jones as ordinary of Forsyth county, alleging, in brief, as follows: The jurisdiction over county matters and the management of all county business in Forsyth county is vested in the ordinary. The defendant occupies that office and discharges its duties, as well as that of clerk of the court of ordinary, having no legally appointed and qualified clerk of that court. He had authority to make contracts on behalf of the county with other persons' for building or repairing court-houses and other buildings, and it was his duty to enter upon his minutes all such contracts made by him on behalf of the county, and to keep them of file in his office. On January 9, ‘1905, and after complying with the regulations prescribed by law in such cases, he entered into a contract in writing on behalf of the. county with one Wagener to erect a county court-house. Such contract was duly executed and signed by the contractor and by the ordinary on behalf of the county, and was filed in the office of the latter and left in his keeping as such, and became an official paper. A copy was attached to the petition. Hpon the faith of such contract Wagener proceeded and procured materials and erected a court-house for the county at the site named, which court-house has been occupied by the ordinary and other officers of the county and used by the authorities for all county purposes for which it was intended, since March, 1906. Hpon the faith of the contract, and relying upon the legal presumption that the ordinary had discharged all his duties and complied with the law in regard thereto, the bank from time to time furnished and advanced to Wagener money with which to buy material and pay laborers .for work on the court-house and to carry out his contract, receiving and accepting the county warrants as specified in the contract as payment and security. While the contractor was engaged in the work, and after the building was apparently nearly completed, he gave to the petitioner an order in writing directed to the ordinary, in which it was said, “You will please deliver to S. II. Allen, cashier of the Bank of Cumming, the two remaining county orders which shall be due me as the fifth and sixth payments on the court-house built by the undersigned for said county; and this shall be your authority for the same.” Jones as ordinary of the county accepted this order in -writing as follows: “The within order acknowledged and accepted; as soon as the amounts of the fifth and sixth payments are due, I will issue and deliver the county orders to the within mentioned authority.” A similar order had been given by the contractor to the bank for the fourth- payment, and had been accepted in like manner by the ordinary. The intention of all the parties to the transaction, in giving and accepting these orders, was that the bank should be secured thereby for the money furnished and to be furnished Wagener to enable him to carry out his contract, and that the bank should collect and receive the money on the warrants when paid, and be entitled to the rights of the contractor as to such warrants. Upon the faith of such order and acceptance the bank furnished to the contractor the full amounts for which the warrants were to be issued, or very nearly such amounts. All of the warrants have been issued and paid by the county treasurer, except that for the sixth or last payment amounting to $3,600. .On information and belief it is alleged that Wagener is insolvent, and the amount due by him to the bank can not be realized from him by law. The ordinary refuses to issue the order for the sixth or last payment, and defends against an application to the court to compel him to do so, on the ground, among others, that the contract between himself, on behalf of the county, and Wagener, has- never been entered upon the minutes, as required by law, and that the order and acceptance were not entered upon the minutes of the ordinary. Demaud has been made upon him that each of these instruments be entered upon the minutes of the ordinary, and this demand has been refused. By amendment it was alleged, that the petitioner was informed by the ordinary that the court-house had not yet been fully completed according to the terms of the contract, but there was work still to be done thereon before the ordinary and-the architect mentioned in the contract will receive the building, and under the contract they expected the contractor to do such work; that all the money loaned by the bank was used by the contractor in paying for materials purchased and used, and for labor done in the construction of the court-house; and that the ordinary failed to enter the contract on his minutes, as it was his legal duty to do.</p> <p>The defendant demurred to the petition, and also answered it. The presiding judge certified that it was conceded on the hearing that there was no issue of fact, but only one of law. He made the mandamus absolute, and the respondent excepted.</p>

Complaint. Before Judge Pendleton. Pulton superior court. December 17, 1907. Eitzhugh Knox sued tbe Equitable Loan & Security Company for damages alleged to have resulted from a breach of contract. His petition contained the following allegations: In the fall of 1903,- the petitioner entered into a contract with the defendant “to promote a certain building,” now known as the Peoples Build-, ing, situated in the city of Atlanta.

<p>Petition for injunction. Before Judge Spence. Dougherty superior court. May 29, 1908.</p>

<p>Petition for injunction. Before Judge Mitchell. Lowndes superior court. May 29, 1908.</p>

<p>1. In a suit against an individual it was not erroneous for the judge to refuse to entertain a plea offered by a firm of which the individual was a member, where neither the firm nor the other member thereof was declared against or otherwise appropriately made a party to the suit.</p> <p>2. If it appears on the face of the petition that the suit is brought against an individual for the debt of a partnership of which he is a member, objection may be raised by demurrer. If it does not so appear, but the defendant claims that the suit against him as an individual is based upon a partnership liability, and that the other partner is a necessary party, the point should be raised by a plea in abatement.</p> <p>3. Such a plea is a dilatory plea, and must be filed under oath at the first term of court. Civil Code, §5058; Merritt V. Bagwell, 70 Ga. 578, 585.</p> <p>4. Partners are each liable for the debts of the partnership; and if one be sued upon such a debt, and no objection for nonjoinder is duly raised by demurrer or plea, it furnishes to the defendant sued no defense to prove that he contracted the indebtedness on behalf of a firm of which he was a member, and that he has a partner who is not before the court. Birsoh V. Oliver, 91 Ga. 554 (4), (18 S. E. 354) ; 15 Enc. PI. & Pr. 928.'</p> <p>5. In a suit for the price of personal property, where the petition alleged that the defendant had been the highest and best bidder at an administrator’s sale, and had bought the property from the plaintiff at a certain price, and that it had been delivered to him, mere vague statements in the unsworn answer, to the effect that the defendant denied such allegations, but admitted that a partnership composed of himself and another had bought the property, and it had been delivered to them, were not sufficient to meet the requirements of the law as to a plea in abatement.</p> <p>6. Under the rulings contained in the previous headnotes, a verdict against the defendant was inevitable, and, in the absence of a proper plea «in abatement, there was no error in rejecting evidence, offered by the defendant, that the purchase was made by the defendant for his firm, or in directing a verdict for the plaintiff.</p>

<p>Petition for injunction. Before Judge Bawlings. Emanuel superior court. January 11, 1908.</p> <p>Coleman and others, as citizens and taxpayers of the County of Emanuel, on behalf of themselves and all other citizens occupying a similar position, filed their equitable petition against the members of the Board of Education and also the Commissioners' of Boads and Revenues, for the purpose of enjoining the assessment and collection of a local tax in that county for educational purposes. The act of 1905 (Acts 1905, p. 425), as amended by the act of 1906 (Acts 1906, p. 61), under which the election was held, was attacked as unconstitutional on numerous grounds, and the election held under it was also attacked as invalid for various reasons. Upon the hearing the presiding judge refused to grant an interlocutory injunction, and the plaintiffs excepted.</p>

<p>Equitable petition. Before Judge Wright. Eloyd superior lourt. October 26, 1907.</p>

Action for damages. Before Judge Cann. Chatham superior court. July 18, 1907. W. S. Hubbard brought an action against the Central of Georgia Railway Company, for the -recovery of damages for the loss of services of his minor son, D. E. Hubbard.

Claim. Before Judge Pendleton. Eulton superior court:- December 18, 1907. A fi. fa., in favor of E. E. Lowe Company against Mrs. Lillie Greer and others was levied upon certain real estate in the city of Atlanta, and the Protestant Episcopal Church of the Diocese of Georgia filed a claim to the property.

Injunction. Before Judge Charlton. Chatham superior court. April 17, 1908.

<p>1. Under the ruling in Price v. High, 108 Ga. 145 (33 S. E. 956), which has been followed in a number of cases, including, among others, that of Gray v. Jomer, 127 Ga. 544 (56 S. E. 752), a purported brief of evidence, which is not so in fact, but is extensively interspersed with questions and answers, objections to evidence, statements and arguments of counsel, and colloquies between counsel and the court, and with state'ments by the court, none of which in any wise'throws any light upon the testimony in the case, does not constitute such a brief of evidence as is required by law. The paper filed as a brief of evidence in this case falls within the rulings in the cases cited above, and can not be considered by this court. '</p> <p>2. Considering the ground of the motion for new trial, based on the overruling of the motion to continue the case and taking it up out of its order, in the light of the statements contained in such ground, as modified by the note of the presiding judge, there was no error in overruling it.</p> <p>3. Where an administrator undertakes to sell at public outcry lands of the decedent, and a claim thereto is interposed by a third person, upon the trial of the issue thus raised it is not erroneous for the judge to charge in effect that if the decedent died in possession of the land, such possession would be sufficient to raise a presumption of title.</p> <p>4. If one interposes a claim to a sale advertised by an administrator, and he does so for delay only, he is subject to have damages assessed against him by the verdict of the jury, as in claims under execution sale, to be calculated upon the basis of the value of the property claimed.</p> <p>5. (a) While, in tendering issue in' a claim case on a claim interposed to prevent an administrator’s sale, the administrator was not bound to name a specific sum of damages, which he prayed to be awarded to him on the ground that the claim was interposed for delay only, yet where he did so, and prayed only for the recovery of'a definite sum thus named', he could not recover more; and where a verdict for damages was returned in excess of the amount thus fixed by the pleadings, the excess was not warranted by law.</p> <p>(6) There being no other error requiring a reversal, this court will give direction that the amount of damages found in excess of those claimed shall be written off from the verdict and judgment, and thereupon that the judgment refusing a new trial shall be affirmed.</p>

<p>Action for damages. Before Judge Lewis. Greene superior court. December 2, 1907.</p>

<p>Action for damages. Before Judge Mitchell. Tift superior court. December 9, 1907.-</p>

<p>1. Where purchase-money is paid by a husband who causes the conveyance to be made to his wife, the transaction, in the absence of evidence to the ' contrary, is presumed to be a gift by him to her.</p> <p>2. A sale by a wife to her husband is void when made without being allowed by an order of the superior court of her domicile.</p> <p>3. When the estoppel sought to be set up relates to the title to real estate, the party claiming to have been influenced by the other’s acts or declarations must have been ignorant, not only of the true title, but also of any convenient means of acquiring such knowledge.</p> <p>4. The owner of property is not estopped from setting up his title thereto by reason of acts and declarations on his part, alleged to have induced another to buy it as the property of a third person, unless it appear that the purchaser was ignorant of the falsity of such alleged inducements and really acted upon them and not upon his own knowledge or judgment.</p> <p>5. One who silently stands by and permits another to purchase his property, without disclosing his title, is not guilty of such fraud’ as estops him from setting up title thereto against a purchaser with notice.</p> <p>6. Applying the well-settled principles of law above stated to the evidence in this case, the verdict rendered for the defendant in error was unauthorized, and the court, therefore, erred in overruling the motion for a new trial.</p>

<p>Habeas corpus. Before Judge Brand. Walton superior court, May 4, 1908.</p>

<p>Motion, to set aside judgment. Before Judge Martin. Twiggs superior court. August 8, 1907.</p>

<p>Indictment for murder. Before Judge Bawlings. Emanuel superior court. September 14, 1908.</p>

Action for damages. Before Judge Eoan. Randolph superior court. November 6, 1907. The plaintiff brought suit for damages against the defendant, on account of personal injuries received on November 9, 1905, while in its employment. The defendant filed an answer and pleaded an accord and satisfaction, besides filing a. demurrer to tbe original petition and demurrers to some of tbe allegations in the amendments thereto.

<p>Habeas corpus. Before Judge Rawlings. Jefferson superior court. June 12, 1908.</p>

Foreclosure of lien. Before Judge Wright. Floyd superior court. September 30, 1907. James Neal brought suit against the Davis Foundry & Machine Works, seeking to foreclose a lien for work done and materials furnished in connection with two buildings. The petition was verified by an affidavit stating that it was true to the best of the knowledge and belief of the affiant. The suit was brought to the July, term, 1906, of Floyd superior court.

<p>1. In view of the legislative intent as gathered from the entire act of 1905 (Acts- 1905, p. 425), and the amending act of 1906 (Acts 1906, p. 61), and of the language used in the amending portion of the latter act, the word “now” as contained in the second line of the fourth section, in reciting the entire act as amended, was evidently a clerical error, and should read “not.”</p> <p>2. Where an election was held on June 18, 1907, adopting the law for taxation for school districts under the provisions of the act of 1906, p. 61, and the complaining parties had previously made their tax returns for State and county purposes, but it was not shown that a tax had been levied by the county authorities prior to the time of the election, or that the day for so doing had arrived, it was not illegal for the district school tax to be levied and collected for that year.</p> <p>3. On the contention that railroad property had been omitted and not assessed for taxation, and that thereby the rate assessed against the property of the plaintiffs was increased, under the denial made in the sworn answer and the evidence introduced in support thereof there was no abuse of discretion in refusing the injunction.</p>

<p>Equitable petition. Before Judge Worley. Glascock superior court. October 16, 1907.</p>

<p>Action for damages. Before Judge Gober. Cobb superior court. September 7, 1907.</p>

Action for damages. Before Judge Wright. Walker superior court. November 30, 1907. Holland brought an action against the Durham. Coal & Coke Company, seeking, to recover damages for a personal injury received by him while working in the coal mine of the defendant. The practice was to dig out a gallery or entry, and from this rooms were excavated on the side.

<p>Action upon insurance policy. Before Judge Spence. Mitchell superior court. July 21, 1908.</p>

<p>Illegality. Before Judge Parker. Coffee superior court. March 14, 1908.</p>

Petition for injunction. Before Judge Ellis. Eulton superior court. October 6, 1908.

<p>1. Where, pending a receivership, the result of an equitable suit by .the. State against an insolvent-bank, an intervention is filed by the State, alleging that the bank at the time of its failure was indebted to the State in a certain amount, and said indebtedness was entitled to a preference over other debts due by the bank, and praying for a judgment of the court establishing such preference and requiring the receiver to pay off such indebtedness out of money in his hands as assets of the bank, to which intervening petition certain creditors, depositors of the bank, who are duly made parties to said suit, file their answer, denying any priority in favor of the State’s claim, and setting up other facts as matters of defense, and a hearing is had, and upon the evidence submitted a judgment is rendered, in vacation before the appearance term, upon the issues thus made by the pleadings, establishing the priority of the debt due the State, and ordering the receiver to pay over to the State treasurer money in his hands as assets of the bank on said debt, such judgment is not interlocutory, but final in its nature, and is void for want of jurisdiction in- the court to render the same.</p> <p>2. The State is entitled to priority of payment out of the assets of an insolvent bank which is a State depository, as against individual creditors and depositors. There is nothing in the act creating State depositories, or the acts amendatory thereof, that changes or modifies this right of the State.</p> <p>3. Acts of negligence or wrong conduct, even if such exist, on the part of a State officer can not be pleaded as an estoppel to prevent the State from asserting its right to collect a debt.</p> <p>4. An intervening creditor in an equitable suit takes the pleadings as made by the original party as he finds them when made a party thereto; and where it appears that there has been a waiver of process by appearance and pleading to the original suit, he can not urge the objection that there is no process or waiver of the same.</p> <p>5. In ordinary suits in law or equity, failure to state in the petition to what term of the court the same is returnable would not authorize the dismissal of’the case.</p> <p>6. A petition in equity that asks for the appointment of a receiver to take charge of an insolvent bank and to wind up its affairs, and also prays for a judgment allowing the State bank examiner, who is in charge .of the bank, to retain money out of the assets' of the bank to pay off a debt claimed by the State, is not subject to the criticism that no final judgment is asked or relief prayed for. ■</p>

<p>Indictment for murder. Before Judge Spence. Calboun superior court. September 25, 1908.</p>

<p>Indictment for murder. Before Judge Mitchell. Tift superior court. September 14, 1908.</p>

<p>Motion for new trial. Before Judge Beagan. Spalding superior court. October 5, 1908.</p>

<p>Indictment for murder. Before Judge Fite. Murray superior court. August 14, 1908.</p>

<p>Action for damages. Before Judge Fite. Catoosa superior court. October 25, 1907.</p>

<p>Petition for injunction. Before Judge Wright. Floyd superior court. November 10, 1908.</p>

<p>1. A mere receipt for money is subject to explanation by parol: but if an instrument contains not only a recital of the payment of purchase-money for land, but also an agreement on the part of the maker to execute a conveyance to the other party upon the happening of a eer- ' tain event, parol evidence is not admissible to contradict or vary the terms ,of the contract, and to show that the real agreement was that title should not be conveyed except upon condition of the payment of the purchase-money.</p> <p>2. In order for a plaintiff in ejectment to recover land, he must have a ■ right to the possession thereof.</p> <p>8. Where an owner of land1 executed to another an instrument in writing, reciting that he had received from the other party full payment of the purchase-money for the land, and agreeing to convey title to such other person upon the termination of a certain lawsuit, and permitted the vendee to take possession under such contract, the Vendor could not afterwards evict him by an action of ejectment, whether in fact the purchase-money was paid in full in cash, or whether the vendor extended credit for all or a part of it, taking the promissory note of the vendee therefor, and whether or not the vendee had paid such note upon maturity.</p> <p>4. Where a son purchased land from his father and took a contract in the nature of a bond for title, providing for the making of a conveyance upon the happening of a named contingency, and entered into and held possession thereunder, the law in regard to the presumption of a gift from a father to a child, arising from exclusive possession by the latter for the space of seven years, without payment of rent, unless there is evidence of a loan, or of a claim of dominion by the father acknowledged by the child, or of a disclaimer of title on the part of the child, had no application.</p> <p>5. Under the contentions' made by the defendant, the admission of evidence that it was necessary for the administrator of the obligor to recover the land for the purpose of administration and distribution, if his' intestate could have recovered it, was not error.</p>

<p>Equitable petition. Before Judge Kimsey. Habersham superior court. August 22, 1907.</p>

<p>Action for damages. Before Judge Fite. Gordon superior court. December 18, 1907.</p>

Trover. Before Judge Wright. -Floyd superior court. October 14, 1907. On December 2, 1905, W. J. Camp brought his action of trover against W. N. Horton to recover certain logs described as follows: “900 saw-logs, consisting of pine logs with a fe-w oak, being about 10 to 16 féet in length, 8 inches to 3 feet in diameter, said logs located on the land of H. P. Waters on the left-hand side of the wagon road leading from the. Dalton road to the Hight farm,whereon Alex.

<p>Action for damages. Before Judge Littlejohn. Sumter superior court. August 15, 1907.</p>

<p>Action for damages. Before Judge Edwards. Haralson superior court. October 1, 1907.</p>

<p>Injunction. Before Judge Littlejohn. Sumter superior court. April 11, 1908.</p>

<p>Motion for new trial. Before Judge Whipple. Ben Hill superior court. January 11, 1908.</p>

<p>Appeal. Before Judge Wright. Walker superior court. January 8, 1908.</p>

<p>Indictment for murder. Before Judge Martin. Pulaski superior court. October 5, 1908.</p>

Equitable petition. Before Judge Eelton. Houston superior court. December 30, 1907.

<p>Habeas corpus. Before Judge Brand. Clarke superior court. February 14, 1908.</p>

<p>1. The petition filed in this case was good as against a general demurrer.</p> <p>2. Where a certain fact material to the plaintiff’s case is averred in one paragraph of the petition, a demurrer to that portion of the petition, which negative's the fact so alleged, is faulty, and should be overruled as a speaking demurrer.</p> <p>3. The proceedings in this ease being substantially •a call for probate in solemn form, and the caveat being sufficient to raise the issue of devisavit vel non, the burden of proof was upon the propounders.</p> <p>4. The court properly held, where the will was tendered in evidence by the propounders, that the same was not admissible without proof as re: quired by law.</p> <p>5. There being no evidence to prove the fact of execution or to show testamentary capacity, the propounders failed to carry the burden imposed by the law, and the verdict in favor of the caveator necessarily resulted.</p> <p>6. The court did not err in refusing to dismiss the appeal.</p>

<p>1. The common-law obligation of a carrier by sea is to receive goods which it is able and accustomed to carry, in the order of their tender, without preference to any shipper.</p> <p>2. At common law a carrier’s duty to carry was limited to its facilities for transportation. A navigation company, whose charter confers no power of eminent domain, nor imposes any public duties, is not to be classed as a public or quasi-public institution, and is not bound to provide sufficient facilities to carry all* goods which may be offered to it. It may decline to receive goods for transportation in excess of its carriage capacity.</p> <p>3. A carrier, not a public institution, may select the character of the goods it proposes to carry, or discontinue to carry a particular commodity. r</p> <p>4. A common carrier by sea can not lawfully reject some goods which it professes to carry, and afterwards receive and transport other goods, where at the time of the tender there is room in the vessel for the rejected goods, and the safety of the vessel will in no wise be imperiled.</p> <p>5. The carrier’s common-law obligation of indifferently serving the public in the receipt and transportation of goods does not inhibit a carrier by sea from making “bookings” of freight, — that is, from making specific arrangements for the transportation of goods by a particular vessel, in advance of its sailing d'ay, provided this privilege is indifferently extended to all patrons, or if the grant of this privilege to shippers of one commodity does not interfere with the carrier’s discharge of duty to the shippers of other commodities with respect to the receipt and transportation of their goods. The same rules which govern a carrier by sea in the reception of goods for transportation apply to the carrier’s engagements to transport by a particular vessel, or within a specified limit of time.</p> <p>6. There was evidence authorizing a finding that the defendant discriminated against the plaintiff in the reception and transportation of lumber tendered for shipment, and the court did not abuse his discretion in granting an ad interim injunction.</p>

<p>1. Where a landlord leased to a tenant for a term of five years a hotel de- . scribed as consisting of “the corridor, office, bar, barber-shop, cigar-stand, billiard-room, on the first floor, boiler-house and kitchen fronting on Ellis street, the second, third, fourth, and fifth stories of the hotel proper, the open court on the second floor, the open courts fronting on Ellis street,” and provided that the tenant might sublet the news-stand, cigar-stand, barber-shop, billiard-room, and barroom, and, if he should do so, such part of the premises subleased, and especially the bar and billiard rooms, should be kept free from disorder and maintained in an orderly and reputable manner; and where after the commencement of such lease the legislature passed an act prohibiting the sale of alcoholic, spirituous, malt, or intoxicating liquors, and thus the barroom could no longer be used for the purpose of conducting such business, in the absence of any provision in the contract of lease for that purpose the tenant was not entitled to a reduction or proportional abatement of the agreed rental.</p> <p>2. A mere general stipulation in a contract of lease that in ease of difference between the parties it shall be referred to arbitration does not prevent either party from resorting to the courts without such reference.</p>

Equitable petition. Before Judge Hodges. Bibb superior court. January 13, 1908. These cases, with only a few exceptions, the material ones being hereinafter designated, are practically identical in their facts, and will be considered together.