Volume 132 — Georgia Reports

Equitable petition. Before Judge Martin. Dodge superior court. September 14, 1907. Mary Livingston and the other heirs of Alfred Mullís filed their equitable petition against J. D. Taylor as administrator of Lovett Brown, and certain others alleged to be grantees of Brown of certain portions of lot of land number 216 in the 16th district of Dodge county, to recover this lot of land from the defendants, and to have the deeds of the defendants thereto delivered up and canceled.

Action for penalty. Before Judge Brand. Clarke superior court. November 14, 1907. Henry P. Jones, a minor, by next friend, brought an action against the Louisville and Nashville Kailroad Company and the Atlantic Coast Line Eailroad Company, to recover the statutory penalty for a refusal by the defendants to sell a ticket of a connecting railroad company.

<p>Processioning. Eefore Judge Lewis. Jasper superior court. October 23, 1907.</p>

Equitable petition. Before Judge Edwards. Haralson superior court. October 26, 1907. On May 22, 1900, W. II. Wildey, a resident of the State of Illinois, filed his equitable petition in Haralson superior court, against TJ.

<p>1. The evidence in this case was such as to entitle the defendant to have' the law on the subject of voluntary manslaughter given in charge to, the jury.</p> <p>2. Even if the evidence authorized a ehai’ge on the law of confessions, the1 failure to instruct the jury on that subject, in the absence of an appro*priate written request so to do, was no cause for a new trial.</p>

<p>Equitable petition. Before Judge Edwards. Douglas superior court. August 24, 1907.</p>

<p>Exceptions to auditor’s report. Before Judge Edwards. Polk superior court. September 3, 1907.</p>

. Claim. Before Judge Edwards. Douglas superior court. November 29, 1907. An execution dated the 15th of January, 1894, in favor of J. S. James against J. W. Brown and T. R. Whitley, administrators of E. R. Whitley, deceased, which was transferred to T. R. Whitley, was levied on.a certain lot of land on March 6, 1907 (the judgment from which the same had issued having been kept alive by entries which were duly recorded).

<p>Indictment for murder. Before Judge Spence. Turner superior court. October 19, 1908.</p>

Action for damages. Before Judge Brand. Clarke superior court. January 31, 1908. Bishop brought an action for damages against the Seaboard Air-Line Railway, and alleged substantially as follows: He was in their employment as yard conductor or foreman of a. switching crew, and had been for several months. On the day he was injured, he was directed by his superior officer; the agent, to carry some loaded cars to a certain point, and have them placed on the side track.

<p>Indictment for murder. Before Judge Worley. Wilkes superior court. _ November 21, 1908.</p>

Complaint. Before Judge Wright. Floyd superior court. October 16, 1907, Brown brought an action against Bass to recover rent for the Sanford farm in Floyd county, arising under a lease contract between the Union Central Life Insurance Company as lessor, and Bass as lessee.

<p>Action for damages. Before Judge Worrill. Miller superior court. September 13, 1907.</p>

<p>1. The failure of the court to give in charge the legal definition of the term “felony” appearing in Penal Code, §70, which section was given in charge, was not such error as requires a new trial.</p> <p>'2. The evidence was amply sufficient to support the verdict, and there was no error which for any reason assigned requires a new trial.</p>

<p>1. Where a bill of exceptions was duly filed in ample time to be trans. mitted to this court for a hearing- at the next term after the certification thereof, but was mislaid by a copyist in the office of the clerk, and, without fault on the part of plaintiff in error or its counsel, was not promptly transmitted, and as a consequence the record and bill of exceptions arrived after the completion of the circuit to which it belonged, the ease could not be docketed and heard at such term.</p> <p>2. Under the special facts of this ease, upon application, leave is granted to the plaintiff in error or its counsel to have the official copy of the bill of exceptions, of file in the office of the clerk of the superior court, recorded there as an exception pendente, lite.</p>

<p>Complaint. Before" Judge Gober. Eorsyth superior court. •October 19, 19Q7.</p>

<p>This being a suit for a penalty under the Civil Code, § 2244, and' it appear ing from the evidence that the person on whom service of the notice provided for in the Civil Code, §2243, was made was not an agent or officer of the defendant, the court committed no error in awarding a nonsuit.</p>

<p>Equitable petition. Before Judge Littlejohn. Lee superior court. December 19, 1907.</p>

<p>Indictment for murder. Before Judge Worley. Hart superior -court. September 22, 1908.</p> <p>A party of negroes were returning borne late at night, and a 'quarrel arose between Pressley and a woman named Neley Carpenter, during which he slapped or “brushed” her face with his hand. Sherrard told him not to be hitting that woman in the face, or to “ quit knocking that woman.” Pressley asked Sherrard if he had drawn his pistol on Pressley, and Sherrard replied that he had not. According to some testimony, Pressley said, “You are a damned liar; you did.” Several witnesses testified that Sherrard said that whoever said he drew a pistol on ^ Pressley was a God damned liar; and that thereupon Pressley “reached around” Neley Carpenter and shot Sherrard, inflicting a wound from which he afterward died. There was testimony that after being so wounded he fired a shot from his own pistol at Pressley. The accused contended that Sherrard first drew a pistol and threatened to shoot him, before he pulled out his pistol and fired it, which he did without meaning to shoot Sherrard but to keep him from shooting the accused. The jury returned a verdict of guilty, with a recommendation to mercy; and the defendant excepted to the overruling of his motion for a new trial. The grounds of the motion are sufficiently indicated by the headnotes.</p>

<p>Claim. Before Judge Edwards. Douglas superior court. April 6, 1908.</p>

<p>Action of libel. Before Judge Mitchell. Lowndes superior court. November 20, 1907.</p>

<p>Claim. Before Judge Myers. Ware superior court. November 11, 1907.</p>

Action ior damages. Before Judge Holden. Madison superior court. September 28, 1901. Bishop brought an action for damages against the Seaboard AirLine Bailway, on account of a personal injury. A verdict in his favor was rendered. The defendant moved for a new trial, which was denied, and it excepted.

<p>Equitable petition; from Floyd. Motion to dismiss.</p>

<p>In eases of injunctions to stay pending proceedings the petition may be filed in the county where the proceedings are pending, although no defendant against whom substantial relief is prayed resides there, provided no relief is prayed as to matters not included in such litigation.</p> <p>The petition in this ease, if otherwise unobjectionable, prayed for relief as to matters not included in the proceeding sought to be enjoined, and was, therefore, subject to demurrer on the ground of want of jurisdiction.</p>

Petition for injunction, etc. Before Judge Pendleton. Fulton superior Court. March 9, 1908. Justice Lumpkin being disqualified, Judge Worrill, of the Pataula circuit, was designated to sit in his stead.

Motion to set aside judgment. Before Judge Martin. Marion superior court. December 14, 1907. Tbe Buena Vista Loan & Savings Bank obtained, in the county court of Marion county, a judgment against Eli E. Melton, Mathew Melton, and E. T. Melton, upon which judgment a fi. fa. issued on the 26th day of August, 1895. On December 19, 1895, said fi. fa. was transferred to Mrs. Mathew Melton (now Mrs. Caroline Warthen, the plaintiff in error).

<p>Thp Court of Appeals certified to the Supreme Court that a decision of the following questions, within the purview of the-constitutional amendment creating the Court of Appeals, is necessary to the proper determination of the case, to wit:</p> <p>“ 1. Is the act of the General Asssembly, approved December 17, 1901 (Acts 1901, p. 63), as amended by the act approved August 2, 1903 (Acts 1903, p. 91), as to that portion thereof which appears in section 1, to wit, ‘ or to disturb in any wa,j said relation/ Unconstitutional and void, because it violates article-3, section 7, paragraph 8 (Civil Code, § 5771), of the constitution of this State, in that it contains' matter wholly different from that contained in the title, which only prohibits the employment or contracting with a tenant, cropper, or person under contract with another?</p> <p>“'2. Also, is said act as so amended unconstitutional .and void because it violates article 3, section 7, paragraph 8 (Civil Code, § 5771), of the constitution of this State, in that it contains more than one subject-matter, because said act provides for the-criminal prosecution of any person who employs or contracts with, as tenant or cropper, any person under contract with another, and also provides that such party shall he liable in damages to said injured party; ox in that it contains matter different from what is expressed in the title thereof, on the ground that-the title in no way refers to the following wholly different matter embraced in the'body of said act, to wit: ‘Section 2. . . he [the violator of the statute] shall be liable in damages to said alleged injured party, as follows: (1) In case of employer-, and employee, the damages shall not he less than double the. amount of wages or salaiy for the entire period of said contract. (2) In case of landlord and tenant, or of landowner and cropper,, the damages shall not be less than double the annual rental. value of the iancls rented or cropped, said value to be fixed at 1,000 pounds of middling lint cotton to the plough;’ and also the following wholly different matter, in so far as it applies to suits- for damages: ‘ Section 3. That, in addition to other defenses, the following defenses in both civil and criminal cases arising under the provisions of this act shall be good and sufficient, when proved in every item to the satisfaction of the jury, to wit: 1. For the defendant to show that, prior to the alleged violation of this act, said employee, tenant or cropper, as the case may be, had, for good reason and just cause, abandoned his said contract and terminated the relation created thereby. 2. For the defendant to show as a complete defense all of the following facts, to wit: That, prior to employing or otherwise contracting with said employee, tenant, or cropper, he received from said employee, tenant, or cropper an affidavit -to the effect that said employee, tenant, or cropper was not at the time under a prior existing contract, which affidavit defendant shall show to the court, and that immediately on proof that said employee, tenant, or cropper was under contract defendant discharged him, and refused to permit and did not permit him to' remain on his (defendant’s) premises. Whenever, in a suit for the recovery of damages, the defendant shall urge his defense successfully, he shall have judgment against the plaintiff for all costs and reasonable attorney’s fees; and in case of a like result in the prosecution of a criminal case under the provisions of this' act, the defendant shall have a like judgment against the prosecutor. Section 4. That the provisions of this act shall not' apply where the employment given is of such duration and of such nature as to make it certain that it could not result in injury to the plaintiff or prosecutor.’ ”</p>

The Court of Appeals certified for decision of this court the following question: “ Is so much of an act approved August 17, 1907, entitled ‘An act to amend the charter of the City of Macon, so as to authorize and direct the Mayor and Council of the City of Macon to appropriate certain fixed sums of money for the support lof a night school to be kept at one or both of the Macon public libraries on conditions named in the act, and for other purposes/ as provides that the…

<p>1. A municipality supplying its inhabitants with water may adopt reasonable regulations for the collection of water rates. But where provision is made by ordinance for the monthly payment of rates, in advance, by the tenth day of the month, and, on failure to pay, the supply of water to the defaulting consumer shall be disconnected, and no provision is made for any charge additional to the usual and ordinary rate because of such default, the city can not lawfully disconnect the water supply of a consumer who tenders the amount of water rental during the month, after the tenth day, but before the city has actually cut off the water. The provision for disconnecting the supply of a consumer who fails to pay before the tenth of the month is a method of enforcing collection of the rental charge, and not a forfeiture of the consumer’s right to have water on payment of the usual toll.</p> <p>2. The fee charged for turning on water in the ordinance has no reference to the failure of a consumer to pay promptly.</p>

<p>1. By the Civil Code of 1895, § 5536, par. 1, as it stood prior to the act of 1905 (Acts 1905, p. 84), provision was made for bringing up parts of the record to this court in addition to those specified in the bill of exceptions, including evidence contained in a brief of evidence forming part of such record.</p> <p>2. The act of 1905 provided that in any ease in which no brief of evidence is made and filed as a part of the record, if there is omitted from the main or cross-bill of exceptions any material evidence, and the judge trying the case shall inadvertently certify such t>ill of exceptions as true, within twenty days from the service thereof he may make a supplemental certificate of the evidence so omitted, and such supplemental certificate, together with the evidence so certified, shall form a part of the original main or cross-bill of exceptions, and shall be so considered by the Supreme Court, and such supplemental certificate shall be filed' with the clerk of the trial court an'd be immediately transmitted to the Supreme Court as bills of exceptions are transmitted.</p> <p>3. The section of the code referred to in the-first headnote made provision for eases where a brief of the evidence was filed as a part of the record. The act of 1905 provided for supplementing the evidence contained in the bill of exceptions, where material evidence had been omitted. Neither of these laws authorized' the making up of an entirely new brief of evidence, causing it to be filed in the superior court, as a part of the record, aftér the bill of exceptions had been signed and the case had been brought to this court, and the causing of such a brief to be transmitted to this court, as a part of the record, to be taken in lieu of the evidence contained and certified in the bill of exceptions.</p> <p>4. This being a suit for the homicide of a fireman in the employment of a railroad company, under .the evidence introduced it was error to grant a nonsuit.</p>

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

'Equitable petition. Before Judge Reagan. Monroe superior court. November 18, 1907. On January 18, 1876, Peter McMickle executed a deed by which he conveyed certain described property. As the deed was recorded and as it was set out in exhibits in the various proceedings referred to below, it named McMickle as party of the first part and Rufus II. Watson Jr., as party of the second part, and conveyed the land described “unto the said Rufus II.

<p>Complaint. .Before Judge Littlejohn. Webster superior court. November 4, 1907.</p>

<p>1. A deed, the construction of which raises the main question for decision, in this case, conveyed “all the timber which is located on” certain designated lots of land, and in the deed it is recited that “It is understood that the sale of this timber is strictly by the acre and not by the tract, and that the purchase-price agreed upon, which is named' in this deed, is fixed with reference to the number of acres actually contained in these several tracts of timber, and is subject to increase or diminution in accordance with the number of acres which the said several tracts of timber may be ascertained to contain upon actual survey.”' The court below construed this deed to be a conveyance of all the timber on the designated lots of land, and that the warranty was as to the number of acres of land, and not necessarily lands covered with timber. Held, that the proper construction was given to the deed.</p> <p>2. The deed contained a warranty of “a perfect and unincumbered title tor the property conveyed.” The uncontradicted evidence as to one of the lots, to wit, lot No. 164 in the 11th district of formerly Muscogee but now Marion county, showed a paramount outstanding title; and the-court should have so instructed the jury, without leaving that as an open question for them to pass upon among other contested issues in the case, and his failure to do so was error.</p> <p>8. Under the evidence in the ease, the court did not err in submitting to* the jury the question as to whether or not there had been an accord and satisfaction, and as to the ratification, on the part of the plaintiff, of the acts of the party alleged to have been its agent in conducting negotiations leading up to the agreement, which the defendants contended was executed, and amounted to an accord and satisfaction.</p>

<p>Injunction. Before Judge Cann. Chatham superior court. February 4, 1908.</p>

<p>1. There was no error in overruling the demurrer in this ease, based upon the ground that the writing containing the agreement between the plaintiff and the alleged agent of the defendant was not attached to the petition.</p> <p>2. The special demurrer raised valid objections to certain paragraphs of the petition; but this court does not remand the case for error in overruling such demurrer, inasmuch as the defendant, who made the exception as stated in the special demurrer, also raises questions going to the merits of the entire ease ah presented in this record, which are sustained.</p> <p>3. Parol evidence is inadmissible generally to contradict or vary the terms of a valid written instrument; and the application of this rule required the exclusion of the evidence offered by the plaintiff, to the admission of which the defendant excepted.</p>

<p>Injunction; from Jackson. Motion to dismiss the writ of error.</p>

<p>Motion for new trial. Before Judge Wright. Walker superior court. August 19, 1907.</p>

<p>1. An assignment of error upon tlie admission of testimony, where the evidence objected to is neither literally nor substantially set out, can not be considered.</p> <p>2. “An injury to a subterranean supply of water by lawful acts of an adjacent landowner, done within his own premises, is, unless the stream is well defined and its existence known or easily discernible, or unless the injury is caused by malice, damnum absque injuria.”</p> <p>3. It is error to charge the jury, in a suit at the instance of a lower riparian- proprietor to enjoin a licensee of an upper proprietor from the diversion of the water of a stream, that the privileges of such licensee, to whom the upper proprietor has granted a right to convey a part of the water to supply his residence on non-riparian land, are equal and coextensive with those of a riparian proprietor with respect to the use of the water.</p>

Action for damages. Before Judge Little. Chattahoochee superior court. August 26, 1907. S. D. McMurrain brought suit for damages against the Seaboard Air-Line Bailway. Among other things he alleged as follows: The right of way and tracks concerning which this ease arose were originally owned, constructed, and operated by the Columbus Southern Bailway Company, but are now owned and operated by the Seaboard Air-Line Bailway.

<p>• Action for- damages. Before Judge Spence. Decatur superior court. October 5, 1907.</p>

Action for breacli of contract. Before Judge Martin. Pulaski superior court. January 4, 1908. Held: and urged to place it at the plaintiffs’ compress in terms of the contract, the defendant failed and refused to haul said cotton to and from said compress, but by such refusal forced plaintiffs, over their protest, to pay the.

<p>Petition for injunction. Before Judge Parker. Coffee superior court. April 18, 1908.</p>

<p>Action for breach of contract. Before Judge Bawlings. Emanuel superior court. October 25, 1907.</p> <p>On October 11, 1905, Allen Jones executed tbe following instrument: “This is to show that I have sold to A. A. Moore and J. L. Herrington five hundred picked pines, to be cut anywhere on my land, for $2,500, to be paid as follows: $500 cash, then said Moore and Herrington can cut seventy-five pines, and then pay $500 cash and then cut seventy-five more pines, and so on until they pay the $2,500, and then they can cut the remainder of the five hundred pines. . . I further agree to give Moore and Herrington twelve months to cut said five hundred pines.” On May 8, 1906, Moore and Herrington transferred and assigned to S. J. Herrington, the plaintiff, all their right, title, and interest in and to the foregoing instrument and the pine trees therein mentioned, with all other rights and privileges they had by virtue of said instrument. On March 29, 1907, this suit was filed against Jones, with the following among other allegations: By virtue of the contract the plaintiff is the owner of 72 picked pine trees standing on the land of Jones. After the date of the contract the plaintiff purchased the sawmill business of Moore and Herring-ton, with all their rights to timber by lease or otherwise, and thus became the owner of their interest in the 72 trees. Before completing the purchase, the plaintiff went with Moore to Jones, and it was agreed between all the parties that 115 choice pine trees remained to be cut, that Moore and Herrington had cut and carried away 385 and had paid for 400, — Jones expressly admitting these facts, and further stating that plaintiff could cut and carry away the additional 100 pines as he paid for them. Subsequently he paid Jones $140, and at a later date $60, and cut and carried away 43 pines, leaving 72 remaining to be cut under the contract. At various and divers times he has tendered to Jones $300, the balance due under the contract, which tender is continuing. Although he has in good faith endeavored to perform his part of the contract, yet Jones and. his agents have by force, threats, and intimidation prevented him and his laborers from cutting and carrying away the 72 pines. Belying on the admissions of Jones, the plaintiff purchased the sawmill outfit of Moore & Herrington, investing about $2,000 therein; and later, when he and his employees were so prevented by Jones and his agents from cutting and carrying away said trees, he was compelled to suspend the operation of his mill; and when he attempted, on October 6, 1906, to again cut and carry away said timber, Jones and his agents again prevented him and his employees from so doing, by the means before mentioned. The remaining allegations set forth the damages sustained by the plaintiff in the loss of profits that he would have made from sawing and selling the timber. On demurrer the action was dismissed; one of the grounds of demurrer being that indicated in the headnote.</p>

<p>1. A motion for a continuance is addressed to the sound discretion of the court, and his judgment overruling the motion will not be disturbed unless it appears that there was a manifest abuse of his discretion.</p> <p>2. Rulings made by a trial court upon questions made by objection to the pleadings of the parties furnish no proper ground of a motion for a new trial.</p> <p>3. The court below did not err in repelling the evidence upon the exclusion of which error is assigned in the motion for new trial.</p> <p>¿. The verdict rendered was required by the evidence, and the court did not err in directing the jury to return the same. „</p> <p>5. The newly discovered evidence, upon which the amended motion is based, is not considered; because the affidavits of the movant and his counsel are not properly identified, nor are they embodied or referred to in the motion, nor attached thereto as an exhibit.</p>

<p>Action for damages. Before Judge Lewis. Jasper superior court. September 25, 1907.</p> <p>Georgia Ann Wilson filed suit against the Central of Georgia Bailway Company, and alleged, that on the 20th day of Mar.ch, 1902, the defendant carelessly and negligently set on fire the grass, weeds, and other combustible matter along its right of way, which fire was communicated to weeds and grass surrounding the house in which she lived; that because of the rapid approach of the fire towards her house, and the peril -in which it was placed, she, in order to prevent the catching on fire of her house, endeavored to extinguish the fire, and in so doing her clothing caught on fire and she was severely burned and has been confined to her bed continuously since. The sixth paragraph of the petition alleges, that “petitioner has been unable to perform any labor in support of herself and three small children, her lost time now amounting to one month, and that petitioner will be unable to perform any kind of labor for months to come, if, indeed, she ever shall be able to earn a living by manual labor; and this is pleaded as an element of her loss and damage.” She alleges, that the damage was not the result of any carelessness or negligence on her part, but from the negligence and carelessness of the defendant and its employees, by the running of a locomotive so defectively equipped that sparks therefrom set fire to its right of way, as aforesaid; “and the operating of such defectively equipped locomotive is alleged as one of the acts of negligence causing said loss and damage to petitioner;” that the defendant company was guilty of gross negligence in permitting grass, weeds, and other combustible matter to accumulate along its right of way in such quantities as to communicate fire set out on its right of way to adjoining property. In the eleventh paragraph it is alleged, “that said . . railway company and its employees were guilty of gross negligence, in that, after said fire had been set in the manner hereinbefore set out, no effort was made by said company, or its employees, to extinguish the same or to prevent its spread to adjacent property, but on the contrary, so far as said company or its employees were concerned, said fire was allowed to take such course as it and the strong March wind, which was blowing at the time, might select,' and travel as far as the two elements might find material to feed upon.” She lays her damage at $5,000.</p> <p>. The defendant demurred on the following grounds: (1) The petition does not set forth any cause of action against the defendant. (2) There is nothing in the allegations which entitles the plaintiff to recover damages against the defendant. (3) The injuries were not caused by the negligence of the defendant. (4) The plaintiff’s own voluntary act was the proximate cause of the injury, and not the negligence of the defendant. (5) Demurring specially to the sixth paragraph, defendant “says that the allegations in the same as to the plaintiff’s three small children are irrelevant to the issue made by the petition, and the plaintiff is not entitled to recover any damages on account of the same, and the same are insufficient in law. (6) Demurring specially to the eleventh paragraph, defendant “says that the same is insufficient in law, nor do the facts therein stated show any neglect of any obligation legally imposed on this defendant, or the violation of any duty to the plaintiff,” and that it “does not show that the defendant or its employees knew of the fire, or had any opportunity of knowing, nor does the same in any way charge any such facts as would show the violation of afiy duty by this defendant.” The demurrer was sustained “on each of the grounds taken;” .and error is assigned upon this ruling.</p>

<p>Action for damages. Before Judge. Whipple. Ben Hill superior court. October 21, 1907.</p> <p>S. P. Williams brought suit against the Garbutt Lumber Company, alleging in substance as follows: On March 23, 1906, the plaintiff was in the employment of the defendant, his duties being to cut logs which were to be used at the sawmill of defendant, and which it was customary to transport by hauling them to the defendant company’s tramroad and loading them on trucks which were drawn by a steam-engine. The loading of the logs would sometimes require the work of more men than were engaged on the cars or trucks, and it was a part of the plaintiff’s duties, whenever called upon to do so, to leave his business of sawing logs and ■assist in loading them for transportation. He was subject to the orders of the woodman of the defendant in this respect. The usual method employed for getting the logs on the trucks was this: The logs would be hauled up and placed upon skids, and, when readjr to be loaded upon trucks, laborers would slide or push the logs along these skids on what were called “jumpers,” which were ■other logs or timbers running from the skids in an inclined direction upward to about the level of the top of the trucks. A long ■chain would be put around the logs, and mules would be hitched to it, and by driving the mules forward the logs would be pulled up the inclined plane and carried upon the trucks of the logging-train. While they were thus being loaded, it was necessary that the logs should be handled by laborers using “cant-hooks” for the purpose of turning them or moving them, holding them in proper position, and otherwise working with them to get them upon the trucks. On the date named the plaintiff and other laborers were called to assist in loading logs in the manner mentioned. They proceeded to do the loading in the usual way. Nick Williams, who was a laborer of the same kind as the plaintiff and engaged in the same work, was assisting in carrying the logs up the “jumpers” in the manner described. Plaintiff, having aided him in getting the logs started up the “jumpers” toward the trucks, turned for the purpose of starting the next log, as was necessary and proper to be done, in order to load the logs quickly, as it was their duty to do. Nick Williams placed the cant-hook which he had under one end of the log which was then on its way up the “jumpers,” for the purpose of keeping it from slipping back. This was the proper way to do in carrying out that work. The cant-hook which Nick Williams was using was defective, .the wooden part of it being so badly worn that the metal hook would not hold properly. By reason of such defective condition, the pressure of the log upon the cant-hook caused it to slip out of place and fail to hold the log as it should have done and would have done save for the defect. This caused the log to slip or roll down the “jumper” near which the plaintiff was standing, engaged in his duty of bringing forward the next log. The log thus sliding or rolling struck the plaintiff on the leg, breaking it and causing a serious injury (which was described). It was the duty of the defendant to furnish to its laborers safe tools and appliances for their work, and it was negligent in furnishing a defective cant-hook for that purpose. This duty rested upon the defendant corporation, and the failure to discharge it was not due to any fault on the part of the plaintiff or any fellow-servant. Plaintiff was not negligent, but used all reasonable care and diligence in the performance of his duty, and the injury was not due to the negligence of any fellow-servant.</p> <p>By amendment it was alleged, in substance, as follows: The cant-hook used by Nick Williams had become, from long use, somewhat-worn at the point, and was not sharp enough to catch and hold the log upon which it was being used. The defects in it, as set out here and in the original petition, were not perceptible unless closely examined, and, it -being kept in the custody of the Garbutt Lumber Companj^ and not being regularly used or kept by Nick Williams, he had no occasion to inspect or examine it carefully. In fact he did not do so, but took it and proceeded immediately to use it, relying upon it, thus furnished to him, as being in proper and safe condition for the work to be done. At the time of the injury to the plaintiff, Nick Williams was a boy about sixteen • years of age, and while physically able to perform the portion of the work expected of him, he had not reached the age of discretion and judgment at which it was proper to entrust him with the use of such a tool as a cant-hook, unless it was carefully examined and inspected by the Garbutt Lumber Company, or its agent employed for that purpose, to see that the cant-hook was a safe one for the work to be done with it; or unless the attention of Nick Williams was specially called to the danger of handling and using a cant-hoolc that might not be in a perfect condition. The cant-hooks used by the laborers were all carried on the logging-train of the defendant and were kept there or at the mill, at a distance of several miles from the point where the plaintiff and Nick Williams were engaged in cutting logs. Nick Williams and the plaintiff were engaged in an entirely different department of work from that to which was entrusted the furnishing and taking care of the cant-hooks. Nick Williams did not know of the defective condition of the cant-hook used by him, nor did the plaintiff. When it became necessary to load the logging-train, the plaintiff, Nick Williams, and other laborers would leave their axes with which they were cutting logs and go to the logging-train, where each laborer would take for his use any cant-hook accessible, no particular one being assigned to any laborer. Immediately upon taking up the cant-hooks the plaintiff and other laborers would load the logs as they did on this occasion. Therefore" they had no time or opportunity to inspect the cant-hooks. Neither the plaintiff nor Nick Williams had a reasonable opportunity to know of the unsafe condition of the cant-hook; but the Garbutt Lumber Company did have knowledge of its unsafe condition, or ought to have had by the exercise of ordinary diligence.</p> <p>The defendant demurred to the petition as amended. The court sustained the demurrer, and the plaintiff excepted.</p>

<p>1. After the judge had given in charge to the jury the provisions of law as contained in the Penal Code, touching the right of an accused person to make a statement not under oath, that it should have such force only as the jury might think right to give it, and that they might believe it in preference to the sworn testimony in the case, there was no error requiring a reversal in adding:' “If you believe it, then you may accept the unsworn statement of the defendant in preference to the sworn testimony, not capriciously or arbitrarily, but in search of the truth. There is no presumption attached to the defendant’s statement, no presumption that it is true, nor any presumption that it is not true. It goes to you without a presumption either for or against it.”</p> <p>(a) The better practice in charging on the subject of the prisoner’s statement is to instruct the jury in the language of the Penal Code, § 1010, without adding thereto comments or explanations.</p> <p>2. Where on the trial of a criminal case the rule for the sequestration of witnesses has been invoked, the fact that one of the witnesses for the State, after testifying, has remained in the court-room and heard a portion of the testimony of other witnesses and' the statement of the accused does not render him incompetent as a matter of law when offered to testify in rebuttal; and the refusal of the judge to exclude him from testifying will not require a new trial.</p> <p>(a) Upon objection being made to the introduction of the witness in rebuttal, there was no error on the part of the judge in saying: “It does not disqualify the witness. It goes to his credit. I will let you examine him. When the rule is invoked' it must be enforced.”</p> <p>3. One ground of the motion for new trial was based on newly discovered evidence; but the evidence so discovered was mere hearsay, and there was no sufficient showing as to diligence in ascertaining the facts referred to in it, nor of the good character of the newly discovered- witness. It was therefore not error to refuse a new trial on such ground.</p> <p>4. The verdict was supported by evidence.</p>

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

<p>Complaint. Before Judge Worrill. Mitchell superior court. October 23, 1907.</p> <p>Fields brought an action against Cox and Willis for an alleged breach of a written contract, a copy of which was attached to the petition. This contract, the subject-matter of which was the sale by Cox and the purchase by Fields of certain described cattle which Cox was to deliver to Fields in the future, is fully set forth in 123 Ga. 272-274, the case being then before this court upon a Yrit of error sued out by Fields, complaining of the dismissal of the petition, at the appearance term, upon a demurrer thereto filed by Willis. The contract was signed by Fields and Cox as principals, and, as this court held when the ease was here before, it was signed by Willis as surety. It contained the following stipulations: “That said party of the first part [Fields] agrees . . to purchase from said party of the second part [Cox] the following described cattle, to wit: 150 two-year old steers at $6.50 per head; 150 one-year old steers at $5.50 per head: 150 two-year old heifers at $6.50 per head; 150 one-year old heifers at $5.50 per head. And all of said cattle to be good, straight, smooth, merchantable, and to be of full age. . . Said cattle are to be branded thus: S-F on left hip. Bulls are not to exceed 25% in this contract, and known as the S stock, and ranging in Mitchell, Decatur, and Gadsden counties, State of Ga.' and Fla.; said cattle’ to be passed upon and graded in Bainbridge, Camilla, and Faceville, State of Ga., and there counted. . . Said cattle are to be delivered on or before the 1st day of June, 1898, free on board ears as above agreed, and to be paid for at time of delivery. In order to secure and guarantee to party of second part, and „to make the contract more secure and binding on both parties, the party of the first part agrees to pay and advance as part payment the sum of $600.00, the receipt of which is hereby acknowledged, which said sum of money, or any other sums of money so advanced or may hereafter be advanced, is part payment on said cattle.” The “parties further agree that damages in this matter, being uncertain and not capable of being understood or ascertained by any satisfactory or known rule, the uncertainty being in the nature of the subject itself and the particular circumstances of the transaction, has been the subject of actual and fair calculation and adjustment between the parties; it is therefore agreed upon by all parties hereto that the sum of one dollar per head shall be the fixed, liquidated, stipulated, and stated damages herein, and settled upon by the parties hereunto, and said sum to be paid by the parties hereto in default to the other, upon failure of the party in default to comply with this agreement in whole or in part.”</p> <p>Cox filed no.defense to the suit. Willis pleaded a discharge as surety, in consequence of a subsequent parol agreement between Fields and Cox, which he alleged was entered into without his consent. Upon the trial under review the court directed a verdict for the plaintiff against the defendants for the sum of $327 principal, and interest at seven per cent, from the first of June, 1898, the date on or before which the contract required the cattle to be delivered; to which direction Willis excepted.</p> <p>It appeared from the evidence that on the 28th of May, 1898, Cox had delivered to Fields 273 head of cattle, leaving 327 of the' 600 head still to be delivered, and that on that day Cox gave to Fields his due-bill for $308, the difference between the advances Fields had made to Cox for cattle and the value of the cattle, at the stipulated prices, that had been delivered by Cox to Fields up to that time. The substance of Cox’s testimony was: He then desired to deliver to Fields the balance of the cattle according to the contract, and it was possible for him to do so within the time therein stipulated; that it was greatly to his advantage to carry out the contract, and he desired Fields, who lived in Texas, but was then in Georgia, to wait until June the first and receive the balance of the cattle, but Fields desired to return to Texas at once, claiming that he could not remain in Georgia. They thereupon entered into a parol agreement whereby Cox Ivas to deliver to Fields 100 head of cattle, one half of which number were to be two years old and the others one year old, at the same prices, respectively, as those stipulated in the original contract; and this agreement was to take the place of the original one. Willis was not present when this parol agreement was entered into. Willis also testified that he was not present when this parol agreement was made, and that he had no knowledge of it and never agreed to it. In reference to this alleged parol agreement between Fields and Cox, Jones, a witness introduced by the plaintiff, testified: “Mr. Fields seemed very much upset about not getting the cattle, but after while they agreed in some way that Mr. Cox was to furnish 100 yearlings some time in June, and I was to receive them as Mr. Fields’ agent. I don’t know how many more cattle Cox was due Fields at that time. I never heard anything said about any new cattle or different cattle. He was just to deliver 100 head of yearlings some time in June, and I was to receive them. It seemed that Mr. Cox had got $308 more than Mr. Fields had received cattle for. . . The understanding that we all left with was that Cox was to deliver 100 more yearlings, one-year old and two-year old heifers, 50 one-year olds and 50 two-year olds — I am not positive as to that, but if they were not to be heifers, they were not to be over 25 per cent, bulls — were to be generally heifers.” Fields testified: “J. M. Cox only delivered to me-273 head of cattle. . . When I went to receive the 273 head of cattle, they were not even collected. I rode with Mr. Cox two or three days helping him to collect them. I was always ready and willing to carry out my part of the contract. I never at any time agreed with J. M. Cox, or any one else, to cancel, set aside, or annul the contract. I always insisted on standing to it. I never at any time made an agreement with said Cox, or any one else, to take the place of the original contract. . . But at the request of both Cox and . . Willis I did agree with them, on the 26th day of May, . . 1898, that I would accept 100 yearlings on the original contract if they were delivered by the 15th day of June, 1898, but they did not deliver them. . . Cox did deliver to me 273 head of cattle. They were delivered at four different places, at Camilla on May 27th, at Pelham on May 27th, at Whigham May 28th, and at Climax on May 28th, 1898. I advanced Cox $600 when the contract was entered into.”</p>

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

<p>Equitable petition. Before Judge Kimsey. Lumpkin superior court. October 22, 1907.</p> <p>William B. Tate filed an equitable petition in the superior court of Lumpkin county against Barilla D. Satterfield of that county, and seventy-four other persons, some of whom resided in Lumpkin county, others elsewhere in this State, and still others beyond the limits of the State. The substance of the petition, so far as now material, was: Stephen Griffeth, late of Pickens county, Ga., died on November 11, 1873, testate, seized and possessed of lots of land 109 and 110 in the fourth district and second section of that county. His will was duly probated, and William Tate, the named executor, qualified thereunder. The following are the material parts thereof: “Item 3rd. I give and bequeath and devise to Lina and my daughter, Amanda Griffeth, persons of color, who were formerly my faithful domestic servants, lots of land number one hundred and nine (109), one hundred and ten (110), and-the east half of one hundred and twelve (112), all of said lots of land situate, lying, and being in the fourth (4th) district and second (2nd) section of said Pickens county, each lot containing one hundred and sixty acres, more or less, known as my home place, together with all the appurtenances belonging to the same, and also all of my personal property. . . Item 4th. I desire and direct my executor, . . to hold the lands named in item three until the death of Lina, unless from some unseen cause to me it should become necessary to. sell some portion of it, in which event he is to sell only such portion of it as Lina and Amanda may consent to, and at her, Lina’s, death the land together with all the property not otherwise disposed of, of every description, during Lina’s lifetime, named in said third item, to go to and vest in my daughter, Amanda Griffeth, daughter of Lina. But I desire and direct that my executor not to rent or control the lands, nor other property given in the above items, only to keep and sell such as may be necessary by and with the advice of Amanda and Lina. It being my desire and wish that the lands be a home for Amanda and Lina to control, rent, and enjoy the profits of, together with all other property during Lina’s lifetime, and at her death I direct my executor to turn over the land, together with all other property, to my said daughter Amanda unreservedly, to do as she may think proper with. Item 6th. I desire and direct that all the property given in this will to my said daughter, Amanda Griffeth, is given to her free from contracts, control, and sale of any husband that she marries, but is to be her sole and separate property; and if Lina and Amanda both die leaving no child or children nor grandchildren, then in -that event the property not disposed of in their lifetime reverts to those who now by law would be entitled to the same if I had made no will. Item 7th. I desire and direct that my executor, . . not to have any appraisement of my estate nor to make annual returns to the ordinary, . . and that he make all sales by the advice and consent of Lina and Amanda, without order of the ordinary and at private sale, that may become necessary, and, after paying expenses, etc., to pay over the proceeds to Lina and Amanda, and to the other if one be dead. . . ”</p> <p>On May 27, 1887, Lina and Amanda conveyed lots 109 and 110 to the petitioner by an ordinary warranty deed, making no reference therein to the will of Stephen Griffeth, to the executor thereof, or to the power given by it to the executor to sell the land. Since the date of such deed petitioner has been in the open, notorious, continuous, and peaceable possession of such lots of land, under claim of right. The executor was fully cognizant of and consented to the sale of the lands conveyed to petitioner by said deed, and petitioner purchased said lands from the executor, who acted in the premises on the authority of and by and with the consent and advice of said Lina and Amanda, said sale being made in pursuance of and in conformity with the provisions of said will. Lina and Amanda, as the lawful owners of said lands, had a right in and of themselves to convey the same, and said deed conveyed a full title to your petitioner; but the defendants named claim to own an interest in said lands by virtue of the sixth item of the will. Lina Griffeth had no child living then, save Amanda, and has had no children since, and possibility of further issue of - the said Lina is extinct, she being now more than eighty years old; and since the execution of the deed to your petitioner Amanda has died without issue; and the said sixth item of the will could have application only to property devised to Amanda and Lina which was not disposed of by them in manner and form hereinbefore stated. The claim of defendants operates as a elond upon the title of petitioner, and, while without foundation, operates to his prejudice and embarrassment in the perfect ownership of the land. The prayers were, that the defendants be required to set up in the proceeding their claims to the land in question, if they have any; that a decree be granted, forever quieting and establishing the title of petitioner to such lands, and declaring him to be the owner thereof in fee simple; for injunction, general relief, and process.</p> <p>Some of the defendants failed to appear. The others demurred to the petition, and filed answers. Among the grounds of demurrer were that the petition showed no title to the fee of the land in the petitioner, and that no equitable right against the defendants was set forth. There was also a special ground of demurrer, in response to which the plaintiff amended as follows: The purchase of said lands was by a parol agreement with the executor, consented to and concurred in by Lina and Amanda Griffeth, and the deed from Lina and Amanda was executed at the instance and direction of the executor in fulfillment of the parol purchase. The agreement was for the purchase of the fee-simple title, and the deed was intended to convey the same, and was believed by all the parties to be effectual so to do under the provisions of said will. Petitioner is in possession of the land, and can bring no action at law to. assert and quiet his title; the claims of defendants under the will may be used vexatiously and injuriously against him, impairing the marketability of his title; and he 'has reason to apprehend that some of the evidence upon which he relies to impeach the claims of defendants and uphold his own title may be impaired and lost by lapse of time. He paid the purchase-money named in said deed, and the same went to the uses directed in the will; and if his deed is not in form a proper execution of the power of disposition given in the will, he is at least invested with a perfect equity in the land (possession having been at once given him by reason of said purchase and payment). The executor, William Tate, is dead. After purchasing and paying for the land, petitioner was put in possession of it by the executor and by Lina and Amanda Griffeth; and his possession and control has been absolute. The executor lived ten years after the making of the sale, without ever questioning the Tight and title of plaintiff in the property; and Lina, who is still in life, and Amanda, who died on July 11, 1892, aged 58 years, also allowed him to remain in absolute, adverse, and peaceable possession.</p> <p>The court overruled all the demurrers, and, after hearing the evidence submitted (the defendants offering no evidence), directed a verdict in favor of the petitioner against all the defendants, and entered thereon a , decree that title to the two lots of land is vested in fee simple in the petitioner, and that all claims of the defendants thereto be declared to be void and the same be removed as a cloud upon petitioner’s title, and the defendants be perpetually enjoined from asserting any claim to the'lands. Defendants excepted.</p>

<p>1. A ruling of the court in sustaining or overruling a demurrer, and in allowing or disallowing an amendment to pleading, can not be made the ground of a motion for a new trial; but direct exceptions should be filed to such ruling, if a review of it is to be had.</p> <p>2. Where a petition was filed for specific performance of an alleged contract for the sale of land, claimed to be evidenced by a writing copied in the petition, to which a demurrer was filed, asserting that such contract was within the statute of frauds on specified grounds, and the court passed an order overruling such demurrer; held, that while such order stood unreversed it was proper for the court, on the trial, to overrule objections of the defendant to the admission of such writing in evidence, when such objections were on the same grounds on which the demurrer was based.</p> <p>3. When one of the questions to be passed on by a jury is whether or not, at the time one of the parties to the ease signed a writing, he was deprived of reason on account of being intoxicated; held: (a) That ,the acts and sayings of such party immediately before and after such time are admissible to illustrate such question. (6) That evidence that such party generally talked incoherently, had no consecutive thought, and was without business capacity while under the influence of whisky, was not admissible to be considered in determining such question.</p> <p>4. Where a writing signed by an owner of land purported to evidence a contract of sale thereof, acknowledged receipt of part of the purchase-money, and specified no time when the balance thereof was to be paid; held: (ft)The legal import of such contract was that such balance was to be paid presently. (6) Evidence of a prior or , contemporaneous parol agreement that such balance was to be paid at a subsequent definite time was not admissible to vary the legal import of the writing, that such payment was to be made presently.</p> <p>5. Where a writing signed by an owner of land purported to evidence a contract of sale thereof, acknowledged receipt of part of the purchase-money, and specified no time when the balance was to be paid, the legal import of such contract was that the balance was to be paid presently, and a mere parol agreement between , the parties to the writing, made subsequently to its execution and delivery, fixing a subsequent specific time for the balance to be paid, was not admissible to illustrate the time within which the balance was to be paid.</p> <p>6. “A contract which must, under the statute of frauds, be in writing, and which, accordingly, is .put in writing and duly executed, can not be subsequently modified by a parol agreement.”</p> <p>7. “Mere non-action is not performance, either partial or complete, and will not, therefore, take a parol contract out of the statute of frauds.”</p> <p>8. The language used in the charge, quoted in the 8th division of the opinion, was not error requiring a new trial.</p> <p>9. An assignment of error complaining of the admission or rejection of testimony over objections will not be considered when it does not appear that any objection ®bs made at the time the testimony was offered.</p>

Complaint. Before Judge Martin. Pulaski superior court. June 24, 1908. Wbigham brought an action against Fountain, as surviving partner of Fountain & Hendley.

<p>1. Where a deed under seal was made conveying title in order to secure an indebtedness represented by a promissory note, under the Civil Code, §§2771 et seq., and on its face it recited the debt and the purpose to secure it, although suit on the note became barred by the statute of limitations, the creditor could foreclose the deed as an equitable mortgage within twenty years from its execution.</p> <p>2. While an instruction to the jury “that the presumption of law is against usury, and the burden would then be upon the defendant in this ease, who sets up usury as a defense, to establish the existence of usury in the contract to your satisfaction,” was not entirely apt or exact in expression, yet, when taken in connection with the entire •charge, it does not require a reversal.</p> <p>3. There was no error in overruling the motion for a new trial. /■</p>

Quo warranto. Before Judge Parker. Camden superior court. December 14, 1908. J. M. Long and others made application for leave to file an information in the nature of a quo warranto against D. P. Bose, W. H. Mullin, and J. B. Bachlott, in order to inquire into their right to hold the offices of mayor and aldermen of the City of St. Marys.

<p>1. A borrower secured his note for the loan of money by deed to land, and upon default in payment at maturity the lender sued the note to judgment; upon which judgment an execution issued, and was levied on the land without the lender having first reconveyed it to the borrower. At this sale the lender purchased the land, and a deed was made to him by the sheriff. Subsequently the lender, who had not previously conveyed the land to any one, after having made a deed to the defendant in execution, and after having had the same duly recorded, caused the execution again to be levied on the land, and the land sold' thereunder by the sheriff. Held, (1) That the first sale was illegal and void; (2) that the second sale was valid. The case of Napier v. Saulsbury, 63 Ga. 477, distinguished.</p> <p>2. Where the lender went into possession under the first sale, he would be accountable to the borrower for the rents, issues, and profits intermediate of the two sales; hut if such rents and profits were insufficient to discharge the judgment, the resale of the property would not be invalid on this account, even as to the lender.</p>

<p>This being a suit for recovery of damages on account of personal injuries, and' it appearing from the evidence for the plaintiff that his opportunities of discovering the defective condition of the machine, in the operation of which the injuries complained of were received, were equal or superior to those of-the master (the defendant), and that he had in fact observed the defects, recovery by the plaintiff would have been unauthorized by the evidence, and the court did not err in granting a nonsuit.</p>

<p>1. Under the ruling in Kirlclamd v. Atlantic <& Birmingham By. Go., 126 Ga. 246 (55 S. E. 23) the assignment of error, being upon an order refusing a temporary injunction, was sufficiently specific. w</p> <p>2. As to a useful and per se perfectly lawful occupation, such as the keeping of a restaurant.or lunch counter, the City of Atlanta has no authority to arbitrarily revoke a business license which it has granted to the proprietor thereof.</p> <p>3. Jurisdiction to abate- nuisances existing in the cities of this State having a population of 20,000 or more, by a summary proceeding, except as to those things which are by the common or statute law declared to be nuisances per se or which are in their very nature palpably and indisputably such, resides alone in the police-court of the city where it is claimed that such nuisance exists.</p> <p>4. The municipal council of Atlanta has no authority by resolution to declare a business which is useful and lawful per se to be a nuisance on account of the manner in which it is conducted, and thereupon to revoke the business license which has been granted to the proprietor.</p> <p>5. The thing sought to be enjoined was not a mere past transaction, but was of such character as rendered injunction an appropriate remedy.</p> <p>6. Under the pleadings and evidence the judge should have enjoined the defendants from interfering with the business of the plaintiff under pretense of authority derived from the ineffectual attempt to revoke his licenses. '</p>

Alimony. Before Judge Ellis. Fulton superior court. October 26, 1908. Elizabeth Stalvey filed, a petition against G. M. Stalvey and the Fourth National Bank, alleging, in brief, as follows: She was married to Stalvey in 1903, and two children were born to them. She has been informed and believes that Stalvey recently married another woman in South Carolina, and is now living with her.

<p>1. Where, on a proceeding by writ of habeas corpus to determine the custody of a child, certain affidavits were offered, and objection was made to them as a whole on the ground that they were irrelevant, hearsay, and stated opinions instead of facts, and many of the statements contained in them were not subject to such objection, there was no error in overruling it.</p> <p>2. Where the writ of habeas corpus is used as a means of determining the custody of an infant, the better practice is to hear evidence vivavoce, or taken by deposition or interrogations, after notice and with opportunity for cross-examination. But this is not an absolute and inflexible rule, and the presiding judge is vested with discretion as to admitting affidavits under the circumstances of a particular case which render'it necessary or proper.</p> <p>3. On the merits of this case, there was no error in awarding the custody of the child to the father instead of to the maternal grandmother.</p>

<p>Injunction. Before Judge Brand. Banks superior court. June 20, 1908.</p>

<p>Injunction. Before Judge Kimsey. Habersham superior court. December 30, 1908.</p> <p>Mrs. Louisa P. Minis was the owner of a tract of land called the “Rockwood Place,” where she had a summer home. On it was. a residence, a gardener’s house, servants’ quarters, stables, a greenhouse, barn, and other improvements suitable for a well-furnished and convenient summer home. J. F. Minis, her husband, acted as. her agent and representative in connection with the property. He-employed Mackenzie under the following written agreement:</p> <p>“Mr. J. F. Minis agrees to employ John Mackenzie as his head gardener to take charge of his place at Clarkesville, Habersham County, Georgia. Mackenzie pays his way and that of his niece-to New York, the passage money to be refunded him on his arrival. Mr. Minis pays the railroad fare of Mackenzie and niece from New York to Clarkesville* The engagement is to be at least for three years if Mackenzie proves himself competent and satisfactory. Mr. J. F. Minis agrees to pay Mackenzie the first year eighty pounds, per year, the second year one hundred pounds per year, third year one hundred and thirty pounds per year; to provide him a house-near Mr. Minis’s residence free, and fuel (wood) and vegetables, free; also milk as long as the cows are in milk, Mackenzie looking-out that all the cows are not dry at the same time; Mackenzie agreeing to look carefully after the cows, fruit-trees, flowers, grapes and greenhouses, and perform all duties incumbent-on a first-class gardener and manager, to Mr. Min'is’s satisfaction, his niece to look after the milk and butter whenever Mr. [and] Mrs. Minis are absent. London, June 26th, 1906.</p> <p>•[Signed] J. F. Minis</p> <p>[Signed] John Mackenzie.”</p> <p>Mackenzie went upon the place under this contract, and commenced work. In December, 1908, Minis gave to him the following written notice of discharge:</p> <p>“Habersham County, Georgia. To John Mackenzie: You are hereby notified that you are this day discharged from my employment; and you are directed to remove yourself, together with all your effects, from my premises and that of Mrs. L. P. Minis,, the farm known as Bockwood Place, not later than six o’clock p. m. on the 8th day of December, 1908. This- December, 1908.</p> <p>[Signed] J. F. Minis,</p> <p>For himself and as agent for Mrs. L. P. Minis.”</p> <p>Mackenzie claimed that there was no right to discharge him on the part of Minis or his wife, and continued to live in the house on the land where he had been prior to the discharge, and to go upon the land. Mr. and Mrs. Minis filed an equitable petition, alleging the foregoing facts, and also, in substance, as follows: Mackenzie had not proved himself satisfactory, and had not performed the duties incumbent upon him under the agreement,, to the satisfaction of Minis or of his wife. They had the right to discharge him and had done so. He refused to leave the place, taking his belongings with him, and persisted in remaining on it, in walking over it, and in using it just as if he had a right to be there, insisting that he could not -be discharged until three years after the date of the contract. His relations with them had become such that it was impossible to have anything further to do with him, or to have him on the place; and it was necessary for them to employ another gardener, in order to provide for the crops etc., for the coming year. They needed the' gardener’s house, and could not get another gardener as long as Mackenzie insisted upon remaining on the place and in possession of the house. There was a great deal of personal property on the place, in addition to the live stock, and the vegetables, flowers, fruit, garden, and the place generally needed attention. Mackenzie was no longer in their employment, and his presence made it impossible for them to enjoy their home or prepare it for their use in the summer time, or to secure a gardener. They were unwilling to leave their property in possession of Mackenzie or subject to his control. He was insolvent and unable to respond in damages, if he should be sued; and the damages would be irreparable, being of such special and peculiar character that they could not be determined or compensated in money. Mackenzie was remaining on the property and using it without their consent and in defiance of their rights and demands. They had not violated the contract; bnt if so, they were amply able to respond in damages. They prayed that Mackenzie, “his agents and representatives, be enjoined and restrained from remaining on the premises hereinbefore mentioned, and from keeping his property or effects thereon, and from using the same in any way, or walking over or on the same, and from doing anything in defiance or in violation of the rights of your petitioners as owners and possessors of said property.”</p> <p>The defendant, in his answer, admitted that Minis was the agent of his wife, and that Mrs. Minis herself exercised some acts of control, that the place was improved as plaintiffs alleged, and that the contract was made as set out above. He denied the other allegations. By way of cross-action, he alleged that the plaintiffs were indebted to him in the sum of $462.56, on which were allowed credits for certain articles of personalty, such as shingles, blocks, old fence-posts, old lumber, window sash, barbed wire, piping, and guttering, aggregating $16.15, and leaving a balance of $446.41, for which he prayed judgment.</p> <p>On the hearing the presiding judge granted an injunction providing that the defendant, “his servants, agents, and representatives be and they are hereby restrained and enjoined from remaining on the premises mentioned in the petition or any part thereof, and from going on the same and keeping their goods thereon, and from interfering with the possession or rights of plaintiffs as to said premises.” The defendant excepted.</p>

<p>Injunction. Before Judge,Wright. Floyd superior court. January 25, 1909.</p>

<p>Indictment for murder. Before Judge Rawlings. Jenkins superior court. September l4, 1908.</p>

<p>Indictment for murder. Before Judge Littlejohn. Macon su-r perior court. December 24, 1908.</p>

<p>Indictment for murder. Before Judge Worrill. Clay superior court. January 15, 1909.</p>

<p>Petition for injunction. Before Judge Mitchell. Lowndes superior court. July 25, 1908.</p> <p>The plaintiff in error was summoned to show cause, in the may- or’s court of Valdosta, why she should not be punished for violating a sanitary ordinance by not making sewer connections to her house in that city. She brought a petition, attacking the ordinance on various grounds, and praying for injunction. It was denied, and she excepted.</p>

<p>Processioning. Before Judge Mitchell. Berrien superior court. March 26', 1908.</p>

<p>Petition for injunction, Before Judge Mitcbell. Colcjuitt.superior court. October 28, 1908.</p>

<p>Equitable petition. Before Judge Pendleton. Pulton superior court. February 4, 1908.</p>

<p>Injunction. Before Judge Parker. Camden superior court. August 15, 1908.</p>

<p>Trover. Before Judge Ellis. Eulton superior court. February 4, 1908.</p>

<p>Petitions for injunction. Before Judge Eeagan. Spalding superior court. January 20, March 9, 1908.</p>

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

<p>Cancellation of deed. Before Judge Fite. Dade superio'r court. -March 18, 1908.</p>

<p>Indictment for rape. .Before Judge "Worrill. Clay superior court. January 15, 1909.</p>

<p>Motion to reinstate. Before Judge Mitcbell. Lowndes superior-court. February 10, 1908.</p>

<p>Alimony. Before Judge Mitchell. Berrien superior court. June 6, 1908.</p>

<p>Indictment for murder. Before Judge Littlejohn. Macon superior court. December 26, 1908.</p>

<p>Breach of warranty. Before Judge Mitchell. Colquitt superior court. July 11, 1908.</p>

<p>Action for damages. Before Judge Charlton. Chatham superior •court. July 31, 1908.</p>

<p>Complaint. Before Judge Gober. Cobb superior court. January 6, 1908.</p>

<p>Foreclosure of mortgage. Before Judge Seabrook. Liberty superior court. February 27, 1908.</p>

<p>Complaint for land. Before Judge Fite. Gordon superior court. February 24, 1908.</p>

<p>Alimony, etc. Before Judge Wright. Eloyd superior court. November 6, 1908.</p>

<p>Indictment for murder. Before Judge Wright. Chattooga superior court. October 22, 1908.</p>

<p>1. It is no ground to dismiss a bill of exceptions that the certificate thereto directs the clerk to transmit it and the record of the ease to the Court of Appeals, where that court on receipt and examination of the record, being of the opinion that the ease is one of which the Supreme Court and not that court has jurisdiction, orders the case dismissed from its files and the bill of exceptions and record transmitted to the Supreme Court, it further appearing from an inspection of the record that the Supreme Court has exclusive jurisdiction of the case.</p> <p>2. It is no ground for the dismissal of a bill of exceptions that the brief of evidence considered by the judge in passing on a motion for new trial was not filed pursuant ,to the order of the judge providing for the filing.</p> <p>:3. Where a motion for new trial is filed in term, and', contemporaneously with the grant of a rule nisi calling on the respondent to show cause why the motion should not be granted, the judge passes an order providing “that the movant have until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence in said case, the presiding judge may enter his approval thereon at any time, either in term or vacation, and if the hearing of the motion shall be in vacation and the brief of the evidence has not been filed in the clerk’s office, before the date of the hearing, said brief of the evidence may be filed in the clerk’s office at any time within ten days after the motion is heard and determined,” and where at the hearing the brief of evidence is approved by the judge and considered by him in passing on the motion for new trial, and where the brief is thereafter filed in the clerk’s office more than ten days after the hearing and determination of the motion for new trial, on the same day the bill of exceptions is certified, and the brief of evidence is incorporated in the record sent to this court by specification in the bill of exceptions, this eoui’t will not refuse. to consider such assignments of error as depend on the eitfdenee for adjudication merely because the brief of evidence was not filed with the clerk within ten days of the disposition of the motion for new trial.</p> <p>4. An affidavit which is the basis of a dispossessory warrant and the warrant, after the filing of the counter-affidavit, become mesne process, and are amendable by striking out the representative character of the landlord, and allowing the case to proceed in his individual name.</p> <p>5. An undated affidavit to dispossess a tenant may be amended by supplying the date, on the trial of an issue formed by the tenant’s counter-affidavit.</p> <p>6. Under the statutory affidavit the tenant can raise the issue that no oath was administered to or taken by the person subscribing the alleged dispossessory affidavit. Even if this issue could also be raised by special plea, the striking thereof by the court will not require a new trial, where the defendant is. allowed to make the issue under his counter-affidavit, and the jury are instructed by the court as to the appropriate law.</p> <p>7. The charge complained of contained an expression of opinion, and was prejudicial to the plaintiff in error.</p> <p>8. If an affiant, at the time of tendering the affidavit to the officer, uses language signifying that he consciously takes upon himself the obligation of an oath, and the officer so .understands, and immediately signs the jurat, this will amount to such concurrence of act and intention as will constitute a legal swearing.</p> <p>9. The refusal of the court, on oral motion, to strike pleadings as insufficient is not a proper ground of a motion for new trial.</p> <p>10. An assignment of error that the court allowed the testimony of a named witness to be withdrawn from the jury’s consideration is insufficient where the substance of the testimony is not made to appear. The testimony may have been irrelevant and' harmless.</p> <p>11. Complaint as to the allowance of testimony in evidence must disclose the substance of the testimony which is alleged to be inadmissible.</p>

Petition for injunction. Before Judge Parker. Coffee superior court. September 12, 1908. Lott sued Peterson to recover the value of timber cut from certain land by the Wadley Lumber Company, which claimed the right so to do under a conveyance from Peterson, Lott alleging that he also claimed under a prior deed from Peterson.

<p>“If the'verdict was not demanded by the law and the evidence, the Supreme Court will not disturb the first grant of a new trial, though it was put upon a single ground; nor will it determine whether the trial court was right in granting the motion on the special ground.”</p>

<p>Equitable petition. Before Judge Bawlings. Bulloch superior court. April 27, 1908.</p>

Complaint. Before Judge Charlton. Chatham superior court. August 16, 1908.

<p>1. Where an act of the General Assembly gives a general power to municipal authorities to assess against the property abutting on streets improved a specified percentage of the cost of such improvements, previding for the collection of such assessment by a levy and sale of the property assessed, and there is no provision clearly authorizing such assessment against public property, there is an implied exemption of the property of the county from such' assessment.</p> <p>2. The act of the General Assembly approved August 17, 1906 (Acts 1906, p. 119), has no application to this ease.</p>

<p>The question in this case was certified to this court by order of the Court of Appeals, which is as follows:</p> <p>“J. D. Holloway v. Macon Gas Light and Water Company. In the foregoing case pending in the Court of Appeals, said court desires the instruction and decision of the Supreme Court as to the following question of law necessary to the proper determination thereof, to wit: Does a petition set out a good cause of action, which alleges: that the defendant is the Macon Gas Light & Water Company, which is a public-service corporation engaged in furnishing water to the City of Macon and to the inhabitants of that city for toll, and which has a monopoly of such business in said city; that the city itself and the inhabitants thereof are now and' for the past four years have been utterly -and entirely dependent on the defendant for water supply; that on November 26, 1891, the defendant entered into a contract with the City of Macon, respecting the furnishing of water to said city Tor a period of twenty years, which has not expired (a copy of said contract, omitting certain immaterial parts, is hereto attached as part hereof and marked ‘Exhibit A’); that by the terms of said contract the defendant agreed to furnish water to said city for its benefit and for the benefit of its inhabitants for fire protection and for other purposes, it having therein been agreed by the defendant as follows; ‘The party of the second part [the defendant herein mentioned] agrees to supply the pai’ty of the first part [the Mayor and Council of the City of Macon] with water in sufficient quantities and at all times for fire protection;’ that the City of Macon has continuously paid the defendant, from revenues derived from the taxation of its citizens, for the services so contracted to be performed by the defendant; that on November 19, 1907, petitioner was a citizen and taxpayer of the City of Macon and owned and possessed a certain described house and contents, all of the value of $2,100, in said city, located in the area which defendant undertook to supply with water under said contract, and on said date a neighboring dwelling-house caught fire from causes unknown, but through no fault uof petitioner; that said fire spread and was communicated, to petitioner’s house'and the contents thereof, so that they were burned and destroyed to his loss in the sum of $2,100, despite petitioner’s best efforts to prevent the spread of said fire; that before the fire was communicated to petitioner’s house the fire alarm had been given and the city fire department had responded and reached the scene of the fire; after they reached the scene of the fire they connected the hose with the water-plug of the defendant, with the view of extinguishing the fire and preventing damage to petitioner’s property, which could easily have been accomplished if the defendant had maintained at that time in its supply pipes the pressure it had agreed at all times to maintain; that at said time there was no appreciable pressure of water in defendant’s pipes and not sufficient supply of water to enable the fire department to employ a steamer to extinguish or confine the fire; that despite the presence, willingness, and efficiency of the fire department, the house and contents burned; the defendant knew that neither the petitioner nor the fire department had any other supply of water than that the defendant had agreed to furnish; that the petitioner was without fault in the matter; that during all the times mentioned the defendant was enjoying valuable franchises in its corporate existence and business, notably the occupancy of the public streets with its water-mains, on condition that it should perform the service undertaken under the contract; that the said contract was entered into by the defendant with the City of Macon by virtue of an act of the General Assembly approved September 29, 1891, amending the charter of' the City of Macon, and said contract was designed for the service and protection of the taxpayers of the City of Macon as well as of the city itself; that by reason of said act of the General Assembly and of said contract defendant was obliged to perform a public duty and an express statutory duty toward the inhabitants, property owners, and taxpayers of Macon, and this duty the defendant did not perform, as averred above, to the special hurt, injury, and damage of petitioner; that defendant’s negligence and breach of duty to petitioner consisted in its failure to have in any of the plugs near petitioner’s said property an adequate supply or pressure of water for fire protection, and in failing to have the supply and pressure called for by said contract; and that there was not at said plugs and in the mains leading to said plugs sufficient water to cause a flow at the plugs, and defendant did not have at its plant a sufficient head of steam to give a flow of water ?</p> <p>“It is therefore ordered that a copy -hereof, together with a transcript of the record, be certified to the Supreme Court.</p> <p>“Exhibit A. Between the City of Macon and the Macon Gas Light and Water Company. State of Georgia, County of Bibb. This indenture, made and entered into this 25th day of November, A. D. 1891, by and between the Mayor and Council of the City of Macon, Georgia, party of the first part, and Macon Gas Light & Water Company, a corporation duly incorporated under the laws of the State of Georgia, party of the second part, witnesseth: that for and on consideration of the agreements and stipulations hereinafter set forth, and for certain sums of money to be paid as hereinafter provided, and by the authority conferred upon the- said City of Macon by an act of the General Assembly which became a law on the 29th day of November, 1891, the following mutual agreements are entered into.</p> <p>“Section 1. The party of the second part agrees to furnish the party of the first part with water in sufficient quantities and at all times for fire protection, sprinking streets, flushing sewers, and the various other purposes in the city offices, police barracks, market, and engine-houses, and to supply the citizens of Macon for domestic and manufacturing purposes, during the continuance of this contract, at prices not to exceed the following rates: To the city in its corporate capacity, 200 fire hydrants similar to those already in use, at the rate of $40 per hydrant per annum. For each additional hydrant $37.50 per annum until the number rented by the city shall reach 300, when the price for all shall be reduced to $37.50 per hydrant per annum. . . The citizens for domestic or mechanical purposes shall be charged not more than the following rates: Private dwellings for domestic purposes only, through' a single opening of one-half diameter per annum, $6. . .</p> <p>“Section 2. It is mutually agreed that the said party of the first part shall pay for such water so supplied only as it is received, equal quarterly payments in the months of January, April, July, and October of each month and every year; and that no indebtedness is incurred by said City of Macon by this contract, other than that which may arise from failure on the part of the said Mayor and Council to comply with their contract. . . And for any failure on the part of the party of the second part to furnish the water for the purposes herein specified, it shall forfeit the rentals for double the time during-which said failure has occurred; provided that temporary failure of supply in a portion only of the city, caused by breaks, repairs, or extensions shall not be considered a failure as above, nor for failure caused by the act of Providence.</p> <p>“Section 3. The party of the second part agrees to furnish water as clear and as pure as can be obtained in sufficient quantity in practicable reach of the city; and if any part or all of such supply is taken from the Ocmulgee river, it shall be taken from a point well above the sewerage pollution, and shall be thoroughly filtered.</p> <p>“Section 4. It is hereby agreed by the parties hereto, that, at any time during the continuance of this contract, the Mayor and Council of the City of Macon shall have the right to purchase the system of waterworks used in supplying the city, together with all rights, franchises, and good will, at a price to be agreed on at the time of the sale.</p> <p>“Section 5. Since the present works of the party of the second part have not the capacity to supply more than the present demand, the said party of the second part agrees to increase the pumping capacity to 5,000,000 gallons per day, and to increase the capacity of its mains by reinforcing those already in use by connecting with them larger pipes at various points, so as to secure better pressure and distribution, or erect filters of modern pattern and ample capacity to supply the needs of the city, and so arranged that they can be increased in the future as the demand increases.</p> <p>“Section 6. It is further agreed between the parties hereto, that, as the population and territory to be protected increases, the said party of the second part shall extend its mains and erect hydrants along such streets as may be demanded by the party of the first part; provided the guaranteed income from consumers shall equal six per cent, upon the cost of such mains, and the said party of the first part agrees to rent a fire hydrant in addition to those already rented for 500 feet of main so extended. It being understood that the extensions so to be demanded must be along continuous lines of streets; and that not more than 10,000 feet or two miles of such extensions shall be demanded in any one year, except with the consent of the said party of the second part.</p> <p>“Section 7. For the purpose of carrying out the terms of this contract, it is agreed by the parties hereto, that the use of the streets, lanes, alleys, and public grounds, as they now exist or hereafter may be altered, opened, or extended, shall be granted to the party of the second part during the continuance of this contract, for the purpose of excavating trenches and laying down or changing mains, valves, pipes, and conduits; provided always that in so excavating trenches and laying down or changing pipes, etc., that the grade of the street shall be adhered to, that the public work shall not be unnecessarily impeded or obstructed, and that the roadway shall be left in practically as good condition as it was before such excavating. . '.</p> <p>“Section 8. As the safety of the property of the citizens is largely dependent upon the proper and efficient management of the waterworks, and to that end rules and regulations are necessary to be observed, it is hereby agreed by the parties hereto' that the right of the party of the second part to enter into the premises of the citizens, by its authorized agents, during the business hours of the day, for the purpose of inspecting the water fixtures used by its customers, is recognized, and its right to shut off the water from any section of the city to make repairs and extensions, after notice where practicable, but without notice in emergency, as well as its right to refuse to supply customers who neglect to pay for their supply, or who refuse to have fixtures repaired to prevent waste,- or who persistently waste the water after five days notice, and in accordance with the published rules of the party of the second part. And it is agreed that the said rules made for the management of said works from time to time, as are usual in waterworks management, and not in conflict with the city’s ordinances or the laws of the State, must be observed. And to the end that the property and rights of the waterworks may be protected and waste of water prevented, the following ordinances shall be passed by the party of the first part and become a part of this contract.” (Here follow a number of penal ordinances protecting the property and franchises of the company.)</p> <p>The act of the General Assembly approved August 29, 1891, (Acts 1890-91, vol. 2, p. 566), referred to in the petition and exhibit as certified by the Court of Appeals, was, by its title, “An act to amend the charter of the City of Macon and the several acts amendatory thereof, so as to authorize the Mayor and Council of the City of Macon to construct a system of waterworks in said city at a cost not to exceed $412,000.00, to issue bonds to the amount of $350,000 for the purpose of constructing said system of waterworks for said city and to provide for the construction of a portion of said system of waterworks from the revenues derived from the sale of water therefrom, and to authorize the said Mayor and Council to make a contract with the Macon Gas Light and Water Company for the furnishing of water to said city, with the privilege of purchasing the waterworks used by said Gas Light and Water Company in supplying sáid city; to provide a commission for the negotiation and sale of said bonds, and for the construction and management and control of said waterworks; to grant certain powers and rights to said commission; . . to provide for an election for the purpose of procuring the assent of two thirds of the qualified voters of the City of Macon to the issuing of said bonds; to prescribe a method of registration for said election, and for other purposes.” The act, after conferring authority upon the City of Macon to construct a system of waterworks and to issue bonds, if authorized by the result of the election, as provided in the title of the act, toward .payment for the same, and after creating “The Water Commission of the City of Macon” and prescribing the powers of such commission, among them being authority to sell the bonds if they should be issued in accordance with an election as provided for, in its 14th section contained the following provisions: “That at any time after the passage of this act, and before the election herein provided for shall be held, the Mayor and Council of the City of Macon shall have authority to make and enter into a contract with the Macon Gas Light and Water Company, for supplying the city with water for a period not to exceed .twenty (20) years. . . There shall be embodied in said contract the privilege to the mayor and council to purchase the system of waterworks used in supplying the city, at any time during the period for which said contract is made, at a price to be agreed upon at the time of sale between the parties to said •contract. . . [And] before said purchase shall be made, the assent of two thirds of the qualified voters of the City of Macon shall be obtained, in the manner now or which may hereafter be provided by law, to the incurring of the indebtedness for the purchase of said waterworks. When such contract is made, . . there shall be embodied in said contract a scale rate, showing ■ the price to be paid by private consumers of water; and the mayor and council shall require bond with good security, in the sum of one hundred thousand dollars, for the faithful carrying out of said contract by the Macon Gas Light and Water Company; provided, that while said contract shall be made by the said Mayor and Council o'f the City of Macon with said Gas Light and Water Company, in the event that the provisions in this act to issue bonds for the erection of a system of waterworks by a commission, as herein provided for, shall receive the assent of two thirds of the qualified voters of the City of Macon, as provided for' in section 13 of this act, then said contract shall no longer be of force and effect, but shall discontinue and be inoperative as though never made. If the provisions of .this act, as to the issue of bonds, shall not be ratified by the said votes as required, then said contract shall still remain and continue in full force and effect.” The act then provides that if no contract be entered into prior to the election for bonds, or if such election should not result in favor of the issuance of bonds, then the mayor and council shall have authority to make a contract with the water company for the period of twenty years for supplying the city with water, under the same terms, conditions, and stipulations as contained in the act in reference to a contract made prior to such election.</p>

<p>1. The allegations of the equitable petition brought to set aside the judgment of the court of ordinary granting letters of administration on the estate of a non-resident, to the effect that he left no property in the county where the application was made at the time of his death, and that none was there at the time when the application was made, except a promissory note on an insolvent debtor residing in another county of this State, which had been fraudulently carried to the county where the application was made, for the purpose of giving colorable jurisdiction there, were not sustained by the evidence.</p> <p>2. Although a resident of another State left, at the time of his death, no property in the county of this State where application for letters of administration was subsequently made, yet where personal property of the estate was brought into such county after his death and was there located at the time when application was made for letters of administration and when they were granted, the court of ordinary of that county had jurisdiction to grant the letters, unless the property wag carried there in bad faith, and with the intention of conferring improperly a colorable probate jurisdiction.</p> <p>.3. Where assets forming a part of the estate of a non-resident decedent are located in two counties of this State, administration can be granted in either, and the ordinary first commencing the exercise of jurisdiction will retain it.</p>

<p>1. Where two elections were held in the City of Marietta for the purpose of determining whether issues of bonds should be authorized, and no complaint was made of lack of authority to hold the elections or of want of any of the prerequisites for so doing, but it was contended that certain provisions of the charter of the city were violated, which prohibited persons other than the voters or managers, from being allowed to be within 50 feet of the polling place, and prohibited electioneering or seeking to influence voters, or following or accompanying them for the purpose of influencing them, or seeing how they should vote, or seeing that they should vote in any particular way, and declared that a violation of such provisions should be a misdemeanor: Held, that these provisions of the municipal charter were directory in their nature, and a violation of them by some persons and a failure to enforce them by the election managers did not operate to invalidate the entire election, it not appearing that the result would have been otherwise had' there been a compliance with such provisions.</p> <p>2. If there was some irregularity in the manner of registering a few voters, but it did not appear that such persons voted in the election, or that , they were in fact not qualified to register, or that such irregularity affected the result, this furnished no cause for declaring the election void, and refusing to validate bonds authorized thereby. .</p> <p>3. The rulings announced in the preceding headnotcs apply to and govern both cases.</p>

<p>Indictment for murder. Before Judge Whipple. Dooly superior court. January 22, 1909.</p>

<p>Petition for injunction. Before Judge Lewis. Greene superior court. January 14, 1909.</p>

<p>■ Indictment for murder. Before Judge Littlejohn. Chattahoochee superior court. January 23, 1909.</p>

<p>1. Where suit was brought in the superior court against a corporation, process was issued directed, to it, and the sheriff made a return stating that “I have this day served the defendant’s agt. [naming him] with a copy of the within writ, by handing copy to said agt.,” such an entry of service was not void, and the record of the suit with the judgment thereon was not inadmissible as evidence on that ground.</p> <p>2. The decision in Burnett eg Goodman v. Central of Georgia By. Co., 117 Ga. 521 (43 S. E. 854, 97 Am. St. R. 175), distinguished.</p> <p>3. A mortgage in this State is only a lien, and conveys no title. Possession by virtue of it, therefore, furnishes no defense against an action of ejectment by the holder of the title.</p>

<p>1. In an action for a breach of contract of employment, where one of the defendants had testified directly that the contract with the plaintiff was in writing contained in a letter written and mailed to the plaintiff, but which the latter denied receiving, contending that the contract was in parol, it was immaterial whether the witness had made contracts with others for similar services by parol, or not; and there was no error in excluding a statement that he had never made a contract with any man to buy cotton for him, except in writing.</p> <p>2. Where an employer consented for his employee to perform some small work for another during the continuance of the employment, it was not competent for him to testify that this consent was based on his idea of what were the terms of his contract with his employee, such idea or basis of consent not being communicated to the employee, or known to him.</p> <p>3. If the contract of employment included a provision that the service' should continue only so long as it was satisfactory to the employer, the latter might terminate the employment upon becoming dissatisfied.</p> <p>(a) Where, in a suit by a discharged employee to recover for such discharge ' as being unlawful during a certain period fixed by the contract, the employer pleaded and introduced evidence to show that it was agreed that the continuance of the employment should be dependent upon the satj isfaction of the employer, it was error to practically exclude such issue from the jury and to instruct them, in effect, that the employer could not legally discharge the employee before the expiration of his term of employment, except for good and sufficient cause, “and the jury are the exclusive judges of what is a good and sufficient cause, basing their judgment upon the evidence in the ease;” and also that the employer would be justified in discharging the employee for “such incompetent and inefficient services or misconduct of the plaintiff as would justify [the employer] in so doing.”</p> <p>4. In the light of the note appended by the judge to some of the grounds of the motion for a new trial, and of the writing off from the recovery of certain items thereof, the other grounds of the motion not herein ■ specifically mentioned do not present any error requiring a reversal.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. February 3, 1908.</p>

<p>Trover. Before Judge Brand. Gwinnett superior court. January 24, 1908.</p>

Before Judge Spence. Calhoun superior court. February 10, 1908. At the December term, 1907, of the superior court of Calhoun county the judge directed a verdict in favor of the plaintiff in the ease of Mrs. E. Z. Ledden against J. W. Clements. On the 4th day of December, 1907, during the term at which the verdict was directed, the defendant filed his motion for a new trial.

<p>1. The evidence demanded a verdict for the plaintiff for the full amount for which suit was brought, and the court erred in refusing to grant a new trial.</p> <p>2. The plea of the defendant was not subject to the demurrer filed' thereto.</p>

<p>Temporary alimony. Before Judge Parker. Wayne superior court. September 12, 1908.</p> <p>cited Civil Code, §§2432, 4949, 5079; 86 Ga. 482; 115 Ga. 834; 127 Ga. 464; 128 Ga. 54.</p> <p>cited Civil Code, §§2430, 2433, 2457, 2460, 2461, 2467, 4901; 60 Ga. 204; 109 Ga. 465; 30 Ga. 81;'123 Ga. 802; 33! Ga. 172; 126 Ga. 438.</p>

<p>Action for damages. Before Judge Ellis. Eulton superior court. March 21, 1908.</p>

<p>A judgment confirming and validating an issue of bonds by a municipality can not be attacked collaterally for want of jurisdiction in the court to render the judgment, unless the want of jurisdiction appears on the face of the record.</p>

<p>The recital in an order granting an injunction pendente lite, that the judge is influenced to grant the writ for specified reasons, affords no ground to the prevailing party to except to the judgment because the court should have assigned other matters alleged in the petition as being sufficient to justify the interlocutory order.</p>

<p>Injunction. Before Judge Kimsey. Hall superior court. November 24, 1908.</p>

<p>Partition. Before Judge Lewis. Morgan superior court. June 19, 1908.</p>

<p>The first item of the will of a testator, who died in 1841, was: “It is my will that my wife . . and my children [naming them, six in number] shall share an equal proportion of my estate, after my wife and .[four named children] shall have a sufficient sum of money or property out of my estate to make them equal to the amount willed [to the other two children] by their grandfather, . . it being my desire to place them all on an equality.” The second item was: “It is my will that my wife remain on the place of residence where I now reside, during her life or widowhood, and, in case she marries, for her to receive a child’s part.” The widow never remarried, and continued in possession of the premises referred to in the second item till 1852, when she sold and conveyed her interest therein. She died in 1907. Held, that, construing the two items together, the intention of the testator was, after an equalization, to give to the widow and to each of his six children a one-seventh interest in his estate, including the land mentioned in the second item, and to the widow, in addition to a one-seventh interest, the privilege of remaining on the place referred to in the second item, during her life or widowhood.</p>

<p>Complaint. Before Judge Mitchell. Lowndes superior court. May 21, 1908.</p>

<p>Where>suit was brought by an administrator to recover certain land, and it appeared from the evidence introduced by the plaintiff that his intestate died in possession, an'd that afterwards a son of the decedent took possession with his family, and died while residing there, and that the widow of such son, who remained in possession after his death, was the defendant in the action, but there was, no evidence that the administrator had ever been in possession, or that any order for sale of the ..land had been granted, or that there was any necessity for him to recover it in order to pay debts or distribute the estate of his intestate, a nonsuit was properly granted.</p>

<p>Appeal. Before Judge Parker. Coffee superior court. August: 22, 1908. »</p>

<p>Quo warranto. Montgomery superior court.</p>

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

<p>Trover. Before Judge Charlton. Chatham superior court. April 14, 1908.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. August 6, 1908.</p>

<p>Where one erects alongside a public road telephone poles on which telephone wires are placed, and a person climbs one of such poles by permission of the owner to remove the wire for the purpose of removing a building for another across such road, and the pole because of its “rotten condition” breaks and injures such person, the owner of such poles is not liable in damages to the injured party because the poles were erected along the roadside “without authority or right and contrary to law,” and such pole was knowingly allowed to stand in a “rotten condition.” The acts of alleged negligence were not acts of negligence relatively to the party injured while climbing the pole for the purposes stated.</p>

<p>Attachment. Before Judge Freeman. Troup superior court. January 25, 1908.</p>

Complaint. Before Judge Martin. Muscogee superior court. August 18, 1908. Charles J. Swift brought an action against Edward W. Swift and James P. Kyle, to recover damages which he alleged he had sustained at their hands.

<p>Complaint. Before Judge Whipple. Irwin superior court. July-16, 1908.</p>

<p>Motion to open default. Before J. H. Seaife, judge pro hac ■ vice. Mitchell superior court. July 23, 1908.</p> <p>On July 23, 1908, W. II. Manry and his wife presented to the judge presiding in the superior court of Mitchell county, then in session during an adjourned term, a petition alleging, in brief, as follows: They reside in said county. On October 1, 1907, W. C. Twitty filed in the office of the clerk of the superior court an action against the present petitioners, to recover certain land. The case was returnable to the October term, 1907, of the court, and service was perfected on the defendants. W. H. Manry, representing himself and wife, went to the county seat and employed a firm of attorneys to represent them in the case. He delivered to the attorneys the copies of the petition which had been served on the defendants, together with their titles to the land in question, made to the attorneys a full and complete statement of the status of the case, and directed them to file the defense to the suit at the October term; hut at that term W. H. Manry was sick and unable to attend court, and his attorneys, not finding him there, did not file a defense to the action. “When the October term, 1907, of said court convened, which was the return term of said case, petitioner W. H. Manry was not physically able to attend said court, but thought that said attorneys whom they had employed to file their defense would attend' to the same.” He would have been present at that term of the court had he not been sick. The defendants did not know that the case was in default until the term when the petition was filed (April adjourned term, 1908). They came to court prepared to go into the trial, and upon inquiry as to the status of the case they learned that it had been marked in default at the October term, 1907. They have a legal, meritorious defense to the suit, the husband holding bond for title to the land and the right of possession thereto, having purchased it in 1906, and having from that date been in peaceable possession thereof. The wife is not interested in the land. There is in fact but about two fifths of an acre involved in the litigation, but upon it the husband, since its purchase, has erected improvements of the value of $200 or more, and these were made before the action to recover the land was begun. In a dispute as to the correctness of the.land line, processioners, with the county surveyor, after having given to Twitty and other parties interested due and legal notice, surveyed the line of the tract, and their finding was in favor of Manry. They tendered the costs, announced that they were ready to proceed to trial, and prayed that the judgment of default be opened.</p> <p>Twitty demurred to the petition, because it set forth no legal reason for opening the default, and because no legal or meritorious defense was filed with the motion or set out therein. 'Thereupon an answer to the original suit was tendered, which admitted possession in Manry, denied that the plaintiff had title or that the defendants had received mesne profits of the value alleged by the plaintiff, admitted that they refused to deliver possession to the plaintiff, and alleged that Manry claimed title to the land under bond for title from H. H. Merritt made March 1, 1908. On the hearing of the motion the respondent directed the attention of the judge to the records of the court in which the suit was pending, and tendered them as evidence. The court admitted them over objection. They showed that at the October term, 1907, the court remained in session from the 21st to the 25th of October, and was adjourned until January 20, 1908, and remained in session from that date until January 28, when the October term was finally adjourned. The docket showed that the entry of judgment by default had been made at the October term, 1908. It was admitted that the ease had been called in open court but once since it was filed, that is when the entry of judgment by default was entered; and also that the record did not show that the entry of judgment by default had been made on the last day of the court or on any other day previously fixed by order of the court for the calling of the appearance docket. After considering the motion to open the default, the records of the court, and the defense 'tendered by the movants, the judge entered the following order: “Upon hearing this demurrer the same is hereby sustained, and the motion to open the default judgment is hereby refused and denied.” The plaintiff in the original suit was then allowed to take a verdict by default, without the introduction of evidence, and the movants excepted.</p>

Equitable petition. Before Judge Mitchell. Thomas superior court. May 21, 1908. Hansell W. Compton and other's brought their action -against J. Floyd Fender, praying an injunction to prevent the cutting of timber, and also to recover damages. The plaintiffs introduced a plat and grant from the State to Charles W. Compton, and then offered the answers of Hansell W. Compton to interrogatories.

<p>bivorce. Before Judge Pendleton. Fulton superior court. January 6, 1908.</p>

Claim. Before Judge Ellis. Eulton superior court. April 15, 1908. Mrs. Mariah L. Harris owned certain land in the city of Atlanta. She died testate, leaving three living daughters. By her will she left the proceeds of a policy of life insurance to be. divided among her three daughters and the children of a deceased son. The rest of her property she bequeathed to her two unmarried daughters, Josephine and Matilda. This will was probated in 1885.

<p>Claim. Before Judge Ellis. Eulton superior court. March 31, 1908.</p>

<p>Where title to real estate is conveyed by a duly recorded deed to secure a debt, and the grantee takes the deed and advances the money loaned, without notice and before the record of a materialman’s lien upon the property, the title thus acquired is superior to such lien.</p>

Action upon insurance policy. Before Judge Ellis.1 Fulton su-perior court. July 27, 1908. Anna Durdin brought suit against the Southern Mutual Life Insurance Association on a policy issued by it to William D. Durdin.

Action for damages. Before Judge Roan. DeKalb superior-court. May 2, 1908. A number of cars of cut stone were shipped from Stone Mountain, Ga., to Vicksburg, Miss. When delivered the stone was broken and damaged.

Action for breach of contract. Before Judge Eve. Kichmond superior court. July 8, 1908.

<p>Equitable petition. Before Judge "Rawlings. Bulloch superior court. May 2, 1908.</p>

<p>Ejectment. Before Judge Cann. Motion for new trial before Judge Charlton. Chatham superior court. March 6, 1908.</p>

<p>Action upon insurance policy. Before Judge Charlton. Chat-ham superior court. March 27, 1908.</p>

<p>Complaint for land. Before Judge Seabrook. Liberty superior court. February 7, 1908.</p>

<p>Trover. Before Judge Brand. Gwinnett superior court. January 21, 1908.</p>

<p>Quo warranto. Before Judge Reagan. Pike superior court. December 5, 1908.</p>

<p>1. Where a case was tried in a county court and an appeal entered therein to the superior court, an order afterwards establishing, in the superior court, copies of the petition and appeal bond, reciting the contents of the judgment appealed from, was a judgment that the papers were in the superior court and were lost, and that the copies established were correct copies; and after verdict and judgment in the superior court, the latter judgment could not be attacked by affidavit of illegality on the ground that in fact the papers were never transmitted' from the county court to the superior court. This is especially true where the defendant on the hearing of the illegality proposed and took an order, in the superior court, establishing a copy of his plea in the case, thus estopping himself from denying that there was such a plea of file in that court.</p> <p>2. Such of the other grounds as were appropriate to be set up in an affidavit of illegality were, under the pleadings and evidence, without merit; a verdict in favor of the illegality would have been unauthorized, and, regardless of any errors occurring on the trial, the overruling of the motion for a new trial was proper.</p>

<p>Action for damages. Before Judge Fite. Gordon superior court, March 2, 1908.</p>

<p>Petition for injunction. Before Judge Worley. Clarke superior court. September 26, 1908.</p>

Condemnation — appeal. Before Judge Ellis. Eulton superior court. February 5, 1908. The Georgia Bailway and Electric Company commenced proceedings under the Code of 1895, §§4-657 et seq., to condemn a right of way through a tract of land belonging to the Atlanta Terra Cotta Company. The condemnor gave notice to the landowner, assessors were appointed by each, and a third selected.

<p>1. The court charged the jury iii part as follows: "From the peculiar character of rape and assault with intent to rape, care is to be used in regard to them. The injured female is usually a competent witness in such cases, but the degree of credit to be given to her evidence depends more or less upon the concurrence of the circumstances of the fact with her testimony. For instance, if she be of good fame, if she presently discovered the offense, made pursuit after the offender, showed circumstances and signs of the injury; if the place where the fact was done was remote from the people, inhabitants or passengers, or if the offender fled, — these and the like are concurring evidences to give greater probability to her testimony, when proved by others as well as herself. But if she concealed the injury for any length of timo after she had an opportunity to complain; if the place where the fact was supposed to be done, when and where it is probable that she might be heard by others, these and like circumstances carry a strong presumption that her testimony is false or feigned. Such is the care that the law uses in scrutinizing allegations of the crime of rape.” Meld, that the excerpt from the charge above quoted was not open to the criticism, “that it is argumentative in favor of the prosecutor — the woman alleged to have been raped; that its effect is to lend undue weight to the testimony of prosecutor, and to influence the jury in believing that her testimony was to be believed in preference to the other testimony if it chanced to coincide with the language used in the first portion of said charge.”</p> <p>2. The verdict was authorized by the evidence.</p> <p>3. The evidence in the case requiring a finding that the defendant was guilty of the offense of rape, if guilty of any offense, it was not error for the court to refuse to submit to the jury the question of whether the defendant was guilty of the offense of assault with intent to commit a rape.</p>

<p>Where a partnership is sued for an alleged breach of contract of sale to it, and. the plaintiff’s proof develops that if any sale was made, it was jointly to the partnership and to an individual not a member thereof, the variance between the allegata and probata is fatal.</p>

Action for damages. Before Judge Pendleton. Fulton superior court. April 18, 1908. The plaintiff alleged, that, being a passenger holding a ticket ■entitling him to transportation, he was wrongfully and tortiously ■ejected from a passenger-train of the defendant company by the conductor. After the evidence was closed for both sides, and before the court began the charge to the jury, the plaintiff offered an amendment to his petition, which the court refused to allow.

<p>1. Where, in a suit against a railway company on account of a personal injury, the charge of the court nowhere informed the jury what were the issues or contentions between the parties, made by the pleadings or evidence, and the charge given consisted almost entirely of abstract principles of law, and they were not so accurately applied to the case as to render it probable that the jury apprehended what were the issues, or that the omission to instruct them on that subject was harmless, a, new trial will be granted.</p> <p>2. In an action against a railway company to recover damages for a personal injury on account of a negligent tort, the defense declared by the Civil Code, § 2322, that no person shall recover damage from a railroad company for injury to himself or his property where the same is caused by his own negligence, and that provided for in section 3830, which states that if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover, are not identical; and where the evidence is such as to present both defenses, the charge should include both, even in the absence of a request therefor.</p> <p>3. Where there was no evidence to show wilfulness, recklessness, and wantonness on the part of the employees of the defendant, tibe judge should not have referred thereto in his charge.</p> <p>4. If the substantial law covering the issues made by the pleadings and evidence is given in charge, and more specific instructions are desired by either party, appropriate requests for that purpose should be made.</p> <p>(а) Where the presiding judge charged that if tlie defendant was not guilty of negligence causing the injury, the plaintiff could not recover, an omission to charge, without request, that if the injury resulted from accident there could be no recovery, was not such. a failure to charge in regard to a distinct substantive defense as will require the grant of a new trial.</p> <p>(б) The ease of Atlanta, Railway £ Power Go. v. Gaston, 118 Ga. 418 (45 S. E. 508), considered and disapproved.</p> <p>5. Except as above indicated, none of the grounds of the motion for a new trial require a reversal.</p>

<p>Where an innkeeper provided a lot and stable in which his guests were' permitted to keep their horses without charge, but it was customary to . charge for feed for horses if furnished by the innkeeper, it was not sufficient evidence of the relation of innkeeper and guest that one drove into the lot, unhitched his mule from his buggy, and placed the mule in a stable pointed out by a boy in charge of the lot and stables, and then left the premises without entering the inn or having any agreement with the innkeeper or his authorized agent that he would be a guest, or that the innkeeper should furnish any feed for the mule, or doing anything further towards becoming a guest, though the owner stated to the boy that he would return and would himself feed his mule at dinner time, and though he testified that he intended to take dinner at the inn with another person who accompanied him, and who dined there, but did not do so because before the dinner hour he learned of injury to the mule.</p>

<p>Illegality. Before Judge Worley. Taliaferro superior court. February term, 1908.</p>

<p>Petition for injunction. Before Judge Lewis. Greene superior court. November 20, 1908.</p>

<p>1. There was evidence from which the jury might infer that the killing was without premeditation, upon a sudden impulse of passion, aroused not alone by words but also by an attempted indecent exposure of the person of the deceased in the presence of defendant’s wife, and by the commission upon the defendant of an assault by the deceased; and an appropriate instruction on the law of voluntary manslaughter should have been given to the jury.</p> <p>2. The cause of the separation of the deceased from his wife was irrelevant to any issue in the ease, and evidence relating thereto was properly excluded.</p> <p>3. The words “reasonable doubt” are of such obvious significance that an omission to define them, in the absence of an appropriate written request, will not require a new trial.</p>

<p>Indictment for murder. Before Judge Rawlings. Washington superior court. March 4, 1909.</p>

<p>Action of trespass. Before Judge Spence. Mitchell superior court. February 22, 1908.</p>

<p>'Complaint. Before Judge Mitchell. Colquitt superior court. February 8, 1908.</p>

<p>Eviction; from Newton. Motion to dismiss writ of error.</p>

<p>Action for damages. Before Judge Roan. DeKalb superior court. June 27, 1908.</p>

<p>Equitable petition. Before Judge Bawlings. Emanuel superior court. May 24, 1908.</p> <p>On March 31, 1902, B. L. Dekle, Lucy L. Morehead, W. J. Evans, and George P. Edenfield filed their equitable petition in the superior court of Emanuel county, against P. H. Emmett & Company, the Tattnall Investment Company, Lizzie Y. Emmett, administratrix of the estate of P..H. Emmett, deceased, Wade B. Shrivall, and the Ellis-Young Company, all being residents of Emanuel county, except the Tattnall Investment Company, a corporation, and the Ellis-Young Company, which were residents of Chatham county. The allegations of the petition were substantially as follows : The firm of P. H. Emmett & Company, composed of P. H. Emmett and the Tattnall Investment Cohipany, was formed for the purpose of producing and manufacturing naval stores, having its plant and place of business in Emanuel county. John B. Young and C. S. Ellis, both of Chatham county, were respectively president and secretary and treasurer of the Tattnall Investment Company. The amounts of indebtedness of the firm of P. H. Emmett & Company to the sevdral plaintiffs are set forth, and it is alleged that this firm owes various other creditors several thousand dollars, all of which indebtedness was created since May 9, 1899. P. H. Emmett having died on August 26, 1901, while a resident of Emanuel county, his widow, Lizzie V., qualified as his administratrix, and waived the twelve months exemption from suit allowed her by law. P. H. Emmett & Company, the estate of P. H. Emmett, and the Tattnall Investment Company are alleged to be insolvent. The Ellis-Young Company, of which John B. Young and C. S. Ellis are the members, hold a mortgage given by P.'H. Emmett & Company to secure an' alleged indebtedness of $11,000, and also to secure future advances, upon which it is claimed that there is due them- the amount of $25,000, and are also the transferees of a mortgage made by P. PI. Emmett & Company to Ellis, Young & Company' to Secure an alleged indebtedness of $10,500, on December 15,, 1897, which mortgage shows no credit, and which the transferees claim is yet due. It is alleged on information and belief that this latter mortgage was given without any consideration, and for. the purpose of defrauding and defeating certain judgments in existence against P. H. Emmett at the time of its execution. For nearly three years since the execution of the $11,-000 mortgage P. H. Emmett & Company have shipped to the Ellis-Young Company their entire output of naval stores worth several thousand dollars, for which no credit has been made upon either of said mortgages, and the Ellis-Young Company refuse to explain what has been done with such, shipments. Since the death of P. H. Emmett, the Tattnall Investment Company, through its officers, Young and Ellis/ has, as surviving partner, taken charge of the property of the firm of P. H. Emmett & Company, through Wade B. Shrivall. Young and Ellis, representing, owning, and controlling the Tattnall Investment Company, have been dis: posing of all the property of P. H. Emmett & Company they possibly could, which has been acquired since the mortgage was made, and through Shrivall wasting, destroying, and removing out of Emanuel county all the property of’this firm not embraced in the mortgages. The Ellis-You-ng Company have by virtue of a power of sale. in these mortgages advertised all the property of P. H. Emmett & Company for sale on November 22, 1901, the property being of the value of $7,000; and the Tattnall Investment Company in collusion .with the Ellis-Young Compaq, both of which ' are' operated, controlled, and owned by the same parties, are by these means striving'to defeat the collection of any and all just' demands of all parties against P. H. Emmett & Company. It is alleged that upon a proper accounting between the firm of P. H. Emmett & Company and the Ellis-Young Company there will be left sufficient property to pay at least fifty per cent, of the bona fide indebtedness of this firm, but if not restrained the Ellis-Young Company will waste, squander, and appropriate the whole amount. The prayers of the petition are: (1) for the appointment of a receiver to sell the property and dispose of the proceeds under 'proper orders of the. court; (2) that the mortgages of the Ellis-Young Company be brought into court and decreed to be null -and void as being without consideration, and, if there was any consideration, that it be'decreed to be paid; (3) that defendants be restrained from selling, appropriating, mánaging, controlling,' or in any manner interfering with the property of P. H. Emmett & Company, and that all the defendant's be enjoined from further management or control of this property; (4) for judgment against the firm of P. H. Emmett & Company as a partnership, and against the Tattnall Investment Company as a member of the firm, and Lizzie V. Emmett, administratrix of P. H. Emmett; 'deceased (de bonis testatoris), as individuals composing this'firm,-for the full amounts of plaintiffs’ demands, and against the Ellis-Young Company, and John B, Young and C. S. Ellis, and that all these parties be served with a copy of this petition, and with process; (5) for such other relief as they may be entitled to; ánd (6) “that process may issue requiring said P.H. Emmett & Company, the Tattnall Investment Company, EllisYoiing Company, and Wade B. Shrivall and Lizzie Y. Emmett to be and appear at the April term of the superior court,” to answer this complaint. The process is headed “W. J. Evans et al. v. Lizzie Y. Emmett et al. Complaint,” and proceeds as follows: “The‘defendant, Lizzie Y. Emmett et ais., are hereby required,” etc; The only entry of service is an acknowledgment thereof, with waiver of process, and the twelve months exemption fróni suit, signed- “6. 3L Williams, Atty. at law for Lizzie V. Emmett, Admx. of P. H. Emmett, deed.,” ddted November 19/1901.</p> <p>The defendants, P. H. Emmett & Company, the Tattnall Investment Company, “the'surviving copartner of the-said'firm 'of P. H. Emmett & Company,” the Ellis-Young Company j John E. Young, and C. S.. Ellis, by their attorneys, on April 1, 1902, filed their demurrer to the petition, upon the grounds, that it set forth no cause of action; that it showed no ground for injunction, receiver, or other equitable relief; that- there is an ample remedy at law; that the petition on its face shows that the superior court of Emanuel county has no jurisdiction of the case, because no defendant against whom substantial relief, especially equitable relief, resides in that county, but all reside in Chatham county; that the date on which the alleged threatened sale, sought to be enjoined, was to take place was November 22, 1901, while the petition was not filed till April of the following year, long after it had taken place, and was therefore, as to its main ieatitr'es, too late; that the allegations of the petition were too vague, there being no statement as to the property alleged to be under- mortgage, and no copy of either mortgage attached to the petition nor any reason alleged why it was not so attached; that the allegations of fraud were too vague and indefinite, and it was not alleged that plaintiffs were interested in the judgments against P. Hr Emmett, mentioned in the petition; and that the petition was vague and uncertain as to parties. ■’ '</p> <p>After filing the petition W. J. Evans and George P. Ederifield withdrew from the cause, leaving B. L. Dekle and Lucy L. More-head as plaintiffs. Under an agreement between counsel the demurrer came on to be heard before Judge Bawlings on December 30, 1907, at which time two amendments to the petition were presented and allowed. The first of these amendments alleged, that Mrs. Emmett, John B. Young, and C. S. Ellis eollusively took possession and control of the entire estate of P. H. Emmett & Company, in Emanuel county, consisting of described lands and personalty, of the value of $16,000, and, under the pretense that the mortgage referred to in favor of the Ellis-Young Company covered this property and was a valid lien on the same, sold this property under their mortgage, bought it in themselves,- and converted it to their own use, when in fact this mortgage - did not cover such property; that all this property is still in the testate of P. H.- Emmett & Company, hut by the acts referred to has been placed out of the reach of petitioners and the other'creditors 'of P. H. Emmett & Company; that the administratrix is bnly under a small bond, not sufficient to cover this property, and the “'defendants, jointly and in collusion with each other, having converted said property to their own use in manner and form aforesaid, are jointly liable to your petitioners for their respective sums against the said P. H. Emmett & Co.;” that in legal contemplation the firm of P. H. Emmett & Company consisted of C. S. Ellis, John E. Young, and P. H. Emmett, for the reason that the Tattnall Investment Company, which it was claimed was the “Company,” had for several years prior to the formation of this firm been extinct, Ellis and Young being respectively its president and secretary and treasurer, and the business was carried on and operated by these three persons, and for this reason they had no right to dispose of the assets of the firm in the manner and form stated; and that the consideration of the notes sued on was turpentine timber sold to P. H. Emmett & Company, of which defendants got the full benefit, and in equity and good conscience they are liable to petitioners to the value of the same. The prayer of this amendment is for such judgment and decree as the pleadings, evidence, and the law of the case may authorize. The second amendment alleges, that P. H. Emmett as an individual, and the Tattnall Investment Company as a corporation, formed the partnership of P. H. Emmett & Company, and because a corporation was one of the partners the contract of partnership was contrary to public policy, null and void, and in equity Ellis and Young (being the members of the Tattnall Investment Company) and P. H. Emmett constituted the firm of P. H. Emmett & Company, and are therefore liable individually for the amounts due thereon; that equitably all the creditors of P. H. Emmett & Company are entitled to share in the assets of the firm ratably, regardless of liens, mortgages and conveyances made by this firm to any creditors; and that if Ellis and Young are not partners of that firm and individually liable as such, they can only share ratably with the other creditors as members and stockholders of the Ellis-Young Company, these mortgages being null and void in legal contemplation. The method by which the property was sold is attacked, it being alleged that the power of sale in the mortgage signed by P. H. Emmett & Company was revoked by the death of P. H. Emmett, and that Lizzie V. Emmett, as the administratrix of P. H. Emmett, deceased, had notice of its illegality and, with such knowledge, procured, aided, and acquiesced therein. Copies of the notes representing petitioners’ indebtedness are attached, and also of the two mortgages, • and a deed made by the Ellis-Young Company to John R. Young, by virtue of the sale under the power. These mortgages and this deed are alleged.to be void, and it is prayed that they be delivered up and canceled. After the allowance of the amendment, the defendants who originally filed their demurrer (except John R. Young, who has since died) renewed their demurrer and moved “to dismiss the case as amended, because these defendants 'are not served with process, or made parties, or legally brought into court. And also upon all the ten grounds set forth in the original demurrer filed by defendants.” Upon this motion to dismiss the court endorsed the following order: “The within motion not having been filed till Dec. 30th, 1907, the date when said demurrer therein referred which was filed April.21st, 1902, the same is hereby overruled as coming too late, said general and special demurrer having been filed several terms of said court previous to said motion, being equivalent to a waiver of service or any defect in the service.” Defendants complain of the refusal to sustain their demurrer and the motion to dismiss.</p>

<p>Complaint. Before Judge Hammond. Richmond superior1 eonrt. April 20, 1908.</p>

<p>Action for damages. Before Judge Charlton. Chatham superior court. March 9, 1908.</p>

<p>Trover. ' Before Judge Seabrook. McIntosh superior court. February 7, 1908.</p> <p>James MeNatt brought an action of bail-trover against Clarke Brothers, seeking to recover two rafts of timber. The defendants denied the plaintiff’s title to the property, and contended that it belonged to them. MeNatt was the owner of certain timbered lands. T. P. McBride and W. D. Petersen executed and delivered to him thé following written contract, which was recorded: “State of Georgia, Montgomery County. This indenture and contract of lease made and entered into this the 22nd day of January, 1903, between James MeNatt of the first part and T. P. McBride and W. D. Petersen of the second part, all the parties of the county and State aforesaid, witnesseth, that for and in consideration of the sum of two thousand and thirty-six and 42/100 dollars to be paid as hereinafter provided, as the purchase-price of all the sawmill timber on the following tract of land- [describing it]. The aforesaid condition [consideration?] of two thousand .and thirty-six dollars and 42/100 is to bear interest at the rate of eight per cent, per annum from the above date, and is to be paid as follows: . The said parties of the second part hereby agree, in order to pay the aforesaid sum of two thousand and thirty-six and 42/100 dollars and all interest that may accrue thereon at the said rate of 8% per annum, to cut, haul, and saw square all the sawmill timber on the land aforesaid, and when the same is ready for the Darien market then the same is to be sold to a buyer who will make the check payable to the said James MeNatt, who hereb3r agrees to return to the said party of the second part one half of the proceeds of said cheek in order that the said parties may defray the expenses incurred by reason of preparing the said timber for market. It is further agreed by the parties to this contract, that the said James MeNatt reserves the title to the aforesaid sawmill timber and control and sale thereof until the purchase-price aforesaid is paid. In order to further secure the aforesaid sum of two thousand and thirty-six and 42/100 dollars, we hereby mortgage and create a lien on the following personal property, to wit: [describing it]. It is further agreed 'that the above sum of two thousand and thirty-six and 42/100 dollars to become due and collectible in six months from the above date; and should we fail to pay the aforesaid sum of two thousand and thirty-six and 42/100 dollars, we hereby constitute the said James McNatt our lawful authorized agent to sell said mules heretofore described and to execute titles thereto in our names after having advertised the same for ten days at the courthouse in Montgomery county, Georgia, said Co., and appropriate the proceeds to the payment of the aforesaid sum and all interest and costs that may accrue thereto. And we hereby waive and renounce for ourselves and families all the rights to the homestead or exemption laws which we may have under or by virtue of the constitution or laws of the State of Georgia or of the United States, as against this note or any renewal thereof. In witness whereof we have hereunto set our hands and seals, the day and year first above written. T. P. McBride. (L. S.) W. D. Petersen. (L. S.) Signed, sealed, and delivered in presence of W. L. Wilson, Com. N. P. M. Co., Ga. Becorded January 28th, 1903. D. B. Graham, Clerk.”</p> <p>On this were entered four credits of $90.82, $462.97, $440.64, and $366.67, respectively. McBride and Petersen cut timber from the property and caused it to be sold. Some of the drafts or checks given in payment were made payable to McNatt, and some to the order of McBride and Petersen. In order to carry on the business, McBride and Petersen purchased supplies from merchants, a large part of them from E. T. McBride & Company, which firm was composed of E. T. McBride and the plaintiff, McNatt. The plaintiff testified that that firm would not furnish McBride and Petersen with supplies until he agreed that the indebtedness due them should first be paid from the proceeds of the timber as cut and sold, and then the balance should be paid to him on account of the purchase-price, he saying, "If anybody loses, let it be me.” He admitted that $2,037.42 had been by consent delivered to E. T. McBride & Company; and said, that, after settling the account of that firm, he received certain payments for which he gave credit on the contract with McBride and Petersen. He testified that these applications of payments were made by agreement between himself, E. T. McBride & Company, and McBride and Petersen. He indorsed drafts .which were payable to him. Finally Clarke Brothers bought the timber now in controvérsy from McBride and Petersen, and gave drafts which were not payable to McNatt. These drafts did not come into the hands of the plaintiff, and he sought to recover the timber. There was also testimony tending to show notice to Clarke Brothers of a claim to the property by the plaintiff. On behalf of the defendants there was testimony that the consideration for the entire timber had been paid to McNatt, and that nothing was due him on account of it when the sale was made to Clarke Brothers. There was also evidence conflicting in some respects with that of the plaintiff as to any agreed application of the proceeds of timber first to the account of E. T. McBride & Co. There was much other evidence which it is unnecessary to set out. The jury found for the plaintiff. The defendants moved for a new trial, which was refused, and they excepted.</p>

<p>1. Suit was brought for the recovery of personalty which was alleged to be of the value of $577.30, and the amount of hire claimed was $100, with no other allegation of damages. The undisputed evidence showed that the value of the property at the time of the conversion was $577.30. The pleadings of the plaintiff showed that at the time when, the suit was brought the property was of the same value. Bail process was sued out in connection with filing the suit; and on failure of the defendant to give bond, the plaintiff d'id so, and received possession of the property. It did not appear that the plaintiff elected to take-a money verdict alone. Held, that a verdict “for plaintiff for 125 with 7% interest,” if construed as a verdict in favor of the plaintiff for the property and also for $125 and interest, was not supported by the evidence; and in any event such verdict did not accord! with the evidence, and, in view of the pleadings and evidence, was vague and uncertain.</p> <p>2. Under the pleadings and evidence, the judge did not err in refusing to charge, on request, that “the plaintiff must clearly prove his title to the property in dispute; and if he can not do this, whether such inability arise from mingling of the goods or any other cause, the verdict must be for the defendant.”</p> <p>3. A timber lease which authorized the cutting and manufacture of lumber and shingles for one year, but which contained no other description of the timber or land included in the lease, except “all that tract or parcel of land known as lot 162% acres of lot 169' in the 6th district of Montgomery county, Ga.,” was too vague and indefinite, in point of description to be admissible in evidence as a muniment of title.</p> <p>4. Where a motion for a new trial was made, and thereupon an order was taken setting it for a hearing and allowing the movants 60 days within which to file a brief of the evidence, “which, may be approved at the hearing,” and granting leave to amend the motion and brief of evidence up to the time of the hearing, which might be had in term or vacation; and where the movants within 60 days made a bona fide effort to comply with such order and' filed a brief of the evidence, though it was not complete and perfect, on the hearing of the motion there was no error in allowing such brief to" be amended and perfected; and if in the opinion of the presiding judge this could better be done by substituting for the brief which had been filed another which covered the same ground, with additions and alterations necessary to make it a complete brief, he could permit this to be done, without specifically referring in his order of approval to the-brief which had first been filed, or requiring it to be incorporated or referred to in the substituted brief.</p>

<p>Equitable petition. Before Judge Seabrook. Effingham superior court. April 13, 1908.</p>

Trover. Before Judge Seabrook. Liberty superior court. February 20, 1908. Mary E. Dix brought suit against Charles Dix, to recover certain personal property, which had been set apart to her as a year’s support from tlie estate of ber deceased husband. The defendant was a son of the deceased by a former wife. On the trial the plaintiff introduced in evidence the proceedings of the court of ordinary, setting apart the property in dispute as a year’s support for ber.

<p>1. In a suit by an employee to recover damages for an alleged' wrongful discharge, where the employer pleaded justification because of the’refusal of the employee to obey a specified order given first in writing and afterwards repeated in parol, whether or not the plea was sustained would depend upon the duty of the employee to obey the order which was given and upon whether or not a refusal to do so authorized his discharge. Other possible reasons not expressed' in the plea, which might have authorized a discharge, can not be invoked.</p> <p>2. Some of the requests to charge were not adjusted to the pleadings and evidence, and some were argumentative in form. In so far as any of them embodied principles proper to be given in charge, they were covered by the general charge of the court.</p> <p>3. The portions of the charge to which exceptions were taken, when read in connection with the pleadings, the evidence, and the entire charge, are not subject to the criticisms made upon them.</p> <p>4. The evidence was sufficient to support the verdict, and no reason appears on any ground of the motion for a new trial why a reversal should be granted.</p> <p>5. Under the special facts of the case, the motion to award ten per cent, damages on'the ground that the case was brought to this court for delay is denied.</p>

<p>Action for malicious prosecution. Before Judge Worley. Gwinnett superior court. February 10, 1908.</p>

<p>Partition. Before Judge Worley. Gwinnett superior court. February 10, 1908.</p>

<p>1. An affidavit to obtain an attachment against a named corporation, stating that “it is an incorporation not incorporated by the laws of this State, but is transacting business within this State,” sufficiently states a ground for the issuance of an attachment under the Civil Code, §4527.</p> <p>?. The following allegations appear in an affidavit of illegality filed by the security: “The affidavit in attachment says that the Atlantic Coast Line Railroad is indebted, and further declares the said ‘Atlantic Coast Line Railroad or Railway Company is an incorporation not incorporated by the laws of this State, but is transacting business within this State;’ the bond in attachment is made payable to the Atlantic Coast Line R. R. Co.; the attachment is against the Atlantic ‘Coast Line R. R. Co.; the levy is made of the attachment on the property (as stated in the levy) of the Atlantic Coast Line Railway ■ Co..; the replevin bond is made by the Atlantic Coast Line1 Railrohd Company; the declaration in attachment is brought against the Atr lantic Coast Line Railroad, or Railway Company; the verdict is .written on the attachment; the judgment is against the Atlantic Coast Line Railway Company as principal, and ,T. J. Parramore as security; the execution is against the Atlantic Coast Line Railway Company, principal, and J. J. Parramore, security.” Held, that the variance in the names “Atlantic Coast Line Railroad Company” and “Atlantic Coast Line Rail-tom/ Company” is not a substantial one; and where it does not appear that sueh names are of different corporations, sueh affidavit of illegality by the surety to the levy of sueh execution on his property on the ground' of sueh variance should be dismissed.</p>

<p>Indictment for rape. Before Judge Hammond. Richmond superior court. March 13, 1909.</p>

<p>1. The presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last heard of as living.</p> <p>2. Where it is sought to raise a presumption of death, by reason of the absence of a person from his known place of residence or domicil for seven years without being heard from, by the testimony of a witness who merely makes inquiry to lay the foundation for such proof and who himself is not cognizant of any of the facts, the evidence must show that there has been an unsuccessful effort to find the absent person by search and diligent inquiry at his last known place of residence and among his relations or acquaintances, if any, and it must appear that the absent party has not been heard from for seven years or more by those who would be most likely to hear from him.</p> <p>3. Evidence of absence of a person from his original place of residence will not raise the presumption of death, where it appears that he has moved to another place and there located.</p> <p>4. Where a deed was executed by some of the children of a deeeasd person as his heirs-at-law, and it appears that there were other children and descendants of children, but it is sought to show that those who executed the deed inherited the entire estate by virtue of the death of the other descendants of the testator, presumed to arise from their absence unheard from for more than seven years, there must be some evidence as to their status when last heard from, in respect to being married or having other heirs.</p> <p>.5. Althougn plaintiffs may claim the right to recover land by virtue of prescriptive title and prior possession, as well as on account of a paper' chain of title, yet where it was necessary, in order to sustain such a chain, to show inheritance by certain persons from others, and the proof on that subject was inadequate at least as to some of them, a charge in reference to a presumption, of death, which was not properly adjusted to the evidence and which was calculated to mislead the jury, was erroneous.</p> <p>6. If a deed purports to be executed in the presence of, and is attested by, an officer authorized to make such attestation and another witness, and is recorded, presumptively the signature is genuine. But this may be disproved and' the signature shown to be a forgery.</p> <p>(a) Evidence that the person who purported to sign the deed could not write is admissible for that purpose, and is for the consideration of the jury.</p> <p>■(6) In such a case, if the jury believed from the evidence that the person whose name appeared to be signed to the deed in writing could not write, and therefore did! not in fact personally sign it, no presumption of law would arise that he had authorized some other person to sign it for him. One who sought to set up such fact would carry the burden of proving it. Atkinson, J., dissenting.</p> <p>7. In order for a deed to convey perfect title it must be signed by all the persons owning the land as tenants in common; but a deed which purports to convey the entire title may operate as color of title although it is not signed by all the owners; but as against the other owners it must be accompanied by adverse possession of such a character as would affect them.</p> <p>(a) The d'eed from certain persons purporting to convey as the heirs of Hiram Waller, deceased, did not on its face indicate a conveyance of a fractional part of the lot or less than the whole.</p> <p>B. The evidence did not authorize a recovery, in this action, of expenses of litigation against the defendant.</p>

<p>1. It appearing ■ that, the maternal grandparents of a child of tender years had taken charge of the child and carried it from the county of ' its mother’s 'domicile at the time of the latter’s death, the death of the father of the child antedating that of its mother, -and it further appearing that subsequently, as a result of habeas-eorpus proceedings instituted by the paternal grandfather of .the child, custody of the child was awarded to the maternal grandfather, and that the latter, while having custody of the child, made' application to the ordinary of the county of his residence for appointment as guardian of the person of the child, a finding against the ground of the caveat to such application for guardianship, on the ground that the ordinary of that county did nut have jurisdiction to pass upon the application, was demanded. - i</p> <p>2. An exemplification of the record in a habeas-eorpus proceeding instituted to recover the custody of the child referred to above was properly admitted in evidence to be considered solely in passing upon the question of the domicile of the child. -. ,. >:■</p> <p>3. The jury trying the case had upon them the duty of looking to the interest and advantages of the child, the guardianship of wlyjse person was involved in the case; and consequently evidence as to the financial condition of the applicant and his wife, who .were -the grandfather and grandmother of the child in question, was. not irrelevant, and was properly admitted for the consideration of the jury. .</p> <p>4. It was error for the court to permit a witness to testify that “Mr. and Mrs. Jackson [the applicant and his wife]- are proper parties to raise and bring up a female grandchild.” It was competent for, .the witness to'detail and describe the facts and circumstances which tended to show the fitness of the applicant for the guardianship of the child, but not to state'his opinion; the jurors■ should have been left to form their conclusions from the facts stated in.evidence, untrammelled';by the opinion of the witness himself.</p> <p>5. The will of the father of the child in question, which, had previously been admitted to probate, having been offered in evidence,' it was hot competent to collaterally attack the same. . . ,</p> <p>6. Testimony of the wife of the applicant; to the effect that her daughter “gave her [the child] to me,” was admissible for consideration by the jury in the trial of the issues in this case.</p> <p>f. Where the financial condition of the resident of any county in- this State is material to be considered, an exemplification of the tax digest, properly certified by the clerk of the court of ordinary, is admissible in evidence.</p> <p>8. An item of a will in the following language, “I hereby appoint'my father, C. 3ST,' Churchill, guardian of my child, to hold, control, and . manage the property given her during her minority; and' he shall not be required to give bond or security for the performance of such trust,” was 'properly held by the court below to fiavé the effect of appointing C. N. Churchill the. testamentary ^guardian of the property only, and not the person, of the child referred to.</p> <p>9. No other .reversible errors than those. which have been' ruled .upon above are'.made to appear in the record.</p>

<p>Action upon insurance policy. Before Judge Charlton; Chat-ham superior court. March '27, 1908. ' ■ .</p>

<p>1. The jury in the case of an appeal from the award of assessors in a statutory condemnation proceeding have no authority to give compensation in anything but money. A verdict which award's the landowner a sum of money, and also reserves to him the privilege of moving improvements from the right of way sought to be condemned, is erroneous.</p> <p>2. On appeal from the award of assessors in a statutory condemnation proceeding, the verdict should be for a given sum.</p> <p>3. The particular proposals and declinations of the respective parties in their unsuccessful negotiation to agree upon the amount of damages prior to the condemnation proceeding are irrelevant on the trial of an appeal from the award of the assessors.</p> <p>4. A charge which intimates an opinion as to the amount of recovery, where the evidence is conflicting, is erroneous.</p>

<p>Petition for injunction. Before Judge Brand. Jackson superior court. August 15, 1908.</p>

<p>Foreclosure of lien. Before Judge Freeman. Troup superior court. May 33, 1908.</p>

Action for damages. Before Judge Charlton. Chatham superior court. April 17, 1908. Way brought suit against the Southern Eailway Company for the loss of certain personal property. The evidence for the plaintiff showed the following facts; Through an agent he caused certain household furniture and personal chattels to be shipped from Watertown, New York, to Savannah, Georgia, consigned to himself. The initial carrier was the New York Central & Hudson Eiver Eailroad Company.

<p>1. Where a policy of fire insurance contained a stipulation that it should be void if the subject of insurance be a building on ground not owned by the insured in fee simple, but, at the time the application for insurance was made, the company, through its agent, knew that the applicant did not own the land on which the building sought to be insured was situated, the company, in defending an action on the policy, will be estopped from setting up the non-compliance of the insured with this condition of the policy.</p> <p>2. An agent of an insurance company, fully authorized to make out and issue policies of insurance, has power to employ clerks in the ordinary business of the agency; and if such clerk solicits insurance, and a policy of insurance is duly issued, knowledge of facts material to the risk, acquired by the clerk in the solicitation, and prior to the issuance of the policy, is notice to the insurance company.</p> <p>3. Reformation is not necessary to avoid the defeat of a policy of insurance on account of any matter in existence at the time of the issuance of the policy, with which the company is charged with knowledge. So where the duly authorized agent of an insurance company failed to note on the policy containing the stipulation specified in the first headnote that the building, which was the subject of insurance, was on leased land, the failure of the insured to read his policy, and! to observe the company’s omission in this respect, is not such laches as will defeat his recovery on the policy by destroying the estoppel of the defendant to dispute the validity of the contract of insurance.</p> <p>4. Where a tenant rents land from year to year under a verbal contract with his landlord, that in consideration of the payment of an annual rental the tenant may occupy the premises and erect thereon a building which is to be the property of the tenant and removable by him, and where such tenant erects a building and in his application for insurance notifies the authorized agent of the insurance company that the building is on “leased ground,” such information is sufficient to put the insurance company on notice of the character of his interest in the building, and effectual to estop the insurance company from setting up as a defense the stipulation in the policy that the contract of insurance was to be invalid if the building which was the subject of insurance was not on ground owned by the insured in fee simple.</p>

<p>1. As the “general grounds” of a/ motion for a new trial, complaining that the verdict is contrary to the evidence, without evidence to support it, etc., contain no recital of fact requiring certification by the trial judge, they need not be approved by him. in order to be considered (Harris v. State, 120 Ga. 196) ; and therefore the lack of such approval furnishes no cause “to strike” the original motion for a new trial, or the amended and properly approved motion therefor, or to dismiss the writ of error.</p> <p>2. Where there is no affirmative defense, or no plea in the nature of confession and avoidance, the burden of proof is upon the plaintiff, and he is not entitled to recover, unless, in the opinion of the jury, the preponderance of the evidence is in his favor. The charge excepted to was not in harmony with this principle, and, under the facts of the case, placed upon- defendant an unauthorized burden, and was cause for a new trial.</p>

<p>Complaint for land. Before Judge Felton. Crawford superior court. July G, 1908.</p>

<p>1. Watkins signed and delivered to Mallet a writing as follows: “I agree to sell W. M. Mallet 25 bales of middling cotton at 7% ets., delivered at his warehouse during November and October, 1900. 4/2/1900. Jackson, Ga. B. E. Watkins.” Such writing, not showing any consideration to support the promise of Watkins, did not of itself bind him to deliver the cotton, or make him liable in damages for a failure to do so.</p> <p>2. A charge must be adjusted to the evidence; and there being no evidence of any promise on the part of Mallet to buy the cotton, other than a written promise delivered to Watkins, the court did not err in instructing the jury that the plaintiffs could not recover unless Mallet executed and delivered to Watkins such written promise, or in failing to charge what would be the effect of an oral promise on the part of Mallet to buy the cotton.</p> <p>3. The evidence was sufficient to authorize the verdict, and the court did not abuse its discretion in denying a new trial.</p>

Action upon insurance policj7. Before Judge Worley. Taliaferro superior court. February 26, 1908. Evans brought suit upon a fire-insurance policy, against the Athens Mutual Insurance Company. The substance of the petition was as follows: On December'4, 1906, one Quinn was the agent of the defendant company, and authorized in its behalf to make contracts of insurance, and to sign and issue policies of insurance for it.

<p>1. Where the wife, on account of the misconduct of the husband, obtains a decree granting her a divorce and awarding to her the custody of their minor child, and no question as to the support of such child by the father has been made or passed on,- the father is not relieved of his legal obligation for a proper support of the child. If he fails or refuses to discharge this obligation, the mother, in an original action, may recover of the father the amount of expenditures made by her after such decree, for a proper support of such child.</p> <p>2. The petition was subject to special demurrer on the ground that it did not set forth with sufficient particularity the expenses incurred by the plaintiff in the support of the child.</p>

<p>1. Where a suit was brought for a total divorce, and on the first trial the presiding judge directed a verdict for the plaintiff, the defendant could bring such ruling to this court for a review by direct' bill of exceptions.</p> <p>2. If the judge of the superior court can in any case direct the jury to find a verdict for a total divorce, it is erroneous to do so where the ground on which the suit is predicated is desertion of the husband by his wife, and the defendant pleads and introduces testimony tending to show that a separation was rendered necessary by reason of cruel conduct on the part of the husband.</p>

<p>Condemnation of right of way. Before Judge Whipple. Talbot superior court. February 22, 1908.</p>

<p>1. If the act of August 7, 1906 (Acts 1906, p. 121), providing for the change of county lines lying within the limits of incorporated towns and cities, by holding an election in such municipalities to determine within which of the counties the corporate limits should be entirely included, should be held to apply to the changing of county lines within the limits of municipalities which are county-sites, it would be violative of the constitutional provision that “No county-sit'e shall be changed or removed, except by a two-thirds vote of the qualified voters of the county, voting at an election held for that purpose, and a twó-thirds vote of the General Assembly.” Civil Code, §5927.</p> <p>2. In view of the rule that if an act of the legislature is subject to two constructions, one of which would1 make it constitutional, and the other of which would render it'unconstitutional, the former will be adopted, and also the rule, that usually general words in a statute are not treated as including the government or affecting its rights .unless such an intent appears from the statute itself, the act of 1906 referred to in the preceding headnote is held not to apply to changing county lines lying within the limits of a municipality which is a county-site.</p> <p>6, Where a legislative act is complete, but it provides for an election in a particular municipality in order to determine whether a change of a county line shall be made in accordance with its provisions, such an election is not legislative in its character, and an injunction to prevent its being held or carried1 into effect will not be denied on the ground that it is an effort to enjoin legislation.</p> <p>4 Where it is sought to hold an election as being under the provisions of the act of 1906 (supra), and change a county line in accordance with the result thereof, without authority of law for so doing, one of the counties, a portion of the territory of which is involved in the attempted change of the county line may bring an action to enjoin it. ' The county commissioner of DeKalb county has authority, in the name of the county, to institute such a suit as that just mentioned.</p> <p>5. Where by an act of the legislature the corporate limits of a county-site were so extended as to include territory lying in an adjacent county, and it was sought to change the county line so as to include the entire municipality in one or the other of the two counties, a citizen and taxpayer of the municipality thus extended could institute a proceeding to enjoin the election from being held and the county line from being changed in accordance with its result. The evidence showed that the plaintiff Rivers had such an interest as entitled him to file the . petition in this case.</p> <p>6. While generally the holding' of an election is a political matter and will not be enjoined, and a court óf equity will not ordinarily enter into a consideration of the details or irregularities in an election, and take the place of the ordinary methods of contesting the result, yet where it is sought, without authority of law, to hold a municipal election for the purpose of changing a county line and to carry into effect the result of the election so held, injunction will be granted at the instance of one entitled to institute a proceeding, for that purpose.</p> <p>7. It does not appear that the acts sought to be enjoined have already been completed. If it may be inferred from the record that the election has been held, other things are necessary to be done in order to change the county line under the terms of the act of 1906, by virtue of which • it was sought to hold' the election. Injunction, therefore, can not be denied on the ground that the acts sought to be enj.oined have already been done.</p>

<p>1. Thd'evidence was not sufficient to authorize the verdict finding a total divorce in favor of the husband.</p> <p>2. A decree for alimony of a sister State, providing for future monthly payments, which by its own terms is subject to be revoked or modified, as to the amount to be paid thereunder, by the court rendering such decree, is not such a decree as is enforceable in this State under the full faith and credit clause of the constitution of the United States, or upon principles of comity.</p> <p>3. Upon the trial of a suit for divorce, it is the duty of the court, and not that of the jury, to award the custody of the minor children of the marriage.</p> <p>A While a trial judge may, within the restrictions prescribed by the Civil Code, §5331, direct a verdict, this court will in no case reverse a refusal to do so.</p>

<p>Complaint. Before Judge Fite. Dade superior court. April 13, 1908.</p>

<p>1. To entitle an employee of a railroad company, injured by the negligence of a coemployee, to recover damages of the railroad company, it must appear that he was without fault or negligence appreciably contributing to the injury.</p> <p>2. In a suit against a railroad company by a brakeman, to recover damages for injuries received from being thrown from the pilot of an engine where he was riding, by the alleged negligent manipulation of the engine by the engineer, where there is evidence tending to show that the plaintiff was riding on the pilot in violation of a rule of the company at the time of his injury, a charge, “If you find from the evidence that the plaintiff was upon the pilot of the engine in violation of the rule, but Jf you further believe that he was standing upon the pilot in safety, and that his presence there was known to the defendants, and if you further believe that the defendant Hopkins, representing the defendant railway company, with knowledge of the plaintiff’s situation, so manipulated his engine as to ■ give the same an unusual jerk as described in the declaration, and' if you further believe that such' conduct on the part of the defendant was negligent, and that thereby the plaintiff was injured, and if you further believe that the plaintiff could not by the use of ordinary care have avoided the con- ' sequences to himself of such negligence of the defendants, then the plaintiff would be entitled to recover,” is erroneous, because the instruction eliminates inquiry by the jury as to whether or not the plaintiff, in riding on the pilot at the time of the injury in violation of a rule of the company, was without fault or negligence appreciably contributing to his injury.</p>

<p>Indictment for murder. Before Judge Freeman. Troup superior court. December 15, 1908.</p>

Complaint; distraint; foreclosure of lien; trover. Before Judges Spence. Worth superior court. February 12, 1908'. Bowman was the tenant of Gillis during the years 1887 and 1888, and in the course of their dealings with each other they car-, ried mutual accounts. , In April, 1889, Bowman brought suit cm account against Gillis for $443.50. In September of the same-year Gillis sued out a distress warrant against Bowman for rent-, due and to become due, amounting to $317.50.

Complaint. Before Judge Roan. DeKaib superior court. April 25, 1908. Edward O. Miles & Company brought suit against the Kennesaw Guano Company for $888.05 principal, on an account for tankage delivered, as stated in an itemized account attached to the petition.

<p>1. There was no such variance between the allegata and probata as to require the grant of a new trial.</p> <p>2. If a creditor receives promissory notes under an agreement to collect them and apply the proceeds to the payment of the debt, he is bound to use ordinary care and1 diligence in making such collection, and if any loss should happen to the pledgor by reason of a want of such care and diligence, the law will compel the pledgee to make good the loss so resulting.</p> <p>3. If promissory notes are deposited with a creditor under an agreement of the character indicated in the preceding headnote, and they are converted by the creditor, this does not conclusively entitle the debtor to a credit of the face value of the collateral, but to an amount which represents the actual damage which he has sustained by such conversion.</p> <p>(a) If promissory notes are converted, and damages are claimed on account thereof, the amount of principal and interest at the time of conversion appearing from the notes themselves to be owing and unpaid, and the interest upon that aggregate from thence to the trial, is prima facie the measure of damages, if the person setting them up is entitled to full recovery of the value of the notes. The converter has the right to show,' in reduction, the fact of payment in whole or in part, the inability of the makers to pay wholly or partially, a release of the makers from their undertaking, the invalidity of the notes, or -other matter which will legitimately affect and1 diminish their value.</p> <p>4. While the evidence was conflicting, there was sufficient to sustain the contentions of the defendant, and there was no error in overruling the motion for a new trial.</p>

<p>Petition for injunction. Before Judge Brañd. Jackson superior court. December 31, 1908.</p>

Action for breach of warranty. Before Judge Eelton. Houston superior court. April 8, 1908. The plaintiff’s suit for a breach of warranty of title, expressed in a deed to land executed by the defendant, was dismissed on demurrer, and he excepted. From the allegations of the petition as amended it appears that by his last will and testament Williamson Mfmms devised the land in controversy to his wife for life,, with remainder to his children.

<p>1. The motion to dismiss is controlled by the recent case of Mitchell v. Masury, 132 Q-a. 360 (64 S. E. 275).</p> <p>2. A deed from a grandfather, to his granddaughter, which recites that the grantor, “for and in consideration of work and labor done and to be done, consisting of taking care and caring for the [grantor] for and during his natural life, upon the faithful performance of said duty upon her part this obligation is to be of full force and virtue, otherwise this deed to be and the above and foregoing to be null and void, the receipt whereof is hereby acknowledged, does hereby sell and convey unto the [granddaughter], her heirs and assigns,” a certain tract of land in fee simple, conveys an estate in fee on a condition subsequent.</p> <p>S. ^Forfeiture resulting from a breach of a condition may be released or waived, and a waiver may be either express, or implied from the cir- ' cumstances.</p>

<p>Equitable petition. Before Judge Wright. Eloyd superior court. August 3, 1908.</p> <p>Bobert W. Graves, doing business as Bobert W. Graves and Company,. filed his petition against W. N. Horton. He alleged in substance as follows: “On the — day of August, 1905,” John M. Smith bought of the plaintiff one car-load of coal, which was delivered on September 1. “A few days thereafter” Smith bought another car-load of coal of the petitioner, which was delivered on September 9. The purchase-price of the two cars aggregated $131.80. Smith bought the coal with the avowed purpose of using it “at his own gin in the fourth ward of the city of Borne,” and stated to the plaintiff that he would haul it with his (Smith's) own teams. The plaintiff sold the coal in good faith, believing that Smith owned the gin, as he claimed, when he bought the coal. On or about October 25, 1905, proceedings in bankruptcy were instituted against Smith, and the plaintiff was listed among his creditors. After these proceedings were filed Horton produced a deed to the gin property above referred to, and it covered all the machinery and personal effects on the property. The deed purported to have been made on April 4, 1905, with an ostensible consideration of $2,000, and purported to convey the undivided half interest of Smith in the gin property, and the undivided half interest of Smith in certain other real estate in the city of Rome. Smith is insolvent and has been so since the date of this deed, being also insolvent at the time he purchased the coal. Horton knew all these facts. Smith has been adjudicated a bankrupt, owing debts to the amount of approximately $15,000, with assets of about $1,100, which he asks to be set aside to him as a homestead. Plaintiff is unable to collect of Smith for the coal sold him. He charges, that Smith and Horton entered into a combination for the purpose of defrauding the creditors of Smith, that the sale of the land was a sham, that the consideration in the deed was fictitious, and that it was not executed on the 4th day of April as appears on its face, but was executed “after the 15th day of August, 1905.” Smith returned “said......for taxes for the year 1905,” late in the summer, and made the usual affidavit that the property belonged to himself and Horton as partners. The deed was withheld from the records by Horton, so that Smith might obtain credit and transmit the proceeds to Horton for their joint and several benefit, and to defraud Smith’s creditors by -taking away from them any chance to collect their debts. Throughout the year 1905, and up to the time proceedings in bankruptcy were instituted, Smith remained in possession of the property. He not only bought the coal to run the gin and the sawmill eonnnected with it, but during the months óf August, September, and October, besides other months, he purchased hundreds of dollars worth of other merchandise of various kinds on a credit, having it charged to himself, and applied it to the improvement of this gin and mill property. Horton knew all these facts, and he acquiesced in and encouraged them. Though HoTton enjoys the benefits of these debts, he now disclaims all liability on any of them. Since bankruptcy proceedings have been instituted against Smith, Horton has filed deeds, purporting to have been made in the early part of the year 1905, to all of Smith’s real estate “of any considerable value” in Floyd county, this being the first act on the part of Horton to put the public and Smith’s creditors on notice of his ownership of Smith’s assets. One of the deeds referred to from Smith to Horton purported to have been executed on March 11, 1905, for a consideration of $1,521, and conveyed an undivided half interest in certain farm property in Texas Valley district of Floyd county. This deed was withheld from the records by Horton with the fraudulent purpose herein referred to, until the 13th day of November, 1905, some time after Smith was adjudicated a bankrupt. Sin.ee the dates on which these deeds purport to have been made, Horton has advised the public and Smith’s creditors to extend Smith credit, as Smith had' plenty of real estate to pay all his debts and have money besides, and that he was worthy of the highest credit. The plaintiff has made demand of Horton for the indebtedness due to him, and Horton refuses to pay it.</p> <p>By amendment the plaintiff alleged substantially as follows: In the negotiations for the purchase of the coal Smith represented to the plaintiff that he was the proprietor of the gin property for the use of which the coal was bought, and it was sold on the faith thereof. Before Horton made it known that he had taken over from Smith the gin property, a petition in involuntary bankruptcy was filed against Smith, and on November 2, 1905, he was adjudicated a bankrupt. Smith and Horton, in contemplation of the bankruptcy proceedings, on the 1th day of October, 1905, sold the gin property to the Georgia Cotton Oil .Company, an innocent purchaser. At that time the deed from Smith to Horton had not been made public, and Smith was actively engaged in the consummation (of the sale to the Georgia Cotton Oil Company, which sale to an innocent purchaser was made in order to place the property, out of which he expected to realize his debt, beyond the reach of the plaintiff. Plaintiff does not sue Smith in this case, because he is a bankrupt, and because of the facts set out in the petition and amendment. He charges that Smith was used by Horton in the purchase of the coal, keeping back in a secret manner Horton’s interest in and relation to the purchase.</p> <p>Upon motion the case was dismissed on the ground that no sufficient cause of action was alleged. The plaintiff excepted.</p>

<p>1. A municipality can not exercise the right of eminent domain unless the power to do so is conferred upon it in its charter or in some amendment thereto, expressly or by necessary implication.</p> <p>2. Neither in the act approved August 29, 1879, nor in that approved October 21, 1891, is there to be found any language which, expressly or by necessary implication, confers upon the City of Eatonton the right to condemn or take private property for the purpose of laying and constructing sewers thereon.</p>

<p>Illegality. Before Judge Worley. Glascock superior court. April 14, 1908.</p>

<p>Complaint. Before Judge Worley. Glascock superior court. ■June 27, 1908.</p>

<p>Complaint for land. Before Judge Wright. Walker superior ■court. February 27, 1908.</p>

<p>1. A testatrix, who died' leaving two sons, disposed of her property by will as follows: (1) “I give, devise, and bequeath to my eldest son, Osear B. Knowles, one feather-bed.” (2) “I give, devise, and bequeath to the wife and legal heirs of James N. Knowles, my youngest son, all my household furniture, except the feather-bed above willed to Oscar B. Knowles, also all my stock consisting of horses, mules, cattle, and . hogs, that I may be in possession of at the time of my death, also all of my lands [describing them]. In the event James N. Knowles dies without wife or heirs, then the above property I will and bequeath to the heirs of Oscar B. Knowles. Lastly I do nominate and appoint my son James N. Knowles to be the executor of this my last will and testament.” At the time of making the will, and of the death of the testatrix, the younger son was unmarried. Subsequently he married, and afterwards the will was probated in solemn form, and letters testamentary issued to him. Held, that the testamentary scheme contemplated that the property devised by the second item should be held by the executor until the son James N. married, when the title thereto should vest in the wife, subject to be shared' by future-born children of James N., and defeasible upon the contingency of the death of James N. without wife or children, with remainder over, upon the happening of such contingency, to the children of 0.' B. Knowles.</p> <p>2. As it is the duty of an executor to administer the undevised as well as the devised property of a testator, a judgment of the court of ordinary specifically declaring a partial intestacy as to property devised by a will probated in solemn form, and in the hands of the executor, and appointing an administrator to administer the property adjudicated as not passing by the will, without removing the executor, is void on its face;</p>

<p>Action for damages. Before Judge Martin. Muscogee' superior court. April 17, 1908.</p>

Complaint. Before Judge 'W’orrill. Eandolph superior court. May 13, 1908. The /Etna Indemnity Company of Hartford, Connecticut, brought an action against W. T. Jay, W. J. Oliver, and J. W. Stanford.

<p>Appeal. Before Judge Charlton. Chatham superior court. June 8, 1908.</p>

<p>Action for breach of contract. Before Judge Charlton. Chat-ham superior court. February 15, 1908.</p>

<p>Action for damages. Before Judge Worley. Taliaferro superior court. February term, 1908.</p>

<p>A, a relative of B, but not his heir at law, was the chief beneficiary and sole executor named in the will of B, and the grantee in a deed from B, conveying valuable property. After the death of B the will was propounded for probate, and the heirs of B filed a caveat thereto on. the ground of lack of testamentary capacity in the testator, undue influence exercised upon B by the named executor, and other grounds. They also filed an equitable petition attacking the deed upon grounds similar to those set forth in the caveat to the will. C, also a relative of the deceased', but not an heir at law, knew of facts tending to support the grounds of the caveat and the attack made in the equitable petition upon the deed. B and C entered into an agreement wherein it was stipulated that 0 would assist B in the litigation referred to, to the “extent of remaining non-committal,” and “not to volunteer any information or assistance to the other side who were contesting the will,” and A agreed, upon the termination of the litigation in the event the issue of the same was favorable to him, to convey to C a certain valuable plantation or to pay him the value thereof. The litigation resulted favorably to A. A failing to convey to 0 the plantation or to pay him the value thereof, C brought suit to enforce the contract. Held, that the court did not err in sustaining a general demurrer to the petition upon the ground that the contract, to enforce which the suit was brought, was void as being contrary to public policy.</p>

Action for damages. Before Judge Wrigbt. Eloyd superior court. August 5, 1908. Barton brought his action against the Southern Railway Company. The defendant filed .a general demurrer, which wa,s overruled. After the plaintiff had presented his evidence and closed, the court sustained a motion for nonsuit. Both of the parties excepted.

<p>Complaint. Before Judge Lewis. Jasper superior court. February 18, 1908.</p> <p>S. E. Blackwell brought suit against Banks Brothers for $975. As amended the petition alleged, in brief, as follows: Defendants employed plaintiff to make a purchase of certain rights, equities, and title of one Peteet in two certain described tracts of land. It was agreed that in the event he could make the purchase for the sum of $3500, he was to have compensation in one of two ways, subject to the election of one of the defendants: first, he was to be allowed a half interest in the property for $1,350, and was to be allowed a reasonable time in which to pay one half of the purchase-price. This, however, was subject to sale for a profit as set out in the next portion of the agreement. Second, the acting member of the firm named reserved the right to sell the property at a profit, and in the event he sold he was to give to the plaintiff one half of the profits. Shortly thereafter the defendant who acted for the firm advised the plaintiff that it was better to sell for a profit, and that he intended to do so, to which, the plaintiff consented, thereby agreeing to accept one half of the; profits as compensation for the services performed. The plaintiff' performed his part of the contract, made the purchase at the-agreed price, and the entire right and title of Peteet was trans-ferred -to the acting member of the defendant firm. The defend-, ants, through such member, have sold all the land except about. 100 acres. The profit on the Sales is $1,950, one half of which ($975) is due to the plaintiff. The unsold 100 acres represents •a profit, and is easily’ worth' $800. The plaintiff prayed judgment for $975 as his share in the accrued profits, and also for $400 as being one half the value of the land unsold. The evidence on behalf of the plaintiff tended to support the allegation of the making of the contract, the performance of his part thereof, and the sales as alleged, but showed that the sales were made partly on a credit, and a considerable portion of the purchase-money had not become due and payable at the time of the suit or at the time ■of the trial. The amount shown to have been received in cash was not enough to reimburse the defendants for the purchase-money paid by them. The court granted a nonsuit, and the plaintiff excepted.</p>

<p>Appeal. Before Judge Charlton. Chatham superior court. May 13, 1908.</p>

<p>Complaint. Before Judge Lewis. Putnam superior court. July 1, 1908.</p>

<p>A provision in a contract for the-construction of a waterworks system for a city, that if the same is not completed by a fixed date the company undertaking the construction 'of the system shall pay a certain amount for each day’s delay after the time fixed, should be construed as one for stipulated damages and not as a penalty, — it appearing that it would be difficult, if not impossible, to ascertain the actual damages arising from such delay, and there being nothing to show that the amount stipulated is unreasonable.</p>

<p>Action for damages. Before T. W. Skelly, judge pro hac vice. Gordon superior court. August 25, 1908.</p>

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

<p>Claim. Before Judge Wright. Floyd superior court. May 4, 1908.</p>

<p>1. The petition set forth an action ex contractu.</p> <p>2. Under the pleadings and the evidence, there was no error in the charges complained of, and referred to in the second division of the opinion, requiring a new trial.</p> <p>3. Where the owner of live stock and a common carrier entered into a contract of carriage containing the provision that “As a condition precedent to any right to recover any damage for loss or injury to said live stock, notice in writing of the claim therefor shall be given to the agent of the carrier actually delivering said live stock wherever such delivery shall be made, and such notice shall be given before such live stock is removed or is intermingled with other live stock,” and upon the trial of a suit for a breach of such contract for the value of some of the live stock that were killed', the proof shows that such stock were killed and were never actually delivered to the consignee, or removed by him or intermingled with other stock, it was not error to fail to charge the above-quoted provision of the contract, notwithstanding the plaintiff also claimed damages for injuries to other stock included in the contract of shipment which were delivered to himself as consignee, the court having instructed the jury that there could be no recovery as to the latter.</p> <p>4. The charge of the court in reference to the right of the plaintiff to recover the value of the dead1 bodies of the cattle killed was not, in view of the entire charge, error requiring a new trial.</p> <p>5. The evidence was sufficient to support the verdict, and the court did not abuse its discretion in refusing a new trial.</p>

<p>1. While the presiding judge would have been authorized to grant a continuance, it can not be held that, under the showing and counter-showing, he abused his discretion in refusing to do so.</p> <p>2. Where a motion was made for a continuance on the ground of the illness. ' of the mother of the leading Counsel for the defendant, and was overruled on the showing and1 counter-showing made, the production, on the hearing of a motion for a new trial, of the affidavits of such leading attorney and of another witness (no affidavits by them having been offered when the application for a continuance was made, and no reason being shown for the omission) will not require a reversal because of the overruling of the motion for a continuance.</p> <p>3. The allowance of the amendment to the petition did not furnish ground, for a motion for a new trial; nor is a reversal required on any ground duly made and urged against the amendment.</p> <p>4. There was no error in refusing to grant the second motion for a eontinu-anee, made after the allowance of the amendment to the petition.</p> <p>5. The motion for a nonsuit was properly overruled.</p> <p>6. Where a petition, in an action against a railroad company for a personal injury, alleged that at the point in the limits of an incorporated town where the injury occurred, and in the immediate vicinity, the defendant’s, tracks, road-bed, and right of way were much traveled and frequented by the public, within its knowledge and that of its agents, an inquiry of a. witness as to the extent to which those tracks and the spaces between them at that place were used by members of the public in walking, and the answer that they were used a great deal, and that almost everybody who came in from that side of the town used them, were not subject to the objection that the witness was asked to state a conclusion and not a. fact.</p> <p>7. Where a plaintiff had suffered the loss of both legs by reason of a personal injury on a railroad, and testified, on the trial of a suit because of it, that he could walk a little on his knees and that he also used a rolling-chair, there was no error in permitting him to walk before the jury and exhibit to them the loss of his limbs and the effect thereof on his ability to walk.</p> <p>8. Where various witnesses had been examined by both sides as to the extent of the use made by the public of railroad tracks and the intervening and surrounding spaces as a passway, a general motion “to rule out all the testimony that has been introduced by both sides in connection with people walking anywhere there except on that line,” without pointing out any particular evidence or the testimony of any particular witness, as subject to objection in that “connection,” was too vague and uncertain, and there was no error in overruling it.</p> <p>9. Where authorized by the pleadings and evidence, there was no error in charging that if there was a failure to comply with the law with respect to keeping engines and ears under control and' ringing the bell at public crossings, while such failure would not within itself amount to such negligence as to become the basis of a recovery, yet if the plaintiff was injured within four hundred yards of a public street crossing, the jury might consider such failure to check or give the statutory signal as a circumstance in connection with all the other evidence in the case in determining whether the defendants were negligent, or not, the judge charging also correctly on the subject of negligence generally as applicable to the case made.</p> <p>(a) The pleadings and evidence in this case authorized such a charge.</p> <p>10. The plaintiff in a case involving permanent injury having introduced in evidence the table of life-expectancy contained in 70 Ga. 844, et seq., but. not the annuity table, a portion of the charge, when considered with the entire charge as to damages, did not furnish ground for a new trial as failing to instruct the jury how to use such tables, and therefore being-calculated to mislead them to the prejudice of the defendant, which part, of the charge was as follows: “The plaintiff has introduced in evidence-before you a mortality table which you may consider upon the question of how long you believe the plaintiff would' have lived, in awarding damages for a permanent physical injury in this case. You may consider the length of time the plaintiff would have lived, and you may consider also the extent to which his physical power has been impaired or reduced, if any. The value of plaintiff’s services, however, up to his twenty-first year could not be allowed by you.”</p> <p>11. Some of the requests to charge were properly refused as not correctly stating principles of law applicable to the ease. In so far as any of them embodied principles which were legal and pertinent, they were sufficiently covered by the general charge, so that the failure to give them did not require a new trial.</p> <p>12. There was sufficient evidence to authorize a recovery by the plaintiff; and while the verdict was large, in view of all of the facts of the case, the extent of the injury, the absence of error in rulings of law, and the approval of the presiding judge, this court will not grant a new trial on that ground alone.</p>