Volume 133 — Georgia Reports

<p>Injunction. Before Judge Pendleton. Fulton superior court. December 7, 1908.</p>

<p>Complaint for land. Before Judge Hammond. Burke superior court. May 2, 1908.</p>

Action for damages. Before Judge Cann. Chatham superior court. December 21, 1907. cited, on duty to furnish safe place: Civil Code, §2611; 118 Ga. 87; 121 Ga. 791; 127 Ga. 610; 1 Ga. App. 403; 2 Ga. App. 308. Exclusion of testimony: Civil Code, §5176; 77 Ga. 202; 92 Ga. 730. Negligence of fellow servant: Civil Code, §§2297, 2323; 117 Ga. 414. Presumption on proof of injury: Civil Code, §2321; 122 Ga. 664; 124 Ga. 679; 126 Ga. 710; 1 Ga. App. 88.

<p>Action for damages. Before Judge Fite. Murray superior court. February 17, 1908.</p>

<p>Complaint for land.' Before Judge Fite. Bartow superior court. January 17, 1908.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. April 27, 1908.</p> <p>See, in addition to citations in the opinion, 7 Ga. 190; 53 Ga. 395; 69 Ga. 345; 89 Ga. 251, 799; 78 Ga. 461; 48 Ga. 481; 57 Ga. 484; 80 Ga. 150; 17 Ga. 103; 21 Ga. 548; 104 Ga. 599; 120 Ga. 1012.</p>

<p>Injunction. Before Judge Ellis. Eulton superior court. October 30, 1908.</p> <p>Cited by counsel (beside authorities cited in the opinion) : Civil Code, §§3668, 3672-3675; 69 Ga. 656; 112 Ga. 498; 9 Cye. 525 et seq.; Clark on Contracts, 447, 449, 450, 453; 146 Mass. 469 (16 N. E. 299, 4 Am. St. R. 339); 193 Mass. 351; 97 Ind. 66 (49 Am. R. 427); 165 N. Y. 551; 65 App. Div. (N. Y.) 276; 116 Fed. 310; 120 Fed. 418; 22 Ga. 541; 15 Am. R. 152.</p>

<p>1. Tlie wife having brought her libel for divorce and permanent alimony against the husband by petition including a prayer for temporary alimony and attorney’s fees, the judge was authorized, upon hearing at chambers, to grant to the wife temporary alimony and attorney’s fees.</p> <p>2. Affidavits submitted on the hearing should be incorporated in the bill of exceptions, to review the grant of temporary alimony and attorney’s fees, or be attached as an exhibit thereto duly and properly identified, or be embodied in the approved brief of the evidence and brought up as a part of the record.</p>

<p>1. It is error for the court to instruct the jury that a common carrier is under the duty to furnish a safe place for passengers to alight and such place as it is able to furnish.</p> <p>2. Where a passenger was carried by a railroad company to the station to which he had a ticket, and he remained on the train for the purpose of going beyond such station to a place on the road at which such train stopped to allow passengers to disembark, to which place he had no ticket, held: (a) Whether he sustained the relation of passenger after the train left such station did not depend upon the knowledge of the conductor that he was on the train after it left such station, or whether the conductor could have discovered his presence on the train by the exercise of extraordinary care. (Z>) If such person remained on the train after it left the station to which he had a ticket, with a bona fide intention and present ability to pay cash fare to the place to which he intended going, he sustained to the carrier the relation of passenger while thus on the train, and the carrier owed him the duty due by it to a passenger; but if he remained on such train without such ability and intention, he did not sustain such relation, but-was a trespasser, and the carrier only owed him the duty due to a trespasser.</p>

<p>1. Where a defendant in a dispossessory-warrant proceeding bargained with a third person for the purchase of the land in question, and the plaintiff, at his instance, paid the purchase-money for him, and took a deed from the owner of the land to secure the payment by the defendant of the debt thus created, agreeing to convey the land to the defendant upon’his paying such debt, and this debt has been paid as the contract between plaintiff and defendant provided, such, facts, when properly pleaded and proved, not only constitute a complete defense to the dispossessory-warrant case, but also entitle the defendant, ■ upon proper prayer therefor, to a decree for specific performance of the plaintiff’s promise to convey the property to him.</p> <p>2. It is permissible to show by parol evidence the consideration for a deedj and a deed, though absolute upon its face, may be shown by parol evidence to have been intended by the parties as security only, where the grantee has not taken possession of the property.</p> <p>3. In the case indicated in the first headnote, it is permissible for the defendant to prove by the landowner the parol agreement between them with reference to the sale of the land, although it was not in the plaintiff’s presence, when it is shown that the plaintiff was informed of the same and that both he and the landowner were acting thereon when the deed was made to him.</p> <p>d. There was sufficient evidence to warrant the verdict.</p>

<p>Attachment. Before Judge Seabrook. McIntosh superior court. August 15, 1908.</p> <p>Cited on payment under duress: Ga. B. 126/717; 123/655; 122/812; 115/864; 111/412; 94/672; 90/698; 81 N. W. 494; 114 Mass. 364 (19 Am. E. 368); 68 Mich. 263 (13 Am. St. E." 339) ; 10 Am. & Eng. Ene. L. (2d ed.) 328.</p>

<p>1. The evidence was sufficient to authorize the jury to find that the mother of the plaintiff's, under whom they claimed, acquired a good prescriptive title to the property sued for, by reason of her adverse possession thereof for seven years under color of title.</p> <p>2. If the administrator of a deceased eotenant sells and makes to the purchaser a deed to the entire property, and one claiming under such purchaser holds possession thereof under a duly recorded deed conveying the entire property, not as a cotenant but as sole owner of the entire property, there is an actual ouster of the other cotenants, and the latter' have the right to sue for the possession of their interest.</p> <p>3. There was evidence sufficient to authorize the jury to find the rental value of the property exclusive of improvements placed thereon by the defendant.</p> <p>4. There was no error in the charge referred to in the 4th division of the opinion, of which complaint was made.</p> <p>5. Declarations of one in possession of land in favor of his own title are admissible to prove that such possession was adverse.</p> <p>6. Declarations in disparagement of his own title by one in possession of land, under whom the defendant in a statutory complaint for land holds, are admissible in evidence in favor of the plaintiff upon the trial of such ease.</p> <p>7. Where the defendant in a statutory complaint for land in his answer only seeks to set off against mesne profits the value of improvements placed on such land by him after he went into possession, the plaintiff is not entitled to recover mesne profits antedating the time when the defendant went into possession and' was entitled to receive the 'profits of the land.</p>

<p>Equitable petition. Before Judge Worrill. Early superior court. February 8, 1908.</p>

<p>Injunction. Before Judge Littlejohn. Sumter superior court. December 10, 1908.</p> <p>The nuisance complained of consisted in the use of a steam traction engine for drawing from two to four trucks and wagons loaded with lumber, upon the public highway from a sawmill into the city of Americus, a distance or six or seven miles. There was conflicting testimony as to whether this use of the public road was extraordinary and unusual, and as to whether the defendant acted by permission of the county authorities. The court held that such use constituted a public nuisance, and granted an injunction against its continuance.</p>

<p>A bill of exceptions, assigning error on a final judgment, was filed in the office of the clerk of the superior court, by delivering it to a deputy clerk, wlio made thereon an entry of filing on September 2, 1908. It was not filed in the office of the clerk of the Supreme Court until February 20, 1909; after the circuit to which the case would have belonged had been concluded, and after the docket for the entire term had been closed. It was then docketed with the cases of the next term. The clerk of the superior court, in transmitting the record, certified that it had not been sent up in time because the bill of exceptions, when filed in his office by his deputy, was mislaid by the latter, and no one else in the office knew of the filing until counsel for plaintiff' in error called the attention of the clerk to it a few days before its transmission; that the deputy clerk was a very sick man and was not on duty then, but was sitting around the office; that his mind was not sound then; and that he afterwards died. Held, that the case, when reached at the second term of the Supreme Court, must be dismissed and stricken from the docket on motion.</p>

<p>1. Tlie judge did not abuse his discretion in refusing to grant an unconditional injunction.</p> <p>2. The assignments of error relating to the admission of testimony were not argued in the briefs, and are treated as abandoned..</p>

<p>Equitable petitiom Before Judge Charlton. Chatham superior court. August 4, 1908.</p>

<p>Indictment for murder. Before Judge Gilbert. Harris superior court. May 8, 1909.</p>

<p>Indictment for murder. Before Judge Martin. Laurens superior court. April 10/1909.</p>

<p>Indictment for murder. Before Judge Bawlings. Washington superior court. April 29, 1909.</p>

<p>Indictment for murder. Before Judge Roan. Fulton superior court. April 4, 1909.</p>

<p>Action for damages. Before Judge Edwards. Paulding superior court. May 21, 1908.</p>

<p>Certiorari. Before Judge Fite. Murray superior court. February 21, 1908.</p>

<p>Action for damages. Before Judge Beagan. Upson superior court. February 18, 1908.</p>

Injunction. Before Judge Eumsey. Hall superior court. April 15, 1909. The exception was to the grant of an injunction restraining the operation of a skating-rink in an old building situated about 150 yards from the plaintiff’s home.

<p>Taxation of receiver’s fee, etc. Before Judge Edwards. Polk superior court. July 1, 1908.</p>

<p>Petition for direction, etc. Before Judge Charlton. Chatham superior court. July 17, 1908.</p>

<p>Action for damages. Before Judge Boan. Newton superior court. January 13, 1908.</p>

Petition for injunction. Before Judge Hammond. McDuffie superior court. April 10, 1909.

Illegality of execution. Before Judge Felton. Houston superior court. April 8, 1908. In September, 1898, F. W. Gano brought, in the superior court of Houston county, a suit to recover the balance due upon a promissory note, which the petition alleged was “executed to petitioner” by “AY. H. Harris, executor of will of H. C. Harris,” and “endorsed by AAr. II.

<p>Petition for injunction. Before Judge Spence. Dougherty superior court. June 26, 1908.</p>

<p>1. The act approved August 17, 1903 (Acts 1903, p. 18), which allows the amount of an occupation tax imposed by a municipality, paid by a corporation liable for a franchise tax under the act approved December 17, 1902 (Acts 1902, p. 37), to go in reduction of the amount due to the municipality on its franchise tax, is not limited to corporations that pay occupation taxes in consideration of the exclusive use of a franchise, but applies generally to such as are subject to a franchise tax, and that have paid a municipal occupation tax for exercising the franchise.</p> <p>2. The act of 1903 above referred to does not violate article 7, section 2, paragraph 1, of the constitution, which requires that “All taxes shall be uniform upon the same class of subjects and ad valorem on all property,” etc., because it allows a corporation to deduct from the municipal tax on its franchise the amount paid by sxxcli corpox-ation to the municipality as an occupation or privilege tax or charge for exercising the franchise.</p> <p>3. Nor does such act offend the constitutional guaranty in the bill of rights (Civil Code, §5699) that protection to person and property shall be impartial and complete.</p>

<p>Action for damages. Before Judge Ellis. Eulton superior court. July 1, 1908.</p>

<p>Action for damages. Before Judge Felton. Bibb superior court. May 28, 1908.</p>

<p>1. A petition against a railroad company to recover damages for a breach of contract to furnish cars, wherein it is alleged that the general manager of the defendant orally told the plaintiff that defendant could handle his fruit, and that cars would be placed for him at a designated station on the line of road of the defendant in twenty-four hours after they were ordered through defendant’s local agent, and that the plaintiff ordered ears according to such proposal, which cars were furnished, but not within the contract time, is not demurrable on the ground that the contract as alleged was too vague and uncertain to afford a cause of action for its breach.</p> <p>2. The petition set forth an action for breach of contract, and was not open to the criticism that it contained a joinder of causes of action ex contractu and ex delicto.</p> <p>3. The obligation of a carrier to furnish ears to a patron may arise either from the duty imposed by law, or from a special contract between the carrier and the patron. In a suit for a breach of a special contract, matters which will not excuse performance of the contract, but only tend to excuse performance of the general duty imposed by law, are not relevant.</p> <p>4. In a suit to recover damages for failure to furnish cars for the shipment of fruit, where the damages claimed are as compensation for the deteriorated condition of the fruit, caused by the delay in furnishing cars, the difference in the market value of the fruit at the point of shipment at the time the cars should have been furnished, and at the time they were actually furnished, may be considered by the jury in estimating damages.</p> <p>5. Where by the terms of a contract to furnish cars to transport peaches the plaintiff was to order them through the railroad’s local agent, he can not recover of the carrier damages for failure to furnish cars sufficient to transport ungathered peaches for which no requisition had been made.</p>

<p>1. To an action brought under the Civil Code, §2716, for the purpose of having a receiver appointed for the assets of an insolvent trader, “one or more creditors, representing one third in amount of the unsecured debt of such insolvent corporation, trader, or firm of traders, whose debts are matured and unpaid, shall be necessary parties.”</p> <p>& The act authorizing this proceeding to place the assets of an insolvent trader in the hands of a receiver, at the instance of a creditor or creditors without lien or judgment, is in derogation of common law, and it has been held by this court that it must be strictly construed.</p> <p>.3. Giving to the statute such a construction, the expression “unsecured debt” means a debt for which the creditor holds no security; not one which is secured by collateral security or pledge, though such security may -be of less value than the total amount of the debt.</p> <p>4. The case turning on whether the plaintiff was entitled to be considered . an unsecured creditor, and it not being so within the meaning of the statute under which the petition was brought, the appointment of a receiver was error.</p>

<p>Action for damages. Before Judge Worrill. Early superior court. August 1, 1908.</p>

<p>Petition for injunction. Before Judge Lewis. Greene superior court. May 12, 1909.</p>

<p>Exceptions to auditor’s report. Before Judge Hammond. Biehmond superior court. August 19, 1908.</p>

<p>Complaint. Before Samuel B. Hatcher, judge pro hac vice. Talbot superior court. March 9, 1908.</p>

<p>Action for damages. Before Judge Littlejohn. Schley superior court. January 8, 1908.</p>

<p>1. Malice is an essential ingredient of the crime of murder, and need not have existed any length of time previous to the infliction of the mortal blow. The charge of the court conveyed this idea, but was expressed in language that might be misconstrued by the jury.</p> <p>2. The charges on the subject of voluntary manslaughter were erroneous in that they commingled the law of self-defense under Penal Code, §73, and defense of person under Penal Code, §§70 and 71, with the law of voluntary manslaughter.</p> <p>3. When the defendant’s statement authorizes an inference that the deceased was slain while he and the defendant were engaged in mutual combat, it is not error to give in charge Penal Code, §73.</p> <p>4. The failure of the court to give in charge the legal definition of the word “felony,” appearing in Penal Code, §70, which section was given in charge, is not error requiring a new trial.</p> <p>5. In a criminal case the court should' not give in charge Penal Code, § 989. to the effect that the omission to produce evidence within a party’s reach to repel a charge raises a presumption that the charge is well founded. In all criminal eases the burden is on the State to establish the defendant’s guilt beyond a reasonable doubt.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. July 8, 1908.</p>

<p>1. Where a wife- executes a deed conveying her property for the purpose of extinguishing her husband’s debt, in pursuance of a plan or scheme participated in by the grantee in the deed, such a deed is void, and the wife may maintain ejectment against her grantee or any one else claiming-under her grantee with notice of the consideration moving the wife to make the deed tp her property, without the institution of equitable proceedings to cancel the deed.</p> <p>2. If a part of the consideration of the deed in question in this case was the lifting of certain encumbrances upon the property, it was a valid charge thereon; and if the remainder of the consideration was to be appropriated to the extinguishment of the debt of the grantor’s husband, the deed itself, being one entire transaction, can not be upheld, because of the impossibility of separating that which is legal from that which is illegal; and the most that could 'be done in such a case in favor of the grantee in the deed is to hold and decree that he be subrogated to the rights of the encumbrancers whose debts he paid off and discharged.</p> <p>3. If the purchaser be not the actual creditor but the agent of one who participates with him in the scheme for the effectuation .of which the deed was executed, the sale is equally void and the deed of no effect; and the possession of the property having been surrendered to the grantee, the wife may subsequently maintain ejectment against the grantee or those holding under him with notice of the defect in the consideration.</p> <p>4. The verdict of the jury, and the judgment of the court below to whom was submitted all questions of fact except as to the right of the plaintiff to recover the land sued for, are unauthorized by the evidence.</p> <p>5. An error in decree or judgment can not be made a ground of exception to the overruling of a motion for a new trial.</p> <p>6. An assignment of error containing the exception, “That the court erred in its entire charge to the jury, in failing to exempt from the consequences to be visited upon the grantor this defendant, who was thus deprived of all his defenses arising out of the estoppel, silence and fraud of the plaintiff, and the prescriptive holding of the premises in dispute,” is too vague and general to raise any question for decision in this court.</p> <p>7. Exceptions to the rulings of the court in admitting testimony over objection are not grounds for a new trial, where it is not made to appear what objections were urged to the admission of the testimony claimed to be inadmissible.</p>

<p>There being no evidence, at the conclusion of the introduction of the testimony, that' would have authorized a finding in favor of the plaintiff, the court properly awarded a nonsuit.</p>

<p>Action for breach of contract. Before Judge Eite. Whitfield superior court. August 3, 1908.</p>

<p>Application for partition. Before Judge Edwards. Douglas superior court. July 13, 1908.</p>

<p>Action for damages. Before Judge Worrill. Clay superior court. January 3, 1908.</p>

<p>1. A ground of a motion for a new trial not referred to in the brief of counsel for plaintiff in error is considered as abandoned.</p> <p>2. A general assignment of error upon a quoted excerpt from the charge of the court, which is isolated from its context, and so fragmentary in character and incomplete as to be unintelligible of itself, and the obscurity of which is not removed by any explanatory statement made in connection therewith, can not be considered by a reviewing court.</p> <p>3. Although an insurance policy contains a provision that either party thereto may, “at any time, be released from the obligations of this policy by giving the other party thirty days notice of such intention,” the parties may agree upon an immediate cancellation.</p> <p>4. Where a portion of a quoted excerpt from the charge of the court states the law correctly, a general assignment of error upon the whole of such instruction is without merit.</p> <p>5. The evidence was sufficient to authorize the verdict, and there was no error in refusing a new trial.</p>

<p>Indictment lor murder. Before Judge Park. Grady superior court. May 11, 1909.</p>

<p>Indictment for murder. Before Judge Brand. Clarke superior court. May 17, 1909.</p>

<p>1. ' The court erred in not granting the defendant a postponement of the trial for a reasonable time within which to locate and procure the attendance of the absent witness, or a continuance of the case for the term.</p> <p>2. The law does not require “other equivalent circumstances” referred to in section 65 of the Penal Code to be in the nature of an assault or an attempt to commit a serious personal injury by the deceased, but the circumstances therein referred to must be the equivalent of an assault, oían attempt .to commit a serious personal injury, in excluding all idea of deliberation or malice and in justifying the excitement of passion. The “other equivalent circumstances” referred to must be such as would as much exclude all idea of deliberation or malice and justify the excitement of passion as Would an assault, or an attempt to commit a serious personal injury.</p>

<p>1. Where a debtor borrows money, and secures the loan by. a deed to land, if the debt is sued upon to judgment, and the debtor fails to plead usury in the debt, or pleads it and has an adverse verdict, and a special judgment is rendered against the land, the debtor and his creditors, in the absence of fraud, want of jurisdiction in the court, or other equity, are estopped from subsequently attacking the deed for usury. Ryan v. Am. etc. Mtg. Go., 96 Ga. 322 (23 S. E. 411), distinguished.</p> <p>2. A judgment will not be declared to be unsupported by pleadings which are not included in the record.</p> <p>3. There was no error in refusing a pendente lite injunction.</p>

<p>Temporary alimony. Before Judge Park. Decatur superior court. February 22, 1909.</p>

<p>Petition for injunction. Before Judge Eawlings. Johnson superior court. May 13, 1909.</p>

<p>Injunction and receiver. - Before. Judge Worrill. Early superior court. February 22, 1909.</p> <p>cited Oivil Code, §4539; 122 Ga. 333; 124 Ga. 544.</p>

<p>Equitable petition. Before Judge Whipple. Ben Hill superior court. April 30, 1908.</p> <p>On August 7, 1905, Mary O. Andrew, a resident of Indiana, brought an action in tbe superior court of Irwin county, against Samuel Greer, a resident of that county, and Frederick E. Greer, a non-resident of the United States. The substance of the petition, as amended, and now material, was briefly as follows: Early in 1898 petitioner and Samuel Greer agreed to purchase, in Fitzgerald, Ga., a suitable location upon which they were to have erected a two-story brick building, the lower story to be used for stores and the upper story as a hotel, each of them to have an equal interest in the property. Accordingly, in February, 1898, Samuel Greer purchased city lots 1 and 2 in square 5 and block 11, in the city of Fitzgerald at the price of $565, petitioner lending him $425 to be applied towards the payment of the purchase-price and to be repaid to her upon final settlement between them. In addition petitioner furnished him $2,000 to be used in the erection of the building upon such lots, which sum, under their agreement, was the amount she was to furnish for a one-half undivided interest in such lots and the building to be erected thereon, he agreeing to pay whatever amount in excess of the $2,000 it might become necessary to expend in the erection of the building. Thereafter petitioner furnished him $1,000 more to be used in the construction of the building, upon his representation of his inability to raise that amount, and upon his agreement to repay petitioner, upon final settlement between them, all sums furnished by her to complete the building, in excess of the $2,000 which she had agreed to pay. With the money thus furnished by petitioner Samuel Greer had the building erected upon such lots, and about February 8, 1898, conveyed to petitioner a one-half undivided interest in the property. Because of the fact that petitioner furnished most of the money for the enterprise, Samuel Greer agreed to personally attend to having the building erected, to rent the same, collect the rents, pay the taxes, have repairs made, and to generally look after and care for the propertjr, without any charge or compensation. Subsequently it appeared that the adjoining lot, number 3,.was needed for the purpose of erecting thereon a kitchen for the hotel, and certain outhouses for the use of the tenants of the property, and it was therefore agreed between petitioner and Samuel Greer that such lot should be purchased by them jointly and for their use in connection with the building on the other two lots; and accordingly he, acting for himself and petitioner, purchased lot 3 for $200, of which amount she furnished one-half, but, contrary to the agreement and without petitioner’s knowledge, he took a deed conveying lot 3 to Frederick E. Greer, whom Samuel Greer claimed to be his son. Soon after this lot was purchased a kitchen and outhouses were erected thereon, which have since been used by tenants of the hotel and stores. On June 19, 1898, Samuel Greer executed a deed whereby he purported to convey, for a consideration of $600, a one-half undivided interest in lots 1 and 2 to Frederick E. Greer, and about the same time secured from him an alleged power of attorney to act for him as to all matters pertaining to his interest in the property; and at all times since Samuel Greer has claimed the right to exercise the power alleged to have been so conferred upon him. Frederick E. Greer never paid anything for any of the property; and the conveyance to him of lot 3, as well as the conveyance to him of a one-half interest in lots 1 and 2, and the alleged power of attorney were all executed as part of a fraudulent scheme concocted by Samuel and Frederick E. Greer to deprive petitioner of her interest in lot 3, and to prevent her from subjecting the one-half interest in lots 1 and 2, pretended to have been conveyed to Frederick E. Greer, to the payment of the sums due her by defendants. Samuel Greer has depreciated the rental value of the property by renting the hotel to disreputable tenants, and has in various indirect ways and schemes, as set forth, managed to appropriate the rentals to his personal benefit, and has retained in his hands large sums from the rentals for alleged services in managing the property for petitioner. In 1904 petitioner discovered that Samuel Greer had not dealt fairly and honestly with her in the matter of the purchase of lot 3, and that he was fraudulently withholding from her portions of the rents of the property to which she was entitled. She had previously, May 1, 1903, cancelled and revoked the authority she had given him to act for her, and had then appointed Henry G. Taylor her agent and attorney in fact as to all matters pertaining to the property. Nevertheless Samuel Greer has at all times since claimed the right, as agent of Frederick E. Greer, to exercise absolute and entire control of all the property, and has rented the same without consulting petitioner or her agent, Taylor,collected the rents, and refused upon demand to account to petitioner for any of such rents, or to allow her to have anything to do with the possession or control of the property. Both the hotel and storerooms have been almost continuously occupied by tenants since the building was completed, and the reasonable rental value of the whole building has been $100 per month. Samuel Greer claimed to have used about $3,200.00 in the erection of the building, but refused on demand to furnish petitioner with any evidence showing the amount so expended, and petitioner charges that the actual cost did not exceed $2,500.00. No part of the money advanced or loaned by petitioner to Samuel Greer has been repaid. Samuel Greer is insolvent. lie is seeking to sell lot 3 and the one-half interest in lots 1 and 2 alleged to belong to Frederick E. Greer; and if such sales should be made to innocent purchasers, petitioner would lose her interest in lot 3 and be deprived of her right to subject his one-half interest in the other two lots to the payment of the amount due her by defendants, which is $2,500. Discovery was expressly waived. The prayers were: for injunction restraining defendants from selling, conveying, or incumbering any of the property; for appointment of a receiver; for an accounting by the defendants; for judgment against defendants for $2,500, or for such sum as might be found to be due her by them; that Frederick E. Greer be decreed to convey to petitioner a one-half undivided interest in lot 3, and that title to such an interest be decreed to vest in her; that she be decreed to have a lien upon the moneys in the hands of the receiver, belonging to the defendants, or either of ■them, to satisfy any judgment she should obtain against them; that a sale of the property be had by the receiver and a division of the proceeds be made according to the respective interests of the parties; that petitioner have a lien on that part due defendants or either of them, to satisfy so much of any judgment obtained against them or either of them as may not be satisfied from the rentals due defendants or either of them, and fox general relief and process.</p> <p>Each of the defendants filed a demurrer to the petition. The grounds of the demurrers necessary to be stated here were: (a) Misjoinder of parties defendant. (&) Multifariousness, (c) Statute of limitations, because it appears that the alleged rights sought to be enforced accrued more than four years before the filing of the petition. Both defendants answered the petition, denying most of the material allegations thereof, and particularly denying all allegations of fraud, conspiracy, and collusion, and that Frederick R. Greer had not paid for the property conveyed to him, denying the insolvency of Samuel Greer, and that he had failed' and refused to account to petitioner for all that was due her, and alleging that neither of the defendants owed her anything. The ease was referred to an auditor, with full power to allow or disallow amendments to the pleadings, to hear evidence and to determine all the issues involved. One of the amendments to the petition was offered at the hearing before the auditor and allowed by him, over objections urged thereto by defendants. The auditor overruled the demurrers to the petition, and also overruled a demurrer filed by the petitioner to the answer of Frederick R. Greer, on the ground that the same was not verified. The auditor filed his report, and, under the head of “Findings of Law,” he stated: “(1st.) I have already this date filed a true and correct report of the evidence, which is hereto attached, in which appears all of the motions made by counsel in the ease in reference to the admissibility and non-admissibility of the testimony, all objections being noted therein and the rulings of the Auditor thereon being therein stated.” Under the head of “Findings of Fact,” he stated: “(8th.) I find for the plaintiff against the defendant, Samuel Greer, for the sum of $2,073.04, and I find that the plaintiff have a lien against the undivided half interest of said Frederick R. Greer in said lots of land, one, two, and three, in square five and block eleven, for said sum, and that of said sum I find that the defendant Frederick R. Greer is jointly liable to the plaintiff with said defendant Samuel Greer for the sum of $1,023.04, and that said plaintiff have a lien as against both defendants for this amount upon the undivided one-half interest of said Frederick R. Greer in and to the lands aforesaid. Wherefore I find that the plaintiff do have and recover of both of said defendants, jointly- and severally, the sum of $1,-023.04, and that in addition to said sum said plaintiff recover of the defendant, Samuel Greer, $1,050.00, the total amount herein -awarded being $2,073.04, and that for the said amount plaintiff have judgment and a lien on the undivided half interest of said Frederick R. Greer in the lands aforesaid.” “(11th.) The findings herein made include all matters and items involved in said case up to and until the date of the filing of said petition; the findings aforesaid against the defendants do not undertake to dispose of the amount of rents and profits collected by the receiver, and those amounts were not included in arriving at the amounts herein stated.” No statement of account was made in the report or referred to therein, and there was nothing in the report, or in any statement attached thereto, showing what items went to make up either of the sums found by the auditor, one being against both defendants, and the other and larger one, which included the smaller amount, being against Samuel Greer. The defendants filed various exceptions of law and exceptions of fact to the report, one of the exceptions of law being as follows: “Because the auditor failed to make an accurate report of all motions made before him and of his rulings thereon, as required by sections 4585 and 4587 of the Code of Georgia but in lieu of making any separate report, as is required and contemplated under that section of the Code, the auditor has made his rulings upon such motions, and upon the objections to the evidence, in the brief of evidence itself; so that, in lieu of having a separate report of the rulings of said auditor, it is necessary to go through the entire stenographic report of the evidence, including questions and answers, objections of counsel, and other matter irrelevant and superfluous so far as concerns any ruling of the court, said brief of evidence consisting of 604 typewritten pages, all of which must be carefully gone through in order to find the rulings of the auditor, so that the aim and purpose of the auditor’s act is defeated, and the report thus made by the said auditor is not in compliance with said sections of the code.” Defendants also excepted to the 8th paragraph of the auditor’s “Findings of Fact,” hereinbefore' quoted, upon the following grounds, among others: “(2) The said finding of the auditor is too vague and indefinite, in that it fails to embrace any finding of fact, except a general conclusion in the nature of a verdict, as to the amounts thus found by the auditor, and no specific items or figures are given upon which to base said general conclusion, and no basis is given for the calculations so as to show how the said judgment was arrived at. (3) The said finding is fatally defective, because there is not therein, nor elsewhere in the report of the auditor, a recasting or restatement of the account between plaintiff and defendant Samuel Greer, so as to show the figures and items upon which the conclusion of the auditor is based.” Other exceptions of the defendants to the report will be indicated as they are dealt with in the opinion. The petitioner excepted to the ruling of the auditor overruling the demurrer to the answer of Frederick E. Greer. When the case came on for a hearing before the judge of the superior court, the defendants moved to recommit the report to the auditor, upon the same grounds, .among others, as set forth in the above-quoted exceptions to the report. The court overruled this motion, overruled all exceptions to the report, and entered up a decree in accordance therewith. Defendants sued out a writ of error, in which they excepted to the overruling of their motion to recommit and the overruling of their exceptions to the report; and the plaintiff, by cross-bill, excepted to the overruling of the demurrer to the answer of Frederick E. Greer.</p>

<p>Equitable petition. Before Judge Brand. Clarke superior court. January 31, 1908.</p> <p>Hodgson & Jackson were proceeding to foreclose a livery-stable keeper’s lien on a horse named “Gold Call,” belonging to Charles S. Elliott, when the latter filed an equitable petition, seeking to enjoin them from selling the horse, and to obtain possession of it, offering to give bond. He alleged, among other things, the following facts: Defendants are engaged in the business of racing horses. Plaintiff contracted with one Beeves to take charge of the horse in controversy and enter him at such races as Beeves might see fit during the season of 1904, expressly stipulating that no one was to be allowed to handle the horse except Beeves, who agreed to pay all expenses which might accrue in the racing and caring for the animal, and to divide with the plaintiff equally the net proceeds of the premiums or purses which might be won by it; and it was agreed that the plaintiff was to bear no part of any expense or cost which might accrue in that connection. Unknown to the plaintiff, Beeves delivered the horse to the defendants to be shipped to plaintiff, but they have refused to make delivery of it, though demanded, claiming a lien upon it as livery-stable keepers. After making the contract with Beeves, plaintiff was informed that the latter was in the employment of the defendants, that the contract which he made with the plaintiff would inure to their benefit, that in making such contract he was acting as their agent. There were also allegations touching damages difficult of computation. Under an order of the presiding judge the plaintiff was allowed to have possession of the horse, after having filed a bond with sureties, reciting the foreclosure of the lien and the denial of the indebtedness by the plaintiff, and conditioned to pay the eventual condemnation-money, if any, found to be due to the defendants upon their lien. The defendants in their answer set up the following, among other facts: Beeves was in the employment of defendants, who did business under the firm name of Overbrook Stables. As their agent he made a contract with plaintiff to care for and board the horse. Plaintiff was informed and knew that the contract was being made for the defendants. By its terms they were to take the horse and board and care for it at the rate of $30 per month. In addition to this the plaintiff was to pay all extra charges, such as for shoeing, shipping the horse, boots, and whatever other “paraphernalia” were necessary to be used in training it. Beeves was to have general supervision of it, he being an expert horseman, and was to carefully train it, care for it, and put it in proper condition for racing. When the racing season came on, defendants were to “campaign” the horse under the supervision of their agent Beeves, and plaintiff was to pay all expenses thereof, such as freight, entrance fees, and the like, in addition to the board. The board and other expenses amounted to $424.32. There were no winnings from races. Defendants were conducting a livery-stable and were engaged in the livery business. They contracted with the plaintiff as livery-stable keepers, and claimed a liveryman’s lien against the horse for the above-stated amount. It having been released under bond and delivered to the plaintiff, defendants are entitled to a judgment against him and his sureties for the amount of thé lien claimed by them. They also prayed judgment against the plaintiff for all tbe items of the account, irrespective of whether they had. a lien for all or only a part thereof. The jury found for the defendants $282.69 against the plaintiff and his sureties, and judgment was entered accordingly on the bond. The plaintiff moved for a new trial, which was refused, and he excepted.</p>

<p>Action for damages. Before Judge Freeman. Troup superior court. February 18, 1908.</p>

<p>Contempt. Before Judge Park. Turner superior court. May 8, 1909.</p>

Equitable petition. Before Judge Worrill. Early superior court. July 27, 1908.

<p>Equitable petition. Before Judge Ellis. Eulton superior court.</p>

Petition for injunction. Before Judge Pendleton. Fulton superior court. December 12, 1908. The plaintiffs sought to restrain the defendant from carrying on a blind tiger under cover of operating a licensed near-beer saloon. The testimony was in conflict on the question of fact; and injunction was denied.

<p>Equitable petition. Before G. E. Maddox, judge pro hac vice. Eloyd superior court. August 4, 1908.</p>

<p>1. Where, in an action for damages on account of a personal injury received in alighting- from a railroad train, the petition alleged' that the plaintiff’s injuries were permanent, and that -his ability to labor had been reduced about one half, after the plaintiff had testified as to the injury and its nature and character and given all the material facts touching his physical condition, his previous capacity, and his subsequent incapacity resulting therefrom, it was not error to allow him to state that he could not do more than half as much labor in his vocation as a blacksmith since the injury as he could before it occurred'. Atlanta & West Point B. Co. v. Johnson, 66 Ga. 259 (2), (4a); Chattanooga, Borne & Columbus B. Co. v. Euggins, 89 Ga. 494.</p> <p>(a) This evidence was not rendered inadmissible because the witness also testified that his injuries had affected him as a blacksmith; that he had to give up his trade on that account; that he was working in a blacksmith shop, and was fitting himself for blaeksmithing.</p> <p>(b) The objection to the evidence as not being warranted by the pleadings was without merit.</p> <p>2. Where the plaintiff claimed that he was injured by a fall in attempting to alight from a railway train while in motion, und'er the direction of the conductor, there was no error in allowing a witness who had testified that as the plaintiff attempted to leave the train he pitched forward, fell, and rolled over on the ground, to state, “I don’t remember plaintiff saying anything as he rose, except that he was hurt on his shoulder and leg and hip,” there being nothing to indicate that this was an afterthought or was a mere narration of a past transaction. Southern By. Co. v. Brown, 126 Ga. 1, 5 (2).</p> <p>(a) Especially will this furnish no ground for reversal, where the presiding judge in a note to this ground of the motion for a new trial certified that the witness had already testified, without objection, that imme-. diately after he got up he had stated that he was hurt, and that his shoulder was hurt.</p> <p>3. If a person’s capacity to labor was permanently diminished' by a physical injury wrongfully inflicted upon him by another, such permanent . diminution of capacity to labor was for the consideration of the jury in determining the amount of the recovery, notwithstanding there may • have been no proof showing a diminution of earnings or loss of time after the injury, and the pecuniary value thereof.</p> <p>4. If it be sought to recover because of a decreased ability to earn money, or because of a loss of time, entailing pecuniary loss, there must he some proof as to such diminished earnings or earning capacity or the value of such lost time, in order to authorize a submission to the jury of the question of such pecuniary loss. But permanent diminution of capacity to labor is for the consideration of the jury, along with such elements of damage as pain, suffering, disfigurement, or the like, if proved, in determining the amount of damages to be awarded.</p> <p>5. If on an excursion train carrying many passengers a railroad company placed two conductors, or two persons entrusted with the duty of performing the usual functions of a conductor in taking up tickets, notifying passengers of stations, directing their movements, or the like, on different parts of such a train, as between the passenger dealing with one of such agents in connection with such dhties and the company whom he represented he would stand in the place of a conductor, whether he was such permanently or not.</p> <p>6. If, on a train consisting of a large number of coaches and carrying many passengers, the conductor was unable to fully discharge the usual duties of his position between stations, and with his authority and knowledge another employee of the railroad on the train took charge of a section thereof and acted as the conductor in connection with it and with taking-up tickets, notifying passengers of stations and' directing them in regard to alighting, and if there was nothing to indicate that he was not the conductor, and a passenger so dealt with him, believed him to be the conductor, and acted on his announcements of a station and under his command as to leaving the car, the company would be liable to such passenger for an injury occurring in leaving the train, to the same extent as if the person thus acting- was the conductor.</p> <p>7. Erom a note of the presiding jud'ge appended to the motion for a new trial it appeal’s that the improper remark of counsel for plaintiff, made during the progress of the argument of counsel for defendant, was held to be improper and its effect was corrected by due instructions to the jury.</p>

Action for breach of contract. Before Judge Beagan. • Butts superior court. July 10, 1909. B. B. Ford & Company sued F. M. Lawson for a breach of contract in failing and refusing to deliver 200 bales of cotton alleged ■to have been sold by the defendant to the plaintiffs. The plaintiffs lived in Macon. The defendant lived in Flovilla. Set out in the petition were certain letters and telegrams between the parties.

Action to cancel deed. Before Judge Lewis. Jasper superior court. April 20, 1908.

<p>Action for breach of contract. Before J. D. Rambo, judge pro hac vice. Clay superior court. June 10, 1908.</p> <p>In 1902 the parties “entered into the following agreement: that the said Coram of the first part has this day sold to the said Oz-more of the second part 250 acres of land [described] on the following conditions: that the said G. W. Coram of the first part agrees to take six hundred dollars cash for said land, and agrees to run any unpaid amt. at 10% per annum, and the said G. W. Coram of the first part agrees that upon the payment of the above principal and interest to make the said W. T. Ozmore a warrantee deed to said land. It is further agreed that the interest must be paid annually, or this contract is forfeited and the said Coram assumes full control of said land.” The breach alleged was, that about the first of January, 1905, Coram dispossessed Ozmore’s tenant, without rescinding or offering to rescind the contract, or offering to protect Ozmore’s equity arising from certain improvements and payments he had made, and sold the land to E. Hilton for $1,250, its then market value. By amendment Ozmore set up, that the stipulation as to forfeiture on failure of payment of the annual interest was void and unenforceable, being contrary to public policy and violative of the usury laws; that Coram waived strict compliance with the terms as to payment of annual interest, by accepting payments of $50 about October 1, 1902, $15 about October 1, 1903, and $36 about October 1,1904; that in the fall of 1903, upon Coram expressing a desire for prompt payment of all arrears of interest, Ozmore negotiated for a sale of the land to one Chandler for $950, but Coram dissuaded him from consummating the trade at that price, and assured him that he (Coram) would give him additional time to pay the amount then overdue, and not insist on any forfeiture for failure in the future to comply strictly with the obligation to pay up the interest annually; and that soon thereafter Coram again expressed a desire for his money, and Ozmore promptly arranged with E. Hilton to get a sufficient loan to pay Coram in full, and to secure Hilton by a mortgage on the land, and Coram promised to go with Ozmore in order to effect this arrangement, but put him off from time to time, and never went with him as promised, although recognizing the contract as still subsisting, and not insisting on a forfeiture, and never notifying Ozmore of any claim of forfeiture until after the sale to Hilton; etc.</p> <p>Coram denied a breach of the contract on his part, and set up several matters of defense. The paragraphs of his answer referred to in the first and second headnotes are, in substance, as follows: (4) He bought the land in December, 1900, for $600, borrowed the money to pay for it, and paid therefor interest at 10 per cent, per annum. In the same month he let Ozmore take possession under oral agreement that he would sell him the land for $600 and give him time to pay for it in yearly installments if he desired, but upon the express condition that he would pay Coram 10 per cent, per annum on such sums of the original purchase-price as might be carried from time to time, this being the rate that Coram had to pay for the use of the money invested in the land, which was understood and agreed between him and Ozmore as the basis of a credit price for the land, but upon the further express and positive condition that Ozmore’s right to retain possession of the land under the contract of purchase should depend on the prompt yearly payments of $60 for the use of the land and money, and that if he failed in such payments the possession of the land should be surrendered to Coram. (5) Ozmore went into possession, and became indebted to Coram $60 for the use of the land for 1901. About December, 1901, he paid Coram $50 to be applied as a credit on that account, which was accepted for that purpose only, and under a distinct agreement from Ozmore that in a short time he would pay the balance of $10 for the use of the land for 1901. (6) When the written contract was executed Ozmore had been in possession for the previous year under the oral agreement; he owed Coram the $10 just mentioned, and promised soon to pay it. (12) Ozmore being indebted to Coram $115 for the payments he had agreed to make in 1902 and 1903, having violated his promise and contract made in 1904 (under which Coram had allowed him to continue in possession after he had surrendered all rights under the former contract), and having paid nothing for the year 1904, Coram went to the place in the fall of 1904, and, finding it open, took possession of his property, as he had the right to do both under his original contract with Ozmore and under the subsequent agreement made in 1904, Ozmore having violated every agreement he had made with Coram.</p> <p>There was a verdict in Coram’s favor. Ozmore excepted to the overruling of his motion to strike the four paragraphs of the answer just set forth, and of his motion for a new trial. The material grounds of the latter motion are sufficiently indicated by the headnotes.</p>

Injunction. Before Judge Worrill. Miller superior court. January 4, 1909. Flowers Lumber Company filed a petition in the superior court of Miller county against A. II.

<p>Claim. Before Judge Littlejohn. Sumter superior court. August 3, 1908.</p>

<p>Indictment for murder. Before Judge Martin. Laurens superior court. May 10, 1909.</p>

<p>Indictment for murder. Before Judge Bawlings. Washington superior court. May 10, 1909.</p>

Equitable petition. Before Judge Eite. Bartow superior court. August 17, 1908. T. R. Jones -was the executor of J. R. Jones, deceased. On December 14, 1896, as an individual he made to himself as executor a mortgage on certain land, reciting that he had taken charge of the estate and had become indebted to it to the amount of $7,097-76/100, which he desired to secure. This was recorded.

<p>1. The description of property excepted in a deed is sufficiently certain when it shows the intention of the grantor as to what property is excepted from the operation of the conveyance, and makes its identification practicable.</p> <p>2. “It is essential to the maintenance of an action of ejectment that the premises [sought to be recovered] be described with such certainty as that, in the event of a recovery by the plaintiff, a writ of possession issued upon the judgment and describing the premises as laid in the d'eclaration shall so identify the premises sued for as that the sheriff, in the execution of the writ, can deliver the possession in accordance with its. mandate.”</p> <p>(a) The description of the property sued for in this case, tested by the criterion above announced, was insufficient.</p>

/ Constitutional questions; from Court of Appeals. J The Court of Appeals certified to the Supreme Court the following questions: “1. Is rule nine of the Railroad Commission of Georgia, as follows: ‘Railroad companies are required to furnish cars promptly on request therefor.

<p>Action upon insurance policy. Before Judge Pendleton. Fulton superior court. March 10, 1908.</p>

<p>Exceptions to auditor’s report. Before Judge Worley. Warren superior court. April 6, 1908.</p>

Complaint for land. Before Judge Littlejohn. Lee superior court. July 22, 1908.

<p>Constitutional questions; from Court of Appeals.</p> <p>The Court of Appeals certifies 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 section 438 of the Penal Code of Georgia unconstitutional and void as being repugnant to art. 1, sec. 8, par. 3 (Civil Code, §5974), of the constitution of the United States, in that said section of the Penal Code contains a prohibition of lawful interstate commerce and is a burden thereon; also, is said section of the Penal Code of Georgia void, unconstitutional, and repugnant to the above-specified portion of the constitution of the United States, as applied to the present case, on the alleged ground that it undertakes to prohibit the solicitation through the United States mails, either personally or by agent, of the sale of spirituous, malt, or intoxicating liquors, in any county of the State of Georgia, where the sale of such liquors is prohibited by law, because it appears from the accusation in the above-stated case, and from each of the counts thereof, that defendant, a Tennessee corporation, engaged in business in the State of Tennessee, in pursuance of its Tennessee business, did personally and by agent, in the county of Fulton, a county wherein by law the sale of spirituous, malt, and intoxicating liquor is prohibited, solicit the sale of spirituous, malt, and intoxicating liquors; said sales to be consummated in Chattanooga, Tennessee, — such solicitation having been made by defendant sending to the prosecutor, Fletcher E. Maffett, from Chattanooga, Tennessee, through the mails of the United States a circular letter advertising such liquors for sale, and, by the words and terms of such circular letter, soliciting said prosecutor to purchase of said E. M. Eose Company such liquors, one or either of them, such liquors to be purchased in Chattanooga in the State of Tennessee, and delivered to said prosecutor at Atlanta, Fulton county, Georgia; and that said soliciting circular was sent through the United States mail and duly delivered by the postal authorities of the United States to said prosecutor in Fulton county, Georgia?</p> <p>2. “Is section 428 of the Penal Code of Georgia uncpnstitutional and void because it contravenes art. 1, sec. 8, par. 7 (Civil Code, §5974), of the constitution of the United States, which provides that Congress shall have the power to establish post-offices and post-roads, on the alleged ground that it prohibits the solicitation of the sale of spirituous, malt, and intoxicating liquors by the mailing of circulars, and the transmission of the same by means of the United States mails from one State, and the delivery of the same by the postal authorities in another State to the sendee, incidental to the prosecution of a lawful interstate business,' — ■ the transmission and delivery through the mails of the United States of such circulars not being prohibited by the constitution and laws of the United States relative to the establishment of post-offices and post-roads, and the regulation of the postal service of the United States?</p> <p>3. “Is section 428 of the Penal Code of Georgia void because it prohibits both interstate and intrastate soliciting of the sale of spirituous, malt, or intoxicating liquors in any county of Georgia where the sale of such liquors is prohibited by law, and therefore violates that provision of the United States constitution which provides that * Congress shall have the power to regulate commerce with foreign nations and among the several States and with the Indian tribes’ ?</p> <p>4. “Is section 428 of thé Penal Code of Georgia void in that it is inconsistent with the postal laws established by the Congress of the United States, and does it contain any provision inconsistent with the right of the United States to regulate or prescribe what may or may not be transported through the United States mails ?</p> <p>5. “Is an accusation filed in the criminal court of Atlanta subject to general demurrer on the ground that it sets forth no offense under the law of this State, or is either count of said accusation subject to such demurrer, where said accusation is regular in form' and charges the defendant (E. M. Eose Company) as follows: ‘First Count: The said E. M. Eose Company (said company being a non-resident of the State of Georgia, and engaged in business in the City of Chattanooga and State of Tennessee, and not in the State of Georgia), in said Fulton county, on the first day of March, 1908, did solicit personally the sale of spirituous, malt, and intoxicating liquors — said county being a county where the sale of such liquors is prohibited by law, — by sending to deponent from Chattanooga, in the State of Tennessee, through the mails of the United States, a circular letter advertising such liquors for sale, and by the words and terms of said circular soliciting deponent to purchase of said E. M. Eose Company spirituous, malt, or intoxicating liquors, one or either of the same; the same, if purchased, to be purchased by deponent’s sending to E. M. Eose Company, from Atlanta, Fulton County, Georgia, by mail, to Chattanooga, Tennessee, an order or orders for said liquors; said liquors to be shipped by said E. M. Eose Company from Chattanooga in the State of Tennessee, by express, and delivered by the express company to the deponent at Atlanta, Fulton county, Georgia. The said soliciting circular was sent through United States mail, and duly delivered by the postal authorities of the United States to deponent, in Fulton county, Georgia. All of which was contrary to, the laws of said State, the good order, peace, and dignity thereof. Second Count: The said E. M. Eose Company (said company being a nonresident of the State of Georgia, and engaged in business in the City of Chattanooga and State of Tennessee, and not in the State of Georgia), in said Fulton county, on the first day of March, 1908, did solicit by agent the sale of spirituous, malt, or intoxicating liquors — said county being a county where the sale of such liquors is prohibited by law — by sending to deponent from Chattanooga in the State of Tennessee, through the mails of the United States, a circular letter advertising such liquors for sale, and by the words and terms of said circular letter soliciting deponent to purchase of said E. M. Eose Company spirituous, malt, or intoxicating liquors, one or either of the same; the same, if purchased, to be purchased by deponent’s sending to E. M. Eose Company, from Atlanta, Fulton county, Georgia, by mail'to Chattanooga, Tennessee, an order or orders for said liquors, accompanied by an United States money order for the purchase-price of said liquors; said liquors to be shipped by said E. M. Eose Company from Chattanooga in the State of Tennessee, by express, and delivered by the express company to deponent at Atlanta, Fulton county, Georgia. The said soliciting circular was sent through the United States mail and duly delivered by the postal authorities of the United States to deponent in Fulton county, Georgia. All of which was contrary to the laws of said State, the good order, peace, and dignity thereof.’ ” ?</p>

Equitable petition. Before Judge Felton. Bibb superior court. February 3, 1908. cited, on tender: Terry v. Heim, 122 Ga. 43; Ansley v. Hightower, 120 Ga. 719; Kerr v. Hammond, 97 Ga. 567; Brotan v. Askew, 74 Ga. 582. Statute of frauds; attempt to vary contract by later parol agreement: Augusta R. Co. v. Smith, 106 Ga. 684; Willis v. Fields, 132 Ga. 242; Smith v. Ga.

<p>The evidence in this case demanding a finding that the plaintiff was entitled to recover the property in .controversy, the court did not err in directing a verdict accordingly.</p>

Complaint. Before Judge Spence. Dougherty superior court. October 5, 19Ó8. The Albany Power and Manufacturing Company, which, for the sake of convenience, will hereinafter be called the power company, instituted suit against the City of Albany, hereinafter called the city, for the recovery of $1,020 and interest, alleged to be due under a contract between the power company, as party of the first part, and the city, as party of the second part.

<p>Equitable petition. Before Judge Mitchell. Colquitt superior court. October 15, 1908.</p>

<p>1. An allegation of the validity of a conveyance of land by deed is not admitted by an averment that the grantor made to the grantee an instrument wherein he attempted to convey the land, but that the instrument was void as a deed for want of sufficient description of the property therein attempted to be conveyed.</p> <p>2. Where a petition for recovery of land alleges that the defendant is in possession, claiming title under a deed from the plaintiff and another person, and this allegation is admitted by the answer, such admission does not relieve the plaintiff from showing title to either the whole or a definite moiety or interest in the land. No presumption arises from the execution of a joint deed by several grantors, which contains no words indicating the respective interests of the several grantors intended to be conveyed, that the interests or estates of the several grantors are equal.</p>

<p>Buie. Before Judge Ellis. Fulton superior court. November 24, 1908.</p>

<p>The wages of one employed by a railroad corporation as stenographer to its general manager at a fixed salary per month, payable monthly, with no fixed time for the termination of the contract of employment, whose duties are to receive in shorthand from dictation and to transcribe on a typewriter the letters of the general manager, to travel in the car of the general manager for the purpose of taking dictation, but to perform no duties other than those of an amanuensis and stenographer, are exempt from garnishment under the Civil Code, §4732.</p>

Equitable petition. Before Judge Littlejohn. Sumter superior •court. August 4, 1908. The Americus Construction Company brought an action against the Central of Georgia Railway Company, the substance of the petition, as here material, being briefly as follows: The plaintiff’s planing-mill and lumber-yard used in connection therewith, situated in the city of Americus, adjoins the right of way of the defendant.

Year’s support. Before Judge Whipple. Irwin superior court. November 4, 1908. J. L. Paulk, as guardian of minor children of E. L. Hancock, deceased, filed an application to tbe court of ordinary for the setting apart of a year’s support for his wards from the estate' of their deceased father.

<p>Complaint. Before Judge Whipple. Ben Hill superior court. January 14, 1909.</p>

<p>.Application for partition. Before Judge Mitchell. Berrien ■superior court. September 7, 1908.</p>

<p>1. A deed recited as its' consideration, tlxe love and affection which the grantor had for his daughter and the children of her body by her husband (naming him) and ten dollars in hand paid, and conveyed certain land' to a trustee for the daughter and the children of her body by such husband, “all of the county of Brooks and State aforesaid, . . for the sole and separate use of the said Mary M. [the daughter] and her children as aforesaid, their heirs and assigns.” A person alleging that he was the husband and sole heir of one of the children of the daughter of the grantor, and that his • wife had died] filed a petition for partition of the land, alleging, that the children of the grantor’s daughter and her husband were certain named persons; that one who was named had acquired by purchase the interest of certain other “heirs;” and that the petitioner and certain of the children who were named were tenants in common of the land'. It was nowhere alleged that the daughter of the grantor was dead; nor was it alleged what children were in life at the time when the conveyance took effect, so as to fall within the description of “children of her body” then in esse; nor was it alleged that the wife of the petitioner was then in life. Held:</p> <p>(1) That only such children as were in esse when the conveyance took effect acquired any interest under it.</p> <p>(2) As the petition failed to show that the wife of the petitioner, under whom he claimed, was a child' in esse when the conveyance was executed, so as to convey any interest to her, which could pass to him, or to show what children were then in esse, or whether their mother was alive or dead, so as to show what interest, if any, the petitioner had, the petition was properly dismissed on demurrer.</p> <p>(3) An allegation in a petition for partition that the cotenants of the applicant had received the rents, issues, and profits of the land for more than twenty years and had not paid any part of them to him, but which showed' neither adverse possession nor notice to the petitioner, did not render the application for partition demurrable on the ground that it did not show that it was commenced within the period limited by law for the recovery of realty.</p>

<p>Action for damages. Before Judge Martin. Dodge superior court. September 9, 1908.</p>

<p>Complaint for land. Before Judge Parker. Coffee superior court. October 6, 1908.</p>

<p>Action for damages. Before Judge Martin. Pulaski superior court. October 10, 1908.</p>

<p>1. In a suit for damages against a street-railroad company because tlie plaintiff was ejected from one of its ears by the conductor thereof, the petition alleged, that the plaintiff tendered such conductor a $5 gold coin for which to make change and take out his fare and that of his two companions, which the conductor refused to do; that in a loud and offensive manner he ordered plaintiff to leave the car; that upon the plaintiff remonstrating with him, the conductor seized the plaintiff and forcibly ejected him from the ear; that the conduct of the conductor was “an outrage upon petitioner” and in violation of his legal rights, and plaintiff was subjected to great mortification and embarrassment in the presence of others on the car. Held, that the overruling of a general demurrer to such petition did not conclude the defendant from contending on the trial that $5 was an unreasonable amount for which to require the conductor to furnish change in order to pay three fares.</p> <p>2. A passenger on a street railroad is not bound to tender the exact amount of fare, nor is the conductor who collects fares for such road required to change any denomination of money.</p> <p>(a.) In order to pay fare, a passenger may tender a reasonable amount and require the conductor to change the same.</p> <p>(6) A street-railroad company has the right to make a reasonable rule fixing the maximum amount for which change will be made by the conductor for passengers to enable them to pay the amount of their fares on its cars, and such company may refuse to carry passengers who do not comply with such rule.</p> <p>(e) Whether a rule of such company specifying such amount is or is not reasonable is a question of law to be determined by the court.</p> <p>(d) A rule of such company, .prescribing $2 as the maximum amount for which the conductor, shall supply change to passengers to enable them to pay the fare charged for transportation within the city, is a reasonable rule.</p> <p>(e) Where a person on board the ear of a street railroad tenders a $5 gold coin to the conductor of such road having such rule in force, such conductor is not required to furnish change therefor to collect the fares charged for the transportation of such person and his two companions within the city; and where no other tender is made, such conductor may require such persons to leave the car.</p>

<p>Petition for injunction, etc. Before Judge Ellis. Pulton superior court. March 13, 1909.</p>

<p>Indictment for murder. Before Judge Beagan. Upson superior court. June 28, 1909.</p>

<p>Indictment for murder. Before Judge Eeagan. Henry superior court. June 28, 1909.</p>

<p>Indictment for murder. Before Judge Gilbert. Pulton superior court. July 16, 1909.</p>

<p>Indictment for rape. Before Judge Bawlings. Emanuel superior court. July 15, 1909.</p>

<p>Indictment for murder. Before Judge Parker. Coffee superior court. July 24, 1909.</p>

<p>Indictment for murder. Before Judge Park. Worth superior court. August 28, 1909.</p>

<p>1. Where a witness testified that she was near the scene of a homicide, and in a general way described her position and the relative positions of the deceased and the accused, and it appeared that the character of the place and certain obstructions were such that the witness could not portray as complete a picture of the scene as was presented to her view, it was competent for the witness to testify: “From where.I was standing I could have seen [the deceased] if he had been standing up.”</p> <p>2. On the trial of a defendant charged with murder, where it is not shown otherwise than by the statement of the accused that the deceased was the assailant in the fatal rencounter, it was not erroneous to exclude evidence of a previous uneommunieated threat made by the deceased against the accused.</p> <p>3. On the trial of a person charged with murder, the accused, in making her statement before the jury, referred to a past wrong committed by the person slain, and stated that on account of that wrong the accused was about to swear out a warrant, when the offender again assaulted her with a knife, and that she fired the fatal shot to prevent the assault. While instructing the jury the judge charged: “To kill a person on account of a past offense or indignity from the person killed, if the killing takes place in anger and resentment of such offense or indignity offered, however grievous such indignity or offense may be, it would be murder. -1 charge you it would be unlawful to kill another in resentment of a past injury.” This charge was not open to the criticism “that it was not adapted to the facts.”</p> <p>4. Other grounds of the motion for new trial, which relate to certain charges to the jury, are not of such character as to require the grant of a new trial.</p> <p>5. The evidence was sufficient to support the verdict, and there was no abuse of discretion in refusing to grant a new trial.</p>

<p>Action for breach of contract. Before Judge Spence. Grady superior court. November 25, 1908.</p>

Equitable petition. Before Judge Spence. Baker superior court. August 28, 1908. A statement of the pleadings and evidence appears in the report of the case when on a former occasion it was before this court upon exceptions to a judgment granting a temporary injunction. Brown v. Bonds, 125 Ga. 833 (54 S. E. 933).

<p>Claim. Before Judge Mitchell. Lowndes superior court. November 2G, 1908.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. December 8, 1908.</p>

<p>1. A verdict and judgment rendered with the consent of counsel is binding upon the elieht, in the absence of fraud and collusion upon the part of the counsel with whose consent such verdict and judgment is rendered.</p> <p>2. Under the facts in this case the court did not err in denying the motion to set aside and vacate the judgment attacked.</p>

<p>A wife may be a creditor of her husband and may take from him a deed to land to secure the debt. On payment of the debt the wife may reeonvey the land to the husband. Such a transaction is not a sale of the wife’s separate estate to the husband, which, under the Civil Code, §2490, must be allowed by order of the superior court of the wife’s domicile in order to be valid.</p>

<p>Complaint. Before Judge Felton. Houston superior court. January 9, 1909.</p>

<p>Indictment for murder. Before Judge Martin. Telfair superior court. July 22, 1909.</p>

<p>Temporary alimony. Before Judge Littlejohn. Schley superior court. February 6, 1909.</p>

<p>Equitable petition. Before Judge Mitchell. Berrien superior court. September 21, 1908.</p>

<p>Ejectment. Before Judge Mitchell. Colquitt superior court. October 6, 1908.</p> <p>An action of ejectment in the common-law form was brought by John Doe on the several demises of the Hosch Lumber Com* pany, E. E. Davison as administrator de bonis non cum testamento annexo of the estate of James Davison deceased, C. J. Haden, Ella Martin Davison, James Davison, Mary Pearl Davison, and Temperance Estelle Davison, jointly and severally, against Eichard Eoe, casual ejector, and J. S. Weeks claimant of title. The defendant pleaded the general issue, and also “that he and those under whom he claims have been in the open, exclusive, notorious, continuous, and bona fide possession of said land under written color of title.” It appeared that both parties claimed under James Davison. One Davant, executor of Davis, made a quitclaim deed to Norman, and Norman conveyed to the defendant. Later an administrator de bonis non was appointed on the estate of Davison. He eonveyed to Haden. Afterwards he made a deed reciting that the estate of Davison had been fully administered pursuant to the terms of the will, and all debts had been fully paid, and conveying to the devisees in the will “all the right, title, and interest in the real property of said estate that may yet remain in said estate,” designating certain lots including the one now in suit. The devisees under the will of Davison conveyed to Haden. Between the dates of the two conveyances to him, Haden conveyed to the Hosch Lumber Company. On the first trial the judge directed a verdict for the defendant. The judgment was reversed, this court holding that the deed from Davant, one of the three executors of Davison, was not authorized by the will, which provided for the testator’s wild lands (including the lot in dispute) to “be sold at such' time and place as may be to the best interest of my estate, at the discretion of my executors and the ordinary of this [Greene] county.” Bosch Lumber Company v. Weelcs, 123 Ga. 336 (51 S. E. 439).</p> <p>On the second trial the plaintiffs made out a prima facie case. The defendant tendered in evidence the deed from Davant, executor of Davison, to Norman, being a quitclaim deed. Objection was made to this, on the ground that it was void and that it was the personal deed of Davant. The defendant then offered certain depositions tending to show, that Davant was the active executor of the estate of Davison, and with the consent of the other two executors managed the affairs of the estate while all three were in office, and so continued to act after Overton resigned, until he himself resigned; that Overton and Mrs. Davison did not have any active management of the estate, but left the business of it entirely to Davant, who, in the year 1882 (in which year the deed to Norman was dated), made all the returns and signed all the papers connected with the estate; that about 1896 or 1897 Haden entered into’ correspondence with the son of Mrs. Davison, making inquiry about the lots of land owned by his father; that the younger Davison thought the title valueless on account of certain transactions with one Newsome and one Saw.tell, the mismanagement of the estate, and the lapse of time; that Haden thought the deed from Davant to Norman void; that Davison explained the details of certain transactions between his mother and one Newsome and Saw-tell; and that finally Haden purchased and paid $200 or $250, taking a deed from the administrator de bonis non, but causing to be inserted in it a consideration of $1,000. Depositions of Norman were also offered to show that he bought the land from Davant as executor of Davison, paid the price stated in the deed, had no notice of any kind to indicate that the deed was not good, paid full value, and believed that it was effective to pass title out of the estate of Davison deceased, and that he afterwards sold the land in dispute to Weeks for $125. The court rejected the deed from Davant, executor, to Norman, on the ground that it was void as an executor’s deed, and also rejected the evidence offered in support of it. Defendant then offered in evidence a deed from Norman to Weeks, covering the lot in dispute. This was rejected on the ground that it was not connected with any person having title, no title being shown in Norman, the grantor. Defendant offered in evidence a turpentine lease, dated January 8, 1895, from Weeks to one Horne, conveying all the turpentine timber on certain lots, including the one in dispute, to be used, worked; and operated for the purpose of manufacturing rosin and spirits of turpentine from the eighth day of January, 1895, for the full term of three years from the date of boxing. It recited a valuable consideration, and was attested and recorded. This was rejected on the sole ground that no title had been shown in Weeks. Defendant then offered to prove by Horne and Weeks, that immediately after the execution of the turpentine lease they began boxing and working for turpentine purposes all the pine trees on the land in dispute; that it was covered entirely and completely with a growth of pine trees capable of being worked for turpentine purposes, except a small, unimportant portion thereof; and that they were in possession of the lot, boxing, hacking, and otherwise working all the trees thereon capable of being worked for turpentine purposes, and during that time were in as full possession of the land as the manufacture of turpentine and naval stores from trees can give possession. This evidence was rejected. The defendant rested. The court directed a verdict-for the plaintiffs, and the defendant excepted.</p>

<p>1. The charge of the court fairly presented the issues as made hy the evidence and pleadings, and was not open to the criticism that a material contention of the losing party was omitted in the court’s summary of them.</p> <p>2. Where the court fairly states the contentions of both parties, and' instructs the jury upon the law appropriate thereto, and the rule as to the preponderance of evidence, he is not bound, in the absence of 'a proper written request, to charge on which particular issues, respectively, the plaintiff held the burden of proof and on which the defendant held the burden of proof.</p> <p>3. It is not a sufficient ground for new trial that the court failed to instruct the jury relatively to conflicts in testimony, and the jury’s duty in respect thereto, where no written request was made for such instruction.</p> <p>4. There was sufficient evidence to warrant the verdict, which has the approval of the trial judge, and there is nothing in the record to show that the court abused his discretion in refusing a new trial.</p>

Mandamus. Before Judge Martin. Montgomery superior court. February 10, 1909.

<p>In this ease, it was error to dismiss the petition upon the demurrer filed thereto.</p>

<p>1. The plaintiff’s declaration containing allegations showing an unlawful entry upon the plaintiff’s premises by the defendants, it was competent for him to set forth acts and sayings of one defendant, after the unlawful entry, as the basis for the recovéry of punitive damages.</p> <p>2. The plaintiff having brought his action against the defendants for the unlawful entry of a house occupied by himself and family as a dwelling, and the evidence being conflicting upon the question as to whether the defendants entered upon invitation and by permission given by the plaintiff’s wife, the plaintiff himself being absent from home at the time of the entry, it was error for the court to give to the jury instructions authorizing them to find in favor of the plaintiff damages for an illegal search independently of the alleged trespass by illegal entry upon the premises of the plaintiff, the plaintiff not having declared on the case for an illegal or unauthorized search, but having confined his allegations in the petition to the charge or illegal entry and invasion of his home and certain alleged aggravating circumstances.</p>

<p>Complaint. Before Judge Felton. Houston superior court. October 8, 1908.</p> <p>, Mrs. Zetella Neill and Mrs. Gertrude Brown suing for themselves, and H. A. Mathews suing as guardian for Lucile Harris, a minor, brought suit jointly against W. H. Harris to recover the sum of six hundred dollars alleged to be due to each of the petitioners, or the aggregate sum of eighteen hundred dollars^ as their interest in the rents and profits arising, during a period of eleven years from 1894 to 1905, from the H. C. Harris home place, in which petitioners claimed each a 6/35 interest. After alleging the circumstances under which the defendant came into and remained in possession of said property during all these years, charging him with fraud, petitioners allege, in paragraph seven of their, petition, as follows: “That petitioners have been forced to bring suit against the said W. H. Harris to recover their interest in said property, and that they have recovered judgment against the said W. H. Harris, who has resisted their suit and • in every way in his power tried to prevent them from having their rights in the premises, but that a judgment has been rendered establishing their rights as hereinbefore set out, to wit, that each had title to a 6/35 interest in and to said property.”</p> <p>Petitioners filed the following amendment: “1. They allege that the judgment at the October term, 1904, in the case of these plaintiffs against W. H. Harris, upon which a plea of former recovery has been filed, was rendered under the following circumstances: A consent verdict was taken after an agreement between counsel to eliminate all issues from the case except that of the right to a present partition of the land involved, and that it was at the time the purpose of the counsel in the case only to settle this feature of the case, and it was understood at the time and intended that the verdict and judgment should cover only this feature of the case. That, by accident and mistake and oversight, no order was taken striking out of the ease all other issues therein raised, and a verdict for partition only was taken, and a judgment rendered accordingly. 2. That no issues were passed upon or decided in the case and covered by judgment and verdict, other than the right of present partition of the property, nor was it so intended by any of the counsel or parties in the ease.” Petitioners further amended their petition as follows: “Petitioners amend tbeir declaration further by striking out the allegation that they recovered the land, and in lieu thereof allege that the judgment should have been in accordance with the consent of counsel in the case that the land should be partitioned, and that other issues in the case be by consent withdrawn, and that in pursuance of the understanding at the time the verdict and judgment ivere taken for partition only, but that this consent by the defendant’s counsel was not until absolute proof of petitioners’ title had been introduced upon the trial.”</p> <p>TJpon motion of defendant’s counsel the court dismissed the petition as amended. To this ruling the plaintiffs excepted.</p>

<p>Petition for injunction. Before Judge Meadow. Warren superior court. October 8, 1909.</p> <p>W. W. Pilcher and others, as citizens and taxpayers of Warren county, filed their equitable petition against the commissioners of roads and revenues of that county, and the Falls City Construction Company, seeking to have the contract made by the county commissioners with the construction company for the erection of a county court-house declared illegal, and to enjoin them from carrying it out. It was also sought to enjoin the holding of an election to determine the question of issuing bonds for the building of the court-house; but on the argument in the Supreme Court that portion of the case was abandoned, it being conceded that the election had already been held, and had resulted adversely to the issuance of bonds. The grounds on which the plaintiffs based their contention as to the illegality of the contract were, in brief, as follows: The notice which was published by the commissioners in advertising for bids for the erection of the courthouse was insufficient, in that it did not show even approximately the cost of the building to be erected; it was not sufficient as to the character of the building or the terms and conditions on which it was proposed to award the contract; it did not state definitely the terms and time of payment, or the amount to be paid, or when the final payment was to be made; it did not show whether the building was to be delivered furnished or unfurnished; it did not state the size of any room or office, or the height of the joists, or attempt to give any dimensions of the court-room, or what the height of the ceiling should be; and the notice was signed only by the chairman of the board of commissioners. The contract was alleged to be illegal because the notice was not sufficient, and also for the following additional reasons: that at the time of its making there were not sufficient funds in the hands of the treasurer of the county to pay for its performance; that when it was executed no direct tax was levied sufficient, together with the funds in the treasury, to pay the amount which would be due under it; that the tax levy which was made for the erection of a court-house was revoked; that the contract was not to be completed during the year 1909, when it was made; that it was not to be completed till April 1, 1910, and, there not being funds in hand and no direct tax levy sufficient for the purpose, this was the creation of -a debt; and that by one provision of the contract it was sought to make the county liable for litigation which might arise on the part of the contractors of other persons. By amendment it was alleged, that the contract was also illegal on the ground that it was signed by the chairman of the board, and not by the other commissioners; that he had no power to contract, and the other commissioners could not delegate such power to him. The notice which was published stated that at a certain time the board of commissioners of roads and revenues would receive sealed proposals for furnishing materials and providing ■the labor required for the building of a court-house at Warren-ton, Georgia, according to the plans and specifications prepared by named architects and on file and open to inspection at the office of the ordinary and clerk of the board of commissioners; that all bids should be delivered sealed to the board of commissioners on or before the time mentioned, and should be accompanied by a letter from a surety company stating that it would furnish bond for the bidder, if the work should be awarded to him; that a certified check for $3,000, payable to the order of the chairman of the board, must accompany each bid, to be forfeited to the county should the contract be awarded to the bidder and should he fail within twenty days to execute a bond in double the amount of the bid, for the faithful performance of the contract; that bids should be made out on proposal blanks furnished by the architects; and the contractor to whom the work should be awarded was required to possess resources .and to furnish evidence to the satisfaction of the architects and board of commissioners that he was skilled and experienced in fireproof construction, and also experienced in building houses of the character required. It was stated that “the building will be 61 -5"x83'-5" in size, with re-enforced concrete footing, with exterior walls of stone and pressed brick.” Under the head of "Arrangement of rooms to be as follows,” there was a statement of a basement room, the rooms which were required on the first floor and those on the second floor. Among the latter was the item "Court-room 46'x49'.” Then followed the statement, “All as more particularly described in the minute and detailed specifications of the work filed and open to inspection at the office of the ordinary and clerk of the board of commissioners.” It was declared, that the first and second floor construction and the ceiling and roof would be fireproof, the roof to be of slate and copper, or other material as specified; that all the openings of the first floor, where marked, both doors and windows, would be of metal, the wainscoting compound tile, the corridor floors, where marked on the plan, “terrolithie.” It was stated that the contractor would be'required to start work on or before September 1, 19Ó9, and that the building should be finally completed on or before April 1, 1910. Bidders were informed that a set of the plans and specifications might be obtained from the architects. The statement as to the payment by the county was that “Payments will be made monthly of 75% of the proportionate part of the contract executed, upon the certificate of the architect.” This was signed by the chairman of the board. The specifications prepared by the architects were full and detailed as to the nature and character of the work. In these specifications thd following statement was included: “Payments on work, amounting to 75% of the proportionate part of the contract executed, shall be made about the first day of each month, and properly presented and signed, to the board of commissioners. The retained 25% shall be due and payable at final completion of building, and the contractor shall retain possession of and be responsible for the entire building until full settlement is made.” The contract which was executed provided for the commencement of the work by September 1, 1910, and its completion within 150 working days. It provided, that the price to be paid for the entire work was to be $24,973; that payment would be made, between the first and tenth of each month, of 75% of the value of material ordered and accepted and work properly done, upon the estimate of the architects; and that the remaining 25% would be due and payable to the contractor upon the completion of the building. It described in general provisions the work to be done, and referred to the plans and specifications of the architect. It was signed by the contractor, and by the chairman of the board of commissioners. The board of commissioners passed a resolution, accepting the bid of the Falls City Construction Company, and authorizing the chairman to execute a contract based thereon. On the clay when the contract above described was signed, the board passed a resolution, reciting that it had been executed and presented to them, and that it was ratified, approved, and confirmed, and ordered to be recorded on the minutes. The contract was dated August 16, 1909. On June 8 preceding its execution, the board of commissioners levied a county tax for the year, one item of which was "One dollar and thirty-five cents on the one hundred dollars, to build a courthouse in and for said county.” At the same meeting a separate resolution was adopted, to the effect that the board reserved the right to "remit the direct tax levy” that day made for courthouse purposes, in case the board should later submit to the voters of the county the question of issuing bonds for the building of the court-house and the election should' result in favor of such bonds. At the same meeting still another resolution was adopted, to the effect that the board of commissioners might, in their discretion, collect the tax, that day levied for the purpose of building a court-house, in four equal annual instalments, in the fall of 1909, 1910, 1911, and 1912 respectively, "though this order shall not in any way affect the present direct levy of said tax and the authority to collect all or any part of it at any time in the discretion of said board.”</p> <p>The presiding judge refused to grant an injunction except as to one provision in the contract, by which the commissioners agreed that, if there should be any suit by injunction or otherwise respecting the acts of the contractor or the prosecution of the work or location of the building, or the making of the contract, or the collection of money due under it, the county should pay all costs of defending such suit, or arising out of it, without cost to the contractor, and should hold it harmless except in case of default in complying with the contract. The judge held, however, that this clause did not vitiate the entire contract, or require its execution to be enjoined as a whole. The complainants excepted.</p>

<p>Motion for new trial. Before Judge Spence. Decatur superior court. December 22, 1908.</p> <p>A motion for a new trial pending in Decatur superior court was called for hearing in its regular order at the November adjourned term of said court. The respondent in the motion announced ready, but the court called attention to the fact that a leave of absence had been granted to the attorney for the movants, and stated the grounds upon which the motion for a leave of absence had been granted. Counsel for the respondents insisted upon a hearing and opposed any postponement, stating that the motion for a new trial had been pending for over a year, that counsel representing the movants had "shown no diligence whatever in trying to get the motion perfected and ready for trial,” that respondent’s counsel had never seen a single paper relating to the motion except the original motion for a new trial, and that he had, been shown no brief of the evidence prepared by movants and no amended grounds to the motion. On this statement made by counsel in his place, it appearing to the court that the counsel for movants had been guilty of laches in the preparation of his motion, the court passed an order dismissing the motion for a new trial for want of prosecution. This order was granted on December 31, 1908. Subsequently to that date and after the judge had returned to Mitchell county, but while the superior court of Decatur county was still open by order of the judge entered on the minutes, the record in this motion for a new trial was received by the judge at chambers (Mitchell county) from the attorney1 for the movant, who, in a letter accompanying the record, called attention to the fact that he was granted a leave of absence from the court which was held on December 31, 1908, and in this letter statements were made controverting the statements made by counsel for the respondents, at the time of granting the order of dismissal, to show laches on the part of counsel for ■the movants. Dpon considering this letter and statements therein made, the judge reached the conclusion that the court “had been wrong in dismissing said motion for want of prosecution, . and the judge determined to revoke the order dismissing said motion for want of prosecution, and did so, and immediately approved the brief of evidence and the amended grounds of the motion for a new trial which was presented to him in said case, and thereupon granted a judgment overruling the motion for a new trial in said case. This last judgment overruling the motion for a new trial was passed at Camilla, Georgia, and not in Decatur county, but it was understood by the judge that by unanimous agreement of the attorneys of Decatur county the superior court of Decatur county had been held open until the 31st day of December.” The order dismissing the motion for a new trial was as follows: “On motion of attorneys for plaintiff in ejectment, the above motion for new trial is hereby dismissed for want of prosecution, and that the officers of the court do recover..........costs from said defendant in ejectment. December 31, 1909, December adjourned term, 1909. W. N. Spence, J. S. C. A. C.”</p> <p>The order passed reinstating the motion is in the following language : “An order having passed on December 31, dismissing said motion for new trial, and it appearing that the court had granted T. S. Hawes, sole counsel for the movant, a leave of absence for that day, and said court being now in session, the same not having been adjourned, it is ordered that said order of dismissal be vacated and set aside and said ease reinstated. December 22, 1909. W. N. Spence,.J. S. C. A. C.”</p> <p>“Said order, ruling, and judgment reinstating said ease was signed without any written petition, application, or motion, except a letter from T. S. Hawes, on the part of the movant, E. Swindell & Co., or his counsel, made or filed in the office of the superior court of Decatur county, and without being based on any petition, application, or motion in writing so filed, except as above stated, and also without having served the plaintiff or his counsel with notice of any petition, application, or motion to reinstate said cause, and neither the plaintiff nor his counsel was present at the granting, ruling, and judgment, granting and 'ordering said case reinstated, and had no opportunity to resist said order, ruling, and judgment granted, reinstating said case. To this ruling, order, and judgment of the court the plaintiff excepted and now excepts and assigns the same as error, because his honor W. N. Spence was in Mitchell county at the time he granted the order, judgment, and ruling reinstating said case, and the jurisdiction of said case and motion, and the jurisdiction of said ease or motion, had never been transferred to Mitchell county at the time his honor granted said order, ruling, and judgment, from Decatur county, where the land lies, by order transferring the same; it was error for the judge to hear the case in another county, to wit, Mitchell county; the judge, being at the time of granting the order, ruling, and judgment in Mitchell county, had no jurisdiction of the case, the same not having been transferred from Decatur county to Mitchell county, applicant insists. To which order, ruling, and judgment the plaintiff excepted and now excepts and assigns the same as error, for the reason that when his honor W. N. Spence reinstated said case the superior court of.Decatur county was not in actual session, with the judge present at Bainbridge, at the time of granting said order, ruling, and judgment reinstating said case. The plaintiff also excepted to said judgment reinstating said case, and now excepts and assigns the same as error, because his honor “W. N. Spence reinstated said case for the defendant and movant without the said movant and defendant making petition, application, or motion in writing, except 'by letter as above stated, and without serving notice of any petition, motion, or application on the counsel for plaintiff, and without giving the counsel for plaintiff any opportunity of resisting said reinstatement of said case and motion, to which judgment, ruling, and order the plaintiff excepted and now excepts and assigns the same as error, because the movant and defendant had had his day in court, and before any new and extraordinary relief could be obtained or adjudged. Plaintiff in this bill of exceptions insists it was necessary at law for the defendant to file his regular petition, application, or motion in writing, obtain his rule nisi, and serve the counsel for the plaintiff, plaintiff in error insisting that the said.case ended and final judgment had been rendered when said motion for new trial was dismissed on the 21st day of December, 1908.”</p>

<p>Rule to distribute money. Before Judge Parker. Pierce superior court. November 16, 1908.</p>

<p>Equitable petition. Before Judge Spence. Decatur superior court. December 22, 1908.</p>

<p>1. The act approved August 17, 1903 (Acts 1903, p. 92), regulating tlie sale of goods, vares, and merchandise in bulk, has no application to a sale of substantially all the lumber manufactured by one who operates a sawmill at which trees are manufactured into lumber.</p> <p>2. An oral motion in the nature of a general demurrer may be made at any time before verdict.</p>

Motion to set aside judgment. Before Judge Spence. Turner superior court. September 18, 1908.

<p>Action on bond. Before Judge Pendleton. Fulton superior court. June 8, 1908.</p>

<p>Injunction. Before Judge Park. Worth superior court. April 3, 1909.</p>

Action for damages. Before Judge Pendleton. Eulton superior court. September 28, 1908. Mrs. Josie Johns brought suit against the Georgia Railway & Electric Company to recover damages for a personal injury received from falling into a hole while alighting from a street car.

Injunction. Before Judge Hammond. Bichmond superior court. May 4, 1909. This case grows out of a lease between the parties, covering property in the City of Augusta, Ga., known as the “Albion Hotel.” One branch of the litigation was previously before this court, the decision in which will be found reported in 131 Ga. 840 (63 S. E. 631, 19 L. B. A. (N. S.) 966).

<p>Application for alimony. Before Judge Charlton. Chatham superior court. November 21, 1908.</p>

Complaint for land. Before Judge Felton. Bibb superior court. December 29, 1908. Thomas F. Thompson and Mrs. M. E. Whitehead brought their petition against Jesse B. Hart for the recovery of certain property situated in Bibb county, Georgia, and described in the petition.

<p>Appeal. Before Judge Worley. Hart superior court. September 25, 1908.</p>

<p>Motion to set aside judgment. Before Judge Edwards. Polk superior court. October 26, 1908.</p>

<p>Trover. Before Judge Edwards. Douglas superior court. November 20, 1908.</p>

<p>Appeal. Before Judge Clark, of the city court of Forsyth. Monroe superior court. August 28, 1908.</p>

<p>Complaint. Before Judge Eeagan. Fayette superior court. September 21, 1908.</p>

<p>1. A railroad company is bound to stop its passenger-trains in response to proper signals at a flag-station at which it is in the habit of stopping trains of that character.</p> <p>(a) There was no error in overruling the special demurrers.</p> <p>2. The General Assembly by enactments codified in the Penal Code, §420, wherein the running of freight and excursion trains on Sunday is made a misdemeanor and wherein regular trains for the carrying of the mails or passengers are expressly excepted from its provisions, is an expression of public policy as to the legality of running the excepted trains on Sunday, and a legislative construction that the running of regular mail and passenger trains comes within the exception of Penal Code, §422, which makes it a misdemeanor for any person to pursue his ordinary calling on the Sabbath day, works of necessity and charity excepted.</p> <p>3. In a suit for damages alleged to have been occasioned by the negligence of a defendant railroad company, a charge “that the plaintiff must further show that his injury, if any, was not caused by his own negligence and that he could not have avoided the injury by the exercise of ordinary care and diligence,” is not open to the criticism that it confused and blended §§2322 and 3830 of the Civil Code to the prejudice of the defendant.</p> <p>4. The verdict was not excessive.</p>

<p>1. The declarations of an alleged agent, though made dum. fervet opus, are not admissible to prove his agency.</p> <p>2. The admission of hearsay testimony, though properly objected to, is not cause for a new trial when the fact sought to be proved by it has been admitted, upon the trial, by the opposite party.</p> <p>3. The court erred in giving the instructions excepted to, as there was no evidence to authorize them.</p>

<p>Application for mandamus.</p>

<p>Where a person brings against a coterminous landowner a statutory complaint for land, describing the premises sued for as “fifty acres on the east side of lot No. 490 in the 8th district of said county, bounded north by lands of J. P. McG-raw [the plaintiff], east by original lot line between lot No. 490 and lot No. 489, south by land of D. A. Crosby [the defendant], and west by land of D. A. Autrey,” the description is too uncertain to be the foundation of a valid judgment and writ of possession thereon, and a motion to dismiss .the petition for that reason should be sustained.</p>

<p>1. In a proceeding under the Civil Code, §2588, by a foreign guardian to have transferred to him property of his ward in the hands of an administrator in this State, the administrator and resident guardian, more than forty days prior to the term of the court of ordinary at which the written notice stated application would be made for an order of transfer, made written acknowledgment of due and legal service of such notice; the application was filed more than thirty days before such term; and the resident guardian appeared and, without raising any point as to insufficiency of notice, filed objections to the granting of an order transferring the property, which were sustained by the ordinary. Held, that upon the trial, on appeal, before the judge of the superior court, it was not error to hold that the notice to the resident guardian was sufficient, whether the statute means that twenty days notice shall be given prior to the filing of the application, or prior to the presentation of it to the ordinary.</p> <p>2. Upon the hearing in such a proceeding, the exhibition to the court, by the applicant, of a properly authenticated exemplification as required by the Civil Code, §2588, showing his compliance with all the provisions of such section, furnishes, in the absence of any evidence to the contrary, sufficient proof of the domicile of the applicant and his ward within the jurisdiction of the foreign court from which the exemplification came, especially where it appears therefrom that the applicant was not only the duly appointed guardian of the person of his ward but also the father of the ward.</p> <p>3. If upon the hearing it should appear that the value of the property in the hands of a resident guardian or administrator, for the transfer of which the application is made, is more than half the amount of the bond given by the foreign guardian in pursuance of paragraph 1 of section 2588 of the Civil Code, and it should further satisfactorily appear to the court of ordinary, or the judge of the superior court on appeal, from all the facts and circumstances of the case, that the foreign guardian had acted in good faith in executing the bond, believing it to be in double the amount of the value of such property, then the presiding judge may, in his discretion, allow a new bond' to be given in accordance with the provisions of the above-cited section of the Civil Code, giving adverse parties reasonable time after the filing, in the court where the proceeding is pending, of a properly certified exemplification from the foreign court, showing the execution of the new bond, in which to investigate the sufficiency of the bond.</p> <p>4. In a proceeding of this character, the court before which the application for a transfer of the property is pending has no power to direct, or authorize, an administrator to sell real estate, or- any interest therein, at private sale, for the purpose of a settlement with the foreign guardian.</p> <p>5. Where the property which a foreign guardian seeks to have transferred to him consists of an undivided interest of his ward in an estate in the hands of a resident administrator, the court has no power to order such administrator to sell such undivided interest for the purpose of a settlement with the foreign guardian.</p> <p>6. The judgment of a court of ordinary appointing a guardian can not be collaterally attacked, unless want of jurisdiction appears on the face of the record.</p>

<p>1. In an action against a street railway company to recover damages for the death of a person by alleged negligence,, the relative questions of the diligence or negligence of the deceased and the defendant are for determination by the jury, where it appears that the street railway company operating open cars allowing passengers egress from either ' side, stopped its car just after clearing a cross street, and a passenger alighted' on the side next to a parallel track and proceeded five or six steps along the space between the tracks, until he reached the street crossing, and then attempted to cross the ^parallel track, when he was struck and killed by a car on the parallel track running at a dangerous and reckless rate of speed, notice of the approach of which was not given by the sounding of a gong, and the ordinary noise of its running could not be heard because of the loud and rumbling noise made by the departing car from which the passenger had just alighted, and which could not be seen because it had not come into view, and also because of the shadow produced by an electric street lamp. A petition by the widow of the deceased against the railway company, alleging the foregoing facts, is not open to general demurrer.</p> <p>2. In an action of the character described in the foregoing note, it is competent for the plaintiff to allege and prove, as explaining the care and diligence of the person killed, that the car from which the deceased alighted was not equipped with bars, nor was the deceased warned by the railway company’s servants, as they saw him alight from the side of the car next to the parallel track, of the danger incident thereto.</p>

Indictmeut for murder. Before Judge Mitchell. Tift superior court. July 29, 1909. Cleveland Westbrook was convicted of murder, without recommendation. Iiis motion for new trial was overruled, and he excepted. In the motion it was contended that the evidence was of such character as to reduce the homicide to voluntary manslaughter, and complaint was made that the judge failed to charge the jury the law applicable to that offense.

<p>Indictment for rape. Before Judge Morris. Cobb superior court. September é, 1909.</p>

<p>Indictment for murder. Before Judge Parker. Wayne superior court. August 27, 1909.</p>

<p>Indictment for murder. Before Judge Parker. Jeff Davis superior court. September 7, 1909.</p>

<p>Indictment for murder. Before Judge Lewis. Jasper superior court. September 27, 1909.</p>

<p>1. Whether sales made under the provisions of a decree of a superior court should be confirmed is a matter within the sound legal discretion of the court.</p> <p>2. Under the facts of this ease, it can not be said that the judge of the superior court, in refusing to confirm the sale, abused the discretion vested in him.</p>

Petition. Before Judge Mitchell. Tift superior court. July 9, 1908. Watson obtained a judgment against Wade in Tift superior court, which on exception was reversed. Wade v. Watson, 129 Ga. 614. Before the entry of the remittitur from the Supreme Court, Watson filed a petition to the superior court, setting forth objections to such entry, and praying for equitable relief.

<p>Trover. Before Judge Martin. Twiggs superior court. October 13, 1908.</p>

<p>Probate of will. Before Judge Martin. Pulaski superior court. October 7, 1908.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. October 13, 1908.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. October 20, 1908.</p>

<p>1. An auditor is an officer of the court, whose office is to present to the court in intelligent form the various contentions of the parties and his rulings and conclusions thereon. Where a case is referred to an auditor, the court making the reference does not. lose jurisdiction of either the parties or subject-matter; and if the auditor fails to hear the case within the time fixed for filing his report, the time may be extended by the court, or the parties may waive the stipulation as to time of filing the report, and proceed with the hearing.</p> <p>(a) So much of the decision in Peavy v. McDonald, 119 Ga. 865, as holds that after the expiration of the time allowed in the order of reference an auditor loses jurisdiction, and that it is not in the power of the parties to waive his want of jurisdiction, is reviewed and overruled.</p> <p>2. A party to an equitable action in which an accounting is prayed, who consents to an order of reference and proceeds with his case before the auditor, is estopped from objecting to the report on the ground that the auditor heard the case after the time fixed in the order for filing his report.</p> <p>3. Where a party brings a petition to reopen, on the ground of fraud, a settlement which has been closed by note, and the defendant prays judgment against the plaintiff on the note, the burden of proof is on the plaintiff.</p>

<p>The petition in this ease is to be construed, as an action for damages resulting from a breach of public duty in failing to supply cars for the shipment “of lumber, wood, and slabs.” The only request for ears alleged in the petition was “a standing order . . for five cars a day.” Held, that this order was too indefinite to become the basis of a cause of action for damages resulting from an omission to furnish ears.</p>

<p>Motion to set aside judgment. Before Judge Charlton. Chatham superior court. December 30, 1908.</p>

<p>Where it is conceded in the Supreme Court by counsel for both parties that since the refusal of an interlocutory injunction by the trial judge the party sought to be enjoined has fully performed every act against the doing of which an injunction was prayed, and the order passed by the judge upon his certification of the bill of exceptions did not amount to a supersedeas of his judgment refusing the interlocutory injunction, the writ of error will be dismissed.</p>

<p>Attachment and claim. Before Judge Felton. Houston superior court. October 7, 1908.</p>

<p>Petition for injunction. Before Judge Wright. Floyd superior court. August 5, 1909.</p>

<p>Petition for injunction. Before Judge Park. Grady superior court. May 3, 1909.</p>

<p>Petition and intervention. Before Judge Ellis. Fulton superior court. November 2, 1908.</p>

Complaint for land. Before Judge Pendleton. Fulton superior court. December 10, 1908. Frances A. Bobinson brought suit against W. A. Vernoy and his tenant to recover certain described premises located in the city of Atlanta.

<p>In a suit for a personal injury the evidence for the plaintiff showed as follows: Tlie plaintiff, with full knowledge of the facts and of the dangerous character of the place, left a public street at night, went into a railroad yard where there were many tracks and where trains were constantly being made up and cars being shifted, walked along a space between tracks for a hundred and fifty or two hundred feet, and there sought to cross a track in order to reach a place where a public street abutted against the yard at a different level from the latter and with a fence across the end of it. In approaching the track he saw the end of a car a few feet from him, but could not tell certainly whether it was in motion or still, and while crossing he was run over by it and hurt. No knowledge of the plaintiff’s presence at the scene of the injury was shown, on the part of the company’s servants, but there was evidence tending to show use by the public, for a long time, of a driveway upon the edge of the yard, which had, a year or two before the injury, been destroyed, graded, and covered with tracks, and that a number of other persons at times passed from the street which abutted on the yard to the level of the latter and thence to a public crossing, or vice versa. Held:</p> <p>1. That there was no error in granting a nonsuit.</p> <p>2. The rejection from evidence of an answer of the municipal authorities of the city where the scene of the injury was located, filed in an equitable case between it and the railroad company, involving the question whether the municipality had rights in regard to the driveway, and whether the crossing near by was a public crossing, if error at all, was not such as to require a reversal under the evidence.</p>

<p>1. An affidavit made to obtain the issuance of an attachment for purchase-money, which stated that the amount named was due for the purchase-money of certain articles set forth in a list, and which were in possession of the defendant, was amendable by adding a more definite description of the property and stating where it was located, in order to more fully identify it.</p> <p>2. The writ of attachment issued upon such affidavit, which commanded the levying officer “to attach and seize so much of the property of” the defendant as will make a named sum and all costs “out of the property above described,” was a specific attachment against the property described, and was not objectionable as being a general attachment against the defendant.</p> <p>3. Where an affidavit to obtain an attachment on behalf of a corporation was made by its president, and he executed the attachment bond on behalf of his principal, and also signed it individually as surety, this was not a void bond, and there was no error in refusing to dismiss the proceeding on the ground that such agent was incompetent to become the surety of his principal, and that the proceeding was therefore void.</p>

Petition for injunction. Before Judge Pendleton. Fulton superior court. April 7, 1909. Howell filed luis equitable petition against Ware & Harper, alleging, in brief, as follows: On September 22, 1908, a suit was filed in the city court of Atlanta, returnable to the November term thereof, by Ware & Harper against the present petitioner. It was based on a claim for $137.50 as commissions due to the plaintiffs in that suit for selling a piece of real estate belonging to Howell.

<p>1. In a proceeding by a railroad company to condemn land’, the landowner is not only entitled to have compensation for the value of the land proposed to be taken, but also he is entitled to damages for any depreciation in the value of the balance of his land, caused by the construction and operation of the railroad through it; and in estimating such damages, evidence relating to the effect on its market value of smoke, cinders, and noise, resulting from operating a railroad through the land, is competent.</p> <p>2. Yerbal inaccuracies in a charge, not calculated to mislead or obscure the meaning of the court, will not require a new trial.</p> <p>3. Where, on the question of the value of the land taken and the consequential damages to the remainder of the lot, the amount of the verdict is within the -range of the estimates of the different witnesses-, and the amount is approved by the trial judge, this court will not interfere on the ground that the verdict is excessive.</p>

<p>Under tlie provision contained' in the Penal Code of 1895, § 381, that, in prosecutions for adultery, fornication, or adultery and fornication, “it shall, at any time, be within the power of the parties to prevent or suspend the prosecution and the punishment by marriage, if such marriage can be legally solemnized,” where a man was convicted of fornication, and then lawfully married the woman with whom the offense was committed, but was afterwards sent to the chain-gang in accordance with the sentence based on the verdict of conviction, there was no error in discharging him from custody under a writ of habeas corpus.</p>

<p>Action for damages. Before Judge Charlton. Chatham superior court. October 26, 1908.</p>

Action for damages. Before Judge Felton. Houston superior court. October 1, 1908. The Elberta Peach Company Limited brought an action against the Georgia Southern and Florida Railway Company for its delay in furnishing cars to petitioner, in accordance with an alleged contract between the parties.

<p>Trover. Before Judge Felton. Crawford superior court. January 9, 1909.</p>

<p>Petition for injunction. Before Judge Felton. Bibb superior court. March 13, 1909.</p>

<p>Equitable petition. Before Judge Edwards. Polk superior court. September 8, 1908.</p>

<p>Complaint. Before Judge Brand. Gwinnett superior court, December 16, 1908.</p>

<p>1. Where to the order of the court overruling a motion for a new trial, in a case in which a verdict and judgment were rendered for the plaintiff in a suit on account, the defendant filed a bill of exceptions, but failed “on or before filing the bill of exceptions” to pay all costs and give • the bond required by the Civil Code, § 5552, or in lieu thereof to make the affidavit provided for in such section: held, that the payment of all costs and the filing of a bond several weeks after the bill of exceptions was filed would not cause a supersedeas to exist.</p> <p>2. A provision in the rule nisi issued upon the motion for a new trial, that “It is hereby ordered that this order act as a supersedeas in said case until the further order of the court,” did not have effect after the order of the court overruling the motion.</p> <p>3. Where the defendant, without excuse, failed to obtain a supersedeas, and the plaintiff had execution issued upon such judgment and levied upon tlie property of the defendant, the latter could not have a sale of the property enjoined because the plaintiff was a non-resident.</p> <p>4. The court committed no error in refusing to grant an interlocutory injunction.</p>

<p>Eeceiversbip. Before Judge Ellis. Eulton superior court. July 12, 1909.</p>

<p>Petition and intervention. Before Judge Pendleton. Pulton superior court. December 5, 1908.</p>

Exceptions to auditor’s report. Before Judge Worrill. Clayton superior court. December 14, 1908.

<p>Equitable petition. Before Judge Hammond. Biebmond superior court. January &5, 1909.</p>

<p>Equitable petition. Before Judge Worley. »Elbert superior court. September 16, 1908.</p>

<p>Appeal. Before Judge Worley. Hart superior court. September 35, 1908.</p>

<p>Equitable petition. Before Judge Worley. Elbert superior court. September 14, 1908.</p>

<p>Equitable petition. Before Judge Gober. Cobb superior court. November 17, 1908.</p>

<p>Action for damages. Before Judge Brand. Gwinnett superior -court. December 16, 1908.</p>

<p>Complaint. Before Judge Worley. Oglethorpe superior court. 'October 18, 1908.</p>

<p>1. It was not error to charge: “Wherever- a person kills another, and kills him with an intention to kill him, that intention is malice itself, if it is a deliberate intention unlawfully to take human life.”</p> <p>2. In view of the whole charge, and when considered in connection with its context, and with the evidence in the ease, the following instruction was not erroneous, viz: “That which was justifiable on the part of the deceased person, and so known to the slayer, can not be legal provocation to the slayer. In other words, if a person does an act which [he] is justifiable under the law in doing — if a person shoot and kill another because the deceased did some act that he was justifiable in doing under the law, that would not constitute any legal excuse for the killing.”</p> <p>3. The evidence authorized the verdict, and the court did not err in refusing to grant a new trial.</p>

<p>Affidavit of illegality. Before Judge Gober. Cobb superior court. November 23, 1908.</p>

<p>1. In. a guit by a vendee against a vendor to perform specifically a contract for the sale of land' in gross, where the number of acres 'are specified as “more or less,” and the vendee desires to claim compensation for a deficiency in quantity, the vendee must allege that in making the contract of sale the vendor was guilty of actual fraud in misrepresenting the quantity.</p> <p>2. A material representation falsely made by a vendor to a vendee to . induce a sale, and made with a knowledge of its falsity, amounts to-actual fraud.</p> <p>3. The petition set out a cause of action as against a general demurrer. '</p>

<p>Where an engineer, whose duty it was to run a train from a point where it had been made up on to the main line of a railroad and' thence to its destination, left his ordinary post of duty and went upon the tender, and while returning to the engine, which was going around a curve at a speed of about fifteen miles an horn-, received an injury which could not have happened except for his going upon the tender, , and where the evidence failed to show that his duty called him there, or that he was directed to go there by any person having authority to give such command, in an action brought by his widow to recover for hjte homicide, a nonsuit was properly granted.</p>

<p>1. An assignment to a widow of a year’s support in “four hundred and fifty acres of land, more or less, including homestead, — $450.00,” is not necessarily void on account of the vagueness of the description. Extrinsic evidence is receivable to apply the description to its subject-matter. Where it appears from extrinsic evidence that the husband of the widow, at the time of his death, owned two non-contiguous tracts of land, upon one of which he continuously lived for many years prior to his death, and' which was known as his “home place” and was estimated to contain about 450 acres, and that the widow, immediately after the judgment assigning her a year’s support, took possession of the land, and has continuously remained in possession, claiming it under the judgment of year’s support, these facts are sufficient to apply the judgment of year’s support to its subject-matter, and relieve it of any apparent uncertainty.</p> <p>2. One invoking the conduct of another as constituting an estoppel in pais must show that he has. acted thereon to his detriment, or has been hurt thereby, before he can successfully urge such, conduct as an estoppel in pais.</p>

<p>Exceptions to auditor’s report. Before Judge Hammond. Bichmond superior court. January 6, 1909.</p>

<p>Equitable petition. Before Judge Edwards. Douglas superior court. May 8, 1908.</p>

<p>Bevival of judgment. Before Judge Gober. Cobb superior court. November 16, 1908.</p>

Injunction and receiver. Before Judge Beid, of the city court of Atlanta. Fulton superior court. April 15, 1909. The Cleveland Woolen Mills and certain other parties, alleging themselves to be creditors of J. T. Moody, filed a petition against him, .prajdng for an injunction and the appointment of a receiver.

<p>Action for damages. Before Judge Charlton. Chatham superior court. November 14, 1908.</p>

<p>Equitable petition. Before Judge Worley. Elbert superior court. September 16, 1908.</p>

<p>Claim. Before Judge Worley. G-winnett superior court. December 10, 1908.</p>

<p>1. A will contained the following item: “I give, bequeath, and devise to my beloved wife, Arminda 3ST. Wood, all of my lands and tenements belonging to the same in any wise, and also all my stock, and also my wagons, buggy, and also my household and kitchen furniture, all without limitation or reserve, for her to do as she thinks best for herself and all of my lawful heirs; and also I make Archa M. Wood, equal with the rest of my heirs.” There was no other provision qualifying or explaining this item, nor did the evidence throw light upon it further than,to show that the testator owned one hundred acres of land, on which his widow, who was feeble, lived and from which she derived a support. Held, that she had authority to convey to one of the children of herself and the testator twenty acres of the land in fee, in consideration of an agreement that the grantee would stay with and care for the grantor during her life.</p> <p>(a) The consideration expressed in the deed was natural love and affection; but the plaintiffs alleged and sought to show that the real consideration was such a promise as that stated above.</p> <p>2. There was no evidence showing that the grantor did not know the statement of the consideration in the deed, or had not sufficient opportunity for knowing it; and a request to charge based on a contrary hypothesis was properly refused.</p> <p>3. If a deed conveying land in fee simple was made in consideration that the grantee agreed to remain with the grantor and wait on and care for her, and a year or so thereafter the grantee moved' away and married, this alone would not render the deed void, but in the absence of fraud or special facts, such as insolvency, the remedy would be by an action for breach of the contract. MeOmdle v. Kennedy, 92 Oa. 198 (17 S. E. 1001, 44 Am. St. E. 85) ; Lindsey v. Lindsey, 62 Oa. 546; Kylle v. Kytle, 128 Ga. 387 (57 S. E. 748).</p> <p>4. When the evidence for the plaintiffs tended' to show that at the time when or before the deed, which expressed on its face a consideration of love and affection, was executed, a parol promise of the grantee to stay with and care for the grantor, who was feeble, was made in 1896, and that the grantee left the place and married during the following year, and ceased to remain with or care for the grantor, but that the grantor never sought to cancel or rescind' the conveyance before her death in 1905; and where in 1907 a person who was her administrator, and also that of the testator, and the other heirs of herself and the testator sought to set aside the conveyance and recover the land, they were not entitled to recover, although they alleged insolvency of the grantee at that time, and one or two of them testified that she had nothing of which they knew except her interest in the estate.</p>

<p>Claim. Before Judge Kimsey. Babun superior court. November 24, 1908.</p>

<p>Where a mortgagor, on maturity of his debt, pays to the mortgagee a certain sum of money on the debt and' executes a new note for the balance, which he secures by hypothecating warehouseman’s receipts for nine bales of cotton, being the same cotton covered by the mortgage, and the mortgagee enters upon the note and mortgage the word “satisfied,” and surrenders them to the mortgagee, and the mortgage is duly canceled on the record, this amounts to an extinguishment of the mortgage, and the new security is inferior to an intervening mortgage on .the same property, of which the first mortgagee had notice at the time he canceled his mortgage and accepted the new security.</p>

<p>Equitable petition. Before Judge Worley. Gwinnett superior court. September 1, 1908.</p>

<p>•Complaint for land. Before Judge Brand. Gwinnett superior court. December 6, 1908.</p>

<p>Equitable petition. Before Judge Gober. Forsytb superior court. November 10, 1908.</p>

<p>Injunction and receiver. Before Judge Mitchell. Berrien superior court. September 10, 1909.</p>

<p>Action for breach of contract. Before Judge Pendleton. Fulton superior court. December 24, 1908</p>

<p>1. A paper signed solely by a party who claims a cause of action against another as a tort-feasor, acknowledging the payment of certain sums of money as in full settlement thereof, subject to certain terms and conditions therein expressed, is to be considered as an accord on condition or conditional release; and the failure of the alleged tort-feasor to comply with the conditions does not render him liable ex contractu as for a breach of the condition. Non-compliance with the conditions of the settlement will prevent the settlement from being pleaded as a full accord and satisfaction to the original liability.</p> <p>2. Equity in a proper ease will reform a contract so as to make it speak the actual agreement between the parties; but courts will not make contracts for parties under the guise of reforming a unilateral undertaking.</p>

Ejectment. Before Joseph E. Pottle, judge pro hac vice. Greene superior court. January 20, 1909. In 1903 Anne E. Brower and her husband, L. W. Brower, contracted to sell to Lightfoot and others a tract of land in Greene county.

<p>Petition, for injunction. Before Judge Parker. Thomas superior court. February 37, 1909.</p>

<p>Action for breach of contract. Before Judge Ellis. Eulton superior court. January 9, 1909.</p>

<p>1. In an action on a note purporting to be signed by a partnership alleged to be composed of A, B, and C, service was had on B and C, but there was no return of service as to A. No plea was filed by B. The defendant C filed a plea setting up the defense that he did not sign the note nor was any one authorized by him to sign the same, that the note was executed after the partnership had been dissolved, and that the plaintiff and the payee had notice of the firm’s dissolution prior to the execution of the note. A verdict was rendered in favor of C, and in favor of the plaintiff against the partnership and B individually. The plaintiff moved for a new trial, and the rule to show cause was served on 0, but not upon B. At the hearing of the motion for new trial 0.moved to dismiss the motion, because B was not served. Meld, that it was not erroneous to refuse to dismiss the motion for new trial.</p> <p>2. Where a note is given in the name of a partnership by one member of the firm, after dissolution, and such note is accepted by a creditor of the firm in renewal or exchange of a partnership note due to such creditor (which note is surrendered), such new note binds the firm, notwithstanding the dissolution, if the creditor when he received the new note had no notice that it was signed after the firm’s dissolution.</p> <p>3. The evidence did not warrant the verdict.</p>

<p>By deed which recited that a husband and wife were the parties, respectively, of the first and second part, the husband conveyed a lot of land to the wife for life and at her death to her children, with full power in the life-tenant to sell and convey the fee. The wife afterwards conveyed the land in fee to another for a fair consideration, by warranty deed, describing the land as.“being the property conveyed by A. M. Manning [the husband] to Sarah J. Manning [the wife] by deed dated seventh day of September eighteen hundred and sixty-six.” Held, that the reference in the wife’s deed to her source of title which conferred upon her a power to sell and convey the fee, in connection with the other facts stated above, was -sufficient to show that her deed was in execution of the power of sale.</p>

<p>Complaint for land. Before Judge Felton.’ Bibb superior court. November 20, 1908.</p>

<p>Injunction. Before Judge Felton. Bibb superior court. June 9, 1909.</p>

<p>Action upon, fire-insurance policy. Before Judge Fite. Warren superior court. December 15, 1908.</p>

Equitable petition. Before Judge Edwards. Polk superior-court. August 24, 1908.

The Court of Appeals certified to this court the following questions : (1) Samuel Loeb was convicted in the recorder’s court of the City of Atlanta for a violation of section 1537 of the city code of Atlanta, which was adopted by the city council on June 21, 1886, and is in the following language: Any person, firm, or corporation who shall keep for unlawful sale in any store, house, room, office, cellar, stand, booth, stall, or other place, or shall have contained for…

<p>Petition for injunction. Before Judge Felton. Bibb superior court. March 27, 1909.</p>

Action for damages. Before Judge Beagan. Pike superior court. October 9, 1908. Moore brought suit against the Southern-Bail-way Company, alleging in his petition and the amendment thereto, in brief, as follows: The defendant is a common carrier, and has an office, agent, and place of business at Moleña, Pike county, on its line of road, which is a regular station for receiving and delivering freight.

<p>1. The court did not err in overruling the demurrers to the plaintiff’s petition.</p> <p>2. The verdict against the plaintiff in error was without evidence to support it, and the court below erred in overruling the motion for a new trial.</p>

<p>Processioning. Before Judge Beagan. Pike superior court. December 16, 1908.</p>

<p>Complaint'. Before Judge Pendleton. Fulton superior court. December 1908.</p>

<p>Habeas corpus. Before Judge Brand. Clarke superior court. April 3, 1909.</p>

<p>Claim. Before Judge Kimsey. Habersham superior court. December 30, 1908.</p>

<p>Petition for injunction. Before Judge Kimsey. Hall superior court. February 17, 1909.</p>

<p>1. The evidence was not of such character as to authorize the direction of a verdict.</p> <p>2. No ruling is made on other assignments of error which are not likely to occur on another trial.</p>

<p>Equitable petition. Before Judge Edwards. Paulding superior court. September 30, 1908.</p>

<p>Ejectment. Before Judge Brand. Franklin superior court. December 18, 1908.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. December 5, 1908. Fish, C. J., and -Evans and Atkinson, JJ., being disqualified, Judges R. W. Freeman of the Coweta circuit, EL G. Lewis of the Ocmulgee circuit, and Price Edwards of the Tallapoosa circuit were designated to sit in their stead. After argument, it appearing that Judge Lewis also was disqualified, counsel agreed that the case be decided by the members of the court which heard it.

<p>Complaint. Before Judge Wright. Walker superior court. September 12, 1808.</p>

<p>1. Where a demurrer is filed and overruled, an exception to the judgment overruling the same, stating that such a judgment was erroneous and that the same was excepted to and is now excepted to and error assigned thereon, is sufficiently definite, the demurrer itself appearing in the record.</p> <p>í¡. While rulings of the trial court made with reference to the pleadings ■ are Subjects of direct exception and can not he made grounds of a motion for a new trial, the fact that in one or more' grounds of the motion for a new trial questions as to the sufficiency of the pleadings were raised will not work a dismissal of the bill of exceptions sued out on the overruling of a motion which embraces other grounds than those referred to, and contains assignments of error wliicli it is competent to make in a motion for a new trial.</p> <p>3. Nor will tlie bill of exceptions be dismissed on tlie ground that tlie verdict and judgment in favor of the plaintiff in error lias been discharged and satisfied by a payment in full of the principal and interest for which such judgment was rendered, where the allegation in the motion of the fact of such discharge and payment of the judgment is controverted by the plaintiff in error.</p> <p>4. A plea of .tender alleging a tender of the. amount of principal and interest due, when due, and that tenderor had at all times been ready and willing and able to pay said amount, is not subject to general demurrer.</p> <p>5. Unless a ground of a motion for a new trial is complete in itself, it is insufficient to raise a question for decision by this court.</p> <p>6. Assignments of error on the ground that the court erred in propounding certain questions to a witness and in admitting the answers thereto are without merit, where tlie complaining party fails to show that any objections were made at the time of the trial, either to the questions or the answers in response thereto.</p> <p>7. A condition in a bond for title that upon performance by the obligee in the bond the obligor is “to execute a good and sufficient title” means that the obligor undertakes to convey good title by a deed containing a general warranty.</p> <p>8. The evidence authorized tlie verdict finding that the plaintiff should specifically perform by executing a warranty deed as prayed in defendant’s answer.</p>

<p>Action upon life-insurance policy. Before Judge Wright. Floyd superior court. January 25, 1909.</p>

Equitable petition. Before Judge Spence. Decatur superior court. December 28, 1908. This was a suit by John E. Donalson and tbe Chattahoochee Lumber Company for specific performance of an alleged agreement to convey a certain tract of land in Decatur county, Georgia, and for an injunction to prevent interference with the property. The verdict was for the plaintiffs. The defendants excepted to the judgment overruling their motion for a new trial.

<p>Processioning. Before Judge Worrill. Miller superior court, .October 28, 1908.</p>

<p>Mandamus. Before Judge Felton. Bibb superior court. June 11, 1909.</p>

<p>1. Where upon a petition to validate bonds, pursuant to the act of December 6, 1897 (Acts of 1897, p. 82), the judge directed the respondent to show cause before him at a place within his circuit, but outside of the limits of the county proposing to issue the bonds, and on the day appointed for the hearing certain taxpayers of the county presented to him their petition to intervene in the cause for the purpose of objecting to the validation of the bonds upon the grounds therein stated, and the judge endorsed thereon an order making the intervenors parties and directing that the intervention be filed, and the clerk of the superior court of the eounty proposing to issue bonds, being present, endorsed thereon an entry of filing, and the case was then and there heard on the issues made by such intervention, and a judgment of validation Tendered, it is not a ground for dismissal of the bill of exceptions to such judgment that the intervention did not appear to have been legally filed.</p> <p>2. The structure of the petition was substantially' that which was held sufficient in Spencer v. Clarhesville, 129 Ga. 627 (59 S. E. 274).</p> <p>3. The constitution of the State provides two ways for the construction of a public improvement and paying therefor; the one for cash and the other for credit. If it is determined by the proper authorities of a county to build a court-house on credit, before any steps to that end can be taken the assent of two thirds of the qualified votfers of the county must be obtained. A contract for the erection of a court-house may be made -without a previous plebiscite vote, where the money necessary to pay therefor is either in the treasury or may be lawfully raised by the levy of a special tax for the current year. Where the county authorities lawfully contract for the .building of a court-house and levy a special tax for the current year sufficient to pay for its erection, upon the faith of which the contractor begins work, and where after the building has been one third completed the contractors have received county warrants for one third of the contract price, there is no authority of law for the county commissioners to order an election to determine whether bonds shall be issued, from the proceeds of which the cost of erecting the court-house shall be paid.</p>

<p>Petition for mandamus. Before Judge Pendleton. Fulton superior court. April 28/1909.</p>