Volume 134 — Georgia Reports

<p>Equitable petition. Before Judge Spence. Mitchell superior court.</p>

<p>Equitable petition. Before Judge Kimsey. Rabun superior court.</p>

<p>A justice of the peace, who has collected money on a judgment and who fails to pay it over upon demand to the plaintiff in judgment, may be proceeded against by rule under the Civil Code, § 4782, just as the other officers therein mentioned; and the requirement"'of one month’s written notice prior to the bringing of the suit against a justice for anything done by him in the execution of his office is not applicable in such a case.</p>

<p>•Complaint. Before Judge Gober. Forsyth superior court.</p>

Buie. Before D. W. Blair, judge pro hac vice. Gordon superior court.

<p>Equitable petition. Before Judge Freeman. Coweta superior court.</p>

<p>Action for damages. Before Judge Beagan. Fayette superior court.</p>

<p>Action upon contract. Before Judge Lewis. Baldwin superior court.</p>

<p>Complaint for land. Before Judge Lewis. Greene superior court.</p>

<p>Action for damages. Before Judge Worrill. Early superior court.</p> <p>W. A. Johnson brought suit for damages against Julius Hudspeth. Among other things he alleged as follows: On or about the 25th day of December, 1907, the plaintiff and Guss Weems entered into a verbal contract, by the terms of which Weems was to work for the plaintiff on his turpentine farm from January 1, 1908, until December 31, 1908. The agreement was that Weems was to work five and a half days each week during the year 1908. The contract was witnessed by A. H. Hartsfield. Under it the plaintiff advanced to Weems the sum of sixty dollars. While the contract was still in existence, Julius Hudspeth employed Guss Weems. He did this without the written consent of the plaintiff, and allowed Mm to remain on his premises over the protest of the plaintiff, and after the plaintiff had notified him of the existing contract. The plaintiff prayed for judgment in double the amount which he contracted to pay Weems, to wit, the sum of $572.00. The defendant demurred to the petition, because it set forth no good cause of action, and because it showed that the employment of Weems by the plaintiff was in a capacity other than as an .agricultural laborer, tenant, or cropper of agricultural lands, in that he was employed as a turpentine laborer. The presiding judge sustained the-demurrer and dismissed the petition. The plaintiff excepted.</p>

<p>1. The general rule is that courts exercising equitable jurisdiction will not enjoin criminal prosecutions; and this rule is ordinarily applicable to proceedings to punish for violations of municipal ordinances, which are quasi criminal in their character.</p> <p>2. In some cases, involving special facts, injunction may be granted against the unlawful enforcement of municipal ordinances, although they are penal in character, for the protection of property or property rights or franchises against irreparable injury; as, for instance, where, under the guise of enforcing a penal ordinance, it is manifest that prosecutions 'and arrests are threatened for the sole purpose of unlawfully taking or destroying property, or preventing the exercise of a franchise granted by the State.</p> <p>3. The present case falls within the general rule, and is not one of those involving facts where a court of equity, or a court exercising equitable powers, will grant an injunction to restrain prosecutions under a munieipal ordinance.</p> <p>(a) The question of the validity of the ordinances under which the complainant was tried and convicted in the mayor’s court, and from which judgment he carried the eases to the superior court by writs of certiorari, could be determined in those proceedings.</p>

<p>1. A suit brought against an executor by the widow of his testate, alleging that the defendant is in possession of certain property and is denying her ownership and right of possession thereof, and that such property was purchased by her with her own money 'through her deceased husband, who took a deed wherein the title to the property was conveyed to him, but delivered the deed to her and always recognized her ownership of the property; and praying that the court adjudge that she is the owner of the property, that she be put in possession thereof, that a receiver be appointed therefor, and that the executor be required to account to her for the rents received therefrom, is not a suit “respecting titles to land,” so as to give jurisdiction thereof to the superior court of the county where the land lies, the executor being a resident of another county.</p> <p>2. Where a real estate agent residing in the county in which the suit above referred to is 'brought is joined as a eodefendant with the executor, and the plaintiff seeks an injunction to prevent the agent from paying to the executor rents collected from the property, and an accounting from and judgment against both defendants for rents already collected by them (the rents collected by the agent having been paid to the executor over the protest of the plaintiff) : held, that if the relief prayed against the real estate agent can be obtained, it is collateral to and dependent upon the granting of the main relief sought against the executor, and the superior court of that county has no jurisdiction of the case under art 6, sec. 16, par. 3, of the constitution of this State, providing that “Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.”</p>

<p>Where, after arrival at destination, an interstate shipment of intoxicating liquors stored in the warehouse of a common carrier is, over his protest and without fraud, collusion or connivance on his part, seized by public officials acting under warrant issued in conformity to a law authorizing such seizures by such officials in enumerated instances, which law provides for the keeping of such liquors for 30 days before they shall be destroyed or become forfeited to the State, and authorizes the bringing of an action by any person to recover the same, and' the carrier notifies tlie consignor, or the consignor has actual notice, of such seizure in time to bring an action to recover the goods under the provision of sueli law, the carrier is relieved from liability to the consignor for non-delivery to the consignee, even though such law may be unconstitutional; it never having been judicially declared so.</p>

<p>Appeal. Before Judge Kimsey. Rabun superior court.</p>

<p>Equitable petition. Before Judge Kimsey. Lumpkin superior court.</p>

<p>Equitable petition. Before Judge Gober. Cobb superior court.</p>

<p>1. In its charge to the jury upon the trial of the case the court should' not give instructions which are unauthorized by the evidence.</p> <p>2. The vendor who sells and delivers property and receives therefor the-notes of the purchaser, in the absence of fraud, can not rescind the trade without the consent of the vendee; and the vendor must also, in order to complete the rescission, restore the status quo.</p>

<p>Action for damages. Before Judge Lewis. Greene superior court.</p>

Action upon bond. Before Judge Pendleton. Fulton superior court. The defendant in error, as receiver of the Atlanta-Birmingham Fire Insurance Company (hereinafter called the insurance company), brought suit against the plaintiff in error (hereinafter called the surety company) on a bond signed by it on October 21, 1905, as surety of Watson, Tajdor, and Sperrjg who had, on August 18, 1905, been appointed general agents of the insurance company at San Francisco, Cal.

<p>In a suit against tlie obligor and liis sureties in a peace bond given in proceedings upon tlie Renal Code, § 123S, for a breach of tlie same, judgment for tlie full amount of tlie penalty stipulated in the bond will be awarded against the defendant and his sureties in ease of a recovery.</p>

<p>Claim. Before J. P. Brooke, judge pro hac vice. Cobb superior court.</p>

<p>Foreclosure of lieu. Before Judge Wright. Floyd superior court.</p>

<p>Action for breach of warranty. Before Judge Wright. Floyd .«uperior court.</p> <p>J. M. Robertson filed his petition to the superior court of Floyd county, which alleged, among other things, substantially as follows: Mrs. Jeannette B. McGovern is a resident of the State of California, and is without the jurisdiction of the court, Mrs. Rosa M. Barnwell is a resident of Fulton county, Georgia, and Mrs.. Joseph M. Graham and A. Blair Montgomery are residents of Floyd county, Georgia. On the 1st day of April, 1905, the four persons just named executed and delivered to petitioner a deed to the following described lands, lying in the fourth district and fourth section of Floyd count}', Georgia: “The northeast half (%) of lot No. two hundred and sixty-eight (268), said whole lot being in the form of a parallelogram, and the half hereby conveyed being all that part of said lot lying north and east of a straight line drawn diagonally from the southeast corner of said lot through the central point of said lot to the northwest corner of the lot; the half of said lot hereby conveyed containing eighty acres, more or less.” The deed contained the following express warranty, to wit: “And the said parties of the first part, their heirs, executors, administrators, and assigns, the said bargained premises unto the said party of the second part, his heirs, executors, administrators, and assigns, against said parties of the first part, their heirs, executors, administrators, assigns, and all and every person or persons, shall and will warrant and ever defend by virtue of these presents.” Petitioner attempted to take possession of the property which had been pointed out to him as 80 acres of lot 268, conveyed by said deed, when he was stopped by E. M. Busby, who claimed that a part of said property was embraced within the limits of lot No. 267, which immediately adjoined lot No. 268, and of which Busby was owner. Thereupon application was made by petitioner and others to the land processioners of the district to trace out and determine the lines around lot No. 268, and the line between the northeast and the southwest halves of said lot. The processioners proceeded in accordance with law, after notice to adjoining landowners, and traced out and surveyed said lands and established the lines between 267 and 268 and the line between the northeast and southwest half of said lot No. 268, and filed their return with a plat in the office of the ordinary of the count}' in accordance with law. The processioners established what is known as the Knight line to be the true dividing line between lots 267 and 268, thereby sustaining the contentions of E. M. Busby. Said line would leave only about 90 acres in said lot 268, and only about 45 acres in that portion of said lot “lying north and east of a straight line drawn diagonally from the southeast corner of said lot through the central point of said lot.to the northwest corner of the lot, instead of 80 acres, as conveyed by said deed.” Defendants and their agents informed petitioner that the true line between lots 267 and 268 lay about 16% chains west of said Knight line, and pointed out the same to him as such true line, and the first he knew of any dispute with reference to the line was when he was stopped from cutting the timber by E. M. Busby. The deficiency in said land is so great as to justifjr the suspicion of wilful deception, and certainly it is such a mistake; as to amount to fraud. Defendants had notice that the land would be processioned and they had opportunity to appear and defend petitioner’s interest in said proceeding; but they failed and refused so to appear. Petitioner paid the defendants for the land, and for some other land purchased at the same time, the sum of $2,875. A fair and reasonable price for the land above described, had there been eighty acres thereof, as conveyed, would have been $500, but the 45 acres in the said northeast half of said lot, as found by the processioners, is not worth exceeding $250. It was also alleged that petitioner had been put to an expense of $50, or more, by reason of the processioners’ proceeding, for which he should be reimbursed. The prayer was, for process, and for judgment against said defendants for $300. The defendants filed a demurrer, and afterwards, in order to meet some of the objections raised by the demurrer, the plaintiff amended by setting forth a description of other property described in the deed, so as to show all of the property for which the consideration of $2,875 was paid. The amendment also contained an allegation that by reason of the deficiency in the number of acres conveyed, as set out in the original petition, petitioner is entitled to an apportionment of the purchase-price of said lands to the extent and in the manner claimed in the petition, with interest thereon. The defendants again demurred to the petition as amended, and the plaintiff again amended by making reference to paragraph 7 of the original petition, which charged: “that defendants and their agents informed petitioner that the true line between lots 267 and 268 lay about 16% chains west of said Knight line, and pointed out the same to him as such true line, and the first he knew of any dispute with reference to the line was when he was stopped from cutting the timber by the said E. M. Busby, as aforesaid,” and by alleging further that “all of said conduct and representations misled your petitioner, and he was thus defrauded into believing and he did believe, on account of said representations, that the line was at the place so pointed out, and that he was getting the land described in the deed and so pointed out to him, and that the same contained eighty acres.” One of the grounds of the demurrer was, “because the petition, as amended, sets out no cause •of action against the said defendants or either of them, either in law or equity.” The demurrer was overruled, and the defendants excepted.</p>

<p>Alimony. Before Judge Wright. Haralson superior court.</p>

<p>Action for damages. Before Judge Reagan. Spalding superior court.</p>

<p>Action for damages. Before Judge Lewis. Morgan superior court.</p>

<p>Indictment for murder. Before Judge Mitchell. Thomas superior court.</p>

<p>Complaint for land. Before Judge Rawlings. Bulloch superior court.</p>

<p>Action for damages. Before Judge Fite. Bartow superior court.</p> <p>Action for personalty. Before Judge Wright. Floyd superior court.</p>

<p>Equitable petition. Before Judge Edwards. Polk superior court.</p>

<p>Complaint. Before Judge Boan. Boekdale superior court.</p>

<p>Writ of error from Bibb superior court.</p>

Equitable petition. Before Judge Gober. Fannin superior court. J. K. Thompson, by leave of the court, brought an action against Charles Tasker, as receiver of the Tasker Lumber Company, to recover a number of lots of land in the 27th district and 2d section of Fannin county, and for damages for timber cut therefrom. Among the lots were numbers 27, 28, 82 and 83.

<p>Exceptions to auditor’s report. Before Judge Gober. Gordon superior court.</p>

<p>1. It Was stated in the application for a charter for an insurance company that its principal office would he located in a named county of this State. It established an office in a municipal corporation of that county, where its president and secretary and treasurer had their offices, where the executive committee of the directors met, and where all the business of the company was transacted, except as stated below. In a by-law it was declared that an annual meeting of the stockholders should be held “at their home office in Bolk county, Georgia, at the home of W. S. Coleman, one and one quarter miles south of the courthouse, or with branch offices at Cedartown, or at other places in Georgia, as may be determined by the directors.” There was a similar rule as to the place of meetings of directors. Meetings of directors and stockholders were held at the residence of Coleman, who furnished a room for the purpose, free of rent. The minutes indicated that the director’s held one or more meetings at the Cedartown office. An iron safe was bought later and placed at Coleman’s house, when he was elected treasurer, and the company’s securities were kept in it, except when there was occasion to bring them to the city office for the purpose of transfer. The company returned for municipal taxation its furniture in the city offices, but declined to return or pay municipal tax on its other personal property. Meld, that the presiding judge did not err in denying an injunction to restrain the municipal authorities from collecting the tax on the personal property of the corporation, because it was claimed that its principal or home office was not within the limits of the city.</p> <p>2. Section six of the general tax act of August 22, 1907 (Acts 1907, p. 37), did not exempt the personal property of an insurance company incorporated in this State from taxation because of the payment of a business or occupation tax.</p> <p>(a) If the section referred to should be construed as seeking to exempt from taxation property because of the payment of an occupation or business tax by the owner, it would doubtless be unconstitutional; and if there may be two constructions of an act of the legislature, one constitutional, and the other unconstitutional, the former is to be preferred.</p>

Action for trespass. Before Judge Spence. Baker superior court. Mrs. AY. F. Slappey, Bobert Slappey, Butherford Slappey, and Mrs. Mary Muse Gillespie instituted suit against McConnell Brothers, a partnership composed of G. B. McConnell and AY. H. McConnell.

Action for damages. Before Judge Fite. Murray superior court. Earl Bamsay and others instituted suit against the Louisville and Nashville Bailroad Company. The defendant filed a demurrer, which was overruled. After the plaintiffs had submitted their evidence, the' defendant moved for a nonsuit, which was refused. After the case was submitted to the jury, a verdict was rendered in favor of the plaintiffs for $500. The defendant’s motion for a new trial was overruled.

<p>Equitable petition. Before Judge Gober. Cherokee superior court.</p>

<p>Petition for injunction. Before Judge Lewis. Greene superior court.</p>

<p>Action for breach of contract.' Before Judge Fite. Whitfield superior court.</p>

Action for damages. Before Judge Ellis. Fulton superior court. The plaintiff brought suit against the defendant, making substantially the following allegations: They are brothers, and were born and reared in the same county. The defendant is six years older than the plaintiff. The plaintiff came to Atlanta in 1892, and the defendant a number of years prior thereto, both for the purpose of engaging in the practice of medicine.

Probate of will. Before Judge Brand. Walton superior court. Mrs. Lula T. Lyon and Mrs. Mary M. Austin filed a petition to the court of ordinary of Walton county to probate in solemn form a paper alleged to be the last will and testament of Mary L. Spencer, deceased. M. L. Mobley, as administrator upon the estate of Ií. L. Spencer, deceased, appeared in response to the citation issued by the ordinary and filed a caveat, in which it was alleged. 1.

<p>Petition for direction. Before Judge Gober. Cobb superior court.</p>

<p>Action for money had and received. Before Judge Boan. DeKalb superior court.</p>

<p>Complaint.</p> <p>Colquitt superior court.</p>

<p>Action for damages. Before Judge Wright. Floyd superior court.</p>

<p>Equitable petition. Before Judge Edwards. Haralson superior court.</p>

<p>Habeas corpus,. Before Judge Wright. • Floyd superior court.</p>

<p>Equitable petition. Before Judge Beagan. Pike superior court.</p>

<p>Complaint. Before. Judge Worrill. Early superior court.</p>

Complaint for land. Before Judge Lewis. Morgan superior court. On June 6, 1855, shortly prior, to their marriage, John. W. Burney and Fannie. C. Walker, residents of Morgan Copnty, Ga., executed an agreement reciting as follows: fiWhereas marriage is contemplated shortly to be solemnized between said John. W. and Fannie 0., and whereas the said John.W. Burney is desirous of protecting .the said Fannie C. against, the, pecuniary, misfortunes of life.

<p>Action for damages. Before Judge Kimsey. Babun superior court.</p>

Equitable petition. Laurens superior court. The defendant in error, as landlord, sued out a dispossessory warrant to evict the plaintiff in error, as his tenant, because of failure to pay the rent provided for in the written contract between the parties, whereby the former rentéd to the latter for three years property in Dublin, Ga., to be used for hotel purposes, and known as the New Dublin Hotel.

<p>Equitable petition. Before Judge Eelton. Houston superior court.</p>

<p>Actions for damages. Before Judge Gober. Cobb superior court.</p>

<p>1. The bond, of a depository bank creates a lien on all the assets of the bank from the date of the bond. Where the depository bank becomes insolvent and a receiver is appointed to administer its affairs, and the receiver has in his hands sufficient funds to pay the preferred claims of the State, a depositor has not the right to require the State first to pursue its lien on property previously sold by the bank, before the fund in the hands of the receiver can be applied to the State’s preferred claim.</p> <p>2. When this case was before this court on a former occasion (131 Ga. 750), the judgment was reversed with direction that the same judgment be entered in term, if at the time of entering the same the case before the court should not be materially changed. The only material change is the assertion by the State of two additional items, to wit: the. alleged deposits standing in the name of the State geologist and the State librarian; and the exception being that the judgment was rendered without evidence, the judgment of the court below is reversed to the extent of these items, with the direction that the State be required to prove such items.</p> <p>Lumpkin, J., being disqualified, Judge. Meadow, of the Northern Circuit, was designated to. sit in his stead.</p>

Action upon insurance policy. Before Judge Fite. Whitfield superior court. Mrs. Belle E. McAuley brought suit against the Metropolitan Casualty Insurance Company to recover the sum of $5,500, alleged to be due petitioner by reason of the following facts: The plaintiff was the beneficiary named in a policy of accident insurance issued by the defendant company on the - life of her husband, Sheridan McAuley. The insured died on January 28,1907 from the discharge of a pistol.

<p>Wliile the act of- Congress of June 30, 1906- (34 Statutes at Large, GG9, 672), .in .so far as it relates to inspection of animals .slaughtered and meats prepared by packing-houses for interstate or foreign commerce, does not entirely exclude the States, or municipalities under their authority, . from enacting proper inspection laws to- prevent meat which has become unfit for food by reason of decay or similar, causes from being, distributed or sold, to the injury of the health of its citizens, yet a section of a municipal ordinance which creates a “packing-house inspector,” whose duty it is to inspect all meats shipped into the city, or brought from outside the county, and which, among other things, requires him to visit all packing-houses daily-and all other places of “importers of meat-stuff, not otherwise provided for, and secure from them their bills of lading- for tlie purpose of determining whether or not the said shipments have made proper time, and whether cars -containing such mqatstuff have been properly iced during transit,” and which impos.es upon such importers an inspection charge of twenty cents for each beef carcass, and ten cents for each carcass of a calf, sheep, or hog, and ten cents per hundredweight for all cuts of fresh meat, -sausage, poultry, game, and fish, while the ordinance imposes nq such charge on others engaged in like business, is an unlawful interference with interstate commerce, discriminatory in character, and invalid.</p>

<p>Action upon insurance policy. Before Judge Brand. Franklin superior court.</p>

<p>Injunction. Before Judge Ellis. Clayton superior court.</p>

Complaint for land. Before Judge Spence. Calhoun superior court. John L. Griffin brought complaint for land* against Becton Isler. Attached to the declaration was the following abstract of title: “Deed from John Colley to J esse II. Griffin, trustee, of October 18, 1869, recorded Nov. 6, 1875 in Book F-6) pages 91-92-93, in the office of the clerk of the superior court of Calhoun county; deed from H. C. Fentriss to Jesse II.

<p>Injunction. Before Judge Charlton. Chatham superior court.</p>

<p>1. The net of December 7, 1897 (Acts 1897, p. 68), authorizing corporations or individuals- owning any water-power to condemn rights of way and other easements, etc., is not unconstitutional for the reason that the act contains two subject-matters, or matter in the body of the.act different from what is expressed in the title.</p> <p>2. In view of the provisions of the third section of the act of December 7, 189.7, that the power given under this act shall not be used to interfere with any mill or factory actually in operation, the legislative purpose is indicated that the power to condemn land to flow-back .water, given in section 1 of'the act, includes lands which may contain a waterpower not in actual use.</p> <p>3. The provision of the constitution (art. 3, see. 7, par. 17), that no law or section of the code shall be amended or repealed by mere reference to its title or to the number of the code section, etc., is confined to repeals and amendments expressly made, and has no application to repeals by implication.</p> <p>(a) The act of December 7, 1897, is not in conflict with Civil Code, § 3061, defining the rights of a riparian owner of a non-navigable stream.</p> <p>4. The generation of electricity by water-power, to be used for. the purpose of lighting towns and cities, or supplying motive power to railroads or street-car lines, or supplying light, heat, and power to the public, subject to governmental control, is a public use, for the proper exercise of which the General Assembly may grant the right of eminent domain.</p> <p>Ó. When a corporation desires to condemn property for a public use in the notice of condemnation to the landowner it must appear that the property sought to be condemned is intended.to be devoted to a strictly public use.</p> <p>6. The superior court can not confer upon a corporation chartered by it the power of eminent domain, but may incorporate a private corporation with such powers as will enable the corporation, by compliance with a legislative grant of eminent domain, to exercise the power conferred in the legislative grant.</p> <p>7. There was no abuse of discretion in denying an injunction.</p>

<p>Petition for injunction. Before Judge Pelton. Bibb superior court.</p>

<p>Action for damages. Before Judge Fite. Catoosa superior court.</p>

<p>Action for damages. Before Judge Fite. Catoosa superior court.</p>

<p>Action for damages. Before Judge Wright. Walker superior court.</p>

<p>Motion to set aside judgment. Before Judge Edwards. Walker - superior court.</p>

<p>Foreclosure of lien. Before Judge Worrill. Terrell superior court.</p>

<p>The writ of prohibition is never granted whore there is any other legal remedy; and here the applicant for the writ had a complete remedy by making defense before the recorder of the City of Atlanta, against whom the writ was sought, and by way of certiorari in ease of an erroneous adverse decision.</p>

<p>1. The act of the General Assembly approved October 14, 1879 (Acts 1878-9, p. 125), providing for the appointment of railroad commissioners; prescribing their duties, etc., had in it the following provisions: “Any commissioner may be suspended from office by order of the Governor, who shall report the fact of such suspension, and the reason therefor, to the next General Assembly; and if a majority of each branch of the General Assembly declare that said commissioner shall be removed from office, his term of office. shall expire. . . In case any commissioner becomes disqualified in any way, he shall at once remove the disqualification or resign, and on failure so to do, he must be suspended from office by the Governor, and dealt with as hereinafter provided. In any case of suspension the Governor may fill the vacancy until the suspended commissioner is restored or removed.” Held:</p> <p>(а) The provisions above quoted were not repealed by the act approved August 21, 1906 (Acts 1906, p. 100), providing for the election of commissioners by the people instead of being appointed by the Governor.</p> <p>(б) Nor were these provisions in the act of 1879 repealed by the act approved August 6, 1907 (Acts 1907, p. 72). It was not the intention of the legislature, in passing the last-named act, to revise all the laws relating to tlie railroad commission and thereby repeal existing laws in relation thereto.</p> <p>2. Under the provisions above-quoted of the act of 1879, the Governor, for any reason satisfactory to himself, had the. power to suspend from office any railroad commissioner, and a majority of the House and Senate, for any reasons satisfactory to themselves, had the power to remove from office a commissioner previously suspended by the Governor.</p> <p>(a) The General Assembly had the right to create the office of railroad commissioner, with such right of suspension in the Governor, and right of removal in a majority of the members bf the House and Senate, and the provision in the act giving such right of suspension and removal is valid whether the commissioner be elected by the people or appointed by the Governor.</p> <p>(b) The action ,of the Governor in suspending, and of the majority of the members of the House and Senate in removing a suspended commissioner, is not subject to review by the courts.</p> <p>3. The provisions above quoted, relating to the suspension and removal of railroad commissioners, did not constitute a special law. An act relating to persons or things as a class is a general and not a special law.</p> <p>4. The provisions of the act of 1879 referred to in the preceding- headnote do not violate the clause of the constitution of this State providing that “Protection to person and property is the paramount duty of government, and shall be impartial and complete,” nor that clause of the constitution of the United States providing that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”</p> <p>5. The provision of the act of 1879, giving thjj. General Assembly the power of removal of a railroad commissioner upon a majority of the House and Senate declaring that he shall be removed, is not void because contrary to that clause of the constitution of this State providing that “Every vote, resolution, or order, to which the concurrence of both houses may be necessary, except on a question of election or adjournment, shall be presented to the Governor, and, before it shall take effect, be approved by him, or, being disapproved, shall be repassed by two thirds of each house.”</p> <p>(a) Where a resolution is passed by a majority of the members of the House of Representatives, and a resolution is passed by a majority of the members of the Senate, both of which resolutions declare that a railroad commissioner is removed from office, the removal is .not rendered inoperative because the resolutions were not approved by the Governor.</p> <p>6. Nor are the provisions of the act of 1879 referred to in the preceding headnote void because contrary to that clause of the constitution of this State providing that “The Senate shall have the sole power to try impeachments,” or that clause providing that “The House of Representatives shall have the sole power to impeach all persons who shall have been, or may be, in office.”</p> <p>7. The provisions of the act of 1879 quoted in the first headnote are not, violative of art. 14, sec. 1, of the amendments to the constitution of the United States, providing that no State “shall deprive any person of property without due process of law,” nor of art. 1, sec. 1, par. 3, of the constitution of this State (Civil Code, § 5700), declaring that “no person shall be deprived of . . property, except by due process of law.”</p> <p>(a) A public’office is a public trust or agency, and is not the property of the incumbent thereof; and when he is removed therefrom, he is not deprived of any property.</p> <p>8. Nor are the provisions of the act of 1879 quoted in the first headnote violative of art. 1, sec. 3, par. 2, of the constitution of this State (Civil Code, § 5730), providing that “No bill of attainder . . shall be passed.”</p> <p>9. The word “next” in the above-quoted portions of the act of 1879, providing that the Governor shall report the fact of such suspension and the reason therefor to the next General Assembly, is to be construed in connection with its context, and means nearest in point of time; and if a General Assembly is in session when the suspension is made by the Governor, it is his duty to make his report to that General Assembly.</p> <p>10. The provision in the act of 1879 of the General Assembly, creating the office of railroad commissioner, in which that body reserved to itself unlimited discretion to remove any one holding such office, does not confer on the General Assembly judicial power; and such provision is not void because contrary to that provision of the constitution of this State contained in the Civil Code, § 5720, declaring: “The legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided.”</p> <p>11. An act of the General Assembly can not be by the courts declared void on the ground that it is contrary to the principles of justice and equity upon which the government of the United States and of this State are founded, or to the spirit of our institutions and that of the constitution; but can only be declared invalid when it is inconsistent with some provision of the constitution of this State or repugnant to some provision of the constitution of the United States.</p>

<p>Where the regular term of the superior court of a certain county, which convened on the 12th day of July, was, by an order duly passed on the 14th of July, adjourned until the 1st day of November, and subsequently, during the recess intervening between the regular and the adjourned term, a special term of the court was called by order duly passed by the judge, a motion for a new trial made in a case tried at such special term should have been made before the adjournment thereof; and where it was not made until after the adjournment of the special term, the court did not err in refusing to certify and sign the same.</p>

<p>Indictment for rape. Before Judge Toan. Fulton superior court.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court.</p>

<p>Foreclosure of mortgage. Before Judge Worrill. Miller superior court.</p>

<p>Indictment for rape. Before Judge Edwards. Douglas superior court.</p>

Motion to reinstate. Before Judge Littlejohn. Sumter superior court, On the trial of a claim case the plaintiff tendered in evidence the execution with certain entries thereon. Objection was interposed on the ground that the judgment on which the execution was based was dormant. The objection was sustained, and the judge, on motion of counsel for the plaintiff, dismissed the levy.

<p>1. A timber lease of “all and singular the timber suitable for sawmill purposes, growing on” described lots of land, containing a covenant that the vendee “is to have the free use and enjoyment of the timber, for the purposes aforesaid, growing on the said lots of land, for and during the term of ten years” from the date of the lease, conveys to the vendee only the green timber which at the date of the lease is suitable for sawmill purposes.</p> <p>2. It was error to enjoin the vendor, at the instance of the vendee, from using timber-wliieh was dead at the time of the lease, and which did not pass thereunder.</p>

<p>Injunction. Before Judge Párker. Coffee superior court.</p>

<p>Habeas corpus. Before Judge Bell. Fulcon superior court.</p>

Application of receiver in bankruptcy. Before Judge Charlton. Chatham superior court.

<p>Petition for injunction. Before Judge Bell. Fulton superior court.</p>

<p>Action for damages. Before Judge Meadow. Gwinnett superior court.</p>

<p>Rule for contempt. Before Judge Wright. Floyd superior court.</p>

<p>Question of law; from Court of Appeals.</p>

<p>Petitions for injunction. Before Judge Meadow. Madison su•perior court.</p>

<p>Petitions for injunction. Before Judge Meadow. Madison superior court.</p>

<p>Indictment for murder. Before Judge Reagan. Pike superior court.</p>

<p>Indictment for murder. Before Judge Park. Ware superior court.</p>

<p>Habeas corpus. Before Judge Ellis. Fulton superior court.</p>

<p>Indictment for murder. Before Judge Whipple. Dooly superior court.</p>

<p>Petition for mandamus. Before Judge Littlejohn. Sumter superior court.</p>

<p>1. Where one employs a flat-boat or other means of transporting his employees and his wagons and teams across a stream to and from his sawmill, and does not transport any part of the public for hire or compensation, he is not engaged in operating a ferry.</p> <p>2. Where one employs a flat-boat or other vessel, not for the purpose of conveying any part of the public or freight for hire, but for the purpose indicated in the preceding headnote, he does not infringe upon or violate the rights of the owner of a public ferry, though the right of the latter to maintain and operate a ferry is exclusive, and territorially extends beyond the point at which the former keeps and maintain# a flat-boat or other means for the purpose of conveying his employees and teams across the stream.</p>

<p>Petition for injunction. Before Judge Fite. Cobb superior court.</p>

<p>Alimony. Before Judge Bawlings. Jefferson superior court.</p>

<p>Indictment for murder. Before Judge Koan. Fulton superior court.</p>

<p>Equitable petition. Before Judge Worrill. Early superior court.</p>

<p>Action for damages. Before Judge Worrill. Miller superior court.</p>

<p>Where a prisoner was released from custody on a bond signed by two sureties, and on the same day was delivered up by them to the sheriff, and still later on that day one of the sureties went to a deputy sheriff wlio had no knowledge of the previous occurrences, represented that a bond had already been given and was all right, caused the deputy to examine the bond, which was in the sheriff’s office, and on that basis obtained the release of the prisoner from custody, on failure of the latter to appear, and in response to a proceeding to forfeit. the bond, such surety was estopped from asserting that it was of no force by reason of the delivery of the accused to the sheriff.</p>

<p>Where, on June 3, 1908, one was induced, to enter into a contract for the purchase of personalty by reason of the fraud of the owner, paying the latter $700 cash and giving notes for the balance of the purchase-money, and, on September 5, 1908, paid one of such notes for $500 then due, and, on January 8, 1909, paid $200 on another of the notes for $500 due on January 5, 1909, and at the time took from such owner a writing signed by the latter, wherein he agreed to indulge the buyer for 30 days within which to pay the balance of $300 due on such note: Held, that the conduct of the buyer in making the payments and taking from the seller the writing dated January 8, 1909, with full knowledge at the time of the fraud of the seller in the procurement of the notes, amounted to a waiver of such fraud, and the buyer could not prevent a collection of the balance due on the note due January 5, 1909, and of the amounts due on the other notes, because of any damages sustained by the buyer on account of such fraud.</p>

Injunction. Before Judge Bell. Pulton superior court. J. S. Jackson sued the Rudolph Wurlitzer Co., alleging, that the defendant company was a corporation of the State of New York, having an office and agent in Atlanta, Georgia; that he purchased from the defendant a certain cylinder organ to be used in connection with a “merry-go-round” for the sum of $600, on the following terms: cash $100, an. old organ valued at $100, and the balance in eight monthly instalments of $50…

<p>The grant of the writ of certiorari operates as a supersedeas until the final hearing in the superior court. If on the final hearing the certiorari be dismissed or overruled, no order or mandate from the superior court is necessary to be filed with the inferior tribunal before the proper officers of the latter court may proceed to execute its judgment.</p>

<p>Habeas corpus. Before Judge Pendleton. Fulton superior court.</p>

<p>Petition for injunction. Before Judge Rawlings. Tattnall superior court.</p>

<p>Motion for new trial. Before Judge Edwards. Polk superior court.</p>

<p>Indictment for murder. Before Judge Fite. Bartow superior court.</p>

<p>Assuming a judgment against. a county to be valid and not open to attack as such, yet, where the record of the suit does not show upon its face that the judgment rests upon a claim referable to any one of, the purposes enumerated in the constitutional provision for which taxes may -be levied by the county, and this does not otherwise appear, the writ of mandamus should not issue to compel the county commissioners to issue a warrant upon .the county treasurer for its payment from funds ai'ising from taxation, or to levy a tax in order to provide for such payment.</p>

<p>Mandamus. Before Judge Parle. Mitchell superior court.</p>

<p>Action for breach of warranty. Before Judge Littlejohn. Schley superior court.</p>

<p>Action for damages. Before Judge Parker. Glynn superior court.</p>

<p>Appeal. Before Judge Pendleton. Fulton superior court.</p>

<p>Petition for injunction. Before Judge Meadow. Walton superior court.</p>

<p>Petition for injunction. Before Judge Fite. Gordon superior court.</p>

<p>Mortgage foreclosure. Before Judge Whipple. W-ilcox superior court.</p> <p>The Neal Bank filed a petition against J. L. Bruce to foreclose a mortgage on land. The debt secured was $1500, evidenced by a promissory note dated August 26, 1904-, payable January 21, 1905. The mortgage bore the same date, and created a lien on certain land for the purpose of securing the payment of the debt, and was duly recorded on the 19th day of November, 1904. The mortgage and note were attached together. The note was executed by J. L. Bruce, payable to L. M. Bruce, and the mortgage was between the same parties. Entered on the back of the mortgage were the following indorsements: “Pay to the order of Dreger & Doughty, Mgrs. September 3rd, 1904. L. M. Bruce. Dreger & Doughty, Mgrs.” In paragraph three of the petition it was alleged: “Said note and mortgage were duty transferred by L. M. Bruce to Dreger & Doughty, and by them transferred to the Neal Bank.” Among other things the defendant’s answer contained the statement that “Defendant denies both the genuineness and the legality of the indorsements and transfers set forth in the third paragraph of said petition.” The plea was filed under oath and positively sworn to. A demurrer was filed to the answer, and was overruled; and exceptions pendente lite were approved and filed, complaining of this judgment; but the decision of the main case having been favorable to the plaintiff, there was no assignment of error by cross-bill of exceptions upon the judgment refusing to sustain the demurrer to the plea. When the case was on trial the plaintiff offered in evidence tbe note and mortgage and indorsements thereon, without proving or offering to prove the execution of the indorsements. The documents so offered were admitted in evidence over objection as follows “(1) Because there is no transfer or assignment of the mortgage from L. M. Bruce, the payee, to. Dreger & Doughty, Mgrs., to the Neal Bank, plaintiff. (2) Because, the defendant having specifically denied on oath the indorsements on said instrument, that is to say, the indorsements of L. M. Bruce to Dreger & Doughty, Mgrs., and Dreger & Doughty, Mgrs., said indorsements could not be admitted in evidence without proof thereof as required by section 3705 of the Civil Code of Georgia, both the genuineness and legality of said indorsements having been denied under oath by the defendant as aforesaid.” The presiding judge directed a verdict in favor of the plaintiff for the amount of principal, interest, and attorney’s fees provided for in the note. No motion for a new trial was made, but the defendant came by direct bill of exceptions. In a marginal note on the bill of exceptions the judge Tecited: “It was agreed by defendant’s attorney that if the note and mortgage were admitted in evidence, it would be proper to direct a verdict for the plaintiff.” Error was assigned upon the admission of the note and mortgage in evidence without evidence tending to prove the indorsements; also to the direction of a verdict for the plaintiff, it being contended that the verdict was without evidence to support it.</p>

Divorce, etc. Before Judge Whipple. Ben Hill superior court. Mrs. Florence P. Stoner filed her petition for divorce and for temporary and permanent alimony against Ezra Stoner. The ground on which the divorce was sought was cruel treatment. On the trial the plaintiff testified: Stoner and the plaintiff moved to Fitzgerald about 1902, and lived together as husband and wife until the ninth day of May, 1907.

<p>Ejectment. Before Judge Whipple. Irwin superior court.</p>

<p>Where a watchman is employed by one railroad company to watch all trains passing over a public crossing and to give warning of their approach, and he temporarily engages in an act not shown to be essential to the discharge of his duty, and fails to watch for trains, and by reason thereof he is struck and injured by an engine of another railroad company lawfully using the track of his employer, the other company is not liable in damages for the injury, though its servants in charge of the engine may have been running- the same at a-greater speed than that allowed by a municipal ordinance.</p>

<p>Habeas corpus. Before Judge Bell. Fulton superior court.</p>

<p>Petition for, injunction. Before Judge Bell. Fulton superior court.</p>

<p>Injunction. Before Judge Meadow. Glascock superior court.</p>

<p>Action for damages. Before Judge ICimsey. Stephens superior court.</p>

<p>1. The property protected against the waiver of exemption, and as to which no waiver can be effectual, is wearing apparel, household and kitchen furniture, and provisions; consequently money, though less in amount than $300, and though it might readily he converted into any one of the classes of property mentioned, as it does not belong to either of them, is not protected against the waiver.</p> <p>2. The question of the right of the plaintiff to the appointment of a receiver and an injunction as against the defendant is controlled by the decision in the case of Bell v. Dawson Grocery Co., 120 Ga. 628.</p>

<p>1. In a case of one on trial for murder, where the evidence presented only two phases of homicide, viz., that of murder or accidental homicide, it was not error to charge: “A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect.”</p> <p>2. It is the duty of the judge to construct his charge according to the case as made by the evidence; and if a theory is presented only by the statement of the defendant, the court is not required to present that theory except when requested in writing.</p>

<p>Trover. Before Judge Whipple. Ben Iiill superior court.</p>

<p>1. In an action of ejectment, where the defendant relied on a prescriptive title acquired by seven years’ adverse possession under color of title, it was competent, on the question of good faith, to admit in evidence fragments of wax and paper, in connection with the testimony of the prescribor that they came from the possession of his grantor, and that he believed them to be the original grant from the State, although they were so mutilated that their contents could not be ascertained or determined by the court.</p> <p>2. It was not error to refuse a request to charge which contained an expression of an opinion on facts for consideration, by the jury.</p> <p>3. The other requests to charge, even if otherwise unobjectionable, were not applicable to the evidence.</p> <p>4. Where title to land has been acquired by seven years’ adverse possession under color of title, such title will not be lost by the holder thereof by abandonment of possession. If the judge erred in his charge on the subject of abandonment of title after a prescriptive title had' matured, the error was not harmful to the plaintiff.</p> <p>5. In connection with the testimony of the defendant on the question of good faith and possession, it was competent for him to testify that during his possession he had paid taxes on the property.</p> <p>6. The evidence of the use of the land by “back boxing” for turpentine purposes, as more specifically set forth in the record, was .sufficient to authorize the jury to find that such use amounted to adverse possession upon which prescription might be founded.</p> <p>7. Assignments of error which are not referred to in the brief of counsel for plaintiff in error will be regarded as abandoned.</p> <p>8. The evidence supported the verdict, and there was no error in overruling the motion for new trial.</p>

<p>Partition. Before Judge Park. Turner superior court.</p>

Equitable petition. Before Judge Pendleton. . Fulton superior court. Held: at which it was decided by resolution, passed unanimously, to issue to each of the ten members of the corporation eight hundred shares of the stock of the corporation; and thar other shares of the stock of the company to the extent of $50,000 par value, should be issued and sold to ten other persons, who were to be induced to…

Mandamus. - Before Judge Pendleton. Fulton superior court. W. A. Cochran filed a petition against E. E. Jackson, alleging, that petitioner and one Maulding were duly elected constables and defendant Jackson justice of the peace for the 1422d district G.M., Fulton county; that petitioner and Maulding and defendant Jackson each duly qualified, received- their commissions, and together entered upon the duties of their respective offices.

<p>Attachment. Before Judge Beagan. Butts superior court.</p>

<p>1. The purchaser of a steam, engine accepted a limited warranty, to the effect that if any part was found defective the seller agreed to supply such part as was found defective within one month after the engine was put in operation; and also, if the engine did not perform well because of general structural condition, the seller agreed to accept a return of the engine; and the buyer covenanted that the seller should not he liable to claims for damages or failure of consideration, unless such claims were made by registered letter to the seller within ten days after starting the engine. The eccentric rod broke in the operation of the engine, and on verbal notice the seller authorized its repair at his expense; the rod again broke, and the . seller, upon verbal notice, again authorized its repair at his expense. Afterwards the eccentric rod repeatedly broke, and the purchaser then discovered that this frequent breaking was due to defective construction in the engine, but never notified the seller, according to the terms of the limited warranty, that such was the case, or that he would claim damages or failure of consideration. Held, that as by the terms of the warranty in the contract of sale a failure to give ten days written notice, by registered letter, of the general defective condition of the engine, was made a condition precedent to the buyer’s claiming damages for a breach thereof, the purchaser was precluded by his contract from pleading such damages.</p> <p>(a) Though the seller acted on a parol notice as to the defective eccentric rod, and authorized a duplicate thereof to be purchased at his expense, yet such conduct would not estop the seller from setting up the buyer’s waiver of liability for damages resulting from a breach of the warranty as to the general defective condition of the engine upon failure to give the contractual notice.</p> <p>2. A parol agreement between the parties to an executed contract of sale covering several articles, that the seller would' accept a return of one of the articles of a greater value than $50, which was stored nnder a shed on the .buyer’s premises, at a stated credit on the notes given for the whole, is a contract of resale by the vendee to the vendor. Such parol contract of resale is invalid under the statute of frauds.</p> <p>(a) The mere stipulation in the contract of resale that the article should remain on the premises of the vendor at the place where it was stored, until sold by the vendee, did not amount to an act of delivery and acceptance which would bring the transaction within the exception of the statute.</p>

Injunction. Before Judge Pendleton. Fulton superior couri. Held: but on the 2d day of August, 1909, the Eminent Council passed a resolution calling for an election of delegates and a meeting of the Eminent Household. After that there were indications of discord among the officers.

<p>Habeas corpus. Before Judge Pendleton. Fulton superior court.</p>

Indictment for murder. Before Judge Seabrook. Bryan superior court. Brunswick McCray was tried under an indictment charging him with the offense of murder, the person alleged to have been killed by him being Zenas S. Warnell. The jury found him guilty of the offense charged in the indictment; whereupon he made a motion for a new trial, which was overruled, and he excepted.

Appeal. Before Judge Park. Decatur superior court. B. T. Maloy filed in the court of ordinary a petition for letters of dismission from the guardianship of S. E. Maloy, alleging that ho had fully executed his trust. Citation issued. Thereupon certain persons, who alleged that they were the heirs of S. E. Maloy and that he died intestate, filed, apparently in the nature of a caveat 05 objection to the discharge of the guardian, a paper in the form of a petition.

<p>Injunction. Before Judge Littlejohn. Lee superior court.</p>

<p>Processioning. Before Judge Mitchell. Berrien superior-court.</p>

Action for damages. Before Judge Mitchell. Thomas superior court. L. B. Iianaw brought suit against the Southern Express Company for a delay in delivering certain goods which were sent by express from New York to Thomasville. The initial carrier was the Adams Express Company. The plaintiff bought the goods and had them shipped to him.

<p>Claim. Before Judge Ellis. Fulton superior court.</p>

<p>Under the pleadings and evidence in this case it was erroneous to grant an interlocutory injunction.</p>

Petition for mandamus. Before Judge Fite. Whitfield superior court. Malcolm Tarver, as a citizen and taxpayer of the city of Dalton, sought by mandamus proceedings in the superior court of Whitfield county to force a collection from the Crown Cotton Mills (hereinafter called the mills) of certain taxes alleged to be due the city.

<p>Injunction. Before Judge Reagan. Henry superior court.</p>

<p>Indictment for rape. Before Judge Rawlings. Emanuel superior court.</p>

<p>Motion. Before Judge Worrill. Early superior court.</p>

<p>Injunction. Before Judge Worrill. Terrell superior court.</p>

<p>Petition. Before Judge Littlejohn. Sumter superior court.</p>

Claim. Before Judge Whipple. Ben Hill-superior court. An execution against Martin was levied on a city lot of realty. He interposed a claim as head of a family, alleging that the property was not his, but belonged to four named minors, “the same being homesteaded and exempted property and the aforesaid children the beneficiaries of said homestead.” On the date of trial the levying officer amended his entry of levy, as shown in the second headnote.

Claim. -Before Judge Park. Mitchell superior court. An execution issued in December, 1896, against W. W. Taylor, was levied upon 125 acres of land, the south half of lot 55 in the 10th district of Mitchell county, the entry of levy reciting that he was in possession of it. A claim was interposed by his wife. At the trial the levying officer testified: “The recital on that entry is correct. That levy was made on March 7, 1902. I testify from that entry.

<p>Ejectment. Before Judge Whipple. Ben Hill superior court,</p>

Appeal. Before Judge Park. Mitchell superior court. Eugenia Scurry filed a petition to the court of ordinary, alleging that James Scurry departed this life on December 21, 1906, leaving petitioner (his widow) and two minor children surviving him; and she prayed that a year’s support as allowed under the provisions of the Civil Code, § 3465, be set aside for them out of the estate of -the deceased.

<p>Attachment. Before Judge Mitchell. Berrien superior court..</p>

<p>Complaint for land. Before Judge Mitchell. Berrien superior court.</p>

<p>1. Where a check was drawn on a bank located in another town than that, in which the drawer resided, and immediately following the direction to the drawee bank, which was in the lower left-hand corner of the: check, there were stamped, at the time when the cheek was drawn, the: words, “payable through [a named bank in another city of the same State] at current rate,” this was a material part of the direction; and the drawee hank was not required to pay the cheek when not presented through the bank thus named, but directly by a third bank.</p> <p>2. Under sueli circumstances, if the third bank, which held the cheek, presented it to the drawee bank, and the latter indorsed on it the statement that it would be paid when presented through the named hank, this did not authorize the bank holding the cheek to have it protested.</p> <p>3. For the holder of a check to unlawfully cause a protest of it to be made, and notice to be given to the drawer and indorsers, without proper presentation for payment, according to its terms, furnishes a cause of action to the drawer.</p>

<p>Trover. Before Judge Mitchell. Berrien superior court.</p>

<p>Complaint, Before Judge Parker. Clinch superior court.</p>

Trespass. Before Judge Parker. Charlton superior court. King & Clark, copartners, brought suit against the Moniac Turpentine Company and Henry Williams, to enjoin them from trespassing upon a certain tract of land, and to recover damages for the trespass already committed.

<p>Divorce. Before Judge Parker. Glynn superior court.</p>

Action upon insurance policy. Before Judge Ellis. Fulton superior court. R. H. Ledford So Son brought suit against the plaintiff: in error upon a policy of fire insurance, attaching a copy of the policy to their petition.

<p>Action upon insurance policy. "Before Judge Pendleton. Fulton superior court.</p> <p>The policy sued on was written to cover a stock of merchandise consisting of dry goods, clothing, shoes, etc., for one year from April 28, 1906. It contained the usual iron-safe clause (see 98 Ga. 760). The only inventory was one made in February, 1906, by a. receiver in bankruptcy, from whom the stock of goods was bought by the plaintiff’s vendor, Stovall, who made purchases and sales for about three weeks and then sold the stock to the plaintiff, about the middle of April, for $6,352.80. For two months or more the only book kept by the plaintiff, showing purchases or sales, was a small memorandum book containing brief entries of total cash sales per week, there being no credit sales. In July he opened a cash book and ledger, but the entries in the cash book were made in manner similar to those in the small book first mentioned, showing only the totals per week, the clerk’s sales tickets having been destroyed upon making the entries in the cash book. The entries, were in such form as “April 25, J. B. 172.57,” “April 28, J. Buchman $116.4-5,” and “May 4, St. 13.50,” requiring explanation of their meaning. The evidence does not show what entries the ledger contained. The fire occurred on December 12, 1906, the salvage amounted to $325, and, according to the plaintiff’s testimony, the value of the goods destroyed was over $6,000. He carried three policies of insurance, the one sued on" being for $2,000, and the other two being for $1,500 each. He testified that he delivered to the adjusters his books and invoices; and that they checked up the same and found everything correct, and so stated.</p>

Action for breach of contract. Before Judge Pendleton. Eulton superior court. The action was by Mercer Fain, as assignee of the landlord, W. Jones, against M. W. Reid, tenant, to recover damages on account of breach of contract and abandonment of the premises by the tenant.

<p>Trover. Before Judge Ellis.' Fulton superior court.</p>

<p>1. Where two fruit dealers jointly contract with the owner of a cold-storage plant for the storage of apples, in a suit by the former against the latter, to recover damages occasioned to the apples by causing a lower temperature than that provided in the contract, the testimony of an employee of the defendant that the defendant, in the presence of one of the plaintiffs, instructed him to obey and carry out the orders of this particular plaintiff as to the regulation of the temperature, is not open to objection that this amounted to a self-serving declaration.</p> <p>2. Where two persons jointly sue to recover damages for an alleged breach of a contract between them and the defendant, the admissions of one of the plaintiffs affecting- the terms of the contract are admissible against all.</p> <p>- 3. Where a witness is sought to be impeached by proof of contradictory statements alleged to have been previously made by the witness, which are relevant to his testimony and the case, it is not error to charge, in’ connection with the law relating to the impeachment of witnesses, the following: “If a witness swears wilfully and knowingly falsely, his testimony ought to be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence. It is for the jury to determine the credit to be given his testimony when impeached by contradictory statements out of court.”</p> <p>4. An irrelevant instruction will not vitiate a verdict where it is reasonably clear that such instruction was not harmful to the losing party.</p>

<p>Year’s support. Before Judge Ellis. Fulton superior court.</p>

<p>Specific performance. Before Judge Ellis. Fulton superior court.</p>

<p>Quo warranto; from Johnson superior court. Before Judge Rawlings.</p>

<p>The court committed no error in sustaining the demurrer and dismissing the equitable petition, on the ground that it undertook to set up a stale demand.</p>

<p>Libel for divorce. Before Judge Charlton. Chatham superior court.</p>

<p>Trespass. Before Judge Felton. Houston superior court.</p>

Complaint. Before Judge Felton. Bibb superior court. Mrs. Mary J. Eead brought suit against E. W. Gould, and alleged that he was indebted to her in the sum of $400. She averred that on or about June 6, 1904, she sold to him certain lands, and that as a part of the consideration for the sale he agreed to allow her hunting, fishing, and pasturage privileges on the lands, or, in default thereof, to pay her $400 in addition to the price already paid for the land.

<p>Petition for injunction. Before Jttclge Kimsey. Hall superior court.</p>

<p>Injunction, etc. Before Judge Lewis. Morgan superior court.</p>

Indictment for rape. Before Judge Worrill. Early superior court. The commission of the offense was shown by the testimony of the prosecutrix, twelve years of age, corroborated in material particulars by evidence of the circumstances.

<p>Indictment for murder. Before Judge Whipple. Crisp superior court.</p>

<p>1. The question of preliminary advertisement of a local bill is for determination by the General Assembly before its passage. Burge v. Mangum, 134 Ga. 307 (67 S. E. 857).</p> <p>2. The law embodied in the Political Code, § 683 et seq., is not such a general law in regard to the incorporation of cities as to render it unconstitutional for the legislature, which had previously chartered a city, to amend such charter so as to extend the corporate limits. Benning v. Smith, 108 Ga. 259 (33 S. E. 823).</p> <p>3. The act of August 14, 1909 (Acts 1909, p. 534), providing for the extension of the municipal limits of Atlanta, is not unconstitutional on the ground that it contains matter not covered by the caption, or because it does not set out or describe the act to be amended. Town of Poulan v. Atlantic Coast Line R. Co., 123 Ga. 605 (51 S. E. 657) ; Mayor etc. of Macon v. Hughes, 110 Ga. 795 (36 S. E. 247).</p> <p>4. Such act is not unconstitutional as a whole, or as to the extension of the municipal limits, on the ground that it contains more than one subject-matter. Smith v. Mayor and Council of Macon, 129 Ga. 227 (58 S. E. 713); Mayor and Council of Americus v. Perry, 114 Ga. 871 (40 S. E. 1004, 57 S. E. 230); Stapleton v. Perry, 117 Ga. 561 (43 S. E. 996).</p> <p>5. While the legislature may provide for an election to determine whether unincorporated territory contiguous to a municipal corporation shall be annexed thereto and the corporate limits extended so as to include such territory, they are not obliged to do so, but may extend the limits without the consent of those residing or owning property in the added territory. Toney v. Macon, 119 Ga. 83 (46 S. E. 80).</p> <p>6. Where the legislature amends the charter of a municipality so as to extend its corporate limits and include therein contiguous territory previottsly unincorporated, all the inhabitants and their property within the limits so fixed are subject to taxation to raise municipal revenue for all legitimate purposes, without respect to the time when some of the liabilities arose.</p> <p>7. Under such circumstances, unless otherwise provided by law, debts of the corporation contracted before the limits were extended are chargeable upon the city as enlarged by the territory added, as well as upon that included in the boundaries before they were extended.</p> <p>8. Such a provision in the act extending the limits is not unconstitutional on the ground that it is retroactive or retrospective as to the municipal indebtedness already incurred (Civil Code, § 5730) ; nor on the ground that this would amount to binding the new inhabitants by a previously incurred debt without their having voted to incur it (Civil Code, § 5893).</p> <p>9. The charters of Oakland City and Battle Hill were repealed by separate acts (Acts 1909, p. 1201; Acts 1908, p. 407), and they were taken into the extended limits of the City of Atlanta. It is denied in the answer that there was any bonded indebtedness of those municipalities, or that the City of Atlanta assumed any such; and it was alleged that there wen-only a comparatively small amount of outstanding liabilities on the part of Oakland City, to counterbalance which there was a greater amount of municipal assets. Held, that in becoming incorporated as a part of the City of Atlanta, in the absence of any contrary provision, such public aggets and liabilities both passed to that city.</p> <p>10. The act of 1909 is not unconstitutional on the ground that it seeks to loan the credit of Atlanta to Oakland City (Civil Code, § 5891) ; or that • it causes the incurring- of ■ a new deft without a vote (Civil Code, §§ 5893, 5897) ; or that it will cause a tax in the City of Atlanta to pay the debt of Oakland City.</p> <p>11. The act above mentioned is not unconstitutional on the ground that the inhabitants of the added territory will be taxed for the support of' the public schools of Atlanta, as to the establishment of which they had no vote.</p> <p>12. If there be some special provisions of the act of 1909 which are unconstitutional, they are not such integral parts of it as to render the whole invalid. Nor is it necessary to pass upon them until some person affected by them shall seek appropriate relief in regard thereto. They furnish no ground to declare the extension of the limits of the City of Atlanta illegal for the reasons urged against it in the present suit, or to authorize an injunction against the inclusion of the territory where the plaintiffs reside or hold property.</p> <p>13. If there be an inaccuracy in stating the corporate name of a railroad company whose right of way forms for a short distance one boundary of the extended limits, but which is so named as to be readily recognized and located, as averred in the sworn statements of the answer, this furnishes no ground for declaring the entire act void or for granting an injunction.</p>

<p>Petition for injunction. Before Judge Hammond. Columbia, superior court,</p>

<p>Question of law; from Court of Appeals.</p>

Attachment. Before Judge Worrill. Early superior court. On October 18, 1907, J. S. Cowart sued-out an attachment against W. E. Caldwell & Co., to recover the -amount of a -debt alleged to be due the plaintiff, the ground of the attachment being that’“the said W. E. Caldwell & Co. resides out of this State.” The proceeding was returnable to the April term, 1908,- of the superior court of Early county, and upon it summons of garnishment was issued against D. W. James,…

<p>1. There was no error in allowing the amendment to the equitable petition, or in overruling the demurrer to the petition as amended.</p> <p>2. Upon a consideration of all of the grounds of the motion for new trial, none of them presents any reason for a reversal.</p>

<p>Equitable petition. Before Judge Hammond. Burke superior court.</p>

<p>1. Where creditors of an insolvent corporation file a petition praying the appointment of a receiver and a sale of the corporate assets, ánd that from the proceeds of the- sale the debts of the corporation be paid and the balance, if any, distributee] among the stockholders, and the corporation answers admitting its insolvency and the indebtedness of the complaining creditors as alleged, and a receiver is appointed, minority stockholders who allege that the claims of the principal creditors are based on ultra vires acts of the corporation and its officers, in fraud of the stockholders’ rights, and. that they have been unable to obtain relief from the corporation, may intervene for the purpose of contesting the claims of such creditors.'</p> <p>2. As the stockholder’s right to intervene in- suits against a corporation brought by its. creditors springs from the refusal of, the corporation to assert a meritorious, defense which the corporation has to the action, such defense must be pleaded with the same particularity as if made by the corporation. '</p> <p>3. A mortgage deed, reciting that it was executed by virtue of the charter of the corporation, as well as under a resolution of the stockholders copied in the mortgage, authorizing- the board of directors, through its president and secretary, to issue, sell, or' hypothecate first-mortgage bonds on the property and franchises ■ of ^the corporation for a certain amount and in certain denominations, and maturing at stated intervals, and purporting to be the mortgage of the corporation, and signed, “B. W. H. (L. S.), President, E. B. E. (L. S.), Secretary,” though no corporate seal be impressed thereon, is nevertheless prima facie the mortgage of the corporation.</p> <p>4. Allegations by intervening stockholders in a creditors’ petition against the corporation, that the officers of the corporation were without authority to execute a mortgage upon which the corporate seal is not impressed, but which recites that it is executed -under authority of a resolution of the stockholders, and allegations -that neither the corporation nor its officers had authority to create the indebtedness of complaining creditors, are sufficient, as against a general demurrer, to raise the issue that such acts are ultra vires. ' ■</p> <p>5. General and loose allegations, consisting merely of the statement ox conclusions, without averring the facts upon which the conclusions are based, are too indefinite to raise an- issue.</p>

Petition for injunction. Before Judge Park. Mitchell superior court. The plaintiffs in error, as citizens and taxpayers of the City of Camilla, filed tlieir equitable petition against tlie city and its mayor.. and aldermen, to enjoin the issuance and sale of certain bonds which had been authorized to be issued at an election held-for that purpose.

<p>Action for damages. Before Judge Gilbert. Stewart superior court.</p>

Petition for specific performance, etc. Before Judge Bawlings. Tattnall superior court.

Before Judge ICimsey. Stephens superior court. A case pending in a justice’s court was dismissed for want of prosecution. An appeal was entered to a jury in the same court. At a subsequent'term, before a jury was empaneled, the justice of the peace, on motion of defendant’s counsel, again dismissed the ease for want of prosecution.

<p>1. Where executors are proceeding to sell land as the property of their testator under an order from the court of ordinary, and four persons file a joint claim to an undivided interest in the land, it is. not error to allow, at the instance of the claimants, an amendment striking the names of three of them from the claim affidavit.</p> <p>2. A deed was executed in 1859, between Lueco M. Moore of the one part and James M. D. Webb and his wife of the other part, for and in consideration of $3,800, wherein the grantor conveyed to James M. D. Webb and Elizabeth E. Webb a certain tract of land, “to have and to hold the said tract or parcel of land unto the said James M. D. Webb and his wife Elizabeth E. Webb, for iier, his wife Elizabeth E. Webb, her heirs and issue by the said James M. D. Webb, she, the said Elizabeth E. Webb, furnishing two thirds of the purchase-money, and the said James M. D. Webb conveying and by these presents do convey unto his wife, the said Elizabeth E. Webb, and her issue by the said James M. D. Webb his interest in said land,” with warranty of title to James M. D. Webb and Elizabeth E. Webb, and signed only by the grantor. Held, (lj That the acceptance of the deed by James M. D. Webb, containing the stipulation that by the deed he was conveying his interest in the land to Elizabeth E. Webb and her issue, was the equivalent of a covenant of conveyance by him, and that he took no beneficial interest in the land. (2) That the whole beneficial interest in the land passed to Elizabeth E. Webb, and that the words “her heirs -and issue by the said James M. I). Webb,” are words of limitation and not of purchase. (3) That if James M. D. Webb took any estate, it was that of a naked trustee, which trust would have been executed under the married woman’s act of 1806.</p> <p>3. Under the most favorable view of the evidence 'the claimant did not have title to so much of the land as was allowed by the verdict. As there must be another trial, i¿ becomes unnecessary to determine whether there was evidence justifying the charge complained of.</p>

<p>In a written contract one party, for a named consideration, “granted, leased, and conveyed” all the pine timber upon a described tract of land to others, “for the purpose of boxing, working, and otherwise using such timber 'for turpentine purposes” within 4 years from the time sueli use of the timber began, the former unto the latter and their assigns warranting the “timber with the right to box, work, and otherwise use the same for turpentine purposes.” The contract provided that the obligees therein might assign “this lease,” and that all the rights and privileges thereunder should “vest in whomsoever may succeed to the interests hereby conveyed” to such obligees. On the back of the contract was a writing signed by the obligees, reciting that “for value received we hereby transfer to W. A. Johnson the within lease.” The obligor in the original contract only had a life-estate in the timber and land, 'and after Johnson, the assignee, began to cut boxes in the timber, he was enjoined from further using the timber by the real owners thereof. Whereupon the assignee brought suit against the assignors to recover the consideration paid them for the assignment, alleging in his petition the death of the obligor in the original contract and the insolvency of her estate. Held, that the assignee in such assignment did not impliedly warrant that the obligor in the original contract had the right to confer the privileges undertaken to be conveyed therein, and the court committed no error in dismissing the petition upon demurrer thereto.</p>

<p>Injunction. Before Judge Park. - Worth superior court.</p>

<p>Action for damages. Before Judge Rawlings. Jenkins superior court.</p>

<p>Motion to enter award. Before Judge Charlton. Chatham superior court.</p>

<p>1. A mortgage containing a description of the property mortgaged in the following language: “our crop planted this year, and on which said fertilizer is used,” is not void for uncertainty in the description of the property upon which a lien is created.</p> <p>2. Where a mortgage fi. fa., issued upon the foreclosure of a chattel mortgage, is being enforced by a levy upon property of a husband, as appears from statements in the affidavits of illegality filed by the husband and by the wife, the question as to whether the wife signed the mortgage note as principal or as surety is not material, inasmuch as the mortgage, if valid in other, respects, is being ehforeed solely against the property of the husband.</p> <p>3. The other assignments of error presented in the record are without merit and require no discussion.</p>

Action for penalty. Before Judge Meadow. Taliaferro superior court.

<p>Complaint. Before Judge Brand. Clarke superior court.</p>

<p>Equitable petition. Before Judge .Fite. Murray superior court.</p>

<p>Injunction, etc. Before Judge Whipple. Wilcox superior court.</p>

<p>Claim. Before Judge Ellis. Fulton superior court.</p>

<p>Action for damages. Before Judge Boan. Clayton superior court.</p>

<p>Action of trespass. Before Judge Fite. Murray superior court.</p>

<p>1. The evidence was sufficient to support the verdict.</p> <p>2. The plaintiff sought to cancel, as a cloud upon her title, a deed made by her mother to her son, conveying a lot of land assigned to her in the partition of her father’s estate. The defendant pleaded that the plaintiff and her mother orally agreed to exchange lands, which exchange had been mutually recognized for more than thirty years by various acts, such as paying taxes, renting the land, and the like. In trying this issue the circumstances under which the defendant procured the deed from the plaintiff’s mother were irrelevant; as the plaintiff based her right to maintain her action as a devisee of her father, and not as heir at law of her mother.</p>

<p>Action for damages. Before Judge Mitchell. Thomas superior court.</p>

<p>Petition for specific performance. Before Judge Rawlings. Screven superior court.</p>

<p>Action for breaeli of contract. Before Judge Charlton. Chatham superior court.</p>

<p>Appeal. Before Judge Kimsov. Habersham superior court.</p>

<p>1. There was no error requiring a reversal, in overruling the demurrer to the petition as amended.</p> <p>2. Where city ordinances were codified, and such codification was adopted by an ordinance, and the clerk of the council and keeper of the records copied and certified a section of such codification, and also prepared and certified from the record a copy of the adopting ordinance, this was sufficient to authorize the admission in evidence of the copy of the section of the city code. Metropolitan Street Railway Co. v. Johnson, 90 Ga. 500 (16 S. E. 49); Western & Atlantic R. Co. v. Hix, 104 Ga. 11 (30 S. E. 424); 8 Enc. Ev. 825, 820.</p> <p>3. A municipal corporation, under what is commonly called the “general welfare” clause of its charter, may by ordinance make reasonable regulations as to the speed of railroad trains within its limits; and this power is not as matter of law confined to regulating the running of such trains in the streets or public squares of the city or while crossing a street.</p> <p>4. Where suit was brought for the homicide of a workman employed in working on the piers of a bridge where one railroad crossed over another, by reason of being run upon, while temporarily standing on the track, during the passing of a train overhead, by a train on the lower road, which was alleged to have been carelessly run at a reckless speed and in violation of a municipal, ordinance, there was no error in refusing to permit counsel for defendant to ask a witness introduced by him, “Do you know what the custom is, what the bridge gang does for the protection of approaching trains, when they are working on bridges?”</p> <p>(a) This is true although counsel stated that he desired to have the witness state, “if he knows, the custom in railroad operations, where a bridge, gang is at work on a bridge, what they do or are required to do for the protection of approaching trains.”</p> <p>5. Whether or not it was proper, over objection of the defendant, to permit the plaintiff’s counsel to ask a witness whether the person injured could have heard a whistle if it had- been blown at any time before the engine struck him, if done with a view to showing that no such whistle was blown, because he did not seem to have observed it, it will not cause a - reversal that such question was allowed to be asked, where the situation, location, and circumstances were shown, and in answer to the question the witness, a eoemployee on the same job with the injured person and who had been engaged at similar work for the same company for some time, testified that had the whistle been blown opposite to a certain described post or between it find the point where the decedent was struck, the witness could have heard it at the place where, he was standing, and that he did not hear it. Pride v. State, 133 Ga. 438 (60 S. E. 259); 3 Wigmore on Evidence, § 1970; Southern Railway Co. v. Bonner, 141 Ala. 517 (37 So. 702).</p> <p>6. Wnere the question was whether a train was being run at a negligent or reckless rate of speed and in violation of a municipal ordinance, at the time when it struck a man, it was not competent for the defendant to show that the speed was no greater than that at which other trains on former occasions had passed that point, as a means of negativing the charge of negligence. Central R. Co. v. DeBray, 71 Ga. 406 (14).</p> <p>7. Where evidence was introduced by a plaintiff to show that a municipal ordinance prohibited railway trains from running faster than a certain specified speed within the corporate limits, it was not admissible for the defendant to show that some months after the injury the ordinance was changed so as to exclude certain portions of the city from its operation. The making of such an amendment did not show that the original ordinance was void for unreasonableness.</p> <p>8. No exception was taken to the submission to the jury of the question of thé reasonableness of the ordinance as applied to the place of the injury, and the charge and refusal to charge on that subject do not require a new trial.</p> <p>9. In an action against a railroad company for a personal injury dona-to a person not an employee of the defendant, where it is claimed that the injured person could have avoided the consequences to himself of the defendant’s negligence, if it was negligent, by the use of due care, tile measure of care, so due is ordinary care.</p> <p>10. What ordinary care requires a person to do depends on the circumstances surrounding him at the time.</p> <p>11. In the light of the evidence and the entire charge of the court, none of the grounds of the motion for a new trial are-such as to require a reversal.</p>

Assumpsit. Before Judge Cbarlton. Chatham superior court. John R. Young held an insurance policy on his own life for the sum of fifty thousand dollars in the Mutual Life Insurance Company of New York, on which policy he had borrowed four thousand dollars. M. ILyams Jr. was an employee in the office of the agent of the insurance company.at Savannah. Young expressed a desire to sell his policy, and Hyams undertook to negotiate the sale.

Reputable petition. Before Judge Park. Decatur superior court. The Flint Fiver Lumber Company instituted suit against. G. O. Smith and the Smith Lumber Company, a firm composed of J. W. White and J. F. It. Smith, for the recovery of a tract of land and damages on account of trespasses committed thereon. The plaintiff based its right to recover on an alleged grant from the State • and an unbroken chain of title from the State’s grantee to itself.

<p>Appeal. Before Judge Reagan. Pulaski superior court.</p> <p>In 1908 Mrs. Ruby Bullard, Airs, lieimio Thompson, and Watts Morgan by his uext friend filed their petition in the court of ordinary of Pulaski county, seeking to have revoked and set aside the probate of a nuncupative will of Mrs. Emma V. Morgan. The petitioners alleged as follows: Mrs. Emma A'. Morgan died in Pulaski county, November 28, 1892. At the time of her death she left'as her only children the petitioners, Airs. Lola Bpeer, and another child who died in infancy. Her husband, the father of the petitioners, died on May 19, 1907, leaving no heirs except the children. At the time of the death of their mother Mrs. Speer was nineteen years old, Mrs. .Thompson was fifteen, Airs. Bullard was ten, and AA’atts Morgan was four years of age. About March 6, 1893, théir father, Y. H. Morgan, made application to the court of ordinary for the probate of what he alleged to be a nuncupative will of their deceased mother. It was prayed that citation issue to the minor children. On such citation there purports to be an affidavit made by one R. J. Morgan, dated April 10, 1893, setting forth that he had personally served each of the children with a true copy of the citation. At the April term of the court the ordinary appointed a guardian ad litem for the minors, and he accepted the appointment. The will was admitted to probate upon the affidavit or purported affidavit of R. J. Morgan, Lola Morgan, and Emeline Jordan; and Y. II. Morgan qualified as executor under. an'alleged appointment contained in such will. Petitioners learned, about July, 1907, of the fact that the alleged nuncupative will bad been set up and admitted to probate, and that in point of fact no such will was ever'made, and began this proceeding to set aside the probate within three years of the time knowledge of. ,the fact-. Came to them. They were first put on inquiry by a letter written to them about some property in Atlanta. They learned that in fact no nuncupative will was made; that neither of the attesting witnesses ever testified by affidavit or otherwise, “properly sworn to/’ that such a will had been made; that such witnesses did not know the contents of the alleged affidavit which they signed, and the paper was simply prepared and presented to the witnesses, who were told that it was merely a matter -of form which they had to sign, and they signed it without knowing the facts contained in it and without being sworn. The papers were prepared by an attorney, at the instance of their father, and the signatures were made at the instance and by the procurement of iho latter. The purported will was gotten up entirely after the death of Mrs. Morgan by her husband and the father of the petitioners, who desired to have, the property in.such shape that he could take care of it and dispose of it as he saw fit without giving bond as in the case of administration. 'While the record purports to contain an affidavit of i¡. J. Morgan to the effect that ho served the parties named in the citation, yet in point of fact no such service was made and the purported-affiant did not testify that he made such service, but signed the affidavit merely upon the statement that it was a matter of form necessary in order that Y. Ii. Morgan could be made the guardian of his children. The person named as guardian ad Jitein was not informed that he was to act for the petitioners or Lola Morgan, but that his services were desired as guardian ad litem for the infant since deceased, and he did not know until recently that the establishment of the will depended in any way upon any action of his in his capacity as guardian ad litem. Mrs. Lola Speer is the only other surviving heir besides the petitioners. They prayed that citation issue and be served upon her, and upon Ihe alleged witnesses to the will and the person who was appointed guardian act litem for the minor children of Mrs. Morgan.</p> <p>The nuncupative will which was probated appointed the husband of the testatrix her executor, with full power to take charge of her entire estate, and manage it as in his discretion seemed best, to sell, convey, and reinvest the proceeds of any sale as he deemed best, without any order from the court of ordinary for that purpose, and without being required to make any return. It recited, that the testatrix had entire confidence in his judgment and discretion to manage the property for the best interests of their children without any interference from the court of ordinary, and gave him power "to manage without restriction all her said property, leaving it to him when and how to divide it among their children, or to keep it together as long as he lived, or until the youngest child became of full age before any division thereof, o.r make division earlier, or at any time that he saw fit, and in the manner that he thought best; that her said executor should not be made to account for the management or disposition of her property or the proceeds thereof, but should have absolute and untrammeled control of her entire estate during his life without any liable [liability] therefor; and at his death the estate then in his hands should be divided equally between her children, share and share alike; but should the executor make any advances to any child during his or her life as his or her said child’s distributive share in the estate of testator, then such advances so made shall be [accounted] for by such child in the distribution among the children of testator.”</p> <p>In the court of ordinary J. M. Wynn asked leave to intervene and resist the petition to ‘set aside the judgment of probate, alleging that in reliance upon it he had purchased certain property .from the executor, and still owned it. He was allowed to intervene, and hied a demurrer and answer. The ordinary rendered a judgment granting the prayer of the petition and setting aside and annulling the probate of the will. An appeal was taken to the superior court by Wynn. When the case came on for trial, the petitioners demurred and moved to strike the intervention and the pleadings of Wynn, on the ground that he was not a party defendant in the petition and had no right to be heard. The motion was overruled, and-the demurrer of Wynn was sustained, and the petition dismissed. The petitioners excepted to each ruling.</p>

<p>Processioning. Before Judge Mitchell. Berrien superior court.</p>

<p>When a. servant is engaged with others in pulling down, by means of a rope attached thereto, a tree being felled in an open space, the -danger of his being- injured by the fall thereof is an obvious one, and known, or should he known to the servant; and in the absence of an express contract on the part of the master to give warning when the tree begins to fall and in what direction it will fall, there is no duty on him to do so.</p> <p>(a) The,failure of foremen in charge of the details of such work (who at the time of the injury, because of the absence of other employees, are, engaged with the servant who is injured in pulling on a rope to guide tlié direction of .the fall of the tree) to warn the servant when it begins to fall and in what direction it will fall, or to station.themselves or others elsewhere to give such warning, can not be charged against the master as negligence entitling the servant to recover damages for injuries received by reason of the tree falling on him. There being no non-delegable duty vesting on the master to thus warn the servant, the negligence of the foreman, if any, is that of a fellow-servant.</p> <p>(t) The court committed no error in dismissing iho petition upon the general demurrer filed thereto.</p>

<p>Action for specific performance. Before Judge Kinisey. Habun superior court.</p>

<p>Complaint. Before Judge Kimsev. Stephens superior court.</p>

<p>Action for damages. Before Judge Wright. Floyd superior court.</p>

<p>Equitable petition. Before .7mi go Parker. Clinch superior court.</p>

Equitable! petition. Before Judge Ellis. Fulton superior court. Mrs. Hammie F. Hatcher the surviving wife of Marshall J. Hatcher, deceased, and M. Felton Hatcher and Mrs. M. F. H. Clarke, who are his only surviving children, brought suit as .individuals and as the executors of his will against the Equitable Life Assurance Societ)’, to recover upon a policy of insurance issued by the defendant upon the life of the deceased, in which the plaintiffs were named as beneficiaries.

Petition for injunction, etc. Before Judge Pendleton. Fulton superior court. The plaintiff instituted suit to set aside a judgment and enjoin the enforcement of an execution, upon the ground that it was obtained by accident, as shown by the following facts: The suit in which the judgment was obtained was filed on August 18, 1908, returnable to the September term of the city court of Atlanta.

<p>1. Where a grantor in a deed couveys to the grantee, a strip of land "Ru-tile. purpose of a right of way for a street railroad,” and subsequently the same grantor conveys a lot of land to another party by deed in .which the right of way of the railway company is called for as the southern boundary of the lot conveyed to such other party, the latter is not entitled to maintain an action for damages against the railway company for cxcavations made upon its right of way in broadening and lowering its' bed for a railway track, where thorp is no physical invasion of the property of such other party, and no negligence upon the part of the company in constructing its road-bed. affecting ihe property rights of the complainant.</p> <p>2. The plaintiff having alleged that excavations made by the railway company on the south side and east side of her lot of land had injured and damaged her property in a certain sum, and evidence having been introduced to show the aggregate amount of flu; damages to her premises resulting from the excavations both on the south and on the cast, and it appearing- that in no event was the defendant liable for the excavations made on the south, tile court did not err in charging the jury that the plaintiff would not be entitled to damages for injury resulting from the excavations made on the east side unless there was evidence before them from which they could determine the proportionate amount of the damages resulting- to her property in consequence of the excavations made on the east side.</p> <p>3. The rulings of the court in excluding certain testimony offered in evidence were not erroneous, it appearing that Ihe testimony Unis repelled was irrelevant to ihe issues involved.</p>

<p>Complaint for land. Before Judge Rawling. Toombs superior court.</p>

<p>Divorce. Before Judge Charlton. Chatham superior court.</p>

<p>P. contracted with the board of education of the county of S. to teach a common school located near the county line between the county of S. and the county of R, at a salary of $40 per month. The board of education of S. county having refused to pay the teacher’s demand for the full amount of his salary at the rate of $40 per month, he brought suit against the board of education of that county. The defendant denied owing the amount claimed ($120, the aggregate amount of the salary for three months), but admitted that it was indebted to the plaintiff in the sum of $19,79, this being the amount of the teacher’s salary for three months, less $100.21 which had been paid by the county school commissioner of the county of R from the common-school fund on account of children from that county who attended the school 'which the plaintiff had been employed to teach. Held, that the uneontroverted evidence showing that the plaintiff had received $100.21 on account of the attendance of children Erom the county of R. at the school taught by him, the court erred in giving a charge which authorized the jury to return a verdict for the full amount of the salary claimed,' with no deduction on account of the amount paid by the county school commissioner for the county of R.</p>

Equitable petition. Before Judge Lewis. Jasper superior court. In 1873 the will of James Aken was duly admitted to record. He devised a certain tract of land to his grandchildren, Ransom H. Aken and Ellen Geiger, to be equally divided between them. The devise to R. II. Aken was in fee simple, and that to Ellen Geiger was in fee, defeasible upon her death without issue, with limitations over in that event to the other devisees in the will.

<p>Equitable petition. Before Judge Gilbert. Muscogee superior court.</p> <p>B. B. Jordan filed suit against the Niagara Fire Insurance Company, to reform a policy of insurance issued by the defendant to J ordan Brothers, on the ground that it purported to insure the interest of Jordan Brothers in certain property when it should have insured the interest of plaintiff, who had been a member of the firm of Jordan Brothers but had purchased the interest of his partner at the time of the issuance of the policy of insurance; .and to enforce the payment of this policy. The court overruled the defendant’s demurrer, and the exception is to this judgment.. Omitting formal allegations, the petition as amended stated the cause of action as follows:</p> <p>“Your petitioner shows that on the 7th day of May, 1907, the said defendant did contract and enter into a contract of insurance with your petitioner to insure a stock of goods of petitioner, bearing the number 17,748, which said polic.y of insurance was issued by its local agent, James AY. Woodruff. Said policy above described being for the sum of five hundred and no/100 ($500) dollars, covering a stock of merchandise located at No. 1127 Broad street in the city of Columbus, said State and county, on a general stock of merchandise consisting of hoots, shoes, slippers, overshoes, and all other merchandise not more hazardous and usual to the trade.</p> <p>“Petitioner shows that at the date last above mentioned and at the time he contracted with said defendant ho was the sole and exclusive owner of the property so insured, and that his ownership in said property did not change from said date of insurance until the 8th day of Feb., 1908. Petitioner shows that said contract was made by and with your petitioner ‘B. B. Jordan’ in his own right, and by and through a mistake on the part of said company’s agent and this petitioner, which mistake was made by the agent drafting said insurance contract, instead of putting the name of petitioner in said contract as being insured, the name ‘Jordan Bros.’ was put in said contract by the said draftsman, which mistake originated by and through the fact that a firm by the name of ‘Jordan Bros.,’ of which petitioner was formerly a member, did business in the same storehouse prior to Dec. 6th, 1906. Said mistake was a mutual mistake in that it was overlooked by your petitioner until Feb. 8th, 1908, at which time a loss occurred under said policy. Your petitioner, shows that on the 6th day of December, 1906, the said firm of Jordan Bros, was dissolved, and that notices of dissolution were duly published in the newspapers published in Columbus, in said ¡State and county, and that your petitioner, by virtue of said dissolution, succeeded Jordan Bros, and became the sole and exclusive owner of the property heretofore owned by Jordan Bros., located' in the storehouse heretofore described. Your petitioner shows further that on the 19th day of November, 1907, he was tlie sole and exclusive owner of the property covered by policy 12,748, issued by defendant, and that the said defendant, at the time of the issuance of said policy, well knew that the said firm of Jordan Bros, had been dissolved and your petitioner had succeeded it? and that the making of the said policy-payable to Jordan Bros., instead of B. B. Jordan, was caused through a' clerical error or inadvertence or mistake on the part of. the defendant, through its agent, and through no fault of petitioner.</p> <p>“That on the 19th day of November, 1907, in consideration of the payment by the said B. B. Jordan to the defendant of the sum of seven and U/KH) dollars as premium paid to defendant, defendant did issue its certain policy of insurance in writing, insuring said property above mentioned against loss or damage to petitioner, by lire, from the 19th day of November, 1907, at noon, to the 19th day of November, 19.08, at noon, a copy of which policy is hereto attached and made a part hereof, marked exhibit “A,” and to which leave of reference is prayed.</p> <p>“That on the 8th day of February, 1908, said stock of goods above described in said policy of insurance was destroyed by fire, without the fault of your petitioner; and the loss to your petitioner occasioned thereby was the sum of live hundred and no/100 dollars, said insurance policy covering-said stock and loss to the amount of live hundred and no/100 dollars.</p> <p>“Petitioner gave to the defendant immediate notice of loss and otherwise performed all of the duties imposed upon him by the terms of said policy.</p> <p>“Petitioner, within the time prescribed by said policy, made demand upon defendant for the amount due upon said policy; and although, said defendant had -agreed and undertaken to pay such loss as might occur under said policy, the said defendant did in writing deny any and all liability to your petitioner under said policy, thereby waiving proof of loss. Nevertheless petitioner in good faith did forward and furnish to defendant proof of loss within the time prescribed in said policy, and that the said defendant still failed to pay said amount, or any part of said loss.</p> <p>“Petitioner shows that he has now fully complied with,'all of the terms and conditions of the policy that it was incumbent upon him to do; but that the said defendant wholly and totally fails and refuses to comply with its part of the contract and to pay your petitioner the loss sustained, or any part thereof.”</p> <p>The prayers were, “(a) That said policy, No. 12748, issued by defendant, be reformed and the mistake of inserting ‘Jordan Bros.’ be corrected and the name B. B. Jordan be inserted as the assured, so that the policy shall read ‘does insure B. B. Jordan/ instead of ‘does insure Jordan Bros.’ (&) That lie have judgment against said defendant for the sum of five hundred and no/100 dollars, with interest thereon since the 8th day of April, 1908, at the rate of seven per cent, per annum, with costs of suit,” and for general relief. A copy of the policy was attached.</p> <p>The substance of the demurrers was: that no cause of action was alleged; that, it appearing from the petition that the policy was a renewal of a former policy issued to Jordan Brothers, and no notice of a change of ownership in the property insured from J ordan Brothers to B. B. Jordan having been alleged to have been given to the defendant, the petition failed to set up any reason which would authorize a reformation of the contract of insurance by a change of the parties; that no mutual mistake is alleged; that the petition shows the plaintiff guilty of laches in discovering the alleged mistake; and that the petition fails to allege any oral or written agreement to issue the policy to B. B. Jordan.</p>

<p>Action for damages. Before Judge Mitchell. Tift superior court.</p>

<p>Equitable petition. Before Judge Mitchell. Tift superior court.</p>

<p>Trover. Before Judge Pendleton. Eulton superior court.</p>

<p>Habeas corpus. Before Judge Pendleton. Fulton superior court.</p>

<p>Processioning. Before Judge Roan. DeKalb superior court.</p>

<p>Complaint for land. Before Judge Hammond. Richmond superior court.</p>

<p>Action for damages. Before Judge Felton. Bibb superior court..</p>

<p>Action for damages. Before Judge Martin. Telfair superior court.</p>

<p>Exceptions to auditor’s report. Before Judge Charlton. Chat-ham superior court.</p>

<p>Claim. Before Judge Morris. Gilmer superior court.</p> <p>An execution in favor of Mahala Shelton against Wesley Shelton was levied upon certain real estate to which J ohn W. Shelton filed a claim. Upon the trial, on motion of counsel for the claimant, the levy was dismissed upon the ground that the officer’s entry did not sufficiently describe the property levied on; and the plaintiff excepted. That entry was in the following language: “Georgia, Gilmer Countjr. I have this day levied the within fi. fa. on parts of land lots Nos. 51 & 22 in 11th Dist., 2nd Sec. of Gilmer Co. (80 a. of No. 51, more or less, 47 a. No. 22), as the property of Wesley Shelton, to satisfy a fi. fa. issued from the superior court in favor of Mahala Shelton and against Wesley Shelton.” The claim affidavit was in the following language: “Georgia, Murray County. Personally appears before the undersigned officer John W. Shelton, who on oath says that 80 acres more or less of the west side or half of lot of land Number 51 in the 11th District and 2nd Section of Gilmer County, Georgia, and 47 acres more or less of the northeast side of the west half of lot of land Number 22 in the 11th District and 2nd Section of Gilmer County, Georgia, the same being all of said west half of said lot of land except 33 acres more or less sold to M. B. Smith and described in a deed to said Smith, levied on by E. A. Pinson, Deputy Sheriff of Gilmer County, Georgia, by virtue of an execution issued from the Superior Court of Gilmer County, Georgia, in favor of Mahala Shelton against Wesley Shelton, as the property of said Wesley Shelton, is not the property of said Wesley Shelton, but is the property of affiant ;” etc.</p>

<p>Where A, the secretary of a mining corporation, who is largely indebted to it upon a stock subscription, agrees with B, its president, that he will buy certain machinery needed by tlie company and sell it to the company for tlie price he pays for it as a credit on his indebtedness, and A negotiates with a manufacturer for the purchase of the machinery, informing the manufacturer of his arrangement and agreement to sell it to the mining corporation, and the machinery is selected by A and inspected and approved by B, and the terms of sale are that A is to pay one third casli and give his notes for the balance, and the manufacturer at the instance and request of A ships the machinery to the mining company, which pays the freight and installs the machinery at considerable cost, and which immediately cancels so much of A’s indebtedness as is represented by the price of the machinery, the title of the mining corporation is superior to a conditional bill of sale signed by A, in which the manufacturer reserves the title to the property until the deferred payments are met, and of which neither the mining company nor its president has notice prior to the time of consummation of the sale. The subsequent record of the bill of sale within the statutory time would not change the rights of the parties.</p>

The Sylvania & Girard Railroad Company and certain individuals, one of whom was alleged to be the president and the others .directors of the corporation, applied for the writ of mandamus against Morel, Overstreet, Mock, and certain agents of the corporation, to compel the defendants to deliver to them all the books, papers, money, and other property of the company in their possession or control, it being alleged that one of the defendants was the former president and the…

<p>Complaint. Before Judge Brand. Jackson superior court.</p>

<p>Exceptions to auditor’s report. Before Judge Reagan. Pike superior court.</p>

<p>Complaint for land. Before Judge Rawlings. Pulaski superior court.</p>

<p>Equitable petition. Before Judge Peagati. Campbell superior court.</p>

<p>1. When a boundary given in a deed is the land of a named person, the description of this particular boundary will be sufficient, although the title of such third person may be defective, if it be made to appear that the maker of fbe deed recognized him as the owner and as claiming the land, and the boundary line of the adjacent tract is established by competent extraneous evidence.</p> <p>2. The evidence was sufficient to support the. finding of the. jury against the contention of the plaintiff that the levy of a tax fi. fa., which was the foundation of a. tax deed to claimant’s predecessor in title, was void because excessive.</p>

<p>1. The act approved October 21, 1891 (Acts 1890-1891, vol. 2, p. 898), entitled, “An act to amend the charter of the town of JSIIijay, in the county of Gilmer, and to confer certain powers therein named,” is not violative of the provisions of art. 3, sec. 7, par. 17, of the constitution (Civil Code, §5679), on the ground that the act failed to sufficiently designate the previous acts of the General Assembly which constituted the charter of the town of Ellijay. Puckett v. Young, 112 Ga. 578; Town of Poulan v. Atlantic Coast Line R. Co., 123 Ga. 605; Burge v. Mangum, 134 Ga. 307 (67 S. E. 857).</p> <p>2. The provision of the act of the General Assembly, approved October 16, 1891 (Acts 1890-1891, vol. 1, p. 231; Political Code, §717), “That the mayor and council of each town or city are authorized, at their option, to elect three freeholders residing in the town or city, as assessors, who shall value and assess all the property within the said town or city liable for taxation,” is to be construed as cumulative, conferring upon the municipalities the option of assessing property for taxation through the. agency of appointed freeholders, but does not preclude an assessment through other agencies provided by law.</p> <p>3. In so far as the charter of the town of Ellijay (Acts 1890-1891, vol. 2. p. 898, sec. 10) purports to authorize the mayor and council to assess or raise the valuation of any unreturned property to its true market value, it is violative of the due-process clause of the constitution of the United States, and of the similar clause of the constitution of the State-of Georgia, because no provision is made which affords the owner of any unreturned property a hearing on the question of its value.</p> <p>(a) It is unnecessary to deal with other questions which relate exclusively to the exercise of discretion by the judge.</p>

<p>The former husband of one of the defendants brought suit against her and her present husband, alleging in the original petition, filed December 24, 1907, that in 1889 and 1890 described lots of land were conveyed to the plaintiff, of which he was in possession up to December 25, 1901, when defendants took possession of the lands “under some pretended but fraudulent and unlawful claim, . : and have since over the protest” of the plaintiff' held such possession, and that after plaintiff obtained title to the lands he conveyed the same to his brothers, who, on December 3, 1907, convoyed tlie same back to him. He prayed for a recovery of the lands, and “especially for any and all such orders, judgments, and decrees as may be 'consistent with law and equity in such eases made and provided.” The plaintiff offered an amendment to the^ petition, alleging that, upon the false and fraudulent representations of his former wife that if he would have his brothers to make' her a deed to the lands she (who was then living separate from him) would immediately return to him and live with him as his wife “so long' as they both might live,” plaintiff' had his brothers (who held from him a deed to the land to secure a debt which had been paid) to make her a deed on July 13. 1895, under which she claimed title io the land. She returned to the, plaintiff’s home July 24, 1895, but slept in a separate room and refused to cohabit with the plaintiff, and left him on August 20, 1895, and thereafter married her present husband. Her promise to live with the plaintiff as his wife was falsely and fraudulently made for the purpose of procuring the deed made to her. In the amendment the plaintiff prayed for a cancellation of such deed. Held:</p> <p>1. .Such amendment was allowable, and was not subject to the objection that it added a new and distinct cause of action.</p> <p>2. The petition as amended sought to set aside the deed to the wife because, of its having- been procured by her fraud, and was not subject to demurrer on the ground “That said petition as amended is an attempt to add by parol to the terms of a written instrument, to wit: an attempt to a<ld to the terms of on unconditional deed, by parol, a condition that it was to be effective only in the event that the defendant lived with .plaintiff' as his wife.”</p> <p>(«.) Though the deed recited a consideration of $1,500, it could be shown by parol that the real consideration was as alleged in the amendment.</p> <p>3. The time during which the plaintiff was in peaceable possession of the lands should not be counted against him in determining whether or not he was barred by lapse of time from invoking the aid of a court of equity in having the deed to his wife cancelled.</p> <p>(а) The plaintiff having sought by equitable proceedings to have the deed set aside within seven years from the time he lost possession of the property and she took possession, his right to ask a court of equity to set aside the deed is not barred by his own laches.</p> <p>(б) Upon proof of the allegations of the petition as amended, that the former wife of‘ the plaintiff procured the deed by fraud as alleged, the plaintiff is entitled to have the deed cancelled. The petition as amended set forth a good cause of action and was not subject to general demurrer.</p>

<p>The petition set forth a cause of action, and therefore it was error to dismiss it on general demurrer.</p>

Action for damages. Before Judge Cliarlton. Chatham superior court. The substance of the petition, now material, was as follows: The plaintiff, 27 years of age, without experience in the operation of saws, was employed by defendant to operate a “bolting” saw in a shingle-mill, and was instructed by defendant in its use. He continually operated the “bolting” saw for two weeks, when he was directed by defendant to operate a “shingle” saw.

<p>Motion for new trial. Before Judge Wright. Walker superior court.</p>

<p>Injunction. Before Judge Wright. Floyd superior court.</p>

<p>Injunction. Before Judge File. Walker superior court.</p>

<p>Action upon insurance policy. Before Judge Reagan. Butts superior court.</p>

<p>Under the fads of this case the court erred in granting a nonsuit.</p>

<p>Bevival of dormant judgments. Before Judge Reid. Fulton superior court.</p> <p>In the fall of 1908 the Muscogee Manufacturing Company and nineteen other parties, whose names will hereinafter appear, filed their several petitions against John T. Moody in the superior-court of Eulton count}'', alleging that at the March term, 1898, an equitable petition was filed by the Park Woolen Mills et al. against Moody & Brewster, a firm composed of John T. Moody and G. S. Brewster, in which case Brewster was not served; that petitioners were parties plaintiff to the cause, and on June 30, 1900, a'final verdict and decree were rendered in the case, under which each petitioner was given a judgment for an amount which, was stated; that no fi. fa. was ever issued upon the judgment; that none of the principal, interest, or costs had been paid, and that by reason of the lapse of time the judgment was dormant; wherefore they prayed that scire facias be issued, and that judgment thereon be revived.- Full reference to the cause in which the judgment was rendered was made. The defendant Moody answered the scire facias in each case, admitting that an equitable petition was filed in the superior court of Fulton county by the Park Woolen Mills et al. against Moody & Brewster, a firm composed! of himself and G. S. Brewster, in which case Brewster was not served, “that on June 30, 1900, a final decree was rendered in said cause,” and that no fi. fa. had ever been issued upon this decree. He alleged, that the judgment, if ever valid, is now dormant; that the alleged judgment sought to be revived in each instance is void for vagueness, indefiniteness, and uncertainty, in that the judgment is not, in practical effect, awarded for any definite sum, and the amount for which the judgment should have been or might have been rendered can not be determined either from the judgment or the pleadings in the cause of the Park Woolen Mills et al. against Moody & Brewster, since the amount stated in the alleged judgment for each one of the plaintiffs is subject to uncertain deductions or credits which must be proved by aliunde evidence; that the several plaintiffs are not entitled to revive their alleged judgments, for the reason that, if ever valid, the judgments have been released by the discharge in bankruptcy of J. T. Moody, granted on May 3, 1902, in a voluntary bankrutcy proceeding, in which the several plaintiffs were listed as creditors of Moody in his schedule filed in that proceeding; and that the debt of each plaintiff was a provable debt in bankruptcy. The defendants in error severally demurred to the answer, on the grounds: (a) the answer set up no legal reason why the judgment should not be revived; (6) the record discloses that the judgment rendered in the case of Park Woolen Mills ot al. against Moody & Brewster is neither vague, indefinite, nor uncertain; (c) the discharge in bankruptcy granted to John T. Moody on May 3, 1902, did. not apply to the judgments rendered in favor of the several plaintiffs, because the judgments were based upon fraud; (d) the defendant is not entitled, under the facts set up in his answer, to a trial by jury. The answer was amended, alloging, that the decree of June 30, 1900, in the case of Park Woolen Mills et al. against Moody & Brewster, referred to in the petitions for scire facias, did not contain a final judgment against the defendant or the firm of Moody & Brewster, that the alleged judgment was interlocutory only, and did not finally fix and settle the rights of the parties to the litigation, but left the rights to be determined at some future date, the cause being retained for that purpose; that no final judgment was ever rendered; and therefore that the plaintiffs have no judgments in their favor, capable of being revived against the defendant. The demurrers to the answer were renewed, and sustained by the court, who struck the answers as amended, and entered up judgment reviving the alleged dormant judgments in favor of the respective applicants.</p> <p>The cause of Park Woolen Mills et al. v. Moody & Brewster (wherein'the decree of June 30, 1900, was rendered and to which reference is made in the several petitions for scire facias and the answers thereto) was an equitable petition by the creditors, alleging, in substance, that in 1897 and 1898 J. T. Moody and G. S. Brewster were engaged in several businesses under different trade names in the city of Atlanta, and in the latter part of 1897 they entered into a general dry goods and notion business, opening several stores in Atlanta, and were traders engaged in such business; .that the defendants were insolvent; that Brewster had absconded; that Moody, in behalf of the partnership, had on the previous day executed a large number of mortgages, approximating $77,000; that the goods covered by these mortgages were goods bought from complainants and other creditors, and utilized by the defendants as a basis for loans to pay antecedent debts not arising from the purchase of the goods, the genuineness of which debts was not admitted ; that these acts amounted to a fraud upon defendants’ creditors; that the goods of petitioners were purchased by Moody & Brewster without any intention at the time to pay for same; that the mortgages are void, and petitioners had a right to identify and reclaim their goods. The prayers were: that the defendants be restrained from further changing the status of their business; that a receiver be appointed; that the assets of the firm be marshaled; that they be allowed to reclaim their goods as against all of the mortgages, except one which was not attacked, and that they have a judgment for whatever goods they could not claim. The original-petition was amended by alleging that the firm of Moody & Brewster bad. been operating in many lines of business under different• names (stating them); that they had indiscriminately used the money from each of the concerns operated by them and the. dry goods business for the furtherance of their interests; and that the business of one could not be separated from, that of the other; and by further alleging fraud in certain transactions between ,J. T. Moody and his sister, in that Moody had convoyed to her certain land, which conveyances were made for the purpose of hindering, delaying, and defrauding creditors, and in a similar transaction with the nephew of the absconding partner, G. S. Brewster. The petition was again amended, making the Laurel Mills Manufacturing Company and the Tennessee Woolen Mills,, two of the plaintiffs in the present litigation, parties to the case, and alleging that the defendants purchased goods from intervenors, representing themselves to lie solvent, and that the goods were sold upon the credit of these statements, when as a matter of fact, the defendants, had no intention of paying for the goods, and fraudulently-concealed their intent. This amendment adopted all of the prayers of the original petition. Numerous other creditors filed their interventions (20 of‘them being parties to the present litigation), all of them, except as hereinafter noted, setting up substantially (and severally expressly adopting) the allegations and prayers of the original bill, and alleging in substance as follows: that-they sold and delivered to Moody & Brewster goods amounting to a eer-. tain sum, as shown by their attached bill of particulars; that in order to obtain this credit the defendants made fraudulent statements, to the mercantile agencies, of their wealth and financial responsibility, for the purpose of having said statements communicated to .petitioners (intervenor in each case), which statements were actually communicated, upon the faith of which petitioners sold the goods; that these statements were made and the goods purchased under a scheme to defraud, and with no intention to pay for the goods; and that the defendants engaged in.the general scheme of purchasing a large quantity of goods, far in excess of their needs, procuring them on credit by false representations, with the; deliberate purpose and intention of placing mortgages upon them tq. further their general scheme of fraud, and prefer certain, creditor^.,, The prayers were that it.be adjudged that the title to. the goods did .not pass, because of the fraud, and that they be allowed to identify and recapture their goods, and-have judgment for such as may not be reclaimed. The substance of the interventions of the Third National Bank of Atlanta and the Liebig Manufacturing Compan3>- appear in the last division of the opinion. The questions of the priorities of liens held by the various intervenors, as between themselves, were also raised by some of the intervenors. The defendant Moody answered for himself individually, and for the firm. The allegations of the various interventions, as well as the original petition, respecting the amounts of indebtedness, the dates, amounts, and execution of the various mortgages as set out, were all admitted. lie denied all allegations of fraud or false statements or representations in the procurement of the goods; and alleged, that they did represent themselves to be solvent and fully able to pay, that they were at the time solvent, and that the firm had been rendered insolvent since that time on account of the conduct of Brewster, who had absconded.</p> <p>The court appointed a receiver to take charge of the assets, and referred the ease to an auditor, with direction to hear the evidence and the various contentions of the parties and determine their rights. The auditor filed a report covering the various issues, and exceptions wore filed by certain creditors relating to contests with other creditors over the funds. These exceptions were passed upon by a jury, and a decree was entered in general accord with the auditor’s report as modified by the verdict upon the issues raised by the exceptions. On June 30, 1900, a decree was entered, adjudging, that the various partnerships under which Moody & Brewster did business were insolvent, and the members thereof were likewise insolvent; “that on or about January 1st, 1898, Moody & Brewster, •under whatsoever stjde they were doing business, and as individuals, were insolvent; and that on or about said date they entered into a general scheme having for its purpose the purchase of goods and the obtaining of credit, both for the money and goods, to defraud those with whom they might deal, and that they then and thereafter purchased goods and obtained credits with no intention to pay therefor, and with intent generally to defraud their creditors; and as to individual instances where parties to said cause have been found by the auditor to be entitled to rescind their sales ■and reclaim goods identified, the auditor’s report as to them is hereby adopted and made a part of this decree, both as to findings of a general scheme to defraud and as to special frauds perpetrated upon particular parties.” After fixing the priority of certain liens in accordance with the auditor’s report, the decree then proceeds: “The following complainants and intervenors in said cause, having chosen to rescind their sales, and having identified certain goods, in the hands of the receiver, are decreed to be entitled to rescind said sales because of fraud practiced upon them by Moody & Brewster, and to be entitled to reclaim the proceeds of the goods so identified by them and sold by the receiver; subject, nevertheless, to their proportionate part of such costs as are hereinafter taxed against them, and subject to such other prior claims and liens as in this decree have been found to be superior to their right of reclamation, which they are hereby likewise charged with proportionately. The amounts realized from the sale of said goods are respectively set opposite the names of the parties.” Then follow the names of these intervenors, and the amounts opposite their names: Abegg & Busch, $1,381.00; Atlanta Woolen Mills, $3,276.14; Cleveland Woolen Mills, $90.43; Glens Falls Shirt Company, $500.17; Laurel Mills Manufacturing Company, $1,917-17; Owensboro Woolen Mills, $4,553.83; Old Kentucky Woolen Mills, $1,800.47; Porter Brothers & Co., $138.61; Boaring Springs Blank Book Company, $384.64; Strauss, Sach & Co., $209.81; E. T. Steele & Company, $946.49; Scheuer Brothers, $374.38; Silverstein, Hecht & Co., $1,-620.07; Tennessee Woolen Mills, $1,394.59. ' The next paragraph of the decree is: “The following complainants and intervenors,. who under previous orders of this court have been allowed to take' from the possession of the receiver certain goods identified by them, are hereby decreed to be entitled to reclaim said goods and to retain the same, but are hereby required to pay into the hands of the-receiver such a proportion of the costs and expenses and liens, which are by this decree fixed as prior to their right of reclamation, as may be necessary to comply with the terms of this decree, less ten per cent, of the invoice cost thereof already paid into the hands of the receiver under the orders of court. The invoice cost of the-goods so taken out by them is respectively set opposite their names as follows.” Guiterman Brothers, $586.11, were the only intervenors, parties to the present litigation, who reclaimed their goods under this paragraph of the decree. The Atlanta Woolen Mills-were also “decreed to recover of and from tlie Fourth National Bank of Atlanta the following accounts, proceeds of goods sold by it to Moody & Brewster, or, where the same have been collected by said bank, the full proceeds of such collection; said accounts being as follows:” Then follows a list of such accounts, giving the amount of each account, aggregating $1,8.22.04. In the 28th paragraph the Cleveland Woolen Mills were “decreed to recover of the Fourth National Bank of Atlanta the following accounts, proceeds of goods sold by it to Moody & Brewster, where said accounts or any of them have been collected by said bank, the full proceeds thereof collected by said bank shall be paid by said bank to said receiver, said accounts being as follows.” Then follows a list of the accounts, aggregating $2,174.22. It is “further ordered and decreed that the following named accounts are the proceeds of the goods of the Berkeley Chemical Company which were sold by it to Moody & Brewster under such fraudulent circumstances as herein-before found as authorized them to rescind said sale upon discovery of said fraud, and to reclaim said goods or their proceeds wherever found, except in the hands of innocent purchasers for value and without notice; and that said Berkeley Chemical Company is hereby awarded the open accounts hereinafter set forth, and the receiver is directed to turn over said accounts to said Berkeley Chemical Company. And the Fourth National Bank is decreed not to be entitled to any part of said open accounts which it may have received as security for the pre-existing indebtedness to said bank at the time of the failure of thg said Moody & Brewster, or the cash collections on any such open account so received. The items of said accounts as appearing by the hooks of Moody & Brewster, as shown cn page 152 of the brief of evidence in said cause, being as follows:” These items aggregate $3,440.50. The next paragraph was as follows: “It is further ordered, adjudged, and decreed that the following parties are entitled to recover of the defendants, Moody. & Brewster, by general judgment the gross amounts which are respectively set opposite their names, which amounts and judgments are to be respectively credited with any sums which any of said parties received from the receiver in this case under this decree, and from collateral securities which they may have held as security therefor, namely:” Then follow; Abegg & Rusch, $1,764.37; Atlanta Woolen Mills, $5,675.52; Berkeley Chemical Company, $25,-121.48Cleveland Woolen Mills, $2,589.94; Glens Falls'Shirt Company, $630.55; Guiterman Brothers, $659.23; Liebig Manufacturing Company, $14,756.70; Laurel Mills Manufacturing Company] $3,724.52; Muscogee Manufacturing Company, $1,338.57; Mechanics National Bank, $21,036.48; Owensboro .Woolen Mills, $5,552.39; Old Kentucky Woolen Mills, $.2,378.90; Porter Brothers & Company, $374.65; Soaring Springs Blank Book Company, $496.31; Strauss, Sach & Company, $345.23; 'Steele & Company, $1,050.26; Scheuer Brothers, $700.62; Silverstein, Ilecht & Company, .$3,032.78; Tennessee Woolen Mills, $1,917.51; Third National Bank, $8,500.00. Then follows, “For the balances for which general judgments are hereby rendered, the clerk of the court shall, upon application, issue separate executions.” After giving directions to the receiver as to the disposition of funds in his hands, the decree concluded with the following paragraph: “The right is reserved to make such further orders, judgments, and decrees as may be necessary to carry into effect the true intent and meaning of this decree.”</p> <p>The auditor’s report was filed on the Sth of December, 1899, and the decree of the court entered up thereon on June 30, 1900:' After this date the court passed different orders for the direction of the receiver in disposing of a small balance of property of Moody & Brewster, and direction as to other matters; and the receiver on March 11, 1901, filed his final report of disbursements and receipts, which was approved by the court, and the receiver discharged.</p>

<p>Ejectment. Before Judge Martin. Johnson superior court.</p>

<p>1. When considered, as a whole, the petition on which the ordinary oí Tattnall county ordered an election in the school district of that county known as the Claxton-Hagan district was in substantial compliance with the law, and the election so ordered and held was not void on the ground that such petition furnished no basis for the order, so as to authorize an injunction to be granted against the levy of the local tax in such.school district by virtue of the election.</p> <p>2. The act of August 23, 1905 (Acts 1905, p. 425), as amended by the act of August 21, 1906 (Acts 1906, p. 61), provides for the laying out of counties into school districts by the county boards of education, and that such boards shall order an election for trustees in the respective districts so laid out. Whenever the citizens of any school district, in a county not levying a local tax for educational purposes, wish to supplement the funds received from the State school fund by levying- a tax for educational purposes, they shall present to the 'ordinary a petition from one fourth of the qualified voters of the district, and thereupon the ordinary shall order an election to determine the question of local taxation. There is no provision in either of said acts for the ordinary to order an election to determine whether a school district shall be laid out, or for the purpose of electing trustees in such a district.</p> <p>3 If a school district had been duly laid out, and upon a petition of one fourth of the qualified voters thereof the ordinary ordered an election to determine the question of local’ taxation, but also included in his order that trustees, for the school district should be elected, which was done, and the county board of education, although it did not order the (dection of such trustees, recognized and approved the persons elected as such and caused them to be commissioned, and they acted as trustees under such commissions, they were de facto officers, and their actions as such, which de jure officers would be authorized to perform under the law, could not be collaterally attacked as void on account of the manner of their election.</p> <p>( a) After the trustees of a school district were thus elected and commissioned, upon the expiration of the terms of two of them the board of education of the county ordered an election to be held to select successors for them: semble, that the persons so selected for, the new terms, . whether the same as those originally elected or not, after such election and being- commissioned thereunder, were.de jure trustees.</p> <p>4. The petition to the ordinary for the purpose of calling an election to determine the question of levying a local school tax in a district should bo signed by the petitioning voters themselves. There is no provision for an attorney at law to present a petition, signed only by him, as the representative of a number of voters. The signature of one acting as an attorney can not take the place of the signatures of the voters.</p> <p>(a) In the present case a petition was signed by persons purporting to constitute one fourth of the qualified voters of the district. A copy of this was attached to an additional petition to the ordinary, signed by certain persons as attorneys for the petitioners. The latter petition was not a substitute for, or in lieu of, a petition by the. voters, and the persons named in it also signed the other petition. This mere duplication of petitions did not operate to invalidate the original petition signed by the requisite number of voters.</p> <p>5. If an enrolled act of the legislature was duly signed by the president of the Senate and the speaker of the House and approved by the Governor, and deposited in the ofiiee of the secretary of State, it was not competent to attack its validity on the ground that the legislative journals showed that the bill originated in the House, was there passed by a constitutional majority and transmitted to the Senate, where it was amended and passed by a constitutional majority, and then transmitted to the House, where the Senate amendment was concurred in, but failed I» show that this was done by a constitutional majority.</p>

<p>The Court of Appeals certified to tlie Supreme Court the- following questions:</p> <p>1. The defendant was tried in tlie criminal court of Atlanta on an accusation charging- that he, in the county of Fulton, on the 26th day of February, 1909, did keep on hand at his place of business intoxicating liquors. Was the accusation good as against a demurrer on the following grounds ?:</p> <p>“That the legislature of the State of Georgia was without authority to enact the prohibition law under whieh'this defendant is indicted (to wit, the act approved August 6th, 1907, entitled, ‘An act to prohibit the manufacture, sale, barter, giving away to induce trade, or keeping or furnishing at public places, or keeping on hand at places of business, of any alcoholic, spirituous, malt or intoxieating liquors or intoxicating bitters or other drinks -which) if drunk to excess, will produce intoxication; to Accept sales of alcohol in certain cases, upon- certain conditions; to provide certain rules of evidence in connection with the énforconient thereof; to prescribe penalties, and for other purposes’). That by article 8, sec. 1, par. 1, of the constitution of said State it is provided that ‘there shall bo a thorough system of common schools for the education of children,’ and by article 8, see. 3, par. 1, of said constitution it is provided that ‘the poll-tax, any educational fund now belonging to the State (except the endowment of, and debt dne to, the University of .Georgia), a special tax on shows and exhibitions, and on the sale of spirituous and malt liquors, which the General Assembly is hereby authorized to assess, and the proceeds of any commutation tax for military service, and all taxes that may he assessed on such domestic animals as, from their nature and habits, are destructive to other property, are hereby set apart and devoted for the support of common schools,’ and that it is therefore mandatory upon the General Assembly of said State to assess a specific tax on the sale of spirituous and malt liquors as one means of supporting such schools; and said prohibition act being an act to prohibit the sale of said liquors in said State, and by consequence an act to destroy the subject-matter on which said mandatory constitutional tax is ordained to operate, is, so far as the same assumes to prohibit the sale of such liquors in said State, no law, but null and void by reason of a lack of constitutional authority in said General Assembly to enact the same.</p> <p>“That said prohibition act, so far as the same assumes to prohibit the manufacture, sale, barter, giving away, keeping and furnishing of any of the liquors therein specified, in said State, is inconsistent with and repugnant to article 1, sec. 5, par. 2, of the constitution of said State, wTiich provides as follows, to wit: ‘The enumeration of rights herein contained as a part of this constitution shall not be construed to deny to the people any inherent rights which they may have hitherto enjoyed,’ because at the time said constitution was adopted in 1877 the people of said State had ever theretofore enjoyed, as an inherent right, tlie right to make, sell, barter', give away, keep and furnish anj' such liquors, subject only to sundry statutory regulations as to the sale of such liquors in tippling-houses, and the intent and effect.of .said just-cited clause of said constitution was and is to inhibit the General Assembly of said State from denying the same, the defendant conceding that said Assembly has the right to regulate said rights by any regulation not destructive thereof or otherwise illegal.</p> <p>“That the act referred to and heretofore described is in direct contravention of paragraph 8, sec. 7, art. 3 of the constitution of the State of Georgia, Avhicli said paragraph is to be found in § 5771 of the Code of the State of Georgia, and which paragraph provides, amongst other things, as follows: ‘No law or ordinance shall pass which refers to more than one subject-matter;’ because said act is repugnant to the constitutional provision aforementioned, for the reason that the same in terms prohibits both the sale and manufacture of the various liquors in said act mentioned. That sale and manufacture are in the very nature of things two separate and distinct subject-matters; that, because of the limitation imposed upon the power of the General Assembly by the terms of the paragraph aforementioned, the prohibition against both the sale and manufacture of such liquors could not lawfully be included within the terms of said act; that the two provisions of the acts aforementioned are so blended one with the other as that they constitute one general expression of the legislative scheme, and neither can be disregarded without destroying the evident purpose intended to be accomplished by the passage of the legislation in question; and therefore, that, because the said two subject-matters are thus sought to be included within the terms of said act, the said act is rendered thereby unconstitutional, null, and void as a whole.”</p> <p>2. To the accusation referred to in the preceding question, the defendant filed a timely plea in abatement on the following ground, namely: “That the act of the legislature under which this prosecution is being conducted is void and is no law, for the following reasons, to wit: Because by art. 3, see. 7, par. 14, of the constitution of said State, it is provided that ‘No bill shall become a law unless it shall receive a majority of the votes of all the members elected to each house of the General Assembly, and it shall, in every instance, so appear on the journal,’ and article 3, see. 7, par. 4, of said constitution, provides that ‘each house shall beep a journal of its proceedings, and publish it immediately after its adjournment;’ and it does not appear on the journal, so Icept and published, of either'house of said General Assembly that a bill identical with said prohibition act received a majority of the votes of all the members elected to each house of said General Assembly. On June 26th, 1907, there was introduced in the Senate of said State a certain bill to prohibit the sale in said State of any drink, which, if drunk to excess, will produce intoxication, which bill, after being altered in a number of material particulars, was passed by said Senate on July 13th, 1907, by a vote of thirty-four (34) to seven (7), tbe total number of members elected to said Senate being forty-four (44); that this bill was altered by the House of Representatives of said State in a number of material particulars, and as so altered was passed by said House on July 30tb, 1907, by a vote of one hundred tliirty-nine (139) to thirty-nine (39), the total number of members elected to said House being one hundred eighty-three (183); and that it does not appear on the journal of said Senate that said bill so altered by said House, or tlie alterations therein made by said House, received the votes of a majority of all the members elected to said Senate. While it appears on tbe journal that said Senate passed one bill on July 13, 1907, by a vote of thirty-four (34) to seven (7), and that said House passed a different bill on July 30, 1907, by a vote of one hundred thirty-nine (139) to thirty-nine (39), it does not appear on the journals that one and the same bill, identical with said prohibition act, received the votes of a majority of all the members elected to each House of said Genera! Assembly, as required by said constitution as aforesaid, and therefore said prohibition act is no law, but null, nonexistent, and void. This defendant attaches hereto as a part hereof, marked Exhibit ‘A/ tlie text of tbe bill originally introduced in the Senate, and of all the alterations made therein, the text of the bill passed by the Senate, the text of the alteration made in the bill by the House, and the text of the bill passed by the House, with appropriate reference to the pages of the journals, and a summary of the points of divergence between the bills by the Senate and by the House.”</p> <p>' The exhibit “A” referred to is as follows: “On June 26, 1907, a bill was introduced in the Senate which read thus: ‘A bill to be entitled an act to prohibit the sale, barter, or giving away to induce trade, or furnishing at public places, of any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks, which if drunk to excess will produce intoxication, and for other purposes. Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of the same: Sec. 1. That, from and. after the first day of J anuary next after the passage of this act, .it shall not be lawful for any person, within the limits of this State, to sell or barter for valuable consideration, either directly or indirectly, or give away to induce trade at any place of business, or furnish at any other public places, or manufacture for the purpose of sale, any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, and any person so offending shall be guilty of a misdemeanor, and shall be punished as prescribed in section 1039 of the Penal Code of Georgia. Sec. 2. Be it further enacted, that nothing in this act shall be so construed as to prevent the manufacture, sale, and rise of domestic wines or cider, or the sale of wines for sacramental purposes: provided, such wine or cider shall not be sold in barrooms by retail, or in places to be drunk on the premises; nor shall anything lierein contained prevent licensed druggists from selling or furnishing pure alcohol for medical, art, scientific, and mechanical purposes. See. 3. Be it further enacted, that all laws and parts of laws in conflict with this act be -and the same are hereby repealed.’ This bill was read first on June 26th, 1907, Sen. Journ. 14; second time on July 3, 1907, S. J. 104; and third time on July 13, 1907, S. J. 148; but on each of these three readings it was read precisely as originally introduced, no changes whatever being made therein. After the third reading, it was altered in the following particulars: (1) The words ‘or keep on hand at their place of business’ were inserted in the caption between the word ‘place’ and the word ‘of.’ S. J. 150. (2) The words ‘or beep on hand at their place of business’ were inserted in sec. 1, between the word ‘sale’ and the word ‘any.’ S. J. 151. (3) The words, ‘nor shall it he lawful in the limits of said State for intoxicating liquors to he sold in dispensaries, and the sale of intoxicating liquors in said State shall be prohibited to private persons and to the State, its officers and agents,’ were added to sec. 1 at the end thereof. S. J. 149. (4) See. 2 was stricken from the bill and in lieu thereof a new section two was inserted as follows: ‘Section 2. Be it further enacted, that nothing in this act shall he so construed as to prevent licensed druggists from selling or furnishing pure alcohol for medicinal purposes only, provided the same is sold or furnished for such purpose upon the presentation of a written prescription from a reputable physician actually in charge of the patient for whqni-such prescription is given. Before giving out any prescription as .contemplated in this act, it shall be the duty of such physician to have actually examined any and all persons applying for .same and to have determined from such examination that the same is necessary, and that said written prescription shall certify that said examination has been made, and that any person violating this section shall be punished as prescribed in section 1039 of the Penal Code of 1895/ S. J. 150. (5) Section 3 was stricken from the bill and .a new section three inserted, in lieu thereof, as follows: Section 3. Be it further enacted, that nothing in this act, shall prohibit the sale, by licensed druggists, of wood or denatured alcohol for art, scientific, and mechanical purposes, or grain alcohol for bacteriologists, who are actually engaged in that class of work, for scientific purposes only/ S. J. .150, 11-9. (G) A section four was added as follows: ‘Section 4. Bo it further enacted by the authority aforesaid, that all laws and parts of laws (in conflict with this, act) be and the same are hereby repealed/ S. J. 151.</p> <p>“As thus altered the bill read: ‘A bill to be entitled an act to prohibit the sale, barter, or giving away to induce trade, .or furnishing at public places, or keep (ing) on hand at their places of business, of any alcoholic (spirituous, malt, or intoxicating liquors or intoxicating bitters, or other drinks which, if drunk to excess, will produce intoxication, and for other purposes. .Be it enacted by the General Assembly of the State of Georgia, and'it is hereby enacted by authorit}'- of the same. Sec. 1. That, from and after the first day of January next after the ¡passage of this act, it shall not be lawful for any person within the limits of this State to sell or barter for valuable consideration, either directly, or indirectly, or give away to induce trade at any place of business, or furnish at any other public places, or manufacture for the purpose of sale, or keep on hand at their places of business, any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks -which if drunk to excess' will produce intoxication, and any person so offending shall be guilty of a misdemeanor and shall be punished as prescribed in section 1039 of the Penal Code of Georgia. Nor shall it be lawful..in the limits of said State for intoxicating liquors to be sold in dispensaries, and the sale of intoxicating liquors in said State shall be proliibitecl to private persons and to tbe State, its officers and agents. Sect'ion 2. Be it further enacted, that nothing in this act shall bie so construed as to prevent licensed druggists from selling or furnishing puro alcohol for medicinal purposes only, provided the saíne is sold or furnished for such purpose upon the presentation of a written prescription from a reputable physician actually in charge of the patient for whom such prescription is given. Before giving out any prescription as contemplated in this act, it shall be the duty of such physician to have actually examined any and all persons applying for same and to have determined from such examination that the same is necessary, and that said written prescription shall certify that said examination has been made, and that any person violating this section shall be punished as prescribed in section 1039 of the Penal Code of 1895. Section 3. Be it further enacted, that nothing in this act shall prohibit the sale, by licensed druggists, of wood or denatured alcohol for art, scientific, and mechanical purposes, or grain alcohol for bacteriologists, who are actually engaged in that class of work, for scientific purposes only. Section 4. Be it further enacted by the authority aforesaid, that all laws and parts of laws (in conflict with this act) be' and the same are hereby repealed/</p> <p>"As above altered, the bill was passed by the Senate on July 13, 1907, by a vote of 34 to 7, which vote appears on the journal. S. J. 148. The bill was then read in the House first time on July 17, 1907, H. J. 362; second time on July 19th, 1907, H. J. 415; and third time on July 30, 1907, H. J. 563; and on each of these three readings was read precisely as it came from the Senate, no changes whatever being made therein. After its third reading it was altered in the following particulars: (1) The caption was stricken out, and the following inserted in lieu thereof: ‘An act to prohibit the manufacture, sale, baiter, giving away to induce trade, or keeping or furnishing at public places, or keeping on hand at places of business, of any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks which, if drunk to excess, will produce intoxication; to except sales of alcohol in certain cases upon -certain conditions, and to provide certain rules of evidence in connection with the enforcement hereof; to prescribe penalties, and for other purposes/ H. J. 567-8. (2) The words ‘keep or’ were inserted in see.^ 1, between the word ‘or’ and the word ‘furnish.’ II. J. 568. (3) The words 'for the purpose of sale/ after the word 'manufacture/ in section 1, were stricken out.. Tí. J. 568-9. (4) The words, 'provided, that licensed druggists may sell and furnish pure alcohol, for medical purposes only, upon written prescription of a regular practicing physician of this State, in the manner herein prescribed, to wit: Before airy physician shall issue any such prescription, he shall make an actual examination of the person for whom the proscription is granted. The prescription shall be substantially in the following form: Georgia,..............County. T,............, a regular practicing physician under the laws of said State, do hereby prescribe for the use of........, a patient in my charge, whom I have personally examined,........of pure alcohol, and do certify in my opinion that the same is necessary in the alleviation or cure of illness from which said patient is suffering. 'Phis (date). Signed by the physician. No prescription shall be (iled [fdlod'l hereunder except under the date upon which it is dated and issued, or upon the following day. Within ten days after the same is filled by the druggist ho shall file said •prescription for record with the ordinary of. the county in which filled, who shall cause the same to be recorded in his office, and a certified copy of the same, or the original prescription, showing it has been recorded, shall be primary evidence in any court in this State. The record containing such prescription, showing it has been recorded, shall be open, to public inspection. A recording fee of five cents for each prescription so recorded shall bo paid by such druggists to the ordinary. IJpon any prosecution under this act the burden of proving the defense that the sale was pure alcohol, under prescription as herein provided for, shall be upon the defendant. Provided, further, no druggist who is also a practicing physician shall fill his own prescriptions hereunder, nor shall they he filled at any drugrstoro in which said physician is financially interested, and no prescription shall be refilled; nor shall more than one pint be furnished .on any one prescription. The delivery of the alcohol under such proscription shall be made only directly to the person for whom such prescription is issued, or to the physician, or, in case of a minor, to his parent or guardian for him, or, in case of a married woman, to her husband for her. Provided, that nothing in this act shall he so construed as to prevent wholesale druggists from selling or furnishing alcohol in wholesale quantities to regular licensed retail druggists or public charity hospitals or to medical or pharmaceutical colleges. Be it further provided, that all wholesale druggists shall be required to keep a complete record of all their sales of alcohol, which record shall at all times be open for inspection to the regular authorities of such counties or cities in which such wholesale stores are located/ were added to sec. 1, at the end thereof, H. J. 566-7. (5) Sec. 2 was stricken out and a new section two was inserted in lieu thereof, as follows; ‘Section 2. Be it further enacted by the same authority, that any .person, firm, or corporation who shall violate this act in any respect shall be guilty of a misdemeanor; any physician who shall issue a prescription hereunder, containing any false statements, shall be guilty of amisdemeanor; any druggist who shall fill any prescription for alcohol in anywise other than herein allowed, or shall fail to file a prescription filled by him hereunder with the ordinary within the time prescribed, shall be guilty of a misdemeanor; any person who shall obtain alcohol for another‘in accordance with the terms hereof, and who shall convert the same to any other use, shall be guilty of a misdemeanor’. U. J. 568, (6) In addition to the foregoing alterations, it appears by the journals that the House further altered the bill passed by the Senate by what is known on the journals as House amendment No. 18. The text of this particular alteration does not appear on the journals, but it does appear that it was at least four lines in length and contained the word ‘five in the second line and also the word ‘five in the fourth line. S. J. 123.</p> <p>‘‘As altered by the House (otherwise than by House amendment No. 18) the bill then read thus (the alterations made by the House being indicated by underscoring): ‘A bill to be entitled an act to prohibit the manufacture, sale, barter, giving away to induce trade, or beeping or furnishing at public places, or keeping on hand at places of business, of any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks, which, if drunk to excess, will produce intoxication; to except sales of alcohol in certain cases, upon certain conditions; to provide certain rules of evidence in connection with the enforcement hereof; to prescribe penalties, and for other purposes. Sec. 1. Be it enacted by the General. Assembly of the State of Georgia, and it is hereby enacted by authority of the same, that, from and after the first day of January next after the passage of tins act, it shall not be lawful for any person, within the limits of this State, to sell or barter for valuable consideration, either directly or indirectly, or'keep or furnish at any other public places, or manufacture, or keep on hand at their place of business any alcoholic, spirituous, malt, or intoxicating liquors or intoxicating bitters, or other drinks, which, if drunk to excess, will produce intoxication, and any person so offending shall be guilty of a misdemeanor, and shall be punished as prescribed in Election 1039 of the Penal Code of Georgia. Nor shall it be lawful in the limits of said State for intoxicating liquors to be sold in dispensaries, and the sale of intoxicating liquors in said State shall be prohibited to private persons and to the-State, its officers and agents. Provided, that licensed druggists may sell and furnish pure alcohol for medical purposes only, upon written prescription of a regular practicing physician of this ¡díate, in the manner herein prescribed, to wit: before any physician shall issue any such prescription he shall make an actual examination of the person for whom the prescription is granted. The prescription shall be substantially in the following form: Georgia,..............Gounty. I,.............., a regular practicing physician under the laws of said State, do hereby prescribe for the use of.............. a patient in my charge whom I haoe personally examined,........... of pure alcohol, and do certify in my opinion that the same is necessary in the alleviation or cure of illness from which said patient is suffering. This (date). (Signed by the physician). No prescription shall be filled hereunder except upon the day upon which it is dated and issued, or upon the following day. Within ten days after the same is filled by the druggist he shall file said prescription for record with the ordinary of Hie county in which filled, who shall cause the same to be recorded in his office, and a certified copy of the same or the original prescription shoioing it has been recorded shall be primary evidence in any court in this State. The record containing such prescription shall be open to public inspection. A recording fee of five cents for each prescription so recorded shall be paid by such druggist to the ordinary. Upon any prosecution under this act the burden of proving the defense that the sale was of pure alcohol, under prescription as herein provided for, shall be upon the defendant. Provided further, no druggist who is a practicing physician shall fill liis own prescription hereunder, nor shall they be filled by any drug-store in ‘which said physician is financially interested, and no prescription shall be refilled; nor shall more than one pint be furnished on any one prescription. The delivery of the alcohol -under such prescription shall be made only directly to the person for whom such prescription is issued, or to the physician, or, in case of a minor, to his parent or guardian for him, or, in case of a married -woman, to her husband for her. Provided farther, that nothing in. this act shall he so construed, as to prevent ‘wholesale druggists from selling or furnishing, alcohol in wholesale quantities to regular licensed retail druggists, or to public or charity hospitals, or to medical or pharmaceutical colleges. Be it further provided, that all wholesale, druggists shall be required to Iceep a complete record of a.ll, their sales of alcohol, which record shall at all limes be open for ■inspection to the regular authorities of such counties or cities in which such wholesale stores are located. Sec. 2. Be it further enacted by the same authority, that any person, firm, or corporation who shall violate this act, in any respect shall be guilty of a misdemeanor; any physician who ‘shall issue a prescription hereunder containing any false statement shall be guilty of a misdemeanor; any druggist who shall fill any prescription for alcohol in anywise other than herein allowed, or who shall fail to file a prescription filled by him hereunder with the ordinary within the time prescribed, shall be guilty of a misdemeanor; any person who shall obtain alcohol, for another in accordance ivith the terms hereof and who shall convert the same to any other use shall be guilty of a misdemeanor. Sec. 3. Be it further enacted by the authority aforesaid, that nothing in this act shall prohibit the sale by licensed druggists of wood or denatured alcohol for art, scientific, or mechanical purposes, or grain alcohol for bacteriologists, who are actually engaged in that class of work, for scientific purposes only. Sec. 4. Be it further enacted by the authority aforesaid, that all laws and parts of laws in conflict with this act he and the same are hereby repealed.’</p> <p>“On July 30th, 1907; the bill, as altered as above stated by the House, was passed by the House, by a vote of 139 to 39, which vote appears on the journal. H. J. 592. ' The differences between the two bills are: (1) The Senate bill made penal ‘manufacture for the purpose of sale/ leaving innocent and lawful the manufacture of any form of intoxicant for medical, social, domestic, or any other use not involving the element of gain. The House hill made it penal to ‘manufacture’ for any purpose whatever. (2) The Senate bill left it' open to manufacture for export out of the State, so that fruit and grain could have been sold to our brewers and distillers who could have operated their plants for export purposes. The House bill annihilated this. (3) The Senate bill, while making it penal to ‘furnish at any public place/ did not make it penal to ‘keep’ at such place. The House bill made it a substantive offense to ‘keep’ at any ‘public place.’ Under the former it would have been lawful to store liquor on hand in any public warehouse; under the latter such retention was made a crime. (4) The Senate bill allowed the sale of pure alcohol for medical use, annexing but one condition, namely, on written prescription by a reputable physician after examination of the patient. This done, any quantity necessary, in the judgment of the physician, could be furnished, any licensed druggist coxild fill the proscription, any person whomsoever could convey the medicament to the sufferer, and it was not required that the name of the sick person, the name of his or her physician, the name of his or her apothecary, and. all the details of his or her prescription should be spread upon the public records. The House bill made the law do the prescribing, and not the attending physician. Not more than one pint could be furnished on any one prescription. If the vicinage had but one drugstore and the attending physician was owner of, or financially interested in that, then the prescription could not be filled at home but must bo sent abroad. When the prescription was filled, the medicament could not be delivered to any one indifferently for transmission to the sufferer. A husband might receive it for his wife, or a parent or guardian for a minor, but in all other cases ‘The delivery of alcohol under such prescription shall be made only directly to the person for whom such prescription is issued, or to the physician.’ A son could not receive it for his father, or a wife for her husband, or a parent for his adult child. In short, save as to married women and minors the druggist or the doctor must convey it to the sick person, or else the sick person himself or herself must go for it or do without. When the prescription had been filled, all the details thereof were to be exxtered on the public record ‘open to public inspection/ (5) The House bill created fourteen (14) new offenses not known to the Senate bill, the same being as follows: to manufacture for any purpose other than for sale; to keep at any .public place; to fill any prescription except upon the day of its issual [issuance] or the following day; to fail to file the prescription with the ordinary; for the ordinary to fail to record the same; for the druggist to fail to pay the ordinary his recording fee; for the physician, if also a druggist, to fill his own prescription; to fill the prescription at any drug-store in which the prescrihing physician is financially interested; to refill any prescription; to furnish more than one pint on any' one prescription; to deliver the medicament to any one hut the sick person or the physician, the case of married women and minors only excepted; for wholesale druggists to sell alcohol to any hospital or private sanitariums; or to fail to keep a complete record of their sales; or to fail to keep such record open at all times to the inspection of the local authorities. (6) The Senate bill made an alleged illegal sale of alcohol triable as in other criminal cases; the House hill made it encumbent upon defendant to prove his innocence. As thus altered, the bill was taken up in the Senate on August 1, 1907, for a consideration of the same, and on pages 317-323 of the journal will be found all the proceedings had in the Senate thereon; and it does not appear that the bill, as altered by the House, or the alterations therein made by the House, received the votes of a majority of all the members elected to the Senate.”</p> <p>Was the plea in abatement properly stricken on the ground that it was insufficient in law ?</p>

<p>Ejectment. Before Judge Charlton. Chatham superior court.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court.</p>

Appeal. Before Judge Brand. Clarke superior court. Hull, as administrator of M. G. Watkins, deceased, having advertised in the official gazette of Clarke county that it was his intention, as administrator as aforesaid, to apply to the court of ordinary at the January term, 1908, for leave to sell certain real estate which, as lie claimed, belonged to the estate of the said Watkins, Lizzie Watkins, in her own behalf and as agent of her sisters, Charity Watkins, Sarah Watkins,…

<p>Action for damages. Before Judge Brand. Banks superior court.</p>

<p>Partition. Before Judg-o Fireman. Troup superior court.</p>

<p>Indictment for 'murder. Before Judge Morris. Forsyth, superior court.</p>

<p>Indictment for murder. Before Judge Charlton. Chatham superior court.</p>

<p>Indictment for murder. Before Judge Edwards. Haralson - superior court.</p>

<p>Mandamus. Before Judge Meadow. Richmond superior court.</p> <p>William F. Eve, judge of the city court of Richmond county, instituted suit for a writ of mandamus against Walter A. Clark, as treasurer, to compel the pajunent of the sum of $416.66, alleged to be due as his salary for the month of December, 1909. The claim was based on the act'approved August 15, 1905 (Acts 1905, p. 100), as amended by the act approved July 31, 1906 (Acts 1906, p. 58), it being alleged that the acts referred to provided for the payment of a salary amounting to $5,000 annually, payable in monthly installments, out of the treasury of the county. The defendant filed a plea in bar, and also a demurrer, in which the acts of the legislature above mentioned were attacked as being void, on the ground that they were violative of the constitution in several particulars fully set forth. The defendant also filed .an'answer, wherein certain of the allegations of the petition were admitted and others denied; and set up further that there was no legal duty upon the treasurer to pay the demand referred to in the plaintiff’s petition, because under the several acts defining the duties of the treasurer he was required to pay only such demands as were audited and ordered paid by the board of county commissioners, and that the plaintiffs demand had not been approved by the county commissioners and ordered paid. Later the defendant amended his answer, alleging that during his tenure of office, which commenced in 1897, the plaintiff had been commissioner of roads and revenues of the county, and that it had been customary for the plaintiff to present warrants issued by the county commissioners for the payment of his salary, and that he had never been paid any salary except upon warrant. In the amendment further reasons were urged as showing the unconstitutionality of the acts of the legislature relied upon by plaintiff to establish the amount of his salary. On the trial the judge passed an order making the mandamus absolute, and required the defendant to pay over the sum demanded. The defendant excepted.</p>

Mandamus. Before Judge Rawlings. Richmond superior court. Henry C. Hammond, being judge of the superior' courts of the Augusta circuit, instituted suit for a writ of mandamus against Walter A. Clark, as treasurer of Richmond county, to compel the payment of $166.66, alleged to be due for part of his salary as judge for the month of December, 1909.

<p>1. A statute declares that all lift; or lire insurance policies issued upon the lives of property of parsons within the State, which contain any reference to the application for insurance, or the constitution, by-laws, or other rules of the company, either as forming- part of the policy or contract between the parties thereto, or having any bearing on said contract, shall contain or have attached to said policy a correct copy of said application signed by the applicant, and of the by-laws referred to; and unless so attached and accompanying- the policy, no shell constitution or by-laws shall be received in evidence cither as part of the policy or as an independent contract in any controversy between the parties to or interested in the said policy; “nor shall such application or by-laws he considered a part of the policy or contract between the parties.” Held, that a failure to attach an application for life insurance to the policy, which referred to it, prevented such application from being treated as a part of the contract or introduced in evidence as such, or to show that certain statements were contracted or warranted to he true; but it did not prevent the defendant from pleading and proving that the insured had made false and fraudulent statements as to his age and health, and liad thus fraudulently induced the insurer to issue the policy, and that it was therefore void, not as matter of contract, but because of fraudulent procurement.</p> <p>2. Suit was brought on a policy of life insurance containing the following provision: “If the age of the insured is incorrectly stated, the amount payable under this policy shall be the insurance which the actual premiums would have purchased at the true age of the insured.” The age stated in the policy was 55 years. The defendant pleaded fraud in the procurement of the policy, alleging that in fact the insured was more than 70 years of age, and uninsurable. Held, that the rate book of the company was admissible for the purpose of sh,owing that there was no rate on a person seventy years of age, and that the misrepresentation was material.</p> <p>3. Under the issue of fraud in the procurement of the policy, it was competent to show false representations by the insured as to his age and health, and what they were in fact; and admissions .made by him at other times were relevant in that connection.</p> <p>4. The tax digest of the county of the residence of the insured was admissible in evidence to show that while his name appeared thereon, he returned no poll tax, as bearing on his age.</p> <p>5. So also was the book of registered voters, containing the name of the insured and the statement of his age.</p> <p>6. It is not correct practice to attach to a plea as exhibits original documents which will be relied on as evidence. Copies, not original papers, should be used as exhibits to pleadings. Where originals are so attached, on proper motion made in due time the court should require the originals to be detached and copies substituted. But where no such motion was made, and just before the jury retired the court was asked to have the exhibits detached from the answer of the defendant and not to allow them to be taken out by the jury, and not to allow the jury to see them, a refusal of such motion will not necessitate a new trial, where the court in the presence of the jury had rejected such papers from evidence, and ruled them inadmissible as such.</p> <p>7. When considered in the light of the evidence and the entire charge, the charges complained of do not require a new trial. The evidence was sufficient to authorize the verdict.</p>

<p>Divorce and alimony. Before Judge Charlton. Chatham superior court.</p>

<p>Complaint. Before Judge Morris. Cherokee superior court.</p>

<p>Complaint for land. Before Judge Meadow. Taliaferro superior court.</p>

<p>Trover. Before Judge Wright. Floyd superior court.</p>

<p>Claim. Before Judge Reagan. Pike superior court.</p>

<p>Action for breach of contract. Before Judge Meadow. Greene superior court.</p>

<p>Where a married woman died after having- instituted her suit to recover damages for pain and suffering resulting from personal injuries, and one duly appointed as administrator of her estate was made a party to the ease, and the cause was ordered to proceed in his name as plaintiff, the case should not have been nonsuited on the trial, where the evidence made a prima facie case against the defendant, on the ground that the administrator was not a proper party to the case and that upon the death of the original plaintiff there was a “right of survivorship” in the husband.</p>

<p>Constitutional question; from Court of Appeals.</p>

<p>Complaint. Before Judge Hammond. Richmond superior court.</p> <p>In May, 1906, tho Hardwood Lumber Company, of this State, contracted to sell to Adam & Steinhrugge, of New Orleans, Louisiana, 75,000 feet of red gum lumber for July and August shipment.. The correspondence between the parties showed that the lumber was bought for the purpose of resale, references being made in the letters of the purchasers to their customers. The first letter written by them, which was introduced in evidence, said: “If you would care to make us a price O. I. F. Rotterdam, and guarantee that our customers will get exactly what the B/L calls for, we believe that we could do some business with you.” The lumber was not shipped at the time agreed upon. In October thereafter the plaintiffs began writing a series of letters to the defendants, urging the latter to deliver the lumber. The sellers replied by making various excuses, such as that the logs had to be gotten out of the swamp, that it had been raining so as to make it impossible to do so, and that the railroad did not furnish enough cars; and promising delivery at an early time. This correspondence of urgency on one side and excuses on the other continued for a number of months. On October 11, 1906, the purchasers wrote: “We sold this stock according to your contract with us ; and if you don’t deliver it, the customer that we sold it to will certainly hold us up for indemnity so much per M. feet, iu which event'we will put the matter up to you. Please let us know if you know of some place where you could buy this stock?” Iu its reply the seller said: “We know of no place where we can place this order. If we could find some one to take it, we do not think they could get it out any quicker than we will. We will make delivery just as soon as possible.” On December 10, the purchasers wrote: • “If you can not give us any definite information in regard to delivery of this stock, we must go out and buy it somewhere else; and if there is any difference in price, we would expect you to help us out.” On January 30, 1907, they again wrote: “Wo really do not know how we can make our customers wait any longer; they simpty must have the stock, and they will’not. accept the excuse you give us, and threaten to buy the stock on the open market, charging us up with the difference.” On February 21, 1907 the purchaser wrote: “We wish to advise you that inasmuch as you have made no efforts, apparently, to get this stock for us, this letter will servo to advise jura. that, if you will not have delivered this stock by the first of May, we will buy what is due on the open market, or allow you the privilege of doing it.” The sellers replied: “We have yours of the 21st, with reference to extending the time of delivery of the red gum sold you to the first of May. We will use our best endeavors to got the lumber ready for shipment by that time. We are anxious to fill your order, and regret that conditions have been such that we have been unable to do it. We intend to do it, and if you just have patience you will get the lumber all right.” The purchasers continued to write letters urging the delivery of the lumber until November, 1907. On October 2 L they informed the seller that, if the latter did not deliver the lumber immediately, the purchasers would at once bring suit for the breach of contract. They added: “We have secured at different times gum lumber at considerably higher prices than we paid you to deliver our contracts that we made based on getting the stock from yon.” The seller finally wrote, November 9, 1907, saying: “It is useless for us to promise to make delivery of this stock within the next thirty days. . . We have always intended to deliver this stock as we told you before; but if you think that jura. can get your money quicker by bringing suit against us, it is a matter for you to decide. We have told you before we regretted this delay, but it is impossible to prevent it.”</p> <p>The purchasers brought suit, alleging that they had been compelled to buy red gum lumber -to fill their contracts at a higher price than that at which they purchased, and had incurred the expense of transportation, which the seller agreed to pay, making an aggregate difference of $441.78. They recovered a verdict for the full amount. A motion for a new trial was overruled, and the defendant excepted.</p>

Equitable petition. Before Judge Seabrook. Liberty superior court. W. T. Brewer, as tax-collector of Libert)- county, became indebted to it on account of taxes. In order to raise money to pay the amount thus' due, he made a note to N. McQueen.

Intervention. Before Judge Eoute, of the city court of Carters-ville. Bartow superior court. The firm of Taff & Conyers were adjudged involuntary bankrupts, and J. C. Taff, a member of the firm, applied in the United States court for the exemption of certain property as a homestead.

<p>Removal from office. Before Judge Edwards. Paulding superior court.</p>

<p>Action for breach of contract. Before Judge Fite. Bartow superior court.</p>

Action for damages. Before Judge Lewis. Baldwin superior court. .It was alleged in the petition, that the plaintiff was employed in the mill of the defendant as a mill band, and was subject to orders of the superintendent; that he was directed bjx the latter to sharpen certain knives upon an emery wheel operated by steam power, in connection with which there were mechanical devices of .a nature unknown to petitioner; that while engaged in performing this'work a piece of…

<p>Eviction. Before Judge Gilbert. Muscogee superior court.</p>

<p>Action upon contract. Before Judge Lewis. Greene superior court.</p>

<p>Action upon insurance polic.y. Before Judge Charlton. Chatham superior court.</p>

<p>Action for damages. Before Judge Wright. Floyd superior court.</p>

<p>1. When duties are imposed on a judge of a superior court as an officer, another judge of the superior court has no power to issue a mandamus to compel the performance of -such duties.</p> <p>(a) The duty devolving upon the. judge of a superior court under the Political Code, §§ 50, 51, providing for the appointment of a board of county registrars, is an official act.</p> <p>2. Where the judge of another circuit to whom such application was presented refused a mandamus nisi against the judge named in the petition, and granted a restraining order and mandamus nisi against the registrars, it was proper for the judge granting the order and mandamus nisi to subsequently revoke the same and refuse to take further action on such application, for the reason that the same should be presented to the judge referred to in the application, who had jurisdiction to ael thereon and who was not disqualified from so doing.</p> <p>(a) The allegation that a judge is active in aiding one faction of a political party in a county to gain control of the party and the politics of the county, in OTder to further his political purposes and interests and those of a faction with which he is in sympathy, does not disqualify him from passing' on an application to enjoin the registrars from filing-a registration list alleged to have been prepared by them with the names of certain persons opposing such faction illegally left off for the purpose of gaining such control, and to compel them by mandamus to place such names on the registration list.</p> <p>(b) While the petition and the amendment thereto aver political interest and activity on the part of the judge in whose jurisdiction the ease falls, and an attempt and conspiracy on his part with others to dominate and control the politics of the county in lii.s own interest and that of others, the allegations made do not show that he. has any pecuniary interest in the result of the litigation, nor do they state any other facts sufficient to render him disqualified from presiding in the ease.</p>

Petition for injunction. Before Judge Hammond. Richmond superior court. Irvin Alexander and Hugh Alexander instituted suit to enjoin the City Council of Augusta and its agents, J. J. Twiggs and J. D. McGee, from the commission of alleged acts of trespass in taking and removing certain trees and earth from the land of plaintiffs, and prayed for other relief.

<p>1. Where land is jointly owned by two persons, and one obtains a deed from the other of his interest by means of an intentionally false and fraudulent promise to sell the land at its true value and pay off an incumbrance and account for the balance, or, failing to find a purchaser, he will procure a new loan to discharge the present incumbrance, and, having thus obtained the title, he retains, uses, and claims the property as absolutely his own. the whole transaction by which ownership is obtained is such a fraud as will entitle the grantor to have the deed cancelled.</p> <p>2. In such a ease equity affords relief, not because of the mere breach of the verbal promise, but because of the fraud of the grantee in procuring an absolute deed to be made' to him upon his false and fraudulent representation and promise that he will use the title for the grantor’s benefit.</p> <p>3. While it is the duty of a judge to state the contentions of the litigants, an instruction that the jury will find the contentions of the parties in the petition and answer, which are so clearly set out and so'frequently referred to by counsel that the court does not deem it necessary to again state them,- sufficiently meets the requirement, unless the special facts of the ease demand a more formal summary to prevent possible misapprehension.</p> <p>4. In view of its context and the general charge, an instruction that the evidence “should be stronger to show the plaintiff is correct in her contentions than it is going to show that the defendant’s contentions are correct; but if it be but slightly so, that would be sufficient,” though inaccurate, is not so misleading as to require a new trial.</p> <p>5. In a ease where documentary evidence is submitted, an instruction that “you take the law from the court and the facts from the witnesses, and apply the one to the other and make your verdict,” is technically inaccurate. But from the general structure of the charge and the scope of the evidence it is apparent in this case that the jury could not have been misled by the inaccurate expression, as excluding the documentary evidence from their consideration.</p> <p><5. There was sufficient evidence to support the verdict, which is approved by the trial judge. No substantial error of law was committed requiring a new trial.</p>

Petition for direction. Before Judge Hammond. Richmond superior court. April 19, 1909. This case arises on a petition filed by the executor for direction as to the construction to be placed upon the will of his testator. In an agreed statement of facts, used upon the hearing before the judge to whom the case was submitted, the following facts are set forth: “1. The testator’s will was drawn by himself. 2.

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

<p>Petition for mandamus. Before Judge Felton. Bibb superior court.</p>

<p>Action for damages. Before Judge Wright. Floyd superior court.</p>

<p>Complaint for land. Before Judge Reagan. Butts superior court.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. This case was of like kind to that reported in 118 Ga. 486; the dispute being as to the legal existence of any continuation of Yonge street farther south than Decatur street, crossing the railroad tracks of the plaintiff and extending to the city cemetery.

Petition for injunction. Before Judge Parker. Glynn superior court. The owners-of “Retreat Plantation,” a tract of land on the island of Saint Simons in the county of Glynn, carved out of it a smaller tract, which was laid off in separate lots, streets and alleys, and called “King City.” A map of it was executed on October 30, 1886, filed for record in the office of the clerk of the superior court on November 17, 1891, and recorded March 24, 1893.