Volume 135 — Georgia Reports

<p>Complaint. Before Judge Hammond. Richmond superior court. July 22, 1909.</p>

Equitable petition. Before Judge Charlton. Chatham superior court. April 3, 1909.

<p>Damages. Before Judge Charlton. Chatham superior court. July 17, 1909. (</p>

Claim. Before Judge Seabrook. Liberty superior court. February 19, 1909. J. M. Caswell, as administrator of the estate of Isaac Futch, deceased, obtained an order to sell personal property of the estate, and thereupon undertook to sell certain cattle as the property of such estate, to which cattle Mary Moten interposed a claim, alleging that the cattle belonged to her.

<p>Exceptions to auditor’s report. Before Judge Meadow. Gwinnett superior court. July 6, 1909.</p>

<p>Damages. Before Judge Fite. Whitfield superior court. July 12, 1909.</p>

<p>Equitable petition. Before Judge Wright. Eloyd superior, court. January 14, 1909.</p>

<p>1. Where a widow of an intestate elects to take dower, she has no further interest in the realty of her deceased husband; but she is not thereby prevented from claiming a child’s part in the personalty of the estate.</p> <p>2. That a widow obtains a year’s support to be set apart to her does not prevent her claiming a child’s part in the personal property not assigned as a part of such year’s support.</p>

<p>Trover. Before Judge Edwards. Paulding ^superior court. May 25, 1909.</p>

<p>Complaint for land. Before Judge Edwards. Haralson superior court. July 7, 1909.</p>

<p>Probate of will. Before Judge Ereeman. Meriwether sujjerior. court. May 7, 1909.</p>

<p>Trover. Before Judge Ereeman. Troup superior court. May 3, 1909.</p>

<p>Damages. Before Judge Reagan. I-Ienvy superior court. January 13, 1909.</p>

<p>Action "for damages. Before Judge Reagan. Pike superior court. January 30, 1909.</p>

<p>Complaint. Before Judge Reagan. Butts superior court. February 18, 1909.</p>

<p>• Illegality of execution. Before Judge Reagan. Butts superior court. February 18, 1909.</p>

<p>Action for damages. Before Judge Reagan. Butts superior court. April 22, 1909.</p>

<p>Petition for receiver. Before Judge Reagan. Butts superior court. December 20, 1909.</p>

<p>The evidence amply warranted the verdict, and did not authorize a charge on the subject of voluntary manslaughter.</p>

<p>Ejectment. Before Judge Hammond. .Richmond superior court. June 26, 1909.</p>

<p>Ejectment. Before Judge Hammond. Richmond superior-court. Juno 26, 1909.</p>

<p>Complaint. Before Judge Felton. Houston superior court. May 7, 1909.</p>

<p>Complaint. Before Judge Freeman. Meriwether superior court. August 17, 1909.</p>

The Court of Appeals certified to the Supreme Court the following questions: 1. Does storage rule 9 of the railroad commission of Georgia, 'adopted under authority of the act of 1905 (Acts 1905, p. 120), commonly known as the Steed act, apply to cars intended to be used for the shipment of freight from a point in this State to a destination in another State; i. e., is the rule applicable to interstate transactions?

<p>The court committed no error in overruling the demurrer to the petition, and in directing a verdict in favor of the defendant.</p>

<p>Action for breach of contract. Before Judge Wright. Floyd, superior court. August 2, 1909.</p>

<p>Claim. Before Judge' Whipple. Wilcox superior court. May 8, 1909.</p>

Equitable interventions. Before Judge Seabrook. Ware superior court. May 10, 1909. On November 23, 1907, the Bank of Wayeross made an assignment for tbe benefit of its creditors. Later receivers were appointed. Certain persons intervened, alleging in brief as follows: The bank had long had an authorized capital stock of $50,000, of which' $25,000 had been issued and fully paid up. On July 11, 1907, the capital stock was increased from $50,000 to $150,000.

<p>1. A road may become a public road by prescription. Evidence that the public has used the road continuously for 20 years, and that the proper county authorities during that time have recognized it as a public road by having the same worked, will be sufficient to authorize an inference that such road is a public road.</p> <p>(a.) In determining whether a road used by the public for the period of 20 years has been accepted by the authorities of the county, eyidence that a public-road overseer had caused it to be worked, and that, after complaint of a citizen to the ordinary of the county' to take charge of the road, it had been worked by the road hands, is relevant and admissible.</p> <p>2. Civil Code, § 2321, which provides that a railroad company shall be liable for any damage done to persons by the running of the ears, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all eases being against the company, has no application to a servant of the company, who is sued with the company as a joint tort-feasor. Where the engineer is jointly sued with the railroad company, it is error to charge • that upon proof that the plaintiff has sustained his allegations that he was injured by the running of the cars of the railroad company, then the law would raise a presumption against the company and the defendant engineer that they were negligent, and that the burden would be upon them to show either that they were not negligent,' or that the plaintiff by'the exercise of ordinary care could have avoided the consequences to himself .of their neg-ligence.</p> <p>3. A traveler upon a public highway, in approaching a railroad crossing, is bound to exercise ordinary care and diligence,for his own safety; yet, though he may not observe that amount of care and • diligence which would be exercised under like circumstances by an ordinarily prudent person, he is not necessarily precluded from recovering for injuries to his person, received on the crossing, if, after it' is apparent that the engineer of the company is disobeying the provisions of section 2222 of the Civil Code, he then exercises ordinary care and diligence in endeavoring to escape the consequences of the company’s negligence.</p> <p>4. Civil Code, §^2224, denounces the failure of the engineer to comply with the blow-post law to be a misdemeanor. The violation of a penal statute proximately causing an injury is negligence per se, and tlie court may so instruct the jury.</p> <p>5. It not being alleged that the community where th.e injury happened was populous, and there being no allegation of negligence as to the running of the train through a thickly populated community, testimony that the engineer had knowledge that t-he place where the plaintiff was injured was in a populous community is irrelevant.</p> <p>6. The other charges complained of were not open to the criticisms made against them.</p>

<p>Money rule. Before Judge Freeman. Meriwether superior court. June 22, 1909.</p>

<p>Probate of will. Before Judge Reagan. Henry superior court. January '2, 1909.</p>

<p>Damages. Before Judge Reagan. Monroe superior court. March 22, 1909.</p>

<p>Complaint. Before Judge Reagan. Fayette superior court. June 22, 1909.</p>

Action for damages. Before Judge Beagan. Henry, superior court. June 28, 1909. H. M. Tollerson brought suit against the Southern Bailway Company, and alleged in brief as follows: Through his agent he had delivered a car-load of live stock to the defendant at Shelbyville, Kentucky, to be shipped to McDonough, Georgia, on December IS, 1905.

<p>Indictment for murder. Before Judge Seabrook. Liberty superior court. April 6, 1910.</p>

<p>Complaint. Before Judge Charlton. Chatham superior court. June 7, July 6, 1909.,</p>

Equitable petition. Before Judge Reagan. Butts superior court. ’ August 16, 1909.

<p>Ejectment. Before Judge Parker. Glynn superior court. May 21, July 27, 1909.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. May 15, 1909.</p>

<p>1. The court committed no error in its construction of the legal effect of the writing attached to the petition as exhibit A, and in holding that the evidence authorized a sale by the plaintiff of the residence lot referred to in such writing.</p> <p>2. Under the facts shown by the record, the court did not err in ordering that such writing be cancelled.</p> <p>3. The court committed error in granting an injunction against the plaintiff, restricting her right to build on her residence lot referred to in the petition.</p>

<p>Claim. Before Judge Gilbert. Muscogee superior court. May 30, 1909.</p>

<p>Probate of will. Before Judge Mitchell. Thomas superior court. June 26, 1909.</p>

<p>Claim. Before Judge Martin. Montgomery superior court. August 14, 1909.</p>

<p>Complaint. Before Judge Bawlings. Screven superior court. May 11, 1909.</p>

<p>1. There was sufficient evidence to authorize the finding- by the jury in favor of tiie plaintiff.</p> <p>2. This court will not pass upon the question of the admissibilitj1- of evidence where the ground in the motion for a new trial complaining- of the admission of such evidence fails to show that the grounds for the exclusion'of the evidence were urged before the trial judge when the evidence was offered.</p>

<p>Action for damages. Before Judge Brand. Oconee superior court. July 19, 1909.</p>

<p>Action for damages. Before Judge Fite. Murray superior court. March 1909.</p>

<p>. Claim. Before Judge Edwards. Polk superior court. May 10, 1909.</p>

<p>Damages. Before-Judge Freeman. Troup superior court. April 3, 1909.</p>

<p>Complaint. Before Judge Freeman. Carroll superior court. April 6, 1909.</p>

<p>Equitable petition. Before Judge Lewis. Greene superior court. January 5, 1909.</p>

<p>Equitable petition. Before Judge Parker. Charlton superior court. August 21, 1909.</p>

<p>Complaint. Before Judge Gilbert. Muscogee superior court. March 16, 1909.</p>

Action upon insurance policy. Before Judge Pendleton. Fulton superior court. January 25, 1909.' Suit was brought on April 15, 1907, on a fire-insurance policy on account of the destruction, by fire on October 10, 1906, of the property on which the insurance was issued.

Action for damages. Before Judge Pendleton. Eulton superior court. July 21, 1909. W. J. Harbin brought suit against the Southern Railway Company and James Michael, to recover damages for the homicide of a son, James Harbin, who was struck and killed by a locomotive of the defendant company which was being operated on' its tracks by the codefendant, James Michael, who was an engineer in the employment of the company.

<p>Equitable petition. Before Judge Cbarlton. Chatham superior court. January 7, 1909.</p>

Complaint. Before Judge Felton. Bibb superior court. April 29, 1909. 'On March 2, 1907, Gustavus T). Melton and his wife, Otis Irene Melton, entered into the following contract: “State of Georgia, County of Bibb. This agreement, made and entered into this the -second day of March, 1907, between Gustavus T>.

<p>Action on insurance policy. Before Judge Brand. Clarice superior court. April 20, 1909</p>

<p>Complaint. Before Judge Fite. Bartow superior court. May 8, 1909.</p>

<p>Damages. Before Judge Ellis. Pulton superior court. April 10, 1909.</p>

<p>Action for mopey had and received. Before Judge Seabrook. Washington superior court. March 3, 1909.</p>

<p>Action for damages. Before Judge Bawlings. Tattnall superior court. April 6, 1909.</p>

<p>A compress company, in possession of a certain number of bales of cotton belonging to another, issued to the latter a receipt acknowledging receipt of the cotton “to be compressed and loaded for Central of Georgia. Subject to all the conditions of bill of lading of above-named carrier [a railway company! which may be issued in exchange for this receipt.” “The form of the bill of lading alluded to in such ' receipt was well known” to the party receiving the receipt. The owner of the cotton obtained'from the railway company in exchange for the receipt a bill of lading, one of the conditions of which was, “No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto, by . . fire.” Eor -compressing and loading the cotton the railway company was to pay the compress company. Before the cotton was compressed and loaded, it was destroyed by fire while in possession of the railway company through its agent, the compress company. • The freight was prepaid by the owner of the cotton. The railway company paid the owner the valué of the cotton destroyed, and, to recover the amount thus paid, sued the compress company on a contract of the latter to indemnify the former against any liability to the owner of cotton lost or damaged after it was received by the compress company for compressing and before it was loaded by the compress company for shipment. Held:</p> <p>1. There was no express contract between the owner of the cotton and the'railway company respecting the condition in the bill of lading wherein the latter was to be exempted from liability on account of the loss of the cotton by fire, and such condition was not binding on the owner.</p> <p>2. Proof of loss of the cotton by fire and payment to the owner by the railway company for the value of the cotton made a prima facie case of liability of the compress company to the railway company on the indemnity contract between them.</p>

<p>Whenever it appears that the clerk of a trial court has failed to transmit to the Supreme Court, within the time prescribed by law, a bill of exceptions and transcript, and that the plaintiff in error or his attorney “has been the cause of the delay, . . by consent, direction, or procurement of any kind,” the writ of error will be dismissed., Civil Code, §§ 5571, 5572.</p>

<p>Affidavit to eject. Before Judge Morris. Gilmer superior court. May 21, 1009.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. April 8, 1909.</p>

The Court of Appeals certified to the Supreme Court the following questions: “1.

<p>Rule. Before Judge Wright. Floyd superior court. April 24, 1909.</p>

<p>Ejectment.' Before Judge Freeman. Carroll superior court.' July 10, 1909.</p>

<p>Action for breach of contract. Before Judge Hammond. Richmond superior court. June 24, 1909.</p>

Equitable petition. Before Judge Felton. Bibb superior court. February 12, 1909.

<p>Intervention. Before Judge KLimsey. Babun superior court. May 3, 1909.</p>

Complaint. Before Judge Morris. Forsyth, superior court-August 25, 1909.

<p>Complaint. Before Judge Ivimsey. Hall superior court. May 3, 1909.</p>

<p>Action for damages. Before Judge Pendleton. Eulton superior court. April 7, 1909.</p>

<p>1. A child formally adopted under the Civil Code, § 2497, by a person who was the head of a family became a beneficiary of an existing homestead estate which had been set apart to the adopter under the constitution of 1868.</p> <p>2. Where, after a child in the manner just indicated had become a beneficiary of a homestead estate, the head of the family died, and the homestead estate terminated as .to the other beneficiaries, but not as to this child, she was entitled to possession of the homestead estate.</p> <p>3. In view of the entire petition, as amended, the objections raised by demurrer to certain paragraphs of the petition were without merit.</p> <p>4. There was no error in overruling t he demurrer.</p>

<p>Attachment. Before Judge Edwards. Floyd superior court. March 30, 1909.</p>

<p>Money rule. Before Judge Lewis. Morgan superior court. March term 1909.</p>

<p>Action for damages. Before Judge Meadow. Gwinnett superior court. May 26, 1909.</p>

<p>Equitable petition. Before Judge Meadow. Greene superior court. June 22, 1909.</p>

<p>Action for breach of contract. Before Judge TCimsey. Hall superior court. June 8, 1909.</p>

<p>Equitable petition. Before. Judge Morris. Cherokee superior court.- February 26, 1909.</p>

<p>Exceptions to auditor’s report. Before Judge Beagan. Butts superior court. July 3, 1909.</p>

<p>1. The identity of a named person with a certain other person, shown by a transcript from the record of the penitentiary to have served a sentence there, being a material question in the ease, the transcript of a record showing the conviction of the former of the offense of which the latter, according to the record of the penitentiary, had been convicted, was admissible as a circumstance to be considered by the jury in passing upon the question of the identity of the two persons. But the evidence introduced on the trial of the criminal case should have been excluded, and it was error for the court to admit the same over proper objections.</p> <p>2. The court did not err in admitting a transcript from the books of the old State penitentiary, certified by the chairman of the prison commission and the clerk of said commission under seal.</p> <p>3. Testimony of an admission by a person that he had been convicted of a certain crime was competent, such conviction tending to throw light upon the question of the identity of the person, and this question being one for determination by the jury passing upon the probative value of such testimony.</p> <p>4. Immaterial evidence which does not illustrate any question in the case should be excluded.</p> <p>5. In a suit by certain persons claiming to be the next of kin of a testator, who, after providing that a person named' therein and declared in the will to be the wife of the testator should have a life-estate in certain realty, devised the remainder interest in that realty to his next of kin, it was not competent to introduce in evidence a certified transcript from the record of the court of ordinary, of proceedings by the person named in the will as his wife, to have set apart to her a year’s support out of the estate of the testator, and of the judgment allowing and setting apart. a year’s support in favor of the applicant, to illustrate the question whether or not the applicant was actually the wife of the testator.</p> <p>6. The requests to charge, which were'refused', so far as they were pertinent and legal, were covered by the general charge.</p> <p>7. No material error except as dealt' with above is made to appear in the main bill of exceptions or in the cross-bill.</p>

<p>Complaint for land. Before Judge Hodges. Bibb superior court- February 17, 1909.</p>

<p>Partition. Before Judge Parker. Appling superior court. March 13, 1909.</p>

<p>Motion to set aside judgment. Before Judge Hammond. Richmond superior court. December 31, 1908.</p>

<p>Motion to set aside- judgment. Before Judge Kimsey. Hall superior court. July 21, 1909.</p>

<p>Action on bond. Before Judge Pendleton. Fulton superior court. April 24, 1909.</p>

<p>Equitable petition. Before Judge Ellis. Fulton superior court. May 29, 1909.</p>

<p>1. Although it was an issue as to whether or not a certain strip of land was a part of the right of way of a railroad company prior to 1884, or was a public road and being worked by the county authorities as such, the court did not err in excluding the following evidence offered1 by the plaintiff, who insisted that the strip of land was a public road: “Prior to 1884 I saw work being done on that road I"the road claimed by plaintiff in his pleadings to have been a public road prior to 1884]. It was being done by people in the garb of convicts, some of them with stripes on, working there with pick and, shovel, and' men with guns on their shoulders.” The mere fact that the people who were seen working on the strip of land were in the garb of convicts was not evidence of the fact that it was a public road and that the work was being done by the public authorities of the county, inasmuch, as convicts at that date were leased to private parties and it would have been competent, under the law, for the lessees to have employed the convicts in the labor at which they were seen upon private property.</p> <p>2. The court did not err in admitting in evidence a map of the City of Atlanta, over the objection that “said map was not one made by the City of Atlanta but by private engineers,” it appearing that the map was made by the engineers under contract with the city, that it was correct, and that the city had accepted it as the city map.</p> <p>3. The width of the light of way of the railroad company being in issue, it was competent for the railroad company to prove that a person who had formerly owned the land of which the strip in question was a part, and who would have been the owner of the strip also unless the same had been acquired by the railroad company as a part of its right of way, said, while in possession of the remainder of the land, that the right of way extended a distance of -50 feet on each side of the center of the railroad, which would have embraced the strip of land in controversy.</p> <p>4. The court did not err in defining possession which might be the foundation of prescription, in the following charge to the jury: “If there were tracks on the adjoining land and trains of cars were run on them, and these things, when taken in connection with the acts done on the 20-foot strip, would indicate that a railroad was being conducted there and that the railroad was claiming this 20-foot strip as a part of its right o'f way, and this was so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another, this would be possession.”</p> <p>5. It was not error for the court to charge: “The deed from Samuel Thomas and Thomas S.Ryan to the defendant, dated October 29, 1905, conveys to the defendant the right of way of said railroad between Whitehall street and Simpson street, and that would give color of title to a right of way 100 feet wide, 50 feet on each side of the center of its main line, provided you believe from the evidence that the Monroe Railroad and Banking Company laid out its right of way 100 feet wide, 50 feet on each side of its main line, and that it and its successors maintained the right of way between Whitehall street and Shelton street that width by keeping it clear of trees and undergrowth up to the time said deed was executed.” Harriss v. Howard, 126 Ga. 325 (55 S. E. 59).</p> <p>6. The coiirt did not err in refusing a request to give in charge the following: “Any uninterrupted use by the public generally of lands as a roadway for a period of time extending through 20 years, accompanied by acceptance by public authorities, gives a prescriptive right to the public to such road or highway.” This charge was ambiguous, being susceptible of two constructions, one laying down the principle that the “acceptance” by the public authorities should be coextensive with the user by the public and continuous throughout the period of 20 years; -while under another construction of the request to charge, uninterrupted user by the public for 20 years and acceptance by the public authorities at any time would be sufficient. The court might have legitimately construed the request in either of the two ways mentioned. His charge as given sufficiently covered the first of these constructions, and a charge upon the principle involved in the other construction was not distinctly invoked by the request.</p> <p>7. The other requests to charge, so far as they were legal and pertinent,, were covered by the general charge. Ho error is shown in the other rulings of the court complained of.</p>

<p>Action upon _ contract. Before Judge Pendleton. Fulton superior court. July 21, 1909.</p> <p>The Underfeed Stoker Company of America (hereinafter called the Stoker Company) brought suit against the Gulfport Cotton Oil, Fertilizer and Manufacturing Company (hereinafter called the Gulfport Company), alleging substantially as follows: On the 31st day of January, 1905, the Stoker Company made a contract with the Gulfport Company by which the Stoker- Company agreed to furnish to the Gulfport Company certain material and labor necessary for the complete equipment of two horizontal return tubular boilers at the plant of the Gulfport Company, Gulfport, Mississippi, with Jones Underfeed Mechanical Stokers, in accordance with certain specifications in the contract named. Under the original agreement the boilers to be equipped with stokers were the boilers owned and operated by the Gulfport Company in connection with its cotton oil and fertilizer plant. After the execution of said contract the Gulfport Company decided that it did not wish the boilers used in connection with its cotton oil plant equipped with the stokers, but desired to substitute the boilers used in its fertilizer plant; and by agreement of parties this substitution was made. In consequence of the substitution it became necessary to use additional material, which it is alleged the Stoker Company furnished by agreement, the Gulfport Company agreeing to pay the value of the extra material in addition to the sums stipulated to be paid under the contract. Petitioner alleged performance of the contract upon its part. The contract sued on was attached to the petition as an exhibit. In the contract, under the head of “Guarantees,” the Stoker Company made certain express warranties, which, so far as material to the case, are as follows:</p> <p>“Paragraph 1. Economy. The Contractors guarantee that by the proper use of the Stokers they will effect a saving of not less than 10 per cent, in fuel bills over the results that are regularly obtained in the ordinary running of the plant ’by hand firing on common grates.</p> <p>“Paragraph 2. Capacity. The Contractors guarantee that they can increase the rated capacity of the boilers to be equipped at least 25 per cent, beyond rated capacity; 10 square feet of heating surface in water tube boilers, 12 square feet of heating surface in return tubular boilers, or 7% square feet of heating surface in internal furnace boilers, to constitute 1 horse-power.</p> <p>“Paragraph 3. Smoke Abatement. The Contractors guarantee to practically 'abate the smoke nuisance, unless boilers be forced greatly beyond capacity, or- when fires are being started or cleaned.</p> <p>“Paragraph 4. All guarantees herein made are conditioned on the operation of the stokers in accordance with Contractors’ printed and written instructions; and the purchasers agree so to operate them.”</p> <p>The contract also made this provision: '</p> <p>“Paragraph 6. The evaporation tests necessary to determine the guarantees herein named shall be made upon completion of installation by the representatives of the Contractors and Purchasers, the boilers being operated at or beyond rated capacity, the details of tests being arranged between the representatives above named previous to the installation of the stokers.”</p> <p>It is provided that payment should be made as follows:</p> <p>“Paragraph 8. One third upon delivery of stokers, dead plates, blower, and engine; one third upon completion of installation and fulfillment of guarantees herein made by the Contractors; the remaining third to become due thirty (30) days thereafter; settlement to be made upon completion of installation and fulfillment of guarantees, by the Purchaser’s note of acceptance.”</p> <p>Other material portions of the contract are as follows:</p> <p>“Paragraph 9. It is understood and agreed that the. installation of the stokers-shall commence within thirty (30) days from time of delivery, and that the work shall be proceeded with continuously until completed. If through no fault of the Contractors they are not permitted to commence and continue the installation as above stated, the final payment shall be due and payable ninety (90) days from date of delivery.</p> <p>“Paragraph 10. ■ It is mutually agreed by each of the parties hereto that the stokers shall be installed and operated in accordance with the above agreements, and in accordance with the plans and specifications of Contractors, which they will furnish free of charge.”</p> <p>In its plea and answer the Gulfport Company denied compliance with this contract upon the part of the Stoker Company, alleged a failure to meet the express warranties set forth in that part of the contract headed “ Guarantees,” denied that' tests had been made as stipulated in the contract, and pleaded that by reason of the Stoker Company’s failure to carry out its contract and guarantees the defendant had been compelled to shut down its mill for a certain time, and during a stated period was unable to make fertilizers, and could not fill orders which it had on hand, in consequence of which it had been injured and damaged in a stated sum, for which it asked judgment.</p> <p>The jury returned a verdict for the plaintiff. The defendant made a motion for a new trial, which being overruled, it excepted.</p>

<p>Equitable petition. Before Judge Rawlings. Toombs superior court. January 27, 1909.</p>

<p>Action for damages. Before Judge Reagan. Monroe superior court. June 28, 1909.</p> <p>The substance, now material, of tlie petition as amended, in an action brought by Mary Madden against the Central of Georgia Railway Company, was as follows: The plaintiff boarded the defendant’s passenger-train in Atlanta at about eight o’clock a. m., bound for Wrightsville, Georgia, having purchased a ticket for the journey from defendant and having had her trunk checked from the former to the latter place. The train was due in Macon at about 11.30 a. m. She was far gone in pregnancy at the time, and expected to be confined in about two weeks. Her condition' must have been apparent to the conductor of the train, had he exercised the slightest care in observing her. She was accompanied only by her little son, who was too young to render her any assistance. The motion of the train brought on, prematurely, the pains of childbirth. When she realized that the pains of labor were upon her, she notified the conductor of the fact and requested him to put her and her trunk, which contained her own clothes and those she had prepared for the child to be born, off at the next station, where she could receive the care and treatment proper for one in her condition. This request was first made of the conductor when the train was about twenty or twenty-five miles from Atlanta. He refused to comply with her request, and informed her that she must go on to Macon. Her pains became more frequent and severe as the train continued on its way, and realizing that the child was about to be born on the train, despite her efforts to repress her labors and to defer the event, she appealed to the conductor repeatedly, and as often as he passed through the car, to put her and her trunk off at each next station, and to assist her in getting off. She was unable, on account of the great pain that she was suffering, to alight from the train without assistance, and so informed the conductor whenever she made such requests of him. He continued to refuse to put her and her trunk off, saying that she must go to Macon. Her condition became obvious to the other passengers and she endeavored to hide herself in the toilet for ladies in the coach. When the train reached Bolingbroke her pain had become so extreme and the birth of the child so imminent that, in her desperation, — hardly knowing what she was doing, she alighted from the train with intense pain and anxiet}^ rushed into the station-house of the defendant, and' requested the young and unmarried man in charge thereof to procure her a doctor at once, as she was about to be delivered of a child. In a very few minutes> and before a doctor came, the child was born in the station-house, without any assistance to relieve her and to alleviate her pain, and where there was no bed or couch upon which she could lie, and without any of the conveniences necessary at such times. On the defendant’s road, between Jonesboro (about eighteen or twenty miles from Atlanta) and Bolingbroke there -are seven or eight stations where the train stopped, “and several towns of large size, to wit: Griffin, where there is a hospital, Barnes-ville and Forsyth, .where she could have alighted from the train if assisted, and where her trunk could have been put off, and she could have readily obtained, medical assistance, and other assistance needed by women in. her condition; . . but at neither of these stations or towns, would the conductor assist her from the train or put off her trunk.” She “suffered while on said train, not only the pains incident to childbirth, but these pains were aggravated by her surroundings, and by the fact that she was on a train which was constantly in motion. She endured extreme anxiety and nervousness incident to the conduct of the conductor in refusing to put her'off with her baggage, and in refusing to procure' her medical assistance. • Her delivery was rendered far more painful on account of such conduct, and she was compelled to be delivered of her child in the station-house at Bolingbroke on account of the conduct of the conductor.” The negligence charged was, (1) the failure of the conductor to recognize the plaintiff’s condition and to realize that' she could not be carried to Macon, especially after he was informed by her that she was already in labor; (2) his refusal to comply with her request to put her and her trunk off and to assist her in getting off the train; (3) his failure to procure for her “a physician, if there was one on the train, or telegraphing for one, or in not asking for one at some of the various stations which the train passedand (4) the failure of the conductor to assist her in alighting from the train at Bolingbroke and to put off her trunk at that station. Damages were claimed for the pain and suffering, both physical and mental, which she endured by reason of the negligence of the defendant’s agents and employees.</p> <p>The petition was demurred to, and the demurrer overruled. The trial resulted, upon sharply conflicting evidence, in a verdict for the plaintiff. The case came up on a bill of exceptions sued out by the railway company, assigning, error upon the overruling of its demurrer, and upon the refusal to grant a new trial.</p>

<p>Complaint. Before Judge Gilbert. Muscogee superior court. March 6, 1909.</p>

<p>There was no evidence to warrant the court in charging the jury on the subject of voluntary manslaughter, involuntary manslaughter, or misfortune and accident as defined in the Penal- Code, § 40; and the court committed no error in failing to instruct the jury as to the law on either of these subjects. The evidence authorized 'the verdict, and the court committed no error in refusing a new trial.</p>

<p>Indictment for murder. Before Judge Lewis. Jasper superior court. April 20, 1910.</p>

<p>Indictment for murder. Before Judge Martin. Montgomery superior court. 'April 8, 1910.</p>

<p>Indictment for murder. Before Judge Whipple. Wilcox superior court. May 26, 1910.</p>

<p>1. Where the State offered the evidence of a witness who testified to an occurrence involving an angry altercation and a violent “scuffle” which took place at night near the residence of the witness, and where the nature of this altercation and the sayings of the parties thereto in the course of the same were material facts for the consideration of the jury, the court properly admitted this evidence, although the witness was not able to identify the participants in the altercation; inasmuch as the evidence of other witnesses tended to identify them and to show that the deceased and the accused, who was charged with the offense of having unlawfully killed the former, were two of the persons taking part in the altercation.</p> <p>2. Where two persons were engaged in an altercation and a “souffle” in the course of which one inflicted upon the other a wound with a knife, from which wound death resulted, upon the trial of the slayer charged with the murder of the deceased it was competent (proper foundation having been laid for the introduction of dying declarations) to show that the deceased, while in articulo mortis, and' being conscious of the fact, said that “they [the deceased and the accused] were not fighting;” the nature of the struggle or scuffle between the deceased and the accused being in question and the accused insisting that the infliction of the wound was purely accidental.</p> <p>3. The court did not err in excluding evidence offered for the purpose of showing that the accused did not flee after the homicide, although he had full opportunity of flight.</p> <p>4. The court did not err in charging: “If you find in this case a homicide is proved to have been committed by the person charged, with an instrument which the jury find was, in the manner in which it was used on the occasion in question, a weapon likely to produce death, the law, from the use of such weapon in .that manner, presumes malice and the intent to kill;” there being evidence sufficient to authorize the finding of the homicide unaccompanied with circumstances of mitigation or exculpation.</p> <p>5. The question as to whether or not the court should have given in charge the law of involuntary manslaughter is not properly raised in the motion for a new trial.</p>

<p>Indictment for murder. Before Judge Rawlings. Emanuel superior court. May 12, 1910.</p>

<p>Indictment for murder. Before Judge Lewis. Jones superior court. May 21, 1910.</p>

<p>Injunction. Before Judge Mitchell. Berrien superior court. May 16, 1910.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. November 11, 1909.</p>

<p>Petition for injunction. Before Judge Edwards. Haralson superior court. December 11, 1909.</p>

<p>Indictment for murder. Before Judge Park. Worth superior court'. March 2, 1910.</p>

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

<p>Indictment for murder. Before Judge Seabrook. Liberty superior court. April 22, 1910.</p>

<p>Injunction. Before Judge Mitchell. Berrien superior court. January 15, 1910.</p>

<p>. Injunction. Before Judge Mitchell! Berrien superior court. April 18, 1910.</p>

<p>Equitable petition. Before Judge Pendleton. Pulton superior court. January 27, 1910.</p>

Injunction. Before Judge Kimsev. Habersham superior court. June 1, 1910. The Wofford. Shoals Light and Power Company filed an eiqui- ■ table petition, seeking to enjoin the Southern Railway Company from interfering with its line for the transmission of electricity where such line crossed the right of way of the railway.

Equitable petition. Before Judge Fite. Whitfield superior court. October 12, 1909.

<p>Injunction. Before Judge Reagan. Butts superior court. April 18, 1910.</p>

<p>Indictment for murder. Before Judge Rawlings. Washington superior court. May 30, 1910.</p>

<p>A creditor who has instituted his suit at law against several debtors can not maintain, pending such action, a separate and independent equitable action having for its purpose the cancellation of an alleged fraudulent conveyance from one of the debtors to the latter’s wife.</p>

<p>Injunction. Before Judge Park. Decatur superior court. December 21, 1909.</p>

Prohibition. Before Judge Martin. Pulaski superior court. May 2, 1910. The State, on the relation of E. 1). Graham, solicitor-general of the Oconee circuit, filed a petition for the writ of prohibition to be directed to the ordinary of Pulaski county, alleging, in brief, as follows: In 1898 John Watts was indicted by the grand jury of that county for the offense of murder.

<p>Ejectment. Before Judge Parker. Glynn superior court. April 12, 1909..</p>

Injunction. Before Judge Felton. Crawford superior court. February 17, 1910. Held: was, “by a very large majorit}r, against the alternative road law, and said election was so declared by the ordinary;” and tha't the effect of said election was to nullify the recommendation of the grand jury and to prevent the operation of said alternative road law under the recommendation of that body, or, if in any maimer'or…

Injunction. Before Judge Fite. Lade superior court. January 15, 1910. The County of Lade and Fuller, as ordinary, filed their equitable petition, alleging, in brief, as follows: In 1907 the County of Dade recovered a judgment against John M. Castleberry as principal, and D. E. Tatum, T. F. Smith, George W. Cureton, and J. R. Brock, sureties. Castleberry had been treasurer of the county, and the other defendants were the sureties on his official bond.

<p>1. Where remarks are made by the trial judge to counsel in a criminal ease in the hearing of the jurors, which counsel contend -were of such a character as to prejudice the minds of the jurors hearing them against the cause of their client, they should either move for a postponement of the hearing in order that other jurors may be empaneled than those present when the remark is made, or, if the jurors have actually been selected and empaneled to try the particular case, a motion should be made to have a mistrial declared; and upon the judge’s refusal to grant a motion of the character indicated, his ruling would be subject to review. Counsel, having failed to make such motion and having proceeded without objection with the trial, can not, after conviction, raise the question as to the prejudicial nature of the remarks complained of, in a motion for á new trial.</p> <p>2. An erroneous charge to the jury, to the effect that if they should find tlie defendant guilty of voluntary manslaughter the form of their verdict would be, “We the jury find tlie defendant not guilty,” was such an apparent slip of tlie tongue that the jury could not have been misled into believing that if they found the defendant guilty of that offense it ' would have the effect of discharging him from all punishment; especially as the judge had previously in his charge covered the subject of voluntary manslaughter, and expressly stated to the jury that under certain facts and circumstances hypothetically stated the defendant would be guilty of voluntary manslaughter, and that it would be the . duty of the jury to find him guilty of that offense if they found from the evidence such facts and circumstances to exist.</p> <p>3. Where ,one inflicts upon another a wound with a weapon likely to produce death, and the person wounded actually dies in consequence of the wound, the quality of the act of the slayer can not be affected by a lack of skill and care upon the part of those who treat or attempt to treat the wounds and administer remedies therefor.</p> <p>4. The court did not err in refusing to charge the jury, upon request, that “If you believe from the evidence in the case or the statement of defendant that at the time Porch was shot he was attempting to unlawfully arrest the defendant, the defendant had a right to resist the arrest, and if in so doing he shot Porch for the purpose of disabling him, and not to kill him, and he died afterwards as the result of the wound or wounds, then you should find the defendant guilty of involuntary manslaughter in the commission of a lawful act without due caution or circumspection.”</p> <p>5. It is not error for the court to refuse to give a charge as stated in a written request, where the subject of the request is sufficiently covered by the general 'charge.</p> <p>6. In the absence of a pertinent timely request, the failure of the court to charge on the subject of impeachment of witnesses affords no ground for granting a new trial by this court.</p> <p>7. As a general rule hearsay evidence should not be admitted.</p> <p>8. “In the trial of a murder case, if at the time of making declarations the condition of the wounded party making them, the nature of his wounds, the length of time after making the declarations before he expired, and all the circumstances make a prima facie case that he was in the article of death and conscious of his condition when he made the declarations, such declarations should be admitted in evidence by the court, under proper instructions to the jury.”</p> <p>9. While the circumstances under which the gun with which the deceased' was shot was placed in the buggy of the accused on the evening of the homicide ' were material for the investigation of the jury, the State contending that the accused had gone to his home and there procured the gun and returned to the place of the homicide with it, and the defendant contending that it had been placed in his buggy by one to whom he had delivered it for the purpose of examination and trial with a view of his buying it, the exclusion of the statement of a witness, that he had “told him that evening that he had-decided not to buy the gun,” was not cause for the grant of a new trial, where the witness was permitted to relate fully the facts and circumstances attending the return of the gun and the placing of it in the buggy of the accused.</p> <p>10. The exclusion of the answer of a certain witness to the effect that the accused “was quiet” at the time when his conduct was a proper matter of inquiry, is not cause for granting a new trial, it appearing that tire facts’and circumstances showing the conduct of the accused at that time were fully brought out in the evidence; although the direct answer quoted above should not have been rejected on the ground that it was a statement of a conclusion and not of a fact.</p> <p>11. Evidence that the deceased had bought, whisky two or three months before the date of the homicide was properly excluded, where such evidence was offered to establish the fact that the deceased was “a drinking man and drank while on duty, and that he was willing to violate the law in order to get whisky.”</p> <p>12. Witnesses in giving their testimony, except in cases where expert or opinion evidence is proper, are restricted.to statements of facts, and are not permitted to state conclusions deduced by them from facts observed.</p> <p>13. The evidence relied on by the defendant in the present case, even if it would authorize the finding that the jurors might have formed a fixed opinion that the accused was guilty of the crime with which he was charged, and for that reason were incompetent jurors, did not require that finding by the judge, who was the trior of the question raised by the attack upon the competency of the jurors, and therefore did not raise a conclusive legal presumption of disqualification; and the trial judge did not abuse his discretion in overruling the objection to the jurors on the ground of their incompeteney.</p>

<p>Indictment for murder. Beforq Judge Felton. Houston superior court. May 11, 1910.</p>

<p>1. Objection that a grand juror was a non-resident is a challenge propter defectum, and must be made before verdict. If the ground of challenge be unknown to defendant and his counsel until after the verdict, and from conflicting evidence the court decides that the graiid juror had not changed his residence and was a qualified grand juror, it is not error to refuse a new trial on this ground.</p> <p>2. In every criminal ease the State’s counsel has the right to open and conclude the argument, except where the defendant introduces no evidence. On a trial for murder the defendant is not entitled to open and conclude by admitting the homicide and offering to prove his justification.</p> <p>3. The idea of prevention, or defense against an impending or progressing wrong, must enter into all eases of justifiable homicide. To deliberately kill in revenge for a past injury, however heinous, after, reason has had, time to resume its sway, can not be justifiable.</p> <p>4. Under the facts of this ease the court should have charged the law of voluntary manslaughter.</p> <p>5. There was no error in any of the rulings upon evidence.</p>

<p>In an action on a note given by a principal and sureties the defendants may ^set off unliquidated damages flowing from tlie breach of. an independent contract between the plaintiff and the principal, and competent testimony tending to support this plea should not be repelled.</p>

<p>A testator who had iour daughters, 'all of whom except one had children at the time the will was executed, devised to tlie other three daughters specific lots, in language clearly creating in them life-estates and remainders to their children, respectively, upon their deaths. To two .of these daughters, in separate items of the will, he gave two other lots “absolutely and in fee simple,” and no language was used indicating that the property so given was to go to any one upon death of the devisee. To the daughter who had no children he devised a lot for and during lier life, and provided, “but if she should leave no child or children, to go to her sisters, . . or their children, in three equal shares.” By item 12 of the will the testator disposed of the residuum of his estate as follows: “I give,- devise, and bequeath, absolutely in fee simple, all the balance of my property which I may own at.the time of my death, both real and personal, and wherever located, in equal shares to my four daughters, Carrie M. Crumley, Mary Z. Seales, Fannie A. Wright, and Maggie S. McBurney. Should any of my said.children die leaving child or children, such child or children shall take the share of their deceased parent.” Held, that under the 12th item of the will, all four daughters having survived the testator, each of them was entitled to her respective share therein devised in fee simple, and their children did not, under the will, acquire any interest whatever in the property so devised.</p>

<p>Indictment for murder. Before Judge Freeman. Coweta superior court. , June 14, 1910.</p>

<p>Indictment for murder. _ Before Judge Freeman.. Coweta superior court.- June 15, 1910.</p>

<p>Indictment for murder. Before Judge Parker. Clinch superior court. Jul.v 16, 1910.</p>

<p>Indictment for murder. 'Before Judge Edwards. Polk superior court. June 27, 1910.</p>

<p>Indictment for murder. Before Judge Roan. DeKalb superior court. July 23, 1910.</p>

<p>Indictment for murder. Before Judge Seabrook. Tattnall superior court. July 2, 1910.</p>

<p>1. When a .decedent in his lifetime assented to the correctness of an account rendered against him, it became, after such assent, a liquidated demand, and as such entitled to rank with promissory notes in the payment of the decedent’s debts.</p> <p>2. In a contest between creditors as to the rank in the distribution of the estate of a decedent of an account alleged to have been assented to by a decedent during his lifetime, the books of account of the decedent and certain receipts issued by his clerks were admissible in evidence. ■</p> <p>3. In the distribution of the estate of-a decedent, the claims of creditors would rank according to their several priorities at the time of his death; and a conditional promise made by the decedent during his lifetime to pay attorney’s fees would not entitle them to rank as liquidated demands merely because they might be included in a judgment which was rendered against the administrators of the decedent in a suit filed after the death of the decedent.</p>

<p>Complaint. Before Judge Gilbert. Taylor superior court. December 2, 1909.</p>

<p>Complaint. Before Judge Gilbert. Marion superior court. November 15, 1909.</p>

<p>Petition-for mandamus. Before Judge Whipple. Ben Hill superior court. May 19, 1910.</p>

<p>Equitable petition. Before'Judge Mitchell. Colquitt superior court.- October 14, 1909.</p>

<p>Mandamus. Before Judge Conyers. Camden superior court. May 14, 1910.</p>

<p>Action for breach of contract. Before Judge Bell. Fulton superior court. September 29, 1909.</p> <p>W. M. Talley brought suit against “John J. Woodside, agent for Mrs. E. J. Mitchell and Mrs. G. M. Bridges,” for damages because of an alleged violation of a contract whereby the plaintiff alleged he leased from the defendant certain property which was injured and damaged by fire before the termination of the lease and while the plaintiff was in possession. It was alleged that the violation of the contract consisted in the refusal of the defendant to repair the property and restore it to the condition it was in before the fire occurred. A cop}'' of the lease contract was attached to the petition. To the order of the court overruling his demurrer the defendant excepted. The lease contract contained the following provisions: “Said party of the second part further agrees to repair at his own expense any damage to water pipes caused by freezing or any neglect on his part, and to pay the water-rent on said premises: and not to assign this lease, sublet the premises or any part thereof, nor rent or lease the whole or any part of the premises to any other person without the written consent of the said John J. Woodside, agent: and he further agrees that he will deliver the premises at the expiration of this lease in as good order and repair as when first received (natural wear and tear excepted). Raid John J. Woodside, agent, agrees that should the premises he destroyed or damaged by fire so as to ho untenantable, the eonditions of this lease shall cease from the date of fire until the premises shall be restored to' as good condition as they were in previous to the fire, and the said agent reserves the privilege to' put a card ‘For Sale’ on this property at any time, and to put a card ‘For Kent’ on this property thirty daj^s before the termination of this contract. The said second party further agrees that the prospective tenants shall be permitted, during reasonable hours, to inspect the house at any time during the last thirty days of this lease. It is further agreed by both parties to this contract that the said second party agrees to release said first party from any and all damages to both person and property during this contract. Said party of the first part further agrees that the said agent, or any other person employed by him for the purpose, shall have the right at any time to enter said premises and thoroughly inspect the same, as to condition of same, repairs, etc., and shall have the right to make such repairs to the house, grounds, or fencing, as in his judgment seems necessary at any time during this lease. It is further agreed by both partiés to this contract that the said second party agrees that under no circumstances will he sublet the above-described premises, and in renting the above-described premises the said second party’s attention is specially called to the above clause, and to the following clause. Tt is further agreed by both parties to this contract that the said second party shall take the above-described premises in their present condition, knowing the premises are in bad repair and agreeing to make such repairs and improvements as are necessary at his own the said second party’s expense, and further, to require no repairs or improvements from said owner or agent. It is further agreed b}r both parties to this contract that the said second party agrees to re-cover such part of the building as is leaking and needs re-covering, also agrees to do what bracing is necessary to keep the building and roof in a strong and substantial manner, and agrees that this work is to be done within the next 60 days. All repairs and improvements put on the premises by the said second 'party shall become the property of the said first party. Said second party agrees to release said first party from any and all damages to both person and property during this contract.”</p>

Motion to vacate receivership, etc. Before Judge Edwards. Polk superior court. May 17, 1910. The Etna Steel & Iron Company is a domestic corporation, having its principal place of business in the county of Polk in this State. On January 1, 1907, the company executed to the Empire Trust Company of New York, as trustee, a mortgage or deed of trust to secure the issue of $600,000 of bonds.

<p>Indictment for murder. Before Judge Conyers. Glynn superior ‘court. June 4, 1910.</p>

<p>Indictment for murder. Before Judge Mitchell. Colquitt superior court. July 1, 1910.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. September 5, 1910.</p>

<p>1. Where a husband applies for and has set apart a homestead, his wife and minor children being named as beneficiaries, and where subsequently to the attainment of their majority by the minor beneficiaries a total divorce between the husband and wife is granted, the latter no longer has an interest in, the property so set apart as a homestead, and can not maintain a suit to enjoin the sale of the property under a power contained in a security deed executed by the husband during the life of the homestead.</p> <p>2. Where during the life of the homestead the wife brought a suit for alimony against the husband, and the jury found “that in furnishing a home for his wife Adolphus Shivers [the defendant] has and is doing al) that he should do; therefore we find a verdict in favor of the dc fendant,” this verdict did not have the effect of setting apart to the wife as alimony the house and lot in question, the same being a part of the property embraced in the homestead referred to above.</p>

<p>Action, for penalty. Before Judge Littlejohn. Stewart superior court. December 27, 1909.</p>

<p>Injunction. Before Judge Littlejobn. Sumter superior court. May 16, 1910.</p>

<p>Petition for injunction. Before Judge Mitchell. Berrien superior court. January 15, 1909.</p>

<p>Petition for injunction. Before Judge Mitchell. Tift superior-court. May 27, 1910.</p>

<p>Petition for injunction. Before Judge Conyers. Glynn superior court. April 30, 1910.</p>

<p>Mortgage foreclosure. Before Judge Parker. Glynn superior court. July 27, 1909.</p>

Equitable petition. Before Judge Parker. Pierce superior court. November 15, 1909. D. T. McClellan & Company instituted an action against the American Tie & Timber Company and R. R. Hobbs, who was alleged to be the agent of the defendant company. The suit was filed in Pierce county, where it was alleged Hobbs resided. The American Tie & Timber Company was alleged to be a corporation, with an office, place of business, and agency in Glynn county.

<p>Damages. Before Judge Bell. Fulton superior court. October 19, 1909.</p>

<p>Damages. Before Judge Pendleton. Fulton superior court. November 2,9, 1909.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court, December 16, 1909.</p>

<p>1. Where condemnation proceedings are had under the statute, upon the payment of the amount of the dward found by 'the assessors and the final judgment on appeal, the condemnor becomes vested with such interest in the property taken as may be necessary-for the exercise of the franchise or conduct of the business; and whenever the condemnor shall cease using the property for the purpose for which it was acquired, it reverts to the person from whom it was taken, his heirs, or assigns.</p> <p>2. Where such condemnation is had for a public purpose, under the power of eminent domain, the person whose property is condemned is not require! to make any !ee! or conveyance to the condemnor. He may stand upon, the statutory regulation as to the extent'of the estate acquire! by condemnation and the reversion in case of abandonment.</p> <p>3. If, instead of so doing, he makes a deed to the condemnor on account of benefits or advantages which he anticipates will flow to him, the rights of the parties with respect to reversion on abandonment will not be determined solely by the statutory result of condemnation, 'but by the terms of the conveyance.</p> <p>4. Where a municipal corporation instituted proceedings to condemn a strip of land with a view of opening a street, and the owner of the tract of which such land formed a part made a conveyance to the city in fee simple, the inclusion in the deed, in connection with the description of the land, of the statement that “the land condemned by the assessors duly appointed for that purpose to be used in extending [a named street] from its present terminus westward .to [another named] street,” did not constitute a condition subsequent authorizing a forfeiture, a cancellation of. the deed, or a recovery of the land by the grantor, upon the ground that the city had abandoned the extension • of the street.</p> <p>5. An equitable proceeding instituted by the maker of a deed for the purpose of cancelling it, on the ground of fraud, breach of condition, or the like, is not strictly a proceeding to remove a cloud upon a title, or governed in all respects by the rules applicable to eases of that character.</p>

Petition for direction, etc. Before Judge Bell. Fulton superior court. January 14, 1910. The facts of this case are sufficiently stated in the judgment filed by the judge of the trial court, as follows: “Upon agreement between counsel the case was withdrawn from the consideration of the jury, counsel stating that there was no issue of fact involved, and submitted to the court to pass upon all ‘the questions made by the pleadings.

<p>Divorce. Before Judge Ellis. Eulton superior court. November 30, 1909. ...</p>

<p>Complaint. Before Judge Edwards. Bockdale superior court. December 21, 1908.</p>

<p>Complaint. Before Judge Felton. -Bibb superior court. November 11, 1909.</p>

<p>Damages. Before Judge 'Meadow. Wilkes superior court. November 5, 1909.</p>

<p>Damages. Before Judge Kimsey. Habersham superior court. August 14, 1909.</p>

<p>Processioning. Before Judge Meadow. Taliaferro superior court. June 5, 1910,</p>

<p>Indictment for murder. Before Judge Meadow. Franklin superior court. June 14, 1910.</p>

<p>A wife upon a valuable consideration conveyed land to her husband -without the approval of the superior court of the county of her domicile; the'husband conveyed with notice to his creditor to secure a debt, conferring on the creditor a power of sale. A sale was had under the power, and the wife voluntarily yielded possession to the purchaser. Held, that the wife is not entitled to recover from her husband’s creditor the proceeds of such sale.</p>

<p>1. While accommodation makers of a promissory note are, relatively to a holder of the same who takes with notice of the character in which they sign the note, and relatively to the accommodated party, securities only, when such a note has been signed by one as principal maker and there is nothing on the face of it to indicate that he signed it other-</p> <p>' wise than as maker for value, and the note has passed into the hands of a bona fide holder without notice, the maker can not, by giving to the holder the notice provided by the Civil Code, § 2974, convert himself into a security and secure the benefits of the provisions of that section, so as to he relieved of liability upon the note in case the bona fide holder thereof fails to proceed to collect the note within three months after such notice.</p> <p>2. Even if the ruling of the court in excluding certain evidence was error, a new trial should not he granted in this ease; inasmuch as the verdict which the court directed was the only proper verdict which could have been rendered under the evidence submitted, and the evidence which was excluded could not have affected the result.</p>

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. December 18, 1909.</p> <p>The Fidelity & Deposit Company of ¡Maryland (hereinafter referred to as the company) brought its equitable petition against Thomas B. Hooks, alleging that on the first clay of October, 1900, Hooks made written application to the petitioner to become sole security on Hooks’s bond which was given as required by law for the faithful performance of the principal’s duties as.guardian of the personal property of certain minors. In this application Hooks entered into certain covenants and agreements relating to the manner in which he would handle the estate, and the particular methods of dealing with his wards’ property, which were calculated and intended to protect the surety. There were provisions in this application, requiring Hooks to furnish the company with copies of all reports to the court connected with the estate; to keep the company indemnified against any and all loss, cost, and charges which it might incur in consequence of having executed the bond; to furnish the company an inventory of all the estate which had come into Hooks’s possession; to deposit all securities belonging to the estate in a certain bank, and not to remove them except with the consent of the company; to make all investments in the manner pointed out in the application; to keep the estate so “ear-marked” that it could at all times be identified; to comply with the law in all respects touching the handling of the estate; and to do many other and divers things intended to safeguard the surety against loss. In consideration of these stipulations and certain fees paid, the company became sole surety on Hooks’s bond. Petitioner alleged that Hooks failed and neglected to comply with the covenants and agreements set forth in the application. It further appears from the petition that petitioner had procured a discharge as surety on the bond in 1908. Petitioner prayed that Hooks be required to pay into' court the full amount of money that he owes the said minors, or that he be required to invest said fund in securities as required by law, or that he be required to invest said fund under the orders of the superior court as provided by law.</p> <p>Defendant filed a demurrer, and an answer denying the alleged violations of an agreement as contained in the application. Attached to the plea as an exhibit is the judgment of the superior court, taken upon the appeal from the court of ordinary in the proceedings instituted by the company against Hooks to be discharged as surety on the bond of the latter, which judgment is as follows:</p> <p>“Now comes the defendant in the above-stated cause and withdraws his plea in said case. Wherefore, there being no issuable plea in said ease, and defendant having withdrawn his plea in open court voluntarily, it is therefore ordered and adjudged by this court that the plaintiff be and it is hereby discharged as the security on the said guardian bond of said defendant as guardian of the defendant’s minor children, to wit: Jas. D. Hooks, Wm. Glenn Hooks, and Thos. B. Hooks, Jr.; and that the said defendant, T. B. Hooks, be and he is hereby required to give a new bond with security as guardian of said minor children, within thirty days from this date, to the court of ordinary in Sumter county, Georgia, in terms of the law in such cases provided. . This Nov. 24, 1908.</p> <p>Z. A. Littlejohn, J. S. C. S. W. C.”</p> <p>Hpon the hearing the evidence introduced by the plaintiff tended to show that in certain respects Hooks had not complied with the agreements made by him in the bond touching the discharge of his duties. Hooks testified, that he then had in his hands $3,000 worth of property of his wards, which he had used himself and charged to himself, and allovved his wards interest on the same; that he had never kept it separate and marked as their individual property; “that he had just merged it with the balance of his estate; had just used the money and charged it to himself;” that he .had that money in hand at the time of the trial; that he had ina.de his returns to the ordinary in January, 1909; and that he had paid all the premiums to the company for becoming surety on his bond. There was evidence sustaining the allegations of the company that it had become surety on Hooks’s bond under the terms of the application above referred to. The ordinary of the county testified, in behalf of defend- ■ ant, that since the proceedings against Hooks upon the part of the company to be relieved as surety on his bond, Hooks had made his returns, and that he (the ordinary) had examined those returns, found them correct, and accepted them, and passed an order to that effect. The last returns showed that Hooks, had in hand $3,343.70.</p> <p>At the conclusion of the testimony the court directed a verdict in favor of the petitioner. Thereupon, the court decreed that Hooks pay into court the sum of money in his hands belonging to the wards. Hooks filed a motion for a new trial, which was overruled, and he excepted.</p>

<p>1. The charter of the City of Fitzgerald, as created by the act approved August 22d, 1907 (Acts 1907, p. 609), authorized the mayor and aider-men to elect a board of tax assessors, and conferred jurisdiction upon the tax assessors when so elected to assess the value of all real estate and personal property within the city, and to make their return to the mayor and -aldermen. Upon complaint, the mayor and aldermen were authorized to raise the assessment so made by the assessors; but the jurisdiction of the mayor and aldermen over such matters was purely revisory, dependent upon complaint being filed by the taxpayer, and was in no sense original.</p> <p>(«) A municipal tax on real estate, based on values designated by the ' mayor and aldermen of the City of Fitzgerald, under color of office, in excess of those at which given property was returned by the tax assessors, without any complaint having been filed by the taxpayer, was ultra vires, and may be enjoined at the instance of a taxpayer tile assessment of whose property has been illegally increased.</p> <p>2. In a suit to enjoin the collection of municipal taxes on real estate, based on values fixed by officers of the municipality acting ultra vires, it was competent to make as parties defendant the individual officers of the municipality who were alleged to have made the assessment and to be attempting- to enforce collection of the taxes.</p> <p>(a) The municipal corporation also was a proper party, and, not having been named, as a party defendant in the original petition, it was competent by amendment to make it a party in its appropriate corporate name.</p>

<p>Petition for injunction. Before Judge Wliipple. Irwin superior court. January 27, 1910.</p>

Partition. Before Judge Mitchell. Thomas superior court. October 21, 1909. Thomas Adams brought his petition for partition, alleging that his father, Thomas Adams, died on the 6th day of January, 1905, leaving, as his only heirs and distributees of his estate, Georgia Adams, his wife, and eight children, including petitioner. Mrs. Georgia Adams, the wife, died on November 5, 1905. All of the heirs at the time of filing the petition had attained tlieir majority.

Illegality. Before Judge Mitchell. Thomas superior court. October 20, 1909. In a suit pending in the superior court for injunction and damages, in October, 1901, a restraining order was granted, which also provided that it might be dissolved by the defendant giving a bond for the eventual condemnation-money. On the same day the defendant as principal, with, two others as security, executed and filed a bond and dissolved the restraining order.

<p>Foreclosure of lien. Before Judge Mitchell. Colquitt superior court. January 4, 1910.</p>

<p>Complaint. Before Judge Mitchell. Tift superior court. November 25, 1909.</p>

Complaint. Before Judge Ellis. Eulton superior court. August 28,. 1909. ' .

<p>1. Where a land company platted and cut up a tract of land into lots and streets, and sold some of the lots, the fact that it sold two of them to a railroad company, and received the purchase-price therefor, did not make such purchase-price include damages which might result to an adjacent lot by reason of the making of a deep cut across one of the platted streets on which the lots sold to the railroad company and another lot,of the land company both abutted, if such cut was in front of a portion of the other lot of the land company or contiguous to it, and cut off one of the principal approaches to- such lot, thereby damaging its market value.</p> <p>(a) If otherwise entitled to recover, such recovery would not be prevented because one of the agents of the land company, who executed the deed to the railroad company, testified that it was the general understanding that the railroad was buying the two lots sold to it for some such purpose as building a railroad, and that the general understanding was that there was a railroad to be built along through that . territory; or because another agent of the land company, who negotiated the sale, testified that he did not know at that time how the railroad company was going to build, or whether it was going to dig a cut at this place or not; that, from what the agent representing the railroad stated to him, he was not positive that the latter was going to utilize these lots at all; that he knew the company was going to run a railroad through there, but did not know where it was going to run, or how they were going to run it.</p> <p>2. The plaintiff’s petition sought to recover damages for the diminution of the market value of the lot because it was alleged that the cut across the street destroyed ingress and egress to and from the plaintiff’s lot by way of an easy and direct route into the neighboring city, leaving no outlet except by a circuitous route. The charge of the court did not limit the damages recoverable to a diminution in the market value thus arising, but was calculated to lead the jury to believe that if the market value of the lot was decreased by reason of the general proximity of the railroad cut or other cause, the plaintiff could recover therefor.</p> <p>3. While the word “street” is generally applied to a thoroughfare in a city, town, or village, yet, where a tract of land outside of the incorporate limits of a city was platted and divided into lots and ways of ingress and egress called streets, in a suit for damages resulting from digging a cut across such a way, .and injuring the mode of ingress to and egress from the lot, it was proper to refuse a request to charge, defining a street to be a public way in ,a city, town, or village, and instructing the jury that if there was no street, as thus defined, lying beside the lot in question, there could be go recovery.</p> <p>4. It is a substantial, not literal, agreement between the allegata and probata which the law requires. Requests to charge, the effect of which would require the plaintiff’s evidence to conform to the letter of the petition as to the situation and size of a cut in a street, on account of which damages were sought, should be refused.</p> <p>5. If the right of ingress to and egress from a lot by means of a direct and easy way, which the owner had a right to use without obstruction, was cut off by means of a railroad cut made across such street or way in front of the lot or contiguous thereto, thereby lessening the market value of such lot, the owner would not be prevented from recovering damages therefor because there might be another circuitous and longer way by which the lot could be reached. The possibility of access to the lot by other means would be for consideration in determining whether its market value was diminished, and, if so, to what extent; but would not, as matter of law, prevent any recovery.</p>

<p>Habeas corpus. Before Judge Pendleton. Fulton superior court. May 13, 1910.</p>

<p>Petition for injunction. Before Judge Felton. Bibb superior court. March 28, 1910.</p>

<p>Motion to reinstate. Before Judge Seabrook. Effingham superior court. November 11, 1909.</p>

<p>Habeas corpus. Before Judge Kimsey. Babun superior court. March 21, 1910.</p>

<p>Injunction. Before Judge Felton. Bibb superior court. April 28, 1910.</p>

<p>Injunction. Before Judge Kimsey. Stephens superior court. April 27, 1910.</p> <p>Byrum & King filed a petition to the railroad commission, alleging, that they applied to the Southern Railway Company for spur-track from its main line at a point near Ayersville, in Stephens county, for the purpose of establishing and maintaining a brickyard at that point; that'pursuant to this application the railway company agreed with them to put in a track upon the payment by them of a certain sum of money, and upon the faith of this agreement they proceeded to make the necessary arrangements to manufacture brick in'large quantities; and that they had on hand a large quantity of brick which they were unable to profitably market except over the spur-track agreed to .be built. They prayed that the railway company be required at once to put in the spur-track. One of the commissioners, on November 25, 1907, addressed a letter to the attorney of Byrum & King> to the effect that the commission had decided that it was a dangerous point to break the main line of the track; but that inasmuch as the applicants had incurred expense upon the supposition that they had a valid contract, the commissioners thought the railroad company ought to put applicants in as good position as they were before incurring the expense; and that the authorities of the railway company had promised that they would confer with applicants with a view "of reaching a satisfactory agreement. On June 20, 1908, Byrum & King and the Southern Railway Company entered into a written contract for the construction of an industrial spur-track 350 feet long, which contract stipulated that it was to continue in effect for the full term of one year next ensuing from and after its date, and thereafter until either party shall have terminated the same by serving on the other sixty days notice in writing of its election. so to do, in which event, upon the taking effect of such notice, the railway company might discontinue the operation of such industrial track, and take up and remove the same, including the fixtures therefrom and from the right-of-way appurtenant thereto. The spur-track was built under this agreement. On November 10, 1909, the railway company notified Byrum & King that' it elected to terminate the agreement concerning the construction and operation of an industrial track as described in the agreement, and that it intended to discontinue the operation of the track and take up and remove the same within sixty days from the date of the service of' the notice, in accordance with the terms of the contract. Thereupon, on December 30, 1909, Byrum & King, together with Bird Kenny, Marion Edmonds, W. P. Brown, and W. J. Mays, filed their petition to the railroad commission, alleging, that in 1908, on the faith of the promises of the Southern Bailway to put in the spur-track for them on its main line near Ayersville, Byrum & King constructed a plant for the manufacture of brick on a large scale; that, the railway company failing to comply with their promises, Byrum & King applied to the railroad commission for an order compelling them to construct the spur-track, but before any decision was reached on their petition they and the railway company reached an agreement whereby the railway company was to construct a spur-track, and a spur-track was constructed; that, notwithstanding the general depreciation in business Byrum & King had shipped, to November 18 of the current year, 125 car-loads of brick, that 16 car-loads of miscellaneous freight had been handled at that switch, and that they were prepared to do a much larger business and had already manufactured about two hundred thousand brick. and were prepared to manufacture large quantities. Applicant Bird Kenny alleged, that, believing the sidetrack to be permanent, he had bought a large tract of timber near it, shipped a saw-mill outfit over the spur, and had located a sawmill, and was preparing to saw the timber, and that it would take at least one year for him to convert the timber into lumber; that he would not have made this-investment if he had not believed the track to be permanent, as this is his only possible shipping point. Applicants Edmonds, Brown, and Mays alleged, that they were farmers, and that it was more convenient to have their fertilizers deliveied to them over this spur-track than at any other point on the railroad. It was represented in the petition that the topography of the country and the construction of the main line of the track of the railway company were such that the maintenance of the spur-track would be without danger to the operation of the railroad company’s cars at this point. They alleged that the railway company had served notice that after January 3, 1910, it would remove the spur-track; and they prayed that the railroad commission interfere to prevent the railway company from discontinuing the spur-track at the time mentioned. The railroad commission passed an order, reciting that it was dangerous to the travel and. transportation of the railway company to maintain the spur-track at this point, and denying the prayers of the petition. Whereupon the applicants, whose petition had been denied by the railroad commission, filed suit in the superior court, alleging substantially the same facts, and praying that the railroad company be perpetually enjoined from removing the spur-track. On the interlocutory hearing the court passed an order restraining the railway company from removing the spur-track, and exception is taken to this judgment.</p>

<p>Equitable petition. Before Judge Fite. Bartow, superior court. November 6, 1909.</p>

<p>Injunction and receiver. Before Judge Fite. Whitfield superior court. February 14, 1910.</p> <p>L. F. McKinney filed a petition for injunction, alleging, that he had bought from J. A. Farnsworth a certain farm upon which a dairy business was being carried on, together with all rights, members, and Appurtenances thereunto belonging, including a lot of feed-stuff for cattle and stock; and asked that the court decree title to all of this property to be in the petitioner, that W. A. Peek, who was in possession of the property, be enjoined from remaining on or coming about said place, that the property and everything thereto pertaining be turned over to the plaintiff, and that general relief be granted. The defendant answered, denying that the plaintiff had purchased any of the property; setting up a written contract between himself and J. A. Farnsworth, Hal N. Harris, and J. J. Farnsworth; and claiming that this contract was well known to the plaintiff when he tried to purchase the property. The defendant further charged a fraudulent collusion on the part of Farnsworth, a partner under the contract, and Fields, a creditor and son-in-law of the plaintiff, the purpose of which was to illegally obtain possession of the partnership property and convert it to their own particular use, and especially to pay a debt of Farnsworth to Fields, to enable Farnsworth to avoid accounting to the defendant $.s a partner, and to defraud the creditors of the partnership which defendant claimed was created by the contract. He denied that the sale. to McKinney was real, but insisted that it was a mere colorable transaction; and that if any sale was made, it could only be subject to the partnership contract referred to, and subject to all of his equities and rights thereunder, and that McKinney could only buy such interest in the business as J. A. Farnsworth had.</p> <p>Hpon the interlocutory hearing the court granted the .following order, to which Peek excepted;</p> <p>“This matter coming on for an interlocutory hearing at Ring-gold, Ga.. on the 8th day of February, 3910,- upon due order therefor, upon both parties being present and represented by counsel, and after hearing the testimony, both by affidavits and orally, it is ordered by the court as follows:</p> <p>“1st. The court being of the opinion that the sale of the property in question to L. W. McKinney was a bona tide sale for the full value of the place, that the consummation of said sale is to the interest of all parties to this proceeding, it is directed that the said sale be consummated and completed, that the possession of said property be given to said McKinney.</p> <p>“2. That F. T. Hardwick be and he is hereby appointed receiver of the Goodwood Dairy described in plaintiffs petition; said receiver is directed to take charge of the unpaid balance of the purchase-money on said place after paying the Earl Field debt and of any notes or other evidence of indebtedness belonging to the Goodwood Dairy, and hold the same until further order of the court.</p> <p>“3. John A. Farnsworth and all other creditors of the Good-wood Dairy are allowed to intervene in this proceeding, setting up any rights, liabilities, or other facts or relations affecting their rights, growing out of said transaction; and if the said Farnsworth or any creditor fails or refuses to intervene as aforesaid, it is further ordered that the receiver bring such failure to the attention of the court (that proceedings may be had to compel such intervention) within thirty days from this date.</p> <p>“4. It is further ordered by the court that the eviction proceeding formerly filed by McKinney be dismissed by him, as a condition to the relief here granted to him.</p> <p>“5. It is further ordered that the said Peek, upon surrendering the possession of the said Goodwood Dairy Farm to the said McKinney, file with the court a full statement of his account since the first day of January, 1910, up to the time of taking possession of said farm by said McKinney."</p>

<p>Habeas corpus. Before Judge .Edwards. Haralson superior court. January 5, 1910.</p>

<p>Indictment for murder. "Before Judge Charlton. Chatham superior court. May 6, 1910.</p>

<p>Petition for injunction. Before Judge Ellis. Eulton superior court. February 7, 1910.</p>

<p>Injunction. Before Judge Reagan. Bibb superior court. May 23, 1910.</p>

<p>Petition to remove cause. Before Judge Pendleton. Fulton superior court. November 20, 1909.</p>

<p>Injunction. Before Judge Ellis. Fulton superior court. January 20, 1910.</p>

Equitable petition. Before Judge Pendleton. Pulton superior court. October 26, 1909.

<p>Complaint. Before Judge Pendleton. Fulton superior court. January 12, 1910. *</p>

<p>Action for money had and received. Before Judge Bawlings. Toombs superior court.. August 19, 1909.</p>

<p>Ejectment. Before Judge Rawlings. Toombs superior court. August 10, 1909.</p>

' Attachment. 'Before Judge Charlton. Chatham superior court. August 29, 1909.

<p>Attachment. Before Judge Charlton. Chatham superior court. August 29, 1909.</p>

Equitable petition. Before Judge Charlton. Chatham superior court. August 26, 1909. The Central Bailroad and Banking Company of Georgia, a domestic corporation, owned, controlled, and operated a system of railroad, and was also the sole stockholder in the Ocean Steamship Company. The railroad company passed into the hands of a receiver, and, pending the receivership, interested parties conceived a plan of reorganization.

<p>Complaint. Before Judge Brand. Franklin supérior court. December 22, 1909.</p>

<p>Action for damages. Before Judge Wright. Floyd superior court. October 2, 1909.</p>

<p>Trover. Before Judge Kimsey. Rabun superior court. December 28, 1909.</p>

<p>1. To a suit by a donor against his donee to reform a deed so that it might include other donees who were omitted from the deed by mutual mistake, the persons omitted from the deed were not improper parties plaintiff.</p> <p>2. The allegations of the petition presented' a ease of such mutuality of mistake in omitting matters, which were intended to'be included in the deed, as would authorize a decree of reformation in a court of equity.</p> <p>3. Under the peculiar facts alleged, an equitable bar would not attach on account of laches, although thirty years intervened between the date of the execution of the deed and discovery of the mistake.</p>

<p>Abatement of suit. Before Judge Boan. DeKalb superior court. September 7, 1909.</p>

<p>Injunction. Before Judge Worrill. Miller superior court. January-20, 1910.</p>

<p>Equitable petition. Before Judge Eawlings. Bulloch superior court. November 16, 1909.</p>

<p>Complaint. Before Judge Rawlings. Bulloch superior court. December 27, 1909.</p>

<p>Equitable petition. Before Judge Seabrook. Liberty superior court. September 20, 1909.</p>

<p>Money rule. Before Judge Hammond. Bichmond superior court. October 30, 1909.</p>

<p>Complaint. Before Judge Eelton. Bibb superior court. November 24, 1909.</p>

<p>1. While in a suit by the owner of a certain horse, against a defendant to whom he had hired tile same for the purpose of driving, to recover the value of the horse on the ground that the defendant continued driving the horse after it became sick and after the discovery of the sickness of the animal by the defendant, which continued' driving of the horse in that condition caused the death of the animal, a charge of the court to the jury, to the effect that, among other obligations on the part of the bailor, there is an obligation that the thing bailed is free from any secret fault rendering it unfitted for the purpose for which it was hired, was not exactly adapted to the issues of the ease, it was not, under the evidence, so misleading’ as to injure the plaintiffs.</p> <p>2. Where the court stated the rule defining the obligations of the bailee as favorably to the bailor as he was entitled to have it stated, the fact that the court charged ás to the rule of diligence upon the part of the bailee in cases where the bailor sends his agent with the thing hired was not prejudicial to the plaintiff in the case, although there was no evidence to show that the bailor sent his agent with the team hired, but on the contrary the evidence showed that no agent of the bailor was sent with the horse which constituted the subject of the bailment.</p>

<p>Petition for injunction. Before Judge Brand. Clarke superior court. April 11, 1910.</p>

<p>Complaint. Before Judge Kimsey. Rabun superior court. November 15, 1909.</p>

<p>1. In a suit against a railroad company for damages, a general allegation that the plaintiff “was put to a reasonable expense of $150 for necessary medical attention and nursing',” was subject to special demurrer. Louisville & Nashville R. Co. v. Barnwell, 131 Ga. 792 (4) (63 S. E. 501).</p> <p>(a) If there were no other error, the overruling of a special demurrer to such an allegation would not require a reversal of a judgment of recovery by the plaintiff, where no evidence was introduced in support of such allegation, and where the charge of the court did not submit any such element of damages to the jury, and it is apparent that no harm could have resulted to the defendant from the ruling.</p> <p>2. While the evidence on the subject of whether the injury to the plaintiff was permanent in character was conflicting, there was enough to authorize the admission in evidence of the mortality and annuity tables, and the giving of a charge in regard to them.</p> <p>3. In an action by an employee of a railroad company to recover against the company on account of injury occurring in 1906, and alleged to have been caused by negligence of a eoemployee, it was error to charge as follows: “If the plaintiff shows to your satisfaction that he was injured by the negligence of a fellow servant, then the burden of proof would be shifted to the defendant, and the facts alleged would be presumed to be true until disproved by testimony satisfactory to you. So if a plaintiff shows he was without fault, the presumption would be that the allegations of fact were true, and it becomes your duty to decide as to the negligence.”</p> <p>4. That the court, in introducing a charge on the subject of permanent injuries, used the expression, “there is some evidence and pleadings in regard to permanent injury,” was not such an expression of opinion as requires the grant of a new trial.</p> <p>5. Where, in a suit by an employee against a railroad company to recover for a personal injury, a paper was introduced in evidence, apparently made out on a prepared form, which stated that the injury to the em- . ployee was not due to any negligence or carelessness on the part of any coemployee or foreman, but that the accident was one of the ordinary risks of the service, and that the railroad company and its officers, agents, and employees were in no wise to blame, and whieh recited the manner in whieh the injury occurred, and was signed by the plaintiff, there was no error in instructing the jury that such paper was not a release or discharge of the company from liability, but was simply an admission upon the part of the plaintiff; nor in adding that, under the law, admissions are scanned with care, and that the jury could consider such admission in the light of all the facts and circumstances connected with the transaction, as shown by the evidence.</p> <p>6. After charging as indicated in the preceding headnote, it was error to add, in regard to such an admission, that “It simply goes to his credit.” Such an admission of a party is not limited to the mere purpose of discrediting his testimony.</p> <p>7. The other grounds of the motion for a new trial appearing in the record are not such as to require a reversal for any reason assigned by the plaintiff in error.</p>

<p>Damages. Before .Judge Wright. Chattooga superior court. November 17, 1909.</p>

<p>Processioning. Before Judge Mitchell. Berrien superior court. September 22, 1909. ' •</p>

<p>1. Under the act of December 21, 1897 (Acts 1897, p. 76), in regard to the leasing of convicts, the Prison Commission were given full control and management of the State convicts, and power to appoint such officers, guards, and physicians as might be necessary. By virtue of leases made by the Prison Commission the physical custody of the convicts was not delivered into the hands of the lessees, but the labor of the convicts was contracted for.</p> <p>2. Where from the whole petition it is apparent that a person serving a term as a felon was caused to work for another as a lessee of convicts under the act of 1897, and no special facts are alleged showing that he was not being worked under the control of a guard or warden, mere general allegations to the effect that he was in the custody and control of the lessee do not serve to change the legal relation, fixed by the act of the legislature, of the convict toward the lessee and the guard or warden.</p> <p>3. An allegation that a lessee paid large sums of money to the deputy warden of the State, who was located at the place where the convicts were worked, was not sufficient to show that the warden ceased to be the appointee of the Prison .Commission, and became the agent or employee of the lessee.</p> <p>4. After the term for which a convict was sentenced had expired, there was no authority of law for continuing to hold him in custody and compelling him to work for a lessee. Such acts were not rendered legal because the physical custody of the convict was in a guard or warden appointed by the Prison Commission.</p> <p>5. A lessee of convict labor, who contracted for the services of a number of them in gross, was not bound at his peril to investigate the legality of the conviction or detention of each convict who was brought to work for him by the prison warden or guard. But if a convict was unlaw- • fully detained beyond the term of his sentence, and compelled to labor for the lessee, this was a tort; and if the lessee, with knowledge of the facts, “wilfully, intentionally, and fraudulently” participated in the wrongful detention, he would be liable, although the physical custody of convicts was in the warden or .guard'.</p> <p>6. Where a person was convicted of two felonies, and served his sentences concurrently, so that he was entitled to be released upon the termination of the longer sentence, he could not have such term reduced on account of good conduct, under the Penal Code, § 1173, by calculating an allowance for good conduct on each of the two sentences and deducting the aggregate time from the longer sentence.</p>

<p>Breach of contract. Before Judge Bell. Fulton superior court. October 28, 1909.</p>

<p>1. A petition seeking specific performance and injunction may be amended, either in form or substance, notwithstanding its allegations are sworn to; and the fact that the plaintiff has obtained a temporary restraining order on the petition prior to his offer to amend is no bar to this right.</p> <p>2. Where the vendor in a contract for the sale of land has only a bond for titles to the land', and the purchaser by the contract is to pay the maker of the bond, as a part of the purchase-money, the whole or part of a' certain debt due him by the holder of the bond, the fact that the vendor does not own the fee-simple title to the land, which fact is known to the purchaser when the contract is made, is not a good ground -to defeat an action by him for specific performance. This is true though the written contract between the parties did not disclose the fact that the vendor had only a bond' for titles to the land.</p> <p>(a) The original petition prayed that the defendant be required to transfer to the plaintiffs the bond for titles. An amendment to this prayer was offered and allowed, adding thereto, “or that the defendant Mims be required to execute to petitioners a good and sufficient warranty deed to . the land.” This amendment by which such addition was made to the prayers of the petition was not subject to the objection that a new cause of action was thereby added.</p> <p>3. The amendment offered by the plaintiffs was not subject to any of the objections made thereto, and the petition as amended was not subject to any of the grounds of demurrer.</p>

Questions of constitutional law; from Court of Appeals (2444). Held: although furnishing sufficient and adequate headlight; forces defendant to abandon the use of lamps, reflectors, headlights, and material lawfully held, although adequate and sufficient for the production of safe and sufficient headlight and reasonably adapted to the protection of person and property, whether on the track or on the…

<p>• Action for libel. Before Judge Mitchell. Lowndes superior court. November 16, 1909.</p>

<p>1. The action was complaint for land, and' involved the construction of. a will. It was tried hy the judge upon an agreed statement of facts, with consent that he pass upon all questions of law and fact' without a jury. Among other things the statement of facts contained stipulations by which it was conceded that if the will was sufficient in law to amount to a valid' devise of any interest in any land to the plaintiffs, the land so devised was the land in dispute, and that the plaintiffs were entitled to recover it in fee.</p> <p>2. Construed in its entirety, the description of the land alleged to have been devised to the plaintiffs was not sufficiently definite to amount to a valid devise in severalty, but was sufficient to amount to a devise to them as tenants in common with another to a ’definite part of the testator’s plantation; and under the construction of the agreed statement of facts announced in the first headnote, it was erroneous for the judge to hold that the land in dispute was not devised to the plaintiffs.</p> <p>3. The plaintiffs were not seeking to establish any affirmative equitable relief, but relied for recovery on an alleged legal title in an action at law. Under these circumstances, the case was not one for the interposition of an equitable bar hy laches.</p> <p>(a) There was no right of entry by the remaindermen until after the death of the life-tenant. Sufficient time did not elapse, between that event and the date of the commencement of the action, for the ripening of a prescriptive title.</p>

<p>Indictment for murder. Before Judge Freeman. Meriwether superior court. October 28, 1910.</p>

Petition for specific performance. Before Judge Pendleton. Fulton superior court. October 23, 1909.

<p>Exceptions to decree. Before Judge Littlejohn. Lee superior court. November 4, 1909.</p>

<p>Exceptions to 'auditor’s report. Before Judge Park. Decatur superior court.. November 25, 1909.</p>

<p>Ejectment. Before Charles P. Hansell, judge pro hac vice. Thomas superior court. November 29, 1909.</p>

<p>Action for damages. Before Judge Martin. Twiggs superior court. December 21, 1909.</p>

<p>Equitable petition. Before Judge Parker. Charlton superior court. October 26, 1909.</p>

<p>1. An objection to the admission of evidence, which does not set out the evidence objected to, either in full or in substance, presents no question ' for adjudication.</p> <p>2. It has repeatedly been held that it is within the discretion of the trial judge to allow a witness to testify who has violated the rule for the sequestration of witnesses.</p> <p>3. Where a plaintiff and defendant in an ejectment case each claims title to the land as sole heir at law of a decedent, the plaintiff claiming- to be the son and the defendant claiming to be the widow of a second marriage, the declarations of the decedent, made subsequently to his second marriage, that his first wife was in life are inadmissible. On an issue of marriage vel non the declarations of the parties themselves that they were or were not married, made ante litem motam, are admissible evidence of the fact declared. But the declaration of such party as to a fact, evidentiary of the invalidity of the marriage, does not come within the exception to the rule of hearsay evidence. The admission of the evidence was harmless error, for the reason that the jury returned a verdict dependent upon a finding that the second marriage was valid.</p> <p>4. One tenant in common may bring ejectment against his cotenant if the latter’s possession be adverse. Where the plaintiff and the defendant in an action for land, in their respective pleadings, each claims title and right of possession to the entire premises, and on the trial there is evidence that they are tenants in common, a verdict which finds that the parties are tenants in common, and that the plaintiff’s interest in the property is a certain fractional undivided interest therein, is authorized by both the pleadings and the evidence and is in legal form.</p>

<p>A policy of insurance provided as follows: Tlie life oí the assured is insured “for tlie benefit of Mary B. Wbarton, bis wife, and Ms children.” The insurer promises to pay the amount of the policy “to the said beneficiary, or their executors, administrators, or assigns.” . . “In case' of the death of the said beneficiary, before or at the time of the death of the person whose life is assured, the amount of the assurance shall be payable, at maturity, to the heirs or assigns of the said person whose life is assured.” At the time the policy was issued', the wife and two children of the assured were living. The assured left surviving him the wife and one of these children; the other ehild, prior to the death of the assured, having died intestate and without assigning his interest in the policy. 77eld, that the wife and children, as the only heirs at law of the deceased child of the assured, were entitled to one third' of the amount of the policy.</p>

<p>Complaint. Before Judge Rawlings. Bulloch superior court. October 25, 1909.</p>

<p>Petition for injunction. Before Judge Ellis. Pulton superior court. February 15, 1910.</p>

<p>■Equitable petition. Before Judge Charlton. Chatham superior court. January 11, 1910.</p>

<p>Complaint. Before Judge Seabrook. McIntosh superior court. .October 30, 1909.</p>

<p>Complaint. Before Judge Kimsey. Hall superior court. November 2, 1909.</p>

<p>In an action by heirs at law against their coheir to recover their distributive shares and to have the land partitioned and their shares assigned to them in severalty, it is not necessary to allege or. pi-ove lack of administration on the estate of their intestate ancestor, or, if there was administration, that the administrator had' assented to the bringing of the suit.</p>

<p>Equitable petition. Before TT. L. Patterson, judge pro liae vice. Milton superior court. August 16, 1909.</p> <p>Cora A. Manning and Mary I. Crisler filed their petition against William N. Manning, J. P. Brooke, and W. B. Maxwell, administrator with the will annexed of Mary Manning, wherein it was alleged, that Reuben S. Manning died in the year 1848, leaving a widow, Máry Manning, and seven children, the youngest three of whom are the petitioners and William N. Manning; that A. T. Camp qualified as guardian of petitioners and William N. Manning, and as such guardian received from the estate of their deceased father the sum of $810, which he in the year 1852 invested in two 'lots of land, which are described-in the petition, taking the legal title thereto in the name of Mary Manning. The investment was made with the knowledge of Mary Manning that the money of the three, named children had purchased the land, and she went into possession thereof as trustee for these children. Mary Manning and her three children jointly occupied the premises for many years, and one of the plaintifEs, Cora A. Manning, is now in possession of the house with one and a half acres of land attached. In the year 1898 William N. Manning, with full knowledge that he and each of plaintifEs were entitled to a one-third undivided interest in the land, fraudulently induced his mother to make him a deed. He procured the deed by representing to his mother that the instrument was a will, revocable at her pleasure; and his mother, being above seventy years' of age, feeble in mind and body, and wholly illiterate, relying upon the statement of her son that the paper was a will and not a deed, 'and that it was necessary for her to sign such paper in order to secure a support during the remainder of her life, and ignorant that the interest of petitioners was being jeopardized in consequence of her contemplated act, and upon a full understanding that the disposition of the land would remain permanently under her control, signed the instrument presented by her.son, without receiving any consideration therefor. When the three children came of age their guardian informed their mother that he would have to sell the land to pay the children their distributive shares which had been invested in the land; whereupon petitioners and William N. Manning then and there requested their guardian not to sell the land, but to allow their mother to live on the land during her life, stating that at her death they could divide it amongst themselves. The three children assented to this arrangement, and the land remained in the possession of the widow until her death in June, 1901. About the year 1897 William N. Manning notified his mother that he claimed the entire land under the deed from her; and thereupon she 'made a will repudiating the deed, and setting forth in the will the circumstances under which it was procured. Mary Manning never surrendered the land to William N. Manning, but continued to occupy the same until her death, and Cora A. Manning is now in possession of the dwelling and about one and a half acres of land attached. In the year 190é William N. Manning conveyed to J. P. Brooke a part of the land, with notice of the rights of petitioners, and with knowledge that Mary Manning had no power to convey to William N. Manning the entire premises. Mary Manning claimed possession of said land only as tenant of petitioners and William N. Manning, under the terms of the agreement that she was to remain in possession during her life. Before her death Mary Manning sold off twq parcels of the land, one consisting of ten acres and the other twenty acres. The prayers were: that the right and title of petitioners to a joint interest in the premises be set up and established by appropriate decree; that the deed from Mary Manning to William N. Manning be set aside and canceled; that the petitioners be declared tenants in common with defendants J. P. Brooke and William N. Manning; that William N. Manning be required to account for the rents, issues, and profits received by him in excess of the amount that he would be entitled to hold as tenant in common; and that a partition of the premises be decreed, and the interest of petitioners and each of the defendants be apportioned to them in severalty.</p> <p>The defendants Manning and Brooke demurred generally and specially. The special demurrers were met by appropriate amendments, and the court overruled the general demurrer. These defendants also answered, denying all the essential averments of the • petition. At the conclusion of the plaintiffs’ evidence the court awarded a nonsuit. Exceptions were taken to this judgment, and to certain rulings relating to the exclusion of evidence. Manning and Brooke sued out a cross-bill of exceptions, complaining of the overruling of their demurrer.</p>

Equitable petition. Before Judge Eite. Dade superior court. September- S3, 1(109.

<p>Attachment. Before Judge Edwards. Pplk superior court. September 3, 1909.</p>

<p>Exceptions to auditor’s report. Before Judge Edwards. Polk superior court. September 3, 1909.</p> <p>Mrs. Mary E. Heard filed her equitable petition against the Georgia Slate Company, the Southern States Portland Cement Company, and Hugh E. YanDeventer, for an accounting, injunction, the appointment of a receiver, and for general relief. So far as they need be set out the salient facts (taken largely from the report of the auditor) are as follows: Mrs. Heard (formerly Mrs. Jones) was the owner of certain land. She entered into an agreement with the Georgia Slate Company with regard to the sale to it of such land for $21,500, payable $1,500 in cash and the balance by an application of one half the net profits arising each .year. Later this agreement was superseded by another, and on August 13, 1896, she executed a deed to the company for the recited consideration of $21,500, but in fact only $5,500 was paid. On the same day she and the company entered into a contract which contained the following provisions: “Whereas Mrs. Mary E. Heard, of Rome, Georgia (formerly Mrs. Mary E, Jones, of Roelcmart, Georgia), and her husband E. A. Heard, by warranty deed bearing date this day, in consideration of $21,500 dollars and otlier valuable considerations have granted, bargained, sold, and conveyed to the Georgia Slate Company, a corporation created by and under the laws of Georgia, and having its principal place of business at Rockmart, Georgia, certain lands and premises in the County of Polk and State of Georgia, which said lands and premises are particularly described by metes and bounds in the said deed, to which, the same being intended to be placed of record in said Polk County, reference, is hereby made for more particular description; and whereas the premises and agreements hereinafter set forth formed a part of the consideration for said conveyances: Now, therefore, in consideration of the premises, and of one dollar in hand paid, the receipt of which is hereby acknowledged, the said company hereby promises and agrees that in the event that it shall, within ten years from the date hereof, sell and convey said lands and premises, and appurtenances, so conveyed to it, said company will account to and pay over to said Mary E. Heard, one half of the surplus which it shall receive for such sale over and above tbe sums whicb the said property shall have cost the company up to the time of sale, including in such cost the purchase-price paid, and. the sums expended for buildings, machinery, and other improvements, and for prospecting, developing, and working the quarries and interest therein, and also including all the expenses, commissions, and charges connected with such sale. Such principal sums to be reimbursed are stipulated to be at the date hereof $30,000, to which shall be added such further outlays of the nature mentioned as shall be incurred up to the time of sale. But it is expressly understood and agreed that nothing herein contained shall in any wise be taken to limit or restrain the said company in its absolute right and power, to sell, lease, or otherwise dispose of said lands and premises as it shall deem fit and proper, on such terms and conditions as it alone shall or may choose and determine, as being for its interest, in like manner in all respects as if this agreement had not been made; it being hereby declared to be the true intent and meaning of this agreement, that, in the event of the sale of said property within the period stated, the said company shall first be reimbursed from such sale for all the outlays of every name and nature, including interest,' incurred' in or about the purchase, improvement, and development of the property, and the losses sustained in carrying on its business of quarrying; manufacturing, and selling slate, in connection with said premises, and in making sale of said premises, together with interest on such outlays, and after such reimbursement and the company shall have been made whole, the surplus remaining shall be divided equally in kind, between said company and Mrs. Heard. But nothing herein contained shall be in anywise deemed or taken to require 'a sale by said company, within the period mentioned, of. the property to which this agreement relates. It being the intent that it shall be wholly optional with the company to sell or not, at its discretion.” This agreement was executed on behalf of the company by Hugh F. YanDeventer, president, and attested by the secretary. Hugh F. YanDeventer had no substantial interest in the company, the stock being practically owned by his father, J. Yan-Deventer, and one Craig. The company’s business of quarrying, preparing for market, and selling slate was not profitable, and it became indebted in the sum of' $24,976.14, which was partly due to J. YanDeventer, and partly assigned to him. [Repeated efforts were made by the Slate Company to sell the property, which were without success, although it was offered for $30,000, and less. After 1896 the quarry was not operated by the company, though worked for a short time under a lease from it. Hugh F. VanDeventer had studied metallurgy, mining engineering, and geology. As far back as 1894 he knew that slate, shale, and limestone could be brought together to make cement. In the latter part of 1900 he found that Portland cement could be made of it, and determined to organize an enterprise for that purpose. In 1901 samples of slate and limestone were taken from a number of places on other lands than the Heard land, and samples of slate were taken from “dump slate” on that property and another tract, and analyses were made. One Cowham had analyses made. On January 28, 1901, at a meeting of the stockholders of the Slate Company, it was unanimously resolved to make to Hugh F. VanDeventer a deed to all the property and plant for $30,000, which deed was to be executed and placed in escrow with J. VanDeventer, to be delivered to the grantee upon payment of the consideration in cash or negotiable paper before July -1, 1901. This deed was signed by the vice-president. At a meeting of the stockholders on 'July 8, 1901, a resolution was adopted that the proposed sale or option be continued until December 31, 1901, and that the additional time should be allowed for consummation. W. F. Cowham was connected with various, cement companies. In August, 1901, he came to Georgia, and Hugh F. VanDeventer procured a meeting with him, it being represented to VanDeventer that Cowham was a capitalist and -could furnish finances for buying properties and, building a mill. VanDeventer had an option on another tract of land known as the Devers tract, containing slate. In October, 1901, he obtained an option on another tract known as the Nettles tract, which also contained slate of the necessary chemical combination, and which lay next to the land containing limestone. There was evidence tending to show that he did this for the benefit of the Cement Company, and that the latter paid the purchase-money. The auditor found, that VanDeventer obtained options on what were known as the Devers land, the Hogue land, and the Morgan land, paying for the Nettles land $1,000, and bargaining to pay for the Morgan land $2,000, and for the Hogue land $2,500; that he effected an arrangement with Cowham in connection with -the organization of the Cement Company, and transferred the options to Cowham, and the latter afterward deeded the land covered by them to the Cement Company; and that it or- Cowham paid the amounts due for the purchase-money and also repaid the $1,000. YanDeventer had had negotiations with a railroad company near by, in regard to rates which might be had for a cement manufacturing company, had gone east in person and obtained promises of favorable rates, had paid for examinations of titles to land, for chemical analyses and tests, and for preliminary investigations for a proposition to manufacture cement at that place, and had devoted something like a year to the proposed establishment of a cement plant. He had certain negotiations with Cowham. Hpon arriving at a satisfactory understanding, the proposition was laid before a meeting of all the stockholders of the Slate Company, in regard to the purchase of its property, and a resolution was adopted authorizing a conveyance to Cowham upon the terms stated. The Slate Company was to execute a deed to Cowham upon receipt of his two notes for $3,750 each, due at six and twelve months respectively, together with an agreement that Cowham was to deliver to .the Slate Company preferred stock of the Cement Company, which was to be organized, to the amount of $22,500. The vice-president, Craig, and James YanDeventer were familiar with the interest of Hugh F. YanDeventer in the proposed Cement Company. The deed from the Company to Cowham was dated December 2, 1901, and recited a consideration of $30,000.</p> <p>On December 12, 1901, Cowham and H. F. YanDeventer entered into the following written agreement. “These articles of agreement witnesseth: Whereas it is contemplated and intended to build a Portland Cement Mill at Kockmart, Georgia, on the lands controlled by H. F. YanDeventer of Knoxville, Tennessee; the Portland Cement proposition having been developed and proven by said YanDeventer; and whereas Mr. W. F. Cowham, of Jackson, Michigan, has visited the properties, investigated the feasibility of the project, and is ready, with said YanDeventer’s co-operation, to build and put in operation a cement mill on the above properties: therefore, it is understood, and by these presents agreed, by and between said Cowham and YanDeventer, to undertake the formation of the Cement Company and building of the mill on the following plan: Said Cowham and YanDeventer to be equal in every way; they to, have the land of said VanDeventer at fifty thousand ($50,-000.00) dollars in money and stock, and to turn it over to the company at one hundred thousand ($100,000.00) dollars stock; the land of the Georgia Slate Company to be taken part money and part stock as arranged by agreement with said Slate Company and said Cowham. And for his experience and mill influence and association, Mr. Cowham is to receive fifty thousand ($50,000.00) dollars of the common stock of said Portland Cement Company. The Portland Cement Company is to give J. S. Irvin five thousand ($5,000) dollars of preferred stock and twenty-five hundred ($2,500.00) dollars worth of the common stock that goes with it, and three thousand ($3,000.00) dollars a year and traveling expenses for himself and wife while in the employ of the company. Mr. N. S. Potter is to receive from the company five thousand ($5,000.00) dollars preferred and its bonus of two thousand, five hundred ($2,500.00) dollars, in common stock. Mr. McCourtie is to receive from the Company the same amount as Mr. Irvin, if the Company decides to avail itself of his services. The Engineering Company is to receive ten per cent, of the cost of the plant and its traveling expenses and hotel bills incurred in its erection. This agreement is based on the formation of the Southern States Portland Cement Company now in progress of organization under the laws of Georgia, and contemplates the issue of seven hundred and fifty thousand ($750,000.00) dollars of preferred stock and one million two hundred and fifty thousand ($1,250,-000.00) dollars of common stock, authorized under the charter of said Southern States Portland Cement Company, and it is the understanding that the common stock of one million two hundred and fifty thousand ($1,250,000.00) dollars of said Southern States Portland Cement Company, less fifty thousand ($50,000.00) dollars which goes to said Cowham for his influence as above expressed, and the fifty per cent, bonus going to the preferred stock under the plan of organization of said company, shall be equally divided between said Cowham and VanDeventer.” The option on the Devers land was released. The plan of organization of the Cement Company was that all the preferred stock carried with it a bonus of fifty per cent, of common stock. H. E. VanDeventer did not receive any part of the money arising from Cowham’s notes to the Slate Company, nor any part of the preferred or- common stock delivered by Cowham to the Slate Company. Out-of the entire transaction he received $40,000 of preferred stock and $361,-350, of common stock in the Cement Company. The value of this was at the time uncertain, but since then one or more dividends have been paid on preferred stock, and some of it has been sold for par or less. The common stock does not appear to have any market value. The auditor found that the property of the Slate Company, which it had obtained from Mrs. Heard, was well sold at $30,000, and that it was doubtful if it was worth that much; and that there was no lack of slate lands or of limestone lands in the vicinity, the products of which could be used to make Portland cement. He found in favor _ of the defendants. Exceptions of law and fact were filed to his report, which were overruled, and a decree entered accordingly. The plaintiff excepted.</p>

<p>Actióñ for damages. Before Judge Pite. T)ade superior court. December 6, 1909.</p>

<p>1. A national bank, in negotiating its paper, can bind itself for tbe payment thereof by its indorsement thereon;' but it can not guarantee the payment of the paper of others, or become surety thereon, solely for the benefit of the latter.</p> <p>2. A national bank loaned to one of its customers, a private corporation, an amount greater than ten per cent, of its unimpaired capital stock and surplus, in violation of the provisions of the Federal statute. The cashier of the bank, who was secretary and treasurer of the bank’s debtor, notified another of this fact, and stated1 to him that the “only way the bank could extend any further credit” to its debtor “was by procuring a loan” from him “to be secured by said bank,” and induced such other person to lend the bank’s debtor $15,000, upon the guaranty of the cashier individually, • and of the bank through its cashier, of the payment of the notes of the bank’s debtor for the amount borrowed1. Held: (a) A national bank can not ratify such an ultra vires act. (5) The fact that the cashier’s object in making statements to the lender to induce him to make the loan “was to procure to said bank the payment to it of the said amount so due said bank” by its debtor and to release the cashier from his liability “in making said excessive loan,” and the fact that the bank received $11,640.02 of the $15,000 borrowed, do not estop it from setting up the invalidity of such guaranty on its part.</p>

<p>1. A continuance will not be granted simply on the asseveration of the accused, without any supportive evidence, that because of public excitement he will not be able to have a fair trial.</p> <p>2. The grant of a continuance on the ground of the absence of a witness to prove the general good character of the accused rests in the sound discretion of the court, which was not abused in this case.</p> <p>3. The conduct and utterances of one charged with crime, indicative of a consciousness of guilt, such as an effort to suppress evidence, and the like, are receivable in evidence as incriminatory admissions.'</p> <p>4. It is competent for a witness to give the reasons which actuated him in making a discovery of a relevant fact in the case on trial.</p> <p>5. It is no ground for the exclusion of. a previous contradictory statement made by a witness, that, in laying the foundation, she was asked if she had! not made the statement to “Bud” Wilcox, and the impeaching witness is called to the stand by the name of D. J. Wilcox, where all the circumstances indicate a knowledge by the witness, as to whom impeachment is sought, of the identity of the person to whom the alleged statement was made.</p> <p>6. Where a witness has observed a matter in issue and from the nature of the circumstances he can not adequately state or recite the data so fully and accurately as to put the jury completely in the witness’s place and enable them to equally well draw the inference, it is allowable for the witness to give his inference in connection with the facts upon which it is predicated; but if the data can be placed before the jury in such a way that they may draw the inference as well as the witness, then it would be superfluous to add by way of testimony the inference which the jury may well draw for themselves.</p> <p>7. The possibility or impossibility of identifying a particular person, under the same circumstances and conditions wherein a witness testified1 that he identified the accused, may be shown by an experiment made by the same witness.</p> <p>8. Where the evidence affords no inference of any degree of homicide less than murder, and would sustain no other verdict than that of murder or acquittal, and the defendant in his statement to the jury repeatedly refers to the killing of the decedent and mentions having heard the shots fired, and the only defense set up by him, in his statement or in the evidence introduced by him, is that he was not the pei'petrator of the crime, it is not error to instruct the jury that if" the defendant was the person who killed the deceased under such circumstances he should be convicted.</p> <p>9. On a trial for murder, where an unlawful killing has been proved, and one of the issues is the identity of the accused as the slayer, evidence of threats by the accused against the deceased may be considered by the jury along with other evidence in determining the.identity of the accused as the slayer. Fulton v. State, 58 Ga. 224.</p> <p>10. An instruction upon the effect of an impeachment of a witness, premised by a statement that one of the modes provided for the impeachment of a witness is by previous contradictory statements, is not rendered erroneous by a failure to charge in immediate connection that such previous statements must relate to a material matter and the attention of the ■witness sought to be impeached must have been called to the time and place of making them. The mode of- impeachment concerns the testimony offered for that purpose; and where the impeaching testimony ,is material to the issue and1 admitted in compliance with the rules of law, the court is not required, at least in the absence of a proper request, to repeat the rule governing the admissibility of such testimony when charging on its effect.</p> <p>11. The charge on the subject of alibi was in substantial accord with the rule laid down in Harrison v. State, 83 Ga. 130 (9 S. E. 542).</p> <p>■12. The alleged newly discovered evidence was not of such character as would probably produce a different verdict, even if proper diligence had been shown in ascertaining the witnesses, and their evidence were not cumulative.</p> <p>13. The evidence was sufficient to authorize the verdict; no error of law was committed; and the discretion of the trial judge in refusing a new trial will not be disturbed.</p>

<p>Equitable petition. Before Judge Gilbert. Muscogee superior court. December 31, 1909.</p>

<p>1. In a written contract of sale of the capital stock, franchise, and physical' properties of a railroad company, the vendors covenanted to immediately deliver the property to the vendees, who were to pay one fourth of the purchase-price in cash and the remainder in installments as provided in notes given therefor. The vendors further covenanted to pay all outstanding bills against the railroad company; to be responsible for and settle all claims for damages alleged to have occurred prior to the sale; to deliver the railroad to the purchasers unencumbered1 of claims of any nature; that if there were any outstanding indebtedness at the maturity of the last payment, such was to be deducted from the purchase-price; that the right of way was to be from 50 to 100 feet wide and free from-encumbrance; and the vendors were to execute to the purchasers warranty titles upon their compliance with the terms of the contract. The notes for the deferred payments were payable to one of the vendors, and contained the stipulation that it was subject to the terms of the contract of sale. In a suit on the note evidencing the last payment: Held, that the performance of the vendors’ covenants was not a condition precedent to the bringing of the suit.</p> <p>2. By the terms of the sale contract any outstanding indebtedness may be pleaded in reduction of the last payment.</p> <p>3. The vendees, in the absence of any charge of the vendors’ insolvency., non-residence, or other equitable reason, are remitted to their remedy in an action on the contract, for any breach of covenant to become responsible for and settle any claim for unliquidated damages.</p> <p>4. As a general rule, in the absence of any stipulation in á contract of sale relating to the payment of the current taxes, where the sale occurs and the property is delivered subsequently to the assessment of the taxes, the payment of the current taxes devolves upon the vendor.</p> <p>5. It is in the discretion of the court to allow a plea in bar, filed at the appearance term, to be verified at the trial term, where an oral motion is made at the trial term to dismiss it for lack of verification.</p> <p>6. The grant of a nonsuit in this case was erroneous.</p>

<p>Action for damages. Before Judge Parker. Ware superior court. August 27, 1909.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. January 14, 1910.</p>

<p>Complaint. From Eichmond superior court.</p>

<p>Complaint. Before Judge Hammond. Burke superior court. December 2, 1909.</p>

<p>Complaint for land. Before Judge Bawlings. Tattnall superior court. . August 25, 1909.</p>

Attachment. Before Judge Wright. Chattooga superior court. September 16, 1909.

<p>1. Where the defendant seeks to remove a case to the Federal court solely on the ground of diverse citizenship, the allegations of the petition for removal must be taken as true by the State court in determining the right of removal, though such allegations contradict the averments in regard to the citizenship of the parties, contained in the plaintiff’s petition.</p> <p>2. The State court has no jurisdiction to try an issue of fact made by a petition to remove a case from the State court to the Federal court, but such issue must be tried in the latter epurt.</p>

<p>1. Even if certain statements which were attributed to the defendant were of such character as would make them amount to a confession, the mere failure to instruct the jury as to the law of confessions, in the absence of an appropriate request, is no cause for the grant of a new trial.</p> <p>‘¿. Under the special facts of this case, it was not ground for new trial that the judge repeated his instructions to the jury as to the different forms of the verdict authorized to be rendered, in the presence of the defendant but during the voluntary absence of his counsel.</p> <p>(a.) Certain former cases distinguished and modified in so far as anything said in them may be in conflict with the ruling here announced.</p> <p>, 3. In the light of the evidence and the entire charge, the remaining grounds of the motion for new trial, as approved by the judge, were without merit, nor were they of such character as to require further discussion.</p>

<p>One does not forfeit his right to defend himself against an assault solely because he may have been guilty of a wrongful act in the past. The facts of this ease do not bring it within the ruling announced in Drysdale v. State, 83 Ga. 744 (10 S. E. 358, 6 L. R. A. 424, 20 Am. St. R. 340), so as to authorize a charge to the effect that a father may attack for intimacy with his daughter in his presence, raising a well-founded belief that the criminal act is just over or about to begin, and the person attacked, though in danger, may not defend against such attack.</p>

<p>Indictment for murder. Before Judge Park. Turner superior court. November 14, 1910.</p>

<p>Indictment for murder. Before Judge Meadow. Lincoln superior court. December 8, 1910.</p>

<p>Constitutional questions; from Court of Appeals. 2752.</p> <p>The Court of Appeals certified to the Supreme Court the following questions: “Is the act approved August 6, 1907 (Acts 1907, p. 81), commonly known as the prohibition law, unconstitutional and invalid in that it absolutely and totally prohibits the manufacture of alcohol for any and every purpose, including its use for medicinal, scientific, and mechanical purposes and its use in the arts, as well as other uses than as a beverage, for any of the following reasons: because to enforce it - (and especially as relates to the plaintiff in error who owns and operates a distillery for the purpose of manufacturing alcoholic and spirituous liquors) would be to deprive him of his property, in violation of that provision of the constitution of this State (article 1, section 1, paragraph 3, Civil Code, § 5700) which provides that no person shall be deprived of life, liberty, or property, except by due process of law; or because it violates, for the same reason, the first section of the 14th amendment to the constitution of the "United States (Civil Code, § 6030), which provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the "United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; or because it violates article 1, section 1, paragraph 2, of the constitution of the State of Georgia, which provides that protection of person and property is the paramount duty of government, and shall be impartial and complete ?”</p>

<p>1. Some of the grounds of the motion for new trial complained that a verdict was demanded for the defendants upon their alleged prescriptive title; but as the judgment of the trial court refusing a new trial to the defendants, who lost before the jury, will be reversed on other grounds, and as the evidence may be different on another trial,- no ruling will be made with reference to them or to the general grounds, all of which depend upon the evidence.</p> <p>2. The charge of the court was inaccurate in several respects, and a number of exceptions thereto, as presented by the motion for new trial, were meritorious, as more fully stated in the second division of the opinion.</p> <p>3. In light of the ruling in Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (47 S. E. 940), the following charge was not erroneous, and, in the absence of a request for more specific instruction upon the subject, afforded no ground for a new trial: “Another rule I give you in regard to weighing the testimony is this: In civil cases you will be governed by a preponderance of the testimony;- that is a greater weight of the testimony, which is that degree of testimony that inclines your minds and consciences to. believe one side of a proposition or issue rather than the other side.”</p> <p>4. The evidence as to the loss of the original plat and grant from the State, und'er which the defendants claimed, was sufficient to authorize the admission in evidence of a duly certified copy thereof.</p> <p>5. A question and answer propounded to and answered by a witness as follows: “If a person should walk through those lots of land that have been turpentined, would they be able to see that possession had been taken of them? A. Yes, sir; unless they were blind,” were objectionable on the ground' that the answer amounted to the expression of an opinion, and it was properly excluded. This evidence was different in character from that referred to in Pride v. State, 133 Ga. 438 (66 S. E. 259).</p> <p>6. The evidence as to the loss of á certain contract between two of the defendants, relating to the land in dispute, was sufficient to authorize the introduction of secondary evidence of the original.</p> <p>7. It was competent on cross-examination to ask the following question and' elicit the answer thereto: “If anybody had stated that lot 231 had been turpentined continuously for over seven years prior to the time this suit was brought, you would not be prepared to state it was untrue, would you? Answer: No, sir,” the witness having been offered for the purpose of showing that there had not been possession for sufficient time for title by> prescription to mature, and having testified on his direct examination in effect that there had been no possession by defendants . for the requisite period.</p> <p>8. It was erroneous to admit, over the objection that it -was irrelevant, evidence to the effect that the witness had heard the land in dispute “called the Bailey lot by settlers around there,” there being no evidence to show that any of the defendants had heard it so called.' Also, evidence to the effect that the witness had heard the husband of one of the defendants, under whom such defendant claimed as an heir at law, tell the father of the witness that he had a quitclaim deed to the land in dispute, which some one had made him, but he did not claim the lot; the-deed1 so referred to being one under which such defendant was attempting, to prescribe, but no effort being made to tack the possession of the husband to' that of the preseribor in order to- make out the prescription,, and there being no evidence tending to show that the preseribor had: notice of the alleged admission. Prescription' might be based even on a forged instrument if the preseribor entered possession under it in good’ faith. Mitten v. Stines, 81 Ga. 655 (8 S. E. 315), and citations.</p>

<p>Action for bxeaeb of contract. Before Judge Parker. Clincb superior court. September 4, 1909.</p>

Action on bond. Before Judge Hammond. Richmond superior court. September 18, 1909. The plaintiffs in error brought suit on the bond of the administrator of the estate of their father, making, among others, substantially the following allegations: In the inventory of the estate there was no personalty, and the realty referred to therein which bélonged to the estate was certain' described property in the city, of Augusta.

<p>Complaint. Before Judge Hammond. Richmond superior court. January 12, 1910.</p>

<p>Beck, J. The court below erred in sustaining a general demurrer to the petition in a suit brought against a county, wherein it was alleged by the plaintiff that she was the owner of certain lands lying within the county referred to, and that the commissioners of roads and revenues of said county had cut a public road through her land and1 had taken her land for the public use without her consent, and, by the manner of cutting said road, had caused large quantities of rainwater to be diverted on to her cultivated land, resulting in damages to the land and rendering a large part of the same unfit for cultivation, to her injury and damage a stated sum, and that she had in writing demanded compensation from said commissioners, who had refused payment thereof.</p>

<p>1. Where upon the trial of a case the court directed1 a verdict in favor of the plaintiff upon the allegations contained in the petition and the admissions in the answer of the defendant, no evidence being offered by either side, the losing party was entitled, in order to obtain a review of the judgment of the court directing a verdict against him, to sue out a direct bill of exceptions to this court, or' make a motion for a new trial in the court below; and where he adopted1 the latter remedy, a motion to dismiss the motion for a new trial on the ground that a direct bill of exceptions was the sole remedy, and that no brief of the evidence in the case had been prepared and filed, was properly overruled.</p> <p>B. Where the petition alleged that the plaintiff’s intestate had made certain deposits with the defendant bank, for which certificates of deposit had been issued by the latter to the decedent, that demand had been .made for payment of the deposits, and refused, and these allegations were admitted to be true in the answer of the defendant, a prima facie case in favor of the petitioner was made; and where the answer of the defendant, in addition to the admissions referred to above, contained the affirmative defense that another than the administrator of the party to whom the certificates of deposit had been issued was the holder of those certificates, claiming to be the owner thereof, but on the trial no evidence was offered to support this affirmative defense, the court did not err in directing a verdict for the plaintiff.</p> <p>3. The court properly refused to order the plaintiff in this case to inter-plead with the party whom the defendant alleged to be the holder of the certificates of deposit in question, there being no appropriate pleadings under which the alleged holder could be made a party to the cause, and no prayer that he be made a party.</p>

<p>Habeas corpus. Before Judge Kimsey. Gwinnett superior court. January 10, 1910.</p>

<p>Tear’s support. Before Judge Edwards. Douglas superior court. December 21, 1909.</p>

Indictment for murder. Before Judge Mitchell — motion for new trial before Judge Merrill. Lowndes superior court. October SO, 1910. Tom Jackson was found guilty upon an indictment charging him with murder. The decedent alleged to have been murdered was Gertrude Jackson, the wife of the accused.

<p>Injunction. Before Judge Fite. Whitfield superior court. June 9, 1910.</p>

<p>1. The 30th section of the national banking act (Revised Statutes, § 5198), which gives a remedy to a debtor of a national bank, who has paid to the bank a greater rate of interest than that allowed1 by law, to recover back twice the amount of the interest paid, comprehends payment of the usurious interest by transfer of property as well as payment in money.</p> <p>2. In order to constitute a payment within the purview of the statute, by transfer of property, the parties must intend that the property be accepted as a payment.</p> <p>3. The statute contemplates an actual payment of the usury; and where property is accepted as payment, its market value at the time must exceed tlie principal and lawful interest, before it can be said that any illegal interest has been paid and received.</p> <p>4. The statute subjects the bank to the forfeiture only when the bank knowingly receives the excessive interest. Where property is accepted in payment of a debt infected with usury, it must appear, not only that the market value of the property was in excess of the principal debt and' legal interest, but that the transfer and delivery of the property was-intended by the debtor and accepted by the bank as payment not only of the lawful interest but also of the illegal interest.</p> <p>5. The statute is not applicable to voluntary payments of debts of third persons to the bank which may be infected with usury.</p>

Ejectment. Before Judge Mitchell. Lowndes superior court. November term, 1909. . This case was before this court on a former occasion. Priester v. Melton, 123 Ga. 375 (51 S. E. 330). The action was ejectment. The defendant pleaded the general issue, and put the plaintiff upon proof of her title.

<p>1. “In a civil cause, it is good cause of challenge that a juror has expressed an opinion as to which party ought to prevail, or that he has a wish or d'esire as to which should succeed.” Penal Code (1910), § 859. A party may avail himself of this cause of challenge by motion to put the jurors on their voir dire. In such case the court may propound the questions indicated in the code section to each juror, or he may propound them to the entire panel, adopting such plan- as will assure a response to each question from each individual juror. This is accomplished when the judge, after propounding the questions, directs that any Juror answering both or either questions in the affrmative shall stand up. A preliminary oath should be administered to the jurors before propounding the questions; but if this is inadvertently omitted and the attention of the court is not called thereto, it is too late after verdict to make this objection for the first time.</p> <p>2. The charge on the master’s liability to a servant for failing to furnish a safe place to work, to which exception was taken, when considered in connection with its context, was not erroneous.</p> <p>3. It is oftentimes impossible to state a complete proposition of law in one sentence. Therefore the whole instruction on that subject must' be considered. The various excerpts of the charge relating to a master’s duty to a servant in the employment of other servants, when considered together and with the entire charge, were not open to the criticisms on the disjointed segments.</p> <p>4. The Civil Code (1910), § 4426, declares: “If the plaintiff by ordinary care could have -avoided' -the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” It was not error to give in charge the principle therein contained, on request, although the plaintiff in his pleadings sought to recover full damages for the injuries alleged to have been sustained.</p> <p>5. Under the facts of the ease this court can not say that the verdict, which has the approval of the. trial judge, is so excessive as to justify an inference of gross mistake or undUe bias on the part of the jurors.</p>

<p>Complaint. Before Judge Charlton. Effingham superior court. August 10, 1909.</p>

Equitable petition. Before Judge Morris. Fannin ■ superior court. October 21, 1909. Mrs. M. A. Galloway, for herself and as next friend of Lillie M., Mamie A., Everett C., and Thomas G. Galloway, aged respectively 17, 11, 9, and 5 years of age, brought against John Vestal an equitable petition for injunction, cancellation ,of a deed, and other equitable relief.

<p>Equitable petition. Before Judge Morris. Cobb superior court. -November 22, 1909.</p>

<p>Attachment. Before Judge Fite. 'Dade superior court. December 6, 1909.</p>

<p>Equitable petition. Before Judge Edwards. Douglas superior court. February 1, 1909.</p>

<p>Complaint. Before Judge Lewis. Baldwin superior court. November 3, 1909.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. October 16, 1909.</p>

Complaint for land. Before Judge Felton. Bibb superior court. November 1, 1909. A. C. Cunningham and Annie Laura Cunningham instituted suit against A. D.- Calhoun to recover a certain tract of land.

<p>Where a building contract, in which there is a damage clause for nonperformance by a certain time, provides for payment by the owner of monthly estimates, any delays caused by the wrongful withholding of the same are excused. The wrongful withholding of the payment of the monthly estimates does not excuse performance within the stipulated time, unless such conduct prevents performance, nor relieve the builder from damages where the delay in completion of the house is dire to other and independent causes.</p>

<p>Buie. Before Judge Fite. Floyd superior court. December 28, 1909.</p>

<p>Dower. Before Judge Freeman. Carroll superior court. August 14, 1909.</p>

<p>Complaint- for land. Before Judge Freeman. Troup superior court. November 30, 1909.</p>

<p>1. Where a box of goods was 'shipped' from New York City to a town in Georgia, and was, there delivered by the last of the connecting line of carriers to the consignee, if such final carrier making the delivery received and held the through bill of lading issued by the initial' carrier, on the trial of an action for damages brought by the consignee against . the final carrier, on the ground that the box had been broken open and some of its contents lost and other articles damaged, the bill of lading; produced by the defendant under notice, was admissible in evidence on behalf of the plaintiff without proof of execution.</p> <p>2. Although it was competent to show what goods were in the box when it started, and when it was delivered, and for that purpose to show the weight at the beginning'and end of its transportation, and any admission which may have been made by the consignee in reference thereto, it was not error, upon objection, to refuse to allow a witness to testify that “plaintiff knowingly only paid the freight rate on two hundred and twenty-five pounds of freight” from the point of shipment to the point of delivery.</p> <p>3. The criticism that certain expressions used by the court in his charge, in stating the issues, was calculated to prejudice the defendant’s case, was. not well founded.</p> <p>4. There was no error in overruling the motion for a nonsuit.</p> <p>5. Two juries having found in favor of the plaintiff on substantially the same evidence, the presiding judge having granted a first new trial but refused a second, no error of law having been committed on the trial, and the evidence authorizing the verdict, this court will not interfere.</p>

<p>Claim. Before Judge Martin. Pulaski superior court. December 18, 1909,</p>

<p>Equitable petition. Before Judge Meadow. Elbert superior court. February 3, 1910.</p>

<p>Equitable petition. Before Judge Meadow. Elbert superior court. September 16, 1909.</p>

<p>Action for damages. Before Judge Felton. Bibb superior court. January 17, 1910.</p>

Equitable petition. Before Judge Kimsey. Lumpkin superior court. October 18, 1909. W. B. Tate filed his petition against Barilla D. Satterfield, Mike Goode, and several other defendants, some of whom were residents of the county where the suit was filed, and others were non-residents. Service was had on the non-residents by publication.

<p>Action for damages. Before Judge Fite. Dade superior court. December 6, 1909.</p>

<p>Mandamus. Before Judge Park. Grady superior court. October 3, 1910.</p>

<p>1. The Penal Code (1895), § 813, as amended by the act approved December 17, 1901 (Acts 1901, p. 43), which provides for the appointment of a board.of jury commissioners by the judge of the superior court, and which declares that “said judge shall have the right, however, to remove said jury commissioners at any time in his discretion for cause, and at once appoint successor or successors,” does not require that a jury commissioner shall be given a hearing, on charges preferred against him before he can be removed. The statute confers on the judge the power of removal when, in his discretion, he deems the removal of the commissioner to be advisable. The words “for cause” are simply admonitory to the judge that his discretion shall not be oppressively or capriciously exercised.</p> <p>2. The statute does not offend the due-process clauses of either the Federal or the State constitution, nor is it opposed to the guaranty of art. 1, see. 1, par. 2, of the State constitution, that “Protection to person and property is the paramount dirty of government, and shall be impartial and complete,” in that the statute undertakes to deprive a public officer of his office without notice or hearing.</p>

<p>Complaint for land. Before Judge Edwards. Walker superioi court. ■ September 11, 1909.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. December 18, 19‘09.</p>

<p>1. Section 60(b) of the bankruptcy act of 1898, making voidable preferences given within four months before the filing of a petition in bankruptcy, refers to existing debts, and not to a mortgage given bona fide for a present consideration, and not in contemplation of bankruptcy, and duly recorded.</p> <p>2. If such a mortgage on personalty was foreclosed in the statutory mode, and the sheriff took possession of the mortgaged property, a trustee in bankruptcy of the mortgagor, appointed after a subsequent adjudication, would not have the right, to have the property delivered to him, although the petition in involuntary bankruptcy was filed before the mortgage was foreclosed.</p> <p>3. The mere fact that in the bankruptcy proceeding a temporary receiver had been named, but had not taken possession when the sheriff seized the property under the mortgage foreclosures, would not alter the case. The question was between the right of possession of the trustee afterward appointed and that of the sheriff.</p> <p>4. The trustee in bankruptcy has ample opportunity to intervene in the State court and contest the validity of the two mortgages involved, and to assert any right which he may claim to the property or its proceeds, or, if the mortgages are not successfully attacked, to have any surplus which may arise from the sale thereunder .ordered to be delivered to him.</p>

<p>Petition for injunction. Before Judge Maddox. Eloyd superior court. July 7, 1910.</p>

<p>■Under the pleadings and' evidence in this case the court did not err in refusing to grant the injunction prayed for.</p>

<p>Specific performance. Before Judge Brand. Franklin superior court. December 22, 1909.</p>

<p>Complaint for land. Before Judge Fite. Bartow superior court. May 8, 1909.</p>

<p>1. The petition, properly construed, was for the 'recovery of land and the rental thereof, the possession of which land the defendant held under the plaintiff for the purpose o’f cutting and1 removing the timber and cord-wood therefrom, and which, after such purpose had been accomplished, the defendant refused to surrender to the plaintiff.</p> <p>2. If D. by contract procured from the plaintiff the right to take possession of the land in question for the purpose of cutting and removing the . timber and cord-wood therefrom, and transferred such right to the defendant, who entered upon the land with the acquiescence of the plaintiff, and when the purpose for which the defendant had thus obtained possession of the land had been fully accomplished he refused to surrender possession to the plaintiff, the latter would have the right to recoyer the land from the defendant, although no direct contractual relation existed between'them. ,</p> <p>3. The objection to the allowance of the second count of the petition, set forth in the amendment thereto, “upon the ground that the law of an undisclosed principal has no application in the case of a contract under seal,” was not well taken, for the reason that the contract set out in this separate and independent count of the petition did not appear to be und'er seal.</p> <p>(a) Such separate and independent count could neither be aided nor impaired by.reading into it something appearing only in the preceding count.</p> <p>4. If the defendant entered into possession of the land under and by virtue of a contract between the plaintiff and D., und'er the terms of which D. had the right to cut and remove the timber and cord-wood from the land, and- the defendant purchased from D. the latter’s right to cut and remove the timber and cord-wood, then the defendant could not, without first surrendering to the plaintiff the possession- so obtained, dispute the latter’s title to the land.</p> <p>5. The petition was not subject to any of the grounds of the demurrer, and the court did not err in refusing to sustain the same.</p>

Action for breach of contract. Before Judge Wright. Eloyd superior court. November 17, 1909.

<p>Action upon contract. Before Judge Wright. Eloyd superior court. November 17, 1909.</p> <p>This case arises out of the same transactions as the eases of Watters v. Hertz, ante, 804, and Watters v. Hertz, ante, 814. The present case, like the one last above mentioned, is a suit upon an alleged contract, but only the first of the written instruments set out in the other two cases is declared upon here, that is, what appears in the other cases to be the original writing signed by Doss alone, together with the various additions thereto signed by him. The sealed instrument signed by both Doss and the plaintiff, upon which was the writing signed by Watters, which is shown in the petition in each of the other eases above referred to, does not appear in the petition in the case now to be considered. In this case the petition, after alleging that “on the 25th day of January, 1906, the following paper was executed,” set out the first written instrument, including the additions thereto, signed by the defendant Doss, which appears in the petition in thf suit for the recovery of the land and in the suit for a breach of the agreement to build the house and the fence. Then followed the allegations: “3. That . . Watters succeeded to all the interest of . . Doss, under said contract, in and to. the timber and cord-wood referred to therein, and undertook the performance of the obligations of . Doss in said contract. 4. That at the time thereof . . Watters h¿d full knowledge of said contract between . . Doss and petitioner. 5. That . . Watters entered into possession of said lot of land under said contract, and has removed therefrom large quantities of lumber and cord-wood, and he is bound to respond to petitioner in accordance with the terms of said contract. 6. That the division of profits referred to in said contract was on the basis of one half to each party thereto, and was so understood bétween the parties at the time. 7. That the net profits derived from said timber and cord-wood so cut off and sold by . Watters, is the sum of $12,000.00, as shown by bill of particulars hereto attached, marked Exhibit ‘A? one half of which under the terms of said contract belongs to your petitioners, but which the said . . Watters or the said . . Doss fail and refuse to pay.” The next paragraph was a prayer for a judgment against the defendants in the sum of $6,000.00. Exhibit A was as follows: “To 1,500,000 feet of lumber at $14.00 per 1,000 ... .$21,000.00</p> <p>500 Cords of Wood, at $1.50................... 750,00 ■</p> <p>Slabs, sawdust, etc........................... 250.00</p> <p>. Total Eeeeipts .....1................$22,000.00</p> <p>Or. By Expenses of cutting, sawing, and hauling lumber ..................$9,150.00</p> <p>By Expenses cutting & delivering wood 300.00</p> <p>By Seasonable Wages, as per contract 550.00</p> <p>Balance, profits ....................$12,000.00.”</p> <p>The defendants jointly demurred as follows: 1. No cause of action is “set forth against defendant in plaintiff’s petition.” 2. Special demurrer to paragraph four, upon the ground that the allegations therein “are immaterial and irrelevant and should be stricken.” Watters separately demurred to paragraph three," upon the ground that it is not shown therein “by what means he succeeded to all the interest of . . Doss under the contract, . . nor how and for what consideration he undertook the performance of the obligations of . . Doss under said contract;” and to paragraph five, on the ground that it is not shown how and by what right he entered into possession of the lot of land in question under the contract set out in . . the petition, nor is it shown how or why he is bound to respond to the petitioner in accordance with the terms of the contract.” Before the demurrers-were passed on, the plaintiff offered an amendment in which, she first alleged, that Watters purchased from Doss all his interest in and to the timber and cord-wood on the land in question, “thus succeeding to the rights of ... Doss under the terms of said contract, and being bound to fulfill all his obligations thereunder;” and that Watters “thereupon . . entered .upon said lot of land and cut therefrom the timber and cord-wood, and converted the same to his own use and benefit, and has failed to respond to petitioner in accordance with said contract.” She then added a second and independent count to the petition, in which, after setting out the same contract as that embraced in the original petition, she alleged, “That in procuring and making the above and foregoing contract, . . -Doss was acting as agent for and- in behalf of . . Watters, his undisclosed principal; and thereupon . . Watters entered upon said lot of land, under and by virtue of said. contract, and cut therefrom the timber and cord-wood;” that Watters “had full knowledge of all the provisions of said contract so made by his agent, - . . Doss, and in entering. upon the said land and taking to himself all the advantages thereof he subjected himself to all the liabilities of said contract, and became bound to respond to petitioner in accordance with all the terms of said contract.” Then followed the same allegations as to “the division of profits referred to in said contract [being] on the basis of one half to each party thereto,” and as to the amount of the net profits, as.-were contained in the original petition; and a prayer for judgment against the defendants in the sum of $6,000. The defendants objected to the allowance of this amendment; upon the grounds: 1. “That the first count of said amendment should not be allowed, for the reason that it showed no privity or contractual relation between” the plaintiff.and Watters. 2. That the second count should not be allowed, because the law of an undisclosed principal has no application to a contract under seal. The court overruled these objections and allowed the amendment, and, after hearing argument upon the demurrers, overruled the same. 'The defendants filed a bill of exceptions wherein they complain of each of these rulings.</p>

<p>Illegality of execution. Before Judge Parker. Coffee superior court. March 24, 1910.</p>

<p>Complaint. Before Judge Eite. Whitfield superior court. January 22, 1910.</p>

<p>1. A judgment rendered by a court of ordinary, appointing a guardian, based upon tbe return of commissioners under tbe Civil Code (1895), J 2573, reporting a person to be imbecile, etc., and as well the report'd the commissioners,' may be assailed in a proper proceeding, instituted for that purpose by the person for whom it was sought to have a guardian appointed, in the court which rendered the judgment, as to facts relied’ upon to show that such person had been afforded a hearing; and if it he shown that the person had not had his day in court, the judgment may he vacated’, notwithstanding its recitals to the contrary.</p> <p>2. In a proceeding to appoint a guardian for a person alleged to be imbecile, the statute (Civil Code (1895), § 2573) is to be strictly construed, and the provision that the person for whom it is sought to have a guardian appointed shall be “examined by inspection” by the commissioners is mandatory, and requires formal examination by the commissioners in a body.</p> <p>{a) Where the uncontradicted evidence showed a failure to comply with the essential requirements of the statute in the manner of appointing a guardian for an imbecile, it was not erroneous, upon the trial’of a case instituted for the purpose of setting aside the appointment of a guardian and the return of the commissioners, for the judge to direct a verdict in favor of the plaintiff.</p> <p>3. In a suit making a direct attack upon a judgment appointing a guardian, of the character mentioned’ in the preceding headnote, where it appears that the judgment is void because of a failure to comply with the requirements of the statute according to a proper construction of it, an attack upon the constitutionality of the statute will not a be considered.</p> <p>4. Other assignments of error upon rulings of the judge upon questions raised by demurrer, and as to the allowance of amendments, and as to a refusal to continue or postpone the case, are not of such character as to require a reversal of the judgment, or elaboration.</p>

<p>Petition to set aside verdict and decree. Before Judge Bell. Eulton superior court. September 8, 1909.</p>

<p>Action upon contract. Before Judge Pendleton. Fulton superior court. December 22, 1909.</p>

<p>Equitable petition. Before Judge Morris. Gilmer superior court. July 3, 1909.</p>

<p>Action of libel. Before Judge Morris. Fannin superior court. January 10, 1910.</p> <p>This suit was brought on account of a publication wherein it was stated that the plaintiff, while in business, had managed to beat his creditors and had defrauded sundry persons. There was a verdict in his favor for $250.</p>

<p>Action for damages. Before Judge Freeman, Carroll superior court. October 8, 1909.</p>

Action for damages. Before Judge Ellis. Fulton superior court. January 22, 1910.

Equitable petition. Before Judge Pendleton. Pulton superior court. December 11, 1909. The cause of action was an alleged mutual mistake of calculation in taking notes for the purchase-price of land sold to the defendant.

<p>Action for damages. Before Judge Boan. Newton superior court. December 18, 1909.</p>

<p>Mandamus. Before Judge Seabrook. McIntosh superior court. February 19, 1910.</p>

<p>Complaint. Before. Judge Edwards. Floyd superior court. December 16, 1909.</p>

<p>Certiorari. Before Judge Edwards. Haralson superior court. September' 18, 1909.</p>

<p>1. Where a person who had been conducting and publishing a newspaper made a contract to sell the property, business, and good will to another person, who was in the employment of the publisher of a different newspaper, such a contract was not freed from the invalidity arising from having been made on Sunday on the ground that selling and1 buying newspapers was not the ordinary business of either party.</p> <p>2. Although a contract for the sale of a newspaper outfit and the good will of the business may have been invalid because it was made on Sunday, yet where possession of the property had been delivered on a week day, before the signing of the contract, to one who, in the original negotiations, was expected to be a copurchaser, but who did not sign the written contract finally executed, though forming a partnership with the purchaser; and1 where, after the contract was signed, the purchaser retained possession,.and (having paid one installment of the purchase-money when the contract was made) paid the balance in installments on other days than Sunday, and the seller received them without objection because of the time when the contract was signed, the parties thereby ratified such contract, and its terms were enforceable as if it had not been made on Sunday.</p> <p>3. Where one who had been engaged in publishing a_ newspaper in a certain county sold' the property connected therewith'and the business and good will to another and agreed not to conduct, either directly or indirectly, any other newspaper in that county without the consent of the other party, his heirs and assigns, such a contract was not void as being in general restraint of trade or unreasonable in its terms.</p> <p>4. In such a contract the amount paid by the purchaser furnished a consideration, not only for the transfer of the physical property, but also for the business and good will, and for the agreement of the seller not to conduct another newspaper in the same county.</p> <p>5. Although the installments of purchase-money may not have been paid on the exact days when they were due under the contract, yet where the seller received them - afterward, he could not claim that this was such a breach on the part of the buyer as authorized him to disregard the agreement not to conduct another newspaper in that county.</p> <p>6. The seller having sold the property and made the contract under seal in his own name, it furnished no defense to a proceeding to enjoin him from conducting- another newspaper in the same county, in- violation of the contract, to set up that the property which he sold actually belonged to his wife, and that he had no pecuniary interest in it.</p>

<p>Constitutional question; from Court of Appeals. 2798.</p>

<p>1. A bank check is a contract in writing, by the execution and delivery of which the drawer contracts with the payee that the bank will, on prg- - sentatibn, pay to him or his order the amount designated. It is not “merely a request upon a third party to pay.” Where the payee of such check brings suit thereon, it is not necessary for the petition to allege the consideration for which the cheek was given, or to set forth any further showing to maintain the action than that the plaintiff is named as payee in the check, and that it has been presented for payment and. the same refused.</p> <p>2. Where pending a controversy between the parties, as to matters growing-out of a prior contract between them, they enter into a new contract of accord and satisfaction, founded on a new consideration, the latter contract operates as a satisfaction of the former one.</p> <p>(a) After such latter contract has been entered into, a mere breach of it, or the declared intention of one of the parties not to abide by it, will not of itself operate to fix the status of the parties the same as it was prior to the making of the latter contract.</p> <p>3. Where a contract was made by which one party was to sell certain personalty and deliver a portion of it at one time, and another portion at a later date, if such party committed an anticipatory breach of the contract by announcing his intention not to comply therewith, but the other party did not proceed on the basis of claiming such anticipatory breach but waited until the first party brought an action on such contract, and then, after the time for performance had elapsed, claimed damages on account of a breach of the contract in not delivering the articles sold, such breaches would date from the times when the deliveries should have been made respectively, and not from the time of such anticipatory declaration of intention.</p>