Volume 136 — Georgia Reports

Exceptions to auditor’s report. Before Judge Pendleton. Eulton superior court. November 13, December 10, 1909. C. TV. Crankshaw, to whom was left a special legacy by tbe will of E. TV. Marsh, deceased, filed an equitable petition against tlie executors, praying for a decree requiring them to assent to his legacy, to dispose of the property, and to pay the debts and legacies.

<p>Complaint for land. Before Judge Beagan. Pulaski superior court. January 1, 1910. '</p>

<p>Action for damages. Before Judge Charlton. - Chatham superior court. February 2, 1910.</p> <p>Primus Fraser instituted suit for the recovery of damages against the Smith & Ivelly Company, alleged, to be a corporation. The petition was dismissed on general demurrer, and the plaintiff excepted. The following appeared, in substance, from the allegations. The defendant was engaged as a stevedore in loading a steamship with iron rails. The ship contained two compartments below the main deck for the stowing of cargoes, one denominated “between-decks,” and the other the “lower-hold,” which was the place in the vessel below that above mentioned. It also contained certain apertures extending through the decks, through’ which the ship’s cargo was handled in loading and unloading, one being designated as “forward hatch,” and the other “aft hatch,” which were called respectively hatches numbers one and two. These hatches in the lower deck were provided with a substantial wooden cover, composed of several sections of wood, which, when properly fitted together, were firm and safe. Each of these covers was made safe by means of a support known as a “strong-back,” which consisted of an iron beam provided to be placed across the hatch opening about six inches below the rim of the hatch, with each end fitted, into grooves made to fit and hold it firmly. On this the sections of the cover rested, and were thus made strong and safe, and when in such position the cover formed a part of the deck upon which the employees were accustomed and required to walk and step in the discharge of their duties in receiving cargo loaded from above. Separate gangs of men were employed in loading the ship on the day before the injury. The plaintiff was a member of the gang which worked in hatch number one until twelve o’clock át night, and was ordered to return to work at six o’clock the next morning, lie was then ordered to shift from work in hatch number one to hatch number two. The gang which on the previoris day, while plaintiff was working at hatch number one, were engaged at hatch number two, had finished loading in the “lower-hold,” and the work of storing cargo in the compartment “between-decks” was next in order. After finishing the storing of cargo in the “lower-hold” at hatch number two, the servants who had completed that work, as it was their duty to do, undertook to close the cover over hatch number two in the lower deck, so that the loading of cargo between decks might progress. In doing so they did not use the “strong-back” provided for the purpose, but instead substituted a wooden, beam or other improper appliance, and the plaintiff did not know, and could not have known by the exercise of ordinary care, that the cover was insecurely fastened, and had not equal means of such knowledge with his employer, but, in performing his duty next hereinafter mentioned, relied upon his employer to furnish him a reasonably safe place to work. In loading the- cargo between decks, the rails would be suspended and lowered through the hatch. In compliance with his orders so to do, the plaintiff on the morning of the injury reported and began work at hatch number two. It was his duty to seize the rails as they were lowered through the hatch, guide them to a roller, push them to the proper place for storage in the vessel, and,then release the rope or chain with which they were lowered. This duty required him to walk upon the cover of the hatch between decks, as it was immediately beneath the upper hatch through which the rails descended, and petitioner was always looking up, as the rails were coming in rapid succession. While thus engaged in receiving and placing the rails, he stepped upon the hatch cover, when a section of it became unstable and tilted, precipitating him into the lower hold for a considerable distance, causing injuries to his person. It was alleged that the injuries resulted from the negligence of the defendant, and formed the basis for the recovery of damages, the particular negligence of the defendant alleged being: “(a) In not supplying to petitioner a safe place in which to work, in that the cover to hatch #2, of the lower hold, was not securely placed thereon because the strong-back was not used, but instead a wooden beam or support which enabled 'the sections of the cover to be jarred or slipped out of place and to fall in; said condition being known to the defendant, or in the exercise of proper care could and should have been known, as its duty to provide a safe place of work was non-delegable. (b) In failing to warn or notify petitioner of the unsafe condition of the hatch cover, which failure to warn is hereby expressly charged. (c) In failing to have a strong-back for use on said hatch, so that the same could have been safely and substantially covered; said strong-back being the requisite method of covering the hatch to insure a firm and safe covering when the sections are laid thereon. (d) In failing to use a strong-back in said hatch when the sections of the cover were placed thereon, and in the use of an appliance not intended for the purpose, and which left said hatch-cover unsafe because of the likelihood to be jarred or pushed out of position in the work incident to loading said vessel.”</p>

<p>Equitable petition. Before Judge Kimsey. Babun superior court. August 25, 1909.</p>

<p>Complaint. Before Judge Edwards. Paulding superior court. August 24, 1909.</p>

<p>Action, for damages. Before Judge Brand. Walton superior court. December 14, 1909.</p>

<p>Action upon bond. Before Judge Ellis. Fulton superior court. August 30, 1909.</p>

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. January 10, 1910.</p>

<p>1. The provisions of the Civil Code (1895), § 2545 (Civil Code (1910), § 3064), are applicable to guardians of lunatics, and confer authority on the judge of the superior court to grant an order for the sale for reinvestment, by the guardian of a lunatic, of the whole or any part of his ward’s estate.</p> <p>2. Service of the petition in cases of application for an order to sell for reinvestment by the guardian of a lunatic must be made upon the ward personally, when the latter is over the age of fourteen years, as in cases of application to sell for reinvestment by guardians of minors.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court-December IS, 1909.</p>

<p>Action for damages. Before 'Judge Bell. Fulton superior court. December 16, 1909.</p>

<p>Complaint for land. Before Judge Felton. Houston superior court. January 26, 1910.</p>

<p>Action for damages. Before Judge Morris. Gilmer superior court. October 21, 1909.</p>

<p>Action for damages. Before Judge Wright. Cobb superior court. November 24, 1909.</p>

<p>Equitable petition. Before Judge Eite. Bartow superior court. January 8, 1910.</p>

<p>Equitable petition. Before Judge Boan. Spalding, superior, 'court. October 30, 1909.</p>

Indictment for murder’. Before Judge Lewis. Jasper superior court. October 19, 1910. The defendant was convicted of the murder of Ide Price, and to the order of thé court overruling his motion for a new trial he' excepted. The evidence in behalf of the State, delivered upon the trial, was substantially as follows: W. F. Malone testified that at the time of the homicide he was at his son’s store, about 53 steps from the place where Price was killed.

<p>Indictment for murder. Before Judge Martin. Twiggs superior court. November 1, 1910.</p>

<p>Indictment for murder. Before Judge Brand. Gwinnett superior court. December 16, 1910.</p>

<p>Indictment for murder. Before Judge. Mitchell — motion for new trial before Judge Merrill. Lowndes superior court. December 28, 1910.</p>

<p>Indictment for murder. Before Judge. Mitchell — motion for new trial before Judge Merrill. Lowndes superior court. December 28, 1910.</p>

<p>Indictment for murder. Before Judge Worrill. Early superior court. December 15, 1910.</p>

<p>Indictment for rape. Before Judge Beagan. Pike superior court. December 26, 1910.</p>

<p>Equitable .petition. Before Judge Lewis. Hancock superior court. February 3, 1910.</p>

<p>Partition. Before Judge Lewis. Jones superior court. February 21, 1910.</p>

<p>Injunction. Before Judge Wbipple. Crisp superior court. June 24, 1910.</p>

<p>Habeas corpus. Before Judge Hammond. Richmond superior court. November 7, 1910.</p>

<p>Habeas corpus. Before Judge Meadow. Hart superior court. August 27, 1910.</p> <p>A writ of habeas corpus was sworn out before the ordinary of Hart county by C. I. Kidd, who contended 'that he was entitled to the custody of Willie Brown, a minor son of Henry and Wennie 'Brown. The sheriff took charge of the boy and kept him in jail pending the hearing. The ordinary, at the hearing, awarded the custody of the boy to C. I. Kidd. ' The parents, who were the respondents in the habeas-corpus proceeding, carried the case to 'the superior court by writ of certiorari. The material facts were as follows: Kidd of his own accord bought an old fi. fa. against Wennie Brown in favor of one Vickery. He had it levied, but, after some litigation, failed to realize on it. He secured a note for the amount of the fi. fa., which was signed by Wennie Brown, and indorsed by her husband, and her son, Walter Brown. On the same day that the note was executed, and to secure its payment, a contract was entered into and signed by Henry and Wennie Brown and by Kidd. It was as follows: “This contract entered into this the 29th day of March, 1909, between Henry Brown and Wennie Brown of the one part, and 0. I. Kidd of the other part, all of said State and.county, witnesseth, that said Henry Brown and Wennie Brown are indebted to said 0.1. Kidd in the sum of Eighty-one and no/100 dollars which they agree to pay by January 1st, 1910, together with interest at the rate of eight per cent, per annum from this date and ten per cent, attorney’s fees; and they hereby agree to hire their son Willie Brown, who is fourteen years of age, to said C. I. Kidd for a period of two years, beginning January 1st, 1910, at the rate of five dollars per month, to secure the above-stated amount, together with interest and attorney’s fees above stated, as well as 'all other advancements made from time to time during the period above stated to the said Willie Brown for everyday wearing apparel and other necessaries which the said 0. I. Kidd may see proper to furnish, and that the said Henry Brown and Wennie Brown agree for said O. I. Kidd to retain the monthly wages of their son until the amounts for which they have obligated themselves as above stated, together with whatever advancements are made in pursuance of this contract, are paid in full; and in order that this contract may be carried out according to all intents and purposes, the said Henry Brown and Wennie Brown agree for said Kidd to have as full control over their said son as they have as parents, and to hire him to whomsoever he wishes and at whatever price he wishes, provided, it be not less than five dollars per month; and it is further agreed that if for any reason the said Willie Brown is prevented from performing the services for the time specified in this contract* then the said Henry Brown shall begin work from the time of said failure of said son and work at ten dollars per month for said Kidd until all the indebtedness above mentioned is fully paid. Or the said Henry Brown and Wennie Brown shall furnish another boy at a reasonable price as a substitute for the boy first mentioned. The said C. I. Kidd agrees to. pay the above-stated amount as alleged, and -otherwise carry out the provision of this contract as is intended herein for him to do. The said Henry Brown and Wennie Brown hereby make oath that they have not hired said son to any other person or persons for the period or any part thereof covered by this contract, and the said Henry Brown makes oath that he is not under a contract with anybody for the period or any part thereof covered by this contract.” The note was not paid when it became due. Some months afterwards Kidd tried to get the parents to let him have the boy under the terms of the contract. This they refused to do, and denied that they had any such contract, claiming that they were deceived as to the character of the paper which was presented to them. On this subject there was conflicting evidence. The judge of the superior court reversed the judgment of the ordinary, and rendered a final judgment, awarding the custody of the child to his parents. Kidd excepted.</p>

<p>Petition for injunction. Before Judge Kinsey. Habersham superior court. June 15, 1910.</p>

Certified question; from Court of Appeals. 2753. The Court of Appeals, desiring instructions necessary to a proper determination of a .case, pending in that court, certified to the Supreme Court as follows: “The indictment charges that the defendant, Cureton, did, in the county of the prosecution,/sell and barter for a valuable consideration alcoholic, spirituous, malt, and intoxicating liquors, by then and there, for a valuable consideration from the purchasers, delivering…

<p>Petition for injunction. Before Judge Maddox. Floyd superior court. June 29, 1910.</p>

<p>1. The court committed no error in admitting testimony of statements made by the defendant.</p> <p>2. Proof that a witness made previous statements contradictory to the statements he made while testifying is admissible, though the witness testifies that he does not remember whether or not he made such previous contradictory statements. • ■</p> <p>3. The credibility of a witness is to be determined by the jury; and it is error for the court to instruct the jury that if they believe a witness has made previous statements contradictory to his testimony delivered on the trial, such testimony should be disregarded unless it “is corroborated by other credible evidence, or is corroborated by the proven circumstances in the case.”</p>

<p>Indictment for murder. Before Judge Charlton. Chatham superior court. August 17, 1910.</p>

<p>1. The evidence diij not warrant a charge on the subject of voluntary manslaughter, and the court committed no error in failing to charge thereon.</p> <p>2. The charges excepted to, and referred to in the second division of the opinion, did not embody any error requiring a new trial.</p> <p>3. The evidence was sufficient to support the verdict.</p>

<p>Indictment for murder. Before Judge Freeman. Heard superior court. December 20, 1910.</p>

Indictment for murder. Before Judge Seabrook. Liberty superior court. December 17, 1910. The defendant was convicted of the murder of Gilbert Williams, and. excepted to the order of the court overruling Ms motion for a new trial. There was testimony in behalf of the State, substantially as follows: Eight or ten men, including the defendant and the deceased, were in a house together.

Action on bond. Before Judge Lewis. Baldwin superior court. January 11, 1910. Bynum Andrews gave to H. J. & J. T. Finney two mortgages on personal property, one on certain cotton and the other on a mule and a Lorse. Each of these was foreclosed, and the executions issued and were levied on the mortgaged property. To each levy the defendant interposed an affidavit of illegality, and gave a forthcoming bond with B. L. Wall as surety.

<p>Complaint for damages. Before Ju'dge Lewis. Baldwin superior court. January 13, 1910.</p>

<p>Equitable petition. Before Judge Conyers. Glynn superior court. February 16, 1910.</p>

<p>1. Under section 3 of the act approved November 29, 1902 (Acts 1902, p. 332), the deputy clerk of council of the City of Atlanta is authorized to sign executions issued by authority of the municipality.</p> <p>2. The levy of an execution should be signed by the levying officer. If a deputy signs the name of the levying officer under the latter’s express direction, and the levying officer specially adopts the act of his deputy in signing his name to tlie levy, and proceeds to enforce the levy as his own act, tlie levy is not invalid because the levying officer’s name is signed by his deputy.</p> <p>3. An execution in rem against specific property may be levied. on the entire property, though the value of the property may greatly exceed the amount of the execution; but if the property be susceptible of division, it should be sold in parcels in such a way as to discharge the execution with as little loss to the owner of the property as possible.</p> <p>4. An abutting-land owner upon whose property, a street assessment is made is not entitled as a matter of right, under section 150 of the Code of Atlanta, to have his assessment divided into installments, unless the same has been transferred to the contractor doing the work.</p>

<p>Mandamus. Before Judge Morris. Gilmer superior court. July 9, 1910.</p>

<p>Indictment for murder. Before Judge Edwards. Polk superior court. November 2, 1910.</p>

<p>1. Three defendants were jointly indicted and tried for murder.; the evidence was sufficient to show concert of action in killing the person named in the indictment, and authorized an instruction on the law of conspiracy and of principals in the first and second degrees.</p> <p>2. Where two or more persons aré jointly indicted in a single count for murder, and there is no dispute in the evidence that one of them inflicted the mortal wound under circumstances which made him guilty of murder, there can be no conviction under that indictment, as to the others, of assault with intent to murder, based on an assault independent of that which caused the death.</p> <p>3. The charge of the court was comprehensive and fair; the evidence did not authorize a charge on the .law of voluntary manslaughter; the verdict was authorized by the evidence, and no error of law appears in the record.</p>

<p>Indictment for murder. Before Judge Freeman. Coweta superior court. November 16, 1910.</p>

<p>Indictment for murder. Before Judge Freeman. Coweta superior court. November 16, 1910.</p>

<p>Indictment for murder. Before Judge Martin. Laurens superior court. November 5, 1910.</p>

<p>Indictment for murder. Before Judge Morris. Cobb superior court. January 16, 1911.</p>

Attorney’s lien. Before Judge Lewis. Greene superior court. January 25, 1910. Th.e plaintiff filed a suit on September 13, 1907, returnable to the February term of the superior court of Greene county, which convened on February 10, 1908. The petition, with process attached, was served upon the defendant on January 25, 1908, which was in due time before the appearance term.

<p>Equitable petition. Before Judge Lewis. Jasper superior court. June 1, 1910.</p>

<p>Action for damages. Before Judge Lewis. Jones' superior court. April 20, 1910.</p>

<p>1. In a suit against a railway company to recover damages on account of the burning of property, caused by fire negligently set out, the plaintiff alleged that the fire was caused by sparks from an engine of the defendant, and that the defendant was negligent in not equipping its engine with sufficient appliances for the purpose of arresting sparks arising from its furnace, and also in the manner of operating its engine. On the latter subject the allegation was as follows: “That said defendant company was further .negligent in the setting out of fire from its engine, thus causing the destruction of the property of petitioners, to their hurt and injury as above set forth, in that its servants, agents, and employees in charge of the running and operating of its engine negligently caused the same to throw out unnecessarily the sparks of fire which caught on and burned said property, by the improper and negligent use of the exhaust or blower of said engine. That if the said engine had been operated in a careful manner and in the exercise of ordinary care and diligence, the sparks which 'were emitted from its engine and set fire to and destroyed petitioners’ property would have been prevented.” Held,- that the allegation of negligence in the manner of operating the engine was sufficiently specific, and it was error to sustain a demurrer to the averments that the fire was caused “by the improper and negligent use of the exhaust or blower of said engine,” and that, “if the said engine had been operated in a careful manner and in the exercise of ordinary care and diligence, the sparks which were emitted from said engine and set fire to and destroyed petitioners’ property would have been prevented,” and thus confine the plaintiffs to the allegation of negligence in not providing a proper appliance for arresting sparks.</p> <p>2. None of the grounds of the motion for a new trial were such as to require a reversal.</p>

<p>Complaint for land. Before Judge Gilbert. Harris superior court. June 30, 1910.</p>

<p>1. A cemetery is not per se a nuisance; and a judgment by tbe court refusing an injunction, sought to restrain the location by a municipal corporation of a cemetery in a particular locality, will not be disturbed where the evidence is conflicting upon the question as to whether or not the location of a cemetery in that particular locality will endanger the health of the residents upon the lands contiguous to the cemetery because of the contamination of water and. atmosphere which it is alleged would ensue from the establishment of a cemetery in the locality referred to.</p> <p>2. Where certain persons sought to intervene and become parties to an equitable proceeding instituted to obtain an injunction, and the court upon interlocutory hearing refused the injunction, and the plaintiff in the original petition sued out a bill of exceptions, to which he and the defendants were the only parties, an exception in such bill of exceptions, by those who sought to intervene, to an order of the court refusing to allow the intervention, raises no question for decision, as it was not competent for the intervenors to assign error upon any ruling of the court in a bill of exceptions to which they were not parties.</p> <p>3. .Under the ruling in the case of Atlantic Coast Line Railroad Go. v. State, 135 Ga. 545 (69 S. B. 725), the court did not err in excluding evidence offered to show that the proper notice had not beep published of tile intention to ask local legislation.</p> <p>4. Questions raised by exceptions to the rulings of the trial court which are not urged or referred to in the brief of counsel for plaintiff in error will be treated as abandoned.</p>

<p>Where an interlocutory judgment was rendered in pending proceedings which show on their face that the court rendering the same had jurisdiction of the person and subject-matter, a third person, without becoming a party to such proceedings, can not attack the judgment by motion, or petition, on the ground that the judgment is void because the court rendering it had no jurisdiction over the person of the defendant.</p>

<p>The petition in this case was a suit ex contractu for the value of the" property of the plaintiff, taken and carried away by the defendant without the plaintiff’s consent, without alleging that the defendant had converted the same into money, and, under the ruling in Woodruff v. Zabcm, 133 Oa. 24 (65 S. E. 123, 134 Am. St. R. 186), the petition was subject to general demurrer.</p>

<p>1. Upon the trial of a suit for damages against a railroad company by one for injuries sustained while a passenger on one of the trains of the company, the latter in writing duly requested the court to charge as follows: “Plaintiff must recover upon proof of the acts of negligence and carelessness set out in the declaration, and proof of any other act or acts of negligence or carelessness of the employees of the defendant will not authorize a recovery, unless the jury is satisfied from the evidence that the acts of negligence set forth in the declaration have.been satisfactorily proven.” Held, that the charge requested was not a correct charge, because, if given, it might have led the jury to believe that the plaintiff would be entitled to recover if the defendant was guilty of any act of negligence other than- those set out in the plaintiff’s declaration and the plaintiff’s injuries were caused thereby, if the jury believed that the acts of negligence charged in the declaration had been proved. Even if the charge requested had been entirely accurate, the refusal to give it would not have been error requiring a new trial, in view of the instructions given by the court to the jury in other portions of his charge, to wit: “I charge you in this case that-if the plaintiff recovers, he should recover on the allegations of negligence set ■ out in the plaintiff’s petition.”</p> <p>2. The charge referred to in the 2d division of the opinion was not error.</p> <p>3. Nor was there error in the admission of testimony referred to in the 3d division of the opinion.</p> <p>4. The evidence was sufficient to support the verdict, and the court committed no error in refusing a new trial.</p>

<p>1. The policy of the legislature, as declared in the several enactments relating to the establishment, maintenance, and control of the public schools of a county, is to devolve on the county board of education supervision of the schools and the duty of administering the school law. To that end the county board of education is constituted a special tribunal for hearing and determining any matters of local controversy in the administration of the school law, with a right of appeal to the State school commissioner and the State board of education. Where a county is laid off into school districts under the act of 1906 and a controversy arises as to the location of the school site in a particular district, this controversy is determinable by' the special tribunal fixed by law, viz., the county board of education, and a court of equity will not usurp jurisdiction but will remand -the parties to their legal remedy.</p> <p>2. Necessarily the county board of education is vested with some discretion in the administration of the school law, and, where neither district has adopted the provisions of the school law as to local taxation, they may allow pupils in one district to attend a school in an adjoining district where it is more convenient and accessible to them, and appropriate the proportionate share of the public-school fund to which such children are entitled to the support of the school which they actually attend. Then-action is not illegal in this respect, and any complaint as to its propriety must be made to the county board of education.</p> <p>3. The court did not abuse its discretion in refusing a temporary injunction in this case.</p>

<p>Indictment for murder. Before Judge Park. Baker superior court. January 4, 1911.</p>

<p>Indictment for murder. Before Judge Freeman. Carroll superior court. December 30, 1910.</p>

The Court of Appeals, tinder the certificate of its clerk, has transmitted to this court the following: In the foregoing case pending in this court on a writ of error from the city court of Dawson, the Court of Appeals desires the instruction of the Supreme Court as to the following questions of law (partly constitutional), necessary to a proper determination of the case: The city court of Dawson was established by an act approved December 25, 1898 (Acts 1898, p. 310): On…

<p>TnrbV.t-inp.nt, for murder. Before Judge Roan. Fayette superior court. December 3, 1910.</p>

<p>Complaint for land. Before Judge Lewis. Jasper superior court. June 1, 1910.</p>

<p>Complaint — demurrer. Before Judge Gilbert. Muscogee superior court. February 1, 1910.</p>

<p>Petition for mandamus. Before Judge Lewis. Morgan superior court. October 25, 1910.</p>

<p>Action for damages. Before Judge Gilbert. Muscogee superior court. May 31, 1910.</p>

<p>1. Where an execution for unpaid taxes was issued by the comptroller-general against a certain tract of unreturned wild land, under the act of February 28, 1874 (Acts 1874, p. 105), and a sale of the land was made thereunder, and the execution was returned to the comptroller’s office with the official entries thereon, it became an office paper, and a certified copy of such execution and entries was admissible in evidence in < lieu of the original.</p> <p>2. The inclusion in a form of sheriff’s deed, in describing the tax execution, of the expression “transferred to . . , of . . county,” did not vitiate the sale, or render the deed inadmissible in evidence, where it appeared from the entries on the execution that no transfer of it was in fact made, and no evidence to the contrary was adduced.</p> <p>3. Where a deed, purporting to have been made by a corporation, recited that its corporate name was signed by the president and the corporate seal attached by the secretary, and the name of the corporation was signed by the president and followed by “(L..S.),” this was prima facie evidence of authority on the part of the president to execute such deed.</p> <p>(a) If the deed was duly recorded and lost, a certified copy from the record was admissible in evidence, without further proof of- the authority to execute it.</p> <p>4. Under the act of February 28, 1874 (Acts 1874, p. 105), amended by the act of March 2, 1875 (Acts 1875, p. 119), the prescribed advertisement of unreturned wild or unimproved land was necessary before the issuance of execution for the tax assessed against it. An execution issued without such precedent advertisement was void, and no valid sale could be made thereunder.</p> <p>5. If the comptroller-general failed to publish the requisite notice as to a lot of wild land for one year, and later issued an execution for a single amount as including the taxes due on the lot for that and two other years, a sale under such execution was invalid.</p> <p>6. Where a legislative act required the publication of a notice “in one newspaper at the capital” once a week for four weeks, as a condition precedent to the issuance of an execution for taxes against a tract of wild or unimproved land, this requirement was not met by the publication of such notice twice in a daily newspaper and twice in a weekly, though both were published by the same publisher, and the weekly was made up largely of news items taken from the daily, the two having different advertising accounts, being sent to different sets of subscribers, mainly in different localities, and being shown to be like two separate newspapers, except as stated.</p>

<p>Complaint. Before Judge Whipple. Irwin superior court. June 22, 1910.</p>

<p>1. A father who has neither forfeited nor relinquished his parental power is entitled to the proceeds of the labor of his minor son, and the minor can not defeat his father’s right to the same by assigning his wages to a third person.</p> <p>2. Where a father is entitled to recover the wages of his minor son, and such wages are voluntarily paid by the minor’s employer to the father, such payment is a good defense to a suit against the employer by an assignee of the minor.</p>

Complaint. Before Judge Rawlings. Johnson superior court. March 23, 1910.

<p>Where a person instituted habeas-eorpus proceedings to secure the release of one confined in jail, alleging that his detention there was illegal because the commitment was illegal and void, being based upon a warrant which itself- was defective and void, and upon the hearing of the habeas-eorpus case the trial judge refused to order the discharge of the person from custody but remanded him to jail, and a writ of error to this order was sued out, the same will be dismissed where it appears that, subsequently to the order complained of, the person was indicted by the grand jury of the county for the same offense for which he had been committed, and upon giving bond had been released from custody; although a decision in the case would determine which of the parties to the habeas-eorpus proceedings was liable for costs.</p>

<p>Refusal of injunction. Before Judge Morris. Cobb superior court. July 2, 1910.</p>

<p>Injunction. Before Judge Fite. Bartow superior court. September 26, 1910.</p>

<p>Action upon insurance policy. Before Judge Meadow. Morgan superior court. March 8, 1910.</p>

<p>Complaint for land. Before Judge Worrill. Early superior court. April 6, 1910.</p>

<p>Money rule. Before Judge Morrill. Randolph superior court. June 7, 1910.</p> <p>On November 8th, 1909, in the superior ■ court of Randolph county C. F. Barry recovered judgment in an attachment case against George L. Barry, and on the same day caused execution to issue and to be entered on the general execution docket. On November 9th, 1909, the sheriff levied it upon certain property of the defendant, which was regularly sold on December 7th, 1909. After the sale, on motion of the plaintiff in fi. fa., 'a rule was issued against the sheriff, requiring him to show cause why he should not pay the funds derived from the sale of the property to the plaintiff in fi. fa. In liis answer the sheriff set up that a justice-court fi. fa. issued on the 23rd day of March, 1893, in favor of M. R. Curry against George L. Barry, and transferred to E. R. King on the 11th day of January, 1909, had been placed in his hands and levied upon the property, and that the money in his hands was produced by a sale of the .property under both executions, and also that before the sale still another justice-court fi. fa. in favor of Rawls, Perry & Webb against George L. Barry was placed in his hands with instructions that the same constituted a lien upon the proceeds of the sale of the property, the last fi. fa. having been issued on November 20th, 1892. Having thus answered, the sheriff prayed the court to be instructed “how to distribute said money arising from the sale of said property, or to whom same shall be paid, whether to the plaintiffs in the said justice-court executions, or to the plaintiffs in this case.” The rule against the sheriff was made returnable May 21st, 1910. Service'was acknowledged May 14th, 1910, by the sheriff individually, and also by attorneys at law for E. R. King, and for Rawls, Perry & Webb. On the same day an order was signed by the judge reciting that' by agreement “of all parties to this proceeding” it is ordered that the questions presented therein be heard and passed upon by the judge of said court at chambers, on May 21st, 1910, at Cuthbert, Ga. This order was consented to by the attorneys for C. E. Barry, the plaintiff in the attachment execution, who instituted the money rule against the sheriff, and also by the attorneys for E. R. King, and attorneys for Rawls, Perry & Webb. On the day set for the hearing the case was submitted on an agreed statement of facts, which was in conformity with all that is above stated, and showed the following additional facts: The amount realized from the sale was insufficient to discharge the attachment execution in favor of O. E. Barry. The justice-court fi. fa. issued March 23d, 1893, in favor of W. R. Curry, was entered on the general execution docket on March 29th, 1893,. but never on the execution docket of the superior court, and contained an endorsement whereby, on January 11th, 1909, the plaintiff assigned it to E. R. King. It also contained an entry of levy by the sheriff, dated November 2d, 1909. The other justice-court fi. fa. which was issued November 24th, 1892, in favor of Rawls, Perry & Webb, was entered on the general execution docket on December 9th, 1892, but never on the execution docket of the superior court. The original was lost, and an alias was issued December 7th, 1909. The defendant in fi. fa. left the State of Georgia in 1894, or 1895, and has not returned to this State to reside since that time. Upon this statement of facts the judge ordered that “all sums of costs accruing in said attachment case of C. E. Barry against Geo. L. Barry, as well as the costs on this rule proceeding, be first paid out of the fund admitted by the sheriff in his answer to be in his hands, and the balance paid over to” the attorneys for the plaintiff in attachment, “to be credited on his execution and judgment against Geo. L. Barry.” The sheriff excepted to the order, on the ground that the court erred “in awarding said money to C. 3?. Barry, and in passing said order awarding said money to C. F. Barry, and in not awarding it to the plaintiffs in the justice-court executions in the hands of the sheriff.”</p>

<p>Action for breach of contract. Before Judge Worrill. Banclolpli superior court. July IS, 1910.</p>

<p>Complaint. Before Judge Park. Grady superior court. March 7, 1910.</p>

<p>1. Where an owner of land executed to his son a deed of gift, conveying the property in-trust for the benefit of the grantee and his children during his life, with remainder to the surviving children after his death; and where an execution against the maker, antedating the deed of gift, was levied on the land, and a sheriff’s sale was had thereunder, if such sale ivas valid it freed the land from any trust or estate created by the deed of gift, and the- purchaser at the sheriff’s sale acquired the title of the grantor as it stood before the making of the deed of gift.</p> <p>2. Although at such a sale the son of the defendant in execution, who was also the grantee in the deed of gift, bid in the property individually and transferred his bid to another, to whom the sheriff executed a deed, this would not of itself render the sale void, or make the title acquired by the person tq whom the sheriff’s deed was executed subject to the trust, where no fraud or notice to him of any trust estate appeared, and he was a bona fide purchaser for value.</p> <p>3. In Keaton V. Baggs <& Stephens, 53 Ga. 226, Pettijohn v. Liebsoher, 92 Ga. 149 (17 S. E. 1007), and Bourquin v. Bourquin, 120 Ga. 115 (47 S. E. 639), the claim which was enforced against the property was against the trustee or the trust estate, and one which it was the duty of the trustee to pay, or from which he should have sought to protect the trust estate. Here the execution was against the person who created the trust. The action was also one of complaint for lan'd, not an equitable proceeding.</p> <p>4. Although the purchaser at the sheriff’s sale may have agreed with the grantee under the trust deed, as an individual, to sell to him the property, and upon- payment of the purchase-price may have made a conveyance to him, this would not alone serve to reinstate the trust, no fraud or breach of trust appearing.</p> <p>5. Where such a conveyance was made, one who acquired title under the grantee bona fide, for value, and without notice, would not be affected by any right which might have existed on the part of a beneficiary under the original trust deed to set up a failure of duty on the part of the trustee to protect the trust estate from sale, if there were any.</p> <p>6. In this State a levy on land is made by means of the official entry thereof on the execution, and not by seizure.</p> <p>7. The requirement of Civil Code (1910), § 6031, that notice of the levy shall be given to the tenant in possession within five days after the levy is made, does not contemplate that the entry of levy must itself state that notice has been given, in order to render it valid.</p> <p>8. If land is bid in at a sheriff’s sale by one person, who transfers his bid to another, and the sheriff makes a deed to the latter, this does not render the sheriff’s sale invalid.</p>

<p>Garnishment. Before Judge Mitchell. Lowndes superior court. May 28, 1910.</p>

<p>Action for damages. Before Judge Mitchell. Lowndes superior court. May 17, 1910.</p>

<p>Equitable petition. Before Judge Parker. Coffee superior court. March term, 1910.</p>

<p>Motion, to enter judgment. Before Judge Pendleton. Fulton superior court. December 27, 1910.</p>

<p>1. The court erred ill failing to instruct the jury as pointed out in the 1st division of the opinion, and in giving the charge set out therein.</p> <p>2. Under the evidence in this case, the question as to whether or not, at the time the suit for divorce was instituted against the plaintiff in error, he was a resident of Eulton county, was one for determination by the jury.</p>

<p>1. Where, two days before an order revising a previous order granting temporary alimony was signed, the court, at the conclusion of the evidence introduced upon the hearing, orally announced an opinion wherein he stated that the previous order would be revised because of the existence of specified facts, and the bill of exceptions recites that the second order excepted to was granted “in accordance with said opinion,” and the order revising the previous order granting temporary alimony recites that “after hearing and considering the testimony submitted and the argument of counsel for plaintiff and 'defendant, it is considered, ordered, adjudged, and decreed” that the previous order be revised in specified particulars, and there is nothing in the second order indicating that it was granted on any special ground, it will not be disturbed, if any facts other than those referred to above ■ appear from the testimony submitted to the court upon the hearing which were sufficient to authorize the court to grant the same.</p> <p>2. The court has authority to modify or revoke an order granting temporary alimony to a wife, though such order was passed by consent of the husband and wife and in accordance with an agreement between them providing for a certain amount to be paid to the wife by the husband, and providing that the agreement might be made the judgment of the court and enforced by contempt proceedings, or otherwise, “as is usual in the enforcement of decrees for alimony.”</p> <p>3. The authority of the court to revoke or modify an order granting temporary alimony is not confined to cases in which there has been a change in the condition or circumstances of the parties since the granting of the order.</p> <p>(а) Prior to the grant of a total divorce, adultery on the part of the wife subsequent to the grant of temporary alimony, or prior thereto but unknown to the husband until after the granting of the order for temporary alimony, is a sufficient cause to warrant the court in modifying or revoking the order.</p> <p>(б) Where. the evidence material to an understanding of an alleged error complained of is not brought to this court, an assignment of error necessarily involving a consideration of such evidence can not be considered.</p>

<p>Abuse of legal process. Before Judge Pendleton. Fulton superior court: June 3, 1910.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. June 27, 1910. Alexis A. Lyon brought the present action against Charles Lawson and George W. Lyon.

<p>’Petition for mandamus. Before Judge Meadow. Wilkes superior court. July 11, 1910.</p>

<p>Complaint for land. Before Judge Rawlings. Emanuel superior court. January 17, 1910.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. June 24, 1910.</p>

<p>Complaint. Before Judge Kimsey. Rabun superior court. February 28, 1910.</p>

<p>Complaint. Before Judge Kimsey. Habersham superior court. March 9, 1910.</p>

<p>Complaint for damages. Before H. H. Dean, judge pro hac vice. Lumpkin superior court. July 26, 1910.</p>

<p>Complaint. Before Judge Morris. Fannin superior court. May 25, 1910.</p>

<p>Complaint. Before Judge Fite. Dade superior court. January 15, 1910.</p>

<p>1. Where suit is brought by the holder of a promissory note payable to the order of the payee, and indorsed by him to the plaintiff without recourse, and the defendant in his plea admits the execution of the note and its ownership by the plaintiff, the burden is on the defendant to establish his defense,' and consequently, he is entitled to open 'and conclude.</p> <p>2. It is not cause for a new trial that the court read in charge to the jury a code section, part of which was applicable to the ease and part not; it not appearing that the reading of the inapplicable part was calculated to mislead the jury or was prejudicial to the rights of the .losing party.</p> <p>3. A charge that “counsel may differ among themselves as to what the evidence is, but that will not control you; you look to all the evidence of the witnesses and determine what the truth is, and arrive at the truth as best you can in this transaction,” is not erroneous as excluding consideration of the documentary evidence, where it appears from the context that the court’s instruction concerned a difference between counsel as to the testimony of witnesses, and he further charged the jury that their verdict was to be reached after a consideration of all the evidence.</p> <p>4. The charge was fair and comprehensive, and adapted to the evidence, and the evidence was sufficient to support the verdict.</p>

<p>Indictment for murder. Before Judge Jones. Hall superior , court. February 3, 1911.</p>

<p>1. Wliere on liis trial for murder the defendant admitted that he bore the same name as the alleged slayer, but denied any knowledge of the homicide, and there was evidence that the defendant was the actual slayer, testimony of a witness, that immediately after the homicide two persons, one of them corresponding in appearance with the defendant, came near the house of witness, located about 350 yards from the scene of the homicide, and while there the companion of the defendant told the witness the name of the defendant and that he was the slayer, under circumstances authorizing an inference that the defendant heard him, was not open to the objection that the same was inadmissible because it did not positively appear that the defendant heard the statement of his companion.</p> <p>2. The admission of immaterial evidence which is not calculated to harm the defendant is not cause for a new trial.</p> <p>3. The evidence did not authorize an instruction on the law of justifiable homicide in defense of habitation.</p> <p>4. Where on a trial for murder the evidence authorized an inference that the killing was in resistance of an arrest by an officer and posse without a warrant, and the court correctly charged the law of voluntary manslaughter and justifiable homicide, it is no ground for new trial that the court failed to concrete the charge with reference to a particular phase of the case, there being no written request therefor.</p> <p>5. The defense of alibi was made only by the defendant’s statement; and it was not error for the judge to omit to charge thereon in the absence of a written request.</p> <p>6. The charge covered all the main and substantial issues in the ease, and it is not ground for new trial that the coilrt failed to charge the law relative to threats made by the deceased against the defendant.</p> <p>7. Tlie- evidence supported the verdict.</p>

<p>Action for damages. Before Judge Gilbert. Taylor superior court. February 17, 1910.</p>

<p>■ Claim. Before Judge Frank Park. Grady superior* court. July 9, 1910.</p>

<p>Motion for new trial. Before Judge Conyers. Glynn superior . court. June 25, 1910.</p>

<p>Complaint. Before Judge Parker. Glynn superior court. March 8, 1910.</p>

<p>1. The evidence in the present record is substantially the same as that contained in the record when the case was formerly before the court (129 Ga. 727 (59 S. E. 774)), and it was there adjudged that the evidence did not involve manslaughter.</p> <p>2. Where the defendant puts his character in issue, it is allowable on cross-examination to ask a witness called to establish his good character if the witness on a certain occasion came upon the scene immediately after the defendant had made a serious attack with a weapon upon another person, who charged the defendant in his presence with an attempt to kill him.</p> <p>3. In giving requested instructions, the court should do so in such a manner as to impress the jury that such are emanations from the court and are to be considered as part of the court’s instructions on the law of the case. This is best accomplished by incorporating such requests at some appropriate place in the charge, without stating that the requests were made by a party to the case. While the practice is not commended, a new trial will not be granted solely because the court near the conclusion of his charge picked up certain written requests and read them to the jury, with the preface, “The defendant has requested the court to charge you the following, which I will read to you.”</p> <p>4. Where the court erroneously instructs the jury and subsequently specifically calls their attention to such erroneous instruction, and corrects the error, the original error is cured.</p> <p>5. The charge relating to the sufficiency of evidence as corroborative of a confession was not erroneous.</p>

<p>Trover'. Before Judge Brand. Gwinnett superior court. January 22, 1910.</p>

<p>Indictment for murder. Before Judge J. B. Park. Baldwin superior court. March 20, 1911.</p>

<p>Indictment for murder. Before Judge Brand. Oconee superior court. March 2, 1911.</p>

<p>Injunction. Before Judge Conyers. Glynn superior court. February 11, 1911.</p>

Petition for injunction. Before Judge Frank Park. Decatur superior court. August 16, 1910. Tbe Bainbridge Telephone Company was incorporated by the superior court of Early county, on December 23, 1904. It constructed and operated a telephone system in the city of Bainbridge and in the towns of Brinson and Climax, all located in Decatur county. The physical properties of the company were incumbered by two mortgages.

Interpleader. Before Judge Worrill. Early superior court. January 21,' 1910. ' Byron Collins, as administrator of the estate of J. E. Cobb, deceased, instituted suit to marshal the assets of .the estate, and to compel certain interested parties to interplead. Among those who interpleaded were Mrs. M. C. Cobb, the widow of deceased, and W. A. Hall, a mortgage creditor of the deceased, and W. T. G. Cobb, a claimant to certain of the property of deceased.

Complaint. Before Judge Littlejohn. Schley superior court. May 19, 1910. The Georgia Cotton Company in its petition alleged that the defendants, H. W. Hogg and R. E. Hill, were indebted to plaintiff, a corporation, in a specified amount on account of the breach of a contract for the sale of fifteen bales of cotton. Copies of certain correspondence relied on as constituting the contract were made a part of the ^petition, and were as follows: “Americus, Ga. 12th May, 1909.

Complaint for land. Before Judge Whipple. Wilcox superior court. March 24, 1910. Bebecca Gibbs instituted suit against Henry Land in behalf of herself and of Emma Gibbs (by marriage Emma Young), G. B. Gibbs, Anna Gibbs, L. D. Gibbs, W. T. Gibbs, and S. Y., Gibbs, for recovery of a certain tract of land and mesne profits.

<p>1. The proper inquiry in all applications for relief against mistake is, does the instrument contain the true agreement of the parties? Is it what the parties intended it should be?</p> <p>2. There being no evidence that the plaintiff was lacking in proper diligence in connection with the mistake in the execution of the deed, it was not erroneous for the court to omit an instruction respecting his negligence.</p>

<p>Action for damages. Before Judge Reagan. DeKalb superior court. March 9, 1910.</p>

<p>An action brought in a State court by a resident plaintiff against a nonresident railroad corporation and certain of its servants, some of whom are residents, jointly, to recover damages in excess of $2,000 on account of alleged personal injuries to the plaintiff, involves no separable controversy between the plaintiff and the non-resident defendants, entitling the latter to remove the cause on that ground to the circuit court of the United States, where the declaration states a prima facie case of joint and concurrent liability against all of the defendants.</p> <p>(a) Even though one of the defendants may have been alleged, in the petition for removal, to have been fraudulently joined for the purpose of defeating the right of removal, this will not destroy the right of the State court to retain a ease in which there remains a proper party defendant who resides in its jurisdiction and who is jointly liable with the other defendants sued for the injuries of the plaintiff.</p>

<p>A consignee having no special or general property in goods consigned to him, and incurring no risk from their transportation, can not maintain against the carrier an action ex delicto for loss or damage to the goods in transit. •</p>

<p>1. An equitable action was brought by a man, alleging, that, by a deed absolute on its face, he had conveyed land to his wife to secure an indebtedness, which he had paid off; that she had destroyed the security deed, supposing that this reinvested him with title, and had subsequently made to him a conveyance in the form of a deed of bargain and sale, but without an order of court approving it; that subsequently she had conveyed the land to her daughter by deed of gift, which the plaintiff sought to cancel as a cloud on his title. Held, that the grantee in the deed of gift was an assignee or transferee of the title, within the meaning of the Civil Code (1910), § 5858, par. 1, and the plaintiff was incompetent, as a witness to testify to transactions between himself and his deceased wife.</p> <p>2. The evidence failed to sustain the allegations of the petition, and there was no error in granting a nonsuit.</p>

<p>Action for'damages. Before Judge Conyers. Camden superior court. April 5, 1910.</p>

<p>Eviction'. Before Judge Conyers. Glynn superior court. March 31, 1910.</p>

<p>1. Where a paragraph in a petition contains both relevant, and irrelevant allegations, it will be purged of the irrelevant matters on special demurrer pointing out such; but if the demurrer goes to the paragraph as a whole, without specification of the irrelevant matter, the demur-rant can not complain that the entire paragraph was not stricken.</p> <p>2. According to the plaintiff’s testimony, she was a passenger on defendant’s road and entitled to continuous passage from B. to E. She was accompanied by a small child' and carried a valise. The terminal point of the train upon which she traveled was Josup, where she was to change cars. She was told by the conductor as the train was approaching the station of Odessa, which was within five miles of Jesup, that this was the place for her to get off. The plaintiff alighted as directed, and did not discover her mistake until after the train left. There were no station facilities, and there were some negroes near by. It was about ten o’clock at night, and she became frightened because she was apparently without protection or a place to spend the night. She inquired of the negroes for direction to a house where she could spend the night; they directed lier to a place, and on the way there she met a white youth, who invited her to spend the night with his mother, by whom she was hospitably entertained, and on the following morning she continued her journey to destination; the railway company accepting her original ticket. If the jury should find these circumstances to be true, then the plaintiff would be entitled to compensatory, but not to punitive damages.</p> <p>{a) Even if the plaintiff had been entitled to punitive damages, the charge that the jury could consider the worldly circumstances of the parties in assessing such damages was erroneous.</p>

Equitable petition. Before Judge Bell. Eulton superior court. January 29, 1910.

<p>1. One is liable in an action for malicious abuse of civil process who fraudulently procures a judgment upon a spurious claim, causes a fi. fa. to issue thereon, and directs the seizure of the plaintiff’s property by a levying officer, which is averted only by the payment of the fraudulent judgment by the plaintiff’s wife during his absence.</p> <p>2. Allegations respecting the manner in which a judgment was fraudulently obtained, and the manner in which the payment of the same was exacted, are not irrelevant in a suit of the character described in the preceding headnote.</p> <p>3. Where a corporation is sought to be made liable in a tort action for the conduct of its agent, an allegation that such agent was “the agent in charge of” the office of the corporation sufficiently identifies the agent upon whose conduct the plaintiff in part bases his right to recover.</p>

<p>Certiorari. Before Judge Ellis. Fulton superior court. January 29,1910.</p>

<p>Equitable petition. Before Judge Eelton. Bibb superior court. June 6, 1910. ' %</p>

<p>Injunction. Before Judge Meadow. Elbert superior court. December 24, 1910.</p>

<p>1. Where a suit against a corporation is brought on account and an itemized statement thereof is attached to the petition, it is not necessary for the plaintiff to set forth in the petition the grounds upon which he contends that the defendant is liable to pay him the account.</p> <p>2. One dealing with a special agent is bound to take notice of the extent of his authority.</p> <p>(a) A physician who, under a written contract between him and a railroad company, is thereby employed to give first medical attention to persons injured in the operation of the road of the company when ordered by it to attend them, but by the terms of the contract of employment is prohibited from admitting any such persons “to hospital or private quarters on account of the company without specific authority from the head of the department to which such injury is accredited, or some other officer of the company,” in the absence of such authority can not bind the company by contracting with a hotel-keeper to furnish, on its account, board and lodging for such injured persons, or for those in attendance on them.</p> <p>3. Declarations of an agent are not admissible to prove his agency.</p> <p>(a) The fact that the defendant, acting on the recommendation of the same physician who, as claimed by the plaintiff, incurred the account with the plaintiff on which the present suit is brought, had on a previous occasion paid to the plaintiff the board of a person injured by the defendant was an immaterial one, and proof thereof was inadmissible.</p>

<p>Complaint. Before Judge Mprris. Cobb superior court. July 9. 1910.</p>

<p>Distress warrant. Before Julian McCamy, judge pro bac vice. Douglas superior court. January 6, 1910.</p>

<p>1. In the absence of some other exclusive method of determination provided by the constitution, whether an amendment has been properly proposed and adopted according to the requirements of the existing constitution, and has become a part of the fundamental law of the State, is generally a judicial question.</p> <p>2. Where an act of the legislature proposing an amendment to the constitution of the State directed the Governor to publish such proposition and submit it for ratification at the next general election, the fact that after the election he published a proclamation declaring that the amendment had been ratified was not conclusive on the courts.</p> <p>3. The requirement of article 13, section 1, paragraph 1, of the constitution, that the proposed amendment shall be published in one or more newspapers in each congressional district for two months previous to the time of holding the next general election, was complied with, as to the publication in a particular newspaper, where the amendment was published once a week for nine weeks, the first publication being on August 5, and the last being on September 30, preceding the general election which was held on October 5.</p> <p>4. Where an amendment to the constitution has been proposed by the legislature in the manner provided by that instrument, and it has been submitted to the voters for ratification at the prescribed time, and in substantially the prescribed manner, and has been ratified by them, such amendment will not be declared void, even if it should appear that an executive or ministerial officer did not comply strictly with the law as to the extent of publication in a particular newspaper.</p> <p>5. Where the legislature by an act proposed an amendment to the constitution and directed the Goyernor to make the required publication and to submit the question of ratification to the voters at the next general election, and set forth the form of ballot to be used in voting for the amendment or against it, the publication by the Governor of a proclamation setting forth the entire act and declaring that the proposed amendment was submitted for ratification or rejection to the qualified voters of the State, at the next general election to be held on a named date, was a sufficient compliance with the constitution and the act as to the form of publication and submission.</p> <p>6. The constitution does not require that the journals of the, two houses of the legislature must be published and distributed before a proposed amendment can be submitted to the voters for ratification.</p> <p>7. Where an act of the legislature and certain amending acts were declared unconstitutional by this court, and thereupon the legislature proposed • an amendment to the constitution, curing the defect which had existed in the legislative acts, and also ratifying them as of the dates of their passage, and such amendment was ratified by the qualified voters of the State, it will not be declared void on the ground that it did not set out in substance or in terms the legislative acts sought to be validated, but only described them by copying their captions and referring to the year in which they were passed, or because such acts were not copied in extenso on the journals of the Senate and House of Representatives as part of such proposed constitutional amendment.</p> <p>8. Where a constitutional amendment was submitted to the qualified voters of the State for ratification or rejection, the fact that in one county the printed ballots contained only a form of vote for ratification, and no form for voting against it, will not alone cause the amendment, after ratification, to be declared void.</p> <p>(a) This is especially true where it was not made to appear that any official was concerned in the preparation of such printed form of ballot, or that this had any substantial effect upon the 'general result of the election.</p> <p>9. The legislature sought to increase the salaries of judges of the superior courts in certain circuits containing the largest cities in the State, and to have the difference between what was paid to judges from the State treasury and the amount so fixed paid from the treasuries of the respective counties in which such cities were located. The acts making such provision were declared by this court to be in violation of the constitution. An amendment to the constitution was proposed by the legislature, and ratified by the people, which changed the constitution as to the salaries of such judges for the future and also ratified the acts of the legislature as of their respective dates. Held, that such amendment will "not be declared void on the ground that, in effect, it constituted two amendments, and its submission as one was violative of article 13, section 1, paragraph 1, of the constitution, which provides that “When more than one amendment is submitted at the same time, they shall be so- submitted as to enable the electors to vote on each amendment separately.”</p> <p>10. If an amendment to the constitution has been proposed by the legislature, duly submitted to the voters of the State for ratification or rejection, and by them has been ratified, so that the amendment has become an integral part of the constitution, it can not be declared void on the ground that in some particular it does not accord with some other provision of the same instrument.</p> <p>(a) The different provisions of the constitution should be harmonized if practicable. If an amendment duly adopted necessarily conflicts with some previous provision, the amendment, being the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of the former provision.</p> <p>11. An amendment to the constitution of the character indicated in the ninth headnote will not, at the instance-of a county -affected by it, or of the treasurer of such county, be declared void as being in conflict with the provision of the fourteenth amendment of the constitution of the United States, that no State shall deprive any person of property without due process, of law, or deny to any person within its jurisdiction the equal protection of the laws.</p> <p>12. Where the legislature undertook to make an increase in the salaries of judges in certain circuits, and to have the increase paid by the counties therein containing cities of not less than a certain population, and such acts were declared by this court to be invalid because violative of a provision of the constitution of the State, an amendment to the constitution thereafter duly made, which changed the constitutional provision on that subject so as to fix the rule in regard to such salaries for the future, and which ratified the legislative acts as. of their respective dates, can not be declared void at the instance of one of the counties concerned, or its treasurer, on the ground that it sought to overrule the former decision, invaded the province of the judiciary, and deprived the county of its property without due process of law. .</p> <p>13. Where, under the acts of the legislature authorizing payment of a part of the salary of the judge of the superior court in certain counties, a judge was paid by warrants drawn "by the county commissioner of one of such counties directing the county treasurer to pay to the order of the judge the amount thereof, “subject to any claim of the county,” and such warrants were endorsed in collecting them, this did not amount to a contract on the part of the judge to pay back to the county such salary as was paid to him, in case the act of the legislature under which it was paid should at some future time be declared unconstitutional by the courts.</p> <p>14. An amendment to the eqnstitution of the State, which ratified the acts of the legislature under which such payments were made, was not violative of the provision of the constitution of the United States which prohibits the passage of laws impairing the obligation of contracts.</p> <p>15. Such an amendment to the State constitution as that indicated in the preceding lieadnotes was not violative of the clause of the constitution of the United States which guarantees to every State a republican form of governments</p> <p>16. In Ciarle v. Hammond, 134 6a. 792 (68 S. E. 600)-, this court held that the effort by legislative enactments to supplement the salaries of judges of the superior courts in certain circuits, by requiring the payment of the increase over that payable from the State treasury to be paid by certain counties in the circuit containing cities having not less than a certain population, was in violation of the constitution as it then stood. This provision for payment was an essential part of the legislative scheme expressed in the acts under consideration. It could no't be stricken from them, and leave the acts, as fixing an increased salary for the judges described, payable from the State treasury; and no such construction was given to those acts by this court.</p>

<p>Indictment for murder. Before Judge Morris. Fannin superior court. November 7, 1910.</p>

<p>Trover. Before Judge Bell. Fulton superior court.' August 25, 1910.</p>

<p>Indictment for murder. Before Judge "Worrill. Terrell superior court. September 17, 1910.</p> <p>The plaintiff in error (hereinafter called the defendant) was convicted of murder, and to the refusal of his motion for a new trial he excepted. The evidence on behalf of the State was substantially as follows: Frank Bowen testified, that, while sitting in his house at about 7 o’clock at night, October 21, 1909, he heard a gun fire, and on going out found the deceased lying on the edge of the road just outside of his yard, with a wound about the size of a silver dollar in her stomach. The "wound was inflicted by the firing of a shotgun, and was just “a bit to the right of the stomach.” When the gun fired he was 75 or 80 feet from where the deceased was found, and the noise of the gun appeared to come from this place. When he reached her body no one else was there and no weapon was near her. “ She said something about Sell [the defendant] shooting hex, some way or other, but I don’t remember how she brought that in. . . The deceased was his (defendant’s) wife, or the woman he was living with as his wife. She lived 15 or 20 minutes after I found her. She lived about 150 or 200 yards from that place on a plantation road. I examined the place where her dress was struck by the load; it was powder burned. I examined enough to see whether there was any wound on the back side: I noticed that there was a knot pushed higher up on her back than the wound in front. I felt of it; it felt like shot. Her husband came in about twenty or thirty minutes, and stayed there until Mr. Lewis came and brought him to town, . . This man and woman had been getting along fairly well, as well as negroes generally get along, before the time of the shooting. They had a few little disputes since I had been there. . . Sell Boyd said at the coroner’s inquest that they were tussling over a gun and she got shot; and that is all that I remember having heard him say at the coroner’s inquest. He said that she was drinking, and that she had started up towards your house with the gun; that he overtook her, and told her to give him that gun; that he caught hold of it, and she jerked' back, and that the gun went off accidentally. Sell Boyd said at the coroner’s inquest that the shooting was an accident; that he wás simply trying to get the gun away from her when it fired; that she snatched the gun when he caught hold of it, and that it was all an accident; that she went out of the house and carried the gun and was going up towards my house when he overtook her and tried to take the gun away from her; that, to the best of my recollection, he said at the coroner’s inquest that she was drinking, and what I am now talking about is wliat Sell Boyd said at the coroner’s inquest. . . He said that she was leaving the house, and that he followed her; and that in trying to take the gun away from her it went off. . . I saw Sell Boyd that night after the shooting; he was very little drunk; he may have had a drink, I would not say that he was drunk; I could smell some whisky on him and. her too. I smelt some whisky on him. I smelt whisky on Ella Boyd too.” E. B."McLain testified that he was a member of the coroner’s jury which held an inquest on the body of the deceased in the house in which she and the defendant lived. “There was a little single-barrel breech-loading shotg-un exhibited to us, with which they told us the killing was done; Sell Boyd, I believe, said it was the gun. . . I think that Sell brought the gun in there. . . Sell Boyd, at the same time and place in which he told me that this was the gun that the shooting was done with, told me that his wife took the gun and started up 'the road, and he followed her up there and attempted to take the gun away from her, and in the tussle it went off.' . . ■ My recollection is that he stated that she went off up the road with the gun and he followed her, and he followed her up and attempted to take the gun away from her, and the gun went off. He said that in tussling over the gun the gun went oí!. .1 think that Sell Boyd said, in that same conversation, that he did not intend to kill her.” C. P. Buchannan, the coroner, testified that he failed to find any “powder stains or burns about the wound, if there were any. . . I examined a dark skirt, and around that hole in the skirt was some sand and dirt. ' The clothing were not on her at the time I examined them. They had been taken off of her. The woman had been re-dressed at the time I examined her. The clothing that she had worn at the time that she had been shot were on the floor, by the window. They were bloody. The hole in the garments that I examined looked to be about the same size of the hole in the body. The dark skirt had some dirt on it,, but I saw no signs of powder stains. The skirt I examined was a dark skirt, and I suppose it. was an outer garment. . .It had dirt or sand or something of that nature on it. . . I don’t know that the clothes I examined were the clothes that she had on at the time she was shot. . . I can’t swear whether that was a skirt or a dress that I found the hole in. I can not swear positively what part of'the stomach that wound was in. I don’t know exactly whether it wras below the waist, along where the skirt hangs.” The defendant introduced no testimony and made no statement upon the trial.</p>

<p>Petition for specific performance. Before Judge Pendleton. Fulton superior court. June 7, 1910.</p>

<p>Complaint. Before Judge Charlton. Chatham superior court. April 22, 1910.</p>

Injunction. Before Judge Brand. Clarke superior court. October 22, 1910. Nicholas Nutres instituted suit against S. B. Wingfield as ordinary, and W. E. Jackson as sheriff, of Clarke county, to restrain the collection of four executions which had been issued against the plaintiff by the ordinary and levied by the sheriff.

<p>Action for breach of warranty. Before Judge Felton. Bibb superior court. February 24, 1910.</p>

<p>Action for damages. Before Judge Ximsey. Hall .superior court. January 18, 1910.</p>

<p>Action for damages. Before Judge Norris. Fannin superior court. February 18, 1910.</p>

<p>Action for breach of contract. Before Judge Fite. Catoosa superior court. June 10, 1910.</p>

<p>Action for damages. Before Judge Beagan. Butts superior court. April 18, 1910.</p>

<p>Indictment fox morder. Before Judge Worrill. Terrell superior court. February 14, 1911.</p>

<p>Indictment for murder. Before Judge Frank Park. ’ Worth superior court. January 7, 1911.</p>

<p>Action upon contract. Before Judge Frank Park. Dougherty superior court. April 4, 1910.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. June 1, 1910.</p>

<p>Where a customer of a milling company orders ñorn-, which is consigned by the milling company to itself with a memorandum on the bill of lading to notify the customer, and contemporaneously the milling company draws a draft for the price of the flour on the customer, payable to a bank, to which is attached the bill of lading indorsed in blank, and deposits with the bank the draft with bill of lading attached, and the amount of the deposit is credited to the depositor’s general account and drawn against by him, the bank becomes the purchaser and owner of the draft and bill of* lading; and the title of the bank to the flour is superior to a subsequent lien against the milling company.</p>

<p>Action for damages: Before Judge Ellis. Fulton superior court. July 30, 1910.</p> <p>This case was brought here by writ of error sued out to review the judgment of the court below, granting a first new trial. The brief of evidence, as appeared from the record, had been approved and filed in the court below, but was not brought up as a part of the record; it was transmitted by the clerk of the court below upon order issued by this court.</p>

<p>Complaint for land. Before Judge Charlton. Chatham superior court. July 18, 1910..</p>

Quo warranto. Before Judge Brand. Clarke superior court. July 27, 1910. An act of the General Assembly, approved December 15, 1897 (Acts 1897, p. 387), created a board of commissioners of roads and revenue for the County of Clarke.

<p>Petition for injunction. Before Judge Brand. Clarke superior court. July 27, 1910.</p>

<p>Action for damages. Before Judge Maddox. Eloyd superior court. April 13, 1910.</p>

<p>Action for 'breach of contract'. Before Judge Lewis. Morgan superior court. February 17, 1910.</p>

<p>Exceptions to award. Before Judge Pendleton. Eulton superior court. March 8, 1910.</p>

<p>Action for damages. Before Judge Martin. Dodge superior court. June 28, 1910.</p>

<p>Foreclosure of lien. Before Judge Pendleton. Fulton superior court. June 6, 1910.</p>

<p>Complaint. Before Judge Meadow. Warren superior court. June 20, 1910.</p>

<p>The gist of the plaintiff’s action in this case was that a railroad steel rail was carelessly and negligently thrown or caused to fall, without fault on the plaintiff’s part, upon the foot of the latter, breaking and crushing it, and that the negligence complained of consisted in moving or throwing a steel rail while a gang of laborers, of which the plaintiff was a member, were engaged in unloading steel rails from a car, without giving proper notice to the plaintiff that the rail was about to be moved or thrown; but the petition fails entirely to show just how the complainant was engaged in assisting in the removal of the rails from the car, what was his relative position with reference to the rail that was being moved or unloaded or with reference to the other members of the gang who were engaged in the same work, or how or why any notice was necessary or proper;-and the court erred in overruling a demurrer calling for more specific information in regard to these questions.</p>

<p>Action for damages. Before Judge Eeagan. Monroe superior court. April 18, 1910.</p>

<p>Petitions for injunction. Before Judge Bell. Floyd superior court. January 30, 1911.</p>

<p>Complaint. Before Judge Lewis. Hancock superior court. March, 29, 1910.</p>

<p>Removal of constable. Before Judge Pendleton. Fulton superior court. June 8, 1910.</p>

<p>1. In order to admit secondary evidence, it must appear that the primary evidence, for some sufficient cause, is not accessible to the diligence of the party tendering such evidence. The question of diligence is one of sound discretion in the court.</p> <p>(a) In this case there was no error in refusing to admit secondary evidence of a written assignment.</p> <p>(b) If an assignee sent a written assignment to another State for record, and left it there with no effort to obtain its return, it was not an abuse of discretion to hold that this did not sufficiently show that it was inaccessible to the assignee, so as to admit parol evidence of its contents at his instance.</p> <p>2. Where two persons took a written assignment of certain ehoses in action to themselves as individuals, a corporation not then in existence, but subsequently chartered with the assignees as corporators, could not sustain a common-law action brought in its own name as the owner of such ehoses in action by offering to show by parol that the assignees acted as its agents in taking the assignment.</p> <p>3. An action dependent on the ownership by the plaintiff of a legal title to ehoses in action can not be sustained by parol evidence tending to show that the plaintiff is the equitable owner of such ehoses.</p> <p>4. There was no error in granting a nonsuit.</p>

<p>Foreclosure of lien. Before Judge Morris. Cobb superior court. March 17, 1910.</p>

Foreclosure of lien. Before Judge Fite. Whitfield superior court. January 22, 1910. On the 6th clay of January, 1909, T. J. Bryant instituted proceedings to foreclose his lien as a livery-stable keeper against John White. White filed his counter-affidavit; and on the same day Bryant filed his application with the ordinary for an order to sell the property described in his foreclosure proceedings.

<p>Action for damages. Before Judge Ellis. Eulton superiqr court. August 4, 1910.</p>

Before Judge Kimsey. Habersham superior court. June 1, 1910.

Equitable petition. Before Judge Worrill. Early superior court. March 1, 1910. Mrs. A. L. Miller (formerly Jones) and Nannie Jones brought an action against R. L. Jones, as executor of the will of W. D. Jones Sr., deceased, T. E. Jones Sr., T. E. Jones Jr., W. W. Beard, Emma Beard, W. B. Hattaway, and C. J. Rambo.

<p>Distraint. Before Judge Worrill. Early superior court. April 6, 1910.</p>

<p>Action for damages. Before Judge Rawlings. Johnson superior court. January 10, 1910.</p>

. Action for breach of contract. Before Judge Rawlings. Toombs superior court. February 22, 1910. The action was to recover damages for breach of contract. The plaintiff alleged that he entered into a written contract with the defendants, wherein the defendants contracted to sell to him for $2,500 a certain tract of land which they had bought from Mrs. Grimes.

<p>Eviction. Before Judge Hammond. Bichmond superior court. February 19, 1910.</p>

<p>Action for damages. Before Judge Fite. Murray superior court. May 21, 1910.</p>

<p>Removal of obstructions from private way. Before Judge Sea-brook. McIntosh superior court. April 23, 1910.</p>

<p>Eviction. Before Judge Maddox. Eloyd superior court. March 31, 1910.</p>

Complaint for land. Before Judge Frank Park. Baker'superior court. March 21, 1910.

<p>Actiou for damages. Before Thomas A. Brown, judge pro hae vice. Fannin superior court. July 2,1910.</p>

<p>Appeal from condemnation. Before Judge Pendleton. Fulton superior court. July 20, 1910.</p> <p>On August 14, 1906, the Gate City Terminal Company gave proper notice and began proceedings to condemn certain property. On September 1, 1906, the defendant in error, M. L. Thrower, obtained a temporary restraining order enjoining these proceedings. One Bridwell also sought to enjoin proceedings by the same company to condemn his property. Both injunction proceedings 'involved the question as to whether the company-had the right of eminent domain, and it was agreed that the injunction case begun by Thrower should abide the final judgment rendered in the case begun by Bridwell. It being finally decided by this court, on March 14, 1907, that the company had the right of condemnation, the restraining order obtained by Thrower was dissolved, after which the condemnation proceedings were carried on; and on April 20, 1907, an award was made by the assessors, valuing the property at $6,000, which the company tendered or paid on April 20, 1907, and on that day took possession of the property. Thrower entered an appeal from the award, and on the trial in the superior court the jury rendered a verdict valuing the property at $8,500. To the order of the court refusing a new trial, the company excepted. The plaintiff in error (hereinafter called the plaintiff) introduced, upon the trial of the case before the jury, testimony in part substantially as follows: Miss Flynn sold the property to Mr. Crockett for $1,800. The deed from the former to the latter, dated April 15, 1905, reciting a consideration of $1,800, was introduced in evidence. Several witnesses testified that they examined the property after the condemnation proceedings were begun. One of them testified that he .estimated its market value to be $3,645, and in making the estimate he “made an allowance of 100 per cent, on account of the prospect of the railroad terminals being located in that locality.” Another witness testified .that the market value of the property was $3,750. Another witness testified that its market value was between $3,500 and $5,000. Thrower testified, in part, as follows: He bought the property in 1906 from Mr. Crockett. “At the time I bought the property, the railroad had graded out along side of the property, and they had practically bought everything in the block, with the exception of this and the Yolberg property, and I agreed to pay Mr. Crockett $14,000 for the property. It was my estimate it was railroad property when I bought it. I bought it as such. . . I agreed with Mr. Crockett, along the first of August or the latter part of July, to give him $14,000 for it. I had the titles examined, and it was closed up some time the latter part of August, 1906. I bought the property before I knew of the condemnation proceedings. The agreement was made in July. . . When I bought the property from Mr. Crockett it was graded along the side, the 200-foot side, down to a depth of some 20 feet, up to the line of this property. After I borrght the property I tried to sell it. In April, 1907, the market valué of this property was $16,000 or $17,000, considering the railroad there. Excluding the railroad purposes makes a difference in the value of that property of about one half; possibly 'a little more. The house rented for $25 a month. Putting it on a 4 per cent, basis, it would be worth about $7,500; you have got to pay taxes out of that. . . He deeded me the property that is sought to be condemned, after the condemnation proceedings, about the latter part of August, the 27th I believe, 13 days after the condemnation proceedings started. . . At the time I bought the property I didn’t think the Gate City Terminal Company could condemn it. I thought I could get a little profit from it,-like I would on any other piece of property I bought. I had a notion that I could get a little more for it than I gave for it. I didn’t have a notion that I could get my own price for it. . . When I bought I didn’t know what they were going to do there. I know property went mighty high around the terminal station. . . If the railroad had not taken the property — if they had not built freight or passenger terminals in there, yoii could have used it for manufacturing sites close to.it, or for warehouse or hotel property; it is closer to the center of the city than the Aragon Hotel. If the railroad had come up to my propertj1', but had not taken it, i,t would have been worth about $10,000.” E. T. Crockett testified: “I bought the property from Miss Flynn something like three years before, April 15, 1905. I got my deed July or August of that year. I spent about $1,400 in improvements. . . I considered the market price was what I got for it — $14,000. . . I told Thrower that Adair was trying to buy this for the railroad.” Geo. B. Sanders testified: In March, 1907, he thought the market value of the property was $15,000 or $16,000. It was worth $3,000 or $4,000 “before the contemplation of the railroad.” John W. Alexander testified: “The depot is, I thiiik, on a part of that lot now. . .. Before the exr citement about the railroad-I don’t think this lot would have been worth over four or five thousand dollars. About the middle of August, 1906, I considered the lot worth twenty or twenty-five. thousand dollars. I considered the lot worth twenty or twenty-five thousand dollars, because it was there on the railroad, that near in town; it was expected to have a railroad front at that time; we knew pretty well where they were, going to locate the railroad; the whole of my valuation is if it had a railroad front. If it didn’t have a railroad front, it would not be that valuable; if the road was right near it, it would be worth $10,000.” Fred J. Cooledge testified: “I think I knew what the property was worth about August, 1906, that was after the railroad had bought nearly all of that property. The market value of the Thrower ■lot in August, 190”6, was something like sixteen to eighteen thousand dollars. I got at that valuation by reason of the fact that the railroad owned right up to it; it had an alley coming up to the rear, and that was the key to the situation. I mean that the railroad had to have the alley to get into the property from back behind it. If the railroad .didn’t want that alley, they wouldn’t have to take it. I should think that that property, before any railroad was contemplated there, would have brought in the neighborhood of $5,000.” J. A. Bonduraht testified: “In April, 1907, that property was worth sixteen or eighteen thousand dollars. Before the railroad entered, that property was worth about $4,500 I think. Property went up as soon as they commenced building a terminal station around-there; but it didn’t go up like the property the.railroad didn’t take; it all went rip pretty high. If the railroad had not built there, although the terminal station was built there, it would be worth $16,000.- The terminal station has been built about five years; property commenced going up from the time it was built. That piece of property was worth eight or ten thousand dollars after the terminal station went up. It was worth $4,500 before 1906.” B. Blair Armstrong testified: “I was familiar with this piece of property owned by Mr. Thrower, formerly by Mr. Crockett, and with its- market value in August, 1906. I think that piece, was worth eight or nine thousand dollars. In the next twelve months the railroad had. done a lot of grading, and I think they owned all but one piece of property around there, and that piece, and by that time I would say that piece was worth about $15,000, for Mr. Thrower held the key to the situation. That the railroad had to have that piece of property is' one reason why it was the key to the situation; but it could have been used for a warehouse.” Dr. De Los Hill testified: “I was familiar with my estimate of its market value in 1906, which is from $15,000 to $20,000. . . There was an excavation going on in the same block, I can’t say just how close to that lot, but all around the lot on one side at least there was a hole in the ground; on one side of the lot, some feet away, -leaving room to hold up the bank, and some feet between that bank and that lot. I thought it possible that the railroad might have to have the property; that entered into the valuation of it; that was one of the points putting a valuation on it. The market value of the property in case the railroad did not take it, but made it a railroad front, was $15,000 to $20,000.”</p>

<p>Action for breach' of promise of marriage. Before Judge Fite. Catoosa superior court. June 25, 1910.</p>

<p>Action of deceit. Before Judge Martin. Montgomery superior court. July 23, 1910.</p>

<p>The court did not err in granting a nonsuit.</p>

<p>Upon the hearing of an application for an interlocutory injunction, the court enjoined the plaintiff from doing certain acts and the defendant from doing certain acts, but provided that the order granting the injunction against the plaintiff should be superseded upon the giving of a specified bond, conditioned to pay the defendant such damages as it might recover on the final trial. It being made to appear to this court that the plaintiff gave bond in accordance with the terms of the order, an exception to the order on the ground that the plaintiff should have been allowed to do the work without giving such bond will not be entertained.</p> <p>(a) If the order be construed to mean that the defendant was permitted to do certain work merely upon giving bond conditioned to pay the plaintiff such damages as it might recover upon the final trial of the case, an exception to the order on the ground that the defendant should have been enjoined without being permitted to perform the acts upon giving bond will not be considered by this court, when it appears that the defendant gave bond in accordance with the terms of the order, and, since the bill of exceptions was filed, has performed the acts which the plaintiff sought to have the defendant restrained from doing; nor will such exception be considered if the order be construed to mean that the defendant was not permitted to do such' work unless it gave the required bond and also registered its business with the municipality of Brunswick and took out a license from that city, where the work done by the defendant was upon the streets of the city and in pursuance of a eontract between the defendant and the city, the latter being no party to the ease.</p>

<p>Excluding from consideration hearsay testimony, which has no probative value, the verdict directed by the court was demanded under the other evidence introduced upon the trial.</p>

<p>Equitable petition. Before Judge Maddox. Walker superior court. February 21, 1910.</p>

<p>A petition in an action based on promissory notes given by the defendant to the plaintiff is not amendable by adding thereto an action ex delicto on the ground that the defendant has fraudulently converted to his own use collateral notes belonging to the plaintiff and has refused to pay over the same on demand.</p> <p>Equitable petition. Before Judge Gilbert. Muscogee superior court. February 9, 1910.</p> <p>The substance of the petition was as follows: The defendant is indebted to the plaintiff in a given amount on certain promissory notes made by the defendant and payable to the order of the plaintiff. A copy of one of the notes is attached to the petition, and the other notes are similar, except as to dates and amounts, which are set forth. The defendant delivered to the plaintiff, as collateral security for such notes, the notes of other parties, paj^able to defendant, which collateral the plaintiff delivered to the defendant upon his written agreement to collect the same and turn over the proceeds to plaintiff, at stated periods, to be applied to the principal indebtedness. The defendant executed to the plaintiff a chattel mortgage, as well as a mortgage on realty to secure the payment of. the principal indebtedness. Defendant is insolvent. He has collected a large amount on the collateral notes, and has admitted that he has converted the same to his own use, except a given amount. He has removed the personalty, on which the mortgage was given, beyond the limits of the State, and by consent of the plaintiff has sold the same upon condition that he would pay over the proceeds on his indebtedness to the plaintiff, but has so paid only a part of such proceeds. 'The plaintiff has demanded of the defendant the proceeds of the collateral notes collected by him, and the delivery to the plaintiff of the collateral notes uncollected, but the defendant has refused to comply with such demands. The conduct of the defendant in appropriating the proceeds of the collateral notes to his own use and in refusing to turn over to the plaintiff the remaining collateral notes, and his conduct in disposing of the mortgaged personalty and converting the proceeds to his own use, and in refusing to turn same over to the plaintiff, constituted a fraud and wrong against the plaintiff. The prayers are, for judgment for the balance due on the notes given by the defendant to the plaintiff, for injunction restraining the defendant from making any further collection on the collateral notes, for the appointment of a receiver, and for process.</p> <p>It does not affirmatively appear from the record that a receiver was appointed; but the record shows that the court approved the report of a receiver, and ordered that the proceeds of the sale of the property made by the receiver, less a certain amount allowed to him for his services, be credited on the notes given by the defendant to the plaintiff.</p> <p>The defendant filed a plea to the effect that his petition in bankruptcy was pending, and that the debt, the foundation of plaintiff’s action, was scheduled, the plaintiff named as one of his creditors, and that he was seeking a discharge from such debt. The plaintiff thereafter offered an amendment, setting forth the amount of the collateral security notes, and also setting forth the description of one of the tracts of land which was mortgaged to secure the notes sued on; and amended the prayers of the petition so as to ask for the foreclosure of the mortgage on realty, as to the lot of land described, and for a sale of such land in order that the proceeds might be applied to the payment of the principal indebtedness due by the defendant, and that a decree be rendered declaring that the conversion of the collateral notes described in the original petition was a violation of the trust reposed in the defendant by the plaintiff, and a fraud upon him, 'and that plaintiff have a judgment or decree for the value of the same. The defendant demurred to the amendment and moved to strike the same, upon the ground, among others, that by the amendment the plaintiff sought to recover a verdict for the amount of the collections made by the defendant on the collateral notes and alleged to have been fraudulently converted by him to his own use, thus seeking to add a cause of action ex' delicto to one arising ex contractu. The demurrer to the amendment was overruled, and the court refused to strike the same. The plaintiff introduced evidence showing the value of the collateral notes, the amount of the collections thereon which had been paid to the plaintiff, and showing the balance due on the notes executed by the defendant to the plaintiff. The defendant introduced no evidence. There was a verdict in favor of the plaintiff for $8,545.55, which was the balance due on such last-mentioned notes, as shown by the evidence in behalf of the plaintiff. The jury further found: “We also find that the defendant did fraudulently convert to his own use the sum of $13,979.03.” _ Judgment was entered, reciting the verdict, and directing that the plaintiff recover. of the defendant $8,545.55 generally, that the mortgage on the described realty be foreclosed, and that the plaintiff recover of the defendant said sum to be levied on the mortgaged premises. The defendant filed a bill of exceptions, assigning error upon the refusal of the court to sustain the demurrer to the amendment, and to strike the same, and upon the final judgment.</p>

<p>Equitable petition. Before Judge Bawlings. Johnson superior court. July 1, 1910.</p>

<p>Equitable petition. Before Judge Meadow. Hart superior court. March 21, 1910.</p>

<p>Action for damages. Before Judge Morris. Eannin superior court. February 18, 1910.</p>

<p>Foreclosure of lien. Before Judge Fite. Dade superior court. March 28, 1910. ,</p>

<p>The mere fact that one railroad company had been accustomed, in behalf of a firm of merchants, to switch to its side-track, to be unloaded for the consignees, cars of ice brought to destination by another railroad company, did not make the former liable in damages to the firm merely because of a refusal to continue the practice of switching cars in this way for the firm, with or without notice to it that the practice would be discontinued, where it does not appear that because of the practice, and a belief that it would be continued, the firm did something by reason of which it suffered injury or loss upon a discontinuance of the practice without reasonable notice, and that no such notice was given. °</p>

<p>This case came before the Supreme Court upon a writ of error; and the same being for decision by a full bench of six Justices, who are evenly divided in opinion (Justices Lumpkin, Beck, and Atkinson being -in favor of a reversal, and Chief Justice Rish, Presiding Justice Evans, and Justice Holden being in favor of an affirmance), the judgment of the court below stands affirmed by operation of law.</p>

<p>Action for damages. Before Judge Conyers. Glynn superior court. July 26, 1910.</p>

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

<p>Equitable petition. Before Judge Bell. Eulton superior court. May 16, 1910. • ■</p> <p>Mrs. W. E. Robinson, administratrix of the estate of her deceased husband, W. E. Robinson, brought an equitable petition against Shaler L. Iiillyer, to recover a certain sum which she claimed as due by the defendant. Petitioner alleged that at the 'time of the death of her husband there were outstanding two policies of insurance on his life, aggregating the sum of $5,000; that prior to his death he had assigned these policies to the defendant in terms which authorized him to collect from the insurance company the full amount which might become due on the policies upon the death of Eobinson, and out of the money so received to retain for his (deféndant’s) own use the amount of any indebtedness of Eobinson to the defendant, and to pay over the balance to the beneficiary named in the policies, which was the estate of. the deceased; that Eobinson died in August, 1908, and shortly thereafter the insurance company paid over thé sums due on the policies to the defendant; that it was not until after the death of her husband that petitioner learned that these policies had been assigned to the defendant to secure an indebtedness of the deceased, and on offering to adjust this indebtedness she was informed by the defendant that her husband owed him $3,696, represented by 14 promissory notes; and that, believing the representations of the defendant to be true, petitioner agreed to settle this indebtedness for the sum of $2,460, thereby, as she believed, saving for the estate the sum of $2,000. Petitioner charges that the representations of the defendant as to her husband’s indebtedness to him Were false and fraudulent, and made for the purpose of defrauding her and her children out of a large sum of money; she charges that at the time of signing said notes her husband was induced to sign the same without any consideration other than certain small sums of money advanced to him, and that the entire indebtedness to the defendant, both for money advanced and premiums paid on the policies, did not in fact exceed the. sum of $500, and that the taking of the notes for the several amounts, one being for the sum of $3,000, “was a scheme and effort to enforce fraudulently a usurious contract, . . and defendant was thus .enabled to collect and did collect from the estate usury to the amount of $1,850.” Petitioner charges that “to further cloak his deceit and fraud said Iiillyer caused your petitioner to file in the court of ordinary of said State and county a petition to authorize said settlement, a copy of which is hereto attached,” and that the ordinary, upon these false representations (innocently made by petitioner), approved said settlement. Petitioner prays that this judgment of the court of ordinary confirming the settlement be set aside, and that she have judgment against the defendant for the sum of $1,850.</p> <p>The defendant filed a general and a special demurrer, which were overruled, and he excepted.</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. November 21, 1910.</p>

<p>Equitable petition. Before Judge Brand. Clarke superior court. June 27, 1910.</p> <p>Harry H. Phinizy died testate on May 1, 1890. The first four items of his will, after providing for the payment of deb’ts, made certain specific legacies. The fifth item was as set out in the first headnote. The four nieces of the testator survived him and became of age. Two of them married, and one of them had a child born to her. The fathers, who were named as trastees, were in life. There were also brothers and sisters of the nieces. The four nieces filed, an equitable petition, claiming that they were joint tenants with fee-simple interests, and prajdng for a sale of the property and a distribution of the proceeds among them. The fathers of the plaintiffs were made defendants, individually and as trustees. By interventions various persons were made parties, alleging that thev were the brothers and sisters of the plaintiffs, and the only child of one of them. The minors appeared by guardians ad litem. The case was submitted to the presiding judge without a jury. He held that the nieces were owners of the property in fee simple, and directed a sale and division of the proceeds among them. The other parties excepted.</p>

Action for alimony. Before Judge IQmsey. Hall superior court. July. 29, 1910. Mrs. M. L. Smith brought her petition against her husband, H. H. Smith, for permanent alimony for the support of herself and her four minor children.

Action for damages. Before Judge Gilbert. Harris superior court. August 27, 1910. Jenkins sued the Southern Railway Company for damages, and his petition after amendment was dismissed on general demurrer, to which ruling he excepted.

<p>Action for damages. Before Judge Fite. Dade superior court. July 23, 1910.</p>

<p>Complaint for land. Before Judge Conyers. Appling superior court. June 25, 1910.</p>

<p>Trover. Before Judge Pendleton. Fulton superior court. June 25, 1910.</p>

<p>Equitable petition. Before Judge Eoute (presiding instead of Judge Eite> disqualified). Bartow superior court. July 29, 1910.</p>

<p>Action for account and settlement. Before Judge Eawlings. Emanuel superior court. January 19, 1910.</p>

<p>Indictment for murder. Before Judge J. B. Park. Jasper superior court. May 6, 1911.</p>

<p>Equitable petition. Before Judge' Gilbert. Taylor superior court. June 28, 1910.</p>

<p>Petition for mandamus. Before Judge Littlejohn. Lee superior court. October 15, 1910.</p>

<p>Claim. Before Judge Whipple. Ben Hill superior court. April 8, 1910.</p>

<p>1. Where an action was brought to recover possession of personal property to which the plaintiff claimed title, and the defendant denied that it belonged to the plaintiff, but filed no affirmative plea, on the general case the plaintiff carried the burden of showing that he was entitled to recover; and there was no error in so charging.</p> <p>(a) In such a case it was not error that the presiding judge did .not take up the particular points of contest made by the testimony, and charge in regard to the shifting of the burden of evidence as to such points. If such a charge on a particular point as to which evidence was introduced would have been appropriate, a request therefor should have been, duly made.</p> <p>2. Where one question in a ease was whether, if a gift of personalty was made, the donor had sufficient capacity to make it, and the judge charged fully as favorably to the excepting party as such party could have asked, in regard to the measure of capacity necessary in such a case, the fact that he illustrated the subject of mental capacity by reading certain sections of the civil code touching testamentary capacity, also informing the jury that no will was involved and that this portion of his charge was simply illustrative of the general subject and did not furnish the standard applicable to the case in hand, furnishes no ground for a reversal.</p> <p>3. There was no error in charging Civil Code (1910), § 4150, which declares that “The delivery of personal property by a parent into the exclusive possession of a child living separate from the parent shall create a presumption of-a gift to the child.”</p> <p>4. None of the other assignments of error furnish any ground for reversal.</p>

<p>Appeal. Before Judge Brand. Jackson superior court. July 13, 1910.</p>

<p>1. The court should not unduly press a jury to agree upon a verdict; and in the use of any remarks designed to impress the desirability of reaching a verdict, he should be careful to refrain from any expression of a coercive nature or which possibly may mislead them into an erroneous method of reaching a verdict: Upon being informed by the jury of their inability to agree upon the amount of recovery, the judge’s instruction that verdicts are mostly compromises, and his illustration of that statement, was prejudicial to the defendant; its tendency was to suggest that the jurors might arbitrarily compromise, divide, and yield for the mere sake of agreement.</p> <p>2. Other than as indicated, no error was committed which would require a new trial.</p>

<p>Indictment lor murder. Before Judge Maddox. Chattooga superior court. April 22, 1911.</p>

Petition for injunction. Before Judge Thomas. Berrien supe- • rior court. January 9, 1911. The Adel Lumber Company, being a private corporation, was engaged in operating a sawmill at Adel, Georgia, on the line of the Georgia Southern & Florida Railway Company. The lumber which' it manufactured was for shipment over the railroad of the Georgia Southern & Florida Railway Company, for distribution to the general lumber trade.

<p>1. A council of a municipality can not make a binding contract by which it undertakes to obligate the municipality to furnish “free of charge,” for an indefinite time in the future, sufficient water for the closets in a given building situated within the corporate limits, in consideration of the owner of the building allowing the municipality to ■ lay its sewer through his land.</p> <p>2. Such a contract, being ultra vires and void, could not be ratified by the continued use, under the contract,. of the sewer through the land by the municipality, nor would the benefit thereby received estop it from subsequently setting up the invalidity of the contract.</p>

<p>Foreclosure of lien. Before Judge Bell. Fulton superior court. March 29, 1910.</p>

<p>Complaint. Before Judge Parker. Wayne superior court. March 12, 1910!</p>

<p>1. A testatrix, after the execution of her will, cut therefrom two items giv- • ing bequests of money, and cut from another item, in which a bequest of money had been given to two of her nephews, the name of one of them, and also cut out the name of the same nephew as an executor, and removed other words and pluralizing letters which showed that there were more legatees than one in the last-mentioned beqrxest and more executors than one nominated. The will was propounded without such parts which had been cut therefrom. Evidence was introduced to show that the testatrix did not intend to revoke the entire will, but only to revoke the parts eliminated therefrom, and that she retained the instrument, after such cutting, as being her will. Held, that under the statute of this State a revocation of a will pro lambo by canceling, obliterating, or destroying such part is not, authorized.</p> <p>2. Under the facts stated in the preceding headnote, if the testatrix did not intend to revoke the entire will, but only the particular legacies and the appointment of the executor, which were cut 'therefrom, a revocation of the entire will would not result as matter of law from such cutting.</p> <p>3. If a will was duly executed, and when propounded for probate it appeared that certain words had been cut from it by the testatrix, with a view to making a pro tanto revocation only as to three bequests of money and the appointment of a certain executor, and it could be shown what such words were, they could be restored by evidence, and the will as originally executed admitted to probate^.</p> <p>4. Under such circumstances a legatee whose name was thus cut from the will may, when the will is propounded, enter a caveat to its being probated in its incomplete condition, and may plead and prove what were the words removed from the will, and pray that it be probated as originally executed. He is not compelled to merely file a caveat to the probating of the will as propounded, and then in a separate litigation propound the same will with the addition of the missing words and clauses.</p> <p>5. As the person claiming to be a legatee could intervene in the court of ordinary and set up the contentions stated in the preceding headnote, he could do so in the srvperior court, after the ease had been carried thereto by appeal from the court of ordinary.</p>

<p>Complaint. Before Judge Eelton. Houston superior court. May 5, 1910.</p>

<p>Action upon insurance policy. Before Judge Meadow. Taliaferro superior court. April 4, 1910.</p>

<p>Writ of error, from Cobb superior court.</p>

<p>Action for damages. Before Judge Pite. Dade superior court. August 1, 1910.</p>

<p>Appeal’ from probate of will. Before Judge Fite. Whitfield superior court. August 9, 1910.</p>

<p>Action for damages. Before Judge Edwards. Douglas superior court. January 25, 1910.</p>

<p>Action upon insurance policy. Before Judge Charlton. Chatham superior court. July 1, 1910.</p>

<p>Claim. Before Judge Conyers. Appling superior court. July 14, 1910.</p>

Complaint. Before Judge Charlton. Chatham superior court. April 7, 1910. Marie Wickham brought an action against Arthur Torley, the substance of the petition now material being as follows: Plaintiff, in the early part of June, 1908, was living with S. S. Sollee. Shortly thereafter the defendant, her brother, entered with Sollee into the business of raising pigeons for market, and has continued in such business since that time.

<p>1-3. The charge of the court was not subject to the criticisms made upon it.</p> <p>4. When in a criminal case, after verdict, an attack is made upon a juror upon the ground that he was not impartial, the trial judge occupied the place of a trior, and his finding that the juror is competent will not be reversed, unless under all the facts the discretion of the judge is manifestly abused. No abuse of discretion appears in this case.</p> <p>5, 6. The grounds of the motion for new trial complaining of the omission to charge and refusal of the court to charge as requested were without merit.</p> <p>7. The evidence was sufficient to support the verdict. (Atkinson, J., dissents from this ruling.)</p>

<p>Exceptions to auditor’s report. Before Judge Worrill. Muscogee superior court. May, 1910.</p>

<p>Complaint for land. Before Judge Worrill. Randolph superior court. July 15, 1910.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. March 12, 1910. The State of Georgia owns a railroad known as the Western and Atlantic Railroad, extending from Atlanta, Georgia, to Chattanooga, Tennessee. In November, 1889 (Acts of 1889, p. 362), an act was passed by the General Assembly providing for its lease. It was stipulated that tlie Governor should advertise for bids, and no bids.for less than a stated minimum would be received.

<p>Action for damages. Before Judge. Seabrook. Liberty superior court. February 22, 1910.</p> <p>Mrs. Katie R. Parker instituted suit for damages against the Georgia Coast & Piedmont Railroad Company for the homicide of her husband. The defendant fled general and special demurrers, and afterwards the plaintiff offered an amendment, which was.allowed and made a part of the record. The defendant- renewed its general demurrer to the petition as amended, and after argument the demurrer was sustained 'and the petition dismissed; and the plaintiff excepted. The petition as amended, in substance, alleged the following: In the incorporated town of Ludowici the railroad track of the defendant runs east and west, and crosses at right angles the track of the Atlantic Coast Line Railroad Company. At a point about 100 yards east of the intersection a sidetrack of the Atlantic Coast Line connects with the main line of defendant, by means of which cars, are shifted from one railroad to the other. About four o’clock in the afternoon a passenger-train was standing about 300 yards east of the intersection of the main lines of the two railroads, and 200 yards east of the intersection of defendant’s main line with the side-track first mentioned, on another of defendant’s side-tracks which ran parallel to its main line. At the same time a freight-train, consisting of an engine and cars at either end of the engine, was standing' on the side-track which connected the two railroads. The passenger-train was dne.to leave, but was still receiving passengers intending to leave Ludowici. Plaintiff’s husband contemplated departure on the passenger-train, and for that purpose he walked from his house eastwardly along defendant’s main-line track in the direction of the standing passenger-train. Plaintiff was at a house near the railroad track, intending to leave there and meet her husband at the train.- Her husband was intent on catching the train, and also looking ahead at a slight angle toward the house from which plaintiff intended to leave. The wind was blowing from the direction in which the husband was going; so he could.not hear an approaching train from behind him. He saw the freight-train standing on the side-track, but did not think that it would at that time run out on the main line and endanger pedestrians walking along the main line for the purpose of reaching the passenger-train. But after he had passed the point of intersection of the side-track (on which the freight-train was standing) with defendant’s main line, the freight-train, without warning, and without his knowledge, and without ringing the bell, blowing the whistle, or giving other signals (as the rules of the defendant required), backed out upon the main line and proceeded “to back” in the direction of the passenger-train; and though plaintiff’s husband was in plain view of defendant’s agents and servants.who were operating the freight-train on the main track, they ran over and killed him. The railroad track was the usual and necessary way for pedestrians to reach the train, and the husband was walking along the track in accordance with a long-continued custom and license by defendant. The specific grounds of negligence were: (a) That the engineer who was engaged in operating the engine did not ring a bell, blow a whistle, or give other warning at tHe time the engine was set in motion, which warning, according to the rules of the company and long-established custom, should have been given, and on the giving of which petitioner’s husband had the right to and did. rely, and which if given would have apprised plaintiff’s husband of the moving of the engine, and -would have enabled him to have left the track in safety. (b) The engineer operating the engine after the engine was set in motion did not give warning to petitioner’s husband of the approach of the engine and cars after it became apparent to’ him, in the exercise of ordinary care, or should have become apparent to him had ordinary care been exercised by him, that plaintiff’s husband was not aware of the approaching train; and after it was apparent to the engineer, in the exercise of ordinary care,, that plaintiff’s husband would not get off the track without warning, the engineer did not, blow the whistle, ring the bell, or give other warning, but negligently, carelessly, and with recklessness amounting to wantonness, ran down petitioner’s husband and killed him. (c) The engineer, after seeing the position of peril in which petitioner’s husband was placed, did not slacken the speed of his engine, did not have the same under control, but negligently permitted the cars attached to the engine to overtake petitioner’s husband and run him down and kill him, when in the exercise of ordinary care the speed of the engine could have been checked, the engine could have been under proper control, and no harm would have resulted. (d) Defendant company violated its rules in not having a watchman, flagman, or lookout on the front of the cars as they were backing towards plaintiff’s husband, to give signals to the engineer, and also to give warning to persons then and there using the track of the defendant as a passageway toward the passenger-train. The grounds of demurrer were: (1) That the petition set forth no cause of action against the defendant, and set forth no facts on which a recovery could legally be based. (3) That the allegations were not sufficiently definite or certain, nor sufficiently full and explicit as to the manner which the alleged acquiescence and permission of the defendant was manifested with respect to persons walking along its road-bed and between its tracks, nor as to the permission or assent of the defendant to such use of its tracks or road-bed by pedestrians, nor as to the alleged license by which it is claimed that pedestrians were entitled to the use of said road-bed; that said petition was defective in failing to state whether such consent, license, acquiesence, or permission was manifested by acts or by words, and, if. by words, in failing to state whether the same were oral as coming from some authorized representative of the defendant, or were in writing, and, if in writing, in failing to state what the writing was and tlie language thereof; that the petition was further defective in failing to state any facts showing any custom or license, acquiescence or permission, in respect to the matters alleged. (3) That the petition wás further defective in not setting out the rules of the company referred to, or designating them with sufficient certainty to enable the defendant to determine what rules were referred 'to. Upon the hearing the judge passed the following order: “Upon consideration of defendant's demurrer to plaintiff's amended petition, and of the argument of counsel thereon, it is considered,- ordered, and adjudged that the general demurrer be and the same is hereby sustained and the petition dismissed.”</p>

<p>Complaint for land. Before Judge Seabrook. Tattnall superior court. April 23, 1910.</p>

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

<p>1. A municipality and its ministerial officer charged with the collection of municipal taxes are proper parties defendant to a suit to enjoin the 'collection of city taxes. The municipality should be declared against in its corporate name; but a petition to enjoin the collection of municipal taxes, wherein the ministerial officer of the municipality charged with the enforcement of the tax is made a party defendant and it is attempted to make the municipality also a party, but its corporate name is incorrectly given, is amendable by making the municipality a party in its true corporate name.</p> <p>2. In a suit to enjoin the collection of municipal taxes, on the ground that the act of the General Assembly authorizing the tax and extending the territorial limits of the municipality so as to embrace the plaintiff’s property upon which the tax is levied is unconstitutional and void, the municipality is a necessary party.</p> <p>3. A municipality delegated with the power of collecting its taxes by execution should pursue the statutory direction as to form, if any is given. Where the statute prescribes that a certain official shall issue the execution, if there be an omission to state that it issues in the name of the municipality, or, if the corporate name of the municipality is incorrectly given, such omission or error will not render the execution void if it can be gathered from the whole writ that it is issued pursuant to statutory authority. Such omission or error will be treated as a harmless irregularity. In order to call into question the legal sufficiency of a.tax execution issued by a municipality, the fi. la. must be set out literally or in substance.</p>

<p>The Court of Appeals certified to the Supreme Court the following questions:</p> <p>1. A railroad company prior to the year 1909, with the co-operation of certain of its employees, organized what is called the relief department for the payment, to sueh of its employees as became members (or to their families), of monetary benefits in ease of illness, accidental injury, or death, and for that purpose a fund known as the relief fund was raised, said relief fund, under the regulations adopted, consisting of “contributions from members, income derived from investments and from interest paid by the company, and advances by the company when necessary to pay benefits as they become due.” ■ The contributions of the members were certain- stipulated sums deducted from their wages each month by the company. The company had general charge of the relief department, guaranteed the fulfilling of its obligations, and paid the operating expenses thereof, holding the moneys of the relief fund in trust for the department, and paying interest thereon at the rate of 4% per anmrm. The company also agreed, that, “if the amount contributed by the members to the relief fund, with interest and other income, shall not be sufficient to pay the benefits as they become due, the company shall advance from its own -funds whatever sums may be necessary for this purpose, reimbursing itself if and when the contributions of members with interest and other income are sufficient therefor.” An employee of the company, in becoming a member, made the following agreement as a part of his application : “In consideration of the amounts paid and to be paid by said company for the maintenance of said relief department, and of the guarantee by said company of the payment of said benefits, the acceptance by me of benefits for injury shall operate as a release and satisfaction of all claims • against said company; . . and further, if any suit shall be brought against said company, or [any] other company associated therewith as aforesaid, for damages arising from or growing out of injury or death occurring to me, the benefits otherwise payable, and all obligations of said relief department and of said companj', created by my membership in said relief fund, shall thereupon be forfeited without any declaration or other act by said relief department or said company.” Each member agreed to be bound by the regulations, one of which provided that “in case of injury to a member he may elect to accept the benefits in pursuance of these regulations, or to prosecute such claims as he may have at law against the'company or any companies associated therewith in the administration of their relief departments.” (A full copy of the application, contract, and regulations are incorporated in the record herewith transmitted, to which reference may be had for further details, if necessary.) An employee of the railway company in question made application and became a member of the relief department in 1906, and in December, 1909, was hurt through the negligence of another employee of the railway company, ■who stood to' him in the relation of fellow servant. The injured employee brought suit against the company and the fellow servant. It apipears that he had accepted a certain portion of the benefits due him from the relief department on account of his injury, and that the railway company had contributed a certain part of the money so paid him. Did the fact that he had accepted these benefits operate to release the defendants, or do the provisions of the act of August 16, 1909, embodied in Civil Code (1910), § 3785, apply, so that thereunder the defendant was entitled merely to diminish the amount of the plaintiffs recovery by a set-off of the sum-it had contributed to the benefit paid to the plaintiff?</p> <p>2. If it be held that the statute referred to in the preceding question is applicable as indicated therein, then is said statute unconstitutional as being violative of art. 1, sec. 3, par. 2, of the constitution of Georgia (Civil Code (1910), § 6389), which provides that no law impairing the obligation of contracts shall be passed, and because, as applied to the case at bar, the facts of which are indicated in the preceding question, it impairs the obligation of the contract between the plaintiff and the defendant, whereby the plaintiff agreed, in becoming a member of the relief department, that acceptance of the benefits in case of injury should release the defendant from all liability on account of said injury?</p> <p>3. If it be held that the statute referred to in the first question is applicable to the state of facts presented and therein indicated, is the statute violative of the 14th amendment to the constitution of the United States, on the alleged ground that it abridges the privileges of the railway company to contract, or on the alleged ground that it deprived the railway company and its relief department of their liberty without due process of law, in that it deprives them of the liberty to make the contract in question?-</p> <p>The foregoing questions were certified in the case of Washington. The same questions were certified in the case of Chandler, except that it was stated that the employee became a member of the relief department in July, 1909, and was injured in October, 1909, after the passage of the act of August 16.</p>

<p>Equitable petition. Before Judge Littlejohn. Lee superior court. December 31, 1909.</p>

<p>Intervention. Before Judge Whipple. Ben Hill superior court. January 18, 1910.</p>

<p>Where an attack is made on the reasonableness of an ordinance because of certain extrinsic facts, the burden is on the party attacking the ordi- . nance to prove such facts, and upon his failure to carry this burden the ordinance will not be declared invalid. In this case the plaintiff failed to carry the burden of proof.</p>

<p>1. It may be stated as a general rule, that, if a trespass on person or property amounts to a felony, the killing of the trespasser will be justifiable, if necessary, in order to prevent it; but a trespass which amounts to a misdemeanor only will not justify a killing.</p> <p>(a) The doctrine of reasonably apparent necessity, as the equivalent of actual necessity, is to be taken in connection with this rule.</p> <p>2. If an owner of property is authorized to use reasonable force for its protection, or recaption from a fleeing thief, and does no more, and such thief resists the owner with force, his conduct may be such as to place him in the position of the aggressor, and to authorize the owner to defend himself by the use of further reasonable force.</p> <p>3. If one steals the property of another and flees, and the owner, upon learning later of the theft, pursues and overtakes him at a distance from the place where the larceny was committed, and without any effort to retake possession by peaceable means and without any necessity to take life, fires upon the thief and kills him, such a killing is not justifiable, though the theft be a felony.</p> <p>(a) The right to arrest an escaping felon, under the Penal Code (1910), § 921, involves a different principle from mere recaption of property.</p> <p>(b) There was no error in charging in accordance with the principles above ruled, the presiding judge having instructed the jury as to the law of voluntary manslaughter, as well as that of murder and justifiable homicide.</p> <p>4. While the charge of the court was not free from criticism, nothing in it requires a reversal of the judgment.</p>

<p>Exceptions to auditor’s report. Before Judge Whipple. Ben Hill superior court. Februaiy 23, 1910.</p>

<p>Ejectment. Before Judge Frank Park. Decatur superior court. March 1, 1910.</p>

<p>Equitable petition. Before Judge Parker. Charlton superior court. April 11, 1910.</p>

Complaint. Before Judge Felton. Bibb superior court. May 5, 1910.

<p>Exceptions to auditor’s report. Before Judge Meadow. Elbert superior court. March 15, 1910.</p>

<p>Action for damages. Before Judge File. Bartow superior court. July 16, 1910.</p>

<p>Action for damages. Before Judge'Lewis. Jones superior court. October 18, 1910.</p>

<p>Habeas corpus. Before Judge Whipple. Dooly superior court. February IS, 1911. „ •</p>

<p>Equitable petition. Before Judge Frank Park. Decatur superior court. May term, 1910. ,</p>

<p>Prohibition. Before Judge Frank Park. Grady superior court. March 6, 1911.</p>

<p>Complaint. Before Judge Frank Park. Decatur superior court. May 20, 1910.</p>

<p>Equitable petition. Before Judge Frank Park. Worth superior court. August Vt, 1910.</p>

<p>Attachment. Before Judge Felton. Bibb superior court. June 6, 1910.</p>

<p>Intervention. Before Judge Felton. Bibb superior court. June 18, 1910.</p>

<p>Complaint. Before Judge Reagan. Butts superior court. July 7, 1910.</p>

<p>Indictment for murder. Before Judge Daniel. Butts superior court. May 16, 1911.</p>

<p>Indictment for murder. Before Judge Frank Park. Baker superior court. June 5, 1911.</p>

<p>Cancellation of deed. Before Judge Park. Grady superior court. September 6, 1910.</p>

<p>Alimony. Before Judge Gilbert. Taylor superior court. April 6, 1910.</p>

<p>1. A judgment setting apart a year’s support is not void because the appraisers’ return was not filed within thirty days of their appointment.</p> <p>2. As against creditors whose debts are not secured by the loan deed, a judgment of year’s support, assigning the widow and minor children of a decedent a specifically described tract of land, subject to a loan deed for a stated amount, is not void on the ground that the title to the land was not in the decedent.</p>

<p>Ejectment. Before Judge Frank Park. Mitchell superior court. June 4, 1910.</p>

<p>The petition as amended did not set forth a cause of action, and was properly dismissed on genera] demurrer.</p>

The Court of Appeals certified the following questions: In the foregoing case an act of the General Assembly of this State, to wit, an act approved August 15, 1908 (Acts 1908, p. 83), entitled “An act to make it a misdemeanor to charge any rate of interest greater than five per'cent, per month, either directly or indirectly, and for other purposes,” is attacked as being unconstitutional; and a decision of the.following constitutional questions involved is necessary to a…

<p>Annulment of marriage. Before Judge Charlton. Chatham superior court. January 27, 1910.</p>

<p>Equitable petition. Before Judge Pendleton. Butts superior court.. August term, 11)10.</p>

<p>Complaint for land. Before Judge Lewis. Greene superior court. November 29, 1910.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. April 25, 1911.</p> <p>On January 19, 1911, the following ordinance was adopted by the mayor and general council of the City of Atlanta: ’“Sec. 2. That any firm, person, or corporation desiring to operate, maintain, and to have or open up any club wherein lockers axe provided for the use of members, fees charged either for membership or for use of lockers or for other purposes, having a club-house, clubroom, parlors, or other general places of meeting, shall file a petition with the mayor and general council, asking for license therefor, and such petition shall give the name of the club, the name of the president, secretary or manager in charge thereof, its location, the number of members, and the amount of entrance fees paid or to be paid, dues and charges for lockers or locker service, and such other information as will put the general council in full possession of the facts surrounding such club or proposed club, by which it can decide whether the same is a bona fide social or locker club. Sec. -3. That any club already licensed or hereafter licensed shall, 'when demand is made b}r anjr member of the general council or of the police department, at the club-room or place of meeting, exhibit the roll of membership upon which only bona fide members ' of the club shall be written. Said club, its officers, and employees shall at all times comply with this requirement, and shall keep said roll of membership at the club-room or place of meeting where same can at any time be produced when said demand is made. See. 4. That any social or locker club licensed as herein provided, charging membership dues and having or operating, in connection with the club, lockers or locker service or serving meals or lunches therein, or having any service such as billiards, cigars, etc., from which revenue is derived, shall pa}^ to the City of Atlanta the sum of three hundred dollars per annum as a license.or registration fee, same to be. paid as other business licenses are collected. . Sec. 5. That any person, firm, or corporation, their agents or employees, who shall maintain, operate, or cany on or take part in the maintenance or operation of any club in violation of the provisions of this ordinance, or without securing the permit or license therefor as herein provided, or without paying the license therefor as fixed in the preceding section, shall, on conviction in the recorder’s court, ■be punished by a fine not exceeding five hundred dollars, or sentenced to work on the public works for not exceeding thirty days, either or both penalties to be inflicted in the discretion of the recorder. Sec. 6. That any club, officer, or employees thereof, who ■ shall refuse to admit any. member of the general council.or of the ¡department of police therein on demand, or who shall refuse to exhibit the roll of membership provided for in this ordinance, or who shall not permit an inspection of such club-room or meeting-place on demand, shall be deemed guilty of an offense, and on con- •• viction in the recorder’s court shall be punished as provided in section five .of this ordinance. Sec. 7. That no license ■ or permit shall- be granted to any club or similar organization unless it ap- ■ pears that the same is a bona fide social or locker club, and not -instituted or operated, with or without charter, for the purpose of providing a place wherein intoxicating liquors, beers, wines, etc., may be furnished under the form of a club, or in or at which there is now operated or maintained a bona fide social or locker club as herein provided for, and any person or persons, either by themselves or others, who shall undertake, with or without charter, to operate a club or like organization for the purpose of supplying liquors, wines, beers, etc., through the form of a club, without having, maintaining, or operating a bona fide social of locker club, shall be deemed guilty of an offense and on conviction in the recorder’s court shall be punished as provided in section five of this ordinance. Sec. 8. That no license or permit shall be issued to any club, either with or without charter, unless it appears that same is operated, maintained, or proposed to be operated as a bona fide social or locker club, having a bona fide membership, club-house, room, or place of meeting maintained as a social club at which meals, lunches, etc., are served, lockers are maintained for the bona fide use of members only, charges made therefor, and not as a cloak or subterfuge for the sale of intoxicants, having a membership whose dues or entrance fees are sufficient to provide for the maintenance of such organization and the expenses thereof, and operated and maintained in an orderly manner [and] comply with all the laws of the State and the ordinances of the city.”</p> <p>On February 23, 1911, a license was issued under the terms of this ordinance, upon the payment of the tax therein provided, to the Union and Mechanics Club, a corporation organized as a fraternal and social club. After getting the license the club equipped a club-room and provided it with facilities as a locker club. The city, through its committee on police, made an investigation of the books and system of running the club, and recommended the revocation of the club’s license. This recommendation of the' committee on police was adopted and the license tq operate the club was revoked, and the Union and Mechanics Club was notified to cease business or they would be prosecuted if they proceeded to operate the club after the revocation of their license. Whereupon the club filed its petition alleging that the ordinance was void as being unreasonable and without authority of the mayor and general council of the City of Atlanta to adopt it, and praying that the cit3r be restrained from, interfering with the club, its officers and employees, in conducting and maintaining the club. On the rule to show cause the city presented its demurrer and answer; and after hearing evidence the court revoked the restraining order and refused an injunction. The plaintiff excepted.</p>

<p>A contract, the legal import of which is that it shall be performed “presently,” means, not that it may be performed “within a reasonable time,” bnt that it must be performed “immediately, now, at once.”</p> <p>(a) Applying this rule to the facts of the present case, the purchaser of the land in question was not entitled to speeiiie performance of the contract. ,</p>

<p>Where the court of ordinary grants an order to an administrator to sell the wild uncultivated lands of his intestate either at private or public sale, the administrator may sell as authorized. If the land to be sold is located in a county other than that of the administration, and the administrator elects to sell at public sale, the situs of the sale is the county having jurisdiction of the administration of the estate, in the absence of a provision in the order of sale fixing the place of sale in the county where the land to be sold is located.</p>

<p>1. In an action on the case against a sheriff for damages resulting from a breach of duty on the part of his deputy by omitting to take the statutory bond in a bail-trover suit, seize- the property, or commit the defendant to jail, the petition in its declarative part did not expressly allege that the plaintiff was the owner of the property involved in' the trover suit, or that the property at the time of the institution of'the trover suit, or subsequently, was in possession of the defendant, but a copy of the petition in the trover suit, together with the judgment in favor of the plaintiff therein, was attached as an exhibit and made a part of the petition in the suit for damages against the sheriff, and the petition so exhibited contained allegations to the effect that the property was that of the plaintiff and that the defendant was in possession of it at the time of the institution of the suit. Held, that, when taken in connection with the exhibit, the petition against the sheriff was not wanting as to such allegations of ownership by the plaintiff and possession by the defendant. '</p> <p>2. The petition sufficiently alleged a breach of official duty and resulting damages to the plaintiff for which the sheriff would be liable, and was not subject to general demurrer.</p> <p>8. It was error to disallow the amendment to the plea, and thereafter to strike the plea of the defendant.</p>

<p>Action of deceit. Before Judge.Frank Park. Calhoun superior court. June 9, 1910.</p>

<p>Application for partition. Before Judge Mitchell. Berrien superior court.. January 20, 1910.</p>

<p>Action upon insurance policy. Before Judge Charlton. Chat-ham superior court. January 22, 1910.</p>

Action for damages. Before Judge Seabrook. Liberty superior court. February 23, 1910.

Equitable petition. Before Judge Felton. Bibb superior court. February 24, 1910.

<p>• Motion to set aside judgment. Before Judge Felton. Bibb superior court. May 5, 1910.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. April 27, 1910.</p>

<p>Action for breach of warranty. Before Judge Felton. Houston superior court. May 11, 1910.</p>

<p>Application for dower. Before Judge Brand. Gwinnett superior court. July 12, 1910.</p>

<p>1. Where a plaintiff institutes an action against three defendants, praying to recover damages for trespassing on a described tract of land and to enjoin future trespasses, and subsequently amends his action by alleging that the three defendants are in possession of the land to which he claims title, and praying for a recovery of the land and mesne profits, the suit is converted into an action to recover land and mesne profits; and where he dismisses the action and brings another against one of the defendants to recover the same land and mesne profits, the second suit is to be treated as a renewal of the dismissed action.</p> <p>2. Where a plaintiff dismisses his action and a judgment for costs is entered which includes the fees of witnesses, the action can not be renewed without paying the costs embraced in the judgment (or filing an affidavit of inability to pay) so long as the judgment for costs is not reversed, set aside, or modified in some manner provided by law.</p>

<p>Appeal. Before Judge Brand. Jackson superior court. July 13, 1910.</p>

<p>No error of law appears, requiring a new trial, and the evidence was sufficient to support the verdict.</p>

<p>Where the presiding judge passes an order overruling a motion to dis-, miss a motion for new trial, made by the respondent at a time when the judge had jurisdiction to pass on such motion to dismiss, and providing that the movant have until a named date, which is the first day of the next term, to present for approval a brief of the evidence, and the movant duly files and presents for approval such brief on that day, while the order overruling the motion to dismiss stands unreversed the judge during such term or thereafter is without authority to dismiss the motion for new trial on another motion of the respondent, based on ,tlié same grounds on which the former motion was made, such grounds being that movant in the motion for new trial had not presented for approval a brief of the evidence within the time specified in orders of the judge passed before the order overruling the motion to dismiss.</p>

<p>Complaint. Before Judge Worrill. Early superior court. January 17, 1911. (See 134 Ga. 25.)</p>

<p>Complaint. Before Judge Whipple. Wilcox superior court. October 27, 1910.</p>

<p>Injunction.. Before Judge Whipple. Wilcox superior court. April 8, 1911.</p>

<p>Injunction, etc. Before Judge Whipple. Dooly superior court. January 21, 1911.</p>

<p>Petition for injunction. Before Judge .Frank Park. Decatur superior court. January 16, 1911.</p>

<p>Action for damages. Before Judge Roan. DeKalb superior court. November 12, 1910.</p>

<p>Injunction. Before Judge Boan. DeKalb superior court. March 25, 1911.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior, court. March 23, 1911.</p>

Equitable petition. Before Judge Felton. Houston superior court. May 11, 1910. It appears from the record that in 1854 Benjamin H. Gray died testate. Held: “This charge of the court was not erroneous, especially when taken in connection with the -other portions of the charge contained in the record,” citing two former decisions of this court. The decision was rendered at the August term, 1878, of this court.

<p>Disbarment of attorney. Before judge Charlton. Chatham superior court. July 2, 1910.</p>

<p>Beeeiversbip; Before Judge Martin. Pulaski superior court. July 2, 1910.</p>

<p>■ Complaint for land. Before Judge Park. Baker superior court. March 21, 1910.</p>

<p>Complaint. Before Judge Parker. Glynn superior court. June 15, 1910.</p>

<p>Claim. Before Judge Martin. Pulaski superior court.. June 25, 1910.</p>

<p>Action for damages. Before Judge Seabrook. Tattnall superior court. May 28, 1910.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. May 20, 1910.</p>

<p>Indictment for murder. Before Judge Frank Park. Calhoun superior court. March 20,1911.</p>

<p>1. Where in the course of a trial a party desires to impeach a witness by stenographic notes taken on a former trial, which notes are in an adjoining county, it is not an abuse of discretion to refuse to suspend the ease until the next day to allow an effort to be made to procure the absent notes; and especially is this so where the court allows the movant to introduce witnesses who deliver testimony in accord with the alleged absent memoranda.</p> <p>2. Relevant evidence dependent for its admissibility upon preliminary proof, which has been allowed without requiring such preliminary proof, should be considered by the jury; and an instruction which in effect withdraws such evidence from the jury is erroneous.</p> <p>3. Where on the trial of a ci’iminal case the accused sought to impeach a witness for the State by proof of a contradictory statement, and the State replied with proof denying that the witness made the statement, and the judge, in charging as to how witnesses may be impeached, read Renal Code (1910), § 1052, upon the subject, there being no evidence of the.good character of any of the witnesses, the last clause ’of that section, to the effect that a witxxess, when impeached, may be sustained by proof of general good character-, was inapplicable and improperly given in charge; but under the facts of the case, this was a harmless error.</p> <p>4. Where the court instructs the jury as to the different methods of impeaching a witness and the effect of a successful impeachment, and a party desires an elaboration of the law of impeachment or a eoncx'ete application of it, he should make a pertinent and timely written request.</p> <p>5. It is erroneous.to charge Penal Code (1910), § 1011, that “the existence of a fact testified to by one positive witness is rather to be believed than that sxxch fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired,” without an instruction, in connection therewith, touching the credibility of witnesses.</p> <p>6. The evidence did not authorize an instruction on the law of voluntary manslaughter. The criticism that the evidence did' not authorize certain charges is not well founded.</p>

<p>Indictment for rape. Before Judge Littlejohn. Webster superior court. June 28, 1911.</p>

<p>Indictment for murder. Before Judge Worrill. Early- superior court. June 10, 1911.</p>

<p>A suit for specific performance of a contract for the sale of land is notice of the claim that the plaintiff sets irp therein, from the time it is commenced, and docketed; and if duly prosecuted and not collusive, one pui’chasing the land pending the suit is affected by the final decree rendered therein, though the suit is in a county other than the one in which the land is located.</p>

Claim. Before Judge Littlejohn. Sumter superior court. November 28, 1910. An execution in favor of the plaintiffs in error against A. B. Hinkle, administrator of J. B. Hinkle, deceased, was levied upon a tract of land, and the defendant in error, Mrs. Nita 0. Hinkle, filed a claim thereto. Upon the trial the court granted an order nonsuiting the case and dismissing the levy, and to this order the plaintiffs in fi. fa. excepted.

<p>1. Where the title of an act provides for the establishment of a court, the appointment of a judge and a solicitor, and the definition of their powei-s and duties, a provision in the body of the act fixing the fees of the solicitor and the mode of their payment is germane to the general object of the act, and does not offend the constitutional inhibition against the enactment of a law containing matter different from what is expressed in the title.</p> <p>2. The General Assembly is expressly empowered to establish such courts as in its wisdom it may deem proper. In the establishment of a city court, uniformity in procedure, jurisdiction, or powers is not required. The constitutional provision respecting writs of error to the Court of Appeals from the city courts of Atlanta and Savannah and other like courts concerns only the right of review by direct bill of exceptions, and contains no restriction upon the legislature in fixing the compensation of the officers of other city courts in a manner different from that prescribed for the officers of the city courts of Atlanta and Savannah.</p> <p>3. The fees of the solicitor of the city court of Richmond county are an expense of that court and lawfully payable from the funds raised to defray the expenses of that, court.</p> <p>4. The provision in the act establishing the city court of Richmond county for the payment of the fees of the solicitor “out of any funds which may be in the treasury,” considered in connection with the act of 1894, is to be construed harmoniously with the general law that taxes are to be levied for specific uses and applied only to such uses; .and when thus construed, the fees of the solicitor are to be paid from funds legally available for that purpose. The pleadings admit that there is in the treasury a legally available fund more than sufficient to pay the-solicitor’s demands.</p> <p>5. When a case is terminated in the city court of Richmond county by a judgment of nolle prosequi, the solicitor is entitled to his fee for drawing the accusation and entering the nolle prosequi, and the judgment of the court allowing the entry of nolle prosequi can not be collaterally attacked by the treasurer of the county, upon whom the law devolves the,duty of paying the solicitor’s costs when duly audited.</p> <p>6. The offenses of stabbing, larceny from the person, and larceny from the house are reduced felonies under the act of March 20, 1866, and the solicitor may charge felony costs in such cases.</p> <p>7. Under the admitted facts the applicant was entitled to the writ of mandamus.</p>

Mandamus. Before Judge Walker. Richmond superior court. June 6, 1911. 'On February 13, 1873, an act was approved which read as follows: “Be it enacted by tbe General Assembly of the State of Georgia, that whenever at any term of tbe superior court of any county of tbe Augusta judicial circuit a majority of the grand jury shall so recommend, the judge of the superior court shall grant to the solicitor-general an order upon the county treasurer for the payment of any account…

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

<p>Indictment for murder. Before Judge Daniel. Butts superior court. June 3, 1911.</p>

<p>Where a bill of exceptions, on October 19th, 1909, was presented to the judge, who held the same for examination until December 14th, 1910, before certifying it, and counsel for the plaintiff in error in the meantime made no effort to obtain a mandamus to compel the judge sooner to certify the bill of exceptions, the writ of error will be dismissed.</p>

Affidavit, of illegally. Before Judge Charlton. Chatham superior court. March 12, 1910. On August 6, 1909, N. N. Jones as principal and J. V. and J. H. Norton as indorsers, gave the Citizens & Southern Bank eighteen promissory notes aggregating $3,500, maturing at the rate of one note on the sixth day of each succeeding month after their execution.

<p>Intervention; from Douglas. Motion to dismiss writ of error.</p>

<p>Complaint for land. Before Judge Whipple. Wilcox superior .court. ' April 8, 1910.</p>

<p>Action ior breach of contract. Before Judge Bell. Fulton superior .court. January 1, 1911.</p>

<p>Injunction. Before Judge Con vers. Glynn superior court. October 15, 1910.</p>

<p>1. The verdict was contrary to the evidence and without evidence to support it, and a new trial should have been granted on that ground.</p> <p>2. There was no error in overruling the general demurrer to the petition.</p>

<p>This ease is controlled by the decision in McOarry v. Seim, 129 Ga. 296 (58 S. E. 856). The court did not err in sustaining a general demurrer to the petition.</p>

Action, for damages. Before Judge Pendleton. Fulton superior court. July 19, 1910.

<p>1. Where, having reference to the contemplated construction of a system of waterworks, a civil engineer made to the municipal authorities of the town proposing to construct the waterworks a written proposition offering his services in the following language: “I will do all the work necessary to get up a complete set of plans and specifications for your proposed waterworks; said plans and specifications will be such that you will be able to invite bids on the same; and after the contract is awarded from the bids, I will supervise the construction of the work and see that the same is carried out according to the plans and specifications adopted by you. I will make a proposition to do all the work for the lump sum of fifteen hundred dollars, this amount to include all expenses of getting up the plans and specifications and the supervision Of the work after the same has been contracted;” and this proposition was accepted without additional stipulation or qualification, the engineer could not recover against the municipality for additional services and expenses which were rendered and incurred by him after the time fixed in a contract between the municipality and the contractors who were to construct the waterworks had expired. His right of recovery was limited to the lump sum named in the proposal.</p> <p>2. The contract was free from ambiguity. And the engineer could 'not, in a suit against the municipality, based upon' this contract, open the way for the introduction of parol evidence which would alter or change the terms of the written instrument, by allegations as to his understanding of the terms and scope of the written contract and that his understanding of it was known to the municipal authorities.</p> <p>3. Stipulations in the contract between the municipal authorities and the contractors who undertook the work of construction, providing for penalties in the event of failure on the part of. the contractors to carry out the terms of their contract with the municipality, could not be invoked by the plaintiff in this case, who was not a party to the contract last referred to.</p>

<p>The court did not err in directing a nonsuit in this case.</p>

<p>1. Where a will is offered for probate in solemn form, all of the attesting witnesses who are in 'life and within the jurisdiction of the court are necessary witnesses.</p> <p>2. Where an amendment to a caveat was offered and rejected by the court, it did not become a part of the record; and this court will not review the ruling of the court below in rejecting the amendment, it appearing that the same is not set out in the bill of exceptions or attached to the same as an exhibit properly authenticated.</p>

<p>Intervention. Before V. E. Power, judge pro hae vice. Cobb superior court. May 31, 1910.</p>

<p>Action for' damages. Before Judge Fite. Dade superior court.' June 9, 1910.</p>

<p>Action, fox damages. Before Judge Fite. Bartow superior court. July 16, 1910.</p>

<p>Processioning. 'Before Judge Maddox. Floyd superior court. April 18, 1910.</p> <p>G-. H. Braden made application to two of tlie processioners appointed in and for tlie 859th district, G. M., Floyd county, by the board of commissioners of roads and revenue, to procession his lands. Tim +wo processioners, with the county surveyor, proceeded to mark out the lines of his lánd, and, upon completion of their work, made their return to vthe ordinary of the county. Attached to their return was a plat of the lands of Braden, made by the surveyor. Tt was stated in the return of the processioners that service of the ten days written notice, as required by law, had been made upon all the adjoining-land owners, naming them. C. IV. Martin filed his protest to this return, alleging, that he was an adjoining-land owner and had not been served with the notice required by law; that the application of Braden was made to only two of the alleged processioners of the district, and not to three as required by law; that neither of the persons presuming to act as processioners were in fact such, being appointed by the board of commissioners of roads and revenue, and not by the ordinary as the law requires; that no notice was given to protestant as required by the statute; and he pointed out certain alleged errors and defects in the return, and that the plat was void because too vague and indefinite to be intelligible. Upon the hearing it was admitted by counsel for Braden that the processioners were appointed by the board of commissioners and not by the ordinary, and it was further admitted that C. IV. Martin, who filed the protest, did not have any written notice of the processioning proceeding, though he was not named as an adjoining-land owner in the return of the processioners. No evidence was introduced, but the court, on the showing made by the protest and the admissions of counsel for Braden, passed an order sustaining Martin’s objections; and Braden excepted.</p>

<p>The assignee of a bond for title for the conveyance of certain personal property to the obligee when the latter has paid all the notes given for the purchase-money as they might fall due upon the respective dates of their maturity, it being provided in the bond that the vendor should have the right to retake possession of the property upon default in payment of any one of the notes, could not maintain suit against the obligor, who had taken possession of the property upon default in payment of the notes by the obligee according to the terms of the contract of sale, to recover the amount of a toan to the obligee in the bond, although such assignee had taken the assignment of the bond to secure the payment of the loan, and the loan was made with the knowledge of the obligor for the purpose of enabling the obligee to meet one of the partial payment notes at the time of its maturity.</p> <p>(a) Conceding that the assignment of the bond for title would operate as a partial assignment of any amount which the vendor, who had retaken possession of the property under circumstances which rendered such retaking a rescission of the contract of sale, would owe to the vendee on account of payments-made by the latter under the contract of sale after making proper deductions from the sum. paid by the vendee, for rent, etc., a partial assignment is enforceable only in equity in a suit to which the vendor and the assignor and the assignee are all parties.</p>

<p>At the conclusion of the testimony introduced by the plaintiff there was no evidence before the court and jui'y that would have authorized a recovery against the defendant, and the court did not err in granting a nonsuit.</p>

<p>1. The court did not err in overruling the motion for a continuance.</p> <p>2. The court correctly instructed the jury as to all the material issues involved in the case, and the. exceptions to the charge are without merit. The evidence amply supported, if it did not demand, a verdict for the plaintiff.</p>

<p>Complaint for land. Before Judge llawlings. Emanuel superior court. February 19, 1910/</p>

<p>Equitable petition. Before Judge Morris. Milton superior court. Mareli 8, 1910.</p>

<p>1. The general demurrer to the petition was properly overruled.</p> <p>2. The special demurrers to so much of the petition as sought to restrain the directors of the defendant corporation from holding a meeting for the purpose of electing a successor to the plaintiff, who was holding over beyond the term for which he had been elected, should have been sustained.</p>

<p>Complaint. Before Judge Fite. Catoosa superior court. February 11, 1910.</p>

<p>A shipper, who is both consignor and consignee, can not maintain against a carrier an action ex contractu for the value of goods consigned to the carrier for shipment arid not delivered, when the carrier tenders the goods at destination in a damaged condition but refuses to deliver them unless the shipper pays the usual freight charges, notwithstanding the damages to the goods amount to more than the freight charges, and the shipper demands that the damages to the shipment be offset against the freight bill; on the theory that the refusal to deliver under the circumstances is a breach of the contract of carriage.</p>

<p>1. An amendment laying a new demise and preserving the action can be made in the fictitious form of ejectment although the original declaration contained only a demise of a person dead at the time of the commencement of the suit.</p> <p>2. On the trial of an action of ejectment, a lessor was competent to testify that another lessor, in whose name a prior demise was laid, at a given time, executed and delivered to the witness, as grantee, a deed to certain described land for which the action was brought, that the witness saw the grantor sign the instrument in the presence of two named witnesses neither of whom was an officer, that both of the witnesses and the grantor had since died, that the instrument was lost and could not be found, and that it had never been recorded; — the personal representative or transferee of such grantor not being a party to the suit.</p> <p>3. There was no merit in the grounds of the motion for a new trial based upon the alleged failure of the judge to properly state the contentions of the defendant below upon the trial of the case.</p> <p>4. The court charged the jury as follows: . “How, the defendant insists that he purchased some portion of the land’ in dispute, and that he has a right to hold the land as his. The court charges yo.u that the defendant has a right to set up any paramount title to this property, set up any title that is the best title to this property; and if you believe from the evidence that he holds the true title and that it has descended from the true owners, and that Captain Tift [the plaintiff] has not complied with the law, and has not come up to the requirements of the law, which gives prescriptive title, why the defendant would be entitled to recover, and your verdict would be in favor of the defendant.” This instruction was calculated to impress the. jury with the idea, that, before they would be authorized to find in favor of the defendant, the evidence had to be sufficient to show that the defendant held under a paramount outstanding title; that is, if it appeared from the evidence that there was an outstanding title superior to that of the plaintiff, he could nevertheless recover if the defendant was not connected with such outstanding superior title. The law is that the plaintiff must recover on the strength of his own title; and therefore if at the trial an outstanding title be shown superior to that of the plaintiff, he can not recover, although it be not shown that the defendant had title. As there was evidence tending to show an outstanding paramount title with which the defendant was not connected, the instruction was hurtful error to. the defendant.</p> <p>5. It was not error to charge the jury in effect that a prescriptive title, when fully shown by the evidence, is good as against the true owner of the land.</p>

<p>Contempt. Before Judge Pendleton. Fulton superior court. November 23, 1910.</p>