Volume 137 — Georgia Reports

The Court of Appeals certified to the Supreme Court the following questions: “Is the act of the General Assembly of the State of Georgia, approved August 12, 1910 (Georgia Laws 1910, p. 134), entitled ‘An act to prohibit any person from having or carrying about his person, in any county in the State of Georgia, any pistol or revolver without first having obtained a license from the ordinary of the county of said State, in which the party resides, and to provide how said…

<p>Indictment for murder. Before Judge Martin. Laurens superior court. April 12, 1911.</p>

<p>Indictment for murder. Before Judge Morris. Milton superior court. May 13, 1911.</p>

<p>Equitable petition. Before Judge Merrill. . Berrien superior court. September 21, 1910.</p>

<p>Petition for specific performance. Before Judge Merrill. Colquitt superior court. October 4, 1910.</p>

<p>Complaint. Before Judge Pendleton. Pulton superior court. October 14, 1910.</p>

<p>Complaint for land. Before Judge Reagan. Butts superior, court. November 21, 1910.</p>

<p>Complaint for land. Before Judge Beagan. Pike superior court. December 12, 1910.</p>

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

<p>Where a writing purporting to be the last will and testament of a testator is probated and admitted to record notwithstanding its defective execution as a will, and an heir of the decedent accepts from the executor possession of land therein devised to him, treating the same as his own, such devisee, after the lapse of a great length of time, and without offering to restore the property to the estate, will be estopped from denying the validity of the paper as a will, or questioning the jurisdiction of the court admitting it to probate.</p>

<p>Action for breach of contract. Before Judge Worrill. Quitman superior court. December 15, 1910.</p>

<p>Equitable petition. Before Judge Whipple. Wilcox superior court. October 17, 1910.</p>

<p>Partition. Before' Judge Merrill. Colquitt superior court. October 4, 1910.</p>

<p>Ejectment. Before Judge Merrill. Colquitt superior court. December 30, 1910.</p>

<p>In order for the vendor of personal chattels to exercise his equitable right of reclamation on the ground that the purchaser, being insolvent at the time of obtaining the goods, committed a fraud by misrepresenting his solvency and financial standing in statements to the seller, made for the purpose of procuring the goods, and thereby deceiving him and inducing him to act to his injury, it is incumbent upon the vendor, promptly upon discovery of the fraud, to repudiate the contract and make his reclamation. If he omits to do so, but does some affirmative 'act recognizing title in the purchaser, such as by suing out an attachment for purchase-money, and causing the property to be sold as property of the purchaser, he will thereafter be estopped, in a contest over the proceeds of sale (brought into court by the sheriff) with the trustee in bankruptcy of the purchaser, from asserting his right of reclamation.</p>

<p>Petition for specific performance, etc. Before Judge Bell. Fulton superior court. December 10, 1910.</p>

<p>Claim. Before Judge Ellis. Fulton superior court. December 7, 1910.</p>

<p>Injunction and interpleader. Before Judge Ellis. Eulton superior court. December 27, 1910.</p>

Complaint. Before Judge Freeman. Heard superior court. September 20, 1910. The defendant in error (hereinafter called the plaintiff) brought suit against the plaintiff in error (hereinafter called the defendant) for damages, making substantially the following allegations: Plaintiff and defendant, on June 30, 1909, entered into a written contract, of which the following is a copy: “6/30/1909.

<p>Injunction. Before Judge Freeman. Meriwether superior court. June 9, 1911.</p>

<p>There was no error in the ruling of the judge refusing to grant an injunction.</p>

<p>Action, for damages. Before Judge Beagan. Monroe superior court. October .29, 1910.</p>

<p>Petition for injunction. Before Judge Worrill. Terrell superior court. May 30, 1911.</p>

<p>Action for breach of contract. Before Judge Whipple. Irwin superior court. December 3, 1910.</p>

<p>Equitable petition. Before Judge Frank Park. Decatur superior court. November 19, 1910.</p>

<p>Intervention. Before Judge Pendleton. Fulton superior court. November 28, 1910.</p>

<p>Trover. Before Judge Bell. Fulton superior court. November 15, 1910.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. December 7, 1910.</p>

<p>Lien foreclosure. Before Judge Hammond. Burke superior court. November 18, 1910.</p>

<p>Award of money. Before Judge Hammond. Richmond superior court. January 21, 1911.</p>

<p>1. Under rule 8 of the superior courts (Civil Code (1910), § 6264) counsel may only demand a reasonable and proper extension of time for argument. Where, in addition to the two hours allowed by the rule for argument, counsel demanded another hour, and the court announced that he would allow half of the additional time requested, with the remark that the case could be properly argued within that'time, and that in the circuit over which he presided there were good lawyers who rarely spoke over forty minutes, and where after the opening argument of defendant’s counsel the court notified counsel that he would allow the full time requested, and the full time was actually consumed in the argument, it is no ground for new trial that the extension of time requested was. refused in the first instance, and afterwards granted under the circumstances narrated.</p> <p>2. Where the solicitor-general assigned, as a reason for speaking briefly in opening the case to the jury, that he was indisposed, and counsel for the defendant, in his argument made during the solicitor’s absence from the court-room, asserted that in his opinion the real reason was that the solicitor did not believe the defendant to be guilty, a new trial will not be granted because the court allowed counsel for the State in the concluding argument to.argue that the solicitor was sick, and that the deduction of counsel for the defendant was unwarranted.</p> <p>3. In determining who was the aggressor in a conflict terminating in the death of one of the parties, the conduct of the parties, including their declarations immediately preceding the homicide, are parts of the res gestae. Where a homicide occurred at a railroad junction point, it is competent to prove by the station agent that the decedent alighted from one train and inquired about a connection of the other train, just prior to the fatal rencounter, as tending to explain the presence and purpose of the decedent at the place of the homicide.</p> <p>4. The charge on the subject of impeachment of witnesses was substantially like that approved in Powell v. State, 101 Ga. 9.</p> <p>5. One cannot create an emergency which renders it necessary for another to defend himself, and then take advantage of the effort of such other person to do so. The facts authorized an instruction to this effect, and the legal principle was not incorrectly stated in the charge complained of.</p> <p>6. The summary of the court, concretely applying the law to the case, though containing a slight verbal inaccuracy, was not calculated to mislead the jury to the prejudice of the accused.</p> <p>7. The statute defining voluntary manslaughter contains the declaration that “provocation by words, threats, menaces, or contemptuous gestures shall in no ease be sufficient to free the person killing from the guilt and crime of murder.” The reading by the court of the entire code section definitive of voluntary manslaughter (Penal Code, § 65) containing the quoted language, while charging on the subject of voluntary manslaughter, is not subject to the criticism that by so doing the court entrenched upon the law of justifiable homicide, in that the reading of the section tended to convey to the jury the implication that they could not consider threats, accompanied by menaces, as defined in Cumming v. State, 99 Ga. 662, as sufficient cause to arouse the fears of a reasonable man that his life is in danger or that a felony is about to be perpetrated upon him.</p> <p>8. The charge was not subject to the criticisms made on it, and the verdict is supported by the evidence.</p>

<p>Indictment for murder. Before Judge Sheppard. Tattnall superior court. June 6, 1911.</p>

<p>Indictment for murder. Before Judge Rawlings. Toombs superior court. May 6, 1911.</p>

<p>Indictment for murder. Before Judge Whipple. Crisp superior court. July 4, 1911.</p>

<p>Indictment for murder. Before Judge Bawlings. Bulloch superior court. June 22, 1911.</p>

<p>Indictment for murder. Before Judge Whipple. Dooly superior court. August 1, 1911.</p>

<p>Conviction of murder; from Appling superior court.</p>

<p>Indictment for murder. Before Judge Jones. Hall superior court. August 17, 1911.</p>

<p>Equitable petitioa. Before Judge Roaa. Troup superior court. November 14, 1911.</p>

<p>1. Where a guardian’s bond was executed for a specified amount, and subsequently, after one of the-sureties had died leaving an insolvent estate, and other property had come into the hands of the guardian, the mother of the wards, being one of the sureties on the bond, instituted a proceeding under the Civil Code (1910), §§ 3049, 3050, to require the guardian to give other and additional security, and on his failure to do so to' have the letters oi guardianship revoked and another person appointed, and in this proceeding an order was granted requiring the guardian to give other and sufficient security, etc., and the guardian subsequently executed a new bond for a less amount, with new sureties, such second bond was cumulative, and the sureties thereon were cosureties with those on the first bond for any past or future waste.</p> <p>(a) In a suit by the obligee against the sureties on the second bond for a devastavit, those on the first bond were not necessary parties, and in the absence of equitable grounds the sureties on the second bond were not entitled to have those on the first bond made parties to the suit for the • purpose of adjusting the rights between the several sureties.</p> <p>2. In a suit of the character mentioned in the preceding headnote, it was error for the judge to refuse to strike so much of the pleas of the sureties on the second bond as sought to set up the invalidity of the bond on the ground that it misrecited the date of the appointment of the • guardian.</p> <p>3. Where, in a suit on a guardian’s bond against the principal and sureties, the sureties denied the amount of the liability alleged, the fact that upon the trial the amount of the devastavit committed by the guardian was agreed upon by the parties did not make it erroneous to refuse to strike from the answer the denial of such amount.</p> <p>4. Where a plaintiff brought suit on a guardian’s bdnd,- and in one paragraph of his petition alleged that the defendants were indebted to him in a certain amount, without more, and one of the defendants denied it, there was no merit in a motion to strike such responsive part of a paragraph of the answer on the ground that “a simple denial of the indebtedness is not a legal defense to a suit on a bond.”</p> <p>5. Where a plaintiff causes to be certified exceptions pendente lite, assigning error upon numerous rulings of the court, and in the main bill of exceptions assigns error on the pendente-lite exceptions and the overruling of a motion for new trial, and in his brief states that he “insists upon each and every assignment of error, but because of the fact that many of these are practically identical, and some overlap others, the errors complained of will be classified and insisted upon in the following questions,” and following this statement are grouped the various legal propositions insisted upon, an assignment of error not embraced in such legal propositions as stated, nor otherwise alluded to in the brief, will be treated as abandoned.</p> <p>6. Under the pleadings and evidence, if the plaintiff was entitled to recover at all, he was entitled to recover from each of the sureties on the second bond the full amount of the devastavit; and it was erroneous as to him to divide the devastavit and find in his favor only a part against the sureties on such bond and a part against the sureties on the first bond.</p> <p>7. The second bond was given under an order granted by the ordinary in a proceeding for additional security, under the Civil Code (1910), §§ 3049, 3050, and was merely cumulative to the first, and did not operate to discharge one of the sureties on the first bond under an order previously granted by the ordinary in a proceeding for a discharge under the Civil Code (1910), § 3052. The sureties on both bonds were cosureties in proportion to the amounts of the respective bonds, but the suit being at law, and the plaintiff not having elected to sue the sureties on the first bond, and no equitable reasons being alleged which would authorize the sureties on the second bond to require those on the first bond to be made parties, it was erroneous for the judge, over objection of one of the latter, to order that the one so objecting be made a party.</p> <p>8. While a trial judge may, within the restrictions prescribed by'the Civil Code (1910), § 5926, direct a verdict, this court will in no case reverse a judgment refusing to do so.</p>

<p>Equitable petition. Before Judge Merrill. Lowndes superior court. November 22, 1910.</p>

<p>Motion for new trial. Before Judge Merrill. Berrien superior court. November 22, 1910.</p>

<p>Actiou for damages. Before Judge Martin. Pulaski superior court. November 5, 1910.</p>

<p>Action for damages. Before Judge Martin. Pulaski superior court. October 31, 1910.</p>

<p>1. The court erred in not sustaining the general demurrer to the petition.</p> <p>2. It clearly appears from the bill of exceptions who the parties to the ease were, and therefore there is no merit in the motion to dismiss the writ of error on the ground that “no one is named therein as plaintiff in error and no one is named therein as defendant in error.”</p>

<p>On November 13, 1909, a summons of garnishment, based on a pending suit, was served, commanding the garnishee to answer to the term of the superior court whibh would meet on January. 3, 1910. On the latter date a second summons in the same case was served on the garnishee, returnable to the March term of the court. This was accompanied by a written notice from the plaintiff, relieving the garnishee from answering the first summons, and directing it to make answer to the second. On January 17, the garnishee filed an answer, reciting that a summons of garnishment had been served on it, and denying indebtedness. To this a traverse was filed, but no exception taken on the ground of the time when it was made. At a later term a verdict and judgment by default were taken against the garnishee, based upon the second summons. At the same term when this was done a motion was made to set aside the verdict and judgment, alleging that the answer which it filed was made to the second summons. Held, that there was no error in granting the motion and setting aside the verdict and judgment.</p>

<p>Exceptions to auditor’s report. Before Judge Brand. Jackson superior court. August 30, 1910.</p>

<p>Appeal. Before Judge Edwards. Douglas superior court. September 21, 1910.</p>

<p>1. If one voluntarily becomes intoxicated by the use of a drug, this will not excuse him for the commission of a crime. But if mania or insanity, though caused by the use of a drug, be permanent and fixed in character, so as to destroy the knowledge of right and wrong as to the act, the person laboring under such infirmity will not be responsible.</p> <p>2. It was not relevant for the State’s counsel to ask an expert witness for the accused whether, in his opinion, a physician who treated the accused for insanity at an asylum and cured him could tell what produced it, unless the evidence of the physician effecting the cure was introduced.</p> <p>la) The admission of such statement in evidence could not have affected the verdict, and furnishes no cause for a reversal.</p> <p>3. Conversations of the accused and another person, some days before the commission of the homicide, in which the former expressed angry and threatening sentiments toward the decedent, were admissible to show the state of mind of the accused toward the person whom he killed. There was no error in admitting in evidence the parts of the conversations which rendered the sayings of the accused intelligible and showed the circumstances under which they were made.</p> <p>4. Where, on the trial of a person indicted for murder, the issue was one of sanity or insanity, and the sheriff of the county testified that on the day when the decedent died, and the day after he was shot, the accused was placed in the charge of the witness and so remained in jail for two or .three months, and that during such time the witness had conversations with the accused and observed him constantly with a view of ascertaining and determining his mental condition, and that from this the witness was in a position to give his opinion on the subject, the opinion of the witness, based on such facts, that the accused was insane during his incarceration, was admissible.</p> <p>5. Omitting cases of delusional insanity, where the question is one of general insanity, the test of criminal responsibility is whether the accused had sufficient reason to distinguish between right and wrong as to the act about to be committed.</p> <p>(a) A very thorough investigation as to the conduct and condition of the accused before, at the time of, and after the commission of the homicide having been had, and the witness mentioned in the fourth headnote having given no facts from which irresponsibility for crime could be inferred, the rejection of his mere general opinion that the accused was insane while in jail will not, under the evidence, require a reversal.</p> <p>6. The evidence sustained the verdict, and there was no error in overruling the motion for a new trial.</p>

<p>Indictment for murder. Before Judge Maddox. Floyd superior court. August 19, 1911.</p>

<p>Complaint for land; from Troup superior court.</p>

<p>Condemnation. Before Judge Daniel. Butts superior court. May 16, 1911.</p>

<p>Certified question; from Court of Appeals. 3431.</p>

<p>Action for damages. Before Judge Worrill. Randolph superior court. September 17, 1910.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. January 30, 1911.</p>

<p>Equitable petition. Before Judge Whipple. Wilcox superior court. November 19, 1910.</p>

<p>Complaint. Before Judge Parker. Glynn superior court. August 27, 1910.</p>

<p>Equitable petition. Before Judge Bell. Eulton superior court. October 1, 1910.</p>

<p>Complaint. Before Judge Parker. Glynn superior court. August 13, 1910.</p>

<p>1. Section 4068 of the Civil Code of 1910, which provides that “in other cases of extraordinary services [besides those previously enumerated], extra compensation may be allowed by the ordinary” to an administrator, applies to a temporary as well as a permanent administrator.</p> <p>2. Extraordinary services for which extra compensation may be allowed to an administrator are services rendered by him while administrator and in the discharge of his duties as such.</p> <p>(a) They do not include voluntary services rendered by a person in procuring a cemetery lot and rendering assistance in connection with the funeral of a decedent, though the person so acting is afterward appointed temporary administrator of such decedent; nor do they include an application by him to be appointed permanent administrator, which is successfully resisted by an heir of the intestate, and which results in the appointment of the latter.</p>

<p>Complaint. Before Judge Edwards. Louglas superior court. December 1, 1910.</p>

<p>Complaint. Before Judge Martin. Pulaski superior court. October 3, 1910.</p>

<p>1. The vendor in a conditional sale, having reserved title’ to the property so sold in the bill of sale, which is duly recorded, may, where the condi- ' tions of the sale have not been fulfilled so as to pass title to the vendee, assert title in an action of trover against a purchaser of the property at a bankruptcy sale, where the trustee sells the property of the bankrupt free from liens and encumbrances, it not appearing that the vendor has done any act which would estop it from such assertion of its title.</p> <p>(a) Mere failure by the vendor to claim the property or assert its title thereto would not operate as such estoppel.</p> <p>(b) Nor would the proof of an unsecured claim founded upon an open account operate as an estoppel, it not appearing that the vendor participated in the proceeds arising from the sale of the property which it sold to the bankrupt with a reservation of title in the vendor, the conditions of the sale not having been fulfilled.</p>

<p>1. An administrator’s sale made under tlie usual order as to the manner and place of sale, granted under the provisions of § 4028 of the Civil Code, but held at public outcry in a county other than that which had jurisdiction of the administration or in which the land was situated, was not sufficient to pass title to the land to the purchaser at such sale through a deed executed by the administrator or his attorney in fact, reciting the provisions of the order above referred to.</p> <p>2. The court did not err in granting a nonsuit.</p>

<p>1. A decree in a suit for annulment of marriage, based on the non-age of one of the parties, in so far as it establishes the status or marital relation, is to be regarded as a judgment quasi in rem, “but, beyond the adjudication of the status, the decree is binding only on parties and privies. In a cause of action between the defendant in the annulment suit and strangers, arising before the decree of annulment, and based on the legality of his marriage, he is not estopped from contesting with them the truth of the ground on which the decree was prayed.</p> <p>2. Birth may be proved by general repute in the family.</p> <p>3. The rejection of a certain part of a witness’s testimony will not require a new trial, where it appears from the brief of evidence that in another part of his testimony the same witness delivered substantially the same testimony.</p> <p>4. In a suit for malicious prosecution, where the defendants offer testimony that they acted under advice of counsel, it is not error for the court to charge in the language of the Civil Code (1910), § 4958, that clients are not relieved from liability for damages on the ground that they acted under the advice of counsel, but are entitled to redress from them for unskillful advice; the court further charging that advice of counsel may be considered in mitigation of damages.</p> <p>5. The committal of a defendant by a magistrate is prima facie, but not conclusive, evidence of probable cause.</p> <p>6. Where it is sought to impeach a witness because of a previous contradictory statement, the primary question for the jury is to ascertain whether the witness attacked made the alleged contradictory statement, and, if he did so, the next question is its effect on his testimony. The excerpt from the charge was not subject to the criticism made upon it.</p> <p>7. The other charges complained of were not subject to the exceptions made against them. The evidence supported the verdict, and no sufficient reason appears for new trial.</p>

<p>Processioning. Before Judge Mitchell — motion for new trial before Judge Merrill. Berrien superior court. November 24, 1910.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. July 13, 1911.</p>

Tbe Court of Appeals certified to tbe Supreme Court tbe following question: “Does tbe appointment of a temporary administrator constitute ‘ representation ’ upon • tbe estate of the decedent, within the purview of Civil Code (1910), § 4376, which provides that ‘ the time between the death of a person and representation taken upon his estate . . shall not be counted against his estate/ for the purposes of the statutes of limitation of actions?

<p>•Indictment for rape. Before Judge J. B. Park.- Madison superior'court. September 9, 1911.</p>

The Court of Appeals certified to the Supreme Court the following question: “In a prosecution for assault and battery, can the accused give in evidence, as a justification of the alleged assault and battery, opprobrious or abusive language written and published of him by the person upon whom he made the alleged assault and battery?

<p>Complaint. Before Judge Whipple. Irwin superior court. December 13, 1910.</p>

<p>Equitable petition. Before Judge Martin. Laurens superior court. September 3, 1910. -</p>

<p>Equitable petition. Before Judge Martin. Laurens superior court. September 3, 1910.</p>

<p>Petition for injunction. Before Judge Conyers. Camden superior court. November IS, 1910.</p>

Action for damages. Before Judge Conyers. Glynn superior court. December 21, 1910. William Williams instituted suit against the Mayor and Council of the City of Brunswick. The petition alleged that plaintiff was the owner of certain real estate in the City of Brunswick, and was engaged in constructing a building thereon.

<p>Complaint. Before Judge Parker. Coffee superior court. October 4, 1910.</p>

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

<p>Petition for injunction. Before Judge Bell. Fulton superior court. December 20, 1910.</p>

<p>1. The act approved September 16th, 1881 (Acts 1880-81, p. 533), in so far as it prescribes that the insolvent criminal costs of the sheriff of Richmond county may, upon recommendation of the grand jury, be paid out of any money in the treasury, is violative of art. 1, sec. 4, par. 1, of the constitution of this State (Civil Code, § 6391), which, among other things, declares that “no special law shall be enacted in any ease for which provision has been made by an existing general law.”</p> <p>(a) The eases of Clark v. Reynolds, 136 Ga. 817 (72 S. E. 254), and Adam v. Wright, 84 Ga. 720 (11 S. E. 893), distinguished.</p> <p>2. The act approved March 2d, 1874 (Acts 1874, p. 365), construed in connection with existing laws, as prescribed in sections 3696, 3675, and 4631 of the Code of 1873, does not authorize the payment of “insolvent criminal costs” to sheriffs from funds in the county treasury derived from taxation.</p> <p>3. Under the pleadings and evidence, the judgment granting a writ of mandamus absolute, compelling the county treasurer to pay insolvent criminal cost bills to the sheriff, was erroneous.</p>

<p>Mandamus. Before Judge Walker. Richmond superior court. June 6, 1911.</p>

<p>Petition fox injunction. Before Judge Bell. Foxsyth superior court. January 28, 1911.</p>

<p>Indictment for murder. Before Judge Frank Park. Worth superior court. September 23, 1911.</p>

<p>Complaint. Before Judge J. B. Park. Morgan superior court. June 17, 1911.</p>

<p>1. Where a dam was erected across a stream in a certain county for the purpose of generating electric power and producing lights, and water was backed up in the stream and its tributaries so as to extend into another county, the ordinary of the latter had no jurisdiction to proceed summarily, under Civil Code (1910), § 5333, for the purpose of abating the alleged public nuisance so caused.</p> <p>2. Where such ordinary, upon affidavit of certain freeholders, was taking steps to cause a jury to be summoned and to try the question of the existence of the alleged public nuisance, there was no error in the granting by the superior court of a writ of prohibition to prevent him from proceeding further.</p>

Injunction. Before Judge Charlton. Chatham superior court. August 24, 1911. In 1866 Barrington King died seized and possessed of a tract of land containing about fifty acres, located in Chatham county, and at that time some distance from the corporate limits of the City of Savannah.

<p>1. Charitable trusts are continuing^ executory trusts, and not within the statute of uses.</p> <p>[(a) There was no error in overruling the demurrer to the petition of the plaintiff.</p> <p>2. A landowner executed a deed to the Protestant Episcopal Church in the Diocese of Georgia, described as a corporation. It recited a consideration of $10, “as well as the desire she, the party of the first part, has for the encouragement and promotion of the interests of the Protestant Episcopal Church.” The habendum clause. contained the following: “To have and to hold . . unto the said party of the second part, its successors and assigns, in trust nevertheless for the use and benefit of the religious congregation in the county and State first mentioned, called ‘ St. John’s Protestant Episcopal Church,’ its successors and assigns.” There was evidence tending to show that there was at that place an existing congregation known as St. John’s Church, or St. John’s Mission, though it was never formally organized as St. John’s Church. Held, that the trust so created was not void for want of a beneficiary.</p> <p>(a) Even if there was no such church in actual existence when the deed was executed, but it was only in contemplation, this would not of itself render the trust void.</p> <p>3. The deed containing no reversionary clause upon condition subsequent, no reversion arose under its terms because the congregation became inactive, or there was no organized- congregation at that place, for a number of years.</p> <p>4. Under a deed of the character above set forth, it could not be declared that the trust therein created had failed or become impossible of accomplishment, so as to cause a reversion to the founder or her heirs, although there had been no active or organized congregation known as St. John’s Church for some fourteen or fifteen years before the commencement of litigation.</p> <p>5. In an action by the grantee in such a deed of trust, to recover the land conveyed by it from the executor of the grantor, who had taken possession thereof, it was not competent by parol evidence to substantially add a condition subsequent to the written terms of the instrument, although this was offered as being explanatory of the consideration.</p> <p>6. There was no error in rejecting the testimony of a witness as to what was the motive of the grantor in making the deed. This was objectionable as opinion evidence; and the motive of one party, not shown to have been disclosed to the other, was irrelevant.</p> <p>7. The opinion of the executor that there were already sufficient churches of the Episcopal denomination in the city where the land was located to supply all members of that denomination, and that there was no real or apparent necessity for building a church on the land in controversy, as all the probable members were already members of other churches, and there would be no congregation to support it, would not suffice to show that the trust had terminated and a reversion had taken place; and the rejection of such evidence will not cause a reversal. (a) If there were any slight inaccuracies in any of the numerous rulings of which complaint was made, they were not such as to require a reversal.</p>

<p>Motion for new trial. Before Judge Conyers. Wayne superior court. November 8, 1910.</p>

<p>Probate of will. Before Judge Conyers. Appling superior court. September 20, 1910.</p> <p>In the superior court a suit for the probate of the alleged nuncupative will of John A. Blount was tried on appeal from the court of ordinary. Blount had a brother who was his sole heir at law, but was not on good terms with him. For more than a year prior to his death, L. W. Davis and his wife had lived in Blount’s house and cared for him. Blount desired to bequeath all of his property to L. W. Davis, and was anxious that his will be so prepared as that it could not be set aside. He had inquired whether a written will would be better than a nuncupative will, and had been informed that it would. After such inquiry and information he sent for Beuben H. Holton, a justice of the peace, on the 8th day of April, 1908, to write his will. The messenger was L. W. Davis, and he was requested also to get John Cochran and John 0. Cochran Sr. to come to Blount’s residence .and attest the will with Holton. The first to arrive was Holton, late in the afternoon. There being no suitable paper at hand, Holton so informed Blount, and entered upon a tablet a description of the land and other memoranda, and then told Blount, as he had no suitable paper on which to write the will, he would go home and write, it and bring it back to be signed the next morning. Blount replied, “All right.” Blount was suffering from a protracted illness, but expressed himself as feeling better, and as not believing he would die “from that spell,” but would be “able to attend to his business.” When Holton came, after 'telling him that he wanted him to write his will, Blount also called in Mrs. Davis and told her to sit where she could hear him and listen, as he “worded it” for Holton to write, as she was the only witness present, “but he could get in more.” According to the testimony of Mrs. Davis, Blount made his will “then and there.” Holton was in the act of leaving when the two Cochrans arrived, but they were informed by Holton that the will would be executed the next morning, and were requested to return in order to attest it. Blount conferred with them about the will after Holton left, and told them and others that he intended to bequeath all of his property to L. W. Davis, but his announcements were not of such character as to indicate to them a present intention to make a nuncupative will. On the contrary, they showed that he had reference to a will which Holton was to write for him. About one o’clock during tire same night, Blount died. On the 1st day of September, 1908, Iiolton prepared the nuncupative will and caused the same to be sworn to by more than three subscribing witnesses, which is the same as was afterwards offered for probate. Upon the conclusion of the evidence the judge granted a nonsuit.</p>

<p>1. Under the provisions of section 5 of the act approved November 29, 1902 (Acts 1902, p. 333), the City of Atlanta has authority to exercise the right of eminent domain, and to acquire, by condemnation proceedings, lands necessary for the construction of sewers beyond the limits of the city.</p> <p>2. Upon the trial of the ease the trial judge did not abuse his discretion in refusing to grant the interlocutory injunction.</p>

<p>1. So much of sections 5 and 7 of the act of 1907 (Acts 1907, p. 107) as provides for the auditing of the fees of the ordinary by the proper county officials, and the payment of such fees by the county, is not impliedly repealed by the act approved August 18, 1908 (Acts 1908, p. 70).</p> <p>2. Under article 7, section 6, paragraph 2, of the constitution (Civil Code 1910, §§ 6551, 6562) a county tax can not be levied for the purpose of raising money to pay pensions to Confederate soldiers, and the widows of Confederate soldiers; the tax authorized for this purpose is one to be laid by the General Assembly over the whole State. If the General Assembly require of a designated official that he render the necessary service to the pensioner, respecting the making of the application, collecting and paying over the money, and fix a fee for such service, payable out of the county treasury, the provision as to payment of fee is unconstitutional and void, because the fee partakes of the character of the pension, and can not be constitutionally paid out of taxes levied by the county. The legislative scheme of the act of 1907, requiring payment of the ordinary’s fees from the county .treasury, contemplated the payment of fees for all classes of pensioners; and the legislative intent can not be given effect by enforcing the provision only in favor of indigent pensioners on the ground that a county may constitutionally levy a tax for the care of paupers.</p>

<p>Indictment for murder. Before Judge J. B. Park. Jasper superior court. October 16, 1911.</p>

<p>Action’of slander. Before Judge Gilbert. Chattahoochee superior court. June 1, 1911.</p>

Injunction and receiver. Before Judge Edwards. Polk superior court. December 15, 1910. The Etna Steel and Iron Company, a domestic corporation, on January 1, 1907, executed to the Empire Trust Company of New York, as trustee, a deed of trust to secure an issue of $600,000 of bonds. The bonds were of the denomination of $1,000 each, due at twenty years, with interest payable semi-annually.

<p>Petition for injunction. Before Judge Fite. Bartow superior court. June 24, 1911.</p>

Complaint for land. Before Judge James B. Park. Baldwin superior court. May 6, 1911.

<p>Complaint. Before Judge Worrill. Randolph superior court. August 6, 1910.</p>

<p>Equitable petition. Before Judge Worrill. Terrell superior court. September 17, 1910.</p>

<p>Where one executed to a named grantee a security deed, and subsequently, upon the death of the grantor, his widow became his administratrix, and a year’s support was duly set apart to the widow, embracing all the right, title, and interest of the decedent in the lands conveyed by the security deed, she, remaining in possession, was entitled to the rents and profits growing out of the land, until the institution of an action to recover the land or other appropriate proceedings by the grantee in the security deed to subject the land and mesne profits to the debt due him.</p>

<p>.1. In an equitable action which is the substantial equivalent of a suit to recover land, the premises sought to be recovered must be definitely-described. As against a special demurrer a description is too indefinite which describes the land in controversy as situated in the southeast corner of the western half of a certain lot in a certain land district of a certain county, bought from the defendant and on which he is farming, and adjacent to other lands of the defendant, without giving the area or the dimensions of the lot, or other descriptive words identifying the premises so that the sheriff in the execution of a writ of possession can deliver the possession in accordance with its mandate.</p> <p>2. A -landlord may maintain against his insolvent tenant in possession, who is allowing the land to deteriorate, a suit to recover the land, and to prevent waste pendente lite by the appointment of a receiver to take possession of the land and hold the rents and profits until final decree.</p>

<p>1. A written agreement made by the payee of a promissory note with the maker thereof, evidencing a part of the contract between them, stipuulating that the maker is never to be sued on the note, relieves the maker from all liability upon the note; and a subsequent voluntary promise of the maker to pay the note, made without consideration, to the executor of the payee, is a nudum pactum and not enforceable.</p> <p>2. Where a bill of exceptions is sued out to the overruling of a motion for new trial, only the evidence as contained in the approved brief of the evidence can be brought to this court, and a new and distinct compendium of the evidence can not be legally incorporated in the bill of exceptions. Whether the brief of evidence which was approved and filed as part of the motion for new trial and duly certified to this court was in strict conformity with the rule upon the subject of preparation of briefs of evidence it is unnecessary to decide, as a consideration of the evidence is not necessary for the decision of the point of law ruled in the previous headnote.</p>

<p>Action for damages. Before Judge Conyers. Glynn superior court. October 15, 1910.</p>

<p>1. Where the question was whether a married woman conveyed land to her son so as to furnish him a basis of credit or to enable hr jj. by a conveyance of the land to secure the payment of his debts, or whether the transaction was merely colorable and a scheme, in which the creditor participated, to make her in fact, though not in name, a surety for the debt of her husband, it was error to direct a verdict, where it could not be properly declared that, under the evidence introduced, and all reasonable deductions or inferences therefrom, a particular verdict was demanded.</p> <p>2. Where no motion for a new trial was made, but a -brief of the evidence was approved and made a part of the record, as provided,by Civil Code (1910), § 6141, and the bill of exceptions specified it as a part of the record to be sent to this court; ' and where the original brief of evidence was attached to the bill of exceptions and transmitted therewith, this court, upon having the fact brought to its attention, will order its clerk to send the original record to the clerk of the superior court and direct the latter to certify and transmit a transcript as required by law, and, upon receipt of it in due time, will decline to dismiss the writ of error.</p> <p>3. The brief of evidence was somewhat subject to criticism as to the manner in which it was prepared, but it did not constitute so gross a disregard of the statute as to authorize this court to refuse to consider it.</p>

<p>Action for damages. Before Judge Conyers. Glynn superior court. November 2, 1910.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. October 18, 1910.</p>

<p>Petition for cancellation of deed. Before Judge Eawlings. Washington superior court. September 26, 1910.</p>

<p>Injunction, etc. Before Judge Hammond. Burke superior court. December 21, 1910.</p>

<p>1. Confederate soldiers, referred to in the expression “indigent pensioners,” as used in section 2 of an act approved August 13, 1909 (Acts 1909, p. 173), can not be classed as paupers, in the meaning of that term where it is employed in our statutes relating to the county poor.</p> <p>2. Under the decision in the case of Verdery v. Walton, ante, 213 (73 S. E. 390), the provision in section 2 of the act referred to in the first headnote is unconstitutional, in so far as it provides for the payment of certain fees to the ordinaries of this State out of the pauper funds of their respective counties.</p> <p>3. The court erred in not sustaining the demurrer to the petition for mandamus, the demurrer being based upon the alleged uneonstitutionality of the section of the act referred to.</p>

<p>Intervention. Before Judge Seabrook. Liberty superior court. September 20, 1910.</p>

<p>Habeas corpus; from Crawford.</p>

<p>Ejectment. Before Judge Felton. Bibb superior court. December 19, 1910.</p>

<p>Petition for injunction. Before Judge Edwards. Haralson superior court. January 12, 1911.</p>

<p>Petition for injunction. Before Judge Fite. Whitfield superior court. May 20, 1911.</p>

<p>Petition for specific performance. Before Judge Conyers. Jeff Davis superior court. September 7, 1910.</p>

<p>Action for money had and received. Before Judge Littlejohn. Lee superior court. July 19, 1911.</p>

<p>Affidavit of illegality; from Ben Hill.</p>

<p>Equitable petition. Before Judge Frank Park. Dougherty superior court. March 28, 1911.</p>

<p>Complaint. Before Judge Thomas. Colquitt superior court. April 5, 1911.</p>

<p>Complaint. Before Judge Parker. Charlton superior court. June 21, 1910.</p>

<p>Attachment. Before Judge Conyers. Jeff Davis superior court. December 20, 1910.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. September SO, 1910.</p>

<p>1. If the land intended to be granted appears clearly and satisfactorily from any part of the description in a deed, and other circumstances of description are mentioned which are not applicable to that land, the grant will not be defeated, but those circumstances will be rejected as false or mistaken.</p> <p>2. A deed to a parcel of land in a town described the land conveyed clearly by fixing its corner with reference to the distance from the intersection of two streets, bounding the land on two sides by parallel streets, stating the distance between them and the number of feet which the land fronted on them. There was not in that immediate connection any mention of lot numbers. The deed then, in another paragraph, described other land conveyed, in connection with which, and seemingly as a part of the description of which, was added, “and being lots 66 and 75 of the J. B. Thompson property, as per plat No. 2 exhibited at auction sale thereof by Samuel W. Goode & Co., June 23rd, 1887.” The land first described covered lots numbered 65, 66, 75, and 76. Erom the map contained in the record it did not appear what were the numbers of the second described parcel. The land was conveyed by one who inherited under the grantee to a purchaser, who took possession. A month after making the first deed, the original grantor made a warranty deed to another, describing the land so as to convey one half of that covered by the first description in the other deed, “being lots Nos. 66 and 75” as per the Goode & Co. plat. There was no effort to reform the first deed. The second grantee brought suit against the holder under the first deed, to recover the land described in the second deed, but failed to recover. He then sued the grantor on his warranty. Seld, that he was entitled to recover.</p> <p>3. Parol evidence is admissible to adjust the description in a deed to the land conveyed; but if a deed conveys certain land, in the absence of any effort to have it reformed, its effect can not be controlled by parol evidence that there was a mistake in the description, whereby more land was included than was intended.</p>

<p>1. Assignments of error not referred to in the brief of counsel for the plaintiff in error will be treated as abandoned.</p> <p>2. In a proceeding to evict a tenant holding over, under the Civil Code, § 5385 et seq., it was not error to exclude from evidence the record of a proceeding in court between the same parties, to evict the tenant for failure to pay rent, instituted before the end of the term, where it appeared that the tenant resisted the warrant for eviction and remained in possession until after the term.</p> <p>(a) Nor was it error to exclude evidence as to the release of the tenant from the contract and the substitution of another under an arrangement between the alleged substituted tenant 'and the real estate agents having the property in charge for rent, in the absence of evidence of authority from the tenant on the one hand, and of the landlord on the other, to make such change.</p> <p>3. A tenant under a lease for a specified time is under duty at the ex-pir.ation of his term to surrender possession to his landlord. If he fails to do so on demand, where there has been no laches by the landlord in making the demand, he does not merely by reason of his occupancy become a tenant by sufferance, nor does he become a tenant at will, where the landlord has not in any way recognized his right to continue in possession as a tenant.</p> <p>(a) In a proceeding by a landlord to evict a tenant as one holding over, where the defendant resists the eviction by making a counter-affidavit, denying the relation of landlord and tenant, and the uncontradicted evidence shows that the tenant entered under a contract for a specified time, and at once after the expiration of the term continued in possession over the objection of the landlord, and there .is no evidence tending to show that the tenancy was one by sufferance or one at will, there is no error in directing a verdict in favor of the plaintiff, under the statute, for an amount equal to double the stipulated rent for the time the defendant continued in possession beyond the term.</p> <p>4. The judgment on the main bill of exceptions being affirmed, the cross-bill of exceptions is dismissed.</p>

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

<p>Complaint. Before Judge Ellis. Fulton superior court. September 30, 1910.</p>

<p>. Equitable petition. Before Judge Kawlings. Tattnall superior court. October 6, 1910.</p>

<p>The evidence required a verdict for the defendants, and there was no error in directing it.</p>

<p>Indictment for murder. Before Judge Martin. Laurens superior court. October 6, 1911.</p>

<p>Indictment fóí murder. Before Judge Walker. Warren superior court. November 16, 1911.</p>

Complaint. Before Judge Frank Park. Calhoun superior court. June 5, 1911. ■ Herbert Brown and others, as remaindermen under a certain deed, brought an action- against Mrs. Madden and B. B. Martin, to declare* a forfeiture of the life-estate conveyed by the deed, and to acquire possession of the property because of alleged waste committed.

<p>Petition for injunction. Before Judge Thomas. Berrien superior court. August 26, 1911.</p>

<p>Condemnation. Before Judge Reagan. Butts superior court. December 28, 1910.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. October 11, 1910.</p>

<p>Action for damages. Before Judge Reagan. DeKalb superior court. September 24, 1910.</p>

<p>Action for damages. Before Judge Meadow. Hart superior court. August 27, 1910.</p>

Equitable petition. Before Judge Frank Park. Decatur superior court.

<p>1. Where there Were two grounds of demurrer directed to the same part of the plaintiff’s petition, it affords no good ground of exception to the demurrant if the court struck the objectionable part of the petition on. one of the grounds but refused to strike it on the other ground.</p> <p>2. Where an offer to purchase a given number of bales of cotton to be delivered in the future at a stipulated price is made by one party to another, which contains the statement that the party making the offer will give a bond in an agreed amount guaranteeing his acceptance of the goods purchased, the stipulation in reference to the giving of the bond is to be construed as a condition precedent; and where the party to whom the offer is made accepts the offer generally, without further stipulation and without waiver of any condition contained in the offer, the contract made by the offer and the acceptance thereof does not become binding upon the party to whom the offer is made until a compliance by the offerer with the condition in reference to the giving of a bond.</p>

<p>Foreclosure of mortgage. Before Judge Whipple. Wilcox superior court. October 17, 1910.</p> <p>A petition for the foreclosure of a mortgage on realty was brought against the mortgagor in the name of the Neal Bank, there being upon the back of the mortgage the following indorsements: “Pay to the order of Dreger & Doughty Mgrs. Sept. 3rd, 1904. L. M. Bruce." “Dreger & Doughty Mgrs." L. M. Bruce was the mortgagee. To which petition for foreclosure the defendant filed the following plea: “Defendant denies both the genuineness and legality of the indorsements and transfers set forth in the third paragraph of said petition.” See Bruce v. Neal Bank, 134 Ga. 364 (67 S. E. 819). Upon the last trial of the case the plaintiff offered the following amendment to the declaration x “Now comes the plaintiff in the above-styled case, and, by leave of the court first had and obtained, amends the declaration in said case filed as follows, to wit: The defendant in said case having denied in the pleadings therein the legality of the transfer on said mortgage from L. M. Bruce to Dreger & Doughty Mgrs., and the transfer by Dreger & Doughty, which transfers are on the back of the mortgage as follows: ‘Pay to the order of Dreger & Doughty Mgrs. Sept. 3rd, 1904/ ‘Dreger & Doughty Mgrs/ Therefore the plaintiff aforesaid amends the declaration in said case so as to substitute in said declaration, wherever the name of said plaintiff, the Neal Bank, appears as plaintiff, the name of L. M. Bruce for the use of the Neal Bank, so that the suit shall proceed not in the name of the Neal Bank as plaintiff but in the name of L. M. Bruce suing for the use of the Neal Bank.” And in connection with said amendment the plaintiff offered to indemnify L. M. Bruce against any costs in the ease, in such way as the court might direct. Upon objection of the defendant the court refused to allow the amendment; which ruling was assigned as error.</p>

<p>1. Where it appears that in a suit brought against several defendants the plaintiff in the court below, against whom the verdict was rendered upo.n the trial, sued out a bill of exceptions to the judgment of the court overruling'his«motion for a new trial, and named the defendants in the ease as J. H. (one of the defendants) et al., and did not otherwise designate the defendants, and the bill of exceptions was duly served upon the attorney of record for all of the defendants, the bill of exceptions may be amended by adding the names of all of the defendants.</p> <p>2. Where complaint for land was brought by one who claimed title to the property sued for under a deed from his mother, and it was alleged that the mother had died since the execution of the deed, leaving no property and no administrator, and that the defendants named in the petition, together with the plaintiff, were all of the heirs at law of the decedent, one showing that he was the duly appointed and qualified temporary administrator of the decedent, and that he was in possession of the property sued for, was, upon his intervention duly filed praying that he be made a party defendant, properly allowed to become a party defendant to such suit.</p> <p>3. The demurrer to the plea of res adjudicata in this case should have been sustained, inasmuch as the parties to the record.in the suit relied upon as the basis of the plea of res adjudicata were not the same as those of the present suit, and the issue therein was entirely different.</p>

<p>Petition for injunction. Before Judge Whipple. Ben Hill superior court. April 16, 1911.</p>

<p>Equitable petition. Before Judge Martin. Laurens superior court, November 5, 1910. •</p>

<p>Complaint. Before Judge Bell. Fulton superior court. October 14, 1910.</p>

<p>The petition does not set forth a case entitling the plaintiff to the relief sought, and it should have been dismissed upon general demurrer.</p>

<p>Lien foreclosure. Before Judge Pendleton. Fulton superior court. December 5, 1910.</p>

<p>Eviction. Before Judge Ellis. Eulton superior court. January 10, 1911.</p>

<p>Trover. Before Judge Pendleton. Fulton superior court. December 1, 1910.</p>

Action for damages. Before Judge Meadow. Warren superior court. August 30, 1910. ■ George F. Rives brought suit against the Georgia Railroad & Banking Company, alleging, in brief, as follows: On or about June 16, 1909, he took passage on one of defendant’s passenger-trains, for the purpose of going from Sharon to Crawfordville. In order to do this, it was necessary to change cars at Barnett, an intermediate station on the defendant’s line.

<p>1. 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 occupies 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 manir festly abused. No abuse of discretion appears in this case.</p> <p>2. .Certain grounds of the motion for new trial, in which exception was taken to expressions of the judge made pending the examination of witnesses, and others made while instructing the jury, were not subject to the criticism that they, amounted to the expression of an opinion upon material facts in issue, or that they were otherwise prejudicial to the accused.</p> <p>3. In the trial of a murder case, if at the time of making declarations the condition of the wounded party making them, the nature of his wounds, the length of time after making the declarations before he expired, and all the circumstances make a prima facie case that he was in the article of death and conscious of liis condition when he made the declarations, such declarations are admissible in evidence under proper instructions by the court to the jury, though the person may not have expressed his consciousness of impending dissolution.</p> <p>4. Whether or not statements made about eight or ten minutes after deceased was shot, to the effect that the accused “shot him like a dog and kicked him in the face,” were admissible as a part of the res gestse, the admission of them was not cause for a new trial, in view of other evidence to the same effect which was afterwards introduced, some of which was introduced by the defendant.</p> <p>5. In view of other evidence admitted, it was no cause for a new trial that the judge refused to allow a witness to testify that the prosecutor in the case, who was a witness for the State, had previously said: “He stated to me he wanted to hang him [meaning defendant] as high as a telegraph post.”</p> <p>6. There were numerous exceptions to the charge, but, considered in the light of the evidence and the charge in its entirety, none of them were sufficient to require the grant of a new trial.</p> <p>7. 8. Several grounds of the motion for new trial complained of omissions to charge, and several of the refusals to charge upon request; but in the light of the charge as given and the evidence submitted, none of them were meritorious.</p> <p>9. The alleged newly discovered evidence was not sufficient 'to require the grant of a new trial.</p> <p>10. The evidence was sufficient to support the verdict, and there was no error in refusing to grant a new trial.</p>

<p>1. A contract of carriage of certain cotton received by the A. & N. Ry. Co., at Warwick, Ga., a station on the defendant’s line of railroad, “consigned to O/N [order notify] E. L. Harper, Savannah, Ga., via Cordele compress,” was a through bill of lading and bound the railroad to deliver the cotton at Savannah, Ga., the destination mentioned in the bill of lading,, notwithstanding a stipulation in the bill of lading that “this company shall not be responsible as common carriers of said property beyond its line of road,” it not appearing that the shipper of the cotton had expressly assented to the stipulation.</p> <p>2. The suit in this ease was one ex contractu; and for a breach of the contract the plaintiff was entitled to sue for damages arising therefrom, in the county where the contract was executed.</p> <p>3. As a general, rule no demand is necessary to the commencement of an action founded on a breach of contract. And where a so-called demand for cotton was made by the transferee of an “order notify” bill of lading of a railroad company (which thereby agreed to transport certain cotton from and to named points within the State), before it was indorsed by the one having the legal title thereto, such demand can not be the basis for the ascertainment of the damages for a breach of the contract of carriage.</p> <p>(a) And the direction of a verdict by the trial judge in favor of the plaintiff on the basis of a suit brought by the transferee to recover damages and interest from date of demand for failure to deliver cotton by virtue of the terms of the contract contained in the bill of lading, before its indorsement, is reversible error.</p> <p>4. Parol testimony is not admissible on the trial of a case brought to recover damages growing out of an alleged breach of contract for failure to deliver cotton at the point of destination named in the bill of lading, to prove a custom of stopping cotton short of the point of destination for purposes at variance with the plain, unambiguous terms of the contract of carriage.</p> <p>5. When a common carrier fails to deliver goods according to the terms of the contract, the measure of damages is the value of the goods at the time and place at which it is agreed to deliver them, less the transportation charges.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. June 2, 1911.</p>

<p>1. Where differences arose between parties in relation to the purchase and sale of cottonseed oil, and the differences were submitted for arbitration by the parties thereto, in writing “to the arbitration and decision of the arbitration committee on cottonseed products of the Memphis Merchants Exchange, or a quorum of them,” etc., it is not competent to prove a custom of the exchange which varies the plain written agreement of such submission.</p> <p>2. The verdict is supported by the evidence in this case.</p> <p>3. Where by the terms of a written submission to an arbitration committee, which is composed of five members of a regular standing committee of the Memphis Merchants Exchange, one of the members is absent and fails to act, but another person not a member of the regular standing arbitration committee is substituted by the chairman of the committee to act in the place of the absent member, such appointment being without the consent of one of the parties to the submission, and the substituted arbitrator hears the matter in controversy and signs the award with the other committeemen, it follows, as a matter of law, under the contract of submission, that the award is null and void, and can not be the foundation of a suit predicated thereon.</p>

<p>Complaint. Before Judge Lewis. Jasper superior court. August 16, 1910.</p>

<p>Rule for contempt. Before Judge Worrill. Early superior court. January 17, 1911.</p> <p>In 1904 II. C. Sheffield et al. brought an equitable petition against Ben Taliaferro Jr. et al., for the purpose of quieting title to certain land. Process was prayed against Ben Taliaferro Jr., and his guardian, G. "W. Harrison. The process, which was issued and attached to the petition, required Ben Taliaferro Jr. and G. W. Harrison (not describing him as guardian) to be and appear at court. There was an entry of service by the sheriff on G. W. Harrison, guardian. At the return term of the superior court an order was passed, reciting: “It appearing to the court that Ben Taliaferro Jr. and his guardian, G. W. Harrison, have each been served with copy and process duly and legally,” it was ordered that J. T. Freeman, Esq., be appointed guardian ad litem to represent the interest of the minor in the litigation, and to employ counsel to represent him in matters connected therewith. The person so appointed accepted the trust. On the record there was the following entry: “Due and legal service acknowledged; copy, process, and further notice waived. I request the court to try this ease at April-term, 1904, of Early superior court, so far as H. C. Sheffield is concerned.” This was signed by Ben Taliaferro Jr. and J. T. Freeman, guardian ad litem. An answer was filed in the name of the minor defendant. The jury found in favor of the plaintiffs. The decree recited: “This case having come on to be tried at the present term of the court, and there being present in court plaintiffs personally and by counsel, and the defendant by counsel, and his guardian ad litem, J. T. Freeman, being present, and his guardian, G. W. Harrison, being present, and his father, Ben Taliaferro, being present, and all of them defending this suit,” and decreed that Ben Taliaferro Jr. had no interest or title whatever in the described land as against any of the plaintiffs or persons holding under them; and that he, his guardian, and all persons acting for him, should be enjoined from claiming any of such land, or disparaging the plaintiffs’ title by any claim of title thereto.</p> <p>It appeared that Taliaferro was a minor over fourteen years of age, and approaching the age of twenty-one years. After he reached his majority, he took counsel with certain attorneys; and being advised that the injunction against him was a nullity, he proceeded to bring suit for an undivided interest in certain described land involved in the former suit. Proceedings were taken to attach Taliaferro and his attorneys for contempt in violating the injunction. In response they set up that the decree was void, because the minor had not been served as required by the statute, and because the process did not describe his guardian as such, but mentioned him as an individual. Upon the hearing, the foregoing facts appeared, and certain affidavits were introduced on behalf of the respondent. In these occurred the expression that the minor “having never been served with a copy of the petition in said case or with process attached to such copy by the sheriff, as required by law, the said Taliaferro was not before the court;” but in the bill of exceptions it is stated that “ It was admitted by the respondents, upon the trial of said case,” that the affidavits mentioned “were not offered to prove any fact dehors the record” in the former case.</p> <p>The presiding judge held the defendants to be in contempt, and fined each of them $25, from which they might be relieved upon the dismissal of the suits brought by them in violation of the injunction, referred to in the petition. The respondents excepted.</p>

<p>1. Under the evidence in this case the defendants were not entitled to a judgment against the plaintiffs, upon the demand of the former, for the value of certain mules, and the hire of the same, delivered to the latter in payment of certain promissory notes due at the time of the delivery of the mules.</p> <p>2. The evidence did not authorize the verdict directed by the court, and must for that reason be set aside and a new trial granted.</p> <p>3. No opinion is expressed as to the sufficiency of the evidence to show the insolvency of the plaintiffs, which was relied on by the defendants as a basis of their right to set off certain alleged damages against a liquidated demand of the plaintiffs.</p>

<p>Equitable petition. Before Judge Prank Park. Decatur superior court. November 19, 1910.</p>

<p>Equitable petition. Before Judge Hammond. Bichmond superior court. October 11, 1910.</p>

<p>Equitable petition; from Tattnall superior court.</p>

Equitable petition. Before Judge Meadow. Elbert superior court. September 20, 1910.

<p>Action for damages. Before Judge Meadow. Elbert superior court. . August 20, 1910.</p>

<p>Complaint. Before Judge Brand. Franklin superior court. December 1, 1910.</p> <p>Tire suit was for the price of fertilizer sold and delivered in 1907. The defendant pleaded: that he did not buy the guano from the plaintiffs, but bought it from D. A. Baker, who acted as owner in making the sale, and defendant so believed him to be; that no. other principal was disclosed, and he had no knowledge or information that Baker was acting as agent for the plaintiffs, if so he was; and that the guano was bought with the distinct understanding and agreement with Baker that the price of it was to go in part payment of a note he owed the defendant, of larger amount than said price, which amount was pleaded as a set-off. The defendant testified in support of his plea; and there was testimony for the plaintiffs that all the guano sold and delivered by Baker and his employees in 1907 was the property of the plaintiffs, and Baker acted only as agent for them in selling it, and was not authorized to sell any of it in payment of his debt. The jury found for the defendant. A new trial was denied, and the plaintiffs excepted.</p>

<p>Habeas corpus. Before Judge Brand. Franklin superior court. May 24, 1911.</p>

The Court of Appeals certified to the Supreme Court the following question of law: “On October 30, 1909, a petition was filed in the city court of Moultrie, against a non-resident insurance company, because of a loss which had been occasioned to the plaintiff, who was insured under one of its policies.

<p>Action upon insurance policy/ Before Judge Frank Park. Decatur superior court. November 21, 1910.</p>

<p>Equitable petition. Before Judge Tbomas. Berrien superior court. January 12, 1911.</p>

<p>Complaint for land. Before Judge Conyers. Appling superior court. March 9, 1911.</p>

<p>1. A motion to reinstate a ease will lie, as one remedy, where a non-suit has been awarded for want of sufficient evidence.</p> <p>2. A brief of the evidence must be filed by the movant with the motion to reinstate a case in which a nonsuit has been awarded and the case dismissed for want of sufficient evidence.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. May 9, 1911.</p>

<p>Exceptions to auditor’s report. Before Judge Eeagan. Monroe superior court. October 1, 1910.</p>

<p>Complaint. Before Judge Reagan. Upson superior court. December 23, 1910.</p>

<p>Motion to set aside judgment. Before Judge Worrill. Miller superior court. November 4, 1910.</p>

<p>Ejectment. Before Judge Frank Park. Decatur superior court. January 23, 1911.</p>

<p>1. Upon review, the court declines to overrule the decisions in the eases of Moore v. City of Atlanta, 70 Ga. 611, and Brown v. Atlanta Railway & Power Co., 113 Ga. 462 (39 S. E. 71).</p> <p>2. A city ordinance authorizing a street-railway company to construct and lay such double tracks in the streets where it already has single tracks, as it may from time to time deem proper for the purpose of rendering efficient service, sufficiently designates the streets in which the company may lay the double tracks. And the fact that the time at which such double tracks may be laid is thus left to the discretion of the company, to be exercised by it for the purpose of “rendering efficient service,” does not divest the city of the legislative power involved in the grant of a franchise to the street-railway company, nor does it confer upon the company itself the right to exercise an authority involving the elements of governmental or legislative power.</p> <p>2. An ordinance providing that a single track may be laid in any given street is not in any sense repealed by a subsequent ordinance authorizing a street-railway company to lay double tracks in all streets where single tracks have been laid.</p> <p>4. Under the evidence and the pleadings the court did not err in refusing the interlocutory injunction. .</p>

<p>Complaint for land. Before Judge Pendleton. DeKalb superior court. December 21, 1910.</p>

<p>1. The admission of irrelevant evidence which is not hurtful to the complaining party affords no cause for a new trial.</p> <p>2. Where a defendant executor, in an action of complaint for land, set up that the plaintiff’s wife, under direction of the plaintiff, had written a letter authorizing the sale of the land, and that the testatrix iof the defendant had purchased it thereunder and paid the purchase-price in full; and where the wife of the plaintiff, while testifying as a witness, denied that the letter was written by her, other letters which she admitted having written were not admissible in evidence for the purpose of comparison without proof of the genuineness of the first, over objection, where such letters had not been submitted to the adverse party before he announced ready for trial.</p> <p>3. This court will not reverse the judgment of the court below refusing a new trial, on the ground that certain conversations alleged to have been material in their bearing upon the issues of fact in the case were excluded from the evidence, when the conversations which the court refused to allow the movant to prove are not set forth literally or in substance in the motion.</p> <p>4. There was sufficient evidence to support the verdict.</p>

<p>Claim.. Before Judge Eimsey. White superior court. December 7; 1910.</p>

Equitable petition. Before Judge Eite. Gordon superior court. March 7, 1910. Mrs. Willie J. Lawshe brought her suit in the superior court of Gordon county against the Southern Title Guarantee Company, a corporation having its principal office and place of business in Eloyd county, with an agent in Gordon county, and against E. H. and C. E. Davis of Eloyd county.

<p>Complaint. Before Judge Fite. Gordon superior court. November 15, 1910.</p>

<p>Petition for injunction. Before Judge ITcmU. Early superior court. October 11, 1911.</p>

The Court of Appeals certified to the Supreme Court the following questions: 1. “Is the act approved August 15, 1910 (Acts 1910, p. SOI), entitled 'An act to… Held: who shall hold it, and to whom the returns of the election shall be made, and whose duty it shall be to declare the result of said election/ or because no returns of said election were made to the ordinary of Baker county,.or because the ordinary of Baker county has not declared the result of said election?”

<p>Attachment and claim. Before Judge Eawlings. Johnson superior court. November 30, 1910.</p>

<p>Complaint for land. Before Judge Ellis. Eulton superior court. October 21, 1910.</p>

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

<p>Rule. Before Judge Bell. Fulton superior court. November 2, 1910.</p>

Action for penalty. Before Judge Rawlings. Jefferson superior court. January 21, 1911. The action is by the State of Georgia against the Wadley Southern Railway Company, to recover a penalty for disobedience to an order of the Railroad Commission of Georgia. The Central of Georgia Railway Company, a domestic corporation, owns and operates a line of railroad from Ma.eon to Wadley and beyond.

<p>Action for accounting, etc. Before Judge Hammond. Burke superior court. January 1, 1911.</p>

<p>1. The writ of error in this case, having been prematurely brought, is dismissed.</p> <p>2. The writ of error having been dismissed as prematurely brought, the cross-bill of exceptions must likewise be dismissed.</p> <p>3. Under the special facts of this case, leave is granted to file the certified copies of the main and cross-bills of exceptions in the office of the clerk of the superior court, as exceptions pendente lite.'</p>

<p>Application for dower. Before Judge Morris. Forsytb superior court. September 2, 1910.</p>

<p>Affidavit of illegality. Before Judge Edwards. Douglas superior court. September 21, 1909.</p>

<p>Petition, to establish copy of lost record. Before Judge Edwards. Douglas superior court. November 20, 1908.</p>

<p>Indictment for murder. Before Judge Brand. Clarke superior court. November 11, 1911.</p>

<p>Indictment for murder. Before Judge Brand. Walton superior court. November 20, 1911.</p>

<p>1. Where by the terms of an agreement, upon a valuable consideration, one party to the agreement stipulates that he “will not again engage in the manufacture and sale of regalia, alone or in conjunction with others, within five years of the date of this agreement, under penalty of five thousand dollars liquidated damages, to be paid to the party of the second part if this agreement is violated,” without any limitation ás to space or territory, this stipulation can not be enforced in a suit brought to recover the sum named as liquidated damages. The agreement is in general restraint of trade, and void.</p> <p>2. One paragraph of a contract stipulated that the party of the first part “will not again engage in the manufacture and sale of regalia, alone or in conjunction with others, within five years of the date of this agreement, under penalty of five thousand dollars liquidated damages, to be paid to the party of the second part if this agreement is violated.” Held, that the forfeiture named applies only to this paragraph of the agreement, and not to any other paragraph of the agreement. (Hill, J., dissenting as to this headnote.)</p> <p>.3. Where a contract contains several stipulations, and the sum named in the contract as “liquidated damages” for a breach of the agreement can apply to the breach of any stipulation of the contract, and it is apparent that the damages which could result from the breach of some of the stipulations would be so small in comparison with the sum named as liquidated damages as to make the latter excessive and unjust, the amount of damages stipulated will be held to be in the nature of a penalty and not “liquidated damages.”</p>

<p>Petition for injunction. Before Judge J. B. Park. Jasper superior court. April 15, 1911.</p>

<p>Intervention. Before Judge Seabrook. Ware superior court. December 12, 1910.</p>

<p>Illegality of execution. Before' Judge Boan. DeKalb superior-court. September 16, 1910.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. August 6, 1910.</p>

Complaint. Before Judge Meadow. Hart superior court. December 20, 1910. W. S. Morgan brought an action against Mattie C. Cobb on four promissory notes aggregating $346 principal. The defendant, in her answer, admitted that she had executed and delivered the notes to the plaintiff, and that he was the owner of the same and had the right to sue thereon.

<p>Betition for mandamus. Before Judge Sheppard. Liberty superior court. June 17, 1911.</p>

<p>Action for damages. Before Judge Morris. Forsyth superior court. January 2, 1911.</p>

<p>Action for damages. Before Judge Morris. Cberokee superior court. October 4, 1910.</p>

<p>Petition for injunction. Before Judge Martin. Laurens superior court. July 27, 1911.</p>

<p>1. A court of equity will not enjoin the enforcement of an execution issued by a court of competent jurisdiction, where it appears that the parties to the suit have had their day in court and the defendant in •execution offered no evidence on the trial of the case, and it does not appear that he was prevented from so doing by fraud or accident, or the act of the other party, unmixed with negligence or fraud on his part.</p> <p>(а) The judgment of the court, in such a ease, adjudicated that all the elements necessary to a valid judgment were had at the trial, and that all the issues made between the parties were adjudicated.</p> <p>(б) Where a suit was JOed by the trustee of a bankrupt, as such, to recover on a debt due by the defendant to the bankrupt, and pending the suit in court the trustee was discharged by the bankrupt court, but defendant offered no evidence on the trial and judgment was taken in favor of the trustee against the defendant by default: Held, that the plaintiff and defendant are concluded by the judgment, which adjudicated the rights of the parties as shown by the pleadings, among which are that the trustee, as alleged, is trustee; and it is too late, after judgment, to ask a court of equity to open the judgment and let in defenses which could have been made before judgment.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. October 19, 1910.</p> <p>E. L. Bogers, T. A. Maynard, and A. A. Camp, suing for themselves and others similarly situated, brought their petition against the Great Southern Accident and Fidelity Company, B. H. Cantrell, W. G. Chipley, J. B. Duval, Ed. S. Moore, and H. H. Bass, alleging as follows: In the early part of 1909 Cantrell and Chipley conceived the scheme of promoting and subsequently organizing the Great Southern Accident and Fidelity Company, ostensibly to engage in the business of casualty and fidelity insurance, but really for the purpose of defrauding such of the public as could be induced to subscribe for the stock of the proposed corporation. About March 1, 1909, Cantrell, Chipley, and their associates, including Duval, procured from the secretary of State of Georgia a certificate of incorporation for the insurance company, authorizing it to do an insurance business, and providing that the capital stock of the company should be $500,000, divided into shares of $100 each. Petitioners are informed and believe that Cantrell and Chipley through a fraudulent arrangement with the other incorporators of the company took entire charge of promoting the organization of the company, by inducing subscriptions to the capital stock, collecting the subscriptions, and appropriating to themselves an enormous part of the collections; and after their efforts in this direction were exhausted and they had looted the fund collected as far as possible, having a fictitious organization of the company, they abandoned the company. It was never the intention of Cantrell and Chipley to raise the entire capital of the company, nor to legitimately organize the company and prosecute the business for the conduct of which the company was incorporated; but their purpose was to realize for themselves an enormous sum of money by persuading people to invest in the stock of the proposed corporation, by falsely representing that men of large experience and national reputation as insurance men were to be identified with the company and have control of its affairs, that the company would begin business with a capital stock of $500,000 and a surplus of equal amount, that the stock would ultimately have an actual value of 2 for 1, that the field of operation was broad and ample, and that the profits of the company would be enormous from the beginning and the value of the stock would rapidly enhance. By false representations of this character, Cantrell and Chipley contemplated collecting a very large sum of money, deducting therefrom 45 per cent, or other large percentage for themselves, paying such moneys as might be left to the provisional officers of the company, and leaving the company to its fate in the hands of incompetent and irresponsible men. Upon procuring a certificate of incorporation from the secretary of State, Cantrell and Chipley proceeded to canvass, by themselves and other men employed by them, for the sale of the stock of the proposed company. In every instance they made false statements to induce subscriptions to the stock; painting the situation in such glowing terms that within the space of a few months they procured many subscriptions, selling each share for two hundred dollars, although their par value was only one hundred dollars; and representing that one hundred dollars for each share was to go to the capital account of the company and one hundred dollars to the surplus account. In this way they collected $325,000, representing $162,500 capital stock of the company. In nearly every instance a note was taken for the amount of the subscription, payable twelve months after date, to the subscriber’s order, which note was placed at the subscriber’s home bank, who was given a bonus of from 10 to 12 per cent. It was represented that the fund realized in any particular town would be left at the home bank, according to the plan adopted. In each case the bank, upon taking the note, issued its deposit slip in favor of the Great Southern Accident and Fidelity Company, showing the amount of the credit in the bank. The deposit slip was then sold at a considerable discount. Out of the cash realized in this way Cantrell and Chipley appropriated to themselves 45 per cent, or other large percentage. Petitioners were officers of the Winder Cotton Mills, and they subscribed to the stock of the proposed corporation under the persuasion of one Jackson, agent and representative of Cantrell and Chipley. Among the other false and fraudulent representations made to them in order to induce their subscription, it was promised to them by Jackson that the insurance company would immediately lend to the Winder Cotton Mills the sum of $35,000 at 6 per cent, interest, taking bonds of the mills as security. The mills were in need of a considerable sum; and had it not been for the representation of Cantrell and Chipley, through their agent Jackson, that the insurance company would make the loan, petitioners never would have subscribed for the stock. This promise was a large inducement, and was falsely made and it was never intended that the same should be carried out or performed; and in fact the insurance company refused to make such loan. Bach of petitioners subscribed for five shares of the capital stock, executing a twelve-months note for $1,000, payable to his own order, indorsing the same, and the notes were deposited in the Winder Banking Company, the bank receiving a bonus and issuing its time-deposit slips upon tire plan above referred to. Each of the petitioners was issued his certificate of stock for five shares, par value $100; the additional $500 was to go to surplus account of the company. Afterwards, in the fall of 1909, as petitioners are advised and believe, a fictitious organization of the company was had in the office of the company in Atlanta, Georgia. The required capital stock of the company had not been subscribed, and those who had. subscribed were not notified of the proposed meeting. The entire capital stock of the company was voted by Cantrell and Chipley and by J. H. Dean, who was previously represented to be president of the company, although the company had never been duly organized so far as petitioners are informed, and who was in fact a mere figurehead, without real interest in the company. At this meeting Dean was deposed as president and Cantrell elected in his stead. Thereafter there was an attempt to organize the company, although the required capital stock had never been subscribed. At the stockholders’ meeting at which this organization was attempted, IT. H. Bass was elected president, and J. E. Duval secretary, as petitioners are informed. The company obtained a license to do business in February, 1910. It has practically done no business; it was really never contemplated by Cantrell and Chipley and their associates that the company would ever be organized in good faith, or in good faith engage in business.' Since obtaining the license to do business above referred to, the company has been paying out large salaries to its various officers, as to the amounts of which the plaintiffs are not advised. They are informed that Ed. S. Moore, as manager of the company, is drawing an annual salary of $10,000, and that Eenfroe Jackson, as special agent, is paid $250 per month and all expenses. There are a number of other salaries paid, as petitioners are informed, all of which are out of proportion to the amount of business done by the company. The company is doing very little business, the expenses are heavy, and such assets as the company has are being rapidly impaired and wasted, and they will soon be exhausted and the company entirely wrecked, unless the assets of the company are seized by the court, conserved, and administered for the benefit of those entitled. Neither Cantrell nor Chipley is now interested in the company; none of the officers of the company are experienced and competent men to conduct the business of such a company; not only are its assets being wasted as before indicated, but the company is carrying on business without being properly and legally organized; and Bass, Moore, and Duval are unauthorized to conduct the affairs of the company or receive or pay out the funds thereof. As an instance of the reckless manner in which the company is being managed, it is alleged that the defendants settled with a subscriber who claimed that he had been defrauded, by refunding his money, and paying a large sum, amounting to about $1,000, as fees to the attorneys in the case brought by him. They also refunded to another subscriber his money paid on stock subscription. Petitioners are informed that a large percentage of those induced to subscribe are claiming that their subscriptions were given under false and fraudulent representations, and a number of the subscribers have brought ordinary suits against the company for the money paid by them to Cantrell and Chipley for the company. “Under the circumstances aforesaid, petitioners are not indeed stockholders of said company, and they here and now repudiate as void their subscriptions to the stock of said company, being induced as aforesaid by false and fraudulent representations and promises. Most of the other persons who were induced to subscribe to the stock of said company are claiming that their stock subscriptions are likewise void, and that they are creditors of the company, and not stockholders; and upon information and belief petitioners aver that such is the fact, and that said company is therefore insolvent, its assets having been so largely looted, wasted, and dissipated as to leave the company without sufficient money to redeem such fraudulently induced subscriptions.” Petitioners are informed that a large number of the notes given by subscribers to the stock for payment of their Subscriptions have been and will be repudiated and that the subscribers will not pay the same, claiming them to be void because procured by fraud, all of which notes must be paid to the banks holding them by the company. Petitioners are informed that Cantrell and Chipley have, now considerable property, purchased with the money illegally and fraudulently taken by them from subscribers to the stock of the company; but petitioners are not able to locate and describe these properties. They pray, that the defendants be enjoined from disposing of any of the assets or funds in their hands, belonging to the company or purchased with money put into the company by petitioners or others in like position, or in any way disturbing or changing the present status of the assets or the affairs of the corporation, or attempting to prosecute the business in the corporation’s name; that Cantrell and Chipley be especially restrained from disposing of any of their properties in which they have invested the money illegally procured by them of petitioners and others in like situation, on subscriptions to the stock of the company; that a receiver be appointed to take charge of all the property of the various defendants; that Cantrell and Chipley be required to account to the receiver for all moneys illegally received by them from subscriptions of petitioners and others in like position, and that judgment be rendered in favor of the receiver against Cantrell and Chipley for the -sum of money found to be due by them by such accounting.</p> <p>The defendants filed their several demurrers, both general arid special, upon numerous grounds, asserting, inter alia, that no cause of action is set -out against any of the defendants; that the allegations with reference to the fraud of Cantrell and Chipley in no wise affected the corporation; that no specific acts of fraud were charged; that the plaintiffs, having paid no money for the stock, and having repudiated the notes given therefor, were neither creditors nor stockholders and had no interest whatever in the company; that there was a misjoinder of parties; and that the plaintiffs, if they were stockholders, were estopped from attacking the validity of the organization of the company, as it had complied with the laws with reference to the organization of insurance companies, and had been recognized by the State and given a license to do business as an insurance company. The petition was dismissed on general demurrer, and the plaintiffs excepted.</p>

<p>Ejectment. Before Judge Worrill. ' Quitman superior court. December 15, 1910.</p>

<p>1. Where the record of a former suit between the same parties, embracing the petition and the plea filed therein, shows that the same matters of defense were then' pleaded by the defendant as were pleaded in the present case, and that while the two notes sued upon in the present case were not included in the petition in the former suit, the fight of the plaintiff to recover upon them was put in issue by plea of settlement between the defendant and the plaintiff, in which settlement were embraced both the two notes sued upon in the first suit as well as the two sued upon in the present case, such record was properly admitted in evidence.</p> <p>(a) It was competent for the plaintiff to introduce the record of the former suit, to meet a defense based upon the alleged settlement which had been set up to prevent a recovery in the first suit.</p> <p>2. The ruling that the transcript of the record of the former suit was properly admitted controls the ease in favor of the plaintiff, irrespective of other questions raised in the record.</p>

<p>Action for breach of contract. Before Judge Felton. Bibb superior court. December 13, 1910.</p>

<p>Action for damages. Before Judge Brand. Franklin superior court. December 1, 1910.</p>

<p>Action for damages. Before Judge Brand. Clarke superior court. January 14, 1911.</p>

<p>Complaint. Before Judge Kimsey. White superior court. December 22, 1910.</p>

<p>Action for damages. Before Judge Kimsey. Habersham superior court. December 26, 1910.</p>

<p>Action for damages. Before Judge Morris. Cherokee superior court. October 3, 1910.</p>

<p>Action for damages. Before Judge Morris. Cherokee superior court. October 4, 1910.</p>

<p>Action for damages. Before Judge Morris. Cobb superior court. November 26, 1910.</p> <p>Mrs. M. L. Barrett instituted suit against the Louisville & Nashville Bailroad Company and Walter Sparrow, an engineer in charge of one of the defendant’s trains, for damages on account of the homicide of her husband. Among other things the petition, as amended, alleged the following in substance: Kennesaw avenue, a public street in Marietta, a city of eight thousand inhabitants, was crossed by the railroad of the defendant railroad company, and also by that of the Western & Atlantic Bailroad Company, there being three lines of railroad tracks. A great many persons and vehicles constantly passed over the crossing by means of the street, while a great many trains constantly and continuously passed over the crossing by means of the railroad tracks. As a consequence, it was a place of danger, and the plaintiffs husband-was employed by the Western & Atlantic Bailroad Company as a watchman 'at that place. While in the discharge of duty, at about 7:30 o’clock, a. m., on the 24th day of October, 1908, he saw two persons approaching the crossing rapidly and about to be caught by a freight-train of the defendant railroad company which was approaching the crossing from the south at a rapid rate of speed. He immediately turned, waving his flag violently as a warning to the persons to stop, and just succeeded in stopping them from passing over the crossing and coming in collision with the approaching freight-train. While thus engaged, and looking in the direction of the persons he was endeavoring to stop, the passenger-train of the defendant approaching from the north (being the opposite direction), at a rate of forty miles per hour, without any warning by ringing bells or otherwise, struck and killed him instantly. The passenger-train was about five minutes ahead of its schedule time. Plaintiff’s husband did not know of its approach, and could have been seen by those in charge of the train for a distance of three hundred yards before reaching the crossing. Sparrow, the engineer, was not on the lookout. The court dismissed the petition on general demurrer, and plaintiff excepted.</p>

Action for damages. Before Judge Fite. Murray superior court. August 8, 1910. Bamsay and others brought suit against the Louisville & Nashville Bailroad Company to recover damages alleged to have resulted by reason of the construction of a bridge across a stream, causing-water to be backed on a part of the land, and also causing soil to be washed away from a part of it. A demurrer was overruled.

<p>Claim. Before Judge Fite. Gordon superior court. October 29, 1910.</p>

<p>Complaint for land. Before Judge Fite. Whitfield superior court. January 4, 1911.</p>

<p>1. In September, 1906, a fire-insurance company, which assessed its members to pay losses, issued a policy which contained a clause providing that the liability of the company should cease if the insured should neglect to pay any assessment within thirty days after the agent’s notices had been issued. The policy declared that the company and the insured should be bound by the by-laws, but no by-laws were set out or attached, as provided by the act of August 17, 1906 (Civil Code (1910), § 2471). Held, that, on the trial of a suit on the policy, it was error to admit in evidence a clause of the by-laws for the purpose of showing the provision as to the manner of issuing notices of assessments.</p> <p>2. Where a policy of insurance contains a clause which works a forfeiture on failure to pay assessments made to meet losses, within thirty days after notice, unless there is something to show a contrary intent it will be construed to require actual notice; and the mailing of a notice which is never received will not work that result.</p> <p>3. A provision that such forfeiture shall result from a failure to pay any assessment within thirty days “after the agent’s notices have been issued,” in the absence of anything further, will not be construed to work a forfeiture for failure to pay an assessment of which notice was mailed but never received.</p> <p>4. There was evidence tending to show these facts: A policy was issued to D. Puryear, and the insured later received by mail a postal card addressed to “ C. Y. Per,” containing a notice of an assessment of a stated amount; but not believing it to be intended for him, and at the instance of the company’s agent, he returned it to the company by mail, with the request that, if it was for him, they should correct it, and the statement that he was ready to pay his assessment. He heard nothing from the company, though its agent promised to call and correct the matter. Held, that in a suit on the policy it was error to direct a verdict for the defendant, although the company’s secretary testified that he mailed a correct notice, after receipt of the plaintiff’s letter.</p>

<p>1. Where a case was dismissed upon general demurrer, and it appears that the declaration, while so defective as to be open to attack by general demurrer, could have been amended by averments of negligence showing a complete cause of action, the judgment of dismissal may be pleaded in bar of a subsequent suit brought for the same cause of action, although the latter states the cause more completely by adding averments of negligence which were wanting in the first suit.</p> <p>2. The court did not err in construing an order dismissing the first suit, which recited that such former suit was dismissed “on general motion,” as being a judgment sustaining a general demurrer to the declaration in the case dismissed.</p>

<p>Assuippsit. Before Judge Mitcbell (on demurrer), and Judge Merrill (on trial). Colquitt superior court. December 17, 1910.</p>

Equitable petition. Before Judge Thomas. Echols superior court. June 30, 1911. R. J. and B. E. Camp brought their suit in Echols superior court against the A. G. Garbutt Lumber Company, to restrain it from cutting and removing the timber from land lot No. 90 in the 16th district of Echols county, Ga., and for the recovery of damages.

<p>Equitable petition. Before Judge Conyers. Appling superior court. March 9, 1911.</p>

<p>Petition for mandamus. Before Judge James B. Park. Wilkinson superior court. May 9, 1911.</p>

<p>Mortgage foreclosure. Before Judge Meadow. Oglethorpe superior court. September 16, 1910.</p> <p>Broach bought of Baudall, the plaintiff’s salesman in charge of its Atlanta office and storeroom, a twelve-horse-power compounded portable engine, at the price of $850, paying in cash $200 and freight charges of $55.40, and giving his notes for $650, with a mortgage on the engine. He signed also a written order or contract of sale, which Bandall signed as salesman. Upon refusal to pay the notes, foreclosure of the mortgage was commenced; and Broach interposed an affidavit of illegality. The plaintiff moved to dismiss this affidavit as insufficient in law to arrest the foreclosure, because it undertook to vary the written contract of sale by setting up a parol agreement and representations made at the time of its execution, and a warranty different from the one therein contained. The motion was overruled, and, after verdict for the defendant, a new trial was denied. The plaintiff excepted to these rulings.</p> <p>The written order for the engine contained the following stipulations: “No person has any authority to waive or alter or enlarge this contract, or to make any new or substituted or different contract, representation, or warranty. Salesmen, mechanics, and experts are not authorized to bind the company by any contract or statement. Said machinery is purchased upon and subject to the following mutual and independent conditions, and none other, namely: It is warranted to be made of good material, and durable, with good care, to do as good work under the same conditions as any made in the United States, of equal size and rated capacity, if properly operated by competent persons with sufficient steam or horse-power, and the printed rules and directions of the manufacturers intelligently followed. If by so doing, after trial of ten days by the purchasers, said machinery shall fail to fill the warranty, written notice thereof shall at once be given to J. I. Case Threshing Machine Company at Racine, Wisconsin, and also to the agent through whom received, stating in what parts and wherein it fails to fulfill the warranty, and reasonable time shall be given to said company to send a competent person to remedy the difficulty, the purchaser rendering necessary and friendly assistance, said company reserving right to replace any defective part or parts; and if the machinery can not be made to fill the warranty, the part that fails to be returned by purchaser free of charge to the place where received, and the company notified thereof, and at the company’s option another substituted therefor that shall fill the warranty, or the notes and money for such part immediately returned and the contract rescinded to that extent, and no further claim made on the company. Failure so to bind [ ?] such trial or to give such notices in any respect shall be conclusive evidence of due fulfillment of warranty on the part of said company and that the said machinery is satisfactory to the purchasers, and the company shall be released from all liability under the warranty. Any assistance rendered by the company, its agents or servants, in operating said machinery or in remedying any actual or alleged defects, either before or after ten days trial, shall in nowise be deemed any waiver, or excuse for any failure of the purchaser to fully keep and perform the conditions of this warranty. When at request of purchaser a man is sent to operate the said machinery, which is found to be carelessly or improperly handled, said company putting same in working order again, the expense incurred to J. I. Case Threshing Machine Company shall be paid by the purchaser. If any part of the machinery, excepting belting, which is not warranted, fails, from defect of material, while this warranty is in force, the company has the right to repair or replace the same, on presentation of the defective part or parts; but deficiency in any piece shall not condemn other parts, and purchaser shall expressly waive all claims for damages on account of the non-fulfillment of said warranty by any of the above-described machinery. Each machine and attachment is ordered at a separate fixed price, which price, unless otherwise specifically agreed, bears the same ratio to the aggregate price above specified as the company’s 1906 list price of each said machine and attachment bears to the aggregate list price of all said machines and attachments. This order is divisible as to each machine and attachment ordered, and the failure of any separate machine or attachment to give the warranty shall not affect the rights of the parties with respect to any other machinery sold the purchasers or any warranty of such other machinery, and no cause of action arising out of this contract or transaction shall be offset or counterclaimed against any liability of the purchaser arising out of any other contract or transaction. In no event shall the company be liable otherwise than by return of cash and notes actually received by it. Failure to fully settle on delivery as above provided, or to comply with any of the conditions of this warranty on purchaser’s part, or any change in the printed terms of its warranty or the conditions thereof by any persons whomsoever, agent or otherwise, by addition, erasure, or waiver, or any abuse, misuse, unnecessary exposure of machinery, or waste committed or suffered by the purchasers, discharges the company from all liabilities whatever. No representation made by any person as an inducement to give and execute this order shall bind the company. The purchaser hereby waives notice of the acceptance of this order by the company.”</p> <p>The affidavit of illegality was in substance as follows: When Broach went to buy, he asked Bandall to show and price to him a fifteen-horse-power engine and boiler, stating that he wanted it to run his sawmill with a forty-eight-inch saw. Bandall said he had in stock no fifteen-horse-power simple engine, but had and would sell Broach a twelve-liorse-power compounded and portable engine that would do the work of a fifteen-horse-power simple engine with less fuel and water, and would operate his sawmill with ease and efficiency, and would develop at least as much horse-power as any fifteen-horse-power simple engine; and urged Broach to purchase the same. Broach then stated to Bandall that he (Broach) was a farmer, not a machinist, and knew nothing of the construction and principles of the different kinds of engines, or of a compounded engine and whether it was or could be made as efficient as a simple engine of nominally greater horse-power rating; and Bandall wilfully and knowingly made to him the statements and representations just set forth, for the purpose of inducing him to buy the engine for which he contracted. Immediately upon receipt of it he undertook to operate his sawmill with it; and it failed completely to develop sufficient power to run the saw, although he used all the skill at his command, guided by such instructions as were furnished by the plaintiff. When he had exhausted his own ingenuity and availed himself of all the assistance and suggestions of the plaintiff, he immediately reported these failures to the plaintiff, which responded by sending its agents and mechanics with instructions so to alter, repair, and reconstruct the engine as to make it do the work of driving the sawmill; all of which efforts failed to increase or improve the power of the engine to the stipulated requirements. Convinced from his own efforts, and those of the plaintiff, that the engine could not be made to perform the services contracted for, and that consequently the engine was worthless to him, he tendered it to the plaintiff, offered to rescind the contract of purchase, and demanded that the plaintiff refund to him the cash payment and cancel the notes, which the plaintiff refused. Wherefore he prays that the contract be adjudged fraudulent and void, and for judgment against the plaintiff.</p>

<p>Action for damages. Before Judge Rite. Murray superior court. August 9, 1910.</p>

<p>Action for damages. Before Judge Rite. Gordon superior court. September 5, 1910.</p>

Complaint. Before Judge Maddox. Floyd superior court. December 28, 1910. TV. P. Simpson and the Pittsburg Fruit & Produce Company entered into the following written agreement: “This agreement made and entered into this the 14th day of July, 1906, between TV.

Equitable petition, etc. Before Judge Worrill. Early superior court. December 21, 1910. C. W. Bridges filed an equitable petition against the law firm of Calhoun & Rambo, its individual members, and Me. L. Parr and L. W. Parr, which contained, in substance, the following allega- y tions: Prior to November, 1908, a partnership existed between' George W. Sheppard and Me. L. Parr, under the firm name of Sheppard & Parr.

<p>Action for damages. Before Judge Rawlings. Tattnall superior court. October 5, 1910.</p>

<p>Complaint. Before Judge Fite. Gordon superior court. October 29, 1910.</p>

<p>Complaint. Before Judge Fite. Whitfield superior court. December 6, 1910. '</p>

<p>Equitable petition. Before Judge Fite. Whitfield superior court. December 6, 1910.</p>

<p>Action for damages. Before Judge Maddox. Floyd superior court. October 19, 1910.</p>

<p>Action for breach of contract. Before Judge Maddox. Chattooga superior court. October 19, 1910.</p>

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

<p>Complaint for land. Before Judge Maddox. Floyd superior court. December 26, 1910.</p>

Complaint. Before Judge Merrill. Tift superior court. December 6, 1910. Hurst & Company brought suit against Briggs Carson for $2,000' and interest thereon, for goods sold and delivered to Keith Carson in pursuance of the following instrument: “Tifton, Ga., March 4, 1907. To Mess.

Complaint. Before Judge Bell. Fulton superior court. August 26, 1910. J. J. Goodrum Tobacco Company brought an action against Potts-Thompson Liquor Company, both parties being corporations. Pending the suit the corporate name of the plaintiff was changed to Capital City Tobacco Company.

Action'for breach of contract. Before Judge Pendleton. Eulton superior court. December 6, 1910. The petition of James L. Logan, E. G. Black, and E. Rivers against M. L. Thrower set forth the following facts: M. Haralson Sr. secured a written option to purchase from J. Aldredge, the owner, a piece of real estate on Peters street, in the city of Atlanta, for the price of $50,000.

Equitable petition. Before Judge Pendleton. Fulton superior court. December 9, 1910. In his petition to vacate a deed of relinquishment of his interest under the will of his father, and an acquittance receipt to the executors of the will, the plaintiff, Sanford G. Collier, alleged as follows : He is the youngest child of his father, reared on his father’s farm near the city of Atlanta, reaching his majority with practically no education.

Complaint for land. Before Judge Meadow. Madison superior court. November 2, 1910. Alexander Graham instituted complaint for land against Mary A. Graham. The defendant admitted possession, but denied the plaintiff’s title.

<p>Action for damages. Before Judge Fite. Whitfield superior court. January 21, 1911.</p>

Interpleader. Before Judge Charlton. Chatham superior court. February 3, 1911. Miss Mary Tupper executed her will in September, 1905. She was then in possession of a certain improved lot in the city of Savannah. She owned in her own right an undivided half interest in the lot and improvements, and held the other undivided half interest as executrix under the will of her sister, Cornelia T. Lang, the mother of Mary T. Lang.

<p>Application for year’s support. Before Judge Conyers. Camden superior court. April 4, 1911.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. September 17, 1910.</p>

<p>1. Where a corporation, whose correct name is the National Building Association of Baltimore City, and its trustees pray for a judgment in the name of the trustees of the corporation against a debtor of the association, and a verdict and judgment are rendered in favor of “the trustees for the said National Building and Loan Association of Baltimore,” and subsequently the defendant in the judgment files a petition to set aside the judgment on various grounds, but fails to make the objection that there is a variance between the corporate name as stated in the pleadings and as stated in the verdict and judgment, and such petition is dismissed on general demurrer, the defendant is thereafter estopped from making the objection of variance.</p> <p>2. A misrecital of the name of the plaintiff in execution, in a sheriff’s deed, ■ does not destroy the validity of the deed, if the judgment and execution are so described therein that they may be fully identified.</p> <p>3. A deed purporting to be the deed of the National Building Association of Baltimore City, executed in its behalf by M. McDonald Pritchard and W. R. Dimmoek as trustees, and reciting that the corporation has recovered judgment against the grantee on a stated day and for a certain sum, and that the deed is executed for the purpose of having the execution levied upon the property and having it sold thereunder pursuant to. Civil Code of 1895, § 2771, bearing the caption, “Georgia, Pulton county,” and signed by “M. McDonald Pritchard, trustee, and W. R. Dimmoek, trustee,” and attested as follows: “Signed, sealed, and delivered in presence of: Robert Ogle, Clerk Superior Court of Baltimore City, the same being a court of record [seal of court]; Peter Stevens. As to Dimmoek: J. R. Eox; J. H. Porter, N. P. Pulton Co., Ga.,” prima facie imports thai, it was executed by Pritchard in Baltimore City and by Dimmoek in Pulton county, Georgia, and within the jurisdiction of the attesting officials, and it was properly admitted to record.</p>

<p>Action upon bond. Before Judge Ellis. Eulton superior court. January 21, 1911.</p>

<p>Attachment. Before Judge Morris. Fannin superior court. October 21, 1910.</p>

Action for damages. Before Judge Fite. Gordon superior court. December 5, 1910. Taylor sued the Southern Bailway Company and Avery for personal injuries. There was a verdict for the plaintiff against both' defendants, whose motion for a new trial being overruled, they excepted.

<p>Complaint for land. Before Judge Whipple. Ben Hill superior court. December 3, 1910. (See 132 Ga. 648.)</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. September 14, 1910.</p> <p>Henry L. Wilson, Jack J. Spalding, W. T. Ashford, and Mrs. Susan W. Allgood brought suit against Mrs. Lizzie Ida Howell, Mrs. Eleanor Howell Gunby, Clark Howell Sr., trustee, Edgar Roberts, and Louise Roberts. The substance of the petition, so far as is now material, was as follows: In 1866 N. E. Gardner executed and delivered to O. W. Dill, as trustee, the following conveyance:</p> <p>“This indenture, made and entered into this the 4th day of July in the year of our Lord one thousand, eight hundred and sixty-six, between Nathaniel E. Gardner, of the county and State aforesaid, of the one part, and Charles W. Dill, of the same place, trustee for Eliza Ida Gardner and Mary Ellen Gardner, children of the said Nathaniel E. Gardner, all of the said county, of the other part; witnesseth, that, whereas the said Nathaniel E. Gardner, being'free from debt and being desirous of securing to his said daughters, Lizzie Ida Gardner and Mary Ellen Gardner, and their children by any future husband, a maintenance, support, and education, and being seized and possessed of the estate hereinafter mentioned, being acquired by purchase: Now, therefore, said Nathaniel E. Gardner, for and in consideration of the natural love and affection that he has and bears to his said daughters, Lizzie Ida and Mary Ellen, and for the purpose of providing a support, maintenance, and education for them, and also in consideration of the sum of ten dollars to him, the said Nathaniel E. Gardner, in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, and conveyed and doth by these presents grant, bargain, sell, and convey unto said Charles W. Dill, trustee as aforesaid, and to such other trustee or trustees as may hereafter be appointed in the place and stead of the said C. W. Dill, or his successors, trustees for the said Lizzie Ida and Mary Ellen or their children, the following named property, to wit: [omitting description of the property]. To have and to hold the said named property to the said Charles W. Dill, trustee, as aforesaid, with all the rights, members, and appurtenances thereof, together with all the improvements now being made thereon and such improvements I may choose hereafter to make thereon, and to such other trustees as may hereafter be appointed for the said Eliza Ida Gardner and the said Mary Ellen Gardner, in trust for their sole and separate use, benefit, and be-hoof for and during their natural lives, and at their deaths or the ■.death of either of my said daughters, to be equally divided share and share alike among the children; but in case that either of my said daughters should depart this life leaving no child or children or the issue of a child or children in. life at her death, then and in that event the said property to go to and vest in the other daughter, or in ease of her death her child or children or issue of child or children, if there should be any living, but if my other daughter should be dead without child or children or the issue of child or children living, then to go to and vest in any other child or children that I may have living, share and share alike. I hereby further direct that my two daughters shall own said property in common during their minority or until one or the other of them shall marry; but when they shall attain the age of twenty-one or either the one or the other of them shall marry, I direct that said property shall be divided equally between them by three competent disinterested men, who shall be selected by their trustee for that purpose, who shall enter upon and make a fair estimate of said property, not only in relation to its permanent value, but also in relation to its average proceeds and profits, and when so estimated the property shall be described on a separate list of said appraisers ■and folded carefully and put in a hat and my daughters shall draw^ for the same, the oldest being entitled to draw, and the estate of my' daughters shall thus be made separate; and I hereby further direct that Charles W. Dill, trustee as aforesaid, shall advance to my daughters, if necessary, the whole of the income or profits of, the property aforesaid, that he shall educate them in good style and furnish them means and facilities to qualify and sustain them in the best society, and that neither of them shall be accountable to the other for any part of the proceeds of said estate, but they each shall use said proceeds as their circumstances may require until said division shall be made, when their estate shall become individual and separate; but before said estate shall be divided, if there should be an accumulation of means sufficient to buy 'a piece of property ■of any considerable value, then I direct that said proceeds shall be invested in property of substantial value which will afford a fair and reasonable profit with prospect of permanent increase, which property shall be subject to the same division, limitations, and restrictions as the estate hereinbefore and hereinafter set forth. I hereby further direct and require that no part or portion of the corpus of said estate shall ever be sold until the life-estate is ended, for any purpose whatever, unless it should become less profitable than ordinary investments, or my daughters shall desire to change their residence to some other locality, or for some other alike good and substantial reason; but if such reason should ever exist, the fund •shall be reinvested, and before said sale shall be made I hereby direct that full and satisfactory reasons shall be given and clear and sufficient proof be made to the chancellor granting said order that such necessity exists, and that the proceeds of the same when made shall be reinvested in like property, or property as substantial in permanent value and as productive in its yield of profits. I herein again direct that said property at the death of either of my said daughters shall vest in and become absolute fee-simple estate in their child or children, or the issue- of their child or children; but if either or both of them should die without leaving child or children or the issue of such child or children living at the time of their death, then said property shall be subject to the limitations and restraints hereinbefore set 'forth.”</p> <p>In 1872 Dill, as trustee, procured 'an order at chambers from the judge of the superior court of Fulton county to sell the land conveyed to him as trustee, or so much of it as was necessary to satisfy certain judgments which had been rendered against him as trustee on debts against the grantor existing prior to the execution of the deed, to pay taxes due by the trust estate, and to pay for certain necessary repairs made upon the trust property. At a public sale made in pursuance of such order the plaintiff Henry L. Wilson purchased certain portions of the land conveyed in the trust deed. Another person bought some of the land so sold, and subsequently ■conveyed it to Wilson. There were other purchasers of different parcels of the land at such sale, under whom Spalding, Ashford, ,and Mrs. Allgood respectively hold under mesne conveyances. Dill resigned the trust in 1874, and Clark Howell Jr. (now Sr.), who1 had married Lizzie Ida Gardner, one of the eestuis qui trustent, was appointed in his stead, and accepted. Mary E. Gardner, the other cestui qui trust, died in childhood, prior to the resignation of Dill. Mrs. Howell is still in life. In 1878, Howell, as trustee, obtained an order from the judge of the superior court of Eulton county to sell at private sale other portions of the land of the trust •estate to Westmoreland, as trustee, and in pursuance of such order a sale was consummated by a deed from Howell, as trustee, to Westmoreland, as trustee, executed and delivered in September, 1878. The parcels of land conveyed to Westmoreland are now respectively ■owned by Spalding, Ashford and Mrs. Allgood, except small parts since sold by them under warranty deed. The proceedings to obtain this last order and the order itself were by inadvertence never ■entered on the minutes of the court, or otherwise recorded, and the original papers have all been lost. Mrs. Howell has only one living child, now Mrs. Gunby, her other child having died in infancy. N. E. Gardner had another child, Mary E. Gardner, born about ten years after the execution of the trust deed, who married and ■subsequently died, leaving as her only heirs at law the defendants, Edgar Roberts and Louise Roberts. The plaintiffs alleged, that they have severally been in adverse possession of the portions of the land respectively held by them under conveyances made by Dill and Howell as trustees, and under mesne conveyances from other purchasers at the sale made by such trustees, for more than seven years, and therefore that they not only have title by lawful conveyance, but also have good prescriptive title to the land so held by them; that one of the plaintiffs, Henry L. Wilson, shortly before this suit was brought, endeavored to sell a part of the land so held by him, but defendants raised certain questions as to the sufficiency of Wilson’s title, saying that there was a question as to whether the title acquired by Wilson and his coplaintiffs under the sales made by the trustees was only an estate for the life of Mrs. Howell, and at her death, under the conveyance by Nathaniel E. Gardner to Dill, as trustee, the fee would vest in Mrs. Gunby or her children, if they survived Mrs. Howell, and if they did not survive her, then it would vest in the defendants, Edgar and Louise Eoberts, children of Mary E. Gardner Eoberts, or their descendants; and on account of such questions the proposed purchasers declined to buy; and that “said questions so raised constitute a cloud upon the title of” petitioners. The prayers were: (a) that the plaintiffs be decreed severally to have a good fee-simple title superior to all claims of de-' fendants, jointly or severally; (5) that the trust deed be construed to convey the property in fee simple to the trustee for the uses and trusts therein specified; (c) that it be decreed that Dill, as trustee, and Howell, his successor, have always represented the fee-simple estate, but plaintiffs’ title tc their respective properties by prescription was good as against the trustees- as representing, the fee-simple estate; (d) that it be decreed that upon the death of Mary E. Gardner the interest of Mrs. Howell became a fee-simple interest, and that she has at all times since represented such interest, and that as to the interest so represented by her the plaintiffs be decreed to have a good prescriptive title; (e) that it be decreed that the sales by the respective trustees were valid and under proper orders of court, etc., and that certain deeds set forth in the petition were executed in pursuance of the orders of court, and that the deeds operated to convey the fee-simple title as fully as if it was owned and held by N E. Gardner at the time of executing the trust deed; and lastly that process issue, and that plaintiffs have all other and further relief in law and equity to which they might be entitled under the facts of the ease All of the defendants demurred to the petition generally and specially. The demurrers were overruled. After the evidence was submitted, the court directed a verdict in favor of the plaintiffs. The defendants excepted to both rulings just stated.</p>

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

Equitable petition. Before Judge Bell. Fulton superior court. October £9, 1910. Thomas E. Spruell and Joseph S. Power, who were nominated as executors of the will of Stephen Spruell Jr., made application to probate it in solemn form. The testator had a wife, one son (the above-named executor, T. E. Spruell), and seven daughters, one of whom was Mary A. Cox; and the will disposed of real and personal property.

Action for damages. Before Judge Bell. Fulton superior court. January 14, 1911.

<p>Action for damages. Before Judge Ellis. Eulton superior court. January 10, 1911.</p>

<p>Complaint. Before Judge Charlton. Chatham superior court. January 23, 1911. (See 134 Ga. 589.)</p>

Attachment. Before Judge Seabrook. .Liberty superior court. September 20, 1910. The bill of exceptions recites that C. J. McDonald sued out against H. P., T. T., and B. D. Bimes an attachment for purchase-money, returnable to the superior court, and at the first term filed his declaration in attachment, which was amended, and afterward was dismissed on general demurrer. Error is assigned on the judgment.

Equitable petition. Before Judge Felton. Bibb superior court. December 19, 1910. Mrs. Jack Lamar and Henry J. Lamar Jr. (hereinafter called the Third) brought their petition, alleging that they were the executrix and executor, respectively, of the last will and testament of Henry J. Lamar, deceased (called the Second), and praying for an accounting against Walter D. Lamar as executor of Henry J. Lamar Sr. (referred to in the petition as the First).

Petition for injunction. Béfore Judge Brand. Banks superior court. March. 3, 1911. J. M. Garrison, B. F. Suddeth, and F. M. Henderson filed their equitable petition against Logan Perkins, ordinary, and George W. ■Wiley, tax-collector of Banks county, seeking to enjoin the enforcement of a certain tax levy, and also to enjoin the payment of certain money to the Atlanta National Bank.

<p>Illegality of foreelosfire. Before Judge Fite. Bartow superior court. February 2, 1911.</p>

<p>1. On the trial of one charged with the murder of his wife, evidence is admissible which tends to show that for a long period of time prior to the homicide and until a short time prior thereto, the defendant was cruel to and ill-treated his wife, as tending to show malice and motive, and to rebut the presumed improbability of a husband murdering his wife.</p> <p>(a) In such a case, it is not necessary that all of such acts should be proved by the same witness.</p> <p>2. Considered as a whole, there was no error in' the charge complained of in the 2d division of the opinion.</p> <p>3. Where one who is charged with the murder of his wife relies upon the defense of misfortune or accident, and the trial judge has correctly given the law in charge to the jury on that subject, it is not error for the court to fail to state the contention of the defendant that he relies upon accident as having caused the homicide, in the absence of a request so to do, especially where it is manifest from the judge’s charge on this subject what the defense is upon which the defendant relies.</p> <p>4. It is not error for the court to charge the jury, in a case where one is charged with the murder of his wife, and where the defense is that the homicide was caused by the accidental discharge of the defendant’s pistol, that “If you believe that the defendant killed his wife without intending to kill her, but that it was done in the commission of an unlawful act which in its consequences naturally tends to destroy a human being, then the offense would be murder.”</p> <p>5. The evidence supported the verdict.</p>

<p>Indictment for murder. Before Judge Whipple. ^ Dooly superior court. December 30,1911.</p>

<p>Indictment for rape. Before Judge Freeman. Heard superior court. December 11, 1911.</p>

<p>Indictment for murder. Before Judge Daniel. Fayette superior court. December 18, 1911.</p>

<p>Money rule. Before Judge Frank Park. Dougherty superior court. March 28,1911.</p>

<p>Petition for injunction. Before Judge Hammond. Burke superior court. October 3, 1911.</p>

<p>Indictment for murder. Before Judge Daniel. Pike superior court. June 23, 1911.</p>

<p>Indictment for murder. Before Judge Whipple. Crisp superior court. December 30, 1911.</p>

<p>Indictment for murder. Before Judge Meadow. Elbert superior court. December IS, 1911.</p>

<p>1. Sufficient foundation was laid for the admission, as a dying declaration, of the decedent’s statement that the accused “shot her because she asked him for a match.”</p> <p>2. Statements made by the accused after the commission of the act upon which the indictment was founded, and which were not in the nature of res gestae, were inadmissible in evidence.</p> <p>3. The court did not err in refusing to permit a witness for the defendant to testify that “immediately after the shooting took place the defendant went to the husband of the deceased and called him down to the scene of the shooting.”</p> <p>4. There was nothing in the evidence to authorize a charge as to the law of involuntary manslaughter.</p>

<p>Application for alimony, etc. Before Judge Worrill. Miller superior court. October 24, 1911.</p>

<p>An equitable action by a vendor of timber against his vendee, and the latter’s subvendees taking with notice, to cancel all the sales, including that to the subvendees, for an infection inhering in the first conveyance and common to all, and to restrain the subvendees in possession from cutting the timber pending the suit, may be located in the county of the subvendees’ residence.</p>

<p>Injunction. Before Judge Frank Park. Dougherty superior court. September 25, 1911.</p>

<p>Where on ail interlocutory hearing for injunction it appears that the plaintiff and the defendant claim title to a lot of land in the possession of the defendant’s tenant, and the defendant is neither alleged nor shown to be insolvent, nor any equitable ground for injunction is shown, it is error to enjoin the defendant and his tenant from going on the land unless he monthly deposit a stated amount of rent with a named bank and also do an affirmative act (arrange to complete a house), concerning which there is neither proof nor any reference in the pleadings.</p>

<p>Illegality of'.execution. Before Judge Martin. Montgomery superior court. March 30, 1911.</p>

<p>The ordinary of Stephens county made a general assessment for the year 1909 against the taxpayers of the county, specifying so much per $100 for the various purposes named. There was no recommendation of the grand jury with respect to the taxes for “county purposes,” referred to in Civil Code (1910), § 508, and for these purposes the levy assessed an amount in excess of 50 per cent, of the State tax for that year. Under this levy the defendant in error paid all taxes assessed against it for other than general “county purposes,” and paid all of the amount for' that purpose which was legally levied against it, refusing to pay the balance. Thereafter, in the following year, and after all taxes (other than those represented by uncollected fi. fas. issued under the original levy) had been collected from all other taxpayers, the ordinary made what he called an amendment of the levy, by shifting from the items making up the general “county purposes” sufficient amounts or percentages to reduce the amount specified for such purposes to the legal limit; adding the amounts so taken to the other purposes named, but leaving the entire amount of tax to be paid the same. Held, this proceeding was not a legitimate amendment of the original levy, but amounted to an attempted new levy against a single taxpayer; and a fi. fa. based thereon, for the amount of the illegal taxes which the defendant in error had refused to pay, was unenforceable.</p>

<p>1. The main question being the right of a municipality to improve a street abutting on the railroad property of the defendant in error, and’ how far the right of way may be subject to local assessments, and to an effort to sell the right of way including the tracks, or that part occupied for public purposes, the principles decided in the case of Georgia Railroad &c. Co. v. Decatur, 137 Ga. 537 (73 S. E. 830), are applicable to the questions made by the record in the present case.</p> <p>2. An affidavit of illegality as a remedy lies only in favor of the defendant in execution; and the owner of property can not file an affidavit of illegality, if the execution is issued against some one else as being the owner of the property levied upon.</p> <p>(a) In such a case an equitable petition is an available remedy to enjoin the levy and sale, and to have done full and complete justice under the facts of the ease.</p> <p>3. The court did not abuse his discretion, under the facts in this case, in granting a temporary injunction and preserving the status until the final trial.</p>

Petition for mandamus. Before Judge Kawlings. Washington superior court. August 9, 1911. Held: and both Wood and Harman passed it and made the required legal grading to render them eligible to hold the office of county school commissioner. The grading of the two examinations was set forth in detail, showing the average mark of Wood to be 94-9/11, and that of Harman to be 87-2/11.

<p>A solvent claimant of land in possession of it through his tenant, who is not committing waste or doing any act tending to injure the property, will not be enjoined from, entering upon the land at the instance of another claimant, alleging himself to be the true owner. The latter’s remedy at law is complete.</p>

<p>Petition for injunction. Before Judge Maddox. Floyd superior ■court. November 25, 1911.</p>

Injunction. Before Judge Thomas. Thomas superior court. March 14, 1911. Held: that the plaintiffs have the right, under the contract, during the life of the same, to the right of trackage in the manner specified in the contract from the thirteenth milepost and the nineteenth milepost and another point about twenty miles south of Thomas-ville and from the eighth milepost and from such other points upon the line…

<p>Action for damages. Before Judge Pendleton. Pulton superior court. May 30, 1911.</p>

<p>Probate of will. Before Judge Conyers. Glynn superior court. July 15, 1911.</p>

<p>There is no law of force in this State which confers upon a judge any power- or authority to suspend the execution of a sentence imposed in a criminal case, except as an incident to a review of the judgment; and where a sentence, to which no exception is taken, directs that the person convicted pay the costs of prosecution, and in addition thereto that he be confined in the chain-gang on the public works of the county, or elsewhere as the proper authorities may direct, for the full term of twelve months, to be computed from the date of his delivery to the chain-gang; “provided, however, that this sentence to be confined upon the chain-gang be and the same is hereby suspended indefinitely during the good behavior of the defendant, the court reserving the right to have said sentence executed whenever in the discretion of the court it ought to be:” Held, that the portion of the sentence last quoted, purporting to suspend so much of the same as directs that the defendant be confined in the chain-gang, is of no force, and consequently should be ignored and the sentence executed as if it did not appear therein; and that one upon whom such a sentence has been imposed can not, though more than 12 months may have elapsed from the date of the sentence, be held to have served out the term therein mentioned, when in point of fact he has never been placed in the chain-gang; especially so when the sentence itself declares that the imprisonment in the chain-gang “be computed from the date of his delivery to such chain-gang.”</p>

<p>Injunction. Before Judge Fite. Murray superior court. November 24, 1911. •</p>

<p>1. Under former rulings of this court, the judgment of the trial court will not be reversed for refusing to direct a verdict on motion of one of the parties.</p> <p>2. The judge of the superior court should not direct a verdict, except where there is no conflict in the evidence, and where that introduced, with all reasonable deductions or inferences therefrom, demands a particular verdict.</p> <p>(a) In the case at bar, although there was positive evidence that one who appeared as a purchaser in an administratrix’s deed, together with two others, was not in fact such, but merely.loaned money to' the others for the purpose of paying a part of the purchase-price, and that ,his. name was inserted in the deed as a mode of securing him for the loan, and that the deed did not express the real legal intention of the parties, yet the entire evidence in the record was not such that it, with all reasonable deductions or inferences therefrom, demanded a verdict in favor of the plaintiffs, or authorized the presiding judge to direct a verdict in their favor.</p> <p>3. If a husband purchases land at a sale made by his wife as administratrix, such purchase is voidable at the election of heirs of the intestate, who move within a reasonable time after the sale to set it aside.</p> <p>4. The doctrine, that, although a sale may be voidable as against an original purchaser, bona fide purchasers from him for value and without notice may acquire a title which can not be successfully attacked or set aside, is not so applicable, to the present case as to demand a verdict in favor of the plaintiffs. This case did not originate in a proceeding instituted by heirs against subsequent purchasers from those who bought at the administratrix’s sale, to recover from them or cancel their title. As to the plaintiffs, it is an equitable proceeding instituted by persons who claim to be the original purchasers at the administratrix’s sale, for the purpose of correcting an alleged mistake in a deed made by the administratrix. The verdict directed was in favor of the plaintiffs on their proceeding and also against the cross-petition.</p> <p>5. Under the evidence in tlie. record, a direction of a verdict in favor of persons claiming to be purchasers at the aministratrix’s sale, and seeking to have the deed made to them and another so reformed as to eliminate such other person as a purchaser, can not be sustained by this court on the ground that, as matter of law, the defendant who contested the case as guardian for the minor heirs, and such heirs, were estopped from asserting the invalidity of the sale by reason of the receipt of a part of the purchase-money by the guardian.</p> <p>6. On another trial the newly discovered evidence can be offered, and it is unnecessary to deal with its weight or force at this time.</p> <p>7. The fact that a defendant may make a motion that a verdict be directed in his favor, which is overruled, does not, without more, waive the submission of the case to the jury, or authorize the presiding judge, on motion, to direct a verdict for the plaintiff, where the evidence, with all reasonable deductions and inferences therefrom, does not demand such a verdict.</p> <p>8. As a reversal is granted, it is unnecessary to deal with the question of taxing costs by the presiding judge.</p>

<p>Indictment for murder. Before Judge J. B. Park. Jones superior court. December 26, 1911.</p>

<p>1. Upon the issue of whether certain property was purchased with the proceeds of property exempted as a homestead, the facts should be stated and the jury left to draw the inference, without the aid of a witness’s conclusion from those facts that the consideration of the purchase of the property was the proceeds of the homestead.</p> <p>2. Where the record title to land is in the defendant, who is in possession of it, and credit is extended to him on the faith of his ostensible ownership, in a proceeding to subject the -land to the lien of the judgment of such creditor, where the defendant as head of his family files a claim and contends that the proceeds of certain personalty exempted as a homestead were used in the purchase of the land, the burden is on the claimant to show, not only that the land was purchased with the proceeds of the homestead, but also that the creditor had notice of it at the time he extended credit.</p> <p>(a) The evidence was insufficient to affect the creditor with notice that the land was purchased with the proceeds of homestead property.</p>

<p>Action, for damages. Before Judge Freeman. Carroll superior court. March 31, 1911.</p>

<p>1. A mortgage on real estate, attested by but one witness who is not an officer authorized by law to attest a mortgage so as to authorize its registry, is not entitled to be recorded.</p> <p>2. A mortgage on land, attested by only one witness, is not void; and if a subsequent purchaser buys with actual notice of the prior mortgage, he takes subject to it.</p> <p>3. The record of a mortgage, made without due attestation or probate, will not be held to be constructive notice to a subsequent bona fide purchaser.</p> <p>4. Actual payment of the purchase-money, or what is equivalent thereto, before notice of a defectively recorded mortgage, is necessarv to the protection of a subsequent purchaser.</p> <p>5. Where a purchaser buys land without notice of any mortgage thereon, and gives his negotiable notes therefor, which are negotiated by the payee, so as to cut off any defense, before the purchaser receives notice of the prior lien, and the price paid is a full and fair consideration, such person will be deemed to be a bona fide purchaser, and as such entitled to protection.</p> <p>6. If there has-been a partial payment (or what is equivalent) of the pur-chase-money before notice, the purchaser will be entitled to protection to that extent; but appropriate equitable pleadings are necessary for this purpose.</p> <p>7. The record of a mortgage defectively attested or probated amounts to no record of it. If the mortgage afterwards be attested so as to entitle it to record, it must be recorded anew in order for it to be constructive notice. The entry of the name of the new attesting official upon the old record is improper and will not suffice.</p> <p>8. The clause in the mortgage, “the purchase-money for the sale of any timber on said land, or any use of same, to be applied as a credit on said note,” even if construed as a power reserved to the mortgagor to sell the timber free of the mortgage lien, would not authorize a sale on credit.</p>

<p>Validation of bonds. Before Judge Rawlings. Emanuel superior court. June 22, 1911.</p>