Volume 138 — Georgia Reports

<p>1. There was no abuse of discretion in granting temporary alimony and .attorney’s fees, under the facts in this case.</p> <p>(а) The mere fact that the defendant flies a plea to the jurisdiction, and the evidence on that subject is conflicting, does not prevent the presiding judge from granting temporary alimony and attorney’s fees until the Anal trial.</p> <p>(б) On the hearing of an application for temporary alimony, the presiding judge may award reasonable Attorney’s fees, in view of the nature and character of the case, although there may be no direct evidence introduced as to the value of the services rendered or to be rendered.</p> <p>2. On an application for the writ of ne exeat, filed by a wife who is seeking to obtain alimony from her husband, where no removal of property is involved, but only the prevention of the husband from going beyond the limits of the State, it is error to order the writ to issue and the defendant to be imprisoned unless he shall give bond “not to remove beyond the jurisdictional limits of the State of Georgia, and conditioned to pay any judgment that may be found against him in favor of the plaintiff.”</p> <p>3. If a wife, who was seeking alimony against her husband, and who had embodied in the petition therefor an application for the writ of ne exeat against him, telephoned to a notary public that she was swearing to a petition for alimony and that her attorney would carry it to the notary for his signature, and he answered “all right,” and if subsequently the paper was presented by the attorney to the notary public and he signed the jurat, this did not constitute the making of an affidavit, or the verification of the application for ne exeat required by law.</p> <p>(a) Where, upon a proceeding thus sought to be verified, the judge ordered the writ of ne exeat to issue, and the defendant was arrested and gave bond, he could move- for a revocation of the order based on such at tempted verification.</p> <p>(6) If the verification or order could be amended, no motion was made for that purpose.</p> <p>4. Where a wife, in a suit for alimony against her husband, alleged abandonment by him, but did not charge adultery, and he denied the allegations of the petition and alleged that she went to her father’s home, and after a time refused to answer his letters or to communicate with him, though he had frequently written to her, and that his conduct had been exemplary, on an interlocutory hearing of the application for temporary alimony there was no error in admitting in evidence letters found by her in his pocket, written by another woman, and very affectionate in character, over objection on the ground that they were of a licentious character, that, they were offered and were intended to show that the defendant had been guilty of adultery, and that they could not be admitted in evidence on the affidavit of the wife as to their finding.</p> <p>5. Where the presiding judge heard together the application for temporary alimony and the motion to revoke the order for the writ of ne exeat, and announced that he would hear the evidence at once as a matter of time-saving, and at vthe close entered an order granting alimony but not revoking the grant of the writ of ne exeat, and there was nothing to indicate that he intended to consider that subject further or to withhold judgment in regard to it, this amounted to a refusal to grant the motion, and authorized an exception based thereon.</p>

Rule for contempt. Before Judge Rawlings. Screven superior court. September 9, 1911. Mrs. Lecie Davis filed her petition for divorce against her husband, J. A. Davis, on the ground of cruel treatment, and applied for temporary alimony for herself and their minor daughter, who lacked only a few weeks of being 21 years of age. The hearing was before the judge on the sworn petition and answer and the testimony of the plaintiff and defendant.

<p>Action for damages. Before Judge Thomas. Tift superior court. July 6, 1911.</p>

<p>Disbarment of attorney. Before Judge Ellis. Eulton superior court. August 12, 1911.</p> <p>Jones, a practicing lawyer, was charged with deceit and wilful misconduct, upon substantially the following facts as alleged: As attorney at law for a corporation of which the relator was president' and managing officer, Jones sued out an attachment, upon a debt of $571, against the College Park Lumber Company, and caused a garnishment to be issued and served upon one Kelly, who owed the lumber company $700. Afterward, in consideration of $100 paid to him by the attorney for the lumber company, Jones dismissed the attachment and gave, in behalf of his client, a receipt for the $100, reciting therein that he had dismissed the attachment and garnishment proceedings. He concealed from his client what he had done, as just stated, but thereafter endeavored to obtain the relator’s consent to such dismissal. It was refused. Then he informed the relator that the attachment had already in fact.been dismissed, claiming that it would have been ineffectual on certain legal grounds. He stated to the relator that he was about to-institute a proceeding against the lumber company for a receivership, in which he estimated that his fee would be $300, and that he would divide with his client whatever fee he received, in addition to'the recovery of as much of his client’s demand as could be effected in that proceeding. After ascertaining that the attachment had actually been dismissed, the relator consented for his company to be a plaintiff in the receivership case". The case was instituted, the affairs of the lumber company were administered therein, and a final decree was entered by consent. By this decree the creditors of the lumber company were awarded fifty per cent, of their demands, a fee of $370 was awarded to the defendant’s attorney, and a fee of $300 was awarded to Jones and two other attorneys for plaintiffs. Of this Jones received $150. About a year after the dismissal of the attachment and the payment of the $100 to Jones, the relator learned of the fact and confronted Jones with it. He at first denied receiving the $100, then stated that he had returned it to the attorney of the lumber company, then tried to settle the matter by offering to pay the $100 to the relator, and finally contended that the relator’s company had no right to it, and that it belonged to the lumber company.</p> <p>By his answer Jones denied all deceit and misconduct, and set up, among many allegations, that the $100 paid to 'him was to be held by him to guarantee his client against costs should it be held liable therefor in bankruptcy proceedings that were threatened; that the attachment could and would have been avoided; that he did not agree to divide his fee; that he had offered to pay the $100 to his client, but the offer was declined, and he still held the amount and was ready to pay it over; that after the attachment and garnishment had been issued, it was discovered that the attachment wás void (for reasons stated); that it was for the interest of his client to dismiss the attachment and proceed under the receivership; that his client received thereby more than it. could have received in bankruptcy proceedings; that the defendant in attachment would have resorted to bankruptcy except for the agreement made by Jones in behalf of his client; and that the client was fully informed of all the facts and circumstances, and agreed to the procedure adopted. The case, upon the pleadings and the evidence, was submitted to the judge without a jury. He found that the relator’s charge v;as sustained, and entered judgment of disbarment. A motion for new trial was overruled, and Jones excepted.</p>

<p>Questions of law; from Court of Appeals. 3172.</p> <p>The Court of Appeals certified to the Supreme Court the following questions:</p> <p>“1. Where a militia district is abolished by being absorbed in the territory of an adjoining militia district, can the commissioned notary public of the abolished district continue legally to discharge the funefaons of his office, and can he legally enter judgments after the abolition of’ the militia district which he was appointed to serve?</p> <p>“2. Is § 381 of the Civil Code (1910), which reads as follows: "Making or changing districts, consequences. If, in laying out a new district or in changing the lines of old districts, or. in consolidating or abolishing old districts, the residences of justices of the peace or constables elected or appointed are included in the new district, or cut off from the district for which they were elected or appointed, they have authority to discharge their duties for the district for which they were elected or appointed, until their terms of office expire and .their successors in such district are qualified, unless elected or appointed to the same office in the new district to which they are eligible/ in conflict with article 6, section 8, paragraph 1, of the constitution of this State, which provides that: ‘Commissioned notaries public, not to exceed one for each militia district, may be appointed by the judges of ^superior courts in their respective circuits, upon recommendation of the grand juries of the several counties. They shall be commissioned by the Governor for a term of four years, and shall be ex-officio justices of the peace, and shall be removable on conviction for malpractice in office;’ for the reason that under the operation of said act, in some instances, there might or would be more than one commissioned notary public and ex-officio justice of the peace?”</p>

<p>1. There was no complaint that any error of law was committed upon the trial. There was evidence to authorize the verdict.</p> <p>2. The alleged newly discovered evidence was merely cumulative as tending to corroborate the testimony of a number-of witnesses who testified on the trial in behalf of the accused, and moreover in all probability it would not cause a different result on another trial.</p> <p>3. It did not sufficiently appear that one of the jurors who tried the case was not a fair and impartial juror because of bias against the accused.</p>

<p>1. It is not error for the judge to charge the jury, on the trial of one indicted for murder, that “The defendant is presumed by law to be innocent, and that presumption remains with him until his guilt is established (in the ease of circumstantial evidence, such as is trpe in this case) by evidence consistent with his guilt and inconsistent with his innocence, and which establishes his guilt to the exclusion of every other reasonable hypothesis save that of his guilt of the crime charged against him,” it being manifest that the use of the language, “such as is true in this ease,” was not an expression of the court’s opinion that the defendant’s guilt was established by circumstantial evidence, blit, instead, that it was true that the case for the State was based upon circumstantial evidence.</p> <p>2. It is inaccurate, but not cause for new trial in this case, for a judge to charge the jury, on the trial of one accused of murder, in the following language on the subject of impeachment: “The court instructs you, when a witness is successfully impeached as to a material matter, his credit as to other matters is for the jury. It is a question of fact to he determined by the jury solely, whether a witness has been impeached or not. A witness is impeached only when his unworthiness of credit is absolutely established in the minds of the jury.”</p> <p>3. Where one is on trial charged with murder', and the State relies upon circumstantial evidence for conviction, it is not error for the court to charge the jury: “If you believe from the evidence in the ease that such evidence is consistent with the guilt of the defendant and inconsistent with his innocence, and that the same establishes his guilt to the exclusion of every other reasonable hypothesis except, as stated, his guilt of the crime charged agaiixst him, you would be authorized to find the defendant guilty.”</p> <p>4. The verdict is supported by the evidence.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. January 24, 1912.</p>

<p>Indictment for murder. Before Judge Sheppard. Bryan superior court. January 31, 1912.</p>

<p>Petition for injunction. Before Judge Freeman. Troup superior court. October 25, 1911.</p>

<p>Action for damages. Before Judge Daniel. Butts superior court. April 8, 1911.</p> <p>Jesse I. Nappier brought suit for damages against the Southern ^Railway Company, alleging in substance as follows: On November 22, 1909, he was in the city of Jackson, Georgia. He purchased from the agent of the defendant at that place a ticket for the town of Jenkinsburg, a station on the line of the defendant. He entered safely upon the train of the defendant as far as the platform, and attempted to get on the inside of the car to a seat. While he was doing this, the train moved off on its regular schedule. He observed every precaution in riding on the outside of the passenger-coach, and tried to gain admission thereto, but could not get inside the car, on account of the crowd of people therein. The distance from the point where he boarded the train to the point of his destination was about five miles. While he was thus standing on the platform of the car, the conductor came to the plaintiff and others and asked for their tickets. When plaintiff delivered his ticket to the conductor, he at the same time demanded entrance to the car. The conductor accepted the ticket but “made no effort to gét or allow petitioner to get inside the car to a seat and greater place of safety.” While standing on the platform and endeavoring to taire care of himself as best he could, and when within about a mile of the station where he expected to leave the train, he was violently thrown from the car by reason of his inability to longer hold on to the supports which he had grasped. By reason of the violent swaying and rocking of the car, and its crowded condition, he lost his hold and fell to the ground, causing him serious injury. He has endured much pain and suffering, and has been put to the expense of a physician’s bill of $200. He was a healthy- and vigorous man, 28 years of age at the time of the injury, and was earning $35 to $40 per month. He has been permanently injured and his earning capacity destroyed. The allegation as to the respect in which the defendant was negligent was as follows: “Your petitioner alleges that said railway company was careless, negligent, and failed to perform its duty to your petitioner, in that it, by and through its agents, the conductor of said train, its auditors, porters, and other employees of said company, failed, neglected, and absolutely refused to provide a place of safety on the inside of said ear for your petitioner, after accepting the ticket for his passage to the point of destination, which acts, neglect of duty, are here' charged as cause of petitioner’s injury.” The defendant demurred to the petition! An amendment was made amplifying an allegation in regard to the failure to furnish sufficient room in its ears. The demurrer was overruled, and exceptions pendente lite were filed.</p> <p>The defendant denied the substantial allegations of the petition, and alleged that it exercised all due care and diligence, that the plaintiff himself was negligent, and that, if the ■ defendant was negligent, the plaintiff could have avoided the consequences thereof by the exercise of ordinary care and diligence. On the trial the jury found fox the plaintiff $1,000. The defendant’s motion for a new trial was overruled, and it excepted.</p>

<p>Equitable petition — demurrer. Before Judge Frank Park. Calhoun superior court. August 20, 1910.</p>

<p>Equitable petition. Before Judge Thomas. Berrien superior court. February 2, 1911.</p>

Equitable petition. Before Judge Thomas. Berrien superior court. March 3, 1911. F. M. Shaw brought his equitable petition against W. L. Fender and L. D. Carter, alleging, that he was the owner of a described tract of land, and that the defendants were cutting into the timber thereon for the purpose of producing turpentine; and he prayed for an accounting of past operations and an injunction against further trespass.

Action for damages. Before Judge Ellis. Fulton superior court. July 1, 1911. Buth A. Jackson, by her next friend, brought suit against the Western & Atlantic Bailroad Company and the Seaboard AirLine Bailway, to recover damages for the tortious homicide of her husband.

<p>Before Judge Martin. Dodge superior court. February 21, 1911.</p>

Mortgage foreclosure. Before Judge Rawlings. Johnson superior court. March 14, 1911. J. S. Wood & Brother foreclosed certain chattel mortgages against Mrs. D. P. Culver and her husband, W. L. Culver.

<p>Alimony, etc. Before Judge Hammond. Bichmoud superior court. October 7, 1911.</p>

<p>Alimony, etc. Before Judge Felton. Bibb superior court. November 24, 1911.</p>

Complaint. Before Judge Sheppard. Liberty superior court. February 20, 1911. The First National Bank of Charleston brought suit in the superior court of Liberty county against J. L. Dukes as maker, and M. E. Dukes as indorser, on a promissory note. The suit was filed on September 29, 1909, and was returnable to the February term, 1910. The petition alleged that the parties defendant were residents of Liberty county.

<p>1. The notice to the creditor by a surety to proceed against the principal debtor, required by the statute, is written notice; an oral request will not suffice.</p> <p>2. The right of a payee of a note to resort to the sureties thereon is not lost because of his failure to sell personal property held as collateral, immediately on the maturity of the note.</p>

<p>From Lowndes superior court. Motion to dismiss.</p>

<p>Petition for mandamus. Before Judge Martin. Pulaski superior court. January 6, 1912.</p>

<p>1. A bank check tendered in payment is not such until paid.</p> <p>(a) A certain mule was sold at a given price for cash, and a bill of sale executed thereto and delivered to the purchaser, warranting its soundness. In payment for the mule a check on a bank was delivered to the vendor for the amount of the purchase-price. The vendee on the same day of the trade attempted to work the mule, and found it to be diseased, and immediately notified the bank on which the check was drawn not to pay it when presented, and payment was accordingly refused. The vendee by letter to the vendor, who lived in a different town, offered to turn the mule back to the vendor, but, failing to hear from him, traded it. The vendor demanded possession of the mule from the vendee soon after it had been traded by him. The unpaid check was not formally tendered to the drawee before suit, but was produced on the trial of the case and offered in evidence. On the failure of the vendee to deliver the mule the vendor brought an action of trover for its recovery and hire. Held, that, the transaction of purchase and sale being a cash one, the title to the mule did not pass from the vendor to the vendee on the failure of the bank to cash the check.</p> <p>(Z>) An offer of a vendee, in a letter sent by mail, to tender back personal property to a vendor living in a different town, which letter was never received by the vendor, was not a lawful and valid tender.</p> <p>(c) Under the evidence in this case, the failure of the court to charge the jury that before the plaintiff could recover he would 'have to tender to the defendants the cheek that he received for the mule, before a conversion would be proved, was not error.</p> <p>2. In an action for the recovery of personal property, where the plaintiff elected to take a money verdict, and the only evidence as to the value of the property related to the time of the conversion, and no evidence as to the value at other times was introduced, it will not require a new trial that the presiding judge charged: “If you find for the plaintiff, gentlemen of the jury, you would he authorized to find the amount of the proved value of this property. If you find for the plaintiff, you can find the highest or lowest amount, that is a matter for you to say, with interest from the date of the conversion or the date when the defendants took possession of this property.”</p>

Injunction. Before Judge Pendleton. Fulton superior court. May 23, 1911. The Scarbrough Company, a corporation of the State of Maine, filed an equitable petition against C. L. Kinney, alleging in substance as follows: The defendant is indebted to the plaintiff in the sum of $727.96, on an itemized bill. He was employed by the plaintiff as salesman and local manager for the sale of maps, under a written contract, for a territory to be assigned to him.

<p>No errors of law appear to have been committed by tbe trial court, and the evidence authorized the verdict.</p>

<p>Petition for injunction. Before Judge Roan. Campbell superior court. July 15, 1911.</p>

<p>Action for damages. Before Judge Charlton. Chatham superior court. April 28, 1911.</p> <p>Robért Knowles brought suit against A. E. Churchill, and alleged substantially as follows: On the 12th day of January, 1911, he was employed by the defendant as a laborer on the steamship “St. Bede.” The vessel was being loaded with cotton, and Knowles was working in the hold of the ship, where he caught the bales as they were lowered and placed them in the proper place in the hold for stowage. The method employed was to hoist the cotton two bales at a time from the lighter, by means of a swinging beam or derrick, and then lower the cotton into the hold of the vessel where it was stowed. The cotton was hoisted by means of a winch-engine, and the cotton was grabbed by a pair of hooks which should be imbedded into the cotton in order to. take a firm hold and prevent it from slipping from the hooks while being hoisted and lowered. There was a platform or staging erected at the coaming of-the hatch, upon which the cotton is permitted to rest, after being brought from the lighter, and it should be inspected to see that the hooks are properly caught before the cotton is lowered into the hold of the vessel. It was necessary and customary for 'a hatch-tender or other person to. be stationed at the hatch opening, whose duty it was to signal the men in the hold below to stand clear, which means to get out of the way when the cotton is being lowered from above. On January 13, 1911, while the plaintiff was working in the lower hold of the steamship, his duties required him to be beneath the opening for the purpose of seizing bales of cotton to be stowed, and while thus engaged, there being no signal or warning from above to stand clear, or any notice whatever that bales of cotton were about to be lowered, a bale of cotton fell from above and .struck the plaintiff on his left shoulder, breaking the shoulder blade and otherwise severely injuring, bruising, and spraining his back, neck, chest, and arms. The bale which struck him was one of the two being lowered into the hold, and was not securely and substantially held by the hooks; and by reason thereof it fell and injured the plaintiff as above stated. He alleges negligence against the defendant as follows: (») In not properly fastening the hooks in.the cotton. (5) In not properly inspecting the hooks before the cotton was lowered, to determine if they were properly imbedded. (c) In not giving the signal or warning that cotton was being lowered.</p> <p>To this petition the defendant filed general and special demurrers. The court passed an order sustaining the general demurrer, and overruling some and sustaining some of the grounds of special demurrer. To the order sustaining the general demurrer the plaintiff excepted.</p>

<p>Petition for injunction. Before Judge Edwards. Douglas superior court. July 21, 1911.</p>

<p>Equitable petition. Before Judge E. W. Freeman. Meriwether superior court. January 25, 1911.</p>

<p>Trover. Before Judge Freeman. Heard'superior court. May 16, 1911.</p>

<p>Complaint for land. Before Judge Freeman. Meriwether superior court. August 12, 1911.</p>

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

<p>Action for damages. Before Judge Beagan. Upson 'superior court. December 27, 1910.</p>

<p>Action for damages. Before Judge Gilbert. Marion superior court. November 2, 1911.</p>

<p>Action for damages. Before Judge Worrill. Terrell superior court. March 28, 1911.</p>

<p>Complaint. Before oudge Gilbert. Taylor superior court. June 13, 1911.</p>

<p>1. An exemplification from the record of the various proceedings in the • court of ordinary relating to the administration of an estate is not to be rejected from evidence because the verification of the whole is embraced in one certificate, where the entire record is competent evidence.</p> <p>2. The general rule is, that where a judgment is relied upon as an estoppel, or as establishing a particular state of facts, of which it was the judicial result, it can be proved only by offering in evidence a complete and duly authenticated copy of the entire proceedings in which the same was rendered; yet, where the only direct object to be subserved is to show the existence and contents of such judgment, a properly authenticated copy of the judgment entry of a court of record, possessing general original jurisdiction, is admissible, without more.</p> <p>3. In a suit against the sureties of a removed administrator, by his successor in office, a judgment rendered by the ordinary against the administrator on a citation by the distributees for a settlement is competent evidence.</p> <p>4. The Civil Code, § 3974, authorizes a suit against the sureties of an administrator alone, if their principal is beyond the jurisdiction of the State, or is dead and his estate unrepresented, or in sireh position that an attachment may be issued against him. Where in an action against the sureties it is alleged that the administrator absconds and has removed from the State, and this allegation is denied in the answer, it is error to direct a verdict without uncontradicted proof of this allegation of the petition.</p>

<p>Petition for injunction. Before Judge Pendleton. Eulton superior court. June 20, 1911.</p>

<p>Habeas corpus. Before Judge Boan. DeKalb superior court. December 9, 1911.</p>

<p>1. On the trial of a suit against a railroad company by one who had received personal injuries on account of alleged negligence on the part of the company, by reason of a depression on the side of the track at the place where the injury occurred, it was not error to allow the plaintiff to testify as follows: “Q. Had you ever been to Davisboro before? A. Yes, sir; I had got off there once, going north. They stopped at the crossing just north of the depot, and I got off on the opposite side. .That is the only time I had gotten off at that landing.”</p> <p>2. Where evidence is admissible for one purpose, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury.</p> <p>3. In a suit against a railroad company to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the company, it is not error for the court to charge the jury two sections of the code in immediate connection with each other, where one states a general rule authorizing recovery against a railroad company where both parties are at fault, and the other section states a particular instance in which a recovery can not be had.</p> <p>4. 5, 6. While the charges to which exceptions were taken in the 8th, 9th, and 10th grounds of the motion for a new trial were not entirely accurate when considered by themselves, yet in view of the entire charge they would not alone require a reversal. But as the case is to be returned for a new trial, they can be corrected on the next hearing.</p> <p>7. Where evidence was admissible for one purpose, but (in the absence of instructions from the court to the jury to limit its consideration to that purpose) might be considered by the jury for other purposes, it was harmful error requiring a new trial for the court, on written request made therefor, to refuse to instruct the jury that the evidence was admissible for one purpose only, and not to consider it for any other purpose, notwithstanding counsel for the plaintiff stated to the court in the presence of the jury, when objection was made to the admission of the evidence, that the purpose of the evidence was that for which it was admissible.</p> <p>8. In a suit against a railroad company to recover damages for injuries alleged to have been caused, among other things, by the negligence of the company in not providing a safe place for passengers to alight from its passenger-trains at a particular place, it is not error for the court to refuse to charge the jury thus: “The plaintiff can recover only upon the specific acts of negligence set out in the petition. The plaintiff alleges that the place was unsafe, because the landing was lower than the tops of the cross-ties. If you should find from the evidence that the landing was not lower than the tops of the cross-ties, you should find that the landing place was not unsafe so far as the surface of the ground was concerned.”</p>

<p>Mandamus. Before Judge Hammond. Biehmond superior court. August 12, 1911.</p>

<p>From Bibb superior court. Motion to dismiss.</p>

<p>Claim. Before Judge Littlejohn. Stewart superior court. July 24, 1911.</p>

<p>The liability of persons who organize a corporation and transact business in its name, before the minimum capital stock has been subscribed for, is to creditors, and is not an asset of the corporation; and under the ruling in the case of John V. Fanoell Go. v. Jackson Stores, 137 Ga. 174 (73 S. E. 13), the receiver of the corporation could not maintain a suit against persons falling within the provisions of § 2220 of the Civil Code, to collect from them, as an asset of the corporation, an amount necessary to pay the outstanding debts of the corporation.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. January 28, 1911.</p>

<p>Action of trespass. Before Judge Frank Park. Decatur superior court. July 5, 1911.</p>

<p>Equitable petition.' Before Judge Cbarlton. Chatham superior court. July 15, 1911.</p>

<p>Complaint. Before Judge Parker. Pulaski superior court. August 15, 1911.</p>

<p>Action upon contract. Before Jndge Thomas. Thomas superior court. April 18, 1911.</p>

<p>Exceptions to auditor’s report. Before Judge Pendleton. Pulton superior court. May 10, 1911.</p>

<p>Complaint. Before Judge Daniel. Pike superior court. May 20, 1912.</p>

<p>' Indictment for rape. Before Judge Daniel. Upson superior court. February 13, 1912.</p>

<p>Indictment for murder. Before Judge Sheppard. Bryan superior court. February 2, 1912.</p>

<p>Indictment for murder. Before Judge Worrill. Early superior court. February 29, 1912.</p>

<p>Indictment for murder. Before Judge Worrill. Miller superior court. February 3, 1912.</p>

<p>Questions of law; from Court of Appeals. 3714.</p>

<p>Action for damages. Before Judge Freeman. Meriwether superior court. June 3, 1911.</p>

<p>Complaint. Before Judge'J. B. Park. Baldwin superior court. January 20, 1911.</p>

<p>1. Where suit was brought against a firm and against two persons alleged to be members thereof, one of whom pleaded no partnership, there was no error in refusing to admit in evidence on his behalf a letter to him from the other alleged partner, dated eleven months after the date of the contract on which the suit was based, and several months after the cause of action accrued, in which the writer stated that he had that day discontinued “the American Cotton College” (the name of the alleged firm), that the addressee was at liberty to operate it for his own use and benefit, and that, in so doing, it was expressly agreed and understood that the writer would in no way hold the addressee for any of the outstanding liabilities.</p> <p>2. Where to a suit against an alleged partnership one of the defendants filed a plea of no partnership, it was competent for the plaintiff to introduce in evidence printed letter-heads containing the alleged partnership name, “The American Cotton College,” and the names of the alleged partners as “associate presidents,” together with evidence that such letter-heads, and others of the same character, were used by the defendant.</p> <p>(a) The plaintiff was not obliged to rest on the introduction of a single specimen of the letter-heads and upon the statement of the defendant pleading no partnership that stationery of this character was used. He could introduce several letter-heads of like character, which had been used in correspondence. Nor was the court compelled, on suggestion of counsel for the defendant who denied being a partner that he would consent to select one of the letter-heads to go to the jury, with the statement that the remainder were identical in form with it, and that stationery of that character was used, to accede to such proposition and direct that such course be taken.</p> <p>(&) The admission in evidence of such letter-heads was not erroneous, although upon the paper on .which they were printed were written certain letters which were not offered or introduced in evidence.</p> <p>(c) While, if the letters which thus went into the physical custody of the jury were of a character calculated to affect injuriously the defendant who pleaded no partnership, it would have been better practice to guard against any such possible injurious consequences by requiring the letters to be severed from the letter-heads, or by having the writing covered so as not to be read by the jury; and while, after the jury had seen them, it would have been well to give an instruction that the letters were not in evidence and should not be considered in arriving at a verdict, it not appearing that any such point was raised by a request to have the letters covered from sight, or to give instructions to the jury, or otherwise, under the facts of the case the omission of the court to charge on the subject was not error requiring a new trial.</p> <p>3. Where suit was brought on an open account for advertising done under a contract made by an alleged partnership, and one of the members answered that he could not admit or deny the allegations of the petition for want of sufficient information, and the other denied the allegations of indebtedness and pleaded no partnership, this placed on the plaintiff the burden of proving both the debt and the partnership in order to bind the latter defendant, and it was incorrect to charge that the only issue was one of partnership.</p> <p>(a) If this were the only error, whether, under the evidence, it would require a new trial, query.</p> <p>4. If a person holds himself out, or permits himself to be held out, to the world as a partner in a business, he will be bound to one who contracts with the purported partnership, on the faith of such representations, whether in fact he has any interest therein or not.</p> <p>(а) While the principle just stated is correct as an abstract proposition of law, there was no evidence that the plaintiff knew of any such representations of the existence of a partnership until after the contract was made with it, or that it acted on the faith thereof. And a charge submitting that question to the jury was error.</p> <p>(б) Letter-heads, used with the knowledge of one sought to be held bound as a partner, may have a value as evidence tending to prove the existence of a partnership; but unless they held out such person as a partner and the plaintiff acted on the faith of them, they would not create an estoppel.</p> <p>(e) The charges of the court on the subject were incorrect.</p>

<p>A combination between a defendant in execution and a prospective bidder to suppress tbe usual competition at a sheriff’s sale is illegal from considerations of public policy; but equity will not cancel the sheriff’s deed made in pursuance of the sale, at the instance of the defendant, on the ground that bidders were deterred from bidding, as a result of the agreement between him and the purchaser.</p>

Action for damages. Before Judge Hammond. Bichmond superior court. August 15, 1911. The widow of Burekhalter sued to recover on account of his homicide.

<p>Complaint for land. Before Judge Bawlings. Jenkins superior court. June 21, 1911.</p>

<p>Equitable petition. Before Judge Felton. Houston superior court. April term, 1911.</p>

<p>Claim. Before Judge Walker. Warren superior court. April 11, 1911.</p>

<p>1. Where the General Assembly creates an office and provides that the officer shall be appointed by the Governor, by and with the advice and consent of the Senate, who shall hold his office for the term of four years, under the provisions of the Civil Code, § 261, the office does not expire at the expiration of such term, but the appointee holds over until his successor is commissioned and qualified.</p> <p>2. Where in creating an office the General Assembly provides that the officer shall be appointed by the Governor, by and with the advice and consent of the Senate, a person does not become the successor of another in office by mere executive appointment. If the term of the incumbent in office has expired, but he still continues to discharge his duties, there is no such vacancy in the office as will authorize the Governor to fill it by the appointment of a successor without the consent of the Senate.</p>

<p>This writ of error was upon the refusal of a supersedeas in the case next preceding.</p>

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

<p>Questions of constitutional law; from Court of Appeals. 3519.</p> <p>The Court of Appeals has certified to the Supreme Court the following questions:</p> <p>“1. Is that part of the act approved August 6, 1909 (Acts 1909, p. 279), abolishing the city court of Mount Vernon, which provides for the transfer of all cases from that city court to the superior court, and for the trial of them in the superior court, unconstitutional because violative of article 1, sec. 4, par. 1, of the constitution of Georgia (Civil Code (1910), § 6391), which provides that 'no special law shall be enacted in any case for which provision has been made by an existing general law. No general law affecting private rights shall be varied in any particular case by special legislation.’ ? In this connection, counsel presenting the constitutional question make the point that there are general laws which provide for the institution and trial of suits in the superior court, among others the following, which are repugnant to the special scheme contemplated by the act in question: 'All suits in the superior courts shall be by petition to the court. To every petition the clerk shall annex a process requiring the appearance of the defendant at the return term of the court. All suits must be filed with the clerk at least twenty days before the return term thereof. Process returnable to said superior courts must be served upon the defendant at least fifteen days before the return term.. No trial in any civil case shall be had at the first term.’</p> <p>“2. Is the above-recited act unconstitutional because it is violative of article 6, sec. 9, par. 1, of the constitution of Georgia (Civil Code (1910), § 6527), which provides that the proceedings and practice of all courts of the same grade and class, so far as regulated hy law, shall be uniform, on the ground that the act in question provides a different method of proceedings and practice in the institution and trial of a case in a superior court from that provided by general law, differing in this respect from the following (among other) general laws: ‘All suits in the superior courts shall be by petition to the court. To every petition the clerk shall annex a process requiring the appearance of the defendant at the return term of the court. All suits must be filed with the clerk at least twenty days before the return term thereof. Process returnable to said superior courts must be served upon the defendant at least fifteen days before the return term. No trial in any civil case shall be had at the first term.’ ?”</p>

Questions of constitutional law; from Court of Appeals. 4035.

<p>Temporary alimony, etc. Before Judge Worrill. Kandolph superior court. February 24, 1912.</p>

<p>Partition. Before Judge J. B. Park. Jones superior court. April 21, 1911.</p> <p>Mattie Huffman and others filed their petition for partition of certain real estate, naming Mrs. Nannie L. Duke as defendant. The case was submitted to the presiding judge on an agreed statement of facts, in substance as follows: In 1872 Thad 6-. Holt Sr. executed a deed of conveyance to my wife Nancy, and to my daughter, Ellen, to the property hereinafter described, on the considerations and with the reservations and conditions and limitations herein set forth.” It recited a consideration of love and affection for his wife and daughter and a desire to save them the expense, trouble, and annoyance of administering on 'his estate after his death. It conveyed to his wife a house and lot where he resided, a farm containing 1,300 acres, another lot containing 90 acres, and certain personalty. It declared: “The above property is conveyed to and shall be for the sole and separate use of my said wife, Nancy, for and during her natural life, with the power of disposition by gift or will, to either or all of our children, in such proportions as she may deem proper.” He conveyed to his daughter a plantation containing 600 acres and certain shares of stock. The deed then contained the following: “This property is conveyed to my daughter, deed shall be held for her sole and separate use for and during her natural life, and after death, to her children, or the representatives of' children, living at the time of her death, and if she shall die without children, or the representatives of children, then living, said property is conveyed to her brother or brothers, and their children surviving. So likewise if .my wife shall die without having disposed, by gift or will, of the property conveyed to her, the same is hereby conveyed to our children and the representatives of our children, in equal parts, then living.” The grantor reserved to himself a use for life and a right to change the investment, if he should deem it best. Finally he constituted himself trustee for his wife and daughter. At the time of the making of the deed the grantor had living his daughter, Ellen, and two sons, Allen and Thad Jr. They died during the lifetime of the daughter. Allen left six children, who are still living. Thad Jr. left one child, now Mrs. Nannie L. Duke. When the deed was executed Allen had two children. Four others were born to him thereafter. Nannie L. Duke was living when the deed was made. The grantor’s daughter, Ellen, died without children or representatives of children.</p> <p>The presiding judge held that the children of the deceased brothers of the grantor’s daughter took per capita and not per stirpes, and that the land should be sold and the proceeds distributed accordingly. Mrs. Duke excepted.</p>

<p>Action for damages. Before Judge Gilbert. Marion superior court. January 10, 1911.</p> <p>J. M. Pickett brought suit against the Central of Georgia Railway Company, to recover damages for a personal injury. He claimed that while he was alighting from a train of the defendant the engineer caused it to move forward suddenly and without warning, throwing him down and injuring him. The place where the injury occurred was not immediately at the station which was Ms point of destination, but at a point a short distance before reaching it, and where the train, which was composed of freight-ears and passenger-cars, stopped to shift a freight-car on to a siding. The plaintiff testified, “I thought it had stopped for me to get off. I have got off there a thousand times.” And again, “They had been in the habit of stopping for people to get off right where I got off at.” The conductor testified, “The rule is to call station when you stop at a station. We did not call it when we stopped at the switch, because we did not stop there for passengers to get off.” The jury found for the defendant. The plaintiff moved for a new trial on the following among other grounds:</p> <p>(1) Because the court refused to allow a witness for the plaintiff to answer the question, “What is the custom of stopping that train there, when there is a long freight-train, for passengers to get off?” The jury were caused to retire, and the witness stated that he would testify as follows: “I got off there going this way very frequently, and going from Columbus also. There is a very heavy grade from Kinchafoonee creek, about a mile and a half above there to this place, just about all they can pull; and almost invariably the conductor requests, if they have got any freight to set or any cars, they request when they stop there that the passengers get off. Now when there is no freight to stop there, they pull up till the passenger-ear gets up even with the station or by the road. There is a road crossing just west of there just right at it. If the engine has got to stop there to leave any freight-ear or any freight, I don’t think I ever came in my life but that the conductor requested that we get off down near that little trestle. The grade is so heavy, if they have to leave a car or reduce freight and then pull up to stop for passengers to get off, it would make a considerable delay, because the grade coming this way is so heavy. When they go the other way it is a down grade. I don’t think I ever got off at the station in my life, when they left any freight there, but what the conductors would request us to get off down there; and that is right close to a little trestle just beyond the station from here, and it was their custom, whenever they had freight to put ‘off, to let them get off down there.” The court rejected this evidence.</p> <p>(2) Because the court charged as follows: “The plaintiff in this ease claims general damages for pain and suffering and for injuries alleged to have [been] done him by the defendant. General damages are such that the law presumes to flow from any tortious acts, and may be recovered without proof of any amount. Damages are given as compensation for injury done, and generally this is the measure where the injury is of a character capáble of being estimated in money. If the injury is small, or the mitigating circumstances be slight [?], nominal damages only are given. There is no fixed rule by which the jury must be governed in estimating damages for personal injuries, permanent injuries, nor pain and suffering. The amount of such general damages is for the enlightened conscience of an impartial jury. You must determine, of course, first, whether there has been any permanent injuries, or general damages. You must determine whether or not there has been any pain and suffering; and in order to determine that, you must, look to the evidence and see what was done, and you must draw your conclusions from the facts established by the evidence. If you find that there has been no such damage, then the rules of law that I have given you would apply, and if there has been none such, there can be no recovery; in other words, if no injury has been done, no permanent injury has occurred, then no damage could be awarded to the plaintiff.”</p> <p>(3) Because the court charged as follows: “Gentlemen,- if both parties were equally negligent, then the plaintiff can not recover, .and you would have to find a verdict for the defendant in the ease.. In other words, where both parties are negligent, in order for the plaintiff to recover at all, the defendant company, the railroad company, must be guilty of greater negligence than the plaintiff.”</p> <p>The motion was overruled, and the plaintiff excepted.</p>

<p>1. The evidence for the plaintiff examined and found sufficient to withstand a motion for a nonsuit.</p> <p>2. An express dedication to a municipality of a particularly described parcel of land for use as a public street may be made by parol.</p> <p>3. Where the confines of the land dedicated to a municipality for use as a street are definitely fixed by the dedicator in his offer of dedication, municipal acceptance of the whole may be implied from improvements or repairs done on a portion of the street by the municipality in recognition of the dedication.</p> <p>4. Inasmuch as an acceptance of the dedication of a street imposes upon the municipality duties and burdens with respect thereto, an express acceptance must'be by authorized officials or the governing body of the municipality.</p> <p>5. If an owner offers to dedicate land to a municipality for a public street on condition that the whole parcel defined by him must be opened by the grading of the entire width of the street, and by removing all obstructions therefrom, acts done by the municipality from which an acceptance will be implied must be in compliance with the prescribed condition. But if the intent of the dedicator be to dedicate a street of specified dimension to be opened up by the municipality, and the street is opened up by the municipality so as to meet the exigencies of safe and convenient travel, such acts by the municipality would be sufficient to indicate acceptance of all the land which was dedicated for use as a street.</p> <p>6. On an issue whether an owner of land had dedicated a certain street, his deed describing the land as .bounded by the street which he intended to dedicate for public use is relevant evidence.</p> <p>7. On the issue of whether or not an owner of land had dedicated a street to a municipality and marked it out, testimony that the defendant, who was the grantee of the alleged dedicator, and a citizen of the municipality several years after the alleged dedication, shortly before the trial measured the width of the street, iá irrelevant.</p> <p>8. It was error to charge that “most of the evidence only indirectly bears upon the issues of the ease.”</p>

<p>Claim. Before Judge Bell. Fulton superior court. May 2'5, 1911.</p>

<p>In a contest between a father and mother over the custody of their only child, a boy four and one half years old, where it appears that the mother voluntarily separated herself from her husband, whose conduct towards her was kind and considerate, and where the evidence is uncontradicted that the father is a man of high character and financially able and willing to care for and educate the child, and is a proper and fit person to raise him, and the evidence preponderates that it will be to the best interest of the child that he be intrusted with the father, it is an abuse of discretion to refuse to award the custody of the child to the father.</p>

Action for breach, of contract-. Before Judge Hammond. Columbia superior court.

<p>1. A portion of a statute held to be unconstitutional can not operate to engraft by implication into the valid part thereof a grant of power to exercise the right of eminent domain, not conferred by the latter standing alone.</p> <p>2. A power in a municipal charter “to lay off, to open and lay cut such new streets in said town as the public interest may require,” without any express authority being given to take private property for such purposes, or any provision which would imply the grant of a power of condemnation, gives to the municipality no'right to condemn private property for the purpose of opening a new street.</p>

<p>Equitable petition Before Judge Charlton. Chatham superior court. April 25, 1911.</p>

<p>It is no defense to a trover suit that the plaintiff acquired title from former owner of the chattel in fraud of the rights of the wife of such former owner, where the defendant is not a privy of the person alleged to have been defrauded.</p>

<p>Lieu foreclosure. Before Judge Brand. Walton superior court. April 29, 1911.</p>

<p>■ Temporary alimony, etc. Before Judge Brand. Gwinnett superior court. December 8, 1911.</p>

<p>Appeal. Before Judge Boañ. Campbell superior court. February 18, 1911.</p>

<p>Petition for injunction. Before Judge Thomas. Lowndes superior court. November 6, 1911.</p>

<p>Equitable petition. Before Judge Sheppard. Tattnall superior court. April 5, 1911.</p>

<p>The evidence amply supports the verdict; the case was fairly submitted under the charge, which was free from substantial error, and no reason appears for a reversal.</p>

<p>Under the contract between the client and attorneys, and the admitted facts, the court erred in making the rule absolute against the attorneys.</p>

<p>1. A bond for title contained the usual formal parts and the recital that “The condition of the obligation is such that whereas the above bound [obligor] has this day agreed to sell the said [obligee] a certain tract or parcel of land lying and being in the 1397th and 562nd dists. G. M., and bounded as follows: [by lands of coterminous owners], containing 242-1/2 acres, at $12.50 an acre, and known as the W. C. Williams place, for the sum of $3,031.25, and has given -his promissory notes dated Sept. 4th, 1906, and due as follows:” the dates upon which the notes fell due being set forth. In defense to a suit on the notes, the obligee in the bond pleaded that there was a deficiency in the acreage, and that the land described by boundaries contained 18-7/8 acres less than had been represented by the agent of the vendor that it contained, and asked a proportional abatement of the purchase-price represented by the promissory notes sued on. The plaintiff, the administrator of the obligor named in the bond for title, contended that the sale of the land was by the tract and not by the acre. Held, construing the entire instrument, that the sale was by the acre; and that being true, the defendant was entitled to a proportional abatement of the purchase-price.</p> <p>2. There was no error in the charge of the court complained of.</p>

<p>Complaint. Before Judge Meadow. Elbert superior court. April 29, 1911.</p>

<p>Petition for mandamus; from Fulton superior court.</p>

Complaint for land. Before Judge Bawlings. Jenkins superior court. July 25, 1911. The petition, as amended, of Mattie. A. Jones, James H. Anderson, and Howard Anderson, shows substantially the following: They are the surviving children of Susan J. Anderson, deceased, and bring their action against John Brady and others to recover a certain tract of land in Jenkins county, containing 262-1/2 acres, more or less.

Ejectment. Before. Judge Gilbert. Harris superior court. April 11, 1911. An action of ejectment in the common-law form was brought against Charles J. Swift, demises being laid from J. C. Beid, J. A. Reid, William C. McFarland, and Franklin Nevius.

Attachment. Before Judge Worrill. Early superior court. January 3, 1911. J. S. Cowart brought suit by attachment against the W. E. Cold-well Company. As amended, the declaration alleged in substance as follows: On July 16, 1906, the plaintiff sold to T. A. Bailey all the cypress and hardwood timber suitable for sawmill purposes, located upon certain land, for the sum of $2,000, for which credit was extended.

<p>Complaint. Before Judge Whipple. Wilcox superior court. March 20, 1911.</p>

<p>Equitable petition. Before Judge Bell. Eulton superior court. April 29, 1911.</p>

<p>From Montgomery superior court. Motion to dismiss.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. July 6, 19111</p>

<p>Claim. Before Judge Brand. Clarke superior court. July 4, 1911.</p>

<p>Indictment for murder. Before Judge Worrill. Early superior court. March 6, 1912.</p>

<p>Indictment for murder. Before Judge Charlton. Chatham superior court. April 10, 1912.</p>

<p>Indictment for murder. Before Judge Thomas. Fulton superior court. March 4, 1912.</p>

Indictment for murder. Before Judge Rawlings. Jefferson superior court. March 22, 1912. Will Thompson was tried and convicted of murder, without recommendation.

<p>Indictment for murder. Before Judge Jones. Habersham superior court. April 13, 1912.</p>

<p>Action for damages. Before Judge Daniel. Monroe superior court. April 8, 1911.</p>

<p>I. Where a railroad company permitted shippers and consignees to use a driveway in. its yard for the purpose of loading and unloading cars, and a foreman or a person who had cars to unload, while engaged in the performance of his duties, hitched a horse to one of the cars and left it standing and eating feed which had been given it, if the horse kicked a mule of another shipper which was driven behind it, this did not make out a prima facie case for recovery, without proof of viciousness and scienter, although the railroad company had given no permission to feed horses in that place.</p>

Action for breach of contract. Before Judge Ellis. Fulton superior court. March 2, 1911. D. Y. Thompson brought suit against the Buick Motor Company. The petition contained two counts. The first alleged substantially as follows: The defendant entered into a contract with the plaintiff, of which a copy was attached to the petition.

Exceptions to auditor’s report. Before Judge Bell. Eulton superior court.

<p>Complaint. Before Judge Pendleton. Pulton superior court. June 9, 1911.</p>

<p>Complaint.. Before Judge Littlejohn. Schley superior court. April 10, 1911.</p>

<p>Equitable petition. Before Judge Boan. Newton superior court. July 8, 1911.</p>

<p>Equitable petition. Before Judge Walker. Washington superior court. March 10, 1911.</p> <p>Isabella J. Brooks, Ella Nora Brooks, and Leon Brooks filed their petition against Charles G. Eawlings, and alleged as follows: They were owners, as tenants in common, of two tracts of land. They owed money to various .persons, including the defendant, and were being sued by some of their creditors. They appealed to the defendant for a loan sufficient to pay off their debts. . He agreed to make the loan, but informed plaintiffs that it would be necessary for them to execute and deliver to him an absolute deed to the lands before he would be authorized to take possession, rent the lands, collect the rents, and apply the proceeds arising from the sale of such rents to the payment of the money which he was going to advance to them to pay off and discharge their several debts hereinbefore referred to. He declared he would not be able to rent the lands without such absolute deed. He proposed to'hold said lands until the rents had fully paid the loan, and then would surrender possession of the land to them. He also agreed that they should have the right to pay him up at any time, with eight per cent, interest. He proposed to prepare the necessary papers to evidence and carry out the above-stated contract between them. He professed great friendship for the plaintiffs on account of his friendship for their father, and said that he would treat them fairly and properly in the matter. They accepted his proposition and agreed to the foregoing terms; they were unlearned in legal matters, acted without the advice of counsel or others skilled in such matters, and left to Eawlings the preparation of the necessary papers to carry out their contract. They believed he was their friend, and did not believe he was seeking any advantage of them. On February 21, 1908, he had them to execute and deliver to him an absolute deed to said lands; and they permitted their tenants to attorn to Eawlings. At this time they had already rented the lands for 1908 for eight bales of cotton. In the fall of 1908 Eawlings collected fhese rents of the value of $400. He received the rents for 1909 of the value of- $500, and will reeeive the rents for 1910 of the same value. At the time they made their deed the lands were worth $3,000 — much more than the money borrowed from Eawlings. Their deed purports to be upon a consideration of $1,861, but Eawlings paid out for them only $972.92, besides some interest. After getting said deed from them, and after haring gotten possession of the land, Rawlings began to assert that he bought said lands from them, and he now asserts that he is the absolute owner thereof. He procured said deed from them fraudulently, by taking advantage of their ignorance and of the confidence reposed in him by them, and by pretending that it was necessary for him to have. an absolute deed and possession of said lands in order that he might be able to rent them out, receive the rents, and apply the same to the payment of the money which he would advance to pay off their debts. It was his intention and scheme to get an absolute deed from them, and have them surrender possession of the lands to him, that he might wrongfully and fraudulently assert that he was the absolute owner of said property. As soon as they discovered that he claimed to be the owner of said lands, they offered to pay him back all the money he had paid out for them on their debts, to him and to other creditors, and redeem said lands. They asked Rawlings to come to an accounting with them for the rents he had received. This he refused to do, asserting that he was the owner of said lands and that they had no title to or interest therein. They offered to tender to Rawlings whatever amount might be due him on an accounting. The deed to Rawlings does not speak the real contract. Said deed was only made for the purpose of securing him for the money advanced to them, and to permit him to collect the rents and apply the same to the discharge of their indebtedness, etc. They prayed, that the deed be declared to be simply a security deed, and that the same be so reformed as to speak the true contract and agreement between them and Rawlings; that an accounting be had between them; that the amount of money advanced by Rawlings for them be ascertained; that the amount of rents received by him be fixed; and that they be permitted to redeem said lands.</p> <p>The defendant demurred to this petition. The demurrer was overruled, but no exception was taken to this judgment. The defendant answered, denying the material allegations of the petition, and also the right of the plaintiffs to make a tender. Plaintiffs introduced testimony which supported their petition substantially as laid. ■ At the conclusion thereof the defendant moved for a nonsuit. The court sustained the motion, and the plaintiffs excepted.</p>

<p>1. The court erred in granting a nonsuit in this ease.</p> <p>2. Even if the condition printed upon a telegraphic blank, stating that a telegraph company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission, be valid and binding, still if the suit for the recovery of the penalty provided for in sections 2812 and 2813 of the Civil Code is brought within sixty days after the message is filed with the company for transmission, no other or further presentation of the claim is necessary.</p>

<p>Motion to set aside judgment. Before Judge Eelton. Bibb superior court. May 4, 1911.</p>

<p>Appeal. Before Judge Jones. Hall superior court. March 13, 1911.</p>

<p>Motion for new trial. Before Judge Felton. Bibb superior court. July 13, 1911.</p>

<p>An owner of an Undivided interest in land was induced to sell the samé at a gross undervalue on the false representation of the purchaser that he had been advised that the title was not good, and that the land was barren and of little value, whereas the title was good and the land was very valuable because of its marble deposit; and ten years thereafter instituted an equitable action to rescind the sale. As excusing his delay he alleged, that he had no reason to suspect the untruthfulness of the representations; that he lived more than 140 miles away; that the cost of investigation would have exceeded the purchase-price, and that an investigation would not have revealed a marble deposit on the land, and that he had no knowledge of the fraud complained of until three years before bringing suit. Held, that the plaintiff’s voluntary failure to bring suit for three years after being fully cognizant of the fraud, committed seven years before that time, is such laches as will bar him of his action. '' ' ' ’</p>

<p>Action for damages. Before Judge Fite. Gordon superior court. July 8, 1911.</p>

<p>Actions for damages. Before Judge Fite. Dade superior court. February 6, 1911.</p>

<p>Equitable petition. Before Judge Edwards. Polk superior court. June 20, 1911.</p> <p>The only party named as a defendant residing in the county where the suit was brought was Mrs. Crumbly. The relief prayed was, that two deeds be declared forged and fraudulent, that they be canceled as a cloud on the plaintiff’s title, in so far as they purported to convey any interest in lot 250, and that the plaintiff be decreed to have the true title to the entire mineual interest in that lot. One of these deeds appeared to be from John C. Merritt to Thomas W. Mitchell; it was dated October 27. 1900, and recorded November 9, 1901. The other was from Th.omas W. Mitchell to Paul Toland, dated January 1, 1902, and recorded January 17, 1907. Each of.them purported to convey vith general warranty of title all the mineral interests and mining rights in a number of land lots, including 250. The petition alleged: that W. M. Hutchings owned and possessed this lot from some time before the year 1858 until'his death, which occurred prior to 1878; that his two children (his only heirs) took the title by inheritance and went into possession of the lot, and one of the two, on September 10, 1878, conveyed to the other (Mrs. Ann Camp) his half interest, by deed recorded; that on June 16, 1897, Mrs. Ann Camp conveyed with warranty to John C. Merritt a half interest in the iron and manganese ore on the lot, with mining privileges; .that on August 8, 1903, Mrs. Ann Camp conveyed by warranty deed to the plaintiff the fee in the lot, except the half mineral interest she had already conveyed; that John C. Merritt died prior to November, 1905, and soon thereafter his widow died, their only heirs being Mrs. Crumbly and John P. Merritt, who (there being no administration and no necessity for any) took possession of the interest owned by John C. Merritt, and on November 6, 1905, they conveyed to the plaintiff the half interest in the iron and manganese ore in the lot, with “warranty of title limited as against themselves and their lawful heirs only;” and that the plaintiff went into and remained in open, adverse possession of the lot under the conveyances to him. All the deeds mentioned were recorded. Among several grounds of demurrer was the one mentioned in the headnote.</p>

<p>From Haralson superior court.</p>

<p>1. Under the evidence in the case the court did not err in refusing to charge upon the subject of voluntary or involuntary manslaughter.</p> <p>2. The court gave to the jury the following charge: “If you should find, for instance, in this case that these defendants, or either of them, if they were acting jointly, delivered upon the person named in the indictment a blow with a deadly weapon which produced death, and there was no provocation, no sufficient provocation, provocation sufficient enough to reduce it to some other offense, nor justification, and the person named in the indictment died in consequence of that blow, delivered under those circumstances by that character of weapon, that, under the law of Georgia, would be murder.” This does not afford the defendant ground for a new trial; although, in view of the ruling above made that neither the law of voluntary nor involuntary manslaughter was involved in the case, the instruction just quoted is somewhat inapt, because it embodies the unnecessary expression “provocatiqn sufficient enough to reduce it to some other offense.”</p> <p>3. It is unnecessary to pass upon the exception relative to the alleged disqualification of a named juror.</p> <p>4. The court erred in admitting, over objection duly made, evidence of the character of the decedent for peaceableness, no evidence having been introduced by the defendant on trial putting the decedent’s character in issue.</p>

<p>From Floyd superior court. Motion tó dismiss.</p>

<p>1. Mandamus will not lie as a remedy to compel a sheriff to accept an affidavit of illegality filed to an execution issued by the comptroller-general against a tax-collector in default and his bondsmen, and levied on the property of one of the alleged bondsmen, who avers in his affidavit of illegality that he did not sign the tax-collector’s bond, or authorize any one else to do so for him,</p> <p>2. In such case, an equitable petition for injunction is an available remedy when filed by a bondsman.</p>

<p>Claim. Before Judge Edwards. Haralson superior court. March 16, 1911.</p>

<p>Complaint for land. Before Judge J. B. Park. Baldwin superior court. May 1, 1911.</p>

<p>Claim. Before Judge Littlejohn. Sumter superior court. August 21, 1911.</p>

<p>Injunction. Before Judge Thomas. Berrien superior court August 16, 1911.</p>

<p>Indictment for murder. Before Judge Littlejohn. Stewart superior court. May 20, 1912.</p>

<p>Mandamus. Before Judge Littlejohn. Sumter superior court. January 29, 1912.</p>

<p>1. By section 2798 of the Civil Code, the court of the county in which a contract is to be performed has jurisdiction of a suit brought to recover damages by one railroad company against another such company, alleging a breach of such contract.</p> <p>2. Where the stockholders of a railroad corporation authorize its board of ' directors to “purchase, absorb, and merge into itself the stock, property, assets, etc.,” of another designated railroad corporation, which is done accordingly, and by the terms of a contract entered into by the acquired railroad, prior to its acquisition by the other corporation, it is provided that “all covenants and agreements herein contained shall be binding upon the successors and assigns of the parties hereto,” the acquisition of the one railroad corporation by the other constitutes a merger and not a sale.</p> <p>(a) The acquiring corporation by reason of the merger becomes liable for the payment of all unpaid debts and unperformed contracts of the acquired corporation, and is bound by the terms of the contract entered into between the latter and another corporation prior to the merger.</p> <p>3. The verdict was demanded by the evidence, and the court did not erf, under the facts of this case, in directing a verdict for the plaintiff.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. March 27, 1911.</p>

<p>1. A'father is entitled, prima facie, to the control of his minor child.</p> <p>(a) But parental power may be lost “by voluntary contract, releasing the right to a third person,” or “by failure of the father to provide necessaries for his child.”</p> <p>(&) A contract releasing the right of parental power over a child must be clear,, definite, and certain.</p> <p>2. Where a father, a few days after the death of his wife, voluntarily told the great-grandfather of his child, three days old, that he might take and keep the child as long as he and his wife lived, or until the child was twenty-one years old, and the great-grandparent did take, keep, maintain, and protect it until it was abducted by the father, at three years of age, this was a voluntary contract on the part of the father releasing his right to the child to a third person, and it was sufficiently definite and certain to be enforced.</p> <p>(а) In such a case the contract is not void as being unilateral.</p> <p>(б) Nor is it void and unenforceable for want of consideration.</p> <p>(o) The evidence is amply sufficient to support the finding in this ease.</p> <p>3. In a habeas-corpus proceeding by a great-grandfather to recover possession of a child alleged to have been given to him by its father, and also alleged to have been abducted from him by the father, it was not reversible error for the court, pendente lite, to award the temporary custody of the child to the grandparent from whom it had been so taken, upon his giving bond for its production in court, where it appears that the final judgment was right.</p> <p>4. As strict technical pleadings are not required in habeas-corpus proceedings as in some others.</p> <p>(a) Judges of the superior court are vested with large discretion in habeas-corpus cases, and their judgment in such cases on questions of law and fact will not be interfered with by this court, unless manifestly abused.</p> <p>(5) The court below did not abuse its discretion in this case.</p> <p>5. The other grounds of error assigned are without merit.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. June 8, 1911.</p>

Indictment for rape. Before Judge Hawkins. Laurens superior court. April 16, 1912. General Washington was indicted in Laurens county for the crime of rape, alleged to have been committed on the person of Ada Wright. Both were persons of color, and there was no evidence as to difference in their social standing. The jury convicted the accused, and recommended him to the mercy of the court. A motion for new trial was made, which was afterwards amended.

<p>Indictment for rape. Before Judge Hawkins. Laurens superior court. April 16, 1912.</p> <p>General Washington was indicted in Laurens county for the crime of rape, alleged to have been committed on the person of Ada Wright. Both were persons of color, and there was no evidence as to difference in their social standing. The jury convicted the accused, and recommended him to the mercy of the court. A motion for new trial was made, which was afterwards amended. On the hearing the judge overruled the motion and refused a new trial. The defendant excepted.</p>

<p>1. In an action brought by a mother for the homicide of her son, where the original petition alleged in substance that the son contributed to her support, it was amendable by alleging that she was also dependent upon him for support. Ellison v. Georgia Railroad Go., 87 Ga. 691 (13 S. E. 809).</p> <p>2. Where, under the provisions of the Civil Code, § 5910 et seq., depositions of a witness are taken for use in a case pending, at the trial of such case the depositions so taken may, in the discretion of the court, be read in evidence, notwithstanding the presence of the witness at the trial. Western cG Atlantic Railroad Go. v. Bussey, 95 Ga. 584 (23 S. E. 207).</p> <p>3. One ground of the motion for new trial was, that, after the engineer of the train which killed the plaintiff’s son had testified as to his experience as a locomotive engineer, and as to his observation as to the “way a moving train will pull a person,” the court refused to permit the witness to testify as to “the manner in which a train in forward motion will pull or jerk such person catching hold of the same.” As it does not appear from the ground of the motion what would have been the testimony of the witness on the point had he been permitted to testify) no point is presented for decision.</p> <p>4. Inasmuch as this court holds that the plaintiff made out no case authorizing a recovery, considering the depositions to which objections were made along with other evidence in the case, it is unnecessary to discuss points raised in regard to their admissibility, especially in view of the peculiar facts and circumstances under which the objection and motion to exclude were made and the time of the making thereof, a situation which is not likely to arise again. If the depositions should be offered in evidence upon another trial, such proper objections as may be raised to them can then be passed upon, not complicated by the peculiar circumstances under which the ruling was made at the last trial.</p> <p>5. Where one knowingly and voluntarily takes a risk of physical injury the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, damages resulting from a hurt thus occasioned are not recoverable, although the same may be in part attributable to the negligence of the defendant.</p>

<p>Action for damages. Before judge Thomas. Berrien superior court. January special term, 1911.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. January 14, 1911.</p>

<p>1. Where, under a contract for the rental of certain premises for a term of three years, the landlord was not required to rebuild in case of destruction of or damage to the building upon the property by reason of fire, but there was a stipulation, that, “should the premises be destroyed or damaged by fire so as to be untenantable, the conditions of this lease shall cease from the date of the fire until the premises shall be restored to as good condition as they were in previous to the fire;” and where during the term a fire occurred causing a large portion of the premises to be untenantable, but the tenant refused either to deliver possession or pay rent, ,though continuing to use a portion of the property, under a statutory proceeding to dispossess him, to which he interposed a counter-affidavit, he was liable for double rent.</p> <p>2. Under such facts the tenant was liable for double the contractual rate of rental, and could not reduce such amount by showing that after the fire the value of the premises for rent was much less than before.</p> <p>3. None of the rulings in regard to rejecting evidence require a new trial.</p> <p>4. Under the proceeding authorized by the Civil Code, §§ 5385 et seq., double x-ent can not be recovered from a tenant prior to demand for possession; nor is such actioix an appropriate one for the recovery of rent due under the contract prior to such demand.</p> <p>(a) It not clearly appearing how long before the commencement of the proceeding demand for possession was made, it is directed that if, within twenty days from the filing of the remittitur in the office of the clerk of the superior court, the plaintiffs will write off from verdict and judgment $400, to cover the double rent included therein prior to the beginning of the action, the judgment will stand affixmed; otherwise it will be reversed.</p>

<p>Equitable petition. Before Judge Pendleton. Pulton superior court. May 24, 1911.</p>

<p>Complaint for land. Before Judge Bawlings. Toombs superior court. February '21, 1911.</p>

<p>Complaint. Before Judge Rawlings. Jefferson superior court. March 6, 1911.</p>

<p>Complaint for land. Before Judge Bawlings. Emanuel superior court. April 10, 1911.</p>

<p>1. Where an ordinary was disqualified from presiding in a proceeding to probate a will, on account of relationship to some of the parties, and called in the ordinary of an adjoining county, who presided in his stead, a judgment rendered by the latter was not void, although the disqualification was not entered on the record.</p> <p>2. Upon objection being made to the admission in evidence of a certified copy of the record in such case, on the ground that the ordinary of the county other than that where the case was pending was without jurisdiction, there was no error in admitting parol evidence of the disqualification, and the consequent request for the other ordinary to preside, and thereupon allowing the certified transcript to be introduced.</p> <p>3. It was error to charge: “I charge you, on the other hand, if you find from the facts and circumstances of this case that the defendants were named as executors in the will, and that when this will was about to be set up and probated in solemn form, that there was an agreement entered into by and between all of the heirs of [the testator] that the estate should be collected and turned over to the widow, and the widow has distributed it under that agreement, then I charge you that the defendants would not be liable to the plaintiff in any amount whatever, and you should find for the defendants;” and also to charge: “On the other hand, if you find that there was an agreement entered into, whereby all the heirs consented and agreed that the estate should be collected and turned over to the widow, and by her used, and it was further agreed by the heirs, the plaintiff included, that it was to be by her used and distributed, and it has been distributed by her in pursuance of that agreement, then I charge you that the defendants would not be liable.” Such charges made the liability of the defendants depend not only upon whether such agreement as that hypothetically stated had been made, and whether the defendants had delivered the property to the widow in accordance therewith, but also upon whether it had been distributed by her in pursuance of that agreement.</p>

<p>A bona fide sale of property, not made to hinder, delay, or defraud creditors, is not rendered invalid because the vendor may have been insolvent at the time.</p>

<p>1. An owner of land conveyed it by warranty deed to bis grandson, upon the expressed consideration of natural love and affection “and in consideration of support and maintenance of the said [grantor] and his wife.” The deed contained this clause: “It is further provided herein that should the said [grantee] voluntarily refuse and fail to care for and maintain the said [grantor] and his wife, that that fact will cancel, annul, and void this deed.” Held, that the provision as to avoidance created a condition subsequent.</p> <p>2. The grantor having survived his wife, if the grantee did not comply with the condition as to maintenance, the grantor had the right to enter and repossess himself of the land, if he saw fit to do so. But he could waive such right; and if he accepted such partial support as was given as being a compliance and waived a forfeiture, after his death his administrator could not recover the land from the grantee.</p> <p>3. The exceptions as to failure to charge, in the absence of requests, are without merit.</p> <p>4. An exception that the court did not rule out certain evidence, without showing what objection was made thereto when offered, furnishes no ground for reversal.</p> <p>5. Where a deed was made which contained the provision stated in the first headnote above, and after the death of the grantor his administrator filed a petition against the grantee, alleging that the latter had voluntarily failed and refused to care for and maintain the grantor and his wife, and seeking to have the deed canceled and to recover possession of • the premises with mesne profits and damages on account of the cutting and removing of timber therefrom, the grantee was not a competent witness to testify as to what care and maintenance he had furnished to the grantor.</p>

<p>A defendant in a bail-trover proceeding, who is in the actual custody of tlie sheriff, though not confined in jail, is “held in imprisonment,” and may apply, under the Civil Code, § 5154, for a discharge upon his own recognizance.</p>

<p>Indictment for murder. Before Judge Eawlings. Emanuel superior court. April 17, 1912.</p> <p>This case was before the Supreme Court on a former occasion. McNaughton v. State, 136 Ga. 600 (71 S. E. 1038). After the judgment of the Supreme Court, affirming the judgment of the superior court in refusing to grant a new trial, was made the judgment of the latter court, the plaintiff in error, at the April term, 1912, made an extraordinary motion for new trial, under the provisions of the Civil Code, § 6092, on the ground of certain evidence alleged to have been discovered after the trial, and after the original motion for new trial had been overruled, and immediately preceding the term of.court to which the motion for new trial on extraordinary grounds was filed. After considering this evidence, and other evidence offered in rebuttal by the State, the court overruled the motion and refused to grant a new trial. The movant excepted.</p>

<p>Indictment for murder. Before Judge Roan. Newton superior court. May 11, 1912.</p> <p>Jim Kimbrell was indicted for the murder of Jim McCart by shooting him with a pistol. On the trial the jury convicted the accused and recommended him to the mercy of the court. A motion for new trial was made, and afterwards amended. .On the hearing the motion was overruled, and a new trial refused. The defendant excepted.</p>

<p>Action for damages. Before Judge Freeman. Meriwether superior court. September 1, 1911.</p>

<p>Money rule. Before Judge Daniel. Upson superior court. December 18, 1911.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. March 18, 1912.</p>

<p>Complaint.- Before Judge Felton. Crawford superior court. November 27, 1911.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. March 18, 1912.</p>

<p>Petition for injunction. Before Judge Fite. Dade superior court. March 20, 1912.</p>

Action for damages. Before Judge J. B. Park. Baldwin superior court. February 14, 1911. The Central of Georgia Railway Company brought suit against the Milledgeville Railway Company for damages to two freight-cars by fire. By consent of the parties the case was tried before the judge, without the intervention of a jury, upon the following agreed statement of facts, with the right by either party to except to the decision of the judge: “1.

Questions of law; from Court of Appeals. 3225. The Court of Appeals certified the following questions: “1. Upon the facts hereinafter stated, is the plaintiff entitled to recover; and if so, should his recovery be limited to $50, or can he recover the actual value of the goods lost?

<p>Action for damages. Before Judge Bell. Fulton superior court. May 17, 1911.</p>

<p>1. A cotenant acting in good faith and for the purpose "of honestly bettering the property, and not for the purpose of embarrassing his co-tenants or encumbering the estate or hindering partition, will be entitled to compensation to the extent that his substantial and useful improvements have added to the value of the common property.</p> <p>2. Such claim for compensation is an equitable charge upon the land, and not a title or interest in the land.</p> <p>3. In this State a widow is only dowable in lands of which her husband died seized and possessed. Therefore the widow of an improving co-tenant is not entitled to have assigned, in addition to dower in her husband’s undivided share in the whole premises, also a dower estate in the improvements placed there by her husband, although in a partition of the premises by sale the husband would be equitably entitled to be compensated for his improvements to the extent they may have . enhanced the common property.</p>

<p>1. An oral lease not naming any term, but limited to endure until the happening of a contingency, creates a tenancy at will.</p> <p>2. If subsequently the landlord accepts from the tenant the latter’s rent note for a definite term, containing a complete and certain agreement for the rent of the same land, and embracing covenants not included in the oral lease, the prior oral contract will be presumed to have been superseded and merged into the writing.</p> <p>3. There was evidence authorizing an inference that the landlord had contracted for the rent of the land for the year 1912.</p> <p>4. Injunction is an available remedy to restrain a landlord from interfering with the possession of his tenant pending the tenancy, ‘where the damages are of such a nature as to be incapable of accurate computation.</p>

<p>Indictment for murder. Before Judge Meadow. Madison superior court. May 9, 1912.</p>

<p>By the Penal Code, § 824, grand jurors who have served at one regular term of the superior court are declared ineligible for jury duty at the next succeeding regular term.</p> <p>(а) In such a case a challenge to the array of the grand jury, made before the indictment is found, should be sustained by the trial judge.</p> <p>(б) Likewise a plea in abatement, filed after the indictment is found and before arraignment of the defendant, based on substantially the same ground, should be sustained.</p>

<p>'Action for breach of contract. Before Judge J. B. Park. Baldwin superior court. May 1, 1911.</p>

<p>Injunction. Before Judge Sheppard. Tattnall superior court.August 3, 1911.</p>

<p>1. Where the payees in a promissory note payable .to.order wrote on the back of it the words, “ Eor value received, we hereby warrant the makers of this note financially good on execution,” and signed their names after such entry, and negotiated and delivered the note for value, such indorsement was sufficient to transfer title to the note; and if made before maturity to a bona fide purchaser for value, without notice of any defense, he would be protected from any defenses which the maker might have, except those expressly allowed by statute.</p> <p>2. Where the holders of such a note so indorsed brought suit upon it against the makers, and alleged that they bought it from the payees for value, before due, and without notice of any defense, and the defendants made no denial of such allegation, but sought to set up certain defenses which would not be good against a negotiable note in the hands of an indorsee before due, for value, and without notice of any defense, there was no error in striking the answer and directing a verdict for the plaintiffs, upon the introduction of evidence.</p> <p>(a) No question was raised as to whether a verdict should have been taken, or a judgment entered without a verdict.</p>

<p>1. One who is clerk and general manager of a mercantile firm may, if authorized by the firm, sign notes to creditors of the firm in the firm name, binding the latter to pay the sum of money specified therein.</p> <p>(а) But where such notes contain a waiver of homestead, such waiver is not binding upon the partnership, or the individual members composing the same, unless such clerk or general manager has express authority to make such waiver. The right of homestead is personal to the debtoi', and no one can waive the right for him without his consent.</p> <p>(б) Such a waiver of homestead, even if authorized by the firm, or by the individual members thereof, is not good'as a matter of contract merely, or per se, as against a claim filed under a homestead to realty set apart to one of the members of the partnership by the United States court of bankruptcy.</p> <p>(c) Partners in a mercantile firm are mutual agents for each other with reference to the conduct of the mercantile business in which they are engaged, and by virtue of this relation can give a firm note for the firm debt. -</p> <p>'(d) Each partner can waive the homestead for himself and for his partner as to personal property belonging to the firm.</p> <p>¡(e) But one partner can not, by signing a note given to a creditor for a firm debt, waive the homestead as to real estate belonging to another partner, or authorize any one else to do so,-without express authority from the other partner.</p> <p>2. One member of a partnership against which, and against each member individually composing the firm, an execution has been issued in favor of a judgment creditor, and levied upon land belonging to one of the members of the firm individually, is not estopped from setting up a claim under a homestead in said land, as the head of a family, where it does not appear that on the trial of the case in which the judgment was rendered the question of waiver of homestead in the notes sued on was adjudicated.</p> <p>(а) Nor would such claimant be estopped from setting up such claim because of a former verdict and judgment of the superior court, finding the same property subject to the same fi. fa., in a ease where the claimant’s wife had filed a claim thereto, to which ease he was not a party.</p> <p>(б) Where a former adjudication of the superior court is relied upon to 'work an estoppel against one who claims real estate, as head of a family, as being exempt from levy and sale under the homestead laws of this State, the former judgment must relate to the same question as the one on the subsequent trial, and must cleai'ly decide it, and can not be collaterally or incidentally considered for that purpose.</p> <p>(c) A note, purporting to be signed by a firm to a creditor, to cover an\ amount due by the former to the latter, stated the sum to be paid, and contained a waiver of homestead. Suit was brought on the note, and each member of the firm was served with a copy of the suit, including a copy of the note containing the homestead waiver. Neither partner filed any defense to the suit. No reference to the waiver of homestead was made in the pleadings, other than that the copy of the note attached to the petition contained the clause as to the homestead waiver. The judgment of the court made no reference to the waiver. It simply adjudged the amount due to the plaintiff by the defendant firm. Held, that that judgment adjudicated only the sum due by the defendant to( the plaintiff.</p> <p>(d) The judgment did not adjudicate that the firm or either member of it individually had waived homestead to realty owned by the firm, as against the payment of the firm debt.</p> <p>(e) Such judgment would not estop one member of the firm from setting up a claim, under a homestead set apart to him as head of a family, to land levied upon by virtue of a fi. fa. issued in pursuance of such judgment.</p> <p>(f) The court erred in refusing to grant a new trial.</p>

<p>Section 1 of the act of August 15th, 1903 (Acts 1903, p. 90, Penal Code, § 715), provides: “If any person shall contract with another to perform for him services of any kind, with intent to procure money or other thing of value thereby, and not to perform the service contracted for, to the loss and damage of the hirer, or, after having so contracted, shall procure from the hirer money, or other thing of value, with intent not to perform such service, to 'the loss and damage of the hirer, he shall be deemed a common cheat and swindler, and upon conviction shall be punished as for a misdemeanor.” Section 2 of the same act (Penal Code, § 716) provides: “Satisfactory proof of the contract, the procuring thereon of money or other thing of value, the failure to perform the services so contracted for, or failure to return the money so advanced with interest thereon at the time said labor was to be performed, without good and sufficient cause, and loss or damage to the hirer, shall be deemed presumptive evidence of the intent referred to in the preceding section.” Held:</p> <p>1.,Section one is to be construed as denouncing as fraudulent practices of the character therein described, and providing for the punishment of persons violating its terms, the legislative purpose being, not to punish for a mere failure to comply with the obligation, but for the procurement of money or other thing of value with the fraudulent intent not to perform the service. *</p> <p>2. Section two is merely a rule of evidence.</p> <p>3. The two sections are severable, and the first may exist independently of the latter.</p> <p>4. Under the construction above given, no part of the legislation mentioned offends against the prohibition of the thirteenth amendment to the Federal constitution against involuntary servitude except as punishment for crime whereof the party shall have been duly convicted, or against the provisions forbidding peonage, found in the United States Revised Statutes, §§ 1990, 5526, enacted to secure the enforcement of such amendment.</p> <p>5. A person on trial charged with such an offense is incompetent as a witness, but he may make such a statement before the jury as he desires, to which the jury may give such credit as in their opinion its truth entitles it to receive, even to the extent of believing it in preference to the sworn testimony.</p> <p>6. The fact that one on trial, charged with the offense provided for in this statute, can not be heard to testify as a witness in his own behalf does not affect the validity of either section of the statute.</p> <p>7. The case of Bailey v. Alabama, 219 U. S. 219, distinguished.</p>

<p>Where a contractual relation exists between the parties, such as that of bailor and bailee, so that the latter rightfully obtains possession of the property, a tort arising out of a breach of the bailee’s duty imposed by his relation, or by his express contract, may be waived by the bailor and assumpsit maintained.</p> <p>(a) The action in this ease was ex contractu, based upon an alleged refusal of the defendant compress company to deliver cotton upon demand and presentation of its receipts given therefor.</p> <p>(J) Under the facts alleged, the plaintiff had the right to sue for the benefit of the usee named.</p> <p>(e) The petition was not subject to the demurrer.</p>

Action for partition. Before Judge Frank Park. Decatur superior court. May 10, 1911. The Bank of Whigham, a corporation, instituted proceedings against F. A. Mize individually, and G. W. White as custodian in bankruptcy of Oliver & Mize (a firm of which F. A. Mize was a member), for the partition of certain described land.

<p>1. A sale by a receiver appointed by a court' is a judicial sale, and the maxim caveat emptor applies to such a sale.</p> <p>2. Where such a sale is made, equity will not set it aside at the instance of the purchaser, in the absence of fraud or mutual mistake, and where the purchaser is guilty of laches in complaining, and fails to show an ability and offer to restore the status.</p> <p>3. Under the principles announced in the preceding notes the petition was properly dismissed on demurrer.</p>

<p>Equitable petition. Before Judge Martin. Pulaski superior court. July 29, 1911.</p>

Interventions. Before Judge Hammond. Iiiehmond superior court. November'21, 1910. February 11, 1911. James Delaney brought an action of trover against the Thomas & Barton Company, to recover a piano. Affidavit was made to require bail, and the sheriff seized the property. The defendant answered, denying all the allegations of the petition, and also pleaded that it had delivered the piano to the deputy sheriff and, on his order, to the plaintiff.

<p>Attachment. Before Judge Charlton. Chatham superior court. March 22, 1911.</p>

Complaint. Before Judge Felton. Bibb superior court. April 31, 1911.

<p>1. Notwithstanding the charter of the City of Elberton (Acts 1896, p. 148) authorizes one against whom a municipal execution is being enforced by levy to make defense thereto by affidavit of illegality, a mandamus will not be granted to compel the levying officer to accept such affidavit, where the defense therein pleaded is insufficient in law.</p> <p>2. The defense alleged in the affidavit in this case is insufficient in law.</p> <p>(а) Section 17 of the charter (Acts 1896, p. 148), which provides for the assessment and valuation of property for taxation by a board of assessors, and requires notice to the taxpayer and an opportunity to be heard, and that the assessments shall be fixed according to the facts developed at such hearing, if one is had, is not unconstitutional as depriving the taxpayer of due process of law.</p> <p>(б) This section of the act is not affected by the act approved August 13, 1910 (Acts 1910, p. 22).</p> <p>(c) The payment of an amount based on the taxpayer’s valuation of his property is no bar to the collection of the remainder of his tax calculated on the valuation fixed by the assessors.</p> <p>(d) The averment in the affidavit that the tax is levied to pay in part certain alleged illegal indebtedness, without stating how much of the tax demanded is for such alleged illegal indebtedness, or facts from which the amount can be ascertained, is insufficient to form any issue between the municipality and the taxpayer as to his disputed liability for any particular sum.</p>

<p>Lien foreclosure. Before Judge Jones. Gwinnett superior court. April 29, 1911.</p>

<p>Claim. Before Judge J. B. Park. Morgan superior court. September 7, 1911.</p>

<p>Claim. Before Judge Bell. -Fulton superior court. January 26, 1911.</p>

<p>Attachment. Before Jnclge Bell. Fnlton superior court.' 22, 1911.</p>

<p>Appeal. Before Judge Roan. Clayton superior court. August 28, 1911.</p>

<p>Action for damages. Before Judge Sheppard. Effingham superior court. June 15, 1911.</p>

<p>1. “The failure of the master to instruct the servant how to perform work which any person of ordinary intelligence can perform without instructions, and the performance of which is unattended .by extraordinary hazard or danger, is not such a breach of his duty to instruct as will give a servant injured while performing the work a right of action for damages.”</p> <p>2. The duty of a master to warn his servant of dangers incident to his employment does not embrace an obligation of the master to anticipate that the servant may perform his task improperly, and to warn him of an obvious danger resultant from such improper method of performing his task.</p> <p>3. Obvious risks incident to an employment are assumed by the servant in his contract of employment.</p>

<p>1. An attorney’s lien on land is foreclosed by petition and rule issued by the court as in eases of mortgage foreclosure 011 land. Where a petition to foreclose an attorney’s lien on land, wherein it is alleged that the defendant is a resident of another county, is filed, and, instead of a rule being issued thereon in terms of the statute by the court, process is attached by the clerk, directed to all and singular the sheriffs of this State, commanding the appearance of the defendant at the next term, which petition and process are personally served on the defendant by the sheriff of the county of the defendant’s residence, such process is void because issued by one unauthorized to issue it. A judgment at a subsequent term, based on such process, where there is neither appearance nor waiver of process, is void.</p> <p>2. A proceeding to foreclose an attorney’s lien upon real property is to be brought as a proceeding to foreclose a mortgage on land, and the vénue of such proceeding is the county wherein the land lies. It is not such a civil case as must be brought in the county of the defendant’s residence.</p>

<p>A widow is entitled to a twelve months’ support out of the estate of her deceased husband, notwithstanding the fact that he left to her by will, which was probated over her caveat filed thereto, a life-estate in all his property real and personal.</p> <p>(a) In such a ease, where the caveat filed to the probate of the will and other litigation was pending for a period of three years, and the widow" during that time remained in possession of all the real estate left to her for life by the will, and collected and used the rents from the same, she can not be held to account to the executors for the rents so collected and used by her.</p> <p>(6) The rent so collected and used by the widow was hers as a matter of right, and as a part of her life-estate devised under the terms of the will of her deceased husband, and does not bar her from having a twelve months’ support set aside to her out of the realty so devised.</p> <p>(o) In such a case a widow can not be required to elect as between the life-estate in the entire property devised (together with the proceeds of the real estate she has collected and used pending a caveat filed by her to the probate of the will) and a twelve months’ support, in the absence of a manifest intention of the testator by the will to bequeath certain property in lieu of a twelve months’ support.</p>

<p>Action for damages. Before Judge Edwards. Douglas superior court. June 13, 1911.</p>

<p>1. Where creditors obtained judgments against a common debtor and had executions issued, on which entries of nulla bona were made, they could file an equitable petition against the debtor and grantees .to whom the debtor had executed a deed, attacking such conveyance as fraudulent and made to delay or defraud them and other creditors, and seeking to subject said property. Such a petition, with proper allegations, would not be demurrable on the ground that the plaintiffs had an ample common-law remedy without invoking equitable relief.</p> <p>2. Nor would it be demurrable on the ground that there was a misjoinder of plaintiff's, in that several judgment creditors of the same debtor joined therein.</p> <p>3. Nor on the ground that a judgment held by one of the plaintiffs was against the common debtor and also against her husband, who was alleged to be insolvent.</p> <p>4. The petition filed was demurrable. It nowhere alleged that the grantees in the deed attacked participated in a fraudulent plan (if it existed) to prevent the plaintiffs from collecting the amounts due them, or had notice thereof. The deed attacked bore date before the creation of the debts on which the judgments were founded. There was no distinct charge that it was not then executed. There was some suggestion that the valuable consideration recited in the deed was not paid, but there was no direct allegation to that effect.</p> <p>5. If it was intended to charge that the grantees had no means with which to pay the recited consideration, or did not in fact pay it, such allegation should have been directly made, and not by mere inference from pleading collateral facts, which might possibly have an evidential value, and then drawing conclusions therefrom.</p> <p>(a) Certain specified paragraphs in the petition are held to have been subject to special demurrer.</p>

<p>Equitable petition. Before Judge Martin. Wilcox superior court. March 21, 1911.</p>

Affidavit of illegality of execution. Before Judge Frank Park. Turner superior court. March 16, 1911. W. A. Greer was the ordinary of Turner county during the years 1907 and 1908, and as such officer performed during those years certain extra public services and incurred certain expenses in behalf of the public, in relation to which the existing laws provided no compensation.

<p>There was no error in the judgment sustaining in part the demurrer to the intervention.</p>

<p>. Action for damages. Before Judge Conyers. Glynn superior court. February 15, 1911.</p>

<p>The petition was properly dismissed on general demurrer.</p>

<p>Complaint. Before Judge Bell. Eulton superior court. March 18, 1911.</p>

<p>1. If a mother buys lands with her -own funds and causes the title to be made to her son under an understanding and agreement that the property is to be hers, and that the son will make to her such conveyance as she may require, a trust in favor of the mother will be implied.</p> <p>2. Under our statute an express trust must be created or declared in writing. Therefore, where three persons joined in the purchase of a tract of land, and title was made to one of them, parol evidence is inadmissible to show that it was the agreement that one of the others was to have the complete title, and that the grantee and the other purchaser were only to have a home on the land until the happening of a specified contingency.</p> <p>3. The petition charged that the defendant pretended to claim the land sought to be recovered under an alleged will of the plaintiffs intestate, which had never been probated, and prayed its cancellation. The defendant in her answer denied that she claimed under the will, but set out the alleged will in extenso. The plaintiff specially demurred to so much of the answer as set forth the will, on the ground of irrelevancy. Held, that, though the will may not be relevant to the real issue in the case, yet, as the plaintiff in her petition called on the defendant to produce this instrument, and prayed its cancellation, the averments respecting it are responsive to the plaintiff’s own allegations and prayer.</p> <p>4. The defendant also averred that the plaintiff’s intestate died shortly after his marriage, and that, in ignorance of the fact that a child would be born to his widow, she entered into an agreement with her respecting the disposition of her husband’s property. This matter is irrelevant, because the defendant claimed no right or benefit under the agreement, and because any arrangement between the plaintiff as an individual and one of the defendants would not estop the former in her representative capacity.</p> <p>5. There were some special grounds of demurrer relating to the relevancy of certain averments in the answer; but as they may properly be considered as matters of inducement to the material averments of the defense, there was no error in overruling these grounds.</p> <p>6. In a suit instituted by an administrator, a defendant is an incompetent witness to testify in his own favor concerning transactions and communications with the deceased person, whether such transactions or communications were had by such deceased person with the party testifying or with any other person. Acts of 1900, p. 57</p> <p>7. Some of the excerpts from the charge were constructed to fit the allegations of the answer setting up a parol express trust, and for that reason were erroneous.</p>

<p>1. Where a notice to produce books and papers, served on a non-resident defendant, is too extensive in range, necessarily including a great mass of irrelevant matter, and it appears that their production will be at great expense and inconvenience, and to the serious injury of the party’s business, and he offers in open court to accord the opposite party the right to inspect and make copies of such parts as is desired, and showy, that some of the papers demanded are beyond his power to produce, it is not error for the court to refuse a peremptory order requiring their production on penalty of dismissing the party’s plea to the action.</p> <p>2. A verdict for the defendant was demanded by the evidence.</p>

<p>Action for damages. Before Judge Morris. Cobb superior court. August 26, 1911.</p>

<p>Equitable petition. Before Judge Eite. Gordon superior court. Mareb.8, 1911.</p>

<p>Action for damages. Before Judge Maddox. Floyd superior court. January 26, 1912. '</p>

<p>Complaint. Before Judge Charlton. Chatham superior court. July 21, 1911.</p>

<p>Equitable petition. Before Judge Edwards. Douglas superior court. March 24, 1911.</p>

Equitable petition. Before Judge Frank Park. Decatur superior court. July 5, 19ll. On October 21st, 1902, Mrs. Lizzie Darsey instituted suit against Mrs. Eebecca Darsey, George E. Darsey, L. 0.

<p>Equitable 'petition. Before Judge Thomas. Colquitt superior court. April 4, 1911.</p>

<p>Actibn upon insurance policy. Before Judge Ellis. Eulton superior court. March 6, 1911.</p>

<p>1. Where a street-railway company which owned land anutting on a public highway outside of the limits of a municipal 'corporation, for its own benefit and without permission from the proper authorities, as required by the statutes, and in violation thereof (Penal Code, §§ 543-545), dug up the highway and placed a catch-basin in it on the edge of the sidewalk, with a pipe leading therefrom across the street under the surface to another catch-basin, and then refilled the ditch, this was unlawful; and if a person legitimately passing over the catch-basin after its construetion stepped in a hole in its covering, and was injured, the railway-company was liable for such injury, without the necessity for showing that the top of the catch-basin was negligently constructed or that the company was negligent in causing or permitting a hole to exist therein, it not appearing that the injured person was wanting in ordinary care.</p> <p>2. An owner of property abutting upon a street or highway is not, because of such ownership, liable for defects in such street or highway. But this rule does not relieve the owner of abutting property from liability, if he unlawfully places in the highway a structure which later gets in bad repair and causes injury to a passer.</p> <p>3. Suit for a personal injury caused by stepping into a hole in the top of such a, catch-basin was not barred by the statute of limitations because the basin was originally constructed four years before the suit was brought, where the person injured sued within less than two years from the time when the injury occurred.</p> <p>(a) The statute of limitations applicable to the prosecution of a person who wrongfully obstructs or interferes with a highway has no application to a suit by one who suffers a personal injury by reason of the existence of a catch-basin so unlawfully built.</p> <p>4. The evidence was not such as to require a reversal under the contention that the verdict was unauthorized because the evidence showed that the county authorities had assumed jurisdiction over the structure in question and had relieved the defendant from any duty in regard to it.</p> <p>5. When the limits of the municipal corporation were extended so as to include a part of a highway which had previously been beyond the limits, such part of the highway then became one of the public streets of the city, and the municipality'became liable for failure to keep it in proper repair, as it would be for failure to repair its other streets.</p> <p>(a) But whether or not the municipality was liable on account of an injury occurring there, this did not operate to release from liability one who unlawfully placed in the highway before it became a street a catch-basin which caused a personal injury to a passer.</p> <p>6. Allegations and proof as to the ownership by the defendant of abutting property, the situation of its tracks and station for passengers at that point, the digging of a ditch across the street, and the laying of a pipe connecting this with another catch-basin, were competent as showing the situation and surroundings, and that the defendant built the catch-basin for its own benefit.</p> <p>7. Evidence on the part of the city engineer that the construction of sewers came within the control of the engineering department of the city, and that such department had never had anything to do with the catch-basin in question, was admissible as tending to show that the city had never assumed or exercised control over such basin as a part of its drainage system.</p> <p>(a) So likewise, evidence of the chief of the sanitary department was admissible to show that such department cleaned the catch-basins in the city, and that they had never cleaned out the one in question. If his other evidence as to the practice in cleaning catch-basins rendered v the admissibility of this doubtful, its admission would not require a reversal.</p> <p>8. In a suit for a personal injury, where the nature and extent of the injury, the character of the treatment administered, the services rendered by physicians, and the amount paid therefor were fully proved, a charge to the effect that the plaintiff, if entitled to recover, would be entitled to recover such reasonable amount of physicians’ bills and necessary expenses incurred in consequence of the injury as might have been proved to the satisfaction of the jury, was not without evidence to support it, although no witness expressed the opinion that the charges were reasonable.</p> <p>9. Where there were two counts in the petition, and the verdict was in favor of the plaintiff, without stating on which count it was based, if this furnished any ground for objection to the verdict when returned, it was no cause for a new trial, in the absence of any such objection.</p> <p>10. None of the other assignments of error require a reversal.</p>

<p>Trover. Before Judge Pendleton. Fulton superior court. May 9, 1911.</p>

<p>Complaint for land. Before Judge Boan. Newton superior court. July 15, 1911.</p>

<p>Equitable petition. Before Judge Bawlings. Washington superior court. March 15, 1911.</p>

<p>Trover. Before Judge Bawlings. Bulloch supemr court. February 14, 1911.</p>

<p>1. Although a tenant who is a merchant may sell and dispose of’a considerable portion of his stock of merchandise, including all the goods in the store of a certain class, at a reduced price and not with the intention of replacing these goods with other goods of a similar character or value, and though such a sale have the effect of decreasing the value of the stock of goods carried, it is error to charge as matter of law that this would have the effect of subjecting the tenant to immediate distraint under the provisions of section 3700 of the Civil Code, relative to tenants seeking to remove their goods from the premises.</p> <p>2. Would the sale by such a tenant of his entire stock of goods in bulk have the effect of subjecting the tenant to distraint under the statute above referred to? Quasre.</p>

<p>Equitable petition. Before Judge Rawlings. Screven superior court. July 8, 1911.</p>

<p>Under statutory proceedings for the foreclosure of 'a chattel mortgage, an obligation contained therein to pay attorney’s fees in addition to principal and interest can not be enforced.</p>

<p>J. F. Huff executed the following instrument: “Georgia, Cobb County. This indenture, made this the 29th day of May, 1890, between J. F. Huff and Mrs. Martha Huff, both of the county and State aforesaid, witnesseth: That the said J. F. Huff, for and in consideration of the love and affection of his wife, the said Mrs. Martha Huff, the said J. F. Huff hereby gives, grants, and conveys to the said Mrs. Martha Huff all the property both real and personal [which includes the land in controversy] belonging to the estate of the said J. F. Huff, in the County of Cobb, State of -Georgia, at his death, should the said Mrs. Martha Huff survive the said J. F. Huff, and the said Mrs. Martha Huff shall have the property as aforesaid, with all the rights and privileges belonging thereunto, for the support of the said Mrs. Martha Huff; and should there remain any property real or personal at the death of the said Mrs. Martha Iiuff, the same shall be divided equally between James Huff and Mary Ragsdale.” There arising a controversy as to whether this paper was not void on the ground that it was testamentary in character and improperly executed and attested, all his children joined in executing an instrument which rendered it effectual to convey property according to the terms thereof. After the death of J. F. Huif, Mrs. Martha Huif conveyed the lands referred to in this writing to the defendant in the instant case, and after the death of Mrs. Martha Huif the said James Huif and Mary Ragsdale brought suit to recover the land, alleging that they had a vested-remainder interest therein and were entitled to possession thereof upon the termination of the life-estate. Held, that, under the terms and provisions of the instrument set forth above, Mrs. Martha Huff had authority to consume the entire estate for her support, the corpus as well as the income, and that a sale of the land for that purpose by her and a conveyance executed in pursuance thereof divested James Huff and Mary Ragsdale of any interest they might have had in the land.</p>

<p>Comiolaint. Before Judge Morris. Cobb superior court. May 13, 1911.</p> <p>The Central Bank & Trust Corporation sued the Artesian Lithia Water Company upon, four promissory notes, aggregating the principal sum of $300. Each of these notes was signed, “Artesian Lithia Water Co. (Seal), by J. J. Verner, Sec. & Treas.” The defendant company filed its plea and answer, in which it denied that the notes sued on were executed by any authorized agent or representative of the defendant, for it or on its behalf, or by its authority, or with its knowledge or consent; and therefore denied that it was liable to the plaintiff thereon. Upon the trial the plaintiff proved the execution of the notes by J. J. Verner. It proved by thes minutes of the defendant corporation that Verner was its duly elected secretary 'and treasurer; that upon its book of minutes were resolutions duly adopted by the defendant’s board of directors, on February 6, 1901, in which it was resolved: “(1) That the President and Secretary and Treasurer be authorized to borrow the sum of one thousand dollars with which to open an agency in Atlanta, Ga., for the sale of water. That this money be expended for the purchase of utensils, delivery wagons, etc., for carrying on said business. (2) Resolved that the said J. J. Verner is appointed for said position in Atlanta. (3) Resolved, that the said J. J. Verner is not to expend any sum in excess of one thousand dollars, and that no debts shall be contracted by him for and on account of said company, in excess of said one thousand dollars, without the consent of the board of directors had and obtained for that purpose.”</p> <p>Verner, who was the plaintiff’s witness, testified in substance as follows: He procured the loan from the Central Bank & Trust Corporation as secretary and treasurer of the water company, under authority of the foregoing resolution. He was at the time secretary and treasurer of the company, and as such it was his duty to operate the company, borrow money, spend money, and hold the money. From 1904 he had actual management and control of the business of the company; he opened the agency in Atlanta as provided in the resolution, bought material and fixtures, and opened an office. At the time of opening the agency W. C. Lanier was president of the company, but had nothing to do with the actual management of the business, and did not stay at the office of the company. No officer or stockholder other than the witness had management of •the business for about one year after the resolution of February 6,-1907, above set forth. Under authority of that resolution the company borrowed, on February 8, 1907, the sum of five hundred dollars; this loan was made to the company by Yerner himself; the note therefor was signed by W. C. Lanier as president and J. J. Yerner as secretary and treasurer of the water company. On March 19, 1907, a loan of $300 was procured from the Central Bank & Trust Corporation, and the notes therefor, of which the notes sued on were given in renewal, were signed in the name of the water company by J. J. Yerner as secretary and treasurer. Neither Lanier nor any one else as president had ever signed any note except the five-hundred-dollar note above referred to. Yerner, when he signed the renewal notes sued on, March 10, 1908, was acting in the capacity of secretary and treasurer, and continued to so act for three or four days thereafter.</p> <p>W. C. Lanier, who was a witness for the defendant, testified in part: “That all he ever did with reference to carrying out the resolution for borrowing that one thousand dollars was to sign the one note for five hundred dollars; that he had nothing to do with the management or conduct of the business of the company at any time during the period of that contract; that he had no active duties to discharge; that he did not go out and make contracts for the company, or buy supplies or other necessary things for the company; . . that Yerner was manager of the Atlanta agency and secretary and treasurer of the company; that there was no such officer as general manager of all branches of the company’s business; . . that Yerner had control of the springs or wells in Cobb County, and of the pumping and shipping of the water, and directing the whole business of the company at Austell, as well as what the company was undertaking to do at Atlanta; that he bought wagons and horses, and had charge of the business as secretary and treasurer, and was the only officer of the company drawing any salary, and the only man that had active duties to perform.”</p> <p>The court directed a verdict for the plaintiff.</p>

<p>Complaint. Before Judge Edwards. Haralson superior court. January 20, 1911.</p>

<p>Complaint for land. Before Judge Morris. Cherokee superior court. March 1, 1911.</p>

<p>Action for damages. Before Judge Edwards. Haralson superior court. May 13, 1911.</p>

<p>Complaint. Before Judge Edwards. Haralson superior court. • July 20, 1911.</p>

<p>Complaint for land. Before Judge Edwards. Haralson superior court. June 20, 1911.</p>

<p>Indictment for rape. Before Judge J. B. Park. Morgan superior court. April 30, 1912.</p>

<p>Habeas corpus. Before Judge Walker. Warren superior court. April 8, 1912.</p>

<p>1. A statute which provides a penalty against a common carrier for “refusing to put on sale,” or to sell tickets of a connecting carrier for the transportation of passengers over the connecting line, or any portion thereof, at the rate prescribed by the railroad commission of the State, does not violate the provisions of art. 1, see. 1, par. 3, of. the constitution of the State, which declares that no person shall be deprived of property except by due process of law.</p> <p>(a) Nor is such a statute obnoxious to the fourteenth amendment of the constitution of the United States, which declares that no State shall deprive any person of property without due process of law, nor deny to any person the equal protection of the laws.</p> <p>(5) Nor does such a statute violate the provisión of the constitutions above referred to because it interferes with and destroys the right of private contract.</p> <p>(c) Nor because it compels a railroad company to become the debtor of another railroad company against its consent.</p> <p>(d) Nor because it compels a railroad company to become the agent of another railroad company, or to appoint another railroad company its agent, against its consent. «</p> <p>(e) Nor because it deprives a railroad company of the right to select its own agents, and compels it, against its consent, to transact its business through the agents of another railroad company.</p> <p>if) Nor for the reason that it requires a railroad company to enter into contractual relations with another railroad company against its consent.</p> <p>2. Where a connecting line of railroad having an office or agency has on sale tickets furnished by another connecting railroad for the transportation of passengers over the latter, and refuses to sell said tickets to a prospective passenger who applies to the agent of the initial carrier for such tickets at the price fixed by the railroad commission of this State, the railroad so refusing is subject to the penalty provided by the Civil Code, § 2755.</p> <p>3. The petition, as amended, set forth a good cause of action, and the demurrer thereto should have been overruled.</p>

<p>Mandamus. Before Judge Worrill. Early superior court. March 23, 1912.</p>

<p>Equitable petition. Before Judge Frank Park. Decatur superior court. July 5, 1911.</p>

<p>Equitable petition. Before Judge Felton. Crawford superior court. July 20, 1911.</p>

<p>■ Equitable petition. Before Judge Bell. Fulton superior court. May 26, 1911.</p>

<p>1. It is not error for a trial judge to direct a verdict for the plaintiff, where there is no conflict in the evidence introduced, and it, with all reasonable deductions therefrom, demands a verdict for the plaintiff.</p> <p>(a) Under a contract between a supply company and another company, the latter was made the agent of the former for the sale of certain concrete mixing machines in a given territory, at a named per cent, discount on the selling price. The machines in issue were placed with the agent, to be paid for at the selling price agreed upon, less 15 per cent. Before the sale of the machines by the agent, the supply company failed, and sold part of its assets, including the machines in question, to the original manufacturer, from which the supply company had originally purchased. The agent company received from the supply company, after the failure and sale, the paper given for the payment of the machines, no payment having been made by the agent thereon. Correspondence between the sales agent and the vendee of the supply company showed that the agent held the machines on consignment for the benefit of the vendee, the plaintiff in this suit, and the former offered to return the machines to the latter. The agent later sold the machines, and, on demand for them made on the agent and the latter’s failure to deliver, the plaintiff brought his suit in trover to recover them, and on the trial elected to take a money verdict. The agent company denied that the title to the machines was- in the plaintiff, but claimed it was in the defendant. Held, that the trial judge did not err in directing a verdict for the plaintiff against the defendant for the admitted value of the machines sued for.</p> <p>2. It appears from the contract, which was executed in the State of Illinois, that the selling corporation was an Illinois corporation and the purchasing corporation was a Wisconsin corporation, and that the latter did not purchase the franchise of the former, or all of its assets, and the latter did not assume the debts and liabilities of the former, but the former' corporation continued to do business in its ' own name until its failure some time after the sale. Held: (a) The transaction between the selling corporation and the purchasing corporation was one of sale, and not'of merger. (6) Where there has been a bona fide sale of the property of one corporation to another, the vendee is not responsible for the existing debts of the vendor, unless the vendee'expressly, assumes such debts and liabilities, (c) The court' erred in directing a verdict for the defendant against the plaintiff.</p>

Complaint. Before Judge Frank Park. Randolph superior court. July 1, 1911. Tbe International Cotton Company brought suit against W. R. Terry, for a breach of a written contract dated July 12, 1909, whereby the plaintiff agreed to purchase and the defendant to sell fifty thousand pounds of cotton at twelve cents per pound, to be delivered in merchantable bales at any warehouse in Shellman, Georgia, during the month of October.

<p>Equitable petition. Before Judge Whipple. Ben THU superior court. April 13, 1911.</p>

Equitable petition. Before Judge Conyers. Wayne superior court. April 25, 1911.

<p>Taxation of receiver’s fee. Before Judge Ellis. Eulton superior court. January 15, 1911.</p>

<p>Equitable petition. Before Judge Ellis. Fulton superior court. March 27, 1911.</p>

Action for damages. Before Judge Pendleton. Fulton superior court. June 7, 1911. John Bennefield brought an action-for damages for personal injuries against the Georgia Railroad & Banking Company.

<p>Complaint. Before Judge Rawlings. Screven superior court. August 9, 1911.</p>

Equitable petition. Before Judge Meadow. Glascock superior court. May 10, 1911.

<p>Petition for specific performance. Before Judge Charlton. Chatham superior court. August 11, 1911.</p>

Injunction. Before Judge Worrill. Early superior court. December 14, 1911.

<p>Petition for injunction. Before Judge Bell. Fulton superior court. October 4, 1911.</p>

Complaint for land. Before Judge Ellis. Fulton superior court.. July 22, 1911.

Complaint. Before W. C. Wright, judge pro liac vice. Campbell superior court. August 11, 1911. Mrs. Anna Wright sued the Union City Realty & Trust Company and others. The petition was twice amended. In its final form it alleged in substance as follows: On or about the 12th day of May, 1909, J. II.

<p>Equitable petitiou. Before Judge Bawlings. Jenkins superior court. March 28, 1911.</p>

<p>Equitable petition. Before Judge Walker. Washington superior court.. May 25, 1911.</p>

<p>Interpleader. Before Judge Rawlings. Bulloch superior court. June 22, 1911.</p>

<p>Action for damages. Before Judge Charlton. McIntosh superior court. May 23, 1911.</p>

<p>Action for damages. Before Judge Felton. Bibb superior court. March 2, 1911.</p>

<p>Equitable petition. Before Judge Eelton. Bibb superior court. May 1, 1911.</p>

<p>Partition. Before Judge Felton. Houston superior court. May 33, 1911.</p>

<p>Action for damages. Before Judge Brand. Gwinnett superior court. June 31, 1911.</p>

<p>Complaint. Before Judge Jones. Lumpkin superior court. April 18, 1911.</p>

<p>Where upon an application for mandamus a general demurrer to the answer of the respondents and a motion to strike the answer are overruled, and this ruling of the court below is brought to this court by writ of error, and the bill of exceptions contains no assignment of error upon a final ruling of the court, this court is without jurisdiction to entertain the writ of error; and in the present case the writ of error is dismissed, but leave is given to the plaintiffs in error to withdraw the copy of the bill of exceptions of file in the court below and file the same as a pendente lite bill of exceptions.</p>

<p>Claim. Before Judge Walker. Warren superior court. April 11, 1911.</p>

<p>Equitable petition. Before Judge Hammond. Richmond superior court. January 11, 1911.</p>

<p>Equitable intervention. Before Judge Pendleton. Fulton superior court. May 26, 1911.</p>

<p>Processioning. Before Judge Hammond. Burke superior court. June 23, 1911.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. July 31, 1911.</p> <p>Error was assigned upon a judgment dismissing the plaintiff’s case on general demurrer. According to the allegations of the petition, as amended, the plaintiff sold a bill of merchandise to the 'firm of Parks & Everett, composed of J. J. Parks and S. A. C. Everett. Parks sold out his interest to Everett, and the latter organized the defendant corporation, which “took over the stock and assets of the old firm.” Parks had no other property than that transferred to Everett. Everett “put all his stock of merchandise . . into the new corporation, receiving therefor stock” in the corporation. There was no actual sale, but the partnership was merely absorbed by the corporation, and the pretended sale was in fraud of creditors of the partnership,. and the transaction made the partnership insolvent. Everett died, leaving no estate, except the stock in the corporation, and that was hypothecated to his personal creditors. A judgment was prayed against the corporation on account of the alleged debt contracted by Parks and Everett.</p>

Equitable petition. Before Judge Walker. Taliaferro superior court. June 9, 1911.

<p>Exceptions to auditor’s report. Before Judge Eoan. Eockdale superior court. December 31, 1910.</p>

<p>Money rule. Before Judge Meadow. * Madison superior court. March 20, 1911.</p>

<p>Mortgage foreclosure. Before Judge Sheppard. Liberty superior court. June 15, 1911.</p>

<p>Appeal. Before Judge Charlton. Chatham superior court. March 25, 1911.</p>

<p>Specific performance. Before Judge Morris. Gilmer superior court. May 16, 1911.</p>

<p>Action for money had and received. Before Judge Morris. Cobb superior court. Marcli 14, 1911.</p> <p>Mrs. Ida E. Hartley, as administratrix upon the estate of C. H. Hartley, deceased, brought an action against the Marietta Nursery Company for the recovery of $1,000. It was alleged that in the year 1902 the Massachusetts Mutual Life Insurance Company issued a policy of insurance on the life of plaintiff’s intestate, the policy being made payable “to his estate.” On February 19, 1907, the insured executed to the defendant a transfer of the policy, changing the nanie of the beneficiary to that of the defendant. Subsequently the insured died, and about October 1, 1909, the defendant collected the $1,000 on the policy, and refused to account to petitioner for the same. It was further alleged that the transfer of the policy was “void, for the reason that at the time said transfer was made the said C. H. Hartley, deceased, was non compos mentis, and did not possess sufficient mental capacity to make a valid contract under the law, and for further reason that said transfer was without consideration.” The defendant answered, that the intestate was indebted to the defendant in a greater amount than that collected on the policy; and that the intestate, at the time of making the transfer of the policy, had sufficient mental capacity to make the contract, and the assignment of the policy by him was in payment of the debt. By amendment it was set up that the assignment was as collateral security for the debt; and there was a prayer to recoup the difference between the amount collected on the policy and the amount owed by the intestate to the defendant. On the trial, at the conclusion of plaintiff’s evidence, a nonsuit was granted, and the plaintiff excepted. According to the evidence the only question raised by the contentions of the parties was as to the mental capacity of plaintiff’s intestate. Other facts sufficiently appear from the headnotes.</p>

<p>Complaint. Before Judge Fite. Gordon superior court. June 21, 1911.</p>

<p>Complaint. Before Judge Fite. Murray superior court. August 28, 1911.</p>

<p>Complaint. Before Judge Fite. Murray superior court. August 28, 1911.</p>

<p>Equitable petition. Before Judge Edwards. Haralson superior court. January 30, 1911.</p>

<p>Equitable petition. Before Judge Edwards. Douglas superior court. March 23, 1911.</p>

Complaint. Before Judge Frank Park. Decatur superior court. June 26, 1911. On April 18, 1910, the Crawford Oil Mill instituted suit against the Bainbridge Oil Mill for damages from an alleged breach of the following contract: “Sold 'to the Crawford Oil Mill, Crawford, Georgia, for account of the Bainbridge Oil Mill, Bainbridge, Georgia. Quantity: Six (6) tank cars of about 160 barrels each. Quality: Basis prime crude cottonseed oil.

<p>Equitable petition. Before Judge Conyers. Appling superior court. March 17, 1911.</p> <p>On July 26, 1910, the Georgia Bealty Company, a corporation, instituted an action against J. H. Crosby for specific performance of the following contract, signed by both parties:</p> <p>“Graham, Ga., April 16, 1910. Beceiyed of Georgia Bealty Company, of Madison, Georgia, $500.00 in part payment of 1,400 acres of land, same being in Appling and Jeff Davis Counties, Georgia, same being all the land I own on south side of the Southern Eailroad, containing 325 acres, more or less, including all improvements, storehouses, dwellings, houses, tenant-houses, barns, stables, turpentine site, etc., also 1,075 acres lying on the north side of the Southern Eailroad, including all tenant-houses, wire fencing, and improvements of all kinds, balance to be paid January 1, 1911, $21,500; this includes five storehouses, one barn, one commissary, one ginhouse, four dwelling-houses, on nine acres of land known as town property. I hereby guarantee 1,400 acres to be surveyed and expenses paid by me, the difference to be deducted or paid at same rate. I also guarantee titles subject to examination; and if not found satisfactory, $500.00 to be returned to buyer. This is to be done at the cost of buyer, Georgia Eealty Company, of Madison, Georgia. Possession to be given to said property on or by January 1, 1911, when paid in full. This April 16th, 1911.”</p> <p>In order to meet certain grounds of demurrer, the plaintiff in effect abandoned its effort to require a deed to any land north of the Southern Eailroad, but sought an apportionment and to require a deed to the ascertained acreage of the land south of the Southern Eailroad. In other words, the petition, as amended, alleged an offer to pay for 355 acres, being the ascertained amount of land referred to in the contract as lying south of the railroad, at the apportioned price of $15.71 3/7 per acre, amounting to $5,578.58. It also alleged a repudiation of the contract by the defendant on the 14th day of May, 1910. The prayer was for specific performance of the contract relative to the 355, acres south of the Southern Eailroad, and, “in the event this petition is not finally disposed of before January 1, 1911 (the date at which a deed was contracted to be made), that the said J. H. Crosby be required by order and decree of the court to show cause, at the next term of court, why he should not execute a warranty deed in and to thp lands described in the fourth paragraph of this petition and receive the balance of the purchase-price herein tendered.” On March 10, 1911, the judge directed a general verdict in favor of the plaintiff, and thereupon, on March 17, 1911, entered a decree reciting that the plaintiff had deposited with the clerk of court $4,007.15, subject to the order of the defendant, and ordered that the defendant, upon being presented with the same for execution, execute and deliver to the plaintiff a fee-simple warranty deed to the described tracts of land, which, by amendment to the petition, were alleged to 'constitute the land sued for, lying south of the Southern Bail-road ; decreeing further that the title of defendant to such property “is hereby vested in said Georgia Bealty Company.” The defendant urged, by demurrer to the petition as amended, by exceptions to the judgment, and otherwise, that the suit was prematurely instituted;-and the judgment being adverse to him, he excepted.</p>

<p>Complaint. Before Judge Morris. Cobb superior court. January 31, 1911.</p> <p>In an action by B. E. Butler against W. A. Sams the petition alleged' that the defendant was indebted to the plaintiff in the sum of $3,600 principal, and interest, by reason of the following facts: On September 20, 1907, petitioner sold to defendant described land for $10,000, $6,400 of which was to be paid in cash on January 1, 1908, the balance to be paid on the date last mentioned in “nine thousand (9,000) shares of Los Colorados Mining Stock, par value one dollar per share, at the price of forty cents per share, cash value.” The contract of sale was evidenced by a bond for title. On January 2, 1908, the defendant paid the amount which had been promised to be paid in money, received from the plaintiff a warranty deed, and promised in a “day or two” to deliver to plaintiff the nine thousand shares of stock. The land was worth $10,000, and the stock was represented by the defendant to be of the value of forty cents per share, and was accepted at such value by plaintiff, and in fact at that time it was bringing that, price on the market. The defendant failed to deliver the stock, though frequent demands had been made for it, and in the meantime it depreciated in value and was worthless at the time of the institution of the suit. After alleging in substance as above set forth, the petition further alleged that defendant “having failed and refused to turn over said stock according to his contract, and said stock having become worthless, petitioner brings this suit for the balance purchase-money of said land, to wit, thirty six hundred ($3,600.00) dollars, with interest from January 1st, 1908, at 7 per cent, per annum,” and prayed for process, and that “plaintiff have a verdict and judgment for said principal sum with interest as above set out.” The petition contained a second count, which was in substance as above indicated, except that instead of suing “for the balance purchase-money,” it was alleged that the suit was “for the value of said stock at the time the same should have been delivered to petitioner.” On the trial the plaintiff abandoned the second count, and relied solely on the first. The jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial, which was overruled, and he excepted.</p>

<p>Appeal. Before Judge Fite. Whitfield superior court. March 23, 1911.</p>

<p>Forfeiture of recognizance. Before Judge Morris. Cobb superior court. January 14, 1911.</p>

<p>Action upon bond. Before Judge Felton. Houston superior court. April 4, 1911.</p>

<p>Probate of will. Before Judge Brand. Oconee superior court. March 25, 1911.</p>

<p>Petition for injunction. Before Judge Daniel. Monroe superior court. October 31, 1911. . .</p>

<p>Complaint for land. Before Judge Thomas. Brooks superior court. May 5, 1911.</p> <p>.On April 7, 1909, M. F. Jones instituted an action against S. S. Rountree individually, and S. S. Rountree and D. W. Rountree as executors of the last will and testament of A. J. Rountree, deceased, to recover an undivided one-eighteenth interest in certain land. The case was submitted upon - an agreed statement of facts to the judge for decision without a jury. The plaintiff was one of three children of Martha and William Jones, and relied for recovery on the provisions of an antenuptial contract which, in so far as is material, is set out in the opinion. Before the marriage of William and Martha Jones, Martha was the widow of Hardy E. Hunter, deceased, and had elected to take a one-sixth interest in the estate of Hardy E. Hunter as her share of the estate. The antenuptial contract dealt with this interest in the property; and the plaintiff, being one of three children, the issue of the marriage between Martha and William Jones, who were living at the death of Martha Jones, who had survived William Jones, asserted title by virtue of such contract to one third of the one-sixth interest of Martha Jones in that portion of the estate of Hardy E. Hunter which is described in the petition. A. J. Rountree and S. S. Rountree purchased the land in dispute in 1895 at a commissioner’s sale, at which the fee-simple title was sold and conveyed under order of a court of equity as the property of William Jones, to satisfy certain executions against William and Martha Jones. The purchasers immediately entered possession in good faith, 'and continued to maintain possession of the property openly and notoriously until the date of the institution of the suit, a term of about fifteen years. Based upon such possession under color of title, the defendants set up in their plea title by prescription as a defense to the action. The judge rendered his decision in favor of the defendants. Error was assigned upon this judgment.</p>

<p>Attachment. Before Judge Parker. Ware superior court. July 32, 1911.</p>

<p>Action for damages. Before Judge Ellis. Eulton superior court. June 5, 1911.</p>

<p>Eviction. Before Judge Eoan. Troup superior court. August 5, 1911.</p>

<p>Indictment for murder. Before Judge Felton. Bibb superior court. April 29, 1912.</p>

<p>Claim. Before Judge Sheppard. Liberty superior court. September 19, 1911.</p>

<p>Injunction. Before Judge Fite. Whitfield superior court. April 3,1912.</p>

<p>Injunction. Before Judge Fite. Catoosa superior court. April 12, 1912.</p>

<p>Injunction. Before Judge Fite. Murray superior court. April 6, 1912,</p>

<p>Claim. Before Judge Maddox. Floyd superior court. October' S3, 1911.</p>

<p>Temporary alimony. Before -Judge Maddox. Floyd superior court.- February 1, 1912.</p>

<p>Civil Code § 4424, relative to the right of a widow and minor children to damages for the homicide of the husband of the widow, father of the children, should be construed in connection with.,the provisions of Civil Code § 4425, on the same subject. Under application of this law, surviving children have a cause of action for the negligent homicide of their father, after the death of the widow who after the homicide died without instituting suit for the damages.</p>

<p>Petition for injunction. Before Judge Brand. Jackson superior court. June' 15, 1912.</p>

<p>1. Where a condition contained in a life-insurance policy issued by the Supreme Lodge Knights of Pythias to one of its members provided that “The eontx'aet evidenced hereby shall not begixx until twelve o’clock noon of the day of the date hereof, and then the Supreme Lodge Knights of Pythias, hereinafter called the Society, will not be liable unless the said member has actually paid the membership fee and made the first monthly payment required while said member is in good health,” and the policy was dated November 1, 1907, axxd delivered to the insured on November 2, 1907, and the first monthly premium was due and paid on the 20th day of November, 1907, by the insured: Held, that relatively to delivering the policy and paying the premium as above stated, both acts were “contemporaneous” within the meaning of the contract in this ease, and the policy of insurance became of binding force on the society on the 20th day of November, 1907, so far, at least, as this clause of the contract is concerned; and not before.</p> <p>(a) Where in such a case the agent of the society knew the insured was not in good health after,the time the application for insurance was received, but before the policy was delivered to the insured, and the agent delivered the policy and received the first monthly payment from the insured with the same knowledge, the society will not be heard to set up as a defense to a suit on the policy that the insured was not in good health at the time of taking out the insurance on his life, but will be held to have waived the conditions in the policy to the effect that the insurer “will not be liable unless said member has actually paid the membership fee and made the first monthly payment required while said member is in good health.”</p> <p>2. Where on the trial of a suit brought by the beneficiary (widow of the insured), to recover the value of a life-insurance policy, the pleadings and evidence tended to show that the application of the insured was attached to the policy, and contained statements as to having only certain policies of insurance in other companies, and there was evidence to the contrary on the trial of the case, it was error for the court to direct a verdict for the plaintiff.</p> <p>3. There is no merit in any of the other assignments of error.</p>

<p>Injunction. Before Judge Frank Park. Worth superior court. April 6, 1912.</p>

<p>Petition for injunction. Before Judge Conyers. Appling superior court. May 20, 1912.</p>

<p>Under the pleadings and evidence in the case the court did not err in holding that the respondent was not in contempt and in refusing the relief prayed by the petitioner against the respondent.</p>

<p>1. A judgment for temporary alimony payable in stated monthly sums until the application for permanent alimony is determined may be enforced by execution after the grant of permanent alimony.</p> <p>2. Where a judgment for temporary alimony is for a certain sum for each month, payable monthly, an execution may be issued in a gross sum for the aggregate amount due at the time of its issuance. If subsequent installments are not paid, another execution may issue for the amount accruing since the date of the issuance of the former execution; but the latter execution may not include the sum embraced in the former. The inclusion of the entire amount in the second execution does not vitiate the process; it amounts to an irregularity which is amendable.</p> <p>3. The issuance of the second execution and causing it to be entered on the execution docket, within seven years of the accrual of any installment properly included therein, prevents dormancy for a period of seven years after its issuance, without further entry.</p> <p>4. An oral agreement that a wife will not claim alimony, made pending the proceeding for alimony and divorce, and before the grant of alimony, can not be asserted as a defense to the collection of the judgment for alimony.</p> <p>5. A description of the judgment in an affidavit for garnishment based on a judgment is sufficiently definite, if the parties, the amount, and the court which rendered the judgment are given.</p> <p>6. One to whom alimony has been awarded may avail herself of any proper legal remedy for the enforcement of her judgment, and to that end may cause successive garnishments to be served on the employer of ’the defendant, to subject his salary payable monthly, which is subject to garnishment. The probability of the defendant’s loss of employment because of the annoyance to his employer occasioned by the service of summons of garnishment furnishes no ground for enjoining the garnishment proceedings.</p> <p>7. There is nothing in the pleadings looking to a modification or revocation of the alimony judgments, and the court erred in granting an injunction against their enforcement by process of garnishment.</p>

The Court of Appeals certified to the Supreme Court for decision two questions following, to say: “First. Does section 434 of the Penal Code (1910), properly construed, prohibit an agent of a non-resident dealer, engaged in interstate commerce, from personally soliciting orders in this State for the sale of intoxicating liquors, to be shipped into this State by the non-resident dealer ? “Second.

Equitable intervention. Before Judge Rawlings. Emanuel superior court. October 28, 1911. Under equitable proceedings begun by stockholders, the property of the Farmers Mercantile Company was, by consent, placed in the hands of a receiver, and various creditors set up their claims for payment. The Bank of Garfield claimed to be a creditor holding a security on real estate. On December 19, 1905, one C. R. Gay executed to the Farmers Mercantile Company a deed.

<p>Petition for discharge from custody, etc. Before Judge Sheppard. Tattnall superior court. January 15, 1912.</p>

<p>Temporary alimony. Before Judge Jones. Hall superior court. May 20, 1912.</p>

<p>Petition for injunction, etc. Before Judge Bell. Fulton superior court. May 3, 1912.</p>

<p>■ Mandamus. Before Judge Maddox. Walker superior court. March 9, 1912.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. January 20, 1912.</p>

<p>Indictment for murder. Before Judge Daniel. Butts superior court. June 13, 1912.</p> <p>J. C. Turner, George Turner, Alonzo Turner, and Charlie Turner were jointly indicted for the murder of Jesse Singley. J. C. Turner, hereinafter referred to as the accused, was separately tried. The evidence introduced by the State tended to show the following facts: The accused, one of his brothers, and their father, Bill Turner, negroes, were employees at the Elder House, a hotel at Indian Springs. The accused and this brother had a fight at the hotel, about 3.30 o’clock in the afternoon, which Bill Turner and the clerk at the hotel, Lane, a white man, endeavored to suppress. The clerk got into an altercation with one of the brothers, and these two endeavored to strike each other. Subsequently both went away and returned, the clerk with a pistol and the other with a rifle, but no further trouble ensued between'them. The clerk left Indian Springs for Macon, about 6 o’clock, and did not return for some days thereafter. On the trial the clerk failed to identify the accused, and pointed out as the accused one of his brothers. About 4.30 o’clock of the same afternoon, the deputy sheriff of Butts county and several other white men went to Indian Springs, the deputy having heard that there was a riot and that a negro was trying to enter the Elder House. They went to the house of Bill Turner, searching for the accused. Bill Turner demanded of them by what authority his house was being searched, and the accused, who was in the house, got mad about it, and the deputy sheriff put a handcuff on him, which “got up a right smart stir,” and several other negroes, who were near the house, “crowded up” towards it, but were made to “get back” by threats of one of the white men that “if they did not get back” he would kill them. Bill Turner made the accused “sit down and behave,” and the handcuff was then taken off. Then the deputy sheriff and his party left without taking any one with them. This was according to the testimony of one of the men with the deputy sheriff. The deputy testified that when he and his party went to Bill Turner’s house, nobody was in the house and that “in a minute or so Bill Turner and that boy Charlie [brother of the accused] came up, and several negroes were further down the road. They never did get to the house. I did not see J. C. [the accused] ; if I did, I did not know him. . . I saw a single-barrel breech-loader shotgun. I searched the house. . . We went to Bill’s house to search for Alonzo [another brother of the accused].” Between 8 and 9 o’clock on the night of the same day, Bill Turner was seen to come from the lot of the Elder House, with a rifle, and five or six other people, who were not identified, joined him in front of a stable which stood between the hotel and Bill’s house. Bill loaded his gun there, and he and those with him went up the road towards his house. Within a few minutes thereafter Jesse Singley and five other white men, who had been at Indian Springs on account of the rumored trouble there, were returning home along the road which Bill Turner and his party had taken. When Singley and his party were within 100 or 125 yards from Bill’s house, they were fired upon by one or more persons who were in a field near the road. Five or six shots were fired from the field, one sounding like the report of a shotgun and the others like a rifle or pistol. Jesse Singley was shot through both legs with a rifle bullet, and died from the wound. Another in his party was wounded, but recovered. After the shooting four or five persons were heard running from the place whence the shots came, to Bill’s house, and the slamming of a door or window there was heard. They remained at the house a short time, and then came out and went down the road towards Indian Springs. About 10 minutes after the shooting, Bill Turner and another man, who was not identified, were seen with guns to come out of the woods in the rear of the hotel and to enter it. Both went into a room, and Bill came out without a gun. The other man was not afterwards seen about the hotel. In 10 or 20 minutes after the shooting, the accused was seen “traveling in sort of a long trot,” coming from the direction of Bill’s house and going along the road from Indian Springs towards Forsyth. The witness who testified to this said that he and Ms wife were sitting on the veranda at their home when the accused passed along the road about 30 or 40 feet from the house. He further testified that his wife spoke to the accused and said, “J. C., what are you doing here, and where are you going? You had better get away from here; they will kill you for shooting that way.” The accused said, “I am going now.” After the shooting the sheriff of Butts county went, that night, to Bill Turner’s house and found it locked and the windows fastened, and no one was in the house. Three guns were found in the house, two single-barreled breech-loaders and an old muzzle-loader, which seemed not to be in shooting condition. The accused was arrested in Macon, Bibb county, about a week or two after the shooting. A negro detective, who had been for many years connected with the sheriff’s office of that county, testified that he and a deputy sheriff of that county, Williams, arrested the accused, and that he voluntarily stated to the detective and Williams “that he [the accused] was present at the time Mr. Singley was shot; he said he did not do the shooting; he said if he did run to the swamp he .did not do the shooting. He said he was there with Ms father. He did not say when he went to the place. He said, when his father shot he ran to the branch. . . He said that he and his father and another boy were present. I disremember whether he said who was with him.” Williams testified, in reference to the same conversation between himself and the accused in the presence of the detective, as-follows: “I asked him [the accused] : ‘Why did you kill that white man up there ?’ He said: ‘I didn’t kill him, but father did.’ He said: ‘I ran to the branch and came on to Macon.’ He said he did not do it, ‘Father did the shooting.’ ” Another witness testified that there was a branch near the scene of the homicide. No evidence was introduced by the accused. He made the following statement to the jury: “I don’t know anything about this killing I am charged with. I was at home, and didn’t know about it at all. I have got some witnesses to show I did not know, anything about it until afterwards. The hotel closed, and I left for home. I want witnesses to show where I was. They know.”</p> <p>There was a verdict of guilty, with recommendation of life imprisonment. The accused moved for a new trial, which being refused, he excepted.</p>

<p>Indictment for rape. Before Judge Thomas. Lowndes superior court. June 29, 1912.</p>

<p>Indictment for rape. Before Judge Martin. Pulaski superior court. August 1, 1912.</p>

<p>Indictment for murder. Before Judge Thomas. Tift superior court. August 17, 1912.</p>

<p>1. Where in a murder case the dying declaration of a decedent was that the mortal wound was inflicted by the defendant without provocation, and where the defendant admitted the killing, but claimed it was accidental, and offered witnesses to prove this defense, whose testimony was conflicting and authorized inferences corroborative of the dying declaration,- a verdict of guilty is not unauthorized.</p> <p>2. Where homicide by misadventure is set up as a defense, in charging on that defense it is not error for the court to read Penal Code § 40: “A person shall not be found guilty of any crime or misdemeanor com- • mittfed by misfortune or accident, and where it satisfactorily appears there was no, evil design, or intention, or culpable neglect.” It is altogether a different question whether the evidence authorized a charge on involuntary manslaughter; no exception having been taken to the court’s 'omission in this respect.</p>

<p>Indictment for murder. Before Judge J. B. Park. Greene superior court. August 22, 1912.</p>

<p>Indictment for murder. Before Judge Conyers. Glynn superior court. July 27, 1912.</p>

<p>Indictment for murder. Before Judge Charlton. Chatham superior court. August 30, 1912.</p>

<p>Indictment for murder. Before Judge J. B. Park. Jasper superior court. September 18, 1912.</p>

<p>Indictment for murder. Before Judge J. B. Park. Baldwin superior court. September- 23, 1912.</p>

<p>Habeas corpus. Before Judge Tbomas. Colquitt superior court. September 7, 1912.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. May 31, 1912. By tbe act of 1889 (Acts 1889, p. 362), the Governor was authorized to lease the Western & Atlantic Railroad, which belongs to the State, and extends from Atlanta, Georgia, to Chattanooga, Tennessee.

<p>Illegality of execution. Before Judge Thomas. Tift superior •court. December 6, 1911.</p>

<p>Certiorari. Before Judge Bawlings. Bulloch superior court. October 26, 1911.</p>

Action for damages. Before Judge Edwards. Polk superior court. September 9,1911. The Cherokee Mills, a corporation, and certain individuals brought suit against the Standard Cotton Mills. The petition, as amended, alleged, among other things, as follows: The Cherokee Mills owned a .tract of land. Lying north of this land and between it and the main line of a railroad was the property of the. Standard Cotton Mills, consisting of a tract of about ten acres.

<p>Equitable petition. Before Judge Frank Park. Decatur superior court. November 15, 1911.</p>

<p>Habeas corpus. Before Judge Bell. Fulton, superior court. February 21, 1912.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. November 20,1911.</p>

<p>Indictment for murder. Before Judge Thomas. Colquitt superior court. August 6, 1912.</p>