Volume 139 — Georgia Reports

<p>1. Primarily, the question of the competency of a witness to testify is a preliminary one for the trial court.</p> <p>(a) A witness is competent to testify as to the market value of farm land, if he has had an opportunity for forming an opinion as to its value.</p> <p>2. The general rule is that instructions by the court to the jury must be warranted by the evidence.</p> <p>(a) Where instructions are given that are not warranted by the evidence and are calculated to mislead and confuse the jury, the error- requires a new trial.</p> <p>3. An appeal from an award of assessors appointed in condemnation proceedings under the Civil Code, §§ 5206 et seq., is a de novo investigation, and the defendant in such proceedings may file an appropriate legal defense thereto.</p> <p>(a) In such a case, where the condemnor had described the entire tract of land of the eondemnee, out of which it was proposed to take the condemned land, as containing 125 acres, it was not error for the court to refuse to strike a portion of the condemnee’s plea which averred that the tract contained 175 acres, instead of 125 acres as alleged by the condemnor, which would be affected by the taking of the land specified in the notice.</p>

<p>1. Where iand was levied on under an execution against a man, and a claim was interposed by his wife, and after a verdict finding the property subject had been rendered, and a motion for a new trial had been made, the man and wife joined-in a deed to the creditors, which recited that it was made in consideration of settling the debts and for other considerations stated; relatively to a subsequent assertion of an attorney’s lien on the land and foreclosure thereof against the claimant by an attorney who had represented her, the grantees, who were not parties to the proceeding, were not concluded by the judgment of foreclosure.</p> <p>2. Where pending- a claim case the claimant joined with the defendant in execution in making a conveyance to the plaintiffs, recited to be in consideration of a settlement of the debts and for other considerations, and afterward the attorney representing the claimant took from his client a note for his fee and a mortgage on the land, and later surrendered these and took a deed to a part of such land in settlement of his fee, his right to thereafter claim and foreclose a lien on the whole land for his fee was extinguished. —</p> <p>(a) After asserting the superiority of his title to that conveyed by the former deed, and instituting proceedings attacking it as a cloud on his title, and losing that case, he can not treat all that occurred as a mere nullity, and claim and foreclose a lien on the land for his fee.</p> <p>3. In an action to recover land and mesne profits, it was not error as against the defendants to hold that they could not set up the value of improvements placed on the land pending the suit, further than to extinguish the claim for mesne profits.</p>

<p>1. A court of equitjq on the principle quia timet, lias jurisdiction to cause to be delivered up and canceled any forged deed, though not enforced at the time, which either casts a cloud on the true owner’s title or otherwise subjects him to future liability or present annoyance and the cancellation of which is necessary to his perfect protection.</p> <p>2. An owner of land in possession of it, who resorts to a court of equity to cancel a forged deed as a cloud on his title, is not chargeable with laches, though as much as ten or eleven years may have intervened since his discovery of the forged deed.</p> <p>3. In a petition to cancel a forged deed as a cloud on his title, the plaintiff is not required to allege the perpetrator of the forgery.</p>

<p>Equitable petition. Before Judge Edwards. Polk superior court. August 24, 1911.</p>

<p>Complaint for land. Before Judge Edwards. Polk superior court. December 15, 1911.</p>

<p>Complaint for land. Before Judge Daniel. Fayette superior court. September 29, 1911.</p>

Garnishment. ' Before Judge Fite. 'Whitfield superior court. October 21, 1911. James Near instituted suit against J. N. Stoneeipher to recover damages for an alleged breach of warranty in the sale of land, and thereupon sued out process of garnishment. A summons of garnishment, returnable to the October term, 1909, was issued and was served upon S. ,M. Whaley, who filed his answer at the return term, denying indebtedness to the defendant.

<p>. Complaint. Before Judge Whipple. Dooly superior court. November 6, 1911.</p>

<p>Voucher to defend action. Before Judge Hammond. Biclnnond superior court. September 9, 1911.</p>

Equitable petition. Before Judge Freeman. Coweta superior court. October 31, 1911. On September 5, 1881', William H. Huntley executed a deed to his wife, Martha Caroline Huntley, named as party of the second part.

<p>Complaint for land. Before Judge Thomas. Berrien superior court. September 21, 1911.</p>

<p>Equitable petition. Before Judge Rawlings. Jefferson superior court. October 24, 1911.</p>

<p>1. Equity will decree specific performance of a written conti'act to convey land, wliicli is clear and definite in its tei-ms,</p> <p>2. As a general rale, a vendee of land, before bi'inging his action for specific performance, should tender to the vendor the amount agreed to be paid by him before the execution of the conveyance; but tender by the vendee befoi’e suit is excused if the vendor by declaration or conduct proclaims that if a tender should-be made its acceptance would be l’efused. In the latter instance it is sufficient to offer in the pleadings to pay the amount due, or which may be found to be due by the decree of court.</p> <p>3. Where a coui’t of equity takes jurisdiction for the purpose of decreeing specific pei'formanee, when necessary to give full and pei-fect relief it will, with proper parties before the court, cancel as a cloud over the title a voluntary deed made by the defendant, prior in date to the contract of which specific pei’formanee is sought, which deed is apparently properly executed and recorded, but is void because it has never been delivei'ed.</p> <p>4. The petition set out a cause of action as against a general demurrer.</p>

<p>Appeal. Before Judge Hammond. Burke superior court. October 2, 1911.</p>

<p>Trover. Before Judge Jones. Stephens superior court. November 11, 1911.</p>

<p>Motion to modify judgment on habeas corpus. Before Judge Morris. Pickens superior court. February 17, 1912.</p>

<p>Money rule. Before Judge Daniel. Fayette superior court. January 12, 1912.</p>

<p>1. Where, in a suit by a real estate agent or broker, seeking to recover commissions from his principal on account of the procuring of a purchaser and the refusal of the principal to consummate the sale, it appeared from the petition that the written agreement between the principal and the agent provided for the making of a sale on certain terms, and that the agent procured an offer to purchase on terms different in substantial particulars from those stated in such contract, which the principal declined, the petition was demurrable.</p> <p>2. There was no error in rejecting the proposed amendment.- If in some respects it may have been permissible, it did not cure the variance between the authority given to the agent and the offer of the proposed purchaser.</p>

<p>Trover. Before Judge Walker. Green'e superior court. August 17, 1911.</p>

<p>Action, for damages. Before Judge J. B. Park. Baldwin superior court. January 8, 1912.</p>

<p>Mortgage foreclosure. Before Judge "Worrill. Terrell superior court. August 19, 1911. '</p>

<p>Equitable petition. Before Judge Ellis. Fulton superior court. September 25, 1911.</p>

<p>Action upon bond. Before Judge Ellis. Fulton superior court. January 18, 1912.</p>

<p>1. Estoppel by judgment applies alike to the State as to individuals.</p> <p>(a) A former judgment of the superior court in a case arising upon the same issues and matters as are included in a subsequent suit, between the State and the receiver of an insolvent bank, decreeing the exact sum that the State should recover of the receiver, without specifying whether the sum adjudicated to be due included interest (this sum having been accepted by the State and no exception having’ been taken to the judgment on the ground that it did not include interest), is res adjudicata as to a subsequent suit brought by the State to recover interest of the receiver on the same sum so decreed to be due the State by the former judgment.</p> <p>(6) A single cause of action can not be split up and tried by piecemeal, so as to recover the principal sum in one suit, and interest in another.</p> <p>2. Where a bank has made a contract with the State, whereby it agrees to pay her a certain rate of interest on daily balances on deposit in the bank, belonging to the State, and the bank subsequently becomes insolvent and a receiver is appointed to take charge of its assets, the State can recover of the receiver the principal sum due her and interest at the contract rate to the date of the appointment of a receiver for the assets of the bank, and also seven per cent, per annum as legal interest from the date of the receivership to the date of payment.</p> <p>(a) The State has the right of priority of payment out of the assets of an ' insolvent State bank which prior to insolvency was a State depository, as against individual depositors and creditors.</p>

<p>Complaint for land. Before Judge Boan. BeKalb superior court. September 16, 1911.</p>

<p>Appeal. Before Judge Roan. DeKalb superior court. January 6, 1912.</p>

<p>Action for damages. Before Judge Fite. Murray superior court. October 23, 1911.</p>

<p>Claim. Before Judge Pendleton. Fulton superior court. December 30, 1911.</p>

<p>The verdict in this case was without evidence to support it, and the court erred in overruling the motion for a new trial.</p>

<p>Action for specific performance. Before Judge Bawlings. Jefj ferson superior court. September 4, 1911.</p> <p>A. J. Williams brought a petition against his wife, Mrs. D. F. Williams, for specific performance, praying that she be required by decree to execute and deliver to him a deed of conveyance to 133% acres of land. The land sued for was a part of a tract of land which, as appears from the petition, had, on January 1, 1885, been conveyed by petitioner to his brother, John B. Williams, to secure the payment' of the sum of $2,725, borrowed by petitioner from the grantee in that deed. By payments the 'debt was reduced to $1,375. It is alleged, that; to pay off this balance due said John B. Williams, petitioner procured other persons, Bivers and McNair, to advance the necessary amount to John B. Williams; and to secure Bivers and McNair in the payment of the debt to them, John B. Williams, on January 29, 1894, conveyed to them 200 acres of the land embraced in the deed from petitioner to John B. Williams; and for the same purpose petitioner also conveyed said 200 acres to Bivers and McNair. Bivers and McNair sold oil or retained 66% acres of the 200-acre tract, thereby reducing the debt of petitioner to them to $850. He alleges, that this $850 was paid by the defendant, his wife, to Bivers and McNair “for his use and benefit, and as a loan by defendant to him, and that, instead of having Bivers and McNair convey said 133% acres of land to him directly, for the sake of convenience and to better secure said defendant said conveyance was made directly 'to her.” This last conveyance embraced .the land sued for. Various lots of land have been sold oil from the tract conveyed by Bivers and McNair to the defendant, for sums which in the aggregate amount to more than the principal and interest of the indebtedness of petitioner to defendant. Petitioner has at all times been in possession of the land sued for; and he prays as stated above. Pending this suit the petitioner died, and Lizzie Brown and seven others, alleging that they were all of the children of A. J. Williams, moved that they be made parties plaintiff, as they and the widow were the sole heirs of A. J. Williams, and there was no administration and no debts against the estate. The widow resisted this motion, insisting, that an administrator of the estate of A. J. Williams was the only proper person to be made a party plaintiff; that she was an heir of her husband, and, being in possession of the land, could not be sued by the other heirs for its recovery; that if the land belonged to the estate of the deceased plaintiff, then his widow would be entitled to dower in the same, or to a child’s part; and that she was entitléd to a year’s support from the estate of her husband, and a recovery of the land by the children as heirs at law would defeat her year’s support, so far as this land is concerned, whereas if an administrator should recover it he could be compelled to use it to pay her year’s support. These objections were stricken on motion, and exceptions pendente lite were filed. The defendant died, and her executors were made parties. A trial of the case resulted in a verdict for the plaintiffs, and a motion for new trial was overruled. The defendants excepted, assigning error upon both of the rulings just stated.</p> <p>Cited: Civil Code, §§ 3929, 3933; Kent v. Davis, 89 Ga. 151; Gunter v. Smith, 113 Ga. 18; Eagan v. Gonway, 115 Ga. 130; Belt v. Lazenby, 126 Ga. 767; Marshall v. Pierce, 136 Ga. 543; 22 Am. & Eng. Enc. L. 1065; Buckmaster v. Harrop, 7 Ves. 341; Spier v. Robinson, 9 How. Pr. 315; House v. Dixter, 9 Mich. 246; Webster v. Tibbits, 19 Wis. 438; Buck v. Buck, 11 Paige, 170; Downing v. Risley, 15 N. J. Eq. 93.</p>

<p>Petition for mandamus. -Before Judge Frank Park. Dougherty superior court. September 26, 1912.</p> <p>Certain citizens and taxpayers of Dougherty county filed a petition for mandamus against the jury commissioners of that county, alleging as follows: In the last jury revision, notwithstanding there were more than 1,300 persons from which to select the grand and traverse juries, a large majority of whom were intelligent and upright within the meaning of the constitution of the State, only 262 were selected for jury service; of which number 109 were selected as grand jurors. The last jury-list contained 600 names. Two of the grand jurors selected are disqualified from service, by reason of being county commissioners'; some are members of the Albany Guards, and others are over 60 years of age; and if these exemptions are claimed, the number of grand jurors left will be so small as to make jury service burdensome, as the superior court has two sessions each year, and the city court of Albany convenes monthly, and the proper facilitation of the business of the courts will be hampered. Under the law only two fifths of the persons selected for jury service can serve on the grand jury, and the number selected for the grand jury is in excess of the statutory limit. The persons selected for jury service represent only about one tenth of the property interests of the county, although the grand jury is charged by law with most responsible duties relating to the management of county affairs and fixing the rate of taxation. There were 100 men competent for jury service who were of the Jewish religion, and yet only three were selected; there were 95 men of the Catholic faith, and 100 men of the Episcopal faith, competent for jury service, and only six of the former and five of the latter were selected. Large numbers of citizens competent for jury service are of the Baptist and Presbyterian faiths, and others without church affiliations are qualified for jury service; yet from these bodies selections were made in the same proportion as . were made from the first-named religious sects. Of the jurors selected one third of the traverse jurors and 40 per cent, of the grand jurors are of the Methodist religious sect, which constitutes about eleven per cent, of the citizens of the county. Three of the five jury commissioners are Methodists, and one has a son-in-law who is an active member of that church. “Your petitioners aver, therefore, in view of the foregoing allegations, which they stand ready to prove, that a large number of the citizens of said county, possessing all qualifications required by law for jury duty, have been excluded because they form a class of persons holding to a particular religious belief; your petitioners further aver, in view of the foregoing allegations, that a large number of names placed in said jury-box were included because they form a class of persons holding to a particular religious belief' to wit, the same religious belief and denomination of a majority of said jury commissioners.” Seven of the names of the jurors selected do not appear on the books of the tax-receiver; and on information and belief it is charged that the jury-list was not prepared by the jury commissioners from the tax list, but was prepared from the registration list, and that the revision was done in a perfunctory manner after a comparison with the registration list, from which petitioners charge upon information and belief that the jury commissioners had in advance prepared a list of jurors. “In view of the foregoing allegations your petitioners charge, upon information and belief, that a large number of the citizens of said county were excluded because they entertain views, on' matters not affecting the good order of the community or the preservation of the public morals, different from a majority of the jury commissioners, and that a large number of the names placed in said jury-box was included because they entertain views, on matters not affecting the good order of -the community or the preservation of the public morals, different from those whose names were left out of the jury-box, and who hold views on said matters like a majority of said jury commission.” In view of the foregoing facts and others which petitioners stand ready to prove, the jui’y commissioners have not acted fairly and impartially as required by law, but they have acted arbitrarily and capriciously, and have grossly abused the discretion reposed in them under the law. As an instance of such action, it is shown that none of the descendants of the founder of Albany, and of several other men of prominence in former days, are represented on the jury. All of the acts of the jury commissioners were in'violation of the constitutional provisions, viz., that no person shall be deprived of life, liberty, or property except by due process of law; that every person charged with an offense against the laws of the State shall have a public and speedy trial by an impartial jury; that every man shall have the right to worship God according to the dictates of his own conscience, without interference; that no inhabitant of this State shall be prohibited from holding office or a position of public trust on- account of his religious opinions; that the right of trial by jury shall remain inviolate, and that the General Assembly shall provide by law for the most experienced, upright, and intelligent men to serve as grand jurors, and intelligent and upright men to serve as traverse jurors; and such acts were also in violation of statutes passed in pursuance of the two provisions last stated; and they were further violative of the 14th amendment to the constitution of the United States. It is to be distinctly understood “that the foregoing allegations are not made , or intended to be made as a reflection upon the Methodist denomination.” A demand has been made upon the jury commissioners to meet and revise the jury-list as required by law, and they have failed and refused so to do.</p> <p>At the hearing a general demurrer was sustained, and the petition was dismissed as being insufficient in law. •</p>

<p>Arrest of judgment. Before Judge Pendleton. Fulton superior court. December 27, 1911.</p>

Action upon insurance policy. Before Judge Gilbert. Muscogee superior court. January 29, 1912. Mrs. Stephenson instituted suit as beneficiary of a policy of insurance issued by the defendant company on the life of her husband, E. H. Stephenson. Under the evidence the court directed a verdict for the defendant. Exceptions were taken to this ruling, and to the overruling of a motion for new trial.

<p>Equitable petition. Before Judge Thomas. Glynn superior court. January 1, 1912.</p>

<p>Equitable petition. Before Judge Whipple. Crisp superior court. October 4, 1911.</p>

Equitable petition. Before Judge' Bawlings. Jenkins superior court. December 9, 1911.

<p>Indictment for murder. Before Judge Freeman. Troup superior court. October 5, 1912.</p>

<p>Indictment for murder. Before Judge Boañ. Fulton superior court. August 31, 1912.</p>

Equitable petition. Before Judge Frank Park. Grady superior court. September 6, 1911. The substance of the petition as finally amended was as follows: The plaintiff, J. W. Lane, and the defendant, G. F. Lodge, on September 15, 1910, entered into an agreement to form a partnership for the purpose of conducting a turpentine business.

<p>Injunction. Before Judge Fite. Whitfield superior court. April 10, 1912.</p>

<p>Petition for injunction. Before Judge Jones. Habersham superior court. May 17, 1912.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. , March 13, 1912.</p>

<p>1. There was evidence adduced on the trial from which the jury would have been authorized to find the defendant guilty of voluntary manslaughter, and the court erred in not instructing the jury touching that grade of homicide.</p> <p>2. Under the facts of the case 'the judge should have charged the jury upon the subject of justifiable homicide, and should also by appropriate instructions have allowed the jury to pass upon the question whether or not the killing of the decedent by the accused in this case was one of those instances “which stand upon the same footing of reason and justice as those enumerated.”</p> <p>3. There was evidence which authorized the charge upon the subject of confession. . 1</p> <p>4. The saying of a witness introduced by the State, a short time before the shooting, in reference to his pistol, with which there was evidence tending to show that the witness and not the defendant in this ease had shot the decedent, when a certain person offered to hand the weapon to him, to the effect that it was not loaded, that “there is nothing in it; it is no good now,” was mere hearsay and should not have been admitted.</p>

<p>Indictment for rape. Before Judge Martin. Pulaski superior court. September 30, 1912.</p>

<p>Indictment for murder. Before Judge Daniel. Monroe superior court. October o, 1912.</p>

<p>1. A decree of divorce in another State, in which the custody of the cliil:’ is awarded to the father, is conclusive as between tlie parties to tlie decree as to his right and fitness for such custody at that time, but is not conclusive for all time. In a subsequent proceeding by habeas corpus for tlie possession of tlie child, between the parties to the decree, evidence as to the unfitness of the father will be confined to matters transpiring subsequently to the decree.</p> <p>2. Where a deci’ee of divorce in another State gives the possession of the child to the father, and there is no inhibition against his removal from the State or carrying the child beyond the jurisdiction of the court, and the father removes to another State, taking his minor child with him, and there acquires a domicile, the court of the State rendering the judgment of divorce is without jurisdiction to reform the judgment so as to change the status of the child and award it to the other party to the decree.</p> <p>(а) A judgment of another State without jurisdiction may be collaterally attacked.</p> <p>(б) The authority of a court to issue and serve process is restricted to the territory where issued, and the court lias no power to require persons not within such territory to appear.</p> <p>3. The evidence examined, and found to be insufficient to show that since the decree the child has been mistreated or neglected, or that the father is an unfit person.</p> <p>4. It is not competent for a witness in a habeas-corpus case involving the possession of a child to state that in his opinion it is for the best interest of the child that its custody be given to one of the contending parties.</p>

<p>Petition for mandamus. Before Judge J. B. Park. Morgan superior court. September 13, 1912.</p>

<p>Complaint. Before Judge J. B. Park. Hancock superior court. March 28, 1912.</p>

<p>Petition for injunction. Before Judge George. Crisp superior court. September 28, 1912.</p>

<p>Petition for injunction. Before Judge Frank Park. Turner superior court. June 7, 1912.</p>

<p>Petition for injunction. Before Judge Parker. Ware superior court. July 6, 1912.</p>

<p>1. A judgment rendered by the Court of Appeals on a matter within its jurisdiction is conclusive upon the parties thereto, and its correctness can not be called in question by a writ of habeas corpus.</p> <p>2. An unsuccessful plaintiff in error who makes a motion for a rehearing agreeably to the rules of the Court of Appeals is not denied due process of law because that court amends its opinion filed in support of the judgment, without first granting a rehearing, by incorporating therein a ruling inadvertently omitted, which omission was brought to the attention of the court by the motion to rehear.</p>

<p>Officials of a county in which one is arrested on a bench-warrant issued from another county have no authority to admit to • bail the person arrested.</p>

<p>Habeas corpus. Before Judge Boan. DeKalb superior court.October 5, 1912.</p>

The Court of Appeals certified the following questions: “An ordinance of the City of Cordele laid a tax of $100 for revenue purposes upon every telegraph company doing business in the City of Cordele, or, in lieu thereof, required each of such companies to pay $2. for each and every pole used in the city limits. The Postal Telegraph-Cable Company, having failed to pay the tax, was adjudged guilty and sentenced to pay the penalty prescribed in another ordinance of the city.

Equitable petition. Before Judge Bell. Fulton superior court. October 21, 1911. James S. Floyd filed a petition against H. K. Kieklighter and others, seeking, among other .things, the dissolution of an alleged partnership, and the recovery of a judgment against Kieklighter for one half of the profits of the partnership. The presiding judge dismissed the case on general demurrer, and the plaintiff excepted.

<p>Equitable petition. Before Judge Sbeppard. Effingham superior court. January 12, 1912.</p>

<p>Petition for injunction. ' Before Judge Jones. Jackson superior court. January 6, 1912.</p>

<p>Petition for injunction. Before Judge Frank Park. Decatur superior court. September 18, 1912.</p>

<p>Injunction. Before Judge Parker. Pierce superior court. June 8, 1912.</p>

<p>Complaint for land. Before Judge Daniel. TTpson superior court. January 4, 1912.</p>

<p>Equitable petition. Before Judge Frank Park. Grady superior court. September 7, 1911.</p> <p>The Hand Trading Company filed an equitable petition against Leon Chason, as administrator of the estate of D. W. Chason, deceased, and the heirs of the deceased, alleging in substance as follows: Three persons of the name of Barton were indebted to one Bawles for the purchase-money of certain land. They procured a loan of money from D. W. Chason, in order to pay such indebtedness, and gave him notes therefor, falling due in annual installménts. They caused Bawles to make a deed to Chason, who executed a bond for title to them, conditioned to make a title upon the payment of the notes described. The Bartons, the obligees in the bond, transferred it for value to J. S. E. Wilder, by a written assignment thereon, on or about November 2, 1906. The transferee went into possession, and the obligor dealt with him as the equitable owner, and looked to him for the payment of the notes. Wilder remained in possession until about January 1, 1909, when Chason took possession without Wilder’s consent ánd against his protest, and remained in possession until Ohason’s death. Since then his administrator has had possession. None of the indebtedness has ever been paid. Chason brought suit upon one of the two notes maturing in October, 1906, and obtained judgment on February 14, 1908, for the principal, interest, attorney’s fees, and costs. On January 21, 1911, Wilder, for value, sold and assigned to the plaintiff all of his right, title, and interest in the bond for title and in the property described in it. (A copy of this transfer was attached to the petition, and showed that it was not entered on the bond, but was made upon a separate paper and attested and recorded like a deed.) On February 11, 1911, the plaintiff by its attorneys tendered to the administrator of Chason and his attorney the full amount of principal, interest, attorney’s fees, and cost due on account of the indebtedness described. The tender was refused. Independently, and not as a condition, the plaintiff demanded a conveyance of the property, and this was refused. When the Bartons procured the loan of Chason, in addition to the notes described in the bond, he required them to give him an additional note for $25, which bore a different date, although given at the same time. This was an additional charge for the use of the' money, and rendered the transaction usurious and the deed executed by Kawles to Chason as a security void. The prayers were, that, if the loan should be found to be usurious and the deed from Kawles to Chason void, the administrator should be decreed to accept the tender above stated, and the title to the property should be decreed to be in the plaintiff, and that-it should recover possession; that if the loan should be found not to be usurious, the administrator be decreed to accept the tender, and to specifically perform the contract contained in the bond for title, by conveying the land to the plaintiff; or that the security deed be decreed to be satisfied;, and that, upon paying the money into the registry of the court, the plaintiff be decreed to have title to the property, and to recover it; that the plaintiff have an accounting, if necessary; and for process and general relief.</p> <p>On demurrer the judge struck the allegations of usury in the original loan. The case proceeded to trial, and he rejected evidence tending to prove such usury. He also admitted in evidence, over objection, the agreement between Wilder and Chason which is described in the opinion. At the close of the evidence, he directed a verdict for the defendants. The plaintiff excepted and assigned error on these various rulings.</p>

<p>1. There was no merit in the motion to dismiss the writ of error as to one of the parties defendant thereto.</p> <p>2. A merchant sold his stock of goods in. bulk, and furnished the purchasers with a verified list Of his creditors, as required by the Civil Code, § 3226. A debt due by him for a piano was not included in the list. A note given by him for the debt was sent by the creditor to a member of a firm of attorneys for collection. He filed against the debtor a petition in involuntary bankruptcy in the name of this and other creditors. . An agreement was made that this debt would be paid from the purchase-money of the stock. The attorney presented to the judge a petition, reciting that the proceeding in bankruptcy was instituted under a mistake of fact, in that it was alleged that the debtor was insolvent, when in fact he was solvent; and thus the attorney obtained an order allowing the proceeding to be withdrawn. The debt was alleged to have been paid to the firm. They failed to pay the money to the client on demand. To a rule brought against them they filed pleas that the State court was without jurisdiction. Held, that the superior court had jurisdiction of a proceeding by rule to compel the attorneys to pay the money to their client.</p> <p>(a) Under the facts above stated, the money was not collected under process issuing from the Federal court; and the decision in Wilkinson County V. Lindsey, 106 Ga. 25 (31 S. E. 792), has no application.</p> <p>(Z>) A finding in favor of the pleas was contrary to law.</p> <p>3. A rule was prayed against a firm of attorneys and each of its members, requiring them to show cause why they should not pay to their client money alleged to have been collected by them. The firm and each member filed pleas to the effect that the Federal court, not the State court, had jurisdiction. The case was, by agreement, submitted to the judge on law and facts without a jury. He found in favor of the pleas. A motion for a new trial was made. In the original motion the caption named the firm in stating the case. Attorneys representing the firm and each member acknowledged service. Held, that a motion to dismiss the motion for a new trial on the ground that it was directed against the firm, and a firm could not be an officer of court, was properly overruled.</p> <p>4. Where a ease is by agreement submitted to the presiding judge without a ■ jury, both on law and facts, upon his finding a motion for a new trial can be made.</p>

Complaint. Before Judge Eawlings. Screven superior court. November term, 1911. John W. Dickey brought suit on April 25, 1911, in Screven superior court, against E. T. Comer, alleging that the defendant had failed to comply with his obligations under the contract herein-below set forth, and praying for an accounting. “Georgia, Chatham County.

<p>1. Where under the provisions of the Civil Code, § 5385, proceedings were instituted by the making of an affidavit .to evict a tenant holding over, and by counter-affidavit the defendant set up the defense that “the rent claimed is not due,” and the evidence showed a lease by the plaintiff to the defendant, and that the defendant had not surrendered the premises to the lessor, but had given possession thereof to another person, which person was in possession of the land at the time of the institution of the proceedings to evict, evidence of payment of the rent, after tlie expiration of tlie term of the lease to tlie defendant, to other parties, and not to the plaintiff, could not establish the defense set up in the counter-affidavit.</p> <p>2. Evidence tending to show that the parties to whom the defendant had given possession of the rented premises had paid rent to another party, thus attorning to another instead of to the plaintiff, was not admissible under the pleadings in tlie case.</p> <p>3. The court below did not err in ruling out the oral evidence of the contents of a paper which was accessible to the parties, and which, if relevant, could have been introduced in evidence.</p>

<p>The judge to whom the case was submitted for decision without a jury committed error in entering judgment for the claimant and ordering the levy dismissed.</p>

<p>Injunction. Before Judge Bell. Fayette superior court. September 16, 1912. ■' .</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. May 30, 1912.</p>

<p>Motion to transfer case to docket of this term.</p>

<p>Complaint for land. Before Judge Rawlings. Jenkins superior court. July 18, 1911.</p>

<p>1. Where, in an equitable action, a judgment was rendered which was conceded to be final in its nature as to some of the parties, though the case was held open for further action, and a party which was interested in the result of such decree excepted thereto, and also to the overruling of a motion to dismiss it from the case, a motion to dismiss the writ of error, on the ground-that the case was prematurely brought to this court, will be overruled.</p> <p>2. Where an equitable proceeding was filed against several defendants, and one of- them demurred thereto generally and because there was a misjoinder of parties and causes of action, and, upon the overruling of such demurrer, excepted and brought the question so raised to this court for review, leaving the case still pending in the superior court, the filing of such a bill of exceptions and of a bond payable to the plaintiff, conditioned to pay the eventual condemnation-money and all future costs, did not of-itself operate to stay further proceedings in the trial court. The presiding judge, in the exercise of a sound discretion, could have delayed further proceedings until the decision of this court was rendered, or he could have caused the case to proceed, subject to such results as might follow from the decision which this court might render on the exception to the overruling of the demurrer of such party.</p> <p>3. Section 5127 of the Civil Code authorizes the judge of the superior court, in an equitable action, if the case shall require it, to refer any part of the facts to an auditor.</p> <p>4. But where the ground on which a defendant is held as a party, in spite of a demurrer interposed by him, is that there is a common interest in certain questions, and that they should be determined in one action as to all parties, so as to save a multiplicity of^ suits, the statute does not contemplate that such questions may be segregated and passed on only as between other parties than the demurrant, and without opportunity for him to be heard, although his exception to the overruling of a demurrer is pending in this court.</p> <p>5. While the bill of exceptions of the bonding company, complaining of the refusal to sustain its demurrer, was pending in this court, a part of the case, including the question of the validity of liens claimed by certain persons, having been referred to an auditor, and the bonding company having declined to participate in the proceedings before him, and, after affirmance of the judgment overruling the demurrer, having moved for an order for an .enlargement of the reference to the auditor, and then having withdrawn the motion (the motion to withdraw stating that it was “without prejudice”), there was no error in overruling a motion, made after the auditor’s report had been filed, to recommit the case to him, or a motion to declare the entire proceeding before the auditor to be a mere nullity.</p> <p>(a) The order of reference to the auditor of issues other than those “arising directly between the petitioner and the defendant, the Massachusetts Bonding & Insurance Company,” is not construed as an attempt to refer the question of the existence of liens to be determined as between some parties to the case, but so as not to have any effect upon other parties interested in the same subject-matter; but such reference is construed as reserving the direct issue of liability over, as between the plaintiff and the bonding company, the surety of the contractor.</p> <p>6. A part of the case involving the existence and validity of liens in favor of claimants thereof having been referred to the auditor, and the bonding company having an interest in the result of the determination of that question, it was entitled to appear and be heard in regard thereto. And although it declined to participate in the proceedings before the auditor, and therefore could not except to such interlocutory rulings by him as to the admission or rejection of evidence, as to which it raised no question and invoked no ruling by him, yet it was entitled to file exceptions to the auditor’s report on the ground that his final findings of fact or of law (other than as above stated) were erroneous and injurious to it. It was accordingly error to dismiss as a whole exceptions so filed, without passing upon their merits, on the ground that such party had no right to file them.</p> <p>7: By section 5148 of the Civil Code it is declared that the fees of an auditor shall not exceed $1,000. An agreement by some of the parties to a ease that the auditor shall have a fee in excess of that amount can not affect the rights of another party to the case who does not so agree.</p> <p>(ct) An order having been passed purporting to be a consent order, but which in fact was not assented to by one of the parties, fixing the amount of the auditor’s fee at a sum in excess of the amount provided by the statute, and reserving the taxation of the fee as costs “as between the parties hereto,” it would seem that the intention was not to include in or affect by such order the party who did not consent. But that it may be made clear that such party shall not be affected therein-, direction is given that the order shall be so amended as to expressly declare that it in no way adjudicates or affects any rights of that party, and that its status remains as if no such order had been passed.</p> <p>8. The case of the Realty Trust Company ®. Clayton et al. is so interwoven and connected with that which has been determined by the preceding headnotes, that it is impracticable to deal with it as if it were an independent and disconnected litigation. The Realty Trust Company filed exceptions to the auditor’s report, and also objected to the court’s proceeding to a final decree as against it without determining the exceptions filed by the bonding company, but the case proceeded in that manner nevertheless. It was not ripe for such final decree to be entered.</p> <p>(a) Direction is given accordingly, that the decree entered be set aside, and also the order overruling the exceptions of the Realty Trust Company; that the case be reheard upon the exceptions to the auditor’s report filed by that company, and also by the bonding company; and that proceedings be had in accordance with the statute.</p>

Action for damages. Before Judge Frank Park. Turner superior court. December 29, 1911. Joe Hancock, by his next friend, brought suit against the J. S. Betts Company, in which he sought to recover the sum of $20,000 damages for certain personal injuries alleged to have been sustained by him, while working for the defendant as an employee, by reason of the negligence of the defendant, its superintendent and agents.

<p>Equitable petition. Before Judge Whipple. Crisp superior court. December 22, 1911.</p>

<p>Mortgage foreclosure. Before Judge Thomas. Berrien superior court. September 18, 1911.</p>

<p>1. The act of August 16, 1909 (Acts 1909, p. 1183), as amended by the act of August 13, 1910 (Acts' 1910, p. 953), described a considerable rural territory in Pulaski county, declared it to be incorporated as “the Town of Mitchell’s District,” and conferred on a board of school trustees power to establish and maintain a system of public schools therein in a manner different from that provided by the general school laws, but prescribed no municipal duties or powers other than the maintenance of such schools, save in the general statement that the corporation should be styled by the name stated, “with all the powers, duties, and privileges usual to municipal corporations.” Jurisdiction over roads was negatived, and no power of taxation was given except to the trustees for school purposes. ■ Held, that such act, as amended, was unconstitutional as. seeking to create a special school district, where provision had been made for the creation of such districts by general law.</p> <p>2. Such an act as that above described did not come within the provision of the constitution which declares that authority may be granted by the legislature to municipal corporations, “upon the recommendation of the corporate authority, to establish and maintain public schools • in their respective limits by local taxation;” and this is true though the act provided for a submission to the voters of the district of the question whether they would ratify.or refuse to “ratify the act.”</p> <p>(a) Under the preceding ruling, it is unnecessary to decide whether the clause of the constitution just quoted authorized the creation of a municipal corporation and the conferring by the act creating it of power to establish public schools, subject to an election, or whether the words “upon the recommendation of the corporate authority” contemplated an existing corporate authority to make such recommendation before the power to establish schools was granted.</p> <p>3. Where an execution for a school tax under such an act was levied by a constable, an equitable petition praying that the constable be enjoined from enforcing the execution, and that the defendants, other than the constable, be enjoined from exercising any powers under the act, was not subject to dismissal on demurrer, on the ground that it made the persons claiming to act as school trustees defendants in their individual and not their official capacities.</p>

<p>Complaint for land. Before-Judge Walker. Glascock superior court. October 18, 1911.</p>

<p>1. Under the statutes of Alabama, the probate court of the county of a decedent’s last residence has jurisdiction to grant letters of administration, without notice or citation, to certain classes of persons in a stated order of priority; the husband or widow being given the first preference. If neither husband or widow, next of kin, nor largest creditor residing in the State applies for letters of administration within forty days from the death of the decedent, the judge of probate may appoint some other person as administrator. The jurisdiction of the court of probate to grant letters of administration by virtue of these statutes, as interpreted by the Supreme Court of Alabama, depends not on the selection of the person to be clothed with the trust, but on the authority of the particular court to appoint a personal representative on the estate; and the grant of administration within forty days after the. death of the intestate to a person who has not a preferred right is premature, but it will not be revoked on that account at the instance of a person who had a prior right, but who did not make his application until after the expiration of forty days. It follows, therefore, that the grant of administration by the court of probate of the county of the last residence of an intestate to a person not included within the preferred classes, within forty days of the death of the intestate, is not void, even though the administration of the estate is granted to such person upon the relinquishment of the right of one who represented herself to be the widow of the decedent, but who in fact was not his widow.</p> <p>2. The statutes of Alabama pertaining to the grant of administration upon the estate of deceased persons, without notice or citation to heirs and creditors, contain reasonable provision for the distribution of such estates, and do not offend the due-process clause of the Eederal constitution.</p> <p>3. A judgment of a court of probate of the State of Alabama, granting letters of administration, rendered by a court having jurisdiction of the subject-matter, and apparently legal on its face, when offered as evidence in a cause pending in this State, can not be collaterally impeached for fraud.</p> <p>4. The plea of res adjudieata was sustained, and the verdict is contrary to law.</p>

<p>.. Indictment for murder. Before Judge Meadow. Madison superior court. October 26, 1912.</p>

<p>Indictment for murder. Before Judge Bawlings. Jenkins superior court. October 28, 1912.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. October 18, 1911.</p>

<p>Injunction. Before Judge Thomas. Brooks superior court. June 14, 1912.</p>

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

<p>Action for damages. Before Judge Jones. Habersham superior court. August 15, 1911.</p>

<p>Petition for specific performance. Before Judge Thomas. Brooks superior court. November 11, 1911.</p>

<p>Trover. Before Judge Martin. Pulaski superior court. October 2, 1911.</p>

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

<p>Libellant obtained, a decree of divorce in the chancery court of Louisville, Kentucky, in which an adjudication of the right to alimony was expressly reserved. Subsequently the defendant removed to this State, and she instituted against him a suit to obtain alimony. Afterwards judgment was entered in the Kentucky court on the divorce decree, allowing alimony. The libellant then brought suit in this State on the Kentucky judgment, and the defendant pleaded in abatement of the action the pendency of the suit for alimony. Held, that the plea in abatement is not good, as the respective causes of action are not the same.</p>

<p>1. Tlie specific grounds of a general demurrer may be amplified by an ■ amendment which states them more fully, at a term subsequent to the appearance term.</p> <p>2. A judgment sustaining the return of processioners on an i^sue made by a coterminous landowner as to the location of a division line concludes the protestant from disputing the line marked out by the processioners as the true line, and any invasion thereafter across the line thus established, and upon the land of the adjacent owner, by the protestant, would amount to a trespass. If the trespasses be continuous, they may be restrained by injunction.</p> <p>3. A litigant who suffers an adverse judgment, and who in open defiance of the judgment continues to annoy and harass his adversary respecting the subject-matter of the litigation included in the judgment, is acting in bad faith. In a suit to enjoin further interference with the rights of the successful party to the judgment, attorney’s fees may be recovered under the Civil Code, § 4392. However, counsel fees incurred in procuring the original judgment are not to be included.</p> <p>4. Under the allegations of the petition, punitive damages, under the Civil Code, § 4504, are not recoverable.</p>

<p>Under the provisions of § 3546 of the Code, a surety upon a note may, at any time after a debt on which he is liable becomes due, give-notice in writing to the creditor or. Ms agent to proceed to collect the same out of the principal; and if the creditor to whom such notice is given fails to commence an action for the space of three months after the 'notice, the surety will be discharged. But where for value received the surety consents that the creditor “may grant any extension on the note that he deems proper,” the surety can not, by giving the notice contemplated in the statute, revoke his consent allowing the extension of time, and be discharged from liability on the note, merely because' of a failure on the part of the creditor to commence an action against the principal debtor within the period of three months.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. November 24, 1911.</p>

<p>Injunction. Before Judge Martin. Pulaski superior court. August 13, 1912.</p> <p>Mrs. J. J. Lanfair filed her petition against the City of Cochran and its marshal, alleging in substance as follows: The City of Cochran issued a fi. fa. for municipal taxes for the year 1911, including therein $17.91 tax fo,r general municipal expenses, $11.02 school tax, and $9.64 bond tax. The marshal has levied the execution on certain described land, and has advertised the property for sale before the door of the county court-house in Hawkinsville. Unless enjoined he will sell it for the taxes thus assessed against the plaintiff, with interest thereon. The execution is proceeding illegally, and the sale will be void, for the following reasons: (1) “Said levy is excessive, and petitioner alleges that the value of the real estate described is far in excess of the amount of the fi. fa., said property being worth the sum of $500, and it is easily divisible, and capable of being sold in small tracts, suitable for building lots. It is shown that said property is located within one fourth mile from the center of said corporation limits, and is of large value for building purposes.” (2) The execution is illegal and proceeding illegally, because the tax levy on which it is based is illegal. Such levjr includes a tax of six and one half mills for the purpose of meeting the general expenses of the city; that is, for current or ordinary expenses. In addition thereto the city has levied, for the year 1911, a tax of four mills for the purpose of meeting the expenses of a free public-school sj'stem, and also an additional tax of two and one half mills for the purpose of creating a sinking fund for the payment of the principal and interest of its bonded indebtedness,—the two latter items of taxation being for purposes known as extraordinary. The city is attempting to collect taxes of six and one half dollars on the one thousand dollars of assessed valuation of property for current and ordinary expenses of the municipality, and also an additional sum of six and one half dollars on the one thousand dollars of property valuation for expenses other than the current or ordinary expenses, and known as extraordinary expenses. This is in violation of the laws of the State, and.especially of paragraphs 2 and 3 of section 865 of the Civil Code, in that the levy and assessment of the tax for extraordinary expense was not separately made and collected, and said fi. fa. is proceeding for the collection of the entire tax of said municipality, as well for extraordinary as ordinary expenses. (3) Plaintiff alleges that the marshal of the City of Cochran is not authorized to sell the property before the court-house door in the City of Hawkinsville, and by virtue of his office has no authority beyond the limits of the City of Cochran, and the contemplated sale would be illegal and void. (4) The advertisement of the sale is being published in a newspaper published in the City of Hawkinsville; 'and if the marshal had the authority to make the sale of the property, the advertisement is proceeding irregularly, and the sale thereunder would be void. It would cast a cloud upon the title of plaintiff, and would involve the title in litigation, and give rise to a multiplicity of suits, and cause irreparable damage. It was prayed that the City of Cochran and its marshal be permanently enjoined from selling the property by virtue of the tax levy and the execution based thereon.</p> <p>The defendants demurred to the petition generally, and also specially demurred to the allegations in regard to the amount of the assessment for ordinary and extraordinary expenses, 'and those setting up that the levy and assessment of the tax for each extraordinary expense was not separately made and collected. The demurrer was overruled, except as to the allegations touching the want of separation in the levy. As to these it was sustained.</p> <p>When the case came on for trial, a judgment was entered which recited that, the. allegations in the petition “having been admitted by defendants,” a permanent injunction was granted. The defendants excepted.</p>

<p>Complaint. Before Judge Whipple. Irwin superior court. December 30, 1911.</p>

<p>Complaint for land. Before Judge Walker. Wilkes superior court'. November 10, 1911.</p>

<p>Receivership. Before Judge Maddox. Floyd superior court. August 7, 191?.</p>

<p>Petition, for injunction. Before Judge Bell. Fulton superior court. September 13, 1912.</p>

<p>In an action against an individual for causing the plaintiff to be taken into custody on a charge of felony, evidence affording reasonable and probable cause of suspicion of the defendant’s guilt is admissible in mitigation of damages.</p>

<p>Libel for divorce. Before Judge Maddox. 1 Floyd superior court. January 2, 1912.</p>

<p>A real estate broker brought suit against two defendants, alleging in brief as follows: The defendants represented that they were the owners of certain described real estate, and authorized him to sell it, agreeing to pay him a commission of five per cent, on the first $2,000 of the ‘ purchase-price, and two and one half per cent, on the price in excess of that amount. Plaintiff secured a written offer from certain named persons, who agreed to pay a stated amount on certain named terms. The defendants accepted the offer in writing, and agreed to pay him commissions. There were no duties or obligations devolving upon him, ■other than to secure purchasers ready, willing, and able to buy upon the terms stipulated by the defendants, “which petitioner did;” but the defendants refused to pay the commissions, stating that the trade did not go through. Seld, that the petition was good as against a general demurrer.</p>

<p>Equitable petition. Before Judge Thomas. Brooks superior court. November 10, 1911.</p> <p>Mrs. Mary A. Bentfroe filed her petition against S. S. Bountree. for the purpose of canceling a deed made to the defendant in 1905. She alleged that it was made for the purpose of securing an indebtedness of her husband, due to the grantee as surviving partner of Bountree & Company. The ■ defendant denied the substantial allegations of the petition. On the trial the evidence on behalf of the plaintiff showed, in brief, as follows: Bentfroe was indebted to Bountree as surviving partner several hundred dollars. In 1888 he went to Bountree to borrow $265 or $300 more, for the purpose of going into a mercantile business at a certain place. Bountree jmoposed that he would let Bentfroe have the money if the amount loaned and the past indebtedness were added together and notes were made for the whole, and Bentfroe should get his wife and aunt to sign them with him. This was done and the notes were given. Each of these notes included the statement that certain land was conveyed to secure its payment, with a power of sale on failure of payment. This land had originally belonged to the aunt of Bentfroe, Mrs. Thigpen, but had been conveyed by her to Mrs. Bentfroe by a deed dated 1876, though not recorded until 1891. Bentfroe received every cent of the money advanced, and none of it went to his wife. In 1905 an attorney for Bountree wrote to Mrs. Bentfroe, threatening to sue on the notes if they were not paid. Bentfroe desired more time. He and his wife agreed with Bountree that she would make a deed to the land, and that Bountree would make a bond for title to their son, T. A. Bentfroe, and take his notes for the ajnount of the indebtedness, payable in installments. The papers were executed accordingly. Mrs. Bentfroe testified that she understood that the bond for title was to be made to all of her children, and not to T. A. Eentfroe alone. After the papers were executed the family lived on the place as before. The sons of Mr. and Mrs. Eentfroe cultivated the land’. No rent was paid to T. A. Eentfroe by the other members of the family, but he received some of the crop. T. A. Eentfroe paid to Eountree a small amount. Afterward he moved away from the land and abandoned the transaction. He gave as his reason that he found the bond for title was only to give him a quitclaim deed.</p> <p>Eountree’s testimony did not materially conflict with that of the plaintiff as to the actual occurrences. He stated in general terms that the consideration of the notes made in 1888 was in part for money which he let Mrs. Thigpen, Mrs. Eentfroe, and Mr. Eentfroe have, and in part the prior indebtedness of Eentfroe. He thought he let them have about $300 at that time. “Mr. Eentfroe had come down and wanted some money, and witness told him that he would loan it to them if they would sign these papers. He thought that some of Eentfroe’s accounts were in the notes.” He stated that over $300 had been paid on the notes, “may be $400.” He did not remember where he had put the credits for the amounts which had been paid, but thought that Eentfroe had paid more than enough to pay his individual debt. “In 1905 he had some inkling 'about Mrs. Eentfroe wanting to claim the land; he turned over the note to Mr. Bennett to sue; he supposed that Bennett had notified them; anyhow, Mrs. Eentfroe and Eentfroe came to see him, and he did just what they asked him to do; they asked him to take T. A. Eentfroe’s notes for the amount they were owing to him, and give them four or five years.” He never commenced any lawsuit, but still retained the original notes. When asked, “What became of that money?” he answered, “Mr. Eentfroe went in business in Dixie with it; did not know whether Eentfroe got the money then or not; didn’t think he did; witness did not know who the land belonged to; did not know whose property it was.” On cross-examination he testified as follows: “Mr. Eentfroe came to see witness first in regard to borrowing the $300; thought Mr. Eentfroe told him he wanted this money to go in business at Dixie; could not state positively about that. Eentfroe came before Mrs. Thigpen and Mrs. Eentfroe came. He did not think he paid the money to Mrs. Eentfroe. Eentfroe came first to borrow the money, and witness thinks he was going into business, but could not state positively.”</p> <p>At the close of the evidence, the presiding judge directed a verdict in favor o'f the plaintiff. The defendant excepted.</p>

<p>Petition for specific performance. Before Judge Bell. Fulton superior court. October 27, 1911.</p>

<p>Petition for specific performance. Before Judge Bell. Fulton superior court. October 27, 1911.</p>

Equitable petition. Before Judge Charlton. Chatham superior court. November 16, 1911. E. W. Bell and Eldred Simkins instituted an action against the Mayor and Aldermen of the City of, Savannah to enjoin an alleged nuisance. On demurrer to the petition 'the case was dismissed, and the plaintiffs excepted.

<p>Action for damages. Before Judge Fite. Dade superior court. September 13, 1911.</p>

<p>1. It is error to instruct the jury that they “may believe that witness or those witnesses who have the best means of knowing the facts about which they testify and the least inducement to swear falsely,” without a qualification that the witnesses in all other respects are' found to be equally credible.</p> <p>2. In an action founded on a statute authorizing a husband to recover for injuries to his wife, causing temporary loss of her society, and for expenses incurred in alleviating her injuries, testimony that the husband had expended a given sum of money during his wife’s illness on account of her injuries is not objectionable on the ground that such amount embraced necessary subsistence for which the husband would have been liable independently of the wife’s injury.</p> <p>3. No motion was made to reject the interrogatories of a witness, when offered at the trial, on the ground that the commissioner who executed them was related to one of the plaintiff’s counsel, whose compensation was dependent on a recovery. The evidence submitted on the motion authorized an inference that counsel for defendant had knowledge that the fee of plaintiff’s counsel was contingent, and that the commissioner was related to him. It was therefore in the discretion of the court to refuse a new trial on this ground.</p> <p>4. As another trial is to be had, it is unnecessary to notice the criticism, largely verbal, upon the court’s summary of the defendant’s contentions.</p>

Equitable petition. Before Judge Bell. Eulton superior court. October 27, 1911. The substance of the allegations of the petition of W. P. McArthur against Mrs. Mattie Jordan and others is as follows: In February, 1891, James T. Jordan of Fulton county died intestate, seized and possessed of a described tract of land containing 76 acres, more or less, situated in said county.

<p>Equitable petition. Before Judge Bell. Fulton superior court. October 20, 1911.</p> <p>Covington brought an action against John E. McClelland, E. A. Hargrove, C. W. Mangum as sheriff,- and W. A. Hargrove as administrator of the estate of Hattie E. Covington, deceased. There was no service as to McClelland and E. A. Hargrove. The substance of the petition as amended, so far as it needs to be now stated, was as follows: -Petitioner, being indebted to a bank to the amount of $360, and desiring to have it paid, entered into 'an agreement with his wife, Hattie E. Covington, and her father, F. A. Hargrove, in accordance with which petitioner conveyed to his wife a certain described house and lot in the city of Atlanta, then owned and occupied by petitioner, his wife, and their children as a home. She subsequently, in pursuance of such agreement, borrowed from her father, F. A. Hargrove, the sum of $350 with which to pay the debt which petitioner owed the bank. She gave to her father her several promissory notes for the amount loaned by him to her, and executed and delivered to him a deed to the house and lot above referred to, as security for the payment of her notes, he giving to her a bond to reconvey the property to her upon the payment of the notes; “ . .it being the understanding, that when petitioner paid back the said borrowed money loaned by the said F. A. Hargrove to Hattie E. Covington, that petitioner’s wife, the said Hattie E. Covington, was to make petitioner a deed reconveying to him said property.” The property, at the time petitioner conveyed it to his wife, was worth $2,500. While the consideration stated in such conveyance was $350 and love and affection, there was in truth no consideration other than the purpose of placing the title to the property in petitioner’s wife in order that she might use it as security in obtaining the loan from her father, with which to pay petitioner’s debt to the bank. Petitioner’s wife died prior to the maturity of the notes she gave her father, and her brother, W. A. Hargrove, was appointed as the administrator of her estate, which was insolvent. F. A. Hargrove obtained judgments in a justice’s court, on the notes given him by petitioner’s wife, against W. A. Hargrove as the administrator of her estate. The executions were levied upon the house and lot, the petitioner, as tenant in possession, being duly notified thereof, and the property was regularly sold under such levies by Mangum, sheriff, to McClelland for $1,550. The petition alleged that both F. A. Hargrove and W. A. Hargrove fully understood all of the arrangement and undertaking as to the real purpose of the conveyance by petitioner of his house and lot to his wife, and of the conveyance by her -to F. A. Hargrove; and there was a general allegation that F. A. Hargrove and W. A. Hargrove, “after her death, formed a conspiracy to defraud your petitioner out of his said house and lot.” The prayers were, that McClelland be.enjoined from paying to Mangum as sheriff, or to W. A. Hargrove as administrator, any of the proceeds of the sheriff’s sale, other than the sum of $360 with interest; that Mangum, sheriff, be enjoined from paying to W. A. Hargrove, administrator, ■any more of the proceeds of such sale than the sum above mentioned, and that W. A. Hargrove as administrator be enjoined “from paying out any money arising from the sale of this property,” and that he '“be required to pay over to plaintiff the amount of said sale of said land, with the exception of the sum of $360 and interest, which plaintiff admits that he owes said administrator.” There was also a prayer for general relief. It appeared from an amendment allowed to the petition, that the balance of the money arising from the sale of the property by the sheriff, after satisfying the executions under which it was sold, had been paid over by him to W. A. Hargrove, administrator.</p> <p>W. A. Hargrove, as administrator, demurred generally and specially to the petition. The demurrers were overruled, and he excepted.</p>

<p>1. Where an affidavit of illegality and the execution have been returned into court, under the Civil Code, § 5307, it is the duty of the court to determine “thereon” at the first term, unless the plaintiff or his atr’ torney desires to controvert the facts contained in the affidavit. In that event an issue shall be joined, and tried by a jury. The proper method of joining issue is in writing; and where objection is made by the attorney for the affiant to proceeding to the jury in the absence of any traverse’or issue joined or tendered, it is error for the court to overrule the objection merely because the attorney for the plaintiff states orally that he joins issue.</p> <p>2. Where an affidavit of illegality contains allegations of fact in the nature of affirmative defenses, upon issue joined the burden of establishing them rests on the affiant.</p> <p>3. The ground of illegality which set up that some part, of the costs was not properly taxed against the affiant was so vague and indefinite as to show no reason why such taxation was illegal, and was properly stricken.</p>

<p>Action for damages. Before Judge Ellis. Fulton superior court. November 15, 1911.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. January 9, 1912.</p>

<p>Injunction. Before Judge Thomas. Berrien superior court. June 5, 1912.</p> <p>The Henderson Naval Stores Company filed its petition against M. Rowe, alleging: that it was the owner and holder of the legal title to all the timber suitable for turpentine purposes upon lot of land number 508 in the 6th district of Berrien county, said lot containing 490 acres, more or less; that on or about February 1, 1912, the defendant, M. Rowe, entered upon the described land and began to cut, deaden, and destroy all the pine timber suitable for turpentine purposes growing and being upon the land; that Rowe was insolvent and unable to respond in damages to any judgment which petitioner might obtain against him for the damages which he had done, and would do, if not restrained; that he had no legal right, title, or claim to the timber and no authority to enter upon the land, etc.; and that damages would be irreparable unless the defendant was restrained. The prayer was for injunction, and other relief. The plaintiff relied upon a certified copy of lease from P. H. Gaskins, “conveying the timber on the land in question to the plaintiff, duly witnessed and recorded,” and by his abstract traced title into said- Gaskins through a chain of conveyances, etc., beginning with a plat and grant from the State to John Reynolds, dated November 25, 1839. The defendant filed an answer and cross-bill, wherein-he alleged, among other things, that before the 1st day of January, 1912, he was in the actual open, notorious, and physical possession of lot number 508 in the 6th district of Berrien county, and was exercising legal and equitable rights thereto; that he was solvent and able to respond to any judgment that might be rendered against him; that on or about the'- day of February, 1912, the petitioner went upon the land and proceeded to cut, cup, box, and otherwise trespass upon the timber upon said land, etc. The defendant also prayed for injunction and other relief. In support of- his answer and cross-bill the defendant-introduced in evidence the following: (1) Application■ of H. C. Reynolds for appointment as administrator de bonis non cum testamento annexo upon the estate of John Reynolds, deceased, and the order appointing him as such. The application of H. C. Reynolds shows that it was made on March 28, 1911, 'and the appointment bore date April 3, 1911. It also shows that John Reynolds died in Greene county in 1846, more than 65 years before the date of the application for letters of administration de bonis non, etc. It also shows that John Reynolds died leaving a will, and appointing Samuel D. Durham as his ex.eeutor, and that Durham qualified as such. (2) Administrator’s deed from H. C. Reynolds, administrator upon the estate of John Reynolds, deceased, to M. Rowe (the defendant), which was dated October 3, 1911, and duly recorded. The defendant also offered in evidence the affidavit of one or more persons showing that in November, 1911, he took physical possession of lot of land number 508, above described, and erected fences upon it, etc.; that in 1891 Western & Gunn went upon said lot and cut some sawmill timber therefrom, which cutting lasted about one year; that after said acts of cutting, possession, etc., no one ever attempted to exercise possession in any manner whatever on said land until II. Rowe, the defendant, took physical possession in November, 1911, and erected the fences as described above. The court, having previously passed an order restraining the defendant from trespassing upon the land in question, on the hearing continued the restraining order until the jury trial. The restraining order granted upon the cross-bill was dissolved. The defendant excepted.</p>

<p>Injunction. Before Judge Bell. Fulton superior court. October 2, 1911.</p>

<p>Trover. Before Judge Parker. Clinch superior court. September 2, 1911.</p>

Equitable petition. Before Judge Charlton. Chatham superior court. December 7, 1911. The petition, which was dismissed on demurrer, alleged substantially as follows: E. V. Dunlevie (the defendant), of Buffalo, New York, was the owner of certain timber in Liberty county, Georgia. On June 4, 1908, he created petitioner, J. N. Jordy (a real-estate broker), his agent to sell the same.

<p>Action for damages. Before Judge Brand. • Gwinnett superior court. September 6, 1911.</p>

<p>Complaint. Before Judge Morris. Gilmer superior court. November 2, 1911.</p>

<p>Action for damages. Before Judge Morris. Gilmer superior court. October 10, 1911.</p>

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

<p>Complaint. Before Judge Morris. Fannin superior court. November 18, 1911.</p>

<p>Habeas corpus. Before Judge Thomas. Berrien superior court. November 12, 1912.</p>

<p>Trover. Before Judge Pendleton. Fulton superior court. April 24, 1912.</p>

<p>Petition for injunction. Before Judge Ellis. Fulton superior court. July 16, 1912.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. January 24, 1912.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. October 18, 1911.</p>

<p>Petition to distribute estate. Before Judge Charlton. Chatham superior court. July 21, 1911.</p>

<p>1. Where in a suit brought to recover damages for the loss of a car-load of fruit in consequence of a decay of the same, occasioned, as alleged, by the failure of the defendant company to properly refrigerate the car according to its undertaking, it was alleged in the petition that the defendant failed to ice the car in which the fruit was transported at the point of destination, and failed to reice same and to keep the same iced so as to properly preserve the fruit, that the ear in which the fruit was transported was almost entirely without ice when it was turned over to the plaintiff, and that the defendant company failed to replenish the ice at the point where the car was loaded and at other points in order to save the fruit,—a demurrer to such petition, criticising the same upon the ground that “it is not alleged when and , where the car of peaches in question should have been iced or when ; and where the same was iced, nor what could have been a ‘proper5 { icing to preserve said fruit, nor wherein defendant failed in the duty claimed for such icing,55 was without merit.</p> <p>2. Where a bill of lading was made out for only 380 crates of peaches and 192 crates of apples, and the agent through error failed to include in said bill 40 crates of peaches which were put in the car with his knowledge after the first loading of the car, which last 40 crates were received by the defendant company under the terms of the original contract and were transported to the point of destination, -the defendant charging and collecting freight and icing therefor, the plaintiff was entitled to recover for the full number of the crates of fruit shipped, upon proof of loss through the alleged negligence of the defendant company; and the demurrer to that portion of the petition stating the number of crates of fruit shipped, based upon the ground that the bill of lading showed a less number, was properly overruled.</p> <p>3. Where an instruction by the court is sound within itself, it affords no ground of criticism upon that particular instruction that the court failed in immediate connection therewith to charge some other principle or rule of law.</p> <p>4. It appearing that the plaintiff in error had adopted a rule with reference to the placing and loading of cars intended for the transportation of fruit, which provided that such cars “must be loaded and ready for movement within 24 hours from the time they are placed for loading, and these companies will not be responsible for the maintenance of a supply of ice 'in said ears after the 24 hours; when practicable to do so, additional ice will be furnished at loading points if desired; a charge of $5.00 per car for each additional 24 hours or fraction thereof will be made on account of loss from melting of ice,” the court • did not err, as against the plaintiff in error, in instructing the jury that the rule would be effective and binding upon the plaintiff only in case he knew of the same or might have known of it in the exercise of ordinary care.</p> <p>5. Although the plaintiff observed the condition of the car at the time of the loading of the fruit therein, with reference to the insufficient refrigeration, still if he called the attention of the agent of the company at the shipping'point to the condition of the car, and the agent of the company directed him to go ahead and load the fruit, assuring him that the railway company would furnish the ice, and the plaintiff, relying on that promise, loaded the car, and the company failed to furnish the ice and on that account the fruit was damaged, the company would be liable.</p> <p>6. The court erred in the following instruction to the jury: “If you find for the plaintiff, you will find the full amount proven in the case, and you will look to the evidence and see what the amount proven is, and your verdict will be for that amount.”</p> <p>(a) The expression, “you will find the full amount proven in the case,” might be considered by the jury as meaning the highest amount which there was evidence tending to show the plaintiff had suffered as damages.</p> <p>(i) The instruction tended to exclude from the consideration of the jury the question as to what part, if any, of the deterioration of the fruit constituting the cargo was due to inherent defects in the fruit, caused by its having been kept out of the refrigerator car for one entire night after it had been picked from the trees.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. September 19, 1911.</p>

Action for damages. Before Judge Fite. Whitfield superior court. October 10, 1911.

Receivership. Before Judge Frank Park. Grady superior court. March 5, 1913.

<p>Complaint. Before Judge Pendleton. Fulton superior court. November 7, 1911.</p>

<p>Injunction. Before Judge Thomas. Colquitt superior court. June 10, 1912.</p>

<p>Complaint. Before Judge Thomas. Tift superior court. October 26, 1911.</p>

<p>Claim. Before Judge Parker. Pulaski superior court. August term, 1911.</p>

<p>Equitable 'petition. Before Judge Rawlings. Johnson superior court. December 27, 1911.</p>

<p>Equitable petition. Before Judge Parker. Coffee superior court. October 12, 1911.</p> <p>Daniel Gaskin Sr. brought an action against Matthew M. Kight for the reformation of a deed and for injunction. It appears from the petition, that at some time prior to February 15, 1909, the plaintiff sold to the defendant a certain described parcel of land, reserving the timber thereon of stated dimensions. At the time of sale it was expressly agreed between plaintiff and defendant that such timber was not included in the sale, and that defendant was purchasing the land only. A bond was executed and delivered by plaintiff to defendant, wherein it was expressly stipulated that plaintiff, when the conditions of the bond should be complied with, would convey to defendant the land and that the timber thereon of given dimensions should be.excepted or reserved. The petition contains the following allegations:</p> <p>“3. It was clearly understood and agreed by and between petitioner and defendant that said timber was excepted and did not pass under said sale of the land in question, and was not purchased by said defendant.</p> <p>“4. On or about the said 15th day of February, 1909, a deed was sought to be drawn and executed, conveying the aforesaid land, with said timber excepted, by this petitioner to said defendant, in terms of the contract and agreement theretofore entered into and agreed upon by and between these parties. .</p> <p>“5. By accident or mistake, however, the deed was so drawn as not to except the timber aforesaid, as should have been done, the land simply being described with the clause excepting the said timber being inadvertently omitted, and said deed thus failing to describe and embrace the property really sold by petitioner to defendant in accordance with the terms of purchase agreed upon.</p> <p>“6. This deed was signed at night, and the mistake aforesaid ^as not discovered until after it had been signed and delivered.</p> <p>“7. The mistake was a mutual one, as there was no misunderstanding between the parties to said trade as to the exact estate purchased and to be conveyed by said deed,—that is, the land with the timber aforesaid excepted.</p> <p>“9. Notwithstanding the fact that said timber was included in said deed—or was not excepted therein—by inadvertence, accident, and' mistake, the said defendant is now endeavoring to claim title to the said timber which was not purchased by him, and which should have been excepted from the operation of said deed, and, contrary to good conscience, law, and equity, is endeavoring to assert ownership of said timber, and is threatening to cut, sell, and dispose of said timber, which does not belong to him but which belongs to this petitioner, and announces his present purpose and intention of cutting, selling, or otherwise disposing of all of said timber, to the great injury and damage of petitioner. .</p> <p>“13. Said deed should be reformed so as to speak the truth and carry out the contract of the parties thereto, and describe the property as actually bought by defendant from petitioner as aforesaid, to wit, the land in question with the timber aforesaid excepted from its operation.”</p> <p>The petition ivas amended by 'adding the following: “In view of the fact that the said Matthew M. Eight held petitioner’s bond for title to make to him, when the terms of the bond should be complied with, a deed to the land in question with the said timber excepted by and reserved to petitioner, this petitioner had every reason to believe that the bond was being followed in 'the drawing of the deed; and knowing that the said bond correctly described the property sold by petitioner to said Eight, petitioner had every reason to believe that the deed had been correctly drawn, with the said timber excepted and reserved, and did not notice the mistake in it until after it had been delivered. Petitioner’s recollection is that the deed was signed at night, but, be that as it may, there had never been any question about the timber and there was nothing to put petitioner on notice that any mistake concerning it could possibly be made in the deed, in view of the outstanding bond and the plain understanding and agreement between the parties to the trade consummated in the contract by which defendant purchased said land'from petitioner with the said timber excepted and reserved. In view of all this) petitioner did not examine the deed as closely as he might under other circumstances, and the mistake was not discovered until later.55</p> <p>The defendant demurred generally and specially to the petition. The special demurrer was as follows: “The defendant demurs to paragraph five of said petition, because it is not alleged therein where, how, or in what manner the mistake or accident occurred and happened; neither is it alleged in said petition or elsewhere what caused or brought about the alleged mistake and accident. Defendant demurs to paragraph six of plaintiffs petition,, because it is not alleged therein, or elsewhere in said petition, why that the signing of the said instrument at night caused or brought about the alleged mistake, neither is it alleged therein or elsewhere what was the length of time which expired after the alleged mistake and after the execution of the instrument before the discovery of the alleged mistake by plaintiff. Defendant demurs to the eighth paragraph and says that same sets out no cause of action, because it is not alleged therein whether the alleged mistake or accident-was a mistake of the scrivener, or of the plaintiff, or of the defendant, or of all; neither is it alleged whether the scrivener refused to follow instructions of plaintiff and defendant in drawing said instrument; neither is it alleged wherein, why, or in what manner the said alleged mistake was brought about, caused, or happened.55 The demurrers were overruled. A verdict was rendered in favor of the plaintiff. Defendant was refused a new trial. He excepted, assigning error upon the overruling of the demurrers and of the motion for new trial.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. September 5, 1911.</p>

<p>1. Even if evidence offered on behalf of the plaintiff after the close of. the introduction of evidence by the defendant were not altogether in rebuttal, its admission was within the sound discretion of the presiding judge, as against an objection based on that ground.</p> <p>2. Where, in a suit for a physical injury, it was alleged that- the plaintiff was hurt by stepping on a defective cap of a water-meter on a sidewalk of the defendant municipality, it furnishes no ground for a new trial that the court, in charging in refex-enee to the duty of a municipality in regard to keeping its sidewalks in reasonably safe condition for xxse by the public, referred to this duty as one in regard to its streets and sidewalks. Especially is this true where the court also instructed the jixry that the plaintiff must recover, if at all, on the case as alleged.</p> <p>3. Where the court charged in sixbstaxxce that it was the duty of a municipal corporation to keep its streets and sidewalks in a reasonably safe condition for passage by the public; that it was only botxnd to use ordinary care and diligence for that purpose; that it would fulfill its duty by so doing; that municipal corporations are not insurers against aceideixt; and that the defendant was hot liable unless it was guilty of negligence, sxxclx charge furnishes no reason for reversal oxx the ground that it places a heavier burden upon the mxxnxcipality than woxxld have arisen from axx accurate statement of the rule of duty on the part of a municipal cox-poratioxx ixx regard to its sidewalks.</p> <p>4. The duty of a city in reference to using ordinary diligence to keep a sidewalk reasonably safe for public use extends to all of the sidewalk intended for travel by the public as a thoroughfare, and is not confined to keeping in a safe condition a special part only of the sidewalk which happens to be most generally used.</p> <p>5. Although the plaintiff contended that the impaired condition of her health resulted from falling upon a sidewalk, caused by the defective condition of a water-meter, and was entirely due to such injury, while the defendant contended that the subsequent condition of her health was not at all due to that cause, but to a pre-existing infirmity, yet, where the evidence so authorized, there was no error in charging with reference to the right to recover on account of the aggravation of an existing infirmity.</p> <p>(a) The evidence authorized such a charge.</p> <p>6. A charge that if the jury should allow the plaintiff any amount on account of future mental pain and suffering, they should reduce that amount to. its present cash value, figured at the rate of seven per cent., per annum, was not an error harmful to the defendant.</p> <p>7. Under previous rulings of this court, the loss of capacity to labor, occasioned by a physical injury, may be considered by the jury as in the nature of pain and suffering, although no pecuniary loss therefrom may be shown.</p> <p>(a) In view of the context of the charge on this subject, it was not calculated to mislead the jury or cause them- to- confuse the suffering resulting from the inability to use one’s faculties with the loss of capacity-to earn money.</p> <p>8. The evidence supported the verdict, and the other grounds of the motion for a new trial require neither separate consideration nor a reversal.</p>

<p>1. Where a demurrer is directed to certain defects in pleading, which are curable by amendment, and an amendment is allowed, and the demurrer renewed to the pleading as amended, the merits of the demurrer can not be determined without a consideration of the amendment. And where the amendment is specified in the bill of exceptions, and the cierk certifies that it is not in his office and a transcript of it can not be sent to this court, the merits of the demurrer can not be considered.</p> <p>2. The court did not abuse its discretion in refusing to continue the' case because of the allowance of an amendment to the pleading.</p> <p>3. The issue made by the filing of a counter-affidavit to a summary proceeding to eject a tenant is tenancy or no tenancy. Though the counter-affidavit be amendable by averring germane matters, it is not amendable by setting up that a contract under which the plaintiff claims to derive title from the defendant is void and should be canceled.</p> <p>i. Under the special facts of this case, the status of the defendant with reference to the plaintiff was that of a tenant at sufferance.</p> <p>•5. A dispossessory warrant was directed to any lawful constable, and executed by a deputy sheriff by giving notice to the tenant, who filed , the statutory counter-affidavit. The filing of the counter-affidavit eon-I verted the warrant into mesne process, and an omission to direct the warrant also to the sheriff and his deputies furnished no ground for dismissal of the proceeding.</p> <p>6. A motion to reopen a case to avoid a nonsuit by letting in more evidence is in the sound discretion of the court.</p> <p>7. The various rulings complained of were without substantial error. The evidence demanded a verdict that the defendant was a tenant at sufferance and subject to eviction. The plaintiff did not claim any rent. It was therefore not erroneous to direct a verdict for the plaintiff, directing the issuance of a writ of possession of the premises.</p>

<p>1. In an action for rescission and forfeiture of estate for breach of condition subsequent, based on a deed executed by the plaintiff to the defendant, the recitals in the deed relied upon to create an estate upon condition are to be construed in connection with the entire instrument, looking always to the intention of the parties, giving to any technical words employed the meaning intended by the parties, so far as ascertainable from the instrument, rather than their technical meaning; and if, upon a strict construction of the deed in its entirety (there being no express words of defeasance), it should be doubtful whether the instrument created an estate upon condition subsequent, or the words employed imported covenant, the latter construction should be adopted.</p> <p>(a) The clause in the deed involved in this action, which specifies the things to be performed by the grantee, is to be regarded as a clause of covenant, and the deed construed in its entirety is not to be construed as one creating an estate on condition subsequent.</p> <p>2. Construing the deed as indicated in the preceding note, mere breach of the covenant to support the grantor during his natural life would not afford ground for rescission of the contract or forfeiture of the estate.</p> <p>(a) The judge did not err in restricting the jury by his charge to a consideration of the allowance of damages.</p>

<p>Equitable petition. Before Judge Morris. Forsyth superior court. August 29, 1911.</p>

<p>1. A railroad company must exercise ordinary care in tlie operation of its locomotive, to prevent tlie spread of fire; and in determining whether such care has «been exercised, it is proper to take into consideration, together with other circumstances then prevailing, the speed of the train, the condition of the weather; as whether it was dry or windy, the inflammable character of the property near the track, the fuel used, and the use of an unusual amount of steam whereby an undue quantity of sparks were emitted.</p> <p>2. The failure to observe the statute with respect to checking the speed of a locomotive approaching a public-road crossing is negligence with respect to injuries occurring on a crossing, but is irrelevant in a suit for setting fire to adjoining property, unless it is made to appear that a proximate cause of the fire was the failure to check the train.</p> <p>3. “The measure of diligence which the law places upon a railroad company, in respect to the providing and keeping in repair of spark-arresters or other appliances for the prevention of fire, is to use ordinary care and diligence to apply to its engines the best appliances in general use, the use of which is consistent with the practicable operation of its engines, and to use reasonable care and skill in keeping the same in good order.”</p> <p>4. It is error to charge that it is the duty of a railroad company in the operation of its locomotives to use such fuels as are in general use by first-class railroads.</p> <p>5. The charge complained of is not subject to the criticism that it amounted to an instruction that the plaintiff was entitled to recover upon proof of the destruction of the property by fire, regardless of the source of ignition.</p> <p>6. As another trial will be had, it is not necessary to decide the effect of an occurrence at the trial, which is not likely to be repeated.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. September 19, 1911.</p>

<p>Action for damages. Before Judge Meadow. Morgan superior court. December 1, 1911.</p>

<p>1. After a witness had given his opinion of the value of land which.it was claimed would be subject to consequential damages by reason of condemning another part of the tract, and stated that the pond created by the condemner caused injury to the balance of the land, there was no error in permitting him to give his opinion that' the value of the balance would be decreased $20 an acre.</p> <p>(a) Inaccessibility to market from the balance of a farm, resulting from condemning a part of it and flooding it with water, is a legitimate subject of consideration by a witness m estimating the decreased market value of the part not taken.;</p> <p>2. A mere disconnected statement of the husband of the owner of land sought to be condemned, that he had been offered $100 an acre for it twenty years before, would not be admissible.</p> <p>(a) Such statement appears to have been made on cross-examination, and is part of the sentence: “I told you up there that I was offered $100 an acre for that bottom land twenty years ago.” If the evidence was drawn out by counsel for movant in the motion for a new trial, it would furnish no ground for reversal.</p> <p>3. Where a witness testified to his familiarity with the land, a part of which was sought to be condemned, that he had seen the crops growing on it, and that the bottom land was fertile and easily irrigated, and gave Ms opinion that it was worth $200 per acre, there was no error in refusing to rule out the estimate because on cross-examination he testified that he never bought any land “up that way,” that the price of land differed in different communities, that he did not know the value of land in that particular community, that he was farming in the edge of an adjoining county, and “sorter dabbled in real estate around here,” and that he had never seen or heard of any one paying- $200 per acre in that community (stating on redirect examination that he did not know of any sales which had taken place “up there”). Such facts, elicited on cross-examination, went to the credit to be given to the evidence, rather than to its admissibility.</p> <p>4. Where a witness testified that he had been acquainted with certain land for about .forty years, had lived in about seven miles of it, had been upon it and seen it in cultivation, and that he had knowledge of the land and was acquainted with its market value, and that on account of his knowledge of lands in the county and acquaintance with them as-a farmer he considered himself competent to give an opinion of the market value, his opinion was admissible, although he also stated that he could not say positively that he knew the market value of land in that section, that he had known of only two pieces being sold in twenty years, and that he had been on the tract of land about two years pre- . viously but had not seen the particular part of it sought to be condemned in four or five years.</p> <p>o. In a proceeding to condemn certain land for use as a part of a reservoir by a company intending to produce electric power and lights, a witness offered as an expert by the landowner testified that the water-power belonging to the owner was worth $2,500. On cross-examination the witness testified that the stream which ran along the property had a fall of but a foot and a half within the boundaries of the tract, and that no dam could be there -erected or water-power utilized, but that he based his estimate upon a calculation or opinion that the condemner or some other person could build a dam some distance further down the stream (at the point where the condemner was actually proceeding to do so), and could erect building's, provide machinery, and operate the works at a certain estimated cost, and could produce a certain horsepower of an estimated value; that the volume and flow of water passing along the edge of the land sought to be 'condemned could produce a certain horse-power, which, compared with the total horse-power produced at the dam, would make the water-power of the landowner worth. a sum stated. Held, that such estimate of value was founded on an improper basis, and should have been excluded from evidence, on motion.</p> <p>(a) The estimate of another witness offered by the landowner as an expert, that the land taken was worth a certain sum per acre, which was shown to rest on a similar basis, should also have been excluded on motion.</p> <p>6. The error in the admission of this evidence also affected the charge, and certain portions of it apparently depended upon this evidence. There was also some inaccuracy in expression in portions of the charge to which exception was takén.</p>

<p>1. Where a petition set out the creation of an abatable private nuisance, and its maintenance by the defendant (the owner of the land on which it was erected) after notice to abate, with resulting damages, it was not subject to general demurrer on the ground that it set forth no cause of action.</p> <p>2. Where a railroad company created and maintained a nuisance by diverting the natural flow of a branch, causing damage, and a suit was brought therefor, which resulted in a nonsuit; and where, while the case was pending, the company was merged with another and ceased to exist as a separate entity, tlie other company taking all of its property and' assuming all of its debts and liabilities, a. renewal of the suit against the company resulting from the merger, brought within six months after the grant of the nonsuit, was a renewal against the original company within the meaning of the Civil Code, § 4381.</p> <p>3. Even if a suit for the original creation of a nuisance be barred by the statute of limitations, still, if it be a continuing nuisance which can and should be abated, a suit for damages resulting from its maintenance will not be dismissed; nor will such a suit for damages accruing within the statute of limitations be dismissed as a whole, although it may . seek to recover for some damages as to which suit is barred.</p> <p>4. If a person is liable both for the creation and maintenance of a nuisance, there is no misjoinder of causes of action in suing for both in the same suit.</p> <p>{a) It is not held that there can be a recovery on the basis that a nuisance is permanent and not abatable, doing the entire damage at once, and also for the continuance of the same nuisance as abatable.</p> <p>5. The action was one for a tort, and the allegations of merger of the two ‘companies, and as to the contract of merger by which the debts and liabilities of the company erecting the nuisance were assumed, were made to show the liability of the company formed by the merger, and did not subject the petition to demurrer on the ground that it was a suit both for a tort and on a contract.</p> <p>6. The other grounds of demurrer were properly overruled, except as to the claim to recover for mental pain and anxiety caused by the sickness of plaintiff’s family, for the rent paid for a house in a town four miles • from the plaintiff’s farm for four years, and for the purchase-price and cost of maintaining a horse and buggy for seven years. Direction is given that these items be stricken.</p>

<p>Action for damages. Before Judge Conyers. Glynn superior court. November 4, 1911.</p>

<p>Complaint. Before Judge Ellis. Eulton superior court. September 11,1911.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. March 23, 1911.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. October 6, 1911.</p>

<p>Equitable petition. Before Judge Sheppard. Bryan superior court. January 23, 1912.</p>

<p>1. Where a deed describes the lot conveyed by metes and bounds, and refers to a plat as representing them, the reference is not to enlarge or .diminish the effect of the desei’iptive words of the conveyance, but to give them efficacy, and the operative words are found in the deed itself.</p> <p>2. Where a civil engineer who made a sui-vey and plat testifies that the ■ same are correct, the plat is admissible in evidence. ,</p> <p>3. After both sides close and argument is begun, it is in the discretion of the court to reopen the ease to let ixi more testimony. The court did not abuse his discretion in this instance.</p> <p>4. The court of his own motion directed the jury to be brought into the coui't-room after they had been deliberating for four hours. After inquiring as to the existence of any difference among them concerning any issues of fact, he stated that it was their duty to determine all issues of fact, and sent them back to their room. This action of the court did not amount to coercion of a verdict.</p> <p>5. The various rulings were without substantial error, and the verdict is supported by the evidence.</p>

<p>Action for damages.' Before Judge Brand. Gwinnett superior court. January 19, 1913.</p>

Probate of will. Before Judge Morris. Cobb superior court. November 24, 1911. Mrs. Jane M. Camp> a resident of Cobb county, died on June 30, 1911. Shortly after her death John T. Brantley and Sarah A. Camp offered in the court of ordinary of Cobb county, for probate in common form, an instrument which they represented to be her last will and testament, wherein the propounders were nominated as executors. The paper propounded was admitted to record as proved in common form.

<p>Equitable petition. Before Judge Eite. Murray superior court. January 6, 1912.</p>

<p>The petition was sufficient to withstand a general demurrer.</p>

<p>Where a railroad company permitted pedestrians to walk longitudinally along its tracks within the switching-yard and corporate limits of a city which by ordinance prohibited the running of trains at a rate of speed in excess of six miles an hour, and a person, while walking on one of two main-line tracks connecting two switching-yards (which main' lines also were used for switching purposes), was killed by a switch-train of the company, which at the time was running at a rate of speed in violation of the ordinance, and suit was brought against the company to recover damages for the homicide, it was a question of fact for the jury to determine. whether, under all the evidence (which tended to show that many persons were accustomed to walk on the track at the point where the homicide occurred), the servants of the company were under any duty .to anticipate the presence of pedestrians on the track, and, if so, -whether they exercised ordinary care and diligence to prevent the homicide. It follows that the court erred in directing a verdict in favor of the defendant</p>

<p>Complaint. Before Judge Pendleton. Eulton superior court. December 5, 1911.</p>

<p>1. In an action against a railway company to recover damages for a tortious seizure and carrying away of goods which previously had been delivered to the plaintiff and upon which all carriage charges had been paid, in which both actual and exemplary damages are claimed, it is competent to allege and prove that the company was actuated by the plaintiff’s failure to pay demurrage of a small sum on a former shipment, which was disputed, and the circumstances relating to such disputed item of demurrage.</p> <p>2. There was a claim for exemplary'damages, and the court did not err in defining, in an instruction to the jury, what such damages included.</p> <p>3. The criticisms on the various rulings are without substantial merit; and the verdict is not for such an amount as to require the grant of a new trial on the ground that it is excessive.</p>

<p>Complaint. Before Judge Charlton. Chatham superior court. August 2, 1911.</p>

<p>Complaint. Before Judge Felton. Bibb superior court. January 18, 1912.</p>

<p>Action for damages. Before Judge Maddox.. Floyd superior court. December 6, 1911.</p>

<p>Under the evidence it was error to grant a nonsuit in this case.</p>

<p>Action upon insurance policy. Before Judge Gilbert. Muscogee superior court. January 26, 1912.</p>

<p>Under tlie facts proved in this ease and all reasonable deductions therefrom, the plaintiff was not entitled to recover, and the court did not err in awarding a nonsuit.</p>

<p>Action upon bond. Before Judge Bell. Fulton superior court. October 5, 1911.</p>

<p>Action for damages. Before' Judge Pendleton. Fulton superior court. December 8, 1911.</p>

Action lor damages. Before Judge Brand. Walton superior court. January 18, 1912. The Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company, as lessees of the Georgia Railroad & Banking Company, operating the railroad of the latter, instituted an action for damages against R. S. McGarity. The damages sought to be recovered were based bn an alleged injury to a locomotive engine while drawing a freight-train, on the railroad track.

<p>1. In an action for damages founded on tort, it is no defense that the injury was caused while the defendant was acting in performance of a duty as agent of a firm of which the plaintiff was a member, if negligence of the defendant amounting to misfeasance produced the injury. One phase of the evidence presented such a case; and it was erroneous to instruct the jury to the effect that the plaintiff could not recover if the contract for service was not with the defendant but with the firm, and if the plaintiff was a member of that firm.</p> <p>2. In such an action it was erroneous to admit in evidence a newspaper advertisement of the business of the firm, and the contract between the partners, over the objection that the evidence was irrelevant.</p> <p>3. There was evidence to authorize a charge on the subject of accident.</p> <p>4. It is proper to so charge the jury as to restrict the recovery to the grounds of negligence alleged in the petition.</p> <p>5. A ground of a motion for new trial must be complete within itself. Where complaint is made of refusal of the judge to admit in evidence the opinion of a non-expert witness, the facts upon which the opinion is based should be set out in the ground of the motion.</p> <p>6. Testimony that the defendant had had a great deal of experience with horses was not wholly irrelevant.</p> <p>7. Under the particular facts of the case the remark of the judge, “Sustain the facts of this case,” addressed to counsel while they were engaged in a colloquy in regard to the admissibility of evidence, was not calculated to injure the plaintiff.</p>

<p>Action for alimony. Before Judge Fite. Murray superior court. August 17, 1911.</p>

<p>1. It is error for the judge to direct a verdict, except where there is no conflict in the evidence as to the material facts, and the evidence introduced, together with all reasonable deductions or inferences therefrom demands a particular verdict. Civil Code, § 5926.</p> <p>2. An alteration in a promissory note after its execution, so as to make it bear eight per cent, interest from its date (the statutory rate being seven per cent., if interest accrues), is a material alteration. Gwin v. Anderson, 91 Ga. 827 (18 S. E. 43); Glover v. Green, 96 Ga. 127 (22 S. E. 664) ; McOauley v. Gordon, 64 Ga. 221 (37 Am. R. 68).</p> <p>3. If such an alteration was made by a person claiming a benefit under it, or by his agent authorized to represent him in the transaction, with intent to defraud the other party, such alteration avoids the whole contract at the option of such other party. Civil Code, § 4296.</p> <p>(a) This is true although the note may have been transferred before due to one taking without notice.</p> <p>4. If such an alteration was not made with intent to defraud, arid if the contract as originally written is still capable of execution, it will be enforced.</p> <p>5. Under the ruling in Glover v. Green, supra, “While the intentional alteration of a promissory note in a material part, if made by a person claiming a benefit under it, or by his agent with his consent, with the intent to defraud the maker, will give the latter, at his option, the right to treat the note as void, in order to avail himself of this right he must elect to rescind the whole contract of which the note forms a part. He can not enforce for his benefit a portion of that contract, and repudiate another portion of the same.”</p> <p>6. In order for attorney’s fees provided for in a note to be recovered, the holder, his agent or attorney, “must notify the defendant in writing,” ten days before the bringing of suit, of his intention to sue and also of the term of court to which suit will be brought. Civil Code, § 4252.</p> <p>7. The statutory requirement to “notify in writing” is not met by merely mailing such notice, if it is not received in the time provided.</p> <p>8. Mere general testimony of the attorney of the plaintiff that he “made out notices and mailed to all these parties, and several of them acknowledged receiving them,” without any showing as to the contents of tile notices, or how they were directed or that they were stamped, was inadmissible.</p> <p>9. In the absence of any evidence of the giving of the notice provided by the statute as a condition precedent to recovery of attorney’s fees included in a promissory note, evidence of what would be reasonable attorney’s fees for collecting the note is irrelevant.</p> <p>10. There was evidence that some of the defendants acknowledged the receipt of the notices, but others did not; and some of the defendants as witnesses denied receiving them. Under these circumstances, it was error to direct a verdict for attorney’s fees against all of the defendants.</p> <p>(a) The notes sued on were joint and several. Whether attorney’s fees (which have been held to become a part of the principal) may, in such a case, be recovered against some and not against others, quaere.</p> <p>11. The opinion of an attorney as to what would be a reasonable attorney’s fee did not authorize the presiding judge to direct a verdict for that amount. Baker v. Richmond City Mills Works, 105 Ga. 225 (31 S. E. 426).</p> <p>12. In the absence of any evidence of notice to the purchaser of a promissory note for value and before due, in a suit by him against the maker, evidence of fraudulent representations made by the agent of the payee, or of failure of consideration, is inadmissible.</p> <p>13. A refusal to allow an amendment to a plea is not a proper ground of a motion for a new trial. But as the case is to be retried, the circumstances under which this amendment was offered are not likely to occur again.</p>

Equitable petition.» Before H. E. Dunwody, judge pro liac vice. Glynn superior court. January 29, 1912. George P. Smith and I. L. Schuyler brought an equitable action against Benito Padrosa. The original petition was demurred to generally and specially. It was amended, and other demurrers general and special were urged against it as amended, the original demurrers being also insisted upon.

<p>Petition for injunction. Before Judge Ellis. Fulton superior court. February 5, 1912.</p>

<p>Interpleader. Before Judge Hammond. Richmond superior court. December 20, 1911.</p>

<p>Equitable petition. • Before Judge Eelton. Bibb superior court. • August 29, 1911.</p>

<p>Equitable petition. Before Judge Brand.’ Jackson superior court. September 6, 1911.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. January 1, 1912.</p>

<p>Action for damages. Before Judge Bawlings. Jefferson superior court. September 11, 1911.</p>

<p>Equitable petition. Before Judge J. B. Park. Morgan superior court. February 3, 1912.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. .October 24, 1911.</p>

<p>Complaint. Before Judge Hammond. Columbia superior court. September 25, 1911.</p>

<p>Partition. Before Judge Bawlings. Bulloch superior court. December 30, 1911.</p>

<p>1. When this ease was formerly before the Supreme Court, it was held that the petition was not subject to general demurrer, and that, under the facts therein alleged, the plaintiff was entitled to recover, unless other facts not appearing on the face of the petition, affecting or de-stroying the validity or binding effect of the agreement signed» by the defendant, should appear upon the trial. Read v. Gould, 134 Ga. 524 (68 S. E. 94).</p> <p>2. If parol negotiations were had for the sale of land at a certain price per acre, but when the parties met for the purpose of closing the transaction the vendee agreed that the vendor should have rights of pastúrage, hunting, and fishing on the land, cand thereupon a fee-simple deed was executed by the vendor to the vendee, and simultaneously therewith, as part of the same transaction, the latter executed to the former a written contract, reciting that in' consideration of the sale of the land the vendor should have such rights during her life, but that, if the vendee should at any time choose to do so, he should have the right to terminate such agreement upon the -payment to the vendor of $400 in addition to the purchase-price of the land,—as between the contracting parties the two instruments should be considered together as constituting one contract, and the agreement given by the vendee to the vendor would not be invalid as a nudum pactum because no consideration was paid to him therefor beyond the conveyance of the land.</p> <p>3. After the execution of the deed and contract mentioned in the preceding headnote, the grantee in the deed first sold and conveyed the timber on the land to one party and then executed a fee-simple warranty deed to another for, the land, in which latter deed was contained a recital of the previous sale of the timber and timber privileges, and their exception from the deed then being made. It then proceeded: “Nevertheless the said [party making the deed], for himself, his heirs and assigns, reserved and does hereby convey to the said [grantee in the deed being made] the right to pasture live stock on said land, the right to cut small timber sufficient for fence-posts to be used on said land, and the right to shoot or trap game and fish upon said lands or otherwise lawfully capture the game.” Held, that such deed was not ambiguous, but clearly conveyed the right of pasturage and of hunting and fishing.</p> <p>{a) Parol evidence was not admissible to show that the maker of such deed did not mean to transfer those rights, but to reserve them to the maker of the deed.</p> <p>(b) Even if the deed were ambiguous, it would not be competent for the maker thereof to explain it by testifying to what was his undisclosed intent.</p> <p>4. If a grantee of land entered into a binding written contract with the grantor that the latter should have the right of pasturage, hunting, and fishing on the land during her life, but that if the grantee should at any time choose so to do he should have the right to terminate this agreement upon the payment to the grantor of an additional sum of $400; and if thereafter the grantee executed a fee-simple warranty deed conveying to another the land, together with the rights of pasturage, hunting, and fishing, the grantor had the right to treat this as an election to terminate the contract giving her such rights, and to bring suit for the $400; and it would not be a defense to such a suit to prove that the original grantee received no valuable consideration for making such warranty deed.</p> <p>(a) Apparently the husband of such second grantee furnished a sufficient consideration to have a deed made .to himself, but directed the deed to be made to his wife. If so, the consideration furnished by him would support the conveyance to his wife, as if a conveyance had been made to him and by him to his wife, even if the question of a consideration for such deed would affect the right of the original grantor, under her contract with her grantee, .to recover the $400 therein mentioned.</p> <p>5. If, about two years after the original grantee had made the conveyance of the land and rights of pasturage, hunting, and fishing, and after his grantor had elected to claim the $400 provided in the contract, such original grantor executed, to one desiring to buy the land from the person to whom it had been conveyed by the grantee, an instrument disclaiming any such rights in the land, but reserving the rights of the original grantor as against the original grantee upon liis contract, this did not operate to destroy the right of action, or avail as a defense thereto.</p>

<p>Equitable petition. Before Judge Brand. ■ Jackson superior court. October 5, 1911.</p>

<p>Complaint. Before Judge Eite. Bartow superior court. December 4, 1911.</p>

<p>Illegality of execution. Before Judge Maddox. Chattooga superior court. December 23, 1911.</p>

<p>Exceptions to 'auditor’s report. Before Judge J. B. Park. Morgan superior court. December 4, 1911.</p>

<p>Equitable petition. Before Judge Parker. Ware superior court. August 5, 1911.</p>

<p>Probate of will. Before Judge Pendleton. Pulton superior court. October 26, 1911.</p>

<p>Appeal. Before Judge Bell. Fulton superior court. November 6, 1911.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. December 4, 1911.</p>

<p>The court did not err in rejecting the amendment tendered by the plaintiff, nor in dismissing the ease.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. October 27, 1911.</p> <p>A. J. Crawford and others, claiming to be some of the heirs at law of J. B. Crawford, deceased, and as such entitled to one sixth of his estate, brought their petition against Mrs. M. B. Crawford individually and as administratrix of the estate of J. B. Crawford, in behalf of themselves and such of the other heirs at law of J. B. Crawford as might choose to come in and be made parties plaintiff. The petition was dismissed on general demurrer, and the petitioners excepted. The substance of the petition, so far as it needs to be stated, was as follows: J. B. Crawford died in Fulton county im 1909, aged about 80 years. A short time prior to his death he married Mrs. M. B. Savage of the State of Florida, who' was then between 30 and 35 years of age. After the' death of the decedent, Mrs. M. B. Crawford, on her application, was appointed by the ordinary of Fulton county administratrix of his estate, and has qualified as such. At the time of his death the decedent owned and was possessed of a large estate of real and personal property in the city of Atlanta and other places in this State. He left no lineal descendants. The defendant “is extremely extravagant, wasteful, and is now in possession, under the pretended administration aforesaid, of all the estate real and personal of said J. B. Crawford, deceased; and notwithstanding said property is worth in the neighborhood of $150,000, she has not given bond and security as required by law. She has only executed a bond as such administratrix in the sum of $20,000, . . and, notwithstanding this fact, she petitioned the ordinary of said county, setting up that the estate was greatly in excess of $20,000, but that the whole of the estate was coming to her, and therefore asking the court to allow her to give a bond in the sum of $20,000, in place of giving a bond as required by law, as such administratrix, in double the amount of the value of the property of said decedent.” Without authority of law the ordinary granted her petition and allowed her to execute a bond in the sum of $20,000. She is insolvent and not able to respond for any sum of money that may go into her hands, belonging to petitioners or to the other heirs of the decedent who are entitled to his estate. As administratrix she has advertised for sale practically all of the realty belonging to the estate of the decedent, and it will be sold unless the sale be restrained. The marriage between the decedent and the defendant, which was entered into 'a short time prior to his death, was void for the following reasons: “That on account of the advanced age, the feeble condition in both body and mind, the said J. B. Crawford was so insane as not to be able to contract marriage, all of which was well known to the said defendant in this case, 'and to more completely carry out her intention and purpose to bring about said marriage, in order that she might inherit his property, and knowing his feeble condition in body and mind, brought about said marriage, contrary to law, and knew at the time that said marriage took place that the said J. B. Crawford was drunk, and the drunkenness was brought about by the. influence of the said Mrs. M. B. Savage, now Crawford, in order to get his consent, and to.consum-. mate the marriage, and while in this condition of drunkenness and ■feebleness of body and mind the marriage ceremony was performed. . The said J. B. Crawford was drunk and in a drunken condition, and had been for some time before said marriage, and was then almost in a dying condition, and did die in a few days thereafter; and after he was married, as petitioners are informed and believe, the said pretended wife continued to buy and induce him to drink liquors to great excess, in order to carry out the main purpose of getting and possessing his property, which she successfully did, and he died, and she immediately took possession of his property of all description.” If the property of the estate should be sold by the defendant as administratrix, it will not bring its true value, because those who might desire to purchase will be afraid of the title, because of the insufficiency of the bond given by the defendant as administratrix. Moreover, there is no necessity for such sale, as the property is divisible in kind among the heirs, and there are no debts of the deceased, “except what said administratrix has herself unlawfully contracted.” The main purpose “of said sale by said pretended administratrix is to get the property sold and the money in her pocket, without complying with the plain provisions of the law in bringing said property to sale, and in this way defeat and defraud your petitioners out of their rights, interest, and property in said estate, and to place it in such a condition as they will lose the property entirely.” The defendant is spending the money of the estate, converting the property to her own use, contracting debts and lawyer’s fees in large amounts; and the property is of such character as to require some capable person to take charge of and preserve the same. By amendment to the petition it was charged, on information and belief, that the marriage between the defendant and the decedent was void, because 'at the time it took place she had a living husband or husbands from whom she had not been divorced. It was further charged, on information and belief, that the defendant, at the time she induced the decedent to marry her, was of bad repute, and engaged one Eick, of Florida, to aid her in getting the decedent to marry her, promising to pay Eick for so doing. For the reasons stated it was alleged that the marriage was void. The prayers were, that the marriage be “set aside” and decreed to be void; that the right and interest of the petitioners in the estate of the decedent be established; that the defendant as administratrix be enjoined from any sale; that a receiver be appointed for the property of the estate; for process, and general relief.</p>

<p>Complaint. Before Judge Sheppard. Tattnall superior court. October 4, 1911.</p>

<p>Action for damages. Before Judge Meadow. Oglethorpe superior court. December 12, 1911.</p>

<p>Action for damages. Before Judge Fite. Murray superior court. August 4, 1911.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. January 1, 1912.</p>

<p>Action tor damages. Before Judge Conyers. Camden superior court. January 6, 1912.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. November 23, 1911.</p>

<p>1. In a suit by the administrator of a deceased employee against a railway company, to recover damages for the alleged wrongful death of the employee, brought under the act of Congress of April 22, 1908, commonly known as the employer’s liability act, it is not error to instruct the jury that if both the plaintiff’s intestate and the railway company by their negligence contributed to the former’s death, the plaintiff nevertheless would be entitled to recover damages, though the damages would be diminished in proportion to the negligence attributable to the decedent.</p> <p>2. The measure of damages in an aetion founded upon the act of Congress, known a§ the employer’s liability act, brought by the administrator of a deceased employee for the benefit of the employee’s widow and children, is the pecuniary loss which they sustain. The charge to the jury on the measure of damages was erroneous, in that a recovery was permitted, not only for .the pecuniary loss sustained by the wife and children, but also for an excess of the decedent’s earnings during his expectancy of life.</p> <p>3. A charge that the care required by the defendant and its employees in the particulars in which they are charged to have been negligent is ordinary care, and' that ordinary care is that care which a prudent railway company, acting through itself, or its employees or agents, would exercise under the same or similar circumstances, contains an inaccurate definition of ordinary care.</p> <p>4. There was no error in declining the request to charge relating to the duty of the plaintiff’s intestate in approaching the switch from which his train was derailed, where a clear hand signal was given as against a fixed signal.</p> <p>5. Where the general charge covers all the substantial issues of the case, it is not ground for a new trial that the court omits to charge the law relating to certain specific evidence, when no appropriate written request is made for such an instruction.</p> <p>6. The testimony to which objection was taken illustrated the issue made by the pleadings, that the device for turning the switches was defective in construction, and also was in such disrepair as to be unreliable in turning the switch.</p>

<p>1. Where suit was brought against a city for damages alleged to have been caused by the negligence of the city in digging and keeping open a ditch in the public streets, resulting in an injury to plaintiff by reason of the horse which he was driving falling therein, and where the defendant denied that it was negligent, or that the open ditch was the proximate cause of the injury, but insisted that the proximate cause was that the plaintiff negligently caught the horse by the bridle after he had fallen into the ditch and had come out, and the horse kicked and caused the injury to plaintiff, the court should have instructed the jury that if it was shown that the city had caused the ditch to be dug and thus created the situation of peril, and the plaintiff put himself in a position of danger relative thereto, it was a question of fact for the jury to say, under all the evidence, whether he acted with ordinary care and prudence, and what the proximate cause of the injury was.</p> <p>2. Where there is a conflict in the testimony as to a material issue in the case on trial, it is error to instruct the jury that “You may believe that witness or those witnesses who have the best means of knowing the facts about which he or she testifies, and the least inducement to swear falsely,” without the qualification that the witnesses m all other respects are found to be equally credible.</p> <p>3. The general rule is that isolated acts of negligence, similar to the one complained of, can not be shown. Accordingly it was error, on the trial of a suit against a city for damages, brought by one who was alleged to have been injured by the falling of a horse into an open ditch dug in a public street of a city, without the placing of a sufficient -number of signal lights (but two being placed) to warn travelers of the danger, to allow a witness to testify that a few days prior to the injury he had passed the ditch and noticed only two lights.</p> <p>4. It was likewise error to permit a witness for -the plaintiff, where it was not shown what was the general custom of using red lights on open ditches in cities, to testify that “Wherever we see a red light, it means for you not to drive over that red light; and if they were 30, 40, or 50 feet apart, that means for you to drive between them.”</p> <p>5. In a suit by one against a city to recover damages for injuries sustained by the plaintiff while he and two companions were being driven by one of these two, with his consent, in a buggy drawn by a horse, which went into an open ditch dug by the city, where the city had sought to warn the traveling public of the danger by signal lights, there being -evidence to warrant such instruction, it was error to fail to charge the jury on the subject of whether the driver was negligent, and, if so, whether that negligence was the proximate cause of the injury.</p> <p>6. A juror is not disqualified to try a case where he is the nephew of one whose wife is a sister of the mother of a plaintiff in another suit growing out of the same transaction as the one on trial. Such a family connection did not bring such juror within the prohibited degrees of kinship and disqualify him for jury service in the plaintiff’s case.</p> <p>(a) Where the court asked all of the jurors whether any of them were related by blood or marriage in any way to the plaintiff, or to two other persons who had similar suits against the defendant, growing out of the same transaction, it is not cause for a new trial that one of the jurors trying such case, and who was not related to the plaintiff, remained silent.</p> <p>7. The court erred in overruling the motion for a new trial.</p>

<p>Equitable petition. Before Judge Gilbert. Campbell superior court. November 10, 1911.</p>

<p>1. The charge dealt with in the first division of the opinion, if erroneous, was not harmful to the defendants, and will not require a new trial.</p> <p>2. The plaintiff was entitled to recover a reasonable expenditure made by him in order to remedy defects in a well on the land sold, which existed at the time of the sale, so as to put it in the condition the defendants represented it' was at that time.</p> <p>3. There was evidence to support the verdict.</p>

<p>Action for damages. Before Judge Littlejohn. Stewart superior court. January 19, 1912.</p>

<p>Action, for damages. Before Judge Fite. Whitfield superior court, November 24, 1911.</p>

<p>1. Where a corporation, being authorized by law so to do, erected a dam across a stream, and constructed in connection therewith a plant for generating electricity by water, to be used for the purpose of lighting towns or cities, supplying motive power to street-car lines, and furnishing light or power to the public, an ordinary had no jurisdiction to proceed summarily, under the Civil Code, § 5333, for the purpose of abating such dam and plant as a public nuisance.</p> <p>2. Where an ordinary, upon the affidavits of certain freeholders, was taking steps to cause a jury to be summoned, and to try the question whether such a dam and plant constituted a public nuisance, it was error for the judge of the -superior court to refuse to grant a writ of prohibition to prevent him from proceeding further.</p>

<p>On April 12, 1910, S. brought suit against a railway company to recover damages for certain injuries alleged to have been received by him, while he was a passenger upon a car of the defendant, in consequence of the negligence of the company and its employees. Pending that suit S. died, and his administrator was made a party plaintiff. Subsequently, and pending the suit in the name of the administrator, the widow of S. brought suit against the same company to recover for his homicide, alleging that lie died in consequence of the injuries out of which grew the suit he had filed. The suit of the administrator proceeded to trial, and resulted in a verdict for the defendant. That verdict had not been set aside, and no appeal had been taken from it, when the suit brought by the widow came on for trial. At this trial tlie defendant urged a plea in bar, which set up the former adjudication, and submitted evidence which supported the plea. The court directed a verdict sustaining the plea in bar. TIelcl, that this was error.</p>

Habeas corpus. Before Judge Pendleton. Fulton superior court. May 25, 1912. O. F. Taylor instituted habeas corpus proceedings against T. A. E. Means, charging that the defendant was illegally detaining petitioner’s son Ollie Taylor, a youth about 13 years of age, and setting up that petitioner was entitled to the possession and services of his said minor son.

<p>Petition for injunction. Before Judge Hammond. Richmond superior court. April 9, 1912.</p>

Complaint. Before Judge Felton. Bibb superior court. November 16, 1911. J. A. Flournoy, as transferee of a bill of lading, instituted an action by attachment against the Nashville, Chattanooga & St. Louis Bailway, for the recovery of the value of certain oats for which the defendant had issued its bill of lading at Nashville, Tennessee, consigned to the order of the consignor at Macon, Georgia.

<p>Complaint. Before Judge Walker. Lincoln superior court. December 16, 1911.</p>

<p>Equitable petition. Before Judge Brand. Walton superior court. January 19, 1912.</p>

<p>Equitable petition. Before Judge Jones. Rabun superior court. January 6,1912.</p>

<p>Action for damages. Before Judge Fite. Gordon superior court. December 26, 1911.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. January 1,1912.</p>

<p>Indictment for murder. Before Judge Walker. Warren superior court. November 29, 1912.</p>

<p>Indictment for murder. Before Judge Mathews. Houston superior court. November 22, 1912.</p>

<p>Indictment for murder. Before Judge Rawlings. Jefferson superior court. November 14, 1912.</p>

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

<p>Indictment for murder. Before Judge Roan. Fulton superior court. January 4, 1913.</p>

<p>Indictment for murder. Before Judge Rawlings. Jefferson superior court. December 12, 1912.</p>

<p>Affidavit of illegality. Before Judge Edwards. Paulding superior court. February 14, 1912.</p>

<p>Complaint. Before Judge Maddox. Chattooga superior court. April 10, 1912.</p>

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

<p>Processiouing. Before Judge Thomas. Berrien superior court. March 20, 1912.</p>

<p>Petition for injunction. Before Judge Conyers. Camden superior court. October 5, 1912.</p>

<p>Petition for injunction. Before Judge Thomas. Tift superior court. November 2, 1912.</p>

<p>Equitable-petition. .Before Judge Ellis. Fulton superior court. May 2, 1912.</p>

<p>Petition for injunction. Before Judge Bawlings. Screven superior court. October 23, 1912.</p>

<p>Injunction. Before Judge Hammond. Richmond superior court. December 3, 1912.</p>

<p>Habeas corpus. Before Judge Sheppard. Tattnall superior court. August 20, 1912.</p>

<p>Petition for injunction. Before Judge Harris. Bibb superior court. July 27, 1912.</p>

<p>1. The petition as a whole was not subject to be dismissed on the grounds of demurrer urged against it. .</p> <p>(a) In so far as it sought to set up that the facts created an express trust by parol, it was demurrable.</p> <p>(&) An allegation as to what the plaintiffs believed the defendant’s testator would have done, had he lived, was demurrable.</p> <p>2. The evidence did not authorize the direction of the verdict. There was no evidence showing any express trust, or any express contract between the plaintiffs and the- testator of the defendant. Considered as an action for money had and received, it was barred at least as to most of the plaintiffs; and the verdict directed was for the full amount claimed to be due to all of the heirs of the former owner of the land, though one of them was not a plaintiff, but was the defendant in his character of executor of the person claimed to have originally been the debtor.</p> <p>3. Where the evidence showed that a person who had conveyed land to another desired .to convey the mineral interest therein to a different party, and was requested by one representing the proposed purchaser to get the deed which he had made, and did get it from the widow of his grantee, and her acquiescence in the sale was a material fact in the case, there was no error in admitting in evidence the statement of the persons who obtained the deed from the widow that the proposed vendor, who sent them, desired to convey the mineral interest m the land.</p> <p>4. Under such facts, there was no error in allowing the widow to testify that, after she sent the deed to such person, She received information of the conveyance made by him. This was admissible, not to prove that lie made the conveyance, hut to show the state of her knowledge in regard to it, where such knowledge was a material fact.</p>

<p>Vacation of supersedeas. Before Judge Fite. Dade superior court. March 20, 1912.</p>

<p>Certified question; from Court of Appeals. 4396.</p>

<p>Indictment for murder. Before Judge J. B. Park. Putnam •superior court. November 11, 1912.</p>

<p>Indictment for murder. Before Judge Mathews. Crawford superior court. January 3, 1913.</p>

<p>1. Where an information in the nature of a quo warranto is brought by. an individual to establish his right to an office as against an alleged usurper, it is not essential, in order to obtain leave to file the» information, that a rule nisi shall be first granted calling upon the respondent to show cause why the information should not he filed against him.</p> <p>{a) Where in such a case there is a petition praying leave to .file an “accompanying information in the nature of a quo warranto,” calling upon the respondent named therein to show cause why he should not be ousted from office for the reasons stated in the petition and the “accompanying information,” and the facts set forth in the information are positively verified, the judge may, without issuing a rule nisi, grant leave to file the information, and at the same time pass an order calling upon the respondent to show cause at a given time why he should not be ousted from the office claimed by the relator.</p> <p>2. As the petition and accompanying information constituted one proceeding, it was not subject to special demurrer on any of the following grounds, viz.: it did not show upon what facts the relator claimed the office; nor did it allege that the respondent was exercising the duties of the office; nor did it set forth when the term of office claimed by the relator began or ended.</p> <p>3. The general demurrers to the petition and accompanying information were properly overruled.</p> <p>4. Under the agreed statement of facts, which is set forth in the opinion, the judge did not err in holding that the relator was entitled to the office, and in ousting the respondent.</p>

Petition for injunction. Before Judge Hammond. Columbia-superior court. December 10/ 1912. C. E. Kohlruss filed his equitable petition against Julian J. Zaehery and the Harlem Oil & Fertilizer Company, and alleged substantially as follows: Petitioner is the owner and in possession of 404% acres of described land in Columbia County, near the town of Harlem, which land is worth $15,000.

<p>Equitable petition. Before Judge Felton. Bibb superior court. April 30, 1912.</p>

<p>1. The petition is not demurrable for any of the reasons assigned against it.</p> <p>(а) The petition is not multifarious.</p> <p>(б) The court erred in sustaining the demurrer.</p> <p>2. Mandamus is an available remedy where there is no other specific legal remedy for the legal rights of the person seeking the writ.</p> <p>3. The constitution of the State (Civil Code, § 6400) is not repugnant to the fourteenth amendment of the constitution of the United States on the ground that it does not provide an appeal to the superior court from the registrars upon the question of the payment of taxes by a taxpayer and voter, and therefore denies to the voter and taxpayer due ' process of law and the equal protection of the laws.</p> <p>(a) In such a case, sections 62 and 65 of the Civil Code afford any person who is unlawfully denied the right to sign the voters’ book, or to have his name placed upon the list of registered voters according to law, due process of law and the equal protection of the laws.</p> <p>(b) Generally the rights guaranteed to the citizens by the constitution of the State are not accompanied with the remedy available for enforcing those rights, or with the provision for due process of law and the equal protection of the laws, but the manner of enforcing the rights is usually left for legislative enactment; and where the legislature has provided due process, and the equal protection of the laws, as to any paragraph of the State constitution, the latter is not obnoxious to the fourteenth amendment of the constitution of the United States, as not affording due process or the equal protection of the laws.</p> <p>(c) Where a petition alleges that the plaintiffs were registered voters under the provisions of section 6398 of the Civil Code, and that the registrars of a certain county wilfully refused to put their names on the list of registered voters as required by law, and where the pleadings raise no question as to whether the voters have placed their names in the voters’ book as required, sections 62 and 65 of the Civil Code do not apply.</p> <p>(dl Where in such a case the prayer was that a mandamus should be issued against the registrars, requiring them to enroll the names of plaintiffs upon the registered voters’ list filed with the clerk of the superior court, the petition was not subject to demurrer because each of the plaintiffs had an adequate and complete remedy at law by taking an appeal from the decision of the registrars. It was the failure on the part of the registrars to act, of which complaint was made; and no appeal can he taken from such failure. In such a case mandamus is an available remedy.</p>

<p>Temporary alimony. Before Judge Mathews. Bibb superior court. October 19, 191&.</p>

<p>The petition in this ease is sufficient to withstand a general demurrer.</p>

<p>Action for breach of contract. Before Judge Daniel. Upson superior court. November term, 1911.</p> <p>P. G. Daniel instituted an action for damages against T. J. Beeves. The petition as amended declared upon the following written instrument:</p> <p>“Jany. 19, 1909. I hereby agree to sell to P. G. Daniel 50 bales of cotton delivered at Thomaston between the first and 30th days of October next. The delivery is to be made at such time at seller’s option in lots of not less than fifty bales. Cotton to' average 500 pounds per bale. If cotton does not average 50Q pounds per bale I willt deliver a sufficient number of bales to bring up the average to 500 pounds per bale. The cotton to be of any grade between strict ordinary and fair, inclusive, at the price of 10.27/100 cents per pound for Inman, Akers & Inman 4s. Said grade being good middling American Standard classification, with deduction and addition for other grades according to Inman, Akers & Inman’s difference in effect on the day of delivery. It is fully understood and expressly agreed by the parties to this contract that same can be settled by payment of money upon failure to delivery of the actual cotton in square mercantile bales weighing an average of 500 pounds, as aforesaid. T. J. Beeves.</p> <p>“We accept the above contract, with its conditions and obligations. P. G. Daniel.”</p> <p>It was alleged that at the time of the making of the contract the plaintiff had made other contracts for sale of cotton to be delivered to other persons, including manufacturers, and desired the cotton to fill his own contracts; that the defendant was a farmer engaged in raising cotton; and that in making the contract both parties contemplated actual delivery of the cotton contracted to be sold. After the petition had been amended to meet the grounds of special demurrer (which were, that there was no cause of action set forth, and that the petition was defective because of a failure to attach a copy of the contract sued on), the defendant renewed his demurrer, with the additional grounds, that the contract showed upon its face that it was a gambling transaction, and for that reason, illegal and void; that it was unilateral; and that the amendments offered sought to alter and change the terms of the written contract sued on, by adding other and different stipulations and agreements not embraced or contained in the original contract. The court sustained the demurrer and dismissed the case, and the plaintiff excepted.</p>

<p>Ejectment. Before Judge Daniel. Butts superior court. August 19, 1912.</p>

<p>Equitable petition. Before Judge J. B. Park. Morgan superior court. September 3, 1912.</p>

<p>Injunction and receiver. Before Judge Jones. Hall superior court. November 25, 1912.</p>

<p>Money rule. Before Judge Edwards. Douglas superior court. March 21, 1912.</p>

<p>Where a husband as the head of a family has a homestead set apart for himself and wife, and the widow after his death continues upon the property constituting the homestead for a great number of years (more than twenty years in the present ease), enjoying during that period the rents, issues, and profits of the homestead, she will not be allowed, after the expiration of such a time, to take a year’s support out of the homestead property, but will be conclusively presumed to have made an election in favor of the enjoyment of the homestead as such, and against the right to have a year’s support set apart to her.</p>

<p>Injunction and receiver. Before Judge Bell. Fulton superior court. September 27, 1912.</p>

<p>Injunction. Before Judge Jones. Hall superior court. June 15, 1912.</p>

Equitable petition. Before Judge Jones. Hall superior court. August 1, 1912. The Virginia-Carolina Chemical Company, Billups Phinizy, and Hardeman & Phinizy filed an action against J. M. Eylee, his wife, Chastalet Eylee, and T. E. Atkins, praying for the cancellation of certain deeds, the appointment of a receiver, and other equitable relief.

<p>1. Where an injunction is denied and the decision is brought to the Supreme Court, by writ of error, but no supersedeas is granted, a motion to dismiss such writ of error, on the ground that before the hearing in this court the act or acts against which it was sought to enjoin have been completed, will be denied when the evidence offered by the defendant in error in support of the motion to dismiss is controverted by the opposite party as to facts material to the ground of the motion.</p> <p>2. Where provision is made by sections 5240 and 5241 of the Civil Code for the exercise of the right of eminent domain in connection with the generation and transmission of electricity for supplying light, heat, and power to the public, and section 5242 declares that “the power given-under the two preceding sections shall not be used to interfere with any mill or factory actually in operation,” the prohibition contained in the last section applies to mills and factories operated by steam-power, as well as to those operated by water-power.</p> <p>3. The presiding judge, in refusing to grant the injunction prayed, having stated in his order that he had concluded that he had “no discretion in the premises,” and having based his ruling on an erroneous view of the-law which he apparently thought concluded him, and not upon a full consideration of the application for injunction on the issues of law and fact, his judgment is reversed, with direction to rehear the application and pass upon it on its merits.</p>

<p>Indictment for murder. Before Judge Parker. Charlton superior court. December 28, 1912.</p>

Partition. Before Judge Maddox. Walker superior court. January 26, 1912. Elsie Garrett filed her petition for partition of certain land. Temperance Gilreath filed objections. The petitioner based her claim of fee-simple title to an undivided half interest in the lands upon the following' deed: ' “Georgia, Walker County.

<p>Complaint for land. Before Judge Boan. Douglas superior court. December 12, 1911.</p>

<p>Action for damages. Before Judge J. B. Park. Baldwin superior court. March 19, 1912. •</p>

<p>Petition for injunction; from Polk. Motion to dismiss.</p>

<p>Complaint. Before ¿fudge Freeman. Carroll superior court. May 16, 1912.</p>

Before Judge J. B. Park. Morgan superior court. March 8, 1912. Zach Martin died in 1907, leaving 'a will and naming J. H. Gaissert as executor, who qualified as such. The testator left his wife, the plaintiff in error here, and their son, Steven B. Martin, as his only heirs at law and legatees under his will. After the probate of the will in solemn form, the widow made application for a year’s support, and she was awarded the sum of $2,300, which was paid by the executor.

<p>Petition for injunction. Before Judge J. B. Park. Baldwin superior court. December 2, 1912.</p>

<p>Quo warranto. Before Judge J. B. Park. Baldwin superior court. December 2, 1912.</p>

<p>Habeas corpus. Before Judge Pendleton.- Fulton superior court. December 33, 1913.</p>

<p>Petition for injunction. Before Judge Jones. Hall superior court. October 19, 1912.</p>

<p>Indictment for murder. Before Judge Freeman. Heard su.perior court. January 29, 1913.</p>

<p>1. In extending to power companies generating electricity for public use the right to condemn rights of way- or other easements on the lands of others, in order to run lines of wire, maintain dams, etc., the statute (Civil Code, §§ 5240-2) declares that such power of condemnation shall not be used to interfere with any mill or factory actually in operation. The protection accorded to mills and factories extends to appurtenances necessary to their operation, but not to .property from which the crude material is taken for supplying such mill or factory.</p> <p>2. There was no abuse of discretion in refusing an interlocutory injunction.</p>

<p>Claim. Before Judge Maddox. Floyd superior court, October 24, 1911.</p>

<p>Petition for injunction. Before Judge Maddox. Floyd superior court. November 30, 1912.</p>

<p>Motion to dissolve injunction, etc. Before Judge Maddox. Floyd superior court. November 29, 1912.</p>

<p>In a suit by one mill-owner against a lower mill-owner on the same stream, to recover damages alleged to have been sustained in consequence of the raising of the height of a dam by the lower mill-owner so as to back the water in the stream to a height that interfered with the operation of the plaintiff’s mill, the court erred in charging the jury that “if at any time this water was off the wheel [of the plaintiff’s mill], the defendants would have no right to put it back on her, although previous to this time it may have been on her; that is the rule which will govern you in that respect;” there being evidence from which the jury would have been authorized to find that for more than twenty years the dam of tlie lower mill-owner had ’been erected and maintained at such a height as to back the water ud to its present level before the erection of the upper mill, and that if there had been a subsidence of the waters in the mill-pond, so that the flowage backward did not affect the wheel of the upper mill-owner, such subsidence was in consequence of leakage; that the raising of the water had been caused, not by raising the height of the lower dam, but by the repairing thereof; that the lowering of the level of the water had been temporary, caused by use of the water or leakage, and not for such a length of time as would cause a loss of the easement by abandonment or forfeiture by • nonuser, under the provisions Of the Civil Code, § 3644.</p>

<p>Action foi breach of warranty. Before Judge Edwards. Haralson superior court. January 18, 1912.</p>

<p>Action for damages. Befoie Judge Edwards. Paulding superior court. July 13, 1912.</p>

<p>Injunction. Before Judge Edwards. Haralson superior court. October 14, 1912.</p>

<p>Action for damages. Before Judge Freeman. Carroll superior court. July 10, 1912.</p>

<p>1. ’ Where a petition in an action of trover alleges that the defendant is in possession of the property sued for, and it does not appear that ho lawfully acquired the possession, it is not necessary to allege that the plaintiff, before the suit was brought, demanded possession of the defendant and that he refused to comply.</p> <p>2. Trover may be maintained for the wrongful conversion of every species of personal property which is the subject of private ownership, and which belongs to the plaintiff and is of some value to him, though it may have no commercial value. Accordingly, trover lies for the recovery of tax receipts alleged to be of value to plaintiff.</p>

<p>Equitable petition. Before Judge Daniel. Butts superior court. February 21, 1912.</p> <p>Monroe Phillips, as guardian of Elizabeth Atkinson, a minor, instituted an equitable action against Mrs. Lottie C, Atkinson for the purpose of having title to undivided interests in certain real estate and personal property decreed to be in the ward, for an accounting as to rents, etc., and for a judgment for the amount to-which the ward might be equitably entitled, and for general relief. The petition alleged, in substance, that T. P. Atkinson died intestate, leaving property consisting of undivided interests in described- real estate and personal property. The sole heirs at law were the defendant, Mrs. Lottie C. Atkinson, a posthumous child, Tommie Atkinson, and petitioner’s ward, Elizabeth Atkinson, a child of a former marriage. The wido-w became administratrix of the estate, and made application to the court of ordinary for a year’s support-. The whole of the estate was set apart for such purpose. Iu setting it apart $500 in money and half of the kitchen furniture were set apart for the plaintiff’s ward, while the rest of the estate was set apart for defendant ánd the child Tommie Atkinson. The latter died after the property was so set. apart, leaving no debts other than for funeral ‘expenses, physician’s bills, or the like, and without heirs at law except her mother and petitioner’s ward. The defendant assumed exclusive possession and ownership of all of the property set apart to her for the use of herself and her child Tommie, and appropriated the rents, issues, and profits thereof to her own use, denying that the plaintiff’s ward had any interest therein. No attack was mad'e on the judgment setting apart the year’s support, but its validity was conceded, and the plaintiff’s action was predicated on the rights alleged to exist thereunder. The action was dismissed on general demurrer, and the plaintiff excepted.</p>

<p>Equitable petition. Before Judge Daniel. Henry superior court. July 13, 1912.</p>

<p>Complaint. Before Judge Daniel. Henry superior court. Au.gust 19, 1912.</p>

<p>Petition for specific performance. Before Judge J. B. Park. Morgan superior court. March 4, 1912.</p> <p>Studdard filed Ms equitable petition 'against Hawkins, seeking to obtain a decree for specific performance of a contract, and for other relief. The memorandum of the contract was as follows: “Eutledge, Ga., April 15, 1905. Eeceived of John P. Studdard, twenty-five dollars, closing purchase of the Hanleiter place, containing 187.6 acres one tract and one 4 acres more or less, at</p> <p>his $15.00 per acre. 0. M. x Hawkins. mark</p> <p>“Contract made and signed in presence of “F. W. Oxford, N. P. & Ex. Off. J. P.”</p> <p>The case has been twice before the Supreme Court, and will be found reported in 132 Ga. 265 and 136 Ga. 727, on each occasion the judgment being reversed. When the case again came on for trial, counsel for the plaintiff offered the following amendment to the petition. “And now comes the petitioner, and strikes all amendments of paragraph 5 of the petition, heretofore allowed, and in amendment of said paragraph alleges: On the afternoon said contract of sale was made, and presently thereafter, plaintiff, being ready and able to pay the balance of the purchase-money therein mentioned, in parol offered to the defendant to go to his bank near by, where the money was deposited, and pay the same. The defendant did not repudiate his obligation under said contract, but did waive the time of payment, and the essentiality of the timé thereof, and in parol appointed a later date on which he would receive said payment. But for said waiver and appointment of a later day petitioner would then and there have tendered to defendant the balance of said purchase-money. Belying on said waiver and appointment, he waited until the appointed day and then formally tendered, as set out in par. 5, the sum there stated. Defendant had in the meanwhile received, by petitioner’s consent, the rents on said land for 1905, which occurred since said sale and which belonged to petitioner, a sum of two hundred and fifty dollars, and the amount tendered was more than the full balance of purchase-money with interest thereon from the time it was due under said contract. To induce-petitioner to delay formal tender as aforesaid, and then to insist that the delay forfeited petitioner’s contract, would be for defendant to commit a fraud upon petitioner and his rights under said contract; and defendant is estopped to question the timeliness of said tender.” This amendment was allowed over objection, but subject to demurrer. Defendant then demurred to the petition as amended, on the ground that it s'et out no cause of action, and did not allege facts sufficient to authorize a recovery. He especially demurred to the amendment, on the ground that it sought to add to or vary the written contract set out in the original petition. The presiding judge sustained the demurrer to the petition as amended, “as it set forth no cause of action, upon the decision of the Supreme Court in this case.” The plaintiff excepted to the sustaining of the demurrer; and the defendant filed a cross-bill of exceptions,- assigning error on the allowance of the amendment.</p>

<p>1. Where a motion is made to dismiss the return of processioners because of incompleteness and non-compliance with the statute, it is competent to allow the processioners (they being in office at the time) to amend their return; and if the deficiencies pointed out in the motion are cured by the amendment, it is proper to deny the motion. Such amendment may be made after a protest is filed to the processioners’ return, and during the trial of the issue formed thereon.</p> <p>2. Where an application is made to certain persons as processioners to have the land of the applicant processioned, a variance in the initials of one of the processioners as stated in the application from that as stated in the return, where no point as to the identity of the person is raised, is insufficient to invalidate the return.</p> <p>3. The evidence was sufficient to support the verdict.</p>

<p>Action for breach of contract. Before Judge J. B. Park. Baldwin superior court. August 19, 1912.</p> <p>Bobson & Evans made with Hale &'Sons the following contract:</p> <p>“Nashville, Tenn., Dec./8/09.</p> <p>“Bobson & Evans, Milledgeville, Ga.</p> <p>“We are pleased to confirm sale to you to-day by wire through Messrs. B. T. Birdsey & Co., as follows:</p> <p>500-160#sax wh. oats at 54%, last of Jan., 1910.</p> <p>300-160#sax#3 wh. oats at 55%, last of Feb., 1910.</p> <p>300-160 #sax wh. oats 'at 55%, last of March, 1910.</p> <p>300-160# wh. oats at 56%, last of April, 19Í0.</p> <p>600-160#sax#3 wh. oats at 57%, May, 1910.</p> <p>“Nashville official weights and grades final. Shipments subject to draft drawn with exchange and collection charges; payable on 'arrival of car; shipment as follows: J an., Eeb., March, April, and May, 1910. Subject to freight charges. Price and terms accepted.</p> <p>“Yours truly, J. B. Hale & Sons, Per D. W. L.</p> <p>“Bobson & Evans, Per B. C. Bobson.”</p> <p>Hale & Sons brought suit against Bobson & Evans for a breach of this contract, alleging, among other things, as follows: The oats agreed to be delivered the last of January and those to be delivered the last of February were delivered accordingly. On April 6, before the delivery of any of the remaining oats, or the furnishing of shipping orders on request, Robson & Evans advised the plaintiffs that they would not accept any further shipment; and instructed the plaintiffs to cancel the contract. The plaintiffs immediately advised Robson & Evans that they were unwilling to cancel the contract except upon condition that Robson & Evans would pay them two cents per bushel for the remaining 6,000 bushels. The plaintiffs continued to hold such 6,000 bushels of oats at their place of business, in Nashville, Tennessee, awaiting shipping orders. After Robson &■ Evans had been repeatedly. informed that the plaintiffs would not cancel the contract except upon the terms above stated, and repeatedly requested to give shipping .instructions, so that the plaintiffs might forward the oats in accordance with the -contract, they failed and refused to do so. The plaintiffs held the oats until June 13, and then sold them at the market price at that time. Deducting the price which they brought from the aggregate contract price, with the cost of sacking and storage added, there was a balance of $567.46. The sale was made after frequent efforts to dissuade Robson & Evans from repudiating the contract, and after giving them written notice of intention to sell and hold, them liable for the difference between the contract price and the price which the oats might bring in the Nashville market.</p> <p>The defendants admitted the making of the contract, and that they refused to give shipping instructions, and, on April 6, notified the-plaintiffs that they would not accept the oats which were to be delivered in March, April, and May. They also pleaded that at the time of such notice oats for March, April, and May delivery were worth more than the contract price, and that the plaintiffs, after the receipt of the notice, held the oats until June 13, during which period the market price of oats declined. The defendants insisted that the delay was unreasonable, and that they were not liable for damages resulting from the fall in the market price.</p> <p>The jury found in favor of the plaintiffs $557.46, with interest-from June 13. The defendants moved for a new trial, which was refused, and they excepted.</p>

Before Judge J. B. Park. Baldwin superior court. December 2, 1912. Georgia Jeffers instituted an action of trover against Eebecca Harper, seeking to recover certain money. The plaintiff also filed an affidavit for the purpose of requiring bail.

<p>Habeas corpus. Before Judge J, B, Park. Baldwin superior court. December 17, 1912.</p>

<p>Mortgage foreclosure. Before Judge Gilbert. Chattahoochee superior court. February 26, 1912. .</p> <p>J. C. Tyner executed the following instrument:.</p> <p>“Georgia, Muscogee County. Columbus, Ga., March 2, 1910.</p> <p>“$175.00. By the first day of October, 1910, next, I promise to pay Wynn & Robinson, of order, one hundred and seventy-five dollars, for value received, as purchase-money, for one brown mare mule, white nose, smooth mouth, in the sale of which there is no warranty of any kind. The title to which aforedescribed property shall be and remain in the said Wynn & Robinson, until this obligation is fully paid off, and discharged. It is agreed, however, that if said property, or any part thereof, is lost by death, destruction, or otherwise, such loss shall fall on the makers of this obligation and not on the said Wynn & Robinson, their heirs or assigns; but I agree to pay this obligation notwithstanding. To further secure the payment of this obligation I hereby mortgage, sell, and convey to the said Wynn & Robinson, their heirs and assigns, the following described property, to wit: Fifty acres of land (50), more or less, known as the Northeast part of land lot No. 203 in the 10th District of originally Muscogee County, now Chattahoochee County, Georgia, said 50 acres bounded as follows: West by branch, South bjr branch to line running North which joins .land of J. M. Green, and bounded on North by above-described lands, being and lying in Chattahoochee County near Box Springs, Georgia. Which property so mortgaged I represent to be owned by me, and free and clear of all liens or incumbrances of every kind and description whatever. If this obligation is not promptly paid at maturity, I agree that the said Wynn & Robinson may, in addition to any other remedies provided by law for the enforcement of the collection hereof, at their option elect to treat' this instrument as a mortgage upon the property title to which is retained by the said Wynn & Robinson by the terms hereof, and upon the execution of a bill of sale to the maker or makers hereof to such property, apd the filing and recording of such bill of sale in the office of the clerk of the superior court „of the county of the residence of such maker or makers, or any one of them, shall give the right to the said Wynn & Robinson to proceed to foreclose this instrument as a mortgage upon said property, together with the other property herein mortgaged, in the same manner as mortgages upon personal property are foreclosed under the laws of this State; and the maker or makers hereof hereby ratify and confirm the sale of all or any part of said property sold under such foreclosure, and agree to pay all the costs and expenses of such foreclosure and the sale of the property thereunder, including the cost of recording such bill of sale. This obligation shall bear interest from date at the rate of eight per cent, per annum; and in the event the same is ¡olaced in the hands of an attorney for collection after maturity, I agree to pay ten per cent, upon the amount due as attorney’s fees. As against the payment of this note, the makers waive all right to claim the benefit of any homestead or exemption1 of personalty provided for under the constitution and laws of the State of Georgia, or any other State. In witness whereof I have hereunto set my hand and seal, this 2 day of March, 1910.” This was signed by Tyner and attested by two witnesses, one of whom was a notary public.</p> <p>On November 16, 1910, Wynn & Eobinson executed and filed an instrument in which they recited the one above set out, and stated that Tjmer made default in payment, and that for the purpose of foreclosing on the property sold, in accordance with the terms of the note, they conveyed to him the title to the mule in order to levy thereon under such foreclosure. Thereupon an attorney for Wynn & Eobinson made affidavit that Tyner was indebted to them in the sum of $115 principal, and $98.06 interest, together with $11.50 attorney’s fees, “for the purchase of a certain brown mare mule, white nose, smooth mouth; and affiant makes this affidavit so that a mortgage fi. fa. may issue and be levied upon said mule.” The clerk of the superior court issued an execution, and it was levied upon the mulé. It is inferable from the record that an affidavit of illegality was filed, as the case was returned to the superior court. When it came on for trial, the defendant demurred to the affidavit of foreclosure and the proceedings thereunder, on the ground that the contract was not a mortgage, but was a contract of retention of title to secure the purchase-price of the property, and was not subject to summary foreclosure as a mortgage on personalty. The demurrer was sustained, and the plaintiffs excepted.</p>

<p>1. An ordinary can not act as executor in the county of which he is ordinary.</p> <p>2. Where an executor, who is also the ordinary of the county, files with the clerk of the superior court (there being no judge of the city or county court) a petition to probate the will in common form and to have himself qualified as executor, and the clerk orders the will to probate and allows the executor to qualify as such, and on appeal to the superior court the trial judge hears the ease without the intervention of a jury, there is no error in his affirming the judgment of the clerk as to the probate of the will, and reversing the judgment allowing the executor to qualify as such.</p>

<p>Ejectment. Before Judge 'Worrill. Terrell superior court. February 3, 1912.</p>

<p>Action for damages. Before Judge Worrill. Bandolph superior court. February »3, 1912.</p>

<p>1. The evidence examined and held to have made issues that should have been submitted to a jury.</p> <p>(a) Where a transaction between a husband and wife is attacked for fraud by the creditors of the husband, the onus is on the husband and wife to show that the transaction was fair.</p> <p>2. Matters which are defensive to the plaintiff’s action may be averred in amendment to the answer, even though such matters may be insufficient to afford the affirmative equitable relief therein prayed.</p> <p>3. Where a wife executes to her-husband a deed to her land under the belief that she is giving a security deed to another to procure money* for her own benefit, and this deed is not recorded until after credit is extended to the husband, in the absence of evidence that the credit was extended on the husband’s ostensible ownership of the land it is competent for the wife to show that the deed to her husband was procured by imposition.</p>

<p>. Complaint. Before Judge Worrill. Early superior court. July 13, 1912.</p>

<p>Complaint. Before Judge Worrill. Early superior court. July 13, 1912.</p>

<p>1. The decision in the case of Smith v. Whiddon, 138 Ga. 471 (75 S. E. 635), is controlling upon the issues in the present case.</p> <p>2. The case of Smith v. Whiddon, supra, after review, is affirmed, and distinguished from the older case of Hartfield v. City of Oolumbus, 109 Ga. 112 (34 S. E. 288).</p>

<p>Petitioner for mandamus was appointed judge of the city court of Newton for the term of four years from November 1, 1906, and until his successor should be appointed and qualified. He qualified and discharged the duties of the office until January 1, 1911. In August, 1910, he was appointed for a like term from November 1, 1910, but received no commission under the reappointment until January, 1912, and did not qualify thereunder, until that time. After his reappointment in August, 1910, the General Assembly passed an act abolishing the city court of Newton on and after January 1, 1911, provided the act should be approved by a majority of the qualified voters of Baker county at an election to be held as designated by the act. An election was held in October, 1910, which resulted in the approval of the act. In January, 1912, the Supreme Court of this State held the act to be nugatory and ineffectual. In obedience to the act and the result of the election, all the records, books, papers, etc., in the office of the clerk of the city court were taken possession of by the clerk of the superior court of Baker county, who was ex-officio clerk of the city court, and, accepting the act and the election as valid, petitioner on this account alone failed to discharge any of the duties of the office of judge of the city court during the year 1911. Held.: (1) that petitioner was judge of the ■city court during the year 1911; (2) that he never abandoned the office; (3) that he was entitled to receive the salary annexed to the office for the year 1911; (4) that the judge erred in granting a nonsuit.</p>

<p>Complaint. Before Judge Thomas. Colquitt superior court. May 4, 1912.</p>

<p>Appeal. Before Judge Thomas. Berrien superior court. March 19, 1912;</p>

<p>Equitable petition. Before Judge Thomas. Berrien superior court. June 29, 1912.</p>

<p>Claim. Before Judge Thomas. Tift superior court. August 14, 1912.</p> <p>On March 23, 1909, an execution was issued in favor of J. B. Brown & Co. v. G. L. Taylor, J. W. Taylor, and J. H. Taylor. It recited that it was .based on a judgment rendered on March 13, 1909. On February 14-, 1912, it was levied on a lot of land “as the, property of, and in possession of, the defendant, J. W. Taylor.” A claim was interposed by Mrs. S. A. Taylor, the wife of J. 'W. Taidor. On the trial the plaintiffs introduced in evidence the execution, with the entry of levy thereon, and rested. The claimant. introduced a deed from the defendant in fi. fa. to the claimant, dated November 3, 1905, and recorded January 19, 1912. The claimant thereupon rested. The plaintiffs then introduced evidence tending to show, that the land was conveyed to the defendant in fi. fa. on March 10, 1905; that he had returned it for taxation; that he had obtained a loan from the bank, and had executed a deed to the land to secure the loan, after the daté of the deed from him to his wife; that neither the defendant in fi. fa. nor the claimant ever told the official of the bank who acted for it that the property was hers, or that she had any claim to it; that one of the plaintiffs sold a horse to one Charlie Taylor, and J. W. Taylor signed the note with him; that the plaintiff knew that Charlie Taylor had no property, and questioned J. W. Taylor about his responsibility, and the latter stated that he owned the property now involved in the claim ease; and that on the faith of this statement credit was extended to Charlie Taylor.</p> <p>The claimant introduced evidence tending to prove, that she had bought another lot of land and paid for it with her own money, that she exchanged that lot with her husband for the one now involved in controversy; that she authorized him to obtain a loan from the mortgage company, expecting to receive a part of it, but she did not do so; that she did not tell him to secure a loan on the property in his own name, or authorize him to represent to the company that it was his property, but did authorize him to obtain the loan, though he did not have any deed except the one which he had before he exchanged lots with her; that her husband told her that they had to pay a debt' which they owed, and that he wanted to get money and pay such debt with a part of what he expected to receive, and she 'agreed thereto. The defendant in fi. fa., as a witness for the claimant, denied making any representations as to the ownership of the property at the time he signed the note on which the judgment was based, but admitted that he knew he could not pay for the horse if Charlie Taylor, the purchaser of it, failed to do so.</p> <p>In rebuttal the plaintiffs in fi. fa. introduced evidence tending to show that the lot which the claimant contended she exchanged with hex husband for that' involved in this case had been bought by the husband from another person, and paid for by him; and that when the last payment was made they did not have witnesses present to attest the deed, and the defendant in fi. fa. suggested that it be made to his wife, and he could act as a witness, which was done.</p> <p>The jury found the property subject. The claimant moved for a new trial. It was refused, and she excepted.</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. November 4, 1912.</p>

<p>Complaint. Before Judge Pendleton. Pulton superior court. May 27, 1912.</p>

<p>Equitable petition. Before' Judge Boan. DeKalb superior court. March 8, 1912.</p>

<p>Temporary alimony. Before Judge Sheppard. Tattnall superior court. October 7, 1912.</p>

Petition for injunction. Before Judge Brand. Gwinnett superior court. November 22, 1912.

<p>Attachment for contempt. Before Judge Morris. Pickens superior court. June 22, 1912.</p>

<p>1. The reception in evidence of testimony of an impeaching nature, referred to in the opinion, will not require the grant of a new trial, in the light of all the evidence.</p> <p>2. The act of August 13, 1910 (Acts 1910, p. 90), regulates the speed and. manner of operating automobiles on the public highways. Where the acts of negligence alleged to have caused the damage consist of the violation of that act, a new trial in this case is not required because, in an instruction applying the statute, the court charged as follows: “In this connection I charge you that the operators and owners of automobiles have the same right to use public roads as the owners of other vehicles or machines, but, it being a dangerous machine, the law has prescribed certain rules by which they are to be governed in running on the public highway; and if in running these machines they come within the rule or comply with the law, and damage results therefrom, they are not liable.”</p> <p>3. There is no merit in the other exceptions to the charge, and the evidence is sufficient to support the verdict.</p>

<p>Indictment for murder. -Before Judge Daniel. Pike superior court. January 2, 1913.</p>

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

<p>Petition for injunction. Before Judge Eite. Murray superior court. November 23, 1912.</p>

<p>Complaint. Before Judge Bawlings. Greene superior court. July 24, 1912.</p>

Equitable petition. Before Judge Thomas. Colquitt superior court. April 3, 1912. Mrs. Uretta Roland filed her equitable petition, seeking to cancel a deed which she made to her husband. A demurrer .was filed to the petition on certain grounds. It was overruled. The case wás brought to this court by bill of exceptions, assigning error upon the overruling of the motion and striking certain parts of the answer. The judgment was reversed as to some of the rulings. 131 Ga. 579.

Petition for injunction. Before Judge Brand. Clarke superior court. November 22, 1912.

<p>1. Where it appears from the bill of exceptions that the judgment excepted to is the refusal to grant a motion for new trial, the bill of exceptions will not be dismissed because of the omission to specify the brief of evidence as a part of the record; but if the omitted record is necessary to the proper adjudication of the ease, this court of its own motion will cause a certified copy of it to be transmitted to the clerk of the Supreme Court.</p> <p>2. Where in the caption of a bill of exceptions the case is stated as W. E. Thompson et al. v. H. H. Simmons and Company, a firm composed of H. H. Simmons and H. E. Myers, and it is recited therein “that at the June term, 1912, of the superior court of Chatham county, Georgia, to wit, on August 3rd, 1912, before his honor, Walter G. Charlton, judge presiding, there came on to be heard the above-stated case, the same being petition for injunction,” etc., a motion to amend the bill of exceptions from the record, by supplying the names of all the plaintiffs named in the petition, will be allowed, and upon the allowance of the amendment a motion to dismiss on the ground that the bill of exceptions does not state all of the parties to the cause will be denied. Orossley v. Leslie, 130 Ga. 782.</p> <p>3. A bill of exceptions will not be dismissed because in the assignment of error it is stated that “the defendant excepted and now excepts,” etc., where from the whole bill of exceptions it is apparent that the word “defendant” was inadvertently used for “plaintiffs.”</p> <p>4. The other grounds of the motion to dismiss the writ of error are without merit.</p> <p>5. It is no defense to a proceeding brought under the Civil Code, §§ 5335-7, to abate and enjoin a “blind tiger” as a nuisance, that the sale of spirituous, malt, or- intoxicating liciuor was in open violation of law.</p>