Volume 140 — Georgia Reports

Injunction. - Before Judge Jones. Eabun superior court. January 27, 1913. The Northern Contracting Company, a corporation of the State of New York, contracted with the Ambursen Hydraulic Construction Company, a corporation of the State of New Jersey, for the construction of a dam across the Tallulah river in Eabun county, Georgia.

<p>If one desiring to purchase a stock of merchandise in bulk demands and receives from the vendor a written statement under oath, purporting to contain the names and addresses of all the creditors of the vendor, together with the amount of the vendor’s indebtedness to each of them, and, within the time required by the statute, due notice of the proposed sale, the price to be paid, and the terms and conditions thereof is given by the purchaser to each of the creditors whose names appear on the list so furnished, and thereafter the purchaser in good faith pays over to the vendor the purchase-price agreed on, without notice or reason to suspect that the vendor has omitted from the sworn list the name of any of his creditors, the sale is not void, either in whole or in part, by reason of the fact that the seller omitted to name one of his creditors and the purchaser failed to give that creditor notice of the sale, though such creditor did not in fact have any notice of the sale, and though the seller is insolvent.</p>

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

<p>Indictment for murder. Before Judge Thomas. Fulton superior court. February 15, 1913.</p>

<p>Complaint. Before Judge Daniel. Pike superior court. February 10, 1912.-</p>

<p>Petition for direction. Before Judge J. B. Park. Putnam superior court. March term, 1912.'</p>

<p>Complaint. Before Judge Conyers. Glynn superior court. July 27, 1912.</p>

Alimony, etc. Before Judge Pendleton. Fulton superior court. June 14, 1912. On January 20, 1912, Mrs. Grace Macy Keefer filed in Fulton superior court her petition against D. H. Keefer and others, alleging in substance as follows: On April 11, 1906, she was married to D. H. Keefer in the city of New York. They came almost immediately to the city of Atlanta, where the defendant had previously resided.

<p>1. The general rule is that where a joint contract is the subject of a suit, a recovery against one of the joint obligors merges the entire cause of action, and bars any subsequent suit on the same contract against any of the other debtors.</p> <p>2. But under the Civil Code, § 5591, when two or more joint contractors are sued in the same action and service is perfected on one or more of such joint contractors, and the officer serving the writ shall return that the rest are not to be found, the plaintiff may proceed to judgment and execution against the defendants who are served, in the same manner as if they were the sole defendants.</p> <p>3. Where suit is brought against two joint obligors on a promissory note, both within the jurisdiction of the court, and no return of non est inventus as to either is made by the officer serving the writ, and it does not otherwise appear that either of the joint contractors is without the jurisdiction of the court, or is dead, but on the contrary it appears that both joint contractors are within the jurisdiction of the court, and one only has been served with process, and judgment is had against him, and later the other is sued on the same joint contract, the judgment against the first merges the entire cause of action, and bars a recovery in the subsequent suit on the same contract against the other joint obligor.</p>

<p>Mandamus. Before Judge Pendleton. Fulton superior court. December 13, 1912.</p> <p>The Commissioners of Roads and Revenues of Fulton. County instituted three separate actions against A. P. Stewart,- tax-collector, J. R. Wilkinson, ordinary, and T. M. Armistead, tax-receiver, of Fulton County, seeking the writ of mandamus to compel each of them to file detailed statements of the number of assistants needed and the amounts necessary to be expended for deputies, assistants, bookkeepers, clerks, and other employees of his office for the year 1913, as provided in section 5 of the act of August 22, 1911 (Acts 1911, p. 186). The defendants severally answered, setting up that the act of the legislature requiring such statement was unconstitutional and void, and specifically setting forth wherein it was contended that the act was unconstitutional. On the hearing the cases were presented in such manner as to make the ruling dependent upon the constitutionality of the act. In each instance the judge granted a mandamus absolute as prayed, thereby holding in effect that the act was not subject to any of the attacks made upon it. The defendants severally excepted to the judgment. All the cases were heard in the Supreme Court together, and are considered together.</p>

Money rule. Before Judge Daniel. Pike superior court. Held: among other things, that the note given by the mortgagors to the fertilizer company and signed or indorsed by the mortgagee (who afterwards transferred to the company the fi. fa. based on a summary foreclosure of the mortgage given to him) was based on an illegal and immoral consideration and was void; that the mortgage transferred…

<p>Appeal from condemnation. Before Judge Littlejohn. Stewart superior court. May 20, 1912.</p>

<p>Claim. Before Judge Daniel. Butts superior court. May 21, 1912.</p>

<p>Processioning. Before Judge Thomas. Thomas superior court. April 19, 1912.</p>

<p>Equitable petition, etc. Before Judge Martin. Dodge superior court. July 30, 1912.</p>

<p>Claim. Before Judge Thomas. Tift superior court. April 14, 1912.</p>

<p>1. The grantee in a deed conveying land to secure a debt, after maturity of the debt and refusal to pay by the grantor, may maintain an action for the recovery of the land; and in the absence of appropriate pleadings on the part of the defendant, asking equitable relief, the plaintiff may have a judgment for the recovery of the land.</p> <p>(a) A general demurrer was properly overruled.</p> <p>2. While the deed which was the basis of the plaintiff’s action in the present case recited that the debt to secure which the deed had been executed was evidenced by notes, it was competent on the trial for the plaintiff to prove that as a matter of fact the debt had been created but that the defendant had failed to give the notes which it was intended that he should give.</p> <p>3. By defending the action the defendant admitted possession, and no evidence of this was required.</p> <p>4. The judge did not err in directing a verdict.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. June 27, 1912. Carl Witt brought an equitable petition against Roff Sims, W. E. Wimpy, and the clerk of the superior court. He alleged in'substance as follows: On the second day of January, 1909, the plaintiff entered into a writing with Roff Sims, which was as follows: “Atlanta, Ga., January 2nd, 1909.

<p>Action for breach of contract. Before Judge Pendleton. Fulton superior court. June 10, 1912.</p>

<p>1. Where a landowner and a railroad company contract in writing that in consideration of the landowner’s relinquishment of a road necessary to the enjoyment of his property, which traverses the track of the company, the latter will donate and dedicate for road purposes a road opened on its right of way, for the benefit of the landowner and the public, and subsequently to the closing of the original road the railroad company is placed in the hands of a receiver by a United States court, and the receiver closes a part of the substituted road in order to furnish track facilities to a patron, an action for the trespass against the receiver is maintainable in virtue of the act of Congress (25 Stat. 436, 4 Fed. Stat. Ann. 387, U. S. Comp. St. 1901, p. 582), without the previous leave of the court in which such receiver was appointed.</p> <p>2. The measure of damages in such a ease is the difference in the market value of the landowner’s property with the substituted way opened and with it closed.</p> <p>3. Evidence to show the market value of the property before and after the contractual way was closed is competent.</p> <p>4. The verdict is supported by the evidence.</p>

<p>1. Where there is conflicting evidence as to the issue in the ease, and one party introduces a written statement made put of court by a witness who has testified on behalf of the other party, not as evidence of the truth of such statement, but for the purpose of impeaching the witness, it will not require a new trial if the court omits to charge that the statement so introduced should be considered by the jury solely for the purpose of impeaching the witness, in the absence of a request for such an instruction.</p> <p>2, Where a written statement made out of court by a witness was admitted in evidence for the purpose of impeaching such witness, and counsel for the party on. whose behalf the witness had testified mistakenly objected to the allowing of such statement to be carried by the jury to' their Toom, when they retired to consider the case, on the ground that such paper had not been introduced in evidence, permitting the paper to be carried out with them by the jury, over such an objection, furnished no ground for a new trial.</p> <p>3. The evidence was conflicting, but was sufficient to support the verdict; and there was no error in overruling the motion for a new trial.</p>

<p>Motion to vacate order. Before Judge Bell. Fulton superior court. August 5, 1912.</p>

Partition. Before Judge Rawlings. Screven superior court. May 20, 1912. Mrs. L. A. Johnson applied for a partition of a tract of land owned in common by herself and others. It was represented to the court that it was impossible to have partition by metes and bounds: and the court ordered a sale of.the land by three commissioners. The commissioners made a report of the sale, and the plaintiffs in error offered to file objections against its confirmation.

<p>Action for damages. Before Judge Meadow. Franklin superior court. January 24, 19T2.-</p>

<p>Partition. Before Judge Littlejohn. Marion superior court. May 14, 1913.</p>

<p>Action for damages. Before Judge Gilbert. Taylor superior court. February 2, 1912.</p>

<p>Equitable petition. Before Judge Conyers. Glynn superior court. May 21, 1912.</p>

<p>Equitable petition. Before Judge Hawkins. Laurens superior court. January 19, 1912.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. June 22, 1212. ,</p>

<p>Complaint. Before Judge Ellis. Fulton superior court. July 6, 1913.</p>

<p>Complaint. Before Judge Ellis. Fulton superior court. July 6, 1912.</p>

<p>Motion to set aside judgment. Before Judge Bell. Fulton superior court. July 30, 1912.</p> <p>Mrs. Georgia Crouch instituted a libel for divorce against her husband, George G. Crouch, and in connection therewith she asked for an allowance of temporary alimony. At the hearing for temporary alimony, on May 20, 1910, the 'court rendered the following decree: “It is hereby ordered and adjudged that the defendant, George G. Crouch, be and he is hereby required to pay to plaintiff’s attorney, R. E. Church, $50 per month as temporary alimony for the support of his wife Mrs. Georgia Crouch, and his miuor daughter Bernice Crouch, until this case is finally disposed of, beginning June 1, 1910; and that said George G. Crouch, defendant, be required to pay R. E. Church, plaintiff’s attorney, $25 "attorney’s fees and [on] account, to be paid* $5 per month, beginning on the 1st day of June, 1910.” On the 26th of May G. G. Crouch filed his motion to modify the decree awarding alimony, alleging that the plaintiff was possessed of considerable property, largely in excess of property owned by him, and ample for her own support, and that he was unable to pay the amount awarded by the court. On June 1st the attorneys for Mr. and Mrs. Crouch entered into an agreement to the effect that her divorce petition should be so amended as to make it a suit for permanent and temporary alimony, and to strike therefrom the prayer for divorce; and that the order for temporary alimony be so modified that the husband should pay Mrs. Crouch “for the support of Bernice Crouch, his daughter, $25 per month for two years beginning June 1, 1910, until June 1, 1912, and $20 from June 1, 1912, until the said Bernice Crouch becomes of age. This agreement for the payment of temporary alimony to be in lieu of any alimony that said party of the second part [Mrs. Crouch] may have right to recover of party of the first part until said Bernice Crouch becomes of age, but not to prejudice any right of party of the second part to sue for a recovery of any alimony which party of the first part should pay after that time, and not to prejudice any right that said second party may now have or hereafter have to sue for and obtain a divorce.” On the day the agreement was executed the order of alimony was modified to conform with it, and on July 13th the petition for divorce was amended by striking therefrom the prayer for total divorce. Subsequently Mrs. Crouch filed her motion to set aside the judgment' modifying her decree for alimony and the striking of the prayer for divorce in her libel, alleging that these judgments were taken pursuant to an agreement made in her behalf by her attorney, who entered into the agreement without her knowledge or consent, and that there existed no reason for the modification of the alimony decree. In his answer the defendant set up that the agreement was made with plaintiff’s attorney in accordance with her express direction, and that she had ratified the same, and had received the several payments provided for in the modified decree with the knowledge that they were made thereunder. He further set up that at the time the original decree for alimony was made he was prevented by a'serious accident from appearing in the court, and that it was entered ex parte; and that the provision for .his wife, for the support of their daughter, was a proper allowance in view of all the circumstances of the case. The ease came on to be tried at the January term, 1912, of the superior court; and a verdict was rendered in favor of the plaintiff. The court refused a new • trial, and the defendant excepted.</p>

<p>Eviction of intruder. Before Judge Hammond. Burke superior court. January 27, 1912.</p>

<p>Injunction. Before Judge Maddox. Floyd superior court. January 14, 1913.</p>

<p>Petition for injunctipn. Before Judge Bell. Fulton superior court. March 11, 1913.</p>

<p>Action for damages. Before Judge Daniel. Fayette superior court. July 17, 1912.</p>

Equitable petition. 'Before Judge Bell. Fulton superior court. May 27, 1912. E. C, Callaway sued out a warrant to dispossess J. M. Beeves as his tenant. Beeves filed a petition alleging as follows: Beeves owned certain city property and a farm tract; both were encumbered with liens. He applied to H. A. Etheridge for a loan to pay off these encumbrances.

<p>Under the facts of this case, the purchaser of the goods, for the price of which the action was brought, did not have the right to return them to the vendor and to receive credit therefor.</p>

<p>Indictment for rape. Before Judge Eite. Whitfield superior court. February 5, 1913.</p>

Equitable petition. Before Judge Littlejohn. Sumter superior court. July 6, 1912. E. D. Bigham instituted an action against C. C. Hawkins, The petition contained allegations of fact relied on to state a cause of action, and concluded with prayers for: (a) rescission of contract; (&) recovery of a money judgment for the amount paid on the purchase-price; (c) process; (d) such other and further equitable relief as the facts and circumstances might authorize.

Probate of will. Before Judge Frank Park. Dougherty superior court. January 25, 1912. A. J. Wells, the nominated executor of the alleged will of Mrs. Evie Brown, applied for the probate of the same in solemn form. A caveat was filed by Mrs. Pearl M. Thompson, who claimed to be the sole heir at law of Mrs. Brown.

<p>Actions upon insurance policies. Before Judge Frank Park. Mitchell superior court. October 9, 1911.</p>

<p>Affidavit of illegality of execution. Before Judge Frank Park. Decatur superior court. July 5, 1912.</p>

<p>Equitable petition. Before Judge Frank Park. Turner superior court. September 9, 1912.</p>

<p>Equitable petition. Before Judge Conyers. Appling superior court. March 21, 1912.</p>

<p>Attachment. Before Judge Ellis. Eulton superior court. May 27, 1912.</p>

<p>Complaint. Before Judge Hammond. Richmond superior court. March 9, 1912.</p>

<p>1. In a suit against a railroad company to recover damages for a personal injury, where there is evidence to show that the plaintiff applied to the agent of the company to purchase a ticket, and the agent sold him a ticket, informing him that the train was about an hour late, and that the plaintiff went to a restaurant for supper and on his return to the depot, while walking upon a public street over which the' public were accustomed to travel in approaching the depot, and as he was passing the tender of the engine attached to the train which he intended to board, he heard some one exclaim “Look out!” and saw the fireman on top of the tender which was loaded with wood for fuel, and just at that time a piece of wood fell from the tender striking the plaintiff on the head, it was not erroneous to instruct the jury, “that a railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives or ears or other machinery of such company, or for damage done by any person in the employment of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.”</p> <p>2. Though some of the instructions were not strictly accurate, yet when taken in connection with the whole charge, they were not prejudicial to the defendant.</p>

<p>1. Where a homestead was set apart to the head of a family, under the constitution of 1877, in land belonging to him, he could not, pending the existence of the homestead, make a valid conveyance of the land, without any order of court; and a deed so made was void, although made to one of the two beneficiaries as trustee for the other.</p> <p>2. Under the pleadings and evidence, it was error to direct so much of the verdict as declared that the land in controversy belonged to the head of the family and his wife, with equal interests. But this can be corrected without reversing the whole judgment.</p> <p>3. If certain evidence was of doubtful admissibility, its admission was notsueh as to injure the plaintiff, who had no title in any event, and the ruling will not require a reversal at her instance.</p>

<p>1. Where a petition for a change of venue was made by one accused of crime, under the provisions of the act approved August 21, 1911 (Acts 1911, p. 74), relating to change of venue íd criminal cases, and after hearing the evidence the judge refused the petition, the judgment is reviewable in the Supreme Court where a bill of exceptions is sued out in pursuance of the provisions of the act referred to.</p> <p>2. Under the evidence submitted for the consideration of the judge below, there was no error in refusing to grant the prisoner’s motion for a change of venue.</p> <p>3. The court did not err in excluding from the evidence a certain letter of a threatening character, purporting to be a “black-hand letter,” addressed, not to the accused,' but to another person, and intimating that violence would be visited upon the addressee of tils' letter in case he furnished money to assist the defendant in making his defense, there being no testimony offered to show the authorship of the letter.</p>

Equitable petition. Before Judge Ellis. Eulton superior court. July 6, 1912. Abbie L. Mason, as administratrix of the estate of A. J. Mason, tiled her petition against the Empire Life Insurance Company, S. E. Jones, and Z. Whitehurst, alleging in substance as follows: On September 6, 1905, the company issued to Mason an annuity policy ifor $3,000, payable in sums of $150 every three months for five years. In 1907 it issued' to him another policy.

<p>Equitable petition. Before Judge Ellis. Eulton superior court. July 6, 1912.</p>

<p>1. The petition was not demurrable.</p> <p>2. Where one ground of negligence is alleged to be the violation of a rule promulgated by the company, and parol evidence is offered to show the existence of such rule as applicable to all employees, it is not error to refuse to exclude such evidence on the ground1 that one of the witnesses, though testifying generally as to the rule, may have said in one part of his testimony that such rule was for the protection of a class of employees to which the plaintiff did not belong.</p> <p>3. The verdict is supported by the evidence, and none of the assignments of error require a new trial.</p>

<p>Complaint for land. Before Judge Daniel. Pike superior court. July 31, 1912.</p>

<p>Complaint. Before Judge Charlton. Chatham superior court. April 4, 1912.</p>

<p>Indictment for murder. Before Judge Thomas. Lowndes superior court. March 8, 1913.</p>

<p>Ejectment. Before Judge Worrill. Early superior court. September 3, 1912.</p>

<p>Equitable petition. Before Judge George. Ben Hill superior court. June 4, 1912.</p>

<p>Divorce. Before Judge Thomas. Brooks superior court. January 20, 1913.</p>

<p>Cancellation of deed. Before Judge Martin. Dodge superior court. March 6, 1912.</p>

<p>1. Where in a suit upon an insurance policy the plaintiff sets forth the name of the insured, the names of the beneficiaries, the amount for which the policy was issued, the facts upon which he relies to show that he was a beneficiary, and alleges also the death of the insured and the maturity of the policy in consequence of that fact, and refers for the full terms and provisions of the policy to that instrument itself, which he alleges to be in the possession of the defendant, such petition will be construed to be a suit involving liability upon a policy of insurance.</p> <p>(а) It should not have been dismissed upon general demurrer, no special demurrer having been filed, upon the ground that a copy of the policy was not attached.</p> <p>(б) Even if there was misjoinder of parties and causes of action, this should have been raised by special demurrer.</p> <p>2. The allegations in the petition not showing that the policy sued on is other than an ordinary insurance policy, it will be treated as such as against a general demurrer.</p> <p>3. Inasmuch as the judgment of the court beiow is reversed upon another assignment of error, it is unnecessary to pass upon the question raised by the, exception to a refusal of the court to give counsel time to prepare an amendment to the declaration.</p>

Action for damages. Before Judge Sheppard. Effingham superior court. February 14, 1912.

<p>Complaint. Before Judge Walker. Wilkes superior court. February 7, 1912.</p>

<p>Complaint. 1, 1912. Before Judge Morris. Fannin superior court. June</p>

Petition for injunction. Before Judge Bell. Fulton superior court. January 1, 1913. E. M. Latham filed an equitable petition for injunction against A. P. Stewart as tax-collector of Fulton county, and Amos Baker as deputy, to enjoin them from collecting a peddler’s license tax claimed to be due under the provisions of part 1, title 2, sec. 2, par. 27, of the general tax act (Acts of 1909, p. 46), as now embodied in the Civil Code, § 946.

<p>Petition for injunction. Before Judge Ellis. Pulton superior court. January 30, 1913.</p>

Certified questions; from Court of Appeals (4158). The City of Atlanta enacted the following ordinance: “An ordinance requiring railway companies, express companies, and all common carriers to report the receipts of any and all spirituous or malt liquors in quantities in excess of three gallons, and to permit the Chief of Police, and his officers acting under his authority, to make an inspection of their books as to the receipts of such liquors, and for other purposes. “Be…

Certified questions; from Court of Appeals (4724). The Court of Appeals certified the following questions: “1.

<p>Complaint for land. Before M. C. Edward's, judge pro hac vice. Quitman superior court. August 24, 1912.</p>

Equitable petition. Before Judge Littlejohn. Maeon superior court. January 24, 1912. The will of J. E. DeVaughn, executed July 11, 1908, was duly proved in solemn form and admitted to record. The portions of the will here material were as follows: “Item 3. I give and bequeath to Mary Porter DeYaughn, Mrs. Mamie Pierce,.

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. July 15, 1912.</p>

Injunction and interpleader. Before Judge Bell. Fult.on superior court. November 1, 1912. W. J. .Davis filed a petition against W. L. & John 0.

<p>Exceptions to auditor’s report. Before Judge Roan. DeKalb superior court. June 22, 1912,</p>

Complaint. Before Judge Fite. Dade superior court. February 5, 1912. The action was by an 'administrator against the highest bidder at an administrator’s sale of land, to recover the amount of the bid.

<p>Action for damages. Before Judge Hammond. Walton superior court. February 21, 1912.</p>

<p>1. “It is not necessary for the judge, in charging a jury in a criminal case, to make introductory remarks as to the importance of the case both to the State and the accused; but it is not error requiring a new trial for him to do so, provided what is said is not a misstatement of the law or calculated to prejudice the minds of the jurors against the accused.”</p> <p>2. The female alleged to have been raped testified to the fact, and her testimony was corroborated by that of other witnesses. The failure of the court to instruct the jury that no conviction could be had unless the victim’s testimony was corroborated by that of other witnesses was not error.</p>

<p>Indictment for murder. Before Judge- Graham. Bleckley superior court. April 5, 1913.</p>

<p>1. There was testimony that the deceased was in articulo mortis and conscious of his condition at the time he made the statement received in evidence as a dying declaration, and the court properly instructed the jury with reference thereto.</p> <p>2. Such instruction was not erroneous because of an omission to charge, in the absence of a written request, that evidence of a dying declaration' should be received by the jury with great caution.</p> <p>3. The charge on the subject of malice was not open to the criticism that it was inappropriate because no unlawful homicide was proved.</p> <p>4. The charge on the subject of justifiable homicide was not open to the criticism that it narrowed the law of self-defense.</p> <p>5. In an instruction relating to the impeachment of witnesses it is proper to omit reference to a form of impeachment concerning which there is no evidence.</p> <p>6. The evidence did not authorize an instruction upon the defense of one’s habitation, as contained in the Penal Code, § 72.</p> <p>7. The evidence did not authorize a charge on voluntary manslaughter.</p> <p>8. The verdict is supported by the evidence.</p>

<p>1. A woman was indicted for the murder of her husband. The evidence showed that she admitted the killing, but asserted that it was the result of an accident while she and her husband were scuffling over a gun. Other evidence showed that she had gone to a house near by and borrowed gun-shells on the statement that her husband desired to shoot some wild chickens, but that she had carried a gun with her and left it on the side of the road before reaching the house to which she was going. There were bloodstains on the bed in the house of the couple, and a pillow was found under another bed, with a hole shot in it, and with bloody pieces of flesh and teeth forced into it. The deceased was shot in the face with a gun, the shot tearing away part of his mouth and teeth. The defendant ran away and was captured about two years thereafter. There was evidence tending to show that she and her husband had had some fusses before the homicide. Held, that the evidence authorized a charge to the effect that where a homicide is shown to have been committed by the accused, the law presumes that it was malicious, until the contrary appears, unless the evidence adduced by the State shows justification, or mitigation, or excuse; and that if it does not do so, it devolves on the defendant to show such justification, mitigation, or excuse.</p> <p>2. The evidence was sufficient to support the verdict, and there was no error in overruling the motion for a' new trial.</p>

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

Petition for injunction. Before Judge Conyers. Glynn superior court. June 24, 1911. On June 20, 1909, the clerk of the Mayor and Council of the City of Brunswick issued an execution against J. B. Wright and his 124/130 interest in the steamboat “Hessie No. 2,” for taxes claimed to be due the city on his interest in the vessel for the year 1905.

Intervention. Before Judge Charlton. Chatham superior court. May 4, 1912. George H. Penton agreed to sell to Leo G. Hall, Robert C. Hall, and Charles H. Richardson a tract of land used as a dairy farm, and the personal property situated upon it, consisting of 25 cows, one horse, a wagon and harness, a buggy and harness, and certain described cans, buckets, barrels, etc., for the sum of $6,000.

<p>1. Where one died leaving a wife and children in possession of certain land to which he had title, and subsequently the grantee in a deed executed by the husband before his death, and purporting to convey title to such grantee, evicted the widow, and after such eviction she filed a petition to have this deed canceled on the ground that it was not an absolute conveyance of property but merely a security deed or a mortgage to secure a debt, asserting in the petition that the grantee in the deed held the lands “in trust for the grantor,” and a verdict was rendered in favor of the widow, finding that she be restored to possession, and that the deed be canceled, such verdict, construed, as it must be, in the light of the pleadings and undisputed facts and the decree upon the same (which is not broader than the verdict), has the effect merely of annulling the deed and restoring the widow to such possession as she had before her eviction; and the verdict does not have the effect, nor does it purport to have the effect, of declaring or vesting title in the widow.</p> <p>2. An exception to a charge on the ground that “it ignored the defendant’s contention that defendant claimed the land in controversy under a gift by her father, who had a valid title thereto,” is without merit where from the undisputed evidence it appears that the defendant’s father never had title.</p> <p>3. Inasmuch as the evidence for the plaintiff showed title in his intestate, as alleged in the petition, and the defendant relied upon her assertion that she had acquired a good prescriptive title, the court did not err in so charging the jury as to place upon the defendant the burden of establishing, by a preponderance of evidence, the prescriptive title asserted.</p> <p>4. A verdict and decree which, properly construed, did not purport to find title in a party or to vest such party with the title, did not amount to color of title.</p> <p>5. Under the evidence the defendant who set up prescriptive title by virtue of seven years’ possession under color of title was not entitled to a charge on the subject of the effect of possession under color of title, and was not injured by the charge upon that subject, even though the same was not strictly accurate.</p> <p>6. The court did not err in instructing the jury in substance that the defendant could not prevail upon the theory that she had title derived from her father, when in a former suit she had caused it to be judicially ascertained and declared that the father’s title, based upon an invalid conveyance frbm her husband, was void.</p> <p>7. “There can be no adverse possession against a cotenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession.” Civil Code, § 3725. And the substitution of the expression, “actual notice” for “express notice,” in charging this section to the jury, was not error.</p> <p>8. The court properly refused to give a charge not authorized by the evidence.</p> <p>9. Upon examination of the evidence objected to as irrelevant, it is apparent that, even if it was irrelevant, it could not have the effect of harming or prejudicing the defendant’s case before the jury; and consequently its admission is no ground for a new trial.</p> <p>10. Where, during the argument of the ease by the plaintiff's attorney, the defendant’s counsel interposed the objection that the argument then being advanced was improper, and asked the court to disallow the same, and the court ruled upon the question in the following language: “If there is any legitimate evidence on which to base that as a legitimate conclusion, I will let that go in; whatever is in and not ruled out can be argued,” a general exception assigning this ruling as error is without merit, in the absence of an allegation or showing, in the ground of the motion itself, that the argument was not authorized by any evidence in the record.</p>

<p>1. On the issue formed by a protest to the return of proeessioners, the burden is on the applicant to make a pilma facie case.</p> <p>2. The statute provides that land proeessioners, in the location of the line between coterminous landowners, shall follow certain rules; one of which is that acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line; and another is that actual possession under a claim of right for more than seven years shall be respected and the lines so marked as not to interfere with such possession. An instruction applying these rules was not cause for new trial because the .court referred to the time of acquiescence and actual possession as “a term of years as the law prescribes” and “a number of years,” where in immediate connection therewith he also instructed the jury in the language of the Civil Code, §§ 3821, 3822, that such acquiescence or- actual possession must exist for seven years. The evidence authorized the charge complained of.</p> <p>3. The issue formed by a protest is not of title,'but of boundary; and though the charge of the court on adverse possession for twenty years as giving a prescriptive title may have been inapplicable, it was not injurious to the losing party.</p> <p>4. Civil Code § 3819, which declares that when the surveyor’s plat shall be certified as required, in all future disputes arising in reference to the boundary lines of the tract surveyed such plat shall be considered prima facie correct, is inapplicable to the issue before the court formed by a protest to the processioners’ return. But the giving of this section in charge was not prejudicial to the losing party, because in the trial of an issue formed by a protest the return of the processioners is to be deemed prima facie correct.</p> <p>5. As it was not sought to impeach any witness by evidence introduced for that purpose, it was not error to instruct the jury: “The law presumes all witnesses are honest and tell the truth, until the contrary appears by proof.”</p> <p>6. Other assignments of error are without merit, and the evidence supports the verdict.</p>

<p>Injunction, etc. Before Judge Hawkins. Laurens' superior court. October 12, 1912.</p>

<p>Illegality of execution. Before Judge Daniel. Butts superior court. February 23, 1912.</p>

<p>Injunction and' interpleader. Before Judge Ellis. Fulton superior court. January 31, 1913.</p>

<p>Under the facts of this case there was no error in granting a nonsuit.</p>

<p>Equitable petition, etc. Before Judge Thomas. Tift superior court. December 16, 1911.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. February 3, 1912.</p>

<p>1. In an action for damages instituted in this State by a passenger against a common carrier, on account of personal injuries caused by the negligence of the defendant’s servants, where the injury occurred in the State of Alabama, the liability of the defendant will depend upon the laws of the latter State; and where no particular law of Alabama is pleaded or proved, the presumption is that the common law prevails there, and the case will be considered as governed by the common law.</p> <p>2. The motion for nonsuit was properly overruled.</p> <p>3. The judge charged the common-law doctrine which prevents a plaintiff from recovering if by the exercise of ordinary care he could have avoided the consequences to himself caused by the defendant’s negligence; and the assignment of error which complained of his failure so to do was without merit.</p> <p>4. The judge in effect also charged the common-law doctrine that the plaintiff can not recover damages for an injury to himself where the same is done by his consent or is caused by his own negligence. If further instructions in this regard had been desired, there should have been an appropriate request.</p> <p>(a) So much of the Civil Code, § 2781, as relates to comparative negligence and diminution of damages is not a common-law doctrine, and it was not erroneous to omit reference to it in the charge.</p> <p>5. Other exceptions to the charge afford no ground for a new trial.</p> <p>6. The evidence authorized a finding for the plaintiff, and the verdict was not excessive.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. March 20, 1912.</p>

Equitable petition. Before Judge Pendleton. Eulton superior court. April 37, 1913. On January 9, 1913, the plaintiff filed her petition against C. W. Mangum, sheriff of Fulton county, and George W. Adair, alleging as follows: Mangum, sheriff, exposed for sale, on January 4, 1910, a certain house and lot on West Peachtree street in the City of Atlanta, under a certain fi. fa. George W. Adair bid $48,000 for the property, and petitioner bid $50,000.

<p>1. The rulings of the court on the admissibility of evidence do not afford ground for reversal of the judgment.</p> <p>2. Where a consignor of goods delivers them to a common carrier to he transported to a distant point, consigned to the order of the shipper, with direction to notify a designated person at the place of delivery, and a bill of lading is duly issued by the carrier to the consignor, and the latter attaches the bill of lading to his draft for the price of the goods on the person to be notified, and delivers it with the bill of lading, which is indorsed in blank, to his bank to be placed to his credit on his general account, and the amount of the deposit is, credited to the depositor’s general account and drawn against by him, the bank acquires title to the goods represented by the bill of lading, which can he asserted against the lien of a subsequent attachment creditor of the consignor.</p> <p>(a) On the trial of a claim case between the bank and a judgment creditor of the consignor, where the undisputed evidence shows that the bank, in the manner indicated in the preceding note, acquired title from the consignor before the levy of the attachment, the fact that after the bank had acquired title the consignor wrote letters seeking to induce the person to be notified to accept and pay for the goods, and others seeking to make disposition of the goods, would not affect the title of the hank, which had not received reimbursement to cover the advancement made to the consignor.</p> <p>(5) The evidence demanded a verdict for the claimant.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. June 6, 1912.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. July 27, 1912.</p>

<p>1. The verdict is supported by the evidence.</p> <p>2. Where the widow of one who was employed by a railroad company as a flagman to perform service within its switching yards brought suit to recover damages for his alleged tortious homicide by the running of one of the defendant’s cars, evidence of the general custom as to the manner of flagging trains at the point where the injury occurred, and of' instructions to such flagman as to such custom, was admissible as tending to show that the deceased knew of the custom and the danger to which he was exposed while on duty as a flagman, and whether he exercised that care which an ordinarily prudent man in these circumstances would have exercised for his safety.</p> <p>3. It is not error for a trial judge, before beginning his instructions to the jury, to tell them of the obligation resting upon the court and upon the jurors in the trial of a case, and to call their attention to the necessity of giving close attention to the law as given them by the court, and to return “a true verdict according to the opinion they entertain of the evidence produced to them, without favor or affection to either party, and according fo the law as given in charge by the court.”</p> <p>4. It was not error for the court in charging the jury to read to them the original petition and the amended petition, where the amendment worked a dismissal of the case as to one of the defendants, and the original petition was amended in several other material parts, and where there was no offer on the part of plaintiff’s attorneys to remodel the papers, and where the court instructed the jury that the part of the original petition and the amendments that had been stricken were not a part of the plaintiff’s statement of the ease in writing, and that the pleadings would go out with the jury, and explained to them how the amendments were related to the original petition.</p> <p>5. In view of the evidence as to the character and surroundings of the locality where the injury occurred, it was not improper for the court to submit to the jury the question of whether a municipal ordinance regulating the speed of trains within the city limits was applicable at that particular locality.</p> <p>6. None of the charges complained of embody any error requiring a new trial.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. April 26, 1912.</p>

<p>1. The Civil Code, § 2471, provides that all life and fire-insurance policies issued upon the life and property of persons within this State, referring to the application for insurance, or the constitution, by-laws, or other rules of the company, shall contain or have attached a copy of the same in order to authorize the introduction thereof in evidence as part of the policy or as an independent contract. The Civil Code, § 2869, provides that fraternal beneficiary orders or associations shall be governed by the provisions of the code relating to such orders or associations, and shall be exempt from the provisions of the insurance laws of this State. The former section (2471) declares what shall constitute the policy of insurance, and is a distinct provision of the law of life and fire insurance, and the latter section has the effect to take from its operation benefit certificates issued by fraternal beneficiary orders or associations as defined in the Civil Code, § 2866. It follows that, where a benefit certificate of a fraternal association refers to the application, constitution, and by-laws of the association as being a part of the contract, in an action on such benefit certificate the application, constitution, and laws of the association are receivable in evidence as part of the contract of insurance.</p> <p>2. Under an issue of fraud in the procurement of a benefit certificate from a fraternal beneficiary association, where the fraud is alleged to consist in the applicant’s false statements, wilfully and intentionally made in the application, inducing the issuance of the certificate, the application is admissible in evidence independently of Civil Code § 2869, not as forming a part of the contract, but as tending to show its fraudulent procurement.</p>

Equitable petition. Before Judge Rawlings. Bulloeb superior court. March 16, 1912. J. C. Deal and Webb Donaldson brought their petition against W. S. Finch, W. W. Parish, justice of the peace, and M. M. Pennington, constable, for injunction and other relief.

<p>1. An oral promise to a charitable corporation to give a specific sum of money for the construction of a building, to be devoted to carrying out the design of such corporation, as soon as the work begins, is not a subscription to shares of stock of a commercial corporation, and is not within the clause of the statute of frauds which requires contracts for the sale of goods, wares, and merchandise to the amount of fifty dollars or more to be in writing.</p> <p>2. Where the time when the contract is to be performed depends on some contingency, it is within the statute of frauds, provided the contingency can not happen within the year; but if it may happen, it is not within the statute.</p> <p>3. As a general rule a promise to donate money to a charitable purpose is gratuitous and unenforceable unless some consideration therefor exists. But a consideration- of a promise to donate money to a charitable corporation is supplied where the corporation, during the life of the promisor, and before a withdrawal of the promise, and in reliance on his promise, as well as that of others, expends money and incurs enforceable liabilities in furtherance of the enterprise the donors intended to promote. The original gratuitous promise will thus be converted into a valid and enforceable contract.</p> <p>(a) Civil Code § 4246 considered in connection with foregoing ruling as being limited to cases of mutual written subscriptions.</p> <p>4. The publication in a newspaper, owned and controlled by a corporation, of which the promisor was president and principal stockholder, and with his knowledge, and without repudiation by him, of a list of subscriptions to a charitable corporation, embracing his own, is relevant as tending to show an admission of the promisor to donate the particular sum to the charitable enterprise.</p>

<p>1. If two clauses of an item of a will are so inconsistent that both can not stand, the latter will prevail; but the whole item is to be taken together, and operation is to be .given to every part of it, if this can be done without violating its terms or the intention of the testator. Such intention is to be sought by considering the item as a whole, rather than detached parts of it separately.</p> <p>2. A testatrix devised and bequeathed her entire estate, after the payment of her debts, to her executors as trustees upon the following uses and trusts: “(a) To provide for my faithful friend and companion, the nurse of my son [naming him] to wit [naming her], while unmarried, such modest support as she has had while living with me; provided, however, that no more than one half of the income of my estate shall be devoted to this purpose. (6) To pay over to my son [naming him] during his natural life the balance of the net income from my estate, after providing therefrom for the support of said [nurse named], (c) From and after the death of my said son, leaving him surviving a child or children, or the child or children of a deceased child, to pay his share of the net income of my estate for the maintenance and support of such child or children, or child or children of a deceased child, during the life of said [nurse], and at and after her death then in tr.ust to convey said property to said surviving child or children of my said son [naming him], the child or children of a deceased child to stand in the place of their parent, and to take per stirpes and not per capita. (d) In the event of the death of my said son [naming him] without issue him surviving, then and in that event to pay the entire income from my estate to said [nurse named] during her lifetime, and from and after her death then in trust to convey my entire estate to” a certain lodge of the order of Odd Fellows, to be held, managed, and controlled by the trustees for the time being of such lodge, and the income to be applied to the support and relief of the needy widows and orphans of members of such lodge. The woman named as the faithful friend, companion, and nurse married, and her husband subsequently died. The son of the testatrix died without leaving issue. Held, that upon the marriage of the friend and nurse her interest in the estate terminated, and was not revived by the subsequent death of her husband; and upon the death thereafter of the son of the testatrix, without leaving descendants him surviving, the lodge of Odd Fellows became the sole legatee, for the purpose of carrying into effect the trust created for the widows and orphans of its members.</p>

<p>Attachment. Before Judge Bawlings. Tattnall superior court. December 27, 1911.</p>

<p>1. Where title was conveyed by an individual to trustees of the Baptist Institute of the Baptist Union Association, which had been incorporated (whether by consent of the Union Association or not), and such trustees, with the consent of the Union Association, conveyed the property to the deacons of a certain Baptist Church, referring in the deed to a resolution of the Association which made certain provisions as to the conducting of the school on the property by the grantees, and declared that in case of a willful violation thereof “the deed should be nulled and void, and the property revert back to the association,” if this reference constituted the resolution a part of the deed and created a condition subsequent, upon a breach thereof'the title would revert to the trustees of the institute, and would not pass to the unincorporated Baptist Union or its individual members.</p> <p>(а) The plaintiffs were not shown to be trustees of the institute; but it was alleged that they were the executive committee of another named Baptist Association, and were, trustees of each of the two associations, appointed for the purpose, of bringing this suit and recovering and holding the property in trust for the members of such associations.</p> <p>(б) The other association did not appear from the petition to have any interest in the transaction.</p> <p>2. If the Union Association should be considered as principals and the trustees of the institute as agents, the resolution passed- by the former, fairly construed, authorized a conveyance of the school property, and not merely of the house, with no land.</p> <p>(a) A principal can not receive and hold the proceeds of a sale by his agent and at the same time attack the authority of the agent to sell.</p>

Action for damages. Before Judge Felton. Bibb superior court. March 11, 1912. The plaintiff is seeking to recover from the defendant the amount of a judgment rendered against the plaintiff, which it was compelled to pay, in favor of the widow of E. 0. Minor, in a suit brought by her for the homicide of her «said husband; it being now alleged that the proximate cause of Minor’s death was the negligence of the defendant in the present case.

Partition. Before Judge Brand. Banks superior court. January 26, 1912. One of the heirs at law of E. G. Crump, deceased, made application for partition of a tract of land in Banks county.

<p>Injunction. Before Judge Frank Park. Decatur superior court. May 22, 1913.</p>

Injunction. Before Judge Frank Park. Decatur superior court. May 12, 1913. On May 11, 1911, J. R. G-holson executed to C. Cunningham an instrument which expressed a consideration of $1.00.

<p>Injunction. Before Judge Graham. Bleckley superior court. April 29,1913.</p>

Petition for injunction. Before Judge Hammond. Richmond superior court. April 5, 1913.' On August 21, 1906, Benjamin A. Chew and others brought an action to recover land against H. L. Chichester Jr., and “W. M. Wadley, executor of Wm. 0. Wadley, deceased,” in the superior court of Jenkins county.

<p>Temporary alimony; from Fulton. Motion to dismiss.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. February 2, 1912.</p>

Action for damages. Before Judge Bell. Fulton superior court. January 10, 1912. The assignment of error relied on for a reversal is upon the judgment refusing a nonsuit. The plaintiff was an employee, and the defendant was his employer. The action was for damages on account of injuries alleged to have been received through the negligence of the servants of the defendant in operating its trains.

Equitable petition. Before Judge Bell. Eulton superior court. February 19, 1912. Alexander Ratteree was the owner of land lot 134 in the 14th district of Fulton county. Mrs. R. M. McWhirter, alleging that she was the owner of a lot which had been carved out of land lot 134, brought suit against J. J. Knott, alleging that he owned a lot of 8 acres carved out of land lot 134, and lying north of the plaintiff’s lot.

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

<p>Fulton superioiAction for damages. Before Judge Pendleton, court. May 9, 1912.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. June 8, 1913.</p>

<p>Action upon insurance policy. Before Judge Bell. Fulton superior court. August 8, 1912.</p>

<p>Complaint. Before Judge Hammond. Richmond superior court. July 20, 1912.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. May 6, 1912.</p>

<p>Garnishment. Before Judge Brand. Gwinnett superior court. January 30, 1912.</p>

<p>Under the law of processioning as it exists in this State, established lines and not new ones are to be fixed and determined; the location of lines, not as they ought to be, but as they actually exist, is to be sought. And it appearing in the present case that in running the line between the parties the processioners and the surveyor “ignored the claims of both sides” as to the actual location of the line between them and their respective contentions as to actual occupation, and sought alone for the discovery of the true original line by courses and directions and certain corners on what they considered the true original line, the line traced and marked by them in this way was not run according to the law governing processioners in the discharge of their duty, and should not have been established as the true line by verdict rendered on the trial of the issue made by a protest to the return of the processioners.</p>

<p>Temporary alimony. Before Judge Brand. Jackson superior court. April 24, 1912.</p>

<p>There was no evidence to support the verdict, and it is set aside upon that ground.</p>

<p>Complaint; from Cobb superior court. Motion to dismiss</p>

<p>1. Where an action was brought in this State by a woman for a personal injury alleged to have been caused by the negligence of a railway company in Alabama, which action was removed to the circuit court of the United States, and after her death her administrator was made a party thereto; and where after the death of .the original plaintiff her administrator instituted an action in the State court to recover damages on account of her death caused hy the same injury, under the Civil Code of Alabama (1907, § 2486) , the pendency of the former action did not furnish ground for abatement of the latter.</p> <p>(a) The injury having occurred in Alabama, and the suits having been brought in Georgia (it not appearing where the death took place), and the statute of Alabama haying been pleaded as a basis for recovery, the question of the effect of the one action upon the other is to be determined according to the law of that State.</p> <p>2. The demurrer was without merit, and there was no error in overruling it.</p>

<p>The statute provides that except in cases where the defendant in a justice court fi. fa. points out for levy land in his possession, a constable is without authority to levy such fi fa. on land, unless there is no personal property to be found sufficient to satisfy the debt. Where a constable makes an entry on a justice court fi. fa. of “Due search made and no personal property found on which to levy this fi. fa.,” it is no traverse of his return to simply allege that no search was made. In order to make an issue it must be averred in the traverse that the defendant did have personal property on which to levy the fi. fa.</p>

<p>Quo warranto. Before Judge Graham. Telfair superior court. March 8, 1913.</p>

<p>Temporary alimony. Before Judge Charlton. Chatham superior court. April 3, 1913.</p>

Equitable petition. Before Judge Daniel. Butts superior court. January 20, 1912. Mrs. Belle Hoard brought her action against J. W. Holloway and Ed Cole, to recover possession of certain land described in the petition, and for specific performance.

<p>Complaint. Before Judge Hawkins. Johnson superior court. May 3, 1912. (See 138 Ga. 403, 75 S. E. 319.)</p>

<p>Indictment for murder. Before Judge Hawkins. Laurens superior court. April 19, 1913.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. July 29, 1912.</p>

<p>Interpleader. Before Judge Littlejohn. Sumter superior court. July -17,. 1912.</p> <p>The - Locomotive Engineers Mutual Life & Accident Insurance Association, hereafter referred to as' the Association, brought its petition against Mrs. Johnnie Meldrim and Mrs. Mollie J. D. Meldrim, praying that the two named defendants be required to inter-plead, etc. It alleged as follows: The Association issued upon the life of one Robert Lee Meldrim two insurance policies, aggregating the face value of $3,000. In each of said policies Mrs. Mollie Meldrim was named as the beneficiary to whom the insurance was to be paid upon the death of Robert Lee Meldrim. He died on the 5th day of August, 1910, and proof of his death was duly made. Mrs. Mollie Meldrim was the lawful wife of Robert Lee Meldrim at the time of the issuance of the policies, and, so far as the policies themselves indicate, is still the beneficiary named in them. She has brought suit upon the policies against the Association, to recover the amount of the insurance. The Association has been advised, that, subsequently to the issuance of the insurance policies and prior to the death of Robert Lee Meldrim, he claimed to have procured a divorce from Mrs. Mollie Meldrim, and that afterward he intermarried with, Johnnie E. Joiner, and at the time of his death was living with her as his wife. She also has brought suit upon the policies, seeking to recover the amount of insurance, alleging that she is temporary administratrix upon the estate of Robert Lee Meldrim, and claiming that as temporary administratrix and as the wife of Robert Lee Meldrim she is entitled to recover said insurance. The Association has been advised that Mrs. Mollie Meldrim, prior to the death of Robert Lee- Meldrim, executed a contract in connection with an alimony suit, whereby said policies of insurance became assigned to said Robert Lee Meldrim or to such beneficiary as he might thereafter name, and that a decree was rendered in the alimony suit, by virtue of which, it is contended, Mrs. Mollie Meldrim was divested of. all interest in said policies as the beneficiary thereof; but the Association is advised that on that particular point said decree is ambiguous, and that the claims of the two defendants are such as to render it doubtful' or dangerous to the Association to pay the insurance to either until their claims can be determined under proper pleadings. The Association has no interest in the controversy, further than to protect itself as a mere stakeholder desiring to ascertain to whom the amount of the insurance should be paid.</p> <p>An. order was passed, requiring the named defendants to inter-plead, and they were enjoined from further prosecuting their individual suits against the Association. Mrs. Mollie Meldrim pleaded, that the “entire estate of Eobert Lee Meldrim consists solely of the insurance funds now in the hands of the court, as beneficiary, if they do not belong to Mollie J. D. Meldrim;” that the estate of Eobert Meldrim is indebted to Mrs. Mollie Meldrim, as alimony under the decree of the court, in the sum of $30 per month from August 1, 1910, down to this time, and she will continue to be entitled to receive from said estate the sum of $30 per month so long as she lives and remains single; that Mrs. Johnnie Meldrim is not entitled to receive said insurance individually of as heir at law of Eobert Lee Meldrim; that the policies are due and payable to Mrs. Mollie Meldrim as the beneficiary named in them; that Eobert Meldrim “understood, and in his lifetime acted on his understanding, that the rights of Mrs. Mollie Meldrim to said policies did not expire until December 24, 1910, and so stated to witnesses;” and “that the contract and decree for alimony have not been complied with by Eobert Lee Meldrim, and hence said representative of said Eobert Lee Meldrim has no right to the proceeds of said insurance.” The last two. allegations just quoted were stricken on demurrer, and exception to .this ruling was taken pendente lite. There was no assignment of error upon this, in the main bill of exceptions or upon the hearing in the Supreme Court; and the same is true of another exception pendente lite found in the record.-</p> <p>Mrs. J ohnnie Meldrim pleaded as follows: She was the lawful wife of Eobert Meldrim. at the time of his death, and Mrs. Mollie Meldrim ceased to be the beneficiary in the policies on the 4th day of June, 1910. Eobert Lee Meldrim, before his last marriage, procured a divorce from Mrs. Mollie Meldrim; and at the time of his death Mrs. J ohnnie Meldrim was living with him as his wife. On April 4, 1906, Mrs. Mollie Meldrim. and Eobert Meldrim executed a contract in view of a certain alimony suit then pending, whereby said policies of insurance, prior to the death of Robert Meldrim, “became assigned to him or such beneficiary as he might name.” By reason of this contract an order of court was passed under date of April 14, 1906, embodying in part the terms of said contract; and on December 17, 1906, a verdict and judgment purporting to be upon consent were rendered in Sumter superior court, said verdict and said judgment having been prepared by the attorneys of record of Mrs. Mollie Meldrim; but through inadvertence the word “October” was erroneously and mistakenly written by the draftsman of said verdict instead of the word “April,” in fixing the time when, by the terms of the contract of April 4, 1906, and the decree of April 14, 1906, the assignment of all interest of Mrs. Mollie Meldrim in the insurance policies to Robert Lee Meldrim should become effective. Said contract was executed April 4, 1906, and by the terms thereof all the right or interest of Mrs. Mollie Meldrim terminated at the expiration of fifty months from that date. Copies of the contract and of the verdict and decree are attached to the pleadings.</p> <p>Upon the trial the jury by their verdict found the facts to be as follows: “That R. L. Meldrim and*Mrs. Mollie J. D. Meldrim married on the 9th day of January, 1889, and that a legal and valid divorce was granted between the parties, Robt. Lee Meldrim and Mollie J. D. Meldrim, releasing one from the other, and from all marital obligations one toward the other, and absolutely dissolving the marital tie between them, on April 26, 1906; that Robt. Lee Meldrim and Johnnie E. Meldrim, née Joiner, were lawfully married on the 10th day of Nov., 1906, and that Johnnie E. Meldrim remained the lawful wife of Roht. Lee Meldrim until his death on Aug. 5, 1910; that Johnnie E. Meldrim is now the widow of Robt. Lee Meldrim, deceased; that Johnnie E. Meldrim is the duly appointed and qualified temporary administratrix of Robt. Lee Meldrim, deceased, said Robt. Lee Meldrim having departed this life on Aug. 5, 1910; that Johnnie E. Meldrim, as temporary administratrix of the estate of Robt. Lee Meldrim, deceased, is entitled to receive the entire fund, the proceeds of two insurance policies issued by the Locomotive Engineers Mutual Life & Accident Insurance Association on the life of. Robt. Lee Meldrim, amounting to the sum of $3,000, with lawful interest thereon, and that, as the lawful -wife of Robt. Lee Meldrim and only heir at law of said deceased, she is entitled to receive said fund subject, however, to any claim of any creditor of the estate of Eobt. Lee Meldrim, deceased, which may be of legal priority to her claim as wife and heir at law.”</p> <p>Mrs. Mollie Meldrim filed a motion for U new trial, which was overruled, and she excepted.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. June 25, 1912.</p>

<p>Action for damages. Before Judge Conyers. Glynn superior court. May 20, 1912.</p>

Action for breach of contract. Before Judge Bell. Fulton superior court. April 26, 1912.. The suit was to recover $601.75, which it was alleged the plaintiff had lost in consequence of the refusal of the defendant to take a shipment of 120 sacks of walnuts valued at $1,695.04.

<p>1. Where creditors seek hy equitable petition to cancel a deed made by a husband to his wife, it is necessary to make the grantor a party defendant. If he be dead, his legal representative must be made a party, or a sufficient reason must be alleged and proved to excuse such failure.</p> <p>(a) In the present case certain persons, alleging themselves to be creditors and holders of a security deed from a husband, attacked a conveyance made by the husband to his wife. They alleged that there was no administration on the estate of the husband, and that no application for administration was pending. The plaintiffs made parties defendant to the action the wife and two of the children of the • decedent, who were alleged to be adults, averring that he left “several children among whom” were those named. A demurrer was interposed on the ground that the administrator of the decedent should be made a party, and the answer denied that there was no administration, and named the administrator who had been appointed. The record does ■ not show that he was ever made a party, nor was any proof adduced to show that in fact there was no administration.» Held, that a decree of cancellation could not be rendered under such circumstances, for want of proper parties defendant.</p> <p>2. Under the ruling in First National Bank of Oartersmlle v. Bayless, 96 Ga. 684 (23 S. E. 851), a gift by a debtor insolvent at the time is void as to his then existing creditors, whether made for the purpose of defrauding them or not; but such a gift is not void as against a subsequent creditor, unless at the time of making it there was an intention on the part of the debtor to defraud such creditor.</p> <p>(a) It is not held that an intention to defraud subsequent creditors as a class might not be sufficient relatively to one of them, although the intention to defraud was not directed against him specially.</p> <p>(b) Under the ruling in the above-cited case, although money-may have been obtained from a subsequent creditor for the purpose of paying off debts existing when the gift was made, this alone would not make the gift void as to such creditor, if the conduct of the debtor throughout the entire transaction was honest, and he had no intention to defraud.</p> <p><e) An intent to defraud may be inferred from circumstances.</p> <p>3. If an insolvent husband makes a voluntary conveyance of his property to his wife, with an intention to borrow money and pay off his existing indebtedness, knowing that he is in embarrassed or failing circumstances and probably will not be able to repay the money thus borrowed, and intending by this scheme to save the property for his wife, such a conveyance is fraudulent, and the creditors lending the money with which the former indebtedness is discharged can attack it on that ground, as prior creditors could have done.</p> <p>4. If a debtor transfers his property to his wife, whether voluntarily or for value, and thereafter procures another to lend him money with which to pay off the existing indebtedness, representing the property to be his, and thus fraudulently obtains money on the faith of the security furnished by the property, and gives a security deed to the lender, who lends the money without knowledge or notice of the conveyance to .the wife; and if the wife actively participates in such fraud or knowingly permits her husband to hold himself out as the owner of the property to obtain such credit, the deed to her will yield to that of the creditor; and if it affects the security of the creditor, it can be canceled as fraudulent.</p> <p>(a) The fact that a deed is recorded, even though it may be a deed for value, does not necessarily prevent one from whom the grantor procures money by representing the property to be his, from having an equitable remedy against the grantor and grantee, if the latter actively participates in the fraud, or knowingly permits the grantor to hold himself out as the owner of the property and thus procure credit on the faith of it.</p> <p>5.. The rule as to the effect of recording a voluntary deed upon the rights of a subsequent purchaser for value and without notice, or of one occupying the legal status of a purchaser for value, is sufficiently stated in Martim v. White, 115 Ga. 866 (42-S. E. 279).</p>

<p>1. Under the evidence the court did not err in holding that the name of the defendants’ order was “substantially similar” to the name of the plaintiffs’ order, and a “colorable imitation” thereof.</p> <p>2. There being evidence authorizing the court to find that the plaintiffs’ order first existed in this State and had been incorporated under the laws of this State prior to the date upon which the defendants’ order sought to organize and become incorporated, and that (so far as the record disclosed) there was no other order of a similar name having an existence and incorporation prior to that of the plaintiffs, in this Btate, it was not error to grant the injunction, under the provisions of the act of 1909, embodied in the Civil Code, § 1994.</p> <p>3. Whether the act of 1909 at the time of its passage was violative of the constitution of the State of Georgia (art. 3, sec. 7, par. 8), which declares that “No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof,” the defect was remedied by the subsequent adoption of the Code of the State, containing all the provisions of the act referred to.</p> <p>4. The act in question is not violative of those parts of the constitution of the United States contained in the 14th amendment, which prohibit any State from making or enforcing any law which abridges the privileges or immunities of citizens of the United States, or which has the effect of denying to any person within the jurisdiction the equal protection of the laws.</p>

<p>Mortgage foreclosure. Before Judge Walker. Warren superior court. April 25, 1912.</p>

Complaint for land. Before Judge Meadow. Franklin superior court. August 27, 1912.

<p>1. Where a municipality seeks to condemn an easement for the construction of a sewer, and desires to appeal from the assessors’ award, under the Civil Code, § 5228, the appeal is duly entered upon the city’s filing with the clerk of the superior court, within the statutory time, a bond for the eventual condemnation-money, containing a recital of the proceedings anct’-fhe result thereof, and of a desire to appeal from the award to the superior court.</p> <p>\a) Such a bond may he executed and the appeal entered by the attorney at law of the city.</p> <p>(6) Corporate municipal action is not necessary to authorize the appeal.</p> <p>2. That a judgment does not follow, or is not authorized by, the verdict upon which it is entered is not a good ground of a motion for a new trial.</p> <p>3. Where it is sought to condemn an easement of sewer on private property for public use, the landowner is entitled to recover damages for the property actually taken, and, in addition thereto, such damages to the remainder of the lot as flow from the construction of the sewer. The excerpts from the charge to which exception is taken, when considered in their relation to the whole charge, did not encroach upon or narrow this legal principle.</p> <p>4. Other grounds of the motion are without merit.</p>

Exceptions to auditor’s report. Before Judge Worrill. Early superior court. May 21, 1912. On January 27, IDO1?1, A. J. Singletary filed bis equitable petition against El S. Grimsley, H. H. Grimsley, Caroline Cowart, and Mrs. E. E. Holmes. It does not appear that Mrs. Holmes was served, or that her administrator was made a party after her death.

Action for damages. Before Judge Bell. Pulton superior court. April 15, 1912. Jennie Thomas instituted an action against the Georgia Granite Company and E. B. Respass, to recover damages for the homicide of Scott Thomas, the plaintiff’s husband.

<p>1. Where on the trial of a suit against a railroad company, to recover damages for injuries alleged to have been tortiously committed by the company on the person and property of the plaintiff while crossing the railroad tracks of the former at a public street crossing, there was evidence tending to show that both the plaintiff and the defendant were negligent at the time of the injury, and where it further appears that the court in its general charge failed to instruct the jury relatively to the plaintiff’s right to recover where his own negligence equals or exceeds that of the defendant, it was reversible error to refuse a written request to charge the jury as follows: “If, however, you believe that the railroad employees were negligent to some extent, and you also believe that the plaintiff was negligent to an equal or greater extent, the plaintiff can not recover in this case, and your verdict should be for the defendant.”</p> <p>2. It is not error to refuse a request to give to the jury a charge which does not accurately state a correct principle of law.</p> <p>3. Grounds as to the unconstitutionality of an act of the legislature, which are the basis of exceptions, must be urged upon the trial, and the court must pass upon them, before error can be assigned and the questions considered by the Supreme Court.</p> <p>4. An assignment of error upon the admission of testimony, which does not state what objection was made thereto when it was offered, nor set out literally or in substance the evidence objected to, will not be considered by the Supreme Court.</p> <p>5. The petition was sufficient to withstand the demurrer filed.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. July 15, 1912.</p> <p>Alfred M. Martin died on the 13th of May, 1910, leaving a will. The first item was as follows: “I give and devise to my beloved wife, Elizabeth M. Martin, the homestead plantation, being the place on which I now reside, with my summer place included, together with all the lands connected with the same; also all the horses, mules, cattle, household furniture, and everything else upon or connected with said plantation; also the sum of seventy-five thousand dollars to consist of such bonds and stocks as she may elect to .take out of the assets of my estate. To have and to hold the above-mentioned real estate and personal property for and during the period of her natural life, with full control over and enjoyment of the rents, issues, profits, dividends, and interest thereof, to be used and disposed of by her as she may deem proper; and I do hereby authorize and empower my said wife to dispose of the property hereby bequeathed to her, by her ‘will/ the same to be devised by her to such of my children or the issue of any of my children as she may desire, the children of my deceased daughter, Alice Tyler Marshall, as well as others; but the bequests so made by my said wife must be upon the same terms, conditions, and limitations as the bequests hereinafter made by me to my children and my grandchildren. But in case my said wife shall die, leaving no will, then and in that case the property hereby devised to her shall be equally divided among my children and the issue of any deceased child or children per stirpes; the issue of any deceased child taking the share that his, her, or their parent would have been entitled to if living; the title to such share to vest in the trustees or guardians hereinafter provided for, or their successors appointed according to the terms of this will, and subject to the same terms, conditions, and limitations as hereinafter provided, as to bequests hereby made. I do further direct that in the event that my said-wife should elect to take any other property belonging to -my estate in lieu of the real estate hereby devised to her, she may make such - election to the value of sixteen thousand dollars, the valuation placed on said above-described real estate, and shall hold such property elected by her to Ibe taken, upon the same terms, conditions, and limitations as hereinbefore ■ provided.” In item three he declared that it was his desire to make his children as nearly equal in the division of his estate as practicable. He thereupon devised specific property to each of his five living children and to two grandchildren, sons of .a deceased child. The devise-to each of his children and two grandchildren was upon certain trusts, terms, and limitations. His wife elected to take 694 shares of the capital stock of the Southwestern Eailroad Company of the value.of $75,000, and the certificate for the 694 shares of this stock was issued to her as life-tenant under her husband’s will; and she elected to keep the real estate and tract of land consisting of 1,300 acres in Hampton county, South Carolina. She exercised her right of election prior to the execution by her of her.last will. She owned no stock in the Southwestern Eailroad Company, and had no interest in any stock of this corporation, except the right or power of appointment over the 6-94 shares obtained under her husband’s will. The real estate that she elected to take is the same real estate which she disposed of under her will, and she exercised the right of life-tenant over this property up to the time of her death. On January 17, 1911, Mrs. Elizabeth M. Martin made her last will and testament. Items one and two related to the manner of her burial, and the direction to her executors as to the payment.of her just debts, should there be any. The remainder of her will was as follows: "Item 3. I give, bequeath, and devise unto my daughter, Eessie E. Cozart, three hundred (300) shares of the capital stock of the Southwestern Eailroad Company. Item 4. I give, bequeath, and devise unto my grandson, Alfred M. Marshall, ninety-seven (97) shares of the capital stock of the Southwestern Eailroad Company; and I give, bequeath, and devise unto my grandson, Samuel E. Marshall, ninety-seven (97) shares of the capital stock of the Southwestern Railroad Company; I give, bequeath, and devise unto the said Alfred M. and Samuel F. Marshall and Elise ,M. Jones, to share and share alike, all of that tract of land situate, lying, and being in the State of South Carolina, in the county of Hampton, adjoining ‘Woodstock/ and more particularly described as all that tract of land bounded north by Woodstock, east by Wood-side, south by the lands of Elliott and Solomons, and on the west by the Savannah River. Item 5. I give, bequeath, and devise unto my daughter, Elise M. Jones, two hundred (200) shares of the capital stock of the Southwestern Railroad Company; and I also give, bequeath, and devise unto my said daughter, Elise M. Jones, all of that tract of land situate, lying, and being in the State of South Carolina in the county of Hampton, formerly known as the ‘Homestead/ and now known as ‘Woodstock/ said tract of land containing thirty-five hundred (3500) acres more or less, and being bounded on the southwest by the Savannah River, northwest by the lands now or formerly belonging to Joseph M. Bostick, northeast by the lands now or formerly belonging to John Lawton and E. G. Solomons, east by the lands now or formerly belonging to D. Ramsey and A. M. Martin. I also give, bequeath, and devise unto my said daughter, Elise M. Jones, the dwelling-house situate on the above-described plantation, together with all the outhouses, farming implements, growing crops, and all and singular the rights, members, hereditaments, and appurtenances to the said tract of land being, belonging, or in any wise incident or appertaining. The said tract of land, herein intended to be devised and bequeathed, is the same property formerly belonging to -Edmund Martin, and is the property conveyed to Elizabeth M. Martin by Abram M. Martin and John Marshall, executors of the last will and testament of Edmund Martin, as will more fully appear from the description of said tract of land in Book of Mesne Conveyances, 7 D’s, page 305, on the records of Beaufort County, South Carolina. All of the bequests in the foregoing items are made after mature deliberation, and with full appreciation of my duty toward my other children and heirs at law, and with undiminished love and affection for each of my children and all of my beloved grandchildren. The difference made between Bessie E. Cozart 'and Elise M. Jones is made in recognition cf the many sacrifices made by the said Elise M. Jones for me, she having unselfishly devoted the best years of her life ministering to my comfort and happiness; and it is therefore my earnest desire that she possess and enjoy Woodstock Plantation, with all of its appurtenances, as fully and completely as I have in my lifetime. Item 6. I hereby nominate, constitute, and appoint the said Elise M. Jones the sole executrix of this my last wilLand testament; and I hereby expressly confer upon her full and complete power, as such, to administer my estate, expressly relieving her from giving bond or making any inventory, or having any appraisement of my estate, and also from making any returns to the Probate Court of Hampton county, South Carolina, or any other court of said State. And I do hereby expressly authorize and empower her, as my executrix, without the order or permission of any court, -and without any notice or advertisement of any kind, to sell at public or private sale any part of my estate, and execute all conveyances, transfers, and assignments she may deem necessary to carry out the provisions of this my last will and testament.”</p> <p>The railroad stock of the Southwestern Railroad Company and the land referred to in item four was the property devised to her by her husband for life, and the subject-matter upon which the power of appointment was to operate, under the first item of her husband’s will. The plantation called "Woodstock” and referred to in item five' was her individual property. Shortly after the making of the' will Mrs. Martin died, and her will was duly admitted to probate. The executors of Alfred M. Martin, who were also trustees and testamentary guardians under his last will and codicils, brought their petition to the superior court of Chatham county against the legatees of Alfred M. Martin, the executrix of Elizabeth M. Martin, and others, alleging the foregoing facts, and stating that they were advised by counsel that two possible constructions could be placed upon the will of Elizabeth M. Martin, in so far as the same relates to the railroad stock and the land which was devised to her by her husband’s will with power of appointment: one construction being that the bequests, being to the respective parties in their own right and not under the terms of the will of Alfred M. Martin, are void, which would result in the property held by the life-tenant passing, under the first item of the will of Alfred M. Martin, to all the different shares; the other construction being, that Elizabeth M. Martin having devised property which had been devised to her in her husband’s, will for life, and selecting as devisees the children and grandchildren of Alfred M. Martin, her will should be so upheld and construed as to carry out the intention of both wills, so that the devises under the will of Elizabeth M. Martin should be added to the respective shares under the will of Alfred M. Martin; and that the executors of the will of Alfred M. Martin, who were also named as trustees therein, could not safely administer their trusts without a determination of the question whether the will of Elizabeth M. Martin was an execution of the power of appointment conferred upon her by item one of the will of Alfred M. Martin.</p> <p>The facts being admitted, the case was referred to the judge without a jury. He held that the will of Elizabeth M. Martin was a due execution of the power of appointment under item one of the .will of Alfred M. Martin; and decreed agreeably to this holding. ' The minor children of William E. Martin, a deceased son of Alfred M. Martin, and their guardian ad litem, excepted to the decree.</p>

<p>Complaint. Before Judge Jones. Stephens superior court. March 7, 1912.</p>

<p>Complaint for land. Before Judge Jones. Habersham superior court. March 8, 1912.</p>

<p>Indictment for murder. Before Judge J. B. Park. Morgan superior court. April 23, 1913.</p>

<p>Custody, of children. Before Judge Hammond. Columbia superior court. June 12, 1913.</p>

<p>Indictment for rape. Before Judge Daniel. Fayette superior court. May 23, 1913.</p>

Action for damages. Before Judge Charlton. Chatham superior court. April 3, 1912. Mrs. Belle Strong Howard instituted an action against the Savannah Electric Company to recover damages for the alleged wrongful killing of her husband, Charles M. Howard, by the running of its cars.

<p>Complaint. Before Judge Walker. Warren superior court. July 20, 1912.</p>

Equitable petition. Before Judge Walker. Jackson superior court. February 15, 1912. In December, 1911, Mrs. Eva B. Stone brought an action in the,; superior court of Jackson county against King-Hodgson Company, a partnership, all the members of which resided in Clarke county, and J. 0. Stapler, C. E. Fleeman, J. P. Johnson, and J. J. Pace, residents of - Jaekson county; the substance of the petition being as follows:.

<p>Equitable petition. Before Judge Jones. Hall superior court. May 17, 1912.</p>

Petition f-or injunction. Before Judge Eite. Dade superior ■court. April 15, 1913. Held: “which resulted in 60 votes for local taxation for schools in said district and 34 votes against local taxation.” It was further alleged that “local taxation did not carry,” for the reason that “there was not the requisite two-thirds majority voting for such taxation,” it being urged that under the constitution (Civil Code, § 6579),…

<p>Equitable petition. Before Judge Gilbert. Taylor superior court. December 30, 1912. ,</p>

<p>Injunction. Before Judge Charlton. Chatham superior court. February 8, 1913.</p>

Questions of law; from Court of Appeals (4073). The Court of Appeals certified the following questions: “Where a petition is dismissed in the trial court upon general demurrer, and that judgment has been reviewed by the Court of Appeals and reversed in a decision holding that the petition sets forth a cause of action, and, subsequently to the rendition of such decision by the Court of Appeals, the Supreme Court renders a decision in another ease, the effect of which is to…

<p>Appeal from condemnation. Before Judge Edwards. Newton superior court. June 15, 1912.</p>

<p>1. Where a written agreement was entered into between two corporations, whereby one was to execute a deed to the other upon certain conditions, and subsequently a deed in fee simple to the land referred to in the agreement was executed, reciting in the preamble thereof that whereas by agreement between the parties the grantor agreed to convey to the grantee certain land on “certain conditions which have since been complied with,” but the habendum clause of the deed contained no such conditions, the conditions of the agreement were merged in the conveyance, and the grantee in the deed held the land freed from the conditions contained in the agreement.</p> <p>2. Where a deed purports on its face to convey certain land from one corporation, as grantor, to another, and the corporate name is signed to the deed by the president thereof, with the corporate seal attached, the presumption is that the official or executive officer was authorized to execute the conveyance on behalf of the corporation.</p> <p>3. It follows that a petition disclosing the facts set out in the preceding notes, seeking to recover the land on' the ground of a breach of the condition subsequent contained in the agreement, filed by the grantor against the holder of the land under the deed, is subject to general demurrer.</p>

<p>1. On the trial of a suit brought by the receiver of a corporation, to recover the price of stock alleged to have been subscribed by a stockholder, whose defense was that he subscribed for a certain number of shares for which he had paid according to contract, but that the number of shares set opposite his name on the subscription list was raised to a larger number by some one not authorized by him, the price of which excess number of shares the suit was brought to recover, it was not error requiring a new trial, under the facts of the case, for the court to decline to allow in evidence, when offered by the plaintiff, the stock book of the corporation containing a blank stock certificate signed by the defendant as president of the corporation, and the stub attached thereto, which read “certificate No. 54 for 25 shares issued to” the defendant, the number of shares named being in excess of the number the defendant conceded to have subscribed, where he, as a witness in his own behalf, gave evidence showing the existence and contents of the stub and certificate as contended by the plaintiff.</p> <p>2. It was not error to allow-the introduction in evidence of the receipt set out in the second division of the opinion, fpr the reason there stated.</p> <p>3. Under the facts of this case, it was not error for the court to decline to give the following instruction to the jury: “If you find from the evidence that the treasurer of the Savannah Sand Lime Brick Company had its subscription list, and that subscription list had on it the name of John E. Tietjen, with 50 shares written thereafter, and the treasurer was charged by the corporation with the duty of collecting such subscription, then, at the time the treasurer of the corporation ascertained that such subscription was 50 shares, the treasurer knew it, and John E. Tietjen when he became president of the'corporation would be chargeable with such knowledge.”</p>

Action for damages. Before Judge Harris. Bibb superior court. June 4, 1912. Fanny Anchors brought suit against the railroad company for damages from the homicide of her husband, Samuel Anchors, who was a section foreman for the railroad. While in charge of a hand-car carrying a gang of workmen to their work on the 31st of January, 1911, the car was derailed and Anchors received injuries which resulted in his death.

<p>Action upon insurance policy. Before Judge Felton. Bibb superior court. April 30, 1912.</p>

<p>Action upon bond. Before Judge Walker. Wilkes superior court. February 5, 1912.</p>

<p>Exceptions to auditor’s report. Before Judge Walker. Gwinnett superior court. March 14, .1912.</p>

Trover. Before Judge Daniel. Gwinnett-superior court. April 30, 1912. Spencer brought trover against Rowe. There was a verdict for the plaintiff. The defendant was refused a new trial, and he excepted.

Before Judge Jones, Jackson superior court. May 28, 1912. The case of Duke v. Pendergrass was tried at the February term, 1912, of the superior court of Jackson county, which term continued longer than one week. Judge J. B. Jones, of the Northeastern circuit, presided the first week of the term, in the absence of Judge Brand, the judge of the Western circuit, of which Jackson county constitutes a part. The case was tried and submitted to the jury during the first week.

<p>Effingham Petition for injunction. Before Judge Sheppard, superior court. June 6, 1913.</p>

<p>1. By the sixth item of his will a testator provided as follows: “All of the other real property I own or may own at my death, exclusive of what has been devised in the foregoing items, I give and devise share and share alike to my seven children [naming them], for the term of • their natural lives respectfully [respectively?], with remainder in fee to their surviving lawful issue if any; and if any one shall die without issue, his or her share shall be distributed share and share alike amongst the lawful issue of the others surviving, for and during their natural life.” The eighth item was as follows: “I desire and request of my executors and executrix named in the first item of this will to keep all the property mentioned in item 6th undivided until the youngest one of the issue of my sons and daughters mentioned in said item 6 shall be- ■ come of age.” After the testator’s death one of the sons died, leaving children surviving him. Some of them are of age. They filed an equitable petition for the purpose of having their shares of the property devised in the sixth item of the will delivered to them. Held, that the sixth item of the will created a life-estate in each of the children of the testator respectively, with a contingent remainder over as to such share to the children of each child, and with an executory devise in case any child of the testator should die without issue.</p> <p>2. Where a son of the testator survived him and died, leaving the present plaintiffs as his lawful children, they took vested indefeasible interests in one seventh of such property. As to such shares there was no active intervening trust; and those of the plaintiffs who were of full age and sui juris were entitled'to have the executors assent to the devise as. to them and deliver to them their respective interests. (Atkinson, J., dissents from the latter part of this headnote.)</p> <p>(a) The general rule, that, in proceedings for partitioning property among tenants in common, ordinarily there should be a complete partitioning, is subject to some exceptions. It does not affect the right of the devisee, who is entitled to possession of property devised to him, to have his share delivered to him, although there may be other devisees who • are not entitled to possession at the same time.</p> <p>3. Under the rulings made in the preceding headnote, the provisions of the will above quoted did not conflict with the rule against perpetuities.:</p> <p>4. As to the plaintiffs who are of age and sui juris, the action is not . premature. (Atkinson, J., dissents.)</p> <p>(a) The allegation that the plaintiffs are tenants in common with the executors and entitled to partition on that basis was demurrable; but it did not require the dismissal of the entire case.</p> <p>¡(6) The allegations as to the hostile attitude of the executor, and of the inability of the plaintiffs to ascertain what constituted the residuum devised by the sixth item of the will, were sufficient to withstand the demurrer.</p> <p>[(e) Under the allegations of the petition, all parties in interest should have been made parties to the ease.</p> <p>5. Inasmuch as the court sustained the demurrer on all the grounds thereof and dismissed the case, thus erring as to the substantial merits of the petition, the judgment is reversed, with direction that the ease he reinstated; that the demurrer to the allegations of the sixth paragraph of the petition, touching the existence of a tenancy in common between the plaintiffs and the executors, he sustained; that the court allow a reasonable opportunity for the plaintiffs to -make necessary parties as herein indicated, and, upon failure so to do, that the action he dismissed for want of proper parties.</p>

<p>1. The court did not err in excluding from evidence the following entry of service of another suit previously brought by the plaintiff in the present case against another party: “Georgia, Decatur County. I have this day served H. M. Graham personally with a copy of the within original, and T. C. Wainman by leaving a copy of the within original at his most notorious place of abode. This May 8, 1902. A. W. Eordham, sheriff.” This entry of service- did not show service upon the defendant so as to make it bound by the judgment in the other suit, under the provision of the Civil Code, § 5579.</p> <p>2. Nor did the court err in refusing to permit one who was the attorney at law for the plaintiff in the other suit to testify that he had instructed the sheriff to serve the defendant in the present suit.</p> <p>3. The court did not err in refusing to allow an amendment of the entry of service just quoted, so as to show that the “service was on the Stuart Lumber Company by serving H. M. Graham, the general manager.”</p> <p>4. The plaintiff having failed to produce -any evidence to establish facts which were held, when this case was formerly before the Supreme Court, to be essential for him to show in order to make out a ease, he was not entitled to recover on the last hearing. .</p>

Action for damages. Before Judge Bell. Fulton superior court. March 2, 1913. The plaintiff, a man about sixty years old, was struck by a streetcar at midday of October 11, 1908.

<p>Equitable petition — intervention. Before Judge Charlton. Chatham superior court. May 4, 1912.</p>

<p>Claim. Before Judge Jones. White superior court. June 10, ■ 1912.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. March 23, 1912.</p>

Action for damages. Before Judge Sheppard. Bryan superior court. May 7, 1912. C. C. Butler brought suit against P. I. Bimes of Bryan county, J. A. Kennedy of Tattnall county, and the Tattnall Bank, and alleged substantially as' follows: The defendants have damaged him in the sum of $10,129.75, as hereinafter set out.

<p>Complaiut. Before Judge Brand. Clarke superior court. August 12, 1912.</p> <p>On March 15, 1907, upon an involuntary petition in bankruptcy, T. H. Wofford upon his admission of insolvency was adjudged a bankrupt. T. J. Shackelford was duly appointed trustee. On February 8, 1907, the Arnold Grocery Company received from Wofford various and sundry dry goods, clothing, hats, etc., from his stock of merchandise, in settlement of a pre-existing debt. Before the estate in bankruptcy was closed the trustee filed a suit in the superior court against the Arnold Grocery Company, on March 4, 1911, for the recovery of the alleged value of the goods, on the ground that the transfer of the goods was preferential, and fraudulent as against the creditors, and void under the bankrupt act. The defendant filed an answer, which, so far as material to be stated, alleged, “that, as more than four years have elapsed between said date (the date of transfer, February 8, 1907) and the time of the filing of this suit, said claim of trustee, if any ever existed, became barred by the statute of limitations; and this defendant pleads that fact in bar of the plaintiff’s cause of action in this case.” "When the case came on for trial it was submitted to the judge for decision, without the intervention of a jury, on an agreed statement that the facts were to the effect above stated, and that settlement of the account by delivery of the goods constituted a preference voidable under the bankrupt act, if the action was brought within the proper time. Judgment was rendered against the plea setting up the bar by the statute of limitations, and in favor of the plaintiff for the amount set forth in the agreed statement of facts. The defendant excepted.</p>

<p>1. The propounder of a will, who is also named in the will as executor and as one of the legatees under the will, is not disqualified from testifying to the fact of the signing of the will by the testator in the presence ■ of the subscribing witnesses.</p> <p>(a) The interest of the witness in the case affects merely his credit, leav-' ing the question as to what weight should be given the testimony of the witness for determination by the jury.</p> <p>2. Where the subscribing witnesses to a propounded will testify that they can not remember whether the testator signed the will in their presence, or even where one or more of the subscribing witnesses deny that the testator did sign in their presence, the fact that the will was duly signed in their presence may be shown by other competent testimony.</p> <p>3. Where an instrument was propounded for probate as a will, and a ■ caveat was filed, setting, up want of testamentary capacity and undue influence, and denying the factum of the will, and where upon the trial abundant evidence was introduced by the propounder to show the testamentary capacity of the maker, and no evidence at all was introduced by the caveators tending to conflict therewith, and there was nothing, either in the will itself or in the facts disclosed by the evidence, authorizing an inference of want of testamentary capacity, but the issue raised by conflicting evidence was confined solely to the question of the factum of the will, it will not require a new trial that the presiding . judge, after charging fully as to the question upon which the conflicting evidence was introduced, charged the jury that the question of whether . the testator was of sound mind and memory was not an issue in the case.</p> <p>4. A motion for a new trial which complains that the judge charged the jury on the subject of the impeachment of witnesses, without stating at least in substance the charge as given, raises no question for determination.</p> <p>5. .The evidence authorized the verdict.</p>

<p>Action for damages. Before Judge Jones. Stephens superior court. May 13,1912.</p>

<p>Complaint. Before Judge Jones. Habersham superior court. June 1, 1912.</p>

<p>Lien foreclosure. Before Judge Ellis. Eulton superior court. March 14, 1912.</p>

<p>1. Assignments of error which are not referred to in the brief of counsel for plaintiff in error will be treated as abandoned.</p> <p>2. A written contract, apparently containing the entire agreement of the parties and disclosing no incompleteness, can not be enlarged by parol so as to include additional terms and stipulations, in the absence of fraud or mistake.</p> <p>3. In taking depositions of certain witnesses there was no compliance with the statute in regard to the time of giving notice to the opposite party, and on appropriate objection it was erroneous to admit the depositions in evidence at the trial of the case.</p> <p>4. Testimony tending to show that the defendant was induced to sign the - note for the stock by false statements of the agent of the payee, in regard to the financial worth of the corporation and the personnel of its directors, was not inadmissible on the ground that the evidence , failed to show fraud in the procurement of the note, or that it tended to vary the terms^of the written contract.</p> <p>5. There was no evidence of failure of consideration. There was evidence of fraud upon the maker, practised by the agent of the payee, which induced execution of the note; but there was no evidence to show notice thereof to the plaintiff at the time it took the note, or to charge it with notice of the fraud. There being no evidence to authorize it, the judge erred in charging on the subject of failure of consideration and on the subject of fraud perpetrated by the payee upon the maker of the note.</p>

Complaint for land. Before Judge Brand. Banks superior court. January 18, 1913. In an action of complaint for land by W. W. Stark, as administrator cum testamento annexo, against J. R. Chambers, who claimed under a deed from the widow of the testator, the main issue was whether the deed operated to convey to the defendant the absolute fee-simple estate, or merely an estate for the life of the widow. The suit was instituted shortly after the death of the widow.

Mortgage foreclosure. Before Judge Morris. C.obb superior court. February 10, 1912.

<p>Money rule. Before Judge Fite. Whitfield superior court. February 5, 1912.</p> <p>A rule was brought against the sheriff, to distribute money in his hands arising from the sale of certain personal property of Mrs. Mary Evans under an attachment in favor of Hardwick & Co. J. M. Cash, claiming to be the transferee of an execution in favor of William Barr Dry Goods Co. against Mrs. Mary Evans, claimed a portion of the money in the hands of the sheriff. Hard-wick’s attachment issued on June 9, 1908, and was levied on June 10, 1908. The judgment in favor of William Barr Dry Goods Co. was obtained on November 21, 1907, and execution issued on December 2, 1907. There is no evidence in the record'that the execution was ever entered upon the general execution docket, except the statement by the attorney for Hardwick that the docket showed it had been entered, but no date is given of this entry. The following receipts appeared upon the execution: "$105.00. Beceived of J. H. Gilbert, Sheriff, One Hundred and Five Dollars, full balance, principal and interest due on the within fi. fa., this Feb. 5th, 1909. J. M. Eudolph, Plaintiff Attorney.” "Georgia, Whitfield County. Eeeeived from J. M. Cash the sum of $153.31, being the remainder due and payment in full of all principal, interest, costs, inclusive of $35.00 paid to F. K. McCutchen for storage, and the within fi. fa. transferred to said J. M. Cash so far as the office of Sheriff authorizes me to transfer same, together with all rights thereunder vested in the original plaintiffs, this being intended to operate as a full receipt in settlement of the within fi. fa. This February 2nd, 1909. J. H. Gilbert, Sheriff.” Cash claimed the fund in the hands of the sheriff by virtue of the above transfer to him. Upon the issue formed upon the rule the jury found in favor of Cash, transferee of the fi. fa. A motion for a new trial was made by Hardwick & Co., which being overruled, they excepted.</p>

<p>Action for breach of promise of marriage. Before Judge Fite. Catoosa superior court. May 6, 1912.</p>

<p>Equitable petition. Before Judge Eite. Murray superior court. January 23, 1912.</p>

Equitable petition. Before Judge Fite.' Gordon superior court. August 5,1912. H. L. Hall owned a spring near the town of Calhoun, Georgia. The municipal authorities of Calhoun decided to establish a system of waterworks, to be supplied in part with water from the spring.

<p>. Action for damages. Before Judge George. Ben Hill superior court. March 9, 1912.</p>

<p>Equitable petition. Before Judge Pendleton, Eulton superior court. June 3, 1912.</p>

<p>Trover. Before Judge Fite. Whitfield superior court. August 26, 1912.</p>

<p>Application for mandamus to require Judge George to certify • a bill of exceptions.</p>

<p>Complaint. Before Judge Bell. Pulton superior court. May 18, 1912.</p>

<p>Action for damages. Before Judge Jones. Hall superior court. May 17, 1913. '</p>

<p>Where an affidavit of illegality is filed, by an owner of property abutting on a street, to an execution issued by the city council of Dalton according to statute for the grading, paving, and improvement of certain streets within that city, which by neces'sary implication admits that some amount is due on the execution, which is not paid to the levying . officer as required by the act of 1911 (Acts 1911, p. 1097 et seq.), such affidavit is subject to a general demurrer.</p> <p>(a) An affidavit of illegality which alleges that “the amount of the execution is excessive” admits by necessary implication that some amount not excessive, included therein, is due.</p> <p>(5) In such a ease, before an affidavit of illegality will be received, the amount admitted to be due must be paid to the levying officer.</p> <p>(c) An allegation in an affidavit of illegality that there has been “included” in the amount for which the execution has issued certain sums alleged to be illegal necessarily implies that some amount ’included which is not illegal is due; and accordingly such affidavit will not be received until the amount admitted to be due is paid.</p>

<p>The court did not err in granting the interlocutory injunction prayed for.</p>

<p>Action upon insurance policy. Before Judge Frank Park. Decatur superior court. July 5, 1913.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. February 2, 1912.</p> <p>This case has been before the Supreme Court on two occasions. Killian v. Banks, 103 Ga. 245 (29 S. E. 971); Id. Ill Ga. 850 (36 S. E. 635). Banks instituted proceedings to dispossess Killian of certain land, and Killian filed a suit to enjoin those proceedings, to cancel certain deeds under which plaintiff claimed, and to have title decreed to be in defendant. On the first occasion the Supreme Court decided that there was no abuse of discretion upon the part of the trial judge in refusing the injunction, and also that the judge properly rejected an affidavit of the plaintiff in the injunction suit on the ground that she was incompetent to testify; but in the course of the opinion it was said that under the allegations in the petition the defendant was not an innocent purchaser, and if plaintiff “can, by aliunde evidence, establish her claim to the satisfaction of the jury, she will be entitled to recover the whole property.” On the second occasion, the plaintiff having recovered, this court refused to interfere with, the exercise of the judge’s discretion in the first grant of a new trial. Subsequently the plaintiff died, and the case was prosecuted by the administrator on her estate. A second verdict was rendered against the defendant, who made a motion for new trial on the general grounds, and upon several special grounds which included exceptions to rulings on the admissibility of evidence, to the charge of the court, and to a refusal to charge on written request. The judge overruled the motion, and the movant excepted. The other material facts appear in the opinion.</p>

<p>Illegality of execution. Before Judge Pendleton. Fulton superior court. April 2, 1912.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. March 9, 1912.</p>

<p>Upon a judgment rendered on the 12th day of May, 1902, an execution was duly issued on the 28th day of September, 1907. On the back of the fi. fa., after stating the case, there is an itemized statement of the principal, interest, and costs due upon the execution, as well as an entry as follows: “Superior Court, Habersham County, Georgia. Entered on the general execution docket, page 164, this 28 day of Sept., 1907. J. A. Erwin, Clerk.” Eollowing this is an entry of a levy of the execution upon certain described real estate, dated January 4, 1909, and signed by the sheriff; and on the execution docket of the superior court of the same county are entries showing the names of parties, the amounts due on the fi. fa., and under the head, “date issued and to whom delivered,” is the date Sept. 28th, 1907. Nothing further appears showing the date of entry of the fi. fa. upon the execution docket. Seld, that the entry set forth above is not, under the ruling in the case of Oliver v. James, 131 Oa. 182, a sufficient compliance with the provisions of §§ 4355 and 4357 of the Civil Code to- prevent the dormancy of the execution after the expiration of the period of seven years from the date of the rendition of the judgment.</p>

<p>Complaint. Before Judge Fite. Bartow superior • court. January 16, 1912.</p>

<p>The action was brought by two plaintiffs against a railroad company, to recover damages for the burning, by the alleged negligence of the defendant, of certain property which it was claimed belonged jointly to the plaintiffs. The verdict for the plaintiffs, which was for the full amount sued for, was not authorized by the evidence, because joint ownership as to much of the property was not proved.</p>

<p>1. The uneontradieted evidence in the case shows that the plaintiff, at the time he received the injuries complained of, was engaged in interstate-commerce; and the charge of the court to the jury upon this question was not error.</p> <p>2. There was no evidence in the case to support the allegations of the petition showing negligence upon the part of the defendant railroad company or its employees, and the verdict was unauthorized by the evidence.</p> <p>3. The court erred in giving in charge to the jury the provisions of the State statute raising a presumption against the railroad company upon proof of injuries by the running of its locomotives or cars.</p>

<p>1. The plaintiff rested her prayer for a decree of specific performance upon the contentions that there had been a parol gift of the land, possession under the gift, and substantial improvements made by her; and that there was an agreement which amounted to a contract of sale and purchase, and that she had entered into possession under this contract and made valuable improvements. There was no evidence to support the theory that there was a parol gift of the land, possession taken, and substantial improvements made in pursuance thereof; and the court in the chai'ge to the jury should have distinctly confined them, in determining whether or not the plaintiff was entitled to a decree of specific performance, to the allegations of a contract of sale and purchase, and to the evidence upon that issue.</p> <p>2. The court’s statement of the contentions of the parties was not entirely accurate; but it is not decided whether this inaccuracy will be sufficient ground for a new trial, as the judgment refusing a new trial is reversed upon another point.</p> <p>3. To entitle the plaintiff to a decree for specific performance of a parol contract for the sale of land, the contract must first be established to a reasonable certainty; and the consideration claimed to have been paid or rendered therefor must be clearly and satisfactorily proved to have been paid or rendered in performance of that contract. Or, if the plaintiff seeking the decree relies upon possession with valuable improvements, it must be established, by evidence of the character just described, to have been made with reference to the contract. In the present case the evidence fails to show that the payments alleged to have been made were actually made with reference to the contract, and fails also to show the making of valuable improvements with reference to the contract.</p>

<p>Equitable petition. Before Judge Frank Park. Turner superior court. March 12, 1912.</p>

Claim. Before Judge Thomas. Tift superior court. January 18, 1912. * On July 4th, 1906, the Blackshear Manufacturing Company obtained several personal judgments against J. H. Ford. During the same month separate executions based on the several judgments were issued.

<p>Equitable petition. Before Judge Meadow. Oglethorpe superior court. April 9, 1912.</p>

<p>Action for damages. Before Judge Meadow. Madison superior court. August 24, 1912..</p> <p>Mrs. Mattie Steadman, for berself and in behalf of her three minor children, brought an action against O. A. Stevens and nine other defendants, for the alleged wrongful homicide of G. M. Steadman. So much of the petition as needs now to be considered was to the following effect: G. M. Steadman, hereinafter referred to ras the decedent, was the husband of. Mrs. Mattie Steadman, and the father of the three minor children. He and the defendants were stockholders of the Tiller-Glenn Company, a domestic corporation doing an extensive and lucrative business. He was vice-president and assistant general manager of the corporation, and owned ten shares of its capital stock, which by reason of his efficient management of the affairs of the -corporation, had about doubled in value since he became a stockholder. He “was naturally of a very nervous, excitable temperament.” About two years prior to the time hereinafter referred to, “he had an attack of fever, which left his kidneys affected, and causing him thereafter to suffer more or less with dyspepsia, and occasional attacks of neuralgia, which tended at times to augment his said nervous disposition, and rendered him more easily influenced and depressed by unjust criticism, or other improper action or conduct of others towards him;” and “each and all of these facts were well known to said defendants.” O. A. Stevens, one of the defendants, was bookkeeper for the corporation, and had held such position for many years. He was related by blood or> marriage to all of the other defendants. He “had a grudge against” the decedent, and, “for the purpose of humiliating [him] and driving him out of said business, and that he, 0. A. Stevens,.'cord d finally get rid of [decedent] and get him out of his way, -and dispose of him finally, and that they [the defendants] might thereafter buy in the stock of [decedent] at a greatly reduced value after [decedent] was dead and finally disposed of, as it was intended he should be thereby,; conceived the idea of bringing unjust, unfounded, and mysterious charges against [decedent], well knowing the disastrous and prob-‘ ably fatal result that the same would'have on and to [decedent] owing to his very nervous temperament and state of health.” And the other defendants, “likewise well knowing the said facts, conspired and confederated with the said 0. A. Stevens to bring about said end. With this end in view, and well knowing the disastrous and fatal results that would be caused thereby to [decedent] on account of his nervous temperament and state of health,' which was well known to them, the said 0. A. Stevens and other defendants conspiring and confederating with him prepared and had served on [decedent] a paper which contained vague and mysterious and unfounded charges, and threatened that if he did not turn over his keys to the president without question, .and resign his position in said company, and sever his connection therewith immediately, it would be worse for himself and his family, and that they would at once have him discharged from said company, and driven from 'the business, and thus publicly humiliate and mortify him. Said paper being signed by each and all of the defendants, and also having added a clause containing an oath to' the effect that they would not mention their reasons to any except the members of said firm. Said oath clause being likewise signed by each and all of the defendants.”</p> <p>A copy of the paper was attached to the petition, to meet a special demurrer, and was as follows: “To G. M. Steadman, Carlton, Ga. We, the undersigned members of the firm of Tiller-Glenn Co., respectfully ask that you resign your position immediately upon presentation of this notice. Unless same is done, we will at once discontinue your services any longer. We would ask that you not inquire into the details for reasons: 1st, because it will be best for you and your family; 2nd, because it will be best for our firm; 3rd, because we know you will not try to force your service on us when we did not want it, and are not satisfied with it, and won’t have it. You will be at liberty to hold on to your stock in said •firm or corporation, or to sell, as you desire. (We are willing to let -our friendship and sociality remain as before. JjW'e do not propose to mention our reason for this to any one except the signed members of this notice which appears below, unless we are forced to in.order to protect our business; this we make oath to below. This is only a business matter with us, and have caused us considerable trouble for several months. We will all sell out before we will accept your service any longer. If you will buy all of us, then we will get out. You will exercise good judgment to resign at once, deliver your keys to the president without any questions whatever. We' sincerely wish for you all the good luck that a young man might have, and that your relations towards us and ours towards you may be pleasant. We request the secretary and treasurer to beep copy of this notice and to enter same into the minute book of said firm. Witness our hands and seals this 7th day of September, 1911.” Signed by the defendants.</p> <p>“Now come the above signed members of the firm of Tiller-Glenn Co., who on oath say that they will not mention their reasons to any one except the members of said'firm, unless the said G. M. Steadman begin saying some unpleasant things about said firm, trying to damage said firm in any way.” Signed, sworn to, and subscribed by the defendants.</p> <p>The paper was delivered to the decedent by one of the stockhold-' ers on Saturday night, September 9, 1911, after he had left the store and the business for the week had been closed. Decedent, as the defendants knew, had a number of business engagements with the customers of the corporation on the following Monday. “The time, place, and manner of thus imposing on [him] these unjust and mysterious charges and threats, and which it was stated would not be explained or discussed with him, and which he was not to attempt to discuss with them, or any of them, or to investigate under said mysterious and dire threats, was further calculated, as was well known to defendants and intended by them, to throw [decedent] into a high state of nervous excitement, to unbalance him, and to cause his reason to become dethroned, and in such unbalanced and uncontrolled condition to take his own life in order to be rid of the nameless horrors by which they had surrounded him, and from which, it would seem to him in his said unbalanced condition which was produced by their illegal and criminal conduct, there was no other escape from.” He had ever been an upright and honest official of the corporation, and had faithfully discharged his duties as such, and defendants had no just cause of complaint against him; and the first intimation he had that defendants had anything against him, or any desire or intent to injure him, was the delivery to him of the paper containing the unfounded and mysterious threats and charges against him. He "was greatly mortified and rendered Very nervous and excited” by reading the paper, and "begged and implored the deliverer of said paper to inform him what the said defendants had against him, and with what did they seek to charge him, and why did they threaten publicly to disclose him, as aforesaid, and without any just cause whatever.” The bearer of the paper declined to give him any information on the subject, by reason of his promise to the other defendants not to do so. The natural result of said conduct on the part of the defendants, “and as was known and contemplated by the defendants that it would be, owing to his nervous temperament and state of health, [decedent] was rendered very nervous and excited, could not sleep and could not eat, and was in a state of great despondency and despair all day Sunday, owing to said mysterious charges and direful threats.” Late Sunday afternoon he found another of the defendants and endeavored to ascertain from him the same information he had sought from the other defendant, but with like failure to do so. He was thus rendered more nervous and excited and became very despondent. The making of such mysterious charges and threats against him and the refusal of the defendants to inform him of their nature, so that he could explain and refute them, and "owing to his nervous temperament and condition of health, which was well known to them, caused him to become unbalanced, and his reason to be dethroned, 'and, while in such condition, to take a large amount of morphine or other narcotic, hoping thereby, in his unbalanced and unreasoning condition, to escape from the horrors of said nameless charges and threats and the public disgrace threatened by them. From which said large dose of narcotic he died on the following Monday morning, his death being due and chargeable to the illegal and criminal conduct of the said defendants, as aforesaid, and the natural and almost inevitable result of the illegal and criminal conduct of said conspirators, and in their contemplation in signing and sending said paper, and in making said charges and threats to him.” The plaintiff “charges that the said conduct of said 0. A. Stevens and the other defendants who conspired with him, as hereinbefore stated, was a criminal conspiracy resulting in the death of her husband, as was in contemplation of and intended by the said 0. A. Stevens with the other defendants conspired and confederated, as hereinbefore stated.; and that each and all of them are liable to her therefor.” The defendants demurred to the petition, on the. grounds, that it set forth no cause of action, in that the injury complained of was not_actionable,_that_ the_damages claimed were too remote to be recoverable, and that the charges made were not the proximate cause of the injury complained of. The demurrer was overruled, and the defendants excepted.</p>

<p>Habeas corpus. Before Judge Grabam. Pulaski superior court. June 10, 1913.</p>

<p>Action for damages. Before Judge Fite. Murray superior court. October 5, 1912.</p>

<p>Complaint. Before Judge Maddox. Floyd superior court. January 18, 1913.</p>

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

<p>Citation. Before Judge Edwards. Paulding superior court. August 8, 1912.</p>

<p>A lease for ten years of a stone quarry contained a covenant that the lessee should pay a stated sum for each car of stone quarried, and that monthly settlements should be had. The landlord sued out a warrant to summarily dispossess the tenant under the Civil Code, § 5385, on the ground of the tenant’s failure to pay rent. The tenant filed the statutory counter-aifidavit. Thereafter the landlord accepted from the tenant rent that accrued, under the lease, subsequently to the institution of the summary process. Such acceptance operated as a waiver of the landlord’s right to claim a forfeiture of the lease because of the tenant’s arrears prior to the issuance of the summary process.</p>

<p>Equitable petition. Before Judge James B. Park. Jones superior court. October 24, 1912.</p>

<p>1. An executor under a will probated in common form, who is called upon by heirs at law to probate it in solemn form, is entitled to an allowance of reasonable counsel fees out of the estate for such service, notwithstanding the will may be refused probate.</p> <p>2. But if the executor in bad faith and in fraud of the rights of heirs attempt to probate a pretended will, he is not entitled to reimbursement from the estate for expenses incurred in his effort to defraud the heirs.</p> <p>3. The good faith of the counsel of the executor is immaterial, as his right to compensation out of the estate is dependent upon the right of the executor to have an allowance from the estate for reasonable and necessary expenses incurred upon compliance with the demand of the heirs to probate the will in solemn form.</p>

<p>Counsel fees and expenses incurred by an administrator with the will annexed, in defending a proceeding by certain legatees to revoke his letters on the ground of mismanagement (which proceeding was voluntarily discontinued), are not chargeable against the legacies due the legatees who instituted ■ the proceeding, in ■ a final settlement of' the estate. Where such charges are proper they go against the general estate.</p>

<p>Temporary alimony. Before Judge Rawlings. Emanuel superior court. April 26, 1913.</p>

<p>1. A nuisance is anything that worketh hurt, inconvenience, or damage to another.</p> <p>2. The petition in this case, properly construed, is an action for the recovery of damages resulting from the maintenance of a continuing nuisance.</p> <p>3. In such a case prescription does not run in favor of its maintenance, though damages for the maintenance can not be recovered further back than four years from the bringing of the suit.</p> <p>(а) It is error for the trial judge to charge the law applicable to an action for damages arising from the creation of a nuisance, where- it appears that the action brought is one for the recovery of damages arising from a continuing nuisance alleged to be maintained by the alienee of the one creating the nuisance.</p> <p>(б) In the trial of an action to recover damages to land resulting from the maintenance of a continuing nuisance by the alienee of a railroad company, it was error for the court to instruct the jury that “If there has been any greater overflow within the last four years prior to the bringing of this suit, and the plaintiff has been injured and damaged in consequence of increased overflow or diversion of the water, and this was done by any act of the railroad company, then the company would be liable for whatever damages he has sustained in consequence thereof.” This charge restricted the finding of damages solely to those elements resulting from an increased overflow of water within a period of four years prior to the filing of the suit.</p> <p>(c) In such a case the jury are not restricted to finding damages accruing on account of the “increased overflow” within four years from the bringing of the suit, but they may, if the evidence authorizes it, find whatever damages the plaintiff has sustained from the maintenance of the nuisance within the four-year period, whether it be from “increased overflow” or otherwise.</p> <p>(d) If the action be against the alienee of the person creating the nuisance, it can only be maintained against such person after giving notice to abate the nuisance, and is for damages resulting from its maintenance, and not for its creation.</p>

<p>Petition for injunction. Before Judge Brand. Clarke superior court. . March 31, 1913.</p>

<p>Civil Code § 2699, requiring railroad companies to build and maintain cattle-guards on each side of every public road or private way established pursuant to law, and on the dividing line of adjacent landowners, where the railroad may cross such public roads, private ways, or dividing lines, on written notice by the owner of lands to be affected by such cattle-guards, is intended for the protection of landowners whose lands are intersected by a railroad right of way, and not for the benefit or protection of the owners of land abutting- on a railroad right of way.</p>

<p>Action for breach of contract. Before Judge Fite. Dade superior court. September 17, 1912.</p>

Equitable petition. Before Judge( Eite. Bartow superior court. November 11, 1912. McEwen, as trustee in bankruptcy of the Southern Iron Company, brought suit against W. M. Kelly, W. H. Totten Jr., and W. C. Satterfield, seeking to recover $3,490.57.

<p>1. The employment of a minor under the prescribed age in a factory, in disobedience of the statute prohibiting such employment, is negligence per se; and if injury to such child proximately results from the employment, a right of action in its favor arises.</p> <p>2. The statutory prohibition against employing children under a prescribed age in a factory excludes the defense of the assumption by them of risks incident to such employment.</p> <p>3. In a suit by a child alleging injury as the result of his employment in a factory in violation of a statute prohibiting the employment in factories of children under a prescribed age, if the injury was not the result of the employment, but of some wholly independent cause disconnected from his employment, there can be no recovery.</p> <p>4. In such a case the defense that the child was guilty of such negligence as to prevent a recovery is also open to the defendant.</p> <p>(a) Under the statute of this State, if the plaintiff is not guilty of such negligence as will prevent a recovery, but is guilty of some negligence, the doctrine of diminution of damages may alsd be invoked.</p> <p>5. The diligence required of a child of tender years is not to be measured by the ordinary care required of an adult; but due care in such a child is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation.</p> <p>6. Where suit was brought for a personal injury to a child, and on the trial, about two years and a half after its occurrence, the plaintiff testified in substance that by reason of the injury he lost his thumb and forefinger and about half of his right hand, that he could do a little work with that hand, that he was confined to the house for more than a week after he was hurt, and could do no work for two or three months, and that his injury still caused him pain at night, there was enough evidence to authorize a charge on the subject of pain and suffering, mental and physical, which he might have suffered in the past and which he might suffer in the future.</p> <p>(a) This is true although the witness added to the testimony above mentioned, “My hand does not hurt now unless I hurt it in some way. My hand is not so easy to hurt.”</p> <p>7. None of the grounds of the motion for a new trial which are not specially mentioned require a reversal.</p>

<p>1. Where certain tenants in common file a petition for partition against their cotenants, who do not desire partition but make no resistance, and the property, being incapable of division by metes and bounds, is sold under order of court, and the proceeds are brought into court for distribution, the applicants for partition are not entitled, in the absence of a statutory provision to that effect, to have fees awarded to their attorneys from the fund, thus requiring their cotenants to contribute to the payment of such fees.</p> <p>(a) Civil Code §§ 5365, 5366, which provide that, if land is incapable of division by metes and bounds, it shall be sold by .commissioners, under order of the court, and the proceeds shall be divided, “after deducting the expenses of the proceeding,” do not authorize the award from the fund of fees for the attorneys representing the applicants for partition.</p>

<p>Complaint for land. Before Judge Maddox. Eloyd superior court. October 9, 1912.</p>

<p>The dissolution of a garnishment by a person not a party to the proceeding, authorized by the Civil Code (1910), § 5282, discharges the garnishee from further líabilií j upon the filing of a dissolution bond. As the privilege of a stranger to the suit to dissolve the garnishment by bond exists only by force of the statute, a claimant of only a portion of the indebtedness admitted by the garnishee is not entitled, under the statute, to dissolve the garnishment to. the extent of the indebtedness claimed.</p>

<p>Equitable petition. Before Judge Edwards. Douglas superior court. September 6, 1912.</p>

<p>Affidavit of illegality of execution. Before Judge Daniel. Pike superior court. October 9, 1912.</p>

<p>Action for damages. Before Judge James B. Park. Baldwin superior court. September 16, 1912.</p>

Equitable petition. Before Judge James B. Park. Jasper superior court. August 29, 1912. Greer and others filed their petition against C. H. Pope and G. H. Ballard Jr., the Montieello Telephone Company, and the Southern Bell Telephone and Telegraph Company.

<p>Eviction. Before Judge James B. Park. Baldwin superior court. December 2,1912.</p> <p>On January 20, 1912, G. M. Stembridge made an affidavit, under the statute, alleging, that H. E. Stanley was in possession as tenant of a described tract of land, the property of the 'affiant; •that the tenant failed to pay the rent; that he rented the premises for the year 1911, the term expiring on December 31; that the affiant had made demand for possession, and it had been refused; and that he made the affidavit in order that a warrant might be issued to remove Stanley from the premises. A warrant was issued. Stanley filed a counter-affidavit, alleging that he did not hold the premises, either by lease, rent, or otherwise, from the plaintiff. The ease was returned to the superior court for trial. The evidence showed, in brief, as follows: Mrs. Stanley was in possession of the properly, 'and rented it for the year 1911 to Stanley for a thousand pounds of lint-cotton. He went into possession about the first of January. In February Mrs. Stanley made a deed conveying the place to Stembridge, the plaintiff. • J. E. Stembridge, his brother, acting as his agent, agreed to rent the property to Stanley for the year for four hundred pounds of lintcotton, and took a note therefor payable to J. E. Stembridge or order. The payee entered on this a written assignment to G. M. Stembridge "for value,” and ■delivered it to the latter. Stanley remained in possession. When the note became due, he refused to pay it or to deliver possession at the end of the year. The only defense made by him was that he testified that after he had been in possession under his contract of rental from Mrs. Stanley about a month he heard that J. E. Stem-bridge had bought the place. .He said: “I then went to see Mr. Gene [J. E.] Stembridge and told him that I heard that he had bought the place upon which I was living, and that I would like to rent it from him. He then agreed to rent me the place for 400 lbs. of cotton, and I executed and delivered to him the rent note introduced by the plaintiff. A few days after this trade with Mr. Gene Stembridge I saw Mrs. Stanley and told her about the transaction between Mr. Stembridge and myself. Mrs. Stanley then told me that she had not sold the place and did not intend to sell it. Mrs. Stanley demanded the rent from me in the fall of 1911, and I paid her the thousand pounds that I had agreed to. I went into possession of the place on or about January 1st, 1911, as tenant of Mrs. Stanley, and did not turn the possession back to her before I rented from Mr. Stembridge. I am now in possession of the land, as I rented the place again from Mrs. Stanley for the year 1913.” The jury found for the plaintiff $73 as rent for 1911 and $139.93 as rent for 1913. The defendant moved for a new trial, which was refused, and he excepted.</p>

<p>Action for money had and received. Before Judge Hawkins. Wilkinson superior court. November 23, 1912.</p>

<p>A pledgor is not entitled to recover his pledge of his pledgee’s assignee, unless he pays the debt secured by the pledge, or tenders payment, or the facts excuse a tender. An allegation of an offer to pay is not the equivalent of a tender.</p>

<p>Appeal from condemnation. Before Judge Sheppard. Bryan superior court. November .4, 1912.</p>

<p>A husband made a voluntary deed to his wife. Subsequently the wife and husband jointly conveyed by deed the same land to certain persons, who were children and descendants of children of the husband by a former marriage, reserving a life-estate to the grantors. This deed recited a valuable consideration, and contained a covenant of warranty of title. The husband died, and the wife brought an action against the grantees to cancel the deed as being obtained by the fraud and coercion of her husband. She alleged that her husband’s estate was without representation. Pending the suit and before the appearance term an administrator was appointed on the estate of the husband, and the defendants pleaded his non-joinder in abatement of ■the suit: Held, that the representative of the deceased husband was a necessary party, and, upon refusal of the plaintiff to make him a party, the suit will be abated.</p>

<p>Complaint; from Tattnall superior court. Motion to dismiss.</p>

<p>Equitable petition. Before Judge Walker. Warren superior court. October 8, 1912.</p>

<p>Complaint. Before Judge Walker. Taliaferro superior court. November 25, 1912.</p>

<p>Petition for injunction. Before Judge Meadow. Elbert superior court. August 31, 1912.</p>

<p>Injunction. Before Judge Wright. Walker superior court. June 30, 1913.</p>

<p>Discharge in bail-trover. Before Judge Walker. Warren superior court. July 9, 1913.</p>

<p>Eviction. Before Judge Maddox. Eloyd superior court.' October 9, 191.2.</p> <p>On March 30, 1910, Eaper made an affidavit to obtain a. warrant to dispossess Hindman, alleging, that one Eaines had rented the' land to Hindman for the year 1907 for the sum of $30; that Eaines conveyed the land to the plaintiff, who is the owner thereof; that .Hindman had “failed to pay rent when due, or any part of rent for that year or since, and deponent desires possession of the same from the said George Hindman, and that the said George Hindman neglects, omits, and refuses to give possession of the said premises and tract of land described above to affiant.” Hindman filed a counter-affidavit alleging that “he is not holding possession over and beyond his term, that he does not hold the premises from the said Lewis Eaper or from any one [under] whom the said Lewis Eaper claims, either as alleged in said affidavit, or otherwise.” The plaintiff amended his affidavit by alleging as follows: Plaintiff bought the land from Eaines on November 23, 1907. Prior to the purchase, Eaines rented the property to Hindman for the year 1907, for the sum of $30. On November 25, 1907, Eaines swore out a distress warrant against the defendant for the rent of the premises for that year. On February 14, 1910, judgment was rendered in the justice’s court in favor of Eaines. Hindman appealed to a jury in that court, and on March 12, 1910, a verdict was rendered in favor of Eaines. This was an adjudication that Hindman was the tenant of Eaines, who was the predecessor in title of the plaintiff; and the defendant is estopped from denying that he is the tenant of plaintiff.</p> <p>On the trial, at the close of the evidence, the court directed a verdict in favor of the plaintiff for the premises in dispute, and for double rent for the years 1908, 1909, 1910, 1911, and 1913, amounting to $300. The defendant excepted.</p>

<p>Counsel appointed by the court, to represent the accused on trial for his life, were allowed only ten minutes to confer before entering upon the trial, and after such conference announced to the court that they “had not had the proper time to prepare the defense,” and for this reason they moved for a continuance to a subsequent adjourned term, which motion was overruled. The trial proceeded and terminated in a verdict of guilty, and the accused was sentenced to he hung. Held, that it was not a sound exercise of >the discretion of the court to deny the continuance without, at least, offering in lieu of it to postpone the trial for a reasonable time to afford counsel opportunity to prepare the defense.</p>

<p>Indictment for murder. Before Judge Worrill. Early superior court. July 8,1913.</p>

<p>Indictment for murder. Before Judge Rawlings. Jenkins superior court. June 11, 1913.</p>

<p>1. The charge on the law of justifiable homicide, though not technically accurate, did not qualify the law respecting the defense of one’s person against one who manifestly intends or endeavors by violence or surprise to commit a felony upon his person, as defined in the Penal Code, §§ 70, 71, by the principles contained in § 73 relating to the law of self-defense, and, under the facts of the case, was not cause for a new trial.</p> <p>2. When considered in connection with its context and the entire charge, the following excerpt: “When the defendant claims that he acted upon the fears of a reasonable man that his life or person was in danger at the hands of the deceased, and that he really acted under those fears, and not in a spirit of revenge, the defense does not have to be proved beyond a reasonable doubt,” is not cause for a new trial on the ground that it carries with it the implication that the burden is upon the defendant to prove self-defense.</p> <p>3. “The doctrine of reasonable fear does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.”</p> <p>4. The evidence authorized a charge.on the subject of conspiracy, and the instruction with reference thereto did not intimate an opinion as to the existence of a conspiracy between the defendant and the person indicted with him.</p> <p>5. One can not create an emergency which renders it necessary for another to defend himself, and then take advantage of the effort of such'’ other person to do so. This principle was applicable to the case, and the charge embodying it fairly conveyed it to the jury.</p> <p>6. Where a defendant in his statement narrates events, circumstances, and communications as tending to imply that the decedent contemplated immoral relations with his wife, and the argument of counsel for the defendant, as well as that of the prosecution, in large part dealt with the so-called “unwritten law,” it is not cause for a new trial that the court instructed the jury that though it would be justifiable for a husband to slay to prevent the debauchery of his wife, yet it would not be justifiable for him to kill in revenge of a past debauchery, or because the slayer had been told of improper and insulting advances made towards his wife, and that the jury should try the case according to the law given in charge by the court, and not according to what is commonly called “unwritten law,” notwithstanding there was no evidence of adultery of the wife with the’ decedent,</p> <p>7. Where the court charged the law of voluntary manslaughter as defined in the code, if the defendant desired an instruction applying any particular phase of voluntary manslaughter to the facts of the case, a timely and appropriate written request should have been submitted.</p> <p>8. The jury had been deliberating over night, and the next morning the judge requested them to be brought into court, announcing his purpose to recharge them, and on objection from defendant’s counsel the court delayed any instruction until the defendant, who was in jail, was brought into the court-room. The above occurrence did not amount to a proceeding in the trial of the case in thé absence of the defendant.</p> <p>9. Where the jury requests further instructions upon a particular phase of the case, the court in his discretion may recharge them in full, or only upon the point or points requested.</p> <p>10. The evidence authorized the verdict, and no sufficient ground for new trial is made to appear.</p>

<p>Indictment for murder. Before Judge Jones. Habersham superior court. August 22, 1913.</p>

<p>Petition for injunction. Before Judge Thomas. Tift superior court. July 1, 1913.</p>

Attachment. Before Judge Thomas. Brooks superior court. November 8, 1912. Christian sued out an attachment against Dale upon the grounds that he was absconding and that he was actually removing without the limits of Brooks county. The defendant traversed the grounds of the attachment; and upon the trial of the issue thus made'the jury found for the plaintiff. A motion for a new trial was overruled, and the defendant excepted.

<p>Indictment for murder. Before Judge Thomas. Lowndes superior court. July 14, 1913.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. December 26, 1912.</p>

<p>Petition for injunction. Before Judge Freeman. Troup superior- court. August 30, 1913.</p>

Petition for injunction. Before Judge Hammond. Burke superior court. September 29, 1913. Frances P. Carrington filed a petition against the Citizens Bank of Waynesboro, 'alleging as follows; She borrowed a certain sum of money, and executed her deed to a tract of land to secure the payment of the loan. The deed contained a power of sale, and gave authority to the grantee to become a purchaser at a sale made in pursuance of the power.

<p>The provision of the Civil Code, § 1187, relating to the power of the comptroller-general to issue execution against tax-collectors and the sureties on their bonds, where there is a failure to settle their accounts in terms of the law, is violative of the due-process clause of the constitution. Civil Code, § 6359.</p> <p>(a) It was erroneous to refuse to enjoin the enforcement of such an execution where the unconstitutionality of the law was urged as a basis for the injunction.</p> <p>(B) It is unnecessary to deal with other questions presented in the record.</p>

<p>■1. The common-law disqualification of a party to testify as a witness on -. the ground- of interest has bean expressly preserved by the Civil Code, § 5861, in eases where the action is instituted in consequence of adultery.</p> <p>2. Where 'S wife sues her husband for a'divorce on the grounds of cruel treatment and habitual intoxication, she is-a competent witness in her . o.wn behalf:. And; where to her suit, the husband files a cross-libel on the ground of adultery, the wife is competent to testify concerning the grounds of Her libel, but is incompetent to testify to any fact pertaining to the charge-of adultery made .in the■ cross-libel.</p>

Injunction. Before Judge Charlton. Chatham superior court. August 14, 1913.

<p>1. As a general rule, a receiver will not be appointed for mortgaged property upon the application of the mortgagees, in the absence of satisfactory proof of the inadequacy of the security and the insolvency of the mortgagor.</p> <p>2. Where a mortgage provides that the mortgagor shall keep the property insured for a given amount for the benefit of the mortgagee as his interest may appear, and that upon the failure of the mortgagor so to do the mortgagee may have the property insured for a like amount, and that all sums paid by the mortgagee shall become a part of the mortgage debt and be secured by the mortgage lien, a failure to insure by' the mortgagor will not ordinarily authorize the appointment of a receiver for the property.</p> <p>3. Under the facts of the case, the judge erred in appointing a receiver and granting an interlocutory injunction unless the mortgagor should,</p> <p>■ within a reasonable time, pay or cause to be paid the taxes, and have the property insured for a stated amount.</p>

Injunction. Before Judge Ellis. Fulton superior court. February 7, 1913.

<p>Injunction. Before Judge Mathews. Bibb superior court. August 1, 1913.</p> <p>On July 17, 1913, J. R. Howard and a number of others brought an equitable petition returnable to the superior court of Bibb county, against Ed Cassidy. The allegations of the petition are in effect as follows: Petitioners are citizens of Bibb county. At No. 210 Cotton Avenue in the city of Macon, said county, there is a place commonly known as a “blind tiger,” where spirituous, malt, and intoxicating liquors are sold in violation of law, and the same is a nuisance. “Said nuisance is carried on by Ed Cassidy, . the defendant.” The third paragraph of the petition is: “That said defendant and certain of his employees, to petitioners unknown, are now engaged and have been for more than-weeks just past engaged in the unlawful sale of spirituous, malt, and intoxicating liquors in said apartments, contrary to the laws of said State.” The fourth paragraph alleges: “That said Ed Cassidy now holds and owns an internal revenue license procured from the Department of Internal Eevenue of Atlanta, Georgia, on the-day of July, 1913.” Cassidy and his agents or employees, who are aiding and abetting him in the unlawful sale of spirituous, malt, and intoxicating liquors, are guilty of maintaining and running a “blind tiger,” and the same is a continuing nuisance, and subject to abatement by the mandate of the court. One of the prayers of the petition is, “that the said Ed Cassidy, his agents and employees, be enjoined from further disposing of said intoxicating, malt, and spirituous liquors and beers as now handled by them in violation of said prohibition law, and that said apartments heretofore named be declared a nuisance and abated by law; and that said defendant, his agents and employees, be enjoined from keeping and maintaining a buffet or a place by any other name, or without a name, for the illegal sale of such liquors in such place as designated in the foregoing petition or elsewhere.” The judge of the Macon circuit, upon presentation of the petition, ordered it filed and served, and further ordered that the defendant Cassidy, and all other persons, be restrained from selling, bartering, or exchanging, any spirituous, malt, or intoxicating liquors upon the premises designated in the petition, until the further order of the court; and that the defendant show cause on August 1, by ten o’clock a. m., why the restraining order should not be continued. On July 26, counsel for the defendant presented to the judge a written petition in which it was recited that the defendant had been called on to show cause, on the first day of August, why he should not be enjoined from keeping and maintaining what is known as 'a “blind tiger,” and that no provision had been made for submission and exchange of affidavits by counsel in the case; and praying that “counsel for the plaintiffs be required to submit to counsel for defendant, as far as possible, the affidavits of witnesses intended to be used on said hearing, three days before the time fixed for hearing said application for temporary injunction, and that counsel for defendant have two days in which to file affidavits in reply.” Upon such petition the judge passed the following order: “The foregoing petition read and considered. Ordered by the court that the same be granted, and that the affidavits to be used in said case be served as prayed. This 26th day of July, 1913.” This order was filed in the office of the clerk of the superior court on the day it was granted, and a copy thereof served by a deputy sheriff on counsel for the plaintiffs on July 28.</p> <p>The case came on for a hearing on August 1, when the plaintiffs were allowed to amend their petition by alleging that the defendant Cassidy holds a so-called "near-beer” license and receipt from the ordinary of Bibb county for the sale of imitations of and substitutes for beer, ale, wine, whisky and other spirituous or malt liquors, by which, however, he is not authorized to sell or keep for sale any intoxicating, spirituous, or malt liquors on the premises referred to. Additional relief is prayed as follows: "An order revoking any license which said defendant may hold, and declaring him disqualified from holding any license to sell any substitute for beer, ale, wine, whisky or other. alcoholic, spirituous, or malt liquors, and enjoining him or any one of his associates, employees, or agents found upon said premises, or assisting in carrying on said nuisance, from holding such license or in any wise engaging in said business, and further perpetually enj'oining said parties and any or all other person or persons from maintaining said business under said license or any license in said premises or place where the State law as to the sale of intoxicating liquors may be violated.” The amendment contains also a prayer for general relief. The defendant, on the hearing, presented a demurrer to the petition, on the ground that it sets forth no cause of action and is without equity, and demurred “specially” to each paragraph of the petition "on the ground that the facts set forth do not constitute a cause.of action, and are not sufficient to give the court jurisdiction to grant the relief prayed for in the bill.” In his answer the defendant admits that he is engaged in business at the place designated in the petition, but denies that it is commonly known as a "blind tiger” and denies further that his place of. business is a nuisance. He says that he “can not admit or deny the allegations' contained in the third paragraph of said petition, for want of sufficient information.” Answering paragraph four of the petition, he admits that he holds a United States internal revenue license as a retail liquor dealer at the place designated in the petition, and says that he carries on a “near-b.eer” saloon at such place under a license from the State, .and one from the City of Macon, for the year 1913, for each of which he has paid the sum of $300; and alleges “that the United States Government required him to take out said license for the purpose of selling beer, cider, and other non-intoxicating drinks.” He denies that he is maintaining and running a “blind tiger” and that it is a continuing nuisance and subject to abatement as plaintiffs allege.</p> <p>At the interlocutory hearing a number of witnesses were called to testify orally in behalf of the plaintiffs. The defendant objected to the witnesses testifying orally, on the ground “that such procedure was in violation of the law . . contained in section 5918 of the Code, . . and was contrary to the established practice of the courts in the hearing of applications for injunction in like cases.” The objection was overruled. After this ruling, counsel for the defendant announced that he was not ready for a hearing, and moved for a continuance on the grounds, that the judge had passed the order of July 26, requiring the service of affidavits as therein set out, and neither the defendant nor his counsel had been served with any affidavits as required by the order, and no affidavits had been filed; and that, “not having been served with said affidavits as required by said order, defendant had not prepared any affidavits in reply, and was, therefore, not ready for trial.” The motion for continuance was overruled, and the defendant excepted. The plaintiffs introduced four witnesses who testified respectively as follows:</p> <p>Allen: That on July 14, 1913, he bought a half pint of whisky from the defendant, Cassidy, at his place of business,' 210 Cotton avenue, and paid him twenty-five cents for same.</p> <p>Elkins: “I run the Macon Tea & Coffee Co., next door to Mr. Ed Cassidy’s place. I know about some whisky having been sold in that place. I have seen whisky sold there on numerous occasions. I have seen whisky sold to white men and darkies a good many times. It is a saloon where white men and negro men and negro women congregate. The women congregate in the rear. The crowd that congregates there is pretty boisterous, and they are drunk sometimes. . . I have purchased whisky there. I purchased some there several weeks ago, and paid seventy-five cents a pint for it. . . I presume I have seen a dozen sales of whisky made at his place. . . I think I have bought it a half dozen times at intervals since last fall. I did not know the names of the parties to whom I saw whisky sold. I knew it was whisky by seeing it; it was labeled whisky, and looked like whisky; and I say it was whisky, like I would say that was a book, from the external appearance.”</p> <p>Willingham: “I am acquainted with the location of Mr. Cassidy’s place; of my own knowledge, I know of whisky having been sold there. Almost every time I have been in the rear of my warehouse, I have seen negro men and women bring bottles out of there. My warehouse is about one hundred feet in the rear of Cassidy’s, place, in full view of it. The bottles negroes would bring out of Cassidy’s store had colored liquid in them like this [referring to a bottle of whisky which Allen had testified he bought from Cassidy]. I presume I have seen bottles labeled whisky come out of his store a hundred times, passing through the alley, from Cherry street by the rear of my warehouse. Standing in my warehouse I could see the people coming out of his store. I presume I went through the alley on an average of twice a day.”</p> <p>Williams: “I am deputy sheriff, and served this paper. When I went to Cassidy’s place I found three barrels, three drums, and about twenty-five half-pint bottles of whisky. The half pints were under the counter, and the barrels in a room adjacent to the store; there was a stairway to the barrels from the store; it did not connect with the place of business, but over the place of business there was a way to get to the barrels from his place of business.”</p> <p>The defendant introduced no evidence. The judge granted the following order: “After hearing evidence and argument on the within petition, it is considered, ordered, and adjudged by the court that the place described in the within petition, 210 Cotton avenue, Macon, Ga., operated by the defendant, Ed Cassidy, is a nuisance and is adjudged such, and is hereby enjoined as such, and the defendant, Ed Cassidy, is and all other person or persons be and the same are hereby enjoined from carrying on said nuisance on said premises, and the said defendant, Ed Cassidy, and all other persons acting for him are hereby enjoined and restrained from selling any spirituous liquors, malt liquors, or intoxicating liquors upon said premises; and the evidence showing that the said defendant, Ed Cassidy, is holder of a near-beer license from the ordinary of Bibb county, Georgia, for said place, and that said defendant under color of said license has sold, furnished, and kept at said place of business liquors prohibited by law, it is further ordered and adjudged that he is disqualified from holding any such license and from being in the employment of any person holding such license, and he is hereby restrained and enjoined, until further order of the court, from holding and operating under said license, or under any other license, at said place or any other place in the State of Georgia, and from being in the employment of any person holding any such license in the State of Georgia.”</p> <p>The defendant sued out a bill of exceptions, in which error is assigned upon the rulings of the judge in permitting the witnesses for the plaintiffs to testify orally, and in refusing a continuance; and upon the order granted.</p>

<p>1. The election for members of Congress and presidential electors, required by law to be held on Tuesday after the first Monday in November, is a general election within the meaning of article 13, section 1, paragraph 1, of the constitution of this State.</p> <p>2. The constitutional provision (art. 11, sec. 1, par. 2) limiting the number of counties may be amended by a proposal to create an additional county, to be ratified by the people in the manner provided in the constitution, without having previously submitted an amendment for enlarging the number of the counties.</p> <p>3. There was no error in denying a discharge in this case under the writ of habeas corpus.</p>

<p>Eule. Before Judge Bell. Eulton superior court. October 2, 1912.</p> <p>A fi. fa. issued upon the foreclosure of a chattel mortgage, and was levied by a deputy sheriff bn two mules covered by the mortgage. After making this levy the officer allowed the property to remain in the mortgagor’s possession. The entry of levy recited that further action in the premises was “stayed by and with the consent of the plaintiff, pending a settlement of the matter.” Two days afterward the mortgagee, Coryell, paid the accrued costs, and signed an entry on the fi. fa., acknowledging receipt of $45 as a credit thereon, and stating that “the sheriff is authorized to stay matter until further orders.” Five days thereafter a constable levied an execution from a justice’s court on one of the two mules, took possession of it, advertised, and sold it. The deputy sheriff knew of these proceedings, demanded a return of the mule by the constable, and placed the mortgage fi. fa. in the hands of the constable for the purpose of claiming the fund realized from the sale.</p> <p>Williams (who alleged that he had bought one of the mules from the mortgagor, and had been compelled, for his own protection, to take a transfer of the mortgage fi. fa.) brought a petition praying for a rule absolute requiring the deputy sheriff to pay over to him the value of the mule sold by the constable. The deputy sheriff answered, that all the foregoing facts were fully known, as the events occurred, to both Coryell and to Williams, who accepted the transfer of the mortgage fi. fa. after having such knowledge; and that if the money that arose from the sale of the mule by the constable was not credited on the mortgage fi. fa., it was because Coryell and Williams failed, neglected, and refused to allow the money to be so applied. The court refused, on motion, to strike the answer, and denied a rule absolute. Williams excepted.</p>

<p>Action for damages. Before Judge Pendleton. Eulton superior court. January 25, 1913.</p>

<p>Habeas corpus. Before Judge Ellis. Pulton superior court. March 3, 1913.</p>