Volume 141 — Georgia Reports

<p>1. Where a plea in abatement is based upon the ground that it appears upon the face of the indictment that one not qualified to act as a.grand juror did participate in finding and returning the bill, it is competent to show that the writing of the name of such grand juror in the indictment was a clerical error upon the part of the clerk of that: body, who wrote it for the name of one who was qualified to act as a grand juror and who did in fact act after having been duly drawn as a grand juror.</p> <p>2. It was not error for the court to permit a witness, over objection, to testify that he was a member of the grand jury that returned a- bill of indictment, his name appearing in the bill as one of the grand ¡jürors finding and returning the same; nor was it error to permit the ¡.same witness to testify that a certain other grand juror whose name appeared in the face of the bill of indictment served as a member of the grand jury.</p> <p>3. It was competent for the witness just referred to to testify that one whose name appears in the face of the bill of indictment as a i grand juror did not serve. Such fact could be proved by parol evidence and did not vary the indictment nor the minutes of the court. • -u</p> <p>4. The court did not err in permitting a witness offered by the State::to testify that the accused, upon being questioned as to a certain pistol which was subsequently introduced in evidence and which it wfj.^ material to identify, had said, “Take this note and give it to my wife, and she will give you the pistol;” and that upon the delivery of this'fióte to the wife she went to where the pistol was lying upon the ground among weeds about twenty steps from the house of the accused, .picked up the pistol, and handed it to the witness. ' This was not in the nature of hearsay testimony, nor tantamount to introducing the wife, who was incompetent to testify as a witness either for or against the husband.</p> <p>(«) The evidence just referred tg was not rendered inadmissible by the fact that the witness testified further, “that, at the time and.on the occasion when he got the pistol in question from the hand of the wife of movant, he, the witness, made said wife bring the pistol to him; that he, the witness, told the said wife to go and get the pistol for him, and that she said she didn’t have it, but that he then made her bring it to him; that witness saw said wife when she took said pistol up out of the weeds; that under the direction of witness said wife went out in the weeds and picked up the pistol and brought it to him,” no objection being presented on the ground that either the accused or his wife did not act freely and voluntarily.</p> <p>5. The court did not err in charging the jury as follows: “If you should find in this case, gentlemen, under the evidence and the law I have given you in charge, that the defendant, Jim Bexley, is guilty of murder under the evidence, that he was the actor or absolute perpetrator of the crime, why then, that would end your deliberations, and you should return a verdict accordingly; but you may inquire whether under the evidence, if he is not the actor or absolute perpetrator of the crime, as to whether or not under the evidence he is guilty as a principal in the second degree.”</p> <p>6. The court charged the jury that if they should find that “Jim Bexley was present participating in the killing and murder of Amos' McLaughlin, and that he was aiding and abetting Idella McLaughlin to commit the crime, why then, gentlemen, under such circumstances as these, Jim Bexley would be guilty as principal in the second degree. But he denies, gentlemen, that he is guilty as principal in the first or second degree either. In criminal law, gentlemen, the word ‘abet’ means to encourage, to set another on to commit a crime; to abet another to commit a crime is to command, to procure," or to counsel him to do it, and presence or participation are necessary to constitute one an abettor.” Having thus explained what facts would constitute one a principal guilty of murder in the second degree, and having explained, the meaning of-the word “abet” as used in its definition, the court did not err in adding: “Even if one was present, gentlemen, at the commission of a crime and mentally approving or consenting to same, yet if that consent was unknown to the person committing the crime, the one so mentally approving could not be held guilty as a principal.”</p> <p>7. There was no merit in the ground of the motion based upon -the alleged newly discovered evidence.</p> <p>8. The evidence authorized the verdict.</p>

<p>Indictment for murder. Before Judge Mathews. Houston superior court. June 20, 1913.</p>

<p>Indictment for murder. Before Judge Worrill. Terrell superior court. July 12, 1913.</p>

<p>Indictment for murder. Before Judge Conyers. Glynn superior court. July 19, 1913.</p>

<p>1. The discretion of a trial judge, who passes upon the alleged prejudice and bias of a juror from conflicting evidence on a motion .for new trial, will not be interfered with unless it is manifestly abused. No abuse’ of discretion appears in this case.</p> <p>2. It is not cause for a new trial that pending deliberation by the jury on a trial for murder they were placed in a room adjoining the rear of the court-room, where' the walls were not plastered but were covered with laths through the spaces of which could be seen persons in the, jury-room and the court-room, where it appears from the record that the two attending bailiffs were instructed by the court not to allow any communication with the jury by any one, which order was strictly’ obeyed, and no communication was had with any one by the jury,</p> <p>3. Motions for new trial, based on newly discovered evidence, are addressed largely to the discretion of the trial judge; and this court will not reverse his decision refusing a new trial on such ground, unless it is abused. No such abuse of discretion appears in this.ease.</p> <p>4. It is not error to refuse a written request to charge, where the charge requested is substantially given in the general charge.</p> <p>5. It was not error for the court to refuse to give in ehargé to the jury the requested instruction set forth in the fifth division of the opinion. '</p> <p>6. Eor the reasons stated in the sixth division of the opinion, it was rfot error to refuse to instruct the jury: “Where the husband is on trial for the offense of murder, his wife is an incompetent witness, and can not testify in his favor, notwithstanding the fact that other witnesses are allowed to testify to acts and sayings of the wife of the defendant on trial.”</p> <p>7. On the trial of one accused of murder, it was not error to refuse to allow counsel for the defendant to ask a witness, as original evidence, “Is it true that Mr. I. B. Hall [the defendant] went over to Mr. Bennett’s and ’phoned down for the sheriff?”</p> <p>8. It was not error for the court to direct the witness to answer the questions set out in the 8th division of the opinion.</p> <p>9. It is the duty of the judge to suppress disorder during the trial of the case, and, where necessary, to rebuke and punish those causing it, on his own motion. But where in such a case the court rebuked and punished the person or persons causing the impropriety, and no objection was made to the disorder, pending the trial, by the defendant or his counsel, and no motion was made tó declare a mistrial by reason thereof, and no ruling was invoked from the court with reference thereto, it is not cause for a new trial that the court did not of his~6tvn motion' declare a mistrial.</p> <p>10. The verdict is supported by the evidence.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. December 4, 1912.</p>

<p>Indictment for murder. Before Judge Frank Park. Decatur superior court. August 28,' 1913'. , ^</p>

<p>Action for damages. Before Judge Morris. Gilmer superior court. October ’6, 1912.</p>

<p>Equitable petition. Before.Judge Sheppard. Tattnall superior court. August 20, 1912.</p>

<p>Indictment for murder. Before Judge Worrill. Terrell superior court. July 12, 1913.</p>

<p>Indictment for murder. Before Judge Parker. Ware superior court. August 16, 1913.</p>

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

<p>Petition for mandamus. Before Judge Gilbert. Muscogee superior court. July 10, 1913.</p>

<p>' Motion to set aside judgment. Before Judge Maddox. Walker superior court. November 7, 1912.</p>

<p>Complaint for land. Before Judge James B. Park. Jones su-. perior court. October 22, 1912..</p> <p>Mrs. Emmie H. Gordon brought suit against A. L. Harris, alleging that on July 5, 1910, she executed to her husband, G. W. Gordon, the following conveyance: "This agreement, made and entered into this the- 5th day of July in the year nineteen hundred and ten, by and between Emmie H. Gordon, wife, and George W. Gordon, the husband, of the County of Jones and State of Georgia, as follows: That the said above parties now being in a state of separation, and desiring to make some provisions in lieu of alinumy, both temporary and permanent, for said wife named above, whereby she releases and discharges for the consideration aforesaid from all liability, present, past, or future, for any support, and alimony, or counsel fees for her in the event of a suit by her, the said Emmie H. Gordon, for a divorce, etc.: Now she, the said Emmie H. Gordon, hereby acknowledges the receipt, to her in cash this day paid by the said G. W. Gordon, of the snm of six hundred dollars ($600.00) to be paid and is paid to her in lieu of said support, in future, alimony both temporary and permanent, fees of counsel, etc.; and said cash shall be a complete defense to any suit for the same, or any action of any kind, either through a proceeding for divorce or otherwise. That it is further agreed and understood that no agreement has' been made as to the disposition of the two children of said parties, ages 18 months and -seven years, respectively, both boys; the custody and control of the same to be left to the decision of the courts, and the support of the same to be hereafter decided. That the said Emmie H. Gordon, holding the title to the house and lot known as the Bradley dwelling-house, the storehouse and lot, and the blacksmith-shop lot, has sold the same to Sallie L. Winters, the purpose of said deed to the latter to make a gift to said house and lot and property mentioned to her said husband, and in no event is a sale to him, for the purpose of placing said property where the said G. W. Gordon can raise the money whereby to pay the above $600.00 paid to me; the deed and title to said property was made to Sallie L. Winters, who is loaning G. W. Gordon thereon the necessary amount to discharge this agreement, but there is no consideration passing as between' said husband and wife as to said property, but the amount is the amount agreed upon as a settlement as above directed. This is further done by deed to Sallie L. Winters to protect the latter and to enable the making of said páyment; and because in fact it is understood that the title as held by said Emmie H. Gordon was made to her by J. W. Bradley by deed in 1905, the said Geo. W. Gordon having paid all of the purchase-money for said property; and she desires, a separation now existing between said parties and a complete separation being contemplated, to make said title back to her said husband, and made as before mentioned to the' said Sallie L. Winters, not as a loan by her, but to enable the raising of the said sum of $600.00, and is to be construed as a gift in fact to said property to said Geo. W. Gordon, but the title to same is made to Sallie L. Winters, and on payment of the amount borrowed by G. W. Gordon from her she is directed to make title deeds to said G. W. Gordon, and to be binding on me as if made by me without any consideration whatever, and I the said Emmie H. Gordon in no sense is security or liable thereon for any amount, but the consideration as mentioned is as stated in lieu of all support, alimony, etc.; and she signs this instrument, and signifies her entire consent to said settlement, which is made voluntarily by her without any force, coercion, or otherwise.” It was alleged, that the effect of this conveyance was a sale of her separate estate to her husband, and was void for the reason that it was not approved by the superior court of the county of her domicile; that pursuant to that agreement she executed to Sallie L. Winters a deed to secure a loan which her husband had arranged to procure from Sallie L. Winters to pay the alimony which he contracted to pay; that her husband sold the premises to defendant Harris, who assumed 'and paid off the Winters loan; that Mrs. Winters was a party to the original transaction, and that Harris had knowledge of all the faéts at the time of his purchase. She prayed to recover the land and mesne profits, unless the court should adjudge that Harris should be repaid the $600 which the plaintiff acknowledged to have received from Mrs. Winters; in which event she asked that the property be sold, that Harris be reimbursed, and that the balance of the money arising from the sale be paid to her. The petition was dismissed on demurrer, and the plaintiff excepted.</p>

<p>Complaint for land. Before Judge Gilbert. Taylor superior court. December 30, 1912.</p>

<p>Complaint. Before Judge Worrill. Terrell superior court. No- > vember 27, 1912.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. November 7, 1912.</p>

<p>Petition for specific performance. Before Judge Tbomas. Berrien superior court. September 29, 1912.</p>

<p>Complaint. Before Judge Boan. Clayton superior court. November 30, 1912.</p>

<p>It was error to dismiss the petition on general demurrer.</p> <p>Action of deceit. Before Judge Meadow. Madison superior court. -September 3, 1912.</p>

Action for damages. Before Judge Fite. Whitfield superior court. January 17, 1913. J. and J. C. Black sued the Southern Railway Company to recover damages for the loss of the contents of a certain warehouse situated in close proximity to the defendant’s right of way in the city of Dalton, by fire alleged to have been negligently set out by the defendant. On the trial the plaintiffs obtained a verdict for the value of the property sued for.

<p>1. ’ Allegations that a seller desired' to obtain the exclusive patronage of a ■ ' purchaser of his products, and informed the latter, or his predecessor in business, that the seller intended to adopt “a liberal plan of profit-sharing” with the purchaser and such other patrons as should in thcfuture purchase exclusively from him certain articles of merchandise, do not set forth a contract to be continued for any certain time or for any certain amount of profits, so as to fúrnish a basis for a recovery for a breach thereof.</p> <p>2. Allegations that each year for several years the seller notified the purchaser that a certain amount (varying in different years) would be paid to the purchaser as its share of profits for such year, which was done until a certain year, when no amount was stated as profit to be paid to the purchaser, and none was paid, although the purchaser paid a higher price for the goods of the seller than it would have been necessary to pay for like articles from competitors of the seller, do not serve to show any contract for the breach of which damages can be recovered.</p> <p>3. General allegations to the effect that the conduct of the seller, stated in the preceding headnotes, led the buyer (with intention so to do) to believe that the profit-sharing arrangement would be continued in future annually, and that the buyer would receive as a share of profits at least as much as the seller allowed it for the last year for which payment was made, do not set out any facts showing a contract and breach.</p> <p>4. Whether or not a plea of set-off filed by a' defendant was properly stricken, yet if the amount claimed therein was in fact conceded and allowed to him in rendering judgment, the ruling furnishes no ground for a reversal.</p> <p>5. The defendant in error having obtained an. order from the presiding judge requiring the clerk to send up certain parts of the record in addition to those specified by the plaintiff in error, and such additional record being superfluous and unnecessary, the cost of bringing it to this •court is taxed against the defendant in error.</p>

<p>Complaint. Before Judge George. Crisp superior court. November 25, 1912.</p>

<p>Complaint; from Worth superior court.</p>

<p>Claim. Before Judge Thomas. Berrien superior court. November 20, 1912.</p>

<p>Action for damages. Before Judge Frank Park. Decatur superior court. January 20, 1913.</p>

<p>Equitable petition. Before Judge Thomas. Berrien superior court. September 20, 1912.</p>

Complaint. Before Judge Pendleton. Fulton superior court. October 4, 1912. The Southern Lime Manufacturing Company, hereinafter referred to as the Lime Company, was a corporation of Polk county, Georgia. Randall, the defendant, was a stockholder and the president of that corporation. The Southern Coal and Coke Company, hereinafter called the Coal Company, had been shipping coal to the Lime Company, and had 'a claim against it for unpaid bills.

Action for damages. Before Judge Mathew's. Houston superior court. October 8, 1912. The action was by Mrs. Annie Wellons Wallace against the Central of Georgia Railway Company, to recover .damages for delay in her transportation as a passenger from Perry to Macon, Georgia. She alleged that the railway company operated a branch line from Perry to Port Valley, where connection was made with its line to Macon.

<p>Indictment for murder. Before Judge Conyers. Jeff Davis superior court. June 21, 1913. ;</p>

<p>Petition for injunction. Before Judge Freeman. Heard superior court. June 23, 1913. , '</p>

<p>Constitutional question; from Court of Appeals (4961).</p> <p>The Court of Appeals has certified to the Supreme Court the following questions: "Is section 5 of the act of the General Assembly approved August 17, 1908 (Georgia Laws 1908, p. 112), which act is entitled ‘An act to amend an act establishing the city court of Ashburn, in the County of Turner, found on page 150 Acts 1906 of the General Assembly, approved August 21, 1906/ and which section is in the following language: ‘Be it further enacted by the authority aforesaid, that in all civil cases where the principal sum involved does not exceed two hundred dollars, and in all eases where a suit is filed upon an unconditional contract in writing, and where no defense is filed at the appearance term, the plaintiff shall be entitled to make out his ease and have judg-' ment thereon at the first term, or have default judgment at said term of court/ unconstitutional for any of the following reasons': (1). Because in conflict with provisions of the general law relating to such matters, as found in Civil Code, of 1910, sections 5653-5662 inclusive, and therefore repugnant to article 1, section 4, paragraph 1, of the constitution of this State, which provides that ‘no special law shall be enacted in any case for which provision has been made by an existing general law.’ • (2) Because violative of article 3, section 7, paragraph 8, of the constitution of this State, in that the said act of 1908 contains matter different from what is expressed in the title thereof. (3) Because violative of article 3, section 7,; paragraph 17, of the constitution of this State, in that the said act of 1908 undertakes to amend the act establishing the City court of Ashburn (Acts 1906, p. 150) by mere reference to- its title, and without distinctly describing the law to be amended and the alterations to be made ?”</p>

<p>Injunction. Before Judge Fite. Gordon superior court. April 18, 1913.</p>

<p>Complaint for land. Before Judge Worrill. Early superior' court. October 10, 1912.</p>

<p>Claim. Before Judge Worrill. Miller superior court. October 31, 1912.</p>

<p>Complaint for land. Before Judge Thomas. Brooks superior court. September 14, 1913.</p>

<p>Processioning. Before Judge Hawkins. Laurens superior court. December 31, 1912.</p>

<p>1. Prior to 1885 (Acts 1884-5, p. 68) a sheriff was not authorized to levy an execution issued from a justice’s court; and if a sheriff levied such an execution upon land and sold the same by virtue thereof, the sale was invalid.</p> <p>(a) Erom the statement in the record it is not clear whether the sheriff made the levy or not; but as the objection was raised that he did so, and such objection was sustained and the sheriff’s deed excluded from evidence, and it seems to have been conceded that the levy was made by the sheriff, this court can not hold that such ruling was erroneous. -</p> <p>(b) The sheriff’s deed appears to have been offered as title, and not as color of title. Moreover, it did not purport to convey title to any one who took possession thereunder. Color of title to one person who never takes possession, but subsequently conveys to another without referring to the former conveyance, is not color of title to such second person. The conveyance from his grantor is his color of title.</p> <p>(c) Notice of the estoppel dealt with in the next headnote not having been shown so as to affect the defendant’s testator, the sheriff’s deed was not admissible in that connection.</p> <p>2. In an action to recover land, it appeared that the title was originally held by a man and his wife. Under an execution against them there was a void sheriff’s sale. The husband negotiated with the purchaser for the purpose of having the latter buy the land and allowing the husband or wife to redeem it. Later, the purchaser at the sheriff’s sale made a deed to the wife, as trustee for her children then living, and those who might be living at her death, reciting a consideration of love and affection for the grantee’s children, and also ten dollars paid. The husband attested this deed. The purchaser at the sheriff’s sale never took possession, but the husband and wife retained it. Held, that an estoppel arose against the husband and wife in favor of the beneficiaries of the trust deed, preventing them from denying the trust.</p> <p>3. Such estoppel would not operate against a subsequent grantee from the husband and wife as individuals, if he were a bona fide purchaser for value and without notice.</p> <p>4. The record of the deed to the wife as trustee for her children, made by the purchaser at the sheriff’s sale, who was not shown to have any claim of title except the invalid and unrecorded sheriff’s deed, did not operate as constructive notice to a subsequent purchaser from the husband and wife as individuals, they having held a good title prior to the sheriff’s sale, and having remained in possession thereafter.</p> <p>5. Adverse possession of land is notice of whatever facts in reference to the title would be developed by inquiry of the person in possession, reasonably prosecuted, the presumption being that inquiry of such person would disclose how and under what right he holds possession, and therefore lead to the discovery of the real adverse holder, whether himself or another for or under whom he holds possession; and in the absence of such inquiry, the presumption is that, had it been made, the right, title, or interest under which-the possessor held would have been disclosed.</p> <p>(a). If husband and wife are in possession of land, the prima facie presumption is that the,possession is that of the husband.</p> <p>(5) The purchaser at the sale from the husband and wife was not the defendant in the action to recover the land, but such defendant was the executor of another, and the testator was not shown to have been charged with notice or put upon inquiry. As the plaintiffs failed to show a perfect title, and were compelled to rely upon estoppel in pais, the burden of showing that the defendant was affected by it rested upon them.</p> <p>(e) The defendant was not shown to claim under the trust deed, and the rule of estoppel as against privies in estate, did not apply to him, so as to work an estoppel regardless of the question of notice.</p> <p>(d) A- case of prescriptive title in favor of the plaintiffs was not made out.</p> <p>6. There was no error in granting a nonsuit.</p>

<p>1. The court did not err in allowing the amendment to the petition, alleging that the agents and servants of the defendant had employed greater force than was necessary in ejecting him from the train, over the objection that such amendment set forth a new cause of action.</p> <p>2, The defense in this ease consisted entirely of a denial of the allegations contained in the petition "upon which the plaintiff based his right to recover; and it was error for the court to charge the jury as to the shifting of the burden of proof, whereby the onus would he upon the defendant to establish its defense by a preponderance of the evidence. The burden of proof, under the pleadings and the testimony introduced, was upon the plaintiff, and it was a question for. the jury to decide, when the evidence of both parties had been submitted, whether the plaintiff had established the essential allegations of the petition by a preponderance of the evidence; in which case only would he have been entitled to recover.</p>

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

<p>Exceptions to auditor’s report. Before Judge Boan. Newton superior court. September 20, 1912.</p>

<p>Equitable petition. Before Judge George. Ben Hill superior court. December 21, 1912.</p> <p>E. W. Byman was a practicing lawyer residing in Fitzgerald, Georgia, at the time of his death. He left a will, by the fifth item of which he bequeathed to his wife, Lula. B. Byman, several specified properties, and also his “law business.” By the sixth item the' testator bequeathed to his daughter, Lula M. Byman, all of his “office furniture, fixtures and furnishings, including typewriter” now in his office; also $3,000 to be paid out of his life insurance,, to include such part of his insurance as may be payable directly to her. The ninth and tenth items directed that the money bequeathed to the daughter, Lula M. Byman, be held by the executor and loaned on real-estate security, at a designated rate of interest, for a period of from five to ten years in the discretion of the executor, and that the interest only should be paid to the daughter so' long as the money should be loaned. Shortly after the death of the testator, and several months after the daughter attained majority, the widow proposed to sell to the daughter the “law business” except the fees earned by the testator before his death, and which were then due to his estate. A written contract was entered into between them, whereby the widow agreed to sell to the daughter the “law business” of the testator, “consisting of — first, various claims placed in the hands of said E. W. Byman for collection and. now in the law office formerly occupied by said E. W. Byman; second, the various causes now pending in the courts of this State in which the said E. W. Byman was representing as attorney one or the other parties so represented by said E. W. Byman, who have not, since his death, employed another attorney or attorneys to represent them in such causes; third, the good will of such business. Tt is expressly understood and agreed that this conveyance carries, with it all of the present interest of the party of the first partan said business as beneficiary under said will; but does not embrace or include any fees which have been earned, but not collected, by the said E. W. Byman prior to his death, nor any choses in action of any kind held by or belonging to said E. W. Bvman in connection with his said business at the time of his death. r>or anv dm'"-- or pending cause wherein the party of the first part has already made arrangements with another attorney or attorneys to handle the same. It is further expressly understood and agreed that this conveyance is made subject to the consent and approval of the various clients of the said E. W. Eyman whose interests were represented by him as attorney in the various matters and things embraced in this conveyance.” The consideration named in the contract was $2,500, to be evidenced by the promissory note of the daughter, payable five years from the date of the contract, with interest at the rate of eight per cent, per annum, to be paid annually. The contract also contained a recital that the executor was requested to pay over to the widow so much of the $3,000 bequeathed to the daughter in the will of the testator as may be necessary to pay off the note. In addition to the contract, the daughter also-executed her note conformably to the terms of the contract; the transaction occurring on or about March 4, 1908. The will appointed Lula B. Eyman as executrix and L. Kennedy as executor.The power of investment of the cash legacy to Lula M. Eyman was conferred exclusively upon L. Kennedy. In 1911 Lula M. Eyman instituted an action against L. Kennedy and Lula B- Eyman individually and as executors, seeking to cancel the contract, as well as the note given in pursuance thereof; to enjoin the pajment or transfer of the note; and to recover all sums that may have been paid over to Lula B. Eyman on the strength .of the contract. One ground relied on for the relief sought was that the thing the widow attempted to sell was not a subject-matter of sale, and that the note and obligations imposed upon Lula M. Eyman by the terms of the contract were without consideration.</p>

<p>Injunction. Before Judge Frank Park. Calhoun superior court. August 22, 1913.</p>

<p>Injunction. Before Judge Pendleton. Fulton superior court. September 24, 1913.</p>

<p>■1. A social club paying the specific tax provided in the Civil Code (1910), •§ 933, for keeping or permitting to be kept intoxicating or malt liquors in a room where its members assemble or frequent, is not authorized to sell such liquors to its members or others.</p> <p>(«) Under the evidence the court was authorized to find, for the purposes of an interlocutory injunction, that the club (a corporation) and its manager were engaged in the illegal sale of intoxicating liquor, and die not abuse its discretion in enjoining the further sale of intoxicating liquors on the premises until the final hearing in a proceeding brought under the blind-tiger-abatement act contained in the Civil Code (1910), § 5335.</p> <p>2. So much of the order as adjudicated the club to be a nuisance and abated as such is tantamount to a final judgment, which can not be rendered on an interlocutory hearing; and it is directed that this adjudication be stricken from the order.</p>

<p>1. Where there are two conflicting sections in a code, both derived from legislative acts, and the code has been adopted by an act of the legisla- . ture, that section prevails which is derived from. the later act, such being considered the last expression of the lawmaking power on the subject.</p> <p>2. Accordingly, where an act of the legislature declared that a man over sixty years of age was disqualified to perform jury service, ajid a later act declared that one of that age was exempt from jury duty if he should, claim the exemption, but that he was not disqualified should he choose to serve, and both acts were subsequently embodied in a code which was adopted by the General Assembly in one and the same act as an entire body of the laws of the State, the later act will govern. The fact that a petit juror in a criminal case is over sixty years of age is not ground of challenge for cause.</p>

<p>Action for breach of contract. Before Judge Pendleton. Fulton superior court. December 14, 1912.</p>

<p>1. Generally it is not a part of the duty of the employees of a railway company in charge of a passenger-train to physically assist passengers to alight therefrom. If special circumstances are relied on to raise such . a duty, they should be alleged and proved.</p> <p>(a) In a suit by a female passenger against a railroad company, based on the ground that while she was leaving the train at her destination the conductor signaled the engineer to proceed, a general allegation that the conductor was negligent in not assisting her to alight from the train, and that it was his duty under the law to assist her in leaving the car, without stating any facts which imposed such a duty upon the company in addition to the duty of giving her reasonable time and opportunity to alight, was subject to special demurrer.</p> <p>(b) Except in the particular just named, there was no error in overruling the demurrer to the petition as amended.</p> <p>2. Where the relation of carrier and passenger is once established between a person on a railroad train and the company, unless terminated by the ■ voluntary act of the passenger, or the act of the carrier, under circumstances justifying its termination, it continues to the end of the journey and until the passenger has had reasonable time and opportunity to depart from the train or car in safety, and after he has left the Car, until lie has had reasonable time and opportunity within which to leave the premises of the carrier.</p> <p>(a) Upon arrival at the end of the passenger’s journey, it is the duty of the carrier to afford to'the passenger reasonable time and opportunity to leave the train in safety (omitting reference to the duty as to affording opportunity to leave the premises, as not involved here).</p> <p>(b) The general rule as to the continuation of the relation of carrier and. passenger has sometimes been stated by saying that it does not terminate until the passenger has alighted from the train, or has so alighted and left the place where passengers are discharged. But this is to be taken in connection with the rule that ordinarily if the carrier stops its train for a sufficient length of time for the passenger to leave it in safety, and affords him reasonable opportunity for so doing, it will have discharged its duty so far as the departure of the passenger from the train is concerned.</p> <p>(c) Where the pleadings and evidence raised the issue whether a railroad company had complied with its duty in this respect, for the court to charge that a passenger continued to be such until after alighting from. the car, and that the company was bound to exercise all extraordinary care and diligence for the protection of the passenger until after alighting, without giving any instruction as to the measure of duty in regard to affording the passenger time and opportunity to leave the train, was calculated to mislead and confuse the jury.'</p> <p>3. Where a woman brought suit against a railroad company, on the ground that she was injured by being thrown from the train while in the act of alighting therefrom, and alleged that she was greatly embarrassed and humiliated by reason of having her person exposed on account of the fall, in the absence of any evidence to support such a contention the judge should not have referred to it in his charge.</p>

<p>Three of four sureties, who have paid the debt of their principal, may jointly sue their cosurety for contribution, founding their action upon the obligation containing the contract of suretyship, and will have the same time within which to bring suit as the creditor would have had on the same instrument.</p>

<p>Action for damages. Before Judge Morris. Milton superior court. November 6, 1912.</p>

<p>1. Under the facts and circumstances of this case — it being the trial of one charged as accessory before the fact to the crime of murder — it was not cause for a new trial that the court failed, in the absence of a request, to instruct the jury “that the conviction of one charged with a crime, or a plea of guilty of one jointly charged with an. offense) [raises] no presumption of the guilt of the other one so jointly charged,” the court having instructed the jury to the effect that, before they would be authorized to convict the defendant on trial as accessory before the fact, the State would have to prove the guilt of the person charged as principal to their satisfaction beyond a reasonable doubt (explaining such a doubt), and also the guilt of the defendant on trial as such accessory, to the same degree of certainty. The plea of guilty of one jointly indicted as principal did not raise a presumption of the guilt of the defendant on trial as accessory before the fact; but it was competent evidence to prove the fact that such plea had been entered, as tending to show the guilt of the one charged as principal, the proof of his guilt being a condition precedent to the finding of the defendant on trial guilty as such accessory; and such plea having been put in evidence by the State without objection, if the accused on trial desired the court to instruct the jury to limit their consideration of the plea to the purposes for which it was admissible, a proper and timely request for such instruction should have been presented to the court.</p> <p>2. In the absence of a special request so to do, the court is not bound to charge the provisions of the Penal Code, § 1031, that “All admissions should be scanned with care, and confessions of guilt should be received with great caution.” Lindsay v. State, 138 Ga. 818 (6), 822 (76 S. E. 369), and cases cited.</p> <p>3. The court correctly instructed the jury as to the necessity for corroboration of the testimony of an accomplice before his testimony would be sufficient to authorize a conviction; and it was not cause' for a new trial that the court failed, in the absence of a request, to charge that “it is not sufficient that the accomplice is corroborated as to the facts and circumstances of the corpus delicti, when those facts and circumstances do not go to show any connection of the defendant with the commission of the crime; the accomplice’s testimony in a felony case must be corroborated by some independent fact or circumstance which, taken by itself, leads to the inference, not only that the crime has been committed, but that the defendant is connected with its commission.” Moreover, .as the State did not rely solely'on the evidence of the alleged accomplice to connect the accused with the offense, it was not incumbent upon the court, without request, to instruct the jury touching corroboration. Robinson v. State, 84 Ga. 674 (11 S. E. 544).</p> <p>4. The testimony as to alleged confessions being prima facie admissible, the court did not err in leaving it to the jury to determine whether or not such confessions were freely and voluntarily made. Irby v. State, 95 Ga. 467 (20 S. E. 218); Adams v. State, 129 Ga. 248-251 (58 S. E. 822, 17 L. R. A. (N. S.) 468, 12 Ann. Cas. 158); see also Lindsay v. State, supra.</p> <p>5. The .court gave in charge to the jury Penal Code § 1017, as to the number of witnesses generally sufficient to establish a fact, and the stated exceptions to the rule, and in immediate connection gave the following instruction: “The testimony of an accomplice in a case is not sufficient of itself to convict a party charged with the commission of a crime under the law. That testimony, in order to authorize you to convict, must be corroborated, and the extent of the corroboration of the testimony is a question entirely for the jury. I do not charge you that there is or there is not testimony of an accomplice in this case; I simply give you the rule; and if there is any testimony that has been delivered in the case from an accomplice, why then you apply these rules that the court gives you in charge to that testimony.” This charge was not erroneous on the ground that the court failed, in connection therewith, to inform the jury as to the meaning of the words, “an accomplice” and “a felony,” or to instruct them as to the nature of the corroborating circumstances required in order to convict the defendant on trial, and that the case on trial was a felony; there being no request to charge as to such matters. Pickens v. State, 132 Ga. 46 (63 S. E. 783), and cases cited; Atlantic Coast Line B. Co. v. Jones, 132 Ga. 189 (13), 191 (63 S. E. 834); Pye v. Pye, 133 Ga. 246 (65 S. E. 424) ; Helms v. State, 138 Ga. 826 (7), 833 (76 S. E. 353).</p> <p>6. The instruction excepted to in the 9th ground of the motion for a new trial, on the subject of confessions, was not fairly subject to the criticisms made upon it.</p> <p>7. It was not cause for a new trial that the court failed, in the absence of a request, to charge on the law of circumstantial evidence; the evidence against the accused not being entirely circumstantial, and the court having fully and correctly charged the jury as to the law of reasonable doubt and the amount and character of the evidence necessary to authorize a conviction. McElroy v. State, 125 Ga. 37 (53 S. E. 759); Smith v. State, 125 Ga. 296 (54 S. E: 127); Brannon V. State, 140 Ga. 787 (7), 788 (80 S. E, 8).</p> <p>8. Where three persons were jointly indicted for murder, one charged as principal and the other two as accessories before the fact, on the separate trial of one of the latter, a plea of guilty having been entered by the defendant charged as principal, it not appearing that sentence had been imposed in accordance with such plea, it was not cause for a new trial on behalf of the defendant tried and convicted as accessory that the court charged the jury to the effect that if they found that the principal had entered such .plea, then they might “consider the charge against the defendant on trial of being an accessory before the fact.”</p> <p>9. There was evidence to authorize the verdict, and the court did not err in refusing a new trial.</p>

<p>Complaint. Before Judge Thomas. Thomas superior court. October 30, 1912.</p>

Action for damages. Before Judge Bell. Eulton superior court. October 24, 1912.

<p>1. Where one is convicted of offenses against municipal ordinances, and becomes insane after his conviction but before performance of the sentences, and, having been so adjudged, is sent to the State Sanitarium, he may, after his discharge from that institution “as not insane,” and in the absence of proof that he is in fact insane, be taken into custody and compelled to perform the unexecuted sentences. ■</p> <p>2. The court did not err in refusing the application for the discharge c f the person alleged to be illegally detained.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. November 14, 1912.</p>

<p>Application for dower. Before Judge Roan. Newton superior court. January 10, 1913.</p>

<p>Processioning. Before Judge Hammond. Richmond superior court. September 2, 1912.</p>

<p>1. An equitable petition by a married woman alleged that she and her husband purchased a tract of land for $600, paying $400 thereof, and receiving a bond to make title to them upon the payment of the balance of the purchase-price; that she paid $225 of the purchase-money out of her separate funds; that, for the purpose of selling the property, her husband, without her consent or ratification, obtained from the obligor in the bond a deed conveying the property to him, and thereafter conveyed the land to the defendant in the present action, who' took with full knowledge of the facts. The prayer was that an equitable lien upon the land for the sum of $225 be established in her favor, that the prop- ' erty be sold and the proceeds be applied to the payment of that sum, and for general relief. Held, that such petition was demurrable.</p> <p>2. A petition of the character indicated in the preceding headnote was demurrable although the plaintiff by amendment prayed, in the alternative, that, upon the payment to the defendant of the balance due on the purchase-money for a half interest in the land, “which sum petitioner now offers, and is willing to pay,” the defendant should be required to execute and deliver to the plaintiff a deed to a half interest therein.</p> <p>(a) The mere statement in the prayer of an offer and willingness on the part of the plaintiff to pay the balance due for a half interest in the land did not amount to an allegation of tender, or present any sufficient excuse for the failure to make a tender, so as to furnish a basis for a prayer for specific performance, if such a remedy would otherwise have been applicable as to an undivided half interest, under the joint bond.</p> <p>3. An equitable petition by one of two joint obligees in a bond for title, to enforce specific performance as to a half interest in the property against one who it was alleged, with notice of the facts, took a conveyance from the co-obligee in the bond, who in turn obtained a deed from the obligor, purporting to convey the entire title to him, was demurrable on the ground that neither the obligor in the bond nor the co-obligee of the plaintiff was made a party.</p> <p>4. Such a petition was also subject to special demurrer on the ground that it did not either exactly pr approximately allege the date of the purchase by the plaintiff and her co-obligee in the bond.</p>

Action for breach of contract. Before Judge Sheppard. McIntosh superior court. November 29, 1912. A. M. Prior brought suit against the Hilton & Dodge Lumber Company, seeking to recover damages for a breach of contract.

<p>Petition for mandamus. Before Judge Worrill. Early superior court. September 27, 1913.</p>

<p>Action for damages. Before Judge Daniel. Spalding superior court. January 24, 1913.</p>

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

<p>1. The credibility of a witness is solely for the jury’s determination. A charge that the improbability of the testimony of the plaintiff (who was the only witness who testified to an essential element of his alleged right to recover) would not 'in itself be sufficient to “impeach him,” when considered- in connection with its context, was subject to be understood by the jury as an instruction that an inherent weakness in particular testimony would not of itself justify the jury in refusing to believe it, and was prejudicial error.</p> <p>2. An omission to instruct the jury on the mathematical process of reducing a given sum payable in the future to its present worth, in the absence of an appropriate request, is not ground for a new trial.</p>

Action for breach, of warranty. Before Judge Edwards. Paulding superior court. August 6, 1912. J. S. Tidwell brought suit against Mrs. M. E. Turner and N. C. Turner, alleging, in substance, that the defendants conveyed to him the lot of land in controversy, and that when he sought to enter and take possession he found B. E. and Bosa Turner in possession.

<p>From:.Talbot superior court. Motion to dismiss.</p>

<p>. Partition. Before Judge Hawkins. Johnson superior court. December term, 1912.</p>

<p>Action for breach of contract. Before Judge Pendleton. Fulton superior court. September 6, 1912.</p>

Action for damages. Before Judge Hammond. Richmond superior court. October 01, 1910. Mrs. Janie E. Burekhalter brought suit against the Charleston & Western Carolina Railway Company, to recover for the homicide of her husband. There was evidence tending to show the following among other facts: The husband of the plaintiff was a foreman in the employment of the defendant, and was killed while engaged in making up his train.

<p>Exceptions to auditor’s report. Before Judge Meadow. Elbert superior court. May 8, 1912.</p>

<p>Indictment for murder. Before Judge Hawkins. Laurens superior court. September 20, 1913.</p> <p>David McLaughlin, alias Lewis Davis, was tried under an indictment charging him with the offense of murder, it being alleged that he shot and killed his wife, Selma. Two witnesses, testifying that they saw the shooting, swore that the accused shot his wife four times,, once in the breast and three times through the bowels, inflicting mortal wounds from which the woman died in two or three hours. In his statement the defendant claimed that his mother-in-law and his wife had made a violent assault upon him, and that as he was leaving the place at which this occurred the husband of his wife’s mother 'assaulted him with a piece of wood, striking him violently on the face, and that he shot four times at the man thus assaulting him. After the homicide the accused fled the State. The homicide occurred about nine years before the trial. During this time the defendant remained away from the State, and had been arrested and confined in jail about a month before the trial occurred. Two attorneys practicing in the court were appointed, on the 4th day of August, 1913, to defend the accused, as he had not been able to employ counsel. On the following morning the case was called for trial, and at the request of the attorneys so appointed the trial was temporarily postponed, and the case was called again for trial on the afternoon of August 0th. A motion for a continuance was then made, one of the counsel stating that he had not had time to prepare the defense, had had no opportunity to confer with anybody who might know anything about it, nor had he had opportunity to investigate and find out whether the defendant had any defense. Counsel stated further, that he had not been well for several days, and was not able and would not undertake to go out and attempt to locate witnesses; that he had not been able to prepare the case in the length of time allowed; and that he did not think the accused could have a fair and impartial trial if he was forced to trial 'at that time. The other counsel appointed to represent the accused stated, that he had been very busy in the trial of other cases since the appointment ; that he had not had the slightest opportunity to investigate the ease, and the merits of the same were unknown to him; and that he would not like to go. to trial without the assistance of the associate counsel. The defendant swore, that he had been in jail since the 4th day of July, 1913, and had been absent from the county sinee 1904; that he received a letter from his father the day before, 'and this was the first time he had gotten into communication with him; that he had left the county nine years be7 fore, "on account of this row;” that he ran away on account of the indictment. But on further examination he stated that at the time of leaving he did not know of the indictment. The motion for a continuance was overruled. After the submission of evidence, of argument of counsel, and the charge of the court, the jury rendered a .verdict of guilty, without a recommendation. A motion for a new trial was overruled, and the defendant excepted.</p>

<p>Where cotton in the field is levied on, and a third person interposed-a claim but refuses to give a forthcoming bond, upon the termination of the trial of the claim case favorably to the claimant he is not liable for the expense of gathering the crop and putting it into merchantable bales. He is entitled to the return of his property without deduction for sueb expense. ■■ ■ ■■></p>

<p>Petition for injunction. Before Judge Frank Park.. Decatur superior court. June 28, 1913.</p>

<p>There was no error in sustaining the general demurrer of two of the defendants and dismissing the petition as to them.</p> <p>Equitable petition. Before Judge Eite. Bartow superior -court. November 11, 1912.</p>

<p>Action for damages. Before Judge Maddox. Floyd superior court. January .17, 1913.</p>

<p>The court below did not err in refusing the injunction sought.</p>

<p>Ejectment. Before Judge Frank Park. Calboun superior court. August 6, 1912.</p>

<p>Application for headright. Before Judge Conyers. Camden superior court. November 5, 1912.</p>

<p>Where one joins with other persons in making application for an alteration in an old road, and petitions that the new road be laid out along the route which passes over the applicant’s land, and commissioners are appointed under the provisions of the Civil Code, § 640, and where they proceed to mark out the new road along a route agreed.upon by themselves and the landowner, and make their report, and the board of eommissioners of the county pass an order that the report thus made be adopted and that the alteration be made conformably thereto, it is not competent for the board of commissioners to have the new road constructed in a different location from that marked out; and where they attempt to do so they should be enjoined.</p>

<p>Complaint for land. Before Judge Jones. Rabun superior court. July 5, 1913.</p>

<p>Temporary alimony, etc. Before Judge Frank Park. Mitchell superior court. June 7, 1913.</p>

<p>1. A .trial judge does not abuse his discretion in refusing to continue the hearing of an application for temporary alimony, based on a suit for divorce, until pending proceedings in a court of ordinary, inquiring into the sanity of the applicant, are determined.</p> <p>2. Whether the court committed reversible error in refusing to hear evidence as to the sanity of the applicant, under the special facts of this record, is not decided.</p> <p>3. In a suit for divorce, alleging as grounds therefor adultery and cruel treatment, either party may testify with respect to the alleged cruel treatment, but not with respect to adultery. The Civil Code, § 5861, makes parties wholly incompetent to testify only when adultery is the sole basis of a suit, action, or proceeding.</p> <p>4. It was an abuse of discretion, under the facts of this case, to award the plaintiff $30 counsel fees, $75 cash, and $30 per month as temporary alimony.</p>

<p>1. The pleadings in this case are somewhat meager and inartificial. The evidence, as brought to this court, is confusing and lacking in clearness. But from the pleadings and evidence as they appear in the record, this court can not say that the presiding judge abused his discretion in granting a temporary injunction against the defendants before the court.</p> <p>(a) Under the bill of exceptions and the assignments of error, complaining of the grant of the injunction upon the hearing, the order granted by the presiding judge when the petition was presented to him is not before this court for review, and no decision is made as to its propriety and correctness.</p> <p>2. The demurrer to the petition was not before the trial court to be passed on as such, but only to be considered as to whether or not an interlocutory injunction should be granted.</p> <p>(a) Under the pleadings, evidence, and bill of exceptions, this court'can not say that the demurrer presented an insuperable objection to the granting of a temporary injunction.</p> <p>3. The judgment now rendered does not prejudice the rights of the defendants to insist upon the demurrer as such at the proper time.</p> <p>4. The prayer for injunction contained in the petition was as follows: “And that the said club, its management, and all members thereof, together with its managers and agents, be enjoined from keeping or maintaining any buffet, saloon, locker-club, or a place by any other name or without name for the illegal sale of such liquors, in said building or elsewhere.” The order setting the time for the application for injunction to be heard included the following: “It is further ordered, that, in the meantime and until the hearing, the defendants be and they are hereby restrained and enjoined as prayed in this petition.” The order granting the injunction, on the hearing, recited certain facts which the presiding judge considered had been made to appear, and certain expressions of opinion in regard to the character of the club. The entire provision in regard to the granting of the injunction was contained in these closing words: “Let the injunction heretofore granted continue of force.” Held, that this court does not commend the practice of adjudicating facts in the order granting an interlocutory injunction and setting forth the injunction granted merely by reference to an order granted when the petition was presented' and set down for a hearing, which in turn refers to the prayers of the petition in order to ascertain the nature and extent of the injunction granted.</p> <p>5. On such a hearing the presiding judge should not undertake to finally adjudicate questions of fact or to grant a permanent injunction. Cassidy v. Howard, 140 6a. 844 (80 S. E. 1) ; Bleyer v. Blum, 70 6a. 558.</p> <p>6. Where the allegations of a petition were that the defendants were operating and maintaining a “blind tiger,” or liquor nuisance, at a particular place, by there selling spirituous, malt, and intoxicating liquors in violation of law, and there was no contention that the defendants were maintaining elsewhere a similar nuisance, either in connection with, or independently of, the one alleged to exist at the place designated in the petition, nor even that the defendants were contemplating or intending to elsewhere create and maintain such a nuisance, the judge was not authorized to grant an interlocutory order enjoining the defendants from maintaining a nuisance, not only at the place designated in the petition, but “elsewhere.” Direction is given that the order granted be modified in accordance with the rulings here made.</p>

Action for damages. Before Judge Boan. Newton superior court. November 30, 1912. J. F. Stubbs brought suit against the Central Georgia Power Company, alleging as follows: The defendant was chartered by the laws of Georgia, and is an electric company engaged in the business of generating. electricity and in transmitting the same over wires to various parts of the State of Georgia, and has its principal office and place of business in Bibb county, Georgia.

<p>1. As to the question of venue, this case is controlled by the decision in Central Georgia Power Company v. Stubbs, ante, 172 (80 S. B. 636).</p> <p>2. In cases of nuisances which cause permanent injury to land, the ordinary rule is that the measure of damages is the depreciation in the market value; in regard to nuisances which are of a non-permanent, abatable, or temporary nature, the depreciation in the usable or rental value ordinarily furnishes the measure. But, under some circumstances, there may also be a recovery for special damages. Joyce on Nuisances, § 488; 4 Suth. Dam. (3d ed.) §§ 1035, 1038, 1048.</p> <p>3. An owner of land alleged to have been injured can not have a recovery of such a character as to include double damages for the same injury.</p> <p>(a) Under the demurrer in the present case, it is unnecessary to lay down any exact rule as to when a nuisance may be treated as permanent and when as non-permanent.</p> <p>4. If an actionable nuisance interferes with ingress to and egress from a store, or so injuriously affects the property as to render it wholly or. partly unsuitable for use or rent, or deters customers from resorting thereto, and proximately causes a loss of custom in an established business, this will furnish a basis for recovery of damages.</p> <p>5. If a company, for the'purpose of operating an electric plant, erected a dam in such manner as to. create a nuisance by backing water, from which mosquitoes were bred and miasma caused, so that many people in the vicinity were made sick and some died and others moved away, and thereby the custom of the plaintiff at his store was decreased, loss of custom thus resulting would not furnish a basis for recovery by him, ' at least unless the injury to others was alleged and shown to have been wilful and for the purpose of injuring the plaintiff.</p> <p>6. The owner of a dwelling-house which he occupies as a home may recover, just compensation for the annoyance and discomfort occasioned by the maintenance by another of a nuisance on adjacent premises. Swift v. Broyles, 115 Ga. 885; 4 Suth. Dam. (3d ed.) 3066, § 1051.</p> <p>(a) The subject of treating depreciation in rental value, not as an independent basis of recovery, but as bearing on the amount to be recovered for annoyance and discomfort in the use of a dwelling-house, is not now involved, ■</p> <p>(b) The different means of measuring damages are not to be so applied as to give double damages for the same thing.</p> <p>7. The other grounds of the demurrer to the petition as amended were without merit.</p>

<p>1. The contentions in this case on the subject of venue are controlled by the decision in Central Georgia Power Co. v. Stubbs, ante, 172. See also Central Georgia Poioer Co. v. Pope, ante, 186 (80 S. B. 636, 642). A petition, filed in 1912, alleged that the defendant caused a nuisance by backing water in a stream'which ran alongside of a described tract of land on which he and his family lived during the year 1911, causing them to become sick with malarial fever, and forcing them to abandon their home and move from the place. It further alleged: “He was unable, on account of said sickness, to gather his 30-acre .cotton crop, and lost thereby four bales of said cotton crop of the value of $200; he also lost his pea crop of the value of $40, potato crop of the value of $50; paid Dr. Holmes medical bill $117; expense for moving $100; • making a total of $507. He is unable to rent his place this year, of the value of $150; the land is permanently decreased in the market value of $10 per acre; total $1,187.” Held:</p> <p>(a) The allegations in regard to the pea crop and the potato crop lost on the land were not subject to special demurrer.</p> <p>(b) It was not necessary to set out the number of visits paid by the physician, and a ground of special demurrer which stated that the “defendant demands a full itemized bill of particulars as to this item” was properly overruled.</p> <p>(c) The allegation as to the expense .of moving was not demurrable on the ground that it was not the proximate res.ult of the alleged nuisance, • or that there should be an itemized statement of the elements of expense involved in the moving.</p> <p>(d) The allegation that the land is permanently decreased in the market' value of $10 per acre, without stating what was claimed to be its value, was subject to special demurrer. City Council of Augusta v. Marhs, 124 Ga. 365 (6), (52 S. E. 539).</p> <p>(e) An allegation in another paragraph of the petition that, in consequence of the sickness of himself and family and their inability to gather the crops grown on the land in the year 1911, the plaintiff lost such crops, of the value of $290, with no further description of such crops thus valued in bulk, was subject to special demurrer.</p> <p>3. Except as above indicated, there was no error in overruling the demurrers on the grounds set out in them.</p>

<p>1. A petition to recover damages caused by a nuisance alleged to have been created by the defendant, which alleges that the plaintiff had lost his part of the crops grown on the land in consequence of the sickness of the croppers brought about by the nuisance, is subject to special demurrer. In such a case, the quantity and character of the crops alleged .to have been destroyed should have been set out.</p> <p>2. On the other questions made by the record this case is controlled by the decisions this day rendered in the eases of Central Georgia Power Co. v. Stubbs, Central Georgia Power Co. v. Pope, and Central Georgia Power Co. v. Fincher, ante, 172, 186, 191 (80 8. E. 636, 642, 645).</p>

<p>Complaint for land. Before Judge Littlejohn. Macon superior court. December 27, 1912.</p>

<p>Complaint for land. Before Judge Pendleton. Fulton superior court. October 17, 1912.</p>

Equitable petition. Before Judge Maddox. Floyd superior court. September 27, 1912.

<p>Action for damages. Before Judge "Walker. Taliaferro superior court. January 24, 1913.</p> <p>William H. Murden Jr., by'his next friend, brought suit against the American Telephone and Telegraph Company and the Southern Bell Telephone and Telegraph Company, alleging in substance as follows: On March 9, 1910, certain agents and employees of the defendants were engaged in changing the location of and repairing their lines of wire in the town of Robinson. The defendants furnished to their agents and the latter used, for the purpose of keeping their tools, a large chest about ten feet long, two feet deep, and two feet wide. The lid was made of heavy pine plank, attached to the chest at one edge by hinges, and bound around the other edges with an iron strip, which projected below the lower surface of the lid so as to cover the joint of the lid with the chest. It had a small chain attached to it, so as to prevent it from going much beyond a perpendicular position when opened. This chain extended from the lid of the chest across the angle made when the chest was opened and the lid left standing. When thus left standing nearly in a perpendicular position the lid could by a very slight pressure upon the chain be drawn over so as to fall. The weight of the lid was such as to make it probable that in falling the projecting iron strip would cut off any object that might be caught under it; and when thus left open the box and lid acted as a dangerous trap. On the date mentioned the agents and employees of the defendants placed the chest in a cottonseed warehouse, which stood on the side of a nnblic street in the town of Eobinson, and was elevated only one step above the level of the street, and was about twenty feet from the passenger station of the railroad, fifty feet from the post-office and store of W. H. Murden, 'and about seventy-five feet from his home, near the homes of others and not far from the schoolhouse. The warehouse was not the property of or on the premises of the defendants, but belonged to the plaintiff’s father, and the plaintiff was not a trespasser in entering it. The place was a public one, and much frequented by children, the children of the plaintiff’s father, W. H. Murden, and others being frequently at the store, in the street near the seed warehouse, and liable to enter the same should the door be left open. On the date mentioned the employees of the defendants left the lid of the chest raised, and went away, leaving the door of the house open as an invitation to children to enter, they all knowing that the place was frequented.by children and that the lid thus left was a dangerous trap likely to attract the notice and invite the investigation of children. The plaintiff, who was a child between two and three years old, seeing the door open and the lid up, was attracted thereby, and in seeking to investigate it, according to the natural instincts of a child, pushed upon the chain and threw the lid down. His right thumb was caught and mangled so that it had to be cut off at the joint. He was incapable of exercising care for his own safety, and the occurrence was due entirely to the negligence of the employees of the defendants in leaving the chest lid open and exposed as stated. In consequence of the injury he was put to an expense of $15 for doctor’s bills, suffered great pain, was permanently disfigured, and had his capacity to labor permanently impaired.</p> <p>The defendants demurred to the petition. The demurrer was overruled, and the defendants excepted. They also traversed the entry of service, and assigned error upon the overruling of such traverse.- But in the briefs filed in the Supreme Court counsel for the plaintiffs in error expressly abandoned that point and stated that the only ground on which a reversal was sought was that the court erred in overruling a general demurrer to the petition.</p>

<p>Indictment for murder. Before Judge James B. Park. Jasper superior court. October 30, 1913.</p>

<p>■ Indictment for murder. Before Judge James B. Park. Jasper superior court. October 30, 1913.</p>

<p>A mortgagor may plead damages arising from a breach of an independent contract, as a set-off in bar of a proceeding to foreclose a mortgage on land, under the Civil Code, §§ 3276, 3279.</p>

<p>1. Where a person accused of violating a municipal ordinance is brought before the municipal court having jurisdiction to try and punish offenders against the ordinance, and a formal charge is made against such person and served on him according to law, it is not sufficient cause for his release in advance of the time set for trial, on writ of habeas corpus, that his arrest was unlawful.</p> <p>2. The writ of habeas corpus is not an available remedy for the release from custody of a person charged with a violation of a municipal ordinance, on the ground that he has,been previously put in jeopardy, where such person has an adequate remedy to review the judgment of the court, if adverse to his plea of autrefois acquit.</p>

Action for breach of contract. Before Judge James B. Park. Hancock superior court. September 23, 1912.

<p>The court did not err in sustaining a general demurrer and dismissing the petition in this case.</p>

<p>Equitable petition. Before Judge Morris. Milton superior court. November 5, 1912.</p>

Motion to set aside judgment, etc. Before Judge Bell. Bibb superior court. October 8, 1912.

<p>Trover. Before Judge Morris. Cobb superior court. November 20, 1912.</p>

Indictment for murder. Before Judge Boan. Fulton superior court. October 31, 1913. /Leo M. Frank was indicted for the murder of Mary PHagan. The indictment charged that the homicide was committed by choking the victim with a cord drawn around her neck/On the trial the accused was convicted, and sentenced to be hanged. A motion for new trial was made, which, after amendment, was heard and overruled. The defendant excepted.

<p>Indictment for murder. Before Judge Edwards. Paulding superior court. November 5, 1913.</p>

<p>Indictment for murder. . Before Judge James B. Park. Morgan superior court. November IS, 1913.</p>

<p>Equitable petition. Before Judge W. H. Lesseter (of the city court). Dooly superior court. November 6, 1912.</p>

<p>Complaint for land. Before Judge Parker. Ware superior court. December 14, 1912.</p>

<p>Where a dwelling-house containing a cellar was rented on monthly payments, and because of a leakage through the wall a pond of filthy water accumulated in the cellar, rendering the house unfit for a home, and the landlord refused to repair the house, he will not be liable in damages to the tenant on account of the tenant’s sickness sustained three or four months after the refusal to repair, which sickness is attributed to the unsanitary condition of the house. The tenant by remaining in the untenantable premises was guilty of such negligence as barred á recovery.</p>

<p>Trover. Before Judge James B. Park. "Wilkes superior court. January 24; 1913. ■</p>

Before Judge Bawlings. Emanuel superior court. January 17, 1914. Lee Kennedy, against whom an indictment for the offense of murder had been returned by the grand jury of Emanuel county, presented a petition to the judge of the superior court in the circuit which embraces that county, praying for a change of venue to some other county, on the ground of existing danger of mob violence and lynching of the accused.

<p>1. The charter of the town of Whigham confers on the mayor and council of that municipality the authority to pass an ordinance providing for the registration of qualified voters so as to entitle them to vote at an , election for the purpose of determining the question of whether the town shall issue bonds for certain municipal purposes.</p> <p>2. Where statutory proceedings are brought for the purpose of validating municipal bonds, under the Civil Code (1910), § 445 et seq., and are contested by citizens who become parties thereto and deny the truth of the substantial allegations of the petition, the burden is on the State, actihg through its solicitor-general, to prove the material facts which are requisite to obtain validation; and where there is a total absence of such proof, it is error for the court to render judgment validating the bonds.</p> <p>3. The ruling made in the first headnote is applicable where the petition • filed by the solicitor-general alleges sufficient facts to warrant validation of the bonds and the answer filed by the municipality admits the facts alleged.</p> <p>(a) The decisions in the eases of Eppmg v. Columbus, 117 Ga. 263 (43 S. E. 803), and Spencer v. Clarkesville, 129 Ga. 627 (59 S. E. 274), have been reviewed, and, in so far as they conflict herewith, are overruled. •</p>

<p>Equitable petition. Before Judge Roan. Newton superior court. July 23, 1913.</p>

<p>1. Where one as an attorney at law prosecutes to judgment a suit upon a note the payment of which is secured by a conveyance of property by the debtor, he does not thereby become incompetent as an attesting witness to a deed executed in pursuance of the statute.and reconveying to the debtor the property for the purpose of levy and sale under said judgment and the execution based thereon.</p> <p>2. Under the evidence the trial judge was authorized to find, if not compelled to do so, that the contract which the plaintiff in error relied upon as an estoppel against .the defendant in error in her efforts to obtain possession of the premises' in dispute, if entered into at all by an alleged agent for the defendant in error, was made without authority from her, and that consequently it was not binding upon her.</p> <p>3. The court did not err in refusing the injunction.</p>

Petition for mandamus. Before Judge Mathews.' Bibb superior court. November 22, 1913. S. D. Cassidy filed a petition for mandamus against C. M. Wiley, ordinary of Bibb county, to compel the respondent to issue to him a license to conduct the business of selling a commodity in imitation of or intended as a substitute for beer, under the Civil Code (1910), §§ 1763, 1765.

<p>1. The allegations of the petition set out a cause of action; and the uncontradicted evidence being in support thereof, the trial court did not err in directing a verdict for the plaintiff.</p> <p>2. The evidence excluded by the court, as set out in the second division of the opinion, was immaterial, and was properly rejected.</p> <p>3. A rule of the railroad commission of the State, which provides that “All special rates made by any company for any service to be rendered shall first be submitted to and approved by the commission before being put into effect,” was not admissible in evidence on the trial of a case against a railroad company for the recovery of a penalty alleged to have been incurred, under § 2752 et seq. of the Civil Code, by reason 'of the collection of a rate in excess of that prescribed by the railroad commission, it not appearing that the rule was applicable, or in effect at the time of the trial. But even if such rule is immaterial on tile trial of such a case, its introduction will not work a reversal under the facts in this case.</p>

<p>Action upon constable’s bond. Before Judge Bell. Fulton superior court. April 18, 1912.</p>

<p>• Probate of will. Before Judge Sheppard. Tattnall superior court. September 10, 1912.</p>

Action for damages. Before Judge Brand. Jackson superior court. January 15, 1913. Claud C. Vandiver brought suit against the Gainesville Midland Eailway, alleging that, while in the service of the company as fireman, he was injured because of the negligence of the defendant and its servants. The nature of his injury and the negligence of the defendant were set forth in detail.

<p>Petition for injunction. Before Judge Jones. Towns superior court. March 24, 1913.</p>

<p>Discharge granted in bankruptcy, pending a suit commenced in a State court before the proceedings in bankruptcy, and duly served, is matter for plija in such suit. The enforcement of a judgment, which was rendered in such suit after the discharge, will not be enjoined because of it.</p>

<p>1. The court did not err in admitting evidence tending to establish the custom or usage of banks in handling for collection checks drawn upon banks situated in some other city than that in which the bank receiving the cheek for collection is located.</p> <p>2. Under the evidence in the case the court did not err in submitting to the jury the issue as to whether there was an implied contract between the plaintiff and the defendant, exempting the latter from responsibility • for neglect upon the part of the agents or correspondents through whom it sought to collect a certain cheek ’which had been deposited with it for collection.</p> <p>3. There was no evidence authorizing the jury to find that there was an express contract between the parties, exempting the defendant bank, which had received of the plaintiff a check upon another bank for collection, from liability for the default or neglect of its agents or correspondents; and the court erred in charging the jury in reference to the effect of such an express contract.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. November 25, 1912.</p>

<p>Action for damages. Before Judge Pendleton. Eulton superior court. December 3, 1912.</p>

<p>Complaint. Before Judge Rawlings. Jenkins superior court. December 30, 1912.</p>

<p>Complaint for land. Before Judge Morris. Gilmer superior court. December 14, 1912.</p>

<p>1. If. two individuals, having no relation as partners, purchase personal property, and execute their joint note, containing a mortgage.clause, for the purchase-price, the mere fact that they may be joint owners of the property will not authorize one of them, without the consent of the other, to sell the property to the original vendors in part payment of the purchase-price, notwithstanding the one making the sale may believe that the other has absconded.</p> <p>2. The verdict was not demanded by the evidence, and the error in the charge required a new trial.</p>

<p>The judgment of nonsuit was proper. A right of recovery in plaintiifs suing as heirs at law of a named person, based upon a superior title from a common grantor, is not established when there is no proof con-' necting the plaintiifs with the alleged common grantor, and where the description of the land in the deeds produced by the defendant under notice is different from that of the land as described in the petition; there being no admission in the pleadings that the defendant’s claim of title is under the alleged common grantor, and no proof tending to identify the locus in quo with the land described in the deeds produced by the defendant.</p>

<p>1. Under the will set out in the first division of the opinion, the widow of the testator took an estate, during life or widowhood, in all of his property, real and personal.</p> <p>(а) Under item 3 of the will, George M. Almand, a son of the tesfator, took a vested remainder along with the testator’s other children, subject to be divested in case of the death of such son before the death of the life-tenant. In that event it would pass to the other children.</p> <p>(б) It appearing that the remainder estate vested in such son, if if was contended that there was a subsequent divesting thereof by reason of his death before that of the life-tenant, the burden of showing such divesting would rest upon the person to whose case the establishment of it was essential; and in the absence of such proof the loss would fall upon the person failing to offer it.</p> <p>2. Where a life-tenant has been in possession of the life-estate devised under the will of the testator for a period of thirty-nine years, an assent to such legacy by the executors will be presumed.</p> <p>(a) In such a case the assent to the legacy bequeathed to the life-tenant will enure to the benefit of the remaindermen.</p> <p>(b) On the death of the life-tenant the executors can not, in such a case, take charge of the estate in remainder and administer it by selling the property, charging commissions, and paying counsel fees for the purpose of prosecuting litigation instituted by them, out of the proceeds of the estate.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. December 23, 1912.</p>

<p>Complaint for land. Before Judge Hammond. Richmond superior court. December 21, 1912.</p>

<p>Complaint. Before Judge Meadow. Madison superior court. September 3, 1912.</p>

Equitable petition. Before Judge Morris. Forsyth superior court. September 30, 1912. F. A. Lowe, C. A. Lowe, G. W. Lowe, and Lilia Moore brought their equitable petition against W. B. Lowe, B. J. Findley, and E. E. Brannon. Plaintiffs alleged that they were heirs at law of Joseph F. Lowe, who died March 10, 1906, owning certain real estate in Milton county. Besides those named as plaintiffs, Joseph Lowe left other children, T. F. Lowe, Mrs. Anna M. Phillips, and W. B. Lowe.

Gomplaint. Before Judge Patterson. Cobb superior court. January 21, 1913.

<p>Equitable petition. Before Judge James B. Park. Greene superior court. January 31, 1913.</p>

<p>Application for headright. Before Judge Conyers. Camden superior court. November 6, 1912.</p>

<p>Action upon insurance policy. Before Judge Hammond. Richmond superior court. October 5, 1912.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. August '26, 1912.</p>

<p>Equitable petition. Before Judge Meadow. Madison superior court. September 4, 1912.</p>

<p>Complaint for land. Before Judge Jones. Hall superior court. September 9, 1912.</p>

<p>Divorce and alimony. Before Judge Jones. Stephens superior court. November 19, 1912.</p>

<p>Complaint for land. Before Judge Jones. Hall superior court. January 22, 1913.</p>

<p>Action for damages. Before Judge Morris. Cherokee superior court. September 17, 1912.</p>

<p>Complaint. Before Judge Morris. Cherokee superior court September 20, 1912.</p>

<p>Action of slander. Before Judge Morris. Fannin superior court. December 14, 1912.</p>

<p>Divorce. Before Judge Morris. Cobb superior court. December 28, 1912.</p>

<p>Claim. Before Judge Morris. Cobb superior court. December 14, 1912.</p>

<p>Complaint for land. Before Judge Hammond. Burke superior court. October 7, 1912.</p>

<p>Complaint. Before Judge Walker. Wilkes superior court. September 25,1912.</p>

<p>1. A fi. fa. issued upon the foreclosure of a chattel mortgage in the superior court and directed to “all and singular the sheriffs, or their lawful deputies, and coroners of this State,” could not be levied except by one of the officers to whom it was directed. A levy by a constable of a justice’s court was invalid, and such a levy should have been dismissed' upon a. motion made at the trial.</p> <p>2. The fact that the defendant had made a counter-affidavit and given a forthcoming bond, in both of which was recited the fact of the levy, did not estop him, at the trial, from raising the issue as to the validity of the levy.</p>

<p>1. A judgment refusing a new trial will not be reversed upon a ground as to the merits of which the Justices of the Supreme Court are equally divided in opinion.</p> <p>2. Where a policy of accident insurance contains a condition that it does not cover cases “when the accident or disability results wholly or partly,' directly or indirectly, from voluntary exposure to unnecessary danger,” these words mean an intentional exposure to unnecessary danger, and imply á eonseicpis knowledge of the danger.</p> <p>(a) Consequently, in the trial of a suit to recover the amount of the insurance alleged to have accrued to the estate of the insured by reason of the accidental death of the insured in an automobile wreck, it was not error for the court to instruct the jury thus: “In order for the provision of the accidental feature of the policy, which relieves the company in case of voluntary exposure to unnecessary danger, to be an excuse from liability, three elements are essential: first, a conscious knowledge of the danger; second, an intentional or wilful exposure to it; and' third, that the danger shall be unnecessary.”</p> <p>3. Where a policy of accident insurance provided that the insurance did not cover cases of “accident or disability while under the influence of intoxicants or narcotics,” and on the trial of a suit to recover the amount of the insurance the evidence for the defendant tended to show that just previous to taking the trip on which the accident occurred the insuréd took a bottle of beer in a “near-beer” saloon, and the evidence for; the plaintiff tended to show that at the time of the accident the insured was not under the influence of intoxicants, a finding for the plaintiff upon this issue will not be declared contrary to law.</p> <p>4. There being no evidence to authorize a finding of attorney’s fees on the ground that the refusal of the insurance company to pay the loss within sixty days (Civil Code, § 2549) was in bad faith, a verdict fo.r such fees will not be sustained. This will not require a new trial, but direction is given to write off the attorney’s fees.</p> <p>5. The verdict is supported by the evidence.</p>

<p>Ejectment. Before Judge Frank Park. Baker superior court. September 19, 1912.</p>

<p>Petition for injunction. Before Judge Thomas. Tift superior court. May 7, 1913.</p>

<p>Complaint for land. Before Judge Meadow. Oglethorpe superior court. December 31, 1912.</p>

<p>1. This language contained in a will: “It is my will . . that all .. . of my property . . be given to my wife, to be used . . by her during her natural life . . that one half of my property . shall belong to my wife in fee simple, to be disposed of by her at her death as she may think proper,” gave to the devisee an estate for life in an undivided half interest in the property and an absolute estate in fee simple in the other half undivided interest therein.</p> <p>2. The conveyance by a tenant in common of a portion of the common estate by metes and bounds will be given effect as against the grantor and his privies, so far as it may be done consistently with the preservation of the full rights of, the other tenants in common.</p> <p>3. The evidence objected to, even if inadmissible for the reasons assigned, was not of sufficient materiality to make it ground for the grant of a new trial.</p>

Action for conversion. Before Judge Morris. Cobb superior court. October 19, 1912. T. W. Garrison instituted an action against W. H. Power for conversion of certain machinery of a specified value. It was alleged, that the machinery was '“all the machinery in the gin-house and adjacent thereto,” located on described land which plaintiff had conveyed to defendant, but that in making the Sale the machinery was reserved and did not go with the land.

Equitable petition. Before Judge Thomas. Berrien superior court. November 9, 1912.

<p>Beformation of deed. Before Judge Martin. Montgomery superior court. November 15, 1912.</p>

<p>Complaint for land. Before Judge Ellis. ■ Eulton superior court, September 10, 1912.</p>

<p>Money rule. Before Judge James B. Park. Wilkes superior court. December 10, 1912.</p>

<p>Mandamus. Before Judge Walker. Wilkes superior court. May 20, 1913.</p>

Petition for injunction. Before Judge Jones. Hall superior court. May 2, 1913. R. J. Sanders and several other persons instituted an action against the Mayor and Council of the City of Gainesville, to enjoin the enforcement of executions for certain amounts to cover alleged assessments against the several properties of the plaintiffs, abutting on Main Street, for pro rata portions of the cost of paving the street.

<p>Mandamus. Before Judge Walker. Wilkes superior court. June lé, 1913.</p>

<p>Equitable petition. Before Judge Morris. Cobb superior court. December 31, 1912.</p>

Petition for mandamus. Before Judge James B. Park. Morgan superior court. May 17, 1913.

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

<p>Equitable petition. Before Judge Hammond. Bichmond superior court. November 4, 1912.</p> <p>The County of Bichmond filed its petition against the Biehmond County Beformatory Institute, praying for injunction, receiver, accounting, and general relief. A temporary restraining order was granted, and on the date of the hearing the restraining order was dissolved and the petition was dismissed on demurrer; to which orders the plaintiff excepted. The petition makes substantially this case: A local act relative to Bichmond County was passed in 1885 (Acts 1884-1885, p. 599) entitled “An act to establish in the County of Bichmond, in this- State, a Beformatory Institute, to provide for the- maintenance and conduct of the same, and for other purposes.” • The first section of the act names certain persons and their successors in office, who “are hereby made a corporation for the purpose of inaugurating, establishing, and conducting in and for the County of Bichmond, in this State, an institute for the employment, instruction, and reformation of juvenile offenders, to be called the Biehmond County Beformatory Institute.” The act also provides that boys and girls of Bichmond county, of 16 years of age or under, convicted in Bichmond superior court or Bichmond city court “of any offense known to the laws of this State and punishable by imprisonment,” or convicted in Biehmond city court or the recorder’s court of the City of Augusta, living “an idle and dissolute life,” being orphans, or having parents who do not “provide suitable employment, or exercise salutary control over such minor,” may be sentenced to the reformatory, etc. The act provides that the commissioners shall communicate to the grand jury first in session after the organization of “said board” all facts as to action taken by them in their “corporate capacity,” together with “a detailed estimate as to the moneys necessary to-car ry into execution the provisions of this act,” and, “upon receipt of said estimate, the grand jury may in their discretion recommend” an amount of money to be raised and set apart for' the reformatory “as other moneys for county purposes are raised,” and thereupon the county commissioner shall levy a tax to make such amount.</p> <p>The petition alleges the following: The act contains no provision authorizing any grand jury, except the one designated above, to recommend a county tax for the benefit of the reformatory, or empowering the county commissioner to levy any tax for that purpose, other than such as might be recommended by that particular grand jury; and -the act has never been amended in this or any other particular, save in 1887 (Acts of 1887, p. 832), to authorize the reformatory to bind out minors sentenced to its custody, and in 1904 (Acts 1904, p. 283) to empower the recorder of Augusta to sentence to'the reformatory minors convicted by him of' violating ordinances of that city. The institute laid before the grand jury next in session after the organization (1886) a detailed' estimate such as required, and thereupon that grand jury recommended that “a special tax, not to exceed one thousand dollars in amount” be levied for the purpose of buying the reformatory institute a farm whereupon to establish the reformatory, with a recommendation- that the money be paid over to five citizens whom they named as commissioners, and that the title be so taken that “should said commissioners, after a fair trial, not to exceed five years, of this benevolent experiment, declare that they can not make it a success, the farm shall be sold,” and the county reimbursed. Thereupon the county commissioner levied and collected the special tax of one thousand dollars in 1886, but did not pay over the same to the commissioners appointed by the grand jury, but disbursed it two years later to the defendant institute itself. Subsequent grand juries from 1887 to 1910 (assuming to do so under the act of 1885) recommended further appropriations for the defendant, to the aggregate amount of $63,800; and the county commissioner levied taxes to make the amount and disbursed the same to the defendant institute. They also levied and collected $2,000 to purchase a sixty-acre farm, which'added to the other levies makes a. total of $64,800 recommended, -levied, collected, and paid over under Color of the act of 1885. The institute did not open a reformatory until 1892, having received appropriations amounting to $15,500, and then it opened with seven negro boys as its sole inmates. When the institute began operations in 1892 it did so with a plant costing $8,028.51, consisting of the sixty-acre farm, equipped with reformatory buildings, farm stock, and all necessary appurtenances ample for one hundred inmates, and had on hand a cash reserve of $7,471.09, and the crop of 1891, the farm being fertile and producing ample food crops and an average cotton crop of forty bales. If the institute had confined itself to the purpose for which it was created, namely, the reformation of the children committed to its custody, it would have been self-supporting; but instead it was subordinated to an extensive and expensive policy of cotton farming and agricultural experimentation, using the labor of the children as a factor in the execution of such policy. In pursuance of such policy it bought 550 acres of cotton and grazing lands at various times from 1893 to 1910, paying therefor $13,972. On one of these farms it conducted a disastrous cattle speculation; it purchased $5,487.69 worth of cattle, placed them on the 300 acres of land, and expended $3,077.41 in feeding them for market, such speculation resulting in a loss of several thousand dollars. (Other speculations are mentioned in the petition, the transactions resulting in loss.) No girls have ever been admitted to the institute, although the act of 1885 makes the reformation of girls- as well as boys its object. The boys were not committed for any heinous offenses, but for minor offenses not involving.the element of malice to person or property, etc. The effect of this practice was almost to empty the reformatory. The act of 1904 was passed to amend the act of 1885, so as to empower the recorder of Augusta to commit minors to the reformatory, for violations of the city ordinances, to terms not exceeding three years. After the passage -of the act of 1904 the commitments to the institute number 214— from the State courts 62; from the recorder’s court 152, or 71 percent., mostly for such petty matters as “chunking,” “loitering,” “playing ball in the street,” the maximum penalty of three years being usually imposed. Various acts of mismanagement and ultra vires acts are alleged as to the management of the institute, which it is unnecessary to mention. The institute has now in its possession the sixty-acre' farm and other lands aggregating 250 acres, of the value of $30,000, and has on hand $6,000 in cash, and about $5,000 in other forms of personalty, all of said realty and personalty representing moneys drawn by the institute from the county' treasury, and being the property of the county. The institute has no property of its own. It refuses to account to the county for the above-mentioned property or any part thereof, claims the same as its own, and is daily wasting it, to the irreparable injury of the-petitioner, etc. On February 6, 1912, the county commissioners of Richmond County, desiring to avoid the necessity of levying what they deemed any further extra tax for supplying revenue to meet certain county indebtedness, decided “that steps be taken at once in the name and on behalf of the County- of Richmond to recover for said county any moneys heretofore drawn from the county treasury without authority of law, and that the chairman of the board secure legal aid to that end.” This case is a result of that action, the counsel so retained “to have a contingent interest in the case.”</p>

Injunction. Before Judge Brand. Clarke superior court. March 31, 1913.

Petition for mandamus. Before Judge Graham. Wheeler superior court. November 29, 1913. Held: was in force in the territory embraced in Wheeler County (being previously a part of Montgomery County) at the date of the creation and organization of the new county.

<p>Indictment for murder. Before Judge Freeman. Coweta superior court. December 31, 1913.</p>

<p>Indictment for murder. Before Judge Patterson. Fannin superior court. December 1, 1913.</p>

<p>Petition for injunction. Before Judge Fite. Dade superior court. October 17, 1913..</p>

<p>Petition for injunction. Before Judge Conyers. Glynn superior court. October 19, 1913.</p>

<p>Petition for specific performance. Before Judge Rawlings. Bulloch superior court. May 2, 1913. '</p>

<p>Petition for injunction. Before Judge Jones. Dawson superior court. August 9, 1913.</p>

Constitutional question; from Court of Appeals (5317). Tbe Court of Appeals certified the following question to the Supreme Court for decision: “Is the act of the General Assembly of Georgia, ‘making it a misdemeanor to obtain food, lodging, or other.accommodations at any hotel, inn, boarding-house or eating-house in this State, with intent to defraud the owner or keeper of the same/ approved August 13, 1910 (Acts 1910, p. 137), unconstitutional and void for any of the…

<p>Petition for injunction. Before Judge Worrill. Early superior court. January 12, 1914.</p>

<p>Indictment for murder. Before Judge James B. Park. Morgan superior court. November 12, 1913.</p>

<p>1. Where a debtor conveyed to his creditor land as security for the debt, and later bargained such land to another, making a bond for title and receiving notes, which he deposited with his creditor as additional collateral security upon a renewal of his note, depositing also deeds to his purchaser in escrow, in a suit by the creditor against the debtor to recover a personal judgment and also to have a lien declared and enforced against the land and against the notes of the proposed purchaser for any deficiency, such purchaser- was a proper, though not a necessary, party.</p> <p>(a) The other grounds of the demurrer were without merit.</p> <p>2. Where a traverse to an entry of service of an equitable petition and process thereto attached showed on its face that the service was compíete, except that the copy of the petition served did not appear to have been signed by counsel for the plaintiffs, the traverse was properly stricken.</p> <p>3. Where, upon notice by a creditor to his debtor of an intention to sue, the latter filed an equitable petition, seeking to enjoin the former from suing, but it did not appear that any restraining order or injunction was granted, or that the creditor in that action sought to obtain judgment or the enforcement of a lien against the security held by him, the mere pendency of the petition filed by the debtor furnished no ground for a plea in abatement to a suit brought by the creditor for the purpose of obtaining such a judgment.</p> <p>4. Where a traverse to service and a plea in abatement filed by a defendant had been stricken and a demurrer to the plaintiff’s petition had been overruled, but no answer had been filed, if an amendment had been made to the petition which materially changed the cause of action, this would have opened the petition as amended to answer; but the making of an immaterial amendment would not have that effect.</p> <p>(a) The amendment made in the present case, by attaching to the petition as exhibits copies of certain papers which had already been referred to or described therein, and which, when attached, did not in any way change the cause of action, did not open the whole petition as amended to an answer, where none had been previously filed.</p> <p>5. Under the circumstances of this case, it will not require a new trial, at the instance of the principal defendant, that the presiding judge directed a verdict for the principal and interest of the note on which the suit was brought, leaving to the jury only the question of the service of a notice of intention to sue in order to recover attorney’s fees specified in the note, as required by the statute.</p> <p>(a) Nor, under the facts of the case, will a reference, in the judge’s charge, to the defendant’s presence in the court-room and failure to testify, as being a matter for consideration by the jury, require a reversal.</p> <p>6. After a verdict has been received and published, and the jury have dispersed, and a considerable time has elapsed, the presiding judge can not amend the verdict in a matter of substance.</p>

<p>Petition for injunction. Before Judge Bell. Douglas superior court. November- 15, 1913.</p>

<p>Injunction. Before Judge Thomas. Tift superior court. September 25, 1913.</p> <p>The alleged nuisance against which injunction was sought consisted in putting the public roads and bridges to the extraordinary-use of hauling over them large sawmill logs on two-wheeled carts, whereby the roads were being cut into ditches and gullies and the bridges broken, necessitating frequent repairs. The defendant denied that his hauling was the cause of the condition of the roads, and that Ms carts had broken the bridges except on one or two occasions when a guard-rail had been knocked from its position. He set up that the bad condition of the roads and bridges was due to the failure of the county authorities to do their legal duty. There was conflicting testimony at the hearing.</p>

<p>Habeas corpus. Before Judge. Hawkins. Laurens-superior court.' July 29, 1913. . . .</p>

<p>The individual property of an administrator is not subject to the lien of a judgment de bonis testatoris, rendered against him in his representative character.</p>

Injunction. Before Judge Matbews. Bibb superior court. October 13, 1913. Held: and a resolution was declared adopted to amend the charter in effect as indicated above, and duly entered on the minutes. At the stockholders’ meeting it was declared that 6382 1/3 shares of the capital stock were voted in favor of amending the charter; and none appear to have been voted against it.

<p>Injunction. Before Judge Mathews. Bibb superior court. November 22, 1913.</p>

<p>Indictment for murder. Before Judge James B. Park. Jones superior court. December 13, 1913.</p>

<p>Indictment for murder. Before Judge Jones. Hall superior court. January 8, 1914.</p>

<p>Indictment for murder. Before Judge Hammond. ' Jenkins su-. perior court. December 18, 1913.</p>

<p>Temporary alimony. Before Judge Hammond. Biehmond superior court. July 10, 1913.</p>

<p>Claim. Before Judge Daniel. Henry superior court. June 26, 1913.</p>

<p>Mandamus. Before Judge Charlton. Chatham superior court. December 10, 1913.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. January 16, 1914.</p>

<p>Indictment for murder. Before Judge Matbews. Bibb superior court. January 31, 1914.</p>

<p>Application to change venue. Before Judge Eeid. Newton superior court. March 24, 1914.</p>

<p>Action for damages. Before Judge Maddox. Floyd superior court. January 17, 1913.</p>

<p>Equitable petition. Before Judge Edwards. Polk superior court. February 26, 1913.</p>

<p>Habeas corpus. Before Judge Bell. Fulton superior court. September 27, 1913.</p>

<p>Questions certified by Court of Appeals (5139).</p>

<p>Equitable petition. Before Judge Eite. Whitfield superior court. January 25, 1913.'</p>

<p>„v Habeas corpus. Before Judge Littlejohn. Stewart superior court: November 18, 1913.</p>

<p>Receivership. Before Judge Bell. Campbell superior court. April 10, 1913.</p>

<p>The act of the General Assembly, approved August 11, 1913 (Acts 1913, p. 438), “authorized and required” the Board of Commissioners of Roads and Revenues of Sumter County to work the county chain-gang of that county upon the streets of the City of Amerieus for not exceeding three months in each year, using in such work, if necessary, everything pertaining to the convicts and to the road equipment; the work to be done at such times as may be suitable to the board and at such places as may be designated by the mayor and city council; the streets to be worked and graded under the direction of such person or persons as “are so authorized” by the city; the city not to pay any part of the expense of maintaining the county convicts. At the time of the passage of this act, the general “alternative road law” (Civil Code, §§ 694 et seq.) was in force in Sumter county, and the act of 1908 (Penal Code, §§ 1207 et seq.) was also in effect. Held, that the special act of August 11, 1913, above referred to, is unconstitutional and void because violative of the constitutional provision declaring that no special law shall be enacted • in any case for which provision has been made by an existing general law.</p>

<p>Petition for injunction. .Before Judge Thomas. Berrien superior court. August 2, 1913.</p>

<p>Complaint. Before Judge Daniel. Pike superior court. August 1, 1913.</p>

<p>1. While a carrier of passengers may.not be held to so high a degree of care in the matter of providing and maintaining stational facilities as in the act of transportation, it is the duty of such carrier to use extraordinary diligence in protecting the safety of a passenger in alighting from its carriage at a place selected by it for the passenger to alight. ' In determining whether this degree of diligence has been exercised, the safety of such place for alighting under the circumstances may be considered with the other facts of the case.</p> <p>2. The instruction relative to the diminution of damages where the plaintiff was to some extent negligent, though inaccurate, will not require ■ a new trial under the facts of the ease.</p> <p>3. A ground of negligence was the alleged failure of the carrier to provide a reasonably safe place for a passenger to alight at night, without a light, on account of the distance from the car step to the ground. It appeared in evidence that the surface of the ground where the injury was alleged to have occurred was afterwards elevated by the carrier. Under such circumstances the defendant has no real ground of complaint that the court instructed the jury that they would not be authorized to find from this act of repair “that the defendant was negligent as to the safety of the alighting place at the time of the occurrence.”</p> <p>4. It is not error to fail to charge that if the plaintiff and defendant are equally at fault no recovery can be had, in the absence of a pertinent written request.</p> <p>5. The verdict is not excessive; it is supported by the evidence; and no sufficient reason appears for the grant of a new trial.</p>

<p>Action for specific performance. Before Judge Patterson. Cobb superior court. May 8, 1913.</p>

<p>Action for damages. Before Judge Patterson. Fannin superior court. May 28, 1913.</p>

<p>Complaint. Before Judge Fite. Dade superior court. February 3, 1913.</p>

<p>Certiorari. Before Judge Fite. Murray superior court. February 13„ 1913.</p>

<p>Equitable petition. Before Judge Fite. Catoosa superior court. April 18, 1913.</p>

<p>Action for damages. Before Judge Fite. Murray superior court. February 12,1913.</p>

<p>Action for damages. Before Judge Fite. Murray superior court. May 13, 1914.</p>

<p>Equitable petition. Before Judge Fite. Murray superior court. May 16, 1913.</p>

<p>Intervention. Before Judge Fite. Bartow superior court. December 18, 1912.</p>

Complaint. Before Judge Edwards. • Bartow superior court. June 30, 1913. The Bank of Cartersville brought suit, in Bartow superior court,, against Albert Strickland and George W. Brooke on a promissory note dated Atlanta, Georgia, February 10, 1906, due six months after date, for the principal sum of $7,500, with interest at six per cent., signed by the defendants and payable to'the-order of the Etowah Milling Company.

<p>Complaint. Before Judge Edwards. Bartow superior court. June 30, 1913.</p> <p>The Bank of Cartersville brought suit against the Biverside Milling and Power Company as maker, and George W. Brooke and A. Strickland 'as sureties, on three promissory notes aggregating the principal sum of $2,493.00. The defendants answered the petition, and subsequently offered an amendment. On objection the first eight paragraphs of the amendment and a part of the ninth were rejected, and the defendants filed exceptions pendente lite. A demurrer to the original answer was sustained as to paragraphs 7, 8, and 9 thereof, and exceptions pendente lite were filed. On the trial (as recited in the bill of exceptions) the jury found for the plaintiff $2,493.95 principal, $181.78 interest, and $267.59 attorney’s fees. The defendants moved for a new trial. The motion was overruled, and the defendants excepted. So far as necessary, the other material facts are stated in the opinion.</p>

<p>1. An owner of property which had been destroyed by fire brought suit against a railroad company, alleging in substance as follows: The fire was negligently set out by an engine of the defendant. The property had been insured in certain non-resident insurance companies, which had paid the amounts for which they were respectively liable. Each policy contained a provision that in ease the property should be destroyed by fire occasioned by the negligence of another, upon payment of the loss the insurance company should be subrogated, to the extent of such payment, to all right of recovery which the insured had on account of such loss, and that such right should be assigned to the company upon making payment of the loss. When each 'of the insurance companies made payment upon the loss, a contract was entered into by which the insured, in acknowledging receipt of the payment, agreed to assign, set over, and transfer to each insurance company all of the right, claim, and interest of the insured to the extent of such . payment, and subrogate it thereto. The insured, a corporation, for the use of the insurance companies, brought suit against the railroad company for the loss occasioned1 by the fire. The insured was a resident of Georgia. The railroad company was a corporation of Virginia. Held; that the defendant was entitled to remove the case to the circuit court of the United States on the ground of diversity of citizenship, without regard to the residence of the insurance companies.</p> <p>2. The ease of Wortsmam V. Wade, 77 Ga. 651 (4 Am. St. R. 106), was based upon a suit on a forthcoming’ bond given in a claim case, and was dependent upon the statutes regulating eases and bonds of that character, and not upon the general law in regard to the residence of the persons named as beneficiaries of a suit brought by an indispensable party plaintiff.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. August 2, 1913.</p>

Equitable petition. Before Joseph E. Pottle, judge pro hae vice. Greene superior court. January 28, 1913. The petition of Joseph B. West and others against W. P. Mc-Whorter showed substantially the following facts: Petitioners are the children and heirs at law of John J. West, who died intestate in May, 1899. On January 1, 1874, John J. West owned 115 acres of land in Greene county, Georgia, the subject-matter of this suit.

<p>Claim. Before Judge Maddox. Floyd superior court. January 17, 1913.</p>

<p>Complaint. Before Judge James B. Park. Baldwin superior court. August 15, 1913.</p>

<p>1. A motion for continuance on the ground of .counsel’s illness, like all other motions of the same nature, is addressed to the sound discretion of the court. When counsel whose illness is the ground of the motion is in court, and personally makes the motion, the court may take into consideration his physical appearance and the mental and physical vigor . displayed in making the motion, in determining whether the ends of justice require a continuance of the case. Where such a motion is overruled, and the ease is conducted to a conclusion by the same counsel, and’ the court certifies that the case was managed by counsel with his usual ability, the reviewing court can not say that the trial court, abused his discretion in refusing to continue the’case on this account.</p> <p>2. In an issue joined upon a traverse to an attachment on the ground that the debtor absconds, it is competent to inquire into such of the defendant’s acts and transactions, at the time the attachment issued, as would serve to illustrate his purpose in leaving the place of his residence; whether with intent to return or conceal himself from his creditors. Testimony that he had procured two of his neighbors to indorse his notes for his accommodation, and left his place of residence about the time they fell due at a bank, without their knowledge, is relevant to the issue formed on the traverse.</p> <p>3. That the other creditors of the alleged absconding debtor may have sued out attachments against him was irrelevant; but the reception of this evidence under the facts of the case will not require a new trial.</p> <p>4. Where the attorney for a debtor testifies in favor of his client concerning the circumstances under which the debtor left his place of residence, it is relevant on cross-examination to show by him that he represents other creditors of the defendants who would gain an advantage in case the traverse was sustained.</p> <p>5. On the issue of whether a debtor was absconding at the time of the issue of an attachment against him, it is relevant to show the publicity or secrecy of his living at a different place a short time after leaving his former residence.</p> <p>6. The verdict is warranted 'by the evidence.</p>

<p>1. “Beiore heirs at law of a deceased intestate can recover land which had belonged to the estate of such intestate, they must allege and prove that there was no administration on the estate, or that the administrator, if there was one, assented to their bringing the suit.” “The best method of proving that no administration was ever had upon a particular estate is to introduce the evidence of the ordinary, or of another who has examined the records in the court of ordinary where letters of administration should have been granted, that no such letters are shown by those records.”</p> <p>2. An unascertained or disputed boundary line between coterminous proprietors may be established either by oral agreement, if the agreement be accompanied by actual possession to the agreed line or is otherwise duly executed; or by acquiescence for seven years by the acts or declarations of owners of adjoining land, as provided in the Civil Code (1910). § 3821. When a line has been located and established by seven years acquiescence, as required by the code, the line thus located, and established is binding on the grantees of the coterminous proprietors.</p>

<p>Complaint for land. Before Judge Thomas. Colquitt superior court. July 1, 1913.</p>

<p>It is error to direet a verdict upon conflicting evidence.</p>

<p>Complaint. Before W. M. Lewis, judge pro hac vice. Montgomery superior court. February 8, 1913.</p>

<p>Claim. Before Judge Graham. Montgomery superior court. May term, 1913.</p>

<p>Probate ' of will. Before Judge Hawkins. Laurens superior court. April 24, 1913.</p>

<p>Complaint for land. Before Judge Conyers. Camden superior court. May 24, 1913.</p>

<p>Eviction. Before Judge Conyers. Appling superior court. May 10, 1913.</p>

<p>Eviction. Before Judge Conyers. Appling superior court. May 24, 1913.</p>

<p>Petition for injunction. Before Judge Bell. Eulton superior court. October 20, 1913.</p>

<p>Claim. Before Judge Coiners. Camden superior court. May-24, 1913.</p>

Petition for injunction. Before Judge Pendleton. .Fulton superior court. December 19, 1913. Daniel Brothers Company, a corporation, was engaged, in the business of men’s furnishings, clothes, shoes, hats, etc., in the retail district of the City of Atlanta.

<p>Injunction. Before Judge Pendleton. Fulton superior court. December 15, 1913.</p>

<p>Equitable petition. Before Judge Boan. Bockdale superior court. March 29, 1913.</p>

<p>Injunction, etc. Before Judge Bawlings. Bulloch superior court. October 25, 1913.</p>

<p>Claim. Before Judge Sheppard. Tattnall superior court. April 30, 1913.</p>

<p>Illegality of execution. Before Judge Sheppard. Tattnall superior court. April 16, 1913.</p>

<p>Claim. Before Judge Sheppard. Liberty superior court. May 21, 1913.</p>

<p>Validation of municipal bonds. Before Judge Meadow. Franklin superior court. October 29, 1913.</p>

Equitable petition. Before Judge Wright. Walker superior court. May 3, 1913. Mrs. Archie Smith and several other plaintiffs, as heirs of J. 'A. Smith, deceased, filed their equitable petition against 0..

<p>Complaint for land. Before Judge Daniel. Pike superior court. December 7, 1912.</p>

<p>Money rule. Before Judge Daniel. Henry superior court. May 31, 1913.</p>

<p>Writ of error from Fayette superior court. Motion to dismiss.</p>

<p>Equitable petition. Before Judge J ames B. Park. Baldwin superior court. January 24, 1913.</p>

<p>Condemnation of land. Before J. E. Pottle, judge pro bac vice. Jasper superior court. January 23, 1913.</p>

<p>Lien foreclosure. Before Judge James B. Park. Hancock superior court. March 24, 1913.</p>

<p>Action for damages. ' Before Judge James B. Park. Wilkinson superior court. April 9, 1913.</p>

<p>Eviction. Before Judge Conyers. Camden superior court. April 8, 1913.</p>

<p>Habeas corpus. Before Judge Bell. Fulton superior court. September 29, 1913. , . .</p>

<p>Habeas corpus. Before Judge Bell. Fultou superior court. October 4, 1913.</p>

Petition for mandamus. Before Judge Sheppard. Liberty superior court. May 20, 1913. On March 27, 1913, J. H. Mattox applied for the writ of mandamus to compel the board of education of Liberty county to approve his official bond as county superintendent of schools of that county.

<p>Indictment for rape. Before Judge James B. Park. Wilkinson' superior court. December 15, 1913.</p>

<p>Injunction. Before Judge Hammond. - Jenkins superior court. October 13, 1913.</p>

<p>Action for damages. Before Judge Bite. Whitfield superior court. August 20, 1913.</p>

Certified questions; from Court of Appeals. Case No. 5127. “An ordinance of tbe City of Cordele laid a tax of one hundred dollars upon each and every telegraph company for business done exclusively within the City of Cordele, not including any business done to or from points from without the State of Georgia, and not including any business done for the government of the United States, its officers or agents.

<p>Indictment for murder. Before Judge Cox. Turner superior eourt. February 28, 1914.</p>

<p>Indictment for murder. Before Judge Thomas. Lowndes superior court. February 21, 1914.</p>

<p>Indictment for murder. Before Judge Fite. Whitfield superior court. March 2, 1914.</p>

<p>Indictment for murder. Before Judge Tbomas. Colquitt superior court. February 28, 1914.</p>

<p>Indictment for murder. Before Judge Hill. Fulton superior court (venue changed from Jefferson county). February 28, 1914.</p>

<p>Injunction. Before Judge Wright. Floyd superior court. February 2, 1914.</p>

<p>Money rule. Before Judge Fite. Gordon superior court. April 9, 1913.</p>

<p>Equitable- -petition. -Before Judge Maddox. Eloyd superior court. January 20, 1913.</p>

<p>Buie for contempt. Before Judge Wright. Floyd superior court. January 17, 1913.</p>

<p>Claim. Before Judge Freeman. Heard superior court. June U, 1913.</p>

<p>Injunction. Before Judge Patterson. Cobb superior court. December 18, 1913.</p>

<p>Complaint for land. Before Judge Edwards. 'Douglas superior court. February 6; 1913.</p>

<p>Eviction. Before Judge Edwards. Polk superior court. June •16, 1913.</p>

<p>Distraint. Before Judge Freeman. Troup superior court. January 9, 1913.</p>

<p>Complaint. Before Judge James B. Park. Hancock superior court. March 24, 1913.</p>

<p>Trover. Before Judge Patterson. Gilmer superior court. July 11, 1913.</p>

<p>Certiorari. Before Judge Fite. Catoosa superior court. February 6, 1913.</p>

Equitable petition. Before J. M. Hunt, judge pro hae vice. Eloyd superior court. July 3, 1913. Mrs. Medora E. Howland gave the Exchange Bank of Rome two mortgages on a parcel of land situated in the city of Rome and known as the JfToll House and Lot,” described by metes and bounds, to secure respectively two debts owing by her to the bank, one for $1,000 principal and interest, and the other for $500 principal and interest.

<p>Petition for certiorari. Before Judge Fite Murray superior court. February 27, 1914. •</p>

<p>Even if the evidence of the plaintiff himself was sufficient to make out a prima facie case against the defendant railroad company, the uncontradicted evidence submitted in its behalf showed that its agents operating the locomotive which ran against and injured the plaintiff were exercising all reasonable and ordinary care at the time. Accordingly it was not error to direct a verdict for the company.</p>

<p>Exceptions to auditor’s report. Before Judge Daniel. Pike' superior court. July 17, 1913.</p>

<p>1. A suit to recover damages to realty must-be brought within four years after the right of action accrues.</p> <p>2. Where an action of trespass was brought against a railroad corporation in 1911, to recover damages for appropriating for a right of way certain land belonging to -the plaintiff, and the petition alleged that in -the year 1901 the corporation had built its road on the land and held it for a railroad right of way, to the injury and damage of the plaintiff in a . certain sum, such petition was subject1 to a demurrer which recited that the petition showed on its face that the plaintiff’s cause-of action, if any lie ever had, was barred by the statute of limitations, the same being alleged to have occurred more than four years before the filing of the suit.</p> <p>3. The cases of A. é G. B. Go. v. Fuller, 48 Ga. 423, and Co65 v. W. <6 T. B. Go., 129 Ga. 377 (58 S. E. 862), distinguished.</p>

Complaint. Before Judge Patterson. Pickens superior court. April 8, 1913. P. B. G. Clark brought suit against P. M. Cagle. The allegations of the petition as amended were in substance as follows: On the 26th day of February, 1910, the plaintiff and the defendant entered into and signed the following written contract: State of Georgia, Greene County. White Plains, Georgia, February 26th, 1910.

<p>Trover. Before Judge Edwards. Douglas superior court. June 17, 1913.</p> <p>W. A. Webb and the American Whip Company brought an action against the Southern Bailway Company, to recover a trunk containing buggy-whips, “to which property your petitioners claim title.” It was alleged that the defendant “refused to deliver the above-described property to your petitioners, or to pay the profits thereof.” The' defendant, in its answer, admitted that it was in possession of the property, but did not make any denial of its ownership by the plaintiffs. It admitted that it refused to deliver the property to the plaintiffs, for the reason that the trunk was delivered to the defendant by the “Atlanta Transfer Company,” which lately had possession, and which claimed a charge of 75 •cents for storage, and delivered it to the defendant “to be delivered to the plaintiffs upon payment of said storage charges.” The answer alleged also, that, when Webb applied for the property, the defendant’s agent offered to deliver it upon the payment of the storage charge “as instructed by said Terminal Company,” but he refused to make such payment, and thereupon the defendant refused to deliver the property. The defendant further averred that it had never absolutely refused to make delivery, but had always been ready to do so upon payment of the storage charges due to the Terminal Company, and it offered in the answer to make the delivery upon payment of such charges, and upon further charges of $3.45 storage claimed to be due to it'being paid.</p> <p>The evidence on behalf of the plaintiffs tended to show the following, among other things: Webb checked a trunk containing buggy-whips from Clayton, Ga., to Suwanee, Ga., with the intention of going thence to Lawrenceville. The whips were used as samples in making sales. On his arrival at Suwanee the trunk was not there. He “took the matter up with” the agent, who promised that he would telegraph that night 'and get the whips for Webb on the evening train. They did not arrive, and Webb remained over until morning, after a train had come from Atlanta, and also one from the direction whence he came. He discussed the matter with the agent, who agreed that he would send the trunk to Lawrenceville, so that Webb might go on from there to another town mentioned, and, if the whips did not arrive in time to be sent to Lawrenceville, that they would be sent to another named town. He proceeded to Lawrenceville by a narrow-gauge road running between it and Suwanee. The whips were not sent to that place. After going to one or two other places, he wrote to his wife in Atlanta; and upon inquiry she found the whips in the terminal station at that point. About eight days later, he arrived in Atlanta, went to the terminal station, and demanded The property. The agent refused to deliver it to him without payment of storage charges, which he declined to make. He had not authorized the whips to b"e sent to Atlanta. The check attached to the trunk, showing Suwanee to be its destination, had been changed so as to make Atlanta the terminal point. Webb went to Douglasville, and caused the agent at that point to send a telegram to Atlanta in regard to the trunk. It was then sent to that point with a check attached showing that it was to be delivered on payment of the charges for storage. The agent refused to deliver it without such payment, and the suit was then brought.</p> <p>The evidence for the defendant tended to show the following, among other facts: When the whips did not arrive at Suwanee on the same train with Webb, he told the agent at that point, if they should arrive in time, to send them to Lawrenceville, and, if not, to send them to Atlanta. They did not arrive in time to be sent to Lawrenceville, and accordingly the agent had the check changed so as to have the trunk carried to Atlanta. The railroad from Suwanee to Lawrenceville is not a branch road of the Southern Railway, or physically connected with it, the tracks being about fifty yards apart. The Southern Railway did not transfer baggage from one road to another, but it was transferred by two porters who were working for themselves. The agent at Suwanee told Webb he would transfer this baggage to go to Lawrenceville, if it arrived in time for that purpose; and if it did not do so, that he would send it to Atlanta. The agents of the Southern Railway transferred things to the railroad running to Lawrenceville every day, making arrangements with the porters for the transfer, the interested parties paying the porters. Four or five days after the whips had been received in Atlanta, the wife of Webb made inquiries about them, and was informed that she could get them by paying the storage, which she declined to do, saying that the package had been lost, rand that she would tell her husband and let him come and get the whips. In a day or two the trunk was ordered by telegraph to be sent to Douglasville, and was sent to that point, to be delivered, on payment of the storage charge. The defendant introduced in evidence a rule, known as rule number thirty of the joint baggage tariff number 2, included in a book which contained the baggage tariff of the Southern Eailway Company. It stated that the carriers which were parties thereto did not guarantee to. forward baggage or other property to its destination on the same train with the passenger, or within a given or specified limit, and reserved the right to forward baggage on the same train with the passenger, or upon a preceding or following train, as the exigencies of each case might require. It also made provision for cases in which a passenger might fail to have his baggage checked before boarding the train, and might desire to have it forwarded. Another rule, known as rule number 33, from joint baggage tariff number 2, was introduced, which provided for the holding of baggage for 24 hours without storage charge, and for the amount of charge to be made after that time. The defendant also introduced rule 5 of the Georgia Eailroad Commission, which authorized a storage charge where baggage was not checked within 24 hours after being received, or was allowed to remain unclaimed at destination for more than that time; and rule 6, which declares that railroad companies shall not be required to send any baggage on any train unless such baggage shall have been checked fifteen minutes before the departure of the train.</p> <p>The plaintiffs elected to take a money verdict. The jury found for them $98.63. The defendant moved for a new trial, on the grounds that the verdict was contrary to law and evidence, and without evidence to support it. The motion was overruled, and the defendant excepted.</p>

Complaint. Before Judge Worrill. Early superior court. January 27, 1913. W. E. Bostwiek brought suit against S. S. Timmons, to recover for an alleged breach of a contract by the defendant to sell and deliver to the plaintiff twenty bales of cotton. The contract was alleged to have been made by means of the following writings: “I have this day sold to W. E. Bostwiek 20-b/c. at 10% cents round f. o. b. cars Arlington, Ga.

Action for damages. Before Judge Fite. Whitfield superior court. April 8, 1913. Grady Bowen filed bis petition for damages against tbe Smith-Hall Grocery Company. The petition as amended alleged, in substance, as follows: The Smith-Hall Grocery Company is a partnership doing business in the city of Dalton.

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

<p>Equitable petition. Before Judge Fite. Bartow superior court: July 5, 1913.</p>

<p>L Where three persons were jointly indicted for murder, and one of them was first tried separately, and a panel of forty-eight jurors was put upon him, from which twelve jurors were selected, and the other thirty-six were excluded from the court-room and heard none of the evidence; and where, upon the conclusion of this trial, the other two persons in-dieted were placed on trial together, and a panel of jurors was put upon them which included the thirty-six jurors who had not tried the previous ease, and who had been excluded from the court,-room, but not those who had tried the previous case, this did not furnish a ground for challenge to the array on the ground that the whole panel put upon the accused was thereby rendered incompetent.</p> <p>(a) It does not appear that less than a full panel of jurors was put upon the accused, nor was any error assigned on that ground.</p> <p>‘(h) If there was any objection to individual members of the panel, this furnished ground for challenge to the polls, not to the array.</p> <p>(c) The sixth ameiidment to the constitution of the United States has no relevancy to an occurrence of the character above mentioned, on a trial in a State court.</p> <p>(d) The method-of procedure mentioned involved no violation of the fourteenth amendment to the constitution of the United States.</p> <p>2. Where three persons were jointly indicted for murder, if a prima facie ease of conspiracy among them was shown, either by direct or by circumstantial evidence, testimony as to the acts and declarations of one of them, during the pendency of the criminal project and connected therewith, was admissible against the other two, although they were tried separately.</p> <p>(a) The evidence tending to show a conspiracy among the three persons who were jointly indicted, to kill the man who was slain, was sufficient to authorize the testimony in regard to the acts and declarations of one of them to which objection was made, and also to authorize a charge submitting ultimately to the jury whether or not there was a conspiracy, and instructing them that if there was none to disregard such evidence. (Atkinson, J., dissents from the ruling announced in the subdivision immediately preceding.)</p> <p>3. There was no error in admitting evidence to show that one of the defendants on trial had made conflicting statements as to the manner in which the homicide was committed, some of which did not accord with his statement on the stand.</p> <p>4. Charges given at the request or insistence of counsel for the defendant furnished no ground for granting a new trial at his instance.</p> <p>5. While section 71 of the Renal Code of 1910, in dealing with the subject of reasonable fears as a ground of defense on a trial for homicide, use8 the expression “the fears of a reasonable man,” the employment of the expression “as reasonably courageous and self-possessed men,” in instructing the jury, does not furnish cause for a new trial.</p> <p>6. The verdict was supported by the evidence, and none of the grounds of the motion for a new trial require a reversal.</p>

<p>1. Where an application is made, by one accused of crime, for a change of venue on the ground that an impartial jury can not be obtained, the law devolves on the trial judge the duty and responsibility of making an . examination and informing himself of the truth of the averments in the application; and where after hearing evidence the trial court is satisfied that a fair and impartial jury may be had in the county where the crime is alleged to have been committed, this court will not reverse his judgment refusing to change the venue, unless it is made to appear that there has been an abuse of discretion.</p> <p>(a) There was no abuse of discretion in refusing to change the venue.</p> <p>2. The motion to continue did not measure up to' the requirements of Penal Code § 987, and the court did not err in refusing to continue the case.</p> <p>3. On a trial for murder, a previous difficulty between the defendant and the deceased two weeks' prior to the homicide is relevant as shedding light on the occurrence resulting in the homicide, and as illustrating the motive of the defendant.</p> <p>4. A party can not obtain a reversal for an error which he has invited, as by a request to charge.</p> <p>5. The evidence authorized a charge on the subject of conspiracy; the charge of the court was fair and comprehensive; the evidence authorized the verdict; and the newly discovered evidence, purely impeaching and cumulative in character, is not such as would likely produce a different result on another trial. The verdict is approved by the trial judge, and no sufficient cause is made to appear for the grant of a new trial.</p>

<p>Injunction. Before Judge Pendleton. Fulton superior court. September 24, 1913.</p>

<p>Petition for injunction. Before Judge Reid. DeKalb superior •court. March 14, 1914.</p>

Action, for damages. Before Judge Patterson. Cobb superior court. May 7, 1913. Cam Atkins brought suit against the Western and Atlantic Bail-road Company, to recover for an injury to himself, resulting from a collision with a train. The defendant pleaded accord and satisfaction, setting up a written release from the plaintiff for all the damages arising from the occurrence in question, in consideration of fifty dollars.

Petition for injunction. Before Judge Hammond. Richmond superior court. September 6, 1913. The City Council of Augusta instituted proceedings to acquire by condemnation a fee-simple title to certain real property in the' City of Augusta, Georgia, belonging to M. O’Dowd’s Sons & Company, and served notice upon the owners.

Mandamus. Before Judge Charlton. Chatham superior court. August 15, 1913. James M. Dixon filed a petition for a mandamus against the Central of Georgia Railway Company, upon which the court issued a mandamus nisi.

<p>1. The court erred in that portion of its order which in substance regulates the proportion of space in ships belonging to the defendant company devoted to offerings of lumber for shipment at the ports of Jacksonville and Savannah. Such an order was in effect a regulation of interstate commerce.</p> <p>2. The court erred further in granting an order enjoining the defendant from receiving and carrying, for other shippers at the port of Savannah, lumber which has not been physically tendered to it at its place or depot maintained for receiving'the same, in preference to lumber of the plaintiff actually and physically tendered at such place; because this injunctive order is not in accord with the decision of this court upholding the regulation or, practice of booking or of making specific engagements of space in advance of shipment, where public notice is given by the carrier that it will book the freight of all patrons and impartiality of service is observed.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. August 2, 1913.</p>

<p>Injunction. Before Judge Wright. Floyd superior court. November 5, 1913.</p>

<p>' Petition for injunction. Before Judge Daniel. Butts superior court. June 23. 1913.</p>

<p>Action upon insurance policy. Before Judge Gilbert. Muscogee superior court. February 4, 1913.</p>

<p>Ejectment. Before Judge Gilbert. 'Muscogee superior court. July 2, 1913.</p>

Before Judge Littlejohn. Lee superior court. July 10, 1913. TV. Held: and enjoyed by each of them during his natural life; that, after the death of either the said Garnett A. Sneed or James Benton Cock, his wife and children shall take and receive his share, to be equally divided between them, in fee simple; and in case either of them shall die without wife or children, his share shall be equally…

<p>Indictment for rape. Before Judge George. Dooly superior court. March 14, 1914.</p>

<p>Indictment for murder. Before Judge Conyers. Glynn superior court. ■ March 21, 1914.</p> <p>Dan Brown was indicted for the murder of James Williams. On the trial the evidence tended to show the following, among other things: The defendant had maintained illicit relations with one Susan Hopkins. On February 12, 1911, he married. Thereafter Williams succeeded him as the paramour of Susan Hopkins. Later .-the accused sought to renew his relations with the woman, but she refused to permit it. He inquired as to who was associating with her, and she declined to tell him. He said that he knew she was going with somebody, that if she did not go with him she could not go with anybody, and that he would kill her if she did not go with him. This occurred about three weeks before the homicide. On the night of the killing Williams went to the house of the woman and remained with her about an hour or an hour and a half. While he was there the accused came to the front door and knocked. The woman went to the door, and the accused asked her to come out on the front porch, which she declined to do. He said that if she did not do so she would be sorry for it. She slammed the door and locked it. After this she heard a noise under the house, but thought it was a neighbor’s goat. In about ten or fifteen minutes Williams started to leave. After tbe door was opened he stood in it for a few minutes. Some one, standing about twenty-five or thirty feet away,- fired 8 weapon, killing Williams. Susan Hopkins testified that’ she did not know who the man was, but he looked to her like the accused. There was also evidence of incriminatory statements or confessions made by the accused, and other evidence unnecessary to state in detail. The jury found the accused guilty. A new trial was refused, and the Case was brought to this court by writ of error. The judgment was affirmed. 141 Qa. 5 (80 S. E. 320). After this the accused made an extraordinary motion for a new trial, to which an amendment was subsequently made. It was based on the newly discovered evidence of three witnesses: (1) One Pinkney Taylor made an affidavit to the effect, that a colored man by the name of Will Symmons, with whom she was well acquainted, went to her house a little after midnight on the night of the homicide, knocked at her door, and asked her to give him a box of matches; that he had a gun in his hand, and when she asked him why he had it, he stated that he had shot Williams at the house of Susan Hopkins; and that he asked her to lend him a little' money in order that he might get away from the officers, as he was going to leave the place. (2) One Lula Flowers made an affidavit to the effect, that Will Symmons had been renting a room from the. deponent for about thirty days before the homicide and had been living there; that he had often spoken to her with reference to' Susan Hopkins as being his best friend; that about six o’clock on the evening of the homicide he left her house and stated that he was going to the house of Susan Hopkins; that about half past twelve o’clock that night he went to the house of the affiant, carrying a shotgun, and tried to borrow money from her; that he was in an excited condition; that he stated that he had had some trouble with a man named Jim, who had tried to run over him at the house of the Hopkins woman, and he needed some money; that he offered to leave the’ gun on deposit with her for two dollars; and that he only remained at her house a short time, saying as he left that he was going to New York. (3) One Eliza Harden made an affidavit to the effect, that immediately prior to the homicide it was common talk among the people that Will Symmons, a colored man, was visiting Susan Hopkins; that while Susan Hopkins and Dan Brown were in jail shortly after the homicide, but before the committing trial, Selina Williams, the mother of the deceased, in talking with the 'affiant, said, that, before the killing of her son, he and Will Symmons had had a “fracas” at the house of Susan Hopkins, and that she (Selina) had told him not to take his meals over at the house of Susan Hopkins. There were also affidavits for the purpose of showing the credibility of these witnesses, 'and that the new evidence only came to the knowledge of the accused and his counsel after his conviction, and without laches on their part.</p> <p>On behalf of the State affidavits in rebuttal were introduced. Lula Mowers repudiated the statement of facts contained in her former affidavit, and testified that it was procured from, her by fraud and a pretense that she was signing a paper of an entirely different character. Susan Hopkins made an affidavit, that she knew only one man bearing the name of Will Symmons; that she had not seen him for about a year before the homicide; that she had no knowledge of his being anywhere about her house on the night of the killing; that he had nothing to do with it; and that he and Williams never had a difficulty at her house at any time. Selina Williams made an affidavit to the effect, that she did not know any person named Eliza Harden; that at no time did she ever make a statement to the effect that her son had a difficulty at the house of Susan Hopkins prior to the killing, or that she told her son not to take his meals there; that no.such occurrence took place; and that she never saw Will Symmons.</p> <p>There were some other affidavits, which it is unnecessary to meni tion in detail. The presiding judge overruled the motion, and the movant excepted.</p>

<p>Indictment for murder. Before Judge Mathews. Bibb superior court. April 14, 1914.</p>

<p>Petition for injunction. Before Judge Jones. Babun superior court. March .4, 1914.</p>

<p>¡ 'Temporary alimony. Before Judge Fite. Whitfield superior ‘court April 8, 1914.</p>

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

<p>Claim. Before Judge Fite. Whitfield superior court. August 2,- 1913.</p>

<p>Complaint for land. Before Judge Worrill. Early superior court. April 10, 1913.</p>

<p>Equitable petition. Before Judge Thomasi Berrien superior court. June 14, 1913.</p>

<p>■ Forfeiture of recognizance. Before Judge Rawlings. Emanuel superior court. July 25, 1913.</p>

<p>Injunction. Before Judge Conyers. Glynn superior court. February 4, 1914.</p>

<p>Complaint. Before Judge Wright. Chattooga superior court. April 21, 1913.</p>

<p>Equitable petition. Before Judge Edwards. Haralson superior court. January 23, 1913.</p>

<p>A contractor applied to the owner of the premises for the payment of a specific sum of money on their building contract, and the owner notified a materialman, who had furnished the contractor material which was used in the improvement of the owner’s premises, that such payment was requested,' and that she would not pay the contractor unless she had authority from the materialman. Thereupon the materialman authorized her to pay the contractor the sum requested, which she did. Held, that the materialman will be estopped from asserting his lien as against the owner upon the improved property, to the extent of the sum paid to the contractor.</p>

<p>Action upon bond. Before Judge Sheppard. Tattnall superior •court. January 10, 1913.</p>

Application to change venue. Before Judge Quincey. Coffee superior court. April 7, 1914. , . Charlie Graham was charged with the offense of murder, and incarcerated in the county jail of Coffee county. On April 6, 1914, he made a motion for a change of venue, under the act of August 21, 1911 (Acts 1911, p. 74).

Quo warranto. Before Judge Sheppard. Liberty superior court. ■April 7, 1914. In January, 1914, an election for mayor and councilmen of the Town of Ludowici was held. J. B. Simpson and T. E. Chapman were among those declared elected aldermen, and took oath of office.

<p>Equitable petition. Before Judge Meadow. Oglethorpe superior court. October 4, 1913.</p>

Equitable petition. Before Judge Pite. Murray superior court. May 16, 1913.

<p>Forfeiture of recognizance. Before Judge Edwards. Polk superior court. June 16, 1913.</p>

<p>Claim. Before Judge Edwards. Douglas superior court. August 1, 1913.</p>

<p>Trover. Before Howell Hollis, judge pro hae vice. Marion superior court. May 29, 1913.</p>

<p>Trover. Before Judge Gilbert. Taylor superior court. April 9, 1913. ’</p>

<p>Complaint for land. Before Judge Hawkins. Laurens superior court. February 3, 1913.</p>

Petition for injunction. Before Judge Cox. Dougherty superior, court. March 24, 1914. The board of water, gas, and electric-light commissioners of the .City of Albany, claiming authority under the charter, adopted a rule providing that no water should be furnished on any premises except through a meter furnished and installed at cost by the city on the sidewalk in front of the premises, and providing that water should be cut off from the premises for a violation of the rule.

<p>Action for damages. Before Judge Fite. Dade superior court. August 15, 1913.</p>

<p>Complaint. Before Judge Patterson. Pickens superior court. May 7, 1913.</p>

<p>Complaint. Before Judge Park. Jones superior court. February 1,1913.</p>

<p>Equitable petition. Before Josepb E. Pottle, judge pro bae vice. Jasper superior court. January 23, 1913.</p>