Volume 142 — Georgia Reports

<p>Complaint for land. Before Judge James B. Park. Putnam superior court. March 18, 1913.</p>

<p>Probate of nuncupative will. Before Judge Gilbert. Chattahoochee superior court. July 22, 1913.</p>

<p>Complaint. Before Judge Worrill. Miller superior court. January 37, 1913.</p>

<p>Action for breach of contract. Before Judge Worrill. Terrell superior court. February 1, 1913.</p>

<p>Action for damages. Before Judge Worrill. Randolph superior court. January 27, 1913..</p>

Complaint for land. Before Judge Thomas. Lowndes superior court. July 15, 1913.

Equitable petition. Before Judge Daniel. Fayette superior court. August 27, 1913. The petition was by A. J. Crane against Mrs. Eva Couch.

<p>Petition for injunction and receiver. Before Judge Wright. Floyd superior court. March 7, 1914.</p>

<p>Beceivership. Before Judge Bell. Floyd superior court. February 20,1914.</p>

Injimction and receivership. Before Judge Mathews. Bibb superior court. March 14, 1914. A corporation was chartered by the superior court, and its assets consisted mainly of real estate.

<p>1, In an action to recover land, if the plaintiff be entitled to- recover a portion of the premises sued for, a recovery may be had for such portion if it is sufficiently identified by the evidence, so as to enable the .jury to describe it in their verdict; but if the evidence as to such portion be so vague and indefinite as to fail to identify any particular portion, the plaintiff can not recover.</p> <p>(a) It was error to instruct the jury that the burden was on the plaintiffs to show by evidence that the defendant was in possession of the land, where the "defendant by plea admitted he was in possession.</p> <p>2. Under the evidence no issue of title by seven years adverse possession wider color was involved. The defendant claimed the land under a deed (which he exhibited in evidence) from the same person whom the plaintiffs claimed to have subsequently devised it to them. If the defendant’s deed included the premises, the plaintiffs would not be -entitled to recover, regardless of the length of time of the defendant’s possession.</p> <p>3. Instructions to the jury should be confined to the issues made by the pleadings; and where the right of all the parties in an equitable action to sue as joint plaintiffs is not challenged by demurrer or plea, it is error for the court to charge the jury that a recovery can not be had by the plaintiffs unless all of them are entitled to recover.</p> <p>4. A deed which describes the premises, giving the boundaries and estimating the area as containing a certain number of acres, “more or less,” conveys all the land embraced in the calls, although the acreage may exceed the estimate.</p> <p>5. In a suit by an executrix to recover land which the defendant claims to have been conveyed to him by the plaintiff’s testator, where the issue is whether the deed covers the land in dispute, the defendant is incompetent to testify that the plaintiff’s testator, prior to making the deed, pointed out to him the boundaries of the land afterwards conveyed.</p> <p>6. Testimony of a conversation had by a witness, who is a party, with another person, not in the hearing of the opposite party, is incompetent.</p>

<p>1. A testator in an item of his will gave to his wife his land located in two named counties, and also certain personalty. Following this disposition, and in the same item, the testator declared, “This bequest is to my wife for and during her life or widowhood,” etc. Held, that the wife’s estate in the land by virtue of this item was for life or widowhood.</p> <p>2. In the items of the will set forth in the statement of facts the testator devised a life-estate to his daughter, Joeora, with remainder over to her children, and, upon her failure to leave children, then by executory devise to the testator’s children or representatives of children.</p> <p>3. The partition of the testator’s land, under the award and judgment rendered in the action brought by his administrator de bonis non, with the will annexed, against the legatees and devisees of the testator, is effective as a division in severalty of all the estate, present and prospective, accruing'under the will to the parties thereto.</p> <p>(a) A testator devised property to his four children, one of whom was named Joeora. With respect to the devise to her the testator provided as follows: “I will that the property to which my daughter Joeora (my youngest child) be vested in trust in her mother, but she is to have the use of the same. She dying without issue, it is to revert to my estate and be equally distributed among my children and their representatives. But if my said daughter should marry and leave children, then the property to vest in them at the death of their mother, said Joeora.” Upon the death of Joeora without children, the property devised to her passed, under the will, to the testator’s children and grandchildren in life at the time of her death, per stirpes. Great-grandchildren of the testator who take under will are not estopped by any act of their deceased mother, who was a grandchild, since they take, not ás heirs of their mother, but directly under the will.</p> <p>4. Some of the deeds were relevant and admissible, but that from Mrs. Duke was not admissible as tending to show an estoppel by ratification against her children, who were claiming the land, not as her heirs, but as executory devisees under the will of J. B. Slack.</p>

<p>Complaint. Before Judge Worrill. Miller superior court. October term, 1913.</p>

<p>Ejectment. Before Judge George. Ben Hill superior court. June 27, 1913.</p>

<p>Complaint. Before Judge Littlejohn. Lee superior court. July-16, 1913.</p>

<p>Complaint. Before Judge George. Crisp superior court. May 21, 1913.</p>

Cancellation of deed. Before Judge George. Dooly superior court. August 5, 1913. Mrs. Sarah Netherton brought her petition against George B, Netherton and his wife, Sallie B. Netherton.

<p>Claim. Before Judge Frank Park. Motion to set aside judg- . ment. Before Judge Worrill. Decatur superior court. February 10, 28, 1913.</p>

<p>Equitable petition. Before Judge Thomas. Colquitt superior court. January 27, 1913.</p>

Complaint. Before Judge Thomas. Colquitt superior court. April 16, 1913. The plaintiff, John E. Toole, brought suit against the Wiregrass Development Company to recover the sum of $7,500 as commissions on sales of real estate during the years of 1910 and 1911.. The petition alleged, ih substance, as follows: In June, 1910, the plaintiff was conducting a real estate business at Macon, Ga.

<p>Complaint. Before Judge Graham. Montgomery superior court. August 7, 1913.</p>

<p>Indictment for murder. Before Judge James B. Park. Jasper superior court. April 27, 1914.</p>

<p>Equitable petition. Before Judge Conyers. Camden superior court. March 1, 1913.</p>

<p>1. Creditors instituted in the State court an insolvency action for the appointment of a receiver to administer, for the benefit of creditors, the assets of a debtor alleged to be insolvent. The defendant filed a cross-petition against one of the plaintiffs and two other persons, alleging that these three had caused a fraudulent sale to be made of certain land of the original defendant (plaintiff in the cross-action), and praying to have a receiver take possession of such land, to have the sale set aside and the deed made in pursuance of it canceled, and for other relief. An ex parte order was granted upon the cross-petition, directing the receiver to take possession of the land. The purchaser at the sale, and a defendant in the cross-petition who was a plaintiff in the original action, filed motions to vacate the order directing the receiver to take possession of such land. The allegations of such motions asserted title adversely to the plaintiff in the cross-petition, and possession thereof. While the ease was thus pending before the State court the defendant in the original petition (the plaintiff in the cross-petition) was adjudicated a voluntary bankrupt. The judge of the State court refused to hear the motions to revoke the order directing the receiver to take possession of the land, and, on motion of the receiver appointed by the court of bankruptcy, ordered the receiver of the State court to deliver to such receiver in bankruptcy all of the assets of the insolvent debtor, specifying in the order that this should include the land above mentioned. Held, that while the proceedings in bankruptcy superseded the general insolvency proceeding in the State court, and an order for a delivery to the receiver in bankruptcy of all assets clearly and without controversy belonging to the bankrupt was proper, yet, under the practice governing equitable actions in this State, the cross-petition by which the defendant in the original action sought to cancel the deed, and to establish its right to the land held and adversely claimed by others, was not an integral part of the insolvency proceeding, but took the place of a separate bill in equity by the defendants in the cross-petition. So far as the land involved in this controversy was concerned, it stood as if the defendant in the original proceeding had filed a separate and independent equitable suit against the defendants in the cross-action. Had such a suit been instituted by it, the voluntary bankruptcy of the plaintiff in such action would not have authorized the seizure of the land and its delivery to the receiver of the bankruptcy court, until the controversy in regard to the title and right of possession thereto had been determined. The proceedings in bankruptcy would not supersede the right of the State court to proceed with reference to the cross-petition to determine the issues involved, nor would it transfer the right to determine those issues to the court of bankruptcy. It was accordingly error for the State court to substantially seize the possession of the land as against a claim of title and possession in another, and summarily transfer such possession to the plaintiff in the cross-action, or the receiver in bankruptcy representing'him.</p> <p>2. Upon motions by the defendants in the cross-petition, to revoke an ex parte order directing the receiver in the State court to take the lands from the possession of the defendants in the cross-bill, the judge did not make any ruling; and whether or not he should have revoked the order is not now for decision.</p> <p>3. The motion to dismiss the writ of error in the Supreme Court, upon the ground that the questions raised in the bill of exceptions are moot, is without merit.</p>

<p>Injunction. Before Judge Fite. Bartow superior court. November 1, 1913.</p>

Forfeiture of recognizance. Before Judge Gilbert. Talbot superior court. March term, 1913. J. 0. Fryer as principal, and R. L. Graham as security, gave their recognizance for the principal’s appearance to answer an indictment in the superior court of Talbot county. TTpon the principal’s default of appearance the bond was forfeited, and scire facias was issued, being directed to the sheriffs of this State. The principal was not served.

<p>Money rule. Before Judge George. Crisp superior court. June 19, 1913.</p>

Equitable petition. Before Judge Thomas. Lowndes superior court. August 4, 1914. The E. J. & B. E. Camp Lumber Company, a corporation under the laws of the State of Florida, and George W. Saxon, Frank Eoberts, W. B. Cate, H.- E. Taylor, and J. A. Maultsby, as trustees under a certain deed of trust executed to them by the lumber company for the benefit of its creditors, brought suit against the Citizens Bank of Yaldosta for the recovery of usury and for other relief.

<p>Claim. Before Judge Bell. Fulton superior court. May 14, 1913.</p>

<p>1. The statute of limitations applicable to a suit against a railroad company under the Civil Code (1910), § 2755, to recover a penalty of one thousand dollars for a failure to sell tickets of a connecting railroad company at the price or rate fixed by the railroad commission for passage over the lines of such connecting roads, is that provided by the Civil Code (1910), § 4370, for suits by informers to recover any fine, forfeiture, or penalty.</p> <p>2. The provision contained in the Civil Code (1910), § 4374, to the eflect that infants, idiots, or insane persons, or persons in prison, who labor under such disabilities “when the cause of action accrues,” shall be entitled to the same time, after the disability is removed, to bring an action, as is prescribed in the code for other persons, has no application to suits by informers to recover penalties; .and the statute of limitations applicable to actions of that character is not suspended so as to allow an infant the same time, after becoming of age, to bring such a suit as is prescribed for other persons, before the bar of the statute will attach.</p>

<p>Complaint. Before Judge James B. Park. Hancock superior court. August 9, 1913.</p> <p>Tbe First National Bank of Sparta brought suit against the Hancock Warehouse Company, and the petition shows substantially the following: During the cotton season of 1911 J. A. Thomas purchased from the Hancock Warehouse Company 156 bales of cotton at various times, .giving in payment therefor his checks upon the First National Bank of Sparta, drawn in favor of the Hancock Warehouse Company. On September 27, 1911, Thomas sent the defendant instructions in writing as follows: “Sept. 27, 1911. The Hancock Warehouse Company, City. . . This is to notify you that all cotton bought by me and paid for by the First National Bank belongs to them, and can not be disposed of by me without their consent, the cotton being subject to their order. Yery respectfully, [signed] Joe A. Thomas.” This order was delivered by Thomas to H. L. Middlebrooks, the cashier' of the plaintiff bank, and by him, on September 28, exhibited- tó James W. Alfriend, president of the Hancock Warehouse Company, with instructions to hold all cotton paid for by check of Joe A. Thomas on the First National Bank of Sparta subject to the order of the bank, which instructions Alfriend, as president of the warehouse company, agreed to recognize and comply with, and in compliance with the instructions declined to ship- one hundred and forty-two bales of cotton then in defendant’s warehouse and paid for by the plaintiff bank on the order of Joe A. Thomas, until such instructions were received from the plaintiff bank. On September 29, 1911, Joe A. Thomas gave to the Hancock Warehouse Company his check on the First National Bank of Sparta for the sum of $603.33, payable to the Hancock Warehouse Company, in payment for eleven bales of cotton. On September 30, 1911, Joe A. Thomas gave to the Hancock Warehouse Company his check on the First National Bank of Sparta for $140.14, payable to the order of the Hancock Warehouse Company, in payment for three bales of cotton. The fourteen bales of cotton so purchased were paid for in the due course of trade in the same manner as the 142 bales before referred to, which had been held by the warehouse company subject to the order of the plaintiff bank. The two checks referred to were indorsed by the Hancock Warehouse Company and paid by the First National Bank of Sparta. On October 7, 1911, the plaintiff bank, through its cashier Middlebrooks, ordered the Hancock Warehouse Company to ship the last fourteen bales of cotton to- Nixon & Wright, Augusta, Georgia, the instructions being given to James W. Alfriend, president of the warehouse company, his attention having been called to the previous order of Thomas to the warehouse company above referred to, and to the fact of the cotton being paid for by the bank, which instructions Alfriend, for the warehouse company, declined to comply with and refused to deliver the cotton to the plaintiff bank, or its order. On October 11, 1911, the plaintiff bank, in writing, requested the defendant warehouse company to furnish it with the numbers, weights, and marks of the 14 bales of cotton, in order that it might be in possession of the description of the cotton paid for by it on the cheeks of J oe A. Thomas. On October 12, 1911, the warehouse company declined in writing to furnish the information requested by the plaintiff, stating that the 14 bales of cotton were at the time stored in the warehouse and that the defendant company had issued receipts therefor on the order of J oe A. Thomas, without the consent or knowledge of the plaintiff bank, and contrary to the instructions previously given to the warehouse company and which the latter had agreed to comply with. J oe A. Thomas is insolvent, and a judgment against him for $143.47, the amount of the checks, is uncollectible. The checks would not have been paid by the bank except for the instructions given by Thomas to the defendant company, which the latt,er agreed to observe, and on the faith of which the checks were paid. By its refusal to comply with the foregoing instructions, upon the faith of which it collected from the plaintiff bank the checks, and by declining to deliver the 14 bales of cotton to the plaintiff bank, the defendant company has damaged the plaintiff in the sum of $743.47, besides interest, for which it seeks judgment.</p> <p>The defendant denied the material allegations of the petition, and answering specially, among other things, averred: that the instructions in the letter of Thomas to the warehouse company were exhibited to its president, J. W. Alfriend, on September 28, 1911; but it denied that it agreed to recognize and comply therewith. Its president stated to the cashier of the plaintiff that the defendant would decline to accept the terms and conditions of the letter of Thomas by writing an acceptance on the bottom of the letter, but that Alfriend would reply to the letter of Thomas, accepting instructions as to shipping cotton, and would also notify the plaintiff bank in writing that defendant had such instructions and would hold cotton subject to their order. Middlebrooks, cashier, then withdrew the letter of Thomas, stating to Alfriend that he would make a copy of the letter and forward the original to the defendant during the afternoon of September 28, 1911. Alfriend stated to Middle-brooks that upon receipt of the letter they would either decline or agree to ship cotton under the instructions above referred'to. Without having received the letter referred to, after its being withdrawn from the defendant 'as alleged, the defendant was notified by Joe A. Thomas to ship 142 bales of cotton which he had purchased and held in the warehouse of the defendant, Thomas stating at the time that he would also get the plaintiff bank to notify the defendant to ship this lot of cotton. The plaintiff did notify the defendant to ship, as Thomas had ’already done, the 142 bales, and they were shipped under these instructions on September 29, 1911. The defendant admits that the 14 bales of cotton were purchased from it by Thomas and were paid for by checks on the plaintiff bank, but denies that there were instructions from the plaintiff bank as to these 14 bales at the time, or that these 14 bales were held subject to any order from the plaintiff bank. The 14 bales of cotton were purchased by Thomas in due course of trade, with no agreements or contracts between, the defendant and the plaintiff in regard thereto. The cotton, after having been paid for by Thomas, was held by the defendant subject to his order 'as purchaser, he stating to the defendant that the instructions which he had given the plaintiff on September 27, 1911, referred only to cotton which he had on hand in defendant’s warehouse at the time the letter of instructions was given, and which, under the verbal instructions of Thomas and the plaintiff had been shipped by the defendant on September 29, 1911. On October 6, 1911, Thomas called on the defendant for warehouse receipts for the 14 bales of cotton which he had purchased on September 29, 1911, and the defendant issued warehouse receipts to the order of Thomas for the cotton before any orders and instructions were received from the plaintiff, which the defendant did not know in the transaction, except to accept payment for the cotton in due course of trade, by checks drawn by Thomas on the plaintiff bank. At such time the defendant had no previous order of Thomas as to any shipment of cotton; all the cotton which had been shipped was shipped on verbal orders of Thomas, and the 142 bales under verbal orders of Thomas and the plaintiff bank. The written order of September 27, 1911, had been withdrawn by the plaintiff, and was not in the possession of the defendant. After this, defendant notified plaintiff that it had issued warehouse receipts for the 14 bales of cotton and could not ship the cotton under plaintiff’s orders and instructions. The letter, which the plaintiff bank had held since September 27, 1911, was by the plaintiff mailed by registered letter on the afternoon of October 7, 1911, and received by the defendant on October 8, 1911. Defendant denies that it had any agreement with the plaintiff in reference to the 14 bales of cotton for which it issued its receipts to Thomas.</p> <p>The witnesses for the plaintiff testified substantially to the allegations set out in the petition. Middlebrooks, plaintiff’s cashier, testified that the letter was to cover all cotton that might be purchased; and the defendant’s witnesses testified to the averments of the answer. After the evidence was all in, the court instructed the jury that the letter of instructions of September 27, 1911, was not ambiguous, and would only include cotton that had been purchased by Thomas and paid for by the plaintiff bank up to September 27, 1911. He then directed a verdict for the defendant, which was accordingly rendered. A new trial was refused, and the plaintiff excepted.</p>

Equitable petition. Before Judge Gilbert. Talbot superior court. January 6, 1913. L. W. Smith, as administrator upon the estate of Albert H. Heath, filed his petition against Mrs. Mittie Heath and Mrs. Mary P. Stanley, and showed substantially as follows: As administrator he proceeded to take charge of the property of the estate, and to rent and otherwise manage it as seemed to the best interest of the estate.

<p>Equitable petition. Before W. M. Harper, judge pro bac vice. Stewart superior court. April 24, 1913.</p>

<p>Motion for new trial. Before Judge Bawlings. Taylor superior court. May 10, 1913.</p>

<p>Equitable petition. Before Judge George. Ben Hill superior court. June 30, 1913.</p>

<p>Equitable petition. Before Judge Frank Park. Baker superior court. January 28, 1913.</p>

<p>Probate of will. Before Judge Frank Park. Turner superior court. August 4, 1913.</p>

<p>Equitable petition. Before Judge Frank Park. Turner superior court. February 4, 1913.</p>

<p>Processioning. Before Judge Thomas. Berrien superior court. June 14, 1913.</p>

<p>Ejectment. Before Judge Thomas. Colquitt superior court. February 3, 1913.</p>

<p>Complaint. Before Judge Thomas. Tift superior court. December 3, 1912.</p>

<p>Eviction. Before Judge Thomas. Berrien superior court. June 27, 1914.</p>

<p>Equitable petition. Before Judge Thomas. Colquitt superior court. July 21, 1913.</p>

<p>Equitable petition. Before Judge Graham. Pulaski superior court. June 28, 1913.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. ’ July 5, 1913.</p>

<p>Action for damages. Before Judge Patterson. Fannin superior court. July 25, 1913.</p>

<p>Equitable petition. Before Judge Sheppard. Effingham superior court. June 24, 1914.</p>

<p>Complaint for land. Before Judge Worrill. Miller superior lourt. January 27, 1913.</p>

<p>Under the employer’s liability act of 1909 (Civil Code (1910), §§ 2782 et seq.), where suit was brought by the administratrix of a deceased employee of receivers operating a railroad as a common carrier, whose death was caused by being run over by an engine of the carrier, alleged to have been negligently run at an improper speed, without proper signals, and without any lookout, though it was running backward through a railroad yard where many employees were constantly at work; and where, on the trial, the evidence introduced by the plaintiff tended to show that the decedent was killed by being run over by an engine of the carrier while he was engaged in his business as a car-inspector in its yards, and was standing on one of its tracks, a presumption of negligence arose against the defendants, and there was no error in refusing to grant a nonsuit.</p> <p>(а) The evidence did not authorize it to be declared as matter of law that such negligence on the part of the deceased was shown as to prevent a recovery by his administratrix.</p> <p>(б) After the overruling of the motion for a nonsuit, the defendants having introduced no evidence, a verdict in favor of the plaintiff was not contrary to law as being without evidence to support it.</p>

<p>Equitable petition. Before Judge Conyers. Camden superior court. March 1, 1913.</p>

<p>1. On the trial of an issue formed hy objections filed by an assignee of adult children of a decedent to the return of appraisers setting apart a year’s support to the widow and minor children, the burden of proof is on the objector.</p> <p>2. Where an owner of land located in this State is a non-resident at the time of his death, his widow, although a non-resident at the time of her application, may apply in this State to have a year’s support set apart in the property of her deceased husband, located in this State. In view of this ruling, as applied to the facts of the case, the charge complained of was harmful error.</p>

<p>Trover. Before Judge Parker. Clinch superior court. February 8, 1913.</p>

<p>Complaint for land. Before Judge Parker. Clinch superior court. January 25, 1913.</p>

Action lor damages. Before Judge Pendleton. Eulton superior court. June 12, 1913. E. L. Waters brought suit against the National Woolen Mills and E. R. Winn, to recover damages for an alleged false arrest and imprisonment.

<p>The description of the next preceding case applies here.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. June 12, 1913.</p>

<p>Validation of municipal bonds. Before Judge Charlton. Chatham superior'court. November 3, 1913.</p>

<p>Equitable petition. Before Judge Worrill. Early superior court. July 8, 1913.</p>

<p>Equitable petition. Before Judge Jones. Hall superior court. August 2, 1913.</p>

<p>Complaint. Before Judge Conyers. Camden superior . court. April term, 1913.</p>

<p>A testator by the first item of his will conferred on his executrix the power “to buy and sell property at any time she may deem fit, and to take control of all my affairs the same as her own, without any application or returns to be made to the regular courts of law regulating such cases; to pursue such course with my affairs as if I were personally present and performed the same.” Another item of the will appointed his executrix guardian of his children, and vested her with “full power over their persons and property that is now guaranteed or vested in myself, and to manage and control their persons and their property as she deems best for their interests, with as full power as item 1st.” The executrix and guardian thus appointed purchased the real estate in controversy, and took a deed to herself as trustee for the children of testator, “under the same limitations, restrictions, and powers as are allowed, directed, and contained in the last will and testament of the said Henry E. Moore, deceased,” the testator. Subsequently the trustee applied to the judge of the superior court for an order to sell the lands ' belonging to her cestuis que trust, and to reinvest the proceeds, which was granted at chambers on December 13, 1869. The land was sold by the trustee and a deed executed by her as such to the purchaser, conveying the land in controversy. The deed contained no recital of the application and order to sell. The grantee and those who hold under him have held possession of the land under the deed for over forty years. The plaintiff (McDonald), who is the grandson of the testator, brought suit as the heir at law of his deceased mother, on whose estate there was no administration, to recover an undivided twelfth interest in the land. The court granted a nonsuit. Meld, that the deed of the trustee is to he construed as if the language in the will authorizing the guardian to sell were incorporated in the deed.</p> <p>(a) Under the terms of the will the trustee, or testamentary guardian, had the authority to sell the land and execute a deed to the same without an order of court for that purpose.</p> <p>(&) Eegardless of whether the order was legally obtained in vacation, the trustee had authority to sell the land, and her deed as trustee conveyed all the title she and her cestuis que trust had thereto.</p> <p>(c) The court did not err in granting a nonsuit.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. March 27, 1913.</p>

<p>Equitable petition. Before Judge Edwards. Douglas superior court. March 18, 1913.</p>

<p>Complaint. Before Judge Hawkins. Johnson superior court. March 13, 1913.</p> <p>The Planters Fertilizer Company brought an action on a promissory note against J. S. Wheeler. The defendant pleaded that the note was given for the purchase-price of certain fertilizer, and was void for the reason that the plaintiff did not comply with the law regulating the sale of fertilizers, in that the sacks in which the fertilizer was contained, while duly branded, were not tagged as required by law. The plaintiff obtained a verdict for a sum less than that which appeared to be due on the face of the note. The court refused to grant a new trial, and the plaintiff excepted.</p>

Equitable petition. Before Judge Bell. Fulton superior court. May 10, 1913. Guy L. Bush filed a petition against Mrs. L. R. Black, to obtain specific performance of a contract for the exchange of lands, based, in substance, upon the following allegations.

<p>Illegality of execution. Before Judge Worrill. Miller superior court. May 30, 1913.</p>

<p>Illegality of execution. Before Judge Littlejohn. Sumter superior court. January 17, 1913.</p> <p>An execution based on the foreclosure of a mortgage on realty was levied on the -mortgaged property. The defendant interposed an affidavit of illegality, on the ground that the amount thereof had been fully paid and the execution had been discharged. There was evidence tending to show, that a levy had been made upon the property, to which a claim had been interposed; that an agreement was made between the plaintiff in fi. fa. and the claimant, by which the latter purchased the mortgage fi. fa. and also a common-law fi. fa.; that the plaintiff in fi. fa. transferred the executions to the claimant, took from him a note for an agreed amount, and on the same day took a retransfer of tbe executions as security for the note; that a payment of $214.53 was received and credited; that subsequently, on failure of further payment to it, the holder of the mortgage fi. fa. proceeded to collect the balance by causing a levy to be made on the land; and that in the meantime one of the defendants in fi. fa. had made payments to the claimant, having 'been informed that the transfer had been made to the claimant, but not knowing that the latter had retransferred the execution to the original plaintiff in fi. fa. as a security. The evidence was not altogether clear as to whether the payments made by the defendant in fi. fa. to the claimant were sufficient to discharge it, or whether he acted without notice of the retransfer of the fi. fa. as security. But this becomes immaterial as a question of fact; because the court charged that if the defendant in execution paid the amount of it to the claimant, who was not in possession of it at that time, but had previously transferred it to the original plaintiff, who was in possession of it, such a payment would be at the risk of the defendant who made it, and would not be binding upon the holder of the execution, unless it should appear that the person making the collection was authorized by the holder to do so. This was the controlling point in the case. The jury found against the affidavit of illegality. A motion for a new trial was overruled, and the defendant in fi. fa. excepted.'</p>

<p>Ejectment. Before Judge George. Ben Hill superior court. January 13, 1913.</p>

<p>Distraint. Before Judge Graham. Crisp superior court. February 17,1913.</p> <p>On September 29, 1909, the plaintiff filed a petition against the defendant, alleging, that the former was the owner of certain land and the crops thereon; that the defendant entered upon the premises and threatened and intimidated the farm hands of the plaintiff, so as to cause them to discontinue work; and that the entry of the defendant was a trespass, without title or right of possession. The prayer was, that the defendant, his agents, and confederates be restrained and enjoined from threatening and intimidating the farm laborers of the plaintiff; that he be restrained and enjoined from moving upon the premises; and that he be required not to move any article that he had already placed upon the premises. The defendant answered, denying that the plaintiff was the owner of the land and crop, or that his act was a trespass, or that he threatened and intimidated the employees of the plaintiff. He alleged that he peaceably and quietly entered upon the land under an honest claim of right, and without objection on the part of the plaintiff; and that he moved into a dwelling-house upon the premises, and was peaceably and quietly occupying it with his family. An interlocutory injunction was granted, restraining the defendant on terms as prayed.</p> <p>The trial took place on May 16, 1911. It was agreed by counsel for both parties that the only issue to be passed upon by the jury was as to whether the defendant had interfered with the plaintiff’s hands or agents. It was further agreed that at the time when the defendant was served with process he was not on the premises, but after service he was permitted to visit the family without being in contempt of court. The jury found for the plaintiff; and a decree was entered, permanently enjoining the defendant, his agents, and confederates from threatening and intimidating the farm laborers of the plaintiff, and from “moving upon the premises described.” A motion for a new trial was made, and upon its being overruled, the case was brought to this court. The judgment was affirmed. 139 Ga. 88 (76 S. E. 750). The remittitur was. dated December 11, 1912. While the case was pending in the trial court, on December 31, 1910, the parties entered into an agreement containing the following terms: (1) That the defendant was to be allowed to cultivate and farm during the year 1911, upon all the farm lands of the property in dispute, upon his giving bond with good security in the sum of $200 payable to the plaintiff and for the rent of the said premises for the year 1911. (2) That the bond was to be payable to the plaintiff, provided she should sustain, maintain, and finally win in the suit then pending; but should she fail to sustain and maintain her suit, then the bond was to be a nullity. (3) “This agreement in no way affects the present status of the parties to this suit, and the said S. B. Culpepper [the defendant] has no other rights under this contract than to cultivate for the year 1911 the farm lands of the lands now in dispute in the above-stated case. After the crops are cultivated and harvested, then, unless the said suit is finally terminated, the relation and standing of the parties to the above-stated suit shall be the same as it now is under the order of the court.” (4) The defendant was at once to remove a named person from the premises. Under this agreement a bond was given which recited the pendency of the suit and the making of the agreement, including the stipulation for the giving of the bond "for the rent of the premises for the year 1911, without changing the status of either party in said suit.” It thereupon bound the principal and surety for the payment of $200 to the plaintiff in the action. The condition was, that, if the plaintiff should maintain and finally win the suit, then the amount of the bond was to be payable and collectible by the plaintiff by October 1, 1911; but if she should fail finally to maintain her suit, then the bond was to be null and void. On October 4, 1912, the plaintiff, through an agent, made affidavit and obtained a distress warrant against the defendant in the former action, alleging that he owed the sum of $200 for rent for the year 1912. He filed a counter-affidavit, denying that he was the tenant of the plaintiff or was indebted in any amount for the rent. On the trial the papers showing the history of the case, as above recited, were introduced in evidence. The husband of the plaintiff (she being a married woman) testified, that the defendant was in possession and farmed on the land during the year 1912; that the rent was worth $200; that "the rent was due at the time of suing out the distress warrant;” that there never was any agreement about the place or rent of it between the plaintiff and the defendant for the year 1912, unless it was in the agreement and bond already mentioned ; that they constituted the only agreement that was ever made between the parties about the place; that the defendant cultivated the place in 1911, under that agreement, and then- remained in possession and cultivated the premises in 1912, without any further agreement or understanding between him and the plaintiff.</p> <p>The defendant objected to the admission in evidence of the written agreement and bond. On the close of the evidence introduced by the plaintiff, the defendant moved for a nonsuit, which was denied. He introduced no evidence. The court directed a verdict for $200 for the rent for 1912. The defendant excepted.</p>

<p>Complaint. Before Judge Prank Park. Baker superior court. March 18, 1913.</p>

<p>Lien foreclosure. Before Judge George. Ben Hill superior court. July 3, 1913.</p>

<p>Equitable petition. Before Judge Grabam. Pulaski superior court. June 28, 1913.</p> <p>J. J. Dennard proceeded against four named defendants as intruders upon two lots of land, aggregating 405 acres, under the Civil Code, § 5380. The defendants tendered the counter-affidavit provided for by that section, and remained in possession of the land. The plaintiff then filed his petition to the superior court, praying that he recover possession and mesne profits, that the title be decreed to be in him, and that a receiver be appointed to take charge of the land and rent it pending the suit. He described the recorded deeds under which he claimed title, and alleged that he had held exclusive, uninterrupted, and peaceable possession for over twenty years; that the defendants entered without his consent, without any title; that they were insolvent; and that if they were permitted so to remain, he would be damaged without redress, the rental value of the land being $400 a year; etc.</p> <p>The defendants answered, in effect, that they held possession as tenants under H. B. Lewis, who they were advised and believed was the true owner. They prayed that he be allowed to intervene and be made a party defendant; and they vouched him into court to defend his title. He was allowed by order of court so to intervene ; and his answer was in substance as follows: About September 7, 1889, the plaintiff sold the land to intervenor and his father, J. W. Lewis, for $1,500, taking their notes for the price, and executing and delivering to them his bond for title. He put them in possession of the land,, and thereafter they held adverse, continuous, peaceable, public, and uninterrupted possession until the death of J. W. Lewis in July, 1911, since which date intervenor has so held. Upon the faith of the contract of sale and purchase they expended, with plaintiffs knowledge, labor and money in clearing the land and erecting permanent improvements thereon. After they had done this, the plaintiff by fraudulent means (described) obtained from J. W. Lewis the bond for title and destroyed it. When intervenor heard of this conduct he notified the plaintiff that he would not abide this effort to avoid the sale and retake the land, but would hold it under the terms of the sale. The plaintiff then agreed that he would not insist on a rescission of the contract, but would make good and sufficient title to the land on payment of $1,605, granting such time as intervenor might wish, and until final demand by plaintiff for payment, so long as intervenor paid him an amount equal to eight per cent, on the agreed price. Pursuant to this contract intervenor gave plaintiff Ms notes for the price, due January I, 1901. Ever since the making of this agreement or contract of purchase, intervenor has paid plaintiff the annual sum he agreed to pay as interest, and plaintiff has accepted the payments with full knowledge that they were made in pursuance of the contract of purchase. The taxes on the land have been paid by intervenor and J. W. Lewis ever since 1889. The improvements made by them on the land amounted to $1,500 or other large sum. J. W. Lewis, before his death in January, 1911, released and set over to intervenor his right and .title to the land, in consideration of love and affection, the labor and money that intervenor had expended, and of his payments of the annual interest, and of the occupancy and use of the land by J. W. Lewis during the rest of his life; this with the plaintiff’s knowledge. There has been no administration on the estate of J. W. Lewis; and his heirs at law have, for good 'and Valuable considerations, sold and conveyed to intervenor their title and interest as such heirs. ' About sixteen days after the filing of the petition, intervenor tendered to plaintiff $1,733.40 as the amount of principal and interest due on the purchase-price of the land, and requested him to make intervenor a deed conveying the title; but this was refused. The tender is made continuous. He prays for specific performance of the contract of sale, for decree that he has title to the land, etc.</p> <p>A verdict was rendered, and decree was entered thereon, that the plaintiff be required to convey the land to the intervenor upon payment of $1,733.40. The plaintiff excepted to the overruling of his motion for a new trial, the material grounds of which are indicated by the headnotes.</p>

Action for damages. Before Judge Bell. Eulton superior court. January 10, 1913. Mrs. H. M. Shroeder sued the railway company on account of personal injuries sustained by her by reason of one of the defendant’s ears running against her. On the trial, at the conclusion of the evidence introduced by the plaintiff, the court awarded a non-suit ; 'and to this ruling the plaintiff excepted.

<p>Action for damages. Before Judge Bell. Fulton superior court. May 17, 1913.</p> <p>Mrs. Ida L. King brought suit against W. H. Burt, alleging: that the defendant used, in connection with his business, certain horses and wagons; that on the 7th day of May, 1911, a horse, the property of the defendant, which was harnessed to a wagon, was left standing in the street in the City of Atlanta in front of the defendant’s place of business; that the horse was unhitched, and no driver or other person in or at said wagon was in charge of the same; that an ordinance of the City of Atlanta makes it unlawful for the owner or person in charge to permit a horse or team attached to a vehicle to stand in the street of the city under the circumstances set forth above, and in doing so that the defendant violated the ordinance and was negligent in this regard; that it was negligence on the part of the defendant to thus leave the horse unhitched, as it was liable to take fright and run away from the noises and other happenings; that said act of negligence damaged the plaintiff, in that while she was walking along the public sidewalk of a named street and rightfully using the same, being in the exercise of ordinary care for her own protection, and just as she reached the point in front of the defendant’s place of business where the said horse was standing, the horse took fright at some noise or occurrence in the street and suddenly ran upon the sidewalk and came in collision with the plaintiff, who was thus knocked down upon the sidewalk and received serious personal injuries, from which she suffered greatly and as a result of which she had incurred expenses for medical attention and in hiring a nurse; that plaintiff was a married woman, and was allowed by her husband to receive and enjoy the proceeds of her own labor; that she was a saleswoman at a salary of $65 per month, and lost, as the result of said injury, more than three months time and three months pay. The defendant filed his plea and answer and denied the allegation upon which plaintiff based her contention that he was liable in damages for the injuries received. Upon the trial the jury returned a verdict in favor of the plaintiff. The defendant made a motion for a new trial, which was overruled, and to this judgment he excepted.</p>

<p>Lien foreclosure. Before Judge Charlton. Chatham superior court. April 28, 1913.</p>

<p>Actions for damages. Before Judge Worrill. Miller superior court. January 27, 1913.</p>

<p>Equitable petition. Before Judge George. Crisp superior court. May 22, 1913.</p>

<p>Eviction. Before Judge Worrill. Clay superior court. August 2, 1913.</p>

Attachment. Before Judge Prank Park. Decatur superior court. May 23, 1913. A. E. Silverthorne sued out, against Arkansas Southeastern Railway Company, a non-resident corporation, an attachment which was levied upon certain property; and this was afterwards replevied. The declaration in attachment alleged that the defendant was indebted to the plaintiff “four thousand eight hundred dollars, besides interest, the same being on an account as hereinafter described.

<p>Complaint for land. Before Judge Graham. Dodge superior court. May 20, 1913.</p>

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

<p>Complaint for land. Before Judge Bell. Eulton superior court. May 2, 1913.</p> <p>The plaintiffs filed an equitable petition seeking a decree declaring them to be the owners of a half interest in certain property in the City of Atlanta, the legal title to which was in the defendants, but which title, it is alleged, the defendants took with knowledge of the equitable rights of the plaintiffs to a half interest. It is alleged that in 1863 James B. Wilson, being the owner of certain property in Augusta, Georgia, by deed conveyed the same to William V. Keener and his successors, “together with all and singular the rights, members, and appurtenances whatsoever thereunto belonging or in anywise appertaining, and the remainders, reversions, rents, issues, and profits thereof and every party.” The habendum clause in this deed was as follows: “To have and to hold the said lot or parcel of land and all and singular the premises and appurtenances thereunto belonging as aforesaid, and every part thereof, unto him, the said Wm. V. Keener, and his successors forever. In trust always for the sole and separate use, benefit, and behoof of the said Maria L. Wilson, wife of the said James B. Wilson, wholly free from and not subject to the debts, contracts, or liabilities of the said James B. Wilson, existing or hereafter contracted, for and during the term of her natural life, and on her death to the children of the marriage of the said James B. and Maria L., share and share alike, the child or children of a deceased child to stand in the place of the parent; and should it be deemed advisable at any time hereafter to sell and convey the aforedescribed property, the said trustee or any of his successors shall- have power to sell and convey the same by consent of the said Maria L. Wilson, without application to any court for leave, the said Maria L. Wilson to manifest such consent by joining in the conveyance, and the sum raised from such sale to be immediately invested in other property to be held in the same manner and subject to the like use and trusts as that herein conveyed; and the said Maria L. Wilson shall have power, upon the death, resignation, or removal from the State of the said Wm. Y. Keener, or any successors, to appoint, by writing under her hand and seal, other fit and proper persons as successors to the said Wm. Y. Keener, trustee, or any successors, which person so appointed by her as trustee as aforesaid shall be clothed with all the powers and subject to all the responsibilities herein conferred upon and assumed by the said Wm. Y. Keener.” Subsequently William Y. Keener, the trustee named in the deed, resigned the trust and James B. Wilson, the grantor in the deed referred to above, was himself appointed trustee. James B. Wilson, it is alleged, after becoming trustee, did legally sell said trust property and “did dissipate the proceeds thereof;” afterward the “said James B. Wilson did convey to the cestui qui trust of the life-estate of Mrs. Maria L. Wilson other property in lieu of said dissipated trust estate. A copy of said deed substituting other property in lieu of the trust estate is hereto attached, marked exhibit B.” It is alleged, that the effect of this last deed referred to from James B. Wilson to Maria L. Wilson was to put a life-estate in Mrs. Maria L. Wilson, and that all limitations and uses of the trust attached to the property described in this last deed from James B. to Maria L. Wilson; and that the property referred to in this last deed was substituted in lieu of the trust estate alleged to have been dissipated. The property in controversy is a part of the property conveyed by the deed from James B. Wilson to Maria L. Wilson, and passed from Maria L. Wilson by successive conveyances to the defendants. It is alleged that the defendants and those through whom title passed to them took with notice of the rights and equities of the plaintiffs. The plaintiffs are children and descendants of children of James B. and Maria L. Wilson, remaindermen under the first deed hereinabove referred to. The court sustained a general demurrer to the petition and dismissed the same; to which ruling. the plaintiffs excepted..</p>

<p>Illegality of execution. Before Judge Boan. DeKalb superior court. March 11, 1913.</p>

<p>Where an act of the legislature authorized the levy of a local school tax in counties, and provided that before it should go into effect in any given county the question should be submitted to the voters thereof at an election held for the purpose, and receive a designated majority; and after such an election had been held and the r&quisite majority obtained, and the county authorities were about to levy a tax under the law, a citizen and taxpayer filed suit to declare the election void and the law inapplicable, and prayed that the officers be enjoined from levying a tax under the law, and a final judgment was rendered against him, the judgment so rendered is conclusive upon the same plaintiff in a subsequent action to enjoin the collection of taxes for the year in which the first levy was made, or any subsequent year, where the ground relied on to enjoin the collection of the tax is that the election was void and the law inapplicable in the county.</p>

<p>Injunction. Before Judge Worrill. Early superior court. January 27, 1913.</p>

<p>Petition for injunction. Before Judge Ellis. Eulton superior court. January 24, 1914.</p>

<p>1. This case, so far as it relates to the rejection Of certain evidence in regard to pedigree, is in principle controlled by the decision in Greene v. Almond, 111 Ga. 735 (36 S. E. 957), which, having been concurred in by all the members of the court, is binding until reversed or modified.</p> <p>2. After the rejection of the evidence referred to in the preceding headnote, there was no error in granting a nonsuit.</p>

Attachment. Before Judge Frank Park. Decatur superior court. May 7, 1913. On April 11, 1912, C. H. Boyd sued out a writ of attachment against J. A. Vaughn, on the ground of non-residence, returnable to the superior court of Decatur county, which met on the second Monday in May. The case was not ripe for trial before the second term of court, and the plaintiff had the entire first term within which to file his declaration in attachment.

<p>'Complaint. Before Judge Frank Park. Decatur superior court. February 14, 1914.</p>

<p>Equitable petition. Before Judge James B. Park. Hancock superior court. March 26, 1913.</p>

<p>Action upon insurance policy. Before Judge James B, Park. Morgan superior court. June 3, 1913.</p>

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

<p>Equitable petition. Before Judge Conyers. Appling superior eudrt. April 26, 1913.</p>

Attachment. Before Judge Conyers. Jeff Davis superior court. May 10, 1913. G-. W. Chapman sued out an attachment, under the fraudulent debtor’s act, against A. B. Yarn, alleging an indebtedness of $1,-830.53 upon certain notes described in the declaration in attachment, and that the defendant Yarn was conveying and concealing his property liable to the payment of his debts, for the purpose of evading their payment.

<p>Complaint for land. Before Judge Parker. Ware superior court. March 8, 1913.</p>

<p>Complaint. Before Judge Ellis. Fulton superior court. May 17, 1913.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. June 24, 1913.</p>

<p>Fulton superior Action for damages. Before Judge Pendleton, court. June 11, 1913.</p>

<p>The writ of error is dismissed because prematurely brought to this court.</p>

<p>Action upon insurance policy. Before Judge Ellis. Eulton superior court. July 5, 1913.</p>

<p>Complaint. Before Judge Rawlings. Toombs superior court. February 24, 1913.</p>

<p>Complaint. Before Judge Hammond. Richmond superior court. February 5, 1913.</p>

<p>Appeal from court of ordinary. Before Judge Hammond. Bichmond superior court. April 23, 1913.</p>

<p>Application for charter. Before Judge Charlton. Chatham superior court. July 8, 1913.</p>

<p>Complaint. Before Judge Sheppard. McIntosh superior court. January 25, 1913.</p>

<p>Claim. Before Judge Parker. Houston superior court. April 6, 1913.</p>

<p>Attachment. Before Judge Mathews. Bibb superior court. July 9, 1913.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. May 13, 1913.</p>

<p>Claim. Before Judge Mathews. Bibb superior court. July 12, 1913.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. July 18, 1913.</p>

Action of slander. Before Judge Walker. Warren superior court. April 7, 1913. E. E. Spence brought an action of slander against J. L. C. Johnson, alleging, among other things, as follows: “Petitioner shows that on the 5th day of April, 1912, and for several years prior thereto, and from thence hitherto, he was, and still is, a farmer, conducting and carrying on a general farming business.

<p>Action for damages. Before Judge Walker. Warren superior court. July 2, 1913.</p>

<p>Complaint for land. Before Judge James B. Park. Warren superior court. July 12, 1913.</p>

<p>Action for damages. Before Judge Walker. Wilkes superior court. August 11, 1913.</p>

<p>Indictment for murder. Before Judge Hawkins. Laurens superior court. May 20, 1914.</p>

<p>Appeal. Before Judge Pendleton. Fulton superior court. April 4=, 1913.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. October 25, 1912.</p>

<p>1. Under the facts of this ease, a reversal will not be granted on the ground that the presiding judge charged the jury in regard to the failure of the conductor of a street-ear to see and obey a signal given by a passenger .in order to cause the car to be stopped at a street crossing, so that the passenger might leave the car, the contention being that such ground of alleged negligence had been eliminated on demurrer.</p> <p>2. It was erroneous to charge that the jury could not find for the plaintiff on the allegation of negligence that the door of the car was open, “if you also believe that she [the passenger injured] was not in the exercise of ordinary care in respect to the door, and that the open door was not negligence, or was not the proximate cause of the injury.”</p> <p>(a) The pleadings and evidence did not show that the leaving open of the door between the body of the car and the platform, about the middle of September, as was shown by the plaintiff to have been usual at that season, was a negligent act proximately causing the injury, relatively to a passenger eighteen years old, who, in order to leave the car, had voluntarily partially or wholly passed through the door before being injured.</p> <p>(Z>) It was error to charge conjunctively that the plaintiff could not recover on account of the door being open, if the jury also believed that the injured person was lacking in ordinary care in respect to the door and that leaving the door open was .not negligence or was not the proximate cause of the injury.</p> <p>3. The petition having alleged that, after a conductor of a street-ear had failed to obey a signal given by a passenger in order to cause the car to be stopped at the next crossing, the passenger went to the rear of the car in order to again notify the conductor, and that the speed of the car was suddenly and violently checked, throwing her off and injuring her, and there being evidence that, when the signal to stop was given, there was a sudden checking of the speed, causing a jerk, the front of the ear plunging forward and the rear end being lifted up, there was no error in charging in regard to a jerk “forward,” on the ground that the petition did not allege such negligence.</p> <p>4. Without discussing whether the language of Mr. Justice Blandford in Oheeves v. Danielly, 80 Ga. 114, 116 (4 S. E. 902), was entirely apt as applied to the facts of the case then being discussed, its use in charging in the present case was not accurate in stating that if an act complained of, though it may in some degree contribute to an injury, is so small and of such a character as would not of itself produce the injury, “and is of itself an innocent act,” and there are other and contingent circumstances which greatly preponderate in producing the injury, there can be no recovery; but that if the act complained of directly produces damage, however small the act may be, then it may be the subject of recovery.</p> <p>5. While the judge should give in charge the substantial law of the case on trial, he is not required to comply with requests which select certain features of it and invoke argumentative instructions in regard to them.</p>

Action on bond. Before Judge Parker. Houston superior court. •May 3, 1913. W. H. Harris, executor of the will of H. C. Harris, after the death of his testator, borrowed of F. W. Gano $2,500, and executed a note therefor, signed “W. H. Harris, executor of the will of H. C. Harris,” and indorsed by himself personally.

<p>Action for damages. Before Judge Patterson. Cobb superior court. January 22, 1913.</p>

<p>Lieu foreclosure. Before Judge Hammond. Richmond superior court. April 12, 1913.</p>

<p>Complaint. Before Judge Walker. Warren superior court. March 20, 1913.</p>

<p>Trover. Before Judge Hammond. Bichmond superior court. April 12, 1913.</p>

Equitable petition, etc. Before Judge Eite. Gordon superior court. February 9, 1913. The First National Bank of Walsenburg sued out an attachment in the superior court of Gordon county for the sum of $2,156 principal, beside interest, against Carl B. Hope, Bertha Hope, and Mrs. P. T. Kimbrell, as non-residents. The attachment was levied on a tract of land in Gordon county, containing about 160 acres.

Complaint' for land. Before Judge Edwards. Polk superior court. June 16, 1913. The defendants in error brought suit against the Seaboard AirLine Railway to recover a strip of land therein described, being the right of way occupied and used by the railway company through land lot 1282 in Polk county.

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

<p>Equitable petition. Before Judge Thomas. Berrien superior court. August 27, 1913.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. January 11, 1913.</p>

<p>Action, for damages. Before Judge Pendleton. Fulton superior court. July 21, 1913.</p>

<p>1. Where a policy of accident insurance contains a condition that it does not cover cases “where the accident or disability results wholly or partly, directly or indirectly, from voluntary exposure to unnecessary danger,” on the trial of an action on the policy the following instruction of the court to the jury is not error, where the evidence authorizes such charge: “If you believe the plaintiff’s husband did not voluntarily enter into a fight, but became involved in it by the fault of Zuber, and what he did was in defense of himself, then such act on the part of the plaintiff’s husband would not bar her right to recover, and she could recover the whole amount of the policy.” •</p> <p>2. The evidence for the plaintiff authorized the verdict, and the court did not err in refusing to grant a new trial.</p>

<p>Action for damages. Before Judge Hammond. Richmond superior court. April 23, 1913.</p>

<p>1. In a suit by a vendee against his vendor, for specific performance of a written contract for the sale of land, where the prayer of the vendee is to compel the execution of a deed containing a description different from that in the contract of sale, the contention being that the land in the two descriptions is the same, but as to this there being an issue of fact, it is not error to instruct the jury that the vendor “would not be bound to convey any other tract of land than the land she sold, and equity would not decree a performance, if she offered to do that and it had been refused.”</p> <p>2. Before equity will decree specific performance of a contract for the sale of land, there must be an unconditional tender of the purchase-price. An .offer to pay the purchase-price on delivery of a properly executed deed is not an unconditional tender. Tender by the vendee before suit is excused, if the vendor by conduct or declaration proclaims that if a tender should be made acceptance would be refused.</p> <p>3. Ordinarily in a contract for the sale of land time is not of the essence of the contract. Courts lean against such construction, for the reason that it would result in the enforcement of a penalty, and because interest is ordinarily treated as full compensation for the delay. Where time is not of the essence of the contract (as it was not in this case), the nonpayment of the purchase-price or any installment thereof, at the time stipulated in the contract, would not of itself authorize a rescission or forfeiture of the contract in a suit in equity by the vendor. Where a vendor for equitable reasons is entitled to a rescission for non-payment of the purchase-price when due, and notifies the vendee of his intention to claim a rescission if the purchase-money is not paid within a certain time, that time must be reasonable in view of all the circumstances.</p> <p>4. A vendee, upon payment of the purchase-money, is not entitled to have his vendor execute a deed to him purporting to convey land described differently from that contained in the contract of sale, and with recitals and admissions of fact not contained in the contract of sale.</p>

<p>Equitable petition. Before Judge. Mathews. Bibb superior court. March 6, 1913.</p>

<p>Action 'for breach of contract. Before' Judge Walker. Wilkes superior court. March 17, 1913.</p>

<p>Probate of will. Before Judge Walker. Warren superior court. August 14, 1913.</p>

<p>The court did not err in dismissing the case upon general demurrer.</p>

<p>Equitable petition. Before Judge Thomas. Berrien superior court. August 13, 1913.</p>

<p>Complaint for land. Before Judge Worrill. Miller superior court. July 8, 1913.</p>

<p>Action upon life-insurance policy. Before Judge Pendleton. Fulton superior court. July 17, 1913.</p>

<p>Probate of will. Before John D. Humphries, judge pro hae vice. Clayton superior court. August 18, 1913.</p>

<p>Complaint for land. Before Judge Rawlings. Jefferson superior court. January 11, 1913.</p>

Action for damages. Before Judge Rawlings. Emanuel superior court. February 22, 1913. Linton Durden brought suit against the Wadley Southern Railway Company, formerly the Wadley and Mount Yernon Railroad Company, hereinafter called the defendant, and alleged substantially the following facts: On the 1st day of June, 1906, plaintiff was run over by an engine on the track of the defendant company, and his left leg was mangled in such manner that it had to be amputated.

<p>1. A testator devised to his wife the whole of his estate, real and personal, “during her widowhood, to be as absolutely under her control and management as it now is under my own, being perfectly willing to trust my children to her care and her bounty. In the event of the marriage of my said wife after my death, then I wish my property to be divided equally among her and my children who may be then in life, share and share alike, including the natural increase of the slaves, but not the income of the property during her widowhood, it being my express intention that she shall not be held to account for any income, or any alleged waste or mismanagement. Should my said wife remain in widowhood during the term of her natural life, she is to have the same control, management, and interest in the property as above specified until her death, at which time I will and direct that it be divided equally share and share alike among my then surviving children and the children (if any) of such as may have died before her, the latter to take per stirpes, to them and their heirs forever.” Under this will the widow of the testator took an estate for life, or during her widowhood, without impeachment of waste, and at her death or marriage the remainder estate was to be divided equally among testator’s children then in life and the children (if any) of such as may have died, the latter taking per stirpes.</p> <p>2. The following language in the will: “After the payment of my just debts, I give . . to my wife . . during her widowhood, to be as absolutely under her control and management as it now is under my own, being perfectly willing to trust my children to her care and her bounty,” did not confer on the widow of testator the power of sale of the fee in the property devised; and where it appears that the widow executed a fee-simple warranty deed, both as executrix of the last will and testament of the testator, and also in her individual capacity, such deed would convey only the life-estate of the widow.</p> <p>3. Where a named executrix in a will, who was also a legatee under the will as life-tenant in all the property devised, executed a deed both in her representative and individual capacity, conveying all the real property devised, upon a valuable consideration, this act recognized a transferable interest in the life-tenant, and amounted to such an assent to the legacy by the executrix as authorized the life-tenant to convey her life-estate in the land.</p> <p>i. The following language in a will: “I give, devise, and bequeath the whole of my estate,.real and personal, to my wife, Elizabeth T. Belt, during her widowhood, to be as absolutely under her control and management as it now is under my own, being perfectly willing to trust my children to her care and her bounty,” does not create a trust estate in the property devised for the remaindermen. Nor does the whole will, as set out in the opinion, when taken together, create such trust estate.</p>

<p>Complaint. Before Judge Charlton. Chatham superior court. March 26, 1913.</p>

<p>Action for damages.' Before Judge Sheppard. Effingham superior court.- July 29, 1913.</p>

<p>Affidavit of illegality of execution. Before Judge Mathews. Bibb superior court. July 22, 1913.</p>

<p>Complaint. Before Judge Walker. Lincoln superior court. May 27, 1913.</p>

<p>Exceptions to auditor’s report. Before Judge Walker. Wilkes superior court. August 4, 1913.</p>

Injunction. Before Judge Walker. Lincoln superior court. October 29, 1913.

<p>Complaint for land. Before Judge Meadow. Franklin superior court. January 31, 1913.</p>

<p>Action for damages from conversion. Before Judge Meadow. Iiart superior court. January 31, 1913.</p>

<p>Equitable petition. Before Judge Meadow. Elbert superior court. March 6, 1913.</p>

<p>Complaint for land. Before Judge Meadow. Elbert superior court. January 4, 1913.</p>

<p>Probate of will. Before Judge Jones. Stephens superior court. June 28, 1913.</p>

<p>Complaint. Before Judge Fite. Gordon superior court. July 19, 1913.</p>

Injunction. Before Judge Hawkins. Laurens superior court. June 16, 1913. J. D. Smith died testate, his will was duly probated, and letters of administration were duly issued to T. H. Smith, the nominated executor, in DeKalb County. T. H. Smith, as executor, filed an equitable petition in the superior court of Fulton County, praying certain relief against T. B. Eagan and T. E. Lovejoy, receivers of the Hawkinsville Cotton Mills, and J. C. Cooper.

Action for damages. Before Judge Ellis. Eulton superior court. July 5, 1913.

<p>1. By the Civil Code (1910), § 3857, it is declared that “Probate in common form becomes conclusive upon all parties in interest, after the expiration of. seven years from the time of such probate, except minor heirs at law, who require proof in solemn form and interpose a caveat at any time within four years after arrival at age.” On consideration of the history of the legislation from which this section was codified, it is held that the words “or parties” occurring in the act of 1845 (Acts 1845, pp. 39, 40), from which the section mentioned was in part codified, are no longer of force.</p> <p>2. The propounder in the present case was one who claimed to be a legatee under an alleged will of the testatrix executed after that which had been probated in common form. He was the grandson of the testatrix, and his father was her sole heir at the time of her death. Accordingly, the propounder was not her heir, so as to fall within the exception provided by the section of the code above quoted.</p>

<p>Equitable petition. Before Judge Rawlings. Jenkins superior court. May 7, 1913.</p>

Action for damages Before Judge Charlton. Chatham superior court. May 22, 1913. This action was brought against the City of Savannah by T. B. J ordan, who was an employee of the city engaged at the time of the injury in driving a street cart.

Action for damages. Before Judge Charlton. Chatham superior court. June 11, 1913. Beulah E. Pounds brought suit against the Central of Georgia Railway Company, for damages resulting from the homicide of her husband, Ernest T. Pounds, who, while a passenger, was killed by Charles H. Fennell in the defendant’s station at Savannah.

<p>Probate of will. Before Judge Meadow. Madison superior court. January 30, 1913.</p>

<p>Equitable petition. Before Judge Meadow. Elbert superior court. March 14, 1913.</p>

<p>1. The court did not err in overruling the general demurrer.</p> <p>2. Even if no facts were sufficiently pleaded as a basis for the plaintiffs’ claim of damages' on the ground that the defendants had practiced fraud and had been stubbornly litigious, and if the paragraph claiming damages on those grounds should have been stricken, the overruling of the demurrer directed to this paragraph is not ground for reversing the judgment and remanding the case for another hearing, it clearly appearing that no amount was allowed as damages.</p> <p>3. The verdict in favor of the plaintiffs was practically demanded by the evidence. And while there are certain inaccuracies in the charges complained of, they are not of such a character as to have misled the jury upon any of the real issues in the case.</p> <p>4. The admission of evidence tending to show bad faith on the part of the defendants, and that they had been stubbornly litigious, is not cause for the grant of a new trial, as no damages were allowed upon this ground.</p> <p>5. The admission in evidence of a written statement of the vendor of the land, in reference to the intent and purpose of a certain instrument called an “escrow agreement,” could not have injured the defendants, inasmuch as the paper should have received the construction which the evidence objected to tended to show was the proper construction, independently of any extraneous testimony.</p> <p>6. Other evidence objected to as irrelevant was not of sufficient materiality to constitute grounds for a new trial.</p>

<p>Action for breach of contract. Before Judge James B. -Park. Baldwin superior court. January 16, 1913.</p>

<p>Complaint for land. Before Judge George. Wilcox superior court. August 9, 1913.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. June 30, 1913.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. January 27, 1913.</p> <p>Butler and Gilbert DeLoach brought suit against Martha Jefferson, and alleged substantially the following: On June 26, 1890, W. W. Williamson as trustee conveyed to Alice DeLoach a described parcel of land in Chatham county, containing 4.84 acres. The purchase-money for the land was paid to the trustee by the plaintiffs, their father (Edward DeLoach), “-and said defendant.” The deed was taken in the name of Alice DeLoach, who was the wife of Edward DeLoach and the mother of the plaintiffs and of Martha Jefferson, with the distinct understanding and agreement that upon the death of Alice DeLoach the land should go to her heirs at law and be equally divided between them, which agreement was well known to Martha Jefferson, as well as the fact of the payment of the purchase-money as above set out. On June 25, 1904, Alice De-Loach conveyed to Gilbert DeLoach a lot of land 47 by 100 feet, this being a part of the land before described; and on April 27, 1895, she conveyed to Butler DeLoach a lot of the same dimensions from the same land. She also gave to Butler DeLoach lot number 2 of the same parcel, having a front of 42 feet and a depth of 100 feet, and immediately adjacent to the other lot, number 1. No deed was executed to this lot, but Butler DeLoach went into possession of it about fourteen years ago, made improvements on it, and has continued to live on it. Alice DeLoach gave to Martha Jefferson a lot on the northwest corner of the original parcel, approximately 42 feet front and 100 deep, of which Martha took possession, and still holds possession; but no deed was made to her. All these lots were conveyed by Alice DeLoach by the mutual consent of all the parties, at interest. Notwithstanding the agreement with reference to the purchase of the land, Alice DeLoach made a will under which she devised to Martha Jefferson what remained in the original parcel of land, after taking from it the portions before conveyed. The will has been duly probated, and Martha Jefferson is in possession of the remainder of the land. Edward DeLoach died intestate, and the plaintiffs and defendant are his only heirs at law. Each of them is entitled to an undivided third interest in the remainder of the land. The plaintiffs have made demand on Martha Jefferson for their interest, but she refuses to convey it to them, claiming that by virtue of the will of their mother she is entitled to the entire tract. By virtue of the understanding and agreement at the time of the execution of the deed, Alice DeLoach held the land for the benefit and use of the plaintiffs and the defendant, and on her death plaintiffs were entitled to their undivided interest in it. They pray for decree so adjudging, declaring the devise to be void, and ordering that the property be so divided that each of plaintiffs and the defendant shall have one third of it in fee. The defendant in her answer denied each and every material allegation of the petition. The evidence did not show that any definite amount was paid by the plaintiffs. A nonsuit was granted, and they excepted.</p>

<p>Complaint. Before Judge Mathews. Bibb superior court. March 7, 1913.</p>

<p>Claim. Before Judge Sheppard. Bryan superior court. J an- • uary 3, 1913.</p>

<p>Attachment and intervention. Before Judge Jones. Babun superior court. February 25, 1913.</p>

<p>Quo warranto. Before Judge Worrill. Terrell superior court. December 5, 1913.</p>

Action upon foreign judgment. Before Judge Bell. Fulton superior court. May 20, 1913. Mrs. Cordelia Underwood brought suit against H. C. Underwood, on a judgment for alimony which she had obtained against him in Kentucky. On the trial the court overruled a motion for a nonsuit, and, after hearing all the evidence, directed a verdict in favor of Mrs. Underwood for the amount sued for on the Kentucky judgment. The defendant excepted.

<p>Complaint ior land. Before Judge Conyers. Appling superior court. October 16, 1912.</p>

<p>Distraint. Before Judge Charlton. Chatham superior court. June 25, 1913.</p>

<p>Trover. Before Judge Hammond. McDuffie superior court. July 24, 1913.</p>

<p>1. An order to sell land, granted to an administrator by the court of ordinary, describing the land as located in a named county and known by a certain name, and as containing a stated number of acres, more or less, and lying alongside a certain river, followed by an additional description giving the calls for three sides of it, is not void for uncertainty. When property has a descriptive name, it may be conveyed by that name; and such description will prevail over one which is intended to be a further description, but which is uncertain and imperfect. Extrinsic evidence is receivable to apply the description to its subject-matter.</p> <p>2. An administrator’s deed, accompanied by the order of the ordinary granting leave to sell, is admissible as a muniment of title, without the production of the letters of administration.</p> <p>3. An administrator’s deed without an order of sale, or a sheriff’s deed not accompanied by the execution under which the property is sold, is admissible in evidence as color of title.</p> <p>4. An ancient map of the public roads of a county, purporting to have been made by authority, and coming from the proper custody, is competent evidence to show the existence and location of the public roads of the county at the time it was made; and in a contest between coterminous landowners, where a road delineated on the map is claimed to be a boundary, such map is relevant, and is receivable in evidence when upon inspection by the court the map appears to be what it purports to be and is shown to have been produced from the proper depository.</p> <p>5. An unofficial survey is admissible in evidence when proved to have been correct.</p> <p>6. The charge of the court in respect to prescriptive title was an inaccurate statement of the law.</p> <p>7. A disputed boundary line between coterminous proprietors may be established by oral agreement, if the agreement be accompanied by actual possession to the agreed line, or is otherwise duly executed.</p> <p>8. Where a plaintiff seeks to enjoin a defendant from trespassing on land, on the ground that he has title to the premises, and the defendant in his answer asserts title to the premises, and both parties offer evidence to substantiate their respective claims, it is error to instruct the jury that their verdict would not determine the title to the premises.</p>

<p>Petition for injunction. Before Judge Mathews. Bibb superior court. June 23,1913.</p>

<p>Illegality of execution. Before Judge Meadow. Franklin superior court. March 27, 1913.</p>

<p>Complaint. Before Judge Grabam. Pulaski superior court, April 11, 1913.</p>

<p>Exceptions to auditor’s report. Before Judge Thomas. Ware superior court. July 19, 1913.</p> <p>The Bank of Waycross made an assignment for the benefit of its creditors, on November 23, 1907. At a later date receivers were appointéd. Certain persons intervened, alleging that on July 11, 1907, the bank increased its capital stock, and the intervenors purchased some of the new shares at different times extending to September 3, and that they were induced to take these shares by fraud-lent representations; and they sought to have their subscriptions canceled, and in cases where payments had been made they sought to recover such payments. Demurrers to these interventions were sustained, and the interventions were dismissed. In this court the judgments were reversed. Gress v. Knight, 135 Ga. 60 (68 S. E. 834, 31 L. R. A. (N. S.) 900). The issues'raised by the interventions were referred to an auditor, who filed a report in each case, two paragraphs of which were as follows: “That the intervenor has no right of rescission of his subscription as against creditors of the Bank of Waycross whose debts were created subsequent to his subscription, and which are outstanding and unpaid.” “That the indebtedness of said Bank of Waycross to creditors since the subscription of the intervenor, and which is outstanding and unpaid, aggregating the sum of sixty-five thousand two hundred 'and one dollars and forty-three cents, as follows:</p> <p>Individual deposits on active accounts $37,910.94</p> <p>Individual deposits on inactive accounts 13,213.89</p> <p>Individual deposits on savings accounts 2,760.17</p> <p>Individual deposits on certificates 11,316.43</p> <p>Making a total of such indebtedness $65,201.43.”</p> <p>The first of these paragraphs was classified as a ruling of law, and the second as a ruling of fact. Exceptions were filed to the auditor’s report, which were overruled, except that the presiding judge reduced the finding that the amount of the new indebtedness of the bank was $65,201.43, so as to make it read $55,085.00, the court holding that a certificate of deposit which had been included in the computation of the new indebtedness was not properly a part thereof. J. E. Wilkes, Mrs. C. S. Rigsby, ^nd J. E. Neal and P. S. Knox excepted separately. The eases were argued together in this court.</p>

<p>Attachment. Before Judge Pendleton. Fulton superior court. May 23, 1913.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. July 3, 1913.</p>

<p>Partition. Before Judge Frank Park. Liberty superior court. July 28, 1913.</p>

<p>Complaint for land. Before Judge Bawlings. Screven superior court. June 19, 1913.</p>

Complaint. Before Judge Mathews. Bibb superior court. April 29, 1913.

<p>Action for breach of warranty. Before Judge Mathews. Bibb superior court. July 18, 1913.</p>

<p>Action for damages. Before Judge Ellis. Eulton superior court. January 30, 1913.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. July 5, 1913.</p> <p>The Bealty Trust Company contracted with H. L. Stevens to build a theater and office building. The contractor gave a bond, with the Massachusetts Bonding and Insurance Company as his surety, conditioned for the faithful performance of his contract. Before the building was completed the Bealty Trust Company. brought its equitable petition against Stevens, the surety on his bond, and various lien claimants, alleging that Stevens had not completed the building and had abandoned the work, and that it would take large sums of money to complete it; and that various parties named as defendants were claiming liens against the property. It was prayed that these claimants of liens be restrained from prosecuting their claims at law, and be required to intervene and set up any action they might have against the Bealty Company or its property. The claimants of lien filed a cross-petition, alleging that. Stevens had properly performed his contract, and that they had furnished him with labor and materials which were used in the construction of the building, for which they had duly filed their claims of lien; and they prayed for judgment against Stevens and for the foreclosure of their liens against the Bealty Company’s property, and further asked for an injunction and other equitable relief. The court granted the injunction as prayed, and provided for its dissolution by the Bealty Company giving bond, which was done. At the appearance term the surety on Stevens’ bond filed a demurrer general and special, which was overruled, and this judgment was affirmed here. See Massachusetts Bonding Co. v. Realty Co., 137 Ga. 693 (73 S. E. 1053), where the petition is stated more in detail. While the case was pending in the Supreme Court on the exceptions to the overruling of demurrers of the surety, the trial court, by consent of the Realty Company, 'appointed an auditor with authority to pass upon all issues of law and fact involved in the case. The case was tried before the auditor, who filed his report. To this report exceptions of law were filed by the Realty Company and by the surety. The exceptions were overruled, and those filed by the surety were dismissed; and final judgment was rendered. Exceptions were taken to this court ; and the decree was reversed, with direction that the order overruling the exceptions of the Realty Company be set aside, and that the case be again heard upon the exceptions of both that company and the surety. 139 Ga. 180 (77 S. E. 86). Upon the return of the remittitur the court overruled all exceptions of law, disapproved the exceptions of fact, and approved the findings of the auditor. Certain issues arising directly between the Realty Company and the surety were heard upon an agreed statement of facts; and upon these the court directed a verdict in favor of the Realty Company. The auditor’s report -was made the judgment of the court, final decree was rendered in favor of the various claimants of liens, and judgment was rendered in favor of the Realty Company against the surety. The surety sued out a bill of exceptions, assigning error upon the overruling of its exceptions to the auditor’s report, on the direction of the verdict, and on the decree. The Realty Company, by cross-bill, assigned error upon the overruling of its exceptions to the auditor’s report, and on the final judgment.</p>

Action for damages-. Before Judge Roan. DeKalb superior court. March 29, 1913. This action was originally brought by Mrs. Jennie Auchinachie against the Georgia Railroad and Banking Company, to recover damages for the alleged wrongful death of her husband. The plaintiff died pending the suit, and her minor daughter, by next friend, was made a party in her stead.

<p>Equitable petition. Before Judge Meadow. Elbert superior court. November 9, 1912.</p>

<p>Complaint. Before Judge Jones. Habersham superior court. June 28, 1913.</p>

<p>Action for breach of contract. Before J udge J ones. Habersham superior court. January 14, 1913.</p>

<p>There is no provision of law in this State for an amendment to the notice to be given to the owner of property which is sought to be condemned for public purposes under the Civil Code, §§ 5206 et seq., while the matter is before the assessors. Accordingly, where, pending proceedings under an original notice to the owner of property, seeking its condemnation for public purposes under the code sections cited, a petition was filed by the eondemnee against the condemnor, to enjoin the proceedings, and where there had been a bona fide selection by the eondemnee of the same right of way sought to be condemned, under a ruling of this court in a similar ease (Western & Atlantia R. Co. v. Western Union Tel. Co., 138 Ga. 420), the condemnation could not be had under the original notice; and where subsequently the condemnor amended its original notice, setting out substantially a new cause of action, the court erred in not granting an injunction against the condemnation proceedings.</p>

<p>Injunction. Before Judge Bell. Fulton superior court. September 6, 1913.</p>

<p>Injunction. Before Judge Bell. Eulton superior court. September 30, 1913.</p>

<p>Action for damages. Before Judge Frank Park. Laurens superior court. June 9, 1913.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. January 4, 1913.</p>

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

<p>Equitable petition. Before Judge Ellis. Eulton superior court. June 7, 1913.</p>

Action for damages. Before Judge Rawlings. Emanuel superior court. July 16, 1913. Emanuel sued the Georgia and Florida Railway Company for damages, alleging, among other things, as follows: His duties were only to labor as a section-hand. The hands were carried to and from work on a gasoline-motor-car. It was no part of his duty to operate, manage, inspect, repair, or care for the car. He was ignorant of machinery, and could not have discovered a defect in it by inspection.

<p>Action for damages. Before Judge Rawlings. Washington superior court. June 2, 1913.</p>

<p>Equitable petition. Before Judge Walker. Wilkes superior court. April 24, 1913.</p>

<p>Exceptions to auditor’s report. Before Judge Pendleton. Eulton superior court. June 27, 1913.</p>

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

<p>Equitable petition. Before Judge Hawkins. Worth superior court. June 11, 1913.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. June 10, 1913.</p> <p>Helen Cutsinger, who alleged that she was a citizen of the United States, and of Fulton County, Georgia, filed her petition against the City of Atlanta, the chief of police of that city, the recorder, the mayor, -aldermen, and members of council, alleging in substance as follows: On and prior to October 7, 1912, the City of Atlanta had permitted a rooming house or lodging house to be conducted at number 115y2 Decatur street. Being physically unable, at that time, to conduct it herself, she employed one Harding to conduct it for her. On the date mentioned Harding applied for and obtained a license to operate the business and conduct it for the plaintiff until she was able to take charge of it for herself. Early in January, 1913, having resumed the conduct of her own business, the plaintiff applied to the city clerk for a license, tendering him $6.25, the amount due for one quarter, in accordance with the tax ordinance of the city. The clerk declined to receive the tender or issue the license, stating that she would be compelled to file a written application therefor. While not conceding the right of the mayor and general council to pass upon such applications as to a business of this character, which was a useful and lawful business, or to deny her a license, yet, in order to be in harmony with the defendants if possible, she filed an application for a license to operate a lodging house for men only at the place named. Pending this application she was advised by the chief of police, through her counsel, that “no case would be made against her” for conducting the business until after the application had been passed on, and then only if it should be refused. She accordingly proceeded with the conduct of her business until a few days before the filing of the petition, when she was notified by a police officer, who stated that he was acting under the direction of the chief of police, that her application had been refused and she would be compelled to close, and would not be allowed longer to operate her lodging house, that if she attempted to do so she would be charged with the commission of 'a violation of the municipal ordinance of the city against doing business without a license, that her employees would be arrested, and that she would be carried before the recorder and tried and punished by fine or imprisonment, and that other cases would be instituted against her from day to day until she closed her lodging house. During all the time in which she has been engaged in the business she has been conducting an orderly place, catering to white male trade only, and strictly complying with the laws of the State and the ordinances of the city, and seeking to earn an honest living by the .proper pursuit of a legitimate line of business. She has been persecuted, harassed, humiliated, and damaged by the chief of police by continually “flooding” her place of business with police officers and nlainclothes detectives, without any search-warrant or other legal authority. By reason of these continued raids the business and patronage of her lodging house has been considerably and materially diminished, and her revenue has been much reduced. She caters to a class of “country white male trade,” and the poorer classes of white men, many of whom pay only twentjr-five cents for a bed or cot. Such men are easily intimidated and alarmed at police raids and illegal searches, and they either leave or do not return to her place of business; and she is also humiliated, disgraced, and mortified by such continued illegal and unwarranted action on the part of the police officers under the direction of the chief. She has had as many as ten policemen in her house at one time. A squad of “plain-clothes men” will suddenly enter her house; the officer in command will take charge of the front door, the only place of exit, and will send his force from room to room searching the house. These police squads have taken possession of her lodging-house register and have gone from room to room and asked the occupant of each bed or room his name, waking them if necessary, and seeing if they were in the proper room, and if their names corresponded to the names on the register. To the best of her knowledge and belief, at none of these times has there been any warrant of any kind or character for such action. She has protested against these raids,, but has been advised that she had better submit without comment and allow such persecution, as it would be necessary for her to have the permission of the chief of police in order to procure her license, and that he would oppose her obtaining the license if she did not submit. She filed her application for the license on January 3, 1913, but the council did not refuse it until March 6 following. During that period her place of business has been under constant police surveillance and subject to frequent raids, and at no time has there been a single complaint of any violation of any City, State, or Federal law by her or any occupant or patron of her lodging house. Although she has conducted her business at the place mentioned for months, and in absolute compliance with the law and all police regulations, and has submitted to the police raids mentioned, nevertheless she is advised by a representative of the chief of police that she must close her place of business and yield her right to make an honest living, “unless she meekly submits to the will of the chief of police, J. L. Beavers, who, petitioner believes, is responsible for the denial of her application for license by the mayor and general council of the City of Atlanta.” Her lodging house is located near to the police headquarters and within two blocks of the call-office of the police department. Oh March 23, 1913, the chief of police went in person to her place of business, took charge of her register, instructed an officer who accompanied him to take the names of men who had registered therein, ordered her to allow no one else to register, and to close up her house, and served her with a copy of charges to appear at the recorder’s court for violating the rooming-house ordinance. A case was docketed against her, which is now pending. “Your petitioner is advised and believes that said chief Beavers, although he knew that he had used every endeavor possible to find your petitioner violating some law. or ordinance, and had failed, yet wrote the police committee of the general council, to whom this application was referred, and recommended to them that the application of petitioner be denied.” The action of the chief of police in making this case and in threatening to make other cases from day to day is based upon an amendment to .the charter of the City of Atlanta, enacted by the legislature in 1912 (Acts 1912, p. 573, sec. 13), which reads as follows: “That the Mayor and General Council be and they are hereby authorized to regulate hotels, lodging houses, dance halls, rooming-houses, and similar places, and they are further authorized and empowered, by ordinance, to require all person or persons owning or operating such hotels, houses, or halls to apply for a license for the operation of same, and such license may be granted or refused in the discretion of the Mayor and General Council, and their action in the premises shall be final. For a violation of such ordinance or the operation without a license granted, as herein provided, any person or persons adjudged guilty thereof in the Becorder’s Court shall be subject to a sentence to pay a fine of not exceeding five hundred dollars, or to work on the public works of the city for not exceeding thirty days, either or both in the discretion of the recorder.” Under this the mayor and general council adopted an ordinance the first section of which reads as follows: “Be it ordained by the Mayor and General Council, that any person, firm, or corporation desiring to open or operate a hotel, lodging house, dance hall, rooming house, or similar place shall, before opening or operating such house or place, file a petition for a license, addressed to the Mayor and General Council. If said license is granted, then the City Clerk is authorized to issue and receipt for a business license for sucb house; but if such license is refused, then such business license shall not be issued, and it shall be unlawful for any person, firm, or corporation to operate such house or place.” The second section imposed a penalty upon “any person, firm, or corporation owning or operating any hotel, lodging house, dance hall, rooming house, or similar place, without -being granted a license therefor by action of the mayor and general council.” Under this ordinance the defendants are now seeking to close her house, stop her business, and involve her in a multiplicity of criminal prosecutions. The application which she filed was referred to a subcommittee of the general council, known as the police committee, though without notice to her. She is advised and believes that the chief of police, “by private official letter” to the chairman of the police committee, without notice to her, undertook to prejudice the chairman and other members of the police committee, and through their report the mayor and general council, against granting the application of the plaintiff, and, to the best of her knowledge and belief, undertook privately in personal conversation to influence the members of the police committee to make an adverse report upon her application, without giving her the privilege of knowing the reasons assigned for such action on the part of the committee, or an opportunity to be heard upon them and to reply thereto. At one time her counsel happened to be present at a meeting of the committee and spoke to them in relation to her application, but she is not advised as to whether the committee had passed adversely upon it at that time or not. At that particular meeting the chief of police was present, but offered no public objection to the application^ and no notice was given or opportunity for her or her counsel to answer any objection at that meeting. The entry upon the application shows an adverse report by the committee, dated January 20, but it was not passed upon by the council until March 6. She is advised and believes “that said police committee met in secret session about half an hour before the meeting of the general council, and, upon the information, hot under oath, of the said chief Beavers, adversed or passed unfavorably upon the petition or application.” The action of the general council followed the recommendation of the police committee, without any investigation on the part of the general council; and under the ordinances of the city she would not have been permitted to be present and to have discussed the merits of her application, and the only method of reaching the city government was through its police committee. She is a woman of mature years, now past middle life. On account of her great weight (two hundred and eighty-six pounds), and on account of her having undergone several surgical operations, she is unable to do manual labor or remain long standing upon her feet. She is familiar with the lodging-house business, and it is practically the only business with which she is familiar and which she is physically able to carry on. She has built up a sufficient business to support herself reasonably, and the name and good will of her business at the location mentioned is an intangible but valuable asset. There can be no reason for any denial of a license to operate a lodging house at this location. The place is located on the second floor of a building, with a stairway entrance to the street, and affects and injures no one; but the location is one where a hotel or lodging house of a cheap character is needed to 'accommodate a class of poor laboring men working in that locality, and men from the country who have come to town for the sale of their goods and the purchase of merchandise. The business was in operation at the time of the passage of the ordinance above mentioned, and the plaintiff had made large investments in furniture, in papering and painting of walls and woodwork, in carpeting of floors, halls, and steps, and in the installation of gas and electric fixtures and equipment. Practically all of this expenditure will be lost if she is compelled to cease doing business, as well as the name and good will of her business. “Petitioner is advised and believes, that, owing to the antagonistic attitude of the chief of police toward her, she will not be allowed by the mayor and general council of the City of Atlanta to have any license to operate a lodging house at any other point available to her in the City of Atlanta, and that her rights and her experience in the lodging-house business are forever lost to her, as far as being able to use the same in the City of Atlanta.” The patronage of a lodging house is affected by so many considerations that it is impossible to estimate the damages which would result from a destruction of the business. To press the proceeding in the recorder’s court would expose her to humiliation, embarrassflient, expense, and possibly to temporary confinement, should it become necessary for'her to have the action of the recorder reviewed by certiorari; and this might continue for months oefore the case could be heard. The plaintiff, having no real estate, and not being allowed to continue her business, could in all probability procure no bondsman, but would be compelled to languish in jail, and in the meantime her property, her business, would be destroyed; and even though she should ultimately win, the victory would be an empty one, and she would be discharged from jail without a vestige of property left. The multiplicity of the threatened quasi criminal cases would bankrupt her in the payment of counsel fees and other expenses. "Such action amounts to nothing more or less than absolute confiscation of the property of petitioner and her utter ruin financially and in a general business in the said City of Atlanta.” She will therefore be irreparably damaged, and have no -legal remedy or redress. "Your petitioner shows that said criminal prosecutions now threatened to be continued are obviously nothing but a circuitous method of depriving petitioner of her property and property rights in said business, and are nothing more than an attempt by the municipal authorities of the City of Atlanta, under the pretense of seeking the good of the portion of society entrusted to their supervision, are in fact attacking the vested rights, property rights, of your petitioner.” The threatened repeated prosecutions, under color of municipal ordinances, if not prevented, will practically destroy her vested property.rights; "and said criminal prosecutions are a wresting of the criminal side of the law from its legitimate purpose, in matters to which they do not properly apply, and are used merely as a cloak to hide the effort to prevent petitioner from engaging in her useful and lawful occupation.” The act of the legislature above quoted is unconstitutional as being in violation of the fourteenth amendment of the constitution of the United States (Civil Code (1910), § 6700), in that it attempts to vest in the mayor and general council the arbitrary right to abridge the privilege of the plaintiff to do business, and thus denies to her due process of law and the equal protection of the laws. The ordinance is_unconstitutional for the same reason; as is also the action of the mayor and council. The act of the legislature and the ordinance based upon it are also in conflict with the provision of the State constitution which declares that "Protection to person and property is the paramount duty of government, and shall be impartial and complete” (Civil Code (1910), § 6358). They also violate the provision of the State constitution that "no person shall be deprived of life, liberty, or property, except by due process of law” (Civil Code (1910), § 6359). The act of the legislature aud the ordinance are unreasonable, and seek to invest the mayor and general council with arbitrary power, with no rule or regulation to guide it, or to prescribe terms for its exercise, or put any limitation upon it, and without prescribing any terms or conditions upon which a permit or license can be obtained, or allowing any appeal from the decision of the general council, or prescribing any rules of procedure. Even if discretion is lodged in the municipal authorities, it has not been fairly administered, but has been arbitrarily and grossly abused, amounting to a discrimination against her and an oppression of her as a citizen, and it is being capriciously exercised in an arbitrary manner. In fact the abuse of discretion amounts to a failure ' to exercise inunicipal discretion, and to an arbitrary undertaking to exercise unlimited power, without recognition of the rights of the plaintiff, and without giving to her an opportunity to be heard \ in her own behalf. She is willing to submit to any reasonable reg- < ulations that do not amount to a prohibition or a confiscation of her property and civil rights, and she offers to submit to any reasonable rule and regulations the court may impose. She prays that an injunction be granted to prevent the defendants from interfering with the operation of her business, or proceeding with quasi criminal prosecutions against her.</p> <p>The defendants demurred to the petition, on the grounds that no cause of action was set out; that it undertook to enjoin a criminal prosecution by equitable procedure; that it appeared that the city was authorized to grant or reject the application for license and that it had rejected the same, and no injunction should be granted against the further prosecution of the plaintiff; and that no grounds of equitable interference are set out. The demurrer was sustained, and the plaintiff excepted.</p>

<p>1. The act approved December 22, 1829 '(Acts 1829, p. 27), which declared “That from and after the passage of this act the jurisdiction of Butts County be and the same is extended over the Ocmulgee river, and islands on said river, adjoining said county of Butts,” properly construed, placed the whole of the river and islands therein, adjoining the County of Butts, as its boundary lines existed at the time of the passage of the act, within that county.</p> <p>2. The provision, “Whenever a stream of water is the boundary of a county, the jurisdiction of the county shall extend to the center of the main channel of such stream,” adopted in 1863, included in the several codes, and now found in the Civil Code (1910), § 32, is to be construed with other code provisions similarly adopted, and now contained in the Civil Code, as follows: “If there is a law in force, at the time of the adoption of this Code, having entirely a local application, such local law is not repealed by this Code, unless so expressly declared” (§ 11); and “The State is divided into one hundred and forty-six counties, whose boundaries and limits shall be ascertained by the several acts laying off the same, and those amendatory thereof” (§ 31). So considered, the code provision first mentioned did not operate to repeal the act of 1829, set forth in the first headnote.</p> <p>3. Civil Code (1910) § 1069 is inapplicable to electric-light and power companies, required under the Civil Code, §§ 987, 988, 1019, to make their returns of property for taxation to the comptroller-general.</p> <p>4. The allegation as to laches of the complaining county, in view of the foregoing ruling, is not well founded.</p>

Injunction. Before Judge Bawlings. Bulloch superior court. March 2, 1914. I. V. Simmons and others filed their petition against Gertrude Hagins and P. C. Hagins, seeking an injunction and decree against the obstruction of a highway, and alleging as follows: There is a public road in the county of Bulloch, known as the old five-chop road, which petitioners have used in reaching another public road with-which it intersects.

<p>Certified question; from Court of Appeals (Case 5373).</p>

<p>1. In the prosecution of one charged with a violation of Penal Code section 328, defining the offense of compounding a felony, in order to authorize the conviction of the accused it is essential to prove the actual commission of the felony charged to have been compounded.</p> <p>2. Under an indictment in this State for aiding and abetting another in compounding a felony, by persuading the other to desist from the prosecution of one charged with felony, the venue is sufficiently proved where it is shown that after the abettor addressed the other in persuasive language, in another State, the person addressed consented to desist from the prosecution, and the two then repaired to the jurisdiction and executed a writing, agreeing to desist from the prosecution.</p>

<p>Indictment for murder. Before Judge Sheppard. Tattnall superior court. January 21, 1914.</p>

<p>1. Where a grand jury had been properly drawn, summoned, and impaneled to serve during a term of court continuing two weeks, and, having completed their work at or near the end of the first week, were discharged by the court for the term, and on the day following their discharge a homicide was committed in the county in which the court was being held, and the court by appropriate written order directed the sheriff and regular bailiffs sworn at the term of the court then being held to resummon the same grand jury to reconvene during the second week of the court for the purpose of investigating the case of the person charged .with the murder of the person killed, and also to take into consideration any other matter that might legally come before the grand jury during the term, such reconvoking of the grand jury was legal, and an indictment properly found hy them against such person was also legal.</p> <p>(a) The order of the court reconvening the grand jury, after they had been discharged, had the effect of abrogating the former order of discharge.</p> <p>2. Under the facts of this case there was no abuse of discretion in overruling the motion for a continuance.</p> <p>3. One who loans money to another for the purpose of paying counsel to assist the solicitor-general in the prosecution of a case of the State against one charged with murder is not disqualified to serve as a juror on the trial of such a case, where it does not appear that the juror has any interest in the prosecution, or is otherwise disqualified.</p> <p>4. The requests to charge the jury were substantially covered hy the general charge of the court, and it was not error to decline them.</p> <p>5. Under the evidence in this case voluntary and involuntary manslaughter were not involved, and the court did not err in failing to charge the jury the law applicable thereto.</p> <p>6. Where complaint is made that the solicitor-general, during the trial of the case, indulged in improper remarks to the jury, but no objection was made thereto at the time and no ruling was invoked, this will not require a new trial. Herndon v. State, 111 Ga. 178 (3), 181, and cases cited (36 S. E. 634).</p> <p>7. The remaining assignments of error are without substantial merit. The verdict is supported by the evidence.</p>

<p>Indictment for murder. Before Judge Graham. Bleckley superior court. April 24,. 1914.</p>

<p>Indictment for murder. Before Judge James B. Park. Jones, superior court. June 2, 1914.</p>

<p>The provision in the charter of Eome authorizing that municipality to prohibit billiard and pool rooms kept for public entertainment, and an ordinance passed by such city making such provision effective, are not void because of any collision with the general tax act imposing a tax on the keeper of billiard and pool tables kept for public use, on the ground that the former is special legislation and violates the constitutional inhibition against the enactment of a special law in a case for which provision has been made by an existing general law.</p>

<p>Where a new note containing a contract of conditional sale, reserving title to the same property in the vendor until payment of the purchase-money, was taken to secure the same debt, and it was recited in the renewal note that it was given only for the purpose of extending the old conditional-sale note, this did not operate to extinguish the old note so as to postpone it to an intervening mortgage given by the vendee, although the old contract of conditional sale may have been marked paid, surrendered to the vendee, and canceled of record.</p>

Petition for injunction. Before Judge Graham. Bleckley superior court. April 29, 1914. C. B. and A. L. Adams brought their petition against W. D. Porter as the tax-collector, and J. A. Floyd as the sheriff, of Bleckley county, to enjoin them from further proceeding to collect an amount claimed by them to be due as State and county taxes for the year 1913 upon the plaintiffs’ lands tying in Bleckley county, and from enforcing the collection by levy and sale.

<p>Petition for injunction. Before Judge Thomas. Berrien superior court. February 14, 1914.</p>

<p>Equitable petitions. Before Judge Bell. Eulton superior court. October 15, 1913.</p>

<p>Certified question; from Court of Appeals (Case 5499).</p> <p>The Court of Appeals propounded to the Supreme Court the following question, a decision of which was certified to be essential to a determination of the case, to wit: “Where a judge is requested to give his charge to the jury in writing, and his instructions to the jury are confined to the direction of a verdict, does section 4847 of the Civil Code require that the direction shall be written out and read to the jury; and is the giving of such a direction orally, instead of in writing, an error requiring the grant of a new trial ? In this connection the attention of the Supreme Court is called to the ruling in Harris & Mitchell v. McArthur, 90 Ga. 217 (4), which counsel for the plaintiff in error seek to have reviewed and overruled.”</p>

<p>Petition for injunction. Before Judge Meadow. Franklin superior court. May 16, 1914.</p>

<p>'Certified questions; from Court of Appeals (Case 5739).</p>

<p>1. After a person accused of crime has been convicted and a new trial has been denied him, and the judgment has been affirmed by this court, an extraordinary motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge (there . being certain general rules as to evidence of particular kinds and as to diligence, etc.); and a refusal to grant a new trial on such a motion will not be reversed unless such discretion is abused.</p> <p>2. In view of the nature of vthe alleged newly discovered evidence on the basis of which an extraordinary motion for a new trial was made in the present case, and of the strong counter-showing-made by the State in regard to it, there was no abuse of discretion on the part of the trial judge in refusing to grant a new trial; nor was there error in overruling the motion on any of the grounds set out therein.</p>

<p>Indictment for murder. Before Judge Wright. Eloyd superior court. May 14, 1914.</p> <p>Clint Baker was indicted for the murder of Ernest Richard Lamb, alias Ernest Richard. The evidence on behalf of the State tended to show a case of murder by shooting. That on behalf of the defense tended to show the following, among other facts: Several nights before the homicide the deceased, the accused, and two others had a fight, in the course of which the accused was cut in the head and his clothing was cut in several places. Lamb, the deceased, had a bad character for violence. A few days before the homicide he said to a witness that Baker, the accused, had cut him, and that “he would have to do it, over again.” One witness testified that Lamb said that he was going to get even with the man who cut him; another testified that Lamb said he thought he would kill Baker. On another occasion he said that “this thing aint settled yet.” On the night of the homicide Lamb and two others were in a store. Baker went in to get some tobacco. As he and another started to go home, Lamb met him and asked him what made him cut Lamb. Baker denied having done so, but Lamb insisted, and proposed to Baker to go outside, as he wished to talk to Baker. The latter said he would not go unless Lamb would make friends, which Lamb’ declined to do. Baker started home, and Lamb followed him. He told Baker that if the latter went up that street (which was the way that led to Baker’s home) Baker would have to fight him. Lamb then ran his hand into his pocket and brought out something which looked like a knife, and, raising his hand, advanced toward Baker, when the latter shot him.</p> <p>The accused was convicted. He moved for a new trial, which was denied, and he excepted.</p>

<p>Indictment for murder. Before Judge Walker. Wilkes superior court. May 30, 1914.</p>

Indictment for murder. Before Judge Hill. Eulton superior court. June 27, 1914. Burett Hickman was convicted of the murder of H. G. Bennett, and sentenced to be hung. The court refused him a new trial, and he brings error. From the testimony submitted on behalf of the State it appears that Bennett was a night-watchman or guard in the freight-yards of the Seaboard Air-Line Bailway in the city of Atlanta.

<p>1. It was competent for a witness who testified that he had experience ill firing shells of a given description and had observed the impression made upon objects when struck by a shot fired from shells of that character, and who had also examined and probed the wound of the person alleged to have been murdered, to state as his opinion that the wound upon the deceased was made by the discharge of a shell of the character referred to.</p> <p>2. The contention of the plaintiff in error in this case being that he fired the fatal shot to prevent the deceased from shooting and killing him, the court did not err in charging the jury as follows: “Justifiable homicide, as applicable to the defense set up in this case, means killing in self-defense, or in defense of person against one who manifestly intends by violence or surprise to commit a felony on the person killing.”</p>

<p>Injunction. Before Judge Cox. Decatur superior court. January 20, 1914.</p>

The Court of Appeals certified to the Supreme Court the following questions (Case No. 5379): 1.

<p>Habeas corpus. Before Judge Walker. Taliaferro superior court, May 19, 1914.</p>

<p>The Court of Appeals certified to the Supreme Court the following questions (Case No. 5574) : Is the act of the General Assembly of 1913, “to carry into effect in the City of Atlanta the provisions of the amendment to paragraph 1 of section 7 of article 6 of the constitution, ratified October 2d, 1912, relating to the abolition of justice courts . . in certain cities,” and “in pursuance thereof to abolish all justice courts . . in the City of Atlanta, Georgia, and to establish in lieu thereof the Municipal Court of Atlanta in the City of Atlanta,” etc. (Georgia Laws, 1913, p. 145), ineffectual to confer upon the Court of Appeals jurisdiction of this writ of error, because the act of the General Assembly of 1912 (Ga. L. 1912, p. 30), proposing the said amendment to the constitution, is invalid, or ineffectual to authorize such writs of error, for any of the following reasons?</p> <p>1. That the said act of 1912 is repugnant to article 3, section 7, paragraph 8, of the constitution, which provides that “No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof;” because: in its title this act purports to amend only the paragraph of the constitution which provides that “there shall be in each militia district one justice of the peace,” while in the act it is sought to change other parts of the constitution, e. g., article 6, section 2-, paragraph 9, which defines the jurisdiction of the Court of Appeals as to writs of error; article 6, section 2, paragraph 5, which defines the jurisdiction of the Supreme Court as to writs of error; article 6, section 4, paragraph 5, which vests in the superior courts power to correct errors in inferior judicatories, by writ of certiorari; article 6, section 4, paragraph 6, which confers on the superior and city courts power to grant new trials; article 6, section 9, paragraph 1. The last-mentioned paragraph is referred to in the body of the act as follows: “Any court so established shall not be subject to the rules of uniformity laid down in paragraph 1 of section 9 of article 6 of the constitution of Georgia,” while no reference either to this paragraph or to its subject-matter is made in the title of the act. In the body of the act provision is made for “new trials and the correction of errors in and by said courts,” and further provision is made “for the correction of errors by the superior court, or the Court of Appeals, or the Supreme Court, as the General Assembly may from time to time in its discretion provide or authorize,” while the title does not expressly refer to new trials, and that part of the title which refers to the correction of errors is in the following words: “the correction of errors in and by said courts, by the superior, or Supreme Court, or Court of Appeals.” Do these words of the title, as to correction of errors, include correction by the courts committing the errors, or do they refer only to correction by the superior court, or the Supreme Court, or the Court of Appeals ? Do the provisions as to correction of errors and other provisions of the act relate to more than one subject-matter? Does the word “ordinance,” as used in article 3, section 7, paragraph 8, of the constitution, supra, refer to any other than an act amending the constitution ?</p> <p>2. Is the said act of 1912 repugnant to the provision of the constitution that “the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made?” Article 3, section 7, paragraph 17.</p> <p>3. The said act of 1912 provides that “All persons voting at said election in favor of adopting the said proposed amendment to the constitution shall have written or printed on their ballots the words, “for ratification of amendment to article 6, section 7, of the constitution, authorizing the establishment of other courts in certain cities in lieu of justice courts.” Have the people voting in this form voted for ratification of all the provisions of the act, or only for ratification of those provisions of the act which authorize the establishment of other courts in certain cities in lieu of justice courts ?</p>

Indictment for murder. Before Judge George. Crisp superior court. June 26, 1914. It was charged in the indictment that on a day stated Dave Bay unlawfully and with malice aforethought killed'Bena Felton by shooting her with a pistol. Upon the trial the defendant was convicted. He made a motion for a new trial, which was overruled, and he excepted.

<p>Complaint for land. Before Judge Jones. Habersham superior court. August 23,1913.</p>

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

<p>Complaint. Before Judge Jones. White superior court. December 13, 1913.</p>

<p>Complaint. Before Judge Bell. Forsyth superior court. September 6, 1913.</p>

<p>Certiorari. Before Judge Patterson. Cobb superior court. September 3, 1913.</p>

<p>Action for damages. Before Judge Patterson. Cobb superior court. September 2, 1913.</p>

<p>Action for damages. Before Judge Patterson. Cherokee superior court. December 6, 1913.</p>

<p>Complaint. Before Judge Patterson. Milton superior court. September 29, 1913.</p>

<p>Appeal from award of assessors. Before Judge James B. Park. Jasper superior court. December 31, 1913.</p>

Complaint. Before Judge James B. Park. Jones superior court. January 19, 1914. This was an action by the National Bank of Tifton against Mrs. Mary E. James Smith and W. E. James, to recover principal, interest, and attorney’s fees, alleged to be due upon a note for $5,000, signed by Mary E. James Smith, payable to the order of the James Manufacturing Company, and indorsed by the James Manufacturing Company and W. E. James.

<p>Forfeiture of recognizance. Before Judge Bawlings. Taylor superior court. August 23, 1913.</p>

<p>Action for damages. Before Judge Gilbert. Muscogee superior court. October 24, 1913.</p>

Action for damages. Before Judge Gilbert. Muscogee superior court. October 3, 1913. J. L. Berry brought suit against the Columbus Railroad Company, and alleged in substance as follows: The defendant injured and damaged him in the sum of $3,000, by reason of the running of its cars. It operates its cars by electric current, and as a part of its system has two lines of track located in Broad street, between 8th and 9th streets.

Action for damages. Before Judge Gilbert. Muscogee superior court. October 24, 1913. John E. Newsome sued the Columbus Eailroad Company, and alleged in substance as follows: The defendant is engaged in the business of operating a system, of street railroads in the city of Columbus, operating its cars thereon by electricity.

<p>Where an electric-light company maintains overhead wires from its plant . to a residence of one of its patrons, for the purpose of supplying light to the house, the company is under duty to employ such approved apparatus in general use as will be reasonably necessary to prevent injury to the house or persons or property therein, arising from electricity whicli may be generated by a thunderstorm and strike the wires and be conducted thereby into the residence. A petition which alleged a negligent failure in respect of such matters, and damage arising therefrom, was not subject to demurrer on the ground that it failed to set out a cause of action. The petition was not subject to any of the grounds set out in the demurrer.</p>

<p>A petition which alleges that the plaintiff purchased a described lot of land from the defendant; that the defendant’s agent in negotiating the sale, with the intent to defraud the plaintiff, and with the knowledge that the lot purchased was of dimension materially less than expressed in the deed (there being a deficiency in the width of the lot of five feet and ten inches, in a total of 73 feet and 10 inches), falsely and fraudulently represented its width, and fraudulently inserted in the deed to the .plaintiff the words “more or less,” assuring the plaintiff that the meaning and purpose of these words was to cover any slight discrepancy in the number of inches; that the plaintiff was without means of ascertaining the correct measurement of the lot without an actual survey; that the defendant and her agent were of such high social standing as to forbid his suspecting that he was being defrauded; and that, relying upon these representations, he consummated the purchase, to his injury, sets forth a cause of action for damages for the discrepancy. It was error to dismiss the petition on demurrer.</p>

Injunction. Before Judge Littlejohn. Sumter superior court. January 10, 1914. About the year 1855 George M. Dudley owned a tract of land in the City of Americus, and in that year he laid out a street through it, known as Hampton street, which he dedicated to the use of the public, and sold off various lots abutting both sides of it, giving the street as a boundary.

<p>Petition for mandamus. Before Judge 'Thomas. Colquitt superior court. February 26, 1914.</p>

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

<p>1. Where suit was brought by a mother for the homicide of her son by a common carrier by railroad, the deceased son haying been an employee of the railroad, and a demurrer was filed to the petition on the ground that the father was not joined with the mother and was a necessary party plaintiff to the action (there being no personal representative of the deceased) since the passage of the railway employers’ liability act of 1909 (Civil Code (1910), § 2782), it was not error to sustain such demurrer.</p> <p>2. Where two sections of the code are in conflict, both being taken from acts of the legislature, the one which is taken from the later act will prevail over the former, as the last expression of the lawmaking power on the subject.</p>

<p>Habeas corpus. Before Judge Hill. Fulton superior court. • February 10, 1914.</p>

<p>Beceiversbip. Before Judge C. S. Beid. Fulton superior court. March 31, 1914.</p>

<p>1. Where a building contract contained a clause providing that if the contractor should at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of proper quality, or fail to prosecute the work with promptness and diligence, upon certificate by the architects that such refusal, neglect, or failure had occurred and was sufficient ground for such action, the owner should be at liberty to terminate the employment of the contractor for the work, to enter upon the premises and take possession, for the purpose of completing the work, of all materials, tools, and appliances thereon, and to have the work completed at the cost of the contractor, this provision was an enforceable term of the contract; and a provision in the contract for liquidated damages for delay by the contractor in completing the work, or the giving of a bond as required by it, for the faithful performance of it, would not destroy the right of the owner to take possession and complete the work upon the contingency provided by this clause.'</p> <p>(a) If the contractor abandoned the work and discharged his employees, except a watchman and superintendent, and if after a proper certificate from the architects and due notice, and an entry and effort to take possession by the owner for the purpose of completing the work, the contractor refused to allow this to be done and used or threatened to use force to drive off an employee of the owner, left upon the premises, this furnished to the owner a right of action under such clause of the contract.</p> <p>2. Where in such a case it was alleged that the contractor had some of the tools and equipment locked up, refused to allow the agents of the owner to have access thereto, and obstructed the completion of the work by the owner in accordance with the terms of the contract, using threats and violence; that the contractor had secretly removed some of the materials, tools, and appliances from the premises; that some of the equipment was being damaged by exposure to the weather; and that'the contractor was insolvent, the petition set out a ground for' equitable relief.</p> <p>(a) Where the contract price for the work was $332,000, of which there had been paid, upon monthly estimates, $71,567.36 prior to the abandonment by the contractor, with a reservation of ten per cent, upon the amount of the estimates by the owner, the fact'that a bond for $100,000 had been given, as provided by another clause of the contract, as a guaranty that the contractor would complete the work within the time required and fulfill each and all of the terms and conditions of the contract and indemnify the owner against all loss, and the further fact that another clause of the contract provided for the payment of $100 per day as liquidated damages for delay after the time provided for the completion of the work, did not show that the owner had such an adequate remedy at law as to render an equitable petition by him demurrable on that ground.</p> <p>3. Under an equitable proceeding filed by the owner of the premises against the contractor, alleging facts as indicated in the preceding headnotes, a prayer that the contractor be enjoined from obstructing, opposing, or interfering with the owner, its agents or employees, in the possession, custody, or control of the building site, and in the construction of the building, and in the possession and use of the tools, materials, machinery, supplies, and structures on the site for the use thereof in the construction of the building, was not such a prayer for a mandatory injunction as to render the petition subject to demurrer.</p>

<p>Rule for contempt. Before Judge Sheppard. McIntosh superior court. June 12, 1914.</p>

<p>Indictment for murder. Before Judge Daniel. Fayette superior court. June 30, 1914.</p>

<p>Mandamus. Before Judge Mathews. Bibb superior court. June 11, 1914.</p>

<p>Indictment for murder. Before Judge Worrill. Early superior court. July 3, 1914.</p>

<p>Injunction. Before Judge Quincey. Clinch superior court. July 22, 1914,</p>

Action for damages. Before Judge Patterson. Cobb superior court. September 3, 1913. This action was brought on account of the homicide of the plaintiffs child, Gladys Martin, caused by the falling of a porch connected with the defendant’s millhouse.

<p>1. The petition, after amendment, was not open to- the criticism directed against it by the special demurrers.</p> <p>2. In a suit to recover damages from personal injuries causing physical pain, suffering, and illness, as well as mental pain and suffering, it is inapt to charge the jury: “In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff. In such cases no measure of damages can be prescribed, except the enlightened consciences of impartial jurors.”</p> <p>3. A charge in the following language: “It is alleged that the defendant company was negligent in carrying her beyond the point of her destination, and in putting her off at an unsuitable place in the woods, or putting her off as set out in the declaration, and as shown by the proof,” is open to the criticism that it contains an expression of opinion by the court upon the controverted issue in the case, and therefore requires the grant of a new trial.</p> <p>4. It appearing from the plaintiff’s evidence that upon discovering the failure of the train to stop at her proper destination, to which she was entitled to be carried, she rang the bell whereby a signal was given for the train to come to a stop, and that she voluntarily and of her own will left the train at the point where it actually stopped, it was error for the court to charge the jury as to damages which might accrue from her being “ejected” from the train at that point. There is no evidence in the record that the plaintiff was ejected from the train, and the charge based upon that theory was error.</p>

Injunction. Before Judge Patterson. Cobb superior court. May 9, 1914. Mrs. S. J. Lowe, as executrix of the estate of T. J. Lowe, deceased, and as legatee under his will, brought her petition praying for injunction against the Town of Mableton, H. A. doer, mayor of the town, and certain named parties as councilmen.

<p>Complaint for land. Before Judge Fite. Dade superior court. September 16, 1913.</p>

Equitable petition. Before Judge James B. Park. Greene superior court. January 27, 1914. Held: and be required to exhaust all valid collaterals before asserting any claim against plaintiff; (5) that such bank and its attorneys above mentioned be enjoined from prosecuting the suit in the city court; (c) that plaintiff’s note be decreed to be void, etc. The defendants made a motion to dismiss the petition, on the grounds that it…

<p>1. The grantee in a deed to a lot in a public cemetery, for the purpose of sepulture, acquires only an easement in the soil for the purpose of the grant. A municipality acquiring the fee to the cemetery, subject to the easement of the lot-owner, may make reasonable rules for the care and management of lots in_ the cemetery, agreeably with the grant of the easement. A rule requiring the written authority of the commission charged by law with the superintendence of the cemetery, before any professional gardener or other person for hire can be employed to care for a lot, is unreasonably enforced by the arbitrary refusal to grant permission to a lot-owner to employ a suitable person to care for the lot, because, in the opinion of the commission, they can furnish material and perform the work required cheaper than the service may be elsewhere obtained.</p> <p>2. Injunction was the proper remedy in this case.</p>

<p>Injunction. Before Judge Charlton. Chatham superior court. March 26, 1914.</p>

Equitable petition. Before Judge Jones. Hall superior court. August 30, 1913.

Indictment for murder. Before Judge Hill. Fulton superior court. June 6, 1914. Leo M. Frank filed his motion in writing, which was afterwards amended, to set aside the verdict of guilty of murder rendered against him in the superior court of Fulton county. To this motion the State of Georgia interposed its demurrer, both general and special.

<p>Application by insurance commissioner. Before Judge Fite. Floyd superior court. June 30, 1914.</p>

<p>Petition for injunction, etc. Before Judge Wright. Floyd superior court. June 9, 1914.</p>

<p>Injunction and receivership. Before Judge Fite. Floyd superior court. June 30, 1914.</p>

<p>1. There being evidence tending to show that the plaintiff, while driving a horse attached to a buggy, in approaching a public crossing with the intent to cross the same, was injured by the horse becoming frightened on account of the train being run in violation of the crossing law, and its sudden and rapid rush from behind some freight-ears left by the company on a siding near the crossing, which obstructed the view of the track in the direction whence the train was coming, it was not erroneous to charge the principle contained in the Civil Code (1910), § 2780, to the effect that a railroad company shall be liable for any damage done to persons by the running of the locomotives or cars of the company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.</p> <p>2. The charge of the court on the subject of the crossing law, as contained' in the Civil Code (1910), § 2675, was in substantial accord with the provisions of that section.</p> <p>3. Relatively to a traveler on a public road, driving an animal attached to a vehicle, and approaching a railroad crossing over which he is about to pass, the railroad company is under a duty to obey the requirements of the Civil Code (1910), § 2675; and if, by reason of a failure to observe this duty, the locomotive comes within such close proximity to the animal that it takes fright, runs away, and injury results to the person in consequence of being thrown from the vehicle, the company is liable for such injury, although there he no actual contact between the locomotive and the vehicle or its occupant.</p> <p>4. There is no merit in the other assignments of error, and the verdict was authorized by the evidence.</p>

<p>1. The court did not err in overruling the general demurrer to the petition.</p> <p>2. The grounds of special demurrer which were not sustained by the court were either without merit or were sufficiently met by amendments to the petition.</p> <p>3. The court did not err in charging the jury that “There is no law that impeaches a witness because he is an agent or employee of a railroad, or connected with a railroad corporation. It is a question you may consider as regarding his interest, in judging his credibility.”</p> <p>4. The court erred in instructing the jury that “If different witnesses, in testifying about a matter, agree upon the material facts testified to by them, slight discrepancies as to collateral, attendant facts afford no sufficient legal ground to discredit their testimony.” This charge was in violation of the fixed and unvarying rule of law of this State, that the amount of credit to he given witnesses and their testimony, and what will affect their credibility, is exclusively for determination by the jury.</p> <p>5. In a suit to recover damages for personal injuries causing physical pain, suffering, and illness, as well as mental pain and suffering, it is inapt to charge the jury: “In some cases the entire injury is to the peace and happiness of a party. In cases of this kind, the only measure of damages prescribed by law is that to be determined by the enlightened consciences of impartial jurors.”</p> <p>6. Another ground of the motion for a new trial is that the court erred in failing to charge the jury that if the plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant’s negligence she could not recover. Under the evidence in this case the court should have given this principle of law in charge to the jury, and the failure to do so is ground for the grant of a new trial.</p> <p>7. The court’s charge relative to impeachment of witnesses by proof of general bad character was unauthorized by the evidence and should not have been given.</p>

<p>Action for damages. Before Judge Eite. Whitfield superior court. January 9, 1914.</p>

<p>Motion to vacate injunction. Before Judge Wright. Floyd superior court. October 16, 1913.</p>

Equitable petition. Before Judge James B. Park. Baldwin superior court. January 16, 1914. W. A. Gorley and N. L. Gorley Jr. filed their petition against J. Ben Harper, and alleged substantially as follows: Plaintiffs are the sons and only children of Mrs. Epsy Gorley, formerly Epsy Harper, daughter of Robert Harper, lately deceased. In or about the year 1885 Robert Harper died testate, and his will was duly probated.

<p>Equitable petition. Before Judge George. Irwin,superior court. January 17, 1914.</p>

<p>Claim. Before Judge Thomas. Berrien superior court. September 26, November 15, 1913.</p>

Action for damages. Before Judge Graham. Montgomery superior court. November 4, 1913. L. W. Youmans brought a suit against the Georgia and Florida Railway Company, on account of failure to furnish a car for transportation of live stock, and for refusal to receive and properly transport the live stock when'tendered for shipment. The action was for damages, and also for a statutory penalty for failure to adjust .the claim within a reasonable time after demand for settlement.

<p>Complaint. Before Judge Hawkins. Laurens superior court. September 5,1913.</p>

Complaint. Before Judge Pendleton. Pulton superior court. December 16, 1913. George P. Howard brought suit against N. G. Long, T. J. Eady, W. L. Beyer, P. S. Beed, J. C. Arnall, W. D. Powler, B. L. Arnall and others. A demurrer was filed by all of the defendants except the first five just named. The court sustained the demurrer, and dismissed the action as to the demurrants.

<p>Action for damages. Before Judge Pendleton. Pulton superior court. December 11, 1913.</p>

Equitable petition. Before Judge Mathews. Bibb superior court. April 11, 1914. This case is a continuation of the litigation before this court in the case of Bank of Soperton v. Empire Realty Trust Company, ante, 34 (82 S. E. 464), in which the grant of a receiver and an interlocutory injunction at the instance of the petitioners was under review. The facts of the case, showing its status up to the order there reversed, are set forth in the report of that ease.

<p>Indictment for murder. Before Judge Littlejohn. Lee superior court. July 3, 1914.</p>

<p>Indictment for mnrder. Before Judge Hill. Fulton superior court. October 14, 1914.</p>

<p>Petition for injunction. Before Judge Edwards. Haralson superior court. July 15, 1914.</p>

<p>Equitable petition. Before Judge Pite. Catoosa superior court. October 13, 1913.</p>

<p>Action for damages. Before Judge Fite. Gordon superior court. August 9, 1913.</p>

<p>Petition for in junction. Before Judge Wright. Floyd superior court. March 6, 1914.</p>

<p>Action for damages. Before Judge Daniel. Pike superior court. August 12, 1913.</p>

Exceptions to auditor’s report. Before Judge Worrill. Clay superior court. September 16, 1913. J. L. Hurst brought an action against J. B. Simpson.

<p>Complaint. Before Judge Gilbert. Harris superior court. October 12, 1913.</p>

<p>Ejectment. Before Judge George. Wilcox superior court. October 4, 1913.</p> <p>W. C. Black brought an action of ejectment against Mrs. E. M. Webster, tenant in possession, to recover lots of land Nos. 331 and 343 in the 13th district of Wilcox county. The case was submitted to the trial judge, on an approved brief of evidence and an additional agreed statement of facts, to pass on without the intervention of a jury. The court entered judgment in favor of the plaintiff against the defendant for the premises described in the declaration as amended, with cost of suit. The defendant excepted.</p>

<p>Attachment; from Colquitt superior court.</p>

<p>Complaint. Before Judge Frank Park. Calhoun superior court. November 15, 1913.</p>

<p>Complaint for land. Before Judge Parker. Coffee superior court. December 30, 1913.</p>

<p>1. If an owner of corporate stock transferred the certificate thereof to another under an agreement that the latter should negotiate, use, or hypothecate the stock and use the proceeds for the benefit of the transferor in the advancement of an enterprise in which both were interested, and if such stock was levied on under an execution against the transferee and sold at sheriff’s sale to a purchaser bona fide, for value, and without notice of any equity in the transferor, the purchaser obtained a title superior to the claim of the transferor growing out of the agreement as to the application of the proceeds.</p> <p>2. Allegations to the effect that a certificate of stock included twenty-six shares, that the stock was easily worth “intrinsically” from $80 to $90, and possibly $100, per share, that a levy and sale of “some three shares of said stock should have realized the amount of the judgment,” and that the twenty-six shares sold for $21.95, but which did not show that the stock had any market value, or what it was, or that it was not sold one share at a time, as provided by law, were insufficient to show a case of excessive levy, so as to withstand a demurrer.</p>

<p>Indictment for murder. Before Judge James B. Park. Jones superior court. June 27, 1914.</p>

<p>Trover. Before Judge Patterson. Fannin superior court. October 21, 1913.</p>

Complaint. Before Judge Fite. Whitfield superior court. October 24, 1913. J. E. Johnson, receiver of the Pendley Lumber Company, brought suit against L. L. Bishop and J. A. Longley on a promissory note dated February 17, 1909, and due one day after date. Bishop made no defense.

<p>Complaint. Before George A. H. Harris, judge pro hac vice. Chattooga superior court. September 8, 1913.</p>

Complaint. Before Judge Daniel. Butts superior court. October 11, 1913. The Fidelity Trust Company, of Kansas City, Missouri, brought suit against S. H. Mays and others on a joint and several promissory note.

<p>Complaint. Before Judge Daniel. Pike superior court. November 29, 1913.</p>

<p>Equitable petition. Before Judge Littlejohn. Lee superior court. November 4, 1913.</p>

<p>Injunction and receiver. Before Judge Littlejohn. Sumter superior court. February 6, 1914.</p>

<p>Equitable petition. Before Judge Thomas. Colquitt superior court. October 1, 1913.</p>

<p>1. Where a promissory note given for the purchase-price of a horse contained a stipulation that “it is expressly understood that the said [sellers] do not -warrant the health or soundness of said animal,” a plea of failure of consideration filed to an action brought to recover the amount due on the note, on the ground that at the time the purchaser bought the horse and executed the note the sellers expressly stipulated that the horse was sound and that a swelling in the horse’s leg would get well, but that the horse was unsound and the leg did not get well, and that the horse was unfit for the purpose for which it was bought, was properly stricken on motion.</p> <p>2. In an action upon a promissory note which was given for the purchase-price of a certain horse, and which contained a stipulation as set out in .the first headnote above, where the defense was that the note was procured by fraud in that the sellers of the horse made certain representations to the maker of the note with respect to the soundness of the horse and his suitableness as a farm and buggy animal, whereas he was unsound and unsuited to such purposes, but there was no averment that the purchaser was induced to sign the note by any false representations as to the contents of the note, or that he was prevented or under the circumstances was excused from ascertaining the same, it was not error to strike such plea on motion.</p> <p>3. Where to an action on a promissory note, as set out in the preceding notes, the defendant filed an amended answer alleging that subsequently to the signing of the note the sellers agreed with the buyer that the latter was to take the horse home, and if it proved defective or unfit for use, or if the horse’s swollen leg should render it useless or seriously impair its usefulness, the purchaser could return the horse to the sellers and get his note and fifty dollars he had paid on the purchase-p^-ice, and this agreement was assented to by the sellers before the delivery of the horse to the purchaser, and he received the horse on this distinct understanding; and where the allegations of the amendment did not show any consideration for the subsequent agreement, it was not error to strike.the amendment on motion.</p> <p>4. There was no error in directing a verdict for the plaintiffs.</p>

<p>Action for damages. Before Judge Hawkins. Laurens superior court. October 1, 1913.</p>

<p>1. Where the legislature confers upon the Railroad Commission the power to fix maximum rates for service rendered to the public by individuals or corporations engaged in a public service, the maximum rates fixed by the commission are presumptively reasonable, and public-service companies may demand such maximum rates.</p> <p>2. If a patron of a public-service corporation, furnishing electrical power and light, sees fit to make a contract covering a definite period of time, where no rates have been prescribed by the railroad commission, he will be taken to have done so subject to subsequent schedules of rates lawfully prescribed by the commission.</p> <p>(a) Constitutional restraints upon the impairment of the obligation of contracts do not prevent the State from exercising such powers as are necessary in the exercise of its sovereign right to protect the lives, health, morals, comfort, and general welfare of the public, though contracts previously entered into between individuals may thereby be affected.</p> <p>3. The Railroad Commission act of 1907 (Acts 1907, p. 72), giving to the commission jurisdiction over electrical lighting and power companies, and the order of the commission fixing maximum rates in the instant ease, are not void as in opposition to the clauses in the Federal and State constitutions prohibiting the passage of any ex post facto law, or law impairing the obligation of contracts, or the taking of property without due process of law, or for a public use without just compensation.</p> <p>4. Nor do the fifth and sixth sections of the Railroad Commission act of 1907 (Civil Code of 1910, §§ 2662, 2663) violate art. 1, sec. 4, par. 1, of the constitution of Georgia, forbidding special legislation in a case already provided for by an existing general law, and declaring that “no general law affecting private rights shall be varied in any particular case by special legislation, except with the free consent, in writing, of all persons to be affected thereby.”</p>

<p>Petition for injunction. Before Judge Mathews. Bibb superior court. May 26, 1914.</p>

<p>Action for damages. Before Judge Wright. Eloyd superior court. January 13, 1914.</p>

Complaint for land. Before Judge Frank Park. Decatur superior court. July 28, 1913. Frederick M. Stearns brought suit against Jesse P. Williams, of Chatham eountjr, and G. W. Dollar, of Decatur county. While the case was pending in this court, Williams died, and his administrators, E. A. McTyer et al., were made parties in his stead.

<p>1. A caveat to the propounding of a will alleged, that the testatrix made an unfortunate marriage; that her husband deserted her, and she obtained a divorcé from him; that she brooded so much over the unhappy events and outcome of the marriage that her mind became unbalanced and incapable of ratiocination with reference to it and events associated with it or arising from it; that, under an insane delusion with reference to the relationship and the continuation of the affection between herself and her heirs at law, she sought to have her former husband killed or maimed by them, and, because of their refusal to comply with such request, she became imbued with the hallucination that they were not of her blood or family, were not related to her, and were not entitled to her affection and treatment as kinsmen; that she became possessed of an insane delusion that she was disgraced in the eyes of the community by her relatives, because they would not maim or kill her former husband; that she was mistaken as to their condemning her or not sympathizing with her, and in believing that they did not condemn her former husband; that they assured her of that fact, but she was possessed of the insane hallucination that nothing short of the maiming of her former husband would relieve her of the supposed contempt in which she thought she was held because of her unfortunate marital ■ experience and because her heirs at law refused to comply with her request; and that, because her heirs at law refused to violate the law at her demand, under the influence of said insane delusion she conceived and maintained a wholly insane and mistaken idea as to their conduct in the matter and as to their relations and feelings toward her; and that this delusion existed prior to and at the time of the making of the will and caused her to make it, leaving a large part of her property to different charities instead of to her next of kin. Held, that such allegations sufficiently averred monomania to withstand a demurrer.</p> <p>2. Allegations to the effect that the testatrix desired to have her male relatives maim or kill her former husband, and to have her female relatives urge them so to do, that because they refused to do so she believed that she was disgraced in the eyes of the community by them and that they did not sympathize with her but with her former husband, and were prompted thereby in refusing her request, and that this constituted a mistake of fact as to the conduct of the heirs at law, were subject to demurrer. Such allegations amounted only to alleging erroneous inferences or conclusions drawn by the testatrix from their refusal to comply with her illegal request.</p>

<p>Action for damages; from Fulton superior court.</p>

<p>Petition to annul marriage. Before Judge Ellis. Pulton superior court. December 19, 1913.</p>

<p>Equitable petition. Before R. C. Norman, judge pro liac vice. Glascock superior court. October 8, 1913.</p>

<p>1. Where a receiver is appointed in an insolvency action, and the defendant files a cross-action against one of the plaintiffs in that suit and two others, alleging that the defendants in the cross-action have caused a fraudulent sale to he made of certain land of the original defendant, and praying that the receiver appointed in the insolvency action take possession of the land, and that the sale be set aside and the deeds made in pursuance of it -be canceled, and obtains an ex parte order directing that the receiver take possession of the specific land; and where, pending the insolvency proceeding in the State court, the defendant in the original petition (the plaintiff in the cross-action) is adjudicated a bankrupt, and a'receiver is appointed by the court of bankruptcy; and where the receiver of the bankruptcy court, applies to the State court for an order directing the receiver of the State court to deliver to him the possession of the property of the bankrupt, including the land in controversy, which order is granted; and where such order is subsequently reversed by the Supreme Court of the State, the subsequent voluntary dismissal by the bankrupt of his cross-action will not divest the State court of its power to restore the status so far as the possession of the land is concerned.</p> <p>2. Where the receiver of the bankruptcy court makes application to the State court for an order requiring its receiver to deliver possession of land to the bankruptcy court receiver, and obtains such order, and possession by the State court receiver is relinquished to him, upon reversal of the judgment of the State court on writ of error it is not erroneous for the State court to authorize its receiver to apply to the bankruptcy court for a restoration of the possession of the land.</p>