Volume 143 — Georgia Reports

<p>A manufacturing plant where only non-intoxicating malt liquor is made and sold is not a nuisance which may be abated under the “blind tiger” statute (Civil Code of 1910, § 5335), which declares that “any, place commonly known as a blind tiger, where spirituous, malt, or intoxicating liquors are sold in violation of law, shall be deemed a nuisance, and the same may be abated or enjoined as such,” etc.</p>

<p>Complaint for land. Before Judge Edwards. Douglas superior court. September 18, 1913.</p>

<p>Condemnation of land. Before Judge James B. Park. Jasper superior court. September 17, 1913.</p>

<p>Complaint. Before Judge Freeman. Heard superior court. September 26, 1913.</p>

<p>Claim. Before Judge Frank Park. Grady superior court. November 12, 1913.</p> <p>II. J. Peagler recovered a judgment against J. R. Everett on July 22,-1909. Fi. fa. issued thereon and was duly entered on the general execution docket, July 28, 1909. It was afterwards levied upon a certain lot of land in the city of Cairo. Walter Davis, on September 2, 1910, interposed a claim, and the ease was returned to the superior court of Grady county for trial. At the trial the claimant was allowed to file an equitable amendment in aid of bis claim, in which it was alleged: that the defendant in fi. fa., J. JR. Everett, was indebted to the Cairo Banking Company in the principal sum of $1,276, which indebtedness was secured by a certain mortgage upon the property levied upon, dated February 1, 1909, and due October 15, 1909; that on the 28th of July, 1909, Everett represented to the claimant, who was the president and a stockholder in the Cairo Banking Company, that he was unable to pay the mortgage, and requested the claimant to assume the indebtedness to the bank; that the claimant, being desirous that the bank should not be forced to the necessity of foreclosing the mortgage, and being desirous of owning the property, agreed, in consideration of paying to the bank all the indebtedness which Everett owed to the bank, including the amount due on the mortgage and also a debt of $95.25 which Everett owed him, and such other sum as would make the purchase-price amount to $1,400, to buy the property levied upon. It was further agreed between Everett and the claimant that the latter was to be subrogated to the rights of the Cairo Banking Company. In accordance with this agreement the claimant caused Everett to make him a deed of conveyance to the property, and the claimant paid to the Cairo Banking Company the mortgage in full, which, with the indebtedness to him, amounted to the agreed purchase-price. At the time of this transaction the claimant, not knowing of any subsequent lien or incumbrance on the property, requested the Cairo Banking Company to mark its mortgage satisfied, which was done, and the mortgage was delivered to the clerk of the superior court of Grady county and canceled upon the record. The claimant was ignorant that there had been a judgment obtained against Everett. Nor did the claimant know of the lien of the Dyson Manufacturing Company for material furnished to improve the property levied upon, which was an outstanding-lien. At the time of such transaction there was no lien or incumbrance recorded against the property, except the mortgage of the Cairo Banking Company and the lien of the Dyson Manufacturing Company; and claimant did not know that sometime during the day the plaintiff’s execution was recorded on the general execution docket. Claimant had no knowledge of any execution ox lien against' the defendant at the time he requested the Cairo Banking Company to mark the mortgage satisfied. It was further alleged, that the mortgage was a higher and better lien than the judgment of the plaintiff; that the claimant had paid the taxes upon the property since he owned the same, and also paid the lien of the Dyson Manufacturing Company ($20.25); that he was not a mere volunteer, and if he should be subrogated to the rights of the Cairo Banking Company and the Dyson Manufacturing Company the plaintiff in fi. fa. will not be placed in a worse position than he was prior to the payment to the Cairo Banking Company and the lien of the Dyson Manufacturing Company. Wherefore he prayed, that the Cairo Banking Company and the Dyson Manufacturing Company and J. R. Everett be made parties to the action, and that the conveyance by the defendant in fi. fa. have the legal effect of conveying the unincumbered title to the claimant, and, in the event the property should be found subject to the fi. fa., that the claimant be subrogated to the rights of the Cairo Banking Company and to the rights of the Dyson Manufacturing Company, and that the mortgage of the Cairo Banking Company and the lien of the Dyson Manufacturing Company be set up as liens against the property according to their respective dates and rights of priority, and a decree be had adjudging that the claimant have the first and highest lien upon the property, that the mortgage be revived and .foreclosed, and that upon a sale thereof the funds arising therefrom be applied, first, to the payment of the-principal and interest due on the Cairo Banking Company’s mortgage and the lien of the Dj'son Manufacturing Company, and to the payment of such taxes, repairs, and insurance as may have been paid by the claimant, less the rent collected since he has had the property in his possession; and for general relief. The plaintiff in fi. fa. demurred generally and specially to the equitable amendment. The general demurrer was overruled, and certain special demurrers were sustained. The plaintiff filed an answer to the amendment; and the case came on to be tried irpon the issues therein made, and resulted in a verdict for the claimant. A motion for new trial was overruled, and exception is taken to the overruling of the demurrer, as well as to the judgment overruling the motion for new trial.</p>

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

<p>Injunction. Before Judge Conyers. Glynn superior court. February 28, 1914.</p>

<p>Motion for new trial. Before Judge Conyers. Jeff Davis superior court. November 1, 1913.</p>

<p>Complaint for land. Before Judge Pendleton. Fulton superior court. November 24, 1913.</p>

Complaint. Before Judge Patterson. Floyd superior court. January 26, 1914. F. H. Bounsaville brought suit against J. A. Bounsaville, alleging as follows: The defendant “is indebted to him in the sum of $15,000 principal debt, besides interest at seven per cent.” J. W. Bounsaville died testate on October 4, 1910, leaving a wife and five children. The eldest of the children is petitioner, and the other children were of full age at the date of the death of J. W. Bounsaville.

<p>1. Where on the trial of an action brought to cancel a deed as being a forgery it appeared that the deed was signed by mark instead of by the signature of the vendor, and it was shown by evidence that the vendor could write, it was not error, over the particular objections which were urged thereto, to allow the plaintiff to introduce in evidence the original plea, instead of a certified copy thereof, filed in another suit brought against the vendor about the time of the execution of the deed alleged to be forged, with the signature of the vendor affixed to such plea, for the purpose of showing that the vendor could write and that she signed her name in writing and not by mark.</p> <p>2. The other assignments of error are without substantial merit, and the court did not err in denying the motion for a new trial.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. December 12, 1913.</p>

<p>Complaint. Before Judge Hammond. Richmond superior court. November 14, 1913.</p>

<p>Complaint for land. Before Judge Pendleton. Fulton superior court. December 18, 1913.</p>

<p>Action for damages. Before Judge Mathews. Bibb superior court. November SO, 1913.</p>

<p>Equitable petition. Before Judge Parker. Pierce superior court. November 11, 1913.</p> <p>Jesse Wade brought a petition seeking partition of land, cancellation of deeds, judgment for damages, and other relief. He alleged, that A. P. Wade procured a homestead to be set aside in 1875 to himself and family. Among the property included in the homestead was lot of land number 156 in the fifth district of Pierce county. His wife died, and he remarried, pending the minority of the children. He died in 1895, leaving a widow, and children oí both marriages. In 1896 his wife, who had married again, presented her petition to the judge of the superior court of Pierce county, praying an order for the sale of the homestead property for the purpose of reinvestment. An order was granted, allowing a sale of the property at private sale, fixing the minimum price at $4,000, and providing for the reinvestment of the proceeds of the same for the same uses. In pursuance of the order the widow, upon an alleged consideration of $4,000, conveyed the whole of the homestead estate, including lot 156, to Harley Davis Jr. In part payment of the property conveyed to.him, Harley Davis Jr. immediately reconveyed to the widow, Susan L. White, formerly Wade, in her own right and as trustee for her four minor children (one of whom was Jesse Wade), a part of lot 156, reciting a consideration of $2,000. On January 2, 1905, Susan L. White wrongfully and fraudulently and without any order of court, and in her own right and as trustee for the minor children of A. P. Wade deceased, on an alleged consideration of $1,000, conveyed the 165 acres of lot 156 to N. N. Hurst. All of the beneficiaries except two minors, Jesse Wade and his sister Annie, joined in that conveyance. Afterwards Susan L. White, formerly Wade, unlawfully permitted and allowed the A. P. Brantley Company to obtain .a judgment in its favor against her as trustee, and specially against 165 acres of lot number 156. Execution issued upon this judgment and was levied upon the land therein described, namely, the 165 acres of lot 156. The land was sold by J. L. Tuten as sheriff of Pierce county, and purchased by N. N. Hurst for the sum of $195, and the sheriff made to Hurst a deed. On February 15, 1909, N. N. Hurst, for the alleged consideration of $3,700, conveyed certain premises, including 165 acres of lot 156, to Mary P. Hurst, who shortly thereafter reconveyed the same land, on a consideration of one dollar and natural love and affection, to N. N. Hurst. The homestead estate did not terminate until July 16, 1912, when the plaintiff, who was the youngest child of A. P. Wade, became of age. There were born unto A. P. Wade by the first marriage five children, two of whom survive, and the deceased children left surviving children. By the second marriage there were born unto A. P. Wade four children. All of the children by the first marriage of A. P. Wade had received advancements to an amount more than they would be entitled to receive out of bis estate, and the plaintiff and his sister, Annie, were entitled to a partition of the 165 acres with N. N. Iiurst, in the proportion of one part to plaintiff and one part to his sister and three parts to N. N. Hurst. Upon receiving a deed to the land N. N. Hurst entered into possession, committed waste by cutting timber of the value of $500, and ousted the plaintiff, for which he claims as punitive damages the sum of $5,000. The plaintiff’s mother, Mrs. White, his brothers and sisters, and heirs of three deceased sisters, A. P. Brantley Company, M. P. Hurst, N. N. Hurst, and J. L. Tuten, sheriff of Pierce county, were named as defendants. The prayer was, for the reformation of the sheriff’s deed to N. N. Hurst and the deed from N. N. Hurst to Mary P. Hurst, so as to exclude the 165 acres of lot 156; for partition; for damages against N. N. Hurst; and for general relief.</p> <p>By amendment it was alleged, that N. N. Hurst well knew, at the time he accepted the deed of conveyance from Susan L. White, formerly Wade, in her own right and as trustee for the four minor beneficiaries, that the premises had been conveyed to Susan L. White, formerly Wade, in her own right and as trustee, by Harley Davis, in part payment of the homestead estate under order of court for reinvestment, and purchased at the reinvestment sale by Harley Davis, and that the land was homestead property, and that the homestead had not terminated, and that the title he bought was not good as against petitioner as a beneficiary of the homestead; that the fraud on the part of Susan L. White consisted in the fact that she knew the premises had been conveyed to her in her own right and as trustee for the beneficiaries of the homestead, in part payment of the homestead property sold for reinvestment and purchased by Harley Davis at the time she permitted the A. P. Brantley Company to obtain a judgment against herself individually and as trustee for the minor children of A. P. Wade, deceased, against the 165 acres of lot 156, and that the land was homestead property. The court allowed this amendment, but refused to allow an amendment alleging: "The judgment of the A. P. Brantley Company was not obtained for any of the purposes enumerated under the law, or any debts falling under the exceptions.”</p> <p>The petition was dismissed on general demurrer filed by N. N. Iiurst and- Mary P. Hurst. The plaintiff sued out a writ of error, complaining of the two rulings just stated..</p>

<p>Complaint. Before Judge TIammond. Richmond superior court. January 19, 1914. .</p>

Complaint for land. Before Judge Brand. Gwinnett superior court. January 7, 1914:. Mrs. Georgia Byrd brought suit against Mrs. Dora Burtchael, seeking to recover certain land. The defendant denied that the plaintiff had title, alleged that she herself had the title, and pleaded a prescriptive title. The plaintiff and the defendant were sisters. Each claimed under their father, G. W. Ambrose.

<p>1. The court erred in charging the jury as follows: “If you should conclude under the principles of law given you in charge, if any assault and battery was committed upon the plaintiff by the defendant, he is justifiable under some rule of law, the court charges you the plaintiff would not be entitled to recover any damages in the case.” There was no evidence to authorize this charge, the uncontradicted evidence showing an unprovoked assault and battery committed by the defendant upon the plaintiff.</p> <p>2. Nor was there any evidence to authorize the court to submit to the jury the theory that certain injuries alleged in the petition were the result of a mere accident, and a charge upon that subject was error.</p> <p>3. The court charged the' jury: “If the plaintiff is entitled to recover any damages in the case, the court charges you that the damages he would be entitled to recover in the case would be what the law calls direct and general damages.” Considered in connection with the entire charge, this was not error.</p> <p>4. Where in a suit to recover damages for assault and battery the uneontroverted evidence is such as to demand a verdict in favor of the plaintiff for a substantial amount, the jury are not authorized to return a verdict in favor of the plaintiff for nominal damages merely.</p>

Equitable petition. Before Judge Bell. Pulton superior court. O'ctober 23, 1913. The New Hope Benevolent Society Number One, hereinafter referred to as the Society, a corporation organized and incorporated under the laws of the State of Georgia, brought its equitable petition seeking an injunction, and other equitable relief against Glenn Howell.

<p>Action of libel. Before Judge Bell. Fulton superior court. October 28, 1913.</p>

<p>1. A petition alleged, in substance, that three named corporations, which were made defendants thereto, on behalf of a voluntary, unincorporated association of which they and a number of others were members, contracted with,the plaintiff as an attorney for certain professional services, which were rendered; that the defendants who were sued were all of the members of the association known to the plaintiff, and that he did not know and had no means of ascertaining the names of the other members of such association. Held, that the petition was not demurrable on the ground of nonjoinder of parties because the plaintiff failed to make defendants of all the members of the association other than those sued.</p> <p>2. None of the rulings on other grounds of the demurrer, overruling some of them and sustaining some of them, furnished any cause for reversal either upon the main bill of exceptions or the cross-bill.</p>

<p>Action for breach of contract. Before Judge Ellis. Eulton superior court. January 7, 1914.</p>

<p>Action for damages. Before Judge Rawlings. Emanuel superior court. September 6, 1913.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. December 2, 1913.</p>

<p>Complaint. Before Judge Walker. Wilkes superior court. December 22, 1913.</p>

<p>Complaint. Before Judge Beid. Newton superior court. November 12, 1913.</p>

<p>Complaint. Before Judge Beid. Newton superior court.. November 12, 1913.</p>

<p>Complaint. Before Judge Park. Gwinnett superior court. December 18, 1913.</p>

<p>Interpleader. Before Judge Wright. Floyd superior court. November 21, 1913.</p>

<p>1. Where one by a voluntary deed conveyed to another a life-estate In land, with remainder to the children of the first taker, and subsequently the tenant for life executed a warranty deed conveying in fee simple the same land to another, and the grantor first referred to executed also to the purchaser from the life-tenant an instrument reciting the execution of the voluntary conveyance first referred to, relinquishing “all right and titles to said claim whatever to [the purchaser], his heirs and assigns, forever in fee simple,” the purchaser relying upon the instrument Just recited as the deed from the life-tenant, as constituting his muniment of title, did not obtain a title which would prevail in his favor, or that of his successors in title, over the rights .of the remaindermen asserted upon the death of the life-tenant. The deed executed by the life-tenant could not convey in any event more than a life-estate, and the written instrument which the purchaser referred to took from the first grantor charged the purchaser with notice of the existence of the former voluntary conveyance.</p> <p>2. The defendant, being a successor in title, through intermediate conveyances, to the purchaser referred to in the preceding headnote, did not show paper title as against the remaindermen, the plaintiffs in this action, who upon the death of the life-tenant asserted in themselves title to the land conveyed in the deed first referred to above.</p> <p>3. The evidence was not of such a character as authorized the court to direct a verdict upon the theory that the defendant had a prescriptive title to the land.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. October 16, 1913.</p> <p>Mrs. F. M. Berry brought suit against George B. Powell, to recover damages for the homicide of her son, upon whom, it is alleged, she was dependent and who contributed to her support. She further alleged, that on the day of the fatal occurrence her son entered the defendant’s automobile as his guest and sat on the back seat; that he had no control or direction of the defendant’s actions; that the defendant drove the car at a rapid and reckless rate of speed around the curve of a road, and the car, after running first on one side of the road and then the other, ran off the road upon an embankment, and, suddenly stopping, threw the decedent out, the car turning on top of him, resulting in the infliction of'injuries from the effects of which he died four days later. The defendant filed a general demurrer to the petition, and to the order of the court overruling the demurrer he excepted.</p>

<p>Equitable petition. Before Judge Eeid. DeKalb superior court. December 11, 1913.</p>

<p>1. As a general rule, there can be no administration unless there is an estate left by a decedent to be administered.</p> <p>(а) But although there is no tangible property to administer, yet if there is somethixxg for an administrator to do which may create an estate, such as suixxg for the death of a decedent, and the like, an administrator should be appointed.</p> <p>(б) Where one applied for letters of administration upon an estate, alleging that the applicant was a creditor of the decedent and that the latter died leaving a lai'ge estate, and oxxe of the next of kin of the decedent filed a caveat to the application, alleging that the decedent died without leaving an estate and that there was xxoxxe at the date of filing the caveat, it was error to strike the caveat and direct a verdict on ex parte testimony offered by the applicant.</p>

<p>1. It is not essential in this State, in order to convey title to land to secure a debt as between the maker and the grantee, that the deed should be recorded. As between the maker of the security deed and the grantee, the latter would get a good title.</p> <p>2. Where the owner of real estate executes a deed to the land, and the grantee fails to record the deed, and subsequently the maker executes two other deeds to secure debts to two other persons to the same land, which are duly recorded, and the grantee in the unrecorded deed has the land sold at sheriff’s sale under a judgment declaring a special lien thereon, and after reconveyance for the purpose of levy and sale, and the grantee in one of the recorded deeds is the purchaser at the sale and enters into possession of the land, and subsequently sells it to one who contracts to sell it to a third person, who declines to pay the agreed purchase-price on the ground that the vendor has not the legal title, and the vendor brings an equitable petition against the purchaser in order to compel specific performance of the. contract, and on the trial shows that one of the two deeds which was recorded was paid off by the plaintiff and duly canceled and that the other is held by the purchaser at the sheriff’s sale, who conveyed to the plaintiff, it is not error for the trial judge, to whom the case is submitted on an agreed statement of facts, to find for the plaintiff and to enter a decree compelling specific performance Of the contract.</p>

<p>Buie for contempt. Before Judge Charlton. Chatham superior court. January 10, 1914.</p>

<p>Eviction. Before Judge Brand. Banks superior court. September 18, 1913. -</p>

<p>Indictment for murder. Before. Judge Reid. Troup superior court. November 7, 1914.</p>

<p>Complaint. Before Judge Daniel. Butts superior court. October 4, 1913.</p>

<p>'Action for damages. Before Judge George. Crisp superior court. August 23, 1913.</p>

<p>Processioning. Before Judge Parker. Pierce superior court. November 3, 1913.</p>

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

Complaint. Before Judge Pendleton. Fulton superior court. January 27, 1914. J. L. Riley instituted an action against Robert E. Riley and Royal Arcanum, in the superior court of Fulton county, to recover one half of the proceeds of an alleged insurance policy issued by Royal Arcanum, whereby that institution contracted, upon the death of E. S. Riley, to pay to the beneficiaries therein nahied, J. L. Riley and Robert E. Riley, three thousand dollars.

<p>Equitable petition. Before Judge Bell. Eulton superior court. November 6, 1913.</p>

Equitable petition. Before Judge Pendleton. Pulton superior court. December 8, 1913. J. G. Jaekson and others brought their equitable petition against the Georgia Portland Cement and Slate Company, and W. W. Wadsworth, H. H. Cabaniss, and W. W. Jones, and alleged substantially as follows: The corporation was chartered in the year 1908, on the petition of W. W. Wadsworth, H. H. Cabaniss, W. W. Jones, and W. P. Davis, and their associates.

<p>Action for damages. Before Judge Ellis. Fulton superior court. December 13, 1913.</p>

<p>Action for damages. Before Judge Ellis. Fulton superior court. Januaiy 17, 1914.</p>

<p>Probate of will. Before Judge Rawlings. Emanuel superior court. September 4, 1913.</p>

<p>Complaint for. land. Before Judge Roan. Newton superior court. September 6, 1913.</p>

<p>Equitable petition. Before Judge Bawlings. Emanuel superior court. October 13, 1913.</p>

<p>Complaint. Before Judge Park. Toombs superior court. October 17, 1913.</p>

<p>1. The petition set forth a cause of action for the breach of an executory contract to render service. If an agent after entering into the service of his employer is wrongfully discharged, he may bring an action immediately for any special injury which he may have sustained in consequence of the breach of contract by the employer.</p> <p>2. The allegations of the amendment to the defendant’s answer were insufficient to entitle the defendant to have its contract with the plaintiff reformed.</p> <p>(a) Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument.</p> <p>3. The measure of damages for the breach of an executory contract to render service is the actual loss sustained by breach of the contract, and in estimating the amount all the facts down to the time of trial may be considered. The evidence authorized the verdict, and the court did not abuse his discretion in refusing a new trial.</p>

<p>Equitable petition. Before Judge Hammond. McDuffie superior court. September 3, 1913.</p>

<p>Complaint. Before Judge Hammond. Eicbmond superior court. September 30, 1913.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. November 17, 1913.</p>

<p>Action, for damages. Before Judge Walker. Wilkes superior court. January 29, 1914.</p>

<p>Petition for injunction. Before Judge Eite. Murray superior court. October 17, 1914.</p>

<p>Petition for injunction. Before Judge Daniel. Butts superior court. October 31, 1814.</p>

<p>1. The nineteenth section of the act of December 18, 1900 (Acts 1900, p. 219), which sought to create a district lying outside of the actual corporate limits of the City of Blakely, and extending to what was termed the “school limits,” and to prescribe for such territory regulations as to schools and taxation therefor, different from those established by the general school laws, was to that extent unconstitutional as being a special act different from an existing general law on the subject, which is prohibited by the constitution.</p> <p>2. The fact that the petition showed on its face that, under the provisions of the section of the act above mentioned, an election was held in .1907 to determine the question of taxation for school purposes within the “school limits,” and that the mayor and council of Blakely were preparing to levy such a tax for the year 1914, did not suffice to show an estoppel on the plaintiffs, who were citizens and taxpayers, and who filed a petition to enjoin the collection of such taxes from them.</p>

Petition for injunction. Before Judge Littlejohn. Sumter superior court. July 10, 1914. ' Sumter County hied its equitable petition against Hanes, Jones & Cadbury Company, and the deputy sheriff of the county, seeking to enjoin the sale of a mule which had been levied on under an execution in favor of the company named against R. G. Christian, which mule was claimed by the county as its property.

<p>Equitable petition. Before Judge Patterson. Cherokee superior court. August 8, 1913.</p>

<p>Complaint. Before Judge Patterson. Milton superior court. August 19, 1915.</p>

<p>Partition. Before Judge Patterson. -Cherokee superior court. December 6, 1913.</p>

<p>Illegality of execution. Before Judge Fite. Whitfield superior court. April 11, 1913.</p>

<p>Complaint. Before Judge Fite. Catoosa superior court. November 14, 1913.</p>

<p>Action for damages. Before Judge Wright. Walker superior court. November 13, 1913.</p> <p>The plaintiff, a boy of fourteen years, who had been reared on a farm and was without experience as to machinery, was employed at the defendant’s factory. He alleged: that his duties under this employment were to stir hosiery with a stick in dye-kettles, about which employment there was no danger; that he so worked for about four days; that then he was removed by Miller (the defendant’s superintendent and vice-principal, to whose orders he was subject) from the dye-kettles to a machine known as an extractor or a whizzer, operated for drying hosiery in the course of its manufacture, and composed of a metal receptacle upon vertical shafting that caused it to make about 300 revolutions per minute; that he was entirely unfamiliar with the machine and its operation and dangers, and Miller negligently failed to warn him of such danger, and, owing to plaintiff’s youth, inexperience, and lack of knowledge, he did not know and had hot equal means of knowing of the danger incident to such operation, and did not know how properly to load the receptacle (this requiring some degree of knowledge and skill, in that the hosiery should be packed therein carefully and evenly, distributing the weight thereof around the sides of the receptacle in order that it may not be so" jostled as to cause the ends thereof to fly out); that the defendant knew, or by the exercise of ordinary care should have known, of the danger, and failed to warn the plaintiff thereof and to instruct him as to the loading and operation of the machine-; that he filled the receptacle with wet hosiery, as he understood was proper from having casually seen the machine in operation when passing it during the four days preceding, and then started it to revolving; and that after it had gained a high velocity the end of one of the stockings he had placed in it flew out (the other end remaining fastened therein), caught and wrapped his hand or wrist, and pulled his arm against the shafting, breaking it in two places and lacerating the muscles, etc. He described the extent of his injuries, and laid damages at $3,000. The defendant demurred on the grounds, that no cause of action against it was alleged; that the allegations showed that the plaintiff’s own negligence, and no fault of the defendant, caused the injury; that no fact was alleged as to the construction of the machine that showed danger incidental to its operation, or any defect in it, or that the danger (if any) in its operation was not so fully exposed to the plaintiff’s observation that he did not have equal opportunity with the master of knowing thereof; and that the allegation as to the plaintiff’s observation of the machine for the previous four days, etc., showed that he, with full knowledge of any dangers incident to it, was alone the cause of the accident. The demurrer was sustained, and the plaintiff excepted.</p>

<p>Under the facts of this case, it was error for the court to direct a verdict.</p>

<p>Partition. Before Judge Daniel. Pike superior court. December 18, 1913.</p>

Equitable petition. Before Judge Daniel. Muscogee superior court. October 3, 1913. The Fourth National Bank of Columbus, Georgia, brought an action in the superior court of Muscogee county against H. M. Mooty, a resident of Fulton county, and Leo Loewenherz, a resident of Muscogee county, alleging as follows: Mooty is indebted to the plaintiff on certain promissory notes, copies of which are attached, to the petition.

<p>Where two persons, being neither creditors nor next of kin of a decedent, with intent to benefit themselves by having a sale of the land of the decedent as that of his widow, who .was their sister, and dividing the proceeds among themselves and other heirs of their sister, procured administration on the decedent’s estate, one qualifying as administrator and the other being surety on his bond; and where afterwards they obtained an order to sell the land, not for the purpose of paying the debts of the decedent or making distribution among his heirs, but for the purpose of depriving the heir of the decedent of his rights in his father’s estate, they were guilty of actionable fraud, and liable to the defrauded heir for all damages sustained by their fraudulent interference with his father’s estate.</p> <p>(a) The excerpts from the charge are not subject to the criticism made of them. The verdict is authorized by the evidence, and the court did not abuse his discretion in refusing a new trial.</p>

<p>1. The law does not countenance the employment of criminal process for the collection of debts. Where a criminal warrant is issued, and its principal object is to enforce the collection of a debt due to a corporation of which the magistrate issuing the warrant is the president, and the defendant is imprisoned under such warrant, a conveyance of property to the prosecuting creditor, obtained by means of such imprisonment, in order to secure his release, is void.</p> <p>2. Where the fears or affections of a wife are worked upon through criminal proceedings instituted against her husband, and she is induced thereby against her will to convey her property, through the medium of her husband, to her husband’s creditor to pay her husband’s debt and obtain his release from imprisonment, there is duress as to her; and a purchaser from the husband’s creditor, with notice of the wife’s equity, can not prevail in an action to recover the land from her.</p> <p>3. The court’s instruction is not open to the criticism made of it.</p>

<p>Complaint. Before Judge Pendleton. Eulton superior court. September 9, 1913.</p>

<p>Motion for new trial. Before Judge Bell. Fulton superior court. September 23, 1913.</p>

Action for damages. Before Judge Pendleton. Fulton superior court. December 4, 1913. O. C. Aaron, as next friend of Lucile Aaron, a minor, brought suit against the Coca Cola Bottling Company and M. J. Merlin, to recover damages for personal injuries sustained -by Lucile Aaron in Consequence of her having stepped upon certain sharp fragments of broken glass bottles, whereby her feet were cut.

<p>Action for damages. Before. Judge Pendleton. Fulton superior court. December 2, 1913.</p>

<p>Mortgage foreclosure. Before Judge Eawlings. Toombs superior court. August 20, 1913.</p>

<p>Trover. Before Judge Sheppard. McIntosh superior court. September 27, 1913.</p>

<p>Complaint for land. Before Judge Sheppard. Liberty superior court. December 16, 1913.</p> <p>S. K. Ward, as administrator, brought suit against W. C. Prieo &nd E. C. Miller as administrator upon the estate of E. P. Miller, and alleged: The defendants were in possession of a certain tract of land containing 484 acres in Liberty county, and refused to yield possession. The plaintiff, as administrator of the estate of Charles Tutty, claims title to the land, being seized thereof in fee. In the years 1906 and 1907, W. C. Price and E. P. Miller cut cross-ties and pine wood from and upon the land, the cross-ties being of the value of $300, and the pine wood of the value of $100, and have converted the same to their'use without the consent of the plaintiff. An abstract of title to the land was attached as an exhibit. A judgment was prayed against Price, and Miller as administrator, for possession of the premises, and for the sum of $400 as the value of the cross-ties and pine wood. Price filed an answer to the petition, admitting that he was in possession of the land, but averring that for lack of information he was unable either to admit or deny that the property was conveyed by William Tutty to Charles Tutty on Sept. 9, 1891. He denied that the plaintiff had any right or title to the land and was seized thereof in fee. He admitted that he had never surrendered possession of the land to the administrator, but denied any demand on him to do so, and denied that plaintiff has any right to make such demand. Miller, as administrator, denied generally all the material allegations of the petition.</p> <p>During the trial the plaintiff offered the following amendments to his petition: (1) “That said defendants are claiming title to said premises under and by virtue of a sheriff’s deed, dated January 3, 1905, made by A. B. Brewer, sheriff of Liberty county, Ga., to W. C. Price and E. P. Miller, covering the premises described in the petition, which deed is based upon and made under and by virtue of the execution therein referred to in favor of C. J. McDonald vs. Charles Tutty for $132.35 principal, and interest $17.50, and interest on said principal sum from May 17, 1900, and costs, issuing out of superior court Liberty county, Georgia, said execution having been issued on May 20, 1900. Said execution purports to be based upon a judgment in favor of C. J. McDonald against Charles Tutty, rendered for said amounts in Liberty superior court on May 23, 1900, in complaint for land, and no other judgment was rendered at said term in favor of C. J. McDonald vs. Charles Tutty except the one dated May 23, 1900, aforesaid. Plaintiff shows to the court that said sheriff’s deed and the execution upon which it is based are illegal, null and void; for that said execution was issued on May 20, 1900, according to its date, while said judgment upon which it purports to be based is dated and was rendered on May 23, 1900. Said execution was prematurely issued.” (2) "That defendants claim title to said premises under and by virtue of a sheriffs deed dated January 3, 1905, made by A. B. Brewer, sheriff of Liberty county, Georgia, to W. C. Price and E. P. Miller, covering the premises described in the petition, said deed being based upon an execution in favor of C. J. McDonald vs. Charles Tutty, issuing out of Liberty superior court, May term. 1900. That said deed and execution have been introduced in evidence by defendants. Said deed and execution are illegal, null and void, for that, on the date of the rendition of said judgment on May 23, 1900, the defendant in fi. fa., Charles Tutty, who was then defendant in complaint for land suit, which resulted in the rendition of said judgment, was an insane person, and was incapable of making a valid contract, and did not know the consequences of his deeds and acts, owing to his mental derangement, and that said mental condition lasted until the time of'his death on October 30, 1904, and commenced before the May term, 1900, of Liberty superior court, all of which was known to the said W. C. Price at the time he purchased with E. P. Miller the premises involved in this case on January 3, 1905.” These amendments were disallowed by the court, to which rulings the plaintiff excepted pendente lite. The court directed a verdict in favor of the defendants. A motion for a new trial was made by the plaintiff, which was overruled, 'and he excepted.</p>

<p>Attachment. Before Judge Sheppard. Tattnall superior court. January 21, 1914.</p>

<p>Complaint. Before Judge Mathews. Houston superior court. October 28, 1913.</p>

Complaint. Before Judge Matliews. Bibb superior court. November 21, 1913. The Georgia & Florida Railway entered into a contract with the Massee & Felton Lumber Company, wherein the railway company agreed to permit the lumber company to use its main line of railroad between Bannockburn and Ray’s Mill, stations on the railroad, for the purpose of hauling logs oyer this stretch of the track.

<p>Action upon insurance policy. Before Judge Mathews. Bibb superior court. December 6, 1913.</p>

<p>Distraint. Before Judge Walker. Lincoln superior court. October 31, 1913.</p>

<p>Alimony. Before Judge Walker. Wilkes superior court. October 31, 1913.</p>

<p>Complaint. Before Joseph N. ’Worlej’, judge pro liac vice. Franklin superior court. September 29, 1913.</p>

<p>Complaint. Before Judge Brand. Gwinnett superior court. December 23, 1913.</p>

<p>Trover. Before Judge Brand. Banks superior court. January 14, 1914.</p>

<p>Attachment. Before Judge Jones. Habersham superior court. November 10, 1913.</p>

<p>Action for damages. Before Judge Patterson. Fannin superior court. December 5, 1913.</p>

<p>While a threat by a husband to abandon his wife unless she signs a note may in some instances amount to duress which will relieve her of liability-on the note to a. holder with notice, yet where the circumstances show that the wife had no reasonable apprehension of the threat being carried into execution, the bare making of it will not be such duress as to render the note invalid.</p> <p>(a) The court did not err in failing to submit the issue of duress to the jury.</p>

Action for damages. Before Judge Brand. Gwinnett superior court. January 7, 1914. The suit was for an alleged wrongful expulsion of the plaintiff by the defendant’s agent from its cqr which he had entered as a passenger for transportation to a point, on defendant’s line of railway. A general demurrer to the petition was sustained, and the plaintiff excepted.

<p>Petition for injunction. Before Judge Bell. Eulton superior court. March 31, 1914.</p>

<p>Complaint. Before Judge Eite. Murray superior court. August 11, 1913.</p>

<p>Equitable petition. Before Judge Patterson. Cobb superior court. September 3, 1913. (</p>

<p>Action for damages. Before Judge Fite. Bartow superior court. November 27, 1913.</p>

<p>Complaint. Before Judge Daniel. Butts superior court. October 11, 1913.</p>

<p>Petition for injunction. Before Judge Conyers. Wayne superior court. March 28, 1914.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. September 15, 1913.</p>

<p>Action for damages from deceit. Before Judge Ellis. Fulton superior court. October 31, 1913.</p> <p>Mrs. Dumas brought an action of deceit against D. E. Evans and the firm of Ware & Harper, to recover the sum of $500 alleged to have been paid by her to one Braswell, the agent of Ware & Harper, as part payment for a lease on a certain rooming-house in the city of Atlanta. It was alleged, that, prior to the payment of the $500, the plaintiff informed all of the defendants that she was practically a stranger in Atlanta and was not acquainted with the character and reputation of the “Carnegie Hotel,” the premises leased, or the vicinity where it was located, and that she would therefore rely on them as to its character and reputation. Defendants represented that the hotel and vicinity bore a clean moral reputation, and that none but persons of clean moral repute boarded or roomed *in the hotel, and only such persons were catered to and none others tolerated. These representations were false, and were made with a view to induce the plaintiff to act on same. The defendant Evans knew them to be false when made; and Ware & Harper made them either with knowledge of their falsity or in reckless disregard of their truth or falsity, and plaintiff acted and relied on them when she parted with her money. Since so doing she learned of the falsity of the representations and demanded the return of her money, but the defendants refused to return it; and she brings suit to regain the damages caused by the false representations. Ware & Harper defended by denying the material allegations of the petition.</p> <p>The evidence for the plaintiff tended to show that Evans operated the rooming-house, and that he placed the lease he held on it in the hands of Ware & Harper, brokers, for sale. Braswell was a salesman in their office. The plaintiff went to their office in response to an advertisement of the property for lease. She had operated a rooming-house within a block and a half of the “Carnegie Hotel” for a year and a half. She did not see Ware or Harper prior to signing the contract and making the purchase. Certain representations were made to her by Evans as to the good character of the house and vicinity. (Evans is not a party excepting.) Certain representations were made by Braswell, the agent of Ware & Harper, to the effect that he did not know about the hotel himself, but he assured the plaintiff that the community was all right, and that “the reputation of the immediate vicinity was satisfactory, that there was a church there, and that the Carnegie Library was there.” A detective in the police department of the city testified for the plaintiff that the reputation of the hotel and its immediate vicinity, as it existed at and prior to the date the contract was ex-eeutedj was bad. At the conclusion of the plaintiff’s evidence, the court granted a nonsuit, and the plaintiff excepted.</p>

<p>Exceptions to auditor’s report. Before Judge Pendleton. Fulton superior court. November 15, 1913.</p>

<p>Action for breach of contract. Before Judge Bell. Fulton superior court. October 23, 1913.</p> <p>J. N. Wallace instituted an action against The Trust Company of Georgia, a corporation, and Mrs. Bessie Draper Palmer. It was alleged that the defendants had injured and damaged the petitioner in a designated sum, for breach of contract executed between the defendants “as administrators of the estate of James E. McKeldin, deceased,” as follows</p> <p>“ Georgia, Fulton County. Memorandum of Agreement between J. N. Wallace (as purchaser) and Trust Company of Georgia (as vendor), respecting sale of property described below. (This agreement is made subject to right of purchaser to investigate titles to property and to decline to perform if title of the vendor be legally insufficient and-fails to perfect the same within' a reasonable time.) Subject-matter of sale, two houses and lots, being No. 76 and 78 East Linden Street, located on the northeast corner of Linden and Courtland Sts. Lot 116x120. Terms. Purchase-price $15,425. Cash payment of $5,000. Balance to be divided into— installments payable after date fixed for making each payment as follows: 1. $— due ■ — -months after said date. 2. $— due —months after said date, balance in one, two, three, and four years, at 6% interest. (Cash payment to be made when vendor complies with-obligation to make satisfactory showing as to title. Purchase-money notes for deferred payments to be given at the same time, bearing interest from date at the rate of 6 per cent, per annum, falling due as indicated above, payable at or before maturity.)</p> <p>“I assent to the terms of the foregoing agreement, this 7th day of June, 1912. J. N. Wallace, Purchaser.</p> <p>“Trust Company of Georgia, Administrators of the estate of James E. McKeldin, deed., and as agent for Mrs. Bessie Draper Palmer, by E. E. Eawlings, Trust Officer. 1</p> <p>“I agree to pay commission of $425.00 to M. L. Petty and E. L. Harling for making the above sale.</p> <p>“Trust Company of Georgia, Administrator of the estate of James E. McKeldin, deed., and as agent for Mrs. Bessie Draper Palmer, by E. E. Eawlings, Trust Officer.”</p> <p>It was also alleged that plaintiff had offered to comply with his part of the contract, and had tendered the cash payment and offered to deliver the notes as provided therein; but that the defendants, though acknowledging tender, refused to carry out the contract and to deliver the property. Other allegations were that the property was of a stated value, more than the contract price, and the difference was sought to be recovered as damages. An amendment to the petition was filed, in which it was alleged that a described part of the property embraced in the contract was not a part of the estate of James R. McKeldin, deceased, and that the defendants had no authority, “as administrators of the estate of James R. McKeldin, deceased,” to sell or contract to sell such part of the property. The defendants filed a demurrer upon the following grounds: (a) That the petition sets forth no cause of action against the defendants, (b) That it shows on its face that there was no contract between the defendants or either of them and the plaintiff, which could be a basis for any cause of action against the defendants. This. demurrer was overruled, and the defendants excepted.</p>

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

<p>1. Where a petition by a creditor against, his debtor and other defendants is brought in the county of the debtor, a part of the relief sought being to subject the land and for that purpose to obtain a receivership and sale of all the property of the debtor, and an accounting from another resident creditor as to rents and profits arising from certain property of the debtor, which it is alleged the creditor, under a collusive arrangement with the debtor, is operating and misapplying the profits to the payment of claims inferior to a special lien of the plaintiff on the property, another creditor, who is proceeding by mortgage foreclosure to sell a part of the land involved in the relief sought by the plaintiff against the resident defendants, may properly be made a party defendant to the petition, although a non-resident of the county in which it is brought.</p> <p>2. In such a ease, an order appointing a receiver for the property and directing its sale by him was inconsistent with an order' granted in the same case, on the same facts, refusing to enjoin the holder of the mortgage fi. fa. from selling a part of the property under judicial process, the court having jurisdiction of all the parties, and no exception being taken to the order first above described.</p>

<p>Complaint for land. Before Judge Sheppard. Tattnall superior court. ■ January 12, 1914.</p>

Complaint. Before Judge Mathews. Bibb superior court. May 5, 1913. Iu 1907, Schofield and other directors of the Exchange Bank of Macon filed in the superior court of Bibb county a suit in which they made the bank and certain stockholders the defendants, and prayed for a receiver to be appointed for the bank, which they as directors found themselves no longer able to operate. R. J. Taylor, B. P. O’Neal, and C. P. King were in due course appointed permanent receivers.

<p>Equitable petition. Before Judge Meadow. Elbert superior court. September 9, 1913.</p>

Equitable petition. Before Judge Meadow. Elbert superior court. November 1, 1913. Cauthen and two McLanahans, for themselves and other creditors who might come in and be made parties, filed their equitable petition against J. G. Peppers, alleging in substance as follows: In November, 1912, Peppers was adjudicated a bankrupt, and a trustee was appointed. The bankrupt applied and had set apart to him out of his estate certain personal and real property as an exemption.

<p>Complaint. Before Judge Pendleton. Fulton superior court. September 23, 24, 1913.</p>

<p>Action for damages. Before Judge Bell, Fulton superior court. October 23, 1913.</p>

<p>The provision of the Civil Code (1910), § 2675, which requires .the engineer of a locomotive to check the speed thereof on approaching a public-road crossing, so as to stop in time should any person or thing be crossing the railroad track on said road, is not unconstitutional as applied to a railway train while engaged in interstate commerce, under the conditions set forth in paragraph 23 of the defendant’s answer, on the ground that, as thus applied, the statute is a regulation of interstate commerce and repugnant to the provision of the constitution of the United States that “the Congress shall have power to'regulate commerce with foreign nations and among the several States.” The statute is an exercise of the police power of the State, though to some extent it may indirectly affect interstate transportation.</p>

<p>. Trover. Before Judge Wright. Walker superior court. November 17, 1913.</p>

<p>Petition for injunction. Before Judge Wright. Floyd superior ' court. March 5, 1914.</p>

<p>Complaint. Before Judge Daniel. Butts superior court. September 10, 1913.</p>

<p>Trover. Before Judge Pendleton. Fulton superior court. October 25, 1913.</p>

<p>Complaint. Before Judge Mathews. Bibb superior court. January 27, 1914.</p>

<p>Motion for new trial. Before Judge Jones. Jackson superior court. November 8, 1913.</p>

<p>1. In' an action for damages by an employee against bis employer, under the general law of master and servant as existing in this State, based upon an injury resulting from a latent defect in machinery with which the plaintiff is employed to work, if the petition fails to allege in express terms that the master knew, or by the exercise of ordinary care could have known, of the defect, and failed to warn the servant thereof, and fails to allege that the servant did not have equal means with the master of knowing of the defect, the petition will not be subject to general demurrer on the ground of the absence of such allegations, if it contains other allegations which in substance import such knowledge upon the part of the master and unequal means on the part of the servant of knowing the defect. Properly construed, the allegations of the petition were such as in effect to import knowledge as just stated; and it was not error at the trial term to overrule the motion to dismiss the petition.</p> <p>2. In an action of the character already mentioned, where it was sought to recover damages for loss of time, for permanent diminution in earning capacity, for expenses of medical treatment, and for pain and suffering resulting from the injury sustained by the employee, it was erroneous to charge broadly: “In some torts the entire injury is to the peace, happiness, and feelings of the plaintiff. In such cases no measure of damages can be prescribed, except the enlightened conscience of. impartial jurors,” without instructing the jury that the charge was applicable only to the element of damage based on pain and suffering. .As the charge given was not so restricted, and as other elements of damages were involved to which the charge was not applicable, the error is sufficient to require the grant of a new trial.</p> <p>3. It is unnecessary to make any decision upon the assignments of error based on the general grounds of the motion for new trial,</p>

<p>Indictment for murder. Before Judge Daniel. Butts superior court. November 14, 1914.</p>

<p>Indictment for rape. Before Judge Brand. Jackson superior court. December 15, 1914.</p>

<p>Indictment for murder. Before Judge Conyers. McDuffie superior court. December 19, 1914.</p>

<p>Indictment for murder. Before Judge Mathews. Bibb superior court. January 16, 1915.</p>

<p>Indictment for murder. Before Judge George. Taylor superior court. January 5, 1915.</p>

<p>1. In a prosecution of a wife for the murder of her husband, testimony that a eodefendant told the witness that the deceased suspected his wife of illicit relations with the codefendant is inadmissible.</p> <p>2. Where two are jointly accused of murder, and the tracks of two persons are shown as leading from a road to the place where the body of the deceased was found, evidence tending to identify the tracks as having been made by both defendants is admissible on the separate trial of one of them.</p> <p>3. Where the evidence fails to show a confession of guilt by the accused, it is error to charge on the law of confessions.</p> <p>4. In so far as the requests to charge were pertinent and legal, they were covered by the general charge.</p>

<p>Temporary alimony. Before Judge Jones. Hall superior court. July 31, 1914.</p>

<p>Intervention; from Fulton. Motion to dismiss.</p>

<p>Petition for injunction. Before Judge Ellis. Fulton superior court. June 30, 1914.</p>

<p>Receivership. Before Judge Pendleton. Fulton superior court. June 16, 1914.</p>

<p>Lien foreclosure; from Jackson. Motion to dismiss.</p>

<p>Indictment for murder. Before Judge Littlejohn. Lee superior court. July 1, 1914.</p>

Petition for injunction. Before Judge Pendleton. Pulton superior court. November 28, 1914.

<p>Application for quo warranto. Before Judge Charlton. Chat-ham superior court. July 8, 1914.</p> <p>John J. McDonough and W. W. Aimar, alleging that they were citizens and taxpayers of Chatham county, presented to the judge of the superior court an application for leave to file a petition in the nature of a writ of quo warranto against Oliver T. Bacon and others, ‘constituting the board of commissioners of Chatham county. The application was accompanied by an information which contained three counts, in each of which it was alleged that the commissioners had forfeited their office, and prayed that they might be removed therefrom. The first count was based upon an alleged violation of § 393 of the Civil Code, which contains, among other things, a prohibition against the making of certain purchases, under circumstances in said section specified, by any county commis7 sioner or board of county commissioners. The second count was based upon an alleged violation of §§ 387-389 of the Civil Code, and charged that the commissioners had themselves executed public works costing more than $300, instead of having the work done by-contract; and this was alleged to constitute malpractice and misconduct in office. The third count charged, that, without contract in writing entered on their minutes, the commissioners had authorized the payment of certain sums of money from the county funds. The judge refused leave to file the application and information,' and declined to issue a rule to show cause why leave should not be given to file such proceedings, holding that quo warranto was not the remedy in regard to the matters complained of in the application. This judgment was excepted to by petitioners.</p>

<p>Temporary alimony. Before Judge Mathews. Bibb superior court. July 27, 1914.</p>

<p>1. The assignments of error based on objections to the solicitor-general of the Middle circuit acting in his official capacity, after the transfer to the Augusta circuit of the county where the trial occurred, are concluded by the rulings in Godbee v. State, 141 Ga. 515 (81 S. E. 876).</p> <p>2. Acts and circumstances forming a part or continuation of the main transaction are admissible as res geste.</p> <p>3. The reading in its entirety of Renal Code § 70, defining justifiable homicide, under the circumstances of the case, will not require a new trial.,</p> <p>4. By way of preface to his instruction on the law of the prisoner’s statement, the court remarked that the defendant had made a statement in “explanation” of the crime alleged against him in the indictment. Such prefatory remark is no sufficient ground for a new trial,</p> <p>5. There was no error in refusing to grant a mistrial because of alleged improper remarks of the solicitor-general.</p> <p>6. Neither the evidence nor the prisoner’s statement authorized a charge on either total or delusional insanity.</p> <p>7. In so far as the requests to charge were legal and pertinent they were covered by the general charge. Assignments of error on the charge are not of a character to require a new trial. The evidence warranted the verdict.</p>

<p>Temporary alimony. Before Judge Walker. Glascock superior court. December 15, 1914.</p>

<p>Indictment for murder. Before Judge Bawlings. Washington superior court. November 12, 1914.</p>

<p>Processioning. Before Judge Daniel. Pike superior court. July-18, 1914.'</p>

<p>1. Where an action for damages was brought for the desecration of a burial ground by certain persons alleging themselves to be the heirs at law and nearest of kin of the original owner, being his grandchildren and great-grandchildren, and owning the lot and easement, there was no error in allowing an amendment adding the names of certain other persons as other grandchildren and great-grandchildren, whose names had been omitted from the original petition by inadvertence and oversight of the plaintiffs’ attorney.</p> <p>2. Nor, in connection with the allegations of the petition, was there error in allowing an amendment which alleged that, by the destruction of the trees and shrubbery upon the burial ground, the defendant not only damaged the lot but also committed an injury to the feelings and peace and happiness of the plaintiffs.</p> <p>3. The evidence authorized the verdict, and none of the other rulings complained of are such as to require a new trial.</p>

<p>Complaint. Before Judge Brand. Jackson superior court. July 6, 1914.</p>

<p>Action for damages. Before Judge Brand. Gwinnett superior court. July 6, 1914.</p>

<p>Injunction. Before Judge Patterson. Fannin superior court. June 23, 1914.</p>

<p>Equitable petition. Before Judge Park. Greene superior court. July 30, 1914.</p>

Complaint. Before Judge Park. Greene superior court. August 31, 1914. The Huson Ice and Coal Company brought suit against T. E. Thornton on a promissory note, payable to the order of the plaintiff, and dated September 28, 1909. The defendant pleaded failure of consideration, and fraud in the procurement of the contract.

<p>Validation of municipal bonds. Before Judge Thomas. Tift superior court. June 20, 1914.</p>

<p>Petition for injunction. Before Judge Cox. Decatur superior court. January 6, 1915.</p>

The Court of Appeals (in Case No. 5662) requested an instruction from the Supreme Court in answer to the following questions: (1) Does the taking or reserving of interest in advance by a bank at the highest legal rate on a short-term loan render the contract usurious within the purview of section 3427 of the Civil Code, so as to make null and void a deed to realty, given to secure the payment of a promissory note representing the amount of such a loan?

<p>The provisions of the Civil Code (1910), § 5642, apply to a plea of non ■est faetum (which section 5650 requires to be accompanied by an affidavit of its truth), so as to permit an attorney at law of a defendant who does not reside in the county in which the suit is pending to make oath to a plea of non est factum to the best of his knowledge and belief.</p>

<p>Complaint. Before Judge Patterson. Milton superior court. April 30, 1914.</p>

<p>Equity will not, at tlie instance of one in possession of land, afford affirm- . ative relief, sueli as the cancellation of deeds as clouds upon title, or the grant of an injunction against interference with his possession, where it appears that he has no title and his only relation to the property is possession acquired under such circumstances as that no prescription could^be based thereon.</p>

<p>Money rule. Before Judge Gilbert. Chattahoochee superior court. February term, 1914.</p>

<p>Action for damages. Before Judge Worrill. Miller superior court. January 10, 1914.</p>

<p>Action for permanent alimony. Before Judge Cox. Worth superior court. May 14, 1914.</p> <p>Mrs. Clara 0. Sikes brought.suit against her husband, B. E. Sikes, for the purpose of obtaining permanent alimony, and pendente lite applied and obtained an order for temporary alimony and aitorney’s fees. On the trial before a jury, at the close of the plaintiff’s evidence the court awarded a nonsuit, and the plaintiff excepted. The other facts will sufficiently appear from the opinion.</p>

<p>Injunction. Before Judge Mathews. Bibb superior court. November 10, 1914.</p>

<p>Temporary alimony. Before Judge Hammond. Jenkins superior court. October 3, 1914.</p>

<p>Indictment for rape. Before Judge Hill. Fulton superior court. January 9, 1915.</p>

<p>Complaint. Before Judge Brand. Jackson superior court. July 6, 1914.</p>

<p>Action for damages. Before Judge Brand. Gwinnett superior court. July 23, 1914.</p>

<p>Complaint. Before Judge Patterson. Milton superior court. April 13, 1914.</p>

<p>Citation — appeal. Before Jnclge Gilbert. Harris superior court. March 14, 1914. «</p> <p>John M. Hudson, as administrator of J. F. Underwood, deceased, hied his petition in the court of ordinary, alleging, that more than a year had expired since the grant of letters of administration to him; that he had sold the property of the estate, paid all of the debts, and had left in his hands ready for distribution to the heirs $1,633.69; that the heirs of the estate were unknown to him, and persons claiming to be heirs of said J. F. Underwood were claiming adversely to each other, and their claims were confusing and conflicting; and that in order to ascertain who were the heirs, and to distribute the estate in accordance with law, he prayed that a settlenient of his accounts as administrator be had, that citation issue, “directed to all the distributees of the estate of J. F. Underwood, late of said county, deceased, requiring them to be then and there j)resent, either in person or by attorney, to show to the court what portion of the funds now in the hands of the said administrator they all and singular claim thej are entitled to receive as an heir and distributee of said estate, to establish their said claim or claims, and to receive payment thereof from the administrator of said estate, so that your petitioner may make a full and complete settlement of the estate of J. F. Underwood in his hands' as administrator, as said court will then and there make an account of the said estate in the hands of petitioner as administrator.” The ordinary ordered that a citation should issue to all of the heirs and distributees of the estate, requiring them to appear at a named term of court to make a full settlement with the administrator, and that the citation should be published in the official organ of the county once a week for four weeks. At the term to which the citation was returnable a judgment was entered, which contained the following: “The above-stated matter coming on regularly to be heard, and the administrator reporting that he had in his hands for distribution to the legal heir or heirs of J. F. Underwood the sum of sixteen hundred and thirty-three and 69/100 dollars, and that same was claimed by Lucien McKibben, as the lawful son of J. F. Underwood, and by William Underwood and others, as brother and nephew and nieces of said J. F. Underwood: After hearing evidence it is considered, ordered, and adjudged that Lucien McKibben is the lawful heir and only heir of J. F. Underwood, and as such is entitled to inherit his entire estate. It is further ordered that J. M. Hudson, administrator of J. F. Underwood, pay to Lucien McKibben the said sum of $1,633.69, less costs that may be a legitimate charge on said fund.” On the same day on whieli this judgment bears date (but whether before 'or after it was rendered does not appear) a written agreement was made which' recited that it was “agreed between counsel for the claimants to the estate of J. F. Underwood, deceased, that the evidence taken by depositions might be read in any appeal as fully as though such depositions were taken after such appeal had been entered.” This agreement was signed by “E. M. Smith and McLaughlin & Shanks, attorneys for McKibben, claimant,” and by “L. L. Stanford and A. L. Hardy, attorneys for administrator and adverse claimants.” It was filed in the office of the ordinary. On the same day on which the judgment was rendered an appeal was entered to the superior court. The caption of the entry of appeal stated the case as follows: “In re John M. Hudson, administrator of estate of J. F. Underwood. Citation before the ordinary to heirs for a settlement. Inicien McKibben, claimant, and William H. Underwood, Marietta Dick, Emma J. Eawls, J. T. Parker, Mrs. Eliza Miller, Mrs. Martha Carney, Mrs. Elizabeth Braddy, claimants adverse to Luden McKibben. In Harris County Court of Ordinary. December Term. Trial and judgment in favor of Luden McKibben.” It was then stated that the parties mentioned in the caption as adverse claimants (restating their names), being dissatisfied with the judgment, entered an appeal and gave a named person as surety. The names of the appellants were signed to the appeal by one of the attorneys who signed the agreement in regard to the use of the depositions on an appeal. This was approved by the ordinary, and the appeal was transmitted to the superior court, where the appeal bond was allowed to be amended.</p> <p>On motion the presiding judge dismissed the appeal, holding that it did not appear in the pleadings, or even in the appeal and bond, that the appellants were heirs or were parties to the issue in the court of- ordinary, or that they had been served by citation, and therefore that the appeal was a mere nullity. The appellants excepted. In this court it appeared that Hudson, the administrator, had died, and that L. L. Stanford had been appointed temporary administrator of the estate, and he was made a party in lieu of the deceased administrator.</p>

<p>Complaint. Before Judge Worrill. Miller superior court. February 28, 1914.</p>

<p>1. The act of Congress of July 24, 1866 (Rev. Stat. § 5263 et seq.), giving telegraph companies the right to construct and operate their lines through, along, and over the public domain, military and post-roads, and navigable waters of the United States, does not withdraw from the States the right to legislate on the subject of the condemnation of railroad rights of way for telegraph companies.</p> <p>2. The measure of damages in the condemnation of a right of way of a railroad company for the construction of a telegraph line is the value of the land taken and the extent to which the use of the right of way by the railroad company is diminished by its use by the telegraph company. Any rent previously paid by a telegraph company for the use of the right of way in conducting a business, entirely disconnected with and not ancillary to the railroad company in the discharge of its corporate functions and duties, is not a proper element to be considered in the estimate of damages.</p> <p>3. The verdict is supported by the evidence, and no error of law is made to appear.</p>

<p>Petition for injunction. Before Judge Rawlings. Emanuel superior court. November 3, 1914.</p>

<p>Certiorari. Before Judge Park. Greene superior court. January 29, 1914.</p>

<p>Action for damages. Before Judge Jones. Habersham superior court. February 12, 1914.</p>

<p>Receivership, etc. Before Judge Park. Greene superior court. October 14, 1914.</p>

<p>1. Where land is owned by four persons in common, and one of them dies, leaving a widow as sole heir at law, the latter can not defeat a partition of the land by merely proving that the other cotenants made a parol sale of the land to her deceased husband and put him in possession, and that he erected valuable improvements on it, where the evidence is without conflict that the purchase-money has never been paid, and there is no plea for equitable relief dependent on the erection of valuable improvements.</p> <p>2. A witness, not a party to the partition proceeding- is not incompetent to testify that he furnished the material which went into the improvements alleged to have been made by the deceased husband of the defendant.</p>

Ejectment. Before Judge Littlejohn. Sumter superior court. July 31, 1914. Rebecca Rhodes and others brought ejectment against Celia A. Smith as tenant in possession, and Mamie Williams as claimant of the title. The latter defended. Both the plaintiffs and the defendant claimed to have derived title under Marshall Swearengen Sr., colored, who died intestate.

<p>Petition for injunction. Before Judge 'Worrill. Early superior court. July 27, 1914.</p>

<p>1. Under the facts of this ease, the petition filed by the administrator for the purpose of marshaling assets, and the order taken thereon, did not operate to prevent a creditor of the decedent, who held a deed to land to secure a debt, upon the subsequent happening of a default, from proceeding to obtain judgment, file a deed, and sell the land as provided bj' the Civil Code (1910), §§ 6037, 6038.</p> <p>(a) .Where, upon the happening of a default, an action was brought by the creditor for the purpose of proceeding to subject the land in the manner pointed out in the statute, a plea called both one in abatement and in bar, setting up the filing of the equitable petition by the administrator and the order taken thereon, was, under the facts, properly stricken on demurrer.</p> <p>2. In such a case, where the note secured by the deed included a provision for the payment of attorney’s fees, the filing of an equitable petition by the administrator to marshal the assets, and the order taken thereon, did not prevent the creditor from serving written "notice on the administrator and including attorney’s fees in his suit, in accordance with the Civil Code (1910), § 4252.</p>

<p>Application for mandamus, etc. Before Judge Thomas. Tift superior court. August 15, 1914.</p>

<p>Illegality of execution. Before Judge Bell. Pulton superior court. February 5, 1914.</p>

Petition for injunction. ¡Before Judge’Reid. Newton superior court. November 26, 1914. The Peoples' Bank of Mansfield brought suit against L. B. Sams on three promissory notes aggregating about $2,800, to the March term, 1914, of Newton superior court, and a summons of garnishment was served on the agent of the Liverpool and London and Globe Insurance Company, whose office was in Walton county, Ga. The insurance company filed an answer denying any indebtedness.

<p>Petition for injunction. Before Judge Hammond. McDuffie superior court. December 4, 1914.</p>

<p>1. The court erred in admitting in evidence the testimony of certain witnesses for the State, to the effect that the foot of the accused fitted certain tracks, the conformability of the defendant’s foot to the tracks being material evidence in the case. The admission of this evidence violated the constitutional guaranty that no person shall be compelled to give testimony tending in any manner to criminate himself, as, under the circumstances, the placing of his foot in the tracks by the defendant was not voluntary; for, though no physical force was used in placing the foot in the track, the defendant at the time was in the custody of the sheriff and handcuffed and surrounded by companions of the sheriff, and the command from the sheriff, directing the prisoner to put his foot in the tracks, was virtual coercion.</p> <p>2. “Whether subsequent confessions, of themselves wholly unexceptionable, were made under previous influences still operating on the mind, is a question not of law for the court but of fact for the jury.”</p> <p>3. There was no merit in the exceptions to the charge.</p> <p>4. The ground of the motion for a new trial complaining of the overruling of the motion for a mistrial, made during the trial and based upon certain alleged misconduct of a spectator present at the trial, which was claimed to be prejudicial to the accused, is not passed upon, as it is not probable that such an incident will happen at the next trial.</p>

<p>Complaint. Before Judge Brand. Banks superior court. January 8, 1914.</p>

<p>Motion to amend verdict. Before' Judge Jones. Habersham superior court. March 11, 1914.</p>

<p>Petition for injunction. Before Judge Patterson. Eannin superior court. September 8, 1914.</p> <p>J. P. Yestel filed an equitable petition against L. G. Edwards and others, as constituting the local board of tax-assessors of Fannin county under the act of the legislature approved August 14, 1913 (Acts 1913, p. 123), and John E. Cook as tax-receiver of the county, alleging as follows: They had assessed certain wild lands in Fannin county, belonging to the petitioner, at a valuation in excess of their value, and in excess of the valuation assessed on like property in other counties of the State. Petitioner made his return in due form to the tax-receiver of the county for the year 1914, within the time allowed by law, at a valuation of $11,746, which was on a basis of equality with other returns of like property in the county of Fannin, as well as similar lands situated in adjoining and other counties in the State containing that class'of lands. On a subsequent date the tax-assessors of the county notified petitioner that they had assessed the lands at $46,984. Being dissatisfied with the assessment and believing it unfair, unreasonable, and unjust, petitioner gave the tax-assessors written notice that he demanded an arbitration as to the value of the lands, and named an arbitrator, a freeholder of the county, who was competent and qualified to act in such capacity and make a just and true return. The tax-assessors selected M. Boss as arbitrator, who is also named as a defendant in this case. Petitioner challenged the eligibility of Boss to act as arbitrator, on the ground that he was a brother to the chairman of the board of tax-assessors, and therefore was disqualified to represent them in arbitrating the matter in controversy. The tax-assessors overruled the objection or protest, and refused to remove the arbitrator appointed by them, or to substitute any freeholder of the county in his stead. It was no part of the purpose or intention of the tax-assessors to give petitioner a fair arbitration upon the value of the lands returned by him for taxation; it was “their purpose at the outset to delay and dilly dally the matter until the time for arbitration would expire by law,” etc. It was part of the purpose of the board of tax-assessors, acting in conjunction and collusion with their arbitrator, Boss, to name two of the arbitrators and thereby make the arbitration sought by the petitioner fruitless in so far as affording him any redress against the unreasonable assessment made upon his property by the tax-assessors. Consequently the arbitrator appointed by the tax-assessors, M. Boss, suggested the names of ten men as arbitrators, all of whom were biased against petitioner, and who had expressed themselves to the effect that the assessment made by the tax-assessors should not be disturbed or changed. M. Boss would suggest nobody, or agree to anything, without first conferring with the tax-assessors and getting their wishes. Boss has declared frequently that there should not be any arbitration on petitioner’s application, unless some arbitrator named by him was agreed upon. Petitioner has sought a fair and just arbitration as contemplated by the act of 1913; and as showing his willingness and desire for such arbitration, his arbitrator, T. A. Terrell, offered and announced his willingness to accept any one of sixty-seven named citizens and freeholders of the county, who are not in any wise related to any of the parties at issue, or otherwise disqualified from acting in the capacity of arbitrator, but M. Ross, declined to accept or consider any one of them. Owing to the dilatory tactics of the tax-assessors and their arbitrator in furtherance of their collusive scheme to defeat petitioner of such arbitration, the time for arbitration under the statute has expired without his being able to get an arbitration on the assessment and valuation made of his property by the tax-assessors, and no arbitration can now be had under the terms of the statute providing for such arbitration, and petitioner is utterly without remedy or right of relief under the statute; “and now that the said arbitrators have succeeded in defeating your petitioner of the right of arbitration, they intend and say that they will have entered on the tax digest of the county said lands returned by petitioner for taxes, at the valuation placed thereon by said tax-assessors, thereby unjustly and wrongfully fixing the value of said properties for taxation at the sum so named by them.” Petitioner’s failure to get an arbitration under the act is chargeable entirely to the action and fault of the tax-assessors and their arbitrator, and petitioner is in no wise at fault or chargeable with the failure to arbitrate, and the action on the part of the tax-assessors and arbitrator deprived petitioner of the legal remedy provided by statute. He prays, that each and all of the defendants be restrained and enjoined from changing or altering the tax return made by him, and from entering any valuation for the properties on the tax digest of the count)', other than that put upon it by petitioner in his sworn return, and that on the hearing of the case an injunction be granted against the defendants and each and all of them, their agents and employees; and for such other and further relief as may be necessary for the full preservation and protection of his legal rights.</p> <p>The defendants filed a general demurrer, and averred, among other things, that the assessment complained of was made on the 5th day of June, 1914, and that the petition for injunction was filed on June 25, 1914, twenty days after the assessment complained of, at which time neither the defendants nor the superior court of the Blue Ridge circuit would have any jurisdiction to reduce the assessment, and • to entertain and exercise jurisdiction would delay the collection of the State’s revenue, and would be in contravention of the statute forbidding judicial interference with the collection of taxes. Upon considering the petition and demurrer, the trial judge denied the injunction, and to this ruling the plaintiff excepted.</p>

<p>Trover. Before Judge Fite. Whitfield superior court. April 9, 1914.</p>

'Ejectment. Before Judge Park. Baldwin superior court. July 14, 1914. E. B. Hines, as administrator of the estate of Milanda Parker, brought ejectment against Goodwin Hitchcock. When the ease was called for trial counsel for both parties consented that the judge presiding should decide the issues involved and render judgment, without the intervention of a jury, on an agreed statement of facts.

<p>Attachment. Before Juclge Park. Baldwin superior court. July 15, 1914.</p>

<p>Motion for new trial; from Early superior court. Motion to dismiss.</p>

<p>Indictment for murder. Before Judge Hill. Fulton superior court. May 23, 1914.</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. November 21, 1914.</p>

<p>Complaint. Before Judge Patterson. Cobb superior court. June 18, 1914.</p>

<p>1. An equitable petition brought by the beneficiary of an alleged homestead, to enjoin one in possession of and claiming the legal title to the land alleged to have been set apart as a homestead from collecting the rents and profits of the land, and to cancel the defendant’s deeds as a cloud upon the title of the head of the family, who applied for and procured the homestead, and to enjoin the defendant from otherwise interfering with the homestead property, was subject to a special demurrer on the ground that the following description of the homestead property ■was too vague and indefinite, to wit: “about seventy-two acres of lot of land No. 220 in the 7th District and 3d Section of Gordon county, duly set apart by the ordinary of said county as á homestead for petitioner and her then minor children.”</p> <p>2. Where an application for homestead was filed on December 18, 1894, and the ordinary, on December 19, 1894, directed the county surveyor to survey and lay off a homestead and make a plat of the land, and the return of the surveyor was made on January 4, 1S95, showing that the survey and plat were made on January 1, 1895, and this was filed and recorded on January 9, 1895, in the office of the clerk of the superior court, but the proceedings do not disclose that the ordinary approved the return of the surveyor by order or otherwise, such proceedings do not constitute the setting apart of a homestead as contemplated by law, and such homestead is void.</p> <p>(а) On the trial of the petition referred to in the first headnote, it was error to admit in evidence the proceedings in. an application for homestead, which on their face showed that the homestead as such was void.</p> <p>(б) The court erred in directing a verdict for the plaintiff.</p> <p>3. The petition was not subject to general demurrer.</p>

<p>Tn response to a rule nisi to show cause against the grant of an interlocutory injunction, the court may consider a demurrer as cause for refusing such injunction. However, the demurrer can not be determined as independently presenting an issue for adjudication on its merits, where the hearing is in vacation and no compliance is had with the Civil Code (1910), §§ 4852, 4853, respecting the hearing in vacation of matters determinable by the judge without reference to a jury, and no order in term has been taken to hear the demurrer in vacation.</p>

<p>Action; from Gwinnett superior court. Motion to dismiss.</p>

<p>Action for damages. Before Judge Patterson. Gilmer superior court. July 6, 1914.</p>

<p>Action for damages. Before Judge Wrigbt. Walker superior court. August 27, 1914.</p>

<p>Lien foreclosure. Before Judge Freeman. Troup superior court. February 6, 1914.</p>

<p>Habeas corpus. Before Judge Edwards. Haralson superior court. November 4, 1914.</p>

<p>The obligation in a note to pay attorney’s fees is enforceable only upon compliance with the statutory requirements, and in a suit on the note judgment can not be entered by the court for such fees. But where judgment is rendered by. the court separately for principal, interest, and attorney’s fees, this court, on exception to the judgment, may require it to be purged of the attorney’s fees.</p>

<p>Money rule; from Berrien superior court. Motion to dismiss.</p>

<p>1. Where the charter of a gas company fixed the amount of its capital stock at $75,000, with a privilege in the board of directors to increase such amount, but with no statement as to the extent to which such increase might be made; and where by an amendment to the charter it was provided that the consent of the holders of two thirds of the common stock outstanding should be required in order to make any increase in such stock; and where, by a second amendment, the extent to which such stock could be increased was fixed at $500,000,, — construing the charter and the two amendments together, the manner of any increase was provided by the charter and the first amendment, and the extent to which it could be made was limited by the second amendment.</p> <p>2. Increasing the amount of the common capital stock in a corporation in excess of the amount authorized by the charter is a vital and fundamental change of the original contract, and requires the unanimous consent of all the stockholders.</p> <p>3. The superior court has jurisdiction to enjoin a corporation from applying for an increase of its common capital stock in excess of the amount authorized by its charter, at the instance of the minority stockholders, in a proper case made.</p> <p>4. Where minority stockholders have purchased stock in a corporation which is seeking to increase its capital stock in excess of the amount authorized by its charter and is illegally pursuing a course in violation of the rights of the minority stockholders, the latter are entitled to equitable relief to enjoin such illegal increase in the capital stock. And this is so regardless of the purpose for which the minority stockholders purchased their stock. The latter can have the stockholders and directors enjoined from exceeding the powers granted them by the charter.</p>

<p>Interpleader, etc. Before Judge Park. Gwinnett superior court. March 21, 1914.</p>

<p>Eviction. Before Judge Wright. Floyd superior court. July 16, 1914.</p>

<p>Injunction. Before Judge Wright. Chattooga superior court. December 29, 1914.</p> <p>E. M. Crawford and Albert Cathey, on November 1, 1913, entered into a written contract, executed in duplicate, containing in substance the following covenants and stipulations: Crawford hereby leases to Cathey for the period of five years, beginning November 1, 1913, and ending November 1, 1918, certain described land in consideration of five annual payments to be made by Cathey to Crawford, as follows: November 1, 1914, $342; November 1, 1915, $326.80; November 1, 1916, $311.60; November 1, 1917, $296.40; November 1, 1918, $281.20. Cathey agrees to accept and hold the premises under the terms of the lease, and covenants to pay all taxes, insurance, assessments, and all other charges of every kind which may arise by operation of law or otherwise against the property, and to make all repairs and improvements thereon at his own expense, and to keep the same in a safe condition and well cultivated, and, in the event of injury to or destruction of any of the buildings on the property, to repair and restore the same at his own expense. Cathey covenants that he shall be charged with the custody, control, and management of the premises, and that Crawford shall in no wise be charged with any duty to him or his tenants or agents, or to the general public, but as to all such persons Cathey shall be solely responsible. Cathey covenants, in the event of default in the payment of any note, to pay interest thereon at the rate of eight per cent., and to pay reasonable attorney’s fees to Crawford in case any action to enforce his rights under the lease should be brought. In the event of default in the payment of taxes or assessments against the property by Cathey, or the filing of any lien against the property, Crawford has the right to take up the same, though he is not bound to do so; and such sum, together with interest thereon at eight per cent, per annum until paid, shall be immediately added to any sums' due or to become due under the contract, and Crawford shall be entitled to recover the same as he would any other sum due under the contract. In the event of default in any of the terms of the lease, either in the payments stipulated or any other obligation thereunder by Cathey, Crawford shall thereupon have and be entitled to exercise all the rights and remedies provided for landlords under the laws of Georgia. On the 1st day of November, 1918, Cathey, his heirs, representatives, or assigns, shall have the right and privilege, in the event that he has fully paid all sums due under the contract of lease and complied fully with all the other stipulations, to pay to Crawford the additional sum of $950, and Crawford binds himself, his heirs and assigns, to execute to Cathey, his heirs and assigns, a full quitclaim deed to the land described in the contract. Cathey paid to Crawford $100, entered into immediate possession of the land, and cultivated it for the year 1914. He failed to pay the note due November 1, 1914, and Crawford sued out a distress warrant to collect the same. Thereupon Cathey filed his petition against Crawford, alleging, that the contract was one of purchase, and that the relation of landlord and tenant did not exist by virtue thereof; that on the faith of his contract he had er'ected valuable improvements to the extent of $100; that he had never attorned to Crawford as landlord, and Crawford had no right, under the contract or otherwise, to sue out a distress warrant; and that the levy of the distress warrant upon.his crop constituted irreparable injury. He prayed for injunction against the further progress' of the distress warrant. Crawford filed an answer, alleging, that Cathey had defaulted in the payment of the rent stipulated in the contract; that as landlord, he had made to Cathey certain advances; that his right to enforce pa}unent of the sums due him as landlord exists, both under the contract and under the law. The court granted an interlocutory injunction against Crawford; and he excepted to this judgment.</p>

Equitable petition. Before Judge George. Irwin superior court. July 7, 1914.

<p>Action for damages. Before Judge Fite. Murray superior court. February 10, 1914.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. July 28, 1914.</p>

<p>Ejectment; from Murray superior court.</p>

<p>Ejectment. Before Judge Park. Baldwin superior court. April 13, 1914. '</p>

<p>1. In a suit for a breach of warranty of title to real estate, a plea which set rip that the plaintiff could, for a small stated amount, have settled a suit brought by third parties against him to recover an undivided one-third interest in the land, and that the warrantor should not be held liable for a sum greater than such amount, was demurrable.</p> <p>2. If title to land was‘warranted in a conveyance thereof, and there was a breach of warranty as to an undivided one-third interest, by reason of a recovery of sucli an interest from the warrantee by third parties, in a suit for the breach it furnished no defense to plead that the defendant was informed that the plaintiff “finally adjusted the matter” by selling the property at an advance of $20,000 over what he had paid for the land, so that he lost nothing. Enhancement in value accrued to the benefit of the vendee, not that of the vendor.</p> <p>3. In a suit for breach of warranty of land, a plea which set up that the plaintiff had settled with the warrantor of the defendant for a stated sum, and that this operated to release the defendant from liability on his warranty, but which did not show for what amount the person settled with would have been liable, or the extent of the injury, if any, done to the defendant by the making of such settlement, was demurrable.</p> <p>4. If a record of a judicial proceeding in a foreign State is certified in accordance with Civil Code (1910) section 5824 (following the provisions of the act of Congress in regard to certifying court records or judicial proceedings from on'e State to another), it is admissible in evidence in this State, although it is not authenticated under the great seal of the other State, under section 5819.</p> <p>5. None of the other grounds of the motion for-a new trial require a reversal, and there was no error in directing a verdict for the plaintiff.</p>

<p>“Where commissioners are appointed by the ordinary to set apart and assign to a widow and her minor children a year’s support, and the commissioners make their return, and no objections are filed thereto,' such return does not become effective as a judgment of the court of ordinary until it is recorded.” And where a party who claims title to the land, derived from the widow to whom the year’s support is set apart, seeks, in defense to a suit by the administrator of the estate from which the lands were carved out when set apart by the appraisers, to show a legal setting apart, it should be done by the record, and it is not sufficient to show an order granted ex parte and not at a term of the ordinary’s court, correcting what is claimed to be an imperfect copy of the return, so as to make it conform to what the party taking the order contends was the actual return.</p> <p>(ft) If the party relying upon the proof of the actual return has such actual return in fact, he should take a nunc pro tunc order at a term of the ordinary’s court, admitting the same to record, and the true return shown by the record would be competent evidence in the case.</p> <p>(6) It was error to admit in evidence what purported to be an order granted by the ordinary “at chambers,” correcting the record of the return of the appraisers. •</p>

<p>Complaint. Before Judge Park. Greene superior court. August 31, 1914.</p>

<p>Petition for injunction. Before Judge Worrill. Early superior court. November 14, 1914.</p>

<p>Action for specific performance. Before Judge Littlejohn. Schley superior court. July 15, 1914.</p>

Action for damages. Before Judge Thomas. Colquitt superior court. February 7, 1914. A litigation was pending between Uretta Roland and G.' W. Roland, wherein the former was seeking to have canceled a deed made by her to the latter. A settlement was agreed upon, covering that case and an alimony suit, and a consent decree was taken.

<p>Action for damages. Before Judge Graham. • Pulaski superior court. February 12, 1914.</p>

<p>Injunction. Before Judge Rawlings. Jefferson superior court. September 18, 1914.</p> <p>A. E. Pennington filed his equitable petition for injunction against the tax-collector and the sheriff of Jefferson county, in which he alleged, that the officials named were proceeding to collect a certain tax fi. fa. levied -upon his property, the fi. fa. having been issued to enforce the payment of taxes on certain personalty of which petitioner was the owner, consisting of a portable sawmill, certain draft animals, and other equipment necessary for the operation of the sawmill; that petitioner ivas a resident of Jefferson county; that he moved the sawmill from place to place when necessary for- the profitable conduct of the business; and that while the sawmill was temporarily, in the year 1913, in Jenkins county, the tax-collector of that county entered the same on the digest for taxation. The plaintiff insisted that the property was not taxable in Jenkins county, and that he had paid the tax leviable upon this property and his other property in Jefferson county, the county of his residence. The tax-collector answered the petition. He neither admitted nor denied the allegations as to the residence of petitioner, or that he owned property only in the county of Jefferson and paid taxes on the same. It was admitted that petitioner did own, among other property, a portable sawmill, together with the necessary equipment, but neither admitted nor denied that in the conduct of the business petitioner moved the sawmill at such times and to such places as might be necessary in the conduct of the business. It was alleged in the answer, that taxable property of the value of $1,850.00, consisting of four mules, 18 oxen, a sawmill and fixtures, carts and wagons, was owned and kept by petitioner in the county of Jenkins on October 16, 1912, and for some time prior thereto; that petitioner continued to keep said property in said county for nearly a year from October 16, 1912, and used it in the operation of a sawmill in said county, and kept said property during said time on land taxable in Jenkins county; that the owner had no other office than that in Jenkins county through which he managed his sawmill business in that county; and that he failed, in the year 1913, to return said property in Jenkins county for taxation, and upon his failure to make such returns the tax-receiver, on June 28, 1913, assessed and returned said property for taxation in Jenkins county, and gave notice to petitioner of the assessment and return. The issuance of the tax fi. fa., and the placing of the same in the hands of the sheriff of Jefferson county for collection, were admitted. Upon the hearing no evidence was submitted, the judge stating that he would treat all the allegations in the answer as true. After consideration, the court granted an interlocutory injunction, restraining the collection of the fi. fa. until the final hearing of the case. To this order the tax-collector excepted.</p>

<p>1. Where in a criminal case an application for a change of venue was made under the act of 1911 (Acts 1911, p. 74), on the ground that there was a probability or danger of violence to the defendant, and a judgment refusing such change was brought to this court and reversed, and the change accordingly granted, the accused could not then withdraw his application, object to being tried in the county to which the change had been made, and demand a trial in the county where the indictment had been found. •</p> <p>(a) Where a person accused of crime applied for a change of venue under the act above mentioned, which was denied, and he excepted and obtained a reversal of the judgment; and where, on the return of the remittitur, the judgment of the Supreme Court was made the judgment of the superior court, and a county was named in the order as the place for the trial, and the clerk of the superior court of the county where the case was then pending was directed, in terms of the statute, to transmit the paper to the county so selected, this was in substance a judgment changing the venue, although it was not expressly so stated.</p> <p>(6) Where in a criminal case a change of venue is granted, a certified copy of the order for that purpose is required to be transmitted to the clerk of the superior court of the county to which the change is made; but the original indictment and other papers in the case are required to be sent to that county.</p> <p>2. Under the Penal Code (1910), § 917, “an arrest may be made for a crime by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant.”</p> <p>(a) Under previous rulings of this court, a police officer of a city, in making an arrest for an offense against the State law, or for a violation of an ordinance of the municipality, falls within the protection of the section of the Penal Code just above cited.</p> <p>3. By the Penal Code (1910), § 921, it is declared that a private person may arrest an offender, if the offense is committed in his presence or within his immediate knowledge; and if the offense is a felony, and the offender is escaping, or attempting to escape, a private person may. arrest him upon reasonable and probable grounds of suspicion.</p> <p>(а) This section was a codification of the pre-existing law. Unless clearly so intended, it will not be construed as working so radical a change in the prior law as to authorize a private person to arrest another for a violation of a municipal ordinance committed in his presence, when the act does not constitute a felony or a misdemeanor.</p> <p>(б) Evidence was introduced to show that the person killed'was a police officer of the City of Broxton, that he was not in uniform but had on a badge, and that he was engaged in arresting the accused when the homicide occurred. It was contended on behalf of the State that the accused was at the time violating an ordinance of the city, and also a penal law of the State; and an ordinance of the city was introduced. The charge of the court did not fully or clearly submit to the jury the issues involved.</p> <p>4. It furnishes no ground for reversal that the court, when charging on the doctrine of reasonable fears, used the expression, “if the facts and circumstances were sufficient to excite in the mind of the person killing, as a reasonably self-possessed and courageous man, the fear that his life was in danger,” instead of employing the statutory expression, “the fears of a reasonable man.”</p>

<p>1. Although the statement of the defendant and the testimony of certain of the witnesses ’made the crime of voluntary manslaughter one of the issues in the case, and while it would have been appropriate for the judge to state to the jury that the accused contended that, if the killing occurred under- circumstances which did not justify the taking of the life of the decedent, the killing was done under such circumstances as would make it voluntary manslaughter, the omission to state this in terms will not work a new trial, where the court did properly charge the jury upon the subject of voluntary manslaughter.</p> <p>2. The evidence presenting two conflicting theories of fact, one based upon circumstances indicating malice and tending to establish the charge of murder, while the evidence for the defendant tended to establish that the killing was justifiable homicide or voluntary manslaughter, the court did not err in instructing the jury, in effect, that if the homicide was established by the evidence as charged, “the law would place the burden upon the defense to show mitigation or justification or excuse; and unless the evidence produced by the State against the defendant show such justification or mitigation or such excuse, if the evidence produced against the defendant shows justification or mitigation or excuse, why then no burden would rest upon the defendant.”</p> <p>3. That the court failed, in instructing the jury as to circumstances which would make the killing justifiable homicide, to define the word “felony,” that term being employed in the course of his instructions, is not cause for a new trial.</p> <p>4. There being no exception to the 'court’s charge upon the subject of voluntary manslaughter, a failure to inform the jury as to the legal penalty for voluntary manslaughter is not ground for a new trial. '</p> <p>5. The evidence authorized the verdict.</p>

<p>Indictment for murder. Before Judge Bawlings. Toombs superior court. November 12, 1914.</p>

<p>1. Where an equitable petition, seeking to obtain an injunction against the collection of a judgment for the purchase-money of land, was filed, and certain persons, who claimed to hold bonds for title under the plaintiff, sought to intervene, but their interventions were stricken, this furnished no ground for exception by the plaintiff in the equitable proceeding.</p> <p>2. There was no error in refusing to grant the interlocutory injunction sought.</p>

<p>Indictment for murder. Before Judge Daniel. Spalding superior court. March 12, 1915.</p>

Injunction. Before Judge Pendleton. Eulton superior court. February 26, 1915. E. T. Luckie and others filed an equitable petition against Jacobs’ Pharmacy Company and others, to enjoin them from trespassing, erecting buildings, digging ditches, or in any other manner exercising any rights whatever upon a strip of land ten feet wide, lying and being at the east side of Roswell road at its intersection with Peachtree road in Fulton county.

<p>Trover. Before Judge Fite. Gordon superior court. August 28, 1914.</p>

<p>The court did not err in sustaining the demurrer to the petition.</p>

<p>Action for damages. Before George A. H. Harris, judge pro hac vice. Floyd superior court. February 18, 1914.</p>

<p>Action for breach of contract. Before Judge Park. Morgan superior court. June 24, 1914.</p>

<p>1. Under the twenty-first and thirtieth sections of the act of 1909 (Acts 1909, pp. 260, 269, 271), creating the city court of Lumpkin, where a suit in that court, based on a promissory note and an open account, was in default, and no jury was demanded as provided by the -act, the judge could render a jrrdgment without a jury.</p> <p>2. This was not in conflict with the section of the constitution which pro- ■ vides that the court may render judgment without a jury in suits on unconditional contracts in writing, where no plea is filed on oath.</p> <p>3. Under tlie facts, there was no error in overruling a motion to vacate the judgment and reinstate the case on the docket for trial.</p>

<p>Injunction. Before Judge Park. Baldwin superior court. August. 21, 1914.</p>

Equitable petition. Before Judge Littlejohn. Sumter superior court. May 28, 1914.

<p>1. A crop produced on any part of the rented land is liable for the whole rent, whether produced by the tenant or his subtenant, unless the landlord assented to or ratified the subletting.</p> <p>2. Where a tenant sublets a part of the land without the landlord’s consent, and also sublets a part of the land to the landlord, and the landlord is seeking, by distress warrant against the original tenant, to collect the rent of the whole premises out of the crop grown by the subtenant, he should account for such an amount as the rental value of the land which he subrented bears to the entire rental value.</p> <p>3. A tenant has no power to consent to any application by the landlord of the subject-matter of the lien for rent, which would leave that lien in force to the prejudice of a subtenant, relatively to the collection of the entire rent from the crop grown by the subtenant. Nor can the landlord apply the proceeds of the tenant’s crop to an independent indebtedness of the tenant, to the injury of the subtenant.</p>

<p>Where an administrator, who had an order authorizing him to farm the land of his intestate, bought mules with funds of the estate and later ' sold them at an administrator’s sale on credit to insolvent purchasers, taking no security except a retention of title to the property, if a loss arose from such failure he was liable therefor.</p> <p>(a) If subsequently the administrator died and an administrator de bonis non was appointed on the estate of his intestate and also an administrator on his estate, and the former took the notes containing a reservation of title, retook possession of the mules without legal proceedings, and resold them at administrator’s sale, at which they brought less than the amount invested in their purchase and the amount which they brought at the first sale, the administrator of the first administrator was liable for the difference, the administrator de bonis non tendering back to him the notes, and nothing appearing to show that the second administrator’s sale was hot fairly conducted, or'that the property did not bring a fair value thereat.</p>

<p>Indictment for murder. Before Judge Graham. Laurens superior court. January 18, 1915.</p>

<p>Where two persons enter into a parol partnership agreement to buy, hold, and sell certain land, and one of the two takes the legal title to the land in himself, both having contributed to the purchase-price and both having entered into possession, the one in whom the legal title is taken will be considered as acting for the firm, and the members will be considered as equitable owners and equitable tenants in common of the land.</p> <p>(а) Where in such a case both members of the firm went into possession of the land in 1883 as joint owners, and so remained until 1899, when one partner died, and the other remained in possession, promising the heirs of the deceased partner, until his death in 1910, that he would settle with them as soon as he could sell the land to advantage, and acknowledged their being entitled to a half interest in the land, a suit brought in 1913 by the administrator of the partner first deceased, against the executor of the surviving partner, to recover a half interest in the land and mesne profits for four years, was not barred.</p> <p>(б) But a cause of action as set out in an equitable petition filed by the administrator of the partner first dying, against the executor of the partner last dying, for an accounting and for a recovery of the value of one half interest in the personal property belonging to the partnership, is barred after the lapse, of nine years from the death of the partner first referred to.</p>

<p>Action for damages. Before Judge Daniel. Fayette superior court. March 18, 1914.</p> <p>Paul McElwaney instituted an action for damages for the tortious killing of a mule, returnable to the September term, 1913, of the superior court of Fayette county. The petition alleged that “the Atlanta, Birmingham and Atlantic Eailway Company, hereinafter called the defendant company, . . is now in the hands of two receivers, to wit, H. M. Atkinson and E. T. Lamb, who are sued.as joint receivers of said line of railwajq and who will hereafter be called the defendants;” and that “said defendants, . . by the operation of their train,” committed the injury under circumstances fully set forth. Process was prayed against “said defendant company, through its said receivers.” The process contained the caption: “Paul McElwaney vs. the A., B. & A. Eailroad Co.,” and required “the defendant, A., B. & A. Eailroad Co., through its said receivers,” to appear at the next term of court, “to answer the plaintiff’s demand in an action of complaint.” The sheriff’s return recited that he had “served the defendant with a true copy of the within writ by handing the same to its agent R. M. Hagler, at Tyrone in said county, in person.” At the appearance term the Atlanta, Birmingham & Atlantic Railroad Company filed a traverse to the sheriff’s return, alleging “that the said R. M. Hagler, named as agent for this defendant, is not now, and was not at the time of the said alleged service, agent for -this defendant. . . This defendant moves that said case be dismissed for want of service.” The railroad company filed an answer subject to its traverse. The receivers did not answer or make any appearance. The case was not marked in default. At the March term, 1914, by consent of counsel, the issues upon the traverse and motion to dismiss were submitted to the court for decision, without the intervention of a jury, upon evidence as follows: “It is agreed that R. M. Hagler, at the time of the bringing of said suit and at the time said suit was served upon him, was the agent of E. T. Lamb, the receiver of the A., B. & A. R. R. Company, and the said R. M. Hagler was not the agent of the A., B. & A. R. R. Company at the time of the filing and bringing of said suit and at the time of the service of said suit, but the said Hagler was only the agent for the receivers of said road and was in charge of the railroad office at Tyrone, Ga.” After the facts were so agreed upon and before the decision of the court upon the traverse of the return of service, the plaintiff tendered an amendment' to the process, which was allowed. The amendment purported to insert the words, “H. M. Atkinson and E. T. Lamb, receivers of,” just after the word “defendant” in the process and before the words, “A., B. & A. R. R. Company.” After the allowance of the amendment, the judge entered a judgment which (omitting the formal parts) contained the following: “It is ordered that the A., B. & A. Railroad Co. has not been served with a copy of the suit and process in the within case, and the traverse is sustained as to that issue. The motion to dismiss the ease is refused.” No evidence was introduced, but, the receivers having failed to answer, the judge directed a verdict “for the plaintiff” for the amount alleged in the petition. The railroad company and the receivers filed separate bills of exceptions.</p>

<p>Equitable petition. Before Judge Gilbert. Chattahoochee superior court. July 17, 1914.</p> <p>The Cusseta Naval Stores Company, a firm, brought an equitable petition against Dillard and others, alleging in substance as follows: On October 21, 1907, Shirling, Nisbit & Cook entered into a contract with one Kissick, by the terms of which they leased and purchased from him all of the growing trees, for turpentine purposes, located upon certain described land, and also rights of ingress and egress, the lease to continue for a. term of ten years. There was also conveyed by the contract all of the pine timber then upon the land which was suitable “for saw and wood purposes.” At the time of the execution of the contract of lease, Kissick was in possession of the land under an agreement of sale and purchase from E. J. Wynn, the owner of the fee-simple title thereto. The lease contract was made by and with the approval and consent of Wynn, who prepared it and received the entire purchase-money paid by the lessees. Tip on the execution of the lease contract, Shirling, Nisbit & Cook, the lessees and purchasers, entered upon the land and commenced to exercise the rights and privileges granted, and such rights and privileges have been continuously exercised by the lessees and their transferees and assigns ever since. “Your petitioners are now the owners of and are entitled to have, hold» and enjoy all the rights, privileges, benefits, claims, and advantages enumerated in and set forth in said lease contract, as the transferees and assignees thereof through successive transfers and assignments in writing of said lease contract, the transfer and assignment of such rights, privileges, and claims being made and executed to your petitioners on the seventh day of February, 1913.” On December 7, 1909, Wynn sold the tract of land to the defendants, and they are now the owners in fee simple, subject, however, to all of the rights, privileges, and claims set forth in the lease contract, “and which is [are] given to petitioners as the transferees and assignees thereof.” At the time of the purchase of the land by the defendants, the lessees in the lease contract were in the actual possession, use, and enjoyment of the rights, privileges, and claims enumerated therein; and defendants had notice of such possession and use, as well as knowledge of said lease contract at the time the purchase was made. “The rights, privileges, and claims which were sold and granted to the lessees and purchasers, their transferees and assignees, by the terms of said lease, have been continuously exercised, carried on, and conducted by such lessees, transferees, and assignees ever since said lease contract was executed.” The timber has been worked for turpentine in the usual manner and with full knowledge of the defendants, and without hindrance, molestation, or interference upon their part, until February of the present year, when the defendants entered upon portions of the land and began cutting and felling the growing timber which had been leased to be worked for turpentine. They have already cleared 25 acres or more, having cut timber of the value of $300. They are threatening to enter upon other portions of the land and to cut growing pine timber therefrom, which has been boxed and is being worked by the plaintiffs for turpentine purposes, “and which belongs to your petitioners by terms of said lease agreement.” The prayers were for a judgment for the damages already accrued, and for an injunction against a continuation of the alleged trespass. By amendment the plaintiffs added the following allegations: “That your petitioners are now, and have been since they purchased the rights, privileges, benefits, claims, and advantages enumerated and set forth in said original lease contract, in the actual possession and enjoyment of the rights, privileges, and benefits therein conferred, and are using and boxing said timber for turpentine purposes by boxing and chipping the growing timber therein, and removing the same therefrom.”</p> <p>The defendants demurred to the petition. The demurrer was overruled, and they excepted.</p>

<p>Action for damages. Before Judge Walker. Wilkes superior court. July 7, 1914.</p>

Action upon bond. Before Judge Worrill. Early superior court, April 8, 1914. - On March 15, 1913, J. M. Harris and others brought suit against L. E. Black, former sheriff of Early county, and the Fidelity and Deposit Company of Maryland, as surety on his official bond. The petition as amended alleged in substance as follows: The plaintiffs are the sole heirs at law of J. M. Harris, deceased.

Affidavit of illegality of execution. Before Judge George. Crisp superior court. March 10, 1914. Held: and the result was duly declared according to the terms of said act, annexing that particular territory to Crisp county. At the time of the filing of the suit and the service of process, jurors from this territory had been rejected in the courts of Worth county, and the coroner of Worth county had refused to hold inquests there.

Complaint. Before Judge Ellis. Fulton superior court. April 10, 1914. Miss Willie A. Morris brought suit against G. R. Moore, a real-estate agent, on an alleged contract by the terms of which he agreed to pay her fifty per cent, of the commission that was paid to him on sale of real estate, where the plaintiff helped in making such sale.

<p>Action for damages. Before Judge Thomas. Lowndes superior court. February 14, 1914.</p>

<p>Affidavit of illegality of execution. Before Judge Beid. Newton superior court. July 29, 19.14.</p>

<p>Comjffaint. Before Judge Pendleton. Fulton superior court. June 12, 1914.</p>

Action for damages. Before Judge Edwards. Polk superior court. March 4, 1914. II. M. Carlton instituted an action agajnst the Seaboard AirLine Bailway, to enjoin the closing of a wagon-road which passed under the defendant’s trestle, and to recover damages. The defendant was engaged in “filling in” the trestle, the work having been commenced shortly before the suit was filed. On an interlocutory hearing the judge refused an ad interim injunction, and the plaintiff excepted.

<p>Attachment. Before Judge Fite. Catoosa superior court. July 28, 1914.</p>

<p>1. A promissory note wliieli purports to be indorsed in stencil by the payee, with the added words “by [a named person] pt.,,” is prima facie admissible in evidence as between the maker and transferee, on the trial of a suit brought by the latter against the former to recover the amount due on the note.</p> <p>‘2. Where in a suit on a promissory note, brought by the transferee against the maker, the defense set up is fraud in its procurement, of which the transferee had notice before purchasing the note, and the evidence is not sufficient to show fraud in the procurement of the note, it is not error to direct a verdict for the plaintiff.</p>

<p>Certiorar-i. Before Judge Daniel. Fayette superior court. January 16, 1914.</p>

<p>Ejectment. Before Judge Conyers. Appling superior court. March 10, 1914.</p>

<p>Complaint. Before Judge George. Dooly superior court. March 28, 1914.</p>

The Court of Appeals certified to this court the following questions (in Cases 5578, 5579): “1.

Equitable petition. Before Judge Fite. Murray superior court. August 27, 1914. - This suit was originally brought to compel specific performance of an alleged parol gift of land from a father to his daughter (the plaintiff in this ease), the daughter having made valuable improvements thereon.

<p>Claim. Before Judge Quincey. Ware superior court. . May 6, . 1914.</p>

<p>A purchaser of land, who is in undisturbed possession under his vendor’s bond to make or cause to be made good and- sufficient title on the payment of the purchase-money, can not recover from the vendor partial payments made on the purchase-price solely on the ground of a defect in the vendor’s title. Such relief is dependent upon the vendee’s equitable right of rescission or cancellation, which does not exist unless he allege that the vendor is insolvent or a non-resident, or some other fact which would make it inequitable for the vendor to hold the purchase-money already paid and to collect the balance. ■ .</p>

<p>Lien foreclosure. Before Judge Pendleton. Fulton superior court. March 5, 1914.</p>

<p>This ease is controlled hy the ruling in the cases of Mallard v. Allred, 106 Ga. 503 (32 S. E. 588), and Henderson v. Fields, ante, 547.</p>

<p>Complaint. Before Judge Thomas. Lowndes superior court. August 31, 1914. -</p>

<p>Complaint. Before Judge Edwards. Polk superior court. August 25, 1914.</p>

Illegality of execution. Before Judge Daniel. Upson superior court. May 5, 1914. Held: for the 15th clay of February, 1913, 50 yards from the lawfully appointed place, in the rear of the Planter’s Bank building, located in the town of Yatosville, Upson county, Georgia, said Planter’s Bank building not being the lawfully appointed place for holding said justice’s court.

<p>Action for damages. Before Judge Fite. Bartow superior court. July 24, 1914.</p>

<p>Complaint for land. Before Judge Mathews. Taylor superior court. January 31, 1914.</p>

<p>Action upon insurance certificate. Before Judge Thomas. Berrien superior court. March 20, 1914. -</p>

Trover. Before Judge Thomas. Echols superior court. July 25, 1914. E. L. Arant brought an action against the Atlantic Coast Line Eailroad Company to recover 476 cypress cross-ties and 237 pine cross-ties, which the plaintiff alleged were his property, and had been wrongfully taken possession of by the defendant and converted to its own use. The value of the property was alleged to be $294.70.

<p>Ejectment. Before Judge Hawkins. Laurens superior court. May 1, 1914.</p>

<p>1. Where a mortgagee foreclosed his security upon certain personal property and the mortgage fi. fa. was levied upon the property described in the mortgage, and where, subsequently to this levy and while the levy was still subsisting, the defendant executed a paper in terms conveying the property to the plaintiff and agreeing to deliver it to the plaintiff upon default in the payment of the debt to secure which this instrument was executed, and expressly stipulated that the levy which had been made should not be dismissed but should continue as a valid subsisting levy, the right to the custody and control of the property was in the officer who had levied the fi. fa., and the plaintiff in .fi. fa. Could not maintain trover against the defendant to recover possession of this property.</p> <p>2. The court properly granted a nonsuit in this case.</p>

<p>Equitable petition. Before Judge Quineey. Clinch superior court. March 27, 1914.</p> <p>S. S. Mobley brought an equitable petition against Gk S. Barter & Company and W. H. Mobley, seeking to enjoin the defendants from cutting, working, or using certain timber. The abstract oE title attached to plaintiff’s petition showed that he claimed under a chain of title beginning with a grant from the State to Thomas Taylor in 1848. The next link in the chain was a deed signed by a number of persons. This deed was dated Januáry 2, 1896. It recited that the persons signing it (except Ebenezer Wakeley and his wife) were the widow and children of. Thomas Taylor, deceased, the husbands and wives of certain heirs at law of his, and the heirs at law of certain other persons named. When the case came on for trial it was dismissed by the plaintiff on October 29, 1912, and was recommenced shortly afterward. When the case thus rebrought came on for trial, the interrogatories of E. Wakeley, which had been taken while the first case was pending, were offered in evidence, lie testified, in substance, that Thomas Taylor died in 1870 or 1871; that his sole surviving heirs on January 2, 1896, when the deed above mentioned was executed, were seven signers of that deed; that there had been ten original heirs, the nearest of kin of the whole blood in the paternal line, but the other three had died in 1875, 1887, and prior to January 2, 1896, respectively; that the last-mentioned decedent left surviving him a wife and five children, one daughter and four sons, being his only heirs at law; that the first of the three deceased heirs died intestate, unmarried, without children or descendants of children, and left as his only heirs at law his nine brothers and sisters, naming them; that the second of the three deceased heirs mentioned died intestate, unmarried, without children or descendants of children, and left as his only heirs at law his eight brothers and sisters, naming them. The witness testified, “that he did not know of the death of Thomas Taylor, who his sole surviving heirs at law were, at the time said ‘big-deed’ was made, from his own personal knowledge, but he did know it from family repute and from various other sources of information, such as a vast amount of correspondence from said Thomas Taylor’s family, and from the court records, and from wills and documents, which made the matter conclusive so far as cquld be ascertained by search.”</p> <p>Objection was made to the evidence of Wakeley, but it was admitted temporarily. "When the plaintiff closed his evidence, a motion was made to exclude the answers of Wakeley to the interrogatories, on the grounds, that the witness testified that he did not know the fact as to the death of Thomas Taylor and the relationship of the patties from his own personal knowledge, but from family repute and other sources of information; that his evidence was purely hearsay, that his answer that he knew it from family repute was a conclusion; that it did not appear that he knew it from general family repute; and that the source of his information on the subject was not disclosed. In connection with the motion to exclude the evidence, counsel for the plaintiff introduced a letter dated at Jacksonville, Florida, January 3, 1913, and signed by Toomer & Reynolds, who were referred to in the bill of exceptions as “defendants’ attorneys.” It contained the following statement: “We will consent, as requested, that you use the evidence of Ebenezer Wakeley, submitted by you on the former trial of substantially the same case at the last term of Clinch court, and that you use it for the purpose of showing that the parties who executed the so-called ‘big deed’ were in fact heirs at law of Thomas Taylor.” The motion to exclude the evidence of Ebenezer Wakeley was sustained; and the plaintiff having rested his case, counsel for the defendants moved for a nonsuit, which was granted, and the plaintiff excepted.</p>

<p>Equitable petition. Before Judge Freeman. Troup superior court. February 9, 1914.</p>

<p>Complaint. Before Judge Daniel. Upson superior court. January 16, 1914.</p> <p>P. G. Daniel brought suit against T. J. Reeves, alleging substantially the following: On June 19, 1909, petitioner and defendant entered into a written contract by the terms of which Beeves agreed to sell and deliver to Daniel 50 bales of lint-cotton in square merchantable bales at Thomaston, Ga., between the 1st and 30th of October. The cotton was to average 500 pounds per bale, and to be of any grade between strict ordinary and fair inclusive. Daniel was to pay 10.27 cents per pound for Inman, Akers & Inman’s 4s, the grade being good middling, American Standard classification, with deductions and additions for other grades according to In-man, Akers & Inman’s differences in effect on the day of delivery. The 50 bales of cotton, averaging 500 pounds per bale, would weigh in the aggregate 25,000 pounds, and at the price agreed on in the contract would amount to $2,567.50. On the 30th day of October, 1909, in the city of Thomaston, Ga., Daniel tendered to Reeves, the defendant, $2,567.50 for the 50 bales of cotton at the contract price, and stood ready to comply with the terms of the contract, and then and there demanded the 50 bales of cotton of the defendant. The • cotton of the classification referred to in the contract was worth and bringing on the market on October 30, 1909, 14-% cents per pound, and the difference between that and the contract price on the 50 bales amounts to $1,088.75. Reeves failed and refused to deliver the cotton as demanded, whereby he breached the contract and became indebted to and has injured petitioner in the sum last stated, with interest at 8 per cent, from October 30, 1909, for which petitioner prays judgment. It was further alleged, that under the contract the defendant sold to the petitioner 50 bales of cotton to be raised by himself on his lands; that the defendant was a farmer and planted and raised cotton, and it was understood at the time of making the contract that the 50 bales of cotton were to be raised on his own lands and were to be delivered, but, in the event the defendant should fail for any cause to deliver the same, he had the right to settle the contract by paying any difference in the value of the cotton when delivered and the price agreed on in money; that such was the understanding at the time, and the contract was made in good faith to secure the delivery of the cotton, and not for speculative or gambling purposes. Plaintiff amended bis petition by alleging, in effect, that it was the intention of the/ parties to the contract that the cotton so agreed to be sold was to be actually delivered by Reeves; that the plaintiff had sold cotton to other parties, including manufacturing companies, to whom it was to be actually delivered for manufacturing purposes, and at the time of making the contract in question the plaintiff was buying this and other cotton to meet his own contracts for the sale of cotton which was'actually to be delivered; and in making contracts for the purchase of cotton, as in the present instance, it was his intention to secure the actual delivery of the cotton, and such was likewise the intention of the defendant; that Reeves represented, and it is a fact, that he was a farmer and raised cotton, and that the 50 bales then agreed to be sold and delivered would be raised on his own farm, and it was the intention of the defendant to deliver cotton actually raised by himself; that it was agreed and understood that if Reeves should fail, for any reason, to actually deliver the cotton as contemplated and intended by the parties at the time it should be delivered, then the parties could settle the difference between them arising from this breach of the contract.</p> <p>The contract was as follows': “June 19, 1909. I hereby agree to sell to P. G. Daniel 50 bales of cotton delivered at Thomaston between the first and 30th days of October next. The delivery to be made at such time, at seller’s option, in lots of not less than fifty bales. Cotton to average 500 pounds per bale. If cotton does not average 500 pounds per bale, I will deliver a sufficient number of bales to bring up the average to 500 pounds per bale. The cotton to be of any grade between strict ordinary and fair, inclusive, at the’price of 10.27/100 cents per pound for Inman, Akers & Inman 4s, said grade being good middling, American Standard classification, with deduction and addition for other grades according to Inman, Akers & Inman’s differences in effect on the day of delivery. It is fully understood and expressly agreed by the parties to this contract that same can be settled by payment of money upon failure to delivery ■ of the actual cotton in square mercantile bales weighing an average of 500 pounds, as aforesaid. [Signed] T. J. Reeves. We accept the above contract, with its conditions and obligations. [Signed] P. G. Daniel.”</p> <p>The defendant denied the material allegations of the petition, and, answering specially, denied making or entering into the alleged contract in manner and form sued on, and averred that he did not authorize any one to do so for him, and has never ratified any such contract. lie says that the terms and agreements of the alleged contract set forth are not full, true, and correct, and are not the agreements of any contract ever made and entered into with the plaintiff. The jury returned a verdict for the plaintiff. A motion for a new trial was overruled, and the defendant excepted.</p>

<p>Money rule. Before Judge Daniel. Pike superior court. May 4, 1314.</p>

<p>Certiorari. Before Judge Daniel. Pike superior court. July 6, 1914.</p>

Complaint. Before Judge Cox. Decatur superior court. May 20, 1914.

<p>Complaint. Before Judge Graham. Pulaski superior court. June 3, 1914.</p>

<p>Action for damages. Before Judge Hawkins. Laurens superior court. January 23, 1914.</p> <p>Ezekiel Caleb brought suit against the Southern Cotton Oil Company, to recover damages for personal injuries, alleging in the petition, that, being an employee of the defendant, he was ordered by its superintendent, who was in charge at the time and who had supervision over petitioner, with the right to order and control his conduct at the company’s mills, to hold in his hand a scantling raised upright, with the end resting against a shafting near the ceiling; that while he was in this position, standing on the floor and holding the scantling as he was ordered to do, and while the superintendent was working at some pulleys or shafting located in the ceiling directly above where petitioner was standing, the superintendent carelessly and negligently let fall a heavy block, which struck petitioner upon the head and thereby inflicted serious injuries upon him; that the superintendent was negligent in ordering petitioner to assume a perilous position; that the block was negligently dropped; that the plaintiff himself was free from negligence; and that his injuries were due entirely to the negligence and carelessness of the superintendent. Upon the trial of the case the jury returned a verdict for the plaintiff. The defendant made a^motion for a new trial, which was overruled, and it excepted.</p>

<p>Complaint. Before Judge Hawkins. Laurens superior court. May 23, 1914.</p>

<p>Exceptions to auditor’s report. Before Judge Hawkins. Laurens superior court. May 23, T914.</p>

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

<p>Equitable petition. Before Judge Hawkins. Laurens superior court. April 27, 1914.</p> <p>On December 22, 1913, Mrs. Mary M. Colley filed her equitable petition against the Calvert Mortgage Company, a non-resident corporation, and the sheriff of the city court of Dublin, Laurens county, alleging substantially as follows: On June 6, 1888, she purchased a described tract of land and went into possession of it, and she has so continuously remained since. About November 16, 1912, her husband died, leaving her without children of her own, and with no one to counsel and advise her, and no one to whom she could look for maintenance and support. Soon after his death, being left with no one to live in the house with her, she requested the son and daughter-in-law of her deceased husband to move their family into the house located upon the property and to occupy it as a home in connection with her, for the purpose of protecting and taking care of her in her old age, “it being the purpose of petitioner, and so understood by said parties, [for them] to live in the said house with petitioner, and not to relinquish her rights 'thereto, or to give the possession thereof, other than temporary, permissive possession for the'purpose aforesaid, and at the pleasure of petitioner.” Under this arrangement the son of the petitioner’s deceased husband' and the wife of such son moved their family into the house on the premises. Soon after this occurred, the son of the plaintiff’s deceased husband fraudulently induced her to make a deed to the premises to the wife of such son, representing that, for the purpose of saving her the trouble and annoyance of looking after business affairs, it would be best for her to execute to him a power of attornejq authorizing him to transact such business for her. Eelying on his representation, she signed a paper which she thought was only a power of attorney, but which she subsequently discovered was a conveyance to the wife of the person committing the fraud. The plaintiff is seventy years old, ignorant and unaccustomed to business affairs, and easily persuaded and imposed upon by any one in whom she has confidence. On account of her age and defective eyesight, she is unable to read or write, and can only sign her name by making a mark. The paper which she signed was not read over to her or explained to her, other than in the statement above mentioned, to the effect that it was a power of attorney. On February 12, 1913, the grantee in this deed ob- • tained from the Calvert Mortgage Company a loan of $1,000 secured by a deed to the property. Of this the plaintiff had no knowledge, and the plaintiff charges that the deed which was procured from her is void on account of fraud, and also for the want of consideration. It recited a consideration of five dollars, and the love and affection which she had for her stepdaughter-in-law. No money was paid to her, and she received nothing as a consideration for the deed. She is now seeking by equitable petition to set aside the conveyance made by her. At the time of the making of the loan by it, the Calvert Mortgage Company knew, or could by reasonable inquiry have known, that the plaintiff was in possession of the premises at the time, and that the possession thereof by the grantee from her, “was only temporary and permissive; and the company knew, or by reasonable inquiry should and could have known, that no consideration whatever was paid to the plaintiff for the deed executed by her, and also that the expressed consideration of $5 was grossly inadequate for the property, which the plaintiff alleges was worth at least $2,000, and was known to the company to be worth that amount. It was also averred that the consideration expressed in the deed, of love and affection for the grantor’s' stepdaughter-in-law, was no sufficient consideration in law, “all of which was sufficient to put said Calvert .Mortgage Company on notice of all of petitioner’s rights in the premises, and which therefore precluded them from being an innocent party in said transaction.” The grantee in the deed from the plaintiff, after obtaining the loan from the mortgage company, failed to pay the monthly installments due upon it, so that, by the terms of the deed given as security for the loan, the entire debt, principal, interest, and attorney’s fees, became due. The plaintiff charges that this default was intentionally made for the purpose of accelerating the maturity of the loan, in order that the debt might be reduced to judgment and the property sold to an innocent purchaser and placed beyond the power of the plaintiff to recover. After the default, the mortgage company brought suit against the debtor and obtained a judgment in the city court of Dublin, which declared a special lien upon the property. An execution was issued, and a levy made. The deed made to the mortgage company is a cloud ' upon the title, and “it was taken by said mortgage company with full knowledge of petitioner’s rights, and is null and void.” The judgment which was rendered in the city court is void, because it was founded on a conditional contract in writing, and no verdict of a jury was taken, but the judgment was rendered by the court. The prayer was for an injunction against the enforcement of the judgment, that it be declared void in so far as it sought to create a lien upon the property, and for other relief and process.</p> <p>The Calvert Mortgage Company demurred to the petition, on the grounds that no cause of action was set out, and that it was not affected by the allegations of fraud. The demurrer was overruled, and it excepted. While the case was pending in this court, the defendant in error having died, her administrator was made a party.</p>

<p>Where a manufacturing corporation employs a watchman, and prescribes, amongst Ms duties, that he shall look after the property of the employer and police the premises and tenant-houses in which the employees live, and keep order on said premises, and arrest persons violating the law or injuring any property of the employer or creating any disorder about the mill, the servant necessarily must be the judge of acts which will amount to acts of disorder; and if the servant, in pursuance of Ms duties as servant, arrests and beats an intoxicated person sitting on the steps of one of the employer’s tenant-houses but not creating a disturbance, the master is liable for the servant’s tort. This is true although the servant may also be a special policeman.</p>

<p>Action for damages. Before Judge Wright. Floyd superior court. February 3, 1914.</p>

<p>Action for damages. Before Judge Wright. Chattooga superior court. March 16, 1914.</p>

<p>Appeal. Before Judge Wright. Walker superior court. June 19, 1914.</p>

<p>Motion for new trial. Before James E. Bosser, judge pro liae vice. Walker superior court. June 26, 1914.</p>

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

<p>An auctioneer may sue and recover his fee for auctioning property, although he may not have paid the occupation tax and registered as provided in the Civil Code (1910), §§ 923, 978.</p>

<p>1. Section 5335 of the Civil Code (1910) provides for the abatement of a blind-tiger nuisance by established equitable procedure. Sections 5336 and 5337 apply to cases where the person alleged to carry on the nuisance is unknown or concealed and is proceeded against as such.</p> <p>2. Section 5335 does not offend the constitutional guaranty of the equal protection of the laws to all citizens.</p> <p>3. The present proceeding is against a known defendant alleged to be operating a blind-tiger nuisance at a designated place. The defendant is not being proceeded against as an unknown or concealed person, and therefore is not concerned with the constitutionality of sections 5336 and 5337, which are not applicable to the case alleged against him. One who would strike down a statute as unconstitutional must show that it affects him injuriously, and actually deprives him of a constitutional right.</p>

<p>Complaint. Before Judge Thomas. Colquitt superior court. January 22, 1914.</p>

Equitable petition. Before Judge Edwards. Douglas superior court. March 27, 1914. Polly Ann Endsley and others, who were daughters and sons of A. Q. Taylor and his wife, N. J. Taylor, instituted an action jointly and severally against their brother D. S. Taylor, and their father A. Q. Taylor, to recover a certain body of land composed of three smaller tracts, and to cancel, as a cloud upon their title, a deed from A. Q. Taylor to D. S. Taylor, purporting to convey the land.

Action for damages. Before Judge Daniel. Henry superior court. April 20, 1914.

<p>Application for year’s support — appeal. Before Judge Little-john. Macon superior court. July 29, 1914.</p> <p>Mrs. D. T. Hood, alleging herself to be the- widow of D. T. Hood, made application to the court of ordinary of Macon county for the setting apart of a year’s support for herself and minor child, out of the estate of her alleged deceased husband. Appraisers were appointed, and citations were duly issued and published. Thereupon came Mrs. Nannie Hood, claiming to be the lawful wife of the decedent, D. T. Hood, and filed a caveat to the application. With the oaveatrix named joined certain other parties alleging themselves to be the lawful children of the decedent. They contested the setting apart of a year’s support to the applicant, on the grounds, that she was not the lawful wife and widow of the decedent; that the oaveatrix, Mrs. Nannie Hood, and D. T. Hood, the decedent, had intermarried about the year 1888; that they lived together as husband and wife in Spalding county, Georgia, until the year 1902, when the decedent abandoned his wife, Nannie, and left her in Spalding county, Georgia, and subsequently entered into a void marriage with Josephine Watkins, the applicant for a year’s support. The ease went by appeal to the superior court; and when it came on there to be tried, the caveators offered the following amendment: “Now come the caveators and amend their objection, and say that in the year 1905 D. T. Hood filed his libel for divorce against Nannie Hood, his wife, and alleged in said petition that said Nannie Hood was a non-resident of the State of Georgia, and that her whereabouts was unknown to said D. T. Hood. That said D. T. Hood knew, at the time he filed said petition, that Nannie Hood was a resident of the State of Georgia and was never a resident of any other State. That the allegation of D. T. Hood’s affidavit that Nannie Hood was a resident of the State of Tennessee was not true, that D. T. Hood knew that Nannie Hood was a resident of Georgia and Spalding county at that time. That Josephine Watkins, now claiming to be the widow of D. T. Hood, knew that Nannie Hood lived in the State of Georgia at the time Hood applied for a divorce, and since that time. Wherefore these objectors pray that their amendment be allowed and filed. That Nannie Hood was never served with any copy or process or with publication of D. T. Hood’s divorce proceedings, and did not know D. T. Hood had obtained a divorce until about the year 1912 or 1913.” This was allowed over objections of the applicant; and a verdict against her application was rendered. She excepted to the allowance of the amendment, and to the refusal of a new trial on her motion.</p>

<p>Where a mortgage on personal property was foreclosed in a justice’s court, but the justice erroneously made the execution which he issued returnable to the city court located in that county; and where such execution . was levied by a constable, and, without the interposition of an affidavit of illegality, the defendant tendered to the constable a forthcoming bond, conditioned to deliver the property on the day of sale, which was specified, but the bond was improperly made payable to the sheriff of the city court, and thereupon the defendant received from the constable possession of the property, in a suit for a breach of such bond it was error to dismiss the action on the ground that the jDrocess was invalid and the bond was accordingly also invalid.</p>

<p>1. Where in the trial of an action to recover land and mesne profits the judge directed the return of a verdict for the plaintiff, and submitted to the jury, under the evidence, the question as to the amount of mesne profits to be recovered, it was not error (no complaint being made as to the court’s directing a verdict in favor of the plaintiff) to have the jury, upon their returning into court a verdict finding a certain sum of money in favor of the plaintiff, amend their verdict by the addition of proper words showing that the verdict was for the recovery of the land and rent, or mesne profits.</p> <p>2. An assignment of error in a motion for new trial, complaining that the court failed and omitted to properly and legally instruct the jury as to “the rules of law governing their deliberations” in determining the question of rent and the amount of rent, or mesne profits, is too vague and indefinite to raise a question for determination by the reviewing court, it not appearing from the ground of the motion containing this exception what instructions were actually given upon the subject nor what “rules of law” should have been given.</p> <p>3. While there was no specific prayer for the recovery of mesne profit^, it does appear from the prayer that the plaintiff was seeking to recover his rents; and all of the evidence except the documentary evidence related to the question of mesne profits, and the evidence of the rental value of the land was admitted without objection. It was, therefore, proper for the court to submit to the jury the question of mesne profits, and for the jury to make a verdict upon that question.</p> <p>4. The evidence authorized the verdict for the rent found as mesne profits.</p>

<p>Complaint. Before Judge Conyers. Jeff Davis superior court. February 17, 1914.</p>

<p>Under the evidence in this case, the grant of a nonsuit by the court was error.</p>

<p>Appeal. Before Judge Ellis. Fultou superior court. November 3, 1914.</p>

Petition for injunction and receiver. Before Judge Mathews. Bibb superior court. October 17, 1914. A. Ií.

<p>Constitutional questions; from Court of Appeals (Case No. 5747).</p>

<p>Processioning. Before Judge Patterson. Gilmer superior court. May 22, 1914.</p>

<p>Claim. Before Judge Wright. Floyd superior court. April 1, 1914.</p>

<p>Complaint for land. Before Judge Wright. Floyd superior court. May %1} 1914.</p>

<p>Eviction. Before Judge Wright. Floj^d superior court. June 24, 1914. (See 140 Qa. 775.)</p>

<p>Habeas corpus. Before Judge Thomas. Tift superior court. July 11, 1914.</p> <p>On the 19th day of October, 1912, there came on to be tried, before the ordinary of Tift county, the case of M. 0. Booth against 6. W. Fletcher and Mrs. G. W. Fletcher, the same being a petition for habeas corpus, brought to recover the possession of one Jessie Fletcher, a child about ten years of age. Upon the hearing the ordinary granted an order awarding the custody of the child to the defendants. The plaintiff presented to the judge of the superior court his petition for a writ of certiorari, which was sanctioned; and when it came on for hearing the judge passed the following order: “This matter having been submitted to me in open court at the December term, 1912, upon consideration it is very evident that the honorable ordinary committed error in failing, under the testimony, to award the custody of the child to the plaintiff in the case. It would be reversible error in me now to hold otherwise. Accordingly it is ordered that a new trial be granted in the case; and that the matter be sent back to the ordinary with instructions.'' On the 15th day of November, 1913, the petition for habeas corpus came on to be heard before the ordinary, who, after hearing the evidence on both sides, passed an order in which the custody of the child was again awarded to the defendants. The plaintiff again sued out a writ of certiorari to have reviewed this latter judgment. On the 11th day of July, 1914, after hearing the petition for certiorari, the court passed an order sustaining the petition, and further adjudging that the custody of the child be awarded to the petitioner, and making final disposition of the cause by ordering that the ordinary enter up judgment awarding the custody of the child to the petitioner, without further hearing. To this order the defendants excepted.</p>

Equitable petition. Before Judge Hawkins. Laurens superior court. May 23, 1914. An equitable petition was filed by Mrs. E. E. Wood, B. B. Wood, J. N. Wood, Mildred Wood, and Evelyn Wood (the last two named being minors and appearing by their next friend, J. N. Wood Sr.) against W. B. Bice. The petition alleged, in substance, as follows: Mrs. E. E. Wood is the wife of J. N. Wood Sr., and the other plaintiffs are their children.

<p>Complaint. Before Judge Thomas. Colquitt superior court. July 27, 1914.</p>

<p>Where a contract of “guaranteed double indemnity” insurance provided that the company agreed to pay the insured “one thousand ($1,000.00) dollars” on the “death of beneficiary,” and, by a subsequent clause of the contract, that “if the name of a person over 21 and under 60 years of age is stated as the beneficiary hereunder, then in the event of the death of said beneficiary during the life of the insured, while this policy is of force, being caused” by accident as provided in the policy, the company would pay the insured the sum of one thousand dollars; and where after the death of the beneficiary it appeared from a petition filed by the insured against the company, to recover the sum of $1,000 on account of his death, that the beneficiary was 67 years of age at the date of issuance of the policy, a demurrer to the petition was properly sustained.</p> <p>(а) This is so regardless of the cause of death of the beneficiary.</p> <p>(б) The contract is to be considered in its entirety, so as to give force and effect to each material clause.</p>

<p>Complaint for land. Before Judge Conyers. Jeff Davis superior court. May 15, 1914.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. April 29, 1914.</p>

<p>1. An indictment containing'two counts was headed, “Georgia, Baldwin County. In the Superior Coux’t of said county.” The first count began: “The grand jurors selected, chosen, and sworn for the County of Baldwin, to wit: [jurors’ names],'in the name and behalf of the citizens of Georgia, charge and accuse,” etc. The second count began: “And the jurors aforesaid, on their oaths aforesaid, do further charge and accuse,” etc. Eeld, that the second count in the indictment should not be stricken on demurrer on the ground of the omission to state that the charge against the accused is made “in the name and behalf of the citizens of Geoigia.”</p> <p>2. Where the grand jurors regularly serving in the superior court have been dischai'ged for the term and the court has finally adjourned for the term, the judge has no jurisdiction to pass an order in vacation requiring the attendance of such discharged grand jurors, so as to empower them, without being agaixi sworn or charged, to prefer an accusation for crime.</p>

Equitable petition. Before Judge Thomas. Brooks superior court. May term, 1914. G. Owens owned certain land in Brooks county. On November 22, 1906, he made a bond for title to Mrs. J. M. Rambo, the purchase-money being $3,200, of which $1,000 was paid in cash, and the balance was represented by five notes for $440 each, with interest at eight per cent, per annum, the first of which was due on January 1, 1908, and the others annually thereafter.

Equitable petition. Before Judge Conyers. Camden superior court. May 9, 1914. W. H. Price, individually. and as temporary administrator of Henry McPrice, brought, an equitable action in the superior court of Camden county against E. Brown, alleging in substance as follows: Jack Price, deceased, was at the time of his death the true and lawful owner and in possession of a described tract of land.

<p>Petition for injunction, etc. Before Judge Hammond. Richmond superior court. March 20, 1915.</p>

<p>Complaint. Before Judge Bell. Pulton superior court. January 24, 1914.</p>

<p>Indictment for murder. Before Judge Edwards. Polk superior court. December 31, 1914.</p>

<p>Equitable petition. Before Judge Eite. Bartow superior court. May 30, 1914.</p> <p>Jones & Oglesby and J. W. Bell filed their petition against George W. Brooke and J. P. Brooke. The case alleged may be briefly summarized as follows: George W. Brooke borrowed from the Lowry National Bank $4,000, to secure the payment of which he gave a deed to three lots of land in Bartow county. Later he sold to Bell, in two separate transactions, part of the land covered by the deed, giving Bell a bond for title thereto, receiving a part of the consideration in cash, and taking Bell’s notes aggregating $4,500. It was agreed that Brooke should deposit these notes with the Lowry National Bank, so that payments made thereon by Bell should to that extent relieve the prior lien of the bank upon the property; and $4,250 of the notes were so deposited. Thereafter Bell sold to Jones & Oglesby 50 acres of the land, for a consideration of $3,500. By agreement, notes aggregating this amount were executed by Jones & Oglesby to Bell, and indorsed by him in blank, in order that George W. Brooke might deposit them with the bank as additional collateral security, unless he could exchange them for some of the notes of Bell already held by the bank. Plaintiffs have only recently learned that these notes were not deposited with the bank by Brooke, and that one of them for $500 has been by him negotiated to Foster & Collins. Plaintiffs have demanded the return to them of the remaining $3,000 of notes, which demand said Brooke refuses, and claims he has the notes in the possession of his brother, J. P. Brooke. His only excuse is that he keeps them to protect his equity in the property, which is protected by the fact that the deed given by him to the bank is a security deed and not an absolute one. There are judgments against George W. Brooke, of record in Bartow county, amounting to over $4,000; and plaintiffs know of no property of his liable to these judgments, or to plaintiffs for any loss they may sustain. George W. Brooke has no right to the custody or control of the notes, but it was his duty to carry out the understanding upon which they were given, that is, of exchanging them for some of the notes of Bell, or else depositing them with the bank. J. P. Brooke could sell or hypothecate the notes to an innocent purchaser, and might force a liability against the plaintiffs without their securing title to the property for the purchase-price of which the notes were givén. Neither of the plaintiffs should be required to pay any part of the notes until they get an unincumbered warranty title to the property, free from any liability for any judgments held by the creditors of George W. Brooke. Among other prayers, it is asked that each of the defendants be restrained from hypothecating or alienating any of the notes; and that they be returned to the plaintiffs, so they may cancel the same or strike off the indorsement of the plaintiff Bell, and strike out the negotiable words in the notes. By amendment the price agreed to be paid by Bell for the property purchased by him is stated as being $5,500, for which he gave his notes, of which notes to the amount of $4,250 were deposited with the Lowry National Bank. Twenty acres of the land included in the deed to the .bank, but not included in the bonds for title given by Brooke, have been sold and conveyed by him; but the remaining twenty acres, unincumbered and not included in said bonds for title, have not been conveyed out of him. J. P. Brooke has claimed in his answer to have a transfer to him of the bond for titles given by the bank to George W. Brooke, and to have paid the latter therefor $1,000; but J. P. Brooke stated in court that this $1,000 represented a loan made by him to his brother; and the plaintiffs are not definitely advised as to' the nature or effect of the transfer. George W. Brooke in his answer has alleged that he assigned the bond for title to J. P. Brooke, before this suit was begun, for a consideration of $1,000, and that “this assignment took out of this defendant all interest then in Mr. Bell’s notes, and in the land described in the said bond, except the interest he had as indorser on the papers, and as warrantor of the title,” and that “this defendant insists that the date of this deed is back of any judgments against him, and this note could in no sense, in law or equity, be subject to any judgment subsequently obtained.” The names of a number of judgment creditors of George W. Brooke, with the amounts of their judgments, and the dates and places of their record in the clerk’s office of Bartow superior court, are set out. Parties holding $1,250 of the notes signed by Bell, other than the $4,250 of notes held by the bank, will be claiming to collect the same out of the plaintiff Bell, although he does not admit that they are innocent purchasers. “Said Lowry Bank will be contending that it has a right to collect the $4,250 worth of J. W. Bell’s notes held by it; and said J. W. Bell should not be forced to pay any of said notes until he can get a perfect title to the property described in the two bonds for titles held by him and signed by Geo. W. Brooke, hereinbefore referred to, free from any of aforesaid judgments, or from any danger of litigation with reference thereto.” Jones & Oglesby deny the right of Foster & Collins or any one else to collect the note claimed by them for the sum of $500, given by them to Bell and indorsed by the latter and sold by George W. Brooke, or that they can be forced to pay their $3,000 of notes in the hands of J. P. Brooke until they receive a deed from plaintiff J. W. Bell; but-they can not terminate their liability on the notes without the consent of the various parties, or without litigation with reference thereto. They can not determine the nature of the transaction transferring the bond for title from the bank to J. P. Brooke, or what his rights are. They are ready and willing to discharge their obligations on the notes whenever they can obtain perfect title to the property purchased by them, free from liens of the various judgments or claims of title or liens by either of the Brookes. The making of the judgment creditors parties will prevent vexatious litigation and multiplicity of suits, and all matters and things involved should be determined in one decree; wherefore they pray that the j’udgment creditors be made parties, and that all matters involved be so determined. By a further amendment it is alleged, that J. P. Brooke has notified the plaintiffs of his intention to bring suit against them on two of the notes held by him, and that when he was restrained from selling or hypothecating the notes they did not contemplate his bringing suit thereon; and it was asked that he be enjoined from doing so. By still another amendment it is alleged, that the Lowry National Bank has obtained judgment against the land concerned and against George W. Brooke for the full amount of its claim, and is preparing to sell the land in controversy thereunder; and that Jones & Oglesby have paid the $500 note which was negotiated to Foster & Collins, and under the order of the court have paid the balance due by them on the land they purchased to J. P. Brooke, who has turned the same over to the Lowry National Bank in reduction of its debt against George W. Brooke. It is sought to obtain a decree directing a sale of the entire property, under which decree the prior lien of the bank is to be preserved and the rights of the other parties fixed prior to the sale, so that the property will bring more than if sold, while the complications in regard thereto exist, under the judgment obtained by the Lowry National Bank. It is prayed that certain described tracts be sold in a named order, and that the funds so derived be dealt with in a designated manner.</p> <p>Demurrers and answers were filed by the defendants. The answers raise several issues of fact as to the matters alleged. For instance, George W. Brooke denies the allegations as to the purpose for which the notes of Jones & Oglesby were indorsed and turned over to him, and sets out a different agreement. He further avers, that the Lowry National Bank agreed to collect the Bell notes and to look to them for the payment of the balance due it; and it had exclusive control of the notes, but refused to make the collection.</p> <p>Without having passed on the demurrers, and without any final determination of the issues of fact made by the pleadings, the judge passed an order directing a sale of the entire property in a specified manner, in which decree he undertook to adjudicate certain rights of the parties with respect to certain tracts of the land. To this decree the defendants excepted.</p>

<p>Action for damages. Before Judge Daniel. Butts superior court. March 31, 1914.</p>

Action for damages. Before Judge George. Crisp superior court. January 27, 1914. W. B. McMichael brought suit against Seaboard Air-Line Railway, for personal injuries which he alleged he sustained in consequence of the negligence of the defendant’s agents and employees. It was alleged in the petition, that the plaintiff was the conductor of a freight-train engaged in the handling of interstate shipments of freight between Atlanta, Georgia, and Birmingham, Alabama.

Action for money had and received. Before Judge Ellis. Eulton superior court. January 5, 1914. Mrs. C. M. Coyne brought a petition against Edgar Alexander, to recover the sum of $606 as money had and received by the defendant for the plaintiff’s use.

<p>Equitable petition. Before Judge Cox. Decatur superior court. January 16, 1914.</p>

<p>1. Where a materialman seeks to foreclose his lien against real estate which lias been improved with material furnished by him to a contractor for such purpose, he can not recover a general verdict and judgment against the owner of the land for the value of the material furnished.</p> <p>(a) Where on the trial of such a case the jury returned a verdict “for the plaintiff against [the defendant real-estate owner] in the sum of [amount stated], and the same shall be a lien against the property described in the petition,” such verdict is a general one against the owner, and is erroneous as against him. But a new trial will not be ordered if the plaintiff will, within thirty days from the filing of the remittitur in the court below, write off from the verdict and judgment the general finding against the owner of the premises, so as to make them special instead of general as against the owner; otherwise a new trial is ordered.</p> <p>2. Where in such case the name of the contractor was omitted from the verdict, after the return of which the same jury (who had not left the box or dispersed) rendered a verdict by default in another ease wherein a witness was sworn, and after this the plaintiff’s attorney in the instant case discovered the omission of a finding therein against the contractor, and on motion the court instructed the jury to again retire to their room to render a verdict against the contractor, which they did, such practice, though irregular, will not require a new trial, where it appears that counsel for the complaining party was present when the jury were thus sent out, knew of what had transpired, and made no objection at the time.</p>

<p>Complaint for land; and receivership. Before Judge Ellis. Fulton superior court. May 25, August 11, 1914.</p>

<p>Trover. Before Judge Bell. Fulton superior court. June 2i, 1914.</p>

<p>Complaint for land. Before Judge Bell. Fulton superior court. May 25, 1914.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. June 12, 1914.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. September 10, 1913.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. June 18, 1914.</p>

<p>Exceptions to auditor’s report; from Fulton. Motion to dismiss.</p>

<p>Petition for injunction. Before Judge Bell. Gwinnett superior court. August 5, 1914. u</p> <p>An act of the legislature was approved August 19, 1911, providing for the establishment of a system, of drainage, and means for carrying into effect the requirements of the act. Acts 1911, p. 108 et seq.; Park’s Code, § 439 (a), et seq. Under the provisions of the act a drainage district was established -which embraced portions of two counties. Assessments were made upon the several properties to be benefited by the improvement, for the purpose of raising funds to pay the cost of making the improvement. Some of the landowners having failed to pay their assessments, bonds were issued and sold under the provisions of the act; levees and drains were constructed for the drainage of lands within the district. The commissioners were proceeding to enforce collection of the assessments, when A. J. Almand and T. 0. McElroy, owners of property within the district, instituted an action against the commissioners and the tax-collector, to enjoin collection of the assessment. Numerous grounds were relied on for the grant of the relief, among them being that the provisions of the act in regard to the establishment of the district and of the execution of the bonds had not been complied with, and that the act was unconstitutional. The defendant filed a demurrer and an answer. In the latter it was urged that on account of certain conduct upon the part of the plaintiffs they were “estopped from raising any question as to the legality of said act or as to the constitutionality of said act, and . from raising any of the questions sought to be raised in their petition in this case.” On an interlocutory hearing the case was submitted to the judge, without evidence, upon the following ’ 'agreement, signed by the respective counsel for the parties: “It is agreed that the constitutionality of the drainage act of 1911, page 108, and the question of estoppel, under the pleadings in this ease, be submitted to and passed on by the court at the present time, eliminating all other questions for the present except the constitutionality of the act and the defense of estoppel.” The judge rendered a decision as follows: “This case coming on to be heard, and after hearing and considering the same, and counsel agreeing that only two questions be submitted to the court at this time, to wit, the constitutionality of the act of 1911, known as the drainage act, approved August 19, 1911, and the question of estoppel: It is ordered and adjudged by the court that said act is valid and does not violate or contravene the constitution of the United States nor the constitution of the State of Georgia, as contended by the plaintiff; and that the defendants may plead estoppel. The interlocutory injunction is denied and the restraining order heretofore granted dissolved.” The plaintiffs excepted.</p> <p>Section 2 of the act (Park’s Code, § 439 (b)) relates to procedure for the establishment of drainage districts. It is required that application for the establishment of the drainage district be filed, and that the application describe the specific body or district of land in the county and adjoining counties in such way as to convey an intelligent idea as to the location of the land, and show that the land is-subject to overflow or too wet for cultivation, and that “public benefit, or utility, or the public health, convenience, or welfare will be promoted by draining, ditching or leveeing the same, or by changing or improving the natural watercourses,, and setting forth therein, as far as practicable, the starting-point, route, and terminuses and lateral branches, if necessary, of the proposed improvement.” After the filing of the application, other procedure is prescribed, in section 2 and subsequent sections, for the establishment of the district and for draining the lands in the district. ' In section 12 (Park’s Code, § 439 (1)) it is provided: “It shall be the duty of the engineer and viewers to personally examine the land in the district and classify it with reference to the benefit it will receive from the construction of the levee, ditch, or watercourse, or other improvement. In case of drainage, the degree of wetness of the land, its proximity to the ditch or a natural outlet, and the fertility of the soil shall be considered in determining the amount of benefit it will receive by the construction of the ditch. The land benefited shall be separated in five classes. The land receiving the highest benefit shall be marked “Class A,” that receiving the next highest benefit “Class B,” that receiving the next highest benefit “Class C,” that receiving the next highest benefit “Class D,” and that receiving the smallest benefit “Class E.” The holdings of any one landowner need not necessarily be all in one class; but the number of acres in each class shall be ascertained, though its boundary need not be marked on the ground or shown on the map. The total number of acres owned by one person in each class, and the total number of acres benefited, shall be determined. The total number of acres of each class in the entire district shall be obtained and presented in tabulated form. The scale of assessment upon the several classes of land returned by the engineer and viewers shall be in the ratio of five, four, three, two, and one; that is to say, as often as five mills per acre is assessed against the land in “Class A,” four mills per acre shall be assessed against the land in “Class B,” three mills per acre in “Class C,” two mills per acre in “Class D,” and one mill per acre in “Class E.” This shall form the basis of the assessment óf benefits to the lands for drainage.” This is followed by provisions for hearings to be afforded any property owners who may not be satisfied with the classifications of their property, or who may claim that their property is not benefited by the improvement. Section 31 (Park’s Code, § 439 (ee)) of the act provides: “After the classification of the land and the ratio of assessment of the different classes’ to be made thereon has been confirmed by the court, the drainage commissioners shall prepare .an assessment-roll or drainage-tax duplicate, giving a description of all the land in said drainage district, the name of the owner, so far as can be ascertained from the public records, and the amount of assessment against each of the several tracts of land. In preparing the assessment-roll the board shall ascertain the total costs of the improvement, including the damages awarded and to be paid to the owners of land, and all incidental expenses, and deduct therefrom any special assessment made against any railroad or highway, and the remainder shall be the amount to be borne and paid by the lands benefited. This amount shall be assessed against the several tracts of land according to the benefit received, as shown by the classification and ratio of assessment made by the viewers and confirmed by the board of drainage commissioners. This drainage-tax roll shall be made in duplicate, signed by the chairman and secretary, and one copy filed with the drainage record and the other delivered to the sheriff; or other county tax-collector. There-shall be appended an order to collect the said assessments, and the same shall have the force of a judgment as in the case of State and county taxes.” Section 32 (Park’s Code, § 439 (ff)) provides: “If the total cost of the work is less than an average of twenty-five cents per acre on all the land in the district, the assessment made against the several -tracts shall be collected in one installment, by the same officer and in the same manner as State and county taxes are collected, and payable at the same time. In case the total assessment exceeds the average of twenty-five cents per acre on all lands in the district, the said board of drainage commissioners may give notice of three weeks by publication in some newspaper of general circulation in the district, if there be one, and also by posting a written or printed notice at the door of the court-house and at five conspicuous places in the drainage district, that they propose to issue bonds for the construction of said improvement, giving the. amount of bonds to be issued, the rate of interest they are to bear, and the time when payable. Any landowner having lands assessed in the district and not wanting to pay interest on the bonds may, within thirty days after the publication of said notice, pay the county treasurer the full amount of his assessment, and have his land released therefrom.” Section 33 (Park’s Code, §§ 439 (gg), 439 (hh)) provides: “Each and every person owning land in the district, which is assessed for the construction of an improvement, who shall neglect or fail to pay the full amount of his assessment to the county treasurer within the time specified, shall be deemed as consenting to the issuing of said drainage bonds, and in consideration of the right to pay his assessments in installments he thereby waives his right to any defense against the collection of said assessment because of an irregularity, illegality, or defect in the proceedings prior to this time, except in the case of an appeal as heretofore provided, which is not affected by this waiver. The term ‘person/ as used in this act, includes any firm, company, or corporation.” Section 34 (Park’s Code § 439 (ii)) provides: “At the expiration of the thirty days after the publication, the board of drainage commissioners may issue bonds for the full amount of the assessment not paid in to the county treasurer, together with interest thereon, costs of collection, or incidental expenses. These bonds 'shall bear six per cent, interest per annum, payable annually, and shall be paid in ten annual installments. The first installment of the principal shall mature at the expiration of three years from the date of issue; and one installment each succeeding year for nine additional years. The commissioners may sell these bonds at not less than par, and devote the proceeds to the payment of the work as it progresses. In no case shall bonds be issued until the tax levy has been made to meet them as they come due. The bonds issued shall be for the exclusive use of the levee or drainage district specified on their face, and should be numbered by the board of drainage commissioners, and recorded in the drainage record, which record shall set out specifically the lands embraced in the district on whielvthe tax has not been paid in full, and which land is assessed for the payment of the bonds issued and interest thereon. This assessment shall constitute the first and paramount lien, second only to the State and county taxes, upon the lands assessed for the payment of said bonds and the interest .thereon as they become due, and shall be collected in the same manner by the same officers as the State and county taxes are collected. If any installments of principal or interest represented by said bond shall not be paid at the time and in the manner when the same shall become due and payable, and such default continue for a period of six months, the holder or holders of such bonds upon which default has been made may have a right of action against said drainage district or the board of drainage commissioners of said district, wherein the court-may issue a writ of mandamus against the said drainage district, its officers, including the tax-collector and treasurer, directing the levying of a tax or special assessment as herein provided, and the collection of same, in such sum as may be necessary to meet any unpaid installments of principal and interest and costs of action, and such other remedies as are hereby vested in the holder or holders of such bond or bonds in default as may be authorized by law; and the right of action is hereby vested in the holder or holders of such bond upon which default has been made, authorizing them to institute suit against any officer on his official bond, for failure to perform any duty imposed by the provisions of this law. The official bonds of the tax-collector and county treasurer shall be liable for the faithful performance of the duties herein assigned them. Such bonds may be increased by the board of county commissioners.”</p> <p>The. other material facts appear in the opinion.</p>

Complaint. Before Judge Gilbert. Marion superior court. July 16, 1914. E. H. Robertson bought from W. B. Matthews an interest in certain property and gave in part for the purchase-price two promissory notes, one for $1,375, falling due January 1, 1909, and one for $3,000, falling due January 1, 1910. On August 37, 1908, he sold such interest to R. H. Stokes.

<p>Equitable petition; from Eulton. Motion to dismiss writ of error. •</p>

<p>Action upon insurance policy. Before Judge Bell. Fulton superior court. June 29, 1914.</p>

<p>Equitable petition. Before Judge Walker. Washington superior court. June 4, 1914.</p>

<p>Complaint for land. Before Judge Rawlings. Toombs superior court. May 26, 1914.</p>

<p>Equitable petition. Before Judge Hammond. Richmond superior court. February 11, 1914.</p>

<p>Under tlie pleadings and the evidence in this ease, the court did not err in directing a verdict in favor of the defendant.</p>

<p>1. Promoters of a corporation are personally liable on tlieir contracts for property purchased and received by them before the corporation is chartered and organized, unless the other party agreed to look to some other person or fund for payment.</p> <p>2. Acceptance by the creditor of partial payments from the corporation subsequently organized, and his prosecution of a proceeding to hold the corporation liable on the debt as being its obligation, without more, will not extinguish the promoters’ liability or estop the creditor from asserting the personal liability under the circumstances stated in the previous syllabus.</p> <p>3. In order for a vendee of personalty in a contract of sale, reserving title to the vendor until the full payment of purchase-money, to rescind the contract, or have an abatement in the price on account of its destruction, it must affirmatively appear that the property was destroyed without the vendee’s fault.</p>

<p>A debtor on his own petition was adjudicated a bankrupt, and had all of his property, consisting of a stock of merchandise, exempted in bankruptcy. The property was turned over to the bankrupt, who did not have it set apart as a homestead to him and his family in the State court. More than three years after the adjudication in bankruptcy, and after the exemption of the property in the bankruptcy court, a creditor, whose claim was listed in the bankruptcy application, brought suit on his claim. There was no plea or suggestion of bankruptcy. The suit eventuated in a judgment, and an execution based thereon was levied on the property exempted in the bankruptcy court and a claim was interposed by the bankrupt as head of the family. No discharge has been granted to the bankrupt. Held, that the property is subject to the fi. fa.</p>

<p>Complaint. Before Judge Ellis. Eulton superior court. July 3, 1914.</p>

<p>Appeal. Before Judge Hammond. McDuffie superior court. May 19, 1914.</p>

<p>Equitable petition. Before Judge Conyers. Jeff Davis superior court. February 19, 1914.</p>

<p>. Exceptions to auditor’s report. Before Judge Park. Wilkes superior court. August fi, 1914,</p>

<p>1. Where a widow institutes an action against a railroad company for the homicide of her husband, and the petition alleges facts sufficient to show a cause of action under the State law, and makes no reference to any engagement of the deceased person in interstate commerce, and the defendant files an answer which merely denies “as untrue” the several paragraphs of the petition, such denial does not extend beyond a denial of the facts specifically alleged.</p> <p>(а) Where in such an action the defendant desires to defeat the widow’s right to sue, by proof of facts tending to show that at the time of the catastrophe her husband was engaged in interstate commerce under his employment by the defendant, it is incumbent upon the defendant to specifically plead such new facts.</p> <p>(б) In the absence of such a plea it is not erroneous to repel evidence relied on to show that the plaintiff’s husband was engaged in interstate commerce under his employment by the defendant, on the ground that the plea does not raise such question.</p> <p>2. In this case it was shown that at the time of the homicide the plaintiff’s husband was on duty, under his employment by the defendant, as a watchman at a grade-crossing where the railroad-tracks crossed a street in a city. The only duty of the watchman appears to have been to protect travelers on the street from the danger of injury by trains on the crossing. At the time of the catastrophe he was engaged in warning travelers on the street of the approach of a freight-train coming from the south, when a passenger-train on a parallel track, approaching unobserved by him from the north, struck and killed him. The passenger-train plied between Tate, Georgia, and Atlanta, Georgia. The freight-train plied between Atlanta, Georgia, and Etowah, Tennessee, and carried freight for intermediate points in Georgia, but it was not shown to have carried freight to points beyond the limits of the State. Held, that the evidence was insufficient to show that the plaintiff’s husband was engaged in interstate commerce; and there was no error in refusing to chai-ge the jury that as a matter of law he was so engaged, and that for such reason the plaintiff could not recover.</p> <p>3. The evidence concerning the employment of,the watchman and his duties was not of such character as to demand a finding that he assumed the risk of danger to himself from the defendant’s negligent operation of its trains at the crossing; and the charge which in effect submitted to the jury the question whether the watchman assumed the risk of the danger which resulted in his death, constituted no error of which the defendant could complain.</p> <p>4. The evidence was sufficient to make out a prima facie case, and there was no error in overruling the motion for nonsuit.</p> <p>5. The blow-post law being applicable, an instruction that “you are to take into consideration all the facts and circumstances in the ease — the place where the occurrence took place, its publicity,, the amount of travel across the railroads at that place, the amount of care and caution which these required of the defendants — that they be on the lookout and to have their locomotives under control — the diligence or want of diligence shown to have boon exercised in respect to these matters at this time and place,” was not erroneous on the ground that it invaded the province of the jury, in that in effect it instructed them that it was the duty of the defendants to “be on the lookout and to have their locomotive under control.”</p> <p>6. This being an action against a railroad company for the homicide of one of its employees, alleged to have been committed by the negligence of the servants of the defendant in the operation of one of its trains, it was erroneous to charge the jury, as applicable to the case, the provision of the Civil Code relating to the statutory presumption against railroad companies arising in such cases upon proof of injury.</p> <p>(a) The evidence did not demand a verdict for the plaintiff, and the error in the charge was sufficient to require the grant of a new trial. •</p>

<p>Illegality of execution. Before Judge Edwards. Haralson superior court. February 14, 1915.</p>

<p>Action for damages. Before Judge Freeman. Meriwether superior court. May 20, 1914.</p>

<p>Action for damages. Before Judge Bawlings. Emanuel superioi; court. January 13, 1914.</p>

<p>Equitable petition. Before Judge Cox. Calhoun superior court. June 24, 1914.</p>

<p>Equitable petition. Before Judge Thomas. Berrien superior court. July 18, 1914.-</p>

<p>Action for damages. Before Judge Conyers. Glynn superior court. June 25, 1914.</p>

<p>Complaint. Before Judge Reid. Newton superior court. January 31, 1914.</p>

<p>Action, upon bond. Before Judge Eawlings. Emanuel superior court. January 15, 1914.</p>

Equitable petition. Before Judge Bell. Fulton superior court. August 28, 1914. The Union Tank Line Company, a New Jersey corporation, was engaged in the business of renting out tank-cars to be employed in transporting oil and other like fluids over railroads throughout the United States.

<p>1. There was no error in overruling the demurrer to the petition.</p> <p>2. Where suit was brought against an electric-light and power company to , recover damages to the health of the plaintiff, alleged to have been caused by a nuisance created by the dam and reservoir of the defendant, and where it appeared that a number of suits had been brought by other plaintiffs against the same defendant, some of them in the county where the first-mentioned suit was brought, and some of them in other counties, seeking to recover from the defendant on account of damages alleged to have been caused by the dam and reservoir of the defendant, this did not disqualify all of the relatives of the plaintiffs in such other cases, within the fourth (or other) degree, from sitting as jurors in the first-mentioned case.</p> <p>3. The evidence was sufficient to authorize the jury to find that the person on whom the service of the petition and process was perfected was an agent of the defendant company, within the meaning of the Civil Code (1910), ■§ 2258, rather than a mere servant.</p> <p>4. While the charge may not have been beyond the range of criticism in some respects, yet when considered as a whole, especially in the absence of any written request, none of the parts of it complained of constituted reversible error for the reasons assigned. The evidence was sufficient to support the verdict, and there was no error in overruling the motion for a new trial.</p>

Action upon insurance policy. Before Judge Worrill. Early superior court. April 10, 1914. James B. Roberts applied for a policy of insurance upon his life in the Northwestern National Life Insurance Company. In his application he directed that the policy be made payable to his wife, Laura Roberts, reserving the right to change the beneficiary.

<p>Action upon insurance policy. Before Judge Bell. Fulton superior court. April 20, 1914.</p>

<p>Action upon insurance policy. Before Judge Hammond. Richmond superior court. July 27, 1914. (See 141 Ga. 389.)</p>

<p>1. Where a judgment has been entered against the principal and surety on a ne exeat bond signed by them, they can not have the judgment set aside on motion because of the insufficiency of the affidavit upon Which the writ was sanctioned. Blue v. Sheppard, 28 Ga. 566.</p> <p>2. Construing the ne exeat bond in connection with the order of the court requiring bond given, it is held to be an appearance bond. But the court erred in entering up judgment against the principal and surety on the bond for the sum named therein, it appearing that neither of them had been served with a rule nisi, or otherwise given an opportunity to show cause why the bond should not be forfeited, before the judgment was' rendered.</p>

<p>Action for damages. Before Judge Charlton. Chatham superior • court. March 2i, 1914.</p>

Action for damages. Before Judge Thomas.' Tift -superior court. July 7, 1914 The suit was by a widow to recover damages caused by the alleged wrongful death of her husband, due to the defendant’s negligence. It was alleged that the defendant, doing business as the Tifton Terminal Coprpany, is a common carrier under the laws of Georgia, and owns and operates a number of railroad tracks in the City of Tifton.

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. June 10, 1914.</p> <p>J. K. Ottley, T. D. Meador, and B. H. Drake, as trustees in bankruptcy of the Spalding Cotton Mills, a corporation bankrupt, instituted suit in the superior court of Eulton county against J. A. McCrary, Mrs. C. B. Sasser, and J. A. Sasser, residents of Eulton county, and a large number of other persons residing beyond the limits of Eulton county, including E. E. Carlisle of Spalding county. Carlisle filed a separate demurrer, which was overruled as to each and every ground therein taken; and he excepted to this judgment. The defendants were alleged to have been stockholders in the Spalding Cotton Mills, and as such to have received separate dividends on their respective shares of stock for the years 1901 to 1909, inclusive. The suit was to recover the dividends thus paid, with interest. Carlisle was alleged to have had two shares of stock, and the total amount of dividends alleged to have been paid him was $166. The petition further alleged the following in substance. The defendants constitute all of the stockholders, except such as are deceased without administration on their estates, whose heirs at law are unknown to petitioner, and such as have left the jurisdiction, leaving no property, and such other stockholders as are so absolutely insolvent that a judgment against them would be of no value. At various times during the operation of the Spalding Cotton Mills as a going business concern, the corporation paid to its stockholders the dividends before mentioned, which “were entirely unearned.” At the time each of the dividends was paid the corporation had earned no profits or surplus out of which dividends could lawfully be paid; and payment of such dividends “impaired the capital assets of the corporation,” and constituted an unlawful appropriation of the capital assets. Under the circumstances named, the stockholders were not authorized to retain the dividends so paid to them; and petitioners, as trustees in bankruptcy, are entitled, under the general principles of law, to recover the same. The question of the liability of each defendant rests upon the same state of facts and the same questions of law; and therefore one suit can equitably and speedily adjust all questions arising relatively to any of the defendants. Unless the court takes jurisdiction and in one suit adjusts all of the matters, petitioners will be forced to file separate suits against each defendant, which will needlessly involve a multiplicity of suits. The total amount of unearned dividends when recovered will be insufficient to pay the indebtedness of the bankrupt.</p>

<p>The written contracts on which the cause of action was predicated were unambiguous; and the court erred in allowing parol evidence to explain the intention of the parties, and in charging the jury with reference to the effect of such evidence on the contracts.</p>

Action for damages. Before Judge Rawlings. Emanuel superior court. January 13, 1914. Mrs. Fannie T. Samples brought suit against the Georgia and Florida Railway Company, alleging in substance as follows: On December 31, 1911, she purchased from the agent of the defendant company at Millen, Ga., a ticket from Millen to Stillmore, with a coupon attached thereto for a return trip. The coupon insured her return from Stillmore to Millen at any time until January 8, 1912.

Equitable petition. Before Judge Mathews. Bibb superior court. . April 1, 1914. The Southern Ice and Coal Company brought a petition against the Atlantic Coal and Ice Corporation, alleging in substance as follows: The plaintiff is a Georgia corporation, with a capital stock of $150,000. The defendant corporation was created and organized under the laws of Virginia, with a capital stock of $7,-000,000.

<p>1. As a general rule it is not permissible for a party to attack a judgment for fraud in a collateral proceeding. But where the parties to a divorce decree, rendered by a court of the State of Texas at the time both were residents of that State, subsequently remove to Georgia, and one of them brings habeas corpus for a minor child of the marriage, in the possession of the other party, and the respondent sets up the Texas divorce decree as establishing his right to the custody of the child, the applicant may show that the provision in the decree disposing of the child was obtained by fraud. Likewise the respondent may repel the charge of fraud by competent evidence.</p> <p>2. In a contest between parents over the possession of a child of the marriage, witnesses should not be permitted to give their opinion that one or the other of the parties is an unfit and improper person, or that the interest of the child will be best subserved by awarding its custody to one of the contending parties.</p> <p>3. Testimony of a witness that people in the neighborhood of one of the parties had denounced his character as bad, but refused to give an affidavit to that effect because of fear of injury to person or property, is hearsay and inadmissible.</p> <p>4. A decree in a divorce suit awarding a child of the marriage to one of the parties is prima facie evidence of the legal right to its custody, but is not conclusive in habeas-corpus proceedings, where the circumstances and conditions pertaining to the fitness of the'parent, arising since the date of the decree, are involved. If, since the decree, the circumstances have changed, a habeas-corpus court may award the custody to the other parent, or to a stranger, if the welfare of the child demands it.</p>

<p>The act approved September 4, 1908, entitled “an act to provide for the establishment of children’s courts as branches of the superior courts,” etc., held unconstitutional, because violative of article 6, section 9, paragraph 1, of the constitution of 1877, which provides for uniformity of the jurisdiction, powers, proceedings, and practice of all courts of the same grade or class,” etc.</p>

Action for damages. Before Judge Reid. Rockdale superior court. February 21, 1914. Georgia Langley brought suit against Cora G. Mitchell, alleging in substance as follows: The plaintiff and the defendant were sisters, and they had another sister. They had a half-brother who had resided for some time in the State of Colorado, and who had been in feeble health, weak in body and mind, and liable to be'influenced.

<p>Habeas corpus. Before Judge Park. Baldwin superior court. November 7, 1914.</p>

<p>Complaint for land. Before Judge Sheppard. Tattnall superior court. May 33, 1914.</p>

<p>Lien foreclosure. Before Judge Charlton. Chatham superior court. January 13, 1914.</p>

<p>Under the facts of this case the court did not err in sustaining the demurrer and dismissing the petition.</p>

<p>Indictment for rape. Before Judge Charlton. Chatham superior court. June 4, 1915.</p>

<p>Indictment ior rape. Before Judge Bartlett. Douglas superior court. May 28, 1915.</p>