Volume 144 — Georgia Reports

<p>Equitable petition. Before Judge Thomas. Berrien superior court. May 2, 1914.</p>

<p>Action for damages. Before Judge Littlejohn. Macon superior court. July 10,1914.</p>

<p>Affidavit of- illegality of execution. Before Judge Conyers. Appling superior court. March 10, 1914.</p>

<p>Complaint for land. Before Judge Ellis. Fulton superior court. March 20, 1914.</p>

<p>Complaint. Before Judge Rawlings. Emanuel superior court. January 14, 1914.</p>

<p>Action for damages. Before Judge Rawlings. Washington superior court. June 22, 1914.</p>

<p>Action for damages. Before Judge Rawlings. Washington superior court. June 22, 1915.</p>

<p>Claim. Before Judge Charlton. Chatham superior court. June 16, 1914.</p>

<p>Action for damages. Before Judge Charlton. Chatham superior court. March 14, 1914.</p>

<p>Probate of will. Before Judge Charlton. Chatham superior court. June 11, 1914.</p>

Complaint. Before Judge Sheppard. Tattnall superior court. May 23, 1914. L. L. Thomas, an attorney at law, brought suit in the superior court for his clients, Jordan & Rogers, against the Glennville Investment Company upon a promissory note for $3,000 principal, with interest and ten per cent, attorney’s fees, and for certain equitable relief.

<p>Action for damages. Before Judge Charlton. Chatham superior court. July 15, 1914.</p>

<p>Equitable petition. Before Judge Sheppard. Liberty superior court. January 27, 1914.</p>

<p>Equitable petition. Before Judge Sheppard. Tattnall superior court. May 23, 1914.</p>

<p>Complaint. Before Judge Mathews. Bibb superior court. January 17, 1914.</p>

<p>Complaint for land. Before Judge BeicL Neivton superior court. January 8, 1914.</p>

<p>Equitable petition. Before Judge Walker. Wilkes superior court. July 7, 1914.</p>

<p>Equitable petition. Before Judge Hammond. Bichmond superior court. May 30, 1914.</p>

<p>Complaint. BefQre Judge Walker. Wilkes superior court. June 15, 1914.</p>

<p>Action for damages. Before Judge Walker. Warren superior court. June 34,1914.</p>

<p>1. Under the Civil Code (1910), § 3630, a navigable tidewater includes any inlet of the sea where the tide regularly ebbs and flows, which is in fact used for purposes of navigation, or is of such a character as to be capable of bearing upon its bosom, at mean low tide, boats loaded with freight in the regular course of trade. With respect to the latter classification it is not essential that there be a public terminus at both ends of the inlet, but the navigability of the inlet is determined by the capability of the water to bear boats of the character described in the statute at mean low tide.</p> <p>2. Where a navigable inlet is landlocked by land privately owned, the landowner’s .property rights extend to low-water mark; and the public has no right to use the adjacent land above low-water mark in connection with fishing, or otherwise to trespass thereon.</p>

Equitable petition. Before Judge Ellis. Fulton superior court. January 29, 1914. ■ W. E. Arnaud and others brought suit against Jonathan B. Frost and J. M. -Bishop of Fulton county, and Thomas J. Shanley of the State of Montana, to recover money alleged to have been paid to them by the plaintiff in connection with the promotion of a corporation.

<p>Equitable petition. Before Judge Ellis. Fulton superior court. March 6, 1914.</p>

<p>Action for money had and received. Before Judge Ellis. Fulton superior court. May 8, 1914.</p>

<p>Equitable petition. Before Judge Beid. Clayton superior court. April 24, 1914.</p>

<p>Complaint. Before Judge Hawkins. Emanuel superior court. June 6, 1914.</p>

<p>Action for damages. Before Judge Rawlings. Toombs superior court. July 15, 1914.</p>

<p>Attachment. Before Judge Hammond. Richmond superior court. January 16, 1914.</p>

<p>Petition for injunction. Before Judge Hammond. Richmond superior court. October 24, 1914.</p>

<p>Complaint. Before Judge Charlton. Chatham superior court. March 24, 1914.</p>

<p>Action for damages. Before Judge Charlton. Chatham superior court. June 8, 1914.</p>

<p>Money rule. Before Judge Mathews. Bibb superior court. January $0, 1914.</p> <p>H. E. Allen, as administrator of the estate of George Eoberts, filed his petition alleging substantially as follows: Prior to his appointment as permanent administrator, William Eoberts as temporary administrator of said estate had filed a suit in Stewart superior court against the Seaboard Air-Line Eailway, for damages on account of the homicide of George Eoberts, alleging that his death was due to the negligence of the defendant company. Subsequently the temporary letters were abated, and petitioner was appointed permanent administrator, and by proper amendment was substituted and made plaintiff in the cause in lieu of the temporary administrator. The temporary administrator had contracted with and employed the firm of Napier, Maynard & Plunkett, attorneys at law, of Macon, Ga., to prosecute the suit for him against the Seaboard Air-Line Eailway, contracting to give these attorneys, as compensation for their services, twenty-five per cent, of the amount recovered against the railway company. After petitioner was made permanent administrator, he contracted and agreed with these attorneys to continue the prosecution of the case, and to represent petitioner ás the permanent administrator of the estate, on the same terms as existed between them and the temporary administrator. At the October term, 1913, the attorneys, acting under the agreement with petitioner, secured a verdict and judgment in favor of petitioner as administrator, against the Seaboard Air-Line Railway, for the sum of $2750; and on October 25, 1913, the same attorneys collected of the defendant railway the full amount of the verdict and judgment; notwithstanding which they have failed and refused to turn over to petitioner, as administrator of the estate, the sum so collected or any part thereof, less their fees as contracted for, except that they have conditionally offered to pay him his commissions as administrator if he would accept the same in full settlement, which he declined to do; and they wrongfully and erroneously, and contrary to law, claim the right to administer and distribute the fund themselves. A rule nisi was prayed against the attorneys, requiring them to show cause why they do not pay over to petitioner the money on written demand, and why the rule should not be made absolute, etc.</p> <p>The defendants filed an answer in which, among other things, they averred that after Allen was appointed permanent administrator, and before he was made a party, he said he was willing for defendants’ firm to continue the prosecution of the cause and to represent him as permanent administrator of the estate. After he was made a party'plaintiff there was never anything said about fees, and the only time he ever mentioned the subject of attorney’s fees was a short while after he was made permanent administrator. Defendants denied that petitioner, as administrator, made any contract employing them to prosecute the case. They already had a contract with the temporary administrator individually and as such temporary administrator, and on that contract suit had been filed and they had a lien on the suit for fees; and the contract made by the temporary administrator could not, as a matter of law, be disturbed by the permanent administrator. Plaintiff stated to defendants that he wanted them to continue the prosecution of the suit, but what transpired between plaintiff and defendants did not amount to a contract. At the October term, 1913, of Stewart superior court a verdict and judgment were rendered in favor of H. E. Allen, administrator, for the use and benefit of William Eoberts, against the defendant railway for the sum of $2750, and 'at the time of the rendition thereof defendants were acting under their original contract of employment, which was made by the real plaintiff in the case, William Eoberts, and Allen was only a nominal party to the case. Defendants collected the $2750, and they offered Allen his commissions as administrator, together with the costs and expenses of prosecution, as well as court costs; but they have refused to give him the nét amount which belongs to William Eoberts, and the same has been turned over to William Eoberts, who is the sole beneficiary of the fund, and he has been fully and completely settled with. Defendants were employed to bring suit against the railway company for the tortious homicide of George Eoberts, who died unmarried and childless, leaving no mother, and who was the son of William Eoberts. The suit was brought in the name of William Eoberts individually and as temporary administrator of the estate of George Eoberts, and after the suit was brought H. E. Allen was made permanent administrator of the estate of George Eoberts in the place of William Eoberts, and was substituted as party plaintiff. The defendant railway answered the suit, setting up that it was an interstate carrier, and that at the time George Eoberts was killed he was in the discharge of his duty as an employee of the railway and was engaged in interstate commerce, and that the Federal employer’s liability act controlled the case. The railway made the voucher payable to Napier, Maynard & Plunkett, attorneys of record. It was sent directly to them; they cashed it, and have fully settled with William Eoberts, for whose use and benefit the money was recovered.</p>

<p>Complaint. Before Judge Mathews. Bibb superior court. January 20, 1914.</p>

<p>Complaint for land. Before Judge Mathews. Bibb superior court. May 23, 1914.</p>

<p>Complaint for land. Before Judge Walker. Lincoln superior court. January 26,. 1914.</p>

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

<p>Action for damages. Before Judge Fite. Whitfield superior court. February 2, 1914.</p>

<p>A party can not impeach his own witness voluntarily called by him, unless he can show to the court that he has been entrapped by the witness by a previous contradictory statement.</p> <p>(a) And where on the trial of a case a party thus offering a witness did so upon faith of testimony delivered by the witness on another trial and in another ease, which was reduced to writing, in which the witness made statements contradictory to his present testimony, the party offering him in the last trial will not, on this basis, be permitted to attack the witness in an effort to impeach him.</p> <p>(h) And where in such a case a party was allowed to offer witnesses for the purpose of impeachment, over objection of the opposite party on the ground that proper foundation had not been laid, and the testimony of the impeaching witnesses detailed statements made by the witness whom it was sought to impeach, different from his present testimony and relating to material things, the error in allowing such impeaching testimony is cause for a reversal.</p> <p>(e) Nor is the proper foundation laid for the impeachment of one’s own witness, where the basis is the testimony of third persons who heard the testimony of that' witness given in another ease relating to the same transaction, and contradictory to the testimony of the witness in the cause on trial, it not appearing that the witness by himself or through others had communicated to the party offering him what the witness had oestified on the former trial.</p>

<p>Equitable petition. Before Judge Hammond. Burke superior court. May 28, 1914.</p>

<p>Eviction. Before Judge Sheppard. Bryan superior court. July 2, 1913.</p>

<p>Indictment for rape. Before Judge Hardeman. Washington superior court. May 10, 1915.</p>

<p>Rule. Before Judge Brand. Banks superior court. March 19, 1914.</p> <p>In an equitable proceeding Carr was appointed receiver for certain lands, with direction to collect the rents arising therefrom for a designated period, and to hold the same to be paid out under orders of the superior court appointing him such receiver. Carr mingled the funds so collected by him as receiver with the assets of the partnership, Carr, Boyd & Company, of which he was a member. Subsequently both the partnership and Carr were adjudicated bankrupts, and the funds collected by Carr as receiver were not paid out under order of the court. Hardeman & Phinizy, upon whose petition Carr was appointed receiver, obtained a rule requiring him to show cause why the money collected by him as receiver should not be paid over to them, or to whomever the court might award the same; and to show cause why he should, not be held in contempt of court. Miller, a judgment creditor, filed an intervention, claiming the funds in the hands of the receiver; and Miller and Hardeman & Phinizy consented to a distribution of the same. The court passed an order directing that the money, after the payment of the receivership expenses allowed, be paid over to Miller and Hardeman & Phinizy. To this order Carr excepted.</p>

<p>Equitable petition. Before Judge Patterson. Cobb superior court. June 19, 1914.</p> <p>Tlie assignments of error are based on rulings on questions raised by demurrer to tbe petition' in an equitable action. The following appears from the allegations of the petition: George IÍ. Camp died on August 26, 1907, leaving a large estate which was disposed of by will. Eichard H. Field and John T. Brantley were nominated executors. Among the legatees were the widow, Jane M. Camp, one son, Walter A. Camp, and three daughters, Annie C. Field, Hattie C. Brantley, and Sarah A. Camp, all of whom had attained their majority. Special legacies were left to the son and each of the daughters, but the greater part of the estate was left unconditionally to the widow, who had also a separate estate. Certain questions arose, owing to dissatisfaction upon the part of some of the children as to the disposition of the testator’s property, which were likely to provoke a contest over the probate of the will. In an effort to satisfy all, a parol agreement was entered into between the widow and children, whereby the widow was to execute a deed by which she should secure to herself all the property bequeathed to her by the terms of the will, and also her other separate estate, during her natural life, and at her death to be equally divided among the children. She stood ready to execute such deed for some time, but it was never prepared or executed. In addition to this parol agreement, the four children entered into another among themselves, which was reduced to writing and signed by them, as follows: “We, the children of Mrs. Jane M. Camp, promise to use no influence with her to make a will or deed or dispose of in any way property during the next three years. Any papers made in that time will not be recognized by us, and shall be null and void; and on the expiration of three years, if any papers are drawn, it must be with the knowledge and consent of her four children, or the same will be null and void. October 1st, 1907.” After these agreements were made the will was probated without further question, and money was paid out to the various devisees in accordance with its terms, though the estate was not finally wound up. On June 11, 1911, Jane M. Camp died, having in the meantime executed a will. John T. Brantley and Sarah A. Camp were nominated executors. The will was admitted to probate in common form on July 4, 1911; and on August 10, 1911, application was made for probate in solemn form. A caveat was filed by Annie C. Field. The case was tried, and, after judgment, setting up the will, carried by writ of error to the Supreme Court, where the judgment of the trial court was affirmed. 139 Ga. 437 (77 S. E. 5S9). Thereafter, on December 1, 1913, Annie C. Field instituted the present action against the executors of the will of George H. Camp, the executors of the will of Jane M. Camp, her brother, Walter A. Camp, and her two sisters, Hattie C. Brantley and Sarah A. Camp. The petition sought relief against each set of executors in their representative capacities under the two wills, and against' the individuals under the above-mentioned agreements. The character of the relief sought against the several defendants is stated in the opinion, infra. Each of the defendants, except Bichard H. Field, executor, demurred on the general grounds, and on special grounds among which were the following: (a) In so far as relief was sought against the estate of Jane M. Camp, the action was premature, (b) There was a misjoinder of parties, and the action was multifarious, (c) Certain allegations in the first and sixth paragraphs of the petition were irrelevant. These grounds of demurrer were sustained, but all of the other grounds were overruled. The plaintiff excepted. The other material facts appear in the opinion.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. April 17, 1914.</p>

<p>Probate of will. Before Judge Wright. Walker superior court. June 15, 1914.</p>

<p>Probate of will. Before Judge Park. Jasper superior court. July 13, 1914.</p>

<p>Exceptions to auditor’s report. Before Judge Hawkins. Laurens superior court. May 5, 1914.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. January 87, 1914.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. May 23, 1914.</p>

<p>Probate of will. Before Judge Rawlings. Washington superior court. July 30, 1914.</p>

Equitable petition. Before Judge Hammond. Richmond superior court. May 26, 1914.

Equitable petition. Before Judge Hammond. Burke superior court. May 2, 1914. In July, 1910, S. Schwarzweiss instituted an equitable proceeding in the superior court of Burke county, to enjoin numerous suits pending in the city court of Waynesboro, and to consolidate the suits to be tried as one suit in the superior court.

<p>Under the evidence in the case it was not error to direct a verdict for the plaintiff.</p>

<p>Action upon contract. Before Judge Walker. Wilkes superior court. May 19, 1914.</p>

<p>Action for damages. Before Judge Walker. Warren superior court. June 24, 1914.</p>

<p>1. Tlie evidence authorized an instruction that flight may be considered as a circumstance in inferring the guilt of the accused.</p> <p>2. The decedent was killed with a gun discharged while in the hands of the accused. The accused in his statement admitted that he held the gun when it was discharged, but claimed that it was accidentally discharged. Under such circumstances a new trial is not required because the court charged: “If you do not believe that the defendant is guilty, or if you have a reasonable doubt in your minds as to his guilt, and if you believe it was an accidental homicide, then it would be your duty to acquit the defendant,” on the ground that an- acquittal could result only from a concurrence of a reasonable doubt as to the prisoner’s guilt and the belief that the homicide was accidental.</p> <p>3. A witness for the State, in the course of his testimony, said that the killing “was on account of Sims’s [the accused’s] wife.” On objection made to this expression the court said to the witness, “State the facts; it is for the jury to decide.” Error is assigned, because the response of -the court did- not amount to a ruling, but only to a direction to the witness how to answer the question. The motive for the alleged crime was pertinent to the issue, and the statement of the court was a ruling that such motive could be established only by facts, and not by the conclusion of the witness. If counsel desired a more specific statement, he should have requested it at the time.</p> <p>4. The accused was arrested in another State. The officer in whose custody he was, testified that after the arrest was made he objected to being carried back to the venue of the alleged crime, and, among other things, said: “There is one thing; you can not carry me unless I sign something.” On motion to exclude this testimony the court inquired of the solicitor-general its relevancy. The solicitor-general replied that the purpose was to show the prisoner’s disinclination to return. Whereupon the court remarked: “He had a right to refuse to come. It is not a matter to be used against him, if he had a legal right.” Error is assigned, because the observation of the court did not amount to a ruling on the admissibility of the testimony, and because it contained an expression of opinion as to its force and effect. A new trial is not required because of this assignment of error.</p> <p>5. Other assignments are without merit, and the evidence authorized the verdict.</p>

<p>Complaint. Before Judge Reid. Newton superior court. January 7, 1914.</p>

<p>Trover. Before Judge Fite. Catoosa superior court. August 6, 1914.</p>

Injunction. Before Judge Charlton. Chatham superior court. December 12, 1914. The Central of Georgia Railway Company was proceeding to make certain changes in its track at a point between Lincoln and Abercorn Streets in the City of Savannah. The changes contemplated the substitution of a higher and heavier rail, and the paving between the rails and two feet on each side thereof with granite blocks.

<p>Affidavit of illegality of execution. Before Judge Mathews. Bibb superior court. February 28, 1914.</p>

<p>Claim. Before Judge Sheppard. Tattnall superior court. February 14, 1914.</p>

<p>Affidavit of illegality of execution. Before Judge Mathews. Bibb superior court. May 6, 1914.</p>

<p>Equitable petition. Before Judge Gilbert. Bibb superior court. March 16, 1914.</p>

<p>Complaint. Before Judge Mathews. Crawford superior court. March 16, 1914.</p>

Claim. Before Judge Mathews. Bibb superior court. May 26, 1914. On June 7, 1875, a fi. fa. was levied on land. On its face it was issued from the superior court of Bibb county, and based on a judgment absolute rendered May 22, 1875, in a suit to foreclose a mortgage on the land.

<p>Action for damages. Before Judge Walker. Wilkes superior court. July 1, 1914.</p>

<p>Action for damages. Before Judge Ellis.. Fulton superior court. June 26, 1914.</p>

<p>Complaint. Before Judge Ellis. Fulton superior court. August 12, 1914.</p>

<p>Receivership. Before Judge Pendleton. Fulton superior court. December 29, Í914.</p>

<p>Motion to arrest judgment. Before Judge Hammond. Bichmond superior court. February, 19, 1914.</p>

<p>Claim. Before Judge Charlton. Chatham superior court. March 23, 1914.</p>

<p>Petition for injunction; from Jenkins superior court.</p>

<p>Attachment. Before Judge Charlton. Chatham superior court. August 25, 1914.</p>

<p>Complaint for land. Before Judge Sheppard. Tattnall superior court. May 23, 1914.</p>

<p>1. It oan not be said that the verdict was entirely without evidence to support it.</p> <p>2. Where the judge in other portions of his charge had correctly instructed the jury as to the degree of diligence which the defendant- was bound under the law to observe, the mere fact that he gave them the definition both of ordinary diligence and extraordinary diligence is not ground for the grant of a new trial.</p> <p>3. The plaintiff having testified: “I am well known on Division Street [the street on which she lived]; every one out there knows me, even the little children,” it was not error to refuse to rule out this evidence on the ground that it was a mere conclusion of the witness.</p> <p>4. In the absence of a timely written request, the failure of the court to charge upon the subject of the burden of proof and the preponderance of evidence is not ground for the grant of a new trial. Small v. Williams, 87 Ga. 681 (13 S. E. 589).</p> <p>5. There was no error in failing to instruct the jury in the language of the written request to charge, set out in the last ground of the motion for a new trial.</p>

<p>Action for damages. Before Judge Mathews. Bibb superior court. July 2, 1914.</p>

<p>Temporary alimony. Before Judge Mathews. Bibb superior court. November 21, 1914.</p>

<p>Equitable petition. Before Judge Park. Baldwin superior court. May 23, 1914.</p>

<p>Complaint. Before Judge Beid. DeKalb superior court. August 31, 1914,</p>

<p>Equitable petition. Before Judge Walker. Washington superior court. March 6, 1914.</p>

<p>Equitable petition. Before Judge Rawlings. Toombs superior court. May 27, 1914.</p>

<p>Trover. Before Judge Hammond. Columbia superior court. February SO, 1914.</p>

<p>Action upon foreign judgment. Before Judge Charlton. Chat-ham superior court. June 30, 1914.</p>

<p>1. Where the officials of a clearing-house, an unincorporated association of chartered banks, formed for the purpose of facilitating the interchange of business and of making out-of-town collections and collections on each other, sends checks belonging to some or all of the component banks to a bank, which is the drawee of the checks, for collection and remittance less current exchange, and the collecting bank undertakes to remit the net amount of such collection by check in favor of the clearing-house, which cheek is dishonored, the component banks of the clearing-house may jointly maintain against the collecting bank an action on the dishonored check. The rule is not varied because the collecting bank is not an incorporated bank but is a partnership engaged in the business of banking, the action being against the partnership.</p> <p>2. In a suit by the component banks of a clearing-house association, the manager and cashier of such association are not necessary or proper parties, and should be stricken as plaintiffs.</p> <p>3. Where the dishonored check declared on is attached to the petition and alleged to have been made by the defendants, and such cheek purports to have been signed by an individual as cashier, the authority of the cashier to make the cheek is sufficiently alleged.</p> <p>4. A petition in which the plaintiff declares against certain parties engaged in the banking business, as partners, is not open to special demurrer on the ground that it is not affirmatively alleged that these individuals constitute all the partners engaged in the business. -</p> <p>5. A plea to the effect that if defendants were partners engaged in a banking business, as alleged by the plaintiffs, then certain other persons were also interested in the same business, and that the action should be abated for failure to join them as defendants, was properly stricken on demurrer.</p> <p>6. The other special demurrers are without merit.</p>

<p>Action for damages. Before Judge Daniel. Spalding superior court. June 1, 1914.</p>

<p>1. The question raised as to the disqualification of certain jurors because of relationship to plaintiffs in other eases against the same defendant is controlled by Central Georgia Power Co. v. Nolen, 143 Ga. 776 (85 S. E. 945).</p> <p>2. There was no evidence authorizing a charge to the effect that a release from damages, contained in a deed from the plaintiff to the defendant, did not release the latter from damages arising from criminal' negligence.</p> <p>(a) The charge which left to the jury to determine whether the damages involved were reasonably in the contemplation of the parties when the conveyance and release were executed by the plaintiff to the defendant was not altogether appropriate or adapted to the present case.</p> <p>3. Prior to the construction of its dam or reservoir, a hydroelectric company, having the right of eminent domain, obtained from the owners of certain lots a deed to portions thereof, for the purpose of making a reservoir and backing water by means of its dam. In the deed, after describing the property conveyed, and referring to the easements, rights, members, and appurtenances thereunto belonging, appeared the following words: “The said party of the second part, its successors and assigns, being hereby released and discharged by the said party of the first part, their heirs, personal representatives, and assigns, from any and all action's and rights of action, rights to or claims for damages of any nature, resulting from the construction, maintenance, or operation of said dam or power-plant and the consequent changes in the height of the water.” Held, that such conveyance released the defendant from all damages resulting from the proper and non-negligent construction, maintenance, or operation of the dam or power-plant; but did not operate as a release of damages resulting from a negligent construction and maintenance thereof.</p>

<p>Action for damages. Before Judge Reid. Newton superior court. July 29, 1914.</p>

<p>Under the evidence in this case the question of negligence of the defendant and diligence of the plaintiff should have been submitted to the jury under proper instructions; and it was error to grant a nonsuit.</p> <p>Eish, C. J., concurring specially. 1. The petition did not set forth a cause of action, and the court should not have overruled the general demurrer. The alleged negligence of the railway company, in failing to stop its train at the plaintiff’s destination a sufficient length of time, was not the proximate cause of the injury.</p> <p>2. Although the defendant in error excepted pendente lite to the overruling of its general demurrer to the petition, it filed no cross-bill of exceptions, and the ruling on the demurrer must be now treated by this court as a final adjudication that the petition did set out a cause of action; and as the evidence introduced on the trial by the plaintiff was sufficient to prove every allegation in the petition, the court erred in granting a nonsuit.</p>

<p>Equitable petition. Before Judge Hammond. Jenkins superior court. March 10, 1914. ' ,</p>

<p>Complaint. Before Judge Mathews. Bibb superior court. September 5, 1914.</p>

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

<p>Hart superior Complaint for land. Before Judge Meadow, court. July 24, 1914.</p>

<p>1. In the administration of county affairs county commissioners are vested by law with a broad discretion, and the reviewing power of a judge of the superior court should be exercised with caution, and no interference had unless it is clear and manifest that the county authorities are abusing the discretion vested in them by law. In the instant case such abuse of discretion by them was not made to appear, and the court erred in enjoining the erection of the court-house as proposed by the county commissioners.</p> <p>2. In order for one house to be used for comparison with another for the purpose of illustrating its comfortableness or uncomfortableness on account of the heat and glare of the sun, the conditions must be substantially similar.</p>

Attachment for contempt. Before Judge Fite. Murray superior court. September 11, 1915. Six persons, as citizens and taxpayers of Murray county, filed their equitable petition against D. B. Dunn, T. M. Hemphill, and J. A. McGhee, as members of the board of commissioners of roads and revenues of that county, and J. M. Sellers, clerk of the board.

<p>Indictment for murder. Before Judge Gilbert. Taylor superior court. May 3, 1915.</p>

<p>Indictment for murder. Before Judge Charlton. Chatham superior court. May 25, 1915.</p>

<p>Indictment for murder. Before Judge Meadow. Oglethorpe superior court. May 24, 1915.</p>

<p>Action for damages. Before Judge Brand. Clarke superior court. January 14, 1915.</p>

<p>Action for damages. Before Judge Brand. Clarke superior court. January 9, 1915.</p>

<p>Petition for injunction. Before Judge Thomas. Colquitt superior court. May 13, 1915.</p>

<p>Petition for injunction. Before Judge Hammond. Burke superior court. May 5, 1915.</p>

<p>Complaint. Before Judge Meadow. Madison superior court. September 10, 1914.</p>

<p>Affidavit of illegality of execution. Before Judge Meadow. Elbert superior court. October 3, 1914.</p>

Complaint. Before Judge Jones. Banks superior court. September 21, 1914. The National Bank of Athens brought suit against the Baldwin State Bank for the sum of $750, besides interest, on a certain draft or bill of exchange, drawn by the cashier of the Baldwin State Bank on the Fourth National Bank of Atlanta, the draft and indorsements thereon being as follows: “Baldwin State Bank. No. 2714. Baldwin, Ga., Aug. 6, 1912. Pay to the order of Webb & Crawford Co. $750.00.

<p>Money rule. Before Judge Brand. Gwinnett superior court. September 7, 1914.</p>

<p>Equitable petition. Before Judge Brand. Walton superior court. November 9,1914.</p>

<p>Claim. Before Judge Brand. Jackson superior court. October 3,. 1914.</p>

<p>Complaint. Before Judge Jones. Banks superior court. November 21, 1914.</p>

<p>Equitable petition. Before Judge Brand. Jackson superior court. January 4, 1915.</p>

<p>Complaint. Before Judge Jones. Banks superior court. December 12, 1914.</p>

<p>Divorce and alimony. Before Judge Jones. Union superior court. April 24, 1915.</p>

<p>Claim. Before Judge Patterson. Milton superior court. August 18, 1914.</p>

<p>Injunction. Before Judge Patterson. Forsyth superior court. April 17, 1915.</p>

<p>1. In her suit for alimony the wife alleged cruel treatment on the part of her husband, and threatened violence to her by her husband’s son-in-law, done with her husband’s approval, and designed to cause the wife to leave her husband’s home; and that the husband had divested himself of all of his property by fraudulently transferring it to his daughter, and was aided therein by his son-in-law. The husband, his daughter, and his son-in-law were made defendants, and relief against them, by cancellation of the alleged property transfers and for injunction against its alienation or incumbrance, was prayed. All the defendants answered, and in his answer the son-in-law denied all the allegations of threatened violence, and alleged that to his knowledge the property had been transferred prior to the date of the plaintiff’s marriage. Held, that the acts and sayings of the son-in-law, to which objection was made, tended to disprove his answer and to support the plaintiff’s allegations, and were competent evidence.</p> <p>2. The judge did not abuse his discretion in allowing temporary alimony and counsel fees, and preserving the status of the property, under the terms of the order.</p>

<p>If a will be properly executed by a person having testamentary capacity, it is no ground for refusing probate of it that a limitation on a devise therein to a particular person may be void.</p>

<p>Petition for injunction. Before Judge Littlejohn. Sumter superior court. March 1%, 1915.</p>

<p>Petition for injunction. Before Judge Cox. Decatur superior court. May 20, 1915.</p>

<p>Petition for injunction! Before Judge Littlejohn. Dooly superior court. April 6, 1915.</p>

<p>Under the uneontradicted evidence in this case, it was error to grant an interlocutory injunction.</p> <p>(a) The evidence showed no trust for the benefit of the plaintiffs in the land involved in the controversy.</p>

<p>Petition for injunction; from Berrien superior court.</p>

<p>Claim. Before Judge Sheppard. Tattnall superior court! November 30, 1914.</p>

<p>Under conflicting evidence the judge did not abuse his discretion in refusing an injunction.</p>

<p>Injunction and receivership. Before Judge Kent. Evans superior court. May 28, 1915.</p>

<p>Complaint. Before Judge Jones. Banks superior court. December 23, 1914.</p>

<p>Ejectment. Before Judge George. Wilcox superior court. October 19, 1914.</p>

<p>1. There is no conflict in the decisions of this court to the effect that a power to execute an instrument under seal must be conferred by an instrument under seal (Neely & Go. v. Stevens, 138 Ga. 305, 75 S. E. 159) and the decision in Harris v. Woodard, 142 Ga. 297 (82 S. E. 902), to the effect that under the facts of the case, when, in pursuance of an order requiring the filing of a bond as a condition of the grant or continuance of an injunction, a bond was filed purporting to be signed by the principal through his attorney of record, and, with knowledge of the fact, a status was thus obtained, and the litigation proceeded on that basis, and the adverse party was enjoined from enforcing his rights, in a subsequent suit on the bond the principal and surety were bound by it.</p> <p>Petition for injunction. Before Judge Bell. Houston superior court. December 19, 1914.</p>

<p>Indictment for rape. Before Judge Littlejohn. Macon superior court. June 28,1915;</p>

<p>Indictment for murder. Before Judge Jones. Eabun superior court. September 9, 1915.</p>

<p>Indictment for murder. Before Judge Freeman. Carroll superior court. June 22, 1915;</p>

<p>Indictment for murder. Before Judge Worrill. Bandorpn supe-rior court. July 10, 1915.</p>

<p>Validation of municipal bonds. Before Judge Fite. Bartow superior court. September 4, 1915.</p>

<p>Indictment for murder. Before Judge Cox. Mitchell superior court. April 2é, 1915.</p>

<p>The evidence being conflicting as to a material issue in the ease, the court erred, in directing a verdict for the defendant.</p>

<p>Money rule. Before Judge Fite. Whitfield superior court. October 16, 1914.</p>

<p>Indictment for murder.. Before Judge Highsmith. Glynn superior court. September 14, 1915.</p>

<p>Equitable petition. Before Judge Patterson. Forsyth superior court. August 26, 1914.</p>

<p>Partition. Before Judge Patterson. Forsyth superior court. August 27, 1914.</p>

<p>Action for damages. Before Judge Patterson. Cherokee superior court. September 26,1914.</p>

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

<p>Action for malicious prosecution. Before Judge Patterson. Milton superior court. October 9, 1914.</p>

<p>Action for damages. Before Judge Patterson. Pickens superior court. December 21, 1914.</p>

Equitable petition. Before Judge Edwards. Polk superior court. December 9, 1914. J. S. Brewster brought a petition against A. A. Camp, alleging as follows: W. A. Camp, being the owner of a, large plantation in Polk county, known as the John Hutchings farm, on February-24, 1890, conveyed it to his wife, Lillie M. Camp, by deed which was duly recorded on March 24, 1890.

<p>Action for damages. Before Judge Fite. Whitfield superior court. August 30, 1914. . '</p>

<p>Mortgage foreclosure. Before Judge George. Wilcox superior court. September 24, 1914.</p>

<p>1. When a statute confers the appointing power, and does riot expressly authorize self-appointment, the appointment of some other than self is always contemplated.</p> <p>(a) The charter of the Town of Adel (Acts 1900, p. 202) provides for the appointment of three citizens who are freeholders, by the town council, as tax-assessors. The town council appointed the tax-assessors from their own body. Such appointment was illegal.</p> <p>2. Though the general rule is recognized to be that a person who enters into an office and undertakes to perform the duties thereof by virtue of an appointment or election, though ineligible to the office, may be an officer de facto, so as to render his acts valid as to third persons, yet where the commission or record evidencing the appointment shows on its face that the appointment is without legal authorization, the appointee is not an officer de facto, so as to make his acts legal.</p>

<p>Petition for injunction. Before Judge Mathews. Bibb superior court. March 29, 1915.</p> <p>Guy Armstrong filed a petition against J. J. Cobb, Cecil Morgan, the Commercial National Bank, and the American National Bank, alleging: that he was fraudulently induced by Cobb and Morgan to contract for the purchase of 20 shares of the proposed increased capital stock of the Commercial National Bank, of which they were directors; that he gave his promissory note for $2,400 for the purchase-price of the shares, and by subsequent payments has reduced this sum to $1,500, for which he gave his note; that the stock which he contracted to purchase was worthless, and known to be such by the defendants who induced him to buy it; that, about two years after the contract of purchase was made, the assets of the Commercial National Bank were placed in the possession of the American National Bank as a liquidating agent; that the Commercial National Bank was insolvent at the time of the purchase of the stock by petitioner, and has ever since been insolvent; that the American National Bank knew, before it took over the affairs of the Commercial National Bank, that the note for $1,500, signed by the plaintiff and in the possession of that bank, was given for the purchase of the stock, and the American National Bank had full notice of all the defenses that might be set up against its payment, before it took over the assets of the Commercial National Bank; and that the American National Bank had instituted against petitioner a suit in the city court of Macon on the $1,500 note given for the purchase' of the shares in the Commercial National Bank. He prayed, that the suit be enjoined, and that the American National Bank be required to set up in this action whatever rights it may have in that suit, and that he have a judgment against the defendants, jointly and severally, for the money paid on account of the contract of purchase; and for discovery and for general relief.</p> <p>The defendants filed demurrers, general and special, and answered. The American National Bank averred its inability to admit or deny the alleged fraud charged against the Commercial National Bank and its directors in procuring the plaintiff to purchase stock in that hank, but required strict proof- of the same, and positively denied all knowledge of the fraud charged. It averred, that it took the note sued on, believing that the Commercial National Bank was solvent; that the note was transferred to it before maturity and without notice as to the consideration, or that the consideration had failed, or that there were any defenses of any kind whatsoever; that it is now the bona fide holder of the note; that it agreed to act as liquidating agent of the Commercial National Bank, but in addition thereto, before the affairs of the Commercial National Bank could be so liquidated, it was necessary for this defendant to assume the payment of large liabilities of the Commercial National Bank, including depositors therein; and that the Commercial National Bank, as collateral security for and on account of these liabilities, transferred and delivered to this defendant- the note sued on, and.which it has so held since that date.</p> <p>The demurrers came on to be heard on February 20, 1915. The court passed an order overruling the demurrers, and enjoining the American National Bank as prayed, reciting in the order that it was done upon the hearing of evidence. Subsequently, on April 10, 1915, the court passed an order which recited that no evidence had been introduced on the hearing for the grant of an injunction, modified the previous order by striking therefrom that portion granting the injunction, and fixed the hearing on the injunction for April 30, 1915. In the meantime, on April 17, 1915, the defendants presented and had certified a bill of exceptions to the judgment overruling the demurrers. At the hearing on April 30, the plaintiff moved to vacate the judgment assigning the cause for a hearing, and to stay the case until the Supreme Court had passed upon and determined the issues made by the bill of exceptions on the demurrers; which motion the court denied, and ordered the case to proceed. Exception is taken to this ruling. The case then proceeded to trial, and by consent of parties it was submitted to the court on the pleadings. Counsel for defendants made a motion to dismiss the restraining order, on the ground that the equity of the plaintiff’s bill had been sworn off by the answer of the defendants. The court then took the whole case under advisement, and rendered the following judgment:. “The above petition coming on to be heard upon the application for injunction by the plaintiff against the American National Bank, and the case being submitted without other evidence than the sworn petition and the verified answer of the American National Bank, it appeared from an inspection of the petition and answer: That the answer denies every allegation of the petition asserting that the defendant is not a bona fide holder for value of the note in question, without notice of the defense claimed by the petitioner, and denies that the defendant obtained the note after its maturity, as well as every allegation tending to throw any doubt as to the bona fides or legality of its possession of the note before its maturity, for full value, without any notice or knowledge as to its consideration, or any possible defense to the note. Upon this point the answer is very full and explicit. So far, then, as the plaintiff’s claim of right to enjoin the suit upon the note in the city court is predicated upon alleged notice of the consideration of the note, and fraudulent representations to procure the note, and want of good faith in obtaining the note, this claim is strongly negatived by the sworn answer; and it may be said that this alleged ground of the prayer for injunction is sworn off ■by the answer. Whether the bank is a bona fide holder without notice can be determined by evidence in the city court. If that court ascertains as a fact that the bank is a bona fide holder without notice, the defendant in that suit can set up no further defense. If the court determines that the bank is not a bona fide holder, the defendant would be able there to set up the same defense as he could assert against the original payee; but even if he could not set up there all the defenses available to him in a court of equity, this court can not presume that the bank will be unable to show in the city court what is shown here by the sworn answer, which swears off the essential equity which would authorize this court to interfere with the trial in the city court, to wit, the allegation that the bank is not a bona fide holder for value of the note. It is therefore considered and adjudged that the injunction prayed for is denied, and' that the restraining order heretofore granted herein be dissolved.” Exception is taken to this judgment.</p>

<p>Injunction and receiver. Before Judge Patterson. Gilmer superior court. May 22, 1915.</p>

<p>Action for damages. Before Judge Patterson. Cobb superior court. September 26, 1915.</p>

<p>Action for damages. Before Judge Patterson. Pickens superior court. November 11, 1914.</p>

<p>Action for damages. Before Judge Patterson. Pickens superior court. December 22, 1914.</p>

<p>1. “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the same, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff’s attorney is the offender.”</p> <p>2. A charge to the jury which is not authorized by the evidence and which is calculated to mislead and confuse the jury requires a new trial.</p>

<p>1. In a suit to recover damages for injuries alleged to have resulted from the negligent “setting” of a broken arm by a physician and surgeon, it was error to overrule a ground of demurrer which sought to have a photograph “of the present condition” of the injured member stricken and removed from the petition.</p> <p>2. The amendments to the petition, as set out in the 2d division of the opinion, are not open to the objection that they set out a new cause of action. They merely amplify the original cause of action as set out in the petition.</p> <p>3. The Civil Code, § 4427, declares: “A person professing to practice surgery or the administering of medicine for a compensation must bring to the' exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill will he a tort for 'which a recovery may be had.” This lays down a terse rule for determining under what circumstances "a physician is liable for injury resulting to a patient.</p> <p>(а) The charge which was approved in Akridge v. Noble, 114 Go,. 949 (41 S. E. 78), as against certain objections thereto, was not identical with the charge complained of in the 4th ground Of the amended motion for a new trial; nor should a charge of that character be given where inapplicable.</p> <p>(б) While expressions used in an opinion by a Justice of the Supreme Court in discussing a case under review may be entirely proper for that purpose, 'it' does not follow as .a matter of course that they are apt for use in a charge to a jury in another ease. They may not apply to the facts of the second case, or they may be argumentative in character, or otherwise not suited to be given as instructions in a different case, however correct they may'have been as used in an opinion.</p> <p>(c) Some of thb''charges complained of, in regard to the skill and diligence required.of one holding himself out to the public for the practice of surgery, were not unobjectionable in the mode of expression employed, or. in being accurately adjusted to the evidence in the case then being tried. 1</p> <p>4. It is reversible error to charge the jury that “Where witnesses agree as to the material facts testified to by them, slight discrepancies as to collateral, attendant facts affords no sufficient legal reason for discrediting their testimony.”</p> <p>5. Under the allegations of the petition and the evidence introduced on the trial of thé‘ case, the court was authorized to charge the jury the rule as to estimating damages on account of pain and suffering.</p> <p>6. On the trial Of a case involving malpractice of medicine and surgery, a photograph of the wound alleged to have been caused by the malpractice, which has been proved to be a correct photograph, is admissible in evidence as tending to show the details and extent of the injury, in connection with other evidence tending to show that the condition of the injured member °at the time when the. photograph was taken resulted from the alleged tort.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. (September 15, 1914.</p>

<p>Equitable petition.- Before Judge Wright. Floyd. superior court. July 20, 1914.</p>

<p>1. A witness is incompetent to testify that others wrote to him (the letters being lost) that a particular person was in possession of certain property at a stated time, and that the record title then stood in the possessor’s name. Such testimony is hearsay.</p> <p>2 A general assignment of error upon an excerpt from the judge’s instruction brings under review only the abstract correctness of the legal principle therein contained, and not its applicability to the-facts of the case. The legal principle enunciated in the excerpt complained of is that embodied in the Civil Code (1910), § 3224, and was not incorrectly stated.</p> <p>3. The evidence was sufficient to support the verdict.</p>

<p>. Money rule. Before Judge Brand. Fayette superior corrrt. December 5, 1914.</p>

Action for damages. Before Judge George. Crisp superior court. October 31, 1914. G. E. Griffin filed a suit against Mrs. A. E. Russell, to recover damages, alleging, among other things, as follows: The defendant is the owner of an automobile, which she allows her minor son to run and operate.

<p>1. Where a temporary administrator for an estate was appointed, and applied for appointment as permanent administrator, but a caveat was filed and another was appointed, and an appeal was entered from the judgment, the temporary administrator remained such, and it was not competent for the ordinary by ex parte order, on a petition presented, to appoint an administrator pendente lite in lieu of the temporary administrator.</p> <p>2. Where real and personal property were in possession of one claiming the right to hold it as an administrator pendente lite, a previously appointed temporary administrator could not oust the person so in possession and obtain possession himself, by means of an interlocutory injunction.</p>

<p>Petition for injunction and receivership. Before Judge Cox. Decatur superior court. November 28, 1914.</p>

<p>Equitable petition.' Before Judge Larsen. Johnson superior court. October 22, 1914.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. December 10,1914.</p>

<p>Petition for injunction. Before Judge Sheppard. Effingham superior court. April 20, 1915.</p>

<p>Award of attorney’s fees. Before Judge Sheppard. Tattnall superior court. June 4, 1915.</p>

<p>Equitable petition. Before Judge Mathews. Bibb'- superior court. December 5, 1914.</p> <p>Isaac Block brought a petition against Armour & Company, alleging, among other things, as follows: On April 15, 1909, the Massee-Felton Lumber Company leased to the National Packing Company a lot in the city of Macon for a' term of five years, with the privilege of renewal. By the terms of the written contract" the lessor agreed to immediately commence, and complete as soon as possible, a two-story brick building upon the lot, having certain dimensions, with a stable in the rear, and to construct a fence around the rear portion of the premises. “The two-story brick building shall have constructed therein 'by lessor a cold-storage room about nineteen (19) feet square, with one door in same, a hand-power elevator, an office about nineteen (19) feet square partitioned off from floor to ceiling in the front part of the building, two toilet-rooms and wash-sink and staircase, all in such location and in a manner convenient and satisfactory to lessee’s representative. . . It is mutually agreed that any fixtures, additions, or improvements made, added to or installed in said demised premises by lessee during its occupancy thereof, shall be and remain its property, and it shall have the right to remove same at any time, provided any damage occasioned by such removal shall be repaired by the lessee at its expense.” The plaintiff has become the successor of the lessor through regular assignments, and has also become the owner of the leased premises. Armour & Company succeeded to the National Packing Company, the original lessee, by assignment of the lease. The lessor complied fully with all obligations and conditions imposed upon ■ it by the contract. The 13th, 14th, 15th, and 19th paragraphs of the petition were:</p> <p>“13. That the occupancy of said demised premises and the term thereof on the part of the said National Packing Company, lessee, commenced on the first day of December, 1909, after all of said building, including the work enumerated in said specifications, was completed, and upon the completion aforesaid the same was accepted by said lessee in said lease in accordance with the conditions therein named.</p> <p>“14. That during the course of construction of said building, etc., described in said lease, and before the completion, acceptance, and occupancy of the same on the part of the lessee named therein, a certain cooling-room, smoke-room, elevator, refrigerator, cold-storage ice-boxes with insulation and other fixtures, not'being trade fixtures but attached to and forming a part of the realty, were constructed as part of the said demised premises.</p> <p>“15. That the main building and the realty thereof now consist of the above-named parts and parcels and articles in addition to other parts and parcels going to make up the whole of the said demised premises, and that none of the above-described parts as set forth in paragraph fourteen herein or any other part or parts or additions or fixtures now located upon or forming a part of said demised premises were erected or have been installed or added to the said building described in said lease since' the date of the occupancy of the same in accordance with said lease either on the part of the National Packing Company or the said Armour & Cojnpany, the latter now in possession of the said demised premises.</p> <p>“19. That your petitioner has been informed by the present manager of the said Armour & Company, which is now the assignee of the National Packing Company under said lease, that the said Armour & Company, contemplate destroying and are in fact making arrangements to destroy or tear down or remove from said demised premises the said cooling-room, smoke-room, elevator, cold-storage ice-boxes with their insulation and other parts of the said building and parts of the realty, none of which are trade fixtures and all of which were placed, built, constructed and erected before the completion, acceptance, and occupancy of said demised premises by said National Packing Company, lessee and transferor, and said Armour & Company transferees.”</p> <p>The prayers were for injunction, process, and general relief. The court granted a rule nisi and temporary restraining order. Subsequently an order was granted rescinding the restraining order, provided Armour & Company would execute and file a bond conditioned to pay to the plaintiff whatever amount might be found, upon the final trial, to be the damages suffered by him by reason of the removal from the rented premises of the property described in the petition and alleged to be fixtures and parts of the premises, and such other property and fixtures as were claimed by the defendant, provided it should be found upon the trial that such fixtures and property had been illegally removed. The bond was given by the defendant.</p> <p>The defendant filed a general demurrer to the petition, which • was overruled, and it excepted.</p>

<p>Indictment for rape. Befpre Judge Graham. Wheeler superior court. September 8, 1915.</p>

<p>1. Where on the trial of a claim case the wife of the defendant in fi. fa., whose trustee in bankruptcy was the claimant, was permitted to testify, over objection, that a certain lot of land (on which she claimed that she had borrowed money and that her money had been used in buying the stock of goods levied on) had recently been sold by the trustee in bankruptcy, the admissibility of such testimony was not open to the sole objection that there was better evidence of the sale.</p> <p>2. The reports of mercantile agencies, offered for the purpose of proving the amount of property owned by a person, are not admissible in evidence to prove the value of such property; nor does their- competency in this case appear for the purpose of showing “notice, lack of notice, or motive.”</p> <p>3. Where on the trial of a case the court propounded certain questions to a witness, which examination, it is insisted, was 'so conducted as to prejudice the rights of the plaintiff.in error and elicited certain hearsay testimony, this action on the part of the court will not cause a reversal in the absence of any objection having been raised thereto at the time.</p> <p>4. Under the conflicting testimony as to issues material to the case, the court should have submitted them to the jury under proper instructions, and erred in directing a verdict for the claimant.</p>

<p>Action upon insurance policy. Before Judge Fite. Whitfield superior court. December 10, 1914.</p>

<p>Complaint for land. Before Judge Wright. Chattooga superior court. October 15,1914.</p>

<p>Action for alimony. Before Judge Wright. Floyd superior court. October 23, 1914.</p>

<p>Action for damages. Before Judge Edwards. Polk superior court. December 31, 1914.</p> <p>The plaintiffs, as heirs at law of Mrs. S. J. Dever, filed a petition against the Seaboard Air-Line Railway, to recover damages flowing from the construction of the road-bed in front of the plaintiffs’ property, alleging as follows: Mrs. Dever owned a tract of land containing about 320 acres, and conveyed to the East & West Railway Company, of' Alabama a right of way on the edge of her property. Upon this right of way the railway company constructed an embankment from four to six feet high and fifty feet wide, upon which its tracks were laid. There were two crossings located on the right of way, which afforded access from Mrs. Dever’s home to the market town, and these crossings were kept up and maintained by the East & West Railway Company for a period of about 15 years. In the year 1903 the Seaboard Air-Line Railway absorbed the East & West Railway, and purchased from Mrs. Dever an additional right of way for the purpose of constructing sidetracks and extending the switching-yards of the railway company over the lands so purchased. She conveyed the premises therein described to the railway company in fee simple, together with “the right to change the course of streams running through said lands, either on or off the right-of-way herein conveyed, by cutting canals, ditches, or otherwise.” At the time she executed this deed it was verbally agreed that both of the crossings should be maintained in first-class condition, that the road-bed should be wider but not higher, and that the accessibility of the grantor’s farm and premises to the city of Rockmart would not be impaired or diminished. Mrs. Déver died in 1904; leaving the plaintiffs as her sole heirs at law. In violation of its agreement the Seaboard Air-Line Railway constructed a road-bed upon the premises so purchased, at an average height of about eleven feet, and completely closed up the upper crossing, and constructed a very narrow and dangerous approach to the lower crossing, which had been maintained in good condition by the Bast & West Railway Company in front of the residence of petitioners. Since the completion of the road-bed different officials of the defendant railway company have promised petitioners repeatedly that the crossing would be remodeled, and the plaintiffs fully compensated and satisfied on account of' the construction of the road-bed in violation of the parol contract. The road-bed was not finished for several years after the signing of the deed, and the crossings had never been completed and finished as contracted and agreed upon at the time the deed was signed. The railroad embankment of eleven feet obscures the view from the plaintiffs’ residence, and destroys the beauty and symmetry of their home, and practically destroys its value as a residence. The construction and maintenance of the road-bed is a continuing nuisance, and has depreciated the market value of the plaintiffs’ farm in the sum of $5,000; and it will remain a nuisance until the contract between petitioners’ ancestor and the defendant company is complied with. Wherefore they pray judgment for damages. The petition was amended by alleging that the railroad company so constructed its embankment as to pond the surface-water, and cause it to back upon the plaintiffs’ premises, and to destroy the crossings affording egress and ingress from the farm to the market town; in respect to which it was alleged that the “defendant not only contracted to properly drain the water from their premises as it was drained before the building of said railroad, and to construct safe and suitable private ways from their dwelling over and across said railroad, but, independent of said contract, defendant is bound to properly drain said water and properly construct and equip said private way so that the same can he safely and conveniently used, and, having failed to do so, is liable to petitioners for the damages set forth in their original petition.” The defendant demurred generally, and further demurred to the amendment on the grounds that the matters therein alleged were-not germane to the original petition, and that the attempt was to amend a cause of action arising ex contractu by adding thereto one arising ex delicto. The court sustained the demurrers and dismissed the petition.</p>

<p>Equitable petition. Before Judge Gilbert. Muscogee superior court. December 21, 1914.</p>

<p>Equitable petition. Before Judge Park. Hancock superior court. September 30, 1914.</p>

<p>Equitable petition. Before Judge George. Wilcox superior court. October 19, 1914.</p> <p>Certain persons, as children of a deceased woman, filed a petition against her administrator, seeking, among other things, to enjoin the defendant from selling certain land. They claimed under a deed which conveyed the land to their mother “and the heirs of her body after her death.” The defendant claimed that the land belonged in fee simple to the intestate. By amendment to his answer he alleged, that the father of the intestate gave it to her, put her in possession, and made her a fee-simple deed to it some years before the execution of the deed under which the plaintiffs claimed as remaindermen; and that the intestate took possession and made valuable improvements upon the land. The last-mentioned deed was not produced or recorded, but the claim was that it had been lost. A verdict was found in favor of the plaintiffs. The defendant’s motion for a new trial was overruled, and he excepted. Among other grounds of the motion was an assignment of error upon the court’s charge to the jury, to the effect that if the owner of the land executed a deed conveying it in fee simple to his daughter, which was accepted by her, but if subsequently he made another deed by which he limited the interest of the donee to a life-estate only, with remainder over, and this latter deed was made with the knowledge and consent of the donee in the first deed, and was delivered to her and accepted by her, then she, or her administrator, would be -estopped from claiming to hold anything more than a life-estate.</p>

<p>Claim. Before Judge George. Crisp superior court. October 17, 1914.</p>

<p>Garnishment. Before Judge George. Crisp superior court. November, 20, 1914.</p> <p>A summons of garnishment issued, directed tp the Seaboard AirLine Railway. The sheriff made an entry that he had served the garnishee by personally serving “R. L. Luff man, the agent of said garnishee, who is in charge of its office in the city of Cordele, Crisp county.” The company traversed the entry. On the trial the evidence tended to show the following, among other facts: Four railroads entered Cordele and had a union station. One of these was the garnishee. Another, the Georgia Southern and Florida Railway Company, had general control of the station. Luffman Was the ticket-agent for all of the roads at the union station. He kept separate accounts and sold all tickets at the station for. each of the roads, and reported to the Seaboard Air-Line Railway separately as to its ticket business. He testified, that he was in control, having the union station in charge”) as to the general the expenses of the office, including his salary, were prorated among the four companies; and that it was very largely like four offices being kept in one, so far as the transactions of the four roads were concerned. He reported to the Georgia Southern and Florida Railway Company (which another witness called the “board of control, having the union station in charge”) as to the general handling of the station, and all of the help was on the pay-roll of that company. He was not responsible to that company for any details, snch as selling tickets for the Seaboard Air-Line Railway. He signed all tickets sold for the latter company as its agent, and-was under its control with reference to any of the details of the passenger business in the city. The entire expenses of the union station, including the salary of Luffman, were first paid by the Georgia Southern and Florida Railway Company, and then prorated among the four companies. The freight business of the garnishee was kept separate from the passenger business, and the freight agent’s office was located in a different building. The company also had a commercial agency, with a separate office. No business was transacted at the union station except the selling of tickets, handling of baggage, and the administration of the union station for all of the roads. The court rejected certain evidence tending to show that one Stallings, the freight-agent, had charge of the office or business of the garnishee at Cordele, except the commercial office, and the sale of tickets and handling of its passenger traffic; also, that the property sought to be caught by the garnishment was certain household goods shipped by the defendant in the suit over the railroad of the garnishee, and that Stallings did not know of the garnishment until the freight had been delivered; also, that the plaintiff knew that Stallings was in Cordele at the time when the garnishment was shown to have been served. A verdict against the traverse was directed, and the garnishee excepted.</p>

<p>Action of ejectment; from Crisp superior court.</p>

<p>Injunction. Before Judge George. Ben Hill superior court. June 30, 1915. •</p>

<p>Equitable petition. Before J. G. Cranford, judge pro bac -vice. Echols superior court. September 15, 1914.</p>

<p>Action for damages. Before Judge Conyers. Glynn superior court. September 5, 1914.</p>

<p>A plea of set-off to a note traded after maturity can not be founded on any mutual demand that the defendant had at the commencement of the suit against the payee, but must he confined to the contract on which the plaintiff sues. There was no error in directing a verdict for the plaintiff.</p>

<p>Temporary alimony. Before Judge Ellis,.. Eulton superior court. March 1, 1915.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. Marcli 1915.</p>

<p>Petition for injunction. Before Judge Hardeman. Bulloch superior court. February 3, 1915.</p>

<p>Application for mandamus to require the presiding judge to sign a bill of exceptions without inserting therein a note, two pages in length, containing matter alleged to be irrelevant and not proper to be included in such bill of exceptions.</p>

Affidavit of illegality of execution. Before Judge Worrill. Miller superior court. October 30, 1914.

<p>Equitable petition. Before Judge Tbomas. Decatur superior court. November 10, 1914.</p>

<p>Affidavit of illegality of execution. Before Judge Cox. Calhoun superior court. December 11, 1914. ■</p>

Equitable petition. Before Judge Thomas. Tift superior court. October 17, 1914. The Tifton Guano Company filed a petition against Walter Ford and his wife, Mrs. Sibbie Ford, alleging, in substance as follows: Petitioner sold to Walter Ford guano to be used by him in furnishing two croppers on certain described land, and the guano was so used. Ford gave to petitioner a mortgage on the growing crops on this land.

<p>Complaint for land. Before Judge Thomas. Thomas superior court. October 23, 1914.</p>

<p>Appeal. Before Judge Thomas. Thomas superior court. October 21, 1914.</p>

Action for damages. Before Judge Bell. Fulton superior court. October IS, 1914. Error was assigned on a judgment sustaining a general demurrer to the petition, in an action by a pedestrian against a county for personal injuries received by falling into a drainway, the mouth of which was at the inner edge of a sidewalk which was constructed along a public road.

Forfeiture of recognizance.' Before Judge Thomas. Fulton superior court. December 17, 1914. A scire facias issued for the forfeiture of a criminal recognizance against L. Weinberg as principal, and W. F. Brandt, N. E. Keilsohn, and Charles E. Thompson as sureties. An entry of non est inventus was made • as to the principal, and the. sureties were served. Keilsohn alone filed an answer.

<p>Action upon insurance policy. Before Judge Bell. Fulton superior court. October 15, 1914.</p>

<p>Equitable petition. Before Judge Pendleton, Fulton superior court. January 6, 1915.</p> <p>The action was by D. J. Baker, receiver of E. Y. Crockett, against M. L. Thrower, to recover for a breach of warranty. Thrower conveyed'to Crockett a lot of land “for and in consideration of the sum of ninety-five hundred dollars ($9,500.00) in hand paid,” with a general warranty of title. The land was encumbered by a security deed for $3,500, executed by Thrower. Crockett procured an extension of this loan when it fell due. In a proceeding by Crockett’s creditors against him a receiver was appointed, who sold the land at receiver’s sale, and a vendee from the purchaser thereat paid off the encumbrance. The defendant introduced in evidence a note for $4,500, which had an indorsement of payment thereon by E. Y. Crockett. He offered to testify that he and Crockett, owning separate lots of land, agreed upon an exchange of them; “the agreement was that I was to accept his property at $14,000 and he was to accept my property at $13,000. In other words, I was to pay him $9,500 and he was to assume the loan of $3,500, and I gave him my note for $4,500, and the same has been paid. That $4,500 note was to cover the difference of $1,000 between the prices and the $3,500 due the Travelers Insurance Company. I did afterwards pay that note of $4,500. Mr. Crockett never at any time asked me to pay that debt to the Travelers Insurance Company. The agreement was that I was to take his place at $9,500 and give him a $4,500 note, and he was to pay the $3,500. He was to assume the loan of $3,500.” This testimony was excluded by the court, and a verdict was directed for the plaintiff for the full amount of the encumbrance paid off by the vendee from the purchaser at receiver’s sale. The defendant excepts.</p>

<p>1. A deed wherein the description of the property which it purports to convey is so vague and indefinite as to afford no means of identifying any particular tract of land is inoperative either as a conveyance of title or as color of title.</p> <p>2. The testimony examined, and held insufficient to make a prima facie cáse for the recovery of the land; and the grant of a nonsuit was proper.</p>

Equitable petition. Before Judge Hammond. Tattnall superior court. October 6, 1914. Z. Smith owned a tract of land which he conveyed, on November 4, 1908, to his son W. B. Smith, upon an alleged consideration of $2,200. On December 18, 1908, W. B. Smith conveyed the same land to Mrs. M. J. Smith, the mother of W. B. Smith and wife of Z. Smith, upon an alleged consideration of $2,300.

<p>Indictment for murder. Before Judge Cox. Mitchell superior court. August 7, 1915.</p>

<p>Indictment for murder. Before Judge Graham. Montgomery superior court. August 17, 1915.</p>

<p>Indictment for rape. Before Judge Searcy. Butts superior court. September 16, 1915.</p> <p>Gus Head'was tried under an indictment for rape.. The jury returned a verdict of guilty, and recommended him to the mercy of the court. The judge sentenced the accused to a term of three years in the State penitentiary. The defendant made a motion for new trial, and excepted to the judgment overruling the motion. The injured female was a girl eleven years of age, — a sister of the wife of the accused. Her father and mother were dead, and she had been living with the accused and his wife for three years. She had a sister fourteen years of age, who was also living with them. According to the testimony of the girl, the house of the accused was near a road, but remote from residences of other people. On a certain Tuesday afternoon, during the absence of her two sisters (they having gone to the mail-box about a mile away), the girl was at the house alone with a three-year-old child. The accused came up and attempted forcibly to have sexual intercourse with her. She succeeded by a ruse in causing him to desist. She then started off, calling for her sisters. The accused caught her and carried her to the stable, where he accomplished the rape. She resisted and cried, and never gave her consent. He told her that if she did not tell he would give her a fine dress, but if she told he would kill her. She was afraid of him, but said that she would tell. He then left and went to the residence of his sister, some distance away. The girl returned to the house. After about an hour her married sister returned, and she immediately informed.her of the occurrence. This was the first person she saw. The next morning the accused whipped the girl, and she left, going to the house of a neighbor. On Thursday morning she went to the house of another neighbor and there reported the occurrences to his wife. This woman was introduced as a witness, and testified that the girl came to her home at the time stated, and told her of the rape and whipping, exhibiting marks on her arm made by a switch. The girl’s other sister testified, that when she returned to the house on the afternoon of the rape, the girl was playing with the baby and appeared to have been crying, and, in the presence of her married sister, told her of the rape; and that on the morning after the rape the witness saw the accused whip the girl on the pretense that she had been “telling lies” on him. He also whipped the witness. All the witnesses testified that no examination was made of the girl’s person. The defendant did not introduce any evidence, but made a statement before the jury.. He denied the offense, but stated that on a certain Thursday he had whipped the girl about chopping cotton, and on the next ensuing Thursday he got his mule to plow and told his wife and the girls to go to work, and they refused, and on the same day he was charged with the offense of rape.</p>

Injunction. Before Judge Fite. Murray superior court. September 11, 1915. J. D. Harris and five other citizens and taxpayers of Murray county brought their petition against D. B. Dunn, T. M. Hemp-hill, and J. A. McGhee, composing the board of commissioners of roads and revenue of Murray County, and J. M. Sellers, clerk of the board, and alleged substantially as follows: The plaintiffs are concerned and have an interest in administering the affairs of the county.

<p>Action for damages. Before Judge Jones. Habersham superior court. December 15, 1914.</p>

<p>Action for damages. Before Judge Eite. Gordon superior court. August 12, 1914.</p>

<p>1. Where one signs an agreement to sell and deliver at a future date a certain number of bales of cotton at a specified price, and the agreement is not then signed by the purchaser, but the latter afterwards enters on the agreement in writing that he has received a specified amount of the cotton agreed to be delivered, and signs the entry so made, this amounts to an acceptance of the contract on the part of the purchaser, and the contract becomes binding on both parties.</p> <p>(а) And where the contract has been assigned in writing by the purchaser, it becomes enforceable-in the hands of the transferee against the maker.</p> <p>(б) In view of the above rulings, it is unnecessary to decide whether there was a parol acceptance of the contract by the parties seeking to enforce it.</p> <p>2. Where a contract for the sale of cotton contains a “request” by the seller that the purchaser, on failure to deliver the cotton, go into the market and buy the number of bales sold and charge the same to the account of the seller, “and, after selling the cotton at above-named price and crediting me with same, I agree to pay the difference,” such “request” rather confers on the purchaser the authority to purchase than binds him to do so.</p> <p>3. The verdict is supported by the evidence.</p>

Equitable petition. Before Judge Eite. Whitfield superior court. December 9, 1914. Mrs. B. ■ C. Dailey filed her petition alleging substantially as follows: Her husband, Horace Springfield, died leaving no indebtedness, and the plaintiff is his sole heir at law. This action is brought against B. W. Springfield, Bert Springfield, and John Bobertson, and is based upon a certain deed executed to her husband by B. W. Springfield.

<p>1. A common-law action can not be maintained at the instance of a citizen and taxpayer “for the use of” a municipal corporation against the mayor and commissioners of the corporation, to recover money collected as taxes from the plaintiff and other taxpayers, a portion of which is alleged to have been misappropriated by the officers of the municipality . in paying premiums on the official bonds of such officers.</p> <p>(a) The legal right to recover the money is in the corporation and not in the taxpayer, and the latter can not recover such money, even if misappropriated, in a common-law action brought for that purpose.</p> <p>(5) If the plaintiff had no right to bring such suit, he could not by adding “for the use of” the corporation confer the right on himself to bring it.</p> <p>2. A demurrer filed to a petition brought for the purpose specified in the foregoing note, on the ground that it set out no cause of action, should have been sustained, and the court erred in not so holding.</p>

<p>Garnishment. Before Judge Fite. Catoosa superior court. January 4, 1915.</p>

<p>Habeas corpus. Before Judge Fite. Bartow superior court. April 30, 1915.</p>

<p>1. Where one has used uninterruptedly a private way not over 15 feet in width through the improved lands of another for more than seven years, such person acquires a prescriptive right thereto.</p> <p>2. Where prescriptive use is the basis of a private right of way, the character of the use during the prescribing period determines the right of the preseriber. Accordingly, where one has used a private wa.y for more than thirty years through the improved lands of another without gates or other obstructions, the erection of gates or fences across such way by another would give the prescriber the right to have such obstructions removed in the manner provided by law.</p> <p>3. The court did not err in overruling the certiorari and in refusing a new trial.</p>

<p>1. Where, on the trial of an issue as to the mental capacity of a grantor to execute a deed, a non-expert witness testified that she was the daughter of the grantor and had conversed with him and heard him talk with others, and had observed his conduct towards herself as well as towards others, it was Competent for her as a non-expert witness to testify to the effect that the mind of the grantor was unsound.</p> <p>2. A ground of a motion for new trial based upon the admission of evidence should state what objection was made thereto when it was offered at the trial, and should affirmatively show that the objection was then urged; otherwise no question is raised for determination. Under this rule the assignment of error based on a ground of the motion for new trial complaining of a ruling in admitting certain evidence can not be considered.</p> <p>3. The controlling question is whether at the time of executing the deed the grantor had sufficient mental capacity to contract, and whether he was induced thereto by undue influence upon the part of the grantees. The evidence was insufficient to authorize the jury to find a want of mental capacity or the exercise of undue influence upon the grantor. It was erroneous, therefore, to charge upon that subject, and, after a verdict for the plaintiff, to refuse to grant the defendants a new trial on account of the error in the charge and the want of evidence to support the verdict.</p>

Complaint. Before Judge Wright. Walker superior court. December 31,1914. H. S. Probasco, as the holder of two promissory notes, instituted an action thereon against the makers.

Temporary alimony. Before Judge Bartlett. Haralson superior court. April 2Í, 1915.

<p>Exceptions to auditor’s report. Before Judge Park. Hancock superior court. September 30, 1914.</p> <p>The Sparta Cotton Mill and its directors, who also sued as stockholders, brought an action against the other stockholders and creditors of the corporation, for equitable adjustment of the stockholders’ liabilities and for marshaling and distribution of its assets. ' The petition alleged that the persons named as stockholders undertook to form a corporation, and signed the following subscription agreement: “Sparta, Georgia, March 27, 1907. Eor the purpose of organizing the Sparta Cotton Mill, a corporation to be capitalized at $100,000, as follows: $50,000 of preferred stock, and $50,000 of common stock, each class of stock to be of the par value of $100 per share, we, the undersigned, subscribe, and will pay for as called by the directors of the corporation, the amount set opposite our respective names (whether subscriptions are for preferred or common stock to be designated below). The preferred stock shall have preference both as to principal and dividends, the dividends on the preferred stock to be seven per cent, per annum, and guaranteed, and no dividends shall be paid on common stock until after dividends on the preferred stock shall have been paid. In view of these preferences the preferred stock shall have no voting power, which power shall be vested entirely in the common stock, and the preferred stock shall- not share in the profits of the corporation beyond its annual dividend of -seven per cent.; any profits that may be earned by the corporation in excess of this guaranteed dividend is to be paid only to the holders of common stock. If deemed advisable by a majority in amount of the subscribers hereto, the proportion of the preferred and common stock hereinbefore indicated may be changed ■so that there may.be a greater proportion of common stock, but in no event shall the preferred stock be more than fifty per cent, of the capitalization stated above. -It is understood a-nd agreed between the subscribers hereto and E. F. Bryan and J. W. Griffin, that the last-mentioned party will, for and in consideration of the sum of forty-two thousand ($42,000) dollars, convey by warranty deed, free from all liens or incumbrances, to the subscribers •hereto all the lands now owned by the Sparta Oil Mill, except the oil machinery and property strictly pertaining to the oil business and ginhouse and ginnery, same being detached and in no way interferes with the cotton-mill property, which is to be removed within a reasonable time from its present location. The subscriptions hereto shall become binding and effective when seventy-five per cent, of the total capitalization of the corporation shall have been subscribed.” On June 24, 1907, a charter having been obtained, the corporation was organized, officers elected, and by-laws ■for the government of the'institution were passed. At this meeting it was ascertained and spread upon the' minutes that 224 shares were to be preferred stock and 454 shares were to be, common stock; and a form of certificate was devised and adopted to define the status and the rights of the preferred stockholders, and the same was spread upon the minutes. Calls for the payment of the stock subscriptions were duly made, and notice givén to each stockholder. The directors purchased from the Sparta Oil Mill the property described in the subscription agreement (known as the Montour Mills property), except the'power-plant, for the sum of $37,000. The power-plant was deemed inadequate for the purposes intended, and the purchase-price was reduced $5,000. Some of the subscribers paid for their stock in full, some in part, and some have not paid. The directors made ineffectual efforts to operate the property, and in so doing incurred certain debts. It was difficult to get a meeting of the stockholders, but finally a majority of the common stock and 95 per cent, of the shares of the preferred stock were represented at a meeting held on February 23, 1911, at which meeting, after re-electing petitioners as directors, the stockholders voted to liquidate the affairs of the company; and 'this petition is filed for the purpose of marshaling and distributing the assets upon equitable principles, and for other relief ancillary thereto.</p> <p>Certain of the defendants filed answers, and the case was referred to an auditor. Afterward the answer was amended by alleging that the defendants were not bound by. their contracts of subscription, for the reason that there is a radical and fundamental difference between the charter and the subscription agreement. The plaintiffs demurred to so much of the original answer and amendment as set up fraud in the procurement of the stock subscriptions, and to so much as averred a variance between the sub■scription agreement and the charter. The auditor sustained the demurrer. The auditor made his report, and exceptions of law and of fact thereto were filed by the defendants. The court rendered the following judgment: “And now, in open court, upon the auditor’s report in said case, as modified by the decision of the judge on exceptions thereto, it is finally considered and adjudged and decreed as follows: The defendants answering in this ease and setting up the variance of the charter from the contract of subscription are discharged from further payment on said subscriptions, and said unpaid subscriptions are not assets of the Sparta Cotton Mill. The note of Sparta Cotton Mill to Sparta Oil Mill for $2,421.26 .(balance of principal), appearing.from the evidence to be a part of the purchase-price of Montour Cotton Mills and allowed by the auditor as a valid obligation of the Sparta Cotton Mills, is disallowed as such, and the interventions filed for the purpose of applying said debt to judgments against Sparta Oil Mill are refused and disallowed. The intervention of National Bank of TJnion Point, alleging its debt against Sparta Cotton Mill to be secured by collateral notes therein set out and in evidence, is retained for the purpose of enforcing said collateral should the debt be not fully paid otherwise; and the parties to this case interested in said intervention are retained for that purpose. The fund raised by the sale of Montour Mills property on June 2, 1914, is 'to be administered as provided by previous judgments, save as modified hereby, the cost of the case being therein provided for. The valid debts of the corporation being thus fully provided for, the directors and officers of Sparta Cotton Mill, petitioners herein, appearing to have honestly discharged their duties, are discharged from further liability. This Sept. 30, 1914.”</p> <p>Exception is taken to so much of the judgment as held that the defendants were discharged on their subscription agreement because of its variance from the charter of the corporation; to so much thereof as undertook to rule that E. A. Eozier, E. E. Bryan, J. W. Griffin, and John D. Walker were not entitled to their subscriptions allowed by the auditor, being found to arise from their participation as stockholders of the Sparta Oil Mill in the purchase of the cotton-mill property sold by the oil-mill to the Sparta Cotton Mill; to so much of the decree as disallows the note of the Sparta Cotton Mill to the Sparta Oil Mill for $2,421.26, as an indebtedness against the Sparta Cotton Mill; and to the discharge of all stock subscriptions which had not been paid in, without providing for either the equalization or repayment of preferred-stock payments. The defendants except to so much of the judgment as overruled their exceptions of law and fact other than those sustained by the court.</p>

<p>The material parts of a will made in 1878 were as follows: “4. It is my further will, that my real estate, consisting of lots of land Nos. 123, 124, 125, 132, and 157, in the 13th district of said county, and my town property in the town of Smithville in said county, shall belong jointly to my husband, Andrew J. Miller, and my daughter, Julia Eppie Miller; one half to said daughter in fee simple, the other (1/2) one half to said Andrew J. Miller for and during his natural life, and after his death to revert to my said daughter, Julia Eppie Miller. 5. It is my further will and desire that if my said daughter should die without children, then her interest in my estate to go to my husband if in life; but if he should not survive my daughter, and she should die without leaving children or representatives of children, then her interest in my estate to be equally divided, one half (1/2) to the family of my beloved father, W. M. McAfee, and the other half to the heirs at law of my said husband, according to the statute of distribution of this State. 6. It is my further will and desire that all the property herein given to my said daughter, Julia Eppie Miller, shall belong to her and any children she may have, free from any debts or control of any husband she may have.” The husband of the testatrix died before his daughter. At the death of the testatrix the daughter had no children; subsequently she married, and died leaving children. Held that the estate devised to the daughter (her father having predeceased her) is an estate in fee, subject to be divested upon her death without children or representatives of children. Upon her death leaving children the defeasance did not operate, and a grantee from her took a fee-simple estate in the lands devised in the will.</p>

<p>Action for damages. Before Judge Gilbert. Muscogee superior court. August 20, 1914.</p>

<p>Equitable petition. Before Judge Cox. Grady superior court. September 8, 1914.</p>

<p>Where land set apart as a homestead, under the constitution of 1877, was levied on under a judgment rendered before the homestead was set apart, against a firm of which the head of a family was a member, and a claim was interposed by the head of the family, and a consent verdict and judgment were rendered finding a part of the land subject and directing the execution to be then transferred to the defendant in fi. fa., against whom it was proceeding (who was also the head of the family), such verdict and judgment were binding on the beneficiaries, unless successfully attacked by them. If attacked by beneficiaries as voidable for fraud, it was incumbent on the persons making such attack to sustain it.</p> <p>(а) If beneficiaries of the homestead sought to recover the land which had been sold after the consent verdict and judgment as indicated in the above headnote, and their petition showed the facts indicated, it was demurrable in the absence of allegations showing that the judgment was void or voidable.</p> <p>(б) No such facts were alleged.</p> <p>(c) Construed in the light of the pleadings and the written consent of counsel, the verdict was not void for uncertainty on .the ground that it omitted the word “subject.”</p> <p>(d) Under the facts stated above, the omission to file an affidavit as provided by tbe Civil Code (1910), § 3400, did not render the verdict and judgment and sale void.</p>

<p>Equitable petition. Before Judge Thomas. Echols superior court. January 16, 1915.</p>

Petition for injunction. Before Judge Thomas. Thomas superior court. February 20, 1915.

<p>Action for damages. Before Judge Rawlings. Montgomery superior court. October 9, 1914.</p>

<p>Complaint. Before Judge Quincey. Charlton superior court, October 7, 1914.</p>

<p>Complaint for land. Before Judge Ellis. Eulton superior court. October 13, 1914.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. December 23, 1914.</p> <p>Mrs. Adeline Coppedge died in 1906, intestate, leaving $350 in money ana certain household furnishings, which were inherited by her five children. Four of them filed a petition alleging that they left their share in the money and property with their sister, Miss Emma Coppedge, who by investment had increased the money to $600. Miss Emma died in 1914, leaving a will giving her entire estate to Z. T. Coppedge, who was nominated executor. The will has been probated in common form, and application has been made for probate in solemn form. The property now consists of a past-due note of $600 from C. F. Coppedge to Miss Emma Coppedge, indorsed by her to Z. T. Coppedge, and certain personalty approximating $150 in value. This property is in possession of Z. T. Coppedge, who is insolvent, and claims the property in its entirety as belonging to his testatrix, and who will collect the note, sell the personalty, and dissipate the proceeds. The prayer is, for a receiver to collect the note and take charge of the personalty and sell it; that petitioners’ interests be decreed as a one-fifth interest each therein; for injunction against C. F. Coppedge from paying the note to Z. T. Coppedge; and for general relief. The court overruled a general demurrer.</p>

<p>Equitable petition. Before Judge Beid. Clayton superior court. November 14, 1914.</p>

<p>Habeas corpus. Before Judge Walker. Emanuel superior court. April 16,1915.</p>

<p>Motion to vacate judgment. Before Judge Hammond. Burke superior court. November 7, 1914.</p>

<p>Action upon bond. Before Judge Hammond. Richmond superior court. January 11, 1915.</p>

<p>Injunction. Before Judge Hammond. Richmond superior court. June 8,1915.</p>

<p>Ejectment. Before Judge Mathews. Crawford superior court. October 20, 1914.</p>

<p>Complaint for land. Before Judge Wright. Walker superior court. October 10, 1914.</p>

<p>Action for damages. Before Judge Edwards. Floyd superior court. December 29, 1914.</p>

<p>Action for damages. Before Judge George. Crisp superior court. January 5, 1915.</p>

<p>Complaint. Before Judge Cos. Grady superior court. September 8, 1914.</p>

<p>Complaint. Before Judge Thomas. Colquitt superior court. December 18, 1915.</p>

<p>Claim. Before Judge Larsen. Johnson superior court. November 38, 1914.</p>

<p>Claim. Before Judge Larsen. Johnson superior court.. December 31, 1914.</p>

<p>Intervention. Before Judge Conyers. Jeff Davis superior court. October 26, 1914.</p> <p>The Citizens National Bank of Danville, Ky., filed its intervention in the ease of the State of Georgia against the Farmers Bank of Hazlehurst, Georgia, in which F. M. Haynes was appointed receiver for the last-named bank. The intervenor alleged substantially as follows: On September 25, 1913, it placed with the Farmers State Bank (hereinafter called the bank) notes of D. Dunnegan, pledged by him to intervenor as collateral security for the sum of $5140, and, in so doing, wrote the following specific instructions to the bank as its trustee: “Sept. 25, 1913. Farmers State Bank, Hazlehurst, Ga. Gentlemen: Herewith I send you by registered -mail, for collection and returns, the following notes which are collateral on our B. D. 25933, namely: [giving the number and amount of each note and the name of the payee]. Mr. Dunnegan, our endorser on these notes, expects to be in your community by the first of October or a few days after, at which time he will co-operate with you in your efforts to get these notes paid. All payments that are made on these collections are to be remitted by you to this bank on the day the samé are made. Whenever Mr. Dunnegan thinks any note or notes should be placed in the hands of an attorney for collection, we will expect you to put said note or notes in the hands of some competent, reliable attorney. TJpon receipt of this, I would like to have you write me the name of the best attorney as to financial responsibility, ability, and energy in your town. All these notes are sent you no protest. Hoping you and Mr. Dunnegan will succeed in making rapid collection of these notes and returning proceeds to this bank promptly, I am, Bespectfully, J. A. Quisenberry, Cashier.” The notes were accepted by the employees of the bank upon the express terms and conditions contained in the instructions above quoted, which at the time of remitting the notes accompanied them. The bank, prior to its failure and the appointment of the receiver, collected from the notes the sum of $792.80, which fact was unknown to the intervenor until after the failure of the bank and the appointment of its receiver. At no time did the intervenor intend to become a creditor or depositor of the bank, neither would it have done so during the course of its business transactions with the bank; but it was the express intention and purpose of the intervenor to create the bank a trustee “as a medium of transportation of the funds received by it for intervenor,” and the bank so understood the purpose and intention and the true relation and terms of the contract entered into by the intervenor and the bank, so that the bank was the trustee to accept and receive and forward on each day the whole amount collected from the notes deposited with it by the intervenor; and the bank received and accepted and obligated itself to collect and receive payments on the notes as the trustee of the intervenor, and to remit each day’s collection on the day made. It was never in contemplation of the contract that any fund collected or paid on the notes by the debtors, or collected from the debtors by the agent of the intervenor, should be received and held for any'length of time greater than was actually necessary to transmit from the hands of the bank to the intervenor. By reason of the collection of the notes in the sum of $792.80 and the retaining of that amount by the bank, it had assets to the above-stated amount over and above that which it otherwise would have had, and over and above that to which it was entitled; and all of the money now in the hands of the receiver, or that may come into his hands from the reducing of any of the assets of the bank' to cash, is burdened with and subject to a preference in favor of the intervenor as a trust fund for its use, for the reason that the common depositors, who by operation of law become the creditors of the bank, are and can be in no way injured by paying from the first funds collected from the assets of the bank, or from the money now in the .hands of the receiver, the amount collected by the bank, under the express terms of the contract hereinbefore set out, as the trustee of intervenor. Intervenor is entitled to a preference over the common depositors and lien creditors, if such there be, upon the notes in the hands of the receiver of the bank, for the reason that the trust fund collected by it was loaned to the makers of the notes, which are the equivalent of and represent the trust fund so collected by the intervenor’s trustee, and without its consent and against its express contract invested by the bank in its assets. Investing the collections made from the notes of intervenor in the property and assets of the bank was a crime, in that the officer so investing-was guilty of embezzlement of the funds of intervenor, and it is entitled to trace the investments and burden the assets of the bank with a preference sufficient in amount to pay off the funds so misappropriated and embezzled by the bank. At the time the bank accepted the notes from the intervenor and became its special trustee for the purpose of collecting and remitting on each day the collections made, it was insolvent; and for this reason the intervenor is entitled to a preference out of the assets and funds of the bank in amount sufficient to liquidate the funds so collected and misappropriated by the bank. It was never in contemplation of the contract between intervenor and the bank that any fund collected from the notes entrusted to it should be credited to the account of intervenor either as a general or special depositor, or in any way whatever ;• but it was expressly agreed that any fund collected on any of the notes should be remitted promptly on the day collected; and any diversion of any fund by the bank, or by any officer thereof, was a crime under the law; and for this reason intervenor is entitled to a preference and superior lien on any funds in the bank, or any funds arising from the sale of any of its property or assets. Intervenor prayed that it be made a party to the case; and that upon the trial the receiver be directed to pay from the funds in his hands, or from any funds arising from the sale of any assets of the bank the sum of $792.80, with interest, etc.</p> <p>The receiver answered substantially as follows: At the time of the failure of the bank and the taking charge of its assets, there appeared upon its books a deposit in favor of the intervenor in the sum of $792.80. The intervenor is a general creditor of the bank, and is not entitled to any preference or priority, in that whatever sums were collected by the bank were placed to the credit of the intervenor upon the books of the bank, and the deposit is a general deposit and not entitled to any preference or priority. Whatever amounts had been collected by the bank for ‘the intervenor prior to the failure of the bank had not been kept separate and apart from the other assets of the bank, but had been mingled with the other assets of the bank in such manner that it would be impossible to trace them and burden them with a priority in favor of intervenor. At the time defendant took charge of the bank as receiver, the funds arising from the collection of any note for the intervenor were not in the bank, as there was in the vaults of the bank at that time only the sum of $27.87. As receiver he had collected from all sources since his appointment the sum of $13,087.35, and has paid out, on authority of the court, the sum of $758.95, leaving a balance on hand at this time of $12,328.40, and the bank is owing to demand depositors, including intervenor and other depos- ■ itors, various amounts which will be shown in detail by the report of the receiver, etc.</p> <p>The ease was submitted to the trial judge, without the interven- • tion of a jury, as to the law and the facts, on the pleadings and an agreed statement of facts. The court rendered a judgment denying the prayers of the intervenor’s petition, but entered in lieu thereof a general judgment in its favor for $792.80 principal against the receiver, to share with other general creditors in the dividend that day declared and in any other funds he may hereafter have for distribution. To this order the intervenor excepted.</p>

<p>Indictment for murder. Before Judge Wright. Walker superior court. June 22, 1915.</p>

<p>Motion for new trial. Before Judge Sheppard. Tattnall superior court. July 27, 1914.</p>

<p>Indictment for murder. Before Judge Littlejohn. Lee superior court. June 25, 1915.</p>

<p>Interpleader. Before Judge Patterson. Floyd superior court. December 23, 1914.</p>

<p>Complaint. Before Judge Patterson. Forsyth superior court. August 28, 1914.</p>

<p>1. An illiterate person may execute a bond conditioned to make title to land, by procuring another to sign his name in his presence to the instrument.</p> <p>2. Seven years bona fide adverse possession, under a bond for title, with some of the purchase-money unpaid, is a good prescriptive title against everybody but the obligor and his privies. That the maker of the bond-has no title or is in possession by permission makes no difference.</p> <p>3. A charge which is abstractly correct is not rendered erroneous by a failure to charge some other legal principle applicable to the case.</p> <p>4. It was not error to charge the jury: “A party might be informed that he is not getting title, and yet believe that he was; he might not accept the statement of the person undertaking to advise him about it, and yet act in good faith in the purchase of the property; that is a question for you to decide.”</p> <p>5. Upon the death of a father, prior to the adoption of the constitution of 1868, leaving a widow and children, the land which he owned at the time .of his death vested in them as tenants in common; and if in 1869 the widow, as the head of a family of four minor children, made application and had set apart to her as a homestead all the land left by him, the action of the ordinary in setting apart the interest of the children as a homestead was void. The children had an immediate right of action against their mother; and if she sold the land to another after they became of age, and such person bona fide entered into possession under the written evidence of title, and remained in adverse possession for more than seven years, he would acquire a prescriptive title against them. Such prescription would likewise prevail against the administrator of their father, who was appointed forty-three years after his death.</p> <p>6. No substantial error of law was committed.' in the court’s instruction, and the verdict is supported by the evidence.</p>

<p>Petition for injunction. Before Judge Gilbert. Harris superior court. June 15, 1915.</p>

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

<p>Processioning. Before Judge Thomas. Berrien superior court. November 20, 1914. '</p>

Equitable petition. Before Judge Thomas. Tift superior court. January 9, 1915.

<p>Complaint. Before Judge Rawlings. Jenkins superior court. August 31,1914.</p>

<p>Action for damages. Before Judge Rawlings. Emanuel superior court. December 10, 1914.</p>

<p>Complaint. Before Judge Edwards. Paulding superior court. October 7, 1914.</p>

Equitable petition. Before Judge Quincey. Ware superior court. December 28, 1914. The Lewis Manufacturing' Company and Georgia-Florida Land Company instituted an equitable action against Thrift Brothers, to enjoin the cutting of timber and working it for turpentine purposes on lot 523 in the 8th district of Ware county. The plaintiffs relied upon a chain of title from .the State to themselves.

<p>Complaint. Before Judge Bell. Fulton superior court. July 8, 1914.</p>

<p>Motion to set aside judgment. Before Judge Bell. Fulton su* perior court. July 28, 1914.</p>

<p>Complaint. Before Judge Rawlings. Toombs superior court. October 12, 1914.</p>

<p>Lien foreclosure. Before Judge Sheppard. Tattnall superior court. July 10, 1914.</p>

<p>A woman brought suit against the owner of an automobile, and his chauffeur, to recover damages on account of the death of the plaintiff’s son, alleged to have been caused by the negligent operation of the automobile. On the trial, at the close of the plaintiff’s evidence, the court granted a nonsuit as to the owner of the automobile. When the order granting such nonsuit was signed, the plaintiff dismissed the suit as to the remaining defendant, “so as to bring to this court directly for review the judgment of nonsuit as to” the owner of the machine, alleging that, the plaintiff having dismissed the suit as to the chauffeur, the judgment of nonsuit as to the owner was a judgment which disposed of the case in the court below, and left nothing for a jury to try. Held, that while it has been ruled that the plaintiff had the right to except to the grant of a nonsuit as to one of the two defendants against both of whom she elected to bring her suit, and to seek, by reversal of the judgment of nonsuit, if erroneous, to have the case reinstated and proceed to verdict as to both defendants, yet when, after the grant of a non-suit as to one of the defendants, she chose to dismiss the case as to the remaining defendant, and thus to destroy the power of the court to reinstate the case as a suit against both defendants by means of a-reversal, if one should be had, so that a reversal would not reinstate the case as it existed when the error complained of was made, because of her voluntary action in rendering this impossible, on motion the writ of error must be dismissed.</p>

Action for damages. Before Judge Larsen. Houston superior court. December 21, 1914. H. C. Harris, in July, 1883, conveyed a house and lot to his wife, Zetella Harris, for life, with remainder to her children. The life-tenant died in 1888. In 1893 H. C. Harris died, leaving a will in which his son, W. H. Harris, the nominated executor, was given full power to do, with reference to the property of the testator, whatever the testator might do if he were in life.

<p>Complaint for land. Before Judge Bawlings. Glascock superior court. December 7, 1914.</p>

<p>Claim. Before Judge Patterson. Cobb superior court. January 15, 1915.</p>

<p>Complaint for land. Before Judge Edwards. Douglas superior court. December 31, 1914.</p>

Action upon insurance policy. Before Judge Park. Baldwin superior court. September 12, 1914.

Action for damages. Before Judge Park. Wilkinson superior court. October 6, 1914.

<p>Petition for direction; intervention. Before Judge Park. Putnam superior court. December 30, 1914.</p>

<p>Injunction. Before Judge Cox. Dougherty superior court. April 10,1915.</p>

<p>Complaint for land. Before Judgb Bell. Fulton superior court. December 22, 1914.</p>

<p>Action of tort; from Richmond. Motion to dismiss.</p>

<p>Specific performance. Before Judge Sheppard. Liberty superior court. Au-S11^ 12, 1914.</p>

<p>Complaint. Before Judge Hammond. McDuffie superior court. December 19, 1914.</p>

<p>Affidavit of illegality of execution. Before Judge Seabrook. Tattnall superior court. September 4, 1914.</p>

<p>Complaint. Before Judge Walker. Wilkes superior court. September 19, 1914.</p>

Trover. Before Judge Edwards. Douglas superior court. December 22, 1914. Fuller E. Callaway Company brought an action of trover against R. L. Fountain Jr., to recover certain personal property consisting of various articles of dry goods. The plaintiff based its right to recover upon the ground that the goods had been procured from it by fraud on the part of the defendant.

<p>Lien foreclosure. Before Judge Brand. Fayette superior court. December 5, 1914.</p> <p>T. B. Farrer brought suit alleging that he had entered into a contract with the defendant, J. T. Edwards, under the terms of which the plaintiff was to do certain building and remodeling and to make certain improvements upon specified buildings, for which the defendant was to pay him a stated sum, that being the actual expense incurred in making the improvements. Plaintiff complied with his contract and completed it on September 13,- 1910. He claimed a lien upon the real estate and had recorded his claim of lien as required by law; and the suit was filed within twelve months after his claim became due. He prayed a judgment against the defendant for the amount of his claim, and a specific judgment against the real estate. When the case came on for trial, an oral demurrer to the petition was submitted, “on the ground that if the facts set up in said case were true the same would not set up a cause of action on which plaintiff could legally recover.” The court sustained the demurrer, and the plaintiff timely filed exceptions pendente lite. After recitals to the foregoing effect, the bill of exceptions continues: “That at the same term of the court the plaintiff amended his petition, and the suit came on to be heard at the September term of Fayette superior court, 1914 [this being two terms after that at which the demurrer was sustained] ;’and the jury having been stricken, evidence was offered for plaintiff, and the plaintiff offered the original lien sued' on in evidence, and which constituted the basis of the suit as it now stands, and which the plaintiff sought to foreclose, and which sets out a legal cause of action which the suit was predicated on, and which the court refused to allow as evidence of any special lien, but only allowing same as a history of a transaction between the parties plaintiff and defendant; and to this ruling and judgment of the court plaintiff excepted then, and now excepts and assigns same as error thereon, in excluding the lien as set up only as a history of a transaction, and that said lien should have its full power and legal effect as the law gives in proceedings to foreclose a workman’s and mechanic’s lien.” Other evidence was introduced by both parties. After the charge of the court the jury returned a verdict for the defendant. The plaintiff made a motion for a new trial, which was overruled, and he excepted.</p>

<p>Eviction. Before Judge Freeman. Troup superior court. December 31, 1914. ■</p>

Claim. Before L. C. Slade, judge pro hac vice. Muscogee superior court. August 12, 1914. A fi. fa. in favor of Merchants and Mechanics Bank against H. M. Mooty was levied upon certain real estate in the City of Columbus, as the property of the defendant in fi. fa.; and Leo Loewenherz interposed his claim, to the property.' When the case came on for trial the plaintiff tendered issue, and set up specifically certain grounds upon which it claimed the property was subject.

Distraint. Before Judge Worrill. Early superior court. October 7, 1914. H. G. -Smith sued out a distress warrant against Clarence Thomas, who interposed a counter-affidavit and gave a replevy bond signed by himself as principal and J. B. Daniels as security.

<p>Money rule. Before Judge Thomas. Colquitt superior court. October 16, 1914.</p>

<p>Petition for injunction. Before Judge Thomas. Thomas superior court. March 27, 1915.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. October 22, 1914.</p> <p>Tom Williams brought suit against the railway company to recover damages on account of personal injuries, alleging substantially as follows: He was a painter and common laborer of the defendant, working in its yard in the city of Atlanta. About noon of the day on which he was injured he got on an engine of the defendant which had been left standing in its yard to be repaired, and while there he picked up a hammer lying on the engine and with it struck a loose torpedo, which exploded and caused the injuries complained of. It was gross negligence on the part of the defendant to allow a torpedo, loaded with a dangerous explosive, to remain on the engine, and not to notify the plaintiff and the other employees at work in the yards' of its presence thereon. Prior to his injury the plaintiff never saw a torpedo, did not know “that said thing” was a torpedo, did not know that it was dangerous, or that if it came in contact with a hammer it would explode. (There was no allegation that the plaintiff was a minor.) It was the custom of the plaintiff and other employees of the defendant, when engines were left in the yard for repairs, to go on the same during the lunch hours, and to stand or sit thereon during the noon hour, and this custom was well known to the defendant, its agents and employees, and there was no rule forbidding it.</p> <p>On general demurrer the action was dismissed, and the plaintiff excepted.</p>

<p>There was no error in dismissing the petition on demurrer.</p>

<p>Equitable petition. Before Judge Walker. Columbia superior court. September 29, 1914.</p>

Equitable petition. Before Judge Sheppard. Tattnall superior court. September 19, 1914. Held: which petitioner did.” She did not know the contents of the paper, nor was it read in her hearing, nor would she have signed it had she known or had reason to suspect that it was a deed of conveyance. P. B. H. wilfully tricked and misled her in causing her to place her name upon the paper.

<p>Complaint. Before Judge Hammond. Richmond superior court. January 27, 1915.</p>

<p>Where bail-trover was instituted in a given county, and certain property of the defendant named in the proceeding was seized under the provisions of the statute, and the defendant gave a replevy bond with .surety, and subsequently made no further objection to the jurisdiction of the superior court of the county in which the proceeding was instituted but allowed the same to mature to judgment, he should not be heard subsequently to assert, in an equitable petition brought to restrain an execution based upon the judgment, that the court referred to was without jurisdiction. It was erroneous to grant an injunction against enforcement of the execution.</p>

<p>Complaint. Before Judge Walker. Taliaferro superior court. November 5, 1914.</p>

<p>Indictment for murder. Before Judge Blent. Laurens superior court. June 23, 1915.</p>

Equitable petition. Before Judge Cox. Worth superior court. October 16, 1914. P. Brooks Ford and others, alleging themselves to be heirs of 'W. J. Ford Sr., deceased, brought an equitable action against Rowena J. Ford, the widow of the decedent, and alleged to be his only other heir beside the plaintiffs, J. A. Hanes as administrator of the decedent, and R. L. Sutton.

<p>Exceptions to auditor’s report. Before Judge Cox. Turner superior court. October 28, 1914.</p>

Petition for injunction. Before Judge Graham. Pulaski superior court. January 21, 1915. J. H. Martin died testate. His estate was divided into a life-estate devised to his wife, who survived him, with remainder to his daughter, these being the only two persons interested in his estate.

<p>Motion to arrest judgment. Before Judge Charlton. Chatham superior court. August 20, 1914.</p>

<p>1. Where exceptions of fact and of law are filed to an auditor’s report in an equity case, and a consent order is taken referring the whole case to the court for final decree without the intervention of a jury, the court is not required to pass seriatim on each exception.</p> <p>2. Where a suit is brought against a defendant, and no process is prayed or annexed to the petition, and the defendant neither waives process nor pleads to the merits, and such suit is voluntarily dismissed by the plaintiff; and where the plaintiff within six months of the dismissal of the first suit brings a second one against the defendant, the first action does not constitute the pendency of a suit, so as to prevent the bar of the statute of limitations from arising, and give the plaintiff the right to bring a second action within six months of the dismissal of the first.</p> <p>3. An administrator may, in good faith and with proper prudence, submit to arbitration matters in controversy in connection with the estate he represents.</p> <p>4. The evidence authorized the conclusion of the auditor that no fraud was perpetrated on the administrator, and that he participated in the arbitration and accepted the money found to be due by the arbitrators; and the court did not abuse his discretion in approving such findings of fact by the auditor.</p> <p>5. “Receipt by one party of that which is awarded to such party will estop that party from refusing to comply with the award in favor of the other party, on the plea of illegality or irregularity in the award.”</p> <p>6. A claimant of land who is out of possession should seasonably apply for cancellation of arbitration proceedings alleged to be a- cloud upon his title, where the party in possession claims title under such proceedings, of which the claimant has notice, or he will be barred by his laches. Following the analogy of the law, a plaintiff under such circumstances will be barred of his remedy within seven years.</p> <p>7. Where it is complained that an auditor refused to allow a witness to testify that he had instituted a suit, and it appears that subsequently during the hearing the record of the suit was introduced in evidence and the witness interrogated with respect thereto, any error in the ruling so complained of becomes immaterial.</p> <p>8. Under the circumstances narrated in the corresponding division of this opinion, the ruling of the auditor complained of will not require a new trial.</p> <p>9. The decree of the court is supported by the evidence, and no sufficient reason is made to appear for its vacation.</p>

<p>1. Where matters in controversy are submitted to arbitration, and the agreement contemplates statutory arbitration, and an award is rendered by the arbitrators but is not made the judgment of the court as required by the statute, and on that account fails to become effective as a statutory award, it is not binding upon the parties and can not be enforced as a common-law award.</p> <p>2. Where a line of credit was extended h.y a bank to a corporation, on condition that the stockholders should indorse notes of the institution for money borrowed, and the stockholders entered into an agreement between themselves to become such indorsers on condition that the limit of credit should not exceed’ a stated amount, and thereafter one of the stockholders, having notice that his cosureties were violating the agreement as to the limit of credit, or had already done so, indorsed the note, he could not thereafter cjaim exemption from contribution to his coindorsers who had paid the note, on account of the corporation having exceeded the limit of credit. But, though being an officer of the corporation, if, at the time he indorsed the note on which it was sought to charge him for contribution to his cosureties, he did not have notice that the limit of credit had been exceeded, and indorsed the paper on the representation by his cosureties that the limit of credit was not being exceeded, he could urge the violation of the agreement as to the limit of credit to be extended to the corporation, in defense of the action by his cosureties against him for contribution.</p>

<p>Complaint for land. Before Judge Mathews. Bibb superior court. November 13, 1914.</p>

<p>Petitiou for delivery of possession. Before Judge Thomas. Colquitt superior court. May 83 1915.</p> <p>J. S. Davis brought a petition setting up the following facts: On December 1, 1914, certain parties filed a petition in the United States District Court for the Southern District of Georgia against J. W. Coleman and Farmers and Merchants Warehouse Company, praying that they be declared a bankrupt, it being charged in that petition that Farmers and Merchants Warehouse Company was a trade-name used by J. W. Coleman, and that he was the sole proprietor thereof. On the following day the petitioners in that case filed a petition praying that a receiver be appointed for Coleman and Farmers and Merchants Warehouse Company. The judge of the United States court being absent from the district, the referee in bankruptcy passed an order requiring the defendants to show cause on December 4th (later requiring them to show cause on December 13th) why a receiver should not be appointed as prayed, and in the meantime restraining and enjoining them from changing the status of their assets until the further order of the court; and on December 13th, the judge still being absent from the district, the referee passed an order continuing of force the restraining order previously passed, and assigning a further hearing upon the application for the appointment of a receiver before the judge of the United States District Court for thé Southern District of Georgia) at the regular session of said court to be held in the month of January, 1915, or such other time as might be assigned by said judge. Coleman and Farmers and Merchants Warehouse Company were duly adjudicated a bankrupt, and Coleman filed his schedule in bankruptcy. The referee in bankruptcy passed an order, on January 7, 1915, appointing J. S. Davis as receiver in bankruptcy for Coleman and Farmers and Merchants Warehouse Company; and he thereupon took charge of such assets belonging to the bankrupt as were pointed out and delivered to him. Coleman was possessed of three policies of fire insurance of the value of forty-five hundred dollars each (naming them), and they were in his possession, custody, and control on December 4, 1914, when he appeared before R. J. Bacon, referee, upon a rule for him to show cause why a receiver should not be appointed. Coleman, trading under the name of Farmers and Merchants Warehouse Company, was conducting in the City of Moultrie the business of a warehouseman; he accepted cotton, hay, grain, and other property on storage, and charged therefor; for the purpose of affording protection to persons depositing goods with him for storage, he issued to such depositors certificates of insurance and charged therefor, and therein and thereby constituted himself an insurer .against loss or damage by fire; and in order to protect himself against such liability he caused to be issued to Farmers and Merchants Warehouse Company, he being the' sole proprietor thereof, the insurance policies mentioned. On October 27, 1914, the warehouse was destroyed by fire and all of the contents became a total loss, and thereby the policies of insurance became due and payable. On December 8, 1914, while the petition in the United States court was still pending, W. J. Perkins and others filed a petition in the superior court of Colquitt county against Coleman and Farmers and Merchants Warehouse Company, and prayed that a receiver be appointed to take charge of the policies of insurance mentioned; and upon said petition T. E. Williams and W. S. Stokes were appointed coreceivers. Later Stokes was relieved, and Williams is now the sole receiver of the superior court. It is alleged that immediately upon the appointment of this receiver Coleman delivered to him the policies of insurance, notwithstanding the fact that the United States court had already taken jurisdiction of the person and property of Coleman and Farmers and Merchants Warehouse Company, and had passed an order restraining and enjoining them from changing or altering the status of their property and assets. On. December 12, 1914, Coleman appeared before the referee in bankruptcy, who passed an order continuing the restraining order referred to, and assigning a further hearing before the judge of the United States court in January, 1915; but on January 7, 1915, it being made to appear to R. J. Bacon, referee, that it was expedient and necessary that a receiver be appointed to take charge of all the assets, he then and there passed an order appointing petitioner as such receiver, who thereupon took charge of all assets turned over to him. He has made demand upon Coleman, and upon Williams, receiver, for the poliches of insurance; but delivery of them has been refused. The insurance companies stand ready to pay over the sum of $13,500 due under the policies, but are restrained and enjoined from doing so by both courts. The amount due by the insurance companies is part of the estate of J. W. Coleman, and is administrable by the United States court; the superior court is without jurisdiction in the matter; and it is essential that the money be collected and •paid to those to whom it rightfully belongs. On March 3, 1915, the judge of the United States District Court for the Southern District of Georgia, in chambers, passed an order confirming the appointment of petitioner as receiver by the referee .in bankruptcy, and directing that petitioner “make respectful application, as such receiver, to the Hon. W. E. Thomas, Judge of the Superior Court of Colquitt County, Georgia, for an order to W. S. Stokes and T. E. Williams, receivers, requiring them to deliver to Joseph S. Davis, as United States marshal and receiver, the policies of insurance •mentioned herein or the proceeds of the same;” and “that the said Joseph S. Davis be authorized to take such action as may be necessary to carry this order into effect.” Petitioner prays that the judge of the superior court pass an order directed to T. E. Williams, receiver in the ease of Perkins et al. v. Coleman et al., and to the plaintiffs therein, requiring them to show cause why the prayers of this petition should not be granted, and that on the hearing ■ the judge will direct the said Williams to turn over and deliver to petitioner the policies of insurance referred to, and such other property as may have come into his hands, belonging to Coleman •or to Farmers and Merchants Warehouse Company.</p> <p>The defendants filed their answer, in which they denied that the insurance policies referred were for the benefit of Coleman or Farmers and Merchants Warehouse Company, but averred that they were issued for the sole purpose of protecting the cotton stored in the warehouse belonging to persons who had receipts marked “Insured,” and that the injunction with regard to changing the status of .the assets of Coleman and Farmers and Merchants Warehouse Company could not affect these policies, since they were not the assets of Coleman or of the warehouse company, and that the proceeds thereof, being a trust fund, never passed to the receiver or trustee of Coleman in the bankruptcy proceedings, but the same should be collected for the benefit of Perkins and those similarly situated. On the hearing a transcript of the evidence given by Coleman before the referee in bankruptcy was introduced, as follows: “I conducted my business under the name of Farmers and Merchants Warehouse Company. I was the sole member of that firm. I did a general storage business, though principally of cotton. . . For the storage of goods I charged various prices. Some cotton that was stored with me was insured; some was not. On October 31, 1914 [the date of the fire], there was five to six hundred bales of linters and thirty-six to thirty-eight hundred bales of cotton in the warehouse. The checking showed eight hundred and forty-nine bales of cotton insured. . . I am positive that there was insurance on eight hundred and twenty to eight hundred and twenty-five bales of cotton. My record showed the receipt, weight, and number of the bale, to whom issued, and charges for storage and insuring. Twenty-six thousand dollars was the approximate value of the 835 bales of cotton upon which I had issued insurance receipts. To protect myself I had taken out $13,500 insurance, in regular insurance policies. . . I realized that I was liable to my creditors for $36,500. I realized that I was legally and morally liable. Realizing this liability, I procured insurance to protect my depositors of cotton in the warehouse. I am not sure that those policies were made payable to the Farmers and Merchants Warehouse Company. That was all the insurance I carried. Yes, I myself had thirty-three bales of cotton in the warehouse. Of approximately 3600 bales in the warehouse, only 830 bales were marked ‘Insured.5 When a bále of cotton was insured, the receipt would show ‘Insured.5 I took out insurance for those storing cotton there. I did not mark any cotton 'Insured5 unless I was asked to do so by the parties, depositing same.55 Coleman further testified by affidavit, on the hearing, that he had no interest whatever in the policies of insurance, and that all of the money derived from them, so far as he was concerned, would go to W. J. Perkins and others similarly situated, who hold warehouse receipts marked “Insured.55 The insurance policies were issued in favor of Farmers and Merchants Warehouse. Company, and it was stipulated therein that they covered “cotton in bales, of their own, or held by them in trust, or on commission, or on joint account with others, or sold but not delivered, while contained in Farmers and Merchants Warehouse.55</p> <p>The court denied the petition, and the plaintiff excepted.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. January 25, 1915.</p>

<p>Action, for damages. • Before Judge Brand. Gwinnett superior court. December 21, 1914.</p>

<p>1. The evidence in this case did not authorize a verdict in favor of the plaintiffs, as based on an “account stated.”</p> <p>(a) “An account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.”</p> <p>2. Rule 10 of the superior courts (Civil Code of 1910, § 6269), which provides that in certain cases when a bill of particulars is not annexed to the declaratiqn the plaintiff shall lose a term, and if service of .the bill of particulars is not made upon the defendant by the succeeding term a nonsuit shall be awarded, is superseded by the pleading act of 1893 (Civil Code of 1910, § 5628), which provides that objections to petitions shall be made by demurrer at the first term of court.</p> <p>(a) Accordingly, where a bill of particulars was demanded by the answer of the defendant to be attached to a suit on an account at the first term of court to which the petition was filed, and the plaintiffs amended the petition by declaring on an account stated, it was not error, after several intervening terms of court, to overrule a motion to nonsuit the plaintiffs on the ground that no bill of particulars had been attached.</p> <p>(b) No demurrer was filed as such at the first term of court, calling for a bill of particulars; but if the demand in the answer were treated as such, the plaintiffs could amend the petition to meet the objection.</p> <p>3. Where on the trial of a suit on an open account the defendant demanded a bill of particulars, and the plaintiff's so amended the petition as to declare on an “account stated” for the same amount, instead of on an “open account,” such amendment was not open to the sole objection that it set up a new and distinct cause of action.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. November 12, 1914.</p>

<p>1. Although process be prayed against non-resident defendants, yet, if they are not served in the court below, a writ of error to a judgment on a demurrer filed by resident defendants will not be dismissed because the bill of exceptions is not served on the non-residents.</p> <p>2. Where a plaintiff prays different forms of relief, and the court adjudicates that he is not entitled to a specific relief, and strikes from the petition the prayer and its appropriate allegations, leaving in the petition a complete Cause of action, such judgment is interlocutory in its nature, and not reviewable until a final judgment is rendered in the pending case.</p>

<p>Complaint. Before Judge Edwards. Eorsyth superior court. December 28, 1914.</p>

Affidavit of illegality of execution. Before Judge Fite. Whitfield superior court. October 15,-1914.

Actiou for money had and received. Before Judge Littlejohn. Lee superior court. October 9, 1914. L. B. Lott and J. B. Edwards brought their petition against E. B. Martin Sr., W. G-. Martin, and M. M. Martin, alleging as follows: The defendants are indebted to them in the sum of $5,000.

Exceptions to auditor’s report. Before Judge Bell. Fulton superior court. September 12, 1914. T. C. Miller as trustee under a deed of trust to secure the payment of an issue of bonds of the Georgia Granite Railroad Company, to the amount of fifty thousand dollars, and Venable Brothers as holders of such bonds filed an equitable petition against the railroad company, to foreclose the deed of trust, and to have the property sold to satisfy the bonds.

<p>Action for damages. Before Judge Sheppard. Tattnall superior court. September 1&, 1914.</p>

<p>Questions certified bj Court of Appeals (Cases 6097, 6098).</p>

<p>Action for damages. Before Judge Patterson. Pickens superior court. December 22, 1914.</p>

<p>Ejectment. Before Judge George. Lee superior court. January 30, 1915.</p>

<p>Complaint. Before Judge Worrill. Early superior court. January 7, 1915.</p>

<p>Action upon bond. Before Judge Brand, Gwinnett superior court. December 7, 1914.</p>

<p>Action for damages. Before Judge Jones. Babun superior court. August term, 1914.</p>

<p>Complaint. Before Judge' Patterson. Forsytli superior court. August 24, 1914.</p>

<p>Equitable petition. Before Judge Patterson. Pickens superior court. September 29, 1914.</p>

<p>Motion to strike. Before Judge Wright. Eloyd superior court. October 23, 1914.</p>

<p>Equitable petition. Before Judge Wright. Eloyd superior court. September 11, 1914.</p>

<p>Equitable petition. Before Judge Quineey. Ware superior court. December 9, 1914.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. October 26, 1914.</p>

<p>Trover. -Before Judge Hammond. McDuffie superior court. December 8, 1914.</p>

<p>Action for damages. Before Judge Mathews. Bibb superior court. December 18, 1914.</p>

<p>Trover. Before Judge Sheppard. Tattnall superior court. August 29, 1914.</p>

<p>Partition. Before Judge Meadow. Elbert superior court. October 19, 1914.</p>

<p>Partition. Before Judge Brand. Jackson superior court. October 3, 1914.</p>

<p>Action for damages. Before Judge Brand. Banks superior court. January 6, 1915.</p>

<p>Attachment. Before Judge Patterson. Milton superior court. October 9, 1914.</p>

<p>Injunction. Before Judge Patterson. Cobb superior court. March 18, 1915.</p>

<p>Certiorari. Before Judge Fite. Dade superior court. September 25, 1914.</p>

<p>Processioning. Before Judge Wright. Floyd superior court. October 20, 1914.</p>

<p>Complaint. Before Judge Worrill. Miller superior court. January 5, 1915.</p> <p>R. L. Bridges, transferee of a promissory note dated December 13, 1905, and of a mortgage given to secure its payment, brought suit upon it to the April term, 1913, of the superior court, against D. Phillips as indorser. The note upon its face was payable to D. Phillips, and was signed by George Owens, who had died, and there was no administration on his estate. The note provided for payment of attorney’s fees, and contained the usual waiver of homestead. The instrument created a lien by mortgage upon described mules and cattle. The defendant pleaded, among other defenses, that under the facts and circumstances of the execution of the note he was an accommodation indorser, and consequently a mere surety; that the bank to which the note was transferred, and which in turn transferred it to the plaintiff, loaned to Owens the money for which it was given, and the defendant .received no consideration whatever for signing the note; and that the bank failed to record the mortgage, and thereby increased the surety’s risk and discharged him from liability on the note.</p> <p>The jury returned a verdict for the plaintiff for $100 principal, $70.33 interest, and $17.03 attorney’s fees. The defendant made a motion for a new trial, which was overruled.</p>

<p>Injunction. Before Judge Conyers. Jeff. Davis superior court. December 19, 1914.</p>

<p>Temporary alimony. Before Judge Sheppard. Tattnall superior court. June 15, 1915.</p>

<p>Petition for injunction. Before Judge Beid. Clayton superior court. March 27, 1915.</p>

<p>Appeal from probate of will. Before Judge Mathews. Bibb superior court. January 30, 1915.</p>

<p>Money rule. Before Judge Walker. Wilkes superior court. November 4, 1914.</p>

<p>Action for damages. Before Judge Wright. Walker superior court. December 31, 1914.</p>

Complaint for land. Before Judge Larsen. Houston superior court. December 21, 1914. W. B. Kemp, as administrator of the estate of J. A. Hammock, brought suit, in March, 1912, against Jenks Hammock to recover a described tract of land as a part of that estate. Plaintiff’s intestate died in May, 1895. At his death he left a widow and one daughter, Mrs. Jennie Kemp, wife of W. B. Kemp. Mrs. Kemp died in August, 1905, and Mrs. J. A. Hammock died in 1909.

<p>Equitable petition. Before Judge Bell. Fulton superior court. September 1, 1914.</p>

<p>Section 33 of the tax act of 1909 (Acts 1909, p. 50), which imposes a tax “Upon every manufacturer of tobacco, and upon every wholesale and . retail dealer in tobacco, who redeems, or offers to redeem, any tags or labels sold or distributed or given with tobacco sale, the sum of two hundred dollars for each place of business in this State, where such tags or labels are redeemed,” is void because violative of article 7, section 2, paragraph. 1 of the constitution of Georgia (Civil Code, § 6553), which provides that taxes of this character shall be uniform upon the same class of subjects.</p>

<p>Action for damages. Before Judge Reid. DeKalb superior court. January 2, 1915.</p>

<p>Action upon insurance policy. Before Judge Charlton. Chat-ham superior court. December 7, 1914.</p>

<p>Probate of will. Before Judge Meadow: Madison su]Derior court. September 18, 1914.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. November 5, 1914.</p>

Action upon bond. Before Judge Hammond. Richmond superior court. October 15, 1914.

<p>Actions for damages. Before Judge Fite; Whitfield superior court. July term, 1914. '</p>

<p>Trover. Before Judge Patterson. Forsyth superior court. August 25, 1914.</p>

<p>Action upon insurance policy. Before Judge Wright. Chattooga superior court. ' September 15, 1914.</p> <p>The bill of exceptions assigns error upon a judgment granting a nonsuit. The action was by M. J. Hughes, suing for the use of S. A. Hale and J. Gr. Davis, upon a fire-insurance policy for an alleged loss covered by the policy. The insurance policy covered a certain building, and purported to “insure S.. A. Hale for the term of-one year” from the date of the policy, and contained, among-others, the following provisions: “This entire policy, unless otherwise provided by agreement endorsed hereon, or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” The motion for nonsuit was upon the ground “that additional insurance had been taken out by Mr. Hughes without the consent of the defendant company, and that this voided the policy.” So far as material to be stated, evidence to the following effect was introduced on the trial: S. A. Hale owned the property at the time the policy of insurance was issued. He made an executory contract for the sale of the property to J. G-. Davis, and issued to Davis a bond for title, conditioned to convey the property upon payment of the purchase-price in the future, and admitted Davis into possession. The transaction was duly reported to the agents of the insurance company who issued the policy, and they made and signed the following entry on the policy: “For value received policy No. 387 is transferred to J. G. Davis, payable to S. A. Hale as his interest may appear.” Subsequently Davis made a sale of his interest in the property to M. J. Hughes at an advanced price, and the latter was admitted into possession under a bond for title. This transaction was reported to the agents of the insurance company, who made and signed the following entry upon the policy: “This is to certify that policy No. 387 is this day transferred to M. J. Hughes, payable to S. A. Hale and J. T. [G. ?] Davis as their interests may appear, and reports sent to company.” After Hughes became the purchaser he made improvements on the property and paid off the amount he owed to Davis on the purchase-price, but continued to carry the debt owed to Hale. After making his purchase, Hughes, without the knowledge or consent of Hale, Davis, or the insurance company, procured another insurance policy on the property in a different company, in which policy he was'-named as the insured. After this insurance was procured the fire occurred, which was before the date mentioned in the first policy as the time for its expiration. It was the insurance thus procured by Hughes that the defendant company insisted produced an avoidance of the. contract of insurance with Hale. On the question the trial judge held with the defendant and granted a nonsuit.</p>

<p>Complaint. Before Judge Littlejohn. Macon superior court. November 21, 1914.</p>

<p>Action for damages. Before Judge Edwards. Haralson superior court. December 26, 1914.</p>

<p>Action for money had. and received. Before Judge Thomas. Decatur superior court. November 11, 1914.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. December 12, 1914.</p>

<p>Action for damages. Before Judge Rawlings. Toombs superior court. December 21, 1914.</p>

<p>Buie. ■ Before Judge Bawlings. Emanuel superior court. December 23, 1914.</p>

<p>Complaint. Before Judge Sheppard. Tattnall superior court. August 29, 1914.</p>

<p>' Action for damages. Before Judge Mathews. Houston superior court. October 20, 1914.</p>

Equitable petition — interventions. Before Judge Thomas. Lowndes superior court. September 12, 1914.

Complaint. Before Judge Larsen. Twiggs superior court. October 15, 1914. Ward-Truitt Company brought suit upon certain promissory notes dated December 21, 1911, against S. A. Bryan and C. B. Lamb as partners in the name of Bryan and Lamb.

<p>Action for damages. Before Judge Fite. Bartow superior court. ' January 13, 1915.</p>

Petition for injunction. Before Judge Ellis. ' Fulton superior court. May 1, 1915. On the 9th day of April, 1915, the City pf Atlanta, through its governing body, adopted an ordinance, to take effect after five days, ■which in substance was as follows: Section 1.

Action upon insurance policy. Before Judge Ellis. Fulton superior court. December 19, 1914. Jake Goldberg brought suit against Provident Washington Insurance Company, upon a fire-insurance policy covering a stock of merchandise, alleging a total loss of the stock covered by the policy.

<p>Equitable petition. Before Judge Ellis. Fulton superior court. January 5, 1915.</p>

<p>1. The provision of the constitution of Georgia inhibiting the delegation by the legislature to any county of the right to levy a tax for any purpose except for those specified in art. 7, sec. 6, par. 2, among which purposes is that of providing for sanitation, is not offended by an act authorizing the appropriation of funds for carrying on and aiding in the work of the eradication of cattle-ticks and the suppression of contagious and infectious diseases of live stock. The expression, “provide for necessary sanitation,” is sufficiently comprehensive to authorize the raising and the expenditure of money for the purposes within the purview of the statute referred to.</p> <p>2. The words, “to pay the county police, and to provide for necessary sanitation,” were not stricken from art. 7, sec. 6, par. 2, of the constitution (Civil Code, ■§ 6562) by the amendment proposed by the act of August 4, 1910 (Acts 1910, p. 33). The only change made in this paragraph of the constitution was the elimination of the words, “in instructing children in the elementary branches of an English education . only.”</p>

<p>Injunction. Before Judge Patterson. Fulton superior court, January 18, 1915.</p>

Appeal. Before'Judge Hawkins — motion for new trial before Judge Larsen. Laurens superior court. ■ September 15, 1914. Claude Shewmake, W. W. Eobinson, and S. T. Hall propounded for probate in solemn form two documents as constituting the last will and testament of Hal P. Shewmake, who died on November 25, 1913.

Injunction. Before Judge Eite. Murray superior court. October 6, 1915. . J. H. O’Neill and four other-persons, alleging themselves to be citizens and taxpayers of Murray county, filed their equitable petition against D. Ii. Dunn, T. M. Hemphill, and -J. A. McGhee, composing the board of roads and revenues of Murray county, and H. J. Carr & Company.

<p>Injunction. Before Judge Fite. Murray superior court. October 6, 1915.</p>

<p>Indictment for murder. Before Judge Park. Hancock superior court. November 3, 1915.</p>

<p>Indictment for murder. Before Judge George. Wilcox superior court. November 17, 1915.</p>

<p>Indictment for murder. Before Judge Thomas. Berrien superior court. December 1, 1915.</p>

<p>Indictment for murder. Before Judge Freeman. Meriwether superior court. December 15, 1915.</p>

<p>Indictment for murder. Before Judge Worrill. Miller superior court. December 30, 1915.</p>

<p>1. The term of office of a county game and fish warden is the same as that of the State game and fish commissioner, as to its begininng and duration, under the act of 1911 (Acts 1911, p. 137). Upon the resignation of a county game warden his successor is appointed for the unexpired term.</p> <p>2. Where there is a vacancy in the office of county game warden, caused by the resignation of the incumbent, the successor of the warden who has resigned holds the office for only the rest of the unexpired term, notwithstanding it may be recited in the certificate of appointment that he is to hold for two years from the date of the certificate.</p>

<p>1. Where the court correctly instructed the jury as to the issues between the State and the accused, it furnishes no reason for a new trial that, without request therefor, he did not refer to the fact that counsel assisting the solicitor-general, in his opening statement to the jury, informed them that the State contended that the killing was the result of a conspiracy, though there may have been no evidence introduced to sustain such contention,</p> <p>2. Where the court instructed the jury that the law presumes the accused to be innocent, and that such presumption remains with him and protects him and prevents his conviction unless removed by evidence which excludes every reasonable doubt from the minds of the jury “as to his innocence,” this inadvertent use of the word innocence instead of guilt,, in the charge as to reasonable doubt, will furnish no cause for a new, trial, where the meaning of the court is apparent; the instruction, in effect, informing the jury that there could be no conviction if they’ entertained a reasonable doubt as to whether the accused was innocent or guilty, and shortly afterwards another instruction having been given that the jury could not legally convict the accused unless they were convinced beyond a reasonable doubt of every fact essential to establish guilt. Wilson v. State, 66 Ga. 591; Stewart v. Bilis, 130 Ga. 685 (5), 688 (61 S. E. 597); Perdue v. State, 135 Ga. 277 (69 S. E. 184); Taylor v. State', 138 Ga. 826 (3) (76 S. E. 3'47),</p> <p>3. Under the facts of the ease, the failure of the court to sustain the objection of counsel for the accused to an expression used in argument by the solicitor-general does not constitute reversible error.</p> <p>4. The court did not err in failing to charge the jury, of his own motion and without request therefor, that the character of the accused had not been put in evidence, and that they should not allow any of the evidence in regard to alleged bad treatment of his wife by the accused to influence them in any way in passing on the casé, except as such testimony might tend to show the frame of mind on the part of the deceased toward the accused, and on the part of the accused toward the deceased, who was a brother of the former wife, of the accused.</p> <p>5. Where counsel for the defendant in a criminal case did not introduce evidence as to his general good character, but counsel for the State discussed the character of the accused as indicated by certain evidence which was admitted, it furnished no ground for reversal that the presiding judge overruled the motion for a new trial, in connection with one ground of which affidavits of the good character of the convicted person were set forth, and also written requests from eleven members of the jury, and from the widow of the person slain, that a new trial should be granted, where the evidence authorized a conviction, and no cause for a reversal was shown for any other reason.</p> <p>6. 'The evidence was sufficient to authorize the verdict. The other grounds of the motion for a new trial, not herein specially discussed, were without merit) and there was no error in overruling the motion for a new trial.</p>

<p>The jurisdiction of the judges of the superior courts is coextensive with the limits of the State. If on account of sickness in the family of a judge he is prevented from holding one of the courts of his circuit, it is competent for a judge of the superior court of another circuit to preside in his stead in that court, without an order of the Governor.</p>

<p>Lien foreclosure. Before Judge Jones. Hall superior court. April 15, 1915.</p>

<p>Motion, for new trial. Before Judge Patterson. Cobb superior court. March 13, 1915.</p>

<p>Action for damages. Before Judge Patterson. Cobb superior court. January 20, 1915.</p>

<p>Complaint. Before Judge Meadow. Franklin superior court. July 31, 1915.</p>

<p>Complaint. Before Judge Brand. Gwinnett superior court. March 11,1915.</p>

<p>Action for damages. Before Judge Brand. Jackson superior court. January 6, 1915.</p>

<p>Action for damages. Before Judge Brand. Oconee superior court. August 14, 1915.</p>

<p>Money rule. Before Judge Brand. Banks superior court. June 6, 1915.</p>

<p>Complaint. Before Judge Fite. Catoosa superior court. March 10, 1915.</p>