Volume 145 — Georgia Reports

Petition for injunction; from Bibb. Motion to dismiss. James E. Laidler was the owner of certain promissory notes made by Mrs. Annie L. Subers, in which he was named as payee. He was also the grantee in a deed conveying described land in a city, on which there was a dwelling; the deed having been executed for the purpose of securing the notes. One of the notes was for a named sum as principal, with interest from maturity.

<p>Attachment. Before Judge Meadow. Elbert superior court. July 15, 1915.</p>

<p>Indictment for mnrder. Before Judge Eite. Whitfield superior court. December 10, 1915.</p>

<p>1. On the trial of one for the murder of his wife it was competent, as against an objection on the grounds of irrelevancy and of tendency to prejudice the jury, for the sheriff to testify that while the defendant was in his custody by virtue of a warrant issued on complaint of the wife, charging him with the offense of assault with intent to murder her, the witness exhibited to the defendant the warrant and also the wife’s petition for habeas corpus for the possession of their minor child, as tending to show motive on the part of the defendant to kill his wife, it further appearing that the homicide was committed a few hours thereafter.</p> <p>2. On the trial of one for murder it was irrelevant, on cross-examination of a witness, who testified that he was present at the scene of the homicide, and who had narrated the conduct of the deceased, to ask whether the witness did not have a pistol oh that occasion; it not appearing that the witness had any connection with the circumstances attending the homicide, and the sole ground for the admission of the testimony being, as stated, that it was to show the animus of the witness towards the defendant.</p> <p>3. Counsel for the defendant propounded to a witness the question: “You determine a man is sane or insane upon whether he knows right from wrong; that is your rule?” Counsel had asked the same question a number of times, and the witness was apparently endeavoring to answer counsel willingly and honestly. The witness answered the question when last propounded, “Yes, sir, and by his acts.” Whereupon the court asked counsel, “That is the legal standard to test these questions, is it not?” To which counsel replied, “Yes, sir, as to whether he is sane or not; but there are exceptions to that rule.” The court fully charged the law of insanity, and no exception is taken to the accuracy or completeness of the instruction of law. In view of the attendant circumstances, the propounding of the question by the court to counsel is not ground for new trial.</p> <p>4. The evidence did not authorize an instruction on the law of voluntary manslaughter.</p> <p>5. The verdict is supported by the evidence.</p>

<p>Indictment lor murder. Before Judge Cox. Decatur superior court. November 19, 1915.</p>

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

Original application for writ of prohibition, etc. Two pending causes were consolidated in Fulton superior court as an equitable action, viz.: Wright, insurance commissioner, v. Empire Life Insurance Company, wherein the affairs of the insurance company were placed within the control of the plaintiff, under the act of 1912 (Ga. L. 1912, p. 119) as amended by the act of 1914 (Ga.

<p>Complaint for land. Before Judge Walker. Wilkes superior court. May 5, 1915.</p>

<p>Injunction. Before Judge Jones. Union superior court. December 4, 1915.</p>

<p>Action for damages. Before Judge Jones. Habersham superior court. March 4, 1915.</p>

Validation of municipal bonds. Before Judge Bartlett. Haralson superior court. July .30, 1915. The solicitor-general, upon application of the mayor and council of the City of Tallapoosa, instituted a proceeding in the name of the State, under the Civil Code, § 440 et seq., to validate certain bonds, after an election had been held in the city to determine whether the bonds should be issued.

<p>Temporary alimony. Before Judge Searcy. Fayette superior court. September 30, 1915.</p>

<p>Certified questions; from Court of Appeals (Cases 6669, 6783).</p> <p>Deal & Benfroe, H. B. Strange, and B. T. Bawlings, for plaintiff in error (Deal).</p>

<p>Certified question; from Court of Appeals (Case 6335).</p>

<p>1. On the trial of one charged with murder the defendants’s motive for the homicide is always relevant. The testimony relating to the defendant’s motive, to which objection was made, was properly received.</p> <p>2. Where the weapon used to kill the decedent was a rock, which was introduced in evidence but not described in the’ brief of evidence, this court can not say that the evidence did not warrant the following charge: “You can consider whether or not the rock was a weapon likely to produce death in the way the evidence disclosed that it was handled by the defendant, if the evidence does show it. If, gentlemen, you should conclude from the facts in this case that the defendant killed the deceased with a rock, and that the rock was a weapon likely to produce death in the hands of the defendant in the way and manner the defendant used it, then, gentlemen, the law would presume an intention to kill.”</p> <p>3. The evidence did not authorize a charge on voluntary manslaughter.</p> <p>4. The verdict is supported by the evidence.</p>

<p>Indictment for murder; from Meriwether. Motion to dismiss.</p>

<p>1. The accused being on trial for the murder of his wife, the testimony of an eye-witness to the effect that he shot another woman just before shooting his wife, the two acts being performed so nearly in point of time as to make the first shooting a part of the res gestes of the act for which the accused was indicted, was admissible.</p> <p>(a) Besides, it would seem that such evidence was admissible to show the animus of the defendant, who claimed in his statement that when he fired the shot which resulted in the death of his wife, he intended to shoot another person who was making an assault upon his wife with an ax.</p> <p>2. There is no merit in the ground of the motion complaining that the examination by the court of a witness introduced by the State was prejudicial to the accused.</p> <p>3. The court did not err in charging the jury as follows: “A reasonable doubt I charge you to be a doubt for which you can give a reason. You have no right to create for yourselves a vague or fanciful doubt in order to acquit the defendant, but the doubt must be one reasonably and fairly entertained on the part of the jury, one that grows out of the testimony or the lack of testimony and leaves the minds of the jury wavering and uncertain, not satisfied.”</p> <p>4. The court did not err in charging the jury as follows: “If you find from the evidence that the defendant committed the homicide alleged, and if, from the evidence establishing the homicide, you find no facts of extenuation or mitigation, you would have the right to imply a felonious killing.”</p> <p>5. -Where the defendant claimed that when he fired the shot which resulted in the death of his wife he did so intending to shoot one who was making a felonious assault upon his wife, manifestly it was not error for the court to instruct the jury that if the prisoner when he took the life of the decedent did so without any intention to do so, but did so in-firing at some other person who was in the act of committing a felonious assault upon her, the defendant should be acquitted.</p> <p>6. Failure of the court to present, in the course of the instructions to the jury, a theory of the case which- is found not in the evidence but only • in the statement of the accused is not ground for a new trial, where there was on request in writing to charge upon such a theory.</p>

Indictment for murder. Before Judge Gilbert. Harris superior court. December 18, 1915. West Story was tried for the offense of murder, it being alleged in the indictment that he unlawfully killed one Cherry Huling by. shooting her with a gun. The jury returned a verdict of guilty without a recommendation, and the defendant was in due course sentenced to be hanged. He excepted to the refusal of a new trial.

<p>1. Under section 3094 of the Civil Code of 1910, the payment of costs and giving bond and security for all future costs and damages is a prerequisite to entering an appeal to the superior court from the return of the committee and judgment of the ordinary thereon, under sections 3092 et seq., to determine whether the person named in the commission is subject to be committed to the State Sanitarium.</p> <p>(o) Section 3094 of the Civil Code of 1910 is not modified by section 5010, so as to allow an appeal to the superior court without paying costs and giving bond by one who has been declared a lunatic, and who has made a pauper affidavit that owing to poverty he is unable to pay the cost or give security as required by law.</p> <p>(6) Whether habeas corpus is an available remedy in a case like the instant one is not decided.</p> <p>2. The court did not err in denying the writ of habeas corpus.</p>

<p>Complaint for land. Before Judge Jones. Hall superior court. April 25, 1915.</p>

<p>Petition for injunction. Before Judge Jones. Union superior court. October 6, 1915.</p>

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

<p>Petition for injunction. Before Judge Jones. Lumpkin superior court. January 6, 1916.</p>

<p>Injunction. Before Judge Patterson. Gilmer superior court. October 12, 1915.</p>

<p>Equitable petition. Before Judge Freeman. Heard superior court. June 19, 1915.</p>

<p>Petition for injunction. Before Judge Gilbert. Harris superior court. July 9, 1915.</p>

<p>Temporary alimony. Before Judge Pendleton. Fulton superior court. June 24, 1915.</p>

<p>1. Where a fugitive from justice from the State of Missouri was convicted of a crime in a United States district court in the State of Alabama, and was committed to the United States penitentiary in Georgia to serve his sentence, upon his release therefrom at the expiration of such term, upon requisition from the Governor of Missouri, the Governor of Georgia could issue his warrant and could have such person arrested for rendition to the demanding State.</p> <p>2. Under such facts the person so arrested as a fugitive from justice was not entitled to a discharge from custody by writ of habeas corpus on the ground that he did not voluntarily come into the State of Georgia as a fugitive.</p>

<p>In a suit for permanent and temporary alimony against a husband, an order was passed requiring him to pay to the wife $20 per month as temporary alimony for herself and minor children. He failed to pay such amount for about two months, and a rule was taken against him, requiring him to show cause why he should, not be attached for contempt. He showed for cause his pecuniary inability to make the payments, and also alleged that the original order was improvidentlv granted, and prayed that it be modified. On the hearing the defendant showed by evidence that his pecuniary condition, his earnings, and his earning capacity were such that he was unable to make the payments required by the order allowing temporary alimony. The plaintiff introduced no evidence in rebuttal. The court ordered that the defendant should within ten days pay the sum of $80, the amount of temporary alimony which had then accrued under the former order, or in default thereof should be committed to jail; and also continued the former order of force. Held, that this was error. Under the uncontradicted evidence, the court should have modified the former order.</p>

<p>1. The description of land in a contract of sale is sufficiently definite where the premises are so described as to indicate the grantor’s intention to sell a particular lot of land. Where the contract indicates that a particular tract is intended to be conveyed, its practical identification can be proved by extrinsic evidence.</p> <p>(a) The description of the property mentioned in the contract of sale, appearing in the first division of the opinion, is sufficiently definite to form the basis of a suit for recovery of damages from a breach of the contract.</p> <p>2. In a suit by a vendor against a vendee for a breach of contract for the sale of real estate, where the description of the land in the contract is sufficiently definite, it is competent to amend the petition by alleging a fuller description indicative of the adminicular proof relied on to make a practical application of the description to its. subject-matter.</p> <p>(a) The amendment in this case contains an amplification of the description of the land as demonstrative that the description in the contract could only apply to one tract of land, and does not engraft upon the contract additional words of description.</p> <p>3. The measure of damages for a breach of contract of sale "of land is the difference between the contract price and the market value of the land at the time of the breach. This rule for the measure of damages, as enunicated in Cowdery v. Greenlee, 126 Ga. 786 (55 S. E. 918, 8 L. R. A. (N. S.) 137), is not in conflict with the rulings in Ansley v. Green, 82 Ga. 181 (7 S. E. 921), and Green v. Ansley, 92 Ga. 647 (19 S. E. 53, 44 Am. St. R. 110).</p>

<p>1. If the evidence be sufficient to raise a theory of voluntary manslaughter, a failure to instruct the jury as to the law applicable thereto requires a reversal of the judgment refusing a new trial.</p> <p>(a) Where the evidence presented a theory that after an interchange of words the decedent struck the defendant with a weapon not shown to be deadly, partially knocking him down, and the accused immediately fired upon him with a pistol, inflicting a mortal wound, a charge on the law of manslaughter was applicable.</p> <p>2. On the trial of a defendant under an indictment for murder, both of his counsel in their argument insisted that the homicide was justifiable, though one of them suggested that the jury might be instructed by the court on the law of voluntary manslaughter. Before beginning his charge the court had a conference with counsel, in which they insisted that the homicide was justifiable, and in such conference they did not ask and refused to request an instruction on manslaughter. The court was of the opinion that a charge on voluntary manslaughter was not authorized by the evidence, and so told counsel, but offered to instruct the jury on that subject if counsel would consent or request it. Counsel refused to do this, and the court did not charge on the subject. Held, that this occurrence did not amount to a waiver by counsel of the duty of the court to charge the law of voluntary manslaughter, if the evidence demanded such a charge.</p> <p>3. The exceptions to certain excerpts from the charge concern more particularly verbal niceties of expression rather than inaccuracies of statements of the law. They are not of a character which affected the fairness of the trial, and do not require special notice.</p>

Indictment for rape. Before Judge Bartlett. Douglas superior court. January 12, 1916. F. W. Jeffers was tried upon an indictment charging him with the offense of rape; for that he did have carnal knowledge of Bessie Cook, forcibly and against her will. She was about 13 years old, had been an inmate of the Orphans’ Home at Decatur, Ga., and had been taken to the home of the accused by permission of the authorities at the orphanage.

<p>Complaint. Before Judge Patterson. Cobb superior court. January 13, 1915.</p>

<p>Complaint for land. Before Judge Patterson. Cherokee superior court. April 29, 1915.</p>

<p>Action for damages. Before Judge Patterson. Cobb superior court. June 3, 1915.</p>

<p>Injunction. Before Judge Fite. Gordon superior court. August 30,1915.</p>

<p>Where a bill of exceptions is sued out to review a judgment refusing an interlocutory injunction, which affirmatively discloses that it does not contain all the evidence introduced at the trial, and that material parts of the evidence are not contained therein, and where such omitted evidence is not before this court, the bill of exceptions will be dismissed, where the correctness of the judgment sought to be reviewed is dependent on the evidence.</p>

<p>Petition for injunction. Before Judge Wright. Floyd superior court. July 23, 1915.</p>

<p>1. Where one as administratrix admits owing money on certain promissory notes made by her intestate in his lifetime, and there are two claimants of the legal title to the notes, and the claims are of such a character as to render it doubtful or dangerous for her to pay the money to either claimant, she may by equitable petition require the claimants to interplead.</p> <p>2. Where the administratrix resides in one county and the two rival claimants in another, the superior court-'of the county of the residence of the latter has jurisdiction of a suit brought by the administratrix to compel them to interplead, and to enjoin a suit brought by one of them against her to recover the amount of the notes, which is being prosecuted in the county of her residence.</p> <p>3. It was error, under the pleadings and evidence in this case, to refuse the injunction.</p>

<p>Temporary alimony. Before Judge Searcy. Butts superior court. December 3, 1915.</p>

<p>Petition for injunction. Before Judge Littlejohn. Sumter superior court. December 31, 1915.</p>

<p>Petition, for injunction. Before Judge Thomas. Thomas superior court. October 21, 1915.</p>

<p>Under the ruling in the case of Heery v. Heery, 144 Ga. 467 (87 S. E. 472), the court below erred in refusing the interlocutory injunction; and also erred at the hearing in term in dismissing the petition upon demurrer.</p>

<p>Injunction. Before Judge. Charlton. Chatham superior court, August 21, 191.5.</p>

<p>Equitable petition. Before Judge Jones. Habersham superior court. May 4, 1915.</p> <p>J. E. J. Erankum brought suit against Ellis Lovell and his ' wife, L. C. Lovell, alleging: The defendants, being indebted to one Craig in the sum of a hundred dollars, secured by deed to their land, applied to the plaintiff to borrow that sum with which to pay Craig. It was agreed between plaintiff and defendants, that, on the former advancing the money for them, they would make to him a deed to the same land, and he in turn would execute to them a bond for title conditioned to reconvey the land to them on payment of the amount advanced, with interest at eight per cent., in one year from the date of the loan. The plaintiff paid the money to Craig, bnt the defendants refused to execute to him the deed pursuant to their contract. He alleged, that, “by reason of the breach of said contract on the part of the defendants, his debt is due and collectible, and he hereby sues for same; and that on account of said breach petitioner has had to go to large expense in the loss of time and employment of counsel to obtain his redress, in the amount of fifty dollars or other large sum, and that defendants, in equity and good conscience, should he made to pay same; and he hereby sues for said expense.” He prayed for an injunction against the defendants’ incumbering the land, and'for such further relief to which as he might be entitled. He amended his petition by alleging, that, believing that the land belonged to Ellis Lovell in severalty, he advanced the money to pay off the debt contracted by him and his wife, which was secured by deed, and that Mrs. Lovell stood by and saw plaintiff pay over the money for that purpose, and therefore he was entitled in equity to a lien against her interest in the property. If Mrs. Lovell is not bound, then he prays judgment against Ellis Lovell for the amount advanced, and that such judgment be declared to be a lien in the nature of purchase-money against an undivided half interest in the land.</p> <p>In their plea the defendants denied the plaintiff’s allegations with reference to the procurement of the loan, and alleged, that William McClure, being indebted to Ellis Lovell for the labor of himself and his son, agreed to discharge the debt of defendants to Craig, and to that end McClure borrowed the money from petitioner; that the loan was not extended to defendants, but to McClure; and that they had paid McClure the amount that he procured from the plaintiff and paid to the defendants, and with which they discharged the.lien upon their land. A verdict was returned for the plaintiff for the full amount of .the principal, interest, and attorney’s fees, with a finding that the amount of them be decreed to be a special lien upon the land.</p>

<p>Motion to set aside verdict and judgment. Before Judge Patterson. Cobb superior court. May 5, 1915.</p>

<p>Complaint. Before Judge Patterson. Milton superior court. April 27, 1915.</p>

<p>Temporary alimony. Before Judge Patterson. Forsyth superior court. August 24, 1915.</p>

Petition for injunction. Before Judge Wright. Floyd superior court. July 14, 1915.

Action upon bond. Before Judge Gilbert. Muscogee superior court. March 27, 1914.

Action upon bond. Before Judge Gilbert. Muscogee superior court. March 27, 1914.

<p>Injunction. Before Judge Patterson. Milton superior court. January 28, 1916.</p>

Action for damages. Before Judge Park. Franklin superior court. May 14, 1915. 'Darby Pierce, by his next friend, brought suit against the Southern Cotton Oil Company, to recover damages for a personal injury. The defendant excepted to the overruling of its general demurrer. So much of the petition as undertakes to state the defendant’s liability is as follows: “3rd.

<p>1. A traveler on the public highway, exercising due care, although he knows there is some danger in driving over a defective bridge, may recover for injuries thus sustained, unless the danger is obviously of such a character that driving over the bridge, in and of itself, amounts to a want of ordinary care.</p> <p>(a.) The charge complained of lacked the qualification that if the bridge was so obviously dangerous that crossing on it would amount to a want of ordinary care, the plaintiff could not recover.</p> <p>2. A bridge spanning- a ravine which is crossed by a public road, and constituting a portion of such road, is a county bridge which the county authorities are under duty to keep in repair.</p> <p>3. In order for a losing party to successfully complain of the court’s failure to instruct the jury on the law of impeachment of witnesses, it must appear that an appropriate and timely written request was made for such instruction.</p>

<p>Equitable petition. Before Judge Meadow. Madison superior court. July 26, 1915.</p>

<p>Action, to establish lost deed. Before Judge Jones. Dawson superior court. August term, 1915.</p>

<p>Complaint. Before Judge Eite. Murray superior court. May 13, 1915.</p>

<p>Petition for injunction. Before Judge Wrigbt. Chattooga superior court. November 6, 1915.</p>

<p>Trover. Before Judge Searcy. Monroe superior court. July 8, 1915.</p>

<p>1. In 1901 a testator executed his will. By the first item he devised certain land to his two grandchildren for life. By the second item he provided for a remainder over as to such land. By the third item he bequeathed to the two grandchildren the dividends on certain railroad stock, so long as it should remain in the hands of his executor. The fourth, fifth, and seventh items were as follows: “4. To my said grandchildren above named I give and bequeath the interest on the following amounts of cash money now on deposit, as follows: three (3000) thousand dollars with I. C. Plant’s Son, and two (2000) thousand at Exchange Bank, both at Macon, Ga., as shown by the deposit book issued to me by said banks; and my executor is hereby authorized and empowered to receipt fully said railroad company for all dividends due on said stock described in item 3 of this will, and to pay same to my said grandchildren. He, my executor, is also hereby authorized' and empowered to receive from said banks the interest on the amounts of cash deposited as aforesaid with the Exchange Bank and with I. C. Plant’s Son, and receipt them fully therefor, and to pay the interest so received to my said grandchildren. My executor is also authorized, in the event said banks should become unsafe or get in any financial embarrassment, or should they cease to pay interest at the rate of five 5%, to withdraw said amounts of cash from said banks above mentioned, to wit: I. C. Plant’s Son and Exchange Bank, and to place the same in any other safe and reliable bank paying interest on deposits. 5. One year after my death, my said grandchildren shall have to be equally divided between them one thousand ($1000) dollars out of the bank of I. C. Plant’s Son, and one thousand ($1000) every two (2) years thereafter, until the amounts mentioned in item 4 of this will are exhausted. In order to carry out the previous [provisions?] of this item, my executor is hereby authorized to draw said amounts in the manner above mentioned in this item, and to pay the same over to my said grandchildren. 7. In the event of the death of either of my said grandchildren without issue, the income and legacies mentioned in items (3) three, four (4) and five (5) of this will shall go to and become the income and legacies of the survivor — the one living. If both should die without issue, then to revert to and become a part of my estate.” By the tenth item he left to his son all of his property not otherwise “conveyed by this will, both real and personal, including lands, money, and all other personal or real property of which I am seized and possessed.” During the lifetime of the testator the two banks mentioned failed. At that time, he had on deposit in the bank of I. C. Plant’s Son the sum of $3288.75, of which $3000 was on time deposit, the balance being interest and a general deposit. He had on deposit in the Exchange Bank at the time of its failure the sum of $5758.60, of which amount the sum of $5500 was on time deposit, the balance being interest and general deposits. Certain amounts were paid by the receivers of these banks during his lifetime. After the death of the testator," certain other amounts, less than the whole amounts of the deposits, were paid by the receivers. Held, that the pecuniary legacies to the grandchildren of the testator provided for in the fourth and fifth items of the will were specific legacies.</p> <p>2. Regardless of the construction of the will as to whether such legacies were general or specific, there was no error in holding that the plaintiff showed no cause for injunction.</p>

<p>Petition for direction. Before Judge Gilbert. Muscogee superior court. July 14, 1915.</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. November 27, 1915.</p> <p>Otto E. Standhardt filed his equitable action against Dr. L. Sage Hardin, alleging in substance as follows: On March 30, 1915, the defendant operated on the plaintiff for the purpose of removing a hernia. The operation was so unskilfully and negligently performed as to greatly injure and damage the plaintiff, the damages being laid at $5,000. The defendant brought suit against the plaintiff in the municipal court of Atlanta for $100 for his fee for performing the operation. That court is one of limited jurisdiction, and it could not award to him the damages claimed by him (Acts 1913, pp. 145, 158). The plaintiff brought suit against the defendant in the city court of Atlanta to recover damages in the sum of $5,000 for the injury done to him. He prays, that the defendant be enjoined from prosecuting the suit in the municipal court; that the defendant be required to plead in this case, so that all of the issues may be decided in it; and that the plaintiff recover judgment for $5,000.</p> <p>The defendant demurred and answered. On the hearing of the application for an interlocutory injunction it was denied, and the plaintiff excepted. *</p>

<p>Action for damages. Before Judge Gilbert. Muscogee superior court. July 24, 1915.</p>

<p>1. In.view of the act of August 18, 1913 (Acts 1913, p. 977), the contract which was made between the Mayor and Council of the City of Macon and the Central of Georgia Railway Company on October 27, 1914, and the act of July 30, 1915 (Acts 1915, p. 696), and under the pleadings and evidence in the case, there was no abuse of discretion in granting an interlocutory injunction restraining the Central of Georgia Railway Company from so closing up Pine street in the City of Macon as to interfere with the hauling by the plaintiff company of its manufactured products into the city over said street, and with free access to and egress from its plant.</p> <p>(a) The presiding judge at the same time provided that the injunction should not prevent the defendant from doing such work as could be done under the present plan, or any modification thereof, as would not interfere with the free use of so much of the street as would be necessary to enable the plaintiff to do such hauling or to have such access to and egress from its plant.</p> <p>2. Evidence tending to show that the construction of the ■ underpass as contemplated would decrease the market value of the plaintiff’s property, and would render it impossible to haul more than half the amount of its products at a load through such underpass, as compared with the amount which could be previously hauled, was relevant.</p> <p>(a) As against the objection urged thereto, it was not error to admit the evidence set out in the seventh and eighth assignments of error. If any part of such evidence was objectionable for any reason, or if the evidence set out in the ninth assignment of error was subject to objection, the admission of such evidence on the hearing of the application for interlocutory injunction was not sufficient to require a reversal of the grant of such injunction.</p>

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

<p>Eviction. Before Judge Eite. Catoosa superior court. March 10, 1915.</p>

<p>Action for damages. Before Judge George. Ben Hill superior court. April 28, 191-5.</p>

<p>Complaint. Before Judge George. Dooly superior court. August 2, 1915.</p>

<p>Petition; from Ben Hill superior court. Motion to dismiss.</p>

Claim. Before Judge Fite. Bartow superior court. July 24, 1915. Dewitt Martin executed a promissory note to L. Y. Martin, or bearer, which was negotiated several times by indorsement, and finally went into the hands of the Citizens Bank of Kingston. An action was instituted by the bank against the maker and the several indorsers, in the city court of Cartersville. A judgment was rendered in favor of the plaintiff for the principal, interest, attorney’s fees, and cost.

<p>Murder; from Jenkins superior court. Motion to dismiss.</p>

<p>Action to recover land. Before Judge Wright. Floyd superior court. July 13, 1915.</p>

<p>Certified questions; from Court of Appeals (Case 6024).</p> <p>The Court of Appeals has certified to the Supreme Court for decision the following questions:</p> <p>1. Are not the rulings in Southern Railway Co. v. Covenia, 100 Ga. 46, and Atlanta Consolidated Street Railway Company v. Arnold, 100 Ga. 566, modified by the ruling in James v. Central of Georgia Railway Company, 138 Ga. 415, so that where the petition, in a suit by a parent for damages on account of loss of services of a child two years and four months old, alleges that the child was “precocious, strong, robust, and endowed with unusual physical powers for a child of her age,” “ran on errands, helped bring in wood, swept the house, helped to attend to petitioner’s child younger than the deceased, and generally waited on petitioner, and helped in the household work, doing all of those innumerable little things to be done in a home which a child can do as effectively, or more so than a grown person,” and “contributed to petitioner’s support, and petitioner was dependent upon her,” and that the child’s services were “of the value of $3 per month,” the trial court can not, as a matter of judicial knowledge, adjudge that the child is incapable of rendering “such services as would authorize the parent to recover, for the loss of them, due to the tortious homicide of the child?”</p> <p>2. Under the ruling in James v. Central of Georgia Railway Company, supra (pages 415-418), is it not the duty of the trial judge, under such allegations as above quoted (which upon demurrer must be presumed to be true), to submit to a jury the question as to whether the child did in fact perform the services alleged, and whether they were of value?</p> <p>3. Can a court judicially know that the facts thus alleged, and by demurrer admitted to be true, are as a matter of fact untrue, because so unreasonable as to be legally impossible?</p>

<p>1. The evidence authorized the verdict.</p> <p>2. Where the court declines to allow a question to be propounded to a witness on cross-examination, intended to elicit certain information, the refusal to allow the question is not ground for new trial where on further cross-examination the same information in substance is elicited from tlie witness.</p> <p>3. A defendant was on trial for murder. The mortal wound was inflicted with a knife, the blade of which was broken in making the blow. The knife with part of the broken blade, and a piece of the blade which was broken off, were introduced in evidence. A witness was allowed to testify that the piece of the blade which was missing was about an inch and one half long. It further appeared that the witness’s estimate of the length of the missing piece was based on an opinion deduced from the physical evidence exhibited to the jury. This testimony was inadmissible as being opinion evidence founded on data before the jury, from which they were as competent to draw conclusions as the witness; but the error in admitting it under the circumstances of the case was harmless. *</p> <p>4. The circumstance whether or not the decedent had a license to carry a pistol was irrelevant to any issue in the case.</p> <p>5. This court can not review an instruction alleged to be erroneous, when the exception thereto does not set forth, literally or in substance, the language complained of, so as to convey a clear understanding of such instruction.</p> <p>6. The charge defining the fears of a reasonable man as justifying the taking of life in self-defense, as being those of “a man reasonably courageous, reasonably self-possessed and not a coward,” is not such as to require a new trial.</p>

Exceptions to auditor’s report. Before Judge Jones. Haber-sham superior court. May 4, 1915. W. H. McMillan and E. M. Yearwood brought an action against J. T. Peyton and S. C. Grant, alleging as follows: On November 13, 1905, they borrowed $5,434.75 from the Cornelia Bank, upon the accommodation indorsement of the two defendants and H. E. Loudermilk, P. E. Grant, and J. A. Yearwood,, and a mortgage on certain real estate in the counties of Habersham and White.

<p>Ejectment. Before Judge Patterson. Cobb superior court. January 14, 1915.</p>

<p>Exceptions to auditor’s report. Before Judge Eite. Murray superior court. May 14, 1915.</p>

<p>Taxation of costs. Before Judge Fite. Whitfield superior court. April 16, 1915.</p>

<p>Action for damages. Before Judge Fite. Dade superior court. July 19, 1915.</p>

<p>Action for damages. Before Judge Wright. Floyd superior court. March 25, 1915.</p>

<p>Complaint for land. Before Judge Wright., Walker superior court. January 12, 1915.</p>

<p>Where the pleadings in an action for injunction and receiver show an issue of fact between the parties, it is erroneous to enter a judgment against the defendant for costs without a verdict.</p>

<p>Traverse of return of service. Before Judge George. Dooly superior court. May 3, 1915.</p>

<p>1. Under the evidence it was not error for the court to charge the jury in the language of section 4636 of the Civil Code, which states the rule as to when equity will decree the performance of voluntary agreements and gratuitous promises.</p> <p>2. There was sufficient evidence to support the verdict.</p>

<p>1. Where a corporation claimed that one who had been its agent in certain transactions was indebted to it in a certain sum, and sent another agent to close up its account with him, and the second agent took a note evidencing the amount of the indebtedness, it was competent for the agent thus authorized (there being a dispute between him and the debtor as to the actual amount of the debt, the debtor claiming that he had evidence to show that a certain item of indebtedness should not be included in the note) to stipulate in writing that if this evidence should be discovered the debtor could use the same as against the note given; and it was not necessary to show that the authority to execute such a written agreement was itself in writing.</p> <p>2. The evidence was conflicting, but there was sufficient evidence to support the verdict as it stood after the defendant had written off the amount awarded him by the verdict.</p>

<p>Injunction. Before Judge Kent. Laurens superior court. November 4, 1915.</p>

<p>1. In case of a sale of a chattel, where the parties have reduced to writing what appears to be a complete and valid contract of sale, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements as to the quality of the chattel is inadmissible to add to, take from, or vary the written instrument.</p> <p>2. The terms of a contract for the sale of personal property may be embodied in a promissory note, and will be binding upon both parties after the note has been delivered by the maker and accepted by the payee, and the property delivered in pursuance of the contract, notwithstanding the paper was not signed by the payee.</p> <p>3. In a written contract of sale of a chattel, the writing may express warranties, excluding certain warranties which the statute implies; but if it omits to do so, the law writes into the instrument, as by implication, that the seller warrants that he has a valid title and right to sell, that the article sold is merchantable and reasonably suited to the use intended, and that he knows of no latent defects undisclosed.</p> <p>4. Where the implied warranties become a part of such written instrument, they are protected, as any other part of the paper, from change or alteration by parol.</p> <p>5. The consideration expressed in such a contract may be varied by parol evidence.</p> <p>6. If the writing does not purport to express all the terms of the contract, the terms which are omitted may he supplied by parol, if the contract is not one which the law requires to be in writing; but those which are embodied in the instrument, either by express terms or by implication, can not be added to or varied by parol.</p> <p>7. The principles announced in the opinion in Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267), do not conflict with the principle announced in the decision of Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711).</p> <p>8. Applying the law as announced in the preceding notes to the case under consideration, it was incompetent to set up and prove by parol so much of the special plea as sought to set up express warranties as to the' quality of the property, but competent to set up and prove by parol other portions of the plea, as will fully appear in the opinion.</p>

<p>Indictment for murder. Before Judge Charlton. Chatham superior court. January 3, 1916.</p>

<p>1. A deed properly attested and recorded is admissible in evidence without further proof of execution. And although a deed may not be properly attested or probated to authorize its record, nevertheless this will not prevent it from conveying title as against the grantor and his heirs. Downs v. Yonge, 17 Ga. 295; Johnson v. Jones, 87 Ga. 85, 89 (13 S. E. 261); Howard v. Russell, 104 Ga. 230, 232 (30 S. E. 802).</p> <p>2. If secondary evidence, such as a copy of a deed from the record, where the original was not properly attested or probated to authorize its admission to record, is admitted in evidence without objection, it is to be considered as evidence, and a charge or verdict may be based upon it; and such a verdict will not be set aside as being unsupported by eyidence. Goodwyn v. Goodwyn, 20 Ga. 600; Chance v. Summerford, 25 Ga. 662; Sumner v. Bryan, 54 Ga. 613; Patton v. Bank of La Fayette, 124 Ga. 965 (7), 973 (53 S. E. 664, 5 L. R. A. (N. S.) 592, 4 Ann. Cas. 639).</p> <p>3, Even if a deed from a husband to his wife, conveying land for a money consideration, falls within the provisions of the Civil Code (1910), § 3009, which declares that no contract of sale by a wife of her separate estate with her husband shall be valid unless it is allowed by order of the superior court of the county of her domicile, so that such a deed without an order of court is invalid, the right to assail its validity on this ground is personal to her and her privies in blood or estate, and can not be asserted by persons who as heirs of the husband bring an action to recover the land from one holding by a chain of title under the wife. Scaife v. Scaife, 134 Ga. 1 (67 S. E. 408). See also, in this connection, Webb v. Harris, 124 Ga. 733 (53 S. E. 247).</p> <p>•4. In such a suit by the heirs of the husband, to recover the land from one holding under the wife, the deed from the husband to the wife was admissible against the plaintiff, over the objection that it was not valid because not authorized by an order of court. No objection was made to the introduction in evidence of the certified copy of the deed on the ground that such deed was not properly attested to authorize it to be recorded.</p> <p>5. A suit having been brought by certain persons as heirs of a deceased husband, seeking to recover land from one who claimed to hold by conveyances under the wife of the plaintiff’s ancestor, and the uncontradicted evidence showing that the husband conveyed the land to his wife for a pecuniary consideration, there was no error in directing a verdict for the defendant.</p>

<p>Complaint. Before Judge Worrill. Miller superior court. January 25, 191§.</p> <p>Wilson filed his petition against Strickland, and alleged as follows: One Johnson executed a deed conveying land to secure a debt to the defendant. This deed contained a power of sale, providing that upon default by the maker of the deed the grantee, after advertising in the manner stipulated, could sell the property conveyed, and make a deed thereto to the purchaser. Johnson did default, and Strickland, after advertising as provided, put up the land for sale and knocked it off to Wilson. When Wilson demanded possession of the property, Johnson refused to surrender it, on the ground that the security deed and the note to secure the payment of which it had been given were infected with usury. This fact did not appear on the face of the note or of the deed, and Wilson had no knowledge that the debt was infected with usury. Wilson paid for the land $245.50. This money was had and received by the defendant, who gave nothing in return therefor, as the deed to defendant from Johnson was void, and the defendant could not convey anything to the purchaser under the power of sale contained in Johnson’s deed. The defendant wrongfully and fraudulently induced the plaintiff to buy, by exposing the land for sale and not giving notice of usury in the debt. Judgment against the defendant for the amount paid by the plaintiff for the land was prayed. The defendant filed a general demurrer, and at the hearing this was overruled.</p>

<p>Action for breach of contract. Before Judge Worrill. Clay superior court. January 13, 1915.</p>

<p>Complaint. Before Judge George. Wilcox superior court. January 13, 1915.</p>

<p>Equitable petition. Before Judge Beid. DeKalb superior court. April 2, 1915.</p>

<p>Habeas corpus. Before Judge Sheppard. Liberty superior court. September 21, 1915.</p>

<p>1. As a general rule, the residue of funds .produced at an execution sale, after payment of costs, is to be applied on the liens divested by the sale, in their relative priority.</p> <p>2. Although a landlord’s lien for supplies arises by virtue of the statute when the supplies are furnished, such lien can not be asserted against the teriant’s crop except by foreclosure.</p> <p>(a) Where fi. fas. issuing on common-law judgments are levied on crops grown by the defendant on rented land, and the crops are sold, and subsequently, and before the application of the proceeds of the sale to the common-law fi. fas., the landlord of the defendant forecloses his lien for supplies furnished the defendant, in a rule to distribute the money, in the absence of equitable grounds, it is erroneous to award the net funds to the landlord’s lien for supplies, in preference over the common-law fi. fas.</p>

Complaint for land. Before Judge Wright. Floyd superior court. June 24, 1918. On December 22, 1914, J. E. Stamey and others filed a petition against Bob H. McGinnis and Sam King, alleging, among other things, as follows: Four of the plaintiffs are sni juris, and the remaining three are minors who sue by their next friend. All of them are under twenty-eight years of age.

<p>Affidavit of illegality of execution. Before Judge Edwards. Haralson superior court. December 30, 1914.</p>

<p>Complaint. Before Judge Cox. Muscogee superior court. February 15, 1915.</p>

<p>Motion to set aside judgment. Before Judge George. Wilcox superior court. June 21, 1915.</p>

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

<p>Equitable petition; from Colquitt superior court. Motion to dismiss.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. April 5, 1915.</p>

<p>Complaint. Before Judge Jones. Hall superior court. February 8, 1915.</p>

<p>Appeal. Before Judge Park. Jones superior court. April 19, 1915.</p>

<p>Complaint for land. Before Judge Littlejohn. Macon superior court. July 16, 1915.</p>

<p>1. Where one loaned money to be used in the purchase of land at a sheriff’s sale, and charged interest on the loan at a usurious rate, a deed to the land thus bought, executed by the borrower to secure the payment of the notes given for the money loaned, is void; and where such notes or renewals thereof were subsequently reduced to judgment, the grantee in the security deed was not entitled to a verdict and decree giving a special lien upon the land so conveyed.</p> <p>2. The instructions authorizing the jury to find that the plaintiff have a special lien upon land conveyed under the circumstances just stated were erroneous, and the verdict pursuant to such instructions, giving to the plaintiff the special lien, must be set aside.</p>

Petition for injunction. Before Judge Charlton. Chatham superior court. August 24, 1915. Charles Levy filed his petition against M. L. Himmel & Son, and alleged in substance as follows: He has acted as representative of the defendants in Savannah and the surrounding territory during the eighteen months preceding the filing of the petition, and has made a number of sales of store fixtures manufactured by the defendants.

<p>Illegality of execution. Before Judge Wright. Chattoogasuperior court. March 9, 1915.</p> <p>An execution in favor of the Chattooga County Bank against M. W. Wimpee and W. B. Orr was levied on two mules as the property of Orr. He filed an affidavit of illegality. It denied service, waiver, or appearance and pleading by the affiant, and alleged that “the pretended entry of service was never made or authorized by the officer whose name appears as having made the same.” A demurrer was filed on the grounds, (a) that the affidavit of illegality disclosed a return of service by an officer, and the proper method of setting aside such return was by a traverse; and (&) because, as a traverse of the return, the affidavit of illegality was defective in that the officer making the return had not been made a party thereto. By amendment the' deputy sheriff, whose name appeared to be signed to the return, was made a party and ordered to be served and to appear and plead. The entry of service on the defendant, Orr, was by leaving a copy at his most notorious place of abode. It was dated February 22, 1913. The suit was in Chattooga superior court. The judgment was rendered on September 9, 1913. After a levy (made on October 27, 1914) the affidavit of illegality was interposed, dated November 2, 1914. At the March, 1915, term of court the ease came on for a hearing. The defendant Orr offered an amendment to his affidavit of illegality, in substance as follows: He had no notice that an entry of service had been made until in the fall of 1915 (evidently meaning 1914), after the September term of court, and about the time of the levy of the execution, and did not know that the deputy sheriff would deny making the entry until about the day of the levy, and only on the day of the filing of the original illegality did he learn that he could disprove the entry by the deputy sheriff. He had a good defense to the suit. He was only an accommodation surety on the note sued on, and received none of the benefits of it, and would have pleaded and proved this had he had an opportunity to do so. He had no notice that the suit would be brought on the note, and that a judgment for attorney’s fees would be taken, and would have pleaded and proved this had he had his day in court. The judgment for attorney’s fees is void, for the reason that there was no proof to sustain the judgment; and if the plaintiff was entitled to any judgment it was necessary to prove such legal notice as would authorize a verdict for attorney’s fees. This amendment was disallowed, except in so far as it related to attorney’s fees, which were directed to be written off as to the affiant. A judgment was entered which began, “Hpon hearing the demurrer filed to the affidavit of illegality,” and adjudged that, upon the plaintiff’s writing off attorney’s fees as to the defendant Orr, the affidavit of illegality be dismissed. The bill of exceptions recited that the court sustained a demurrer and an oral motion to dismiss the affidavit of illegality and the amendment, on the ground that “the same was not filed in time.” The defendant excepted.</p>

<p>Equitable petition. Before Judge Daniel. Monroe superior court. May 8, 1915.</p>

<p>A petition brought by the mother of a child, upon whom she was dependent and who contributed to her support, to recover damages of a railroad company for the negligent and tortious death of the child, which showed that the child came to his death in consequence of coming in collision with a team and wagon belonging to a private corporation which had leased a lot belonging to the railroad company near its tracks, stated no cause of action against the railroad company, the lessor of the property upon which the private corporation had erected a warehouse, no act of negligence being charged against the railroad company which contributed to the death of the plaintiff’s child, and ño causal connection appearing between the act of the railroad company, in leasing the lot of land to the private corporation which conducted a grocery business in a warehouse erected on the property, and the homicide complained of.</p>

Complaint for land. Before Judge Brand. Jackson superior court. July 9, 1915. The children of Posey Wilson brought an action against J. N. Wood, to recover a described tract of land, and to cancel certain deeds as a cloud upon their title. Before the last trial, which is the one under review, Wood departed this life, and the case proceeded against his administrator.

<p>Action for damages. Before Judge Jones. Rabun superior court. February 26, 1915.</p>

<p>Action for damages. Before Judge Patterson. Cherokee superior court. February 24, 1915.</p>

<p>Complaint. Before Judge Jones. Habersham superior court. May 29, 1916.</p>

Action for damages. Before Judge Patterson. Cobb superior court. April 27, 1915. W. A. Florence sued Mrs. Annie W. Northcutt for damages, and alleged that she had injured him in the sum of $221.91, by reason of the following facts: She resides in Florida, and is the owner of a certain building in the city of Marietta, Ga., in which he is engaged in the dry-goods business.

<p>Equitable petition. Before Judge Eite. Whitfield superior court. March 6, 1915.</p>

<p>Complaint for land. Before Judge Fite. Catoosa superior court. March 11, 1915.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. July 26, 1915.</p>

<p>Equitable petition. Before Judge Park. Baldwin superior court. February 8, 1915.</p>

Equitable petition. Before Judge Littlejohn. Sumter superior court. July 15, 1915. Miss Kate Ross brought her petition against R. G-. Christian, and prayed for a decree cancelling a certain deed in which she was the grantor and the defendant the grantee, and for other equitable relief. By this deed she conveyed for a given consideration the land therein described.

<p>Probate of will. Before Judge George. Dooly superior court. July 13, 1915.</p>

<p>Equitable petition. Before Judge Cox. Dougherty superior court. August 28, 1915.</p> <p>Alexander Hudgins and Jesse Hudgins brought their petition against Sallie B. Leary and John E. Mercer, and alleged as follows: Alexander Hudgins Sr. died in the year 1892, leaving as his heirs at law the petitioners and his widow Sallie B., who subsequently intermarried with Joseph Leary. Sallie B. Leary (then Hudgins) qualified as administratrix of the estate on December 6, 1909, and executed a bond with John E. Mercer as security. On February 1, 1910, in pursuance of an order of the court of ordinary duly granted, and after due advertisement, the administratrix exposed for sale at public outcry the property of the estate, consisting of certain described tracts of land containing in the aggregate 1062 acres. The land was duly knocked off to Mercer as the highest and best bidder for the sum of $5,200; and on the day of the sale an administratrix’s deed was duly executed, conveying the lands to him, and reciting the sum mentioned as the consideration. No part of this sum has ever been paid to the administratrix by Mercer, and the administratrix has never collected any part of it, but she has, without authority of law, extended credit to Mercer and has neglected to collect the sum bid for the land, without taking from him any security for its payment. The defendants fail and refuse to come to an accounting and settlement and to pay them their portion due from the estate, which they are advised consists solely of the sum due for the purchase-price of the land. The time is ripe for a settlement and accounting by the administratrix, and petitioners are entitled to recover of her and her surety whatever sum may be found to be due them. They pray for an accounting of the amount due them as distributees of the estate, and that they have judgment against the administratrix and Mercer as her security.</p> <p>Mrs. Leary filed no defense. Mercer submitted a demurrer and a plea and answer. His demurrer was overruled. Upon the trial the court directed a verdict in favor of petitioners for two thirds of the amount of the purchase-price of the land, with interest at seven per cent. Mercer filed a motion for a new trial, which was overruled, and he excepted.</p>

<p>Injunction. Before Judge Bell. Fulton superior court. October 29, 1915.</p>

<p>Petition for injunction. Before Judge Sheppard. Evans superior court. June 23, 1915.</p>

<p>Indictment for murder. Before Judge Brand. Oconee superior court. December 11, 1915.</p>

<p>1. The act of the legislature (Acts 1906, p. 1010) provides, among other things, for the repeal of the charter of the town of East Rome, and that before it shall become operative the question as to the passage of the law shall be submitted for ratification to the qualified voters of the municipality at a prescribed election to be held for such purpose. Held, that if at such an election the requisite number of votes be cast in favor of ratification of the law, the act contemplates that its terms will become binding and result in the repeal of the charter of the municipality from and after the date specified in the act for the law to go into effect.</p> <p>(a) In an action instituted after the repeal of the charter of the municipality, the case having been submitted to the judge for decision, and his judgment reciting: “It appearing that the town of East Rome, by legislative enactment, became a part of the City of Rome on January 1, 1907, and this suit having been filed December 24, 1907, after said town of East Rome became a part of the City of Rome and after said town of East Rome had ceased to exist,” and nothing to the contrary appearing, it will be presumed, on exception to the judgment, that the judge had evidence or admissions in open court to the effect that the act had been duly approved by the qualified voters at an election as provided for in the'act.</p> <p>2. The act referred to in the preceding note was not repealed by the act amending the charter of the town of East Rome, approved the same day (Acts 1906, p. 727).</p> <p>3. The charter of East Rome having been repealed, and all of its territory and corporate property transferred, with all of its liabilities, to the City of Rome, there was no theoretical continuance of the existence of East Rome, relatively to existing creditors, for the purpose of enabling them to collect their debts. As to creditors and all other persons, the corporation went out of existence for all purposes, and could not thereafter be sued.</p> <p>4. It was not erroneous to dismiss the action on the ground that the defendant, the alleged town of East Rome, did not exist at the time the suit was filed.</p>

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

<p>Equitable petition. Before Judge Meadow. Elbert superior court. June 28, 1915.</p>

<p>Equitable petition. Before Judge Brand. Clarke superior court. February 27, 1915.</p>

<p>Exceptions to auditor’s report. Before Judge Jones. Hall superior court. January term, 1915.</p> <p>H. S. Jaudon brought an action against the Mayor and Council of the City of Gainesville. The petition contained two counts. The first count claimed damages for a breach of contract; and the second was upon a quantum meruit, which was abandoned during the trial. In the petition it was alleged, that on February l?, 1910, the defendant, being about to improve its water-plant or system for supplying the City of Gainesville with water by establishing additional water-supply, reservoirs, pumps, and to extend the sewer system of the city and mains, made a contract with him to do the engineering work and superintend the construction of the contemplated improvements, and to pay him for the same the sum of $3,350 for such services in connection with the water-plant and extension of the water-mains, and five per cent, on the net cost of all the sewer work for his services done in connection with extending the sewer system; that the plaintiff, at the request of the defendant and in performance of his contract, incurred heavy expenditures in examining the ground and locality of the proposed improvements, making surveys, drawing plans, making estimates, and employing assistance incidental to the work, devoting his time and professional skill in making and having made under his direction and supervision surveys of the several water supplies possible, estimating cost and deciding on the best source of supply, making maps and measurements of pipe lines, and accumulating ihe necessary data for specifications for letting out bids on the work; that the system of waterworks and sources of supply and plans devised by petitioner have been substantially adopted, and are being carried out by the defendant; that after the plaintiff had incurred these expenses and devoted his time in-the preparation of the plans, the defendant repudiated its contract with him, declined to allow him to complete it, and employed others to do or finish the work it had contracted he should perform, although he offered to complete the work, and was ready and willing and able to do so; that the defendant, at the time the contract was entered into, represented that it would expend on the waterworks plant and main the sum of $40,000, and on the extension of the sewer system the sum of at least $12,500, which the defendant is now expending for these purposes; that had it allowed the plaintiff to complete his work, and had it not broken its contract with him, he would have received the sum of $3,250 on the water-plant and water-mains,- and the sum of $625 on the extension of sewers; and that the .only expense and work to be further incurred by him would have reduced his compensation from the contract not more than $1,000. Wherefore he prayed judgment in the sum of $2,875. The defendant denied substantially the allegations of the petition, and pleaded the following: The plaintiff desired to do certain work for the defendant in the way of making surveys, plans, estimates of installing the water system, and extension.of the sewer system, which work was to be done by the defendant with money derived from the sale of bonds. At the time of the negotiations between plaintiff and defendant no bonds had been issue.d; it was understood and expressly stated to plaintiff that if bonds did not carry in the election,.or if they did not (?) carry on condition that a bond commission should be created to expend the money derived from ihe sale of the same and make the improvements contemplated by the city, all negotiations with the plaintiff would amount to naught, and there should be nothing binding as to either party. The defendant expressly stated to plaintiff that if the bond commission was created the commission would take charge of all improvements, and in that event the plaintiff would appear before the commission just as any other civil engineer. An election for bonds was had, and bonds carried with the general understanding that the commission should expend the money in making the contemplated improvements. The plaintiff stated to the defendant, before the bond election, that if the citizens demanded a bond commission, and the granting of this was necessary to carry bonds, his contemplated contract with the mayor and council would not be in the way, and that if a commission was created this conditional contract with the defendant was to be void; and all the work the plaintiff did was under these conditions. A bond commission was created, who have taken the entire matter out of the hands of the mayor and council; and by agreement between the plaintiff and defendant, previously made, the conditional contract was annuled, and the defendant is not indebted to the plaintiff in any amount whatsoever. The defendant further pleaded, as a set-off, damages as a consequence- of the plaintiff’s failure of duty in performing a previous contract with the city in reference to paving the public square.</p> <p>The case was referred to an auditor, over the defendant’s objection. The auditor made his report, and the defendant moved to recommit the same, which motion was overruled. The defendant then filed exceptions of law and fact, some of which were sustained and others overruled, and the auditor’s report as modified was made the judgment of the court.</p>

<p>Partition. Before Judge Patterson. Milton superior court. March 31, 1915.</p>

<p>Complaint. Before .Judge Patterson. Cherokee superior court. May 5, 1915.</p>

<p>Action for damages. Before Judge Fite. Murray superior court. May 13, 1915.</p>

<p>Motion for new trial. Before Judge Wright. Floyd, superior court. January 12, 1915.</p>

<p>Claim. Before Judge Daniel. Spalding superior court. January 25, 1915.</p>

Complaint. Before E. E. Dupree, judge pro hac vice. Spalding superior court. October 15, 1914. Smarr filed bis equitable petition, in the superior court of Spalding county, against Mrs. Cornelia Cunningham of Eulton county, and A. W. Walker of Spalding county.

<p>Action for damages. Before Judge Park. Baldwin superior court. March 15, 1915.</p>

<p>Complaint. Before Judge Park. Baldwin superior court. March 23, 1915.</p>

Before Judge Gilbert. Taylor superior court. July 5, 1915. At the April term, 1915, of Taylor superior court a verdict was' rendered in favor of Davis against Peagler, claimant. On April 8 the claimant made' a motion for a new trial. An order to show cause was taken, and the motion was set for a hearing at ten o’clock on May 8, in vacation.

<p>Probate of will. Before Judge Gilbert. Chattahoochee superior court. April 24, 1915.</p>

<p>1. A plaintiff in an action of complaint for land, who relies for a recovery upon the prior possession of his grantor (no written color of title in the possessor being shown), must show, in order to make out a prima facie case, that the possessor had actual possession of the whole tract, or, if he was in actual possession of only a part of the tract, the evidence must so define the boundaries of the part that it may be described in the verdict, before a prima facie case for the recovery of a part of the tract is made out.</p> <p>2. Knowledge by one who purchases land that his vendor does not claim ownership, but is in possession of the land as the agent of another, goes to the good faith of the purchaser who attempts to prescribe under his vendor’s deed, rather than to raise a technical estoppel against denying the title of his vendor’s principal. The court’s charge was in accord with this principle.</p> <p>3. The instruction authorizing a recovery for one half of the premises, under the circumstances detailed in the opinion, will not require a new trial.</p>

<p>Complaint. Before Judge Littlejohn. Lee superior court. May 3, 1915.</p>

<p>1. In order to divest the title of a decedent by the allowance of a year’s support to his widow and minor child, the land must be so described as to indicate that a particular tract was intended to be set apart. Where the only description of the land in the report of the commissioners who set apart the year’s support is “20 acres of land valued at $250,” and where it does not appear from the year’s-support proceedings that the entire estate of the decedent was intended to be set aside, such description is too indefinite to be capable of enforcement, and as to that item the allowance is ineffective.</p> <p>(a) The proper practice in an action of ejectment is to object to a defective and void muniment of title being received in evidence. If, however, the testimony demands for the plaintiff a recovery of a part of the land, but for the defective and void muniment of title, it is error for the court to give effect to the void muniment of title by the direction of a verdict against the plaintiff.</p> <p>2. In the trial of an ejectment cause the plaintiff’s counsel admitted that both sides claimed from a common grantor, and that the land embraced in a year’s-suppqrt judgment, relied on as a muniment of title by the defendant, was the land in controversy. Pending the trial of the case and a discussion of the scope of the admission, the court refused, to allow counsel for the plaintiff to explain the-extent of the' facts" which he intended to admit. When counsel discovered that a construction had been put on his admission which was not intended, he should have been allowed to state what he intended to admit, and not rigidly held to an improvident admission, it not appearing that the opposite party was ' misled or put to a .disadvantage in reliance on the admission.</p> <p>3. There is no merit in the other grounds of the motion.</p>

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

<p>Trover. Before Judge Thomas. Colquitt superior court. April 9, 1915.</p> <p>Avery & Co. .brought trover against J. T. Sorrell, for the recovery of certain machinery which the plaintiffs alleged was in the possession of the defendant and to which plaintiffs claimed title: It was alleged that the defendant refused to deliver the property to the plaintiffs upon demand. No defense to the action was-filed. At the trial the plaintiffs introduced in evidence three promissory notes for $420 each, which had been executed by one H. S. Colvin and W. W. Baker. Payments had been made which had reduced the amount of principal and interest to $940.50. In these notes title to the property for the purchase-money of which the notes were given was retained in Avery & Co. A witness testified as follows: He was the duly authorized representative of Avery & Co. He called on Sorrell on or about Sept. 30, 1914, and made personal demand on him for the property in controversy, stating to him that he (witness) was representing Avery & Co.; and also showed him the notes executed by Colvin and Baker to Avery & Co. for the purchase-price of the machinery, in which notes the title to the property was retained in Avery & Co. Sorrell then and there refused to turn over or surrender the property to witness, stating that he had bought the machinery and had been operating it for three or four weeks, and did not propose to give it up, as he had bought it at sheriff’s sale. When Sorrell refused to turn over the property the witness had this suit filed. The property in controversy is worth $1,000, and is the same property described in the three notes signed by Colvin and Baker. For the defendant Boyd, sheriff of the county, testified: He sold this property to Sorrell under laborer’s liens against some other parties claiming the mill, and put him in possession of it. His bid was $125. He did not pay for it, and witness afterwards learned that Avery & Co. held the title to it, and told him that he need not pay for it, — that he need not consider it a trade; and he has never paid for it. When the suit was filed witness went out to serve the defendant, and he turned the property over to witness, and it is now in his charge. The defendant had run the sawmill some time, but witness does not know how long. “Sorrell is a plain farmer, and does not know this suit is against him.”</p> <p>After the conclusion of the evidence the court directed a verdict in favor of the plaintiffs for the property in controversy. The plaintiffs insisted that they were entitled to take a verdict for the unpaid balance of the purchase-price, and excepted to the direction given, and to the refusal of the court to allow them to take a verdict for the balance of the unpaid purchase-money.</p>

<p>Equitable petition. Before Judge Thomas. Berrien superior court. April 10, 1915.</p>

<p>Action for damages. Before Judge Thomas. Colquitt superior court. July 27, 1915.</p>

<p>Complaint. Before Judge Thomas. Colquitt superior court. July 27, 1915.</p>

<p>Intervention. Before Judge Thomas. Lowndes superior court. July 24, 1915.</p>

<p>Intervention. Before Judge Thomas. Lowndes superior court. July 24, 1915.</p>

<p>The sole exception, in the record is to a judgment overruling a motion for a new trial, which contains only the general grounds; and there being no brief of evidence, manifestly this court could npt decide that the judgment overruling the motion was contrary to evidence.</p>

<p>Mortgage foreclosure. Before Judge Kent. Twiggs superior court. July 12, 1915.</p>

<p>Action for damages. Before Judge Kent. Laureus superior court. July 30, 1915.</p>

<p>1. Article 3, section 7, paragraph 8, of the constitution of Georgia (Civil Code, § 6437), which provides that “No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof,” is not applicable to proposals by the legislature to amend the constitution. The legislative proposal of 1914, to amend article 11, section 3, paragraph 1, of the constitution (Civil Code, § 6600), is not invalid on account of any conflict •with, article 3, section 7, paragraph 8, of that instrument. Cooney v. Foote, 142 Ga. 647 (83 S. E. 537).</p> <p>2. The act approved August 16, 1915 (Acts 1915, p. 425), entitled “An act to abolish the office of county treasurer of Wayne County, and to provide in what manner the funds of said county shall be disbursed by the selection of a bank as a depository and to handle the funds belonging to said county and to pay same out on county vouchers; to provide for said bank to give bond, and for other purposes,” embraces only one subject-matter, and is not in violation of article 3, section 7, paragraph 8, of the constitution (Civil Code, § 6437), on the ground that it includes more than one subject-matter.</p> <p>3. The passage of the act of 1915, referred to in the preceding note, was authorized by the express provisions of the amendment to the constitution by the act of 1914, referred to in the first note above, and, being so, is by force of the constitution unaffected by the following provisions: (a) Article 11, section 2, paragraph 1 (Civil Code, § 6599), providing for the election of county officers by the qualified voters of the counties or districts, their terms of office, how they shall be removed, and certain qualifications necessary to their eligibility, (b) Article 11, section 3, paragraph 1 (Civil Code, § 6600), providing that tribunals or officers for the transaction of county matters shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for the appointment of commissioners of roads and revenues in any county, (c) Article 2, section 4, paragraph 1 (Civil Code, § 6391), providing that laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general- law. (d) Article 3, section 7, paragraph 17 (Civil Code, § 6445), providing that no law or section of the code shall be amended or repealed by mere reference to its title, or to the number of the section of the code, but the amending or repealing act shall distinctly describe the law to be amended or repealed.</p> <p>4. It appearing that, in virtue of the act of 1915 (Acts 1915, p. 425), the office of county treasurer of Wayne county was abolished and provision made for deposit and disposition of the public funds of the county through the agency of a banking institution, it was not erroneous for the judge, on presentation of the petition of the plaintiff alleging himself to be county treasurer and seeking to enjoin the board of commissioners of roads and revenue from dealing with the public funds in the manner specified in the act, to refuse to sanction the petition and issue a rule nisi as prayed.</p>

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

<p>1. Where a deed to land contains a general covenant of warranty as to title, in which there is no restriction as to transmission of the covenant, the covenant will pass in virtue of a deed by the grantee conveying the land to another person; and the second, or remote, grantee can maintain an action against the first grantor for a breach of the covenant of warranty, based on the fact that at the time of the execution of the deed by the grantor a part of the land was in possession of another person under an older deed from the grantor.</p> <p>2. In such an action for breach of warranty, where there is no question as to valuable improvements placed upon the land or expenses incurred by the plaintiff in complying with the contract, the measure of damages recoverable from the warrantor is the amount of the price which he received for the part of the land which the plaintiff lost, with interest thereon from the date of the sale. Where there is no evidence as to the price received for the land, and the only evidence as to the consideration paid therefor is that it was “an even exchange of real estate,” without identifying the land received by the grantor and showing its value, the plaintiff does not show a right to recover actual damages.</p> <p>3. But where in such an action the plaintiff proves the warranty and its breach, and his right to sue thereon, he is entitled to recover nominal damages, and it is erroneous to grant a nonsuit.</p>

<p>A system of laws is created by statutes governing the admission of applicants to the bar of the courts of this State, and prescribing standards of eligibility of the applicants. Under a proper construction of these statutes, a woman is ineligible for admission to the bar.</p>

<p>Petition for injunction. Before Judge Ellis. Fulton superior court. July 10, 1915.</p> <p>O. C. Long and numerous other persons engaged in the operation for hire of motor-buses, commonly called • “jitney buses,” filed their petition against the Railroad Commission of Georgia, and against Charles Murphey Candler, chairman, and the other members of the commission individually, alleging that the Georgia Railway & Power Company, a corporation, and certain named individuals filed with the Railroad Commission a petition asking that it assume jurisdiction of petitioners and the business conducted by them, and that rules governing the operation of the jitney buses be formulated and promulgated. Subsequently, at a hearing before the commission, the plaintiffs moved that these petitions be dismissed for lack of jurisdiction. After hearing argument the commission passed an order overruling the motion to dismiss. It is further alleged that the Railroad Commission prepared, formulated, and promulgated a set of rules for the government of petitioners’ said business, called “Public Motor Vehicle Rules.” In them is a definition of the motor vehicles -which fall under the class of vehicles affected by the rules, and detailed regulations as to the registration of such vehicles and the manner in which they shall be operated. The plaintiffs deny the authority of the Railroad Commission to make such rules and regulations, and deny that the power to make and promulgate them was embraced within the constitutional provision under which the Railroad Commission was created, or any of the acts of the legislature passed in pursuance of that provision. Other acts of the legislature enlarging the powers of the commission are attacked as unconstitutional. The plaintiffs contend that the promulgation and enforcement of these rules would be in violation of certain other provisions of the State and Federal constitutions. They pray that the Railroad Commission be restrained and enjoined from enforcing or attempting to enforce or put into effect said rules and regulations, and that they be declared null and void.</p> <p>To this petition the Railroad Commission filed a sworn answer. They denied that they had prepared, formulated, and promulgated any rules for the government of the plaintiffs as alleged in the petition. They had held that it was their duty, under the laws of the State, to exercise general supervision over the business of all common carriers of passengers in this State, including those engaged in the operation of automobiles and motor-cars upon regular schedule and definite routes or between definite points or termini; and “the Railroad Commission of Georgia now has under consideration the promulgation of rules and regulations concerning the same. A copy of the rules under consideration by the commission is set out in Exhibit ‘A’ to the petition in this case [these being the rules and regulations the enforcement of which petitioners seek to have enjoined]; but such rules have not yet been prepared, formulated, and promulgated as rules for the government of petitioners. Said rules were prepared by the chairman of the commission as tentative rules, and were sent out, by the direction of the commission, to persons who might be affected thereby, or who were in any way interested in the subject, for criticism and suggestions. The commission has fixed a hearing for July 13, 1915, for the consideration and promulgation of rules and regulations governing the business done by petitioners and others similarly situated. The commission may or may not adopt the rules referred to in this paragraph of the petition. Up to date they have not adopted and promulgated any rules on this subject.” They claimed, however, to have jurisdiction and the right of general supervision of all common, carriers in this State, including petitioners, and the right to promulgate and enforce .reasonable rules for the regulation of such common carriers.</p> <p>. Upon the hearing no evidence was introduced, and the case was heard and disposed of upon the pleadings. The court passed the following order: “The above-stated case for temporary injunction coming on to be heard on the question of the jurisdiction of the defendants over the plaintiffs as common carriers, it is ordered, considered, and adjudged that application for temporary injunction be and the same is hereby refused.” To the refusal to grant an interlocutory injunction the plaintiffs excepted.</p>

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

<p>Where a plaintiff files a petition against a defendant, praying for the appointment of a receiver and for the impressment of a trust upon specific property in the possession of the defendant, and the court on interlocutory hearing fails to appoint a receiver, but enjoins the defendant from disposing of the specific property except by the approval of the court, it is erroneous for the court by subsequent interlocutory judgment to peremptorily order the defendant to deliver to the plaintiff the property in question, in advance of an adjudication of the issue as to the ownership of the property by the contending parties, and to enforce such order by imprisonment of the defendant until compliance therewith.</p>

<p>Indictment for rape. Before Judge Cox. Decatur superior court. November II, 1915.</p>

<p>Action for damages. Before Judge Wright. Walker superior court. June 8, 1915.</p>

<p>1. There is no law in this State against a daughter’s voluntarily paying her father’s debts.</p> <p>2. Where a wife and daughter executed a deed to one who used the money to pay debts of the husband and father of the plaintiffs, this would not give the wife any right to have the deed canceled and to recover the land, although the grantee may have known of the purpose of the sale, unless he was a party to a scheme to get the wife to sell her land in order to pay her husband’s debts, in which event the wife could recover to the extent of her interest in the land.</p> <p>3. The allegations of the petition are not sufficient to support the case on the theory that the deed should be canceled and the land recovered because the deed was obtained by duress.</p> <p>4. 'Mere general allegations that deeds to land were obtained through fraud are not sufficient to withstand a demurrer. It is necessary that the plaintiff set out, by specific allegation, of what the fraud consists.</p> <p>5. Mere inadequacy of price is not alone sufficient reason for setting aside a deed to land, especially where the allegation as to its real value is uncertain as to the time when it was of that value — whether at the date of the sale, or that of bringing the suit.</p> <p>6. Under the allegation that the wife conveyed her interest in the land to the vendee, who was in collusion with the husband’s creditor, for the purpose of paying a debt due by her husband to the creditor, she has a cause of action to the extent of her interest in the land.</p>

<p>1. The contentions of the parties were not inaccurately stated, and none of the assignments of error require a new trial.</p> <p>2. A contract may be set aside in equity where great inadequacy of consideration is joined with great disparity of mental ability in contracting a bargain; and the principle is applicable whether the consideration be the payment of a sum of money or the rendition of service.</p> <p>3. Newly discovered evidence of the same kind as that which was used on the trial, and. going to the same point, is cumulative, and will not require the grant of a new trial.</p>

<p>Action upon bond. Before Judge Thomas. Colquitt superior court. October 9, 1914.</p>

<p>Complaint. Before Judge Thomas. Colquitt superior court. April 6, 1915.</p>

Petition for injunction, etc. Before Judge Graham. Telfair superior court. July 1, 1915.

<p>Complaint. Before Judge Graham. Montgomery superior court. June 15, 1915.</p>

<p>Action for damages. Before Judge Freeman. Coweta superior court. June 21, 1915.</p>

<p>Complaint. Before Judge Daniel. Butts superior court. June 15, 1915.</p>

<p>Claim. Before Judge Park. Greene superior court. July 27, 3915.</p> <p>On March 13, 1912, W. E. Corry executed to the Bank of Siloam a note for $700, due the fifteenth of the following October, and a mortgage to secure it. In this mortgage certain mules were described, among them "one black horse-mule six years old named Dan, and one black horse-mule six years old named Battler.” Later he executed to another bank called “Our Bank,” two bills of sale to secure debts. These included certain other live stock not material to be mentioned here, and also “two black horse-mules four years old named Punch and Ed, of the value of $500.” In December, 1913, Our Bank brought trover against Corry for the property included in the bill of sale to it. Bail process was sued out, and certain of the live stock sued for were seized. It was ' recited in the bill of exceptions that, among other animals seized by the sheriff, were “two black or bay horse-mules named Punch and Ed.” Neither party replevied the property, and, after notice, an order of the judge of the superior court was obtained for the sale of such property as perishable and expensive to keep, under the provisions of the Civil Code (1910), § 5153. The mules included in this order were sold on December 17, 1913. On July 30, 1914, Our Bank obtained a verdict against Corry in the trover suit for $1293.19, and took a judgment on the verdict, which recited that it was to be “a first lien upon the property sued for, as by statute provided,” and continued: “Let the same be credited with $173.43, net proceeds of the mules seized by the sheriff and sold under process in this case.” In the meantime, in January, 1914, the Bank of Siloam foreclosed its mortgage on the mules described therein, and an order was obtained to sell them as perishable property and expensive to keep. The property was advertised by posting, and a sale was made, at which one Dolvin purchased the property and paid for it. Among the live stock thus seized and sold were two mules described as being “one black horse-mule six years old named Dan, and one black horse-mule six years old named Battler.” Dolvin, being vice-president of the Siloam Bank, reported to the cashier-that he would either keep the mules or that the bank could take them. The bank took the mules, and sold them to Mrs. W. B. Corry, the wife of the original debtor, taking notes and reserving title as security until the purchase-money should be paid. She has paid $70 of the total of $596.</p> <p>One of the points of controversy in the present ease is that Our Bank contends that the mules called Dan and Battler in the mortgage to the Siloam Bank, and those called Punch and Ed in the bills of sale to Our Bank, were the same mules, though called by different names; that the mules which were seized by the sheriff under the bail-trover process in its favor against Corry as being Punch and Ed, and which were sold as perishable property after thus being seized, were not in fact Punch and Ed, but other mules which had been delivered to the sheriff instead of them under the bail process in the trover case. It attacked the mortgage held by the Siloam Bank as not being properly attested and recorded, so as to have priority over its bills of sale; and also contended that the advertisement of the sale under the mortgage of the Siloam Bank was not propérly posted, because the three places of posting were near together in Greensboro. The evidence was not in exact accord as to the places of posting. There was a considerable amount of evidence, which need not be here set out. The presiding judge directed a verdict in favor of the claimant, and the plaintiff excepted.</p>

<p>The petition, together with the exhibits, shows a right of recovery in the plaintiff, and the demurrer of the defendant was properly overruled.</p>

<p>Motion to set aside judgment. Before Judge George. Wilcox superior court. March 6, 1915.</p>

<p>Complaint. Before Judge Ellis. Pulton superior court. August 27, 1915.</p>

<p>Petition for injunction. Before Judge Fite. Gordon superior court. November 6, 1915.</p>

<p>Equitable petition. Before Judge Park. Hancock superior court. July 16, 1915.</p>

<p>Injunction. Before Judge Wright. Floyd superior court. August 14, 1915.</p>

<p>Action for damages. Before Judge Wright. Floyd superior court. July 15, 1915.</p>

<p>Claim. Before Judge Park. Baldwin superior court. January 22, 1915.</p>

<p>Specific performance. Before Judge Ellis. Eulton superior court. June 28, 1915.</p>

<p>Equitable petition. Before Judge Gilbert. Taylor superior court. May 10, 1915.</p>

<p>Action for damages. Before Judge Gilbert. Marion superior court. June 10, 1915.</p>

<p>Application fox paxtition. Befoxe Judge Littlejohn. Lee supe- ■ xiox couxt. Januaxy 27, 1915.</p>

<p>Appeal. Before Judge George. Irwin superior court. October 22, 1914.</p>

<p>Action for damages. Before Judge Thomas. Decatur superior court. February 20, 1918.</p>

<p>Petition for injunction. Before Judge Charlton. Chatham superior court. October 26, 1915.</p>

<p>Indictment for murder. Before Judge Summerall. Ware superior court. March 27, 1916.</p>

<p>The judge erred in rendering the judgment refusing a change of venue.</p>

<p>Petition; from Ha'll superior court. Motion to dismiss.</p>

Action upon insurance policy. Before Judge Fite. Bartow superior court. July 1, 1915. The action was by Mrs. Ila Day against the Metropolitan Life Insurance Company. The petition alleged that she was the widow of the insured, and the beneficiary under the policy of insurance; and that in consideration of the sum of $36.75 the defendant executed and delivered to her husband, Walter G-. Day, its policy of insurance on his life. It was a 20-year payment policy.

Equitable petition. Before Judge George. Irwin superior court. March 4, 1915. J. B. Richardson Jr., by his next friend, filed his petition against L. M. Burns and others, seeking to recover certain real and personal property, and rents, issues, and profits.

<p>Complaint for land. Before Judge Worrill. Early superior court. July 10, 1915.</p>

<p>Claim. Before Judge George. Ben Hill superior court. June 5, 1915.</p>

Action for damages. Before Judge George. Dooly superior court. August 5, 1915. Noel M. Felder, by next friend, instituted an action for damages against the Mayor and Council of Unadilla, a municipal corporation. The defendant demurred to the petition, and excepted to the judgment overruling the demurrer.

<p>Ejectment. Before Judge Thomas. Mitchell superior court. April 19, 1915.</p>

<p>Claim. Before Judge C. S. Eeid. Colquitt superior court. March 27, 1915.</p>

<p>An exception in a deed wherein the property conveyed is described as being “all that tract or parcel of land situated, lying, and being in the fourth district of said county of Pierce and known and distinguished in the plan of said district as lot of land number forty-live, being all of said lot of land except forty acres, more or less, on the northeast side of a certain branch known as Boggy Branch in the northeast corner of said lot; said tract or parcel of land containing four hundred and iifty acres, more or less,” is not void on its face for uncertainty; and where it is shown that Boggy Branch extends through the northeast corner of the land lot, the exception includes all the land northeast of such branch.</p>

<p>1. The evidence did not demand a verdict finding the property subject to the execution.</p> <p>2. Under the circumstances of the case it was erroneous to refuse to allow the claimant’s counsel, while interrogating the plaintiff on cross-examination, to ask as to the value of certain property which had been sold as the property of the firm of which the claimant’s husband had been a member, through whom the claimant had received a bond for title to the property in dispute, where the answer expected from the witness would tend to show the solvency of the firm and its individual members, and the court was informed of the answer expected.</p> <p>3. A contract of dissolution of a firm of which the claimant’s husband was a member, which, among other things, recited that an interest in the property in dispute was included among the Arm assets and in the division of the property fell to the claimant’s husband, was relevant; but its exclusion would not be cause for a reversal, it appearing that uncontradicted testimony as to its contents was admitted without objection.</p> <p>4. Evidence that the claimant’s husband and his copartner had never gone into bankruptcy was irrelevant.</p> <p>5. Where material to the issue, the opinion of a witness as to his solvency may be given in evidence, provided it is accompanied by the facts upon which it is founded.</p> <p>6. On the question whether a transfer of property from a husband to his wife was in good faith or for the purpose of defrauding his creditors, it was competent for the husband to testify as to his intent in making the transfer, the testimony to be considered with all the evidence bearing on the question.</p> <p>' 7. Under the pleadings and the evidence no question was made as to whether, under the facts of the case, the claimant would be subrogated to the rights of the grantee in the security deed, or to the rights of a holder of the bond for title, subject to which the claimant purchased the land in dispute.</p>

<p>Motion to set aside judgment. Before Judge Pendleton. Fulton superior court. April 28, 1915.</p>

<p>Equitable petition; from Eulton superior court. Motion to dismiss.</p>

<p>Action for damages. Before Judge Smith. Newton superior court. July 3, 1915.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. April 15, 1915.</p>

Action upon bond. Before Judge Park. Jasper superior court. February 16, 1915. The Farmers State Bank of Sparks, Georgia, brought suit against the National Surety Company on a bond called in the petition a fidelity bond.

<p>Interpleader. Before Judge Littlejohn. Sumter superior court. July 15, 1915.</p>

<p>1. A parol contract can not be engrafted on a written one for the sale of lands, so as to alter the terms of the latter.</p> <p>(a) Furthermore, the parol contract sought to be set up was one in which an administrator agreed to perfect titles to land by advertisement and indirect purchase of the same at his own sale as administrator, which would be unenforceable.</p> <p>2. It appearing from the petition that the plaintiffs had failed to comply with the terms of the written contract for the purchase of the land, the court did not err in sustaining the demurrer.</p>

<p>Trover. Before Judge Cox. Thomas, superior court. April 20, 1915.</p>

Action to recover legacy. Before Judge Pendleton. Fulton superior court. March 18, 1915. Leonard B. Folsom died testate.

<p>Action for damages. Before Judge Thomas. Colquitt superior court. August 28, 1915.</p>

<p>1. Where a motion to set aside a verdict and judgment rendered in a suit for divorce brought by a husband against his wife, upon the ground that they were obtained by fraud, was dismissed upon the ground that this motion was not the proper remedy, such adjudication would not preclude the movant from attacking the judgment in a petition properly brought and based upon sufficient grounds.</p> <p>2. In the present case a showing that the plaintiff in the divorce suit, although he knew of the residence and address of the defendant, willfully and fraudulently failed to comply with the provision of § 5557 of the Code of 1910, in regard to filing a copy of the newspaper containing the notice required by the law-allowing service by publication (§ 5556), and fraudulently procured an order showing service by publication in terms of the law, was sufficient to show fraud upon the part of the plaintiff in procuring the verdict and judgment. And inasmuch as this Iraud was of such character as to prevent the defendant in the divorce suit from knowing of the proceedings against her, it should be classed with those frauds which deter or debar one from his action, and therefore was such as to toll the statute of limitations under the provisions of § 4380 of the Code of 1910. And it not appearing that the defendant was lacking in diligence in discovering the frauds so practiced, and that her action to set them aside was brought within the statutory period after the discovery of their existence, a demurrer on the ground that such action was barred by the statute of limitations was properly overruled.</p>

Action for breach of contract. Before Judge Pendleton. Fulton superior court. July 1, 1915. The .George W. Muller Bank Fixture Company, maintaining a place of business in the city of Atlanta, entered into two certain contracts with the Georgia Railway and Electric Company, a corporation which was engaged in supplying electricity for light and power.

<p>Injunction. Before Judge Bell. Fulton superior court. July-39, 1915.</p>

<p>1. A negotiable promissory note had written on the margin of the paper by the makers the words: “This note given for ten shares of stock in Athens Insurance Agency, with guarantee of a 10% annual dividend.” In defense to a suit upon the note by a subsequent holder, a plea of failure of consideration alleged that the consideration of the note was certain stock in the Athens Insurance Agency, which was worthless, and recited that “said guarantee and condition, being written upon the face of the note, became a part of the note, and that the Bank of Harlem, when it purchased said note from Guest, did so with full knowledge of the conditions attached to said note, and subject to all the equities existing between said Guest and said J. S. and J. E. Hardin.” Held: (a) When construed most strongly against the pleader, the recitals above quoted in the plea amounted to a charge that the plaintiff had notice of the equities between the original parties to the note merely in virtue of the above-quoted memorandum written thereon. (6) The memorandum was insufficient to charge notice of failure of consideration of the note; and the plea failing to aver that plaintiff purchased the note with notice of a failure of consideration, it was properly stricken on demurrer.</p> <p>2. The note was made payable to the order of the makers, and was indorsed by them in blank. An amendment to the plea was offered, averring that the Athens Insurance Agency made to the defendants certain guaranties as to the above-mentioned stock, that the guaranties had failed, and that the plaintiff took the note with full notice of all the equities of the makers arising out of the failure of the guaranties. The Athens Insurance Agency was not an original party to the note, and there was no allegation that it owned the note when it made the alleged guaranties and had subsequently sold it to the plaintiff. Held: (a) The amendment was insufficient to charge any equity in favor of the makers which would affect the plaintiff, notwithstanding the plaintiff may have purchased with notice of the alleged agreement between the defendants and the Athens Insurance Agency. (6) There was no error in rejecting the proposed amendment.</p> <p>3. Giving due weight to the evidence and the pleadings, there was no error in directing the verdict for the plaintiff.</p>

<p>Appeal. Before Judge Cox. Thomas superior court. April 21, 1915.</p>

<p>R In a claim case, where the claimant’s title is derived from a grantee of the defendant in fi. fa., and the deed from the defendant in fi. fa. to his grantee, which is older than .the judgment,- is attacked as having been made with intent to defraud or delay creditors, it is error to charge the jury, in substance, that if such a deed was fraudulent the claimant’s deed from him would be void as against creditors if she had reasonable ground to suspect that the conveyance to her grantor was made to delay or defraud creditors.</p> <p>2. On an issue such as is just described the solvency or insolvency of the defendant in fi. fa. at the time of making the conveyance attacked as fraudulent is relevant; but the range of the evidence as to time should be so restricted as to reflect the financial condition of the grantor at the time of the making of the deed.</p>

<p>1. In view of the entire instructions to the jury, the agreement of the parties, and the evidence, the following excerpt from the charge of the court was not error: “In determining what amount you will find in favor of the plaintiff and against the defendant, you may consider the diminution in value, that is, the fair market value, of the freehold in consequence of the unlawful cutting by the defendant alleged in the declaration. You may consider what was and is the injury to the freehold — to the tract of land, if any, in consequence of the unlawful cutting, if any, by the defendant of the timber alleged in the declaration as having been cut.”</p> <p>2. The verdict was supported by the evidence.</p>

<p>Complaint. Before Judge Graham. Bleckley superior court. April 2, 1915.</p>

<p>1. A certificate of deposit issued by a bank and made payable “to the order of the administrator, 12 months after date, on return of this certificate, properly endorsed, with interest at the rate of 6 per cent, per annum. Interest will cease at maturity,” is not due until it is returned to the bank properly endorsed and payment thereof is actually demanded.</p> <p>2. The statute of limitations would begin to run against the certificate of deposit only from the date it was returned to the bank properly endorsed and payment thereof was actually demanded and refused.</p> <p>3. Accordingly, where such a certificate was dated January 25, 1905, and demand for payment was made of the bank on July 7, 1913, and suit was brought on the certificate on May 16, 1914, it was not error to overrule a demurrer to the petition on the ground that the certificate was barred by the statute of limitations.</p>

<p>Action for damages. Before Judge Kent. Laurens superior court. January 28, 1915.</p> <p>The plaintiff alleged, in brief, that in December, 1912, he bought a lot in Dublin at the corner of Moore and Calhoun streets, and thereon erected for himself and family a residence, making the value of the premises at least $2,000; that at this time the premises were well situated, healthy, and in every way desirable as a family residence, and so remained until January, 1914, when the City of Dublin through its agents and employees commenced to dump refuse and waste from the city, of every kind and description, in front of his home and within one hundred yards of his door, putting it in the spring-head or drain at the upper end of Stubbs’ Park and just above the line of Calhoun street; that the city had so continued to dump the refuse at the same place, putting there the dead bodies of animals and fowls with all other refuse commonly found about a city; that this dumping caused the water to become ponded and stagnant and to be polluted, sending forth noxious odors and vapors and so impregnating the air that the plaintiff and his family were compelled to breathe that they were made sick with fevers, etc. He alleged damages in decreased market value of his home, and in expenses arising from the sickness, mental and physical pain, and his lost time; and he claimed punitive damages, for that the city authorities on repeated requests had refused to abate the nuisance. He had presented his cluim for damages to the governing authority of the city, and adjustment of it had been declined.</p>

<p>A bank sued H. on a note payable to his order and indorsed in blank by him. H. pleaded that the bank was not a bona fide holder, and had notice at tlie time it took the note that T. was the legal owner thereof; and that at maturity he paid the note to T. T. filed a petition to intervene, adopting the allegations of the plea of the defendant, and further alleging that he had agreed to indemnify H. against a second payment of the note. Held, that T.t had no right to intervene merely for the purpose of contesting the plaintiff’s right to judgment against the defendant.</p>

<p>Claim. Before Judge Summerall. Charlton superior court. March 21, 1915.</p>

<p>Action for damages. Before Judge Ellis. Fulton superior court. January 26, 1915.</p>

<p>Motion to set aside # judgment. Before Judge Ellis. Fulton superior court. February 4, 1915.</p>

<p>Action, for damages. Before Judge Pendleton. Fulton superior court. April 21, 1915.</p>

<p>Action for damages. Before Judge Pendleton, Fulton superior court. July 13, 1915.</p>

<p>1. In an action for damages by a railroad conductor against his employer, while engaged in interstate commerce upon one of the trains of his employer, under- the Federal employer’s liability act, where it appears that the negligence of the defendant and that of the plaintiff concurred in producing the injury, the negligence of both parties is to be deemed the proximate cause of the injury; and it is not error for the judge, in referring to causal negligence of the parties, to instruct the jury that if it should be found that the plaintiff was injured as alleged, the plaintiff would be entitled to recover, if the defendant was negligent in the manner alleged, and if such negligence “contributed in whole or in part to the injury.”</p> <p>2. It was not erroneous for the judge to charge as indicated in the second division of the opinion.</p> <p>3. There being no evidence in this case to show an emergency which authorized the plaintiff to ride on the engine at the time of the collision in which he received his injury, rather than in the caboose where, by a rule of the company, he was required to ride except in case of emergency, it was error for the judge to instruct the jury on the basis of an emergency having been proved.</p> <p>4. In an action by an employee against a railroad company for damages on account of permanent injuries, where there is evidence to authorize a finding that the plaintiff sustained permanent injuries and by reason thereof his earning capacity was impaired, it is proper for the jury, in passing upon the amount of his damages, to estimate his loss by reason of decreased earning capacity reduced to its present cash value. While instructing the jury as to the amount of damages to be allowed on account of decreased earning capacity, it is inaccurate to charge that “the value of the earning capacity of plaintiff would have to be reduced to its present cash value.”</p>

<p>Equitable petition. Before W. M. Goodwin, judge pro hae vice. Washington superior court. April 28, 1915.</p>

<p>1. The authority conferred by statute (Civil Code, § 3935) on temporary administrators to collect and take care of the effects of the deceased until permanent letters are granted can not be augmented by a private agreement between the temporary administrator and the widow of the deceased. Accordingly, in an action by a permanent administratrix against the temporary administrator for an accounting as to certain personal property of the intestate coming into his hands, a paper purporting to be an agreement between the widow and the temporary administrator, conferring authority upon the temporary administrator in regard to disposal of the property of the intestate coming into his hands, is irrelevant.</p> <p>2. In such a case a record was also irrelevant which consisted of a judgment of the court of ordinary setting apart a year’s support to the widow, composed, among other things, of “three one-horse crops after the rent and expense bill to complete same has been paid,” when it was offered, not for the protection of the temporary administrator in turning the property over to the widow, but for his protection in paying out the proceeds of the crops in payment of rent and expenses incurred to complete the crop and supplies furnished to the intestate.</p> <p>3. In an action by a permanent administratrix against a temporary administrator, for an accounting relative to property of the estate coming into the hands of such administrator, a judgment of the court of ordinary purporting to discharge the temporary administrator, which recites that it was made to appear before the court of ordinary that the temporary administrator had administered the estate “in accordance with an agreement in writing,” would not be conclusive upon the permanent administrator on the question of accounting.</p> <p>4. In such a suit the temporary administrator was incompetent, as a witness in his own behalf, to testify to conversations and agreements between the intestate and himself while acting as agent for his brother, to whom, on the strength of such agreements and conversations, he paid out certain funds coming into his hands as temporary administrator.</p>

<p>1. A contract made by a justice of the peace with one who claims indebtedness from many persons on account, that the latter will turn over the accounts to the former for suit in the justice’s court, upon the understanding that neither the justice nor the constables will hold the plaintiff liable for costs in any cases where a recovery is had against the party sued, but the costs, if collected, are to be collected from the defendant in the judgment, is opposed to public policy, illegal, and void.</p> <p>2. Where such justice of the peace enters up judgments against the various parties, and is afterwards removed from office, and his successor issues executions on the judgments, upon which are entered returns of nulla bona, and where on notice of such return, and after refusal to pay costs on demand, cost fi. fas. are issued and levied on the property of the plaintiff, such levies will not be enjoined at the instance of the plaintiff against whom the cost fi. fas. are proceeding, solely because of his illegal agreement respecting costs, made with the justice who entered up the judgments.</p> <p>(<t) The circumstances that the justice with whom the agreement was made has since died, and that the parties entitled to his estate, and the constables who were in office under him, may be entitled to receive the costs, does not alter the principle.</p> <p>(6) The plaintiff’s prayer for injunction is dependent upon giving effect to the illegal contract, which the courts will not countenance.</p>

<p>1. The testimony of the witness set out in the first division of the opinion was relevant, and the court erred in excluding it.</p> <p>2. In determining the ability of a husband to pay alimony it is competent to inquire into the value of his property. Where the defendant while being examined as a witness gives his opinion as to the market value of his property, it is competent on cross-examination to ask him if he would take a stated sum larger than that which he has testified in his opinion to be its fair market value. Such evidence is not competent for the purpose of proving value, but on cross-examination it is competent to ask such a question as affecting the credit to be given the opinion evidence of the witness. (Evans, P. J., and Hill, J., dissent from this note.)</p>

<p>Equitable petition. Before Judge Worrill. Miller superior court. April 26, 1915.</p>

<p>Action for breach of contract. Before George P. Munro, judge pro hac vice. Schley superior court. May 21, 1915.</p>

<p>Complaint. Before Judge Highsmitb. Jeff Davis superior court. May 10, 1915.</p> <p>The American National Bank of Macon brought suit 'against Elias Hinson on two promissory notes, each for $2,500 principal, with, interest at five per cent., dated December 11, 1911, one due on October 1,1912, and the other due on November 1,1912. Each of them stated that “I jointly and severally promise to pay to myself or order twenty-five hundred and no/100 dollars, at any bank, for value received, being a bona fide loan of money, with interest at five per cent, per annum from date until paid.” Each of these notes was indorsed in blank by Elias Hinson, and by “Brown Wagon Company, per B. B. Taylor, Secy, and Treas.” The defendant pleaded, among other things, as follows: Prior to the maturity of the notes they were purchased by B. H. Tanner, who was the owner of them at maturity. He entered into negotiations with the Brown Wagon Company of Macon for certain stock in that company, and offered to pay therefor by selling the notes sued on to that company, upon the agreement that he would not purchase the stock unless the company would accept the notes as full payment therefor, without his indorsement. The company refused to accept the notes in payment of the stock unless Tanner would indorse them, which he refused to do; and the trade, whereby the notes were to be exchanged for the stock, was never consummated, and the title to the notes remained in Tanner. Before the notes had been returned to Tanner the president of the company died, the notes being left upon his desk. Immediately- after his death the affairs of the company were placed in charge of auditors to be checked, and its financial condition ascertained, the transaction of business being suspended. The auditors took possession of the notes, and delivered them to the American National Bank, which received them without any indorsement of the Brown Wagon Company; but the indorsement of that company appearing on the notes was placed there some days later by the secretary and treasurer, on request of the bank, and over his protest that such indorsement was worth nothing. The secretary and treasurer had no authority to make such indorsement at that time. The bank was informed, before the death of the president of the Brown Wagon Company, of the negotiations with Tanner, that the latter refused to indorse the notes, and that no trade had been made. The defendant paid the notes to Tanner, who was the true and lawful owner.</p> <p>The following, among other facts, appeared: Tanner entered into negotiations with a person representing the Brown Wagon Company, with a view to purchasing stock in that company, and agreed to take such stock if the company would accept the Hinson notes in payment therefor, without his indorsement. He signed a stock subscription containing the following: “I hereby subscribe for 50 shares of the preferred capital stock of the Brown Wagon Company, at $100 per share, including a bonus of fifty per cent, common stock, and enclose $- cash [written between the lines are the words, “exchange two notes attached”] and $- note in full payment therefor. As soon as all notes and other evidences of indebtedness are paid in full as agreed, certificates for said stock shall be delivered to me by the company. Purchaser to [be] elected director of the company.” There were other terms as to the right of the company to reject any subscription, and as to allotment in case of oversubscription. The representative of the company gave to Tanner a receipt for the two Hinson notes, stating that they were “to be offered to Brown Wagon Company in payment of $5,000 preferred stock; if not accepted, to be returned to B. H. Tanner.” Two days later the president of the company wrote to Tanner a letter in which, referring to the notes, he stated that “we can accept these for the $5,000 as face of the amount, provided, of course, you will indorse same, it bearing your signature. The banks here in Macon will gladly and willingly take the paper with your indorsement; otherwise, they do not feel inclined to handle it,” etc. Shortly thereafter the president of the company died, leaving the notes on his desk. He owned a large part of the stock of the company. After his death his brother-in-law, W. J. Massee, proceeded to represent the widow (who, he testified, was a large stockholder, and also a creditor). Hnder agreement between him and the secretary and treasurer, an auditor or auditors were appointed to investigate the condition of the company, which was not then transacting active business. Mr. Massee was not a stockholder or officer of the company, but testified that he acted in an advisory capacity, and consulted with the secretary and treasurer. The secretary and treasurer testified that Mr. Massee took charge of the notes and delivered them to the auditors. The testimony was conflicting as to the transaction by which the bank became possessed of the notes. Some of the evidence tended to show that Mr. Massee negotiated with the officers of the bank in regard to discounting the Hinson notes, so as to provide for the payment of notes due to the bank by the wagon company, and they knew that he was not an officer or stockholder in the company. The testimony of the secretary and treasurer of the company tended to show, that the bank, through its officer or officers, was affected with notice that the trade with Tanner had not been completed, that no one then had authority to complete it, “and they were Mr. Tanner’s notes,” and that the secretary and treasurer did not think that they should be handled; that he indorsed the company’s name upon the notes some days after the bank received them, at the request of an officer of the bank, who stated that they wanted to know from whom the bank received them; that the secretary and treasurer stated that he would place the indorsement upon them, but he did not think it amounted to anything; and that the wagon company was insolvent at the time when the bank received the notes, and was placed in bankruptcy in less than ten days afterward, and within two or three days after he had indorsed the notes. This witness also testified that the money received from the bank was about $150 or $200, which was paid to the auditors for expenses. There was other testimony, indicating that, after the death of the company’s president, Tanner wrote for the notes.</p> <p>The evidence on behalf of the bank tended to show, that it discounted the Hinson notes upon the agreement that a large part of the proceeds would be applied to the taking up of maturing notes of the wagon company, which was done, and a balance in cash was paid by the bank; that the negotiation was with Mr. Massee, or the secretary and treasurer under his advice; that the banking business of the wagon company continued while the auditing was in progress; that the bank took the notes without notice of any title or right in Tanner, if there was any, and without knowledge of the insolvency of the wagon company. Other evidence need not be set out.</p> <p>The jury found in favor of the defendant. The plaintiff moved for a new trial, which was refused, and it excepted. It also assigned error on the overruling of objections to an amendment made to the answer and to the overruling of a demurrer to the amended answer.</p>

<p>Trover. Before Judge Highsmith. Wayne superior court. June 30, 1915.</p>

<p>Action for breach of contract. Before Judge Hammond. Richmond superior court. July 17, 1915.</p>

<p>Claim. Before Judge Davis Freeman (of the city court of Savannah). Chatham superior court. February 15, 1915.</p>

<p>Actiou for damages. Before Judge Bell. Fulton superior court. April 2, 1915.</p>

<p>Ejectment. Before Judge Graham. Montgomery superior court. . May 3, 1915.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. January 23, 1915.</p> <p>Pearl Little, formerly Pearl Ostrander, brought suit against J. J. West, guardian of Pearl Ostrander, and alleged in substance as follows: She is the sole heir at law of Josie Ostrander, deceased. The latter died about 1903 or 1904, leaving an estate in Fulton county, Georgia, consisting of personal property and part of land lot No. 43 of the 14th district, located on South avenue, Atlanta. On November 2, 1904, J. J. West was appointed administrator on the estate of Josie Ostrander, and on November 22, 1909, filed in the court of ordinary of Fulton county his final return, showing that on that day he delivered to J. J. West as guardian of Pearl Ostrander, now Pearl Little, the sole heir at law of Josie Ostrander, the above real estate, together with $79 in cash. J. J. West was appointed guardian of petitioner at the February term, 1909, and acted as such until September 2, 1912, when he was granted a discharge. West, as guardian, applied for leave to sell the above real estate, and was granted authority to sell on March 3,1912. The guardian did pretend to sell the real estate on the first Tuesday in April, 1912 (April 2, 1912), and the purchaser at the purported sale was S. J. West, son of J. J. West, and surety on the bond of J. J. West, guardian, for the sum of $850. The alleged sale was fraudulent and was carried out' in fraud. J. J. West, as guardian, represented that it was necessary that the sale take place for the purpose of maintaining petitioner, which she alleges was untrue, and he knew that it was untrue. He knew that petitioner would in a few weeks become of age, and he hastened the sale of the property in order that his son could buy in same and resell for a much larger sum. The property was bid in by S. J. West, son of J. J. West and surety on his bond as guardian, when in fact the purported sale was simply a scheme between J. J. West and S. J. West, whereby they could sell the property, buy it in, and resell it for a profit, thereby defrauding and cheat ing petitioner out of the real value of the property. The proj erty brought only $850 at the sale, when it was worth at least $1500 to $1700. Petitioner had no notice and was not advised that the sale would take place, and she did not know that the sale had occurred until some time in June, 1912, when she received notice from the First National Bank of Butte, Montana, that it had a check from J. J. West which it would deliver to her upon the execution of a certain receipt in full of all demands against J. J. West as guardian, etc., and of all her interest in and. to the property belonging to her as sole heir of Josie Ostrander. She refused to accept the check or to sign the receipt, and has not received the check nor signed the receipt, for the reason that she is entitled to more than the sum admitted to be due her by J. J. West as guardian, namely, the sum of $239.28. J. J. West as guardian has attempted to file returns which are not true, and to charge her with the sum of $734.25, and other sums to which he is not entitled, and for the expenditure of which he had no authority; nor did he receive any authority of any court for expending said sums, or to charge such sums against your petitioner and against the estate of Josie Ostrander. On April 6, 1912, two days after the alleged fraudulent sale to S. J. West, J. J. West sold the property to Mrs. Anna Walker Jenkins for the sum of $1700. While this sale purports to have been by S. J. West to Mrs. Jenkins, petitioner charges on information and belief that it was not a sale by S. J. West, but that it was a sale by J. J. West, acting fraudulently with S. J. West, and for the purpose of defrauding petitioner. She became of age on May 29, 1912, less than two months after the fraudulent sale took place. J. J. West as guardian knew she would soon be of age, and hastened the sale in order that he might take advantage of her and sell the property at a low price, and resell for his own profit. Under the foregoing facts J. J. West has fraudulently and illegally obtained his discharge as guardian, and he is guilty of a fraudulent and illegal sale of the property of petitioner; and if it had not been for the alleged fraudulent acts, no discharge could have been applied for and obtained. Petitioner prays that the order discharging the guardian be revoked; that he be required to give a strict accounting of his acts and doings in the premises; that he account to her for the real value of the property, $1700; that she have a judgment against him as guardian, as principal, and against S. J. West as security, for the principal sum of $1700, with interest, etc.</p> <p>S. J. West filed his answer admitting that J. J. West did sell the property described for a cash consideration of $850, but denying that it was worth more than that, or that the sale was fraudulent. He alleged it was legally carried out, and that the property ' was sold for $1700 on the instalment plan; and he denied that this sale was fraudulent. The land was legally exposed to sale, and after several bids was knocked ofi to the defendant.</p> <p>- J. J-. West answered as follows: He did sell the property referred to on the first Tuesday in April, 1912, and the purchaser was S. J. West, his son. The money against which the check was drawn was caused by the ordinary to be deposited in a solvent bank; and letters dismissory were granted to the defendant by the ordinary. S. J. West did sell the property for $1700, but the sale was made upon easy payments. Defendant denies that there was any fraud in connection with the sale, whereby a fraud was practiced-on petitioner or on the court. The real estate referred to was purchased in 1902 by William Fagan, the plaintiff’s father, for the sum of $200, and when defendant took possession of it as guardian there was upon it a small two-room house in a dilapidated condition, and the defendant was unable to rent the house except for a small part of the time and then only for-a month. In order to make the real estate produce enough income tó pay taxes and assessments for street improvements, it was necessary that the house be put in first-class condition and enlarged. He made application to the court of ordinary in writing, setting forth his full discharge of his trust as guardian; the ordinary made an examination of the defendant’s accounts and vouchers, and verified the truth of the petition; the application was published once a week for four weeks in the public gazette where the legal notices of the ordinary’s office are usually published; proof was made to the ordinary that the ward was of age; and thereupon letters of dismission were granted by the ordinary to the defendant. At the time of his application for discharge he had in his hands the sum of $239.28, which he deposited with the ordinary, and he caused the same to be deposited in some solvent bank. The sale of the real estate was made after obtaining leave of the court of ordinary, and was before the court-house door, in compliance with the laws of this State regulating such sales. He employed an auctioneer to expose the property for sale, and the price it brought was as much as it was reasonably worth for cash. It was necessary to sell the land in order to pay the expenses incurred by the defendant for taxes, street improvements, and repairs and additions to the house. He made no allowance in his returns for commissions which he was legally entitled to as guardian, nor did he make any allowance for counsel fees incurred by him as guardian. In the event of a revocation of the order discharging him as guardian, he prays that he be allowed to recover the usual commisions and counsel fees.</p> <p>The jury returned a verdict for the defendants. The plaintiff made a motion for a new trial, which was overruled, and she excepted.</p>

<p>Complaint for land. Before Judge Hammond. Jenkins superior court. • March 8, 1915.</p>

Action upon insurance policy. Before Judge Charlton. Chat-ham superior court. April 29, 1915. Elizabeth Rogers, as beneficiary under an accident-insurance policy, instituted an action against the American National Insurance Company of Galveston, Texas. The defendant filed a demurrer to the petition, upon general and special grounds; some of which grounds were sustained and others overruled.

<p>Injunction. Before Judge Charlton. Chatham superior court. July 3, 1915.</p>

<p>1. Where a borrower of money executes a deed to secure the debt and receives a bond for title as provided in the Civil Code, § 3306, and suit is instituted for a general judgment and to subject the property to payment of the debt as provided in the Civil Code, § 6037, and within four months next after rendition of the judgment, but more than four months after the debt and record of the security deed, the debtor is adjudged a bankrupt upon his voluntary petition in bankruptcy, the judgment is not invalid on account of section 67 (f) of the bankruptcy act, and ineffective for the purpose of bringing the property to sale to pay the debt.</p> <p>2. An attorney at law' who is a notary public, and who negotiates a loan and receives a fee from one of the parties for negotiating the loan and examining the title and preparing all papers connected with the loan, is not disqualified, on account of interest, from acting as the official attesting witness to the deed.</p> <p>3. It sufficiently appears that the contract evidenced by the notes and deed under consideration was contemplated by the parties to be a Georgia contract; and the laws of this State on the subject of interest and usury are applicable.</p> <p>4. Where a broker engaged in lending money takes a note and security deed in his own name, and the note bears a less rate of interest than eight per cent., and in addition to the interest specified in the note the lender deducts an amount called a “brokerage fee,” which if added to the stipulated interest would not make an amount exceeding eight per cent, per annum on the principal debt during the time of the loan, the exaction of such amount does not render the contract usurious.</p> <p>(a) Upon a plea of usury the burden of proof is upon the party pleading it. If an agent of a lender deducted for himself an amount as commissions or fees of such magnitude as, when added to the conventional rate of interest and other charges, would make a sum exceeding eight per cent, per annum for the use of the money during the time of the loan, but if the lender did not authorize the charge and had no knowledge of it and did not share therein, the transaction would not on account thereof be rendered usurious relatively to the lender.</p> <p>(S) The knowledge of the agent would not be imputed to the lender.</p> <p>(c) Whether the attorney at law was the agent of the lender or borrower need not be decided.</p> <p>5. Am original triplicate of the schedule of creditors and their claims, required to be filed by a bankrupt in the court of bankruptcy under the bankruptcy act, is an office paper, and a certified copy thereof is primary evidence.</p> <p>6. In view of the ruling announced in the fourth headnote, if certain evidence offered to support the plaintiff’s contention that the attorney negotiating the loan was agent of the lender was admissible, its rejection would not be cause for reversal, in the absence of evidence to show that the lender had notice of the retention of the fees or participated therein.</p> <p>7. There was no error in refusing the application to require the surrender of the property to the receiver for administration in the court of bankruptcy.</p>

<p>Complaint. Before Judge Kent. Laurens superior court. February 15, 1916.</p>

<p>Illegality; from Dooly superior court. Motion to dismiss.</p>

<p>Under the evidence the court did not err in granting a nonsuit.</p>

<p>Ejectment. Before Judge Summerall. Qiuch superior court. March 24, 1915.</p>

Equitable petition. Before Judge Bell. Eulton superior court. January 30, 1915. This was an equitable action by the trustee of the Protestant Episcopal Church against the Louisville and Nashville Railroad Company aird the Atlantic Coast Line Railroad Company, lessees of the Georgia Railroad Company, for specific performance of a covenant in regard to locating and improving a street in the City of' Atlanta. The exception is to a judgment overruling a demurrer to the petition.

<p>1. All actions upon open accounts in this State shall -be brought within four years after the right of action accrues.</p> <p>2. The rule that when a number of days is prescribed for the exercise of any privilege, or the dischax-ge of any duty, only the first or last day shall be counted, does not apply where months and years are to be computed.</p> <p>3. In the absence of contract or custom as to the time of payment, the purchase-price of building material furnished on open account is due when the goods are delivered.</p> <p>4. Where suit was brought on May 21, 1913, on an open account the last item of which bore date May 21, 1909, and this appeared on the face of the pleadings, it was error to overrule a motion in the nature of a demurrer to dismiss such action.</p>

<p>Equitable petition. Before Judge Pendleton. Pulton superior court. May 7, 1915.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. May 2é, 1915.</p>

<p>1 The testimony excluded by the court had no tendency to imply a promise from the defendant to pay for an article sold to another.</p> <p>2. To sustain an action on an implied promise to pay for an article, there must exist a status between the parties from which the law will imply a duty to pay. Such was not shown, and a nonsuit was properly granted.</p>

<p>Action upon insurance policy. Before Judge Hammond. Richmond superior court. April 3, 1915.</p>

<p>Under the facts alleged in the petition there was no error in sustaining a general demurrer thereto.</p>

Equitable petition. Before Judge Hammond. Burke superior court. July 26, 1915. This is an equitable action for partition of land. The defendant demurs on various grounds, all of which go to the point that the'.plaintiff has no interest or title in the land sought to be divided.

<p>■ Complaint. Before Judge Hammond. Richmond superior court. July 8, 1915.</p>

<p>Action for damages. Before Judge Sheppard. Liberty superior court. February 16, 1915.</p>

Equitable petition. Before Judge Mathews. Bibb superior court. March 29, 1915. The action was brought by Guy Armstrong against the Commercial National Bank, J. J. Cobb, Cecil Morgan, and the American National Bank, for equitable relief. The defendants filed separate demurrers, which were overruled, and they jointly sued out a writ of error.

• Equitable petition. Before Judge Wright. Walker superior court. June 7, 1915.

Eviction. Before Judge Graham. Laurens superior court. May 19, 1915. E. H. Boberson was the owner of a hotel which he leased to Mrs. Mattie V. Weaver by written contract, dated August 3, 1907, for the term of three years from October 1, 1907. On August 8, 1907, Mrs. Weaver, under a verbal contract, took possession of the unexpired term of a former lessee, whose term was to expire on October 1, 1907.

<p>In view of the express stipulations of the contract of sale, the plaintiff was not bound by the alleged agreements of its local agent with the defendant, as set forth in the answer to the suit; and under the evidence a verdict in favor of the plaintiff for the full amount of the purchase-price, with interest, was demanded.</p>

<p>Where a bond was conditioned to execute good and sufficient title to realty described as fronting 55 feet on a named street, upon the payment of the specified purchase-price, and before paying the purchase-price the obligees transferred the bond and the transferee in turn sold the land as containing 55 feet, at so much per front foot, and his purchaser, on measuring the land, found that it contained only 53.9 feet; and where the transferee sued the transferors of the bond, to recover the value of the deficiency, based upon the contract price per front foot at which they sold the land to him, it was not error to sustain a demurrer to the petition. In such case the contract of sale was consummated by the formal transfer of the hond for title, and the sale became fully executed and was merged into the transfer.</p>

<p>Certiorari. Before Judge Pendleton. Eulton supreior court. May 19, 1915.</p>

<p>Action upon accident-insurance policy. Before Judge Ellis. Fulton superior court. August 4, 1915.</p>

<p>Complaint for land. Before Judge Pendleton. Fulton superior court. May 27, 1915.-</p>

<p>Equitable petition. Before Judge Smith. DeKalb superior court. August 12, 1915.</p> <p>Mrs. Lena Erazier, who sues in her own right, and Claude J. Adams, Clement A. Adams, Harris M. Adams, and William Mullen, all minors, brought suit by their next friend, Mrs. Lena Erazier, and alleged, so far as material to the consideration of this ease, substantially as follows: The defendants in the case are Arnold Broyles, E. E. Callaway, Lumpkin Investment Company (a corporation of Georgia, with its principal office in Eulton county), and Mrs. Ellen A. Neill, all of Eulton county, Georgia. Plaintiffs, together with William J. Adams, are all the children of J. W. Adams, deceased, late of DeKalb county, and at the date of his death in 1903 all of the plaintiffs and also William J. Adams were minors. Mrs. Ellen A. Adams was the widow of J. W. Adams and the mother of all the plaintiffs except William Mullen, who is a grandchild of J. W. Adams, his mother, Lottie Mullen (née Adams), having died leaving William as her only, heir at law. After the death of J. W. Adams his widow, Ellen A. Adams, was married to John Neill of Eulton county, Georgia, and is one of the defendants herein. At and prior to his death J. W. Adams owned a tract or parcel of land in land lot No. 121 in the 18th district of DeKalb county, Georgia, containing 55 acres, a description of which is set out in the petition. Ellen A. Adams, after the death of her husband, petitioned the court of ordinary of DeKalb county to have a year’s support set apart to her and her seven minor children on or about September 4, 1905; and the ordinary issued his warrant to five appraisers, directing them to assign and set aside a year’s support to petitioner and her minor children; and on September 5, 1905, the appraisers made a report to the ordinary, setting aside the above-described land, together with certain personal property, as a year’s support for the widow and her minor children; and this return was made the judgment of the court of ordinary and admitted to record. It was alleged that the setting apart of the year’s support vested the title to the land in the widow and her seven minor children. About June 2, 1911, Mrs. Ellen A. Neill, then Mrs. Adams, conveyed the real estate so set apart to Arnold Broyles and F. E. Callaway, by warranty deed, for a consideration of $4,400; bnt the land at that time was worth more than $10,000. Shortly after the above conveyance Broyles and Callaway, on September 3, 1912, conveyed twenty acres of the land to one of the defendants, Lumpkin Investment Company, for the consideration of $3,250. At the time of the purchase by the Lump-kin Investment Company it had notice that the property had been set apart out of the estate of petitioners’ deceased father as a year’s support, and it was chargeable with notice of all the facts in connection with the sale of the property by Ellen A. Adams to Arnold Broyles and F. E. Callaway that a diligent inquiry would have disclosed. At the time Mrs. Adams sold it, it was unnecessary for her to sell the property for the purpose of securing a year’s support; and she had no authority to sell the interest of petitioners in the property for any other purpose, as the rents and profits from the same were sufficient to have supported the family, etc. If it had been necessary to sell the land for a year’s support for herself, and minor children, it would have been necessary to sell but one, two, or three acres of the land. Mrs. Ellen A. Adams did not sell the property for the purpose of securing money for a year’s support for herself and minor children, or for reinvestment, but for other purposes; and the money received from Broyles and Callaway was used by her in buying a house on the north side of Glennwood avenue in Atlanta for $2,700, and the title to the property was taken in her own name. This conveyance was illegal and fraudulent, and did not convey the title to petitioners’ property; and both conveyances above set forth are a cloud upon petitioners’ title. Mrs. Adams has abandoned possession of the property to Broyles and Callaway, who in turn delivered possession to the Bumpkin Investment Company; and petitioners are entitled to the rents and profits of the land from year to year, and they are entitled to recover from the Bumpkin Investment Company a six-eighths undivided interest in the land. Judgment is prayed for a six-eighths undivided interest in the land, and $50 per year mesne profits from September 3, 1912, and that the deed from Arnold Broyles and F. E. Callaway to Bumpkin Investment Company “be set aside and declared null and void,” and especially in so far as the same attempts to convey the interests of your petitioners in the land, as a cloud upon their title, etc.</p> <p>Arnold Broyles and F. E. Callaway filed a demurrer to the petition, among other things setting up that the defendants reside in Fulton county, “and, as they are not proper parties to said petition as an ejectment suit, said suit can not be maintained against them for the purpose of canceling the deed referred to in said petition as having been made to these defendants by Mrs. Ellen A. Adams.” On May 1, 1915, the defendants Broyles and Callaway amended their demurrer and alleged that the petition shows that neither one of the defendants sued in the case is a resident of DeKalb county, and that the superior court of DeKalb county is without jurisdiction to entertain plaintiffs’ suit. The trial judge (passing on the ease in vacation by consent of counsel for plaintiffs and defendants) sustained the amended demurrer and the first and second grounds of the original demurrer, overruled all the other grounds, and dismissed the action. The first ground of the original demurrer is to the effect that the petition shows that the Lumpkin Investment Company is in possession of the land in question, and therefore an ejectment suit will not lie against the defendants Broyles and Callaway. The second ground alleges that Broyles and Callaway reside in Fulton county, and, as they are not proper parties in an ejectment suit, the suit can not be maintained against them for the purpose of canceling the deed referred to in the petition as having been made to them by Ellen A. Adams. The amended demurrer alleges that no defendant here sued is a resident of DeKalb county, and that DeKalb superior court is without jurisdiction to entertain the suit. To the judgment sustaining the demurrers and dismissing the action the plaintiffs excepted.</p>

<p>Action for damages. Before Judge Hardeman. Toombs superior court. April 9, 1915.</p>

<p>Action for damages. Before Judge Park. Emanuel superior court. April 12, 1915.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. February 13, 1915.</p> <p>H. L. Gates and others filed an equitable petition against C. J. Allen. They alleged, in brief, as follows: They are the sole heirs of Thomas B. Gates, deceased, and as such own in common all of the right, title, and interest in a certain lot in the town of Pooler, as will appear more fully from an exhibit attached to the petition. At the time of his death he owned the lot in fee. During the years 1908, 1909, and 1910, the taxes due to the town were not paid, amounting to $8.25. The town undertook to levy an execution on the lot, treating it as “unknown wild land,” and proceeded to advertise it for ninety days prior to the sale on January 2, 1912. As a matter of fact the levy was not made until about a week after the first advertisement appeared, and therefore the sale was void, and the purchaser acquired no title. At the time of the sale the defendant was an alderman of the town of Pooler, and “instigated the sale of said property, he being fully aware of all the facts and details in regard to the levy and advertisement.” The property was bid off by some one who took a deed in the name of Annie M. Webster, who later conveyed the lot to the defendant. In December, 1913, within one year from the sale, the plaintiffs tendered to the defendant “the amount-paid by the purchaser at the said sale for the land, plus ten per cent, premium thereon from the date thereof; in fact the tender was in an amount almost double the purchase-price at the sale;” but the defendant refused the tender, and stated that it was unnecessary to make any further tender of any kind, as nothing would get the property “but a good lawsuit;” and he failed to allow them to redeem. On or about October 33, 1914, the plaintiffs tendered to defendant in cash the amount paid for the property, plus interest thereon at the rate of twenty per cent, per annum, but this was refused. The tenders are “continuous.” They pray, that the land be decreed to be redeemed; that the deeds from the town marshal to Annie M. Webster and from her to the defendant be canceled as a cloud on the title of the plaintiffs; that the defendant be required to execute a quitclaim deed to the plaintiffs; that the title be decreed to be in them; and for process.</p> <p>Exhibit A attached to the petition recited a conveyance from L. J. Collins to T. L. Jones in 1889, from Jones to H. L. Gates in 1893, and from H. L. Gates to Thos. E. Gates in 1895. It then recited the death of Thos. E. Gates in 1896 at St. Augustine, Ela., and, after the word “heirs,” set out the names of the plaintiffs. It then contained the statement that there was no administration and no debt.</p> <p>A demurrer to this petition, on numerous grounds, was overruled, and the defendant excepted.</p>

<p>1. A wife and husband brought separate suits against a railway company; the former for the recovery of damages for physical injuries alleged to have been received because of the negligence of the defendant, and the latter for the loss of the wife’s services consequent upon such injuries. By consent the cases were tried together, and each plaintiff recovered a separate verdict. On motion for new trial the verdict for the husband was vacated. Held, that, as the verdict was not demanded by the pleading and evidence, the first grant of a new trial will not be disturbed.</p> <p>2. A married woman whose capacity to labor has been permanently diminished by physical injury wrongfully inflicted upon her by a railway company may recover damages therefor ás an element or species of pain and suffering. The charge complained of confused impairment of capacity to labor recoverable as pain and suffering with actual damages for loss of earning capacity, and under the facts of the case was prejudicial error.</p> <p>3. Where the two actions described in the first headnote are tried together by consent, an assignment of error on a charge respecting the computation of damages in the husband’s case, not prejudicially affecting the defendant so far as a recovery in the wife’s case is concerned, will not be considered.</p>

<p>Writ of error; from Chatham. Motion to dismiss.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. May 6, 1915.</p>

Exception to auditor’s report. Before Judge Mathews. Bibb superior court. June 25, 1915. W. S. Irvine, who had been temporary administrator of the estate of E. D. Irvine, filed a petition in the court of ordinary against Sarah E. Irvine as permanent administratrix of the estate of E. D. Irvine, calling upon her for an accounting and settlement of certain claims asserted against the estate by the petitioner.

Injunction. Before Judge Hammond. Glascock superior court. November 1, 1915.

<p>The court did not err in directing the verdict, and in refusing a new trial.</p>

<p>Action for damages. Before Judge Pendleton. Fulton superior court. May 27, 1915.</p>

<p>Trover. Before Judge Ellis. Eulton superior court. August 3, 1915.</p>

<p>Complaint. Before Judge Ellis. Fulton superior court. May 33, 1915.</p>

<p>1. A municipal corporation has no authority to contract or incur any liability that is not authorized by its charter or some general law of the State, and a contract beyond the scope of its corporate powers is ultra vires and void.</p> <p>2. The City of Atlanta has no power, under its charter or the general laws of the State, to offer or pay a reward for information leading to the arrest of one charged with the murder of an inhabitant of such municipality. A general-welfare provision in its charter, conferring authority to adopt all by-laws and ordinances “for the prevention and punishment of disorderly conduct, and conduct -liable to disturb the peace and tranquility of any citizen or citizens thereof, and every other by-law, regulation, and ordinance that may seem to them proper for the security, for the peace, health, order, and good government of said city,” does not confer such power.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. June 22, 1915.</p>

<p>1. An oral contract by which one of the parties agrees to make a will with a devise of specific property to the other, as compensation for services rendered and to be rendered to the former during his life, is valid and enforceable.</p> <p>2. If the promisor in such a ease makes a will, which is probated, devising the specific property to another person in violation of the terms of the contract, equity will impress a trust upon the property, which will follow it into the hands of the personal representative or devisee of the promisor.</p> <p>3. If on the trial of an action against a devisee for specific performance of the plaintiff’s contract with the testator of the devisee, with reference to the land devised, it should be developed that, without fault of the plaintiff, but on account of the defendant himself, a specific performance of the contract is impossible, damages may be awarded for a breach of the contract.</p> <p>4. The basis of the action is to fasten a trust on the property of the testator in favor of the plaintiff, and to specifically enforce such a trust against the testator’s executor and the devisee claiming under the will violating the testator’s contract with the plaintiff, and in the alternative to. recover damages, if specific performance is impossible. The damages are measured by the value of the property promised to be devised, and not the value of the plaintiff’s services which furnished the consideration of the contract.</p> <p>5. An oral contract to devise lands falls within the operation of the statute of frauds; but where the party in whose favor the will is to be made has performed his part of the contract, and the other party dies leaving a will in which no devise is made pursuant to the oral contract, the disappointed party may apply to a court of equity for. specific performance of the contract, if it is one of such a nature that a court of equity would require specific performance.</p> <p>6. Where services are to be performed for another in consideration of an oral agreement by the terms of which the person is to be compensated by a devise in the will of the person for whom the services have been or are to be performed, the cause of action does not accrue until the death - of.the promisor and his failure to make the devise according to the terms of the contract.</p> <p>7. The probate of the will in solemn form is conclusive of its validity. In an action against the devisee, to impress a trust upon the property devised, because of the testator’s violation of his contract to devise the property to the plaintiff, it is irrelevant to inquire into the testamentary capacity of the testator, or any undue influence alleged to have been» exerted by the devisee in procuring the execution of the will, and under the facts of the case an instruction on these subjects is prejudicial error requiring a new trial.</p> <p>8. An allegation that an oral contract was made in a particular year may be supported by proof that it was made in a different year, where the date is not a material element in the description.</p> <p>9. An assignment of error upon the admission of testimony, where the evidence objected to is neither literally nor substantially set out, can not be considered.</p>

<p>Petition for specific performance. Before Judge C. S. Reid. DeKalb superior court. April 30, 1915.</p>

<p>Action for damages. Before Judge Shejipard. Effingham superior court. July 21, 1915.</p>

<p>Complaint. Before Judge Sheppard. Tattnall superior court. July 5, 1915.</p>

<p>1. The court having charged the jury in the language of the Civil Code (1910), § 2729, as to the duty of a common carrier generally, it was not error not to repeat the expression “which he is able and accustomed to carry” in other portions of his charge dealing with the duty of a railroad company to furnish cars for transportation of freight without unreasonable delay.</p> <p>2. A railroad company is under a duty to provide sufficient cars for transporting, without unreasonable delay, the usual and ordinary quantity of freight offered to it, or which might be ordinarily expected in its business.</p> <p>3. There may be things of such an unusual character that a railroad company is not bound, under its general duty as a common carrier, to provide cars or special facilities for their transportation. But if in the ordinary course of its business it is accustomed to receive lumber which requires cars forty feet in length for transportation, or holds itself out as a common carrier thereof, the duty to furnish ears for that purpose arises.</p> <p>4. If a railroad company failed to perform its duty in regard to providing facilities for reasonably prompt transportation of freight of a kind and quantity offered to it in the usual and ordinary course of business, in a suit for damages arising therefrom the mere fact that the company expected to get ears from other railroad companies, and that they refused to let it have such ears because they had an unusual demand therefor, would not necessarily relieve the defendant company from . liability.</p> <p>(a) But the condition of business, the demand for ears, whether usual and ordinary, or unusual and extraordinary, what the defendant had done with a view of providing facilities for the usual and ordinary demands of its business, and the ability or inability to get cars at the time in question, were facts for the consideration of the jury in determining whether the defendant had complied with its duty.</p> <p>5. The amount of the verdict found was not authorized by the evidence; and the case not being one in which a reviewing court can direct a modification, a reversal must result.</p> <p>6. The assignments of error on omissions to charge without request were not meritorious; nor was there merit in the grounds of the motion other than those not in accord with the rulings here made.</p>

<p>Action of libel. Before Judge Pendleton. Fulton superior court. December 31, 1914.</p>

Action for damages. Before Judge Pendleton. Fulton superior court. May 25, 1915. Mrs. F. M. Berry brought suit against George Powell, to recover damages for the homicide of her son.

<p>Action for damages. Before Judge Ellis. Campbell superior court. September 1, 1915.</p>

<p>Buie for contempt. Before Judge Hammond. Burke superior court. July 27, 1915.</p>

<p>Equitable petition. Before Judge Sheppard. Liberty superior court. January 19, 1915.</p>

<p>Action upon insurance policy. Before Judge Wright. Floyd superior court. March 24, 1915.</p>

Equitable petition. Before Judge Bell. Fulton superior court. July 13, 1915. On May 5, 1910, a charter was obtained for the incorporation of the Primo Motor Company, with a minimum capital stock of $200,000. On May.7 the charter was accepted by the corporators at a meeting at which $17,000 of the subscribed stock was represented. The corporators at that meeting subscribed for certain shares of stock, but have never paid for them.

<p>Intervention. Before Judge Brand. Clarke superior court. August 30, 1915.</p>

Appeal. Before Judge Bartlett. Polk superior court. June 28, 1915. Mrs. Mary G. Smith filed an application to the court of ordinary of Polk county for letters of administration on the estate of William H. Williams, deceased. A caveat was filed by Mrs. Willie Reed, who alleged that she was the daughter and sole heir of the decedent, and that there was no debt and no need of administration. The ease was carried to the superior court by appeal.

<p>Writ' of error; from Chatham. Motion to dismiss.</p>

<p>Equitable petition. Before Judge Summerall. Charlton superior court. July 17, 1915.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. January 29, 1915.</p>

<p>Equitable petition. Before Judge Freeman. Campbell superior court. June 8, 1915.</p> <p>Mrs. Anna M. Wright instituted an action against the Union City Bealty and Trust Company, a corporation, to compel the company to pay a certain promissory note for three thousand' dollars, which had been executed by J. H. Harris to another corporation called the Union City Brick Company, and duly transferred by that company to plaintiff. On the trial the judge directed a verdict for the plaintiff. The exception is to a judgment refusing a new trial. The petition contained allegations as just indicated, and others as to the ground upon which it was sought to hoid the defendant liable for the amount of the note, as follows: On May 12, 1909, Harris subscribed to four thousand dollars par value of the capital stock of the Union City Brick Company, and gave that company the note in question in part for such subscription. On the same day that company sold and indorsed the note to the plaintiff. On May 18, 1909, Harris executed a deed conveying certain property to the defendant, which contained, among others, the following clause: “I also convey my subscription for four thousand dollars ($4,000.00) of stock in the Union City Brick Company, which the company agrees to pay for according to my contract.” The defendant accepted the deed and went into possession thereunder. Harris became insolvent immediately after executing the deed, and before maturity of the note the brick company also became insolvent and was placed in the hands of a receiver. The above-quoted clause between Harris and the realty company inures to the benefit of plaintiff, and defendant in equity and good conscience ought to pay the note. Plaintiff has not been guilty of laches, is without remedy at law, and prays judgment for the amount of principal, interest, and attorney’s fees provided in the note.</p> <p>The defendant filed an answer, which was subsequently amended. It denied liability and any relation with the plaintiff, and alleged, among other things, the following: The entire clause included in the deed in regard to the purchase of the stock subscription contract was: “I also convey my subscription for four thousand dollars ($4,000.00) of stock in the Union City Brick Company, which the company agrees to pay for according to. my contract; and also all the royalties derived from a twenty [year] lease I hold from said Brick Company. I agree to transfer my interest in said lease on the back of same to the Union City Bealty and Trust Company.” The following were the circumstances under which the clause was included in the deed: When closing the negotiations which resulted in the deed, which was about one month before the date of the deed and before the date of the note held by plaintiff, Harris stated to defendant that he had agreed to subscribe for forty shares, of the par value of $100 dollars each, of the capital stock in the Union City Brick Company, not then organized; the subscription not to be paid for in money, but ten shares were to be paid for in wood, and the remaining thirty shares to be paid for by applying certain royalties which the brick company would be due him for a twenty-year lease of certain land included in that sold to defendant, which provided for a monthly royalty according to the number of bricks manufactured on the land, and a minimum sum for each month during the entire term of the lease, whether or not any bricks were manufactured, the amount of the royalties being greatly in excess of the stock subscription. He proposed to put the stock-subscription contract in the sale, to be paid for as represented, and to be the property of the defendant. After all the negotiations had been completed and nothing remained except to execute the deed to defendant, and pending the interval before signing the deed, Harris signed the note in question, for which he received the thirty shares above mentioned, without disclosing the fact to defendant,, and finally executed the deed containing the clause as set out in the answer, without informing the defendant of any change in the circumstances; and defendant accepted the deed without notice that the note had been given, and on the faith of the truth of the representations of Harris above set out. In accepting the deed containing the clause it was not intended to agree to pay the note which had not been known to exist; nor to pay the stock subscription except in the manner Harris had represented that it was to be paid. As a matter of fact Harris never had any lease contract with the brick company or contract for royalties, and did not convey any to defendant, and wholly failed to comply with the obligations imposed upon him by the terms of the clause in the deed. Hnder the circumstances the covenant by defendant expressed in the deed was one to pay for stock in the manner as detailed by Harris to be delivered to defendant, and had no reference to the assumption of payment of the note held by plaintiff. Harris could not in law or equity compel defendant to pay the note made by him; much less could the brick company, or the plaintiff as transferee of the brick company, claiming under Harris, compel it to do so; for no one can avail himself of any benefits under the contract .through Harris when he had no rights thereunder.</p> <p>At the trial the plaintiff relied, for proof of a subscription contract for stock in the brick company, (1) upon a paper signed by J. H. Harris and L. M. Wright, in which Harris was designated as party of the first part and Wright “and his associates” (naming two other persons) were parties of the second part. It purported to lease certain land owned by Harris to the other parties for the manufacture of bricks, and expressed numerous cross-obligations upon the part of the other parties in regard to locating and operating on the land a plant for the manufacture of bricks. The paper was dated April 8, 1909, and stated that it should be operative until April 15, 1909; but there was a clause giving the second parties the right of renewal for a term of twenty years, if they did so on or before April 15th. After covering in detail matters as indicated above, the paper provided: “It is mutually understood and agreed between the parties hereto, and made a part of this lease and contract, that the said party of the second part and his associates shall have the privilege and right to transfer and assign all their right, title, and interest into and under this contract to a corporation to be hereinafter organized by the said parties of the second part for the purpose of manufacturing and selling brick on the property herein described and at the plant herein noted, said corporation to be known as the Union City Brick Company, and to have a minimum paid-in capital stock of ten thousand dollars ($10,000.00). It being agreed and understood that said L. M. Wright is to be the General Manager of said Brick Company when organized. Said first party is to have $1,000.00 of stock in said company, same to be paid for in wood and clay. It is also agreed by said L. M. Wright and associates that said J. H. Harris is to have $3,000.00 of stock in said company, for which said L. M. Wright or his company agrees to accept the notes of J. H. Harris, payable on or before Feb. 27th, 1910, at 7% interest. It is also mutually agreed and understood between the parties hereto, that, whenever the capital stock of said company is increased from 15,000, the said J. H. Harris is to have the option of taking his pro rata share of such increase.” (2) The plaintiff relied also upon evidence which showed that the foregoing paper was in the possession of Harris when he made the representation before referred to, in the negotiation of the sale upon which the deed to the other corporation was predicated; and that Harris refused to sign, when tendered to him, a proposed renewal contract. The date of this tender of the proposed renewal paper was not shown. It was sent to Harris in an undated letter. All the allegations of the petition were proved as alleged. The evidence touching the organization of the realty company (the defendant) and the circumstances attending the sale to it and its acceptance of the deed was as follows: Harris owned certain land in which he had interested F. G. Boat-right and S. G. Slack, as prospective purchasers. They agreed upon terms of purchase of interest therein, and to organize a corporation to carry out the enterprise. Instead of taking conveyance of land, it was determined to let Harris convey all the land to the corporation and receive therefor all the stock and immediately transfer to Boatright and Slack specified numbers of shares of stock, amounting in the aggregate to 51 per cent, of the stock. The charter was obtained in April, and the organization took place on the 18th day of May, on which date the deed by Harris to the realty company was signed. At the organization meeting, stock in the corporation was formally subscribed by Harris. All the stock that was issued was issued to Harris, who immediately transferred 51 per cent, of the entire stock in the corporation to Boatright and Slack severally. At the same time Slack was elected president, and Harris vice-president. Harris also executed the deed to the corporation and delivered it to Slack, who received it as president of the corporation. The deed and all papers relating to the organization had been previously prepared, and the meeting at which all occurred as just indicated lasted about thirty minutes. The representations which were alleged in the defendant’s answer to have been made by Harris to defendant were made to Boatright and Slack about one month before the organization meeting, at which time, on the faith of such representations, they agreed to become purchasers and members of the enterprise. In all other respects there was evidence to support all the allegations made in the answer. The evidence was without conflict upon all material points, except on the question as to how the thirty shares of stock in the other corporation (the brick company) were to be issued to Harris by that company and paid for. Harris testified that they were to be paid for in royalties to be received under the lease contract; and Wright and Baxter, for the plaintiff, testified that there was no agreement to allow them paid' for in that way. There was no denial of the testimony of Harris, Boatright, and Slack that Harris represented to the latter two that in his subscription contract with the brick company Harris was to pay for the stock in clay and royalties under the lease contract, and not in money.</p>

<p>Attachment. Before Judge Mathews. Bibb superior court. June 7, 1915.</p>

Action for damages. Before Judge C. S. Reid. Colquitt superior court. April 17, 1915. In an action for damages for the alleged negligent killing of a horse belonging to him, the plaintiff set forth in three counts his cause of action.

<p>1. There was no error in overruling the demurrers to the petition of the plaintiffs, except as to one matter, which will be dealt with below.</p> <p>2. It is not proper language to be employed in a petition that the plaintiffs, upon investigation, discovered that a named one of the defendants “had lied as to the supposed transactions had with” a stated person. On objection duly raised by demui’rer and motion to strike, this language should have been stricken from the petition. But under the peculiar facts of this case, the failure to do so will not require a reversal,</p> <p>3. There was no error in overruling either of the motions to continue the case.</p> <p>4. While during the examination, as a witness, of a defendant who was charged with having perpetrated a most peculiar and flagrant fraud, the presiding judge put a number of questions to him, some of which tended to bring out evidence showing his bona fides or mala fides, yet, in view of the unusual evidence which the witness had given in his own behalf, and of the character of the case, the examination by the court was neither so argumentative in character nor contained such expressions or intimations of opinion as to require a reversal.</p> <p>5. There was no abuse of discretion in taking up this case for trial in advance of some others which were on the calendar.</p> <p>6. An agent to buy and resell property for his principals can not lawfully make a secret profit from the transaction; nor is it necessary to the application of this rule that the principal must show actual or moral fraud. The charge to the jury on this subject was applicable to one aspect of the ease.</p> <p>7. If an agent for the purchase and resale of property for his principals fraudulently represented to them that the purchase-price was a stated sum, when it was much less, and thus procured them to pay more than the full price of the property, when he led them to believe that they were only paying for a three-fourths undivided interest therein, and he took the excess and caused the deed to be so made as to convey the other fourth interest to his uncle, 'who was held out as being a purchaser to that extent, though he paid nothing, and the uncle in turn conveyed the one-fourth undivided interest in the land to the father of the agent, who later conveyed it to a purchaser for value, who resided in another State (the agent receiving the proceeds of this sale), if the uncle and father, with knowledge of the fraud, made the last-mentioned conveyances, they would be liable, with the unfaithful agent, to account to the principals. •</p> <p>8. The charge of the court limited the extent of the recovery which the jury might find to stated amounts; and this limitation was such as to restrict the jury to an amount which was clearly recoverable, if a recovery should be had by the plaintiffs. Possibly the limitation was hurtful to the plaintiffs. It was not injurious to the defendants; but tended to render some of the other questions raised immaterial, by excluding a recovery as to an amount involved in them.</p> <p>9. None of the other grounds of the motion for a new trial require discussion or a reversal, in the light of the evidence and the charge as a whole.</p>

Petition for injunction. Before Judge Thomas. Brooks superior court. September 18, 1915. Covington Graham and other citizens and taxpayers of the Barney School District in Brooks County, in their own behalf and in behalf of other taxpayers of the district, brought their petition seeking to enjoin the collection of a tax levied by the county commissioners on the property situated in said school district.

<p>Attachment. Before Judge Pendleton. Fulton superior court. February 3, 1915.</p>

<p>1. A donation of money was made to a municipality for library purposes, and was accepted by the library trustees. They made a personal loan of it, taking a note payable to J. W. and M., “library trustees, their successors, or order.” The payees brought suit in their own name, with the added words “library trustees.” Held, that inasmuch as the plaintiffs are liable to the city for the illegal loan, they may maintain an action on the note in their own names, and the added words “library trustees” will be treated as words of description and surplusage.</p> <p>2. As the loan was an illegal transaction and the lenders were personally liable to the city for the money, the successors of the trustees will not be permitted to object to the bringing of the suit by the plaintiffs in their individual names.</p> <p>3. A donation made to the library trustees of a city and accepted by them becomes the public property of the municipality; and if the trustees loan that money, and the borrowers execute a note therefor, it is no defense to the note that the municipality by ordinance gratuitously released the makers from liability. Such gratuitous release was void as being, in effect, a donation and a diversion of public property to private use.</p>

Equitable petition. Before Judge Park. Morgan superior court. August 14, 1915.

<p>.Tt was not error to sustain a general demurrer to the petition.</p>

<p>Where a recognizance in a criminal case was forfeited during the September term, 1914, of the court, and a sci. fa. was thereupon issued, requiring the cognizor and his surety to show cause, at the next September term, why judgment should not be rendered against them for the amount of their forfeited recognizance, it was not allowable, over the objection of the surety (the cognizor not having been served) to amend the sci. fa., on April 2, during the March term, 1915, so as to require the defendants to appear and show cause on the fourth Monday in March, 1915. Such amendment being invalid, subsequent proceedings in the case at the March term, 1915, were nugatory, and rulings therein made, to which exceptions were taken, will not be reviewed by the Supreme Court.</p>

<p>Arbitration and award. Before Judge Thomas. Lowndes superior court. June 14, 1915.</p>

<p>The plaintiff was employed by the defendant as a detective or inspector to watch in its railroad yards. While walking between the tracks on which ears were standing, in order to inspect them and to see that nothing was wrong, he discovered two men trying to open a ear. He approached and inquired what they were doing; and one of them struck him on the head with a heavy instrument, seriously injuring him. He alleged that the defendant was negligent: in not informing him of the dangerous position he would occupy in doing such detective work; in removing from him an assistant who, according to previous understanding, was to work in the yard with him, so that each of them would be a protection to the other; and in not providing proper lights, that he might see when he was approaching danger, and so save himself from attack and injury. Held, no error in dismissing the action on general demurrer.</p>

<p>Action for money had and received. Before Judge Bell. Fulton superior court. March 6, 1915.</p>

<p>Intervention. Before Judge Bell. ’Fulton superior court. August 19, 1915.</p> <p>T. K. Bowles, a policyholder, for ‘himself and other policyholders, filed a petition against the American Life and Annuity Company, a mutual assessment insurance company, for the winding up of the company’s business, on the ground of insolvency. On-the same day N. G. Parker and Horace Sandiford, alleging themselves to be creditors of the company by virtue of the ownership of certain income certificates, in their own behalf and in behalf ; of other holders of income certificates, filed a petition against the company for the liquidation of its business through the medium of a receivership, on the ground of insolvency. Four days later W. A. Wright as insurance commissioner, through the attorney-general, filed a petition against the company, praying for the liquidation of the company under his control and direction as insurance commissioner, pursuant to the act approved August 19, 1912. These causes were consolidated. J. B. Porter, a holder of income certificates issued by the company, in behalf of himself and other holders of income certificates, filed an intervention in the cause brought by the insurance commissioner. He was made a party, subject to the right of any party to demur or except. He amended his petition so as to recover judgment against the policyholders, and on his motion an order was passed making certain policyholders, as representing different classes, parties to the suit. To the intervention of Porter, as thus amended, general and special demurrers were filed by the insurance commissioner. On motion of the insurance commissioner the court vacated the order making policyholders parties and dismissed the intervention as to them. The operation of this order was suspended to allow amendment, and Porter tendered an additional amendment, which was allowed subject to demurrer. This amendment prayed for a reformation of the contract evidenced by the income certificates, and for incidental relief. To the intervention of Porter as amended the insurance commissioner filed a general demurrer, which the court sustained; and Porter excepted.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. June 17, 1915.</p>

<p>Action, upon insurance policy. Before Judge Park Emanuel superior court. May 21, 1915.</p>

<p>Action for damages. Before Judge Park. Emanuel superior court. April 14, 1915.</p> <p>In an action for damages against a railroad company by a widow for the homicide of her husband, the petition alleged that the homicide occurred about 13 o’clock in the day, under the following circumstances: Between the town of Adrian and Peddy’s station on the defendant’s railroad and about one and one half miles east- of the first-named place is a railroad trestle approximately 130 feet long, 33 feet high, and nine feet wide, under which passes a public highway known as the Wrightsville road. A curve to the left in the railroad-track commences at “Skinners Cut” about fifteen hundred feet east of the trestle, and the track straightens about one thousand feet before reaching the trestle. The distance between Peddy’s station, a populous community, and Adrian along the railroad-track is about half that along the public road, and the public generally have continuously for a long time used a well-defined pathway extending along the road-bed, “parallel to the track immediately outside of the rails thereof until it reaches the aforesaid trestle, then crosses the outside rail of said track and runs over said trestle parallel with and between said rails.” On the day of the homicide the plaintiff’s husband was walking from his home to Adrian, using the pathway, and when on the trestle and about forty feet from the west end, being about two thirds across it, the defendant’s passenger-train from the east came around the curve behind him at the rate of about forty-five miles per hour. When it came in view he saw it and “quickened his speed immediately,” and started to run, and when at a point seven feet from the west-end of the trestle, while “running fast as possible,” he was struck by the engine. In approaching, it was possible for the fireman seated on the left to have seen him for a distance of about seven hundred and fifty-nine feet, and for the engineer seated on the right to have seen him about three hundred and fifty-nine feet. The train sounded no whistle or other alarm until it reached the eastern end of the trestle, not more than 135 feet from plaintiff’s husband, and the brakes were not applied until' immediately before striking him, and the speed was slackened but little if any. The train was light; and if a proper lookout had been kept and proper efforts had been made to slacken the speed, the train could have been stopped in time to avoid the injury and to allow plaintiff’s husband to reach the end of the trestle before being struck. There was no time or opportunity “to crawl on to or hang by his hands from the ends of the ties,” or do otherwise to save himself than “run westward in an effort to get across the trestle.” On account of the train “rounding the curve” in his rear, and the passing of an automobile on the public road almost directly, under him, he was prevented from hearing the noise of the approaching train. By reason of the long use of the path by the general public, he was using the path as an implied licensee; and the defendant company was chargeable with notice of the use, and its employees should have anticipated the presence of licensees on the track and kept a proper lookout in order to prevent injuring any person thereon, “and especially so at a point immediately after rounding a sharp curve and approaching a trestle.” The grounds of negligence alleged were: (a) failure to keep a proper lookout at the place of the catastrophe, where defendant was under duty to anticipate the presence of human beings on the tracks; (6) running at a dangerous and unusual rate of speed under circumstances as indicated; (c) failure, within the distance from where the engineer could have seen plaintiff’s husband, to stop the train, it being possible by the exercise of ordinary care to have stopped a train properly equipped with approved appliances; (d) failure to blow the whistle at the blow-post before reaching the Wrightsville road crossing, as required by law; (e) striking plaintiff’s husband after the employees of thedefendant had discovered the perilous position in which he was, “or after same could have been discovered by the exercise of ordinary care.”</p>

<p>Trover. Before Judge Hammond. Bicbmond superior court. March 20, 1915.</p>

<p>Action upon insurance policy. Before Judge Hammond. Biehmond superior court. April 19, 1915.</p>

<p>Trover. Before Judge Charlton. Chatham superior court. April 7, 1916.</p>

<p>Equitable petition. Before Judge Hammond. Bicbmond superior court. April 29, 1915.</p>

<p>Libel for divorce. Before Judge Charlton. Chatham superior court. April 22, 1915.</p> <p>W. G. Williams brought a libel for divorce against Sallie Williams, alleging, that petitioner and defendant intermarried on the 22d of May, 1903; that shortly after the marriage the defendant deserted and abandoned petitioner; that since that time his wife has lived separate and apart from him; and that this desertion has continued for more than three years prior to the filing of the suit. After the evidence of the plaintiff was submitted at the second hearing, the court granted a nonsuit, and to this order the plaintiff excepted.</p> <p>According to the testimony of the plaintiff in his own behalf, the parties were married at a magistrate’s office, and after the ceremony “she went one way and I went the other. We have never lived together since that time. About a year and a half after that, upon advice of my father, I went to my wife and asked her to come and live with me at my father’s house, which was my home and the only home I have ever had. When I offered her my father’s home and told her that I wanted her to come and live with me as my wife, she refused to come, and said she would not live with me. Some years after this she filed suit against me for alimony for the support of herself and child, and ever since that time I have paid her alimony . . I earn $100 a month. At the time I married her I was 21 years old and earned $25 a month. After the ceremony was performed in the magistrate’s court we had nothing to do with each other, except that she asked me for money to support her, and I gave her money from time to time for about eighteen months. She did not ask me to live with her. I saved my money and paid it on account of the purchase of my father’s house. As I had to pay her money for herself and her child, my father thought that we could save money -by having her, and upon my father’s advice I went to where she was living and asked her to come and live with me'at my father’s home. She refused. We have never lived together as man and wife during the twelve years we were married. . . One time I fell behind paying alimony to my wife, but the reason was I was sick in the hospital and had heavy expenses. . . I have always lived with my father and mother, and their home is my home, and I am still living with them. I have not again asked her to live with me, because I thought it was unnecessary to keep on asking her to come when she flatly refused to live with me. I am not willing to live with my wife now, and have not been willing to live with her, or have her live with me, for some time. I never offered to live with her except on that one occasion.”</p> <p>A letter from the plaintiff to defendant was read in evidence, which was as follows:</p> <p>“Savannah, Ga., Sept. 11, 1903.</p> <p>“Mrs. Sallie Baker Williams: Yours of Sept. 8th received, and contents noted. I least expected a letter from you, as you said in your former, “no more black and white for you.” As far as being in touch of each other it suits me best; for I am as near and dear to you as I ever care to get. You have certainly told unwavering falsehoods on me, and you have done everything you thought degrading to wreck me, despite all the favors I done for you; but mark well it’s all ahead of you, and in a greater hand than the law and any of its executors. If I’ve wronged you, I will meet it too, and am perfectly willing to resign to my fate. I may be guilty of what you say I am; but you will admit you’ve wronged me before ‘Justice;’ yes, you, your sister and friend. You may have been forced to take such steps after having related your side of the story to your friends and well-wishers, but I am sure they have advised you what they themselves would not do; and if they could have heard my end of the ease, they would have seen where the matter could have been adjusted in an easier way. I have explained circumstances to you before you took steps to this disgraceful end, but you were determined to have me since you first met me; and that at any cost. I could tell from your action on first meeting, and from others which I need not tell now; for least did I think you’d get it at such cost. I was, and am, willing to do anything I possibly could, despite all I knew of you, save one, and that you know, for I’ve told you. The law I know is binding, but there’s no law more forceable than one’s determination. I have a conscience, and I know I’m a Christian, and by these I’ll be guided. You will have no trouble in me doing the right thing as far as I’m able — provided the child be mine; but to live with you a day I will never as long as life lasts. I must actually tell you, from the mean and low manner in which you treated me, and the deadly threats your mother and sister made me, in the presence of others, I would consider my life in danger to be around any of you. I am willing to do just what I was before you prosecuted me, and that was anything as far as I was able, but marry you; but since you have forced me to marry you, I think, for the peace and happiness of both, we had better, and must, be apart. Where there’s no love there can be no happiness. Still you have my sympathy as a Christian, my support as a father of the child, if it’s mine, and my name by law. Yet, I am,</p> <p>Your miserable husband.</p> <p>“P. S. I don’t mean no insolence nor contempt, but simply want to express fully my feelings about the matter. I am not in a passion either, neither am I, like you, afraid of black and white; they can only speak what you think, and if your thoughts be disrespectful, you have need to fear writing them.”</p> <p>G. W. Williams, the father of the plaintiff, gave testimony substantially the same as that of his son.</p>

<p>Assumpsit. Before Judge Mathews. Bibb superior court. April 23, 1915.</p>

<p>Writ of error; from Bibb. Motion to dismiss.</p>

Equitable petition. Before Judge Thomas. Berrien superior court. September 4, 1915. This is an action brought by John B. Gaskins against Doeia Gaskins, his wife, and W. T. Bigell Sr., her father. The substance of the petition as amended is to the following effect: The plaintiff, in January, 1908, owed only one debt, and that to C. Strickland.

<p>Equitable petition. Before Judge Ellis. Eulton superior court. January 22, 1915.</p>

<p>Equitable petition. Before Judge Walker. Jenkins superior court. July 19, 1915.</p>

<p>The plaintiff sought specific performance of an alleged reservation in a deed executed by him to the defendant; but’the resex-vation is too indefinite and uncertain to constitute a basis of the relief sought.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. June 21, 1915.</p>

<p>A wife may borrow money and give it to her husband, although the lender knows that the husband is to have the use of the same. But if the lender is the 'husband’s creditor and makes the loan to the wife for the purpose of paying the husband’s debt to him, the transaction falls within the statutory inhibition against the wife’s liability for the debts of her husband. The court’s charge on this subject was too limited, and under the facts of the case was prejudicial error.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. February 12, 1915.</p>

<p>Complaint for land. Before Judge Higbsmith. Jeff Davis superior court. March 25, 1915.</p>

<p>Equitable petition. Before Judge Ellis. Fulton superior court. February 4, 1915.</p>

<p>Divorce. Before Judge Ellis. Fulton superior court. January 30, 1915.</p>

<p>Petition for infraction. Before Judge Pendleton. Fulton superior court. August 11, 1915,</p>

<p>Action on insurance policy. Before Judge Smith. DeKalb superior court. July 14, 1915.</p>

<p>Petition for injunction. Before Judge Hammond. Richmond superior court. September 24, 1915.</p>

<p>Equitable petition. Before Judge Charlton. Chatham superior court. March 1, 1915.</p>

<p>Appeal. Before Judge Charlton. Chatham superior court. May 22, 1915.</p>

<p>Trover. Before Judge Charlton. Chatham superior court. August 11, 1915.</p>

<p>Habeas corpus. Before Judge Charlton. Chatham superior court. October 18, 1915.</p>

<p>Writ of error; from Evans. Motion to dismiss.</p>

<p>Complaint for land. Before Judge Sheppard. Liberty superior court. June 9, 1915.</p>

<p>Action for breach of contract. Before Judge Mathews. Bibb superior court. May 1, 1915.</p>

<p>Claim. Before Judge Mathews. Bibb superior court. June 25, 1915.</p>

Equitable petition. Before Judge Gilbert. Taylor superior court. June 10, 1915. Southern Pacific Guano Company obtained a judgment against E. B. English. ' Execution issued on the judgment, and was levied on certain cotton. Reynolds Banking Company interposed a claim, and caused the sheriff to deliver the cotton to it on its giving a bond conditioned to have the cotton forthcoming on the day of sale.

Petition for injunction. Before Judge Thomas. Colquitt superior court. July 3, 1915. On an interlocutory hearing of an equitable petition, from the allegations thereof and those of the answer and the agreed statement of facts upon which the case was tried, the following appeared: On February 33, 1914, the City of Moultrie had in its treasury $35,694, the proceeds of the sale of bonds amounting to $35,000, with premium of $694.

Complaint. Before Judge Bell. Fulton superior court. December 29, 1914.

<p>Distraint. Before-Judge Bell. Eulton superior court. March 16, 1915.</p>

<p>Petition to cancel deed. Before Judge Pendleton. Eulton superior court. May 31, 1915.</p>

<p>In the 15th item of his will a testator devised certain property to one of his children for life, and, upon his death leaving lawful child or children him surviving, the property to vest in them in fee, hut, upon his death leaving no children him surviving, the property to be equally divided between six named remaindermen, children of the testator, one of whom was Nancy Ellen Roach. The sixteenth item was as follows: “If, at the time any remainder •created by or arising under this will would vest, any one of my children now dead or dying hereafter before that time shall have no child or children living, the share of such deceased child of mine shall go to the surviving brothers and sisters, and in case one of the latter shall have died as aforesaid, leaving a child or children living at the time aforesaid, such child or children shall represent the parent per stirpe in the division. . . And grandchildren of any son or daughter of mine now dead or dying hereafter as aforesaid shall take per stirpe .with the children of such son or daughter.” At the death of the testator Nancy Ellen Roach was in life and had six living children. One of these children, E. W. Roach, married, and died before his mother, leaving a widow, Rena M. Roach, and a son, McDowell Roach. Subsequently to the death of Nancy Ellen Roach McDowell Roach died, and by his last will bequeathed his entire estate to his mother, Rena M. Roach. The life-tenant named in the 15th item died subsequently to the death of McDowell Roach. Held, that Nancy Ellen Roach took a defeasible vested remainder in the property devised in the 15th item, and upon her death her surviving children and grandchild, McDowell Roach, became substituted devisees and as such took the vested remainder devised to her. Held further, that Rena M. Roach is entitled to share equally with the five surviving children of Nancy Ellen Roach, taking one sixth interest in the remainder estate devised to Nancy Ellen Roach.</p>

<p>Petition for construction and direction. Before Judge Bell.. Fulton superior court. August 11, 1915.</p>

<p>Equitable petition. Before Judge Smith. DeKalb superior court. August 12, 1915.</p>

<p>1. A deed to A “as trustee for Ms legal heirs” is a conveyance to A as trustee for his children in esse at the time the deed is executed.</p> <p>2. A deed to A “for and during his natural life, and at his death to be „ equally divided between the heirs at law of” A, creates a life-estate in A, with remainder to his children; the remainder estate is vested in the children in esse at the time of the execution of the deed, subject to be reopened to let in after-born children. Upon the death of a child in esse when the deed was excuted, before the death of the life-tenant, leaving a husband and a child, the latter also dying before the life-tenant’s death, the husband succeeded by inheritance to the share of the deceased remainderman.</p>

<p>Equitable. petition. Before Judge Hammond. Richmond superior court. March 13, 1915.</p> <p>The Citizens & Southern Bank brought suit against the Irish-American Bank as maker, and James P. Armstrong and Patrick Armstrong as sureties, upon a promissory note dated December 2, 1913, and due January 1, 1914, which contained this clause: “To secure the prompt payment of this note, as well as any other liability of ours to the Citizens & Southern Bank, due or to become due, or that may be hereafter contracted, we have deposited vsdth said Bank, and pledged to it as collateral security, the following property, viz.: Customers’ Notes as per list, Security Deed from J. P. Armstrong on real estate in Richmond County, Mortgage on Plant of Industrial Lumber Company by J. P. Armstrong.” The Irish-American Bank filed no defense. J. P Armstrong filed, a plea of bankruptcy, which, on motion of the plaintiff, was stricken. The plaintiff amended its petition by striking its prayer for a general judgment in personam against J. P. Armstrong, and as to him prayed only for the foreclosure of a certain security deed. Patrick Armstrong filed a demurrer, and a plea claiming that upon certain grounds therein set forth he was discharged and released from liability as surety on the note. There were amendments both to the petition and to the pleas. Patrick Armstrong’s demurrer was overruled. • At the conclusion of the evidence, and after argument of counsel, the court directed a verdict for the plaintiff. Patrick Armstrong made a motion for a new trial, which was overruled.</p>

<p>Petition to cancel deed. Before Judge Hammond. Richmond superior court. February 22, 1915.</p>

<p>Specific performance. Before Judge Charlton. Chatham superior court. May 18, 1915.</p>

<p>Action on bond. Before Judge Mathews. Bibb superior court. June 25, 1918.</p> <p>E. D. Irvine died on November 8,1910, leaving an estate consisting of a “music goods business.” W. S. Irvine (a brother of the deceased) was appointed temporary administrator upon the estate, and signed a bond as principal, with the Title Guaranty and Surety Company of Scranton, Pa., as surety, conditioned to “carefully collect and preserve from waste or loss all goods, chattels, rights, credits, and effects, of the said E. D. Irvine, deceased, . . and the same being so preserved do surrender up such estate and effects . . unto the legal and proper administrator when appointed on the estate of said E. D. Irvine, and a true accounting make therein.” C. M. Wiley, suing for the use of Sarah Edna Irvine as administratrix of the estate of E. D. Irvine, brought this suit against W. S. Irvine as principal, and the Title Guaranty and Surety Company of Scranton, Pa., and showed substantially the following: Sarah Edna Irvine is the duly qualified administratrix upon the estate of E. D. Irvine, deceased. Wm. S. Irvine qualified as temporary administrator of the estate, and entered into a bond obligation as principal in the sum of $20,000, with complainant, C. M. Wiley, and the Title Guaranty & Surety Company of Scranton, Pa., as surety, the condition of the bond being as set out above. The defendants have been guilty of a breach of the bond, in that the temporary administrator, W. S. Irvine, fails and refuses to surrender to the permanent administratrix, and to make a true accounting thereof, certain property, money, and effects which came into his hands as temporary administrator. By reason of the breach of the bond the principal and surety on the bond are indebted to the plaintiff in the sum of $10,000, or other large sum, for which plaintiff prays judgment.</p> <p>The defendants filed their answer, averring that all the property of E. D. Irvine, deceased, which came into the possession of the temporary administrator was “the going business,” being a music 'mercantile business, and that it was preserved and surrendered to the permanent administratrix and a true account made by the defendant, although the plaintiff failed and refused to account to the temporary administrator for advances made by him for the estate as set out, and that the plaintiff was indebted to the defendant in the sum of $1239.25, besides interest, which the temporary administrator advanced to the estate; that the temporary administrator had paid out of the moneys collected by him for the estate, as a part of the costs and expenses of administration, the sum of $305.93, which belongs to the piano factories which owned or had-8n interest in the leases on which the defendant was collecting as such administrator, such payments being made before the defendant ascertained that the money belonged to the factories and not to the estate, and defendant is liable to the factories for the money, and the estate is liable therefor to the defendant. While acting as temporary administrator, this defendant, under order of Bibb court of ordinary, borrowed $250, and defendant is liable therefor, and the estate is liable to defendant for that sum. The defendant prays that the sum of $1239.25 be set off against the plaintiff’s demand.</p> <p>The case was referred to an auditor, who found in favor of the plaintiff and against the defendants the sum of $1101.61. When the case was called for trial, it was stated in open court by counsel for the plaintiff that “the judgment rendered or recommended by the auditor had been paid by the surety company,” and it was stated by both sides that all that remained in the case to be tried was the cross-action or set-off of the defendant Irvine, this settlement having been made without his consent. Exceptions of law and fact were filed to the auditor’s report. The court rendered a judgment overruling all of the exceptions filed by the defendant Irvine, and rendered a judgment in favor of the plaintiff for the amount found by the auditor. To this judgment Irvine excepted.</p>

<p>Action for damages. Before Judge Park. Baldwin superior court. March 23," 1915.</p>

<p>Beceivership. Before Judge Littlejohn. Sumter superior court. December 21, 1915.</p>

<p>The exceptions to the rulings of the court upon the demurrers to the amendment to the defendant’s answer were without merit, and the verdict of the jury was demanded under the evidence.</p>

Ejectment. Before Judge Kent. Laurens superior court. July 27, 1915. John D. Overby and others, the only children and heirs at law cf Jennie G-. Overby, the last-named being the daughter of John T. Duncan and Elizabeth S. Duncan, brought ejectment against I. O. Scarborough.

<p>Equitable petition. Before Judge Thomas. Berrien superior court. September 4, 1915.</p>

<p>Affidavit of illegality of execution. Before Judge Highsmith. Glynn superior court. September 14, 1915.</p>

Buie for contempt. Before Judge Highsmith. Glynn superior court. September 14, 1915.

<p>Libel for divorce. Before Judge Pendleton. Fulton superior court. May 13, 1915.</p>

<p>Action for damages. Before Judge Ellis. Eulton superior court. September 1, 1915.</p>

Equitable petition. Before Judge Mathews. Bibb superior court. June 29, 1915. Petitioners are the heirs at law and next of kin of Elam Alexander, who died testate in the year 1863, and whose will was duly probated.

<p>Petition for injunction. Before Judge Mathews. Bibb superior court. November 27, 1915.</p>