Volume 146 — Georgia Reports

<p>Injunction. Before Judge Highsmith. Camden superior court. March 18, 1916.</p>

<p>Injunction. Before Judge Summerall. Ware superior court. February 12, 1916.</p>

<p>The words “final trial,” in paragraph 10 of the declaration of rights (Oivil Code of 1910, § 6366), providing that “no person shall be compelled to pay costs, except after conviction on final trial,” mean such trial, in the court having original trial jurisdiction of the case, as is the basis of the entry of judgment finally disposing of the action in such court, and do not apply to proceedings in an appellate court.</p>

The Court of Appeals certified the following questions (in Case No. 6837): 1.

<p>The evidence raised the issue whether the homicide was voluntary manslaughter or murder, and the accused was legally entitled to have that issue submitted to the jury. Accordingly, it was error to overrule a motion for new trial based upon the ground that the court did not instruct the jury on the law of voluntary manslaughter.</p>

<p>Indictment for murder. Before Judge Patterson. Elbert superior court. December 27, 1915.</p>

<p>Indictment for murder. Before Judge Worley. Franklin superior court. April 29, 1916.</p>

<p>Indictment for murder. Before Judge Hardeman. Bulloch superior court. December 6, 1915.</p>

<p>Indictment for murder. Before Judge Highsmith. Glynn superior court. March 9, 1916.</p>

<p>1. Evidence of the conduct of one accused of crime, indicating a consciousness of guilt, is admissible against him on trial for such crime. Where one charged with murder, and confined in jail awaiting his trial, conducts himself for the purpose of inducing the belief that he is insane, when in point of fact he is sane, such simulation of insanity is competent evidence, where on the trial he sets up in his statement that he killed the decedent to prevent the debauchery of his wife.</p> <p>2. Other grounds of the motion for new trial are without merit, and the evidence supports the verdict.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. January 29, 1916.</p>

<p>Petition for injunction and receiver. Before Judge Brand. Clarke superior court. March 11, 1916.</p>

<p>Complaint. Before Judge Meadow. Franklin superior court September 28, 1916.</p>

<p>■Complaint. Before Judge Patt.erson. Milton superior court. October 6, 1915.</p>

<p>Complaint. Before Judge Fite. Dade superior court. October 11, 1915.</p>

<p>Equitable petition. Before Judge Wright. Walker superior court. December 15, 1915.</p>

<p>Petition for injunction. Before Judge Wright. Floyd superior court. March 3, 1916.</p>

<p>Petition for injunction. Before Judge Thomas. Berrien superior court. February 12, 1916.</p>

<p>Petition for injunction. Before Judge Sheppard. Tattnall superior court. March 18, 1916.</p>

The Court of Appeals certified the following question (in Case No. 7328) : “Is a juror who was put upon a defendant on a former trial under the same indictment, and was then peremptorily challenged by him, so disqualified that he should not be again put upon the defendant upon a subsequent trial for the same offense, either for the reason (1) that the defendant is thereby denied his legal right of 20 peremptory challenges; or for the reason (2) that putting the same jurors…

<p>Indictment for murder. Before Judge George. Irwin superior court. April 33, 1916.</p>

<p>Lien foreclosure. Before Judge Mathews. Crawford superior court. November 20, 1915.</p>

<p>1. Where a ground of a motion for a new trial, complaining of the ad- ’ mission of testimony, is not certified to be true, but it is certified as true when all the facts stated in that ground are “taken in connection with all of the other testimony of the witness as set out in the brief,” it will not be considered by this court; as a ground of a motion for a new trial must be complete within itself, and this court will not undertake to go through the record to ascertain what other evidence must be taken in connection with that set out in the ground of the motion, in order that the court may ascertain whether the evidence objected to should have been admitted or excluded.</p> <p>2. There is no evidence in the record authorizing the charge upon the subject of the plaintiff’s being forcibly ejected from the train upon which she was a passenger.</p> <p>3. While not entirely accurate, the charge upon the subject of nominal damages was substantially correct.</p> <p>4. The portions of the charge excepted to in the motion for a new trial which are not dealt with in the foregoing are not erroneous for any of the reasons assigned.</p>

<p>Mortgage foreclosure. Before Judge Patterson. Cobb superior court. September 25, 1915.</p>

<p>Case; from Whitfield superior court.</p>

<p>Where a number of fi. fas. were levied upon certain property, to which claims were filed, and one of the claim eases was tried under an agreement between counsel that “all of the claims are to abide the decisions that may be rendered in the case” which was tried, and where the court directed a verdict for the plaintiff in fl. fa. on the trial of the case, and it was taken to the Court of Appeals by bill of exceptions, without payment of full costs, and without a supersedeas bond and order, it was error for the court to grant a temporary injunction preventing the plaintiff in fl. fa. and the levying constable from selling the property levied on pending the determination of the claim case in the Court of Appeals.</p>

<p>1. The general rule is that where a fiver is the boundary between two States, if the original property is in neither, and there be no convention respecting it, each State holds to the middle of the stream. The Beaufort Convention of 1787 settled the boundary line between the States of South Carolina and Georgia, which, according to that convention, is the most northern branch or stream of the river Savannah from the sea to the confluence of the Seneca and Túgalo rivers, etc., reserving all islands in the river to Georgia. That part of the Savannah river which is broken by islands, located between an island and the Georgia mainland, is within the jurisdiction and sovereignty of the State of Georgia, and a dain constructed across the river from an island to the Georgia shore is subject to taxation in Georgia.</p> <p>2. On an appeal to arbitration from an assessment of value placed on unreturned property by the • comptroller-general, tbe arbitrators can not include property in their award which was not embraced in the comptroller’s assessment.</p>

<p>Petition for mandamus. Before Judge Hardeman. Toombs superior court. February 5, 1916.</p>

<p>1. Under the evidence in tlie case the crime of manslaughter was not involved; and the court did not err, after having instructed the jury upon the subject of manslaughter, in withdrawing from their consideration the portions of his charge relative to a homicide of that degree.</p> <p>2. The evidence authorized the verdict.</p>

<p>1. There are no reversible errors of law, either in the charge of the court, the refusals to charge, or in any other of the rulings of which complaint is made. Two motions for mistrial were made during the progress of the case, on the ground of unfair and inflammatory argument for the prosecution. In one instance the-record is not clear and definite as to what was said. Counsel for the accused, as shown by the recitals in his motion, did not insist upon the accuracy of his complaint, and the court plainly disagreed as to what actually occurred. In the other instance the court declined to approve the ground.</p> <p>2. The verdict was amply supported by the evidence and was approved by the trial judge. There was no error in overruling the motion for a new trial.</p>

Indictment for murder. Before Judge Kent. Laurens supe-, rior court. May 29, 1916. Albert Franklin was indicted for the murder of G. S. Sowells. Upon the trial the jury returned a verdict of guilty, with a recommendation.

<p>A testator by item seven of his will bequeathed to his wife a certain sum of money to be held in trust for.her by a named trustee and his successors, for and during her life, the interest upon the same to be paid to her during her life, and at her death the money was to go to his two daughters named, to be held in trust for them during their lives, and the survivor, of them, and after their death to their children; the interest upon the fund was to be paid to the two daughters quarterly during their lives, and after their death to the grandchildren, “share and share alike, per capita, until the youngest of all my grandchildren born and hereafter to be born shall arrive at the age of twenty-five, at which time said fund shall then be divided equally among said grandchildren per capita.” By another item the residue of the testator’s estate was bequeathed and devised “to my said grandchildren, to be held in trust for them by said trustee, and the interest upon same to be paid as set forth in item [containing above bequest], and the division of said fund to be made just as expressed in said item, . . the interest upon said fund to be paid out quarterly.” By a codicil the testator declared: “I also amend said item seven to be that all of said grandchildren shall, upon my death, share and inherit equally, during the lives of their mothers, the respective portions of my estate given to them in item seven of said will, and such’ enjoyment is distinctly understood is not to be postponed until the death of their respective mothers, but such grandchildren are to-take equally with their mothers during the lives of their said mothers.” Held, that, construing the items of the will and codicil together, the intention of the testator was that, after the death of his wife, the income from the money bequeathed should be paid one half to one daughter and her children, and the other half to the other daughter and her children, the children of each mother to share equally with her; and at the death of the mothers each one’s share was to go to their respective children. Each mother has an equal share with her children until her death, after which her children take her share in the estate bequeathed.</p>

<p>Mortgage foreclosure. Before Judge Walker. Warren superior court. January 12, 1916.</p>

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

Action for damages. Before Judge Jones. Rabun superior court. August 24, 1915.

<p>Temporary alimony. Before Judge Brand. Barrow superior court. January 22, 1916.</p>

<p>1. Accommodation indorsers — being mere sureties — on a note in which there is a waiver of homestead, and in which there is concealed usury, of which fact the indorsers are ignorant at the time of indorsing, are, in consequence of their increased risk, discharged from liability on the note; but if they know of the usury, although it does not appear on the face of the note, they do not escape all liability, but may be relieved of usury upon a proper plea. Nevertheless it was inapt for the court to instruct the jury, in charging upon the theory that the sureties knew of the existence of the usury, that they would be “beyond the protection of the law to any degree whatever.”</p> <p>2. The court erred in charging the jury as follows: “The basis of the defense in this case is ignorance during any part of this transaction; because if the indorser becomes aware of the usury in the contract, then his relation to the matter must be one of repudiation. It must be one of denial. He must have nothing further to do with that contract. If he accepts it he is bound by it — bound from the beginning upon the whole contract.” This language was open to the construction by the jury that if the indorsers learned of the existence of the usury in the note subsequently to the execution of the same, they would be bound, unless they took steps to repudiate it and to disaffirm their liability ■on it.</p> <p>3. Where a promissory note contains a recital of a deposit of collateral security to a certain amount to secure the payment of that note and any other indebtedness of the principal to the payee which exists or may afterwards be contracted, sureties upon the note are not discharged from liability on account of the fact that the collateral is not actually deposited by the principal at the time of the execution of the note, if subsequently the collateral contemplated be deposited in accordance with the stipulation in the note and remain with the pledgee.</p> <p>4. The charge of the court as to the form of the jury’s verdict in this case was insufficient, in that it covered the forms for only two possible verdicts, whereas other verdicts than those covered by these two forms might have been rendered.</p>

<p>Under the evidence in the case, it was error for the court to direct a verdict in favor of the defendant.</p>

<p>Action for damages. Before Judge Gilbert. Talbot superior court. August 25, 1915.</p>

<p>Petition for injunction. Before Judge Cox. Grady superior court. March 6, 1916.</p>

<p>When an application for temporary alimony, based on a pending libel for divorce, was heard anterior to the second verdict in the divorce case, and judgment was reserved, such judgment is not void though written out and filed the next day'after the last verdict in the divorce case was rendered. It is incompetent, on an issue formed on an illegality to an execution issued on such judgment, to collaterally impeach it by parol proof that another and different judgment was rendered when the alimony case was heard.</p>

Petition for injunction. Before Judge Thomas. Berrien superior court. January 33, 1916.

<p>Temporary alimony. Before Judge Graham. Montgomery superior court. February 10, 1916.</p>

Petition for injunction. Before Judge Summerall. Ware superior court. January 8, 1916. The City of Waycross and the tax-collector of Ware County filed an .equitable petition for injunction and receiver, against the Trustees of the Young Men’s Christian Association and others. At the interlocutory hearing, the judge revoked the restraining order, discharged the temporary receiver, and held that the property in dispute was not subject to taxation, under the constitution.

<p>1. An assignment of error in a bill of exceptions from the municipal court of Atlanta to the Court of Appeals, on the direction of a verdict, as not being authorized by the evidence, is insufficient to bring into question the legal power of a judge of the municipal court of Atlanta to direct a verdict.</p> <p>2. Under the act creating the municipal court of Atlanta (Acts 1913, p. 145) the judge of the DeKalb county section is without power to grant a nonsuit or direct a verdict; but in proper cases in the Fulton county section a judge may grant a nonsuit or direct a verdict.</p> <p>(a) The foregoing ruling is based on the act creating the court, and not on the amendment of 1916 (Acts 1916, p. 199), which authorizes the judges of the municipal court of Atlanta to grant nonsuits and direct verdicts in the same manner as is exercised by judges of the superior courts.</p> <p>3. The act creating the municipal court of Atlanta, in so far as it authorizes the direction of a verdict in cases where there is no conflict of evidence, and that introduced, with all reasonable deductions or inferences therefrom, demands a particular verdict, is not repugnant to the constitution' of this State, as impairing the right of trial by jury.</p> <p>4. Where a certified question of law does not propound a distinct issue of law, but in effect calls for a decision of the whole case, this court need not, and in this case does not, answer it.</p>

<p>The provision in the act of 1913, establishing the municipal court of Macon, that final judgments rendered in that court, where the subject-matter involved is over twenty-five dollars but does not exceed one hundred dollars, are reviewable by writ of error to the superior court of Bibb county, does not offend art. 6, see. 2, par. 9, of the constitution, defining the jurisdiction of the Court of Appeals.</p>

<p>Certified questions; from Court of Appeals (Case No. 6573)i</p>

<p>Petition for injunction. Before Judge Sheppard. Evans superior court. June 19, 1916.</p>

<p>Indictment for murder. Before Judge Gilbert. Spalding superior court. April 21, 1916.</p>

<p>Indictment for murder. Before Judge Charlton. Chatham superior court. February 2, 1916.</p>

<p>Complaint for land. Before Judge Mathews. Bibb superior court. December 10, 1915.</p>

<p>1. The breach of an injunction regularly issued and served is a contempt of court; and in a proceeding against a party for such contempt the court will not look into the merits of the cause in which the injunction issued. Accordingly it was not error to exclude evidence tending to show that the order granting an injunction may have been erroneous.</p> <p>2. The evidence was sufficient to show a violation of the court’s order.</p>

<p>Petition for injunction. Before Judge Kent. Houston superior court. March lé, 1916.</p>

<p>Eule against constable. Before Judge Meadow. EranHin superior court. October 8, 1915.</p>

<p>Action for damages. Before Judge Jones. Dawson superior court. August 3, 1915.</p> <p>James Grant sued H. C. Moss and others to recover damages for malicious use of legal process. In substance the plaintiff alleged that he was a renter on the farm of Moss during the year 1913, and had made a rent contract for the same premises for the year 1914. The defendant “got mad at” the plaintiff, and entered into a conspiracy with Malinda Moss, his wife, to dispossess him. In January, 1914, the wife swore out a dispossessory warrant, and had the sheriff “to put all of his household goods out in the road, and out of the house,” and “the said sheriff did, on the 10th day of January, 1914, dispossess your petitioner,” etc. “In consequence of the wrongful acts of said Moss and his wife, petitioner was compelled to go and hunt him another home to live in, after he had done a lot of work on the home that he was expecting to live in;” and “in consequence of the wrongful acts of said Moss and his wife, petitioner was put to a lot of inconvenience and labor to find another home and farm for the year 1914.” The plaintiff alleged that by reason of the wrongful acts aforesaid he was damaged in the sum of $500, detailing items of damage. He says that said acts were “wrongful and wicked;” also that said acts were “wilful and wicked and was known to said Moss at’ the time, and without any authority of law.” It does not appear that the plaintiff filed any counter-affidavit or made any defense to the dispossessory warrant.</p> <p>To the petition the defendants demurred on the grounds that “there is no allegation that the suing out and prosecuting of the said dispossessory warrant was without probable cause;” and that the petition does not allege that the case of Malinda Moss “has terminated favorably to the plaintiff.” The court sustained the demurrer and dismissed the petition. The plaintiff excepted.</p>

<p>Action for damages. Before Judge Patterson. Cobb superior court. July 22, 1915.</p>

<p>Consolidation of cases. Before Judge Fite. Whitfield superior court. October 19, 1915.</p>

<p>Motion to reinstate case. Before Judge Wright. Walker superior court. December 1, 1915.</p>

<p>- Action upon fire-insurance policy. Before Judge Freeman. Carroll superior court. October 22, 1915.</p>

<p>Complaint. Before Judge Searcy. Butts superior court. August 28, 1915.</p>

<p>Where one executes a deed to secure a debt .and in the conveyance creates a power of sale in the grantee, and the latter subsequently transfers the evidence of debt in the form of certain promissory notes and transfers the security deed .by endorsing thereon the following words: “Eor value received I hereby transfer the within mortgage deed to J. L. Kennedy,” but does not execute any further conveyance of the title to the transferee, the latter is not vested by such a transfer with the legal title to the land and can not exercise the power of sale. Where he attempts to exercise any such power, equity will enjoin him from. so doing, upon the petition of the original owner, the grantor in the' security- deed.</p>

<p>Money rule. Before Judge Park. Morgan superior court. September 8, 1915.</p>

<p>Complaint. Before Judge Gilbert. Harris superior court. December 30, 1915.</p>

<p>The 19th section of the act establishing the municipal court of Atlanta (Acts 1913, p. 145), empowering the judges of that court to promulgate rules of procedure and practice designed to facilitate the business of that court, does not authorize the promulgation of a rule that the pauper affidavit, permitted by section 44 of the act as a substitute for the payment of advance costs, shall not be accepted unless 'Subscribed before the clerk or a deputy clerk of that court.</p>

<p>1 So much of Penal Code § 146 as makes it a felony to break and enter a “storehouse, or other place of business of another, where valuable goods, wares, produce, or any other article of value are contained or stored,” with intent to commit a larceny, is in conflict with, and prohibits the application of, Penal Code § 179, in so far as it purports to make it a misdemeanor to break and enter a house of the character above mentioned, with intent to steal, where the offender, being detected, is prevented from carrying the intent to steal into effect. There is no other conflict between the two code sections.</p> <p>2. In Penal Code §§ 177 and 178 separate offenses are defined, and neither of these sections conflicts with sections 146 and 179.</p>

<p>Indictment for murder. Before Judge Kent. Laurens superior court. May 29, 1916.</p>

<p>Indictment for rape.' Before Judge Hill. Eulton superior court. July 22, 1916.</p> <p>Boyce Smith was tried for tbe offense of rape. The female upon whom the alleged crime was perpetrated was a child ten years old, Evelyn Denson. She was sworn as a witness for the State, and testified, in substance: She had known the defendant for a long time. She and two other little girls went down to a ditch described in her testimony, to get some switches to play with, and the prisoner came running down there. He was not seen until be went down to the ditch. When he came down the other little girls, companions of the witness, went home. The defendant proposed sexual intercourse. He then threw witness down! After he threw her down, he threatened to kill her. This was just back of an empty house where no one lived. No one was in sight at the time. The ditch was deep enough to hide in. When he left her there was on her dress a little blood that came from her privates. When he threw her down he hurt her in her privates, and he laid himself on her. He unbuttoned his pants in front; and then- (witness added): “He didn’t do nothing with his privates. He did not take his privates out. He did not take any of his person out of his breeches when he unbuttoned them. After he threw me down in the ditch, and before that blood got on my dress, he scratched me with his hand. After he unbuttoned his breeches he didn’t do nothing to me. This happened just one time. He never took anything out of his breeches here. After he threw me down I was lying down in the ditch. When I was down and he was lying down he hurt me some way. He hurt me with his hand. He did not hurt me with anything else. He did not take his thing out of his breeches. He wanted me to lay down, and I didn’t do it. He caught hold of my arm to throw me down. That was after he spoke to me. He never did that to me what I told the jury he said. After we was down he didn’t try to do nothing to me. After he threw me down he didn’t do nothing to my clothes. He didn’t pull my clothes open. He did not put anything in my privates.' He scratched me .down here (indicating). He never put anything in me. . . It is a fact' my mother told me to tell this on Boyce Smith. I told in police court when I was there that my mother told me to tell the judge that Boyce Smith told me he was going to kill me. My mother told me that. Boyce never did tell me that. Boyce Smith talked to me when we lived down on the corner. He never talked to me down in that ditch there. The ditch I am talking about runs along back of Ethel Street. I was in the ditch back of that house. There is about four or five houses there. . . He throwed me clown and crawled over me. He did not put his knees in the mud there; he put them on me; he put his knees over me. He put his knees right down there; his clothes never touched the ground, no part of them. . . The little girls stayed there just a few minutes after he come. I had on a white dress and petticoat that day, and I had drawers on too. There was no hlood on my drawers. My drawers were under my petticoat and dress. He opened my drawers on the side here. I never hollered or screamed. I just went on playing after that, and I played right along till my mother called me to go to the store; and then I went home, and them two little girls went home with me. They went on to their home and they went back with me to my home. They went with me from the ditch to my home together. My mother called me and told me she wanted me to go to the store. I never told her anything about Boyce at that time. Then my mother asked me questions. She asked me a whole lot of questions, and I said yes to all she asked me. I never told her anything I cláimed Boyce did to me. I just answered her questions. I did not go to the store; she went herself.' She carried me over to Mrs. Moore’s. I played right along around there. I have never been sick from that. I know Boyce’s sister. I seen her the day this happened, and she asked me what Boyce had done to me, and I told her he hadn’t done anything to me. . . This took place in the morning; it was after breakfast; it was 12 o’clock. I don’t know what time it was.”</p> <p>Dr. Paul Stegall, a witness sworn for the State, testified that he made an examination of the girl, Evelyn Denson, about the first of June. The crime was alleged to have been committed on the first day of June. He was called to her home, and examined her private parts. He found a slight bruise about the size of a quarter in her left groin, about an inch or inch and a half to the left of the labia majora (the outer lip of the vulva). This was slightly irritated; the labia minora (the inner lip) was a little more irritated; the walls of the vagina more irritated. The hymen was very much irritated, showing that it had recently been ruptured, and the edges were exuding semen. He would not say he found evidence of male semen. That would take a microscopic examination, which he made, but it was not a very thorough examination. There was no evidence of spermatozoa. He tore off a piece of her dress, took it to his office, and examined it that night. The matter which he examined had dried. He could not say that it was semen. There was no spermatozoa in the specimen he examined. He could not say what ruptured the hymen and irritated the vagina in this instance. The rupture could not have been but a few hours previous. The cause of the irritation and the rupture was the passing of something into the vagina; it could have been done by a man’s penis or a person’s finger. Something had passed into the vagina to cause the rupture.</p> <p>Carrie M. Denson, the mother of the girl, testified, identifying the clothes the girl wore, and stating that the spot was not on them when she left the house, which was about 11 o’clock. When the girl came home she said nothing about the occurrence until witness asked her what was the matter. She looked scared and trembling. She told witness that the accused hurt her. This was about 12 o’clock. Witness made an examination of the girl’s private parts, and found some blood still coming from them. The girl told her that the defendant threw her down and hurt her some way. That was about all she told her. She did not complain of having any pain. She had never been to school. Witness discovered there was something the matter with her the moment she entered the house. This aroused suspicion, and witness questioned the child. The other little girls came hack with her. Witness further described the surroundings — the ditch and other houses near. Her feelings towards the defendant and his family were kindly.</p> <p>Dr. Battey, a practicing physician, introduced by the defendant, testified: “You could not identify human semen with the naked eye after it had been on a dress for four or five hours; you could with the aid of a microscope. • I don’t think such identification could be made two or three months later. If a little child ten years of age was assaulted and the vagina entered and hymen lacerated, and vagina irritated, and the labia minora and majora badly irritated, she would suffer so much when the assault was made that I think she would scream and make an outcry. I think a child in that condition would be sufficiently hurt to prevent her from playing. The nervous shock would be very great, especially if she was not a party to it; and also, if she had the condition you have described, she would not he able to play about.” Other witnesses for the defendant testified that there was no sign of any struggle in the ditch. There was testimony of the good character of the accused. On the day when the crime was alleged to have been committed witnesses saw the girl in the afternoon, and she was playing around. The defendant in his statement denied that he had been at the place where the crime was said to have been committed, and denied that he had done anything to the girl or had assaulted her in any way.</p> <p>The jury returned a verdict of guilty, with a recommendation.</p>

<p>Indictment for murder. Before Judge Summerall. Coffee superior court. April 15, 1916.</p>

<p>The evidence was insufficient to show that the plaintiff’s injury was attributable to the running of the cars of the railroad company, or to the act of any person in the service of the company, as alleged in the petition.</p>

Temporary alimony. Before Judge Walker. Taliaferro superior court. January 12, 1916.

Petition for injunction. Before Judge Jones. White superior court. April 15, 1916. M. L. Vandiver was tbe owner and in possession of land lot No. 2 in tbe sixth district of White county, except thirty acres which he had theretofore conveyed to Jonathan Allison.

<p>Complaint. Before Judge Wright. Walker superior court. August 19, 1915.</p>

Complaint. Before Judge Searcy. Butts superior court. August 19, Í915. Mrs. Ella Wilson brought suit upon a promissory note against E. A. Fincher, the maker thereof. The plaintiff and defendant were sister and brother, and heirs of J.' L. Fincher, deceased. The other heirs were his widow, Mrs. Sarah Fincher, and J. T. and A. C. Fincher.

<p>Action upon life-insurance policy. Before Judge George. Irwin superior court. October 35, 1915.</p>

<p>Petition for injunction; from Wayne. Motion to dismiss.</p>

<p>Affidavit of illegality of execution. Before Judge Pendleton. Fulton superior court. September 17, 1915.</p>

<p>Petition for injunction and receiver. Before Judge Highsmith. Jeff Davis superior court. December 38, 1915.</p>

Injunction. Before Judge Sheppard. Tattnall superior court. February 18, 1916. In October, 1910, W. IT. Rogers sold to J. C. Deal certain land, and executed to him a bond conditioned to make good and sufficient warranty title to the land, free from all incumbrances, taking from Deal three promissory notes for the sum of $2000 each. After-wards Rogers procured three indorsers on the notes, without the knowledge of Deal, and indorsed the notes to the Glennville Bank.

<p>Questions certified by Court of Appeals (Case No. 7039).</p>

The Court of Appeals certified the following questions (in Case No. 6906): “1.

<p>1. The evidence submitted to the court was sufficient to show that the dying declarations were made in articulo mortis, and that the declarant was conscious of his condition at the time; and there was no error in submitting the declarations to the jury. Harper v. State, 129 Ga. 770 (59 S. E. 792).</p> <p>2. When considered in connection with its context, the language, “malice is implied from any deliberate act, however sudden,” employed by the judge while instructing the jury, was not calculated to confuse or mislead the jury to the prejudice of the accused.</p> <p>3. Under one phase of the evidence the law of voluntary manslaughter was involved in the case, and the judge erred in omitting to charge on that subject.</p>

<p>Equitable petition. Before Judge Mathews. Crawford superior court. November 27, 1915.</p>

<p>1. The wrongful conduct of a scrivener, who did not write a contract as instructed, will not relieve the party who directed its preparation, but who failed, through his own negligence, to read it before sending it to the other party, who in good faith accepted it and acted upon it.</p> <p>(a) If one of two innocent persons must suffer, he who puts it in the power of a third person to inflict the injury must bear the loss.</p> <p>2. “When the defendant in a civil case- introduces no evidence, he is entitled to the opening and conclusion of the argument.”</p> <p>3. There was no merit in any other assignment of error.</p>

<p>Action for damages. Before Judge Meadow. Hart superior court. September 22, 1915.</p>

<p>Petition for injunction. Before Judge Meadow. Hart superior court. - January 31, 1916.</p>

<p>1. In a proceeding under the Civil Code, §§ 807 et seq., to condemn a private way over the lands of another person, in order to entitle the applicant to relief it must appear that the way sought by him is absolutely indispensable as a means of reaching his property.</p> <p>2. Even wflere the necessity for such way exists, the applicant is not entitled to choose his route, where the landowner has tendered him a way reasonably convenient to both parties.</p>

<p>Action upon administrator’s bond. Before Judge Patterson. Milton superior court. August 16, 1915.</p>

<p>Complaint. Before Judge Patterson. Pickens superior court. September 28, 1915.</p>

<p>Trover. Before Judge Patterson. Cobb superior court. September 25, 1915.</p>

<p>Action for damages. Before Judge Thomas. Cobb superior court. November 16, 1915.</p> <p>Addie Jackson brought suit against the Western and Atlantic Railroad Company and the Louisville and Nashville Railroad Company, to recover damages for alleged tortious death of her husband. She alleged, in substance, as follows: Both defendants used the same railroad-track and roadway at the place where her husband was killed, the Louisville and Nashville Railroad Company using the same for its trains by agreement with its eodefendant. Her husband was employed as a track-hand on the Western and Atlantic Railroad Company; and between 12 and 1 o’clock one night he boarded a southbound train of the Louisville and Nashville Railroad Company at or near Kennesaw, for the purpose of being carried to the section-house of the section upon which he worked, which was about a mile south of Kennesaw. He was on the train by permission of the defendants’ agents in charge of it. When the train reached a point a mile and a quarter south of Kennesaw, where a stream of water flowed under the track through a culvert, the track gave way, and the train was plunged into a washout where the culvert had been, and the plaintiff’s husband and others upon the train were killed. The wrecking of the train was caused by the culvert not being sufficiently strongly and substantially built to withstand the undermining influence of the water collecting in the time of heavy rain, and the culvert was not large enough to carry off the water. There had been a heavy rainfall a short time before the wreck; and the opening under the track being too small to let the water go off promptly, the road-bed caused it to collect and pond until the foundations of the track became so weakened as to be unable to withstand the force of the water and the heavy weight of the train. The plaintiff was unable to locate the position of her husband on the train at the time of the wreck, because all of its crew were killed, and the conductor did not know his position on the train at the time; but she alleged that the position of her husband on the train was not the proximate cause of bis death; that the defendants were negligent in operating trains over the track while the culvert was not large enough to quickly carry off water falling in times of heavy rain; and that because of the acts of negligence alleged, and of the failure of the defendants to employ a track-walker to warn the crew of danger, she is' entitled to recover exemplary and punitive damages. By amendment it was alleged, that the facts that the railroad had impeded the natural flow of the water and caused it to back up and pond in times of heavy rain, and that a heavy rain had fallen, were sufficient to put the defendants ,on inquiry and notice of what might be expected and what did actually happen; and that about twenty years ago, at a place only a few miles from the place of the wreck, where the natural conditions were similar and the natural flow of the water had been impeded and forced to go through a small culvert like the one where the wreck happened, there was a similar washout and wreck with a similar loss of life, and knowledge of this fact should have served to have made the defendants careful and diligent to anticipate the conditions, so as to prevent the wrecking of the train on which her husband was riding when he lost his life. Certain grounds of special demurrer were sustained, and exceptions pendente lite were taken.</p> <p>On the trial the plaintiff introduced testimony that she was the wife of the deceased, and that he was killed while riding on a freight-train which had been wrecked by running into a washout in the road-bed at the place described in the petition. A bookkeeper residing in the vicinity-testified that he knew the deceased to have worked as a section-hand on the Western and Atlantic Eailroad, from having received of him a check given by the Western and Atlantic Eailroad Company for his services as a track-hand. No eye-witness testified concerning the wreck of the train, or the manner in which the plaintiff’s husband was killed; but it was shown that his mangled body was found in the wreck of the ear next to the engine. The mortality tables, and evidence of the decedent’s earning capacity, were introduced. The court granted a nonsuit, and the plaintiff excepted.</p>

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

<p>Exceptions to auditor’s report. Before Judge Eite. Gordon superior court. December 1, 1915.</p>

<p>Action for damages. Before Judge Fite. Whitfield superior court. January 3, 1916.</p>

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

<p>Motion for new trial. Before Judge Littlejohn. Stewart superior court. January 20, 1916.</p>

<p>Divorce and alimony. Before Judge Thomas. Tift superior court. August 21, 1915.</p>

<p>Claim. Before Judge Thomas. Colquitt superior court. October 17, 1915.</p>

<p>Petition for injunction. Before Judge Thomas. Berrien superior court. January 29, 1916.</p>

Equitable petition. Before Judge Graham. Pulaski superior court. September 16, 1915. J. T. Hill and J. W. Dennard as administrators of J. J. Dennard, deceased, presented to the judge of the superior court a motion or petition praying for an order or decree placing them in possession of certain land, and that the equity of the defendant in the land be forever barred. An order nisi was granted.

<p>Action for damages. Before Judge Kent. Laurens superior court. October 37, 1915.</p>

Petition for injunction. Before Judge Summerall. Clinch superior court. April 15, 1916. Moore & Company and Daugherty, Allen & Company are each engaged in the business of extracting gum from pine trees and manufacturing it into turpentine products.

<p>Petition for injunction. Before Judge Hardeman. Emanuel superior court. February 23, 1916.</p>

<p>Questions certified by Court of Appeals (Case No. 6252).</p>

<p>Questions certified by Court of Appeals (Case No. 6925).</p>

<p>Indictment for murder. Before Judge Fite. Bartow superior court. June 6, 1916.</p>

<p>Indictment for murder: Before Judge Mathews. Bibb superior court. July 4, 1916.</p>

<p>1. After defining express and implied malice and instructing the jury that malice is an unlawful intention to kill without justification or mitigation, the further instruction that “a person may form the intention to kill, do it instantly, and regret it as soon as it is done,” was not erroneous as not being adjusted to the facts of the case.</p> <p>2. Taken in connection with its context, the statement in the court’s instruction that “malice is implied from any deliberate act, however sudden,” will not require a new trial.</p> <p>3. An inaccurate instruction not tending to prejudice the accused, and authorizing an acquittal of murder under circumstances wherein the law does not excuse a homicide, will not require a new trial.</p> <p>4. There was no abuse of discretion in refusing a new trial because of alleged newly discovered evidence.</p>

<p>Indictment for murder. Before Judge Worrill. Terrell superior court. August 15, 1916.</p>

<p>Claim. Before Judge Park. Taliaferro supérior court. October 4, 1915.</p>

<p>Equitable petition. Before Judge Walker. Wilkes superior court. October 21, 1915.</p>

<p>Petition for injunction. Before Judge Walker. Wilkes superior court. January 21, 1916.</p>

Action for damages. Before Judge Brand. Gwinnett superior court. August 26, 1915. T. M. Williams brought suit against the railway company for damages from personal injuries. -The ease was tried, and the jury rendered a verdict for the plaintiff for $750. . The railway company' made a motion for a new trial, which was overruled, and it excepted.

<p>Action for accounting, etc. Before Judge Brand. Banks superior court. January 12, 1916.</p>

Action for damages. Before Judge Patterson. Cherokee 'superior court. September 25, 1915. Stafford brought suit against the Louisville and Nashville Bail-road Company, for damages on account of injuries to Ms person and to his automobile, caused by a collision at a public street crossing in Canton, Georgia. The petition alleged that the crossing was at street grade in a very populous section of that city, and was used constantly by pedestrians as well as drivers of vehicles.

<p>■Complaint. Before Judge Fite. Gordon superior court. February term, 1915.</p>

<p>Ejectment. Before Judge Searcy. Eayette superior court. September 4, 1915.</p>

Action for damages. Before Judge George. Ben Hill superior court. October 11, 1915. On April 20, 1914, a petition was filed in an action against the receivers of a railroad company.

Validation of county bonds. Before Judge Charlton. Chatham superior court. January 15, 1916. On October 2, 1915, a petition was filed in the superior court by the solicitor-general, representing the State under the act of 1907 (Acts 1907, p. 82), for the purpose of validating certain bonds of the County of Chatham, voted upon in an election held on September 21, 1915.

<p>Indictment for murder. Before Judge Bartlett. Paulding superior court. June 3, 1916.</p> <p>Sam Hicks was tried under an indictment charging him with the offense of murder, it being alleged that he feloniously shot and killed Ed Pennell. Two witnesses testified that they saw the shooting; one of them was introduced by the State, and the other by the defendant. The witness introduced by the State was a nephew of the decedent, and was a boy about 13 years old. He testified, that he was present when Ed Pennell was killed; that it was about 5 o’clock in the afternoon; that the defendant shot him with a pistol; that witness was about fifty yards away from them when the shot was fired; that the deceased, the accused, and George Prance were together and went to the edge of a field; that the deceased was going home, and the accused was going from his home; that when they got to the edge of the field the witness. heard a gun fire; that he heard the deceased call for him, and he asked what was wanting, but no reply was made. He then went and jumped on a stump, and just as he did so he saw the defendant shoot. The expression used by the witness was, “I saw Sam [Hicks] throw the gun on Hncle Ed [Pennell] and shoot him down. I seen him fall, and I thought he was going to shoot again. That scared me and I ran towards the house, but I was looking back at him. After this, Sam Hicks ran back towards the branch, and then towards Hncle Ed, and then back, and then right up the hill towards his home. He ran as fast as he could.” The same witness gave other testimony locating himself at a period of time just before the first shot was fired and between the firing of the first shot and the second shot, and his position at the time of the firing of the fatal shot and a little while afterwards. The testimony of the other eye-witness to the homicide is, in substance, that the accused and the decedent were both drinking heavily; that the accused fired off his pistol once, and the decedent told him to “pop it again;” that Hicks then fired a second time, and the decedent said, •‘Top it again.” Hicks was drunk and apparently firing recklessly. Other testimony was introduced by the State and by the defendant. The jury returned a verdict of guilty, with a recommendation of mercy. The defendant made a motion for a new trial, which was overruled.</p>

<p>Mandamus. Before Judge Fite. Murray superior court. October 14, 1916.'</p>

<p>Rule for contempt. Before Judge Fite. Murray superior court. October 26, 1916.</p>

<p>Complaint. Before Judge Mathews. Bibb superior court. December 7, 1915.</p>

<p>Question certified by Court of Appeals (Case No. 6990).</p>

Complaint. Before Judge Walker. Warren superior court. October 11, 1915. W. E. Kitchens brought suit against Mrs. Fannie Pool, executrix of the estate of Mrs. M. 0. Pate, upon a quantum meruit for board and for care and attention rendered to the deceased. The defendant admitted that Mrs. Pate, the deceased, lived at the home of the plaintiff, but denied that she boarded with him, or that she was indebted to him in any amount whatever. .

<p>Complaint. Before Judge Hammond. Forsyth superior court. October 29, 1915. ■ .</p>

<p>1. Upon the loss of any original pleading or official paper, a copy may be established instanter on motion, and the court may suspend the trial for this purpose. Where a motion is made to establish a lost paper and the opposite party files a written traverse, denying the existence of the alleged lost original, it is error to refuse that party the right to offer competent evidence in support of his traverse.</p> <p>2. A distress warrant, based upon a rent note payable to the order of the landlord, and indorsed by him in blank, may be sued out by the holder of the note in his own name, by virtue of the provisions of the Civil Code (1910), §§ 3345, 3346, 3347.</p>

<p>1. Where a promissory note is given in settlement oí an open account, without an express agreement that the note shall extinguish the preexisting debt, it is a condition precedent to a final judgment upon the account that the note be surrendered to the maker, or accounted for by showing that it is not in any event enforceable against him.</p> <p>2. Since it was the legal right of the defendant to have the condition precedent above stated complied with, if the account had been closed by note, the court committed error in not submitting to the jury the disputed issue of fact as to whether or not the account or any portion thereof had been closed by note.</p>

<p>1. Grounds of a motion for a now trial, based upon the admission or exclusion of evidence, which embrace utterly superfluous and unnecessary matter, such as colloquies between counsel on both sides, or between counsel and the court, recitals of irrelevant facts, and other like things, to such an extent as to bury the question sought to be raised in a mass of needless phraseology, and thus render it difficult, if not impracticable, for this court to ascertain what was the ruling or other conduct of the court complained of, will not be considered. Applying this ruling to the grounds of the motion in this ease relating to the admissibility of evidence, none of them are made in such a manner as to present a question for determination by this court.</p> <p>2. Where a dispossessory warrant is sworn out against a tenant holding over, to recover possession of land and doubje rent under section 5385 et seq. of the Civil Code of 1910, it is error for the court on the trial to charge the jury to look to the evidence and see what the tenant had possession of; whether he merely had possession of a house and barn, or a number of acres of land, and, if a number of acres, how many acres; and see for how long he held possession of the property, and what the rental value of it was for the time he did hold possession after the expiration of his contract; and whatever the jury found that rental value to be the landlord would be entitled to recover.</p> <p>3. In such case the measure of damages would be, if the evidence authorized it, an amount double the rental value for the entire premises for the time the premises were held over by the tenant beyond his term.</p>

<p>1. The plaintiff’s evidence was sufficient to withstand a motion for non-suit, and the verdict is supported by the evidence. »</p> <p>2. If a party desire a fuller instruction to the jury on the law as applied to any particular phase of the evidence, he should invite such instruction by a timely written request. A complaint of a failure to charge a principle of law in a particular form, even if such principle be pertinent, presents no question for decision, where neither is the charge brought up in the record nor is it otherwise made to appear that there was an omission to charge aqipropriately on the subject. He who alleges error . must show it by the record.</p> <p>3. Assignments of error on excerpts from a charge to the jury should specify the alleged error. Such excerpts as are criticised as not being adapted to the pleadings and evidence in this case are not open to such criticism.</p>

<p>Lien, foreclosure. Before Judge Bartlett. Douglas superior court. September 34, 1915.</p>

<p>Action for damages. Before Judge Searcy. Fayette superior court. January 15, 1916.</p>

<p>Action for damages. Before Judge Park. Jasper superior court. August 19, 1915.</p>

<p>Complaint. Before Judge Thomas. Colquitt superior court. October 14,1915.</p>

Action upon life-insurance policy. Before Judge Bell. Fulton superior court. September 23, 1915. This case was submitted to the court for trial without the intervention of a jury, upon a statement of facts agreed upon by the parties, which, omitting the immaterial parts, was as follows: The defendant was a life-insurance corporation under the laws of Georgia. The insured, .Barnett Williams, died intestate on July 18, 1913.

<p>Complaint. Before Judge Hardeman. Toombs superior court. August 28, 1915.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. October 11, 1915.</p>

<p>Complaint. Before Judge Hammond. Richmond superior court. August 7, 1915.</p>

<p>Action for damages. Before Judge Searcy. Butts superior court. January 14, 1916.</p>

<p>Appeal. Before Judge Park. Jasper superior court. December 15, 1915.</p>

<p>1. Where service of a rule nisi to foreclose a mortgage on realty was acknowledged by the mortgagors four days before the rule absolute was granted by the court, and the judgment absolute recited that the mortgagors named had “acknowledged service on this rule nisi,” such defective service did not render the judgment absolute void, but voidable.</p> <p>2. Such judgment absolute- can not be collaterally attacked by one who claims the realty under a chain of titles from a common grantor who was a purchaser at the sheriff’s sale. 3. The court did not err in directing a verdict for the plaintiff.</p>

<p>SepComplaint. Before Judge Bell. Fulton superior court, tember 25, 1915.</p>

<p>Action for damages. Before Judge Sheppard. Wheeler superior court. November 15, 1915.</p>

<p>Motion to set aside judgment. Before Judge Hill. Fulton superior court. November 6, 1915.</p>

<p>The grantor gave to three creditors security deeds differing in dates and amounts. Each of these creditors obtained judgment on his respective debt, and the land was sold under the fi. fa. based on the debt secured by the oldest deed, agreeably to the statute in such ease made and provided. In a contest over the balance of the proceeds of the sale, after . paying the fi. fa. under which the land was sold, it was not error to apply the money to the other judgments based on debts secured by the other deeds, in preference to a general judgment junior to the security deeds but older than the judgments on the debts secured by them.</p>

<p>Action on bond. Before Judge Bell. Fulton superior court. October 12, 1915.</p>

<p>The affirmative pleas failing to state a valid defense against the claim of the plaintiff for a breach of a contract, the court did not err in striking them upon demurrer. The pleas having- been stricken, a verdict for the plaintiff necessarily followed.</p>

<p>Complaint. Before Judge Smith. DeKalb superior court. September 11, 1915..</p>

<p>1. As a general rule, a carrier operating an interurban railway line is under a legal duty to furnish a passenger on its ears with a seat. If one boards such a car with the intention to become a passenger-, and refuses to pay his fare because from the crowded condition of the car he is unable to procure a seat, he can not insist on riding free while standing. If he is unwilling to accept transportatioxx unless provided with a seat, he must abandon the car if the carrier gives him a reasonable oppox-tunity to leave it in safety. If after a refusal to pay the fare because not provided with a seat, and after he has been afforded a reasonable opportunity to leave the car in safety, he refuses to leave the car, the conductor may eject him and use necessax-y force to accomplish his expulsion.</p> <p>2. In accomplishing such ejection the carrier can not use more force than is necessary; and if in axx action against the carx-ier the plaintiff ejected complains that he was “bruised” by the ejection, he must allege that the force used was unnecessary, or state the facts from which such an inference may be drawn.</p> <p>3. An interurban railway carrier can not lawfully eject a person refusing to pay fare on account of not being provided with a seat, at an improper-place or at a place where his ejection will be attended with peril or danger. An allegation that the place where the ejection occurred was “many hundred feet from a regular stopping-place” does not charge that the ejection was at an improper place, or with unnecessary force.</p>

The Court of Appeals desires instructions from the Supreme Court upon the following questions involved in this case (No. 6264): “1.

<p>In a suit by an executrix of a deceased payee on a note signed by two persons, where the plaintiff concedes the liability of one of them .to be only that of a surety, and where the principal makes no defense, such principal is not incompetent to testify, on the trial of an issue formed by the surety,’that he made an accord and satisfaction with the deceased payee. As the principal has filed no defense, and judgment against him is inevitable, and as he will not be affected by the discharge of the surety, his testimony in behalf of the surety is not in his own favor so as to disqualify him as a witness under the evidence act of 1889 (Civil Code 1910, § 5858).</p>

<p>Action upon bond. Before Judge Searcy. Butts superior court. September 13, 1915.</p> <p>C. A. Pittman, as administrator de -bonis non upon the estate of Mrs. Mattie Lee Wall, brought suit against Arthur H. Wall as principal, and the United States Fidelity and Guaranty Company as surety, on an administrator’s bond, and- alleged in substance as follows: Arthur H. Wall was appointed as administrator upon the estate of Mrs. Mattie Lee Wall, deceased, and executed bond as such in November, 1912. Application was made by Wall to sell certain lands belonging to the estate of the intestate, and leave was duly granted to sell the lands, which were advertised for the first Tuesday in .January, 1913. On the last-named date the lands, consisting of 154 acres, were duly exposed to sale by Wall as administrator, and were bid off by R. C. Thomas, he being the highest bidder, for $39 per acre. Wall as a'dministrator failed to collect the amount of the bid from Thomas, or to make any effort to collect it, or to offer the land for sale at the bidder’s risk. A. F. White, a bidder at the sale, bid $38 per acre for the lands, and he was and is perfectly solvent and able to have paid the sum bid for the land. Wall, administrator, obtained R. C. Thomas to bid at the sale for him, and this is why the bid was not complied with, and no effort made to have the amount of it paid. On the first Monday in September, 1913, an order was made by the court of' ordinary, declaring the letters of administration issued to Wall revoked, which resulted in his removal as administrator upon the alleged grounds of his having committed waste, etc. On the last-named date the plaintiff was duly appointed and qualified as administrator de bonis non upon the estate of Mrs. Wall. On account of the defendant’s'failure to make the money from the sale of the land, or to resell it, the plaintiff obtained an order to sell it, and, after being duly advertised, it was sold on the first Tuesday in December, 1913, and brought only $26 per acre. It was exposed for sale by the sheriff of the county as auctioneer for the plaintiff, before a large crowd, and everything was as favorable to the sale as it was possible to obtain. The estate the plaintiff represents as administrator suffered a loss and was damaged $13 per acre on' 151 acres, on. account of the negligence of the defendant, or a total loss of $2002, and the further sum of $23 costs (an itemized bill of which was set forth) paid the ordinary on the proceedings to remove the defendant as administrator, and other necessary expenses to sell the land, made necessary on account of the negligence of the defendant. On November 8, 1912, the defendant executed a bond to the ordinary of the county in the sum of $7500, for the faithful discharge of his duties as administrator in the terms of the law, with the Dnited States Fidelity and Guaranty Company, of Baltimore, Md., as security. The intestate’s estate has been damaged by the defendant, by his conduct above outlined, in the sum of $2025, for which amount the plaintiff prays judgment, with interest from the first Tuesday in January, 1913.</p> <p>By an amendment the plaintiff alleged that Wall as former administrator entered into an agreement with B. C. Thomas, whereby Thomas was to bid on the land for Wall, and that there should not be any liability on Thomas in the event that the land should he knocked off to him, but that the liability was to be on Wall. At the time Wall had Thomas to bid on the land he was insolvent, and has been so since; and Wall did not intend to comply with the bid, unless he was able to sell the land at private' sale for a profit. This conduct of Wall was without regard to the interest of the estate he represented, and was without any intention of complying with the bid that he had Thomas to make for him; and as administrator, through his unfaithfulness to his duty, he negligently allowed the lands to depreciate in value by his failure to sell as the law directs.</p> <p>Both defendants filed general and special demurrers. The court overruled the general demurrers, and sustained one of the special demurrers as to costs in the court of ordinary. The defendants excepted to the overruling of the general demurrer.</p>

<p>Claim. Before Judge Searcy. Monroe superior court. November 13, 1915.</p>

<p>1. If one of the parties to a contract for the sale of cotton for future delivery, apparently valid on its face, enters into the contract evidenced by the writing with no intention of delivering the actual cotton, but upon the understanding that a settlement is to be had by the contracting parties on the day appointed for delivery, based on the difference between the market price at that time and the contract price, and such . intention is known to the opposite party at the time of signing the writing, the transaction will be regarded as a wager and not an enforceable contract.</p> <p>2. The evidence authorized the verdict.</p>

<p>Complaint. Before Judge Littlejohn. Stewart superior court. December 27, 1915. ■</p>

Action for damages. Before Judge Kent. Twiggs superior court. January 11, 1916. Hightower brought suit against the Southern Railway Company for damages from a personal injury received by him. The petition alleged, among other things, as follows: The plaintiff was employed by the defendant to assist in repairing its track, which was used in intrastate and interstate commerce. The suit is brought under the employer’s liability act of Congress.

<p>Writ of error from Dooly superior court.</p>

<p>Complaint. Before Judge Highsmith. Wayne superior court. December 7, 1915.</p>

Complaint. Before Judge Pendleton. Fulton superior court. December 15, 1915.

<p>Complaint. Before Judge Bell. Fulton superior court. September 21, 1915.</p>

<p>Action for damages. Before Judge Smith. DeKalb superior court. September 10, 1915.</p>

<p>1. On the trial of a suit brought by an ordinary, for the use.of the heirs at law of á decedent, against an administrator and the sureties on his bond, such suit being based upon a judgment rendered by the ordinary, on a-citation for settlement, in favor of the heirs against the administrator, which judgment the administrator refused to pay, the sheriff having returned nulla bona as to him, it was not error to strike the paragraph of the defendants’ answer to the effect that the usees of the plaintiff were not the heirs at law of the decedent, and that the sureties were not bound by the judgment of the ordinary against the administrator.</p> <p>(а) The judgment of the ordinary adjudicated that' the usees were the heirs of the decedent, and that they were entitled to recover the amount of the judgment from the administrator.</p> <p>(б) In a suit based on such judgment the plaintiff may, if the evidence authorize it, recover the amount thereof against the administrator and the sureties.</p> <p>(c) Such judgment "can not be collaterally attacked by the sureties, or by the administrator, in an answer to the suit.</p> <p>2. There being no evidence upon which to base it, the court erred in directing a verdict for the plaintiff.</p>

<p>Illegality of execution. Before Judge Smith. DeKalb superior court. , October 14, 1915.</p>

<p>Complaint. Before Judge Hardeman. Emanuel superior court. December 13, 1915.</p>

<p>Action for damages. Before Judge Fite. Bartow superior court. October 30, 1915.</p>

<p>Complaint. Before Judge Hammond. Columbia superior court. . October SO, 1915.</p>

<p>Action for damages. Before Judge Bell. Fulton superior court. November 34, 1915.</p>

<p>Action upon fire-insurance policy. Before Judge Pendleton. Fulton superior court. December 3, 1915.</p>

<p>Action for damages. Before Judge Ellis. Fulton superior court. January 37, 1916.</p>

Action for damages. Before Judge Bell. Fulton superior court. January 1, 1916. Brad Byrd brought suit against J. B. Thompson, to-recover damages on account of personal injuries received while working for Thompson as a laborer on a building which Thompson was erecting. After-the evidence was in, the court directed a verdict for the defendant.

<p>Action, for accounting and contribution. Before Judge Cox. Calhoun superior court. January 3, 1916.</p>

<p>1. Where suit is instituted by the personal representative of a deceased person, the defendant is an incompetent witness to testify in his own behalf as to any transaction or communication with the deceased.</p> <p>2. Where a signed warranty deed containing an attestation clause in the usual form is found, after the death of the grantee, in a private safety-deposit box in a bank, in which box the grantee’s papers have been kept, delivery of the deed by the grantor will be presumed.</p> <p>3. The evidence authorized the direction of a verdict for the plaintiff.</p> <p>4. The pleadings and the briefs of counsel for the plaintiffs in error having eliminated all questions save as dealt with above, the court will not pass upon other assignments of error in the bill of exceptions.</p>

<p>Ejectment. Before Judge Eite. Murray superior court. August 13, 1915.</p>

<p>Writ of error from Floyd superior court.</p>

Indictment for murder. Before Judge Mathews. Bibb superior court. May 20, 1916. Buuyan 0. Lucas was indicted for the murder of his wife, Mrs. Ida Lucas, by shooting her with a pistol. It appeared from the evidence that they were living in a state of separation at the time of the homicide.

<p>An attorney whose contract with his client provides that he is to be paid a certain sum in all events, and a larger sum if the attorney’s client is successful, has no such intei-est in the subject-matter of the litigation as to disqualify the judge, who is a brother of the attorney, from presiding in the cause.</p>

<p>Where a daughter filed against her father a petition in which she alleged .that the father, some years previously, had given to her a certain tract of land and had promised to execute to her a deed to it, but had failed and refused to do so, and that she had entered into possession of the land, had been in continuous possession of it up to the date of the filing of the suit, and had made valuable improvements thereon upon the faith of the gift, and she prayed specific performance by the father, and that title to the land be decreed in her; and where the father acknowledged service of the petition and process, waived further service, acknowledged that all of the allegations in the petition were true, and consented that a verdict and decree be taken at the appearance term of the court: the court should not have dismissed the petition of a third person who sought to intervene and be made a party defendant, alleging that he was a purchaser for value of the premises, without notice of the claims of the plaintiff in the suit for specific performance, denying the material allegations upon which the plaintiff based her claim for specific performance, and alleging further that upon the day upon which the suit was filed he had bought the land in question from the father of the plaintiff and paid the purchase-money, without notice of the filing of the .suit, and that the suit between the daughter and the father was collusive.</p>

<p>Writ of error from Walker.</p>

<p>Equitable petition. Before Judge Bell. Pulton superior court. October 6, 1915.</p>

<p>Temporary alimony. Before Judge Bell. Fulton superior court. March 4, 1916.</p>

<p>Questions certified by Court of Appeals (Case No. 6188).</p>

<p>Petition for injunction. Before Judge Wright. Floyd superior court. June 27, 1916.</p>

<p>Where wild lands have been returned 'for taxation in the county within which they are situated, the tax-collector is without jurisdiction to issue execution for taxes thereon as unreturned wild land, and to cause such lands to be sold; and if he does so, the execution is invalid and the proceedings thereunder are void. The purchaser at such a sale gets no title, and ergo can convey none.</p>

<p>Complaint for land. Before Judge Patterson. Gilmer superior court. December 21, 1915.</p>

<p>1. Where in the description in a deed the land is bounded on one side by the right of way of a railroad company, the true boundary line between the land conveyed and the right of way of the railroad company must be taken as the boundary line, and not the line that was understood to exist at the time of the execution of the deed, if there is a variance between such two lines.</p> <p>2. Where one purchases a tract of land, and the boundaries are pointed out to liim by the vendor and a warranty deed is executed, intended to convey the land as pointed out, but in fact describing only a part of the land, the purchaser can not, as for a breach of warranty contained in the deed, recover damages from the grantor on the ground that the omitted land belonged to another.</p> <p>3. The petition was lacking in necessary averments to be good as an action for fraud and deceit.</p>

<p>Petition for injunction. Before Judge Fite. Murray superior court. March 37, 1916.</p>

<p>Petition for injunction. Before Judge Park. Jones superior court. April 18, 1916.</p>

<p>Petition for injunction. Before Judge Thomas. Thomas superior court. April 5, 1916.</p>

<p>1. The pendency of a proceeding to condemn land as a way of necessity for a tramroad, under the Civil Code (1910), § 804, is such a pending ■ proceeding as to'give the superior court of the county where the condemnation proceeding is pending jurisdiction to entertain a petition to enjoin such proceeding. • ■.</p> <p>2. The procedure for the condemnation of a right of way for a tramroad under the Civil Code (1910), §§ 804 et seq., is that prescribed in the Civil Code (1910), §§ 5206 et seq.</p> <p>3. It is not essential that the assessors appointed in a condemnation proceeding under the Civil Code (1910), §§ 5206 et seq., should be residents of the county where such proceeding is instituted.</p> <p>4. Where an application for condemnation is filed, and no steps are taken thereunder and it is abandoned, a new application may be made without reference to the abandoned application.</p>

<p>Petition for injunction. Before Judge Thomas. Berrien superior court. February 26, 1916.</p>

<p>Temporary alimony. Before Judge Graham. Montgomery superior court. May 10, 1916.</p>

<p>Equitable petition. Before Judge Summerall. Ware superior court. January 29, 1916.</p>

<p>Under the evidence and the pleadings the court did not err in granting the' interlocutory injunction.</p>

<p>Equitable petition. Before Judge Bell. Eulton superior court. October 4, 1915.</p>

<p>Ejectment. Before Judge Ellis. Eulton superior court. December 21, 1915.</p> <p>Major Curlew and Jane Moore brought ejectment against Maria Jones. Plaintiffs and defendant claimed - title through one Jack Curlew. Jack, Charlie, Major, and Jane (the last two named being plaintiffs in this case) were sister and brothers of the same mother. Jack Curlew, from whom plaintiffs seek to derive title by inheritance, intermarried in 1901 with Kate Eambro, or Kate Campbell. Kate Eambro (or Campbell) in 1891 was married to Grant Campbell. She and Grant Campbell separated. There was no evidence of divorce or of any proceeding for divorce, and Grant Campbell testified that there never was a divorce. After the separation of Grant Campbell, and Kate Campbell, the latter was formally married to Jack Curlew. Afterward Jack Curlew died, and an administrator on his estate was appointed. The administrator filed a petition in the court of ordinary, reciting that Kate Curlew, the wife of Jack Curlew, had paid off all the debts of the estate; that he had advertised as required by law, and no other debts had been presented; that he had found Kate Curlew in possession of the land throxigh her accredited agents; that the money for the expense of the administration had been .paid by Kate Curlew; and he prayed, first, that the petition be treated as a final return, and that he as administrator be directed to execute and deliver to Kate Curlew an administrator’s deed to the lands belonging to the estate of Jack Curlew, deceased, which includes the land sued for, and that letters of dismission be granted to him. Upon this petition citation rvas issued and published, and, no objection having been filed, the. prayers of the petition were granted, and it was ordered that the administrator execute to Kate CurleAV quitclaim deeds to the property, reciting this judgment as authority therefor, and that letters of dismission issue to petitioner. The administrator executed his deed to Kate Curlew under the provisions of the foregoing judgment, and she afterwards executed her deed to the defendant. The court directed a verdict in faAror of the plaintiffs for an undivided two-thirds interest in the premises sued for, and submitted to the jury the amount of the mesne profits, Avhich the jury found to be $55. The defendant moved for a new trial, which Avas granted.</p>

<p>Equitable petition. Before Judge Hardeman. Bulloch superior court. October 37, 1915.</p>

<p>Complaint for land. Before Judge Charlton. Chatham superior court. December 30, 1915.</p>

<p>Temporary alimony. Before Judge Charlton. Chatham superior court. January 8, 1916.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. October 12, 1915.</p>

<p>Writ of error from Whitfield superior court.</p>

Complaint for land. Before Judge Patterson. Milton superior court. August 18, 1915. Mrs. Julia A. Rogers filed suit against Truman Smith and Mrs. J. W. H. Hamilton, administratrix, now Mrs. Frank S. Talbert, for the recovery of lot of land number 478, and a fractional part of lot number 51, each of said lots containing forty acres, more or less.

<p>1. The court did not err in overruling the 19th ground of the demurrer, as follows: “This defendant demurs specially to the 1st, 2nd, 3rd, and 6th paragraphs of the plaintiff’s petition, because the same fails to set forth or exhibit the court proceedings and orders under which he claims to be acting and which he alleges supply his authority for bringing and prosecuting said suit.”</p> <p>2. Where a receiver of a corporation is appointed at the suit of a shareholder proceeding on his own behalf and on behalf of other stockholders, and not on behalf of creditors, such receiver can not in one suit proceed against all of those who have not paid their subscriptions.</p> <p>3. It was error not to sustain the grounds of demurrer relating to the venue of the action, and to misjoinder of parties.</p> <p>4 The foregoing rulings render it unnecessary to pass upon the overruling of the other grounds of demurrer.</p>

<p>Rule for contempt. Before Judge Charlton. Chatham superior court. April %%, 1916.</p>

<p>Equitable petition, etc. Before Judge Brand. Jackson superior court. January 14, 1916.</p> <p>The Jefferson Banking Company brought an equitable petition against the Jefferson Cotton Mills, to recover the amount of an unsecured promissory note amounting to $7,000, and alleged that the defendant was insolvent. There was a prayer for a receiver to take charge of its assets; and a receiver was appointed. The trustees of Martin Institute and the trustees of the Methodist Episcopal Church South, of Jefferson, filed their interventions, claiming that they had a first lien on all of the property of the Jefferson Cotton Mills, as well as on the income from it, superior to all other liens and debts, and should be first paid by reason of instruments executed and delivered to them (in form identical in each case, except as. to name of holder and amount), a copy of one of which is as follows:</p> <p>“Certificate of Preferred Stock in the Jefferson Cotton Mills, Jefferson, Jackson County, Georgia, Chartered A. D. 1899.</p> <p>“This is to certify that the trustees of the Martin Institute are the owners of the two hundred and sixty shares of fully paid-up preferred stock in the Jefferson Cotton Mills. This certificate is issued by the Jefferson Cotton Mills, and paid for and accepted by the trustees of the Martin Institute, upon the following expressed terms and conditions: ...</p> <p>“1st. The Cotton Mills to pay all taxes that may be collectible on this certificate.</p> <p>“2nd. This stock is sold at one hundred dollars per share, and is preferred, and no other preferred stock is to be issued by the Cotton Mills except eighty-two shares to the trustees of the funds bequeathed by the will of William D. Martin to the Society at Jefferson, Jackson County, Georgia, of the Methodist Episcopal Church South. Provided, however, that nothing contained herein shall (nor shall any action hereafter be taken to) prevent the issuing of common. stock until the whole number of shares shall reach one hundred thousand dollars, as provided in the charter.</p> <p>“3rd. The Jefferson Cotton Mills will pay to the holder or holders, out of the income or earnings, a cash dividend of 6% per annum, the same to be paid semi-annually, on the first day of June and the first day of December in each year at the office of the Jefferson Banking Company, of Jefferson, Ga.</p> <p>“4th. And to secure the prompt payment of said dividend semiannually, as well as the principal, the Jefferson Cotton Mills hereby binds and pledges to the holders of this certificate (and gives to them a first lien on) all its property, be real, personal, or mixed, that it now has or at any time hereafter may own, including its income, its assets, and its franchises, and all policies of insurance taken at any time on said property (and the Cotton Mills hereby contracts to keep it all at all times fully insured for the benefit of the holders of this preferred stock).</p> <p>“5th. No other or further profits or dividends will be paid on-this preferred stock, the holders of same waiving all rights to participate in profits, further than this 6% (which they are entitled to in any event).</p> <p>“6th. The holders of this certificate of preferred stock waive all authority or right to vote or participate in the management of the affairs of said cotton mills, except a right to vote on a question of amendment.of the charter of the same.</p> <p>“7th. Upon failure of the said cotton mills to promptly pay the semi-annual installment of the dividend when due or within sixty days thereafter, then the whole sum, principal and interest, shall become due and collectible at the option of the holders of this certificate, who are hereby authorized, without resort to any court, to take possession of said Mills, all its property, assets, etc., either in person dr by its agents appointed for that purpose, and operate the same, if they so desire, until it can be sold by them, which sale may be had within ninety days after they take possession, but not until thirty days notice in the newspaper that publishes the sheriff’s sales in said county, and to be at public outcry before the court-house door, unless otherwise agreed.</p> <p>“8th. The proceeds of such sale to be applied first to the payment of expenses and costs of proceedings; second, the principal and interest due on the preferred stock; third, the balance to be turned over to the Cotton Mills.</p> <p>“This stock is transferable on the books of'the company by the holder only, or his authorized attorney.</p> <p>“In witness whereof, the President and Secretary have hereunto affixed their hands and the seal of the Company, this January 10, 1905.</p> <p>“F. Roberts, Secretary. H. W. Bell, President.</p> <p>“Homer Hancock, N. P. J. C.</p> <p>“I hereby acknowledge the execution of the above certificate, my signature thereto attached, in the presence of Homer Hancock. This June 11, 1914. H. W. Bell.</p> <p>“Witness: Homer Hancock, N. P. J. C.</p> <p>“Jefferson, Ga., June 11, 1914. I, Homer-Hancock, hereby certify that H. W. Bell acknowledged in my presence that he signed the above certificate of preferred stock on the date therein mentioned, and the same is his signature. Homer Hancock, N. P. J. C.</p> <p>“State of Georgia- — Jackson Superior Court.</p> <p>“Piled June 13, 1914, 11 A. M. Recorded June 13, 1914, Book QQ, -page 50. N. B. Lord, Clerk.”</p> <p>The original intervention of the intervenors alleges, in substance, that they were the legally qualified trustees of Martin Institute of Jefferson and of the Methodist Episcopal Church South of Jefferson; that on January 10, 1905, the Jefferson Cotton Mills issued certificates to the two institutions named above, for 360 and 83 shares respectively, “of fully paid-up preferred stock in the Jefferson Cotton Mills;” the certificates having been jjaid for and accepted by- the trustees of the institutions named, upon the expressed terms and conditions therein set out; that under the certificates they have a first-mortgage lien upon all the property of the Jefferson Cotton Mills, including its assets, its franchise, and all policies of insurance; that this lien was executed upon all of the property of the mills, in order to better secure’ the payment of the money invested in the mills and 6% interest on the same, the same being a trust fund, and the officers and agents for the Jefferson Cotton Mills having due notice of this fact at the time of investment; that since the mills were placed in the hands of receivers and operated for the past three or four months, a profit over and above operating expenses has been accumulated, which, as intervenors understand, is shown by the report of the receivers, now in the custody of the court; that, taking as true this report and the information they have, they are now entitled to receive from the receivers of the Jefferson Cotton Mills the 6% interest upon the moneys invested in the mills; and that the same is due and is a superior lien upon all the property as well as the income of the mills, except State and county and municipal taxes. The prayers are that their lien be declared superior to all other liens, except taxes, upon all the property of the mills; and that their right to the 6%' interest upon the moneys invested in the mills be fixed and permanently established.</p> <p>The interventions were amended as follows: “By striking all of paragraph two of the intervention filed by said intervenors on the 15th day of January, 1915, except the following words appearing at the end of said paragraph, to wit: ‘and made a part of this intervention and marked exhibit “A,”’ and by substituting in the place of the language stricken from said paragraph two the following language and allegations, to wit: ‘On the 10th day of Jan., 1905, the said Jefferson Cotton Mills issued to the said Martin Institute and to said Trustees of said Martin Institute an instrument of writing in consideration of said trustees delivering and advancing to said Mills, in cash, the sum of $26,000.00. Said money belonged to said Martin Institute and said Trustees above named,' as Trustees of said Martin Institute, and was delivered and advanced by said Martin Institute and said Trustees to said Mills in consideration of said instrument of writing being issued and delivered to said Martin Institute and said Trustees, a copy of which instrument of writing is hereto attached/ '</p> <p>“By striking the word ‘certificate/ appearing in paragraph three of said intervention, and substituting in lieu thereof the following words, to wit: ‘instrument of writing/ and by striking from said paragraph three the following words, to wit: ‘invested and 6% interest on the same in the Jefferson Cotton Mills/ and substituting in lieu thereof the following words> to wit: ‘delivered and advanced as aforesaid, and 6 %* interest on said money as provided for and contracted to be paid in said instrument of writing/ and by striking from said paragraph three of said intervention the following words appearing at the end of said paragraph, to wit: ‘of investment/ and by substituting in lieu thereof the following words, to wit: ‘said money was delivered and advanced as aforesaid, and said instrument of writing was 'executed as aforesaid/</p> <p>“By striking from paragraph, five of said intervention the following words, to wit: ‘invested in/ and substituting in lieu thereof the following words, to wit: ‘delivered and advanced as aforesaid to.’</p> <p>“By striking from the second prayer in said intervention the words ‘invested in/ and inserting in lieu of said words the following words, to wit: ‘delivered and advanced as aforesaid to/ and by striking from the third prayer in said intervention the word ‘certificate’ wherever the same appears, and inserting in lieu of said word ‘certificate’ the following words, to wit: ‘said instrument of writing.’</p> <p>“By adding to said intervention and pleadings the allegations and prayers hereinafter in this and other paragraphs of this amendment set forth. Said sum of $26,000.00, belonging to said intervenors and delivered and advanced by 'them to said Mills, was used by said Mills for the benefit of said Mills. The interest on said sum of $26,000.00 at the rate of 6% per annum, contracted in said instrument of writing to be paid by said Mills semi-annually on the first day of June and the first day of December in each year and every year after said instrument of writing was issued, has not been paid since the first day bf-, 1913. Said Mills agreed to pay said interest in the third paragraph of said instrument of writing. Intervenors, who are now and who have been since said instrument of writing was first issued the holders of said instrument of writing, in the exercise of the right and option given them in the seventh paragraph of said instrument of writing, have heretofore declared and do now declare said sum of $26,000.00, and any and all interest which has accrued thereon under the terms of said instrument of writing, due, payable, and collectible; and intervenors desire that, as provided in the seventh paragraph, ‘the whole sum, principal and interest, shall become due and collectible’ at once.” The prayers of the amendment were: “That it be adjudged and decreed by this court, that under and by virtue of said instrument of writing and the facts hereinbefore set forth, that said Jefferson Cotton Mills are indebted to intervenors in the sum of $26,000.00, besides interest on said sum at the rate of 6% per annum from-: — day of-1913, and that to secure the payment of said $26,000.00 and all interest thereon said instrument of writing is a lien or mortgage, and intervenors have by virtue of said instrument of writing a lien or mortgage on said income or profits in the hands of said receivers and on said real estate and all improvements thereon and on any and all other property of said Jefferson Cotton Mills, and that said lien or mortgage on said income, real estate, and all other property of said Mills in the hands of said receivers or elsewhere is superior to any and all other claims or liens or rights of any and all other person or persons on said income or real estate or other property; that it be adjudged and decreed by this court that any and all cash now in the hands of said receivers, arising from income or profits made in operating said Mills or from any other source (except such amount as may be necessary to be retained by said receivers to pay court costs and expenses of said receivership), be paid to intervenors, to be applied to the payment of said interest and said principal sum of $26,000.00 and reasonable attorney’s fees incurred by said intervenors in this proceeding; that it be decreed and adjudged by this court that any and all property of said Mills in the hands of said receivers or elsewhere be sold, and that intervenors under and by virtue of said instrument of writing have a lien on the proceeds of said sale, superior to any and all other claims or liens of any nature whatever, and that the proceeds of said sale be applied to the payment of said interest and said principal sum of $26,000.00 delivered and advanced by intervenors to said Mills as aforesaid, and reasonable attorney’s fees incurred by intervenors by reason of having employed attorneys in this case; that it be decreed and adjudged by this court that intervenors, under and by virtue of the power given them in said instrument of writing, have the right to take possession of any and all of said property of said Mills in the bands of said receivers or elsewhere, and that said receivers be required to deliver to said intervenors any and all of said property, and that said intervenors be allowed and be given the right, under and by virtue of the power given them in said instrument .of writing, to operate the property of said Mills until said property belonging to said Mills is sold, and that intervenors have the right and power to sell any and all of said property under and by virtue •o'f the power given them in the said instrument of writing.”</p> <p>A demurrer to the interventions was overruled. To this ruling, and to the refusal of a new trial after verdict, exceptions were taken.</p>

<p>Claim to land. Before Judge Freeman. Heard superior court. January 6, 1916.</p> <p>Mrs. Buth Kramer obtained a judgment in personam in the city court of Carrollton, upon a promissory note, against J. L. Vaughan. An execution issued and was levied upon certain designated land. A claim was filed by J. W. Spradlin Sr. and J. W. Spradlin Jr.; and they made a motion to dismiss the levy. By consent of counsel for both parties the question of law made by the claim was passed upon in vacation. The court overruled-the motion to dismiss the levy, and the claimants excepted. The following is, in substance, the agreed statement of facts:</p> <p>Mrs. Kramer held a promissory note against J. L. Vaughan, together with a deed to the land in controversy, to secure the note. She obtained a general judgment upon this note against Vaughan (who at the time was insolvent), no reference being made in the judgment to the security deed, and no special lien being set up. Within four months after the date of this judgment Vaughan was. adjudicated a bankrupt. After this adjudication a deed was made hy Mrs. Kramer, reconveying the land in dispute to Vaughan for the purpose of levy and sale, which deed was duly recorded. The note and claim of Mrs. Kramer was not proved in bankruptcy, nor was the property in question administered by the trustee as a part of the estate of the bankrupt. Prior to the judgment in favor of Mrs. Kramer, Vaughan had parted with his title and possession of the land in controversy by selling it to the claimants in this case, who purchased bona fide and for value. The note sued upon by Mrs.- Kramer was given in renewal of one originally made in favor of her deceased husband. In his will her husband bequeathed to his wife, among other things, “all notes, accounts, and judgments that might be owing me at the time of my death, together with all lands, wherever situated, of which I may die seized and possessed, which said lands have been sold by me and bond for title given to the purchaser, and the purchase-money or any part thereof due me at the time of my death, my purpose being to convey such purchase-money notes to my said wife, together with the security I may hold therefor, and give her full power and authority to execute to the purchaser deeds in accordance with such bonds as I may have given; in case of payment to her, or in case she elects to sue, give her full authority to either bring suit for the land or to sue upon the purchase-money notes and execute to the purchaser, and have same recorded in the office of the clerk of the superior court where the land may lie, a deed for the purpose of levy and sale, as per the requirements of the law in such cases made and provided.”</p>

<p>Equitable petition. Before Judge Cox. Decatur superior court. November 12, 1915.</p> <p>H. B. Ehrlich & Company brought their action against 0. C. Wright and Mrs. Susan Wright. The material portions of -the petition are as follows: C. C. Wright is indebted to petitioners in the sum of $785.20, besides interest. In the year 1910 C. C. Wright was the owner of a certain described tract of land, and on July 1st of that year he did execute to Mrs. Susan Wright, his mother, a warranty deed to this land and this was subsequent to the creation of the debt to petitioners. While said deed purports to have been made in consideration of the sum of $2,000, in fact there was no consideration for it other than natural love and affection. At the date of the execution of the deed Wright .was insolvent and is now insolvent; this fact was known to the grantee; and the deed was in pursuance of a conspiracy between C. C. Wright and his mother, for the purpose of hindering and delaying and defrauding the creditors of 0. C. Wright. On November 28, 1910, C. C. Wright filed a voluntary petition in -bankruptcy, and on December 1, 1910, he was duly adjudicated a bankrupt. He did not, put the land referred to in the schedule of his assets. His personal property scheduled'was of the value of $450, which he claimed under an exemption. The indebtedness scheduled by the bankrupt was about $5,000. He has never procured a discharge from the bankruptcy court, and the statute- of limitations is now a bar to his right to a discharge. Petitioners have never proved their claim in the bankruptcy court, nor participated in the bankruptcy proceedings in any way. In September, 1914, petitioners sued out an attachment returnable to the November term, 1914, of the superior court, for the purpose of collecting their debt against Wright, which attachment was'levied on the land described. C. C. Wright was in possession of the plantation referred to on the day of the execution of the deed to his mother, and has since continued in possession and control of said premises, renting the land to tenants and collecting the rents exclusively for his own use. Petitioners pray, that the deed from C. C. Wright to Mrs. Susan Wright be delivered up and canceled as null and void; that the defendants be enjoined from disposing of the property; for the appointment of a receiver; for judgment against the land levied on under the attachment; that- the land be sold to satisfy petitioners’ demand; and for general relief.</p> <p>When the case was called for a hearing the defendants moved orally to dismiss the petition, “upon the ground that the same failed to set out any cause of action, and upon the further ground that the declaration showed on its face that the plaintiffs had no right in law to proceed in this cause of action against the defendants for the relief sought in the petition.” The--court overruled this motion, and the defendants excepted.</p>

Injunction. Before Judge Pendleton. Fulton superior court. November 11, 1915. The Bricklayers, Masons, and Plasterers International Union of America, a voluntary association, has a local union, known as Lodge No. 6, in the city of Atlanta. The plaintiff was a member of the local union, and was suspended for non-payment of a fine, which he alleges was imposed upon him by the local lodge without notice and in violation of the constitution and by-laws of the union.

<p>1. A leasehold in a railroad for the full term of 101 years, renewable in like periods forever, at the option of the lessee, creates an interest in the property.</p> <p>2. Such an interest is assessable for taxation against the owner thereof.</p> <p>3. A charter exemption from taxation, or a charter limitation as to the extent of the tax to be demanded of a railroad company on its property and appurtenances, will not be so extended as to exempt also the leasehold interest of parties to whom the company leases its property.</p> <p>4. A railroad company embraces in its system several railroads." Some portion of the railroad is protected by a charter limitation as to the extent of the tax to be demanded of the company on that property. Other portions of the railroad were acquired by the company and as to such portions the charter limitation does not apply. When the railroad company leases it's entire system to a lessee, and the lessee makes a return for ad valorem taxation on the whole fee of so much of the railroad as has no charter exemption, and omits from its return for taxation the leasehold interest of so much of the railroad as comes within the charter exemption, and where the proper taxing officer demands a return of the omitted leasehold interest, which is made under protest, the collection of the tax on such omitted leasehold interest will not be enjoined on the ground of lack of due process of law, or because the action of the taxing officer .denies to the lessee the equal protection of the laws, or because the taxation of the leasehold interest under these circumstances violates the clause of the State constitution as to uniformity of taxation.</p> <p>5. Inasmuch as the leases from the Augusta and Savannah and the Southwestern Railroad Companies to the Central of Georgia Railway Company create a claim or interest in the property separate and distinct from the fee, the taxation of the leasehold interest does not infringe any constitutional inhibition, State or Federal, against the impairment of contracts.</p> <p>6. The comptroller-general’s assessment of the leasehold interest of the Central of Georgia Railway Company in tlie railroads leased by it from the Augusta and Savannah Railroad Company and the Southwestern Railroad Company is in substantial compliance with the law providing for the assessment and collection of taxes due by railroad companies.</p>

<p>1. Where a city maintains a park primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. It would not affect the public character of the duties of the officers, agents, or servants of the city that a purely incidental profit might result to the city from its operation or management of the park.</p> <p>2. But if the city, having charter authority, maintain the park primarily as a source of revenue, the duty of maintaining it in a safe condition for the use for which it is intended would be ministerial, and municipal liability would attach for breach of such duty.</p>

<p>Complaint for land. Before Judge Searcy. Fayette superior court. December 29, 1915.</p>

Complaint for land. Before Judge Park. Baldwin superior court. December 6, 1915. Mrs. Mattie Prosser, as next friend of her daughter, Leone, filed her petition against Emmett L. Lawson, for the recovery of forty-nine acres of land, together with mesne profits. A verdict was rendered in favor of the plaintiff for the land in question, and for mesne profits. The defendant moved for a new trial, which was refused, and he excepted.

<p>Complaint for land. Before Judge Park.’ Hancock superior court. January 26, 1916.</p> <p>W. II. Eives leased from the Georgia Eailroad and Banking Company a small area of land for the purpose of constructing thereon a storehouse. He agreed to pay an amount for ground-rent, and reserved the right to remove the building, contracted to be erected thereon, within thirty days after the termination of the lease. The following provision appears in the lease contract: “Whereas ‘the title of the party of the first part to the premises here leased is disputed by other persons (the rightfulness of the claim of title by such person is, however, denied by the party of the first part), it is distinctly covenanted and agreed by the parties hereto, that should the title of the party of the first part fail, the party of the second part shall not hold or attempt to hold the party of the first part liable to the party of the second part in any manner for any damages that he may receive as tenant; or by reason of having erected his building on the leased premises, growing out of the failure of the title of the party of the first part.” Rives constructed a building on the leased premises. Subsequently the heirs of J. W. Moate instituted an action of ejectment against the Georgia Railroad and Banking Company, to recover a tract of land which embraced the premises leased by the railroad company to Rive's. The plaintiffs recovered in that action. Afterwards the same plaintiffs brought an action to recover the premises in possession of Rives, which he had leased from the railroad company. In his plea Rives denied the title of the plaintiffs, but admitted that he entered into possession of the land as tenant of the railroad company, and that plaintiffs had recovered the premises from the railroad company prior to the institution of the present action. He averred, that he did not defend that action because he was assured by the plaintiffs that they would not contest his right to remove the house in the event they prevailed; that under his contract with the railroad company the house which he built on the premises never became a part of the land, but was personalty, and that he was entitled to remove the same under his contract with the railroad company; that he entered into possession of the land under his lease contract in good faith, believing that the railroad company had the true title, and made permanent improvements, moving a storehouse upon the premises; and, if the plaintiffs be entitled to recover the land, he asked to set off the value of his permanent improvements. The court submitted the issues in the form of a special verdict, directing a finding as to the right of the plaintiffs to recover; as to the actual monthly rental value of the property with the improvements and without the improvements; and the present ‘cash value of the land with the improvements and without the improvements, and whether the defendant made the improvements in good faith. The plaintiffs being dissatisfied with the verdict moved for a new trial, which was refused, and they excepted.</p>

<p>Equitable petition. Before Judge Park. Hancock superior court. January 26, 1916.</p> <p>Misses Treasie and Acquillian Smith filed their petition against J. M. Pound, as administrator of the estate of their brother, John T. Smith, in which they prayed for reformation, specific performance, injunction, and general relief. The defendant filed his answer, and also a demurrer. The demurrer was sustained as- to certain grounds, but as to others it was overruled. The court allowed the plaintiffs to amend their petition. Upon the trial a verdict was returned awarding to the plaintiffs one of the two tracts of land in controversy. A motion for a new trial was overruled, and the defendant excepted to this, as well as to the other rulings adverse to him.</p> <p>The material allegations of the petition are as follows: J. M. Pound as administrator of the estate of John T. Smith, deceased, under an order of the court of ordinary, is proceeding to sell at public outcry two described tracts of land. This land is the property of the plaintiffs. They together with their brother, John T. Smith, contracted with E. E. Pound, now deceased, to purchase one of the tracts of land described, and later contracted with him to purchase the other tract. At the time of the purchase the plaintiffs and their brother were residing on one of the tracts, and it was agreed that they would purchase both tracts and that the same should be held and owned “in common by them during their lives, and that the survivors should take the fee to the entire property.” After the purchase as agreed upon the plaintiffs and their brother resided and farmed upon the lands, each working thereon for their common benefit, and from the proceeds of the property and the results of their joint labor it was paid for. The sisters, being illiterate and inexperienced in business affairs, each year turned over the crops as they were gathered to their brother, to market, with the instructions and understanding that the money arising therefrom should be paid on the purchase-price of the lands which they had bought. The sisters labored in the field side by side with their brother, and performed all the domestic duties. They practiced “the most rigid economy, never reserving one penny of compensation, except their meager purchase of wearing apparel, in order that every cent from said crop and other proceeds from said land should be applied to the purchase-money of said land.” One of the sisters, Treasie Smith, “paid in actual cash, at the time of the first purchase,” $350 on the ¡Durchase-price of the land, and at subsequent times her earnings as a midwife were contributed to the payment of the land. Until after his death the plaintiffs did not know that the titles to the land were made to their brother individually, as he had concealed this fact from them during his life, though they had entrusted him to make the payments upon the land, and to have the deeds executed to the three jointly, in accordance with their agreement. If the title be permitted to stand as it is, and the land be administered as the estate of their brother, the plaintiffs will be defrauded of their right and title thereto. The vendor of the land is dead, his estate has been administered, and the administrator discharged. Should the land be sold by the administrator of "their brother’s estate, the plaintiffs will suffer irreparable loss. The prayers are as follows: (a) “That the said two deeds hereto attached be reformed in conformity with the agreement between these petitioners and their said brother, Jno. T. Smith, expressing the grantees therein as petitioners and the said Jno. T. Smith jointly, for their natural lives, with remainder over to the survivors.” (1) “That the title to said land be decreed to the petitioners for their natural life, with the remainder over to the survivors.” (c) “That the said J. M. Pound, administrator of the estate of said Jno. T. Smith, be perpetually restrained, and enjoined from administering said land as the property of estate of said Jno. T. Smith, or from anywise interfering therewith in his capacity as administrator aforesaid'.” (d) “For such other and further relief as petitioners in equity are entitled to.”</p> <p>In his answer the defendant contended that the brother, John T. Smith, was the sole owner of the lands, which he had paid for from his own resources; that there was no concealment of his ownership; but that the deeds to both tracts of land were properly recorded in the clerk’s office, and therefore were notice to all who might want to know of their contents. .</p> <p>The grounds of demurrer to the petition were the following: (1) “There is no cause of action alleged.” (2) “There is no cause of action alleged hy which a court of law or equity would be authorized to reform a deed or deeds.” (3) “That petitioners have no legal or equitable right to have the title to land described in petition to be decreed to them for their natural lives, with remainder over to survivors. They have no such right of a specific performance against this defendant.” (4) “If petitioners have any cause of action at all, it would be a suit for damages for fraud and deceit.” “Defendant further demurs and moves to dismiss paragraph 3 of petition, because, if petitioners intend to claim the property described in the foregoing paragraph, the claim should have been filed with the ordinary of Hancock county, as the law provides for claims in such cases.” (5) “The petition does not allege or set forth a mutual mistake by the parties to the deeds which petitioners pray to have reformed.” (6) “The petition does not allege any mistake hy either E. F. Pound or John T. Smith, the parties named in the deeds.” (7) “The petition alleges concealment, deceit, and fraud on the part of John T. Smith, and no mistake on the part of E. F. Pound.” (8) “Defendant specially demurs and moves to dismiss petition, because petitioners have no legal or equitable right to have the contracts reformed, which were made and entered into by other parties; and petitioners, not being parties to the contracts, have no legal or equitable right to reform a contract making them parties thereto.” ’ 28 (9) “Defendant specially demurs and moves to dismiss paragraphs (a) and (&) in prayer, because no contract is alleged to have been made with E. E. Pound as grantor on one part, and petitioners and said John T. Smith jointly as grantees on the other part, for their natural lives, with remainder over to survivors.”</p> <p>The court ordered that the grounds of demurrer be sustained as to all portions of the petition and prayer for reforming the deeds, and that they be overruled as to dismissing the petition, and as to other matters therein contained.</p> <p>The amendment to the petition, as allowed, was as follows: “Strike section (a) of,the prayer of the petition, and substitute in lieu thereof the following: ‘ That this court decree the title conveyed by E. E. Pound and J. M. Pound, executor of the estate of E. E. Pound, to Jno. T. Smith to conform to the contract existing between the said Jno. T. Smith and plaintiffs, and that said land was held by the said Jnó. T. Smith in trust for himself and the plaintiffs for the term of their natural lives, with remainder over to their survivor, and that said land is not subject to be administered as the estate or any part of the estate of the said Jno. T. Smith.’ ”</p>

Injunction. Before Judge Gilbert. Taylor superior court. December 22, 1915.

<p>Ejectment. Before Judge Worrill. Early superior court. January 8, 1916.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. October 13, 1915.</p>

<p>Ejectment. Before Judge Worrill. Early superior court. January 14, 1916.</p>

<p>Motion to make party. Before Judge Pendleton. Fulton superior court. December 20, 1915.</p>

Petition for mandamus. Before Judge Ellis. Fulton superior court. January 17, 1916.

Injunction and receiver. Before Judge Pendleton. . Pulton superior court. May 3, 1916. The Southern Elour and Grain' Company instituted an equitable action in Eulton county against L. H. Jackson and Sims Jackson, alleged to be partners conducting a business in Eulton county under the name of L. H. Jackson; and against T. J. Jackson and J. E. Mozley.

Injunction. Before Judge Pendleton. Fulton superior court. May 3, 1916. In 1881 Alfred Austell died leaving a will which contained, among others, the following items: “Item 2.

<p>. Injunction. Before Judge Hammond. Richmond superior court. February 14, 1916.</p>

<p>Equitable petition. Before Judge Patterson. Milton superior court. August 7, 1915.</p> <p>In 1910 Webb borrowed money of Thompson, gave his note therefor, and executed a deed to land to secure its payment, taking a bond for title for reconveyance upon payment of the debt. The debt was due four years after the date of the note. At maturity Webb had paid neither principal nor interest. In the meantime he had been declared a bankrupt, and the trustee in bankruptcy, on August 13, 1913, sold the equity of redemption which Webb had in the land conveyed to secure Thompson. In the suit brought to recover the amount of principal and interest, Thompson charged the insolvency of Webb and waste on his part, and prayed for injunction and a receiver; which extraordinary relief was granted. To the suit the defendant filed a plea and answer, in which he admitted that he had been adjudicated a bankrupt, and that his equity of redemption in the land referred to had been sold as alleged; but he alleged that at the sale of his equity of redemption he purchased it and had paid a part of the purchase-money. The purchase-price was about $1260. He averred, that the plaintiff agreed to furnish him with money with which to make the purchase, but had not done so; that he purchased it upon an agreement with the plaintiff that if he would so purchase and make certain valuable improvements upon the land, he could continue to occupy it, and the plaintiff would allow liim to make two crops upon the land for the years 1914 and 1915, and would allow him those two years to make the improvements, and that if the defendant should make them within the two years the plaintiff would then allow the defendant five years after December 15, 1915, in which to pay off the debt; that he made and completed the valuable improvements, as stipulated in the agreement with the plaintiff, at a cost of $800, and says that now in equity and good conscience the plaintiff should stand to and abide his contract, and not be allowed to take judgment at this time. Upon the trial the court- directed a verdict for the plaintiff for principal and interest.</p>

<p>Equitable petition. Before Judge Eite. Whitfield superior court. December 17, 1915.</p>

Claim to land. Before Judge Eite. Murray superior court. January 31, 1916. The Bank of Eton obtained a mortgage fi. fa. against C. T. Owens, and had it levied upon certain real estate described as being a one-half undivided interest in lots of land 268 and 269 in the tenth district and third section of Murray county, as the property of the defendant in fi. fa.

<p>Equitable petition. Before Judge Wright. Walker superior court. December 1, 1915.</p>

<p>1. In a devise to one for life, with remainder to his children as a class, there being no child of the life-tenant in esse at the death of the testator, the remainder is construed to the contingent until the birth of a child, when the title to the remainder immediately vests, subject to open and take in all children born before the termination of the life-estate.</p> <p>2. A child belonging to the class referred to in the foregoing headnote has a leviable interest in the property devised.</p> <p>3. The court did not err in refusing an injunction restraining the enforcement of a fi. fa. against such interest.</p>

<p>Complaint. Before Judge Revill (of the city- court of Green-ville). Meriwether superior cour-t. August 17, 1915.</p> <p>The Bank of Haralson brought suit against W. M., L. A., J. M., and H. D. Caldwell, to recover the amount of certain promissory notes signed by the three defendants first named; and to obtain a decree to cancel and set aside a deed conveying realty from J. M. Caldwell to his son, H. D. Caldwell, on the ground that this deed was fraudulent and made for the purpose of defrauding petitioner and delaying and hindering the collection of the debt sued on and other debts of J. M. Caldwell. Afterward the receiver of the bank, R. W. Freeman, was made a party plaintiff. The suit was brought to the August term, 1914, of Meriwether superior court, which convened on August 18, 1914. Defendants retained an attorney at law to represent them. About three weeks before the court convened this attorney died. No appearance was made for the defendants at the August term, and the ease was duly marked in default. At the trial term next succeeding, the case “was continued by the plaintiff’s counsel.” No steps had been taken by the defendants to open the default. At the August term, 1915, a motion was made to open the default, and the defendants offered to plead instanter, showing that they had employed counsel as stated; that they believed a plea and defense had been filed, and, but for the fact that they had relied on the counsel so employed, they would have employed other counsel to represent them and to file a plea; and that they did not discover, until the August term, 1915, that the answer had not been filed. The court overruled the motion to open the default. A motion was then made, in behalf of H. D. Caldwell, to dismiss the ease, upon the following grounds: that there was a misjoinder of parties and a misjoinder of causes of action; that the land conveyed by the deed which the plaintiff sought to have canceled was not sufficiently described; that W. M. Caldwell was a resident of Pike county, and the process attached- to the second original was directed to the sheriff of Meriwether county; and that it was not alleged that W. M. and L. A. Caldwell were insolvent. The court overruled the motion, and the defendants excepted. In a note made by the judge before signing the certificate to the bill of exceptions, he stated that counsel for defendants, during his argument on the motion to dismiss, said that he had no objection to a judgment being rendered against W. M., L. A., and J. M. Caldwell for the amount due on the notes in this suit. No evidence was introduced; and the allegations of the petition not being denied, the 'court directed the jury to return a verdict and decree for the plaintiff for the principal sum due, together with interest, against the makers of the notes, and that the deed be delivered up and canceled.</p>

<p>Claim to land. Before Judge Cox. Decatur superior court. September 10, 1915.</p>

<p>Ejectment. Before Judge Thomas. Berrien superior court. September 23, 1915.</p>

<p>Claim to land. Before Judge Thomas. Berrien superior court. January 8, 1916.</p>

<p>1. Where an instrument in the form of and attested as a deed contains a clause that it is “to go into effect at the” signer’s death, and where there is no other indication as to the intention of the signer, and the paper is duly delivered, it will be construed to be a deed postponing possession.</p> <p>2. In view of the circumstances attending the trial and the character of the ease, the court did not abuse his discretion in overruling the motion for a continuance.</p>

<p>Equitable petition. Before Judge Kent. Laurens superior court. September 30, 1915.</p> <p>Mrs. Baehael C. Drew filed her petition seeking to have a lost deed to certain land established, to recover possession of the land, to cancel a deed held by the defendant, J. S. Drew 'Jr., and for mesne profits. Upon the trial the verdict was in favor of the plaintiff for the land in dispute, without rent. A motion for a new trial was overruled, and the defendant excepted to this ruling and to the refusal of a nonsuit.</p> <p>The plaintiff alleged in substance as follows: Though J. S. Drew Jr. is in possession of the land in controversy, the title to it is in the plaintiff. On August 27, 1895, J. S. Drew Sr., who was the husband of the plaintiff and the father of the defendant, conveyed this land to the plaintiff for her natural life, with remainder to her two children. The deed of conveyance was never recorded, but was “lost and destroyed.” A copy of the alleged lost deed was attached to the petition. By an amendment, which the court allowed, the names of the witnesses to the copy deed attached were changed, the date of the deed was changed, and the middle name of one of the grantees therein was changed. J. S. Drew Jr. claims possession of the land under a deed from his father, executed on December 29, 1904, and recorded. J. S. Drew Sr. died intestate on September 1, 1912. He as agent, and under the reservations of his deed to the plaintiff, had the exclusive right to the possession of the land until his death. For this reason the plaintiff was not advised that the defendant claimed the right of possession. The defendant had actual knowledge that the deed to the land had been executed and delivered to the plaintiff, having read it over and studied its contents before the time when he claims to have purchased the land. He knew that J. S. Drew Sr., prior to Ms death, returned the land for taxes in the name of the plaintiff. The plaintiff charges, on information and belief, that the defendant admitted that he knew, before purchasing the land, that Ms father had sold it to the plaintiff, but that it was the intention of the defendant to hold the land during the lifetime of the grantor, and that after the grantor’s death, should the plaintiff seek to recover it in the courts, he would continue to hold by delaying the trial for at least ten years, and for that time enjoy the rents and profits. For this reason the defendant is holding the land in bad faith.</p>

<p>Equitable petition. Before Judge Summerall. Ware superior court. December 8j 1915.</p>

<p>Claim to land. Before Judge Kent. Laurens superior court. November 24, 1915.</p>

<p>Motion for new trial. Before Judge Summerall. Bacon superior court. January 8, 1916.</p>

<p>Petition for injunction. Before Judge Summerall. Ware superior court. February 19, 1916.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. October 7, 1915.</p>

<p>1. The time to be fixed by the notice prescribed in the Civil Code (1910), §§ 3381-3, of when the ordinary will act on an application for setting apart a homestead, is not less than 20 nor more than 30 days from the date of the order of the ordinary to the surveyor. If more than 30 days intervene, the homestead is void.</p> <p>2. The homestead being invalid, the application for leave to sell it was irrelevant to any issue in the case.</p> <p>3. Where a civil engineer who made a survey and plat testifies that the same are correct, the plat is admissible in evidence.</p> <p>4. Where it becomes material to locate the line between the land in controversy and that of an abutter, the deed of such abutter to one of the defendants, conveying the abutting land and so describing the line that its physical location is ascertainable, is admissible.</p> <p>5. The evidence examined; and held, that it was error to direct a verdict for the defendants.</p> <p>6. A foreclosure of a mortgage by the statutory method, to which proceeding a junior vendee of the land is not a party, while not conclusive on such vendee is valid as between the holder of the mortgage and the mortgagor, and a purchaser at the foreclosure .sale acquires the legal estate of the mortgagor; and where no illegality in the foreclosure proceeding and the sheriff’s sale thereunder is made to appear, the sheriff’s deed is superior to the deed executed by the mortgagor after the date of the mortgage.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. January 7, 1916.</p>

<p>Habeas corpus. Before Judge Hill. Fulton superior court. May 1, 1916.</p>

Complaint for laud. Before Judge Hammond. McDuffie superior court. September 18, 1915. The action is to recover land, and the petition was dismissed on demurrer. Counsel for plaintiff and defendant concur that the correctness of the judgment on demurrer is dependent on the construction of the deed from John Megahee to,Stewart Beggs, trustee.

<p>Equitable petition. Before Judge Hammond. Jenkins superior court. October 4, 1915. -</p>

<p>Probate of will. Before Judge Charlton. Chatham superior court. August 24, 1915.</p>

<p>Injunction. Before Judge Summerall. Ware superior court. July 12, 1916.</p>

<p>Under the special facts of the case the court did not err in vacating the confirmation of the sale of the land, made-by virtue of an order directing the property to be sold in the partition proceeding for the purpose of division between the common owners of the land.</p>

<p>Equitable petition. Before Judge Kent. Laurens superior court. October 15, 1915.</p>

Claim to laud. Before Judge Smith. Newton superior court. September 21, 1915. Two mortgage fi. fas. in favor of the Peoples Bank of Mansfield, Georgia, and against L. R. Sams, were levied upon certain described real estate as the property of Sams. The Insurance Company of North America filed a claim to the property. Upon issue joined the case was tried, and at the conclusion of the evidence each party moved that the court direct a verdict in its favor.

<p>1. Where the issues of a ease are submitted to the judge, without the intervention of a jury, for his decision upon all matters of fact and of law, and he renders a judgment therein in term time, the losing party may review the judgment either by a direct bill of exceptions or by a motion for a new trial.</p> <p>2. The naming of a beneficiary in an insurance policy is an integral part of the contract, and can not be changed without a compliance with the stipulations in the policy.</p>

<p>The writ of ne exeat issues to restrain a person from leaving the jurisdiction of the State; and where the principal in a ne exeat bond appears and defends the suit against him for divorce and alimony, and is within the jurisdiction of the court when the final judgment is rendered against him, subject to the processes of the court, such writ becomes functus officio, and upon motion the court should declare the bond canceled and the sureties therein discharged.</p>

<p>Equitable petition. Before Judge Sheppard. Effingham superior court. October 18, 1915.</p>

<p>Exceptions to auditor’s report. Before Judge Walker. Wilkes superior court. September 3, 1915. .</p>

<p>Complaint for land. Before Judge Fite. Gordon superior court. August 23, 1915.</p>

<p>Equitable petition. Before Judge Wrigbt. Floyd superior court. September 25, 1915.</p>

<p>1. The evidence did not warrant a finding that the transaction of the defendant in the purchase of the two tracts of land in controversy created a resulting or implied trust in favor hf the plaintiff. At the time of the purchase the defendant sustained no fiduciary relation to the plaintiff; there was no contractual relation of principal and agent between them; and the defendant did not have in his hands funds of the plaintiff. That being true, the court did not err in -failing to give to the jury instructions based upon the theory that there was existing, at the time of the transaction referred to, a fiduciary relation between plaintiff and defendant.</p> <p>2. That a decree does not follow or is not authorized by the verdict upon which it is entered is not good ground of a motion for a new trial. Potts v. City of Atlanta, 140 Ga. 431.(79 S. E. 110).</p> <p>3. The questions submitted by the court to the jury substantially covered the issues involved, at least in a general way; and if other more particular questions were desired, counsel should have suggested them to the court. Greer v. Willis, 67 Ga. 43, 48.</p> <p>4. A ground of a motion for a new trial complaining that the finding of the jury was contrary to specified portions of the charge amounts merely to a complaint that the verdict was contrary to law, and the general grounds of the motion cover that exception.</p>

Exceptions to auditor’s report. Before Judge Park. Wilkinson superior court. January 5, 1916. The National Bauxite Company brought suit to recover a one-fourth undivided interest in a certain tract of land, and mesne profits, against the Republic Mining and Manufacturing Company and R. E- Briesnick. The case involved also an accounting between the parties, and was referred, under appropriate orders, to an auditor.

<p>Petition for injunction. Before Judge George. Ben Hill superior court. February 24, 1916.</p>

<p>Equitable petition. Before Judge Kent. Laurens superior court. October g6, 1915.</p> <p>Mary M. Colley filed her equitable petition against W. F. Colley, his wife, Elizabeth H. Colley, and J. Frank Colley and his wife, Minnie L. Colley, seeking injunction and the cancellation of certain deeds. Subsequently to the filing of the suit the plaintiff died, and her administrator, R. D. Flynt, was made a party plaintiff in her stead. Before the trial the case as to W. F. Colley and his wife was settled. Upon the trial, after the plaintiff had introduced evidence and closed, the defendants moved for a nonsuit, which was granted, and the plaintiff excepted.</p> <p>The evidence was in substance as follows: The plaintiff was a feeble and illiterate woman, seventy-odd years of age, and unable to sign her name. She was possessed in her own right of two city lots, with houses thereon, in one of which she resided. The other she rented, and lived upon that income as her only support. Her husband died, leaving three children by a former marriage. The plaintiff has no children. Soon after the death of her husband, one of her stepsons, without any knowledge on the part of'the plaintiff, had a will prepared for her to sign, and brought witnesses, and, after some changes, induced her to sign it, leaving her property involved in this suit to her stepsons, one of whom is a defendant in this case. However, it appears that there is no claim made under this will. Shortly afterwards, the other stepson called her into his office and requested her to sign a paper, having secured the necessary subscribing witnesses, one being a notary public. The son stated in the presence of the plaintiff that the paper she was to sign was a power of attorney for the purpose of authorizing him to transact her business, on account of her age and feeble condition. She signed two deeds conveying one house and lot to the wife of one of the stepsons, and. the other house and lot to the wife of the other stepson. Qne stepson moved into the house occupied by the plaintiff, and the other stepson demanded rent of the tenant occupying the other house. The plaintiff had no knowledge of having signed deeds to her property until she was notified by the tenant that he had been requested to pay the rent by the grantee in the deed covering the premises. The plaintiff said, “If I had known they were deeds I would not have signed them.” The plaintiff then filed an equitable petition to have these deeds set aside, on account of fraud. On cross-examination the plaintiff said, among other things: “Frank Colley nor his wife ever did anything to induce me to sign any will or any deed. They never used any fraud to get me to do it. I know of no conspiracy entered into to get me to do it. It was an advantage over me. I think they had something to do with it.”</p>

Ejectment. Before Judge Bell. Eulton superior court. November 3, 1915. Nathaniel E. Gardner, being seized and possessed of certain land, conveyed the same by deed, the material parts of which are: “State of Georgia, Eulton County. “This indenture, made and entered into this the fourth day of July in the year of our Lord one thousand eight hundred and sixty-six between NathanieLE.

<p>Equitable petition: Before Judge Hardeman. Bulloch superior court. December 4, 1915.</p>

<p>Equitable petition. Before Judge Smith. Clayton superior court. November 3, 1915.</p>

Petitions for injunction. Before Judge Hammond. Biehmond superior court. May 29, 1916. On May 27, 1916, Matthew Delaney, P. C, Carr, E. M. Green, and A. A. Hett Jr. each presented his petition praying for injunction against J. T. Plnnlcett, sheriff of Kichmond county.

<p>Equitable petition. Before Judge Pendleton. Pulton superior court. January 29, 1916.</p>

<p>1. The act of August 11, 1915 (Acts 1915, p. 18), is not violative of art. 3, see. 7, par. 8, of the constitution of this State (Civil Code, § 6437), which provides: “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.”</p> <p>2. When the act of 1915, just mentioned, is considered in its entirety, in the light of the history of its passage as disclosed by the admissions in the pleadings in this ease, it sufficiently appears that the act is applicable to the proposed application for charter which is the subject-matter of the suit.</p> <p>3. The act of December 17, 1892 (Acts 1892, p. 37), the purpose of which was to carry into effect an amendment to the constitution of this State (art. 3, sec. 7, par. 18; Civil Code, § 6446), relating to the incorporation of railroad companies, is a general law within the meaning of art. 1, sec. 4, par. 1, of the constitution (Civil Code, § 6391), which declares, in part: “Laws of a general nature shall have uniform opera- ' tion throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law.” The act of 1915 (supra), purporting to amend the act of 1892, is a special enactment having reference to a matter for which the existing general law provided; and is void as violative of the provision of the constitution above quoted.</p> <p>4. It was erroneous to refuse the mandamus absolute.</p>

<p>Petition for injunction. Before Judge Worrill. Miller superior court. April 29, 1916.</p>

<p>Equitable petition; from Fulton.</p>

<p>Injunction. Before Judge'Littlejohn. Sumter superior court. March 13, 1916.</p>

<p>Affidavit of illegality of execution. Before Judge Pendleton. Fulton superior court. December' 16, 1915.</p>

<p>1. The superior court has jurisdiction of an equitable petition filed by a member and certificate-holder of a fraternal benefit association chartered by the superior court, in behalf of himself and of all others similarly situated, against such association, for the purpose of having it placed in the hands of a receiver to conserve the property of the association, alleged to be going to waste on account of the illegal removal of two of the executive officers of the. association by the parent society, and the refusal of the other three to act, and to keep it a going concern until other officers can be legally elected to transact the business of the association according to its charter and by-laws.</p> <p>(а) The superior court was not deprived of such jurisdiction by the act of the General Assembly approved August 17, 1914 (Acts 1914, p. 99 et seq.), which provides that no application for injunction'against, or proceedings for the dissolution of, or the appointment of a receiver for any such domestic society or branch thereof shall be entertained by any court in this State unless the same is made by the attorney-general; inasmuch as the act of 1914, in section 29, expressly excepts from its operation grand or subordinate lodges of Odd Fellows.</p> <p>(б) No objection having been raised in the court below to the constitutionality of the exception in the act above recited, such objection will not be considered by this court.</p> <p>(o) Nor is the superior court without jurisdiction of the case for the alleged reason that the defendant is an insurance company or association, and must be chartered by the Secretary of State; it appearing that the defendant is a fraternal benefit association.</p> <p>2. The allegations of the petition are sufficient to bring the case within the jurisdiction of a court of equity; and the trial judge on an interlocutory hearing did not err in making an order restraining the defendants from certain acts complained of, nor in appointing receivers for the purposes therein stated, subject to the .further orders of the court.</p> <p>3. A court of equity has no jurisdiction in this State to dissolve a corporation. The Civil Code (1910), §§ 2238 et seq., and acts amendatory thereof, provide how public and private corporations may be dissolved.</p> <p>. (a) But where some of the officers of a corporation have been suspended by a “subcommittee of management” claiming to have authority to suspend, and other officers refuse to act in the management and control of the corporation, a court of equity has jurisdiction in a proper case to appoint a receiver to conserve the assets of the corporation, alleged to be going to waste, and keep it a going concern, and to grant an injunction until other officers can be legally elected to conduct its affairs according to its charter and by-laws.</p>

<p>Habeas corpus. Before Judge Patterson. Cobb superior court. March 29, 1916.</p>

Injunction. Before Judge George. Crisp superior court. March 10, 1916. Held: the same to be held by the receiver as a part of the assets of the Cordele Bank.

<p>Ejectment. Before Judge Kent. Laurens superior court. December 31, 1915.</p>

<p>Injunction. Before Judge Thomas. Brooks superior court. May 27, 1916.</p>

<p>Petitioners were not entitled to the injunctive relief sought, and the court properly refused to grant it.</p>

<p>Equitable petition. Before Judge Highsmith. Camden superior court. December 28, 1915.</p>

<p>Claim to land. Before Judge Bell. Eulton superior court. November 11, 1915.</p>

Complaint for land. Before Judge Hammond. Richmond superior court. January 19, 1916. This was an action to recover land in the City of Augusta, which was devised under the will of Miss Olivia M. Oliver, probated in 1868. The property was levied upon and sold at city sheriff’s sale on November 5, 1889, under sundry city tax executions .for taxes accruing many years after the death of Miss Oliver.

<p>Injunction and receiver. Before Judge Jones. Habersham superior court. September 13, 1916.</p>

<p>Equitable petition. Before Judge Eite. Dade superior court. July 34, 1916.</p>

<p>Petition for injunction. Before Judge Hardeman. Candler superior court. September 25, 1916.</p>

<p>Temporary alimony. Before Judge Wright. Eloyd superior court. October 13, 1916.</p>

<p>Indictment for murder. Before Judge Hill. Fulton superior court. June 17, 1916.</p>

<p>Indictment for murder. Before Judge Brand. Oconee superior court. September 9, 1916.</p>

<p>Indictment for murder. Before Judge Park. Greene superior court. October 9, 1916.</p>

<p>Application for certiorari to Court of Appeals (Case No. 7443),</p>

<p>Indictment for murder. Before Judge Summerall. Ware superior court. August 12, 1916.</p>

Complaint for land. Before Judge Summerall. Effingham superior court. April 17, 1916. The Citizens Bank of Sylvania instituted an action of complaint for land against F. 0. Hodges and his wife, Mrs. Nora Hodges, and E. F. Hodges, their son, to recover two tracts of land, one containing 60 acres, more or less, and the other 101 acres, more or less.

<p>Mandamus. Before Judge Sheppard. Liberty superior court. May 20, 1916.</p>

<p>Where an action, was brought in the superior court, and after trial the case was brought to this court for review, which held that the cause of action was not for an equitable accounting, but was one of tort, and on the second trial no amendment to the petition was made which would on writ of error to this court bring it within its jurisdiction, the case will be transferred to the Court of Appeals for review and determination, as provided by art. 6, sec. 2, par. 5, of the constitution of the State as amended.</p>

<p>Equitable petition. Before Judge Sheppard. McIntosh superior court. September 19, 1916.</p>

<p>Equitable petition. Before Judge Jones. Lumpkin superior court. April 20, 1916.</p>

<p>Intervention. Before Judge Mathews. Bibb superior court. May 30, 1916.</p>

<p>The acts of the General Assembly approved August 4 and August 8, 1916, respectively (Acts 1916, pp. 475, 476), the former entitled “An act to abolish the board of commissioners of roads and revenues of Murray County, and to provide for the disposition of the papers, books, accounts, contracts, and all other business pending before the board, and for other purposes,” and the latter entitled “An act to create a board of supervisors of roads, bridges, and road funds for the County of Murray; to provide for their election; to give them control of the roads, bridges, and road funds of the county; to define their powers; to require them to give bond; to provide for their election; to fix their pay, and for other purposes,” were nugatory and ineffectual as failing to provide adequate and legal election machinery for holding the election at which such acts were to be voted on for ratification or rejection, and to whom the returns should be made, and who should declare the result of such election.</p>

<p>Complaint for land. Before Judge Patterson. Cherokee superior court. September 29, 1916.</p>

<p>Subrogation arises only in 'those eases where the party claiming it a’dvanees the money to pay a debt which, in the event of default by the debtor, he would be bound to pay, or where he has some interest to protect, or where he advances money under an agreement express or implied, made either with the debtor or creditor, that he shall be subrogated to the rights and remedies of the creditor. The allegations of the petition present no case for the application of the doctrine of conventional or equitable subrogation, and it should have been dismissed on demurrer.</p>

<p>Motion to enter judgment. Before Judge Wright. 'Walker superior court. February 24, 1916.</p>

<p>1, Where an administrator sought specific performance, alleging that his intestate had contracted for the purchase of two lots constituting the northern half of a certain tract of land, that the defendant (a son of the intestate) had purchased from the same owner two lots constituting the southern half of the same tract (all of which belonged to the same owner), and had taken a deed conveying the entire tract, including the four lots referred to, to his mother and himself jointly, and that after the date of the deed he had recognized the mother’s right and title to the two northern lots and agreed to convey the same to her, the petition was not demurrable on the ground that the grantor in the deed to the defendant was not a party to the petition, and that he was a necessary party.</p> <p>2. The evidence authorized the auditor’s findings upon the issues of fact involved in the case.</p>

<p>Equitable petition. Before Judge Freeman. Carroll superior court. June 5, 1916.</p>

<p>A writ of error will not lie to the Supreme Court to correct the judgment of the superior court in a proceeding of processioning land, instituted under the Civil Code, §§ 3817-3823. Where a writ of error in a ease of that character is brought to this court, it will, in conformity with the constitution of this State, be transferred to the Court of Appeals.</p>

<p>Equitable petition. Before Judge Cox. Decatur-superior court. November 14, 1916.</p>

<p>1. Where the penal laws of this State provide for the punishment of an offense which is punishable, also by ordinance of a municipality, the State law supersedes the city ordinance, and one convicted of a violation of such ordinance, and against whom a charge is pending for a violation of the State law, will be discharged on habeas-corpus proceedings brought against the chief of police of the municipality, who restrains the person so convicted of his libertjr, upon such facts being made to appear. In such case it is not error to remand the applicant for habeas corpus to the custody of the chief of police, to be by him turned over to the sheriff of the county, to be dealt with for the State offense.</p> <p>(a) Where in such-a case the defendant in' the recorder’s court is convicted of the same offense as covered by the State law, such conviction is void, and the defendant will be discharged on habeas corpus.</p> <p>2. The court did not err in discharging the applicant and remanding him 'to the custody of the sheriff of the county.</p>

<p>1. Where there is a conflict between the bill of exceptions and the record as to matters which form a part of the record, the latter will control.</p> <p>2. The trial court did not err in remanding the minor child to the custody of the defendant.</p>

<p>1. Where the constitution creates an office and prescribes the duties of the holder thereof, and declares that other duties may be imposed on him by statute, he has no authority to perform any act not legitimately within the scope of such statutory and constitutional provisions.</p> <p>2. The attorney-general of this State was without authority to institute an.equitable action in the name of the State, on the relation of a number of designated individuals,«against'a domestic corporation, to enjoin it from doing acts alleged to'be ultra vires. Whether such an action could legally have been brought by the attorney-general by express direction of the Governor is a question not involved in this case.</p> <p>3. The judge properly refused to grant an interlocutory injunction; but he was without jurisdiction to dismiss the action before the appearance term.</p>

<p>Contracts for the public printing are to be let to the lowest responsible bidder, and no public officer shall be interested, either directly or indirectly, in such contract. If the lowest bidder be a corporation the stockholders of which include a public officer at the time its bid is submitted and opened, and the stockholder who is a public officer severs his connection with the corporation by a bona fide sale of his stock, the corporation’s disqualification to enter into the contract is removed, and it is competent to make a contract pursuant to its bid.</p>

<p>Question certified by Court of Appeals (Case No. 6805).</p>

<p>Questions certified by. Court of Appeals (Case No. 7269).</p>

Accusation, of misdemeanor; from city court of Savannah— Judge Rourke. August 8, 1916. Transferred by Court of Appeals. Andrew D. Barbour was convicted in the city court of Savannah on an accusation charging him with a violation of the prohibition law. The accusation contained six counts. The defendant was found guilty on the fourth count. He filed a motion for a new trial, and a motion in arrest of judgment.- Both motions were overruled, and he excepted.

Accusation of misdemeanor; from city court of Savannah— Judge Eourke. July 1, 1916. Transferred by Court of Appeals. John D. Bunger was charged with a violation of the prohibition law. The accusation contained four counts. Upon two counts the defendant was found not guilty. One count was abandoned, and upon the fourth count he was found guilty. He filed a motion for a new trial, and a motion in arrest of judgment. Both motions were overruled, and he excepted.

Accusation of misdemeanor; from city court of Savannah— Judge Eourke. July 1, 1916. Transferred by Court of Appeals. Costos Lagos was convicted in the city court of Savannah on an accusation charging him with a violation of the prohibition law. The accusation contained four counts. The defendant was found guilty on the second, third, and fourth counts. He filed a motion for a new trial, and á motion in arrest of judgment. Both motions were overruled, and he excepted.

Equitable petition. Before Judge Mathews. Bibb superior court. February 17, 1916. George W. Jackson brought a petition against his wife, Mrs. Amelia C. Jackson, and alleged substantially as follows: They were married on December 6, 1891, and lived together as husband and wife until June, 1915. There are four children, all of age.

<p>Claim. Before Judge Mathews. Crawford superior court. March 24, 1916.</p>

<p>Equitable petition. Before Judge Mathews. ■ Bibb superior court. March 18, 1916.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. April 29, 1916.</p>

<p>Complaint for land. Before John B. L. Smith, judge pro hae vice. Houston superior court. May 15, 1916.</p>

<p>The writ of prohibition is employed to arrest illegal proceedings by any court officer, where no other relief is given. The charter of the City of Macon confers power upon the recorder “to issue attachments and inflict summary punishment for contempt” of the recorder’s court. Email erroneous decision by the recorder on a question of contempt there is a remedy by certiorari. Accordingly the writ of prohibition will not lie to prevent 'the recorder of the City of Macon from proceeding with the trial of persons charged with contempt of the recorder’s court.</p>

<p>Equitable petition. Before Judge Walker. Warren superior court. March 9, 1916.</p>

<p>Equitable petition. Before Judge Worley. Hart superior court. November 21, 1916.</p>

<p>Claim. Before Judge Patterson. Milton superior court. March 6, 1916.</p>

<p>Equitable petition. Before Judge Patterson.. Cobb superior court. March 24, 1916.</p>

<p>1. A principal may commit a fraud through his agent, and evidence of the part which the agent takes in perpetrating the fraud for the benefit of his principal is admissible against the principal.</p> <p>2. A contract may be rescinded at the instance of the party defrauded, if the injured party acts promptly on the discovery of the fraud, and restores or offers to restore to the other whatever he has received by virtue of the contract, if it be of any value.</p> <p>3. None of the assignments of error are meritorious, and the verdict is ' supported by the evidence.</p>

<p>Petition, for injunction. Before Judge Fite. Gordon superior court. June 26, 1916.</p>

<p>Probate of will. Before Judge Patterson. Cobb superior court. July. 28, 1916.</p>

<p>Equitable petition. Before Judge Eite. Murray superior court. February term, 1916.</p>

<p>Where an administrator sells property of the estate at an inadequate price, and where the facts show other and corroborating evidence of . fraud, the sale should be set aside. The jury having returned a verdict in conflict with the ruling just stated, under the facts of the case it was error to overrule a motion for a new trial.</p>

<p>Equitable petition. Before W. M. Henry, judge pro hac vice. Walker superior court. February 25, 1916.</p>

Attachment. Before Judge Wright. Walker superior court. March 2, 1916. E. A. Colclough sued out an attachment against J. H. McReynolds, Mrs. J. H. McReynolds, and Earl Cook, on the ground that they were non-residents of the State.

<p>Complaint. Before Judge Bartlett. Polk superior court.. March. 8, 1916.</p>

<p>Complaint. Before Judge Worrill. Miller superior court. March 1, 1916.</p>

<p>Action to establish deed. Before Judge Bartlett. Haralson superior court. April 10, 1916.</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. September 1, 1916.</p>

<p>Equitable petition. Before Judge Thomas. Berrien superior court. March 18, 1915.</p>

<p>Habeas corpus. Before Judge Smith. Campbell superior court. October 23, 1916.</p> <p>The sentence referred to in the syllabus (supra) was passed by Judge Daniel. It began with the following words: “On request of the defendant and his counsel in open court, before sentence was imposed, that sentence in this case be so molded as to permit him to leave the State of Georgia, and that he desires to begin a new life elsewhere, and that for that reason he desires that part of the sentence in this case be suspended,” etc. It then imposed the penalties stated in the headnote, and closed with the words: “It is further ordered that the sentence of twelve months in the chain-gang be suspended for thirty days from this date, to enable the defendant to carry out his wish to leave the State of Georgia.”</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. November 24, 1916.</p>

<p>Equitable petition. Before Judge Hardeman. Washington superior court. September term, 1916.</p>

<p>The juvenile-court act of 1915 (Acts 1915, p. 35) does not deprive the superior court of a county where that act is applicable of its jurisdiction to try a defendant indicted for burglary, although such defendant may have been less than sixteen years of age at the time of the alleged commission of the crime. .Accordingly, it was not error for the judge presiding in the superior court to overrule a plea to the jurisdiction, based on the juvenile-court act, and to conduct the trial according to established procedure appropriate in such eases. A conviction based on sufficient evidence, when the trial is free of prejudicial error, is not illegal because the defendant may have been less than sixteen years of age at the time.of the commission of the crime..</p>

<p>Petition for injunction. Before Judge Highsmith. Glynn superior court. January 3, 1917.</p>

Indictment for murder. Before Judge Patterson. Cobb superior court. October 30, 1916. James B. Yernon was indicted for the murder of L. L. Yernon.

<p>Complaint for land. Before Judge Mathews. Houston superior court. June 26, 1916.</p>

<p>Motion to vacate receivership. Before Judge Park. Warren superior court.. March 7, 1916.</p>

<p>Equitable petition. Before Judge Worley. Franklin superior court. November 13, 1916.</p>

<p>Equitable petition; from Jackson.</p>

<p>Claim. Before Judge Brand. Oconee superior court. October 6, 1916.</p>

<p>Injunction. Before Judge Patterson. Cherokee superior court. September 29, 1916.</p> <p>The Bank of Ball Ground brought a petition against W. F. and J. F. Authur, alleging substantially the following facts: The defendants are indebted to petitioner in the sum of $3500, evidenced hy five promissory notes. One of the notes is for the sum of $1000, signed by Jim Authur. Both defendants agreed to pay that note, and, in consideration of the bank extending a loan for the additional sum of $2500, further agreed to secure the whole indebtedness by transferring to the bank a bond for title executed by W.- B. Tate to the defendants, wherein the obligor bound himself to execute a title to the defendants upon' the payment of a loan of $3000, secured by deed to the land described in the bond, and to- give a mortgage upon all their personal properly and upon all crops grown on the land' during the year 1916. Concurrently with this agreement, J. F. Authur delivered to the bank the bond for title, upon which W. F. Authur had indorsed a transfer of his interest to his eodefendant, with the promise that he would later execute a transfer of the bond to the bank, and that both defendants would execute a mortgage upon their personal property and upon the crops grown upon the land described in the bond as soon as the crops came into existence. Subsequently the defendants refused to make the transfer or .to execute the mortgage. In the meantime the defendants settled their indebtedness to Tate with money borrowed from one Poole, to whom they executed a deed to the same land to secure a debt of $4325. The defendants have no property other than that referred to in the petition; and the bank is informed that they are trying to dispose of their equity in the land and to sell their personal property. The prayers of the petition are, to enjoin the defendants from disposing of or transferring their property, and from creating any lien thereon other than in favor of the plaintiffs. The defendants Sled a demurrer, and an answer wherein they denied the essential allegations of the petition. Upon an interlocutory hearing the court passed an order temporarily enjoining the defendants from transferring the bond for title held by them or either of them, or any bond for title that they may have to the land, and from disposing of the land or creating any lien thereon. To this order they excepted.</p>

Appeal. Before Judge Wright. Chattooga superior court. March 23, 1916. B. F. Gilmer died in possession of two 'adjoining lots of land known respectively as lots 95 and 112 in the fourteenth district of the fourth section of Chattooga county. He had been twice married. Administration was granted upon his estate, and his widow applied to have a dower set apart to her out of his estate.

Rule for contempt. Before Judge Wright. Walker superior court. June 28, 1916. Don C. Harris and others, taxpayers of Walker county, filed in the superior court of that county a petition against the Board of Commissioners of Walker county and certain other parties, for an injunction against the construction of a new court-house at LaEayette in Walker county, and the levying of taxes with which to pay for the same.

Equitable petition. Before Judge Searcy. Fayette superior court. April 29, 1916.

<p>Appeal. Before Judge Littlejohn. Sumter superior court. June 5, 1916.</p>

<p>1. Where by charter authority is conferred upon the mayor and council of a municipality to provide by ordinance for the paving of its streets - and sidewalks, but the charter does not provide for notice to the taxpayers and for a bearing as to the reasonableness or unreasonableness of the tax imposed to pay for such pavement and as to whether it is necessary to be laid, and where in pursuance of the charter an ordinance is passed by the mayor and council, requiring the paving of certain streets, but there is no provision in the ordinance for a hearing after notice to the taxpayers, the ordinance is illegal and void, because it offends the due-process clause of the constitution of the United States and of this State.</p> <p>2. But the section of the charter which confers authority upon the municipality to pave the streets and sidewalks, and to pass ordinances providing for such improvements and for their maintenance, and for the manner in which the same may be paid for, whether by the municipality or by the landowners or by both, is not void upon the ground that it violates the due-process clause of the constitution; for the provision that the municipality shall have authority to pass ordinances and laws providing for the pavement of the streets and sidewalks of the city whenever necessary, and to provide how said paving shall be paid for, whether by the municipality or by the owners of adjacent lands, or by both, by necessary implication confers upon the municipality the authority to make provision for notice to the owner, and for a hearing, after notice, upon the questions of the necessity for the proposed work and the reasonableness of the cost.</p>

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. August 4, 1916.</p>

<p>1. W. in his individual capacity executed and delivered a deed to land to secure a named indebtedness due by him to L. The deed stipulated that it was given to secure “any and all indebtedness” which W. “may hereafter owe” to L. After the delivery of the deed W. became a member of a partnership which also became indebted to L. Upon the dissolution of the partnership with the knowledge of L., its entire indebtedness due L. was assumed by W. Held, that under the terms of the security deed, when W. assumed the debt of the copartnership, it became his debt, and was covered by the deed described.</p> <p>2. The court did not err in striking from the agreed statement of facts evidence in regard to the placing of permanent improvements on the land by subsequent grantees. These grantees bought an equity entitling them only (1) to pay up the indebtedness secured by the deed and take the property, or (2) to the surplus of cash, if any, after sale of the property and payment of the debts. The record of the security deed was constructive notice to subsequent grantees. Actual notice was not necessary.</p> <p>3. The ruling in the first headnote renders it unnecessary to rule on the striking, from the agreed statement of facts, of evidence in regard to the schedule of liabilities filed by Waters in the bankruptcy court.</p>

<p>Motion to enter judgment. Before Judge Charlton. Chatham superior court. March 11, 1916.</p>

<p>1. A judgment of the court of ordinary probating a nuncupative will is binding upon heirs who are named as such in the application for probate, and upon whom service is duly made, until it is set aside in proceedings duly instituted for that purpose.</p> <p>2. Where in the application for probate in solemn form of a nuncupative will certain persons were named as heirs and service upon them was prayed, and in the judgment upon this application service upon all the heirs of the named decedent was recited, and the will was set up and declared to be the will of that decedent, all of those who were so named-as heirs are bound by the judgment, and can not collaterally attack the will.</p>

<p>Equitable petition. Before Judge Thomas. Berrien superior court. February 12, 1916.</p>

<p>Intervention. Before Judge Mathews. Houston superior court. March 28, 1916.</p>

<p>Equitable petition. Before Judge Jones. White superior court. October 13, 1916.</p>

<p>Equitable- petition. Before Judge Wright. Eloyd superior court. May 1, 1916.</p>

<p>Equitable petition. ■ Before Judge Freeman. Carroll superior court. June 23, 1916.</p>

<p>Claim. Before Judge Thomas. Brooks superior court. May 1, 1916.</p>

<p>Petition for injunction. Before Judge Freeman. Troup superior court. December 30, 1916.</p> <p>The Eady-Baker Grocery Company was incorporated by order of the superior court on May 5, 1897. The application for charter prayed that the applicants and their successors be incorporated “for a term of twenty years, with the privilege of renewal at the expiration of said term.” The order of incorporation declared that the applicants “and their successors be and they are hereby incorporated for a term of twenty years as a private corporation, with the privilege of renewal at the expiration of said twenty years, under the name and style of the Eady-Baker Grocery Company.” A short time before the expiration of the charter the corporation adopted a resolution, by a vote of the holders of a majority of the stock of the corporation, authorizing and empowering the board of directors, together with the president of the corporation, to have the charter renewed for a period of twenty years. At the meeting of the stockholders at which this resolution was adopted W. S. McKemie and George A. Speer, minority stockholders, were present and voted against the resolution. Agreeably to the resolution, the corporation filed an application for renewal, and the application for such renewal was being published as required by the statute, when McKemie and Speer filed a petition against the corporation and its officers, to enjoin them from proceeding further with the publication of the application to renew the charter of the Eady-Baker Grocery Company, and praying for an administration of the assets of the corporation by means of a receivership upon the expiration of its present corporate term, on the ground that they had not assented to the corporate action authorizing a renewal of the charter. The court refused the injunction, and the plaintiffs excepted.</p>

<p>Petition for injunction. Before Judge Howard. Muscogee superior court. February 23, 1917.</p>

<p>Under the evidence in this ease, the court did not err in granting the interlocutory injunction prayed.</p>

<p>Partition. Before Judge Park. Jasper superior court. August 30, 1916.</p> <p>B. E. Goolsby filed a petition against C. J. Goolsby and B. C. Goolsby, for a partition of land and for an accounting of rents, issues, and profits. It was alleged as follows: A large plantation belonging to the grandfather of the plaintiff and the defendants was about to be sold, and they were entitled as heirs at law to share in the proceeds of the sale. They entered into an agreement to buy the land as tenants in common. The land was sold and bid in by the plaintiff for himself and the defendants. Each contributed his inheritance towards the purchase-price. E. C. Goolsby advanced a large part of the purchase-price, and the balance of the money was borrowed. It was agreed between the purchasers, that, as long as it was mutually agreeable, the rents, issues, and profits should be applied to making improvements on the land, to paying B. C. Goolsby for his advance on the purchase-price, and to discharge the loan; and that C. J. Goolsby was to take charge of the plantation, collect the rents and profits, and pay them to B. C. Goolsby and the lender of the borrowed money. Subsequently a loan was procured from the British and American Mortgage Company, from the proceeds of which the former loan was discharged and the latter loan was secured by deed to the land. In pursuance of the agreement O. J. Goolsby entered into possession and is still in possession; he has made improvements on the land, collecting the rents, issues, and profits and applying them to the improvements and to the discharge of the debts due B. C. Goolsby and the British and American Mortgage Company on the land. A controversy arose between plaintiff and defendants as to further improvements upon the land, the plaintiff objecting to‘further improvements, and the defendants insisting on additional improvements being made and paid for out of the rents, issues, and profits. E. C. Goolsby now insists that petitioner has no title or interest in the land, and that he owns a two-thirds interest and C. J. Goolsby owns a one-third interest in the land; and the defendants refuse to further account to plaintiff for his share of the rents, issues, and profits. The prayer is, that the plaintiff be decreed to own a one-third interest in the land; that R. C. Goolsby be required to account to plaintiff for his share of the rents, issues, and profits; that the amounts qf indebtedness due R. C. Goolsby and the British and American Mortgage Company be ascertained, and such amounts be decreed to be a first lien on the land; that the land be sold and these debts be paid, and the remainder be divided among the tenants in common; and for general relief and for process.</p> <p>The defendants filed their respective answers. At the February term, 1913, of the court a consent decree was taken, wherein it was adjudged that the plaintiff and defendants were tenants in common ; that each owned' a one-third undivided interest in the land, subject to the deed to secure a debt in favor of the British and American Mortgage Company; and that, upon a fair and full accounting of all the matters and things set out in the petition and-answer, B. E. Goolsby owes R. C. Goolsby the sum of $1000, and his undivided interest is declared to.be subject to that sum, and a' lien is created upon his interest in favor of R. C. Goolsby for this amount; that B. E. Goolsby is entitled to one third of the rents on hand from the crop of 1912, after deducting expenses, and C. J. Goolsby is directed to pay to R. 0. Goolsby one third of the rents of 1912 as a credit upon the $1000 decreed to be due by B. E. Goolsby to R. C. Goolsby; that the cost of the proceeding be paid equally by the parties, and that after December 1, Í913, if not sooner paid, RJ C. Goolsby shall have execution for the sum of $1000, less the credit for one third of the rents for the year 1912. B. E. Goolsby is decreed to owe to C. J. Goolsby $1750, and this amount is declared to be a lien on B. E. Goolsby’s one-third undivided interest in the land. It is further decreed that the land be sold for $25 cash per acre as the minimum price; and in the event' the other tenants in common do not desire to sell for that amount per acre as a minimum, then it shall be the duty of the other ten-' ants to pay B. E. Goolsby such amount as the minimum price per acre, upon his conveying his one-third interest to the other tenants in common. Subsequently to the taking of this decree, C. J. Goolsby conveyed his one-third undivided interest to E. C. Goolsby, and at the February term, 1914, a decree was taken for a partition of the land in kind, and commissioners were appointed to make and assign a two-thirds interest to C. J. Goolsby and a one-third interest to B.' E. Goolsby. It was further provided that the lien of the British and American Mortgage Company and of C. J. Goolsby, as provided in the original decree, attached to that portion of the land divided in kind and allotted to B. E. Goolsby, and that the execution in favor of C. J. Goolsby against the lot assigned to B. E. Goolsby be issued for the amount referred to in' the former decree. Subsequently B. E. Goolsby conveyed his interest to C. J. Goolsby, and entered into an agreement reciting that there is now no necessity for the partition, and only a question of rents remains between the parties; that B. E. Goolsby contends that 0. J. Goolsby should pay rents on that portion of the land described in the petition which was cultivated by C. J. Goolsby and known as his farm, and C. J. Goolsby contends that under the facts and conditions existing he should not be required to pay rents on that portion of the farm. It was agreed that this controversy should be submitted to the presiding judge without a jury. On this issue the judge decreed that the plaintiff was entitled to recover a certain amount against C. J. Goolsby. A motion for new trial was made by the defendants, which was overruled, and they excepted.</p>

<p>Ejectment. Before Judge Thomas. Berrien superior court. March 22, 1916.</p>

<p>Motion to set aside judgment, etc. Before Judge Cox. Decatur superior court. July 31, 1916.</p>

<p>Injunction. Before Judge Kent. Laurens superior court. January 24, 1917.</p>

<p>Injunction. Before Judge Kent. Laurens superior court. January 24, 1917.</p>

<p>1. Under the interpretation placed upon the act of Congress, approved June 29, 1906, amending § 20 of the interstate-commerce act, commonly called the Carmack amendment, where a bill of lading is issued by a railroad company for an interstate shipment over several connecting lines of railroad, the remedy, under that statute, of the holder of the bill of lading, for damages caused by delay in transporting the goods, is not exclusively against the initial carrier, but extends to all the connecting carriers over the lines of which the goods are transported. The liability is that imposed by the act, as measured by the original contract of shipment so far as it is valid under the act.</p> <p>2. The Federal statute supersedes the statute of this State (Civil Code § 2752), in so far as it conflicts with the Federal statute and applies to interstate- shipments.</p>

Interpleader. Before Judge Mathews. Bibb superior court. March 16, 1916. - The American National Insurance Company brought an action against Sarah Threatt, W. F. Boddie, and Julius Wright, and alleged substantially as follows: On January 14, 1914, Willie Threatt applied for, and petitioner issued to him, a policy of insurance for the principal sum of $320.

<p>1. As a general rule, a specific devise of lands carries with it to the devisees the income, profits, or increase of the specific legacy from the date of the testator’s death.</p> <p>2. The trial court erred in holding that the rents of the land devised went to and belonged to the estate of the testator.</p>

<p>Complaint for land. Before Judge Brand. Banks superior court. June 21, 1916.</p>

<p>Intervention. Before Judge Freeman. Troup superior court. September 16, 1916.</p> <p>At the instance of the State of Georgia a receiver was appointed for the Bank of West Point. The United States National Bank of Omaha, Nebraska, filed an intervention to the proceedings in the superior court, in which it sought the payment of a draft entrusted to the Bank of West Point for collection. By agreement of the parties the case_ was heard by the court without the intervention of a jury. The court held that the intervenor was a common creditor, and was not entitled- to any preference or priority over other creditors. The intervenor excepted. The material facts as deduced from the evidence were as follows: The intervenor sent to the Bank of West Point, for collection, a draft for $922.45 on the West Point Wholesale Grocery Company. The Bank of West Point collected the draft on January 12, 1916, receiving a check, drawn by the West Point Wholesale Grocery Company on the Bank of West Point, in settlement of the draft. The check was charged to the general checking account of the West Point Wholesale Grocery Company, and the Bank of West Point issued its check on the Hanover National Bank and mailed it to the intervenor. No cash was paid on the draft by the-drawee. After the payment of the draft the Bank of West Point continued to do a general banking business until the close of business on January 18, 1916. The transaction was regular and in accordance with the usual customs of banking business. Payment of the draft was stopped, on January 18, 1916, by the State bank examiner in charge of the Bank of West Point; and payment was refused by the Hanover National Bank. The cash on hand in the Bank of West Point was as follows on the days stated: January 11, 1916, $11,581.88; January 12, $10,667.97; January 13, $8,750.18; January 14, $8,004.92; January 15, $5,808.37; January 17, $6,742.28; January 18, $5,-023.49.</p>

Equitable petition. Before Judge Littlejohn. Stewart superior court. June 26, 1916. Mrs. M. L. Johnson' filed a petition to enjoin the Bank of Eufaula from exercising a power of sale in a mortgage given'by her to the bank, on the ground that the debt secured thereby was that of her husband and her obligation was that of surety, and was void because of the statute which prohibits a married woman from becoming directly or indirectly surety for her husband.

Equitable petition. Before Judge Cox. Grady superior court. March 6, 1916. E. M. Mills filed a petition against the Boyd Lumber Company and L. A. Boyd, alleging that he was the owner of certain timber which he sold to L. A. Boyd. The sale was negotiated by E. L. Lester as agent for Boyd.

Equitable petition. Before Judge Cox. Worth superior court. April 24, 1916. I. C. Touchstone was the transferee, from W. H. Bennett, of a note and a mortgage upon realty given to secure the same, dated September 3, 1912. By a mutual mistake of Bennett, the mortgagee, and Walter Ford, the mortgagor, a piece of property different from that intended to be mortgaged was described in the instrument.

<p>Three individuals who were officers in the Bank of S. applied to the Bank of T. for a loan on notes signed by them as individuals, payable to the Bank of T., with the request that the proceeds of the loan be placed to the credit of the Bank of S. The loan was made on these terms, and notes as.above stated were taken, and the money representing the proceeds thereof was placed to the credit of the Bank of S. Subsequently the Bank of S. became insolvent, and its assets were administered through a receivership. The Bank of T. filed an intervention, claiming that the Bank of S. was liable on the notes given to it by its officers as individuals. Held, that the Bank of S.' was not liable under these circumstances, and it was erroneous to refuse to dismiss the intervention.</p>

<p>. Ejectment. Before Judge Thomas. Berrien superior court. June 26, 1916.</p>

<p>Ejectment. Before Judge Thomas. Berrien superior court. September 23, 1916.</p>

<p>Equitable petition. Before Judge Smith. Campbell superior court. February 9, 1916.</p>

<p>Complaint. Before Judge Smith. DeKalb superior court. February 9, 1916.</p>

<p>Questions certified by Court of Appeals (Case No. 7707).</p>

<p>Appeal. Before Judge Smith. Campbell superior court. May 1, 1916.</p>

<p>Section 18 of the act approved November 18, 1915 (Georgia Laws, 1915, Extraordinary Session, pp. 90, 101), prescribing the size of bottles or receptacles in which prohibited liquors must be contained, etc., applies not only to liquors brought into the State under the provisions of the act, but also to.“liquors theretofore or otherwise brought into the State.”</p>

<p>Appeal. Before Judge Hardeman. Glascock superior court. February 22, 1915.</p>

<p>Complaint. Before Judge Worrill. Miller superior court. July 17, 1916.</p>

<p>Equitable petition. Before Judge Worrill. Early superior court. October 4, 1916.</p>

Partition. Before Judge Cox. Worth superior court. August 14, 1916. The .petition of B. L. Collier and Miss Belle Collier shows as follows : Petitioners are the nephew and niece of E. C. Lippitt, who died, leaving as his only heirs his brother, T. M. Lippitt, and petitioners. T. M. Lippitt administered on his estate.

<p>Complaint for land. Before Judge Graham. Dodge superior court. May 17,1916.</p>

Petition for specific performance. Before Judge Pendleton. Pulton superior court. July 10, 1916.

Petition, for specific performance. Before Judge Searcy. Upson superior court. December 9, 1916.

Injunction and receivership. Before Judge Littlejohn. Macon , superior court. January 3, 1917. George L-. Dwight brought a petition against 0. B. Barfield, praying for the appointment of a receiver and other relief. The court appointed a temporary receiver, and the exception is to that order. The plaintiff alleged: During the year 1915 the defendant, as his cropper, operated a farm, and near the end of that year they renewed their contract for the year 1916.

Indictment for misdemeanor. Before Judge Hill. Eulton superior court. May 18, 1916. C. H. Arthur was indicted for a misdemeanor, under section 4257 of the Code of 1910.

<p>Claim. Before Judge Littlejohn. Lee superior court. February 17, 1916.</p>

<p>County authorities can not lawfully appropriate money in the county treasury to engage the services of attorneys at law for the purpose of resisting, before the legislature or the committees thereof, the passage of a resolution for the submission of a constitutional amendment having 'for its purpose the creation of a new county which would include territory taken from the county so retaining counsel. And where attorneys are so retained, the board of commissioners in charge of the county affairs, seeking the defeat of the proposed constitutional amendment, can not lawfully issue warrants on funds in the county treasury for the payment of attorney’s fees and other expenses incurred, and may be enjoined from so doing, at the suit of a citizen and taxpayer of the county.</p>

<p>Equitable petition. Before Judge Hill. Fulton superior court. July 19, 1916.</p> <p>Morgan Howell brought his petition against George Mathieson ct al., alleging, that on May 16, 1916, petitioner obtained a judgment against Henry Boyd for. a stated sum, upon which execution had issued, upon which nulla bona had been duly entered; that Mathieson, chief of police of Pulton County, had in his possession a quantity of whisky of the value of $900, which belonged to Henry Boyd; that plaintiff had asked Mathieson and one of his deputies to levy the execution on the whisky, which they declined to do, on the ground that under the prohibitory law of the State they could not sell and dispose of the whisky; that the property is in the hands of the chief of police without due process of law; that he is simply holding it as evidence against Henry Boyd in a criminal case in which Boyd is charged with violating the prohibition law of the State; that the whisky could be taken charge of by a receiver appointed by a court of equity, shipped beyond the limits of the State, and there converted into cash, without violating the prohibition law of the State of Georgia. The prayer is, that a receiver be appointed, and that the chief of police be required to turn over to such receiver the whisky to be held until further order of the court. A general demurrer to the petition was sustained, and the plaintiff excepted</p>