Volume 148 — Georgia Reports

Petition for injunction. Before Judge Bell. Fulton superior court. October 31, 1917.

<p>Indictment for murder. Before Judge Mathews. Bibb superior court. June 19, 1917.</p>

<p>Equitable petition. Before Judge Walker. Wilkes superior court. May 8, 1917.'</p>

<p>. Indictment for murder. Before Judge Thomas. Berrien superior court. December 22, 1917.</p>

<p>Petition .for injunction. Before Judge Pendleton. Fulton superior court. May 31, 1917.</p>

<p>Receivership, etc. Before Judge Jones. Hall superior court. July 23, 1917.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. July 7, 1917.</p>

<p>Appeal from probate of will. Before Judge Howard. Chattahoochee superior court. August 11, 1917.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. April 10, 1917.</p>

<p>Equitable petition. Before Judge Thomas. Grady superior court. August 27, 1917.</p>

<p>Equitable petition. Before Judge Meldrim. Chatham superior court. August 21, 1917.</p>

<p>• Equitable petition. Before W. B. Sloan, judge pro hac vice. Habersham superior court. July 16, 1917.</p>

<p>Where a contract of subscription to the capital stock of a corporation does not fix the time for payment of such subscription, nor provide that it is to be paid when called for by the corporation, and the stock has been fully subscribed and the corporation is a going concern, such subscription becomes due and payable at once; and the statute of limitations as to actions on unpaid subscriptions begins to run from their dates. A demurrer to a suit on such contract not under seal, where the suit was begun more than six years from the date of the contract, on the ground that the action was barred by limitation, was properly sustained.</p>

<p>Indictment for murder. Before Judge Bartlett. Polk superior court. September 22, 1917.</p>

<p>1. “Where jurors on their voir dire had so answered the statutory questions as to prima facie qualify themselves as such, the court did not err in refusing to allow counsel for the accused to-make further examination of the jurors.” Lindsay v. State, 138 Ga. 818 (76 S. E. 369. See Duncan v. State, 141 Ga. 4 (80 S. E. 317); Woolf olh v. State, 85 Ga. 69 (9 a), 93 (11 S. E. 814).</p> <p>(a)' Where a juror had qualified on the voir dire, it was not error for the court to refuse to allow him- to answer the further question, propounded by counsel for the accused: “Have you any prejudice or bias on your mind against the plea of insanity?” “A mere prejudice against this defense [insanity], or the setting of it up as a sham, will not disqualify one who can render a verdict in accord with the law and evidence.” 2 Bishop’s New Crim. Proc. (2d ed.) § 918 (3) ; People v. Carpenter, 102 N. Y. 238 (6 N. E. 584) ; Butler v. State, 97 Ind. 378.</p> <p>2. Under the practice in this State of trying the competency of jurors, only the statutory questions can be asked in the first instance. If the juror answers the statutory questions satisfactorily, and is pronounced prima facie' competent, and the parties put him before the court as trior, aliunde evidence of the untruthfulness of his answers must be offered, and it is not competent to propound questions to the juror himself to show his incompeteney. It is within the province of the court to permit, a further examination of the juror himself in rebuttal of the testimony offered to show his incompetency. Nesiit v. State, 43 Ga. 238, 248; Garter v. State, 56 Ga. 463 (3).</p> <p>(a) “At common law a challenge for principal cause was tried by the court on the testimony of the juror to the exclusion of other evidence, and if found true the-juror was incompetent per se. If the challenge was to the favor, as for undue influence and prejudice, the challenge was tried by two triors under the direction of the court, on testimony other than that of the juror; and where the common-law practice prevails, substantially the same distinction is preserved.” 12 Enc.Pl. & Pr. 468. See Turner v. State, 114 Ga. 421, 422, 423 (40 S. E. 308), and cases there cited.</p> <p>(t) After a juror had qualified on the voir dire, he was challenged for cause and put upon the court as a trior. The court, in his province, permitted further examination of the juror. When asked whether his mind was perfectly impartial between the State and the defendant, the juror answered, “I think so.” When asked whether in his present frame of mind he felt that he could be perfectly impartial between the State and the defendant, he answered, “I think so.” Held, that the court did not err in finding him competent. See Gato v. State, '72 Ga. 747 (2); Dumas v. State, 65 Ga. 472; Norton v. State, 137 Ga. 842 (74 S. E. 759).</p> <p>3. In the trial of a capital case it is not erroneous for the trial judge to explain to the jurors the meaning of the voir dire questions. Woolfolh v. State, 85 Ga. 69 (9 c) (11 S. E. 814). In the case at bar it was not erroneous to explain the meaning of the voir dire questions after sueli questions had been propounded to two of the jurors. There is no complaint that the explanation given' was within itself in any respect erroneous.</p> <p>4. Exception is taken to the following charge to the jury: “The plefendairt, on the other hand, through his counsel contends, while he admits that he killed the person alleged to have been killed in that bill of indictment, he contends that he was not criminally responsible, because at ■ that time, at the time of the killing, he claims that he was laboring under delusional insanity. ” The error assigned is that the charge unduly restricted the contention of the defendant, and that he should have been given “the benefit of any form of insanity by the court that relieved him of criminal responsibility.” In his approval of this assignment of error, the court certifies that counsel for the defendant expressly stated to the court before commencing his charge that delusional insanity was the only form of insanity relied on as a defense. “A party can not obtain a reversal for an error which he has invited, as by a request to charge, or by formal admission that a given principle is not involved in the case.” Horton v. State, 120 Ga. 307 (47 S. E. 969); Partee v. State, 19 Ga. App. 752, 756 (92 S. E. 306).</p> <p>(a) Erom an examination of the whole charge it appears that the court charged fully on the defense of general insanity, special dementia, and delusional insanity. Indeed, the charge strictly accords with the principles recognized in Roberts v. State, 3 Ga. 310, and consistently fol-lowed in Danforth v. State, 75 Ga. 614 (58 Am. R. 480), Garr v. State, 96 Ga. 284 (22 S. E. 570), Flanagan v. State, 103 Ga. 619 (30 S. E. 550), Taylor v. State, 105 Ga. 746 (31 S. E. 764), and all subsequent decisions by this court upon the subject of insanity as a defense in criminal prosecutions. The charge given by the court was in almost, if not exactly, the language of the trial court set out at length in the report of Danforth v. State, supra.</p> <p>5. Exception is taken to the following charge to the jury: “The law presumes every man sane until it is made to appear, to the contrary, that he is insane or of unsound mind. And if a man files that plea, the burden is on him to make it appear to the satisfaction of the jury, -it ought to be made to appear to a reasonable certainty, that at the time of the commission of the act, if any, he did not know the nature, and quality of the act, or, if he did know, he did not know the act was wrong.” The error assigned is that the charge placed upon the defendant a greater burden than the law requires; “the court put upon the defendant the burden to make it appear to a reasonable certainty that the accused was insane, when the true rule' is merely that the defendant must show insanity by the preponderance of evidence.” The homicide was admitted. The sole defense was insanity at the time of the commission of the homicide. The defendant offered no evidence whatever; he relied upon his statement alone. The court charged the jury as follows: “If after a full, fair, and honest examination of this evidence in connection with the defendant’s statement, your minds are unsettled, unsatisfied, do not know what the truth about it is, then that is what is called a reasonable doubt in law, and you should give him the benefit of that reasonable doubt and acquit him.” Held, that the criticism of the instruction excepted to is well taken; but under the facts of the case, and in view of the subsequent charge last quoted, and the' whole charge, the error pointed out is not such as to require a reversal.</p> <p>(5. The remaining assignments of error examined, and held not to show _ cause for reversal.</p>

<p>1. Where an indictment alleged that the accused killed a woman by shooting her with “a certain pistol and with a certain rifle,” it was not error to overrule a demurrer based on the ground that the homicide was charged as committed with two different instruments alleged conjunctively, that it is physically impossible to kill a person with a gun and a pistol at the same time, and that one of them alone must have produced the death. Walker gf. State, 141 Ga. 525 (81 S. E. 442), and authorities cited.</p> <p>2. An objection to evidence as a whole is not good if a part of it is not subject to the objection as presented. Park v. State, 126 Ga. 575 (5) (55 S. B. 489), and authorities cited. The court permitted a witness for the State to testify that the accused, seven or eight months previously, “showed me a sign and told me if I would go over there and tell anything on him he would kill me. It was a long time before anything ever happened. He said, if he would do anything and I would be with him and I was to tell it, he would kill me. I was sworn not to tell.” The grounds of objection were, that the testimony was a conclusion, and that “the same was incompetent for the reason that her understanding of the sign and her mental condition could not hind the defendant.” The testimony was not inadmissible for the reasons assigned, but was clearly admissible when taken in connection with other testimony of the same witness, viz.: that she saw the defendant on the day after the homicide, and he repeated to her the substance of the threat, saying if anything happened he would kill her, and if he did not his friends would; also that shortly before the killing, when the accused was beating the deceased, he told the witness that “if anything were to happen I had better not tell, or he would get me, and if not, his friends would.”</p> <p>3. A complaint, in a motion for new trial, of a failure of the court to charge the jury “in reference to manslaughter” can not be ruled on. A valid assignment of error must be complete in itself; and it is essential that such ground of the motion indicate the degree of manslaughter, whether voluntary or involuntary. Smith v. State, 125 Ga. 300 (54 S. E. 124). Compare Burney v. State, 142 Ga. 812 (83 S. E. 937).</p> <p>4. The court did not err in permitting a witness for the State to testify, “I told him, one night when we was on the way to Will’s house, that I thought Alice had been killed; and he said he didn’t believe it,” this being responsive to a question by counsel for the defendant, the only objection being that the testimony was a “voluntary statement” of the witness. Stiles v. State, 57 Ga. 183 (3).</p> <p>5. The motion for new trial complains that the court instructed the jury as follows: “The degree, gentlemen, of conviction that is required to be carried to your minds as to the material allegations made in the bill of indictment is that you are satisfied from the facts of the case, and they have been shown and established beyond a reasonable doubt; and it makes no difference whether that degree of conviction is carried to your minds by direct or positive testimony, or whether it is carried there by circumstantial evidence. If you have that degree of conviction on your minds, then you are authorized to find in accordance with that conviction. If that degree of conviction is not carried to your mind, if these material allegations have not been shown to that extent, then you have a reasonable doubt on your mind of the defendant’s guilt, and it would be your duty to acquit him.” The criticism is that the court erred “in instructing the jury that that degree of conviction in their minds on all material allegations only had to be shown and established by the State ‘beyond a reasonable doubt,’ whereas the true rule of law is that all material facts must be proven not only to the exclusion of every doubt, but it must exclude every other reasonable hypothesis save that of the guilt of the accused.” The charge of the court so excepted to was not error, it appearing that the court instructed the jury fully and fairly on the law in regard to eases depending entirely upon circumstantial evidence. Penal Code, §§ 1010, 1013; MeNaughton v. State, 136 Ga. 612 (71 S. E. 1038).</p> <p>6. Complaint is made that the court refused a request to give in charge the following: “In case of doubt good character should preponderate in favor of innocence, especially where life is involved. If you should be doubtful in your minds as to the guilt of this defendant of the charge preferred, then I charge you, under the foregoing rule of law just given you, that it would be your duty to acquit this defendant.” It was not error to refuse this request. The court had already instructed the jury correctly and fully in regard to evidence of the good character of the accused, informing them that good character, whenever shown, may of itself generate in the minds of the jury a reasonable doubt of the guilt of the accused; which was more favorable to the accused than was the requested instruction in so far as the latter is legal. The defendant in all criminal cases has the right to offer testimony in regard to his good character, and there is no provision by which it shall have any especial effect where life is involved; even though expressions may have been used by text-writers or judges, as a matter of comment upon the subject, indicating the especial value of good character where life is involved. This does not make such expressions appropriate for charge to the jury.</p> <p>7. The evidence, though circumstantial, was sufficient to satisfy the jury that the defendant was guilty of the charge; and the trial judge, who, like the jury, saw the witnesses and heard their testimony, approved the verdict. We can not say the verdict was unauthorized.</p>

Ejectment. Before Judge Tarver. Gordon superior court. June 16, 1917. H. W. Paris as administrator with the will annexed of I. N. Buckner, deceased, brought ejectment against Albert Evans.

Petition for decree of title. Before Judge Park. Jasper superior court. June 30, 1917.

<p>1. Where at the time a quo warranto proceeding was instituted the relator was the lawful incumbent of the office of State fertilizer inspector, and the respondent, though he had been appointed by the commissioner of agriculture and his commission had been issued, was not entitled to the office, yet where .pending the proceeding the commissioner (treating as void a former order removing the relator) proceeded regularly, upon notice and after a hearing, to remove the relator and so ordered; and afterward duly appointed the respondent to the office thus made vacant, the respondent could set up the validity of his appointment as a defense in the quo warranto proceeding.</p> <p>(a) Even if certain evidence the admission of which is excepted to was not admissible under the application of the strict rule, its admission is not a ground for setting aside the final judgment which, under all the facts of the ease, was clearly right and proper.</p> <p>2. While the charge of incompetency, made in the citation by the commissioner of agriculture to the relator was not sufficiently specific as to the nature of the incompetency, nevertheless, as the relator failed to appear and urge an objection to the charge for indefiniteness, the fact that the commissioner proceeded to a hearing and a judgment under the citation as it stood was no ground, at the hearing of the quo warranto proceeding, for holding void the action of the commissioner.</p> <p>3. The relator should not have been taxed with any part of the costs in the case; and direction is given accordingly.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. June 12, 1917.</p>

Equitable petition. Before Judge Thomas. Berrien superior court. July 28, 191')'.

<p>Petition for injunction. Before Judge Kent. Laurens superior court. August 25, 1917.</p>

<p>1. A court can not finally adjudicate a case on demurrer at a hearing for interlocutory injunction before the appearance term of court, though the demurrer may be considered in passing on the question of granting or not granting the injunction. In such case no specific ruling can be made on the merits of a demurrer which sets up a misjoinder of parties, tTones v. Garitón, 146 Ga. 1 (90 S. E. 278).</p> <p>2. Under the facts of this case the petitioners were not entitled to the injunctive relief sought, and the court erred in granting a temporary injunction.</p>

<p>Complaint for land. Before Judge Walker. Wilkes superior court. May 8, 1917.</p>

<p>Equitable petition. Before Judge Higbsmith. Camden superior court. June 6, 1917.</p>

<p>Ejectment. Before Judge Littlejohn. Webster superior court. June 12, 1917.</p>

<p>Equitable petition. Before Judge Tarver. Whitfield superior court. July 3, 1917.</p>

<p>1. Upon the trial of a cause in equity the judge may of his own motion propound questions to the jury covering the issues of fact in the case and have the jury make a special verdict in response to the questions. The questions submitted in this case apparently cover the controlling issue, under the pleadings and stipulations of counsel made during the trial.</p> <p>2. Evidence to authorize a decree reforming a written instrument must be clear, unequivocal, and decisive. But in the present case, in view of the single issue that was submitted in conformity with the stipulations made by counsel, the court did not err, as against the defendant (plaintiff in error), in charging that the plaintiffs were required to establish their case by a preponderance of the evidence.</p>

<p>Motion for new trial. Before Judge Nnnnally (of the city court). Floyd superior court. September 17, 1917.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. September 18, 1917.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. October 25, 1917.</p>

<p>Equitable petition. Before Judge Morris. Gilmer superior court. October 30, 1917.</p>

<p>•Equitable petition. Before Judge Pendleton. Fulton superior court. June 20, 1917.</p>

<p>Certiorari; from Court of Appeals (20 Ga. App. 668).</p>

<p>Alimony. Before Judge Highsmith. Wayne superior court. June 23, 1917.</p>

<p>Complaint for land. Before Judge Mathews. Crawford superior court. June 28, 1917.</p>

<p>Interpleader. Before Judge Sheppard. Evans superior court. August 6, 1917.</p>

<p>Equitable petition. Before Judge West (of the city court of Athens). Clarke superior court. August 2, 1917.</p>

<p>Equitable petition. Before Judge Worrill. Decatur superior court. August 18, 1917.</p>

<p>Action for specific performance. Before Judge Tarver. Murray superior court. August 17, 1917.</p> <p>Mrs. B. N. Cobb instituted an action in 1911, against her father, Webster B. Coffey, to compel the execution of a deed to 43 acres of land. It was alleged, that “some four years ago” the defendant, owning described land, decided to divide it among his six children, and thereupon executed deeds to two of them, after which there remained 172 acres. He told the other four children, among whom was petitioner, that he would divide that between them, and pointed “about where he thought” their respective parcels would be located. Subsequently in the fall of 1910 he staked off the respective parcels to the four children above mentioned, and the part allotted to plaintiff was 43 acres, being the land involved in this suit. Belying upon this gift, petitioner went into possession, and “built a dwelling-house thereon and made valuable improvements,” alleged by amendment to consist of fences around the house and garden of the value of $25; clearing one acre of land, $8; building a barn $50. On the. trial the plaintiff recovered a verdict, and the judgment denying a motion for new trial was reversed on the ground that there was no evidence of a gift, and that the court committed error in the charge to the jury in not restricting the plaintiff’s right to recovery upon the basis of a contract of sale. Coffey V. Cobb, 140 Ga. 661 (79 S. E. 568). After the return of the remittitur the plaintiff filed an amendment to her petition, which so changed it as to make it allege that her contract with her father was one of landlord and ¡tenant, and that the improvements were placed upon the property by her in pursuance of that contract. A demurrer to the petition as amended was overruled, and the judgment of the trial court was reversed. Coffey V. Cobb, 143 Ga. 539 (85 S. E. 693). On a subsequent trial of the case the defendant again amended the petition by alleging that she contracted for the property in 1907, that it was agreed that she should take possession of the land and make improvements as she might desire, and that she should have all of the land and improvements, except that, of the crops which might be grown on the land, one fourth of the cotton and one third of the corn “were to be paid” in the fall of each year to defendant as long as he lived, and, “if defendant in his lifetime should demand it, plaintiff agreed to pay $125 in cash, and at the death of the defendant “the fee-simple title to all of said land and improvements thereon to vest in” plaintiff, and under this contract petitioner entered possession and made the improvements as theretofore set out in the original petition as amended, and continued to pay the parts of the crops as contracted until the fall of 1910, when the contract was changed so that, in lieu of part of crops, petitioner should pay $50 in cash each year. Petitioner has made all payments stipulated in the contract of 1910, and now stands ready to pay the additional sum of $125 should defendant demand it. Other allegations were, that at the time of making the contract in 1907 the defendant was induced thereto partly on account of his love and affection for plaintiff, and he desired to make a plan whereby plaintiff could have the property as her own for a home, and at the same time he could have an income out of the property during his life. A demurrer was filed to the petition as amended, on the grounds, among others: (a) that the petition as amended was not materially different from what it was when the amendment setting up the contract of tenancy was made, which the Supreme Court held was insufficient to set forth a cause of action; (b) that the petition as amended did not allege a cause of action; (c) it is not alleged that any of the improvements were made after the year 1910, nor were the improvements described or their value alleged. The demurrer was overruled. On exception the judgment was reversed. Coffey v. Cobb, 146 Ga. 689 (92 S. E. 57). Subsequently the plaintiff filed two amendments to her petition, which so far as material alleged: “That she made permanent improvements on the land sued for, before filing her original petition, and subsequently to the time when the relation of landlord and tenant between herself and W. R. Coffey terminated, and after the relation of vendee and vendor existed, and while she had possession as such, and after agreement set out in the original petition and amendments thereto of 1910, and that said permanent improvements so made were as follows, to wit: Built brick chimney to dwelling where plaintiff lives, at a cost of $25.00, finishing front room of dwelling $20.00, ceiling and completing one room $25.00, painting dwelling $20.00, building barn-shed $15.00, clearing and cleaning up six acres of land $25.00, and building well-shed and curbing same $10.00, making a total of $140.00.” A demurrer to this amendment was as follows: “(1) Because it is not alleged in the amendment when the relation of vendee and vendor commenced. (2) Because it is not alleged when the relation of landlord and tenant ceased—when plaintiff ceased to pay rent, that is the dates. (3) Because the alleged improvements are not alleged. The dates of these alleged improvements should be given as near as possible, so as to put this defendant on notice in order to meet this defense.” The court sustained this demurrer, and dismissed the action. The bill of exceptions assigns error on this ruling.</p>

<p>Equitable petition. Before Judge Littlejohn. Lee superior court. August 1, 1917.</p>

<p>Validation of county bonds. Before Judge Summerall. Bacon superior court. July 27, 1917.</p> <p>The solicitor-general of the Waycross judicial circuit, in the name of the State of Georgia, filed a petition against the County of Bacon, in accordance with the provisions of § 446 of the Code, prescribing the duties of the solicitor-general in proceedings for the validation of bonds; and a rule nisi having been granted thereon, calling upon the County of Bacon by its proper officers to show cause at the time and place specified in the order why the prayers of the petition should not be granted, the County of Bacon through its attorney at law made answer to the application, and filed the answer, with various exhibits attached thereto, including the certificate of the ordinary of the county, showing the total number of qualified voters who had registered and qualified to vote in the election creating the bonded indebtedness in question. At the time and place fixed in the rule nisi for the hearing, John L. Stewart and certain other citizens and taxpayers of Bacon County presented and had filed their intervention and prayer to be made parties defendant in the case, in opposition to the validation of the bonds mentioned in the petition for validation; and the prayer of Stewart and others to be allowed to intervene was granted. The intervenors filed their demurrer to the petition, and excepted to the judgment overruling their demurrer. The judge thereupon rendered judgment and passed an order validating the bonds in question, and this was excepted to by intervenors,</p>

<p>The exceptions to the judgment of the court allowing temporary alimony and attorney’s fees raise no other question than that as to whether the evidence authorized the granting of alimony and whether the amount awarded was excessive; and from the evidence in the ease it is not made to . appear that the court abused its discretion in allowing the . defendant, the wife of the libellant, the amount of temporary alimony and attorney’s fees which was actually awarded.</p>

<p>Injunction. Before Judge Tarver. Bartow superior court. September 15, 1917.</p>

<p>Injunction. Before Judge Highsmith. Camden superior court. October 3, 1917.</p>

<p>Complaint for land. Before Judge Terrell. Troup superior court. September 27, 1917.</p>

<p>Claim. Before Judge Harrell. Grady superior court. September 4, 1917.</p>

<p>Equitable petition. Before Judge (rraham. Telfair superior court. October 9, 1917.</p> <p>Mrs. Callie McLean hied her petition in equity, in Telfair superior court, against E. R. Mann and Douglas McArthur. She alleged that defendants were in possession of a deed to lot of land No. 85 in the seventh district of said county, said deed purporting to have been executed by the petitioner, who was formerly Mrs. C. J. McDuffie. She alleged that she was in possession of the land, and that the deed was a forgery. She claimed title to the land under a deed executed by Mrs. Victoria McArthur as the administratrix of Walter T. McArthur, deceased. She prayed for the cancellation of the deed. The defendants denied that the deed was a forgery, and alleged that the same was executed and delivered by the petitioner in furtherance of a compromise agreement for the settlement of a dispute with reference to the ownership of two lots of land, title to which was claimed both by the former husband of the plaintiff and by the administratrix of Walter T. McArthur, deceased. By the terms of this agreement title to both of said lots was to be made to plaintiff’s husband, and he in turn was to make title to lot 85 to Douglas McArthur. The agreement was carried out, but at the direction of plaintiff’s former husband the title to both of the lots was made to the plaintiff; whereupon the plaintiff executed and delivered a deed to Douglas McArthur conveying to him lot 85. Douglas McArthur conveyed the lot to the defendant Mann. It was contended by the defendants that the plaintiff was estopped to assert title to the land, and that it was inequitable for the plaintiff to have and to hold the other lot to which she, in the right of her former husband, acquired quiet title, and repudiate her deed to the defendant McArthur to the lot in question. The settlement of the dispute between plaintiff’s husband and the estate of Walter T. McArthur was alleged to be the sole consideration of the deed by the administratrix of Walter T. McArthur’s estate to the plaintiff. The evidence for the defendants tended to support their contentions. There was, a verdict and judgment in favor of the defendants. A motion by the plaintiff for new trial, was overruled, and she excepted.</p>

<p>■ Indictment for misdemeanor. Before Judge Nunnally. City court of Floyd county. September 14, 1917.</p>

<p>Injunction. Before Judge Littlejohn. Lee superior court. November 14, 1917.</p>

<p>Action for damages. Before Judge Wright. Whitfield superior court. November 10, 1917.</p>

Equitable petition. Before Judge Worrill. Early superior court. June 25, 1917.

<p>Where a vendor executed and delivered his bond conditioned to make to his vendee a good and sufficient title to certain land upon the payment of the balance of the purchase-money, and the vendee for a valuable consideration transferred the bond, together with his interest in the land, to a third person who assumed and agreed to pay the balance of the purchase-money, the vendor, not being a party to the contract, can not in an action at law enforce the promise of the third person. Nevertheless, in such a case, the vendor may maintain an equitable action against the vendee and his transferee, in the county of the latter’s residence, to recover a judgment for the balance of the purchase-money, with a special lien upon the land. A court of equity, in order to grant full and adequate relief, having before it as parties the three persons referred to, may adjust in one suit the rights of all of them. The ruling in Baker v. City National Bank, 94 Ga. 87 (2), 88 (21 S. E. 159) considered and distinguished.</p>

<p>1. The criterion for determining whether an instrument is a deed or a will is, whether it is to take effect immediately upon its execution and delivery, or after the death of the maker. Where an instrument was executed in the form of a fee-simple warranty deed, but' after the description of the land it was recited that the grantor was “to have and control the sale of the land during her natural' life, thence” to the named grantee, such instrument is a deed vesting title immediately in the grantee, and is not testamentary in character.</p> <p>2. Where an instrument of. writing was executed as a deed, was attested by two witnesses one of whom was an officer authorized to witness deeds, purported on its face to have been delivered, and was recorded, this raised a presumption of delivery; but this presumption is not conclusive, and as between the parties to the instrument it may be rebutted.</p> <p>3. In a suit to recover land and to cancel a deed as a cloud upon the plaintiff’s title, the burden is upon the plaintiff to make out such case as entitles him to the relief sought; and he failing to carry such burden, it is not error to award a nonsuit.</p>

Mandamus. Before Judge Worrill. Early superior court. September 7, 1917.

<p>Indictment for murder. Before Judge Summerall. Ware superior' court. November 3, 1917.</p>

<p>Ejectment. Before Judge Hardeman. Washington superior court. October 4, 1917. ' ■</p>

<p>Injunction. Before Judge Mathews. Bibb superior court. November 26, 1917.</p>

Equitable petition. Before Judge Hammond. Richmond superior court. September 22, 1917.

<p>Eeceivership, etc. Before Judge Bartlett. Polk superior court. August 38, 1917.</p>

<p>Injunction and receivership. Before Judge Eve. Tift superior court. December 4, 1917.</p>

<p>Equitable petition. Before Judge Worrill. Early superior court. January 5, 1918.</p>

<p>Indictment for murder. Before Judge Howard. Marion superior court. , February 9, 1918.</p>

<p>Writ of error; from city court of Sylvester.</p>

<p>Temporary alimony. Before Judge Eve. Irwin superior court. February 18, 1918.</p>

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

<p>Temporary alimony, etc. Before Judge Highsmith. Camden superior court. February 14, 1918.</p>

<p>Injunction. Before Judge Thomas. Brooks superior court. August 28, 1917.</p>

<p>Petition for injunction. Before Judge Park. Baldwin superior court. October 26, 1917.</p> <p>Butts Brothers instituted an action against T. H. Ennis, to enj'oin him from interfering with their use of certain gasoline-filling tanks. The plaintiffs claimed a right to the use of the tanks under a contract with H. K. Brown, an alleged tenant of Mrs. Annie H. McCombs. The tanks were used in connection with a garage which Mrs. McCombs had leased to H. K. Brown. One of them was situated within the building, and the other two on the sidewalk in front of the garage. After Brown had leased the garage and while conducting the business therein, he contracted with the plaintiffs whereby he granted them the right to use the tanks in carrying on an independent business of supplying gasoline to their customers. So far as material to be stated, the lease from Mrs. McCombs to Brown was for one year and provided: “that, for and in consideration of the mutual promises and agreements herein recited, the parties do hereto contract as follows: the party of the first part does hereby rent, lease, and hire unto the party of the second part, a certain house and lot . . known as the B. H. McCombs garage. The party of the first part hires to the party of the second part all of the machinery, fixtures, and tools contained in the building - on the land herein leased. Said machinery, fixtures, and tools consist in the main of lathe, drill, . . oil and gasoline tanks. . . But it is the intention of the party of the first part to hire to the party of the second part all the machinery, tools, and fixtures used in and about the business recently conducted by the B. H. McCombs Auto Co., but it is understood that J. L. Black has one half interest in certain parts of the machinery hired, and it is not intended that any interest of the said Black in said machinery shall pass under this contract. The term for which this lease and contract of hiring shall run begins this day and ends on the 7th day of July, 1918. The party of the first part agrees to keep the building on the land leased in repair. The party of the second part, in consideration of the agreements of the party of the first part, agrees to pay to the party of the first part the sum of one hundred and fifty dollars ($150.00) per month for the rent of said property, which rental shall fall due on the 7th of each month, beginning August, 1917; and the party of the second part has executed to the party of the first part his promissory notes for said rental. The party of the second part further agrees that he will keep the personal property hired him under this contract in good repair,,so as to return the same at the expiration of the lease and term of hiring in as good condition as when received, ordinary wear excepted.” The contract between Brown and the plaintiffs is not copied in the record; but .it was alleged in the petition that the plaintiffs under the terms of the contract were to pay Brown a stated sum per month, .in consideration of which they “were to have the exclusive right of using said gasoline tanks for the purpose of storing therein gasoline manufactured by the Gulf Refining Co., and selling said gasoline to various customers. . . The said H. K. Brown agreed not to sell any gasoline at said garage, but your petitioners to have the exclusive right to sell gasoline at said garage from said tanks.” While plaintiffs were engaged in business under their contract with Brown, Mrs. McCombs and Brown canceled their contract above mentioned; and Mrs. McCombs entered into a contract with T. H. Ennis, similar to the canceled contract theretofore made with Brown, without in any manner recognizing the right of the plaintiffs to use the tanks under their contract with Brown. The contract with Ennis was made on October 8, 1917, and the plaintiffs continued their business without objection upon the part of Ennis until October 15, 1917, when Ennis informed them that they could no longer use the tanks. It was alleged in the petition that Ennis was insolvent, and that he had leased the property directly from Brown with notice of the plaintiffs’ prior contract with Brown, and that Mrs. McCombs had recognized and assented to plaintiffs’ contract with Brown; but upon the interlocutory hearing the evidence indicated that Ennis, instead of holding under Brown, claimed directly under a lease from Mrs. McCombs. There was no evidence as to his insolvency, and the evidence was conflicting on the question of notice to Mrs. McCombs of a contract between Brown and plaintiffs and her assent to the use of the tanks by the plaintiffs under that contract. The judge refused the interlocutory injunction, and the plaintiffs excepted.</p>

<p>Partition. Before Judge Morris. Pickens superior court. November 3, 1917.</p>

<p>Ejectment. Before Judge Hodges. Elbert superior court. October 8, 1917.</p>

<p>Equitable petition. Before Judge Bell. Eulton superior court. October 31, 1917.</p>

<p>Libel for divorce. Before Judge Tarver. 'Whitfield superior court. October term, 1917.</p>

Equitable petition. Before Judge Meldrim. Chatham superior court. November 26, 1917. S. M- Apperson and A. H. Henderson filed an equitable petition against the Mutual Fertilizer Company. Briefly stated, the material facts disclosed by the petition are as follows: The fertilizer company sued Apperson in the city court of Ashburn, and garnished Henderson.

<p>Equitable petition. Before Judge Summerall. Clinch superior court. November 3, 1917.</p>

<p>Ejectment. Before Judge Thomas. Colquitt superior court. October 29, 1917.</p> <p>S. T. Hendrix, as one of the heirs at law of S. G.-Turner, deceased, filed suit in ejectment against P. C. Causey for described land. The evidence showed that the deceased died seized and possessed of the land in question, and that the plaintiff was one of the children of the deceased. The defendant offered an equitable-amendment alleging, that the land was set apart by the ordinary as a year’s support for the widow of the deceased and her minor children, one of the children being the plaintiff in this case; that the land was sold by the widow for $300; and that the proceeds of such sale were used by the widow, as head of the family, for the support of herself and her minor children, one of whom was the plaintiff. The plaintiff interposed a d'emurrer to this amendment, which was overruled. The defendant showed a regular chain of title into himself from the widow of S. G. Turner. To sustain the equitable plea the 'defendant offered in evidence the application of the widow for year’s support; the order of the ordinary appointing commissioners with instructions to set apart as year’s support a sum sufficient to support and maintain the widow and children for the space of twelve months, and if upon a just appraisement of the estate the same did not exceed $500, then the whole estate to he set apart; the return of the appraisers setting apart the whole' estate, real and personal; and the order of the ordinary approving the return of the commissioners and ordering the same to be admitted to record as the judgment of the court. All of this evidence was objected to by the plaintiff, on the ground that the records showed on their face that there was. no publication of notice as required by law once a week for four weeks, and that four weeks did not elapse between the application for year’s support and the judgment therefor, and that the judgment of the ordinary was therefore void, the result of which was a failure to legally set aside the year’s support. . The court overruled the objection and admitted the evidence. The evidence being closed, the court directed a verdict for the defendant. The plaintiff excepted to the overruling of the demurrer, the admission of the evidence above described, and the direction of the verdict.</p>

Accusation of misdemeanor. Before Judge Krauss. City court of Brunswick. March 23, 1918. , Peter Joseph was tried and convicted in the city court of Brunswick. He moved for a new trial. The new trial was refused, and he brought his case to the Court of Appeals of Georgia, and three Judges of the Court of Appeals, sitting as division No. 2 thereof, affirmed the judgment of the city court denying the motion for new trial. 21 Ga. App. 496 (94 S. E. 626).

<p>Petition for injunction. Before Judge Morris. Gilmer superior court. July 21, 1917.</p>

Equitable petition. Before Judge Park. Morgan superior court. September 10, 1917. Walker S. Reid and others, as heirs at law of Mrs. Mary P. Lawson, brought an equitable petition against P. W. Walton Jr., and Mrs. Susan R. Walton as the administratrix of the estate of Mrs. Mary F. Lawson^ and alleged substantially as follows: The plaintiffs are the heirs at law oí Mrs. Mary F. Lawson, who was the wife of Judge Thomas G. Lawson.

<p>Complaint for land. Before Judge Tarver. Whitfield superior court. July 14, 1917.</p>

<p>1. The Savannah River Terminals Company is a railroad company under the laws of this State, and has the right of eminent domain. As a railroad, it has authority to cross the tracks of other railroads, or to join with the tracks of other railroads at any point in its route, upon the conditions laid down in the Code of 1910, § 2585, par. 6 (Acts 1892, p. 43).</p> <p>2. The provision just cited of the general railroad incorporation act of 1892, which confers upon a chartered railroad company the power “to cross, intersect, or join, or unite its railroads with any railroad heretofore or hereafter to be constructed, at any point in its route,” upon conditions stated, was not repealed by the railroad-commission act of 1908 (Acts 1908, p. 68, Civil Code of 1910, § 2664), which confers upon the railroad commission the “power and authority, when in its judgment practicable and to the interest of the public, to order and compel the making and operation of physical connection between lines of railroad crossing or intersecting each other, or entering the same incorporated town or city in this State.”</p> <p>3. The right of a railroad company to join its tracks with the tracks of another railroad company is not absolute in all circumstances and without qualification. Where a terminals company, operating within the limits of a single city, has two connections with the main line of another railroad entering that city (one a crossing and the other a direct switch connection) within the distance of a city block, and the terminals company seeks, under the right of eminent domain, to make an additional connection with the main-line track of the other railroad company at a point within the length of a city block from the present switch connection, and, in order to do so, finds it necessary to cross two spur-tracks of the railroad company leading from its main line, a court of equity will inquire whether a reasonable necessity exists for the additional connection, and whether the additional connection, if made, will materially interfere with the railroad company in the discharge of its public duties and in the free exercise of its franchises.</p> <p>4. Under the pleadings and evidence in this case, the judge of the superior court did not abuse his discretion in granting the interlocutory injunction.</p>

<p>Complaint for land. Before Judge Eve. Worth superior court. September 12, 1917.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. October 20, 1917.</p>

<p>Intervention. Before Judge Bell. Fulton superior court. November 19, 1917.</p>

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

<p>Equitable petition. Before Judge Pendleton. Pulton superior court. November 30, 1917.</p>

<p>Intervention'. Before J. C. Newsome, judge pro hac vice. Glascock superior court. November 19, 1917.</p>

<p>Equitable petition. Before Judge Hardeman. Screven superior court. December 12, 1917.</p>

<p>Claim. Before Judge Wright. Eloyd superior court. July 25, 1917.</p> <p>In a suit brought in the superior court of Eloyd county B. H. Moore obtained a verdict against Watters on October 31, 1911, and had judgment entered' on November 1, 1911. On November 29, 1911, Watters filed a motion for a new trial, which motion was pending until September 28, 1914, and was then dismissed by the court for want of prosecution. Moore had execution issued on October 8, 1914, and this execution was recorded on the general execution docket of Eloyd county on the same day. On September 9, 1912, Watters executed and delivered to the American Bank & Trust Company (now the State Bank of Borne) his deed to secure a debt, conveying certain land, which deed was filed for record on January 4, 1913, and was recorded. The grantee took this deed in good faith and for a past consideration, without notice of the' judgment. Moore caused his -execution to be levied on the land conveyed by Watters to the bank, and the bank filed its claim. The case was submitted to the judge without the intervention of a jury; and he found in favor of the plaintiff in execution. The claimant excepted.</p>

<p>Indictment for murder. Before Judge Howard. Talbot superior court. August 11, 1917.</p>

Questions certified by Court of Appeals (Case No. 8686). The Court of Appeals has certified to the Supreme Court the following questions upon which it desires instructions: 1. “In.the statutory provisions for a hearing and judgment by a justice of the peace, where damages are claimed on account of trespass committed by certain kinds of animals while going at large (Civil Code of 1910, § 2034), was it the intention of the legislature that such cases should be included in the…

<p>Petition for injunction. Before Judge Walker. Warren superior court. September 12, 1917.</p>

<p>Ejectment. Before Judge Thomas. Berrien superior court. October 6, 1917.</p>

<p>Construction of will. Before Judge Kent. Harris superior court. October 8, 1917.</p> <p>A testator devised described realty to Mrs. Addie Mallory “for a home for and during her natural life,” and directed that at her death the property should be sold and the proceeds of sale divided equally between named persons, one of whom was T. L. Thomason. The will further provided that the residue of the estate of the testator be sold, and that from the proceeds of sale stated sums be paid to named persons, and that the “remainder of my said estate” be divided equally between four named persons, one of whom was T. L. Thomason. The will nominated T. L. Thomason as executor, and provided “that he be not required to give bond or to make returns to the ordinary, with specific instructions that he pay all expenses of winding up this estate out of his share bequeathed to him, including probating, advertising, and all expenses that may arise. He, the said T. L. Thomason, is to act as executor in the sale and division of the property of real estate bequeathed to Mrs. Addie Mallory after her death.” The executor Muly qualified, partially administered the estate, and died. An administrator de bonis non cum testamento annexo was appointed. Mrs. Mallory sued the estate for services which, as alleged in defendant’s answer, she “claimed” to have rendered the testator during his lifetime, and recovered judgment for an amount which consumed a large portion of the estate. Attorney’s fees were incurred by the administrator in defending the suit. The administrator also incurred the expense of premiums paid to a bonding company to become surety on his bond, and he earned commissions as allowed under the statute to administrators. The estate being ready for final distribution and settlement, the administrator undertook to charge the items of expense above mentioned, together with all other costs of administration, against the distributive share of T. L. Thomason. The executrix of the will of Thomason brought suit for accounting against the administrator de bonis non cuín testamento annexo. It was contended that under a proper construction of the will the items of expense above mentioned were unanticipated by the testator, and did not fall within the character of expenses intended by the testator to be charged against the-distributive share of the estate devised to Thomason, and should be charged against the entire estate left by the testator, and only the usual and ordinary expenses of administration be charged against the distributive share of Thomason. Upon an agreed statement of facts the case was submitted to the judge without the intervention of a jury. Under the pleadings and the evidence, the premiums paid to the surety company and the attorney’s fees paid by the administrator de bonis non cum testamento annexo and the commissions paid to himself exceeded the distributive share of Thomason; but if those items should be charged against the gross estate of the testator, and only the other items of cost for winding up the testator’s estate be charged against such distributive share, there would be a balance coming to the estate of Thomason. The judge found a sum for the plaintiff on the basis of charging premiums, attorney’s fees, and commissions above mentioned against the testator’s estate in gross and all other expenses of administration against the distributive share of Thomason. The defendant excepted.</p>

<p>Indictment for murder. Before Judge Morris. Gilmer superior court. December 1, 1917.</p>

<p>Beceivership. Before Judge Harrell. Dougherty superior court. October 30, 1917.</p>

<p>1. Where a life-insurance company is adjudged insolvent, the claims existing in behalf of its policyholders are in the nature of damages for a breach of the contract, which occurs at the date of the dissolution of the company.</p> <p>2. In the distribution of the assets of' an insolvent insurance company, the general rule is that all creditors are upon an equal basis; and this rule applies as between all classes of policyholders.</p> <p>(а) There is nothing in the present ease to take it out of the general rule.</p> <p>(б) Holders of policies who are suing for “death claims” are not entitled to priority of payment out of the assets of the insolvent corporation, over living policyholders in the same corporation.</p>

Intervention in equity. Before Judge Bell. Fulton superior court. October 20, 1917. ■On August 28, 1911, the American Life Annuity Association issued a policy upon the life of Mary E. Fuller, for the sum of $5,000. Lula J. Fuller, the beneficiary therein named, was. the daughter of the insured.

<p>Injunction. Before Judge Eve. Irwin superior court. September 12, 1917.</p>

<p>Probate and construction of will. Before Judge Wright. Floyd superior court. November 1, 1917.</p>

<p>Indictment for murder. Before Judge Littlejohn. Macon superior court. December 19, 1917.</p>

<p>Exceptions to auditor’s report. Before Judge Highsmith. Jeff Davis superior court. February 28, 1917.</p>

<p>(a) One exception to the above rule is, that where the Federal court has first acquired possession of the res, or has taken steps equivalent to exercising dominion over it, that court will thereby acquire exclusive jurisdiction of the case.</p> <p>1. The general rule is that the pendency of a prior suit in a district court of the United States is not a bar to a suit in a State Court between, the same parties and for the same cause of action. Consequently, where such a state of facts exists, a plea in abatement to such suit in the State court should not be sustained.</p> <p>2. A ground of a motion for new trial based on newly discovered evidence was incomplete where only one of the officers of the losing party, a corporation, made affidavit that he did not know of the relationship of the juror to the opposite party at the time of the trial; it not appearing that this officer was the only officer of the corporation present at the trial of the ease, and it affirmatively appearing that there were other officers of the company. And this is true although the officer who made the affidavit testified that the other officers of the corporation did not know of the disqualification of the juror.</p> <p>3. Where fraud is the controlling issue on the trial of a case involving the validity of an insurance policy taken out by the insured in his lifetime, and on conflicting evidence the jury finds in favor of the administrator of the deceased, it is not error to overrule a motion for new trial based on the ground that the verdict is not supported by the evidence and is contrary to the evidence.</p>

<p>Equitable petition. Before Judge Searcy. Monroe superior court. March 9, 1917.</p>

Equitable petition. Before Judge Searcy. Monroe superior court. May 19, 1917. Elnora Woodward filed her petition in equity against U. S. Fuller and G. Z. Blalock, and alleged as follows: She is the owner and in possession of 210 acres of land, more or less, consisting of two described tracts; she holds title to one-of the tracts, consisting of 102 acres, under a deed from Robt.

<p>Claim. Before Judge Smith. Bockdale superior court. August 29, 1917.</p>

<p>Equitable petition. Before Judge Thomas. Berrien superior court. September 10, 1916.</p>

<p>1. Where a son bona fide gives to Ms mother an account due Mm by.his father, and with knowledge of the gift and in pursuance thereof the father in good faith executes to the donee a deed to real and personal property on the consideration of the payment of the debt, such executed transaction will constitute a valid transfer of the account and furnish a valuable consideration in support of the deed.' Consequently, in a case involving the transactions just indicated, it was error to charge the jury: “You will consider alone that evidence in this ease which has reference to the -alleged loan of the sum of three hundred and ten dollars by Mrs. Fannie J. Yates to A. P. Yates, the amount she claims to have received from her father’s estate. As I have stated, you will not consider the evidence with regard to the other transaction for the purpose of showing any consideration for the execution of the deed, there not being, as the court holds, sufficient evidence of the transfer of the account claimed to be held by Pressley Yates against the father - to the mother, Mrs. Fannie Yates.”</p>

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

<p>Equitable petition. Before Judge Smith. DeKalb superior court. September 3, 1917.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. November 26, 1917.</p>

<p>The evidence authorized the verdict. The newly discovered evidence is merely cumulative and impeaching, and is not of a character to require the grant of a new trial.</p>

<p>The land of an aged and infirm person legally set apart to him as a homestead under the constitution and laws of this, State is not subject to levy and sale under an execution issued' upon a general judgment - for permanent alimony, rendered subsequently to the setting apart of the homestead.</p>

Complaint for land. Before Judge Eve. Turner superior court. July 5, 1917. J. W. Whiddon and others filed suit in Turner superior court, to recover of E. D. Whiddon lot of land No. 164 in the first district of originally Irwin county, now Turner county, and for mesne profits. The case came on to be tried, and after the introduction of evidence the court directed a verdict for the plaintiffs for the land, submitting to the jury the issue as to the amount of mesne profits.

Petition for mandamus. Before Judge Wright. Walker superior court. July 11, 1917. At the August term, 1915, of the superior court of Walker County, Marvin Hatfield was convicted of a misdemeanor, and was sentenced to serve a term of twelve months in the chain-gang. The defendant made a motion for a new trial, and gave bond. His motion for a new trial was overruled, and he excepted, suing out a writ of error to the Court of Appeals.

<p>Habeas corpus. Before Judge Thomas. Colquitt superior court. March 4, 1918.</p>

<p>Indictment for murder. ' Before Judge Terrell. Carroll superior court. December 3, 1917.</p>

Petition for injunction. Before Judge Eve. Tift superior court. March 2, 1918.

<p>Indictment for murder. Before Judge Hill. Eulton superior court. March 30, 1918.</p>

<p>Though the losing party, on the trial of a special issue as to .the genuineness of a deed offered in evidence on the trial of a petition for the partition of realty, may file a motion for a new trial and except to a judgment denying such motion, that judgment can not be reviewed in this court while the main case is still pending in the court below.</p>

<p>Question certified by Court of Appeals (Case No. 9955).</p>

<p>Action for specific performance. Before Judge Bell. Fulton superior court. November 29, 1917.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. July 6, 1917.</p>

<p>Complaint for land. Before Judge Pendleton. Fulton superior court. June 21, 1917.</p>

<p>Equitable petition. Before Judge Worrill. Decatur superior court. August 21, 1917. (See ante, 99.)</p>

<p>T. Wnere pr'oEaie of ‘a'will is contested for incapacity of the maker, or for fraud or undue influence, it is proper to inquire whether the provisions of the will are just and reasonable and accord with the. state of the testator’s family relations, or the contrary.</p> <p>{a) The source from which the property disposed of by the will came into the decedent’s possession may be shown, as well as the reasonableness of the provisions of the will.</p> <p>2. A judgment will not be reversed because of the admission of evidence irrelevant, at the time of its admission, to any issue in the ease, where at a subsequent stage of the trial the evidence becomes relevant and •material upon a question injected into the case.</p> <p>3. Where probate of a will was contested for incapacity of the maker and for fraud and undue influence, the following charge: “Every person is</p> <p>- entitled to make a will, unless laboring under some disability of the law. This disability arises either from the want of capacity or the want of perfect liberty of action,” was not calculated to confuse and mislead the jury because the maker of the will was shown to be a cripple and unable to walk without assistance.</p> <p>4. Rules of evidence prescribed by the legislature, and contained in the Code of this State, may be given in charge to the jury, where pertinent under the pleadings and facts of the case.</p> <p>(a) There is no . merit in the complaint that a rule of evidence prescribed, by the legislature and a part of the statute ’ law of the State, when given in charge by the court to the jury, invaded the province of the jury.</p> <p>5. The evidence authorized the verdict, and none of the assignments of error require a new trial.</p>

<p>Injunction. Before Judge Summerall. Ware superior court. July 27, 1917.</p>

<p>Petition for injunction. Before Judge Cobb. Jackson superior court. August 18, 1917.</p>

<p>Complaint for land. Before Judge Hardeman. Bullocb superior court. July 24, 1917.</p>

<p>Indictment for murder. Before Judge Bartlett. . Haralson superior court. July 27, 1917.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. October 16, 1917.</p>

<p>Receivership. Before Judge-Summerall. Bacon superior court. September 8, 1917.</p>

<p>Equitable petition. Before Judge Sheppard. Tattnall superior court. September 29, 1917.</p>

<p>Equitable petition. Before Judge Kent. • Laurens superior court. November 1, 1917.</p>

<p>Claim. Before Judge Thomas. Thomas superior court. November 7, 1917.</p>

<p>Questions certified by Court of Appeals (Cases 8601, 8739).</p>

<p>Equitable petition. Before Judge Thomas. Lowndes superior court. December 19, 1917.</p>

<p>Equitable petition. Before. Judge Cobb. Banks superior court. January 5, 1918.</p>

<p>Questions certified by Court of Appeals (Case No. 8305).</p>

<p>Ejectment. Before Judge Wright. Eloyd superior court. July 10, 1917. '</p>

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

<p>Partition. Before Judge Park. Hancock superior court. September 28, 1917.</p>

Equitable petition. Before Judge Hardeman. Candler superior court. November 7, 1917. (See 147 Ga. 50, 92 S. E. 872.)’ Josiah Bird brought ejectment against J. D. Bird, J. A. Wood-ward, and J. A. Woodward as administrator of the estate of Sarah E. Woodward, on November 23, 1914, to recover a certain tract of land in Bulloch county.

Action upon bond. Before Judge Walker. Lincoln superior court. October 23, 1917.

Indictment for murder. Before Judge Eve. Tift superior com January 26, 1918.

<p>Indictment for rape. Before Judge Terrell. Coweta superior court. December 8, 1917.</p>

<p>Indictment for murder. Before Judge Terrell. Spalding superior court. April 87, 1918.</p>

<p>Equitable petition. Before Judge Jones. Hall superior court. May 10, 1918. .</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. July 83, 1917.</p>

<p>Indictment for murder. Before Judge Thomas. Thomas superior court. December 15, 1917.</p>

<p>Equitable petition. Before Judge Hammond. Burke superior court. September 8, 1917.</p>

<p>Writ of error; from Fulton, superior court.</p>

<p>Ejectment. Before Judge Park. Baldwin superior court. February 15, 1918.</p> <p>S. G. Chandler died in 1879, leaving a widow and three children, one of them a minor, and children of a deceased daughter. The widow bad set apart, as a year’s support for the benefit of herself and the minor (Ella Chandler), 60 acres of land belonging to S. G. Chandler. Chandler owned certain other land, and a few minutes prior to his death he executed an instrument, purporting to be-' queatluto his daughter, Anna Medlin, that portion of land upon which she then resided, embracing between three and four acres, the land to revert to his estate in the event she died without heirs. At the time of Chandler’s death, his daughter, Mrs. Medlin, and her husband were living on this four acres; but there was evidence tending to show that soon afterward they moved to the 60-acre tract set apart to Mrs. Chandler and her minor daughter as year’s support, on an oral agreement made by Mrs. Chandler that if they would do so and would take care of her during the rest of her life Mr. Medlin might have her interest in the 60-acre tract under the year’s support. Mrs. Chandler died in 1880, and the minor daughter, the other beneficiary under the year’s support, continued to reside with Mr. and Mrs. Medlin on the 60-acre tract until her marriage to E. A. Butts, the plaintiff below and defendant in error here. Mr. and Mrs. Medlin continued to live on and farm the land until Medlin’s death in 1914. In 1915 Mrs. Medlin executed an instrument for the purpose of conveying 144 acres of land (including both of the tracts above mentioned) to Mrs. S. G. Jackson, the plaintiff in error, who claims title by reason of this conveyance. Ella Chandler, the minor beneficiary under the year’s support, died without children, leaving as her sole heir at law E. A. Butts, her husband, who brought this suit in ejectment for a 5/8 undivided interest in the 60-acre tract, and for a 1/3 undivided interest in the 4-acre tract, and for mesne profits as to both tracts.</p> <p>The defendant offered evidence to the effect that Mrs. Butts during her lifetime sold her interest in the 60-acre tract under the year’s support to Mr. Medlin, and that he had paid her therefor; but the plaintiff offered proof showing that the Medlins had been permitted to remain on the land through charity, and that Mrs. Medlin had repeatedly made statements recognizing the interests of others in the property.</p> <p>A motion for new trial on the general grounds, and upon the ground of error in the admission of certain testimony and in portions of the charge of the court, was overruled, and the defendant excepted.</p>

<p>■ Equitable petition. Before Judge Meldrim. Chatham superior court. August 11, 1917.</p>

<p>Complaint for land. Before Judge Littlejohn. Lee superior court. September 7, 1917.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court.

<p>1. On the trial of one charged with murder, after the fact that a conspiracy to take the life of the deceased has been proved'prima facie, the declarations of any one of the conspirators during the pendency of the criminal project are admissible in evidence against all.</p> <p>(а) Whether a conspiracy is in fact established is a question for the jury, who give the evidence such weight as ’they may see fit under proper instructions.</p> <p>(б) In the present case the fact of the existence of a conspiracy was sufficiently shown to authorize the charge discussed and set forth in the first division of the opinion.</p> <p>(c) “Where inculpatory statements were made by a brother of the defendant in his presence and under circumstances which would warrant the .inference that he heard them but did not deny them, they were admissible in evidence, the question whether they were so heard being left to the jury under proper instructions.”</p> <p>2. Where witnesses for the State on the trial of one charged with murder give evidence strongly tending to establish a conspiracy on the part of the defendant and the other conspirators, and subsequently to the conviction of the defendant on trial such witnesses make declarations under oath to the effect that their former testimony was false, such declarations are not cause for a new trial.</p> <p>3. The following charge of the court was not erroneous for any' reason assigned: “Circumstances satisfactorily proven, which point conclusively to guilt and which are irreconcilable with the innocence of the defendant, or which require explanations by the defendant and may be explained by him if he is innocent, but which are not so explained, may be such as to satisfy a juror.”</p> <p>4. The evidence authorized the verdict, and the court did not err in refusing a new trial.</p>

<p>Appeal from probate of -will. Before Judge Worrill. Quitman superior court. . July 30, 1917.</p>

<p>Equitable petition. Before Judge Walker. Wilkes superior court. June 4, 1917.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. February 2, 1917.</p>

<p>Equitable petition. Before Judge Wright. Floyd superior court. May 29, 1917.</p> <p>The Fulton Auto Supply Company brought a suit in equity against the Eome Motor Car Company, a domestic trading corporation, and A. E. Sullivan. The case made by the petition as amended was, in effect, as follows: The defendants were indebted to the plaintiff $385.23 principal, besides interest, “upon an open account,” a copy of which was attached as an exhibit to the petition. Sullivan, under the name of the Eome Motor Car Company, conducted a business until May 12, 1911. On that date a charter was granted incorporating the Eome Motor Car Company, and it was alleged that “sometime after- said charter was accepted, and [the corporation] began to do business, taking over the business and becoming liable for the indebtedness of said A. E. Sullivan before that- time doing business in the name of said Eome Motor Car Company, and that said Eome Motor Car Company thereupon became indebted to petitioner in the sum of $385.23 principal, as shown, by exhibit A,” attached to the petition. “A. E. Sullivan was the principal, if not the only, owner of stock of said corporation. The corporation “ceased to do a going business on and after December 20, 1911, at which date said A. E. Sullivan in his individual name sold to John E. Jones certain of the assets of said Eome Motor Car Company, conveying to said John B. Jones all rights given by the charter,” and “transferred to the said John E. Jones 'the corporate rights, privileges, and franchises of the said Eome Motor Car Company,” but did not transfer “the stock of said Eome Motor Car Company, as shown by written agreement between said A. E. Sullivan and said John E. Jones,” a copy of which was attached to the petition, and which was as follows: “This agreement entered into between A. E. Sullivan and John E. Jones, that A. E. Sullivan is the owner of all the capital stock of the Eome Motor Car Company, and that the Eome Motor Car Company is the owner of the personal property shown by the exhibit hereto, and that said A. E. Sullivan is authorized to sell the same. Said agreement witness further that said John E. Jones has bought from said A. E. Sullivan all the property shown by said exhibit, at and for the sum of $4092.52, four thousand ninety-two dollars and fifty-two cents, for which said John E. Jones has given his.notes as follows: 1 note for $2500.00 due thirty days after date, 1 note for $796.26 due Feb. 1st, 1912, 1 note for $796.26 due March 1st, 1912. All of said notes bear interest from date at the rate of 8% per annum. It is agreed between the parties hereto that the title to the personal property shown by the exhibit hereto attached is retained in said A. E. Sullivan until the full purchase-money, principal and interest, herein provided for is fully paid. Said A. E. Sullivan agrees to obtain with Jno. E. Jones’ signature renewal of purchase of two new Hudson cars shown in exhibit, which are for direct sale, until same are sold. All rights of the Eome Motor Car Company under its charter are hereby assigned to the said John E. Jones, except that said A. E. Sullivan assumes liability of all other indebtedness of said corporation to date, and retains as his individual property all assets of the corporation not shown by the exhibit. The purchase-price of two Hudson ears is to be a credit on the purchase-money herein provided for. Said John B. Jones extends to the said A. E. Sullivan the privileges, rights, and profits of the Whiting Agency, agreeing to permit Sullivan to store, keep, and work on same in Eome Motor Car Company for a period of twelve months from date of this agreement.” It was alleged that the debt sued'on constituted a liability of the Eome Motor Car Company to the plaintiff, “and that said goods had been sold to said Eome Motor Car Company at the date of the said contract of December 20,1911.” “Said A. E. Sullivan, by his contract, retained all other assets of the corporation as his individual property, and assumed liability for all debts of petitioner.” It was further alleged that Sullivan, by selling the assets to Jone^ as stated, and receiving the purchase-price therefor from Jones, and by taking possession of all the other assets of the corporation, left it without funds to pay its debts, and therefore insolvent; and that in equity, plaintiff being without remedy at law,. Sullivan was liable for the payment of the corporation’s indebtedness to the plaintiff. “And the said A. E. Sullivan received from said corporation more than enough assets to pay all the debts of said corporation, including this debt of petitioner.” Sullivan demurred to the petition, on the grounds that it set forth no cause of action against him either in law or in equity, and that there was a misjoinder of parties defendant, and of causes of action; and specially demurred to each paragraph of the petition referring to the contract between him and Jones, as immaterial and irrelevant, since such contract was “an individual undertaking between the parties signing said contract only, and no other person is entitled to claim any benefit thereunder.” The Eome Motor Car 'Company also demurred to -the petition, on the ground of misjoinder of parties defendant, and of causes of action. Both demurrers were sustained, and the petition was dismissed. The plaintiff thereupon excepted.</p>

<p>Indictment for violating liquor law. Before Judge Smith. Do-Kalb superior court. August 18, 1917.</p>

<p>Indictment for murder. Before Judge Terrell. Coweta superior court. October 17, 1917.</p>

<p>Equitable petition. Before Judge Tarver. Whitfield superior court. . January 2, 1917.</p>

<p>Petition for mandamus. Before Judge Highsmith. Camden superior court. October 29, 1917. (See ante, 110.)</p>

<p>The petition, considered in its entirety, set forth a cause of action against the defendants, and the court did not err in overruling the general demurrer.</p>

<p>A constitutional question not raised in and passed upon by the trial court will not be considered when made for the first time in the appellate court. And where no other assignment of error brings the case within the jurisdiction of tlie Supreme Court, it will be transmitted to the Court of Appeals.</p>

<p>Certiorari; from Court of Appeals (20 Ga. App. 254).</p>

<p>Certiorari; from Court of Appeals (20 Ga. App. 240).</p>

<p>Petition for specific performance. Before Judge Tarver. Murray superior court. August 20, 191?.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. August 24, 1917. E. D. Thomas, as trustee in bankruptcy for S. M. Truitt & Son, a firm composed of S. M, Truitt and Charles L. Truitt, brought his equitable petition against Charles L. Truitt, S. M. Truitt, L. B. Jackson, H. A. Almand, and the Independent Transfer Company.

<p>Equitable petition.’ Before Judge Graham. Pulaski superior court. October 9, 1917.</p>

<p>Petition for injunction. Before Judge Summerall. Ware superior court. November 10, 1917.</p>

<p>1. A discharge in bankruptcy under the act of 1898, as amended, does not affect the lien of a general judgment nor the lien of a mortgage obtained ' more than four months prior, to the filing of the petition in bankruptcy, relatively to property set apart as exempt under the bankrupt’s claim of homestead exemption, although holders of such liens may have proved their claims in bankruptcy.</p> <p>2. Where in a voluntary petition in bankruptcy a claim is made for a statutory homestead exemption of money from the general estate of the bankrupt, a court of bankruptcy lias jurisdiction to order a sale of land upon wbicb liens exist, divested of liens, and to provide that tbe liens shall attach to tbe proceeds of sale. Where a part of the proceeds of such sale is set apart for the bankrupt upon his claim of exemption, liens against which the right of exemption had been waived will follow such frtnd.</p>

<p>Equitable petition. Before Judge Crum. Irwin superior feourt. June 6, 1917.</p>

<p>Equitable petition. Before Judge Thomas. Colquitt superior court. October 30, 1917.</p>

<p>Exceptions to auditor’s report. Before Judge Bell. Eulton superior court. May 24, 1911'.</p>

<p>Exceptions to auditor’s report. Before Judge Bell. Eulton superior court. May 24, 1917.</p>

Equitable petition. Before Judge Meldrim. Chatham superior court. September 15, 1917. This was a suit for specific performance and other equitable relief, and was brought by Mary Ann Spellman against George Gordon, Pearl Gordon, and H. D. D. Twiggs. The last named was made defendant in the capacity of executor of tbe will of Mrs. Mary Graeife.

<p>1. Where on the trial of a person charged with murder the evidence or the prisoner’s statement is sufficient to show mutual combat between the deceased and the accused at the time of the homicide, the judge may properly give in charge to the jury the provisions of the Penal Code, § 73.</p> <p>(а) Mutual combat sufficiently appears where it is shown that there was a mutual intent by the accused and the deceased to fight and one or more blows were struck.</p> <p>(б) The evidence authorized the judge to give in charge to the jury the provisions of the Penal Code, § 73.</p> <p>2. The evidence was sufficient to support the verdict, and there was no error in refusing a new trial.</p>

Equitable petition. Before Judge Reid (of city court of Atlanta). Fulton superior court. October 27, 1917. Justices Hill and Atkinson being disqualified, Judges Thomas and Searcy, of the Southern and Flint Circuits, were designated to sit in their stead.

<p>Indictment for murder. Before Judge Summerall. Coffee supe- . rior court. April 6, 1918.</p>

<p>Indictment for making intoxicating liquor. . Before Judge Mathews. Bibb superior court. February 22, 1918.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. May 2, 1918.</p>

<p>Indictment for misdemeanor. Before Judge Mathews. Bibb superior court. March 23, 1918.</p>

<p>Claim. Before Judge Bartlett. Polk superior court. July 3, 1917.</p>

<p>Injunction. Before Judge Harrell. Decatur superior court. August 2, 191'7.</p>

<p>Injunction. Before Judge Harrell. Decatur superior court. August 21, 1917.</p>

<p>Ejectment, Before Judge Wright. Eloyd superior court. September 1, 1917.</p>

<p>The Court of Appeals certified to the Supreme Court the following questions (in Case No. 8397):</p> <p>“For the year 1913, Meriwether Comity, acting through its commissioners of roads and revenues, levied tax for county purposes of $12.50 per thousand on all property in that county. The order of the commissioners was itemized so as to show the percentage of the tax to be used for the various purposes for which a county is allowed by law to levy tax, and included, among others, the following items: Item No. 10, a levy of $4 per thousand, 'to road fund under the alternative road law;’ and Item No. 11, a levy of $2,335 per thousand, 'to support of chain-gang.’ The plaintiff in error interposed an affidavit of illegality to a fi. fa. issued against it for the collection of item No. 11, of $2,335 per thousand, designated 'to support of chain-gang.’ The affidavit of illegality was submitted to the judge of the superior court upon an agreed statement of facts, from which it appears that the alternative road law was in force in Meriwether County in the year 1913, and that the tax levies No. 10 and No. 11, mentioned above, would raise on the taxable property of the county the gross sums of $15,854.03 and $9,254.79 respectively, whereas the expenditures for that year in maintaining and caring for the-convicts in that county amount-ed to $26,012.94. The agreed statement of facts further indicates that if item No. 11, 'to support of chain-gang,’ were to be considered as a levy for general county purposes, the levies altogether so made would exceed fifty per cent, of the then State tax levy of $5 per thousand.</p> <p>“1. Can a county, after having adopted the alternative road law as embodied in the Civil Code (1910), § 694 et seq., and after having levied the maximum rate of $4 per thousand for the maintenance of such system, levy an additional tax, under the provisions of the act of the General Assembly of September' 19, .1908 (Ga. L. 1908, p. 1119), for the support of a chain-gang to be used upon the public roads, bridges, or other public works of the county ?</p> <p>“2. If the county can levy such a tax for the support of the chain-gang; must that tax and the other levies for county general purposes combined be not greater than fifty per cent, of the State tax rate?”</p>

Equitable petition. Before Judge Pendleton. Pulton superior court. September 15, 1917.

<p>Questions certified by Court of Appeals (Case No. 8695).</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. April 30, 1917.</p> <p>The Louisville and Nashville Eailroad Company filed an equitable petition against the Eailroad Commission of Georgia and others, alleging in substance as follows: The Eoberts Marble Company, a partnership doing business at Ball Ground, Cherokee County, Ga., had theretofore presented to the commission its petition praying for an order directed to the railroad company to construct and operate,'“for the benefit of said marble company,” a spur-traclc leading to the plant of the marble company substantially as provided for in a blue-print sketch attached to the petition. The railroad company filed its answer to the petition with said commission, objecting to the granting of the order, on various grounds, among them, that it would be a discrimination among shippers and was not for the advantage of the public, but would be for the use and advantage of an individual enterprise; that no compensation was offered or would be afforded the respondent as a consideration for the expense thus incurred; that the commission was without power and authority to require respondent to build a spur-track for the sole accommodation, convenience, and use of a private individual, it not being a facility for the public, and for the commission to so order would be taking the property of respondent without due process of law and in violation of specified portions of the State and Federal constitutions. The railroad company expressed a willingness to construct the track according to certain specifications and terms, which it insisted were reasonable. The issues thus, made were heard by the railroad commission, and on the hearing there was evidence that the spur-track, if constructed as prayed for, would be a private spur-track for the m.arbU company, a private enterprise, and for its service, use, and benefit, and not a public siding or track for the service, use, and benefit of' the public; and that the terms proposed by the railroad company for such construction were reasonable. Thereafter the railroad commission passed an order directing the railroad company to construct the spur-track prayed for by the marble company, upon condition that the marble company should pay certain specified costs of construction; that the railroad company should furnish, without charge to the marble company, all necessary rails, spikes, switch-points, bars, and other track materials not specifically mentioned in said order and necessary for the construction of said spur-track; and that the marble company and the railroad company should, within thirty days, notify the commission of their acceptance of the conditions embraced in the order, and within a specified time the marble company should deliver to the railroad company a certified check for the amount required of the marble company under the terms of the order. The marble company complied with the requirement, and notified the commission of its acceptance and that it stood ready to forward its certified check as directed; and the marble company tendered to petitioner its certified check in compliance with the order of the commission, which check petitioner declined to receive. The petitioner alleges that it is not within the power and authority of the railroad commission to make the order above referred to; that said order is illegal and void, and petitioner declined to comply with it, for the reasons stated in its response to the railroad commission and.here restated, and also because it deprived petitioner of the equal protection of the law as provided in the fourteenth amendment to the constitution of the United States; that the order is illegal and void in that it constitutes the taking of private property for private purposes; and that petitioner has no adequate remedy at law. The prayers are: (1) that the order of the railroad commission be decreed to be illegal, invalid, null and void; (2) that the railroad commission and its several members and their successors in office be permanently enjoined from enforcing said order against petitioner, or against its servants, agents, and employees, and from taking any steps towards prosecuting petitioner, or its officers, agents, and employees, on account of-failure or refusal to obey said order; (3) that the secretary of the commission be enjoined from furnishing any certified copy of said order to be used in any proceeding or prosecution in any of the courts of this State against petitioner, its officers, agents, or employees; (4) for an injunction pendente lite; (5) for general relief and process.</p> <p>To this petition the defendants interposed a demurrer on the grounds: (1) that no cause of action is set out in the petition;</p> <p>(3) that under the facts stated the plaintiff is not entitled to any relief, legal or equitable; (3) that the railroad commission, under the Civil Code, § 3664, was authorized to pass said order; and (4) that the order does not deprive the 'petitioner of its property or property right without due process of law. The demurrer was overruled,- and the defendants excepted;</p>

<p>Indictment for subornation of perjwry. Before Judge Hill. Fulton superior court. April 30, 1917.</p>

<p>1. Under section 924 of the Civil Code, every dealer in automobiles is required to pay one tax in each county in which he operates.</p> <p>2. An employee of a dealer in automobiles, working for a salary, is guilty of a misdemeanor, under sections 978 of the Civil Code and 469 of the Penal Code, where he solicits sales for'the dealer in a county where the tax required of the dealer has not been paid, and the dealer has not registered as provided by law.</p>

The Court of Appeals certified (in Case No. 9629) the following questions, the answers to which will be found in the headnotes: “J. 0. Covington, an employee of the Western & Atlantic Bail-road, signed the following paper: ‘$62.00.

Accusation of misdemeanor. Before Judge W. H. Hammond. City court of Thomasville. January 8, 1918.

<p>Claim. Before Judge Worrill. Miller superior court. January 23, 1918.</p>

<p>Motion for new trial. Before Judge Crum. Dooly superior fcourt. January 12, 1918.</p>

<p>Petition for injunction. . Before Judge Morris. Cobb superior court. March 30, 1918.</p>

<p>Indictment for murder. Before Judge Bartlett. Polk superior court. February 20, 1918. (See ante, 332.)</p>

<p>Indictment for murder. Before Judge Hardeman. Washington ' superior court. March 31, 1918.</p>

<p>Equitable petition. Before Judge Hardeman. Emanuel superior court. April 13, 1918.</p> <p>T.' E. Cobb as owner, and G. L. Mason as lessee, signed a written contract, which, omitting formal parts, was as follows: “This contract entered into between Thos. E. Cobb, party of the first part, and G. L. Mason, party of the second part, for and in consideration of four dollars per acre, to be paid in cotton at ten cents per pound, said cotton to grade good middling, it is agreed between party of the first part and said party of the second part that said lands áre to be surveyed and said party of the second part is to pay four dollars per acre for lands actually cultivated. It is further agreed that this lease is to begin with the year 1916, and run for a period of five years, 1916, 1917, 1918, 1919, 1930. It is further agreed that this lease is to cover the entire home place with all improvements thereon of said party of the first part, with the exception of the house now occupied by said party of the first part; and the small tenant-house about two hundred yards beyond where said T. F. Cobb now resides, and about three or four acres of cultivated lands adjacent to said T. F. Cobb’s residence; the party of the first part agrees to fence said three or four acres- to itself: The party of the second part is to deliver to party of the first part sufficient cotton (grade good middling), at ten cents per pound, to pay said rent note each year; the party of the first part agrees for the party of the second part to deliver said rent cotton each year by the 15th day of September, or before if the party of the second part sees fit. The party of the first part agrees for the party of the second part to fence about four acres of land, which was originally fenced by said party of the first part, said four acres being adjacent to spring, said to be used by party of the second part for a pasture during the life of this lease.” The lessee took possession under the contract, and at the end of the second year the landlord was about.to distrain for rent, and to evict the lessee for non-payment of rent. On January 3, 1918, the lessee instituted an action to reform the contract, and to enjoin the landlord from distraining and from evicting the defendant. The petition as amended set forth a copy of the contract, and, in addition to what has just been stated, alleged the following in substance: During the fall of 1915 the plaintiff and Cobb discussed at various times the matter of plaintiff renting from Cobb for a period of five years the above-described property, and made a verbal agreement that the plaintiff was to rent the property for a term of five years beginning January 1, 1916. “This plaintiff was to pay as rent for said land at the rate of four dollars per acre for each acre of cultivable land; that the said Cobb was to have said lands surveyed as soon as practicable; and that this plaintiff was to execute and deliver to said Cobb promissory notes for each year of said rental period, the same to be for an amount equal to the number of acres as shown by the said survey when it was made, multiplied by four dollars per acre, said notes to be payable to the said Cobb, due one in the fall of each and every year. It was further agreed that this plaintiff was, however, to have the privilege of paying said notes in cotton on the basis of ten cents per pound, if plaintiff so elected; and if plaintiff elected to pay said notes in cotton, he, the plaintiff, must deliver sufficient cotton to grade good middling by the 15th day of September each year. . . Plaintiff and the said defendant each desired to reduce their agreement to writing, and, neither being skilled in the preparation of leases or other legal instruments, approached one S. H. Lynch, cashier of the Bank of Adrian, requesting that he do so for them. Said Lynch demurred, stating that he likewise was not skilled in the drawing of and in writing of instruments of such a character as that wished, but finally agreed to do so upon condition-that the parties would dictate to them the words of their agreement, and neither plaintiff, defendant, nor said Lynch knowing or understanding the full legal' meaning and significance of the words used, this plaintiff undertaking to dictate to said Lynch, in the presence of said Cobb, the aforesaid agreement, except that part of the agreement relating to the description of the promissory notes, but plaintiff and defendant agreed that that part of the agreement should be left blank to be inserted later, and after the survey of the land had been made;-and the parties did dictate to, and the said Lynch did write the instrument hereto attached [above quoted]. Plaintiff alleges that [where] in the first part of said written instrument are the words, ‘for and in consideration of four dollars-per acre, to be paid in cotton at ten cents per pound/ the words should have read, in order to express the true agreement of the parties, ‘for and in consideration of four dollars per acre, which may be paid in cotton at ten cents per pound/ and both of the parties thought and intended that said words were used and that they appeared in said instrument, and did not intend to use the clause as appeared in said instrument. Plaintiff further alleges that the words appearing in the last paragraph of said written instrument, ‘if the party of the second part sees fit/ should, in order to express the real agreement between the parties, and which they at-, tempted to reduce to writing, appear at the beginning of said paragraph, and that these words should be followed by the words, ‘deliver cotton/ and both of the parties so understood and agreed. Plaintiff alleges that in the written instrument, and about the middle of said instrument, which was written on typewriter, there were several blank lines, and that in said space, it was agreed by both of the parties thereto, should be insérted a memorandum relative to the notes hereinbefore mentioned, and that said memorandum was to be inserted after the notes were executed pursuant to the ascertainment of the number of cultivatable acres, as hereinbefore set out. Plaintiff alleges that the failure to correctly reduce to writing the verbal agreement hereinbefore set forth was due entirely to accident or mistake and ignorance both of law and fact on the part of both of the parties to said agreement, and that the said written [writing?], due to said accident and mistake and the ignorance of the parties of the proper and legal construction of an instrument of writing, does not express the true agreement of said parties, and was therefore a defective execution of the intent of the parties.” Other allegations were, that the plaintiff tendered to the defendant a stated amount of money which was sufficient, under the terms of the contract, for the amount of rent for the yeár 1917, according to a statement as to acreage as made by the defendant, but that the defendant refused to accept the money, and instead demanded cotton at the rate'of forty pounds per acre. At the time of the tender the market price of cotton was twenty-five cents per pound, or more, thus making the amount of rent, if paid in cotton at ten cents per pound, exceed the amount if paid in money at four dollars per acre. The prayers were, for reformation of the written contract so as to conform to the intention of the parties, as above set out, and for injunction. The defendant demurred to the petition as amended, on the ground that no cause of action was alleged. The demurrer was sustained, and the petition dismissed. The plaintiff excepted.</p>

<p>Petition for construction and direction. Before Judge Hodges. Oglethorpe superior court. April 15, 1918.</p>

<p>' Motion for new trial. Before Judge Hodges. Franklin superior court. November 24, 1917.</p>

<p>1. In the first excerpt from the charge of the court complained of in the motion for a new trial there was such an expression of opinion upon the facts of the case as to require the grant of a new trial.</p> <p>2. While there are certain inaccuracies in other portions of the charge complained of, they are not of such a-character as to constitute cause for the grant of a new trial.</p>

<p>Indictment for murder. Before Judge Crum. Wilcox superior court. October 16, 1918.</p>

<p>Petition for injunction. Before Judge Mathews. Bibb superior court. April 29, 1918.</p>

<p>1. Tinder proper construction of the order allowing the plaintiff thirty days in which to present to the court an amendment of his petition, it was within the power of the court, at the final hearing on demurrer to the petition, to allow an amendment which had been filed, within the thirty days so allowed, in the office of the clerk of the court where the case was pending, but had not been presented to the judge within the thirty days.</p> <p>2. The written instrument relied on as a basis of the action was not open to the objections that, it was too indefinite in description of the land referred to, and that it was lacking in mutuality and was unilateral and nudum pactum.</p> <p>3. The allegations of the petition as amended were sufficient, with all necessary parties before the court, as a' basis for application of the remedy of specific performance.</p> <p>4. Waiver of tender of the agreed price and of a deed for execution was sufficiently alleged.</p> <p>5. A cause of action was alleged.</p>

<p>1. The evidence authorized the verdict.</p> <p>2. A prima facie case is all that is necessary to carry dying declarations to the jury. It is an issue of fact whether or not they were made in immediate prospect of death.</p> <p>3. The court did not err in failing to charge that “dying declarations should be received with great caution, and the bias, the feeling, and the physical and mental condition of the declarant, as well as the' credibility of the alleged declaration, should be weighed by them,” even if this charge was such as the court would have been required to give had there been a written request therefor.</p>

<p>Complaint for land. Before Judge Morris. Cherokee superior court. October 9, 1917.</p>

<p>Equitable petition. Before Judge Bartlett. Polk superior court. December 17, 1917.</p>

<p>Petition for injunction. Before Judge Cobb. Banks superior court. January 5, 1918.</p>

<p>Temporary alimony.- Before Judge Terrell. Carroll superior court. December 27, 1917.</p>

<p>Equitable petition. Before Judge Bell. Eulton superior court. December 5, 1917.</p>

<p>Complaint. Before Judge Kent. Laurens superior court. December 8, 1917.</p>

<p>Injunction. Before Judge Park. Hancock superior court. February 4, 1918.</p> <p>E. W. Bigham brought a petition against A. KL. Chamlee, A. E. Eobertson, and B. K. English, sheriff of Washington county, for injunction, and other equitable relief, making substantially the following allegations: On August 23, 1916, he exchanged certain lands with Eobertson for other described lands in Washington county which Eobertson claimed to own, but did not, and for*which Eobertson, on August 25, 1915, contracted with A. K. Chamlee, the owner, to purchase, paying Chamlee $1,000 of the purchase-money, giving his note due in sixty days' for $6,736, and taking bond from Chamlee to convey title to Eobertson upon payment of the note. The note was not paid, and Chamlee brought suit thereon. The note stipulated for 10 per cent, attorney’s fees, but no prayer for attorney’s fees was contained in the petition. By consent of Eobertson verdict and judgment were taken in favor of Chamlee for $6,736 principal, $651.13 interest, and 10 per cent, as attorney’s fees, amounting to $736.71. A fi. fa. was issued upon the judgment, and was levied upon the land in Washington county which plaintiff obtained by exchange with Eobertson. The fi. fa. is proceeding illegally because of the attorney’s fees included therein, and plaintiff seeks to enjoin the sale of the land thereunder. Eobertson holds the bond for title executed by Chamlee, and refuses to recognize that the possession of this bond by him inures to the benefit of the plaintiff; and plaintiff asks that it be brought into court and canceled upon his paying the principal, interest, and costs due on the fi. fa., in which event Chamlee should transfer to plaintiff the title to the land. Eobertson admits holding the bond for title from Chamlee, but refuses to transfer and deliver the same, because of other demands he makes upon the plaintiff. Chambee insists that his fi. fa. legally includes the item of attorney’s fees, etc.</p> <p>The ease was submitted on affidavits and argument of counsel, after which the court restrained the defendant Eobertson until further order, -but refused an injunction against Chamblee and the sheriff; and the plaintiff excepted.</p>

<p>Injunction. Before Judge Highsmith. Glynn superior court. February 8, 1918.</p> <p>This case involves" the estate of Nelson H. Harrison, who died in Glynn county in July, 1917, in the 90th year of his age. The plaintiffs in the court below were Mrs. Martha Odum and the children of William Henry Harrison, who predeceased Nelson H. Harrison. The defendants were the other children of Nelson H. Harrison, namely, Eobert Harrison, Frank S. Harrison, and Nelson C. Harrison, and the children of James B. Harrison, a deceased son of Nelson H. Harrison. The National Bank of Brunswick, which had on deposit more than $13,000 in the name of Nelson H. Harrison at the time of his death, was also made a party defendant, as was James E. Thomas, temporary administrator of the estate of Nelson H. Harrison. The petition made substantially the following allegations: Mrs. Odum was a child of Nelson H. Harrison, and the other plaintiffs were children of William H. Harrison, a deceased child of Nelson H. Harrison, and all the plaintiffs were heirs at law of Nelson H. Harrison,' deceased. Soon after the death of Nelson H. Harrison the defendants conspired to divide among themselves, his estate (of the value of $35,000 or $40,000), to the exclusion of the plaintiffs, and they divided among •themselves the real property, having exchanged deeds for that purpose on August 13, 1917, in which it was recited that they were the sole heirs of Nelson H. Harrison, deceased. They also distributed among themselves all of the personal property of which they could get possession and appropriated it to their respective uses, leaving only the deposit in the bank, which is represented by a time certificate to mature about January, 1918. The defendants endeavored to get the bank to pay the deposit before it was due, insisting, in an affidavit' of August 13, 1917, that they were all of age and were entitled to it as the sole heirs at law of Nelson H. Harrison. The bank declined to pay the certificate, and notified the affiants that they would have to take out' letters of administration upon, the estate of Nelson H. Harrison. A temporary administrator (James E. Thomas) was accordingly appointed in November, 1917. The plaintiffs prayed: that a decree be rendered, establishing the status of themselves as heirs at law of Nelson H. Harrison, deceased, declaring who are his other heirs at law, and ascertaining and fixing the part of his estate to which each is entitled; for an accounting by the defendants for the personal property appropriated by each, and fixing the value thereof; for cancellation of the deeds of August 13, 1917, interchanged among the defendants; for marshaling the assets of the estate, and administration and distribution thereof among those entitled; for an awarding to the plaintiffs, out of the deposit in the bank, of such amounts as may be necessary to equalize their respective shares of the personal property with the shares of the other defendants in accordance with the accounting; for a sale, if necessary, of the real property of the estate; that the defendants be enjoined, pendente lite, from doing any act or thing which would interfere with or disturb the bank deposit, and that the bank be enjoined from paying the deposit to the other defendants; that the defendants be enjoined from disturbing the status of the lands conveyed by the deeds of August 13, 1917, and from cutting or removing any timber therefrom; for the appointment of a receiver, etc. The parties reached an agreement, pending the litigation, with respect to the management of the affairs of the estate, that obviated the necessity of a ruling by the court on the prayer for appointment of a receiver.</p> <p>Tbe defendants filed their answer. They deny that the plaintiffs are heirs and distributees of the estate of Nelson H. Harrison, and aver that the defendants are the sole and exclusive heirs, and that the equitable relief sought by the plaintiffs should be denied. They admit that they have divided certain property belonging to the estate of the deceased among themselves, but aver that they had a right to do so, as they were the children and heirs of the decedent. The court made an order enjoining the defendants from selling or offering to sell, or from incumbering or disposing of any of the property belonging to the estate of Nelson H. Harrison, etc. To this judgment the defendants excepted.</p>

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

<p>Complaint for land. Before Judge Park. Hancock superior court. March 2, 1918.</p>

<p>Injunction. Before Judge Mathews. Bibb superior court. March 2, 1918</p>

<p>Equitable petition. Before Judge Jones." Lumpkin superior court. April 16, 1918.</p>

Injunction. Before Judge Bell. Fulton superior court. April 26, 1918. Sometime prior to August, 1917, Loftis Brothers & Co., a corporation, purchased the business of the Banta-Cole Co. at No. 5 South Broad Street in the City of Atlanta. Prior to said sale the Banta-Cole Co. was engaged in business of buying and selling, on the installment plan, jewelry, watches, clocks, optical supplies, glassware, and articles of a similar nature.

<p>Attachment for contempt. Before Judge .Terrell. Coweta superior court. May 3, 1918.</p>

<p>Equitable petition. Before Judge Eve. Worth superior court. May 17, 1918.</p>

<p>Indictment for rape. Before Judge Walker. Wilkes superior court. May 27, 1918.</p>

<p>Temporary alimony, etc. Before Judge Harrell. Calboun superior court. May 16, 1918.</p>

<p>Indictment for murder. Before Judge Hill. Fulton superior court. May 11, 1918.</p>

Ne exeat. Before Judge Harrell. Calhoun superior court. May 16, 1918.

<p>Appeal from probate of will. Before Judge Hardeman. Washington superior court. December 17, 1917.</p>

<p>Equitable petition. Before Judge Crum. Dooly superior court. January 12, 1918.</p>

<p>Petition for injunction. Before Judge Thomas. Colquitt superior court. February 26, 1918.</p>

<p>Petition for injunction. Before Judge Smith. Campbell superior court. December 1, 1917.</p>

<p>Equitable petition. Before Judge Harrell. Mitchell superior court. October 10, 1917.</p>

<p>Petition for injunction. Before Judge Searcy. Houston superior court. January 18, 1918.</p>

<p>Writ of error; from Fulton.</p>

<p>Habeas corpus. Before Judge Hill. Fulton superior court. April 10, 1918.</p>

<p>Petition for injunction. Before Judge Wright. Floyd superior court. March 7, 1918.</p>

<p>Temporary alimony, etc. Before Judge .Sheppard. Tattnall superior court. April 30, 1918.</p>

<p>Indictment for making intoxicating liquors. Before Judge Mathews. Crawford superior court. April 29, 1918.</p> <p>Charlie M. Yaughan was indicted for the offense of distilling and manufacturing alcoholic, spirituous, and other liquors. The jury trying the case returned a verdict finding the defendant guilty and recommending him to the mercy of the' court. He made a motion for a new trial, which was overruled.</p>

<p>Indictment for murder. Before Judge Worrill. Clay superior court. June 8, 1918.</p>

<p>Indictment for murder. , Before Judge Mathews. Bibb superior court. July 15, 1918.</p>

<p>Indictment for murder. Before Judge Crum. Crisp superior court. July 13, 1918.</p>

<p>Claim. Before Edward B. Hines, judge pro hac vice. Hancock superior court. December 15, 1917.</p>

<p>It is not error to permit a plaintiff to dismiss his case after the trial judge has announced in open court the direction of a verdict for the defendant, and while the verdict directed is being written, but before it is actually signed.</p>

<p>The act of 1912 (Acts 1912, p. 472), creating a board of commissioners of roads and revenues in and for the County of Toombs, conferréd upon that board jurisdiction over county matters and county finances, so as to authorize it to contract for the building of a county court-house.</p>

Injunction. Before Judge Harrell. Grady superior court. January 31, 1918.

<p>Complaint for land. Before Judge Summerall. Coffee superior court. February 22, 1918.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. February 6, 1918.</p>

<p>Indictment for murder. Before Judge Ilighsmith. Wayne superior court. February 16, 1918.</p>

<p>Complaint for land. Before Judge McDonald (of the city court of Waycross). Ware superior court. November 28, 1911.</p> <p>Mrs. L. B. Yopp and Mrs. C, W. Sauls sued the Atlantic Coast Line Railroad Company, to recover an undivided half interest in certain land in possession of the railroad company. They base their title and right to recover one fourth undivided interest in the land on an inheritance from their mother, Matilda Moore, a daughter of Joshua G. Moore, who was a son of George W. Moore, under the will of the last named. Their mother, who.died intestate, was one of four children. They claim one fourth undivided interest through their father, W. S. Brazeal, who died intestate, who took by deed from Henry E. Moore, another one of the children of Joshua G. Moore, and who had one fourth interest under the will of his grandfather, George W. Moore. The will of George W. Moore and the deed of Henry E. Moore to Brazeal are attached to the petition as exhibits. The will, in so far as it aífects tin» case, is as follows: “I'give and bequeath to my grandchildren, they being children of my son, Joshua G. Moore, late of said county, deceased, all the rest and residue of my estate, of whatsoever kind, not hereinbefore bequeathed, share and share alike, and to their heirs forever.” The conveying clause of the deed, after stating the consideration, is as follows: “All .the rights, titles, claims, and interests which I have or may have against the estate of George W. Moore. . . " And I hereby authorize and empower the said Willis S. Brazeal to settle and receipt for to the executors of said estate for such portions of the property, money, goods, or chattels, as may or will be coming to me as legatee of said estate, in such full and ample a manner as I myself could or might have done if this deed had not been made.”</p> <p>To the petition general and special demurrers were interposed. The general demurrer is in the usual form. The special demurrer consists of seven grounds. The third and fourth grounds were sustained, as was the general demurrer. The remaining grounds of special demurrer are not mentioned in the judgment of the court. The third and fourth grounds are as follows:</p> <p>“3. Because the allegations in the tenth paragraph of plaintiffs’ petition and the deed therein referred to, a copy of which is alleged to be attached and marked exhibit ‘C,’ do not describe the land sued for, and therefore are irrelevant and immaterial; and both the allegations in said paragraph and said exhibit should be stricken.</p> <p>“4. Because the allegation in the tenth paragraph of plaintiffs’ petition, and as well the alleged description of the property conveyed . in the deed therein referred to as marked exhibit ‘C’ to plaintiffs’ petition, is too general, vague, and indefinite to constitute a conveyance of the property sued for.”</p>

<p>Injunction and receivership. Before Judge "Wright. Cobb superior court. March 22, 1918.</p>

<p>Questions certified by Court of Appeals (Case No. 9297).</p>

<p>Indictment for murder. Before Judge Thomas. Sumter superior court. April 10, 1918.</p>

<p>Writ of error; from Fulton.</p>

<p>Certiorari; from Court of Appeals (22 Ga. App. 381).</p>

<p>Indictment for murder. Before Judge Jones. Habersham superior court. May 28, 1918.</p>

. Claim. Before Judge Walker. Wilkes superior court. November 6, 1917.

<p>Petition for injunction. Before Judge Worrill. Quitman superior court. December 21, 1917.</p> <p>Mrs. C. 0. Morris and Mrs. Fannie L. Morris brought their petition against M. A. Perkins and L. M. Maddox as sheriff, seeking an injunction to prevent the enforcement of a judgment and execution. The petition was presented to the judge of the superior court, who refused to sanction it and to grant a restraining order.</p> <p>The following is alleged in the petition: Perkins brought suit, in the county court, upon an open account against Mrs. 0. 0. Morris, for the principal sum of $200, besides interest. The defendant in that suit filed her answer denying that she was indebted to the plaintiff, and pleading failure of consideration. At the June term, 1915, of the county court a judgment was rendered in favor of the plaintiff against the defendant, who entered an appeal in due time to the superior court, giving an appeal bond with Mrs. Fannie L. Morris as surety. At the September term of the superior court the case was continued for the term. Mrs. C. 0. Morris, on March 4, 1916, filed her voluntary petition praying to be adjudged a bankrupt, and she was adjudged a bankrupt on March 6, 1916. The debt nqw in controversy was duly scheduled, and M. A. Perkins was served with notice, and appeared at the first meeting of creditors and through his attorney examined the bankrupt. The petitioner in bankruptcy claimed the benefit of the exemption and homestead allowed her under the constitution and laws of this State, and prayed that the same be set apart to her. The trustee in bankruptcy set apart as a homestead and exemption the property, both real and personal, which was scheduled. At the March term, 1916, of the superior court the case of M. A. Perkins against Mrs. C. 0. Morris was called for trial. Mrs. Morris appeared and filed a plea alleging that she had been adjudged a bankrupt by the IT. S. district court, and requested the superior court to stay the cause of Perkins against her until the bankruptcy proceedings should be disposed of and her application for a discharge in bankruptcy be heard and determined. The case was then continued, because of the plea and for other reasons, until the September term, 1917, of the superior court. Mrs. C. 0. Morris, during the spring and summer of the year 1917, was an aged and infirm person, suffering from heart trouble and other causes, “which disqualified her for the greater part of that year from attending to any business whatever, and she is now far from being a well person; that she continues to suffer pain and is unable to stand any amount of physical exertion; that both of petitioners are widows and live at their residence in Quitman county under the same roof.” At the September term, 1917, of the superior court the case of Perkins against Mrs. 0. 0. Morris was again called; but “petitioners were absent from the court on account of the fact of physical indisposition, not being able to attend said court and go through the trial of said cause, and believing that her case was to be continued until the bankrupt court would pass upon her application for a discharge, which was then pending, and not having any way of communicating on that particular morning to her counsel as to her reason for not being present.” Her counsel stated to the court that he had prepared the application for a discharge in bankruptcy for his client, and that it would soon be passed upon, and moved for a further continuance until the matter of his client’s discharge should be determined. This motion was overruled, and the case proceeded to trial, resulting in a verdict for the plaintiff, and judgment was entered against Mrs. C. 0. Morris as principal and Mrs. Fannie L. Morris as security on the appeal bond. Execution from the judgments has been levied upon the property which was set apart in the bankruptcy court to Mrs. C. 0. Morris as her exemption and homestead. After the entry of judgment against her she received her discharge in bankruptcy; and because of this discharge the petitioners ask that Mrs. Fannie L. Morris, the security on the appeal bond, be released from all liability. There is no allegation that the property set apart in the bankruptcy court has also been set apart by the State court as a homestead or exemption. It. is alleged that the judgment against petitioners is a cloud upon the title of all property owned by either of them; and they pray that the execution be enjoined and decreed to be null and void.</p>

<p>An equitable petition by the holder of a security deed against the maker thereof, who resides in the county where the property covered by the deed is located, and against a third person residing in another county wherein the petition is filed, alleging that the grantor in the deed has conveyed to the third person the property therein described, and that they are making the contention that the deed is void because infected with usury, the plaintiff praying that a receiver be appointed to take possession of the property, to sell it and pay into court a sufficiency of the proceeds to cover the debt, and to perform certain other acts as receiver, and further praying that the third person referred to he restrained and enjoined from selling or disposing in any way of the property, is not demurrable on the ground that the superior court of the county of the residence of the third person is without jurisdiction, because no substantial relief is prayed against him.</p>

<p>-Writ of error; from Berrien.</p>

<p>Indictment for murder. Before Judge Bartlett. Paulding superior court. February SO, 1918.</p>

<p>Indictment for murder. Before Judge Park. Jasper superior court. February 22, 1918.</p>

<p>Petition for injunction. Before Judge Tbomas. Colquitt superior court. January 30, 1918.</p>

<p>Application for temporary alimony. Before Judge Littlejohn. Macon superior court. February 26, 1918.</p>

<p>Equitable petition. Before Judge Harrell. Dougherty superior court. March 27, Í918.</p> <p>T. N. Woolf oik Sr. and Mrs. Clara J. Woolf oik, husband and wife, resided in Dougherty county. Mrs. Woolf oik inherited from her father, about the year 1892, an estate consisting principally of realty. In 1903 she executed to her husband a general power of attorney to manage her estate. She was then in feeble health. Before and at the time of the execution of the power of attorney, the husband was engaged in the sale of commercial fertilizer on his own account. The wife had nothing to do with his business. For seven years after the execution of the power of attorney, the husband continued to manage the estate of the wife and also his private business. In January, 1910, his indebtedness to the Home Mixture Guano Co., a corporation of Muscogee county, Georgia, amounted to' approximately $2000. The company learned that he had a power of attorney from his wife, and required him to transfer his account to his wife’s name and to assume the $2000 indebtedness as her attorney in fact. The wife knew nothing of this transaction. In June, 1910, the account with the company amounted to $16,897'.62. The husband, as attorney in fact for the wife, executed and delivered to the company a note for this amount. This note was reduced by payments made by the husband to $11,584.02 by the latter part of January, 1912. On January 23, 1912, the company filed suit in the city court of Albany on this note, against the wife. She answered the suit, denying that she had any knowledge of the transaction leading up to the signing of the note, and alleging that she had not ratified the same. She was in ill health, and the case was continued, for more than a year. She died on April 8, 1913. Prior to her death she executed a will in which she named her husband as her executor, and gave him power to manage and dispose of her estate without responsibility to any court. The will devised and bequeathed her entire estate to her children, T. N. Woolf oik Jr., Mrs. E. E. Jackson, Mrs. John C. Coart, and Miss Eosa Woolf oik. Nothing was devised to the husband. After he had qualified as executor he was made a party to the suit in the city court. The ease was continued from term to term, and finally, on December 11, 1916, the executor executed a compromise agreement to pay the plaintiff in that suit $4500 in settlement of the claim, and undertook to secure the payment of the compromised amount by a deed to certain real estate belonging to the estate of the testatrix and specially devised to one of her children. In the same agreement he stipulated to confess judgment against the estate for the amount of the compromise in the event he failed to pay the same. This agreement was entered of record in tjie city court of Albany. He failed to pay the $4500; and T. N. Woolfolk Jr., son of the testatrix and devisee under the will, learned of this agreement prior to the February term, 1918, of the city court of Albany, and filed an equitable petition in the superior court of Dougherty county, setting out in substance the foregoing facts, and alleging that the agreement was the result of collusion and fraud, that the debt was the debt of the husband and not of the wife, and that both the company and the executor were fully advised of all the facts of the case. The petition (in which the other devisees afterward joined) prayed that the superior court take jurisdiction of all the issues in the ease in the city court; that the merits of the ease be determined on the issues raised by the pleadings filed by the testatrix prior to her death; that the company be enjoined from taldng judgment on the agreement; and that said agreement, and especially the lien sought to be created thereby, be canceled. An amendment to the petition alleged, that the executor assented to the filing of the petition in this case; that the executor himself refused and failed to institute the necessary action to set aside the compromise agreement and stipulation to confess judgment; that the executor was insolvent, and had not given bond; and that the agreement made between the executor and the guano company was illegal, fraudulent, and void as against the legatees and devisees under the will, all of whom were made parties plaintiff in the case. To the petition the defendant filed a demurrer in its nature both general and special. The principal grounds of demurrer were: (1) There is no equity in the bill, and the court has no jurisdiction of the person of the defendant. (2) Relief is sought not involved in the action at law, a suit upon a note already compromised by the executor and representative of the estate and of the plaintiff. (3) The petition.is filed by the alleged legatees under the will of Mrs. Clara J. Woolf oik, and it affirmatively appears that the legatees are seeking other relief than is germane to the action at law pending in the city court, and that there is a duly qualified representative of said estate. (4) The executor is a necessary party defendant to the suit to enjoin the action at law and to cancel the lien given by him to the defendant, as contained in the compromise agreement. (5) The charges of collusion and fraud, made in the petition, were insufficient. The court overruled the demurrer, and the defendant excepted.</p>

<p>Petition for injunction. Before Judge Hardeman. Washington superior court. May 23, 1918.</p>

<p>Specific performance. Before Judge Meldrim. Chatham superior court. May 31, 1918. .</p>

The Court of Appeals requested instructions from the Supreme Court upon the following questions (in Case No. 9278): “J. H. Mattox was, on the first Wednesday in October, 1910, regularly elected superintendent of education of Liberty County for the term of four years beginning May 7, 1912; and after his election had been declared by the proper authorities, his commission of office was duly forwarded by the Governor to the ordinary of Liberty County, with direction that it be…

<p>Complaint for land. Before Judge' Morris. Cobb superior court. May 5, 1918.</p>

Indictment for murder. Before Judge Harrell. Mitchell superior court. June 23, 1918. Jimmie Jones was tried upon an indictment charging him with the murder of Edgar Holton by shooting him with a pistol. The. homicide was alleged to have been committed on December 9, 1916; and on January 10, 1917, at an adjourned term of the superior court the indictment was returned.

<p>Writ of error; from Fulton. (See ante, 20.)</p>

<p>Habeas corpus. Before Judge Kent. Laurens superior court. March 3, 1918.</p>

<p>Habeas corpus. Before Judge Meldrim. Chatham superior court. April 16, 1918.</p>

<p>Writ of error; from Richmond.</p>

<p>Temporary alimony, etc. Before Judge Worrill. Clay superior court. March 30, 1918.</p>

<p>Habeas corpus. Before Judge Wright. Floyd superior court. May 11/1918.</p> <p>Harris & Harris, for plaintiff. Denny & Wright, for defendant.</p>

<p>Petition for injunction. Before Judge Bell. Fulton superior court. May I, 1918.</p>

<p>Equitable petition: Before Judge Crum. Wilcox superior court. May 1, 1918.</p>

Complaint. Before Judge Smith. Newton superior court. April 23, 1918. The defendants contracted with Partin Manufacturing Company for the furnishing by the latter of advertising matter, services, and prizes to be awarded to winners in connection with an “enterprise” to be conducted for the purpose of increasing the business of the defendants, and in settlement gave certain promissory notes.

<p>Indictment for murder. Before Judge Littlejohn. Macon superior court. June 7, 1918.</p>

<p>Equitable petition. Before Judge Tarver. Catoosa superior court. February 1, 1918.</p> <p>D. H. McDaniel, of Walker county, Georgia, brought an equitable petition against T. 0. Alford and his wife, Mrs. Daisy Alford, of Catoosa county, Georgia, to enjoin them from prosecuting an action instituted by them against the plaintiff in the chancery court of Hamilton county, Tennessee, the purpose of which was to recover damages for an alleged breach of warranty in a certain deed executed by the plaintiff in the present action to the defendants, conveying certain land in Catoosa county, Georgia; the plaintiffs in the Tennessee action reciting 'that the defendant conveyed to them 72 acres, more or less, and alleging that upon measurement of the land it contained only 52 acres, more or less, etc. The plaintiffs are basing their Tennessee suit upon- a statute of that State which provides that in all transitory actions the right of action follows the defendant, unless otherwise expressly provided. Both the plaintiff and the defendants in the present suit are domiciled in the State of Georgia. The petition in the present ease, so far as pertinent, alleged substantially as follows: The defendants were formerly residents of Hamilton county, Tennessee, and the suit in Tennessee is based upon a cause of action alleged to have arisen in Catoosa county, Georgia, growing out of the sale of certain land above referred to. The plaintiff is subject to the jurisdiction of the courts of Georgia, and he is thoroughly solvent in Georgia. .He has no property in Tennessee, and there is no legal reason why the action against him should have been instituted in the State of Tennessee, except “that the defendants herein, with their acquaintances and connections in Tennessee, feel that they have an advantage over petitioner in the courts of Tennessee which they would not have in Georgia, and petitioner alleges that this is the sole reason why this action was instituted in Hamilton county, Tennessee, and said bill, as petitioner alleges, was prepared and lay in wait for petitioner, who occasionally visits Chattanooga, and that when it was learned by the defendants herein that petitioner was in Hamilton county, Tennessee, the same was filed and served upon him in an effort to take the advantage which the defendants herein believe to exist in their favor by reason of the action having been brought in Tennessee, where petitioner will be required to produce his proof in a foreign jurisdiction and prove the law of Georgia as a substantive fact, employ foreign counsel, and be subjected to much annoyance for which there is no relief against the defendants herein, such expense not being recoverable against them in the event petitioner should be required to defend his rights in Tennessee and succeed in sustaining them, and inasmuch as this is not an action by attachment, wherein the defendants have not given any bond to respond in damages for costs or other damages 'to which petitioner may be subjected in the event defendants should be cast in this suit; thus and in this way the expense to which petitioner is liable to be subjected, in being required to go into a foreign jurisdiction and defend his rights, are damages which are in law and in fact irreparable.” The rights of the parties to the suit in Tennessee are controlled by the law of Georgia, which is well known and defined by the statutes and the decisions of the Supreme Court in cases of like character; the -law of the State of Tennessee is not applicable in so far as the rights of the parties are concerned, and the law of Tennessee applicable to the facts and conditions herein shown is decidedly different and contrary to the law of Georgia. The action of the defendants in going into Tennessee and filing their suit there and lying in wait for petitioner to enter that State, when service was effected upon him personally, is an effort on the part of the defendants to avoid the courts of Georgia, and is a deliberate effort to seek an undue and unfair advantage and cause him additional expense, burden, and annoyance, which plaintiff believes and charges a court of equity will not sanction or approve. By amendment plaintiff alleged that the Tennessee suit “was fraudulently instituted by defendants for the purpose of harrassing and annoying petitioner and for the purpose of forcing petitioner to pay the defendants money rather than be forced into the courts of Tennessee to defend the suit.” The defendants are insolvent and unable to pay the balance of the purchase-money on the land, and unable to respond in damages for a- malicious suit in the State of Tennessee.</p> <p>The defendants filed a general demurrer to the petition, which was sustained, and the plaintiff excepted.</p>

<p>Temporary alimony, etc. Before Judge Harrell. Decatur superior court. January 5, 1918.</p>

<p>The trial judge did not err in Ms decision upon the construction of the will in question.</p>

<p>Petition lor injunction. Before Judge Bell. Eulton superior court. April 29, 1918.</p>

Complaint for land. Before Judge Thomas. Brooks superior court. May 16, 1918. H. I. and A. E. Hill sued Shiver in ejectment for a narrow strip of land running along the boundary line between two lots of land.

<p>Complaint for land. Before Judge Thomas. Colquitt superior court. January 23, 1918.</p>

<p>Complaint for land. Before Judge.Bartlett. Douglas superior court. April 1, 1918.</p>

<p>Equitable'petition. Before Judge Searcy. Butts superior court. February 18, 1918.</p>

<p>Equitable petition. Before Judge Pendleton. Eulton superior court. December 4, 1917.</p>

Before Judge Cobb. Gwinnett superior court. February 9, 1918. Guerry Morgan filed his libel for divorce against Hattie Morgan, alleging that “on the 14th day of July, 1917, plaintiff and defendant intermarried and have ever since been and are now husband and wife.” He set forth certain acts of cruel treatment, alleged that the parties have no child, and prayed for a total divorce.

<p>Claim. Before Judge Littlejohn. Sumter superior court. February 27, 1918.</p>

<p>1. Where upon the petition of the widow of a decedent a year’s support, consisting -in part of a lot of land, was set apart for the widow and three minor children of the decedent, and where subsequently, upon the petition of the widow acting for herself and the minor children, the return of the appraisers, so far as it purported to set aside the lot of land referred to, was amended by making the description of the lot of land more definite, and this amendment was allowed and made the judgment of the court of ordinary, the minor children were bound by that judgment. Relatively to such proceedings to have the amendment made, they were themselves applicants or petitioners, and it was not necessary to serve them with notice of the application.</p> <p>2. Having held that the judgment of the court of ordinary allowing the amendment to the return of the appraisers was binding upon the minor children who were the plaintiffs in the present case, the verdict in favor of the defendant was required under the facts, and the court did not err in so directing.</p>

<p>Habeas corpus. Before Judge W. H. Davis. City court of Waynesboro. March 20, 1918.</p>

<p>Question certified by Court of Appeals (Case No. 9536).</p>

<p>Injunction. Before Judge Thomas. Lowndes superior court. May 15, 1918.</p>

<p>Quo warranto. Before’ Judge Wright. Floyd superior court. April 11, 1918.</p>

<p>Indictment for murder. Before Judge Terrell. Troup superior court. June 1, 1918.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. November 27, 1917.

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

<p>A husband filed suit for divorce against his wife, a non-resident of the State. . The petition for divorce alleged. the mental incapacity of the wife at the time of the marriage, unknown to the husband. The wife had both actual and legal notice of the pendency of the divorce case, but failed to appear and defend the same. Fourteen years after final decree granting to both parties a total divorce, the wife filed an equitable suit against the husband and others alleged to have been in conspiracy with him in the prosecution of the divorce case, to set aside the decree and to recover damages, alleging, in effect, that the ground upon which the decree was granted was fictitious and false and so known to the defendants at the time of the filing of the suit for divorce, and that she failed to defend the divorce ease because the husband and one of his alleged coconspirators fraudulently represented to her, at or about the time of the filing of the suit for divorce, that the decree would be sought and obtained upon the ground of desertion upon the part of the wife. The wife had not in fact deserted the husband. Held, that the fraud charged is insufficient to relieve the plaintiff from the imputation of negligence in failing to defend the divorce suit; and that the petition, considered as a suit to cancel the decree of divorce or to recover damages, was properly dismissed upon demurrer.</p>

<p>Exceptions to auditor’s report. Before Judge Graham. Dooly superior court. February 7, 1918.</p>

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

<p>Equitable petition. Before Judge Thomas. Lowndes superior court. April 20, 1918.</p>

<p>Equitable petition. Before Judge Black (of the city court). Richmond superior court. May 16, 1918.</p>

<p>Complaint for land. Before Judge Bartlett. Haralson superior court. May 11, 1918.</p>

<p>1. The court erred in admitting parol evidence to show a verbal collateral agreement which added to and varied a written contract which was unambiguous and complete, and in admitting evidence to show motive for the execution of the contracts; and the judgment refusing a new trial-must be reversed in so far as it applies to the cancellation of the contract for the purchase of stock in the corporation.</p> <p>2. The evidence authorized the finding that the contract of employment had failed; and the court did not err in rendering the judgment of cancellation in regard to that contract.</p>

<p>1. The petition stated a cause of action, except (relatively to one of the two defendants) as to a designated part of the property involved.</p> <p>2. On the trial of an equitable action to set aside alleged fraudulent sales of property and to subject it to payment of the plaintiff’s debt in execution, it was not cause for excluding the execution from evidence that in one respect it did not technically follow the judgment on which it issued.</p> <p>3. The witnesses as to whose competency objection was presented were not, in the circumstances, incompetent under the law.</p> <p>4. The charge to the jury was erroneous, relatively to one part of the property involved, in so far as it affected one of the defendants.</p> <p>5. In applying the provision of law that “a bona fide transaction on a valuable consideration, and without notice or ground for reasonable suspicion, shall be valid,” it was not a correct instruction that if the defendants took, the property “in good faith with no suspicion even of the purpose . . .to defraud, if there was no such purpose, then (they would be protected.”</p> <p>6. The finding in the verdict, that the plaintiff was “entitled to recover the value of ten bales cotton against both defendants equally,” was too indefinite to authorize a decree for any specified amount of money; although uncontradicted evidence -may- have shown a money value of cotton.</p>

<p>Under the law relating to the city court of Valdosta, the treasurer of the County of Lowndes is entitled to receive and disburse money collected after January 1, 1918, by the clerk of that court, from flues previously imposed therein; and the remedy, if any, of former oflicers of the court claiming such money is against the treasurer after he has received it. A petition for rule against the clerk, the treasurer, and the county, praying that the clerk be required to pay to the plaintiffs (the solicitor and the sheriff of the court) the amounts of their respective insolvent-cost bills approved by the judge of the court, was subject to demurrer.</p>

<p>Equitable petition.. Before J. Mark.Wilcox, judge pro hac vice. Jeff Davis superior court. March 8, 1918.</p>

<p>Equitable petition. Before Judge Thomas. Lowndes superior court. March 16, 1918.</p>

<p>Equitable petition. Before Judge Terrell. Carroll superior court. February 11, 1918.</p>

<p>The action, after amendment of the petition, being against one in his representative capacity as trustee only, it was not error to dismiss the suit as to him individually.</p> <p>Gilbert, J., dissenting. This being an action at law, and not a cause in equity, the Court of Appeals, and not the Supreme Court has jurisdiction of the writ of error.</p>

<p>Petition for receivership. Before Judge Hammond. Richmond superior court. April 10, 1918.</p>

<p>Writ of error; from Floyd.</p>

<p>1. The failure of the clerk to attach his signature to the copy process, ' regular in other respects, served upon the defendant in an equitable suit, is not cause for abatement of the suit, the original process attached to the original petition of file in the office of the clerk being regular in all respects, and the copy petition served upon the defendant, as required by statute, along with the defective process, being a true copy of the original petition, including entry of filing thereon under the signature of the clerk.</p> <p>2. Under the ruling in Lamar v. Taylor, 141 Ga. 227 (3), 234 (80 S. E. 1085), the individual liability of stockholders of the Exchange Bank of Macon, under its charter, to depositors for all moneys deposited by them therein, is, upon its insolvency, an asset of the bank and enforceable in a suit or suits brought by its receivers. Civil Code, § 2249.</p> <p>3. Section 2249 of the Civil Code (Acts 1894, p. 76), which makes the statutory individual liability of a stockholder in an insolvent corporation an asset of such corporation, “to be enforced by the assignee, receiver, or other officer having the legal right to collect, marshal, and distribute the assets of such failed corporation,” is not unconstitutional because, as applied to the Exchange Bank of Macon, chartered before the passage of the act of 1894, supra,, it is retroactive and impairs the obligation of contracts. The act is purely remedial, and by it the statutory liability of the stockholder is neither extended nor restricted, increased nor diminished. Moore v. Ripley, 106 Ga. 556 (2), 559 (32 S. E. 647); Lamar v. Taylor, supra. '</p> <p>4. Where a banking corporation has been shown to be insolvent and its "sets placed in the hands of receivers, and in pursuance of an order "f court the receivers undertake to enforce by suit in equity the indi-idual liability of the stockholders as fixed by the charter in favor of ’"positors in such corporation, all the stockholders so liable may be joined in one action. There is no misjoinder of causes of action or of narties defendant. Moore v. Ripley, supra. In a suit of the character just indicated, (a) no-demand by depositors as a condition precedent to suit is necessary; (5) the liability of the stockholder need not be actually fixed and determined; (c) the assets, legal and equitable, of the corporation, need not have been first completely exhausted; and (d) the action to enforce the statutory liability of the stockholder may b,e brought at any time -within twenty years after the right of action accrues. Civil Code, § 4360; Wheatley v. Glover, 125 Ga. 710 (19), 728 (54 S. K 626).</p> <p>6. In such action the receiver may sue the stockholder in whose name the capital stock stands upon the books of the corporation at the time of its failure (Civil Code, § 2248); or he may sue the real owner of the shares of the capital stock in such failed corporation, although such shares stand on the books of the bank in the name of another who in fact has no interest therein.</p> <p>7. The amendment to the petition did not set forth a new cause of action.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. February 13, 1918.</p>

<p>Complaint for land. Before John R. L. Smith, judge pro hac vice. Houston superior court. April 12, 1918.</p>

<p>Claim. Before Judge Howard. Marion superior court. April 22, 1918.</p>

<p>Equitable petition. Before Judge Sheppard. Effingham superior court. April 16, 1918.</p>

<p>1. The petition as amended set forth a cause of action, and there was no error in overruling the general and special demurrers.</p> <p>2. The vendee of a tenant who has an apparent legal title and from whom the purchase was made, with or without notice of the tenancy, can not dispute the title of the landlord, in an action of complaint for land, until he has restored the possession to the latter.</p> <p>3. Without regard to the special assignments of error upon the admissibility of testimony and upon pertain instructions given by the court to the jury, the verdict for the plaintiff was demanded, and the court did not err in overruling the motion for new trial.</p>

<p>Equitable petition. Before Judge Lawrence (of the city court of Baxley). Appling superior court. May 14, 1918.</p>

<p>Claim. Before Judge Highsmith. Appling superior court. April 16, 1918.</p>

<p>Ejectment. Before Judge Hammond. Jenkins superior court. September 9, 1918.</p>

<p>Indictment for murder. Before Judge Kent. Laurens superior court. September 14, 1918.</p>

<p>Questions certified by Court of Appeals (Cases Nos. 9445, 9472).</p>

<p>Equitable petition. Before Judge Worrill. Early superior court. January 5, 1918.</p>

<p>1. Section 20 of the act of the General Assembly, approved March 28, 1917 (Acts 1917, Extraordinary Session, pp. 7, 16), which provides for the condemnation and sale of “All'vehicles and conveyances of every kind and description which are used on any of the public roads or private ways of this State, and all boats and vessels of every kind and description which are used in any of the waters of this State in conveying any liquors or beverages, the sale or possession of which is prohibited by law,” is not unconstitutional on the grounds (a) that it is violative of the due-process clauses of the State and Federal, constitutions; (6) that it is violative of the provision of the constitution of Georgia which declares that “No conviction shall work corruption of blood, or forfeiture of estate;” (e) that it is violative of the constitution of this State, which declares that no special law shall be enacted in any case for which provision is made by an existing general law; (d) that it authorizes the taking and damaging of private property for public purposes without just and adequate compensation being first paid; (e) that it is in conflict with the constitutional provision which prohibits excessive fines and cruel and unusual punishments.</p> <p>2. The proceeding authorized by section 20 of the act in question is one in rem, “against the offending thing, and not against the offending owner.”</p> <p>(a) It is not decided that the solicitor of the court having jurisdiction had not legal capacity to institute condemnation proceedings in his name as solicitor; but it is suggested that the proceeding, in the nature of an information, should properly be brought in the name of the State.</p>

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

<p>Condemnation under liquor law. Before Judge Christian. City court of Nashville. November 23, 1917.</p>

<p>Certiorari; from Court of Appeals. 21 -Ga. App. 777.</p>

<p>Equitable petition. Before Judge Crum. Ben Hill superior court. March 7, 1918.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. March 26, 1918.</p>

<p>Injunction. Before Judge Thomas. Thomas superior court. May 4, 1918.</p> <p>Mrs. S. E. Tennyson brought her petition against J. T. Thompson, alleging, that she was the owner of a grist mill which her husband J. N. Tennyson, as her agent, conducted for her; that in the operation of the mill for the purpose of grinding corn she had acquired by deed the privilege of maintaining a mill-pond on certain land described in the deed; that she was in the possession of the same, operating the mill and using the pond through her husband and agent, and her predecessors in title had been in the peaceful possession of the same without interference for thirty years or more; that the defendant and his agents patrolled the pond and forbade those working in plaintiffs employment, and her licensees, from using or going on {he pond, and had put up signs forbidding’ any one from going on the pond; that defendant ordered plaintiffs husband off the pond and made threats intimating that he would shoot any one caught on the pond; that defendant interfered with persons who desired to visit the mill and premises for the purpose of having their corn ground, and he still continues to patrol the pond and premises, interfering with plaintiff’s business; that defendant has been notified to stay off the premises and pond, but he wilfully and maliciously disregards and violates her rights of private property. Plaintiff prayed that defendant and his agents be enjoined from going on the pond and premises, and from intimidating the customers of plaintiff, etc. The part of plaintiff’s deed material here is as follows: Plaintiff attached to her petition a deed from Mrs. Siddah Perry, of Thomas County, Georgia, dated October 3d, 1917, conveying “the privilege of having and maintaining a mill-pond known as the Bullock mill-pond, situated on lot number 207 in the 17th land district of said State and county. Also that portion of lot of land number 208, containing 107 acres, more or less, and bounded as follows: on the east by original land lot line, on the south by the run of a certain branch, on the west by lands of Mrs. Freeman Carden, and on the north by lands of Mrs. Freeman Carden, being the same land upon which my residence is located, and which is and has been used in connection with the operation of the mill above described. Also, that portion of lot No. 194 in said district of said State and county as is and has been used for the purpose of backing water thereon in the use, maintenance, and operation of said mill.”</p> <p>The defendant filed an answer, denying the material allegations of the petition, and averring that he held the land on which the pond is located under a warranty deed from T. T. Thompson to himself. He also attached a copy of a deed from James A. Bullock to T. T. Thompson, by which the grantor of the defendant acquired title and possession of lot No. 207. Defendant averred, that “the plaintiff has no interest or equity in or respecting lot of land No. 207, save the mill privileges defined in. the deeds hereto attached;” that the defendant was the owner of that part of lot of land No. 207 covered by and adjacent to the mill-pond, and is entitled to the hunting and fishing privileges thereon, whereas the plaintiff’s agent and husband “has, without authority of law, endeavored to seize and hold the exclusive hunting and fishing privileges on and adjacent to said pond, which hunting and fishing privileges are entirely separate and distinct from the mill and the mill privileges.” The defendant prayed that the plaintiff’s prayers for relief be denied, and that she be enjoined from hunting or fishing upon the pond, or that part of lot of land No. 207 adjacent to the pond, without first obtaining the written permission of the defendant or his assigns. He also prayed that the deed from Mrs. Perry to the plaintiff be canceled as a cloud upon his title.</p> <p>Upon the interlocutory hearing the trial judge granted the injunction‘as prayed for by the plaintiff, “in so far as the water and pond are-concerned,” and the defendant and his agents were enjoined from going upon the pond or premises described in the petition. To this judgment the defendant excepted.</p>

<p>“Equity seeks always to do complete justice; and having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject-matter of thé suit, provided the court has jurisdiction for that purpose.” Markham v. Huff, 72 Ga. 874. Applying this principle to the facts as alleged in the petition in the instant case, the plaintiff should have been allowed to maintain the action, and it should not have been dismissed upon general demurrer.</p>

<p>Writ of error; from^Lee. Motion to dismiss. ,</p>

<p>Confirmation of receivers’ sale. Before Judge Mathews. Taylor superior court. March 23, 1918.</p>

Complaint for land. Before Judge Pendleton. Eulton superior court. April 11, 1918.

<p>1. In a suit brought by the receivers of an insolvent bank, chartered under the laws of Georgia since the act of 1893 (Acts 1893, p. 70), against a stockholder thereof upon his statutory individual liability to depositors of the bank (Civil Code of 1910, § 2270), the defendant can not set off the amount of his individual deposits which he had in the bank when it .became insolvent and ceased to operate.</p> <p>2. Nor can he set off an amount of money which, subsequently to the insolvency and closing of the hank but prior to the commencement of such suit against him, he voluntarily paid to other depositors of the bank to reimburse them for the loss of their deposits.</p>

<p>1. Where the trial judge renders a judgment granting a new trial based upon a single ground in the motion, and the respondent brings a bill of exceptions, and the defendant in error brings a cross-bill of exceptions, the assignments of error in the cross-bill relating to questions which will probably arise on another hearing will be decided.</p> <p>2. Letters of administration granted in another State, authorizing an administratrix to administer “personal property, goods, chattels, and credits,” of an intestate who died while a resident of the State in which the letters were issued, are special in character, and do not afford authority to the administratrix to maintain a suit in this State to enjoin the cutting of timber and to recover damages for trespass in cutting and removing the timber from the land.</p> <p>(a) In a suit of the character just mentioned, it is incumbent upon the judge so to frame his charge to the jury as to make it conform to the pleadings and evidence; and the fact that the letters of administration have been admitted in evidence without objection would not authorize the judge to charge that the administratrix was authorized to maintain the suit.</p> <p>3. In a suit to enjoin the cutting of timber and recover damages for trespass on the realty, where both parties relied upon prescriptive title, and tlie plaintiff contended that the land in dispute was a certain part of her land lying on the north side of a road which separated it from the main body of her land of which it formed a part, and the defendants contended that the land in dispute was a part of their tract which comprised all the land on the north side of the road, and that they and their predecessors in title had been in actual possession of the land, and a witness for the plaintiff had testified that during the period of the defendants’ actual possession the plaintiff’s lessees had cut the timber on all of the plaintiff’s tract, it was competent to show by the same witness that such lessees did not cut the timber on the land in dispute.</p> <p>4. In order to admit secondary evidence, it must appear that the primary evidence, for some sufficient cause, is- inaccessible to the diligence of the party. The question of diligence is ordinarily addressed to the discretion of the court, which will not be interfered with unless flagrantly abused.</p> <p>5. One of the defendants’ predecessors in title was John M. Tison. A certificate issued by him, signed “John M. Tison, County Surveyor,” tending to show the correctness of a map of the plaintiff’s lands, was relied upon as a part of the deed under which she was attempting to prescribe. She did not show that John M. Tison was ever in possession of the land in dispute, but contended to 'the contrary. The defendants produced evidence to show that John M. Tison was in actual possession of the land in dispute during the period covering the date of the certificate. The certificate was tendered after the introduction of such evidence by the defendants. Eeld, that there was no error in admitting the certificate over the objections: (1) that it did not appear that the.certificate was made while Tison was in possession; (2) that it was an official certificate, and would not bind him personally.</p> <p>6. Under the issues presented by the pleadings and evidence, the authority of one of the agents of the plaintiff’s intestate to manage and control his lands was a relevant question; and it was not erroneous to admit a paper purporting to be a copy of the map of his lands covering the land in dispute, when offered in connection with other evidence tending to show that at the time of employment the plaintiff’s intestate delivered to the agent the paper as showing the lands he was employed to protect,</p> <p>(a) The paper contained certain certificates which were not objected to separately; the only objection being-to the evidence in its entirety. Under such objection the admissibility of such certificates will not be considered.</p> <p>7. The true location of the dividing line between the lands of the plaintiff and the defendants was a matter óf dispute, and under the pleadings and evidence there was a question of whether a line had been established by acquiescence by acts and declarations of the parties or their predecessors, or by actual possession of the defendants and their predecessors for a term of seven years; and it was the duty of the court, without request, to charge the law on that subject.</p> <p>8. The plaintiff’s intestate was never in actual possession of the land in dispute, though there was evidence tending to show that he was in constructive possession thereof. There was also evidence to show that the defendants and their predecessors in title were in actual possession of the land in dispute during any period of the plaintiff’s constructive possession. Under these circumstances the court, on request, should have charged the jury “that actual possession of land by one person claiming it is inconsistent with the constructive possession of the same land by another claimant.”</p> <p>9. The charge complained of in the fifth ground of the amended motion for new trial did not accurately state the contentions of the defendants, and was somewhat confusing.</p> <p>10. The charge set out in the tenth division of the opinion was applicable to one phase of the case as made by the pleadings and evidence, and was not open to the objections urged against it in the motion for new trial.</p> <p>11. The charge set out in the eleventh division of the opinion unduly restricted the period within which the defendants were authorized to presci'ibe.</p> <p>12. The prescription provided for in the Civil Code, § 4168, contemplates actual possession for a period of twenty years, and that provided for in § 4169 contemplates possession under color of title for seven years, which may be actual or constructive; and in a case where a party relies upon a prescription based upon both sections, the court should not, in the charge, so confuse the two as to state in effect that, in order to acquire prescription under color of title, the possession relied on as the basis of such prescription must be actual possession of the whole tract.</p> <p>13. The evidence authorized a charge upon the subject of permissive possession.</p> <p>14. As the ease will go back for another trial, in which the evidence may not be the same, no ruling will be made on the sufficiency of the evidence to support the verdict.</p>

<p>Questions certified by Court of Appeals (Case-No. 899.6).</p>

Certiorari; from Court of Appeals. 21 Ga. App. 732. J. D. B. DeBow, a citizen of the State of Tennessee, ’ filed his suit in the superior court of Fulton county, Georgia, against the Vicksburg, Shreveport & Pacific Railway, a non-resident corporation, as an initial carrier for hire, to recover $20,000 alleged to be the value of a certain hog shipped by him in interstate commerce from Shreveport, La., to Montgomery, Ala.

Petition for construction and. direction. Before Judge Bell. Fulton superior court. January 31, 1918.

<p>Libel for divorce. Before Judge Meldrim. Chatham superior court. February £8, 1918.</p>

<p>Specific performance. Before Judge Bell. Fulton superior court. April 8, 1918.</p>

<p>Claim. Before Judge Hammond. Burke superior court. March 16, 1918.</p>

<p>Indictment for'fraudulent bank insolvency. Before Judge Crum. Wheeler superior court. October 20, 1918.</p>

<p>Equitable petition. Before Judge Smith. Newton superior court. April 17, 1918.</p>

<p>Equitable petition. Before Judge Howard. Grady superior court. February 9, 1918.</p>

<p>Under the act creating the city court of Boston (Acts 1914, p. 194), a counter-affidavit filed to a distress warrant properly returned to that court is triable at the first term thereafter.</p>

<p>Affidavit of illegality of execution. Before Judge Meldrim. Chatham superior court. April 29, 1918.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. March 12, 1918.</p>

<p>Membership on a local board created under the provisions of the selective-draft act passed by Congress on May 18, 1917 (U. S. Rev. St. Temp. ■ Supp. 1917, p. 61), did not disqualify the member from holding the . position of police commissioner of the City of Atlanta, under the provisions of the charter of that municipality.</p>

<p>1. The assignments of error based on the refusal to continue the case, and on sustaining the demurrer to portions of the answer, show no error.</p> <p>2. Where the seller of personal .property brings an action in trover against one not the original purchaser, to recover the property or its value, a money judgment therein is not a judgment for purchase-money.</p>

<p>Equitable petition. Before Judge Tarver. Gordon superior court. May 4, 1918.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. May 25,1918.</p>

<p>Equitable petition. Before Judge Mathews. Appling superior court. August 1, 1917.</p>

Specific performance. Before Judge Smith. Campbell superior court. November 5, 1917. See 145 Ga. 103. Mrs. N. C. Bivers brought her equitable petition against Mrs. Exer Ellen Landrum as an individual and as administratrix of the estate of L. A. Brown, in which she prayed, among other things, specific performance of an oral contract to make a will, and for injunctive relief. This petition was filed on May 13, 1915.

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

Equitable petition. Before Judge Sheppard. Liberty superior court. January 5, 1918. Mrs. A. C. Wilkes, as administratrix of the estate of J. W. Groover, brought her petition against J. J. Groover and J. C. Groover, to recover certain lands and to cancel deeds, and for other equitable relief.

<p>A party can not successfully ask for relief in equity to set aside a judgment at law against him, on the ground that -he failed or omitted to make a legal defense, unless he was prevented by fraud or accident, unmixed with any fraud or negligence by himself, from setting up such defense.</p>

<p>1. The marking of papers as “filed,” by a judge on interlocutory hearing, who retained them for use in making his decision of the case, and his later forwarding them by mail to the clerk of the superior court, who never received them, did not constitute a legal filing of them in the office of the clerk.</p> <p>2. It was error, at the trial of the case, to order that copies of such papers be marked filed as of the date of the interlocutory hearing.</p> <p>3. The court had no jurisdiction, at the second term after the trial term of the case, to open a default in pleading and to allow a defendant then to file a demurrer and an answer, upon his oral motion not under oath.</p> <p>4. The verdict should be vacated as to both defendants, but without taxing costs against one of them between whom and the plaintiff there was - really no issue. ' ■</p>

<p>Claim. Before Judge Terrell. Heard superior court. March 18, 1918.</p>

Equitable petition. Before Judge Kent. Laurens superior court. April 22, 1918.

<p>Equitable petition. Before Judge Thomas. Berrien superior court. March SO, 1918.</p>

<p>Question certified by Court of Appeals (Case No. 9726).</p>

<p>• Equitable petition. Before Judge Meldrim. Chatham superior court. November 19, 1918.</p>

<p>1. Upon consideration of the evidence and the pleadings it does not appear that the petitioner in this case was denied the right of arbitration upon the question of the valuation of his property, which had been assessed by the county board of tax-assessors at a higher valuation than that placed upon it in the return made by petitioner to the tax-receiver.</p> <p>2. The sixth section of the act of August 14, 1913, relating to the duties of county boards of tax-assessors created by that act, and providing for notice to any taxpayer whose returns have been increased, and for arbitration in ease of dissatisfaction of a taxpayer with the action of the board, and for a decision by a majority of the arbitrators fixing the final assessment of the property, except so far as the same may be- affected by the finding of the State tax commissioner, is not repugnant to the due-process clause of the constitution of the United States, as contained in the fourteenth amendment; nor is it obnoxious to the due-process clause of the constitution of the State of Georgia; nor d'oes it deprive the taxpayer of the equal protection of the laws.</p> <p>(а) Questions raised as to the constitutionality of those portions of the act which relate to and define the powers and duties of the State tax commissioner are not determined, as they are not involved under the facts of this case.</p> <p>(б) Upon review of the decision of Vestel v. Edwards, 143 Ga. 368 (85 S. E. 187), the request that it be overruled is denied.</p> <p>3. The tax-equalization law is not unconstitutional on the ground that it is in conflict with art. 7, see. 2, par. 1, of the constitution of Georgia (Civil Code, § 6553), which declares that all taxation shall be uniform upon the same class of subjects, etc.</p> <p>4. That pai’t of the act which provides for the appointment of county boards of tax-assessors is not ■ unconstitutional on the ground that it is in conflict with art. 11, see. 2, par. 1, of the constitution of Georgia (Civil Code, § 6599), which declares that county officers shall be elected by the qualified voters of their respective counties. The members of the board are not “county officers,” within the meaning of that expression as used in the section of the constitution last referred to.</p> <p>5. The appointment of the board of tax-assessors of McDuffie County by the ordinary was legal and proper under the law.</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. December 15, 1917.</p>

<p>Attachment for contempt. Before Judge Meldrim. Chatham superior court. December 27, 1917.</p>

<p>Equitable petition. Before Judge Jones. Hall superior court. January 18, 1918.</p>

<p>Equitable petition. Before Judge Hardeman. Washington superior court. December 18, 1917.</p>

<p>Intervention. Before Judge Thomas. Lowndes superior court. January 18, 1918.</p>

<p>Questions certified by Court of Appeals (Case No. 8323).</p>

<p>1. The defendants’ answer in the nature of a cross-petition, as finally amended, is to be construed as setting up a demand for damages on account of the breach of the contract, and not as a suit for the recovery of the property. The contract contemplates a sale 'of the sawmill outfit, except specified! parts of the machinery to be used therein, and a lease of the tramroad and its equipment.</p> <p>2. Where the lessor in pursuance of the contract furnished a tramroad, engine, locomotive, and cars, and the lessees accepted and used them in their business, a claim for damages by the lessees, based upon the alleged defective condition of the road and its equipment, for alleged profits which the lessees would! have earned in operating the mill if the tramroad and equipment had been in good condition, was too remote and speculative to be the basis for recovery. Civil Code, § 4394; Willingham v. Hooven, 74 Qa. 233 (3), 234 (58 Am. R. 435).</p> <p>3. Treating the cross-demand as for a breach of the contract, the measure of damages for the alleged breach in taking so much of the sawmill outfit as was owned by the defendants sliouid be upon the basis of the fair market value of that property at the date it was taken, and not for any amount of money that may have been advanced by the defendants for the equipment, maintenance, or improvement of the property. Demands of the character last mentioned were set up in the answer, and the judge erroneously instructed the jury in regard to considering this in determining the amount of damages recoverable by the defendants. The measure of damages applicable as above stated would also apply to the value of buildings and other appurtenances erected by the defendants as a part of the sawmill outfit.</p> <p>4. The foregoing rulings dispose of the controlling questions so far as properly made; and it is unnecessary to pass upon any other assignment of error presented by the record.</p>

<p>Certiorari; from Court of Appeals. 21 Ga. App. 753.</p>

<p>Equitable petition. Before Judge Matthews. Bibb superior court. February 13, 1918.</p>

<p>Description and counsel as in No. 1043, ante, 671.</p>

<p>A contract by a wife to sell her separate estate to her husband is void unless it is allowed by order of the superior court of the county of her domicile. The judge of the superior court of the county of the wife’s domicile has no jurisdiction to grant such an order in vacation, and a contract of sale made in pursuance of such vacation order is void.</p> <p>A wife may give her separate estate to her husband without an order o.f the superior court; but such a gift will not be presumed'. To establish it the evidence must be clear, unequivocal, and free from doubt that the parties intended the transaction to be a gift.</p> <p>Proof merely that an instrument purporting on its face to be a warranty deed consummating a sale, for a stated consideration, by a wife to her husband, of land constituting her separate estate, and made under a vacation order of a judge of the superior court, was without consideration, would! not convert it into a “deed .of gift.”</p> <p>In this case there was no evidence of a clear and unequivocal character showing the intention of the parties, free from doubt, that the transaction between the wife and the husband was a gift from her to him of the land in controversy.</p> <p>The action being to recover land, and against a widow, the maker of an instrument as referred to above, which was the only title under which the plaintiff claimed, the judge, under the legal principles hereinbefore announced, and on the evidence submitted’, properly refused, on a preliminary hearing, to grant an interlocutory injunction, and to appoint a temporary receiver.</p>

<p>Action for damages. Before Judge Price. City court of Tifton. May 24,'1918.</p>