Volume 149 — Georgia Reports

<p>1. Under the proviso contained in the fifth section of the aet approved August 23, 1907, embodied in the Civil Code, § 2662, the Railroad Commission of this State was without authority to exercise the powers conferred and extended by that act, so as to determine or fix fares upon lines of street railroads within the limits of any town or city between which and the street-railroad company operating such lines there was a valid, subsisting contract at the time of the passing of the act.</p> <p>(а) There was such a contract between the City of College Park and the Georgia Railway & Power Company, and between that company and the City of Decatur as to one line running from Decatur to Atlanta.</p> <p>(б) But as between the Cities of Atlanta and East Point and the Georgia Railway & Power Company there was no such contract.</p> <p>(c) But there was a contract covering the subject of transfers, which provided that upon the payment of one full fare a transfer should be given; and the Railroad Commission was without jurisdiction to deal with the matter of transfers.</p> <p>2. “A grant of power to a municipal corporation must be strictly construed; and such a corporation can exercise no powers except those which are expressly given, or are necessarily implied from express grants of other powers.” Applying this principle to the facts contained in this record the City of Atlanta was without authority to pass an ordinance fixing the rates of fare upon the lines of the street-railroad company which it had constructed within the limits of the municipality, and any attempt by the municipality to pass such ordinances was nugatory.</p> <p>3. In the absence of a valid subsisting contract and ordinance upon the subject of fares, it was the duty of the Railroad Commission, upon application by the Georgia Railway & Power Company, a street-railroad company, to fix and determine tlie rates of fare upon the lines of the street-railroad in the city, in accordance with the law defining the powers and duties of the commission.</p>

<p>Indictment for murder. Before Judge Cobb. Walton superior court. October 9, 1918.</p>

<p>Indictment for murder. Before Judge Bartlett. Haralson superior court. October 21, 1918.</p>

<p>Where one sold land and executed to the purchaser a deed, of conveyance, but inserted in the deed a stipulation that the note for the unpaid purchase-money, “by express agreement of the maker of this deed, is held as a second-mortgage note subject to a certain loan which shall be a prior lien on the property conveyed,” this reservation had the effect of creating such a lien on the property as was enforceable by the vendor against any subsequent transferee of the property, or mortgagee, except the one whose’ loan was expressly provided for in connection with the reservation.</p>

<p>Indictment fox muxdex. Befoxe Judge Thomas. Colquitt supexiox couit. Novembex 11, 1918.</p>

<p>Indictment for murder. Before Judge Mathews. Bibb superior court. August 5, 1918.</p>

<p>Neither under the evidence nor under the statement of the accused was the offense of voluntary manslaughter involved in the-ease, and the court properly refused to charge the jury upon that subject.</p>

<p>■Petition for injunction. Before Judge Harrell. Decatur superior court. October 31, 1918.</p>

<p>Habeas corpus. Before Judge Morris. Gilmer superior court. November 2, 1918.</p>

<p>Petition for mandamus. Before Judge Searcy. Butts superior court. June 7, 1918.</p>

<p>Petition for injunction. Before Judge Meldrim. Chatham superior court. April 15, 1918.</p>

<p>Indictment for murder. Before Judge Jones. Habersham superior court. ' July 15, 1918.</p>

<p>Indictment for murder. Before’ Judge Harrell. Mitchell superior court. August 8, 1918.</p>

<p>Temporary alimony, etc. Before Judge Ellis. Fulton superior court. July 25, 1918.</p>

<p>Annulment' of marriage. Before Judge Cobb. Jackson superior court. September £8, 1918.</p>

<p>Indictment for murder. Before’ Judge Harrell. Mitchell superior court. August 8, 1918.</p>

<p>Question certified by Court of Appeals (Case No. 9685).</p>

<p>Equitable petition. Before Judge Mathews. ■ Bibb superior court. June 6, 1918.</p> <p>The Central of Georgia Bailway Company notified the Bibb Brick Company of its intention to occupy for railway purposes that portion of Pine Street between Fifth and Sixth Streets in the City of Macon, in pursuance of the Acts of the General Assembly approved August 18, 1913, and August 10, 1916 (Acts 1913, p. 977; Acts 1916, p. 784), and of certain contracts made between the railway company and the City of Macon, and to condemn. all such easements and interests as the Bibb Brick Company might have in such portion of Pine Street by reason of its holding, under renewal lease from the City of Macon for a period of thirty years from Feb. 23, 1915, a described tract of land in the City of Macon containing 7.61 acres, a part of the Macon reserve.</p> <p>The Bibb Brick Company filed a petition in which it is alleged: The land above mentioned was leased to it by the City of Macon upon the condition that it would maintain thereon a manufacturing plant; and in observance of this condition it has erected and is maintaining a plant of the value of $250,000. At the time of lease Pine Street was open and being used as a regular thoroughfare. There is practically no other means of access between plaintiffs plant and the business and residence portion of the city. The closing of the street will injure its business, decrease the value of its leasehold interest in said land, and greatly diminish the value of its manufacturing plant. Plaintiffs interest cannot be condemned without joining its lessor, the City of Macon, for which there exists no authority of law; and the proceeding cannot be maintained. While defendant has procured from the City of Macon a contract purporting to waive being made a party to any condemnation proceeding, this contract is contrary to law and ultra vires; and any law purporting to authorize such a contract is unconstitutional and void, because in violation of art. 7, sec. 6, par. 1, and of art. 7, sec. 16, par. 1, of the constitution of Georgia, and because not authorized by any valid corporate action on the part of the city, and because there has been no valid corporate action justifying the closing of Pine Street, or in acceptance of the underpass, subway, or other street in lieu thereof. The condemnation proceeding is illegal, because it does not state the particular railway purpose for which it is sought, the notice simply stating that it is “for railway purposes;” because the condemnation of the easements and interest of plaintiff in the portion of Pine Street to be occupied is not reasonably-necessary to any purpose for which defendant is authorized by law to exercise the power of eminent domain, and by said condemnation proceeding defendant is not seeking the right to use any of said portion of Pine Street for any purpose for which it would be authorized to exercise such power; because the acts of the General Assembly and the contracts between the defendant and the City of Macon, in so far as they purport to authorize said condemnation proceeding, are void and in violation of art. 1, sec. 10, par. 1, of the constitution of the United States, which ■ forbids the passage of any law impairing the obligation of contracts, and of art. 3, sec. 7, par. 8, of the constitution of Georgia, forbidding the passage of any law which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof. The prayers are, for injunction against “taking any steps or doing any acts in furtherance of the prosecution or carrying on of said condemnation proceedings” by defendant, and for process.</p> <p>TJpon the interlocutory hearing the court denied an injunction. Subsequently, as appears from the answer filed by defendant, the Bibb Brick Company named its assessor under the -condemnation proceeding. The assessors made an award of damages, the amount of which was tendered by the defendant and- accepted by the plaintiff ; and none of the amount so received has been tendered back.</p> <p>When the matter came on for final trial the defendant moved for the direction of a verdict in its favor, upon the grounds that the evidence showed (a) that because of its participation in and acceptance of the amount awarded under the condemnation proceedings the plaintiff was estopped from attacking the validity of these proceedings or asking any relief under its bill; (&) that the act sought to be enjoined had been done, plaintiff taking part therein and accepting the award made, and there was nothing to enjoin, or any relief shown to which plaintiff is entitled; (c) that it would be inequitable and unjust to allow a verdict for the plaintiff, when the evidence discloses that it refuses to do equity or give effect to the equitable rights of defendant, having accepted the money paid under the award and refusing to return it. The plaintiff’s counsel stated in open court that it would repay the amount it had received under the condemnation proceeding if the defendant would reopen Pine Street as it was when this suit was filed. The defendant’s counsel stated that this was impossible. The court directed a verdict in favor of the plaintiff, granting the injunction as prayed, and entered a decree accordingly. The main bill of exceptions assigns error upon the refusal to direct a verdict in the defendant’s favor, and upon the direction of the verdict in favor of the plaintiff. The cross-bill of exceptions taken by the plaintiff assigns error upon the rejection of certain evidence relating to the question whether the easements and interest sought to be condemned were reasonably necessary to any purpose for which defendant would be authorized to exercise the power of eminent domain.</p>

<p>Complaint for land. Before Judge Hammond. Bichmond superior court. July 15, 1918.</p>

<p>Equitable petition. Before Judge Hammond. Bichmond superior court. June 15, 1918.</p>

<p>Application for discharge from custody. Before Judge Park, Johnson superior court. June 15, 1918.</p>

<p>Equitable petition. Before Judge Littlejohn. Macon superior court. July 3, 1918.</p>

<p>Indictment for murder. Before Judge Eve. Worth superior court. August 10, 1918.</p>

<p>- Temporary alimony. Before Judge Crum. Ben Hill superior court. July 2, 1918.</p>

<p>Under the express provisions of our statute upon the subject of trusts, no express trust can be created by parol in this State; and upon the application of this statutory provision to the facts stated in the petition the court properly sustained the demurrer to so much of the petition as sought to have the debt due the petitioner declared and decreed to be a trust debt.</p>

<p>Temporary alimony. Before Judge Searcy. Fayette superior court. September 23, 1918.</p>

<p>Indictment for murder. Before Judge Harrell: Calhoun superior court. October 2, 1918.</p>

<p>Injunction. Before Judge Crum. Wilcox superior court.. November 2, 1918.</p>

<p>Equitable petition. Before Judge Crum. Crisp superior court. October 29, 1918.</p> <p>Miss Lizzie Hill filed her petition for specific performance, with an alternative prayer for damages, against Mrs. Grace Hill. The petition alleged, that J. B. Hill, the brother of the plaintiff, died on October 12, 1916, leaving an estate of real and personal property of the-approximate value of $150,000; that Mrs. Grace Hill, the wife and sole heir at law of the deceased, qualified as his administratrix on October 30, 1916, and letters of dismissal were granted to her on October 1,1917; that the plaintiff’s claim was not .presented to the administratrix, who had no knowledge of the existence of the claim prior to her discharge; that plaintiff and her brother, J. B. Hill, and her mother lived for some fourteen or fifteen years together; that the mother died on April 8, 1915, and thereafter petitioner contemplated “breaking up housekeeping and dividing her time with her brothers;” that J. B. Hill, at that time a bachelor with no prospect of marriage, prevailed upon your petitioner and agreed and contracted with her, “if she would not break up hig home and cease to keep house for him, that is, if she would continue the home as it had been conducted prior to their mother’s death, that he would make provisions sufficient for her to live on the remainder of her life;” that, relying upon this agreement, petitioner maintained the home as it had been maintained prior to her mother’s death, and “kept the house for J. B; Hill, making a home for him as she had agreed to do, and which was done to the satisfaction of the said J. B. Hill up to the time of his death;” that he failed to make provision for her according to the understanding aforesaid, although he had dictated a will in which plaintiff was named as legatee, but the said J. E. Hill died “unexpectedly and mysteriously,” leaving the will unexecuted; that $150 or more per month is necessary to maintain plaintiff in the manner in which she is accustomed to live; that defendant, the widow of J. E. Hill, refused to carry out the agreement of her deceased husband, although she is now in possession of all of the estate owned by him at the time of his death; that the estate owes no other debt; and that the defendant is the sole heir at law of J. E. Hill,- deceased. The, defendant demurred to the petition, upon the grounds, that it stated no cause of action, and no proper party defendant; and that under the allegations, the estate having been fully administered and the administratrix dismissed, action can not be maintained against the sole heir at law of the intestate. The demurrer was sustained and the petition dismissed; and the plaintiff excepted.</p>

<p>Claim. Before Judge Walker. Taliaferro superior court, October 17, 1918.</p>

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

<p>Mandamus. Before Judge Hodges. Oglethorpe superior court. April 27, 1918.</p>

<p>Equitable petition. Before Judge Park. Morgan superior court. June 6, 1918.</p>

Ejectment. Before Judge Mathews. Bibb superior court. July .17, 1918. . - Ellen Ringwood brought ejectment against. Charlie Boyington, for the recovery of 12 acres, more or less, of described land, and .for mesne profits. The defendant filed the plea of not guilty.

The Court of Appeals certified (in Case 9812) to the Supreme Court two questions, the nature of which is sufficiently shown by the answers to them in the headnotes.

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

<p>Partition. Before Judge Littlejohn. Stewart superior court. June 22, 1918.</p>

<p>Upon the call of a claim case in which the entry of levy showed the defendant in fi. fa. to have been in possession, and the claimant failed to assume the burden of proof and to proceed, but without objection permitted the plaintiff in execution to assume the burden of proof and to open and conclude the introduction of evidence (each side introducing evidence), it was erroneous, after the evidence had closed and before the argument began, to allow the claimant to open and conclude the argument to the jury.</p>

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

<p>The foregoing rulings are in response to questions propounded by the Court of Appeals (in Case No. 9386), as follows:</p> <p>“This was a suit brought to the superior court of Screven county by the receivers of the Citizens & Screven County Bank, against the National Bank of Savannah, J. E. Jaudon, and W. J. Walker. According to the petition Walker was a resident of Screven county, while the other two defendants were residents of Chatham county. The- petition charged that the three defendants had conspired to, and actually did, in pursuance of such conspiracy, withhold from the plaintiffs certain collateral notes and other securities which had previously been fraudulently pledged by the Screven County Bank to the Savannah Bank- to secure an antecedent indebtedness of the former bank to the latter bank. These notes and securities were set out in the petition. Unless the conspiracy between the three defendants was shown, the trial court had no jurisdiction over two of them — the National Bank of Savannah and J. E. Jaudon. The alleged conspiracy between the three defendants was set forth in the petition as follows: ‘On or about the 27th day of November, 1915, or shortly prior thereto, the said defendants, W. J. Walker, the National Bank of Savannah, and J. E. Jaudon, entered into a conspiracy for the purpose of withholding from said receivers, under said illegal and void pledges, the said collateral notes and other securities herein referred to, and for the purpose of converting them to the joint use and benefit of the said defendants, the said W. J. Walker, the said National Bank of Savannah, and J. E. Jaudon. Petitioners further charge, that, in furtherance of the said conspiracy, the said W. J. Walker, the National Bank of Savannah, and J. E. Jaudon did withhold from the said receivers, under said illegal and void pledges, the said collateral notes and other pledges herein referred to, and; on or about the said date, to wit, on or about the 27th day of November, 1915, the said W. J. Walker, the National Bank of Savannah, and J. E. Jaudon converted to their own joint use and benefit the collateral notes and other securities so pledged; that cm or about the 27th day of November, 1915, the date of the said conversion,, the said collateral notes and other securities had an actual value of the sum of $60,000 or other large sum.</p> <p>“1. Was the alleged conspiracy sufficiently set forth to make the petition good as against a general demurrer? In this connection the attention of the court is called to the repeated rulings of the Supreme Court, that where a petition is good in substance it should-not be dismissed on general demurrer for defects, which could be cured by amendment; such defects should be attacked by special demurrer. 56 Ga. 390; 79 Ga. 164 (2); 89 Ga. 601 (2); 89 Ga. 646 (3); 91 Ga. 217.</p> <p>“2. If the petition was good as against the general grounds of the demurrer, was it subject to the special grounds which attacked it because of the alleged lack of sufficient facts or overt acts to support the charge of conspiracy between the three defendants? See, in this connection, Woodruff v. .Hughes, 2 Ga. App. 361; 5 Stand. Ene. Proc. 323; 12 Corpus Juris, 629, § 215; 4 Enc. PI. & Pr. 738; Van Horn v. Van Horn (N. J. Sup.), 10 L. H. A. 184; Davis v. Johnson 101 Eed. 952.”</p>

Petition for injunction. Before Judge Meldrim. Chatham superior court. July 16, 1918.

<p>Petition for injunction. Before Judge Cobb. Jackson superior court. July 8, 1918.</p>

<p>Certiorari; from Court of Appeals. %% Ga. App. 558 (96 S. E. 444). ■</p> <p>Buchanan sold a house and lot to Jones and his wife, giving them a bond for title, and taking notes for the purchase-money. For value these notes were transferred to Owens. The purchasers of the property transferred their bond for 'title to one Smith. Smith agreed to assume the debt represented by the notes of Jones and his wife, and agreed to pay the debt. Subsequently Owens, for a valuable consideration, which was in part receiving additional security, extended the time for the payment of the notes. Smith failed to pay the notes when they finally fell due. A part of the purchase-money was realized upon a judgment obtained against Smith, and suit was then brought against the original debtors, Jones and his wife. The latter filed their plea and answer. Among other contentions made in the answer was, that under the facts of the case these defendants became merely sureties on the debt and Smith the principal debtor, and that the talcing of additional security and the extension of the time for the payment of the notes operated to release them. . This defense was stricken upon demurrer. By way of amendment J ones and his wife pleaded that the notes were based upon an illegal and immoral consideration, alleging that “Frank C. Owens purchased said note from Claude E. Buchanan, well knowing that said house was built for a house of prostitution and was then being used as a house of prostitution by these defendants, and that said note was given for said house with the understanding that said house was to be used as a house of prostitution. That said Frank C. Owens investigated the purposes for which §aid house was built by inquiring of each of these defendants and by personally visiting and inspecting said house, and that the consideration of said note was immoral and therefore illegal and void and of no 'force and effect. That said Frank C. Owens knew that said house was upon Mechanic Street in a restricted district of the City of Atlanta, upon which were conducted only houses of prostitution, and that said house was capable of no other use but for such purpose, and that the said Chas. C. Jones and Mrs. Ola E. Jones intended at the time of purchasing same that it was to be used for no other purpose, and that the said defendants, Chas. C. Jones and Ola E. Jones, did not intend to use it for any lawful purpose.” The defense set up by this amendment was stricken upon general demurrer urged by the plaintiff. The case, after verdict and judgment in favor of the plaintiff, was carried to the Court of Appeals for review, and that court affirmed the judgment of the court below, and that judgment of affirmance is brought by writ of certiorari to this court.</p>

Indictment for murder. Before Judge Hodges. Madison superior court. June SO, 1918. Joel T. Fitzpatrick, otherwise known as Blue Bird Fitzpatrick, was indicted for the murder of Jack Embry. On the trial the jury returned a verdict of guilty, with a recommendation to the mercy of the court. The defendant excepted to the refusal of a new trial. The evidence tended to show that he and Embry and some other persons had gone into a schoolhouse about sunset to play at cards.

<p>Injunction. Before Judge Wright. Floyd superior court. September 24, 1918. ‘</p>

<p>A judge of a city court is not authorized to grant or refuse an injunction in vacation.</p>

<p>Habeas corpus. Before Judge Meldrim. Chatham superior court. October 25, 1918.</p>

<p>Certiorari; from Court of Appeals.</p>

<p>1. Where one is elected to a municipal office by the mayor and council for a term ending on a specified date, .and is thereafter re-elected for another term, and continues, after the date of expiration of the first term, to perform the duties of the office, his omission to take the oath of office for the new term is a mere irregularity, unless there is a refusal of such character as will constitute a declination of the new term.</p> <p>2. After the beginning of such new term, under the facts of this case, the performance of the duties of the office as above stated will be construed as falling within the new term.</p> <p>3. Where the statute creating such office provides: “Nor shall any person acting as recorder of said court be.eligible to any other office in the City of Athens during the term of his office as recorder,” such officer is ineligible to any other office in such eity during the term for which he has been chosen; and his resignation can not affect such ineligibility. The court did not err in rendering a judgment accordingly.</p>

<p>The sheriff, his deputy, and a policeman, prior to the institution of this action, for injunction, found a barrel of whisky buried in the ground in the defendant’s stable, and two other barrels buried in the ground on or near the defendant’s premises. The statute (Acts Ex. Sess. 1915, p. 88, see. 20) made it the duty of the officers who found the prohibited liquor to seize the same that it might be forfeited to the State and condemned to be destroyed as the statute provides. It must be presumed that the officers discharged such duty; and if so, the nuisance, if such, under the prohibition law, was effectually abated; and it was error, under the facts of this ease, to grant an interlocutory injunction against the defendant, enjoining him from thenceforth receiving intoxicating liquors and from having such liquors in his possession, custody, and control until the further order of the court, there being no evidence that he intended in the future to receive and have such liquors in his possession, custody, or control.</p>

Questions certified by Court of Appeals (Case No. 9737). The Court of Appeals certified the following questions: “1.

<p>1. A senior unrecorded deed loses its priority over a junior recorded deed for value from the same vendor, taken without knowledge or notice of the . existence of the senior deed. To destroy the title of a purchaser for value, acquired by prior registry, it is essential that the purchaser should have notice of’a prior subsisting outstanding title.</p> <p>2. Possession of land is notice of whatever right or title the occupant has; but in addition to other essential elements of possession, it must be present, visible, and- open.</p> <p>3. The possession relied upon in this case to prove notice is held insufficient for that purpose.</p>

<p>Complaint for land. Before Judge Tarver. Bartow superior court. July 9, 1918.</p>

Certiorari; from Court of Appeals. 22 Ga. App. 504. The Water Power and Mining Company of Georgia, a corporation, sued out a disposscssory warrant against Arnold, for the purpose of evicting him as a tenant holding over. Arnold filed a counter-affidavit, in which he denied the tenancy, but asserted that he was in- possession of the premises in his own right.

<p>Certiorari; from Court of Appeals. 22 Ga. App. 374.</p>

<p>Injunction. Before Judge Pendleton. Eulton superior court. July 18, 1918.</p>

<p>Where a person who was indicted for the crime of murder was convicted of voluntary manslaughter, he was not entitled as a matter of right, -pending his motion for a new trial, to demand that he should be admitted to bail; but whether bail should be allowed him or not was a matter within the sound discretion of the presiding judge.</p>

<p>1. Where a petition for habeas corpus was brought against the father of a child some nine years old, to secure possession of the child, and it was alleged that the defendant had relinquished his claim to the child and had “given said child to petitioner [she being the sister of the deceased wife of the defendant], and said defendant did release his right to the said [child in question] and gave same to your petitioner,” and that since the death of petitioner’s said sister, some four years previous to the bringing of the petition, petitioner had had absolute custody and control of the child, but that shortly before the bringing of the petition the defendant, without any legal warrant or authority, had illegally taken possession of the child and carried 'it away and was keeping the custody of the child at his residence; • and where the court overruled a general demurrer to the petition, an exception to the judgment overruling it, based upon the-ground that “the petition did not show a sufficient consideration for the alleged contract,” was without merit.</p> <p>2. Prima facie the right to the custody of an infant is in the father; and where this is resisted upon the ground that the father has relinquished his parental rights by contract, a clear and strong case must be made, and the terms of the contract, to have the effect of depriving the father of his control, must be definite and certain. Such a ease was not made by the evidence on the trial before the ordinary; and the award of the child to the applicant, by which the father was deprived of its custody, was error.</p>

<p>Petition for injunction. Before Judge Wright. Walker superior court. August 28, 1918.'</p>

Equitable petition. Before Judge Wright. Whitfield superior court. October 19, 1918. . As amended, the petition alleges substantially the following: Williams sold to Segers seven lots of land among which were two lots called the Spann and Prater lots. The consideration for all of the lots was $16,000, payable $1,000 in cash and the balance in installments evidenced by promissory notes, the first of which, for the principal sum of $5,500, became due January 1, 1915.

<p>Action upon bond. Before Judge Jones. Habersham superior court. September 21, 1918.</p>

<p>Indictment' for murder. Before Judge Thomas. Thomas superior court. November 30, 1918.</p>

<p>Questions certified by Court of Appeals (Case No. 9391).</p>

<p>Habeas corpus. Before Judge Elynt. City court of Dublin. July 8, 1918.</p>

<p>Equitable petition — intervention. Before Judge Summerall. Ware superior court. August 31, 1918.</p>

<p>Where by the terms of an option contract the optionor obligates himself to sell described lands upon the payment of the purchase-price on a day fixed, the optionee, in order to raise a binding promise on the part of the optionor to sell, must make his election and offer to perform within the time stipulated in the option contract. An election after the time limited has expired, coupled with an offer to perform, will not entitle the optionee to have the contract specifically performed.</p>

<p>Petition for injunction. Before Judge Thomas. Lowndes superior court. October 22, 1918.</p>

Equitable petition. Before Judge Searcy. Epson superior court. November 9, 1918. In 1864 William T. Garland willed Ms entire estate “to be the property in absolute fee simple” of Ms wife, Sarah A. Garland, and four named children, to be equally divided in kind among them upon the youngest child becoming of age, marriage of the widow, or upon, marriage of any of the children before attaining majority, proper allotment to be made by the wife to such child.

The Court of Appeals certified, for the instructions of tbe Supreme Court, the following questions (in Case No. 9324): “J. S. & W. P. Brooks gave to Malsby & Company a note, of which the following is a copy: ‘ $112.50. Dated at Zebulon, Ga., on Nov. 11, 1910.

<p>Condemnation under liquor law. Before Judge Collins. City court of Beidsville. July 30, 1918.</p>

<p>Indictment for murder. Before Judge Kent. Laurens superior court. August 31, 1918.</p>

Exceptions to auditor’s report. Before Judge Cobb. Jackson superior court. May 11, 1918. The Jefferson Banking Company filed a petition against the Jefferson Cotton Mills, a corporation, to recover the amount alleged to be due upon an unsecured promissory note, alleging that tbe defendant was insolvent. There was a prayer for a receiver, and for judgment for the amount claimed to be due.

<p>Indictment for murder. Before Judge Tarver. Whitfield superior court. September 9, 1918.</p>

<p>Exceptions to auditor’s report. Before Judge Mathews. Bibb superior court. August 7, 1918.</p>

<p>Description and counsel as in case next before.</p>

<p>Injunction.' Before Judge Eve. Tii't superior court. December 21,’ 1918.</p>

Habeas corpus. Before Judge Hill. Eultou superior court. December 13, 1918. Buth Samuels filed a petition for a -writ of habeas corpus, alleging that she was unlawfully detained by Thomas B. Lanford, superintendent of the city.prison of Atlanta, under an act of the General Assembly alleged to be void.

<p>1. The verdict, being unsupported by the evidence, was unauthorized by law.</p> <p>2. An assignment of error held too indefinite to present any question for decision.</p> <p>3. An instruction to the jury held not erroneous for want of pleading as a basis for it.</p>

<p>Claim. Before Judge Ellis. Fulton superior court. July 3, 3918.</p>

<p>Claim. Before Judge Walker. Glascock superior court. August 20, 1918.</p>

<p>Complaint for land. Before Judge Bartlett. Paulding superior court. August 7, 1918.</p>

<p>Indictment for murder. Before Judge Thomas. Berrien superior court. December 14, 1918.</p>

Indictment for murder. Before Judge Littlejohn. s Sumter superior court. April 1, 1919. The plaintiff in error was found guilty of murder, the jury recommending bim to mercy. He excepted to the refusal of a new trial.

<p>Accusation of misdemeanor. Before Judge Bigsby. City court of Cairo. February 26, 1919.</p>

<p>Exceptions to auditor’s report. Before Judge Thomas. Grady superior court. June 21, 1918.</p> <p>While an equity suit instituted by the State against the Bank of Whigham as an insolvent institution, in which receivers had been appointed, was pending in the superior court, Mrs. Fannie May Lane filed a petition alleging that in 1912 she became indebted to the Bank of Whigham in the sum of $773.33, and made a deed to that bank, conveying certain described property to secure this debt, subsequently increasing the loan to $1,000; that the note evidencing said debt was to become due on December 1, 1915; that W. J. Buby, a resident of Kentucky, became the holder of the note, and he presented it to petitioner and demanded payment; that she refused to pay it without having the receivers of the bank reeonvey to her the property given to secure the debt; that Buby did not hold the security deed; and that the Bank of Whigham sold or transferred the note, but did not sell or transfer the security held for its payment. She prayed, that Buby be cited by publication to appear before the court to show cause why he should not be made a party defendant and to abide by and perform the judgments and decrees of the court; that he be required to produce in court the note payable to the Bank of Whigham, and that the same be marked paid and cancelled by the clerk of the court; that petitioner. be allowed to pay into court all of the principal and interest due on the note, less certain credits, and be discharged from further liability; and that the receivers.be required to execute to her a deed to the property conveyed as security for said debt, upon her paying the principal and interest. Buby filed an answer setting up that he purchased for a valuable consideration and became the owner, before due, of the note executed by Mrs. Lane for $1000, payable to the Bank of Whigham, and indorsed in blank, “Bank of Whigham, E. B. Stapleton, Cashier;” that he purchased the note thirty days after it was executed; and that upon payment of said indebtedness he is ready and willing to cancel and surrender “said note and mortgage,” and “he further consents for the receivers of the Bank of Whigham to reconvey title to the plaintiff; but he further contends, as the legal owner and holder of said indebtedness. that the court should order the funds so paid into court immediately paid over to this defendant or his attorneys, for which he here and now prays.” Afterward the court, upon consent of counsel, passed an order, on August 28, 1917, referring the cause and all interventions filed therein to T. S. Hawes as auditor, who was directed to pass upon all questions of law and fact and the priority of all claims, and to report his findings to the court. Counsel were allowed ten days after the filing of said report in which to file exceptions thereto. The auditor was authorized'to allow or reject, amendments, and to dispose of all demurrers. When the case was before the auditor for hearing, the receivers of the Bank of Whigham filed their answer in which, among other things, they set up that W. J. Buby had converted to his own use certain notes and certain stock certificates belonging to the Bank of Whigham; and that. Buby being a non-resident of the State, the receivers were without adequate, remedy at law to recover the property or its value from said Buby, unless allowed to set up their claims in this proceeding; and they prayed judgment for the amount of the collateral notes held by Buby in the sum of $12,-120.18, with interest. At the same time the Hanover National Bank of New York filed an answer alleging that Buby, after the failure of the Bank of Whigham and with knowledge of its condition, acquired from that bank, through O. C. Spence, possession of certain notes of W. B. and J. W. Johnson, of J. H. and H. E. Collins, ahd of Mrs. Fannie May Lane, said notes being the property of the Hanover National Bank. The answers of the receivers and of the Hanover National Bank were taken under consideration by the auditor without objection upon the part of Buby, who acknowledged service on the interventions. With the pleadings so made up the auditor heard evidence, in the course of which Buby was examined as a witness, and, without objection to the evidence or to a consideration by the auditor of the issues between the receivers and Buby as set out in their respective answers to the intervention filed by Mrs. Lane, delivered testimony upon the issues and was present, and otherwise participated in the trial of the case.</p>

<p>Injunction. Before Judge Eve. Worth, superior court. October 5, 1918.</p> <p>Jack Hobby applied to the court of ordinary to be appointed administrator of the estate of Jesse Hobby. The application alleged, that the applicant was a citizen of this State, residing in the county where the application was made; that the deceased died intestate, and a resident of such county, leaving an estate of real and personal property of the probable value of three thousand dollars, and that under the law it was necessary that the estate be administered; that the decedent was the father of the applicant; and that he had been selected by a majority of those interested as distributees of the estate to be appointed-as administrator. A citation was ordered to be issued and published. To the application Mrs. Ford filed a caveat on the ground that there was no necessity for an administration on the estate, for the reasons: (a) that the decedent at the time of his death owned some personalty, and a described tract of land; that by consent of the heirs at law all the personalty was sold and the proceeds used in payment of the debts against the estate, and therefore ihe estate owed no debts: (b) that prior to hi? deafli tbe decedent owned a certain Jot of land containing 202y2 acres more or less; that he conveyed to each of three of his children (naming them, one of whom was the applicant for administration) 25 acres of the lot of land as an advancement to them, thus leaving approximately 125 acres of the lot to be divided among the other five children, the caveatrix being one of them; that these five children were therefore owners as tenants in common of the remaining 125 acres, being all of the land owned by the decedent when he died; that this land could, under the statute providing for the partition of lands, be distributed among them; and that "should there be any controversy as to the amount of land that should be divided, or among whom same should bo divided, these questions could not be settled by a court of ordinary, it not having the power or jurisdiction, and that it would be necessary that a division or partition be had before the judge of the superior court, or before the superior court of said county.” The caveat closed as follows: "Wherefore the caveatrix prays that such application be denied, and that the applicant be not appointed administrator on the said estate, and that administration be denied thereon.”</p> <p>On July 1, 1918, at the July term of the ordinary’s court, a judgment was rendered against the caveat and the objections set forth therein, and appointing the applicant administrator of the decedent, and ordering that letters be issued to him as such upon his giving bond with approved security in the sum of $6000, and taking and subscribing the oath as provided by law. No appeal was entered from this judgment, and within five days after its rendition the applicant, as administrator, executed a bond in accordance with the judgment, which bond was approved by-the court of ordinary. The oath was taken, and on the same date letters of administration were issued to him. Before he qualified as administrator, Mrs. Ford, who had resisted his application for administration, brought an equitable petition against him as an individual, and all the other heirs of the intestate, the allegations of the petition being in effect the same as the objections set forth in her caveat to his application for administration; the petition further stating that Hiram Bozeman and his two minor children, the husband and children of a deceased granddaughter of the intestate, Jesse Hobby, were as his heirs entitled to one share of his estate. They were made defendants to the petition. It was further alleged that Jack Hobby, and another one of the heirs, Dice Hobby, were indebted to the estate in a stated amount as the balance due for rent for the years 1917 and 1918 of the land of which the intestate died seized and possessed. Another allegation was to the effect that the. tracts of 25 acres each, deeded respectively to Jack Hobby and two other named heirs of the intestate, were intended by the testator as advancements to the grantees of all their interest in the lands of the intestate, and were so accepted by them, but they were contending that this was not true; and that Jack Hobby was applying for administration on the estate with a declared purpose as administrator to divide or distribute the remaining 125 acres of land among all of the eight heirs, and unless enjoined he would proceed to carry out his declared purpose, thus depriving petitioner and taking from her, as well as the other heirs who had not received advancements, “a substantial portion of their shares in the said realty, and of their shares in the said estate.” Further, that “the money that the said Jack Hobby and Dice Hobby have in their hands on account of the rents . . can be easily distributed without administration; that the said land can be easily divided in kind, it being to the interest of all parties interested that same should be divided in kind, and all of the said five, this petitioner and the four others, who claim the said entire tract of land remaining, insisting and desiring that the same be divided among them in kind; and should it be determined that the eight should share, then the petitioner still insists and avers that it should be to the interest of all concerned to divide it in kind, and that it is not necessary in any event that the same be sold for distribution, and that it is not necessary that there he any administration on the said estate, the proceeding provided for by statute being ample and sufficient for the purpose of dividing the same in kind.” The prayers were, that process issue to all of the heirs named in the petition : that Jack Hobby be restrained from proceeding to qualify as administrator of the intestate, and from taking any steps toward' selling the land; that the controversy as to the persons entitled to share in the land or its proceeds be determined, and their respective shares be fixed; “that partitioners be appointed, as provided by law, to partition the said land in kind among those found to be entitled to same, and that each one’s share, particularly that of petitioner, be admeasured and set apart, and due return and record thereof made;” and that Jack Hobby and Dice Hobby be required to account for the rents and profits of the land for the two years during which they had been in possession of it, “and that they be required to pay the same into court, or to some one authorized by the court to receive the same, and that same be distributed to those entitled to same.” There was a further prayer for general relief. Upon presentation of the petition the judge, on July 2, 1918, granted a temporary restraining order, as prayed, against Jack I-Iobby. All of the defendants, except Bozeman and his minor children, were either served or acknowledged service, prior to the date on which Jack Hobby executed the bond and took the oath as administrator.</p> <p>When the case came on for a preliminary hearing under the order of the judge, the petition was demurred to on the ground that the allegations thereof did not authorize a court of equity to take jurisdiction, as it appeared that the court of ordinary had already assumed jurisdiction, and that the petition failed to show that any damage or loss was threatened to the interests of the plaintiff. Jack Hobby, Dice Hobby, and Worsham, the defendants to each of whom- it was alleged the intestate had conveyed 25 acres of land as an advancement, answered, denying the material allegations of the petition. To the answer was attached as an exhibit a copy of the proceedings and judgment in the ordinary’s court, and of the bond, oath, and letters of administration. The following amendment to the petition was allowed: “That the defendant Jack Hobby now comes into court and shows that he is the duly qualified administrator of the estate of Jesse Hobby, deceased, and makes answer to that effect and in that capacity. . . That the said Jack Hobby, in his capacity as the administrator of the said estate, be made a party defendant; and that the prayers of the original petition apply to him in his capacity as the administrator of the said estate as well as at) individual; and that he be bound by the adjudication of the issues involved in regular course in both capacities, as an individual and as administrator of said estate.”</p> <p>After the submission of much evidence by both the plaintiff and the three defendants who answered, the court rendered judgment “that the plaintiff is lawfully entitled to a portion of the relief which she asks;” and “ordered that Jack Hobby, individually and in his capacity as administrator of the estate of Jesse Hobby, late of the county of Worth, be and he is hereby restrained and enjoined, pending the further order of this court, from taking any steps toward selling or m any manner incumbering the land described in plaintiff’s petition, and trom doing any further act toward the administration or distribution of the same.” To this judgment Jack Hobby excepted.</p>

Indictment for murder. Before Judge Cobb. Walton superior court. December 13, 1918. The plaintiff in error was convicted of murder, with a recommendation that he be punished by imprisonment for life. He excepted to the refusal of a new trial.

Indictment for murder. Before Judge Cobb. Walton superior court. December 13, 1918. The plaintiff in error was found guilty of murder, tbe jury recommending a sentence of life imprisonment. He excepted to the refusal of a new trial.

<p>Indictment for murder. Before Judge Wright. Floyd superior court. April 8, 1919.</p> <p>The plaintiff in error was convicted of murder, without recommendation. He excepted to the refusal of a new trial.</p>

<p>Indictment for murder. Before Judge Graham. Treutlen superior court. April 5, 1919.</p> <p>T. E. Coleman shot and killed his son-in-law, N Berger The killing occurred in the restaurant of the latter. On the night of the homicide, Coleman, in response to a request from Berger, went to the restaurant to settle a dispute between the deceased and his wife. When he reached the restaurant Coleman invited the bystanders to leave the room, and closed the door. He then inquired as to the cause of the difficulty between the deceased and his wife. Coleman contended that the deceased then repeated to and of his wife, and in the presence of the accused, a vile epithet, at the same time making an effort to get a butcher-knife lying upon a table near where the deceased was standing, and that he shot in self-defense. The evidence for the State tended to show that Coleman killed the deceased solely on account of the repetition of the epithet, and that there were no circumstances of justification or extenuation. The jury returned a verdict finding the accused guilty of the offense of murder, with a recommendation to mercy. He made a motion for new trial on the general grounds, which was subsequently amended. The amendment complains of several charges given by the court to the jury, but in substance the errors assigned may be summarized as follows: (1) Because the court failed to state in the charge to the jury what “equivalent circumstances,” as set forth in section 65 of the Penal Code of 1910, would reduce the crime from murder to voluntary manslaughter; it being contended that this principle of law, under the facts of the ease, should have been elucidated by the court, as the evidence showed that the deceased charged his wife with infidelity, and used to and of her, in the presence of the accused, vile and insulting language, and was endeavoring by violence or surprise to commit a felony upon the accused. (2) Because the court charged that opprobrious words or vile and insulting language alone, used to and of the wife of the deceased, the daughter of the accused, and in the presence of the accused, wordd not be sufficient to justify the excitement of passion and to reduce, the killing from murder to manslaughter under section 65 of the Penal Code of 1910. (3) Because the court, in connection with his charge defining voluntary manslaughter, and in connection with that portion of the charge in which he instructed the jury that “provocation by words,. threats, menaces, or contemptuous gestures shall in no case be. sufficient to free "the person killing from the guilt and crime of murder” where the killing is done solely on account of and in resentment of such, provocation, failed to instruct the jury that words, threats, menaces, and contemptuous gestures could be considered by the jury under the doctrine of reasonable fears, and might, in connection with the facts and circumstances of the ease, be sufficient to justify the homicide. The court overruled the motion for new trial, and the defendant excepted.</p>

<p>Indictment for murder. Before Judge Graham. Bleckley superior court. March 29, 1919.</p>

Accusation of misdemeanor. Before Judge Bourke. City court of Savannah. June 22, 1918.

• The Court of Appeals certified the following question (in Cases Nos. 9894, 9895): “In a proceeding by the State of Georgia under the provisions of section 20 of the act approved March 28, 1917 (Ga.

<p>Injunction. Before Judge Pendleton. Fulton superior court. November 14, 1918.</p> <p>On November 11, 1918, Jake Wells filed his petition for injunction, in Fulton superior court, against the First National Exhibitors’ Circuit Inc., a Virginia corporation, C. E. Beaeham, its agent in Fulton county, Georgia, Criterion Theater Company, a corporation, of Fulton county, Georgia, Sig Samuels, its president, and Willard C. Patterson, its manager, both of Fulton county. Wells alleged, that the First National Exhibitors’ Circuit made a contract with him, on March SO, 1918, by which he, for a valuable consideration, was given the right to the exclusive presentation of the “first run,” in Atlanta, of the .series of moving pictures known as the “Eight Charlie Chaplin Special Peleases;” that in pursuance of the contract Wells exhibited the first of the series of said pictures, to wit, the picture called “A Dog’s Life,” and at the time of the filing of the suit he was about to exhibit another of the Charlie Chaplain pictures; that the Criterion Theater .Company had also made a contract with the First National Exhibitors’ Circuit, under which they claimed the right to present, concurrently with petitioner, the “first run” of the pictures in question in the city qi Atlanta, Georgia; that the Criterion Theater Company made its contract with knowledge that the Exhibitors’ Circuit had sold to petitioner the exclusive right to exhibit the picture; that the contract, the result of collusion and conspiracy .between the parties thereto, was made for the purpose of injuring petitioner, and the threatened injury is in fact irreparable in damages; and that the language and provisions of the contract made between the plaintiff and the Exhibitors’ Circuit were everywhere understood in the moving-picture world to grant the exclusive right to exhibit the series of pictures within the city designated in the contract. The Exhibitors’ Circuit, subject to its demurrers, general and special, filed its answer, in which it denied' that it had sold to plaintiff the right to the exclusive presentation of the Charlie Chaplain pictures in Atlanta, and denied the charge of collusion and fraud. It also denied injury and damage to the plaintiff by reason of the facts alleged in the petition; and especially averred that the damages were not irreparable, pleading in this connection a stipulation in the contract between it and the plaintiff, by which provision was made for the liquidation of damages in the event of a breach of the contract. It averred that it had the right to contract with the Criterion Company, and that its contract with that company was made in good faith. The Criterion Company, and its officers and agents who were made defendants, answered and denied the charges of fraud and conspiracy made in the petition. They denied that the plaintiff had, under his contract, the right to the exclusive presentation of the pictures named, and denied that he would be damaged by the concurrent exhibition of the pictures by the defendants under their contract; and averred that his damages, if any, were capable of computation. The clause of the contract between the plaintiff and the Exhibitors’ Circuit, under which the plaintiff claimed the right to the exclusive presentation of the pictures in question, is as follows: “Undersigned Exhibitor hereby leases from the First National Exhibitors’ Exchange eight Charlie Chaplin Special Releases six days on each release on..........of each week, first week after release date, and agrees to keep and perform the terms herein provided and pay the amounts as specified herein. Each subsequent release after the first to be used on the same day or days of the week at the same number of days after release date. Theater owner, Jake Wells. Theater name........... Seating capacity........... Street address ........... City Atlanta. Population 175,000. State Georgia. Price of the entire series of eight releases $2,000.00, to be paid- in installments as per contract below and on reverse side.” The clause providing for liquidated damages is as follows: “In ease either party hereto shall fail to keep, observe, or perform any condition of this .contract on his or its part to be kept, observed, and performed, the injured .party shall have and recover of the defaulter as liquidated damages, and not as a penalty, a sum equal to twenty-five per cent. (25%) of the unearned rental price reserved in this contract. This stipulation for liquidated damages is made because of the difficulty of proving actual damages in the event of any such default, the actual damages under such contracts as this being speculative and impossible to ascertain.”</p> <p>Upon the interlocutory hearing the evidence for the plaintiff tended to sustain the allegations of the petition. A large number of persons, prominent in the moving-picture world, testified, that the words in the contract, “first week after release date,” coupled with the designation of the city and the population thereof, were universally understood to give to the plaintiff absolute and exclusive priority in presentation during the first week after the release date on a given film; that the value of a picture consists in the fact that the “first-run rights” are sold exclusively in a given territory to one exhibitor; that “subsequent-run rights” in the same pictures are invariably very much less than the “first-run rights;” that the “simultaneous presentation” by two moving-picture houses in the city of Atlanta would very materially reduce the value of the picture to the exhibitor; and that the price stipulated in the contract, and which Wells agreed to pay for the right to exhibit the pictures in Atlanta, was the highest price theretofore paid for a like right in a city of the size of Atlanta. The plaintiff himself testified that the contract was understood to mean that he was to have the right to the exclusive presentation of the pictures during the period and in the city named in the contract; that he paid full value for the right; that the Exhibitors’ Circuit had knowledge of his understanding of the contract, and acquiesced in his interpretation of it before and after its execution, and had itself so construed like contracts made with him in other cities and covering the same series of pictures. His testimony also tended to show that the Criterion Company and its officers knew of the contract, undertook to make a contract with the Atlanta manager 'of the Exhibitors’ Circuit, were refused, and finally succeeded in closing a contract under which they claimed the right to exhibit the pictures in Atlanta with the Exhibitors’ Circuit directly. The evidence on behalf of the defendants tended to show that the contract between Wells and the Exhibitors’ Circuit did not confer upon the plaintiff the right to the exclusive presentation of the pictures; that the language of the contract did not give such exclusive right, and was not and is not understood in the trade to convey an exclusive right, but that the contract simply meant that the plaintiff should have the right to exhibit the pictures during the first week after the pictures were released by the Exhibitors’ Circuit, the distributors; that in all moving-picture contracts, when a sole or exclusive right is granted, the contract expressly so provides; that no custom or usage existed to the contrary; and that while the Criterion Company at the date of its contract had knowledge of the Wells contract, there was no fraud, collusion, or conspiracy between the defendants. There was also evidence to the effect that the picture had been exhibited by both theaters prior to the hearing, and that the plaintiff’s house was “crowded” during each performance.</p> <p>The.court passed the following order: “The above matter having come on for a hearing, and after the hearing and upon consideration thereof, it is ordered and adjudged that the prayers of the petition be granted, and the defendants and each of them be and are hereby' restrained and enjoined from exhibiting the picture in the City of Atlanta, 6a., known as ‘ Shoulder Arms, ’ as well as all and each of the series of eight eCharlie Chaplin Special Releases’ covered by the contract' set up in the petition in this case. The defendants may dissolve the restraining order and injunction by the giving of a joint and several bond by each of the defendants, First National Exhibitors’ Circuit Inc., and Criterion Theater Co., in the sum of ten thousand ($10,000.00) dollars payable to the plaintiff, the surety or sureties on said bond to be approved by the clerk of this court and such surety or sureties to become parties to this cause upon the signing and delivery of the bond and approval of same by the clerk. The condition of said bond shall be to answer the final judgment in the cause, whatever it may be, under the present pleading or under any amendment of same hereafter allowed by the court. Said bond to be filed by 4:30 o’clock p. m. this date.” Neither of the defendants excepted to the order, but gave the bond as provided therein. The plaintiff excepted to the judgment in so far as it allowed the defendants to dissolve the interlocutory injunction by the giving of a bond.</p>

<p>Indictment for murder. ' Before Judge Jones. Stephens superior court. December é, 1918.</p>

<p>Indictment for murder. Before Judge Wright. Floyd superior court. January 8, 1919.</p>

<p>Claim. Before Judge Wright. Floyd superior court. April 1, 1919.</p>

<p>Attachment for contempt. Before Judge Hammond. Jenkins superior court. March 10, 1919.</p>

Indictment for murder. Before Judge Littlejohn. Webster superior court. March 29, 1919. Colvin Johnson was tried on an indictment charging him with the offense of murder by the killing of his wife, Eula Johnson.

Although the bill of exceptions specifically assigns error upon rulings made during the progress of the ease in the trial court, and recites the rendition of a final decree and specifies that decree as a part of the record to be transmitted, yet if it contains no assignment of error on the final decree, the writ of error must be dismissed. The final decree must be excepted to, in order to obtain consideration of except tions to rulings preceding it.

<p>Equitable petition. Before Judge Terrell. Troup superior court. August 10, 1918.</p>

<p>Equitable petition. Before Judge Hardeman. Emanuel superior court. July SO, 1918.</p>

<p>Action to reform deed. Before Judge Highsmith. Camden superior court. July 29, 1918.</p>

<p>Equitable petition. Before Judge Hodges. ' Elbert superior court. September 10, 1919.</p>

<p>^"Petition for specific performance, etc. Before Judge Eve. Worth superior court.' September 21,. 1918.</p> <p>On October 31, 1902, Mary D. Harris, in consideration of $390, conveyed to G. E. Wright the north half of lot of land No. 222 in the 14th district of Worth county. On December 12, 1902, G. E. Wright, in consideration of love and affection, conveyed the same land to Mrs. G. E. Wright, his wife. The deed was properly executed and attested, but was not recorded. Eight years after the ' execution and delivery of the deed from Wright to Mrs. Wright, Wright executed and delivered to M. M. Gleaton, the plaintiff, a bond^ for title to the land, Gleaton paying $25 in cash, and giving his note to Wright for the balance of $2175, payable at a future date, to wit, 2 months and 26 days after the date of the bond. The bond for title was attested as a deed and admitted to record. Wright and his wife lived upon the land at the time of the execution and delivery of the bond for title to Gleaton. When the note given by Gleaton to Wright matured) the latter went to the home of Wright for the purpose of paying the note. He was then advised by Mrs. Wright that she was the owner of the land, and that her husband had no authority to make a sale of the same. (According to the plaintiff’s testimony he made a tender of the purchase-money before he received knowledge of Mrs. Wright’s claim.) Mr. Wright was not at home, but a short time thereafter Gleaton tendered to Wright $2175, according to the terms of the bond for title. Wright declined to accept the money, and stated to Gleaton that title to the land was in Mrs. Wright, and that she refused to ratify the sale made by him to Gleaton and refused to convey the land. Gleaton filed suit against Mr. and Mrs. Wright, praying for specific performance of the contract, and for cancellation of the deed made by Wright to Mrs. Wright. There was no alternative prayer for'damages. Upon the trial of the ease it appeared that at the time of the execution and delivery of the bond for title Gleaton had no notice or knowledge of Mrs. Wright’s claim to the' land. It also appeared that the mother of Mrs. Wright furnished and paid for Mrs. Wright a part of the purchase-price of the land in controversy. The note given by Gleaton to Wright was never transferred to any person. Both the note and the $25, with interest, were tendered ,to the plaintiff before the beginning of the trial of the case, and as a continuing offer both were, under the ordc« of the presiding judge, deposited for the plaintiff with the clerk of the court. At the conclusion of the evidence the court directed a. verdict for the defendants, and the plaintiff excepted.</p>

<p>Equitable petition. Before Judge Tarver. Catoosa superior court. September 10, 1918.</p>

<p>1. Where a .man has debauched a minor girl and induced her to abandon her parental abode and live with him in a state of adultery and fornication, and persists in a continuance of such conduct, equity will afford a remedy by injunction, and to that end, in a suit by the father, will enjoin the man from associating and communicating with the girl, either by writing, telephoning, or telegraphing, personally or through the aid or agency of any other person.</p> <p>2. Under the pleadings and the evidence in this case, the judge did not err in granting a temporary injunction.</p>

Mandamus. Before Judge Howard. Taylor superior court. December 24, 1918. The General Assembly of Georgia, by an act approved July 31, 1918, repealed a former act (Acts 1916, p. 504) approved August 17,1916, abolishing the office of county treasurer of Taylor County.

<p>Complaint. Before Judge Tarver. Catoosa superior court. March 9, 1918.</p>

<p>Petition for injunction. Before Judge Hodges. Madison superior court. February 5, 17, 1918.</p>

<p>Exceptions to auditor’s report. Before Judge Kent. Laurens superior court. June 15, 1918.</p>

Equitable petition. „ Before Judge Mathews. Bibb superior court. May 2, 1918. This was an action in the nature of a suit for specific performance. The petition was several times amended; and the defendant demurred generally and specially, and his demurrers were overruled. At the conclusion of the eyidcnce the court directed a verdict for the defendant. To this direction the plaintiff excepted.

<p>The amendment set forth a cause of action for renewal commissions earned, due, and unpaid at the time of the filing of the suit, and the court erred in dismissing it upon general demurrer.</p>

Mandamus. Before Judge Jones. Dawson superior court. August 5, 1918. The writ of error is to a judgment absolute rendered by the judge, to whom the case was submitted without the intervention of a jury.

<p>Indictment for murder. Before Judge Mathews. Bibb superior court. August 5, 1918.</p>

<p>Equitable action — intervention. Before Judge Hammond. Richmond superior court. August 26, 1918.</p>

<p>Equitable petition — intervention. Before Judge Hammond. Richmond superior court. August 26, 1918.</p>

<p>Equitable petition. Before Judge Summerall. Ware superior court. September 5, 1918.</p>

<p>Ejectment. Before Judge Highsmith. Glynn superior court. July 20, 1918.</p>

<p>Action for specific performance. Before Judge Tarver. Murray superior court. August 14, 1918.</p>

<p>Construction of will. Before Judge Cobb. Walton superior court. October 26, 1918.</p> <p>W. T. Foster, as surviving executor of the will of Mrs. Mary W. Sandidge, filed a petition in the superior court of Walton county, praying for the construction of the will and a codicil thereto, and for direction in administering the estate. The items of the will necessary to be considered in deciding the assignments of error set forth in the bill of exceptions are as follows:</p> <p>“Item 17. I give and bequeath to Alonzo H. Nunnally one thousand dollars in money, the same to be his full share of my estate, unless there should more come to him in the distribution of the residuum of my estate.”</p> <p>“Item 25. After the foregoing bequests have been complied with, it is my will that whatever remains of my estate, of cash, notes, stocks, bonds, household and kitchen furniture, books, pictures, china, silverware, and other personal and perishable property, be sold at public or private sale, as my executors may think best, or otherwise divided into three equal parts, and one part be given to my sister, Martha E. Foster, her heirs and assigns, one. part be given to my brother, G-. A. Nunnally, his heirs and assigns, and one part be given to my nephew, Alonzo H. Nunnally, his heirs and assigns.”</p> <p>The instrument was executed on January 31, 191A- Alonzo H. Nunnally, nephew of the testatrix, and named as a legatee in the above-quoted items, died intestate prior to the death of the testatrix, leaving a widow and six children surviving him, and who were' in life at the death of the testatrix. Alonzo H. Nunnally owned no realty when he died, and no administration has been had on his estate. After his death, which was known to the testatrix, she, on October 19, 1914, executed a codicil to her will. It is only necessary to consider so much of the codicil as follows:</p> <p>“3rd. The bequest in Item No. 25 of my will, where I had already willed my sister, Mrs. M. E. Foster, I now in addition to said bequest in said will give and bequeath to her the said Mrs. M. E. Foster and her heirs the oil paintings of myself and Mr. Mark Stroud, also all my room furniture and bedding and bedclothing of every kind. Also four thousand ($4,000) dollars in money, the four thousand ($4,000) dollars is to be paid from notes I have against W. H. Nunnally for the purchase-money for my storehouses sold by me to said W. H. Nunnally; and it is my request, if said note's are not due at the time of my death, that the said W. II. Nunnally is to give to Mrs. M. E. Foster his note for the interest to be yearly [paid] on four thousand ($4,000) dollars until said purchase-money notes become due.</p> <p>“4th. In addition to my bequest in my will in Item No. 17, to my nephew Alonzo.H. Nunnally, I now give and bequeath to [his] heirs at law an additional one thousand ($1,000) dollars, said amounts to be paid from notes I hold against W. H. Nunnally for the purchase-money-for my storehouses sold by me to the said W. H. Nunnally; and it is my request that if said notes be not due at the time, of my death, the said W. H. Nunnally is to give his note to the heirs at law of Alonzo H. Nunnally now deceased for the interest to be yearly [paid] on two thousand ($2,000) dollars until the purchase-money notes become due, and this shall be their full share of my estate.</p> <p>“5th. In addition to my bequest made in Item 25 in my will, for and in consideration of his promise to board and care for me during the balance of my life, I give and bequeath to my brother, G. A. Nunnally, my home in Monroe Georgia, where I now live, for and during his natural life, and at his death to be sold and equally divided between Alonzo H. Nunnally’s heirs at law, and J. W. Nunnally, Mell Nunnally, Mrs. Sarah Harrison, children of the late Mrs. Mary Briscoe Nunnally.</p> <p>“8th. I give and bequeath, should there be after all other bequests are fully paid, be left as much as one thousand ($1,000) dollars, that it he paid to the heirs at law of A. F. Nunnally equally, with the exception of W. B. Nunnally, who has already been provided for in the will.”</p> <p>The testatrix died on January 9, 1917, and her-will was duly probated in both common and solemn form. By agreement of all parties at interest the case was submitted to the judge to be'heard, and a decree rendered therein by him without the intervention of a jury. The will and codicil were put in evidence, but nothing further, save, as to the death, etc., of Alonzo H. Nunnally, as above stated! The conclusions reached by the judge were as follows:</p> <p>“1. The children of Alonzo H. Nunnally are entitled to $1,000 under item 17 of the will, and an additional $1,000 under item 4 of the codicil, making their legacy $3,000 in the aggregate. The word ‘heir' is construed ‘children,' and this excludes the widow of Alonzo H. Nunnally. The intention of testatrix is to make bequest under item 4 of the codicil, which carries forward the bequest under. item 17 of the will the entire interest of the children of Alonzo H. Nunnally under the will; but this does not prevent them from taking as remaindermen under item 5 of the codicil.</p> <p>“3. Item 5 of the codicil creates a life-estate in G. A. Nunnally in the house and lot therein referred to, and upon his death the proceeds of a sale of the same vested in the children of Alonzo H. Nunnally and the three persons named. The word ‘heirs' here also construed ‘children,' which excludes the widow of Alonzo H. Nunnally. The title to the proceeds of a sale of the house and lot therefore vests in the six children of Alonzo H. Nunnally and the three persons named, each taking his one-ninth (1/9) undivided interest. Item 5 five of the codicil provides for a sale, but the legatees by way of reconversion have-the' right to take the same as realty. If, within five days after the final decree is signed and entered, the nine devisees shall file with the executor their written election to take the lands in lieu of the proceeds of a sale, it will be ordered that the executor deliver possession of the house and lot to the legatees. If no such unanimous election is filed within the time stated, the executor will proceed at once to sell the house and lot at private sale, or at public sale after the manner of administrator’s sale, as he may deem best. If a private sale is had, it shall be subject to confirmation by the court; the authority for a private sale not being conferred by the will, or in the codicil-thereto, and being authorized only under the general equity powers of the court having all parties at interest before it.</p> <p>“3. Item 25 of the will is the residuary clause of the will. Under this item the residuum goes to the three persons named in equal shares as in fee, that is, each takes one third. The words ‘heirs and assigns’ are construed as words of limitation, and not of purchase; they limit and describe the estate of the taker named. One third' of the residuum should be paid Mrs. Martha E. Foster, and one third to Mrs. G-. A. Nunnally as executrix of Q-. A. Nunnally. The bequest to Alonzo H. Nunnally is the residue referred to in item 17 of the will, and the one third of the residuum would have gone to his children if there had been no codicil, but item 4 of the codicil revokes the legacy in item 25 of the will and the related provisions in item 17 of the will.</p> <p>“4. The legacy under the residuary clause of the will to Alonzo II. Nunnally, being revoked by the codicil, is the one third of the residuum under item 25 of the will undevised. This depends upon whether the codicil contains a residuary clause. The codicil provides a conditional residuary clause in the 8th item thereof. If, after all the other bequests are fully paid, there be left as much as $1,000, that it be paid to the heirs at law of A. F. Nunnally, with the exception of W. B. Nunnally, is a provision for any residuum which amounts to $1,000 or more. Therefore the children of A. F. Nunnally, except "W. B. Nunnally, should take any final residuum that amounts to $1,000 or more. The word ‘heirs’ here again construed as children, which excludes the widow of A. F. Ntinnally. As the final residuum exceeds $1,000, it is unnecessary to determine what would be the' disposition of the residuum if it had amounted to less than $1,000. ,</p> <p>“5." Counsel for the executor is requ to frame a final decree in accordance with the conclusions herein set forth.”</p> <p>A final decree was prepared in strict conformity with the conelusions reached and announced by the judge, and was duly rendered. The widow and children of Alonzo II. Nunnally excepted to the decree, making thereon the following assignments of error:</p> <p>“First. Because the said judgment and decree is contrary to law.</p> <p>“Second. Because said judgment and decree is contrary to the evidence.</p> <p>“Third.- Because, as plaintiffs in error insist, the court erred in holding and ruling that the bequest in residuum in the twenty-fifth item of the original will to Alonzo H. Nunnally had been revoked. Plaintiffs in error insist that said will neither expressly nor by implication known to law revokes the. bequest in residuum to the said Alonzo H. Nunnally; and that the court should have held and ruled that said bequest in residuum to the said Alonzo II. Nunnally stands unrevoked and should be paid to his children.</p> <p>“Fourth. Because, as plaintiffs in error insist, the court erred in holding and ruling that the children of A. F. Nunnally took any sum under said will in excess of one thousand dollars. ‘ Plaintiffs in error insist that the eighth item of the codicil of the said will should be construed as giving the sum of one thousand dollars only to the children of A. F. Nunnally, except W. B. Nunnally, to be equally divided among them; and that the court should have held and ruled that the said eighth item of the codicil gave to said children of A. F. Nunnally, except W. B. Nunnally, no,greater sum than one thousand dollars, and that that sum was to be paid only in the event that so much remained after paying special bequests.</p> <p>“Fifth. Because, as plaintiffs in error insist, the court erred in holding that the eighth item of the codicil of the will gave to the children of A. F. Nunnally, except W. B. Nunnally, one third of the residuum. Plaintiffs in error insist that there is nothing in the will which justifies this construction.</p> <p>“Sixth. Because, as plaintiffs in error insist, the court should have held and- ruled that the fourth item of the codicil of the will repeats the language of the seventeenth item of the original will, down to and including the words 'to be -in full of his share in my estate/ leaving the exception in item seventeen, to wit, 'unless there should more come to him in the distribution of the residuum of my estate/ unaffected by anything stated in said codicil; and the court should have held and decreed that the intention of the testator was shown in the fourth item of the codicil to.repeat the language of the seventeenth item of the will and to leave the exception in the said seventeenth item to stand unchanged.</p> <p>“Seventh. Because, as plaintiffs in error insist, the court should have held and decreed that the remainder in the home in Monroe, provided by item five of the codicil, was vested in ten persons, each taking one-tenth - and that the widow of Alonzo EL Nunnally took an equal share with, his children and the other devisees in remainder.</p> <p>“Eighth. Because, as plaintiffs in error insist, the court should have held and decreed, that the codicil of the will shows no intention to leave an intestacy as to any part of the estate, shows no intention to revoke any part of the bequests in residuum provided by the twenty-fifth item of the will, and shows no intention to name a new beneficiary in residuum; but said bequest in residuum provided by the twenty-fifth item of the will remains unchanged by the codicil.”</p>

<p>Equitable petition. Before Judge Jones. Stephens superior court. November 8, 1918.</p>

<p>Petition for injunction. Before Judge Highsmith. Appling superior court. January 7, 1919.</p>

<p>Petition for injunction. Before Judge Summerall. Ware superior court. May 29, 1918.</p>

<p>Equitable petition. Before Judge Wright. Floyd superior court. October 23, 1918.</p> <p>From the record in this case it appears that Rome Industrial Insurance Company was capitalized at $100,000. J. C. Porter,' C. R. Porter, J. L. Bass, and E. A. Heard each held certain certificates representing a number of shares of this original issue of stock, which were fully paid for by them. By charter amendment the name of company was changed to Rome Insurance Company, and its capital stock increased to $1,000,000. Upon a stockholder’s petition, charging that the company was being mismanaged and abused by its ■ officers for their own private ends, receivers were appointed. 'In the proceeding under which they were appointed the receivers filed an intervention alleging, that practically all of the increased issue of stock was subscribed for by seven persons, including the four above mentioned, but had not been fully paid for; that all of the subscribers were directors, and that some were officers of the insurance company; that under an agreement all of the proposed new issue of stock so subscribed for by them was pooled and a trustee named to sell the same; that a large amount of. the stock was sold, most of it on a basis of three dollars for each dollar of par value, but that only the par value of ten dollars per share was paid to the insurance company, and that as sold the officers and directors of the insurance company, taking advantage of their position and power as such, would illegally cause to be issued to the purchasers,- out of their subscriptions to the increase in stock, certificates representing the particular number of shares paid for by the purchasers, instead of crediting the amount so paid pro rata upon the total amount of their unpaid subscriptions; and that there are due by each of the four persons above named large amounts on account of their unpaid subscriptions to the increased issue of stock, which they fail and refuse to pay. It is alleged, that at the time of appointment of receivers C. E. Porter, J. C. Porter, J. L. Bass, and E. A. Heard, respectively, held certificates representing 1562, 1547, 905, and 100 shares of the original issue of $100,000 of stock, and that in addition Bass held 800 shares of the increased issue; all of which (except 669 of the shares held by J. C. Porter) Lloyd Damron is claiming have been transferred and belong to him; that Damron is not an innocent purchaser for value; that at the time of assignment of the stock to him he knew each of the parties named had been guilty of the misconduct charged, knew that- all of them were largely indebted to the insurance company on account of their subscriptions to the increased stock, and that it was the purpose of the receivers to resist any and all claims of said parties on account of said certificates of stock to participate in the distribution of assets among the bona fide stockholders, and that he allowed the same to be transferred to him in pursuance of a scheme for the purpose of defrauding the bona fide stockholders of the company; and that all of the stock held by Damron except fifty shares has been deposited, under an order of courtj with the receivers. The prayers are that the. certificates of stock held by Damron be canceled and ordered surrendered to the receivers; that Damron be not allowed to participate in any distribution of the assets of the company, unless the balances due on the stock subscriptions above mentioned are first paid; that the court protect the bona fide stockholders by proper decree in the premises; and for general relief.</p> <p>By his answer the respondent denies the allegations that the stock was transferred to him in pursuance of a scheme to defraud other stockholders, and “shows that he is a bona fide holder of said stock for value, and that the parties from whom he purchased same, and the parties mentioned in the intervention, have no claim or equity whatever against such stock, but that he has paid for the stock he holds and is the bona fide owner and holder thereof; . . that the parties to whom such stock was issued have no interest whatever in said stock or in the proceeds thereof; . . that he is informed that suits for large amounts were filed against some of the parties from whom he purchased stock, to wit, C. R. Porter and J. C. Porter, saicl suits having been based upon subscription contracts . . ; that such suits are still pending; . . that a claim was filed in the district court of the United States against the estate of said J. L. Bass, who had been adjudicated a bankrupt, and said claims had been disallowed by the referee, and the referee’s decision had been approved by the district judge, and no appeal had been taken therefrom,” and that he is informed that “no suits or claims were ever filed against E. A. Heard;” that he is further informed that “other suits for large amounts were filed against C. R. Porter and J. C. Porter, which have been settled, said suits involving the alleged illegal pooling and sale of the stock, . . and that no suits were filed against J. L. Bass or E. A. Heard; . '. that the stock-subscription suits above referred to have been pending for about two years; that the receivers have been in charge for more than a year; that the other suits referred to have been pending for more than a year; and yet . . the receivers made no effort to hinder or prevent the said owners and subscribers of stock, O. R. Porter, J. C. Porter, J. L. Bass, and E. A. Heard, or their trustees in bankruptcy, from selling said stock,” and that “part of the stock issued to C. B. Porter and J. C. Porter which has been purchased by this respondent was purchased by him from persons who held same as collateral security for debts prior to any claim of the receivers against this stock or any notice or threat of contest,” and that “the stock of J. L. Bass and E. A. Heard was purchased from the trustee in bankruptcy under order of the bankruptcy court.” The respondent also sets up that he can neither admit nor deny the allegations of the intervention as to the failure of the four persons above named to pay the amounts alleged to be due on their subscriptions for said capital stock; but that while it may be true they had not paid for the amounts of the increased issue of stock subscribed for by them, as set forth in the intervention, “yet he is informed and believes, and so charges, that they had fully paid for the stock standing in their names recited in the fifth paragraph of the petition,” being the certificates of stock which the receivers sought to have canceled. He prays that he be allowed to share pro rata in the distribution of the assets.</p> <p>Hpon the hearing the plaintiffs introduced, among other documentary evidence, a suit brought by the receivers against C. B. Porter, on account of a certain subscription to the capital stock of Borne Insurance Company, with judgment dated March 3, 1915, aggregating $195,314.00, and execution issued thereon; two similar suits against J. C. Porter, with judgments dated March 3, 1915, aggregating $162,925.50; also certificates of stock representing 1562 shares transferred by C. B. Porter to Damron, and certificates of stock representing 888 shares transferred by J. C. Porter to Damron, together with said transfers, made prior to March 3, 1915, the date of the judgments in the above-mentioned stock subscription suits, but subsequent to the appointment of receivers for the insurance company; also certificates representing 1705 shares with transfer dated October 20, 1914, of the trustee in bankruptcy of J. L. Bass to Damron; also certificates representing 100 shares with the transfer dated October 30, 1914, of the trustee in bankruptcy of E. A. Heard; also an agreed statement of facts containing the following language: “The- answer of said intervention thereto, hereby agreed to be true and correct, and it is agreed that the court may consider and pass upon said agreed statement of facts. . . It is admitted by all parties that C. E. Porter and J. C. Porter are both in bankruptcy, and that the claims of the receivers of the Eome Insurance Company were filed in the bankruptcy proceedings, and that C. E. Porter and J. C. Porter have now been discharged in bankruptcy, but that no payment was made on the judgments in these cases. It is further agreed by all parties that all of the certificates of stock referred to and described in the fifth paragraph of t\ie petition was original stock of the one hundred thousand dollars capital and were fully paid for, except certificates Nos. 1539, 1540, 1541, 1542, and 1543, as transferred by T. W. Lipscomb, trustee in bankruptcy for J. L. Bass, to Lloyd Damron, said certificates aggregating 800 shares, which were a part of tlio increased capitalization of the company. . . It is further agreed that there was no charter provision nor by-law of the Eome Insurance Company creating a lien upon this stock. . . It is further agreed that all of said stock was purchased by Lloyd Damron for a valuable consideration.” The court made the following judgment: “ Lloyd Damron, the defendant, received the stock sold to him subject to the right of set-off by the receivers of any judgment in favor of them for unpaid subscription to stock by the parties from whom defendant Damron purchased his shares of stock, and these shares of stock are therefore adjudged satisfied and paid, and ordered canceled.” Error is assigned upon the overruling of the motion for a new trial, the principal grounds being: (a) That there was no evidence showing that the defendant, Dárnron, knew of the existence of such indebtedness and no evidence showing that there was any collusion between Damron and his vendors, as alleged in the petition; and therefore the judgment of the court was without evidence to support it, and was directly contrary to law" and the principles of equity. (&) That the evidence and agreed statement of facts, showed that there was no lien upon this stock, by reason of such indebtedness, either by charter or by-law, and the judgment of the court canceling said stock was therefore contrary to law and evidence, (c) That as to .a part of such stock purchased by Damron from the trustees in bankruptcy of E- A. Heard and J. L. Bass, the evidence shows that such sale was made by order of the bankrupt court, and that plaintiffs sought to intervene therein and made no effort to prevent the sale of said stock in any way. (d) That the evidence shows that the plaintiffs stood' by and allowed a sale of said stock without objection or proceedings of any kind, and therefore they are now estopped to attack the validity of such stock.</p>

Equitable petition. Before Judge Thomas. Echols superior court. October 1, 1918. Saunders brought a petition alleging that he was “the true and lawful owner under perfect title” of a described lot of land. Injunction to prevent the cutting, removing, and otherwise interfering with the timber thereon, and damages, were sought against one Thomas.

Complaint for land. Before Judge Revill (of the city court of Greenville). Meriwether superior court. November 15, 1918. Claudia Tidwell as sole heir at law of J. A. J. Tidwell, deceased, instituted an action against George W. Garrick.

' Certiorari; from Court of Appeals. 22 Ga. App. 424 (96 S. E. 335). This case came before the Court of Appeals on a bill of exceptions filed to review alleged errors committed by the judge of the city court of Tifton, in passing on and overruling a general demurrer and certain special demurrers to a petition brought by Reid Corry against the Georgia Southern and Florida Railway Company, and to review certain alleged errors in the allowance of amendments to the petition.

<p>Equitable petition. Before Judge Meldrim. Chatham superior court. July 18, 1918.</p>

<p>1. The court did not err in admitting evidence of confessions made by the defendant. " •</p> <p>2. The extracts read from a volume of law reports to the court in the presence and hearing of the jury were not of such character as to require the court, upon motion of counsel for the accused, to grant a mistrial, as they were not so inflammatory in character as to arouse prejudice against the accused, nor did they seek to introduce material facts connected with the case which had not been properly introduced in evidence.</p> <p>3. Other remarks made by the solicitor-general in the course of his argument to the jury did not require a reversal of the judgment refusing a new trial, no motion for a mistrial having been made at the time in the trial court.</p>

<p>Motion to set aside judgment. Before Judge Spooner (of the city court of Bainbridge). Decatur superior court. July 11, 1918. T. 8. Hawes and John B. Wilson, for plaintiff.</p>

Equitable petition. Before Judge Crum. Crisp superior court. August 19, 1918. In an equitable suit instituted in-Crisp County the petition as amended, considered in connection with certain exhibits, alleged the following in substance: The Farmers State Bank, a corporation of Crisp county, being insolvent, was placed in the hands of a receiver on March 15, 1915.

<p>Petition for injunction. Before Judge Crum. Ben Hill superior court. May 13, 1919.</p>

<p>Habeas corpus. Before Judge Bartlett. Haralson superior court. June 14, 1918.</p> <p>In March, 1918, L. H. Hicks brought his petition for habeas corpus against J. S. Williams and Mrs. Mollie Williams, his wife, to recover custody of the minor son of petitioner, the child then being about 13 or 14 years of age. In 1909, when the child was three years of age, Hicks brought his petition for.habeas corpus against the same defendants, alleging that he had the right to the possession and custody of the child, and that the defendants were wrongfully witholding custody. When that petition came on for trial, in January, 1910, the court hearing the application refused to order the defendants to deliver custody of the child to the applicant. There was no express adjudication upon the issue raised in the answer of the defendants wherein they had alleged that the applicant had lost parental control of the child and had given the child and control over him to the defendants; but the court merely ruled that upon considering the evidence in the case it was adjudged that the custody of the infant child, William Hicks, should be awarded to the defendants; and it was also ordered that the child should not be carried beyond the jurisdiction of the court, and that when he should have arrived at such age that he should enter school, this judgment might be reviewed and the proper custody of the child reconsidered. It was expressly stated in the judgment that the same was not final. The judgment also made provision for the father’s seeing the child at stated intervals. This judgment was excepted to by the applicant and brought for review by writ of error to this court, and the judgement of the court below was affirmed. Again, in the year 1914, the plaintiff in the present case made application for the writ of habeas corpus to secure the custody of the same child, the same parties being named as defendants in this second application. When this application last referred to came on for a hearing, after hearing the evidence the court rendered judgment holding that, “upon a consideration of the law and facts as presented, I do not find that at this time there exist sufficient reasons to modify or change said order as prayed for, and said petition is denied.” The defendants continued to retain custody of the child until the filing of the petition in the case now under consideration.</p>

<p>• 'Complaint for land. Before Judge Searcy. Butts superior court. September 9, 1918.</p>

Equitable petition. Before Judge Hardeman. Emanuel superior court. October 7, 1918. Isaac and Delia Johnson, persons of color, lived together during the latter part of the Civil War. They continued to live together, and were living together as husband and wife on March 9, 1866. In 1866 they moved to the upper part of Emanuel county and settled on a piece of land purchased by Isaac.

<p>Petition for injunction. Before Judge Sheppard. Bryan superior court. October 28, 1918.</p>

<p>1. The court properly overruled the general and special demurrers to the petition and intervention. The petition and intervention stated a cause of action, and the parties named as plaintiffs in the one and as intervenors in the other were proper parties.</p> <p>2. The third item of the will under consideration was as follows: “T owe one thousand pounds sterling to the estate of my sister Agnes — Mrs. Scott, now represented by her son Hugh Scott. These amounts were borrowed by me on condition that I return them when I no longer needed them. Interest was not mentioned either by them or by me. One thousand pounds to each will be satisfactory. This money business to be conducted with my nephew Hugh Scott, and with no one else.” The court properly construed this portion of the will as creating a legacy, and not as a provision for the recognition and payment of a debt.</p> <p>3. Under the issues made and the facts, it was the office of the judgment and decree, and not of the verdict of the .jury (which was special in its character and in answer to questions submitted), to fix the dignity and priority in payment of the amount due and payable under the third item of the will which has been construed as creating a legacy. Hence the ground of the motion for a new trial in the first of the eases stated above, eoffipkhiiag of th'C failure of tlie verdict to establish the priority in payment of Ulb amount due and payable under the stated item of the will is Without merit.</p> <p>4. There was no merit 111 Hie exceptions of the plaintiffs and the intervenors to that portion of the decree directing that the amount, payable as a feg&Oy, under the provisions of the third item of the will, should te paid to the administrator of the legatee.</p> <p>■a. Even if the evidence admitted over objection, as stated in the motion for a new trial made by the plaintiff's in error in the first of the above-stated cases, was incompetent, it is not of such materiality as to require the grant of a new trial.</p>

Equitable petition. Before Judge Cobb. Clarke superior court. June 22, 1918. W. S. Holman is the owner of a nine-story brick building located on the corner of Clayton and Lumpkin streets in the City of Athens, known as the -Holman building. The building was completed in January, 1914. The exterior construction of the building is of tapestry brick.

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. July 9, 1918.</p>

<p>Equitable petition. Before Judge Park. Hancock superior court. July 29, 1918.</p> <p>O. A. Hill brought his petition against W. H. Burwell, in which he alleged as follows: He and Burwell entered into an agreement to purchase a certain tract of land. Late in the fall of 1906 petitioner, having secured a verbal option on a tract of land under the terms of which he could purchase the same for $4,500, suggested to Burwell that he and Burwell should purchase this place for an investment; and he did then agree with Burwell that they would together buy the land. Petitioner, having been compelled to use the money with which he expected to pay for his half of the purchase price, agreed that Burwell should borrow the money with which to make the purchase, and that the loan should be repaid by the two jointly, and that when so paid the unencumbered title to the property should be placed in complainant and Burwell as tenants in common. Burwell consented to the proposition, but stated that it would suit him to make an arrangement slightly different from that proposed; that “he, Burwell, would, if Hill would sign certain papers, arrange to borrow the whole of the money needed. To this Hill agreed, understanding that Burwell was to borrow the money for both, . . and that when repaid the unencumbered title to the tract of land, consisting of 594 acres, should be placed in Burwell and complainant as tenants in common.” In compliance with this agreement between the complainant and defendant, the former signed a certain note, stipulating for the payment to the defendant of fourteen bales of cotton, which was termed “rent,” for each of the years 1907 and 1908, the papers being drawn in this way so that the defendant could use them for the purpose of raising money with which to pay for the land. As a matter of fact, however, the land was not worth fourteen bales of cotton annually for rent. In order to effect the loan it was more convenient for Burwell to have the title taken in his own name. The defendant undertook to have the paper prepared and executed as it should have been, so as to protect the interests of both. The note was made for fourteen bales of cotton, so as to aid Burwell in borrowing money on security of the place. Burwell acted throughout the entire transaction as the attorney at law for both parties. The money was borrowed by Bur-well, and a mortgage given on the land. In 1907 eleven bales of cotton were turned over by Hill to Burwell, and it appears that in 1908 and the subsequent years up to and including the year 1916 a stated number of bales of cotton were turned over to Burwell in each year, making in all 91 bales. Complainant can not state the exact amount .received for the cotton, as it was practically all sold by Burwell, and under the agreement was to be applied by him in discharge of the money which was borrowed to pay for the land. Complainant also paid Burwell a certain sum in cash, which, together with the money realized from the cotton turned over to Bur-well, was more than enough to pay for the place. . And since the year 1907 complainant has been on the land, improving and managing it for the joint account of himself and Burwell, and during all these years has received no compensation for his services, he having turned over to Burwell each year his, complainant’s, share of the profits of the place, to be applied to the extinguishment of the debt. Plaintiff prays for an accounting, and a decree for specific performance.</p> <p>The defendant filed demurrers, general and special, to the petition, which were overruled, and he excepted.</p>

<p>Action for specific performance. Before Judge Mathews. 'Houston superior court. October 8,1918.</p>

<p>Injunction. Before Judge Searcy. Monroe superior court. June 14, 1919.</p>

Claim. Before Judge Walker. Wilkes superior court. September 17, 1918. Mrs. Carrie Hardy, as administratrix of the estate of ber deceased husband, Ben. I. Hardy, who died intestate, advertised for sale certain land alleged to belong to the estate of the intestate. This land consisted of a single tract of one hundred acres.

<p>Equitable petition. Before Judge Searcy. Henry superior court. August 17, 1918.,</p>

<p>Complaint for land. Before Judge Hardeman. Emanuel superior court. October 7, 1918.</p>

<p>Several citizens owning homes in the main residential section of a town joined in a petition to have the defendant enjoined from the erection and operation of a public ginnery and feed-crushing outfit or mill in close proximity to the residences and homes of the respective petitioners, alleging, for various reasons set forth, that the operation of the plant by the means and in the manner stated would be a nuisance, and would result in damages in stated amounts to their respective dwellings, the market value of each being alleged. At a preliminary hearing an interlocutory injunction was refused. At the trial term the petitioners were allowed to amend their original petition by alleging that since the refusal of an interlocutory injunction the defendant had erected the ginnery and feed-crushing mill, and was operating the same as petitioners alleged in the original petition he intended to do; that it constituted a nuisance for the reasons set forth in the original petition; and that each of the petitioners -had been damaged in designated amounts by the operation of the nuisance. The amendment included a prayer that each of the petitioners recover the damages which he had sustained by the erection and operation of the nuisance. The defendant demurred to the amendment, on the ground that it contained a misjoinder of parties plaintiff, and causes of action. Held, that the petition set forth a cause of action; the amendment was properly allowed; and the special demurrers were without merit.</p>

<p>Complaint for land. Before Judge Worrill. Decatur superior court. July 13, 1918.</p>

Interpleader. Before Judge Meldrim. Chatham superior court. July 19, 1918.

<p>Equitable petition. Before Judge Thomas.. Berrien superior court. September 14, 1918.</p>

<p>Ejectment. Before Judge Harrell. Calhoun superior court. October 21, 1918.</p> <p>Miss Eunice Price (now Mrs. Eunice Price Strickland) brought an action of ejectment against J. S. Cowart, for the recovery of two lots of land, and for mesne profits. The plaintiff relied for recovery upon a demise from herself as the sole heir at law of her father, J. N. Price. She contended (1) that her father died in possession of the land; (2) that the defendant claimed under a chain of title which originated in Margaret Williams, running (a) from Margaret Williams to J. C. Price, (5) from J. C. Price to J. N. Price, (c) from J. N. Price back to J. O. Price, (d) from J. C. Price to J. L. Boynton, (e) from J. L. Boynton to the defendant. The plaintiff attacked the alleged deed from J. N. Price to J. C. Price as a forgery. The trial of the case resulted in a verdict and judgment for the plaintiff for the premises in dispute, and for $1960 mesne profits. The defendant filed a motion for new trial, which was subsequently amended. The court denied the motion “in so far as the recovery of the land is concerned,” but granted the defendant a new trial “on the issue as to mesne profits,” and “as to the issue of mesne profits only,” for the following reasons, as set out in the order: “This judgment of the court granting a new trial on the issue of mesne profits 'is based solely on the ground that the plaintiff could not recover mesne profits except for such time as the plaintiff might by evidence show that the defendant was in possession of the premises in dispute; and plaintiff having failed to show that defendant was at any time in possession of the premises, the recovery for mesne profits was without any evidence to support it.” To this judgment the defendant excepted, assigning error thereon in the main bill of exceptions. The plaintiff filed a cross-bill of exceptions, in which she complains that the court erred in granting a new trial on the issue of mesne profits.</p>

<p>Equitable petition. Before Judge Summerall. Ware superior court. November 5, 1918.</p>

<p>1. The Railroad Commission of this State has by statute authority to fix just and reasonable gas rates to be paid by the consumers to the corporation owning or operating public gas plants.</p> <p>2. An order of the railroad commission fixing gas rates is presumed to be valid, but may be attacked in the courts on the ground that it is unjust and unreasonable, or void for other cause; and where such order is attacked as being void, the burden of px-oof is upon the party attacking it.</p> <p>3. Under the pleadings and the evidence the trial judge was authorized to hold that the order of the railroad commission was valid; and there was no error in refusing an injunction.</p>

<p>Petition for injunction. Before Judge Littlejohn. Pulton superior court. September 27, 1918.</p>

<p>1. Under the facts contained in this record, no grounds are shown for' the interference by a court of equity with the administration of the estate in question; and the general demurrer to the petition was properly sustained. ,</p> <p>2. The general demurrers filed by certain of the defendants went to the substance and merit of the. entire petition; and having held that they were properly sustained, it was proper that the entire petition should be dismissed.</p>

<p>Equitable petition. Before Judge Sheppard. Tattnall superior court. July 1, 1918.</p> <p>The petition alleges that in 1913 the City of Glennville desired to procure a system of electric lights and waterworks. It contracted with the J. B. McCrary Company to construct the same. The contract provided that title to the system should be retained by the McCrary Co. until it was fully paid for. One Dec. 3, 1914, tbe city found it impracticable, or legally impossible, to make the payments required of it under the original contract. The McCrary Co. was unwilling to complete and deliver the system without payment. At this point a second contract was made. It recites the making of the contract of Dec. 23, 1913; that the McCrary Co. has furnished material and proceeded with the erection of the system to a point nearing completion; that under the original contract the city agreed that payment should be made in part by the. sale of bonds issued for that purpose by the city, and the' balance as set forth in the contract of Dec. 23, 1913; that it is impracticable to comply with the terms of said contract by having the banks carry the amounts specified; that the McCrary Co. has refused to complete the system except upon compliance by the city with the terms of payment; that the city is unable to make these payments; that the mayor and council of the city have, by formal resolution passed in conformity with law, authorized the execution and delivery of this contract (Dec. 3,1914). ' This contract further recites that of the original contract price the city has paid all but a balance of $4851.21. It stipulates that the McCrary Co. will complete the system and deliver it to the city to be used by it, and that the city shall pay an annual rental of $1.00; that title is to remain in the McCrary Co.; that for the balance remaining unpaid on the original purchase-price the city shall give its check for $247.17, and four notes for stated amounts due Dec. 10, 1914, Jan. 10, 1915, Dec. 10, 1915, and Dec. 10, 1916; that the rental provided for shall continue until all of said notes are paid, and that when this is done all amounts paid as rental shall be deducted from the notes; that upon faihire of the city to pay said notes the McCrary Co. shall have the right to enter upon the premises, remove all material, and sell the same, proceeds to be applied to the expenso of sale, the debt due by the city to the McCrary Co., and any balance remaining to be turned over to the city. (The contract of Dec. 23, 1913, is not in the record, and it does not appear how the payments were to be made.) The petition also alleges that all of the notes given under the contract of 1914 have fully matured; that there is a balance of $3802.04 due thereon which the city refuses to pay; that the city refuses to deliver the property to the McCrary Co.; that the McCrary Co. has the legal title as well as the right of possession; that the question of whether the indebtedness is legally enforceable against the city otherwise than through the right of the McCrary Co. to retain title to the property until the money is paid is not material to its case, but that upon payment of said notes in accordance with .the terms of the contract it will releáse to the City of Glennville all its right, title, and interest in the property and otherwise do full and complete equity; that the action is brought for the purpose of recovering possession of the property, and that the court may determine the respective rights of the parties; that the reasonable rental value of the property is $2500 per .annum, and that the city is earning through its use $3000 per annum or other large sum; that these earnings are being appropriated by the city to its uses and purposes, arid that the plaintiff is entitled to have the same appropriated to it; that for the McCrary Co. to take possession of the property, or to cause the same to be levied upon, without regard to the use to which the city is devoting the same and the physical connections of the same to the property of private persons and consumers of the light and water, would greatly detract from its value; that it is necessary for the protection of the McCrary Co., as well as the city, that a receiver be appointed to take possession of the system, operate the same, collect and hold the earnings subject to appropriation to payment of plaintiff’s claim or otherwise as the court may direct, and to sell the property, or otherwise dispose of it, or turn it over to plaintiff, as the court may direct. The prayers are: (1) for a decree establishing the title of the McCrary Co. and its right of possession; (2) that the court adjust the equities between the parties, and by its process and decree compel the city to either pay the balance under the contract or surrender the property on such terms as may be equitable; (3) for the appointment of a receiver to take charge of the property and operate or sell the same as the court may. order; (4) for general relief, and (5) for process.</p> <p>The petition was demurred to upon the grounds: (1) no cause of action is set forth; (2) under the facts stated the plaintiff is not entitled to any relief; (3) so much of the petition as seeks the appointment of a receiver is specially demurred to, because the facts stated do not authorize the same; (4) the petition does not show that the claim or demand was presented to the governing authorities of the city before bringing suit. The demurrer was sustained and the petition dismissed. The plaintiff excepted.</p>

Exceptions to auditor’s report. Before Judge Nunnally (of the city court). Eloyd superior court. July 29, 1918.

<p>Equitable petition. Before Judge Tarver. Bartow superior court. May 30, 1918.</p>

<p>Construction of will. Before Judge Tarver. Bartow superior court. July 27, 1918.</p>

<p>Equitable petition. Before Judge Terrell. Troup superior court. August 30, 1918.</p>

<p>Under the evidence in the record, it does not appear that the com;t abused his discretion in awarding the counsel fees allowed in the present case.</p>

<p>Equitable petition. Before Judge Meldrim. Chatham superior court. December 26, 1918. ‘</p>

<p>Indictment for rape. Before Judge Thomas. Thomas superior court. January 17, 1919.</p>

<p>A draft animal with its harness, hitched to and being used to draw a buggy in which liquors are being conveyed, constitutes a part of the conveyance, so as to subject the animal and harness to seizure and condemnation under section 20 of the act of the General Assembly approved March 28, 1917 (Acts Ex. Sess. 1917, pp. 7, 16), providing for the seizure and condemnation of vehicles and conveyances conveying prohibited liquors.</p>

<p>Indictment for rape. Before Judge Walker. Wilkes superior court. May 7, 1919.</p>

<p>Equitable petition. Before Judge Summerall. Bacon superior court. December 30, 1918.</p>

<p>Equitable petition. Before Judge Kent. Laurens superior court. March 8,1919.</p> <p>The petition relates the following case: On November 14, 1901, the prospective corporation to be known as Georgia Investment Company was in process of formation and organization. Daniel Cummings was a prospective stockholder and officer of this proposed corporation, and interested in its organization. D. W. Williams was then .a member of Land Mark Lodge No. 64 A. F. & A. M., on behalf of which the petition is brought. On the date mentioned Williams, acting for the lodge, and Cummings, acting for the proposed corporation, agreed that they would jointly purchase a certain tract of land in the city of Dublin, described in the petition, upon which it was proposed there should be erected a two-story brick building, the first story of which was to be used by the proposed corporation and the second story to be used by the plaintiff for lodge purposes. It is alleged, “that for temporary purposes the legal title to said lot of land was, by the consent and acquiescence of petitioners, made directly unto the said Daniel Cummings and D. W. Williams, as trustees for your petitioners and the said defendant corporation then in process of formation.” It was understood that upon procurement of charter by the proposed corporation Cummings and Williams would convey to it, as trustee for itself and the lodge, title to the land; that the proposed corporation would within a reasonable time construct the first story of the building; that the lodge would then construct the second story of the building, and when this had been done the proposed corporation would execute to the lodge good and sufficient legal title. Pursuant to this agreement the lodge furnished one half of the purchase-price of the land; the title was taken in the name of Cummings and Williams, who, on August 33, 1904, conveyed the land by deed to Georgia Investment Company for a recited consideration of $400; but no money was paid by the corporation for the conveyance, and it was executed in accordance with the agreement between Cummings and Williams, already stated. Since the making of said conveyance the lodge has, through committees appointed for that purpose, on divers occasions and at least annually, urged the Georgia Investment Company to proceed with the construction of the first story of the building on said lot in accordance with the agreement. The company has rendered first one and then another excuse, usually that it “was not quite ready from a financial standpoint to carry out the object of the original undertaking.” On March 6, 1918, the lodge in writing proposed to the company that the latter should carry out the original agreement by erecting the first story of the building,'or that it make to' the lodge a conveyance of the interest of the company in the land upon the basis of $60 per front foot, the then value of the land, or that the lodge would convey to the company its own interest upon the same basis. On June 5, 1918, the company for the first time refused to carry out the agreement above stated, and acquainted the lodge with its apparent design to appropriate and confiscate the property to its corporate uses. During all the years since the execution of the conveyance to Williams and Cummings and by them to the Georgia Investment Company the lodge has relied upon Cummings’ honor to carry out the original agreement, and he has time and again agreed to do so, but the Georgia Investment Company through Cummings is now undertaking to abuse petitioners’ confidence by claiming the absolute^ title to the property. Petitioner is the equitable owner of an undivided half interest in said property; the present condition of the legal title operates as a gross injustice to it, and gives to the defendant corporation an unconscientious advantage. Williams is dead, his estate has been fully administered, and the administrator discharged; but the petition joins as parties defendant all his heirs at law. Cummings is not made a party. The prayers are: (1) that a trust be implied in favor of the lodge, that it be decreed to be the beneficial owner of an undivided half interest in the land, and that the Georgia Investment Company is a trustee accordingly in its behalf; (2) that the deed from Williams and Cummings to Georgia Investment Company, exhibited with the petition, bé so reformed as to embody the true and correct understanding between the parties; (3) that the plaintiff have judgment against the Georgia Investment Company to cover damages accruing from the breach of the contract; (4) for general relief; (5) for injunction to prevent the disposition or encumbering of the property; and (6) for process.</p> <p>The Georgia Investment Company demurred generally upon the grounds: (a) No cause for relief of any kind is set forth by the petition, (b) From its allegations it appears that the plaintiff is not entitled to any relief sought, (c) The claim set up is barred, is a stale demand, and petitioner has been guilty of such delay and laches as will prevent a -recovery. (d) It appears that Williams, who committed fraud against petitioner, is dead, his estate has been administered, the administrator discharged; and during all these years petitioner has shown no vigilance nor taken any steps which would justify, a court of equity or law in interfering. The court dismissed- the petition, and the plaintiffs excepted.</p>

<p>Claim. Before Judge Morris. Cherokee superior court. April 12,1919.</p> <p>A. P. Roberts, transferee, foreclosed a mortgage on realty. The mortgage fi. fa. was levied on land described in the mortgage; whereupon J. H. Hastey, executor of the estate of Mary E. Watkins, interposed a claim based on a sheriff’s deed purporting to convey the land in dispute to Mary E. Watkins. The sheriff’s sale was based on a common-law judgment obtained by Mary E. Watkins against certain named individuals. The claimant also introduced a deed from P. H. Lyons to “Board of North Georgia High School as follows” (naming the same persons against whom Mary E. Watkins had obtained judgment)'. At the sheriff’s sale the administrator of Mrs. Watkins bought in the property. It was admitted that Roberts was present at this sale and publicly announced that he had a mortgage on the land. The common-law judgment was obtained subsequently to the date of the mortgage. On the trial of the case the judge, by agreement, passed upon the case without the intervention of a jury, and rendered a judgment finding the property subject to the mortgage fi. fa. The claimant made a motion for new trial, based on the ground that the verdict was against the evidence and contrary to law, and because the court erred in admitting the original note and mortgage in evidence. The only objection to the admission of same was on the ground that “there was no evidence shown where H. A. Burge had any authority to sign any mortgage.” The motion was overruled, and the claimant excepted.</p>

<p>Under the facts stated in the question propounded by the Court of Appeals the jury were authorized to find that there had been a breaking and entering of the house in question.</p>

<p>Indictment fox murder. Before. Judge Cobb. Jackson superior court. May 17, 1919.</p>

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

<p>Petition for injunction. Before Judge Hardeman. Bulloch superior court. April 30/1919.</p>

<p>Indictment for murder. Before Judge Harrell. Decatur superior court. May 24, Í919.</p>

<p>Indictment for murder. Before Judge Littlejohn.' Webster superior court. May 31, 1919.</p>

Certiorari; from Court of Appeals. 23 Ga. App. 376. The Southern Express Company was tried for a misdemeanor under an indictment which contained two counts, the first charging that the defendant “did then and there transport, ship, and carry from Yaldosta, Ga., to Camilla, Ga., both being points within this State, spirituous, vinous, malted, fermented, alcoholic, and intoxicating liquors and beverages, the last-named point, to wit, Camilla, Ga., being in the county of…

<p>Motion for new trial. Before Judge Ellis. Eulton superior court. Marcli 15, 1919.</p>

<p>Equitable petition. Before Judge Bartlett. Polk superior court. November 1, 1918.</p>

Injunction and receiver. Before Judge Cobb. Gwinnett superior court. December 5, 1918. W. R. Claridy filed a petition in equity against John Ayers.

<p>Injunction. Before Judge Ellis. Eulton superior court. January 8, 1919.</p>

<p>Equitable petition. Before Judge Ellis. Eulton superior court. January 30, 1919.</p>

<p>Under all the facts in the record the court erred in granting an injunction which had the effect of changing the custody of two minor children whose guardian had left them temporarily in the charge and care of the defendants, and of conferring the right of such custody upon a third person.</p>

<p>Equitable petition. Before Judge Harrell. Dougherty superior court. January 3, 1919.</p>

<p>Habeas corpus. Before Judge Meldrim. Chatham superior court. March 5, 1919.</p>

<p>Divorce and alimony. Before Judge Kent. Laurens superior court. February 6, 1919.</p> <p>Mrs. Sarah Knight Black filed her petition for divorce and for temporary and permanent alimony against T. H. Black. The ground on which, the divorce was sought was cruel treatment. On the trial the plaintiff testified: She had known the defendant for about five years prior to her marriage; when she was a girl eleven or twelve years old he often presented her with jewelry and other presents, and was quite kind to her. When she was about fifteen years old he proposed marriage to her. She did not immediately accept his proposal, but regarded it as a joke, and told him that he was too old to marry her; that he was old enough to be her grandfather. Finally she learned to respect him and to love him “with parental love.” She married the defendant on February 22, 1917, when she was about seventeen years old. In substance the acts of cruelty charged may be given in the plaintiff’s language as follows: “The second morning after we were married I tied his tie for him, and when he came back to the house it was tied in a different way, and he said Mrs. — tied it for him, and that after she tied his tie over she threw her arms around him and kissed him. . . This had a considerable effect on my mind and feeling, made me feel very badly. . . The third night after we were married he wanted to retire between six and seven o’clock, and I said I wasn’t ready to go to bed, and he says, ‘Yo,u little blame fool, what you think I married you for?’ He says, ‘You do what I say do.’ ” On that night “he got up. about eleven o’clock and reared around, cursed me, and abused me. . . He called me a blame fool, a little devil, and a damn fool. . . He said that his, children were very much dissatisfied about our marriage, and he was the same way. . . On the second Sunday he asked me if I didn’t want to go down to my home. . . He went to ride with Mrs.-and Mrs.-[a daughter of the defendant and a lady friend], and rode until after night.” The plaintiff was made to feel unwelcome in'the home. Defendant’s children would have nothing to do with her. The plaintiff suffered a groat deal mentally, and cried a great deal. The defendant abused her because she had sent a boy to him to collect an account from him. He repeatedly expressed the wish the she would return to her home; and finally, about five weeks after the marriage, “he told me to get my hat and leave; . . he says, *1 want you to leave on" account of my children being dissatisfied.’ He told me that he wanted me to take my hat and leave; the last time he told me this I took my hat and left. . I did not give him any cause to treat me this way. . . I separated from Mr. Black on the 24th of March, and the baby was born on the 20 th of December, 1917. . . Mr. Black has never done anything for me in any way, for me or the baby either, during the time I was confined.” The alleged acts of cruelty were denied by the defendant; and it was admitted that at the time of the birth of the child the defendant was paying the plaintiff twenty dollars per month as temporary alimony, under order of the court. On the trial the court submitted to the jury certain questions; and the jury found, in answer to the questions, that the plaintiff was entitled to a total divorce; that the disabilities of the defendant should be removed; that the plaintiff was entitled to alimony in, the sum of $400, and the child to an allowance of twenty-five dollars per month for sixteen years, payable to the ordinary on the first of each month. The 'defendant’s motion for new trial yras overruled, and he excepted.</p>

<p>Libel for divorce. Before Judge Thomas. Berrieu superior court. March 25, 1919.</p>

<p>Eor a deed to be effective as a conveyance of title to land, its delivery, actual or constructive, during the life of the grantor, is essential.</p> <p>The court did not err in directing the verdict.</p>

<p>Equitable petition. Before Judge WorrilL- Grady superior court. March 1/1919.</p>

<p>Indictment for murder. Before Judge Smith. Rockdale superior court. May 9, 1919.</p>

<p>Injunction. Before Judge Thomas. Brooks superior court. April 26, 191.9.</p>

<p>Petition for injunction. Before Judge Highsmith. Camden superior court. January 15, 1919.</p>

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

<p>Complaint for land. Before Judge Walker. Taliaferro superior "court. February 15, 1919.</p>

<p>On the trial of an issue made by a wife’s claim to land levied on as the property of her husband, there was no error in not giving to the jury instructions based in part upon the premise, unsupported by any evidence, that the husband represented the land to be his own and obtained credit on that representation.</p> <p>The evidence authorized the verdict for the claimant.</p>

<p>Divorce and alimony. Before Judge Highsmith. Glynn superior court. March 27, 1919.</p>

<p>Indictment for murder. Before Judge Graham. Treutlen superior court. April 14, 1919.</p>

<p>Equitable petition. Before Judge Walker. Wilkes superior court May 10, 1919.</p>

<p>1. The act approved August 19, 1916 (Acts 1916 p. 56), is not void because in conflict with the constitution of Georgia, art. 6, sec. 2, par. 9 (Civil Code, § 6506), in so far as the General Assembly in said act authorizes jurisdiction of the Court of Appeals by “separate divisions of said court consisting of members thereof comprising loss than the whole membership of the court.” This section of the constitution expressly authorizes the General Assembly to otherwise provide by statute.</p> <p>2. Where there is express authority to the effect that two members of a division consisting of three judges of the Court of Appeals shall constitute a quorum, such quorum, when concurring, may lawfully decide cases pending before them.</p> <p>3. The act of the General Assembly approved August 19, 1916 (Acts 1916, p. 56), in so far as it provides that “all criminal cases shall be assigned to one division,” and “that each division- shall hear and determine, independently of the other, cases assigned to it,” is not void because in conflict with the constitution of Georgia, art. 6. sec. 2, par. 9 (Civil Code, § 6506). This section of the constitution expressly authorizes the General Assembly to otherwise provide by statute.</p> <p>4. The act approved August 19, 1916 (Acts 1916, p. 56), is not void because in conflict with the constitution ,of Georgia, art. 6, sec. 2, par. 9 (Civil Code, § 6506), in so far as it provides for the election of three additional Judges of the Court of Appeals. No constitutional amendment was necessary to confer upon the General Assembly power to increase the number of the Judges of the Court of Appeals, since the constitution, in the clause invoked, provided that the Court of Appeals shall, “until otherwise - provided by law,” consist of three Judges.</p> <p>(a) The two Judges of the Court of Appeals who decided the case, concurring in an affirmance, did not receive their commissions as such Judges by authority of the act of 1916. The statement of facts in the petition for certiorari in this respect is based upon misapprehension. These are facts of which this court will take judicial cognizance.</p> <p>5. The court erred in admitting the following evidence: “He [movant] walked up there and just pulled the gun and stuck it up the negro’s neck, and Mr. Nasworthy called him over there and told him to come over there, that he would fun off the music,” there being nothing in the record to connect this transaction with the homicide for which the accused was on trial.</p> <p>6. The character of the deceased for violence having been put in issue, the solicitor-general on cross-examination interrogated a witness in regard to particular acts and sayings of the deceased. Counsel for the accused sought to elicit evidence of such acts and sayings in their entirety, which, on objection, the court refused to allow. This was error.</p> <p>7. The facts of the case did not warrant the charge of the court on the subject of flight, without submitting to the jury for' their determination the question of whether or not the evidence in fact showed flight upon the part of the accused. Accordingly the court committed error in his instructions to the jury on this subject.</p> <p>8. Other grounds of the motion for new trial need not be dealt with in detail. They were of such character as will not occur on the next trial, or, although subject to some criticism, did not show such error as would require the grant of a new trial. No opinion is expressed as to whether, the verdict was supported by evidence.'</p>

<p>Temporary alimony. Before Judge Cobb. Barrow superior court. April 23, 1919.</p>

<p>Complaint for land. Before Judge Morris. Cobb superior court. February 14, 1919.</p>

<p>Petition to amend judgment. Before Judge Hodges. Elbert superior court. March 13, 1919.</p>

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

<p>Temporary alimony. Before Judge Hammond. Bichmond superior court. March 24, 1919.</p>

<p>No law provides that the appointee to fill a vacancy in the office of solicitor of the city court of Springfield shall fill out the unexpired term in which the vacancy occurs; but a vacancy in that office is to be filled by appointment of the Governor until the next general election, when a solicitor is to be elected to fill the unexpired term (Ga. L. 1908, p. 211). The act of 1911 (Ga. E. 1911, p. 1G9) does not apply to the case; and the Governor was authorized to appoint the relator as solicitor at the time this was done.</p>

<p>Indictment for murder. Before Judge Gower. Dooly superior court. May 31, 1919.</p>

<p>1. There is no statute of force in this State making the process of garnishment available to a creditor who seeks to subject realty of his debtor in the possession of a third person to the payment of the creditor’s debt.</p> <p>’(a) The word “property” in section S272 of the Civil Code of 1910 does not include land.</p> <p>(Z>) Nor do the words “legacy or distributive share,” in section 5304, include land, or any interest therein.</p> <p>2. The he'adnote in Mosely v. MeGough, 69 Ga. 748, was made by the reporter of the Supreme Court, and not by the court (see prefatory note in 69 Ga., referring to the act of 1866), and was not authorized by the decision rendered by the court in that case, which is of file in the clerk’s office as a record of the court.</p>

<p>Equitable petition. Before Judge Hardeman. Emanuel superior court. April 15, 1919.</p> <p>James M. Brown filed his petition against J. L. Carmichael, praying for cancellation of a certain deed, and for other relief: The petition alleged, in substance, as follows: J. L. Carmichael’ was in possession of a certain tract of land containing 864 y2 acres. During and prior to the years 1903 he became involved in debt in an amount exceeding $3,000, which he was unable to pay without a sacrifice of some of his property. In this condition Mrs. M. M. McLeod, afterwards Mrs. M. M. Carmichael, the wife of the defendant, agreed with the plaintiff to take over the 'land and to advance to Mm $3.50 per acre for the timber belonging to the plaintiff on the land, which had not been reserved by her and Mrs. Sarah A. Edenfield in their deed to him of a certain date, to be applied on his debts, and which sum would satisfy a very large part of the debts due by him. Mrs.. Carmichael agreed also to sell the timber from the land as soon as she could get a reasonable price, and pay whatever amount she received from the timber in excess of the advancement, if any, to be further applied on the debts, of plaintiff; and that if any other of his debts were then unsatisfied, she would pay them and satisfy herself from the rents and profits arising from the land, after which she would reconvey and redeliver the land to him. In pursuance of this agreement the plaintiff delivered to Mrs. M. M. Carmichael the land in controversy, and she failed to make the advance of $3.50 per acre, which she agreed to make on the timber. She sold the timber on the land, and failed to account to him for the amount of the purchase-price thereof, or to apply the same on his indebtedness.. She received from the sale of the timber $10,000, and only accounted to him for $2,000, which was insufficient to meet his obligations. She failed to account to him for the rents and profits arising from the use' of the land, as she had agreed to do, or apply the same to his debts, except the $2,000 aforesaid. J. L. Carmichael holds the land under his wife, who held under plaintiff. J. L. Carmichaél was fully cognizant of the agreement entered into between the plaintiff and Mrs. Carmichael, and himself agreed with the plaintiff in the arrangement, concurring in and furthering the same, and took the land with full knowledge that it belonged to plaintiff, and that it had been delivered to Mrs. Carmichael under the agreement aforesaid, the terms of which had not been met, and that the plaintiff was entitled to a reconveyance of the land. The deed from plaintiff to Mrs. Carmichael, dated Dec. 9, 1902, was made for the purpose aforesaid, and not for the purpose of conveying absolute title to her. Plaintiff has been deterred by the acts of J. L. Carmichael from bringing this action sooner. After the death of Mrs. Carmichael, which occurred on Dec. 31, 1905, Carmichael, the defendant, took charge of the estate of his wife. Shortly after her death the plaintiff approached the defendant and asked him about the land and about his carrying out the agreement herein-before set out, when the defendant answered that he would carry out the agreement and turn the land over to him and pay him the balance due him on the timber sold therefrom; but he has failed to do so.' Plaintiff was further deterred from- bringing this action by reason of the fact that he was a “dope fiend,” and had not been in condition mentally or physically to attend to business, which condition was fully known to tbe defendant. Plaintiff was cured of this habit in the" summer of 1915, when he immediately began his efforts to recover from the defendant the land and rents and profits therefrom. The defendant has, during each and every year since December 31, 1903, received the rents and profits of the land of the annual value of a thousand dollars. The defendant received the money arising from the sale of the timber from the land belonging to the plaintiff, in the sum of $8,000, and sold timber from the land since the year 1903 of the value of $6,000. The plaintiff prayed that his deed to Mrs. .M. M. Carmichael, dated Dec. 19, 1902, be canceled; that the defendant be required to reconvey the land to him; and that he have judgment against the defendant for the value of the timber sold by him and Mrs. Carmichael, before her death, and for the rents and profits arising from the use of the land since Jan. 1, 1904. At the appearance term the defendant demurred to the petition, on the grounds that it set forth no cause of action; that it appeared therefrom that it was barred by the statute of limitations; that the alleged agreement between plaintiff and his predecessor in title was void under the statute of frauds; that defendant is under no legal obligation to account to the plaintiff for the timber sold, or rents received by him from the property; that there was no privity of estate alleged which would bind the defendant to the obligátion of his predecessor in title; that plaintiff’s remedy, if any, would be against Mrs. Carmichael, or her legal representative; and that the agreement between plaintiff and Mrs. Carmichael was nothing more than a conveyance of his property for the purpose of defrauding his creditors, and for this reason he had no standing in a court of equity. A number of special demurrers to the petition were filed, which were met by amendments, including one making J. F. Price, administrator of Mrs. Carmichael, a party defendant; and one alleging that at the time he executed the deed to Mrs. Carmichael and ever since the plaintiff has “been insane, not possessing sufficient mind and reason equal to a full and clear understanding of the nature of any act clone by him. This state of mind was brought about prior to December 19, 1902, and has ever since so continued, on account of the habitual use of opiates and other drugs to which your petitioner has been unfortunately addicted.” It was also alleged in the .amendment, that on account of the want of reason and judgment the plaintiff did not understand and appreciate the effect of making an absolute deed in fee simple to Mrs. Carmichael, and that the effect of such deed, when he surrendered possession to the grantee, would be to prevent him from showing that the deed was made solely for the purpose of securing the money advanced by her to him. Wherefore plaintiff prayed that the deed made by him to Mrs. Carmichael be canceled and he recover from defendant the land in controversy. After the petition was amended, the defendant renewed his demurrer, which was sustained by the court, and the plaintiff excepted.</p>

<p>Mandamus. Before Judge Morris. Cobb superior court. May 10, 1919.</p> <p>To the statement of facts appearing in the opinion it may be added that the grounds of the demurrer to the petition (and of the objections raised in the answer) were as follows:</p> <p>1. That the act of 1918, purporting to abolish the fees of the solicitor-general of the Blue Bidge Circuit, is unconstitutional and void, for the following reasons: (1) The salary of the solicitor-general is payable exclusively out of the State treasury, and the attempt to supplement it from the treasuries of counties is inoperative and void. (2) The payment of said salary or any of it is not an object of county tax, and is not included in any of the purposes for which county taxes may be assessed. (3) The-counties or county authorities have no power to levy or collect a tax for the purpose of paying any part of the additional salary. (4) The act of 1918 is unconstitutional, because by its terms the funds, moneys, and emoluments accruing to the office of solicitor-general, and applicable to his insolvent-cost orders, are to be paid into the treasuries and become the property of the counties, notwithstanding the vested rights of the solicitor-general to the same.</p> <p>2. The General Assembly lacked authority to pass said act, because: (a) It had no authority to provide for the payment of said additional salary, or any part of it, out of the general treasuries of the counties of the circuit. (Z>) It liad no authority to make any part of the additional salary chargeable against any of said counties, (c) It had no authority to make an assessment against any of said counties for the purpose of paying the additional salary, (d) It ■had no power to make it the duty of the ordinary, county commissioners, or other authority having control of county matters to cause any part of the additional salary to be paid out of the funds of their counties, (e) It had no power to make it the duty of any of such authorities to make provision for the purpose of paying any part of the additional salary. (/) It had no power or authority to delegate to any of said counties the power to levy taxes for the purpose of paying any part of the additional salary.</p>

<p>Equitable petition.- Before Judge Pendleton. Fulton superior court. December 11, 1918.</p>

<p>1. The court did not err in overruling a motion to dismiss the information in the nature of a quo warranto, based on the g-round that such a proceeding must be brought by a public officer in the name of the State on the relation of private persons. An information in the nature of a writ of quo warranto may be legally instituted by a citizen and taxpayer, or a defeated candidate, in his own name without the interven- - tion of the State through one of its public officers.</p> <p>2. The court did not err in overruling the demurrers to the petition, based on the ground that no cause of action was set out, and that the facts did not show that respondents are ineligible to hold the offices, the title to which it was sought to inquire into by the Trit in the nature of a writ of quo warranto. Other grounds of the demurrer were expressly abandoned. The court did not err in rendering a judgment of ouster against the respondents, based upon the agreed statement of facts, notwithstanding certificates of election had been issued to the respondents and they had taken the oath of office and assumed the duties thereof.</p>

<p>Motion to set aside judgment. Before Judge Sheppard. Evans superior court. March 25, 1919.</p>

<p>Certiorari; from Court of Appeals. 23'Ga. App. 241.</p>

<p>1. The act of the General Assembly approved October 19, 1891 (Acts 1890-91, p. 96), as amended by the act approved December 23, 1892 (Acts 1892, p. 107), provides that “upon the recommendation of the grand jury of any county having a population of ten thousand or more, where a city court does not now exist, there shall be established a city court for said county” Civil Code of 1895. § 4270; Renal Code of 1895, § 777. The failure of the compiler of the Code of 1910 to embrace therein the provisions of the act of 1891, as amended by the act of 1892, supra, did not, in the absence of conflicting statutes in that code,, amount to a repeal by implication of the act. referred to, and that act, as amended by the General Assembly, is still the law of Georgia.</p> <p>(a) The act approved October 19, 1891, supra, conferred upon the judge of a court established under the act the power to„grant new trials, and provided for direct writ of error from such court to the Supreme Court. These provisions of the act were held invalid in Steioart v. Stale, 98 Ga. 202 (25 S. E. 424), and in Western Union Telegraph Go. v. Jachson, 98 Ga. 207 (25 S. E. 264). ’Held, that the invalid portions of the act of 1891 may be segregated and eliminated without destroying the main purpose of the act; such invalid portions not being so essentially connected with the primary principle and purpose of the law as to render their elimination destructive of the whole.</p> <p>2. Under the act approved October 19, 1891, supra, as amended by the act approved December 23, 1892, supra, the grand jury of any county having a population of ten thousand or more, in which a city court did not exist at the time of the adoption of the act and in which none exists at the time the grand jury acts, may, by recommendation, establish a city court for said county.</p> <p>3. The act of 1891, supra, in so far as it applies to the county of Coffee, was not repealed by the acts of 1895'and 1897, creating, respectively, a city court of Coffee county and a city court of Douglas in the county of Coffee; it appearing that the act of 1895, creating- the city court of Coffee, was expressly repealed by the act of 1897 (Acts 1897, p. 524), and that the act of 1897, creating the city court of Douglas, was express'ly repealed by the act of 1917 (Acts 1917, p.,236).</p> <p>4. The act of 1891, supra, prescribes no particular form of recommendation to be made by the grand jury; and the recommendation of the grand jury of Coffee county, establishing a city court for said county, having specifically referred to the act, the mere omission from the recommendation of specific reference to the portions of the act conferring jurisdiction in criminal cases upon the court thus established will not invalidate the recommendation.</p> <p>5. With respect to the receiving and paying out of the moneys of Coffee county, the county depository created by the act of 1916 (Acts 1916, p. 394) occupies precisely the same position as county treasurer. The salary of the judge of the city court established by the recommendation of the grand jury of Coffee county under the provisions of the act of 1891, supra, was fixed by law and made payable out of the county treasury in monthly installments. It was therefore unnecessary for the judge of the city court to have his claim for salary audited and a warrant on the county treasurer issued therefor by the board of county commissioners.</p> <p>6. The city court of Coffee county, established by recommendation of the grand jury of said county at the February term, 1918, of the superior court of said county, was, under the allegations of the petition, a ‘ legally established court, and the judge thereof was entitled to the salary fixed by the recommendation of the grand jury; and the court erred in dismissing the petition on demurrer.</p>

<p>Action on bond. Before Judge Wrigbt. Chattooga superior court. November 2, 1918.</p>

<p>Eule for contempt. Before Judge W. H. Long. City court of Quitman. April 8, 1919.</p> <p>B. Ossep brought suit against L. T. Creech Jr., in the city court of Quitman, to recover the sum-of $735, for the breach of a contract for the sale of five cars of melons; to which petition the defendant demurred, as well as filed his answer. During the pendency of the hearing the attorneys for the plaintiff served notice upon the attorneys for the defendant that they would take the depositions of the defendant before W. E. Knight, clerk of the superior court of the county, an ex-officio commissioner to take depositions, at his office in Quitman, Georgia on a day named. The defendant appeared on the date named, but refused to answer the questions propounded by the attorney for the plaintiff. Whereupon the commissioner found that the defendant was guilty of contempt in refusing to testify without legal excuse, and certified the proceedings to the judge of the court wherein the suit was pending. The judge issued a rule nisi addressed to the defendant, requiring him to show cause why he should not be adjudged in contempt and be punished as for contempt of court. To this rule nisi the defendant demurred, and also filed his answer wherein he set up that he was willing to give any legal evidence in the manner prescribed by law, but that he believed the proceedings to take his testimony by depositions was illegal and contrary to the provisions of law; that he was willing to give his testimony in the case either by interrogatories or from the stand, after being subpoenaed as a witness for the plaintiff; and that the plaintiff was seeking to discover from him as the defendant by depositions, which is not the legal way prescribed by law. He set up other reasons in his answer why he should hot be adjudged in contempt by reason of his refusal to answer the questions propounded by the attorney for the plaintiff. The judge overruled the demurrer, rendered a judgment that the defendant be adjudged in contempt of court, and fixed a fine of $25 for said contempt. To these rulings the defendant excepted.</p>

<p>Petition for mandamus. Before Judge Worrill. Randolph superior court. March 31, 1919.</p>

<p>Equitable petition. Before Judge Wright. Walker superior court. May 2, 1919.</p>

<p>Where a person driving a motor truck on a public highway over a railroad crossing is struck by a passenger-train and injured, the mere fact that the vehicle has not been registered in the office of the Secretary of State, and a license obtained, and a license fee paid, as required under Georgia Laws, Ex. Sess. 1915, p. 107, will not render the person so injured a trespasser, and bar his right of recovery against the railroad company for negligence.</p>

<p>Injunction. Before Judge Harrell. Decatur superior court. . September 30, 1919.</p>

<p>Equitable petition; interventions. Before Judge Park. Wilkinson superior court. December 20, 1918.</p>

<p>Injunction. Before Judge Park. Wilkinson superior court. January 23, 1919.</p>

<p>Equitable petition. - Before Judge Walker. Warren superior court. January 8, 1919.</p>

<p>Equitable petition. Before Judge Terrell. Coweta superior court. February 13, 1919.</p>

<p>Action, for specific performance. Before Judge Terrell. Coweta superior court. March 5, 1919.</p>

<p>Under the pleadings and the evidence, the grant of an interlocutory injunction against all the defendants was unauthorized; and interlocutory injunction against 'any of the defendants generally was likewise unauthorized. With respect to the specific sum in controversy, or the proceeds into which the same may have been converted, the plaintiff below was not -entitled to a receiver and at the same, time to the writ of ne exeat. The order appointing the receiver and requiring the principal defendants to turn over to him the specific property was inconsistent with the writ of ne exeat awarded at the same time to prevent the principal defendants from removing any of their property from the State, and with the bond they were required to give thereunder.</p>

<p>Ejectment. Before Judge Meldrim. Chatham superior court. February 21, 1919.</p>

<p>1. The authorities in charge of a municipal public school, conducted under the general law of the State as a part of the school system thereof, can not lawfully require the payment of a matriculation fee by children of school age residing in the municipality, and who are otherwise qualified, as a condition to their admission to the “common-school department” of such school.</p> <p>2. 'Whether a matriculation or monthly tuition charge may be lawfully exacted of children of school age residing in the municipality as a condition to their admission to what is termed “the high-school- department,” the “high-school department” covering a course of study not prescribed by the State board of education, is a question not raised by the record in the present case and is therefore not decided,.</p> <p>3. Under the facts of the instant case the court did not err in striking the plea in abatement and ordering the mandamus absolute to issue.</p>

<p>Complaint for land. Before Judge Hodges. Hart superior court. February 38, 1919.</p>

<p>Equitable petition. Before Judge Worrill. Early superior court. April 9, 1919.</p>

<p>Equitable petition. Before Judge Hammond. Richmond superior court. April 28, 1919.</p>

<p>1. Where an appeal was entered to tlie judgment of the court of ordinary, the accrued costs paid, and bond filed in time and received and approved by the ordinary, no objection being raised to the bond at the time, the appeal should have been transmitted to the superior court; and the ordinary was not authorized to refuse to transmit the appeal merely on the ground that the bond was payable to the ordinary instead of to the appellee. Such irregularity in the bond could have been amended in the superior court, by the sureties consenting thereto. .</p> <p>2. Where a petition was filed, the fact that the court required certain amendments and the petitioner yielded to the requirement and made the amendments is not good ground of exception to the judgment of the ■ court subsequently denying the application. If the petitioner was of the opinion that his petition was sufficient without amendments, lie should have stood upon it as originally drawn, and he could then have excepted to any adverse judgment affecting his rights under the petition as it was written before amendment. Farrer v. Edwards, 144 Ga. 553 (87 S. E. 777).</p> <p>3. Where an attorney at law signed the name of his principal to a bond and inadvertently or erroneously subscribed a name containing a wrong . middle initial, such error could be cured by amendment.</p>

<p>Ejectment. Before Judge Hardeman. Emanuel superior court. April 14,1919.</p>

<p>Equitable petition. Before Judge Wright. Eloyd superior court. April 16, 1919.</p>

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

Equitable petition. Before Judge Thomas. Colquitt superior court. May 17, 1919.

<p>Equitable petition. Before Judge Thomas. Berrien superior -court. March 18, 1919.</p>

<p>Indictment for rape. Before Judge Gower. Dooly superior court. August 6, 1919.</p>

<p>Description as in case next preceding.</p>

Petition for injunction. Before Judge Littlejohn. Schley superior court. January 6, 1919.

<p>Certiorari; from Court of Appeals. 23 Ga. App. 93 (97 S. E. 561).</p>

<p>Equitable petition. Before Judge Pendleton. Pulton superior court. January 22, 1919.</p>

<p>Indictment for murder. Before Judge Sheppard. Tattnall superior court. April 29, 1919.</p> <p>George and Nick Swain were indicted for the murder of Dock Harris. Hpon the trial of George Swain the evidence showed that he had married the daughter of the deceased surreptitiously and against the "wishes of the latter. The accused and his wife had been separated for two or three weeks, tire latter having'gone to the home of her father. The accused went there and asked for his wife, and was told by another person, at the instance of the wife, that she was not there. The deceased was eating dinner, and was told that the accused was at the gate. The deceased went to the front door, and said to the accused, “Haven’t I told you not to come here?” The State’s evidence shows that the accused immediately shot at the deceased twice, after which both parties fired numerous shots; the deceased returning to his room, followed by the accused, who drew a second pistol; whereupon the deceased procured his riñe; the accused then retired from the premises, and while doing so was shot at again by the deceased with the rifle. The deceased fell, saying that he was killed, and died the next morning. "While mortally wounded and, conscious that he was in a dying condition he made declarations inculpating the accused and detailing threats that he had received from the accused, and stated that the accused had waylaid the road, and that when the accused appeared at his gate he asked him what he was doing there, and the accused made no reply but began to shoqt, and that the first shot hit him. There was evidence that the first shot killed the deceased. The defendant’s evidence tended to show that when he appeared at the gate of the deceased and the latter appeared at his door, the firing simultaneously began. The defendant, in his statement to the jury, claimed, that the deceased first began the firing, and that he had acted in self-defense. The jury returned a verdict of guilty, recommending life imprisonment. The defendant filed a motion for new trial, which was overruled, and he excepted.</p>

Equitable petition. Before Judge Gower. Crisp superior court. June %, 1919. J. B. Wall, solicitor-general of the Cordele Circuit, brought his petition against the clerk of the superior court of Crisp county, the commissioners of that county, and certain banks, depositories for the county, which exercised and performed certain duties of the county treasurer, which latter office had been abolished.

<p>Questions certified by Court of Appeals (Case No. 9549).</p>

<p>Petition for mandamus. ' Before Judge Pendleton. Pulton superior court. June 17, 1919.</p>

<p>1. Where an individual executed to a bank a promissory note and to secure payment of the same' executed an absolute deed of conveyance, and subsequently, in a note given in renewal of the former note, it was stipulated that “It is hereby agreed and understood that any excess of security upon this note shall be applicable to any other note or claim held by said bank against me,” and where prior to the execution of the note containing the stipulation referred to, and while the original note and the instrument securing the payment of the same were still in the hands of the bank, the maker thereof executed and delivered another promissory note to the same bank, the bank, would have, as against the maker, a lien upon the property conveyed in the security deed.</p> <p>2. In view of the ruling made above, this court will not pass upon the question as to whether or not the tender alleged and proved by the defendant was a valid and sufficient tender, inasmuch as that question will be considered from a materially different standpoint when the case is tried again.</p>

<p>The Court of Appeals certified tbe following question (in Case No. 9476, from Fulton) :» “Can a passenger, traveling, wholly between points in this State, on a through ticket, over different lines of railroad, having a coupon-attached for each road, who has checked his baggage to the point of destination, hold the last connecting carrier liable for the loss of the baggage, where it appears from the evidence that such last connecting carrier never in fact received said baggage?”</p>

Claim. Before Judge Harrell. Grady superior court. January 13, 1920. . In December, 1906,”upon the application of Gus Eortner, what is commonly known as “a statutory or short homestead” was set apart to the applicant and his family under section 2866 of the Code of 1895 (Civil Code of.1910, § 3416).

<p>1. The statute embraced in section 4126 of the Civil Code, providing that title to cotton, corn, and certain other specified products sold by planters and commission merchants on cash sale does not pass until the articles sold are paid for, is not unconstitutional on the ground that it is special legislation, or that it denies the equal protection of the laws, in violation of the provisions of the Federal and State constitutions.</p> <p>2. An amendment to the petition, alleging that the defendants were commission merchants engaged in the business of selling cotton for their customers on commission, and that they were therefore engaged in the same business as.the plaintiff and were in the same class and entitled to the protection of the same laws, should have been stricken upon demurrer.</p> <p>3. The demurrer raising the question as to misjoinder of parties was properly overruled.</p>

<p>Ejectment. Before Judge Thomas. Lowndes superior court. May 21, 1919.</p>

Action for specific performance. Before Judge Tarver. Murray superior court. February 11, 1919. On March 24, 1914, Loomis executed 'to Bank of Chatsworth Ms promissory note for the sum of $550, with interest, due six months after date. To secure the payment of the note Loomis executed to ,the bank his warranty deed to certain lands which were sufficiently described therein.

<p>Action for specific performance. Before Judge Ellis. Fulton superior court. January 20, 1919.</p>

<p>Questions certified by Court of Appeals (Cases Nos. 10190, 10203; from Whitfield and Dade).</p>

<p>Claim. Before Judge Hodges. Pike superior court. April 7, 1919.</p>

<p>Equitable petition. Before Judge Terrell. Carroll superior court. April 8, 1919.</p>

Equitable petition. Before Judge Wright. Walker superior court. March 6, 1919.

<p>1. A filed suit in equity to enjoin and abate B-’s fertilizer works as a nuisance. C owned a fertilizer factory located 'near that of B, alleged by A also to constitute a nuisance. C was not á party to the suit, but entered with A and B into a contract in which he agreed to abide by the terms of the interlocutory injunction issued against B. ' Upon application of A, and by consent of B, the contract, by order of the court, was made a part of the record in the cause between A and B. C did not join in the application, and did not consent to the order. Held, that C was not a party to the- cause, and was not bound by the judgment of record therein, either (1) by voluntary contract, (£}' by the- order of the court, or (3) by estoppel; and this is true although A contemplated the filing of a separate suit against C to enjoin his works as a nuisance.</p> <p>Z. A proceeding for attachment for contempt, in which the defendant and a person not a party to the case are joined as respondents, and in which acts of the defendant and that person are alleged to constitute, jointly and severally, a contempt, is demurrable upon the grounds of misjoinder of parties defendant and causes of action.</p> <p>3. The terms of an injunction should be explicit and definite within themselves; but under the practice- in this State, the allegations of the petition are to be considered in connection with the writ itself; and if the acts enjoined- be particulardy and definitely described in the petition, the injunction is not too vague and indefinite to be enforced. Especially is this true where -the injunction was issued by consent of the defendant, and no objection was made to the terms of the order.</p>

<p>Equitable petition. Before-Judge Kent. Twiggs superior court. February 26, 1919.</p>

<p>Temporary alimony, etc. Before Judge Howard. Taylor superior court. May 28, 1919.</p>

<p>Temporary alimony, etc. Before Judge Hodges. Franklin superior court. May 24, 1919. '</p>

<p>1. The order of the court of ordinary granting leave to an administrator with will annexed to sell land belonging to the estate he represents is a judgment of a court of competent jurisdiction. It imports, legally, a necessity for the sale, and such judgment, apparently regular, cannot be collaterally attacked. It represents the authority for the sale of real estate, and when sold to an innocent purchaser, in accordance with the statute, such sale divests the title of the heirs, although there may be irregularities.</p> <p>2. Where the petition of such administrator for leave to sell land of the estate he represents recites that “the testator’ [died] leaving a tract of land ill said county, on which he resided,” containing a designated number of acres, upon which the court of ordinary rendered a judgment granting leave to sell the land upon the administrator’s “proceeding in the premises as required by statutes in such cases made and provided,” such judgment is not void for lack of a legally sufficient description of the land.</p> <p>3. Where the deed of an administrator with will annexed recites that the land was exposed for sale under and by virtue of an order of the court of ordinary, and the order of said court required that the administrator “proceed in the premises as required by the statutes in such cases made and provided,” the deed will be held valid, although it does not recite that the sale took place between the hours required by the statute, in the absence of anything to show the contrary.</p> <p>4. The judgment of the court of ordinary, referred to in the preceding headnotes, is not void for lack of notice or service upon the owners of the land, where the petition to the court of ordinary for leave to sell alleges that the petitioner “has given due notice of his intended application,” and the judgment of the court of ordinary is based on such petition. “Due notice,” nothing appearing to the contrary on the face of the record, will be held to mean a full compliance with the law in regard to notice and service.</p> <p>5. Where the petition of such administrator to the court of ordinary for leave to sell, referred to in the preceding headnotes, recites that “such is the situation of the land that no fair division can be made amongst the heirs at law,” it must be assumed that legally sufficient reasons were shown to the court, authorizing a judgment granting leave to the administrator to sell the land.</p> <p>6. The foregoing rulings control the decision of the case before us. Other rulings of the court upon which errors are assigned and authorities cited are not decided, because they are pertinent only where a direct attack is made on the judgment.</p>

<p>Divorce and alimony. Before Judge Bell. Fulton superior court. March 5, 1919.</p>

<p>The evidence demanded a verdict for the defendant, and the court did not err in so directing. None of the assignments of error on the admissibility of evidence require a reversal.</p>

<p>Complaint for land. Before Judge Irwin. Douglas superior court. May 6, 1919.</p>

<p>Complaint for land. Before Judge Hardeman. Toombs superior court. April 15, 1919.</p>

<p>An equitable petition to set aside a judgment upon an attachment alleged to have been unlawfully and wrongfully issued against the petitioner during her temporary absence from the county, upon a demand that she did not owe, but held or • claimed against her husband by the plaintiff in the attachment suit (of which suit the petitioner did not have notice or knowledge until after a sale of her property under the attachment levy and a disposition of the proceeds of sale), and to have’ declared void the sale under the levy, and to recover of the plaintiff in attachment the value of the property sold, set forth a cause of action.</p>

<p>Petition for injunction and receiver. Before Judge Bell. Pulton superior court. March 24, 1919.</p>

<p>Equitable petition. Before Judge Meldrim. Chatham superior court. December 31, 1918.</p> <p>G. M. Cohen, as trustee in bankruptcy of Conida’s Chocolate Manufacturing Company, a bankrupt corporation, on August 16, 1918, filed his petition against Jerry George for the recovery of $19,000, alleged to be the value of a certain business and all of its assets, which the defendant, in June, 1907, upon the organization of the corporation under the laws of Georgia, had conyeyed to it in payment for 190 shares, of the par value of $100 each, of its capital stock, but which afterwards, in January, 1909, he had taken back from the corporation, by vote of the stockholders^ as part of the consideration for a sale by him to the corporation of 160 shares of the stock then held by him in the corporation; he having, in addition to thus conveying his shares of stock, paid to the corporation $1500 in money, and assumed $2,000 dollars of an indebtedness of the corporation then owing to a bank. The alleged right to recover the $19,000, as shown in the petition, was based upon the facts therein stated, and upon the equitable and legal contention that the sale by the defendant to the corporation of his capital stock was void under the laws of Georgia, because thereby the capital stock of the corporation was reduced below the minimum of its capital fixed in and by its charter; and upon the further proposition that, the corporation being insolvent and having been adjudicated a bankrupt, the trustee in bankruptcy was entitled, by the acts of Congress relating to bankruptcy, to recover from the defendant the value of the property thus illegally obtained by him from the corporation in consideration of his sale to it of his stock in the corporation.</p> <p>At the hearing of the case special and general demurrers to the petition were urged; and the court rendered judgment sustaining the general demurrer.</p>

<p>Questions certified by Court of Appeals (Case No. 9936; from Fannin).</p>

Petition for mandamus. Before Judge Graham. Telfair superior court. April 17, 1919. The McRae-IIelena public school is in a school district organized in Telfair County under the MeMichael act. It participates in the public-school funds controlled by the State, and receives its proportion based on the number of school children between the ages of six and eighteen years. It is a graded school, having seven grades, and is in session for nine months of each year.

Temporary alimony, etc. Before Judge Summerall. Coffee superior court. May 26, 1919. Mrs. Bentley brought suit for divorce and alimony. Service was made on the defendant personally. The parties consented to the fixing of a time for a hearing. When it came on, a motion made by the defendant to continue was overruled; and while the bill of exceptions contains an assignment of error based on this action, it is expressly abandoned in the brief.

<p>Questions certified by Court of Appeals (Case No. 10044).</p>

Injunction. Before Judge Irwin. Carroll superior court. June 12, 1919. M. W. H. Lewis, a practicing physician, was notified to appear before the State Board of- Medical Examiners, and to answer certain charges preferred against him by that board.

<p>Indictment for murder. Before Judge Worrill. Miller superior court. July 7, 1919.</p>

<p>Indictment for murder. Before Judge Wrigbt. Floyd superior court. August 16, 1919.</p>

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. December 31, 1918.</p>

<p>Equitable petition. Before Judge Highsmith. Glynn superior court. February 22, 1919.</p>

<p>Injunction. Before Judge Sheppard. Tattnall superior court. February 7, 1919.</p>

<p>Petition for injunction. Before Judge Thomas. Colquitt superior court. May 17, 1S19.</p> <p>J. L. Dowling was the owner of a certain tract of land in the City of Moultrie, purchased by him at a cost of $650. He contracted with E. S. Nace to construct a dwelling thereon. He paid $500 on the contract price, and placed other improvements upon the property at a cost to him of $800. On the completion of the building he borrowed from an- insurance company the sum of $1500, securing the loan by a deed to the premises. The $1500 so borrowed was also paid to the contractor. He still owed the contractor approximately $800, and to secure this balance he executed a second lien upon the premises. In November, 1916, J. L. Dowling conveyed the premises to his wife, Mrs. M. E. Dowling. The conveyance was made subject to the liens aforesaid. J. L. Dowling failed to pay Mr. Nace or the insurance company. In December, 1916, Nace paid to the insurance company the money due it, and caused a transfer of its lien to be made to him. He thereupon instituted separate suits against J. L. Dowling, and recovered separate judgments against him, with special liens upon the land. In May, 1917, the fi. fas. issued from these judgments were levied upon the property. Before the sale of it on the first Tuesday in June, 1917, Nace and Mrs. Dowling, the latter acting through her husband, entered into an agreement by the terms of which Nace was to buy in the property at the sheriff’s sale at the lowest possible figure (thereby saving commissions on the sale), for the benefit of Mrs. Dowling, and she was to redeem the property by paying the amount of the fi. fas. She was to continue to occupy the property as a home, and to pay Nace a monthly rental of $30, which rental was to be accepted by Nace in lieu of interest and all taxes and insurance paid by him on the property to the date of its redemption by Mrs. Dowling, and so long as she paid the monthly rental promptly she was to have the right to occupy the house and the right to redeem the property upon, the terms stated. As .a result of the agreement, Nace bought the property for $500. Mrs. Dowling, with her husband, occupied the dwelling “and paid the stipulated monthly rental according to the agreement. Mr. Nace entered into the agreement in good faith, and at all times recognized its validity. In October, 1918, Mr. Dowling entered the military service, but before doing so Mr. Nace agreed to protect the interest of Mrs. Dowling and to allow her to pay the money on the return of her husband. Mr. Nace died in November, 1918, and the agreement at the time of his death was in full force and effect. Thereafter his property, consisting largely of real estate, was, by consent of his administrator, partitioned in kind by his heirs at law, there being no debts and no necessity for the sale of the realty. Mrs. May Nace Doyle, one of the heirs at law of E. S. Nace, received in the division the house and lot in question. Before the partition of the realty, Mrs. Doyle was fully advised of the contract between Nace and Mrs. Dowling. She recognized and ratified the agreement, and accepted from Mrs. Dowling the monthly rental as stipulated until Mrs. Dowling had procured the full amount due upon the two fi. fas. against J. L. Dowling, her husband, and had tendered the same to her. The tender was unqualified and unconditional. Nevertheless Mrs. Doyle refused to accept the money and repudiated the agreement. Whereupon Mrs. Dowling filed her petition against Mrs. Doyle, for specific performance of the contract, therein continuing the tender. Subsequently Mrs. Doyle filed an affidavit before a notary public and ex-officio justice of the peace, in which she alleged that J. L. Dowling was her tenant and that he was holding over and beyond his term. Upon this affidavit a warrant was issued to evict <T. L. Dowling from the premises. Thereupon Mrs. Dowling filed the present equitable petition, alleging in substance the facts above set forth, and praying that the eviction warrant be enjoined. The defendant demurred and answered. In her answer she admitted the making of the contract substantially as set forth in the petition and notice thereof before the division of the realty, except in the following particulars: The property was to be redeemed within six months after the sale of it by the sheriff; and upon failure to redeem, the fi. fas. against J. L. Dowling were to be canceled of record, and neither J. L. Dowling nor his wife was to have any further interest in the property or any further right under the. contract. She further alleged that in August, 1917, more than a year after the sheriff’s sale, Mr. Dowling advised Mr. Nace that he could not and would not redeem the property, and demanded» a cancellation of the fi. fas. Mr. Nace thereupon ordered the cancellation of the fi. fas., and they were canceled before Nace’s death. The defendant further pleaded that Mrs. Dowling had attempted to purchase the property from the' defendant since the death of Mr. Nace, and had otherwise recognized the defendant’s absolute title thereto. The evidence on behalf of the plaintiff and the defendant at the interlocutory hearing tended to sustain the allegations of the parties respectively. The judge who heard the cause rendered the following judgment: “Upon consideration of this ease which has been duly submitted, it appearing to the court that the contract relied upon by the plaintiff, not being in writing, is too indefinite to be enforcible, the restraining order heretofore granted is hereby dissolved.” Mrs. Dowling excepted.</p>

<p>Condemnation under liquor law. Before Judge Spooner. City court of Bainbridge. June 21, 1918.</p> <p>A policeman and arresting officer of the City of Bainbridge, Georgia, on April 14, 1917, seized an automobile containing several bottles of malted liquors and about one half pint of alcoholic and spirituous liquors. The solicitor of the city court of Bainbridge instituted proceedings in behalf of the State, to condemn the vehicle, as prescribed in section 20 of the act of the General Assembly approved March 28, 1917 (Acts Ex. Sess. 1917, p. 7), being an act to amend and supplement the prohibition laws of the State, then in force. The owner of the automobile and the person in possession of it when it was seized resisted the proceedings, raised a question of the jurisdiction of the city court of Bainbridge, and attacked the act of 1917 on constitutional grounds. The court dismissed the proceedings, and the State excepted.</p>

<p>Action-for specific performance. Before Judge Bell. Eulton superior court. March 5, 1919. (See 147 Ga. 118.)</p>

Exceptions to auditor’s report. Before Judge Kent. Laurens superior court. February 7, 1919.

<p>Indictment for murder. Before Judge Graham. Bleckley superior court. September 27, 1919.</p>

<p>Claim. Before Judge Morris. Cobb superior court. March 13, 1919. '</p> <p>On May 6, 1884, John W. Hill executed to his son, Edward Young Hill, a writing which all parties to the case treat as a deed. All parties likewise agree, at least for the purposes of this ■case, that the deed conveyed all the property therein described to Edward Young Hill for his life, with remainder to his children.' On May 31, 1884, John W. Hill executed his will, and died soon after the making of it. His will was probated in solemn form on January 5, 1885. By separate items of his will the testator devised to his six children certain lands in severalty, with remainder to their children respectively. To his wife he devised certain lands for life, with remainder to his son, Benjamin H. Hill, with the exception of one tract of land which was devised to Edward Young Hill. Edward Young Hill was named as devisee in item six of the will. The land described in this item is the same as that described in the deed from John W. Hill to Edward Young Hill, of date May 6, 1884. Benjamin H. Hill was named as devisee in item nine of the will. Under this item Benjamin H. Hill took a life-estate only in all property devised to him, including the land in which an estate for life or widowhood had first been devised to testator’s wife. The tenth item of the will, so far as material here, is as follows: “The residue of my property both real and personal, whatever 'and wherever it may be, including that given to my wife in the third article when her estate therein is over, all goes to my son Benjamin, all that has been willed and deed to my wife, both land and Big Shanty property, all goes to Benjamin except the little Babb mill place” (devised to Edward Young Hill). Elvira S. Hill, the wife of testator, and Edward Young Hill were appointed executors of the will and guardian's and trustees for the minor children. The testator was survived by his wife, his daughter (Mrs. May D. Lunsford), and five sons, George, Edward Young, E, G., James M., and Benjamin H. At the time of the execution of the will and at the time of the testator’s death, two children were married and four of them were single. None of them had a child or children. The executors named in the will qualified. The testator’s wife died in 1892. Edward Young Hill died in 1918. He -was survived by his widow, Mrs. Tinie Hill, as his sole heir at law. He never had any children. He was in possession of all the property mentioned in the deed and'in the sixth item of the will at the time of his death. After the death of the surviving executor (Edward Young Hill), E. G. Hill was appointed administrator with the will annexed of the estate of John W. Hill. Upon application of the administrator (in possession) the ordinary granted an order for the sale of the land devised to Edward Young Hill for life and described in item six of the will. Benjamin H. Hill claimed the land. On the trial of the issue the court directed a verdict in favor of the administrator. To the directing of this verdict, and to the judgment rendered, thereon, the claimant excepted.</p>

<p>Complaint for land. Before Judge Park. J ones superior court. April 23, 1919.'</p>

Equitable petition. Before Judge Kent. Twiggs superior court. February 26, 1919. J. H. Wester filed a petition against T. F. Everett, praying for injunction, receiver, and other relief. The petition alleged substantially as follows: A. S. Holland and T. F. Everett bought from Lattimore Brothers a sawmill complete, including necessary equipment for its operation, and agreed to pay -therefor $1,800.

<p>1. The judgment overruling the general demurrer to the petition, not having been excepted to or set aside, was conclusive against the demurrant, and as to her it settled the law of the case, involving a construction of the will in question.</p> <p>2. That judgment concluded also the executor of the will.</p> <p>3. Evidence sufficient to support the allegations of the petition authorized a verdict for the plaintiff; and the direction of a verdict for the defendants was erroneous.</p>

<p>Equitable-petition. Before Judge Worrill. Bandolph superior court. March 31, 1919.</p>

Equitable petition. Before Judge Ellis. Pulton superior court. April 15, 1919. J. M. Speer and Mrs. Maud R. Speer brought their petition against John W. Alexander, and sought injunction and cancellation of a certain promissory note given to the defendant by the plaintiffs for the purchase-price of a certain business.

<p>* Equitable petition; Before Judge Hardeman. Candler superior court. May 7, 1919.</p>

<p>1. The operation of a pool or billiard room for public entertainment is a business which, from its very nature, admits of strict regulation under the police power. Trammell v. Yancey, 142 Ga. 553 (83 S. E. 114); Trammell v. Borne, 142 Ga. 602 (83 S. E. 221) ; Booth v. Illinois, 184 U. S. 425 (22 Sup. Ct. 425, 46 L. ed. 623) ; Murphy v. California, 225 U. S. 623, 629 (32 Sup. Ct. 697, 56 L. ed. 1229, 41 L. R. A. (N. S.) 153).</p> <p>(a) The police power may be exercised by the.State, and it is now settled that the right to exercise it may be delegated by the State to a municipal corporation created by the State.</p> <p>2. Where a municipality is authorized to regulate a lawful business, trade, or profession under the police power, but is without express charter authority to prohibit entirely such business, trade, or profession within the city, an ordinance enacted in pursuance of the power to regulate must be a reasonable exercise of the ^ power. This is true where the power is conferred under the usual general welfare clause, and where it is conferred expressly and the mode of its exercise is not prescribed. Manor-y. Bambridge, 136 Ga. 777 (71 S. E. 1101), and cases there cited; Gutsinger y. Atlanta, 142 Ga. 555, 565 (83 S. E. 263, L. R. A. 1915B, 1097, Ann. Cas. 1916C, 80); 2 Dill. Mun. Cor.. (5th ed.) § 600.</p> <p>3. All reasonable regulations designed to confine the business of keeping pool rooms for public use within a municipality to responsible persons of good character are valid. To that end municipal authorities may require, as a condition precedent to one’s engaging in such business, (1) the making of a written application and the granting of a license thereon; (2) the giving of a solvent bond, conditioned to .keep an orderly house or -room, to observe the ordinances of the city and. the regulations prescribed for such business, and to pay 'all fines imposed for the violation of municipal ordinances. Bhurman v. Atlanta, 148 Ga. 1 (95 S. E. 698) ; Ganvpbell v. Thomasmlle, 6 Ga. App. 212 (5, 7), 232, 233 (64 S. E. 815).</p> <p>4. Municipal authorities clothed with charter power may provide that any violation of the ordinance under which a license to operate a pool room for public use is granted shall ipso facto revoke the license to conduct such business. Properly construed, "sueh power authorizes the municipality to revoke the license only for cause. Gassidy v. Macon, 133 Ga. 689 (66 S. E. 941) ; Blmrman v. Atlanta, Campbell v. Thomasmlle, supra.</p> <p>5. A municipality, under the usual general welfare clause of its charter, may provide that pool rooms conducted for .public entertainment within the city shall not be kept open between the hours of 7 p. m. and 6 a. m., or on Sundays or holidays or “such days as the mayor and council shall direct.” Morris v. Rome, 10 Ga. 534; 1Vatson v. Thomson, 116 Ga. 546 (42 S/E. 747, 59 L. R. A. 602, 94 Am. St. R. 137); Campbell v. Thomasmlle, supra. If the mayor and council should arbitrarily enforce such provision, the courts would afford a remedy. Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. 1064, 30 L. ed. 220).</p> <p>(a) A provision of a municipal ordinance making it unlawful for any person to sell, or offer for sale, any article of merchandise in a pool room, or to carry on or conduct any other business, trade, or calling at such place, is not an unreasonable exercise of the police power.</p> <p>(b) A license (as distinguished from a tax for the purpose of raising revenue) of $125 on the first table, $100 on the second table, and $75 on the third and each additional table kept in a pool room for public entertainment, is prima facie valid.</p> <p>6. The business of conducting pool or billiard rooms for public entertainment may, under the usual general welfare clause of a municipal charter, be confined to' reasonable territorial limits within the municipality.</p> <p>7. The general welfare clause of the charter of the City of Ocilla provides that “the mayor and aldermen of said city shall have full power and authority to pass or enact all ordinances or by-laws . . for the prevention of disorderly or immoral conduct, and conduct liable to destroy the peace and tranquillity of any citizen therein, or a sojourner therein, and every other by-law, resolution, and ordinance that may seem necessary and proper for the security of the peace, health, order, and good government of said city.” Acts 1902, p. 525, sec. 35. Section 42 of the charter {page 539) confers upon the municipal authorities the power to “tax and license billiard and pool tables; . , . any person or persons doing a brokerage business, or pawnbrokers in said city; . . or any other business, trade, or profession carried on in said City of Ocilla; and they shall pass all ordinances necessary to carry into effect this section.” Section 28 of the charter ■ (p. 535) confers upon the municipal authorities the power to “revoke at any time any license that maybe granted by their authority, for the violations of the ordinances, rules, and regulations granting the same, or when it shall to them appear that it is to the best interest of the city to do so.” Under such charter provisions the city has the power to license and regulate pool or billiard rooms kept for public entertainment with the city; and, applying the principles stated in the foregoing headnotes, none of the provisions of the pool-room ordinance enacted by the mayor and council of Ocilla appear to be unreasonable, except the provision confining the operation of pool rooms to certain designated portions of two named streets within the city. The limitations prescribed by the ordinance are, under all the facts appearing in the record, unreasonable.</p> <p>(a) The provision of the ordinance restricting the territory in which pool rooms may be conducted within the city, and which we have held to be unreasonable, is not such a vital part of the ordinance, and is not so interwoven in the whole legislative scheme, as to render the entire ordinance void.</p> <p>8. Under the general law of this State, the sale of “all liquors and beverages or drinks made in imitation of or intended as a substitute for beer, ale, wine, or whiskey, or other alcoholic or spirituous, vinous, or malt liquors, including those liquors and beverages commonly known and called near-beer,” is prohibited. Acts Ex. Sess. 1915, pp. 77, 80, sec. 1. Section 3 of the act just cited provides that “it shall not be lawful or authorized for the State, or any county or municipality therein, to license within this State the sale, dealing in, or furnishing of any of said prohibited liquors or beverages, including imitations of or substitutes therefor.” The ordinance enacted by the mayor and council of the City of Ocilla, fixing a license or tax of $300 on all dealers in “near beer or any other imitation of beer, eider, apple juice, or any imitation of cider, or any non-alcoholic drink which is an imitation of an alcoholic drink,” is void and unenforceable, because the sale of such beverages is prohibited by the general law of the State.</p> <p>(«) While the sale of cider and apple juice is not prohibited by the general law of the State, this court will not presume that the municipal authorities intended to exact a tax of $300 of dealers in cider and apple juice alone. The invalid part of the ordinance is therefore so interwoven with the valid as to destroy the whole municipal legislative scheme.</p> <p>9. On its facts this case is not within the general rule that courts of equity will not enjoin threatened criminal prosecutions, but it falls within the exception thereto. See Carey v. Atlanta, 143 Ga. 192 (84 S. E. 456, L. R. A. 1915D, 684, Ann. Cas. 1916E, 1151); Baldwin y. Atlanta, 147 Ga. 28 (92 S. E. 630).</p>

Complaint; equitable intervention. Before G. E. Maddox, judge pro hac vice. Walker superior court. May 3, 1919. On November 14, 1913, Robert Martin agreed to sell to Paul I). Wright, for the sum of $1900, a certain tract of land in the eighth'district and fourth section of Walker county, to wit, lot No. 245, except four acres in the southeast corner thereof. The contract, which was in writing, contained no other exception or reservation.

Injunction, and receivership. Before Judge Thomas. Cook superior court. May 27, 1919. J. P. DeYane brought his petition against Mrs. Lollie Bell DeYane as administratrix o£ the. estate of J. G. DeYane, for injunction, receiver, etc. It appears that J. G. DeYane died on October 31, 1918, leaving a considerable estate of real and personal property. His widow was appointed administratrix upon his estate, and qualified as such.

<p>Equitable petition. Before Judge Rourke (of the city court). Chatham superior court. December 30, 1918.</p> <p>In September, 1912, Ebenezer Morgan entered into a contract with the Masonic Temple Association, a corporation, of Chatham county, Georgia, to build a five-story reinforced-conerete building on land known as No. 39 Jasper ward in the City of Savannah, Chatham county, then owned by the association. Morgan immediately entered into possession of the tract of land and began the construction of the building. At the completion of the building according to his contract, the association owed him therefor $29,726.83. Within three months after- the completion of the building, Morgan recorded his mechanic’s or contractor’s lien in the office of the clerk of the superior court of Chatham county, and within twelve months after his debt against the association became due he brought suit against the association, and recovered a judgment, which was declared to be a general lien upon all the property of the association and a special lien upon said lot No. 39. The assets of the association consisted of that lot, and of subscriptions to its capital stock by various persons, amounting to $20,000. The officers of the association had neglected to collect the amount of these subscriptions, and had practically abandoned the association. On December 1, 1914, and while the work of improving the. lot was in progress, but before the completion of the building and the recording of the contractor’s lien, the association executed a trust deed to the Eeal Estate Bank and Trust Company, a corporation, of Chatham county, by the terms of which it conveyed lot No. 39, Jasper ward, to secure an issue of bonds amounting to $100,000. On June 18, 1915, the trustee named in the deed resigned, and the Oglethorpe Savings and Trust Company, also of .Chatham county, was substituted as trustee. The trust deed was properly recorded before the completion of the building by Morgan, and before his lien was recorded. The bonds were not sold, but were hypothecated with the trustee as security for the payment of several items of indebtedness amounting to $60,026.20, due and owing to various named persons. Each of the debts so secured was -incurred by the association prior to the execution of the trust deed. At the time of the execution of the' trust deed the trustee named therein, the substituted trustee, and the several creditors had actual knowledge of the pendency of the plaintiff’s contract and notice of his claim of lien. The trustee nevertheless claimed that its title was superior to Morgan’s adjudicated lien. Morgan was unable to pay the creditors whose claims were secured by the hypothecation of the bonds of the association; whereupon he filed his petition in equity in Chatham superior court, returnable to the October term, 1918, naming the association and the trustee as parties defendant. In addition to the foregoing, he alleged that the assets of the association were rapidly deteriorating; and ho prayed that a receiver be appointed to collect the unpaid subscriptions and to protect the property of the association, that the court determine between the plaintiff and the trustee the due and proper relation between their liens, that the assets of the association be marshaled and all priorities determined, and that-he have such further relief as the court should deem proper in the premises. The association answered, admitting substantially all the allegations of the plaintiff’s petition, and, in effect, consenting to the appointment of a receiver as prayed. The trustee filed demurrers, both general and special, to the petition. It also answered. At the December term, 1918, of Chatham superior court these demurrers were overruled; and the court appointed a receiver for all the properties and assets of the association, as prayed in the petition. The case was submitted upon the verified petition, the answer, and the affidavit of J. E. Jaudon. The trustee excepted to the overruling of its demurrers, and to the appointment of a receiver.</p>

<p>1. Section 28 of the act approved August 20, 1913 (Acts 1913, p. 145), entitled, “An act to cany into effect in the City of Atlanta the provisions of the amendment to paragraph 1 of section 7 of article 6 of the constitution of the State of Georgia, ratified October 2d, 1912,” etc., is not unconstitutional on the ground that it is a special law in a case for which provision is made by a general law.</p> <p>2. Nor on the ground that it confers upon the clerk of the municipal court of Atlanta powers which are judicial in their character.</p>

Certiorari; from Court of Appeals. 23 Ga. App. 434. Commercial National Bank of Macon, being embarrassed financially, on August 1, 1914, decided to liquidate and wind up its banking business. To that end it entered into a contract with American National Bank of Macon, a copy of which is set forth in the opinion of the Court of Appeals, which opinion is brought here for review by a writ of certiorari, and it is unnecessary to set out this lengthy contract again.

<p>Equitable petition. Before Judge Pendleton.. Eulton superior court. March 5, 1919.</p>

<p>Claim. Before Judge Bell. Fulton superior court. March 6, 1919.</p>

The Court of Appeals certified the following questions (Case No. 10206); “1. Viewed in connection with the several excerpts from the charter, constitution, and by-laws of the Atlanta Loan and Saving Company, hereinafter quoted, is that company a ‘building and loan association’ or ‘a like association,’ within the meaning of the act of 1913, ‘to amend section 2878 of the Code of 1910,’ etc. (Ga. L. 1913, p. 54) ? “2.

Attachment for contempt. Before Judge Thomas. Cook superior court. May 28, 1919. In July, 1916, J. J. Littlefield filed suit against the Town of Adel, and on the trial of the case in November, 1917, obtained a judgment for a stated sum of money against the defendant. The latter filed a motion for a new trial on November 21, 1917, and the motion was set for a hearing on the second Monday in January following. This hearing was continued from time to time.

<p>The Court of Appeals certified, certain questions (in Case No. 10351), to which the rulings in the foregoing headnotes are answers.</p>

<p>Petition for injunction, Before Judge Meldrim. Chatham superior court. May 10, 1919.</p> <p>The plaintiffs filed a petition praying for injunction against the tax-collector and the sheriff of Chatham county, alleging that they are automobile dealers selling several makes of automobiles, and that the tax-collector, Fred Oler, has assessed each of them $165 upon each make of automobile, under subsection 12 of seer tion 2 of the general tax act of 1918 (Acts 1918, p. 47), which imposes a tax of $165 for each make of automobile sold by the dealer; and that the section of the act imposing this tax is unconstitutional in that it is discriminatory: (a) It makes an arbitrary, discriminatory, and unreasonable classification between dealers who deal in one make of automobile and dealers who sell more than one make, without reference to the value of the automobiles sold, the number of automobiles sold, the gross or net profits received therefrom. (6) It makes an arbitrary, discriminatory, and unreasonable classification in favor of persons who take automobiles in exchange from others and resell them, (c) It makes an arbitrary, unreasonable, irregulai „ and uniform classification in providing a tax of only $27.50 in counties with a smaller population than 20,000 inhabitants, $5u.00 in counties of a smaller population than 30,000, $82.50 in counties with a population less than 50,000, $110.00 in counties with a population of less than 75.000, and $165.00 in counties of less than 100,000 population, thereby offending the .due-process clause of the State and'Federal constitutions and the tax-uniformity clause of the State constitution.</p> <p>The judge of the superior court held that the statute was constitutional, and refused an injunction; and to this judgment the plaintiffs excepted.</p>

<p>The Court of Appeals certified the following questions (Case No. 10404) :</p> <p>“The exceptions pendente lite in this case (omitting formal parts) are as follows: '(1) That at the September term, 1918, of Putnam superior court, he [the defendant] was convicted for the violation of the prohibition law, in that he was convicted for operating a still and illegally making and manufacturing whiskey. (2) That upon the call of said case there was no formal arraignment nor plea entered; and that after a jury had been empaneled and the State’s first witness was upon direct examination* defendant’s attorneys discovered for the first time a fatal defect in the indictment upon which defendant was being tried [the alleged fatal defect being that the indictment charged that the offense was committed ‘on the 6 day of July, nineteen hundred and — ’]; that this was not negligence on the. part of defendant nor his counsel, for the reason that defendant, being a poor man, was not able to employ counsel until a few minutes before his case was called, and, in the hurry and confusion and trying to expedite the business of the court, the error and defect was only then discovered. Defendant called the same to the attention of the court, and the circumstances, and offered to demur and moved to quash, but, upon objection from the State, was overruled. (3) That after verdict defendant moved in arrest of judgment, and said motion is now of file and contains the allegations set out herein. And now in open court at the said September term, 1918, and within the time allowed by law, he presents the exceptions and prays that the same may be certified and allowed. Defendant excepts: (1) To the ruling of the court ordering him to trial without formal arraignment and plea. (2) To the ruling of the court refusing the defendant the right to demur and move to quash. ' (3) To the order of the court overruling the motion in arrest of judgment. And says all of these errors of which he complains.’</p> <p>“The main bill of exceptions contains the following recitals: ‘Upon the call of said ea'se there was no formal arraignment nor plea entered, and, after the State had examined its first witness in chief and turned the same over to counsel for'the defendant for cross-examination, defendant’s counsel for the first time had an opportunity to see the indictment and discovered a fatal defect in the indictment, to wit, [the indictment] charged the offense as having been committed on the 6’th day of July, nineteen hundred and — , and offered to demur to the indictment, and the court overruled the same; and the defendant moved to quash the indictment on the grounds that said indictment charged the defendant with committing the offense in the year nineteen hundred, and there were no allegations in the indictment or exceptions stated therein to take it out of the bar, therefore the 'offense was barred by the statute of limitations; to which offer to be allowed to demur and motion to quash the court overruled on the ground that defendant had waived the defect by going to trial. Whereupon the defendant stated that he had not waived arraignment and had not been called upon to do so, and declined to waive arraignment, and demanded that he be arraigned, which the court overruled on the ground that he waived being formally arraigned by engaging in the trial; which rulings of the court the defendant excepted pendente lite/ The main bill of exceptions contains a proper assignment of error upon the exceptions pendente lite.</p> <p>"Did the court err in refusing to allow the defendant to demur to the indictment, or in refusing to quash the indictment, or in overruling the motion in arrest of judgment ? See Bryans v. State, 34 Ga. 323/-’</p>

<p>Exceptions to auditor’s report. Before Judge Kent. Laurens superior court. May 24, 1919.</p>

<p>Exceptions to auditor’s report. Before Judge Littlejohn. Lee superior court. January 1, 1919.</p>

<p>The Court of Appeals certified the following questions (Case No. 9481) :■</p> <p>“1. Where a suit for personal injuries is brought against q railroad company under the Federal employers’ liability act, and the injuries could have been avoided by the exercise of ordinary care by the plaintiff, will the failure to exercise such care bar a recovery, or is this to be treated simply as contributory negligence which would diminish the recovery, if the railroad company was also shown.to be negligent?</p> <p>“2. Relatively to an ‘extra-gang foreman’ of a railroad, whose duty it was to repair and surface the track and keep the road-bed and the track in proper shape and passable for trains, is it negligence on the part of the railroad company to pile up slag, dirt, and stones — a general mixture for ballasting the road-bed, in such close proximity to the track that the vibration from passing trains would cause some of it to fall upon the track, and thereby cause the derailment of a hand-car in which the plaintiff (the extra-gang foreman) was riding for the purpose of repairing the track?</p> <p>“3. Under the circumstances mentioned in question number 2, was the danger of the derailment of the hand-car in which the plaintiff was riding an ordinary risk and hazard of his occupation, or was it a risk not naturally incident to the occupation, but arising out of the failure of the railroad company to exercise due diligence with respect to providing a safe place of work for its employees?</p> <p>“4. Under the circumstances stated in question number 2, where the hand-car upon which the plaintiff was riding was derailed when going around a curve before he had reached the piece of track he was intending to repair, and where upon the trial the plaintiff himself testified: ‘I could see the slag before I got to it. As far as seeing it was concerned, it was all along there; we had to contend with that every minute we were running. I knew all the time that that was the condition we worked under. I knew that it was the way we unloaded stuff several times. . . That was the common condition; looking at it, you understand. . . « Going around that curve I saw this condition ahead of me. I seen the stuff piled up on the outside of the rail ahead of me. . . My car continued at the rate of about ten miles. . . I said a pebble about as big as your thumb, or something of that sort, would derail the wheel. I don’t know how large that was we ran over. The cause of the derailment was this stuff falling down on the track. . . The matter of protecting the hand-car is one of the duties of the foreman. . . The section-foremen are the men of all other men whose duty it is to have a safe road-bed for the trains to go back and forth over. The company has to look to them to do it. . .1 had four men on the car, going about ten miles an hour around the curve, and did not send a flagman around the curve. . . It is my duty to flag around all dangerous places. . . I was in charge of my lever-car there and in control of it. The men on it were subject to my orders. I could tell them to slow down, and it was their duty to do it. . . I had railroaded for thirty-five to forty years in all capacities almost. . . When a foreman, extra-gang man, or ordinary foreman goes out on the railroad-track it is his duty to be on the lookout for any and all -sorts of defects.- He carries the eyes of the railroad company, so far as finding defects. . . When I started out it was as much my business and as much my duty to be looking out for spikes that might be loose or any sort of defect that might exist in the track as Well* as it was [for looking out] for the bucked track. That was true not only on that particular trip but it was true all the time. . . I didn’t know just where the bucked track was, but it is a fact that it usually bucks on curves. . . I had not gotten to the bucked track when my lever-ear was derailed. . . I knew that the shaking and running of trains would cause it [the slag] to fall down. . I knew that two trains had come over this track about a couple of hours before that. . . The passenger-train bad just come over this same piece of track. . . It was immediately after these trains passed that I left Hombre to go out on my lever-car. . Yes, it is also true they run extra trains up there on that road. They get up a train of coal-cars and send them off down to the mines to be loaded extra; and I wouldn’t know what minute they might come on-me. . . This railroad is not very old. . . I forget the age of it. . . There was a great deal to do to bring it up to what railroad men call a standard or good railroad/ — was the presence of the ballast upon the road-bed, placed as it was in such close proximity to the track, and the danger of the same falling upon the track by the vibration of passing trains, and derailing the' hand-car in which the plaintiff was riding, ordinary risks and hazards of the plaintiff’s occupation, which he had assumed, and defects and risks which were known to him, or which were plainly observable? Under such circumstances, was the plaintiff entitled to recover even if the defendant were negligent in so placing and maintaining the ballast upon the road-bed? See, in this connection, Sclilemmer v. Buffalo R. R., 220 U. S. 590 [31 Sup. Ct. 561, 55 L. ed. 596]; Seaboard AirLine Ry. v. Horton, 233 U. S. 492 [34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475]; Roberts, Injuries to Interstate Employes, § 103; Richey on Federal Employers’ Liability Act, p. 154, § 65, p. 177, § 72, p. 186, § 75; Thornton on Federal Employers’ Liability Act (3d ed.), p. 173, § 110, p. 177, §§ 113, 114.”</p>

<p>Petition for injunction. Before Judge Harrell. Calhoun superior court. March 4, 1919.</p>

<p>Attachment for contempt. Before Judge Thomas. Thomas superior court. April 19, 1919. (See ante, 590, 101 S. E. 672.) Titus, Dekle & Hopkins, for plaintiffs in error.</p>