Volume 150 — Georgia Reports

<p>1. If one acts on representations not made to him and not intended by the declarant for him, he will do so at his own risk. Such declarations do not operate as an estoppel against the declarant.</p> <p>(a) Under the evidence in the record, estoppel is not involved in the case; and a charge on that subject was error as being not authorized by evidence.</p> <p>(b) It was also error to refuse to rule out, on motion, the evidence relied on to show estoppel.</p> <p>2. “A pending suit is a general notice of an equity or claim to all the world from the time the petition is filed and docketed; and if the same is duly prosecuted and is not collusive, one who purchases pending the suit is affected by the decree rendered therein.”</p> <p>3. The other grounds of the motion for new trial, in so far as they were sufficient to present a question for decision, are not of such character as to require a reversal.</p> <p>4. The petition as amended was not subject to any of the grounds of the demurrer.</p> <p>■5. It was not error to disallow the amendment to the defendants’ answer.</p> <p>6. The court did not err in refusing to dismiss the case on motion for non-suit.</p>

<p>]. Transactions between husband and wife, to the prejudice of credit-, ors, are to be closely scanned by a jury on the trial of an issue between creditors in whose favor an execution bas been levied upon property as the property of the husband, and the wife who claims the property.</p> <p>2. There was evidence authorizing the charge submitting to the jury the theory that the husband was insolvent, owning no property in Georgia, and furnished the money from his own funds with which the purchase of the property levied on was effected, though the title was taken in the wife’s name; and the court properly instructed the jury that such a transaction would in effect be a gift by the husband to the wife and render the property subject to a judgment in favor of the creditors against the husband.</p> <p>3. Under the court’s instruction it was left to the jury to say whether or not the husband had furnished the money with which to purchase the property the title to which was taken in the wife’s name; and it was not an expression of opinion of what was proved for the court to further instruct them that if they ascertained the facts hypothetically submitted to be true, the transaction would amount to a gift from the husband to the wife.</p> <p>4. If a husband, insolvent at the time and having no property subject to the demands of judgment creditors, makes a gift of property to his wife, such a gift would be void as against creditors, whether or not the wife had knowledge or notice of the- husband’s fraudulent intent. Civil Code, §§ 3224 (3), 4149.</p> <p>5. The court instructed the jury: “If the defendant in fi. fa. was insolvent and furnished the money to buy the property levied on, the title was taken in the wife’s name, in a proceeding of this sort, if it appeal's to involve dealings between husband and wife, which is challenged by a creditor for fraud, then the burden would be on the wife to show it was her own money that paid for the property, and unless she carried this burden, then such a transaction would be void as to creditors and the property would be subject to levy and sale by the creditor of the husband.” The evidence submitted, with the inferences which the jury were authorized to draw from it, authorized this charge.</p> <p>6. Where the depositions of a party to a case are taken under the provisions of the statute and introduced as evidence in the case, such evidence stands upon the same footing as that of any other interested witness; and it does not require the testimony of two witnesses, or one witness with corroborating circumstances, to overcome the testimony thus given.</p> <p>7. Nor did the court err in failing to charge as to the weight and effect of the answers of the claimant to questions propounded to her in depositions by counsel for plaintiff in attachment. The evidence of the claimant given in the examination by depositions was covered by the general instruction to the jury that they were the judges of the evidence and the credibility of the witnesses.</p> <p>S. The court instructed the jury in the following language: “But if the money was sent here by the husband, by check, in his name, not her name, sent here in his name, payable to the wife, if that money was used to buy this property, then I charge you, in this transaction of these issues made, the burden would be on the wife, the claimant.” While this charge might have been inaccurate in some respects, it stated the substance of the law upon one of the material issues in the case, and the court did not err in thus charging.</p> <p>{a)' Nor was this charge error in that it instructed the jury that the burden would be upon the claimant in the event the jury believed certain facts hypothetically stated to be the truth of the case.</p> <p>(6) Nor did the court err in refusing, on written request, to charge that “prima facie these drafts or cashier’s checks represented the money of that bank, and not money of the defendant in fi. fa.”</p> <p>9. The court charged the jury as follows: “This is a transaction attacked by creditors, between husband and wife, and the burden would be on the wife to. show it was her property, her money, her separate estate; and if it wasn’t, and she don’t carry that burden, it wasn’t her separate estate, and the money, the transaction would be a gift.” This charge Was erroneous; but when the charge is considered in its entirety, in view of the well-defined issues presented, the jury could not have been misled by this erroneous charge, and it was therefore not hurtful.</p>

<p>Claim. Before Judge Sheppard. Evans superior court. May 3, 1919.</p>

The Court of Appeals certified the following question (Case No. 10013): “Under section 3798 of the Civil Code, providing that in certain kinds of cases ‘all railroad companies shall be sued in the county in which the cause of action originated/ and that ‘any judgment rendered in any other county than the one in which the cause so originated shall be utterly void/ and in view of the decision in the case of Atlanta, Knoxville & Northern Railway Co. v. Wilson, 119 Ga. 782, was…

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. December 2, 1918.</p> <p>The exception is to a judgment sustaining a demurrer to a petition filed in 1918, by Mrs. L. M. Bruce against the Central Bank and Trust Corporation as receiver of the Neal Bank, and others, and dismissing the action. The petition alleged, in substance, as follows: J. L. Bruce on August 26,-1904, executed a promissory note payable to Mrs. L. M. Bruce, and a mortgage to her on described realty to secure the note; and' both instruments were delivered to her. Neither of the papers was ever indorsed or otherwise transferred by her, and they remained her property. In 1907 the Neal Bank instituted an action against the maker of the note for the amount thereof, and to foreclose the mortgage, alleging'a transfer thereof by Mrs. Bruce by indorsement. In 1914 the plaintiff’s attorney in that action amended the petition by striking the allegations as to transfer by indorsement, and substituting the name of Mrs. L. M. Bruce, suing-for the use of the Central Bank and Trust Corporation as receiver of the Neal Bank. Mrs. Bruce did not consent to the use of her name, and it was so used without her knowledge or authority, and was never ratified by her. Afterward a judgment was rendered in favor of the plaintiff, and the mortgage was foreclosed. Execution was issued, and the mortgaged property was about to be sold thereunder, and the money appropriated by the plaintiff in fi. fa. After the institution of proceedings to foreclose the mortgage, the Central Bank and Trust Corporation was duly appointed receiver for all the property, business, and affairs of the Neal Bank, 'and is now attempting to enforce the mortgage fi. fa. The purported indorsement by Mrs. Bruce of the note secured by the mortgage, under which the Neal Bank and its receiver claimed title to them and the right to use her name to sue for their use, was a forgery, if it ever existed, and w,as not her act and deed. Irrespective of the validity of the judgment of foreclosure against J. L. Bruce, and whether or not J. L. Bruce or any person will be estopped by that judgment from denying that the Neal Bank or its receiver had a right to use her name for the prosecution of said action and for the enforcement of the fi. fa., petitioner was not estopped by any judgment or otherwise from raising that question, because she was not a party to said action, and was not bound by what was done therein; nor has she ratified the action of the plaintiff in said case in attempting to use her name to sue for the use and benefit of the Neal Bank or its receiver. No reason exists in law or in equity why the Neal Bank should be permitted to use her name to sue for its use or that of another. She does not desire the mortgage foreclosed, and does not desire that the fi. fa. be levied, or that the land be exposed to sale. The sheriff is advertising the land for sale under the foreclosure, at the instance of the attorney for the receiver; and unless enjoined he will sell the land on the first Tuesday in March, 1918. On June 5, 1915, J. L. Bruce died, owning at that time the land described in the mortgage, and owning practically no other property. Petitioner is the owner of the note and mortgage, and is entitled to recover the amount due thereon from the estate of J. L. Bruce; and the Neal Bank, having no legal or equitable interest in the note and mortgage, is not entitled to recover or collect from the estate of J. L. Bruce any amount thereon, or on any judgment based on said note and mortgage. While the voluntary payment by J. L. Bruce to the Neal Bank would not have divested or affected petitioner’s lien upon the land, and would not have affected her right to recover from J. L. Bruce the amount due.on the note and mortgage, yet, since he is deceased, and since he left no property other than that described in the mortgage, and since a judgment has been obtained in a court of competent jurisdiction in favor of the Neal Bank against said property, if the property is sold under the execution, petitioner will be barred and estopped from proceeding against the property and subjecting it to the payment of the mortgage, and she will suffer irreparable loss. When the land is sold the estate of J. L. Bruce will be insolvent, and she will be unable to collect the amount due her. She prays for injunction to prevent enforcement of the judgment against the land, and to establish her title to the note and mortgage.</p> <p>The demurrer was on the ground that the petition alleged no cause of action at law or in equity, more particularly for the following reasons: (a) the defendant has title to the note and mortgage by prescription; (6) the plaintiff is barred by lapse of time and laches in bringing her action; (e) the name of Mrs. L. M. Bruce having been substituted as a plaintiff suing for the use of the bank to assert the rights of the bank, she was not a party to the suit in her individual interest, and had no legal right to control the litigation or the fi. fa., but such right was exclusively in the bank; (d) the object of the plaintiff in the present suit is to prevent the enforcement of the judgment against J. L.. Bruce and his property, and there being no allegation that J. L. Bruce does not owe the amount of the judgment, and no allegation that the mortgage foreclosed is not a lien upon -the property to be sold by the sheriff, the remedy of 'the plaintiff, if any, is not to prevent the sale but to claim the proceeds of the sale; and no reason is shown why the sale should not proceed against the property of J. L. Bruce. A further ground of demurrer is, that there is a misjoinder of parties defendant, no relief being prayed against the bank’s attorney and the sheriff, except that they be enjoined from enforcing the execution.</p>

<p>Complaint for land. Before Judge Sheppard. Liberty superior court. February 7, 1919.</p>

Equitable petition. Before Judge Worrill. Early superior court. April 9, 1919.

<p>Equitable petition. Before Judge Park. Hancock superior court. April 17, 1919.</p>

<p>Certiorari; from Court of Appeals. 23 Ga. App. 621.</p>

<p>Where an equitable petition was filed against several parties, and verdict and decree were rendered, determining and fixing the various conflicting claims and rights of the parties plaintiff and defendant, and a commissioner was named to execute the decree of the court by selling the land and making certain payments according to the terms of the decree, one who was a party to the suit in which the decree was rendered could not maintain an action against the commissioner to set aside the decree, and for injunction, without making the persons really at interest parties to the action.</p>

<p>■ Petition for injunction. Before Judge Eve. Tift superior court. June 14, 1914.</p>

<p>Petition for habeas corpus. Before Judge Highsmith. Jeff Davis superior court. June 19, 1919.</p>

The Court of Appeals requested instructions from the Supreme Court upon the following questions certified in Case No. 9931: “(a) Did a plaintiff have a right of action for the recovery of damages for personal injuries alleged to have been sustained on account of the negligent operation of the cars and trains of a railroad company, which, on the date of the alleged injury, had been taken over and w.as being operated under Federal control, by virtue of the proclamation of the…

<p>Petition to set aside judgment. Before Judge Kent. Laurens superior court. May 24, 1919.</p>

<p>Equitable petition. Before Judge Ellis. Fulton superior court. January 28, 1919.</p>

<p>Certiorari. Before Judge Meldrim. Chatham superior court. July 17, 1918.</p>

<p>Money rule. Before Judge Wright. Walker superior court. February 27, 1919.</p>

<p>1. A suit upon a note made jointly by two persons can not be maintained against one alone, where it does not appear that the other maker is dead or can not be found and served.</p> <p>2. A contract duly executed in writing for the sale of land, within the statute of frauds, can not be subsequently modified by an agreement in parol.</p> <p>3. The amendment offered by the plaintiffs and allowed by the court did not allege a valid reason for the action against but one of the two joint makers of the notes sued on.</p>

<p>Equitable petition. Before Judge ¡Hodges. Clarke superior court. April 18, 1919.</p>

<p>Equitable petition. Before Judge Hammond. Burke superior court. November 9, 1918.</p>

<p>Intervention. ■ Before Judge Hammond. Richmond superior court. January 20, 1919.</p>

<p>Injunction and receivership. Before Judge Thomas. Berrien superior court. February 13, 1919.</p>

<p>Equitable petition. Before Judge Smith. DeKalb superior .court. March 3, 1919.</p>

<p>Complaint for land. Before Judge Thomas. Thomas superior court. May 1, 1919.</p>

<p>Questions certified by Court of Appeals (Case No. 10389).</p>

Equitable petition. Before Judge Littlejohn. Sumter superior court. June 30, 1919.

<p>Equitable petition. Before Judge Mathews. Bibb superior court. June 30, 1919.</p>

<p>Indictment for murder. Before Judge Worrill. Early superior court. .June 21, 1919.</p>

<p>Indictment for murder. Before Judge Littlejohn. Schley superior court. June 21, 1919.</p>

<p>Habeas corpus. Before Judge Hardeman. Emanuel superior court. July 31,1919.</p>

<p>The description of this case, and the names of counsel, are the same as in the Johnson case, just preceding.</p>

<p>Complaint for land. Before Judge Thomas. Colquitt superior court. July 28, 1919.</p> <p>Mrs. J. A. Putnal filed suit, on August 28, 1917, to recover certain lands of which her father, D. E. Willis, died seized and possessed on August 8, 1890. A temporary administrator of the estate of the deceased was appointed and qualified on August 8, 1890, and was formally dismissed at the February term, 1891, of the court of ordinary. No permanent administrator was ever appointed, so far as the record discloses. The deceased left a widow and only one child, Mrs. Putnal. The widow sold the land, on October 30, 1891, to J. B. Sinclair, predecessor in title of the defendant, and executed a deed, the habendum clause of which was as follows: "The same to have and to hold unto the said J. B. Sinclair, his heirs and assigns, forever in fee simple.” This deed was recorded on December 13, 1893. The defendant has been in possession of the land since December 24, 1913. The plaintiff has never been in possession of any of the land. On the trial the plaintiff sought to introduce in evidence a transcript of the record purporting to set apart the whole of the land as a years? support to the widow and child. This judgment of the court of ordinary had previously- been declared void by this court. Putnal v. Hickman, 148 Ga. 621 (97 S. E. 668). The object of the proffered evidence was to show that the widow believed that she was conveying to Sinclair a title to the land which she had derived from the judgment of the court of ordinary setting aside the year’s support, and that her deed was not intended as an election to take ra child’s part. On objection the court refused to admit the evidence; there being no evidence, except the deed, tending to show whether or not the widow had elected to take a child’s part. The court ruled that the deed was conclusive proof that the widow had elected to take a child’s part, and directed a verdict in favor of the plaintiff for one half undivided interest in the land and one half of the mesne profits. The plaintiff moved for a new trial, upon the general grounds, and upon the refusal of the court to admit in evidence the transcript of the record in regard to year’s support, and the direction of a verdict for a half interest instead of the whole interest in the land and mesne profits. The motion was overruled, and the plaintiff excepted.</p>

<p>Complaint for land. Before Judge Irwin. Paulding superior court. September 5, 1919.</p>

<p>Indictment for murder. Before Judge Tarver.., Bartow superior court. October 11, 1919.</p>

<p>Indictment for murder. Before Judge Graham. Bibb superior court. November 28,1919. (See 24 Ga. App. 677, 102 S. E. 39.)</p>

<p>Questions certified by Court of Appeals (Case No. 10706).</p>

<p>Indictment for murder. Before Judge Cobb. Jackson superior court. November 6, 1919.</p>

<p>Temporary alimony, etc. Before Judge Iiodges. Franklin superior court. November 28, 1919.</p>

<p>Indictment for murder. Before Judge Kent. Twiggs superior court. November 5, 1919.</p>

<p>Alimony. Before Judge Gower. Ben Hill superior court. November 22, 1919.</p>

<p>Indictment for murder. Before Judge I-Iighsmitli. Camden superior court. June 6, 1919.</p>

<p>Indictment lor murder. Before Judge Higbsmitb. Glynn superior court. October 11, 1919.</p>

<p>Application for mandamus (original).</p>

<p>Certiorari; from Court of Appeals. 23 Ga. App. 770.</p>

Receivership'. Before Judge Jones. Hall superior court. July 7, 1919. Mrs. A. E. Maynard brought her petition against J. M. Barrett, and alleged substantially as follows: She is the owner in fee simple of a certain house and lot in Hall County, which in the fall of 1915 she rented to the .defendant for $12.50 per month, and since that time he has occupied the premises.

<p>Validation of county bonds. Before Judge Summerall. Ware superior court. July 26, 1919.</p>

<p>Ejectment. Before Judge Highsmith. Wheeler superior court. July 29, 1919.</p>

<p>Equitable petition. Before Judge Graham. Telfair superior court. July 12, 1919.</p>

<p>Indictment for murder. Before Judge Howard. Muscogee superior court. November 29, 1919.</p>

<p>Certiorari. Before Judge Graham. Pulaski superior court. June 5, 1919.</p>

<p>Petition for rule. Before Judge Tarver'. Whitfield superior court. June 16, 1919.</p>

<p>Injunction. Before Judge Pendleton. Fulton superior court. May 22, 1919.</p>

<p>Equitable petition. Before Judge Sheppard. Evans superior court. June 5, 1919.</p>

<p>Habeas corpus. Before Judge Bell. Fulton superior court. July 22, 1919.</p>

<p>Habeas corpus. Before Judge Kent. Laurens superior court. July 17, 1919.</p>

<p>1. Within proper limitations the legislature may enact that when specified facts have been proved they shall be prima facie evidence of the guilt of the accused or of some other named fact essential to the proof of the crime charged. And the provision in section 22 of the act of the legislature passed at the extraordinary session of 1917 and approved March 28, 1917 (Act Ex. Sess. 1917, p. 7), which declares that when certain specified apparatus is found upon the premises of one accused of violating the statute it shall be prima facie evidence that the person in actual possession of the premises referred to had knowledge of the existence of the apparatus on the premises, does not render section 22 of the act referred to violative of the due-process-of-law clause of the (Federal or the State constitution;</p> <p>2. The evidence authorized the verdict.</p>

<p>Habeas corpus. Before Judge Smith. DeKalb superior court. August 1, 1919.</p>

Habeas corpus. Before Judge Searcy. Hpson superior court. May 21, 1919. Martha J. Harris, the widow of Thomas J. Harris, brought habeas corpus against William Baines, to secure possession and custody of Boxie Harris, her daughter, who was fifteen years of age. Thomas J. Harris died in 1918, having been killed by parties unknown. Decedent left a will appointing William Baines as the testamentary guardian of his daughter, Boxie Harris.

<p>Equitable petition. Before Judge Tarver. Gordon superior court. August 28, 1919.</p> <p>Mrs. S. A. Gillespie in the year 1918 brought her petition against W. J. and R. J. Gillespie, her sons (referred to in the testimony as Jim and Bob Gillespie), alleging that the sum of $3,000, which was her property, was invested by the defendants in a certain described tract of land; that this land was bought by her sons, and a deed conveying the property to them was executed by the vendor; that it was understood between the petitioner and her sons that the sons could take a deed in their own names, “on the agreement that the land was to be hers, and when it was sold the money was to be hers; if the land was not sold a deed was to be made putting the title in her whenever she demanded;” that the defendants had not sold the land, had not repaid petitioner the money, and had not executed a deed to her, although she had demanded it. She does not know what arrangements defendants have made between themselves with regard to the land, but her understanding is that Jim has secured a deed from Bob to his’pretended half interest in the land, and that Jim now claims title to the entire interest. Petitioner has insisted that Jim comply with his agreement to convey the land to her. He has promised to comply, but has sought to evade petitioner ti and put off her demand from time to time. At one time she agreed to accept a deed to 100 acres of the land on which the house is located, in order to avoid a lawsuit. Jim Gillespie has also borrowed certain money and given a deed to the property to secure the payment of the sum so borrowed, and he has conveyed 160 acres of the land to named persons. None of the vendees in these deeds were made parties to the petition. The plaintiff prays for injunction restraining the defendants from transferring, assigning, or collecting the notes given for the purchase-money of the 160 acres of land sold; that she be decreed to have title to all the land described except this 160 acres; and for specific performance of the agreement to convey.</p> <p>At the trial, after submission of evidence by the plaintiff, the court granted a nonsuit. To this judgment the plaintiff excepted.</p>

<p>Questions certified by Court of Appeals (Case No. 10179).</p>

<p>Divorce, etc. Before Judge Pendleton. Fulton superior court. September 12, 1919.</p>

Indictment for murder. Before Judge Humphries. Fulton superior court. September 20, 1919. Will Jenkins was indicted and tried for murder; and a verdict of guilty, with a recommendation to mercy, was returned. A motion for new trial was overruled, and the defendant excepted.

<p>Attachment for contempt. Before Judge Morris. Cobb superior court. September 27, 1919.</p>

Injunction and receivership. Before Judge Wright. Floyd superior court. July 2, 1919. Upon application of Johnson and of Sanders (the latter claiming title and right of possession under the former), a receiver was appointed for crops growing on 130 acres of land, and the defendants, John Smith and his wife Nora, were enjoined from interfering therewith.

<p>Petition for injunction. Before Judge Terrell. Carroll superior court. July 9, 1919.</p>

<p>Divorce. Before Judge Black (of tbe city court). Bichmond superior court. July 17, 1919.</p>

<p>Habeas corpus. Before Judge Summerall. Coffee superior court. July 26, 1919.</p>

<p>Petition for mandamus. Before Judge Mathews. Bibb superior court. November 24, 1919.</p>

<p>Claim. Before Judge Hardeman. Bulloch superior court. April 15, 1919.</p>

<p>Habeas corpus. Before Judge Pendleton. Fulton superior court. October 20, 1919.</p>

<p>Indictment for murder. Before Judge Mathews. Bibb superior court. July 29, 1919.</p>

<p>Complaint. Before Judge Morris. Cobb superior court. July 25, 1919.</p> <p>G. W. McMillan brought suit upon a promissory note against M. M. Simpson. The defendant filed his plea and answer, and set up as a defense to the suit that the promissory note sued on, together with another note for a stated amount, had been given for the purchase-price oí a cottón-gin, a cotton-press, and certain other machinery. The note first falling due had been paid. The defendant pleaded failure of consideration, alleging that the machinery was not adapted to the purposes intended, that the plaintiff at the time of the sale knew this, 'and that he had induced the defendant, by certain fraudulent representations as to the value of the machinery, etc., to make' the purchase and give the notes, one of which is now sued on. The defendant also pleaded certain matters by way of recoupment. The plea of recoupment was stricken, but the demurrer filed by the plaintiff to the plea of failure of consideration was overruled. Upon the trial the jury returned a verdict for the plaintiff for the amount sued for. A motion for a new trial was made by the defendant, which was overruled, and defendant excepted and brought the case to this court for review.</p>

<p>Equitable petition. Before Judge Eve. Worth superior court. July 29, 1919.</p>

<p>Indictment for murder. Before Judge Thomas. Colquitt superior court. September 6, 1919.</p>

<p>Equitable petition. Before Judge Hardeman. Bulloch superior court. April 15, 1919. .</p>

<p>Petition for injunction. Before Judge Graham. Pulaski superior court. September 10, 1919.</p>

Equitable petition. Before Judge Hardeman. Washington superior court. September 5, 1919.

<p>1. At chambers, before the return term, the court had no authority to dismiss the plaintiff’s petition.</p> <p>2. The trial judge did not err in awarding temporary alimony and attoi’neys’ fees, and in granting an interlocutory injunction restraining -the defendant from disposing of certain property pending the determination of the issues of the case on final trial.</p>

<p>1. Upon the petition of a minority stockholder, brought against the majority stockholders in a certain corporation, receivers were appointed to take possession of the entire property of the corporation, and injunctive reliéf was granted against the creditors of the corporation. A creditor having a mortgage for a large amount, who had not been notified of the proceedings for the appointment of a receiver, filed a petition showing that he was the holder of a mortgage containing a power of sale, and prayed that the judgment granting injunction and appointing the receivers should be modified and dissolved so far as it affected the' petitioner’s rights in the enforcement of his mortgage according to the terms thereof. The court refused the prayers of the petition. Held, that notwithstanding the introduction of evidence at the hearing, tending strongly to show that a sale of the properties of the corporation which had been put in the hands of receivers, to a third person would be greatly to the advantage of the creditors of the corporation, and that all the claims against it would be paid and especially the claim of the petitioner, it was error to refuse the prayers of the petition. This was a case for the application of the maxim that equity follows the law, and there were no peculiar facts taking it out of the operation of this rule.</p> <p>2. The question as to whether the evidence submitted upon the hearing of the application for the appointment of a receiver did not require the finding that the corporation for which a receiver was sought was solvent, and whether, if it was solvent, the appointment of a receiver was authorized, is not presented by this record for decision here.</p>

<p>Equitable petition. Before Judge Terrell. Troup superior court. August 15, 1919.</p>

This case came before the Supreme Court upon questions certified by the Court of Appeals (inCase No. 10500), as follows: “1.

Equitable petition. Before Judge Jones. Hall superior court. June 14, 1919. Crow and Jones bought of Baccus et al. a bottling-works business on January 12, 1916, at an agreed price of $1735, consisting of an automobile taken at $435 and five notes for various amounts making up the remainder of the price.

<p>The petition in this ease when considered in its entirety shows that the conveyance of land executed by the petitioner, and which he seeks to have canceled as a cloud upon his title, was made with the intent to delay his creditors, and that he is therefore estopped from attacking it. The petition was properly dismissed on general demurrer.</p>

<p>1. On the trial of an injunction ease, where one of the issues was whether one of the predecessors in title of the defendant was the legitimate child of his father and mother (who were slaves), it was competent to permit a witness for the defendant to testify that at the time of his birth in 1859 the father- and mother were “ living there as man and wife.”</p> <p>2. In order to raise a presumption of the death of a person who moves from this State to a named point in another State, inquiry must be made at the last known domicile of the absentee at which' he resided in the other State; and it must be shown, by those who would be most likely to hear from him, that he was absent and unheard of in the last place of residence for seven years.</p>

<p>Appeal. Before Judge Irwin. Paulding superior court. June 5, 1919.</p>

<p>Injunction. Before Judge Sununerall. Bacon superior court. May 31, 1919.</p>

<p>Ejectment. Before Judge TVorrill. Decatur superior court. October 28, 1919.</p>

<p>Equitable petition. Before Judge Meldrim. Chatham superior court. December 1, 1919.</p>

Injunction. Before Judge Jones. Hall superior court. December 1, 1919. Brenau Association and Brenau College filed an equitable petition to enjoin the sale of certain real estate under an execution for taxes claimed to be due by the City of Gainesville for the year 1918, upon the ground that said property was not subject to taxation by the municipal authorities of Gainesville. The case was tried upon an agreed statement of facts.

<p>Question certified by Court of Appeals (Case No. 10353).</p>

Action upon fire-insurance policy. Before Judge Ellis. Fulton superior court. March 20, 1919.

<p>Complaint for land. Before Judge Liittlejohn. Macon superior court. June 38, 1919.</p>

The Court of Appeals certified the following questions in Cases Nos. 1632, 1637, requesting instruction from the Supreme .Court: “ The special presentment contained three counts. The first count charged murder.

<p>Petition for injunction. Before Judge Jones. Lumpkin superior court. October 19, 1919.</p> <p>The Gainesville Railway and Power Company. built and owned a dam across the Chestatee river, in Lumpkin county, a short distance from the Hall county line. In 1912 the Gainesville company sold its street-railway system, lighting and power plants, including the Chestatee dam, to the Georgia Railway and Power Company. The latter company owned a large dam near Gaines-ville in Hall County, known as the Dunlap dam. It constructed a transformer station near the Dunlap dam in Hall county, and transmitted its power from the Chestatee dam at high voltage to the transformer station at the Dunlap dam. The Georgia Railway and Power Company kept from one to three men at the Chestatee dam for the purpose of opening the water-gates and turning on the water, which in turn set the machinery in motion and generated electricity which was transmitted to the Dunlap station, from which it was distributed for use. It sold no current for any purpose in Lumpkin county, and kept no office at the Chestatee dam. The men working for it at the dam had no connection whatever with the public. In March, 1918. a citizen of Lumpkin county, the main defendant in error, filed suit in Lumpkin superior court against the company, and a copy of the petition and process was served upon J. M. Hulsey, who at that 'time was the only employee of tlie company at the Cliestatee dam. Mr. Hulsey never delivered' the copy suit and process to any officer or agent of the company, and the company knew nothing of the suit until after judgment was obtained in April, 1919. It then filed an equitable petition to enjoin the enforcement of the execution, and to set aside the judgment against it. In the petition it traversed the return of the sheriff, and denied that Mr. Hulsey was its agent. The injunction was denied, and the company excepted.</p>

<p>Temporary alimony. Before Judge Tarver. Gordon superior court. November 1, 1919.</p>

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

<p>Equitable petition., Before Judge Wright. Floyd superior court. July 29, 1919.</p>

<p>Equitable petition. Before Judge Morris. Forsyth superior court. August 26, 1919.</p>

<p>Petition for injunction and receiver. Before Judge Pendleton. Fulton superior court. September 9, 1919.</p> <p>' For some months before this litigation the plaintiff occupied a house as a tenant, paying the rent to a realty company as agent for “Emanuel James estate,” the last payment having been made on or about April 28, 1919, for one month ensuing. The plaintiff, according to her contention, was injured on April 30, 1919, by a fall caused by the steps of the house breaking under her. Acting on information as to- who were the real owners of the property, she brought suit, on June 6, 1919, against C. L. Littlejohn, Annie Landrum, and Mrs. Will James, for damages resulting from the injury, averring the three named to be joint owners of the house. To this suit Littlejohn pleaded, denying the plaintiff’s allegations, and averring that on April 30, 1919, he owned hut one fourth undivided interest in the property, but had no control of it, and so far had received no rent from it; that one Sterrs, administrator of the estate of Sarah James Cloud, was superintending the rental; and that defendant did not know the tenant and had no notice of the condition of the steps. According to a further contention of the plaintiff, she was notified by the realty company, after she commenced the damage suit, that the company was not further authorized to collect rent, and advised not to pay it, as she might have to pay it twice; and about the same time Littlejohn demanded of her rent for the premises, and on her refusal to pay it to him he caused a distress warrant for two months rent to be issued against her. She filed a counter-affidavit and gave bond; and later he caused another similar warrant to be issued. She then brought her petition to the superior court, praying for a restraining order enjoining Littlejohn from prosecuting the distraint proceedings until further order of court; and for a receiver to collect the rents of the property, etc. The plaintiff alleged in substance, among other things, that she would be involved in a multiplicity of suits; and that Littlejohn had no such title to the property as to authorize him to prosecute the distress warrants. From the answer of the defendant and from the evidence at the hearing it appeared that in 1917 Emanuel James died in possession of the property,- intestate and owing no debt, and leaving four heirs: Sarah James Cloud, Charles W. James, Will James, and Annie James Landrum; that Sarah James Cloud died in January, 1918, leaving a will appointing as executors Charles James and J. G. Sterrs; that Will James died intestate in 1918, leaving a widow as sole heir; that Charles W. James, on March 30, 1918, conveyed to Littlejohn a fourth interest in the property in question; that on May 6, 1919, Sterrs as administrator of Sarah James Cloud, under order of the court of ordinary, conveyed to Littlejohn a fourth interest in the same property; and that on June 6, 1919, Annie Landrum conveyed to Littlejohn a fourth interest therein; all of these deeds of conveyance having been duly recorded. A further contention of the plaintiff was that it did not appear that either of the nominated executors of the will of Sarah James Cloud ever qualified as such; and that a conveyance by one of them was void, no reason appearing for the other not joining therein.</p> <p>Injunction and receivership were denied.</p>

Certiorari. Before Judge Park. Putnam superior court. September 20, 1919. The father of two boys ten and twelve years of age sought by habeas corpus to recover their custody from the mother.

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

<p>Injunction. Before Judge Worrill. Miller superior court. September 27, 1919.</p>

<p>Claim. Before Judge Lovett. Bulloch superior court. October 28, 1919.</p>

<p>Ejectment. Before Judge Lovett. Bulloch superior court. October term, 1919.</p>

<p>Habeas corpus. Before Judge Pendleton. Fulton superior court. November 22, 1919.</p>

<p>Equitable petition. Before Judge Sheppard. McIntosh superior court. December 3, 1919.</p>

Complaint for land. Before Judge Tarver. Cobb superior court. June 5, 1919. Three heirs at law of C. J. Hill sued to recover three eighths undivided interest in a forty-acre lot of land. A nonsuit was granted, and the plaintiffs excepted. It appeared, that on January 4, 1887, J. P. Hill, half-brother of the plaintiffs, executed a deed (which was recorded) conveying the whole lot to J. E. Banister, who died in possession of the land on January 22, 1916.

<p>Question certified by Court of Appeals (Case No. 10-171).</p>

<p>Petition for injunction. Before Judge Morris. Cobb superior court. September 13, 1919.</p> <p>City tax executions for several years, aggregating over $1,000, having been levied on the plaintiff’s property, he brought his petition praying for injunction against enforcement of the levy, and for decree requiring that certain sums due to him by the city be deducted from the amount of the executions, leaving a balance of $187 in the city’s favor, which he, being solvent, offered to pay. The sums due to him were for the city’s half (by agreement of the mayor and council with the plaintiff) of the expense of labor and material required to open a street for the city through the plaintiff’s land, for wood furnished to the city on the mayor’s order, 'and for a small city voucher transferred to the plaintiff. He alleged that the city was heavily indebted, and was insolvent. By demurrer and answer the defendants set up, in effect, that the first item of indebtedness to the plaintiff was barred by limitation of four years; and that none of the items could be set off against the demand for taxes. Other contentions are not here material.</p>

Partition, etc. Before Judge Hodges. Elbert superior court. September 20, 1919. Walter Dye filed for himself and others a petition for partition under the provisions of sections 5358 et ■ seq. of the Civil Code, which relate to proceedings to partition, setting forth in said petition a description of the land to be partitioned and proper allegations as to the interest and title of the parties named in the petition as tenants in common.

<p>Temporary alimony. Before Judge Pendleton. Fulton superior court. September 16, 1919.</p>

<p>Equitable petition. Before Judge Terrell. Carroll superior court. October 4, 1919.</p>

<p>1. The plaintiffs claimed title to designated land as remaindermen under item 14 of the will of Henry P. Jones. This provision of the same will was construed in the ease of Sparks v. Anderson, ante, 58 (102 S. E. 423), where it was held that the said will created a life-estate in Josephine V. Brazeal, with remainder to such child or children as she might have living at the time of her death; and if she should leave no child or children living at the time of her death, then in trust to be equally distributed among the testator’s children per stirpes. “ The trustees appointed in the will were not trustees for the life-tenant only, but for the life-tenant and the remaindermen, and the trust was executory, at least until the death of the life-tenant, when the possibility of her having children would become extinct, and it could be ascertained to whom the estate would ultimately go.”</p> <p>2. The original trustees appointed for the property devised by the testator applied for permission to resign their trust, and on petition of the life-tenant and all of the contingent remaindermen W. B. Sparks was appointed trustee of the property, with leave to sell. The order appointing Sparks as trustee and granting leave to sell was passed in vacation. Two of the petitioners were minors, who appeared by their brother, W. B. Sparks, as next friend. The court appointed a guardian ad litem for them, wlio approved tlie application made to the judge of the superior court for an order of sale of the trust estate. It does not appear from the record that the minors were or were not personally served with notice of the proceedings. The order of court does recite: “it appearing from the record and evidence that all parties at interest have been served and are before the chancellor [naming each one of the interested parties].” Held, that where the contrary does not appear from the record it will be presumed that the judge of the superior court, in removing such trustee and in appointing a successor, acted with all necessary jurisdictional requisites. Winn v. Lunsford, 130 Ga. 436, 439 (61 S. E. 9) ; Peavy v. Dure, 131 Ga. 104 (3), 111 (62 S. E. 47) ; Woodbery v. Atlas Realty Go., 148 Ga. 712 (2) (98 S. E. 472) ; Oopelan v. Kimbrough, 149 Ga. 683 (102 S. E. 162).</p> <p>3. There being a valid trust as to the entire fee, the removal of the trustee created a vacancy which the judge of the superior court was authorized to fill by the appointment of a successor at chambers. Civil Code (1910), § 3744; Heath v. Miller, 117 Ga. 854, 860 (44 S. E. 13); Woodbery v. Atlas Realty Co., supra.</p> <p>4. A court of chancery, upon a regular application, may authorize a trustee to sell or convey the corpus of the trust estate. Such application may be made to the judge in vacation, on full notice to all parties in interest; and the order for such sale may be granted at chambers. A judge of the superior court at chambers has no authority, upon an original petition then presented, to order a sale of the legal estate of minors to real estate.</p> <p>5. Under the undisputed evidence prescriptive title to the land in controversy had ripened against the trustee, who had legal title to the land, prior to the filing of this suit. Therefore the court properly directed a verdict in favor of the defendant and against four of the plaintiffs, and erred in directing a verdict in favor of the remaining plaintiff for a one-fifth undivided interest in the land and for mesne profits.</p>

<p>Question certified by Court of Appeals (Case No. 10456).</p>

<p>The interlocutory injunction granted in -this case, in so far as it required the defendant to remove from the dwelling of the petitioner, with her household goods, is in effect a mandatory injunction, which, under the provisions of the Civil Code, § 5499, can not be granted in this State.</p>

Equitable petition. Before Judge Littlejohn. Sumter superior court. August 5, 1919.

<p>1. A tax-receiver may, in a proper ease, be compelled by mandamus to give the notice as provided under the Civil Code (1910), § 1057, and to assess the property of a delinquent taxpayer as provided under the Civil Code (1910), § 1059.</p> <p>2. In such a case the delinquent taxpayer is not, as a general rule, either a necessary or a proper party defendant.</p> <p>3. Under section 5443 of the Civil Code (1910), mandamus will not be granted when it is manifest that the writ would for any eause be nugatory or fruitless; nor will it be granted on a mere suspicion or fear, before a refusal to act or a wrongful act done.</p> <p>(a) It was not in this ease erroneous to dismiss the proceeding for mandamus, and to tax the cost of the proceeding against the relators.</p>

<p>1. The proceedings substantially complied with the law applicable to the case of a taxpayer who had failed to return his property for taxation, who had been notified by the tax-receiver to make a return, who had failed to comply with the notice, and whose property had been assessed by the tax-receiver, and who had accordingly demanded an arbitration. They were not under the tax-equalization law of 1913, which had no application. The oaths to which the arbitrators subscribed were in substance sufficient to comply with § 1100 of the Civil Code.</p> <p>2. The arbitrators selected were not ineligible by any reason assigned.</p> <p>3. The court did not err in refusing a pendente-lite injunction.</p>

Injunction. Before Judge Eve. Cook superior court. September 6, 1919. On January 23, 1917, D. W. Whitehurst executed and delivered to the Adel Manufacturing Company a lease by which he conveyed to the company the “timber suitable for sawmill purposes” on a described tract of land. After the lease was executed and recorded Whitehurst sold the land to H. C. McDermid, who took possession.

<p>Complaint. Before Judge W. H. Hammond. City court of Tliomasville. January 8, 1919..</p> <p>Barnett National Bank brought suit in the city court of Tliomasville, against Patterson & Son, a partnership composed of J. G. Patterson and T. A. Patterson, upon two promissory notes, praying judgment for the amount of the principal and interest, and for attorney’s fees. The notes were made payable to the Blount Naval Stores Company, and were signed, Patterson & Son per T. A. Patterson, and indorsed by the payee; and the plaintiff alleges that it is the owner and holder of the notes. The defendants filed their plea and answer, in which they denied that-they were liable upon the notes, and averred that the plaintiff was not a bona fide holder of the same. It is alleged in the plea that the firm of Patterson & Son was organized for the sole purpose of carrying on the business of manufacturing naval stores, and that the giving of the notes, if the same were in fact given by one of the partners, was without the scope of the partnership business, and the notes were without consideration. They furtheL’ plead that the notes were procured by fraud; that the Naval Stores Company through its president, B. W. Blount, falsely and fraudulently represented to T. A. Patterson, on the day the notes were given, that the payee held certain notes of Patterson & Son which were past due and unpaid, representing that the past-due- notes were given for stock in the Blount Naval Stores Company which had been subscribed for by the defendant, J. G. Patterson; that these representations were untrue, but that T. A. Patterson, relying upon the truth of said statements, executed the notes sued on as renewals, though as a matter of fact the Naval Stores Company did not hold nor were they in possession of any notes of Patterson & Son; but T. A. Patterson was ignorant of the falsity of the statement. J. G. Patterson avers that lie bad no knowledge of the giving of the renewal notes sued bn. They plead further that when the renewal notes were given the plaintiff bank had “threatened and were preparing to prosecute B. W. Blount, president of the Naval Stores Company, for certain alleged criminal acts on account of the alleged conversion by the said Blount of certain funds belonging to the plaintiff and delivered by it to the said Blount in trust, which had prior thereto been deposited with the plaintiff by the Blount Naval Stores Company. Defendants aver, that, in order to avert the criminal prosecution so threatened, the said Blount induced the said T. A. Patterson to give the said renewal notes upon the representation hereinbefore set forth, and after obtaining the same he did by virtue of 'an agreement with plaintiff pledge and deposit said renewal notes of Patterson & Son with other certain collateral notes under an agreement with the plaintiff that upon so doing the said criminal prosecution would be withdrawn. The defendants therefore plead that the plaintiff is not a bona fide holder of the renewal notes, and that the indorsement of the Naval Stores Company, the payee, was void and did not pass the title to the notes to plaintiff and it had no right of action thereon against either of the defendants.” To this plea and answer the plaintiff demurred on the ground that it was insufficient in law as a defense to the suit on the notes. Certain of the paragraphs were demurred to specifically on the ground that they set forth no defense. The judge struck all the plea except in so far as it contested the right of the plaintiff to collect attorney’s fees. Proof of the notice required by the statute for the collection of attorney’s fees was made, and there was evidence that 10 per cent, of the principal and interest would be reasonable attorney’s fees, the notes containing a stipulation that if they were placed in the hands of an attorney for collection after maturity the makers would pay reasonable attorney’s fees. The court rendered judgment in favor of the plaintiff for the principal, interest, and attorney’s fees. The defendants excepted on the grounds, that, inasmuch as the notes sued on were not an unconditional contract in writing, the court could not render judgment without the intervention of 'a jury; and that the provision for the trial of cases in that court without the intervention of a jury, where no jury was demanded, in accordance with the provision of section 7 of the act approved August 22, 1907, entitled an act to amend the act of 1905 establishing the city court of Thomasville (Acts 1907, p. 238), was unconstitutional and void, being violative of the provisions of paragraph 7 of section 4 of article 6 of the constitution of Georgia.</p>

<p>Equitable petition. Before Judge Searcy. Fayette superior court. September 17, 1919.</p> <p>Seaborn Sams brought his petition against W. J. Sams (a resident of Fayette county), and against A. P. Sams (a resident of Kanclolph county) as executor of C. C. Sams, who died on March 23, 1910, owing no debts, and leaving a will that was probated in solemn form. The item of this will that is here material directed that the realty be equally divided between the testator’s wife and his children and representatives of children, except that the share of his son Seaborn Sams was to remain in the hands of the executor, to be used for the benefit of Seaborn Sams, as long as the wife of Seaborn Sams should live, and at her death to be “ paid to said Seab. Sams and his heirs at law.” The wife of Seaborn Sams died on January 10, 1918; and he claims that he is now entitled to his share (one fifth) in the estate of C. C. Sams, specifically 59/975 of 195 acres described, and to the income or rents and profits of that share since the death of C. C. Sams. The petition contains the following allegations, in brief: William J. Sams at the time of his death owned and possessed a tract of 295 acres of land described, which was sold and conveyed by his administrator to Mrs. S. M. Sams'. She and her four children 'agreed to a division of this land into five shares of 59 acres each. One of these children, W. E. Sams, after obtaining his 59-aere share, bought of his mother 41 acres more, thus acquiring 100 acres, -which parcel was set apart to him off the south end of the 295-acre tract. The remaining 195-acre tract, according to agreement and understanding, was owned by Mrs. S. M. Sams (18 acres) and the other three children (59’acres each). One of these three, Ida B. Ballard, conveyed her share of 59 acres to C. C. Sams, who owned that parcel at the time of his death. There never was any actual division by metes and bounds, except the cutting off of the 100 acres to W. E. Sams. C. C. Sams left a wife, three children, and one heir or representative of a deceased child. A. P. Sams qualified as executor of the will of C. C. Sams (his father), but never attempted to take possession of the testator’s interest in the land, and never dealt with it as executor in any way. He permitted W. J. Sams to .take and keep possession, and on March 25, 1911, he purchased the interest of Eliza Sams therein, and on April 1, 1911, he sold and conveyed that interest, as well as his own interest, to W. J. Sams and put him in possession of Hie same. W. J. Sams purchased also all the interests of all the other parties in the 195 acres, went into possession of the whole of the land on April 1, 1911, and has since received the rents and profits thereof. While admitting plaintiff’s right to share therein, and promising year by year to divide the profits, he has, notwithstanding frequent demands, failed and refused to pay anything, or to agree with plaintiff upon a division of the land. The conveyance by A. P.- Sams, just mentioned, and his refusal to administer the land as the property of the estate of C. C. Sams, amount to an assent by him to the vesting of the legacy as to plaintiff’s interest; but if it be held that he has not so assented, then he is a necessary party defendant, and the plaintiff is entitled to have his specific assent. It is further contended that such assent resulted from a decree in a previous suit involving the will of C. C. Sams, to which action A. P. Sams and W. J. Sams were parties. The present plaintiff was not a party to that action. The prayers are, in substance, that the executor’s assent be compelled; for decree of title to plaintiff’s interest; for equitable partition and sale of the land, as it cannot be divided by metes and bounds; and for recovery from W. J. Sams of plaintiff’s interest in the land and in the rents.</p>

<p>Petition for injunction. Before Judge Terrell. Carroll superior court. September 15, 1919.</p>

<p>Petition for injunction. Before Judge Tarver. Gordon superior court. October 13, 1919.</p> <p>The plaintiffs contended (in brief) that by contract of purchase they acquired of the Dayton Coal, Iron and Eailway Company (a bankrupt corporation of Tennessee) the title to the timber on certain land in Gerdon County, to be cut within ten years, paying $6500 as the agreed price, with the agreement that this amount should be held by the company’s attorney in escrow until a release could be procured as to a lien retained by the trustee in- bankruptcy; that later, on being informed that the trustee would not release the lien without payment of $7000 for the timber, plaintiffs deposited the additional $500; that the president of the bankrupt company, in disregard of the plaintiffs’ rights and in fraud and collusion with the defendant company, executed a conveyance of the timber to that company, which took with notice of the facts; and that it was cutting the timber. Injunction against this cutting was prayed. The defendant denied the plaintiffs’ allegations, and set up that it had regularly and legally acquired the title without fraud or wrong, and that the plaintiffs never acquired title legal or equitable, but if they had any remedy it was by action for breach of contract by the Dayton Company or its president, if such contract existed. At the interlocutory hearing an injunction was denied, with the provision that the defendant file a bond of $10,000, conditioned to pay all damages the plaintiffs might sustain from the cutting of the timber. The plaintiffs excepted to the denial of an injunction; and by cross-bill the defendant excepted to the requirement of bond.</p>

<p>Motion to set aside judgment. Before Judge Irwin. Polk superior court. Novenmer 1, 1919.</p>

<p>Claim. Before Judge Gower. Wilcox superior court. September 26, 1919.</p>

Petition for specific performance. Before Judge Park. Jasper superior court. August 5, 1919. Mrs. Louise Ezell Mobley brought her petition for specific performance against Mrs. Leila Ezell, the widow of JE. H. Ezell, who died intestate August 1, 1914. Mrs. Ezell paid up the debts of the decedent and took his entire estate without administration, and she is the sole defendant in the suit for specific performance.

<p>1. An equitable suit for tlie cancellation of a deed can not be maintained without making the grantor in such deed a party defendant. But a creditor may in such a suit, after striking the prayer for cancellation, attack a deed as fraudulent upon the ground that it was executed in pursuance of a scheme between the husband of the grantee, the grantee herself, and the parents of the grantee, who were the grantors in such deed, so as to subject the interest of the debtor (the husband) in the land to the creditor’s claim, where the creditor’s claim is one for money borrowed by the husband with which to make improvements upon the lot of land.</p> <p>2. Under the evidence in the case issues of fact arose which' should have been submitted to the jury under proper instructions from the court; and the court erred in directing a verdict.</p>

<p>There being some evidence to support the verdict in this ease, the judgment refusing the motion for a new trial based upon the usual general grounds will not bo disturbed here.</p>

<p>1. On the trial of one indicted for murder, where the court after a preliminary hearing admits in evidence dying declarations offered by the State, the failure to instruct the jury as to their consideration of that character of evidence is not cause for a new trial, where the State does not rely for conviction solely on dying declarations, and where there is no appropriate and timely written request for instructions as to them.</p> <p>2. It was not error in this case for the court, after the instructions given on the subject, to fail to further charge as follows: “In order to convict one as the principal in the second degree, it is necessary to prove the guilt of the principal in the first degree.”</p> <p>8. The instruction as to the credit to be given a successfully impeached witness, upon which error is assigned, is not, when considered in view of the whole charge, and the connection in which it was given, cause for a new trial.</p> <p>4, 5. Failure to instruct the jury on the subject of impeachment of a witness, as set forth in grounds four and five of the motion, is not cause for a new trial, there being no request for such instructions.</p> <p>6. The evidence authorized the verdict, and the court did not err in refusing a new trial.</p>

<p>Writs of error; from city court of Reidsville.</p>

'Claim. Before Judge Terrell. Carroll superior court. July 9, 1919. To the summary of facts appearing in the foregoing syllabus the following may be added, in connection with headnotes 2 and 3: The judgment on which the plaintiff’s execution was based was dated December 12, 1913. He testified that the credit was extended to Jones, the defendant in execution, in August, 1911, for an interest in a business that the plaintiff sold to him.

Injunction. Before Judge Pendleton. Fulton superior court. October 3/1919. The pleadings and the evidence show substantially as follows: Allen K. Chamlee, on August 26, 1916, sold designated land to A. E. Bobertson, executing a bond for title to Bobertson, and receiving in return a note for $6736, the balance of the purchase-money, providing for interest and attorney’s fees.

<p>Complaint for land, etc. Before Judge Hammond. Burke superior court. August 23, 1919.</p>

Tlie Court of Appeals certified for instruction (in Case No. 10414) the following questions, the answers to which will be found in the headnotes: “ 1. When a surety has been sued separately from his principal, is it then too late for the surety to give the notice provided for in section 3546 of the Civil Code (1910), to proceed against the principal debtor? “2. Do the provisions of section 3546 of the Civil Code affect the contract or go only to the remedy ? “ 3.

<p>1. The judgment of the court below in effect ruled adversely to the plaintiff in error upon the question as to whether or not there was a contract by which the applicant, the father of the child in question, surrendered and lost his parental right to have possession, custody, and control of the minor child.</p> <p>2. Under the evidence in the ease the court did not err in awarding the child to the custody of the father.</p>

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. February 2, 1920.</p>

Complaint — equitable amendment. Before Judge Jones. Union superior court. June 14, 1919. This ease (a suit upon a note) was converted into an equitable action by an amendment to the petition, praying for reformation of the instrument sued on.

<p>Indictment for murder. Before Judge Littlejohn. Sumter superior court. February 14, 1920.</p>

<p>Appeal from probate of will. Before Judge Walker. Warren superior court. July 16, 1919.</p>

<p>Equitable petition. Before Judge Kent. Laurens superior court. July 31, 1919.</p>

<p>Questions certified by Court of Appeals (Case No. 10108).</p>

<p>Where suit was brought by a man to recover damages for -total loss of earning capacity and for pain and suffering from an injury to him from an alleged wrongful and negligent act of the defendant, which suit, after his death, was prosecuted to judgment by his wife as administratrix of his estate, and the judgment was paid by the defendant, this would not constitute a bar to a subsequent suit by the wife in her individual capacity, to recover damages for her husband’s homicide due to the same alleged negligent and wrongful act of the defendant.</p>

<p>Petition for injunction. Before Judge Dickerson. Berrien superior court. October 11, 1919.</p>

<p>Ejectment. Before Judge Kent. Laurens superior court. October 31, 1919.'</p>

<p>1. The general rule is that equity will not enjoin the prosecution of criminal offenses; but there are eases where equity will enjoin such prosecutions. This case falls within the latter class.</p> <p>2. It cannot bo said as a matter of law, under the meager evidence in the record, that an ordinance fixing an annual occupation tax of $5 on a telegraph company doing business within a town, on intrastate business, where the gross annual income is shown to be $70.68, and the expenses of the local office are not definitely given, is so unreasonable, excessive, and confiscatory as to be void.</p> <p>(a) Where an attack is made on an ordinance fixing an occupation tax, because of extrinsic facts, the burden is on the party attacking to prove the allegations of the petition; and on failure to carry such burden the ordinance will not be declared invalid. The plaintiff failed to carry the burden in the instant case.</p>

Equitable petition. Before Judge Meldrim. Chatham superior court. December 2, 1919. Susan Kinchlo et al. brought an equitable petition against I. D. LaRoche, and alleged substantially as follows: The petitioners are residuary legatees -under the will of W. H. Stiles, deceased. At the death of Stiles he left a certain described tract of land in Chat-ham County, Georgia, known as Stiles Park, containing twelve acres, more or less.

Equitable petition. Before Judge Pendleton. Eulton superior court. November 10, 1919. H. T. O’Shiolds brought suit against James E. Belcher and W. E. McGrath, alleging substantially as follows: Plain (.iff is the owner of all the capital stock of the Mell Plumbing Company, and he agreed to sell the defendant McGrath 29 shares of this stock for the sum of $1,450. McGrath worked for the Mell Plumbing Company until August 18, 1918.

<p>Petition for injunction. Before Judge Park. Greene superior court. December 10, 193 9.</p>

<p>Indictment for murder. Before Judge Jones. Union superior court. December 10, 1919.</p>

<p>Injunction. Before Judge Morris. Cobb superior court. January 2, 1920.</p>

<p>Partition. Before Judge Eve. Worth superior court. December 26, 1919.</p>

<p>The provision of the act of 1897 (Acts 1897, pp. 82-85), generally referred to as the validating act, and contained in section 445 et seq. of the Civil Code of 1910, which prescribes the time within which the judge of the superior court shall fix the hearing on the petition to validate an issue of municipal bonds, and the time within which he shall hear and determine the same, is directory only.</p>

<p>Habeas corpus. Before Judge Hammond.. McDuffie superior court. January 9, 1920.</p>

Injunction. Before Judge Pendleton. Eulton superior court. February 16, 1920.

<p>Equitable petition. Before Judge Park. Greene superior court. June 28, 1919.</p>

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

<p>1. A county in this State is not liable for interest upon county warrants, in the absence of some valid legal contract, or provision of law, authorizing the payment of interest.</p> <p>2. The term “new debt” as embraced in par. 1, see. 7, art. 7 of.the constitution of this State (Civil Code, § 6563) embraces interest as well as principal. Under the allegations of the petition the interest sued for created a debt against the county which is inhibited by the above provision of the constitution, and is therefore unenforceable by suit brought against the county to recover such interest.</p>

<p>Indictment for rape. Before Judge Tarver. Bartow superior court. October 11, 1919</p>

<p>Petition for mandamus. Before Judge Pendleton. Fulton superior court. June 9, 1920.</p>

<p>1. In a petition for partition, under section 5358 of the Civil Code of 1910, the applicant alleged that he was an heir at law of his father, who died intestate; seized of the land in question; and the widow of the intestate and seven named children (the mother and brothers and sisters of the applicant) were named as tenants in common. The mother filed a defense to the proceeding under section 5363 of the Civil Code, denying the demandant’s title to any part of the land, and claiming the land under deeds alleged to have been executed and delivered by the intestate in his life time to her. Held, that upon the trial of the issue, evidence tending to show the non-delivery of the deeds was admissible without special pleadings for that purpose.</p> <p>2. Whether a deed has in fact been delivered is, unless the proof is complete and undisputed, a question for the jury. The presumption of delivery arising from the due attestation and registration of a deed which contains no reservation or restriction may be rebutted by evidence tending to show that the maker of the deed retained the actual possession of it, and continued to exercise acts of ownership over the,land therein described, and-that the grantee named in the instrument, subsequently to the death of the maker, acted as if the title to the land had not passed to her.</p> <p>3. The doctrine that the grantor in a deed made for the purpose of hindering, delaying, or defrauding his creditors, or one claiming in his right, can not be heard to question the validity of such deed, does not apply where the deed was not in fact delivered.</p> <p>4. The defendant in a partition proceeding can not set up matters of defense not germane to the case made by the plaintiff’s petition, and can not recover a personal judgment against the plaintiff upon a separate and independent cause of action.</p>

<p>Equitable petition. Before Judge Irwin. Haralson superior court. July 24, 1919.</p>

Equitable petition. Before Judge Tarver. Murray • superior court. October 11, 1919.

<p>Ejectment. Before Judge Summerall. Clinch superior court. September 27, 1919.</p>

<p>Complaint. Before Judge Irwin. Douglas superior court. October 7, 1919.</p>

<p>Equitable petition. Before Judge Graham. Camden superior court. November 5, 1919.</p>

<p>Under the pleadings and the evidence in this case the court erred in granting a nonsuit.</p>

Equitable petition. Before Judge Tarver. Whitfield superior court. December 13, 1920.

<p>Habeas corpus. Before Judge Harrell. Decatur superior court. January 17, 1920.</p>

<p>Ejectment. Before Judge Graham. Montgomery superior court. June 21, 1919.</p>

<p>Temporary alimony. Before Judge Hodges. Franklin superior court. February 16, 1920.</p>

Injunction. Before Judge Hammond. McDuffie superior court. May 14, 1920. A. D. Adkins filed his petition against the Democratic Executive Committee of ’McDuffie County, and alleged substantially as follows: On April 20, 1920, there was held in McDuffie County a primary election in accordance with the statutes as set out in § 127 et seq. of the Political Code of Georgia, for the nomination of county officers for the County of McDuffie, including sheriff.

<p>Habeas corpus. Before Judge Humphries. Fulton superior court. May 28, 1919.</p>

<p>Description and counsel as in Case No. 1537, just before.</p>

Judgments reversed. All the Justices eonewr. Indictment for murder. Before Judge Walker. Taliaferro superior court. January 27, 1920. In an indictment against Dink Butler and Fate Fews for the murder of W. B. Bainey, both defendants were charged as actual perpetrators of the crime by shooting Bainey with a- rifle. The defendants were tried separately. Butler was convicted without recommendation, and sentenced to be hanged.

The Court of Appeals certified to the Supreme Court the following questions (in Case No. 10459) : “A written contract for the sale of parts… Held: ‘Before suit against the purchaser for the entire purchase-price of goods shipped by common carrier as in this case can be maintained by the seller, title must be relinquished by the seller and must pass to the purchaser. The seller can not retain the goods and also recover the full price.’ Tuggle v. Green & Sons, 21 Ga. App. 723.

<p>1. The court did not err in overruling the general demurrer to the petition, which sought to have declared void the order of the board of commissioners of roads and revenues of Houston County, approving the action of the grand jury of that county, approving an application for a change in the county line between Houston and Macon Counties, on the ground that such order was void because no notice.of the application had been posted in one of the militia districts of Houston County adjacent to the line sought to be changed. Eish, C. J., and Atkinson, J., dissent.</p> <p>2. There was no error in the rulings on special demurrers.</p> <p>3. A nonsuit was properly granted. Hill and Gilbert, JJ., dissent.</p>

<p>Complaint for land. Before Judge Hardeman. Washington superior court. June 11, 1919.</p>

<p>1. Whore by its policy an insurer agreed to indemnify the insured for all loss by burglary of property from within the “ premises as hereinafter defined,” and stipulated that the term “ premises ” was limited (if the insured occupied only a part of the building)' to the “interior of the store loft, office room or rooms actually occupied by the assured on the floor or floors designated in the schedule,” and where in reference to the “ promises ” the schedule, after setting forth the name and location of the building, stated that “the assured occupies rooms 206 and 207,” the policy did not cover property stored, not in either of the rooms designated, but in a basement-room in the same building, which, though occupied by the insured, was not on the same floor with rooms 206 and 207.</p> <p>2. Under the alleged facts stated in the second certified question, considered in connection with the stipulations of the policy, the insurer was not estopped from denying that the policy covered the property in the basement storage-room of the insured. George, J., dissents.</p>

<p>Ejectment. Before Judge Mathews. Bibb superior court. July 14, 1919.</p>

<p>Equitable petition. Before Judge Howard. Marion superior court. September 6, 1919.</p>

<p>Question certified by Court of Appeals (Case No. 10804).</p>

Equitable petition.. Before Judge Cobb. Jackson superior court. October 25, 1919. J. D. Short filed an equitable petition against S. L. Tolbert, having for its purpose the specific performance of a contract for the sale of 73 acres of land in Jackson County by the defendant, Tolbert, known as the “Hartly place” in said county, adjoining lands of Mrs. Lipscomb, W. L. Eagan, 'and others, in Millers District, at and for the sum of $4,000.

<p>Registration of land. Before Judge Thomas. Echols superior court. March 11, 1920.</p>

<p>Equitable petition. Before Judge Tarver. Cobb superior court. July 24, 1919.</p> <p>Dobbins et al., by an equitable petition, prayed that the City of Marietta, its mayor and Council, the Frank Scarboro Co., the Merrill Road Improvement Co., and Merchants & Farmers Bank be enjoined from continuing the work of paving Atlanta Street until adequate sewerage facilities were installed therein adjacent to their abutting property; that the bank and Frank Scarboro Co. be enjoined from collecting or changing the status of a promissory note for $20,000, made by the city to Frank Scarboro Co.; that they be required to bring the same into court, and that it be delivored up Hud canceled as void; and that the city be enjoined from renewing the note, paying the same, or levying any tax for that purpose. It was alleged, that two of the complainants had been induced, by fraudulent representations of the mayor that sewerage facilities would be installed before the laying of the pavement, to sign a petition requesting the paving of the street; that because of this fraud their" signatures to the petition were void; that without them the petition lacked the requisite number of signers; that the note above mentioned, made by the city to Frank Scarboro Co. for the purpose of financing the paving, was void, because (a) it was intended to cover the entire cost of the paving, whereas the city was liable for but a small proportion, and the mayor and council were without authority under the charter of the city and laws of the State to create a debt binding upon the city for this purpose; (6) that it was in violation of art. 7, sec. 7, par. 1, of the constitution of Georgia, the total taxable property within the city for 1917 amounting to $3,500,000, permitting a maximum indebtedness without vote of the people of $7,000, and the outstanding indebtedness, incurred by the mayor and council without vote of the people, amounting at the timo of the execution of this note (November, 1917) to some $35,000 over and above all resources; (c) that the total income of the city for 1917 which could be used.for general purposes amounted to approximately $14,000, its floating indebtedness far exceeded this amount, and it had no funds or resources with which to discharge the note. The petition was demurred to generally on the ground that it did not set forth a cause of action or authorize the relief prayed; that it did not allege the making of any objection to the passage of the ordinance authorizing the improvement, by the complainants, or that they had within fifteen days thereafter begun legal proceedings for the purpose of preventing assessments being made against them on account of such improvement, and it would be conclusively presumed that they had accepted the terms of the ordinance and agreed to the assessment; that the plaintiffs were not entitled to any of the relief sought, none of them had any sireh interest in the subject-matter as would entitle them to file the petition, and they were estopped; that the petition is multifarious, in that it improperly joins distinct matters, injunction being sought to prevent the laying of the pavement and the payment of tbe note. Special demurrers were interposed to the petition. An amendment to the petition alleged that the paving had been completed without provision for sewerage; that the city had-assessed against the plaintiffs their pro rata of the cost of the paving; and was proposing to issue executions against them thereon, and prayed that the city be enjoined from collecting from plaintiffs any portion of the cost of the paving. When the case came on for trial an order was passed sustaining the demurrer, “except in so far as the petition prays the writ of injunction against the payment and collection of the Scarboro note.” Evidence was adduced upon the only remaining issue, the validity of the note. At the conclusion of the plaintiffs’ evidence the defendants moved to dismiss the petition, on the ground that it was not sustained by the evidence. This motion was overruled. The court directed a verdict permanently enjoining the city from paying and Frank Scarboro Co. from collecting the $20,000 note, and denjdng to the plaintiffs the relief sought against the assessments. The plaintiffs assign error on the judgment sustaining the demurrer, and upon the decree denying to them relief as to the assessments. The defendants assign error upon the judgment overruling a portion of the demurrer, upon the overruling of their motion to dismiss the petition, upon the rejection of evidence offered for the purpose of showing that the plaintiffs and the city had benefited by the paving, and upon the direction of the verdict.</p>

<p>Equitable petition. Before Judge Gower. Ben Hill superior court. September 13, 1919.</p>

Certiorari; from Court of Appeals. 24 Ga. App. 189. The Chero-Cola Bottling Company brought suit in the city court of Carrollton against the Southern Express Company, for damages. The process was returnable to the March term, 1918, and was duly served upon the defendant.

Appeal. Before Judge Hodges. Elbert superior court. October 11, 1919. Mrs. Eunice Crawford offered for probate as the last will and testament of F. M. Crawford, deceased, certain instruments in writing ; and Mrs. Ollie Conwell, Mrs. H. S. Crawford, F. P. Crawford, and others filed their caveat to the application for probate, one ground of the caveat being that the instruments propounded for probate were deeds and were not testamentary in character.

<p>Petition for injunction. Before Judge Summerall. Appling superior court. July 5, 1919.</p> <p>Loemma Williams, the wife of John C. Williams, and Joseph Milikin as her tenant brought a petition to restrain the execution of a writ of possession, issued upon a recovery of 100 acres of land in the suit of L. N. Speer against John C. Williams, Ben Williams, and A. A. McLean, trustee in bankruptcy of John C. Williams.</p> <p>Mrs.'Williams claimed that she owned the land under a deed from her husband to herself,, dated March 13, 1913, and bearing an entry of record dated February 21, 1919; and that since the date of that deed she had'Jield possession of the land in her own right. This claim was disputed; and the evidence for the defendants tended to show that John C. Williams had lived upon the land with his wife and family, ’and had cultivated it, up to the time when he went into voluntary bankruptcy on February 16, 1916. It appeared that on February 3, 1914, he executed to Speer Brothers a mortgage on the land, containing a power of sale. This mortgage was assigned to Baxley Banking Company, which, after obtaining a judgment for the debt secured by it, exereised the power of sale and thereby conveyed the land to L, N. Speer on February 15, 1916. Speer brought his action against McLean (the trustee in bankruptcy), Ben Williams (the agent and custodian of the trustee), and John C. Williams, to prevent a sale of the land by the trustee, and to obtain a writ of possession; and in that suit Speer prevailed (see McLean v. Speer, 148 Ga. 684). The plaintiff in the present ease contended, in brief, that her husband parted with his title to the land by the conveyance to her in 1913; that thereafter the possession of the land was hers; and that she was not a party to any of the later matters and proceedings, had no notice of them, and was not bound by them. The testimony was in conflict on the material issues of fact; and the pleadings and evidence as a whole were voluminous. The foregoing outline statement is all that is necessary for the present report.</p>

<p>Equitable petition. Before Judge Highsmith. Camden superior court. October 4, 1919.</p>

<p>Questions certified by Court of Appeals (Case No. 9977).</p>

<p>1. A will declared: “I desire that my son Flournoy have for his own use the vacant lot on Broad Street in the City of Augusta — now used as a marble-yard, to him and his heirs forever. All the silver, which consists of one dozen large tablespoons, one dozen dessert-spoons, one dozen teaspoons, one large ladle, one large gravy-spoon. If he should die without male issue, it must go to my eldest surviving son.” Held, that the son took an estate in fee simple to the described lot.</p> <p>2. The will of the son, Flournoy Carter, gave all of his property to his wife during her life, and at her death to their children then living, or the descendants of children if their parents should not then be in life. Further language used by the testator in his will was, “ I authorize her [his widow] . . to sell and convey, privately or otherwise in her discretion and without an order from any court, any or all of my property, to pay debts or -make a judicious investment — all property thus taken to be held by her subject to the limitations and provisions set forth in the second preceding item of this will. I also authorize her to exercise her discretion in investing any surplus money that may come to her hands, retaining annually so much thereof as may be required for the reasonable support of herself and my children during their minority.” Held, that the power to sell and reinvest given to the widow was personal to her, and did not pertain only to the office of the executrix of the will; and such power was not terminated by the widow filing an appraisement of the estate in the office of the ordinary and turning over to herself as life-tenant all the property in her hands as executrix, or by her subsequent marriage prior to the act of 1883 (Civil Code (1910), § 3944).</p> <p>3. Applying the foregoing rulings to the allegations of the petition brought by the widow of Flournoy Carter for specific performance of a contract of sale made by her for reinvestment under the power given her in his will, and to the defendants, the demurrer to the petition was properly overruled.</p>

<p>Injunction. Before Judge Mathews. Houston superior court. September 6, 1919.</p>

<p>1. A corporation chartered under the laws of a sister State, suing in the courts .of this State, is not required to set out in its petition the terms of its charter showing its capacity to maintain the action.</p> <p>2. Under the allegations of the petition the contract which the plaintiff seeks to have specifically performed is certain and definite in all the particulars essential to its enforcement.</p> <p>3. It was erroneous to overrule the special grounds of the demurrer calling irpon the plaintiff to name its agent through whom the contract was alleged to have been made and by whom the final installment of purchase-money was alleged to have been paid. The other grounds of the demurrer, general and special, were properly overruled.</p>

<p>An order refusing to vacate the appointment of a temporary receiver cannot be reviewed on fast writ of error.</p>

The Court of Appeals certified to the Supreme Court the following questions (in Case No. 10507): “Is the following agreement void, first, as being contrary to public policy in that it provides for a divorce between the parties and dissolution of the marriage contract as one of the contingencies on which the alleged contract should be carried out; and, second, is the alleged contract void as being contrary to public policy, in that it appears therefrom that the same is in…

<p>Affidavit of illegality of execution. Before Judge Tipton. City court of Ashburn. October 13, 1919.</p>

<p>Interpleader. Before Judge Worrill. Early superior court. October 6, 1919.</p>

<p>1. Under the facts of this case the party who by the express terms of the written instrument was made the agent of the borrower continued throughout the transaction, which resulted in the loan of large sums of money, to be the agent of the borrower; and there was nothing in the transactions between the lender and this party so appointed agent of the borrower to annul or modify that contract and convert the party referred to as the agent of the borrower into an agent of the lender.</p> <p>(a) The ruling here made in no way violates the general principle, that agency is a question of fact and may be established by proof of circumstances, apparent relations, and the conduct of the parties.</p> <p>2. Where the owner of a number of lots of land conveyed them all to another person for the purpose of enabling the latter to secure a loan thereon, and the consideration of the deed covering the land was expressed to be one dollar and the agreement upon the part of the grantee to pay off $50,000 of indebtedness, and the further agreement upon the part of the grantee to ultimately release and convey to the grantor, free and clear of encumbrances, certain specified lots embraced in the entire tract conveyed, the provision that said lots shall ultimately be reconveyed by the grantee to the prior owner in no way limits or affects the right of a lender who advanced money to the grantee in this deed, or to his agent on the faith of this security, to proceed, against the entire property at once, upon default by the borrower in making payments according to the terms of the loan.</p> <p>3. Where the evidences of the loan thus made were in the character of bonds which were a lien upon the property referred to, and these bonds were in the hands of various holders for value, the trustee for the bondholders might, either with his own money or with money borrowed, pay off a prior encumbrance upon the land, so as to protect the interest of the bondholders, and have the same transferred to himself; and such payment and transfer would not extinguish the prior indebtedness, but, if not itself paid in accordance with the terms thereof, could be enforced by foreclosure or other appropriate procedure.</p>

<p>Complaint for land. Before Judge Searcy. Pike superior court. November 21, 1919.</p>

<p>Equitable petition. Before Judge Worrill. Terrell superior court. July 12, 1919.</p> <p>Upon the information of a citizen of Terrell county the solicitor-general of the Pataula circuit, in the name of the State, brought an equitable petition in the superior court of Terrell county against Clara Williams. The petition alleged that the defendant was keeping and operating a lewd house in Terrell county, and that the house was a nuisance under the laws of Georgia. The prayers were that the defendant be required to appear at the next term of the court to answer the suit; that she be enjoined from operating said house; and that the furniture, musical instruments, and other personal property in the house be seized under order of the court and sold to satisfy the costs of the suit. At the term next after service the defendant demurred to the petition. The demurrer was overruled, and she excepted.</p>

<p>Where one held hond for title for the conveyance of a certain tract of land tvhieh he had formerly conveyed to the maker of the hond for title to secure the repayment of money borrowed, and died without having completed the repayment of the loan, though a part of it had been paid, his widow was not entitled to an assignment of dower in the lands for which the decedent held the bond for title, and which were covered by the security deed. Such a case does not fall within the provisions of the statute embraced in the Civil Code, § 5248, relating to the assignment of dower in land partly paid for.</p>

<p>■ Equitable petition; intervention. Before Judge Park. Wilkinson superior court. October 7, 1919. (See 149 Ga. 585, 586, 101 S. E. 579, 580.)</p>

Equitable petition. Before Judge Hodges. Elbert superior court. October 9, 1919. By the second item of his will Thomas M. Hulme, late of Elbert county, devised to his wife a half undivided interest in fee in 193.8 acres of land. By the third item of his will the testator devised ;to his daughter, Mary E. Teasley, a half undivided interest in the same land, “ and at her death to be equally divided among her brothers and sisters.

<p>Complaint lor land. Before Judge Park. Hancock superior court. October 17, 1919.</p>

<p>Claim. Before Judge Graham. Wheeler superior court. September 24, 1919.</p>

Equitable petition. Before Judge Park. Wilkinson superior court. July 14, 1919. Shartle Brothers Machine Company (called Shartle Bros.) instituted an action of trover against the Pynetree Paper Company (called Pynetree Co.) in Wilkinson superior court, for the recovery of certain paper-mill machinery. The petition alleged that the machinery was of the value of $5,000 and the yearly rental value of $2,000.

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

Equitable petition. Before Judge Terrell. Troup superior court. November 24, 1919. In June, 1904, James G. Young and his wife, Martha J. Young, separated. On July 15, 1904, Mr. Young executed and delivered to Mrs. Young a warranty deed to a half undivided interest in certain lands in Troup county and in certain city lots in the city of LaGrange.

<p>Certiorari; from Court of Appeals. 23 Ga. App. 715.</p>

<p>Action for specific performance. Before'Judge Park. Putnam superior court. July 11, 1919.</p> <p>This action was brought by R. D. Stubbs against W. G. Armor, for specific performance of a contract for sale of land. A demurrer for want of a cause of action was overruled; and a demurrer by the plaintiff; to certain parts of the defendant’s answer was sustained. The defendant excepted to each of these rulings.</p>

<p>The facts, as disclosed by the allegations of the petition and the uncontra- ' dieted evidence present a case in which, as a matter of law, a court of equity should interpose a bar to the assertion of the plaintiff’s demand, on account ■ of his laches and long delay and the change of the status during that time.</p>

<p>1. Construction of pertinent municipal,ordinances is for the court.</p> <p>(а) In cases of doubt as to the meaning of an ordinance, the-title may be resorted to as furnishing' some aid in showing the intention of the municipality.</p> <p>(б) Where a municipality adopts an ordinance exempting a street-railroad from paving or macadamizing any portion of a city’s streets, but the ordinance also provides that the railroad company “ shall be required to prepare its tracks to receive and accommodate any such material as may be determined upon by said city,” such language does not authorize the city council to adopt an ordinance requiring the street-railroad company to prepare its tracks, etc., and further ' to pay for and place within the same such material as required by the city authorities.</p> <p>2. The court did not err in granting the injunction, and in denying the mandamus absolute as prayed for in the cross-action.</p>

<p>Injunction. Before Judge Hammond. Richmond superior court. June 24, 1919.</p>

<p>Where an equitable action was brought for recovery of both realty and personalty as well as rents and profits, for an accounting by the defendant as to the property, and for receivership, sale and division; and ' where on the trial, at the instance of the defendant and over objection by the plaintiffs, the court submitted to the jury the question solely . whether the plaintiffs were entitled to recover the lands, and did not submit any question that involved an accounting, or a recovery of the personalty; and where the verdict was in favor of the plaintiffs on the issue submitted, on which verdict a decree was accordingly entered; after which a motion by the defendant for a new trial was overruled,, and he excepted to this ruling, there was no final disposition of the whole case on which a writ of error would lie; nor would there have been a final disposition if the decision or judgment complained of had been rendered as the defendant contends it should have been.</p> <p>Leave is granted to treat as exceptions pendente lite the bills of exceptions as certified and filed.</p>

Equitable petition. Before Judge Hammond. Richmond su-. perior court. September 20, 1919. Frances Elizabeth Thomas, by next friend, filed an equitable petition in Richmond superior court against the administrators of the estate of Mrs. Sallie E. Thomas.

<p>Equitable petition. Before Judge Tarver. Murray superior, court. August 18, 1919.</p>

Equitable petition. Before Judge Worrill. Terrell superior court. September 22, 1919. In September, 1918, W. A. Baldwin, A. J. Baldwin, and tbe First State Bank brought an action against the Dawson Consolidated. Grocery Company, a trading corporation, and W. E. Riordan.

Ejectment. Before Judge Park. Jones superior court. October 22, 1919. Amelia Jackson brought ejectment against George Jackson, for the recovery of a certain tract of land in Jones county. The defendant filed a plea of the general issue. On the trial of the case a deed from Ben L. Jones to the plaintiff, conveying the tract of land in dispute, was introduced in evidence. The deed, executed on April 10, and recorded April 13, 1899, recited a consideration of $175.

Mandamus, etc. Before Judge Worrill. Decatur superior court. September 27, 1919. Cameron Burnside brought an action against the Town of Climax, a municipal corporation of this State, to recover thirty dollars interest on one of a series of electric-light bonds issued by defendant on November 1, 1913, and attorney’s fees and expenses of litigation.

<p>Equitable petition. Before Judge Mathews. Bibb superior court. August 18, 1920.</p>

<p>Equitable petition. Before Judge Wright. Whitfield superior court. October 19, 1919.</p>

<p>Exceptions to auditor’s report. Before Judge Tarver. Murray superior court. August 13, 1919.</p>

<p>Complaint for land. Before Judge Smith. Motion for new trial before Judge Hutcheson. Newton superior court. October 11, 1919.</p> <p>B. C. Harris died on December 24, 1913. His heirs at law were J. L. Harris, J. W. Harris, and Mrs. Etta Reynolds. He owned the land in controversy, subject to a deed whereby he had conveyed it as security for a note to Mrs Maude Thompson. J. W. Harris obtained temporary letters of administration, collected $2000 on a life-insurance policy, paid all the known debts other than that of Mrs. Thompson, and distributed equally among the three heirs the remainder of the amount collected. Nothing further appears with regard to the temporary administrator. On April 6, 1915, J. W. Harris executed to one Arnold, to secure a debt of $500, a deed conveying his undivided third interest in the land before mentioned. On March 29, 1917, all three of the heirs executed to Arnold a deed conveying all of the land to secure a debt of $804.09, with which they caused to be paid off and canceled the debt to Mrs. Thompson, as well as the expenses of making the Arnold loan. On November 27, 1917, the Georgia National Bank, transferee of Arnold, obtained judgment against J. W. Harris, on which execution issued; and on February 19, 1918, quitclaim deeds for levy and sale of J. W. Harris’s undivided third interest were executed by the bank and by Arnold, and were recorded on March 4, 1918. That interest was levied on and brought to sale under the execution, and a deed therefor by the sheriff to the bank was executed and recorded. On August 5, 1918, J. W. Harris, upon his application to the court of ordinary, was appointed permanent administrator of the estate of B. C. Harris, deceased; and on the same day he filed a petition for leave to sell the land in controversy, as the property of the deceased, for the purpose of paying debts and of distribution. Citation was duly published, but no personal notice of the application for leave to sell was given. The court of ordinary, at the October term, 1918, granted this application. On February ■ 22, 1919, the administrator commenced the present action to recover of the bank the undivided third interest it had bought at the sheriff’s sale, in order that it might be sold under the order of the court of ordinary, alleging that it claimed that interest adversely to the estate, but that it occupied in law the same position as a purchaser of such interest from J. W. Harris, the heir, would occupy. The bank answered, that it was not necessary for the plaintiff’ to have possession of the land to pay debts or for distribution; that there were no unpaid debts of B. C. Harris, deceased; that the land had descended to the heirs and title had vested in them and those claiming under them, including the bank; and that the land had been so dealt with by them, and not as an asset of the estate of the decedent, and they and the plaintiff were estopped.</p> <p>The judge (hearing the case by consent without a jury) rendered judgment for the defendant. A motion for new trial was overruled, and the plaintiff excepted. In addition to the general grounds of the motion, it was therein alleged that the court erred in excluding answers to the following questions to witnesses: (a) To G-, B. Reynolds, husband and administrator of Mrs. Etta Reynolds, deceased: “Are you claiming anything against the estate of B. C. Harris on behalf of yourself as administrator of your wife on account of this Maude Thompson debt?” — the answer to which would have been that he did, as administrator of Mrs. Etta Reynolds, claim to be subrogated to all the rights and debts that Mrs. Maude Thompson had against the estate of B. C. Harris, and that he had made demands of the plaintiff administrator for that purpose. (&) To the same witness: “Do you consent that this property be divided in kind, or do you demand that it be administered for the purpose of distribution?” — the answer to which would have been that he demanded a sale of the land for purposes of distribution, (c) To J. W. Harris: “What claim has J. L. Harris made against you, or demand for the distribution of the estate?” — the answer to which would have been that <T. L. Harris does not consent to a division of the estate in kind, but demands that it 1)0 administered for tlie purpose of distribution.</p>

<p>Action for specific performance, etc. Before Judge Wright. Chattooga superior court. October 18, 1919.</p>

<p>This was a habeas-eorpus proceeding brought to obtain the custody of a child; and under the evidence submitted it does not appear that the trial judge abused his discretion in awarding the custody to the respondents.</p>

<p>A petition for accounting of one sixth interest hi the proceeds of land sold was not subject to demurrer for want of equity and a cause of action, and of legal capacity in the plaintiff to maintain the suit; the alleged grounds of which action were (in brief), that the plaintiff was entitled to that interest by descent from the deceased father of herself and of the defendant’s testator, who fraudulently caused an attachment to be levied on the land and became the purchaser of it at sale under the attachment judgment, assuring the plaintiff that he was acting for her benefit and held the title in his name for her benefit, and that as soon as the land could be sold he would account to her for her interest; but that afterward he fraudulently sold the land, for less than its value, to a purchaser without notice.</p>

Equitable petition. Before Judge Howard. Muscogee superior court. November 19, 1919. Held: and to whom she had executed a bond for title. About that date M. 0.

<p>Complaint. Before Judge Kent. Twiggs superior court. August 25, 1919.</p>

<p>Indictment for murder. Before Judge. Walker. Warren superior court. November !>, 1919.</p>

<p>1. There was no error in the rulings on the admissibility of evidence, as set forth in the first division of the opinion.</p> <p>2. The evidence mentioned in the corresponding division of the opinion was irrelevant; but it was not of such harmful character as that its admission taken alone would be cause for reversal.</p> <p>3. The ease not being dependent solely upon circumstantial evidence, it was not erroneous, in the absence of a request, to fail to give in charge to the jury the provisions of section 1010 of the Penal Code relating to circumstantial evidence. Atkinson, J., dissents.</p> <p>4. The judge did not err in omitting to charge, without request, the theory of the defense as set out in the lltli and 12th grounds of the amended motion for new trial; such theory being founded entirely upon statements of the prisoners made before the jury.</p> <p>5. In the absence of an appropriate written request, it is not error to omit to charge the law in relation to impeachment of witnesses.</p> <p>6. Other special grounds of the motion for a new trial -which are not specifically dealt with above are without merit, and are not of such character as to require elaboration.</p> <p>7. The case being for a decision by a full bench of six Justices, who are evenly divided in opinion on tlie question as to whether the evidence authorized a conviction of Rosa Crawley, three of them, Eish, C. J., and Hill and Gilbert, JJ., being of the opinion that the evidence was not sufficient, and three of them, Beck, P. J., and Atkinson and George, JJ., being of the contrary opinion, it is considered and adjudged that the judgment of the court below refusing a new trial as to Rosa Crawley stand affirmed by operation of law.</p> <p>8. All of the Justices are of the opinion that the verdict as to Blain Stewart, and George and Decatur Crawley, was supported by tlie evidence.</p>

<p>Under a devise of land to the testator’s widow for lier life, with remainder lo four named children, “ to them and their heirs forever,” but if any of them should die without heirs “ then sueli share or such shares to go to and belong to the survivors of these above mentioned,” the title to the interest of one of the four remaindermen (H.) vested, upon his death unmarried and childless, in the survivors of the four remainder-men named in the will; and the child of one of those four, who had died before the death of TL, took no interest.</p>

<p>Under the facts set forth in tlie subjoined report of the ease, tlie intervenor was erroneously permitted to make the defense to the suit pending between the bankrupt, the defendant, and the party plaintiff who was seeking to recover in an action for tort. Atkinson, j., dissents.</p>

Ejectment. Before Judge Park. Jones superior court. August 30, 1919. This action was brought to recover approximately two acres of farm land. Upon extended and somewhat conflicting evidence the jury found for the defendants; and the plaintiffs motion for a new trial was overruled.

<p>Illegality of execution. Before Judge Littlejohn. Lee superior court. May 24, 1919.</p>

<p>Equitable petition. Before Judge Wright. Cobb superior court. November 19, 19Í9.</p>

<p>Equitable petition. Before Judge Worrill. Decatur superior court. November 14, 1919.</p>

<p>Equitable petition. Before Judge Walker. Wilkes superior court. November 6, 1919.</p>

Equitable petition. Before Judge Hodges. Walton superior court. November 8, 1919. According to the plaintiff’s contention, and evidence on which the verdict in her favor was based, her husband (Johnson) bought a town lot of Clemmons, paid for it, and caused Clemmons to execute to Mr. Arnold a deed to secure a loan of money to build a house upon it. The property was thereafter occupied by Johnson and his wife, and by no one else.

Injunction. Before Judge Pendleton. Fulton superior court. November 13, 1919. The plaintiffs occupied under lease the second floor of a building, the entrance to which floor was by stairway from the sidewalk. In the several rooms on this floor they conducted extensively the practice of dentistry.

<p>Tlie general rule is that instructions by the court to the jury must be authorized by tlie evidence submitted to the jury; and where such instructions are not so authorized, and are calculated to mislead and confuse the jury, the error requires a new trial.</p>

<p>Habeas corpus. Before Judge Nunnally. City court of Floyd county. January 7, 1920.</p>

Equitable petition. Before Judge Mathews. Bibb superior court. January 26, 1920.

<p>1. The failure of the court, in the trial of a case of rape, to instruct the jury that no conviction can be had unless the victim’s testimony is corroborated by that of other witnesses, is not error, where it appears that the testimony of the woman alleged to have been, ravished was corroborated by that of other witnesses.</p> <p>2. The evidence authorized a charge upon the law of confessions of guilt.</p> <p>3. Where in a criminal case no motion for a postponement of the trial or a continuance of the case is made, and no ruling of the court invoked and made, there is nothing which this court can review.</p> <p>4. A conviction in a capital case cannot be set aside for the admission of depositions in pursuance of voluntary stipulations by the parties. By making such stipulation the defendant waives his constitutional right to be confronted by the witness. The stipulation is binding whether made by the defendant or his counsel, and whether his counsel be of his own choosing or are appointed by the court to represent him in the trial of his case; especially where no objection to the admission of the depositions, or to the power of counsel to make the agreement, was raised.</p>

<p>Indictment for murder. Before Judge Summerall. Ware superior court. January 10, 1920.</p> <p>Waters and Broxton were jointly indicted for the murder of Truman and James McQuaig. They severed. AVaters was tried and found guilty, with recommendation of life imprisonment. He excepted to the refusal of a new trial. The evidence for the State tended to show that the McQuaigs were shot and killed with guns fired by AVaters and Broxton at a distance of fifty or sixty feet; that a quarrel had occurred a few minutes previously, concerning the use by the McQuaigs of a boat belonging to the employer of the 'accused; that the McQuaigs understood that this was settled and had started off wheu they were shot; that they were unarmed, and did not assault or menace the accused. Eor the defense it was contended that the McQuaigs were advancing on the accused with open knives; that they were killed by Broxton, not by Waters, wbo Fred his gun into the ground to frighten them, etc. The special grounds of the motion for new trial were, in brief:</p> <p>(1) That the court, in charging the jury, used the expression, “the presumption of innocence is on his side of the case, and continues,” etc., when it should have been charged that the accused entered upon the trial with the presumption of innocence in his favor. Also the expression, “make good,” instead of “establish,” in charging that if the State had “failed to make good by proof the material allegations in the indictment,” the jury would not be authorized to convict the accused.</p> <p>(2) That in charging on dying declarations the court expressed an opinion of what was proved, by using the words, “ The alleged statement made by the decedent is admitted to the jury merely upon prima facie evidence of its verity.” In the same connection it.was charged that it was the province of the jury to determine whether the evidence submitted showed a dying declaration in fact; and that in order for such declaration to be admissible it must appear from the evidence that the declarant was in the article of death, conscious of his condition, etc.</p> <p>(3) That the court erred in not charging the jury with reference to evidence other than sworn testimony (although the charge did refer to the entire evidence); accused contending that the omission was harmful, because of testimony that a knife was found near a blood spot where one of the deceased fell, which knife (as Broxton and Waters contended) was in the hand of deceased-as he advanced on Broxton.</p> <p>(4) That the court erred in not charging in reference to voluntary manslaughter as applicable to cases of mutual combat.</p> <p>(5) That the court received, over objection made when it was offered, testimony of the father of the deceased, that James Mc-Quaig, one of the deceased, said: “Beloved Lord, have mercy on me. Don’t hold me accountable for this deed; for I am not to blame. Tell Mama I am not to blame for this killing. Put mo down, Papa. I can’t stand it. I crawled here.” Also, that James MeQuaig told the witness that Truman MeQuaig did not move at all after he was shot. Upon objection that this was hearsay and no part of a dying declaration, and was prejudicial and harmful, the court ruled: “I will let it stay in for the present.” On the following day, at the conclusion of the evidence, the court, upon an admission in open court by the State’s counsel that they had no objection to the sustaining of the motion to exclude the testimony referred to, ruled it out. It was contended that the court erred in not ruling it out in the first instance, in leaving it before the jury until the evidence was closed, and in not instructing the jury to disregard and not consider it.</p> <p>(6) That the court overruled a motion to declare a mistrial upon the making of the following argument by one of counsel for the State: “You cannot afford, gentlemen, to pay any attention to the evidence of Broxton to the effect that he killed both of the McQuaig boys; because he is jointly indicted with Waters, and is to be tried as soon as this case is finished; and we know that in the preparation of his defense Waters could have induced the witness Broxton to testify for him and claim that he did all the killing, upon the trial .of this case, and then, upon the trial of Broxton which is to follow, to have Waters, the defendant in this case, swear in behalf of Broxton.”</p> <p>(7) That the court refused to grant a continuance on account of the absence of two witnesses for the accused, who were sick and unable to come to court. The State’s counsel admitted what it was expected to prove by one of these. By the other it was expected to prove, as counsel for the accused stated, that the witness went, very soon after the shooting and on the same evening, to the place where it occurred; that neither of the deceased made any dying statements or declarations as to the manner in which they were shot or as to the cause of their death; that no examination of the place was made on that afternoon or night, and on account of darkness there was no opportunity for such examination until the next morning; that witness found the hat of one of the deceased across the lake on the opposite side from where the shooting occurred, and in the direction of the home of deceased, one of whom was barefooted and wet from head to foot. Accused contended that this one was advancing in this condition for the purpose of attacking the accused, following him a distance of 150 yards or more in the direction of his home and to the place of the killing.</p>

<p>Indictment for murder. Before Judge Hammond. Richmond .superior court. April 10, 1920.</p>

<p>Habeas corpus. Before Judge Clayton Jones. City court of Albany.- April 13, 1920.</p>

<p>Complaint for land. Before Judge Blair. Cherokee superior court. April 15, 1920.</p>

<p>Indictment for murder. Before Judge Kent. Laurens superior court. April 17, 1920.</p>

<p>Equitable petition. Before Judge Ellis. Fulton superior court. January 6, 1920.</p> <p>B. H. Yining et al. brought a petition against Lucien Harris, . tax-collector, to enjoin him from collecting an automobile tax under an act of the legislature approved August 20, 1918 (Acts 1918, p. 48, sec. 2, par. 16). That paragraph is as follows: “Automobile Garage. Hpon each person, firm, or corporation carrying on the business of operating garages, either for storage or repairing automobiles, or keeping same for hire, in cities of more than 35,000 inhabitants, $25.00. In cities of between 20,000 and 35,000 inhabitants, $15.00. In cities of between 10,000 and 20.000 inhabitants, $10.00. In cities or towns of from 1000 to 10.000 inhabitants, $5.00. And upon each person keeping a car for hire in cities, or towns of less than 1,000 inhabitants or in any place outside of an incorporated town, shall pay a tax of $5.00.” It is alleged in the petition, that the attempt to collect the tax from petitioners is illegal, because the tax is upon a person, firm, or corporation carrying on the business of operating a garage either for storage or repairing automobiles, or keeping same for hire, in cities of the size therein designated; that petitioners are residents of the City of Atlanta, {which is a city of more than 35,000 inhabitants; that the defendant is attempting to collect the license tax from each of them; that each of them owns an automobile which he operates for hire, carrying passengers for hire in the City of Atlanta; that none of them are engaged in carrying on the business of operating garages either for storage or repairing automobiles, or keeping the same for hire, and none of petitioners comes within the class designated in the act; that the defendant is attempting to enforce the payment of the tax, and is threatening either to seize the property of petitioners for the collection of the tax or to prosecute them for carrying- on the business which they claim they are carrying on, contrary to law, the purpose of the threatened prosecution being to compel petitioners to pay the tax, and the defendant is threatening and attempting to prevent petitioners from operating their automobiles if they do not pay the tax; that the collection of the tax would be illegal, and if they are compelled to pay it they would be without remedy for the recovery of the amounts paid by them; and that if the collection of the tax is not enjoined, they will suffer damage for which they have no adequate legal remedy. They pray, that the defendant be restrained from further attempting to collect the tax from petitioners, or from seizing or attempting to seize any property belonging to them, or from interfering with them in the conduct of their business; and for general relief. A general demurrer was filed, on the ground that the petition set out no cause for equitable relief, and that it shows on its face that petitioners are liable for the tax the payment of which they seek to enjoin. The court overruled the demurrer, and the defendant excepted.</p>

<p>Indictment for murder. Before Judge Kent. Laurens superior court. January 17, 1920.</p>

<p>Injunctions. Before Judge Hammond. Glascock superior court. January 20, 1920.</p> <p>Citizens of Gibson, Glascock County, brought petitions against that county and Sammons, its commissioner of roads and revenues, to prevent the consummation of an advertised purpose to sell two acres of land in Gibson, called the public square, whereon stood the county court-house until a few years ago, when a new court-house was built at a different placo in the town and the old 'building removed. The plaintiffs showed that the public square was dedicated, many years before, by the inferior court of the county to the citizens of the town and county, as in the nature of a public park; and set up several things indicating acceptance of the dedication. On behalf of the defendants it was denied that the land was ever so dedicated; and it was asserted that the commissioner had the right to sell it as unserviceable property of the county. The court’s syllabus (supra) states the other material facts.</p>

<p>Certiorari. Before Judge Harrell. Decatur superior court. February 18, 1920.</p>

<p>Habeas corpus. Before Judge Gower. Ben Hill superior court. April 23, 1920.</p>

<p>Certiorari. Before Judge Hardeman. Washington superior court. June 24, 1920.</p> <p>The assignments of error referred to in the second headnote were: (1) Upon the allowance by tire ordinary, on the hearing of the habeas corpus, of the wife of the defendant to join in his defense by way of amendment making her a party, without petition to be allowed to intervene. (2) Upon the reception in evidence of a letter purporting to have been received by a witness for the defendants from the plaintiff, without due proof of its execution or of handwriting.</p>

<p>Indictment for murder. Before Judge Terrell. Carroll superior court. June 15, 1920.</p>

<p>Indictment for murder. Before Judge Harrell. Talbot superior court. March 22, 1920.</p>

<p>The judicial power will not be exerted to stay the .course of legislation while it is in process of enactment; and this principle is applicable both to ordinary legislation and to the analogous course of an amendment of the constitution from the time of the introduction of the act proposing the amendment until the electors have acted.</p>

<p>Complaint lor land. Before Judge Pendleton. Fulton superior court. January 19, 1920.</p>

<p>Indictment for murder. Before Judge Summerall. Coffee superior court. June 11, 1920.</p>

■ Certiorari; from Court of Appeals. 24 Ga. App. 601. L. R. Ross brought a suit for damages against Frank Garraux, executor of A. C. Gann, deceased, and on the trial the jury returned a verdict for the defendant. On the following day, November 9, 1918, the plaintiff presented a motion for new trial, which was approved by the court and was filed on the same day.

<p>Habeas corpus. Before Judge Ellis. Fulton superior court. January 12, 1920.</p>

<p>A petition for removal to the United States district court of the case made by an action brought in the city court of Atlanta by a citizen and resident of Alabama against a corporation of Illinois, having an agency in the city of Atlanta, Georgia, for damages from an alleged tort committed on the plaintiff by a servant of the defendant corporation, was rightly denied. The suit could not originally have been properly brought in the district court of the United States for the northern district of Georgia, although the defendant had an agency and usual place of business in Atlanta; and therefore it could not be removed to that court from the State court.</p>

<p>Claim. Before Judge Hodges. Walton superior court. November 29, 1919.</p>

Before Judge Ellis. Pulton superior court. December 6, 1919. E. H. Womack filed suit for divorce against Mrs. Lula B. Womack. The defendant answered the suit, and in a cross-petition prayed for temporary and permanent alimony. On the final trial the jury returned a verdict finding a total divorce for both parties, and permanent alimony for the wife and child, to be paid in monthly installments.

<p>Complaint for land. Before Judge Sheppard. Tattnall superior court. November 28, 1919.</p>

<p>Equitable petition. Before Judge Searcy. Pike superior court. January 3, 1920.</p>

<p>The eighteenth amendment to the constitution of the United States, and the “national prohibition act” popularly known as the Volstead act, do not supersede or abrogate the existing State law known as the prohibition act, approved March 28, 1917 (Act Ex. Sess. 1917, p. 7). The court did not err, therefore, in refusing to release on writ of habeas corpus one hold in custody by virtue of a warrant based on an accusation in a city court, charging the petitioner with violation of said State prohibition law.</p>

<p>Petition for injunction. Before Judge Sheppard. Liberty superior court. January 3, 1920.</p>

<p>Injunctions. Before Judge Hodges. Elbert superior court. February 5, 1920.</p>

<p>Divorce and alimony. Before Judge Wright. Floyd superior court. February 28, 1920.</p>

<p>Indictment for murder. Before Judge Graham. Bleckley superior court. March 20, 1920.</p>

<p>Attachment for contempt. Before Judge Meldrim. Chatham sfiperior court. March 13, 1920.</p>

<p>The evidence in this case, upon which a verdict of guilty was rendered, was entirely circumstantial, and was not sufficient to exclude every reasonable hypothesis other than that of the defendant’s guilt; and it was error to deny him a new trial upon motion therefor duly made.</p>

<p>Temporary alimony, etc. Before Judge Irwin. Douglas superior court. April 7, 1920.</p>

<p>Attachment for contempt. Before Judge Terrell. Coweta superior court. April 21, 1920.</p>

<p>Attachment for contempt. Before Judge Kent. Laurens superior court. April 17, 1920.</p>

<p>A question of the jurisdiction of the State court to try and punish one accused of crime is not raised under the usual general grounds of a motion for a new trial, complaining that the verdict is contrary to evidence, contrary to law, and without evidence to support it.</p> <p>Question certified by Court of Appeals (Case No. 11455).</p>

<p>1. A resolution by the mayor and council of the City of Elberton, providing for the removal of wooden and sheet-metal awnings in the business section of the city, is prima facie valid.</p> <p>2. While the governing authorities of the municipality may not needlessly, capriciously, and arbitrarily require the removal of awnings from its streets, whether erected under an express or implied license, the burden is upon the plaintiff to show a needless, capricious, or arbitrary exercise of power by the governing authorities of the municipality; and where the evidence relied upon to show such arbitrary exercise of power, consisting of affidavits, is specified in the bill of exceptions as a part of the record, and such affidavits are brought to this court as a part of the transcript of the record, and not otherwise, no attempt being made. to brief such affidavits or to eliminate immaterial and unnecessary portions thereof, such affidavits will not be considered by this court.</p>

<p>Appeals. Before Judge Park. Morgan superior court. December 20, 1919.</p>

<p>Questions certified by tlie Court of Appeals (Case No. 11218).</p>

<p>Petition for injunction. Before Judge Dickerson. . Berrien superior court. March 16, 1920.</p>

Indictment for murder. Refore Judge Wright. Eloyd superior court. May 7, 1920. Charlie Harris was indicted, tried for murder, and convicted. He was sentenced to be hanged. He moved for a new trial. It was refused. He excepted, and the judgment of the court below was affirmed. 149 Ga. 724 (102 S. E. 159).

<p>Petition for injunction. Before Judge Harrell. Decatur superior court. May 26, 1920.</p>

<p>Indictment for murder. Before Judge Walker. Warren superior court. June 8, 1920.</p>

<p>1. Where on habeas corpus before a city-court judge the custody of a child was placed with a third person not a party to the action, by oral order without entry of formal written judgment, the judge who made that award was without jurisdiction of the person to make, during the following month, without notice, other and different disposition of the minor.</p> <p>2. It was error for the judge of the superior court, on later hearing of habeas corpus, to sustain a plea of res adjudieata, and to hold that he was bound -by the order of the city-court judge.</p>

<p>The thirteenth section of the act of August 14, 1913 (Acts 1913, pp. 123, 130), relating to the duties and defining the powers of the State tax-commissioner created by that act, and providing for notice to the chairman of the county board of tax-assessors of any county whoso valuations upon the various classes of property in the county have been increased, and for arbitration in case of dissatisfaction of the county board of tax-assessors with the action of the State tax-commissioner, and for a decision by a majority of the arbitrators fixing the final assessment of the various classes of property in the county affected by the order of the State tax-commissioner, is not unconstitutional ou the ground that it is in conflict with article 7, section 2, paragraph 1, of the constitution of Georgia (Civil Code, § 6553), which declares that all taxation shall be uniform upon the same class of subjects and ad valorem upon all property subject to be taxed within the territorial limits of the authority levying the tax; nor is it repugnant to the due-process clause of the constitution of the United States, as contained in the fourteenth amendment, nor does it deprive the individual taxpayer of a county of the equal protection of the laws and of due process as guaranteed by the constitution of the State of Georgia.</p>

<p>Certiorari; from Court of Appeals. 24 Ga. App. 439.</p> <p>Mrs. M. Kelly filed a suit in the superior courts for damages from personal injuries, against the Georgia Railway and Power Company and the American Railway Express Company as joint tort-feasors. The Georgia Railway and Power Company filed a demurrer to the petition, on the grounds of misjoinder of defendants, misjoinder of actions, and because the petition failed to itemize the drug bills and the doctor’s bill alleged to have been incurred. On February 4, 1919, the judge passed the following order on the demurrer: “This demurrer is, upon consideration thereof, sustained, with leave granted to plaintiff to amend on or by the 1st of March 1919.” On February 10, 1919, the plaintiff sued out a bill of exceptions to the' Court of Appeals, wherein it was stated: “Plaintiff excepted to said judgment, and now excepts and assigns the same as error, and says that the court erred in sustaining said demurrer on each and every ground set out in the demurrer, and says that said judgment is contrary to law.” The bill of exceptions was filed in the office of the clerk of the Court of Appeals on February 18, 1919. On February 2S, 1919, the plaintiff, in response to tíre’ judgment on the demurrer, offered an amendment to her petition, which on that date was allowed by the court and ordered filed, subject to demurrer. In advance of the hearing of the ease in the Court of Appeals the Georgia Railway and Power Company filed in that court a motion to dismiss the bill of exceptions, on the ground 'that it was premature, because the judgment on the demurrer upon which error was assigned was not a final judgment, and that the ease was still pending in the trial court. The Court of Appeals overruled the motion to dismiss, holding that the judgment complained of was a final judgment passed on the demurrer, and reversed the judgment sustaining it..</p>

<p>Equitable petition. Before Judge Dickerson. Berrien superior court. December 31, 1919.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. February 11, 1920.</p>

<p>Indictment for rape. Before Judge Irwin. Haralson superior court. June 16, 1920.</p> <p>The motion to dismiss was on the alleged ground that the brief of evidence in the record was not condensed and succinct, not reduced to narrative form, and contained immaterial questions and answers.</p>

<p>Petition for injunction. Before Judge Dickerson. Berrien superior court. December 9, 1919.</p>

<p>Complaint for land. Before Judge Mathews. Bibb superior court. December 8, 1919.</p>

Action for specific performance. Before Judge Ilighsnrith. Evans superior court. November 17, 1919. On September 30, 1918, Nettie Wallace (formerly Nettie Elrod), as next friend of her infant child, John Willie Elrod, brought an equitable action against D. O. Bell as administrator of the estate of John W. Bell, deceased.

<p>Equitable petition. Before Judge Parle. Greene superior court. January 2, 1920.</p> <p>Mrs. Julia Moore brought petition against W. W. Price of Greene county, and W. T. Brightwell of Oglethorpe county, alleging, in part, that Guy B. Brightwell, on and prior to January 10, 1907, held title to a tract of land in Greene county, Georgia, known as the E. D. Gillen place, containing in all 117 acres, which she described in the petition; and on January 10, 1907, Guy R. Brightwell executed to petitioner a deed to a portion of this land, in which deed the land conveyed was described as follows : “ That tract of land lying and being in the State of Georgia, County of Greene, known as the E. D. Gillen place, described as follows: beginning at a point on the public road leading from Maxeys to Skull Shoals, marked by a stone corner at intersection of A. J. Gillen’s line; thence along said road in a westerly direction 25.40 chains to a rock corner; thence N. E. 23.25 chains to a stone or persimmon corner; thence east25.40 chains to a stone and apple-tree corner; thence S. W. 19.70 chains along line of A. J. Gillen to said beginning point. This description is taken from plat made by J. S. Callaway (but only general description of lines is given), surveyed by said Callaway on November 19, 1906, containing 52 acres, more or less.” This deed was recorded on’ the date of its execution. Guy R. Brightwell, on November 14, 1916, conveyed to J. M. Wilhite the remainder of the Gillen place; and Wilhite, on January 3. 1917, conveyed the same to W. T. Brightwell, the description in each deed to the remainder of said land being as follows: “That part of the E. D. Gillen place in Greene county lying west of the part sold to Mrs. Julia Moore, adjoining lands of the said Mrs. Moore on east; public road from Maxeys to Skull Shoals and lands of B. E. Maxey on the south; lands of B, E. Maxey and the old Gillen place on the west; and W.'G. Eord lands on the north; containing 65 acres, more or less; this being the part of the place shown on plat made by J. W. Tiller on November 19, 1906, marked 30 and 35 acres, the plat being attached hereto.” It was alleged that the plat referred to in the deed is that of J. S. Callaway, Tiller having never made a plat of said land; that Price held under a bond for title from W. T. Brightwell, which bond for title was made to Price during the year 1917, and in which the land agreed to be sold to Price was described as hereinbefore set out in the deed from J. M. Wilhite to W. T. Brightwell. The defendant admitted the allegation.that he held a bond for title to 65 acres of land, more or less, lying to the west of Mrs. Julia Moore’s land; and claimed that the land in controversy was within the description contained in the bond for title; he also set up prescriptive title arising from seven years possession under color of title; and moreover, that a line had been agreed upon between the parties and acquiesced in for seven years, and that under this agreement in regard to the line the land in-controversy was his. The jury trying the case returned a verdict for the plaintiff. The defendant made a motion for a new trial, which was overruled.</p>

<p>Indictment- for murder. Before Judge Thomas. Colquitt superior court. January 23, 1920.</p>

<p>Action to establish lost deed. Before Judge Thomas. Berrien superior court. February 14, 1920.</p>

Equitable petition. .Before Judge Graham. Glynn superior court. January 13, 1920. Lizzie Davis brought an equitable petition against Ella Eeed, to cancel certaili deeds which had been executed by one Doe Saunders in his lifetime to Ella Eeed, on the ground of undue influence exerted by Ella Eeed over Doc Saunders, and on the further ground of-mental incapacity on the part of the grantor-in said deeds to contract at the date of their execution.

<p>Complaint for land. Before Judge Walker. Lincoln superior court. January 27, 1920.</p>

Habeas corpus. Before Judge Nunn ally. City court of Floyd county. March 3, 1920.

<p>Indictment for murder. Before Judge Trwin. Haralson superior court. January 2, 1920.</p>

Indictment for murder. Before Judge Mathews. Bibb superior court. July 28, 1920.

<p>Indictment for murder. Before Judge Gower. Wilcox superior court. August 20, 1920.</p>

<p>Indictment for murder. Before Judge Hardeman. Toombs superior court. October 8, 1920.</p>

<p>Injunction. Before Judge Pendleton. Fulton superior court. December 18, 1919.</p> <p>W. C. Abercrombie and Nesbit Harper sold to W. A. Sims a certain tract of land in Douglas County, containing 340 acres, more or less, and executed to Sims their bond for titles. Sims gave Abercrombie and Harper his promissory notes aggregating $4,700 for the balance of the purchase-money, each note due on a certain date, annually thereafter. The notes contained the stipulation that time was of the essence of the contract, and that if any one of the notes should fall due and remain unpaid for a period of ninety days after maturity, then all of the unpaid notes were to become due and payable. On October 8, 1919, the vendors, Abercrombie and Harper, filed in the city court of Atlanta their suit against Sims, returnable to the November term, 1919, on all of the notes representing the balance of the purchase-money, less certain credits which had been placed on the first note falling due. In the suit against Sims it was alleged that he had failed to pay one of the notes of $500 due January 28, 1919, and that by his failing to pay this note within ninety days after its maturity all of the notes became due and payable. On November 3, 1919, W. A. Sims and J. H. Disharoon filed in the superior court of Fulton County their petition against Abercrombie (a non-resident) and Harper, alleging substantially the facts above set out, and further: that on April 10, 1918, Sims transferred to Isaiah Norton all of his interest in the bond for title executed by Abercrombie and Harper; that about May 10, 1918, Norton transferred the bond for title to J; S. Reynolds; that about October 31, 1918, Reynolds transferred the bond for title to J. H. Disharoon, one of the plaintiffs; that since the bond for title was executed and delivered by Abercrombie and Harper the latter had tortiously cut and removed certain growing timber from the land sold to Sims, the quantity of which was unknown to the plaintiffs, but estimated by them to be about 250,000 feet of the approximate value of $7 per thousand feet (by amendment this value was placed at $25 per thousand feet); that this timber was cut during the time from the date of the execution of the bond for title to Sims to the time of the transfer by Sims to Norton, and from the time of the transfer from Norton to Reynolds; that Reynolds transferred to Disharoon all of the right, title, claim, demand, and cause of action which Reynolds had against the defendants on account of the tort committed by the defendants in cutting and removing the timber; that five acres of the tract of 340 acres sold by the defendants to Sims was, at the time of the execution of the bond for title and at the time of filing the present petition, owned and possessed by one A. R. Bomar; that Abercrombie and Harper failed to put Sims and his transferees of the bond for title in possession of the five acres of land; that this land was worth approximately $75 per acre; that Abercrombie, one of the defendants, had collected certain rents from the land covered by the bond for title, without the consent of the transferees, and had failed to make any report of the same to the plaintiffs; and that the plaintiffs “are entitled to have set off against and credited on such notes, in the order of their due date, the value of the timber cut and removed by the defendants, . . the value of the five acres of land the possession of which the defendants have failed to deliver as aforesaid,” and are entitled to credit for the rents collected, and to an accounting from the defendants for the value of the timber cut and removed from the land. They pray that the suit in the city court be enjoined; that the defendants be required to set up in this proceeding their claim on the notes; also for an accounting, and for judgment for the timber cut and removed, and for the value of the five acres oí land, and for the rents collected by Abercrombie; and that such amounts be credited on the notes sued upon in the city court. The defendants filed an answer to the petition, denying the material portions of the plaintiff’s allegations. After the introduction of evidence the court granted an interlocutory injunction restraining the defendants from prosecuting the suit in the city court. The defendants excepted.</p>

<p>Petition for injunction. Before Judge Terrell. Heard superior court. December 29, 1919.</p>

<p>Attachment for contempt. Before Judge Harrell. Dougherty superior court. January 17,1920.</p>

<p>Questions certified by Court of Appeals (Case No. 10530).</p>

<p>Petition for prohibition. Before Judge Mcldrim. Chatham superior court. February 13, 1920.</p>

<p>Equitable petition. Before Judge J. B. Jones. AVhite superior court. January 31, 1920.</p>

<p>The facts stated in the petition, taken as true (as they must be when tested by general demurrer), fail to show negligence by the defendant; and tlie petition was properly dismissed. The judgment of the Court of Appeals, reversing that of the trial court, was erroneous.</p>

<p>Indictment for rape. Before Judge Harrell. Calhoun superior court. August 19, 1920.</p>

<p>Equitable petition. Before Judge Worrill. Early superior court. April 7, 1920.</p> <p>Mrs. Sarah J. Hilton, J. S. Sherman, and H. E. Hightower, as executors of the estate of E. Hilton, filed an equitable petition against the City of Blakely, a municipal corporation, to enjoin the enforcement of a tax fi. fa. for three thousand dollars, issued by the city for taxes alleged to be’ due on certain personal property of the estate in the hands of the executors. The petition alleged, in part, that E. Hilton at the time of his death was domiciled in the County of Early, this State, outside of the corporate limits of the City of Blakely, and that one of the three executors was a resident of the city, while two of them resided beyond the corporate limits of the city and in the County of Early. General and special demurrers to the petition were overruled, and the city excepted. On review by this court it was ruled that, on the allegations of fact set out in the petition, none of the personal estate of E. Hilton in the hands of his executors for administration and in process of administration was liable to taxation by the city. City of Blakely v. Hilton, 150 Ga. 27 (102 S. E. 340). In the opinion filed it was pointed out that the will of E. Hilton was not attached to the petition, and that if it should appear upon the trial that the executors were in fact trustees, the rule announced in Trustees of the Academy of Richmond County v. Augusta, 90 Ga. 634 (17 S. E. 61, 20 L. B. A. 151), would be controlling. Before the trial Mrs. Sarah J. Hilton died, and the case proceeded in the names of J. S. Sherman and Ii. E. Hightower as the surviving executors against the city. On the trial it was admitted that the allegations of fact in the petition were true; and the plaintiffs introduced in evidence a duly authenticated copy of the will of E. Hilton, and closed. In item one of the will the bequest is directly to three named minor children for their education. In item two the bequest and devise is directly to the wife during her life or widowhood. In item three the provision made for the wife in item two is declared to be in lieu of dower, year’s support, and any other interest in .testator’s estate, except such as may be provided for in the will. In item four the executors are directed to furnish to the wife a home, “to be selected by her and to be her property,” at a cost not to exceed a designated sum of money, “to be used as a home for herself and my said minor children and for any other of my children who may wish to reside there.” In this item the testator also bequeathed directly to the wife all household furniture owned by him at the time of his death. In item five, “after the foregoing provisions . . have been complied with,” the devise is directly to the wife and children by name; to the wife for life or widowhood, with remainder to the children; to the children in fee, and if any of them should die leaving children before the death of the testator, then to such surviving child or children. The remaining items of the will are as follows: “Item 6. I leave it discretionary with my executors hereinafter named, as to the time when, the manner in which, and the circumstances under which my said estate should be divided, as provided in item five of this will. I confer upon my said executors, or a majority of them, full power and authority to sell, either at public or private sale, any or all of the property of my estate, for the purpose of carrying out the provisions of this will. And they shall likewise have full power and authority to execute any contract or instrument of writing necessary to carry out this will. Item 7. Until the division of my estate, as provided for in item five of this will, shall have taken place, the income therefrom, after making provision as set forth in items one and four of this will, shall be paid over for the use and benefit of my wife and children named in said will, share and share alike, and the portion of said income belonging to any minor children shall be invested and used for their benefit by my executors, who are hereby constituted and appointed testamentary guardians for all of my children who may be minors, with full power and authority to make necessary investments and expenditures for the support, maintenance, education, and benefit of my said minor children, without making either report or returns to any court. Item 8. I constitute and appoint my wife, Sarah Hilton, and my two sons-in-law, J. S. Sherman and IT. E. Hightower, executors of this my will. They shall serve without any compensation; they shall not be required to give bond, or to make any returns to any court whatsoever. In case of disagreement among my said executors in reference to any act which they have authority to perform under this will, a majority of them shall control. Having confidence in the integrity and business judgment of my executors, I desire that they shall wind up my estate, according to the terms of this will, whenever and however they may deem best. I recommend, but do not require, that all of my interest in Alabama be disposed of in as speedy a manner as it can be done without sacrifice. The other property may be kept together and dealt with and managed in such way as my executors may deem to the best interest of my estate.” In effect the trial court held that the will did not create a trust within either the reason or letter of the rule announced in Trustees v. Augusta, supra, directed a verdict for the plaintiffs, and entered a decree enjoining the municipality as prayed. The city excepted.</p>

<p>Accusation of possessing intoxicating liquor. Before Judge Wheeler. City court of Hall county. September 25, 1920.</p> <p>Tile evidence was, in brief, as follows: ICimsey, a policeman, with some other officers, searched the place of business of Ed Scroggs, the accused. When they went in, Earl Dean, who had been working there, went back to the safe and closed and locked it. They tried to get him to open it, and he would not do so. Scroggs was not present. While Kimsey procured a dray the safe was kept under watch, and was then carried to the city hall and locked in a cell. In about two days Kimsey and others drilled it open and found in it four gallons of whisky. Scroggs refused to open it. It was left locked up in the city hall from the time of the raid until it was opened. Neither Kimsey nor the other witnesses who testified stayed with it all the time until it was opened. If any one had known the safe-lock combination and had a key to the cell, he could have opened it and put the whisky in it; but the witness knew “that no one did open it or put the whisky in it." Kimsey did not know whether Earl Dean owned any interest in the business or was working for Scroggs.</p>

<p>Accusation of possessing intoxicating liquor. Before Judge Wheeler. City court of Hall county. October 14, 1920.</p>

<p>Accusation of possessing intoxicating liquor. Before Judge Wheeler. City court of Hall county. September 25, 1920.</p>

<p>Temporary alimony, etc. Before Judge Sheppard. Liberty superior court. January 3, 1920.</p>

<p>Indictment for murder. Before Judge Kent. Laurens superior court. January 17, 1920.</p>

<p>Divorce, etc. Before Judge Meldrim. Chatham superior court. January 27, 1920.</p> <p>The petition of Moselle Roberts, filed on August 27, 1919, represented: that on June 4, 1919, Edward B. Roberts obtained against her a final verdict and decree of total divorce, in Chatham superior court; that the service of the divorce suit was by publication in a Savannah newspaper; that the defendant therein (petitioner) never received any actual notice of the filing, of the divorce case, or of the verdicts or the decree, until after the decree was issued; that in the libel for divorce it was alleged that Moselle Roberts was a non-resident of Georgia, residing in Massachusetts at a place in said State unknown to the libellant, which allegation was false, for that at the time of filing the action for divorce Edward B. Roberts well knew petitioner’s address; that by this false allegation he procured of the court an order that petitioner be served by publication instead of by actual service, thereby constituting a fraud on the court and on petitioner, by reason of which fraud she was deprived of her right to receive, and never did receive, actual notice of the filing of the action, and deprived of her opportunity to be heard; that this petition is brought during the term at which the decree was rendered, and instantly upon knowledge of the libel for divorce; ■and that she has a meritorious defense, and offers instantly to plead and to announce ready for trial. She prays} that the decree be set aside, and for such further relief as shall seem just and proper.</p> <p>It appearing by return of the sheriff, and by affidavit of petitioner’s counsel, that Edward B. Roberts did not reside within Georgia, the court passed an order that he be served by publi-. cation twice a month for two months before the December term, 1919. In the meantime, on September 17, 1919, the court issued a rule nisi, on the motion of Moselle Roberts, directing that Edward B. Roberts show cause on November 18, 1919, why the decree should not be set aside pursuant to the prayers of the motion. In response a general demurrer was filed, with a motion to dismiss the petition, on the following grounds: (1) That the court had no jurisdiction then to entertain the motion to set aside the' divorce decree, for the reason that the term at which the decree was passed had elapsed and another term had begun. (2) That no process was attached to the petition, it was not made returnable to any term of court, and the entire proceeding was null and void. (3) That any proceeding to set aside the decree on the ground of fraud (the term at which it was rendered having passed) must be in the nature of an equitable proceeding involving an issue of fact; such proceeding should pray for process, and there should be an appearance and a trial term; and the petition shows on its face' no compliance with the law in this respect. The demurrer was overruled, and the respondent excepted. In the brief of his counsel it was contended that the petitioner did not seek to set aside the order, presumably passed by the court in the divorce suit, declaring that service of that suit by publication had been perfected; and that such order was conclusive until set aside.</p>

<p>Equitable petition. Before Judge Park. Hancock superior court. February 16, 1920.</p> <p>R. C. Wiley and R. L. Merritt, suing as the bond commissioners of the City of Sparta, brought an equitable petition against the First National Bank of Sparta, Hancock County, the Third National Bank of Atlanta, Fulton County, the City of Sparta, and Robert Holmes, of Hancock County, and alleged substantially as follows: The two named banks are corporations •under the laws of the United States, and the City of Sparta is a municipal corporation under the laws of Georgia. By section 19 of the charter of that city (Acts of 1905, p. 1160) the mayor and aldermen of the city were authorized to elect or appoint a bond commission consisting of three citizens of the city, who should serve without compiensation, and to whom the treasurer of the city should turn over the sinking-fund on hand and an additional sum of $500 each January 1st as a sinking-fund to meet the bonded indebtedness of the city. The bond commissioners were required at first to loan the same, reporting investments to the mayor and aldermen, and to collect the interest, and, after- supplying any deficiency in the sinking-fund, to turn the remaining interest into the city treasury. By the act of 1910 (Ga. L. p. 100) the bond commission were required to invest in municipal bonds. This commission was made perpetual; vacancies were to be filled by the mayor and aldermen. By virtue of the act before mentioned the plaintiffs with John D. Walker were appointed as bond commissioners of the City of Sparta on or about May 1, 1906, and have since continued as such, except Walker, who, on or about September 27, 1917, absconded and removed from the city, and his whereabouts are unknown. No vacancy has been declared or filled because thereof; -and plaintiffs are now the sole acting bond commissioners of the city. Pursuant to the act of 1910, the bond commissioners, on or about September 30, 1911, invested the sinking-fund then available in their hands in municipal bonds as follows: $4,000 City of Jackson, Georgia, 5 per cent, bonds due December 1, 1935; $2,000 in Town of Thomson, Georgia, 5.-per cent, bonds due December 1, 1938; $1,000 City of Douglas 5 per cent, bonds due November 1, 1936; the amount paid by the commissioners of the City of Sparta for all of these bonds being $7,396.19, each bond being for the sum of $1,000 principal. On October 5, 1911, the bonds were deposited as a special deposit for safe-keeping with the First National Bank</p> <p>of Sparta, a receipt being taken therefor, a copy of which was attached to the petition. Subsequently two other bonds were purchased and added to those in the bank, and on June 15, 1912, four bonds of the City of Jackson, were exchanged for four bonds of like amount of the City of Sparta, which were placed in the First National Bank of Sparta for safekeeping along with the other bonds belonging to the sinking-fund. The First National Bank at that time, and since, was the custodian of the funds not invested by the bond commission, and had on hand as a general deposit the moneys belonging to the sinking-fund not invested in bonds. The bank collected the coupons on the bonds, depositing the proceeds tp the credit of the bond commission. The bank had authority to collect the coupons as due, borrowing the proceeds on general deposit on which it paid no interest until the same were invested or paid over to the city by the bond commission. The sum so collected each year by the bank from said bonds should have been not less than - dollars. Plaintiffs show that they have kept no account of what has been deposited .or drawn out for their account as bond commissioners since they became such to the present time, and they relied wholly on the bank to keep the account, and they do not know how the account stands or should stand. Plaintiffs have requested of the bank a statement of its account and a full showing of the facts in connection • therewith, but to the time of the filing of the present suit the bank has furnished the commissioners with none. On February 24, 1919, the plaintiffs demanded of the Sparta bank the possession of the bonds in its hands belonging to the sinking-fund, but the demand has not been - complied with. They have been informed that the bonds, in point of fact, are, or have been, in the hands of the Third National Bank of Atlanta, which is the banking correspondent of the First National Bank of Sparta. Plaintiffs do not know by what right or authority the Third National Bank holds the bonds. They expressly deny that they have at any time, or for any person, ever authorized their removal from the First National Bank of Sparta. They are informed that said Third National Bank claims to have acquired them as security for some alleged indebtedness of John D. Walker, or the First National Bank of Sparta; but plaintiffs allege that the bonds could not have been lawfully or validly pledged therefor. They are further informed that recently Robert Holmes, by taking, up the debt alleged to be secured by the bonds, acquired possession thereof, or some pretended interest therein. While in possession of the bonds the Third National Bank and Robert Holmes have collected coupons from time to time from the bonds in an amount unknown to plaintiffs. They have demanded of the Third National Bank and Robert Holmes full information and the surrender of the bonds, but the demand has not been complied with. Plaintiffs are entitled to the custody of the bonds, and to collect the income therefrom for the purpose of administering the same as provided by law. Though without legal title, perhaps, they have the right of possession, and have certain powers to be exercised in trust as aforesaid, and are trustees acting without compensation, and the fund is a trust fund which may be traced in equity into whosesoever hands such fund passes. To the end that they may perform their duties they are entitled to an accounting of the sinking-fund, whether in cash deposited on general deposit, or in bonds deposited on special deposit, and for collection of the coupons from the First National Bank; and to an accounting from the Third National Bank of Atlanta and Robert Holmes, of their dealings with the fund and the bonds and the coupons therefrom. Plaintiffs are further entitled to the direction of a court of equity as to their powers and duties in the premises, and as the facts may appear on investigation to be. Waiving discovery from any defendant, the plaintiffs pray: that the First National Bank of Sparta make a full and complete accounting of the cash belonging to the sinking-fund that passed into its hands, including the collection of coupons from bonds, and a full accounting of the bonds belonging to the sinking-fund, in its hands for safekeeping and for collection of coupons; that the Third National Bank of Atlanta and Robert Holmes likewise account for their dealings with the bonds and the coupons therefrom, and set up such rights as they claim therein, to the end that the rights and liabilities of all with respect to said bonds may be settled; that plaintiffs be given direction by the court as to their rights and duties in the premises, as they may on investigation appear to be; and for such other relief as is equitable. The petition was demurred to separately by the First National Bank and by Holmes, upon the grounds: (a) that it is multifarious; (b) that there is a misjoinder of causes of action; (c) that there is a misjoinder of parties defendant; and’ (d) because the title and right to the possession of the sinking-fund of the City of Sparta is vested in the city, which alone can maintain suit for the recovery thereof. The court overruled the demurrers on each and every ground.. To this judgment the defendants excepted.</p>

<p>Where oil behalf of two non-resident corporations, as transferees of a security deed or mortgage with power of sale, was published a notice of intention to exercise the power by sale in L. county, the notice being signed by two “attorneys or record” of the corporations (it not appearing where the attorneys resided), a petition to prevent such exercise and to cancel the instrument containing such power, not alleging that any agent of either corporation resided within R. county (whore the suit was brought), though bearing an official entry of personal service of a copy of the petition and process upon one of the “ attorneys of record,” referred to in the entry as “ attorney for defendant,” failed to show jurisdiction in the court wherein the suit was brought.</p>

Injunction. Before Judge Eve. Worth superior court. March 20, 1920. Mrs. Douglas, tenant for life (about fifty-eight years old), in consideration of $100 leased to Gleaton for a term of three years all of the timber, “ for the purpose of boxing and using for turpéntine purposes,” on the north half of a land lot containing about 245 or more acres, of which about 100 acres were in cultivation.

<p>1. The stipulation in a deed of conveyance by a debtor to his creditor, that “It is understood that should the said grantee depart this life before the grantor, then the above-described- property is to revert back to the said grantor and become his property as if this deed had not been made,” did not render the deed void because repugnant to paragraph 1 of section 3224 of the Civil Code, declaring void as to creditors a transfer, by a debtor insolvent at the time, of property to any one for the benefit of creditors, where any trust or benefit is reserved to the grantor or assignor.</p> <p>2. The court did not err in charging the jury that the plaintiff assumed the burden of proof, where, subsequently in his charge on the subject of transactions between husband and wife, he charged in the language of the code, that “ when a transaction between husband and wife is attacked for fraud by the creditors of either, the onus is on the husband and wife to show that the transaction was fair.”</p> <p>3. It is not made to appear how the plaintiff was injured by permitting a witness to state, in answer to a question propounded on cross-examination, that he did not as trustee of the bankrupt have anything in hand to pay the fees of the trustee, the referee, and the attorney. If the evidence was irrelevant, it was not hurtful.</p> <p>4. The admission in evidence of the testimony of the grantee in the deed under attack, that the grantor, the husband of the witness, had told her what he owed at the time the deed was executed, she testifying, “I know what he told me he was owing, and I believe he told me the truth,” could not have injured the plaintiff, so far as the ground of the motion itself shows; for it does not there appear that the husband stated the amount of his indebtedness.</p> <p>5. It was not error, over the objection that the answer of the witness stated a mere conclusion, to allow the grantor in the deed under attack to state that it was made in good faith.</p> <p>6. There was evidence authorizing the verdict.</p>

<p>Motion to reinstate. Before Judge Mathews. Bibb superior court. April 18, 1920.</p>

<p>Certiorari; from Court of Appeals. 25 Ga. App. 364.</p> <p>Majorie A. Beale, a minor, through her husband as next friend, sued for damages because of the negligent homicide of her father, alleging that the deceased was a widower at the time of his death and that she was his only minor child. One ground of demurrer to the petition was that it showed the plaintiff to be a married woman, and that therefore she was not entitled to maintain the action. The demurrer was overruled by the trial court. On review the Court of Appeals reversed this judgment. Thé case is here on certiorari.</p>

<p>Indictment for murder. Before Judge Thomas’. Thomas superior court. June 7, 1920.</p> <p>Mitch Jones was found guilty of the murder of Mary Lee • Thomas (a young unmarried woman) by shooting her with a gun, and was sentenced to life imprisonment. He excepted to the refusal of a new trial, contending (1) that it was error to admit testimony of dying declarations by the deceased, over objection that no proper legal foundation for their admission had been laid, it not having been shown that she was then in dying condition and knew that she was so: (2) that it was not proved beyond a reasonable doubt that she received the wound in Thomas county, where the venue was laid; and (3) that the verdict was contrary to law and evidence.</p> <p>The testimony tended to prove the following: The accused (who lived with, another woman as his wife) declared, two or three weeks before the homicide, that he loved Mary Lee Thomas, and that if she ever tried to get away from him he would kill her. On the morning of the day of the homicide (Wednesday) he was seen following her and carrying a shotgun; and in the evening 'he was again seen with her on the road in Thomas county that led to her house, which also was in that county. Soon thereafter a gunshot was heard, and the accused was seen going into his house, then coming out after leaving his gun therein, and then going toward the railroad station; not long after which he was seen accompanying or leading Mary Lee Thomas to the gate of her home. She was bloody, and had a wound in her head, made by birdshot. She was unconscious on Thursday. On Friday she regained consciousness; and while she was conscious the attending physician (who had already told her that she was in bad shape) said in her presence and hearing, to her mother, that she was more apt to die than to live. She was then in a dying condition, though she did not die until the second day afterward. Presently after' the physician’s statement just mentioned, she said, in answer to his questions, that Mitch Jones.shot her, and that she did not know why he did it.</p>

<p>Complaint for land. Before Judge Park. Hancock superior court. May 28, 1920.</p>

Petition for injunction. Before Judge Searcy. Butts superior court. December 17, 1919.

<p>Ejectment. Before Judge Hutcheson. DeKalb superior court. January 3, 1920.</p>

<p>Temporary alimony, etc. Before Judge Harrell. Orady superior court. March 9, 1920.</p>

<p>Complaint for land. Before Judge Littlejohn. Webster superior court. February 12, 1920.</p>

<p>Equitable petition. Before Judge Hodges. Oglethorpe superior court. March 25, 1920.</p>

Before Judge Thomas. Bibb superior court. May 8, 1920. H. Lee Cross was tried during the February, 1920, term of Bibb superior court, under an indictment charging murder. Yerdict of guilty, with recommendation, was returned. A motion for new trial was made.

<p>Petition for injunction. Before Judge Bell. Fulton superior court. May 1, 1920.</p>

<p>Where a motion for a new trial has been duly filed in term, and the judge by appropriate order names a day certain in vacation for the hearing and determination, the judge is without jurisdiction on a subsequent day in vacation, the motion not having been continued to such subsequent day by valid order, to pass an order continuing, or a judgment dismissing such motion.</p> <p>(») An agreement of counsel, in writing, that such motion be continued to a subsequent named day in vacation, even if sufficient to confer jurisdiction on the court during that day, will not confer such jurisdiction for a different day in vacation.</p> <p>(6) Where through no fault of the movant a motion for new trial is not heard in vacation on the day named nor continued to a later day in vacation by a valid order, the motion stands for a hearing at the next term as if no order had been taken.</p>

Ejectment. Before Judge Littlejohn. Macon superior court. May 12, 1920. R. A. Slappey'and George P. Slappey, infants under the age of 21 years, brought ejectment against J. B. Vining, to recover certain described land. The land sued for was owned in fee simple and was in the possession of George PI. 'Slappej'', the grandfather of the plaintiffs, on April 15, 1881.

<p>1. Under a bequest of land to three daughters of the testator, “ and to the children of their bodies born or to be born,” the daughters to take per capita and the grandchildren to take per stirpes, provided that the interest of one of the daughters (H.), should she die without issue, shall descend equally to the other two daughters and their children, and there shall be no sale or division of the property until the youngest of the grandchildren shall be of full age and until the possibility of issue is extinct in the three dartghters; where it appears that the daughter H. has survived the period for vesting and distribution of the estate, that she has never had a child, and that the other two daughters are dead and their children have passed' majority: held, that the estate taken by IT. is not absolute and in fee simple, but that it will terminate upon her dying without issue. An agreement upon a statement of fact that the possibility of issue is extinct in a female will not overcome the presumption of law to the contrary.</p> <p>2. The decree for sale and distribution of property, based on an erroneous construction of a will as to the estate devised, will be set aside though certain parts of it were not expressly excepted to.</p>

<p>Indictment for murder. Before Judge Mathews. Bibb superior court. April 3, 1920.</p> <p>The evidence for the State tended to show substantially as follows: The deceased (Clance) lived diagonally across Third Street from the defendant (Shepherd). For some years there had existed between them and their families the most cordial terms of friendship. About two weeks prior to the shooting the defendant made certain offensive remarks to a married daughter of the deceased. The wife of the deceased was told by the daughter of these remarks; and at this time a younger daughter also told the mother that the defendant endeavored to get in the bed where she and her sister were sleeping on an occasion when they had spent the night in his home about four years previously, but concerning this she had not until this time said anything to any one. Mrs. Glance communicated these things to the deceased, and his family discontinued relations with the family of the defendant. The defendant was in the habit of carrying a pistol. In the afternoon of the date on which the shooting occurred, Mrs. Smith, the married daughter of the deceased, told a neighbor living next door to the defendant of his having insulted her. At about ten o’clock that night the defendant went across the -street to the Clance home, and asked in a loud angry tone to see Mr. Clance, or where he was, and, upon being told that he- was asleep, asked Mrs. Smith why she was going around telling lies on him, and stated that whoever said he insulted her told a lie, and that if it was not stopped there would be one of the biggest fights there ever had been in the l'SOO block. The younger daughter then asked him what lie considered an insult, and if lie did not recall the occasion on which he had come to her bed, to which the defendant replied, "That is a story.” Clance then came upon the veranda and took a seat in a chair. The defendant stated to Clance that he wished to talk with him privately, and was told by Clance to say whatever he had to say. The defendant then stated that whoever said he had insulted them (the daughters of deceased) told a damned lie. The deceased struck the defendant with his fist; they grappled, fighting with their fists, and shuffled along several feet away from the house. Two sons of the defendant, who were practically grown, ran across the street and entered the fight. A visitor to the Clance home (Tom Smith), upon Mrs. Clance’s request, endeavored to stop the fight. A daughter of the deceased endeavored to separate the combatants, and was knocked down. In the general fight the defendant was knocked down, and as he rose one of his sons knocked the deceased down, and as he was rising, and while still in a stooping posture with his hands upon the ground, the defendant drew his pistol and fired at close range, the bullet striking the deceased in the back, inflicting a fatal wound.</p> <p>The defendant’s contentions, by his statement and evidence introduced in his behalf, were: That the shooting was done in self-defense. He was employed on a railroad wrecking-crew, which included a number of negro workmen. He was at times called to his work at unusual hours, and as a means of protection it had been his custom to carry a pistol. He had the pistol in his pocket according to this custom. Immediately prior to the shooting he had returned home from a trip up town, and was told by a son, who had overheard Mrs. Smith’s statements to his next-door neighbor, of what she had said. He then went to see Mr. Clance as the head of the family, and requested a private interview, stating to him that they could not talk with the women butting in; and the deceased stated he was ready to hear whatever defendant had to say. The younger daughter related her statement that the defendant had come to her bed; whereupon the deceased struck defendant with his fist, causing the latter to stagger backward four or five feet, and they went to fighting with their fists. All of the women present took part, hitting at defendant, and Tom Smith struck him. Mrs. Clance and Tom Smith picked up bricks in a threatening manner. Neither of the defendant’s boys actually reached the scene until after the shooting, and did not take any part in the fighting. The deceased had hold of the defendant’s throat, had him'down upon the ground, and both the deceased and Tom Smith were upon_ the defendant and beating him when the shot was fired. The jury returned a verdict of guilty, with recommendation; whereupon the defendant filed a motion for new trial, which was overruled, and he excepted. The grounds of the motion are dealt with' in the headnotes.</p>

<p>Indictment for rape. Before Judge G-rabam. Bleckley superior court. March 20, 1920.</p>

<p>Money rule. Before Judge Harrell. Dougherty superior court. October 30, 1919.</p>

<p>Petition for quo warranto. Before Judge Meldrim. Chatham superior court. March 1, 1920.</p>

<p>Where no return of service is indorsed upon or annexed to a bill of exceptions (no acknowledgment of service having been made), the writ of error will be dismissed. Service of such bill of exceptions can not be shown in the Supreme Court by an entry of service by the sheriff, or by an affidavit of service by counsel for plaintiff in error, made after the writ of error has been filed in the office of the clerk of the Supreme Court, although such entry of service and affidavit of service are filed in the office of the clerk of the trial court and by him transmitted to the Supreme Court.</p>

<p>1. A homestead, under the Civil Code, § 3416, describing the exempted land as the lands of the applicant and as lying and being in th# county of Liberty, State of Georgia, naming the persons whose lands constitute the boundaries on the north, east, south, and west sides of the exempted land, and the acreage within the boundaries, is sufficiently definite, in point of description, to impart constructive notice, although the schedule fails to show the district in which the land is situated.</p> <p>2. Where a homestead describes the exempted land by naming the persons whose lands constitute the respective boundaries of the exempted tract, evidence that the ownership of the adjoining tracts has changed since the setting apart of the homestead is relevant, and does not vary or contradict the terms of the homestead.</p>

<p>The questions propounded by the Court of Appeals in the present case are not such as this court is required or authorized to answer, under the law authorizing the Court of Appeals to certify questions to the Supreme Court.</p>

<p>Equitable petition. Before Judge Park. Baldwin superior court. February 16, 1920.</p>

Equitable petition. Before Judge Cobb. Jackson superior court. February 5, 1920. The action was brought by George W. Bailey, on July 16, 1918, against John 0. Turner, the Jefferson Banking Company, and John C. Turner as executor of the will of Mrs. Sarah A. Turner, deceased.

Certiorari; from Court of Appeals. 24 Ga. App. 758. Held: and the vote was declared to be in favor of the issuance of bonds to the amount of $500,000.